INTRODUCTION

I. What is a tort? a. An injury inflicted by one party onto another other than a breach of contract where the law allows redress through the civil courts. Where an injury has occurred, who should bear the costs of the injury and why? Not a fixed set of rules. Not necessarily criminal Should we hold D liable and award P damages? You must consider: a. Language of the statute b. Common law c. Court may consider the impact on society i. Holmes: Cumbersome and expensive machinery of the law - Unless for good, don t change laws because expensive and time consuming; don t invoke government involvement unless there is a clear benefit. General info a. Issues of facts are decided by preponderance of evidence with the burden on P b. Jury decides facts. c. Judge decides issues of law Internalizing costs (unintentional injuries) a. Hammontree v. Jenner: D. epileptic had a seizure and consequently drove into a bicycle shop owned by the P., causing physical damage to the shop and bodily harm to the P. Judge rejected P s argument that the D should be held strictly liable, and instead instructed the jury on negligence. The jury found for the D. i. When Jenner chooses to drive, he weighs the costs and benefits. However, not all costs are born by Jenner. According to internalizing the costs, Jenner should have to pay all the costs. ii. Torts find that drivers who lose control of their vehicles should not be held strictly liable, but negligent.

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VICARIOUS LIABILITY
I. II. Definition- Liability imposed upon someone (such as an employer) for the actions of some other party (such as an employee) due to their relationship Respondeat superior doctrine- the doctrine holding an employer or principle liable for the employee s or agent s wrongful acts committed within the scope of employment or agency. Employer does not have to be negligent in any way (although if employer was negligent, he can be held directly liable) a. Christensen v. Swenson: Swenson, a security guard, getting lunch on an allowed unscheduled break during a continuous 8 hr shift. Collides with motorcycle on way back to post P sues Swenson and her ER. Appellate ct overturned summary judgment for ER b/c reasonable minds could differ if Swenson was in scope of employment. i. Used Birkner Test: (1) Was she doing her general job duties she was hired to perform? (2) Did event occur within hourss and spatial boundaries of job? (3) Was she acting at least partly motivated by her employer s interests? ii. Modern tendency to hold incidental acts in the course of work (such as lunch or smoking breaks) within scope of employment

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iii. Accidents on the commute are not usually held to vicarious liability, but accidents on a trip for the business are. iv. To be held vicariously liable, the party that did something wrong has got to have done something negligent which she is liable for b. Apparent Authority (ostensible agency) Party by its conduct must make another reasonably believe that someone was acting an employer or agent of the D., and then the P. relied on such a reasonable belief D. can be held liable if Ct. finds case to satisfy such elements; usually a jury question of fact. i. Roessler v. Novak: - Roessler brings a suit against Dr. Lichtenstein and Sarasota Memorial, the hospital where the Dr. works; after Roessler experiences terrible health complications after a surgery rendered by Sarasota Memorial and the Dr. s misinterpretation of Roessler s X-rays Ct. overturned summary judgment of trial court, noting that there was an issue of fact as to whether there was apparent authority 1. Elements of apparent authority: (1) the principal s conduct (2) provided the plaintiff with the reasonable belief that the alleged agent was indeed an agent or employee of principal, and (3) that the plaintiff had justifiable reliance on such a belief a. Doing nothing can create a representation. Like not kicking out someone there if they saw them b. The representation must come from principal ii. Baptist Memorial Hospital System v. Sampson: Hospital posted signs warning patients and made them sign a form about the independent contracted physicians. P said he didn t see these signs. Court found for hospital in summary judgment that nothing the D did could have created reasonable belief that the doctors were hospital agents 1. Factors to use when determining whether the actor is an employee(§ 220 Second Restatement of Agency): (1) Extent of control which the master is authorized to exercise over the details of the work (2)Whether the actor is engaged in a distinct occupation or business (3) Whether the type of work is customarily performed under the employer s supervision or by a specialist without supervision and the extent of skill required (4) who supplies the tools, other equipment and place of work (5) length of time the person is employed (6) whether the person is paid on a time basis or by the job (7) whether the employer is in a business and whether the work is part of the employer s regular business (8) the parties belief as to the nature of the relation iii. Estoppel Apparent Authority fits into this broader legal authority Estoppel occurs when D s conduct causes P to reasonably believe something, such believe creates P s reasonable and justifiable reliance on D, resulting in P s detriment iv. Generally, employers are not liable for torts of independent contractors.

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1. Independent contractor- has own tools, expertise etc. Employees get a check, place of business, taxes withheld etc. 2. Exception: Employer of independent contractor is vicariously liable for work that involves a peculiar risk if the contractor fails to take appropriate precautions in light of that risks (nondelegable duty) a. Becker v. Poling Transportation Corp:fuel fire caused by independent contractor who had wrong equipment, but employer liable because of this peculiar risk of petroleum Rationale of Respondeat Superior a. Economic justifications: i. Employer can select and control employees, and thereby prevent injuries due to negligence- employer s can establish incentives for employee s to exercise due care, discipline those negligent and consider alternatives to employee efforts ii. Where risk are created for the employer s benefit, it seems fair to ascribe the negligent conduct to he party for whose benefit it was undertaken b. Policy goals: i. Prevent future injuries ii. Assure compensation to victim- Employers have a deep pocket iii. Spread losses by enterprise equitably- Employers can spread costs of accidents by purchasing liability insurance and raising price of the products to reflect inherent accident costs of the enterprise

NEGLIGENCE PRINCIPLE
I. Definition- The failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation; any conduct that falls below the legal standard established to protect others against unreasonable risk or harm, except for conduct that is intentionally, wantonly, or willfully disregardful of others rights. a. Elements of Negligence: i. Duty- usually exists, but sometimes for policy reasons court doesn t recognize it ii. [Standard of Care?] iii. Breach- did D adhere to standard of care? Usually that of reasonable person; can be heightened duty (common carriers) or specified duty (land owners) iv. Causation 1. Cause-in-fact 2. Proximate cause v. Damages vi. [Defenses]

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REASONABLE PERSON STANDARD OF CARE
a. Adams v. Bullock:Boy walking across bridge swinging a wire. Wire hits trolley lines below injuring boy. Was D negligent in using the overhead trolley system? No, lawful, had precautions reasonable person would take, would be unreasonable for D to put lines underground and accident was not foreseeable. This kind of accident never happened before. Whether the cost. of an injury can be shifted depends on if person acted 3

negligently. Case considers reasonableness of standard of care. Ordinary caution does not involve the forethought of extraordinary peril i. Braun v. Buffalo Gen. El. Co: the D strung wires 25 feet above a vacant lot that were wrapped with insulation expected to last up to 3 years. They were never inspected. A carpenter came into contact with the wires and was electrocuted. The lower court dismissed the complaint, but the court of appeals reversed and remanded the case because they decided it was question for the jury. The vacant lot was in the middle of a developed and industrious city so it could have been foreseeable that a building would have been added in the vacant lot. ii. Greene v. Sibley, Lindsay & Curr Co.: a lady tripped over a cash register mechanic who was bending over behind her, but which she had previously seen standing up in the same spot. The mechanic was doing a common and simple act which only lasted minutes and did not involve a continuing obstruction. The court said that there was no negligence on the mechanic s part b. US v. Carroll Towing Co.: (Hand formula - B PL)- Barge broke lose, sank, lost cargo. Owner of barge sued tugboat company for negligence. D sought to reduce damages by saying T was contributorily negligent in not having bargee present. P duty must be determined by comparing the burden of adequate precautions to the probability of the accident and the extent of the possible injury (loss). If the B is less, it is fair to require P to have bargee present. Ct holds that ct/jury should weigh this as well as D in making decisions. Negligence is determined by standard of care and foreseeability. P did not take proper precautions (having bargee on board), so judgment for D. i. Chicago, Burlington & Quincy RR Co v. Krayenbuhl:Child got leg cut off when playing on a railroad s turntable that was unlocked. The turntable was necessary to benefit society. Its dangerousness is insignificant when weighed with benefits to society. Demands reasonable, unrestricted and effective use up to the point where societies benefits from it no longer outweigh the danger anticipated from it. At this point public good demands restrictions. It demands a lock ii. Bolton v Stone: Even though ball very seldomly went over the fence, after the first ball did there should have been precautions take because people knew it could possibly happen again. c. Bethel v. NYC Transit: T was injured when wheelchair accessible seat collapsed under him. P said D had constructive notice of defect. Should duty of highest care be imposed on common carriers? No, should be replaced with basic negligence standard of care under the circumstances. i. Constructive notice- a person knew or should have known of defect ii. Most jurisdictions including AL have heightened standard of care for common carriers because passengers are at total mercy of carrier, rely on them for safety for its out of passengers control, and carriers are better equipped to handle such defects. 1. Wood v. Groh:P was accidently shot by D s 15-year-old son who used a screwdriver to break into his father s cabinet where the unloaded gun and ammunition was stored. At first trial court gave him ordinary negligence charge and jury found for D, but P appealed that judge should have charged D owed highest degree of care in safekeeping his gun. d. Should everyone be held to reasonable standard of care? i. Physical disabilities- If it is an identifiable disability the court will include that in the circumstances (Ex: elderly man with a shopping cart) 4

ii. Mental disabilities- Traditional rule is that mental conditions are not taken into account. Justification: 1. Hard to draw lines between what is and isn t a mental disability 2. Potentially easier to fake a mental condition 3. If somebody has to bear the $, it is better for the person who caused harm to pay 4. Encourage caretakers to take responsibility for disabled person s actions 5. Vaughan v. Menlove:D piled hay in a way that was a fire hazard to his neighbors. P sued when fire occurred and won. D argued that because he acted to the best of his judgment he was not liable. Court held that no matter his mental abilities he was held to the standard of the reasonable person 6. Roberts v. Ramsbottom:Elderly D suffered stroke minutes before driving a car. He had no previous warning or symptoms and though his consciousness was impaired he though he was in control of his faculties enough to drive. The court ruled that the D was responsible for failing to appreciate the proper significance of his mishaps-Drivers are usually only not liable when their actions at the time were wholly beyond their control completely unconscious iii. Superior abilities- may be taken into account if they can be proved, result in heightened standard iv. Children- Not always held to a reasonable person standard; Usually more individualized, what a reasonable person of that child s age, intelligence, and experience would act 1. Very young children are usually held as categorically not liable for actions a. Ellis v. D Angelo- 4 year old charged with negligently pushing babysitter onto floor. Court held that D was to young to have developed mental capacity for foreseeing the consequences of their inadvertent conduct 2. Parents can be held liable for negligent supervision esp. if child has a history of misbehavior or if parent gave child something he should not have. Common law does not usually hold parents vicariously liable for children s actions. Some states have statutes that allow a P to sue parents if act is intentional and particularly malicious up to a nominal money amount 3. Sometimes a child is held to an adult standard of care if the activity is an adult activity (requires skill and inherently dangerous) a. Driving i. Stevens v. Veenstra- 14 year student driver in education class held to adult standard for conduct during his first driving class with instructor. Court ruled that some activities are so dangerous that the risk must be borne by the beginner rather than the innocent victims and lack of competence is not excuse b. Chainsaw operation

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Akins v. but could not see down the line b/c a building blocked his view. of Appeals finds this was not appropriate b/c there were enough facts for jury. Bashi v. Claims injury was foreseeable and airline should have prevented it. The accident was 6 .usually not factored in.decides issue of law ii. The D is liable for a P unforeseeable and uncommon reactions to the D negligent or intentional act III.decides issue of facts b. She claimed to have little recall of the events.:P was hit in head by briefcase that fell out of overhead bin. THE ROLE OF JUDGE AND JURY a. Dismissed on summary judgment.4. Lower courts cited Goodman for ruling for D. Baltimore & Ohio RR Co. b/c the facts of the case were so clear and unquestionable c.not every reasonable care case needs to go to jury d. Does not claim personnel were involved in stowing of bag or its retrieval. v. Should D be held liable to especially fragile? 1.P was hit by foul ball while watching high school baseball game. which become law by precedent. and P had a duty of care to get out of his car and view his surroundings Court ruled on this question of fact (and not the jury).: P sued D for negligence after being struck by D s train while driving across crossing. Sudden onset of mental problem vast majority do not allow this to be taken into account 1. Common carriers are subject to higher standard of care. as it can be flexible to apply to the particular circumstances of each case. United Airlines Inc. View was blocked by boxcars on switch track. Jury. Goodman: P sued D after P s husband died b/c of being struck by one of D s trains. Eggshell plaintiff rule: Generally. you will be held to a higher standard where as an ignorant person is not held to a lower standard v. Judge.Noted that courts should refrain from establishing standards of conduct. The court of appeal reversed saying that the driver suddenly stricken by an physical illness is not chargeable with negligence vii. This standard is a asymmetrical in that if you are an expert. Jury ruled for P. so no question so of negligence remained for jury s consideration. Generally i. Andrews v. D gave summary judgment for D on grounds that she had sudden unanticipated onset of mental illness. Wodarz. Glens Falls City School district. Pokora v. you take your victim as you find him. but Supreme Court reversed in favor of the D and held P was contributorily negligent. Ct. standard of reasonable care should be applied. Wabash Railway Co. drunkenness viewed as voluntary state (not allowed as an excuse vi. Listened but didn t hear train. In cases of negligence. Court decided that there was no bases for jury to find D negligent because the school fulfilled duty of reasonable care as a matter of law. but Supreme Court overruled Goodman and created a new standard of care for such cases. reasoning that the question of reasonableness should be decided by a jury. P was driving across D s tracks. Intoxication.D rear ended car and left scene without stopping and then collided with P. The Goodman get out of your car and look rule standard of conduct set by the court doesn t match common behavior and is an uncommon precaution likely to be futile and even dangerous i.

Since then became industry standard to use shatter-free glass on tubs. Ct. Beware of industry standards because an industry may purposely establish customary standards simply to protect itself 1. Customary practice does not have to be universal. Trial Ct: awarded P damages. D (landlord) admits it is standard but says only when landlord has reason to replace glass. Appellate Ct: reversed holding no common law duty to replace glass unless prior notice existed from previous accident or P. If only experts permitted to testify represent the same side of a civil case. Door was made of ordinary glass and was installed in 1953. Reflect judgment of many ii. If everybody is doing it.P guest fell during power outage at D s motel and sued saying that D was negligent in knowing that there were past power outages. the industry can set its own standards and allowing this is improper to let the custom of and industry define what is reasonable of that trade but testimony would be helpful because beyond knowledge of average juror. and that inexpensive battery powered lights available at the time of 7 . and emergency lights in the hallways. Court said if P could show that purpose of smooth rope was to avoid such injuries the evidence of custom was admissible d. Hard to draw line between expert testimony letting industry define standards iii. Judge excluded testimony from mechanical engineer who was prepared to testify for P about conditions at baggage claim. LaVallee v. it may be important in deciding whether the actor behaved reasonably iii. Customs are evidence. Customs are a sign of the expectations society has for one s actions in a given situation b. it allows one to know the safe way iv. but not conclusive i. Trimarco v. Carriers must keep pace with science. if D did follow customary practice c. Stagl v. D did not show baggage netting would be too expensive or interfere w/ convenience of passenger (Hand s formula).. Sending a case to jury may sacrifice uniformity IV. Except in medical malpractice case ii. Direct bearing on feasibility (Can they? How much will it cost?) iii. Custom helps us decide when a breach has occurred i. of Appeals of NY: held instruction to jury to consider custom in light of what others in industry do and to consider reasonableness under circumstances was correct. Klein: P was severely cut when he fell through glass door on tub. i. had flashlights at front desk. Can be defense to D. art and modern improvement this is why jury should decide the case because they have the everyday experience and knowledge that reflect these changing standards ii. Customs tell us: i. Even if prevailing custom doesn t set standard of care. but fairly well defined so it can be proven that the actor had knowledge of it or negligent ignorance ii. Levine v. Delta Airlines Inc: P hurt at baggage carrousel. THE ROLE OF CUSTOM a.foreseeable because D admitted risk through oral warning to passengers. Vermont Motor Inns Inc.:P cut hand on rough rope in dumbwaiter and sued D saying he should have followed custom using smooth rope. Russell Blaine Co.

