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I. Intentional Torts a. Direct Intentional Torts i.

Battery- An actor must act with 1) intent or substantial certainty 2) to cause a harmful or offensive contact 3) and the harmful or offensive contact must occur. 1. Requires dual intent. 2. Intent or Substantial Certainty a. Requiring Fault i. There must be fault in order to prove liability. ii. Van Camp v. McAfoos 1. Rule- there must be fault in order to prove liability for battery. 2. was hit in the back of the legs by the on a tricycle. did not provide enough facts to suggest at fault. a. Corrective Justice- holds s liable only for the harms they wrongfully caused. Public Policy of Fairness. b. Intent i. Single Intent- intent to make contact. offenses against ones property. 1. Trespass, Trespass to Chattels, and Conversion. ii. Dual Intent- intent to make contact and the intent that the contact be harmful or offensive. Battery, Assault, FI. 1. White v. Muniz a. RULE- one must appreciate the offensiveness of their actions. b. had Alzheimers. She struck the in the face while trying to change her diaper. c. Jury was instructed that in order to find one liable for battery they must in addition to intending the harmful or offensive contact, appreciate the offensiveness of their actions. i. Court determined this was an adequate jury instruction. d. HYPO- is delusional and shoots his father-inlaw thinking he was a terrorist. Battery? i. YES. There was intent to shoot the father-in-law regardless of who he was. The being delusional doesnt matter because he intended to cause a harmful contact. 2. Mullins v. Parkview Hospital a. Rule- further establishes dual intent by requiring s to prove acted intentionally. b. did not consent to student () operating on her. given permission to intubate and lacerated her esophagus.

c. granted summary judgment b/c there was no material fact to indicate she intended to harm the . i. Just causing a harmful or offensive contact w/out intent is not a battery. d. Dual Intent- No indication intended to harm because she was acting under the directions of her superior and was therefore not required to obtain or inquire about the s consent. iii. Transferred Intent 1. Extended Liability Principle- the who commits an intentional tort is liable for all damages caused not merely those intended or foreseeable. 2. Stoshak v. East Baton Rouge Parish School a. RULE- transferred intent holds that the actor is still liable regardless if the harmful or offensive contact was not intended for the injured person. b. was attempting to break up a fight in school and a punch intended for the other student struck the and he lost consciousness. c. HYPO- you throw a beer bottle at a rock, miss and it hits someone else. Battery? i. NO. The battery was not intended for a person and there is no intent to transfer. c. Substantial Certainty 1. Garratt v. Dailey a. RULE- one must act with intent or substantial certainty to cause harmful or offensive contact. b. removed chair while was going to sit down. s liability could not be proven because there was no evidence of intent. Case remanded to determine if acted with substantial certainty that the was attempting to sit down when he removed the chair. d. Requirements of Proof i. A.R.B. v. Elkin 1. RULE- proving of sexual abuse allows for recovery of damagesdo not need to prove harm. 2. Children were sexually abused by their father who admitted to it, however, they did not provide any medical evidence showing emotional harm. 3. It is common knowledge that with sexual abuse comes harm and therefore one is not required to show proof of

emotional injury. proof that a battery or assault took place is sufficient in order to award damages. e. HYPO- you intend to squirt someone with a water gun and s skin has a reaction to the water. Battery? i. YES. Person squirting intended an offensive contact and should be liable for resulting harm. ii. Extended Liability- responsible for all damages not just those that are foreseeable or intended. 3. Harmful or Offensive Contact a. Offensive Contact- what a reasonable person would consider to be offensive. i. Exception- when people are informed and have agreed to a different definition of offensiveness then the new definition replaces reasonableness. b. Snyder v. Turk i. Rule- a person is subject to liability for battery when he acts intending to cause a harmful or offensive contact and when a harmful or offensive contact results. ii. became frustrated with , grabbed her shoulder and pulled her face to the surgical opening. argued he was not liable for battery because he did not cause harm by grabbing s shoulder and pulling her face to the surgical opening. liable for battery because his contact was offensive. iii. Defines what a battery is an intentional, un-consented to contact with another. iv. Reasonable Minds Test- whether a reasonable person would find the act offensive. v. HYPO- w/o getting frustrated or saying anything to , grabber her shoulder and pushed her face towards the wound. Offensive contact? 1. YES. The is not consenting to the touching her. c. Cohen v. Smith i. Rule- if there is an agreement to a new definition of offensive contact and that agreement is broken one is liable for the offensive contact. 1. The agreement suspends the reasonable minds test. ii. required C-section. It was against her religion to be seen naked by a male. Male nurse () assisted during procedure. liable for battery because his actions were offensive. iii. exceeded the s consent by assisting in the operating after being made aware of the newly agreed upon definition of offensiveness. 1. argued the s consent was unreasonable. a. Similar to Ashcraft which allows a patient to place limits on their consent to an operation.

iv. HYPO- Suppose the male nurse had walked into the operating room and saw the naked but did not touch her. Battery? 1. NO. There was no contact! Proving of a harmful or offensive contact is not enough to hold one liable for battery if there is no contact. d. HYPO- You have a germ phobia and dont want anyone to touch you. You board the T and someone pushes you out of the way. Battery? i. NO. The person could not reasonably have known about the germ phobia and therefore did not intend a harmful or offensive contact. e. HYPO- On the T with a backpack and someone behind you cant get by, grabs your backpack and pushes it out of the way. Battery? i. YES. Law recognizes that personal integrity includes things that are attached to a person. There was harmful/offensive contact because the backpack was attached to the person even though there was no direct contact with the person. ii. Assault- intent to cause apprehension of an imminent battery and the apprehension occurs. 1. Imminent- there will be no significant delay in the occurrence of a battery; does not mean immediate. 2. Apprehension- there is an awareness of an imminent battery; does not mean fear. 3. Requires dual intent. 4. Reasonable Minds Test- a reasonable person must believe that a battery will occur. 5. Cullison v. Medley a. was confronted in his home by Sandy, her father, mother, brother & brother-in-law. Father had a gun in his holster, mother kept her hands in her pocket to imply she had a gun. was verbally threatened and believed he would be harmed. 6. HYPO- Suppose a person sneaks up behind someone and hits them over the head with a baseball bat. Assault? a. NO. The person did not know they were going to be hit so there could not be any apprehension. battery not assault. iii. False Imprisonment- an intent to confine in a fixed space, confinement occurs, and the person confined is aware of the confinement or harmed by it. 1. Notion of Confinement- if a reasonable person believes they are being confined. a. Movement must be limited and w/in a confined space. 2. Requires dual intent. 3. Interest Protected- peoples mobility. the underlying goal of the tort of false imprisonment. 4. McCann v. Wal-Mart a. RULE- there does not have to be physical confinement. b. and her 2 sons were escorted to the rear of the store and guarded by a security officer while waiting for the police. confinement. did

not try to leave b/c she was under the impression the police were coming when in fact they were waiting for a store security official. awareness. 5. HYPO- Someone is locked in a ground floor room but it has a large sliding door thats not locked. Confinement? a. YES. A reasonable person would believe they are being confined in the room despite the door therefore their movement is limited. 6. HYPO- A person is on the 5th floor, door is locked but there is an open window. Confinement? a. YES. A reasonable person is not going to jump out the window to escape. Their movement is limited. 7. HYPO- Someones passport is revoked and they must remain in the U.S. Confinement? a. NO. Confinement requires a limited range of motion. Having the entire U.S. to roam is not a limited range of motion until their movement is restricted. 8. HYPO- Two people are in a room and one is making an unbearable noise. There are no windows. The noisemaking person walks out of the room knowing the door locks automatically when it is closed. False imprisonment? a. YES. The noisemaking person had the knowledge the door would lock behind them and this shows intent. The other person is now confined w/in the room and their movement is limited. 9. HYPO- Two people are in a room. There are no windows. One person leaves closing the door not knowing it would lock behind them and the other person will be locked in the room. False imprisonment? a. NO. FI is a dual intent tort the person who left the room did not intend to confine the other person even though the door locked behind them and the person was locked in the room. iv. Torts to Property- involve an element of force or physical intrusion, which makes them similar to battery, assault and false imprisonment. 1. Trespass to Land- intent to enter the land of another or to remain on the land after being asked to leave and entry onto the land of another occurs. a. Requires single intent- the intent does not need to be to trespass it is enough that the intended to enter the land. i. Exception- if one unintentionally enters the land and is asked to leave but refusestheir refusal is considered a trespass. ii. The right to exclusive possession is an abstract idea and it is harder to prove damage to the land so the mere fact that one is on it is enough to prove intent. b. Extended Liability- is responsible for all damages to the land even if he never intended harm or could foresee it. c. Protected Interesti. That land is real property. 1. Real Property- land or the buildings on it. ii. The rights of exclusive possession. 1. The right to exclusion.

d. HYPO- Kids are fooling around and carry another kid onto someone elses land and dump him into a pond. Is the kid a trespasser? i. NO. There is no intent b/c the kid was taken onto the land involuntarily therefore there was no intent to enter. e. HYPO- There is a brook that is a dividing line of property. crosses the brook thinking they were still on their land. Trespass? i. YES. Trespass is a single intent tort and the only intent needed is to enter onto the land of another. f. HYPO- There is a cat sitting on a fence between two peoples property and the cat is wailing. Someone throws a shoe at the cat and misses and the shoe lands on the other persons property. Trespass? i. YES. The person who threw the shoe knew that either it or the cat would land on the other persons property. 2. Conversion- intent to exercise substantial dominion over anothers chattel and the substantial dominion occurs. a. Chattel- any person or real property. b. Substantial Dominion- taking over ownership of the property for a reasonable period of time. c. Requires single intent. d. Damage must be serious. i. Ex. Throw a cat off the roof and it breaks its neck. e. Remedies i. Damages awarded based on the value of the chattel at the time of conversion. 1. The interference must be serious enough to justify damages. 2. Consider: a. Extent and duration of control. substantial dominion. b. s intent to assert a right to property. c. s good faith. d. The harm done. e. The expense of inconvenience caused. ii. Equitable remedy of an injunction may be granted requiring the property be returned. f. HYPO- You steal someones car and crash it. Conversion? i. YES. The person exercised substantial dominion over the car by taking it and destroying it. g. HYPO- A teacher takes a students tort book and throws it into the fire thinking it was hers. Conversion? i. YES. The teacher exercised substantial dominion over the book because she took it and it was destroyed in the fire. 3. Trespass to Chattels- intent to interfere with anothers chattel and the interference occurs and there is actual damage to the chattel or the other person is disposed of the chattel. a. Requires single intent.

