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OBJECTIVES:Be equitable, wise allocation of human/economic resources, compensate promptly, reliable, distribute losses, deter risky behavior, incentivize good behavior, minimize fraud.
INTENTIONAL TORTS: MAJ: Must act with intent to commit the act, not consequences of the act or the offensive/harmful part of the act, otherwise people would easily get off, not dual intent. MISTAKE
DOCTRINE: Under the mistake doctrine, if a defendant intends to do acts which would constitute a tort, it is no defense that the defendant mistakes, even reasonably, the identity of the property or person he acts upon or believes incorrectly there is a privilege. If, for example, A shoots B’s dog, reasonably believing it is a wolf, A is liable to B, assuming B has not wrongfully induced the mistake.(see Ranson v Kitner) Remember though, if privileged, self defense will protect D for reasonable mistakes. INFANCY AND INSANITY: Neither insanity nor infancy is a defense for an intentional tort. (See McGuire v Almy, Insane person did
intentional damage to another person, so is as liable as sane person). However, intent is subjective and requires that the defendant actually desires or be substantially certain the elements of the tort will occur. Consequently, if the defendant is extremely mentally impaired or very young, she may not actually possess the requisite intent. UNINTENDED CONSEQUENCES: when you deliberately batter/assault someone, you are responsible for all resulting damages, even unintended damages. Despite that language that there is no proximate cause limit in intentional torts, the court might well refuse to make one pay for say a hospital fire even though the intentional tort put him in hospital.(things to consider would be the actors intention, the degree of moral wrong and seriousness of the harm when he acted.) Morgan v Johnson- being drunk isnt good defense….
Battery- *Intentional (desires/sub cert) infliction of a harmful/offensive contact with the person of the P. Harm= pain or injury Offensive= offends a reasonable sense of personal dignity, based on circumstances, stranger v friend. Transferred Intent: attempt to batter A, but miss and batter B(see Talmage v Smith)… Similarly, attempt to batter but miss can be assault. Hypersensitive peopleYou can make contacts that reasonable people wouldn’t find offensive, but hypersensitive people would need to tell you their condition to allege battery. Causation: defendant's voluntary action must be the direct or indirect legal cause of the harmful or offensive contact, but defendant need not herself actually contact the victim. Vosburg v Putney- D intended to kick P, and tortfeasor must take victim as he finds him and cover all damages..playing? Alcorn v Mitchell-spitting in face≠harmful but =offensive. Mohr v Williams-D acted w/o wrongful intent and wasn’t guilty of negligence but still committed bat and ass bc he
wrongfully/unlawfully operated. Garratt v Dailey- D child intentionally moved chair so P adult hit ground, P guilty of battery even without intent to harm, bc of sub. cert.
Assault- *Must act with intent (sub cert.) to cause harmful/offensive contact or imminent apprehension of such contact, and the person is reasonably put in such imminent apprehension. (anticipation, not fear) Watch out!: its assault when you say, watch out for that falling plank! Or if u make a snake noise behind someone in a dessert, although there are no cases like this, although you could argue it was mere words too. Transferred Intent: try to assault A, instead assault B. Mere words: not enough, but mere words+circumstances and others acts✓Conditional threats: are assault (get out or I kill you) unless you have a legal right. IdeSvWdeS-actual touching of P is not required for assault. Tuberville v Savage-‘if u weren’t old, I’d hit u’≠assault. Brower v ackerley- telephone threats≠ assault bc not imminent) Trespass to chattels- Defendant's acts must intentionally: (1) damage the chattel, (2) deprive the possessor of its use for a substantial period of time, or (3) totally dispossess the chattel from the victim. Trespass to chattel does not require that the defendant act in bad faith or intend to interfere with the rights of others. It is sufficient that the actor intends to damage or possess a chattel which in fact is properly possessed by another. Intel Corp v Hamidi-w/o actual
damage, there is no cause of action for tres. 2 chattels. Harmless use or touching is tech. tres 2 chat but w/o dispossession is not actionable.
Trespass to land- D (a) intentionally enters, or causes a thing or a third party to enter, the land in possession of another, (b) intentionally remains on the land after permission to be on the land is removed, or (c) intentionally fails to remove from the land an item that the defendant is obligated to remove. Doughertyv.Stepp-D went on to P’s land to survey it. Every unauthorized entry on land is trespass∴damages for even bent grass, property right was protected at the expense of
innocent mistake (Plaintiff does not have to show any harm to the land or to the person to recover for trespass to land. The injury is in the violation of the plaintiff's right to exclusive possession of the land.)
False imprisonment- *The defendant unlawfully acts to intentionally cause confinement or restraint of the victim against their will within a bounded area. *Accidental confinement: is not included and must be addressed under negligence or strict liability. False imprisonment can exist with: an unfounded assertion of legal
authority (such as impersonating a police officer), or by confiscating someone's physical property in order to keep the person from leaving, and even from an intentional breach of a duty to release people, such as keeping someone in a mental institution longer than the state mandated sentence or the failure to place someone in court promptly following an arrest. Words can restrain person if he fears disregarding them, even if no physical restraint. Duress: false imprisonment will result from duress of person or property, but threats of duress in the future are insufficient. Moral pressure to leave is insufficient, must be actual restraint. Transferred intent does apply. No reasonable way to exit: False imprison. exists if there is no reasonable exit (unknown, risky, discomforting). P can’t go where he wants: normally not enough. Escape: Generally held that false imp. invites escape, so if P hurt escaping, D is liable. Knowledge Majority: P needs to have knowledge of detention (see Parvi v City of Kingston) 2nd§42: allows recovery if there is knowledge or if damages happen even w/o knowledge. Contra to the Re: some hold a child subject to false imprisonment even if the child was neither aware of the confinement nor harmed (see Kajtazi v Kajtazi). Bird v Jones- total detention, not partial, is req’d to give rise to false imprisonment. Coblyn v Kennedy’s- statute allowed detainment on reasonable grounds, in reasonable manner and for reasonable time…D had honest suspicion, but reasonable person would not view P’s conduct as shoplifter like. Conversion-*Restatement § 222A defines conversion as “an intentional (like you just need to intend to sell or take it) exercise of dominion and control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel.” *Only very serious harm to the property or other serious interference with the right of control constitutes conversion. * Damage or interference which is less serious may still constitute trespass to chattel, basically ask, will you be asked to pay for it (conversion) or just repair the damage to it (chattels). *Purchasing stolen property, even if the purchaser was acting in good faith and was not aware the seller did not have title, constitutes conversion by both the seller and innocent buyer. Moore v Regents of U of C- typically if you abandon something, you can no longer sue for conversion.
IIED- *Physical injury or severe mental suffering caused by outrageous words or acts of the D done with intent/sub cert/(or even recklessness) to cause ED, some require extreme distress to result. Objections: hard to tell ED, fictitious claims, flood gates, perjury from overstating/lying about facts. Outrageous=2nd §46“beyond all possible bounds of decency and to be regarded as atrocious, and utterly intolerable in a civilized community.(ah, but from who’s perspective? Black or white?)” The vulnerability of the victim and the relationship of the defendant to the victim can be critical. Mere insults: is not enough. Third partiesMaj: only if she is (1) a close relative of the primary victim; (2) present at the scene of the outrageous conduct against the primary victim; and (3) the defendant knows the close relative is present. Re: is
somewhat less restrictive, requiring only that a primary victim's immediate family members be present and can prove the elements of the tort. Non-relatives who satisfy the elements of the tort can also recover under the Restatement if they are present and suffer physical manifestation of severe distress. Common carriers: Common carriers and innkeepers are liable for intentional gross insults which cause patrons to suffer mental distress. There is no requirement the defendant behave in an extreme or outrageous manner or that the victim suffer extreme distress. Wilkinson v Downton-extreme conduct causing physical injury is actionable, even if it’s just a joke.
