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CHAPTER 1. OVERVIEW OF MODERN TORT LIABILITY A. Personal Injuries and Property Damage a. Tort law seeks to: i. Allocate rationally and fairly the costs of past accidents by determining whether and in what amount the ∏ is entitle to recover from the ∆ ii. Seeks to minimize the cost of future accidents by deterring persons from engaging in activities that are likely to give rise to harm B. 3 Categories of Tortious Conduct a. Intentionally Inflicted Injury b. Failure to Exercise Reasonable Care c. Strict liability CHAPTER 2. BASIC INTENTIONAL TORTS Intent: (1) Purpose – personal desire on the part of the actor to produce a particular result (2) Knowledge – actor is substantially certain that a particular result will occur, even if that end is not desired
a. Garratt v. Dailey – woman, who had arthiritis, had already begun the slow process of sitting b.
down when the boy moved the chair, and therefore he knew, with substantial certainty, that the woman would fall. Accordingly, boy was held liable Vosburg v. Putney – young schoolboy deliberately swung his foot across the aisle to trip a classmate, which resulted in unexpected serious medical consequences for the victim. Because
I. THE CONCEPT OF INTENT Intentionally Inflicted Injury A. Proof of intent to harm is not a pre-requisite to intentional tort liability. The ∆ may be liable although intending nothing more than a practical joke. B. Intent that is necessary for battery is the intent to make contact, not the intent to do injury. a. Lambertson v. United States – in an act of one-sided horseplay, an employee of ∆ jumped on the ∏’s back and pulled a cap over his face, causing him to strike nearby meat hooks and sustain injuries. Even though the ∆ meant “no harm,” it is irrelevant b/c ∆ had the intent to make contact Intent and Mistake A. The fact that a ∆ makes a mistake in good faith, and perhaps even reasonably so and unavoidable, does not by itself serve to absolve the ∆ of liability, so long as the result was intended a. Ranson v. Kitner - ∆ shot the ∏’s dog, thinking it was a wolf. Although they were acting in good faith, court held they were liable b/c the impact of the bullet on the animal, was intended and not the result of inadvertence. However, had the ∏ disguised the dog as a wolf for the purpose of tricking the ∆s, the ∏ would not have been allowed to recover (exception). B. Policy of the law is that as b/w two parties who may be equally blameless, the loss should be placed on the party who made the mistake and intended the result C. Exceptions: a. Mistake and privilege – the existence of a mistake may give a ∆ the ability to assert a privilege which will defeat the tort (i.e., conduct of a police officer, self defense) b. Induced mistake -- ∆ may escape liability by proving that a mistake about the facts was induced by the ∏, for under such circumstances the parties are no longer equally blameless (tricking someone); thereby, conduct constitutes consent c. Consent is a complete defense
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TORTS I OUTLINE_ FALL 2009, PROF. LIU
Intent and Insanity A. McGuire v. Almy - ∆, a “mental case,” struck and injured her nurse w/ a piece of furniture after threatening that if anyone entered her room “she would kill them.” Court found that in some instances other policy considerations take precedence ocer the fault principle. If the ∆ is capable of entertaining, and in fact entertains, the same intent that would be sufficient to hold a sane person liable, then liability will be imposed regardless of whether the insanity produced the intent. a. Courts decided McGuire v. Almy based on three policies: i. Deterring accidents – “imposing liability tends to make more watchful those persons who have charge of the ∆ and who may be supposed to have some interest in preserving his property.” ii. Deep pocket rationale – a loss should be shifted to the one who caused the loss, if that person can afford to bear it iii. Judicial efficiency (policy of avoiding “dismal swamps”) – “courts lath to introduce into the freat body of civil litigation the difficulties in determining mental capacity which it has been found impossible to avoid in the criminal field.” Transferred Intent A. If the ∆ intended to cause any one of the 5 trespassory torts (battery, assault, false imprisonment, trespass to land, and trespass to chattels), the ∆ “intended” to cause an invasion w/in that range of actions that befalls either the intended victim or a 3rd party. i. ∆’s intended act is so wrongful that the ∆ should not be permitted to escape liability for damages that in fact were inflicted merely b/c the ∆ did not fully anticipate the source of events as they matured (1) Keel v. Hainline – Eraser battle erupted while a teacher was absent from a classroom. Although the boy throwing the eraser intended to strike or scare someone near the far wall, the projectile followed a different course, hitting the ∏ in the eye (battery). The court held the ∆ liable on transferred intent. The ∆ intended to invade the interests of the ∏, and in that sense the resulting harm was not accidental, even if unexpected. ii. Exception: if the ∆’s conduct was not wrongful in the first instance, the doctrine of transferred intent should not give rise to liability (1) Brudney v. Ematrudo – police officer attempted to use reasonable force to liberate another officer from an attack by a demonstrator during a campus riot. In the process, the officer struck a third person w/ his nightstick. Court held that there could be no liability to the third person for assault or battery b/c the ∆ had acted w/in reasonable limits. Liability for the Torts of Minor Children ----- PG 54 of txbook A. Liability for the Torts of Minor Children a. General rule: children are liable for their torts. However, immaturity may be a factor in negligence… parents are generally not liable for the torts of the minor, however, they can become liable when: vicarious liability (respondent superior), primary liability (concerted action, failure to control), and statutory liability i. If the minor child has money or property, the judgment may be executed against those assets (1) If there are insufficient assets from which to collect a judgment, the judgment-holder may continue to renew the judgment, at statutorily prescribed intervals, until such time as the child obtains money or property on which to execute. ii. Parental-liability statutes vary in coverage. Namely, those concerning the type of conduct which may serve as the basis of liability and the limits, if any, on maximum dollar recovery. Under some statutes, the child must be of a certain age (13-18) and the tort must be of a particularly egregious nature. iii. Parents or guardians may be held vicariously liable for a minor child’s tort if the ∏ can establish that the tort was committed w/in the course and scope of a relationship to which the doctrine of vicarious liability applies, such as employer-employee or principal agent. (A mother may be held liable for an auto accident caused by her daughter in the course of making a delivery for the mother’s business.) iv. Liability of a personal nature will be imposed if a parent directs a child to commit a tortious act or knowingly assists tortious conduct. Also, a parent may be held liable on a primary negligence theory for failure to control a child w/ specifically known dangerous tendencies. v. The actions of a child may fall w/in the scope of the child’s parents’ insurance coverage
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TORTS I OUTLINE_ FALL 2009, PROF. LIU
*Vicarious Liability-mental liablility for the wrong of another in the cause of buisness
CLZ Tort 2010
TORTS I OUTLINE_ FALL 2009, PROF. LIU
II. BATTERY & ASSAULT Overview A. A tort victim unaware of an offer of physical contact prior to its infliction suffers a battery without an assault. And if the victim is cognizant of an imminent threat, but the perpetrator resists before the blow is struck, there is an assault without a battery. Thus, either tort may exist independently of each other, although the two actions frequently coexist, as where, the ∆ grabs the ∏ by the throat and physically prepares to strike. Battery Battery: the intentional infliction of harmful or offensive contact w/ the ∏’s person w/o consent or privilege. ∆ ∏ Intent Contact (1) purpose, OR (1) Harmful, OR (2) knowledge (2) Offensive No privilege No consent
A. Elements for a prima facie case: a. Intent (purpose or knowledge) to make contact (or transferred intent) b. Offensive (i.e., unreasonable) or harmful touching of the ∏’s person or effects; AND c. Absence of consent B. Notes on Battery a. Harmful and Offensiveness i. Intent to make contact followed by contact that is unconsented (harmful or offensive) is all that is necessary, NOT INTENT TO INJURE. ii. Harmful – any unconsented alteration of a structure or function of the body even if the change does not affect the ∏’s health. iii. Offensive – standard is that of an ordinary person, unless the ∆ knows that the ∏ has a peculiar sensitivity, in which case a touching may be actionable even if it would not be considered unreasonable by an ordinary person. b. Presumed Consent i. Not every intentional touching of another’s body is a battery. It MUST be unconsented to and either harmful or offensive. Contact is offensive if it would offend a reasonable person’s dignity. Consent can be presumed in cases of the conduct of everyday affairs: (1) Noble v. Louisville Transfer Co. – no battery when the taxi driver steadied a little girl who was ill by placing his finder on her shoulder. c. ∏’s Protestations i. ∏’s protestations can sometimes render permitted contacts into unpermitted ones d. Good intentions and important goals i. If the evidence established an intentional, unconsented touching that is harmful or offensive, it is irrelevant to the issue of liability that ∆ sought merely to advance the ∏’s interests or acted in furtherance of some other important goal. Good intentions are irrelevant in the face of unintended contact which is harmful or offensive. e. Indirect force i. Indirect contact may give rise to battery. The contact required for battery need not be brought about by the direct application of force to the ∏’s person or effect (pulling chair out from someone, poisoning someone’s food, operating truck to throw someone out of the bed, striking glass so that fragments shower the ∏). (1) Moore v. El Paso Chamber of Commerce – case where a young man chased the ∏ into a glass door while attempting to catch her. The fact that the girl failed to exerise care on her own behalf was irrelevant to the question of liability. Contributory negligence is not a defense to an intentional tort. ii. The protection from unconsented contact afforded by the law of battery extends to every part of the body and to anything attached to it and practically identified with it
CLZ Tort 2010
TORTS I OUTLINE_ FALL 2009, PROF. LIU (1) Picard v. Barry Pontiac-Buick - ∆ placed his index finger on the ∏’s camera while shouting, “who
gave you permission to take my picture.” The result would have been the same if the camera had been an article of clothing, a book, an umbrella, or a package. Unanticipated Consequences i. “Eggshell Skull” – if the elements of battery are shown, it is irrelevant that the resulting injuries are more extensive than might reasonably have been anticipated (public policy argument). Eggshell Skull: The ∆ takes the ∏ as he finds him. ∆ is liable for foreseeable harms even when the amount of harm is not foreseeable. In other words, the ∆ is liable for aggravation of pre-existing injuries or conditions.
g. Affirmative Action i. An action for battery cannot be predicated upon mere inaction; there must be some affirmative action on the part of the ∆ you must act for liability of battery h. Knowledge of Contact i. The ∏’s lack of awareness of the contact at the time it occurs, for example, because ∏ is asleep or under anesthetic, will not defeat an action of battery. C. It is important to consider: a. The relationship of the parties involved b. Availability of alternatives c. Degree of force that was used d. ∏’s voluntary presence at a location where touching was foreseeable e. Anger is not a prerequisite for battery D. Recovery: a. Nominal – to vindicate the technical invasion of the ∏’s rights, if no actual injuries b. Compensatory – compensate the ∏ for such things as lost wages, medical expenses, and pain and suffering c. Punitive or exemplary damages – to punish or make and example of the ∆ for conduct that is particularly outrageous Assault Assault: ∆ Intent (1) purpose, OR (2) knowledge Conduct Words alone no assault (sometimes) Future threat no assault Conditional threats depends on ∆’s legal rights ∏ Aware of the danger ∏ believes that ∆ has the ability to commit the threatened contact. Imminent Apprehension: without delay Fear is not required Reasonableness of Reaction: R2T: It is irrelevant if a person of ordinary courage would have been put in apprehension; subjective standard Most courts: reasonable person standard
A. An assault is committed if the ∆ intentionally creates in the ∏ a well-grounded apprehension of imminent, unconsented, bodily contact. The elements which the ∏ must prove are: a. Intent (purpose or knowledge) to cause apprehension of contact (or transferred intent) b. Present apparent ability to cause contact c. A threatening gesture by the ∆ (at least in most instances); AND
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∏ must be aware of the ∆’s threatening conduct at the time it occurs i. Notes a. Well-grounded apprehension of imminent. Abusive language – almost never IIED i. Emotional distress covers: a. Elements a.TORTS I OUTLINE_ FALL 2009. Requires proof of damages. b. even if profane. A threat to cause harm in the future does not constitute an assault. and d. ii.No assault i.” “utterly intolerable in a civilized community” c.∆’s employee verbally propositioned a woman who wanted to get her clock fixed. Unhappiness and depression over inability to lead one’s prior life d. Extreme and outrageous conduct c. and it does not enjoy the benefit of the doctrine of transferred intent. unless the ∏ can prove intent or recklessness with regard to the infliction of the mental suffering b. unconsented contact B. Humiliation c. Future Threats . LIU d. For conduct to be “extreme and outrageous. Intent (purpose or knowledge) to cause emotional distress or recklessness w/ respect thereto. PROF. they may support a claim for IIED (sometimes called the “tort of outrage”). b. Verbal qualifications attached to what otherwise would be a threat may prevent the ∏ from proving well-grounded apprehension of contact c. B. Egregious Conduct Requirement i. Anxiety about the future e. INTENTIONAL OR RECKLESS INFLICTION OF SEVERE EMOTIONAL DISTRESS Overview A. v. also for the bodily harm. Court held that the issue of assault was properly submitted to the jury.” it must be “beyond all possible bounds of decency. Although threats of future harm or words alone generally cannot sustain an action for assault. since there was testimony from which it could be found that the employee had the ability to reach over the counter and grab the woman. Anger IIED: an actor who by extreme and outrageous conduct intentionally or recklessly causes severe emotional disturbance to another is subject to liability for that emotional disturbance and if the emotional disturbance cause bodily harm.” “atrocious. Words alone are not enough to constitute an assault . Resulting severe mental distress B. Conduct which does nothing more than cause trivial upset or minor discomfort will not support a cause of action. Exceptions: court make 2 misstatements of the law in rendering its opinion: every battery does not include an assault and assault is not necessarily an attempt to commit battery. ∆ ∏ (1) Intentional or Reckless (4) Severe emotional distress (2) By extreme and outrageous conduct (3) Casual Link IIED A. Abandonment of Scheme i. Insulting words. will almost never constitute extreme and outrageous conduct CLZ Tort 2010 6 . Notes on Assault a. Western Union Telegraph Co. for in such a case harm is not imminent d. Fright and shock at the time of an accident b.no assault i. Causation. Hill . The ∆’s abandonment of a scheme to inflict an assault or battery does not bar liability for assault if the ∏ has already been placed in apprehension III.
PROF. because of general insensitivity. if such distress results in bodily harm IIED.) (3) as an independent action for IIED IV. or later learning about. In order to prevail in an action for outrage.∆ taunted the ∏ b/c of a speech impediment that he had been afflicted w/ for many years.TORTS I OUTLINE_ FALL 2009. and that the ∏ showed visible signs of increased nervousness. Known sensitivity i.3rd Party: to recover --(1) Immediate family member present at time of tort… bodily harm not required (2) Other persons present at time…. Bystander and third persons i. Food Fair Stores of Florida . or uncommon courage.” IIED. Where such conduct is directed at a 3rd person.Insulting Language: unlikely to be sufficient to give rise to liability for IIED 2 EXECPTIONS: (1) if ∆ is an employee of a common carrier or public utility (2) if ∆ has special notice of ∏’s unusual sensibility d. The ∏ testified he was “shaken up” and “felt like going into a hole and hiding. his case would have been better off in presenting “evidentiary particulars” which the court deemed it lacked. Under limited circumstances a bystander may sue for emotional distress suffered as a result of witnessing. Jones . whether or not such distress results in bodily harm. Court said his testimony was “vague and weak at best. Had his atty brought forth testimony of those who worked and lived w/ the ∏ to prove that the stutter was more noticeable. stone faced). etc.” and denied recovery. or (2) To any other person who is present at the time. that the harassment affected the ∏’s ability to work. Avenues for Recovery IIED. the ∏ must prove that the ∆’s extreme and outrageous conduct in fact caused severe emotional distress.∏ denied recovery when told by the grocery clerk. outrageous conduct directed toward another. and had allegedly suffered heightened nervousness and aggravated speech problems. the actor is subject to liability if he intentionally or recklessly causes severe emotional distress: (1) To a member of such person’s immediate family who is present at the time. LIU (1) Slocum v. a stoic disposition (no care.” He had seen a physician. There is no right to recovery where. e. FALSE IMPRISONMENT Overview-confinment can cause anguish CLZ Tort 2010 7 . the ∏ was not significantly affected by what the ∆ did (1) Harris v.4 Avenues for Recovery (1) as a parasitic claim incidental to a tort involving physical injury (dependent upon bodily harm) (2) as an element of recovery in an action for non-physical injury torts (libel. “If you want to know the price. Bodily harm required C. slander. you’ll have to find out the best way you can…you stink to me.
