Hovenkamp Torts Fall 2010 | Tort | Intentional Infliction Of Emotional Distress

Hovenkamp INTENTIONAL TORTS Torts in general


Fall 2010

A FULL PRIVATE, CIVIL LAW (TORT) CLAIM MUST HAVE: 1. DUTY 2. BREACH OF DUTY 3. CAUSATION 4. HARM AND REMEDY Assessing four requirements: 1. Duty 2. Breach of duty 3. Causation a. Distinction between tort and criminal case: criminal violations can be violations whether or not they actually cause harm/ tort violations must cause some kind of harm 4. Injury or threatened injury that leads to remedy a. For injury receive damages b. For threatened injury, injunction c. Now, can seek both i. In common law, separate courts and could not file both d. Much of tort law is based on common law rules i. Now there is an enormous increase in the influence of statutes 1. Preemptive Modifications: 2. Non-Preemptive Modifications: Statute that covers the same activity but does so in addition to common law remedies (ie. Civil Right Act) ii. What makes torts complicated is that there are many tort cases that invoke simultaneously tort law with federal or state statutes Rules governing liability for the intentional infliction of harm:



Fall 2010

1. Law often distinguishes between the intent to commit an act that causes harm and the intent to cause the harm itself a. Intentional infliction of harm has traditionally covered a blend of situations b. Law guards against physical harm to person or property, but it also extends protection to affronts to personal dignity and emotional tranquility 5. Once the plaintiff has established her prima facie case for liability, what excuses and justifications are available to the defendant, and what qualifications surround them I. Battery A. Basic Concepts/Definitions 1. An intentional and offensive touching of another without lawful justification. 2. Restatement (Second) §13. Battery: Harmful Conduct An actor is subject to liability to another for battery if a. he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such contact, and b. a harmful contact with the person of the other directly or indirectly results 2. Restatement (Second) §15. What constitutes bodily harm a. Bodily harm is any physical impairment of the condition of another’s body, or physical pain or illness. 3. “Eggshell Skull” Rule/ “Thin Skull” Rule a. Preexisting condition that makes a person more susceptible to injury when one would otherwise not normally be b. The defendant takes the victim as he finds him c. Defendant held liable for resulting harm even if it would not have occurred on normal person without condition (i) Plaintiff should not be held responsible for preexisting condition (ii) It was the defendant who took uninvited action 4. Restatement (Second) § 1. Intent a. A person acts with the intent to produce a consequence if:


TORTS (i) The person acts with the purpose of producing that consequence; or

Fall 2010

(ii) The person acts knowing that the consequence is substantially certain to result B. Requirements 1. Intended Act a. “Plaintiff must show either that the intention was unlawful, or that the defendant is in fault. If the intended act is unlawful, the intention to commit it must necessarily be unlawful…The wrong-doer is liable for all injuries resulting directly from the wrongful act, whether they could or could not have been foreseen by him” (i) PHYSICAL HARMS: Trespass to Person, Land & Chattels: • Vosburg v. Putney: boy kicks classmate and due to previous injury, results in loss use of leg p. 4 b. White v. University of Idaho: defendant touched plaintiff that resulted in the removal of her rib and nerve damage. Defendant claimed he meant no harm, but court nonetheless said that plaintiff stated a valid claim for battery even though the defendant had not meant to either harm or offend her p. 9 (i) Court brushed aside any attempt to incorporate the requirement of offensive intent, noting “we have not previously adopted the Restatement (Second) in Idaho and decline any invitation to do it now” 2. Intended harm a. Foreseeable outcome: Absence of intent to cause harm would not absolve defendant if could foresee the outcome of actions (i) Garratt v. Dailey: boy removes chair out from under arthritic woman knowing she would attempt to sit there and removing the chair would result in her falling on the ground. b. Restatement (Second) §8A: Intent (i) The actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it. 3. Physical harm 4. Transferred Intent a. Talmage v. Smith Rule: A Defendant’s intent to cause physical contact with one party can be considered intent to commit battery against a second party when unreasonable force is used because the Defendant has no right to commit such an act. p. 10

Hovenkamp 5. Battery By Smoke


Fall 2010

a. Shaw v. Brown & Williamson Tobacco Corp. the court held that the intent requirement is not satisfied by Brown and Williamson’s intentional manufacture, marketing, and distribution of Raleigh cigarettes, on the basis that such acts set in motion the inevitable series of events leading to plaintiff Shaw’s injuries. p. 10 C. Offensive Battery 1. Restatement (Second) §18. Battery: Offensive Contact a. An actor is subject to liability to another for battery if (i) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contract, and (ii) an offensive contact with the person of the other directly or indirectly results b. An act which is not done with the intention stated in Subsection (1,a) does not make the actor liable to the other for a mere offensive contact with the other’s person although the act involves an unreasonable risk of inflicting it and, therefore, would be negligent or reckless if the risk threatened bodily harm 2. Restatement (Second) §19. What constitutes offensive contact a. A bodily contact is offensive if it offends a reasonable sense of personal dignity (i) The Restatement notes that knowledge that unpermitted conduct has taken place is not necessary to establish a battery 3. Law of offensive battery is directed to words or actions designed to insult or offend without putting at risk of bodily harm a. Alcorn v. Mitchell: defendant deliberately spat in the face of the plaintiff. (i) Court found defendant’s deliberate spitting in plaintiff’s face with the specific intent to assault or humiliate her amounted to an offensive contact/battery 4. Covers not only cases of direct contact with the plaintiff’s person, but also contact with “anything so closely attached to the plaintiff’s person that it is customarily regarded as part thereof and which is offensive to a reasonable sense of personal dignity” – Restatement §18, comment c a. Non-Harmful Offensive Battery: No requirement that actual harm occur (i) Respublica v. De Longchamps: defendant struck the cane of the French ambassador

Although she claimed she had already been vaccinated. 38 .” 5. this is. Cunard Steamship Co. Restatement (Second) §10A. Requirement of consent in performing medical procedures. it was unlawful. it was unlawful b. Segal p. Consent a. consent will be implied in fact • O’Brien v. Implied consent (i) Where plaintiff’s behavior (overt acts and manifestations of feelings) lead to impression of consent. one of that kind. Williams: defendant doctor performed a surgery on ear that plaintiff did not consent to. a. in which the insult is more to be considered than the actual damage. if it was wrongful. The Scope of Consent: (i) Kennedy v. perhaps. Consensual Defenses: Consensual contact is not battery 1. Skillfully performed surgery resulted in damage to her ear.The court held that her consent barred her cause of action because “if the plaintiff’s behavior was such as to indicate consent . and the circumstances were not such as to justify its performance without consent. If the operation was performed without plaintiff’s consent. p. 37 (ii) Hoofnel v. She consented to surgery on one ear. 35 • Question of whether defendant’s act in performing the operation upon plaintiff was authorized was a question for the jury to determine • If it was unauthorized. Medical Injuries 1. she held up her arm and allowed physician to administer vaccination p. “As to the assault. and.Hovenkamp TORTS Fall 2010 • Court remarked. Willingness in fact that an act or an invasion of an interest shall take place. (i) Mohr v. What constitutes “offensive” is to be determined by the trier of fact Defenses D. but not the one operated on. Parrott If a patient is incapable of giving consent a doctor may use his sound professional judgment to extend the scope of an operation p.: plaintiff immigrant was required to receive vaccination to enter country. 38 c. it was wrongful.

” • Allore v.Y.Hovenkamp TORTS Fall 2010 on her part. whatever her unexpressed feelings may have been . and “substituted judgment” (i) Consent of the parent/guardian is necessary for the operation on a child or incompetent • Law generally protects the guardian’s good faith decision – “substituted judgment”— from any judicial challenge or review (ii) Rationale . 40 Implied consent in emergency – a legal fiction.” b." a. "Medical treatment also will be lawful under the doctrine of implied consent when a medical emergency requires immediate action to preserve the health or life of the patient.In determining whether she consented. the surgeon was justified in his act. Minors. This is true except in cases of emergency where the patient is unconscious and where it is necessary to operate before consent can be obtained. under assumption plaintiff would consent if able. Society of N. justified by the assumption that the plaintiff would have consented to the operation if she could have been asked (iii) Schloendorff v. and a surgeon who performs an operation without his patient's consent commits an assault for which he is liable in damages. making an unauthorized operation a technical assault and battery even if no damage ensues (ii) Exception: Implied consent • Whenever an emergency endangers the life or health of the plaintiff. • The court held “Every human being of adult years and sound mind has a right to determine what shall be done with his own body. he could be guided only by her overt acts and the manifestations of her feelings. Emergency rule (i) Normally a patient has the right to accept or reject medical treatment. incompetents. consent is implied from the circumstances • Is a legal fiction. Hospital p. Flower Hospital p. 40 The Court found that the operation to which the plaintiff did not consent constituted medical battery.

seeking to discontinue artificial life sustaining treatment. Substituted consent for the benefit of others (i) Brophy v. because there was no way to determine the children's intent. Consent is overridden if induced by fraud or nondisclosure of material fact . 2. (ii) Cruzan v. Pesckinski: court held that it did not have the power to permit the removal of one of the incompetent’s kidneys. and require proof that the person would have likely consented if able (iii) Lausier v. Moran p. Director p. but physician-assisted suicide not OK– but States have a right to regulate. his sister. 41 (an incompetent patient’s “right to die a natural death without undue dependence on medical technology” aka: a right to ‘die with dignity. even though the risk of harm to the incompetent was slight • The incompetent’s guardian. 41 (Life support/Physician’s Assisted Suicide) OK not to use extraordinary measures to keep someone alive.’) The issue before the court in Brophy was whether to honor the substituted judgment of the patient’s guardian. the parent may only do so in the minor's best interests. Because no close relationship existed between the twins and Jean Pierre. Bosze p. opposed the operation because it “brought back memories of the concentration camp in Nazi Germany and of medical experiments on unwilling subjects” (iv)Strunk v. 41 Court held the doctrine of substituted judgment inapplicable. the denial of relief was affirmed. who acted on behalf of the incompetent patient. while a parent may consent on a minor's behalf.Hovenkamp TORTS Fall 2010 • Imposing liability for batter would make physicians reluctant to provide needed services to minors and incompetents (iii) Bonner v. Further. when the application was supported by the incompetent’s guardian • The court believed that the incompetent “would have” consented to the operation if he had been able (v) Curran v. New England Sinai Hospital p. 40 Parental consent necessary for operations on children c. extending the law to an incompetent patient in a severe vegetative state. necessary to save the life of his brother. and because the court determined this to be necessary to the children's best interests. and thereby ending his life. Strunk: court applied the doctrine of substituted judgment and allowed a kidney transplant in a similar case. • The court affirmed an individual’s right to decline extraordinary lifesustaining medical treatment.

Courts have generally refused to impose liability for simple negligence when a husband does not “know or have reason to know” 3. 258 (California. (iv)Two exceptions: Physician’s privilege not to disclose • When the patient is unconscious or otherwise incapable of consenting. McPherson: court held that defendant’s conduct was actionable if he intentionally misrepresented or failed to affirmatively disclose his diseased condition to his wife b. Nominal consent is not sufficient unless it can be shown that the person who gave that consent was reasonably well-informed about the risks that attended it b. as measured by • • The incidence of injury and The degree of the harm threatened The alternatives to the treatment. if any.Hovenkamp TORTS Fall 2010 a. Grant p. Doctrine of informed consent a. Canterbury v. would be likely to attach significance to the risk or cluster of risks in deciding whether or not to forego the proposed therapy (ii) Topics demanding a communication of information are: • Inherent and potential hazards of the proposed treatment. in what the physical knows or should know to be the patient’s position. 244 Objective Standard: (i) Risk is material when a reasonable person. Reasonable Person Standard) Objective causation standard (guards against 20/20 hindsight) – reasonable person standard. McPherson v. and Results likely if the patient remains untreated (iii) Cobbs v. and harm from a failure to treat is imminent and outweighs any harm threatened by the proposed treatment • When risk-disclosure poses such a threat of detriment to the patient as to become unfeasible or contraindicated from a medical point of view (v) British Acceptance of Canterbury: . Spence: Physician has a duty to inform patient of all risks that may affect patient’s decision to undergo surgery/procedure p. Informed Consent.

held that the statute precluded the objective standard (i) “The statute having defined the standard of disclosure without required reference to what a prudent patient reasonably would want to know. Gingrich: construing Oregon’s informed consent statute. and to base this information on what risks are to be regarded as significant in the view of the reasonable patient. Boyson p. 252 The scope of a chiropractor’s duty to obtain informed consent is the same as that of a medical doctor Subjective Standard a. Bethlem Royal Hospital p. (vii) Expansion of Informed Consent: • Hannemann v. more respect for doctors than patients. 254 Fall 2010 (vi) British Rejection of Canterbury: • Sidaway v.Hovenkamp • TORTS Burke v. 253 Doctors much more protected in UK – no real duty to disclose • Desire to protect against excessive malpractice claims. 254 in an emergency care setting the practitioner is required to inform the patient of any risks that may be inherent in a proposed treatment and care regime.’” b. we shall not reintroduce that hypothetical prudent patient by the back door of ‘causation. United Bristol Healthcare NHS Trust p. Rhoads: plaintiff sued under an informed consent theory after she suffered adverse consequences from a hysterectomy • The court agreed with Canterbury insofar as it allowed the plaintiff “to establish by lay evidence that the physician did not disclose particular risk information and that he. had no knowledge of the risk” • It also agreed that lay evidence could be used in some cases “to show the adverse consequences following treatment. Arena v. Leeds Health Authority EWCA p. • Pearce v.” • But it broke with Canterbury in requiring expert evidence on complex issues raised by disclosure question (ii) Rule handed in Bly is the dominant view . the patient. Expert Testimony: Patient-plaintiff required to show by qualified medical experts whether and to what extent information should be disclosed by the physician to his patient (i) Majority View: Bly v.

Obligation to Insure Comprehension: (i) Acuna v. he suffered adverse reactions and went into cardiac arrest and died • The court ruled that the manner of method in which a surgeon performs the proposed procedure is not encompassed within the informed consent doctrine e. 257 The court held that protecting the medical profession against vexatious litigation justified both requiring expert testimony and adopting the customary care standard rejected in Canterbury c. 256 physicians also have a duty to fully disclose risks of NON-treatment. even before AIDS widespread. Thomas p. Georgetown University: court ruled that even if plaintiffs could show that the risk of AIDS would have been material to their decision regarding Matthew’s transfusions. Must show that disclosure of significant risks incidental to treatment would have resulted in a decision against it – CAUSATION (i) Kozup v. but was not told about the different placements that could be used. jury found breach of duty to disclose – applies to both benefits and risks. defendant doctor had offered pap smear but failed to explain its importance. Albert Einstein Medical Center: Valles was warned of certain risks associated with the insertion of Permacath. Physician’s Duty to Disclose vs. Turkish p.failure to disclose benefits of treatment is also actionable for negligence. Informed consent applies to the method and manner of surgery and the risks associated therein (i) Valles v. 255 The physician has a duty to disclose but no obligation to insure the patient’s comprehension f. Extending Informed Consent: (i) Truman v. When the Permacath was inserted in his chest vein. • plaintiff's decedent died of cervical cancer at age 30. Quintana p. 255 (strict liability standard for blood banks) Blood banks could be liable for inadequate screening. . plaintiffs must also show that the hospital’s failure to warn of that risk caused the injury involved (ii) United Blood Services v.Hovenkamp (iii) TORTS Minority View: Fall 2010 • Eady v. Lansford p. d.

conduct must be at least reckless (i) Gauvin v. Cincinnati Bengals. willful or with reckless disregard for the safety of the other player so as to cause injury to that player. Athletes consent to the incidental contact which is thought to be the reasonable consequence of participation in the sport a.” b. Private Rights of Action for Statutory Rape: Fall 2010 (i) Barton v.Hovenkamp TORTS a. Inc. even though the defendant could have easily avoided the contact • The court held that “a player is liable for injury in a tort action if his conduct is such that it is either deliberate. To fit within the exception. the same being a question of fact to be decided by a jury. wantonly or recklessly” • The court noted that “personal injury cases arising out of an athletic event must be predicated on reckless disregard for safety” . Clark: defendant hit plaintiff with his hockey stick in his midsection causing serious internal injuries. 46 The court held that as a matter of public policy. Dale Hackbart. Exception: Do not consent to blow that are deliberately illegal (i) Hackbart v. Barnhill: plaintiff goalie sustained severe and permanent injures when kicked in the head inside the penalty area.: Broncos’ defensive back. if she knows the nature and quality of her act. Bee Line p. Athletic Injuries: 1. was injured by an illegal blow that ended his football career • Court ruled that Hackbard could not have consented to such contact that was deliberately illegal • There are rules of the game which prohibit the intentional striking of blows (ii) Nabozny v. Plaintiff should not be compensated for a willing participation in that against which the law sought to protect. A female under the age of 18 has no cause of action for statutory rape against a male with whom she willingly consorts. The deliberate blow had resulted in a major penalty and expulsion from the game under a rule enacted for the protection of players • The court denied recovery after the jury found that Clark had not acted “willfully.

and did not observe the rules and regulations.Hovenkamp TORTS Fall 2010 (ii) Avila v. and accepts them 3. (i) The purpose of licensing this kind of business is to protect participants. Hudson v. Negligent conduct by fellow athletes included in incidental contact that is consented to a.” Intentional beanballs are an inherent risk of the sport. (i) The court held that the distinction between a formal or informal athletic setting was immaterial so long as the children “were engaging in some type of recreational or sports activity” (ii) Reckless or intentional conduct must exist for an action to lie (iii) Marchetti Extended: • Gentry v. at a minimum. Majority View: If there is mutual consent. 43 If the promoter of a boxing exhibition does not comply with the applicable statutes. sued in negligence when injured in a race by the defendant. a. Citrus Community College District p. 2. There was a statutory . both parties can recover from each other for battery. who had violated track rules (i) The could held that while a participant’s “consent” to join in a sporting activity is not a waiver of all rules and infractions. Because public policy is designed to protect participants by making boxing matches illegal without a license. particularly those which result from the customarily accepted method of playing the sport. not increase the risks inherent in the sport. Turcotte v. Fell: plaintiff. “Marchetti is not limited to active participants or to spectators old enough o appreciate the risks inherent with the sport or activity” 4. Kalish: plaintiff and defendant were playing a backyard game when the two colliding breaking the plaintiff’s leg. 50 (young boy is struck in the eye with a nail that another boy is hammering into a board 3 feet away) the court held that the boys were engaged in “recreational activity” for which liability depended on proof of recklessness. professional jockey. nonetheless a professional clearly understands the usual incidents of competition resulting from carelessness. Craft p. did not obtain a license. Craycraft p. Therefore D is liable as matter of public policy. they can be liable for damages for a participant’s injuries. there was no consent (no one can consent to breach of the peace). Voluntary assumption of risk (volenti non fit injuria) by the injured party does not excuse the promoter of liability. Marchetti v. Immaterial whether formal or informal athletic setting a.48 The court held that the defendant school has a duty “to.

