I. OVERVIEW: TYPES AND THEORIES OF LIABILITY A. FIVE FORMS OF LIABILITY FOR PHYSICAL HARM 1. Intentional Harming a. Garret v.

Dailey Substantial certainty of injury here is sufficient to prove the act was an intentional harm. b. battery a nonconsensual and intentional act which leads to the harm of another without privilege 2. Negligent Harming a. Blyth v. Birmingham Waterworks Court holds that there is no negligence if there was no foreseeability of this damage or harm. b. Hand formula Judge Learned Hand, 1947 case involving barge that slipped mooring. This formula determines negligence. B < PL B burden of preventing injury P probability of injury occurring L gravity of the injury If B is less then Plaintiff times L then there is negligence, this is limited because many things are not quantifiable, although this is helpful with industrial cases. c. Cost Benefit Analysis best evidenced by the Hand Formula 3. Vicarious Liability a. master is not subject for the liability for the torts committed by the servant unless: -the master intended the conduct or the consequences - the master was negligent or reckless - the conduct violated a non-delegable duty of the master - the servant purported to act or speak on behalf of the princ b. master controls the duty of the servant and the means and conduct by which duties will be fulfilled c. servant all performance is directed solely by the master d. independent contractor not controlled by the master, nor subj to the others rights, may or may not be an agent. e. Kohlman v. Hyland Foreman takes different route, gets into accident. Held, workers should be expected to take different routes -Was the worker furthering his masters business at the time of the tort? 4. Strict Liability a. no matter how careful, the is liable, this theory of liability is limited to ultrahazardous activities and dangerous animals b. Exner v. Sherman Power Construction Dynamite explosion injures sues, held, no negligence but certain activities are so dangerous that the owner of the business becomes an insurer. c. Liability will ONLY arise if the injury is caused by the hazard. d. this is liability without negligence. II. BASIC TORT CONCEPTIONS: INTENTIONAL WRONGS

A. BATTERY: ANATOMY OF AN INTENTIONAL TORT 1. Harm a. battery protects the physical integrity and dignity of the person but only against harmful or offensive contact that is deliberately inflicted b. White v. University of Idaho Prof. touches girl, causes injury. There was no intent to harm, but intent to act (touch) is sufficient for intentional torts, this without consent is battery. Broadens liab. c. Ellis v. DAngelo 4 year old held liable for injuries after she pushes one to the ground. No knowledge that the act is wrong is needed, need only state of mind for COMMISSION of the act. d. Beauchamp v. Dow Chemical Co. Employee works with agent orange and is injured. Need not intend harm, substantial certainty will suffice for cause of action. Intent
Malice - - purpose (to injure) - - - subl certainty - - substantial likelihood - - recklessness - - - negligence

intent

negligence

2. Offense a. conventional would the contact offend a reasonable person? b. critical/prescriptive Should contact offend a reasonable pers? c. Fisher v. Carousel Battery can extend to objects attached to a person. Prove objective offense. d. Jones v. Fisher Womans dentures forcefully removed. Dmgs are punitive and held, but lowered as these were excessive. This was an offense of dignity. 3. Consent a. an otherwise harmful or offensive contact, deliberately inflicted is not a battery if the has consented to that contact. b. presence of consent inferred from conventional meaning of s conduct, consent is outward manifestation (appears to a reasonable person) c. content of consent objective what would a reasonable person believe that they have consented to? -this is subject to the conventional/critical prescriptive tests for content
Effective: cb: presence & (objectively found) Rule: 1. Actual Knowledge 2. Freedom of Choice How Communicated: Express Vitiated Scope Exceeded Ineffective content (scope) (objectively combo of convention and prescription)