Statute is some evidence in case. T s husband was charged w/ negligence for traveling w/out lights.Negligence est. Impossible to obey the statute 8 . In reviewing instruction. of Appeals of NY held that by violating statute. one must adjust and doing so does not make him negligent.T s husband had committed a negligent wrong and this duty could not be relaxed 1. Trial Ct: Judge instructed jury that it could consider husband s failure to use lights in determining contributory negligence but that it was not conclusive evidence. Ellman: Ps were junk collectors and were walking w/flow of traffic on the edge of the lane. c. D contended that Ps were contributorily negligent because they violated law requiring pedestrians to walk against flow of traffic. and no other motels who provided those kinds of emergency lights V.the accident should have been installed in the rooms Court said insufficient as a matter of law to shower D failed to exercise ordinary care. so that a breach of duty is not a jury question. 1. i. violation establishes negligence unless an excuse is offered.failure to obey a statute can be excused. Negligence per se. Husband died. Prima facie case presumption violator was negligent. Statutes are society s way of codifying customs. If the circumstances make it dangerous to obey. THE ROLE OF STATUTES a. Where the law can be treated differently (can differ by jurisdiction) a. Instances were failure to comply to statute is permissible: a. c. where purpose of statute is to prevent the accident that occurred. b. They chose not to walk against the flow of the traffic b/c traffic was heavy in that direction. but not a determining factor i. Jury can find D not negligent. the intent of the legislature must be relevant to the case at hand. gives the ability to rebut the act (are allowed to argue that violating the statute was reasonable under the circumstances). Before you can say something is negligence per se. Martin v. if it is factually impossible to obey statute or if there is a reasonable excuse for violating the statute (avoiding more harm by disobeying law than obeying law would prevent). Directed verdict upheld on appeal because even though power outages occurred before no one was hurt. is generally found to be negligence per se. Herzog: T and husband were in buggy at night & were struck by a car. i. Court held that the statute defined a general rule of conduct for usual circumstances and its legislative intent was to protect human life. (was charged w/ negligence for not keeping car right of center. Herzog. Violation of a statute that is unexcused. Under prima facie and per se approaches. as a matter of law. It shifts the burden of proof to the other party. Judge refused request. An excused violation of the law. Ct. Negligence per se i. Negligence per se results when statue protects under all circumstances. Tedla v. 2 Ps were hit by D car. even if no excuse was offered b.(had asked for a ruling that the absence of light on T buggy had est. Some cases find that it is a prima facie case (P can show facts that are enough for them to win before D provides argument). Some jurisdictions allow Judge to give jury instructions as inMartin v. a prima facie case of contributory neg.

then they are absolved of the effects they warned against 2. Failure of obeying the statute is safer than obeying it c. If that is the purpose. Interplay between custom and statutory violation 1. v. but the jury could have reasonably foreseen that farm laborers with limited education could not read the warning and there were no symbols like skull and cross bones to communicate the message. She said her behavior was reasonable because everyone did it. Licensing statutes have general not been used to set the standards of care because the purpose of such a statute is to protect the public from actions performed by unskilled persons. Where the statute is meant to establish a standard of care and be preemptive. Statutory preemption 1.in effect proving negligence. tort law cannot go forward when the standard of care was met iii. Hubbard-Hall Chemical Co. iv. Where a state law contradicts a federal law. of Agriculture found that the warnings on the sacks conformed to congressional requirements.If a state tort claim is inconsistent w/ the objectives and goals of the federal regulations then implied preemption applies.P had been hit by police van and was held contributorily negligent for violating a traffic regulation by crossing the street outside of a marked crosswalk.b. The court said that there is no basis to excuse violations of the law were they are common practice a. Ex: In accident involving and unlicensed driver the lack of license is irrelevant to the tort claim whether the unlicensed driver is the P or D 9 . P must prove the D lacked the required skill. Both cars faced an emergency when the intruding car came across into their lane d. the federal law rules supreme. Common law negligence is a state law issue. Statute compliance as a defense i. DeNardo: P claimed D ws negligent for violating the assured clear distance ahead statute. Levey v. Silverman: two migrant farm workers were killed by contact with insecticide manufactured by the D. Compliance with statute can mean satisfaction of standard due care requirement. Court found no reason to believe that Congress intended conformity with its requirements to mean that the D met the possibly higher standard of due care imposed by the common law in the actions of tort negligence. ii. The Dept. District of Columbia. Ex: If a tobacco company follows the statute. Robinson v. Principle of implied preemption. Emergency i. The court held that reliance on the statute was misguided.

(Burden on D for negligence per se cases. Show injury caused by violation ii. Moody v. P has burden of proving that D conduct fell below standard of reasonable care. a. PROOF OF NEGLIGENCE a. pictures. That injury was exact type intended to be protected by the statute 1.eyewitnesses. Testimony offered that no one had heard the jars recently fall. or for counter claims of P s negligence) i. Circumstantial evidence. 1.find evidence that a string of events happened but have no eyewitnesses. as circumstantial evidence (no eyewitness) provided that jury could infer D had constructive notice of the danger.e. Unexcused statutory violation then negligence per say VI. P claimed the paper came from a nearby concession stand contracted to be there by D. Statutory violation relevant to negligence 1. Court overturned summary judgment. causing her to slip and fall.: P slips on the D s floor and sues for negligence. Inc. Haymarket Associates: P slipped on wet floor and sued D for janitor s negligence. American Museum of Natural History: P sued D museum after slipping on a piece of white wax paper along a stair case of the D. Constructive notice. Breach of statute is prima facie evidence c.was it there long enough for ( to know about problem and clean it up. etc. and it was not said that the paper was dirty or the steps were littered with paper P did not prove a reasonable D should have cleaned up the paper. arguing P did not prove constructive notice. Faricelli v. To prove constructive notice a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit D employees to discover and remedy it b. Three options: a. Stop and Shop. SC reversed judgment because judged erred in admitting evidence because it was irrelevant in narrow issue of 10 . Jury can disregard this even if no evidence in rebuttal b. Violation of statute is unexcused (inability to apply with statute) iv. as the paper could have just fallen to the steps. Often more readily available than direct evidence. Sometimes courts take into account whether the statute was not intended to protect the class of persons to which the P belongs iii. and the dirtiness of the baby food led to the reasonable belief that it had been left on the floor for a good deal of time. Court said this did not establish constructive notice c. Trial judge admitted evidence showing that D had no accidents 10 years prior to trial and the jury found no negligence. Court ruled for the D. 2. ii. Direct evidence. Jurisdictional approaches to statutory violations i. and incur an injury. iii. TSS Seedman s Inc:P slipped on banana peel and sued D on constructive notice theory arguing that the peel was blackened. Generally P burden to get in all elements of why D was negligent. as P alleged she slipped because broken bottles of baby food were on the floor. Gordon v. Negri v.

When courts determine whether to impose a duty. Res ipsa Loquitur 1. Byrne v. But if the D does not have the evidence or know what happened. Randall v. McDougald v. but trial court instructed jury on res ipsa loquitur. Some say more likely than not. Introduction to duty a. Ex: Selfservice method of sale iv. burden thus shifted to D to disprove P incurred injury from D s product at D s shop (exclusive control) 3. No contribution to P s injury by the P or any third party d. Some cases it s a good foundation for summary judgment 2. This is the type of accident that would not occur unless there was negligence i. Modernly. D admitted checking the chain that day but not every link. others say it has to be highest probability c. General Principles a. Some courts treat a res ipsa case as having enough evidence to go to the jury and they can infer negligence of they wish. Shifts burden to ( to prove accident was not caused by his negligence or that it was caused by someone else. and jury found for P. Ex: tack in can of corn b.whether the janitor acted in a particular day in question that was negligent d. this can have the effect of strict liability. Boadle: P was struck by a barrel of flour while walking by D s flour warehouse.) f. breach is question of fact for jury b.one justification for this is that it shifts the burden to the side that has the evidence. rule has been softened. D has exclusive control of thing that caused accident i. g. they consider: 11 . P claimed he was struck by barrel being dropped from D s upstairs window. No eyewitness saw exactly what occurred. e. K-Mart Corp: business practice rule that does not require constructive notice for business practices that create a reasonably foreseeable harm to invitees because the merchant was obligated to anticipate the dangerous conditions. P was not required to prove other causes besides D s negligence caused injury to apply res ipsa loquitur DUTY: PHYSICAL INJURIES I. Court found circumstances to create prima facie case for negligence against D. and its original fastener had been replaced by a mere nut-and-bolt Chain could not be recovered. Duty is question of law for judge. Other courts say that P has proven negligence unless D can prove otherwise. There must be a duty for there to be negligence i. The P must still prove all other elements that D was liable (proximate cause etc. Perry: P sued D truck driver after spare tire from D s 18wheeler came loose from its fastening chain and struck P s car.

Two GENERAL rule: i. when an actor voluntarily acts in a way designed to reduce the risk to which others may be exposed. Herman: P suffered severe injury after diving off D s boat into a murky lake. Misfeasance. a passive failure to take action ii. County of Yuba: Sherriff s office promised to warn P if they released a man that she was afraid were seriously harm her. if your aid put person in a worse condition such as by preventing others from lending aid 1. and duty analysis to impose policy limits on liability for foreseeable harm II. Court must always use proximate cause analysis to bar liability for unforeseeable harm. Three ways D could act: i. D failed to notify P after his wife called several times.) d. This does not satisfy Hand formula because the cost-benefit analysis under economic interpretation of negligence does not permit a person to act on the assumption that he may as of right attach special weight to the importance of his own welfare. Dobbs Houses Inc:P wife was pregnant and boss promised to let him know if she called the office and needed P to drive her to the hospital. D starts to render aid. The court held that liability should exist if the P could establish that the decedent relied on the promise and would have acted differently without it 3.intentionally did something wrong c. an affirmative act which harms or endangers the P. Nonfeasance. who choose to engage in activities that create a grave risk of injury to others. P was a social guest on boat. and that the injury follows as a consequence of his inaction. Potential flood of litigation c. Those who do act.don t do anything. Beyond the rescue context. The court held that manager was obligated to exercise due are in performing his promise and the lower court s dismissal was reversed iii.esp. unknown by D. Mixon v. Malfeasance. Exceptions to the No Duty rule: i.didn t do it well. Courts generally refuse to impose liability for doing nothing ii. Harper v. You caused accident but were not negligent ( Just about every jurisdiction has established a policy or statute that states that if you are involved in an accident that causes a person harm. and upon his relief the man killed the P. Special relationship exists between ( and victim ii. Good Samaritan professionals that volunteer to render aid cant be held liable for mistakes that result from volunteering e. i. D anchored boat and D knew the lake. P dove 12 . when he might do so with little or no inconvenience to himself. a duty of reasonable care exists if the actor increases the risk of harm or if others rely on the actor s undertaking 2. do have a duty to exercise care to avoid injuring others b. Economic hardship to D 2. Some argue that there should be liability for one who fails to interfere to save another from impending death or grave harm.1. Morgan v. DUTY TO POTENTIAL VICTIMS a. you have a duty to help that person regardless if you are at fault. They failed to do so. did not possess the evil intent iii. f.

a special relationship would be found for innkeepers. Court ruled for D. White: group of minors where some were drinking and taking drugs. if one party is depending on another and the person accepts that role. After the beating. finding no duty for D towards P because: (1) there was no special relationship between the parties (2) P still had the ability to protect himself. The court affirmed granting summary judgment for D. the court will find a duty. thus ruling that a psychiatrist has a duty to alert potential victims about dangers he knows or should know about due to his professional expertise. the D is said to have been negligent himself i. D passed out but P drove around for two more hours. Suit was brought against those who weren t drinking for their failure to restrain driver before his negligence injured others in the group. and D suffered a terrible beating by third persons (protective boyfriends). land owners who open their land to the general public. the D must have a special relationship with the person whom actually harms the P (like a doctor and his patient). P prevented others from being able to aid D by placing D into the car did not do so). Court found P had a duty to D. D died three days later. P voluntarily came to D s aid (giving rise to a duty to then exercise reasonable care in rendering aid. Court recognize that D cannot start to aid a P and then fail to fulfill or complete such aid Also. as they had a special relationship (companions on a social venture. thus no special relationship. Ronald M v. as a matter of public policy. D also not a common carrier for profit i. P left D at D s home after failing to wake D. Keaton: P and D were two friends out one night. where such others are denied the ability to protect themselves (not satisfied in this case. a P s reliance on D s promise to administer aid can create a duty for D i. identifiable victim b. For a special relationship to be found between D and P (the third party victim). Policy bases for invoking no duty i. common carriers. Because of the size of the power company. Usually. Farwell v. III. and medical testimony asserted D could have been saved with timely medical care. a mere special knowledge of a dangerous condition will not by itself establish a duty g. Court found that. thus the pre-existing duty rule). General rule for such cases. Bell Realty: P fell and injured himself on basement steps of an apartment building during a power outage. and no duty). Strauss v. ii. This patient ended up killing the P s daughter. Court found for the P. DUTY TO CONTROL OTHERS a. of the potential harm posed to the victims by one of his patients. recovery for injuries in a building s common areas should be limited to those who are in a contractual relationship with the power company. Tarasoff v. Court notes that confidentiality agreement should be broken if a patient poses a substantial threat to seriously harm a known. P loaded D into the car and placed ice bag on D s head. Also. it seemed to be 13 .in after D answered affirmatively P s question of whether D would be going in. Regents of the University of California:P sues D psychiatrist after D failed to warn P about their daughter being in danger due to the admissions of one of D spatients. you cannot fail to complete aid Thus. and people who are in control of others. Sued power company. Unlike vicarious liability. and D being aware the P was going to dive does not establish a duty to act (4) Knowledge of a dangerous condition is not sufficient.

and then that child shooting someone would be negligent entrustment. rules that negligent entrustment can still be achieved if the D provides funding to entrust something negligently. Must consider the dangerousness of the instrument.granted a special status and not have a duty to third parties. No duty existed because Port Authority did not discharge asbestos into environment. K-Mart Corp: Court held that one who supplies chattels to another is not entitled to assume that it will be used carefully if the supplier knows or has reason to know that the other is likely to use it dangerously. The question here was if it had a duty to this particular P. 2. Invoking concern about limitless liability to an indeterminate class of persons the court held that D owed no duty to P wither in its capacity as employer of P s husband or as landowner in control of the premises at which asbestos products were used. Halsted:D father co-signed financial note so his adult daughter could get financing for a car. Court cautioned that foreseeability cannot be the basis for finding a duty exists. Ct. as well as who is receiving it i.Defendant can be held liable if defendant leaves an instrument with a person whom the defendant knows or should know will use it an unreasonably risky manner. Type of injury must be of the nature that made the negligent act negligent to begin with (handing a child a gun. The power company had already been sued and had been found grossly negligent for the power outage.its role is limiting the scope of duty once it is otherwise determined to exist c. thus limiting crushing liability 1. The was no basis for imposing a duty to control a third party. Utility Company defendants sometimes placed in a different category. Thus. or lacks the training and experience necessary for such use 14 . Wilson:P was injured while riding as a passenger with D s nephew driver (accident caused by nephew s negligence). noted that it had to establish an orbit of duty to keep potential consequences for wrongful acts to a reasonable level. In re NYC Asbestos Litigation: P the spouse of an employee of D Port Authority sued for asbestos-induced cancer she contracted as a result of washing her husband s work uniforms containing asbestos dust. Even if a duty was found. Must limit liability to a controllable degree. D could still have escaped liability because of problems with proximate cause (too many intervening factors). ii. Requires negligence from both the defendant giver and the receiver (Like a 16 year old crashing into a victim s car after drinking a case of beer given to him by the negligent defendant) . as case warranted a prima facie case of negligent entrustment. P showed that Ds were aware that the nephew did not have a valid driver s license. b/c general population has to have power. P sued D aunt for supplying the money to her nephew so he could buy a car. Peterson v. She made all payments. She caused accident due to her drunk driving. Vince v. as opposed to simply loaning something negligently. rather it failed to warn employee of risk posed to his spouse 1. but handing a child a gun who then drops it on someone s foot would not be negligent entrustment) d. Aunt also knew her nephew had abused alcohol and drugs. Court declined to impose duty on co-signer ii.Kitchen v. Negligent Entrustment. and that he had repeatedly failed the driving test. and such crushing liability could threaten general public. P also sued the car dealership and its president whom sold nephew the car. Guns. Court found against Ds. as where the other belongs to a class which is notoriously incompetent to use the chattel safely. Ct.

