Torts I Gash Class Outline

PART 1: INTENTIONAL TORTS

I. BATTERY
1. Volitional Act
Definition: A conscious act of ones volition, also an external manifestation of the will Example: Reflexes arent volitional; being pushed into someone also isnt volitional; walking into someone is volitional, etc.

2.

Intent to Cause Harmful or Offensive Contact

Definition: Intent is subjective what the tortfeesor knew. Need to intend to cause contact that ends up being harmful or offensive. EXCEPTIONS: When mentally instability deprives the tortfeesor of the ability to understand the consequences of his or her conduct then it is objective. Would a reasonable person understand the consequences? TRANSFERRED INTENT: If you have the intent for one intentional tort, then you can transfer that intent to another tort. Except for IIED. You can also transfer intent from one person to another.

A. Purpose or Desire
Definition: Specific Intent.

B. Belief of Knowledge to a substantial certainty

Definition: More than probably but less than positive. General Intent.

3. Causation
Definition: But for the volitional act, the harmful or offensive contact would not have occurred.

4. Harmful or Offensive Contact

Definition (Harmful): Bodily harm is a physical impairment of the condition of anothers body or physical pain or illness. Physical impairment is any alternation of the structure or function of anothers body. Definition (Offensive): Bodily contact is offensive if it offends a reasonable persons sense of personal dignity, unwarranted by the social usages prevalent at the time and place. EXCEPTION: If the actor is aware of the persons hypersensitivity. Definition (Contact): Contact can include anything associated with ones body. Contact includes touching anything so intimately connected with ones body so that it is considered part of ones person.

II.

ASSAULT
1. Overt Act

Definition: Need an overt act. Mere preparation isnt enough. Ex. Loading a gun. Words alone arent sufficient. Words can negate an act. Ex. If you werent a law student then Id shoot you. EXCEPTION: Unprivileged conditional threat from an independent source. (Privileged threats arent exceptions). Ex. There is a snake that is about to bite you.

2. Intent to Cause Imminent Apprehension of Harmful or Offensive Contact

Definition (Intent): See Battery Definition (Imminent Apprehension): Without significant delay. Threats of future action arent enough to be imminent. Ex. I will kill you tomorrow does not create imminent apprehension.

3. Causation

Definition: See Battery

4. Actual, Reasonable, and Imminent Apprehension

Definition: Actor does not need actual ability, but needs apparent ability to a reasonable person. Apprehension of a harmful or offensive contact. Need apprehension of a contact to the persons own body. Apprehension does not mean fear, just contact. Ex. A little boy can cause apprehension to a body builder. If there is no intervening event by either plaintiff or another and the assault would happen anyways, then there is an assault. Plaintiff is under no duty to act to avoid the assault. EXCEPTION: If actor is aware of hypersensitivity. MINORITY VIEW: Apprehension need not be reasonable. Ex. If you are a mile away and you are intending to cause apprehension and you cause apprehension, then it is assault.

III.

FALSE IMPRISONMENT
1. Act

Definition: Failure to act doesnt constitute an act unless you undertake a duty to act.

2. Intent to Confine Within Boundaries 3. Causation

Definition (Intent): See Battery; Transferred intent applies. Definition: See Battery Definition:

4. Actual Confinement

Confinement does not include confined from a place. Confined location does not need to be stationary. Ex. Kept in a moving car boundaries is the car. o Confined area can be as large as a city or a state. If there is a reasonable means of escape then you arent confined. o If you have to expose yourself or your chattel to harm, then it isnt reasonable. o If you have to subject yourself to circumstances that would be offensive to a reasonable person. o Reasonable escape has to be apparent to a reasonable person. o EXCEPTION: If confiner is aware of hypersensitivity. (In regards to reasonable means of escape.) Confinement has to be unlawful. Confinement can be under duress but not moral persuasion. Ex. Pointing a gun is duress, but saying that I wont be your friend is moral persuasion. Confinement maybe by physical force or submission of physical force o Submitting to physical force is sufficient to actual confinement even if you can over power it

5. Awareness of the Confinement OR is Harmed by the Confinement

Definition: Have to be aware of confinement, but not aware of who is confining you. Have to be harmed by actual confinement, not events leading up to or from confinement.

