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TORTS COURSE OUTLINE I. EXAM APPROACH A.

Spot issues, and for each issue discuss: 1) Prima facie case: Say whether a prima facie case for that tort has been made. 2) Defenses: Analyze what defense, if any, may arise. 3) Damages: Discuss what damages may be applicable if there are not defenses. a. Punitive damages b. Emotional distress damages c. Loss of companionship damages d. Un-likely and far-reaching consequence damages e. Economic loss damages. II. INTRODUCTION TO TORTS A. TORT: a wrong, other than breach of K, for which the law provides a remedy. 1) No agreement between parties to provide a certain good or service. B. Reasons for Torts: 1) Deterrence 2) Compensation 3) To prevent people from taking the law into their own hands. C. Categories of Torts 1) Intentional torts a. Must prove intent and fault 2) Negligence a. Must prove fault 3) Strict liability a. Dont have to prove intent or fault. b. Animals, ultra-hazardous c. Sometimes applied to products liability i. But if design defect, could be negligence. D. Development of Liability Based Upon Fault: Prosser, et al. pp 1-17. 1) Brown v. Kendall: (dog fight stick in the eye) a. Rule: If an accidental casualty arises from a lawful act, no action can be supported for P unless lack of ordinary care can be proved by P. b. Application: P has the burden of proving lack of ordinary care, new trial c. Note: Chief Justice Shaw introduces the standard of ordinary care. d. Result: Now it is a question of FAULT. 2) Cohen v. Petty: (fainting at the wheel) a. Rule: A person suddenly stricken by an illness, which he had no reason to anticipate, while driving a car, which makes it impossible to control car, is not liable. b. Application: Never happened before, no negligence, not liable. c. Note: D had new standard of ordinary care once he fainted. d. Note: If we could identify that he did something wrong, we could create a standard that would prevent people from doing the same. By imposing liability, we are setting social norms.

e. Note: Tort system based on fault. Otherwise we would have strict liability. f. Greater standard of care = greater incentive under SL. 3) Spano v. Perini Corp.: (blasting and strict liability) a. Rule: Blasting is ultra-hazardous activity, results in strict liability. b. Explanation: Question is not whether it is lawful or proper, but who will bear the cost of any resulting damage. c. Application: D is liable even though he was not negligent. SL imposed. d. Note: We want blasting, were just saying that blasters must bear the cost. Higher level of care. III. NEGLIGENCE A. Elements, p. 131-33 1) Duty of care 2) Breach of duty 3) Causation a. Causation in fact b. Proximate cause 4) Damage B. Definition: Act is negligent when magnitude of risk outweighs the utility. C. A Negligence Formula, pp 133-45 1) Lubitz v. Wells: (golf club left in the yard) a. Rule: Act is negligent when magnitude of risk outweighs utility. b. Application: Golf club is not so obviously and intrinsically dangerous to create a duty to keep it out of the reach of children c. Note: Court looks at public burden = HUGE = cant leave golf clubs out 2) Birmingham Waterworks Co.: (1856) (severe frost of 1855) a. Rule: When foreseeability of harm is low, risk is also low. b. Application: D had provided against temperature for years. Efforts insufficient only due to extreme frost that year. 3) Gulf Refining Co. v. Williams: (1938) (gas cap) a. Rule: A person is negligent by not taking precautions against a danger that is likely, even though it has never happened before. b. Application: D should have reasonably anticipated. Risk may have been low, but burden of not replacing caps was lower. P had no equal knowledge of broken cap that would make him assume the risk. 4) Chicago B & QR Co. v. Krayenbuhl: (turntable) a. Rule: Weigh the potential danger against the cost of making it safe. b. Application: Cost of making lock safe was very low. 5) Davison v. Snohomish County (bridge rail) 6) United States v. Carroll Towing Co.: (1947) (bargee) a. Rule: B < P * L i. B = Burden of avoidance ii. P = probability that harm will happen iii. L = gravity of resulting harm

b. Application: Burden of avoidance was low (being on the ship), probability of harm was moderate, gravity of resulting harm was high. c. Note: Social utility approach. D. Standard of Care 1) The Reasonable Prudent Person, pp 145-68 a. Vaughan v. Menlove: (1837) Ds theory: he did the best he could. i. Rule: Reasonable prudent person is the standard of care. ii. Explanation: Otherwise it would always be different. 1. Objective standard: Fixed 2. Subjective standard: Variable, slippery slope. iii. Application: Doesnt matter that D was not the smartest guy. iv. Note: Tort law is not saying that you are morally wrong, or guilty, just that you are at risk of liability. b. Delair v. McAdoo: (defective tires) i. Rule: The reasonable person standard: driver is expected to know the condition of his tires under normal circumstances. ii. Application: The reasonable person knows when a tire is worn out, and that when it is worn through to the fabric, it is very dangerous. c. Trimarco v. Klein: (1982) (proof of custom, glass tub door) i. Rule: If you can prove custom, then that custom can be used to determine whether or not the actions of D were reasonable. ii. Application: Jury instructions: If you find that this is custom, and that D was unreasonable in not meeting the custom, then D is liable for negligence. iii. Note: MUCH STRONGER ARGUMENT!! d. Cordas v. Peerless Transportation Co.: (emergency situation) i. Rule: Though the act would have been negligent under normal circumstances, it is not necessarily negligent under emergency circumstances. ii. Explanation: Ordinary reasonable person standard remains, but circumstances have changed. Cannot force people to be heros. iii. Application: D not negligent under the emergency circumstances. e. Roberts v. State of Louisiana: (blind person) i. Rule: Blind person held to a standard of the ordinary, reasonable blind person. ii. Explanation: Standard the same, circumstances changed (blind) iii. Application: Going to the restroom w/o cane was reasonable. f. Robinson v. Lindsay: (kid driving a snowmobile) i. Rule: Children are held to an adult standard of care when engaged in inherently dangerous activities. ii. Application: D held to adult standard, is liable for injury to P. iii. Note: Holding kids to a higher standard forces adults to be held to a higher standard in who they let operate dangerous machinery. iv. Standard for kids in most jurisdictions: what is reasonable to expect of children of like age, intelligence, and experience.

