Reading Notes:

For hypo 6: Defense of Property cb. 37-44 09-01-20

Bird v. Holbrook: (1825)

Facts: the defendant had rented and occupied a walled garden in which he grew tulips. Upon the theft of
200 bucks of tulips. The DD installed a spring gun, without notice. PP wandered into the garden with the
purpose of retrieving a pea-fowl that had strayed into DD’s Garden. THe spring gun discharged and hit
the PP above the knee, leaving him maimed.

Issue: Is the DD Liable for PP injuries?

Rules: Someone is liable for the actions of a mechanism placed for the express injury of another.
It is inhuman to catch someone by means of endangering their life.
Notice must be given when you employ a means of protection.
No man can do what he is directly forbidden to do.

Holdings: the action is clearly maintainable. Because PP intended to do harm and did harm to the DD

Fentons version of the case:

SPRING GUN CASE
FACTS: They were not sleeping at the house when this happened. A spring gun is a set trap with wires or
releases. It shoots when you're not there. The trigger is designed to shoot when you're not there. The DD
was the servant and was getting the Peahen back for someone else his sole purpose was to get that
peahen. Then he was hurt by the PP. The PP can be described as a trespasse, but an innocent trespasser
(he wasn't trying to hurt anyone or anything). When he entered the Prop. he called out to see if anyone
was there, so he wasn't trying to hurt anything or anyone. Battery was caused by Intent because of
knowledge of contact and the injury was caused. The property owners were not protecting their life.

- innocent trespasser -- is used for the gray area.

Torts is civil thus private recourse. Criminal law is public ists the state making sure we live properly. In
criminals the consequences are more severe.

Defense of porperty: the gentle hands doctrine: its a common law req, that if someone invades or
trasppass your prop you must use gentle hands to get them to leave. You dont need to use force of any
kind to get them to leave.
Bear Trap: Is when you dig a really big hole and you put stakes inside.
-------------
Notes: From an economic perspective Judge Posner has analyzed the case:
- The issue from an economic perspective in the above case is: was the accommodation of two legitimate
activities, growing tulips and raising peacocks.
- Conc. from bird here: Sure you can accommodate them, protect them, with spring guns but you must
post notice
The malicious use of spring guns: Katko v. Briney: (1971) (p.41):
 ● Facts: PP kept breaking into DD’s and stealing from. DD posted signs of no trespass. DD set up a
shotgun trap and shot the PP in the legs.
● Rules: one may use reasonable force in the protection of his property, but you can't use that force
to kill someone or greatly maim them, even if they are committing a criminal act
● Setting up a spring gun is justified if, the felon is committing a violent felony or a felony
punishable by death
● The court held that you can't use spring guns for thieves PP won and was awarded 20,00 in actual
damages and 10,000 in punitive damages.
-------
Third Restatement of Torts: P. 42
● Takes a permissive approach toward the use of force in defense of property.
● (DD) M’LLvoy .v (PP)Cockran (1820) (p. 43)
○ Facts: the DD shot and severely wounded the PP, who was attempting to tear down a
fence on DD’d Prop
○ The court held that (1) the DD did not have to ask the PP to leave his Prop while he was
actively destroying it, as would be the case for simple entrance. And it rejected the DD’d
plea that this wounding was justified in def. Of prop. On the basis that that in cases of
actual force; it is lawful to oppose force with force
- The rules governing the protection of land and prop. From invasions is RTT: IT section 30

Recaption of chattels
● Kirby v. Foster: (p. 43) (1891)
○ Facts: PP received a check from his employer DD. PP thought DD had docked his pay so
kept what he thought was docked and gave the rest back to DD. DD seized PP in an
attempt to get his money back
○ Rule: The law does not permit parties to take settlement of conflicting claims into their
own hands. It gives the right of defense, but not the right of redress.
○ Holding: Employee did not have the right to seize his employee in order to get his funds
back, because he could bring action against him.
○ This holding goes against RTT:IT 32
● In order for someone to recapture his chattel he needs to have an immediate claim of right, and
knowledge that it is yours, you cannot breach the peace he can snatch it from the person. But the
best thing to do is to SUE someone over it.
● In order to snatch it back he person who stole it must be in hot pursuit, this is metaphorical. You
cannot however breach the peace
● I.e. the repo man, they are allowed to this as long they dont breach the peace. You also need to
make sure its yours
● You need to have good sense of what you need to recapture
● Recapture of chattel is a form of force
● Reqa for self-help
○ however breach the peace
○ You also need to make sure its yours
○ You need to have good sense of what you need to recapture
-- - - - - -- - - - - -- - -
For Hypo 7: Necessity: cb 44-55

Ploof v. Putnam (Vt. 1908) (p. 44)

Facts: PP was sailing on lake champlain with fam, and a storm came in. PP was forced to moor the sloop
at DD’s island for safety. DD’s servant unmoored the sloop and it was taken by the storm and PP and his
fam was injured as a result. Claim is two-pronged: (1) trespass by DD on PP through servant unmooring
sloop during storm. (2) Negligence: that the DD acted negligently by unmooring the sloop and as a result
the PP was injured:
Issue: Were PP’s actions necessary to save prop and people?
Rules: The entry upon the land of another may be justified by the necessity to do so, is especially
enforced with re. To human life.
The Doctrine of Necessity: Necessity (and an inability to control movements inaugurated in the proper
exercise of a strict right) will justify entries upon land and interferences with personal property that would
have otherwise been trespass.
Holding: yes It was necessary for PP to dock on DD’s moore as PP meets the reqs set by rule.
Notes:
General average Contribution: (P.46)
● In times of emergency, at sea, all are treated as joint owners of Prop. in question, so loss of prop
for saving life gets prorated among everyone.
● Mouse’s case hints at the elaboration of the necessity in the law of admiralty under a rubric of
General average contribution.
------------
Fento notes:
Incomplete privilege of property:
● Facts: Lake Champlain is in VT and it's a great lake, and there is a big storm PP decides to moor
the boat to shore and on a private island. He has his family with him. The DD is the island owner
sends a servant out there to untie the line. The boat is destroyed and they are all injured as a
result. It's okay for them to dock there because their lives were at risk. They get to assert the
privilege of necessity = in order to do this they need to have good reasons in emergencies. I.e. to
save their lives. So PP is trespassing on DD’s lands,DD’s actions do not qualify as gentle hand
doctrine , this does not constitute trespass DD had the knowledge of the likely consequences of
the actions (BATTERY IS THE CAUSE OF ACTIONS) when the DD untied the boat They
knew that the people would be out there in the storm and would be hurt. The storm was the
instrument of the battery.
● The knowledge that gave the PP the necessity to tie the4 boat should have been the same
knowledge that informed the DD of the necessity. This then becomes a battery.
● Necessity doesn't require assertion of the highest human intelligence; it requires that you exercise
choices that anyone in that circumstance would do.

(DD) Vincent v. Lake Erie Transport co.(PP) (Minn, 1910) (p. 47)
Facts: PP owned a dock which DD docked at during a storm. DD’s boat messed up the dock during a
storm (act of god) because cables mooring the boat were loose. PP tied and prudently held the ropes to
the dock preserving the boat at the expense of the dock.
Issue: is DD responsible for damages that his ship caused against the dock?
Rule: A party acting under private necessity is liable for damages incurred to the property of others.
Holding: Yes, Order affirmed, DD is liable because he needed to dock the boat there, or else his ship
would have been ruined by the storm.

Dissent: he who builds a dock and enters into the contractual obligations of mooring ships. Should share
some of the risk in emergency situations.
-------
Fenton notes:
● FACTS: Boat is docked because it is unloading cargo, entitled to be on the dock because they
were in a contract. When the storm came and they finished unloading cargo, you could call the
boat owner a trespasser. So then a storm comes along, the DD ties up the ship using metal lines,
they are asserting incomplete privilege of necessity, because they are trying to save their own
lives. But you have to pay for that privilege after the event. Merely, the fact that you are saving
your life doesn't mean you are exempt from paying your damages, you have to make the other
party whole.
● It is not possible to cover every eventuality in a contract, so then you go to the other area of
private law (ordering)…. Torts .
● This is the case where you get the highest human intelligence phrase. It's about doing what people
would do in this situation.
● Dissent: it is saying (is it contract and tort based) since they were entitled to be there in the first
place and since the contract didn't tell us what to do in the first place (chastising the attorney) i
guess that means you the dock has to eat it. Thus, in absence of contractual provision, the person
at loss has to eat it. We has to stay in contracts , and not go to torts.
● The incomplete part is the place were Dissent J is attracted to, because when you force someone
to pay for something else, it feels like a contract.

------
Notes:
● Vincent represents a case of conditional or incomplete privilege as DD may use or damage the
dock which he could not do in absence of necessity.
● Vincent’s outcome may be justified through Unjust Enrichment, which requires the boat owner to
compensate the dock owner for the benefit he received from the use of the dock
● Private necessity also has an important contractual dimension: the dock owner cant up the price
unreasonably due to the inbound storm and the necessity of docking. This is held both in
common law, and admiralty which will void a contract that does that.
● The holdout problem is averted by the practice of referring salvage awards to arbitration, through
often lloyds of london.
Public Necessity: (p. 51)
● Private parties or Gov. are privileged to destroy private prop. In order to protect the community at
large generally occur under two circumstances: (1)Where property is destroyed in order to
 prevent the destruction of a city by fire. (2) Where weapon facilities are destroyed in order to
keep them from falling into enemy hands.
○ Mayor of New York v. Lord: Held since the benefit is solely social, there is no reason
why a champion of the public should be held liable.
● The scope of this necessity doctrine is determined by the type of case it is. In one type of case the
property would not have been destroyed but for the actions of the DD. and in the second type of
case it would have been destroyed anyway.
○ Spearhawk reveals the asymmetrical incentives found in all cases of public necessity.
(p.52)
● Public Necessity and just compensation. (P.52)
○ There is an issue with the complete privilege of public necessity and the constitutional
principle that the gov. Must reimburse you for anything it destroys.

Judith Jarvis Thompson, The Trolley Problem (p. 53)

Hypo 1:

Is it morally permissible for you to turn the lever to kill the one person?
- Yes, it is true that at a minimum you MAY turn the trolley to kill one instead of five.

Hypo two:
Surgeon:
-It is not morally permissible, no
-------------------
Fentons Notes:
Act, omission or distinction -- this is a conundrum that you will encounter over your entire career, its a
false distinction.
- Your outcomes are determined by social expectations placed upon you
- when is consent meaningful = in coercive situtioan.
--------------------------------------
For hypo 3
Negligence: cb 143

● There exists a critical (dominant) role of negligence in the law of unintentional harms.
● Chapter will explore how negligence determines the scope of a defendant's liability for
accidental harms.
● There is a distinction between negligence as a form of subpar conduct v. negligence as a separate
and distinct tort
○ negligence as a form of subpar conduct: elemelement in the tort of negligence (which
contains four elements duty, breach and causation of damages.)

Vaughan v. Menlove (p.145)

Court of Common Pleas 1837
Facts: The debate the justices are having is whether we should take a subjective or objective
approach in determining a reasonable person standard.

- Reasonableness can only be understood as what's happening in the concert in the first
place.
- Reasonableness is intended to be objective, in the context in the profession. And there no
perfect way to do things.
- When you talk about negligence it is about conduct (either the conduct you did or ought to
have done).
- Reasonableness essence is to evaluate the conduct.
- you may use your property so as not hurt that of another (the latin phrase).
------
In calculations of risk, if our allegation of negligence is where he choose the haystack upon the
hand formula, was him not properly venting the stack -- it should come out identically to your
reasonable person standard…..

