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Torts Legallines Outline.

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Topic
I Negligence Principle
1. Elements of Negligence- P's burden to prove
a. Act or mission
b. Breach of Duty
c. Causal Relationship between D's conduct and the Harm to the P
i ii. Zone of danger: duty owed to those within an action's "zone of danger" (i.e.,
range of reasonably foreseeable consequences)
1 D owes a duty of care to P only if P's injury is a risk of D's action
d. Damages
e. Exercise of care, Duty owed by D to
2. Central Concept
a. Standard of Care
i The D is bound only to use that care that is commensurate with the hazard involved. The risk, reasonably
perceived. defines the duty owed
b. Reasonable Care is due to prevent forseeable risks
i Adams: D (trolley operator) not liable for injuries suffered by P (young boy) when an eight feet long wire
held by P touched a trolley wire running below a bridge  accident was not reasonably foreseeable
1 Ordinary care requires greater diligence when a potential injury is more severe (Adams); i.e.,
(compare to “L," infra.)
2 Failure to prevent an injury is not negligent if the injury was not reasonably foreseeable (Adams);
i.e., (compare to “P," infra.)
c. The Hand Formula
i United States v. Carrol Towing
ii If B<LP, then negligent if failure to take precautionary measures
1 B: Burden of precautionary measures
2 L: Cost of potential injury if liable
3 P: Probability of injury
d. Risk/Benefit Analysis
i Children are likely (P) to be seriously hurt (L) on railroad turntables unless railroads install a cheap (B) lock.
B<PL  liable (Krayenbuhl)
e. The Reasonable Person
i Best Judgment Immaterial
ii Objective standard: Would a "reasonable person of ordinary prudence" do the same?
iii Physical disability: a standard of care for a reasonable person with that physical disability
1 Sudden disability: If unanticipated then not negligent, otherwise yes
2 Blindness: Liable for driving a car, not for walking down the street
iv Mental Incapacity - Held to same capacity as RPP
1 Mental Attributes: not absolved of negligence because he is more stupid, hot-tempered, careless or of
poorer judgment than the RPP.
2 Imbecility: a mental state so low that will usually be held to render negligence impossible.
3 Intoxication: held to reasonable sober person standard.
v Children: A child is held to a standard of conduct for a child of like age, intelligence and experience.
1 Adult activity: held to the standard of care that a reasonable adult doing that activity would exercise.
Example: Driving a car: Yes, Skiing: No
f. Duty of Highest Care Rejected
v Children: A child is held to a standard of conduct for a child of like age, intelligence and experience.
1 Adult activity: held to the standard of care that a reasonable adult doing that activity would exercise.
Topic Example: Driving a car: Yes, Skiing: No
f. Duty of Highest Care Rejected
i Public transportation is at least as safe as private, no need for higher standard (Bethel v. New York City
Transit Authority)
3. Roles of Judge and Jury
a. In General
i Neglegence per se (Implied Negligence due to non compliance of statute)
1 P must show that...
(1) the D violated the statute,
(2) the statute is a safety statute,
(3) the act caused the kind of harm the statute was designed to prevent,
and (4) the P was within the zone of risk.
ii Rule of Law
1 Examples:
Goodman: if no reasonable jury could decide either way  judge determines standard of care
(Reckless speeding)
Pokaro: If a reasonable jury could find that D acted reasonably or unreasonably  jury is charged with
determining the standard of care;
2 Common Carriers: D must exercise that degree of care and diligence as it can reasonably
exercise consistent with the character and method of conveyance adopted and the practical
operation of D's business.
b. Proof of Custom
i In determining standard of care, custom is persuasive, not controlling
ii Jury could use custom as evidence of unreasonableness, but not proof
iii custom need not be universal (radios on some tugs suffice T.J. Hooper)
iv Custom is evidence of reasonable care and not conclusive
v Standard of care for medical malpractice
c. The Role of Statutes
i Violation of statute is conclusive – (Martin v. Herzog)
ii Exceptions to the general rule:
1 If safer to break law : If purpose of a statute is better served by violating the statute, then a violation of
the statute that leads to injury is not per se negligent. (Tedla)
2 Occurrence of unforseeable harm unique form harm legislature was attempting to prevent. (Platz)
3 Justified noncompliance: Example: Act of God prevents you from completion of duty
iii Licenses: Lack of license is not negligence per se. Licenses are not meant to set standards of care.
