BREACH REASONABLE PERSON Objective, moral & community standard.

State of mind irrelevant Inexperience, Gender, Disability Basic SOC Mental: easy to allege, hard to disprove Emergency sudden & unexpected, not responsible Infancy child of like age, intelligence, maturity & experience (Except: inherently dangerous & adult) STANDARD OF CARE B<PL burden (cost) of precaution < probability of injury X gravity of injury *Specify untaken precaution, show burden & causation, all potential harms, take right persp = relatively cheap and easy for foreseeable harm Custom Evidence whats usually done is evid of what ought to be done P: deviation as evidence of breach (Trimarco) *Custom not conclusive on SOC, identify custom precisely, show safety purpose, unreasonableness of deviation, watch for competing custom D: compliance as evidence D behaved reasonably Habit evidence not admissible Professional Mal: generally conclusive b/c archaic, highly regulated and specialized. Expert testimony required unless lay knowledge Safety Statutes (NPS) Judge. Statute stand in for SOC. P is in class of people statute is design to protect Injury P suffered is type contemplated by statute. *P shows: D violated (citation, conviction), violation caused P harm, compliance is evidence not proof. Defenses: 1. Excuse (majority) burden on D. (minority) general excuse. (Specific statutes preclude excuse) 2. Reasonable caretaking Procedural effect based on JDX: 1. Few Strict NPS [foreclose excuse or rebuttal] 2. Most NPS raises presumption [excuse or rebut OK] 3. Minor admissible evidence. Proof of Negligence CIRCUMSTANTIAL EVIDENCE Notice of hazard as evid of breach. D knew or should have known of hazard & take reasonable steps 1. Actual, 2. Constructive (banana), 3. Mode of Operation (foreign sub. D must show caretaking) Res Ipsa Loquitur infer breach from accident Probably Negligence accident doesnt ordinarily happen w/o negligence. Probably this D D exclusive control of instrum P not CN * no longer Procedural: 1. Most raises inference to pass DV/SJ, 2. Minor (CA) raises presumption if D nothing find P, 3. Information Asymmetry Ds Option: negate element, evidence of caretaking Ybarra: loosens control elem. Captain of Ship patient at mercy b/c unconscious. All Ds J/S Professional Malpractice Ordinary garden variety neg. no expert Med Mal: custom is conclusive on SOC. D required to exercise deg. skill possessed and practiced by Dr. in geo comm. Most JDX hold Dr. to national std. Some same or sim locality test. B/c of technical nature expert testimony is required. D can show conduct was recognized choice but judgment poor Informed Consent: SOC is choice of law. If JDX follows trad professional rule, P needs expert to show what Dr. in good standing does in JDX. Emerging rule is prudent patient [Ps autonomy is focus]. SOC is Dr. needs to inform patient of risks. DUTY Now: GDDC based on foreseeability (Heaven) No duty if no risk (punish mis v. non) Before: No duty w/ exceptions (Duty assigned by status, voluntarily, fault) B/c of Indus Revolution McPherson Cardozo: Old (no duty w/o privity). Exception (Thomas bella donna) ignore lack of privity: if the danger is to be foreseen, there is a duty to avoid injury.

