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Intentional Torts

I. Common Law
a. Case of the Thorns
i. Recall: P brought a writ of trespass against D, who had cut thorns from his hedge on his own land
that lay beside P’s land of five acres. The thorns fell upon P’s land and D removed them as soon
as he could, which constitutes the trespass onto P’s land. (Remember the time – in 1466, land was
the only thing of value, presence was enough to be an injury.)
ii. Lesson: If you injure someone, you’re liable  no matter if it is intended. Absolute Liability.
iii. Side note: avoidance is not an issue in Thorns (“if it could have been avoided”) – this is dicta.
b. Dryller v. Schottum (Hypo)
i. D did not shoot P on purpose (he tripped) – could he have avoided it? But avoidance is
not the issue on Thorns, it is dicta. How persuasive is dicta? Sometimes very persuasive.
c. Stuk v. Leever (Hypo)
i. 1st case suggesting strict liability is not what torts is all about
ii. Difference between trespass and trespass on the case (action on the case) – trespass on
the case is a different case.
II. Liability based on fault – does fault matter in tort?
a. Weaver v. Ward
i. “Although it is agreed that if men tilt or turney in the presence of the Kind, or if two masters of
defense playing their prizes kill one another, that this shall be no felony, since these acts are not
committed with a felonious mind. However, this is not the case in trespass, which tends only to
give damages according to hurt or loss. No man shall be excused of a trespass except if it may be
judged entirely without his fault.”
ii. There may be no criminal activity because of the absence of the felonious mind, but D is still
liable in trespass unless it is utterly not his fault.
iii. For D to be without fault, you have to find some1 else to be responsible (either P or a 3rd party).
iv. The precedents don’t apply here b/c it is not a crim case, it is a civil case, & D is not utterly
without fault.
v. In this case, there’s a suggestion that fault matters. Tort law moved from absolute liability to the
possibility that if you weren’t at fault, you wouldn’t have to pay.
vi. To be utterly without fault, it has to be inevitable, and the Ct gives 2 examples: (1) if someone
grabs your arm & hits another person; (2) if P had run into the shot.
vii. D has to demonstrate fault or lack thereof.
b. Brown v. Kendall - ** leading case in how we do personal injury law, major transition in the law
i. Recall: Two dogs owned by P and D were fighting. D tried to separate them with a stick. In
doing so, he backed up toward P and in raising his stick over his shoulder, hit P in the eye and
injured him. Action of trespass for assault and battery.
ii. The trial ct said D had the burden of proving extraordinary care (The controversy between
the parties: whether it was necessary or proper for D to interfere in the fight; whether the
interference, if called for, was in proper manner, and what degree of care was exercised by each
party on the occasion.)
iii. But we can’t tell how the jury decided because the burden had been on D when it should have
been on P. Burden to show carelessness is on P.
iv. Liability must be based upon legal fault.
III. Battery
a. Cole v. Turner
i. Recall: the reasoning/rule is that the least touching of another in anger is a battery.
Battery assumes a contact.
ii. Restatement (Second) of Torts – extremely influential
b. Battery: Harmful Contact:
i. Intent to cause harmful or offensive contact with a person
ii. Harmful or offensive contact
1. Injury is not an element of intent. Battery liable for unintended or unforeseen
injuries.

2. Contact with a person can be satisfied with something “so connected as to be part
of the person” (Fisher v. Carrousel)
c. Intent:
i. Purpose to cause the prohibited result, or
ii. Substantial certainty that the prohibited result will occur
1. [For battery, the prohibited result is the harmful or offensive touching, not the
particular injury.]
iii. Neither a good faith mistake (Ranson v. Kitner) nor mental illness (insanity) (McGuire v.
Almy) eliminate intent
iv. Transferred Doctrine of Intent: the intent for any of the 5 original torts can be substituted
for intent for any 5 original accomplished [tort to tort, person to person, different tort to
different person]
IV. Intent
a. Garratt v. Dailey
i. Recall: D, age 5 years 9 months, was visiting with P’s sister, an adult, and P in the back yard of
P’s home. P contends that, as she began to sit down on a lawn chair, D deliberately pulled it out
from under her. D alleges no intent to cause harmful or offensive contact.
ii. Issue: what level of knowledge that an act will cause harm constitutes intent.
iii. Holding: Volitional act  if you are substantially certain that harmful touching will
occur, then this constitutes intent. (Side note: the touching can be direct or indirect, either
is sufficient.)
iv. The case is remanded – the 2nd time around, P wins, since D knew with substantial
certainty that P would hit the ground. The substantial certainty is in regard to the
touching.
v. Lesson: Intention, in any tort (this happens to be a battery) generally, can be either (1)
purpose or (2) substantial certainty of the result.
vi. Hypo: what if the child was 3.5 yrs old? In Fromenthal v. Clark, 2 yrs old was too young
to form intent. At what age is a child capable of forming substantial certainty?
vii. Hypo: What if a 3.5 yr old was mad at the babysitter and bit her, giving her an infection?
1. This is a purpose case – he bit her on purpose. Not the same as substantial
certainty.
b. Ranson v. Kitner
i. Recall: Appellants were hunting wolves and mistakenly killed appellee’s dog.
ii. P’s complaint in trespass. D’s affirmative defense: that it was a good faith mistake,
lacking intent. But there is no intent necessary for trespass.
iii. Issue: Whether a good faith mistake means that there isn’t intent necessary for trespass.
iv. Intent in this case is for the trespass, by shooting.
v. This was not a cause of action for battery because battery is harmful/offensive contact to
a person.
vi. Does making a mistake mean no intent?
1. Intent is different from motive. Intent has to do with the action.
2. He intended to pull the trigger, even though is motive was to kill a wolf, not a dog
3. A good faith mistake doesn’t get you out of intent.
c. McGuire v. Almy
i. Recall: Insane person struck nurse and caused injury. Issue: Whether an insane person is
liable for tort – assault and battery.
ii. Tort law – if someone gets hurt, there ought to be a way to make them whole.
iii. A person is liable for injuries that are not intended or not foreseeable, but injury is not an
element in intentional tort, there is no need to prove an injury.
d. Fisher v. Carrousel Motor Hotel
i. Recall: employee of D snatched a plate from P’s hand and shouted that “Negroes could
not be served in this club.” P sues for assault and battery.

ii. Issue: Whether there must be an actual touching of the person to constitute a battery; and
Whether P was entitled to compensatory damages for mental suffering (even though no
physical injury). Holding: Yes and Yes (invasion of a person’s dignity).
iii. Lesson: this case illuminates that the idea of “person” is broadened – broadens the 2nd
element of battery: Harmful/offensive contact to a person or customarily an extension of
the person.
V. Assault
a. Elements:
i. Intent to cause apprehension of imminent contact
ii. Reasonable apprehension (this is based on the physical facts) of imminent contact.
1. “Reasonable apprehension” requires:
a. Apparent present ability to accomplish contact
b. Threat must be present & unconditional [illegality exception – crime]
2. Words alone do not constitute an assault. Future threats do not constitute.
3. Usually a conditional threat is not an assault unless it’s a crime (i.e. “I’m going to
hit you if you don’t give me your $” is committing a crime, but “I’m going to hit
you if you don’t leave the room” is different, since there’s a condition you can
perform to avoid battery.)
b. I de S et Ux v. W de S
i. Cause of action for trespass – P’s claim for trespass by assault on the wife (D struck with
his hatchet but did not hit her when she stuck her head out the window to tell him the
tavern was closed). D says he’s not liable since no harm was done.
ii. Issue: Whether actually doing physical injury to the person is a necessary element of
trespass (necessary for the recovery of trespass for assault). Holding: No, it is not
necessary to do physical harm in order to warrant trespass for assault.
iii. In modern terms: The judge said no harm, no trespass. Other Judge then says that P wins
as a matter of law – although he did no harm, he still made an assault upon the wife, and
for an assault, you recover damages.
iv. HYPO: W de S steps forward, slams the end of the axe into the door (knocking) & yells
“bitch” with no intent to hurt or scare her (not knowing she was there). Is he nevertheless
liable for assault?
1. If there is no intent, 1 of the elements of assault is missing… But this is a still a
trespass (since he steps forward onto the steps and keeps knocking).
2. So the Doctrine of Transferred Intent comes in here: If you intend to accomplish 1
of the 5 original torts and accomplish another, the intent for the 1 you did
transfers to the other (Only for these 5: battery, assault, false imprisonment,
trespass to land, trespass to chattels).
3. So W de S is liable for assault, since the intent from trespass transfers to assault.
c. Western Union Telegraph v. Hill
i. Recall: “If you come back here and let me love you and pet you, I will fix your clock.” P
sues for damages for assault on his wife. Jury decides in favor of P, but the decision is
reversed. There was no imminent apprehension in this case (facts show that D could not
reach the wife).
ii. Issue: Are these facts sufficient – could he reach over the desk and thus touch her? The ct
here says that “What it does take to constitute an assault is an unlawful attempt to commit
a battery, incomplete by reason of some intervening cause.” – This is wrong!
d. Spivey v. Battaglia
i. P and D worked together. At lunch, D, knowing P was shy and intending to tease her,
gave her a “friendly unsolicited hug,” after which she suffered pain and paralyzation on
her face. P brought suit for (1) negligence and (2) assault and battery. (Note – there is no
intent in negligence).

iii. Lost 30 lbs. Big Town Nursing Home v. Reasonable avenue of escape c. P was held against his will. the unaware P may recover only if suffered physical injury from false imprisonment. In some jurisdictions (i. Recall: D took a stick and threw it at a boy on top of his shed. Doctrine of Transferred Intent. Issue: whether P was falsely imprisoned. not offensive contact. Words alone may be sufficient. D intended to restrain him. The ct here is focusing on recompense. ii. Recall: P was locked up in nursing home for 51 days. not P) b. ii. Battery is an intent to cause harmful or offensive contact  but the ct says that this is not what D intended. Liability is established in this case. 1. iii. Talmage v. Are these instructions correct that if a person intends to hit one person but hits another is liable for the injury? D had purpose. The jury ruled in favor of P. 3. Remember the purpose of torts: (1) if someone if hurt. even if it’s a person you didn’t intend to hurt. e. ii. P can recover even if unaware of restraint. d.e. when there were no threats of force. iii. (2) want to influence how ppl in society should behave. causing him to lose sight in one eye. VI. P claims false imprisonment based on the situation and the words of moral obligation. they should get recompensed. tried numerous times to escape and was restrained against his will. They were given these instructions: if you intend to hit A and hit B. D appeals and says these instructions are wrong. It is something D has to plead and prove. and there is one. P must be aware of restraint. But here the ct said they did not. But the ct got something wrong: 1. In some jurisdictions. then you’re liable for B’s injury. P was hired as a sales clerk and was accused of stealing jewelry. D says he’s a batterer and thus has intent – the statute ran. Hardy v. Awareness: i. Elements: i. Was led into the office where she was confronted with managers and maybe a cop. Threat of future action is not enough. 2. Restraint 1. Justification ii. ii. But the teasing could be argued as offensive. Ct finds ample evidence. False Imprisonment (see also False Imprisonment Hypos in notes) a. If you intend a harmful/offensive contact. In some jurisdictions. if they amt to duress. Smith i. 3. D claims insufficient facts/evidence for the findings of liability and amt of damages. words alone are insufficient (moral persuasion is not restraint) 2. The 1 thing the ct got wrong: harmful contact was the only aspect they focused on. Newman i. NY). Intent to restrain ii. so he should be home free. because she was shy and he knew it. it doesn’t matter who you hurt. Restraint can be direct or indirect. . and instead it hit P. LaBelle’s i. e. Restraint must be unlawful – no legal justification (this is not actually an element. iii. Defenses for which D has the burden of persuasion: i. ii. Issue: should exemplary damages be available in this type of case? iv. and asked to take a lie detector test. 2.

you’ll have to find out the best way you can. g. “Presence” is required in many jurisdictions (i. P & kids wanted out. did not show severe emotional distress. P’s boss. There are no facts here from which a reasonable person could intend severe emotional distress. verbally and physically mimicked his impediment. Facts matter. not just moral persuasion. Words alone are unlikely to be sufficient. There was no assault here – this was a future threat. P. Intent to cause emotional distress in an individual ii. Intentional Affliction of Emotional Distress – a “modern” tort a.e. But the ct found it clear that this was not why she was arrested. Jones i. Siliznoff counterclaimed with the affirmative defense (he has the burden to persuade) – that he signed the noted because of duress. D (P above) would deny – no assault occurred. Issue: whether she was physically restrained… If failure to provide transportation is physical restraint. that is an affirmative defense to $ for the note. D was the leader and offered her a ride back to the U. c. No false imprisonment – only moral persuasion. Siliznoff signed the notes. Sandford i. Moral persuasion is not enough. Harris v. There is no statute or case law that requires a citizen to produce a license on demand (unless driving). But if you have a reasonable way to escape. Recall: P was convicted under the leash law.” P alleges the insult caused an ensuing heart attack and aggravation of a pre-existing heart disease. Ds didn’t know she was there) b. then you are not restrained. e. An officer’s uniform can be enough (Doctrine of Apparent Authority). Elements: i. on his yacht. and the conduct must be severe and outrageous. Causal connection between the conduct and the distress 1. but then wouldn’t give her a boat to transport her to land. State Rubbish Collectors v. Taylor v. Recall: Speech impediment. Slocum v. D. Recall: religious sect case. Whittaker v. Siliznoff i. Groves i. Counterclaim: P (D above) sues for assault. Yes . She was arrested for not producing her license (the officer grabbed her arm and arrested her). but didn’t pay – State Rubbish asserts a contract.S. Vallelunga . Also. Rule: When a claim of false arrest is made. “Outrageous” and “Severe” are fact-laden issues 2. Enright v. f. the fact that he was a police officer constitutes restraint. P argues the context in which she arrived held her. ii. D’s employee: “If you want to know the price. VII. 1. iii. Outrageous conduct iii. causing heightened nervousness and a worsening in the stutter. you stink to me. ii. iv. in Taylor. d. 4. So Judge Traynor invents a tort – Intentional Infliction of Emotional Distress: must have intent to create (& succeed in creating) severe and emotional distress. If D can prove duress. Food Fair Store of FL i. ii.there is no reasonable avenue of escape. There was no causal connection in the case that the conduct was outrageous enough to cause severe emotional distress. Severe emotional distress iv. a defense that the arrest was done because of an unrelated conviction is not acceptable. on these facts. ii. 2. 3. iii.