b. Damages does not need to be serious. i. Ex. Throw a cat off the roof and it breaks its ankle and hobbles off. c. School of Visual Arts v. Kuprewicz i. Rule- one is liable for trespass to chattels only if the chattel is harmed or the owner is deprived of its use for a substantial period of time. ii. caused large volumes of unsolicited emails to go to the schools computers which resulted in depleted hard disk space, slower processing power and other negative effects. iii. had a valid cause of action for trespass to chattels. 4. Difference Between Conversion and Trespass to Chattels a. Conversion requires the exercise of substantial dominion and more severe damages; trespass to chattels is the interference with someone elses property. b. Defenses to Intentional Torts i. Self-Defense, Arrest and Detention, Defense of Property and Consent are dependent on plaintiffs conduct. ii. Necessity it not dependent on plaintiffs conduct. iii. Self-Defense- the privilege to use reasonable force to defend oneself against the threat of imminent assault, battery or confinement. 1. The amount of force used to defend oneself cannot be excessiveit cannot be greater than the force that is being used against you. 2. A reasonable person must conceive the other persons actions as an act of assault, battery or confinement. a. Public Policy of Deterrenceso people cannot claim self-defense for everything. 3. One cannot use self-defense to protect against an intentional tort to their property. 4. 3 Standardsa. Good Faith Belief- if that person in good faith believes they are in imminent danger. i. What was the person thinking when they chose to defend themselves. 1. Ex. Using a grenade to defend yourself against someone coming at you with a shard of glass. ii. Subjective inhibitions. b. Reasonable Belief- if a reasonable person believes they are in imminent danger. c. Actual Fact- it is an actual fact that the person believes they are in imminent danger. d. HYPO- Steve is working for a television show that pulls "harmless" pranks on random people. Filming one day, Steve enters a public park and walks up to a total stranger named Frank. He pulls out a fake gun and points it at Frank. Frank has no idea the gun is fake and that Steve has no intention of attacking him. Frank, who happens to be legally

carrying his own gun for self-defense purposes, pulls out his gun and shoots Steve. i. Reasonable Belief- A reasonable person would believe that Steve was committing an imminent battery against him, would consider it an imminent threat, and would respond with a proportionate amount of force. In this case, it appeared that Steve had a gun and was about to use it on Frank, so Frank defended himself with proportionate, reasonable force. The reasonable belief test for self-defense should work for him. ii. Actual Fact- In actual fact, Frank was in no danger. The gun was fake. It was a television show. Steve was in fact not going to attack Frank. And no "attack" in the sense of firing the gun and inflicting physical harm occurred. Even if you considered the drawing of a fake gun an attack in the sense that it was assault and Frank was put in imminent apprehension of a battery, according to the Actual Fact test, Frank's response would not have been proportionate. Therefore, Frank would not pass the actual-fact test for self-defense. iv. Arrest and Detention 1. Peters v. Menard a. Peters took a drill set out of the store and was approached by security officers and asked to go with them to speak with the manager. Peters ran off and drowned in a nearby river. b. The security officers were privileged by the state statute to follow Peters off the premises however the Restatement permits detention on premises. i. Both state statute and restatement have said there needs to be a reasonable belief that the merchandise has been taken in order to arrest or detain whether it be on or off the premises. c. Actual Fact Standard- Harder for store owners to use b/c they are not privileged to detain shoppers who they reasonably believed shoplifted. v. Defense of Property- you can use reasonable force against a trespasser but not force that can cause serious bodily harm or death. 1. Interest of the trespasser is protected because human life outweighs the interests and rights of a property owner. a. Exception- dwellings and warehouses are likely to be occupied and there is a recognition of the need to protect the lives of the people inside. 2. Katko v. Briney a. Rule- use of reasonable force. b. The s owned an unoccupied farm house and set up a shotgun trap because people routinely trespassed on the land. The trap went off and injured the . 3. Brown v. Martinez a. Rule- use of reasonable force.

b. s were trespassing in s watermelon patch. yelled to the children to leave and shot his gun in the opposite direction of the s. Unfortunately one of the s was injured. found liable for battery. c. is liable b/c he used an action that was not equivalent to the actions of the . vi. Consent- what a reasonable person would believe to mean consent. 1. Expressed Consent- explicitly gives consent. 2. Implied Consent- existence of consent may be implied from s conduct or the circumstances. 3. Consent Procured by Fraud- consent induced by false information is not valid even if the voluntarily participated in the touching. 4. Duress- if consents under duress the effectiveness of the consent will depend on the immediacy and seriousness of the duress. 5. Robins v. Harris a. Rule- difficult to prove consent when there is a discrepancy of power between the parties. b. The was an inmate and the was a guard who escorted the to the bathroom during a lockdown so she could perform fellatio. c. could not use consent as a defense b/c there was a power struggle between him and the . 6. Exceeding the Scope of Consent a. Ashcraft v. King i. Rule- patient has a right to limit consent for an operation. 1. Conditional consent. ii. consented to an operation on the condition that any blood being transfused was used from family-donated blood. The blood was used from the general supply and the contracted AIDS. iii. exceeded the scope of consent. iv. Similar to Cohen when made s aware it was against her religion to be seen by a male while the C-section was being performed. v. Public Policy of Justice b. Kennedy v. Parrott i. Rule- Public Policy of Administrative Expediency encourages self-reliant physicians to save money and time. 1. did not commit an intentional tort of battery because consent given to a major operation is given in a general manner and is not specific, conditional or limited. ii. consented to an appendectomy. During operation also removed cists on her ovaries. developed blood clots in her legs due to the removal of the cists. iii. never limited her consent for the operation.

c. Doe v. Johnson i. Rule- consent is not valid if it is induce by false information even if voluntarily partook in the touching. ii. engaged in sexual relations with and contracted AIDS. iii. Speaks to s substantial certainty of their actionsshould have known that he had HIV. vii. Necessity- the rights of the individual are not greater than the value of the benefit to the public and the threat must be immediate. a. Not dependent on plaintiffs conduct. 2. Surocco v. Geary a. Rule- public necessity allows one to use or destroy the property of another if one reasonably believes it will preserve communal property or life. i. The value of human life over property defense of property values the trespasser. b. s house was set fire by order of the in order to stop the spreading of a larger fire. Fire passed over the s house and continued burning. s lost property they were unable to retrieve. did not have to pay damages. 3. Ploof v. Putnam a. Rule- private necessity entry upon the land of another may be justified by necessity when one sacrifices the personal property of another to save his life or the lives of others. b. moored his boat to s dock during a storm. ordered servant to unmoor the boat. and his family were injured and the boat was destroyed. c. Conversion- exercised substantial dominion by unmooring the boat. d. Battery- dock owner should have known the s would be injured by unmooring the boat during a storm. substantial certainty. 4. Vincent v. Lake Erie Transportation a. Rule- when private necessity provides a valid defense to trespass the would-be trespasser must pay compensatory relief for the damage caused to the s property. b. s boat after unloading cargo signaled for a tug but one could not be found due to the storm. The s boat caused damage to the dock due to the way its lines were kept. had to pay damages. c. Dissent- boat in lawful position and should not be liable for the damages. d. Unjust Enrichment- protected his boat at the expense of the . i. was not privileged to keep his boat docked at the expense of the . e. Opposite of Van Camp- held liable for the damages even though they were not at fault and did what society would have wanted them to do. i. If goods lost at sea prices would go up; boat could damage others in the harbor.

ii. Strict liability. II. Negligence- conduct that creates an unreasonable risk of harm. a. Elements of a Prima Facie Case i. Duty- owes a reasonable standard of care. ii. Breach- breaches his duty owed to the . iii. Cause-in-fact- but for test. iv. Proximate Cause- foreseeability of the harm. v. Actual Damage b. Negligence over Strict Liability i. Encourages society to act b/c they arent worried about being held strictly liable for injuries when theyre not at fault. 1. Anti-deterrence- negligence law will encourage action and progress w/in society. ii. Unfair to hold someone liable in the absence of fault. Van Camp. c. Negligence law is about the efficient allocation of risk. d. Contributory Negligence- a who is negligent and whose negligence contributes proximately to their injuries is totally barred from recovery. i. Do not cite to anymore, not current view. e. Comparative Negligence- divides liability between and in proportion to their degrees of fault. is not barred from recovery but is reduced by a proportion equal to the ratio between his own negligence and the total negligence contributing to the accident. f. Duty- owes a reasonable standard of care. i. Duty is owed when one is acting in a way to impose risks on another. ii. Reasonable person exercises care only about the kinds of harm that are foreseeable. iii. Stewart v. Motts 1. Rule- is held to the standard of care of that of a reasonable person under similar circumstances. 2. assisted in repairing a transmission and poured gasoline into the carburetor. started the car, it backfired and was badly burned. 3. Reasonable care under the circumstances. a. Reasonable people act with more care when undertaking a dangerous activity. this does not increase the reasonable care standard. iv. Bjorndal v. Weitman 1. Rule- the standard of care is always that of a reasonable person. 2. was driving looking for her fathers broken down car. following behind her and saw s father waving his hands. looked around assuming there was an emergency. returned his attention to the road, slammed on his brakes attempted to pass on the left however she turned left as well and both collided. 3. Jury instructions said one is not negligent if they find themselves in an emergency situation it is ok to make choices that might not be the wisest choice that would be made in other circumstances. a. Supreme Court disagreed if emergency instructions given they must not condone unwise decisions b/c there was an emergencyneed to make a decision that is wise under the circumstances.

