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NEGLIGENCE

PRIMA FACIE CASE FOR NEGLIGENCE

For a ∏ to make its prima facie case in a negligence action, the ∏ must
establish duty, breach, causation and harm.

I. DUTY

A. FORESEEABLE PLAINTIFF

Rule – foreseeable plaintiff – Palsgraf – must be w/in zone of danger created


by ∆ ’s negligent act evaluated by time and space – in NY goes in Duty.

1. Palsgraf -- weight falls on lady’s head after explosion when package is knocked
from passenger’s hand by negligent pushing onto train. Because ∏ is not in the
zone of danger created by the ∆ ’s negligent act of pushing, she cannot recover.
2. Firman -- car accident. Negligent driving injured a 3 yr old boy, 7 years later
someone was shot by injured person. Analysis: Is this a foreseeable ∏? within
zone of danger created by ∆ ’s negligence? No. Time – 7 yrs -- also distance –
how close was he to this car crash? Distance wise makes no sense. nowhere near in
space or time therefore no duty owed

B. GENERAL DUTY OF CARE

Generally, the duty of care is that of a reasonably prudent person in same or


similar circumstances.

1. Stewart v. Mott – The standard is the same but the degree of danger comes in as
a relevant fact under same or similar circumstances. If you’re the ∆ you argue
that “ordinary care” could not have prevented this because it’s an extraordinary
situation.
2. Wilson v. Sibert -- sudden emergency doctrine – The reasonableness standard is
the same, but the fact that an emergency exists is relevant to “same or similar
circumstances.” An emergency is imminent danger to himself or others.

C. DUTY OF CARE FOR PROFESSIONALS

The standard of care for professionals is the care that a reasonably prudent
person in that same profession and specialty would exercise under the same
or similar circumstances. This is a national standard, and the duty of care
is established through expert testimony. Resources available to the
professional fall under the same or similar circumstances analysis.
Generally speaking, custom among professionals sets the standard of
care.
Factors for determining whether someone is a professional (not
dispositive):
• Licensure -- reflects special knowledge
• Large body of expertise -- triggers requirement for expert testimony

1. Walski v. Tiesenga – Licensed professionals pose a greater risk of harm. Juries


need expert testimony to determine whether a professional acted in a sub-standard
manner or not. The plaintiff has the burden of establishing the standard and
proving that the defendant departed from it.

D. DUTY OF CARE FOR MINORS

The standard of care applicable to minors is that of a reasonably prudent


minor of the same age, intelligence, experience, and maturity. Two
exceptions apply to this standard of care:

1) The inherently dangerous activity rule -- a majority of jurisdictions


hold minors to the standard of a reasonably prudent adult under same
or similar circumstances when the minor is engaged in an inherently
dangerous activity.
2) The adult activity rule – a minority of jurisdictions hold minors to
the standard of care that a reasonably prudent adult would exercise
under the same or similar circumstances when the minor is engaged
in an “adult activity.”

1. Robinson v. Lindsay -- The standard is lower EXCEPT when inherently


dangerous activities – to prevent parents from allowing their children to engage in
unreasonably risky activity. What about the golf cart case? Adult activity
standard – everybody golfs.

E. DUTY OF CARE FOR PEOPLE WITH PHYSICAL DISABILITIES

The applicable standard of care for people with physical infirmities is that of
a reasonably prudent person with the same infirmity under same or similar
circumstances.

1. Shepard v. Gardner – the standard is such care as an ordinarily prudent person with
a like infirmity would have exercised under the same or similar circumstances. If a
reasonably prudent blind person would have a cane or a dog and she didn’t, then
she would be negligent.

F. DUTY OF CARE FOR THE MENTALLY IMPAIRED

The applicable standard of care for a person with a mental impairment is that
of a reasonably prudent person without a mental impairment under same or
similar circumstances.

1. Creasy v. Rusk -- What about mental disabilities? Patient kicks his nurse and
nurse sues the patient. What duty of care applies? If alzheimer’s were a physical
disability, the standard would be the same as another person w/ alzheimer’s. No
duty here.

G. DUTY OF CARE FOR PEOPLE WITH SPECIAL ABILITIES

The applicable standard of care for a person with a special ability is that care
which a reasonably prudent person with the same special ability would
exercise under the same or similar circumstances.

1. Hill v. Sparks -- What about superior mental abilities? Earthmover case. The sister
is crushed and the husband sues her brother. If the actor has in fact more than the
minimum of these qualities, he is required to exercise the superior qualities that
he has in a manner reasonable under the circumstances.

H. DUTY OF CARE FOR INTOXICATED PEOPLE

The applicable standard of care for a person who is intoxicated is that of a


reasonably prudent sober person under the same or similar circumstances.

1. What about alcoholism? There is no such thing as whether the law recognizes
something as a disability or not. You still want to discourage alcoholism – go get
treatment.

I. NO DUTY TO RESCUE – this is not an affirmative defense. It negates


the element of duty in a prima facie negligence case.

In the United States -- there’s no duty to rescue.

Exceptions:

1. Knows or has reason to know that you caused the harm –even
innocently – duty to prevent further harm
2. Voluntarily undertake – duty to do so non-negligently – Once you
voluntarily undertake to care for someone is liable for bodily harm
resulting from failing to do so with due care (reasonably)
3. Statute or ordinance imposes a duty
4. Special relationship

1. Yania v. Bigan -- Strip mining “I dare you” case. Watches him drown. Two acts
of negligence: 1) Urged him to jump 2) Didn’t rescue him when in the water.
Court says 1) he was a competent adult -- what’s the underlying premise? It’s his
own fault he jumped. Court says 2) no duty to rescue – maybe morally, but there’s
no legal duty to rescue.
2. Wakulich v. Mraz – once you begin a rescue you have a duty to continue in a non-
negligent manner.
3. Farwell v. Keaton -- The law recognizes the relationship as giving rise to a
relationship. Parent/child, etc. This is probably the outer edge of the law since
they were buddies.
II. BREACH

A. NEGLIGENCE PER SE

Generally, the duty of care is that of a reasonably prudent person in same or


similar circumstances. A statute substitutes for the common-law duty of
care in a negligence case and proof of a violation of the statute creates a
presumption of negligence/breach if:

1. the statute establshies a specific standard of conduct that applies to


the facts, and
2. the plaintiff belongs to the class of persons intended to be protected
by the statute, and
3. the plaintiff suffered the type of injury intended to be prevented by
the statute.