Manifest -implied (OBrien) -presumed -imposed

Withdrawn (state v. Williams) Prohibited -incapacity (Kingston) -coercion -mistake/fraud

d. there is no liability where consent is effective e. Obrien v. Cunard Steamship consent can be implied by the actions of the . f. Wright v. Starr has the burden of proof for consent. Woman consents to kissing, claims sexual battery for sex. This raises the importance of scope of consent in relationships. g. Markley v. Whitman injured by boys rushing each other. If he was playing then this is not actionable as he consented. h. Elkington v. Foust Girls consent to molestation when she is a minor is irrelevant as was incapable (because of age) of giving it. i. Kennedy v. Parrot Doctor does addtl surgery. Sued for exceeding scope of consent, held, doctor can make decisions based on sound medical experience without express consent. (1956) 4. Self-Defense a. important is proportionality of action, use of potentially deadly force against the can equal use of deadly self defense b. affirmative defense so bears the evidentiary burden c. subjective standard jurors consider the actual person in their situation and circumstances and then consider reasonableness of behavior. (battered woman) d. objective standard jurors consider a hypothetical ordinary reasonable man in that position. (Hattori) -reasonableness in: belief of imminent danger, decision to use force e. Fraguglia v. Sala grabs a pitchfork during argument. attacks injuring him badly. The self defense force must be proportional and this is a Q for the jury. f. Hattori v. Peairs Fear is not enough for self defense. This fear must be reasonable. This is quintessential objective standard. g. State v. Leidholm Battered wife stabs husband while he sleeps. Subjective standard used for jury instruction. Reasonable woman in this position considering all the circumstances even physical. i. Cusseaux NJ Sup. Ct. creates actionable tort for batt. woman, a continuing tort with no statute of limitations 5. Other Privileges a. People v. Young Man aids another being arrested by a plain clothes officer. If the man being arrested had no right to defend himself then neither does the third party. B. PERSONAL HARM WITHOUT PHYSICAL IMPACT 1. Assault a. assault (the accused) acts intending to cause a harmful or offensive contact with the person of the other or a third person,

or an imminent apprehension of such a contact, and (2) the other is thereby put in such imminent apprehension (Restatement 2d 21) b. Read v. Coker Objective standard of assault, would a rsnbl. person have this fear? There must also be an awareness of the potential harm. c. State v. Barry holds a rifle at someone who is not looking. Held, not an assault, the must be aware of the actual event that is supposed to have put him into apprehension. 2. Infliction of Emotional Distress a. Intentional Infliction of Emotional Distress (1947) Act by amounting to extreme or outrageous conduct, with intent or disregard for the possibility of IIED, causation (causing the harm) and damages (which remain difficult and highly subjective.) b. State Rubbish Collectors v. Siliznoff IIED breakthrough case. This is a subj. tort, and also intentional. Obj. standard for the jury would this behavior be considered extreme or outrageous? c. Eckenrode v. Life of America Bad faith business practices can equal outrageous conduct for an IIED case. Exploitation due to an imbalance of power between the parties. d. GTE Southwest v. Bruce Pure IIED claim. Prolonged outrageous behavior. Vicarious liability as in scope of job. e. Brower v. Ackerly No case for annoyance, inconvenience, or normal embarrassment. f. Miller v. Willbanks Sup Ct. held, mental suffering resulting from particularly outrageous behavior can be judged by layperson. II. THE NEGLIGENCE SYSTEM A. THE RISE OF CLASSICAL ACCIDENT LAW 1. The Emergence of Fault a. Negligence duty, breach of duty, actual cause, proximate cause damages b. The Nitro Glycerine Case Negligence breakthrough, no one is liable for unavoidable accident. They had no duty to inspect the package because the harm was no foreseeable. 2. The Contest Between Negligence and Strict Liability a. fault liability - people should be held accountable for harms which flow from their wrongful agency. b. strict liability people should be held accountable for harms which flow from their purposeful activity, from their agency, wrongful or not. (Not accepted in the US in this form.) c. Rylands v. Fletcher Strict liability in England. America does not adopt this way. Issues of fairness to be considered. d. Losee v. Buchanan No liability for inevitable accident, or for any accident which ordinary human care and foresight could not guard against. (Express rejection of Rylands v. Fletcher by US) B. REASONABLE CARE: GENERAL CONSIDERATIONS 1. Costs and Benefits