Condition/Exception a. it shall be borne by him who occasioned it.” c. as relatives or otherwise. Hart v. in order to be liable. and therefore “it is not necessary to reward the one that got the worst of the encounter at the expense of his more fortunate opponent. tried to take hold of defendant’s hand during a fit. the party that causes the loss should bear the loss.Hovenkamp TORTS Fall 2010 provision that stated that the consent of the parties involved would not relieve the carnival from liability. the court first noted that both fighters had violated the criminal statute. In adopting the minority and Restatement view. charged with the care of defendant insane person. may be under inducement to restrain him and that tortfeasors may not simulate or pretend insanity to defend their wrongful acts causing damage to others. or no action shall arise out of an improper cause E.53 When neither party guilty through intent (re insane). must have been capable of entertaining the same intent and must have entertained it in fact . Gould v. Defendant responded by hitting plaintiff in the head with a chair (i) The court held that defendant was still liable regardless of her mental state (ii) Held that where an insane person by his act does intentional damage to the person or property of another he is liable for that damage in the same circumstances in which a normal person would be held liable b. in which he consented to participate b.” 2. McGuire: (i) The insane person. Almy: plaintiff. and (ii) Ex turpi causa non oritur action. Geysel: plaintiff’s husband was killed by a blow struck in an illegal prizefight. McGuire v. 5. Minority View a. Majority View: An insane person is liable for his torts a. American Family Mutual Insurance p. Insanity is not a defense to an action in tort 1. or the volunteer suffers no wrong. and it has also been held that public policy requires the enforcement of the liability in order that those interested in the estate of the insane person. (i) "Where a loss must be borne by one of two innocent persons. Court then sought to give effect to two basic legal doctrines: (i) Volenti non fit injura.

Restatement §63. Wagner v. Utah p. Restatement §65. although deemed unfit to stand trial. Courvoiser v. not the intention to cause harm. to defend himself against unprivileged harmful or offensive contact or other bodily harm which he reasonably believes that another is about to inflict intentionally upon him (ii) Self-defense is privileged under the conditions stated in Subsection (1). was held responsible for an intentional tort in killing his father-in-law (i) Court did not require that defendant “acted for the purpose of causing. Polmatier v. Russ: paranoid schizophrenic. Self-defense by force not threatening death or serious bodily harm. • by retreating or otherwise giving up a right or privilege. 9 (Mentally impaired man in the custody of state employees attacks plaintiff without reason in line at Kmart) The court held that the battery had in fact been committed because the only required mental state was the intention to make contact with the plaintiff. (i) An actor is privileged to use reasonable force. 54 (jewelry store robbery/ cop accidently shot) In legitimate cases of self-defense. a defendant is not liable for unintentionally harming an innocent third party. A rule imposing liability tends to make those in charge of defendant more watchful and may be supposed to have some interest in his property 4. Self-defense by force threatening death or serious bodily harm. . c. Raymond p. Self-defense universally recognized as a justification for intentionally inflicting harm 1.” or with a “desire to cause the resulting injury” 3. so long as behavior reasonable under circumstances. Rationale: a. or • by complying with a command with which the actor is under no duty to comply or which the other is not privileged to enforce by the means threatened b. Limits in application a. although the actor correctly or reasonably believes that he can avoid the necessity of so defending himself. F.Hovenkamp • TORTS Intent measured objectively Fall 2010 (ii) But the law will not inquire further into mental condition with a view of excusing his act b. not intended or likely to cause death of serious bodily harm.

which can safely be prevented only by the immediate use of such force. or • permitting the other to intrude upon or dispossess him of his dwelling place. (ii) The privilege stated in Subsection (1) exists although the actor correctly or reasonably believes that he can safely avoid the necessity of so defending himself by • retreating if he is attacked within his dwelling place. an actor is privileged to defend himself against another by force intended or likely to cause death or serious bodily harm. f. which is not also the dwelling place of the other. 56 The accidental harming of an innocent bystander by force reasonably intended in self-defense to repel an attack by a third party is not actionable. Who Struck the First Blow? (i) Boston v.Hovenkamp TORTS Fall 2010 (i) Subject to the statement in Subsection (3). and that • he is thereby put in peril of death or serious bodily harm or ravishment. Mistake and Self Defense: (i) Morris v. Muncy p. or • relinquishing the exercise of any right or privilege other than his privilege to prevent intrusion upon or dispossession of his dwelling place or to effect a lawful arrest d. when he reasonably believes that • the other is about to inflict upon him an intentional contact or other bodily harm. Self Defense Interacting with Intent and Negligence: . Platt p. or • abandoning an attempt to effect a lawful arrest (iii) The privilege stated in Subsection (1) does not exist if the actor correctly or reasonably believes that he can with complete safety avoid the necessity of so defending himself by • retreating if attacked in any place other than his dwelling place. 57 (fight over automobile heater sale during WWII) The defendant had the right to exercise and use such reasonable force as may have reasonably appeared to him in good faith to be necessary to protect himself from bodily harm. e. even though he may not have been actually in danger. or in a place which is also the dwelling of the other.

such that the actor. Wounding or Killing in Defense of Property: (i) M’Olovy v. cannot maintain an action for an injury received in consequence of his accidentally treading on the latent wire communicating with the gun. 62 “A trespasser. Use of Mechanical Device Threatening Death or Serious Bodily Injury: (i) An actor is so far privileged to use a device intended or likely to cause serious bodily harm or death for the purpose of protecting his land or chattels from intrusion that he is not liable for the serious bodily harm or death thereby caused to an intruder whose intrusion is. and thereby letting it off. so that intention is deterrence not revenge. Assault . Some kind of warning must be given. although he may be ignorant of the particular sports where they are placed. Bird v. would be privileged to prevent or terminate it by the intentional infliction of such harm. II.” c. it is lawful to oppose force with force. Briney p. Defense of Property: 1.excessive) One cannot booby-trap their property without warning. The Spring Gun Question: (i) Ilott v. having knowledge that there are spring guns in a wood. with the intention of wounding trespassers. but where one enters WITHOUT actual force. Such is the rule even though the injured party is a trespasser and is in violation of the law himself. Cockran p. (i) Would have been OK to set guns from sunset to sunrise for protection while at home.” 2.Hovenkamp TORTS Fall 2010 (i) Brown v. although his entry will be construed a force in law. in fact. 64 In cases of ACTUAL force. Might have been OK if large warning signs were hung b. Restatement (Second) § 85. were he present. 59 (Spring gun set in garden. Holbrook p. Malicious Use of Spring Guns: (i) Katko v. Robishaw p. 63 “One may not use such means of force as will take the qualification that one may not use such means of force as will take the qualification that one may not use such means of force as will take human life or inflict great bodily injury. 58 (The self defense analysis incorporates negligence principles) A party who overreacts to a perceived threat may be held liable in negligence if his actions are unreasonable in light of the circumstances G. there must be a request to depart before the possessor can lay hands upon him and turn him out b. Wilkes p.

Hornbook a. shall recover damages as compensation for the injury. Comment b: Distinction between apprehension and fright (i) It is not necessary that the other believe that the act done by the actor will be effective in inflicting the intended contact upon him (ii) It is enough that he believes that the act is capable of immediately inflicting the contact upon him unless something further occurs (iii) The apprehension which is sufficient to make the actor liable may have no relation to fear. and (ii) the other is thereby put in such imminent apprehension. as if one lifts up his cane. or his fist. What Constitutes Apprehension: a. In order that the other may be put in the apprehension necessary to make the actor liable for an assault. or an imminent apprehension of such a contact. on plaintiff’s person.a) does not make the actor liable to the other for an apprehension caused thereby although the act involves an unreasonable risk of causing it and. though no actual suffering is proved. b.Hovenkamp A. without touching him. the other must believe that the act may result in imminent contact unless prevented from so resulting by the other’s self-defensive action or by his flight or by the intervention of some outside force. An actor is subject to liability to another for assault if (i) he acts intending to cause a harmful or offensive contact with the person of the other or a third person. Threat to inflict some immediate harm. which at least implies a doubt as to whether the actor’s attempt is capable of certain frustration (iv)The Restatement consciously deviates from the common usage of the words (similar in definition) to make the point that the plaintiff has suffered a compensable injury from a threat of attack that is easily warded off 3. An action which is done with the intention stated in Subsection (1. but misses him. would be negligent or reckless if the risk threatened bodily harm 2. Restatement §24. in a threatening manner at another. Definitions 1. or strikes at him. Blackstone. therefore. Assault: TORTS Fall 2010 a. b. . Restatement §21. Commentaries a.” 4. then and there. “Assault is an attempt to offer to beat another.

I. Mere words do not amount to an assault a. although he did not hit her with it (i) The court held that there was “harm” for which she could recover although there was no physical contact 2. noting the absence of an immediate threat . Hannaford: defendant threatened plaintiff with an unloaded gun. Savage: defendant put his hand on his sword and said. Requirements 1. Where words indicate a lack of intent to assault. a. “I’m going to find out where you live and I am going to kick your ass. I would not take such language from you. (i) Brower v.Hovenkamp B.” (i) Court held this was not an assault because there was no intent to commit an assault and where a threat is made in the conditional. de S. W. An actor is subject to liability to another for false imprisonment if The court denied the action. Words must amount to an immediate threat to be considered an assault. False Imprisonment A.: defendant struck tavern door with a hatchet while plaintiff’s wife had head out window. The court rejected defendant’s argument that she could not be guilty of an assault for threatening with an unloaded gun (i) Court held. Apprehension a. Ackerly: plaintiff received phone calls stating. Allen v.” Plaintiff claimed that the spoken threats became assaultive in view of the surrounding circumstances including the fact that the calls were made to his home. there can be no assault 4. de S. TORTS Fall 2010 a. • III. at night. “whether there is an assault depends more upon the apprehensions created in the mind of the person assaulted than upon what may be the secret intentions of the person committing the assault.” 3. creating the impression that the caller was stalking him. Tuberville v. He saw her and struck with the hatchet again. False Imprisonment: 1. if that condition is not present. “If it were not assize-time. not considered an assault. Restatement §35. and Wife v. No physical contact required.

The actor does not become liable for false imprisonment by intentionally preventing another from going in a particular direction in which he has a right or privilege to go. An act which is not done with the intention stated in Subsection (1. Must confine plaintiff to any particular place or location without consent a. the plaintiff “may be said to be confined within the residue of the habitable world. no false imprisonment (i) Bird v. Requirements 1.” must be a boundary and the prisoner must be prevented from passing . If there is a means of escape. his act directly or indirectly results in such confinement of the other. B.Hovenkamp TORTS Fall 2010 a. Comment b a. Whether the area fro which the actor prevents the other from going is so large that it ceases to be confinement with the area and becomes an exclusion from some other area may depend on the circumstances of the particular case and be a matter for the judgment of the court and jury c. and c. Restatement §36. The confinement is complete although there is a reasonable means of escape. he acts intending to confine the other or a third person within boundaries fixed by the actor. What Constitutes Confinement 1. 2. and b. although the act involves an unreasonable risk of imposing it and therefore would be negligent or reckless if the risk threatened bodily harm. the other is conscious of the confinement or is harmed by it.a) does not make the actor liable to the other for a merely transitory or otherwise harmless confinement. Wrongfully excluding the plaintiff from the U. 3. The area within which another is completely confined may be large and need not be stationary b. 85 • In order for it to be a “prison. unless the other knows of it. 4. 2. Jones: court ruled defendant’s blocking of a public highway did not falsely imprison plaintiff.S.” C. To make the actor liable for false imprisonment. in a sense. the other’s confinement within the boundaries fixed by the actor must be complete. would not amount to false imprisonment even though. who wished to pass – not confined if have a means of escape p.

for which plaintiff complied . Must be an intent to confine – general rule a. Consent a. Defenses 1. Sandford: woman was given complete freedom of movement on yacht. entered defendant’s mine for a shift that normally ended at 4pm. Must be reasonable . Weardale Steel: plaintiff. a miner. Herd v. Imprisonment may be justified when necessary to protect defendant’s person and property a. he had no right to call upon the employers to bring him up when he pleased b.” defendant refused (i) The court ruled since the man chose to go to the bottom of the mine under these conditions. ordinary negligence principles tend to take over D. No liability for negligently caused imprisonment (i) Exception: when the plaintiff suffers major physical harm from defendant’s imprisonment. Defendant falsely accused him of shoplifting and detained him for questioning. Exception to consent requirement: (i) Physical power which can be avoided only by submission operates as effectually to constitute an imprisonment • Coblyn v. Inc.Hovenkamp • TORTS Dissent: imprisonment is any restraint of the person by force Fall 2010 .: plaintiff was old man shopping in department store. but not given liberty to roam freely on land p. 87 • She was held to have been imprisoned while on the yacht so long as she was denied access to the shore by a boat 2. Kennedy’s. When he asked to be taken up at 11am due to “unsafe working conditions. that amounts to a false imprisonment within the legal meaning of such term” 2.Finds it ridiculous that “the restraint of a man’s person from doing what he desires ceases to be an imprisonment because he may find some means of escape” (ii) Whittaker v.Court ruled that “if a man is restrained of his personal liberty by a fear of a personal difficulty.

The jury found for the parents and against the deprogrammer (i) Court held that “when parents.” (ii) The court. Modern False Imprisonment Case: a. acting under the conviction that the judgment capacity of their adult child is impaired…limitations upon the child’s mobility do not constitute deprivations of personal liberty sufficient to support a judgment for false imprisonment. Sorlien: plaintiff college student fell under the influence of a cult. The could held their actions constitute unlawful restraint.Hovenkamp TORTS Fall 2010 (i) Sindle v. Parental control and discipline is generally regarded as a defense a. New York City Transit: defendant operated a school bus carrying junior high school students. reasonable under the circumstances and in time and manner. man is so upset he has heart attack. worship. Inc • Psychological and physical intimidation can create false imprisonment even with consent. and access to health care. When students became particularly rowdy. Peterson v. detention. imposed for the purpose of preventing another from inflicting personal injuries or interfering with or damaging real or personal property in one’s lawful possession or custody is not unlawful. Kennedy’s. • Plaintiff man (70-yrs-old) bought item somewhere else. Intentional Infliction of Emotional or Mental Distress A. privacy. She sued her parents and deprogrammer for false imprisonment. however. intimidating men coerce him into (willingly) going with them. communications. or their agents. 1. defendant abandoned his route and drove to a police station • Court ruled that where “restraint or detention. warning of the “threat” posed to public order and refusing to “endorse self-help as a preferred alternative” 2.” (ii) Coblyn v. Outrageous Conduct Causing Severe Emotional Distress . including plaintiff. Restatement §46. store security thought he stole it from them. John Pickle Co p. 92 Defendants restricted the plaintiff’s (workers brought over from India) movement. IV. man did not steal item (no reasonable grounds to believe he did). or confinement. Chellen v. refused to grant the same protection for the deprogrammer.