Limited Duties Premises Defects Applies to passive defects only 1. Look for active negligence (mis) GDDC 2. [Non] D owner of prop, condition caused P injury Status Trichotomy Invitees Owners knowledge and mutually beneficial purpose. Duty to protect from harm owner knows/should about. Licensee Owners consent, business w/ someone else (social guest). Take premises as they find. Duty not to cause injury willful/wanton. Warn or make sage of defect which owner has active knowledge and guest is not aware. Trespasser enters w/o lawful authority or permission. Takes premises as they find. Duty to not caused injury willful/wanton or through gross negligence (traps) 3. New Trend: GDDC [Rowland Ds last ditch] (1) Foreseeability of harm to P, (2) Degree of certainty of injury to P, (3) Closeness of connection btwn Ds conduct and injury suffered, (4) Moral blame attached to Ds conduct, (5) Policy against danger, (6) Extent of the burden to the D and consequences to community, (7) avail. Insurance Limited Duty to Rescue Basic: No affirmative duty to act (mis v. non) Policies: YOYO & WITT Exc: Special relationship, voluntary assumption, creating peril, reliance, preventing aid, Samaritan Limited Duty for 3rd Party Harm Duty to warn/control: background no duty [Hoek], Duty is a policy question: relict pool of irresponsibility, mis v. non. Default Duty: GDDC Elements: (1) special relationship, (2) common undertaking, (3) D had some control of doer and responsibility for victim (CA medical) Tarasoff Duty: relationship with D & 3rd party: D has duty to control party and prevent harm to 3rd. Duty to named victim. D has a duty to foreseeable victims. Dunkl: not readily identifiable victim Limited Duty to 3rd Party Crimes (Public Duty) *Prop owners failing to take responsible steps to protect foreseeable criminal conduct. Harm is arguably foreseeable Feeling in system landlords cant be responsible for everything. Duty Tests: [Delta Tau Delta] 1. Specific harms test crime is foreseeable b/c happening now (too narrow) 2. Prior similar incidents test did it happen before? 3. Totality of Circumstances nature, condition, locat 4. Balancing Test (CA) degree of foresee. + burden of protective measures Public Duty Doctrine owed to public at large [Cuffy] Factors for Special Relationship: 1. Assumption by municipality [M] through promises or actions, 2. Knowledge by M that inaction could lead to harm. 3. Direct contact btwn M and P Limited Duty for Emotional Distress: NIED Old: No recovery unless physical injury Parasitic to Physical Injury: P subject to physical risk or threat. Impact Rule slightest touch Zone of Danger [ZPD] ED for own safety Center of Gravity: Foreseeability (MacPherson) Bystander to ZPD: P not subject to physical risk but witness injury to close relative. Old: Impact rule ZPD (majority) P must be in ZPD Guided Foreseeability [Dillon] P located near scene, witness accident, close relationship to V. Limited Foreseeability [Thing] Clohessy mom P closely related to V, contemporaneous sensory experience, serious ED, serious injury Independent Duty ED emotional harm w/o physical risk. Foreseeability is singing reason (like MacPherson) but courts are unwilling b/c of floodgates, fraud, speculative

Indep. Duty Continued. Case looks like Germinal Case: Molien (syphilis husband ED is foreseeable, no physical injury but direct victim) & Burgess (c-section) but safer than Huggins (overdose child) CAUSE-IN-FACT But-for but-for Ds breach, would P suffer injury? Substantial Factor Ds breach was a substantial factor Proof of Causation Traynor/Cardozo Approach: breach as evidence of causation (1) act is wrong b/c it increased risk of harm, (2) particular harm did occur, (3) allow jury to infer causation, (4) Let D rebut Calabresi clarification: (1) Common experience of causal relation, (2) D has better information, (3) mistake for D worse than for P Multiple Parties: J/S Liability [Fugere P hit front and back] Complex collision Single Indivisivle Rule: multiple Ds who all breach, but not sure who did it. J/S. burden shifts to D to show apportionability J/S Liability: 2 tortfeasors or 2 subseq torts, harm indivisible Alternative Liability: Summers Both Ds breach, only one caused the harm, similar risks for each SCOPE OF LIABILITY Arguably unforeseeable P, harm, intervening cause? Most scope questions are jury questions 1. Direct Consequences Test [Polemis]: tie harm to breach, D is liable (generally disfavored). 