1. So it is much more subjective (intelligence, experience). 2. Causes problems (cases showing intelligence or lack thereof in children involved in accidents). g. Breunig v. American Family Ins. Co.: (thought she was batman) i. Rule: Where sudden mental incapacity is foreseeable, then the ordinary reasonable person standard imposed, but where it cannot be foreseen, person is not liable. ii. Application: Enough evidence and forewarning, should have been foreseen, D liable. iii. Note: Court sends a signal: those who are caretakers of those with mental illness are responsible for keeping them in appropriate situations. 2) The Professional, pp 168-97 a. Heath v. Swift Wings: (ordinary, reasonable pilot) i. Rule: Pilots held to the standard of a reasonable pilot. One who engages in a business, occupation, or profession must exercise the requisite degree of learning, skill, and ability of that calling with reasonable and ordinary care. ii. Explanation: Pilots not held to a standard of pilots with the same training and experience (too subjective). iii. Application: D held to the objective standard in instructions. iv. Note 4: THE EXPERT TESTIMONY RULE 1. P must carry burden of establishing standard of care for specific professions. 2. It is not the jurys responsibility to know. 3. So if P has no expert testimony to establish the standard of care of that profession, P has not carried burden of evidence, case can be dismissed. b. Hodges v. Carter: (standard of care of attorneys) i. Rule: The standard of care of lawyers: 1. possess ordinary level of knowledge and skill 2. uses best judgment 3. exercises due care and diligence. ii. Application: No evidence shows attorney did not meet this standard. Does not have to predict change in law by Supreme Ct. c. Boyce v. Brown: (med malpractice ankle screw) i. Rule: You have to show a deviation from the professional standard of care!! ii. Explanation: Expert can say I would have ordered the x-ray, but that is not good enough. iii. Application: Dr. agreed that he would have thought it was arthritis, but said he would have ordered the x-ray. BUT P did not show deviation from standard, D not liable. d. Morrison v. McNamara: (med malpractice natl standard of care)

i. Rule: Health care professionals who are trained according to national standards and who hold themselves out to the public as such, should be held to a national standard of care. ii. Application: Locality doctrine no longer relevant. D holds self out to be national institution, should be held to natl standard. e. Scott v. Bradford: (informed consent) i. Rule: Doctrine of Informed Consent: 2 issues to look at: 1. Reasonable physician standard for informed consent: i. Adequate information about the treatment ii. Available alternatives iii. Collateral risks. 2. What would the patient have done had she known? ii. Explanation: Rights of patients jealously guarded, so standard of a reasonable patient not used in most jurisdictions (allows for subj) iii. Exceptions: 1. If it would worry patient in such a way that it would affect health. 2. Emergency 3. Risks known to everyone. iv. Application: New standard is prospective, D not held to it. v. Note 3: Some courts use what the reasonable patient would want to know rather than what they would do. f. Moore v. The Regents of UC CAL: (liver taken for research) i. Rule: Informed consent requires that a physician disclose to the patient all personal interests that may affect her medical judgment, whether research or economic, as information that is material to the decision of whether or not to have the treatment. ii. Application: P did not obtain informed consent bc he had preexisting research interest that was not disclosed, is liable. 3) Aggravated negligence, pp 197-200 E. Rules of Law, pp 200-04 1) Pokora v. Wabash R.R.: (train track law) a. Rule: Courts should exercise caution when framing standards of behavior that amount to rules of law, especially when there is no background of experience out of which the standards have emerged. b. Application: The stop look listen rule is not appropriate for all circumstances, should be limited or overturned. F. Violation of Statute, pp 204-29 1) Applicability of Statute a. Osborne v. McMasters: (1889) (D EE forgot to label poison) i. Rule: The violation of a statute constitutes conclusive evidence of negligence (negligence per se) when: 1. D violated the statute, AND 2. Statute was designed to prevent such an accident, AND 3. P falls within class of persons statute designed to protect.

ii. Explanation: Statute makes act conclusively negligent rather than just serve as evidence of negligence. iii. Application: D violated statute, it was designed to prevent such accidents, and D was in class meant to be protected (customers). iv. Note: Court simply incorporating this external standard at their discretion. b. Stachniewicz v. Mar-Cam Corp.: (bar fight with American Indians) i. Rule: A violation of a statute or regulation constitutes negligence per se when: 1. Violation results in injury to member of class statute intended to protect, AND 2. Harm is of the kind statute meant to prevent, AND 3. The court finds that it is appropriate for purpose of civil liability. ii. Explanation: Negligence per se gives us duty of care and breach, so we still have to show causation and injury. Legislature already infers causation bc statute is meant to prevent injury, SO REALLY WE JUST NEED TO SHOW PROXIMATE CAUSE. iii. Application: Not under statute, but under regulation: designed to prevent ruckus from occurring, designed to protect other patrons (P), and court deems that standard is appropriate. c. Ney v. Yellow Cab Co.: (keys in the car statute) i. Rule: If at the time of the negligence (violation of statute), the intervening act might reasonably have been foreseen, the causal chain is not broken by the intervention. ii. Application: Negligence per se upheld. Foreseeable that leaving keys in ignition would result in theft, but is a tough question, so should be sent to the jury. iii. Note: Jury will decide on issue of proximate cause. d. Perry v. S.N. and S.N.: (child abuse) i. Rule: For third factor (appropriate), the immense potential liability imposed upon a broad class of people needs to be considered when their relationship to the injury is extremely indirect. ii. Application: Many factors favor civil liability, but court determines that the immense potential liability imposed on a broad class of people with an extremely indirect relationship to child abuse indicates that negligence per se is not appropriate. iii. Note: Courts reluctant to impose an affirmative duty to act. iv. Note: P could have brought common negligence claim, but he didnt appeal it at lower level, so it is gone. 2) Effect of Statute a. Martin v. Herzog: (buggy w/o lights) D using statute to show contributory negligence. i. Rule: Neg per se can be a counterclaim too. The unexcused omission of statutory law is negligence, but you still have to show causation.