Hicks:Defendants got married. Court reasoned social hosts are vastly different from commercial vendors. Berte v. have not rejected these distinctions. social hosts may have a duty to minors whom injure themselves as a result of hosts negligence iii. Bode: court held that under the statute once P proves the bar served the patron to point of intoxication. who profit from such enterprising. whereas social hosts do not have such monitoring abilities of their guests.e. In landlord/tenant issues. even though criminal liability might be imposed. The landowner must warn known frequent trespassers of seriously dangerous conditions. Exceptions to above include: a. Trespasser. Traditionally. Gilger v. so there cannot be a breach. thus commercial vendors have an economic ability to monitor the consumption of their customers. iv. Court ruled that. or warn. either knowingly or unknowingly. 1. However. social hosts such as the Ds do not have a civil duty to protect third parties from the negligent acts of the Ds social guests. and Ds nephew became intoxicated after drinking at the hosted bar at the Ds wedding reception. Some argue that there should be no liability of any sort of commercial vendors or social hosts with legislative mandate because of the pervasive legislative regulation of alcohol. Therefore. the burden of proof is on the bar to prove that the intoxication played no role in causing the harm. A duty did arise after the guest was injured. duty is established by status of person on land. DNA 15 . DUTY OF LANDOWNERS AND OCCUPIERS a. Court held that legislature meant for all harm resulting from violations of this act to be subject to liability even if they resulted form the criminal conduct by the intoxicated person. One s status is usually an issue of fact. Can t try to harm them 2. repair dangerous circumstances. i. Under common law. Nephew then drove a car and injured the Ps. D had no duty. including Alabama. 3. v. Estate of Templeton v. who enters and/or remains on the land without express or implied permission 1. and artificial conditions that are dangerous. Daffern: court refused to impose a duty of due care on social hosts where a minor brought his own alcohol to a party where the D observed him drinking. Dram Shop Acts: impose liability on commercial enterprises for harm resulting from intoxication when they serve a person to the point of intoxication or serve an intoxicated person. IV. ii. Reynolds v. Majority of jurisdictions. tenants were usually said to have a duty but there are many exceptions now. Don t have a duty to inspect land. Duty is owed by the lawful occupier of the land. furnishers of liquor are not liable for damages to third parties. Social hosts and liability to third parties i.someone. not obviously dangerous conditions. He was killed in a car accident leaving the party. Hernandez: Court refused to impose duty on social host to protect guests from another guest who had become drunk at party on the premises. Ps bring suit of negligence against D wedding couple. 1.

can be someone who enters a business or store. Heins v. He slips and falls as he leaves hospital 16 . warning may not be enough for children ii. Some jurisdictions require warning for all known dangers 2. Exception: open and obvious dangers (some jurisdictions still impose a duty to warn or correct open and obvious dangers. Duty to warn of known dangers not obvious to guest a. Have to reasonably inspect premises and warn or repair any nonapparent dangers (depending on which is reasonable). it is more likely the court will find one is a licensee. b. but the Ct. and P suffered an injury after slipping on ice outside of the home. Don t have to actively inspect land 4. Liability may be imposed when: 1.invited onto land. rejected the argument and ruled for the Ds. Webster County:Man visits daughter who works at hospital and talks to someone about playing Santa at Christmas. 6. and the Bible study was not open to the general public (had to sign up at the Church). Have to exercise reasonable care to prevent harm if you know trespassers are there. Ds did not know of the ice patc. Have duty to protect from ice. b. but not for material benefit of landowner (social guest. If you don t charge (such as a museum) but are opened up to the public. you probably still have same duty 6. Child has to be harmed by artificial conditions 2. Highest duty of care 2. Kinney:P attended a Bible study at the Ds home. Court found P to be a licensee because Ds were not gaining any material benefit from his presence. If it is a home/social situation. Must conduct activities in a reasonable manner not to harm invitees 4. Usually a business. but as a friend) 1. P claimed he was an invitee. Licensee. 3. Has landowner failed to exercise reasonable care to remove danger.test. Have to conduct activities with reasonable care 5. Don t have to actively repair dangers 3. c. Landowner has to know or have reason to know that children trespass 3. Invitee. it is more likely that the court will find one was a invitee 5. Children and attractive nuisances i. Unlike trespassers. Children don t appreciate dangers themselves 5. Utility of maintaining the condition and the burden of eliminating the danger are slight as compared to the risk to children involved a. Condition poses risk of death or serious personal injury 4. If it is a business situation. etc. not on public land.person who is invited onto the land by the owner/lawful occupant for the potential material benefit of the land owner (Ex: customer in store) 1. Carter v. and some jurisdictions impose a duty if there is something else dangerous about an open or obvious danger which is non apparent) iii.

Landlord and tenant: i. Courts less willing to place a high duty of businesses in high crime areas to prevent third party criminal acts. Court held that since he went to visit his daughter he was a licensee. the Supreme Court of Nebraska determined that while the status of trespasser should be maintained. A landlord must act as a reasonable person under all circumstances.balances the foreseeability of harm against the burden or cost to the landowner (this is similar to the Carol Towing case with Judge Learned Hand . Ross:Landlord only liable if the injury is attributable to (1) hidden danger in the premises of which the landlord is aware but tenant is not (2) premises leased for public use (3) premises retained under the landlord s control. condition. Court argued that the focus should be on the foreseeability of the injury. ii. iv.is B>PL?) (Posecai argues this is the best) ii. and location of the land. law does not hold a landowner has a duty to protect from crime i. Wal-Mart:P was robbed at gunpoint in Sam s parking lot. D did not possess the degree of foreseeability for imposition of a duty to protect. Tests: a. as well as any other factors involved with foreseeability (most common) d. i. similar incidents which occur on or near the land to put landowner on notice of future risks and will determine foreseeability of the landowner c. Liability less likely if the landlord had promised to repair but had failed to take any steps to do so. Instead. Uses a balancing test to determine duty: balances foreseeability of harm and gravity of harm against burden imposed on business to protect against harm. Traditional rules of liability for defective conditions have insulated landlords from liability except in a few situations. Intrafamly duties 17 . and the burden of reducing or avoiding the risk e. including the likelihood of injury to others. Ct found D did not owe a duty to protect P from the criminal acts of third parties. landowner must know of a specific imminent harm that is about to occur b. Prior similar incidents test. Posecai v. P contends D was negligent in failing to provide adequate security in parking lot considering the crime rate in the surrounding neighborhood. On appeal. Specific harm test.takes into account the nature. the statuses of licensee and invitee should be abandoned. iii. such as common stairways (4) premises negligently repaired by the landlord. Totality of circumstances test. but the distinction between bad and no repairs is disappearing. the probable seriousness of such injuries. Security guard was on duty but his job was to protect the cash office inside the store. NE court says this should be just the reasonable standard of care d.because of an accumulation of ice. Court holds that businesses do owe a patron a duty to implement reasonable measures to protect them from foreseeable criminal acts.for duty to exist. Sargent v. the landowner should be held to a standard of reasonable care to all lawful visitors. f. Generally.prior. because then almost no businesses would locate to such areas.). 1. Balancing test (California and Tenn.

Court now recognizes reasonable parent test: Did the parent act as a reasonable and prudent parent a. No parental immunity just use the reasonable parent test 4. and the rescuer must have also recognized this danger d.Parental immunity exists with exceptions such as intentional torts g. was revived. Mother left him unattended while she answered the phone. P sued D after D negligently drove his automobile into the car occupied by P and her husband. b. Yes. In order for a defendant to have a duty to a rescuer. Can spouses sue each other? 1. The danger or appearance of danger must be imminent c. Can a child sue a parent? 1. Alabama law. and although P was in the car. sues mother fro negligence. The rescuer must have exercised reasonable care in attempting the rescue DUTY: NONPHYSICAL HARM I. ii. A reasonable person would have recognized this danger (or appearance of the danger). Reasonable parent test 2. This would be to both spouses benefit. They were considered a single economic unit. she did not actually suffer a physical injury. as conservator for son. Father. the other spouse would sue to get payment. There must be danger or the appearance of danger to a victim. Duty to rescuers i. Bush: An emotional harm case. Christopher drowned.i. Concerned with the problem of collusion. P asserted that she did suffer emotional damages b/c she was very fearful that she would 18 . Emotional Harm a. If a negligent defendant places a victim in danger by his negligence. Traditionally allowed emotional damages only if there was physical harm (physical impact rule). Falzone v. P s husband was physically injured. then the defendant is not only liable for the injuries suffered by the victim. Court rejects former standard which did not recognize total parental immunity but allowed it when the parent was acting within their parental authority or discretion. Area of parental immunity applies where doing normal parental authority Gollard test c. but suffered brain damage. Broad b. Duty to child supersede religious beliefs 3. but is also liable for injuries suffered by a person who attempts to rescue or render aid to that victim (some jurisdictions allow for a plaintiff rescuer to recover damages after being injured while attempting to rescue a negligent defendant) 1.if one spouse had liability insurance. and such danger was caused by the defendant b. Parental immunity a. the following four elements must be satisfied: a. Broadbent v. But they use to not be able to. Broadbent:Christopher was swimming in pool.

To hold airplanes responsible for possible emotional injury for such a large and indeterminate group of people would expose them to limitless tort liability and the unpredictability of emotional distress damages could add to the cost of insuring air transportation. Boston:Court concluded that repeated hysterical attacks are sufficient to corroborate existence of the claimed distress. and hence injury to them is foreseeable 2. Most courts allow recovery where P was aware of impending death or injury even if this period was very short. Alabama and other jurisdictions have adopted holding of Falzone to replace the physical impact test (zone of danger and objective evidence of damages incurred) 19 . 1. Management Activities: P employees of Honda dealership who feared that a falling plane would crash into them. 2. Sander v. It would be illogical to deny item where the feared harm came to pass. but that transient symptoms such as vomiting did not qualify even though they clearly involve physical functions of the body ii.be severely hurt by the crash. 3.P must be in the relative zone of danger and immediate risk of physical harm caused by D s negligence to recover (near miss rule). i. Sullivan v. as long as objective proof of the emotional harm was offered. Emotional distress victims who realize they are doomed 1. Lawson v. Prima facie case because of his unusually disturbing experience and physical symptoms iii. Quill v. Rationale is that D owes bystanders duty of care because they are within area of the risk created by his conduct. Zone of danger test. the injured person may recover if such bodily injury or sickness would be regarded as proper elements of damage had they occurred as a consequence of direct physical injury rather than fright. reversing former precedent requiring physical impact and held that P could recover for emotional distress caused by a reasonable fear that P would be harmed by a near accident.000 feet in an uncontrolled tailspin before pilots regained control for the severe anxiety he experienced whenever he flew after the incident. that headaches or nausea could qualify if they lasted for a substantial period of time. Many states have survival statutes that permit the decedent s estate to proceed with any claims that the decedent might have brought but for death. Court awarded damages holding that the decedent suffered many faces of pain during the year following the realization that she would die 4. Their fear existed for a brief moment and civilized life would be impossible if there were such a tort. Elston Frost. Ct. Court found for P. where fright is adequately demonstrated to have resulted in substantial bodily injury or sickness. Geib. Trans World Airlines: court awarded damages to passenger who plunged 34. Some states bar the recovery for intangible benefits if the victim is not alive at the time of the final judgment iv. PA:D s negligence in reading a pap smear test led to a failure to detect cervical cancer until it was too late to save the decedent. 2. ruled that Where negligence causes fright from a reasonable fear of immediate personal injury. Zone of Danger Test. 1.

Ct. A few courts in HIV cases allow recovery for the window between the event that creates the concern and the results of the test showing that infection did not occur. the P is exposed to toxic substance which threatens cancer and b. P had sought help from a psychologist or psychiatrist. b/c if it allowed recovery for those that feared getting cancer. 3. Due to D s negligence. P s fear stems form knowledge. Windows: a. i. Williams v. P must show needle in question actually contained virus. State:involved a house that P built with his own hands. Also. They concluded that P was entitled to recover damages for serious and genuine distress that would be experienced by a reasonable person 4. Court employed the Zone of Danger test. Most jurisdictions adopted this as part of actual zone of danger analysis. ruled for the D. finding that exposure to a substance does not satisfy common law rule of physical impact needed to place P in immediate fear of danger. water flooded the house and in addition to property damages court allowed P to recover for emotional distress upon showing that a reasonable 20 . Sup. Buckley: P sued D after being exposed to carcinogenic asbestos while working for D company. b.:D s dumping of toxic wastes exposed P to carcinogens who face an enhance risk of developing cancer due to exposure. Potter v. As a result of D s negligent breach of duty owed to P. Rodrigues v. Court said in absence of a present physical injury. and he did not develop any physical symptoms as a manifestation of emotional distress. but argued P did not have grounds for a suit. corroborated by reliable medical or scientific opinion. as he had not gotten cancer. Almost all states recognize claims for people in the zone of danger i. would there be any money left for those plaintiffs which actually did get cancer 1. c. P must also show a serious fear that the toxic exposure was of such magnitude as likely to result in feared cancer. Firestone Tire and Rubber Co. v. D admitted negligence in exposing P to asbestos. Courts worry about speculative claims and unchecked litigation c.1. Ct. Courts reluctant to award damages for potential future physical harm 2. damages for fear of cancer may be recovered only if P proves that: a. also noted a policy reason for its decision. Waldman:refused to required zone of danger test and in favor of asking what a reasonable well-informed citizen might fear. that it is more likely than not that the P will develop cancer in the near future due to toxic exposure. and P did not suffer any physical impact as a result of D s negligence and P was not under the immediate risk of physical harm as a result of the D. b. HIV cases: a. d. Courts won t award recovery for emotional distress resulting from damage to property caused by D s negligence. Metro-North Commuter RR Co. Another window situation involves fears induced by negligent acts affecting pregnant women. P argued he suffered emotional distress as a result of fearing he would develop cancer.

for the stress has not yet ripened into disabling shock 2. Expanding on the three factors established in Dillon. Animal Quarantine Station:P learned over phone their dog had died because of negligence of D. i. Severe distress ii. man normally constituted. Proximity 2. Davis: P saw his mother s car get hit on the driver s side and his mother was only slightly injured. so insufficient to cause legally cognizable harm. h. Barnhill v. Barnas v. P awarded damages for severe emotional distress.e. Portee v. even if distress was genuine. Geiger: mother who reasonably but mistakenly thought her child had been horribly injured in an accident she witnessed. at that same time. f. Not recognized in Alabama who maintains zone of danger standard. Court denied recovery because distress based on a mistake will vary with the disposition of a person and so unwilling to expand circle of liability to include unreasonably that class of person 21 . Campbell v. Bystander Liability. and P did believe that his mother would be seriously injured in the type of accident that occurred 3. She didn t discover until later that he had actually been hurt in fire. Jaffee: Seven-year-old boy died after getting stuck in an elevator shaft and being dragged up when the elevator was activated. Carroll:Court rejected P s argument to use bystander analysis because a dog is person property and distress from witnessing injury to property did not give rise to action. Jurisdictions vary over recovery for emotional distress over pets i. Direct sense impression 3. g.most courts require some kind of objective evidence of emotional harm such as physical manifestations or job loss. Mother died next day from trauma alleged to have resulted from her experience. Close family relationship 4. Mother was a bystander. ii. so long as P witnesses the accident. the court finds that a bystander can recover for emotional harm if they can establish the following factors: 1.Some jurisdictions allow for recovery for P s emotional harm when D s negligence causes an action which results in the injury of P s family member or close relationship. Scherr v. Jurisdictions that allow bystander relief usually base it on some version of the Dillon standards. Court said proper test was whether a reasonable person would believe. would be unable adequately to cope with the mental stress engendered by the circumstances of the case. Hilton Hotels Corp: P s wife saw live TV coverage of fire taking place at the same hotel she knew her husband was attending a meeting at.Jurisdictions vary with arbitrary line drawing: 1. Several states have enacted statutes reversing the common law antipathy to owners recovering for distress resulting from abuse or neglect of their pets Intentional emotional distress can have cause of action without physical injury No eggshell P for emotional harm. Roman v. Severe injury 5. unless the direct victim of the accident suffers serious injury a. Court found that P failed to come within sensory perception requirement. Some courts refused recovery.

