Intent (1) Desire or purpose to accomplish the essential element of the tort in question, or acted w/ knowledge to a substantial certainty

that the essential element of the tort would result. a. Intent can exist despite s ability to accomplish the essential element. Talmage v. Smith (shed-ty situation) (2) Insane not exempt from intent (most jurisdictions). McGuire v. Almy (crazy lady hits nurse) (3) Intent refers to the state of mind w/ which the act is performed or omitted (4) Mistaken act: A may be held liable for unintended & good-faith actions (5) Motive doesnt matter (6) Forced to act still intent Transferred intent between old trespass torts: (1) Same person, different tort (2) Same tort, different person (3) Different person, different tort The 7 Intentional Torts (*=Old Trespass Torts) has the burden of proof to establish each element by a preponderance of the evidence (>50%) Types of Damages (1) Compensatory: Make the whole; back to how was before a. General: Pain & suffering (physical & emotional) b. Special: Out-of-pocket loss (2) Punitive: Applied to punish . Serves as a deterrent (calculated by considering the wealth of the ) Battery* (1) An act (volitional assertion of will manifested in the external world no seizures) a. does not have to actually touch (2) With the intent to cause a contact w/ a person which is harmful or offensive, or w/ the intent to cause the imminent apprehension of such contact a. Intent refers to contact (not harmful or offensive aspect of it) b. Known sensitivities can allow for intent when a is abnormally sensitive; the s act can be H&O despite the fact that it is not H&O to a Rx person

Things Intimately connected to ones person. See Restatement (third) of Torts, 18, & Fisher v. Carrousel Motor Hotel, Inc. (3) Causing a. Sine Qua Non; but for test (4) A harmful or offensive contact w/ the person. a. Harmful: Injures, disfigures, or impairs the body b. Offensive: Something that would cause a Rx person to be offended c. are liable for a contact that is an affront to ones personal dignity d. Can contact w/ unconscious be harmful or offensive? Yes, it is still an affront to ones personal dignity. e. Take the as you find him; eggshell rule c. Assault* (1) An [overt] act a. Words in context may constitute an overt act b. Actions satisfy element, even though words may not correspond (2) Intent to cause a contact w/ a person which is harmful or offensive or w/ the intent to cause the imminent apprehension of such contact a. Malice is not reqd (3) Causing a. Directly or indirectly (4) A Rx, imminent apprehension of such contact a. Apprehension: Rx belief/awareness that harmful or offensive contact will follow unless one takes steps to evade or defend. Restatement. b. A threat of future harm is not assault c. Rx grief is qualified as apprehension d. Fear not reqd e. Ability to make harmful or offensive contact not reqd, but necessary that Rx would believe that can cause such contact. Western Union Telegraph Co. v. Hill (let me love & pet you) False Imprisonment* (1) An act a. Words can constitute an act (2) With the intent to confine within boundaries a. Wrong person by mistake? Still FI (3) Causing (4) The confinement of within boundaries

a. Three types of confinement: i. Physical barrier/boundaries. Big Town Nursing Home, Inc. v. Newman ii. Force or threat of force against a person. iii. Force or threat of force against property b. Moral restraint will not suffice. Whittaker v. Sandford c. If doesnt know of another exit, it is still confinement d. If an escape route is Rx & available to , then must take it (No FI) (5) 's awareness of the confinement [or 's harm from such confinement. Restatement] a. only needs to be aware of the confinement at some point when confined Remedies (False Imprisonment) (1) If the only means of escape could cause physical danger to , & he could remain imprisoned w/o any risk of harm, he may not recover for any injuries suffered in making the escape (unreasonable escape attempt). P. 43, Note 7 (2) Actual damages need not be proved Intentional Infliction of Emotional Distress Courts hesitantly award damages for IIED b/c they want to promote a thick skinned society. Significant burden of proof reqd for a successful claim. (1) An extreme & outrageous act a. Not subjective w/ the respect to the person b. Exceeds all bounds that could be tolerated by society; it must shock the conscience. Slocum v. Food Fair Stores of Florida. c. s knowledge of s sensitivities are considered (2) Intent a. Reckless (acting w/ deliberate disregard of a high degree of probability that severe emotional distress will follow). Restatement (3) Causing (4) Severe emotional distress a. Traditionally: Physical consequences of SED reqd b. Modernly: Mind-body relationship; slight physical consequences acceptable as evidence of SED c. Exacerbation of an existing condition can be used as evidence, but other variables may weaken correlation. Harris v. Jones