4. Proof of Negligence
a. P's Burden
i D was negligent
ii P suffered an injury
iii D's negligence proximately caused the injury
iv P did not contribute to the negligence
b. Types of Evidence
i Circumstantial Evidence: Unlike direct/real evidence, circumstantial evidence that does not conclusively
establish some fact; rather, implies that some fact obtains
1 Mere probability that a particular D (rather than someone else) breached a duty is insufficient to establish
negligence
2 Examples:
Negri: "visible and apparent," circumstantial evidence was sufficient to establish that the
dangerous condition had existed for a "sufficient length of time"
establish some fact; rather, implies that some fact obtains

Topic 2 Examples:
Negri: "visible and apparent," circumstantial evidence was sufficient to establish that the
dangerous condition had existed for a "sufficient length of time"
Rapid Transit: P is hit by a bus; D's bus company owns 51% of buses, bus owner B owns
49% of buses  D is not liable
3 Constructive Notice
Constructive notice if the following obtain:
Slip & Fall Cases:
"Defect [is] visible and apparent" (Gordon); and,
Defect existed "for a sufficient length of time prior to the accident to permit D's employees
to discover and remedy it" (Gordon)
Business Practice Rule:
No need to provide evidence of actual or constructive notice where "proprietor can
reasonably anticipate that hazardous conditions [will] regularly arise
Burden of proof: D has burden of proving that reasonable steps were taken to avoid
foreseeable risk of a self-service operation
Examples:
1970 Vermont Case: D liable for injuries suffered by P when P slipped on produce even
though P was unable to provide evidence of constructive notice – merchant used a self-
service method of selling produce and was thus obligated to anticipate these conditions.
c. Res Ipsa Loquitor
i "the thing speaks for itself"
1 "[P]resumption of negligence by D [arises] from the fact of an accident in which D was in exclusive
control" (Byrne);
2 Four elements for Res Ipsa Loquitor
No direct evidence of D's conduct.
"The accident is one that would not have occurred without negligence on the part of the
one in control" (McDougald)
Instrumentality/agency causing the accident is under the exclusive control of D
Byrne: Barrel of flour was under the exclusive control of D
P's voluntary action did not contribute to or cause the accident
Byrne – P did not contribute to the accident when a barrel of flour fell on him from above
ii Burden Shifting to D:
iii Defenses against RIL
1 Offer alternative explanations for the injury
2 Show that the sort of injury happens regularly without the negligence of anyone
3 Show D lacked control of the situation or that someone else had control
iv Departure from the rule of exclusive control
1 Ybarra and the focus on the burden shift
Ct. requires each D to rebut presumption of negligence. All are liable if none do (Ybarra)
Every D in whose custody P was placed for any period had a duty of ordinary care to see
that he
An employer is liable for his employees. A doctor in an operation is liable for all involved
in operation
5. Medical Malpractice
a. The Standard
i If D has higher degree of knowledge or skill or experience than the "reasonable person", D must use
that higher level.
1 Custom establishes the standard of care in medical malpractice actions
2 Exception to the standard: Where the practice is even unreasonable to a lay person
a. The Standard
i If D has higher degree of knowledge or skill or experience than the "reasonable person", D must use
that higher level.
Topic 1 Custom establishes the standard of care in medical malpractice actions
2 Exception to the standard: Where the practice is even unreasonable to a lay person
b. National Standard Adopted:
i Physicians are "under a duty to use the degree of care and skill that is expected of a reasonably competent
practitioner in the same class…[and] acting in the same or similar circumstances”
ii Exception: custom is not controlling, if a case is factually simple enough for jurors to rely on their
common experience in determining the standard of care
c. Res Ipsa Loquitor Supported by Expert Witnesses
i "Must have qualified knowledge of or familiarity with the procedure and field, acquired through experience,
observation, association, or education" (Sheeley)
ii Exceptions: May be factually simple to excuse use of expert – e.g., if surgeon leaves a sponge in patient
iii Experts and Res Ipsa:
1 Experts may be used in cases in which res ipsa applies – they may testify as to the "common
knowledge" (of the medical field, though) that is used in res ipsa cases to determine whether an injury
can occur only through negligence; "experts can educate jurors by training them to be twelve new
initiates into a different, higher level of common knowledge." (Connors)
d. Informed Consent in Invasive and Non Invasive Treatment
i Failure to protect patient's autonomy by failing to obtain patient's informed consent constitutes medical
malpractice
1 Invasive Procedures: W/out consent constitutes a battery, (Matthies)
2 Noninvasive procedures: W/out consent, patient is unable to decide the type/quality of life she will have
(Matthies)
3 Must disclose any "medically reasonable alternative," whether recommended by the physician or not
recommended by the physician (Matthies)
ii Requirements of informed consent:
1 Must Protect Patient's Autonomy in discussing possible alternatives
2 No Guarnatee: Professional will not normally be held to guarantee that a successful result will occur
3 Physician must describe material risks of possible procedures
II Duty Requirement: Physical Injuries
1. Introduction
a. We owe everyone we come into contact with a general "duty of care"--to behave with care that reasonable
person would.