IV.

INTENTIONAL INFLICTION

OF

1. Extreme and Outrageous Act

EMOTIONAL DISTRESS (IIED)

Definition: To go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community. Note: Act can be aimed at property (including pets) if intent is to Severely Distress you.

2. Intent to Cause Severe Emotional Distress

TRANSFERRED INTENT DOES NOT APPLY!

A. Purpose or Desire
Definition: See Battery (Thats what I want to do)

B. Belief or Knowledge to Substantial Certainty

Definition: See Battery (Pretty sure that will happen)

C. Recklessness
Definition: A conscious disregard for a high probability of harm. (High degree of probability I am ignoring.)

3. Causation
Definition: See Battery

4. Severe Emotional Distress

Definition: Distress so severe that no reasonable person can be expected to endure it. Response to distress has to be reasonable given the conduct. EXCEPTION: When actor is aware of hypersensitivity.

V.

TRESPASS

TO

LAND

1. Volitional Act
Definition: See Battery

2. Intent to Enter Land of Another 3. Causation

Definition: See Battery for elements; Intent to Enter Land that Just Happens to Belong to Another Definition: See Battery

4. Actual Entry Onto Land of Another

Definition: No damages to land are required. Land does not need to be owned; just land of which another has rightful possession. Ex. A landlord can trespass onto property he is renting to tenants. Land extends to a reasonable amount of airspace above their land. Ex. Shooting bullets over someones land. o Also extends to a reasonable amount of ground below. Overstaying welcome can be trespass after consent is revoked PARTICULAR MATTER: i. Volitional Act ii. Intentional Act that foreseeably leads to invasion/entry of land of another iii. Causation iv. Actual harm to land

VI.

TRESPASS

TO

CHATTELS

1. Volitional Act
Definition: See Battery

2. Intent to Deal with Chattel of Another in the Manner Dealt

Definition: See Battery for Elements. Do not have intend to deal with someone elses chattel. Have to intend to deal with chattel that happens to belong to someone else.

3. Causation
Definition: See Battery

4. Invasion of Chattel Interest A. Intermeddling with Harm B. Dispossession for a Substantial Period of Time

Definition: The chattel is impaired to its condition, quality, or value. Definition: Owner has to be aware of being dispossessed to constitute a substantial period of time. Taking it away from you or depriving you of a use. Ex. Taking away your car keys, dispossesses you of your car. Mistake is not a defense.

NOTE: Big brother of Trespass to Chattel. Do both Analyses. Can be both Trespass to Chattel and Conversion.

VII.

CONVERSION

1. Volitional Act

Definition: See Battery

2. Intent to Deal with Chattel of Another in Manner Dealt

Definition: See Trespass to Chattel; Can convert ideas and other non-tangible property.

3. Causation
Definition: See Battery

4. Invasion of Chattel Interest that is so seriously as to warrant a forced sale A. Intermeddling with Harm (so seriously as to warrant a forced sale) B. Dispossession for a substantial period of time (so seriously as to warrant a forced sale)

Definition: In determining severity look at: Extent and duration of the actors exercise of dominion or control Actors intent to assert a right in fact inconsistent with the others right of control Actors good faith o When the actor intends to affect the chattel in a manner inconsistent with the owners right or control, good faith and mistakes wont matter. Ex. Garage gives car to wrong driver, still liable for conversion. o Innocent purchasers cannot obtain good title from a thief. Extent and duration of the resulting interference with others right of control Harm done to chattel Inconvenience and expense caused to the others Definition: Necessary for demand return of chattel Majority view: conversion starts at point possessor takes domain over chattel; can have separate causes of actions for initial and refusal. Minority view: Possessor is only liable if they refuse to return goods. EXCEPTION: IF YOU INTERMEDDLE WITH SOMEONES CHATTEL WITH THE INTENT TO STEAL IT, IT IS AN IMMEDIATE AND AUTOMATIC CONVERSION. Boys Act Frantic If Thrashing Thunder Claps

PART 1.5: PRIVILEGES

I. CONSENT

FOR

INTENTIONAL TORTS

1. Types of consent A. Actual (Expressed)

Orally or in writing.