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DEFENSES TO INTENTIONAL TORTS:*X pushes Y, Y overreacts and tries to kill X. Some crts say Y can use deadly force and some say he must retreat if possible. MorganvJohnson- court rejected the D’s argument that the P’s intoxication should be a defense to an intentional tort. Self-defense: must use the force reasonably (in eyes of victim) believed (not always correct) to avert the threatened harm. Duty to retreat: Most crts refuse to create duty before
using non-deadly force, even if you could retreat. Deadly force in S.D.: Most crts say you can use deadly force in SD only if you reasonably believe you are being threatened with deadly force which can only be prevented with deadly force. Duty to retreat: Some Crts: require victim of deadly force to retreat if it is clearly safe to do so (unless home), Most: say you can use it even if you could retreat. Rape: most allow it. Courvoisier v Raymond-can use force against those endangering you & those a reasonable person in same circumstances would believe is endangering you. Defense of others: Basic idea is you have right to use the same force to defend other that you could use to defend yourself. Mistaken Defense of others Most&Re.2nd say: you have privilege to act upon your reasonable perception…Less say: you better make sure you are right or you are the aggressor too. Defense of property: Can’t use deadly force for property, dangerous means to protect property will be highly scrutinized. Even slight force is excessive if a verbal request would work. Wrong party: Force in defense of property is only a defense when it is actually directed at a wrongdoer. A reasonable mistake that an individual has wrongfully interfered with property is not an excuse. BirdvHolbrook- spring guns used to injure people, not just as deterrence (no sign), so not ok. KatkovBriney-using deadly force on unoccupied property is unreasonable. M’llvoyvCockran- if trespass is nonviolentask to leave, don’t hurt, but don’t ask if it won’t work or isn’t harmless. Consent: *Express Consent: can consent through words or gestures. *Implied Consent: when the conduct of the individual would make reasonable person think you consented. Informed: consent must be informed, trickery/force/lack of info/fraud will make it void. Words/gestures/conduct- Most crts say D is privileged to reasonably assume consent with P’s. *Athletic injuries: are not consented to if outside scope of the game and deliberately illegal (see Hackbart v Cincinnati Bengals). Minors- cannot consent and you
the injured person can foresee the danger and had express knowledge of danger and is not is not “innocent. College-college had duty to protect student against foreseeable criminal assault that took place in broad day light). 3.TJ Hooper. Common carriers. See Kirby v Foster. disclaimers are very heavy and say dr. Causation. in which the plaintiffs asserted that the defendant therapist had a duty to warn them or their daughter of threats made by the psychotherapist's patient and relationship to either was sufficient) (2)the psychiatrist facilitated the commission of crime (Lungren v Fultz where doctor helped patient get guns back) (3) when a promise is breached to future victim. needs to be immediate necessity and act in good faith for public. custodians and their custodies. no matter how dangerous. consent is invalid if it misrepresents an essential aspect. Titus: they found that if something is customary. Policies. modern courts treat absence of informed consent as grounds for negligence rather than an action for battery. businesses that hold themselves open to public.g. but isn’t law. Public-injure private party interest to protect community.no liability for stds if no reason to know you had it. not left. just not unreasonable risk. Good Samaritan statutes limit this type of liability. 2 approach: Restatement holds that a person can consent to a criminal act for purposes of tort liability. Statutes: Negligence per se=harm needs to be one the statute is meant to avoid and victim needs to be the intended beneficiary. despite lack of actual consent. can do what he thinks is necessary.(Moch v Rensselaer.Informed consent: consent must be informed. Special Relationship to victim: Courts impose duty to aid (rescue) based on relationships.Parties did not originally intend that D should be liable to individual members of public. Breach of that duty by the D. [See Restatement §§ 101-104.). infringes individual liberty. you must warn those who might be injured adequately) Duty based on gratuitous service: once you decide to get involved.liable for rescuers if one who created apparent peril. Duty based on innocent creation of risk: If you are non negligent and create a risk.P entrusted D with goods. e. HusdonvCraft-(not in case. peril is imminent. limit being grievous bodily harm. Min: the standard of care remains that of a reasonably prudent person and the relevant statute is simply admitted for the jury's consideration in . Breunig v AmericanFam-had a history of delusion. if you non negligently injure someone. Battery even though properly done. E. Mayhew v Sullivan. Wagner v International. the consent is always invalid. of peril was imminent (3)reasonably prudent person would have concluded peril existed & (4) rescuer acted w/ reasonable care in effectuating the rescue. A few went further and determined that a social host could be liable to a third party injured by a drunken guest. Common ones include: (policy reasons) limiting liability for serving alcohol to intoxicated patrons (At common law. A duty. otherwise could become very violent. Good reasons to create duty: Foreseeability-foreseeability of harm weighs heavily in favor of imposing a duty bc we should avoid foreseeable injuries to others. the actor is liable even if the mistake was reasonable. so you should minimize the consequences. then we risk people lowering standards. depending on age. Titus v Bradford. may be different if they are severely retarded (sucks when they are poor/have already paid enough) Mcguire v Almy: We tend to hold insane people liable bc 1 want to incentivize caretakers 2 compensate people injured 3 avoid cost of determining people’s mental state 4 limit people feigning insanity. as the storm gave him the right to do.(Long v Broadlawns. E. No Duty EXCEPTIONS: Promise: Old rule mere gratuitous promise to render service does not create duty. Based on idea that you are noble. Ploof v Putnamprivilege to enter land and use chattels if there is private emergency (like family life here).if risk is minor enough to outweigh utility the act is not negligent (we can put people at risk.on the part of the D to conform to a specific standard of conduct for protection of P against an unreasonable risk of injury. Same w/ unconscious patient in emergency. be held to reasonable skier standard bc we don’t want to ruin the ‘single objective standard’ otherwise we would have to evaluate everyone’s level of expertise. this court said: law was intended to protect participants in boxing contests and P was a member of that group. Modern viewjust act reasonably. whether or not such right is ultimately vindicated by the courts. and is complete defense Private. Special Duty issues: (1)Courts general refuse to impose liability for doing nothing b/c its hard to impose. These decisions are controversial and raise complex policy issues. but that doesn’t mean you can mishandle. but never did) Thompson v county of alameda. 2. D cannot use force to recapture chattel that is rightfully P’s. But. might be different if D’s conduct would normally result in an injury to P) (Erie v stewart. neither sellers of liquor nor social hosts were liable to those injured by those to whom they served alcohol. BREACH-Failure to exercise reasonable care under the circumstances (time/custom/statute/expert(an expert skier will norm. Newer rule cases such as Marsalis find that D is liable for not living up to his promise to keep the cat.) DUTY: General Duty: General duty to act in a reasonable manner. co adventurers. Physical threats to consent are invalid. Special relationship to perpetrator: Courts like to impose duty to exercise reasonable care to control one person to prevent him from injuring other. Policy argument here was to protect 18yr old boxer from promoters. and therefore make P go through painful treatment. Gouldordin. so insanity defense did not work. Land owners: see back of Epstein. this is based on the exigency of the situation based on what reasonable patient would consent to. Reasons to not create duty: Excessive burdens on actors. Consent Med. but there is a another view that you can’t gain right of action by participating in illegal act). the case turns on whether D had done all that human care. D liable) Negligent entrustment: Negligent entrustment cases involve misfeasance by the defendant. the class most likely to suffer greater harm should be protected even at expense to other class. Damage. 1 approach: a person cannot consent to a criminal act. vigilance.g. secondary economic losses. landlords and tenants.