Except as stated in §§21-34. where it would not be so if he did not know B. indignities. Act: Extreme and outrageous conduct 2. Liability clearly does not extend to mere insults. annoyances petty oppressions. to any other person who is present at the time. a. Comment f. Intent a. Restatement §47. to a member of such person’s immediate family who is present at the time. and in §46. Comment d.Hovenkamp TORTS Fall 2010 1. and if bodily harm to the other results from it. or b. conduct which is tortious because intended to result in bodily harm to another or in the invasion of any other of his legally protected interests does not make the actor liable for an emotional distress which is the only legal consequence of his conduct. threats. for such bodily harm. the actor is subject to liability if he intentionally or recklessly causes severe emotional distress a. Recklessness 3. and outrageous when the actor proceeds in the face of such knowledge. Where such conduct is directed at a third person. by reason of some physical or mental condition or peculiarity (i) Conduct may become heartless. One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress. Causation . a. Conduct Intended to Invade Other Interests But Causing Emotional Distress 1. whether or not such distress results in bodily harm. The extreme and outrageous character of the conduct may arise from the actor’s knowledge that the other is peculiarly susceptible to emotional distress. Demonstrated by behavior that is so obnoxious rude and gratuitously cruel as to go beyond all possible bounds of decency b. 2. 3. Requirements 1. flagrant. if such distress results in bodily harm. Injury 4. or other trivialities 4. C.

her mother-in-law. Outrageous professional conduct a. Jordan Marsh Co.: defendant’s meter reader tried to force his way in through the front door of plaintiff’s apartment while plaintiff was pregnant and at risk for a miscarriage. Rockhill v. Downtown: defendant initiated practical joke in which he falsely told plaintiff that her husband was terribly injured in an accident. Wilkinson v. Laclede Gaslight Co. Siliznoff: defendant threatened to beat up plaintiff. He had several nasty exchanges with plaintiff which resulted in her suffering chills and a miscarriage the next day. and proximately in consequence of his wrong 3. Bill collection a.: as a result of defendant’s bill collection calls. necessarily. in the absence of any privilege. Cases 1. George v. Bouillon v.Hovenkamp D. Pollard: plaintiff. and her 10-month-old daughter were all seriously injured in an auto accident. (i) The court allowed plaintiff’s cause of action (ii) Held that trespasser is liable to respond in damages for such inures as may result naturally. Strong Arm Tactics: State Rubbish Collectors Association v. Extreme and outrageous conduct TORTS Fall 2010 a. destroy his property. producing vomiting and weeks of suffering and incapacity (i) The court found that the defendant had (1) willfully done act (2) calculated to cause physical harm to plaintiff. The defendant physician did not examine either . the plaintiff suffered two heart attacks (i) The court upheld the sufficiency of her claim for emotional distress under Restatement §46 4. which in fact resulted in (3) injury (4) caused by defendant’s conduct b. intentionally subjects another to mental suffering incident to serious threats to his physical well-being. Parasitic damages a. directly. and put him out of business unless he agreed to pay the association part of the proceeds from the Acme account (i) The court concluded that a cause of action was established “when it is shown that one. whether or not the threats are made under such circumstances as t constitute a technical assault” 2. Plaintiff experienced a violent shock to her nervous system.

in extremely lewd depictions of public religious figures. which it failed to do in a proper manner) The court found that the government acted in deliberate disregard of a high probability that its actions would cause the Trentadues emotional distress. McLean Credit Union: plaintiff alleged that her supervisor engaged in racially motivated harassment by “staring” at her. 8. noting it was appropriate to consider the special duties that physicians owed their patients (ii) Defendant was found to have willfully or recklessly failed to perform that duty 5. its obstinance concerning authorization for an autopsy and its failure to inform the family of the body’s battered condition. Falwell p. Constitutional Overtones to Protect Freedom of Speech a. 98 (The Bureau of Prisons was responsible for returning the body of Trentadue to his next of kin after he was found dead in his cell. Forklift Systems p. p. Patterson v. he ordered the women to wait outside in the freezing rain until the plaintiff’s husband arrived (i) The court found that the evidence supported a finding of conduct outrageous in the extreme. (i) The governments actions consisted of its initial nondisclosure of the unusual circumstances of death. U. Harris v. and by telling her that blacks were known to work “slower than” whites (i) The court ruled that these allegations “fell short” of the stringent requirements of North Carolina law (ii) Also raised civil rights claims that were struck down by the Supreme Court 7. 99 Plaintiff woman allowed mental distress damages for sexual harassment allowed under Title VII – employment discrimination.) . (i) Desire for political free speech overrides mental distress and defamation Damages. Collateral Claims: a. Racial insults a. Hustler Magazine v. by assigning her too many tasks. Estate of Trentadue v. (No defamation – there was a disclaimer. 99 Constitutional concerns for free speech override mental distress in parody of public figures. 6.Hovenkamp TORTS Fall 2010 seriously wounded women and despite the young daughter’s vomiting. by making her do sweeping and dusting jobs not assigned to whites. Dead Bodies: a.S.



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(ii) Defamation: the act of making untrue statements about another which damages his/her reputation. If the defamatory statement is printed or broadcast over the media it is libel and, if only oral, it is slander. V. Sexual Harassment Ayers v. Food & Drink, Inc. Iowa Civil Rights Act Claims A. Hostile Work Environment 1. Maintenance of a sexually hostile work environment is a form of illegal sex discrimination 2. To establish a hostile work environment claim, a plaintiff must show a. The plaintiff belongs to a protected class; b. The plaintiff was subject to unwelcome sexual harassment; c. The harassment was based upon sex; d. The harassment affected a term, condition or privilege of employment, and; e. The employer knew or should have known of the harassment and failed to take prompt and appropriate remedial action B. Constructive Discharge 1. To establish a claim for constructive discharge, a plaintiff must show a. The employer deliberately created intolerable working conditions b. With the intention of forcing the plaintiff out (i) The intent requirement is satisfied by demonstrating the plaintiff’s quitting was a reasonably foreseeable consequence of the employer’s discriminatory actions (ii) The plaintiff must establish that “a reasonable person in her situation would find the working conditions intolerable” 2. An employee claiming constructive discharge has an obligation to give the employer a chance to address a problem before quitting C. Retaliation



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1. Iowa Civil Rights Act makes it illegal “to discriminate or retaliate against another person in any of the rights protected against discrimination…because such person has lawfully opposed any practice forbidden under this chapter.” 2. A prima facie case of retaliation consists of the following elements a. The plaintiff was engaged in a statutorily protected activity VI. Intentional Abuses of the Marketplace A. Fraud and other Claims Related to Misrepresentation 1. Common Law Deceit a. Deliberate lying required. (i) Palsey v. Freeman: held that an action for deceit lay against defendant for false statements about third party’s financial records that induced plaintiff to sell the third party a large amount of goods on credit, even in the absence of collusion or back channel connection between the defendant and third party p. 1196 • By placing the initial emphasis on the detriment to plaintiff as opposed to the benefit to defendant, this case brought fraud to tort law 2. Negligence on the part of the plaintiff in failing to discover the falsity of a statement is no defense when the misrepresentation is intentional a. Skowronski v. Sachs p. 1202 (Jeweler certified an inferior diamond as a stone of higher grade when he had no knowledge of the proper procedures required of an expert in that area) the court found that the misrepresentations were reckless, and hence fraudulent, when the defendant did not disclose his want of expertise 3. Restatement (Second) §525. Liability for Fraudulent Misrepresentation a. One who fraudulently makes a misrepresentation of face, opinion, intention or law for the purpose of inducing another to act or refrain from action in reliance upon it, is subject to liability to the other in deceit for pecuniary loss caused to him by his justifiable reliance upon the misrepresentation. (i) This restatement provision marks more of a refinement of the law of fraud rather than a fundamental change 4. An Action for Deceit: a. Derry v. Peek p. 1200 Misrepresentation, alone, is not sufficient to prove deceit. (i) There is a difference between making a statement careless if it be true or false and therefore without any real belief in its truth and making, through want of care, a false statement, which is nevertheless honestly believed to be true



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b. Neurosurgery & Spine Surgery S.C. v. Goldman p. 1202 The court relied heavily on Derry when it declined to extend the tort of fraudulent misrepresentation to encompass noncommercial and nonfinancial dealing between parties c. In Re Acosta p. 1202 “An intent to deceive may be inferred from reckless disregard for the truth or falsity of a statement combined with the sheer magnitude of the resultant misrepresentation” (i) HOWEVER an honest belief, even if unreasonable, that a representation is true and that the speaker has information to justify it does not amount to intent to deceive 5. Securities Fraud Today: a. Ernst & Ernst v. Hochfelder p. 1203 A private cause of action for damages will not lie under in the absence of any allegation of "scienter," i.e., intent to deceive, manipulate, or defraud on the defendant's part. 6. Private Securities Litigation Reform Act of 1995: a. The Wharf (Holdings) Limited v. United International Holdings p. 1204 The court held that the defendant had engaged in manipulative and deceptive behavior when it sold an oral option to buy stock with the contemporaneous secret intention of never honoring its terms (an oral option is covered by the act) 7. Rule of Nondisclosure a. Swinton v. Whitinsville Savings Bank: defendant did not disclose that house sold to plaintiff was infested with termites p. 1209 (i) the court held that there is no affirmative duty of a seller to disclose known, yet latent defects in the object of a sale when there has been no request to do so – no duty rule • the no-duty rule has eroded in recent years

• caveat emptor: “buyer beware” – up to the buyer to find relevant information regarding purchase b. Bortz v. Noon: (i) Brokers escape liability for innocent representation “where the agent had no reason to know that her statement was false, and the agent had no duty to verify the accuracy of the third party report.” c. Rejecting Swinton: (i) Obde v. Schlemeyer p. 1210


TORTS d. Fraudulent Nondisclosure:

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(i) Croyle v. Muses p. 1210 “Where there are concealed defects in demised premises, dangerous to the property, health, or life of the tenant, which defects are known to the landlord when the lease is made, but unknown to the tentant, and which a careful examination on his part would not disclose, it is the landlord’s duty to disclose them” (ii) Osborn v. Gene Teague Chevrolet p. 1210 the court held that the defendant used car dealer was guilty of fraud when he set back the odometer even though he made no verbal misrepresentations e. Exceptions (i) Disclosure of “facts basic to the transaction, if the defendant knows that the other is about to enter into it under a mistake as to them, and that the other, because of the relationship between them, the customs of the trade or other objective circumstances, would reasonably expect a disclosure of those facts” • Restatement (Second) Torts §551

(ii) In reliance on §551, the duty to disclose has also been imposed with respect to conditions external to the property sold • Stawn v. Canuso: the defendant developer and broker did not disclose that the new home they sold to plaintiff was located near a closed landfill site that contained my toxic waste substances - Court held that “a builder-developer of residential real estate or a broker representing it is not only liable to a purchaser for affirmative and intentional misrepresentation, but is also liable for nondisclosure of off-site physical conditions known to it and unknown and not readily observable by the buyer if the existence of those conditions is of sufficient materiality to affect the habitability, use, or enjoyment of property and, therefore, render the property substantially less desirable or valuable to the objectively reasonable buyer.” • Hannah v. Sibcy Kline Realtors p. 1211 The court held that the defendant broker, who had constantly evaded plaintiff’s insistent request for information on the racial diversity of the neighborhood in which they bough their home, owed no duty “to inform a client whether a neighborhood was ethnically diverse or to direct the client to resources concerning this information…the reason for the cautious attitude was that such comments could be misconstrued so as to result in claims that the agent had violated the Fair Housing Act” 8. Buyers are under no duty to disclose

1213 • The court held that the plaintiff’s legal claim was barred because he “made no inquiries of the defendant or of other officers of the company” .Generally. v.Hovenkamp TORTS Fall 2010 a. Inc. Liebold p. to make full disclosure. at which point the risk of imposition is greater. even if their transactions will be “closely scrutinized” when the director seeks out a shareholder for a personalized transaction. (i) Goodwin v. Rhone-Poulenc. defendant asked whether plaintiff knew of any information that would affect the price of tobacco. He contracted to buy tobacco from defendant. One who voluntarily elects to make a partial disclosure is deemed to have assumed a duty to tell the whole truth. Insider Trading a. Common Law: directors of public corporations with insider information owe no fiduciary duty when they trade with shareholders over the public exchanges. Partial disclosures are not allowed a. p. Plaintiff sought to rescind the sale on the ground that the defendants did not disclose that they had received reports affecting their decision to buy p. Organ: plaintiff learned that peace had been declared in the War of 1812 before the information had been made public. The nondisclosure of a material fact may be made by the buyer who happens to have superior information about the subject matter of the contract (i) Laidlaw v. 1211 b. Inc. and before the sale was completed. 1213 The land developer who takes an option on farmland in trying to assemble a large parcel of land from several buyers for a major real estate development is normally under no duty to disclose the purpose of his venture and may even act in a manner calculated to persuade his seller that he is in fact only interested in the farmland for its own sake • FURTHER-. the purchaser of farmland need not disclose that he is buying it because he believes that it contains oil 9. Agassiz: defendants were directors of a corporation that purchased shares over the Boston Exchange from plaintiff. When the peace was announced the price of tobacco increased rapidly p. even though the speaker was under no duty to make the partial disclosure in the first place (i) Union Pacific Resources Group. Defendant who has led the plaintiff to believe in a certain state of affairs is under a duty to update that information to correct any earlier misimpressions 10. 1212 • The court held that plaintiff had no duty to disclose his information to defendant (ii) Guaranty Safe Deposit & Trust v.

which (2) defendant knew to be false or made not caring whether false. if he knows that the other is about to enter into it under a mistake as to them. Texas Gulf Sulfur Co. Restatement (Second) § 549. Measure of Damages for Fraudulent Misrepresentation: (i) The recipient of a fraudulent misrepresentation is entitled to recover as damages in an action of deceit against the maker the pecuniary loss to him of which the misrepresentation is a legal cause. the customs of the trade or other objective circumstances. 1215 • Adopted a subjective standard in identifying causation. Causation in Fraud Cases: a. Restatement §551(e) (i) Facts basic to the transaction.Hovenkamp TORTS Fall 2010 b. must be a (1) false statement of facts. because of the relationship between them. whether actually caused plaintiff to act in this particular circumstance (ii) This case would be considered wrongly decided today • Today an objective standard is used to measure causation – whether would have caused a reasonable person to act . including • The difference between the value of what he has received in the transaction and its purchase price or other value given for it. 1214 d. and (4) plaintiff sustained damage because of it. and that the other.: p. Fitzmaurice: court held that defendant was not liable for deceit even though lied in prospectus to plaintiff p.Can infer reliance or causation from the fact that a reasonable and prudent person would not have purchased had the information been known – fraud on the market theory c. For action in deceit. (i) Edgington v. Today the federal regulations of insider trading under the Securities and Exchange Acts requires directors to make public disclosures before they trade on inside information (i) SEC v. would reasonably expect a disclosure of those facts 11. and • Pecuniary loss suffered otherwise as a consequence of the recipient’s reliance upon the misrepresentation (ii) The recipient of a fraudulent misrepresentation in a business transaction is also entitled to recover additional damages sufficient to give him the benefit of his . that (3) caused plaintiff to act or materially contributed to his acting.

objective requirement that the defendant’s misrepresentation be of a “material” fact for the plaintiff’s reliance to be justifiable c. or (ii) The maker of the representation knows or has reason to know that its recipient regards or is likely to regard the matter as important in determining his choice of action. 1220 (ii) Proof of Loss Causation in Securities Actions: . Inc. v. Proving reliance in fraud cases forces courts to decide whether an objective or subject standard of evaluation should be used to determine whether the plaintiff’s reliance was in fact “justifiable” b. TSC Industries.Hovenkamp TORTS Fall 2010 contract with the maker.” p. 1219 e. Most courts impose an additional. but to the increment in value they would have enjoyed if the land actually was as it was represented 12. Northway. Materiality in Fraud cases a. Inc.” p. Restatement (Second) §538: A matter is regarded as material if one of two conditions is satisfied (i) A reasonable man would attach importance to its existence or nonexistence in determining his choice of action in the transaction in question. 1219 (i) Approved using the “fraud on the market” theory in federal securities cases • Held that the fraud on the market theory created a rebuttable presumption of reliance f. if these damages are proved with reasonable certainty. although a reasonable man would not so regard it d. Shirley p. 1218 (a fraud case that gave the plaintiff the benefit of the bargain) The buyers of land were not entitled to just their money back. (NOTE: 549(2) is not often brought into play) b. Speiser: “Misleading statements will defraud purchase of stock even if the purchasers do not directly rely on the misstatements…The causal connection between the defendants’ fraud and the plaintiff’s purchase of stock in such a case is no less significant than in a case of direct reliance on misrepresentation.: court held that “an omitted fact is material if there is a substantial likelihood that a reasonable shareholder would consider it important in deciding how to vote. Basic. v. Selman v. Fraud on the market (i) Peil v. Inc. Levinson: “materiality ‘will depend at any given time upon a balancing of both the indicated probability that the event will occur and the anticipated magnitude of the event in light of the totality of the company activities” p.

