`Torts I.T. R W&W GN N S.

L |--------------------------------------------------------------|--------------------------------------------| Intentional unreasonable High fault less fault no fault Abnormally dangerous animal Activity Products Liability Punitive dmg ± for Gross Negligence and up. INTENTIONAL TORT a) Act, Intent, Causation, Injury b) If one of them is not met, D can get the case dismissed. c) P has burden of preponderance of evidence throughout trial Procedural Complaint: motion to dismiss Discovery: motion for summary judgment Trial: Motion for directed verdict After trial: Motion for JNOV PART 2: FAULT-BASED LIABILITY FOR PHYSICAL HARMS § 1. BATTERY  A person is subject to liability for battery when he acts intending to cause a harmful or offensive contact in the time and place the contact occurs, and when such contact results.  Offensive contact occurs when a contact offends a reasonable sense of personal dignity.  RS(13): an actor commits battery if (a) he acts intending to cause a harmful or offensive contact with the other or a third person, or an imminent apprehension of such a contact, and (b) a harmful or offensive contact with the person of the other directly or indirectly results.´ Damages Punitive, compensatory, and emotional distress damages. 2. INTENT  Purpose or Substantial Certainty. The intent for the commission of a battery is present when the person acts, with purpose, or knowing with substantial certainty, that the harmful contact (at the time and place) will occur. Negligence Negligence is conduct that creates an unreasonable risk of harm. Reckless, willful and wanton conduct

B.

C.

Wilful or wanton conduct is a course of action which shows actual or deliberate intent to harm or which, if the course of action is not intentional, shows an utter indifference to others. (Hybrid btw N and IT.) 2. Reckless act occurs when a person¶s conduct creates a known risk that can be reduced by relatively modest precautions. D. Mental conditions doesn¶t excuse intent Dual intent: 1) intent to act; 2) intent to injure (offensive contact) Transferred intent: if a person intended to inflict serious bodily injury while trying to hit another person, but missed and accidentally hit someone else instead, such intent is transferred to the actual victim. F. Extended liability D who commits intentional tort is liable for all damages caused, not merely those intended or foreseeable. G. Vicarious liability for children -- Parents generally not responsible for tort committed by children. -- Exception: occurs when parent knew child¶s dangerousness and didn¶t stop him. § 2. ASSAULT Definition Act intending to cause a harmful or offensive contact with the other person or an imminent apprehension of such contact. The apprehension must be one that would normally be aroused in the mind of a reasonable person. The tort is complete with the invasion of the plaintiff¶s mental peace. A. Some words negate intent. e.g. ³If the police wasn¶t here, I¶d punch your nose´ negatives intent. B. Offering a choice of tortious alternative is still an assault. § 3. FALSE IMPRISONMENT (AICI) a. Definition Act intending to confine, and confining another within boundaries fixed by the actor and the victim was either conscious of the confinement or harmed by it. b. The threat of physical force, or a claim of lawful authority to restrain, is sufficient to show confinement in an action for false imprisonment. E.

§ 4. TORTS TO PROPERTY A. TRESSPASS TO LAND Definition  Intentional entry upon land of another, either by personal entry or intentionally causing an object to enter the land.  3~4 Part test: act, causation, injury + intent  Intent need not be to trespass. Mere intention to enter land is enough.  Nuisance: an interference with his use and enjoyment of property. Not TP.

Extended liability: liable for damages inflicted even if he never intended harm and could not foresee.  Cat hypothetical. Throws rock to cat, breaks neighbor¶s window. Liability depends on the intent to enter. B. CONVERSION OF CHATTEL (Theft/Trover) IT Definition  Exercise of substantial dominion over another¶s property.  Intent need not be that defendant be conscious of wrongdoing.  Difficult issue is what constitutes substantial dominion.  Factors: (a) extent and duration of control; (b) defendant¶s intent to assert a right to the property (c) defendant¶s good faith (d) the harm done (e) expense or inconvenience caused. C. TRESSPASS TO CHATTEL  Less than conversion, but still substantial.  Liable only if there results in harm to the owner¶s materially valuable interest in the physical condition, quality, or value of the chattel, or if the owner is deprived of the use of the chattel for a substantial time.  4 Part test: act, causation, injury, intent.  Intention: must act with the intention of interfering with the property or with knowledge that such interference is substantially certain to result. D. Discipline  Parents, teachers, school bus drivers enjoy a privilege to discipline, and to use force and confinement to do so. 

CHAPTER 4 DEFENSE TO INTENTIONAL TORT - PRIVILEGES § 1. PROTECTING AGAINST THE APPARENT MISCONDUCT OF PLAINTIFF

A. SELF-DEFENSE  D is privileged to use reasonable force to defend against threat of imminent assault, battery or confinement.  Self Defense is effective based on objective appearance = Not required that P had intention. Test: 1) Reasonable person in his position would have perceived a threat that required reasonable defense. 2) Response was reasonable and not excessive. e.g. Deadly Force justifiable to prevent death or SBH. e.g. age, size, strength are relevant to reasonableness of defense. B. ARREST AND DETENTION  A merchant who has reasonable cause for believing that merchandise has been taken may detain a person for a reasonable time to deliver him to a peace officer.  RS: one who reasonably believes that shoplifting has occurred may detain the suspected individual for a time necessary for a reasonable investigation of the facts.  Detain includes pursuit, by public policy. C. DEFENSE AND REPOSSESION OF PROPERTY 

Reasonable force may be used to protect property, but not deadly force. D. DISCIPLINE  RS(2d)147: parents may use reasonable force as they reasonably believe necessary. §2. CONSENT 
Willingness for a conduct to occur. It may be expressed by words, conduct, or inaction, under conditions where such expression is reasonably understood to manifest consent. 

   

Power relations: A jailor may not claim consent as a defense for sexual misconduct with a detainee. Consent should not be an available defense when the relationship btw parties is unequal? Medical battery. Doctor exceeding the scope of patient¶s consent is battery even in life/death situations. May not apply when the doctor must act in an emergency or obtaining consent is not possible.
When it would be good surgical practice to treat it immediately rather than wait for P to regain consciousness and request consent.

«in such case the consent will be construed general in nature and surgeon may extend operation to remedy by exercise of his sound professional judgment.  STD One who knows he has STD and doesn¶t get consent.  Consent procured by fraud is battery.  Mistakes or misrepresentations about collateral matters such as price or timing do not nullify consent.  Consent to crime is ineffective because it is frequently induced by duress. §3. PRIVELEGES NOT BASED ON PLAINTIFF¶S CONDUCT (POLICY)  Arrests and searches  Public rights  NECESSITY Private Necessity: one has the privilege to interfere with the property right of another to avoid a greater harm, but must compensate the plaintiff for the interference.
Privilege can be invoked only to avert public disaster or imminent harm to D or to others. Can also be invoked to protect private property in some cases 

Public Necessity: allows the appropriation or injury of an innocent party¶s property to avoid more substantial public harm. Innocent party is not compensated.
± If the emergency arises from D¶s own fault, D would lose immunity, though P could not push D away. 

Surocco v. Geary Public vs. Private necessity The law recognizes a privilege to damage property to avert threatened disaster when necessary in exigent circumstances. Wegner v. Milwaukee Mutual The issue is whether it is fair to allocate the entire risk of loss to an innocent homeowner for the good of the public. We do not believe the imposition of such a burden on the innocent citizens of this state would square with the underlying principles of our system of justice.  



Ploof v. Putnam An entry to save life or goods in danger of being lost or destroyed is not a trespass. Vincent v. Lake Erie Transportation Co. Having preserved the ship at the expense of the dock the defendants must compensate the owner of the dock for the injury inflicted. This was not a case in which the infliction of injury was beyond the control of the defendant. Custom 

TOPIC B ± NEGLIGENCE CHAPTER 5 DUTY Prima Facie Case (1) Owing of a Reasonably Foreseeable Duty of Care under the circumstances (2) Breach of duty (3) Causation of damage (actual, proximate) (4) Injury (1) Duty       Duty to guard against reasonably foreseeable risks of injury Met when you act as reasonably prudent person in the circumstances. Plaintiff must allege a theory of breach (the story about what D did wrong) There is only one standard of RPP. Special instructions risks possibility of confusion to the jury If foreseeable danger is high, the amount of care RPP would take is greater, doesn¶t mean there is a higher standard. It is still standard of RPP. 

What impact might an emergency instruction have on the jury? D seeks use of the emergency instruction b/c it alters the normal standard of care. The court here adopted the approach used in many states, which is to view the emergency circumstances as one factor to be considered in the case, but not that requires special jury instruction.  Physical disability. RPP with physical disability  Effect of Old age. Not allowed, but RPP with cataracts can.  Effect of Physical fitness  Effect of intoxication. No allowed. You put yourself into the intoxicated state.  Effect of mental illness: same standard as that of a reasonable person under the same circumstances. For policy reasons.  The reasonable standard requires only a minimum of attention, knowledge to recognize the existence of the risk. If the actor has those qualities, he is required to exercise the qualities in a manner reasonable under the circumstances. Duty of a child  A child will be held to an adult standard of care when he engages in an inherently dangerous adult activity, such as the operation of a powerful motor vehicle. ± The inherent dangerousness depends by jurisdiction. ± Test 1) adult skills required?

2) normally operated only by adults? General Rule: Child accused of N is held to standard of care of a RP child of the same age, intelligence and experience. - A few courts still say that minors 14+ are presumed capable of N, 7~14 presumed incapable of it, ~7 are incapable. - The rule of sevens is not so common now, but most states hold very young children incapable of N (3, 5 years old) § 4. SPECIFICATION OF PARTICULAR STANDARDS OR DUTIES BREACH AS MATTER OF LAW  Judgment w/o jury, judgment by precedents ± Court concludes, on the facts, no reasonable person would find otherwise e.g. It is not negligent as a matter of law to continue driving while blinded due to oncoming headlights. Each case must be looked upon based on its own facts, and the existence or nonexistence of is for the factfinder to determine. NEGLIGENCE PER SE rule, when applied, supplants the CL standard of care.  Adopted from criminal statutes.  Statute must provide four elements to supplant CL duty. 1) Standard of conduct to meet duty 2) intended to prevent the harm caused in the case 3) a member of class designed to protect 4) violation is proximate cause of duty.  Establishes duty and breach  Designed to protect a class of persons.  When statute create whole new obligation, usually rejected by courts.  Exceptions: Negligence per se (statute) is excused and not negligent if (a) Violation is reasonable because of the actor¶s childhood, physical disability, or incapacity (b) Actor neither knows nor should know of the circumstances (taillight goes out while d is driving and before he has the opportunity to discover it) (c) Unable to comply after reasonable diligence or care (d) Confronted by emergency which is not his fault (e) Compliance would involve a greater risk of harm These exceptions are not exclusive.   Children are not subject to negligence per se rule. Some Cts only use ³per se´ rule as supplementary evidence