d.

One is able to make a claim for IIED by witnessing an act done to bystanders. The act does not need to be directed towards the , but he must be present at the time of the act being committed. Restatement 46(2) allows recovery if the P knew of the bystanders presence & either directed at a member of bystanders immediate family or bystander suffers bodily harm as a result of SED. There have been exceptions to the presence requirement.

Trespass to Land* (1) An act a. physical invasion of property reqd (2) Intent to enter or remain on land a. No excuse for mistaken trespasser (3) Causing (4) The entry or remaining on land in which has a possessory interest by , a 3rd person or a thing a. Actual damages are not reqd b. Airspace above property: Only if there is entry into immediate reaches of the air space next to the land & interferes substantially w/ the others use & enjoyment of the land. Restatement of Torts 159. c. Socially useful or beneficial conduct w/o permission is actionable i. nominal damages usually awarded d. Privileges of entry may be limited not only by time & space, but also by purpose. Failure to remove a thing once privileges expire constitutes trespass. Rogers v. Board of Road Commissioners for Kent County e. Vibration & noise do not allow for a cause of action; dust & particles only actionable if they accumulate Damages in Trespass to Land (1) Emotional distress can be awarded (reqs deliberate acts of trespass & aggravation) (2) Damages cause by need not be foreseeable to be compensable. (3) Nominal damages are awarded in instances where there is a trespass to land, but no compensatory damages. (4) Punitive damages when there are no actual or compensatory damages. Jacque v. Steenberg Homes, Inc. Trespass to Chattels* (1) An act (2) With the intent to affect a chattel

(3) Causing (4) Damages to a chattel in which P has a possessory interest or loss of its use for a substantial time or injury to P or a person or thing in which P has a legally protected interest. a. Trespass to chattel doesnt require as much interference w/ property as conversion. Conversion You Break it, You Bought it 's good faith, under rare circumstances, may be a defense to an action for conversion. (1) An act a. Can also deal w/ not returning an item after a given time (2) With the intent to exercise dominion or control over a chattel a. Damaging or destroying can constitute control b. Bona-fide purchasers can still be sued for conversion i. Stolen: Title never passed to BFP ii. Fraudulently sold: Title is voidable; cant go after good faith purchaser, but can recover from thief (3) Causing a. Proximate cause (4) An interference w/ the right of the to control the chattel (5) Interference is so serious that the may be justly reqd to pay the the full value of the chattel. a. Factors considered in determining the seriousness of interference may include the following: i. 's exercise of dominion & control for a substantial amount of time ii. Substantial harm done to the chattel 1. There is no bright line to determine how much interference is enough to warrant conversion. iii. Substantial inconvenience & expense caused to the 1. Reqs to travel to get the chattel back iv. 's intent to assert a right that knows is inconsistent w/ the 's right of control 1. Salesmen throw s keys back & forth in a game of keep-away. Court ruled for conversion b. Neither good faith nor mistake are defenses to conversion Remedies for Conversion (1) Highest market value between the time of conversion & the time Rx for replacement. Minority: from time of conversion to time of trial (2) Loss of use: Rental value

(3) Punitive damages (reqs malice)