1221 (The defendant overstated the number of cable lines it added in its 2001 quarterly announcements because of a glitch in its computer system.If a person both buys and sells shares in the firm before the fraud is unmasked.But if an open-market purchase is made before the fraud is discovered. before the firm went bankrupt in the midst of a general downturn in the cable market) . Broudo p. we require proof that the misstatement actually moved the market.” (iii) Damages under a fraud on the market theory • Take the simple case in which a company places false statements in its prospectus in order to increase the price it can obtain for a new offering of its publicly traded stock . .In many cases. by statistical techniques) sets the level of the damages suffered by these share purchasers.Hovenkamp TORTS Fall 2010 • Dura Pharmaceuticals v. 1220 the court refused plaintiff’s invitation to state a securities claim simply by alleging in the complaint and subsequently establishing that “the price” of the security “on the date of purchase was inflated because of the misrepresentation” . Allegiance Telecom p. before the merits). ordinarily damages should not be allowed . many ignorant buyers or sellers profit incidentally from the defendant’s fraud . with difficulty. and the sale is made after the market breaks. even at the state of classcertification (that is. then the downward adjustment in the share price (measurable. Contributory Negligence in Fraud Cases: . but issued corrective statements thereafter. the courts now require more than proof of a material misstatement.Those allegations were insufficient because they did not account for the circumstances between purchase and sale • Oscar Private Equity Investments v.The Fraud on the market theory charges the buyer’s losses to the issuer while ignoring the seller’s gains (a) The theory may in effect overdeter fraud by overstating the social losses that it causes (b) One possible escape: set damages equal to the gains that the fraudulent defendant obtained from the fraud g.In dealing with loss causation. however.

Lumley v. “if the persuasion be used for the indirect purpose of injuring the plaintiff. A person who wrongfully and maliciously interrupts the relation subsisting between master and servant (knowing of the contract) by procuring the servant to depart from the master’s service. 1243 (i) A narrower version remains the law that is recognized in the Restatement (ii) Always an underlying question of “how far to push the point” • Limiting free-will • If force to work. The defendant’s conduct is actionable even if the contract between the plaintiff and the defendant is terminable at the will of either party 4. Printers II Inc. Cronin p. p. Inducement of Breach of Contract 1. in violation of 13th Amendment abolishing “involuntary servitude” (iii) Efficient breach of contract: should permit contract holder to break if someone holds employment at a higher value c. or even have knowledge of the covenant in the employee’s previous contract. Temperton v. Gye: defendant held liable for maliciously causing an opera singer to breach her contract with plaintiff p.Hovenkamp TORTS Fall 2010 (i) Seeger v. Walker v. not to . Russell: inducement of breach of contract was held to reach interference with an ordinary contract for the sale of goods. Odell Negligence on the part of the plaintiff in failing to discover the falsity of a statement is no defense when the misrepresentation was intentional rather than negligent B. it is a malicious act” d. whereby the master is injured. Bowen v. Harris v. 1249 “A new employer need not actively induce an employee to quit her job. 2. Fowler v. here in the context of a labor dispute. Hall: court held that malice was the gist of the tort and noted that although “mere persuasion” was not actionable. that person commits a wrongful act for which he is responsible at law a. 1249 a. Perl p. Master servant: where a part has contracted to give his personal services for a certain time to another b. or of benefiting the defendant at the expense of the plaintiff. The inducement action is allowed even if the contract between the plaintiff and third party is voidable or unenforceable 3. 1249 a.

and not his ordinary job performance 7. Inc. Casson: p. The tort in general will not lie when the underlying contract is void (i) Example: gambling contracts in violation of public policy b. The question is rather whether.: court held that the conduct was actionable because it was motivated by “malice. Werner Enterprises Inc. by dissatisfaction with his role in the dealers organization. when it hires her.” 5. CRST Van Expedited Inc v. (i) Brimelow v. p. even when the third party induced the termination by offering its services at a lower price. Limits a. the new employer nevertheless engages the employee to work for him in an activity that would mean violation of the contract not to compete. Designed to protect contracts for the sale of labor by preventing others from subsequently acquiring the labor for themselves. upon learning of the restrictive covenant. in light of “a privilege of interference within the bounds of proper and legitimate business competition” (ii) NBT Bancorp Inc. 1249 The inducement of breach of contract case does not require that the defendant use illegal means to disrupt plaintiff’s contractual relationship with its employees 6. Rationale a. in order to incur liability for tortious interference with that covenant. Strong public interest in competition (i) Independent contractors who are dismissed pursuant to contractual stipulations cannot sue their replacements for inducement of breach of contract.” that is. Fleet/Norstar Financial Group. Ford Motor Co. Privileged Inducements: a. once they know it has been committed to another 8. court held that the disappointed bidder in a corporate takeover contest had no action against its successful rival (iii) Exception: specialized situations inducing the termination of an at-will arrangement could create liability • Smith v. v.Hovenkamp TORTS Fall 2010 compete with their former employer. Interference has been held privileged when done in order to further public morals. 1251 The privilege was upheld when the plaintiff was alleged to have employed chorus girls on such unfavorable terms that they had to resort to prostitution to earn enough money to live .

Boss dismissed them but they were under an employee at will contract) An act lawful in itself is not converted by a malicious or bad motive into an unlawful act so as to make the doer of the act liable to a civil action (ii) Quinn v. However. if unattended by circumstances of dishonesty. Gow & Co. b. however severe and egotistical. Mogul Steamship Co. Rossier p. Unfair Competition 1. and liability in tort follows. and Quinn. which consisted in the intention to cause harm to others. the corporation and the contracting party. molestation. 1267 (Defendant lowered prices and offered incentive in an attempt to drive Plaintiff from the market. The three major cases attempting to define the limits of fair competition at common law (i) Allen v. Flood p. but as acting pursuant to a “confidential arrangement” between parties (i) Imperial Ice Co v. One privilege allows the officer or lawyer of a firm to advise the firm to breach an existing contract. Malice in Unfair Competition: . The officer or lawyer is not treated as an independent third party acting for economic advantage. they are no longer acting as agents of the corporation and can be personally liable for their acts. a.” • Jones v. when an officer or director acts beyond the scope of their qualified privilege. p. 1251 c. McGregor.Hovenkamp TORTS Fall 2010 b. The English Trilogy: Mogul. Ross-Simmons HardWood Lumber Co. there can be no tortious interference because only two parties exist. 1273 (conspiracy to injure) The court held that there was a "conspiracy to injure". or such illegalities gives rise to no cause of action at common law. but if it is two or more. (i) “When acting as an agent within the scope of the qualified privilege. 1251 C. Predatory Pricing (i) Weyerhaeuser v.) Competition. Leathem p. Lake Park Care Center This principle was applied against the husband and wife couple who were the sole shareholders of a small day care center p. intimidation. however. It is perfectly lawful for one person acting alone to attempt this. is NOT absolute. then it suddenly becomes unlawful. 1273 the court held that the defendant had not engaged in unfair trade practices by using its dominant position in the market to drive up the prices to levels that severely reduced or eliminated the profit margins of the competition. The privilege. 1273 (ironworkers told boss they would walk off the job if they didn’t dismiss the shipwrights. Allen. p. c. v.

Mosler Safe Co. b. v. Associated Press p.) a. 4. Motorola p. even when the commodity in question is not "owned" by anyone (like the news). International News Service v. and (3) the threat to the very existence of the product or service provided by the plaintiff. p. v.Hovenkamp TORTS Fall 2010 (i) Tuttle v. 1284 (Defendant sent NBA scores and information to subscribers via a handheld pager. (2) the free riding by a defendant. Elements that allow a “hot-news” claim to survive preemption are: (1) the time-sensitive value of factual information. 1282 A man's property is limited to the chattels which embody his invention. Limits of International News Service (i) Cheney Bros. p. The National Basketball Association v. but have to be treated "as if" they were. when the news has commercial value. Product Disparagement: (i) With disparagement the defendant asserts that the plaintiff’s product is worse than it really is. Doris Silk Corp. 1275 (defendant maliciously tried to run plaintiff out of barbering business) The court held that the wholly malicious conduct of the defendant overstepped the proper bounds of fair competition 2. 3. 1276 "Quasi-property rights" may be invoked to protect against unfair competition by competitors. The Lanham Act (i) The intent of this Act is to regulate commerce within the control of Congress by making actionable the deceptive and misleading use of marks in such commerce and to protect persons engaged in such commerce against unfair competition. Godfrey b. Ely-Norris Safe Co." (i) Quasi refers to things and actions which are not exactly or fully what they might appear. The Harmonica Man v. Buck p. it becomes "quasi-property. More specifically.” (ii) Provides protection for both common law and statutory trademarks (iii) NOTE: The Ely-Norris’s requirement that the plaintiff establish actual harm has survived in federal trademark litigation . 1290 a. so as to induce consumers to purchase other products Tex Smith. Only a narrow “hot-news” misappropriation claim survives preemption for actions concerning material within the realm of copyright. Others may imitate these at their pleasure.

v. The mere likelihood of harm was insufficient. e. • “A second hand market is unlikely to operate efficiently if sellers who specialize in serving it cannot use “beanies” to identify their business. New America Publishing p. 1297 the court held that federal patent law does not preempt state trade secret law • The protection granted trade secrets includes prohibitions against disclosure or unauthorized use by those in whom the secret is confided under restriction against disclosure and against industrial espionage. v.” d. but also forbids independent creation. Protection goes not only to copying the subject matter. so that to forbid it to use “beanies” in its business name and advertising is like forbidding a used car dealer who specializes in selling Chevrolets to mention the name in his advertising. Pink Panther Patrol p. p. Secret Catalogue: Held that a plaintiff could only recover on proof of actual economic harm (loss of business). Perryman (Beanie Baby Case) The court held that the plaintiff (beanie babies) did not have any action for trademark infringement against the defendant’s derivative use of the name (bargainbeanies. D.Hovenkamp TORTS Fall 2010 • Mosley v.” p. 1296 (iii) Kewanee Oil Co. Tradename Protection: (i) New Kids on the Block v. Trademark Protection: (i) MGM-Pathe Communications v.: “To allow a State by use of its law of unfair competition to prevent the copying of an article which represents too slight an advance to be patented would be to permit the State to block off from the public something which federal law has said belongs to the public.com). Stiffel Co. Roebuck & Co. Bicron Corp. Patent protection requires novelty. Federal Preemption of State Unfair Competition Laws: Un-patentable Designs: (i) Erie R. Perryman’s principal merchandise is beanie babies. utility. and grants a 17-year right of exclusion. 1293 c. v. Commercial Trespass . v. Inc. and nonobviousness. Tompkins: held that federal judges could not fashion a “general” federal common law under their general diversity jurisdiction (ii) Sears. 1294 (ii) Ty. p. 1294 (Two newspapers ran polls asking callers to say which of the 5 new kids was the hottest) The court held that the defendant’s use of their trademark name was a privileged nominative because there was no other conceivable way in which any newspaper could otherwise refer to the group in order to get their reader’ opinions about it.R.

which collective activity could well cause injury to eBay's computers by placing an excessive load on the system. The fact that eBay's site is publicly accessible did not alter this conclusion because EBay does not permit the public to engage in the type of automated access conducted by BE without express permission. Hamidi p. b." This in turn would injure eBay's goodwill with its customers. a standard eBay clearly met given BE's repeated accessing of its computer system. it would encourage other auction aggregators to engage in similar recursive searching of the eBay system such that eBay would suffer irreparable harm from reduced system performance. the court found that eBay had shown the requisite damage needed to prevail on its trespass claim. The court further held that BE's conduct interfered with eBay's possessory interest in its computer system. The court held that BE's activities were unauthorized. system unavailability or data losses.Hovenkamp 1. the court again relied heavily on the fact that BE's use of robots to crawl eBay's site. The court held that the plaintiff need not establish a "substantial interference" to establish a claim for trespass to computers. and (2) defendant's unauthorized use proximately resulted in damage to plaintiff. "In order to prevail on a claim for trespass based on accessing a computer system.” software capable of corrupting the plaintiff’s data and tracking her internet use. E-Bay TORTS Fall 2010 a. LLC: the court denied the defendant’s motion to dismiss where the plaintiff pursued a trespass to chattels theory against the defendant who planted on plaintiff’s computer “spyware. b. on the ground “even if their privacy interests were indeed infringed by the data transfer. In reaching this conclusion. Rather "intermeddling with or use of another's personal property is sufficient to establish a cause of action for trespass to chattels". in part. BE's actions exceed the consented access. given. the plaintiff must establish: (1) defendant intentionally and without authorization interfered with plaintiff's possessory interest in the computer system. 2. Privacy Litigation: the court refused to apply a trespass to chattel theory to prevent the defendant from taking key passenger name records off Jetblue’s computers. or cause it to lose profits. Intel Corporation v. the fact that BE continued to crawl eBay's web site after eBay demanded BE terminate such activity." a. such a harm does not amount . As such. (ii) In re Jetblue Airways Corp. Bidders Edge v. the court held that eBay had shown that there was a possibility that it would sustain irreparable injury because "if BE's activity is allowed to continue unchecked. and are unauthorized. DirectRevenue. Modern Forms of Trespass: (i) Sotelo v. if allowed to continue. would encourage others to do the same. 14 a. and thereby raises the scepter of irreparable injury.

the defendant acted with insufficient care 3. Causation requirement is common bond between the two theories B. Holds defendant prima facie liable for any harm that he causes to the plaintiff’s person or property 2. Plaintiff could not simply state in his complaint the facts sufficient to get relief b. Trespass and Case a. Comparison of these two approaches raises several recurrent questions in tort law a.” NEGLIGENCE VII. Must one theory be accepted in total to the exclusion of the other? b. The Forms of Action 1. He had to further show that his cause of action fell within one of the two writs recognized at that time (i) Trespass (ii) Trespass on the case 2. Allows the plaintiff to recover only if.Hovenkamp TORTS Fall 2010 to a diminishment of the quality or value of a materially valuable interest in their personal information. intentional harms aside. has the line been drawn in the proper places? 4. Traditional Strict Liability Approach a. The significant of the forms a. Is it possible to define appropriate areas for each? c. Trespass: Two complementary ways to determine the boundary line between trespass and case: . Opposing Negligence Position a. Central Issue of Tort Theory: When is a defendant liable for the physical harm he accidentally or inadvertently causes? 1. If the latter. Development: Distinguishing Intended from Unintended Actions and Consequences A.