CHAPTER 6 NEGLIGENCE: BREACH OF DUTY § 1. ASSESSING REASONABLE CARE BY ASSESSING FORESEEABLE RISKS AND COSTS FORESEEABLE RISK ASSESSMENT Bernier v. Boston Edison co. Procedure Jury found against (Ramsdell and) Edison for negligent design and maintain. Edison appeals. Fact A collision occurred by Ramsdell(D) and Boireau(D). Ramsdell was an old

woman and lost control of the car and knocked down an electric light pole installed by Boston Edison Co. Pole struck Berniers leg and injured Kasputys was injured too. I R A Maker of product must anticipate the environment in which the product will be used P: Edison failed through N to design a pole accomodating reasonably foreseeable vehicular impacts so as to avoid pedestrian injuries -Since injuries might be serious, the likelihood of accidents need not be high to warrant careful consideration of safety features. -jury could rationally find N of design and maintenance. They could find that the vehicular speed at which N.6 would topple was grievously low, creating an unacceptable risk of grave injury to persons at the scene. US v. Carroll towing Conners sues Carroll for negligence. Admiralty court proceeding Conners Co. left their barge unattended for 21 hours. The harbor was full of vessels. The barge broke loose from the pier when Carroll towing co. employee tried to move their mooring lines. Conner¶s barge was sunk. Is the duty of care breached when defendant¶s conduct incurred a risk which could be avoid with very few precautions by P, when injury would cause a big amount of damage? If the burden of preventing the injury is lower than the product of the probability harm * and amount of harm it will cause, then there is a breach of duty of care. Here, the burden to prevent was low (watchman staying in the premises) Probability was substantial (full harbor with barges constantly moving) Expected Harm was high (sinking of barge)

P F

I

R

2. ASSESSING RESPONSIBILITY WHEN MORE THAN ONE PERSON IS NEGLIGENT 1. Comparative fault. Plaintiff¶s recovery is reduced to reflect her fault in negligence. 2. Apportionment among Defendants. 3. Joint and several liability. Plaintiff can enforce against either tortfeasor. 4. Contribution. D1 can obtain contribution from D2 to make payment proportional to its fault. 5. Insolvent or immune tortfeasors. When D1 is insolvent, joint and several liability system requires D2 to pay the insolvent¶s share. 6. Several liability and comparative fault apportionment among tortfeasors. Trier of fact makes comparative fault apportionment. No tortfeasor is liabile for more than his share.

§

3.

PROVING AND EVALUATING CONDUCT 

A.

Plaintiff must prove each element by preponderance of evidence.

PROVING CONDUCT

Satiago v. First Student Procedural Posture Facts

Issue Analysis

Holding

Appeal from summary judgment for defendant. Santiago (P), who at the time was in the eighthgrade, claimed that while she was riding home on one ofFirst Student, Inc.'s (D) school buses, she was injured whenthe bus collided with an unidentified vehicle. She could notremember the street or the neighborhood where the accident occurred; police did not respond to the accident and, consequently, there was no police report.She did not see the collision occur and was unable to offer any details about it or the respective driver's actions.She was unable to offer any witnesses capable of offering a meaningful description of the accident. Is summary judgment for defendantappropriate where P alleges negligence, but offers almost no evidence to support the claim? To assign N to D based on the evidence would cross the line from reasonable inference and venture into speculation. P is unable to prove that bus driver failed to stop at the sign, any actions on the part of either driver. No witness. P attempts to justify lack of evidence by pointing to the nature of the accident. But the difficulty in proving does not relieve the burden of presenting. Summary judgment for defendant is appropriate where a plaintiff alleges negligence, but offers almost no evidence to support the claim, so that assigning negligence to defendant would cross the line of reasonable inference to rank speculation.

Notes 1. Contradictory testimony frequently occurs, and credibility of witness is a jury question. 2. Sometimes uncontradictory evidence can be turned down by the jury. Forsyth v. Joseph Procedural Posture Facts Issue Analysis Holding Notes

Trial court found Villa to be negligent, partly b/c of excessive speed. Decedent was struck by the Villa truck. Villa skidded 129 feet before impact. Speed limit was 55 mph at the impact after skidding. So excessive speed by circumstantial evidence. D is Negligent

1. Circumstantial evidence. Often the most importance evidence in tort. 2. Inferences. If evidence is conflicting on a material point, or if reasonable persons may draw different conclusions, the question goes to the jury.

B.

PROVING CONDUCT Trial court granted summary judgment for D. Appeal from summary judgment for defendant. At the Cracker Barrel restaurant, Thoma took three or four steps away from her table. Her left foot slid out and she fell. She noticed an area 1x2 ft. containing drops of clear liquid. She claims to have slipped on the liquid. She didn¶t see anyone dropping liquid prior to 30minutes before her fall. Witness McNeal: didn¶t see customers carrying drinks, nor did he see anyone spill. Manager Gray: inspected area of the fall and saw no spills. Is summary judgment for Dappropriate where multiple inferences are possibile although inference for D is strong? To recover for injuries incurred in a slip-and-fall accident, the plaintiff must show that the owner of the premises either created a dangerous condition or had actual or constructive knowledge of a dangerous condition. It will be for a jury to determine whether a preponderance of the evidence supports the inferences suggestd by Thoma. Reversed and remanded.

Thoma v. Cracker Barrel Store Procedural Posture Facts

Issue Analysis Holding

Notes 1. Three common theories of liability for slips. a) D created and failed to take reasonable actions to remove the hazard. b) D did not directly create the condition but discovered or should have discovered a condition created by others and failed to take reasonable steps to prevent injury from that condition. (was on constructive notice) c) D¶s method of operation made it foreseeable that others would create a dangerous condition, and D failed to take reasonable measures to discover and remove it. 2. Method to prove that D should have discovered. a) Substance was there for a long time = a reasonable person should have discovered. Aka D was on constructive notice 3. Evaluating reasonableness. How to show D was N in not seeing slip for 15min? a) volume of customers = argue that frequent inspection was required. b) Risk-utility test. c)

d) b. Custom e) i. Def.: Unwritten, but generally prevailing practices in a community or industry as well as trade rules or standards that have been explicitly adopted by particular profession or industry. f) ii. Role g) 1. Custom is not dispositive on the standard of care. It can only assist the jury in determining what is reasonable. h) 2. The T.J. Hooper i) a. Tugboat, in line with industry custom, was not equipped with radio even though radios were cheap. Tugboat sailed into storm bc no one could contact it. Custom was deemed unreasonable. j) 3. Dempsey v. Addison Crane Co. k) a. P, a pile driver, was injured when load fell from crane. Even though jib mechanism employed was industry standard, there was an inexpensive and safer alternative available. Ct. concluded that D was neg.

Walmart v. Wright Procedural Posture Facts

Trial court granted summary judgment for D. Appeal judgment of N by D. P slipped on a puddle of water in the outdoor garden area of Walmart. P alleged N in the maintenance, care and inspection of the premises. Walmart Store manual detailed procedures for spills. Jury instruction: ³violation of store policies/procedures show the degree of care recognized by D as ordinary care. WalMart¶s rules and policies may exceed of what is required by ordinary care. Failure to follow a party¶s precautionary steps or procedures is not necessarily failure to exercise ordinary care.

Analysis

Duncan v. Corbetta Facts Issue Analysis

P injured when began to descend a stairway at D¶s residence and step collapsed Proof of general custom and usage is admissible because it tends to establish a standard by which ordinary care may be judged even where custom exceeds minimum safety requirements under an ordinance. Proof of general custom and usage is admissible

Holding Notes

1. General Custom and Usage Violation of customary safety precautions of the relevant community is sufficient to get P to the jury. 2. What custom Proves a) Harm was foreseeable b) D knew/should¶ve known the risk c) Risk was unreasonable in the opinion of the community 3. Custom other than safety custom« may be insufficient for negligence 4. Safety manuals may set the standard of care. Admissible for proof of N.

T.J Hooper Facts

The owners (P) of cargoes of coal contracted with the Northern Barge Co. (D) to ship the cargoes from Norfolk, Virginia, to New York. Accordingly, Northern Barge (D) loaded the coal aboard its barges Nos. 17 and 30. Northern Barge (as plaintiff in the following relationship) contracted with the owner (D) of the tugs "Montrose" and "Hooper" to tow the barges to their destination. However, while at sea the tugs ran into a storm and the barges sank. The cargo owners (P) sued Northern Barge (D) under their contract of carriage. Northern Barge (P) in turn sued the tugs (D) under the towing contract. The cases were consolidated and the tugs' owner (D) petitioned to limit his liability. The trial court found both barges and tugs unseaworthy. The finding as to the tugs was based on the fact that they carried no radio receiving sets by which they could receive timely storm warnings and seek breakwater shelter. The tugs' owner, however, argued this was not negligence since there was no general custom among tug owners to so equip their tugs. The trial court entered an interlocutory order holding each tug and barge jointly liable to each cargo owner (P), and each tug for half damages for the loss of its barge. The tug (D) and barge (D) owners appealed. Although evidence that the actor has complied with the standard of care customary is admissible, is it conclusive on the issue whether there was negligence? No. Although custom may be evidence of the common standard of care in a given industry or relevant community, it is nevertheless not conclusive on the issue of negligence but rather must meet the test of reasonable prudence. While it is generally true that reasonable prudence is in fact common prudence, nevertheless that is not the measure since an entire industry, calling, or trade may have unduly lagged in the adoption of new and available devices. Courts must make the final decision.Had they been properly equipped they would have received the reports necessary to avoid the storm.

Issue

Analysis

Holding

§ 4. PROVING UNSPECIFIED NEGLIGENCE: RES IPSA LOQUITUR A. ORIGINS AND BASIC FEATURES Definition  If an accident could not have happened without the negligence of the defendant, plaintiff needs not prove the defendants negligence. Notes 1. Res Ipsa Loquitur permits P to not prove a specific theory of breach. 2. Occurs usually when there is no witness, or P is unconscious. 3. RS TEST (1) The accident ordinarily does not happen in the absence of negligence. (2) Other responsible causes (plaintiff/3rd party) are eliminated by evidence.
i. D was in exclusive control of harm-causing instrumentality at the relevant time and place ii. Been relaxed to say D right of control or constructive control

(3) Indicated negligence is within the scope of defendant¶s duty. Procedural effects of RIL 1. If RIL is accepted, burden of proof shifts to D. 2. Also RIL instruction goes to jury 3. D can rebut RIL by evidence. (a) No preponderance of evidence (b) Proof that D didn¶t do it 4. All D needs to do to get directed verdict is to rebut the case for RIL.

B. IS NEGLIGENCE MORE PROBABLE THAN NOT? Koch v. Norris public power

Cosgrove v. Commonwealth Edison

Notes 1. Judging probability. P has burden to show that N is more probable than not. But juries may not have sufficient knowledge or experience to assess the probability. In such case the judge direct verdicts for D. Warren v. Jeffries Res ipsa loquitur does not apply where the negligence of the defendant is not the only reasonable explanation for an occurrence. Notes 1. Is there an explanation for the accident that would not involve negligence of the

defendant? (hand brake was set, and it was not D¶s fault that it got loose) 2. Inferences against D for failing to explain? 3. D¶s superior knowledge. 4. RIL could be an alternative claim with specific negligence. C. ATTRIBUTING THE FAULT TO DEFENDANT RATHER THAN OTHERS Notes 1. Exclusive control is not required for RIL 2. Multiple defendants problem. If two parties have an ongoing relationship pursuant to which they share responsibility for a dangerous activity, and if an accident happens establishing the negligence of one of the two, imposing res ipsa loquitur liability on both is proper.   Commits acts of dominion - acts like a true owner Ex) payment of taxes (benefits large owner. Monitoring land is expensive)

CHAPTER 7

HARM AND CAUSATION IN FACT

§ 2. CAUSE IN FACT (ACTUAL HARM)

A. BUT-FOR TEST FOR CAUSATION Hale v. Ostrow No nominal damages for negligence (yes for IT) = no deterrence purpose Notes 1. ³But for´ test. D¶s conduct is a cause of the event if the event would not have occurred but for that conduct; conversely, D¶s conduct is not a cause if the event would have occurred without it. 2. Res-ipsa and but-for cases. Res ipsa is used only for breach. Proof as to causation may still be needed. It¶s still helpful though. B. PROBLEMS WITH AND ALTERNATIVES TO BUT-FOR TESTS.

