Torts Outline

I. Development of Liability Based on Fault
A. Definition of “tort” and “tort law” (What is a tort?)
i. Tort: civil wrong, other than a breach of contract, for which the law provides a remedy
B. Primary function of tort law? *on midterm*
i. Deter vigilante justice
ii. deter wrongful conduct
iii. encourage socially responsible behavior
iv. restore injured party to original state, as much as possible, often times with money
v. vindicate individual rights of redress (remedy)
vi. promote widespread distribution of losses by encouraging purchase of liability insurance
C. Historical Origin of Tort (2 differing opinions on the origin)
i. Started off with imposing liability based upon intent (fault/culpability), and then moved
towards no fault liability
ii. Started off with imposing liability for injury with no fault, moving toward liability with
fault (acceptance of moral standards as basis of liability)
D. The Writs
i. Writ of Trespass: When injury is caused by direct immediate contact, regardless of intent
(someone throws log and hits person)
ii. Writ of Trespass on the Case (action on the case): When injury is caused indirectly and
non-forcefully, regardless of intent (someone throws log and person trips over it later)
E. Three bases for tort liability
i. Intentional Conduct
ii. Negligence
iii. Strict Liability (neither intentional or negligent)

II. Intentional Interference with Person or Property
A. Intent
General Considerations
a) Intent is one of three possible bases for imposing tort liability. There can be no
“intentional tort” liability without “intent”
b) Definition – Two ways to establish intent:

by showing D acted “willfully”, or with “purpose” or “design” to cause a
specific tort

by showing D acted with knowledge to a “substantial certainty” that such
conduct (tort) would occur. (Spivey v. Battaglia – discusses “knowledge”, and
Garret v. Dailey - “substantial certainty”)

c) Children can be held liable for intentional torts, starting around age 3-4 (Garret v.
Dailey – five yo commits battery by moving chair, knowing P would fall)
d) Mistake of Fact does not negate or destroy intent. Thus, as long as the plaintiff can
show that the defendant acted with intent, it will not matter that the defendant's
actions were based on a mistake of fact. (Ranson v. Kitner – D shot P's dog, thinking
it was a wolf)
e) Insanity – mentally ill persons can beheld liable or responsible for committing an
intentional tort as long as the plaintiff can prove that the defendant had formed the
requisite intent to commit the tort. (McGuire v. Almy – insane woman hits caretaker
with table leg)
f) Transferred Intent – In some instances, intent to commit one tort will transfer over
and be available to be used in an action against D for the commission of another tort.
(Talmage v. Smith – man hits boy in the eye w/ stick, meant to throw at another boy)

D has intended tortious conduct towards one person and a different tort is
completed on the same person, OR where initial tort or a different tort is
completed on a brand new victim.

Initial and resulting tort must be Assault, Battery, False Imprisonment, Trespass
to Land, or Trespass to Chattels

Initial tort must be incomplete

If tort which D intended to commit on person A is carried out (ie scare person
by shooting at them), and this tort is completed, person B may not use
transferred intent if they are subsequently injured by D's actions (ie hit by
bullet which scared person A).

However, may be able show that D has substantial certainty that B would
be injured, but only if D was aware of B's presence (Talmage v. Smith )

g) Inferred Intent – Intent can be inferred from a situation. i.e. Bicycle rider runs down
person on sidewalk when there was plenty of room to go around.
B. Intentional Torts
i. Battery
a) Elements

D acts intending to cause a harmful or offensive contact or an imminent
apprehension of such a contact, OR

A reasonable person would be “substantially certain” that harmful or
offensive contact would occur, AND

harmful or offensive contact does occur

b) Additional Considerations

P does NOT need to be conscious for battery to occur

Contact with objects that are “imminently connected” with the P is sufficient

The “Crowded World” rule, in which a certain amount of offensive contact is
unavoidable, such as bumping into someone or tapping them on the shoulder

Full extent of injury does not have to be foreseeable

Does NOT matter if D is trying to help P when contact occurs, as long as P does
not consent

c) Public Policy: Designed to protect P from intentional and unpermitted contacts.

Dignitary Tort: No damages need to be actually proven

d) P entitled to nominal damages if tort is proven
ii. Assault
a) Elements

1. The defendant acts with the intent to cause an imminent (immediate)
apprehension (mental awareness) of a battery AND (or substantial certainty
that this would happen)

2. The plaintiff has apprehension of the battery (sees it coming) AND

3. The defendant had the apparent ability (possible ability) to cause the
battery upon the plaintiff.

b) Additional Considerations

Proximity: D has to be close enough to P for a reasonable person to conclude
that contact may occur. P feels the need to take defensive action (duck, run,

Words alone are generally not sufficient.

Unless D is talking about specific unlawful conduct

* Not every battery includes an assault (ie. P doesn't anticipate the battery)

c) Public Policy: Designed to protect P from intentional apprehension of a battery.
d) Dignitary Tort: No damages need to be actually proven

P entitled to nominal damages if tort is proven

ii. False Imprisonment
a) Elements

1. D acts with intent to restrain/confine the P (w/o legal justification), AND

2. P is physically restrained/confined to a fixed or bounded area

3. P has not “reasonable” means of escape

P is aware of the confinement

b) Additional Considerations

Refusal to admit or allow entry is NOT sufficient

Confinement to a whole state may be sufficient, but not whole country

If P can exit the way he entered, no confinement

Does NOT matter if D intended confinement as a prank

P not expected to escape if it causes physical danger to P, exposure (nudity),
material harm to clothing, or danger of substantial harm to another.

Means of escape not reasonable if it is unknown and not apparent to P.

P may not receive damages if injured through escaping by unreasonable

Fear of losing job not sufficient to render P's behavior involuntary

Restraint must be physical and not a “moral influence” (boss questions
employee about stolen watch, but never tells her she can't leave office)

d) Dignitary Tort: No damages need to be actually proven  P entitled to nominal damages if tort is proven iii. Citizens aiding a police office in a false arrest can also be held liable.    Police can arrest using a warrant OR probably cause. D's conduct is “extreme and outrageous”. There is a causal connection between D's conduct and P's emotional distress. but will not perform it to allow the plaintiff leave a confined area. False imprisonment occurs when defendant takes on duty. c) Public Policy: Designed to protect P from unlawful restraints on movement or mobility. then there is action for false arrest. substantial certainty. Retention of P's property may constitute restraint  A person cannot make a claim of false arrest if they are convicted for the crime for which they were arrested. AND  2. if the person is convicted of a different crime than the one for which they were arrested. AND  4. Intentional Infliction of Emotional Distress a) Elements  1. However. Emotional distress suffered by P must be “severe” . first or second hand. D acts w/ intent. AND   Conduct exceeding all bounds usually tolerated by decent society 3. and it is discovered that the police did not have legal authority to arrest the person. or recklessness to cause severe emotional distress to the P.