v. Creasy v. Rusk 1. Rule- the standard of care is always that of a reasonable person. 2. has Alzheimers and was trying to put him to bed and he was resisting. kicked in her left knee and hip causing her lower back to pop. 3. by taking that job should have been on guard for these types of circumstances and therefore should have exercised a higher standard of care to prevent injury to herself. a. Forseeability of her injuries by working in an Alzheimers facility. 4. No sub-categorization for people with mental disabilities. 5. Public Policya. Removes incentive to fake a disability for a defense. b. More administratively easy if one does not have to identify if someone has a disability or not. c. Deinstitutionalization- protects the rest of society. i. Opposite of Shepard. 6. Strict Liability vi. Chaffin v. Brame 1. Rule- one cannot be considered contributorily negligent when the consequences of their actions are unforeseeable or not reasonably assumed. Excused reason from stopping w/in lights. 2. was driving at night when an approaching car refused to dim their headlights. was blinded by the lights and ran into the s car which was left unlit on the side of the road. 3. The had no reason to believe the s truck would be on the side of the road and did everything possible to avoid the collision once he saw the truck. a. not contributorily negligent. vii. Exceptions 1. Motor Vehicles a. Marshall v. Southern Railway i. Rule- operator of a motor vehicle must exercise ordinary care. Rigid rule by court. ii. was driving at night when a car approached with bright headlights. ran into the railroad trestle supports. iii. The duty was on the to exercise due care and therefore the was not responsible for his injuries. 2. Physical Disabilities a. Shepherd v. Gardner Wholesale i. Rule- a person with a physical disability is required to exercise the same degree of care as a reasonable person with a similar disability would under the same circumstances. ii. has cataracts. She was walking down the sidewalk tripped over raised concrete. iii. Extra burden placed on the . must take into account the particularities of the many different reasonable persons. iv. Public Policy Social Utility

1. Social concern for people who have a physical disability. 2. Encourages people with disabilities to take part in society knowing they will not be held largely at fault. 3. Special Knowledge a. Hills v. Spark i. Rule- a person is held to the same standard of care as that of someone else with the same prior knowledge. ii. was an operator of earth-moving machinery. He was driving a machine and had his sister ride on it. She fell off and the machine ran over her. iii. liable b/c the risk was foreseeable due to his knowledge of the activity. 4. Children a. Robinson v. Lindsay i. Rule- a child is held to the same standard of care that a reasonably careful child of the same age, intelligence, maturity, training and experience would exercise under the same or similar circumstances. ii. lost full use of a thumb in a snowmobile accident in which the was the driver of. iii. If a child is engaged in an activity likely to impose significant risks to the rest of society the child should be held to a standard of reasonable care just like a reasonable adult under similar circumstances would. iv. Subjective Standard- narrow sub-group of reasonable people. 1. Lets children be children dont want to over deter children by making them liable for everything. b. Hudson-Connor v. Putney i. Rule- a child is not held to an adult standard of care when no adult skills were required. ii. Child operating a golf cart hit the accelerator accidentally and hit the breaking her leg. needed surgery. iii. Golf carts are not generally always operated by adults. viii. Limiting/Expanding Duty of Care 1. Landowners Duties to Trespassers, Licensees, Invitees & Children a. Either no duty or the duty owed was considerably less than the reasonable standard of care. b. Trespassers- on the land w/o permission. i. Gladon v. Greater Cleveland Regional Transit Auth. 1. Rule- a landowner owes a trespasser no duty except to avoid injuring him by willful, wanton or reckless conduct prior to discovering the trespasser. 2. was attacked and ended up on s train tracks. An approaching train began braking when they saw the s

shoes on the track but the train did not stop in time and the suffered serious injuries. 3. Discovered trespasser- there is a duty to use reasonable care in carrying out the activities on the landfailure to use reasonable care may be considered willful, wanton or reckless injury. c. Child Trespassers i. Bennett v. Stanley 1. Rule- The Attractive Nuisance Doctrine holds a landowner liable for harm to the child that was caused by an artificial condition on the land if: a. The landowner knows that the condition is located where children are likely to trespass. b. The landowner knows of the condition and realizes or should realize that it imposes an unreasonable risk of death or injury to children. c. The children do not discover the condition or realize its dangerousness. d. The utility of maintaining the condition and the burden of eliminating it do not outweigh the risk it poses to children. e. The landowner fails to exercise reasonable care to eliminate the danger or protect children from it. 2. The s neighbors allowed their pool to naturally turn into a pond. The s son fell into the pool and his mother attempted to save him but both drowned. 3. The doctrine applies only to children of grade school age and rarely to teenagers. d. Licensees- those who are on the land w/ owners permission but for limited purpose. i. Social guests. ii. Rule- a landowner owes a licensee no duty except to avoid injuring him by willful, wanton or reckless conduct and to warn them of dangerous conditions not obvious to the licensee. iii. Landowner may be liable to a licensee injured by a condition on the property where the land possessor knows of a dangerous condition on the property, fails to make the condition safe or to warn the licensee about the risk involved, and the licensee does not know about the danger nor would be expected to discover the dangerous condition. iv. Discovered Licensee- landowner owes a duty of reasonable care in carrying out the activities on the land.

e. Invitee- any person on the property in part for the pecuniary benefit of the owner or who is on the land open to the public. i. Person hired to take down trees, hospice workers, customers of a restaurant, mall etc. ii. Rule- a landowner owes an invitee a duty to use reasonable care. f. Open and Obvious Danger i. OSullican v. Shaw 1. Rule- when a danger is obvious to the reasonable person a landowner may reasonably assume the visitor has knowledge of it and is not required to warn them of the dangers. no duty rule. 2. The dived into the shallow end of the s pool and suffered injuries to his neck and back. 3. did not owe a duty b/c the type of injury was foreseeable under the circumstances. 4. did not breach a duty. Stinnett v. Buchelle g. Adopting a Reasonable Care Standard for Landowners i. Scurti v. City of NY 1. Rule- landowner owes a duty of reasonable care to all persons on their landit no longer matters if they are a trespasser or a licensee. 2. was electrocuted in a RR yard after crawling through a hole in the fence. h. The Firefighters Rule i. Has been applied outside the land as well as on it. ii. No longer limited to firefighters. iii. Does not apply to private individuals who may attempt to assist during a fire rescue doctrine says it is not contributory negligence or assumption of the risk to assist in a physical emergency. iv. Only bars recovery for injuries caused by the s negligence that created the risk. v. Minnich v. Med-Waste Inc. 1. Rule- precludes a firefighter from recovering against a whose negligence caused the firefighters injury while on the job. no duty rule. 2. was employed by Med U as a public safety officer and helped load medical waster onto a truck owned by the . notice the truck began rolling forwards, jumped inside and stopped it but suffered serious injuries. i. Recreational Use i. A landowner does not owe a duty of care to keep the premises safe for recreational use or to give any warning of dangerous conditions/structures/activities, which people enter onto to his land for such purposes.

ii. Landowners should be given immunity from liability for negligence in order to encourage them to permit the public to use their land for recreation. 2. Medical Malpractice a. What is the duty that doctors owe to patients? i. Not tested by cost benefit analysis. ii. The duty of care is that of another doctor in the same field. b. Crisis i. Medical malpractice claims do not raise costs, do not usually result in heavy damages or punitive awards and do not seem to be the cause of the crisis. ii. The problems seem to be access to the system, costs and errors. iii. Medical malpractice claims keep drs from admitting they made a mistake b/c if they do there is proof of a cause of action against them. c. Walski v. Tiesenga i. Rule- the standard of care is determined by the care customarily provided by other physicians under similar circumstances. ii. s operated on the to remove their thyroid. There was a known risk of damaging the nerve and a solution to avoid it. The s cut the nerve and the s vocal cords were paralyzed. iii. Necessary to use expert testimony to establish the medical standard of care. d. Vergara v. Doan i. Rule- the standard of care is the degree of care, skill, and proficiency which is commonly exercised by ordinarily careful, skillful, and prudent physicians in the same class. ii. The s son was born and the s claim the doctor caused their baby severe and permanent injuries. e. Hirpa v. IHC Hospitals i. Rule- a person who in good faith renders emergency care shall not be liable for damages resulting from their actions. Good Samaritan Statute ii. became unresponsive during labor. The responded unfortunately the died. iii. The statute is intended to encourage doctors to act w/o fear of liability. f. Specialists are held to the standard of care of other doctors in their specialty. g. Nurses are held to the standard of care of other nurses. h. Hospitals are held to national standards of care fixed by the Joint Commission on Accreditation of Hospitals. i. Pharmacists owe not duty to their clients to warn of side effects, an excessive dosage prescribed by the physician or that the drug is counter-indicated.

j. Non-medical practitioners are held to the standard of care professed in their schools not to medical standards. k. Res Ipsa i. The basis for medical res ipsa is that as a matter of common knowledge the s injury usually results from negligence. ii. States v. Lourdes Hospital 1. Rule- expert testimony may be used to assist the jury in determining if the incident that occurred usually takes place in the absence of negligence. 2. underwent an operation and claimed she was negligently anesthetized causing her injuries. iii. Ybarra v. Spangard 1. Rule- where a receives an unusual injury while unconscious and in the course of medical treatment, all those s who had any control over his body or the instrumentalities which might have caused the injury may properly be called upon to meet the inference of negligence by giving an explanation of their conduct. 2. underwent surgery and was unconscious. When he woke up he had pain in his arm and shoulder which he never had before undergoing surgery. 3. Possible only 1 breached a duty and the others used due care. a. Different from Summers b/c both s breached a duty. 4. All s can be held liable in the context of medical malpractice. a. Encourages those who did not breach a duty to come forth and say who did. b. Similar to Collins l. Informed Consent i. A person has the right to determine what will be done to their body and surgeon who performs an operation w/o patients permission commits an assault and is liable for damages. ii. Moves it out of battery and into negligence. iii. Harnish v. Childrens Hospital 1. Rule- a doctor owes to a patient the duty to disclose in a reasonable manner all significant medical info that the physician possesses or reasonably should possess that is material to an intelligent decision by the patient whether to undergo a proposed procedure. 2. underwent surgery and was not informed of the risks of the procedure and she suffered loss of tongue function.

iv.

v.

vi.

vii.