Privileges Tort law is human. Courts value human life>property. Two types of defenses (1) Substantive: Defenses to the allegations (all of the prima facie elements are not met) (2) Affirmative: Not saying no to the prima facie elements, but saying nah nah nah (you may have proven elements, but you lose anyways) Consent (1) Types of consent: a. Express consent: Waiver of liability b. Implied consent i. Conduct showing desire to avail oneself to an act. OBrien v. Cunnard S.S. Co. ii. Custom can establish implied consent (2) Proving consent a. Use the Rx person test when determining if consent is applicable (regardless of s state of mind) i. Mentally retarded individuals/children: Able to consent if they are capable. Three factors: 1. Age 2. Intelligence 3. Experience ii. Look at totality of the circumstances iii. Consent is limited to the Rx boundaries relating to the nature of the circumstances in which they occur. Huckbart v. Cincinnati Bengals, Inc. iv. Inaction/silence constitutes consent where Rx person would speak if he objected to intentional interference v. Protection of is limited to the scope of s consent vi. Consent assumed if joins something & is aware of their practices (church example) b. If has subjectively agreed for there to be consent i. If consent is gained fraudulently or coercively, it is an illegitimate defense. (3) Limitation of consent a. Majority: Consent does not apply in fights of anger. Minority: treat it like any other consent situation. b. Consent is invalid when & engage in illegal conduct where the law is designed to protect c. A doctor who obtains a patients consent for an operation may not perform another operation w/o consent Self-defense

(1)

Any person may use Rx force to defend him/herself against an immediate threatened battery on the part of another. a. Majority view on retreat: Stand your ground and use deadly force southern & western states. b. Minority view on retreat: Retreat to the wall northern & eastern states. Restatement (2) Retaliation not allowed (3) Limited to Rx force a. Age, size, gender, and relative strength are considerations b. must show that force was Rx (4) Provocation does not justify self-defense (5) Mistaken for the need of self-defense? Valid defense if mistake is Rx (6) Self-defense does not apply when intentionally causes contact or uses force on a 3rd party while in defense of a threatened battery, or if negligently harms a 3rd party Defense of others (1) One may use force in defense of others to the extent one can defend themselves a. Same rules as self-defense apply, except for mistake i. Majority: No defense, even if it is an honest mistake. Stand in the shoes. Restatement ii. Minority (trend): One can use force on the basis that it is Rx to protect others. Defense of property (1) Generally, deadly force is not allowed for the protection of personal property a. Deadly force depends on day or night (worse things happen at night, so deadly force may be justified) b. Some jurisdictions allow for deadly force if gives clear notice of the danger (2) If a peaceful entry is made, a request to leave must be made before any force is applied, unless a request would be unRx and/or there is no time (3) No privilege to use force intended or likely to cause death or serious harm against another whom the possessor sees about to enter his premises or meddle w/ his chattel, unless the intrusion threatens death or serious bodily harm to the occupiers or users of the premises. Restatement 79. Katko v. Briney (Iowa 1971) (4) No excuse for mistake

Recovery of property (1) Rx force may be used if the pursuit is fresh after the chattel has been converted. a. Less fresh? Less understanding for Rx use of force b. No serious harm/death: Human life>property (2) Shopkeepers privilege: Rx belief of shoplifting allows shopkeeper to detain a suspect for a Rx amount of time. Bonkowski v. Arlans Department Store (3) True possessor may not use force to reenter real property & forcibly remove tenant a. Courts try to civilize the problem by involving litigation as a substitute for self-help Necessity

f.