118 b. actionable at common law 3. whether it was intentional or unintentional. direct or consequential. Mather p. Strict Liability and Negligence in the Last Half of the Nineteenth Century • • Negligence concept applied to the nonfeasance of individuals charged either by contract or statute with a duty of care. The Breakdown of the Forms p. 115 . Negligence. was not the prevalent conception .Plaintiff’s action for trespass was dismissed when the defendant fixed a spout in plaintiff’s yard from which water leaked. Shepard: p. the remedy is tresspass. not involving the use of force. in the sense of carelessness in the performance of some affirmative act that causes harm to a stranger. if the act is not wrongful for either of these reasons no action is maintainable. thereby rotting the walls of plaintiff’s house (iii) If the act causes the immediate injury.defendant held liable in trespass for his throwing of a lighted squib • Reynolds v. no matter whether the plaintiff could show that the harm occurred as a result of the defendant’s negligence b.act must be wrongful to be actionable!! limits framing action in case C. trespass is the proper action to redress the wrong • Guille v. 121 if a wrongful act as a result of direct force whether intentional or a result of negligence does an injury. 119 a. that results when action is unlawful by statute • Scott v. 120 The court held that the plaintiff could sue in case. Clarke: p. 118 . Case: (i) Covered all those “indirect” or “consequential” harms. Swan: (case where hot air balloon landed in garden of plaintiff) court held defendant to be liable for all the damages that he should have foreseen to be the consequence of his actions p.Hovenkamp TORTS Fall 2010 (i) Trespass would lay for the redress of harm caused by the defendant’s direct or immediate application of force against the plaintiff’s person or property (ii) Trespass lies for all harm. Williams v Holland p. Holmes v.

jury would be told to judge whether actions are consistent with what a reasonable or prudent person would do under the circumstance 2.” (i) Court does not look at forms of action. but whether an action should lie at all (ii) Today. 123 a. belonging to plaintiff and defendant. Under a negligence rule. Fletcher: (Escaping Substances Doctrine) defendant built a water reservoir on his land which flooded plaintiff’s when it burst. Negligence v. b. were fighting. Strict Liability a. plaintiff must prove that defendant’s intention was either unlawful. Kendall (know case by name): Two dogs. (Non-natural usage of land) (i) Important case regarding when to apply strict liability or negligence rule .Hovenkamp TORTS Fall 2010 1. The Rise of Negligence: Horwitz and The Transformation of American Law a. would not win case 3. which prudent and cautious men would use. “Right-wing conspiracy” (i) The rise of negligence in the 19th century was a scheme by which big-business attempted to shift away from themselves the cost of economic development and operation b. Brown v. Prior to the 19th century. Defendant attempted to separate the dogs using a stick. most of what the railroads did would have been as actionable as trespass or trespass on the case (i) Would not have proved fault (ii) Therefore would have been more reliability c. and as a result hit plaintiff causing serious injury to her eye p. Rylands v. it is not sufficient to show that the defendant caused the harm (i) Had to show that the railroad violated some standard of care (ii) If could not make this showing. or he had been at fault. Ordinary care: “…that kind and degree of care. Rule: For an action to lie. such as is required by the exigency of the case. meaning he did not exercise ordinary care. Result was to shift the cost of economic development from the entrepreneurial class to the victims d. and such as is necessary to guard against probable danger.

he will be liable in damages for any mischief thereby occasioned. and may become mischievous if not kept under proper control. without willfulness or negligence.Hovenkamp TORTS Fall 2010 • Strict liability adopted in this case based on fact that the reservoir was artificially constructed and a “dangerous instrument” • RULE: The law casts an absolute duty on a person who lawfully brings on his land something which though harmless while it remains there will naturally cause damage if it escapes. was unable to recover when rats ate through a box containing water that was collected by gutters from the roof of the building. Ds are prima facie answerable for all the damage which is the natural consequence of its escape. Fletcher: • Nichols v. he will not be liable in damages. though mischief should thereby be occasioned to his neighbor. The defendant however can use as a defense a showing that the escape was P’s fault or that it was caused by a major act of God. Taylor the plaintiff. uses his land in the ordinary manner of its use. regardless of negligence (iv) Acts of God under Rylands v. p. 138 . But if he brings upon his land any thing which would not naturally come upon it. The plaintiff does not have to show negligence. Lothian p. Marsland the plaintiff’s land was flooded when the defendant’s ornamental pools containing large amounts of water broke their banks during an extraordinary rainfall of unanticipated severity. a tenant in the defendant’s building. The court held that it was an act of God and thus was an exception to Rylands p.Court held defendant not liable on strict liability as he had not placed dangerous or potentially hazardous substances near plaintiff’s property. • RULE: Where the owner of land. though in so doing he may act without personal willfulness or negligence. (iii) Dangerous Instrumentality Rule: • If harbor something on land which is likely to cause harm if it escapes. (ii) Natural Use: natural v. 136 (Defendant occupier of business building & leased part of second floor to plaintiff. 138 • Carstairs v.) . artificial construction • Rickards v. and which is in itself dangerous. held liable for all consequences. Someone plugged basin drain on fourth floor which caused damage to plaintiff’s stock.

but by what a reasonable and prudent person would have done in a similar circumstance D. Kenrick: a plaintiff who removies all the coal up to the boundary of his mine is not in default under Rylands. England and United States took radically different views on this issue (i) England adopted strict liability test • Was already highly developed and wanted to deter further development • Strict liability increased the price of doing business (ii) United States adopted negligence test • Wanted to encourage economic development c. The Common Law (i) Rejected notion of strict liability (ii) No liability best rule for entrepreneurial development • Holmes was a strong believer that “losses should fall where they lie” – the presumed rule of non-liability (iii) Attempted to come up with standard for identifying negligence • “External/Objective” Standard: do not judge conduct by what is in the head of the defendant. The best policy is one that minimizes the cost of accidents .Hovenkamp TORTS Fall 2010 .Here. the Rylands rule did not apply because the box and gutters were installed for the mutual benefit of both parties and therefore the defendant did not bring the water into the structure for his purposes alone (v) Default of Plaintiff: • Smith v. Minimizing costs a. even if the coal removed served as a barrier between plaintiff’s and defendant’s property • Holgate v. Strict Liability and Negligence in Modern Times 1. Bleazard: the plaintiff was not in default in a case of horse trespass when he had not repaired the fence around his own land as required by the covenant with his landlord b. Holmes.

The Coase Theorem 3. Under negligence system. Where the precaution costs are greater than accident costs may be better to assume the costs of the accidents c. The negligence standard a.Hovenkamp TORTS (i) Accident costs: cost of resulting harm (ii) Precaution costs: cost in minimizing accidents (iii) Administrative costs: costs of running system • Are very high under the negligence system Fall 2010 b.Would expect harm in both cases. Fletcher Cricket is not inherently dangerous . but the risk of harm is low in the cricket case • This case has been criticized as being wrongly decided today • Strict liability would be the best rule in distributing the costs of accidents .Operates as an insurance mechanism – by permitting the person in the best position to make a decision about what is the best way to deal with the cost of accident . (i) Boston v. often operates as no-liability because negligence is incredibly difficult and costly to prove d. A breach of duty has taken place if guilty of a failure to take reasonable care to prevent a reasonably foreseeable risk. Strict liability shifts the responsibility to the actor (i) The actor is in the best position to make a decision about what the best decision is in handling the cost (ii) The actor is in the best position to distribute the costs through the product pricing system 2. 156 • Court makes a distinction between creating a risk which is substantial in comparing this case to Rylands v. Stone: court adopted the negligence standard and denied appellee’s claim for recovery for her injury as a result of a cricket ball going over a fence p.

171 . defendant failed to do anything about it which resulted in a fire which damaged plaintiff’s property. Elements of Liability: 1. Duty a. The Reasonable Person 1. Breach a. Conduct Constituting Negligence: Identifying the Reasonable Risk A. the owner of property was held responsible for fires set on his land by his guests. had no duty to warn persons who were not in the intended line of flight and who. Negligence is measured by taking as a standard the conduct of a man of ordinary prudence a. Did the defendant’s conduct fall below the applicable standard of care? 3.Also operates as an alternative to insurance in that costs could be distributed amongst the cricket teams’ customers to cover the increased liability costs for hitting someone with the ball (ii) Cricket vs. Golf: • Rinaldo v. Finglam VIII. McGovern: the defendant.Hovenkamp TORTS Fall 2010 . Menlove: despite being warned of the danger posed by the way the hay was put together. Did the defendant owe the plaintiff a duty to conform his conduct to a standard necessary to avoid an unreasonable risk of harm to others? 2. B. in any event. Causation a. 159 (iii) NOTE: at common law. nut not those set by strangers. who sliced a golf ball that soared off the course and shattered the plaintiff’s windshield as she drove by. Did the plaintiff suffer harm? 5. Defendant was held liable for negligence p. Vaughan v. The key inquiry is whether a reasonable person would have recognized this duty and taken action to prevent the harm. Damage a. could not have responded to the warning even if they heard it. Beaulieu v. P. Was the defendant’s failure to meet the applicable standard of care causally connected to the plaintiff’s harm? 4.

before the writing of the common law (iii) Earlier common law cases that dealt with fire. 175 Any man who undertakes to do an act (even if he had no official duty) is liable to an action if because of his neglect. Stamp: The court required a defendant to guard the fire in his field as well as in his house. intelligence. 175 b. but to a standard appropriate to youths of the same age .” p. before Vaughan. subject to this caveat “If he kindle it at a proper time and place. Allen: the court affirmed a jury instruction that a 17-year-old beginning skier be held. most state legislatures have repealed their guest statutes Holmes. Bernard p. not to the adult standard of care. (ii) Guest Statutes: • Silver v. A child is held to the standard of “a reasonably careful person of the same age.Hovenkamp TORTS Fall 2010 (i) The court derived its negligence standard from the notion that “every one takes upon himself the duty of so dealing with his own property as not to injure the property of others” (ii) This was a case of first impression. Goss v. Silver: the court held that the risk of collusive suits between passengers and drivers was sufficiently great to warrant the legislature’s singling guest cases out for special attention • (iii) NOTE: today. and the violence of the wind carry it into his neighbor’s ground. and experience. The Common Law • Must sacrifice individual peculiarities for the interest of society • Standard must represent the average Must be a norm for measuring the standard of care Prescriptive rule rather than a descriptive rule • Should be a question of law rather than a question of fact Juries are highly idiosyncratic 2. Standard of Care: question of law or question of fact? (i) Coggs v.” – RTT:PH §10 a. adopted a strict liability position • Tuberville v. this is fit to be given in evidence. damage occurs.

even though there was no licensing statute for such boats (iii) Harrelson v. 194 (i) The better result would have been to apply a strict liability standard • Would have resulted in a more efficient allocation of costs of idiosyncratic accidents • These costs would have been factored into the “variable costs” charged to consumers (ii) As a general rule. Putney: held that it was not an adult activity for a 14-yearold to entrust a golf cart to an 11-year-old and also that driving a golf cart on private property was not an adult activity c. Pearson: a 12-year-old defendant was held to the adult standard of care in the operation of a speed boat. even though it resulted in the flooding of plaintiff’s house due to an unusual frost p. Birmingham Water Works: court adopted a negligent standard and defendants found non-liable for taking the cost-justified precaution in installing a water plug.Hovenkamp TORTS Fall 2010 b. Evans: adopted the Restatement rule (§283A. the amount of precaution that a negligence rule and a strict liability rule will require is the same . a large piece of machinery with a dangerous cutting blade (v) Purtle v. Calculus of Risk 1. Negligence measured by the cost-justified precaution a. McCuiston: held that a 13-year-old boy should be judged by the adult standard of care in operating a tractor propelled stalk cutter. he forfeits the right to have the reasonableness of his conduct measured by a standard commensurate with his age and is held to the standard as all other persons (i) Daniels v. comment c) in measuring a child’s standard of care when operating a motorcycle • Children held to adult standard if engaging in "adult" activity. Shelton: held a 17-year-old boy to the adult standard of care in the use of dangerous firearms (vi) Hudson-Connor v. they are held to a child’s standard of care C. When children engage in children’s activities. Whitehead: a 15-year-old plaintiff operating a motorcycle was held to the adult standard of care on the issue of contributory negligence (iv) Jackson v. (ii) Dellwo v. Exception: Adult Activities: When a minor engages in adult activities. Blyth v.

Hand Formula: conduct is negligent if the burden is less than the probability times the injury B < PL B: cost of precaution that. if taken. however. The duty of care requires precisely the measure of care that is reasonable under all the circumstances . defendants are held to no liability and victim has to bear ALL the costs b.Hovenkamp TORTS Fall 2010 • Will take the “cost-justified precaution” – will take precautions up until the point where precaution costs and accident costs are equal (iii) Negligence. would have prevented the accident P: Probability of accident L: “Loss”/Magnitude of accident ($ value) (i) Criticisms of Hand Formula • • There are measurement problems in using the formula Is difficult to apply • The ease of computing these numbers depends on the availability of data in the market in question (ii) United States v. will “over-shoot” the amount of precaution to avoid liability 2. Carroll Towing (know case by name): • the court held that the owner’s duty to provide against resulting injuries was the function of three variables the probability that the tug would break away the gravity of the resulting injury if it does the burden of adequate precautions (iii) Negligence will actually result in a greater degree of protection because under negligence standard. shifts the cost to the victims • Is difficult and costly to prove • When it is not proved.

Public Service Co. the fact that the actor is confronted with a sudden emergency which requires rapid decision is a factor in determining the reasonable character of his choice of action (ii) The fact that the actor is not negligent after the emergency has arisen does not preclude his liability for his tortious conduct which has produced the emergency 4. relieving railroad from liability) because actions were in the interest of saving life b. Cooley v. United Airlines Heightened standard of care for airline sufficient to overcome Summary Judgement. (i) Plaintiff was injured by item falling from overhead compartment on defendant's airplane. B < PL difficult to apply. Long Island R. Kelly v.: defendant power company held non-liable for plaintiff’s injury due to wires falling on telephone lines Fall 2010 (i) The “precaution” that defendants had taken was reasonable under the circumstances because the further precautions that plaintiff recommended would have put more people at risk 3. A person who knowingly and voluntarily places himself in a position where he is likely to receive a serious injury is negligent a. unless that act is either rash or reckless (i) Eckert v. possible to retrofit bins with netting. higher duty of care for common carriers (but. reserving it for those distinctive railroad operations in which the passenger had no control over the operation of the train . b. The Utmost Care Standard: a. Andrews v. Exception: An act that would ordinarily be considered negligent is not when it is in the interest of saving life. The court rejected the utmost care standard in this instance. Manhattan Ry: Common carrier – heightened standard for dangerous technical aspects. flight attendants gave warning.Hovenkamp TORTS a. Deceased found non-negligent (issue was whether contributorily negligent. question for jury.: deceased died by saving the life of a child crossing the railroad track. low incidence of injuries). otherwise ordinary standard of care (i) Plaintiff slipped on heavy snow that had accumulated during the night on the stairs leading to the train station. Restatement §296. warnings potentially ineffective (but. Emergency (i) In determining whether conduct is negligent toward another.R. not insurer). complex balancing – heightened duty of care sufficient to overcome summary judgment.

Current rule: national standard (i) Kalsbeck v.” (ii) Hood v. Negligence is often defined by the standard “custom” of the industry a. even where such precaution is above that of the industry custom.J. Phillips “…a phyisician who undertakes a mode or form of treatment which a reasonable and prudent member of the medical profession would . 220 Rejects heightened standard entirely. Unless can show that additional precaution would be prohibitively expensive or would interfere with convenience of passengers. (i) Andrews v.Hovenkamp TORTS Fall 2010 c. reasonable standard. Hooper: the tugs were held liable for not having radio receivers for weather reports even though it was not an industry custom • Court said that “there are precautions so imperative that even their universal disregard will not excuse their omission” b. Westview: today typical standards for medical malpractice actions require that a “doctor must use that degree of skill and learning which is normally possessed and used by doctors in good standing in a similar practice in similar communities and under like circumstances. factor in reasonable standard. D. more danger = more care (i) Collapse of defendant's bus seat hurts plaintiff. United Airlines: The utmost care standard. common carriers will be held to a higher standard of liability. (ii) The T. public transport no longer ultra-hazardous. Custom the basis for liability in medical malpractice a. New York City Transit Authority p. Bethel v. Where there is ambiguity whether the cost will be internalized firms can be forced to make all cost-justified precautions by enacting strict liability (i) Get the purest incentive to take the cost-justified precaution under strict liability rules 2. Custom produces cost-justified precautions provided that the person taking the precautions has the liability or must absorb the costs of the precautions (i) Will not provide cost-justified precaution if not their cost (ii) Can infer that cost-justified precautions will be taken in a market in which firms or actors are forced to internalize or pay for the cost c. Custom 1. Historical rule: custom was local b.

never tested for glaucoma. Carey Custom rejected in some medical cases. Tanaka p. simple cheap pressure test. .Hovenkamp TORTS Fall 2010 undertake under the same or similar circumstances shall not be subject to liability for harm caused thereby to the patient. defendant was still negligent. g. compared his conduct to a national standard of care (iv)However. Belinkoff p. 240 Locality rule no longer observed in some jurisdictions. eye irritation. 235 (iii) Lama v. Liability is not determined by poor outcomes (i) A negligence standard is used as opposed to strict liability because there is a large disjunction between care and outcome (ii) Doctors cannot guarantee outcomes e. unless error is unreasonable • There is a difference between choosing unsuccessfully from a few treatment options and plain Dr. move towards nationalized standard. • Helling construed narrowly in own jurisdiction (Meeks v. 236 Physician error not determinative of medical malpractice. error d. Marx). the movement toward national standards does not necessarily point to uniform standards for all physicians regardless of their level of training c. permanent damage to eyes from late diagnosis. Applicable standard of care to be determined by expert testimony (i) Expert testimony offers the most common way of determining the applicable standard of care f. Rejection of the customary standard: (i) Helling v. where custom is unacceptable (this is the exception not rule). Helling not good precedent. The locality rule: (i) Brune v. or ignored (Barton v.” p. Error in Judgement: (i) Hirahara v. Owen). not common practice to give test under age 40. Borras: in determining whether doctor’s actions were negligent. defendant doctor considered plaintiff too young for risk. • plaintiff patient – 9 years of treatment.