 EED does not have to physically manifest. unless they are repetitive over an extended period of time and are “extreme and outrageous”. “severe disabling emotional response”  No reasonable person under circumstances would be expected to endure b) Additional Considerations  Insults are generally not sufficient. and unprivileged invasions of his / her mental and emotional tranquility iv. or recklessness to cause EED to 3rd person  May not need to be in view (hearing is sufficient)  Parents of sexually abused child need not be present  Unprivileged interference w/ corpse of loved one is classic example of IIED  Does NOT matter if intent was to prank P  Mere solicitation of sex not sufficient  Extra protection given to pregnant women  Filing of frivolous lawsuit not sufficient c) Public Policy  Designed to protect P's right to be free to serious. Trespass to Land a) Elements . sub certainty. intentional. but it does help to show a causal connection  Taking advantage of a persons known sensitivity may elevate reasonable conduct to extreme outrageous  Third parties may not claim IIED unless D knew 3rd person was present and acted w/ intent.

buildings/structures. die. Additional Considerations  What is land? Soil.. this is sufficient . paint of the house is peeling from chemicals. D acts intending (directly or indirectly) w/ substantial certainty to enter onto land of another  2. trees. vibrations only justify claim of “nuisance”  Nuisance and trespass may be applied concurrently  For invasion by “invisible particulates there is a 4 part test     1. even if it's just the treading down of grass or shrubbery  nominal damages awarded under common law. etc  Accidental entry is not sufficient (ie accidentally throwing ball onto land)  If D sticks arm over fence or D's eves overhang P's property. law infers that some damage is caused.. knowledge that invasion will violate P's right to exclusive possession 4. action for trespass still exists  Entry must be from “tangible mass”. fixtures. Assists is deterring adverse possession  Even if D entered P's land for “useful” purpose. water on or under the land is contaminated. Entry onto the land of another occurs 1. sound. ie plants. grass. Intrusion from things like light. invasion affecting exclusive possession 2. 1. trees/plants  Even if no extreme damage is caused. intent to invade land 3. substantial damage to land  NO presumed damages for this type of invasion  Actual damage must occur.

Anywhere. Title 14 – Aeronautics and Space  Except when necessary for takeoff and landing. and died. even those which are “unforeseeable” (D held liable when man drove over left behind fence post w/ riding mower.000 feet above the highest obstacle within a horizontal radius of 2. the aircraft may not be operated any close than 500 ft to any . In those cases. fell off. Over ay congested area of a city. by the accomplishment of its purpose or otherwise. an altitude of 1. entry needs to occur with in “immediate reaches” of P's land (ie. Airspace P is actually using)  Action is valid if entrant moved beyond the scope of land owners invitation (veterinarian student who also was secretly filming for TV station)  Public businesses cannot restrict entrance based on discrimination  D is liable for any damages which occur during trespass. For trespass to airspace. an emerg. Code of Fed. or settlement. landing w/o undue hazard to persons/property on the surface  Over congested areas. Reg.000 feet of the aircraft  Over other than congested areas. An altitude of 500 feet above the surface. if a power unit fails. An altitude allowing. if the actor fails to remove it after the privilege has been terminated. chattel or other thing which the actor or his predecessor in legal interest therein has placed thereon  with the consent of the person then in possession of the land. town. or over any open air assembly of persons.   Trespass may be committed by continued presence on the land of a structure. no person may operate an aircraft below the following altitudes:  a. if the actor fails to remove it after the consent has been effectively terminated or  pursuant to privilege conferred on the actor irrespective of the possessor's consent. except over open water or sparsely populated areas.

vehicle. If the operation is conducted without hazard to persons or property on the surface A helicopter may be operated less than the minimums prescibed in paragraph (b) or (c) of this section. not attached to the structure  Inter-meddling: intentionally bringing about a physical contact with the chattel in owned OR in possession of another.. . provided each person operating the helicopter complies with any routes or altitudes specifically prescribed for helicopters by the FAA. or structure.  Helicopters. powered parachutes.. b) Additional Considerations  Chattel: Personal property: property that can be moved. vessel. and  A powered parachute or weight-shift-control aircraft may be operated less than the minimums prescribed in paragraph (c) of this section  Public Policy: Designed to protect right to exclusive possession of land. and weight-shift-control aircraft. ii. Inter-meddling causes damage.person. Defendant intentionally and w/o permission acts to inter-meddle w/ chattel of another 2. Trespass to Chattel a) Elements   1.  chattel is impaired as to is condition of value  deprived for substantial period  results in bodily harm to possessor or harm to some person or thing which the processor has a legally protected interest.

Ownership not required. P is required to keep it and sue for damage/harm done  P does NOT have to own chattel. so no nominal damages can be awarded  If chattel is damaged. Conversion deal w/ permanent deprivation or complete destruction.  Reasonable force allowed to protect chattel for inter-meddling  Mistake is no defense  Transferred intent doctrine IS applicable  Actual damage is required.  Good faith and mistake are not valid defenses (D mistakenly delivers chattel to imposters. only possess it b) Public Policy  Designed to protect one's interest in being free from intentional interferences with his/her possession of chattel. b) Additional Considerations  Damage is the full fair market value at the time the conversion occurred  Nominal damages may be awarded  Anyone in possession of chattel can make claim. Designed to deal with MINOR interferences. Conversion a) Elements  D acts (or commits an act) with the intent to exercise dominion and control over the chattel of another. AND  the act results in a serious interference with the others rights to own or possess the chattel. D buys stolen goods) . ii.

 Return of chattel unharmed may result only in nominal damages  Transferred intent doctrine is NOT valid  Return of chattel may reduce damages. Consent can be expressed or implied: a) Express – In writing. P must be aware that someone else is exercising dominion and control  Theft is ALWAYS conversion. because conversion is effectively a forced sale of the chattel from P to D c) Public Policy  designed to protect ppl from serious intentional interferences with chattel. Defenses / Privileges A. II. Consent i. they should bring action of trespass to land.subsequent bona fide purchaser cannot be held liable for conversion. even if chattel is returned before P realizes it was gone  Total destruction of chattel is conversion  If P wants to KEEP chattel. so much that a judicial forced sale is required. but does NOT negate liability  If conversion is by mistake. For fraudulent conveyances and merchants “who deal in goods of that kind” . ii. behavior and conduct. in context of . verbally affirming or rejecting b) Implied – Displayed by P's outward actions. Definition: Voluntary agreements by a person with the possession and exercise of sufficient mental capacity to make an intelligent choice to do something proposed by another.

iv. iii. P gave no resistance/objections when physician administered vaccine. Consent to Medical Procedures a) When is implied consent given to doctor for surgery?  Patient is unconscious. players do not consent to ALL batteries during a game. after witnessing other women receiving the vaccine  ie. this may constitute implied consent.  Was there intent?  Did the D violate the rules of the game? v. Consent cannot be given to being punched in the face. and the doctor finds a condition in the same area that was unanticipated and would seriously threaten the P's health or life if not removed. If “local custom” allows public passage over private land and land owner does not act to prevent or bring action for trespass. because a reasonable person would not give consent to this.  In the course of an operation where P has already given consent. or of unsound mental capacity and treatment is necessary for the “preservation of their life and limb” (life threatening emergency situation). which requires:  Telling patient what procedure he/she is going to do .the circumstances  ie. Contact Sports a) Although some offensive and harmful contact is to be expected. intoxicated. b) Physicians normally need informed consent from patients. specifically not to intentional batteries which are prohibited by the rules of the game.

Self Defense i. a) Patients can place limits on consent. Elements a) Person has a reasonable belief in the need to use force to stop an imminent battery b) Person uses the amount of force allowed under law  Amount of force which reasonable under circumstances. or misrepresentation has to be related to the “essential character of the act itself” rather than a “collateral matter”. up to death . who can be part of the procedure.  Telling patient the risks associated with the procedure Telling patient the alternative methods of treatment  After patient knows all of this AND agrees. c) Parents must provide consent for minors. and “do not resuscitate” orders.  Court may overrule parents withholding of consent based on religious beliefs. such as the scope of a procedure. b) Patients may withhold consent for emergency medical treatment based on religious beliefs. but only in life threatening situations  Parents may consent to minor being an organ donor  Parents may NOT consent to non-therapeutic treatments which may endanger minor's safety. deceit. deceit. there is express consent. e) Consent is invalidated if P is incapable of expressing rational will  ie. withdrawing consent in the middle of the procedure. Extremely intoxicated B. d) Consent is NOT valid if it is based upon fraud. as long as they're conscious at the time. or misrepresentation  However. fraud. except in emergencies.