PROF. threat of force. assertion of legal authority i. or to the ∏’s property. Confinement must be complete. stating that more is required than some mere loss of freedom to where one wishes: there must be detention w/in fixed boundaries. Confinement from negligence or recklessness is not redressable by this action. AND e. Some degree of imminency required in cases where FI is accomplished by making a threat (like assault) i. or assertion of legal authority by the ∆. LIU False Imprisonment – Act. or to the person or property of others (b) If the only means of escape is likely to cause physical harm to the ∏. is not FI. Moral pressure. There is no action if the ∆ merely obstructs the ∏’s travel in one direction.∏ climbed over a fence into a portion of the highway which had been enclosed for spectators of a boat race. not partial. Notes a. Confinement. threat of force. and the ∏ could safely remain imprisoned. ∏’s confinement must be involuntary. Intent (purpose or knowledge) to confine b. there can be no recovery for injuries that are suffered in making an escape c. intent. as opposed to the application or threat of physical force or the assertion of legal authority. Harm to the ∏ or knowledge by the ∏ of the confinement B. negligence not sufficient a. i.” The required intent is the intent to confine. FI is an intentional tort. Submission to a verbal direction of another. whether against the ∏ or a family member. but allowed to return from whence he came. or property) No consent (4) assertion of authority False Imprisonment A. g. Thus. causation. h. Jones . If it is caused by the use of physical force. ∏ must show proof of damages b. is generally held to be an insufficient predicate for FI. the force need not be sufficient to subdue the ∏ or even to overcome the resistance of an ordinary person. Morales v. The court held there was no false imprisonment. Some states embrace the position and hold that even in the absence of knowledge of confinement there is liability if the confinement results in harm to the ∏ (“∏ is aware of the confinement OR harmed by it”) e. Unconsented detention w/in boundaries fixed by the ∆ c. awareness ∆ ∏ Intent ∏ is aware of the confinement or harmed by it Confinement by (1) physical barriers ∏ believes that there is no (2) use of force reasonable means of escape (3) threat of force (including to a 3rd party. d. (2) Confinement is not complete if there is a reasonable exit apparent (a) Known exit is not reasonable if it entails a likelihood of harm to the ∏. Unlawful force. unaccompanied by force or threats. Elements for a prima facie case *have to act. A threat to call the police may be accompanied by other words or acts which indicate that the speaker will resort to imminent force if necessary to enforce a demand. Use of unreasonable force. the confinement will be actionable. or by an express or implied threat of the same. Lee – no false imprisonment b/c the ∆ had merely threatened to call the police and to have the ∏ arrested unless she remained in the office. ∏ was stopped from traveling further in the same direction. Unconsented intentional confinement w/in boundaries i. There must be actual intent or “substantial certainty. if the ∏ is otherwise free to go: (1) Bird v.TORTS I OUTLINE_ FALL 2009. f. Apparent lack of a reasonable exit d. a suit may not be brought by one who has remained at a place merely to clear away suspicion or wrongdoing or to avoid making a scene. False arrest is a variety of false imprisonment in which the ∆ unlawfully asserts legal authority in CLZ Tort 2010 8 . If confinement is to be accomplished by physical force.
State of mind need only be intent to be present at the place in question. Although the confinement was initially non-consensual. possession.TORTS I OUTLINE_ FALL 2009. intent. Shopkeepers privilage 1. Intent i. for the officer did not purport to act on that basis. under. A private citizen may conduct a citizen’s arrest of a person who has committed a misdemeanor only if the crime was committed in the individual’s presence and involved a breach of the peace (1) Johnson v. for purposes of investigation 3. this investigation privilage may be invoked by non-shopkeepers. for there was no statute or decision in the jurisdiction which imposed on the ∏ a duty to produce her license under the circumstances in question. May only be maintained by one who is a possessor. Fact that intrusion would ordinarily be deemed beneficial does not keep it from being a trespass iii. at least for several days. A reasonable and honest mistake by the ∆ as to ownership or permission to enter is irrelevant to a prima facie case (1) EXCEPTION: if the mistake is induced by the ∏. consented to confinement by failing to avail herself of numerous opportunities to escape. physical discomfort. Involuntary and unprivileged confinement (1) Peterson v. Relevance of guilt i. Court suggested that the period of consent constituted a waiver of the earlier forced detention and barred liability for false imprisonment. not intent to go upon the land of another. Groves – policeman took the ∏ into custody after she had refused to produce her DL. or above the land of another i. it matured to a point where the girl. TRESPASS TO LAND – actual land property Overview A. or that she was subsequently convicted of that infraction. Unconsented physical presence on. a shoekeeper may temporarily detain 2. b. (a) An informed and reasoned consent is a defense to an allegation of false imprisonment and that a nonconsensual detention could be deemed consensual if one’s behavior so indicated *recoverable damages-comp for loss time. that is: (1) One who is in occupancy doing things which manifest to the world a claim of exclusive control CLZ Tort 2010 9 . Court found that the assertion of authority was unlawful. V. order to confine the ∏. A guilty party can almost never bring a charge of false arrest ii. act) A. forcibly abducted their daughter for the purpose of “deprogramming” her. LIU j. in or near a store A reasonable mistake does not destroy the privilege. Court held that the store was liable for false imprisonment b/c the alleged misdemeanor was not committed in the presence of the personnel who detained the ∏ and there was no imminent threat of a beach of the peace. Barnes & Noble Booksellers – sales clerk who was allegedly touched inappropriately by a customer called other personnel who then detained the customer for more than an hour. ii. Police must have probably cause for arrest. (2) A civilian who unlawfully asserts legal authority will be liable for false arrest. in which case ∏ may be estopped from claiming trespass. Trespass to Land (Quare Clausem Fregit)-PIPIA (physical invasion. physical illness. (1) Enright v. inconvienience. not intent to violate another’s rights ii. Sorlien – parents whose adult child had allegedly been “brainwashed” by a cult. Protects the possessor’s interest in exclusive possession of land. one reasonably suspected of theft 4. (2) The line is drawn b/w intentionally providing false information to the police (which may give rise to liability) and merely providing inaccurate information (which does not give rise to liability). It made no difference that the officer might have arrested the woman for a violation of the municipal leash law. PROF. Elements for a prima facie case a.
possession) A. Dispossession §221 ii. it that the actor may justly be required to pay the full value of the chattel.TORTS I OUTLINE_ FALL 2009. unless B fails to leave w/ reasonable dispatch) iii. conversion will lie in cases of major interference with the ∏’s rights. Trespass – measure of damages in trespass is not the whole value of the property interfered with. quality. Conversion – uses an unusual measure of damages i. PROF. A. Intent (purpose or knowledge) to affect the chattel b. but B is not liable. B. Market value is the price converters pay for goods (replevin plus incidental expenses is also allowed) b. damages. Distinction b/w conversion and trespass to chattels is important b/c of the way in which damages are calculated. Trespass to Chattels (TEMPORARY/ MINOR)-Dispossesion-don’t have to show damages Intermeddary-have to show damages Important to know a suit for trespass may be mainteied not only by possessor by one who is entitled to possestion @ a future time. intent. which so seriously interferes with the right of another to control. but rather the actual diminution in its value caused by the interference i. *Don’t have to prove damages to prevail in a prima facia case VI. Intermeddling (meaning physical contact) iv. or value B. Dispossession CLZ Tort 2010 10 . LIU (2) If no one is present. In the absence of dispossession (from which damage may be inferred). trespass to chattels applies to a relatively minor interference. proof of damage in the form of: (1) Substantial loss of use (2) Impairment of condition. Minor interference w/ the ∏ possessory interest by: i. Protects the possessor’s interest in freedom for minor intentional interference w/ personal property. one who last ceased occupancy w/o intent to abandon (3) If neither. Use iii. Actual damages are required for trespass to chattels (nominal damages will not be awarded) Trespass and Conversion The intentional exercise of dominion and control over another’s personal property may give rise to an action for conversion or for trespass to chattels.Compensatory Conversion: an intentional exercise of dominion or control over a chattel. Physical intrusion requirement is satisfied if the ∆. a. . A is liable for trespass. Notes a. TRESPASS TO CHATTELS (de bonis asportatis) & CONVERSION – personal propepety Overview-AID Possession (Act. In general. instead of entering. intentionally casts an object upon the land or causes another to enter (throwing trash) (A pushes B onto C’s property. Elements for a prima facie case a. one who has the right as against all other persons to immediate occupancy ii.
the interference must be substantial. but only if: (1) he dispossesses the other of the chattel. Block access or destroy the chattel In the absence of dispossession. That is to say. ∆’s conduct constituted trespass to chattels b/c even though it did not physically damage the ∏’s computer equipment. PROF. CLZ Tort 2010 11 . or (3) the possessor is deprived of the use of the chattel for a substantial time. or (4) destroying a chattel while it is in another’s possession. many of whom were customers of the ∏’s online computer service. The difference b/w the two torts is a matter of degree. a cause of action will not lie for mere momentary or theoretical deprivation of use. or (5) taking the chattel into the custody of the law -----Put simply: A. or (3) barring the possessor’s access to a chattel. for many had objected to receiving unsolicited email. ∆’s conduct also actionable b/c it harmed the ∏’s legally protected interest in its relationships w/ its customers. or (2) obtaining possession of a chattel from another by fraud or duress. b. notwithstanding repeated demands by the ∏ to cease those activities. Take over . or (2) the chattel is impaired as to its condition. quality. it diminished the equipment’s value by demanding disk space and draining its processing power. or value. Conversion is a more serious version of the type of interference which gives rise to trespass to chattels. (1) CompuServe Inc. B.TORTS I OUTLINE_ FALL 2009. LIU § 221 Dispossession A dispossession may be committed by intentionally (1) taking a chattel from the possession of another w/o the other’s consent.by fraud or duress . Liability under §218 One who commits a trespass to a chattel is subject to liability to the possessor of the chattel if. Cyber Promotions . or (4) bodily harm is caused to the possessor. Recovery for damages i. or harm is caused to some person or thing in which the possessor has a legally protected interest Conversion (PERMANENT/ MAJOR) A.w/o consent .∆s sent unsolicited e-mail advertisement to thousands of Internet users. v.by law B.
Notes a. inconvenience and expense cause to the other No one factor is always predominant in determining the seriousness of the interference… nor is the proffered list intended to be exclusive. A thief is liable for conversion. Mere retention of goods may not constitute conversion. but if it is slow and difficult. even if the BFP pays the full value. Court relied on the fact that the ∆s’ asserted no claim of ownership. the court held that the facts justified a finding of conversion. Liability if: (1) Receiving w/ notice that bailor has no right to the chattel CLZ Tort 2010 12 . Zaslow v. and the same may be true of a finder of goods who intends to exercise dominion over them ii. Purchasers of goods: (1) BFP is one who purchases in good faith w/o notice –receives not title if the BFP buys from a thief. Thieves. Hence.∆’s salesman intentionally refused to return the ∏’s car keys despite repeated demands to do so. actor’s good faith d.” c. No liability: (1) Receiving w/o notice that a chattel is lost or stolen (a) A coat checker who receives a coat w/o knowing it doesn’t belong to the person checking it (2) Re-delivering w/o notice to the bailor who is not the rightful owner (3) Re-delivering to the true owner and not the bailor ii. There must be a demand for their return which is refused. Defrauders. extent and duration of the resulting interference w/ the other’s right of control e. cuts off the original owner’s equitable right to rescind. with the car in the midst of a distant desert. The prank. i. actor’s intent to asset a right in fact inconsistent w/ the other’s rights of control c. (1) “If replacement is quick and easy. had warned the ∏ in advance of their proposed course of action.TORTS I OUTLINE_ FALL 2009. PROF. extent and duration of the actor’s exercise of dominion and control b. Kroenert – court rejected the ∏’s argument that the ∆s’ removal and placing of the ∏ ‘s furniture constituted a conversion. Such a purchaser may be held liable for conversion. Rouse . and the ∏ had incurred no expenses. b/c the thief has “void” title and there is nothing to pass along. Inc. the following factors are important: a. Bailees i. as a matter of law. which apparently happened on numerous occasions. the BFP may be held liable for conversion by the true owner. and Bona Fide Purchasers i. harm done to the chattel f. ∆ Intent (good faith will be considered) Conduct: extent and duration of ∆’s dominion and control ∏ Person: inconvenience and expense Chattel: damage (extent and duration) C. Bona Fide Purchaser may be liable for conversion (2) A BFP who buys goods from another who acquired the goods through fraud may not be sued for conversion by the original owner b/c the good faith purchase. and had furnished notice of the new location of how the goods might be claimed. ∆s’ bad faith figures into the court’s balance of its decision. d. LIU Factors in determining whether ∆ should pay the full value: 222A(2) In determining the seriousness of the interference and the justice of requiring the actor to pay the full value. ceased only when the police arrived. only the tire is converted. It was irrelevant that the ∏ could have called his wife to bring another set of keys and that retention of the keys constituted a conversion of the entire car. Bad faith on the part of the ∆ makes it considerably more likely that conduct will be found to constitute conversion rather than trespass to chattels. there is conversion of the car. Although the interference w/ ∏’s dominion and control was relatively brief. nothing was damaged. (3) One who purchases from a defrauder w/ notice of the prior fraud is not a BFP and obtains no better rights than the defrauder had. Russell-Vaughn Ford. v. b.