Exceptions:

• the violation is reasonable because of the actor’s incapacity


• he neither knows or should know of the occasion for
compliance
• he is unable after reasonable diligence or care to comply
• he is confronted by an emergency not due to his own
misconduct
• compliance would involve a greater risk of harm to the actor
or to others

Minority rule -- meeting the elements of negligence per se is only evidence


of negligence (New Jersey, Massachusetts). Standard is reasonably prudent
person under same or similar circumstances.

1. Wright v. Brown Dog bite case w/ quarantine -- dog prematurely released and bit
someone. Element 2 is not met because the statute was intended to protect
people from rabies and no mention of rabies here. 3 is probably met because bit
by dog; rabies transmitted by dog bites.

B. CARROLL TOWING FORMULATION – the general rule for


establishing breach in a prima facie negligence case.
If the burden on the ∆ of taking adequate precautions is less than the
product of the probability that an injury will occur and the gravity of
the resulting injury if it does occur, the ∆ is negligent.

Rule – The role of evidence of custom -- does not set the standard, nor is it
dispositive on the issue of reasonableness, but it can be used as evidence that
the ∆ either breached the reasonably prudent person standard or did not.

Examples

$50,000 to prevent harm < 2 times per year X $1000 loss per time – no
negligence

$50,00 to prevent harm > 10 times per year X $10,000 loss per time –
negligence

1. U.S. v. Carroll Towing -- When it sinks, it’s SAD. Barge broke away from its
mooring during a time of bad weather. The barge runs into the Anna C. She
careened and lost her flour. The Anna C sank. : ( The issue is whether the
company was negligent for not having a bargee on board, who could have
prevented this.
1) Probability that she will break away
2) Gravity of the resulting injury if she does
3) The burden of adequate precautions
2. Indiana Consolidated v. Mathew -- Garage burns down. Insurance co. sues brother
by subrogation -- stand in the shoes of the payee. What are the alleged acts of
negligence?
• filling the gas tank -- court says he was careful enough
• starting the mower in the garage -- that’s what garages are for
• failing to push the mower out of the garage -- IT WAS ON FIRE,
DOY
If it’s cheaper for you to prevent a harm and you don’t do it, you’re
unreasonable.

C. RES IPSA LOQUITOR – applies when ∏ suffers a legally compensable


harm but cannot prove breach because no direct evidence.

Res Ipsa Loquitor

1. There is no direct evidence of the conduct on the part of the


defendant that breached the standard of care and caused the injury.
2. The accident that produced the injury was one that does not
ordinarily occur unless someone was negligent;
3. The instrumentality or agent that caused the accident was under the
exlusive control of the defendant;
a. Exclusive control sub-rule -- right or power to control and
opportunity to do so. Flexible. In New York where the
instrumentality is accessible to the public, New York is
unlikely to find that the element of exclusive control is met.
4. Contributory Negligence jurisdictions – contributory negligence by
∏ or 3rd parties defeats res ipsa. In comparative negligence
jurisdictions, you just have to exclude third parties.

If satisfied, creates inference of breach sufficient to satisfy plaintiff’s


burden on prima facie case.

Multiple ∆ s -- Generally, res ipsa loquitor cannot be invoked where there


are multiple defendants.

Exceptions:

• An exception exists when two defendants had consecutive control


over plaintiff, and either one could have caused plaintiff’s
injuries, and both are named in the complaint, the complaint is
sufficient for pleading purposes to raise the inference of negligence
under the doctrine of res ipsa loquitor.
• Where a plaintiff receives unusual injuries while unconscious and
in the course of medical treatment, all those defendants who had
any control over his body or the instrumentalities which might have
caused the injuries may properly be called upon to meet the inference
of negligence by giving an explanation of their conduct.

1. Byrne v. Boadle -- classic res ipsa case -- All the plaintiff knows is that he was hit
with a barrel of flour. The fact that the flour barrel hit the guy establishes that the
flour store was negligent. Where the shit else is a flour barrel going to come from?
No one’s going to say “I DROPPED THE FLOUR ON THE DUDE! IT WAS
MEEEEEEEEEEE!!!” The doctrine of NO DUH. Without negligence, the
accident could not have happened. Ordinarily, barrels are not flying out of
windows/doors.
2. Collins v. Superior Air-ground Ambulance – Exception #1 consecutive control --
Dehydration and broken leg -- there is no direct evidence of how the woman got
hurt. 2 defendants, consecutive control. This is one exception to the rule that res
ipsa loquitor doesn’t apply to multiple defendants.
3. Ybarra – Exception #2 weird injury during medical treatment -- Shoulder pain,
paralysis resulting from appendectomy. #3 is the problem -- why does the court let
res ipsa loquitor apply? There is no likelihood of the doctors ratting on each
other, so this is exception #2.

III. ACTUAL CAUSE

Rule -- in order to be held liable for negligence a defendant must be the


factual cause of the plaintiff’s injury.

A. THE BUT-FOR TEST


Generally, the ∆ is the factual cause of a ∏’s injury if but-for the ∆ ’s
negligent act, the injury would not have occurred. In some situations, the
but-for test works for multiple defendents who cause discrete injuries.
However, several exceptions apply for situations in which but-for does not
work.

Example

What happens if there’s more than one ∆ ? Car accident w/ broken leg and
anesthesia problems. Sues the anesthesiologist and the other driver. Each
for his own portion of the injury.

• But-for the ∆ running the red light, the plaintiff would not be in
a vegetative state.
• But-for the ∆ 2 screwing up the anesthesia, the plaintiff would
not be in a vegetative state.
• How do you assess breach for ∆ 1? Carroll Towing (violation of
statute if there is one)
• How do you assess breach for ∆ 2? Professional standard.