Defense of Others i. f) Use of deadly force is only allowed when P has reasonable apprehension of loss of life or great bodily injury. consider age. the privilege is still allowed even if an innocent party is mistaken for an attacker. size. If a reasonable person would have believed an imminent battery would occur.) h) Injury to Third Party  If innocent 3rd party is injured while person is defending themselves. the privilege expires  Retaliation by victim would then be treated as battery to the aggressor d) Mistake does not destroy the privilege. Home. etc. relative strength of aggressor c) Once aggressor retreats and there is no imminent threat of a battery. work. unless P reasonably believes that bodily harm is imminent. g) Retreat  Common law – Defendant must “retreat to the wall” before using deadly force  Majority – Defendant can “stand their ground” and use deadly force  In the Home – Neither Maj or Min require retreat in the home  Castle doctrine – extends privilege to “stand your ground” to any place where person has right to be (ie. e) Provocation by language alone is generally not sufficient to privilege a battery. Elements a) Person has a reasonable belief in the need to use force to stop an imminent . the transferred intent doctrine does NOT apply. C.

D. Defense of Property i. especially if believe their own or family's safety is in danger. size. Property owners may use reasonable force to protect their property from unlawful entry ii. setting up booby traps and alike iii.  Defendant protected as long as he/she has reasonable belief in the need to use force to protect the victim. If property is not occupied. v. relative strength of aggressor c) Mistake and Injuries to 3rd Parties  Two Theories  Defendant steps into shoes of victim. If property is occupied. a) Likely unlawful entry would happen at night in this case iv. Owner of property may use reasonable force under the circumstances to recover property .. Posted warnings generally do not permit land owner from using excessive force to protect unoccupied property E. Recovery of Property i. If invasion of property is “peaceful”. not force may be used until after intruder has been asked to leave. owner can use deadly force if someone unlawfully enters.. up to death  consider age. owner cannot use deadly force.battery to a 3rd person b) Person uses the amount of force allowed under law  Amount of force which reasonable under circumstances.

Cannot demand payment or signed confession in return for releasing suspect iv. which approximately 48-72 hrs iii. Private Necessity a) In emergency situation which poses imminent danger to the life or property of an individual. Shopkeeper may stop suspect after they leave the store. Public Necessity a) In an emergency situation that poses (to a reasonable person) an imminent danger to a large number of individuals. Merchants have a privilege to use force to detain a suspected shoplifter. Shopkeepers Privilege i. or small group of persons (private). or use the property of another to prevent the danger from occurring AND b) The person who exercises this privilege cannot be held liable for damages to the property H. privilege exists to damage.ii. such as in the parking lot G. or use the property of another to prevent harm from occurring. but only if they are still close to the store. destroy. destroy. After “fresh pursuit” period ends. they will be privileged to damage. Detaining suspect for longer than an hour is probably unreasonable iii. owner has to resolve through legal system F. Owner must be in “fresh pursuit”. BUT b) Those who exercise this privilege CAN be held liable for damages to the property . as long as the merchant reasonably believes a theft has occurred and detains and questions the suspect under reasonable terms (manner and time). ii.

put judgment on record to prevent D from acquiring prescriptive rights. Teachers can also use some amount of reasonable force to maintain order in the classroom iii. Justification i. but the facts don't fit into any of the other privileges ii. J. etc. Military can use force and discipline members in it's ranks and this is all regulated by military law. iii. Types of Relief Available in Civil Lawsuits (Three Types of Money Damages) i. Equitable Relief (non monetary) a) Injunctions/restraining orders b) declaratory judgments ii. Amount of award is unimportant bc it's mostly symbolic (can be $1). Discipline i. a) Those who may occasionally need to use some force to maintain order **************************************Midterm************************************** II. Nominal Damages – small sum of money awarded to the P in order to vindicate rights. The court will accept it when the D clearly should have been able to do what they did. and carry a part of the costs of the action. Parents and those in charge of minors can use reasonable force to maintain order ii. Compensatory Damages – Closest financial equivalency to the injury/harm suffered . pastors. DAMAGES A.c) The danger can NOT be caused by the person who exercises the privilege d) Owner of property being affected cannot kick person off their land or later bring action for trespass if entry occurs due to private necessity I. Applies to people such as flight attendants.

v.. iv. Punitive Damages – Additional sum above compensatory damages meant to punish D and deter wrongful conduct by other parties.. only “one bite at the apple”.. B. damage awards are all inclusive: past. Also tax deductible for D. and future injuries are considered in awarding a lump sum.. Compensatory Damage awards (general considerations) i. Judicial review of jury verdicts in civil trials is limited: most jurisdictions only allow judicial review if award is so low or high that it “shocks the conscious” D. Four basic principles of compensation the patient. Preponderance of evidence 51% < clear and convincing 75% < beyond a reasonable doubt 95% C. b) Personal Injury: 2 types of compensatory damages . a) Intended to “make P whole again” b) Restore P to position before injury occurred c) P is NOT taxed for compensatory damages iv. money is the only tool available to the jury for making the plaintiff whole again iii. the successful P is entitled to recover damages to compensate her for the losses proximately resulting from the D's tortious acts or omission a) injury to property: value or prop lost or cost (conversion) or repair damaged prop (trespass to chattel). Hierarchy of standards of proof i. present. purpose of compensatory damages is to restore plaintiff to pre-injury status as far as possible ii. gen rule. Punitive damages are considered income so they are taxable for P.

Sears. based on personal personal knowledge  Expert testimony Testimony for more complicated evidence: from treating doctor. yes. D's motion for remittitur was denied after judge concluded jury had awarded a reasonable amount. charts. etc. embarrassment. E. she is allowed. loss of life's enjoyments (consortium)... emotional distress. etc.. unless she is actively trying to be disruptive. but still allowed to demonstrate to jury the injuries sustained. General .  P cannot recover unless if costs incurred from tortious injury. b) presence of injured child in the courtroom: is child allowed to attend on trial? Even though it is prejudicial. psychiatrist. economist.  Witness testimony: eye witnesses. Personal Injury Damages (Compensatory) i. . Chapman – Both P's were in car struck from behind by D's employee. health care expenses.Defective space heater made by D burned down P's home causing severe injuries to P and her infant child. treatment was unnecessary. c) Types of Evidence used to support claim for damages?  Demonstrative evidence: Photographs. or medical fees were excessive (unreasonably high hourly fees).  Special – P's out of pocket economic losses. Roebuck & Co. social worker ii. Anderson v. One P suffered seriously injuries resulting in quadriplegia and the other suffered a . Lost wages. a) photographs of plaintiff: are they prejudicial? Yes..non-economic: pain and suffering. Richardson v.000. P sued D for negligence and jury awarded P $2.980. can come up with an actual number.

Five elements of damages: a) past physical and mental pain. as long as amount is reasonable vii. iii. Quadriplegic awarded 22M and other P awarded 100K. v. Judge can also increase the amount of the award if he/she thinks it's unreasonable through additur. b) future physical and mental pain. . Judge may use the threat of awarding a new trial in order to compel P to accept remittitur. SC determined jury's award of 1. Court also concluded that jury should have only awarded 50k in damages for facial laceration bc it was more appropriate for pain and suffering in light of evidence. c) future medical expenses  Anticipated costs presented by expert testimony (doctors and economists). iv.  No recovery for anxiety over paying medical bills  P must be conscious after injury (esp applicable if they died at time of injury)  Damages generally NOT awarded for FEAR of contracting a disease.trial judge determines whether the damages awarded by the jury exceed the maximum amount the jury could have reasonably awarded. and if it does. the trial judge can reduce the amount of damages awarded on request by D through remittitur.5M for quadriplegics future medical expenses was unreasonable (based on economic expert testimony) and reduced by 1M to more closely match estimate.facial laceration. Jury can award more than P asked for. Upon remittitur. “Maximum Recovery Rule” . vi. but may be awarded for actual exposure.