a. What sort of analysis tells us whether an actors conduct is unreasonable or reasonable, negligent or not negligent? b. Reasonable care requires striking a balance betweens ones own interests and the interests of others. (Also Hand Formula) c. Chicago Burlington Railroad v. Krayenbuhl Simple cost and benefit analysis. B is greater than PL so std of care is breached. d. Restatement Basic Principles of Negligence Determining if Reasonable Care was used by : i. foreseeable likelihood that it will result in harm ii. the foreseeable severity of the harm that may ensue iii. burden that would be borne by the person and others if the person takes precautions that eliminate or reduce the possibility of ha. e. Davis v. Consolidated Rail Corp B < PL determines std. of care, this breach was the proximate cause of the harm, so liability. f. Snyder v. American Assc. of Blood Banks As an informed and quasi governmental agency, they were held to a higher standard than a reasonable person in determining duty to the . g. NNV v. AABB Courts should defer to the agency rather than assign liability with a retrospective view of the situation. The std. of care they assigned was appropriate at that time to them. h. Restatement 2d Negligence is conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm. i. Reasonable man unless the actor is a child, the std. of conduct to which he must conform to avoid being negligent is that of a rsbl. man under like circumstances. j. Unreasonableness Where an act is one which a rsbl man would recognize as involving a risk of harm to another, the risk is unreasonable and the act is negligent if the risk is of such magnitude as to outweigh what the law regards as the utility of the act or of the particular manner in which it is done. k. Factors in determining Utility: i. social value law attaches to interest being advanced ii. extent of chance that interest will be advanced iii. extent of chance that such interest can be adequately advanced by a different mode of conduct 2. Determining Duty a. duty negligent, and proximate cause of injury, the is not liable if the court determines the owes no duty to the . b. Van Skike v. Zussman Creation of duty requires more than a mere possibility of occurrence. Duty needs to be defined to state a cause for action. c. Lugo v. LJN Toys Inherently dangerous nature of toy creates a reasonably foreseeable risk and creates a duty in the manufactur. Even a reasonably foreseeable risk does not automatically create

a duty, if that duty is outweighed by public policy or too great a burden is imposed on the . d. Stagl v. Delta Airlines Property owner has a duty to protect someone on your land even against the negligent acts of a 3d party. e. Lugutu v. CA Highway Patrol Driver pulls to median, accident ensues. A person has a reasonable duty of care for himself and also to not create an unreasonable risk of harm for another. 3. Objective or Subjective Assessment a. the law is largely objective in its assessment that is an ordinary person in all aspects in those circumstances b. subjective reasonable person who has some of the particular capacities and traits of the . c. Vaughn v. Menlove Rick burns causing damage to two houses. Ignorance is no excuse to duty (No subj std.). The reasonable care standard cannot be lowered case by case. d. LaMarra v. Adam This class had a lower duty of care, but they fell below this. They cannot be guilty of negligence, but their std. was a reckless one and they consciously disregarded a known risk and created an unreasonable risk of bodily harm. e. Myhaver v. Knutson Special emergency doctrine allows jury to consider reasonable care in light of special circumstances. This is not conclusive but rather a rebut to std. of care. f. Public Service of NH v. Elliot Argument from for a higher std. because had better knowledge of hazards of electricity than the average person. Still reasonable person std is employed. i. Restatement 2d allows probative evidence of knowledge to lower the standard of care in those circumstances g. Disability Restatement 2d reasonable person with the same physical or mental disability h. children children are held to the std. of a similar child of like age and like mental capacity i. a child std. may be rejected if the child is involved in an adult activity ex. driving a boat Dellwo v. Pearson i. Williamson v. Garland A child can be guilty of cont. neg. if he breaches the std. of the reasonable child of like age and ment. cap. j. Wright v. Tate Through cont. neg. the man voluntarily waived his right to a reasonable care level, so no collection for wrongful death. He reasonably knew he was exposing himself to risk. C. STANDARD OF CARE AND PROOF OF FAULT 1. Customary and Professional Standards a. Standard of Care must be determined analyzing case facts By proving adherence to some std. the shows due care. b. customary standards have weight, not conclusive c. professional standards usually conclusive, reasonable care for a professional is that degree of care and skill ordinarily

