ONE AND DONE (OR NOT)

Tuesday, November 29, 2011 5:50 PM

- Intentional Torts Prima Facie Case Did the defendant commit the act? Act - volitional movement by the defendant Was there an intent to commit the act? Was there causation? Intent Intent person acting intentionally if they desire to produce the legally forbidden concept A person knows with substantial certainty that a particular effect will occur as a result of his action (virtual certainty) Substantial certainty- certain that actions will bring harm to a particular victim,or someone in a small class of potential victim Restatement 3d 1: A person acts with intent if: (a) person has the purpose of producing the consequence, OR (b) person knows or should now that with substantial certainty that the consequences will result from his act LIMIT Only applies to a particular victim or a small class of particular victims (aka not 3d parties) Transferred intent In most jurisdictions, parents are not liable for their children's actions so long as you intend to produce one forbidden consequence, if anything else happens to injury someone, that is good enough to be considered intent Almost always an accident rather than intentional (legal fiction) Restatement 2d 16: A intends battery on B, but instead hits C: transferred intent met A intends to assault B, but instead commits act of battery on B: transferred intent met Applies where defendant intends to commit a tort against one person but Commits a different tort against that person Commits the same tort as intended but against a different person Commits a different tort against a different person Case Singer v. Mary (TIMMMMYYY) Recklessness Restatement 3d 2: a person engages in reckless conduct if: (a) person knows or should know of risk of harm created by conduct (b) eliminating or reducing risk would be a slight burden relative to magnitude of the risk of harm Reckless DOES NOT EQUAL intention Battery Battery is the intentional infliction of a harmful or offensive bodily contact Goal: protect the integrity of the body Prima Facie Case An act by the defendant that brings about harmful or offensive contact to the plaintiff's person Intent on the part of the defendant to bring harmful or offensive contact to the plaintiff causation Policy issue
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 Policy issue Statute of limitations is short in order to preserve evidence; why would you wait? Establishing a battery: Intent for battery Intended to cause an offensive or harmful contact Intended to cause apprehension of offensive or harmful contact Sufficient to intend the action even if accident was unintentional Two elements (in addition to intent) Has their been a harmful or offensive contact? Harmful - anything that causes you to bleed, break a bone, sends you to the hospital, it is self evident Offensive- if it offends a reasonable sense of dignity; denying people the right to complain about idiosyncratic issues that affect them and them Invasion of bodily autonomy - don't need to be physical contact, or present at the time of contact; ie trip wire, digging a hole Defendant is liable for setting in motion a force that brings about harmful or offensive contact Don't need to be conscious when the contact occurs for it to be considered a battery Was the contact with the plaintiff's body? Anything that you're holding or touching becomes part of your body; There is a limit to what you're touching (I am doubtful a court would stretch the limit this far) Assault Prima Facie Case An act by the defendant creating reasonable apprehension in the plaintiff of immediate harmful or offensive contact of the plaintiff's person Intent on the part of the defendant to bring babout in the plaintiff apprehension of immediate harm or offensive contact with the plaintiff's person causation Policy Statute of limitations is short in order to preserve evidence, why would you wait? Assault is when a defendant intentionally puts the plaintiff in an immediate apprehension of harmful or offensive contact Goal: Protects peace of mind Very limited tort, prevents you from being emotional disturbed/mentally agitated Intent for assault Intended to cause an offensive or harmful contact Intended to cause apprehension of offensive or harmful contact Two Elements (in addition to intent) Did the defendant place the plaintiff in reasonable apprehension? Unloaded gun problem - what if its a bluff (threaten to shoot but the gun is unloaded)? You must put yourself in the plaintiff's position-- if he knows the gun is unloaded its not an assault, if he doesn't know that is enough to recover Don't need to know to a certainty, just reasonable apprehension "apparent ability can create a reasonable apprehension" Apprehension is of an immediate battery Imminent/immediate - TIMING IS SIGNIFICANT The threat of future harm does not apply Restatement: words alone lack immediacy A verbal threat without any gestures is not an assault Look for a menacing gesture Not an assault if there are accompanying words that negate the immediacy of the gesture A conditional threat (if you dont do x...i wil do y) IS an assault Promises battery in the future does not equal battery Intentional Infliction of Emotional Distress
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 Intentional Infliction of Emotional Distress Prima Facie Case An act by the defendant amounting to extreme and outrageous contact Intent on the part of the defendant to cause the plaintiff to suffer severe emotional distress or recklessness as to the effect of the defendant's conduct Causation Damages Intent Defendant's desire to cause the plaintiff emotional distress OR The defendant knows with substantial certainty that the plaintiff will suffer emotional distress OR The defendant recklessly disregards the high probability that emotional distress will occur IIED is the intentional or reckless infliction by extreme and outrageous conduct, of severe emotional/mental distress Two Elements (in additional to intent) Defendant must engage in outrageous conduct Restatement- conduct that exceeds all bounds of decency tolerated in a civilized society Outrageous conduct- methodology of producing a particular result; the certain way of distressing people is a problem; Indicators of outrageous behavior Power disparity - economic (employer/employee), socially constructed (majority/minority), Repetitive conduct Public v. private- more distressing if public Plaintiff is of unusual vulnerability that the defendant knows Not a tort to deliberately distress someone through non-outrageous conduct (i.e. a breakup, firing someone, etc) Plaintiff must suffer severe distress No specific showing that has to be made - don't need to demonstrate that the distress led to physical manifestations (helps the cases but not required), don't need to show you went to the doctor (helps the case but not required) Just need to find the distress is severe Questions to consider: Would a reasonable person be distressed? Did defendant know of a particular sensitivity? Jones v. Clinton Issue is that she never missed a day of work couldn't show that it wasn't more than temporarily upsetting Trespass Considered good public policy Trespass to Land Prima Facie Case An act of physical invasion of the plaintiff's real property by the defendant Intent on the defendant's part to bring about physical invasion of plaintiff's real property causation Trespass to land occurs as soon as there is an intentional physical invasion of land without the owner's permission The only intent is that you got to the location on purpose, you dont need to know you crossed the boundary line - doesn't matter if it was a mistake Flying at a low altitude may be a trespass By putting something on a the land (even if you don't go on the land yourself) is trespass -the thing you put on the land has to be tangible (light and smell is not acceptable) Physical invasion- must enter the land or put something on it Can be held liable for trespass once you have been asked to leave (even if you entered legally) Trespass to Chattel Prima Facie Case