b. Situations where courts hold that D owes P LESS than a general duty of care
i No duty, generally, to take affirmative action to help P
1 Person not generally liable in torts solely on grounds of failure to act
2 If D sees P in danger (like drowning pond), no duty to assist even if it could be done safely.
3 Exceptions:
Business owner must give warning and assistance regardless of source of danger/harm ot
those in proximity
Employers must give assistance to employees
Universities must give assistance to students
If danger/injury is due to D's own conduct, even if D acted without fault
Co-Adventurers
Once D voluntarily starts to assist, D must proceed with reasonable care (as this has
effect of dissuading others from helping)
Mere promise to help by D is not enough to make D liable for not following through
Special Relationship: If D has duty to control third person, D can be negligent for failure
to exercise that control
ii No duty to avoid causing unintended mental suffering to P
1 Parasitic" damages If D causes physical impact, then is liable for emotional/mental suffering which
flows from it.
Topic ii No duty to avoid causing unintended mental suffering to P
1 Parasitic" damages If D causes physical impact, then is liable for emotional/mental suffering which
flows from it.
No recovery for mental suffering without physical impact
Exceptions:
Negligence by telegraph companies in wording message and funeral homes for handling
corpses
"At-risk"-- If P, by virtue of exposure to certain substance, suffers increased likelihood of
disease, probably no liability
If D's conduct is intentional or willful, remember, can recover through IIED
2 Most court allow recovery when D's negligent act physically endangers P, no impact, but P has ED with
physical consequnces.
3 When suffering ED due to danger or harm for third persons
If P was in "zone of danger" nearly all courts allow recovery for ED due to third
party's distress
A number of states have abandoned zone requirement and allow the action if:
--P observes danger or injury to X
--X is a close relative to P
iii Recovery for pre-natal injuries varies:
1 If child is born alive eventually, nearly all courts allow recovery
2 Courts are split about whether suit can be brought on behalf of a fetus which is never born
alive--"person" in wrongful death statute?
3 Courts are split about whether pre-conception injuries allow for child eventually born alive
to recover
4 Wrongful life suits -- child may claim, if illegitimate or congenital disease, that it would
have been better off aborted. Almost no courts allow.
5 Parents may recover for medical expenses and perhaps ED from child's condition.
6 No duty to avoid causing pure economic loss to P in absence of more tangible harm
(property damage or physical injury)
When D tortiously causes injury/prop damage to X, but only pure economic loss to
P, P may not recover
Rationale for denying recovery: fear of "open-ended liability
Modern approach: Some courts relax this restriction. Possible recovery where:
injury was relatively foreseeable
relatively few Ps would be permitted to sue
D's conduct is relatively blameworthy
2. Obligations to Others
a. Affirmative Duties – Traditional Conception
i No Duty to Act
ii Non-negligent/Negligent Injury:
1 a) Traditional common law rule – no duty to help someone whom one has innocently/
non-tortiously injured
iii Non-Negligent Creation of Risk:
1 If you create a risk, you have a duty to alleviate that risk
iv Undertaking Rescue:
1 one cannot begin to rescue someone, stop efforts halfway through the rescue, and avoid
liability for resulting injuries even though no liability/duty would obtain if one had never
attempted the rescue
b. Obligations to protect a third party
i 2. Examples:
Topic b. Obligations to protect a third party
i 2. Examples:
1 a) R2T, § 319: "One who takes charge of a third person whom he knows or should know to be likely to
cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the
third person to prevent him from doing such harm”
2 Physicians owe a duty to protect or warn third-parties harmed by the physician's patient when...
Harm to 3rd Party is forseeable (Tarasoff)
3rd party victim is identifiable.