B. Implied (Apparent) i. Customs you can touch people in this way ii. Actions

Definition: The normal customary contacts of action. Ex. Professional football what contacts are you consenting to? Definition: Would a reasonable person believe that the person was consenting or would a reasonable person would not believe failure to respond constituted consent.

C. Implied in Law i. Docs consent during surgery:

Plaintiff unable to give consent AND 1. I.e. Unconscious, Mentally ill, Incompetent, Intoxicated iii. Emergency AND iv. Reasonable person would consent AND v. No reason to believe the plaintiff would not consent Note: Adults can refuse treatments for themselves, but for life and death procedures of their children the State can step in against treatment refusal.

ii.

2. Exceptions A. Duress B. Fraud

Note: Can also apply to failure to correct a mistake you are aware of. If the fraud is only to a collateral manner, then consent still applies. Ex. You consent to a pie in the face for charity, but later find that the money went to another purpose consent stands.

C. Incapacity

Note: Can commit a battery while drunk, but cannot consent to a battery against them while intoxicated.

D. Illegal Some things in society you cant consent to E. Exceeding the Scope of Consent

Note: Mutual Combat: Majority: Consent is ineffective and you can sure. Minority (& Restatement): consent is effective.

II.

SELF-DEFENSE
1. Existence of privilege Anyone is privilege to use reasonable force defend himself against a threatened battery on the part of another 2. Retaliation The privilege is one of defense against threatened battery, and not one of retaliation. B. When the battery is no longer threatened, the privilege terminates. Reasonable Belief A. The privilege exists when the defendant reasonably believes that the force is necessary to protect himself against battery even though there is in fact no necessity Provocation A. Words arent enough B. If words accompanied by an actual threat of physical violence then enough provocation. Amount of Force A. Limited to the use of force that is reasonably appears to be necessary for protection against a threatened battery B. To justify resistance with a deadly weapon, defendant must have a reasonable apprehension of loss of life or great bodily injury Retreat A. Defendant may stand his ground and use any force short of that likely to cause seriously injury B. Common law rule was that rather kill his assailant or seriously wound him, defendant must retreat to the wall i. Does not require retreat in ones own home Injury to 3rd Party

A. A.

3.

4.

5.

6.

7.

A. If X, defending himself against A, harms B transferred intent applies and so does transferred privilege. 8. Threatening Uses of Force A. Can threaten more than you are privileged to use

III.

DEFENSE

OF

OTHERS

Note: Can use as much force as you would for self-defense. Reasonable mistakes: Majority: Have privilege to defend others if it was reasonable to believe they had a privilege of self-defense. Minority: Whatever privileges the person you are defending has, you have.

IV.

DEFENSE

OF

PROPERTY

Note: Warning first required Cannot use deadly force to defend property, only to defend yourself. Use reasonable fore necessary to the situation as it appears to the defendant. Privilege to defend land against intruders, but not against authorized entry. Can threaten more force than you are allowed to use.

V.

RECOVERY
1. Basic A. B. C. D.

OF

PROPERTY

Elements Property taken tortuously Fresh pursuit (no undue delay) Demand for return if feasible (unless it is futile) Reasonable amount of force (non-deadly) if there is resistance

Note: Cant use force to recapture chattel sold under conditional sale. Ex. Purchasing a car that is financed through the bank. Doesnt apply to Real Property. No necessity land isnt going anywhere.

2. Shopkeepers Privilege A. Reasonable suspicion B. On or near premises (dont have to detain before they leave the store) C. Notification of suspicion/demand for return D. Reasonable force/search E. Reasonable detention

VI.

NECESSITY

1. Public Necessity
A. A person is privileged to enter land of another and interfere with chattel of another if it reasonably appears necessary to advert a public disaster B. Dont have to be a public official to use public necessity C. Reasonable force is allowed even deadly force but has to appear reasonably necessary.

2. Private Necessity A. Ive got something that is in peril and in order to save it, I need to commit a tort on you.
i. Have to be preserving your more valuable item or interest at the expense of someone elses less valuable item or interest. ii. Ex. Need to tie ship to dock to save ship during storm; allowed to trespass.

B. Still liable for any damages that occur

i. Ex. Still need to pay for damages to dock.

VII.