P sued those responsible for thawing for emotional distress due to his fear of metasiss. If someone negligently handles a corpse. The baby remained missing for 4 ½ months. Tradition of allowing claims when a person is negligently informed that a family member has died when he or she has not 1. Gonzalez: Mother could recover for emotional distress due to medical malpractice resulting in the miscarriage or stillborn birth of fetus. Court rejected the claim against the pharmacist because the goal of the transaction was to provide medication for the baby and because the P were not patients they cannot recover as direct victims of the D s negligence iv. Court ruled that D owed a duty to the infant. Dobran v.:P followed incorrect label and gave their infant excessive dose of medicine. and the Ps did not witness the abduction occur 1.i. generally allow recovery for emotional distress of family. Loss of Consortium. Recovery allowed because of foreseeability of distress that would be caused a. Johnson v. Court allowed recovery because in limited circumstances where contractual relationship exists for services that carry with them deeply emotional responses in the event of breach 2. but Ct. Sell v. 4.were inadequate 5. Emerged from perceived economic benefit of wife. Broadnax v. Recognition of vulnerability of people who have lost someone and foreseeability of harm. Physicians owe duty to both mother and fetus Exceptions to zone of danger rule: i. but not the P. Huggins v. Expanded to loss of 22 . Franciscan Medical Center:the P had cancer and the tissue that was being tested thawed and could not be tested. Courts specially view emotional distress suffered by mother s resulting to harm to her child during labor and delivery whether the mother was conscious at the time of injury or not. Also. Her suit for emotional distress reject on grounds that the P s reactionscontinual crying. Larsen v. trouble eating and sleeping. still ruled for D. Longs Drug Stores CA Inc. Jamaica Hospital: P parents sue D hospital for emotional harm after D allowed the Ps daughter to be abducted from its premises. The Ps were not in the zone of danger of the abduction. Mary Lanning Memorial Hospital Ass n: P mother had been incorrectly and negligently informed her son had been killed. The court rejected the claim on ground that the P was not placed in actual physical peril by the D s action ii. Banner Health Systems:D hospital switched babies and real daughter was separated from P for 43 years during which P was suspected of adultery because the child s coloring did not resemble the father. in addition to the Dillon factors (see Jaffee) some courts require the emotional distress must manifest itself in some sort of physical sickness or illness (resulting-physical-injury requirement) a.Cause of action for P when spouse s companionship is lost. and some medication. 1. Inc: Son gets a severed leg in a bag that his supposed to be his diseased father s belongs. CA legislature said Domestic partners shall be entitled to recover damages for negligent infliction of emotional distress to the same extent that spouses are entitled to do so under CA law iii. Gammon v Osteopathic Hospital of Maine.

therefore. Can actually make person whole iii. you can also get some compensation for disruption of business. Phoenix Professional Hockey Club Inc v. Traditionally. This idea has spread to areas of performance contracts and professional services. i. 2.II. (ex: beneficiaries of a will) d. Disruption of business: The usual rule is if you suffer some physical harm. which suffers losses even though someone else carries out the same tasks iv. Court rejects notion that a requirement of particular foreseeability can adequately serve as a baseline for recognizing recovery for stand-alone economic loss. but does not apply for unmarried couples Most courts do recognize a loss of consortium when a parent has lost the companionship of a child. iii. traditional rule is that there is no duty and. Husband can sue for loss of services around the house 3. 1. Don t recognize same loss when a child loses a parent. D s building had collapsed. but also for economic loss due to a decline in customers. Alabama s loss of consortium is for loss of services of child but not for loss of companionship. certainty and predictability in allocating risk would decrease and impede future business activity b. Somewhat arbitrary rule of who gets in court and who does not.) c. City Express Inc v. no cause of action. 1. Wife can sue for loss of companionship iii. An exception to the above occurs when there is a professional duty to provide reliable information. Court agreed that the claim was not unduly speculative. Same result follows where an injured employee is president of the company. General ideas about compensating for economic harm: i. ii. when such information is not true Economic Harm a. In cases of purely economic harm. i. Some courts barred actions in situations that may appear to better lend themselves to contract remedies. Express Partners:Building owner sued architect for misdesigning the building in a way that made it unusable for its intended purpose but not dangerous. but nonetheless dismissed it. Easily determine what loss is ii. companionship for both spouses. Court denied recovery holding the economic loss rule was designed to prevent disproportionate liability and allow the parties to allocate risk by contract If tort and contract remedies were allowed to overlap. a defendant can be held liable for negligently informing a family that one of its members has died. Hirmer: goalie injured in car accident and hockey club who employed goalie sued only for out of pocket expenses incurred in hiring and employing a substitute goalie. 532 Madison Avenue P business brings a suit for disruption of business after a public nuisance forces the P to shut down its business for a temporary time period. There may be a problem with unending liability iv. Attorneys can sometimes be held liable for purely economic losses for someone who has no contractual relationship with them. (Store with smoke damage can get into court and recover not only for smoke damage. A store without smoke damage cannot get into court despite a loss of customers. leading to debris blocking off the street where 23 .

the defendant s negligence is the actual cause of the plaintiff s injury (Actual cause or but for cause). unless the P incurs greater damages as a result of the nuisance than those damages suffered by the general community. Most common response has been to tell P to sue for second disease when it develops. Probabilistic recovery for future harm 1. Court rejects P s claim. CAUSE-IN-FACT a. Several arguments in favor of permitting those who can show a betterthan-even chance of future disease to sue now. 3. and he sued the D for negligence. Defendant s negligence was a but for cause of the plaintiff s harm 2. Court ruled for P by dismissing summary judgment. 1. Court has also held that P could only obtain recovery for emotional distress related to the prospect of developing the more serious condition at the time of the suit for the second disease 2. Actual issue of Cause-in-fact is simple. Stubbs v. the plaintiff s injury would not have occurred. Defendant s breach of his duty of care must factually lead to the plaintiff s injury (breach must be a factual cause of the injury) ii. Concern about giving a large sum to someone who does not yet need it 3. Under this doctrine. These include difficulty of proof if one must wait 20 years to sue because fault requirement and also to causation since many more events have intervened. To prove Cause in Fact. Used reasonably certain rule that P must show that it is reasonably certain that D caused P s injuries i. arguing that his illness resulted due to D s negligence in allowing the drinking water supply to be intermingled with a contaminated source. In general i. 2.P s business was located. however. his injury must be caused by the defendant s negligence. Deterrent aspect of tort 24 . Defendant s negligence. then the plaintiff can recover for purely economic losses created by the negligence of the defendant CAUSATION I. b/c there are at least nine potential causes of typhoid fever. Had it not been but for the defendant s negligence. City of Rochester: P got typhoid fever. as either the defendant s negligence caused or helped to cause the plaintiff s injury. plaintiff must generally prove: 1. For plaintiff to recovery. as P offered enough evidence (expert testimony and statistical research) to warrant a jury to determine if the fever was caused by contamination. Court also noted policy reasons (crushing liability) and there was no physical harm. D argued that P did not prove that D s negligence actually caused the injury. or it did not cause or help to cause the injury suffered by the plaintiff. so there should be no economic harm ii. The negligence was a proximate cause to the plaintiff s harm b. Exception to the Public Nuisance rule If a plaintiff business depends upon a public right. The negligence was causally linked to the plaintiff s harm 3. does not have to be the sole cause (or even the main cause) of the plaintiff s injury. ruling that damages cannot be recovered due to a public nuisance.

and they discover P has a fatal heart disease. skill.c. Some jurisdictions allow for lost chance recovery. even the defendant s negligence did not actually cause the injury i. training or education. Zuchowicz v. Hypothetical: P patient sues D doctor for medical malpractice after the D did not administer proper cardiac tests during P s visit to D for chest pains. P s wife developed PPH (fatal and rare heart disease) after being administered a month-long overdose of the drug Danocrine by D hospital. and expert witnesses argue P would have had a 30% chance of survival had the tests been initially administered by the D. and if scientific. Joint and Several Liability. Sometimes opponent stipulates as to the qualifications of the expert but when they challenge the testimony the judge must decide what goes before the jury. You slam on brakes but they don t work. D admitted negligence in the overdose. but Court rules in favor of P and shifts the burden of disproving causation to the D.generally applies to medical malpractice.Defendant (within a group of multiple defendants) can be held fully liable (responsible for the whole amount of damages) for injuries incurred by the plaintiff. Another car runs red light. P goes to hospital where the tests are given. Supreme Court found this too restrictive and said courts may need to give experts the opportunity to prove a maverick theory.Part of the judge s job to be gatekeeper of expert testimony. but P only had a 10% chance of survival three weeks later. experience. You sue both repair shop and driver. According to expert testimony. there was a strong causal link between the overdose and the death of the P s wife. Also. P s wife could not receive an organ transplant because of her pregnancy and then died. They are joint tortfeasors because their combined negligence caused one undividable injury.000) f. and P would be awarded 20% of total damages (30% minus the 10% survival rate. Results in an accident. because the Court deems that there was enough evidence to infer that P s wife s death would not have occurred but for the D s negligence. United States: Cause-in-fact case brought under the Federal Tort Claims Act (act which allows the ordinarily immune federal government to be sued for a tort action). After developing PPH. so would be awarded $200. Experts. Proportional recovery doctrine. allowed for the burden shifting because the FDA deemed such a negligent act wrongful.000 if P s life was worth $1.000. D argued P did not prove causation. or other specialized knowledge will assist the trier of fact to understand the evidence or to determine the fact in issue e. not recognized in AL i. technical. Lost Chance Recovery. Gate keeping role is an abuse of discretion standard when on appeal 1. as it could result in this sort of harm (satisfied type of harm) i. P offered two expert witnesses that stated P s wife s death was at least caused in part by D s negligence. How convincing does the theory have to be to let it in? Use to be that the testimony had to be a generally accepted theory.compensate all victims for a percentage of their damages because some of the plaintiff victims injuries may have been caused by other factors than the defendant s negligence (some victims got typhoid from other sources than the water) d. 25 . P later dies. Hypo:You just got breaks fixed. Federal Rules of evidence permit expert testimony when the witness is qualified as an expert by knowledge. Three weeks later.

Defendant only liable for the full amount of damages if his degree of fault exceeds a certain threshold (usually 50%) 3. and it did not matter if the Ds were acting in concert with one another.Defendant only liable for his percentage of fault (several liability) 2. No joint and several liability. The D bears the burden of proof of the non-party s liability ii. Court held both Ds jointly and severally liable for P s injuries. Summers v. Ordinarily. as the P was innocent (not negligent) 5. or if they were acting independently. P was injured after being struck in the face and neck with bird shot pellets fired from the direction of the two Ds. Shifts burden of proof to D where evidence is outside control of P (similar to res ipsa). or if both Ds had shot P. Factors that must be present to apply alternative liability: a. If one defendant is forced to pay the entire amount. it is liable for only 20% of the damages) 2. Burden of pursuing other potential tortfeasors on D 4. It was impossible to determine which D had actually shot the P.1. What should courts do when the sued D seeks to reduce its share of the fault by laying some or all of the blame on an absent person? The outcome depends on the wording of the state s statute. Threshold. Most states limit this doctrine with the application of comparative fault (if defendant was 20% at fault. use substantial factor test. Comparative Fault. Alternative Liability. 2. so one of the defendants may end up paying the entire recovery amount. but in this case that should not be so (D caused the injury to the innocent P). then he is liable for 20% of the damages). All defendants were negligent in a similar way b. P must prove the negligence of the D. Some states keep joint and several liability for only specific kinds of tort cases iii. Tice: While quail hunting. 3. Has led to different variations of the doctrine: 1. Normally. 1. nonpaying defendants on a percentage basis (not in Alabama). Idea is that the P should not have to suffer paying any of the damages. a. All Ds put the plaintiff at a general risk of the kind of injury that P did suffer 26 . California maintains joint and several liability solely for economic damages 4. Restatement permits assignment of fault to non-parties so long as the non-party is identified. that paying defendant can then recover from the other. and the D seeking to do so provides adequate notice ot the other parties. Instead of but-for test.Adopted by most states (but not by Alabama). Rule of this doctrine is that each individual tortfeasor (defendant) is jointly and severally liable for the entire total of the damages. allows for a defendant to only pay the amount of damages for which he was at fault for (if defendant is 20% at fault. the Court ruled for the P by shifting the burden of disproving liability to both Ds. Because the Ds were in a better situation to ascertain which one of them actually injured the P.Tool used in situations where one cannot determine who actually caused the injury. under this doctrine he can seek recovery from the other defendants.

PROXIMATE CAUSE a. Proximate cause. the Ps were unable to determine which one of the 300 Ds had supplied their particular mothers with DES. In this case. Eli Lilly & Co: Group of Ps sued a large number (about 300) of D drug manufacturers for producing the drug. Essential condition for market share liability is fungibility . Market share liability is theory of last resort to be used only where need could be show. cause in-law. Ps mothers took DES. Court still found for the Ps. there were too many drug company defendants to use alternative liability doctrine. Market Share Liability. and based its damage assessment based on the national market share percentage (a D s liability amount would be based on the percentage amount of how much it marketed DES for pregnancy on the national market. is used to show whether there is a causal chain between the defendant s negligence and the plaintiff s injury. Seeks to determine if there are any intervening acts that sufficiently remove liability. Also useful in cases where there is a large lapse of time between the negligent act and the surfacing of injury. and when such products are easily replaceable by similar ones. Might be necessary to bring forth all wrongdoers before the court ii. It is not necessary that the defendants be working together 3.provides an exception to the rule that a plaintiff is required to prove that the defendant s negligence caused the plaintiff s injury by a preponderance of the evidence. Because of the lengthy latency period between the taking of the drugs and the manifestations of injuries. Circumstances of the case would prevent plaintiff from ascertaining which actual defendant caused his injury d. May be necessary that the number of potential defendants is relatively small (like only two defendants in Summers) i. Doctrine normally only used in cases involving products. most courts will not hold defendant liable based on lack of proximate cause). Ruling based on policy that the Ds put the general national public at risk of harm. Hymowitz v. DES. and Court would not dismiss a particular D if it could prove that it did not supply one of other Ps with DES. and ruled that Summers only applies to those cases where the Ds have better access to the necessary evidence a. and the causation of the injury cannot be proven. and it led to the eventual harm of the mothers children (the Ps). it would be responsible for 20% of the total damages). The chain must be relatively short.all the products made pursuant to a single formula II. 27 . if it had 20% of the market. This also meant that P could not fully recover for the injuries. Deals with limits on liability for remote or unexpected consequences of tortious conduct. and the key to proximate cause is foreseeability (if the defendant s negligence could not be reasonably foreseen to produce the type of injury incurred by the plaintiff.c.

Alabama recognizes the Eggshell Plaintiff rule in cases where the defendant s negligence makes a plaintiff s already existent situation worse. Benn v. even if some of these injuries were not foreseeable (not foreseeable that a somewhat minor car accident would ultimately kill the P. Court ruled that if the P s injury is not of the sort of 28 . Court ruled that so long as the injury was caused by D s negligence.This rule means that the D must take the P as he finds him.K. Ltd. Morts Dock & Engineering Co. as opposed to its subsequent extent of harm. Most courts do not apply this rule in emotional distress cases (no eggshell psyche). Overruled by Wagon Mound. also the type of harm is foreseeable. was injured in an automobile accident caused by the D s negligence. The fire burned the entire ship. thus striking down Polemis. However. extent and manner of such harm does not have to be foreseeable b. (The Wagon Mound case): D spilled oil into a crowded bay and made no real effort to clean up the spill. Withy & Co. D then assured the P underwater welding company that it was safe to resume work after P inquired. The accident resulted in a fractured ankle and a bruised chest for the P. and D s servants negligently caused a fire on the boat while moving benzene from one area of the boat to another. who had a history of poor health and heart disease.. Eggshell Plaintiff Rule. P s expert witness testified that the car crash ultimately caused the already fragile P s death. stating that foreseeability was irrelevant if D s negligence directly caused the P s injury. Dillon v. Extent. Type of harm must be foreseeable.. Thomas: P. rejects foreseeability requirement of proximate cause 1. something that is not foreseeable to start a fire. Court ruled in favor of the D. i. and the charter contract mandated that the D would be liable for any damage resulting from a fire. Defenses to the Eggshell Plaintiff rule can be that the defendant could argue that the type of harm.Tradition allows D to argue that the type of harm. i. Type v. should have been foreseeable. any reward against the D utility for the exposed wire should be reduced drastically c. contributory negligence can curtail its application 3.i. The fire burned down the P s wharf and equipment.: D chartered the P s boat. Twin State Gas & Electric Co:A boy was electrocuted while trying to avoid falling after he lost his balance while sitting on the girder 19 feet above a bridge.) Ltd. Court still ruled against the D. a somewhat freak accident occurred as a flammable rag from P s wharf fell to the water and caught fire on the oil. v. and six days later. it should not matter whether such an injury was a foreseeable consequence of the D s negligence. the P died in the hospital from a heart attack. Applying the Eggshell Plaintiff Rule. the fire was started a board hitting a plank. In re Arbitration Between Polemis and Another and Furness. ii. rather than extent. regardless of whether the P is in a fragile state. and the defendant must make the plaintiff as whole as he was right before the accident 4. Overseas Tankship (U. but the extent of that harm is not foreseeable). Ltd. Thus. but will apply it in damage to property cases 2. should have to be foreseeable in order to apply this rule 5. Also. Afterwards. the Court held the D liable for both the P s injuries and his death. The court concluded that if it were found that the boy would have been killed by the fall without regard to the wire. this requires that a D pay for all of the damages suffered by the P.