it can be contextual. A continuing trespass. Bengals’ offensive back. Dougherty v. Can they? Yes. Recall: immigrant receiving immunization. he repeatedly shot at ducks in flight over P’s land. Custom can determine consent v. Stepp i. ii. Trespass to Chattels a. IX. b. Sutherland i. c. because authorization has expired. conduct must be in the presence of P. iii. Hackbart v. v. Cincinnati Bengals i. Board of Road Com’rs i. iv. There was no physical disability or injury that resulted from the mental distress. ii. She alleges that as she suffered severe fright and emotional distress as a result. Sometimes P’s burden ii. hit P when the game was not in play. P should have pled that D had the intent to beat up dad and thus cause emotional distress to his family. Issue: Is the air above your land your land in the sense that if someone unauthorized is on it. Compuserve v. Rules can influence consent vi. which was dismissed because of governmental immunity) – the recovery is based on the trespass. P sues for battery. P’s husband died because of an unremoved post of the snow fence. Hypo: Pace wants to maintain trespass to chattels to a drug prescription co. (2) P is present. is it a trespass? Yes. Cunard i. ii. It could be argued that Pace’s chattel (the server) has been compromised/stolen by someone who floods it. Emergency can create consent vii. P holding her arm up was sufficient consent. it is a trespass. i. Trespass to Land a. ii. Most states require that: (1) the action be directed at the individual. Air above land is subject to trespass. Clark. . O’Brien v. probably. She held up her arm to be vaccinated. The law infers some damage to every intentional and unauthorized entry (even if no harm is actually done). Consent i. This case is about the intent of the actor. Consent may be “informed”  deceit can be by omission b. Did P consent here? The trial ct said he consented to what goes on in the game. it’s not a trespass… Can it become a trespass? Yes. Although D wasn’t standing on P’s property while duck hunting. But recovery does not depend on the foreseeability of the injury (this is negligence. Conduct can constitute consent iv. Trespass to chattels (which had been dead) now matters in the internet age. who continuously emails via Pace’s server. X. So if you have authorized entry to go on someone’s land. Recall: P witnessed her father being beaten up by D (the beating caused him bodily injury). Issue: What kind of intent must be alleged in order for a bystander to recover from intentional infliction of emotional distress? Can someone watching. ii. recover? iii. After the license has ended. Can be contextual iii. Cyber Promotions i. Lesson: ** Consent need not be verbal. and seeks damages for the distress. VIII. D had permission to be on P’s land – had authorized entry. c. But sues the physician for assault and negligently vaccinating her. Transferred intent doesn’t work here because this is not one of the 5 original torts. but whose presence is unknown. Herrin v. Rogers v.

P sues for being falsely imprisoned. kids vandalize. P sues for false arrest after being called back from the parking lot. But hitting someone after the whistle was blown is not customary. ii. The fact that the battery is helpful does not make it not a battery. D searched her bag. Arlan’s Department Store i. So if the same hit happened while the game was going on. brought some random unmarried male to help him deliver P’s baby. Issue: whether justification should be permitted as an affirmative defense. XIII. The trick is figuring out if the facts are reasonable and the vicinity is immediate – applying the law to the facts in question. bus driver takes them to police station. The law has worked it out in a way that’s equitable. Sindle v. D. Putnam – no trespass because necessity is a privilege… necessity constitutes a privilege. Precedent: Ploof v. iii. Roberts i. Justification a. does he have a privilege to detain that person for a reasonable investigation of the facts? Yes. NYC Transit Authority i. i. Katko v. Defense of Property a. Consent not based upon full disclosure (deceit by omission). . Yes. ii. Vincent v. P’s physician. A merchant has a privilege to detain a customer that the merchant reasonably believes has stolen. iii. ii. D appeals because of the judge’s instructions to the jury – you may not protect against trespass with a spring gun. Williams i. Custom is the issue – it is customary in the game that these penalties happen – it’s in the rules. Lake Erie Transp. Last day of school. ii. Briney i. e. ii. Recall: P went in for surgery on right ear and came out with surgery done on left ear. XI. in their immediate vicinity. XII. Necessity – the equity approach a. iii. ii. A school bus driver has the duty to take reasonable measures for the safety and protection of both the student and the custody of public property. Bonkowski v. based on custom. d. Issue: If a merchant reasonably believes someone stole items. This was a question of privilege – you don’t have privilege with respect to setting up a spring gun to protect against trespassers. “Immediate vicinity” rule in some jurisdictions b. XIV. De May v. Reversed and remanded… opportunity to argue lack of consent. for a reasonable amt of time. P would have been said to have consented. Consent based upon deceit is not consent. There are choices in these cases – the trespasser (person in peril) chooses what is and what isn’t a necessity. Was the medical procedure justified as a matter of law? Consent or emergency would absolve liability. ii. Mohr v. but there was neither in this case. Merchant privilege i. “reasonable” suspicion and investigation ii. Recovery of Property a. iv. iii. accused of stealing. The trial ct is justified in saying this was a battery. P sues D for assault (battery – unauthorized offensive touching).

Mental state is irrelevant. precautions necessary to prevent injury. purpose used. [Judge was wrong in denying a motion for a directed verdict (giving it to a jury)] Gulf Refining Co. • Decider uses cost/benefit analysis i.R. Lubitz v. When an object is not obviously and intrinsically dangerous. which D’s employee knew. • Reasonable person standard: The care a person of ordinary prudence would take under the circumstances. Krayenbuhl – child played on an unlocked turntable (located near a local path used by the public) and was injured. B. the benefit of the utility Standard: Take into acct the type and location. Birmingham Waterworks – D installed water mains 25 yrs ago which sprung a leak b/c of severe frost – flooded P’s home. Risk-benefit analysis: weigh the danger to others v. Jury decides if the conduct is within boundaries [matter of fact]. Blyth v. Foreseeability is a jury question. & Q. In most cases. ii. Foreseeable means not probable 2. v. which results in injury to that other. caused by condition of unrepair in the bung cap. do not constitute negligence. Negligence • Elements: o Duty o Breach [negligence] o Causation o Injury • General: Negligence is when D’s conduct imposes an unreasonable risk upon another. Williams – P opened the drum of gasoline for the first time and was burned from fire. Ct held that the father could not be held liable for failure to remove the club from the yard. and how these precautions affect the benefits of the premises. Wells – Wells left a golf club lying in his yard. Standard: What the judge believes a reasonable jury would find. Need sufficient info that the injury was foreseeable by D. Foreseeability = likelihood of consequence sufficient for reasonable person to act or forebear. . Is the turntable condition one that a reasonable person may maintain under the circumstances? No. the jury decides what is fair and reasonable • Consequence must be foreseeable for conduct to be unreasonable • Unreasonable = not probable • Foreseeability = likelihood of consequence sufficient for a reasonable person to act or forebear. as a matter of law] Chicago. as a matter of law. Not that D thought it more likely than not to explode (foreseeability is not the same as legal probability) [Comes out differently than Blyth. His son used it and injured P. • Deciding Reasonableness: Judge sets boundaries [negligence or not as a matter of law]. v.  Failure to repair is negligence  This was foreseeable. D cannot be held liable for an injury that occurs from his child using it. 1. D acted as a reasonably and prudent person when first installing the mains  The damage was not foreseeable. Consequence must be foreseeable for conduct to be unreasonable. These facts. probability of injury.

McAdoo – D was driving alongside P when his tire blew out and swerved into P. Restatement 291 – When act is one which a reasonable man would recognize as involving risk to others. As a matter of law. Whether determining the condition of the tires and the reasonableness are questions of fact for the jury to decide? Yes. times have changed. Objective standard – subjective is too hard. However.] The “reasonable person” standard for negligence – Objective standard • This standard is objective  intelligence or lack thereof is not a factor (Vaughan v. Northern Pacific RR Co – same facts. Davison decision is outdated. Not reasonable because the county would run out of $ and wouldn’t be able to build roads Compare with Bartlett v. What you didn’t know as a driver is not an excuse. Matter of law (judge decides what it is a reasonable person should know) v. maturity. causing her to break free of the pier. Snohomish County – Ps crossed a bridge and drove through the railing. when precautions can be taken to lessen the risk and the expense would not be too extreme. of what a reasonable person of ordinary prudence would do under the circumstances. Menlove – D build a hay rick at the boundary of his land and was told that it could ignite. Lack of knowledge that you should have does not modify the standard. Burden < injury x probability = liability [This is what the fact-finder does for a cost-benefit analysis. P still has to be recompensed. Trimarco v. Does the custom of the industry in the absence of a rule make it a jury question? Yes. Menlove) • The knowledge imputed to a reasonable person is a matter of law for the judge • Custom can influence. . Facts matter. intelligence considered except when engaged in inherently dangerous activity/adult liability. She drifted against a tanker. • Emergency is a circumstance that can avoid liability. Instructions ruled improper b/c of subjectivity Delair v. Carroll Towing Co. matter of fact. 1.The public good necessitates the use of the RR and thus dangers are usually acceptable because of its utility. D was not negligent. The condition of the tires and reasonableness are jury questions. P was not very intelligent. Vaughan v. Witnesses state his tire was worn through to the fabric. It had earlier started to become customary for landlords to install shatterproof materials for bathroom enclosures. custom makes a jury question of what a reasonable person would do under the circumstances. Is the failure to have the bargee on the barge unreasonable under the circumstances? It is negligent not to have the bargee during daytime hrs. • A child’s age. The rick ignited and spread to P’s cottages. How do we know the tires are bad? Because the jury said so. experience. Davison v. United States v. & sank with her cargo of US flour. Claim for negligence is the insufficiency of railing to prevent the car from skidding off. Physical disability is considered. – Ds negligently shifted a barge’s mooring lines. The law is imposing a duty here – certain levels of knowledge are attributed to you. Klein – P is a tenant. There are jurisdictional differences on this issue. Question of risk-benefit analysis is a jury question. it is necessary that the owner take those precautions. the risk if unreasonable when the risk outweigh the utility of the act or the manner in which the act is done. Issue: Does the standard of care reflect this man’s intelligence? Do you take into consideration D’s level of intelligence? No. When getting out of his tub he was severely cut by the glass from the sliding door. but not be determinate.

What we learn from these cases about the reasonable person standard: • It is an objective standard • Intelligence does not modify the standard • Lack of knowledge that you should have does not modify the standard • Sudden mental illness does not modify the standard • Physical different does modify the standard • Child could modify (but not in an inherently dangerous act) • Custom influences the standard Hypo: To what standard is a person w/ Alzheimer’s held? If there’s a physical difference. The physical characteristic here changes the standard (remember. training. 175-176) • Standard in similar community (locality v. so the jury verdict was appropriate. But in Alzheimer’s there is a physical difference in the brain. – Erma Veith was subject to insane delusion and crashed into P’s truck. The instruction to the jury is at issue. Whether Burson’s precautions were the same the reasonable man would take if he were blind. 184-185) • Medical Malpractice: failure to give informed consent o Informed consent: What must be told? What a reasonable person would want to know. It is not clear which. p. intelligence. but not if there’s a mental one. The normal rule is still applicable when a sudden mental illness takes over. Cordas v. as a matter of fact. it is a law question. Breunig v. 4 p. State of Louisiana – P was injured after blind operator of a concession stand at the post office building bumped into him. this person would meet. maturity. from Menlove). Judge makes the dismissal as a matter of law.Custom is relevant but does not determine what a reasonable person would do  relevant but not controlling*** . The professional standard of care • Objective: care exercised by reasonable professional of ordinary prudence under the circumstances. Chauffeur jammed the breaks and jumped out. American Family Ins. Co. Peerless Transportation Co. Roberts v. . this conduct was not negligence. you’re entitled to a different standard. Emergency excuses liability. Here D had sufficient warning. not modified for mental condition. What causation must be proved? Reasonable patient. – thief entered chauffeur’s car and held him at gunpoint. 3. Cab mounted the sidewalk and slightly injured Ps. Robinson v. • “Best judgment” exception to liability (re-read notes 2. Lindsay – P’s thumb severed when riding on innertube pulled by D’s snowmobile which was driven by a 13 yr old. national compromise) (note 2. Custom influences what our objective standard is.it is a jury question. and experience would exercise under the same or similar circumstances.  Notice the different standard for children The child instruction does not apply when the child is engages in an inherently dangerous activity. As a matter of law. Most cts do not make any allowance for the mental illness of D – D is still judged by the standard of the reasonable person. When it’s an instruction at issue. Instruction: that it is the duty of a child to exercise the same care that a reasonably careful child of the same care that a reasonably careful child of the same age.