exercised by qualified members of the profession. d. Titus v. Bradford Railroad Co. Whether or not there is a better alternative an employer cannot be negligent if he is doing what is commonplace for the industry. (Largely changed today) e.The TJ Hooper Hand states that the industry std. is wrong, and that is because the ind. std. fell below that of a reasonable person. This alters the conclusive nature of the ind. std. at the time. f. professional malpractice - negligent breach of professional std. g. Stepakoff v. Kantar Pro. std. for psychiatrist upheld. He must only act up the level of the reasonable psychiatrist. In this case the standard was shown that one does not warn of suicidal thoughts. h. Powell v. Catholic Medical Center Professional std. does not excuse an actor from using reasonable care. (Presumably lower std i. Rossell v. Volkwagen The nature of the position of these engineers is not enough to establish them as having a pro. std. and thus they breached the standard of the reasonable person. Public policy is not best served by this profession creating its own stds. Only those which would protect publics interest are allowed. j. Vegara v. Doan Modified locality doctrine rejected as std., but seen as a factor in determining std. of care. k. Riggins v. Mauriello Doctor cannot be neg. for good faith choice. l. Welsh v. Bulger Professional std. can apply to the adminis. of the hospital in this corporate negligence case. is helped as the professional std. is higher than the reasonable person and these admins. were in a position to know the faults of the hosp. m. Petrovich v. Share Health Plan Vicarious claim against HMO is allowed to go forward because they exercised sufficient control over their employees. n. Informed Consent gone beyond medical battery to protect the patients right to medical self-determination. i. medical standard clearly objective, what is necessary to disclose to the patient? What is prudent to tell patient? ii. patient standard Subjective, power of patient and and his right to self determination. What does this partic. patient need to know to decide? o. Blanchard v. Kellum This is case of medical battery and not informed consent. There is a difference between cases in which there is uninformed consent those where is no consent at all. i. Determining a medical battery: -Was the patient aware that the doctor was going to perform the procedure? -If so, did the patient authorize performance of the procedure? p. Cobb v. Grant Dr. must give all the info. that is relevant to a meaningful decision. (Exceptions are children, unconscious, and

the incompetent) q. Ashe v. Radiation Oncology This is the patient std., a rsbl. person in the patients position would have consented to the proc. in question if adequately informed of all significant dangers. r. Culbertson v. Mernitz Medical std. Doctor standard upheld. Did the dr. give the info. that a reasonably prudent physician would give to a patient? s. Helling v. Carey BPL succeeds, the TJ Hooper of pro. std. The std. is far to low considering the cost/benefit analysis. 2. Statutory Standards: Negligence Per Se a. negligence per se - if an actor violates a pertinent safety statute, and the violation causes an injury the fact of the violation --per seconclusively establishes the actors negligence. b. Martin v. Herzog Both parties guilty of neg. per se, but which one caused the actual harm, because causation is part of neg. per se Cont. neg. bar if neg. is found. c. Schooley v. Pinchs Deli Market was of the spec. class of people who was to be protected by the law preventing the underage sale of liquor. For the . d. Pelkey v. Brennan Claim barred because law is not created to prevent this particular harm. (pertinent safety statute) e. Snapp v. Harrison has the burden to prove that he was within the class that is protected by the statute. f. Tedla v. .Eliman Statute was not intended for them to risk a greater harm. The court takes neg. per se and applies to a rebuttable presumption of breach of standard of care. This was rebutted here by showing that adherence to statutory std. of care was below the reasonable person std. of care. Increased risk. g. Bauman v. Crawford Neg. per se as evidence, not conclusive for children. Concurrence argues that this should be done across the board and have neg. per se simply be evidence of neg. and not a conclusive proof of breach of statutory std. of care. h. Gore v. Peoples Savings Bank There should be room for excuse or justification for neg. per se claims. (This evidences the full erosion of the classical neg per se conclusiveness) i. Krebs v. Rubsam may have broken the statue, but did he know or should he have known that there was a violation? Now, the court is requiring some intent, or implied intent to break the statute you must know of it, or should know of it. 3. Proof: Res Ipsa Loquitur a. res ipsa loquitur inference of specific negligent breach on the part of the which the must rebut i. accident doesnt normally happen w/o neg. ii. the was in exclusive control of the instrumentality that caused the accident