The judge found the worker had become pre-disposed to cancer by ten years of work in the gas industry earlier in his life. a worker was burned on the lip by a piece of molten material which ulcerated. If a reasonable person could have foreseen such an injury occurring as a result of the negligent act. as the manner in which the injury occurred does not have to be foreseeable for the defendant to be held liable 1. developed into cancer and spread and the guy died 3 years later.injury that D s negligence could be reasonably foreseen to produce. Unforeseeable consequences of a negligent act are different from consequences that are foreseeable but take place in an unusual manner ii. Linking Principle. For foreseeability to exist. to impose liability on the defendant. Causal link says even if D s wrong was a but for cause of injury in a given case. not whether they could have foreseen the burn would cause cancer and he would die 2. then the harm is deemed foreseeable. Smith v.The injury that T suffers has to be the type that the D negligence was likely to cause. which occur as a reasonably foreseeable consequence of the D s negligence. Again. If reasonable person would have contemplated risk than it is foreseeable. Foreseeable does not mean unlikely to happen iii. D would be responsible for both oil damage and fire because fire flowed directly form what D did. Under Polemis. foreseeability will usually always be the key in cases of proximate cause. the type of harm suffered by plaintiff must be a foreseeable consequence of the defendant s negligence. Only the type of harm must be foreseeable to impose liability on the negligent defendant. A superseding cause can break the causal link between negligence and injury. Thus. Manner i.although it met the but for. Court reasoned that a D should only be liable for those damages. Sugar Notch Borough: tree fell on trolley car whose excess speed caused the tram to be at the specific place when the tree fell. the D is not liable for the P s injury. this is different from an intervening cause (natural events). no liability ensues unless D s wrong increases the chances of such harm occurring in general d. Because the burning of the wharf and equipment was not a foreseeable consequence of spilling oil into the bay. the D was not liable for P s injuries 1. which is simply 29 . The standard of care (and its subsequent breach) and the particular type of harm suffered are relevant to foreseeability 4. Type v. He held that Wagon Mound did not alter the principle that the D must take his victim as he finds him. Leech Brain & Co. 2. but the extent of such harm does not have to be foreseeable 3.The question is whether the employers could reasonably foresee the type of injury he suffered. speeding does not increase the probability of trees falling on trolley a. Court held the causation was not there . Berry v.:through D s negligence in providing inadequate shielding. Suggests foreseeability is the key to proximate cause. Foreseeability factors into the following: (1) Reasonable standard of care (2) Particular type of harm suffered 1. the plaintiff s injury must be of the kind that the defendant s negligence made more likely to occur.

and there was evidence that the rape had been planned.he donated his kidney to his father who had been hurt by D s malpractice. and in the process knocks the customer s nondescript. it is wrong also to his rescuer. a. arguing that it was not reasonably foreseeable that having overgrown bushes on the land would lead to rape (even though the property was located in a high-crime area). P brought suit. The P was raped behind the cover of some overgrown bushes on the D s property. The wrongdoer may not have foreseen the coming of a deliverer. The wrong imperils life is a wrong to the imperiled victim. who was standing a good distance away from the package. thus no action against the D. 1. rather. arguing that there is a duty to whoever is injured as a result of the D s negligence (duty and liability based on proximate cause). Doe v. Long Island Railroad Co. as his negligence could not be viewed as something providing a reasonable risk for third parties to be raped (foreseeability tied into scope of risk ) a. inconspicuous package to the ground. iii. but the Court ruled for the D. This caused a scale to fall on and injure the P. including criminal acts. Wagner v. Court found for the D. Court said that the negligence towards cousin would not lead to liability to the rescuer unless the jury found that the train conductor had invited the P to partake in the rescue and had accompanied him with a lantern. Court reasoned that the scope of risk would mandate not imposing liability on the D. The donor s actions were not spontaneous or instantaneous. the son s action was deliberate and reflective iii. which exploded on the impact. Negligent person can be liable for third party criminal cause unless: (1) the harm is intentionally caused by a third person and (2) is not within the scope of risk created by the D s conduct e. Moore v. Dissent disagreed. so as the rape could occur without being discovered by the public. Time 30 . International Railway Co. In this case. thus this is no duty owed by the D to the P (no duty means no breach of such duty. as such negligence enabled criminal activity. Rescue 1.: P was hurt while trying to rescue his cousin who had fallen from D s train due to the negligence of the crew. Unexpected Victim i. Shah: P alleged that he was a rescuer entitled to recovery. He is accountable if he had. The court denied recovery. Superseding cause argument frequently made in cases involving subsequent intentional acts by third parties. The P argued that the D was negligent in not cutting its shrubbery. the D had no reason to expect that hurriedly assisting a passenger onto a moving train would cause harm to someone not in the area. The package contained fireworks.: Two of the D s employees tried to help a customer board a train. Manheimer: P was raped on D s land by an unknown assailant. highly improbable and extraordinary superseding forces preclude liability. 2. Palsgraf v. Court noted that the P was outside the orbit of danger of the falling package ii.part of the chain of events. Cardozo rejects this approach saying danger invites rescue. holding that the D s duty is to those people the D might reasonably expect to harm with its negligence.

P was hurt. Distance: 1. Firman v. Intentional torts 2. Comparative Fault 1. and the defendant has the burden of proofing that the plaintiff was contributorily negligent (and thus caused the injury) iv. to shoot the P. the risk was not within the range of apprehension 2. plaintiff s negligence was be a cause-in-fact reason for his injury 1. Traditional defense under which a plaintiff s recovery would be barred if the plaintiff was in any way also at fault for the accident (reasonable standard of care applied to plaintiff when determining whether plaintiff was negligent) ii. have shortened the period for minors. Alabama still uses this system. Reckless act 3. PLAINTIFF S FAULT a. some exceptions to contributory negligence developed and it could not be a defense to: 1. Liability was imposed DEFENSES TO NEGLIGENCE I. Bowline:D collided with another car that hit a box containing the master traffic light signal for several intersections including one two miles away at which the lights jammed and in the ensuing collision. Last clear chance rule. the defendant cannot offer a defense of contributory negligence (do not want open season mentality on negligent plaintiffs) b. 2. The trial judge s dismissal of the complaint was upheld on appeal because the fact of negligence was not established for all purposes or as necessarily definitive of D s relationship to other s. several states. esp. To bar recovery. Requires factfinder to assign a percentage of the fault to T and (. Ferroggia v. Sacia:D s negligent driving. Because of the harshness of the doctrine. Recently. Most places have abandoned contributory negligence for comparative negligence. Several states have lengthened the SOL to protect Ps who may not realize that they have been injured or that their injury was caused by torituous conduct. 3. comparative negligence does away with the last chance rule 4.If a plaintiff s negligence puts himself in peril. Contributory Negligence i. Flexibility in weighing intentional harm and negligence 31 .1. Normally. in medical malpractice cases. but the defendant has a chance afterwards to prevent the accident by exercising due care. Tort limitations usually start to run at the time of the P s injury. If injury would have happened despite P s contributory negligence. conditions that have long latency periods iv. 7 years later. As in Palsgraf.. he struck a boy who sustained serious brain injuries that induced him. then there is not causation iii. Cases involving long time periods between the act and harm are not usually barred by the SOL. but fails to do so.

to ensure a fair verdict. Person who is 55% would end up paying for all his own injuries and 55% of the other person s injuries. as P was negligent in driving drunk. Normally. Under this modified version. Pure comparative negligence. In this form. as many patients have to go to the hospital b/c of their own negligence (this does not mean that doctors do not have to exercise due care just because the patient was negligent) a. P s wife brought a suit for medical malpractice against the D. plaintiff can recover 5% of the damages) b. if a party is found to be 55% at fault to the other party s 45%. and prejudicial. D argued that P s claim should be barred or reduced due to comparative negligence. McKinne: P was involved in a automobile accident with a friend after both men had been drinking alcohol. Asymmetries of modified system:  2 people are in an accident and sue each other. Court rejected D s argument. a plaintiff is barred from recovery if his percentage of fault exceeds a certain threshold (usually 50%). Evidence concerning patient s history of alcohol and drug abuse should not be allowed. as it noted that the P s negligence in this case was irrelevant. P had to go to the hospital. Due to the P s alleged unusual anatomy. No matter how little defendant is at fault. threshold percentage and the rules of the doctrine are not explained to the jury.  TA (B (C (D All are 25% to blame.minority of jurisdictions. Changes have been made by statutes and courts: a. the party 55% at fault would have to pay 55% of the damages to the other party. One is 55% liable and one is 45% liable for accident. it would establish a horrible policy. Happens with C? What if D paid more or less than he should have? Depends on rules of jurisdiction 6. Usually in those where court adopted comparative negligence. C can t pay and D has settled. Most modified comparative states compare the P s negligence to the combined negligence of D. however. as well as pay for all of his own injuries. as it was irrelevant. inflammatory. because the D surgeon still had a duty to provide proper medical pare to his patients without being negligent. Modified comparative negligence.5. which eventually killed the P.Most states have adopted this form. Fritts v. plaintiff can recover for that small percentage of fault (if defendant is 5% at fault in an accident. the tracheotomy led to a serious loss of blood. Types of comparative negligence. What i. If ruled otherwise. Such evidence is only allowed after the jury verdict during the determination of how much damages should be awarded (if found for the plaintiff) 32 . where the D surgeon attempted to perform a tracheotomy.

Algee: court held that the decedent s religious beliefs wouldn t justify her failure to accept a blood transfusion. iii. if such harm was created by the plaintiff s failure to exercise reasonable care after the accident (such as not seeking proper and timely medical care. it will not totally bar plaintiff s claim d. Barry v. Similar to Avoidable Consequences. because it is not internally inconsistent with comparative negligence c. Exxon Co. Reasonable believer notion ii. Avoidable Consequences Doctrine i. Anticipatory Avoidable Consequences Doctrine i. Court decided not to compare two faults and found that the decisions of the captain were made calmly. Courts are generally not willing to reduce plaintiff s damages/recovery because of this doctrine 33 . innocent and negligent intervening actors could not be superseding causes d. USA v. and such failure to exercise reasonable care results in the increase of damages incurred by the accident (such failure does not help cause the accident. Harding v. Deiss:14-year-old went horseback riding even though she knew she was allergic. The alternative would lead to the absurd result that in any hospitalization due to the patient s fault. Her parents sued saying that their daughter s death was due to negligence medical treatment at the hospitals. Superseding cause law survives the adoption of comparative negligence. Inc. the treating physician would not be liable for negligent treatment. Thus. Addresses the measure of damages but not liability. Courts not likely to apply this doctrine when plaintiff refuses to undergo a risky surgery v. c. and this results in the injury increasing) iv. but it concerns when the plaintiff fails to exercise reasonable care before an accident (such as wearing a seat belt). She had an allergy attack and went to two hospitals before she died. Doctrine that states that even if defendant s negligence did cause the plaintiff injury. The court followed the rule that pre-treatment conduct should not be considered in the liability phase of this type of case. it is different from contributory negligence) ii. the plaintiff has a duty to reasonably minimize the effects of such injury 1. Doctrine will only reduce recovery. Defendant cannot be held liable for the additional harm sustained by the plaintiff. leading to hitting a reef with the ship being a total loss. Plaintiff s recovery (by virtue of the lessening of defendant s liability) may be reduced if plaintiff fails to mitigate the effects of the injury 1. Quality Steel Products:Court held so long as the harm was within the scope of the risk. though. Sofec. deliberately and without pressure of an imminent peril.b.:D negligently created a risk to P ship and its crew during a storm by allowing a connection to break as the ship was pumping oil. Captain of the ship was negligent in a variety of ways. Munn v.

Express Agreements i. Whether the parties were in unequal bargaining positions b. If upheld. P had previously signed a form waiving liability of the D for any negligence. SKI. and a skier s assumption of the risk does not relieve the D from such a duty. although the D is likely to bear the burden of showing what part of the P s harm was due to the failure to use the safety equipment iii. The jury found for P but reduced award by 75%. Leon v. II. b. Although P had signed a release form before joining the club. Ltd. but only by a small percentage. Some legislatures. the 34 . Expert testified that the most likely cause of cancer was asbestos exposure alone with the incidence of smoking. Dalury v. Court decided not to enforce the contract between the two parties. 3. Like contract. He was advised to quit smoking but he continued. 1. ruled for the P.: P skier injured by a pole protruding upwards on a ski slope on the D s ski resort. Family Fitness Center:P hurt when sauna bench collapsed under him. 2. Thus. Court argued that such a liability waiver form violated sound public policy. he at most assumes risk of negligence. Some states (CA and NY) allow failure to use safety devices to fully reduce recoverable damages. Others say violation. Court will analyze the following factors when determining whether to invalidate a contract: a. ASSUMPTION OF THE RISK a. Whether contract was bargained over or whether it was a contract of adhesion (added on as a condition. Court noted that the D still has a duty to its paying customers to warn of and/or correct any dangers on its premises which could reasonably be foreseen to pose the customers to harm. serves as a complete bar to recovery 1. Another aspect is in the realm of synergistic interactions 1. D bears the burden of proof in raising such a defense. When P assumes the risk. which might result in harming the P. P still brought suit for negligence against the D. Judge s charge allowed jury to allocated comparative responsibility.1. have added a provision making the violation inadmissible in any civil action. but haven t said anything about civil consequences. may reduce civil damages. Champagne v. some courts have permitted the failure to sue belts or helmets to be found by a jury to be comparative negligence. Raybestos:P s job brought him in contact with asbestos. When statutes command use of safety devices. Consideration of public policy ii. if causally related to the harm. Like always.oral or written.offered on a take it or leave it basis) c. when making it a crime not to use a belt or helmet. 4. Need of the item that is bargained for by the consumer/purchaser (purchaser may need a house so bad that he would have little bargaining power in a housing contract case) d. P s claim would be barred. and the Ct.

Primary implied. Generally agreement by courts that gross negligence or recklessness may never be disclaimed by agreement iv. Ex: Bailment at parking lot with sign saying cars left at the owner s risk. P fractures his knee during his fall. which appeared to be the use of equipment. Jurisdictions with comparative fault tend to preserve Express assumption of the risk as a defense.voluntarily undertaking a risk that is inherent in the activity without any unreasonable behavior. The ride was named The Flopper. and these customers are laughing in merriment. 2. Murphy v. can recover (going in to save a child) ii. Going into a burning building to rescue something i. Can consider the surrounding circumstances.court found the writing no bar. c. Subjectively. 3. Court ruled for the D. Secondary implied has declined in use 6. Secondary implied.voluntarily undertaking the risk of someone s carelessness or negligence. P cannot recover from D 35 . and P witnessed customers fall on the ride before he agreed to get on. appreciated danger and voluntarily exposed himself to the risk. Unreasonable. Steeplechase Amusement Co. Subjective standard means what the person understood the risk to be. Nor was the D s negligence reasonably related to the object of the release. The release was ineffective since it had been placed between two parts that dealt with the risk of exercise without saying it was meant to insulate against the club s own negligence iii. Reasonableness is always an objective standard. Cases in which D claim that a contract exists by virtue of a sign posted on D s land combined with P s conduct. If reasonable. Post-injury releases 1. as well as the D not providing handrails on the ride.was drawn to the P s attention v.When the care is stolen the courts reject the claim that the bailment contract included the disclaimer. can bar recovery 4. so there could be no assumed risk. the P knew about the risk. but have given up implied assumption of the risk. no recovery (going in to save a hat) 5. because even if the D was negligent. No patron can be charged with realistically appreciating the risk of injury from simply reclining on a sauna bench. Understanding of risk and willingness to assume risk might be implied by the type of activity (football on concrete). Thus. Those written after the injury are essentially settlement agreements and raise typical contract issues. not what he should have understood the risk to be. some sort of proportional recovery usually allowed a. in absence of a showing that the limitation-whether on a sign or claim check.: P was injured on D s amusement park ride. Implied Assumption of the Risk 1. P assumed the risk of falling down knowingly and voluntarily. and P brought a suit for negligence. They recognize primary implied but may not call it assumption of the risk. and claimed the D was negligent on the fact that the ride started and stopped with a jerk. The bench was not a known risk.