2. Foreseeability Test [Palsraf]: unforeseeable Ps are beyond scope of liability 3. Andrews Rough Justice: sometimes scope is outside what is foreseeable; judge must step in to cut off chain of liability. Little guidance, but common sense, practical politics, rough justice. Proximate cause must be something w/o which event would not happen. Court asks whether there was natural and continuous sequence btwn Cau + Eff Tips: P minimize freakishness, D emphasize freakishness Intervening Causes [Bigbee phone booth] Old: Intervening acts break chain Emerging Rule: could foresee the risk 3 Prong Test for Proximate Cause: Ds conduct must be substantial factor No rile or policy to relieve D because of manner of neg. Harm could have been reasonably foreseen or anticipated by ordinary intelligence and prudence. Egg Shell Plaintiff Rule - D takes P has he finds them. If injury is greater than D could have foreseen, D still liable. [Pace diabetic finger amputation] Applies to pre-existing physical or mental. Not mental Only, maybe NIED Rescue Doctrine: [Sears swamp] Danger invites rescue Suicide: outside scope DAMAGES make P whole Compensatory Damages General: Pain & Suffering, Loss of Enjoyment P&S: If P unconscious might not recover, states caps (CA $500k), Some unconstitutional b/c discriminates injury LoE: positive things P miss, uncon b/c inflates awards Consortium reduction in future lifestyle, sex, companionship Special: Medical [P&F], Lost income *Ps duty to mitigate take reasonable care not to aggrav. Collateral Source Rule [not admissible] ps damages not reduced by comp received by insurance, write offs Survival Statutes (estate after injury, before death) Wrongful Death (surviving family) familys loss of future wages/family income Punitive Damages malice, oppression, fraud (? Of fact) Purpose to punish, deter, societal compensation, ruin OK Std of Proof: clear and convincing >75% Const. Due Process Issues [Gore]: reprehensibility, ratio btwn Pun. & Comp., comparable civil penal. Single Digit Ratio *Cannot reduce based on Ps CN

DEFENSES Contributory Negligence: Ps conduct is a contributing, foreseeable cause of injury [Complete bar to Ps recovery most JDX reject] Comparative Fault Pure (CA) Ps recovery not barred by CN Mod AKA >50 (maj) Ps CN not greater than D Mod AKA >49 (min) Ps CN not as great as D Assumption of Risk 1. Traditional Elements: (1) Awareness of risk, (2) real appreciation that P could get hurt, (3) P still confronts risk = Ps recovery barred 2. Now: Most JDX abolish CN as a complete bar and use some kind of comparative fault (CF). 3. Once you have CF, AR is no longer a legal category. Instead you have 3 diff behaviors: Waiver all waivers are suspect, many are void as against public policy Contributory Negligence Spectator/Recreational Sports risk inherent in activity. IMMUNITIES Charitable: almost abolished Spousal: almost abolished Parental: varies by JDX Government: Old: could not sue sovereign b/c they make the law New: FTCA waives immunity except for ministerial and discretionary functions. Immunity applied to policy making/planning/resource allocation [Stoller turned on sprinkler causing addl damage. No discretionary exception] INTENTIONAL TORTS Battery: a harmful or offensive touching of the Ps person with intent and causation. Touching can be indirect. Std to determine if conduct is offensive is a reasonable person with ordinary sensibilities. Assault: an overt act that puts P in reasonable apprehension that an immediate battery will occur with intent and causation. Reasonable apprehension based on Ps perception of situation. Words alone not sufficient. False Imprisonment: An act of restraint that confines the P in a bounded area [no reasonable means of escape]. Length of time not relevant, but P must be aware of or suffer harm from imprisonment. Words OK if P believes its a threat. IIED: D engaged in outrageous conduct (exceeds all bounds of decency) with intent or recklessness and causation. Power imbalance circum evidence. Trespass to Chattel: P deprived of use for limited time, property damage, Ps possession is invaded. Conversion: P deprived of use for a long time, property lost or destroyed, amounts to forced sale. DEFENSES TO INTENTIONAL TORTS Consent (1) implied/apparent: conduct reasonably conveys consent, (2) implied by law: consent implied where action is necessary, (3) negated by law Self-Defense: D must reasonably believe he or she is in danger. Mistakes are allowed as long as the Ds beliefs were reasonable. Maj: no retreat req., Min: retreat if you can Defense of Others: D has reasonable belief that V has the right to self defense. Force must be proportional. Defense of Property: Reasonable force to prevent tort against property. Maj: no deadly force to protect prop., Min: deadly force OK [Castle Doctrine] Necessity: D invades Ps property in an emergency situation. STRICT LIABILITY Emerged with fault liability Traditionally: animals (wild yes, domestic no unless D knew of dangerous propensity or statute) Abnormally Dangerous Activities Germinal case: Ryland [guy build reservoir cotton mill near mine, leaked and flooded mine] Blackburn Test: if you bring something dangerous on property you are SL. Cairns Test: non-natural to prop then SL *Longtime disfavored, revived for environmental