Issue: Should the defendant be held liable because he failed to act reasonably with respect to the
objective standard of intelligence, or should his personal intelligence be considered?

Facts: Menlove (DD) built a haystack near the edge of his property with a "chimney" to prevent the
risk of fire. He was repeatedly warned that it constituted a fire risk anyway, but said that he would
"chance it". The stack ignited, and burnt down his neighbour, Vaughan's, cottages. Vaughan seeks
damages in negligence. At first instance Menlove was held liable because he failed to act
reasonably "with reference to the standard of ordinary prudence". He appealed stating that he
should not be held liable for not possessing "the highest order of intelligence".
Rules:
1. You must enjoy your property so that you don't injure another. (DD is liable according to
this rule for neglect)
2. We ought to adhere to the rule which requires in all cases to caution such a man of
ordinary prudence would observe. I.E. what would a reasonable person do in all cases?

Held:
1. Appeal denied, we need a new rule instead of “old rule” the care taken by a prudent man
because, because it rests on the individual, instead of general principle, and it varies too
much from man to man. DD was grossly negligent and as a result haystack burned.
--------
Notes:
1. Today we use, in most of US, juries use the concept of objective reasonable person to
define the duty an ordinary person care
2. The common feature in most of these patterns “is the device of defining the negligence
standard by ref. To the conduct of a hypothesized person” -- traceable to vaughn
3. Abraham disputes the conventional view, in simple negligence cases the fact-finder,
given his familiarity with the activity caninvoke his conscience and thereby enforce a
community norm of app. Behavior.
4. Vaughan v. Menlove is credited with introducing the objective standard of care in
negligence cases.
5. Coggs v. Bernard and bailments (p.150)

The Common Law (150)

● The standards of law are standards of general application. With some exceptions
● Holmes is explaining the basics of negligence:
------------
- Blind people are expected to exercise due care for their conditions, but they are an exception to
the reasonableness.
- We acknowledge today more of the social differences in society.
- Circumstances change when you understand who the parties are.
- Age or blindness is the variable (but you still require an objective standard)
- i.e. a seven year old would require the same ordinary prudence that a normal 7 year would take
(a child of like age of maturity)
- Children are responsible for their intentional torts. Merely the fact that a child has done
something doesn't mean that the parents are liable for stopping their actions.
- reasonable care in the circumstances IS ALL WE WE EVER NEED
- we give leeway to experts and not beginners
 (PP)Roberts v. Ring (DD)(Minn. 1919) P. 152

Fentons version: A 77 year old man stuck a kid with his car at 4-5 mph, they are the town square and its
busy. Was the boy exercising reasonable care for a child of his age and maturityThe boy's conduct was
--not negligent (as he is not held to the same standard of care as older people) The old man's conduct was
--- Negligent (because he was too old to drive and knew it).
- variable objectives will be applied to the aged, not children .

-In beginners and learners : (we generally hold experts to a higher standard).
- When they hold themselves out to be an expert for all the world to see, then we will hold them to a
higher standard.
-

Facts: there was a kid 7 year old joyriding on the back of buggies. DD was 77 and his sight and hearing
were bad. DD was driving at 4 to 5 miles per hour. Other people were busy on the street. PP ran from
behind a buggy and was hit by an old man's car. DD saw the boy when he was close enough for him to
stop. Boy is 7 and is not subject of care as adults.
Issue: Was the evidence sufficient to raise a claim for a negligence claim.
Rule: When one by his acts or omission causes injury to others, his negligence is to be judged by the
standard of care usually exercised by the ordinarily prudent man.
Holding: Order reversed. Defendant should not have been driving in the first place due to his age and
infirmities.
(PP) Daniels v. Evans (155) (1966)

Facts: PP’s kid 19 was killed when his motorcycle collided with DD’s car. 19 year olds are generally not
held to the same degree of care as an adult. Trial court said he is a kid therefore he is not held to the same
standard of care as an adult. DD objeted
Issue Was the dd’s objection to the trial court charge of applying a different standard of conduct valid?
Rule A minor operating a motor vehicle must be judged to the same standard of care as an adult.
Holding Exception sustained, a minor operating a motor vehicle on the road must be held to the same
standard of care as adult operators.

Fentons Version of the case:

When declaring the variable on a child you need to understand the context.
How you assess causes of action - third party actions should never come into account for what that person
does.

We hold someone to a expert stadnar of

WHy dont we apply this standard of care to elder people…. Because they are are old so they should know
of theri infirmities.
----
Notes:
● Infancy and childhood: ALL US jurisdictions take into account childhood in the determination of
negligence.
○ Generally the third restatement adheres to this principle. Holding a child to the standard
of “ a reasonably careful person of the same age, intelligence, and experience.
○ Children under 5 are incapable of negligence
○ Charbonneau v. Macrury
■ Was overruled by Daniels v. Evans
■ The court justified its use of a varible standard of caare for infants as follows.
○ Hudson-Connor v. Putney
■ Held: it is not an adult activity for a 14 year old to entrust a golf cart to an 11
year old.
■ Driving a golf cart on private prop is not an adult activity.
○ Dellawo v. Pearson
■ Cites daniels
■ Held: 12 year old are subject to the same standard of care in t he operation of
speed boats. Even if no licensing statute exists.
○ Harrelson v. Whitehead:
■ 15 year old is held to the adult standard of care on the issue of contributory
negligence while operating motorcycles
○ Jackson v. McCuiston
■ 13 year old farm boy are held d to the adult standard of care in operating farm
equipment
○ Johnson for VJ v. Johnson
■ Held 12 year old farm boy should be held to the subjective standard of care for
minors in operating ATV’s on private prop because that is not an activity solely
used by adults
● Adult and child activities:
○ In Purtle v. Shelton
■ Arkansas in pushed back on ruling in Jackson by refused to hold children to the
standard of care of adults in using firearms because dear hunting is not something
just adults do
■ Third Restatement of Torts: handling firearms is a dangerous adult activity.

(PP)Breuning v. (DD)American Family Insurance Co. (pg. 159) (1970

Facts: PP. brought action when his for personal injuries sustained when his car was hit by an insured of
the Def. (Erma veith) . Veith (DD) veered across the center of the road into the lane of the PP. DD argues
that Veith was not negligent because when she did that she was “seized with delusion” thus she could not
operate the vehicle with a conscious mind. Jury found her Causally negligent because she had the
knowledge that her disability could cause this to happen. Generally, RTT: an adult DD mental and
emotional disability is not considered in negligence determinations.
Issue: Did Vierth have warning or prior knowledge that would reasonably lead her to believe that the
hallucinations would occur and to be such as to affect her driving an Auto.
Rule: Doctrine of liability for negligence: It is unjust to hold someone responsible for their conduct
which they are incapable of avoiding and which incapability was Unknown to him prior to the accident.
Holding: Judgement Affirmed, she had knowledge of her condition therefore she could have known the
possible outcomes of her actions. DD’s argument is without merit.

Fenton: Notes
● Mrs. Veith is driving negligently, because reasonable drivers don't swerve.
● FOrm the expert deposition we would get that this has happened before… and then she knew that
this would happen.
● Based on these facts, we would say that she had knowledge that something like this could
happen.
● IF you are an epiiticec you can drive if there was no way for you to know that the conduct would
have done this.
● Generalised risks dont not equal physical risks….

● We would apply a reasonable person standard to ms. veith. We would not use the fact that she
was cray cray, because she had knowledge of the chance of har.
● Her conduct comports with a reasonable person thats the only standard that should apply to her.
Be careful of conclusions assumptions. Just because she is crazy, doesn't necessarily mean she
did it.
● This si the same standard we also apply to our elderaly person here
● Asudden attack of any kind, that the reasonable person could not have anticipated, does not
constitute a viable claim. But in this case she had knowledge of the potential of her injury to
casue harm.
● What do we know about insanity generally ?
○ It comes and goes
-----
Notes:
● Bruening deviates from the general law (RTT) however multiple courts use this holding for
Sudden and unforeseeable mental incapacity.
○ i.e. Ramey v. Knorr
● Bruening has been narrowed in custodial settings i.e. for the mentally insane and disabled
people.
○ Gould v. American Family mutual insurance, The court refused to apply brueing.
● The imposition of the “reasonable person” standard affects people with mental disabilities
because it holds them to the same standard of others.

(PP) Fletcher v. City of Aberdeen (pg.164) (1959)

In Fact, PP’s husband was blind. And the city was digging a ditch, the city had put up barricades but an
employee of the city had removed them from a certain spot. A city employee had removed the barricade
in a spot and moved somewhere else PP’s blind husband was using his cane and fell into the ditch, lower
courts held that the city was negligent in removing the barricade without providing other warning.
There was a big fat hole in the public sidewalk. The employee removed the barricades cuase he was
working then forgot to put the barricades back. IT is part of the resposnbilites to of the city to put it back.
WHat is our duefualt position (where you always want to start) reasonable city under the
circumstances…. What a reasonable city under the circumstances would have done is protect a for all of
theri citizens…
_ the reason the city has a duty to public security = therefore you rneed to put up a barrier
-Fenton disagrees with having a higher care of duty over the blind man.
- reasonable car would prevent that from happening.
Issue was negligent in providing no other warning when removing the barrier.
Rule A city is required to maintain its streets in a reasonably safe condition for all its citizens.
Holding: Judgement affirmed, city is required to protect all its citizens, so to the extent of what any
reasonable person would do, regardless of their disability and under that specific circumstance. Cities
know that they have citizens with disabilities, thus they must afford a degree of protection which supports
their diabled citizens as well as regular people.
----
Notes:
● A city is obliged to provide use of its streets to the physically disabled, and adjust their level of
care accordingly.
● The goal of the average person rule: is to provide an additional incentive beyond that of moral
duty
● Duty - standard of car

Denver & Rio Grande R.R. v. Peterson (Pg. 166.) (1902)

- The level of care required by a defendant to determine negligent liability is constant regardless of
his wealth. Nor is it supposed to be reverent to justice
- Generally, evidence of a defendant's wealth is not admissible at trial in a tort case because nor is it
subject to disclosure during discovery.
- We would have to many careless people if this is thee case.
- being an attorney is a business
- the default position: is reasonable person standard. THIS IS ALWAYS HOME. Whats reasonable under
the circumstances….
- DUTY, BREACH, CAUSATION DAMAGES ISA RABBIT HOLE. DO NOT USE IT
ADDRESS THE ISSUE THAT IS THE PURPOSE OF THE EXAM.
- YOU JUST JUMP RIGHT IN,
- MY FIRST ISSUE IS:
- HOW TO APPLY DOCTRINES IN DIFFERENT CIRCUMSTANCES
- DON'T PROVE ANYTHING REGARDING CLASS
- ISSUE SPOTTING WHAT IS THE ISSUE AND ATTACK IT
- ALTERNATIVE STANDARD FOR CALCULATION OF RISK

Class Notes: September 1, 2020:

Wilkinson v. downton cont.

● Intentional infliction of Emmo distress, used to be known as a parasitic to other torts,

then it also req. Physical manifestation. You still kinda need physical manifestation.

Wallace v. Shoreham

Facts: PP tried to pay the waiter giving him a 20, and the waiter said no sir you gave me a ten. And the
waiter responded saying no sir you gave me a 10. SO PP is embarrassed and angry and sought judgement
for exemplary and punitive damages.

Intentional infliction of emotional distress: (elements) Intent, extreme and outrageous, and severe
emotional distress.

● extreme and outrageous: either of these would be sufficient. The redundancy is intended to give
emphasis.

● In Wallace v. Shoreham the waiters conduct was not extreme and outrageous. But how do we
articulate this?
○ Waiters not an uncommon enough scenario, to be considered extreme and outrageous.
○ Rule: common place events don't rise to the level of extreme and outrageous.