Notes: Liability of two or more persons 1. Two Ds causing separate injuries. Liability can be apportioned to each D. 2. Two persons causing a indivisible injury. A leaves dead horse. B negligently hits horse and harms passenger. Both A, B are but-for causes for P¶s injury. 3. Where concurrent, independent torts produce an indivisible injury, the tortfeasors will be jointly and severally liable. 4. Apportionment will be determined by intuitive fault allocation 5. E&E definition ±A tortfeasor is liable for all damage of which his tortious act was a

proximate cause. He may not escape this responsibility simply because another act ± either an innocent occurrence or other tortious conduct ± may also have been a concurrent cause of the injury. 6. Substantial factor test: D¶s act is actual causation if it was a substantial element in the harm done. 7. Increased risk showing causation. If (a) a negligent act was deemed wrongful because that act increased chances that an accident would occur and if (b) the accident had occurred, it is up to D to bring in evidence denying but for cause. C. PROOF: WHAT WAS CAUSED?

Summers v. Tice: burden shift to D When two or more persons by their negligent acts are possibly the sole cause of harm, and P has introduced evidence that one of the two persons is culpable, then D has the burden of proving that the other person was the sole cause of the harm. Notes 1. Consecutive shots. 1st hunter could be liable if 1) his shooting was negligent and 2) it was reasonably foreseeable that shooting in that direction would encourage his companion to shoot that way negligently too. 2. Aggravation of existing injury. If one can¶t prove the amount of enhanced existing damage, possible to aggravate damage to single defendant??? Lord v. Lovett Lost opportunity damages P may recover for a loss of opportunity injury in medical malpractice cases when the D¶s alleged negligence aggravates the P¶s preexisting injury such that it deprives the P of a substantially better outcome. «that is, if P can establish causal link btw D¶s N and the lost opportunity. « A loss of opportunity P must provide the jury with a basis upon which to distinguish that portion of damages. Notes 1. Duty-to-try cases 2. Quantified value of chance test D¶s duty of care is broad enough not merely to protect P against injury or loss of life, but also to protect P against substantial chances. If D¶s N eliminates P¶s chance of 40% survival, D is liable for the loss of chance he caused. 3. Damage under quantified test 4. What must be proved under quantified test. 5. Recent cases CHAPTER 8 NEGLIGENCE: PROXIMATE CAUSE

iii. Neg. and P. Cause 1. Foreseeability of P. Cause: Should D have foreseen the kind of harm that occurred and was P w/in the class of persons to whom such harm might foreseeably befall? 2. Neg. issues only a. If D leaves key in car and it was reasonably foreseeable that a thief would steal car, drive neg. and injure P, then D is the p. cause of P¶s injury and neg. 3. P. Cause issue arises a. If same thief drives fine, sells car to X, who then drives neg. and injures P, then D is probably not the p. cause bc D created the risk that a thief would drive neg., not a third person. 4. P. Cause v. Duty a. Duty is a general rule about reasonable care whereas p. cause inquiries are often very fact specific. b. P. Cause is a question of limiting liability to risks D neg. created whereas duty involves many policy considerations. c. For example, in old CL, bar had not duty to prevent customers from driving drunk even though it was highly foreseeable that they would. iv. Direct Cause Test 1. Liability imposed on neg. D who causes harm directly even though the harm that occurred was different from the harm that was reasonably foreseen. 2. This is useful for establishing duty and breach but not moral fault. 3. Polemis a. D neg. caused plank to fall. It was foreseeable that the fall would cause blunt damage to the ship. Like Barker test. It was not foreseeable that the fall would cause a spark, which would ignite gas in the ship causing an explosion. Ct. ruled that liability could be imposed on D bc the explosion was a direct cause of D¶s neg. v. Foreseeability Test 1. Maj. Cases hold D liable only for harm of the same general kind that D should have reasonably foreseen and should have acted to avoid. 2. The risk reasonably to be perceived defines the duty to be obeyed. 3. Same for P, who must be in the general protected class. 4. Foreseeability

a. D is liable if D could reasonably foresee the nature of the harm done, even if the total amount of harm turned out to be unforeseeably large: Thin-skull P Rule i. Ex: D neg. driving motorboat knows that he could knock P¶s stamp collection into water. If stamp collection is lost, D is liable for it, even if it turns out to be worth an unforeseeable $1M. b. The nature of the harm is the general kind of harm. It does not matter if D could not foresee the manner of injury or its details. i. See Hughes ii. If D drives his car really fast, it is foreseeable that D may cause property damage, therefore D will be liable for driving through living room even if he could not have imagined doing so. iii. There are more foreseeable risks when D unleashes large powerful forces such as cars, boats. 1. See Kinsman Transit c. D will try to describe the foreseeable risk as narrowly as possible, P as widely as possible. i. See Doughty ii. Derdiarian 1. D neg. posted P where P could be hit by car. P was hit by a car, but only bc driver forgot to take medication and had a seizure. The manner in which the injury occurred is not relevant bc the type of injury was very foreseeable. 2. But if P had been hit by a plane, the manner would be very important bc that was not a risk that D created. D created a risk of being hit by surface traffic, not planes. iii. Johnson v. Kosmos Portland Cement Co. 1. D neg. to clean barge, allowing chemicals to build up that could cause an explosion. Lightning struck the barge and an explosion occurred. Ct. said lightning was an unforeseeable intervening cause but D is nevertheless liable bc the type of harm that lightning caused (i.e., explosion and death) was foreseeable. 5. The Wagon Mound I a. D neg. caused oil to spread around Sydney Harbor. The only reasonably foreseeable risk was that the docks would be fouled. Instead, to everyone¶s surprise, fire ignited, burning dock. b. Rejected Polemisformulation that D should be liable bc D was direct cause of fire and there were no new independent causes of it. c. Instead, liability for neg. must be coextensive w/ neg. i. If D neg. created risk of harm A but harm B resulted, D not liable for harm B.

d. The kind of danger does not matter, but the harm does. Look at foreseeability prospectively. 6. The Wagon Mound II a. In this case, additional evidence showed that there actually was a foreseeable risk of fire but it was extremely small. Here, D was neg. bc there was some foreseeability and no good reason for releasing the oil. i. Legally there can be no t to not releasing the oil bc its very release was illegal. b. On the other hand, if D had had a good reason for the release or if the release had been too burdensome to prevent, then D might not have been neg. c. Bolton v. Stone i. P hit by ball hit out of park at cricket match. The foreseeability that one would be hit existed but it was extremely small. Avoiding the risk would have required a very high burden. Therefore, D is not liable for P¶s injuries. 7. Palsgraf v. LIRR a. D neg. pushed P on train, causing X to drop package, which unexpectedly contained fireworks and exploded, causing scales on other end of platform to fall, injuring P. b. Maj. held the D was not liable for P¶s injury bc P was not w/in the Orbit of Foreseeable Danger to be perceived by the Eye of Reasonable Vigilance. If P had been standing next to X, then perhaps she would have been a foreseeable P, but not in her actual location. Rejects hindsight foreseeability. Injury must be natural and probable result of breach. c. Andrews says that we should use hindsight foreseeability. As we now know that the package contained fireworks, we can say that it is foreseeable that P would be injured if the package were neg. caused to fall. 8. Hughes v. Lord Advocate a. D neg. left open manhole unattended. Kids discovered it and played inside. Kids knocked lamp into manhole, caused explosion and injured kids. Although the precise manner in which the harm occurred or agent (explosion) was unforeseeable, it was foreseeable that kids would be attracted and could be burned (type), therefore D is liable. b. In short, the type of injuries were foreseeable if not the precise manner in which they occurred, therefore, D liable. 9. Doughty v. Turner Manufacturing Co. a. Top of vat slipped into hot chemical. Unforeseeably, the top caused a chemical rxn and an explosion, which injured P on the other side of the room. P argues that P was splashed by chemical and that was the type of injury that was foreseeable from neg. knocking top in chemical. Ct. agreed that splash damages were foreseeable but recharacterized them as explosion damages in the interest of fairness and justice. b. Goes back to Cardozo¶s orbit of danger test. c. This case is inconsistent w/ Hughes, but Cts. can characterize damage as is appropriate in interest of fairness and justice. 10. Petition of Kinsman Transit Co.

a. D neg. moored boat. Boat came loose, damaged another boat, loosed another, crashed into bridge and flooded land upstream. Even though City was neg. in failing to raise bridge on time, last clear chance doctrine does not come in between joint tortfeasors. Ct. rules that even though damming was unlikely, there is a much larger radius of danger when dealing with large forces such as boats. b. When D unleashes forces that carry large risk of small damages and small risk of large damages and all damages are of the same general sort and to the same class of persons, then D should have to pay for all damages, even if the large damages, if viewed alone, would not have been great enough to require exercise of care. This std. is similar to Polemisbut still there must be some foreseeability, even if small. Foreseeability of the precise concatenation of events is not necessary. c. Still, company that installed dead man got off on ground that when they installed it, they could not have foreseen the crazy events of this night. 11. Kinsman Transit II a. Ps brought claims for interference of K when Ps could not cross bridge to transport grain. Ct. said that at some point the connection between D¶s activity and P¶s injury is too tenuous and the injury was merely a fortuity not a consequence. In other words, as Andrews said, liability must end somewhere. 12. Bolton a. The ball out of the cricket ct. hitting woman was fantastical. It was just too unlikely. Possible but highly unlikely. Unlike WM2, there was some utility in this conduct, burden of not playing cricket high. c. Paul and Fred Again i. Actual Cause 1. D yelled boo, P fell 2. P might have fallen anyway. ii. P. Cause 1. D recognized that P¶s behavior was dangerous, but did he recognize the precise type or manner of injury? 2. Like WM2, the burden for utility of complying w/ statute was nothing. 3. Still, for utility, the damage happened in a bizarre way. iii. Is there a lost chance issue? May P would have survived had it not been for electrocution. d. Intervening Superceding Causes i. Foreseeability is key. ii. Concept 1. D should be relieved from liability in superseding cause cases bc the risk represented is not one that D neg. created. a. Ex: D leases car to A w/o checking A¶s driving records. A then properly leases car to B who then improperly lets C borrow car. C drives drunk and hurts P. D is not liable to P bc D only ran the risk that A would be a neg. driver, not that C would be. iii. 2 Rules of Superseding Acts