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 Prima Facie Case An act of the defendant that interferes with the plaintiff's right of possession of the chattel Intent to perform the ct bring about the interference with the plaintiff's right of possession Causation Damages (only pays damages, not full value) Trespass to chattel happens when there is an intentional interference with use or possession of chattel. Resulting in damage in that interest Good faith belief/mistake that chattel belongs to the defendant is not defense. Interference: Any sort of destruction/damage Conversion Taking control over chattel in a way that is so substantial that it interferes with the right of the owner actor must pay for the chattel (full value) Duration of control, good or bad faith, inconvenience to the plaintiff, and harm done to the property Mistake is not a defense How to commit: acquiring possession, transfer to a third person, withholding good, destruction Loss of Possession If plaintiff loses possession of the chattel for any period of time, recovery is allowed even if chattel is returned unharmed loss of use Conversion v. Trespass to Chattel Duration of the defendant's dominion over the property Harm done to the property Trespass to chattels- having possession oand doing no damage Conversion- taking possession of chattel and using it as your own Affirmative Defenses Insanity Generally would not be construed as a defense to an intentional, but makes it harder to prove intent Dual Intent Standard A jury, as trier of fact, may conclude that a mentally deficient person is liable for their tortious conduct. However, in doing so, the jury must find that the actor intended offensive and harmful contact. Consent You must have legal capacity to give legal consent CANNOT if you are: drunk, crazy, developmentally disabled, Children - children can consent to age appropriate invasions (as children get older the range of things they can consent to gets bigger) Restatement 2d 892A: effect of consent One who effectively consents to a conduct of another intended to invade his interest interests cannot recover in an action of tort for the conduct of harm resulting from it Express Consent A literal statement granting someone permission to act in a way that otherwise may be considered a tort Fraud or duress negates the express consent; it is as if the consent was not given Fraud is usually the omission of some important piece of information or misrepresentation of a key fact Misrepresentation - often a key fact of identity (i.e. pretending to be a doctor) Omission - doesn't share info that is needed (i.e. STD and not sharing with partner) The defendant is not liable for interference Implied Consent By custom/common practice, conduct (circumstances), words, or by law
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 By custom/common practice, conduct (circumstances), words, or by law Not necessarily a call and response consent That which a reasonable person would infer from plaintiff's contact If it seemed reasonable to defendant to believe that he had consent from the plaintiff, it doesn't matter exactly what the plaintiff was intending Implied as a matter of law if: the plaintiff is unable to give consent Immediate action is necessary for their health there is no indication that they would not consent if they were able to A reasonable person would consent Examples People are able to walk up to the door of your house to sell things Allowed to go to business Sports - agree to do something b/c its part of the game Doctors doing a medical exam Implied consent that is case specific and related to the plaintiff's own conduct (body language consent - ish) Case where the defendant is interacting with the plaintiff and infers permission to act Require reasonable interpretation CONSENT HAS A DURATION AND SCOPE -- just because you consent to something now, doesn't mean that you consent to it in the future and there is a limitation on the extent of what you agreeed to Not an absolute doctrine, it does not act as a blank check; there is always a scope of the consent When its implied consent its hard to define the scope Medical Consent Plaintiff must prove that a reasonable patient, under the circumstances, if adequately apprised of the risk, would have refused treatment In an emergency, surgery beyond what was consented to may be justified Self Defense Not only where there is a real threat of harm, but where the defendant reasonably believes that there is one Only can use force to avoid force which is imminent Degree of force- only degree of force necessary to prevent threatened harm may be used Deadly force- to use, danger to self must be death or serious bodily harm Only for protection -Defense applies only where defense use the force to protect himself against harm Retaliation- can't use force for retaliation for a tort already committed Imminence- only can use force when harm is imminent Verbal provocation - cant use force in response to a verbal provocation Affirmative defense - only can recover if self-defense was proportional to the threat Duty to retreat Restatement 2d 65: can use non-deadly force instead of retreat but cannot use deadly force in lieu of retreating except if he is in his own dwelling/defending his dwelling **majority of jurisdictions have not adopted this Defense of Person Defense of Property A person may generally use reasonable force to defend their property (both land and chattels) How To Make a verbal demand of the intruder to stop, unless it appears violence will occur immediately, or that the request to stop will be useless Defense of the property is limited to preventing the commission of a tort against the defendant's property Deadly force Owner may only use where
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 Non deadly force will not suffice The owner reasonably believes that without deadly force, death or serious bodily harm will occur Mechanical devices - requires the same notice as if you're acting; deadly force Recapture of property Restatement Page 94; UNDER NO CIRCUMSTANCE can deadly force be used to recapture chattels Look for two things Timing - need to be acting in the heat of the moment, have to be responding to an imminent threat or an act in progress; if its over its over; Reasonable belief that the threat is genuine Rule of proportionality- you can respond with force appropriate for the circumstances You can NEVER use deadly force to protect property Can't use deadly mechanical devices Types Defense of Others - a person may use reasonable force to Defense of Property Public and Private Necessity Necessity defenses only apply to property torts Public Involves a defendant invading property (public or private) in an emergency in order to protect the community as a whole Property owner is SOL (insurance will help) Absolute defense Statutory schemes for compensating those who have property destroyed in various situations If the government take the property, it has to pays (imminent domain) Private Restatement 2d 263 Is or is reasonably believed to be reasonable or necessary to protect the person or property of the actor or of others Invading property in an emergency for a self-interested reason/private motive Not an absolute defense Provides an immunity against technical liability You don't have to pay nominal or punitive damages (benefit based remedy) Remain liable for any actual harm done-- need to pay for the harm you do As long as the emergency continues, you have a right to remain safely on the plaintiff's land (right of sanctuary) If the plaintiff throws someone out, they are liable Privilege ends when the emergency ends - Negligence Negligence occurs when defendant's conduct imposes an unreasonable risk upon another, which results in injury to that other. The tortfeasor's mental state is irrelevant Liable when he caused harm because he acted with insufficient care Umbrella tort concept...but still has precise elements Each of the elements pick up where the one before left off Risk must be both foreseeable and unreasonable Four Elements Duty Restatements 2d 6: Negligent Conduct Actor usually has a duty to exercise reasonable care when his conduct creates a risk of physical harm to others Universally regarded as the most important element You must take the amount of precaution as would be taken by a "reasonably prudent person acting under similar circumstances" Applies universally Stupid people, crazy people, beginners -- b/c the standard is object, they will be held to the standard of a reasonable person despite their disability