B. SUBSTANTIAL FACTOR TEST

• Where two or more successive or concurrent causes each of which


in themselves would be sufficient to cause the entire harm, and
• A single, indivisible injury occurs
• Then each ∆ is the factual cause of the injury if their conduct was a
substantial factor in causing it.

1. Landers v. East Texas Salt Water -- 2 defendants, many, many dead fish. What
happens if you apply but-for to the defendants? But-for ∆ 1 dumping salt water,
would the fish have lived? Well, no, the injury would have been caused by the
other defendant and vice-versa. Why should a court be open to constructing a new
rule here? Because both defendants breached and should be deterred, and the
plaintiff should not be barred from compensation by the failure of the but-for test.

C. ALTERNATIVE LIABILITY TEST

Where you have:

1. Multiple ∆ s all of whom are before the court


2. Both at fault
3. Injury caused by only one of them but you can’t tell who did it
4. Satisfies factual causation against all ∆ s and burden shifts to ∆ s
to disprove that they caused the injury
1. Summers v. Tice -- Hunting accident -- all using the same ammo. Now causation --
but-for doesn’t work and now the blind guy goes uncompensated. Multiple parties
were all negligent toward the plaintiff – in terms of deterrence, this makes sense.
You can’t tell who committed the act, injury caused by one ∆ .

D. MARKET SHARE TEST

Where you have:

• Multiple (usually many, many) ∆ ’s


• All were negligent in marketing this product
• Identical products that caused the type of injury ∏ suffered
• ∏ can’t prove which ∆ caused her specific injury

Factual causation is satisfied and ∆ ’s are serverally liable for their portion
of the market at the time, and ∆ ’s cannot exculpate themselves by
disproving they caused the injury.

Market Share Liability Example: Each ∆ liable for their market share
at the time the harm occurred.
10 ∆ at the time – Market share at time of breach / damages
5 left in market owed where damages = $100,000
∆1 10% -- $10,000
∆2 03% -- $3,000
∆3 25% -- $25,000
∆4 10% -- $10,000
∆5 10% -- $10,000

∏ collects a total of $58,000 because market share is only several


liability.

1. Hymowitz v. Eli Lily Co. -- ∏ bringing claim for injuries suffered because of drug
taken during pregnancy to prevent miscarriage -- causes gynecological cancers --
drug manufacturers dropped in and out of the market over the years. Impediments
to actual causation:
• These plaintiffs can’t tell exactly who manufactured these particular pills
because all of the pills looked alike.
• The makers entered and left the market at different times
• Some of the makers exist now and some don’t
If the illnesses would have manifested soon, but-for would be easier to prove. We
need another test. This is for mass torts. Large numbers of ∆ s.

E. LOST CHANCE OF SURVIVAL TEST

Lost chance of survival


• The ∆ was negligent in failing to diagnose a fatal condition
in a timely way
• Which deprived the ∏ of a substantial lost chance of
surviving the illness
• The ∏ can satisfy the element of factual causation and
• The doctor is liable only for the percentage of the
plaintiff’s total damages that s/he caused.

1. Herskovits v. Group Health Cooperative -- Decedent was misdiagnosed w/ lung


cancer -- told to take cough syrup. Find out 6 months later he actually has lung
cancer. Undisputed that the ∏’s chance of survival would be diminished. If
diagnosed timely -- 39% chance of survival. At the time that it was diagnosed --
25% chance of survival. Even but for the negligence of the doctor, he still could
have died. So but-for doesn’t work. The difference of chance of survival is 14%.
The court applies the “loss of chance” doctrine.

IV. PROXIMATE CAUSE – the ∆ is liable for all foreseeable harm resulting
from his negligent act.

A. UNEXPECTED TYPE OF HARM

If the type of harm was a foreseeable result of the ∆ ’s negligent act, ∆ is


liable for all resulting harm.

1. Speeding trolley hit by falling tree. Proximate -- is the injury w/in the scope of the
risk? No. You wouldn’t expect a tree to fall on your head for no reason. A
foreseeable consequence of speeding is not being able to stop in time to avoid a
crash, for example.

B. UNEXPECTED MANNER OF HARM

Superceding intervening acts cut off the chain of proximate cause.


Foreseeable intervening acts do not. Superceding intervening acts must be
unforeseeable and either:

• Gross negligence
• A serious criminal act
• Acts of nature
• Intentional tort

1. McLaughlin v. Mine Safety Appliances -- But-for the ∆ ’s failure to put warning


on block would the person have been burned? No. Proximate -- type of harm?
Were burns as a consequence of no warning within the foreseeable scope of risk?
Yes. Intervening act of fireman -- Gross negligence -- he actually knew and stood
there while the nurse was applying the blocks.

C. UNEXPECTED EXTENT OF HARM – an exception to the foreseeable


consequences of ∆ ’s negligent act.

Eggshell plaintiff rule -- the ∆ must accept his ∏ in the condition he finds
him and is liable for the entire injury. Where tortfeasor whose act,
superimposed upon a prior latent condition results in an injury further than
the extent one might expect, may be liable in damages for the full disability.

1. Negligent ∆ s should not get the benefit of being able to say “if he were stronger,
he wouldn’t have died.” Also precipitate schizophrenia/mental illness – juries
are also increasingly saying yes to suicide if it’s foreseeable.
V. HARM

A. LEGALLY COMPENSABLE HARM

In order for a ∆ to be held liable for negligence in tort, the ∏ must suffer a
legally compensable harm. Personal injuries are always legally
compensable.

B. JOINT AND SEVERAL LIABILITY

Joint and several liability Where multiple ∆ s caused an indivisible injury,


they are always jointly and severally liable, meaning ∏ may recover from
any defendant or both. Here’s when it’s always true:

• They are acting in concert,


• If it’s vicarious liability,
• If substantial factor applies,
• If alternative liability applies,
• It’s also true for but-for where the injury is indivisible.

C. SEVERAL LIABILITY

This refers to when you’re only liable for your share of an injury. I.E. I
break your arm and someone else breaks your leg -- I’m only liable for the
arm.