Sentimental value is not compensated iv. even though the document itself is not converted (1) Kremen v.com and transfer the name to him. Court concluded that the registrar was liable for conversion b/c it gave away the ∏’s intellectual property. The usual result of a conversion is a forced judicial sale ii. Damages and Replevin i. CLZ Tort 2010 13 . If the converter’s possession is wrongful. The taking of intangible property only if the property is of the type that is customarily merged in or identified w/ some tangible document. NO demand for the return is required ii. Cohen – a third person fraudulently induced a domain name registrar to cancel the ∏’s registration of the name sex. If the owner wishes to get the chattel back. The DNS database served as the document needed to satisfy the connection to a document or tangible object. Any kind of tangible property ii. a demand MUST be made before an action will lie g. What may be converted? i. The converter must pay FMV of the chattel iii. LIU (2) Re-delivering to bailor w/ notice of the true owner’s claim e.TORTS I OUTLINE_ FALL 2009. PROF. Demand for Return i. they may sue in replevin (1) Replevin: allows the ∏ to recover possession of the chattel and to recover incidental damages f. If the converter’s initially obtained the goods legitimately.
though proving may be difficult iv. Means that ∏ actually is willing for the conduct (but not necessarily the consequences of the conduct) to occur ii. apparent. it is said that “all intended wrongs have in common the element that they are inflicted without the consent of the victim B. or medical disability – CLZ Tort 2010 14 . Unlawful Conduct §1 CONSENT Consent: total bar to liability (issue relevant to the ∏’s prima facie case.TORTS I OUTLINE_ FALL 2009. Total bar to liability (actual. or to substantially the same conduct Simply put: Capacity + Scope Consent intentionally procured by fraud is invalid. Defense of property d. Defense of self and others c. (Scope) To the particular conduct. The ∏’s consent to an otherwise tortious act negates the wrongful element of the ∆’s conduct and prevents the existence of a tort. except trespass to land a. Overview A. Consent b. burden of proving lack of consent is upon the ∏) 3 Types: a. and implied consent only) a. Burden of proving lack of consent is upon the ∏ for each of the basic intentional torts. At Least 3 Types of Consent a. This idea is captured n the well known Latin maxim volenti non fit injuria: to one who is willing. extent. Butler – college student pledging a fraternity died due to lethal consumption of alcohol. Can be shown by words. but as an issue relevant to the prima facie case. C. Recapture of Chattels e. (Capacity) By one who has the capacity to consent b. Although he consented to the act. affirmative action. DEFENSES AND PRIVILEGES Defenses & Privileges: a. LIU CHAPTER 3. Actual consent b. Valid bar to liability even if it is not communicated to the ∆ -. In the context of intentional torts. Consent is normally treated not as a defense or privilege for the ∆ to plead and prove. PROF. the individual must have the capacity to appreciate the nature. and probable consequences of the decision (a) Davies v. Modern view: any mistake sufficiently material to play a role in the ∏’s decision-making process will invalidate consent. Private Necessity g. consent must be a. or by silence or inaction under the circumstances indicating willingness iii. agednesss. Implied consent To be effective. no wrong is done i. court found the ∆s liable b/c his intoxication can bear consent (2) Lack of capacity to consent may also arise from infancy. Capacity of consent (1) In all cases involving actual or apparent consent. Public Necessity f. Actual consent (in fact) i. Apparent consent c.
the consent is invalid (1) If mistake is unilateral. such as signing an agreement or deeding away real property. Court found that the parents’ prior refusal to provide consent for resuscitation was irrelevant b/c the child could not be fully evaluated for medical treatment until birth. the consent is invalid. Consent to engage in a criminal act is valid. d. If the ∆ induces the ∏’s mistake OR is aware of it but fails to correct it. the parents’ earlier decision was not fully informed. it must be given to the conduct that actually occurs (a) Ex. Consent is implied b/c the interests to be furthered by the invasion are more important than those which will be sacrificed. and therefore.g. ∏’s consent is invalid. Further. Decedent fought in an illegal prize fight and his family can’t bring a wrongful death action. EXCEPTION: if a statute is intended to protect the class of persons the ∏ is a member of. LIU remember legislature protect certain group so even if they consent you are still liable v. HCA – a hospital could provide emergency resuscitative treatment to a premature newborn child w/o parental consent. Youthful participant in an illegal prize fight could sue the promoter. “Objective manifestation rule” – whether a reasonable person would have understood the ∏’s conduct to indicate a willingness (1) O’Brien v. Cunard – woman who held up her arm to be vaccinated was held to have consented to what otherwise would have been a battery b/c there was nothing in her conduct to indicate a contrary intent iii. B/c the assistant’s lack of training was not disclosed. the emergent circumstances at the child’s birth required an immediate decision. from the type of harm that occurred. Consent and Duress—consent given under duress is NOT valid f. May arise from a failure to object to a well-established. Consent to a criminal act i. actions. ii.but again. and there was no time to consult the parents.g. Roberts – a physician brought a young man w/o medical qualifications to the ∏’s home to assist him while the ∏ gave birth. regardless of consent §2 PRIVILEGES & DEFENSES: IN GENERAL Overview CLZ Tort 2010 15 . or inactions may be reasonably understood to indicate consent ii. iii. e..TORTS I OUTLINE_ FALL 2009. Statute forbidding the sale of intoxicating liquor to a person who is already intoxicated and forbid sexual intercourse with a child under 16. ∏ consents to have a fist fight. The heart of this type of fraud is misleading the other party as to the facts upon which he/she will base his/her decision to act. the loss should fall on the party who made the mistake (2) If mistake is mutual. Implied consent i. the court held that the woman’s consent to his presence and touching of her was invalid to bar a tort of action. The person’s words. ii. Beyond the threshold requirement of knowledge by the ∆. special circumstances such as a medical emergency may make it desirable for a person to engage in conduct that would otherwise be tortious. (1) Ex. Consent to a criminal act will only bar action if the parties stand in pari delicto (equally at fault) iii. and that it cannot be re-fought in the courts – in pari delicto (1) Ex. but ∏ gets hit by brass knuckles b. Scope of consent (1) For consent to be effective. DeMay v. PROF. (e. Apparent consent i. (1) Miller v. there is no good reason to hold that the ∆ was not entitled to rely on the ∏’s manifestation ii. leading someone to sign the wrong contract) (b) Fraud in the inducement – the use of deceit or trick to cause someone to act to his/her disadvantage. “you don’t have to read the rest of the contract—it is just routine legal language”) (c) Recent scholarship has rejected the traditional factum/inducement dichotomy and holds that if the mistake materially affects the ∏’s decision-making process. In the absence of actual or apparent consent. it may be necessary for the mistake to be of a particular type: (a) Fraud in factum – fraud that arises from a disparity b/w the instrument intended to be executed and the instrument actually executed (e. (2) Ex. Consent given because of a mistake i. customary practice c. ONLY IF THE MISTAKE IS KNOWN TO THE ∆.
PROF. what BELIEF is required. what is the EFFECT of a mistake of fact. When considering defenses and privileges consider: WHO may assert the privilege. General category of defenses & privileges include: self-defense. recapture of chattels. B. defense of property. are there SPECIAL RULES? Who Belief Required Effect How much force can be used Any special Rule CLZ Tort 2010 16 . and. Must be plead by the ∆ or else they are not part of the case. HOW much force can be used. LIU A. defense of others. and public and private necessity. a.TORTS I OUTLINE_ FALL 2009.
” ∆ could not claim self defense. §4 DEFENSE OF OTHERS Defense of Others Defense of Others WHO? Anyone WHEN? Who believes force is necessary to protect another HOW? May use reasonable force to do so ---split of authority as to whether a reasonable mistake destroys the privilege A. and the ∏’s physical abuse of the ∆. regardless of what the intervener believes CLZ Tort 2010 17 . Bar brawl. b. Deadly force (force likely to cause death or serious bodily injury) may be used only to defend against deadly force. Under attack. EXCEPTION: if the person intends provocative words or action to induce an attack. A reasonable mistake as to the necessity or degree of force required DOES NOT destroy the privilege. Notes a. (1) Silas v. LIU §3 SELF DEFENSE Self Defense Self Defense WHO? Anyone other than an aggressor WHEN? Who anticipates immediate physical harm HOW? May use reasonable force in self-defense a. Consequently. d. Some (generally older) decisions discourage defense of others by holding that an intervener steps into the shoes of the one being assisted. the shot which the ∆ fired. they amount to a challenge to fight. b. “Hit me. striking the ∏ in the foot. and relative strength of the parties should be taken into consideration. the belligerence of the ∏. the age. EXCEPTION: The Castle Doctrine-.TORTS I OUTLINE_ FALL 2009. one has the duty to flee. and as such constitute consent which will bar an action for intentional tort (1) Ex. Insults will not give rise to the privilege of self defense i. Bowen – court held that b/c of the disparity in the size of the parties. Once there is no longer a threat of continued harm. But even an unarmed person may present a deadly force. Reasonable force i. Use of deadly force is justified only by a threat of deadly force. or car UNLESS that place was also the home or workplace of the assailant. and retreat (depends on the Jxd) A. Mistaken intervention i. Come on. ∏ shouts at ∆. but could use consent. size. the privilege terminates c. if that person has no right of self defense. If the actor is reasonably mistaken as to the necessity for using force or the degree of force required. PROF. if retreat can be made w/ complete safety. ii. iii. it was reasonable for the ∆ to fear serious bodily injury at the hands of the latter.duty to retreat DOES NOT apply to the home. before using deadly force i. bring it – hit me. the intervener’s conduct is not privileged. Notes a. did not give rise to liability. the privilege is still valid. In determining what force is reasonable. workplace.
TORTS I OUTLINE_ FALL 2009. Katko v. which are not reasonable actions given the circumstances (the imminent threat of harm had subsided b/c the boy ran away). A reasonable mistake as to danger and degree of force does not destroy the privilege. it may be decided by the court (1) Drabek v. A possessor’s privilege to eject a person from property is restricted in the sense that the possessor may not expose the person to unreasonable physical danger. Other jurisdictions encourage reasonable intervention efforts by holding that a reasonable mistake as to another’s right of self defense does not destroy the privilege to defend the other b. Force i. more than one response may be reasonable. In a given situation. Ex. there is liability. He restrained the ∏’s liberty and held his arms. b. but if reasonable minds cannot differ.∆ had apprehended a young boy who had been throwing snowballs at passing cars and who might have been expected to do so. c. Sabley . The court was influenced by the fact that less severe alternatives were available. f. Defense against dogs when trespassing does not justify killing the dog. if someone’s dog is trespassing on your property killing your chickens. c. i. A mistake—even a reasonable mistake—as to whether the intruder is privileged to enter destroys the privilege to defend property (unless the mistake has been induced by the intruder). Deadly force may NEVER be used to repel a threat of property UNLESS there is a threat to the safety of others b. ii. Range of response i. reasonably believing that he is armed and poses a threat to the inhabitants of the house. if a homeowner shoots a burglar. there is no liability. A person cannot do indirectly (for example. e. If a homeowner shoots one who under the doctrine of private necessity is entitled to enter to seek shelter from a storm. It was unreasonable to drive the child several miles to the police station after taking him into custody. in which case the defender will not be faulted for not having selected the very best course of action §5 DEFENSE OF PROPERTY Defense of Property Defense of Property WHO? A possessor WHEN? Necessity HOW? May use reasonable. Thus. Notes a. and he is thus liable for false imprisonment and battery. Further held that giving notice of the intended use of a mechanical device does not enlarge that privilege.∆s had rigged a spring-gun to protect an unoccupied farmhouse from break-ins. or merely reporting the child to the police and allowing them to take appropriate action (a) ∆ did not act in self defense b/c he was no longer in danger. But a mistake as to intruder’s privilege destroys the privilege B. Must be reasonable under the circumstances. you can shoot the dog CLZ Tort 2010 18 . for deadly force may not be used if there is no threat to personal safety. They were held liable to a trespasser who was injured by the gun. A reasonable mistake as to the necessity for using force does not destroy the privilege. non-deadly force to defend property a. d. by mechanical device) that which the person is not permitted to do directly i. however. namely identifying the child’s parents and turning him over to them. PROF. Briney . LIU ii. Question of reasonableness is one for the jury.
Reasonable force may be used to detain the individual. although DEADLY FORCE IS NEVER PERMITTED. A mistake. b. Notes a. non-deadly force to retake the goods. if the dispossession is discovered promptly and there is “fresh pursuit” of the wrongdoer. Deadly force may never be used as a part of an effort to recapture chattels. does not justify assertion of the recapture privilege i. A shopkeeper may temporarily detain b. In or near the store i. Distinguishable from the privilege to recapture chattels by the fact that a reasonable mistake does not destroy the privilege b. One reasonably suspected of theft d. PROF. unless such a demand would be futile or dangerous (1) b/c dispossession has already taken place. ANY mistake destroys the privilege A.TORTS I OUTLINE_ FALL 2009. A. LIU §6 RECAPTURE OF CHATTELS Recapture of Chattels – NOT TO BE CONFUSED w/ SHOPKEEPER’S PRIVILEGE!!!! Recapture of Chattels WHO? A possessor WHEN? Wrongfully dispossessed by fraud or force a. this privilege does not apply) CLZ Tort 2010 19 . A reasonable mistake does not destroy the privilege ii. B/c the ∆s promptly discovered the fraud. in which case the privilege is actually one of self defense or defense of others c. non-deadly force to defend property a. the effort to retrieve the goods turns the owner or possessor into the aggressor. If A chases B for return of a chattel and A tackles C.∏ had purchased a stove on credit by making false representations as to his credit worthiness. Any reasonable delay in either discovery or pursuit destroys the privilege. such as an installment purchase of household goods. This “investigation privilege” may be invoked by non-shopkeepers. No force is reasonable until a demand for return of the chattel has been made. For purposes of investigation c. made by the owner is NOT privileged and can be held liable for injuries i. Notes a. Hubbard . A person suffering from this loss may use reasonable. b. their recapture of the chattel was privileged. A default on a typical (non-fraudulent) conditional sale. except if necessary for self defense or defense of others (in which case. however reasonable. A is liable to C B. Ex. quickly pursued the ∏. The store is NOT allowed to go into that person’s home to recapture the chattel §7 PRIVILEGE TO DETAIN FOR INVESTIGATION Shopkeeper’s Privilege Shopkeeper’s Privilege a. To discourage persons from taking the law into their own hands over mere property interest. on exercising the privilege is liable for any mistake as to the facts which create the privilege – unless that mistake is knowingly induced by the ∏ (a) Hodgeden v. and did not initiate deadly force. except to defend life or limb from the use of deadly force by the wrongdoer. Overview a. If there is prompt discovery and fresh pursuit HOW? May use reasonable.
To avoid an imminent risk of greater harm to the community or many persons HOW? To use reasonable force a. CLZ Tort 2010 20 . e. Losses should be spread broadly rather than allowed to fall with crushing weight on one individual b. Tort v. and instead using force to handcuff the suspect until police arrived. If the class to be protected is a substantial number of people B. D. A landowner cannot channel floodwaters onto neighboring property just to save his own property b. demands payment. Silva – Court held that the failure of store personnel to accompany a suspect to his car to see whether he had a receipt. but as in the case of recapture of chattels. Privilege may be invoked non-shopkeepers (i. Taking a. Store was liable for false imprisonment. as he maintained. if that person reasonably offers to drive the firefighter to the site immediately. A privilege is NEVER greater than the necessity a. All that is required for the privilege to apply is that the action reasonably appear to be necessary. law prof detaining a student for stealing the exam) §8 PUBLIC AND PRIVATE NECESSITY Overview A. only where the resistance of the other makes it necessary for the actor to use such force in self defense f. places the individual under arrest.. d. If the detention is longer than necessary. A firefighter who needs a ride to an accident scene cannot forcibly take another’s car. Geary – the blowing up of the ∏’s house did not stop the spread of conflagration. Ex. LIU c. Reasonable force may be used to detain the suspected person. such as by publicly disgracing a customer in the presence of others i. PROF. May be exercised by private citizens or public officials C. required that an innocent homeowner not be forced to bear the entire cost of a benefit conferred on the entire community. the court found. Actually or apparently necessary b. What is reasonable time depends on the circumstances. the use of forced intended or likely to cause serious bodily harm is never privileged. Permits only investigation and is not available if the store attempts to coerce a confession. A privilege of public or private necessity is not dependent upon whether the action achieves the desired goal a. was unreasonable. i. Time: period of time available for investigation is usually short –only for the time necessary for reasonable investigation. A reasonable mistake does not destroy the privilege b. Dillard v. but the privilege of public necessity precluded a suit in tort by the owner of the destroyed dwelling. MMI – a city was required to reimburse a homeowner whose house had been destroyed by a police SWAT team in the course of apprehending a suspect.TORTS I OUTLINE_ FALL 2009. Some statutes and cases abrogate the general rule and require compensation A. Fairness and justice. Surocco v. Ex. or acts in an unreasonable manner.e. A privilege of necessity exists if it is apparently necessary to invade the interests of the ∏ (often an innocent 3rd party) in order to prevent greater harm B. Wagner v. then the actor is liable for the excessive detention. Public Necessity Public Necessity WHO? Anyone WHEN? a.