AUTHORITY

OF

LAW

Note: Private citizens can arrest or detain others for a felony committed in their presence. Reasonable mistake for crime isnt generally allowed. NOT TEST ITEM

VIII.

DISCIPLINE

Note: Parent has right to train child as he or she sees fit, but there are reasonable limitations. NOT TEST ITEM

IX.

JUSTIFICATION

When nothing else fits, but you were justified. Catch all. NOT TEST ITEM

Chris Stolen Donut Dough Rendered No Donuts Ate Justly.

PART 2: NEGLIGENCE
I. DUTY

A. Standard of Care

1. The Average Reasonable Person in Same or Similar Circumstances a. Omission to do something which a reasonable man would do in those circumstances OR b. Doing something a prudent and reasonable man wouldnt do Note: Objective Standard 2. Cant plead ignorance. Jury will not take into account a lower degree of knowledge or a lower amount of inspection 3. If you have superior knowledge, you are held to that knowledge 4. Emergency situation not of your own making a. An exception to TARP standard of care b. What would a reasonable person do in the emergency situation? 5. Disability a. Standard is that of a reasonably person with the same physical limitations/attributes of the defendant b. If you have superior abilities, you are held to the standard of a reasonably man with the same superior abilities 6. Intoxication If it is voluntary it is still the average reasonable person and not the average reasonable drunk person 7. Children a. Normally held to the standard of care for a reasonable child of the same age, maturity, training, experience, and intelligence Except when the activity the child engages in is inherently dangerous, then the child should be held to an adult standard of care (i.e. driving a motor vehicle) i. Inherently dangerous are activities generally considered capable of resulting in grave danger to others and to the minor himself if the care used in the course of the activities drops below that care which the reasonable and prudent adult would use 8. Mental Incapacity

a.

b.

a.

Majority Rule: Standard of Average Reasonable Person without delusion

i. More justifiable to person you hit ii. So everyone does not use as defense iii. Not as objectively justifiable

b.

Minority Rule: A sudden mental incapacity should be treated like a sudden physical incapacity instead of chronic mental illness i. Any notice of delusion prior history ii. Cant control abilities

B. Professional Standard of Care

1. Standards a. One engaged in business or occupation that requires special skills is held to the standards of that occupation b. Specialists may be held to higher standard c. Standard is still objective

d. Average = ordinary not median 2. Expert Testimony a. Need Expert testimony when you are asking the jury to make a determination that is beyond the common layjurors experience. b. I.e. if you are saying a professional fell below the S of C then you would need an expert to educate a jury as to what the S of C is. 3. Attorneys a. Expected to use ordinary skill, exercise best judgment, and reasonable care b. Not liable for mere errors of judgment or for a mistake in a point of law that isnt settled and on which a reasonable doubt may be entertained by well informed lawyer c. Lawyer is liable for not using degree of knowledge and skill of ordinary attorney and for omission of reasonable care and diligence d. If better judgment held to that standard e. Messing up statute of limitations will virtually always equal malpractice f. Dont forget that you need to show damages i. Also need to show that the client would have won the underlying case 4. Medical Malpractice a. Dr. presumed to possess degree of skill and learning as ordinary doctor in good standing and to apply with ordinary and reasonable case (Reasonably prudent Doctor) b. Doctor must have done something or abstained from something outside of recognized standard to be liable c. Negl. is never presumed and must be proven d. Departing from standard of care must be est. by expert witness unless such gross negligence a layman would understand (experts define std of care) i. Ex.: Still having a needle inside of skin would not need an expert to determine that is negl. e. Just b/c another doctor would have taken another course doesnt mean def deviated from std of community

Note: In medical arena custom is inclusive and very often control. Only profession that it isnt merely influential. Note: Also applies to board certified doctors, hosp.,

med labs, and other health care measured against the national std
f. 3 Approaches to Std of Care:

i. ii.