3. all significant medical info that is materialany info that would influence patients decision. a. HYPO- Suppose the dr knew the patient was an opera singer. i. The risk of loss of tongue function would be material b/c of patients occupation. 4. that the dr possesses or reasonably should possess a. knowledge of an average dr in the same field use expert testimony to prove 5. Patient based standard. 6. Encourages patient autonomy. 7. Causation- the must show that if they had the proper info they would have acted differently and that a reasonable person getting this info would have foregone the procedure. objective test for informed consent causation. Woolley v. Henderson 1. Rule- the standard of disclosure is that of a reasonable medical practitioner. 2. operated on s back and the suffered injuries similar to the risks of such a procedure but the was not made aware of the risks prior to the surgery. 3. Recent trend is moving in the direction of the Harnish rule. Wlosinski v. Cohn 1. Rule- a dr does not need to disclose their success/failure rate to a patient b/c they are not risks of the procedure. 2. sought out dr for kidney transplant surgery. The last 5 out of 7 surgeries performed by the had failed. The surgery was unsuccessful and the died. Arato v. Avedon 1. Rule- a dr does not owe a duty to disclose statistical life expectancy info to the patient b/c those are not risks of the procedure. 2. underwent surgery for his cancer. indicated to the he wanted to know the truth about his chances. The did not tell him the truth and the died w/o his affairs in order. Truman v. Thomas 1. Rule- a dr has a duty to disclose of the risks of refusing to undergo a procedure, if the patient indicates that is her intention. 2. was repeatedly advised by the to get a pap smear but never warned of the risks of not getting one. The died of cervical cancer.

3. Immunities a. Similar to limited duty rules. b. Family Members i. Spouse v. Spouse 1. Generally permitted but usually only in insurance cases. 2. Liability usually imposed for intentional torts. ii. Child v. Parent 1. Usually not permitted. 2. Terminated when child becomes an adult or is emancipated. 3. Liability usually imposed for intentional torts. 4. Goller v. White a. Rule- parental immunity should be done away with except when: i. When the negligent acts involve parental authority over the child. ii. When the negligent acts involve parental discretion over the child (food, water, clothes, housing, medical etc.) b. was a foster child in s home. allowed to ride on his tractor w/o warning him of the risks and the was injured. c. The rule bars most childrens claims of negligent parental supervision. 5. Commerce Bank v. Augsburger a. Rule- parental immunity applies to the s negligent acts. b. s confined , a foster child, to a shelf in a closet and did not supervise her. died. 6. Hoppe v. Hoppe a. Rule- parental immunity does not apply when the duty owed by the parent is owed to the public at large and not just the child. b. while in fathers care was given a hammer and an explosive nail cartridge. hit the cartridge w/ the hammer and was injured. iii. Charities 1. Traditional Rule- charities are not liable in tort. 2. Restatement 2nd- there is no charitable immunity a. Most states have abolished it by statute or judicial decision. iv. Government 1. Federal and state governments immune from tort actionsextends to all their agencies unless statutes prohibit it.

a. Federal Torts Claims Act i. Waived immunity for tort suits. ii. Mostly applies to negligent acts situations where a private person could also be found liable. iii. Waiver does not apply to many intentional/strict liability torts. iv. Waiver does not apply to injuries sustained in military service. v. Waiver does not apply to discretional functions. Ex. decision to build a dam. vi. To prevent second guessing of legislative/administrative decisions for social, economic and political decisions. vii. The law followed is state not federal. viii. US v. Olson ix. Rule- FTCA allows tort actions against US where if the US were a private person they would be held liable. x. s were 2 mine workers injured b/c federal mine inspectors were negligent w. inspections. xi. Feres v. US xii. Rule- FTCA provides immunity for injuries sustained in military service. xiii. Cases were consolidated b/c all 3 s were injured in some way while serving in US military. 2. Municipalities- not immune. 4. Nonfeasance a. A person does not owe a duty to act in order to protect another. i. Exceptions: 1. Restatement 3rd- if knows or has reason to know his actions caused harm to the then he has a duty to act and prevent further harm. 2. Restatement 2nd- if created unreasonable risk of harm they owe a duty of reasonable care to prevent harm from occurring. b. HYPO- Dawson saw a man approach a woman outside his window with a knife and grab her purse. The man beat the woman to death while Dawson watched. Womans family brought a wrongful death action against Dawson. Dawsons motion to dismiss the claim was granted. i. did not owe a duty b/c he was not acting. ii. Even if you can save someone w/ no risk to yourself the law does not require you to do so.

c. Yania v. Bigan i. Rule- there is no duty to rescue someone in peril unless the was legally responsible for placing the in the perilous position. ii. cut trenches in his property for mining coal. entered s property to assisting him in pumping the mines. fell in and drowned. d. Wakulich v. Mraz i. Rule- one who voluntarily renders aid to another must do so w/ due care and is liable for injuries caused in failing to do so. ii. lost consciousness from drinking too much and s provided aid by brining her to a couch and later on to a friends house. The was taken to the hospital but died. iii. Restatement 3rd- when discontinues aid, is liable if by acting unreasonably they leave the in a worse off position than before they rendered aid. iv. Restatement 3rd- a who renders aid and knows or should know it will reduce the risk of harm to the has a duty to use reasonable care in providing the aid if failure to do so would increase harm to the beyond what existed before giving aid. v. Restatement 3rd- 7 relationships requiring to use reasonable care for s safety: 1. Carrier-passenger. 2. Innkeeper-guest. 3. Landowner-lawful entrant. 4. Employer-employeewhen employee acting w/in scope of employment. 5. School-student. 6. Landlord-tenant. 7. Custodian-person in custody. e. Podias v. Mairs. i. Rule- a has a duty to act when their conduct places the in peril. ii. drove drunk and hit the while on his motorcycle. The driver and passenger left the scene w/o assisting the . The was later run over by another car and died. iii. The knowledge of peril, death or bodily harm to another which a might avoid at little cost to themselves creates a sufficient relationship to impose a duty of action. 1. Even where the danger was created through no fault of the . iv. The Court is trying to find some reason to hold the 2 passengers liable even though they werent driving the car.

f. DeShaney v. Winnebago County Social Services i. Rule- a public entity must have custody of another in order for there to be a duty to act. ii. made regular visits to and observed suspicious injuries but took no action to remove the from fathers care. Father beat the into a retarded state. 5. Duty to Protect from Third Persons a. Most relationships do not owe a duty to protect from third parties i. Innkeepers-invitee. ii. Landlords-invitee. iii. Common carriers-passengers. iv. Employer-employee. b. s Relationship w/ i. Marquay v. Eno 1. Rule- employees/employers acting in loco parentis have a duty to protect from a third party. 2. 3 female s alleged teachers/coach sexually abused them and that other teachers and employees knew or should have been aware of the abuse. 3. When school officials know of abuse by teachers/coaches and do nothing they are in violation of their duty of care. ii. Posecai v. WalMart 1. Rule- Balancing Testbalance the foreseeability of the harm against the burden of imposing a duty to protect against the criminal acts of third persons. 2. returned to her car in s parking lot. A man hiding under it grabbed her ankle and pointed a gun and robbed her of her jewels. The store was adjacent to a high crime area. 3. Basis for determining foreseeability in premises liability cases is if there were previous crimes on the premises or nearby. iii. Landlords have a duty to maintain common areas in a reasonably safe manner for tenants. c. s Relationship w/ Dangerous Person i. Dudley v. Offender Aid & Restoration of Richmond 1. Rule- owes duty of due care to people he knows are at risk and to those whose risk is foreseeable when there is a special relationship w/ or 3rd party. 2. Spencer a violent criminal was released to live in s halfway house. One night be broke into the s apartment beat, raped and strangled her to death. 3. Adds aspect of foreseeability to the general rule where duty is imposed on someone to protect someone else

from the dangers of a violent third party when the risk of injury is foreseeable. ii. Tarasoff v. Regents of UCLA 1. Rule- a therapist owes a duty not only to their patients but also to any foreseeable who are at risk of harm from their patient. 2. Poddar killed the and confessed his intentions to his therapist who and the was never warned of her risk of harm. 3. The duty to warn exists only when the patient communicates a threat to an identifiable person. iii. Brigance v. Velvet Dove Restraurant 1. Rule- One who sells intoxicating beverages for on the premises consumption has a duty to exercise reasonable care not to sell liquor to a noticeably intoxicated person. 2. served alcohol to groups of minor who drove a car intoxicated and collided w/ the causing his injuries. 6. Negligent Infliction of Emotional Distress a. If someone commits a physical injury tort they are also liable for any emotional injury that results. i. HYPO- Someone drops a house on a person and injures them and from then on they are afraid to go outside for fear of having a house dropped on them 1. That fear counts as emotional distress. b. Grube v. Union Pacific RR i. Rule- The essential elements for recovery under the zone of danger test are that must be within the zone of danger and suffer imminent apprehension of physical harm, which causes or contributes to the emotional injury. ii. was operating train when he saw a car stuck on the tracks and could not stop the train in time. suffered emotional distress and became physically ill. iii. did not establish he was in fear of harm at any time. c. Dillon v. Legg i. Rule- a bystander outside of the zone of danger may recover for emotional distress if: 1. is closely related to the victim. 2. is present at the scene of the injury and knows it is causing harm to the victim. 3. suffers emotional distress. ii. A mother observed her daughter get hit by a car causing her death. iii. Broad rule of factors where you can have a little of one and more of another many courts moving towards rule in Thing

d. Thing v. La Chusa i. Rule- a bystander outside the zone of danger may recover for emotional distress if: 1. is closely related to the victim. 2. is present at the scene of the injury and aware it is causing harm to the victim. 3. suffers emotional distress as a result. ii. was informed her son was hit by a car and rushed to the scene. iii. Turned the factors from Dillon into a rule and required all 3 be met. e. Burgess v. Superior Court i. Rule- a direct victim ( in a preexisting relationship w/ ) may recover for emotional distress. ii. Dr noticed while was given birth the cord was wrapped around the babys neck and decided to do a c-section. The baby suffered permanent brain damage. iii. Direct victims case based on a breach of duty assumed or imposed on the . iv. Relationships are important in determining the duty owed. ix. Negligence per se- allows substitution of a criminal statute for standard of care and violation of the statute is negligent. 1. Doctrine that describes standard of care. 2. No cause of action necessary. 3. Unexcused violation of statute determines the actors negligence. 4. Statute that does not create a duty for an identifiable class of people cannot have per se effect. 5. When applied by court, statue supplants common law standard of care and violation of the statute establishes breach of duty. 6. Does not apply to children. 7. Martin v. Herzog a. Rule- when one violates a criminal statute they are considered negligent. b. driving at night without lights on his buggy, hit another buggy and killed the driver. Illegal under statute to drive w/o lights on a buggy. c. Contributory Negligence- was negligent b/c they did not have lights on their buggy. d. Comparative Negligence- compare s negligence to s negligence and allocate damages to each. 8. OGuin v. Bingham County a. Rule- 4 Requirements of Negligence Per Se: i. Statute must clearly define the standard of conduct. ii. Statute must have intended to prevent the type of harm. iii. must be a member of the class the statute intended to protect. iv. Violation of statute must have been the proximate cause.

