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Yankah, Fall 2012 Intentional torts- (Intent, Act, Causation) Tort law views - INCENTIVE to do right v.

CORRECTIVE justice a. Intent- RTT 1: Act with purpose of producing a consequence or act knowing consequence is virtually certain (p.9) b. Transferred intent- intention transfers through torts-when one intents to commit 1 tort, but commits another OR when intent to commit a tort against someone, hurt another (Talmage v. Smith-D hit P in eye-stick; intent to throw at companion-liable) i. Limited to assault, battery, FI, trespass to land and chattels; DOESNT apply to EMOTIONAL DISTRESS 1. Battery-doesnt require damages to recover, nominal enough (p.4-11) (59-60) a. RTT 13: (a) Act intending to cause a HARMFUL or OFFENSIVE contact (1 st,3rd person), or an imminent apprehension of contact and (b) harmful or offensive contact results 1. INTENT to cause HARM is not necessary- only need to INTENT to ACT(direct or indirect), but to be battery-act needs to be harmful or offensive a. Substantial certainty- liable if substantially certain a contact will follow (Garratt v. Daley-old lady,boy pulled chair-injuries-liable) 2. Vosburg v. Putney- P tapped V in class, V lost use of leg, P liable-the bare intent to violate a legally protected interest-liability for all resulting injuries 1. There needs to be an invasion of a LEGLALLY PROTECTED INTEREST-otherwise- NO LIABILITY 2. Eggshell skull rule- D takes P as he finds him- D liable for all consequences, regardless of anticipating them or not b. Harmful battery- physical, medical issue (White v. U of Idaho- music prof. touched Ps back-injuries-P no intent to harm or offend-liable) c. Offensive battery (p.59)- violates reasonable persons sense of propriety (spit, grope) and contact with the Ps PERSON 1. Ps Person- anything attached/ connected/ holding to him: 1. Alcorn v. Mitchell-spit on P-provocative act-w malice,outrage and indignity; 2. Respublica v. De Longchamps- French ambas-cane-struck d. Apprehension/ but knowledge not necessary to establish battery - asleep, unconscious, surgery e. Battery by smoke 1. Generalized knowledge that 2ndhand smoke would reach some non-smokers-not enough to establish intent req. for battery (Shaw v. Brown Tobacco-truck driver-share cab-non-smoker-cancer) 2. Intentionally blowing smoke in a face of a nonsmoker-intent-battery; BATTERY IS ACTIONABLE EVEN IF DAMAGES 1 dollar (Leichtman v. WLW J Comm-intent blows smoke in face) f. Mentally impaired/ disabled 1. Only needs intent to make contact,not intent to cause harm ( Wagner v. attack w/t reason) 2. OPPOSITE-Need both intent contact + harmful (White v. Muniz-m.d Alzheimer-assault caregiver) 2. Trespass to land- No damages needed to recover- Nominal D enough (p.11-14) a. ENTRY constitutes trespass Dougherty v. Stepp- Surveying land to determine property-liable-intent to enter b. Intent to complete physical contact (move feet), NOT the intent to cause injurious consequences- Cleveland Park Club v. Perry-bowl in drain-liable c. TRESPASS QUARE CLAUSUM FREGIT (trespass qcf)-on land- Not only ON the surface, BELOW or ABOVE- trespass 1. Below- Hutchinson v. Schimmelfeder- neighbor lots-below grade of str-cant let earth pass in other land 2. Above- Smith v. Smith- eaves of barn overhung Ps land -trespass / Neiwonger v. Goodyear Tire- airplane overflight too low-500 ft-violation of air traffic-trespass d. Damages- STRINGENT STANDARDS of liability- when ACTUAL HARM results 1. Brown v. Dellinger- children liable for burning house down (charcoal burner) even though not their intention e. Intangible Trespasses-NOISE, RADIATION- to be liable the intangible intrusion must be intentional + P must prove physical damage caused by it- to discourage mass litigation, limits to only serious invasions ( Public Service Co of Colorado v. Van Wyk- upgrade of utility system- noise, radiation resulted) 3. Assault dont require damages to recover, nominal enough(p. 55-59)- intentional infliction of apprehension of imminent, unlawful physical contact a. RST 21- (a) INTENT to cause a harmful or offensive contact or IMMINENT APPREHENSION of such contact and (b) the person is put in such imm.appr. b. Intent to BATER but ASSAULT- liable for assault (if intent to assault but battery-liable for battery) 1. I. de S. and Wife v. W. de S.- attempt to hit woman, struck no hit-created an apprehension-liable c. Tuberville v. Savage- D placed hand on sword and said if judges werent in town, Id hurt you. Not liable because no intent for assault. (p. 56) d. Words alone lack immediacy not immediate until D makes a move. Need threatening gesture. Words+ threatening actioncan be assault. Even when threatening act-words can negate immediacy (wont hurt u now) 1. Brower v. Ackerley- phone harassment-will kick ur ass-not liable- no immediate threat e. Depend on Ps knowledge and belief- Allen v. Hannaford- D pointed unloaded gun at P and threatened to shoot. Liable because of intent and mind of P= reasonable person would feel apprehension of contact. (p. 57) f. Rest. 24(b)- Victim knows harm wont actually occur but reasonable person would be assaulted so even though know wont be effective, doesnt stop it from being assault. Doesnt matter if he can prevent or bystanders can- still assault. FEAR is not necessary for assault. APPREHENSION-not the same as FEAR




False Imprisonment-damages not enough to recover,nominal enough (p. 61-68) a. Intentional Act of restraint confining P to bounded area. A bounder area is defined as P not being able to leave within 360degrees or have no known reasonable means of exit(exit is humiliating,unreasonable).P has to be aware of suffer from that 1. Usually physical barrier but can be 1. Threat that is plausible to reasonable person (ie if you leave this room, Ill kill your kid) 2. Threat to call police by storekeepers- Coblyn v. Kennedy- Elderly P held by employees when accuse of shoplifting. Show of authority can be FI (doesnt need to be physical restraint). (p.63) For shoplifters, for owner NOT to be liable- detention must be as a result of reasonable belief, in reasonable manner, and reas. amount of time. Can also be that D kept necessary item of Ps (ie purse) 3. Failure to act if there was a pre-existing duty to help P move around- omission is the act 2. P has to be aware of confinement or suffer from it 1. Infants-usually unaware, unconscious- look at whether HARM done- parents can sue on their behalf if harm 3. Does not have to be demarcated by physical boundaries such as walls (can be terms of a threat) 4. Does not have to be perfectly bounded area- if only way out is unreasonable because: dangerous, disgusting, humiliating or hidden b. Bird v. Jones- P prevented from crossing highway. three walls does not a prison make (p. 61) has to show EFFECTIVE CONFINEMENT, not a simple RESTRICTION OF MOVEMENT c. RST 36: area of confinement can be large, need not be stationary 1. Whittaker v. Sandford- P held on luxury boat. Still FI as long as cant leave, could leave but method unreasonable- deny faith. Damages reduced because of luxury. (p. 63) d. Herd v. Weardale Steel- P held in mine longer than requested to leave. Consented to go down, so not FI. (p.67) e. Peterson v. Sorlien. P sued parents and cult deprogrammer. Parents ok b/c would do it regardless, not discouraged. Deprogram. liable- to remove economic incentive f. Chellen v. John Pickle. Foreign workers movement restricted, passport taken, scare tactics. FI by authority and restriction (p. 67) g. Sindle v. NY City Transit- bus driver- no FI- can keep kids on the bus- was given consent and authority- he was responsible for them (p.66) Intentional infliction of Emotional Distress- requires damages-need to suffer severe distress-not mildly annoyed (p.68-75) a. RST 46 (p.71): i. By EXTREME and OUTRAGEOUS conduct, intentionally or recklessly causes severe emotional distress- liable for such distress and for BODILY HARM if it results from conduct ii. Liable to 3rd parties if he causes severe.emot.distress to: 1. a FAMILY MEMBER present at the time (not just passing by), regardless whether bodily harm results (fam.members assumed to have damages) 2. other person PRESENT at the time, ONLY if distress results in BODILY HARM b. Outrageous conduct i. Exceeds all bounds of decency tolerated in a civilized society (This is Outrageous!) ii. Mere insults are not outrageous iii. Exercising first amendment rights, even when outrageous, are not intentional infliction of emotional distress(someone says Obama is a communist- other suffers- NO/ religious ritual- someone suffers NO) 1. Hustler Magazine v. Falwell- mock interview- incest- politic cartoons and parodies- 1st Am. Protected 2. Snyder v. Phelps- Westboro church- picket funeral with 9/11 signs-thank god for dead soldiers- not outrageous- subjective reaction to phrase- 1st Am. c. Patterns of outrageous conduct leading to ED: (1) Abuse of power (supervisory role) (Patterson v. McClean Credit Union. black P, supervisor stared, unusual assignments, comments-liable) (2) Repetitiveness (3) Public over private (more likely to be humiliating distress) (4) P is member of fragile class of persons (children, elderly, pregnant-easier to find it outrageous) d. Wilkinson v. Downton. D intentionally scared P as practical joke. Foreseeable result of the intentional action- distress, though no malicious intent (p. 69) e. State Rubbish Collectors v. Siliznoff. P strong-armed by Association members. Liable for mental suffering when intentionally inflict emotional distress (p. 72) f. George v. Jordan Marsh. D bill collectors caused P heart attacks. Liable when reasonable person would find it outrageous and react similarly (p.73) g. Reasonable woman standard - Patterson v. McClean Credit Union. black, supervisor-would a reasonable woman find this outrageous (p.74) h. Outrageous professional conduct- Rockhill v. Pollard- doctor, after car accident didnt examine, sent out in freezing weather- RECKLESSLY caused sev. Emot.distress- has to make a good-faith attempt to provide adequate treatment (p.73) i. P. 70- Bouillon v. Laclede Gaslight- miscarriage - ??? Affirmative Defenses to Intentional Torts-burden on D to prove-A new fact/s that defeats a claim even if the facts supporting the claim are true (p.14-55)