1. RS §439: If D¶s breach is active, continuously operating, then an intervening act is not superseding. 2. If intervening act is foreseeable or w/in the scope of the risk neg. created by D, D does not get off. a. Derdiarian v. Felix Contracting Corp. i. D neg. stationed construction worker P at a place where P could be hit by a neg. driver. When P was hit by driver X who forgot to take his seizure medication, X was not a superseding cause of P¶s injury bc the intervening neg. was foreseeable. b. The scope of such foreseeability is limited by p. cause rules. iv. Criminal Acts 1. Old CL a. Criminal Acts were considered unforeseeable as a matter of law, even if in fact they were highly foreseeable. i. Ex: Roadside bar not responsible for selling alcohol to X who then drives drunk. b. Intentional and reckless tortious acts were not foreseeable either. Only neg. acts. c. Watson v. Kentucky & Indiana Bridge & RR i. D spilled gasoline. 3 hours later, X neg. threw match on ground and caused an explosion. Ct. ruled that if X had acted intentionally or maliciously D would not be liable. But bc X was merely neg., D was liable. 2. Modern Rule a. Now the foreseeability of criminal acts is a very fact specific analysis. b. If a criminal or intentional intervening act is foreseeable or is part of the original risk neg. created by D in the first place, then it is not a superseding cause. c. One test is that criminal acts are not superseding causes when D has actual knowledge of an exact injury resulting from criminal conduct that follows directly from D¶s neg. In such cases, D must take reasonable steps to guard against injury. d. Unforeseeable Intervening Act Causing Foreseeable Result i. If D creates a risk of fire but then an unexpected arsonist actually causes the fire, D may be held liable. e. Brauer v. NY Central & Hudson River RR i. D¶s train neg. hit P, knocking P unconscious and spreading his goods everywhere. P¶s goods were stolen even though D had guards on train who could have protected P¶s goods. Ct. ruled that a criminal act is not superseding if the act was foreseeable. The fact that train had guards suggests D had actual foreseeability. D also had constructive foreseeability bc P was knocked out. f. Still, as intervening act gets grosser/worse, cts. less likely to say it was foreseeable. 3. Prisoners a. Cts. have gone both ways. But generally cts.reluctant to find govt. liable. Particular criminal act done by prisoner may need

to be foreseeable (i.e., battered woman getting battered again). If D does something that D didn¶t go to jail for in the first place, govt. may be off hook. b. Williams v. State i. D held not liable for death of P caused by severe emotional distress when X escaped from state prison. c. Hicks v. US i. D held liable to estate when P¶s husband was released from hospital despite his violence behavior toward her, hospital¶s warning that D¶s crimes were the result of drinking, and D¶s arrest for intoxication. 4. Social Hosts / Dram Shops a. Traditionally held not liable for criminal acts committed by their customers or guests. b. In recent years cts. have been more willing to impose liability on bars, some resistance about social hosts. c. To avoid liability, bar must simply stop serving X drinks. d. Bar becomes part of chain of causation when it serves to X who is visibly intoxicated. 5. Keys in Car a. Cases split on whether intent of statute was to prevent car thefts or to protect public from dangerous driving by car thieves. 6. Suicide a. Old law: Ps almost never won. b. Now, P may win if D¶s acts very cleanly and directly tied to suicide. c. Exxon Corp. v. Brecheen i. Tank truck driver severely injured in loading shoot accident. Almost 3 years later, driver killed himself. Ct. allowed P¶s estate to collect bc D had exhibited signs of mental disturbance from the day of the accident until D¶s death. v. Natural Forces 1. Natural Force Present when D acts a. D cannot say that the force was an intervening cause, rather it was one of the circumstances that D should have considered. b. i.e., D starts fire and high wind spreads it. 2. Natural Force Foreseeable a. The D who can reasonably be expected to foresee and act upon the danger of a natural force is neg. if he fails to take that force into account. 3. Natural Force Unforeseeable a. D is not liable bc the harm was not foreseeable. 4. Neg. Concurring w/ Unforeseeable Force of Nature to Produce Foreseeable Harm a. D may be liable if the harm is a result of both the unforeseeable conditions and D¶s neg. b. Chase v. Washington Water Power Co. i. Hawks fighting caused wires to come together on power line, which started a fire and burned P¶s barn. D held liable bc given the spacing of the wires, it was

foreseeable that they could come together and start a fire, even if the precise mechanism was not anticipated. vi. Foreseeable Intervening Neg. Acts 1. D¶s liability is not ordinarily superseded by an intervening cause if D could foresee such an intervening cause or a similar one. a. Where type of intervening cause is foreseeable, even if not the preceise one, D will be held liable. i. Gossett v. Burnett 1. D bank neg. set off alarm. D liable when police car crashed on way to bank. ii. Gibson v. Garcia 1. D utility allowed pole to become rotten. Pole fell on P after accident. D liable. b. Bc precise foreseeability is not required and neg. of others is often readily foreseeable, intervening neg. act is seldom superseding. c. Intervening causes that lie within the scope of the foreseeable risk are not superseding causes. 2. D may be liable not only for harm D directly caused, but for additional harm inflicted when injury is aggravated by neg. medical treatment. a. Neg. medical treatment was foreseeable. 3. If enhancement of the risk by third persons is itself foreseeable or is the very danger created by D in the first place, D remains liable. a. See Glasgow Realty vii. Superseding Act 1. RS §315: Absent a special relationship, D is under no duty to control the conduct of third parties, unless D, by his conduct, creates the risk. a. Derdiarian 2. Acts that are outside the scope of the risk D neg. created or that were unforeseeable. 3. When D creates a narrow risk likely to come about only through a particular kind of intervening act or in a particular sequence, injury that comes about through any other means is not within the risk. (Contra general type of risk above). a. Sheehan v. NYC i. Bus neg. did not pull all the way to the side when letting passengers off. A sanitation truck, whose brakes failed, hit bus and P injured. D not liable bc the risk created was to passengers getting on and off, not passengers on bus. Truck was a superseding cause. 4. Liability limited to risks D neg. imposed. 5. RS §444 If an intervening act is not a ³normal response´ to the original tortious act, it is an extraordinary act that breaks the chain of causation. 6. Criminal act is not intervening if it is a reasonably foreseeable consequence of D¶s action. a. Waldon v. Housing Authority of Paducah i. Housing Authority liable for shooting death of P bc 1. D knew that X repeatedly threatened to kill P; 2. D knew that X was staying in complex w/o permission;

3. D did not attempt to evict X or discourage his presence; 4. There were no security guards to patrol complex even though crimes frequently occurred there. 7. Characteristics of superseding acts a. Act intervenes between original act and the injury; b. Act must be of independent origin, unassociated w/ the original act; c. Act must, itself, be capable of bringing about the injury; d. Act must not have been reasonably foreseeable by D; e. Act involves unforeseen neg. of a third party or the intervention of a natural force; f. Original act must, in itself, be a substantial factor in causing the injury, not a remote cause. The original act must not merely create a neg. condition or occasion; the distinction between a legal cause and a mere condition being foreseeability of injury. 8. Superseding cause doctrine still exists under comparative neg. viii. Cases 1. Glasgow Realty Co. v. Metcalfe a. D neg. maintained window. Window shattered when boy pressed on it and glass shattered on the ground. A panic on the sidewalk caused P to be pushed and injured. Ct. ruled that boy was at most a contributing cause and bc his action was foreseeable, D is not relieved from liability. Further, that a bystander below would be injured was foreseeable, even if the precise manner in which it occurred (trampled v. cut) was not foreseen. This is the abstract, personal injury std. b. 2 Rules i. If D¶s breach is active, continuously operating then an intervening act is not superseding. ii. If intervening act is foreseeable, D does not get off. 2. Weirum v. RKO General a. Radio station held contest, competitors awarded for being first to get to DJ. Competitors killed P. D challenged that it had no duty to P. b. Duty based on i. Guidance of history ii. Continually refined concepts of morals and justice iii. Convenience of the rule iv. Social judgment as to where loss should fall v. Key: Foreseeability 1. Young audience in the summer 2. Limited cash prize 3. Thrill of competition. vi. General Rule: All persons are required to use ordinary care to prevent others from being injured as a result of their conduct. 1. Risk of harm here far outweighed utility of conduct.

c. RS §315: Absent a special relationship, D is under no duty to control the conduct of third parties, unless D, by his conduct, creates the risk. 3. James v. Meow Media a. X enjoyed violent media produced by D, then killed P. b. Duty is based on foreseeability and, as a matter of law, it is not foreseeable that D¶s production would cause X¶s consumption of such media would cause him to shoot P. i. Finding duty would be contrary to the principles of a free society. ii. D cannot be required to ascertain the mental state of all their consumers. c. Superseding Cause i. RS §444 If an intervening act is not a ³normal response´ to the original tortious act, it is an extraordinary act that breaks the chain of causation. ii. Criminal act is not intervening if it is a reasonably foreseeable consequence of D¶s action. iii. This is a legal issue for the ct. to decide

CHAPTER 8 PROXIMATE CAUSE § 1. THE PRINCIPLE: SCOPE OF RISK - Proximate cause determinations involve case-specific inquiries into whether the defendant should be held legally responsible to the plaintiff. - Even when the defendant was negligent and in fact caused harm to the plaintiff, the defendant is not liable if the harm actually resulting was not the kind of harm that led to a finding of negligence in the first place. - Liability for negligence is liability for the unreasonable risks the defendant created, not for reasonable risks or for those that were unforeseeable. DEFINITION Actual cause that is a substantial factor in the resulting harm Foreseeability test: actor¶s liability is limited to those physical harms that result from the risks that made the actor¶s conduct tortious. «liability must be rejected unless RP would have reasonably foreseen the same general kind actually suffered by p.

Scope of risk: In order for proximate cause to exist, the injury must have been within the foreseeable scope of risk (in the general nature) created by defendant¶s negligence.

So«. D is liable only (a) for types of injuries foreseeably risked by his negligence and (b) to classes of persons foreseeably risked by his negligence.

Palsgraf

Andrews dissent =) 1. Duty ± doesn¶t agree with Cardozo¶s narrow construction of duty. ³duty runs to the world at large and negligence toward one is negligence to all.´ Why wide Duty and narrower Proximate cause? = deterrence purpose. Want to incentivize more care. 2. Causation± liability is limited by proximate cause, not by defining scope of duty or negligence. 3. Proximate cause is determined by several factors, not by the scope of the D¶s N. Stream analogy: Chicago fire: at some point, too many other things happen, and the red water in the stream should have shaded out« draws (a practical and political) line at some point to limit D¶s liability. Rescue doctrine o Danger invites rescue. Rescue is foreseeable, so D has duty towards rescuers.

§ 2.

ASSESSING THE SCOPE OF THE RISK

A. HARM IS NOT OUTSIDE THE SCOPE OF RISK BECAUSE OF THE MANNER IN WHICH IT OCCURS y Where the actual cause of an injury results from an unforeseeable action of a known risk, the unforeseeability of the manner in which the risk occurs does not excuse negligence.

Doughty v. Turner Manufacturing  Defendant¶s duty was to take reasonable care to avoid knocking down the cover in such a way as to create an immediate splash, not a latent explosion damage.  Why Different from Hughes? Political judgment? 1) Outside the range of scope of risk. 2) Manufacturer should be liable b/c didn¶t test. Sued the wrong D. Notes 1. Where the harm occurs in some bizarre, unforeseeable manner, is that irrelevant to judging whether the type of harm was foreseeable? 2. Some courts requires foreseeability in a detailed manner regarding how the injury might occur. (Heart machine manufacturer not responsible for the unforeseeable risk that surgeon would set up the machine in the wrong way) B. THIN SKULL RULE Hammerstein v. Jean Development West 

 

The Thin Skull Rule. If D has committed a tort, the fact that the harm was much worse than anyone would have expected does not limit his liability. In other words, Once N or IT is established by doing something that would cause harm to a normal person, D does not escape liability for unforeseeable injuries caused to P. In other words, A defendant may be liable for the full extent of P¶s harm, even where the extent of the harm was unforeseeable, (caveat«.) where the other elements of a prima facie case are established.