(Hurley v eddingfield-Dr not liable for refusing to render medical services)(2) those who act and create a risk of injury to others. custom-often means not neg. Regents of University of California. But unlike public. schools and students. This is based on risk creation rationale. truck is disabled.the breach is the actual and proximate cause of P’s injury. Recapture of chattels: General rule is to use reasonable force to get it back. Standards of Reasonableness: Custom: is downgraded in 3rd Re. D accepted and damaged goods. some crts will supersede relative decision and allow surgery. Illegal acts. D was liable for injury he inflicted on the warf. economic pressue is ok. must warn on-coming traffic. Insane/Retarded/Drug &Alcohol induced individuals normally cannot legally consent.” plus almany incentivizers are gone. must warn others.) Common carriers: Andrews v UA-airlines have very high standard of care. wont make people do broad things when others are better suited to do it (hospitals warning patients of all risks vs doctors doing that…see Kirk v Michael Reese). Unanticipated problems: can’t be consented to in advance. but when he is institutionalized and injures a caretaker. Vincent v LakeErie-having deliberately availed himself of P’s prop. Hand Formula: Burden of precaution<Chance injury results*gravity of injury. it’s a policy choice to hold them liable. if one was acting as an expert (like ski patrol) (2)the jury is likely to have this effect them whether they are told to or not)/other facts)Bolton v Stone. Internal Standards: if we hold people to higher internal standards.where they promised to call when husband was released. and has merely failed to benefit the victim and hasn’t hurt him. cases support ‘limited privilege’ to extend surgery within consented incision unless involves destruction of bodily function. Likewise. Several have imposed liability on commercial suppliers of liquor. W/o relative. Maj: unexcused violation of relevant statute is n. it was unreasonable to drive. Generally. injuries that occur on others’ land. employer and employees.company established custom of due care and person has relied on it.one does not exercise care by following industry custom if the custom is itself negligent. Some say there is implied consent to an extension. Traditional viewcan’t leave victim in worse position that she started in.actionable when husband fails to tell wife of medical condition. you assume a duty of care. no duty. The defendant's liability is premised on supplying a potentially dangerous instrumentality (such as a car or gun) to a person the defendant knows or should know is not fit to handle it. however (1) it would be dif. so ‘substituted consent’(ask relative) is very common and well endorsed although if it goes against expert medical advice.old view.indiv. E. Nowadays. “obligated to minimize risks to his tenants”). MAJ: the statute replaces the usual “reasonably prudent person” standard of care. o NEGLIGENCE: In General: to recover1.p. and some courts will provide immunity to doc. (Kline v 1500 Mass ave Apartments. Morality-very persuasive when the defendant is in a particularly good position to prevent harm. reasonable person known of the peril. rescue was not reckless.o o can always argue you didn’t consent to THAT. The consent is still valid except where the criminal law is specifically designed to protect members of the victim's class. (Peterson v San Fran Comm.overt acts and conduct created consent.g. innkeepers. Has its biggest impact with (1)potential target is identified(Tarasoff v.] Modern variations: landlords can only recapture homes when they are peaceful. he is liable for damages. and especially those in charge of mental patients and prisoners.duty was placed on landlords to take steps to protect tenants from foreseeable criminal acts committed by third parties. we need to assign the loss to someone.. who is told not to operate. 2nd §102-06 says use reasonable force if you are entitled to immediate possession. society let you create the risk. no duty owed to particular plaintiff. This is greatly based on the unique position the D is in to prevent the harm. o Insanity: Ultimately. O’BrienvCunard. Parent and child. and foresights reasonably can do under the circumstances. you must reasonably assist them. Risk Creation EXCEPTIONS: Some say there are none (see Heaven v Pender). doctors do what a reasonable patient if conscious would consent to under emergencies (assumed consent). Necessity: normally defense to intentional trespass. the company has a duty of care and if it withdraws service must warn)(Coggs v Bernard. the court will not find negligence. Chilling effects. (Cooley v PublicService. The promoter is liable. may consent only to certain things. Rationale is that the reasonable person obeys the law. we choose them for a reason + they are the experts and they are the ones that take that level of care. Innocent party: If force is directed at an innocent party.The industry has lagged in installing receivers. but they are still required by reasonable prudence to install them. but party may offer excuseincapacity/lack of knowledge/ inability to comply/emergency not of actors making/compliance is worse/children. Generally the defendant owes a duty to foreseeable victims for foreseeable harm. you demanded return was refused and you’re in hot pursuit. Achieve rescuer status: (from McCoy v American Suzuki. Invalidating Consent: Children.standard of negligence is what the industry custom is. Courts and legislatures have been reconsidering this common law view. Treat: Generally.s. McPherson2. do have a duty to exercise care to avoid injuring others. Duress Fraud.different from Tarasoff bc the potential victim was general public.g. or against one acting out of a bona fide claim of right. Defendants choice to engage in risk creating conduct for his own benefit imposes the reciprocal duty to exercise due care toward those who may foreseeably be injured by that conduct see 2nd §302. injures private party for private interest valued greater than injured property. 4. even though you could have walked away initially. MohrvWilliams. Duty of public utilities/gov: in general. employer and employee. not always. if in hot pursuit. privileged to possess the chattel.(1)D was negligent to person rescued & such negligence caused peril or appearance of peril (2)the peril or app. Administrative problems.P injured when D used force to get back money he had given to P. mentally disabled person is liable for torts.consent to operate on right ear.when2 classes of people can’t both be protected. (Montgomery v National Convoy-if you create a danger.
Causation in lost chance casesSome courts apply this instead of But for. Approaches: (1) RIL merely provides evidence to support an inference that the D was negligent. the relative merits of each approach are irrelevant provided there is an established custom supporting the method employed. still need but for analysis. (2) RIL shifts burden of proof on the defendant to rebut. Informed Consent: Canterbury v Spence. (3) Presumption of neg is raised.Bc all of defendants would be motivated to protect each other. where they held defendant liable bc indivisible injury. and allow the jury to value damages in proportion to the chance lost due to the defendant negligence (aka. ColmenareVivas v SunAlliance-Although Westinghouse did maintenance on escalator. all other D’s are jointly and severally liable. in a similar community. and what do you do when X and Y’s actions were individually sufficient to cause injury. If company 6’s exposure was small. the lower standard will not apply. and under like circumstances.D did not have a reason to expect to have a seizure and was therefore not liable.In Re Polemis-Direct cause testD is liable if his conduct is direct cause. such a scenario (unsatisfactory results) requires us to use the…‘Substantial Factor’ analysis if the jury finds the act was “a material or substantial element” in producing the harm. but does not compel a finding for the P even where there is no rebuttal evidence.minor participates in adult activity. more likely than not it was bc of D’s negligence. (if one fire burns it first. D's superior knowledge is a compelling justification for the application of res ipsa loquitur. hold them liable for 15% of wrongful death action. negligent for saving child on tracks bc act wasn’t rash/reckless. would P still have suffered the same injury? Two ‘but-for’ causes: don’t need to be the sole ‘but for’ cause.Chiro. Abel v Eli LillyP can join all defendants who might have sold the drug ingested. If X would have died anyway 49% of the time. people Beginners: no beginner standard like drivers ed. or doing so poses threat to patients well being(very limited). but not oafish/hasty/awkward/mentally ill. but will work if you are negligent and get hurt. maybe it won’t be a substantial factor. In these group of cases. others say no!. Lama v Borras. Reasonable Man: Considers: foreseeable risks vs utility(§291). regardless of whether the court accepts lost chance doctrine. alternatives(§292c). Reynolds v Texas If a negligent act is wrong because it increases the chances a particular harm will occur then we will assume that there is a causal link. so RIL was met.Has to be the kind of evidence that is scientifically testable. This is hard to use but for.no label on poison. and under like circumstances. Daniels v Evans-when minor participates in adult activity. 2 ways to interpret Sindell’s payment scheme 1. if some D’s are not before court. opposed to remote cause. ask: what are the risks that make the defendant’s conduct negligent in the first place? What unreasonable risk should the D have anticipated at the time she acted. and NY bars any maker of DES from proving that it did not make the DES that injured the P. so P loses. if anything. Weakness: sometimes it’s very difficult to hypothesize what would have happened.(PR court. Causation requires showing a nexus between the defendant's unreasonable act and the injury. but negligence of dropping it was direct cause.held to reasonable person of like age/intel/experience under the circumstances. not just one person like in DES cases. so normally won’t use if you have other evidence. 