iii. the was not responsible for causing the accident b. Thompson v. Frankus Circumstantial evidence supports a theory of specific breach. c. Newing v. Cheatham RIL affirmed, plane crash, must show that they had no responsibility in the accident. RIL deals with probabilities and not certanties. d. Inference of Presumption - cause of action stating three elements of RIL makes an inference, evidence brought to support these makes a presumption which must rebut e. Foster v. City of Keyser - R. 2d. Accepted. Multiple s can exist in RIL case. f. Ybarra v. Spangard while under anesthetic is injured. No one claims responsibility and not one can be proved guilty. Held, multiple in RIL, all had exclusive control and all must rebut the presumption of negligence. D. THE DUTY OF CARE: SPECIAL RELATIONS AND STATUSES 1. Classic Conceptions: No Duty to Act a. No Duty to Act Doctrine natural and legal persons who are not legally responsible for putting a victim in peril, have no duty to act to protect the victim from that peril. We have a gen. duty not to put strangers at unreasonable risk of injury, but no general duty to protect strangers from perils for which we are not legally responsible. b. malfeasance acting badly, misfeasance doing the right thing and screwing it up, nonfeasance not acting at all, omitting c. Union Pacific Railway v. Cappier injured across tracks, no neg on . s neg did not cause accident then he owes no duty to the . d. Hurley v. Eddingfield Doctor is sent for and he refuses to go. Held, doctor has no duty to be forced to practice under terms he does not accept. 2. Modern Conceptions a. Modern No Duty Doctrine same general rule of no duty, but with several distinct exceptions: i. rescuer assumed, explicitly or implicitly, a Kual duty to rescue the victim ii. victim is in the rescuers custody and thus without access to alternative rescuers (inmate or person in mental hosp.) iii. victims peril caused by the putative rescuer himself even if he has caused this non-negligently b. L.S. Ayres Co. v. Hicks Boys fingers in escalator, injuries aggravated by them not shutting down the escalator. Held, the boy was an invitee and the injury was caused by the s negligence. The relationship was sufficient to impose a legal duty to act on . c. Szabo v. Penn. Railroad If he is rendered helpless, dictates of

humanity and duty require him to put within reach medical care and other assistance. This duty arises with emergency and expires with it. This duty is imposed when the employee is at work for the master. d. Folsom v. Burger King There was no special relationship between the security co, , and the to impose a duty. The voluntary rescue doctrine does not apply. i. voluntary rescue doctrine makes situation worse: -increasing the danger -misleading the into believing danger had been removed -depriving the of the possibility of help from other sources e. Lacey v. United States Coast guard is immune from voluntary rescue doctrine in this case. The did not show that other wouldbe rescuers were thwarted or discouraged from attempting to aid. f. Dudley v. Offender Aid and Restoration of Richmond If you take custody of a 3d person and you should know or know is poss. harmful to others then you owe a duty to a person who gets injured i. custody well known exception to no duty justified by the dependence of the person in custody on the care and protection of the party with the custody. Custody cases may also create a duty to protect unnamed third parties. g. Mirand v. City of NY Children at school are under the custody of the school, so the school has duty. h. Coghlan v. Beta Theta Fraternity College students are not in the custody of the university so the university has no duty. i. control last and broadest exception to no duty doc. i. J.S. v. R.T.H. Knowledge or constructive knowledge can equal duty. Particularized knowledge, special reason to know that a particular would suffer a particular type of injury. Control. j. Thapar v. Zezulka Mental Patients privilege is more important Dr. had no duty to inform the police or family of patients suicidal tendancies. 3. Variable Duty: Landowners a. duty is an especially prominent part of premises liability law because the concepts and categories of the law of real property are available as an alternative to the concepts and categories of tort b. Classical premises liability classification: i. trespasser uninvited person without permission, you owe no duty, as long as you do not willfully or wantonly injure them ii. guest/licensee friend often, you have a duty to disclose concealed dangers, they take property as is (also owed what is owed to the lower trespasser, duties are cumulative) iii. invitee reasonable care standard of care is owed