● The truth of the matter is relevant here. But it’s not the only matter that doesn’t matter. Truth is
relevant to assessing intent.
○ b/cus the truth here determines the intent b/cus the knowledge of consequences of actions
is known to the actor.
● In Wallace there was intent by the DD, because the waiter raised his voice to say what he said.
○ The fact that the DD raised his voice so that everyone around him could hear him proves
it was intentional, but maybe not.
○ Actor knows that his words will cause distress
● Severe emotional distress:
○ Hospitalization
○ Anxiety attack
○ Being angry and upset is not an example of severe emotional distress.

- Verbal torts want everything to be met, because its more fluid.

 - Think of the cause of action before figuring out what happened to the plaintiff.
- Establish your tort first; then care about the PP.
- Difference between assault and Intentional infliction of Emmo distress:
1. Assault: Is about fear, in essence apprehension, immediately the fear for apprehension is for
personal safety .

2. Intentional infliction of Emmo distress: does not have to be immediate, but could be, could
think about someone's personal safety, but not necessary. Severe emotional distress is the
essence to this kind of tort. this is typically a tort of words but it may be a tort of actions

● The intent component In intentional torts is the same, IT'S THE KNOWLEDGE of my
actions and their consequences:
Consent:
● You never need a defense if you don't have a cause of action.
● ALWAYS LOOK FOR THE TORTS first.

Mohr V. Williams:
Facts
- PP goes in to see a doctor and Dr. determines that she needs surgery on her right ear.
- When she’s knocked out he decides to look at the left ear, and discovers it was more deceased
than the right ear and he operated on the Left ear instead. PP wakes up in pain, so she's mad and
she did not give consent. There is no assault, because she was asleep. He had the intent to cause
the contact. So the surgical procedure is in fact a battery. The idea behind what's beneficial is not
the focus here. DD defense: He thought he had consent to do surgery. This implies any surgery.
This is a problem. Her consent was for the right ear. The Battery stands. The fact that her family
was in the room, unless he was given POA. we all get to dictate what happens to our own bodies.
It is not implied because it is not an emergency. He could have woken her up, it wasn't an
emergency. If you are conscious they require express consent. Emergency implied consent is if
you have a gunshot wound and you couldn't give consent.

Express Consent: Can be either oral or written has to be known .

implied consent: Depends on situation.

Scope of consent:
● Often refers to what's logical in that circumstance.
● You can only have consent in emergency situations.
● IF while in surgery the doctor discovers a problem, the doctor could have operated on the
issue, as long it's within the same scope of the authorized surgery it's good.

Substituted consent:
- it is required for minors (18) and incompetentes.
Implied consent by conduct:
- Consent could be implied by conduct or lack of refusal, that is to say what you are doing, gives other
people consent.

Hudson v. Craft:
Facts Kid was too young to give consent. The age of consent was 19. Is in a boxing match with another
person who couldn't give consent. The organizer was running a boxing match without a license. They are
both underage, might have been legal with a parent present. There is a battery, is there consent? Is the
consent effectual, this is dependent on the jurisdiction you are in. Street fights are breeches of the peace.
In the minority jurisdiction how does consent work is it effective or not? It is effective because both
fighters pay for their bruises. In majority jurisdictions a breach of the peace does not make consent
effective. The cause of action against the promoter, is that he is liable because he intended the battery
(contact) between them. The Kids were his instruments in causing this battery. So their consent is
ineffective. And he is liable .

Class Notes: September 3, 2020:

Mohr v. Williams
Notes:
● life is more complicated than bright line rules.

Huson v craft
Notes:
Implied v. express consent
In sports
- generally the scope of consent is implied.
- Implicit consent: getting hit is normal and it's implied. I.e. a foul etc. now a fist fight is a different
animal. It has to be within the scope of the game
- Explicit consent: s when you say directly you consent.
- there is certain behavior that is expected, but there is a line i.e. hockey.
- You can consent to be falsely imprisoned. But you have the right to revoke that consent at any time.

Privilege of Self-def: you can get it revoked at any time.

Courviser v. Raymond

Facts: Courvisier was the owner of the jewelry store and was lying in his bed above the shop. He heard
noise downstairs, he heard a bunch of people trying to break in. He wouldn't let them in so they trashed
the place from the outside but they never gained entry. His sister was also asleep upstairs in a different
room. What's on his mind is that a bunch of other places were broken into. Courviser has a gun, and the
people throw shit at him. This is all at 2 am. Raymond is the police officer that gets involved with the
situation. The cops see commotions and they react that Raymond was off duty and in plain clothes. So he
had no outward indication that would let people know he was a cop. Raymond goes over to help and
COurviser views him as an intruder, and shoots him and hits Raymond. So now we have Battery and
assault. We do not have that raymond assaulted Courvier

The biggest issue in this scenario is whether Mr. Courviser has a legitimate self def. claim .
He does if: (2)
- Can we say if the actions of Raymond were assault? No, because we don't have intent from Raymonf to
commit assault.
- If not, was there suff. Evidence of justification for the consideration of the jury. Raymond did ID
himself as a cop, but Courviser did not hear him
- Def. w/ obj. standard = what anyone in the circumstances would think is correct.

Defense of Self: Torts Chart 1

Posted on blackboard/ in notes.
Notes:
● Mistakes in self def.
○ If he hits an innocent bystander he still has the def. Of self
● Use of Force and levels of forces approp.
○ You are entitled to use force commensurate with the situation.
■ We avoid deadly force unless its used against yourself
■ If you use excessive force, the privilege no longer exists and the roles switch
and the defender becomes the aggressor.
■ The general rule for deadly force is, if you are going to use deadly force you
must retreat first before you use it.
○ Castle rule: is that you don't have to retreat if you are defending yourself in your home
you may use deadly force force.
● Stand your ground rule: theoretically allows you to take your home with you wherever you are
essentially you can use deadly force wherever you are.
○ Problems:
■ How do you know whos entitled to use deadly force
■ It encourages the generally public to buy into stereotype
■ It has increased deaths over time
■ THere is slightly more deaths among white men with stand your ground.
● Defense of others:
○ They are moving in the degree of reasonableness
■ You need to be sure that person needs defending\

Defense of Prop:
Bird v. Holbrook: (1825)

● This is the spring gun case

Bird v. Holbrook: (1825)
Facts: the defendant had rented and occupied a walled garden in which he grew tulips. Upon the theft of
200 bucks of tulips. The DD installed a spring gun, without notice. PP wandered into the garden with the
purpose of retrieving a pea-fowl that had strayed into DD’s Garden. THe spring gun discharged and hit
the PP above the knee, leaving him maimed.

Issue: Is the DD Liable for PP injuries?

Rules: Someone is liable for the actions of a mechanism placed for the express injury of another.
It is inhuman to catch someone by means of endangering their life.
Notice must be given when you employ a means of protection.
No man can do what he is directly forbidden to do.

Holdings: the action is clearly maintainable against PP. Because PP intended to do harm and did harm to
the DD

Reading Notes: 09-08-20

For hypo 9: Calc. Risk CB 167-188
Calculus of Risk: (PERSONAL RISK ASSESMENT)
CALACUALTION OF RISK: is a great for juries they love numbers. It helps in determining the
objective standard of care, but you don't want to force feed it. If you can make something sound mathy or
scientific juries love that
-
● Section deals with the judicial efforts to fashion and apply a standard of reasonable care.
○ Discussion attacks it on two levels (1) deals with the common-sense intuitive
understanding of the meaning of negligence as it applies to individuals.
○ Second, it address judicial efforts to to impart a more precise economic meaning of the
term
● Negligence = is the omission to do something which a reasonable man would do under the
circumstances. Or doing something which a prudent and reasonable man would not do.

(PP)Blyth v. Birmingham Water Works(DD) (p.167) (1856)

Proc. Hist/Facts: Lower court’s jury found that the DD was negligent. The DD owned and were charged
to lay down waterworks for the city. They had done so 25 years before it malfunctioned. 1855 was an
exceptional cold year. On Feb. 24th a large quantity of water escaped from the DD’s main into the PP’s
house. Due to an accumulation of ice on the plug. DD did what they normally did

Birmingham Water Works (Birmingham) (defendant) owned a nonprofit waterworks. Birmingham was
tasked with laying water mains and fire plugs in the city streets according to statutory specifications. On
February 24, 1855, a fire plug laid by Birmingham broke and allowed water to escape into the home of
Blyth (plaintiff). The fire plug had worked well for 25 years. On January 15, 1855, the city had
experienced one of the most severe frosts in recorded history, which continued until after the accident.
The ground was covered with ice and snow, and the fire plug itself was covered with a buildup of ice.
Blyth sued Birmingham for damages. At trial, the trial judge stated that if Birmingham had removed the
ice from the plug, the accident would not have occurred. However, the judge permitted the jury to
consider whether Birmingham had exercised the proper level of care to prevent the accident. The jury
returned a verdict for Blyth, and Birmingham appealed.

Issue: Do the facts present show that the DD was negligent.

Rules:Negligence is the omission to do something which a reasonable man would do under the
circumstances. Or doing something which a prudent and reasonable man would not do.

Holdings: DD was not negligent. DD could not have known that this year was going to be worse than
others. And they took reasonable steps to protect the water plugs by having someone changing the plugs,
and having them checked as they normally did.
It wasthe coldest year on file, so the Court concluded that the DD could not have anticipated this.
- The outcome is bunk, Point of law is good, but the advocates and the court missed a few things…. All of
the pipes were crusted up for three weeks… so it was observable….
- we will place the party on the reasonablity best able to change the outcome.
- the end result of this case is a vestige of a different tim.
- the point of law is good here
- Nott many town have plumbing
- court is aware of the consequences of its decsions and is part of society.
- This si not a good precedent case….
- this is the same pont as misses v: if its sudden and you can anticipate it… you are not liable
--------
Notes:
● This definition of negligence continues to be prevalent in modern tort law.
○ Section 2:10 of the New York Pattern Jury Instructions—Civil (2019) reads:
■ Negligence is lack of ordinary care. It is a failure to use that degree of care that a
reasonably prudent person would have used under the same circumstances.
Negligence may arise from doing an act that a reasonably prudent person would
not have done under the circumstances, or, on the other hand, from failing to do
an act that a reasonably prudent person would have done under the same
circumstances.

(pg. 168) Henry Terry: Negligence:

● Formula to solve negligence cases
● For conduct to be negligent the risk involved must be unreasonably great; injurious consequences
must be unreasonably probable.
● The essence of Negligence is unreasonableness
● Due care = taking only reasonable precautions against harm.
● (elements of ) Reasonableness of risk depends on five factors:
○ (1) the magnitude of the risk:
○ (2) The value of importance of that (principal object) which is exposed to risk.
○ (3) the reason someone engaged in conduct that risk of injuring the principal object to
obtain some other object (collateral object)
 ○ (4) The utility of risk: The probability of you obtaining the collateral object by putting at
risk the principle object.
○ (5) The necessity of risk: The probability that the collateral object will not be attained by
the conduct of which involves risk to the principle.

Eckhert v. Long Island R.R. (pg. 169) 1871)

Facts: A man ran and saved a child from an incoming train. That then killed him. The train company was
sued for Negligence. Its always something. In this case it was negligence speeding…. The man had has
exposed. The reasonable person in this case would have done what the man did!
Issue: Had the man exposed himself to unreasonable risk?
Rules: (elements of ) Reasonableness of risk depends on five factors: (which we dont look at with 20/20
hindsight)
1. Magnitude of risk:
2. The value of the principal object:
3. The value of the collateral object:
4. The utility of the risk:
5. The necessity of the risk:

Holdings: No, he was not unreasonable in saving kids life because:

1. Magnitude of risk: Was very great
2. The value of the principal object: his life, was very great.
3. The value of the collateral object: the child's life, was also v. great
4. The utility of the risk: the probability that he could save the child was great.
5. The necessity of the risk: had he not done that the child would have died

(pg. 170) Warren Abner Seavey, Negligence Subjective or Objective?