C. IS HARM OUTSIDE THE SCOPE OF THE RISK BECAUSE IT RESULTS MOST DIRECTLY FROM AN ACT OF AN INTERVENING PERSON OR FORCE? 1. Introduction: Scope of risk and natural and continuous sequence. o ³The proximate cause of an injury is that which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces an injury, and without which the injury would not have occurred.´ o An intervening cause that lies within the scope of the foreseeable risk, or has a reasonable connection to it, is not a superseding cause that breaks proximate cause. Watson v. RR o If the intervening agency is something so unexpected or extraordinary as that the RR could not or ought not to have anticipated it, he will not be liable. (D2 threw a match into a leaking train) 2. Intentional or Criminal Acts CL : superceding cause Modern: case by case. Is Intentional/criminal act foreseeable? But (1991): Criminal acts may in themselves be foreseeable, and so within the scope of the created risk. SUICIDE AS SUPERSEDING CAUSE Suicide is a superseding cause. Exceptions (1) D¶s tortious conduct induced the mental illness (2) Existence of a special relationship that includes knowledge by D of P¶s risk of committing suicide. 3. NEGLIGENT INTERVENING ACTS  An intervening act will not serve as a superseding cause, where the risk of the intervening act occurring is the very same risk which rendered the defendant negligent. e.g.: D1 was negligent in protecting P from automobile collision by not setting up fences. D2 also negligently crashed his car on P. D1¶s liability was not relieved by the negligent act of D2.

Notes 1. Again, the precise manner in which injury occurs does not matter. Hughes. 2. An intervening force which falls squarely within the scope of the original risk will not supersede the defendant¶s responsibility. Ventricelli v. Kinney System Rent-a-Car Recovery for negligence may be obtained only where reasonably foreseeable from the acts or omissions constituting the breach of duty. Maj: While D¶s omission to fix the trunk was negligent and was a cause in fact of the injuries, such injury itself was not reasonably foreseeable. (= no proximate cause) Marshall v. Nugent eThough this particular act of negligence was over and done with when the truck pulled up alongside of the stalled Chevrolet without having actually collided with it, still the consequences of such past negligence were in the bosom of time, as yet unrevealed«´ Notes: The termination of risk. 1. Dynamite allowed by parent: D¶s conduct created a risk but the risk so created was no longer existent«D¶s further acts in regard to them must be attributable to the parents permission and wholly independent of the original negligence of appellants. 2. The termination of the risk idea emphasizes that P had reached a position of ³apparent safety.´ 3. Sometimes courts resolve scope of risk issues involving intervening causes by saying that if the defendant¶s negligence ³merely furnished a condition by which the injury was possible and a subsequent independent act caused the injury, the existence of such condition is not the proximate cause of injury.´ Not very helpful.

SUBTOPIC 2. DEFENSES CHAPTER 9 : CONTRIBUTORY/COMPARATIVE FAULT § 1. CL CONTRIBUTORY NEGLIGENCE Butterfield v. Forrester Even relatively minor failure of the plaintiff to exercise ordinary care for her own safety would completely bar recovery. § 2. COMPARATIVE FAULT RULES Pure: recoverable damages diminished in proportion to P¶s fault Modified: if P¶s fault <, or <= D¶s fault, recoverable damages diminished in proportion to P¶s fault.

Factors that influence the degree of fault assigned to each party (1) Whether the conduct resulted from inadvertence or involved an awareness of danger (2) How great a risk the conduct created (3) The significance of what the actors sought by the conduct (4) The capacities of the actors, whether superior/inferior (5) Extenuating circumstances which might require the actors to proceed in haste, without proper forethought. RS §8. Factors for Apportionment of Liability (a) The nature of the person¶s risk-creating conduct, including any awareness or indifference with respect to the risks created by the conduct and any intent with respect to the harm created by the conduct; and (b) The strength of the causal connection between the person¶s riskcreating conduct and the harm. § 3. ALL-OR-NOTHING JUDGMENT AFTER COMPARATIVE FUALT 1. If P or D is not negligent because no breach/ no actual cause/ no proximate cause, no comparative fault assessment is necessary. 2. If P¶s fault is a superseding cause, no recovery. 3. P must mitigate damages

§4. ALLOCATING FULL RESPONSIBILITY TO THE DEFENDANT IN THE INTERESTS OF POLICY OR JUSTICE Policy Factors The policies involved when judges limit comparative fault defenses include: plaintiff incapacity (plaintiff lacks total or partial capacity for self care); structural safety role definition process values fundamental values autonomy and self risk McNamara v. Honeyman

CHAPTER 10 ASSUMPTION OF RISK Express assumption of risk (contractual)  Viable defense. Absolute bar.  Definition: Waiver by advance agreement of the right to sue the defendant for her negligence. 
Such waivers will not be enforced in certain contexts involving essential services (hospital), and they may be construed narrowly, but usually they will be honored by the courts.

Requirements  The consent to accept the risk should be freely given. Lack of meaningful choice makes the consent illusory. e.g. public parking, hotel safe waiving liability void against pub. policy  Plaintiff must clearly consent to accept the particular, conspicuous risk that led to the injury. General exculpation clauses doesn¶t provide these.  Express assumption does not extend to collateral risks (express waiver of liability for injuries form playing baseball doesn¶t cover injury arising from a hole in a field). e.g. must write those risks down. Implied assumption of the risk  Not absolute bar«reduces fault for comparative negligence.  Reflects the idea that an activity may entail inherent risks of injury even when carefully conducted by the operator.  If plaintiff is injured due to those inherent risks, defendant will not be liable because he was not negligent.  E.g., A skier hit by another skier, or a spectator hit by a foul ball at baseball game, will likely lose because it was not negligent to offer the activity, even though such injuries occasionally happen.  However, if injury occurs from a not inherent risk in the activity, the injury results from the negligence of the operator and he is liable.  Courts hold that the plaintiff assumed the risk of injury, but really, the operator was not negligent. Secondary assumption of risk (implied)  Arises when the defendant was negligent, and that negligence created a dangerous situation. The plaintiff became aware of the negligently created risk, chose to encounter it and suffered injury. - Unreasonable secondary assumption of risk - If plaintiff¶s choice to encounter the risk was an unreasonable one, this is negligent conduct. - This assumption of risk is the plaintiff¶s fault for comparative negligence. - Jury will be instructed to assign a percentage of fault to the plaintiff. - A few jurisdictions continue to treat secondary assumption of risk as separate defense. In such case, defendant¶s assumption of risk bars recovery. - Reasonable secondary assumption of risk - If plaintiff makes a knowing and reasonable choice to encounter the negligently created risk, comparative negligence courts allow plaintiff to recover fully. - This is because plaintiff¶s conduct was not faulty. - Contributory negligence jurisdictions may still recognize it as complete defense to the defendant. CHAPTER 12 CARRIERS, HOST-DRIVERS AND LANDOWNERS §1. CARRIERS AND HOST-DRIVERS -- Traditional rule: high degree of care required (just short of insuring safety)

-- Modern ALA. Code: owner, operator or person responsible for operation of vehicle is not liable for injuries of a guest who is transported without payment, unless caused by willful or wanton misconduct. §2. LANDOWNER¶S DUTY TO TRESPASSERS, LICENSEES, INVITEES, AND CHILDREN Definitions Trespasser has no legal right to be on another¶s land and enters the land without landowner¶s consent. ± Landowner only has duty to refrain from willful and wanton conduct. Invitee is on the premises (1) at least in part for the pecuniary benefit of the landowner (business invitee) or (2) who is on premises held open to the general public (public invitee) Licensee is someone who is on the land with permission, but with a limited license to be there; it is not inaccurate to say that licensee is someone who is neither a trespasser nor an invitee.

Duty Owed To Invitees
1. Maintain the property in a safe condition, AND 2. Conduct a reasonable inspection of the property to detect hidden dangers. If a hazardous condition is found, the possessor must: a. Fix, repair, or remove the hazardous condition, OR b. Warn the invitee of the condition (if it is impossible to fix, repair, or remove).  Trespassing invitee: If Invitee trespasses into areas beyond the scope of invitation, then in those areas the landowner owes no duty (except to refrain from wanton or reckless conduct). He becomes a trespasser. Gladon v. CTA  Duty to Trespassers/licensees: If landowner discovers the presence of entrant trespasser and he is about to encounter the imminent danger, duty of care arises.  The attractive nuisance doctrine applies where an artificial condition on a property owner¶s land creates an unreasonable risk of harm to trespassing children, who, because of their youth, do not realize the danger of the condition.  RS(2d)(339) A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon land if: ³(a) the place where the artificial condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and ³(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and ³(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and ³(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and

³(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.´  Open and obvious dangerous condition No duty of care to protect visitors against open and obvious dangerous conditions. § 3. THE FIREFIGHTER¶S RULE  Firefighter¶s rule: emergency professionals can¶t sue property owner for injuries sustained while doing your job. Exception: volunteer, private rescuer, off-duty worker. Exception: (1) intentional or willful wrongdoer (2) some juris: violation of a fire-safety statute/ordinance (3) risks not inherent in the job the officer was undertaken
-- The firefighter¶s rule does not bar recovery from the party whose negligence caused the injury. (Privately employed rescuers)

(281) Evolving standard for landowners §5. RECREATIONAL USES: RE-CREATION OF THE STATUS CATEGORIES No duty of care for those using property for recreational purpose §6. Lessors Duty Owed By Lessors i. Common Law: Landlord not liable except in limited circumstances (mostly existence today, but subsumed within contract): 1. Common Areas 2. Hidden defect of which landowner but not tenant is aware 3. Repaired dangerous condition but did so negligently 4. Premises leased for public use 5. (Of course, and may contract for different obligation) ii. Modern Rule 1. duty to exercise ordinary care Chapter 13 DUTIES OF MEDICAL AND OTHER PROFESSIONALS § 1. TRADITIONAL DUTUES OF HEALTH CARE PROVIDERS 1. Medical Standard of Care: what the average qualified physician would do in a particular situation. This can be more, or less, than the reasonable standard of care. 2. Expert testimony required for establishing the - Medical standard of care,

- Doctor¶s departure from the standard - Doctor¶s action/inaction was the direct cause of the injury. (not needed if grossly negligent or common treatment, clear mistake) 3. Divided Standard If medical authority is divided, as long as his exercise of judgment is supported by considerable number of experts, d is not held responsible. 4. Local customs ± Do not dictate what the standard of care is. ± Rather, standard is judged by reference to the facilities available to the doctor. 5. Specialists ± held to the standard of their specialties, the community of specialists 6. Non-medical practitioners ± permitted to practice according to their schools of belief. Subject to The standards of the school they profess, not medical standards. 7. Good Samaritan Statute ±³a person who in good faith renders emergency care at the scene of emergency shall not be liable for the result of any acts or omissions in rendering the emergency care.´ § 2. RES IPSA LOQUITUR Intro Res ipsa assumes simple causation. Medmal involves unknown risk, making Res Ipsa harder to apply. e.g. sponge left in body is easy RIL, but an unknown side effect is not necessarily RIL Negligence. 1. Standard for medical Res Ipsa ± As a matter of common knowledge, plaintiff¶s injury is more likely than not to have resulted from negligence. 2. Expert Testimony ±Can be used to fill the role of common knowledge (to show what is res ipsa for medical community) 3. RIL against surgical team ± Where an unexplained injury occurs during a medical procedure to a part of body not under treatment, RIP applies against all medical personnel who take part in the procedure ± ³Exclusive control´ is no longer a strict requirement. (right of control, constructive control is enough) ± It¶s unfair for p to have the burden to identify the actor § 3. INFORMED CONSENT ± Performing an operation without patient¶s consent is an assault. ± Informed consent: A physician owes his patient the duty to disclose all significant medical information that the physician possesses or reasonably should possess (information possessed by the average

qualified physician) that is material to an intelligent decision by the patient (jury Q) whether to undergo a proposed procedure.