2.guy dropped board and it caused a spark. D wouldn’t be liable. Kingston v Chicago. (2) product is same (3) Can they show they are not responsible? (4) substantially all the tortfeasors in front of us. Blyth v Birmingham-D did what reasonable person would do under circumstances. Physically disabled: is ok. this will either under-compensate. circumstantial or not. and if other fire was natural. bc then you would prob just use that. this will work. (hospital prescribed wrong dosage. and he was reasonable. likelihood 1:10 or 1:1000(§293d). in a similar community. Oxendine: evidence is more or less for the factfinder to determine. court must find negligence as matter of law. just a ‘but for’ cause. this approach would tend to hold each defendant joint and severally liable for all the damages. Others: hold that statutory violation creates a presumption of negligence. P might want to try but for causation bc then he can recover everything. other say you must wait for the actual injury to occur.ship lost at sea is not RIL because sea has a mystic. so P loses bc cant muster proof. Now patient has 40 % better chance of getting cancer again. then P can re-rebut. one of which caused injury to P.P who proves that she was injured by the DES recovers from any defendant who participated in the US market for DES.incapability and disclosure poses threat to patient specialists to national standard of care. clerk was liable bc there was a statute saying ‘need label’ meant to protect people of this type for injury of this type. Defenses: attack 1-3. (2) exclusive control of the instrumentality by the defendant (liberallymost likely D is responsible). D had a non delegable duty over them to maintain them in safe condition. Using expert testimony to prove causation Frye v US: as long as expert testimony is generally acceptable as reliable by scientific community. even if they violated statute. most courts and the Restatement do not require that the defendant have greater access to the facts than the plaintiff for the doctrine to apply. and (3) absence of voluntary action or contribution by the plaintiff. P need not explain away all possibilities as long as she shows that such an accident ordinarily does not occur without negligence.Dr has duty to disclose. a D may avoid liability by proving it did not manufacture the particular pill. then it is diagnosed and removed. Note: some courts hold Acceptable approaches: As long as one of the accepted approaches is followed. but vio of stat was not prox cause of injury. so neither action is a ‘but for’ cause. Uhr v East Greenbush. we have 2 requirements: Cause in Fact and Prox. P will not fully recover. in a similar practice. recovery would be in proportion to national market share (which is better bc it is hard to define “market” and worry about drugs moving around. Osborne v McMasters. Herskovits v GroupHealth: decedent died of lung cancer and evidence shows that he had a 14% better chance of living (39v25) with a prompt diagnosis.very unique and not universally accepted…normally 2 unknown defendants won’t cut it. Further. or pay 10/60 of damages. sufficient but not necessary dilemma.Don’t want to disincentivize schools for checking scoliosis. Mental capacity. Daniels v Evans. Child. the court departs from the normal RIL doctrine that the P must show that the cause of harm is under the exclusive control of the defendant in order to smoke out the evidence. Hymowitz v EliLilly. Explosion was unforeseeable. Shifting burden of proofSummersvTice stands for the proposition that where 2 or more defendants commit substantially similar negligent acts. otherwise they are both jointly liable for everything which means someone who did not commit the crime is liable but better than leaving P with nothing. RIL will not work: if P’s negligence helps create the danger. etc). Licensing Statutes: Most courts refuse to use licensing statutes as the standard of care because the lack of a license itself does not establish the lack of due care. but P realistically can’t. it is likely P will never win under but for bc it was not more likely than not…so we need something else.Foreseeability: Perhaps best approach.(if it was 50% or greater chance of survival. RIL: (1) an accident that normally does not happen without negligence. awesome quality. cause)Market Share Liability. makes easier to be negligent. Cause. this is on real decline. Others: it is merely evidence of negligence and can lead to not hold liable even if there is no excuse offered. 3rd Restatement endorses this approach.(see Rutherford v Owens-Illinois) We didn’t use market share for these cases bc its hard to tell a market for something that takes place over years. Medical Malpractice: A doctor must use that degree of skill and learning which is normally possessed and used by doctors in good standing. If P can sue everyone. lower standard will not apply. Causation in DES cases(exception to showing prox. if the prudent person could reasonably be expected to decline the treatment if there risks were disclosed.P gets hit with barrel.. 2 exceptions to disclosure. It is a form of circumstantial evidence. Some accept Summers proposition. Daubert v Merrel Dow. In re Polemis. YbarravSpangard. D can’t be liable for result of unusual conditions. Pay 10% of damages. Fletcher v Aberdeen-blind person is entitled to walk the streets too. Causation in Cumulative Issues Around asbestos for years from 6 companies and I get asbestosis. Sometimes what constitutes an acceptable method is debatable. 2 fires merged into one and burned P’s property so it seemed fair to hold him liable w/o but for. P must convince the jury that each of these factors more likely than not exists. The extent and the precise manner in which the harm occurs need not be foreseeable… . maybe the other is not substantial element and shouldn’t be held liable. and exploded the ship. extent of risk (§293). High Risk/adult activities engaged by child will result in adult standard of care. and bc realistically. or overcompensate) Future harm: Doc doesn’t diagnose cancer. many courts have chosen to treat the injury as the lost chance. had no license as req’d by stat. then there is sufficient causation.determining whether D exercised reasonable care. Vaughn v Menlove-‘best judgment not good enough’ arg won’t escape liability. so lets us substantial factor test. 2 exceptions: unconscious. and w/o excuse. costs involved. The court sent it to jury under ‘substantial factor’ instruction. but did nothing to create the danger. Sindell v Abbott Laboratories say we need (1) P can’t identify individual manufacturer. like poisoning X’s drink but Y kills X before he drinks it. Cause in Fact: ‘But-For’ If D didn’t perform the negligent act. so case specific evidence can make or break the analysis. Some court says you can sue now. Patient rule(Canterbury) a physician is obligated to disclose to a patient all material risks involved in a given procedure. so you’re not liable) (see Anderson v Minneapolis. a doctor is protected from malpractice liability. they all created the risk. Walston v Lambersten.Some don’t accept. Hammontree v jenner. Unlike market share. and compare that risk to the injury that actually happened. but indistinguishable from virtually all common law jurisdictions) A doctor must use that degree of skill and learning which is normally possessed and used by doctors in good standing. in a similar practice. still need to prove he didn’t exercise proper care. Martin v Herzog-The unexcused violation of a statute is negligence in itself. Sindell says sue a number of manufacturers and hold each liable based on proportional share of DES it sold in relevant market. Eckert v LIRR. the standard is what a prudent person in the patient’s position would have decided if suitably informed of all perils bearing significance. of P’s injury. XX Zuchowitz v US.2nd §283B says: people w/mental incapacity held to same standard of ord. so d was liable for failing to replace barrier to hole. the burden of proof shifts to each defendant to show that he did not cause the harm.not contrib. The direct test would find proximate cause satisfied whenever the defendant's negligence caused the injury without any intervening force. CAUSATION. To assure liability will only be imposed when P’s loss is attributable to the D’s conduct. Byrne v Boadle. not just % difference. Roberts v Ring-can’t use physical infirmities to escape negligence. collusion?. woman fell down stairwell) Proximate Cause: 1. or one fire is huge. Professional rule(unacceptable to Canterbury)must disclose risks of a given procedure that would customarily be divulged by doctors in good standing in the relevant community. BrownvShyne.
showed no ordinary care to avoid D’s negligent obstruction in road. Imposing liability for unforeseeable risks will not affect his choice.” (Restatement § 463) 3 exceptions: 1. even if it is more serious than originally anticipated. Now Y is vicariously liable to Z or is barred from recovery against Z if X is contributorily negligent. P may be able to recover despite his contributory negligence. or (3) share responsibility for a tort because of vicarious liability. He wants to ask whether D’s conduct was a substantial factor in producing the harm. Distinction:(contributory neg vs avoidable consequences): If P fails to act as a reasonable person in order to mitigate his damages.. CLASSIC DUTY LIMITATION: refusing. you still need to communicate the risk in a way that is more than fine print. but he can only consider the liability consequences of risk if he can foresee them. they wouldn’t be.Dalury v S-K-I. he knew of the danger and voluntarily kept working. but certainly will not make you completely 100 percent liable. a later act supersedes her negligence and breaks the causal chain. Just bc the driver’s employer cannot maintain an action if he were injured while in an omnibus operate by his driver. and then the workers obviously lose their wages. (2) If injury to P is foreseeable. in bringing about the plaintiff's harm. that does not mean that a passenger should not be able to do so.plaintiffs are allowed a partial recovery just as in pure comparative negligence until the plaintiff is either more negligent (greater than 50% at fault) than the defendant(s) or in other states equal to the negligence of the defendant(s). Y has a special relationship