Both parties drinking? Contributory Negligence i. Last clear chance doctrine: Hobbled donkey gets hit by a horse and buggy that had the last clear chance to avoid collision

(1)

Public necessity: A person has a complete privilege to interfere w/ property rights if she reasonably believes it is necessary to avert a public disaster a. Applies to public officials and private people b. Reasonability (given the circumstances) is key c. If there is no insurance, then tort claims are likely not to be brought i. Subrogation clauses pay us back if damages are awarded d. Rx mistakes are OK (2) Private Necessity: Limited privilege that a person may interfere w/ property rights if one has a Rx belief that it is necessary to prevent harm to property or a person, but must compensate for any damages a. Supersedes an owners right to prevent from trespassing b. Pure acts of god prevent s from recovering Affirmative Defenses to Negligence Contributory Negligence (Outdated Approach) a. CN is the affirmative defense; cn is a description of conduct or failure to act i. cn can be used in comparative negligence b. Small minority b/c it is too harsh on s c. Contributory Negligence used to be a nuclear defense; it would destroy Ps case regardless of level & authority. Things changed after the 1970s d. May reduce or negate damages e. Doctrinal swiss cheese exceptions i. It bent a lot before it broke

Comparative Negligence (1) cn may be used by judges to explain Comparative Negligence (2) Key part is getting to % of fault (3) 3 Major approaches a. Pure 1/3 Jurisdictional Split CA is in this category, so is FL i. Whatever % of fault, subtract that much from award ii. $5,000,000 award; juror must give percentage 1. P 95% at fault 2. D 5% at fault 3. P gets 5% ($250,000) iii. What if was injured ($100,000)? 1. $250,000 less $95,000 offset a. Offset helps insurance companies b. Less than 1/3 Jurisdictional Split i. If 50/50, loses 1. Jury wont be instructed about the consequences c. Not greater than 1/3 Jurisdictional Split i. Policy considerations: If is more at fault than the , we dont want to recover ii. If 50/50, can recover d. Mathematician: Highly unlikely to be 50/50 i. Real world: Pretty much 50/50 is a common assessment e. Joint & Several liability may lead to adding Ds with low fault (city) (4) Hypo: 1: 60%, 2: 10%, :30%, Total of $100,000 a. Pure: recovers $70,000 b. Less Than/Not Greater than: No recovery b/c is greater than least responsible (many jurisdictions) i. Trend: Add both s % together (5) Its just not fair to bar s recovery Assumption of Risk (1) No assumption of risk in intentional tort claims (2) Traditionally a nuclear explosion for s claim (3) Express

a. Like a contract; one will not sue the other party b/c of an assumption of risk b. Particularly in cases involving personal injury, courts are strict about construing the agreement against the drafter c. Still nuclear defense to s claim (4) Implied a. There must be an already extant dangerous situation that one is focused on b. Comparative assumption of risk i. Subsumed within comparative negligence c. Two requirements i. Subjective appreciation of risk 1. Individual assessment ii. Voluntary encountering of risk d. Smoking and children (tobacco litigation) i. How much risk do they appreciate? ii. Did the advertising negate the subjective appreciate iii. If they pick up a cigarette and smoke, are they doing so b/c they are addictive

o
Negligence

Negligence

Negligence is the omission to do something which a Rx man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do or something which a prudent & Rx man would not do. Blyth v. Birmingham Waterworks Co. [N]egligence=Elements. (1) Duty/Breach approached together unless public policy is involved a. Determining [n]egligence i. Omission of such precautions as a man of ordinary care & prudence, under like conditions, would observe ii. There can be [n]egligence w/o [N]egligence (no causation or no injury) iii. s special knowledge make him more likely to be found negligent iv. Factors to consider when determining negligence: 1. Character & location of premises 2. Purpose for which they are used 3. Probability of injury therefrom 4. Precautions necessary to prevent such injury 5. Relations such precautions bear to the beneficial use of the premises (2) Duty Question of law a. Fx Plaintiff (Cardozo zone of danger view): must be within the class of person who Fx will be injured as a result of s negligence b. Fx is on a spectrum; there is nothing that we can think of that isnt foreseeable. c. Public policy: No duty of due care w/ flagrant trespassers d. Ones best judgment rule is not used e. Rx, prudent person standard (TARP) i. >Subjective >Chance of excusing behavior. It is too difficult to make individualized assertions. ii. Intelligence 1. Average intelligence: Being below-average is no excuse). Vaughan (hay rick) 2. Sometimes high intelligence is viewed by the court as making someone liable for contributory negligence. Restatement 29(m) iii. Knowledge 1. Avg. knowledge not reqd 2. Minimum knowledge is reqd

iv.