Courts less likely to allow for recovery as a result of carelessness in amateur sports. an advanced skier. Mammoth Mountain Ski Area:in which the P. D was granted summary judgment. but it is customary in the sport. thrill of being at game. Liability would flow only if the participant intentionally injures another player or engages in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport. Will take into account the surrounding circumstances of the case. Sports and Torts i. even if the carelessness violates the rules of the sport 1. as it was debatable as to whether the plaintiff knew the extent of the risk inherent in this ride. Knight v. courts will look for showing of negligence. such as the custom of the sport (a foul in basketball violates the rules. you might have false sense of security d. 2. Usually concerns the issue of protective netting (for foul balls at baseball game) or some other sort of protective barrier (sturdy plastic guard wall at hockey games) a. Ski operators had no duty to pad their clearly visible towers and it would be anomalous to hold an operator who padded its towers as Mammoth did here more liable than an operator who failed to do so iv. Courts will usually only mandate that D put up 36 . The risk in this case was inherent in skiing. which have abandoned such doctrine. puck etc. Most courts have not been consistent with the issue of amateur sports. Generally. but in those jurisdictions. if you saw padding. P sued D for stepping on her hand an injuring it after the game had gotten aggressive and she had told him to be careful or she would stop playing. in that not only is the conduct outside the scope of the rules. If the D breached that duty. Connelly v. affirmative D based on the P s conduct would be available if supported by the facts ii. Today. Thus. recovery not likely for injury resulting from an unintentional. but it also violates the general customs of the sport iii. was skiing down an advanced intermediate run when his ski bindings released and he fell and slid downhill into a large metal tower that supported the ski lift. Courts most likely to apply implied assumption of the risk.a. but most agree that willful or reckless actions (except for boxing) that cause harm allow for recovery 1. Courts not likely to apply the reasonable standard of care for recovery from injuries in sport. Court said crucial analysis was on the duty D owed to P. the case would probably go to a jury. Conduct must be so egregious that it goes beyond carelessness. careless basketball foul) 2. as conduct must usually be at least reckless to warrant recovery. Spectator injury 1. Court denied recovering saying that on previous occasions it had identified some of the inherent dangers of skiing to include ski lift towers. thrill of catching ball. Courts rule that the participant knowingly and voluntarily assumed the risks inherent in that sport 1. Why not take these safety measures? Costs. however.argument of no notification of genuine danger of the ride. Jewett: informal game of touch football in the yard with both girls and boys.

Gonzalez v. Garcia:P knowingly accepted a ride from D with whom P had been drinking. P with choice of evils will not be found to have assumed risk 2. applied) ii. P was not contributor ally negligent. noting that a plaintiff s claim should only be barred from recovery if the plaintiff s degree of fault (arising from his assumption of the risk) was greater than that of the defendant s negligence (a question for the jury). Key issue of this case is whether implied assumption of the risk is a different system from comparative negligence 1. Swimming pools 37 . and P continued to use the middle staircase. Role of assumption of risk doctrine in comparative negligence jurisdictions i. and court affirmed judgment for P. Court affirmed D s summary judgment applying the assumption of risk to a defined duty of care. Cotton Hope Plantation:Implied Assumption of the Risk case. Scott: P electrician was working in D s basement when D allowed a grease fire to start on stove. as assumption of the risk could not exist under a modified comparative fault system. D did not fix the problem. Court had to determine whether the assumption of the risk doctrine could still totally bar recovery for P. Davenport v. even though the jurisdiction recognized a modified comparative negligence theory. Case about negligence. Court ruled for P. P grabbed newspapers and wrapped them around pan handled but the flames curled toward him and he tossed the pan but the breeze sent some of the first back onto him. Found P to be 20% at fault and D 80% iv. but have kept express assumption of the risk. D argued P assumed risk in only property was involved and he had no need to risk his life. and P sued D for negligence in failing to repair the lighting. Because there is no evidence that the screen was inadequate was presented. Davidoff v. if at all. Most comparative fault jurisdictions have abandoned the implied assumption of the risk doctrine.close to fixed standard of care a. These jurisdictions instead try to assign a proportion of fault based on a culpability level iii.netting/protective barriers in only those areas that are most dangerous. although it may exist under a different name (secondary implied assumption of the risk rarely ever. Boddie v. Metropolitan Baseball Club: the 14-year-old P was sitting in the first row behind first base during a professional game was injured by a foul ball. A person who fears injury always has the option of refraining from attending a baseball game or of sitting in a part of the park which is out of reach of balls traveling with sufficient velocity to cause harm e. and it is undisputed that there were unoccupied seats behind the screen on the day P was injured b. Primary implied assumption of the risk may still be applied. P had repeatedly alerted the D condominium owner that one of its three staircases (the middle one) was inadequately lit due to a burned-out floodlight. Assumed risk must be voluntarily. Court ruled that recovery would not be barred. as it was most convenient for the P. P suffered an injury one night while using the staircase.

and thus damages should be placed on the party who brought in an outside item. P had no control on D s building the reservoir. when the item does indeed escape from the D s land. Unreasonable assumption of the risk i. D hired contractors and engineers to construct a reservoir on his land. With unreasonable assumption. recovery will likely be barred) 1. but I 38 . Foreseeability still an issue in strict liability. but their presence caused the reservoir to break. Liability that does not depend on actual negligence or intent to harm. Exceptions include an act of god. Fletcher v. as reasonable assumption of the risk would not. should put burden on person who had something to gain from whatever caused the damage 1. Usually applies an ultrahazardous activities or in products-liability (which sometimes resemble traditional system of negligence liability) cases. D was unaware of old mine shafts being beneath the reservoir. especially when it was done for the party s benefit. still imposed liability on the D with the basis of strict liability. or in cases when the P s own negligence contributed to the injury ii. but Ct. Several cases have denied recovery to Ps who knowingly dove into shallow or murky water or who dove from platforms that they hadn t tested. this could result in totally barring a reasonable person from recovery. for his own purposes. b. brings in a foreign item (such as the water). which could pose a risk to others if it escaped the D s premises. Diver s reckless behavior is called a superseding act of negligence absolving Ds. I am compelled to give up many natural rights. and the D then brought in outside water and maintained it on his land with the reservoir. and maintains it on his land. most jurisdictions will look to determine whether such an unreasonable assumption created more fault than the actual negligence of the defendant (if so. These cases do not fit into the general rules of negligence liability because the D has not been negligent. 2. P tenant coal miner brought an action against the D neighboring landowner for damages incurred by P. 3. STRICT LIABILITY a.1. but is based on a D s absolute duty to make something safe and prevent harm. Losee v. Court ruled that strict liability should apply when a D. Open and obvious danger of diving into a pool barred recovery obviousness of risk negated any duty f. Rylands: Important case as it relates to the formation of the strict liability doctrine. Strict liability only requires that the D caused P to suffer damages (causation and damages). while allowing at least partial recovery for an unreasonable person ( a drunk man is in more need of a safe street than a sober one ) III. General rule if you have two people on property and neither are at fault. However. D was not negligent in any manner. Can fit more easily under the umbrella of the comparative negligence system. exploded and was catapulted onto P s land through several of his buildings the court extolled the virtues of the fault principle in an industrializing society: By becoming member of civilized society. Ruling upheld on appeal i. and it then flooded the P s mine. causing great damage. Buchanan:D s steam boiler which was used in connection with paper manufacturing business.

a piece of wood was hurled from the tree. Court ruled that. one party s right to the overall.receive more compensation form the surrender by every other man of the same rights and the security. 2. Ventron Corp. entire use of his property must be prioritized over (when they come into conflict) another party s right to use their land for a specific use (such as blasting). The P sued on grounds of strict liability. it should also be applied to protection of the person. Court applied the precedent that states although both parties had a right to legal use of their respective properties. Still many hazardous activities which are socially desirable. concussion). Cities Service Co v. 3. 1. Law of liability has evolved so landowner is strictly liability to others for harm caused by toxic wastes that are stored on his property and the court adopted the principle of liability (every popular in environmental harm cases) c. if strict liability can be applied to property. Exception was when injury was not direct but consequential (debris v. predicated upon different conditions. advantage and protection which the law gives me. a. and the piece of wood struck and killed the P s decedent. Turner v.:damage action for cost of cleanup and removal of mercury pollution emanating from a tract of land on which Ds conducted mercury processing for 50 years. State. The excavation was performed using dynamite blasting. Dept. 39 . Evolution of Strict Liability Doctrine i. Sullivan v. Court held strict liability doctrine to be applied because many areas are overcrowded and even the non-negligent use of one s land can cause extensive damages to a neighbor s property. necessarily within the contemplation of the State and its grantees when grants were made. Court then applied the precedent to include the right to protect the safety of one s person. and obviously the rule announced in Rylands of strict liability. With them the storage of water is a natural or necessary and common use of the land. Dunham: D conducted a lawful. and the Court ruled for the P. necessarily depends upon attendant circumstances and conditions which obtain in territory of the original grants or the initial terms of those grants: TX has different conditions of England and is an arid region. it now seems reasonable that they pay their own way 4. of Environmental Protection v. P s decedent was lawfully traveling on a public highway. careful. instead of being hit directly by the tree. Exception has now been widely struck down d. the blast rattled and windows in a house and caused them to break. State:dam broke and one billion gallons of slimes escaped into a creek and then river killing countless fish and inflicting other damage. Note: Debris falling on you or your property would allow a trespass action but concussion would not. and non-negligent excavation of a tree on his land. and in the course of such non-negligent blasting. For example. Movement away from technical distinctions such as debris v. so it transferred the policy of trespass to land to include trespass to person. Strict liability still usually limited to the type of harm that can be foreseeable i. can have no application here. Big Lake Oil Co. and it landed on the P s decedent.:What use of land is or may be a natural use. concussion.

which can be defective by being incorrectly manufactured. Moreover. Express assumption of the risk is still a defense in strict liability cases. Urging ( to find alternatives to dangerous activities ii. Court ruled for the D. citing that this case did not warrant the application of strict liability. PRODUCTS LIABILITY a. Extent to which an activity is inappropriate to an area. Court reasoned that it would be improper to hold the D manufacturer/shipper liable for accidents resulting in the transportation process. Good for cases where ( was negligent but negligence is hard to prove iv. High degree of risk to person or property 2. Internalizing the costs only works if everyone is involved. American Cyanamid Co. Theories behind strict liability i. Party that has the ability to take most precautions had the incentive to do so iii. The person and the independent contractor he hired are both strictly liable for nondelegble duties. v. so the P sought to recoup its loss from the D on a strict liability claim. as even an altering in the transportation route may not have prevented the accident. strict liability shifts those costs to the consumer.: D manufacturer shipped out 20. In general i. as exercising due care could prevent the spilling of the chemical f. 40 . e. which was near metropolitan Chicago. Involves the issue of holding defendant manufacturers strictly liable for defective products. D s best argument to avoid strict liability is that the activity is one of common usuage. Extent to the value of the activity outweighs the risk. Internalizing the costs.ii. The P was ordered to pay nearly $1 million for an environmental clean-up of the area. If company B is in a country that does not regulate pollution. than company A. may be pushed out of business. Inability to eliminate risk by exercising due care 4. iii. Better to spread the cost out if the act is inherently dangerous IV. 6. For this reason. According to the Second Restatement. and it hired a transporting company to deliver the liquid chemical to its purchaser. incorrectly designed.Ina free market economy. If a certain activity is going cause injury. iv. The railway car carrying the acrylonite was in the P s railway yard. Extent to which activity is uncommon 5. the consumer picks the cheaper method. who will take them in account when choosing demolition method. vi. when the car began to leak the chemical onto the ground. Movement toward talking about ultrahazardous or abnormally dangerous activities. or contain inadequate warning labels. the use of dynamite is cheaper than the use of a wrecking ball. Risking severe injury/ likelihood harm would be great 3. For example. which is in a country that holds it strictly liable for pollution. a hazardous chemical. v. Indiana Harbor Belt RR Co. an activity is abnormally dangerous if it is the following: 1. then it is better to spread costs out v. vi. Court reasoned that this is really a negligence claim.000 gallons of liquid acrylonite. But the real cost of dynamite is also the possibility of injury. If the harm is different from that which would be expected from the activity then strict liability will not be imposed.

that they do not require a warning 2. and the omission of the alternative design renders the product not reasonably safe. and the omission of the instructions or warnings renders the product not reasonably safe. b. 1. Product was used in a reasonably foreseeable manner ii. Whether a reasonable alternative design exists depends upon the consideration of several variants: Cost. Reasonable alternative design. even though all possible care was exercised in the preparation and marketing of the product. Consider defenses (assumption of risk. in the commercial chain of distribution. or a predecessor in the commercial chain of distribution. With inherently dangerous products. That defect caused injury (cause in fact and proximate cause) iii. and such a failure to use the alternative causes the product to no longer be safe a. Product was defective 1. Ex: knife blade falling off the handle ii. c. 1.a product contains a manufacturing defect when the product departs from its intended design. Might be possible to have negligence without strict liability. whether competitors are using a RAD (similar to the role of custom). you must show that: i. Bystanders can recover against a manufacturer for a tort case (does not have to be the purchaser/consumer) b. Design defect.a product is defective because of inadequate instructions or warnings when foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor. In some cases. 556) the defective products can be defined as follows: i. Inadequate warning. or a predecessor in the commercial chain of distribution. strict liability will always apply iii. because defendant s product is not absolutely necessary. Should consider both negligence and strict liability as possible theories. whether the RAD would decrease the overall function of the product. Defect was legal cause on P s injury 4. Product failed to perform as safely as an ordinary consumer would expect 2. 41 . and expert testimony for complex cases involving difficult subject matter. Prominence of the warning should be proportional to the danger d. Manufacturing defect. manufacturer can be held liable to those people beyond the immediate purchaser/consumer. According to the Restatement Third: Products Liability (p.ii. For strict liability. comparative fault and possibly a modification of the product). and such design was available to the defendant for implementation in a cost-efficient manner. iii. Defect existed when product left the manufacturer 3.that would have reduced the foreseeable risks of danger. Some products are so inherently and obviously dangerous.a product is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor.

Used good sellers i. ii. as it did not perform an adequate inspection of them before selling its product). MacPerson v. Product Liability Restate §12 imposes liability on the successor if the acquisition: 1. for example. Court seems to somewhat limit the imposition of liability to those products which are foreseeably dangerous if negligently manufactured ii. Slowly exceptions developed that expanded liability to immediate family members and for very dangerous goods. Who is entitled to due care? g. Inc:P injured when swallowed pin embedded in slice of bread and storekeeper liable. Constitutes a consolidation or merger with the predecessor 4. purchaser s family. f. satisfying reasonable buyer expectations. and guests in purchaser s home. Product must be defective for strict liability to be imposed. Most courts have declined imposing strict liability on sellers of used goodseven when the claim is that he product has had the defect in question since it was first marketed. Question that overlaps law of torts and corporations involves the liability of successor corporations for defective products marketed by businesses before they were bought by the successor.spreading the risk. and because it was foreseeable that others beyond the initial purchaser would use it.only the first applied to dealers in used products i. Key is whether such risks were foreseeable. holding the D strictly liable and rejecting the D s privity argument (duty not bound to merely contractual relationships).e. a contractual relationship was required for their to be a duty of due care. but rather to an automobile retailer. Progressive Grocery Stores. ii. Results in the successor becoming a continuation of the predecessor 42 . and thus D had a duty to reasonably inspect the product and its component parts (the wheels. court imposed liability on the D manufacturer i. Under the privity doctrine. Imposing liability on the retailer without any finding of fault that the burden may be heavy but it is one of the hazards of business h. After purchasing the product from the retailer. Because the product would be greatly dangerous if it contained a defect. P suffered injuries after the car collapsed due to a defective front-left wheel. Rule is defendant can be held liable for injuries resulting from the foreseeable uses of their product. most courts recognize a duty to purchasers. D still held liable even though it did not actually manufacture the wheels. Originally this was contract law. Reasons for strict liability. Today. Buick Motor Co. Successors i.implied warranty of merchantability and fitness for purpose. Is accompanied by an agreement for the successor to assume such liability 2. Results from a fraudulent conveyance to escape liability for debts or liabilities of the predecessor 3. Court ruled for the P. and risk reduction. Court reasoned that it was foreseeable to the D that the product would obviously be used by other people than the original purchaser (the retailer). Ryan v.: Strict liability case in which the D automobile manufacturer did not sell its product (a Buick automobile) directly to the P. even if such a use may not be the actual intended use (such as prying off the lid of a paint can with a screwdriver) iii.