± In case of a specialty, by the average qualified physician practicing that speciality. ± There might be therapeutic reasons for withholding information (e.g. ) ± The standard of disclosure requires expert testimony. ± ³As to Relevant information that is not about risks, the standard of disclosure is the ³standard of practice within the medical community´ ± Causation: Must show that a reasonable person (and herself) would have refused the procedure with the proper information. ± Physician may not perform even life-saving procedures without consent. ± Informed consent requires risks and consequences of a medical procedure. ± But success rate is not part of what¶s required under informed consent. Other case holds that physician should inform that more experienced surgeons were available. But this is not really N case. ± If patient refuses risk-free test, doctor has the additional duty of advising all material dangers of refusing the test if patient doesn¶t appreciate the consequences.

CHAPTER 14 FAMILY MEMBERS AND CHARITIES §1. FAMILY MEMBERS A. TRADITIONAL FAMILY IMMUNITIES - Suits were barred between Spouses and parent-child. Exceptions: (1) Property interests (2) relationship terminated by maturity or emancipation (3) Intentional torts btw family members (4) Family injury from violation of ordinary duty owed to a larger class. Ex) entrusting an explosive material to an infant is ³a breach of a duty of care owed to the world at large, one that exists outside of a family relationship.´ negligence, basically - Majority has now abolished the spousal and parent-child immunities. Modern CL ± NEGLIGENT SUPERVISION - The parent-child immunity is abrogated except for following situations: (1) The alleged negligent act involves an exercise of parental discipline over the child; and (2) The alleged negligent act involves an exercise of ordinary parental discretion with respect to provision of care (medical treatment, maintenance of home, supervision«) issue« not categorical ban, broadly defined. Notes - Some courts go beyond this and say parents are liable under reasonable person (or parent) standard. - NY court goes the opposite way. (respects parenting differences) § 2. CHARITIES Traditional Rule ± Charities are not liable (hospitals and other non-profit organizations) Exceptions ±(1) Liable as to non-trust funds. (Liable to the extent that insurance or other funds are available.) (2) Not liable for negligence of its servants, (But, liable if hospital was negligent in hiring a dangerous orderly) (3) No immunity to those who paid for its services. (Liable to paying patient but not charity patient) (4) No immunity as to its collateral commercial activity. (YMCA « ski camp) (5) Intentional torts, Reckless torts Abolition ± most states abolished charitable immunity entirely

CHAPTER 15 GOVERNMENTAL ENTITIES AND OFFICERS 1st step for government defendant: Is there an immunity? 2nd step is go through prima facie case. § 1. Traditional CL No immunity. § 2. FTCA A. General Structure  Under the FTCA, United States waive immunity to an act where local law would make a ³private person´ liable for the same act.  This is not true where local would make a state or municipality liable instead. B. Feres Rule (exception)  FTCA bars claims by active military personnel ³incident to service.´ C. Discretionary or basic policy immunity test 1. Government action is mandatory: no immunity. If not mandatory, go to 2. 2. Action performed during design phase of a policy: Yes Immunity. Action performed during implementation phase: No immunity. § 3. IMMUNITIES UNDER STATE LAW Discretionary rule same as FTCA Liable up to their insurance Rule: if action involves a question of allocation of resources, it is a policy decision so there is discretionary immunity Exception: no immunity if a ³special relationship´ exists btw the state and individual. e.g. the state knows who she is, state says they are coming, (she) relied on the words. Exception: no immunity if performs ³proprietary function´ (new function w/o trad. Immunity.Running a swimming pool) Maintanence of roads, hospitals (not a policy question«already determined) Public duty exception Immunity when an act is a failure to provide care owed to the general public. Exception: creation of a special relationship § 4. OFFICERS Judges, prosecutors, and others closely acting as if them are immune e.g. child protective services § 5. STATE AND MUNICIPAL LIABILITY A. Traditionally absolute immunity for judicial and legislative officers. B. 3 factors that extend immunity to non-judicial officers (1) Whether the official performed sufficiently comparable function as those who has immunity at CL. (2) Likelihood of harassment sufficiently great to interfere with official¶s duties (3) Existence of procedural safeguards that would protect officialtheee¶s unconstitutional conduct.

§1983 allows individuals to sue state employees who violated constitutional rights.

TOPIC B : RELATIONSHIPS OR THEIR ABSENCE: NONACTION, CONTRACT AND PROTECTION FROM OTHERS CHAPTER 16 : NONFEASANCE § 1. NO DUTY TO ACT RULE - A person has no duty to rescue another person unless he is responsible for placing that person in danger. - words do not count as putting a person in peril. § 2. EXCEPTIONS, QUALIFICATIONS A. If a person knows (or has reason to know) that his conduct, whether tortious or innocent, has caused harm to another person, he then has a duty to render assistance to prevent further harm. B. If a person has created an unreasonable risk of harm, even innocently, a duty of reasonable care arises to employ reasonable care to prevent the harm from occurring. C. Statute: when it¶s really easy to do so. Duty is minimal (phone call is okay). D. If a person takes action demonstrating an undertaking concerning another¶s wellbeing, the former voluntarily assumes a duty to exercise due care for the latter. E. Special relationship (Carrier-passenger, innkeeper-gust, landowner-lawful entrant, employeremployee, school-student, landlord-tenant, custodian-person in custody) F. ³Innocent bystander rule.´When a driver is unwilling/unable to seek emergency aid for victim struck by the driver¶s vehicle, the driver¶s passenger have duty to seek emergency aid or take other precautionary measures to prevent further harm to victim. G. DeShaney v. Winnebago? CHAPTER 17 CONTRACT AND DUTY §1. NONPERFORMANCE OF PROMISES Traditional CL ± no duty for promising gratuitous acts, unless attempts to do it and does it amiss. §1. Promise to third person To establish tort breach, there must be a breach of duty separate from breach of contract. RS3.Gratuitous undertaking An actor who undertakes to render services to another, when the actor knows or should know that the services will reduce the risk of physical harm to the other, owes a duty of reasonable care in carrying out that undertaking if (a) the failure to exercise care increases the risk of harm beyond that which would have existed without the undertaking, or (b) the other person relies on the undertaking. Can also argue for ³special relationship´ extension § 2. Promise to third persons - if not contractual duty arises, no tort duty

- a party who incidentally confers benefit to third parties owes no duty to keep them satisfied. CHAPTER 18 DUTY TO PROTECT FROM THIRD PERSONS §1. DEFENDANT¶S RELATIONSHIP WITH THE PLAINTIFF 1) An individual has no duty to warn (protect) another about a criminal act by a third party, 2) Exception: a special relationship between the parties. (argue for special relationship with the evolving modern social standard) - Balancing test. B= PL P: prior incident, location L: harm -³In determining whether a business owner owes a duty to protect its customers against the criminal acts of third persons, the foreseeability (P) and gravity (L) of harm must be balanced against the commensurate burden imposed on the business to protect against that harm.´ -Landlords have duty to manage common areas or promise. Note Colleges have no duty to protect from regular college life (students are adults) Schools have a duty of a parent (loco parentis: school is required, parenting responsibilities transferred) § 2. DEFENDANT¶S RELATIONSHIP WITH DANGEROUS PERSONS  Ordinarily no duty to control the conduct of a third person for the benefit of the plaintiff.  Exception: if d is in a special relationship to p or the third person, d is under a duty of care. e.g. d¶s duty extended to all those who are directly and foreseeably exposed to risk of bodily harm from d¶s negligence.  Duty To control children No Duty just on the basis of parental relationship alone. Duty only for controlling some specific dangerous habit of a child of which parent knows or should know in the  Duty to warn existence of a dangerous person: Once a therapist knows or should know that his patient presents a real danger to a third party, there is a duty to warn or otherwise take reasonable actions to prevent the danger.  Duty to restrict use: RS308: it is negligence to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actors knows or should know that such person intends or is likely to use the thing or to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others. RS309: one who supplies chattel for the use of another whom the supplier knows or has reason to know to be likely to use it in a manner involving unreasonable risk of physical harm to himself and others is subject to liability for physical harm resulting to them.

CHAPTER 19 EMOTIONAL HARM SUBCHAPTER A. INTENTIONAL AND RECKLESS HARMS

§1. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS Prima Facie: AICI RS 45: Liability for physical and emotional harm -- an actor who by extreme and outrageous conduct intentionally or recklessly causes severe emotional disturbance to another is subject to liability for that emotional disturbance and, if the emotional disturbance causes bodily harm, also for the bodily harm. Intent: Intend to cause severe emotional disturbance or act with reckless disregard of whether the plaintiff would suffer such harm. Intend: fulfilled when acts with purpose of causing SED or with knowledge that SED substantially certain to result. Reckless: fulfilled when actor knows the risk of SED and fails to take precaution that would eliminate or reduce the risk even though the burden is slight relative to the magnitude of risk. Act: Extreme and outrageous conduct: generally, insensitive or even rude behavior does not constitute extreme and outrageous conduct. Mere insults, indignities, threats, annoyances, petty oppressions do not rise to extreme and outrageous conduct«in determining whether certain conduct is extreme and outrageous, courts consider the context and the relationship between the parties -- Abuse of power«Is it beyond the bounds of tolerable workplace conduct? -- Does it occur repeatedly or regularly that it cannot be tolerated? -- Directed at a person known to be especially vulnerable? e.g. (abuse of power) sheriff crudely questioning rape victim, employer-employee e.g. (repeat) single sexual contact might be offensive but usually not sufficiently outrageous. e.g. (vulnerability) threats of legal action against person w/ mental problem. Delayed insurance payment to person with limited life expectancy Exception: an exercise of legal right is excused even with knowledge that it will cause ED. e.g. divorce, firing at-will employee, seeking to collect debt. Causation: actual but-for causation required. Injury: must be severe or debilitating. Much more than routinely/typically expected in the circumstances. Statute: provide cause of action for: discrimination against disabled, sexual harassment, employment. First amendment consideration Statements not understood to be factual (opinion, satire) are protected. Public figures are denied tort recovery based on speech A threat of divine retribution is not actionable, but fradulent inducement into an atmosphere of coercive persuasion is. Emotional distress to third person: directness Where outrageous conduct is directed at third person, the actor is subject to liability if he intentionally or recklessly causes SED (a) to a member of such person¶s immediate family