Consent (p.14-28) (p. 220-233)- D is not liable for a TORT if P gave consent. Only person with legal capacity can give valid consent. Children can consent to age-appropriate invasions of interests. Given expressly OR implied by custom, conduct, words or law. 1. Express (Actual) Consent- P has expressly shown a willingness to submit to Ds conduct (Disregarded if given by FRAUD to the essential matter or DURESS-not threats of future action or economic deprivation). Cant consent to an illegal activity. a. McPherson v. McPherson express consent-when marrying; implied that night- Infected wife with STD. D didnt know of STD, consent to sex is valid. (p.20) b. Hoofnel v. Segal- dont remove lady parts-then sign consent-overrides previous conversation-she should have read+measures to understand form 2. Implied Consent- apparent and by law 1. Apparent- a REASONABLE PERSON would INFER consent from Ps conduct. Body language + sports (Can be by custom-bump in a crowd) a. Body language- Ds reasonable interpretation of Ps objective conduct - OBrien v. Cunard Steamship. P vaccinated after said she didnt need it. Gave hand. Consent implied by body language (p.17) b. Sports- vol.engage in sport implies consent to normal contacts inherent in playing/ i. Liable if conduct is deliberate, willful or with reckless disregard of safety ( Nabozny v. Barnhill- goalie kicked in head when kick couldve been avoided) 1. RTT 2 Reckless: (a) know of risk of harm or fact-obvious risk (b) precaution slight compared to risk and dont adopt b/c indifferent to risk 2. Avila v. Citrus Comm.College- pitcher hit helmet with a pitch- NOT liable- hit inherent risk of the sport 3. Hackbart v. Cincinnati Bengals- defensive back injured by hit in the headLIABLE- hit prohibited by rules of game-not inherent 2. Consent implied by LAW- when action necessary to save life, interest in person or property a. Emergency rule- P incapable of consenting, a reasonable person would consent to prevent death or ser.bodily harm- surgical operation i. Kennedy v. Parrott- appendix surgery- cyst on ovary-punctured it-injuries-not know condition until start surgery-consent implied-BUT ONLY IN THAT AREA(not in brain)not liable ii. Schloendorff v. Society of NY Hosp- every person of adult years+sound mind right determine what done to body- EXCEPT in emergency situations-unconscious + necessary to operate before obtain consent b. Minors, incompetents- substituted judgment- consent of a guardian i. Brophy v. New Engl. Sinai Hosp- wife of man vegetative state- cut off life support-he would have done the same ii. Lausier v. Pescinski- childs guardian refused operation-to take kidney-save reminder iii. Strunk v. Strunk- guardian agreed-kidney transplant iv. Curran v. Bosze-mom refused 3 year old to be tested if bone marrow match 3. Exceeding Consent Given a. Mohr v. Williams- doctor operated on wrong ear without express consent, no implie done, no emergency here. Battery because no consent but reduce damages because skillful surgery and intention to improve Ps sit. (p.14) b. Kozup v. Georgetown University. P parents werent informed that blood for transfusion risk of HIV+.Hospital not liable because would have consented if informed. Damage must be caused by failure to consent 4. Reasonable Disclosure doctrine- duty to disclose- doctors must reasonably disclose information so p makes informed consent- not just CUSTOM (as defined by doctor) but what the patient would want to know, has to be material and non-obvious (Canterbury v. Spence- didnt disclose 1% chance paralysisrequirement for conduct prudent under the circumstances (p.220); Acuna v. Turkish- recom.abortion-is baby there-diff.definition of baby-NO OBLIGATION TO ENSURE PS COMPREHENSION a. Majority position- when deciding what to disclose- look at what the REASONABLE PATIENT would have wanted to know- OBJECTIVE BASIS b. Minority position- look at what THIS patient would have wanted to know- SUBJECTIVE BASIS c. Exceptions- (1) Emergency rule- unconscious-failur eto treat outweighs harm done by treatment + (2) Risk of disclosure poses a THREAT of DETRIMENT to patient- would become UNFEASIBLE, distressed froma medical point of view-risk to his well-being- not when he would do smth doctor doesnt agree with 3. Criminal act-



Majority view- one cant consent to a criminal act- breaches of the peace (combat)- consent ineffective; not breach of peace (prostitution)-consent effective a. Hudson v. Craft. P injured illegal boxing. Promoter liable b/c statute- no license-consent ineffective-combat, protect class 2. Minority view- Restatement- consent to crim.act a valid defense (1) volenti non fit injuria and (2) ex turpi causa non oritur action no action shall arise out of an improper or immoral cause/ criticizes maj.view that ignores principle pari delicto (equal wrong) and encourages combat a. Hart v. Geysel- Ps husband killed in illegal prizefight-both violated crim.statute-shouldnt reward the luckier one 3. When act is criminal to protect a victims class - from own lack of judgment (statutory rape)- consent ineffective defense in action brought by member of class a. Christensen v. Royal Sch. Distr- 13-y sued teacher for sex.intercourse- too young to consent- P won damages b. Barton v. Bee Line- 15-18 y sued damages- but consented to sex intercourse- NO damages-full understanding of her act Insanity (not really a defense) (p.28-32) 1. Doesnt need a RATIONAL choice, only need to INTEND a WILL BODILY MOVEMENT. INSANE, CRAZY intent is still intent. Insane liable for INTENTIONAL TORTS. Insane people cannot intend defamation and fraud (sophisticated intents). 2. McGuire v. Almy. Insane patient struck nurse. Responsible for action: AIM/GOAL: (1) Compensate victims (2) Prevent against unwarranted insanity claims (3) Will give caretakers incentive to care for patients and their property. (p.28) 3. Polmatier v. Russ. Schizophrenic killed Fath-in-law. Unfit for crim. trial but liable b/c was intentional invasion of protected interest, even when crazy rationale. (p.31) Self-help- D reacted to threat / D has burden of proof 1. Look out for: (1) Timing- threat imminent/in progress (2) Reasonable belief threat is real (reasonable mistake wont destroy privilege) 2. When have timing and belief, rule of proportionality- response must be limited to force necessary a. In life threatening situation (DEADLY FORCE, GRIEVE BODILY HARM, RAPE), can respond with deadly force. Some states require retreat first (if you KNOW you can retreat to complete safety-ends at your HOME/ when threat is in home-to last safe place-bedroom/ law wont require u to flee home+seek safety elsewhere). States-no retreat-b/c insult to dignity-can recat with deadly force b. Can NEVER use deadly force to protect property 3. Self-Defense (p.32-37) 1. Courvoisier v. Raymond- House/store robbed, shot police thought rioter. Deadly force, need proportionality of acts. Reasonable to believe under attack-self-defense-under these circum. (p.32) 2. Innocent bystander- Morris v. Platt- shot bystander-so long that response is reasonable then not liable for harming bystander in self-defense/ RST 75: if actor REALIZES or should, his act creates UNREASONABLE RISK of harm-LIABLE 3. Defense of 3rd party- RST 76: same rules when protecting- if reasonably believes 3rd party entitled to use force ins elf-defense, own intervention necessary- proportionate reposne (p.37) 4. Self-defense and negligence- Niskanen v. Giant Eagle- shoplifter-lashed out-sat on top-died-P 60% negligent-P cant show D more negligent- D won 4. Defense of Property- (p.37-44) 1. Use rule of proportionality, but DEADLY force is NEVER allowed UNLESS u r present and threatened with deadly force 2. Bird v. Holbrook- Injured by Hs spring gun protecting property day and night. No warning, intention was to hurt not stop intruders. Deadly force wasnt appropriate for defense of property. (p. 37) 3. Katko v. Briney- Gun to protect house used for storage. Cant use deadly force to protect property 4. MIlovy v. Cockran- Shot C as tearing down fence- NOT ALLOWED. If intruder comes with ACTUAL FORCE-with force and arms-need not request to leave-can return violence with violence/ if one comes with FORCE IN LAW-w/o actual force-must request to leave first, before laying hands on him. When intruder assaults you (bodily harm, deadly force) then can use deadly force) 5. RST 85- One can sue a mechanical devise that is likely to cause serious bodily harm or death, if he was present, he would be privileged/ justified in causing such harm/ death. 5. Recapture of Chattels 1. Hot pursuit requirement- recapture must be exercised promptly OR lose privilege 2. Only permissible when there is NO dispute of rightful ownership. 3. In most cases, allows D to make immediate steps to recover chattels if P wrongfully obtained possession either by force, fraud or without claim of right