ii. Application: There is negligence per se bc P violated the statute. Cardozo says causation is clear, keeps it from the jury. b. Zeni v. Anderson: (nurse rebuttable presumption) i. Rule: If negligence per se is accepted by the court, there is a presumption of negligence, and the burden of proof shifts to D to rebut that presumption (show a valid excuse). ii. Explanation: Evidence required to rebut presumption as a matter of law should be positive, unequivocal, strong, and credible. iii. Explanation: If there is a sufficient excuse, there is ordinarily no violation of statute, and the statutory standard is inapplicable. iv. Application: Nurses violation of statute was likely excusable. v. Note: Court doesnt want to assign liability without fault: nurse took less risky option, violation was excusable, so how can she be liable? vi. 3 Approaches when there is a violation of statute: 1. Negligent as a matter of law, no opportunity to rebut, still have to establish causation and injury; 2. Prima facie negligence: Negligence not presumed. We are going to allow D to bring forth evidence showing that it was not negligent, that it was an excused violation. 3. Rebuttable presumption approach: negligence presumed until rebutted. G. Proof of Negligence 1) 3 Burdens on Party Accusing Negligence a. of pleading b. of production c. of proof: if it is 50/50, still not liable for negligence. 2) Types of Evidence: a. Direct: testimony of eye witnesses b. Circumstantial: foot print in the mud i. Requires an inference ii. Jury decides what is reasonable inference and what is not. 3) Court and Jury: Circumstantial Evidence, pp 229-37 a. Banana Peel Cases: examples of where courts have allowed the inferential jump. i. Goddard v. Boston & Maine R.R. Co.: (at train station) 1. Rule: There must be notice of the dangerous condition, or it must be there for an unreasonable period of time to attach liability. 2. Application: No evidence of whether peel was there for 3 seconds or 3 hours. No evidence of notice. ii. Anjou v. Boston Elevated Railway Co.: (at train station) 1. Facts: Peel was black, gritty, flattened down, dirty, etc. 2. Rule: Inferences can be drawn from the evidence presented in a negligence case to determine a breach of duty and causation.

3. Application: Used details to show that it was very probable that it was there for a long time and D had notice. Sufficient to go to the jury. 4. Key: Look at how you can use facts to argue for inferential jump, or against it. iii. Joye v. Great Atlantic and Pacific Tea Co. 1. Facts: Sticky around the edges, dirt on the floor. 2. Rule: To prove negligence, P must provide sufficient evidence that D had constructive notice of the dangerous condition in order to send it to the jury for a verdict 3. Application: Not enough evidence to show how long banana peel had been on the ground. b. Ortega v. Kmart Corp.: (spilled milk) i. Rule: Knowledge of dangerous condition may be shown by circumstantial evidence which is nothing more than one or more inferences which may be said to arise reasonably from a series of proven facts. ii. Application: Enough proven facts to allow inferential jump by jury. c. Jasko v. F.W. Woolworth Co.: (wax paper pizza) i. Rule: When the operating methods of a proprietor are such that dangerous conditions are continuous or easily foreseeable, the for the logical basis for the notice requirement dissolves. ii. Application: Practice of selling pizza slices on wax paper to standing customers results in reasonable probability that food will drop on the floor, so notice is not required for negligence. d. H.E. Butt Groc. Co. v. Resendez: (slipping on a grape) i. Rule: To recover on a negligence claim, P must show: 1. D had actual or constructive notice knowledge of a condition on the premises; 2. the condition posed an unreasonable risk of harm; 3. D did not exercise reasonable care to reduce or eliminate the risk; and 4. Ds failure to use such care proximately caused the injuries. ii. Application: P did not carry the burden of proof. 4) Res Ipsa Loquitor pp.237-258 = things speak for themselves = big inference a. Byrne v. Boadle: (barrel of flour) i. Rule: Absent additional evidence, a presumption of negligence can arise from the fact of the accident in some cases (res ipsa loquitor). Burden shifts to D to rebut. ii. Application: The mere fact that the accident occurred is evidence of negligence in this case. It is duty of persons in warehouse to take care of barrels. The fact of it falling establishes prima facie case of negligence. Any fact inconsistent w/neg for D to prove. iii. Note: D is in a better position to come forward with evidence. P was knocked unconscious so he has not idea what happened.

b. McDougald v. Perry: (130 lbs tire fell on windshield) i. Rule: Res ipsa loquitor requires that P establish that: 1. the instrumentality causing injury was under the exclusive control of D, and 2. the accident is one that would not ordinarily have occurred without negligence on the part of the one in control. ii. Explanation: Common knowledge or expert testimony can be used to show that the accident would not ordinarily occur without negligence of person in control. iii. Application: Poorly latched tire, the accident itself are most likely due to negligence of person in control of tire, res ipsa applies. iv. LOOK AT NOTE 3 AND 4. c. Larson v. St. Francis Hotel: (falling hotel sofa) i. Rule: 2 reqs: 1) exclusive control; 2) not normal w/o negligence. ii. Application: Injury, not normal without negligence, but sofa was not under exclusive control of hotel. D not negligent, not ordinary course of events. D would have to put security guards in each room. iii. Note: Purpose of res ipsa: smoke evidence that D has that P cannot get. iv. SEE NOTE 5 d. Ybarra v. Spanguard: (surgery team, P under anesthetic) i. Rule: Where P received unusual injuries while unconscious and in the course of medical treatment, all Ds who had any control over Ps body may be called on to rebut presumption of negligence by giving an explanation of their conduct. ii. Rule: The number of relationships alone does not determine whether the doctrine of res ipsa loquitor applies. iii. Application: P was unconscious, so burden shifts to D to explain conduct, maintain their innocence, implicate others, etc. Res ipsa applies. iv. Note: This is a bigger inference bc was dont know what instrumentality caused the injury (like tire, sofa, barrel). But it appears to be something that would not have happened without negligence. v. Policy: If we accept Ds argument, there would rarely be compensation for patients injured while unconscious. Ds have the info needed, and they could all decide to stay quiet. vi. Note: Otherwise, we would have to have strict liability. Res ipsa keeps incentive to talk, smokes out evidence. Compromise between SL and unfairness for patient. e. Sullivan v. Crabtree: (truck swerved off the road, no definite cause) i. Issue: Res ipsa applied, but what is the effect in this case? ii. Rule: Effect of doctrine of res ipsa loquitor may be different depending on the case. iii. Rule: 3 possible effects of res ipsa loquitor:

1. warrants an inference of negligence which the jury may draw or not, as their judgment dictates; 2. raises a presumption of negligence which requires the jury to find negligence if D does not produce sufficient evidence to rebut the presumption; 3. raises presumption of negligence but also shifts the ultimate burden of proof to D and requires her to prove by a preponderance of evidence that the injury was not caused by negligence. iv. Application: Bc such conflicting inferences can be drawn, for jury v. Note: Separate in mind APPLICATION and EFFECT. IV. CAUSATION IN FACT A. Cause in Fact: Linking the specific injury to the specific act of negligence. B. Sine Qua Non, pp 259-62: Something upon which something else necessarily depends. 1) Perkins v. Texas and New Orleans Ry. Co.: (37 in a 25) a. Rule: Negligence is not actionable unless it is the cause in fact of the harm, and negligence is the cause in fact if it is a substantial factor in bringing about that harm (doesnt have to be sole cause). b. Rule: Use the but for test. c. Application: No evidence that suggests that neg (37 in 25) was the cause in fact of the crash, would have happened even if not speeding. Escape theory is pure conjecture, devoid of evidentiary support. C. Proof of Causation, pp 262-82 1) Reynolds v. Texas & Pac. Ry. Co.: (poorly lit stairs) a. Rule: Where negligence of D greatly multiplies the chances of accident to P, and it is of a character naturally leading to its occurrence, the mere possibility that it might have happened without the negligence is not sufficient to break the chain of cause and effect between the negligence and the injury. b. Application: Even with scant evidence (poorly lit stairs, no handrails) it is a reasonable inference. 2) Gentry v. Douglas Hereford Ranch, Inc.: (stairs and rifle death) a. Rule: Judge has to make the call when there is a gap in the factual chain of causation determine how much of an inferential jump he will allow. b. Application: Everything from trip to death is indisputable, but P didnt prove that poorly maintained steps caused the trip. c. Note: THE FACTS ARE EVERYTHING!! 3) Kramer Services Inc. v. Wilkins: (glass caused cancer) a. Rule: It is not sufficient for P to show a possibility that the injury was caused by negligence of Dpossibilities will not sustain a verdict. D must show that it is more likely than not (50.01%). b. Application: Med expert testimony that cause is uncertain should be undisputed, does not meet standard of preponderance of evidence for cause in fact.

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4) Herskovits v. Group Health: (failure to diagnose, % chance of survival reduced) a. Rule: If P shows that Ds acts or omissions have increased the risk of harm to another, then P will have a less than normal threshold of proof to turn case over to jury. But for test does not totally apply. b. Application: 39% to 25% is sufficient evidence to allow the causation issue to go to jury. c. Note: A change from the normal standard of causation. d. Result: 3 different approaches to lost chance of survival doctrine: i. Majority: negligence = lost chance of survival = damages for premature death, causation req is reduced. ii. Concurring: negligence = lost chance of survival = damages, lost chance of survival introduced (new ground for tort law in state). iii. Dissent: negligence = lost chance of survival = no case (traditional standard). e. Policy: If we throw out all these cases, actors will be insulated bc of uncertainties, and these cases can never be brought. 5) Daubert v. Merrell Dow: (limb reduction birth defects from Bendectin) a. Rule: Daubert Test for admissibility of expert testimony: i. Whether the experts testimony reflects scientific knowledge, was derived from the scientific method, and amounts to good science. ii. Whether the proposed expert testimony is relevant to the task at hand. 1. D caused the injury, OR 2. D more than doubled the likelihood of the injury. b. Application: Not enough to meet either prong of Daubert test. D. Concurrent Causes, pp 282-85 1) Hill v. Edmunds: (D left tractor in road, driver swerved, passenger P was injured) a. Rule: Where separate acts of negligence combine to produce directly a single injury each tortfeasor is responsible for the entire result, even though his act alone might not have caused it (j & s liability). b. Application: Both D and driver are liable for injury. c. Note: If you can divide the injuries, you can divide damages. 2) Anderson v. Minneapolis: (concurrent fires) a. Rule: Substantial factor test should be used to determine cause in fact when there are concurrent causes of the injury. b. Explanation: Possibly relaxing the more likely than not standard. c. Application: Ds fire was a material and substantial factor in the damage, so it was the cause in fact. d. Note: Throwing a match into the fire would not be substantial factor. e. Note: Courts moving away from the but for test. f. Hypo: Hill v. Edmunds, party C cut off Edmunds, caused him to get a flat that made him leave car in road. C a cause in fact? Substantial factor test says not. E. Problems in Determining Which Party Caused Harm, pp 285-92

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1) Summers v. Tice: (two shooters same time, one bullet hit P in the eye) a. Rule: Where two people acted negligently resulting in injury to P, then both are liable for the injury even when the negligence of only one of them could have caused the injury. It is left to the wrongdoers to work out between themselves any apportionment. b. Explanation: Different than Hill v. Edmunds bc this is one or the other, not both. c. Explanation: Ybarra v. Spanguard reasoning applies. P does not have to prove who did it, D has to work that out. d. Application: Both Ds liable, can work it out themselves. 2) Sindell v. Abbott Laboratories: (DES estrogen pill enterprise liability) a. Rule: A substantial share of the appropriate market can be liable for damages of their product, though the direct producer of that product is unknown, and the burden of proving innocence is then shifted to Ds. If they cant sort it out and are held liable, they will be responsible for their percentage of the market at the time of the act. b. Application: Burden shifts to D bc market share (90%) so substantial. V. PROXIMATE OR LEGAL CAUSE A. Attack List 1) Injury reasonably foreseeable? Separate in both time and space? 2) Foreseeable P? 3) Superceding cause? 4) B < P * L analysis? 5) Some courts look at situations in hindsight (this was the result of A to B to C, direct, etc) 6) Overarching attempt is to be FAIR B. Unforeseeable Consequences, pp 293-325 1) Ryan v. New York Central R.R.: (spreading fire) a. Rule: An action cannot be sustained for damages that are remoteit can only be sustained for damages that are immediate. b. Application: Only first adjoining building (the shed) could get recovery. NY law modified to allow recovery of first adjoining landowner, as distinct from the first building. 2) Bartolone v. Jeckovich: (schizophrenic weightlifter) a. Issue: Whether result was proximate to the negligent act. b. Rule: Egg shell skull rule: D must take P as he finds him and hence may be liable for aggravation of pre-existing illnesses. c. Application: P was able to function in a relatively normal manner before the accident, but was permanently and totally disabled after. d. Note: Bartolone and Ryan both carved out lines of demarcation for proximate cause: i. Bartolone draws a line at physical infirmities ii. Ryan drew a line at one property (for fires only) e. Note: Unfairness for D, but maybe not if you look at bell curve drawn on the board.