Locality Rule average reasonable doctor that practice medicine where this doctor is Modified Locality Rule similar community in similar circumstances (*Majority*)

C. Duty to Act

iii. National Standard (New trend) 5. Informed Consent a. Must allege and prove (burden is on plaintiff) i. Doctor failed to inform patient adequately of a material risk before getting consent for treatment ii. If patient had been informed of risks, patient wouldnt have consented iii. Unknown risks did occur and patient was injured as result b. Exception to disclosure (privilege burden on doctor to prove) i. No need to disclose: Common knowledge; patient already knows or should know ii. Full disclosure will be detrimental to patients overall health iii. In an emergency when patient cant determine whether treatment should be administered c. To have informed consent need to disclose: i. All material risks ii. Adequate information about treatment iii. Available alternatives d. Who should decide whether or not you should hear information, doctors or patients? Split of Authority. e. Should a person be able to recover if a reasonable person would still opt into the surgery but this patient wouldnt? i. Reasonable patient standard Majority Rule ii. Minority look at it from this patient f. A doctor must disclose personal interest unrelated to the patients health (i.e. research, economics) that may affect the doctors medical judgment i. Duty to disclose any collateral benefits/conflict of interest
1. Under common law there is no duty to act except: a. When the injury is by an instrumentality under your control i. Usually when it is on your premises ii. You arent liable for their original injury, but you have a duty to come to their aid iii. Liability is limited to aggravation of original injuries b. Special (control) Relationship

D. Licensee, Invitee, Trespasser

Examples: 1. Captain/Sailor 2. Employer/Employee 3. Teacher/Student 4. Parent/Child 5. Spousal 6. Jailor/Inmate ii. Liability for Special Relationships: 1. Knowledge of violent tendencies/specific events (either actual or constructive knowledge) 2. Control an ability to do something about it iii. Psychiatrist/Patient psychologist has a duty when they know the specific person the threat is directed to. 1. No duty to warn unless the psychologist has reason to believe patient is a serious threat c. You negligently cause peril d. You Create a dangerous condition i. Even innocently; you have a duty to act reasonably e. You innocently cause peril i. If injury or peril was cause innocently, you have no duty under common law, but you do under modern law f. You undertake a duty to act (reliance) i. If you decide to help someone, at that point you undertake a duty and have to act reasonably ii. Usually situation is including reliance, but that isnt a requirement

i.

1.

Owe a different duty when someone is injured on your property 2. Trespasser a. Person liable is the trespasser b. Lowest level of duty of care c. You have a duty to warn a known trespasser about artificial conditions on the land (something youve created on the land that is dangerous). Natural conditions (i.e. a cliff) you dont have a duty to warn. d. If the trespasser is unknown, you dont have a duty e. Foreseeable trespassers are treated as known trespassers 3. Licensee a. Someone who enters the land with the expressed or implied consent of the land possessor and who is not an invitee b. Social guests, door to door salesmen, someone who loses the invitee status c. One who goes on anothers property for companionship, diversion, or entertainment. d. What duty do you have? i. Duty to warn about known dangers ii. Just have to warn, dont have to prevent

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E. Unborn Children

4. Invitee a. An invited is one who comes onto land with the expressed or implied consent of the occupier as a business invitee or a public invitee i. Business invitee is one who is on the premises for the potential economic benefit for the land occupier 1. If it appears that a person had no intention of presently or in the future becoming a customer, he could not be held to be an invitee, as there would be no basis for any thought of mutual benefit ii. Public invitee is one who is on land open for the public at large b. What duty do you have? i. Owner has duty to use reasonable care to keep premises reasonably safe. 5. California Approach a. Licensee and Invitees have the same level of duty. There is not 3 prong approach. 1. Personal Injury/Wrongful Death a. Majority: draw line at viability for liability b. Minority 1: draw line at birth c. Minority 2: draw line at conception 2. Wrongful Conception a. Any breach of duty that leads to conception (botched sterilization products etc) b. What is recoverable? Costs associated with pregnancy and birth. i. In a few jurisdictions if you can prove that the reason you didnt want to conceive was financial, then you can get costs of raising child to majority 3. Wrongful Birth a. Breach is post conception suit brought by parents b. Have to show that parents would have aborted child if they had known the effects on the child c. But for breach of duty, the baby would not have been born d. Majority allow for wrongful birth e. What can be recovered? i. Costs associate with the birth minus the cost of an abortion ii. Most courts will not allow for pain and suffering costs of parents iii. No recovery for emotional distress for child iv. Extraordinary special damages 1. Due to the condition of the child that the parents now have to pay (med. costs, etc.) 4. Wrongful Life a. Breach is post conception suit is brought by child b. See Wrongful Birth for elements

iii. General rule is what you do know, not what you have reason to know

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c. Majority does not allow claims for Wrongful Life because life is always preferred over non-life

II.