Kirby v. Foster- K held Fs money under advice of lawyer because F owed K money. D cant detain because P honestly and erroneously believed was his. Cant use force. Must wait for police or sue in court. (p.43) 5. Recapture of land- Berg v. Wiley- changed locks to restaurant- force, not peaceable / Brown v. State Central Bank- lease lawfully term; wanted extension-willfully ready to vacate, want to move equipmentthen banks change of locks peaceful means d. Necessity (p.44-55) 1. Private necessity 1. D must pay for actual damages (compensatory damages) 2. Never liable for nominal or punitive damages 3. P must allow D to remain on land in position of safety when an emergency situation arises and as long as it continues/ DOESNT have to lend a helping hand 4. Ploof v. Putnam- Untied Ps boat from dock during storm. CAN tresp ass to save goods in danger of destroying by water/ fire and to SAVE LIFE. D liable for Ps damages because he untied . NECESSITYSPECIAL FORCE-WHEN DEFENSE OF LIFE (p.44) 5. Mouses Case- to save lives, threw out casket, was a passengera. GENERAL AVERAGE CONTRIBUTION- master of ship can throw out cargo to save ship or remaining cargo/ usually receive PRO RATA compensation from other owners+ owner of shipeconomic cost is distributed; In time of EMERGENCY- in effect all are joint owners of all property 6. Vincent v. Lake Erie Transportation Co.- Vs dock damaged by ship docked during storm. Allowed to dock w/o permission, but pay damages when there willfully(cables) (not an act of God, unavoidable accident). If at sea and cause damage when crashed (act of God), not liable. (p. 47) 7. Contracts and necessity- Court will enforce K made for salvage service if savior hasnt taken advantage of his power to make an unreasonable bargain. If SO- void K and restrict recovery to a reasonable fee (relative to cost, adjusted for risk and services) (Post v. Jones) 2. Public Necessity- dont pay for damages 1. In cases of actual necessity- fire, pestilence, hostile army or great public calamit- private property may be lawfully taken, used or destroyed for the relief, protection or safety of the many. No personal liability for those whose duty is to protect the public interest (by their direction or by them taken, destroyed, used) (Mayor of NY v. Lord (p.51) a. Privilege not complete- when property would have been lost anyways- loss by 3rd party (Nat board YMCA v. US-no liability-already dam) b. Privilege complete- property wouldnt have been destroyed but for his action (Respublica v. Sparhawk- wouldnt take property- burned down) Unintentional Torts 1. Strict Liability and Negligence- (p. 97-143) a. Strict Liability- Absolute legal responsibility for injury placed on P w/o proof of carelessness or fault- PRODUCT LIABILITY, ANIMALS, TR TO CHATTELS, CONVERSION (Analysis: 1.Have Absolute DUTY-to everyone who may use it, never issue 2.NO Breach-dont care if negligent (BUT in Product L-P shows Product is defective) 3.CAUSATION-if Forseable use 4.DAMAGES-show i. Brown v. Kendall- K injured B with stick while separating dogs. Strict liability- if you hurt s/o regardless of intentions, have to pay (p. 98) ii. Unnatural Conditions- mutual benefit, Act of God exception-MODERN-would impede society, move to hazardous, abnormally dangerous condition -Fletcher v. Rylands. Reservoir overflowed on Fs land because of unknown coal mines. Because unnatural+escaped, have strict liability. . (p. 103) UK law- US eventually steered away Turner v. Big Lake Oilreservoirs necessary in TX (p. 117) -Nichols v. Marsland. Ornamental pools overflowed in severe rainstorm. Not strictly liable for unnatural when theres nat. disaster- Act of God (p.113) -Carstairs v. Taylor Rats ate through gutters. Exception for strict liability when theres mutual benefit from unnatural item. (p. 113) -Cambridge Water Co. v. Eastern Counties Leather Stored chemicals on industrial site and infiltrated water. Toxic- non-natural abnormally dangerous activity. Impose strict liability (p. 112) -Brown v. Collins- Horse spooked by railroad,causes damage. Anything on property can escape-would hinder progress-D not liable. (p. 114) -Losee v. Buchanan Exploding boiler damages. Boiler not nuisance, no responsib. for damage by accident. No negligence, no liability. Compensation- by living in society, general good (p. 116 -Powell v. Fall Fs engines sparks set fire to Ps field. If own danger machine -liable for any damage,even when statute allows use on road. Strictly Liable-bc earns income through tractor. Normally would say benefitsociety. (p.118) b. Negligence Conduct falls bellow the Reasonable Person Standard Under the Circumstances (p. 146-1.Duty 2. Breach (Reas Person standard OR Special Circumst-\\Duty to Rescue, Duty of Owner[Statute/Customs/Economic Rationale]RES IPSA-when