D. COMPENSATORY DAMAGES

The elements of compensatory damages are that a ∏ may recover for


pecuniary and non-pecuniary damages, past and future.

1) Pecuniary -- economic loss past and future

a. Medical expenses -- lifelong


b. Lost wages – If the Neg of ∆ deprived the ∏ of capacity to
earn more money, that’s part of the future pecuniary lost
wages that can be recovered.
c. Any other identifiable economic loss

2) Non-pecuniary – past and future non-economic damages (pain


and suffering) – You need consciousness to collect
pain/suffering/loss of enjoyment in New York.

a. Physical pain
b. Psychological distress

3) Parasitic damages

a. TORT by ∆  Physical harm to ∏  Emotional harm ∏ 


Damages pain and suffering = The plaintiff can always
recover here because there’s physical harm.
b. TORT by ∆  Emotional harm to ∏  Damages? Totally
depends on jurisdiction.

E. PUNITIVE DAMAGES

Punitive damages may be awarded where the ∆ ’s conduct is wanton and


willful, reckless, or malicious.

F. DUTY TO MITIGATE

∏ has a duty to take reasonable steps to mitigate damages – to seek


appropriate treatment to effect a cure or healing and to prevent aggravation.
Failure to mitigate precludes recovery of any additional damages cause by
aggravation of the injury.

DEFENSES TO NEGLIGENCE

I. COMPARATIVE / CONTRIBUTORY NEGLIGENCE

Comparative negligence – in these jurisdictions fault is apportioned by a)


the nature of each person’s risk b) the causal link between the negligent acts
and the injury

Two types:

1. Pure comparative negligence -- the plaintiff’s damages are


reduced by the amount proportionate to his or her fault in causing
the injury.
2. Modified comparative negligence -- depending on the controlling
statute, allows plaintiffs to recover in the proportion of their injury
for which they are not at fault, provided the ∏ is less than 51%. If
the ∏’s negligence is 51% or greater, recovery is barred
completely

Exceptions:

1. Rescuer doctrine – holds that one who sees a person in imminent


danger caused by the negligence of another cannot be charged with
contributory negligence (unless the rescuer acts negligently).
2. Criminal Activity rule -- When the plaintiff’s injury is a direct
result of his knowing and intentional participation in a criminal
act he cannot seek compensation for the loss, if the criminal act is
judged to be so serious an offense as to warrant denial of
recovery.
3. Safety – When the ∆ undertakes to protect the ∏ from her own
fault, or when the law imposes such a duty, the entire responsibility
for care by definition falls upon the ∆ and the ∏’s fault cannot be
held against her.

Contributory Negligence – Minority rule (by far) – In the five


jurisdictions where contributory negligence is the rule, any negligence at all
on the part of the ∏ is a complete bar to recovery. ∏’s negligence is
assessed by a full analysis of duty, breach, causation and harm.

1. Last clear chance (the fettered ass scenario) -- only applies in


contributory negligence jurisdictions -- eliminates the
availability of contributory negligence as a defense where ∆ could
prevent the accident altogether. Permits and requires that ∆ s who
have an ability to avoid an injury are required to.
• Plaintiff has to be helpless and unable to avoid the injury
themselves
• ∆ could or should have discovered the ∏’s danger.
2. Discovered Peril rule -- same as last clear chance except the ∆
actually did know of the peril, not only should have known.

Examples

Contributory jurisdiction – damages = $100,000. ∆ fault = 90%. ∏ fault


= 10%. ∏ does not recover. At all.

Pure comparative jurisdiction – damages = $100,000. ∆ fault = 75%. ∏


fault = 25%. ∏ recovers $75,000.

Modified comparative jurisdiction – damages = $100,000. ∆ fault = 49%.


∏ fault = 51%. ∏ does not recover. At all.

1. Butterfield v. Forrester -- Pole across road -- could get by (just not where the pole was
(doy)). ∏ sues for negligence for leaving obstruction in road. Is ∏ w/in scope of
danger of pole in street? Yes. Plaintiff could have gone around. Traditional rule:
complete bar.
2. Wassel v. Adams -- Motel rape case. Jury allocates fault: ∏ 97%, ∆ 3%. Reasonably
prudent person standard brings biases of jury.
3. Bexiga v. Havir Manufacturing -- Power punch press case where hand is crushed.
Sues ∆ for making a machine with no safety devices.

II. EXPRESS ASSUMPTION OF THE RISK – negates the duty element of a


prima facie negligence case. This is a complete bar to ∏’s recovery when
established.

Rule – When a plaintiff expressly and voluntarily consents to exposure to


known risks, he or she cannot later sue for injuries resulting from that
exposure.

Exception -- Waivers against public policy -- If an exculpatory agreement


violates public policy, courts will not enforce them. Assumption of the risk
is about consent -- if you really needed medical care, for example, you didn’t
assume the risk voluntarily.

Factors for whether K violates Public Polic:y

1. This is determined by how critical it is to a person and how critical it


is to society.
2. Disparities in bargaining power -- hospital v. sick (terminal) patient
3. Whether it’s an adhesion K -- take it or leave it. Was there an ability
to negotiate over the terms.

1. Tunkl v. Regents of U of Cal. – Rare leukemia case where ∏ signed exculpation


agreement. The one like Tunkl are valid and are enforced -- there are activities w/
inherent risk with social values. That’s one reason. Flipside -- If we really want people
to do things safely, we shouldn’t let them agree in advance to be negligent.
2. Moore v. Hartley Motors – ATV rider safety course participant hits a covered up rock
and is thrown from vehicle. Owners assert assumption of risk – express consent on
release form. What does it exculpate the ∆ from. Contractually, what did the plaintiff
agree to release the ∆ from?

III. PRIMARY IMPLIED ASSUMPTION OF THE RISK – negates the duty


element of a prima facie negligence claim – Primary AOR is a complete bar
to recovery if proven.