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3) Polemis: (dropped a plank, caused spark, ship exploded) a. Rule: The fact that the damage is not the exact kind one would expect is immaterial if the damage is in fact directly traceable to the negligent act, and not due to the operation of independent causes having no connection with the negligent act. b. Application: Ds dropping of the plank caused the explosion, fact that explosion was unforeseeable is immaterial. c. Note: No question of cause in fact. Just a question of proximate cause. 4) Wagon Mound I: (molten metal dropped by Ps employees, D discharged large quantity of furnace oil, cotton fibers set fire by molten metal, ignited oil in harbor). a. D theory: Couldnt argue foreseeability bc it would implicate D employees, contributory neg. Argued that burden of precaution was much less than the risk that discharging oil posed. b. Rule: The area within which liability is imposed is that which is within the circle of reasonable foreseeability. c. Application: Burning of Ps dock was not the foreseeable consequence of Ds oil spill, and thus the oil spill was not the proximate cause of the damage. d. Note: P could not argue that it WAS foreseeable to D bc it would implicate themselves for contributory negligence. 5) Wagon Mound II: (this time P could argue foreseeability) a. Rule: The area within which liability is imposed is that which is within the circle of reasonable foreseeability. b. Application: This time it was foreseeable to D, and P could argue it. P wins because they did not dump the molten metal, so the fire was not foreseeable. 6) Palsfraf: (negligence becomes relational, a term of relation, zone of risk) a. Facts: Guy w/explosives getting on train, Ds employees push him to get him on, he drops package, boom!, scale at other end of the station falls on P, injures. b. Rule: Negligence is relational, so if P is outside the zone of risk of D, then D is not liable for injuries that occur to P. Not proximate cause. c. Application: Cardozo: P was outside zone of danger of negligent act, not foreseeable, D not liable. d. Dissent: Andrews: Injury was foreseeable, Cardozo not saying as a matter of law that it was not foreseeable, should go to the jury. Invokes Polemis and Ryan. C. Intervening Causes, pp325-44 1) Derdiarian: (failure to secure construction site, P burned by hot enamel) a. Rule: An intervening cause may not serve as a superceding cause, and relieve D of liability, when the risk of the intervening cause occurring is the very same risk which renders D negligent. b. Rule: Liability turns upon whether the intervening cause is a normal or foreseeable consequence of the situation created by Ds negligence.

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c. Application: D is still liable bc negligently set up construction site had the foreseeable consequence of a car crashing into it, P getting hurt. 2) Watson v. Kentucky & Indiana Bridge: (gas leaked on bridge, Duerr threw match, explosion) a. Rule: Liability turns upon whether the intervening cause is a normal or foreseeable consequence of the situation created by Ds negligence. b. Application: If act deemed accident, it would be foreseeable and D would be liable. Act was not criminal. Criminal act not superceding. 3) Fuller v. Preis: (P got in accident w/D, had 38 seizures during next 3 months, couldnt recognize wife, killed himself) a. D theory: Intentional suicide, so it was a superceding act. b. P theory: Irresistible impulse, not an intentional act. c. Rule: If the person acts with an irresistible impulse caused by a previous tortfeasor, then the tortfeasor may be liable, but if there is a cognitive recognition of the suicide, the courts rarely hold the previous tortfeasor liable. d. Application: Enough evidence to be an irresistible impulse. 4) McCoy v. American Suzuki Motor Corp.: (hit by car after helping w/ scene of accident) a. Rule: The Rescue Doctrine: i. Underlying negligence ii. Danger was imminent iii. Reasonable person would have concluded that danger or the appearance of danger existed iv. Rescuer acted with reasonable care. b. Application: It was foreseeable that if D produced a car that would crash for a defect, that someone else might be injured at the crash scene. Proximate enough to go to jury. D. Public Policy, pp 344-60 1) Kelly v. Gwinnell: (guest host liability) Zachs serve drinks to D, drunk driving a. Rule: A host who serves alcohol to a guest and knows that the guest is intoxicated and will be driving is liable for injuries inflicted on a third party as a result of the negligent driving by the guest; b. Analyzing policy impact: i. Look at incentives/deterrence ii. Look at fairness iii. Avoid interfering too much in peoples lives. c. Application: Resulting accident and injury was foreseeable, so cause was proximate and liability should be imposed on the Zachs. Dissent says that it should not be imposed because of policy concerns. Case not typical ruling. 2) Enright v. Eli Lilly & Co.: (DES next generation defect) a. Rule: Drug company liability is limited to first generation of party exposed.