Negligence case – the issue has to do with the propriety of consent. . Majority: Most jurisdictions go by a blend of locality & national – in a similar community. This is a minority view. In the absence of expert testimony stating the standard of care. Swift Wings. Causation: this ct held that P has to prove not that a reasonable patient would do something else. Jury must determine the duty: 1. who did not x-ray her. Majority: Usually it is that a reasonable patient would do something else – objective standard. ii. Mrs. viii. under similar circumstances.] Hodges v. Which standard of good medical practice. Boyce v. She claimed that D failed to advise her of all the risks involved. local or national. What a prudent pilot would do under the circumstances  need expert witness to determine the norm The standard is objective – the knowledge. P experienced problems and went through 3 surgeries to fix the problem. Locality rule v. Carter – legal malpractice. – pilot and family and friend were all killed in a plane crash. Can a lawyer in good faith who uses his best judgment use this as a defense? Yes. tell a patient what a reasonable dr would disclose. training. P instituted the action alleging that Ds were negligent in prosecuting said actions in that they failed to have process properly served and also failed to procure issuance although they had 60 days. The dr who testified did not conclusively say that the failure to x-ray was a deviation from a proper standard of care. • Legal malpractice: case within a case requirement for prima facie. it has no relevance to medical practice in DC. Morrison v. This is a prospective case. of mailing the process to the Commissioner of the insurance companies. iv. Legal Malpractice – there are 2 cases before the same jury: (1) P has to show that the lawyer made a mistake which a lawyer of reasonable prudence would not have made. Inc. But this subjective and a minority. is applicable to a nationally certified medical lab. prevalent in NY for 2 decades. Heath v. MacNamara – P fainted and struck his head while standing during a procedure at a nationally certified medical lab in DC. Ct did not allow jury to try the case b/c there was not enough evidence contrary to D’s practices. D’s med expert from DC testified that they always administered the test to the patient standing. Attorney is not liable when he acts in good faith and in an honest belief that his acts and advice are well founded and in the best interest of his client. P cannot win. P has to show that the lawyer’s screw up caused the loss of the case. It is going too far to say that failure to take an x-ray of P’s ankle at the time was so far a departure from ordinary medical standards that even laymen would understand it to be gross negligence. Ds are attorneys who followed the custom. And (2) the case the lawyer screwed up would have been successful. Bradford – after a hysterectomy. or 2. you need expert testimony. Brown – medical malpractice. what a reasonable patient would want to know – this is what the jury decides vi. iii. best judgment is a defense to professional liability. [Specialists are held to an even higher standard. An expert from MI testified that the national standard of care requires that the patient sit or lie down during the test. Boyce had ankle surgery. years later went back to the dr in pain. and skill of an ordinary member of the profession in good standing. but that this patient would. In medical malpractice cases. vii. v. She went to another dr who x-rayed her and found necrosis in the bone. national rule… But even a quick look tells us that whatever relevance the locality rule had to the practice of medicine in remote rural communities. Scott v.

Negligence per se = judge instructs the jury that the statute says “X. But the regulation sets a duty. P was in the class of people intended to be protected by the statute mandating bars not to serve those who are visibly intoxicated. • Effect of statutory standard varies with jurisdiction. – customers in a bar are subject to a fight started by drunk Native Americans. The statute does not set a civil duty – can’t find negligence from serving a drunk.Failure of informed consent: 1. Complaint: bar owner didn’t comply with the statute and regulation xiii. no consent (of a reasonable person) 3. What is the legislative intent? x. and whether D breached the duty.” If D did not do “X” the jury must find him negligent. The jury must now only determine cause – what is it that caused the injury (since P was unconscious and did not know). not knowing what caused his injuries. The standard sets the duty. The statute is conclusive. D burden of persuasion on excuse • Evidence of negligence Osborne v. D gained consent without adequate info (what a reasonable patient would want to know) 2. o Sets duty as a matter of law (negligence per se) o Creates rebuttable presumption of negligence (issue of excuse) 2 versions: 1. Hypo – does the statute protect employees at the bar? RULE: A violation of a statute or regulation constitutes negligence as a matter of law when the violation results in injury to a member of the class of person intended to be protected by the legislation when the harm is of the kind which the statute or regulation was enacted to prevent. • The effect of a statutory duty of care varies in various jurisdictions. Is the injury of the kind intended to be protected against? • [Enabling statutes can create civil actions unknown to common law. Statute must apply to facts – There can only be negligence per se when the statute was intended to guard against the type of injury which occurred and the person is within the group of ppl the statute is meant to protect . cause. Is the person injured in the class of people intended to be protected? xi. • Whether a statute creates a duty applicable in civil cases is a question of law for the court ix. For liability. Injury Statutory Standards – statutes as the source of the duty of care in negligence • Criminal statutes can create a duty applicable in civil cases. The jury must find that is was negligence. A standard of care can come from a statute.] • Not all criminal statutes create a duty of care applicable in civil cases. No jury determination. Stachniewisc v. If informed. But this does not necessarily mean D is liable. xii. Does not create a civil action. P was found unconscious outside. Causation is why the case was remanded. xv. also must prove duty. McMasters – P died from the use of poison sold without a label by D’s clerk. This statute is a criminal statute. P burden of persuasion on no excuse 2. breach. since the statute fixes the legal duty. Criminal statute might not create standard of care even if injured person is in class to be protected and injury is of a kind to be protected against. injury. Reversed and remanded because the regulation creates a duty. Mar-Cam Corp. xiv.

P argues that the statute is a safety measure for the benefit of the public. so negligence isn’t for the jury. if a party violates a statutory duty. Witness reported that the windshield was clouded. xxvii. in a civil case. xix. xvii. Whether the writers of the legislation intended to protect this P against this type of occurrence. P ends up winning – statute provides a legislatively mandated excuse. D hit P with her car. that party is strictly liable. xxiii. Failure to act does not mean that there is a civil liability. xxx. Ct says there is no common law cause of action – you don’t have a duty to step in and solve a problem. xxiv. xxi. xxv. the causal chain is not broken. xviii. Criminal act in violation of a statute – The intervention of a criminal act does not necessarily interrupt the relation of cause and effect between the negligence and the injury. a reasonable jury must conclude that the failure to have lights contributed to the accident. not an antitheft measure. Zeni v. Anderson – P was walking to work on a well-used snow path with her back to oncoming traffic instead of using the sidewalk (supposedly safer to walk on the path). Affirmative defense of contributory negligence was a complete defense at this time. xxix. Failure of notice – problem with notice. Contributory Negligence per se Martin v. D did not keep to the center of the driveway. Ct says there is no statute cause of action either here. xxii. Under negligence per se. S. At issue is whether the activity was negligent. xx. If a party has violated a statutory duty. Another possibility – jury may or may not determine if that party was negligent.N. Ct decides here that negligence is a given. but P’s husband (now dead) drove without lights (night). Perry v. Issue: legislative intent is the key as to whether the standard in the statute sets forth a civil case. If the criminal act might reasonably have been foreseen at the time of the negligence. Ds somewhat knew and didn’t report it (Texas Family Code). xxviii. Herzog – P and husband were hit by D’s car coming from the opposite direction. xxvi. – kids abused at a daycare. that party has claimed the burden of going forward.  rebuttable presumption as to why she was not adhering to the statute. Issue: Whether conditions can excuse a person from complying with statutory duties.Ney v. A thief stole the cab and damaged P’s car in its flight. The ct decides as a matter of law (by looking at legislative intent) whether the standard of a statute applies. xvi.N. No liability b/c (1) language of the statute does not give specific notice as to when there is cause to do something (report the abuse) and (2) there is no proximate causal relationship between Ds’ failure to act and the injury that resulted. and S. D argues that the statute is a traffic violation. Problem with holding a person who fails to report suspected abuse civilly liable for the enormous damages the abuser inflicts. Should a standard in a criminal case apply here. P showed sufficient excuse to violate the statute and therefore no contributory negligence Possibilities of applying a statute for negligence • Negligence per se – jury gets no instruction regarding whether D was negligent . D wins. – P charged that D negligently left its cab on the street with the engine running. As a matter of law. Clearly the activity of the buggy driver (dead husband) is negligent. Yellow Cab Co. D says P’s failure to use the sidewalk constituted contributory negligence because it violated the statute.

When a dangerous condition has existed for long enough for a reasonably prudent person to have discovered it is a question of fact for the jury. This is sufficient evidence for a jury to find notice. • Rebuttal Presumption of negligence (B) – Burden of production and persuasion shifted to D. Anjou v. If you can prove the burden of production you get to go to the jury. Categories of proof • Burden of production – must produce enough evidence for a prima facie case and if there is not enough evidence. Kmart Corp. Proving a negligent act: circumstantial evidence • How much circumstantial evidence is needed to establish that D had notice of the condition creating a hazard? • Proving Negligence: Direct & Circumstantial o Direct = equal to the proposition you are trying to prove o Circumstantial = requires an inference to be equal to the proposition o Most cases are a combo • Res Ipsa Loquitur Requirements: o Event would not normally occur without negligence o Evidence sufficient to eliminate plaintiff or 3rd person negligence • P has to show duty and breach for a prima facie case. Joye v. gritty. P still has burden of persuasion. dry. – P fell on a banana skin lying on D’s platform. who knows. D must show that there is enough evidence for judge to decide. trampled banana peel as she was led down the stairs by one of the employees.R. . • Rebuttal Presumption of negligence (A) – excuse given for not following statute. Condition of banana could be new or old. The banana could have been dropped 30 seconds or 1 hr before. • Burden of persuasion – if you can’t persuade the jury then you lose. Boston & Maine R. as a matter of law. There were many passengers. Ortega v. • To avoid dismissal. Insufficient circumstantial evidence – P won originally but the Ct of Appeals reverses. Boston Elevated Railway Co. a reasonable jury must fairly conclude duty and breach. the case will be dismissed as a matter of law. No notice. – P was shopping at Kmart when he slipped on a puddle of milk. that there is an excuse. Great Atlantic and Pacific Tea Co. The floor may not have been swept for as long as 35 min. Statute violation merely established prima facie case. P claimed that because the evidence showed D has not inspected the premises in a reasonable period of time prior to the accident. Co. He did not know how old the milk was and could not present evidence showing how long it was on the floor. Directed verdict for P. therefore burden of proof is shifted to D. – P fell and slipped on a banana in A&P.  P slipped on a black. the jury could infer that the puddle was on the floor long enough for Ds employees to have discovered and remedied it. D must show enough evidence of excuse as to have it not be a matter of law and must persuade the jury that the excuse is enough to mitigate the necessity of following the statute. It is clear that D had notice as a matter of law. Banana Slip and Fall Cases Goddard v. No evidence that A&P put the banana on the floor or had actual notice of it. • Evidence of negligence – Statute creates a standard of care that the jury may but need not adopt.

W. Byrne v. precipitating cause. Res Ipsa Loquitur – the thing speaks for itself Elements: .” Restatement 328D – have to look at the type of event and the basis of the conclusion to properly analyze this. P slipped on a piece of pizza P did not have to show notice of the piece of pizza on the floor because the dangerous condition was caused by the method of sale. As a result. and the hospital after the patient suffered permanent nerve damage to his shoulder during an appendectomy. the nurses. The tire escaping would not have occurred but for a failure of reasonable care by the person or entity in control of the truck – application of res ipsa loquitur approved. there will rarely be any compensation for patients injured while unconscious. The doctrine of res ipsa loquitur simply recognizes that in rare instances an injury may permit an inference of negligence if coupled with a sufficient showing of its immediate. This is not the modern rule. Exclusive control does not apply in a hospital with an unconscious patient. . the 130-lb spare tire came out of its cradle underneath the trailer and hit P’s windshield. Ybarra v. “An injury standing alone ordinarily does not indicate negligence. As D drove over some RR tracks. Ds contend that there is no showing that the act of any particular D was the cause.Jasko v. b. Most jurisdictions follow this – res ipsa is circumstantial. Woolworth Co. Spangard – res doctrine was extended to allow a patient in a medical malpractice case to bring a res action against his surgeon. It is a reasonable inference that the chair came from some portion of the hotel. the anesthesiologist. Sullivan v. But if we accept this contention. are sufficiently eliminated by the evidence” rather than strictly on the traditional “exclusive control” language. P is permitted to sue multiple Ds b/c his condition would not have occurred without negligence on their parts and it is the burden of Ds to show that it was not his/her negligence causing the injury. No evidence. P can’t show exclusive control. there are no jury instructions on res ipsa.Event would normally not occur without their being negligence .  Ds sold pizza on wax paper to customers who stand and eat. Res ipsa loquitur (the thing speaks for itself) – the mere fact of the accident having occurred is evidence of negligence. including the conduct of the P and 3rd persons. Boadle – P was walking on a public street past D’s shop when a barrel of flour fell on him from a window. F. But a hotel does not have exclusive control – P could not eliminate the negligence of guests. Perry – P was driving behind a tractor-trailer driven by D. Larson v.No direct evidence of D’s conduct .The event that caused the injury was in the control of D at the time of the injury . McDougald v.Causes other than D evidence (P or 3rd party) eliminated by evidence. The number of those in whose care the patient is placed is not a good reason for denying him all reasonable opportunity to recover for negligent harm. Francis Hotel – P was struck by a heavy arm chair when stepping out from under the marquee of the D hotel. Crabtree – Ps son was killed as a passenger in a truck driven by D that swerved off the highway. Inference of negligence in this case is enough to go to the jury.  3 possibilities: 1. Res ipsa only happens when P cannot identify negligence. Modern cases tend to focus more on the Restatement 328(d)(1)(b) language “other responsible causes. St. Inference of negligence – enough to go to the jury a.