who is present at the time, regardless of bodily harm, or (b) to any other person who is present at the time, if such distress results in bodily harm. SUBCHAPTER B. NEGLIGENT INFLICTION OF DISTRESS OR EMOTIONAL HARM §2. FRIGHT OR SHOCK FROM RISKS OF PHYSICAL HARM A. EMOTIONAL HARM DIRECTLY INFLICTED ON THE PLAINTIFF CL: there is no recovery for SED for consequences of fright alone. Impact Rule: recovery allowed when there is the slightest impact. Modern rule: abandoned the impact rule. Manifestation: emotional injury must be medically diagnosable, but not necessarily reflected in observable physical manifestations. Zone of Danger: recoverable only where D¶s N placed P in danger of physical injury, and because of that danger P suffered SED. Qualification: P must fear physical injury themselves to recover. Grube. RS 46: a person whose negligent conduct causes ´serious emotional disturbanceµ to another is liable if (a) D·s negligence places P in ´immediate danger of bodily harmµ or (b) the negligence occurs (1) in the performance of particular categories of undertaking, such as caring for and disposing of dead bodies, or (2) in connection with a relationship in which D is in a position of power or authority over P, or ´in which serious emotional disturbance is otherwise likely.µ B. EMOTIONAL HARM INDIRECTLY RESULTING FROM INJURY TO ANOTHER PERSON Grube Zone of danger rule applies Bystander Rule Dillon Rule. D owes duty to protect not only the injured person but those who might foreseeably suffer emotional harm because of the injury. -- Three factors in determining forseeability (1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it. (2) Whether the shock resulted from a direct emotional impact upon the plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence. (at least shortly thereafter) (3) Whether plaintiff and the victim were µclosely related¶ Thing Rule Plaintiff may recover from NIED if P: (1) is closely related to the injury victim [related by blood or marriage « relatives residing the same household, or parents, siblings, children and grandchildren of the victim] (2) is present at the scene of the injury producing event at the time it occurs and is then aware that it is causing injury to the victim (strict observance of act)

(3) as a result suffers serious emotional distress ± a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances. Note: some courts allow recovery where p arrived the scene shortly thereafter before a material change in the situation (strict rule does not allow) Note: if P is also a direct victim, bystander rule X, a separate rule applies. (when at least d implicitly undertakes to protect p«pregnant woman case) § 3. DUTIES OF CARE TO PROTECT EMOTIONAL WELL-BEING INDEPENDENT OF PHYSICAL RISKS Traditional rule: no duty to avoid negligent infliction of distress (w/o physical injury) e.g. Negligent misdiagnosis, negligent caring of dead body. Exception: special relationship (erroneous announcement of a death of family) Modern rule: (1) physical manifestation or injury rule will no longer be followed (2) NIED claims should be analyzed under general Neg. approach. Injury must be severe or serious«occurs where reasonable person would be unable to adequately cope with the stress engendered by the circumstances of the case. § 4. LIABILITY FOR TOXIC EXPOSURE

CHAPTER 20 PRENATAL HARMS § 1. PRENATAL AND PRECONCEPTION INJURY 1. Traditional rule. D is not liable for a fetus when pregnant woman is injured by D¶s negligence. (absence of precedent, remoteness, µyet to be a person¶) 2. Modern rule ± Child born alive. Most courts today allow tort claim by the child if the child is born alive. Most courts reject the view that viability at time of injury is required. 3. Modern rule ± Child not born alive but viable at injury Wrongful death action allowable when fetus is stillborn, but was viable at the time of injury. 4. Modern rule ± Child not born alive and not viable at injury or thereafter. No liability. (Maj. View) 5. Emotional distress damages Not uniform rule. 6. Parental liability Notes mentions the difficulty of drawing the line of duty for 1) Mother, in the past, was transfused with the wrong blood and fetus was harmed. ³duty may be owed to one who may be foreseeably harmed, even if unknown or remote in time or place´ 2) mother, had her uterus perforated negligently and future child was harmed.³it would be difficult to preclude liability where negligent motorist collides female passenger who sustains punctured uterus«´³foreseeability alone doesn¶t establish duty´³would encourage the practice of defensive medicine´ § 2. WRONGFUL LIFE, BIRTH OR CONCEPTION

Wrongful conception Chaffee v. Seslar A parent may seek to recover child-rearing costs from a physician who has negligently performed a procedure to prevent conception by the parent. Holding: ³Yes. As in other N actions, if p proves all the elements of tort, p is entitled to all damages naturally flowing from the breach of duty. Therefore, child-rearing expenses are available to p if she carries her burn of proof at trial that these damages are a natural and probable consequence of d¶s breach. Under the facts of the case, child-rearing expenses are a natural and probable consequence of d¶s breach, since p came to him for the express purpose of avoiding such expenses, and d¶s sole purpose in performing the procedure was to comply with her wishes to prevent conception. Also, child-rearing expenses are not too speculative, and are easier to calculate than other types of more complex damages. The parent¶s injury here is not the birth of the healthy child, which some argue cannot constitute a legal harm, but the invasion of her interest in the financial security of her family and her attendant desire to limit her family size, as well as the deprivation of her right to limit procreation. Also, the sanctity of life is more undermined by a parent being financially unable to provide the basic necessitites of life than allowing the recovery of child-rearing expenses. However, the healthcare provider is entitled to present evidence to limit the amount of the recovery of child-rearing damages by the benefits resulting from the child¶s birth. Damages are to be redced only to the extent that the benefit received by the p is the ³same interest´ that was harmed by the d¶s tort, and is equitable. ± Wrongful birth cases: doctor negligently fails to diagnose genetic difficulty. Allowed. ± Possible causal difficulties: ± Causal difficulties: is testimony (mother would have aborted) require more verifiable standard? ± Wrongful life: a child cannot bring claim for being born in contrast to his will. ± Emotional distress: Ind. Court held that wrongful birth actions were med mal cases, so general rules of negligence applied, and that all damages proximately caused by d¶s negligence would be recoverable. ± Damages for wrongful birth: recovery is limited to the ³extraordinary´ expenses over and above ordinary child-rearing expenses. ± Damages in wrongful conception:the healthy but unwanted child. Most courts allw recover for mother¶s pain in pregnancy, medical costs of pregnancy, abortion, or birth, as well as any lost wages during this period. But most courts deny recovery for the cost rearing the healthy child damages are speculative or out of proportion to d¶s fault.

CHAPTER 21 DEATH CL ±Lawsuits don¶t survive death Statute± provides claim for death claims Parasitic claim± need successful underlying main claim by deceased had he lived. Survival statute±pretend decedent has survived and continues to bring suit. Dmgs pass to the estate Non-pecuniary ³loss of life´dmgs only to (minor) Wrongful death statute -- $ owed to close relatives Claims at CL = only pecuniary Now includes non-pecuniary = e.g. loss of consortium

Maj: no punitive dmgs, mental distress $ goes directly to survivors Measuring dmgs 1) Loss-to-survivors 2) Loss-to-estate 3) Some allow both Chavez Chavez¶s parents and daughter were both dependent on him. Daughter dies month after Chavez. 1) Wrongful death claim possible for both grandpa and daughter 2) Survival claim only possible for daughter ± she¶s the lawful heir, only she can sue on behalf of the estate. Notes  Some restrict recovery for death of non-custodial parents, non-married couple  Because claim is parasitic, assumption of risk/contrib reduces dmgs.  Some SOL/dmg cap issues.

PART 4 THE EBB AND FLOW OF COMMON LAW STRICT LIABILITY FOR PHYSICAL HARMS CHAPTER 22 VICARIOUS LIABILITY § 1. RESPONDEAT SUPERIOR AND SCOPE OF EMPLOYMENT Goal: (a) prevention of future injuries (b) assurance of compensation to victims (c) equitable spreading of losses caused by an enterprise. Rule: employer is liable for employee¶s negligence acting within the scope of employment Test for scope of employment: whether the act was done while employee was performing a service in furtherance of his employer¶s business, no matter how irregularly, or with what disregard of instructions. Fruit v. Schreiner Act is within the scope of employment when employee, after working hours, negligently inflicted auto injury to another. ³Borrowed servant´: employer 1 ³loans´ one of its employees to 2 and ³boom´ Liability depends upon which employer is in the better position to take measures to prevent the injury suffered, looking at which employer has a right to control an employee¶s conduct. Traditional approach: first employer is vicariously liable, while the ³borrowing´ employer is not. Captain of the ship doctrine Police officer problem Even in case of serving gratuitously: relationship of master and servant established when putative servant submits himself to the control of the employer.

³Going and coming´rule :employee going to and coming from work is outside scope of employment Exception: Hinman v. Westinghouse Electrice Co. If the employer and employee have made the travel time part of the working day by their contract, the employer should be treated as such during the travel time so that the doctrine of respondeat superior applies as long as the employee is using the time for the designated purpose. Exception test: Actor is within scope of employment when (1) employee is engaged in a special errand or mission on the employer¶s behalf (2) employer requires the employee to drive his or her personal vehicle to work so that the vehicle may be used for work-related tasks (3) employee is µon-call¶ Factual variations Employee on an off-premises lunch break, police off duty but on-call, employee off duty but checking work-related info.Frolic and detour ( ..) Reentry into employment ( )Test: 1)employee must have formed an
intent to act infurtherance of employer¶s business 2) intent must be coupled with reasonable connection in time and space with the work in which he should be engaged«.RS: frolic ends when an employee once again performs assigned work and taking actions incidental to it, or when he takes action consistent with resuming work.

Rule :One does not abandon his employment while temporarily acting for his personal comfort when such activities involve only slight deviations from work that are reasonable under the circumstances, such as eating, drinking, or smoking. Slight deviations: doing something ³necessary to the comfort, convenience, health and welfare of the employee while at work, though personal and not acts of service´ Intentional tort: While neither are dispositive, the factors of employee motive and foreseeability of misconduct are both relevant to the analysis of respondeat superior liability. e.g. in this case, Tripoli¶s motive to sexually assault was completely personal. Risk of sexual assault by employee is not a risk fairly attributed to the nature of technician¶s employment. (IT) Rodebush v. Oklahoma Aideslapped an elderly Alzheimer¶s disease. Ordinarily no liability for employee¶s assault upon others. However, this rule does not apply when ³the act is one which is fairly and naturally incidentto the business, and is done while servant was engaged upon the master¶s business and arises from some impulse of emotion naturally growing out or incident to the attempt to perform the business.´ Fahrendorff v. North homes ³Inappropriate sexual contact or abuse of power in these situations, is a well known hazard´ § 2. EMPLOYERS WHO ARE NOT MASTERS D.C. v. Hampton Rule: A principal must have the right to control an agent in the performance of her duties.