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b. Application: P cannot recover for injuries to Karen (2nd generation). Policy favors the availability of prescription drugs even though they carry some risks. FDA diminishes need of tort system to deter. c. Note: We have to cut off liability at some point as a matter of public policy. We draw line here at one generation. d. Note: The question if how far do we impose liability? VI. JOINT TORTFEASORS A. 3 General Areas Where Law Imposes J and S Liability 1) Concurrent Causes 2) Joint Duties 3) One indivisible injury B. Liability and Joinder of Defendants, pp 361-71 1) Bierczynski v. Rogers: (drag racing) a. Rule: When two parties act in concert, and injury to P results, both parties are jointly and severally liable for the damages, whether they actually injured the party or not. b. Application: D is liable for whole damages even though he did not actually hit P with his car bc he was acting in concert with other D. 2) Coney v. JLG Industries: (platform accident) a. Rule: Reasons for retaining j and s liability pp. 365 3) Bartlett v. New Mexico Welding: (getting rid of j and s liability) a. Rule: J and s liability obsolete under comparative fault system. b. Note: Many jurisdictions have found that it is more fair to retain the system even with comparative fault bc it places the burden of bearing the cost on D rather than P. C. Satisfaction and Release, pp 371-83 1) Bundt v. Embro: a. Rule: But one satisfaction!! 2) Cox v. Pearl Investment Co.: a. Rule: A release with a covenant not to sue does not release all Ds. 3) Elbaor v. Smith: (Mary Carter agreements) a. Rule: Mary Carter agreements are void as violative of public policy. Public policy favoring fair trials outweighs our public policy favoring partial settlements. D. Contribution and Indemnity, pp 383-92 1) Knell v. Feltman: a. Rule: D1 can get contribution even when D2 was not sued. 2) Yellow Cab Co. of DC: (husband protected) a. Rule: No contribution bc other D was Ps husband. b. Policy: Based on the preservation of domestic peace and felicity. 3) Slocum v. Donahue: (seeking contribution from Ford after Ford settled with P) a. Rule: E. Apportionment of Damages, pp 392-402

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1) Bruckman v. Pena: (hit by D, then hit later by someone else) a. Rule: D cant be liable for al of the damages bc they were separate acts. 2) Michie v. Great Lakes: a. Rule: Where the negligence of two or more persons concur in producing a single, indivisible injury, then such persons are jointly and severally liable, although there was not common duty, common design, or concert in action. 3) Dillon v. Twin State Gas and Electric VII. DUTY OF CARE (LIMITS OF DUTY) A. Privity of Contract, pp 403-417 1) Winterbottom v. Wright: (coach repair) D had a K with postmaster to fix coaches, and mail carrier P was later injured due to lack of proper repair. a. Rule: If you dont have privity of contract, you cannot sue. b. Application: P does not have privity of contract with D, so P has no valid claim against D. 2) MacPherson v. Buick Motor Co.: (1916) (defective wooden wheel) D sold wooden wheel to retailer, retailer sold the car with Ds wheel to P. a. Rule: When foresight of injury to the end user can be foreseen, then a duty to prevent the danger is created, and privity of contract is not required for an actionable claim, and you can sue on negligence. b. Rule: Court puts the burden on the person in the best position to fix the problem for the most people (not retailers, goes back to manufacturers) c. Application: D could foresee that the wheel they purchased from manufacturer would go on the car that would end up being driven by P, so D had a duty to inspect the wheels before putting them on the car. Sets Winterbottom aside. d. Policy: Industrialization, mass production, not directly to end user 3) H.R. Moch Co. v. Rensselaer Water Co.: (1928) (no water in hydrant) D had contract with city to provide water to hydrants, but there was no water in hydrant when Ps warehouse was burning down. a. Rule: A duty exists when a party affirmatively increases the risk of injury before the injury occurs. b. Rule: Privity still required for service contracts where a duty was not performed. c. Application: D did not affirmatively increase the risk of a fire before it happened, and D had a service contract with the city, so D is liable to city, not liable for Ps claim. d. Policy: May be unreasonable to hold co. liable to all for city blackout e. Note: Cardozo gravamen test: what is this case really about? Torts or contract? Liability should not be extended out of the zone of duty. 4) Clagett v. Dacy: (1980) (other attorneys not liable) P made bids on foreclosed house, but attorneys for bank made errors, so sales did not go through. Debtor cancelled debt, and P never got the house, sued attorneys for negligence. a. Rule: Attorneys have a duty of care to their client only.

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b. Application: Attorneys of the bank did not have duty owed to P, so P has no actionable claim of negligence. B. Failure to Act, pp 417-38 1) Hegel v. Langsam: (1971) (University not nursery school) P sued University D bc daughter ran with bad crowd, did drugs, didnt go back to dorm, etc. a. Rule: Universities have no duty to regulate, control, or supervise the private lives of their students. b. Application: D has not duty to regulate the life of Ps daughter, so P has not actionable claim. c. Examples: heated bus stop, MIT bridge for crossing (if tortious act is repeated, like 5 hit and runs, it changes or establishes the duty) 2) L.S. Ayres & Co. v. Hicks: (1942) (childs fingers caught in escalator) P sued store D for not turning the escalator off quickly enough, aggravating the injury. a. Rule: D has a legal obligation to take affirmative steps to rescue when D is the master or invitor, or when the injury resulted from use of an instrumentality under the control of D. b. Application: D was invitor, and was in control of the instrumentality, so D was liable for the aggravation of Ps injury, but not the injury itself. c. Note: No duty would exist for any stranger watching injury. Relationship changes when there is invitor and invitee. 3) J.S. and M.S. v. R.T.H.: (1998) (wife of sexual abuser) Ds husband was sexually abusing the neighbor girls, and P sued D for failing to warn or to speak up about it. a. Rule: When someone has a particularized foreseeability of a harm because of their close relationship to the tortfeasor, then that person has a duty to warn the potential third party victims of the danger; b. Explanation: Duty is not a rigid standardit changes in particular situations where a person can foresee the harm and has the power to prevent it; c. Application: Studies show that wives usually know, so D had a particularized foreseeability of her husbands sexual abuse of the neighbor girls, and D had a duty to warn or speak up about it; d. Policy: Strong public policy to protect children from sexual abuse, supported by Megans law; 4) Tarasoff v. Regents of the University of California: (1976) (psychiatrist duty to warn) D was the psychiatrist of a mentally deranged man who said we was going to kill P. Upon release of man, D failed to warn P that she may be in danger, and P was killed. a. Rule: When a person has a special relationship with the tortfeasor or the foreseeable victim, and the failure to act would increase the risk ofharm, the person has a duty to prevent the act or to warn; b. Rule: When a therapist determines or reasonably should have determined that patient poses a serious danger of violence to others, he bears a duty to exercise reasonable care to protect the foreseeable victim;