Implied Primary AOR  No duty  Complete Bar “it’s all about


consent, baby.”
1. Voluntary participation in sport/rec activity
2. Commonly appreciated risks -- normally associated with the sport
or activity (obvious)
3. That are inherent in and arise out of nature of the sport/rec. activity

Sports rule violations -- if it’s a known danger, no recovery. However,


willful, wanton and reckless violations are actionable.

1. Turcotte v. Fell -- Paralyzed jockey sues other jockey for negligence -- violating “foul
riding” rule. Alleges the rule violation. ∆ asserts assumption of risks -- court says that
assumption of risk is no longer a complete defense. It’s framed in terms of duty.
2. Waterskiing case -- known risks – Falling – Drowning -- unknown risks – Rope
breaking.

IV. SECONDARY ASSUMPTION OF THE RISK – an affirmative defense


that reduces ∆ ’s liability if proven – secondary AOR is a partial bar to
recovery in NY. In contributory negligence jurisdictions, it is a complete bar.

Implied secondary assumption of the risk – New York

1. ∏ voluntarily engages in an activity involving a risk of harm, and;


2. ∏ knows and fully understands the risk of that particular harm or;
3. Should have known and fully understood the risk of harm

If met, the ∏ ’s damages must be reduced by the extent to which the ∏ ’s


damages were caused by his/her own conduct.

If the elements are met, this is a complete bar in contributory negligence


jurisdictions. In a comparative jurisdiction it is weighed.

1. Crews v. Hollenback – The guy who works for the gas company and gets exploded. He
sues the guy who negligently hit the gas line. Does contributory negligence apply? No.
The burden on ∏ is “don’t go.” Likelihood and gravity – no breach. Secondary
assumption of risk 1) had knowledge of the risk of danger 2) appreciated the risk 3)
voluntarily exposed himself or herself to that risk. Even though they say it’s objective,
they don’t embark on an analysis of pure objective. They look at his deposition. Pure
objective/Pure subjective. Someone in his situation -- would this type of person know
and appreciate the risk? (yes). Can be proven by circumstantial evidence.

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS


Why it’s distinguished from regular negligence: everything until now
deals with physical injuries. The law is worried about FAKARS!!!! Tort
law reflects a long-standing historical suspicion against mental illness and
emotional injuries. We’re going over various jurisdictional restrictions on
emotional distress claims. No physical injury.

Rules vary by jurisdiction – Generally, fright alone is not enough.


• Physical impact -- traditional rule -- ∏ must have physical
impact with cause of emotional harm to recover. Contact
must be with the ∏ ’s body.
• Physical manifestation – New York rule – Manifestation of
objective physical symptoms allows plaintiff to recover.
Vomiting, rash, sweating, NOT nightmares.
• Objectively verifiable psychiatric/medical diagnosis

Rules for bystanders – also vary by jurisdiction

Zone of danger rule – majority rule for bystanders – The essential


elements for zone of danger test

a. Zone of physical danger -- you have to be there


yourself (could suffer harm given the way the accident
happened)
b. Suffer imminent apprehension of physical harm –
immediate fear for your own safety – not someone
else’s
c. Expressed at or near the time of the danger

Foreseeability – The real California rule for bystanders now

a. Closely related to the injury victim by blood or


marriage … relatives residing the same household, or
parents siblings, children and grandchildren
b. Present at the scene of the injury producing event at
the time it occurs and is then aware that it is causing
injury to the victim
c. Suffers serious emotional distress – a reaction beyond
that which would be anticipated in a disinterested
witness and which is not an abnormal response to the
circumstances.
Exceptions:

a. Mishandling dead bodies


b. Erroneous death messages
c. Fear of developing a fatal illness –it has to be a
real route of transmission of HIV. Contact has to
have actually been with HIV. Most jurisdictions
would permit damages for fear of developing the
disease.
d. Toxic torts – factory releasing toxin and exposing
everyone – stems from knowledge that client more
likely than not will develop cancer.
INTENTIONAL TORTS
All Intentional Torts are distinct causes of action. Generally, to establish a
prima facie case for intentional torts, the ∏ must prove a voluntary act, intent,
and causation. Minors and insane people are liable for their intentional torts, but
intelligence, maturity, capacity, etc. can negate their ability to form specific
intent. Must negate both conscious purpose and knowledge to substantial
certainty.

I. TRANSFERRED INTENT

Where a ∆ :

1. Intends to commit a tort against one person but instead commits a


different tort against that person or;
2. Commits the same tort against a different person.

Examples
1. ∆ intends to punch ∏ but misses and only scares ∏
2. ∆ intends to punch ∏ 1. ∏ 1 ducks and ∆ punches ∏ 2.

1. Hall v. McBryde -- gun case w/ maybe people who were in a gang. Prolly the “Bloods.”
He doesn’t have a conscious purpose to inflict a harmful or offensive contact on the
plaintiff. Conscious purpose to commit one tort and you commit another.

II. BATTERY

1. Voluntary Act – conscious bodily movement


2. Intent

 Conscious purpose or;


 Knowledge to a substantial certainty

3. To cause harmful or offensive contact

 Offensive contact is offensive to a reasonable sense of personal


dignity. Where the ∆ has actual knowledge there’s no consent,
that’s an offensive contact.
 Harmful – causes a physical harm.

4. Harmful or offensive contact results -- Extended personality rule --


you don’t have to actually make offensive contact with the “body” of
another -- something they’re holding, touching, etc, such that they would
be offended.

1. Van Camp v. McAFoos -- ∏ failed to state a claim. Didn’t plead that the child intended
to strike her. Unless the ∏ can prove SOME kind of fault, tort law doesn’t let her
recover.
2. Cohen v. Smith -- Person who didn’t want to be touched naked during cesarean for
religious reasons. Got touched by nurse. . Offensive. Beyond the scope of consent.
3. Leichtman v. WLW Jacor Communications, Inc. – Smoke is a particulate matter
that made contact with the ∏ . Physical contact is an absolute requirement of battery.
4. Polmatier v. Russ -- Beat dude with beer bottle. He was able to make a “crazy choice.”
Was this his conscious purpose or did he know that a substantial certainty that harmful
… would occur. He went and got ammo and a gun from two different places.