may grant a motion for new trial conditioned upon D's willingness to pay a larger sum. 1. in order to avoid the cost and hassle he may condition the granting of a new trial in the following manner:  Remittitur: in cases of excessive verdicts. F. No damages for “reduced life expectancy” d) loss of earning capacity. Some jurisdictions allow damages to be recovered for “loss of enjoyment of life” x. Judicial Control of Compensatory Damages i. Some jurisdictions allow jury to take inflation into account. the court although less frequently. Can be adjusted for inflation. the court may grant a motion for new trial which is conditioned upon the P's refusal to accept a lesser amount. e) permanent disability and disfigurement.  Additur: In cases where the verdict is inadequate or excessively low. Trial Judge (through motion for new trial) can disturb the jury's findings on the amount of damages only if the verdict is so excessive or so inadequate as to demonstrate the jury acted contrary to the law (ie passion. prejudice. a) Note: court can set aside the verdict and grant a new trial on both liability and damages (or it can allow the liability portion of the trial to stand and orders a new trial on damages). viii. and  according to objective “tables of income”. b) If judge decides to grant new trial on damages alone. rather than according to instructions). . but generally this is limited to economic damages only. No damages for litigation induced stress ix.

ii.G. Tort Reform Measures (statutory limitations) a) caps on damage awards. vacation pay).ie from preponderance of evidence to clear and convincing c) Modification of collateral source rule: Legislature can change rules allowing evidence of payments received by P from a collateral source. i.  * Illinois has legislation permitting award to be reduced by 50% for collateral source payments for lost wages and 100% for medical bills. then P is entitled to receive compensation bc the care was a gift to P and not to D. medical insurance. H. or governmental benefits. Collateral Source Rule – Trial court must exclude from evidence payments made to the injured P from sources collateral to the D. employee benefits (sick leave. iv. disability insurance. * If family member gratuitously cares for P. non-economic damages. Benefits received from collateral sources do not subtract from the amount of damages P is entitled to receive.limiting amounts of recovery in medical malpractice cases. . Collateral sources may include: gratuitous or discounted medical services. D is NOT allowed to introduce this as evidence for the jury to consider in determining special damages. P negotiates w/ hospital for a 50% reduction in medical expenses. Legislative Control of Jury Awards for Compensatory Damages i. ie. iii. claims against the government b) increasing standard of proof: may change the SOP . life insurance.

viii. etc. Many settlements are payed in a lump sum. b) Attorney's fees take a substantial portion of P's recovery. Proceeds of the lawsuit are paid back to the insurance generally requires that a P participate in lawsuit on his/her behalf brought by the insurance co. herself.. against the D. during the time which P is recovering or for a permanent loss. Parties are generally not awarded attorney's fees.) d) Allowing the full amount assists the jury in properly awarding damages for the P's injuries. c) Subrogation . society. I. household services..  Exceptions: impeachment of the P's testimony that he/she had paid for the medical expenses.  The P has placed her financial condition at issue. However this is rarely true. Attorney's representing Ps work for a contingent fee. (some of money may actually go to insurance co. Loss of Consortium: Court may recognize claim by P's spouse for loss of conjugal relations.v. because: a) P has usually paid the insurance premium and has lost sick leave.  D can question whether P's financial condition is not a dire as they claim vi. vii. Mitigation of Damages . ix. but sometimes D will pay a structured settlement (periodic). companionship. D will often argue that P is getting a windfall when using collateral source rule.

cost of procedure d) 4. . Can limit recovery for lost wages as well as pain and suffering J. vindictive damages. ii. Creatures of Common Law – legislature can modify or abolish them. What are they? Additional sum over and above the compensation of the P for the harm suffered. Terminology: Exemplary damages. and deterring others from wrongful conduct iii. Test for whether P has acted reasonably in not receiving medical treatment (ie surgery) to reduce injury (if P is claiming injury is permanent) a) 1. probability of success c) 3.i. smart money ii. nature/hazard of operation b) 2. Test: D conduct must show reckless disregard for rights of others (willful. Punitive damages are constitutional. warning D not to repeat conduct. recklessness). iv. a) Purpose: punish the D. risk iii. pain e) 5. P has a duty to mitigate damages (doctrine of avoidable consequences) – does not allow recovery of those damages that P could have avoided by reasonable conduct on the part of the P after a legal wrong has been committed by D. wantonness. *** Needs to be reckless conduct or intentional conduct. but not merely negligent. v. PUNITIVE DAMAGES i.

UNLESS there are way too high. Amount of Punitive Damages i. Punitive damages are permitted when the D has committed an intentional tort or has acted recklessly. a) May be allowed w/ only nominal damages  ie. (Does not amount to constitutional “taking”. x. Compensatory Damage award as prerequisite. P was awarded punitive damages w/ only nominal damages when D committed intentional tort of trespass by driving bulldozer over P's land after P repeatedly refused to give D permission to do so.a) P has no right to punitive damage award. b) Jury has COMPLETE discretion to refrain from awarding punitive damages. Negligence.51%) vii. Intentional torts/reckless conduct. Cheatham. Generally. Evidentiary proof required: clear and convincing evidence standard (75%) a) higher than negligence (preponderance of evidence . c) States are allowed to redirect a portion of punitive damages away from P into a separate fund. Punitive damages generally are not allowed for conduct that is merely negligent even if the conduct causes severe damage.) vi. Constitutionality: SCOTUS finds punitive damages are constitutional. ix. NOT available against estate of deceased tortfeasor. a compensatory damage is required before a punitive damage award is given. They impose a three part test: . even when there is proof of intentional/reckless conduct. and perhaps even eliminate punitive damages all together. K. viii.

SCOTUS reasoned that the punitive damages were too high because although State Farms actions were reprehensible. b) 2. LC reduced punitive damages from 145M to 9M. which was at a ratio of 145-1 w/ the compensatory damages.  Seems to be least binding element of the test. Difference between the punitive damages awarded by the jury and the criminal penalties authorized or imposed in comparable cases. Degree of reprehensibility of D's conduct (how bad was it)  D's conduct is “so reprehensible as to warrant the imposition of further sanctions to achieve punishment. Also. the state SC was effectively trying to punish State Farm for behavior which took place out if its state AND had little connection to the injury to the P. since the applicable criminal penalty was 10k max. especially when punitive damages are exceedingly substantial. d) SCOTUS rules in a maritime case that ratio should be 1-1 for compensatory and punitive damages. The ratio between comp and punitive damages  Only single digit ratios are permissible c) 3. but is influential. Apparently the LC on remand didn't decide to pay too much attention to the third element of the rule though.a) 1. Campbell. they did not justify such a huge award. which was a 9-1 ratio w/ the 1M award of compensatory damages. e) * Illinois has a 3-1 ratio set by legislation and adheres to the “clear and . and SCOTUS though this was bogus.  Upon remand in State Farm v. This is not binding on the states.

Other jurisdictions hold that the wrongdoer must pay a higher premium for this type of insurance. the D's counsel may not take advantage of this because it amounts to admitting to the wrongdoing.convincing” standard. NEGLIGENCE A. However. Some jurisdictions have concluded that a the punitive damages are meant to punish the wrongdoer. h) * Vicarious liability for Punitive Damages: Most courts take the position that the principal “vicarious” individual or corporation is only liable for punitive damages if the principal authorized or ratified the act. . III. was reckless in employing or retaining the agent. g) Some jurisdictions allow for the D to show that they have been criminally punished for the same wrong in order to lower the award of punitive damages. f) Some jurisdictions consider the D's wealth in determining the amount of punitive damages. so the burden should not be shifted to others in the form of higher premiums. which is an effective punishment and deterrent within itself. Conduct that falls below the standard of care established by law for the protections of others against the unreasonable risk of harm. Definition i. i) Insurance Covering Punitive Damages: Jurisdictions are split as to whether insurance companies should be held liable to cover a tortfeasor's punitive damages. or the agent was employed in a managerial capacity and was acting in the scope of employment.

or do something that a reasonably prudent person would not do... ii. would open up the floodgates to litigation otherwise. guided upon those considerations which ordinarily regulate the conduct of human affairs. Duty (question of law) ii. However. Causation a) Actual Cause (cause and effect) b) Proximate Cause (reasonably foreseeable) iv. Damages C. Breach of Duty a) Look at facts to see if duty has been breached iii. prudent) person would exercise under the circumstances. D.ii. not held liable because the temp causing the main to break was . Waterworks co. Elements i. may be negligence if it was a loaded shotgun (other inherently dangerous weapon). would do or doing something which a prudent and reasonable man would not do. (temperature in ordinary years). Negligence is the omission to do something which a reasonable man. The failure to exercise the level of care that a reasonably prudent (ordinary. Courts cautious not to disturb rights of property owners. Leaving a golf club lying on the ground on one's own property does NOT constitute negligence if someone else uses it to injure another person. ii. B. i. reasonable. i. Reasonable person is expected to act with reference to the average circumstances.