The Cause-in-Fact Element of Negligence • “But for” approach to relationship between negligence and injury. but the failure is the failure to prove that negligence caused the injury. and that their combined negligence caused the death. xxxi. No causal connection can be proven between the injury and the cancer. reversed and remanded on the issue of damages. Showing that your causation is possible makes this enough to get to the jury. . • Level of proof necessary for prima facie case: possible • Level of proof to prevail: more likely than not • “Substantial factor” articulation of cause-in-fact • Concurrent causes: neither alone would cause injury – either alone would cause injury • Burden shifting when P is unable to identify one of more of multiple Ds (Summers v. Herskovits v. Although negligence is clear. Group Health Cooperative – Ds were negligent in failing to diagnose P on cancer. 3. No question that D was negligent. Presumption of negligence – shifts the burden of production to D. Douglas Hereford Ranch. the possibility that it might have happened without the negligence is not enough to break the chain of cause and effect between negligence and injury. Kramer Service v. Such negligence was the proximate cause of reducing his changes of survival by 14%. No question of negligence here. Burden of persuasion (for the jury) – P has the burden to persuade the jury that it’s more likely than not that D was negligent. no “but-for” relationship. Appellant (hotel) requested an instruction to the effect that the cancer should not be taken into consideration by the jury. Cause in fact – negligence is a cause in fact of the harm to another if it was a substantial factor in bringing about that harm. Inc. 2. Whether D’s failure to light the stairway was a cause in fact. P developed a skin cancer at the pt of the injury. No – P failed to prove cause-in-fact because Bacon has no idea what caused his fall. P failed to discharge the burden of proving that D’s negligence was a cause in fact of the death. P contends that Bacon had been negligent in his handling of the rifle and that the ranch company and cattle company had been negligent in maintaining the deck stairs in a dangerous condition. Yes. – D Bacon went to the car to get his rifle and stumbled and accidentally shot P’s wife. Satisfies the burden of production 2. if the train was actually going 25mph there’d still be the same result  no causation. Whether P proved cause-in-fact that his wife’s death would not have occurred but for the failure of D to maintain the steps – for a reasonable jury to find. but this instruction was refused. Affirmed as to liability. Reynolds v. Tice) Perkins v. Whether the excessive speed of the train was the cause in fact/substantial factor of the fatal collision. Texas & Pacific Railway – P hastened down unlighted steps at the train station and fell. 1. Possible that this negligence caused the injury Gentry v. Where D’s negligence greatly multiplies the chances of the accident and naturally leads to it. The train was traveling 37 mph when it should have been going 25. P failed to prove causation. Texas & New Orleans Railway – P’s husband died in the collision of a car with an oncoming train. P cannot prove that timely diagnosis would have allowed him to live a normal life expectancy. Wilkins – P was a guest in D hotel and received a cut from a piece of glass that fell from a broken transom that D should have had notice of. Shifts burden to D. If D can’t produce evidence. then P wins on the issue of negligence as a matter of law. Whether there is a causal connection that can be proven between the injury and the cancer.

even though only 1 D is responsible for the damage? Yes. No causation to prove here. xxxiii. but she names several to recover. xxxiv. and the combined fire burned P’s property. DES was marketed by the Ds. Both Ds fired negligently. If this is so. Edwards – Owner of a tractor truck left it parked without lights in the middle of the road on a stormy night. and only a 10% likelihood that the offending produced would escape liability. where all Ds produced a drug from an identical formula and the manufacturer of DES which caused P’s injuries cannot be identified through no fault of P. caused by D’s negligence. D can get out of liability via burden of persuasion that it is not D’s drug. each D is liable according to market share. P argues that the Ds she names produced 90% of the DES marketed. The ct allows the case to go to the jury as long as the P shows some reduction in the chance of survival. along with approx. Whether the judgment against both Ds can stand. 5 drug companies. a modification is warranted. Sindell v. resulting in P’s cancer. Acting in concert Anderson v. & S. Minneapolis. even though his act alone might now have caused it. If the ct required P to identify which company produced the drug. Whether the medical testimony of a reduction of chance of survival in this case is sufficient evidence to allow the proximate cause issue to go to the jury. If you can join the manufacturers of a substantial share of the market. Yes. St. The But-For test doesn’t work here – this is a “substantial factor” case  either fire alone would have caused the injury. . Concurrent causes (Hill v. both parties are held liable. M. Anderson) 3. Determining which party caused the harm In joint and several liability. R. Abbott Labs – P’s mom took DES while pregnant. St. Hill v. Concurrent Causes – D may not claim that she is not the actual cause of P’s injuries merely because some other person’s negligence also contributed to the injury  If either one of the acts of negligence could have caused the injury then both parties are negligent.If the injury could not have occurred without both acts of negligence. at the same time. D should be held liable. Like Ybarra – unfair to make P prove causation. “Where separate acts of negligence combine to produce directly a single injury each tortfeasor is responsible for the entire result. Whether a modification of the rule in Summers is warranted – that there is only 1 manufacturer responsible for the pills P’s mom took. she would be precluded from recovery. and P was struck in the eye by a shot from 1 gun. Tice – P and 2 Ds were members of a hunting party. Public policy: better to have D bear the cost than P. . Injury is loss of chance to survive. merged with another fire of unknown origin. Vicarious liability – P can sue both the employer and employee 2. P cannot identify the manufacturer of the drug her mom took. Summers v. P was the passenger of the car which collided with the truck from the rear. should the owner of the truck’s negligence be taken into acct as well? Yes.” Each tortfeasor is a cause-in-fact cause. but neither is a But-For cause. so either Ds are negligent. Edwards. xxxii. Ct switches the burden of persuasion on causation to Ds. P can sue several Ds 1. then there is a corresponding likelihood that this comparative handful manufactured the DES which caused P injuries. Even if the driver’s negligence was a cause. 195 other companies.R. P. Yes. – A forest fire (set by the engine) caused by the negligence of D swept over a large area.

Bartolone v. Ct of Appeals of NY affirms. xxxviii. remote (no liability) – Ryan o Direct (liability) v. P’s house. Daniels – P shows that before his injury some other person committed a wrongful act and that his injury would not have occurred without that wrongful act. D Bierczynski remained in the proper lane at all times. Issue: Whether the fire to P’s land is a proximate damage or remote damage? Remote damage – Ds not liable for remote damages (remote v. subject to normal rule regarding directed verdicts. xxxvi.  Andrew’s “cause” approach says question of fact for the jury. material of structures. Eggshell Skull theory – D is responsible for whatever happens as a result. should the particular D be liable? xxxvii. A number of other houses were also burned. P appeals. Jeckovich – (schizophrenic body-builder case) P was involved in a 4-car collision and sustained minor injuries. xxxv. Jury returned a verdict for P. Biercyznski appealed. Supreme Ct of NY reverses and reinstates the jury verdict. Rogers – Ds were engaged in a speed contest. which contained a lot of wood. Question does not exist without cause-in-fact.) over which the parties have no control. New York Central RR – D set fire to its woodshed. but suffered a psychotic breakdown. immediate damages) That the fire spread and other buildings be burned is not a necessary or usual result. xxxix. Only 1 D hit another car. The result depends on accidental circumstance (i. . Verdicts were entered in favor of Ps against both Ds jointly since both were negligent and both constituted proximate cause. Issue: whether he can be held jointly responsible even though not involved in the accident? Yes – he was acting in concert with other D. Unforeseeable consequences Ryan v. Proximate cause limits liability. Judge at the Circuit Ct nonsuited P. unforeseeable (no liability) – Wagon Mound • 3 “circumstances” in which the problem arises: o Extent of injury o Type of injury o Person injured • Who should normally decide liability should be limited despite proof of cause-in-fact?  Cardozo’s “duty” approach says it’s a question of law for the ct. P contends that the accident aggravated a pre-existing paranoid schizophrenia which has disabled him. located 130 ft from the shed. Ct set aside the verdict stating that there was no basis that the breakdown could be attributed to a minor accident. • What about when a later negligent act intervenes between negligence of a D and P’s injury? Atlantic Coast Line Railway v. degree of heat. wind. Are the circumstances such that as a matter of policy we decide D should not be held liable? Assuming there is a cause in fact relationship. caught fire and was destroyed. This case extends this to mental illness as well as physical preconditions – did the collision trigger the condition? Applies equally to mental and physical.e. Pre-existing condition – Egg Shell Skull Theory .Bierczynski v. Limiting Cause-in-Fact Liability – Proximate Cause • Issue: Is the relationship between the negligent act and the injury so attenuated or tenuous that liability should not attach even though the negligent act is a cause-in-fact of the injury? • Proximate Cause – 3 tests to limit liability o Immediate (liability) v. etc. indirect (no liability) – Polemis o Foreseeable (liability) v. either through carelessness or insufficient condition of an engine.

not duty. P is an unforeseeable P. Importance is the type of damage. only difference in facts Difference here: Ps here didn’t drop the molten metal and start the fire. When talking about proximate cause. The other looked like he was about to fall. D appeals. even if not foreseeable. thus there is no duty on the part of the RR. This is a case on causation. not the extent – the type that could be anticipated would be injury to the water. the magic word is foreseeability. Yun and Chang (Yun’s dad) pulled over after the spare tire and part of the support bracket fell off the van. Owners allege that the loss of the ship was due to the negligence of the charterers’ servants. Unforeseeable Plaintiff . Chang ran across the rain-slicked highway to retrieve the parts and was struck and killed crossing back.In re Arbitration Polemis – argument between extent and type of damage While discharging a heavy plank fell into the hold of the ship in which the petrol was stored and caused an explosion which destroyed the Respondents’ vessel. 5. Australia The Wagon Mound discharged oil while docked. – the dissent is the law in this case  the Supreme Ct of NJ adopts the dissent and reverses later Driving on the GSP late at night. 1 was able to. Mort couldn’t call attn to this because of risk of being charged with contributory negligence. . Wagon Mound II – no difference in law between I & II. not the burning of the dock. So the jury should not have gotten this case. The oil was carried to the dock of P (Mort) . The test is foreseeability – P’s lawyer claims the risk was foreseeable (rather than the damage). The small newspaper-covered package (fireworks) he was holding fell upon the rails. Long Island RR – 2 men tried to jump onto a moving train. Foreseeability approach . the jury decides whether the fact is or is not foreseeable.Palsgraf v. Ford Motor Co. The ct doesn’t agree. many feet away. Ct reversed Polemis xli. 2 days later cotton debris in the oil caught fire when P dropped molten metal into the water and P’s wharf was destroyed along with 2 ships docked beside it (see Wagon Mound II for the owners of the 2 ships as Ps) xl.Direct Causation view . not a duty question. Question here is one of duty. Cause-in-fact is not the issue 2.Wagon Mound I – same jurisdiction as Polemis (Commonwealth) – Sydney. There is liability for damage that is the direct result. Standard: What would be foreseeable to a chief engineer docked in Sydney. Arbitrator considers that damages are not too remote. The chief engineer should have understood the risk of discharging oil. 1 guard reached from the train to pull him in. Issue: Who ought to decide whether negligence was done to P? Chief Justice Cardozo’s perspective: Duty 1. This case should not have gone to the jury – “no such thing as negligence in the air” 3. and the explosion threw down scales at the other end of the platform. Superseding causes – effect of the intervening cause Yun v. Charterers claims that damages were too remote. D appealed. and duty is missing Dissent – Judge Andrews’ perspective: Causation 4. exploded. Judgment for P. The jury ought to have answered this question – policy question Should this negligent actor be liable? This is a proximate cause question. The scales struck P. Reversed. Generally. D claims that there is no way to have foreseen the explosion – the most they could have foreseen was a nick in the boat. xliii. xlii. another pushed from behind.

Felix Contracting – D excavated a work site in the street. The car hit P and threw him in the air and was splattered with boiling hot liquid enamel and caught on fire. • Rescue doctrine – Rescuer can maintain an action against a tortfeasor who puts another in danger if the rescuer can establish: o Negligence (or product defect) of D caused the peril (or appearance of peril) to the person needing rescue o The peril to the person was imminent o Reasonable person would conclude the person was in peril o Rescuer acted reasonably in attempting to rescue o D’s tort was the proximate cause of the rescuer’s injury • “Firefighter’s Exception” – professional rescuers cannot use the rescue doctrine unless the tortfeasor intentionally exposed the rescuer to risk. negligent intervening acts are foreseeable. D argues that P’s injuries were caused by D Dickens’ negligence and P’s own negligence. Duerr testified that he struck the match to light a cigar. Suzuki moved for summary judgment asserting the rescue doctr doesn’t apply for product liability actions and that P can’t prove that Suzuki proximately cause his injuries. 329) McCoy v. The consequence of the gas coming into contact with fire and causing an explosion is foreseeable. Kentucky & Indiana Bridge & RR – Through D’s negligence a tank car of gas derailed. But if the act was done maliciously. – P stopped to assist at an auto accident where a Suzuki overturned. injuring P. Is the intervention one that supersedes so that the original negligent party is no longer liable? Is the intervening cause superseding? Limiting Original Cause-In-Fact Liability: Superseding Cause • Intervening/Foreseeable Cause  Foreseeable intervening acts are not superseding causes. Whether Chang’s conduct was reasonably foreseeable versus “highly extraordinary. • Restatement 3d & some jurisdictions apply the rescue doctrine when peril is to property. Affirmed. No. not reasonably foreseeable. . • Generally speaking. Question in this case: Whether the defect in the spare tire bracket assembly proximately caused Chang’s injuries? No. and crashed into the work site. D James Dickens suffered an epileptic seizure. P was sealing a gas main. P alleged that D Felix negligently failed to keep the excavation site safe.” thereby breaking the chain of causation? No. the policeman left and P was struck while walking to his car. (see note 1 p. Dissent is law in NJ: reverse. P sued Suzuki for the defective car which caused the accident in the first place. After the driver and car were removed. D could not have foreseen or deemed it probable that someone would maliciously do such an act. Other witnesses testified that he deliberately threw the match on the ground with the intent to light the gas on fire. intentional or criminal acts are not. lost consciousness. American Suzuki Motor Corp. D appeals. Duerr struck a match which caused an explosion. Derdiarian v. Issue: Question of superseding cause. That D could not anticipate the exact manner of the accident or the exact extent of injuries does not preclude liability as a matter of law where the general risk and character of injuries are foreseeable. Judgment for P. Gas ran into the street. Expert testimony – usual method of safeguarding the site would have been to erect a barrier and have flagsmen. unforeseeable intervening acts are superseding and relieve the earlier tortfeasor of liability. a bystander. Whether the intervening act is a superseding cause. Distinction between an action that is negligent and an action that is criminal. questions of proximate cause should be left to the jury. Watson v. An intentional criminal act is not foreseeable and thus superseding.