v.

vi.

vii.

a. Items of universal use: Individual ignorance of common knowledge doesnt excuse from negligence 3. Forgetfulness is no excuse 4. is responsible for inquiry into things he does not know if it is widely known in the community (purple light example) 5. If >50% of community doesnt know about it, then is not reqd to have knowledge 6. Superior knowledge? Liable for negligence even if most others dont know Custom (some evidence; not dispositive) 1. Custom reflects the experience and knowledge of many 2. Industry custom: Fairly well defined & in the same calling or business so that the actor may be charged w/ knowledge of it or negligent ignorance. Trimarro 3. Trier of fact decides the Rx of a person adhering to a custom 4. When proof of an accepted practice is accompanied by evidence that the conformed to it, may have established due care 5. Rx of custom is considered along w/ Rx of behavior in adherence to custom Emergency 1. Rx person in a similar emergency situation. Cordas (Cab) 2. If causes emergency, then look to normal Rx person test (brakes go out in your car?) 3. Considers the Rx persons nature desire for self-preservation Physical Disability 1. Rx prudent, similarly disabled person. Blind people are less likely to be contributorily negligent. Roberts 2. Exceptional physical abilities yield a higher duty of care (peripheral vision) Children 1. Involves (1) age, (2) experience, & (3) intelligence 2. Almost subjective, but still considered to be an objective standard

3. Rx child standard not applicable when child is taking part in inherently dangerous activities (snow mobile) a. Difficult to predict when court will consider activity inherently dangerous 4. Policy goal: To discourage children from taking part in inherently dangerous activities (arrogant; how many children know about the laws?) viii. Old age 1. Measured by infirmities rather than age ix. Mental deficiencies 1. Not a factor in exonerating one from liability 2. Caretakers should look after the insane people under their watch; the innocent should not be stuck w/ damages done to them. Breunig 3. Tendency for courts to favor s in cases a. if its close, then the will recover, putting the insane into the graces of the insurance system 4. Minority: Exception for sudden insanity a. No prior notice that they were insane; equivalent to such physical causes as heart attack, seizure, fainting, etc. b. Insanity lowers the chance of someone being considered contributorily negligent (if they did not understand the danger) x. Standard of care for professionals (for malpractice) Exceptional level of training & experience 1. Generally a. Learning, skill, & abilities of a professional in good standing i. Minimum level of ability for type of license held ii. Specialists are held to a higher standard of care, but same approach applies b. Exercise of own best judgment i. Not liable for good faith mistakes

2.

ii. Not liable for being wrong, but liable for unRx acts resulting in injury c. Use of Rx due care i. Standards of practice must be known by affirmative evidence Medical Professionals (dont forget to also look for battery) a. Practices within reasonable schools of thought are not negligent, despite size of following b. Following custom is merely some evidence of non-negligence c. Negligence must be established by expert testimony unless it is so egregious that a layman would have no difficulty recognizing it d. Conspiracy of silence w/ doctors e. Testimony by other physicians is not sufficient as evidence of malpractice f. Traditional standard: Locality rule g. For specialists: National standard h. Trending toward same or similar standard. Partial remedy for conspiracy of silence i. Lack of informed consent involves

(1) failure to inform of material risk prior to obtaining consent (duty/breach); also applies to benefits to the doctor, (2) causation (would not have consented if knew of risks), and (3) damages i. Materiality: If there is an obviousness to the risk/consequences, then there is probably no claim of negligence 1. Majority: Significant risk if a Rx person would attach significance 2. Minority: Subjective determination of significance ii. Exception: Hysterical patients (if info is not in the best interest of Ps total care) iii. In emergencies, a doctor doesnt need to inform a patient of risks iv. May be liable to a nonpatient if they get a disease as a result of misinformation given to a patient 3. Legal Professionals a. Must not miss deadlines; would have to prove but for the lawyers negligence, would have won $X