except if the act is for the benefit of the ∏. ∆ takes the ∏’s scarf for the purpose of bandaging the wounds of an unrelated accident victim. Actually or apparently necessary b. there is no privilege to do so if the owner of the chattels expressly forbids such action c. Some statutes and cases abrogate the general rule and require compensation A. If the ∆ acts merely to protect personal interests or those of a few other people b. While one normally may ruse onto the land of another to rescue chattels from a burning building. a landowner may recover for the damages actually inflicted by another’s assertion of private necessity (1) Vincent v. – where damage was caused to a dock by a ship that was moored there during bad weather. Ploof v. One may act w/ reasonable force to overcome resistance to a privilege i. PROF. If the ∏ resists the assertion of the privilege. The actor is liable for actual losses If the ∏ resists the assertion of the privilege. in which case there is no liability i. the ∆ will be responsible for the value of the scarf. LIU Private Necessity Private Necessity: same as public necessity EXCEPT: a. One whose interests are being invaded by another acting w/ privilege cannot resist the assertion of that privilege i. There is still liability placed on the ∆.TORTS I OUTLINE_ FALL 2009. and no further compensation is required by the ∆ for harm reasonably inflicted thereafter. To avoid an imminent risk of greater harm to the community or many persons HOW? To use reasonable force a. The landowner was held liable for the consequent injuries and damages suffered by the occupants of the vessel. WHO? Anyone WHEN? a. EXCEPTION: a privilege of private necessity does not exist if the actor knows that the person whose interests would be protected is unwilling for the conduct to occur (1) Ex. Putnam – a landowner had cast adrift a boat that had attempted to tie up at his dock during a storm. the possessor may use reasonable force to recover the goods. Aside from the privilege to recapture chattels. the ∆ uses the ∏’s scarf to bandage the ∏’s own wounds. there will ordinarily be no liability ii. if in contrast. at least for a reasonable period of time. The action benefits only one or a few persons b. and no further compensation is required by the ∆ for harm reasonably inflicted thereafter (∏ waives the right to damages if the ∆ uses force and causes damages b/c of his necessity and the ∏ refusal to let him on the property) d. Lake Erie Transp. Intruder’s Superior Privilege: the intruder’s privilege to enter or remain in cases of necessity to save herself from death or grave bodily harm will be superior to the possessor’s privilege. If the goods came upon the land through wrongful conduct of the landowner. the privilege becomes complete. the privilege becomes absolute. Notes a. EVEN in the absence of fresh pursuit (1) Ex. §9 RECAPTURE OF GOODS ON THE LAND OF ANOTHER Overview A. e. In the absence of such resistance. at least 3 other rules govern the right of a possessor to retrieve goods deposited on the land of another i. A reasonable mistake does not destroy the privilege b. Ex. Knowing that Sylvester has taken his cage. Tweety Bird enters onto Sylvester’s property to get CLZ Tort 2010 21 .
Notes a. Involving prohibited (not merely regulated) conduct A. PROF. there is NO privilege to enter to retrieve the chattel (1) WILL be considered trespass §10 RECAPTURE OF LAND A. Unlawful conduct is the exception to the general rule that a person is not denied the right to sue in tort merely b/c that person was engaged in illegal conduct when the tort occurred. Raising the issue at trial a. Kallash – 15-yr-old boy who was injured while constructing a “pipe bomb” was precluded from recovering from a 9-yr-old boy who had supplied the gunpowder.TORTS I OUTLINE_ FALL 2009. Only peaceful means can be used to retake land B. video settlement “brochures” CLZ Tort 2010 22 . some states allow per diem arguments b. under limited circumstances. a ∏ is not barred from recovery merely b/c he or she was committing a tort or a crime at the time of the injury However.where court held that trespasser could sue landowner for injury sustained by a spring gun during a break-in. there is a privilege to allow the possessor on the land to retrieve the goods (1) The person asserting the privilege WILL be liable for damages iii. In a serious criminal act d. Damages not raised at trail are almost never considered on appeal b. ii.judge may add if award to small iii. some courts hold that recovery is barred if the ∏’s injury is: a. or the (P) to receive too little a malpractice action may be brought against the attorney c. Katko -. A direct result b. some courts consider awards in similar cases c. (1) Distinction must be drawn b/w lawful activities regulated by statute (fireworks) and activities which are entirely prohibited by law (pipe bombs) Damages i. If the goods came upon the land through force of nature or were wrongfully placed there by a 3rd party. Reserved for cases in which the violation of the law is particularly serious and the relationship b/w the injuries and the violation is direct ii. Of knowing participation c. if the award is against the weight of the evidence a judge may order remittitur remittitur-giving the (P) an option of accepting a reduced amount or being relegated to a new trial addittur. Barker v. When trial counsels inaction causes that (D) to pay to much . day in the life form 2. even though she was later convicted of being in violation of the leash law a the time the tort occurred) i. one must use the law §11 UNLAWFUL CONDUCT Prohibited Criminal Conduct—exception to the general rule that a person is not denied the right to sue in tort merely b/c that person was engaged in illegal conduct when the tort occurred Ordinarily. Otherwise. If the goods came upon the land of another w/ the consent or through the fault of the possessor. and Enright – a woman who failed to give her DL to a police officer was allowed to sue for false arrest. (See. w/o the landowner’s knowledge. Excessive Damages a. Sylvester may not sue Tweety Bird for trespass. use of video evidence is increasingly common 1. LIU the cage back. We can calculate by lump sum or by per diem (if allowed per diem better way) ii. Pain and Suffering a.
Collateral Sources Rule. rule has been extensively modified by statutue in some areas c. health. Expense |-----Cost v. Damages 4. to parents (in many states) c. Inflation i. but not essential ii. A (P) has a duty to mitigate damages throught reasonable post-accident conduct b. LIU iv.allows personal rep. Pain | 3. probability of the (P) being employed (as affected by age. inflation should be taken into account both in projectiong future lost earnings and in discounting CLZ Tort 2010 23 . or guidance a. in determining what is reasonable consider: 1. (after)Medical Monitoring. Probability of success ---C. Loss of Consortium Provides compensation for expenses and lost companionship and affection a. Risk ---2. to children (in a few states) d. to grandparent in loco parentis (some states) f. etc. an award of lost past earnings may be enhanced by prejudgement interest iv. to a reasonable degree of medical certainty. to a spouse (in all states) b. a (D)’s liability is not reduced because the plaintiff has received compensation from a source wholly independent of the tortfeasor b. May not apply if (P) obtained voluntary (not free) services from (D) B. to unmarried cohabitants (some states) A. an award for (P)s loss of ability to engage in enjoyable activities b. by interpretation of “actual” or “Pecuniary” damages d.first step is to check if applies in your JxD a. some states have approved awards of hedonic damages Medical monitoring damages Meyer v Fluor Plaintiff needs to show: a.restricted class of personas-bring a litigation themselves b/c thay are left behind wrongful death of (D) left them suffering. Hedonic Damages a. necessary in order to diagnose properly the warning sign of disease. b. PROF. Avoidable Consequences Rule a. the claim is prosecuted by the estate. v. Wrongful Death Statutes i. allow a claim to survive the death of either party ii. a history of earnings is useful. if the (P) dies. (before-explosure) significantly increased risk of contracting a particular disease relative to what would be the case in the absences of exposure b. society. to bring claim against tortfeasor on behalf of the deceased i. Wrongful death: companionship and society i.) is taken into account iii. expressly or b. Lost Earnings i.TORTS I OUTLINE_ FALL 2009. Effort | 5. most states now allow recovery of lost companionship. Survival and Wrongful Death Statutes-liability ends with the death of either party in a lawsuit a. an awred of lost future earnings is reduced to present value e. Survival Statutes:. advice. permit a designated class of person to recover for losses sustained as a result of a wrongful death of another . to siblings (in a few states) e. c.
D. the harm was the result of intentional malice. taxation of the earnings on the investment of a lump sume award can be avoided by a structured settlement iii. the harm was physical or economical ii. LIU those losses to present value. in wrongful death cases in which damages are measured by the amount the decendents waould have contributed to the survivors. fed cts hold that juries should be instructed that damages for loss of future earnings are not subject to taxation. the tortuous conduct evinced an indifference to or a reckless disregard of the health or safety of others. an award of compensatory damages in a personal injury case is not taxed ii. repeated actions or an isolated case Plaintiff i. the degree of reprehensibility of D’s conduct ii. the difference between the punitive damages awarded by the jury and the civil penaltites authorized or imposed in comparable cases Reprehensibility i.TORTS I OUTLINE_ FALL 2009. the target of the conduct had financial vulnerability iv. Taxation of Damages i. or else left out of both calculation altogether. the harm cause was physical as opposed to economic ii. courts usually admit evidence of the decendeant’s tax laialbilty on future earnings. PROF. or just an accident ii. iii. financial vulnerability CHAPTER 5. *some state differ on last point. the disparity between the harm suffered by the (P) and punitive damages awarded iii. trickery. the conduct involved repeated actions or was an isolated incident v. or deceit or mere accidents the existence of one factor may not sufficient and the absences of all of them renders any award suspect. Gore three Guidepost (BMW v Gore) i. Compensatory Damages . iii. iv. NEGLIGENCE §1 NEGLIGENCE DEFINED CLZ Tort 2010 24 . Reprehensibilty – Factors to considered.new income so it is taxed State Farm v Campbell a.not Taxed Punitive damages. intentional malice or deceit. indifference to or reckless disregard of the heatlht or safety of others. Defendant i.
Duty b. Causation d. Rule: Risk reasonably to be perceived defines the duty to be obeyed a. Whether the ∆’s conduct has breached the duty that was owed to the foreseeable ∏ a. It fell to the tracks and exploded. In the process. Palsgraf’ general rule on duty: The risk reasonably to be perceived defines the duty to be obeyed. (1) B/c there was no reason for the guards to foresee the possibility of injury to ∏ or to others similarly situated. the central concern is not w/ duty. Duty deals with the issues of unreasonable B. Question was whether a woman who was standing on the other end of the platform could recover from the RR for the injuries she sustained when the shock of the explosion caused a scale to fall. Found that there was no liability b/c there was nothing in the situation to suggest to the most cautious mind that the parcel wrapped in newspaper would spread wreckage through the station. PROF. Damages i. Causation d. Long Island RR – RR guards had attempted to boost a passenger safely onto a slowly moving train that he was running to catch. Duty b. Palsgraf v. Breach c. Although this is important. whether the ∆ has acted unreasonably) c. There is nothing in the situation to suggest to the most cautious mind that there is harm C. LIU Prosser’s 4 Elements of Negligence a. Negligence – conduct which poses an unreasonable risk of harm to others B.. Even if there is a duty to the ∏. Nominal damages CANNOT be recovered to vindicate a technical right of the ∏ (nominal. but w/ whether the ∆’s conduct has breached the duty that was owed to the foreseeable ∏ (i. Breach c.e. (2) The case might have turned out differently if the guards could have readily seen that the package contained fireworks b. Elements a. §3 NEGLIGENCE BALANCING TEST Negligence Balancing Test-FYI it is almost impossible to appeal a suit of neg. b/c neg a question of fact and appeal cts look at matters of law CLZ Tort 2010 25 . which bear on the fairness of imposing liability. (risks imports relation! It’s the foreseeability of risk to a person of the ∏’s class. other questions. i. there was no duty to her. must be considered before liability will attach. some loss has to occur (negligence requires you actually suffer a detriment) §2 CONCEPT OF DUTY Palsgraf Duty Rule – the risk reasonably to be perceived defines the duty to be obeyed A. Negligence – conduct which poses an unreasonable risk of harm to others a. Damage (actual loss must have occurred) A.awarding $ for the sake of the moral of the story). and therefore no liability.TORTS I OUTLINE_ FALL 2009. The case is important b/c it articulates the concept of duty in terms that are widely embraced: The duty runs to only those who are in the foreseeable ambit of danger i. a package was dislodged from the man’s arms.
.g. Risk CLZ Tort 2010 26 . B&W RR v.. for negligence to lie. Are other forms of treatment available at a reasonable price?) c. Proof is sufficient to show that a person of ordinary prudence should have known of the condition aforesaid and should reasonably have anticipated. Will there be partial damage or complete destruction. Lacopo . Will the vaccine be fatal to one in a thousand or one in a million?) B<PL vs. harm must be “not merely possible. recreational activities are perhaps less important) ii.g. As long as there’s an alternative. Since serious harm was threatened by the explosion of the gasoline in close proximity to a person. Social value of the interest imperiled (e. but whether the risk was of sufficient weight and moment that a reasonable person would have avoided it a. – a barge belonging to the ∏ had broken away from its moorings b/c of the negligence of the ∆’s employees in moving the ropes. Carroll Towing Co. held that while RR turntables serve an important public interest. Number of person who are likely to be affected (e.TORTS I OUTLINE_ FALL 2009.. Palsgraf suggests that the test is not whether damage was more likely than not to occur. Court focused on the utility of the ∆’s conduct and on the availability of alternatives. Court ruled for ∏ on the basis that the probability and gravity of the threatened danger outweighed the burden that would be imposed by requiring the presence of a bargee during normal working hours.g. Gulf Refining Co v. Chicago. Rule: a person cannot be expected to guard against harm from events which are so unlikely to occur that the risk. which injured the ∏. US v.g. actions to prevent or cure a disease are important. i. is the vaccine likely to be effective? Will it be effective in all cases or in only one in ten?) iii. Social value of the interest the ∆ seeks to advance (e. Risk – whether there is a variable alternative is a question of both technical feasibility and whether the alternative could entail high economic and noneconomic costs i. Utility versus Risk – negligence also takes into account the utility of the ∆’s conduct and the availability of alternatives a. and therefore the ∆’s conduct was negligent. would commonly be disregarded B. Risk Formula A. Williams – a spark caused by a defective cap on a gasoline drum started a fire. However. i. Availability of alternatives (e. as a likelihood of weight and moment. LIU Hand Formula: conduct is negligent if the Burden of prevention is outweighed by the gravity of the Loss times the Probability of the harm B<PL (B)urden of prevention < (P)robability of the harm * (L)oss A. Likelihood that the conduct will advance the desired objective (e. PROF. the apparent likelihood of its occurrence may be correspondingly less.. that a sudden fire or explosion would be caused by the stated condition of unrepair ii. i. gravity and probability of harm furnish only part of the negligence equation c.∏ whose property abutted a CC. although cognizable. Court held that although the ∆ golfer had played the course before and was aware of the location of the ∏’s property. Extent of the harm that is threatened (e.g. the probability of its happening did not have to be great in order for the ∆’s failure to take corrective action to give rise to liability. the ∆ is liable for not choosing the alternative b. was injured by a stray golf ball. Is there a threat to the life and health of persons or only to property interests?) ii. i.g. and although golf balls had landed there on previous occasions. Nussbaum v. Krayenbuhl – a 4-yr-old child was injured while playing on an unlocked RR turntable. Utility of a given course of conduct is a function of: i. the use of a lock would have interfered slightly w/ the pursuit of that goal. the possibility of harm to the ∏ was too small to give rise to liability.. Utility v. Court found for the ∏ under the exception test: as the gravity of the potential harm increases. but probable” iii. Indicates that Nussbaum opinion goes too far when it states that.. temporary impairment or permanent injury?) iii. Lack of due care is not demonstrated when the undisputed physical evidence proves that it could not have reasonably anticipated that the harm complained of would result from the natural and probable consequences of the act claimed to be negligent b. Learned hand balancing test (B<PL) Utility vs.
such as in the “highly unusual case in which one believes that CLZ Tort 2010 27 . a. LIU A. B. iv. The finder of fact Judicial decision Statute Judicial decision in reference to the statute B. prudent person would have acted under the same or similar circumstances. Vaughan v. Considerations the Jury may take into account i. is not a defense to negligence liability that the ∆ acted “bona fide to the best of his judgment. Good intentions are not enough – it is not enough that the ∆ did the best he knew how. Clark – evidence showed that the emergency leading to a rear-end collision was caused by the actions of an unknown driver several cars ahead. ii. Consequently. Establishing Reasonable Person Standard – 4 Ways: i. PROF.” Good faith is not enough to preclude a finding of negligence liability. if not. inadvertent error. Emergency – reasonable prudent person would have done under the same or similar circumstances (1) Exception: unless the actor created the emergency. Whether a particular course of conduct is negligent may depend upon whether alternatives are available. The question was whether the ∆ had taken the precautions that would have been observed by a reasonable person. The opinion of the court makes clear that the reasonable-person test is an objective standard. Both formulas work best in instances where someone has actually made a decision that would affect safety. the ∆ was entitled to have the jury instructed on the subject of emergency. but simply asking whether the ∆ acted as a reasonable. (i) Even if the ∆ is entitled to an emergency instruction. Are the following factors relevant “circumstances?” Do they change the standard of care? a.TORTS I OUTLINE_ FALL 2009. C. ii. Risk formula doesn’t work well in cases of momentary. the jury may find that the ∆ acted unreasonably. Circumstances for the Fact Finder to Consider A. The reasonable person standard is intended to ensure some degree of predictability in the conduct of human affairs. whether the decision maker was negligent in making that decision. It was not sufficient that the ∆ in Vaughan had tried to do his best. iii. B/c it could not be said as a matter of law that the ∆ was traveling too close or too fast. Menlove – the improper location of a hay rick led to a fire which destroyed the ∏’s cottages. The law has frequently elected to articulate the same inquiry of determining unreasonableness assessed using B<PL. iii. §4 REASONABLE PERSON STANDARD Overview A. Utility v. Physical Disabilities – the standard for negligence is what a reasonable person w/ that physical disability would have done (1) In General: (a) The conduct of an actor w/ physical disability is negligent only if it does not conform to that of a reasonably careful person w/ the same disability (2) Illness (a) Illness constitutes negligence only if the sudden incapacitation or loss of consciousness was reasonably foreseeable to the actor. Intoxication – no allowance is made in the standard of care for voluntary intoxicated persons (1) Where intoxication is involuntary. in which case no allowance is made (2) Does NOT change the standard of care but is a relevant factor (a) Young v. The court can then assess whether the decision was reasonable and.