To deter drunk driving – drunk driving is intolerable. Enright v. which is what this ct is doing – dissent disagrees  attack on the majority’s claim that this is in accord w/ state policy. ct expanding the reach of tort law. Ct is creating a duty (generally this is the Legislature’s job). this wouldn’t have happened. where do you stop? Is the grandmother’s ingesting DES a proximate cause of Karen’s disability? No. Must P show prox causation under resc doctr? Yes. Does the rescue doct apply in product liab cases? Yes. Policy clearly based on drunk driving. This is a minority opinion. the child of the person can recover. her mother developed reproductive abnormalities. I – Kinsman owned the boat Shivas which broke loose from the dock and drifted downstream. He got into a car accident with P on the way home. SEE KINSMAN HYPOS . unclear to go how far to go to prevent drunks from driving. he’d automatically win). Importance of the rescue doctrine for this decision. Maltman – too remote as a matter of law (failure to take drivers license away from person who caused the accident is too remote). which caused Karen’s cerebral palsy. but the grandchild cannot. Gwinnell spent an hr or 2 drinking at Zak’s home. and the City for negligence. 2nd circuit said that the proximate cause will extend to any cause that is direct so long as the damage if of the same general sort that is risked. sued same Ds. Petition of Kinsman Transit Co. even if damage is other and greater than expected. Specifically the duty is limited to serving alcohol to a person who will be driving Making a judgment on a duty as a matter of law. Calls to the bridge went unanswered because there was nobody there to raise the bridge. Continental dock. Slippery slope problem – once you start. Whether the social host is liable to the victim of car accident when enabling an adult guest to become drunk and drive. haven’t established proximate cause because they are too remote. Owners of the upland property recovered from Ds at trial. 2nd Circuit says consequences are too tenuous. He was visibly drunk when he left. Eli Lilly & Co. Depends upon the social host serving an already intoxicated guest who is to drive. Ct took language from Polemis (“direct”) and Wagon Mound (“general sort risked”) Foreseeability idea Wagon Mound – Mort loses because his injury was entirely different Is Kinsman’s negligence the proximate cause of the damaged property? Or is the failure to raise the bridge superseding? This ct says the property injury is the result of the proximate causes of all Ds because it is direct. guests can serve themselves. Gwinnell – minority opinion. what would you argue? City’s negligence is a superseding cause. Petition of Kinsman Transit Co. State law prohibits licensee’s to serve drunks so the ct rationalizes that this is along the same lines. If you were representing Kinsman. taking another boat with it floating down the Buffalo River. II – Boat with wheat sues for loss of grain and extra cost of moving the grain. Kelly v. Issue of whether Suzuki’s negligence is the prox cause of P’s injuries – McCoy has the burden (If he didn’t have to show it. Flooded property owners sue Kinsman. licensees have insurance. Dissent: social host can’t tell who a drunk is while licensees are experts in determining who is drunk. Legislative matter – is there a difference between interpreting a statute & making policy. in accord with the state’s policy. From ideas in Watson. where can you stop? If you can prove cause-in-fact. Did Suzuki prox cause P’s injuries? Jury decision. – Karen Enright’s grandma ingested DES during pregnancy. you would say that if someone has been on the bridge like they were supposed to.

Mann – P allowed his ass to graze on a public highway. Assumption of risk Seigneur v. D probably would have brought the action and the guy riding the horse would plead contributory negligence. P was injured while being evaluated and tried to sue. Last clear chance can nullify defense . Witness stated that he came down at a “smartish pace. Then why isn’t contributory negligence a complete defense here? Why does D lose? Because of the doctrine of last clear chance. D can implead others and cross-claim against them for contribution (these cases require special verdicts). Witness said that if he had not been riding so fast he would have seen and avoided falling. was riding hard. P’s bargaining power was not grossly disproportionate to that of D – even though the K was an adhesion K.e. some merge into comparative). There were other gyms she could join and the service is not essential. National Fitness Institute. disfigurement. produce. D has the burden to produce evidence with respect to contributory negligence.Butterfield v. Last clear change was a way to ameliorate the harshness of contributory negligence. .” Same case as Butterfield – negligence on D’s part and on P’s part. D wins the case  this was the effect of contributory negligence. Last clear chance – whoever sues first. Elements: o Actual knowledge of risk o Actual appreciation of the magnitude of risk o Voluntarily assumes the risk • Independent Ds can cause an indivisible harm • P may. D ran over the ass. but to punish Complete Defense . (2) general (i. – P signed a K that contained a clause stating NFI was not responsible for injuries. money out of pocket. Hypo – if it had been something valuable in the middle of the road. The exculpatory clause unambiguously excused NFI’s negligence. coming from a pub. but damages are nominal o Compensatory – compensate for injury  What constitutes compensatory? 2 kinds: (1) special (i. it is a complete defense. P. disablement) o Pain and suffering (past and future) are most argued about o Punitive/exemplary – nothing to do with injury. Forrester – D put a pole across the road while repairing his house. Should D’s liability be limited to % of fault? • Damages: o Nominal – liability. this does not display disproportionate bargaining power.e.Affirmative Defenses & the Rise of a Comparative Fault System*** (see chart below) • Contributory negligence originally a complete defense (still is in 4 states) o D has the burden to plead. even just 50%. Not against public policy. & persuade • Comparative regimes not predominate: o Pure (12 states) o P can recover if not more than 50% at fault (12 states) o P can recover only if less that 50% at fault (20 states) • Express assumption of risk is a complete defense • Implied assumption of risk was originally a complete defense (some comparative states retain as a defense. Defense is contributory negligence. Inc. join all potential Ds in a suit • Ds can counterclaim against P. Makes sense in Davies. but need not. past & future medical expenses).Davies v. If the jury is persuaded that P is at fault. D pleads an express assumption of risk.

Rogers (repeat from VII) . D provided a detached bathroom for tenants’ use. Only 1 D hit another car. carry evidence. Contributory negligence: Implied assumption of risk has some intention. D was the landlord. Verdicts were entered in favor of Ps against both Ds jointly since both were negligent and both constituted proximate cause. Balentine – P and D were involved in a car accident resulting in severe injuries to P.P can recover even if he’s most at fault for the accident. P entered the highway from a truck stop. Dorta – since the decision in Hoffman v. contributory negligence no longer completely bars P’s recovery but is to be considered in apportioning damages according to the principles of comparative negligence. Comparative Fault Who bears the risk of an absent defendant? . Pure comparative state: . Subjective test – did this P have knowledge of the risk.Result is to reduce the importance of fault in the system Less than equally at fault (49%): . Assumption of risk v. D claimed an assumption of risk – an implied assumption of risk (different from the NFI assumption. which was express assumption) D has to plead. . Commercial Realty Co. but from here on. D Bierczynski remained in the proper lane at all times. Rush v. Became a 49% jurisdiction. D rear-ended him. – Ps were tenants. She did not have a choice. P wanted an instruction that said he should be awarded half of the damages he would have gotten. (2) Risk has to be taken voluntarily – voluntarily assumed (3) P has to know of the magnitude of the risk. Jones. Rush fell through the bathroom floor. This is a prospective ruling. In Tennessee at the time contributory negligence was a complete defense. This P loses.No joint and strict several liability – P . Both had consumed alcohol that evening. involves a situation with intention (not just a person being careless) McIntyre v.Uniform comparative fault – remaining D and P SEE HYPOS .Joint and several liability – remaining Ds . contributory negligence will not be a complete defense. Assumption of risk – evaluated by the jury in terms of how much it contributed to the results – in FL (like many states) Some states say it’s still a complete defense because of its intentional character… Express assumption is still a complete defense in states like FL Joint Tortfeasors & Vicarious Liability Acting in Concert Bierczynski v. and persuade that: (1) P had actual knowledge of the risk 1.Ds were engaged in a speed contest. Mrs.*Express assumption of risk is a complete defense.This makes fault an issue (rather than equal fault) Blackburn v. Jury found them equally at fault. P won in this case because D failed to prove that she voluntarily assumed the risk.

Applies to all torts. (3) retention of joint and several liability does not deny D equal protection of the law. and D’s breach endangered someone else. Can’t have double recovery for a single injury. Rule is that a joint tortfeasor can sue for contribution (except in IN). (Employer wouldn’t be held liable under Respondeat Splendor) Foreseeability test – It is foreseeable if the risk of the danger to the other relied on or is related to the employee’s work. Knell v. Feltman – Knell’s car crashed into a cab owned by D.G. the cost falls on P. Minimed – D company hired a pest control company to eliminate fleas. so Knell owed Feltman half the damages. Even where P is partially at fault. Going-and-Coming Rule – employee is outside the scope of his employment when engaged in his ordinary commute to and from his place of work. even if A is not at fault (a type of strict liability) Respondeat Splendor doctrine – if an employee commits a tort during the “scope of his employment” his employer will (jointly with the employee) be liable. Embro – Action by 5 Ps. the other D should not be forced to pay. Holding: (1) Comparative fault is applicable to strict product liability actions. Action against the drivers and the contractor who negligently obstructed the view of a stop sign. got a headache as the day progressed. Knell argues that he should not have to contribute because he had not been sued as a joint tortfeasor by Langlands. was seriously injured. and had to go home. J. do not take the employee out of the scope of employment. convenience. and welfare of the employee while at work. and not Knell. D will not be forced to pay the 70% for which the unknown party is responsible. New Mexico Welding Supply – car accident involving 3 cars. his culpability does not equal that of D b/c his breach of duty was to himself and no one else. Bussard v. Bartlett v. Langland. D argues contributory negligence. though strictly persona and not acts of service. including intentional and strict liability. health. who were passengers in one or the other of 2 cars that collided. Ct found both Knell and Feltman to have been negligent. there is no difference. When one D is not able to be found. Langland only sued Feltman. Bundt v. Doctrine of comparative negligence did not eliminate joint and several liability. arrived the next day. Industries – Jasper died while operating hydraulic work platform manufactured by D. Ds moved to interpose a defense of discharge and satisfaction  Ps had already recovered against the State of NY. [An intentional tortfeasor cannot sue for contribution.Coney v. Contribution only matters in jurisdictions where there is joint and several liability. an employee. Her supervisor asked if she was . Ct does not maintain joint & several liability – once you switch from comparative. Ct will not apply joint and several liability and force D to pay for actions of other D. Feltman filed a cross-claim against Knell. Same thing – if P suffers the consequences of 1 judgment-proof D and now there are 2 Ds & 1 is judgment- proof. so this judgment had been satisfied. .] Vicarious Liability – A is liable for B’s acts as a result of the relationship between A and B. D should only have to pay 30% of damages because he was only 30% responsible for the injury.L. Mrs. Something is foreseeable if in the context of the particular enterprise an employee’s conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer’s business. Hernandez. Holding: P can only recover what the damages are one time. Knell’s passenger. Action based on strict products liability. one driver is unknown.Acts necessary to the comfort. (2) comparative fault does not eliminate joint and several liability. joint and several liability doesn’t work.

this can give rise to liability. resulting in injuries requiring med treatment for P. dominion. (3) time consumed in the deviation. it is a mixed question of fact and law. time. and we cannot read into it the restriction that the particular driver must be known by and his driving consented to by the owner. Independent Contractors – Although hired by employers. leased by George Codling. Goertz – Goertz was making collections for the delivery of D newspaper when he got into a fight with P. Murrell v. among the members (4) An equal right to a voice in the direction of the enterprise. (6) freedom allowed the employee in performing his job responsibilities. 669 Joint Enterprise requirements: (1) An agreement. Means – A car owned by Hertz. He made a spur of the moment decision to pull into a service station for an estimate and struck P’s car. among members of a group (2) A common purpose to be carried out by the group (3) A community of pecuniary interest in that purpose. are not under employer’s immediate control and may do work in the manner which employer more or less decides. Factors determining whether an employee has embarked on a slight or substantial deviation: (1) employee’s intent. Holding: Whether Welch’s turn into the service station was within the scope of his employment? This is for the jury to decide. . (4) the work for which the employee was hired. Minimed contended that the going-and coming rule meant that Hernandez was not within the scope of her employment during her drive home. O’Shea v. P. (2) nature. Lower ct agreed and granted summary judgment. SEE NOTE 3. Connie’s trip was a family undertaking. Ct found that D was an independent contractor and had no direct contract or duty to D employer. Welch – D was an Osco store manager driving from Osco District Office to deliver football tickets to other managers. and place of deviation. P appealed. so P tried to sue her husband’s estate. express or implied. Shuck v. Foreseeability test to determine whether such dangers are related to work – that an employee might not be fit to drive after breathing lingering pesticides for several hrs is foreseeable. P couldn’t reopen the wife’s estate. Ct found that only the daughter had an actual pecuniary or financial interest in the profits of the sale of the calf. Popejoy v. On her way home she rear-ended P. P sued Welch and Osco for vicarious liability. No joint venture. therefore employer is not liable  Goertz not under the supervision. and driven by Means crashed with a car in which P was passenger. (5) incidental acts reasonably expected by employer. P sued both Hernandez and Minimed in vicarious liability under the doctrine of respondeat splendor. she said yes. the permission for Means to drive the car was implicit. and control of D. The district ct granted summary judgment for Osco since no reasonable jury could find that the stop at the service station was within the scope of his employment. If D employee is negligent in his own dealings within the K. Holding: The statute makes the owner liable if the car is being driven with his or her express of implied consent or knowledge.well enough to drive. which gives an equal right of control. Because Hertz gave Codling the car.” P has the burden of showing that joint enterprise existed. Steinle – William’s wife Connie got into an accident with P and was killed on her way to purchase a calf for their daughter. premised on the theory that William and Connie were engaged in a joint venture and Connie’s trip was a “business trip. There are exceptions to the Going-and-Coming rule – 1 exceptions applied when an employee endangers others with a risk arising from or related to work.