(3) Breach Question of fact a. Sources of the Specific Standard of Conduct Utilized in Determining Breach of Duty (who decides Negligence cases) i. Rx determined by a trier of fact 1. Usually jurors decide questions of fact 2. When jury awards are too large, then the judge will intervene

b.

c.

ii. Rx determined by a judge as an issue of law 1. If obvious, then judge makes the decision 2. Question of law are for cases in the extremes (Y or N) iii. Rules of law established by Appellate courts 1. Rules of law usually need to change because new circumstances arise iv. Statutes or regulations adopted by courts Learned hand approach is the normal approach when determining breach i. (Probability of harm Gravity) > (Burden of prevention or utility) ii. Simplified: Combination of probability & gravity weighed against the burden of prevention Violation of Statute (also used for contributory negligence) i. Common law requires ordinary care not to injure; statutes are designed to protect others ii. Two types of Negligence: 1. Common law Negligence and Negligence per se a. Violation of statute is an add-on plead separately 2. Negligence iii. Failure to adhere to a statute can be evidence of negligence iv. Prerequisites for using violation of statute in D/B 1. P must be in class of persons statute intends to protect 2. Must be the type of injury statute intends to protect against (court jurisdictions split on narrow or broad interpretation) 3. Violation of statute must proximately cause the injury v. Once prerequisites are met, there are 3 judicial approaches to the violation: 1. Majority: Negligence per se a. Negligence is a question of law unless there is some excuse present (must be recognized excuse; most common is emergency situation) 2. California Rebuttable Presumption Approach a. Trier of fact presumes negligence, but if there is any Rx rebuttal, then it

is treated accordingly. Rebuttal doesnt have to be a recognized excuse; any evidence for rebuttal can be used (loose approach) 3. Some evidence approach a. loosest approach; most discretion for jury b. Gets case past a directed verdict i. Increases settlement value

d. Proof of Negligence (preponderance of evidence for each element) i. Direct evidence: Witness ii. Circumstantial evidence: Indirect inference iii. Res Ipsa Loquitur the thing speaks for itself 1. Elements a. Has to be an event that doesnt normally occur w/o negligence (OK if there are some possibilities of nonnegligence causing this harm, so long as it is probable) i. is in a better position b/c he caused it (element aids ) b. The instrumentality causing the injury must be under s exclusive management or control i. Exception only for medical professionals: Since the appendectomy case involved multiple parties that were highly integrated, then res ipsa loquitur was granted c. The injury must not be due to s conduct 2. If granted, how loudly does the granting of res ipsa loquitur speak? Weights of using res ipsa loquitur: a. Majority: Inference of negligence may be great or small, but far left of spectrum is off limits b. California: weak presumption of negligence. Public policy gives s the burden of production. If does nothing, then the presumption takes the over 50%. If puts anything productive forward, then the weight shifts to an inference of negligence. Disappearing presumption.

c. Rebuttable presumption approach w/

shifting burden of proof: Once the prereqs are established, then the is presumed to be the winner. then has to provide evidence to exonerate himself from negligence. (b) & (c) are similar. Product liability: Fewer people handling product makes res ipsa loquitur more likely Respondiat superior: employer liable for actions of employee Only look for res ipsa loquitur when there is a lack of direct evidence. Some jurisdictions say you cannot plead both negligence & negligence res ipsa loquitur

3. 4. 5.