to X. WashingtonVJohnson-if purposely put urself in danger. Bierczynski v. Roge) . so no sign was needed.Boats crash.g. BohanvRitzo. All risks were evident. . the court said we should look at comparative causation in evaluating damages in strict liability cases. then the persons contributory negligence in placing themselves in that position will not shield you from liability (see pg 352-53 for Re2nd) Fuller v Illinois. Seigneur v National fitness. LamsonvAmerican Axe. you are aware or should be aware the plaintiff cannot avoid the on-coming danger. Guidelines for last clear chance are: the def.Property adjoining to someone is subject to some risks. D allowed P to us gasoline to clean room with an open flame. endorsing comparative negligence. PalsgrafCardozo held that the duty to avoid injuring others extends only to those risks the actor should anticipate from one’s negligent act. and is solely responsible for it despite contributory negligence. Marshall v Rain. Last clear chance: most juries will find the fact that you avoided the last clear chance will make your negligence seem worse. but an explosion was exactly the type of accident to be anticipated for using the gasoline. and you can avoid that danger.see Derheim they mitigated bc no seatbelt. so P got on ride. This means that each individual is fully liable to the plaintiff for the entire damage award. or 50%. courts will not hold the negligent party liable when bizarre unforeseeable (intentional torts) events give rise to a risk different from the one the defendant should have anticipated. 3 basic elements: plaintiff must (1) know a particular risk and (2) voluntarily (if no other alternative. Gyerman v USLinesCo. and fell and sued D for negligence.] Difficulties include: all responsible parties need to be there/specific % is hard to assign/last clear chance and assumption of risk/willful misconduct. It would be impossible to impose a duty to use your land in such a way that other’s wrongs can’t harm it.. then its not voluntary) (3) assume it.“Liability for damage will be borne by those whose negligence caused it in direct proportion to their respective fault. and they said it wasn’t an activity of great public interest nor practical necessity. The manner was unusual. you do need to have knowledge or awareness of the particular danger involved.Train hits wagon and man even though it easily could have stopped in time.essential public services are not the kinds of things we want to release from liability.Maddox knew about the field conditions and played anyway. 3. negligence not a defense/assump. but it is not subject to risks created by the wrongful use of the railroad’s property or its negligent operation of trains on the property. Defense of superseding Cause: D may argue that even if she was negligent. e. to impose liability for ones that are foreseeable. “D takes the P as he finds her” so if she has a ‘thin skull. Maddox v City of New York. and not from explicit assent. When the risk of criminal conduct is foreseeable. if he did it maliciously. often called comparative fault [See Restatement (Third) of Torts. (2) act independently but cause a single indivisible tortious injury. “conduct on the part of the plaintiff which falls below the standard of conduct to which he should conform for his own protection. 3. Says that there is no special orbit to look at to limit liability. and P was contrib.” CA adopts pure form in this case. the D is liable for the injury sustained. D won’t be responsible to pay for the wages bc the secondary economic losses is too great. Since she was an unforeseeable plaintiff to whom no reasonably risk was to be anticipated. 2B.P’s claim dismissed. Economic rationale behind foreseeability approachwe want to incentivize people to avert risks since he will incur those costs. United Novelty Co V Daniels. last clear chance won’t work as a way out. a plaintiff explicitly agrees to accept a risk. JOINT AND SEVERAL LIABILITY: (if you can divide injuries nicely. the tortfeasor(s) from whom the plaintiff can collect are responsible for the other tortfeasor's (s') share.see United Novelty v Daniels. This allows the jury to treat assumption of risk as a partial defense. and since he was a pro ball player. Not a defense to intentional torts. just apportion damages accordingly) Joint tortfeasors are two or more individuals who either (1) act in concert to commit a tort.can’t say someone assumed the risk when they are doing something they have a right to do. In Ryan V NewYork Central Railroad. the court restricted liability for fire damages to the first adjacent property burned bc it wasn’t the proximate cause…but we know the real reason was too great of economic liability. LivYellowCab. 2A. both are negligent. b/c the point of some statutes are to place entire responsibility on the D to protect the class of people P is in (characteristics of these statutes: strict liability/contrib. I throw a flower pot out window with 2% chance it hurts someone.Binding arbitration agreement was no upheld bc no one explained to P the terms of the agreement.clause unambiguously excused the defendants. instead we owe the world a duty to be reasonable. no need to use this liability.’ then you are liable for her skull. (=50% and >50% is big diff). or reckless misconduct.g. Imputed Contributory Negligence: X is negligent and hurts Z.negligent stacking of sacks would not have been corrected if he said something.Flopper made people fall. DUTY AND PROXIMATE CAUSE: CLASSIC PROX CAUSE SITAUTION: refusing to impose liability for unforeseeable consequences reasons. Implied assumption of risk exists when the plaintiff's voluntary exposure to risk is derived merely from her behavior.(courts will be most suspicious about cases where you are in an emergency and sign everything…although would a month even make a difference?) Russo v Range. Last Clear Chance: The last clear chance doctrine instructs the court to ignore the plaintiff's contributory negligence if the defendant's negligence occurred after the plaintiff's contributory negligence. MurphyvSteeplechase. (3) If the risk eventuates in an extraordinary way. has to be aware of the danger or should know the danger. P assumed risk bc P saw dangers of ride.here comparative negligence can slip into strict liability cases. whether or not the injured person or manner was foreseeable or not. of risk not a defense).worker couldn’t recover bc he assumed risk.. Violation of some statutes. Wagon Moundheld that P could only recover for the injuries that the defendant should have anticipated at the time it released the oil. Butterfield v Forrester. KnightvJewett where P broke little finger playing football bc of reasonable implied assumption of risk Pure formplaintiffs can recover some percentage from liable defendants regardless of the extent of their own negligence. Palsgraf was denied recovery. the reasonable worker will walk away. a wrongdoer should be held liable for all the proximate results of his acts. if he negligently threw match the railroad would be liable for fire. rat caught fire and ignited the gasoline and killed employee. (see Davies v Mann). Assumption of risk. D was neg. for policy DEFENSES TO NEGLIGENCE: Contributory Negligence: Complete defense. Andrews says she was owed a duty and analyzed the case in proximate cause terms. although at a certain point of risk. he was fully capable of appreciating the risk. Comparative Negligence: comparative negligence is normally a creature of statute. I will still clearly be held liable and won’t be able to escape on proximate cause grounds. In almost all states. contributory negligence has been replaced by some form of comparative negligence. MillsvArmstrong. Generally. Apportionment of Liability § 7. Cardozo used duty analysis to reject Palsgraf claim. so P does not appear to have been contributorily negligent. by contract or otherwise. he may be barred from recovering for the damages that could have been avoided. you will still be held liable. If the intervening force is characterized as superseding(see below). negligent. and it wasn’t that dangerous to be closed. and P placed himself in helpless or inattentive peril. If the plaintiff is unable to collect a co-tortfeasor's portion of the liability. . D is liable!) (4) Injury need not be likely to happen to be foreseeable in proximate cause analysis.Unlike contributory negligence where you do not need to be aware of the danger a reasonable person would be aware of. LeRoyFibre v Chicago. “Acting in concert”(see See.g. Express Versus Implied Assumption of Risk: Express assumption of risk exists when. E. each joint tortfeasor is “jointly and severally” liable for the plaintiff's total damages.they say ticket isn’t enough to assume risk even if there was a warning. willful or wanton conduct. Obstetrics&gynecologistsvPepper. (e. and which is a legally contributing cause . Modified Form. and voluntarily got on it. and D has last clear chance to avoid the accident. Under traditional common law. so he assumed it. It was not liable for the unforeseeable fire which destroyed the dock. Assumption of risk: The modern trend is to allow implied assumption of risk to be absorbed into comparative negligence.Standard guidelines for proximate cause: (1) If P’s injury is truly beyond the type of harm to be expected from the defendant’s conduct. proximate cause is not established even though the type of harm is foreseeable. it will not cut off the liability of a defendant who negligently exposes the plaintiff to that risk…see Ilines v Garrell) In WatsonvKentucky& Indiana Bridge. the P will prob go uncompensated. Not available to the D if the P’s injury did not result from a hazard w/ respect to which the plaintiff failed to exercise reasonable care 2. see pg 375 for criteria. How defendant won’t pay even if the harm is foreseeableSay a guy negligently causes a factory fire which is foreseeable.