Woman believed that God was in control of her car and therefore accelerated it. . the standard of care will be definied w/ reference to that group. namely whether their conduct measures up to the level of care that would be exercised under similar circumstances by a child of like age. merely a factor to be considered (1) Williams v. Bright – the issue was whether the ∏ had unreasonably failed to mitigate damages due to her religious beliefs as a Jehovah’s Witness. Mental deficiencies -. unless the actor is a child ii. Age – children are to be judged by a special standard of care: against other children of like age.” the standard of conduct to which the actor must conform is that of a reasonable man under a like disability. driving) (a) Gross v. LIU iv. or experience must exercise those abilities (1) If the actor is a member of a profession. for “it is unjust to hold a man responsible for his conduct which he is incapable of avoiding. Allen . training. a patient consenting to treatment on that basis may be entitled only to less care than would normally have been CLZ Tort 2010 28 . intelligence. he is drinking tea is pied w/ liquor. unexpected. intelligence. (1) EXCEPTIONS: Sudden. Reluctance on the part of the courts to enter upon the intractable inquiry of defining and proving levels of mental deficiency or insanity vii. Court stated that a jury instruction should not be phrased in terms of what “a reasonable prudent person” would do.∏ was injured when she was struck by a 17-yr-old. American Family Ins. Training. first-time skier. no allowance is made in the adult standard of care for any mental deficiency of a relatively minor nature a. sudden insanity. and experience (1) EXCEPTION: when children perform an adult activity for which adult skills and experiences are required (hunting. which allegedly precluded her from having a knee operation b/c the procedure would require blood transfusion. training. thinking she could fly over an on-coming truck “like Batman. PROF.” (b) Inability to control one’s actions. temporary insanity (a) Bruenig v. heroin addicts not resisting the temptation to get high (ii) Actor’s mental deficiency is always relevant to the issue of contributory negligence Superior Knowledge. and the actor will be found negligent for failing to perform w/ the degree of knowledge. sometimes 17 vi..” She was wrong. Religious Beliefs – does not change standard of care. and injuries to the ∏ resulted. if the incapability was unknown to him prior to the accident. even if the deficiency in ability to control results from a condition of long standing (i) E. Severe mental problems (insanity) i. and so becomes disabled. but did not change the standard of care. (R3T) actor’s mental or emotional disability is not considered in determining whether conduct is negligent. v. and skill possessed by an ordinary member of the profession in good standing (2) This is to foster predictability in that profession (3) EXCEPTION: If a professional claims to have less skill than ordinary. or Skill: Professional Malpractice – A person w/ superior skill.g. Court found that a different rule should apply in cases of unanticipated. nor in terms what “a reasonable Jehovah’s Witness” would do.Generally. (2) Applies mostly to children 5-14 yrs of age. Court held that children are normally to be judged by a special standard. and experience.TORTS I OUTLINE_ FALL 2009. The ∏’s beliefs were held to be a relevant factor. The correct instruction should be “whether the ∏ acted as a reasonably prudent person (taking into consideration) the ∏’s testimony that she is a believer in the Jehovah’s Witness faith.
The information is. medical practitioners from around the country can testify (4) Lawyers are bound by the locality-rule that they need to familiarize themselves w/ local practice as a duty to their profession (a) Russo v. PROF. The relevant frame of reference was state-wide in view of the fact that attys are licensed by the state and are subject to state rules of practice. Possesses the ordinary degree of learning. Because the lawyers had acted reasonably in crafting their appeal strategy as the law then existed. Due Process of the 14th Amendment prohibits the imposition of grossly excessive or arbitrary punishments on a tortfeasor b. and b/c substantive law often differs from one state to the next. Brown . No guarantee of success (1) ∏ must prove that lack of care resulted in damages (2) ∏ must prove that not for the negligence. (3) Intentional torts mor likey to get punitive damages. ∏ would have won their case (a) Biomet v. in Negligence more likely then not that will not be awareded Constitutional Challenge of Excessive Punitive Damages (Biomet case) a. Finnegan Henderson LLP – the ∆ lawyer chose not to appeal an adverse $20M punitive damages judgment against their client at the time they challenged the related compensatory damages award. known to the patient b. but also of the severity of the penalty that a State may impose (3) Expert testimony is needed. The choice was reasonable at the time it was made b/c there was no basis to constitutionally challenge the punitive award until the award of compensatory damages was reduced and reversed.TORTS I OUTLINE_ FALL 2009. based on a failure to advise his client of the desirability of obtaining a covenant not to compete from the party who was selling the client an interest in a paving business. There is an emergency (1) Boyce v. there is: a. not just what the expert would have done (a) For legal malpractice. A person is entitled to receive fair notice not onl of the conduct that will subject him to punishment. ix. and ability b. they were not liable for malpractice. Medical Malpractice Failure to obtain informed consent is professional negligence even if treatment is skillfully rendered A physician must disclose all material risks and alternatives. Court held that malpractice claim was not precluded by the fact that only out-of-town experts had testified that such advice was required. Griffen – atty charged w/ malpractice. Legal Malpractice An atty implicitly represents that he or she: a. but the expert needs to testify if it was negligent for the ∆ to do what she did. attorneys from around the state can testify as to what is reasonable (b) For medical malpractice. Will exercise her best judgment c. No liability for a mere error of judgment on which reasonable lawyers may differ b. skill. Will be diligent and careful in using professional skill and knowledge Generally. except if: a. Disclosure would be detrimental to the patient’s best interests c.∏ alleged that it was negligent for the ∆ physician to fail to take an x-ray in CLZ Tort 2010 29 . or should be. LIU exercised viii.
PROF. in treating the ∏. her surgeon had neglected to disclose the risks of the operation and the available alternatives.∆. If negligence is so grossly apparent that a layperson would have no difficulty recognizing it. or should be. JUDGE MADE STANDARDS Judge-Made Standards of Care Judge-made Standards: judicial definition of reasonable conduct A. the court held that it was negligent as a matter of law not to give the test. known to the patient b. ∏’s expert testified that he personally would have taken an x-ray. Previously. A judgment in the ∆’s favor was affirmed. Carey . The court adopted a subjective test which asks simply whether there is credible evidence to support a finding that this particular patient would not have consented. There is an emergency (1) No action will lie if the fact finder believes the patient would have consented to the procedure anyway (would a reasonable person have consented to the treatment even after finding out all the risks?) (a) Test applied to determine negligence based on lack of informed consent: (i) Subjective – whether there is credible evidence to support a finding that this particular patient would not have consented 1. Disclosure would be detrimental to the patient’s best interests c. except if: a. CLZ Tort 2010 30 . treating her ankle.TORTS I OUTLINE_ FALL 2009. Bradford – patient had experienced problems subsequent to a hysterectomy. (ii) Objective – whether a reasonable person would have consented to the treatment if the risks and alternatives had been disclosed §5. had followed the customary practice of not testing persons under the age of 40 for glaucoma. into which a screw had been inserted. expert testimony is not required. Mindful of the “grave and devastating” nature of the potential harm and of the slight burden that administering the test would impose. an ophthalmologist. Medical Malpractice: Informed Consent Failure to obtain informed consent is professional negligence even if treatment is skillfully rendered A physician must disclose all material risks and alternatives. Helling v. LIU x. although the test is simple. Scott v. The information is. but did not say that it was negligent for the ∆ not to do so.
Three views: i. it may inquire no further into the issue of negligence (a) Martin v. Class of persons intended to be protected b. unprescribed drugs taken by a person (class of person intended to protect). Statutes Intended by the Legislature to Set the Standard of Care a. Did the statute set the standard of care? b.” The statutory provision was intended to prevent physical injuries to patrons such as the ∏. Gipson v. will NOT preclude a finding of negligence per se (3) JURY INSTRUCTIONS: if jury finds that the facts establish an unexcused violation of statute. The only relevant questions are the law’s constitutionality and its applicability to the facts of the case at hand. disorderly or boisterous conduct. ∏ argued that the bar’s negligence could be established based on its violations of both a statute and a regulation. The statute defines the governing standard of conduct for a negligence action i. Type of harm intended to be prevented (Consider it a proximate cause issue) b. ii. the court refused to hold that a violation of that law could be used to prove negligence.∏ was injured during a barroom brawl. Statutes Adopted by Courts to Set the Standard of Care a. Herzog . B. LIU Negligence Based on Violation of Statute §6. Always consider: a. Court held that the regulation. Under the negligence per se line of reasoning. Prima facie negligence – a presumption of negligence that may be rebutted by a showing of an adequate excuse (1) The violation of a standard setting statute is a presumption of negligence that may be rebutted by a showing of an adequate excuse CLZ Tort 2010 31 . which is not an excuse. Statute prohibited the serving of liquor to a person who was already “visibly intoxicated. Mar-Cam Corp. a court may nevertheless adopt its requirements as defining the standard of conduct of a reasonable person. noisy. PROF. Is recovery barred by available defenses? A. Kasey – a party-goer who violated a statute prohibiting distribution of prescription drugs to persons lacking a valid prescription could be liable for the death of another party guest that resulted from the decedent’s ingestion of the drugs along w/ excessive alcohol. . The statute was intended to protect against the harm of death by illegal. as required by statute. c. Is a statute is not expressly or implicitly intended by the legislature to set the standard of care. the fight would not have occurred. Unexcused violations of statute a. Stachniewicz v.TORTS I OUTLINE_ FALL 2009.” and the regulation forbade a liquor licensee from tolerating “loud.∏’s decedent had failed to equip his buggy w/ a light for night driving. but not the statute set an appropriate standard of care. it’s still up to the judge’s discretion if statute sets the standard of care. Factual causation is established by applying a “but for” test and it could not be said w/ any confidence that but for the drinks served following the onset of visible intoxication. Even if both these questions are satisfied. C. NEGLIGENCE BASED ON VIOLATION OF STATUTE Negligence Based on Violation of Statute: Should ask… a. i. What is the procedural effect of an unexcused violation? d. the high court held that the unexcused violation was negligence in itself and the jury was not free to relax the statutory standard of conduct or to disregard the ∏’s breach of that law. and the trial court had instructed the jury that this violation of the law was merely some evidence of negligence. Was the violation causally related to the ∏’s damages? a. Negligence per se – conduct negligent “in itself” or “as a matter of law” (1) The unexcused violation was negligent in itself and that statutory standard can’t be relaxed (2) Evidence of due care. Was there an excuse for the violation? c.
E. ∏s argued ∆ should have taken greater precautions than were required in the ordinance.” in the sense there was no special reason to anticipate harm. which the jury is free to accept or reject in determining whether the ∆ acted reasonably -MidtermExcused violations of statute b. snow falling faster than the owner could shovel walkway) iii. nor is it an excuse if the person is unaware or ignorant of the statutory requirement. it must conclude that the ∆’s conduct fell below the required standard of care and was negligent Some evidence of negligence – an unexcused violation does not supplant the jury inquiry into the reasonableness of the ∆’s conduct (1) JURY INSTRUCTIONS: even if it finds there has been a violation. Garavalia – young girl bitten by neighbor’s dog. Court held that any contributory fault was irrelevant b/c statute was intended to impose absolute liability on the owner of the animal. though the rubric of negligence is still employed i. tenants.. jury ruled in her favor b/c there was evidence of an excuse for the violation. Emergency c. Incapacity to comply (e. LIU iii.∏ was struck by ∆’s vehicle when she failed to comply w/ a law requiring pedestrians use sidewalks.g. They seem as if they impose a form of strict liability. or patrons of businesses open to the public (4) Prohibiting the sale to minors of firearms and other dangerous articles b. Seim v.. Royal Motel . was struck by a car after failing to yield to traffic. if so contributory negligence could not be based on the statutory violation. however. nor is it an excuse if there is a custom to depart from the statutory requirement D. if road bends sharply to the left. PROF. Class of possible laws: (1) Setting a minimum age for employment in certain hazardous occupations (2) Prohibiting the sale of adulterated food (3) Specifying requirements for the safety of employees. ii. O’Neil . it may be safer for pedestrians to walk along the right side.. compliance w/ the law precluded any claim from negligence. Anderson . which was covered w/ snow and ice. Court held that not all children are capable of understanding what care should be exercised in relation to traffic. A violation is excused (not negligent) when: i.TORTS I OUTLINE_ FALL 2009. would have been more dangerous than walking on the roadway. The actor’s violation of the statute is due to the confusing way in which the requirements of the statute are presented to the public v.g. It was argued that she was contributory negligent. Violation of a statute is not excused by the fact that the person sincerely or reasonably believes that the requirement set by the statute is excessive or unwise. Contributory negligence is a defense to a negligence per se claim ii. driving w/in the speed limit but nonetheless unreasonably fast in the rain) a.. i.g. Compliance w/ statute – compliance doesn’t necessarily establish that the ∆ acted reasonably (e.g. in violation of the statute. (2) Due care evidence may be sufficient to rebut the presumption of negligence (3) JURY INSTRUCTIONS: if the facts show that there was a violation of the statute but no excuse. Contributory negligence is a defense to a statutory strict liability claim CLZ Tort 2010 32 . Case might have turned out differently had ∏ brought forth proof of prior attacks. Actor exercises reasonable care in attempting to comply w/ the statute (e. Montgomery v. vi. The court remanded the case to find whether the ∏ lacked such capacity. The actor neither knows nor should know of the factual circumstances that render the statute applicable (e. a child can’t read “walk” at an intersection) (1) Renard v. tail light burning out while the ∆ was driving) iv.g.. Court held the situation was “normal. Statutes Allowing No Excuse or Defense a. almost 8 yrs old.∏s were assaulted and robbed by intruder who entered their unit before the had locked their hotel room door. The actor’s compliance w/ the statute would involve a greater risk of physical harm to that person or to others than noncompliance (e. it is only some evidence.∏. than on the left side as required by statute) (1) Zeni v. which showed that using the sidewalk.