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held to the standard of a reasonable person despite their disability NEED THE CIRCUMSTANCES I.e. Emergencies - if a person is in an emergency situation, they are held to the standard of care a reasonable person in a similar situation would use Exceptions Superior intelligence/skill of the defendant - standard increases upwards; not a matter of intelligence Physical Condition Restatement 3d 11(a) - the conduct of an actor with a disability is negligent only if he doesn't conform to that of a reasonable person with that disability Calculating Risk Restatement 2d 292 - utility of actors conduct must be considered in determining negligence, balancing ability of safer method and social value attached to the interest advanced by the conduct Restatement 3d 3 - conduct is negligent if its disadvantages outweigh its advantages while conduct is not negligent if its advantage outweighs its disadvantage Hand Formula - Calculus of Risk If burden < cost of injury X probability of occurrence standard of care not met If burden is cost of injury X probability of occurrence standard of care is likely met If the burden of preventing loss is greater than the probability of loss multiplied by the gravity of injury, then the defendant does not have a duty to prevent loss Restatement 2d 291 - Person is negligent and risk is unreasonable if the gravity of risk outweighs the social utility of performing the act Social Utility Social value of act Probability that value will be achieved through act Probability that benefit could be achieved through activity of less risk Gravity of Risk Social value attached to what is in danger Probability that actor will cause injury to this interest Extent of harm likely to be caused; number of people whose interest will be injured Ordinary care does not provide protection from all harm Customs and Standard of Care Generally, courts will consider a defendant not following custom as some evidence of negligence if custom is designed to promote safety Expert testimony A person able to testify on matters of fact based on their knowledge Jury generally free to disregard expert testimony; however in mal prac cases the jury can't disagree with what the expert has said Medical Malpractice (see professional a little further down) Custom Must act with the level of skill and learning commonly possessed by member of the profession in good standing If a specialist - held to the standard of the specialist Informed Consent Doctrine Duty of doctor to disclose all info relevant to the procedure/treatment Physician failed to inform plaintiff of relevant info Prove they consent without being fully aware of the Prove that reasonable plaintiff would not have consent Treatment caused injury Duty to warn and advise as a matter of law
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 Duty to warn and advise as a matter of law Informed consent- part of professional duty to adequately disclose risks of proposed treatments that are sufficiently material that a reasonable patient would take them into account in deciding whether to undergo the treatment Need expert testimony to establish what the standard right Failure to warn- negligent because of omission Special Duty Scenarios Restatement 3d 7 Court can determine whether or not the actor had a duty other than the reasonably prudent level of care Children Children under the age of 4 or 5 cannot be held liable for negligent act 5-18: the standard of care for a child is to behave like a hypothetical child of similar age, experience, and intelligence acting under similar circumstances -each kid is held to a different standard of care (which tends to make it prodefendant) -- jury applies their outside experience [Restatement 3d 10] If a child under the age of 18 is engaged in an adult activity, that child is held to the default reasonably prudent person standard of care (i.e. operating a car) courts don't always agree on what an adult activity is Professionals (see medical malpractice above) Those who offer services for a fee to customers or clients Most common = healthcare provider Professional must provide that level of care which is given with the average member of care of someone in that profession providing the same service not universal, APPROXIMATE Conformist rule -- do it the way all the other people of the profession do it When in front of a jury - you give an expert witness, they explain what the standard of care is Some say the standard is from your community, some say the standard is from a similar community, some say the standard is that of everywhere Strict locality Similar locality NOW mostly a national standard for the same class to which the defendant belongs Possessor of Land Duty to protect entrants from dangerous conditions Used differently depending on the type of land. Static condition and the entrant on the real estate is going to get heard Types of Entrants Trespasser Undiscovered Trespassers someone who comes on the property without permission and the owner doesn't know that they are there Duty of care: ZERO duty owed Discovered Trespasser Individuals who come on the land without permission and the landowner knows they are there or the should expect them to be there (discovered and anticipated) Duty of care: limited duty; duty to protect only against known, man made death traps on the land (his phrase not authoritative) Condition must be artificial (built by man)(no duty to protect from natural conditions) Condition has to be highly dangerous (kill or very badly injure someone) (don't owe anyone a duty to protect from something that is mildly dangerous)
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 Licensee Person who has permission to enter land as a social guest Way to remember (L, people you like) Come on the land with permission but do not confer any economic benefit on the possessor Most common type: social guest Duty: 2 part test condition that is concealed from the licensee and Condition that the possessor knows in advance by the possessor General Duty Statement: landowner is liable for wanton or willful negligence and has a duty to warn of known harms Invitees Invited onto the land for mutual benefit of landowner and invitee Enter land with permission Either they confer an economic benefit OR the land is open to everyone generally for the public at large. Duty: Two part test Concealed hazardous condition Condition must be one that the possessor could have discovered through a reasonable inspection (known or could have known about) Reasonable inspection- one taken by a reasonably prudent person General Duty Statement: landowner owes invitees a reasonable standard of care and a duty to investigate Restatement 2d 332 Public invitee - enter as a member of the public for the purpose Business invitee Roland v. Christian CA abolished this scheme, get rid of the complexity, made it all be reasonable under the circumstances, This is a VERY SIGNIFICANT minority position. Still don't get rid of trespass Trespassing children Treats them more generously than trespassing adults Must exercise reasonable care to prevent trespassing kids from getting hurt Attractive Nuisance doctrine How likely is it that kids will trespass (the more likely, the safer you should make your property) Restatement 2d 339 Attractive nuisance doctrine - landowner has a duty to prevent harm to child trespassers if: Children are likely to trespass Condition of land involves an unreasonable risk of death or serious harm Condition is artificial (not natural) Children, because of youth, would not understand this danger Utility of keeping this feature of the land is slight
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from something that is mildly dangerous) Condition must be concealed from the entrant (must be a hidden or secret condition) (no duty for an open or obvious condition--gives notice of its own danger) Condition must be known to the landowner in advance