Winterbottom v. no easy endpoint xlv. – D entered into K with the city to supply city with water and water to the residents at a reasonable price. The obligation to inspect must vary with the nature of the thing to be inspected. M/V Testbank – A ship collided with another ship. Creates a new duty on manufacturer to inspect things that may be inherently dangerous because if they are not created properly. they are all cases in which an action might have been maintained upon the K. MacPherson v. H. Guste (P) contended that he could recover his economic loss caused by Testbank’s shipping accident even though he suffered no physical property damage. imposes no duty to aid. Buick Motor Co. the price of utilities would increase drastically due to a chain of similar suits that would follow. The commercial oystermen. *Pure economic loss without physical damage to a proprietary interest cannot be compensated. But P cannot win because there is no privity of K between P and D. shrimping.Expanding Tort Liability by Finding a New Duty • Contracts the source of “duty” the law would enforce – MacPherson finds “duty” in the law – liability without contract “privity” • Tort law develops and expands as new “duty” is found – law expansion of “duty” is by judges finding the nature of duty (proximate cause is a jury exercise in determining the extent of duty in individual situations) • Failure to Aid: Law. not a tort action. a mail coach driver. v. State of Louisiana ex rel Guste v. special relationships (Restatement) Misfeasance v. Moch Co. There is a duty to the 3rd party purchaser because the manufacturer is aware that the item will or could be purchased by that person. they can cause peril of life or limb. generally. There is no privity of K because P is foreseeable. was seriously injured when one of the coached broke down. the more probable the danger the greater the need of caution. xliv. there is usually no duty to come to the aid of another in distress. crabbers. but unless there has been some public duty undertaken or public nuisances committees. containers holding PCP were damages and 12 tons of PCP were released into the Mississippi River Gulf. and related activities were suspended for 400 miles. Wright – D was a manufacturer and repairer of mail coaches and contracted with Postmaster General to keep the coaches in a safe and secure condition. which then lies a breach of K.* People who lost money as a result of not being able to travel the waterway for a period in which it was shut down are not entitled to recover. While P was driving he was injured due to deficiencies in the wheel. except where there is a contract. There is a class of cases in which the law permits a K to be turned into a tort. and fisherman were permitted to recover b/c they had been making commercial use of the waters. D did not comply with his promise and P. Rensselaer Water Co. Fire started and spread to P’s warehouse b/c there was not adequate water and pressure. Nonfeasance – at common law. Exceptions to no duty rule: various competing policy considerations. who then sold it to P.R. Policy reasons: If this case were to be decided for P. – D is a manufacturer of cars who sold a car to a retail dealer. Majority rule regarding utilities. Cannot extend a duty of care to everyone who might potentially be benefited by the K between the city and the water company. . Coast guard had to close the outlet to navigation for 3 weeks and all fishing. shrimpers. Nonfeasance – misfeasance is an affirmative act which harms or endangers a P and nonfeasance is a mere passive failure to act. If P can sue then every passenger or even any person passing along the road who was injured by the breach might bring a similar action. Policy behind no duty rule: no notice.

jailor/prisoner) 8. v. Wife argues that she owes no duty and alleged negligence was not the proximate cause.Failure to Act – There is no affirmative duty to help someone – Failure to act does not create a tort Special relationships that create a duty: 1. D counseled an outpatient who told him he intended to kill Tatiana Tarasoff because she spurned his romantic advances.” it is fair to impose a duty. the neighbors’ relationship had been close. parent/child. The ct here says that the duty should not be restricted to that situation. California – P’s daughter was raped and murdered in her dorm at U of CA. Competing Policy Exceptions that create a duty J. but Poddar was released soon after. Innkeeper with guests 3. where she began using drugs and associating with criminals and had gone absent from her dorm. a commercial bus 2. Tarasoff v.S. Although there had been a series of rapes by 3rd parties.e. Public interest in protecting against violent assaults outweighs the interest in treating mental illness or . Students are deemed to have sufficient maturity to regulate their own behavior and associations. When a spouse has knowledge or reason to know of likelihood of his or her spouse engaging in sexually abusive behavior. Duarte v. Before Tarasoff. A common carrier with its passengers – i. even if there’s no special relationship.H. The psychiatrists decided that no further action should be taken. A business or other possessor of land that holds its premises open to the public with those who are lawfully on the premises 4. If peril is due to D’s conduct (whether that conduct is negligent or not) Hegel v. The wife knew that the young girls were coming over every day for considerable amts of time alone with her husband. and M. R. Landlord has a duty to invitees. A custodian with those in its custody. spouse has a duty to take reasonable steps to prevent or warn of the harm. A duty should be imposed on the wife and her negligence could be found to have proximately caused injuries.S. – 2 young girls. D psychiatrist told police. Issue: Whether the psychiatrists owed a duty to warn/exercise reasonable care to 3rd persons. Girls’ parents brought action against the man and his wife. There is no requirement of law placing the duty upon the university or its employees to regulate the private life of their students. Employer with its employees 5. She should have known and there were actions she could have taken. In this case. contending that the wife’s negligence rendered her liable since she knew or should have known of her husband’s propensities. Reasonable care to protect patrons from 3rd parties. D took no precautions to prevent against the danger. Breach of such a duty constitutes a proximate cause of the injury. Moreover. When a defendant’s actions are “relatively easy to correct” and the harm sought to be prevented is “serious. Regents of the University of California – D psychiatrists at Regents University of California. Landlord with its tenants 7. 12 & 15. Langsam – P’s daughter student at D university. Child abuse is so serious that it outweighs marital relationships. were sexually abused by their 64 yr old neighbor for over 1 yr while caring for his horses. the dangers were foreseeable by the university because of the past history. The scope of duty is determined under “the totality of the circumstances” and must be “reasonable” under those circumstances. It is the nature of the university as landlord that creates the duty. Poddar killed Tatiana 2 months later. A school with its students 6. Yes.e.T. if the custodian is required by law or voluntarily takes custody of the other and has a superior ability to protect the other (i. there was a duty to warn when the dr had a special relationship to both the victim and the dangerous person.

and if he does not then he is prima facie answerable for all the damage which is the natural consequence of its escape. P alleges strict liability because injuries arose from “ultrahazardous” activity. must keep it at his peril. Appropriateness – inappropriateness of the activity to the place where it is carried on 6. of the water had entered through natural use and then flooded P’s property. *More than 1 factor of Restatement 520 must be present. it is easier to label it abnormally dangerous. Judgment for P.” 2 or more must be present: 1. land. Not negligence because D was not negligent in hiring the contractors. horse or ox roaming and damaging land) as authority. – P received injuries when a stray bullet from D’s target practice area ricocheted during firearm practice in a nearby gravel pit caused him to fall from a truck. Inability to eliminate the risk – even if by use of reasonable care 4. Abnormally Dangerous Activity Restatement 520 – 6 factors for consideration in determining whether an activity is “abnormally dangerous. Rylands v. Here the risk of harm to persons or property can be virtually eliminated by the exercise of reasonable or even “utmost” care. The target practice is of some social utility to the community – cost-benefit analysis. Fletcher (*** Important case in tort history***) – This case used the animal cases (i. Inc. or chattels of others 2. Is the particular activity ultrahazardous? No. Miller v.e.  Side note: if land is involved.” D used the land for a non-natural use. o An owner is liable for injury by a domestic animal if the animal is known to have a propensity to be vicious.] Strict Liability • Animals that stray – fencing out and in  The owner of an animal that is likely to roam and do damage is strictly liable for its trespasses. When the reservoir filled up. then no liability. not the jury. then flooded P’s adjacent mines. [But later CA limited this rule to where there’s an identifiable victim – kind of went back to the old rule. Civil Constructors. D hired a contractor to build a reservoir on their property. High degree of risk – existence of high degree of risk of some harm to the person. o Wild animals/domestic animals – “one bite” rule o The owner is strictly liable for a non-domesticated animal who injures someone. . D was not negligent because not aware of mine shafts. RULE: “The person who for his own purpose brings into his lands and collects and keeps there any thing likely to do mischief if it escapes. Not a matter of common usage – extent to which the matter is not of common usage 5. water broke through into abandoned mine shafts. • “Abnormally dangerous activity” – Restatement 519 – one who carries out an abnormally dangerous activity is subject to strict liability even if he exercises the utmost care to prevent harm. P was working on coal mines underground near the reservoir. But absolute duty applied.patient confidentiality. Risk of serious harm – likelihood that the harm that results from it will be great 3. Not trespass because damages were not immediate. Value – extent to which its value to the community is outweighed by its dangerous attributes (Cost-benefit analysis) Whether an activity is abnormally dangerous is a question for the judge. Based on strict liability for roaming animals.

P provided notice that the blasting was causing the mother mink to kill their kittens. A dangerous enterprise must pay its way within reasonable limits. bear the risk o Restatement 2d. Nearby homes were evacuated and P was ordered to clean the soil and water – cost: almost $1mil. not manufacturing and shipping. P claims that the transportation of the toxin through the Chicago metro area is an abnormally dangerous activity and D is strictly liable. The Developments of a Theory of Products Liability • Causes of action: negligence. D blasted 2. Reversed. rather than innocent purchaser. But you can use assumption of risk) Foster v. The negligence regime is more likely to avoid the result in the future rather than strict liability. warning • Defect in Manufacture: (1) Defective when left manufacturer (2) Expectation of no change in product (3) Defect proximate cause of injury • Defect in Design: o P has the burden of persuasion to show reasonable alternative design o [Minority: D has the burden of persuasion to show no reasonable alternative.Indiana Harbor Belt RR v. “Abnormally dangerous” is about activities. Limitations on Strict Liability (Cannot use contributory negligence when the claim is strict liability. Cannot be said P voluntarily put himself in a way to be injured because he had reason to be there (anyway. Restatement 519 Golden v. As a result of a hurricane. Rule: Strict liability does not apply where the injury results from a major act of God which the owner has no reason to anticipate. D’s horse exhibited vicious tendencies before. implied warranty of merchantability. American Cyanamid – D American Cyanamid is manufacturer of chemicals and shipped 20. Preston Mill – P owned a mink farm. section 402A – single defect approach o Restatement 3d (draft) – Recognition of separate kinds of defect: manufacture.25 miles away. Bushey – P was kicked by D’s horse while P was in the field feeding his mare. Amory – D owned a hydroelectric plant which constructed a dike. Sandy v. The thing that makes blasting ultrahazardous is the risk that property or persons may be injured. putting the defective product into commerce should.000 gal. Not abnormally dangerous for this type of risk. the river overflowed. express warranty. But the ct points out that the spillage was not caused by the nature of the toxin – it was caused by someone’s carelessness to maintain or inspect the RR car. design. so D is strictly liable for the keeping of a vicious animal. not substances  the relevant activity is transportation. strict liability is not necessary. P employees noticed a leak.] • Defect in Warning: o P has the burden of persuasion on foreseeability of need to warn o [Minority: D has the burden of persuasion to show need for warning not foreseeable. strict liability • The rise and modification of strict liability o Mfg. of acrylonitrile (toxic & flammable) onto a RR car. but that’s not to say it must bear responsibility for every extreme of harm it might cause.] . Like the proximate cause slippery slope problem – some limits must be set. no defense of contributory negligence when the claim is strict liability because it excludes negligence as the basis of liability). It’s not abnormally dangerous for causing minks to eat their young. Lesson: If negligence will take care of the problem. P doesn’t distinguish between manufacturer and shipper. Missouri RR picked up the car and carried to P’s switching line. Judgment for P.