Restatement §321. Bigan had no duty to rescue 3. he is under a duty to exercise reasonable care to prevent the risk from taking effect. Howard (1880) – basis of locality rule. Restatement §322. and subsequently realizing or should realize that it has created an unreasonable risk of causing physical harm to another. Yania v. he has caused such bodily harm to another as to make him helpless and in danger of further harm. Duty to act when prior conduct is found to be dangerous (i) If the actor does an act. Hurley v. There is no affirmative duty to be a good citizen and help others in peril if you have not caused their predicament. 568 (1901) Licensed doctors are not obligated to accept all patients who are in dire need of medical attention. (ii) The rule stated in Subsection (1) applies even though at the time of the act the actor has no reason to believe that it will involve such risk b. Eddingfield p. requires more anesthetic. Restatement §323. the actor is under a duty to exercise reasonable care to prevent such further harm. and failing to rescue him. defendant was not able to claim lower New Bedford standard. but merely mental impact that could not be held to be persuasive unless Yania had been a child. city doctor. 2. whether tortious or innocent. gratuitously or for consideration.Hovenkamp TORTS Fall 2010 • Defendant delivers plaintiff's baby. a. standard practice elsewhere to use less painful method (Boston). failing to warn Yania of the dangerous situation. Bigan: Yania jumped in water and drowned. IX. to render services to another which he should recognize as necessary for the protection of the other’s . Have no affirmative Duty to rescue 1. Exception: if responsible for putting person in perilous situation a. Negligent performance of undertaking to render services. • Overrules Small v. Duty to aid another harmed by actor’s conduct (i) If the actor knows or has reason to know that by his conduct. uses more painful method (common in New Bedford). In a wrongful death action Bigan was charged with urging Yania to jump. excessive anesthetic causes plaintiff to fall out of bed. Duty to Rescue A. The court held that because Bigan had no physical impact on Yania’s jumping in the water. rural doctor vs. c. suffering injuries. (i) One who undertakes.

if • his failure to exercise such care increases the risk of such harm.H. but duty limited by $ constraints. Restatement § 327.) • RULE: It is not a 14th Amend. is subject to liability for physical harm caused to the other by the absence of the aid which he has prevented the third person from giving. and efficient cause of the injury” (i) Montgomery v. Winnebago p. 577 The court refused to hold the government liable. 578 The court held that there is “no affirmative right to government aid. v. Scope of duty to rescue beyond that of someone who causes hazardous situation or has a special relationship with the victim is very limited .Hovenkamp TORTS Fall 2010 person or things. c. (ii) DeShaney v. is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertakings. Duty to Rescue for Public Entities: (i) Riss v. even where such aid ay be necessary to secure life. or to carve out an area of tort liability for police protection to members of the public. Doran p. Morgan: State has a duty to protect a child under state foster care if the state has reason to believe that foster parents are abusive. City of New York p. Naitonal Convoy and Trucking Co. Due Process violation for social workers to fail to detect child abuse. and negligently prevents or disables the third person from giving such aid. or property interests of which the government itself may not deprive the individual” (iv) K. “One may be negligent by acts of omission as well as of commission. for his failure to provide a warning signal. and liability therefore will attach if the act of omission of a duty owed another. Negligently Preventing Assistance: (i) One who knows or has reason to know that a third person is giving or is ready to give to another aid necessary to prevent physical harm to [an endangered person] him. proximate. and petitioner and his mother brought suit against respondents.: defendant held liable for stalled truck on highway that. who was accused of multiple incidents of child abuse. another driver died as a result 4. b. 578 (Custody of petitioner was given to his father. Respondent child services failed to take custody of petitioner. in the absence of legislation. is the direct. under the circumstances. or • the harm is suffered because of the other’s reliance upon the undertaking a. liberty. (iii) Currier v. limits on professional judgment.

defendant assumed duty by meddling. if by so doing he leaves the other in a worse position than when the actor took charge of him 6. being under no duty to do so. however. Common law rule: people should not count on nonprofessionals for rescue Fall 2010 (i) Stockberger v. Zelenko v. following Indiana law.). or • The actor’s discontinuing his aid or protection. Soldano v. combined w/putting plaintiff in room w/out access to others.) 7. that “a clumsy rescue attempt may have interfered with a competent rescue by someone else” • He refused. once defendant assisted plaintiff. defendant's shitty efforts. (i) plaintiff's intestate sick in defendant's store. takes charge of another who is helpless adequately to aid or protect himself is subject to liability to the other for any bodily harm caused to him by • Failure of the actor to exercise reasonable care to secure the safety of the other while within the actor’s charge. 582 Inadequate efforts prevent others from rendering proper assistance. Helping the Helpless: a. defendant renders inadequate aid (leaves plaintiff in infirmary for 6 hrs. defendant had duty to render reasonable care. There is no duty to assist. (See RST §327. United States: one rationale offered for this rule was given by Judge Posner. plaintiff dies. meddling/interfering creates duty.Hovenkamp TORTS a. prevented plaintiff from getting adequate help from another bystander. you must not negligently prevent the person from giving aid. Possible solution: Restitution . O’Daniels: ("Happy Jack's Saloon" patron dies in shooting when nearby defendant restaurant refuses to allow person to call police. Restatement (Second) § 324: Duty of one who takes charge of another who is helpless: (i) One who. Gimbel Bros: p. w/no Dr. No inherent duty to customers in store (not common carrier) but duty assumed in this manner is equally actionable. or to call on his behalf) (i) If you know someone is assisting another person in an emergency. Issues with the Good Samaritan Doctrine a. b. to impose liability on coworkers of a hypoglycemic employee at a federal prison for allowing him to undertake his fatal drive home 5.

“Good Samaritan Rule” (i) One who fails to interfere to save another from impending death or great bodily harm.Hovenkamp TORTS Fall 2010 a. Have typically been designed either (i) To induce rescue by insulating the rescuer against liability for ordinary negligence or (ii) By imposing affirmative duties to rescue. Whereas the tort solution requires a large judgment against the able defendant who does not rescue. shall be punished criminally and shall make compensation to the party injured or to his widow and children in the case of death c. Legislative Responses a. an individual is required under some circumstances to act at his own cost for the exclusive benefit of another. The law does not compel active benevolence between people (i) It is left to one’s conscience whether he shall be the good Samaritan or not b. Standard of duty to rescue (i) Victim in grave peril and obvious to the rescuer (ii) The cost of rescue is low. Epstein. Ames. then it is very hard to set out in principled manner the limits of social interference with individual liberty . and the death or great bodily harm follows as a consequence of his inaction. In both cases the rescuer remains liable for willful misconduct B. of little or no inconvenience 2. subject to the payment of fines b. the restitution solution gives a much smaller payment to the enterprising person who does rescue b. and it eliminates the problem of multiple causation that arises whenever may persons are in a position to undertake a rescue 8. A Theory of Strict Liability a. when he might do so with little or no inconvenience to himself. Once one decides that as a matter of statutory or common law duty. Law and Morals a. The restitution scheme reduces the legal of legal intervention. Scholarly Debates 1.

Epstein’s Tort Theory: A Critique a. anyone who can warn or rescue someone in distress at negligible cost to himself should be required to do so (i) These mutual promises of assistance would create a contract that Epstein would presumably enforce since he considers the right to make binding contracts a fundamental one b. However. Problems with “good Samaritan” duties (i) Deciding when the duty should exist (ii) Identifying the people on whom the duty should be imposed (iii) Proving causation and proximate cause 3. Violations of Statutes or other Government Regulations A. more imperative than any possible infringement of individual autonomy by the imposition of an affirmative duty X. in exchange. Deciding whether an act is made tortious by statute . it will no longer be possible to delineate the sphere of activities in which contracts (or charity) will be required in order to procure desired benefits and the sphere of activity in which those benefits can be procured as of right c. A Lawyer’s Primer on Feminist Theory and Tort a. Posner. as a reasonable measure of mutual protection.Hovenkamp TORTS Fall 2010 b. Bender. there are technical obstacles in the formation of contract among so many people (i) Transaction costs are prohibitive (ii) Tort duties can sometimes be viewed as devices for vindicating the principles that underlie freedom of contract • But consideration for the rescue is not payment when the rescue is effected but a commitment to reciprocate should the roles of the parties some day be reversed • Liability would create a mutual protective arrangement under which everyone was obliged to attempt a rescue when circumstances dictated and. was entitled to the assistance of anyone who might be able to help him should he ever find himself in a position of peril 4. are accepted. regardless of the levels of payment. If all members of society could somehow be assembled they would agree unanimously that. The threatened life of a human being seems more urgent. Once force exchanges.

or to have satisfaction for the injury done him contrary to law by the same statute. 264 The court allowed the plaintiff to introduce into evidence OSHA regulations that took effect AFTER the manufacture of the vehicle in question 2. Purpose of statute b. if related to intent of statute . Carver: held that while the state could not criminally enforce its laws when it erected a stop sign pursuant to a defective statute.” 3. Clinkscales v. Relies on an implicit notion of legislative supremacy to justify the rule that noncompliance with a statute counts as negligence per se. “For wherever a statute enacts anything.Hovenkamp TORTS 1. Must address various difficult issues a. for the advantage of any person. Laws are meant to give a remedy b. McMasters: defendant held liable for plaintiff’s intestate dying as a result of defendant’s clerk failing to label a deadly poison “Poison.” as required by statute p. International Harvester p. “Where a statute or municipal ordinance imposes upon any person a specific duty for the protection or benefit of others. Anon. Public Wrong and Private Action a. if he neglects to perform that duty he is liable to those for whose protection or benefit it was imposed for any injuries of the character which the statute or ordinance was designed to prevent. C. Negligent acts as defined by statute 1. Limitations of statute c. and which were proximately produced by such neglect. Subsequently enacted Statutes: 1. a.” B. Osborne v. nonetheless for a highway user it “was negligence as a matter of law to disregard the stop sign. Statutes and regulations come from numerous places (i) Federal (ii) State (iii) Municipal Fall 2010 2.” a. Thayer. or prohibits anything. 265 (i) Statutes can create new causes of action for negligence. Hammond v. that person shall have remedy to recover the advantage given him.

But his mere lack of medical license in violation of statute is not a demonstration of negligence 3. McMasters 2. the actor violates a statute that is designed to protect against the type of accident the actor’s conduct causes. Breach or neglect of duty imposed by statute or ordinance may be evidence of negligence only if there is a logical connection between the proven neglect of statutory duty and the alleged negligence i. in violation of Public Health Law p. Reduces the question of negligence to the question of whether the statute was violated c. If statute found to be violated. If found that statute was violated.Hovenkamp TORTS 2. without excuse. An actor is negligent if. 273 1. The court held that if defendant did not have the requisite knowledge and skill as prescribed by statute. Brown v. must find that the defendant was negligent – negligence per se a. 270 i. The injury must follow from the neglect . Restatement (Third) §14. and if the accident victim is within the class of persons the statute is designed to protect 3. Shyne: plaintiff was left paralyzed by defendant chiropractor. Herzog: defendant claimed that he was not liable due to decedent’s “contributory negligence” in violating a statute requiring the use of lights in driving after dark p. Three approaches 1. Martin v. who had no license to practice medicine. Takes away from the jury the discretion to find negligence in its own right b. Osborne v. may be considered as evidence of negligence a. Statutory violations as negligence per se Fall 2010 a. The court held that to say that conduct is negligent is not to say that it is always contributorily negligent – must be the cause of the harm b. he could be found negligent 2.

Wellington Service Corp. Abrahams v. a result that is often achieved when a single statute is found to serve multiple purposes a. π's decedent killed when kerosene lamp ignites flammable vapors on surface of river. Once the presumption is created. primary purpose to protect roads. purpose of statute to avoid spread of contagious diseases. judgment for Defendant – purpose of statute not related to preventing sheep from being washed overboard. if no off-setting evidence comes in. π's sheep washed overboard – arguably would not have been if penned. Damage from overloaded vehicle without permit. the plaintiff must show that she falls within the class of protected individuals. Who is protected? 1. 268 Intent not related to unfortunate occurrence. Omni Hotels Management Corp. iii. 269 4. This is thought to be the best rule ii. creates a presumption of negligence a. Shadday v. i. Stimpson v. Secondary purpose of statute can also create negligence cause of action. Actions for any injuries of the character which the statute or ordinance was designed to prevent 1. court permitted recovery despite lack of statutory intent (partly because of Jones Act). regulation aimed at collision not fire. Young & Rubincam p. a. 269 iv. 3. Gorris v. Defendant did not pen sheep in accordance with statute. judgment for plaintiff – weight of truck broke underground pipes. lamp supposed to be at least 8 feet above water per statute – only 3 feet. Scott p. Kernan v. no negligence based on violation of statute. 268 Statutory purpose doctrine not always followed – especially when loss of life involved. a. p. American Dredging Co p. Even where the statute supports a negligence action. 2. If statute found to be violated. Private rights of action under federal statutes: .Hovenkamp TORTS Fall 2010 3. secondary purpose to protect other structures. then the presumption is assumed true b.

No private cause of action for corporate shareholder against corporate directors for violation of federal presidential election contribution laws. Illinois: the court refused to allow a private federal cause of action for nuisance. Baltimore and Ohio R. 1. Wabash Ry. and b. Proof of Negligence: Fact v. Holmes had never driven a day in his life ii. Juries represent the sense of the community that can prove decisive on the estimations of reasonable care required under a negligence system . Matters of public record. California v.Hovenkamp TORTS Fall 2010 1. Limits the Baltimore and Ohio R. Res Ipsa c. But Holmes’ standard of care to be imposed on a driver at a railroad crossing is NOT common knowledge a. City of Milwaukee v. cautions in framing standards of behavior as rules of law as done by Holmes in Baltimore and Ohio R. Stresses that it is important to be careful in emphasizing what is a question of fact and what is a question of law 2. Cort v. rather than a question of fact for a jury 2. no Ds.R. Holmes. 2. 269 Court hostile towards private causes of action related to federal regulations.R. v. Law. Positive side of using juries to assess liability 1. Ash p. Cause of action not within intent of regulations. in determining a standard of conduct in crossing railroad tracks. Goodman: held that the standard of care necessary in crossing a railroad track is for driver to stop for the train 1.R. Facts of common knowledge 3. decision iii. Judicial notice permits a judge to assert as fact a. Cardozo in Pokora v. Judge and Jury i. asserts it as a rule of law. which it regarded as inconsistent with the comprehensive scheme of control imposed by the federal water pollution acts 6. a. Sierra Club: held that the statute did not authorize a private right of action to persons harmed by the diversion of public waters on the ground that they did not suffer special damages 3.

It must be caused by an agency or instrumentality within the exclusive control of the defendant. Juries may be subject to passion and prejudice and find themselves unable to cope with the complex technical issues raised by medical malpractice and products liability claims d. however. but b. Negative side of using juries to assess liability 1. that the negligence was caused by the defendant as opposed to the plaintiff or third party ii. Requirements 1. There are still courts that assert the “exclusive control” requirement 3. “other responsible causes.Hovenkamp TORTS Fall 2010 2.” but i. 2. Used when courts know there was negligence. Restatement differs – does not include “exclusive control. Proof of Negligence i. The theory of the action is negligence. Specific evidence of negligence is very hard to come by because the instrumentality or the activity is entirely in the defendant’s control and there is no good way to “unpack” it and discover what happened 2. It must not be due to any voluntary action on the part of the plaintiff . Juries also check on the domination of the legal system by government officials and professional people iv. The accident must be of a kind which ordinarily does not occur in the absence of someone’s negligence. Designed by courts to deal with cases where a. are sufficiently eliminated by the evidence” b. Jury system is expensive to run 2. and a. It is clear. including the conduct of the plaintiff and third persons. Res ipsa loquitur (“the thing speaks for itself”) 1. but they do not know what the negligence was 3.

In some instances. an injured party is prevented from suing his employer in tort because the exclusive remedy provisions of the workers’ compensation statutes block the tort action i. New York Port Authority: when a plaintiff sought damages after being struck by a automatic glass door. Cases TORTS Fall 2010 1. Automatic Doors: a.” 2. Benedict v. to use res ipsa loquitur. Perry: Res ipsa loquitur standard of what ordinarily doesn't occur without negligence is subjective. the plaintiff attempts to show that some third-party defendant has “exclusive” control of the dangerous instrumentality to support the use of res ipsa. Kmart v. Plaintiff’s conduct and conduct of a third party: a. Assessing the Probabilities of Negligence: a.: defendant was held liable for the injury to plaintiff that resulted in defendant’s failure to properly maintain an escalator a. It strongly suggests a malfunction which in turn suggests negligence” b. Exclusive Control and Workers’ Compensation Statutes: a. The plaintiff’s mere possession of a chattel which injures him does not prevent a res ipsa case where it is made clear that he has done nothing abnormal and has used the thing only for the purpose for which it was intended. the court held “what happened to the plaintiff here is fortunately unusual and not commonplace. “The facts need not show that a stop button definitely was pushed to preclude reliance on res ipsa. court would not allow plaintiff. St. Basset: the court refused to find negligence in Kmart’s decision not to have a regular maintenance contract and to wait for signs of trouble before calling for repairs” 3. Saks & Co. Miles v. Regis Paper Co 4. who was injured when he tumbled back down the steps after the escalator suddenly stopped. Sun Alliance Insurance Co. McDougald v. they need only show that something other than Appellees’ negligence was just as likely to cause the escalator to stop. In Contrast to Colmenares Vivas: Holzhauer v.Hovenkamp iii. . Colmenares Vivas v. In these cases. Eppley Hotel 5. Rose v.