BREACH

A. B < PL
1. Burden = What you have to give up and what society has to give up 2. Risk = Probability (P) * Gravity of Injuries (L) a. Social Value b. Extent of Chance c. Extent of harm d. Number of Person Harmed e. How important is it that someone doesnt get hurt 3. Utility = flip side of B (R/U) a. What is the value of doing what you are doing? b. How likely is it to hurt someone doing what you are doing? c. How much do you lose by doing it another way?

4. 1.

Standard for breach analysis, not custom Definition: A standard of behavior fixed by a court the failure to comply with is a breach a. Court says heres what a reasonable person would do and you didnt do it breach b. Here is what you have to do and if you dont do it this way you breach a duty of care

B. Rules of Law

C. Negligence Per Se

1. Elements a. Statute/Regulation/Ordinance b. Violated c. Class of Persons the statute was designed to protect d. Harm done is type that the statute was designed to prevent e. Court has to expect it 2. Approaches a. Violation of statute as Negligence Per Se (*Majority*) i. If you satisfy 1-4 ten we have a breach of a duty except if the judge determines there is an excuse ii. Judge makes determination do we have an available excuse b. Rebuttal Presumption i. We presume it is a breach of duty if you satisfy but it is not a breach if you can prove an excuse ii. Who decides the excuses? Jury can determine there is an excuse even if not given any in instructions c. Evidence i. Can use statute that they breached as negligence ii. Jury can consider it 3. Examine Statute Abstractly a. Does the statute clearly prohibit conduct? b. Would apply Negl per se create liability without fault? c. Whether injury was directly or indirect from violation of statute?

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4. Rebuttal Presumption (Negl. Per Se Excuses) a. Were they acting like a reasonable and prudent person and therefore excused for breaking the statute?

D. Proof of Breach
1. Actual Notice (& then did nothing about it) 2. Constructive Notice (Def should have known that the danger had arisen) a. Reasonable amount of time test 3. Condition is Caused by Defendant 1. Doesnt occur absent negligence (probably negligence) 2. Exclusive control by the defendant of the instrumentality (probably you) 3. Other causes have been sufficiently eliminated (probably not someone else) a. RIL recognizes that there is not always evidence available to P show prove negligence. D has superior knowledge. b. RIL can apply to multiple Ds we shift the burden to individual Ds to prove that it wasnt them (Split of authority re this) 4. 3 Views if you have a RIL case: a. It warrants an inference of negligence which the jury may use or not at their judgment i. Inference of Negligence ii. Majority Approach iii. Jury may infer there is a breach of duty iv. Plaintiff has burden of proving RIL v. Persuasion = more likely than not x happened b. It raises a presumption of negligence which requires the jury to find negligence if D doesnt produce evidence sufficient to rebut i. Rebuttal Presumption 1st minority approach iii. Once you prove RIL then the burden shifts to the def to rebut one or more RIL elements iv. If no rebuttals then duty is breached v. If there are rebuttals then it is a jury questions vi. The burden of persuasion remains with P c. If not only raises such a presumption but it also shifts the ultimate burden of proof to the defendant and requires defendant to prove he wasnt negl i. Rebuttal Presumption with a Shifting Burden of Persuasion

E. Res Ipsa Loquitur (The thing speaks for itself)

ii.

ii.
III. FACTUAL CAUSE

2nd Minority approach iii. Same as other minority approach except that the burden of persuasion is with the def A. But for the negligent conduct, harm would not have occurred 1. Would we have the injury without the breach? B. Medical causes need to be proven to a reasonable degree of medical probability (possibility isnt enough) C. Medical Misdiagnosis: there needs to have been above a 50% chance of survival before negligence (*Majority Rule*)

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1. Minority Rule Loss of chance at life multiplied by damages D. Multiple factual causes: 1. When two forces are actively operating and either would have caused harm themselves, then both are liable for but for causes 2. When two or more defendants are negl. and produce a harm, only one of which could have caused, the burden of proof shifts to defs a. P has to sue all possible defs 3. Market share liability: Each def is responsible for the market share it owned for the product that caused Ps harm. (mostly for drug product liability) a. In CA (minority) need to sue a substantial market share

IV.