Product Liability: A manufacturer is liable for defect if he sells or distributes a product and it causes harm. Manufacture defect Greenman v. Baxter v. A product is defective if at the time of sale or distribution it contains a manufacturing defect. Armour – warranty runs to the ultimate consumer. The car was manufactured by Chrysler and sold to P by Bloomfield Motors. . Bloomfield Motors – Mrs. P couldn’t sue in negligence b/c there is no negligence. Warranty Express Warranty – Under the circumstances where an ordinary person would be unable to discover a defect by usual and customary examination. the manufacturer will be liable when the goods cause damage due to noncompliance with the representation. P wins because of implied warranty of merchantability. and has relied upon the manufacturer’s representation. which was a warranty clause that provides that the manufacturers gave no warranties other than replacing defective parts within a certain time frame. 721) [“Inherently dangerous” part dropped off as the law developed] Test: Whether the product was reasonably certain to place life and limb in danger when negligently made… If so. a negligence action may be brought against the manufacturer even without privity of K between manufacturer and purchaser. leaving the weaker party with no choice but to accept. Item can be inherently dangerous if it is negligently manufactured (SEE NOTE ON P. wood flew out and hit him in the head. Yuba Power – P purchased a Shopsmith power tool. The Ct ignores this and changes the rule. No express warranties. Strict Liability Restatement Third. H purchased the car he did not read the fine print on the back. Cardozo imposes a duty on manufacturers. which warrants that an item is reasonably fit for the purpose for which it was manufactured (comes from the Sales Act). • P misuse may be compared to strict liability in most jurisdictions – complete defense in others • Foreseeable product misuse usually not compared or a complete defense MacPherson v. is defective in design. The ct here is changing K law because it won’t honor this K. While P was driving he was injured due to deficiencies in the wheel. there is an implied warranty that it is reasonably suitable for use. even without privity. 726 Henningson v. Implied warranty creates strict liability that grows out of contract. SEE NOTE 5. Sales Act’s way of ameliorating caveat emptor. H was badly injured when a steering defect caused her car to crash into a wall. When a manufacturer puts an item on the market. if the problem is not discoverable by the consumer. This is also a K cause of action – this was a mass K used by enterprises with strong bargaining power and position. P. Ford Motor – P purchased a Ford from the D dealer who had gotten the car from D Ford. Buick Motor (see above) D is a manufacturer of cars who sold a car to a retail dealer. who then sold it to P. Mazetti v. or is defective because of inadequate warnings or instructions. When Mr. Trial ct dismissed negligent counts (b/c no proof of negligence) and the cause was submitted to jury solely on implied warranty of merchantability. who represented that the windshield was made of nonshatterable glass. Pebble struck the windshield. Ford argues that you can’t have a K action for warranty if there’s no privity. causing a piece of glass to hit P’s eye.10 months later P gave D written notice of claimed breaches of warranties. Judge Traynor rules that the notice requirement of section 1769 doesn’t apply to manufacturers because it comes from contracts. When using it.

Proving negligence in these cases is difficult. 10 Rix v. P in minority. D claimed the truck was altered after leaving its assembly line Although the truck was 8 yrs old. A manufacturer is strictly liable when he places an article on the market knowing it is to be used without inspection for defects. P alleged a defect in design and had experts testify that the design failed to incorporate the “human factor” into the machine’s function because it did not provide a seat. 752-752 Reasonable alternative design cases: Majority: Burden of persuasion of reasonable alternative design is on P (Prentis) Minority: Burden of persuasion is on D.Implicit in the machine’s presence on the market was a representation that it would safely do the jobs for which it was built. . P claimed the truck was defective when it came off D’s assembly line. Design Defects Negligent Risk-Utility Analysis – must consider: (1) Product utility (2) Likelihood product will cause serious injury (3) Availability of safer substitute (4) Mfg ability to make safer and maintain utility (5) User ability to avoid danger by exercise of care (6) User’s anticipated awareness of danger Risk Utility (this is the minority): Adds a 7th factor to consider. no bargaining. . Prentis v. can build the extra price into the economy) Restatement 402(A) (about dangerous defective products) almost instantaneously because law all over the country SEE NOTES 1. Policy: .Strict liability makes sure costs are born by manufacturers rather than injured persons helpless to defend themselves (this turns caveat emptor upside down). 3. whether the manufacturer can spread the risk SEE P. P sues GMC on theory of strict liability. the instructions given to the jury regarding possibility of finding of manufacturer defect b/c it is possible that the truck was defective coming off the assembly line. Battery was low. It was sufficient to establish manufacturer liability b/c P was using the tool in the manner in which it was intended to be used and was injured as a result of its use. which was established as having fluids leak which were necessary to the breaking system. Traynor gets around the 4 previous cases – he says this is different. Notice makes no sense here – no privity. – P was operating a fork lift with no seat for the operator. How this product would be used should have been anticipated by D. and P fell when the machine experienced a sudden power surge. P was injured when driving a car and being rear- ended by a truck. A design defect should be held to a negligence standard. Traynor looks at the food cases and Civil Code 1732 as authority. and that D should have foreseen such problems and mandated a dual breaking system. General Motors – defect in manufacture and design. Parties in privity are different from those in nonprivity. and those defects cause injury. The burden determines who wins when the jury can’t make up its mind – D wins in majority. . if not impossible.Law wants strong incentive for manufacturers to keep products safe.The manufacturer is in a position to spread the risk (can buy insurance. Yale Mfg. .

Most jurisdictions put that burden on P. Trial ct granted D’s motion for a directed verdict on the ground that P had not proved the vehicle was defective. from the inferences most favorable to P. Warnings are not needed for obvious dangers that are generally known – i. Same jurisdiction as Greenman. Experts testify that he would not have been killed had he remained in the car. Judgment for D was reversed. How proof works: Judge must look at evidence as most favorable to P and determines if a reasonable jury could find. Friedman v. Products Liability (Continued) Anderson v. – P dove into a 3 foot pool from the garage. P has to establish that D failed to use reasonable care in designing a product against foreseeable and unreasonable risk. O’Brien v.e.e. Must prove the 3 elements of a mfg defect. he can carry the burden of production by evidence that negates other possible causes – in many jurisdictions. D argues that the driver’s fault was proportional in the fault resulting from the injury. you do not need to put a warning on a gun. Holding: P’s evidence is sufficient to overcome D’s motion for a directed verdict. . do you have to take into acct the way ppl use it? Same issue as Prentis. Parties argued the admissibility of state of the art evidence in a failure to warn case. General Motors – Product misuse defense. P and 3 family members were injured. a manufacturer of a certain drug would not have to tell its users about the side effects because the doctor prescribes the drug. Defenses Daly v. Adequacy of warnings is a jury issue Learned Intermediary – Doctors serve as learned intermediaries. This defense probably doesn’t work anymore… (Note 11. but this is the minority. Driver of an Opel car was thrown from his car in an accident because of an alleged defect of the door latch.Different notion than Greenman – sellers are not insurers and absolutely liable for any and all injuries sustained by the use of their products. Evidence ended up being allowed. His hands hit the vinyl lined pool bottom. How can one warn of something unknowable? Here D has the burden on the issue of foreseeability to warn. For a prima facie case. p. slid apart. There is a difference in the sophisticated user. and he struck his head on the bottom. P alleged that he turned the ignition key in his 17 month old Oldsmobile while in “drive. I. He died.” The car leaped forward and he couldn’t gain control. Holding: Knowledge is relevant to the imposition of liability for failure to warn. P argues that D is strictly liable because it manufactured a defectively designed pool – because of the slippery quality of the pool liner and lack of adequate warning against diving. but comes out differently. There was evidence that he was intoxicated and did not use the shoulder harness or lock the door. Owens-Corning – Minority opinion. if P has no direct evidence of defect. Muskin Corp. 761) Proof In most manufacturing defect cases. In manufacturing this product. P was exposed to asbestos while working in the vicinity of others installing insulation products aboard ships and suffered lung problems. P must identify the elements of a cause of action and produce evidence that a reasonable jury could find for P. General Motors – This is a case about facts.

The tractor was equipped with a starter safety switch designed to prevent it from starting in gear. D was next door and operated an oil refinery which omitted gas and odors several times a wk which invaded P’s land. Neighbors don’t have the opportunity for caveat emptor – can’t inspect. • Remedies for nuisance can be equitable (injunction or mandamus) and/or monetary • Preserving a nuisance: Restatement section 826(B) – no nuisance or “buy” nuisance. Morgan v. Matthews shouldn’t have been standing next to the tractor. The condition of the site was not the result of the pollution. The invasion of P’s use and enjoyment of the land can be intentional or unintentional: . Nuisance • Private nuisance: non-trespassory invasion of another’s interest in the private use and enjoyment of land (property – individual interest – root) • Public nuisance: unreasonable interference with a right common to the public (criminal – community interest – root) o Usually brought by governmental units on behalf of the public o Individual can have “standing” to bring on behalf of public – needs “special injury” (Harm different from some kind suffered by others exercising the common right) • Cannot be a nuisance solely by reason of location or activity that is lawful. Rule: The manufacturer is not liable for injuries resulting from abnormal or unintended use of his product if such use was not reasonably foreseeable. Assumption of risk is a complete defense in strict liability jurisdictions. P does not have standing to bring a public nuisance action. D may be liable to others. Ford Motor v. it was the cause of it. If the misuse is foreseeable then products misuse is not a defense. D is still strictly liable but P’s conduct doesn’t escape liability. P does not fall into the category for which D should be liable in private nuisance. Driver’s estate’s recovery is diminished by a % of his comparative negligence.e. neighbors. D correctly asserts that an oil refinery is legal and thus cannot be nuisance per se. Recovery on this theory is not available to tenants & their invitees. Hercules. Philadelphia Electric v. i. But P did not use the water itself and was not directly harmed by pollution of the water. Inc. Trick to succeeding in an individual action for public nuisance: make the right to the public as broad as possible and the individual injury as narrow as possible. but a private nuisance per accidens can be created/maintained without negligence. and trailer accommodations. High Penn Oil Co. Boomer approach to permanent damage. costing P $400K. D failed to end this after given notice.A system of comparative fault should be extended to strict liability actions. An individual can bring an action in public nuisance. In most jurisdictions it is a complete defense if P knows all the dangers and assumes the risk. restaurant. but must show that his injury is different than the damage suffered by the general public. So P can’t recover. Whether Matthews contributed to his own death so that Ford should not be held liable? No. He was standing beside the tractor when he started it and it was in gear. but the tractor shouldn’t have started in gear. Contributory negligence is not a defense here because the negligence was reasonably foreseeable by Ford. – relationship between Hercules and P PECO is that of a vendor and remote vendee of land. Matthews – Matthews was killed as a result of being run over by his tractor. – P owns land on which he had his home. D didn’t invade P’s land because P is the purchaser. but that he is exercising the same right as the public (in this case. PECO had full opportunity to inspect the property beforehand. PA Department of Environmental Resources discovered resinous materials and directed PECO to eliminate them. pure water).

But cts will take it into consideration when calculating damages. Atlantic Cement – Ps brought action for nuisance against neighboring cement plant. We hold that the trial ct was not erroneous and find no nuisance. smoke. because of the common right to the public being freedom from light pollution. Simplot Co. birds. Nothing to indicate trash trucks were other than the usual and normal city operations. In a majority of jurisdictions. the Ct rejects Spur’s “coming to the nuisance” defense. Ct of App reversed and claimed that the trial ct didn’t give good jury instructions on Restatement 826(b). which allows for a finding of nuisance even if the gravity of harm is outweighed by the utility of the conduct if the harm is serious and damages don’t cause the business to discontinue. D’s operation (fans blowing on P’s property. but most states do because it provides an equitable alternative. However. Del Webb has to pay for the advantage. McNichols v. To eliminate the utility of conduct from the criteria to be considered in determining nuisance would place unreasonable burden on these industries. [There is a dissent who thinks otherwise. which constitutes a special damage exercising a right common to the public. New trial. Idaho doesn’t follow Restatement 826(b). . But damages can’t be based on a diminution of value of land – location is not a nuisance. Feedlots argue that there were there first and that since Del Webb came to the nuisance. [Had it been private. Can be a nuisance when done intentionally. J. Don’t need negligence to be a nuisance. – Ps are homeowners living near D’s cattle feedlot – Ps allege that manure. he doesn’t have relief. Spur Industries v. its location is not.] HYPO: There is a drive-in theatre on the other side of the store and the floodlights of the store affect the movie screen.  Person is subject to liability for intentional if conduct is unreasonable  Person is subject to liability for unintentional if conduct is negligent. “coming to the nuisance” is not a defense. then it’s not a nuisance. Trial ct found that it wasn’t a nuisance. alleging injury to property from dirt. Since this is a public nuisance action. Can the theatre bring a public nuisance action? Yes. or ultrahazardous Rule: A person who intentionally creates or maintains a private nuisance is liable for the resulting injury to others regardless of the degree of care or skill exercised to avoid such injury. & noise constitute nuisance.] RULE: If the nuisanced use is so much more important than what it’s doing to you. dust. Idaho’s economy depends on benefits of agriculture. it s natural there would be an increase in # of ppl visiting. reckless. Winget v. Double R Cattle Co. Nuisance was found after trial and temp damages allowed.R. Del Webb has the standing to claim public nuisance since the common right is to live in a place with no smell and no flies. and the store only operates on weekdays during daytime hrs. and vibrations. [Ps complain about the crowds of ppl and cars. Del Webb’s injury is that he can’t sell this land and thus has the standing to bring a public nuisance action. mining. Boomer v. claiming public nuisance. Del Webb Development – Del Webb developed a community next to Spur Industries feedlots and then sues. should be viewed as Idaho law. that in a nuisance action seeking damages. odor. Carpenter v. the interests of the community (which would include the utility of the conduct) should be considered in determining nuisance. Winn-Dixie Stores – Ps complain the neighboring D supermarket is a nuisance. The drive-in has economic damage. D’s operation is the nuisance. industrial development. Whether the injunction should be granted? Yes. lumber. the ct would have held differently. but injunction was denied. as well as the trash trucks. pollution. lights shining) constitute a private nuisance.] But Del Webb has to indemnify Spur for the cost of moving  act of equity by the Ct. bugs.