and such defendants are to only ones capable of spreading the costs 1. Liability for design defects in military equipment cant be imposed pursuant to state law when: 1.5. The US approved reasonably precise specification 2. which are then purchased by trusting consumers. and it happened in the course of P moving the bottle from its case into the refrigerator. ii. Private contractor who followed gov. this does not include Coke bottles) n. Continuity of enterprise exception. and the defect caused the injury). because such inspection would have revealed the defect. Government contractors i. D had exclusive control over the bottle. Other nonsellers i. Strict liability has been extended to include a variety of suppliers and those who aid suppliers. but the concurring opinion noted that the D should be held liable on the basis of strict liability of products liability. The P testified that she was careful and non-negligent in handling the bottle. Strict liability has been imposed on commercial sellers who give products away or provide free samples as part of a promotion. Several courts adopted new. The supplier warned the US about the dangers in the use of the equipment that were known to the supplier but not the US l. The equipment conformed to those specifications 3. including commercial lessors. and the issue is not the conduct of either the manufacturer or the consumer 2.: P waitress sued the D soft drink bottling company for injuries incurred by P while handling an allegedly defective glass Coke bottle. may be held liable for injuries caused by its predecessor s products where the totality of the transaction between the successor and the predecessor demonstrates a basic continuity of the predecessor s enterprise. k. Escola v.a successor corp. a. Manufacturers of products which serve no utility should be held strictly liable (obviously. iii. specifications in making a product cant be held liable for inadequacies in the design as long as certain requirements were met ii. Concurring opinion ruled this way because public policy mandated that defendant products manufacturers should be liable for the goods it places into the stream of commerce. Purpose of the imposing of strict liability on products manufacturers is to foster safer products and better designs. Courts have been reluctant to apply the doctrine to companies that finance purchases by others m. Some courts have extended the doctrine to franchisors who impose quality control upon their franchises. Court ruled for the P on the grounds of res ipsa loquitur (D must not have conducted a reasonable inspection of the bottle. more expansive theories of liability for successors who acquired all of the assets of the predecessor. Only the defendant manufacturers are in a position to prevent defects which could cause injury. The successor may be held liable even though the sale of assets is for case and there is no continuity of shareholders j. Express Disclaimers 43 . Res ispsa loquitur v. strict liability i. Coca Cola Bottling Co.

the judgment was allowed to stand. If an article can be made safer and the hazard of harm mitigated by an alternate design at no substantial increase in price. jury can determine consumer expectations iii. Should design defect be determined by consumer expectations or by a risk/benefit analysis? 1. and not defective design caused the injuries. who can then sue for recovery from the actual manufacturer o. Would it make the product less functional 3. Combined effect of RAD requirement and expert gate keeping. The Restatement also notes that there are some products that have no utility and their manufacturers should be held strictly liable. Jury found for P.In Daubert. Because the trial court did not stress this test. the ordinary consumer expectations test should not be applied. According to the Restatement Third. Cost 2. then the manufacturer has a duty to adopt such design ii. Design Defect i. a defendant can 44 . 3. Whether other manufacturers are using it 4. However. a design is defective if foreseeable risks of harm could have been avoided by the adoption of a reasonable alternative design and the failure to adopt such an alternative design makes the product unreasonably dangerous 1. traditionally. Similar to assumption of the risk policy. When analyzing risk-utility cases. even though the ordinary consumer expectations test was improperly instructed to the jury to apply. iv. warranties may provide for some disclaimer of liability ii. Can sue the last seller. General Motors Corp: P was driving a car manufactured by D and got into an accident. court held failure to build and test prototype of alternative design in support of a decision to rule inadmissible the testimony of an expert about RAD 2. Soule v. Usually easiest to place liability on the party that last sold the defective product. This test makes the factfinder determine whether the inherent risk of the product s design outweighs its benefit. In those complex cases involving expert witness testimony on a complicated issue (like this case). Factors to consider when determining if a reasonable alternative design exists: 1.but in simpler cases. arguing that defective design allowed a wheel to break loose and then jam the car s floorboard upward into P s ankles.i. defendant manufacturer cannot escape strict liability due to the existence of an express disclaimer or waiver. Court noted that this test is proper in some cases a. comparisons among products most only consider comparable products. and Court affirmed P s judgment. Expert testimony. Court noted that in cases involving complex technological or mechanical or any other sort of complicated specialty issues. Thus. b/c the average layperson juror could not fully understand what is reasonably expectable for complex product. D argued that the force of the accident itself. P suffered severe injuries to her ankle and brought suit for defective design against D. the Risk/Benefit Analysis test is proper.

a product may not live up to consumer expectations. Despite rejecting the consumer expectations test for design defects. specific and prominent. Other manufacturers having leg guards shows that a RAD existed (could hint towards design defect). Court noted conflicting testimony on leg guards. but P also made a choice to buy less safe product when a safer product existed b. or how to react if injury occurs 45 . there is still an inquiry into whether they were adequate 2. 2. Must make consumer ware of risk and tell them how to avoid it.:P injured by playmate who detached shield from Voltron and threw it at P s eye which was what the character did on TV iii. so summary judgment was improper. Also. LJN Toys. Warning only works if can be read and understood. which outweighs its benefits. Some courts have held that a product is defective if it fails either the consumer expectations test or the risk/utility test. When considering adequacy. and noting that other manufacturers offered such guards. Camacho v. a. then the product can be considered defective according to new restatement. the Products Liability Restatement revives it for food cases providing that a harm-causing ingredient of the food product constitutes a defect if a reasonable consumer would not expect the food product to contain that ingredient. Court reversed lower courts rulings (granting summary judgment for D b/c of P s assumption of the risk).be held strictly liable for defective design if the design contains dangers. In general 1. Court applied the Crashworthiness doctrine Automobile manufacturer can be held strictly liable for negligence when a design defect or a manufacturing defect enhances (but does not cause) an injury sustained in an automobile crash p. Ex: Lugo v. if P did not read warnings. Defendant must show that the benefits outweigh the dangers b. and expert testimony stated that such guards could have decreased the severity of P s injuries. court did not rely just on consumer expectations test in this case because it resembled assumption of the risk too closely. Honda Motor Co. even though it cannot be designed safer. If a warning is inadequate or lacking altogether. i. P sued for defective design because D failed to affix leg guards on the motorcycle.: P sustained leg injuries after crashing a motorcycle manufactured by the D. Ordinary consumer expectations test allows the factfinder to determine whether the product failed to be as safe as an ordinary consumer would expect it to be when used in its intended or reasonably foreseeable manner (like a screwdriver prying off a paint can lid. Warnings i. Sometimes. Ltd. ii. consider if the warning is clear. Sometimes the questions of defect are affected by the marketing scheme.

Even with this doctrine. Ryobi America Corp.: P purchased a miter saw manufactured by D. and soon afterwards. Brune:no need to warn about drinking large quantity of Tequila in short time because the dangers are apparent event to an 18-year-old and a warning wouldn t have averted the death of the victim. should consider practicality and foreseeability. Learned-Intermediary Doctrine. stating that the warning was both clear and specific enough to establish adequacy 1.Provides defendant manufacturer immunity from defective warning liability in those cases where the defendant s product first must go through a specialist expert before being given to the consumer (A manufactured prescription drug must be administered to the consumer by a physician. 2. scope and means of avoidance 5. When considering adequacy of warning you have to consider totality of circumstances a. So long as defendant warns the learned-intermediary of the product s dangers. GM Corp. just the nature of those injuries.:No duty to warn about the dangers of riding unrestrained in the cargo bed of a pickup truck 9. Hood v. b. Heeding presumption. sometimes a manufacturer can still be held liable for inadequate warning to the consumer 46 . May look at cost-benefit of warning. Warning must plainly describe the nature of the risk in its severity. the intermediary then has to warn the consumer of the pertinent danger. and not to actually keep the saw attached. Costs of warning are minimal. P read the warning and still removed it. but too many may dilute value. Brown Forman Corp v. Maneely v. and saw s warning stated that serious injury would result from removing the plastic blade guard. who is a learned-intermediary).requiring that party responsible for inadequate warning show that the user wouldn t have heeded an adequate warning ii. there would have been a problem establishing causation. Court affirmed summary judgment for the D. Warning must adequately indicate the scope of danger and reasonably communicate the extent or seriousness of harm that could result from its misuse 4. iii. 8. Warnings may be unnecessary if danger is open and obvious a. because he reasoned the safety guard was there to protect his fingers. Ordinarily warnings must reach the ultimate user who is most affected by the product and who is expected to use the instructions or warnings to avoid harm.3. 7. the blade detached itself and cut off P s thumb and severely cut his leg. Defense to products liability claim 1. If P had admitted that he would have taken of the guards no matter what the warning had been. With products aimed at children or that might harm them the appropriate addressee is the parent or guardian 6. D should not have to warn all of the possible injuries that could occur with the use of its product. Courts say warnings have to be reasonable under the circumstances. P sued for inadequate warning.

standard of care. Comparative negligence 47 . you still must consider whether design is defective. Defenses to Products Liability i. Baxter Healthcare Corp. Cannot modify D s behavior when D could not have known about the risks a. Unreasonably dangerous may overlap with assumption of the risk. D satisfied FDA mandates concerning adequate warnings for the nicotine patches. State common law will then be the judge of the warning s adequacy iv. alleging inadequate warnings were given to the P. Court reasoned that merely satisfying the FDA requirements will not necessarily give D immunity from liability. D also has a duty to warn consumers of risks learned about after the product s manufacturing. the defendant s selling of a defective product constitutes duty. Tis responsible for providing a prima facie case. : P sued D manufacturer of silicone breast implants for both negligent design and inadequate warning. Assumption of the risk 1. 4. 6. 5. D offered a defense of the learned-intermediary doctrine. Edwards v. thus striking down its former rule pertaining to strict liability. Vassallo v. Possible defense would be that P assumed risk of injury v. Court ruled for the P. plaintiff still must prove cause-in-fact. Also. injury and address any raised defenses q. as D had warned the doctor. Some courts will avoid using unreasonably dangerous in regards to consumer expectations because it seems to say that ( can design something that is unreasonably dangerous as long as it is obviously dangerous. Assumption of the risk can be an affirmative defense in defective products cases when the defendant can show that the plaintiff assumed a risk that the plaintiff understood and appreciated the nature of such a risk 3. In defective products cases. citing that some exceptions exist for the learned-intermediary doctrine.A product is unreasonably dangerous if it does not meet normal consumer expectations. Basil Pharmaceuticals: P s husband died after smoking while using nicotine patches manufactured by D. as D simply warned that fainting could occur with such use. If a product is obviously dangerous and consumers understand and appreciate that. P sued D. or should be aware of. Camacho case 2. Even if danger is open and obvious. D failed to warn P about risks not known about by the D at the time of its manufacturing. proximate cause. Duty of manufacturer to warn about unknown dangers 1. such as mass immunizations and for those drugs which the FDA also requires a consumer warning (like these nicotine patches and contraceptives). ii. and breach However.2. This is an objective test. the product would not be found to be unreasonably dangerous by the consumer expectation test. Court ruled for the D. New rule is that D has a duty to only warn about those dangers that it is aware of. at the time of its manufacturing of the product. Unreasonably dangerous.

P sued D for strict liability. Also. but awarded large punitive damages for P after not being instructed on comparative fault. Court threw out punitive damages and cut P s compensatory damages in half. establish affirmative defense to the claim (or partial defense). but Sanchez s actions constituted negligence beyond a failure to find possible defects. and injury was caused by a meat grinder manufactured by D. Ryobi. and its safety guard had been removed (common practice). arguing that comparative fault should have been applied in such a case a. because although the D may be immune from design defect because of consumer modification. D argued P was at least partially at fault for his own negligence by failing to follow the safety precautions. the interlocking switch (that would normally not allow for the use of the press without the guard) was shut off. it began to include a warning against such practice on all its newer grinders. as well as for foreseeable misuse (screwdriver) 3. but it did not act retroactively.: P s hand was injured after a safety guard was taken off a printing press manufactured by the D.1.he had a duty to act reasonably and he failed to do so. 48 . Usually. The mid-shift caused the truck to shift into reverse b/c of a defect in the truck s transmission. defendant manufacturer will not be liable for injuries resulting from its product. as the defect was only created by a consumer modification. Missouri state law allowed for immunity to defendant for all products modifications. P was aware of the risk of operating the press without a guard. Ltd. noted that a consumer does not have a duty to seek out possible defects in a product. and not another defect (prove causation) 5. Ct. even if such modifications were foreseeable a. but it was apparently caused by the P placing the truck into mid-shift between park and reverse. Liriano v. if the injury was caused by a modification that occurred after the sale 2. as owner manual ordered (P s father testified that P would have read the manual).: Teenage immigrant P injured his hand while working at a grocery store. Sanchez: P cattle farmer bled to death after being trapped against a gate by a truck manufactured by D. Alabama and other jurisdictions still impose liability on defendant for foreseeable modifications. GM v. Roles P s misuse may play: defeat proof of defect. or establish that the resulting harm was unforeseeable. Meat grinder very old at the time. Hobart Corp. iii. P did not turn off the truck or put on the emergency brake. Consumer modification of product (Misuse) 1. Jones v. the defendant must show that the injury resulted as a result of the modification. D knew of the practice and warned the P s company to reattach the guards. No eye witnesses to the death. but did not seek to fix it out of fear of losing her job. To be immune from liability. When D learned about the commonplace modifications. 4. but Court ruled for D. Court overturned lower court s directed verdict for the D. This was common practice in the industry. as removal of the guards allowed for increased work production. Jury found P to be 50% at fault.

Dailey: Adult P broke her hip after she attempted to sit down in a chair which had been removed by the five year-old D. Statutes may provided some aid to victims of crimes from the state or local treasury. the D alleged that he tried to put back the chair but could not do it quickly enough. Why not argue he was negligent? 1. Usually classified very specifically. Vast majority of valid intentional tort cases founder on the insolvency of the perpetrator. yet he still continues with his actions.intentionally causing someone to have a reasonable fear of imminent bodily harm i. Garret may have been contributorily negligent 2. Victim compensation statutes i. Guilty if you desire injury or if you have conscious knowledge that injury will result.Majority rule that a D s insanity does not establish a defense against liability. Lower court believed the testimony of the D. so long as that modification is foreseeable b. as it stated that battery could still be committed even if the D did not intend to cause harm. Thus. Remanded for new trial a. it just has a duty to warn about them. Standard would be what is reasonable for a child at his age with his experience c. lower court ruled for the D. Threat must be immediate and place plaintiff in the fear of imminent harm 1. Punitive damages available in intentional torts. 35 states have formed a victim compensation program II. Instead. so long as the D knew his actions would subject the P to harm. Also. ASSAULT AND BATTERY a. Intent and insanity. but the Appellate Court remanded for a new trial. and once D learned P was going to sit down on the empty area. ii. Defendant does not have to alter its design as a result of foreseeable modifications. who stated he did not mean to cause P harm. INTENT a. Garrett v. b. c. but it must warn about the less obvious dangers that can result from modification INTENTIONAL TORTS I. Court reasoned the focus should be placed on the foreseeability of risk (modification) and the adequacy of the warning. Must look to surrounding circumstances to determine whether a defendant knew an injury would occur because of his actions i. d. but affirmative defenses allowed. Rule reflects policy decision to impose liability on an insane person rather than leaving the loss on the innocent victim.D was not necessarily immune from an inadequate warning. Some conditional threats will suffice 49 . defendant may not have a duty to warn about open and obvious dangers that would result from modification. No punitive damages for ordinary negligence 3. Defendant can be held liable for failing to warn a consumer about the dangers resulting from a modification. Assault.