b. trespassed onto landfill on a day it was closed and no employees were there and was killed. Statute requires the to fence or block public access to the landfill when an attendant is not on duty in order to protect human health. violated statute therefore negligent. c. Dissent- statue not intended to prevent trespassers from injuring themselvesintended to prevent trespassers from dumping materials that may be harmful to health. i. Majority interprets health to include death. ii. Dissent interprets health to not include death. d. Statue replaces common law standard of care which is to use reasonable care. 9. Impson v. Structural Metals a. Rule- Restatement of Tortsexcused violation of state statute: i. Reasonable b/c of actors childhood, physical disability or physical incapacitation. ii. Actor didnt know nor should have known for compliance. iii. Actor exercises reasonable care in attempting to comply. iv. Emergency not due to actors misconduct. v. Compliance would involve a greater risk of harm to the actor or others. b. attempted to pass w/in 100 ft. of an intersection and struck the . Statute prohibits passing w/in 100 ft. of an intersection. c. s Excuses: i. Forgot the intersection was there. ii. Sign marking the intersection was small. iii. There were no lines to indicate no passing. iv. watching s car ahead of him which was off to the right. d. negligent b/c his actions were not excusable. g. Breach of Duty- owes reasonable care but breaches it. i. Pipher v. Parsell 1. Rule- actions must be foreseeable or preventable in order for there to be a breach of duty. 2. and driving in s car. Third passenger grabs the wheel and does nothing. Third passenger grabs the wheel again and the car hits a tree injuring the . 3. If actions are foreseeable and preventable and one fails to prevent those actions it is a breach of duty. ii. Indiana Consolidated Insurance v. Mathew 1. Rule- no breach of duty when harm threatened is that of serious physical injury. 2. was filling lawn mower w/ gas exercising due carepulled the mower away from the garage wall, used a funnel, filled it of the way, went home for 20 min. to let any spilled gas evaporate started mower and noticed a flame. left to call 911 and when re returned the garage was on fire. 3. not comparatively negligent b/c human life is valued over property.

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a. Serious physical injury could have been sustained if the attempted to move the mower out of the garage while the flames were lit. 4. Sudden Emergency Doctrine- requires that when one is faced with an emergency they must do what a reasonable person would under like circumstances. Pipher v. Parsell and Indiana Consolidated v. Mathew 1. Level of forseeability. 2. Alternatives. 3. Risk to others and selfhow serious or grave. 4. Precautions to avoid the risk. 5. Similar to Judge Leonard Hands BPL formula. Stinnett v. Buchele 1. Rule- the assumption that the employer has a better more comprehensive knowledge than the employee ceases when the employees means of knowledge of the dangers is equal or greater to that of the employer. 2. , a doctor, hired the to repair the roof on one of his barns. has previously worked on roofs before. did not supply with safety equipment and he fell off the roof and was seriously injured. 3. did not breach his duty and was not negligent b/c s prior knowledge of the possible dangers was greater than the s. 4. Not the s duty to supply with safety equipment b/c a reasonable person would not expect to be responsible for that b/c the had prior knowledge. Bernier v. Boston Edison 1. Rule- when considering breach of duty its important to consider the forseeability of the accident and the cost of prevention/alternatives. 2. was injured by a pole that fell on him due to an auto accident. The manufactured the pole. 3. The incident was foreseeable due to the large number of poles that have been knocked down in the past. 4. Alternative of stronger concrete. a. Risk to drivers increase if use stronger concreteRisk to pedestrians increase if dont use stronger concrete. polycentric problem. i. Risk more serious for pedestrians b/c they do not have a vehicle to protect them. 5. Alternative of hoops and spirals. a. Public Policy argument of Social Utility- increased price of electricity. United States v. Carroll Towing 1. Rule- 3 Principles to Determine Breach of Duty a. Probabilityforseeability of risk. b. Gravity of lossseriousness of injury c. Burden of precautionscost of alternative 2. Cargo owner is suing barge owner b/c bargee was not on board claiming accident could have been prevented b/c the bargee could have used the pumps to save the barge and cargo.

3. Formula: a. If the Burden>Probability x Injury not guilty of breaching their duty. b. If the Burden<Probability x Injury is guilty of breaching their duty and is negligent. vii. Proving Liability 1. Several Liability/Comparative Fault a. Deals with s negligence. b. No tortfeasor is liable for more than their proportionate share. 2. Joint and Several Liability-when more than one person is a proximate cause of s harm and the harm is indivisible each may be liable for the entire harm. a. Relationship between s and their degree of negligence. b. Either is liable for the full amount of damages. c. can choose which they want to suedoes not have to sue both. d. One tortfeasor could be responsible for all damages but they can collect contribution from the other tortfeasor.

A 80%

$2,000

1. Plaintiff $10,000 damages

B 20%

3. Santiago v. First Student a. Rule- must have a theory to prove negligence. b. was riding a school bus and claims it collided with another car causing her to hit her face against the seat. was unable to offer any details about the accident and could not remember the collision occur. c. s case was missing theory. d. The accusation that an accident happened is not enough to hold one liable for the supposed accident. 4. Thoma v. Cracker Barrel a. Rule- 3 Ways to Prove Slip and Fall: i. The must show that the premises owner either created a dangerous condition.

ii. Premise owner had actual or constructive knowledge of a dangerous condition. 1. Can be established by circumstantial evidence. iii. The operation on the premises makes it foreseeable that such an accident could happen. b. slipped and fell on a puddle of liquid in a common area near the entrance to the kitchen. Witness saw waitresses carry beverage trays but did not see any of them spill anything. c. Similar to Stinnettonce caution sign is put out the is absolved of some liability and it is now placed on the . 5. Wal-Mart v. Wright a. Rule- storewide manual cannot be introduced to show a standard of care. b. slipped and fell on a puddle of water in the outdoor garden area. Trial court admitted store manual to allow jury to determine if negligent based on a violation of any rule, policy, practice etc. c. Supreme court ruled the store manual could not be introduced to show a standard of care. i. Store manual may pose a higher standard of care than the reasonable standard but the reasoning for the higher standard is unclear. d. Figure out what level of care is reasonable as to safety. i. Dont know what the store manuals aims are. ii. The store manual is only relatable to Wal-Mart 6. Duncan v. Corbetta a. Rule- evidence of a custom may be used to show reasonableness. b. was injured when top step of an exterior wooden staircase collapsed. It was custom to use pressure-treated wood for outdoor staircases. used nonpressure-treated wood which was permissible under building code. i. This custom should have been used to show reasonableness. c. Departure from custom is evidence of negligence but a finding of negligence is not required. d. What custom proves: i. The harm was foreseeable therefore the activity was risky. ii. The knew or should have known of the risk. iii. The risk was unreasonable in the general opinion of the community. e. Difference between Duncan and Wal-Mart i. Duncan-the custom is general practice. ii. Wal-Mart- store manual belongs only to Wal-Mart it is not a general custom. 7. The TJ Hooper a. Rule- when there is no custom it does not mean one acts as a reasonable person.

i. Shows us what happens when one tries to use a custom argument. b. A barge was lost at sea b/c the tug boats were not equipped with receiving radios to alert them of the storm. c. Is there a custom that should tell us something about what the reasonable person should have done under the circumstances? i. Although it was not custom for an entire industry to have radios on tugs they still should be required. viii. Res Ipsa 1. 2 Elements: a. The accident ordinarily does not happen in the absence of negligence. b. The had exclusive controlthere was no negligence on behalf of the or a third party that would have led to the accident. 2. A doctrine that allows the jury to draw an inference of negligence from the mere happening of an accident. a. The mere happening of an accident could imply that someone has not acted reasonably. 3. Creates possibility of holding s liable w/o fault. strict liability. 4. Use res ipsa when does not have theory to prove s negligence. 5. Byrne v. Boadle a. Rule- the mere happening of an accident is evidence of negligence. b. was walking down the street and a barrel of flour hit him on the heading knocking him un conscious. The s shop was adjacent and the barrel appeared to have fallen or been dropped from the shop. c. Case should go to the jury to make an inference of negligence b/c this is a type of accident that doesnt happen in the absence of negligence. d. It is up to the to prove they werent negligent 6. Koch v. Norris Public Power District a. Rule- res ipsa is applied in the absence of a substantial or probable explanation. b. s power line broke and started a fire causing damage to s property. c. Element #1- the accident does not happen w/out negligence. 7. Cosgrove v. Commonwealth Edison Co. a. Rule- res ipsa not applicable when outside forces rather than negligence may have caused the accident. b. On a stormy night a power line fell. There was a gas leak which ignited the sparks from the downed power line creating a fire that damaged s property. c. cannot claim res ipsa against the power company b/c other forces besides negligence led to the downed power line. d. can claim res ipsa against gas company b/c gas leaks do not ordinarily occur w/o negligence. i. Element #1- accident does not happen w/out negligence.

8. Warren v. Jeffries a. Rule- res ipsa is not applicable when has an idea as to what possibly caused the accident. b. parked his car in the driveway. 5 kids piled into the back seat, they heard a clicking noise and the car began to roll backwards towards a ditch. One of the older children yelled to jump out. The jumped out but fell and was run over and killed by the car. c. Probability that the accident was due to negligence was reduced b/c did not use the evidence available did not have car inspected after the accident. 9. Giles v. City of New Haven a. Rule- the s use of the instrument does not bar the doctrine of res ipsa. b. was operating an elevator when the chain broke which caused the cab to shake and the to hit her head and shoulders. She directed the elevator to the nearest floor and jumped out sustaining more injuries. had exclusive contract with building to maintain and inspect the elevator. c. Exclusive control is a way of proving the s responsibility. i. The had a long standing contract w/ the building to maintain the elevator. 10. Collins v. Superior Air-Ground Ambulance Service a. Rule- if more than one person has exclusive control a case can be brought against both under the doctrine of res ipsa. b. was transported to and from rehab center. When she arrived home her daughter noticed she was suffering and it was determined she was dehydrated and sustained a broken leg either from transport or her stay at the rehab. c. The s case can go to the jury under res ipsa b/c only the s know what happened. jury can hold both liable. d. In a case of serial or consecutive control the occurrence of injury does not usually show which was negligent or that both were. h. Causation i. Cause in Fact- when the cause and effect chain of events leading to s injuries includes s tortuous conduct. 1. The injury would not have occurred but for the s conduct. 2. Issue 1- Did the s breach of duty contribute directly to the s damages? a. HYPO- a tanning facility in which the s employees mistakenly turn up the dial too far and someone one gets burned. Next day discovers she has liver cancer. i. Have to show that liver cancer is causable by too much tanning in order to hold liable. ii. Just b/c caner appeared simultaneously does not mean it was actually caused in some scientific way by the tanning.