dont know what happened) 3. Causation (But for test+Proximate cause)4. Damages- P show dam-D liable-thenJoin and Several Liability/ Defenses-Contributory/ Comparative, Assumption of Risk/// i. Kaldor Hicks Efficiency- Looks to the past-We want losses placed where the gains outweigh the losses-zero sum(loss me 100-benefit him 200) ii.Pareto Efficiency-Forward looking-Most used TODAY-The move from 1 person nt only outweighs the loss to another,but the move to 1 person actually makes every other person better (society)- Mutual gain throygh trade/not 0 sum iii. Stone v. Bolton- Women injured by cricket ball. Risk-foreseeable but Rare-harm doesnt outweigh the burden to fixexpensive-NOT negligent (p. 129) iv. Rinaldo v. McGovern- Golf ballshattered Ps window. No liability bc No Duty to warn p on near highway+cant react v. Hammontree v. Jenner-Seizure while driving-crash store.Seizure might be foreseeable-Crash-No.No foreseeability-NO Negligence.Would be liable if negligent. No Strict liability-dont want to incentivize over -caution (p. 139) vi. Schmidt v. Mahoney- Doc Not liable for not informing epileptic patient of relevant risk *driving*-If yes-Docs worried for restrictive recommendations and not patients interests - p.142 2. The Reasonable Person (p. 145-169) a. Default Standard- Must take Same amount of care or precaution that would have been exercised by reasonably prudent person acting under similar circumstances b. Childrens standard: age, experience, and maturity iii. Children under 5 owe NO duty of care. 5-18 careful as reasonable child of similar age, experience, and intelligence acting under similar circumstances (subjective standard that is pro-D). RTT:LPH 10 iv. RST 283A: When doing adult activity, held to adult standard (license can indicate) Daniels v. Evans- Minor on motorcycle-AD activity;if Adult teach minor to drive-Ad assumes risk BUT Pedestrian hit doesnt. (p. 156 ) v. Purtle v Shelton- Minor hunting. Held to childs standard- difference of opinion re: guns (where in the US-different) vi. Dellwo v. Pearson-12-y old speed boat-Adult Standard(license); Goss v. Allen-17y skier-Child Standard-No Lchance c. Can be held to higher standard if possess superior skill/intelligence (doctor) RST 299A-exercise prof.skill+knowledge (p. 156) vii. Professional malpractice owes care of average member of that profession providing similar pro. services. Not a hypothetical standard but factually grounded. Look to others- custom of profession sets standard of care through expert testimony. viii. Some states use local standard- traditional. Generally use national standard- modern trend. ix. Lama v. Borras- Injured when post-op care for herniated disc didnt follow conservative care standards. Standards for med-mal: (1) basic norms of medical care (2) failure to follow custom (3) failure causes injuries. Didnt follow industry custom so liable (p. 206) +Morlino v. Med Center + Heling v. Carey from 4.CUSTOM x. Jones v. Chidester- When have competing schools of thought, must have considerable experts on your side (p. 236) xi. Hirhara v. Tanaka- Dr. ignored warnings surgical patients condition worsening. Ct - not liable for reasonable error of judgment p.236 xii. Clark v. University Hospital-UMDNJ- Interns are held to standard of care of doctors (p. 217) xiii. Rush v. Akron Hen. Hospital-Lower standard of care for Interns+Residents-Skill+knowlesge of fellow graduates xiv. Brune v. Belinkoff- Doctor followed local custom and knowledge. Held to national standard for doctors (p. 240) d. Objective standard- applies even to people incapable of doing so -Vaughan v. Menlove Hay stacks caught fire, burned neighbors house after warning. Held to standard of Reas Person- not own intelligence (p. 147) e. NO Special circ for being OLD-Roberts v. Ring-Adults expected to maintain intelligence-77-y old badeyes held to Default standard when driving+hit a child (p.154) f. Breunig v. American Family Insurance- D had delusion while driving(Batman). Had knowledge that might happenNegligent(p. 161) g. Gould v. Amer. Fam. Mut. Insu., Creasy v. Rusk- Caretakers assume risk so not liable. Institutionalized patient- workers comp will cover (p.165) h. BLIND-Fletcher v. City of Aberdeen- Blind man hurt when barricades removed from ditch. Required reasonable care of person with same condition-Blind Person RTT:LPH 11(a) i. DRUNK-Robinson v. Pioche- Drunk man injured. If would have been hurt while sober, dont get off just b/c hes drunk-Held to Default Reasonable Sober Person Standard 3. Reasonable Prevention- Economic Rationales (p. 169-194) a. If your conduct is ECONOMICALLY RATIONAL, then you are NOT Negligent b. Blyth v. Birmingham Water Works- Pipes burst during unusual frost. No way reasonable man can anticipate so not liable. Economics- dont need to take extreme precautions. Reas.Person cannot be held liable for an unforeseeable event, but if once you know of the event (hurricane) and dont take precautions-Liable (p. 169) c. Eckert v. Long Island RR- P killed by train while rescuing child. Court says reasonable person calculating risk would have thought could save child and was worth risk. Wouldnt be reasonab le to risk life to save property. (p. 171)

d. e. f. g. h.

Cooley v. Public Service Co.- C injured when Ds wires fell on phone wires, creating noise. D owed more duty to pedestrians and no other reasonable solution so no liability for freak accident. Preventative measure more dangerous than harm (p. 178) US v. Carroll Towing Co*- Barge sank after coming loose from tugboat-Negligent-no person. Learned Hand: Probability, Burden and Loss P*L>B=neg. If expected loss (lossXprobability) is greater than the Burden-Negligent/If B>P*L-Not Negligent Halek v. United States- P not cautious while fixing Navy elevator. Navy liable- easy for them to make safe and Ps neg. was foreseeable- Judge POSNER-promote Hand Formula-but otherwise rarely used today (p.185) Lyons v. Midnight Sun Transportation Services Inc- P killed by Ds driver in wrong reaction to emergency sit. Invalidated sudden emergency doctrine- instead hold to standard of reasonable person in same situation; RTT:LPH 9 in emergency, hold to RP standard in circum.-cant rely on an emerg. Created by ones prior negligence Andrews v. United Airlines- Injured by falling bag from overhead compartment. Up to jury- but D owed utmost duty of care to passengers because entirely in airlines control, economically cheap way to fix (P*L>B) (same for hotels) (p. 190)

4. Reasonableness- The Role of Custom (p.194-234)- 3 views- mention each-use whichever(most likely middle view) a. Titus v. Bradford- Extreme View Pro-Custom-P hurt moving round bottom containers to flat truck w/ wire and beams. Industry standards (custom) determine reasonableness (p.195) b. Mayhew v. Sullivan Mining Co-Extreme V-Anti-Custom- Worker fell down hole in mine without any fencing- different standards for stranger versus employee (who should know custom). If industry standard is dangerous, liable (p. 197) c. Lucy Webb Hayes National Training School v. Perotti- Held to own standards even if higher than industry standard when advertised Older view: Fonda v. St. Paul City Ry. hold to industry standard and not internal higher standard to encourage extra care (p. 204). RTT:LPH 13(f): depends on whether P relied on higher standard of care- if yes- hold to internal standard. d. Trimarco v. Klein- D injured byold glass in shower.Up to jury if not replace prior industry custom w new is unreasonable (p. 205) e. The TJ Hooper-Middle View Boat lost at sea in storm because didnt have radio. Not dictated by custom but deemed not prudent since most boats had radios. HAND applied formula-cheaper to get radio(p. 198) RTT:LPH 13(a-b) Conforming to industry is evidence that werent negligent but not dispositive (p. 201) f. DOCTORS-Morlino v. Med. Center of OC- Miscarried b/c meds doc prescribed. Less dang. opt. Custom of Phys. Desk Ref. is rel. not dispositive (p.212) //// Some Courts dont allow self-imposed customs in medic.field used to draw in business g. Helling v. Carey- Dr. didnt give pressure test for glaucoma bc under -40. Cheap, prevented harm. Custom evidence not dispositive h. Lama v. Borras- from 2.- look 5. Reasonableness- STATUTORY Defined (p.234-257) a. Allow P to borrow statute to prove breach (negligence per se=violation of statute) when can show: (1) Member of class of persons statute protects (2) Accident in class of risk statute prevent. RTT14/when met-Statute-words of Jury Charge/ Dont borrow when compliance is (a) more dangerous (Tedla v. Ellman- T walking with deaf brother on highway with traffic. Violated for purpose of statute (keep peds safe) BUT not contrib. negligent bc safer walk other side-p. 248) (b) impossible in circumstances (ie heart attack)/If NO NPS-Statute-serves as EVIDENCE b. RST 286: Negligent if cause harm statute is intended to prevent to the people statute protects (p. 239) c. YES-Clinkscales v. Carver- D ran stop sign he said wasnt supposed to be there. Court- need to follow accepted behavior regardless of own reasoning, follow authority even if Statute Illegal-still Neglgigence Per Se to violate d. Osborne v. McMastersStore gave poison without label-violating crim. statute. Can have civil liability based on criminal statute238 e. Martin v. Herzog- Martin drove buggy without lights against state law and hit by H. Court found violation of statute-negligent247 f. Stimpson v. Wellington Service Corp- D drove on city streets w/o permit, broke pipes in Ps building. Harm statute is meant to prevent: had applied, wouldve denied license if applied (p. 240) g. Hammond v. International Harvester- Tractor didnt comply with regulations not yet enacted. Can find negligent b/c intention of legislators h. Kernan v. American Dredging Co- Sailor died b/c kerosene lamp hung lower than statute. Not harm prevented(collision) but fire is heavily regulated so liable. p.242 i. Ross v. Hartman- Left unlocked car for parking garage, stolen and P harmed. Statute is to prevent such harm-stolen-Negligent249 j. NOGorris v. Scott- Sheep not pended according to statute and lost at sea. Not harm statute intends to prevent-No Negligence Per se k. Burnett v. Imerys Marble- Trucker hurt by marble tried to claim based on Mining Act. Not in class intended to protect (Not miner)-No Negligence Per se- p.241 l. Brown v. Shyne- S practiced chiropractory without license. No negligence if skilled care b/c point of license statute is to prevent unskilled from practicing (p. 244) Mattero v. Silverman- Lack of drivers license isnt evidence of negligence, unless violate substantial safety standards enforced by the licensing requirement -RTT:LPH 14 (h) (p. 243) m. Klanseck v. Anderson Sales and Service Co.- New motorcyclist can be found negligent because accident is result of inexperience under RTT 14(h)-inexperience is violation of standards. n. Richards v. Stanley- Not negligent for keys left in car-who stole crashed, unlike when lend car out-would be liable (p. 250)

o. p.