Others have something of a middle ground. SETTLEMENT: old rule: releasing one tort feasor released them all.Purpose of settling is peace of mind 2. they will impose liability. see Mitchell v Rochester Railway) 1st approach: Under the zone-of-danger rule. Benefits of this: 1. situations lacking either impact or a threat of physical danger to the plaintiff. even for intentional wrongs. Some jurisdictions have flirted with a much broader recovery for pure emotional distress .comparative negligence does not necessarily abolish joint and several liability. For example. and (3) are closely related to the victim. not scope. they required Dillion’s 3rd prong to mean spouses and siblings bc of states interest in promoting marriage. Intentional torts: If a court takes a broad view of the costs enterprises should absorb. “Independent acts cause indivisible injury”:(see Bartlett v.” This has a downside though bc the insolvent defendant is now hurts the P. [See Restatement (Third) of Torts. and argue prox cause. Reallocating the uncollectible share: some states fine tune their allocation scheme so that the uncollectable part is allocated amongst all parties based on percentage fault. 1. Be near scene of accident (2) have shock from contemporaneous sensory perception of the accident. a plaintiff can readily recover for mental distress occasioned by the negligent handling of a close relative's corpse. at least in part. Exceptions: Non delegable duties(see Colmenares v Sun Alliance). which eliminates the need for contribution entirely bc no defendant is forced to pay more than his “share. suits. 2nd approach: Dillon v Legg approach. cont.this case reps the traditional ‘no-contribution’ rule. and serious proof problems such as the possibility of multiple causes. which says you have a right to contribution and how much. v SuperiorCourt. was the use of force unexpectable or not?(5) common trend is to also include incidental acts during lunch or smoke breaks.proportionate share approach (see majority above). 3. so employer can be liable. Must work in “scope of employment. he is as liable as the individual who actually committed the physical acts of the tort. even if that increases the percentage of the damages for which the remaining defendants were originally liable. . which endorses this method of apportionment. If there is unusual danger and requires special precautions. Risk of impact rule: Majority: allow recovery for mental distress if the plaintiff was at risk of physical impact and suffered a physical manifestation of the distress. Recovery if: 1. The allocation though should be based on each person’s comparative fault. NIED: In certain limited circumstances. exceptions include: one party is primarily responsible/one does not join in the wrong but is held responsible/the principle cause was the result of the first wrongdoers act. o Allocation of Liability/Settlement/Contribution after comparative fault: American Motorcycle Ass. While a heart attack or miscarriage is clearly adequate. Union StockYards vChicago. and assertions of stomach trouble have sufficed. Traditionally. instead of dividing liability equally by the number of joint tortfeasors. status. BYSTANDERS: (courts have struggled to strike balance between overly burdening D’s and allowing foreseeable Ps to recover) (arg anti. even though its outside scope of employment.denied claims for the NIED to an unmarried cohabitant even when he witnessed his death and was injured himself. or the erroneous notification of a close relative's death.” Often times you are employee if the employer has the right of control over the person in the performance of the work. they get irritated/flirt/fight. as determined by the fact-finder. harr. McDermottvAmClyde. of agency §220 factors: (1)How much supervisory control? (2)is actor engaged in distinct operation/business?(3)is the work done by a no body or a super specialist?(4)who supplies the tools? (5) how long is the hiring for?(6) hourly pay. sometimes referred to as being within the “zone of impact” or the “zone of danger. Majority: abandoned the impact requirement. the defendant's negligence must have caused some form of physical impact on the plaintiff's person. seamen will get drunk. tortsBouncer. In the place of restrictions such as impact or presence in the danger zone. v. Modern Rule: most states have a right to contribution by statute or judicial decision. This results in the remaining joint tortfeasors paying the full damage amount actually awarded to the plaintiff minus the settling defendant's payment. assuming you can show the other tort-feasor is also liable. Affiliated Psychiatric Medical Clinic) Recovery for Fear of Future Physical Harm Should emotional distress damages should be recovered for the fear of future physical harm? Most courts are wary of permitting recovery due to the difficulty of measuring damages. but not if there is implied/apparent authority. is the work part of employer’s business? (8)what do the parties think? Is he within scope of employment? (1) is it kind of act he is employed to perform? (2) occurred substantially within the authorized time and space limits? (3)actuated.” Elden v Sheldon. but we do expect good faith and we do want incentive to settle. Economically speaking. If an individual intentionally aids or encourages another to commit a tort. others reallocate is just on other tortfeasors.] Minority approach: allows the settling defendant's payment to be deducted from the final total damages owed to the plaintiff. both sides win. (1) HMO must hold itself out to be a provider of health care w/o informing the patient that the physicians are ind. brawls at work are harder but some courts will include this in incidental things bc these things happen.” Most states also require that the victim's mental distress be sufficiently severe to cause physical symptoms of the distress. this case did not fall into any of these exceptions.pro tanto setoff w/ right of contribution against settling defendant (discourages settlement) 2. potentially crushing liability. people won’t stop being people. or by the job? (7)if employer is in business. Vicarious Liability: Frolic or Detour? A defendant may be jointly liable for the actions of another through vicarious liability. such severe physical manifestations are not required. Ultimately. they can find the owner liable for the contractors torts in the course of such activities. vic lia doesn’t exist with independent contractors.Burlington industries-even though not in scope of employment.deny connection between distress and def’s conduct and blame another event for the harm or admit cause in fact. or if they emphasize personal motivation of the tortfeasor and deny recovery. he has the money and he is best equip to handle it bc he can incorporate the cost into the price of the product.is the tort equivalent of being a criminal accessory or co-conspirator.Courts hold vicarious liability for some int. cont. repossessers (they assault people). The idea is that you do work for you boss’s benefit. Schechter. Special Cases: Some courts will do this. (See Marlene F. and we don’t like doing that. Most states today only require that the plaintiff have been in risk of physical impact. this reached jury bc they had a criminal background.dispensing with a requirement of physical manifestations and broadly defining the class of proper plaintiffs. Schreiner). 2 defenses: If the employer exercised reasonable care and 2. where the owner may delegate the work but cannot delegate away the liability. If you(victim) did everything u cud after u found out.)(fright is not good enough. Implied= HMO exerted sufficient control over the physicians so as to negate their ind.No impact required.3 options to determine credit. Effects of settlement on contribution: §4b of Uniform Act says settling tortfeasor doesn’t have to contribute. 3rd approach: The 3rd Restatement §47-“(a) perceives the event contemporaneously and (b) is a close family member of the person suffering the bodily injury. Apparent=(from Gilbert v Sycamore. but they get to avoid the risk of trial. and (2) patient must have relied on this. Apportionment Liability § 16.normally there is a good faith requirement(§4).pro tanto w/o contribution (may lead to inequitably apportionments) 3. many closely modeled on the 55’ UniformContributionAmongTortfeasorsAct. Majority approach: the settling defendant's percentage of fault. Some courts have adopted several liability. negligently inflicted mental distress that does not follow from physical harm is recognized as a basis for recovery. Is he an Employee or Ind. New Mexico Welding Supply) Two or more individuals who act independently but whose acts cause a single indivisible tortious injury are also joint tortfeasors. these states permit recovery for mental distress to all foreseeable plaintiffs. as a prerequisite to recovery for mental distress. The impact need not itself cause physical injury. so he should be liable. bc they are related in a general way to accomplish work. Petrovich-gen. This is bad bc if X settles for 2k. Enforcement: (show he is liable) Implead him or bring a new suit against him. Independent Contractors-generally owners are not liable for the torts of independent contractors. This “zone of danger” requirement allows the plaintiff to recover for mental distress caused by near misses. where a plaintiff suffering mental distress is owed a duty provided she can show the existence of a pre-existing duty. Broadest Direct Recovery: A few jurisdictions employ general notions of foreseeability. LisaMvHenry Mayo-Hosp not liable bc it was intent. to serve the master? (4) If force is used by servant against another. is deducted from the damages awarded the plaintiff regardless of the actual cash payment made by the settling defendant to the plaintiff. and not in physical risk. Contractor?2nd re. Employers are liable as supervisors for creating hostile work environment in sex. it will depend on the “differing judgment about the desirability of holding an employer liable for his subordinates’ wayward behavior” (Faragher v City of Boca Raton). CONTRIBUTION: Old Rule: No-contribution necessary. Y may be liable for the rest which may be 98k on a 100k judgment.This case involves the possibility of holding employers responsible for negligent hiring. liability is divided by the proportion of responsibility each tortfeasor bears to the plaintiff for his injury. Most of the states following this approach also continue to require that the bystanderplaintiff suffer some physical manifestation of her distress. Settling party cannot seek contribution in great majority of times. ALLOCATION: Under a comparative approach. Contractor’s independence does not always absolve the owner of responsibility since courts often refuse for policy reasons to allow owners to wash their hands of matter by hiring out the work. tort and very unforeseeable at that. the plaintiff can recover for emotional harm suffered from witnessing negligently inflicted harm causing death or serious injury to another (generally a close relative) when she is in a position to fear for her own safety. Jurisdictions utilizing this approach generally require a “good faith” hearing to confirm that the settlement is not a conspiracy by the plaintiff and the settling defendant to make another defendant pay an excessive share. (public works) in the work and is done for owners benefit.promotes settlements. DIRECT ACTIONS: Impact rule: minority: retain that the victim must suffer physical contact by the defendant's negligence to recover. Vicarious liability automatically imposes tort responsibility on a defendant because of his relationship with the wrongdoer. sexual harassment cases are mixed. Employers/employees The most frequent example of vicarious liability is when employers are held liable under a theory of respondeat superior for the actions of (1)employees within the (2)scope of their employment (seeFruit v. Ira Bushey-D bears loss bc court says we are looking for foreseeability. reasoning that its artificiality creates an incentive for overly creative pleading and excessive litigation.