III. ASSAULT

To establish a prima facie case for assault the following elements must
be proved:

1. A voluntary act – conscious bodily movement


2. By ∆ creating reasonable apprehension of imminent harmful or
offensive contact.
3. Intent

 Knowledge to a substantial certainty or;


 Conscious purpose

4. Causation

IV. FALSE IMPRISONMENT

To establish a prima facie case for assault the following elements must
be proved:

1. ∆ confines or restrains ∏ within discrete boundaries


2. Intent

a. Knowledge to a substantial certainty or;


b. Conscious purpose

3. That results in a confinement of another against the will


4. The ∏ is conscious of the confinement or harmed by the confinement

Escape – if a reasonable means of escape is available, the ∏ is expected to


take it.

Exception:

Shopkeeper Privilege – in some jurisdictions shopkeepers have been


given the privilege for investigation.
1. There must be a reasonable belief as to the fact of theft – they have to
try to leave the store
2. The detention must be conducted in a reasonable manner, and deadly
force may never be used
3. Must be for a reasonable period of time

1. McCann v. Wal-Mart Stores, Inc. -- security guards told them that they couldn’t leave
or they would be arrested. Authority is enough. They thought the kids stole and their
motive was to keep them there until they found it out. They were not allowed to leave
the store unless they did so under threat or duress. The plaintiff believed that the guards
had the authority to keep them there and that the guards would call the police if they
attempted to leave.

V. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

To establish a prima facie case for intentional infliction of emotional


distress, the following elements must be proved:

1. An act by defendant amounting to extreme and outrageous conduct


2. Intent on part of defendant to cause ∏ severe emotional distress or
recklessness as to the effect of ∆ ’s conduct
3. Causation of
4. The ∏’s severe emotional distress

1. GTE Southwest v. Bruce -- intentional conduct that doesn’t cause a physical injury but
causes an emotional injury. Several employees working under ∆ Shields complained of
weird things he did. Why is this extreme and outrageous? He’s the employer he knows
that he’s the employer. It’s public. That makes it more humiliating that he’s choosing
to do it there.
2. Taylor v. Metzger -- racial slur case by supervisor to undersheriff. Extreme and
outrageous? High ranking public official. Represents the state. Entrusted to protect the
public. Laws against racial discrimination and this is a law enforcement officer.
Counterargument free speech -- 1st amendment defeated here because it’s the sheriff.
3. Feltimer v. Feltimer -- Divorced after 11 years and and 1.5 years later brings suit for
IIED. Should this be actionable IIED in the context of a marital relationship. What
makes these things extreme and outrageous? 1) duration 2) type of harm. Deterrence --
don’t beat your next wife Compensation -- she’s going to have ongoing shrink bills.

INTENTIONAL TORTS TO PROPERTY

V. TRESPASS TO LAND

To establish a prima facie case for trespass to land, the following


elements must be proved:

1. Intent

a. Conscious purpose
b. Knowledge to a substantial certainty

2. To enter the land of another – you don’t have to intend that it be the
land of another, and you can enter by missile, for example
3. Actual entry

VI. TRESPASS TO CHATTELS

To establish a prima facie case of trespass to chattels, the following


elements must be proved:

1. A voluntary act – conscious bodily movement


2. Intent to intermeddle with the chattel

a. Conscious Purpose or
b. Knowledge to a substantial certainty

3. That results in lost use, dispossession, or harm


4. Damages for lost value

VII. CONVERSION OF CHATTELS

To establish a prima facie case of conversion of chattels, the following


elements must be proved:

1. Voluntary act
2. Intent to exercise substantial dominion or control -- you don’t need
to intend that it be someone else’s.

Factors

a. Extent and duration of control


b. The ∆ ’s intent to assert a right to the property
c. The ∆ ’s good faith
d. The harm done
e. Expense or inconveniece caused

3. Over the property of another


4. Damages are for the full value of the chattel at the time of the
conversion

DEFENSES TO INTENTIONAL TORTS

I. SELF-DEFENSE
Rule -- one is privileged to use:

1. Reasonable force

a. Commensurate to the level of force used against you. Deadly


force is reserved for situations where deadly force is being
asserted.
b. Reasonable belief -- it doesn’t have to be true -- most people
would conclude

2. To defend against imminent harmful or offensive bodily contact


3. And against confinement

Example
Susan is standing on a street corner when Linda an old enemy, sees her.
Linda advances toward Susan, shaking her fists and threatening to knock
Susan down. Susan, who is bigger, pushes at Linda with both hands as she is
about to be hit, knocking Linda down. Unexpectedly, Linda falls onto a
metal post and is gouged in the back. The wound requires stitches and
hospitalization.

1. Reasonable force? Yes. Proportionate and; A push is reasonable in


response to a threat to be knocked down.
2. Belief is reasonable -- even though Linda is bigger, she reasonably
feared that she was about to be knocked down because Linda said she
was going to knock her down.
3. Defend against imminent harmful or offensive contact -- getting
knocked down. They are enemies and Linda has expressed a desire to
immediately injure Susan.

II. DEFENSE OF PROPERTY

Rule – You can use reasonable non-deadly force to defend your


property. You cannot use deadly or serious bodily injury force to defend
property. Ever. Life is valued over property.

The reasonableness of resort to firearms to prevent a trespass or to


prevent commission of an unlawful act not amounting to a felony is not
excusable.

Example

You may not:


1. Set up a trap gun to guard your abandoned farm house.
2. Shoot the damn fool kids stealing from your watermelon patch.

III. CONSENT

Rule -- consent is a defense, but consent can be negated by:


1. Duress (power dynamics -- no real opportunity to resist);
2. Incapacity – Capacity is measured by a plaintiff’s ability to
understand and weigh the harm and risks of harm. ∆ must know or
have reason to know of the incapacity.
3. Scope of consent -- the actions may not go beyond the scope of
consent – family transfusion case

1. Reavis v. Slominski -- Dental assistant sexual harassment case. Employer-employee


relationship can negate capacity to consent
2. Doe v. Johnson – HIV infection case. She also sues for battery and he argues consent.
Was her consent limited to having someone who was not HIV positive or did she
consent to have sex with MAGIC. The court says that if he KNEW that he had a
VD, the consent would be ineffective. If they do know and don’t tell, consent is
ineffective.