* The test is not of the balance of probabilities. character and location of the premises . a) Where the dangerous actions of the passenger are NOT foreseeable. the driver involves the car they are operating in a collision. ii. so a prudent person wouldn't anticipate having to construct water main to withstand this temp. A drivers failure to prevent dangerous foreseeable actions of a passenger may constitute a breach of duty of care to other passenger and the public and therefore be grounds for a claim of negligence. considering the following: i. prob no negligence for driver. In this jurisdiction it was law that drivers owed a duty to protect passengers because it is foreseeable that they may be injured if. (bc action prob not foreseeable) iii.record breaking low. E. iv. through inattention or otherwise. F. then there is no breach of duty. a) D's defense could raise argument of contributory negligence. since P could have also stopped passenger from jerking the wheel. but of the existence of some probability of sufficient moment to induce action to avoid it on the part of a reasonable mind. a) If driver would have only jerked the wheel once causing the crash.. Passenger jerked wheel of car two times eventually causing care to crash and driver only laughed it off after the first time rather than taking action to prevent it happening again. People have a duty to use reasonable care to make premises safe..

vi. Benefit: Owner of a vacant lot w/ pond is not required to fence property or fill in pond in order to make it safe. then prob no DOC.ii. but it is acceptable. then D does have duty. purpose for which premises are used iii. probability of injury therefrom iv. Cost vs. Risk v. vii. . because the danger under the circumstances outweighs the slight inconvenience of boarding up the well.. the relations that the precautions bear to the beneficial use of the premises (will the precautions create a burden on using the premises?) a) D held negligent when child was injured playing on railroad turntable bc the switch was not padlocked. only held with a pin and P was likely an “anticipated trespasser”. Utility: Society benefits greatly from railroad system. because the cost and burden upon the owner of the lot would outweigh the potential danger.  Cost of padlocking the switch was minimal. However. a) When the benefits outweigh the risks. Although inherent danger of railroad is great utility and therefore acceptable. if just a trespasser. D owes no duty b) * But when risk outweighs the benefit and prevention is not cost prohibitive. the owner of a vacant lot which has an open well may be negligent if a child falls into the well and the owner knows children play on the lot. and there is a certain amount of inherent danger in this utility. the cost of preventing the danger was minimal in comparison to the possible risk.. precautions necessary to prevent such injuries v.

. P=probability of harm. H. * In determining whether a D has acted reasonably under the circumstances. Carroll Towing where gov had contracted for someone to be on barge during daytime. G. then D will owe a duty of care to the P. Contract made burden 0.. R3d of Torts (similar to the “Hand Formula”) . then the act/conduct is negligent. ii.  Factors determining risk and utility are balanced. a) B= burden. Court in determining negligence may apply the “hand formula” i. If the risk outweighs the utility. When B is less than P x L. a court can consider the cost for acting reasonably.  Would be decided differently today considering it is much cheaper now to install guardrails.viii. a) D held not negligent when car crashed through insufficient and dilapidated guard rail bc at the time (1920s) it would have been cost prohibitive for government to install sufficient guard rails on all roads. L=gravity of harm b) Only works well when Burden is 0. Different Methods of Determining Negligence i. ie in the case of US v.KNOW THIS . this risk is unreasonable and the act is negligent if the risk is of such magnitude as to outweigh what the law regards as the utility of the act or of the particular manner in which it is done. The Risk-Utility Method a) Where an act is one that a reasonable man would recognize as involving a risk of harm to another.

every-day. the “plain. The person on the street. rides the bus. mows the law. ordinary. person.. A reasonable person. The standard of whether a person has acted negligently is OBJECTIVE and not SUBJECTIVE. the person who reads the paper. magazines.. is assumed to know that when a tire is worn through to the fabric. a) * The law required the driver and owners of motor vehicles to know the condition of those parts of their cars that are likely to become dangerous where .a) a person acts negligently if the person does not exercise reasonable care under all circumstances. whether car owner or not. Primary factors to consider in ascertaining whether the person's conduct lacks reasonable care are:  the foreseeable likelihood that the persons conduct with result in harm  foreseeable severity of any harm that may ensue  the burden of precautions to eliminate or reduce the risk of harm I.” iii. a) The defendant will be judged against how a “reasonably prudent person” would have acted under the same circumstances. THE STANDARD OF CARE i. b) The reasonable person is both male and female. The failure to exercise reasonable care UNDER THE CIRCUMSTANCES. a) Makes negligence more “elastic” by considering the circumstances b) Who is the “reasonable person” and what should we know about them? ii. that the tire is defective and may be dangerous to drive on.... drives a car.

the flaws or faults would be disclosed by a REASONABLE INSPECTION.  Person from city disturbs wild animal  person from warm climate hasn't driven in snow iv. this may be sufficient evidence to establish that the D ..  *Jury is just a well qualified to pass judgment as to the risk of danger in the condition of an article in universal use (eg tires) under a given state of facts as an expert. b) Other things reasonable people are expected to know  wood and paper will burn  gravity – what goes up must come down  roads/highways are slippery when wet  memory: not forgetting something for a reasonable period of time c) Does NOT matter if D has come into contact with the information common in a particular community.. The law expects drivers and owners of cars to understand the danger of the defects that can be discovered by a reasonable inspection. Custom and Usage SOC a) When certain dangers have been removed by a customary way of doing things safely. the custom may be used and proved to show that D or P has fallen below the required standard.. b) For example – when proof of an accepted practice is accompanied by evidence that the D conformed to it.

the jury must be satisfied with its “reasonableness”. but only if the custom is “reasonable”. . v. but if there's a huge pothole. Before it can be. a) Custom if for drivers to driver on right side of road. However.  Custom of railroad works standing on cars when connecting is not reasonable when cars are icy. b) D may present a custom or usage in order to show that they were acting reasonably.. this may be sufficient evidence that D did NOT act w/ due care. when proof of an accepted practice is accompanied by evidence that the D ignored it. a common practice or usage is not CONCLUSIVE evidence of negligence. but again the custom must be reasonable under the circumstances still. then then custom is not reasonable..aced with due care c) likewise.. a) TEST: Is the custom “reasonable”?  What's the risk of not following the common practice/custom?   Is the shower glass likely to break and cut someone? What's the cost?  Will cost cause landlord to have to go into bankruptcy to afford replacing the glass? vi.. * Custom and usage CAN be used as evidence to establish a breach of duty. then the statute prevails. c) If custom violates a statute.