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c. Application: D determined that patient posed a serious danger of violence to P, so D had a duty to exercise reasonable care to protect or warn P; d. Note: Court finds some areas like this case and the one above where the common law rule just doesnt work; C. Pure Economic Loss, 438-50 1) State of Louisiana v. Testbank: (1985) (PCP spill in the Mississippi River) a. Rule: Economic loss without actual physical damage to a proprietary interest is not recoverable (Robins); b. Explanation: provides a brightline rule with predictable consequences, otherwise a court would not know where to stop extending liability; c. Application: Except for the fisherman et al, Ps cannot recover damages because they only suffered economic loss, but they had no physical damage to a proprietary interest; d. Note: In Kinsman 1 damages to homes due to flooding were recoverable, but in Kinsman 2 economic loss due to closure of bridge were not recoverable (court used a prox cause analysis instead of duty); e. Dissent Rule: Recovery should be based on conventional tort principles of proximate cause and foreseeability and limit eligibility only by the requirement that the claimant prove particular damages; f. Dissent Explanation: Strict application of Robins denies recovery to many Ps who should be awarded damages, and foreseeability and proximate cause would avoid such unfairness; D. Emotional Distress, 450-64 1) Daley v. LaCroix: (1970) (flying car causing nervousness) D negligently crashed car into the power lines in front of Ps home, causing an electric explosion, and resulting in Ps emotional disturbance. P sued D for distress. a. Rule: Definite and objective physical injuries produced by emotional stress that result from a tortuous act are recoverable even in the absence of physical impact; b. Application: There was no physical impact in this case, but the Ps suffered emotional disturbance that resulted in physical nervousness, so the injuries are recoverable; c. Note: Court moved from physical impact to physical manifestation (no physical manifestations, no case); d. Note: As soon as there is a brighline rule, exceptions arise, but how far do these exceptions go? e. Dissent: Ps injuries were not definite and objective, but rather indefinite and subjective; The no impact cases should be restricted to those cases in which a definite and objective physical injury occur; 2) Thing v. La Chusa: (1989) (bystander liability) Ps son was killed by Ds car, and P was not present, but found out right after and went to the scene of the accident. P sued D for emotional distress. a. Rule: Test for recovery for emotional trauma: 1) is closely related to victim; 2) is present when accident occurs and aware that it is causing injury to victim; and 3) suffers serious emotional distress as a result;

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b. Explanation: Test is based on foreseeability, but provides a brightline rule to define it; Deals with bystander v. direct victim issue; More limiting than Dillon test; c. Application: P was the mother of the victim, but she was not present, she was not aware that the accident was causing injury to her son, so she could not recover for emotional distress that she suffered; d. Policy: Avoiding unlimited liability, so court draws a definite line; VIII. DAMAGES A. Introduction 1) Types of damages in tort law: a. Nominal damages: Small sum awarded to P to vindicate rights, make judgment available as matter of record to prevent D from acquiring prescriptive rights, and to carry part of the cost of action; Amt is trivial; b. Compensatory damages: Closest possible financial equivalent of the harm suffered by P, to make P whole again, to restore P to position P was in before tort occurred; c. Punitive damages: Additional to compensation of P, awarded to punish D, to make example of D, and to deter D and others from engaging in similar tortious conduct; 2) Underlying themes: a. Purpose of compensatory damages is to restore P to pre-injury status as far as possible; b. The only tool to make P whole again is money, so all losses must be translated into dollar amounts; c. All damages must be included in one lump sum award on the day the verdict is returned in that single lawsuit that D is permitted to bring; d. Judicial review of jury verdict amounts is relatively limited, only allowing new trials if award is so high or low that it shocks the conscience; e. Because punitive damages are to punish and deter, they are focused on the behavior and characteristics of D rather than P; B. Personal Injuries, pp 519-48 1) Anderson v. Sears, Roebuck & Co.: (1974) (damages for burned child) Court ruled on whether the damages awarded exceeded the maximum recovery. a. Rule: The maximum recovery rule directs trial judge to determine whether the verdict of the jury exceeds the maximum amount which the jury could reasonably find and if it does, the trial judge may reduce the verdict to the highest amount that the jury could properly have awarded; b. Application: The $2 million awarded does not exceed the maximum recovery, which trial judge estimated to be $2.98 million, so it stands; 2) Richardson v. Chapman: (1997) a. Rule: b. Application:

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3) Montgomery Ward & Co. v. Anderson: (1998) (collateral source rule) P had medical expenses cut in half by hospital, and D argued that they should be subtracted from damages. a. Rule: Collateral sources cannot be introduced as evidence unless the benefits from the collateral source are relevant for a purpose other than mitigation of damages; Rule includes money from employer or insurance policy, or gratuitous or discounted medical services; b. Explanation: Exceptions (i.e. when a collateral source may be introduced): i. To rebut Ps testimony that she was compelled by financial necessity to return to work prematurely or to forego additional medical care; ii. To show that P had attributed his condition to some other cause, such as sickness (sick days); iii. To impeach Ps testimony that he paid his medical expenses himself; iv. To show that P had actually continued to work instead of being out of work as claimed; c. Application: Ps discounted medical services fall under the collateral source rule and cannot be used as evidence to reduce damages. d. Policy: If someone is going to get a windfall, it should be P; 4) Zimmerman v. Ausland: (1973) (torn semilunar knee cartilage) P elected to not get a surgery for her torn knee cartilage that was caused by D. a. Rule: P in a personal injury case cannot claim damages for an otherwise permanent injury if the permanency of the injury could have been avoided by submitting to medical treatment, including possible surgery, when a reasonable person would do so under the same circumstances. b. Explanation: Factors to be considered are 1) risk involved, 2) probability of success, and 3) the cost and effort required. c. Application: D has the burden of showing evidence of these factors, but D failed to produce the evidence, so P can recover full amount awarded by the jury. C. Physical Damage to Property, pp 548-50 1) Highest intermediate value: highest value that the goods have reached during the period from the time of the wrong to the trial. 2) Highest replacement value: highest market value between the time of conversion and a reasonable period within which P could have replaced the goods. 3) Non-salable goods: When market value is too low bc of special value to P, P may recover the value of goods to P. D. Punitive Damages, pp 550-64 1) Purposes of punitive damages: a. Punishing D b. Admonishing D not to repeat c. Make an example of D: deterring others from doing same d. Vindication: deters P from taking revenge into own hands