(4) Causation-in-fact a. But for causation i. Scientific causation? (Yes or No) ii. Sine Qua Non: But w/o which. If unclear, then loses. Absolute certainty not needed (more likely than not will suffice) iii. Possibility of causation is not enough iv. Reduced chance of survival: Reduced chance of medical recovery is a sufficient injury, even when the P has a less than 50% chance of survival to begin w/ (the injury is considered lessened chance of living. 1. Creative causation results in no chance to recover pain & suffering or other noneconomic damages v. Daubert Test: Two prongs (reduced tort claims) 1. Testimony must be derived from the scientific method & reflect scientific knowledge

10

2. Must logically advance a material aspect of

the proposing partys cause (fit requirement) 3. Factors to consider: a. Whether the theory or technique is generally accepted in the scientific community. b. Subjected to per review & testimony c. Can be & has been tested d. Known or potential rate of error is acceptable vi. Joint & Several Liability Rule: If there are multiple responsible parties, then P can recover 100% from any one of them. Hill vii. CA Substantial Factor Test: Negligence if it was a substantial factor in bringing about the harm b. Traditional substantial factor test (2 fires): Use when rough sense of justice thinks should be liable but but for test fails i. 2 or more forces combine to bring about harm ii. responsible for only one of them, which is a substantial factor in bringing about the harm iii. Each force would have been sufficient to bring about the harm alone at the same time c. Alternative Causation (Summers v. Tice): Where i. is injured by negligence of only one of multiple s ii. All of the s acted negligently towards iii. cannot establish which s negligence caused the injury; then 1. The burden of proof is shifted to each to prove he did not cause the injury d. Enterprise Liability: Only works for a small number of . Liberal approach. Where i. is injured by liable manufacturer making a product ii. The market consists of goods that are in all material aspects identical iii. The named s representing a substantial share of the market iv. P reasonably cannot establish which manufacturer made the product that injured her; then 1. B/P shifted to each D on cause in fact, but 2. Each s liability limited to their market share (5) Proximate Cause a. Thin Skull Rule

i. Take as finds him ii. is generally liable for the unFx extent of a Fx personal injury to the . Bartolone iii. Doesnt apply to property b. Major approaches i. 2 speeds 1. 95% of cases [not that complicated]. Use Rx Fx & direct cause approach 2. Oh this is complicated, slow down ii. Majority: Rx Fx 1. Most courts hold defendant liable for all Rx Fx consequences of s negligence, including all Rx Fx intervening causes. Wagon Mound I 2. Some examples of intervening causes which are usually considered Fx include second accidents, escape attempts, rescue attempts, and negligence by doctors aggravating injuries iii. Direct Cause 1. Some courts hold liable if s negligence is a direct cause of s injuries, with no independent intervening causes of harm a. e.g., Polemis b. Note that this approach is generally broader than the Rx Fx approach and will in some cases lead to contrary conclusions regarding liability 2. Does not matter if the direct consequence is unforeseeable iv. Hindsight 1. Some courts hold liable if s harm is not highly extraordinary in hindsight. Rest. 2d sec. 435 2. Note that this approach is broader than the Rx Fx approach and will in some cases lead to contrary conclusions regarding liability v. Andrews Rough Sense of Justice (Palsgraf dissent) 1. Duty to everyone to refrain from dangerous acts 2. Liable if negligence, regardless of Fx harm c. Intervening Causes: Requires additional analysis (approaches 2, 3, 4)