just in the CONTEXT of the emergency. darting children and animals. sudden. SOC for People w/ Disabilities i. b) At common law it was NOT extended to mental disabilities. or hydroplaning when it is raining.. One who suffers from disabilities is held to exercise or to take the precautions which the ordinary reasonable man would take if he were suffering from the same physical disability (eg blindness. K.. deafness. only physical.J. physically handicapped.. b) Person must still act reasonable. c) Voluntary intoxication is NOT considered a disability. such as children darting in front of car in a school zone / when seen walking on sidewalk. swooping airplanes. d) D must ANTICIPATE some emergencies. no an emergency. One who is in an emergency situation is not held to exercise the mature judgment required of a person who operates under circumstances that allow him or her the opportunity to take deliberate action (well-reasoned). falling boulders. etc).. Rays from setting sun is common and expected. . a) What is an Emergency?  Event must be unforeseen. These circumstances are not unexpected/unforeseen.e. and unexpected. c) Emergency doctrine does not apply if D acted to cause the emergency. SOC Under Emergencies i...  Examples of emergencies: encounters w/ black ice on highway. a) Hold handicapped people to level of care as a reasonable/prudent person with their same handicap.  i..

epileptic seizure. Minimum age for negligence is around 4 years old and maximum is 17. scooter. downhill skiing. because it is unanticipated and out of D's control. and experience. GENERAL MAJORITY RULE: People with mental illness are judged by standard of reasonably prudent person who is sane. this is just talking about an “emergency situation”. motorcycle. i. ii. playing golf. or fainting should be treated alike and not under the general rule of insanity. No exceptions. * This means that more care may be expected of a child w/ superior intelligence. iii. M. a) Def of inherently dangerous: activities which could cause grave danger to others or the minor themselves. . a) * Really.Provides an exception if sudden mental incapacity equivalent in effect to such physical causes as a sudden heart attack.SOC for Insane People i. in which case they will be held to the same standard of care expected of the reasonably prudent ADULT person. Children are are under duty to exercise same care as child of his age.. stroke.L. building fire outdoors. intelligence. Wisconsin rule (minority) . * UNLESS the child is engaging in inherently dangerous activities. ii..  Special standard for children was applied: riding bicycle.  Examples of “inherently dangerous” activities: driving a car.

iii... UNLESS the negligence is so obvious that the layman (jury) is capable of judging for themselves (sponge/scissors left in patient after surgery).  exert best judgment in the litigation entrusted. accountants. GENERAL RULE: Professional are held to standard of care of a person with knowledge. and. SOC for the Professional i.. rather than subjective test comparing D to professional w/ similar skill. i. training. (objective test. and  exercise reasonable and ordinary care and diligence in the use of skill and in the application of his/her knowledge to his client's cause. Burden to establish SOC is on P. even if following custom.N. experience) a) P must produce expert testimony to establish the standard of care. but evidence to establish SOC can be provided by EITHER parties. Broad definition. bc statutes always trump custom. plumbers.  D may try to establish professional SOC which is diff from what P claims. prob does fall below SOC. engineers. skill. and ability necessary to the practice of his/her profession. training.. and skill (or ability and competence) of an ordinary member of the profession IN GOOD STANDING. Professionals are those who undertake any work that calls for special skill (usually requiring special training and licensing). b) *when attorney engages in practice and take on a client.e... he represents that:  he or she possesses the requisite degree of learning. ii. not just doctors and lawyers. . Gen Rule: Mere error of judgment by professionals does not fall below SOC a) If lawyer acts contrary to statute. etc.

and makes obtaining expert witnesses difficult. Modified Locality Rule: measured by conduct of other doctors in same or SIMILAR communities. NOT the subjective standard by ONE other doctor. etc. Establishing the SOC for Doctors. but the SOC followed by the profession.  Justification for following National SOC is that locality rule is based upon a time when establishing a national standard was not practical due to restraints on traveling and accessibility of information. a) 1. P. Physicians duty of INFORMED CONSENT ... Nurses. Professional negligence is the equivalent of “malpractice” O. National Standard of Care: conduct measured by national standard of care. LA and Chicago. leaving sponge/scissors in patient).. (ie Chicago and New York.. not the case today. ii.. Depending upon jurisdiction. (Exception is for when negligence is so obvious that it can be identified by a layman.e. Strict/Basic Locality Rule: doctors conduct measured by other doctors in the same locality or same community.. there are THREE methods for establishing medical SOC. P must produce EXPERT WITNESS to testify and establish the objective SOC.... b) 2.. awards communities w/ doctors of lower quality. Laboratories i.  Strict and modified locality SOC also poses issue of whether or not communities are actually similar.iv. i..) c) 3. standardized training through a system of national accreditation and certification (Specialists are held to this standard)..

explains the “material risk” involved if the doctor performs the treatment  material if it is likely to affect patients decision d) 4. DUTY OF INFORMED CONSENT: If doctor breaches this DUTY. discusses alternative methods of treatment. patient's consent is VOID and the doctor will be responsible for the consequences iii. Doctors explains the nature of the procedure. and c) 3. and b) 2. risks are already known by patient or everyone  2.  Exceptions  1. etc). What is the duty of informed consent? a) 1. e) *Two approaches in evaluating whether a doctor has effectively complied with the duty of informed consent:  ** MAJ RULE.i.Patient Focused Standard: what reasonable patient would want to know . Doctor has DUTY to obtain patients INFORMED CONSENT ii. that may affect the doctor's medical judgment. disclosure would be detrimental to health of patient  3. whether research or economic. must inform patient of any personal interests unrelated to the patient's heath.Doctor Focused Standard: what reasonable doctor believes the patient should know  MIN RULE . emergency situations where the P is in no condition to determine what treatment should be given (unconscious. in shock.

 This SOC will have to be established through expert testimony  *However. Breach of Duty – facts * c) 3. IV. A violation of the statute establishes prima facie evidence of negligence: a) 1. NEGLIGENCE PER SE A. and when the harm/injury is is the type of injury meant to be . the courts accepts the formulated standard and applies them: ii. * Short hand approach to establishing the elements of “duty” and “breach of duty” C. A statute can be looked to as the standard by which negligence may be determined: i. when a legislative body has generalized a standard from the experience of the community and prohibits conduct that is likely to cause harm. Duty – question of law * b) 2. if P is bringing a cause of action for battery and not negligence. establishing negligence through a violation of statute is a separate approach to establishing negligence (there can be a duty under the common law and under statute) D. Negligence per se .The violation of a statute is the negligence “as a matter of law” when the violation results in injury to a member of the class of persons intended to be protected by the statute. Doctor operates on patients left eye when consent was only given to operate on right eye). Damages B. Causation – facts d) 4. then no expert testimony is necessary bc the only question is whether the patient knew and authorized the procedure (ie.

* Courts apply a two part test for applying a statute as the standard of care i. is there a corresponding DOC at common law? . (statute against muffler “cut out” meant to prevent harassing noises AND noise which interferes with safe driving). e) List of considerations for applying criminal law statutes:  1.. then judge must determine whether imposing tort liability for violation of the criminal statute is FAIR.most important to consider d) If not.. * If criminal statute involved. it is likely that following the criminal statute would be “disruptive”.prevented by the statute (this is a judicial determination). a) ** Statutes may have DUAL purpose. Can look to the legislative history for help determining whether the P is in the class of people intended to be protected and whether the injury was the type meant to be prevented by the statute. WORKABLE. P's injury was the kind of injury for which the statute was designed to prevent a) ONLY ESTABLISHES DUTY AND BREACH iii. * Courts have a large amount of discretion when deciding whether a statute applies for a claim of negligence per se. doesn't have to limited to preventing only one type of injury or protecting one type of person. E. AND WISE a) Civil courts not bound by criminal law b) Can choose to adopt criminal law statutes if it's a good fit c) Is there a corresponding common law duty of care? . P is a member of class of persons for which the statute was meant to protect ii. iv.