PROXIMATE CAUSE
A. Andrews
1. Practical Politics & Rough sense of justice question of policy 2. You get to whatever result you think is fair rough sense of justice 3. Factors: a. Natural and Continuous b. Substantial Factor c. Directness d. Attenuation e. Foreseeability i. Hindsight test has been rejected f. Remoteness in Time and Space

B. Cardozo

1.

C. Reasonable Foreseeability

See analysis for foreseeable plaintiff but Cardozo calls this a duty question

Would a reasonable man having the expected knowledge and experience of the def know that the accident could occur? 1. Manner a. Still Prox. Cause (how)

i.

Except in the minority when it is highly extraordinary, then no prox cause

2. Extent a. Still Prox Cause (how bad) b. Take the plaintiff as you find him (eggshell skull)

c.

D. Restatement 3rd 3.

3. Type a. No Prox Cause (what) 4. Plaintiff a. No prox cause (who) b. Was the P in the orbit of danger, range of apprehension? c. Can be an unforeseeable class of persons 1. Results within the risk? 2. Was the type of harm imposed by the breach of duty Really a Foreseeable Type analysis

NY Fire Rule (Minority) Liable for first thing you burn other than your own. Too many variables beyond that. Most jurisdictions rely on foreseeability instead

E. Direct

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1. Are there any intervening causes that arent caused by the breach of the duty of care (Quick analysis) 2. Most cts say that it isnt fair for a def to be held liable for all consequences however unforeseeable or however grave, so long as they are direct 3. Not fair to justice or morality F. Intervening Causes 1. Where the acts of a third person intervene between the defs conduct and the Ps injury, the causal connection is not automatically severed a. Liability depends upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendants negl. b. Was the intervening act foreseeable? If yes, liability. If no, no liability. (Common Law Approach) Restatement 3rd: when a force of nature or an independent act is also a factual cause of physical harm, an actors liability is limited to those harms that result from the risk that made that actors conduct tortuous i. Was the ultimate type of harm foreseeable or not (Modern Approach) 2. Criminal/Intentional Acts a. Original Approach (Reputed everywhere): Every criminal or intentional act is automatically a superceding cause b. Modern Approach: What is the foreseeable type of harm? i. Dont ask whether the intervening act was foreseeable, but was the type of harm c. The mere fact that the concurrent cause or intervening act was unforeseen will not relieve the def guilty of the primary negl from liability. i. If the intervening agency is something so unexpected or extraordinary as that he could not or ought not to have anticipated it, he will not be liable ii. He is bound to anticipate the criminal acts of others by which the damage is inflicted 3. Suicide a. Majority suicide is a superceding cause b. Minority an act of suicide is not a superseding cause if the suicide is an irresistible impulse caused by the acts of the def. 4. Rescue Doctrine a. It is foreseeable that someone will come to the rescue of someone else b. Elements: i. Def is negl (duty/breach) ii. Negl put someone in peril iii. Peril must appear imminent to a reasonable person iv. Rescuer was not wanton or reckless c. Professional rescuers: Common law there is no prox cause in line of duty because you were already being compensated for the job risk.

c.

15

Modern approach: trend away from common law and allowing professional rescuers to recover. Split of authority, d. Rescue doctrine still applies if person being rescued is the negl party. e. Medical malpractice is foreseeable G. Social Host Rule 1. Majority: no liability for the social host because the is no duty or no prox cause 2. Minority: Social host is liable for negl in serving alcohol and allowing an intoxicated adult to drive 3. Exception: Minors. There is liability for allowing minors to drink and drive. 4. Dram Shop Act Commercial est. are liable. H. Cutting off liability Grandchildren of DES takers cannot hold drug manufacturers liable

i.

V.