and gross ii. Gradiations are not useful – it is necessary to check the case law of the jurisdiction to ascertain their precise meaning iii. Special standards of care a.TORTS I OUTLINE_ FALL 2009. utilities. innkeepers. PROF. common carriers. Contributory negligence is NOT a defense to a STATUTORY ABSOLUTE LIABILITY claim §7. LIU iii. some statute CLZ Tort 2010 33 . EXCEPTIONS: bailments. SPECIAL STANDARDS OF CARE A. Degrees of Negligence i. ordinary. Slight.
custom is not controlling. but of one or more other facts from which the existence or nonexistence of the fact in issue may reasonably be inferred (i. PROVING NEGLIGENCE the burden of proving negligence is on the party alleging it. The case might have been decided differently had ∏ proved that ∆ knew of similar thefts in the neighborhood.TORTS I OUTLINE_ FALL 2009. Park Price Co. Circumstantial evidence – evidence not of a disputed fact. ∏ must establish that ∆ had actual or constructive notice of the danger iii. Departure from conformance inference of unreasonableness (1) Low v.e. The duty of care is a relative concept that changes. §2. and the changed appliances of navigation Notes i. skid marks) to prove the ∆’s negligence and other issues in tort Two chief categories of evidence: i. CIRCUMSTANTIAL EVIDENCE Evidence from which the fact in question may be inferred (fingerprints. and merely establishing that an accident happened does not prove it.. except in extreme cases where a custom is negligent as a matter of law i. where it was subsequently robbed. Direct evidence – evidence that directly supports the finding of a fact in issue (i. §1 EVIDENCE OF CUSTOM A. Admissible on the issue of reasonable conduct. ∆ left the vehicle in an unfenced area. Evidence of Notice i. If the defendant would have been aware of the condition by being reasonably attentive. experience. a judgment for the ∆ was held. .e. the defendant has constructive notice a. Constructive Notice *When there is no actual notice to a defendant of a hazardous condition. eyewitness testimony) ii. Liability for negligence depends on foreseeability. LIU CHAPTER 6.∏ left vehicle in ∆’s care for a repair job. skid marks to show care was speeding at the time of crash) *remember direct evidence does not necessarly mean better. Relevance of Custom. just a factor B. The standard of care changes with advancing knowledge. ii. there may nevertheless be constructive notice. PROF. Custom does NOT determine the standard of care. (2) The TJ Hooper – two barges capsized in a storm after the tugboats pulling the barges failed to receive a report of bad weather. Conformance w/ custom inference of reasonableness ii.factor to be considered under like circumstance what would community do. not notice (banana case).sometimes custom under reasonable circumstances become quite unreasonable in light of a single fact in particular case.. If harm was not foreseeable. B/c the ∏ failed to introduce any evidence to overcome the inference of reasonableness arising from observance of the custom. notice is required only if the dangerous condition is out of the ordinary ii. Court found that there was no established custom w/ respect to having radios. Constructive notice is established by evidence that the danger existed so long that it should have been discovered through exercise of reasonable care (there is no fixed time a condition must exist before it should have been discovered and remedied) CLZ Tort 2010 34 .
An owners chosen mode of operation makes it reasonable foresseable that a dangerous condition will occur. knows or by exercise of reasonable care would discover the condition and should realize that it involves an unreasonable risk of harm to such invitees b. that if a ∏ proves that an injury occurred as a result of a premises hazard or transitory substance in a selfservice store. there is a rebuttable presumption of negligence. Knows or by the exercise or reasonable care would discover the condition. Traditional Premises Liability Approach: a possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if. Burden then shifts to the defendants “to show greater weight of evidence that it exercised reasonable care in the maintance of the premises under the circumstances. Supermarkets – court recognized some states endorse a radical view. LIU b. Mode of operation * focuses on the nature of the defendants business that gives rise to a substancial risk of injury to customers from slip and fall accidents. In Goddard. The burden then shifts to ∆ to prove that it exercised care in the maintenance of premises. were sufficient to support an inference of duration. should expert that they will not discover or realize the danger or will fail to protect themselves against it c. since it was unlikely that a peel which had reached that state of disintegration had only recently been discarded Types of Premise liability 1. Roche Bros. Fails to exercise reasonable care to protect them against the danger ∆ is not liable unless he has actual knowledge or constructive notice of the dangerous condition that CLZ Tort 2010 35 . the facts in Anjou. In contrast. and should realize that it involves an unreasonable risk of harm to such invitees. Burden Shifting Approach.TORTS I OUTLINE_ FALL 2009. If the evidence establishes a specific negligent mode of operation such that the premises owner could reasonably anticipate that dangerous conditions would arise as a result of its mode of operation. and b. Goddard v. which showed the banana peel was black. Sheehan v.a possessor of land is subject to liability physical harm caused to his invitees by a condition on the land if but on only if he a. Restatement and Traditional premise liability approach. Boston Elevated Railway – cases in which ∏s slipped on banana peels. (P) proves that an injury occurred resulting from a premise hazard or a transitory foreign substance in a self service store a rebuttable presumption of negligence arises. there was no indication of the condition of the banana peel and thus no basis for such a finding ii. The courts considered whether there was enough circumstantial evidence to support a finding that the peel had been in position long enough for the exercise of reasonable care to have required its discovery and removal. Issues of causation and notice are to be treated not as elements of the customer’s case. PROF. Premises Liability Approach iii. dry. fails to exercise reasonable care to protect them against the danger 2. he a. Should expect that they will not discover or realize the danger or will fail to protect themselves against it c. i. Boston & Anjou v. but only if. then whether the owner had actual or constructive knowledge of the specific transitory foreign substance is not an issue 3. and gritty. but as affirmative defenses of the business proprietor iv. A store owner could be held liable for injuries to invitees if the (P) proves that owner failed to take all reasonable precautions necessary to protect invitees from these forseable dangers. i.
It is not necessary that the ∆ have superior knowledge i. C. the instrumentality causing the injury is shown to have been under the management and control of defendent Elements: a. Rebuttal Evidence a. Superior Knowledge a. character of the accident is such that it would not ordinarily occur in the Absence of negligence. ∏’s injury was not due to his own action B. Control is not a rigid requirement (1) Mobil Chemical v. was in the ∆’s exclusive possession. – a gas main exploded. Minnesota Gas Co. ∆ is not required to have control of it when the accident happened. No direct evidence b. Court held res ipsa applied b/c it was likely the negligence took place while the machine. LIU Modern Premises Liability Approach: Recurrent Risk Approach If an owner is aware of the existence of a recurrent condition that poses a potential danger to invitees may not ignore that knowledge and fail reasonably to respond to the foreseeable danger of the likelihood of a recurrence of the condition.TORTS I OUTLINE_ FALL 2009. the ∏ was required to show the instrumentality was under the control of the ∆. The court based its decision to allow the use of the doctrine on the fact that the company has “superior knowledge of the gas distribution system” and “access and opportunity to identify persons acting in the vicinity of the gas mains” D. Bell – workers were injured when acid spewed from a rupture in a chemical processing system. Res Ipsa Loquitur – “The thing speaks for itself”. however b. Does not require showing that the ∆ was in exclusive control of the dangerous instrumentality i. If ∏ is aware of how the accident occurred. Mahowald v. Due-care evidence does NOT preclude reliance on res ipsa b/c the accident still remains unexplained b. ii. Exclusive Control a. there is no reason the ∏ should have the advantage of special CLZ Tort 2010 36 . which had recently been installed. ∆ has exclusive control of the instrumentality d. PROF. Type of injury does not normally occur in the absence of negligence c. This evidence can be influential. Applying res ipsa.“it this or regular direct negligence cant bring both up in suit” Res Ipsa Loquitor: one kind of circumstantial evidence from which breach of duty and causation may be inferred Applicable when two factors present i. §3. All that is required is control at the time the negligence probably occurred ii. injuring persons and property. RES IPSA LOQUITUR A.
safety training. Presumption that shifts the burden of going forward w/ evidence (the burden of production) i. each of which had a responsibility. LIU E. Spangard – during an appendectomy. the ∏ suffered an injury to his shoulder. a res ipsa ∏ is only required to show that the ∆’s inferred negligence was. Joint control is the key test for determining whether res ipsa will apply against multiple ∆s. ∆ must prove by a preponderance of the evidence that the injury was not caused by the ∆’s negligence ii. ∆ produced testimony that if had exercised due care regarding maintenance. a cause of the injury. The court held that the due-care evidence did not preclude reliance on the res ipsa loquitor doctrine b/c the crash still remained wholly unexplained. personnel qualifications. and weather conditions. i. The court recognized that it would be manifestly unreasonable to require a person who was unconscious at the time of injury to identify the wrongdoer.TORTS I OUTLINE_ FALL 2009. the court would be faced w/ the unattractive choice of allowing ∆s to escape liability. Unless the ∏ could rely on res ipsa to establish negligence. Court determined that the ∏ could rely on the doctrine to raise a presumption of negligence as to each ∆. reliance on the doctrine has generally not been allowed. more probably than not. Presumption that shifts the burden of persuasion i. Jury found all ∆s liable. F. Res Ipsa and Plantiffs conduct. but any ∆ could meet that presumption by giving a satisfactory explanation of his conduct. If the ∆’s stand in relationship w/ one another as professional colleagues. PROF. Rare Disposing of unfavorable evidence CLZ Tort 2010 37 . There was no dispute that the injury normally would not have occurred in the absence of negligence and that the ∏ was not a responsible cause. Res ipsa requires a directed verdict for the ∏ if the ∆ fails to offer any evidence to rebut the presumption of negligence c. The case would be different if the ∆’s rebuttal evidence shows that in addition to due-care evidence. inference or presumption instead of having to prove that ∆’s conduct was unreasonable i. In cases where they are strangers. G. Ruling in Ybarra was based in part on the fact that the ∆s stood in a special relationship to one another as a professional team.∏’s husband was killed when the ∆’s flight disappeared over the Pacific Ocean. It would be unreasonable to require a person who was unconscious at the time of the injury to identify the wrongdoer b. Cox v. even though ∏’s negligent acts or omissions may also have contributed to the injury Multiple Defendants a. Ybarra v. ii. Procedural Effect Procedural Effect of Res Ipsa Loquitur 3 views: a. Northwest Airlines . a. Permissible inference (majority) – jury is free to accept or reject b. Under comparative negligence. Reliance on the doctrine is usually NOT allowed when the ∆s are strangers to each other d. Negligence case was brought against the attending professionals. they ALL have responsibility for ∏’s injuries c. an outside agency was responsible for the accident.
Dismissal of action ii. Jury is instructed to assume that the spoliated evidence was unfavorable to spoliating party ii. Adverse presumption – assumes that the evidence would have been unfavorable to spoliating party i. Sanctions: (1) Important factors for the trial court to weigh include the degree of the spoliator’s culpability and the prejudice the non-spoliator suffers (2) Dismissal of action or Default Judgment– most severe sanction (3) Excluding evidence or testimony – generally used when spoliating party is trying to admit evidence in their favor (4) Presumption instruction to jurya. The spoliating party bears the burden to disprove the presumed fact or issue b.no burden shifts) A. regulatory. Rebuttable presumption (shifts burden to spoliation party) iv.TORTS I OUTLINE_ FALL 2009. Once the court finds that evidence has been improperly spoliated and that the non-spoliating party was prejudiced by the act. LIU Spoliation of Evidence Minority: spoliation of evidence can be an independent tort action (rarely) Majority: spoliation should be addressed through sanctions What sanction is appropriate? i. ∏’ ability to prevail at trial may be adversely affected when the ∆ or a 3rd party loses. Exclusion of evidence iii. A party is entitled to a remedy only when evidence spoliation hinders its ability to present its case or defense b. Upon a spoliation complaint. trial judges have broad discretion to deal w/ spoliation by imposing sanctions or by submitting instruction to the jury. Remedy a. failure to exercise care or strict liability the plaintiff must prove causation. or alters relevant evidence. the court should decide what sanction to apply i. or ethical duty to preserve evidence b. Simply another favor used by the fact finder in weighing the evidence CHAPTER 7. a. Causation: A Two-Step Inquiry Factual Causation: a factual inquiry into whether the ∆’s conduct precipitated the injury Proximate Causation: a policy inquiry into whether it is fair to impose liability on a ∆ whose conduct was a factual cause CLZ Tort 2010 38 . Duty to preserve a. PROF. Trevio v. the threshold question should be whether the alleged spoliator was under any obligation to preserve evidence i. A party may have a statutory. B. Ortega – case that arose from the destruction of medical records. A spoliator can defend an assertion of negligent or intentional destruction by providing other explanations for the destruction C. The course of remedy should depend upon the culpability of the spoliator and the prejudice to the ∏. destroys. Rebuttable presumption – used when the non-spoliating party cannot prove its prima facie case w/o the evidence i.burden of proof in nearly every tort action whether intentional wrongdoing. FACTUAL CAUSATION Overview. Presumption of unfavorability (adverse presumption.
Wilkins – court held that the ∏ had failed to introduce sufficient evidence to support a jury finding that a negligently caused cut on the ∏’s forehead had caused the ∏ to develop cancer. The ∆ claimed that the ∏ had failed to show that the absence of a light caused the accident. and any one wound would have been fatal. and the award of damages for cancer was reversed. Williams v. a jury can look to circumstantial evidence and can usually rely upon its common knowledge. it is sufficient that the evidence shows that the ∆’s conduct more likely than not brought about the accident Ex. because the case involved a complex medical question. observing that “where the negligence of the ∆ greatly multiplies the chances of accident…the mere possibility that it might have happened without the negligence is not sufficient to break the chain of cause and effect. the jury could not find that the cancer more likely than not was caused by the ∆’s conduct. Factual Causation Encompasses three subcategories indispensable causes. LIU A. Advanced Group 400 – an expert testified that the assault and attempted rape of a delivery CLZ Tort 2010 39 . Kramer Service v. since but for the ∏’s negligent failure to keep gas in the car. Saelzler v. The ∆’s conduct can never be a factual cause unless the chances of harm to the ∏ have been multiplied Reynolds v. independently sufficient causes and otherwise substancial causes. Moreover. the jury could not rely on common knowledge to remedy the deficiency in expert testimony.TORTS I OUTLINE_ FALL 2009. Texas & Pacific Railway Co. If 20 senators simultaneously stab Caesar on the steps of the Roman Senate. PROF.” In determining whether a given act more likely than not caused an injury. DO NOT CONFUSE THE BUT FOR TEST W/ THE EVIDENTIARY STANDARD APPLICABLE TO PROVING A FACTUAL CAUSATION! EX. In determining whether a given act more likely than not caused an injury. §1. The court rejected the argument. – illustrates the two-part inquiry into causation. One expert testified that there was no casual relationship between the cut and cancer. neither can an expert witness. the evidence must show that more likely than not the ∆’s acts were a factual cause: a one in a hundred chance that the contribution was a but-for cause is no basis for liability. BUT-FOR TEST (Sine Qua Non) Factual Causation ∏ normally has the burden of proof Conduct is a “substantial factor” if it was: i. the car would not have stalled on the highway where it was foreseeably struck by the ∆’s truck. – a woman fell down an unlighted train station stairway and sustained injuries. Steves Industries. Just as a jury cannot speculate causation. ∏ is not required to establish causation in fact w/ absolute certainty. ii. Ex. An expert’s testimony must be solidly rooted in the evidence. Inc. a jury can look to circumstantial evidence or expert testimony. Based on that evidence. or can rely upon common knowledge (in the absence of direct evidence) When the events are viewed retrospectively. Court held that an award of damages for the death of the ∏’s children had to be reduced by reason of the ∏’s comparative negligence. “But for” or (1) indispensible contribution (2) can be more than one “but for” ii. because the fall might have occurred even in broad daylight. and the other estimated the chances at only one hundred. § Indispensable Causes Sina Qua Non “but for” test i. Independently sufficient (if #1 is not satisfied) (1) If the ∆’s conduct made a material contribution to the production of harm (2) Ex. the stabbing inflicted by Brutus is a factual cause of the death b/c it was independently sufficient to cause the death.