Analysis: basic rules and regulation concerning conditions for foster homes does not establish that foster parent is under the actual control of the D.C. to make him its agent. EXCEPTIONS FOR NO VIC. LIABILITY FOR INDEPENDENT CONTRACTOR Employer is not liable for torts of independent contractor. Test for Independent contractor: employer can only determine what is acceptable as end result. e.g. Independent if employee brings special skills. e.g. Independent if runs own business and works for others as well Exception: hospital is liable for hired doctors despite having no say in the treatment procedure. -- Structuring EREE relationship by contract Employers often try to contract around so employees are considered independent K¶ers Retained control doctrine Employees who are ordinarily independent contractors may become servants if sufficient control is retained by the employer. Another Exception to Independent contractor: Nondelegable duty Rule: person who hires independent contractor does not escape liability under independent contract rule. Applies to: inherently dangerous activities and cases of peculiar risk, statutory duty for providing safety protection e.g.: use of explosives, acids, paint on neighbor¶s door, hiring a convict, tractor turns over a grassy slope. e.g. Duty to maintain safety of land open to the public or chattels supplied for business use. Landowners and construction contractors Owner is liable if someone was injured after work is done and owner resumes possession. Exception: Work was done improperly and temporarily created a risky condition during construction. Reliance: Apparent agency When principal (independent branch) creates the appearance that it is an agent (of McDonald¶s HQ), and plaintiff shows reliance on the appearance and harmed as a result, Innocent 3rd party (McDonald¶s HQ) is vicariously liable. Test for reliance: (1) p reasonably believed that restaurant was operated by McDonald¶s? (2) p reasonably believed and would not have used the bathroom Managed health care or HMOs example Patient is relying on the HMO if he didn¶t select a specific physician for reason such as prior relationship, but merely selected from the list furnished. Selecting incompetent contractors  Principal is liable for the actions of an independent contractor if the independent

contractor was incompetent, the harm involved arose out of the incompetence, and the principal knew or should have known about the contractor¶s incompetence.  Employer who is not vicariously liable may still be primarily liable for its own causal negligence. (negligently hires, supervises or retains incompetent employee) e.g. Corporate negligence: hospital liable for allowing independent but incompetent physician to use its facilities. § 3. OTHER FORMS OF VICARIOUS RESPONSIBILITY Acts of business partner Acts of person engaged in joint enterprise Acts in concert to d or aids/abets Owner who lends car to another

CHAPTER 23 STRICT LIABILITY Strict liability Animals SL for wild animals and domestic animals who are abnormally dangerous for their breed . Domestic: one bite free rule : first bite no negligence, but shows violent propensity and second bite is neg. The fact that a domestic animal is inherently dangerous (i.e., by nature the breed is dangerous) does not make for strict liability unless the P can show that the particular animal who caused harm was abnormally dangerous for its breed. Wild animal: distinguishing a wild animal is a matter of local culture. So an elephant is not wild in some parts of S.E. Asia, but it is wild in Durham, NC. Trespassing farm animals = strict neg.

STRICT LIABILITY FOR CERTAIN USES OF LAND Nuisances: whether something is a nuisance, and if it is, whether it is excused. Test: temporary and involve typical uses of land that everyone at some point will engage? ( give and take principle) Requirements that the invasion be substantial; unreasonable; and harmful only to persons normally constituted (no thin skulled Ps here). Know the relevance of coming to an established nuisance and of imposing a new nuisance on an established land use. Nuisances that disturb the right of the public to enjoy public land may be the basis for an

individual claim, but only if that individual is specially-situated, i.e., has a claim different in kind from the general public s. So a commercial fisherman whose livelihood is affected by harm done by a private company to public waters may have a claim where a recreational fisherman would not. Non-natural uses of land become inconsistent or abnormal land uses Distinction between natural uses (mine that is flooded naturally by rainwater) and non-natural uses (mine flooded non-naturally with water collected in a man-made reservoir) Restatement (3d) for SL (1) D s activity creates a reasonably foreseeable and highly significant risk of physical harm even where reasonable care is exercised by all actors (2) The activity is not one of common usage. Restatement (2d) for SL In determining whether an activity is abnormally dangerous, the following factors are to be considered: (a) High risk (b) Likelihood that the harm that results from it will be great; (c) Inability to eliminate the risk by the exercise of due care; (d) Extent to which the activity is not a matter of common usage; (e) Inappropriateness of the activity to the place where it is carried on; (f) Extent to which its value to the community is outweighed by its dangerous attributes.
Scope of Risk for SL Limited to those harms that result from the risks justifying strict liability Affirmative Defenses for SL CL: contributory negligence No. Assumption of risk YES. 3d: Comparative negligence YES Assumption of risk NO.

Wonderland problem Restatement (3d) for SL (3) D s activity creates a reasonably foreseeable and highly significant risk of physical harm even where reasonable care is exercised by all actors (4) The activity is not one of common usage. (1) Activity is operation of a industrial plant involving highly toxic solvent.

Highly significant risk: Highly toxic -- believed to be a carcinogen, causes nausea and headaches for months. These are not ordinary risks people are exposed in daily lives. These propensities were known beforehand, and industrial plant accidents do occur from time to time. Factory owner can reasonably foresee these harms to nearby residents Reasonable care: standard in the industry, manufactured/maintained consistent with all applicable state and federal regulations = reasonable care is exercised by all actors. (2) Activity is not common in Wonderland: the area is a housing development comprising of only 10 houses. Distinction between natural uses (mine that is flooded naturally by rainwater) and non-natural uses (mine flooded non-naturally with water collected in a man-made reservoir). Not a natural use because occurred within the factory Restatement (2d) for SL
(a) High risk: followed industry standards so not extremely high (b) Likelihood that the harm that results from it will be great; Carcinogen, causes nausea and headaches for months. (c) Inability to eliminate the risk by the exercise of reasonable care; Accident occurred with following standards (d) Extent to which the activity is not a matter of common usage; No one else runs a factory or toxic chemicals related to factory use (e) Inappropriateness of the activity to the place where it is carried on; Residential area (f) Extent to which its value to the community is outweighed by its dangerous attributes. Quiet and isolated area. Rezoning ordinance supports that value.

Factory¶s defense:
(1) Not reasonably foreseeable: Accident occurred with following reasonable care standards. Toxic fume Carcinogen is only a correlation, not a causation. Can¶t say for sure if the fume causes cancer.

Ordinary risks to the extent that Detroit is a industrial area, and Wonderland is only 10 miles away from the city. Common usage: common in Detroit. Wonderland is a mixed-use zone. Affirmative Defense Comparative: smoke detectors could¶ve lessened the harm?

CHAPTER 25 SETTLEMENT AND APPORTIONMENT SUBCHAPTER A. INSURANCE AND SETTLEMENT SUBCHAPTER B. SETTLEMENT WITH MULTIPLE DEFENDANTS § 4. NEW FORMS OF APPORTIONMENT AMONG TORTFEASORS RS of Apportionment § 8: The nature of each person¶s risk-creating conduct includes such things as how unreasonable the conduct was under the circumstances, the extent to which the conduct failed to meet the applicable legal standard, the circumstances surrounding the conduct, each person¶s abilities and disabilities, and each person¶s awareness, intent or indifference with respect to the risks.´ Market-share apportionment: not liability apportioned by fault or causation, and not joint and several liability. (Just several liability).
In order to get Market Share Liability, P must show 1. All Ds acted tortiously; 2. Ps have been harmed by conduct of one of D a. All potentially responsible Ds must be brought in. 3. P, through no fault of her own, is unable to identify which D caused the injury. 4. Product must be generic and fungible.
§ 5. MULTIPLE D ¶S : S ETTLEMENT AND SUIT IN JOINT & S EVERA L LIABILITY S YSTEM CAL. CODE CIV. PRO C Where a release, dismissal with or w ithout prejudice, or a covenant not to sue or not to enforce judgment is given in good faith before verdict or judgment to one or more of a number of tortfeasors claimed to be liable for the same tort « (a) It shall not dis charge any other such party from liability unless its terms so provide, but it shall reduce the claims against the others in t he amount stipulated by the release, the dismiss al or the covenant, or in the amount of the consideration paid for it whichever is the greater. (b) It shall dis charge the party to whom it is given from all liability for any contribution to any other parties«    Later case required judicial review of ³good faith.´ Secret settlements are not in good faith High-low agreement? (high-low settlement depending on jury verdict)    What happens when plaintiff settles for less than D 1¶s pro rata s hare? In CL pro rata share, $ s ettlement = 50%. In comparative fault system, D 2 still pays his share of percentage fault.

Phantom tortfeasors are not counted in fault apportionment CHAPTER 26 DAMAGES §1 Notes Past and future medical expenses Loss of earning capacity (inflation adjusted and investment reduced) Pain and suffering Plaintiff must usually be aware of her loss Capps exist for noneconomic damages (e.g. pain and suffering awards) §2 ADJUSTMENT IN DAMAGES ± Avoidable consequences (mitigation) rule P must exercise reasonable care to minimize damages ± Collateral source rule Collateral benefits (plaintiff insurance) is ignored when calculating damages. ± Subrogation protection Collateral rule preserves subrogation right of the insurer §3 PUNITIVE DAMAGES ± Serves a deterrence function ± SL: Punitive damages are warranted by conduct and state of mind, not legal theory. ± Measurement factors

1. reprehensibility of the defendant¶s misconduct 2. wealth 3. reasonable comparison to the compensatory damage ± Limiting punitive awards enhance the methods for measuring the awards limit the number of cases punitive damages may be awarded increase p¶s burden of proof requires proof of malice State Farm v. Campbell In determining the validity of a punitive damage award, consideration is given to the degree of reprehensibility of the defendant¶s misconduct, the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award, and the difference between the punitive damages award by the jury and the civil penalties authorized or imposed in comparable cases. Notes 1. Bad faith failure to settle within policy limits States generally hold that (1) an insurer has no obligation to pay more than its policy limit but (b) when judgment is likely to be much higher than the limit and insurer can settle for the limit or less, it must use good faith or reasonable care to protect its insured.  If it does not do so insurer may be liable for that judgment. 2. Out-of-state conduct has no relevance in assessing punitive damages. 3. Punishing injuries to nonparties cannot be a basis of calculating punitive damage.

It is a stormy night in a combined residential and commercial neighborhood in a predominantly white upper-middle-class section of a major city. The time is 10:30 p.m. Although most of the fashionable shops and boutiques in the neighborhood have closed, the

neighborhood bank contains an automatic teller. The machine is located in a lobby between two sets of glass doors; the first set opens directly into the bank and is locked at closing each day, while the second leads to the public sidewalk and remains open twenty-four hours. A middle-aged resident of the neighborhood enters the bank¶s lobby, inserts her bank card into the machine, and requests $200. As she waits for her transaction to be processed, the woman suddenly notices a figure moving directly toward the lobby from across the street. Focusing her full attention on the approaching figure, she notes that the person is a young man (at most twenty-something); that he is wearing a trench coat with an upturned collar and a tarpaulin hat pulled down even with his eyes (perhaps in deference to the pouring rain); and that he is black. The trench coat-clad young man glances down the deserted street as he reaches the lobby and then enters, pushing his right shoulder against one of the swinging glass doors. As he pushes the door open, he unbuttons the collar of his trench coat with his right hand and reaches into the coat in the direction of his left armpit. With his eyes focused on the space beneath his coat into which he is reaching, he takes hold of something and begins to withdraw it. Panic-stricken at the image before her and conscious of the rhythmic clicking of the automatic teller counting out ten fresh clean twenty-dollar bills, the woman pulls a pistol from her purse and levels it at the entering figure. As the young man looks up from his coat, he sees the pistol trained on him and reflexively thrusts his right hand²which now contains a billfold retrieved from his inside breast pocket²out in front of him while shouting at the woman not to shoot. Perceiving what she takes for a handgun thrust in her direction, together with the man¶s unintelligible loud shouts, the woman shoots and kills the black man.

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