● Calculation of risk is a method of argument, there is no precision in determining the exact
amount.
● Psychologically speaking it is a very useful approach... it ids good for a jury
(PP) Osborne V. Montgomery (DD) (1931) (pg. 171)

Facts: A boy (13) was riding his bike as he worked for a local newspaper. The DD stopped and opened
the door of his car. The boy then hit the door of DD’s car and sued for damages . the Lower court found
the DD to be liable for negligence as he didn't look out to check if there was someone coming or not.

Issue: Whether an act that causes injury to another is automatically presumed negligent.?

Rules: Children are not subject to the same standard of ordinary care as adults
Holdings: No. Children are not subject to the same standard of ordinary care as adults. The
standard of ordinary care for an adult, sane person is the degree of care that most people would
exercise under the same or similar circumstances. No universal standard of ordinary care can be
expected of individuals, as it varies due to changing factual circumstances. The overall benefits
to society must be considered. If a person is driving a car slowly and carefully on a rainy day, the
person will not be liable for throwing mud on another person walking on the road. Society is
benefitted greatly overall by permitting people to travel in these circumstances. However, the
ordinary standard of care does not apply to children or insane people. In this case, the trial court
judge improperly instructed the jury on the ordinary care standard. Osborne is not subject to the
traditional ordinary care standard for adults. Thus, the decision of the trial court is reversed and
remanded.

Fenton’s Version
- You look to open your door before you get out of the car because you could lose your care
door, or knock someone into the road

(PP) Cooley V. Public Service Co. (DD) (1940) (pg. 1940)

Facts: A telephone company ran wires above a public street that carried signals to its customers’
private homes and to public phones. These wires were fully insulated and in compliance with
standard safety precautions. DD was an electric company that also ran wires above the telephone
company’s wires on the public street. Public’s wires were not insulated. During a heavy storm,
several of Public’s wires broke and fell onto the telephone wires. This created an electric shock
that burned through the wires. At the time, Cooley (PP) was outside having a conversation on a
public phone. The electric shock traveled through the wires and resulted in a loud explosive
noise in the phone’s receiver. PP experienced “traumatic neurosis” from the extreme fright
caused by the noise and loss of sensation on her left side. Cooley brought suit for damages
against the telephone company and Public. At trial, the jury found for the telephone company
and against Public. Public appealed, and the appellate court reversed.
Issue: Was it DD’s negligence that resulted in PP getting hurt?
Rules: An individual exercising the appropriate standard of care given the circumstances is not
liable for any incidental damages occurring to others from his conduct.
Holdings: There is no claim that the DD’s negligence caused the wires to fall. Maintaining the devices to
avoid electrical shocks to the PP, would have caused a greater risk to the general population as the wires
could break immediately and fall on some people. Whereas, the injuries sustained by the PP are remote
and rarely occur. Thus, DD was exercising the appropriate amount of care. Now, if a device that could
prevent this from happening existed PP failed to show that it did.

Fenton’s version:
- As long as you are using uninsulated wire high up its fine.
----------
Notes:
activity level v. care level:

(PP) US v. Carroll Towing Co. (DD) (1947) (pg. 177)

Facts: the barge Carroll was moving into port and had to unsecure a line that was secured from barges
connected to the pier. In doing so the barges released and hit PP’s boat in NY harbor. The maintainer of
the barge that was struck was not on board, Trial ct. Ruled for PP, so DD appealed. Judge hand came up
with B<PL, and ruled that
Issue: Whether liability for failure to take precautions to avoid harm depends upon the probability of
injury and the gravity of any resulting injury.
Rules: B<PL,
Holdings:Yes. Connors is contributorily negligent for its failure to take safety precautions by
having an employee aboard the barge during the daylight hours. Liability for negligence due to
failure to take safety precautions exists if the burden of taking such precautions is less than the
probability of injury multiplied by the gravity of any resulting injury. Thus, compared with the
relatively high risk of injury multiplied by the gravity of the injury, the burden on Conners to
take precautions is relatively low. Connors is thus contributorily negligent for its failure to take
safety precautions by having an employee aboard the barge during the daylight working hours.

FENTON:

The hand formula is incredibly still super useful. Some scenario’s req. It
Cause of action is negligence for staffing
- the more specific that you are the better it is for your argument.
- The hand formula was never intended to apply to all situations
------
The Hand formula: i.e. cost benefit formula
B<PL
Taking adequate precautions < ( Probability of harm * The gravity of the harm)
Burden of percutions
negligence x where is x the burden of percutions <
( Probability that something bad will happen * The gravity of harm)
- For all three of the things in our equations we use the Range
- The hand formula is similar to the reasonable person standard.
- when you see workds such as “serious” “not serious” “Reasonable” “not reasonable”
- Law and economics movement the hand formula is the start of it.
- the numbers are argument,
- the formula is not comparative, when you use the hand formula you apply it to a single
allegation or single point of analysis.
 (PP) Andrews v. United Airlines (DD) (1994) (pg. 186)

Facts: A briefcase fell from the overhead compartment and hit a passenger. PP sues and Trial ct. grants
summary judgement for DD. PP appeals.

Issue Did PP make enough of a case to overcome summary judgement for negligence? Was the hazard
serious enough to warrant more than a warning?

Rule: A common carrier owes a duty of utmost care and the vigilance of a very cautious person
towards its passengers, and is required to do all that human care, vigilance, and foresight
reasonably can do under all the circumstances.

Holding: Reversed and remanded, A reasonable jury could make the determination either way. So,
summary judgement was not warranted. PP has made a suff. Case to avoid summary judgement. United
has not given a reason why they have not taken further steps (past a warning) as such a jury could come to
the conc. that united has failed to do “all that a reasonable human would do with care, foresight, vigilance
under the circumstances”

Fenton’s Version:
Facts: the baggage fell out of the overhead bin and hit him causing him great harm, so PP has a cause of
action for negligence of maintenance internal compartments and of baggage compartments. PP
wanted the airline to use netting. So the cause of action could be negligence for the failure to negligent
nonuse for choice to not use netting. The airline won the case...
- the function of the net: is it really functional, probably not.
- the data proves that type of injury is miniscule.
- so, the overall benefit in comparison to the cost makes the cost of putting them in not necessary.
- Judges decide the law, juries decide the facts….
- Directed verdict would have been better here…

WHEN READING CASES and IRAC

- on a basic layer she harps on certain,
Fenton’s version of IRAC:
- ISSUE IN IRAC IS ALWAYS::::: anytime you identify any issue it is always doctrine and facts….
I.e.. Battery specific to the facts at hand. it's similar to a topic sentence….
- RULE: IS THERE FOR YOU, once you’ve identified the issue you use it for solving the problem,
its an organizational too. It's a guide… YOU HAVE TO DISCUSS every element in a rule.
- You want to be clear as to what rule you are applying.
- Facts (ANALYSIS): Hopefully you’ve identified in advance, then you plug the facts in that are
relevant….. It gives you a point of contact to every logical. DO NOT RESTATE THE FACTs. . just
take the rules as a formula and plug them in….
-MAKE SURE THE FACTS MEETS THE RULE …..
- You should spend most of the time on the analysis..
- anything you say on an exam should have a point

_____________________________________________________________________________________
Section D: Custom: Pg 188-213

● This is another method for determining breach of duty.. Is our source of the standard of care
● In negligence law Judges and juries have a great deal of latitude in setting up the appropriate
standard of care.
● Custom is generally used to set the standard of care in these kinds of cases as it helps reduce
uncertainty.
● This section addresses the role of custom in negligence cases.and the role custom plays in
medical malpractice cases.
(PP) Titus v. Bradford (DD) (1890) (Pg. 189)
Facts: DD was a railroad company who transported freight cars. However Part of their business was in
NYPANO railroads and these cars had different measurements when affixing them the DD followed the
industry standard of holding them with wooden blocks so they didn't wobble en route. PP was sitting on
top of a NYPANO freight car and it began to wobble… then it eventually killed him as he jumped off of
it.
Issue: Is def. liable for negligence for using an “unsafe’ appliance even though it is the industry
standard?
Rule: Employers are held to the same standard of negligence as the normal person. Employers have to
make sure that the work environment with machinery is reasonably safe, according to the usages, habits,
and ordinary risks of the business.
Holdings: Judgment reversed, No, PP was aware of the risks and had experience in the field to know the
danger. Furthermore the PP had taken the normal industry standards of care in affixing the cars.

Fenton’s Version:

●First question to always ask yourself when analysis of a custom case

○ IS THERE A CUSTOM
○ THE NUMBER OF PEOPLE THAT FOLLOW A CUSTOM
○ Length of time that that practice has followed….
● If your able to argue that something you are arguing is a custom:
○ You have to prove the standard of a reasonable person, under the circumstance
● Custom = a floor not a cieling,
○ You must meet the bare min. Under custom but that doesnt garueente you meet the
appropriate standard of care.
○ If you havent met custom you can still be fairly negligent or can
○ If you ha
○ JUST BECAUSE SOMONE DOES SOMETHING DOESN'T MEAN IT
NECESSARILY RIGHT
○ The custom has to be best for the community it serves
FACTS:
- DD could have bought a different freight car that fit this shape.
- PP was sitting on top of a car, his job was to tighten the wire, and the thing was wobbly. .. . . . its not
safe...
- DD’s won the case, conduct, standard practice (custom), it seems as though all of the railroad company
that run on this line engage in this conduct…
- The court then held its custom…
- the court did two things wrong:
(1) it did not discuss if custom is a reasonable standard
(2) nor did they used calculation of risk
● The court could have used the Hand formula
● Custom in this case is not an appropriate standard of care
● One of the benefits of custom, once you establish that it is a custom; its reliable to use. thus ,
formal realizability

(PP) Mayhew v. Sullivan Mining co. (1884)( Pg. 191)

Facts: DD owned a mining company where PP was an independent contractor of… DD had a Bucket-
hole about 35 ft. deep with no markings or indications of its presence. PP was working and fell in the hole
causing serious injuries to himself, he sued for negligence. Lower Court found that DD was negligent.
Issue:Can the normal industry standard be a grossly negligent standard, is DD liable even though he
followed industry standard?
Rule: Just because something is the industry standard doesn't mean that it's not grossly negligent?
Holdings: Yes, DD can be liable if following the industry standard in re. To gross negligence. Even the
DD had proved that this was the industry standard It doesn't matter they were still grossly negligent. The
notions of Custom and Average have no use here, because the actions taken by the DD do not illustrate
due care and reasonableness.

Fentons version:
The bucket hole is smaller, and was commonplace.
- you are not expecting bucket holes to have railings
ladder holes, are not a common place, should have a barrier around them.
-
Whether the mine breached there duty of duty care.
- Whether ladder holes should have railing around them… But holes in the platform are case
- Is custom relevant to the PP? No, because he is no a memeber of the industry…. He is an indept
contractor not a member of the industry

- compliance with custom is not enough to show non-negligence = just because everyone doesnt make it
right….