childhood is subjective Daniels v Evans(153)children engaged in adult activities held to adult standard (minor driving is reasonable driver) Holland v Pitochelli(153) teaching a kid to drive you know they do not have same standard as adults (because new) and so no liability if aware of that o Breuing v American Family(158) if know that a person is crazy then have to account for that (woman thought she saw batman) Calculus of Risk o Blyth v Birmingham(166) no negligence because acted prudently and can not expect coldest winter ever (also they were statutorily compelled to put in the pipes so court reluctant to make them liable) o Eckert v LIRR(167) Hand formula does not always work because how to value human life. this case involved a towing accident (introduction of Hand formula) Lyons v Midnight Sun(182)reasonable man incorporates the reasonable emergency. Paul(195) can not hold people to standards they impose on themselves that are stricter than law because court encourages people to do more but this would createosborn a perverse incentive not to o Brune v Belinkoff(205) can’t only look at area but want a national standard for specialized medicine (doc said New Bedford has different standards than NY or Boston) o Lama v Borras(197) doctor held up to industry standard o Morilino v Medical Center of Ocean County(204) can not only use physician’s desk reference have to use field experience Statutes and Regulations o Osborne v McMasters(228) not abiding by statute gives a standard to measure negligence-drug bottle was improperly labeled (Restatement says this is negligence per se) o Stimpson v Wellington(230) has to be within the scope of things protected by statute. Strict liability and Negligence in the last half of the 19th century o Brown v Kendall(101) have to act in a way that is without all due care Powell v Fall (118) have to internalize cost of your actions (train creates hay fire) Reasonable Person o Vaughn v Menlove(145) reasonable person is not stupid even if D is (can not say are not liable because too stupid to know hay will catch fire) o o o o o o o Rylands v Fletcher (104-11) if land is used for artificial purpose you are responsible for all the damage caused (UK) Brown v Collins (115) in US only liable with artificial land use if negligent—but in most places Rylands is the law Losee v Buchanan(117) have to give up some rights in a continuously progressive society Roberts v Ring(151) child held up to standard of reasonable child of his age. like scoliosis test in school . truck hit car when swerving to try and avoid it Andrews v United(184) airlines have highest standard of care. not negligent in trying to save child stuck on tracks o o o Custom Cooley v Public Service(173) unreasonable to put many at risk to be less risky for few (woman heard noise on phone during storm and wanted a solution that was extremely dangerous to everyone else) o US v Carroll Towing(175)negligence with the side constrain of custom. overhead storage compartment was opened and something fell Titus v Bradford(188) is the customarily way the same as what a reasonable man would do (job involves jumping trains) o o o Mayhew v Sullivan(190) court can not say things about the custom of mining industry but even still would not insulate from liability (there was a hole in the dark mine and notice) o TJ Hooper(191) when customary things are easy then not adopting them is negligence (like not having a radio on a boat) Fonda v St. man said he was a chiropractor but not Uhr v East Greenbush(242) private right of action must be consistent with scheme of the statute. trucks not allowed on roads extended to damage to pipes below o Gorris v Scott(230) law about preventing disease does not create liability for overboard sheep o o o Martin v Herzog(233) law for lights on carriages and if there is none then it is what the statute is meant to prevent so negligence per se Tedla v Ellman(234) if statute for walking against traffic incorporates common law it includes the exceptions to the common law (even if not stated explicitly in statute) o Brown v Shyne(235)no license leads to ask if violation is what lead to the harm.
scope of D’s duty to P Gailbraith v Raymond. and doctors (will not put it to unconscious person to say what went wrong and duty shifts to D to say not liable) Contributory Negligence o Beems v Chicago(289) no contributory negligence if did everything the right way (like making signal to slow before jumping towards the trains) o Gyerman v US Lines(293) contributory negligence has to have been the cause of the harm for a the defense to work. awesome quality Colmenares v Sun Alliance(268) non-delegable duties makes RIL remain. man fell off bike because of neighbor’s dog Comparative Negligence By Legislation—current move is statutory imposition of comparative negligence over contributory Joint and Several Liability o Union Stock Yards v Chicago(355) where either of 2 parties or both parties are responsible for negligence then one party can not sue for indemnification. woman got drunk and D tried to use it as defense o Bohan v Ritzo(346) comparative negligence is compatible with strict liability. painting hatchets & bad racks o o Murphy v Steeplechase(322)assume the risk when you go on a ride that is meant to jostle people. Godar v Edwards(381) employer only liable if knows what is going on if intentional tort (office superiors knew in Lancaster and in Godar school board did not know what was going on) o Petrovich v Share(383) is P thinks D is employer than they can be vicariously liable (patient thinks doctor is employee of hospital but not really) Cause in Fact o NY Central v Grimstad(394) have to show that action causes the harm—even if there were life preservers he could have still died when barge captain fell into water o Zuchowitz v US(398). Reynolds v Texas(402) If a negligent act is wrong because it increases the chances that a particular harm will occur then we will assume that there is a causal link. nurses. conductor saw the man on tracks o Restatement 479. Pfaffenbach v White Plains Express(265) depends on if P knew D in car accident cases Larson v St Francis(264) if not in exclusive control of hotel then no RIL (like hotel guests throwing chairs out window) Walston v Lambersten(266) ship lost at sea is not RIL because sea has a mystic. called “the flopper” Marshall v Ranne(327) when one executes legal rights then you can not assume the risk. 480(310) If defendant knows the plaintiff is in helpless situation then they will liable for the arm if avoidable Imputed Contributory Negligence –Mills v Armstrong(313) are you considered a party to the negligence if you were there but not actually negligent (in person’s car when they crashed) Assumption of Risk o Lamson v American Axe(318) he knew the risk and continued to work so he assumed the risk. other causes eliminated. like escalator in airport that stops working Benedict v Eppley(274) woman fell after sitting on hotel chair and court said they invited her so liable o LeRoy Fibre v Chicago(300) not contributory negligence if allowed to use property in own way and RR creates fire Last Clear Chance o Fuller v Illinois Central(308) liable if you could have stopped the danger and did not.(418) liable if other things make your negligent act worse (train fire combined with other fire) o o o Piner v Superior Court(422) 2 differing causes make indivisible damage and both D are liable (woman had 2 accidents but only one injury) Summers v Tice(425) don’t know which of possible Ds and so all are liable. woman fell down stairwell) o GE v Joiner(404) Daubert standard used and evidence need only be scientific in nature but judges can decide. not complaining about poor practices does not contribute to the negligence o Padula v State(293) no contributory negligence when guards in drug rehab center do not do their job o o o o o o o o Scott v London(262) something must be in your exclusive control and this includes employees Restatement 328(263) event doe not happen without negligence. defective nut in train car and one of 2 companies could have known so both are responsible o American Motorcycle v Superior Court(359) concurrent tortfeasor can sue for joint liability comparative negligence regime—turns on divisibility of harm and jointness of casual elements o McDermott v AmClyde(368) Pro Rata contribution (have to pay percentage of ham) and removes settlement Vicarious Liability o Bushey v US(375) legal standard is foreseeability as part of the job (drunk sailor coming back to dry dock) Lancaster v Norfolk. neighbors wild boar Comparative Negligence Common Law o Li v Yellow Cab(337) CA adopts comparative negligence regime when car is hit after crossing 3 lanes of traffic (proportional liability. (hospital prescribed wrong dosage. until P is 50% at fault) o Morgan v Johnson(347) can not have comparative negligence with intentional tort. hunting trip and either of 2 people hit P . Proof of Negligence –Res Ipsa Loquitur (RIL) o 3 ideas of RIL Harm can’t be without negligence D had exclusive control No contributory negligence of P o Byrne v Boadle(261) do not have to prove negligence fact that barrel of flour fell was enough Ybarra v Spangard(276) point of RIL is can not prove who is negligent and so can sue hospital. man got cancer and could have PCB or life of smoking o Herskovits v Group Health(412) liable for decrease in survival chance—lost time is the issue because he was dying anyway but did not detect the cancer in time o Kingston v Chicago Ry.