3. Issue 2- If multiple s breach of duty contributed to the s damages can they all be held liable? How do you allocate the damages? a. Use the doctrine of joint and several liability b. HYPO- s on bike and they collide with who suffers broken leg and ruptured spleen. i. Maybe you can identify which cyclist caused the broken leg. Spleen may be harder to identify. 4. But-For Test a. Hale v. Ostrow i. Rule- the plaintiff must establish that but for the defendants conduct their injuries would not have occurred. ii. s bushes had overgrown on the sidewalk making it impassable. The thus had to step into the road. tripped on the crumbled sidewalk as she was checking for traffic. iii. s breach of duty directly contributed to the s damages. b. Salinetro v. Nystrom i. Rule- the plaintiff must establish that but for the defendants conduct their injuries would not have occurred. ii. was in a car accident and the dr. treated her by taking x-rays of her back. The was unaware she was pregnant at the time and had to have an abortion. iii. s duty was not to determine if the was pregnant before the x-rays were taken. 1. no breach of duty. c. Two Persons Causing Separate or Divisible Injuries i. As long as the two injuries are separate liability can be apportioned by causation. each tortfeasor will be liable only for the harms they caused and no more. d. Two Persons Causing a Single Indivisible Injury i. HYPO- A negligently runs into a horse and leaves it on the highway. B negligently runs into the carcass injuring his passenger. 1. But-for As negligence the accident would not have occurred. 2. But-for Bs negligence the second collision would not have occurred b/c he would have stopped or taken evasive action to avoid hitting it. 3. Both A and B are but-for causes of the passengers injury and both are subject to liability. ii. Cant apportion liability by causation. 1. Must use fault apportionment a. Joint and several liability with contribution or proportionate fault liability.

e. Landers v. East Texas Salt Water Disposal Co. i. Rule- when two or more wrongdoers commit an indivisible tortuous act all the wrong doers will be held jointly and severally liable for the entire damages. 1. Injured party may seek judgment against all or any one of the wrongdoers. ii. owned a small lake stocked with fish. East Texas pipes broke and flooded s pond w/ salt water killing his fish. Sun Oils pipes burst and also flooded the s pond with salt water and oil. iii. Court said it does not matter whether can prove causal connection. iv. Joint and several liability takes us away from causation and focuses on responsibility. 1. Both East Texas and Sun Oil breached a duty Both can be held liable for the full amount of damages 2. In order to invoke the doctrine of joint and several liability the will have to show that the amount of water that came from both companies was sufficient to kill all the fish. f. Anderson v. Minneapolis, St. Paul and St. Marie RR i. Rule- the substantial factor test requires that the s actions contributed to the s injuries in order to prove cause in fact. 1. Similar to the rule in Right where there must be actual damage in order to prove a negligence claim. 2. The test is used when there are multiple s. ii. s engine set fire in August. s property was burned in October and argued that fire in August smoldered until it burned the s property. offered proof there were other fires sweeping the area and one of these might have burned the s property. iii. was still responsible for the s damages even though a man made fire combined with a natural fire and the natural fire would have damaged the s property alone goes a step further than joint and several liability. iv. HYPO- a non-negligent fire burned a house first and the s fire burned it a week later after everything was destroyed. 1. not liable b/c there is not proof of damages. g. Increased Risk Situations i. Anderson and Landers ii. HYPO- a swimming pool has a fence around it and the owner of the pool forgets to lock the fence. Child opens the door, walks in and drowns. Is the homeowners breach of duty in failing to lock the fence the cause of the childs injury?

1. Difficult to show causationif the risk created by breach of duty is exactly the type of injury that happens the can get to a jury and they can infer causation. OGuin. iii. HYPO- 1 is driving down the road and hits a large animal killing it and leaves it on the road. This doesnt injure anyone but creates a higher risk for 2 who comes driving negligently and does not see the animal, swerves and injures a passenger or pedestrian. 1. Both are liable b/c 1 created a type of accident that 2s negligence produced. indivisible injury. 2. One created a risk that the other completes. iv. HYPO- 2 s challenging each other to a drag race down Comm. Ave. One injures the . 1. b/c s agreed and acted in concert both are liable joint and several liability. a. Summers 2. Consciously acted together creating a joint risk. h. Proof of Cause i. Dillon v. Twin State Gas 1. was on a bridge and high voltage wires were in front of him. lost his balance, reaches out grabbing onto the wires is electrocuted, dies and falls to the ground. 2. Question of what injury was caused? a. Did the electrocution cause the loss of the s life or simply the loss of a few additional minutes of it? ii. Summers v. Tice 1. Rule- the burden of proof regarding causation is shifted from the to the s when they have simultaneously engaged in conduct imposing risks on the . 2. Two hunters negligently fired pellets in the direction but the was only hit by one. 3. HYPO- one or more truckers spill a hazardous material when making deliveries. All 7 truckers are sued. It was proved that one of the truckers spilled the material. a. different than Summers b/c we dont know if all the truckers breached a duty. iii. Lord. v. Lovett 1. Rule- loss of opportunity doctrine allows a to recover when their preexisting injury is aggravated by doctors negligence. 2. suffered broken neck in automobile accident and alleges the s negligently misdiagnosed her injury and

did not properly administer therapy causing her to loose a substantially better recovery. 3. 3 Ways to Handle Loss of Opportunity: a. Traditional- must prove that as a result of the s negligence they were deprived of at least 51% chance of a more favorable outcome than they actually received. b. Causation requirement relaxed and s may submit their claim to a jury by showing s negligence more likely than not increased harm or destroyed a substantial possibility of achieving a more favorable outcome. c. needs to establish causal link between their lost opportunity and the s negligence. i. may recover for the lost opportunity of a better outcome and may receive damages only for this. i. Proximate Cause- foreseeability of the risks. i. Test- whether damages occurred were within the scope of the risk of the s conduct. ii. Policy/Justification for the Risk Rule 1. The rule is pragmaticliability must stop somewhere. a. The but-for test would leave people exposed to liability as long as they lived. 2. It is just and logical. a. If liability only for negligence, and negligence creates a risk of harm Athen liability should be limited only to harm A. i. Any other result would create strict liability. iii. HYPO- , a doctor, negligently performed a vasectomy and the man fathered a child. The child set fire to the s garage. 1. The doctor is not liable for the damage to the garage because it was not a foreseeable risk of his negligent vasectomy. iv. Scope of Risk 1. Medcalf v. Washington Heights Condos. a. Rule- the injury must be w/in the foreseeable scope of risk created by the s negligencemust establish a necessary relationship between the action and the injury. i. Test if the injury would be foreseeable if it wasnt for the s negligence. b. Buzzer system for Condos was negligently maintained and the was forced to wait to be let in. While waiting she was attacked and suffered injuries. c. The s injuries were not a foreseeable risk of negligently maintaining a buzzer system to let people into the building unforeseeable injury. 2. Abrams v. City of Chicago

a. Rule- the injury must be w/in the foreseeable scope of risk created by the s negligence. b. The failed to dispatch an ambulance for the whose contractions were 10 min. apart. The s friend drove her to the hospital, ran a red light and was hit by another driver. The was in a coma for 2 weeks and the child died. c. Take the breach of duty and think of the reasonable risks the one could foreseean injury occurring from a risk you did not foresee is not the proximate cause of the injury. 3. Palsgraf v. Long Island RR a. Rule- the must be w/in the foreseeable class of persons likely to be injured by s negligence. b. was standing on the platform when the guard assisted a passenger onto the train. In doing so, the passenger dropped his package, which contained fireworks. It exploded and injured the . c. Unforeseeable . d. Look at foreseeability of the given the s negligence in the situation. 4. Medcalf and Palsgraf a. The is liable only for harms w/in the scope of risks he negligently created i. The types of injuries foreseeably risked by his negligence. ii. To classes of person foreseeably risked by his negligence. b. The is not liable unless a reasonable person in s circumstances should have foreseen that his conduct risked injuries of the same general type that occurred to a general class of persons which the is w/in. 5. The Rescuer Doctrine a. The rescuer can recover from the whose negligence prompts the rescueeven when the injures himself and the is injured in rescuing them. v. Manner of Harm 1. Hughes v. Lord Advocate. a. Rule- the manner in which the harm occurs is insignificant in assessing the risk. b. s left a manhole unguarded. 2 boys descended into the hold and when the came up unharmed, they knocked the lantern into the hole, it exploded and the was severely burned. c. You do not have to foresee the exact chain of events that results in injury. 2. Doughty v. Turner Manufacturing a. Rule- the manner in which the injury occurs does not matter as long as the injury is the type that happens from the s negligence. b. A vat cover was knocked into the molten liquid and no splash occurred. A couple minutes later the vat exploded and the was severely burned. c. Exception to the general rule in Hughes