- custom is more favorable to the DD

- calc of risk is more favorable to the PP
● Custom is sometimes the appropriate, its not always the hand formula….
● Do not shut off your brain
 ●

The TJ Hopper (1931 ) ( Pg. 193)

SDNY
Facts: two tugboats got caught in a storm because they did not have radios to know that there was a storm
coming. Because the cargo got lost the Owners of the cargo sued the cargo company for negligence
because neither company had reliable radios that would have alerted them to the storm.
Issue: Were the hopper and the Montrose required to have effective radio sets to pick up whether reports?
Rule: Even if something isn't law, if its the industry standard for safety you still need to follow that else
you should be negligent for the loss of prop.
Holdings: (1) Yes, Hopper company (DD) was negligent, because there was a duty on part of the DD to
keep effective receiving sets for the safety of the cargo. B/cuz of its widespread “almost universal” use of
receiver sets among the cargo companies. (2) because other experts described receiver sets as “necessary”
the Hopper was unseaworthy, incapable of receiving weather reports. (3) the claims of the cargo owners
should be allowed

If you have a contractual relation it is probably understood that custom is involved someohow…

The TJ Hopper (1931 ) ( Pg. 193)

2nd Cir.
Facts: two tugboats got caught in a storm because they did not have radios to know that there was a storm
coming. Because the cargo got lost the Owners of the cargo sued the cargo company for negligence
because neither company had reliable radios that would have alerted them to the storm. Lower court ruled
for PP and DD appealed.

Issue: Was the owner of the tugboat reasonably diligent?

Rule: If some people in the industry have thought a safety device necessary, then it is reasonable to say
that they are exercising due diligence whereas, the others are not being reasonably prudent

Holdings: No, the owner was not being diligent. Affirmed, but for a different reason, This court held that
it is not fair to say that it is the industry standard for tugboats to use radios, however in exercising due
diligence a reasonable person would have a radio, as many people in the industry did. Therefore, If the
tugs had been properly equipped they would have been able to get the weather reports and not be in this
mess. In not having these devices they were negligent in not exercising proper diligence.
-----------
Notes:
The relationship between custom and negligence:
● Miller argued that the Titus rule deter new innovations by firms, b/cuz the rule of the unbending
negligence test forces has allowed wholesale attacks on industry polices
● TJ Hopper was quotes in Bimberg v. Northern Pacific railway.
○ Local usage and general custom do not excuse a def. from negligence
○ Many years of successful operation may be evidence of due care, but it cannot avail to
establish as safe in the law that which is dangerous in fact.
● RTT: LPEM
○ Section 13: CUSTOM
○ (a) Downplays the role of custom by saying custom does not preclude you from
negligence
○ (b) just because you don't follow custom doesn't mean you are negligent.
Custom and cost-benefit analysis:
● Hand’s cost-benefit formula and T.J. Hopper denies any conclusive weight to custom.
● Epstein fights for defense of custom over the hand formula:
○ (1) Cases that arises out of consensual arrangement, negligence is often the appropriate
standard for liability. then custom should be regarded as conclusive evidence of due care
in the absence of contractual obligations(consistent custom should be followed)
○ (2) in cases where harm does not fall upon DD custom should not be used as the standard
of care, b/cus it registers the prefencencesss of custom to parties not victimized by the
shit.
● Most Litigation that implicates questions of custom arise out of consensual situations I.e. TJ
Hooper.
● Here the Hand-formula is very interventionist than any other standard based on custom.
●
3. Custom and private rules of conduct:

PP Lama v. Borras DD (1994) ( Pg. 200)

Facts: Borras believed Romero had a herniated disc and scheduled a surgery. Before the surgery,
Borras did not prescribe bed rest or any other form of “conservative treatment.”After the
operation, Romero’s symptoms returned a few days later. Borras ordered a second operation. In
doing so, he did not order pre- or post-operative antibiotics. After the second operation,
Romero’s bandages were described by nurses as “very bloody.” He also experienced localized
pain at the incision; both signs of possible infection. A few days later, a nurse charted that
Romero’s bandages were “soiled again.” These were the only records entered by nurses about
Romero’s condition due to the hospital’s system of charting. Romero developed discitis—an
infection of the space between discs—and experienced extreme pain.
Issue: whether proof of a national standard of care and causation is required for a prima facie
case of medical malpractice?
Rule: Under Puerto Rico law, to demonstrate a prima facie case of medical malpractice, a plaintiff must
demonstrate the basic norms of knowledge and medical care applicable to general practitioners or
specialists, proof that the medical personnel failed to follow these basic norms in the treatment of the
patient and a causal relation between the act or omission of the physician and the injury suffered by the
patient.
Holdings: Affirmed for PP, Yes. Romero presented adequate evidence for a reasonable jury to
conclude Borras and the hospital were negligent, and this negligence was the legal cause of his
injuries as he has sufficiently laid the case for DD’s negli gence. Finally, a medical malpractice
plaintiff must prove by a preponderance of the evidence that the physician’s negligent conduct
was the factor that “most probably” caused his injury. Here, it is only necessary to consider
Romero’s claim that Borras failed to provide “conservative treatment” and was thus negligent.

Fentons version:
- Is conservative treatment customary?
Helen v. Carry: case in the notes
Its a cautionary tale, about the hand formula….

Murray v. UNMC Physicans (2011) ( Pg. 208)

Fentions facts didnt do brief

Facts:
Issue: Whats appropriate for a doctors diagnoses, should the
Rule:
Holdings: Class Notes: September 3, 2020:

Class Notes: September 8, 2020:

Defense of property: the gentle hands doctrine: it's a common law req, that if someone invades or
trespass your prop you must use gentle hands to get them to leave. You don't need to use force of any
kind to get them to leave.

You can only use force in def. If someone is using deadly force to harm or threaten you, because their
threat isn't against your prop it's also an attack on you.

The malicious use of spring guns: Katko v. Briney: (1971) (p.41):

● Facts: PP kept breaking into DD’s and stealing from. DD posted signs of no trespass. DD set up a
shotgun trap and shot the PP in the legs.
● Rules: one may use reasonable force in the protection of his property, but you can't use that force
to kill someone or greatly maim them, even if they are committing a criminal act
● Setting up a spring gun is justified if, the felon is committing a violent felony or a felony
punishable by death
 ● The court held that you can't use spring guns for thieves PP won and was awarded 20,00 in actual
damages and 10,000 in punitive damages.
-------
Fentons version:
● If we are always too strict in def. of prop then, it's not reasonable to enforce the laws. Think of
kids and pets trespassing
● Are rules need to reflect what actually happens in society
● In holbrook, “ one cannot do indirectly what one cannot do directly '' think of the spring one i.e.
you cant kill someone because you are not there, if they can't shoot someone directly.

Katko v. Briney: (1971) (p.41):

● Facts: They placed no trespass signs, and the house kept getting broken into so the DD placed a
spring gun in the bedroom. When you think of a bedroom you think sleep, so there is an
automatic response to say that you are defending people. The problem with this is that they
weren't there. The end result for Katko was that the PP did steal so he is responsible for
conversion and trespass of DD’s prop. PP is the thief, his cause of action is battery because we
have intent (by setting the spring gun you intended [the knowledge that your actions will cause
consequences] to cause the contact).
● Tort law is private action whereas a criminal suit is in public (the offense is viewed against the
state).
● This case was controversial on the fact that the thief had to pay 50 dollars and the owners had to
pay 30,000.
● Spring guns don't discriminate, so you can't use a spring gun, you can only use a spring gun if
you are present.
○ So the RTT is a political statement that you can't use them without you being present, but
you can have them -- this was done to settle people so they felt safer.

Ploof v. Putnam (Vt. 1908) (p. 44)

Facts: PP was sailing on lake champlain with fam, and a storm came in. PP was forced to moor the sloop
at DD’s island for safety. DD’s servant unmoored the sloop and it was taken by the storm and PP and his
fam was injured as a result. Claim is two-pronged: (1) trespass by DD on PP through servant unmooring
sloop during storm. (2) Negligence: that the DD acted negligently by unmooring the sloop and as a result
the PP was injured:
Issue: Were PP’s actions necessary to save prop and people?
Rules: The entry upon the land of another may be justified by the necessity to do so, is especially
enforced with re. To human life.
The Doctrine of Necessity: Necessity (and an inability to control movements inaugurated in the proper
exercise of a strict right) will justify entries upon land and interferences with personal property that would
have otherwise been trespass.
Holding: yes It was necessary for PP to dock on DD’s moore as PP meets the reqs set by rule.
Notes:
General average Contribution: (P.46)
 ● In times of emergency, at sea, all are treated as joint owners of Prop. in question, so loss of prop
for saving life gets prorated among everyone.
● Mouse’s case hints at the elaboration of the necessity in the law of admiralty under a rubric of
General average contribution.

Reading Notes September 13, 2020

Section E. Statues and Regulations: 226-244
● This section explores the ways in which the statute can add precision to the general negligence
standards of reasonable care.
● Statue is broadly construed to include not only state legislative acts but also local ordinances,
federal laws and fed. And state regulations
● How does astatue comes to be form of private right?
○ When the statute expressly creates a private remedy for one injured by its violation, the
court merely must follow its explicit command.
Anon:
● Holt, (1703)
● Whenever a Statute enacted anything, or prohibits anything. For the advantage of any person that
person shall have a remedy in the advantage given to him. But shall not have A REMEDY IN
EQUITY.
Ezra Ripley Thayer, Public Wrong and the private action. (1927)
● Question of law a point on which fair minds could reach one conclusion.
● It has thus declared the danger to be so serious and constant that a less sweeping prohibition
would be inadequate. And when eminent courts, using familiar phraseology, state that the breach
of the ordinance is not “negligence per se,” but only “evidence of negligence,” and leave the
question of negligence as a fact to the jury, they are doing nothing less than informing that body
that it may properly stamp with approval, as reasonable conduct, the action of one who has
assumed to place his own foresight above that of the legislature in respect of the very danger
which it was legislating to prevent.
● Thayer’s command is present in RTT: LPEH 14:
○ Courts should treat someones violation of a statue as actual negligence in of itself.
● Thayer 3 possibilities when you have three possibilities to use negligence per se with a statute
○ (1)
○ (2)
○ (3) The statue is 100% irrelevant
●
○ CDefective Statutes as a Source of Duty:
● Thayer relies on the common notion of legislative supremacy to justify the rule that
noncompliance with a statue counts as negligence per se. Which is in agreement with the RTT
 (PP) Osborne v. McMasters (DD) (Minn. 1889) (p.229)
Facts: A clerk employed at a drug store owned by McMasters (defendant) sold to the intestate of
Osborne (plaintiff) a bottle of poison. The bottle was not labeled as such, and Osborne’s
decedent ingested it without knowing it was poison.
Issue: is a person still liable for negligence even when they are not violating a statute that is in place for
a different reason, even when the gist of it is the same it was done in order to benefit society.
Rules: failure to perform a legal duty constitutes negligence.
Holding: , McMasters violated his statutorily-imposed legal duty to warn the public about
poisonous substances, and is liable for negligence. If a statute or municipal ordinance imposes
upon an individual a duty to protect or benefit others, and he neglects to perform that duty, the
individual is liable for injuries that are approximately caused by his actions if they are of the type
the statute was designed to prevent.

Rule for Negligence per se: (1) a statue is designed to protect a call of people (2) the person is
member of call that it defends (3)there must be a causal connection(4) The type of injurious
contemplated under the statue or the types of injuries were the ones the thing was designed to
prevent.

Negligence per se = presumptive negligence.

- you need to ascertain the purpose of the statute,

- whenever you start negligence per se, you need to find out what you need
(a) the legislative record could help
(b) Case history and precedent
 (c) Secondary sources….
(d) (the best method)
(e) Plain Meaning

The statue says whatever you say, use your logic and common sense to determine the meaning
behind it….