some other test is needed. The court found that medical science now makes it possible to estimate a patient’s probability of survival w/ reasonable certainity and therefore recovery for the lost opportunity of curing a disease was particularly appropriate. The court concluded that the testimony was speculative and could not support a finding of factual causation because the ∏ could not identify her assailants. To recover from the D. duty should have gone up Knowing = constructive notice b.M. and the resulting conflagration destroyed the P's property. iii. the accident would not have occurred. To recover. THE “LOSS OF CHANCE” DOCTRINE A. Allows ∏ to recover damages by showing that the ∆ was a substantial factor in causing the ∏ to lose a significant chance of escaping the harm in question a. and any one of them. Absent identification. But for the negligence of each ∆. Ex. Ex. would have been sufficient to cause the identical result. Independently Sufficient Causes If two or more causes concur to bring about an event. The ∏ must prove that but for the ∆’s tortious conduct.and each of itself is sufficient to bring about harm to another. both actions were factual causes of the injuries sustained by a passenger in the second vehicle. If the D's fire made a material contribution to the production of the harm. the chance would not have been lost Example. Birnbaum – the court recognized the loss-of-chance doctrine in a case where medical malpractice deprived the ∏ of a less-than-even chance of surviving cancer. Difference btw all or nothing and loss of chance CLZ Tort 2010 40 . v. ∏ is not required to establish causation in fact w/ absolute certainty. the ∏ couldn’t prove it would have a. (b) another fire of uncertain origin.Co. liability could be imposed. indeed must. In a case in which on was negligent for leaving his truck parked in the road. Minneapolis – A fire negligently started by the D merged with a fire of unknown origin. LIU person at an apartment complex was caused by the absence of daytime security personnel and poor maintenance of the gates leading into the complex. If the ∆’s fire was a “substantial element” in causing the ∏’s damage. the actors negligence may be found to be a substancial factor in bringing it about. an accident may. Anderson v. P & SS. if two forces are actively operating. even if the other fire alone would have been sufficient to cause the entire destruction. See SATL p. liability could be imposed. Texas rejects this doctrine B. the P was not required to prove that but for the D's negligence the harm would not have occurred. St. PROF. The ∏ could have argued B<PL theory or that b/c ∆ knew he had a gang member living there. and the other ∆ was negligent in failing to take evasive measures to avoid hitting it. or (c) a combination of the two fires. –in other words but for test applies to all cases except those involving two independently sufficient torts. it is sufficient that the evidence shows that the ∆’s conduct more likely than not brought about the accident iv. .. the added security wouldn’t necessarily stop the attack. Causation based on breach of statute The breach of a statutory duty itself may give rise to an inference that an injury was the proximate result of the violation Multiple “but for” Causes As shown earlier. Minneapolis. it could not be said that the attack was more likely than not perpetrated by intruders.Ry. operating alone.TORTS I OUTLINE_ FALL 2009. have more than one “but for” cause.∆’s property was destroyed by (a) a fire negligently started by the ∆. Matsuyama v. and so more than one ∆ may be liable for injury. 367 for hypos §2. Difference b/w this case & Montgomery is that in this case. the ∏ was not required to prove that but for the ∆’s negligence the harm would not have occurred. Substancial Factor Test for Causation a. rather than by other tenants who had been responsible for a substantial number of incidents and disturbances at the complex.
Burden of proof shifts to the ∆s Market Share Liaility CLZ Tort 2010 41 . a. Was the increased risk a substantial factor in producing the patient’s injuries? D. If the evidence shows that only one or several ∆s was at fault. only in cases where it is shown that all ∆s are negligent. While attempting to shoot a quail. Summers v. The nature of the accident makes it impossible for the ∏ to prove causation Each ∆ is subject to full liability for the ∏’s injuries.TORTS I OUTLINE_ FALL 2009. Tice . PROF. In cases of aggravation of a pre-existing condition. §4. Each is shown to have acted tortiously ii. Some courts leave assessment of damages up to the jury based on evidence b. Damages a. absent proof of lack of causation A. and relying on the fact that both Ds were shown to have been negligent (whereas the P was completely innocent). ENTERPRISE LIABILITY & MARKET SHARE Overview A. the court held that the burden of proof on the issue of causation should be shifted to the Ds. all or nothing.The P and both Ds were members of a hunting party. Each would be held liable unless he could show that he was not responsible for the harm. the two Ds negligently fired simultaneously in the direction of the P. Under the rule in Summers. one of the shots put out the P's eye. the burden of proof will shift so (D) will not be silent. a two part test is employed for factual causation: a. Did the negligence increase the risk of harm to the patient? b.over 50% survival rate you get relief if you have lower than 50% than you get nothing (ct said unfair) ii. Some courts: multiply the lost percentage chance of survival by the damages that could be recovered in a wrongful-death case §3. The actual wrongdoer is one of the small number of ∆s before the court iii. LIU i. MULTIPLE FAULT AND ALTERNATIVE LIABILITY Multiple Fault and Alternative Liability The burden of proof on factual causation shifts to the ∆s. C. the rule of multiple fault and alternative because if not all joined in suit one of the partys actually responsible could escape liability. loss of chance. if: i.treat defendants negligence as an injury to plaintiffs. Finding that it was unreasonable to require the P to prove which D had caused the injury.
Respondent Superior a. Enterprise Liability A. It occurs within the authorized time and space limits iii. and (1) If force is intentionally used by the servant against another. Civil Conspiracy (by agreement) b. would tend to apportion liability so as to correspond to the overall culpability of each D. UNLESS the ∆ demonstrates that it could not have made the dosages which caused the ∏’s injuries A. The ∆s could better absorb or spread the cost of injury C. the ∏’s recovery is limited to a percentage of her losses equal to the percentage of the national market represented by the ∆s B. market shares should be calculated on a national basis. measured by the amount of risk of injury each D created to the public at large. who is without fault. LIU Market Share Liability CALI version: each ∆ will be liable for the part of the judgment proportional to its share of the market. of the manufacturers who had sold DES for use by pregnant mothers. supra. and the P would probably be unable to recover the full amount of her damages. as it could be said in Summers. court held ∆ liable) b. Furthermore. where both of the two negligent hunters were sued.The NY court held that to reduce the burden on litigants and ensure a greater degree of consistency between individual cases.The P. The unavailability of proof as to causation was at least as much fault of the ∆s as it was of the ∏ B. that one of the ∆s before the court must have caused the injury. Nor was it feasible to require the ∏ to establish such certainty by joining as additional ∆s the remaining manufacturers. It is done by a purpose to serve the master. the court believed. In Sindell. NY version: manufacturer’s shares are calculated on the basis of a national market. Hymowitz v. Paso Chamber of Commerce (western event where girl ran into glass door b/c she was being chased by an agent of the ∆s’.TORTS I OUTLINE_ FALL 2009. If the ∏s can establish by a preponderance of the evidence that the things in issue were manufactured by one of the ∆s. Concerted Action a. a young woman. for in all probability some had gone out of business and others would not be subject to the jurisdiction of the court. the burden of proof on causation would shift to the ∆s Shifting the Burden of Proof A. liability of DES producers is several only. In addition. but it was impossible to establish which manufacturer had made the dosages that were taken by the P's mother a generation earlier. It could not be said in Sindell. In the work setting. CASE: See Moore v. but not all. B. claimed to have contracted cancer as a result of prenatal exposure to the drug DES. Abbott Labs (CA Rule) . as articulated in Summers. Placing the burden of proof on the ∆s would be an incentive to safety in the future Grounds for Joint and Several Liabilities A. a ∆ CANNOT escape liability even w/ proof they didn’t make the dosage. Doing so. and A. It is the kind he is employed to perform ii. the court determined that under its approach to market share liability. was inapplicable to the case because only five of the nearly two hundred manufacturers of DES were before the court. The rule of alternative liability. Controlled by a small size group of ∆s B. an employer will be held liable for the torts of another employer. the court held that a manufacturer who distributed the drug for use by pregnant mothers could not avoid liability by proving that it did not make the dosages of the drug which had harmed the P. She sued some. PROF. the embraced a compromise position pursuant to which neither side in the litigation gained everything that it wanted: a D might be held liable although it did not make the pills taken by the P's mother. Sindell v. (NY Rule) . IF: i. Definition: one person. Eli Lilly & Co. The Ds were shown to have been negligent in testing marketing the drug. the use of the force is not unexpected by the master CLZ Tort 2010 42 . is held vicariously liable for the tortious actions of another c. In Hymowitz. Aiding-and-Abetting B.
even though she did not specifically know that he was committing burglaries. An unlawful act. Halbertsam v. Joint Enterprise CLZ Tort 2010 43 . if any. Civil conspiracy b. General awareness by the ∆ of his or her role in the overall illegal activity C. ∆’s presence or absence at the time e. The principal distinction between civil conspiracy and aiding-and-abetting is that a conspiracy involves an agreement to participate in a wrongful activity B. LIU d. Aiding and abetting C. B. In furtherance of the common scheme A. A wrongful act by the principle causing injury B. CONCERTED-ACTION LIABILITY Overview A. In the subsequent suit. Duration of the assistance Foreseeability: one who assists a tortious act is liable for reasonably foreseeable acts done in connection with it A. Aiding-and-Abetting Aiding-and-Abetting A. they could be held fully responsible for the resulting injuries to the P. B. Nature of the act encouraged b. Civil Conspiracy Civil Conspiracy A. Herman v. ∆’s relation to the tortfeasor f. Two forms of concerted action: a. Under concerted action. If these Ds encouraged or otherwise aided the misconduct of the primary actors. Welch . the court refused to allow the complaint to be dismissed against certain Ds merely upon a showing that they were not the parties who laid hands upon the P. Proof is essential. or w/in the scope of. D.A wife who for years had helper her husband to dispose of the loot he had acquired through illegal activities was held liable under both theories of concerted action for a murder he committed during a burglary. Substantial assistance a.TORTS I OUTLINE_ FALL 2009. the conspiracy Must have proof of damages In tort law (unlike criminal law) a conspiracy to commit a wrong is not actionable if in fact no wrong is committed. Wesgate – the ∏ was was thrown overboard during a floating stag party and sustained injuries. or b. ∆’s state of mind g. was a question of fact for the jury to determine. The extent of their participation. To do a. PROF. An agreement between two or more persons B. Amount of assistance c. Harm caused by the act of a party to the agreement D. Joint enterprise §5. suit may be maintained against a person who stood in a particular relationship to the wrongdoer. The use of violence to avoid detection and apprehension was a foreseeable risk of several types of criminal conduct that were foreseeable from the regular acquisition of the loot. Duration of the assistance d. Agreement – tactic or explicit—is the key distinguishing factor of civil conspiracy A conspirator is liable for acts done in furtherance of. A lawful act in an unlawful manner C. C.
B. Hustler Magazine – raises the issue of whether statements in a widely distributed publication can give rise to tort liability for physical injury based on a theory of tortious “incitement.Freedom of speech a. express or implied. Herceg v. and that incitement was directed to imminent action. but also less formal arrangements for cooperation during more limited period of time and for more limited purposes B. An equal right to a voice in the direction of the enterprise. plaintiffs usually have to establish that the publication went beyond mere advocacy and amounted to incitement. for liability to arise. The court held that. Elements a. the ∏s had to establish that the publication went beyond mere advocacy and amounted to incitement. An agreement. It is necessary to consider whether communications are protected by the 1st Amendment a. forseeability – liability will not be imposed for harm that is unforeseeable ii. the conduct or the victim a.” In Herceg a boy was asphyxiated while engaging in sexual acts depicted in a magazine. Relevant variables a. among the members d. EXCEPTION: publications of material relating specifically to the ∏ have been upheld a. PROF. let alone incitement. A common purpose to be carried out by the group c. iv. A community of pecuniary interest in that purpose. defendants level of culpability b. The court found that under no fair reading could the article be seen as advocacy. which gives equal right of control C. degree of “culpability” iii. Culpability a. Includes a partnership. publishing the name and address of a witness to a crime while the perpetrator is still at large…ONLY if the criminal murders (or harms) the ∏ CLZ Tort 2010 44 . Unforeseeability of the injurer. among the members of the group b. Cases against the media have typically failed C. Ex. know if defendants statement is protected by the first amendment c.TORTS I OUTLINE_ FALL 2009. LIU A. cts generally unwilling to impose liability on an aideing and abatting theory against seller of goods or media. Usually a question for the jury Incitement i. A.
∏ must carry the burden of proof B. Ybarra a. but only that ∆ acted in concert w/ the wrongdoer G. DIRECT CAUSATION VS. Remember different ways of assessing proximate causation. Burden shifts to ∆s if the number sued is sufficiently substantial to prevent injustice F. One should not automatically be held liable for all of the consequences of one’s actions. Burden shifts to ∆ if all jointly controlled the risk and there is virtual certainty the responsible party is in court E. Direct Causation a. Summers a. PROXIMATE CAUSATION §1. Matter of foreseeability F. §2.TORTS I OUTLINE_ FALL 2009. PROF. there is no liability a. Liability is limited to foreseeable results Both views have influenced the development of the law CLZ Tort 2010 45 . MUST have both factual and proximate causation to have tortious liability E. A POLICY ON FAIRNESS Overview A. especially if the results are unexpected C. If tortious conduct has factual causation but not proximate causation. Paradigm Case a. FORESEEABILITY Overview Two Paradigms A. Burden of proof shifts to ∆s if all were negligent and the responsible party is in court D. put simply: A. Liability is imposed even for unforeseeable harm directly resulting from the ∆’s tortious conduct B. ∏ need not show that ∆ caused the harm. ∆ who previously engaged in particular type of conduct is liable even if it can prove that it neither caused the ∏’s harm nor acted in concert with the party that did CHAPTER 8. Policy determination on the issue of how far liability should extend for harm factually caused by tortious conduct B. LIU Perspectives on Factual Causation Factual Causation. Hall a. Halberstam a. Hymowitz a. Foreseeability a. Sindell a. ∏’s burden is eased C. Tends to limit liability D.
and the liability is limited to those damages which were. Does NOT matter how unforeseeable the harm is c. PROF. LIU Direct Causation 1. and the resulting fire destroyed the entire vessel. The court held that even though the spark could not reasonably have been anticipated from the falling of the board. Not due to independent acts c. or should have been foreseen by the actor a. 1 . The harm is directly traceable to ∆’s negligent act b. under direct causation approach liability is asssesd whenever there is a direct connection between the negligence of the defendant and the injury to the plaintiff. however unforeseeable and grave. Essentially an assessment from hindsight C. so long as the damage was directly traceable to the negligent act. the fact that the damage was not the exact kind or amount that one would expect was immaterial. Polemis . The harm is directly traceable to ∆’s negligent act e. leading to a fire which destroyed the wharf. not until the threat of causation is broken by the intervention of a superseding cause does the scope of liability cease b. and not due to the operation of independent forces. The court found that current ideas of justice argued against saying that because of a venial act of negligence. an actor should be liable for all direct consequences. Since there was an express finding by the lower court that it was not foreseeable that the oil could be set afire when spread on water. According to the court. Liability. if the act was negligent in that some damage was foreseeable.a plank was negligently knocked into the hold of a ship. Wagon Mound No. It is immaterial whether the harm is that one would (foreseeability is irrelevant) Direct causation is also called the “hindsight” approach B. Polemis: Direct Causation ∆ is liable for ∏’s harm if a. The fact that the damage was not the exact kind or amount that one would expect was immaterial. Not due to independent acts f. The assessment is prospective. the D was liable for all of the destruction. the plank struck a spark which ignited petroleum vapor. so long as the damage is traceable to the negligent act B. the court opined. A. It is immaterial whether the harm is that one would (foreseeability is irrelevant) Direct causation is also called the “hindsight” approach Foreseeability A. Molten metal dropped by the Ps' workers ignited the floating oil. In the course of falling. CLZ Tort 2010 46 .A case which arose from the careless discharge of furnace oil into waters near the Ps' wharf. depends upon the reasonable foresseability of the damage which in fact occurs. Must be a natural and continuous sequence a. Must be an unbroken stream from the actor’s conduct. the D was not liable for the loss of the wharf. Liability depends upon the reasonable foreseeability of the damage which in fact occurs Foreseeability View ∆ is liable for ∏’s harm if d.TORTS I OUTLINE_ FALL 2009.