Exception: self-inflicted harm or property damage
3 Negligent Entrustment:
If you give something to another w/ which the other harms someone, you are liable if the
injuries were reasonably foreseeable (Vince)
4 Dram Shop Liability:
Taverns that furnish alcohol to person liable to those the person injures
while intoxicated
5 Social Host Liability
Social hosts who furnish alcohol to person liable to those the person injures
while intoxicated(Reynolds)
6 Privity
the parties entered into a contract do not owe a duty to third-party with no
contractual relationship between third-party and manufacturer (Belle)
Exception
"Subject-matter" does not have to be imminently dangerous (e.g., poison, explosives)
for duty to obtain outside the a contractual relationship; for duty to obtain, "subject-matter"
merely has to be of such a nature that it becomes dangerous if negligently made
Duty imposed upon a manufacturer extends beyond the contractual relationship between the
manufacturer and dealer if manufacturer knows that "the subject-matter of the contact
is intended for" the use of others
Also applies to
Property damage
Beyond users (pedestrians hit by out of control car)
Beyond manufacturers to repairers
Examples
Devlin: D liable when negligently built scaffold collapses, injuring purchasers P
workmen
Carlson: D master not liable when supplies P servant w/ tool that harms P because
D is not a tool expert, so reliance on tool's manufacturer is proper/inevitable
c. Intrafamilial Duties
i Broadbent: Abolishes parental immunity and instead imposes duty to act as
a "reasonable and prudent parent." The court held that "A parent is not
immune from liability for tortious conduct directed at his child solely by
reason of that relationship…a parent is not liable for an act or omission
that injured his child if the parent acted as a reasonable and prudent
parent in a similar situation”
d. Duty and Forseeability
i 1)Palsgraf and "Duty to Whom?”
1 a) Cardozo (majority) & Private Law:
i. Duty is owed to individuals, not the world at large
ii. Zone of danger: duty owed to those within an action's "zone of
danger" (i.e., range of reasonably foreseeable consequences)
d. Duty and Forseeability
i 1)Palsgraf and "Duty to Whom?”
1 a) Cardozo (majority) & Private Law:
Topic i. Duty is owed to individuals, not the world at large
ii. Zone of danger: duty owed to those within an action's "zone of
danger" (i.e., range of reasonably foreseeable consequences)
D owes a duty of care to P only if P's injury is a risk of D's action
iii. Application: Negligence to the owner of the package containing
fireworks (i.e., damage to his property) is not a wrong relative to P
because it was not reasonably foreseeable that this action would injure
her
D owed no duty to P when negligently damaging the property of
another
D not liable for P's injuries when only breaching duty to fireworks
owner
ii 2) Role of Policy
1 a) Courts often weigh policy considerations, social impact of a decision (in addition
to reasonable foreseeability), when deciding whether to impose a duty – Andrews's
approach, Prosser's approach to tort law (Don does not like this approach…)
2 b) Considerations
i. Deterrence: prevent Ds from doing bad things by assigning
penalties (forward looking)
ii. Compensation: allow (innocent) injured Ps to recover when
harmed
iii. Justice: secondary consideration at best
3 c) Objections
i. Anti-democratic
ii. Pointalist approach  inconsistent/factured policy
iii. Judges not very good at setting social policy
iv. If Ds are insolvent, they cannot be deterred or compensate
4 d) Examples:
ii. Strauss: D, utility, not liable to P for injuries suffered by P during
a blackout because P was in a "common-area" of his apartment
building; court's rationale – an extension of duty outside the
contractual relationship would impose "crushing liability" on D (
more injuries = less liability)
3. Policy Reasons for Invoking No Duty
a. Contractual Relationship
b. Social Host Liability Not Extended to Injured 3rd Parties
c. Negligence Entrustment
4. Landowners and Occupiers
a. Trespassers: Duty not to wantonly or willingly injure trespasser
b. Licensees: Duty to protect against known dangers
c. Invitees: Duty to protect against known dangers and those revealed by reasonable inspection