c. Basso v. Miller No statuses determinations. Property must be reasonably safe for all. Status is no longer conclusive. Purposes on the land are still factors which will be considered in est. a duty. d. Boyette v. Trans World Airlines Distinctions of classes used factors in determining standard of care. The trespasser was owed no duty. e. open and obvious risks problematic for premises liability in the modern sense- the classical doctrine held that a risk that was open and obvious had no duty to take further precautions against it The openness and obviousness of it gave ample warning, and shift. the burden of care to the entrant on the property. Does comp. neg. allow for this type of an doctrine? i. Some argue it goes towards determining duty of so it comes before comparative neg. is ever reached. f. Schindler v. Gales - Sum. judgment should not be granted if the was less than 50% liable, since this a 50/50 jurisdiction. Open and obvious is not a complete bar to prima facie negligence claim. E. BASIC DEFENSES: VICTIM CONDUCT AND CHOICE 1. Contributory Negligence a. 50/50 Jurisdiction If s cont. neg. rises above 50% then that CN works as a bar to recovery. b. Pure contributory neg. no limit to cont. neg. 2. Comparative Fault a. Comparative Fault the nature of the conduct and the causal relationship of the conduct to the harm. 3. Assumption of Risk: Classical Doctrine a. Classical Doctrine - The basic premise of assump. of risk is that the person who is aware of the risk and knowingly decides to encounter the risk then he accepts liability 4. Modern Conceptions a. Assumption of Risk i. express Did expressly assume risk? (Yes = bar) -consent must be freely given - must clearly accept the risk which could lead to this particular harm -this type ii. primary implied Did assume risk inherent in activity (Yes = Bar) or No Duty Did breach a duty not to engage recklessly in iii. Merger Secondary Implied -Did reasonably encounter a known risk? -Did unreasonably encounter a known risk? b. assumption of risk voluntary and knowing assumption of

apparent risks. c. Inherent Risk a risk is inherent in a sport if its (elim) would i. chill vigorous participation in the sport and ii. alter the fundamental nature of the activity d. Firefighters Rule police and firefighters may not recover for harms resulting from the call that brought them there, neg. outside the reason for the call is recoverable e. Express Assumption of Risk these will not be enforced if they go directly against public policy. F. CAUSATION OF HARM 1. Actual Clause a. but-for causal test b. substantial factor where several causes concur to bring about an injury, and any one alone would have been sufficient to cause the injury it is sufficient if s conduct was a subtl factor in causing an injury. c. Did the s neg cause s injury? 2. Loss of Chance and Other Probalistic Harm a. Probalistic Harm i. negligently created a hazard ii. identifiable pop. group at increased risk iii. member of that group develops a condition consistent with the increased risk iv. the consistency having been identified by factors 3. Multiple Causation a. one indivisible injury necessary for multiple causation b. one can pay for the c. multiple causation two or more breaches of a duty of care combine to inflict a single, indivisible injury on a victim 4. Joint and Proportionate Liability a. pro rata b. indemnity c. contribution i. unavailable to intentional tortfeasors G. EXTENT OF LIABILITY: RISK AND RESULT 1. Foresight and Hindsight 2. Special Problems and Superseding Causes a. Wagner v. International Railway Danger invites rescue, the wrongdoer may not have foreseen the coming of a deliverer. He is accountable as if he had. Continuity in chain of events is not defeated by volition. It is enough that the act, whether impulsive or deliberate, is the child of the occasion. b. McLaughlin v. Mine Safety Appliances Held, the jury could find that the third party was negligent in his intervening act and thus this could insulate the from liability. Dissent This is basic tort law- should reasonably foresee that his warning

could go unheeded.