Court reasoned (especially after reading P s affidavit) that P was overly sensitive than the reasonable 50 . Huey: Another battery case. Mitchell:litigant spat upon his adversary in the courthouse.batteries committed against sleeping or unconscious victims still constitute battery v. Inc. as well as snarling at the D. it must be of the nature that a reasonable person would find offensive 1.ii. iv. as well as from tort-to-tort (defendant intended to just assault victim. Must have some sort of physical action. the court allowed nominal compensatory and fairly substantial punitive damages. and that he simply touched the P s camera with his finger. words can very rarely alone do not constitute assault b. Upon photographing D. Courts reasoned that D was liable for assault.intentionally afflicting another with physical contact that is harmful or offensive i. P sought second opinion from another mechanic. The angered P forcibly shut the door on the D. P walked into his boss office while the D was meeting with the P s boss. Indirect contact can constitute battery (Defendant child moving the plaintiff s chair. Often a prior course of conduct between parties indicates that they accept contacts that would ordinarily be considered offensive ii. Do not have to be conscious of harmful or offensive contact until after the fact for it to still be battery.: D automobile dealer/repairer told P that her brakes needed work after a D inspection. Picard v. Battery. stating that a reasonable person would not have been offended by such indirect contact. but other jurisdictions allow for imposition of liability when defendant knows that mere conduct will occur iii. Alcorn v. Assault recoveries are for psychic harm iv. P upset and acquires a news station and camera to photograph the D conduct inspections. Threats to property do not constitute assault v. and this repair shop stated that brake work was not needed. however) d. Wishnatsky v. Court ruled for the D. regardless of whose testimony was correct. The force of the door closing propelled P backwards into the hall. Allow for transfer of intent from victim-to-victim with battery (defendant intended to punch someone else. In order to constitute offensive contact. but battery occurred) vi. but punched the victim instead). as it was offensive contact with something so closely related and universally regarded as part of the P s person (difficult line to analyze. for example) 1. Court also ruled that D was guilty of battery. Court found that touching the P s camera constituted battery. Barry Pontiac-Buick. D asserts he simply asked P who gave the P permission to take his picture. District Attorney was sued by P paralegal at the P s office site without knocking or announcing his entrance. Defendant may not be held liable if plaintiff has time or ability to free themselves from the threat or seek help iii. The unavoidable physical jostling that results in a crowded society will not constitute battery c. D Asst. Some jurisdictions will not impose liability unless defendant knew that some harm would occur. as his moving towards the P and pointing at her gave the P reason to fear that she was under threat of imminent bodily harm. P alleged D lunged at her and spun her around.

did not fear for her safety. so long as the suspicion has a reasonable basis e. False Imprisonment cases involving shoplifters i. overpowering physical force. Leo A. Lately. Can occur due to physical barriers (locked door). No duration of time required in order to create false imprisonment. 51 . but the threat must be that the plaintiff would receive immediate harm) iii. Winchell s Donut House: P was called by D managers at her home to come to her place of work. force. Shen v. and asserted legal authority (without actually having such) b. Plaintiff cannot recover for confinement resulting from a less-than-real threat iv. and that plaintiff has no reasonable means of escape (as well as plaintiff not knowing about such reasonable means of escape) v. Damages can be recovered for just mental distress. courts have allowed for false imprisonment recoveries when plaintiff did not realize he was being involuntarily confined at the time.person. for example) or forcing him to go somewhere against his will ii. so long as the plaintiff suffered harm as a result of the false imprisonment viii. the D s donut shop. and plaintiff can also recover just punitive damages ix. Upon arrival. that Ds never order her to remain in the room. as it involved the P s abnormally fragile psyche III. but confinement of plaintiff must be involuntary to impose liability on defendant vii. To impose liability. that Ds did not threaten to fire her unless she answered the questions. Court found for D. False Imprisonment by omission: Example is the failure to stop a car to let someone get out (Court views the duty to act) d. P sued for emotional harm. Court found that there was no issue of fact that was evidence false imprisonment. Lopez v. P merely asserted that she felt compelled to remain in the room in order to protect her reputation. and P was allowed to leave in her first attempt to do so. but does not have to threaten bodily harm. Includes keeping the plaintiff in a bounded area (locked closet. because P s feeling compelled to remain did not satisfy the requirement of involuntary confinement (no evidence that she was restrained against her will) c. or threat of force (such as harming plaintiff or someone else if plaintiff attempts to flee confinement. and Court refuses to apply the Eggshell Plaintiff rule in this intentional court case. FALSE IMPRISONMENT a. various other kinds of duress. because P testified that she never felt threatened. Intentionally restricting the movement of another without any authority to do so i.: Court held confinement within a country did not amount to false imprisonment. Daly Co. threats of immediate physical force. which allows a storekeeper to restrain a suspected shoplifter for a reasonable amount of time (allow for police authorities to arrive) in a reasonable manner. Most states (including Alabama) have provided for a Shopkeeper Statute. P was interrogated by Ds in a locked room about whether she had stolen from the D store. Confinement constituting false imprisonment includes: Actual or apparent physical barriers. Arresting someone without authority can be false imprisonment vi. defendant must have taken a deliberate action to restrict plaintiff s movement (accidentally locking someone in a closet does not constitute false imprisonment).

even though there was no factual evidence to bring P into the case as a possible suspect. D lied to P in order to get a picture of P to use in the molestation case. a coach at a skating rink. to bring an action for expenses and humiliation sustained in the first case i. as P asserted he suffered great emotional distress. including inability to sleep. courts have been more willing to award damages for emotional distress caused by an intentional tort. Courts have permitted intentional infliction of emotional distress claims to lie in cases of racial insults and harassment i. so long as: i. P was dragged into court as a potential suspect for child molesting.) ii. Includes deliberately harmful acts and acts of recklessness (recklessness allowed because it would be near impossible for a plaintiff to recover under negligence. Bozek: court held that government could not bring malicious prosecution action against an individual who had brought an unsuccessful action against the gov IV. it would be difficult to gauge the degree of such harm. Courts still concerned about the potential dangers for allowing recovery for intentional infliction of emotional harm. A more restricted form of this action lies in many states against persons who wrongfully file civil actions 1. The fine line between outrageous conduct and free expression give rise to First Amendment concerns ii. Stroud:an attorney may be held liable for malicious prosecution for continuing to prosecute a lawsuit once it has been discovered to lack probable cause. as well as the perennial flood of litigation b. INTENTIONAL INFLICTION OF EMOTIONAL HARM a.statutory claims 52 . Plaintiff s emotional distress was severe 1. D s employer s client involved in a child molestation case. City of Long Beach v.permits the original D. some courts still want to guard against awarding judgments against merely bad mannered defendants i. Court ruled that there does not have to be physical contact to recover for emotional distress in intentional tort cases. Alabama s Tort of Outrage similar to above four-part criteria c. P thus sued D for intentional infliction of emotional distress. even though the action resulted without any sort of physical contact between the two parties. The defendant had the intent or was reckless in causing the injury ii. after exoneration. (Lack of probable cause in this situation is case that any reasonable attorney would agree is totally and completely without merit. Malicious prosecution. However. Zamos v. Court ruled that the P could recover for such emotional distress. as the plaintiff would have to have incurred some sort of physical contact or been in the zone of danger) ii. Traditionally.f. and D s employer has her contact the P. because it could be difficult to prove that actual emotional harm was incurred by the plaintiff. As a result of the picture taken by the D. Racial harassment. Eldridge: D employed by a law office as an investigator. Womack v. Defendant s conduct was outrageous enough to offend the generally accepted standards of decency and morality (jury question) iii. Plaintiff s emotional distress was caused by the defendant s conduct iv.

clarified standard set forth in Forklift and said a recurring point in opinions is that simple teasing. Courts have long held that employers violate Title VII if employment benefits are conditioned on sexual favors. Under Title VII.: P had to show conduct that is severe or pervasive enough create an objectively hostile or abusive work environment which would reasonably be perceived as hostile or abusive.statutory claims 1. Some states have adopted their own statutes barring sexual harassment in the workplace and providing greater protection than afforded under the federal Title VII. Forklift Systems Inc. Wal-Mart Stores:court addressed issue of vicarious liability for punitive damages under §1981 and found that in this case there was sufficient evidence for jury to find that the supervisor discharged P with malice or reckless indifference to her right to be free of race discrimination by association iii. 2.1. 2. including the frequency and severity of harassment.000 for employers with more than 500 employees. the employer could defend by showing that it had exercised reasonable case to prevent and promptly correct and sexually harassing behavior and that the P employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise. total monetary awards for both compensatory and punitive damages are capped according to the size of the employerreaching a combined maximum of $300. The fact-finder was instructed to weigh all of the circumstances. whether the harassment involves humiliation or physical intimidation and whether it interferes with the employee s work performance. 4. a. iv. offhand comments.so called quid pro quo cases. Harassment in schools 53 . An employer is subject to vicarious liability to a victimized employee for actionable hostile environment created by a supervisor with immediate authority over the employee. Ps may also state a cause of action under Title VII if they complain of sexual harassment and are subjected to retaliation. USSC broadened Title VII standard to permit claims if discriminatory conduct created an abusive working environment. 5. Deffenbaugh-Williams v. And that no reasonable person would believe that a single incident created a hostile work environment. Sex discrimination of same-sex sexual harassment is actionable under Title VII. by contrast §1981 permits unlimited punitive damages. Clark County School District v. 7. Sexual harassment. 3. In 1986. 6. 8. Breeden. Harris v. a. and isolated incidents (unless extremely serious) will not amount to discriminatory changes in terms and conditions of employment. If the supervisor s action did not cause the employee any tangible job consequences.

This commotion got the attention of the nearby police officers.D can argue he had a privilege that allowed him to act the way that he did i. Geysel :Case involving consent as an affirmative defense for intentional tort. gestures. Also. Credit practices i. Privilege.D can argue that P consented to D s action i. D fired a shotgun into the air to ward off the intruders. V. DEFENESES TO INTENTIONAL TORTS a. The elderly D did not hear the P s warning. or conduct c. Monroe County Board of Edu:School system may be sued for damages under Title IX in cases of student-on student harassment as long as the deliberate indifference standard set forth in Gebser is met and the harassment is so severe that it effectively bars the victim s access to an educational opportunity or benefit vii. Court ruled for the D. Hart v. thinking that the P was about to assault him. The Individuals with Disabilities Education Act also provides some protection for disabled students who suffer classmates abuse d. Self-defense or in defense of a third-person 1. as the P s actions were equally as illegal as those of the D. feeling as though the P was a member of the criminal mob.defense: 54 . and D shot and injured the P. an elderly man with poor vision and hearing. Also. court did not want to interfere with a person s ability to waive one s own personal rights 1. finding that the affirmative defense of selfdefense was applicable in this case. but they then gathered in a large mob outside D s store/home and began to pelt him with rocks. approached the frightened D and yelled out that he was a police officer. a majority of courts hold that a person cannot consent to an illegal act 2. Davis v. P sued D for battery. Gebser v. Raymond: D raised the affirmative defense of self-defense for the intentional tort of battery. Contributory negligence and/or comparative fault are not defenses for intentional tort cases b. Court deemed it illogical to punish the D simply because he won the illegal fight. However. Thus. Consent can be manifested by the P s words. The extent to which a creditor may utilize self-help in attempting to collect a debt is debatable. and D killed the Pin the fight (D did not have any sort of malicious intent to kill the P). Case arose after the D. Courvoisier v. was scared by would-be intruders into his store/home (D s neighbor had recently been robbed). the P. Thus. consent not available if the defendant has malicious intent or uses excessive force 3. vi. even though the D was engaged in an illegal activity. Court did establish the criteria in order for a defendant to successfully raise an issue of self. P and D both consented to fight each other in an illegal prizefight. Consent.v. Lago Vista Independent School District: School district may be liable for damages under Title IX only where it has actual notice of and is deliberately indifferent to acts of teacher-student sexual harassment. Court ruled that consent was a valid affirmative defense in such a case. and one of the officers.

when a would-be burglar opened the door of the home. then not required to attempt to flee first) 6. Thus. the defendant can use force in defense of his self. Defendant can only raise self-defense if the threat imposed upon him was immediate 7. Dissent argued that it was a shame to award the burglar and punish the victims of an attempted burglary a. Katko v. Court found for the P. a 20 gauge would fire a live shot towards his legs. Briney: D owned a vacant.a. as the P did not have to be preparing to assault the D for the D to argue self-defense. Court felt that the D in this case met the requirement. even if the defendant is under the threat of death or serious bodily injury(exemption occurs if the defendant is threatened in his home. such as farm equipment and antiques. only that the D sincerely and reasonably believed that the P was about to assault him 2. Can use the same level of force in defense of third persons that the third person would have a right to exert under the third person s circumstances 8. Even if the defendant has an opportunity to flee from the harmful threat. abandoned farmhouse where he stored some of his property. Defense of one s property 1. he may use deadly force in defense of his self if the defendant is under the threat of immediate death or serious bodily injury 5. D irritated about the high level of break-ins into this home. the Court did not strike down the awarding of punitive damages for the P . and thus sued the D for an intentional tort. Court noted that such deadly force can only be used in the defense of one s life or to prevent serious bodily injury . And that the level of force used by the defendant was reasonable i. However. he can still not use deadly force in defense of property 55 . so he rigged a spring-gun in the home. Majority rule is that even if the defendant has the opportunity to flee. Even if defendant provides a warning. That defendant s use of such force was reasonable under the circumstances c. he must attempt to flee before using deadly force in defense of his self. ruling that the use of deadly force (such as the implementation of a spring-gun) may not be used in defense of one s property. and because the D did not properly raise the issue of punitive damages at trial. Use of deadly force to defend one s self is only allowed if under the threat of immediate death or serious bodily injury 3. Defendant must have the sincere belief that the level of force he used in his defense was warranted given the circumstances b. D had boarded up the windows and placed a No Trespassing sign somewhat near the vacant home. Must distinguish between defense and revenge ii. Minority rule states that if the defendant has the opportunity to flee. D had to pay compensatory damages to the P. and he was subsequently severely injured by the spring-gun. so long as that force is not deadly 4. No one lived in or near the house. P burglar attempted to break into the house.

Privilege of Necessity 1. Only reasonable means of defenses are allowed to defend one s property (such as a mousetrap) iii. D is liable to the P for compensatory damages (so D has to pay for dock repairs). COMPENSATORY DAMAGES a. or public necessity for that matter) 2. Non-pecuniary damages like pain and suffering are harder to calculate. b. Public necessity means no liability (want people to not worry about acting for the good of the overall public) DAMAGES I. Compensatory damages designed to return plaintiff to whole. the P s dock suffered a great deal of damage. Los Angeles Transit Lines: Case deals with compensatory damages. and if the plaintiff caused the damage 3. including pain and suffering damages. Public necessity results when the government destroys something for the benefit of the general public. such as medical bills and loss of income. D crew then secured the boat back to the dock with metal wire tie-downs. Pecuniary damages are easiest to calculate.b. leaving her foot and ankle permanently mangled. Exceptions that will release defendant from compensatory damages liability include Acts of God. P attempted to board one of the D bus line s buses. Privilege of Public Necessity and Privilege of Private Necessity (private necessity means that it is necessary to injure property of another to prevent injury to one s self. the plaintiff s estimated future injury costs must also be factored into the judgment. P was severely injured as a result. making it difficult for her to walk long distances. under private necessity. and the boat s weak tie lines broke. Since damages are awarded only once (single judgment and single pay-out for the plaintiff). Court ruled that the D s retying went that the damage was not caused by an Act of God a. D should not be liable for punitive damage. Legal fees generally not recoverable under American system. trapped the P. the bus doors closed on her. As a result of retying the boat back to the dock. a torrential hurricane-like storm descended upon the dock. defendant cannot refuse such private necessity. Include damages for actual costs incurred by the plaintiff. thus meaning that the D wasn t liable for any punitive damages resulting from his intentional action of retying his boat to the P s dock. Because D was not negligent or reckless in his retying. to prevent the boat from being washed away back into the main body of water. and making it difficult for her to sleep. Vincent v. However. plus can also include damages for pain and suffering incurred by the plaintiff. even when such retying resulted in injuries to the P s dock. and drug her down the street. Jury awarded compensatory damages for actual costs to the P (past and 56 . Court ruled that the theory of private necessity should apply. Lake Erie Transportation Company: Case of Private Necessity. D steamboat owner docked his steamboat on the P s dock While docked. In doing so. Seffert v. and thus being subsequently sunk in the storm. and because he did not have another option.

and loss of enjoyment of life damages. Pain and suffering damages . lost income. although nothing other than monetary recovery seems to have sufficed as an answer c.future medical bills. as well as substantial damages for P s pain and suffering. Easiest category to assess and calculate for compensatory damages. as a jury s awarding of compensatory damages should only be overturned if they shocked the general consciousness of the appellate court and inferred that the verdict was awarded out of passion and/or prejudice i. etc. McDougald v. Also. and ordered a new trial on the award of non-pecuniary damages.includes past medical and drug bills. Past pecuniary losses. Awareness of Loss i. Court reasoned that the trial court s instructions were erroneous. Garber: P patient sued D surgeon and anesthesiologist for pecuniary losses and pain and suffering damages (resulting from loss of enjoyment of life).Must calculate plaintiff future medical/drug bills. take into account inflation weighed against plaintiff s ability to invest recovery Also.). Future pecuniary losses. have to try and calculate plaintiff s potential loss of future income. Court struck down jury s award of loss of enjoyment of life damages to the P. after D s medical malpractice in surgery of P left the P deprived of oxygen. Such awards are non-taxable ii.considered non-pecuniary damages. must take into account plaintiff s future life expectancy iii. as court ruled that damages for loss of enjoyment of life were improper where the plaintiff does not have any cognitive awareness of his surroundings (thus a comatose plaintiff). as well as lost income. the court noted that loss of enjoyment of life damages should not be considered separate from pain and suffering damages 57 . Such oxygen deprivation rendered the P comatose. Jury returned damages award for pecuniary losses. Court ruled that all of the P s damages should stand. Courts are divided as to what the appropriate response on this issue is.

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