Dram Shop Cases (p. 250)- Social hosts usually arent liable b/c: dont have as much control over consumption, no financial incentive, no training and not foreseeable. Some exceptions, depends on juris. Vesely v Sager- Illegal to sell, give,furnish to someone who is intoxicated or drunkard- so liable (p. 278) Uhr v. East Greenbush Cent. Sch. Dist- Kid got scoliosis during year skipped exam. Not liable b/c against purpose of free screenings, leg. Intent- p.252

6. Res Ipsa Loquitor It Speaks for Itself- use under BREACH (p. 271-300) a. P doesnt have information about what went wrong . RST 328D: (1) event wouldnt ordinarily occur without someones negligence (2) Ps conduct+other causes under exclusive control of D and (3) No contributory act by P p.275/ RTT:LPH 17(h)-simplifies b. Test: (under RTT 17(h): (1) Accident of a type normally associated with negligence- usually appeal to common knowledge and, if theres evidence, that rules out non-negligent explanations (2) Accident would normally be due to someone in Ds position (D had control) - If PROVE 1+2-get JURY-not necessarily win (p. 276) c. Byrne v. Boadle- P hit by barrel of flour outside Ds shop. Up to D to prove wasnt his negligence (p. 273) d. Walkein v London- P hit by train. Not RIL because P could have run into train-possible contributory Negligence (p. 274) e. Hotel: -Larson v St Francis Hotel-P hit by chair on VJ day.Not foreseeable and no exclusive control so not necc.negligence of hotel302 -Connoly v. Nicollet Hotel- Chair hit P from hotel during Jr. Chamber of Commerce party. H had warning and exclusive knowledge of perp = RIL f. Passenger v. Stranger -Galbraith v Busch- P passenger in daughters car, 3rd party driving. Not RIL injured in accident b/c assume risk, could be mechanical error- cant prove wouldnt occur w/o negligence p.278 -Paffenbach v. White Plains Express Corp- RIL applies when D veered across to opposite lane of traffic.P-stranger hit-doesnt assume risk Difference btwn. passenger and stranger g. Walston v Lambersten- Boat disappeared at sea. Not RIL because no way of knowing it was negligence and not storm (p. 277) h. Ybarra v. Spangard- Harm to right shoulder during appendix surgery. RIL because 1) must be negligence 2) unconscious so no contribution 3) P under sole care of surgeon. Up to dr to prove no negligence/ RTT:LPH 17 (i)- can be RIL even if D doesnt know cause of harm i. Anderson v. Somberg- Tip of forceps broke off in surgery. Shift burden of proof to D- leave it to dr and manufacturer to figure it out j. Benedict v. Eppley Hotel- P fell out of chair with screws missing. In exclusive control- she chose chair but they made it available k. ESCALATOR-Holzhauer v. Saks- P fell from suddenly stopped escalator. No res ipsa because anyone could have pressed button. Colmenares Vivas v. Sun Alliance Insurance Co. is different because escalator was in Ds exclusive control. (p. 281) 7. Contributory Negligence- use in DAMAGES, after show D is liable (p.301-333) a. COMPLETE AFFIRMATIVE DEFENSE TO NEGLIGENCE- D needs to prove CN-D is negligent but NOT liable because P didnt abide by duty of care to self (RTT:LPH 9 not CN when P responding to emergency situation p.314) b. Butterfield v. Forrester-YES CN-Intoxicated P rode horse into pole. D negligent for placing pole but P caused accident b/c if sober could have stopped p.302 c. Beems v. Chicago, Rock Island & Peoria RR- NO CN went between moving train cars. D is liable because didnt follow Ps signals- D should have slowed the train-didnt- P seemed CN for moving in between cars-but if not for Ds negligence-p.303 d. Guyerman v. United States Line Co.- NO CN-Unstacking fishmeal. Not CN b/c burden on D to show would have changed situation if told supervisor 307 e. Osborne v. Salvation Army- Window cleaner fell when not wearing harness. Unless employer required harness a/p statute and disobeyed, NO CN, Same as Koenig v Patrick Construction Corp, different in Weininger v. Hagedorn & co. b/c P was sole cause of accident YES CN f. Padula v. State- NO CN-Alcoholics in rehab drank ditto fluid. Irresistible impulse and were in care of facility so no CN g. ONeill v. Windshire-RST 483-when D negligently violates a statute, Ps CN bars recovery, UNLESS the statutes effect is to put the whole liability on D. Here-building code didnt put whole liability on D -so CN bars recovery- YES CN h. LeRoy Fibre co. v. Chicago, Milwaukee & St. Paul Ry .-NO CN-Stacks of fiber caught fire when placed near RR on Ps property. No CN because cant limit how people use their own property Kansas Pacific Ry. V. Brady-YES CN-Hay was father away but dried grass in between, P knew, so CN when know common negligence will cause harm i. Mahoney v. Beatman-NO CN-D smashes into Ps speeding Rolls Royce. Even though speeding P increased damage, D liable for whole thing because without initial collision, would have been no harm (p. 315) j. Smithwick v. Hall & Upson- P slipped after warned about icehouse railings. Not CN b/c accident wasnt result of assumed risk 314 k. SEATBELT DEFENSE-Derheim v. N. Fiorito Co.- Not wearing belt is non-action so not CN- doesnt cause damage but contributes to eventual results of negligence (p. 320). Different states have different seat belt rules-TODAY heavily statutory regulated- NY-law-seatbelt def-only as evidence for extend of damages NOT to BAR Recovery (p. 323) l. IMPUTED CN-whether the negligence of a 3rd party can be imputed to P, if it is CN will bar Ps recovery -Thorgood v. Bryan-driver stopped in middle of street-CN imputed on Passanger getting off+hit by 3 rd party (Mills v. Armstrong- Court rejected aboves arguments-would be unreasonable to impute to P in such case

