BATTERY 1) Intent  harmful or offensive contact 2) Harmful or offensive contact results ► RST or White v. U. of Id. approach?

• Eggshell Plaintiff Rule (Vosburg) TRESPASS • To Land: Harm is not required • To Chattels: Harm is required NECESSITY • Necessity gives privilege to use land • Conditional Privilege - liable for harm

THE REASONABLE PERSON • Objective standard. Ordinary person • Lower standard for children ◦ But, not when doing adult activities • Insanity a defense if ◦ Lack of control or understanding of duty, AND ◦ Lack of forewarning • Disability lowers standard to reasonable CAUSE-IN-FACT person with that disability (Fletcher) • “But for” Δ’s conduct, what happens? CALCULUS OF RISK • Burden shifts to Δ if lack of proof due • Burden < Probability x Severity to Δ’s negligence (Lone Palm Hotel) CUSTOM • Relevant & persuasive, not dispositive • Increased chance of harm - Δ liable if: ◦ Act wrong b/c it ↑ chance of harm • Departure from custom can show neg. ◦ AND, that type of harm occurs ◦ Same for Δ’s private rules of conduct • Joint Liability - All Δs fully liable if: • Dispositive in medical malpractice ◦ Joint tortfeasors • Doctors: Duty to inform Π of risks if ◦ 2 independant tortfeasors, harm indiv knowledge would affect his decision ◦ 2 subsequent torts, harm indivisible STATUTES/REGULATIONS • Lost chance of survival (Herskovitz) • Negligence per se if ◦ Law designed to protect against type • Alternative Liability (Summers) • Market Share Liability (Sindell) of harm that occurred, AND ◦ Π in class of people protected by law PROXIMATE CAUSE • Three views • Defenses: Necessity and Capacity 1) Harm within the risk (fseeability) • Two ways of predicting result 2) Causal connection ◦ Legislative history, or does violation 3) Policy judgment (Andrews) of law increase risk of harm to Π • For proximate cause • Courts liberal in interpreting purpose • Compliance with law relevant, not disp. 1) Must increase risk of harm, AND 2) Harm must be within the risk RES IPSA LOQUITUR This test is sufficient but not necessary 1) Event usually doesn’t occur w/o neg. • Intervention of 3rd parties 2) Cause within exclusive control of Δ ◦ Liability only if ordinary and natural 3) Not due to voluntary act of Π • Shifts burden to Δ for circum. evidence • ◦ 3rd party act must be foreseeable ◦ Usually for neg., not for int. torts “Smokes out” evidence w/ multiple Δs • Foreseeability of rescue, Π’s reaction • Four Categories of Unforeseeability CONTRIBUTORY NEGLIGENCE ◦ Extent of harm: Δ liable (eggshell Π) • Affirmative defense, burden on Δ ◦ Manner of harm: Δ liable (Nugent) • Excuse for private necessity · Waters must become placid again • Harm must be within the risk (causal) ◦ Plaintiff: Δ not liable (Palsgraf) COMPARATIVE NEGLIGENCE ◦ Type of harm: Fork! Factors • Comp. negligence, NOT causation · Directness of harm • Pure or Modified · Degree to which it resembles an ASSUMPTION OF RISK unforeseeable type or extent • Primary: Δ breached no duty, not neg. · If Δ’s negligence caused other harm • Secondary: Unreasonable, Π is ContN for which he is liable, thereby not • Waiver: Tunkl factors (see reverse) totally clearing him from liability • Reasonable assumption: fork fork!

DUTY TO RESCUE • No duty to rescue, unless law imposes, special relationship, or if Δ caused the harm (even if non-negligently). SPECIAL RELATIONSHIPS • Generally, no duty to control 3rd party • Exception: Exclusive control of Δ, e.g. landlord (Kline). Must be foreseeable • Exception: Necessary to avert danger ◦ Target IDed by 3rd party (Tarasoff) ◦ Δ facilitated commission of crime ◦ Δ breached promise to warn Π (Long) LANDOWNER LIABILITY • Traditional Categories ◦ Invitees: remove traps ◦ Licensees: warn of traps ◦ Trespassers: don’t set traps • Rowland Factors (see reverse) • Attractive Nuisances (see reverse)

EMOTIONAL HARM • Impact Rule: Physical harm required • Zone-of-Danger Rule: Π must be in zone of danger of being harmed by Δ • Closely Related Bystander (Dillon) 1) Π located near accident (proximity) 2) Π witnessed accident (visibility) 3) Π and victim closely related ECONOMIC HARM • No liability except spec. relationship, public nuisance, intentional harm • Each piece of harm must be fseeable PAIN AND SUFFERRING • Cognitive awareness required? • Goals, commensurability, etc. PUNITIVE DAMAGES • Malicious intent necessary • BMW v. Gore – Three Guideposts 1) Reprehensibility of Δ’s conduct 2) Disparity b/w harm & pun. award 3) Diff b/w award & civil penalties • Multiplier can’t exceed single digit STRICT LIABILITY • Key: Uncommonness, dangerousness • Natural vs. Unnatural, acts of God • Harm must also be foreseeable ABNORMALLY D. ACTIVITIES • See outline for RST’s factors • Social utility as a consideration? VICARIOUS LIABILITY • Int. torts: “characteristic to workplace” • Scope of Employ: Detour vs. Frolic • Independent Contractors ◦ Apparent and Implied Authority PRODUCTS LIABILITY • Manufacturing Defects: Π must show (1) It departed from intended design (2) It caused injury • Failure to Warn: Foreseeable risks could have been prevented by warning Design Defects • Consumer Expectations Test: Product defective if it fails to perform as safely as a consumer in Π’s position would reasonable expect it to ◦ Allows Open & Obvious exception • Risk-Utility Test: Product defective if benefits of design outweighed by costs ◦ Must Π show reasonable alternative? ◦ Halliday: Test not used for gun ► Which test will court use? (or both?) • Foreseeability of harm, not intended use, is what matters (Volkswagen) • Wade’s Unreasonable Dangerous Factors (see reverse) • RST Comments (see reverse) Federal Preemption • Nature of duty: Floor vs. ceiling