 Landlords Duty to take minimal precautions to prevent criminal acts to tenants (if there has been previous indication that criminal could occur--be a it a guard or history of criminal of criminal activity) Liable for injuries resulting from defective and dangerous conditions on the premises if injury caused from: Hidden danger that landlord but not tenant knew of Premises leased for public use Premises are under landlord's control - i.e. common stairways Premises negligently repaired No duty to correct natural conditions Employers Restatement 2d 314(b): Employers Employer has a duty to protect an employee who is in imminent danger and employer knows tis If employee is hurt while working within scope of employment and employer knows this, employer is liable if he does not give care to employee 2 ways to satisfy the duty Fix the condition A warning fully satisfies the duty Statutory Duties and Negligence Per Se Prima Facie Case Plaintiff in the class intended to be protected by the statute Statue was designed to prevent the type of harm the plaintiff suffered The statute must be clear as to what standard of conduct expected, when expected, and whom it is expected to Violation of the statute caused the injury Class of person and class of risk Did the defendant violate the statute? Borrowing a statute - using the criminal law statute and having the judge use it as the standard Negligence per se - negligence per se because there is no evaluative function It doesnt matter if the defendant had a good reason...duty was to follow the statute HUGE for plaintiff NPS doctrine - plaintiff will have established a conclusive presumption of duty and breach of duty Restatement 3d "an actor is negligent if with out excuse, the actor violates a statute that is designed to protect against the type of accident the actor's conduct causes, and the accident victim is within the class of persons the statute is designed to protect MAJ: conclusive evidence of negligence per se MIN: merely evidence (not NPS) Compliance does not mean that duty of care was met Statutory negligence will not always be satisfied by the two pronged test; exceptions are: Complying with the statute would be more dangerous than ignoring it Litigate under the reasonably prudent person in the circumstances standard Tedlove v. Elman - omission by plaintiff of safeguard constitutes
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Utility of keeping this feature of the land is slight compared to risk of harm AND does not exercise reasonable care to reduce danger EXCEPTIONS: child can realize the danger; if condition is essential to use of the land

 Tedlove v. Elman - omission by plaintiff of safeguard constitutes negligence; but they had good cause b/c Compliance with the statute was impossible under the circumstances Litigate under the reasonably prudent person in the circumstances standard ??Defendant had some sort of huge disability that caused violation of the statute Restatement 3d 113 An actor is negligent if, without excuse, the actor violates a statute that is designed to protect against the type of accident that actor's conduct causes, and the accident victim is within the class of person the statute is designed to protect Duties to Act Affirmatively Situations when the defendant owes plaintiff less than a regular duty Defendant has no duty to take affirmative action to help the plaintiff Defendant has no general duty to avoid causing unintended metnal suffering Defendant has no duty to avoid causing pure economic loss to plaintiff in absense of more teangible types of harm like physical injury Exceptions: Special relationships Injury to plaintiff is due to defendant's conduct, defendant has duty of assistance Where victime and defendant are engage in a common pursuit There are no duties to act affirmatively - b/c there is no duty to do anything in the first place, you have no duty to rescue someone in peril 2 exceptions If there is a pre-existing relationship between the parties that could trigger a duty to rescue (employer/employee, carrier/passenger, landowner/invitee, innkeeper/guest, school/students, custodian/those in custody, etc. ) If you cause a person's peril, you've triggered the duty What is the duty for these exceptions? Duty of reasonable prudence under the circumstances Never requires the defendant to put their life in jeopardy Anyone who chooses to rescue, you are acting voluntarily Once you choose to rescue, you are liable if you mess up Good Samaritan laws Insulate the gratuitous rescuer from liability Very variable from state to state Duty to Rescue if: Restatement 2d 324A The defendant is liable if begins a rescue attempt and does not use reasonable care Defendant is liable if discontinues aid, and plaintiff is in a worse or equal situation as before Restatement 2d 322 If defendant injured the plaintiff, then the defendant must take reasonable measures to prevent further injury Restatement 2d 321 If no harm is foreseeable, defendant has a duty to prevent the risk of harm to plaintiff once defendant realizes that there is a harm State statutes p. 462-63 about emergency care! If a defendant has a duty to control they have to fulfill that duty; however in most relationship you do not have that duty Determining Foreseeability
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 Determining Foreseeability Balancing test Balances the foreseeability of harm against the burden of imposing a duty against the criminal acts of third person General warnings 485-86 Firefighters Rule Firefighter's assume the risk of fighting the fire and can't sue negligent individuals who required assistance If you CAN warn, then you should Restatements 2d One who takes charge of another is subject to liability for bodily harm caused to him by failure of actor to exercise reaosnble care Discontinuing aid/protection Negligent Infliction of Emotional Distress Policy Concerns - fraudulent claims Primary Victim Actual physical injury occurred due to the defendant's negligence (then the defendant is liable for NIED too) Manifesting physical injuries Show that the plaintiff was endangered by defendant's negligence Defendant does not contact plaintiff Plaintiff suffers emotional distress that manifests in physical symptoms No resulting physical injury If NIED results from the defendant's negligence, to recover, generally the plaintiff must also show that he suffered another injury (not necessarily physical Few court will allow plaintiff to recover for NIED only Bystander (the follower of the impact rule) Bystander rule - the plaintiff's distress was a reasonably foreseeable result of the accident Recovery out of the "zone of danger" severe emotional distress Close relationship to the victim Presence at the scene Suffering of "zone of danger" If the plaintiff sees the accident to the third party If the plaintiff was in physical danger also but not injured Plaintiff may recover any emotional distress due to seeing other person's injury Close relationship Plaintiff observes danger/presence of scene Injured party is a close relative to plaintiff (this is defined differently depending on the jurisidiction) Plaintiff may recover Plaintiff witnesses a severe negligent injury to a close family member result is a feel of emotional distress, the emotion is grief or sadness Close family member is defined differently depending on the state Some require the distressed person to be at the scene at the time of the accident (CA), others allow recovery if you come on the scene immediately after (MI) A MINORITY OF STATES ALLOW NO PHYSICAL MANIFESTATION Policy = foreseeability Relationship Distress