-Dashiell v. Keauhoou-JOINT ETERPRISE-could arise from simple casual driver-passanger relationship, most courts require community of interest as in enterprise, business ( RST 491). Here-wife+husband-no joint enterprise-CN not imputed to husband -Hartfield v. Roper-2y old imputed mothers CN -Rue:CN can imputed on kids+crazy people-REPUDIATED by common law+statutes m. LAST CLEAR CHANCE- Used when CN was common to lessen its severity-doctrine that if CN used as defence, P can still recover if he shows that D has the Last clear chance to avoid accident a. P was negligent but no longer in control. D negligent in not avoiding harm through reasonable care. RST 479, 480 b. Fuller v. Illinois Central RR- Old man in cart killed when stopped on tracks. Conductor had last opportunity to avoid accident so negligent c. Kumkumian v. City of New York- Conductor ignore 3 safety warnings before ran over P so negligent d. Washington Metropolitan Area Authority v. Johnson- Not in conductors hands when P attempted to commit suicide- no LCC 8. Assumption of Risk- (p.333-355) a. Firefighters assume risk because essential element of job.With employees, used to depend on strangers v. coworkers, now knowledge of dangers. With sports, depends on knowledge and type of risk Maddox v. City of New York, Maisonave v. Newark Bears(Yankee player assumed risk on injury by stepping on mud bc continued to play in game-AR as a matter of law-p.343 b. Lamson v. American Axe & Tool Co- L complained new racks were dangerous but by staying on the job, assumed risk c. Murphy v. Steeplechase Amusement Co-Harm done (fell)was one he chose to encounter after observing moving ride at Coney Island d. Russo v. The Range- P injured when flew in air on Ds slide. AR on ticket wasnt relevant because wasnt the risk (flying in air) agreed e. Marshall v. Ranne- P injured by Ds boar. Not assumption of risk when other options risk liberty or rights f. Dalury v. S-K-I Ltd- Release at ski resort not relevant because poles arent risk assume when skiing even though signed releaseInvalid exculpatory agreement- advertised to public-public interest under (1)-not valid g. Tunkl v. Regents (qtd in Dalury): Exculpatory agreement not valid when:(1) suitable for Public regulation (2) P seeking agreement provides Public service (3) Services are Publicly available (4) D has bargaining power (5) Contract of adhesion (6) D in control of P 9. Comparative Negligence- (p. 355-374) a. P didnt exercise reasonable care under the circumstances. Jury asked to weigh carelessness and assign % to reduce damages based on Ps number. Pure comparative- pay whatever % were negligent (P can recover even if 99% neg). Most jurisdictions, only pay when P is less than 50 (or 51%) negligent. b. When safety statute is for protection of workers, employers liable unless employees didnt follow protocol. c. RST 488 child not barred from recovery because of negligent supervision by parents d. Li v. Yellow Cab Co. of California- Cut across traffic and struck by cab went through yellow- both negligent-2 TYPES quote e. Knight v. Jewett- Ps finger broke after warned D not to be rough. Continued playing so assumed normal risks of game f. Morgan v. Johnson- D injures P while both drunk. No CN because was intentional tort g. Spahn v. Town-Majority-Last clear chance unnecessary,disappears under CPN bc court can compare % liability h. Bohan v. Rizzo- B fell off bike when felt threatened by Rs dog. Not negligent because was just reaction that was wrong - not negligent. i. Amend v. Bell-held Dehreim, where court rejected the seatbelt defense is still good law even under Pure Comp.Negligencedidnt want to become a battleground for experts 10. Joint and Several Liability (p.388-401,438-445) a. Several liability- D individually liable for entire sum. Joint liability-All Ds liable for whole amount (somehow pay,if pay>% sue for contribution). Joint and several-individually(if asked for whole$ has to pay,then contribution) or mutually (all Ds pay-each %) b. Union Stock Yards Co. of Omaha v. Chicago, Burlington, & Quincy R.R.- Both were negligent for not inspecting control on RR cars, so no indemnification. Unlike Gray v. Boston Gas Light Co homeowner wasnt neg. so indemnify and make gas co. pay for fallen chimney hurting ped. c. Am. Motorcycle Assoc. v. Sup. Ct.- Kid hurt in competition, D wants parents to pay for neg. supervision. Part. indemnity on comparative fault basis/ Joint+Sev Liab-REMAINS in COMP.N Liability bc:1)Nature of injury may makde Inapt to let Ds walk away-a)if divisible-each% b)if not divisible-if only portion paid-Injutsice; 2)P is innocent-dont want D to write check+walkaway d. Evangelatos v. Superior Court- One insolvent D, apportion losses to rest based on original liability RTT:AL 21, depends on state. e. McDermott Inc. v. AmClyde and River Don Castings, Ltd.- Some Ds settle before trial for construction accident in MX. Courts concerns: consistency, promotion of settlement, and judicial economy. Pro-rata liability- (encourage settlement)-make non-settling Ds pay their percentage of damages. Other options: Pro-tanto w/ contribution: (discourage settlement)subtract settlement amount from awards and allow other Ds to sue settling D. Pro-tanto w/o contribution(pro settlement) subtract settlement amount from Ps awards and indemnify settling D from suit. RTT:AL 16 pay proportionate share

11. Vicarious Liability- a 3rd person is liable for failure of another to act as a reasonable person (with whom he has a special relationshipemployee-employer/owner car-driver/parent-child)(p.691-710) a. Ira S. Bushey & Sons v US- Drunk sailor opens valve, knocks Coast Guard ship from dry dock. Whether US liable-depends on FORESEABILITY+ACT WITHIN SCOPE OF EMPLOYMENT (Frolic +detour rule-depends on profession) b. Liable when minor diversion from employment ( Riley v. Standard Oil). Liable even when act during work but expressly prohibit (Limpus v. London General Omnibus) c. Schechter v. Merchants Home Delivery- Employees rob old lady during delivery. Employer can be found liable b/c hired with criminal record/ negligent in hiring d. Lisa M. v Henry Mayo- Technician sexually assaulted patient during ultrasound. Intentional tort outside hospitals control is not subject to VL, unless predictable. e. Burlington Indus. v. Ellerth- GENERAL RULE-Sex. Harass. isnt necessarily conduct w/I scope of employment, UNLESS supervisor promoted hostile work envir. or reporting wouldnt help (was supervisor). f. Charles v. Barrett, Morgan v. ABC Manufacturer - Unless transfer of power, direct supervisor is liable in sub-contractor cases g. Petrovich v. Share Health Plan of Illinois Drs were independent contractors of insurance co when failed to diagnose cancer. Look at Apparent authority (Principal liable for auth given +appears to give-how it looked to patient) (to prove:HMO held itself as provider of h care w/o informing p about indep.K 2)P relied on HMOs conduct), Implied authority (Ifemployer retains right to control work) h. Driver-owner/passanger-When joint enterprise-present common precuniar interest-then ALMOST CERTAIN,not-probably not i. Landowners- have strict liability even with independent contractors. Same with inherently dangerous activity (ie blasting sidewalk) 12. Cause in Fact- RTT 26- Conduct is a factual cause of harm wouldnt have occurred absent the conduct -BUT FOR(p.375-388; 402438) Standard test is But For Test (But for breach, P wouldnt be injured today. D will argue Even If breach, would be injured) BUT FOR TEST doesnt work when there are MULTIPLE Defendants: -Merged causes (two fires-house burns): But for test-ILLOGICAL Results->use Substantial Factors Analysis- would each breach on its own have caused injury (if Unequal casual links-huge+small fire-might be able to determine which,but usuallt equal) -Kingston v. Chicago & NW Ry.- 2 fires of equal strength. Use Substantial factor test- both liable, each on own would have caused it/ If one is natural, no liability ///RTT:LPH 27 if have 2 causes, both CIF -Boeing v Cascade Corp- Both P and D polluted. Use SFTest. Each has to pay for portion polluted although P would need to clean up even if D didnt pollute -Unascertainable cause/Alternative Liability: Two acts, only one caused injury, not clear which(2 D shoot-1 bullet hits P).Shift burden of proof to D. If not clear who- BOTH will be liable -Summers v. Tice- 3 hunters. Hold both liable because dont know which ones negligence was the cause a. If P would die anyway: liable for premature death damage caused (LIABLE for loosing life SOONER) - Herskovits v Group Health Cooperative- Tumor diagnosed late, lowered chance for survival. Try to find % of harm- lower life expectancy b. Standards for admission of scientific evidence to Prove Causation: 1.Frye- evidence generally accepted by scientific community-Before-DOMINENT-Not anymore;2.Daubert- only needed to scientific,peer testableNOW DOMINANT;3.Oxendine- most liberal- allows studies of studies (serial expert witnesses), not actually studied, RARELY USED c. New York Central RR v Grimstad- Husband drowned on barge w/o life preserver and buoy. Not liable because P couldnt show that this was cause in fact of death- had there been a life preserver, he might have drowned anyway d. Kirncich v Standard Dredging Co- Had there been a buoy, self-preservation instinct could have kept him alive. Question of fact for jury e. Zuchowicz v United States- P eventually died from pregnancy after overdose of drug allergic to caused heart condition. Are they negligent for not finding out about her sensitivity? If she would have been injured regardless of dosage, not negligent. f. Reynolds v Texas & Pac. RR- Overweight P tripped on staircase not lit properly. Weight may have exasperated but Negligentdarkness was but for cause g. Pool cases: Haft v. Lone Palm Hotel -Below statutory duty: (1) harm statute intended to prevent (2) P class members to protect/ No LG, no sign-against Statute//Ds fault there is NO evidence if that is But For Cause -bc no lifeguard- so Negligent h. General Electric Co. v Joiner- Animal studies re: cause of his cancer werent sufficient to establish causation i. Smith v JC Penny- Extremely flammable shirt. Compare damage to that of other fire victim (service station attendant)Negligent j. MARKET SHARE LIABILITY-each Manufactorer liable for % of market share -Sindell v. Abbott-DES case-Daughter-mom took medicine-cause canced in Daugh-D NEGLIGENT-When P cant ID which manufacturer+unjust preclude recovery-Can recover if: 1)All Potential Ds sued2)No knowledge of who is responbl3)All Ds in the market at the relevant time4)Identical product(Fungible)-identical harm/ liable under Market Share Liability -Skipworth v. Lead Industries Association - P poisoned by lead paint. Sues on market share liabilit y but doesnt work because need 5 factors (1) Identical product following same formula-Fungible-HERE-no (2) Unable to identify which particular product injured through no fault of her own (3) All Ds in front of court-NO (4) Base liability on market share (5) Lots of time has passed, s ome Ds no longer exist/ NO LIABILITY- Alternative L theory-NO bc Ds didnt act simultaneously -Hymowitx v. Lilly-Even if D can prove he didnt produce tablets-Liable-pay % market share-cheaper if no one can be exonerated a. b.