TERRY: 5 FACTORS OF NEGLIGENCE 1) The magnitude of the risk. 2) The value or importance of that which is exposed to the risk, which is what law seeks to protect 3) The value of what the person taking the risk is pursuing 4) The probability that it will be attained by the conduct which involves risk (utility of the risk) 5) The probability that it would not have been attained without the risk (the necessity of the risk) RST § 339: ATTRACTIVE NUISANCE Landowner liable for harm caused by artificial conditions if: • Owner knows or has reason to know children are likely to trespass, AND, • Owner knows or has reason to know condition involves unreasonable risk of harm, AND • Children, because of their age, won’t realize the risk, AND • Burden of eliminating danger slight compared to risk to children, AND • Owner fails to exercise reasonable care to eliminate danger or protect children Note: Most courts do not apply this to natural conditions ROWLAND FACTORS • Foreseeability of harm (breach) • Degree of certainty of harm (damages) (causation) • Closeness of connection b/w Δ’s conduct and Π’s harm • Moral blame of Δ’s conduct (fairness) • Prevention of future harm (deterrence) • Consequences to Δ and community by imposing duty • Availability and cost of insurance (compensation) FACTORS FOR MARKET SHARE LIABILITY • All named Δs are potential tortfeasor • Harmful products identical, share same qualities (fungible) • Π unable to identify particular Δ who caused her harm through no fault of her own • Substantially all manufacturers who created product during relevant time are named as Δs BMW v. Gore: Degree of Reprehensibility of Δ’s Conduct • Harm is physical as opposed to economic • Conduct evidenced indifference or reckless disregard for human health and safety • Target of conduct has financial vulnerability • Conduct involved repeated actions, not an isolated incident • Conduct was the result of intentional malice, trickery, or deceit, instead of just a mere accident § 520: ABNORMALLY DANGEROUS ACTIVITIES a) Existence of a high degree of risk of some harm to another person or his property b) Likelihood that the harm that results will be great c) Inability to eliminate the risk by the exercise of reasonable care d) Extent to which activity is not a matter of common usage e) Inappropriateness of the activity to the place where it was carried on f) Extent to which its value to the community is outweighed by its dangerous attributes ► RTT scraps social utility (f) as a consideration.

RST COMMENTS ON PRODUDCTS LIABILITY f) Seller must be in the business of selling. Does not apply to the occasional seller g) Must be in defective condition when it reaches buyer, not by subsequent acts h) Seller not liable if injury results from abnormal handling i) Product must be unreasonably dangerous. Must be dangerous to an extent “beyond that which would be contemplated by the ordinary consumer who purchases it” j) Seller must give warnings for dangers that are not generally known and recognized. If warning given, and product is safe if followed, it isn’t unreasonably dangerous k) If product is unavoidably unsafe, but prevents a greater harm (e.g. a rabies vaccine), it is not defective or unreasonably dangerous. Seller not liable n) ContN of Π is not a defense, but if Π sees danger and unreasonably continues use, this is an assumption of risk, and is a defense. If Π discovers a defect and continues unreasonably to use the product and is injured, he’s barred from recovery ◦ Note: Although RST took no position on bystander’s recovery, law now allows it FACTORS IN RISK-UTILITY TEST • Gravity of danger posed by challenged design • Likelihood such danger would occur • Mechanical feasibility of a safer alternative design • Financial cost of an improved design • Adverse consequences to product and consumer that would result from an alternative design Unreasonably Wade’s Factors in Determining if Product is Dangerous • Usefulness and desirability of the product – utility to user and public as a whole • Safety aspects of the product – likelihood it will cause injury, probable seriousness of injury • Availability of a substitute product that would meet the same needs and not be unsafe • Ability to eliminate unsafe trait without impairing usefulness or making it too expensive • User’s ability to avoid danger by exercise of care in use of the product • User’s anticipated awareness of dangers inherent in the product (general public knowledge) • Feasibility of manufacturer spreading loss by setting price or carrying insurance TUNKL FACTORS (for voiding liability waivers) • Business generally though suitable for public regulation • Importance of Δ’s service to the public • Δ holds itself out as willing to provide service to any member of public who seeks it • Essential nature of services gives Δ great bargaining strength • Public faced with adhesion contract; cannot pay reasonable fees for negligence protection • Purchaser placed under Δ’s control, subject to risk and carelessness by Δ

Sign up to vote on this title
UsefulNot useful