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 Relationship Distress Parties are in a preexisting relationship with each other and distress is a highly foreseeable consequence of negligence (dr/patient, etc) Most states do no permit recovery for NIED for property damage Breach Involves identification of wrongful behavior This is unreasonable because. Because comes from what you know Res Ipsa Loquitor (the thing speaks for itself) Allow plaintiff to point to the fact of the accident and to create an inference that even without a precise showing of how a defendant behave defendant was probably negligent RIL permits circumstantial evidence for negligence under certain conditions (always for jury to decide if defendant is negligent if RIL is used) No direct evidence exists (or plaintiff cannot get evidence/evidence is only in the possession of the defendant) **RIL is not negligence per se or strict liability. It merely allows the plaintiff to use circumstantial evidence to support his case and shifts the burden of proof to the defendant Restatements Restatement 2d 329D It may be inferred that the harm suffered by the plaintiff is caused by negligence of the defendant when The event is of a kind which ordinarily does not occur in the absence of the negligence Other responsible causes including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evience The indicated negligence is within the scope of the defendants duty to the plaintiff Restatement 3d 17 The fact finder may infer that the defendant has been negligent when the accident causing the plaintiff's physical harm is a type of accident that ordinarily happens as a result of the negligence of a class of actors of which the defendant is a relevant member In some cases a plaintiff does not have any information about what a defendant did wrong Doctrine is used by plaintiff's who don't know what went wrong To invoke the test you have to fulfill two prongs Plaintiff has to show that the accident is of a type normally associated with negligence Implicates a rule based on probability Accident would normally be due to the negligence of someone in the defendant's position Show that the defendant had control over the item that caused the injury or accident Control usually demonstrates probable responsibility Cases can come out either way, even if the burden is shifted Effects - permits an inference that defendant was negligent ****Defendant's burden of proof is only to show that his version is only as likely as the plaintiff's version Conditional Res Ipsa Loquitor Doctrine in CA Applied where: There is evidence that the unfortunate results of an operation could have been caused by negligence There is some evidence of negligent acts on the part of the defendant that could have caused these results but not enough proof to make it more likely than not that the results were in fact caused by the defendant's negligence
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negligence Causation Factual cause Increasing movement towards "substantial cause" Did the defendant's act factually cause the plaintiff's injury? But For Test Whether but for the breach the plaintiff would be uninjured today Rebuttal to a but for argument is an even if argument Question is whether the breach is the actual cause Established if High correlation of the two events No other plausible explanation of the events But For Part II Had defendant not act negligently, the plaintiff's injuries would not have occurred Joint tortfeasors = multiple but for causes Must be highly probably Concurrent causes Sometimes the defendants conduct can meet the "cause in fact" requirement without being the "but for" cause - this happens when two events concur to cause the harm and neither one would have been sufficient to cause or substantially cause the same harm without the other Each of the concurring events is deemed cause in fact of the injury Group Liability Restatement 2 876 A person is liable for the tortious conduct of another person if that person: Acting in concert or with shared design or purpose/orders or induces such conducts and knows harm will occur Knows actor breaches duty and gives substantial assistance or encouragement Gives substantial assistance and breaches duty of care on own Additional Causes Substantial factors test- where several events concur to bring about an injury and any of one factor alone would have been sufficient to cause the injury -- it is sufficient if defendant's conduct was a "substantial factor" in causing the injury Jury is the on who determines the question of causation Alternative causes approach If plaintiff can show that one of the many defendant's was at fault but only one could have caused the injury, the burden shifts to each defendant to show that the other caused the harm (policy reason - defendants are normally in a better position to offer evidence) Loss of Chance Doctrine Damages could be awarded for loss of a chance of recovery When the plaintiff has been deprived of a greater than 50% chance of recovery, case is "substantially certain" as to whether the defendant was negligent, and the case can go to jury When the defendant's actions cause loss of chance that was already less than 50%, the situation is more difficult Cases Proximate Cause Policy - defendant should no automatically be liable for all the consequences, no matter how improbably or far reaching of his act Usually liable for foreseeable consequences In addition to showing cause in fact, the plaintiff must show the defendant was the proximate cause of the injuries Restatement 3d: uses the phrase "scope of responsibility" Actor "is not liable for harm different from the harms whose risk made the actor's conduct tortious
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actor's conduct tortious Plaintiff must show that he was a foreseeable victim who sustained a foreseeable type of harm Foreseeable victim - defendant only owes a duty of care to foreseeable plaintiff's Foreseeable type of harm Most courts hold defendants liable only for those consequences of defendant's negligence that were reasonably foreseeable at the time of the action One measured by prediction at the time of the careless event Direct cause cases- were harm is caused instantaneously the harm is almost always foreseeable, uninterrupted chain of events Foreseeably harmful result - defendant liable if particular harmful result was at all foreseeable from the defendant's negligent conduct Not foreseeable - defendant not liable if plaintiff injured in an entirely different and totally unforeseeable type of harm result Issue when time gets involved The precise details don't need to be foreseeable--just that an injury can come from your action Intervening or Superseding Causes Intervening and superseding causes are defenses to proximate cause Intervening force that occurs after the defendant's negligence which contributes that that negligence in producing plaintiff's injury Restatement 2d 439 The original negligent actor is not relieved of liability by the subsequent action of the other, it is that the subsequent acts may have been foreseen Intervening Cause Something gets in between the action and the injury Types of cases Intervening medical mal practice does not get rid of foreseeability Intervening negligent rescue - foreseeable that a rescuer could make things worse Intervening reaction/protection forces Subsequent disease or accident In most other scenarios you just have to look at the breach and see why you classify it as negligence anyway Superseding causes An intervening cause that is strong enough to prevent the defendant's negligence from being the proximate cause of the plaintiff's injury Test: To be a superseding cause Injury must not have been foreseeable OR Intervening cause must not have been foreseeable Foreseeability Rule Where the type of intervening negligent act is at all foreseeable, even if the specific intervening act is not the original tortfeasor held liable for the plaintiff's injuries Indirect cause Foreseeable result cause by foreseeable intervening harm = defendant is liable Foreseeable results caused by unforeseeable intervening force = defendant is usually liable Unforeseeable results caused by foreseeable intervening harm = defendant is not liable Unforeseeable results caused by unforeseeable intervening forces = defendant is not liable General Activities Usually criminal acts by a third party is superseding cause
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Usually criminal acts by a third party is superseding cause Acts of god are only superseding if not foreseeable Liable if doctor aggravates injury, unless intentional Liable for injuries of rescuers