Notes:
Statutory causes of action versus negligence per se:
- Osborne v. McMasters: ID’s three possible functions of a statute in a tort action:
(1) The statue can create a private right of action by action that an individual injured by
the violation of this statute can sue the offender.
(2) As in Osborne, the Plaintiff can bring a common law negligence suit for her injuries.
here the DD’s violation of a relevant statute may constitute negligence per se. b/cus the court
would adopt the statute as a standard of reasonable care, and the DD’s violation is by definition
negligent
(3) Even if the DD statutory violations do not constitute negligence per se, the PP can
still argue that the DD’s underlying conduct was negligent. The plaintiff can still argue that the
DD underlying conduct was negligent.
Who is protected:
- Even where the statute supports a negligence action, the PP must show that she falls within the
class that is protected. Which is easier to do when a single statute is found to serve multiple
purposes.
Actions “for any injuries of the character which the statute or ordinance was designed to
prevent.”
- Gorris v. scott: p.231 Sheep was washed overboard, DD had failed to pen the sheep in
accordance with the requirements of the Contagious diseases act (quarantine). The court held that
since the provisions were not enacted with the purpose of protecting the animals during the
voyage there is no negligence per se.

Fentons version:
- Fencing keeps the animals segregated and prevents disease.
- Statue was designed to prevent disease spreading.
- You cannot read a secondary purpose in the statue.
- most statues don't care about you and your property. But when it is a general health statue then
- - the state has a public intrest and needs to step in. However, on an individual level.
Step one and two of negligence per se are good . however steps 3 and 4 do not meet the PP in
this case. Because no breach of statute…. So no negligence per se and no contributory
negligence….
- Three ways you can use a statue:
(1) Presumptive negligence
(2) Evidence of some negligence
(3) the statue isnt relevant

(3) There is a quarantine statue that requires fencing…. So sthey should have had it…. Because
the reasonable cargo carrier would have it anyway… so they should have.

- Posner questions this in Shadday v. Omni

Abrams v. young & Rubicam stressed the difference between both types of negligence
-At common law, so long as the plaintiff category is foreseeable, there is no requirement that the
risk of injury to the plaintiff, and the risk of the harm that actually occurred, were what made the
defendant’s actions wrongful in the first place.
With statutory claims, the issue is, instead, one of statutory intent: was the plaintiff (even
though foreseeably injured) in the category the statute meant to protect, and was the harm that
occurred (again, even if foreseeable), the “mischief” the statute sought to avoid.

Fentons notes:
- Statues are a source of duty; that's it, even if there is a breach of one it doesn't matter
-

Negligence per say rule: If there is a breach of statue.

(PP) Martin v. Herzog (DD) (1920) (P. 235)

Facts:
The descendant was killed in a collision between the buggy he was driving and the defendant's
automobile. The accident occured after dark and the DD was driving a buggy without any lights
in violation of a statute. The DD requested a ruling that the absence of lights on PP vehicles
constitutes contributory negligence, this was refused. The PP then requested that they consider
this as some sort of evidence of negligence, but not conclusive evidence of negligence. The jury
in the trial court then found the defendant liable and the descendant free from contributory
negligence and the plaintiff had judgement. Ct. of appeals reversed for error in the jury
instruction and This court affirmed the reversal.

Issue: Whether the failure to perform an act required by statute constitutes negligence per se?
Rules: An omission, or failure to perform an act required by statute, constitutes negligence itself
especially when it injures others.

Holding: Yes. Herzog is not liable for damages because Martin’s decedent engaged in negligence
by violating the headlight statute. An omission, or failure to perform an act required by statute,
constitutes negligence per se. When a statute requires an affirmative action, the failure to
perform that action constitutes a violation of a legal duty. It is negligence per se. The violator
may be liable for damages, but only if the omission is the proximate cause of the injury..The
decision of the appellate court is affirmed.

Fentons version:
Facts: PP (the guy with the headlights on ) severed somehow…. BUT DD did not have his
headlights on. There is a statute required him to do this he complies with (1,2,4) of the four part
test for negligence…. But part three of the test is harder…. IS there a causal connection?

Telda v. Ellman (negligence review case)

Its a nie review, you can discuss everything from negligence in this tiny little case.
- In Telda we have a brother and sister walking...they were walking on the side of the street
going with traffic instead of against it. They got hit, the car that hit them alleged that they
breached the statue…. (statues exist based on common custom). One of the problems with the
statute and custom: the statute codified custom without putting the custom in…. SO we have two
options in analysing this case. Whether we can interpret what the legislature did, (and assume the
court intended to add custom) or read as is (and say that the legislature knew about the custom
and chose not to include it). In this case you have negligence per se, Presumption does not mean
absolute or definitive. (negligence per se) Presumptions are always always rebuttable… cause
the reasonable person under the circumstances, might have violated the statute. In telda, the
reasonable walker under the circumstance, would have crossed the street . if you apply the calc
for risk PL are lower on the other side (the side that they were walking on) . We cannot call PP’s
conduct a breach of due care or even really negligence….

Brown v. Shayne (233)

Facts: THe chiropractor is not actually licensed. And performed treatment on the PP hurting the
PP leaving them paralysied. DD did not have a licensee, but does that matter? No. because the
license does not guarantee that you are competent in the activity you are licensed in. Sure, they
broke a statue by not having a license but in a tort action YOU NEED TO FINISH THE
NEGLIGENCE ANALYSIS.
- The license proves minimum competency, not competency.

- The license does not tell you the conduct of the person at every moment. THe Chiro (DD)
could have done everything right and the person could still have been paralysied.

The essence of negligence is: Conduct. I.e. what did you do or not do that you should have done

Ross v. hartman (238)

- Our default position is that you are not responsible for other people's actions.
- the state doesn't care whether or not you leave your keys in the car..
- so if the state writes a statute about not leaving the keys in the car… the state contends kinds
could drive them, or someone could steal your car and hurt themselves or people around them…
- Also, someone committing a crime isn't paying attention to the laws so they endanger the
public.
- so this statue is a statue that intends for the car owner to be responsible for the actions of a third
party…. The statue holds the person responsible who left the keys in the car.
- what is the purpose of the statue --->
- this case is similar to dram shop cases… because there are statues that tell bartenders not to
serve people who are drunk….. So again bars are responsible for the actions of third parties….
Because it is in the interest of the public not to have drunk drivers on the street.

Uhr v. East Greenbush Central School District (199)(P. .240)

Facts: [In the 1992-1993 school year the plaintiff, a pupil in the East Greenbush Central School
District, was screened for scoliosis, but the tests were negative. In the following school year, she
was not so checked. However, in 1995, as a ninth grader, an examination for scoliosis detected
the condition.] Her parents, who are also plaintiffs in this action, then had her examined by an
orthopedic doctor who concluded that her scoliosis had progressed to the point that surgery was
required instead of the braces that often can be utilized when the condition is diagnosed earlier.
The infant [i.e., minor] plaintiff underwent surgery in July 1995. [The plaintiffs then sued both
under Education Law §905 and for common law negligence. The lower courts rejected both
claims.]
Issue: whether the statute authorizes private rights of action?
Rules: Law in NY requires that school authority examine students between 8-16 y/o for scoliosis at least
once each year.
Holding: We agree with the courts below that plaintiffs have failed as a matter of law to state a claim for
common-law negligence. we conclude that a private right of action to enforce Education Law §905(1) is
inconsistent with the statute’s legislative scheme and therefore cannot be fairly implied. Because the
Legislature did not intend that the districts bear the potential liability for a program that benefits a far
wider population. If we are to imply such a right, we must have clear evidence of the Legislature’s
willingness to expose the governmental entity to liability that it might not otherwise incur. The case
before us reveals no such legislative intent.

Fentons version:
Why does the legislature do this = it is an attempt to make sure that students who don't have access to
medical treatment can be seen .
- Also administrative convenience = all the kids are there so why don't we just do it here… its a simple
enough test….
- Our PP gets scoliosis, and sues the school district, on the cause of action of = NEGLIGENCE PER SE.
Presumptive negligence is met.
- is this the kind of statue that should be exported for a cause of action….. NOPE. Because the statue is
intended to protect children, but not to open the school up liability.
- The imposition of the responsibility is to educate the children, so checking for scoliosis is not their main
job. We give them this test because it's convenient , but they are not a hospital, they are supposed to
educate. So this is a statue of convenience in order to catch scoliosis in the least expensive way possible.
Essentially, it's an extra service not a requirement…. So this doesnt work with the imposition of private
responsibility.

- If we understand negligence per se, as violation of a statue as a source of duty. I.e. does the reasonable
school district test kids for scoliosis (see it doesnt even make sense to say this) no because thats not there
job.

---------------
For Hypo 13
Section F. Judge and Jury (244-249)
● Negligence law does more than articulate standards of liability. It also develops a wide range of
legal institutions to apply its basic commands to individual cases.
● Our legal system divides the responsibility for deciding questions of fact between the judge and
the jury.
○ It prevents either the judge or jury taking complete control over the case.
● The total delegation of judicial responsibility to the jury has been rejected on two reasons
○ Juries might abuse the power by deciding cases contrary to established principles of law
○ Unlimited juriy power might undermine the principle of distributive justice (that like
cases should be treated alike, no matter what substantive principles apply).
● One form of Judicial control over the jury is found in the Judge's instructions to a jury, on the
relevant principles of substantive law, at the end of a case
 ● Another form of judicial control over juries is the ability of the court to keep certain facts and
questions from the jury.
● The juries traditional role is to find the facts of the case and then apply the law to those facts. This
is hard in negligence cases because they are a mixed bag of “law and fact.”
● In negligence cases, the task of the jury is 3 as opposed to two.
○ (1) Find the empirical facts
○ (2) determine how much and what kind of care was reasonable given those facts
○ (3) apply the law of negligence to these findings, by deciding whether or not the DD
behaved in accordance with the norm Identified.
● Since Steps (2) and (3) involve a more evaluative approach then then step (1)’s empirical
approach. Steps (2) and (3) are often referred to as “Deciding a mixed question of fact and law.”
- Oliver Wendel Holmes and the common Law (P. 247-249) (1881)
● Basically lays out the steps and why there important for negligence cases
------------ - - -- - - - - - -- - -
RES IPSA: (p.244-273)
Section G. Proof of Negligence:
1. Methods of Proof.
Res Ipsa Loquitur = the Thing speaks for itself.
● In Invoking Res Ipsa Loquitur a PP claims that the jury should infer that negligence from the very
fact that the injury or accident occured.

Fentons Def:
Res ipsa Loquitur is an evidentiary doctrine.
● THe PP has the burden of proof
● THe best defense for Res ipsa:
● The 5 W’s
○ Who
○ What
○ Where
○ Why
○ When
● If we have the 5 W’s then we have evidence, and we could potentially use res ipsa.
● If you have direct evidence then you use it.
● Res ipsa = the thing speaks for itself.
●

Byrne v. Boadle ( 1863) (p. 259)

Issue: Is the burden of Proof for negligence on the DD or The PP?
Rules: Someone in control of something is prima facie responsible for the actions and outcomes of that
thing.
Facts PP was walking down the street when the D'employes were lowering a Barrel of Flour. The Barrel
of Flour via a crane… the barrel fell and permanently maimed the PP’s shoulder. Lower court held that
DD was no evidence of negligence for the Jury, because there is no proof that the DD was the one
lowering it, it could have been a purchaser or something like that. The plaintiff was bound to give
affirmative evidence of negligence. PP appealed to the Court of the Exchequer. Pollock J. said, this
appears to be a case where Res ipsa Loquitur can be applied.
Holdings: Reversed, the fact that the accident occured is sufficient Prima facie evidence of negligence
(Res Ipsa Loquitur) and as such the burden of proof rests on the DD not the PP.