the fact that the actor neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred does not prevent him from being liable B. The actor’s conduct may be held not to be a legal cause of harm to another where after the event and looking back from the harm to the actor’s negligent conduct. If the actor’s conduct is a substantial factor in bringing about harm to another. LIU Foreseeability of Harm or Manner of Its Occurrence A.TORTS I OUTLINE_ FALL 2009. PROF. (Hindsight approach) CLZ Tort 2010 47 . it appears to the court highly extraordinary that it should have brought about the harm.
the foreseeability view of proximate causation covers much the same ground as the direct causation rationale. namely the P's being struck by a car driven by an angry picnicker. Ordinary rescue efforts However: A. Proximate cause and eggshell. Since the D had offered no justification for the discharge of oil into the harbor. The impossibility of advance identification of the particular person(s) who would be hurt was without legal consequence.The court here had expressly determined that the combustion of furnace oil on water was a foreseeable. b. Kinsman No.A risk of physical harm to the P was a foreseeable consequence of the D's failure to have adequate security.TORTS I OUTLINE_ FALL 2009. Foresight of a remote possibility of harm may be sufficient to establish proximate causation a. which in fact was illegal. The ∆ need not anticipate the exact manner of the occurrence a. MODIFIED FORESEEABILITY Modified Foreseeability What must be foreseen? A. Kinsman #1) B. possibility. Merhi v. B. That the negligent act directly set in motion the sequence of events which caused death at the time it occurred.The court held that as to each of the three D's the Ps. LIU §3. – hence eggshell skull doctrine take plantiffs as you find them – as isi. Wagon Mound No. would not have been anticipated. 1 . Full extent of harm (Kinsman #1. whose properties bordered the river below the dock but above the bridge. the ice. General type of harm What need not be foreseen? A. Inconclusive whether injury by taxicab caused death . Taxi cab driver hits respondent. though remote. The ∆ need not anticipate the exact extent of harm. What need NOT be foreseen? A. It is never necessary for the ∆ to foresee the identity of the particular ∏. to the extent that there is a duty to anticipate the remotely possible. Remember it is not if action would cause a specific injury but any injury. ii. at least to the extent that the prospective danger can easily be avoided. Becker . General class of persons (Palsgraf.common in that the tend to make the amount of damages actually paid by negligent defendants as whole approximately equal to the amount of harm done by those defendants. Foreseeability is not sufficient to create liability if harm is “too tenuous and remote” (Kinsman #2) What must be foreseen? A. Exact manner of harm (Merhi) B. It is enough if there is danger of harm to the class of persons of which the ∏ is a member a. C. here the damage was caused by just those forces whose existence required the exercise of greater care than was taken--the current. the court determined that there is a duty to anticipate even remotely possible risks. the court reversed a judgment in the D's favor. The result must be within the risk created b the ∆’s conduct (Di Panzio) B. and the physical mass of the Shiras. found guilty of negligence and the latter free from contributory negligence injured hip and knee. Further. went to hospital died two days later from delirium tremens.physician states could have condition before accident. See Palsfraf b. Relying upon what was essentially a Learned Hand type balancing test applied not to the element of breach but to the issue of proximate causation. the court stated: "foreseeability of danger is necessary to render conduct negligent. 2 . and the damage is of the same general sort that was risked. McCahill) C. B. the incurring of consequences other and greater than foreseen does not make the conduct less culpable or provide a reasoned basis for insulation. Eggshell skull Doctrine a. so it made no difference that the precise manner of the injury. were within the class of persons to which danger was foreseeable." "The weight of authority in this country rejects the limitation of damages to consequences foreseeable at the time of the negligent conduct when the consequences are direct. Interestingly. PROF. so long as the harm which ensues is of the same general sort that was risked by the ∆’s conduct CLZ Tort 2010 48 .
LIU a. even unforeseeable injuries. accordingly. McCahill .takes away liability in sense of what is usual and customary or to be expected. b. Di Ponzio v. PROF. it is fair to say that. i. They brought suit to recover costs for transport of the wheat via another route. However: A. which could not have resulted had he not been an alcoholic. CLZ Tort 2010 49 . SUPERSEDING CAUSATION Distinguishing Intervening and Superseding Causes Intervening & Superseding Causes Intervening A force that comes into play AFTER the ∆’s tortious conduct has occurred and actively contributes to the production of the harm for which recovery is sought Superseding An intervening force of the type that CUTS OFF the ∆’s liability and subsequent harm. It bears emphasis. Consequently. The court held that even though it was foreseeable that commerce on the river would be disrupted and that some parties would incur such costs. so long as they do not stem from superseding causes. for purposes of proximate causation. the law may decline to do so one the ground that the temporally remote harm was not proximately caused. with the important limit that the harm in question must be of the same general sort that was risked by the D. Risk of Harm Not Increase by Tortious Conduct An actor is not liable for harm when the tortious aspect of the actor’s conduct did not increase the risk of harm R2T: conduct is considered negligent when it tends to subject another to an unreasonable risk of *Review what is in pag 434 of txbook very important stuff B. the d is liable for all physical consequences. At some point so much time has passed. or it loosely interprets the foreseeability view so that foreseeability of the full extent of the harm is not required.Ps were owners of wheat aboard a ship that could not navigate because of the wreckage caused by accident. Foreseeability is not sufficient to create liability if harm is “too tenuous and remote” a. that it becomes unfair to impose liability and. a difference in manner of occurrence is irrelevant only if the result was within the risks that made the D's conduct negligent. Two days later the man died of delirium tremens. R3T: Result Within the Risk § 29. even a trivial one. Riordan . and so many developments have occurred. §4. i. Eggshell Skull--holds that once a P suffers any foreseeable personal injury. however.TORTS I OUTLINE_ FALL 2009. It is clear that temporal remoteness--the passage of time--figures into the assessment of proximate causation. The court held the D responsible for the death.Because the type of accident that injured the P was not among the hazards that are normally associated with leaving a car engine running during the operation of a gas pump. that the result must be within the risk created by the ∆’s conduct a. the relationship of those costs to the Ds' negligence was too tenuous and remote to permit recovery. The possibility that the intestate might have died later from DT because he was an alcoholic was not a defense. Kinsman No.The D's taxi negligently struck the P's intestate. the alleged misconduct of the D's employees did not give rise to liability.The case may be interpreted either of two ways: either it endorses the direct causation view of proximate causation. 1 . 2 . but could be taken into consideration in determining damages. Kinsman No. Limitations on liability for Tortious Conduct An actor is not liable for harm different from the harms whose risks made the actor’s conduct tortious § 30. finding that the negligent act had directly set into motion the sequence of events which caused the death.
doctrine is not a single rule / 2 out of the five allow victim to recover from the creator of th peril or the rescuer for injuries arising from the intervention. Rescue doctrine. held that legal causes is not established if the defendants conduct or product does no more than furnisht eh condtion that makes the plaintiffs injury possible. Superseding (e. The court held that the intervening act was not a superseding cause because the jury could find from the evidence that the foreseeable. . the mere fact that the ∆ could not anticipate the precise manner of the accident or the exact extent of the injuries does not preclude liability a.Was a cause involving a foreseeable result. Where acts of a third person intervene between defendant's conduct and plaintiff's injury. destruction of the cottages) a. Special Rules on Intervening and Superseding Causes a.g. Superseding Causation a.. Foreseeability determines superseding causes i. Felix Contracting Corp. in such case. LIU A.g. There is a gap between the tort and the claim B. thus negating ordinary foreseeability element of proximate cause. the D prime contractor had negligently failed to guard properly an excavation in the road. Ct determine parents not liable for acts were not foreseeable and was a superseding cause of the injuries. PROF. Intervening (e. heavy rain) a. and three of which relate to the ability of the rescuer to recover from the creator of the peril or a third person for injuries sustained in the course of the rescue effort. B. If the general sort of harm is foreseeable. Parent father was out of town in time of event and mother was out in the front lawn. was injured when a car chashed into the site after its driver suffered an epileptic seizure. b. the causal connection is not automatically severed and. one kid assaulted another and the parents sued kid and the locus in quo owners alleging negligence. CLZ Tort 2010 50 . Was the intervening force or the end result w/in the scope of the risks that made the ∆’s conduct negligent or otherwise tortious? End Results Within the Risk. A.three teenagers at the coffees house. Spears v Coffee . The P.law encourages people to help others during emergency.. the mere fact that the D could not anticipate the precise manner of the accident or the exact extent of the injuries does not preclude liability.another way to talk about proximate causation is to say that the results must fall within the scope of risk that made the defendants conduct tortious. the actor’s liability for subsequent consequences of antecedent tortious conduct is NOT superseded c. normal and natural result of the risk created by the D was the injury of a worker by a car entering the improperly protected work area. If either the intervening force or the harm which ultimately ensues is reasonably foreseeable. If the general sort of harm is foreseeable. Conditions v Causes a. liability turns on whether the intervening act is a normal or foreseeable consequence of the situation created by defendant's negligence.TORTS I OUTLINE_ FALL 2009. Derdiarian v. There.wrongdoer may be liable to those who a 3rd party in trying to rescue from the perils of his wrongdoings. The force was a “normal” consequence of the ∆’s conduct (not abnormal or extraordinary) b. an employee of a subcontractor.
Altamuro v. even though CLZ Tort 2010 51 . the victim. the cases involve 3 persons: the creator of the peril. A driver cause an accident and while waiting for it to get cleared. Two exceptions to the general rule that an intervening cause does not preclude a finding of proximate causation if either the new force or the end result is foreseeable: a. another car is struck by lightning during an electrical storm b. Fails to perform a duty to protect the ∏ against criminal misconduct b. e. Fails to restrain a dangerous person over which it has custody D. Ex. Induce help. Coffee – court found that a violent attack by one minor guest on another was so unforeseeable that the owners of the home where the attack occurred could not be liable for alleged failure to protect the injured guest from harm. If crimes occur a lot in that one particular place. An act of intervention c. The attacker’s intentional criminal act was found to be a superseding cause of the victim’s injuries Rescue Doctrine (to induce help. liability for antecedent tortious conduct is superseded by the intervention of unforeseeable criminal or intentionally tortious conduct Intervening Criminal or Intentionally Tortious Conduct A.TORTS I OUTLINE_ FALL 2009. Spears v. which cannot be anticipated. Even if the ultimate harm is foreseeable. Tortious conduct by the ∆. Policy a. Rule: Foreseeable intervening acts do NOT break the chain of proximate causation a. It is unfair to hold the original actor responsible for the resulting harm if there was no opportunity to anticipate or guard against such intervention of criminal or intentional conduct B. . Common situations where a ∆ is likely to be found liable for harm caused by intervening criminal acts where the ∆ a. PROF. to be considered: Superseding causation Liability of rescuer to victim Liability of creator of the peril to rescuer Contributory negligence of rescuer Liability of a 3rd party to rescuer A. c. the ∆ MAY be held liable b/c the harm is foreseeable C. Imminent peril to the person b. and the rescuer. Brings into association w/ the ∏ a person known to be likely to commit a crime d. but not at all costs) The Rescue Doctrine Elements: a. Defeats the ∏’s efforts to achieve self-protection c. Typically. LIU Foreseeable Intervening Acts A.The decedent's re entry into a burning hotel in which he had previously performed two successful rescue missions did not constitute contributory negligence. Liability if superseded even if the intervening force is foreseeable. b. While a force of nature. Courts are reluctant to find that a rescuer's confrontation of a known danger amounts to contributory negligence. Milner Hotel. if the D's conduct in no way increases the risk of harm by the intervening force i. rather than an accident The doctrine governs liability for losses subsequent to intervention. but not at all costs B. but the doctrine may apply where the peril has been created by the “victim” C. Issues a. d. for alleged errors of judgment are to be weighed in view of the excitement and confusion of the moment a. Inc. will ordinarily cut off liability Exceptions to the General Rule A. Participants a.
but no inspection was ever made. Some courts hold the rescuer to a degree of negligence and other courts to a degree of recklessness a. Expense ii. PROF. An injured rescuer’s claim against the creator of the peril cannot usually be frustrated by claims of lack of proximate causation F. Relevant factors: a. LIU firemen had ordered all civilians out of the building. Limited Duty CLZ Tort 2010 52 .Duty of care was held to shift as a matter of law (contract between the companies). Likelihood the 3rd party will act i. and the case was remanded for further proceedings. EXCEPTION: professional rescuers cannot ordinarily avail themselves of the rescue doctrine and are subject to special rules Intervening Acts of the Victim A. The adoption of comparative fault did NOT abolish the doctrine of superseding causation §5. it is irrelevant that a 3rd person fails to prevent the harm B.TORTS I OUTLINE_ FALL 2009. even if negligence on the part of the rescuer aggravates the ∏’s injuries E. totally overlooks the negligence of one fo the parties to an accident B. A tortfeasor may be liable for injuries sustained by another in an effort to escape threatened harm. This shows that an intervening action may still be considered a superseding cause. An inspection of the wires would have revealed that the wires were rubbing together and wearing through. Once a ∆ has tortiously created a risk of harm to the ∏. A judgment dismissing the claim against the seller of the tractor-trailer was reversed. Relationship to the ∏ D. E. frenzy. Inconvenience iii. Lapse of time b. Character and position of the 3rd party i. Knowledge of danger e. even though it is foreseeable B. Court held that circumstances as a matter of law shifted the responsibility for preventing harm from the company to the village. the failure of the buyer to properly maintain the vehicle did not absolve the seller of liability for injuries caused by a dangerous condition. If the risk of suicide is unforeseeable to the ∆. Insulation from liability iv. most states will hold that the death was not proximately caused by the ∆’s negligence Limits on Foreseeability A. The court held that the sale did not shift responsibility to prevent harm solely to the buyer of the tractor-trailer. D. A determination may be made that all duty and responsibility for the prevention of the harm has passed to the 3rd person C. A doctor would be held liable if a patient commits suicide b/c they are qualified to make that distinction Superseding Causation and Comparative Principles A. Bailey v. Village of Stephen . – a company that had allegedly been negligent in its maintenance of a tractortrailer’s axle was sued for injuries that resulted when the wheels detached and struck the ∏’s vehicle about a year after the tractor-trailer was sold to another party. Goar v. as a result of fright. Moreover. Rule: Superseding causation is an all or nothing determination. or panic adds to the danger by an act which in a later serene moment may seem to have been unwise B. Normal rescue efforts don’t break the chain of proximate causation b/w the tortfeasor who created the peril and the victim. and even if the victim. SHIFTING RESPONSIBILITY A. Inc. Magnitude of threatened harm d. Lewis Farm. K governing duty to act c. if satisfied. An attorney is not required to protect a client against suicidal tendencies b/c lawyers have no special expertise in identifying or treating that kind of problem a. which its negligence allegedly created. Ability to act ii. which.
TORTS I OUTLINE_ FALL 2009. PROF. Failure to Act i. LIU A. CLZ Tort 2010 53 .
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