Kenney. close relative 2. might be liable to unforeseeable harm if victim is foreseeable Restatement and Andrews’ dissent(460.H.465) sufficient causation Marshall v Nugent(467) still liable after accident because negligence has not come to rest. icy road and truck causes accidents Proximate Cause—Emotional Distress o Mitchell v Rochester(480) court said can not recover because of fright. saw accident. Trespasser—child trespasser who dies on wheel of haulage system does not create liability o Excelsior v Callan(516) Restatement Second says where on discovers or has reason to know there is a trespasser then they owe reasonable care (can’t be willful and wanton) in this case machinery was near a playground o Resatement 339(518) attractive nuisance doctrine Rowland v Christian(521) court throws out old categories in favor of ordinary negligence principles but really the same-faucet breaks the guest’s hand Gratuitous Undertakings o Coggs v Bernard(534) one of highest duties person has is one of a bailment. partner but not spouse of 10 yrs—both not) Duty to Rescue o Buch v Armory(497) no legal duty to a trespasser even if there is a moral duty. present and aware at time of harm 3. Porter. NIED must piggyback physical harm (horses’ heads) Comstock. Christy Bros(482) all cases where slight touch led to NIED or stretched to find touch Dillon v Legg(483) not zone of danger but foreseeability so if P was close to accident. child got schizophrenia after accident Polemis(452) liable because can foresee that negligent act will cause harm. speeder Tuttle v Atlantic City(440) liability of reasonable reaction will cause harm Brower v NY Central(444) D’s negligence is the reason that the plaintiff could not protect his property even in the case when there is a third party that looks like an intervening cause o Hines v Garret(442) intervening cause doesn’t matter if it was negligence that put P in that situation. taxpayer can not collect on breach of contract with city when hydrant does not have water Special Relationships o Kline v 1500 Mass(549) Landlord was the only one who could have done something about it because he is the only one in control of the common areas and so responsible when taking away doorman and making building less safe o Tarasoff v University of California(559) a therapist is required to divulge confidential information to avoid danger to others such as a crazy person killing a girl o Thompson v County of Alameda(565) no liability if could not identify the victim. Licensee. more ED than unrelated witnesses o Elden(489). v Morgan(513) once you are dependant on the state then they may have liability but if no state dutythen no liability (this is about foster system but similar to the 911 case) Duties of Owners and Occupiers o Addie v Dumbreck(513) 3 categories of people: Invitee. cargo exploded when plank fell into petrol storage Wagon Mound 1(471) no liability because what matters is foreseeability of damages. rescue was not reckless o Steinghauser v Hertz(477) in general take the P as you find him. cases of brandy are spilled Erie v Stewart(536) when rely on people something and then not there you are liable for the harm that occurs (there was no attendant to warn that train was coming) o Marsalis v LaSalle(539) When you volunteer to help somebody you are then obligated to do so non-negligently-said that would lock up cat to make sure it did not have rabies o Moch v Rensselear(541) no liability for nonfeasance only misfeasance. Trombetta(491) strictly define relative (aunt who raised from age 11. did not know who kid in juvi was going to kill Conversion o Poggi v Scott(569) no legal right to the property even if did not know and so conversion (sold barrels of expensive wine) o o o Hurley v Eddingfield(499) can not force a doctor to practice medicine Yania v Bigan(500) absorb the cost when you created the condition and did not rescue o o o Thorne v Deas(535) not liable for nonfeasance (D said would insure ship and did not and then ship crashed) o o o Animals Moore v University of California(573) doctor is a special relationship and so duty to disclose (used the spleen for medical advances) Greenberg v Miami Children’s Hospital(578) no liability if donate the DNA voluntarily. peril is imminent. oil spill led to entire harbor on fire Wagon Mound 2(474) liability because court says is foreseeable even if chances are slight (new judges now) Palsgraf v LIRR(456) no liability to unforeseeable victim. 8 year old on property K. train passed stop and girl was raped Wagner v International(450) liable for rescuers if one who created apparent peril.o Skipworth v Lead Industries(428) did not adopt market share liability because all named D have to be potential tortfeasors which was not the case can not blame all lead paint makers for 120 years Proximate Cause—Physical Injury o Ryan v NY Central RR(436) natural and expected liability. they do not own it anymore Kremen v Cohen(580) can have conversion of internet domain names . reasonable person known of the peril. related to victim (mother and sister saw girl get killed) o Thing v LaChusa(489) bright line rule when mother saw her daughter get injured: 1. train set fire to RR’s shed but it spread to other property o o o o o o o o o o o Berry v Sugar Notch Borough(446) if the negligence is the type that leads to the harm then there is liability.
knowing that –bronco case because car is half fiberboard . street. square. canal. basin. or highway o Rogers v Elliot(622) nuisance should be judged based on what would be bothersome to the ordinary person and not to specific person’s sensibilities (church bell caused convulsion) o Puritan Holding(613). stream.(793) hard to determine lost wages for a child (church van accident and 1 sister killed another paralyzed) o Kemzey v Peters(824) punitive damages do not need to take into account D’s net worth (security guard hit man in bowling alley). E. o Gehrts v Bateen(581) domesticated animals do no lead to strict liability (dog bit a person) Ultrahazardous or Abnormally Dangerous Activities o Spano v Perini(589) liability in ultrahazardous activity (dynamite is just such a thing)—garage blown up by dynamite o o o Restatement 3rd(595) if creates a foreseeable highly significant risk of foreseeable harm even when reasonable care is exercised by all actors and the matter is not common usage o Yukon v Firearm’s Fund(608) may be liable for somebody’s intentional tort (thieves stole the dynamite) Indiana Harbor v American Cyanamid(599) no liability if could be avoided. bay. 7 reasons for giving punitive damages • Compensatory damages don’t always compensate fully because there is something that has no social value so over-deterrence is not an issue • • • • • • To make sure tortious conduct is not under-deterred Make sure people channel transactions through the market Judgment equal to harm done will under-deter Express the abhorrence of defendant’s act by the community Relieve pressure of criminal justice system Prevent self defensive fighting Rono v Ford(829) willful and wanton. not up to manufacturers but shippers (train leak) Madsen v East Jordan(607) no strict liability if damage is not the type anticipated by the activity (minks killed kittens) Private Nuisance o Vogel v Grant(608) nuisance seems to be a claim that is bundled with other (like trespass) . Webb(638) it is hard to make a huge cattle farm move and so pay economic damages instead Boomer v Atlantic Cement(629) don’t have to suspend actions for a nuisance but pay for damages (cement company created a nuisance for P because of vibrations and dust) Public Nuisance o 532 Madison Ave v Finlandia(641) in public nuisance you injury but be different (in kind) than everyone else’s (building collapse) Camden County v Beretta(646) manufacturer can not be a nuisance if the good is removed from them and used for criminal acts (country tries to sue for manufacturing more guns than the legal market can absorb Products Liability o Winterbottom v Wright(655) initially recovery was denied if no privity with the vendor or manufacturer-postal carriage crash o o Union Oil(644). Adkins v Thomas(614) depreciation of market value is not an actionable nuisance claim o o o o Fountainebleau v 45-25(618) court does not want to protect business (as in how well the business does) in the same way it does not want to protect property values (competing hotel builds addition that blocks pool) o Prah v Maretti(620) in Wisconsin you have a right to some light Ensign v Walls(625) even though D was there first her business was a nuisance and she had to stop raising the dogs Spur Industries v Del. cites to Restatement §821D (cows are upset but extra electricity) o Copart v Con Ed(615) no nuisance if there is no other claim (emissions damaged finishes to cars) o California Civil Code §3479(613) Anything injurious to health including but not limited to: Illegal sale of controlled substances • Crack house or whore house is a classic example of nuisance Indecent or offensive to the senses Obstruction to the free use of property so as to interfere with the comfortable enjoyment Unlawfully obstructs free passage or use of any navigable river. Exxon Valdez645) commercial fisherman are affected in a different way than others with water pollution o o o Damages o MacPherson v Buick Motor(657) liability where you are negligent about a product and there will be an immanent danger Escola v Coca Cola(665) manufacturers can be strictly liable because they are in best position to guard against harm (coke exploded on waitress) o Henningson v Bloomfield Motors(671) loosen privity requirement (can foresee that man’s wife will drive car) Volkswagen v Young(704) traditional negligence applies for car designs if defect is known to manufacturer that could enhance injuries in an accident Pain and Suffering O’Shea v Riverway Towing(783) can have lost future wages even if no past wages (woman was a cook and hurt leg) Wrongful Death and Loss of Consortium –really this was in other damages because people in general sue for wrongful death as the estate and in many cases that is also the survivors who then sue for loss of consortium o Punitive Damages McDougald v Garber(774) need to be aware to recover for pain and suffering so can not recover if in coma McGinly v US(291) no duty to mitigate if it is not guaranteed to help (do not have to undergo high surgery if might not work) Duncan v Kansas City Ry. public park.
3 guidelines of BMW v Gore • Degree of reprehensibility • • Disparity between the actual harm and the punitive damages awarded (single digit ratio) Difference between these damages and those awarded in similar cases . State Farm v Campbell(831) how to calculate punitive damages (insurance company would not settle in car accident).