Strict Liability Continued.. Recognized in 1st Rest: SL for engaging in ultrahazardous activities [uncommon, serious risk cannot be eliminated w/ reas caretaking, not matter of common usage] Question of law. Klein [fireworks exhibit]: risk created so unusual because of magnitude or surr circum to justify SL. Restatement 2d 502: focus on activities not stuff. People carrying on in abnormally dangerous activities are SL for harms. Question of law. Balance Factors: (1) high prob risk of harm, (2) likelihood harm will occur, (3) inability to eliminate risk even with due car, (4) not matter of common usage, (5) inappropriateness of location, (6) danger outweighs value to community. Policy: Posner safety deterrence 3 most important Fletcher non reciprocal risks Vetri: fairness, information disparity BEST PRODUCTS LIABILITY 1st: What is the defect? A defect is a defect no matter where you go! 2nd: DUTY: basic duty + Traynor Cases: [Greenman/Escola] Duty extended to all foreseeable victims. A manufacturer who enters into the market a product which poses peril to life or limb and which is intended to be used by ordinary consumer without inspection incurs strict liability for harms that result from products defect. P must show: D sold the product, P used the product in a reasonably foreseeable way, defect in the product was a proximate cause of Ps injury 3rd: Defectiveness (question for jury) Design Defect 402A (focus on design) a product is unreasonably dangerous to an extent beyond the expectations of ordinary consumer when used in an intended or reasonably foreseeable manner. Products design was a substantial factor in causing Ps injuries. Role of Advertising [Leichamer]: reasonable expectations from Ad Crashworthiness Doctrine: mfg have duty to make products that respond adequately if there is crash, but not required to make crash-proof Problems: open & obvious hazards, foreseeable misuse (standing on chair) Risk-Utility Analysis [expert testimony, focus on conduct] product is defective because the inherent risks outweigh the utility. BPL safety, efficiency, price Wade Factors (memorize) Rest. 3d 2: A product is defectively designed if there is a foreseeable risk of harm that could be avoided by a RAD, omission makes product not safe. *Always bring in evidence of RAD if possible Barker v. Lull (CA): Two Prong Hybrid Test 1. Product can be found defective in design if P establishes that the product failed to perform safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. No expert testimony required just knowledge of lay jurors. 2. P proves that the product's design proximately caused injury and where the defendant fails to prove, in light of the relevant factors, that on balance the benefits of the challenged design outweighed the risk of danger inherent in such design *P allowed to present expert technical evidence to rebut presumption that product was defective Manufacturing Defect 1. Proof of deviation from design specifications 2. Circumstantial evidence allowing an inference of such a defect Malfunction Theory [Ducko]: P has burden to show product was defective D was proximate cause of Ps injuries Defect existed at the time product left mfg

Warning/Instructions Defect P must show: D sold product w/o adequate warnings or instructions, P used product in a reasonably foreseeably way, failure to warn of known defect was proximate cause of Ps injury. Expert testimony ok Risk-Utility Analysis - [Nowak Aquanet] Heeding Presumption where warning is given, seller reasonably assumes it will be read and heeded. Causation: warning would have altered Ps behaviorSL: CAUSATION/SCOPE/DEFENSES Causation Tie defect to cause in fact - Ps failure to warn was a cause of Ps enchanced injury Malfunction: product didnt work as it was supposed to and P got hurt. Successive Corporate Liability: liability follows liability, not asset. Successive corp does not inheret liability. UNLESS K, continuation of asset, fraud Scope Courts more likely to characterize problem as DUTY questions or sufficiency of evidence Foreseeable use, misuse [Moran perfume in candle] Foreseeable risks: Bystanders maj: extends to bystanders, min: recovery Damages No duty to prevent product from injuring itself (recovery in warranty) Punitive damages OK if D acted with flagrant indifferent for public safety. Economic Damages: medical [p+f], loss of enjoyment, lost earnings, pain and sifferring Defenses: Comparative Fault triers of fact determine % of Ps damages attributable to defective or unreasonable dangerous product as well as % of Ps own fault. Crashworthiness (Enhanced Injury) Ps failure to warn was a cause of Pif P suffered $100k, but $50k of product was defective, mfg liable for $50k. [Min: no enhanced injury defense] Types: (1) P ordinary neg, (2) knowing unreasonable assumption of risk, (3) misuse of product, (4) failure to discover or guard against defect.