d. Modern Reform/Rejection of Traditional Categories
i Heins: Abandons invitee/licensee distinction, holding that landowner owes
duty of reasonable care (i.e., duty to protect from foreseeable harm) to all
nontrespassers
e. Against Criminal activity of property
i c) Totality of Circumstances: If criminal activity is foreseeable upon an
examination of all relevant circumstances (e.g., prior similar incidents,
crime rates in the surrounding area), then landowner has duty to protect
(most common approach)
e. Against Criminal activity of property
i c) Totality of Circumstances: If criminal activity is foreseeable upon an
Topic examination of all relevant circumstances (e.g., prior similar incidents,
crime rates in the surrounding area), then landowner has duty to protect
(most common approach)
ii d) Balancing: Foreseeability and gravity of harm weighed against burden of
precautionary measures – similar to Hand Formula
III The Duty Requirement: Non-Physical Harm
1. Emotion Harm
a. Mental Disturbance
i Bodily injury resulting form fear
ii Recovery denied for fear of disease alone
iii Severe emotional distress
iv Test for bystander recovery
v Direct and Indirect injuries
2. Wrongful birth and wrongful life
a. Introduction
b. Prenatal Injuries
i Stillborn children
ii Wrongful death actions
c. Birth defects
d. Negligent Performance of sterilization Procedure
IV Causation
1. Cause in Fact
a. Sine Qua Non (But For) Rule
b. Proof of Causation
i P's Burden
ii Increased risk of harm
iii Lost chance
iv Alternative liability
1 The landmark case
2 Applying the Rule
v Market share Analysis
2. Proximate Cause
a. Introduction
i Direct results of the D's act
1 Forseeability of Harm
2 The opposing view
b. Unexpected Harm
i Preexisting condition
ii Different injury forseeable
iii Actual results must be forseeable
iv Balancing Test
c. Superseding Causes
i Indirect results of D's act
1 Intervening criminal act
d. Unexpected Victim
i Duty owed the P
V Defenses
1. The P's Fault
Topic
V Defenses
1. The P's Fault
a. Contributory Negligence
i Common law Rule
ii Minority rule
iii Burden of proof
iv Distinguish avoidable consequences
v Limitation to the particular risk
vi Injuries intentionally or recklessly caused
vii Last clear chance
viii Imputed contributory negligence
b. Comparative Negligence
i Introduction
ii "Pure" vs. "Partial" comparative negligence
1 "Pure"
2 "Partial"
iii Other issues involving multiple Ds
1 Introduction
2 Satisfaction and release
3 Contribution
4 Indemnity
2. Assumption of Risk
a. Not negligence
b. Unreasonable Assumption
c. Knowledge Required
d. Must be Voluntary
e. Rejection Theory
f. Exculpatory Agreement Void
g. Voluntary Assumption of Risks of Amusements
h. Comparative Negligence and Assumption of Risk
i. The "Firefighter's Rule"
3. Preemption
a. Common Law Tort Action Preemption
VI Strict Liability
1. Traditional Approach
a. Unnatural Conditions on land
b. Principal case
c. House of Lords appeal
d. The Rylands Rule
2. Animals
a. Trespassing
b. Wild Animals
c. Known dangerous domestic animals
d. "Dog bite" Statutes
3. Early Adoption of Strict Liability
4. Restatement Approaches
a. First Restatement
b. Second Restatement
4. Restatement Approaches
Topic a. First Restatement
b. Second Restatement
c. Not abnormally Dangerous
5. Defenses
a. Contributory Negligence
b. Assumption of Risk
c. Comparative negligence
d. Injury within the risk created
i Different Risk
ii Unforeseeable intervening cause
6. Liability for Detective Products
a. Introduction
i Unsafe Products
ii Common Law
1 Tort Actions
2 Contract actions
3 Privity Requirement
4 The foreseeable P
5 Strict Liability
6 Warranty
iii Intentional Acts as a Basis of Liability
iv Negligence as a Basis of Liability
1 Foreseeable risk of harm
Landmark Case
2 Extensions of the MacPherson Rule
Restatement rule
Where Restatement does not apply
3 Defenses
v Emergence of Liability Without Fault
1 Prediction of strict liability
2 Strict liability
vi Restatement View
b. Manufacturing Defects
c. Design Defects
i Conditions Intended
ii Tests Applied
1 Unreasonably dangerous
2 Consumer expectations
3 Consumer expectations test rejected
4 The crashworthiness doctrine
iii Safety Instructions and Warnings
1 Adequate Warnings