IV. NECESSITY

A. PUBLIC

1. Reasonable belief that a threat is coming


2. Necessity must be greater than the harm threatened.

This is a complete defense. If it’s met, the private property owner bears
the entire burden of the harm.

1. Surocco v. Geary – plaintiff’s house destroyed because town blew it up to save


other nearby homes to stop the spread of mayhem.
2. Wegner v. Milwaukee Mutual Ins. Co. – When bad dudes took over ∏’s house, the
police trashed their shit, and the homeowners sued the city for the damages. The
other basis for this action is the 5th Amendment’s Takings Clause. If the gov’t takes
peoples stuff for public good, the owners must be compensated. This state has a
takings clause in their state constitution.

B. PRIVATE

Rule – the elements of the defense of private necessity are:


1. Reasonable belief that there is a threat to you or your private
property
2. The harm threatened must outweigh the harm you’re going to cause
3. Damages – you must compensate the injured party for actual
damages done – this is different from being liable for trespass because
no parasitic or punitive damages.

1. Ploof v. Putnam – A violent tempest suddenly arose so this bourgeois asshole


hooked his boat up to someone’s dock. Have to compensate dock owner for actual
damages, but no parasitic or punitive.

VICARIOUS LIABILITY

I. RESPONDEAT SUPERIOR – EMPLOYER LIABILITY FOR


EMPLOYEE CONDUCT

Rule for negligent torts – an employer is liable for all tortuous acts
committed by employee that occur within the scope of employment.

Analyze:

1. Whether the person who committed the tort was an employee


2. Whether the employee was in furtherance of the employer’s interests

• When did it happen?


• What is the act?
• Where did it happen?
• Does it provide a benefit to the employee?

a. Going and coming rule – generally employers are not


responsible for torts committed while employee is traveling to
and from work because it’s not in furtherance of the employer’s
interests.

Exceptions:

i. Special hazards – it’s particularly dangerous.


Distance alone is not a special hazard.
ii. Incidental benefit to employer not common to all
commutes – The trip involves a benefit to the
employer which is not common to the usual daily
commuting trips. Does it enable recruiting from far-
flung places? Is the employee paid for travel time?

b. Dual purpose – concurrently performing a service to the


employee – if yes, then they’re acting in furtherance of the
employer’s interests?

Detour and frolic – The same act could be considered a frolic or a detour
depending on the facts. Detours do not relieve employer of liability; frolics
do.

Rule for intentional torts – Generally, employees are not liable for the
intentional torts of their employees. There is vicarious liability if sufficient
connection b/w employment and intentional tort where all of the
following are met:
1. Foreseeability – predictable risk (he’s done it before, it’s happened
before, it happens with some frequency – where there is a vulnerable
party)
2. Act has a causal nexus to employment – the employment put the
exploiter in the position to exploit, unique to the work, using the
equipment for the violation, it’s done while the patient is in the care
of the doctor in the hospital.
3. In furtherance of employer’s interests
4. Emotions arise from the employment or whether they are personal
– they distinguish psychiatrists/patients – because the ongoing
relationship is intimate

Example

Cops on their lunch breaks are not coming and going when they leave
guns unattended and the tort has nothing to do with commuting.

Special Hazard – Transporting a hazardous material.

Dual Puropse – being a 24-7 person who is working when he burns a motel
down is acting in the scope of employment.

Detour and frolic – Employer goes during lunch for a drive and kills a
family. Once you enter the frolic you’re no longer in the scope of your job.
As soon as you re-enter, they’re liable again. The same act could be
considered a frolic or a detour depending on the facts.

1. Hinman v. Westinghouse Electric Co. – He was assigned places to travel to and from
his home and was returning from works. This falls under exception B to going and
coming because a) larger pool of employees – increases the risk b) treating employee as
such by paying during commute time.
2. Edgewater Motels, Inc. v. Gatzke – Smoker sets room on fire. Film at 11. He works
for Walgreens. A) On call 24-7. B) Talks to bartender about bar business in context of
restaurant he just opened. C) Doing the books when fire starts. This is dual purpose
because he’s smoking for his own benefit and working too.
3. Lisa M. V. Henry Mayo NewHall Memorial Hospital – The ultrasound was performed
by the technician’s fingers. Incorrect. Should the hospital be vicariously liable? Power
of technician is as intense as that of a cop because she’s afraid for her pregnancy.

II. CONTRACTOR LIABILITY


Rule – generally employers are not responsible for the tortuous actions of
independent contractors.

Exceptions:

1. Control – Hampton factors

a. Selection and engagement of the servant – how are the


foster parents selected; are they interviewed, references
checked, background checks, advertising – if it looks more
like what employers do it’s going to tip it more toward them
being an agent.
b. Payment of wages – Is it going to be a one-time job or is it a
lump sum? It’s not like a regular payment of wages for a
contractor.
c. Power to discharge – can you fire them? With independent
contractors you can breach. An employee can be discharged
AT WILL.
d. The power to control the servant’s conduct – can you?
That’s more like an employee than a contractor. Day-to-day
way they conduct what they’re doing. In foster case, whether
the agency has regular contact w/ parents. Do they visit all
the time, and to what extent DHS can demand, request
changes. The more rights to control there are, the more it
looks like an employee.
e. Whether work is part of the regular business of the
employer – well, is it? Whether the work is something that a
regular employee would do. The law is trying to prevent
people from attempting to insulate themselves from vicarious
liability by contracting things out.

2. Ostensible agency

a. Holding out as employees – do they wear the same uniforms,


wear tags, company advertising.
b. Actual reliance by ∏ -- either that the person was an
employee or that the person looked to the institution and not
the individual for care; as opposed to relationship with a
particular doctor

3. Non-delegable duties – certain responsibilities cannot be delegated


away. Usually why? You could always delegate work out and you
would always be responsible. Inherently dangerous work that
includes a “peculiar risk of harm.”