13. Proximate Cause P must show he was a Foreseable Victim who Sustained a Foreseeable Type of Harm(Plsgf)(p.445-495) a. RTT:LPH 34, 29: Liability is limited to physical harms that result from the risks that made the actors conduct tortious. b. P must show was foreseeable victim who sustained foreseeable type of harm. Have to have an uninterrupted chain from negligent act. -There Can be intervening cause xv. Intervening medical malpractice- doesnt destroy foreseeability, original D negligent xvi. Intervening negligent rescue- original injurer negligent Atherton v. Devine xvii. Intervening reaction or protection forces- if injure someone and then while injured, addharm happens, still liable xviii. Subsequent disease or accident- if leave someone in weakened condition, its your fault and its foreseeable c. BEFORE PASLGARF-Ryan v. New York- Ds house-on fire-Liable for natural and probable results of negligence. Dont want D insurer of whole neighborhood so not liable for other burned houses, only liable for his own d. Jones v Boyce, Tuttle v Atlantic RR- liable when negligence causes P injury as scrambles for safety based on reasonable personst e. Berry v. Sugar Notch Borough- Ds tree fell on P driving past limit. Violation of statute wasnt the PC/ Ds negligent maintenance of tree was the proximate cuase f. Brower v. New York Central & HRR- P stunned by accident, stuff stolen while Ds detectives protect own train. Once accident intervened, liable p.507 g. Central of Georgia Ry v Price- D missed Ps stop and put her in hotel. Theyre not responsible for fire at hotel (p. 504) h. Hines v. Garrett- D missed Ps stop by 1 mile and got raped. Let her off in dangerous area - threat of 3rd party intervention what makes negligent i. Watson v. Kent. & Indi. Bridge & RR- D spilled gas, dropped cigarette caught fire. If disgruntled employee intentionally, RR isnt PC j. City of Lincoln- Collision of boats caused captain to lose compass, ship sank. If not for collision, would have made it home okPC k. Dillon v. Twin State Gas & Electric Co. P jumped from bridge and electrocuted by Ds wires. Not negligent because would have died in seconds l. Wagner v. International Ry- LIABLE TO RESCUER-Cousin fell out of train with door left open, P went after him and fell. Danger invites rescue so liable when (1) Negligent cause of imminent peril (2) A reasonable person would perceive the danger (3) Rescuer acts with reasonable care (p. 512) m. In re Polemis & Furness, Withy & Co- Negligently dropped plank caused boat to explode. Responsible for the results of negligence when direct cause The INJURY was a DIRECT CAUSE of the CONDUCT-If you can foresee ANY damage, then liable for all damage that results-Some jurisdictions follow n. PALSGARF v. LIRR- Cardozo-MAJORITY(NY)-Treats as a matter of DUTY-Dont owe a DUTY to an UNFORESEEABLE P/Negligence is not actionable unless involves the invasion of a Legally Protected Right. Negligence in the Air will not Suffice. D owes a DUTY to P is w/i zone of danger(foreseeable).P must show he is FOR Victim+sustained FOR Harm RST 281 (Cardozos view-If one outside class of P to which risk-recognizable-not liable to unrecognizable people o. -MINORITY-Andrews: Limiting Duty only to zone of danger- too Narrow. There is an Universal DUTY to ANYONE in SOCIETY not to threaten their safety. Determine duty- look at whether there was a 1)Cause-smth w/o harm wouldnt have occurred;2)NATURAL+CONTINUOUS sequence, casual chain btw cause-effect, not whether act reasonably expected to injure another 3)Proximate cause is a SUBSTANTIAL FACTOR in producing the harm (if too much 3rd party intervention-not substantial) RST 431- adopts Andrews view (legal cause-if substantial factor+no law relieving liability) p. Marshall v Nugent when (car) accident causes dangerous situation, liable for harms caused before the disturbed waters have become placid q. Tankship v. Morts Dock-Wagon Mound 1-SUPPORTS MAJ PALSGRAF-oil from ship spilled-cause fire-Ship 1-Natural Consequences Rule-overruled- doesnt matter if cause is Sufficiently Direct-as long as its Foreseable- cause- NOT FOR r. Wagon Mound 2- If a reasonab;e person can foeresee + prevent harm- liable for foreseeable, even if remote damages-SAME CAUSE-Foreseable 14. Negligent Infliction of Emotional Distress- (p.495-508) a. Stand Alone ED (ED as a result of negligently caused Physical Injury-compensation in that c for injury) b. 1.Near miss: P almost sustained physical injury due to Ds negligent act. Must 1) be in zone of danger 2) have observable physical manifestations of distress (MODERN TREND-liberal in finding the Requisite Physical Manifestation) c. Mitchell v Rochester Railway- Horses stopped, P between noses, she miscarried. No intent=no assault so need something physical to prove ED. Negligently Inducing Fright is not basis for recovery p.495 d. 2.Witness accident: RTT 47- Severe negligent injury to close family member. Usually need: 1) Feeling of great emotional distress 2) Some states require close family member 3) Some states require see the accident

e. f. g. h. i.

Dillon v. Legg-DILLON FACTORS-1)P closely related 2)close to scene 3)emotional impact from seing the acc,not know or hear- Mom and sister at scene of accident. Look at close relationship instead of zone of danger- unreasonable for Mom not to recover (p. 498) Engler v. Illinois Farmers- BRIGHT LINE RULE-forseability is too broad- stick with zone of danger rule Elden v. Sheldon- 3rd Prong Dillon-Foreseeable Test- No recovery-unmarried cohabitant-close friend p.504 Trombetta v. Conkling-Aunt raised P-Not Close enough Relative-No Recovery- p.505 3.Special Relationship: RTT 46- (ie doctor patient)- distress is highly foreseeable result of negligence recover (Molien v. Kaiser dr said husband had syphilis p. 507)