Damage Eggshell Skull Principle Once a defendant has committed all the other elements of a tort, that defendant is responsible for all damage suffered by the plaintiff even if they are great in scope You pay for all damages You take your plaintiff as you find your plaintiff Not limited to the tort of negligence - Contributory Negligence Only exists in four states North Carolina, Alabama, Maryland, Virginia, and DC Burden of proof is on the defendant If a plaintiff is found to be purely contributory negligent, they are not able to recover (totally barred from recovery) Same standards discussed earlier to look at the plaintiff Last Clear Chance Doctrine Plaintiff's contributory negligence if it can be shown that the defendant had the last opportunity to prevent the accident existence of the opportunity wipe out the plaintiff's contributory negligence Mostly not used in comparative negligenceBUT some that do plaintiff can recover if immediately preceding the injury Restatement 2 479: Helpless Victim The plaintiff cannot avoid harm AND The defendant is negligent in failing to use due care when he knew of the danger or should have known of plaintiff's danger Restatement 2d 480: Inattentive plaintiff Plaintiff can recover if: Defendant knows of the plaintiff situation AND Realizes the plaintiff is unlikely to discover danger in time to react AND is negligent in failing to avoid harm - Comparative Negligence Defendant can show plaintiff did not exercise proper care for his own safety Proper care- reasonable care under the circumstances The jury is asked to weight/compare the negligence of the two parties and then assign each a number.then the plaintiff's damages will be reduced based on that number No real legal guidelines that tell the jury how to assign the fault numbers Types of Comparative Negligence Pure Comparative Negligence NY, FL, LA, RI, WA Plaintiff less than 50% at fault AK, CO, KA, ME, UT Plaintiff less than or equal to 50% WI, IA, CT, MA, MN, NV, NH, NJ, OK, OR, PA,TX, WY, VT - Assumption of Risk A defendant is not liable for negligent actions if the plaintiff expressly or implicitly assumes the risk and this assumption is voluntary Assumption of risk does not extend to all injuries from activity - only injuries consented to (foreseeable, reasonable, know-able) Elements needed Knowledge on the part of the injured party on the condition inconsistent with the safety Appreciation by the injured party of the danger in the condition Deliberate and voluntary choice on the part of the party to expose himself to the danger in such a matter in such a matter as to register assent to the continuance of the dangerous condition Two types
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 Two types Express Exceptions Defendant brings about harm intentionally or by acting reckless or grossly negligent: Signed under duress (bargaining power of the defendant is grossly larger than the plaintiff) Overriding public interest Completely defense Contract - valid when they're signed knowingly and willing; not okay with public interest (can't say you assumed risk); invalid and gross negligence cases Implied Two Requirements Defendant must show plaintiff Know of the risk in question Voluntarily assented to bear that risk Sorta on its way out because of comparative negligence Three Types Primary - occurs when the plaintiff voluntary assumes known risk in the situation and the defendant had no duty of care Characterized by the plaintiff voluntary assuming known risk created by the defendant's negligence Where the plaintiff unreasonable accepts a known threat of danger in pursuing a particular course of action Look at circumstances and if the plaintiff had known of risk and consented to it - Group Liability Joint and several liability- if more than one person is the proximate cause of the plaintiff's harm, the harm is indivisible, under the traditional approach each defendant is liable for the entire harm Trend towards elimination 16 states now have pure several liability - defendant is only liable for his share of responsibility Plaintiff is only entitled to a single satisfaction claim Market share theory (often applied in product liability cases) If plaintiff cannot prove which of three or more persons caused his injury, but can show that all produced a defective product, the court will require each of the defendant's to pay that percentage of the plaintiff's injuries which the defendant's sales bore to the total market sales of the that type of product at the time of the injury - Immunity Defense given to a class of people based on their relationship with the plaintiff Types Husband/wife (largely abolished) - GA and LA (still allow it) Special caution b/c its hard to prove IIED unless the conduct is very egregious Parent child Raising a child involves responsibilities that dont exist between the child and a stranger Restatement 2d 895 comment g Recognizes parental immunity with respect to certain causes of action Charitable immunity - by state Totally or partially abolished in all states because of insurance Contrary for donors to pay for tort actions Government Immunity Always check relevant statutes first Sovereign immunity protects anyone from suing the government No liability under the government's exercise of a discretionary function AK have not abolished a doctrine of sovereign immunity Federal employee is immunized from state tort liability No intentional torts for the fed. government Privilege - conduct under normal circumstances, would make defendant liable. However, for a particular reason, he is not liable in this instance Public necessity, private necessity, act as a rescuer
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 Public necessity, private necessity, act as a rescuer Public Duty Rule Gov't owes a duty of protection to the public not to a particular person or classes Restatement 2d 315 Special duty - to establish liability under the public duty rule you have to establish a special relationship - Strict Liability Vicarious liability- non-delegable duty: plaintiff can hire someone else to do the work, but cannot delegate the duty of a landowner to the employee Basic Test Liability regardless of the the defendant's intent and if they were negligent There must be a causal link between plaintiff and defendant Is the subject matter something that uses strict liability? Was the injury characteristic of foreseeable harm? Was the plaintiff abnormally sensitive? No strict liability if injury would not have occurred but for the abnormally sensitive disposition of the plaintiff Was this the type of risk that is associate with the activity/animal being danger? Remember: narrower scope of liability/foreseeability than negligence Was the activity the proximate cause of the injury? Other defenses? Assumption of risk Comparative negligence Superseding cause DO NO NEED TO SHOW PROOF OF DEFENDANT'S FAULT -- ITS ASSUMED Animals Contributory negligence is no bar to recovery Was the animal abnormally dangerous? (restatement 2d 23) Domestic animal Owner knows or has reason to know of dangerous propensities Dangerous propensities are abnormal for a breed Was the animal wild? Generally not considered domesticated Likely to cause harm if not restrained Liable for foreseeable harm Liable even if they use the utmost care Did the animal trespass? Owner of livestock liable for property damage (not cats/dogs) Liable for damage that is characteristic of animal NOT liable if goes onto land while being led on public highway Owner not liable for trespass if enter land to remove animal Activities Restatement 2d 520 (says and but kinda sorta means or) An activity is abnormally dangerous if: High degree of risk to person, land or chattel High likelihood that harm will result Inability to eliminate risk Extent to which activity is common Appropriateness of activity to location Value of activity to community Restatement 3d (need both factors) Factors to consider for abnormally dangerous activities Activity creates foreseeable and highly significant risk of foreseeably harm even if reasonable care is exercised Activity is not of common usage If an act of god creates the injury than there can be no recovery Workers Compensation