Fentons Version:
● The flour barrel is huge
● The flour barre; was huge and fell on the sidewalk, it fell from the second story.
● There was a sign in front of the building that said “flour” so he thought it was that guy’s fault.
● We only know that the barrel fell out and hit him.
● Rule:
○ (Part 1) Something that doesnt ordinarily occur without t he presence of negligence.
○ (part 2) DD is in exclusive control of the instrumentality.
○ (Part 3) the PP had nothing to do with the instrumentality

■ Careful with parts 2 and 3, because exclusive control does not mean absolute
control, and when we talk about the PP have nothing to do with it does not mean
the PP cannot be uning the item
● Rule = Part 1 + part2 + Part 3.
● The defendant actually chose to say something about exclusive control, he said that it could have
a complete stranger, basically, any random person could have done this.
● The default position is that PP has to show proof of causation.
● The nature of the window here is that there are pulleys and shit to pull shit to the ground
● It is still the owner’s job to be in control of the items in the warehouse
● Bryne v. Boadle ID’s the Smoking out doctrine -- If res ipsa is used effectively then we hold the
DD responsible, If their the party that has access to evidence ---> he has to use it. thus , the
directive evidence is smoked out.
●
------------------------
Historical origins
● This case gave the doctrine of Res ipsa Loquitur its latin tag
● Soon after, Justice Earl supplied one standard account of the doctrine in Scott v. London:
○ If you or your employers manage something and an accident occurs that fails to meet the
reasonable care standard… This is reasonable evidence that, absent explanation from the
defendants, that the accident arose from want of care
● Most courts either apply the prosser test or RTT (p.262)

Wakeland v. London (p. 260)

● The DD’s train struck and killed the PP.
● There is no direct evidece to prove that the DD was
● Is this a good res ipsa case?
 ○ No, because it is not clear that the train operator is in control of the situation because the
PP could have jumped in front of it.
● You have to be cautious about how you get evidence
● The circumstantial evidence doctrine is about evidence, and is easy to manipulate.
● RES IPSA LOQUITUR IS HARD AND CONFUSING.
● THIS IS THE LAST RESORT IFF YOU DON'T HAVE DIRECT EVIDENCE
● When you successfully apply Res Ipsa Loqitor you have created an inference of negligence, so it
has to go to the jury.
● THis is juxtaposition to the Negligence per se which is presumption of negligence.
● Presumption is a done deal.
●

Colmenares Vivas v. Sun Alliance Insurance ( 1986) (p. 265)

Issue: Did the lower err in its decision to dismiss on Directed verdict (meaning that res ipsa loquitur does
not apply)?
Rules: Negligence may be presumed from the mere occurrence of an accident if the accident is
of a kind which ordinarily does not occur in the absence of someone’s negligence, is caused by
an agency or instrumentality within the exclusive control of the defendant, and is not due to any
voluntary action on the part of the plaintiff.
Facts An older couple were at the SJU airport, and they got on the escalator…. Operated by and under the
control of SJU. PP sued Sun Alliance, who is the Liability insurer for the airport's owner and operator.
SUnalliegnece brought third party contractual actions against Westinghouse, based on a maintenance
contract. Lower court held that there was no evidence of negligence and that the doctrine of res ipsa
loquitur which would raise a presumption of negligence did not apply.

Holdings: Yes, Remanded the Direct verdict and Reversed, the court reversed the lower courts directed
Judgment on the grounds res ipsa loquitur does apply, as it meets the three part test under Puerto Rico
law.

Fentons version:
● THe PP was jerked off the escaltor, the couples fell and injured themselves.
● Apply rule: the DD has exclusive control over the maintenance of the escalator.
● The person to sue is Puerto Rico Port authority, they own the escalator.

Benedict v. Eppley Hotel Co. ( Handout 11-14) ()

Case is summarized in case book P.270
Issue:
Rules:
Facts The plaintiff-appellee was injured when a folding chair collapsed after she had been sitting on it for
some 20 or 30 minutes while participating in a bingo game. After the accident it was discovered that the
screws and bolts on one side of the chair were missing
Holdings:
Fentons version:
● There’s is a bingo event from verterns then the screws and bolts of the chair come out and a guy
falls, the event was in a convention center.
● The hotel has exclusive control over the chairs and they are

Ybarra v. Spangard ( 1863) (p. 273-280)

Issue:
Rules:
Facts Ybarra was a patient of dr. spangard, who went in for surgery. Before the surgery for
appendicitis. Ybarra was placed on an operating table against two hard objects that supported his neck
and shoulders while he administered anesthesia. Ybarra woke up to severe pain in his neck and shoulders
that only worsened over time. This pain led to paralysis and loss of function in his right arm. Other
doctors concluded that this was due to trauma from injury to his neck. Ybarra brought suit under res ipsa
loquitur for negligence on the part of the doctors should arise from the fact of his injury. The
doctors argued that where there are several defendants or instrumentalities involved in an
injury-producing act, and the injury cannot actually be traced to any one defendant or
instrumentality, the doctrine of res ipsa loquitur does not apply.
Holdings:

Fentons version:
● Surgical operation
● As long you can join everyone who could have been the person who did i. You can join everyone
● What did this case was join all of the potential tortfeasors….
● Res Ipsa Loquitor
● Expert v. Laytestimony = its hard in practicality
Come back too----- Hypo:
------------

Causation: 354-365
Cause in fact:
1. The “ but for” test
a. But for this x would would have happened
b. Is extra simplistic
c. They believed that there can only be one but for cause
 d. Our burden of proof in generally in civil court is more likely than not
2. Substantial factor test:
a. This acknowledges that there might be more than one cause, and if your cause is
the most prominent we can still but for you.
b. This is one that sometimes gets used with in “proximate cause”
Proximate cause:
1. Foresight test:
a. A forward looking test
b. This is a term of art, it is not the foreseeability test(which is actually not a test it is
a tool).
2. The directness test:
a. looks backwards form the occurrence of the injury
b.

●
●
●

● Cause in fact rubric addresses the sequence of events that the PP claims links the two parties
together
● a tort must be the cause in fact of a particular injury, which means that a specific act
must actually have resulted in injury to another. In its simplest form, cause in fact is
established by evidence that shows that a tortfeasor's act or omission was a necessary
antecedent to the plaintiff's injury.
● Cause in fact is sometimes called “actual cause.” In other words, you must prove that
the defendant actually caused your injuries.

Causation:
The challenging part of causation is that it is speculative.
-

Cause in fact: two test:

- But for the test: Is extra simplistic.
- But for this that would have happened
- Substantial factor test: -(this one is sometimes used for proximate cause)

Proximate cause:
- Foresight test (Forward looking test) its a term of art it is not foreseeability.
- Directness test (

Causation also has the unfortunate thing that sometimes you mess up these two.

Cause in fact:
DD New York Central RR v. Grimstad PP( 1920) (p.355)
Issue:
Rules:
Facts Angell Grimstad (deceased) was employed as a captain on a barge owned by New York Central
R.R. (railroad) (defendant). Elfrieda Grimstad (plaintiff), the wife of the deceased, was on board her
husband’s ship when an accident occurred which caused his death by drowning. A tug boat hit the ship,
and the resulting shock knocked the deceased into the water. He did not know how to swim. Grimstad ran
inside the boat’s cabin to grab a line to throw to him, but when she returned, he had disappeared.
Grimstad brought suit against the railroad on the ground that it negligently failed to equip the barge with
life-preservers and thus caused her husband’s death. At trial, the jury found the railroad was negligent and
the trial court denied the railroad’s motion to dismiss the case. The railroad appealed.

Fentons version:
- the boat company should have provided the life preserver
- but what about the duty, We could use negligence per se here cause there is a statute expressly for this
reason…
- Causation is a form of speculation.
According to fenton this is not a logical case……..
Whenever you attack causation problem, you need to establish a duty and then
establish the breach of the duty:
- Here there was a statue, that this was trying to protect

Zuchowicz v. United States (1920)

Facts:
Patricia Zuchowicz (plaintiff) filled a prescription for the drug Danocrine at the
Naval Hospital pharmacy in Groton, Connecticut. The prescription mistakenly
directed her to take 1600 milligrams of Danocrine per day. This was twice the
maximum recommended daily dosage. After developing primary pulmonary
hypertension (PPH) and other health problems, Mrs. Zuchowicz filed suit against
her physicians and pharmacists, employed by the United States government
(defendant), for negligence. Mrs. Zuchowicz died during the lawsuit, and her
husband, Steven Zuchowicz (plaintiff) continued the suit on his wife’s behalf. At
trial, Zuchowicz’s expert witness, Dr. Matthay, testified he was confident to a
reasonable medical certainty that the Danocrine, and specifically the overdose of
Danocrine given to Mrs. Zuchowicz, caused her PPH. Dr. Matthay did not rule
out all other possible causes of PPH, but given Mrs. Zuchowicz’s relatively
healthy prior medical history, he testified it was extremely likely that her PPH was
drug-induced. The trial court awarded Zuchowicz $1,034,236.02 in damages.

Fentons version:
There are other causes of PPH
- The doctor over prescribed danocrine
- So now, was the over prescription the cause of her PPH.
- in her view the doctor should be held liable, it happened after hse hadtaken that
overdose for as long as she did.
- in fentons view this the over-perscription is what caused the problem.
- REMEMBER TO LOOK UP FROM THE TREES TO LOOK AT THE FOREST
AS A WHOLE.

NOTE CASE: THAT SHE ADORES

HAFT V. LONE PALM (364)

Father and son drowned in the pool, we have a statue saying that the hotel
should have a lifeguard service or signs indicating that the life guards shall not be
provided. So the hotel has a choice. This hotel did not have an assigned
lifeguard.
- We are doing a little res ipsa borrowing on our causal point here…
- we have a statue:
- we don't know what happened, because there is an evidentiary void
- so we cant automatically hold them responsible, since the hotel had breached
the duties of the statue we hold them to the higher standard of duty
- and now we will hold the hotel to higher standard of care

- There is a link between

Herskovits v. Group Health Cooperative of Puget Sound

Facts

Herskovits consulted Group Health Hospital (GHH) (defendant), operated by Group Health Cooperative of Puget
Sound (defendant), complaining of chest pain and coughing. Treating physicians at the GHH took a chest X-ray but
did not perform any other tests. GHH treated Herskovits’s condition with a cough suppressant. Herskovits’s chest
pain and coughing persisted, and he consulted Dr. Jonathan Ostrow for a second medical opinion. Ostrow diagnosed
Herskovits with an advanced form of lung cancer. Herskovits underwent an operation to remove the cancerous lung
but died 20 months later. Herskovits’s wife, as administratrix of his estate (the Estate) (plaintiff), filed a wrongful death
suit against GHH. Ostrow testified for the Estate that had GHH’s physicians detected the cancer, Herskovits’s
possibility of a five-year survival would have been 39 percent. Due to GHH’s failure to detect the cancer, Herskovits’s
chance of survival was reduced to 25 percent. The Estate argued that the reduction in the chance of survival from 39
percent to 25 percent was sufficient evidence to allow a jury to consider the proximate cause issue. GHH argued that
the Estate was unable to produce expert testimony that the delay in Herskovits’s diagnosis “probably” or “more likely
than not” caused his death. The trial court granted GHH’s motion for summary judgment, and the Estate appealed.

Fentons version:

- the cause of injury is the decrease in your chance of survival.

- this case is about:

Kingston v. Chicago & N.W. Ry. Co.

Facts

Kingston (plaintiff) owned a piece of property. A fire was started from sparks
emitted from a locomotive owned by Chicago & N.W. Ry. (railroad) (defendant).
This fire was northeast of Kingston’s property. At the same time, another fire was
started northwest of Kingston’s property. It is unknown who or what started this
fire. Both fires spread, and merged into one fire north of Kingston’s property.
They approached and eventually destroyed the property. Kingston brought suit
against the railroad for negligent destruction of property. The trial court held the
railroad responsible for the full amount of damages and entered judgment for
Kingston. The railroad appealed.