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i. If an intervening cause is not Rx Fx, it is generally deemed to be a superseding cause, and is not liable 1. Second injuries caused by a weakened condition a. First injury causes a weakened condition; is liable for second injury resulting from weakened state (due to negligence) 2. Medical malpractice a. Generally, med. Mal. is a Fx intervening cause & is not superseding b. Original negligent party is still responsible for faults of a doctor (doctor is also at fault) ii. In special circumstances some courts find an intervening cause to supersede the s original negligence even if the intervening cause is Rx Fx. Some examples include: 1. s own negligence (Yun v. Ford Motors Company) a. Even if the were negligent, Changs intervening act supersedes b. In most cases, contributory negligence is Fx (might reduce or eliminate s recovery) 2. Fire Spreading to Second Building (New York rule [Ryan]; majority is contra) 3. Intentionally intervening act. If intentional, then it is not superseding. Hobo jungle case holding is a trend (taking intentional acts on a case-by-case basis to determine Fx) a. Malicious motive not required 4. Serving alcohol socially does not yield liability for drunk driving accident (Kelly v. Gwinnell) a. NJ Supreme Court at the time of Kelly was a -friendly jurisdiction b. Exceptions: Serving alcohol to minors & dram shop acts 5. Suicide (Fuller says not superseding; majority is contra)

a. Minority: sudden frenzy, uncontrollable impulse 6. Rescuers a. Danger invites rescue. Cardozo i. If you create a dangerous situation, you are responsible for those (even rescuers) injured by your negligence ii. Doesnt apply if rescuer acts recklessly (negligence is ok if rescuer is not reckless) 1. Give people a break when they are engaged in an emergency situation iii. Professional rescuers can still collect from negligent party 7. Escape attempts are usually Fx, and not superseding causes a. At some point, escape becomes UnFx 8. Acts of god a. Fx depends on locale iii. Defendant is generally liable for a Rx Fx injury even if it occurs in an UnFx manner 1. e.g., Derdiarian; R.R. loop note case 2. Note exception in many jurisdictions for criminal or intentional intervening cause (see above) (6) Injury

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Damages (1) Damages today: Much more limited before (less claims, less $); much higher now that it used to be (2) Remittitur a. Motions for remititur are very common b. There is a range of what is an appropriate damage; judge says the jury awarded more than what a Rx jury could give (remititur down to an appropriate damage) c. not b/c the judge would have given less (3) Additur a. Some courts it is unconstitutional; others allow it b. A Rx jury would have given more than the amount awarded; judge will increase damages to that lowest Rx amount (4) Types of damages: a. Compensatory b. General i. 3x special damages in the 1980s; now less (but still more than special damages) ii. Covers emotional distress, pain and suffering, humiliation 1. Questioned b/c it is impossible to compensate pain for $; also, general damages supports a nation of victims iii. If there are only special damages, lawyers could not get paid from anothers medical bills (take $ from pain and suffering) c. Special i. Out-of-pocket expenses (bills, repair/replacement, etc.) d. Punitive Damage i. Over and above compensation; meant to punish ii. Deters other from engaging in similar conduct e. Nominal i. Small sum ii. Vindication of rights; moral victory iii. Prevents from acquiring prescriptive rights (5) Attorneys fees a. English approach: Prevailing party is paid attorneys fees from the defendant i. Reinforces alternative dispute resolution ii. Comports with a basic sense of justice b. American rule: Each party pays their own attorneys fees (unless statutes exist) c.

d.

1. Often are much better funded than a riskaverse Contingency fees (most often used payment structure) i. % of winnings (not hourly) 1. 1/3 is a common level, but varies 2. Contingency fee can change over course of case 3. Fed govt max is 25% contingency fee; other statutes have max percentages 4. Not necessarily a windfall (spectacular failures w/ spectacular wins) 5. Argument for contingency a. Allows the poor to sue Collateral Source Rule (widely accepted rule) i. Montgomery Ward case ii. Hospital will accept the bill as payment in full 1. has to pay entire bill, not the that actually paid 2. If there is a collateral source for pain that benefits the , the s cannot benefit from that value a. Sometime a collateral source can be admitted for evidence this is largely an evidence issue

e. Mitigation of Damages
i. Zimmerman v. Ausland 1. Decision not to undergo surgery led to permanent injury a. In this case, the rule doesnt apply (surgery involves risk) 2. A cannot recover damages that could have been avoided by Rx conduct by the after the s misconduct 3. have a Rx duty to mitigate damages

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