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 Workers Compensation Compensate employees for on the job injuries without regard to fault Employee give up right to sue in tort no reocvery for pan and suffering Restatement 2d 524 Plaintiff's abnormally sensitive activity- defendant will not be liable for his abnormally dangerous activities if they would not have occurred except for the fact that plaintiff conducts an abnormally sensitive activity Restatement 3 Scope of strict liability Limited to Physical harms that are characteristics of the risk posed by an abnormally dangerous activity Strict Liability for Products Products can be consumer products in the home or industrial products used in the workplace If hurt, a plaintiff doesn't have to litigate on a strict liability theory Test Need the plaintiff to be foreseeable Did the defendant make or sell the product? Did it cause physical harm to users, bystanders, or property? If no, then look to contract claims/misrepresentation Was the product defective? Manufacturing defect Design defect Inadequate/failure to warn Did defendant breach duty of care Manufacturing defect Strictly liable if deviate from design standard Design defect Liable if foreseeable risk of harm posed by the product could have been reduce or avoided if manufacturer adopted a reasonable alternative design Failure to warn Liable if arm posed by product could have been reduce by providing reasonable instructions Did the defect cause the injury? Was the defect present when in the hands of the manufacturer/seller? Breach of Warranty Traditional remedy by which a buy of goods sought to recover from the seller of goods that proved to be defective Express warranties Seller may expressly represent her goods to have certain qualities if they don't scan sue for breach of warrant UCC gives a number of ways express warranty may arise Statement of fact or promise about the goods A description of the goods Use of a sample or model Strict liability a defendant's liability for breach of warranty is a kind of strict liability as long as the plaintiff can show that the representation was not in fact true, it does not matter that the defendant reasonably believed it to be true, or even that the defendant could not possibly have known that it was untrue Implied Warranties Existence of warranty s to the quality of goods can also be implied from the fact that the seller has offered the goods for sale Warranty of merchantability - UCC imposes several implied warranties as a matter of the law; merchantability provides that "a warranty that goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind" Goods "must be fit for the ordinary purpose for which such goods are used"
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 Goods "must be fit for the ordinary purpose for which such goods are used" Seller must be in business and must regularly sell the kinds of goods in question Fitness for a particular purpose - buyer relies on seller's judgment Rejection of privity requirement for implied warranties Defenses Manufacturing Defect - very few defenses possible Design defect Unavoidably unsafe (drugs) State of the art defense Obvious danger (less successful) Unforeseeable misuse No defect at all because never intended for that use Not proximate cause (misuse is superseding cause) Comparative fault Failure to warn Learned intermediary Unknowable risk Assumption of the risk If the plaintiff knows of products defect and chooses to use it, assumes the risk and comparative negligence will be applies Highly risky behavior DE, NC, MA no strict liability approach Possible theories for recovery Contract claims Breach of warranty (express or implied) Easier to get consequential damages and damages for loss of product Misrepresentation Public misrepresentation (innocent negligent) of a material fact that cases physical harm to the consumer who relied on the misrepresentation Negligence Bigger hurdle: did the defendant owe a duty to the plaintiff Usually retailers are not liable for negligence; nor a duty to inspect Strict Liability More common on modern cases No economic losses recoverable; cannot recover for loss of product Better to use over warranty if warranty included a disclaimer of recovery Restatements Restatement 2d 402A Seller of a product that is defective and thus unreasonably dangerous to user or his property is liable for physical harm and harm caused to property if: Seller is a merchant Product is expected to go to consumer without substantial changes Applies even if manufacturer uses all possible care and no privity among parties and to foreseeable bystanders Restatement 2d 402B Restatement 3d REPLACES 402A ABOVE!!!!!!! 1 Liability of Commercial Seller or Distributor One engaged in the business of selling or distributing products who sell or distributes a defective product is liable for harm to persons or property caused by defect 2 Categories of Product Defect A product is defective when, at the time of sale/distribution, it contains a: Manufacturing defect: product departs from its intended design even though all possible care was used Design defect- foreseeable risk of harm posed could have been reduced or avoided by adoption of a reasonable alternative and the omission of the alternative design renders the product not reasonably save
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 9 Major differences 402A defined "unreasonably dangerous" in terms of consumer expectations Implication - if consumer used product that they knew was dangerous, it would not be "in a defective condition unreasonably dangerous" and thus no recovery R3d allows plaintiff to recover even if they had expectations that the product was dangerous R3d has different standards for each type of defect Manufacturing Defect Test Was there harm to property, bystander, or consumer? Was the product defective? Specific product deviates from the design standard Did defect cause injury? THEN: STRICT LIABILITY Must prove defect at the time product left the seller Need circumstantial evidence supporting inference of defect Policy for Strict Liability Instrumentality was in control of defendant Defendant could have easily fixed product Unlike warning or design defects, it is not unduly burdensome to prevent a manufacturing defect Unavoidably unsafe products - no strict liability - its benefits outweight the danger i.e. prescription drugs, vaccines Food products Most courts apply a consumer protection test food only defective if it contains an ingredient that a reasonable consumer would not expect it to contain Design Defects Test As there harm to the consumer/user, bystander, or property? Was there a design defect? Restatement 3d 2b: a foreseeable harm could have been reduced by using an alternative design that is reasonable, could have reduced risk, and failing to sue this alternative design made the product not reasonably safe Risk-utility Analysis Utility of product to user and public Likelihood of causing injury Availability of a substitute that meets safety needs Cost of using alternative User's ability to avoid danger User's anticipated awareness of danger Feasibility of spreading loss through implementing new design Did defect cause harm? If so, then liable Defenses Unavoidably unsafe: prescription drugs A Prima facie case requires: Actual existence of safer alternative at time of production Injury by defect Policy More of a negligence standard because: Want to encourage production/creation of new products (so dont want to "chill" innovation through strict liability approach)
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alternative design renders the product not reasonably save Inadequate warning: foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings and the omission renders it not reasonably safe

innovation through strict liability approach) More burdensome for a defendant to change design Desire to give deference to a defendant in deciding best design Warning Defects Duty to Warn Extra obligation on manufacturer Warnings can't save instances of manufacturing or design defects from liability If product is properly designed an manufactured, defendant must give warning of nonobvious risks of personal injury from using the product Risk Utility Analysis Liability for failure to warn usually based on a negligence like risk-utility analysis A product will be deemed defective on account of "inadequate warnings or instructions" when the foreseeable risk of harm imposed by the product could have been reduced or avoided by the provision of reasonable instructions of warnings...and the omission of the instructions or warning renders the product not reasonably saved Assessing adequacy Warnings may suffer from both procedural and substantive inadequacy Procedural - conspicuous Substantive - inadequate if it fails to provide the consumer with info necessary to appropriately asses the risk Unknown or unknowable dangers means there is no duty t warn Obvious danger If the danger is obvious to most people, this will be a factor reducing the defendant's obligation to warn (but may find duty if warning could easily be given and substantial minority of people may not have known of the danger Presumption user will read and heed Test Was there injury to bystander, user or property? Was there a warning defect: General Harm posed by product could have been reduced by reasonable instructions or warnings Restatement 3d 10: duty to warn if new dangers are discovered after the product is manufactured Drugs Fail to warn medical provider if medical provider is in a position to reduce harm OR Fai to warn patient if patient could reduce harm with warning OR Inconspicuous labeling Did lack of warning cause injury? With proper warning, the consumer would have read instructions and acted differently Then liable Defenses Obvious harm The danger was unknowable Learned intermediary doctrine Manufacturers obligation to warn extends only to the doctor whose prescribes the drugs Show Four Things The defendant was a merchant A casual seller is not a merchant A service provider may make certain products available, but they are not a merchant of the collateral products Any merchant in the distribution claim is liable - privity of contract is not required for strict liability Prove the product was defective Substitutes for the breach element n the law of negligence