vi. Extent of Harm is Unforeseeable 1. Hammerstein v. Development West a. Rule- is liable for the full extent of s harm even where the extent of that harm was unforeseeable. b. negligently maintained their fire alarm. The , who has diabetes, was forced to walk down the stairs, broke his ankle and suffered gangrene from a blister. 2. Thin Skull Rule a. Take the as you find themthe fact that the harm was much worse than expected does not limit the from liability b. Does not impose liability w/o fault. c. HYPO- negligently strikes and the punch is that a normal person would suffer slight injury but the has a thin skull which the is not aware of and suffers terrible injuries. vii. Acts of an Intervening Person or Force 1. Intervening- lies w/in the scope of the foreseeable risk or has a reasonable connection to it. a. Should relieve the original of liability only when the resulting harm is outside the scope of risk negligently created by the original . 2. Intentional/Criminal Intervening Acts a. Watson v. Kentucky & Indiana Bridge & RR i. Rule- is not liable for anothers intervening actions if they are unforeseeable. ii. negligently derailed a gasoline tank car, it began leaking and someone threw a match and the gas exploded injuring the . b. Delaney v. Reynolds i. Rule- is liable when the intervening cause is foreseeable, the causal chain of events remains intact and the original negligence remains a proximate cause of s injury. ii. , s boyfriend, kept his loaded police gun in the house where the lived knowing the had drug problems and was depressed. attempted suicide however was only seriously injured. iii. The traditional rule states that the purposeful act of suicide will be deemed the legal cause of a decedents injury unless the s negligence rendered the decedent unable to appreciate the selfdestructive nature of the suicidal act or is unable to resist the suicidal impulse. iv. Restatement 2nd holds 2 exceptions to the traditional rule: 1. When s tortuous conduct induces a mental illness in the which the suicide attempt results the is liable. 2. When there is a special relationship between 2 parties in which the knows of the s risks of suicide the is liable. 3. Negligent Intervening Acts

a. Derdiarian v. Felix Contracting i. Rule- an intervening act is not a superseding cause when the risk of the intervening act is the same risk that renders the actor negligent. ii. negligently constructed a barrier protecting a vat of liquid enamel. A car drove through the barrier and the was covered with the enamel and severely burned. iii. Manner of harm irrelevant b. Ventricelli v. Kinney System Rent A Car i. Rule- the harm from the risk must be unforeseeable under the circumstances making the negligent act outside the scope of risk and a superseding cause. ii. rented a car to the with a broken trunk. pulled over in attempts to close the truck and was hit by a car. iii. The actions of the car are a superseding cause because the harm suffered by the was outside the scope of risk of the s negligence in renting a car w/ a broken trunk. iv. If the extent of harm was not increased by the s actions anymore than what they would have encountered the did not breach a duty. c. Marshall v. Nugent i. Rule- when the negligently heightens the risk to the and the is injured then the s actions are the proximate cause of the s injuries if they are foreseeable. ii. s truck ran s car off the road. Defendant stopped to help Plaintiff and told him to direct traffic. Another car stuck Plaintiff while attempting to avoid hitting Defendants truck. d. Most courts agree that when a causes harm to a person they are liable for any enhanced harm caused by negligent provision of aid including medical treatment. j. Actual Damage- legally cognizable harm i. There must be proof of harm. ii. must prove the damages claimed were caused in fact by the . iii. Damages are compensatory and limited only by evidence. iv. Right v. Breen 1. Rule- must establish damages in order to have a negligence claim. 2. stopped at red light and struck from behind by . No physical injuries were reported at the scene. later brought action alleging he suffered bodily injury from the accident. 3. HYPO- A and B get in a verbal altercation, B gets mad and intentionally spits in As face. Doe A have a battery claim against B? a. Yes b/c there was harmful or offensive contact you have a cause of action in an intentional tort even if you cant show specific harm. i. You have a case of action w/o there being any specific damages.

v. Personal Injury Torts 1. Punitive damages are warranted in some cases where the s conduct was willful, wanton, reckless or malicious. 2. Nominal damages are not awarded. 3. Awardable Damages: a. Reasonably incurred medical expenses. b. Lost earning capacity or wage loss. c. Pain and sufferingincluding mental pain and suffering. d. Cost of medical monitoring of the s condition to intercept a prospective disease e. Any other specifically identifiable harm. 4. When a is aware of their lost ability to pursue lifes pleasures damages are generally awarded for that loss. 5. When a is not aware of their lost ability to pursue lifes pleasures damages are generally not awarded for that loss. 6. Martin v. United States a. Rule elements considered in calculating damages in a negligence claim: i. Past and future medical expenses. ii. Present value of lost future earning capacity. iii. Pain and suffering. iv. Interference with normal and usual activities. v. s were riding a motorbike when they struck a sagging power line negligently maintained by the government. Both suffered severe a permanent injuries k. Defenses of Negligence i. Contributory/Comparative Negligence 1. Contributory Negligence a. Butterfield v. Forrester i. Rule- when the acts unreasonably and those actions led to his harm they will be found contributorily negligent and barred from recovery. ii. left a pole across the road. The was negligently riding his horse very fast did not notice the pole and fell sustaining injuries. 2. Comparative Negligence a. Compare the s negligent conduct with the s negligent actions and determine how much if anything the should recover. b. Most courts have moved away from contributory negligence and adopted a comparative negligence standard. c. Pure Comparative Fault- not barred from recovery but receives a lesser award of damages based on their degree of fault. d. Modified Comparative Fault- if the s negligence is greater than 50% they are barred from recovery. e. Crownover v. City of Shreveport i. Rule- Factors Considered in Assigning Degree of Fault

1. Whether the conduct resulted from carelessness or an awareness of danger. 2. The risk created by the conduct. 3. The significance of what the actors sought from their conduct. 4. The actors capacities. 5. Extenuating circumstances requiring the actors to proceed hastily. ii. A PO ran a red light then put his lights and siren on. The proceeding through the green light hit the police car and suffered injuries. f. Restatement 3rd Apportionment of Liability (prevailing view) i. The persons conduct including awareness of the risks created by the conduct and any intent w/ respect to the harm created. ii. The strength of the causal connection between the persons risk creating conduct and the harm. g. Wassell v. Adams i. Rule- weigh the cost to the of avoiding the accident against the cost of the of avoiding the accidentthe party w/ the lower cost would be more negligent. ii. was sexually assaulted by a man while staying at the s hotel. h. McNamara v. Honeyman i. Rule- is not comparatively negligent when it was the s duty to protect them from self-harm. ii. was mentally ill and hanged herself while in a state hospital. i. Christensen v. Royal School District i. Rule- when the stands in a special relationship w/ the child and owes a duty to protect the child then the child is not comparatively negligent for their injuries. ii. , 13-yeard-old student was sexually abused by the , a teacher at her school. iii. A child is not comparatively negligent when they have no duty to protect themselves. ii. Assumption of Risk- may be barred from recovery if they knowingly and voluntarily assumed the risk of any damages caused by the s acts. 1. Based on s conduct. 2. 3 types: a. Expressed- what the did or knew about the risks and did they voluntarily waive them. i. rose out of contractual underpinnings. ii. Does not need to be in writing. iii. must expressly waive their right to sue. b. Implied- what would a reasonable person have done under the circumstances? i. Indistinguishable from contributory/comparative negligence

c. Primary- another way of saying that the did not breach a duty. 3. Expressed Assumption a. Boyle v. Revici i. Rule- must knowingly and voluntarily assume the risk in order to be barred from recovery. ii. had cancer and was treated by a dr that did not use a medically acceptable method. The dr made the aware of this yet she still voluntarily underwent the treatment and die w/in 1 year. b. Tunkl v. Regents of UCLA i. Rule- b/c of a hospitals superior bargaining power and the essential services they provide, they may not use signed release forms to bar s recovery. ii. was admitted to the hospital on the condition that he sign a release form absolving s of all liability for their negligent acts. iii. usually does not voluntarily waive their right to sue. c. Moore v. Hartley Motors i. Rule- an exculpatory release can be enforced if the intent is to release a party from liability for future negligence is obvious and clear. ii. signed a release form to partake in an ATV safety course. The was injured while completing the course. 4. Implied Assumption a. Betts v. Crawford i. Rule- contributory negligence and implied assumption of risk are merged when raised as a defense to a breach of duty. ii. The was a housekeeper for the and tripped over the childrens toys sustaining injuries. 5. Primary Assumption a. What was the duty owed by the and was it breached? b. Avila v. Citrus Comm. College i. Rule- in recreational activities there is a primary implied assumption of the risk by the and the s duty is not to increase the inherent risksdont be reckless. ii. was hit by a pitch and suffered personal injuries. iii. The rule establishes a lower duty of care making it harder for the to prove negligence. c. Open and Obvious Danger i. Stinnett v. Buchele 1. not responsible for roofers injury b/c roofer has more knowledge about roofing. 2. did not breach a duty b/c he could reasonably expect the roofer to care for himself. ii. OSullivan s. Shaw

1. did not breach a duty b/c the could expect the to see that they were diving into the shallow end of the pool. iii. Statute of Limitations 1. Does not focus on s conduct. 2. Requires to sue w/in a reasonable amount of time from when the incident took place. a. Cause of action accrues when the knows that all the elements of the c.o.a. are met. i. Discovery rule- the cause of action does not accrue until the knows or should have known of the underlying facts necessary to prove each element. 1. Delays the claim until all elements of the tort are present and the discovers both the injury and the s role in causing it. 3. Intentional torts 1-2 yrs., negligence 3-5 yrs. 4. Bars old claims which may be unfair or costly b/c evidence is lost or altered w/ time. 5. Cumpton v. Humana a. Rule- the statute of limitations begins running from the date of the injury or the date of the alleged malpractice. b. underwent surgery and was injured when her bed was being lowered. She brought suit more than 3 yrs later. 6. Shearin v. Lloyd a. Rule- the statute of limitations begins running when the can sue on a claim. b. removed s appendix and left a sponge in his stomach. The suffered an infection and required another operation. 7. McCollum v. DArcy a. Rule- statute of limitations is tolled when the has repressed memories of the incident. discovery rule. b. recalled of sexual abuse as a child when she attended a child abuse workshop. She was 50 yrs. when she brought the suit. 8. Doe. v. Maskell a. Rule- ignorant repression is equal to forgetting and will not activate the discovery rule in order for the statute of limitations to be tolled. b. The s attended a parochial high school in the 1960s/70s and were physically, mentally and sexually abused. They brought suit in 1992 claiming they repressed their memories until now. 9. Preemption and Compliance w/ Statute a. Statute requires minimum due caresometimes due care goes beyond statute requirement as set by custom or reasonableness. b. Miller v. Warren i. Rule- compliance with a regulation does not constitute due care per se.