 * Jurors have NO discretion to disregard the unexcused violation of the statute. MAJORITY . whether injury is the direct or indirect result of a violation of the statute? v.  D is allowed to offer an excuse.. a) Most of the time. a criminal act by a third party is considered an intervening cause and negligence is passed to the criminal. In cases involving negligence per se. Is it practical and desirable to use the criminal law statute? Does the statute give adequate notice of what conduct is required of them? Is it obscure? Does it clearly define the prohibited conduct?  3. 2.  * Common excuses allow by courts  violation is reasonable bc of actor's incapacity  neither knows of nor should know of the occasion for compliance . the court can declare the violation is negligence as a matter of law. Ruinous liability disproportionate to seriousness of the D's conduct?  5.. Effect of Negligence Per Se i. If he/she does not do this.. which is a violation of a statute. UNLESS the criminal act is FORESEEABLE. Leaving keys in car while running.e. the court must consider whether D's violation of the statute is the proximate (foreseeable) cause of P's injury. does it create liability without fault?  4. foreseeable that criminal could steal the car and injure a pedestrian if keys are left inside while car is running.. F. Three possible approaches a) * 1.The UNEXCUSED violation of a statute is negligence per se.  i.

. provided that certain elements consistent with negligent behavior are met. Definiteion of RES IPSA LOQUITUR: The thing speaks for itself. It is a method of “indirect” proof of negligence (duty.. Violation is negligence per se. The mere fact that the accident occurred is evidence of D's negligence ii. * TEST: 3 parts a) 1. How are these elements established? i. The event/accident would not normally happen if proper care was observed c) 3. Look to past experiences and general knowledge held by members of the community . i.. damages) C. Provides a common sense inference of negligence where direct proof of evidence is lacking. Instrumentality causing injury is within the exclusive control of the D b) 2. It is a rule of circumstantial evidence. breach. i. (Also minority) V. The injury must not be due to plaintiff's voluntary actions D. tail light goes out while driving  he in unable after reasonable diligence or care to comply  he is confronted by an emergency not due to his own misconduct  compliance would involve a greater risk of harm to the actor or to others  walking on the snow covered sidewalk/side of the street b) 2. Based of common sense INFERENCES B. causation.  no excuses allowed (minority approach) c) 3. Violation is evidence of negligence  jury has role in deciding whether to use statute for evidence. Circumstantial Evidence and RES IPSA LOQUITUR A.

. planes don't just crash.. See below: b) i. roller coaster don't just derail.. c) Some event do commonly occur w/o negligence.. G. may also just be a common sense inference.. but of other facts from which deductions are drawn. bc D did not have exclusive control.. tires blow out. * Allows introduction of circumstantial evidence in order to survive pretrial motions and make it to trial phase i.. showing indirectly the facts sought to be proved. Does NOT guarantee P will prevail. then RIL does NOT apply.  Exclusive control is not limited to the actual physical control of the instrument that causes P's injury. d) If injury is attributable to SEVERAL sources. they will still need to produce some evidence during the trial..hotel guest have RIGHT to control furniture in their room. and could throw it out the window. Glue which allows complaint to go to trial. F.. ceilings don't just collapse. people fall down stairs. rather it also applies to those with the “right to control” . Circumstantial Evidence: Testimony not based on actual personal knowledge or observation of the facts in controversy.e. elevators don't just fall. E.e..a) * This can be demonstrated through witness and/or expert testimony. etc. UNLESS there is negligence. Banana example: i. i. If Banana is yellow? It's ripe . especially when P lacks solid evidence ii.

RIL MAJORITY AND MINORITY VIEWS *** On Exam*** i..ii. ii. it creates a rebuttable presumption and shifts the burden of proof to the D to come forth with evidence to show that he or she was not negligent. such as how long the banana has been sitting around. iii. Minority a) 1. b) Memorize def of inference  * A logical and reasonable conclusion of a fact not presented by direct evidence but which. by process of logic and reason. in the absence of explanation. to make out RIL against the driver. iv. Black? Rotten. Brown? Going bad. a) Reasonable people can deduce/infer these things and it can lead to further inferences. a trier of fact may conclude exists from the established facts. * There is general agreement that the fact that a car leaves the road and crashes into a stationary object is enough. Majority a) * It creates an inference of negligence (permissible inference) which the jury may draw or not as their judgment may dictate. . I.. it creates a rebuttable presumption that requires the jury to find (or conclude) negligence if the D does not produce evidence sufficient to rebut the presumption b) 2. Green? Not ripe. H.

Can duties of care under tort of negligence arise out of K relationships? .  Method used by courts to “smoke out” the negligent party  * This is a minority approach. the K action developed later than tort liability. torts) c) Damages (only tort law provides punitive damages) d) Defenses (K recognizes infancy and statute of frauds) e) Remedies (summary judgment. VI. * If multiple Ds are involved and P was unconscious at time of injury it would be impossible for him to figure out who was responsible for the injury w/o witness testimony. This distinction was important for several reasons a) jurisdictional purposes b) statute of limitations (K v. historically. i. or they will be held jointly negligent.J. Contractual duty A. Breach of Contractual Duties VII. as a result it became necessary for courts to try to figure out whether P's actions fell under K law or tort law. an area where contract and tort law intersect B. a) Therefore court may apply RIL in order to compel the Ds to testify and show individually that they are not at fault. C. Its arrival allowed for another avenue of recovery for the P. attachment. arrest) D.

Allow the P to choose the venue and the cause of action ii. Distinguishing between misfeasance v. Court determines the cause of action iii.) d) Professional Malpractice Actions (K and Negligence) E. then the possibility of recovery under negligence is greatly increased  Privity not required iv. Carroll Towing Co. YES! a) Product liability actions b) misrepresentations (fraud) c) K arrangements (where party agrees to do something and a breach of the K results in harm to the P) (US v. only K action lies w/ nonfeasance  * K requires privity . nonfeasance: inaction or a failure to take steps to protect P from harm (when there is only the promise to do something and a breach of the promise)  Generally. Three approaches taken by Courts in determining whether to allow the P to sue and recover under K or tort law: i. nonfeasance. The court looks to whether D's failure to honor the K provisions results in misfeasance and nonfeasance a) What is misfeasance: Active conduct which works a positive injury to others (When D misperforms the K)  If the D's actions constitute misfeasance.i.

.  Buick (D) used defective wheel sourced from 3rd party manufacturer in building a car. There was no .  3. EXCEPTION TO THE RULE OF PRIVITY – PRODUCT LIABILITY a) Product manufactures are liable REGARDLESS of privity when:  1. (direct contractual relationship). not just the distributor).. No privity between D and P. a) Courts concerned with opening floodgates of litigation. b) Required to bring action based on K alone. What is “privity”? a) That connection of relationship which exists between two or more contracting parties. since hypothetically anyo pedestrian injured by coach could also bring action against D w/o the requirement of privity. Example of nonfeasance: Mechanic (D) has K w/ postmaster to maintain coaches. The product will not be tested further by the purchaser or 3rd party end user. Since D did not take any POSITIVE action which injured P. which caused injury to end user P. P is out of luck. The manufacturer is aware of this probable danger.  2.. D fails to properly maintain coach. which is not possible w/o privity. which breaks down and injures driver (P).  4. The manufacturer is aware that the danger will be shared by others than the immediate buyer (i.. vi.v. only K claim available. 3rd party end user.e. only D and P's employer. vii. It creates a thing which poses danger to life or limb if negligently made.

A person must be in privity of contract before he or she can sue a professional for malpractice. a) Nonfeasance exists where D has really done nothing at all.. tainted water). despite a lack of privity of contract between the attorney and the party to be benefited. Malpractice and Privity i. If D has given their assurance that an action has been properly carried out. ix.  This is the grandfather of product liability cases.. viii..privity between D and P because of middle man auto retailer. but court found for P due to Buick's responsibility to construct safe cars. F. Utility Companies a) Generally citizens cannot bring action of negligence against a utility company for failure to adequately supply a utility UNLESS the utility co produces a defective product (i. then this will constitute misfeasance. D FAILS to take action. .  Many times P is not in privity w/ D (only in privity w/ city)  However...e. courts view producing a defective product (tainted water) as misfeasance bc the lack of action goes so far as to constitute a positive action resulting in injury. a) EXCEPTION: An attorney may be liable for damage caused by his or negligence to a person INTENDED to be BENEFITED by the attorney's performance.