Allendorf v.” a. run over by Δ's rear tires. Stanford University Board of Trustees: the court held that progress in medical research might well be thwarted if jurors were allowed to find negligence on the basis of their common knowledge b. Salgo v. but where surgery is risky or not always successful. Spangard: court held that “where a plaintiff receives unusual injuries while unconscious and in the course of medical treatment. The court held that the jury was properly instructed when told “it could infer negligence rom the happening of the accident alone” iv. the court should give a “conditional” res ipsa loquitur instruction. Res ipsa loquitur and multiple defendants: . Kaiserman Enterprises v. Equipment used may be subject to res ipsa. Common Knowledge and res ipsa loquitur: a. and the res ipsa loquitur doctrine would be applicable under only one version of the accident. All the injections caused plaintiff pain and caused partial paralysis. under which the jury is directed first to decide how the accident happened and to consider res ipsa loquitur only if it finds that the accident occurred in a manner which fits the doctrine. Δ's 130-pound spare tire comes out of cradle beneath tractor as it is driven over railroad tracks. all those defendants who had any control over his body or the instrumentalities which might have caused the injuries may properly be called upon to meet the inference of negligence by giving an explanation of their conduct. Bardessono v Michels: the plaintiff received a series of injections of cortisone and local anesthetic for the treatment of tendonitis in his shoulder. It is one thing to infer negligence from a bad outcome that is overwhelmingly successful in most all cases. will not apply res ipsa to infer negligence ii. hits π's jeep. Res ipsa loquitur – court intuits that accident is of the type that does not occur but for failure to exercise reasonable care. Res ipsa loquitur is particularly influential in this case because this was a routine surgery i. Conditional res ipsa loquitur: 1. Ybarra v. If the evidence presents a factual issue as to how an accident occurred. 6. however 7.Hovenkamp TORTS Fall 2010 i. bounces in air.

Established when the plaintiff has not taken reasonable care.R. Bryan Memorial Hospital: the court refused the res ipsa loquitur instruction because “the district court found that the damage to Darrah’s ulnar nerve could have occurred during or after surgery while he was hospitalized. Darrah v. by the exercise of reasonable care and prudence. Is essentially strict liability by another name a. Somberg: held that the jury had to come back with a verdict imposing liability on at least one of the named defendants 2. Criticism of Res ipsa loquitur 1.Hovenkamp TORTS Fall 2010 1. wantonly. Δ had last clear chance to stop accident. Designed to recognize the fact that with respect to a certain class of cases. or recklessly done . Contributory Negligence 1.” vi. Last clear chance: the “party who last has a clear opportunity of avoiding the accident. Plaintiff’s Conduct Defeating or Limiting Negligence Claim e. is considered solely responsible for it” i. this generally acted as a complete bar to recovery in ordinary negligence cases 2. strict liability would actually be the better rule 7. a. Anderson v. π's decedent dies when hit in wagon on train tracks. and in consequence of her default has suffered injury. The requirement of exclusive control could not be satisfied. Fuller v. inadequate warning whistle. Illinois Central R. Although the injured party may be guilty of contributory negligence. In contrast. exception to π's contributory negligence. judgment for π on last clear chance doctrine. Common Law i. The contributory negligence of the party injured will not defeat the action if it is shown that the defendant might. Exceptions a. this is no defense if the injury were willfully. b. Δ could have braked. notwithstanding the negligence of his opponent. have avoided the consequence of the injured party’s negligence 1.

A plaintiff who. Would discover the situation and thus have reason to realize the peril. he is not entitled to recovery at all a. Last Clear Chance: Inattentive Plaintiff i. when he 1. Forrester: court held that in order for plaintiff to recovery for damage done due to defendant’s obstructing a highway. Illinois Central R. p.Hovenkamp TORTS i.R. Last Clear Chance: Helpless Plaintiff “A plaintiff who has negligently subjected himself to a risk of harm from the defendant’s subsequent negligence may recover for harm caused thereby if. by the exercise of reasonable vigilance. If plaintiff’s actions were found to causally contribute to the harm. 350 Fall 2010 c. could discover the danger created by the defendant’s negligence in time to avoid the harm to him. but only if. Thereafter is negligent in failing to utilize with reasonable care and competence his then existing opportunity to avoid the harm 3. thus making plaintiff at fault. Butterfield v. he had to demonstrate that (1) the obstruction in the road was by the fault of the defendant and (2) that there was no want of ordinary care to avoid it on the part of the plaintiff . Realizes or has reason to realize that the plaintiff is inattentive and therefore unlikely to discover his peril in time to avoid the harm. Restatement §480. Knows of the plaintiff’s situation and realizes or has reason to realize the peril involved in it or 2. the defendant 1. Knows of the plaintiff’s situation. if he were to exercise the vigilance which it is then his to the plaintiff to exercise d. Fuller v. Restatement §479. The plaintiff is unable to avoid it by the exercise of reasonable vigilance and care and ii. The defendant is negligent in failing to utilize with reasonable care and competence his then existing opportunity to avoid the harm. and 3. immediately preceding the harm i. and 2. can recover if.

π had dry grass between train and hay. v..g. allocate burden to party w/ cheapest precautions. I am not contributorily negligent for stacking flax nearby (within reason – not black & white. you cannot invade it – period. They do. however. Chicago. Because the court found that the plaintiff was riding too hard to recognize the obstruction in time. Brady Earlier opinion – more proindustry – farmers should take reasonable measures. Holmes – if π can take cheaper precautions than Δ. LeRoy Fibre Co. ii.R. Beems v. Holmes concurrence). 2 mi. 1. Rock Island and Peoria R. π contributorily negl. minimize the amount of harm that results in an accident . Derheim v. Kansas Pacific Ry. Property rights almost absolute – my property is mine. away. Milwaukee & St. N. 4. catches fire. Seat belts do not prevent accidents themselves 2. π's hay. he could not be found contributorily negligent and thus would be able to recover for any harm caused due to defendant’s own negligence c. reciprocal duty – Coasean – avoiding harm to B inflicts harm on A. Seat belt defense i. but does not contribute to the accident itself a. particularly when there is no statutory duty to wear seat belts” b.Hovenkamp TORTS Fall 2010 i. v. Does not apply to cases where negligence affects amount of damage sustained.. Fiorito Co. More a case of mitigation of damages rather than a case of contributory negligence 1.: (Contributory Negligence “Seat Belt Rule”) court held that it is “extremely unfair to mitigate the damages of one who sustains those damages in an accident for which he was in no way responsible. i. Chicago. stack flax farther away). Δ's train emits sparks negligently. but.: court held that where plaintiff’s actions were found to be industry custom. Paul Ry: If dangerous sparks escape from train on your property onto mine. π should do so (e. ∴ work together to reduce risk. iii. he was barred from recovery b.

Employee. Fellow servant rule . Dare v. A possible solution would have been to make the plaintiff absorb the incremental cost of not wearing the seatbelt c. continues working – assumption of risk. then Derheim was wrongly decided 1. American Axe & Tool Co. 2. paints hatchets for Δ. assumption of risk bars recovery. new rack vibrates. Lamson v. prior knowledge. Results in excessive precautions under Coase Theorem i. Assumption of Risk 1. The Helmet Defense: i. Asks whether the plaintiff has deliberately and voluntarily encountered a known risk created by the defendant’s negligence. and. π employee.Hovenkamp TORTS Fall 2010 ii. holds that she could not be allowed to recover for the consequent harm a. both take the precaution iii. π continues working. aware of dangerous work environment. Sobule: the court held that “a defense premised on an injured party’s failure to wear a protective helmet would result in a windfall to tortfeasors who pay only partially for the harm their negligence caused” 5. π complains. Δ refuses to fix. if she has. Carroll Towing was a contributory negligence case ii. But because for one not to take the precaution is negligence. unstable. The aggregate costs of the two precautions exceed the anticipated accident cost b. If goal is to minimize tort losses. i. injures π. The cost of “buckling up” is very cost-justified and thus negligent not to do so iii. The Coase Theorem and Contributory Negligence a. Each side can prevent an accident by taking the costjustified precaution ii. hatchet falls.

Hovenkamp TORTS Fall 2010 a. Priestly v. total bar for speeding) encourages change of system. Adoption of system of comparative negligence entails the merger of the defense of assumption of risk into the general scheme of assessment of liability in proportion to fault in those particular cases in which the form of assumption of risk involved is no more than a variant of contributory negligence . but denied that the principle could benefit the plaintiff (employee). f. Forrester (pole across road. Steeplechase Amusement Co. Volenti non fit injura: “one who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary” 3. The court said that the “implied contract” of the master does not extend to indemnify the servant against the negligence of anyone but himself b. Murphy v. Assesses liability in direct proportion to fault iii. Δ traveling at excessive speed. Fowler: court held that a stranger could hold the railroad vicariously liable for the wrongs of its servant. adopts "pure" comparative negligence (defined below) a. Yellow Cab Co. justice (2) practical difficulties not insurmountable. Exception: a. Li v. practical experience. but should only reduce the amount of damages recoverable ii. Justification (1) logic. both negligent. The last clear chance rule is inapplicable under this doctrine 3. Plaintiff’s negligence should not typically bar her cause of action. “vice-principal” exception: certain duties of the employer discharged by supervisory personnel are regarded as nondelegable “Modern” Comparative Negligence i. 2. Butterfield v.: plaintiff was denied recovery for injury sustained on an amusement park ride that was said to be a “foreseeable risk” which plaintiff assumed when entered ride i. of California: landmark case that rejects the doctrine of contributory negligence and adopts the doctrine of comparative negligence. who in his view had assumed the risk i. π tried to cross three lanes of oncoming traffic. Court decides total bar to recovery unfair.

Florida) 1. Modified Formula: (Texas. Reverts back to contributory negligence if jury finds plaintiff’s negligence is more than 50% 3. Have said that the rationalization for last clear chance as a matter of proximate cause is simply unnecessary where the jury may compare the parties’ negligence c. Last clear chance a. United States v. If plaintiff is really more to blame than defendant. Plaintiff/defendant responsible in damages for exactly the same proportion in fault 2. A comprehensive system of comparative negligence should allow for the apportionment of damages in all cases involving misconduct which falls short of being intentional iv. “Impure” Comparative Negligence by Judicial Legislation: 1. Strategic consequences: a. plaintiff would absorb 60% of damages v.Hovenkamp TORTS Fall 2010 4. As name more and more defendants. Yellow Cab in rejecting the separate last clear chance doctrine b. Ohio. Massachusetts. An overwhelming majority of cases have followed Li v. Comparative Negligence in Admiralty: 1. New York. Spahn v. Reliable Transfer Co vii. Effect on previous doctrines: 1. do not want him/her to be able to recover 2. Appalachian Power Co viii. Pure Formula: (California. will increase the changes that the jury is going to create a sum of percentages that exceed 50% vi. Town of Port Royal 2. Michigan. Defendant would pay 40% of damages. Example: plaintiff 60% negligent and defendant 40% negligent a. Assumption of Risk . Illinois) 1. Bradley v.

a few jurisdictions have not adopted the doctrine 2. Although virtually all states have some form of comparative negligence. endorsed in Li. Morgan v. Amend v. Jewett 3. In Contrast with Hardy: Roy Crook & Sons v. Strict liability a. Bell 7. The traditional distinction. Johnson 5. no mater what their relative degrees of fault a. Pelletier 8. Seat belt defense: a. LaBier v. Knight v. Allen 6. Maunz v. Exceptions 1.Hovenkamp TORTS Fall 2010 a. An equal division of damages is a reasonably satisfactory result only where each vessel’s fault is approximately equal and each . Limited Capacity: a. Ritzo: held that a comparative negligence statute applied to a strict liability action and that courts should look to “comparative causation” in evaluating damages in strict liability cases 4. Perales ix. Imputed Negligence: a. Courts of admiralty traditionally apportioned damages under a rule of “divided damages. Hardy v. This rule was abandoned in favor of the “pure” form of comparative negligence adopted in Yellow Cab b. Court in Bohan v. Intentional Torts a.” whereby an equal division of property damage was required whenever two ships were guilty of negligence. between primary and secondary assumption of risk has held fast b. Violation of Safety Act a. Monsanto Enviro-Chem Systems i.

If a first defendant had paid full or part compensation to plaintiff. Release of joint tortfeasors: a. Each of several defendants is responsible for the entire loss that they all caused in part ii. a. Does not apply at common law 1. Nixan 2. Several Liability i. 407 h. Exception: a. but is thereby exposed to liability and suffers damages. Union Stockyards: “When one does the act or creates the nuisance and the other doesn’t join therein. Holds each defendant responsible only for his proportionate share of the loss ii. Jointly liable defendant must answer for the full loss 1. he had no recourse by way of contribution against the second defendant. Hess v.” then the exposed party can recover from the party who created the nuisance iii. “Pari delicto” – doctrine of equal fault which says that when two parties are at fault. In order to allow contribution amongst several wrongdoers a party may obtain contribution only if the other wrongdoer is a principal wrongdoer i. Multiple Defendants g. Severally liable defendant can only be held liable for his share of the loss i. Contribution i. Merryweather v. Joint Liability i. the universally accepted position calls for contribution .Hovenkamp TORTS Fall 2010 vessel thus assumes a share of the collision damages in proportion to its share of the blame 8. A form of action amongst co-defendants to force a second defendant to pay for a loss that a first defendant has already paid and deems ought to be shared ii. one of them may not recover from the other 3. Today. Ford Motor Co p.

D2 20% at fault. subtract $3 million . the responsibility for that party is recoverable by the prime defendant against the third party a. $1 million represents a half of the total liability rewards 2. but not all. because the nonsettling defendants pay no more than their share of the judgment i. 2. Majority Rule: Proportionate Share – defendants’ proportion of judgment remains same regardless of whether another defendant settles for an amount other than allocated judgment value a. Exception: Indemnity 1. Workers’ Comp. v. Dow Chemical Co.Y. of the negligence for which a defendant is cast in damages. Typically done by a contract b. McDermott. Can arise in insurance or non-insurance contracts i. But N. There is a preexisting arrangement from one party that makes the other responsible in an indemnification Modern Approach Example: $6 million judgment in a comparative negligence jurisdiction. Exception: Federal law tends to follow common law no-contribution rules iv. Instead of subtracting $1 million. D1 50% at fault.: court held that “where a third party is found to have been responsible for a part. Inc.Hovenkamp TORTS Fall 2010 1. Dole v. Ltd.000. Suppose D1 settles for $1 million. (statute) provided that an employer should “not be liable for contributory or indemnity to any third person…unless such third person proves through competent medical evidence that such employee has sustained a ‘grave injury’” 2. nor are they necessary. Example: 1. AmClyde & River Don Castings.: adopted the proportionate share approach holding that no suits for contribution from the settling defendants are permitted. P 10% at fault and would absorb $600. and D3 20% at fault. Common Law Indemnity: allowing or the shifting of loss on an all-ornothing basis a.

Minority Rule: Partial equitable indemnity – any defendant may maintain an action against any other party. Current equitable indemnity rule should be modified to permit a concurrent tort-feasor to obtain partial indemnity from other concurrent tortfeasors on a comparative fault basis ii. Austin v. Murphy v. 425 iii. Mary Carter Agreements: 1. Mary Carter Paint Co: the court approved an agreement whereby a “settling” defendant remained in the case with his codefendants even after signing a secret agreement with the plaintiff that allowed him to reduce his share of the total damage award as the damage awards levied against his codefendants increased 3. the remaining defendants are still responsible for their proportion of the judgment plus an equal proportion of the remaining value of the settling defendant’s judgment iii. Florida Keys Electric Cooperative Association p. Example: 1. Much more realistic in taking into account what people bargain for ii. Raymark Industries iv. whether or not joined in the original suit. Booth v.Hovenkamp TORTS Fall 2010 3. Remaining defendants would have the same percentage of fault that would dictate the proportion of the remaining judgment they would be responsible for ($1.2 mill) . Superior Court: i. American Motorcycle Association v. Where one party settles. Bargaining toward settlement: 1. Settlement of Multiple Party Actions: 1. to permit partial indemnity among concurrent tortfeasors on a comparative fault basis a.

active ΔB (negligent) – ΔA can sue ΔB for full Ds. Apportionment: 1. negl. Several Liability for Multiple Defendants: i. Evangelatos v.2 mill b. General Rule: no vicarious liability exists for the actions of independent contractors . Passive ΔA. v. Nest-Kart p. Keill p. water escapes. Respondeat superior: one person is held responsible for the wrongs of another solely by virtue of his relationship to that person 1. Safeway Stores v. loss can be apportioned unequally between strictly liable and negligent Δs. They would divide this evenly amongst themselves ($1 million each) 4. Safeway Stores. Nest-Kart (both Δs) (p. engineers) recovery possible. Contribution: Strict Liability and Negligence: i. Note: If case similar to Rylands (reservoir. Each would be responsible for a total of $2. But they would also be responsible for the remaining $2 million the settling defendant was responsible for 3. 417 j. Superior Court: if one or more tortfeasors prove to be insolvent and are not able to bear their fair share of the loss. Vicarious Liability i. Applies to situations of principal and agent. employer and employee) ii. the shortfall created by such insolvency should be apportioned equitably among the remaining culpable parties. no negligence (strict liability).” d. 400) c. Insolvent defendants in joint tortfeasor cases i. Brown v. or which the most common and important is that of master and servant (now.both defendants and plaintiffs. Inc. 416 a. If ΔA strictly liable (80% fault) and ΔB negligent (20% fault).Hovenkamp TORTS Fall 2010 2.