ii. s suffered burns in their motel room by awaking to smoke. There were no smoke alarms in the room and the fire code did not require them. iii. If s know or should have known of a risk that would have been prevented by some reasonable measures not required by regulation they are negligent if they do not take such measures. iv. Circumstances may require greater care if the knows or should have known of other risks not contemplated by the regulation. III. Strict Liability a. Liability in which there is no negligence or intent. b. Restatement 3rd i. There is strict liability w/o proof of negligence if: 1. The s activity creates a reasonably foreseeable and highly significant risk of physical harm even where reasonable care is exercised. 2. The activity is not one of common usage. ii. Strict liability is appropriate where the victim was uninvolved. iii. If reasonable care would reduce the risks then strict liability does not apply. iv. If the activity is common strict liability does not apply. common usage rule. c. Writ of Trespass i. Forcible harm done directly by the 1. Intentional torts 2. Negligence 3. Non-fault or wrongful actions 4. Question of whether forcibly and directly harmed the . ii. Intent and negligence not required. d. Writ of Trespass on the Case i. Includes indirectly caused injury. 1. Some negligence injuriesButterfield v. Forrester ( left log on the road negligently rode into it) e. Trespass by Barnyard Animals i. Strict liability tort ii. Conflicting uses- where an area is dominated by ranchers and ones cattle gets out the cattle owner is not liable where as an area is dominated by farmers and ones cattle get out they are liable for damages. iii. HYPO- As cattle escape from his barn and wander onto Os property. 1. A is strictly liable for any trampling damage the cattle may do. 2. Jurisdictions where ranching predominates tend not to have strict liability for this tortopposite in jurisdictions where farming predominates. f. Nuisance i. Interference w/ use and enjoyment of the land.

g. Abnormally Dangerous Activities

i. s activities creates a reasonably foreseeable and highly significant risk of physical harm even where reasonable care is exercised by all actors and the activity is not one of common usage. conflicting uses. ii. Rylands v. Fletcher 1. Rule- strict liability is imposed on one who brings a hazardous nonnatural activity onto their land and it escapes and causes damage. 2. s built a lake on their land in which the planned to operate a mill. Water from the lake escaped and flooded and damaged the s mine. h. Vicarious Liability i. A can be held liable for Bs tortuous acts even though A is not negligent in any way. ii. Respondeat Superior- employers responsibility for the torts of its employees committed w/in the scope of employment. 1. Riviello v. Waldron a. Rule- employer is liable for the torts of his employees if theyre committed w/in the scope of employment. b. Employer was liable for the s when he injured the by accidentally striking him w/ a knife in the eye. 2. Fruit v. Schreiner a. Rule- employer is liable for the torts of his employees if theyre committed w/in the scope of employment. b. Fruit attended a convention required by him employer. He attended a bar after the convention and on his way home struck and injured Schreiner. c. Enterprise Liability- price of goods and activities should reflect the accident costs they cause. i. Holding enterprise strictly liable facilitates internalizations of costs which reduces costs of accidents. ii. The market will tend to favor the cheaper product giving an incentive to companies to make their products and activities safer. IV. Products Liability a. Those involved in commercial distribution of products are potentially liable for product caused harm. b. can bring a claim on a contract theory for breach of warranty or on tort theories of negligence, strict liability or fraud. c. Looks at the product itself. d. s Causes of Action i. Negligence- if the manufacturer was negligent and the risks were foreseeable then the manufacturer is liable. 1. Privity Rule- basis for liability was the duty undertaken in a contract of sale and the manufacturer was only liable to buyers in privitythose he directly sold to. 2. Focuses on s conduct. ii. Strict Tort Liability 1. Focuses on the product. 2. Elements of a Strict Liability Claim:

a. Prove the product was defective. b. The defect was an actual and proximate cause of the injury. c. The product was defective when it left the s hand. iii. Products liability began as a strict liability tort w/ manufacturing defects and has slowly moved towards looking more like negligence w/ the introduction of design and information defects. e. Rationales i. Consumer Expectations- consumers rely on manufacturers representations of the products. ii. Enterprise Liability- loss spreading forces manufacturers to create safer products if products costs are to represent the costs of accidents they cause. iii. Practicality- since most defective products are made that way the court is saved time by not having to prove negligence. iv. Fairness- manufacturer should incur costs of injury b/c they enjoy the advantages of putting their products on the market. 1. Non-reciprocal Risks- manufacturer imposes risks on the consumer, which the consumer cannot impose on the manufacturer. v. Deterrence- if strict liability imposed manufacturers will make products safer in order to avoid liability costs. f. Manufacturing Defects i. Usually affect a small percentage of a manufacturers product in a particular line. ii. Restatement 2nd- a product contains a manufacturing defect if it exceeded the dangers a reasonable consumer would expect. consumer expectation test. 1. Imposes strict liability. a. Focuses on the product itself iii. Restatement 3rd- a product is defective when it departs from the manufacturers intended design even though all possible care was used in preparation and marketing. 1. Moves away from strict liability. iv. Lee v. Crookston Coca-Cola Bottling Co. 1. Rule- the can use res ipsa to get to the jury and rely on circumstantial evidence in which it can be inferred that it is more probable than not that the product left the manufacturer defective. 2. was a waitress and was injured when a coca cola bottle exploded in her hand. v. Jackson v. Nestle-Beich Inc. 1. Rule- consumer expectation test determines defectiveness based on whether the product was dangerous beyond what the consumer expects Restatement 2nd. 2. broke a tooth on a hard pecan shell embedded in the candy they purchased. g. Design Defects i. Restatement 2nd 1. A product is defective if it was more dangerous than the ordinary consumer would expect consumer expectation test. OR 2. Risk Utility Test- weigh the likelihood of harm, the gravity of harm and the cost of preventing the harm by using a different design. a. If the likelihood of the harm and the cost of preventing it is higher than the gravity of the harm then the product does not have a design defect.

ii.

iii.

iv.

v.

vi.

b. If the likelihood of the harm and the cost of preventing it is lower than the gravity of the harm then there is a design defect. c. Same reasoning in BPL formula in negligence from Carroll Towing. Restatement 3rd- a product is defective in design when the seller could have reduced or avoided the products foreseeable risks by the adoption of a reasonable alternative design (RAD). 1. Moves away from strict liability. Leichtamer v. American Motors 1. Rule- a product may be found defective in design if the demonstrates that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. 2. s were passengers in a Jeep when it overturned, the rollbar displaced and both were killed. Knitz v. Minister Machince 1. Rule- risk utility test states that if the risk of danger outweighs the benefits of the products design then it is defective. 2. s hands were injured while operating a press machine owned by the . The machine acted as the expected it to. 3. Consumer expectation test is not relevant for all situations. Barker v. Lull Engineering 1. Rule- product is defective in design if: a. shows the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. b. If proves the products design proximately caused their injury and fails to prove that the benefits of the design outweigh the risks. 2. was operating a lift it began to vibrate as if it were going to fall over. jumped out and was hit by falling lumber and injured. 3. Shifts burden of proof to the to justify the products design through risk utility test. a. Attempts to make the risk utility test stricter. 4. All the must do is prove the design caused the harm. Honda v. Norman 1. Rule- under the Restatement 3rd the needs to show a RAD which must be both technologically and economically feasible. 2. Decedent was driving drunk and drove her car off a cliff into water. She drowned b/c she could not unbuckle her seatbelt. 3. In addition to proving RAD evidence must also show that the product was unreasonably dangerous and the harm was foreseeable. 4. RAD takes consumer preferences into account. 5. Negligence- the product was defective but someone was designing it and designing is an action there could be negligence in the process of design.

h. Information Defects i. Risk Utility Test always calls for a warning b/c the cost of one is relatively small.

ii. Whether or not a reasonable warning would have produced a different outcome. iii. Liriano v. Hobart Group 1. Rule- A manufacturers failure to provide appropriate information about a product may make an otherwise safe product dangerous and defective accepted under both Restatements. 2. was operating a meat grinder and his hand was severally injured. The safety guard that the manufacturer attached to the product was removed by the s employer. The machine had no warning indicating it should be operated w/ the guard on. iv. Prescription drugs- warning given to the doctorlearned intermediary. 1. Drug advertising developed and consumers challenged the rule. a. Warning should be in the advertisements. 2. If there is no doctor the warning should be given to the consumer. Type of Defect Manufacturing Restatement 2nd Consumer Expectation Test- a product is defective when it is dangerous beyond what the consumer would expect. Consumer Expectation Test- a product is defective if it was more dangerous than the ordinary consumer would expect OR Risk Utility Test- if the risk of danger outweighs the benefits of the products design then it is defective. A manufacturers failure to provide appropriate information about a product may make an otherwise safe product dangerous and defective. Restatement 3rd A product is defective when it departs from the manufacturers intended design even though all possible care was used in preparation and marketing. A product is defective in design when the seller could have reduced or avoided the products foreseeable risks by the adoption of a reasonable alternative design (RAD) that is technologically and economically feasible. A manufacturers failure to provide appropriate information about a product may make an otherwise safe product dangerous and defective.

Design

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i. Defenses i. s Conduct 1. Comparative/Contributory Negligence a. Bowling 2. Assumption of the Risk 3. Bowling v. Heil a. Rule- followed minority rule in stating that contributory negligence by in a strict liability tort bars them from recovery. Assumption of the risk is an affirmative defense.

b. manufactured dump truck. borrowed the truck and the bed would not lower. placed his head the bed and manipulated the valve. The bed fell killing the . 4. Misuse a. Foreseeable Misuse- manufacturers under duty to design products w/ foreseeable misuse in mind. i. s misuse can be regarded as comparative fault/assumption of the risk. ii. s use can be foreseeable even if it was used in a way that the manufacturer did not intend. iii. Recovery is not barred. b. Unforeseeable Misuse i. No defect- when s misuse is unforeseeable the product may not be defective. not an affirmative defense. 1. Bars recovery. c. Whether or not the use was foreseeable/unforeseeable is a question for the jury. ii. Causation 1. Cause-in-fact- the defect has to be the cause in fact and proximate cause of the s particular injury. 2. Hymowitz v. Eli lilly Co. a. Rule- In DES cases, any manufacturer that participated in marketing DES may be held liable proportional to its market share of the national DES marketmarket share theory. b. DES was a drug given to women in risk of a miscarriage. It caused cancer in the offspring of women who took it. s mother took the drug. c. Design defect b/c the pills didnt come off the product line different than the manufacturer intended. d. Market share theory is several liability apportioned to the s share of the market