VIII.) b) captain and crew (can't watch crew drown) c) employer and employee  *only during course of employment d) custodian and those in custody (jailor and prisoner) e) land owner and person entering onto land (trespasser. Universities do NOT owe a duty of care to protect the private lives of its students i.e. railroad. Special Relationship between P and D a) common carriers and patrons (in-keepers. the assigned could sue for malpractice. invitee) f) teacher and student g) husband and wife h) parent and child . public utilities. C. etc. *However. B. AFFIRMATIVE DUTIES TO ACT A. Doctors can even evaluate P and then refuse to provide services if they want w/ out negligence. EXCEPTIONS i. and is not legally enforceable. Doctor's Hippocratic Oath is a MORAL obligation. airplanes. I. if attorney botches a will and assignees receive nothing as a result. licensee. There is NO duty of care to come to the rescue. universities DO owe DOC to protect students' safety will in class or in dorm. aid. or assist someone in peril. i.

(shutting off escalator in reasonable amount of time)..ii. Voluntary assumption of duty a) i. iv. P is injured by instrument under control of D a) Escalator injures child... iii. which relies upon the aid their detriment. department store should take reasonable steps to prevent further injury.  911 rescue calls. D's negligence has caused injury to P v. you must see it through. . Once you begin he performance of rendering aid..e.  Reasoning is that you may have dissuaded another person from attempting to help. duty exists for D to take reasonable precautions against other people being injured. b) D creates dangerous condition w/o negligence.  When D voluntarily attempts to aid P.  No liability for breach of confidentiality as long as they make a diagnoses following acceptable professional standard of care. Special Relationship between D and 3rd party who injures P a) Psycho-therapist and patient: Therapist has affirmative duty to notify P of potential harm if D is aware of the danger posed by patient (3rd party) and D has the ability to control the patient's actions..  Employer (D) gives medical screening and fails to notify employee of disease..

normal flow on surface water. leaning. Licensees. or should have known. Anything to do w/ building on land. planting . DOC Owed to Occupiers of Land: Trespassers. that the tree is defective and fails to take reasonable precautions. b) EXCEPTION: Defective trees which show signs of being defective. Artificial Conditions) i. foul swamp. Affirmative Duty Statutes a) Hit and Run Statutes: Requiring a driver involved in accident to stop and provide aid. Outside of Land (Natural vs. * main idea is that P relied upon D's assumed responsibility to act and the reliance was to P's detriment. c) Good Samaritan Statutes: Designed to encourage doctors and medical professionals to render service by limiting liability when acting as a “good Samaritan”. Land owner DOES owe duty of reasonable care to persons outside of premises from injury caused by ARTICFICAL conditions on his/her land. etc. IX. falling rocks.. parking lot where water collects. Land owner. a) i. vi. and Invitees A.e.e. no leaves in the summer. a) i. b) Hospitals: Requiring Emergency Rooms to provide medical screening / exam and stabilization of patients who show up at the emergency room.. rotted out. no bark. ii. Land owners have no DOC to protect persons outside of premises from injury by NATURUALLY OCURRING things on the property.  Land owner is liable for negligence if he knows.

Salesmen. B. at which point landowner must make all reasonable efforts to prevent injury to others by means UNDER THEIR CONTROL. b) Licensees  Who is the licensee?  Persons who come onto land to further their OWN agenda   i. DOC Owed to TRESSPASSERS a) Who is the trespasser?  Someone who willfully and unlawfully enters upon land of another w/o permission. * For DISCOVERED trespassers.e.  Duty only arises once trespasser is discovered. land owner has duty to exercise REASONABLE CARE.  Land owner does not have to be on “look out”. On the Land i. but which the landowner is aware. building baseball stadium.   Undiscovered trespassers assume the risk of their injuries.trees next to highway. .  * Land owner owes NO DOC for UNDISCOVERED trespassers. Incidental Services DOC is to warn the licensee of any latent dangers which are UNKOWN TO LICENSEE. Social Guests.

etc. business customers. community centers  State and Federal land (washinton dc mall) d) * DOC to INVITEES  Landowner owes duty of reasonable care to the invitee to: .   i.  Persons who enter onto land w/ goal of providing something valuable to the land owner. swimming pools  public golf courses.c) Invitee  Who is the invitee?  Person who enters land (w/ express or implied invitation) in furtherance of the owners business.  no purchase needed by “customers” Who are public invitees?  Persons attending free public lecture/concerts  church services and meetings  college reunions  public places of amusement  municipal parks and playgrounds  public libraries. patrons at concerts.e. rest stops.

and in either case the DOC shifts. and . f) Duty to invitees not necessarily discharged by posting warning signs. g) Child Tresspassers  Owed a higher DOC than adult trespassers  A possessor or land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if  the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass. inspect the premises to make them safe  2. repair or fix dangerous conditions  *basically owner has affirmative duty to make premises safe for invitees e) * If invitee enters part of the business which you they do NOT have permission to enter they become a trespasser or licensee. and  the condition is one which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children. depending on whether the owner has given permission. 1. Owner must take affirmative action to remove any obvious hazards as long as it's not to difficult to do immediately. do not discover the condition or realize the risk involved in intermeddling with it or in coming with tin the area made dangerous by it. because of their youth. and  the children.

for defective conditions at the time of the lease. and  * the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect them  If children have never entered the premises and there's no reason to think that they would.  * Exceptions  Where undisclosed dangerous conditions (natural or artificial) are unknown to lessee but known to lessor (and lessor is aware lessee will not discover)  dangerous conditions to persons outside of the premises (defective trees and artificial conditions) . recovery may be denied. h) Fire Fighter and Police  Generally considered licensees. at least for kids that can read. i) Lessor and Lessee  At common law lessor owes NO DOC of lessee or others entering the land. which land owner owes duty to warn about hidden dangers which land owner knows or should know about.  A precise warning will discharge the landowners duty. the utility to the possessor of maintaining the condition and the burden is are slight as compared with the risk to children involved.

b) Substantial Factor Test  Used when there are multiple possible causes  D's conduct is a cause of the event if it was a substantial factor (material element) in bringing about the harm  D's negligence will be a substantial factor if the injury/harm to the P would . where premises is leased for admission to public (lessor must inspect and repair before possession is transferred to lessee)  Areas of premises that are under lessors exclusive control (common areas.  Conduct will not be cause IF injury would have occurred w/o conduct. But/For Test  Used when only ONE possible cause of P's injury. CAUSATION A. ii. X. etc)  when the lessor contracts to repair (assumption of duty)  when lessor negligently made repairs and lessee didn't know the repair was negligently made. Cause and effect of D's conduct and P's injury a) *If conduct did not happen. Causation in fact i. Two Tests for establishing causation if fact a) 1. courtyards. injury would not have happened. laundry rooms.

Could have caused P's injuries alone.Judge Cardozo  P must be in “zone of danger/apprehension” in order for D to owe a duty of care.  Not necessarily a matter of distance. PROXIMATE CAUSE i. bc the matter at hand is causation. P should prevail. Palsgraf v. b) Dissent – Judge Andrews  Thinks Cardozo is considering DOC when that is NOT the issue. A policy based method of cutting off liability when D’s conduct is only remotely connected to P’s harm. rather a matter of whether the injury was a foreseeable consequence of D's actions. * Proximate Cause Test iv.  As long as P can trace her injury back to D's negligent conduct. B.e. Long Island a) Majority . Whether the harm that occurs is a foreseeable result of D's breach of duty.  Since package was not labeled “fireworks” it was not foreseeable that pushing passenger would ever lead to an explosion which would then injure P. unless there is some sort of intervening event (i. . ii.not have occurred w/o the factor. act of God) iii.