Fentons version:
- Cause of action: Negligently committed action X

Summer v. tice:

Fentons version:

The shotgun shells case

Sindell v. Abbott Labs

Prx. cause.
- is whether or not we can hold you responsible
-trust your gut
- Is nothing more than a mechanism we use to limit the scope of the DD’s liability.
I.e. think of the rock in the pond analogy.
- Law : all of the prx cause is summed up in one principal: you are only liable for the harms within the
risk of your own activity.
-
Bacon, the elements of the common lawes of England

street , Foundations of legal liability

Ryan v. NY centraL RR

Berry v. the Borough of Sugar Notch

Brower v. New York Central and HRR

Wagner v. International ry

In re. Polemis & Furness, Withy and Co,;

Wagon Mound (No. 1)

Palsgraf v. LIRR 444 (1928)

Issue: was the DD liable for the negligent actions that resulted in the PP getting hurt, even if PP getting
hurt was unforeseeable?
Rules: You can only hold a DD liable for harm that is a reasonably foreseeable result of the DD’s
actions.
Facts PP was standing on a platform owned by the DD While she was waiting to catch a train, a
different train bound for another destination stopped at the station. Two men ran to catch the
train as it was moving away from the station. One of the men was carrying a package that,
unbeknownst to anyone on the platform, contained fireworks. The first man jumped aboard the
train safely, but the man with the package had difficulty. Two train employees helped the man
get on the train. However, in the process, the man dropped the package. It fell to the rails and
exploded, causing several scales at the other end of the platform to dislodge and injure PP. PP
brought suit against the railroad for negligence. The trial court granted judgment for Palsgraf,
and the appellate division affirmed.
Holdings: Reversed, because the injuries to the PP were not a reasonably foreseeable consequence. As
the package did not seem to be dangerous, the employees so they couldn't have foreseen that their action
would have lead to palsgraf injuries.

Andrews J.
- uses the directness test to determine that the judgement of the lower courts should be affirmed
Everyone owes the general public the duty of refraining from acts that may unreasonably threaten the safety of others. However,
this is not enough to support a theory of recovery for damages against a negligent defendant. To recover damages, the
defendant’s negligent act must have been the proximate cause of the plaintiff’s injury. This means that there is a natural and
continuous sequence between cause and effect, with few if any intervening causes. In the case of Palsgraf’s injuries, she was
standing on the train platform when the railroad employee negligently dropped the package. But for his dropping the package and
it exploding, Palsgraf would not have been injured. There is thus a natural and continuous sequence of events between dropping
the package and the injury, with no intervening events. The judgment against the railroad should be affirmed.

Fentons version:

- The series of events:

Facts: we are in a train station, there's a women whos waiting for a train on the platform, there is this man running to get on the
train that's departing. Two train employees are trying to help him get on the train. So the man who is trying to get on the train has
a package. (Its not unusually at the time that people wrap theri shit with paper) as the employees are helping him on the train and
he dropped the package and it exploded. No one thought that this package had explosives. Its not like the package was labeled
with explosives. The passenger didn't know that ther ewere explosives in the package, because the Passenger was a courier. This
guy worked for somebody, so nobody knew that there were explosives in the package. SO, Mrs. Palgraf is standing next to the
scales (which are used for weighing cargo (big)) . The package falls on the tracks and through a concussive wave. This was a big
explosion → the tracks are at elast 100 ft. away from the platform. The DD is the railroad company. The cause of action is
negligent handling (or care ) for passengers. or Negligently assisting a passenger to jump on the back of a
train. The employees are acting on behalf on the company. This is negligengece, because the reasonable railway
would know that the if they push a passenger to jump onto amovinig train the passenger could get injured. They
have knowledge of the subsequent conquest of their actions. The RR argument is that it is customary for people to
do this. But Custom is a floor not a cieliong , this is grossly negligent so custom is not a defese. This is the best
argument that our train has. How do

How do we know which test to apply: we apply the directness test when there are intervening facts. If we
want to apply the foresight test we need to see unexpected results.

If we applied the rule from polemis: Once you’ve breached a duty you are responsible for all actions that
arose from the breach.

Foresight test: we start with the breach of the duty, then we look for if the results from the breach are foreseeable
within the ambit of the duty i.e. just make sure

Appellate div:

Analysis the facts using the directness test: After establishing our COA, we start at our breach of duty, and we
go to the harm and work our way back looking for any intervening actions.

We know that we have cause in fact, that is that there is causation, that is our legal causation (proximate
cause)

In this case the passenger is the intervening activity, when he dropped the package.

Breach of duty: We know that our train company breached a duty by helping him onto the train .

They tell us that the intervening acts of the passenger is unrelated to the outcome, because no one would have ever
foreseen this with the explosives, and the duty was not breached because no one would have thought that the duty
was to protect people from explosives. So, because its not within the scope of the original duty, they couldnt have
knon that was was going to happen then there was no way for the DD to curtail hios conduct

Cardozo J.

We have cause in fact: we know her injuries are directly related to what happened there. The question becomes Is
the train liable for Mrs. Plasgraff’s injuries.

Gives us the last of our modification from proximate cause, Cardozo’s Rule: The negligence of breach of duty has to
Violate someone's Right (interest or legal protect interest). Here's how to understand this opinion: When
analyzing duty so far weve only analized consequences to a certain class of people Cardozo adds for us the
question to whom is the duty owed. When we say Mrs. Palsgraff isnt within the ambit of the original duty, The
duty we are referring to is why its not a good idea to push people on a train The reasonable person would think like
they could trip, lose their luggage etc... Mrs. Palsgraff was really far away. So for Mrs. Palsgraff to fall within the
scope. r our DD would have to know that there were explosives in that package then the duty changes and mrs .
palsgraff could have been within the class of people the statue protects…

Andrews, J.
He would hold the DD responsible because they breached a relevant duty that emanates to the general public. The
problem is her criminal law, not tort law. It also misses the part of tort law that expands liability and contracts it. Crim
law has a different philosophy this something closer to negligence in the air

To whom is the duty word? When its an issue you discuss it. When its not then you dont.

Note case: Rat poison kept it in the kitchen, so the DD breaached the duty because he kept it in the
kitchin equate there is the potential that it cul;d explode. Polemis was wrong…. According to fenton…
because no one could have known that the boat would have blown up.

Marshall v. Nugent: (1955) 457

Issue:
May a defendant’s negligent conduct be the proximate cause of injuries occurring to a plaintiff after the
actual negligent conduct?
Rules:
A defendant’s negligent conduct may be the proximate cause of injuries occurring to a plaintiff after the
actual negligent conduct if the risk of those injuries is a foreseeable consequence of the negligent conduct.
Facts
Marshall (plaintiff), were driving on a highway to Marshall's business appointment. A truck owned by
Socony (defendant) cut a corner on the highway and forced Harriman's car off the road. Harriman and
Marshall both exited the car and stood on the highway. The Socony truck driver offered to help Harriman
pull his car back onto the highway. The driver suggested that Harriman and Marshall step around the
truck to warn oncoming cars of the obstacle. Marshall attempted to go and warn the oncoming cars as the
driver had suggested. As Marshall did so, a car driven by Nugent (defendant) was coming over the hill
toward the oil truck. Nugent saw the oil truck blocking his path, and he swerved to avoid it. Nugent
crashed into a guard rail and then hit Marshall, severely injuring him. Marshall brought suit against both
Nugent and Socony. After a trial, the jury returned a verdict in favor of Marshall against Socony for
$25,000, as well as a verdict in favor of Nugent. Socony appealed on the ground that the wrongful
conduct of its truck driver was not the proximate cause of Marshall’s injuries.
Holding:
Yes. A defendant’s negligent conduct may be the proximate cause of injuries occurring to a plaintiff after
the actual negligent conduct if the risk of those injuries is a foreseeable consequence of the negligent
conduct. Even after the primary risks of harm stemming from negligent conduct are over, a defendant
may still be liable for subsequent harm if the risk of the harm is not too remote given the totality of the
circumstances. I

Fentons version:

Facts:

Nugent is not the defendant. Did nougent breach a duty. Nungent didnt breach a duty because he was on a deoslte
curve in NH. Nugent is the cause in fact of marshalls injuries.
The DD is the truck, the breach of duty of the DD is the

The cause of PP injuries are the fact that h

Knowledge is still the key to understanding negligence.

Doctrine of apparent safety: is similar to the doctrine at play here.

Similar to danger invites rescue

Nugnet: are nugents actions superseding actions

When taking an exam:

NEID: 464-479

NIED = its not a surprise that we are dealing with neid after proximate casue. THe primary issue here is proximate
cause…

The question is whether this was foreseeable within the original breach

Mitchell v Rochester Railway. (65) (1896

Issue: Whether DD is liable for NIED that lead to physical miscarrige?
Rules: In order for Prox cause to exist the event must be foreseeable.
Facts
Holdings: Nope, no recovery can be sustained for PP’s injuries sustained by fright occasioned by the
negligence of another PP’s injuries are not foreseeable so therefore she does not fit into this category, her
injuries were the result of unusual circumstances which could not have been reasonably anticipated.

Fenton:

- What happens to the woman in the case? She gets wedged in between

Dillon v. Leg. (468) (1968)

Issue:
Rules:
Facts
Holdings:
Nov. 5th 2020

Intent:

- is not negligence

Negligence = Willful misconduct

Benedict v. Eppley Hotel Co. ( Handout 11-14) ()

Case is summarized in case book P.270
Issue:
Rules:
Facts The plaintiff-appellee was injured when a folding chair collapsed after she had been sitting on it for
some 20 or 30 minutes while participating in a bingo game. After the accident it was discovered that the
screws and bolts on one side of the chair were missing
Holdings:

------ Skipped a bunch of shit

Gratuitous undertakings

Coggs v. bernard (
Issue:
Rules:
Facts
Holdings:
Erie railroad co. v. Stewart:

Issue:
Rules:
Facts Stewart (plaintiff) was an employee of the East Ohio Gas Company. He was sitting in the passenger
seat of a truck driven by one of his fellow employees. The truck approached a railroad crossing owned by
Erie Railroad Co. (Erie) (defendant). Erie typically employed a watchman at this crossing to warn of
oncoming trains, but the watchman was temporarily away from his post. As such, he did not warn of an
approaching train operated by Erie until it was too late. The train struck the truck in which Stewart was
riding, and Stewart suffered injuries. Stewart brought suit against Erie for negligence, and the district
court granted judgment for Stewart. Erie appealed.
Holdings:

Marsalis v. LaSalle (525)

Issue:
Rules:
Facts : cat case
Holdings

Moch Co. v. Rensselaer Water Co . (526)

Issue:
Rules:
Facts : Rensselaer Water Co. (defendant) entered into a contract with the city of
Rensselaer to provide water to the city for sewer flushing, street sprinkling,
service to schools and public buildings, and service to fire hydrants for a term of
years. Water was also to be furnished to private individuals and buildings. During
the contract, a building owned by H.R. Moch Co. (Moch) (plaintiff) caught fire.
The nearby fire hydrant did not possess adequate water to put out the fire, and
the fire spread to Moch’s warehouse and destroyed its goods. Moch brought suit
against the water company alleging negligence, and the trial court granted
judgment for Moch. The appellate court reversed and Moch appealed, alleging
claims for breach of contract, common-law negligence, and breach of a statutory
duty.

Coggs v. bernard (
Case is summarized in case book P.270
Issue:
Rules:
Facts

Coggs v. bernard (
Case is summarized in case book P.270
Issue:
Rules:
Facts