DAMAGES

A. Types: 1. Nominal a small sum of money in order to vindicate rights 2. Compensatory compensate the plaintiff make the P whole 3. Punitive punish the Def B. Categories 1. Special (economic) a. Medical expenses (past and future) i. Includes hosp., doctors, psychiatrists, physical therapists, nurses, medications, x-rays, crutches, brace, going off to a different climate, etc. b. Lost wages i. How much you would have made during your work life and how long your work life is ii. Difficult to determine earning capacity if unemployed or if child c. Property Damages d. Rental Value 2. General (non-economic) a. Physical and Mental Pain and Suffering Past, Present, and Future b. Mental Anguish c. Disability and Disfigurement d. Loss of Consortium (Companionship and society that one loses) C. Notes: 1. Goal is to make P whole. Only tool is money. Jury has to give all of the money right now. 2. Reviewing judge will not change a jurys damages unless it is deemed excessive by falling outside the range of fair and reasonable compensation or results from passion or prejudice or if it so large that it shocks the judicial conscience. 3. A fear of contract illness isnt enough for damages, but more courts are setting up medical monitoring funds from the defs 4. Damages need to be in present value for future use. 5. Per diem argument adding up per day how much something is worth Most courts will not allow 6. Loss of enjoyment of life most courts will allow D. Collateral Source of Recovery

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VI.

1. Any amount of money to the plaintiff from source independent of the def will not reduce the amount owed by the def 2. Jury doesnt get to know about insurance coverage E. Duty to Mitigate 1. Would the average reasonable person engage in the mitigation involved? If so then you cannot recover for permanent damages. 2. What about religious beliefs? a. Some courts dont take it into account and just use reasonable man std b. Some courts use std of a reasonable man with this religious belief

NEGLIGENT AFFLICTION

OF

EMOTIONAL DISTRESS

VII.

A. Types 1. Direct a. Common law Impact Rule i. You can recover emotional distress damages even if you have no physical injury a long as there was physical impact because then we have reason to believe you arent faking it. ii. Been rejected by most courts b. Majority Rule Physical manifestation of emotional distress i. Where a definite and objective physical injury is produced as a result of emotional distress prox caused but defs negl conduct ii. P may recover in damages for such physical consequences to himself notwithstanding the absence of any physical impact upon plaintiff at the time of the mental shock 2. Bystander a. Old Dillon Rule: Consider following factors: i. Geographic proximity ii. Temporal proximity iii. Relational proximity b. Modern Rule: Need following elements: i. Closely related to victim 1. Limiting recovery to persons closely related by blood or marriage: Parent, child, sibling, or spouse. ii. Contemporaneously perceiving the accident 1. Can include hearing iii. Serious emotional distress beyond that which would be expected from a disinterested bystander c. Connecticut Test: Also includes or arrive soon thereafter and that the actual injury must be serious. B. Claim you bring when you dont have a physical injury caused by negl or an intentional tort

CONTRIBUTORY/COMPARATIVE NEGLIGENCE

A. Elements: 1. Duty, Breach, Factual Cause, Prox Cause, Damages B. Common law: Contributory negligence: 1. If a plaintiff cause own damages, then they received nothing from def

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C. Modern Approaches: 1. South Dakota a. Slight v. Gross b. If P was only slightly negl then P isnt barred. If P was grossly negl, then P is barred. 2. Contributory Negl a. If P is 1% responsible, then P gets nothing b. Only in 4 states 3. Comparative Negl

a.

VIII.

D. Notes 1. What if there are multiple Ds? Do we add up the percentages? Split of authority 2. Setoff approach a. If P has $100k of damages and D has $50k in damages, setoff jurisdictions would just give P $50k.

Pure Form (CA & 11 other states) i. If P is one 1% responsible, then P gets 99% of damages ii. P can recover amount of damages attributable to the def b. Modified i. Less Than 1. As long as the Ps percentage of fault is less than the Ds, then there is no bar 2. But if Ps percentage is equal or more than D, P id barred from recovering anything ii. Not Greater Than 1. Like less than, but the difference is that if P and D each have 50%of fault, in Less Than P would be barred, in Greater Than P would have claim

ASSUMPTION

OF

RISK

A. Voluntarily encountering a known risk 1. If D can prove that P was aware of risk and voluntarily encountered, then we treat as we would comparative negl. B. Two types 1. Expressed a. Sign a written waiver b. You cant recover, it is a complete bar 2. Implied a. Shown by peoples conduct b. Can apportion fault c. Reduce the amount of recovery by whatever percentage a jury thinks is appropriate

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