Was the person acting within the scope of employment?


1. Is the tort intentional or negligent?
2. Analyze according to appropriate respondeat superior standard
above.

Example

Control exception

1. Selection – how are the foster parents selected? Are they interviewed,
references checked, background checks, advertising – if it looks more
like what employers do it’s going to tip it more toward them being an
agent.
2. Payment of wages – Is it going to be a one-time job or is it a lump
sum? It’s not like a regular payment of wages for a contractor.
3. Power to discharge – can you fire them? With independent
contractors you can breach. An employee can be discharged AT
WILL.
4. The power to control the servant’s conduct – can you? That’s
more like an employee than a contractor. Day-to-day way they
conduct what they’re doing. In foster case, whether the agency has
regular contact w/ parents. Do they visit all the time, and to what
extent DHS can demand, request changes. The more rights to control
there are, the more it looks like an employee.
5. Whether work is part of the regular business of the employer –
well, is it? Whether the work is something that a regular employee
would do. The law is trying to prevent people from attempting to
insulate themselves from vicarious liability by contracting things out.

Non-delegable duty

Transporting a pet lion, as opposed to furniture, is inherently dangerous


and creates a peculiar risk of harm.

1. District of Columbia v. Hampton – foster parent left child with two other kids for 12
hours. One of the children killed the baby. Natural mother sued foster parent as agent
of the city. Basis of claims: a) City is a principle, foster parent is agent b) Negligent in
selection of foster parents. What’s the relationship between the foster family and the
city? Foster parents are independent contractors. Exculpation clauses are not
dispositive.
2. Pusey v. Bator – This is non-delegable duty. Wilson entered K to supply security guard.
Wrongful death against Bator, YSP and Grief Brothers. Vicarious liability of property
owner who contracted with the security guard agency. Is this guy carrying a gun an
inherently dangerous job that creates a peculiar risk of harm? Yes. Does not apply
where the employer would reasonably have only a general anticipation of the possibility
that the contractor may be negligent in some way and thereby cause harm to a third
party.
STRICT LIABILITY

I. NUISANCE AS A PRECURSOR TO DEVELOPMENT OF STRICT


Nuisance is interference with the right to enjoy your land. There
are two kinds: public and private.

To establish private nuisance, the following elements must be proved:

Private Requirements – knowledge to a substantial certainty sometimes,


and other times based on a negligence-type analysis, where it’s inherently
dangerous strict liability

1. Substantial, and; -- how big the interference is and with what it


interferes.
2. Unreasonable interference; -- where it is and the character of the
neighborhood.
3. With the use and enjoyment of the land of another
4. Remedy – injunction; can get damages too.

Public Requirements – same but brought by the municipality.

II. STRICT LIABILITY

Restatement Rule -- benefits the party creating the risk more than the other.
These all have to be true for strict liability to be met:

1. ∆ ’s activity creates a reasonably foreseeable risk of physical harm;


the activity itself must create the risk – of property damage or
personal injury.
a. If the ∏ participates in the abnormally dangerous activity
can’t sue for strict liability.
2. The risk is a “significant risk;” gravity of harm is serious or
likelihood of harm is high.
3. The risk remains even when reasonable care is exercised; ∆ or the
∏ could somehow eliminate the risk of harm.
4. The activity is not a matter of common usage. How common or
frequent, generally not locally?
5. The harm must be within the scope of abnormally dangerous risk. ∏
has to suffer a type of harm w/i scope of risk. No eggshell
exception here.

Rylands Rule – Bringing something on your property that is inherently


dangerous – this is what U.S. courts have focused on. Two approaches:

1. Categorical – categories of activities that are always subject to strict


liability
a. Explosives – blasting always, storing sometimes – it’s
inherently dangerous no matter what precautions are taken. Per
se inherently dangerous
b. Wild animals – no matter how close you are to your pet lion, it’s
always inherently dangerous.
c. Filth – this has expanded to toxic substances.

2. Factor-based

Example

4th of July fireworks display on East River. Strict liability is preferable to


negligence because don’t have to prove breach.

Reasonably foreseeable risk of physical harm? They blow up and it’s


uncontrollable once you light them.

Significant risk? Getting blown up is totally grave or the likelihood is very


high.

Does risk remain even when you’re reasonably careful? Yes, because
sometimes a certain number of fireworks are going to blow up early, etc.

The activity is not a matter of common usage? Don’t set off fireworks
every day, but it’s going on in every town in every state, etc.

The harm must be within scope of abnormally dangerous risk? If people


get blown up? Yes. ∏ -- what if the ∏ is an employee of the fireworks? If
the ∏ participates in the abnormally dangerous activity can’t sue for strict
liability.

1. Rylands v. Fletcher -- ∏ owned a mine with underground shafts; owns underground


rights. ∆ owns a mill and surface rights fills up mine shafts below, which seep into
∆ ’s shafts. No because no intent to enter. Because it leaked. He thought the water
would stay in the reservoir, dogs. Should something else apply? A) Lowest court:
nope. B) Next court – starts to create a different standard, what’s that? A purpose for
his own purposes bring something into his own land if peril ensues, he’s liable for the
whole damages. C) Highest court sets out the rule above.

DEFENSES TO STRICT LIABILITY

I. ASSUMPTION OF THE RISK

If ∏ has actual knowledge of the risk and there is a voluntary encounter.

Example
Placing a “Don’t enter my property cause I’m blowing stuff up” sign satisfies
AOR.

II. CONTRIBUTORY NEGLIGENCE

Not a defense in straight contributory negligence jurisdictions – this is


not a liability based on fault. Comparative fault is apportioned.

III. INTERVENING CAUSES

Intervening causes are NOT a defense to strict liability.

Example

Lightning strikes nuclear storage facility – even unforeseen things don’t


break the chain.

IV. INTENTIONAL CONDUCT

Not just unforeseeable but intentional or criminal conduct. This is not a


defense.

Example

Intentional plane crash into nuclear power facility. Owner is still strictly
liable.