inducement (context). P must plead and prove publication (that is was communicated to at least 1 other person). Supreme Ct rules that if permanent damages are attainable. not just damage to reputation alone.” – This could be construed as either defamatory or non-defamatory. P. you can be sued. (4) Colloquium – words are about the plaintiff. King of Torts. P must pleas and prove the 6 elements of common law action for defamation: (1) Words – what was the statement? (2) Publication – communication to a 3rd party. you don’t have to prove special damages. special (pecuniary) damage. Orlando Daily Newspapers – A newspaper article listed the P. Rule: Goes to the jury if it’s ambiguous. the jury decides if defamatory • Pleading & Proof: words. trade.Publication: 2L said this to 1Ls during registration . o Once special damage proven. SEE NUISANCE HYPOS!!! Common Law Defamation • A communication that tends to damage P’s reputation in the popular sense • Judge decides why words are defamatory (or not) on their face: why defamatory. The newspaper can be sued. tricked the FL Bar Association into paying for his expensive clothing bills. (3) Inducement – extrinsic facts that demonstrate context that suggests words are defamatory. so it is a jury question. SEE NOTE 2.Words: proven . Publication must be to someone other than P . (4) Serious sexual misconduct . or office. To make a prima facie case if the statement is not defamatory on its face. publication. then the judge decides as a matter of law (but most of the time it’s a jury question). (3) Business. To make a prima facie case if the statement is defamatory on its face. This article could be construed as either defamatory or non-defamatory. Words: “The bald guy’s evidence class is easy. HYPO: Goldberg is suing a 2L for defamation. (2) Loathsome disease. DEFENSE: Disproving 1 of these elements.Problem: there is a large disparity in the economic consequences of the nuisance and injunction. If the same person or newspaper says the same thing twice. colloquium (about P). (6) Special damages – damages that are pecuniary. so Goldberg would have to prove the 6 elements: . (or a newspaper publishes it). 834 FOR DEFAMATION DEFINITION Belli v. operation of the plant can be enjoined until the amt is paid. • Libel (printed or written defamation) – Slander (defamation) – Slander per se (Whether P must show special damages is the issue) • Group libel – only if group is small enough so individuals are identifiable. • Conditioned privilege for common interests (D burden) can be negated by malice (P burden) In slander per se. If it’s clearly defamatory or non-defamatory. innuendo (defamatory meaning). words & publication to 3rd part = prima facie case • If words are ambiguous. damages for lost reputation are available • Truth of statement is a defense for which D bears the burden [falsehood not part of P’s prima facie case] of production and persuasion. (5) Innuendo – the defamatory meaning. If you repeat a defamatory statement to someone else. there’s still only 1 cause of action . Types: (1) Major crime with moral turpitude. profession.

Doubleday & Co. and each member is referred to. The common law presumes a defamatory statement is false. Lait – D published an article alleging that Neiman-Marcus’s female employees (saleswomen and models) were call girls. P. you’ve established the colloquium (that it’s about you). future loss of business) . or so good. Truth is a complete defense in common law defamation and is something D must plead and prove. it is necessary to prove that the story is substantially true. so D has the burden of persuasion to show it’s true. registered in P’s class and signed a form which stated that she would not take photos. or disclose what goes on in the sessions. But in order to support a defense of truth. D published a novel based on the nude-therapy technique with a principal character using the technique. That defamation by radio. D a novelist.e. which he did not do. not libel. which is slander per se. If a reasonable person would understand P is the person depicted. Kilian v. He could do this with facts: the 2L had his evidence class. . Wands – D circulated reports that P was sleeping with a woman whose husband was in jail.] Group Libel: Neiman-Marcus v. saleswomen can not. none can sue even though the language is inclusive. if fewer people know. in the absence of a script. Innuendo: Students here don’t elect to take easy classes – innuendo is that he is not a good teacher .” All of the models sued. Colloquium: Goldberg has to prove it is about him (i. lacks the measure of durability possessed by written libel. This case modified that small group rule by allowing the salesmen to sue (not granting D’s motion to dismiss)  even though the article says “most” (so only some of the salesmen are libeled) Ct granted the motion to dismiss the individual saleswomen. Special damages: 2 possibilities here  (1) that students won’t take his classes and he’s get smaller raises and won’t have classes to teach. Rule: Where the group libeled is large. Where the group libeled is small. then any individual member can sue. P does this through witnesses. But a lot of ppl sue in defamation for reasons other than money. – D published stories by a war veteran that were not true and which implicated P in unlawful and cruel actions while a commanding officer during WWII at an injured soldiers hospital.] Terwilliger v. All previous cases dealt with written scripts. i. 15 out of the 25 salesmen sued. but the statement was not in the script. Mitchell – P ran a nude psychology class. 852 [Broadcasts today are slander. P claimed that he became ill and was unable to attend to business after hearing these reports (these were the only damages proven). No reasonable person would conclude from the publication a reference to any individual saleswoman. . so the difference is proof of special damages. Shor v. other professors are bald).e. in no way lessens its capacity for harm. SEE NOTE 2. Billingsley – D was on the radio and made a defamatory statement about P. Inducement: students here have a pride in academic vigor and don’t purposefully take easy classes . write an article. and salesmen were “fairies. and 30 out of the 382 saleswomen sued. 843 – no action for defamation of the deceased Bindrim v. But bad health and inability to attend business don’t cut it for special damages  P must show the loss of reputation WITH pecuniary damage. damages will be less. p. [Side Notes: Someone may be defamatory-proof because their reputation is so bad. However. D tries to use the defense of truth. Note 6. it is nevertheless libel. Group too large and no individual named. This affects damages. This wasn’t what happened here. Whether the individual members of each group can sue? Salesmen can. (2) Statement was about his profession. This establishes a prima facie case for the jury. (Note: pecuniary damage can be potential. But even though it is not from a script.

Covering up a defect c. Sullivan was the Commissioner of Public Safety and in charge of police. Rule also applies to “public figures. Knows that he does not have the basis for his representation (3) Intent to cause Reliance on the statement (4) Reasonableness of reliance – justifiable reliance (5) Pecuniary Damages (lost money) Swinton v. This case changed the common law of defamation. (Jacron and Toolbox. An opinion or prediction that implies a fact can be a misrepresentation (2) Scienter (Intent) a. Co. P couldn’t tell from appearance that it was infested and it cost him to take care of it. and that D made the statements with malice (ill-will).Libel per se and Libel per quod: At common law special damages were never required for Libel. but not in respect to some specifics. so that all libel was libel per se. had a close relationship) He had not. Griffith v.” Fraudulent Misrepresentation • Misrepresentation is a contract action minus privity. Maker knows or believes that the matter is not how he represents it to be b. who had purchased from a real . 929-932 New York Times v. P may show that the privilege is conditional. Sindorf v. which contained statements that detailed the activities of the police in Alabama during the Civil Rights Movement. Sullivan – A number of civil rights leaders put an article in the NY Times. The article was substantially true. Byers Constr. False statement about an existing fact that speaker knows to be false b. Jacron Sales – P resigned from Jacron. (If there’s no factual dispute. Nondisclosure of a defect does not create liability for breach  THIS CHANGES NEXT CASE Caveat emptor – buyer beware. if there is an imbalance of knowledge d. An omission. But did Jacron lose this privilege by maliciously defaming P? This should be a jury question because reasonable minds would differ on the issue of malice. P. or nondisclosure. Sometimes there was an exception called libel per quod. but kept some of the inventory and went to work for Tool Box Corp. Libel per quod is when a statement was not defamatory on its face and it was necessary to be aware of certain extrinsic or unstated facts in order to appreciate its defamatory implications – P has to prove those extrinsic facts. Whitinsville Savings Bank – D sold P a house knowing it was infested with termites (1942). the employee told the president that some $ from sales and merchandise had not been accounted for and warned him to watch his stock carefully and other derogatory insinuations. Does not have confidence in the accuracy of his representation that he states or implies (unsure) c. Ct rules the purchasers. [That the info was volunteered is circumstantial evidence of malice – SEE NOTE 4. A public official plaintiff must plead and prove the statement was false and must prove actual malice (“knowledge or reckless disregard that the statement is untrue”). Torts allows for no privity. Benefit of political debate outweighs defamation. but during the phone convo. Issue: Jacron enjoyed a conditional privilege to defame P (former employer to new employer about a former employee). – D developed a residential area which he knew or should have known would not sustain vegetation because of saline content of the soil. • Elements of fraudulent misrepresentation: (1) Material Misrepresentation a. it would be a law question for the judge). 930] NOTES P. although competitors. What is conditional privilege and what can negate it? D has the burden of persuasion – the privilege must be pled and proven by D. An employee from Jacron called the Pres of Tool Box to see whether P started working for them before leaving Jacron.

” What might constitute a fraudulent misrepresentation is when the buyer is inexperienced (i. Issue: Whether the salesman’s statement could have been detected by ordinary observation. who promised that the Electric Traction Co would complete its electric RR and would run cars over from Minneapolis. from mfg. So no fraudulent misrepresentation. Opinion: Vulcan Metals v. P had ample opportunity to test the AC on his own. Peek – Ds induced P to purchase stocks in their company. Ds honestly believed they’d have permission. The doctrine of privity is no defense if Ps are within a class of persons that the D intends to reach and expects will rely on his representation. But misrepresentations must be fraudulent and require scienter (speaker knows statement is false. 2nd Circuit ordered a new trial. But D’s general “puffing” or “trade talk” are not sufficient to make a misrep cause of action. . – Ps entered into K with D.” P should have known this was only “trade talk. Salesman told him the car had AC. Ds believed they would have no problem getting approval to use steam power on their railway and so advertised it. Ds had not yet obtained the actual permission and were later unable to obtain it for the whole railway. – D sold P vacuums with misrepresentations on the quality of the vacuums (basically that they were the best). Rule: Jenkins v. but only for the misreps that the vacuums had never been put on the market (should be a jury question whether this was determinative of P’s decision to buy them). Here the ct decides that P was somewhat business savvy (owned his own business) and could read and write. that D would make Antlers Park an important summer resort for ppl living in Minneapolis. or b.5 hrs. One who makes a fraudulent misrepresentation or concealment is subject to liability for pecuniary loss to the persons whom he intends or has reason to expect to act or to refrain for action in reliance upon the misrepresentation or concealment. Electric Investment Co. the silence and failure of the vendor to disclose the defect in the property constitutes actionable fraudulent concealment. Privity doesn’t matter (but the buyer must be within the class of ppl likely to rely). Did P reasonably rely? Ct looks at the intelligence and experience of the misled individual and the relationship between the parties to determine this. Here the misrepresentation was not intentional. Prediction and Future Acts: McElrath v. and that P would make no less than $1500 per yr with the help of D.” See Restatement 551 as well. making P buy the stocks.estate company (and not D) could recover on the theory of fraud. careless of whether it is true or false (3) If fraud is proved. the motive of the person guilty of it is immaterial. So the ct decides this was not even a jury question – P should have tested the AC as a matter of law. There is no liability when this is the case because of reliance. Basis of Liability Derry v. Rank Buick – P went to Ds used car lot to buy a Chrysler with AC. Elements for an action for Deceit (DIDN’T GO OVER THIS IN CLASS? This was in Dean’s Scholar) (1) Must be proof of fraud (2) Fraud is proved when a false misrepresentation has been made a. The RR ended up not being built. to customer). or c. Simmons Mfg. P discovered after buying that the car only had ventilation and no AC. Without belief in its truth. Recklessly. It does not matter that there was no intention to cheat or injure the person to whom the statement is made. Reliance: Williams v. and he took it out for a test drive for 1.e. or speaker is unsure of truth. McCormick: “Where a vendor has knowledge of a defect in property which is not within the fair and reasonable reach of the vendee and which he could not discover by exercise of reasonable diligence. Here both P and D were experienced businesses – they stood “on equality. or speaker knows there’s no basis for his statement). Knowingly. There were also misrepresentations that the vacuums had never been put on the market.

000 $510. Promise of future acts can in some circumstances be a misrep if the seller made them so that the buyer will rely and the buyer reasonably relies. G. Erie R.Whether future intentions in this case constitute a cause of action for fraud? Only in regards to the RR because D intended to cause reliance and P’s reliance is justified (D had no control over the other promises and they had known uncertainty surrounding them so P couldn’t rely).000 Modified: P at 0 0 $510.000. How jury instructions are handled matters a lot in a comparative state. *** Comparative Results: Plaintiff has $1. Arthur Anderson & Co. Putnam’s & Sons Hanberry v. v. Touche Credit Alliance Corp.000 $510. Hearst Corp.000 in damages Recovery if: P’s fault = 80% P’s fault = 50% P’s fault = 49% Pure Comparative: $200. Negligent Misrepresentation International Products v. Winter v. [Insurance companies prefer contributory negligence. Ultramares Corp v.000 fault less than ½ (49%) Modified: P at 0 $500.] .R.000 $500.P. Opinions and predictions can be the basis for misrepresentation.000 fault not more than ½ (50%) *Critical difference between 49% and 50% states Jury is being asked to make these very fine assessments.