If he did have such rights. but also by the authority that it appears to give i. Defining “independent contractor” a. The doctrine functions like an estoppel: where the principal creates the appearance of authority. a court will not hear the principal’s denial of agency to the prejudice of an innocent third party. A principal will be bound not only by the authority that it actually gives to another. Phillips: “when the injury is a direct result of the work contracted for. Exception: Where an agency relationship is established Fall 2010 • Petrovich v. Based on objective standard of what a “reasonable person” would have thought and “reasonable reliance” 2. it is generally held that if the owner of a lot . Share Health Plan of Illinois. Where the principal retains power to supervise and control the quality of the care of the agent. and details of performing the service is the test to be applied i. Implied Authority – “Control” a. Exception: when the independent contractor does work on the employer’s premises a. who has been led to reasonably rely upon the agency and is harmed as a result 1. then the principal also assumes all or part of the liability 3. Inc.Hovenkamp TORTS iii. then. means. Apparent Authority a. Law v. under the doctrine of respondeat superior. then the workman did not have a master who could be required to respond in damages to the person injured by the workman iv. If he did not have such rights. he is liable for the workman’s tort ii. A landowner is not normally responsible in tort for the wrongs of independent contractors 1.: court held that an HMO may be held vicariously liable for the negligence of its independent-contractor physicians under both the doctrines of apparent authority and implied authority 1. Whether the party for whom the work was to be performed had the right to dictate and control the manner.

Whether any intervening or concurrent human actions or natural events that occur after defendant’s conduct but before the plaintiff’s harm severs the causal connection between them c. Introduction i. is subject to liability for physical harm caused to such others by the contractor’s failure to take reasonable precautions against such danger. “Forward-looking approach” asks whether the chain of events that in fact occurred was sufficiently foreseeable. Physical causation in the roughly scientific sense b. “But for” causation – this injury would not have occurred “but for” defendant’s conduct 2. Proximate cause a. 1. natural. at least considering “but for” causation b. or probable at the outset for the defendant to be held liable for the ultimate harm . Negligence as to Danger inherent in the work. Presupposes that some harmful consequence suffered by the plaintiff was caused in fact by the defendant. Cause in fact a. The issue of proximate causation asks whether the defendant’s conduct could be regarded as a “substantial factor” in bringing about plaintiff’s harm i.Hovenkamp TORTS Fall 2010 employs a contractor to make an excavation on it which removes the lateral support of a building of an adjoining owner the doctrine of respondeat superior is applicable. Requirement of Causation k. or which he contemplates or has reason to contemplate when making the contract.” v. and the liability of the owner of the lot is to be determined as though he actually made the excavation himself. 9. requirement of causal linkage generally raises two distinct issues 1. One who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work. Restatement §427.

v. π fell off of dredge close to shore. ii.” c. partly causative. of Δ contributes to lack of evidence as well as increase in risk.Hovenkamp TORTS Fall 2010 d. from buoy. π drowns 20 ft. i. MODERN: Where Δ's negl. no lifeguard. d. Grimstad: court denied recovery on defendant’s charge of negligence in failing to supply with lifepreservers because it could not be determined that plaintiff would have survived had they been on board b. Trident Fisheries Co. seeking to determine whether any act of a third party or the plaintiff. court remands for trial. The second approach starts with the injury and works back toward the wrongful action of the defendant. Kirincich v. friends try to save him with inadequate rescue equipment (rope). or any natural event. away. Father/son drown in Δ hotel swimming pool. New York Central R. & didn't have required rescue equip. Δ has burden of proof. carried away by tide. Δ knew π's life in danger. for fact finder to decide. π drowns. or signs warning swim at own risk (statutory violation). Switching the Burden of Proof on Causation 1. Vantage Steamship Co. jury finds Δ 15% causation ("pure" comparative negl. Standard Dredging Co Issues of possible causation due to negl. “there is nothing to show they in any way contributed to Ford’s death. a. sufficient possibility that larger. per Coast Guard regulations. Haft v.).R. more buoyant object would have saved man's life.: court held that even if the defendant was negligent. Cause in Fact i. Strict Common Law Causation 1. Lone Palm Hotel If negl. tries to swim to buoy 200 ft. the harm would not have occurred a. eventually remanded for trial. i. no evidence of . dismisses. sufficient to preclude SJ – fact finder weighs info. Drunk π jumps off boat. district ct. Ford v. has severed the causal connection between the harm and the defendant’s wrongful conduct l. app. Reyes v. Plaintiff had to show that had defendant not committed this negligent act. failed in duty to rescue. jury has broad discretion to assign %.

Ct. birth defects alleged. 462 D. The actor’s negligent conduct is a legal cause of harm to another if . General Electric Co v. Restatement §431. Ct. Ct. Daubert v. Joiner p. especially important in new areas of science. Ct. b. argument that (1) default should be lifeguard. contributed to lack of evidence (lifeguard would have been able to testify as to cause – secondary intent of statute?) ∴ burden of proof shifts to Δ. a. it is necessary not only that the actor’s conduct be negligent toward the other. not studies that they had conducted.'s decision to exclude scientific evidence. 462 Revised standard allows new theories to reach the court. 3. Ct. Zuchowicz v. defendant could be held liable 2. D. Ct.Hovenkamp TORTS Fall 2010 cause. iii. Restatement §430. but drug pulled from market. excluded testimony of electrician's experts. but also that the negligence of the actor be a legal cause of the other’s harm 5. SJ upheld. (2) D. Breyer concurs: gatekeeper function of D. Defendant’s negligent conduct must be but for cause of plaintiff’s harm 1. π electrician sues Δs on theory that exposure to PHBs in dielectric fluid caused cancer (π was a smoker & exposed to 2nd-hand smoke). What constitutes legal cause. π's experts relying on reinterpretation of old adverse studies. granted SJ to Δs. Merrel Dow Pharmaceuticals p. did not abuse its discretion in excluding expert testimony based on studies indicating that infant mice developed cancer after receiving massive doses of PCBs. 4. a. In order that a negligent actor shall be liable for another’s harm. S. for missing warning sign (2) negl. Culmination of Bendectin cases. (1) "abuse of discretion" standard applied to D. United States: court held that since the overdose of the drug (negligent) was the but for cause of death. this was enough to support a finding by the trier of fact that the negligent behavior caused the harm a. ∴ no lesser negl. Necessity of Adequate Causal Relation a. but within reasonable limits. can exclude medical expert testimony that is w/out adequate factual basis (gatekeeper). If a negligent act was deemed to be wrongful because that act increased the chances that a particular type of accident would occur and the mishap of that very sort did happen. a.

jury decides. using that word in the popular sense.Hovenkamp TORTS Fall 2010 i. v. aff'd. π waiting for train. Engberg v. π's argument not contradicted by facts. “substantial” is used to denote the fact that the defendant’s conduct has such an effort in producing the harm as to lead reasonable men to regard it as a cause. Δ argues that malfunction due to alteration of car after it left factory. and ii. Ford Motor Co When π/Δ offer competing versions of accident scenario. man dies. and injury occurs. hurriedly leaves lit waiting room to catch train and falls down unlit stairs. Reynolds v. Comment a: Distinction between substantial cause and cause in the philosophical sense i. vi. in which there always lurks the idea of responsibility iv. a. When negl. π in accident in new car made by Δ. There is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in the harm b. a. π's argument: (1) seat belt found buckled but broken (π had it on. the negligence must also be a substantial factor in bringing about the plaintiff’s harm iii. Texas & Pacific Ry. Alternative (Shared) Liability . it is not enough that the harm would have occurred had the actor not been negligent ii. court doesn't allow Δ to put forward fanciful alternative explanations but examines causation in normal course of events. no blood inside (injuries outside car. greatly increases risk of injury. “Slip and fall” cases: 1. Jury convinced by π's argument. Δ's argument that π could also have fallen during broad daylight given no weight by court – Δ guilty. but defective). ∴ jury's decision not clearly erroneous. occurred as result of defective seatbelt). also that π had seatbelt too loose. and not speculative. and both plausible. Cause in fact in Products Liability cases: 1. in order to be a legal cause of another’s harm. His conduct is a substantial factor in bringing about the harm.

Market Share Liability: provides an exception to the general rule that plaintiff must establish that defendant proximately caused injury 1. constitutes a breach of duty to the third person i. For harm resulting to a third person from the tortious conduct of another. would be appropriate to permit them to find both liable and then divide the damages. this would not bar plaintiff from recovery since it was clear that the defendants’ negligent conduct was the direct and proximate cause of plaintiff’s harm vii. Skipworth v. does a tortious act in concert with the other or pursuant to a common design with him. but do not know which has caused the plaintiff’s harm. Sindell v. or b. Persons acting in concert 1. Restatement §876. presumably under joint and several liability rules a. Abbott Laboratories: court held that the manufacturers of the product identical to the one which harmed plaintiff were liable in shares proportional to their share of the market at the time plaintiff’s mother ingested the drug. Lead Industries Association: court held that a claim of concerted action cannot be established if the plaintiff is unable to identify the wrongdoer or the person who acted in concert with the wrongdoer viii. separately considered. Summers v. When there are multiple defendants and it is clear that EACH has violated the standard of care (negligence). Market Share liability is appropriate where the following factors are present: a. gives substantial assistance to the other in accomplishing a tortious result and his own conduct. or c. All the named defendants are potential tortfeasors b. knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself. Tice: court held that although it was unknown which defendant was responsible for plaintiff’s harm.Hovenkamp TORTS Fall 2010 1. one is subject to liability if he a. The allegedly harmful products are identical and share the same defective qualities (fungible) . regardless of actual causation.

Zuchoqicz v. Is if falsifiable? b. where a strong causal link exists.” as required by statute. Substantially all of the manufacturers which created the defective products during the relevant time are named as defendants ix. Testability i. Subject to peer review i. Want burden to be placed in such a way so that if the burden cannot be met. Creates a presumption x.Hovenkamp TORTS Fall 2010 c. Switching the burden of proof on causation 1. The rational way of assigning burden of proof is to assign it to the party with the least plausible claim a. “Daubert Test” Five Factors of admissibility a. it is up to the negligent party to bring in evidence denying but for cause and suggesting that in the actual case the wrongful conduct had not been a substantial factor i. enough to support a finding by the trier of fact that the negligent behavior caused the harm ii. The plaintiff is unable to identify which defendant caused her injury through no fault of her own d. Lone Palm Hotel: father and son drowned in a hotel pool. United States: the court placed the burden on the negligent party to bring in evidence denying but for cause and suggesting that actual cause was something else (where defined by statute) a. Is it sufficiently well-developed that there is literature about it? c. was NOT the cause of death 2. The court held that the burden should be placed on defendants to show that their failure to provide a “no lifeguard on duty sign. A negligent act was deemed wrongful because that act increased the chances that a particular type of accident would occur. Whether there was a known or potential error rate . Haft v. the loss falls on the person who has the least plausible claim 3. Expert Testimony 1.

If plaintiff had better than 50/50 chance that was taken away from negligence. Want to be able to be sure that test is not polluted with confounding variables ii.Hovenkamp TORTS Fall 2010 i. will then put all other numbers aside and award full damages . If show that. The higher the rate of error. Whether there is a lot of debate m. If cannot show this. Does the testing on the peer review literature say something of the rate of error? 1. “General acceptance in the scientific community” i. With the rise of comparative negligence. Want to make sure standards are followed e. Judges are rightfully skeptical about these numbers c. There are a lot of courts that continue to follow the common law rule because it is easy to follow 3. Mainly used to oust “junk” or “pseudo” science ii. Loss of Chance i. how they will be applied to different people a. can recover the full value of the damages a. But difficult to determine where numbers come from. This is an “all-or-nothing” approach 2. Are there control standards that are available? i. courts have been more willing to allocate b. Common law Traditional approach: 1. not compensable b. The numbers are only as good as the confidence in data and experts – which is not very good b. the less reliable d. Have to show at least a 50% chance of recovery but that that chance was lost or significantly reduced a.

Treat numbers as more reliable 2. Causing reduction of the opportunity to recover (loss of chance) by one’s negligence. Question of whether there are too many links in the chain or the sequence of events are too unlikely ii. Modern approach 1. however. Ordinary and natural result of defendant’s negligence 1.R. Proximate Cause i. If he had survived life would have been worth 1 million dollars c. Defendant would then be liable for 30% of that loss d. This issue has to do with proximity as opposed to remoteness 2. does not necessitate a total recovery against the negligent party for all damages caused by the victim’s death b. Herskovits v. Cases 1. This number is no better than the quality of the number iii. Once first meet the “cause-in-fact” requirement. must demonstrate that defendant’s conduct was the proximate cause of injury 1.: court placed a narrow construction on the phrase “ordinary and natural result” of the defendant’s negligence holding that plaintiff could not recover because the damages incurred were not the immediate but remote result of the negligence of the defendants . Is a lot to say about this approach because of low degree of confidence in numbers ii. Results of defendant’s negligence was a 30% reduction in the chances that this person would have survived b. Group Health Cooperative: court held that medical testimony of a reduction of chance of survival from 39 percent to 25 percent was sufficient evidence to allow the proximate cause issue to go to the jury a. New York Central R. Damages should be awarded to the injured party based only on damages caused directly by premature death n. Ryan v.Hovenkamp TORTS Fall 2010 d. Courts will allocate damages a.

must take reasonable precaution to protect others in peril a. Exception: The act of a third person intervening and contributing a condition necessary to the injurious effect of the original negligence will not excuse the first wrongdoer.Hovenkamp TORTS Fall 2010 iii. negatives any causal connection vi. General principle of traditional doctrine: the free. and informed act or omission of a human being. Intentionally tortious or criminal acts done under opportunity afforded by actor’s negligence a.R. even though decent suffered from nervous shock or mental depression brought about by the wrongful conduct of defendant a. §448. Brower v. either in time or place. deliberate. The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom. New York Central & H. unless . from the negligent conduct of defendant iv. Liability of negligent actor confined to foreseeable risk that rendered the defendant’s conduct negligent 1. Once defendant has created a situation of risk.: court held defendants liable for plaintiff’s loss because. because the extra risks created by Prince’s negligence were not all over at the moment the primary risk of collision between the truck and Chevy was dealt with. Restatement Substantial Factor Test: position that the defendant should be liable precisely because the third party did exploit the dangerous condition created by the defendant 1. Nugent: the court held that. More recent cases allow the question to go to the jury 2. One guilty of the original negligence is exempt from damage due to an intervening cause 1. Early common law cases treated decedent’s suicide as an intervening cause. the injury Marshall received by being struck by the Nugent car was not remote. Marshall v. if such act ought to have been foreseen a. defendants’ detectives were supposed to protect the property v. even though thieves stole the property.R. although the actor’s negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime. intended to exploit the situation created by the defendant.

” he could be held liable for the damages resulting from the child’s return to his offending parent because. If the actor’s conduct creates a recognizable risk of harm only to a particular class of persons.: ix. negligent. Jury Instructions . Emergency 1. the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created. does not render the actor liable to the persons so injured 1. If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent. that a third person might avail himself of the opportunity to commit such a tort or crime 2. Tortious or criminal acts the probability of which makes actor’s conduct negligent a. and criminal. or criminal does not prevent the actor from being held liable for harm caused thereby 3. a right of action arises to recover for the physical injury a. to whom the actor could not reasonably have anticipated injury. or ii.Hovenkamp TORTS Fall 2010 i. If a defendant. in a reasonable effort to escape. 2. they were also tragically foreseeable vii. puts the plaintiff under a reasonable apprehension of personal physical injury. by negligence. and plaintiff. such an act whether innocent. Exception: courts have invoked a foresight limitation to bar recovery in these emergency situations viii. Long Island R. sustains physical injury. a. § 449. Restatement §281. although the subsequent beatings were deliberate. Landeros v. Recent cases uniformly follow the restatement a. intentionally tortious. Think of risks in relation to a specified kind of harm and ask whether this harm is within foreseeable risks. Palsgraf v. the fact that it causes harm to a person of a different class. malicious.R. Flood: court held that if a physician negligently failed to identify a “battered child.

” . “A proximate cause of injury is a cause which. in natural and continuous sequence.” 2.Hovenkamp TORTS 1. “A legal cause of injury is a cause which is a substantial factor in bringing about the injury. But for test of cause Fall 2010 a. Substantial factor a. produces the injury and without which the injury would not have occurred.

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