15. Duty to Rescue- (p.509-529) a. General rule-No Duty to Act Affirmatively/knowledge-no change/ but when you do smth act like a Reasonably Prudent Person b. No duty to rescue unless: (1) Status based formal relationship (2) Contract (ie lifeguard) (3) Initiated Rescue- Leave person in no worse position than found them Zelenko v. Gimbel Bro(medical aid-then stopped+no one else could have helped), RTT:LPH 44 (p.527)(4) If cause the peril Montgomery v. National Convoy(liable for Ommission+Comission if act proximate+efficient cause of injury, RTT 39 (p.525) c. Buch v. Amory Man-child trespass in mill-NO Duty to rescue Someone doing you a legal wrong- here Trespasser (p.511) d. Hurley v. Eddingfield- A LICENSE is NOT an OBLIGATION-doctor refused to help P (p.514) e. Views-BENDER-feminist view-focuses on person saved,sole autonomy outweighed by need to be saved/POSNER-equates duty to contract-compensation is duty to reciprocate/ f. Soldano v. ODaniels- bartender not required to rescue but must allow to use phone (p. 528) d. Child abuse- usually have duty to report, depending on relationship and statute 16. Duties of Owners (p. 529-550) a. Undiscovered trespassers- No duty of care b. Discovered trespassers- w/o permission but know or should expect (discovered and anticipated). Duty of care applies to conditions: xix. Artificial in nature (owe no duty for natural conditions- except trees where owe duty tor remove unsafe) xx. Highly dangerous (dont owe for moderately dangerous) xxi. Concealed (not responsible for open and obvious) xxii. Owner had prior knowledge of danger c. Licensee (dont confer economic benefit for owner -social guests, girl scourt): Protect from any condition: (1) Concealed from licensee (2) Known in advance by possessor d. Invitees (economic benefit/business I/ or land open to public/public I). Test: (1) Concealed hazardous condition (2) Possessor could have discovered through reasonable inspection. Mounsey v. Ellard- Trash and Mailmen are invitees (p. 538) e. Trespassing Children xxiii. Some states treat more generously xxiv. Entitled to standard of care of reasonable prudence xxv. Attractive nuisance doctrine RTT 339 (p. 534): Liability for artificial condition if: know of trespassing, know of conditions danger to kids, kids dont appreciate danger, easy+cheap to fix, no reasonable care to eliminate danger or protect kids f. Two ways to satisfy duty when owed/present: (1) Fix condition (2) Give Warning(satisfies the duty) g. Addie & Sons (Collieries) Ltd v Dumbreck- Categories-P dies in wheel. No duty. No D to trespassers except from willful act involve more than absence of reasonable care (p. 529) h. Excelsion Wire Rope Co v Callan-CL P died when started machinery after repeatedly clearing kids. Attractive nuisanceliable when have knowledge of trespassers, artificial (p.532) i. Gould v. DeBeve- P kid technically trespasser, falls out of window without screen. Impose liability b/c of statute even though its a stretch (keep mosq out, children in) (p.533) (Maalouf p.535 bellow) j. Maalouf v. Swiss Confederation-Attractive nuisance-the type of nuisance matters,not what attracts C attr by hill,hurt by wire k. Post v. Lunney-CL P paid for tour of house slipped on rug. Public Invitee-P opened home for public tour (p. 537) l. Rowland v. Christian- CHANGE-P injured by friends bath.porc.handles.Says Licensee and invitee are same- both need warning. Substitute Default Standanrd with Be reasonable under circumstances. BUT Status of Entry-still important/ Significant MINORITY (24S) butCommon law view-still dominant (p. 538) 17. Gratuitous Undertaking (pp. 551-567) g. Look for statute (Good Samaritan statutes-Insulate Gr.Rescuer from Negl.Liability-revese CLRule-some degree of Immunity-Some any GratR,other Prof.Training/Some Only simple negligence,no GrossN immunity). Then look for reasonableness (once you start-act like RP under CIRC). Then look for reliance on gratuitous undertaking (under RTT 42 and then RST 90)


RTT 42-If undertake to do smth to reduce risk of phys.harm,has duty of reasonable care to other if 1.failure to ex care increase risk of harm OR 2. Person being helped or other relies on his reasonable care (p.559) i. If make promise that others rely and then negligent, find contract through promissory estoppel RST 90 (p. 553) j. Coggs v Bernard- B agreed to look after Cs casks, through Bs negligence -some lost. Took on duty then negligent so liable (p.551) k. Thorne v. Deas-P+D co-owned ship;D promise to insure-didnt;Ship wrecked-NOT liable-nonfeasance(no act)(promise to act-not enforce-no consideration).Could Recover for misfeasance-start to perform and then act negligently (p.552) l. Erie RR v. Stewart- D usually had watchmen at train crossing-now-no-crash. Majority: if existence of watchman known to P,D liable. Dissent: liable if standard practice even if not known (p.554) m. Marsalis v. LaSalle- P bitten by Ds cat, D said would watch but cat escaped. P reacts to rabies shot- D liable because relied on gratuitous undertaking (p. 557) n. Moch Co. v. Rensselaer Water- P sues D for not providing water pressure to put out fire. One who enters a K and fails to perform duty under K owes NO Special Duty to 3 rd party harmed by his NON-performance (nonfeasance) UNLESS he spec.agred to perform to 3rd party. (p. 560) RTT questions Mochs rationale (p.564) o. Doyle v. South Pittsburg Water- When party enters K and its FORESEABLE 3rd party can be harmed from breach of duty, duty owed to 3rd parties fall within foreseeable orbit of risk/harm (p.564) p. Strauss v. Belle Realty- P tenant with NO K relationship with D was owed no duty by utility co.-NY Courts follow Moch p565 18. Special Relationship (p.567-589) (employer-employee/common carrier-passenger/land owner-invitee/landlord-tenant) a. RST 315 No duty to control conduct of 3rd person to prevent him harming another unless: 1) special relationship btw A-3rd p that imposes duty on A 2) special relationship A-other, which gives other right to protection (p. 567) b. Weirum v. RKO Genral-P sued radio station-contest-car off road-D no control or reason to control drivers of other carsRST15 c. Kline v. 1500 Mass. Ave. Apartment Corp P assaulted in hallway after D(landlord) was warned. Safety in Ds exclusive control, liable (p. 568) -Met with widespread approval-reverse CL rule-landlord no duty to shield tenants from criminal activity(applies to Condominium boards too- Frances T v. Village Green p.576 (MALL-Ann M v.Pacific Plaza-NO-577) d. Shadday v.Omni Hotels-Hotel not liable for guest raped in elevator by other guest-risk of that miniscule/Kline is limited e. Wassell v. Adams-P opened door in motel at night-sued M-COMPARATIVE NEGLIGENCE can be used as defense here f. Peterson v. SF Comm College-College had duty to protect student from foreseeable crim.activity in the mddle of the dayp576 g. Lopez v. SC Transit-duty of care to passengers CC exists +doesnt impose economic burden-COMM CARRIER- 576 h. Tarasoff v. Regents of University of CA- P killed when D therapist didnt warn her of danger. Therapist must warn potential victim of patient (divulge and act as a Reasonable Therapist inder circ. Police-not negligent for releasing killer- no special rel. Expands special relationship duty of care (p. 578) i. After Tarasoff- RTT 41-(a)Actor in Spec.Rel with another owes duty to 3rd person regarding risks from other arise from relationship (b) Special reltionships- Parent-dependant child;Custodian-custody p; employer-employee when he can cause harm; mental health pro-patients (p.585) 19. Strict Liability- Trespass to Chattels and Conversion both require damages to recover, not just nominal (p.591-615) a. These 2 torts to personal property illustrate Strict Liability principles- bc Only the Tortfeasors INTENT is needed to exercise control over property,even when he believes (reasonably and in good faith) that it is his own. b. Trespass to Chattels-RST 218-(Damages-less 30%)D is liable for Tr to Chat ONLY if the intermeddling is harmful to quality,value,Ps interest, Ps deprived of use for a SUBSTANTIAL time. Sufficient legal protection of chattel is awarded by use of reasonable force to protect it- p.592 -Intel Corp v. Hamidi- Emails sent over inter-office comm.system not T to chattels- bc no harm to system done (T in cyberspace p. 593 c. Conversion- show 1)own or right to possess,2)wrongful disposition,3)damages (over 50%) (30-50%-T to Ch OR Conversion) -RST 223- C is always an intent.exercise of dominion or control over the chattel.Mere nonfeasance or negligence w/o intent is not sufficient.If D has intent,mistake of right to possession or permission is no excuse. -Poggi v. Scott-D sold wine barrels, not empty-C is the exercise of unjustifiable and unwanted dominion+control over Ps chattel which causes injury.Innocent mistake is no defense to C. P doesnt need to prove wrongful motive, intent to harm or negligenc e p. 602 -Fouldes v. Willoughby-D moved horses-DIFF BTW C AND T CHATTEL-DIFF in Degree of Interference- only trespass when D takes possession of Ps goods w/o claiming ownership/ Simple asportatio n of chattel w/o intent to use further- NOT Conversionp.604 -TODAY-RST 922-Mistake Rule-relaxed-D can usually return the property if no Substantial damage+pays for interim use or repairs -Moore v. Regents of UC- D removed splean+blood+cells from P.NO C-P has to establish an interference with ownership or right of possession-here no-he didnt expect to retain possession of cells. D must have obtained informed consent to use cells for $ + research -Kremen v. Cohen-Intangible property-domain name-yes,property-Whether a PROPERTY RIGHT exists-1)interest capable of precise def2)thing must be capable of exclusive control3)P owner must have established a legitimate claim to exclusivity