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 Substitutes for the breach element n the law of negligence Three types of product defect Manufacturing defect - it departs from its intended design; its different from all the others that were made in a way that makes it dangerous; Design defect - exists when there is another way the product could be built, an alternative design Design has to be: Safer Economical (no more expensive, or only slightly more expensive than the marketed version Practical Information defect Residual risks that can't be eliminated by a physical redesign that a consumer would not be aware of and it lacks warnings about those risks Prove that the product was not altered Element is assumed if the product traveled in ordinary channels of distribution Plaintiff must be making a foreseeable use of the product at the time of injury Misusing is okay as long the misuse is a foreseeable misuse - Economic Loss Basic Principles Is this pure economic loss? No recovery for pure economic loss under tort law Plaintiff was a direct victim but suffered only economic loss Plaintiff was a third party and due to defendant's act suffered only economic loss Can recover for property damage Is this a products liability case? Generally, no recovery for economic loss with products liability; perhaps if "accident like situation" occurs Is this a non-products case? Can generally recover economic loss (consequential damages) if plaintiffs can establish elements of an independent tort as well: Show there was a duty (NB: foreseeability is NOT a duty) Breach of duty Breach loss Proof of loss Can recover economic losses as consequential damages if the plaintiff also suffered property damage or physical damage Can recover economic losses if Breach of fiduciary duty Fraud Misrepresentation (negligent, innocent, fraudulent) NOT negligent To recovery for economic loss, you must establish foreseeability to but do not need to establish a duty. Non Stranger Plaintiff and defendant are in a contractual relationship or at least indirectly related through a market transaction Non strangers are able to allocate the risks of disappointed economic expectations Outside of products context- precise boundaries of the rule are still evolving Can't show a negligent breach of contract must also show some other independent tort Strangers Those in which the plaintiff and defendant are not in contractual privity and are not even indirectly connected to the same market transaction Usually ground in the fear of unlimited and unpredictable liability Most common type is product liability Economic loss rule - applied to bar recovery in tort if the product defect causes only economic harm as only damage t the product itself
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as only damage t the product itself Breach of Fiduciary Duty Link to fraud - both involve some sort of duty to act loyally, and there is some deceit involve Easier to recover for breach of fiduciary duty if it can be linked to a tort Duty of loyalty, confidence (secrecy), communication and competence A fiduciary must consider his or her partners welfare and refrain from acting for purely private gain Restatement 3d of Agency Agency and Fiduciary Relationships Agency relationship exists when A person (principle) manifests assent to another person (the agent) that the other person will act on the principle's behalf and be subject to the principles control The agent consents to act Misrepresentation Restatement 2d 311 If a defendant intentionally or negligently gives false information If a person suffers physical harm as a result of reasonably relying on this info then defendant is liable for tort damages Fraudulent Misrepresentation Restatement 2d 525 Fraudulent Misrepresentation (Elements) Misrepresentation of fact, opinion, intention or law is made: Fact: can come through words or through actions (turning back odometer) Opinion: fraudulent if Falsifiable; actually not what speaker believes or does not have knowledge to give opinion at all Usually opinion is important when discrepancy in knowledge between parties Intention: reference to the future To be fraudulent, must have been no intention to perform promise or different intention Very similar to contract breach Misrepresentation is made fraudulently Knows the matter is how he represents it No confidence in the accuracy of representation Knows there is no basis for representation Purpose of inducing another to act or refrain from acting Applies to third parties if reasonable certainty that they could also be induced Either intent to induce or reasonable that plaintiff's class will be likely tot rely Party justifiably relies on it and is injured Information must be "material" A reasonable man would rely on it OR Person knows of idiosyncratic behavior that makes plaintiff rely on it HOWEVER if information is "obviously false" then not justifiable Unless, of course, not obvious to specific plaintiff Some jurisdictions apply comparative negligence Prima Facie Case Misrepresentation made by the defendant in business or profession capacity Breach of duty towards particular plaintiff Causation Justifiable reliance by the plaintiff on the misrepresentation damages Why push for fraud? Rescind contract (get out of contract provisions for remedies) Consequential damages: return to status quo ante Possibility of Punitive damages Reputational stake for other party Restatement 2d 552: Negligent Misrepresentation and Economic Loss
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 Restatement 2d 552: Negligent Misrepresentation and Economic Loss Defendant must be providing information in business, professional, employment setting OR have pecuniary interest Defendant supplies false information for the guidance of others in their business Plaintiff justifiably relies on this information THEN plaintiff can recover if: Defendant did not exercise reasonable care OR competence in obtaining or communicating information Plaintiff suffered pecuniary losses due to reliance Restatement 2d 252 Misrepresentation made by defendant Scienter plaintiff must prove defendant made the presentation knowing it to be false, or alternatively, that it was made with reckless disregard as to its truth or fallacy Intent - plaintiff can recovery if can show that a member of a class which defendant had reason to know would be induced to rely Causation (i.e. actual reliance on the misrepresentation) Justifiable reliance by the plaintiff on the misrepresentation (on fact - almost always justifiable, on opinion- not so much) Damages Liability confined to commercial transactions Duty owed only to particular plaintiff who reliance contemplated Personal Injury Rule for Fraudulent Misrepresentation If person get physically injured due to a fraudulent misrepresentation, party is categorically liable if there was a reliance. DOES NOT NEED TO BE JUSTIFIABLE! Rule for negligent misrepresentation If person gets physically injured due to negligent misrepresentation, party is liable if there was reasonable reliance STILL NEED TO SHOW CAUSATION

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