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2) Cheatham v. Pohle: (2003) (state gets 75% of punitive) D put naked pictures of his ex wife P on a flier with her name and contact info and passed it out. a. Rule: When punitive damages are awarded, statute saying P takes 25% and state takes 75% is constitutional because P has already been compensated, and D is still being punished. b. Application: P has no claim to the punitive damages because she has already received compensatories, and D is still getting punished; Indiana statute is constitutional. 3) State Farm Automobile Ins. Co. v. Campbell: (2003) State Farm scheme led them to take Campbells case to trial when they should have settled. a. Rule: Gore guideposts for measuring punitive damages: 1) the degree of reprehensibility of Ds misconduct, 2) disparity between actual or potential harm suffered by P and the punitives, and 3) the difference between the punitive damages awarded by the jury and the civil penalties imposed in comparable cases; 9 to 1 ratio should be max unless exceptional situation. b. Explanation: Factors for reprehensibility: harm was physical as opposed to economic, the tortious conduct evinced an indifference to or a reckless disregard of the health and safety of others, the target of conduct had financial vulnerability, conduct involved repeated actions, and harm was result of intentional malice, trickery, or deceit. c. Application: Act was reprehensible; The ratio of $145 M to $1M is way too high; The state civil penalties for actions would result in about $10K fines, so amount awarded is much too high. Reversed. d. On remand: 9 to 1 ratio of punitives awarded to Campbells: $9 M. IX. DEFENSES Plaintiffs Conduct, pp 586-614 A. Contributory Negligence 1) Butterfield v. Forrester: (1809) (contributory negligence) P was riding on house at high speed at dusk and hit Ds negligently placed log. a. Rule: One persons negligence will not dispense with another persons duty to act with ordinary care. b. Explanation: There was be negligence by D, and no want of ordinary care by P to sustain an action. c. Application: P was riding as fast as he could when it was getting dark, so he failed to exercise ordinary care, and therefore D is not liable. 2) Davies v. Mann: (1842) (the fettered ass) a. Rule: Last Clear Chance Doctrine: If P and D were both negligent, but D had a clear chance to avoid the injury, then D is still liable. b. Application: D had a clear chance of avoiding hitting the fettered donkey, but he proceeded to negligently drive wagon down road at excessive speed, so D is liable for killing the donkey. c. Note: This was an effort to ameliorate some of the injustices of contributory negligence, lasted for a long time. B. Comparative Negligence

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1) McIntyre v. Balentine: (1992) (D ran into P on the highway, both had been drinking, found for D on contributory neg, P appealed for comparative neg. a. Rule: So long as Ps negligence remains less than Ds negligence, P may recover according to the percentage of fault of D. J&S liability out. b. Application: Because jury was not properly instructed according to new comparative negligence standard, remanded for a new trial. c. Note: 46th state to turn to comparative negligence (MD, VA, AL, NC). C. Assumption of Risk 1) Seigneur v. National Fitness Institute, Inc.: (2000) (express) P signed up with D to get in shape, tore shoulder in first fitness test, contested adhesion K. a. Rule: There are 3 areas where public policy says exculpatory clauses are not valid: 1) When party protected by clause intentionally harms or reckless, wanton, or gross neg, 2) When bargaining power of one party is grossly unequal, and 3) When transaction involved public interest (essential). b. Application: Harm was not intentional, willful, or wanton, there were many clubs to choose from so bargaining power was not grossly unequal, and D does not provide an essential public service; exculpatory clause is not patently offensive and is valid. c. Key: She had other choices, and it was not an essential public service. d. Tip: Look at whether clause was ambiguous, then look at 3 factors. 2) Rush v. Commercial Realty Co.: (1929) (implied) P used Ds outhouse, fell through and into accumulation at the bottom. a. Rule: Implied assumption of risk requires: 1) actual knowledge of risk, 2) appreciation of magnitude, and 3) voluntary encountering or risk. b. Application: P had not other choice, and should not be expected to go off premises to find another privy, and P had not knowledge of the risk, so there was no implied assumption of risk. c. Note: Assumption of risk: venturousness, know risk, exercise due care, injury; contributory neg: carelessness, dont know risk, fail to exercise due care, injury; 3) Blackburn v. Dorta: (1977) (implied) Ruling on assumption of risk as defense a. Rule: There is no discernible difference between the affirmative defense of contributory negligence and implied assumption of risk, so the latter is subsumed in the former and decided on a comparative fault basis. b. Application: N/A X. VICARIOUS LIABILITY A. We are holding someone liable not because they were negligent, but because of their relationship with the person who was negligent. B. Respondeat Superior pp 660-67 1) The doctrine: Look to the person higher up = imputed negligence a. Necessary pre-conditions: i. Employer-employee relationship (master-servant) ii. Employer stands to profit from employees services

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2) Bussard v. Minimed, Inc.: (2003) Employee went to work after it had been fumigated for pests, fumes were still strong, got sick and left work early, rearended P. a. Rule: When the possibility of harm is foreseeable, and it arises from employees conduct that is not unusual or startling, it falls within the scope of work-related activities, and respondeat superior applies (can work as an exception to the going and coming rule). b. Application: Even though P was on her way home, the possibility of the fumes making employees sick and forcing them to go home early was foreseeable, so going home was work-related, respondeat superior applies. c. Note: Broadens scope of work-related activities. 3) OShea v. Welch: (2003) (Chiefs tickets delivery) Employee was taking Chiefs tickets to main office, decided to go to service station for estimate on maintenance for his car, collided with P. a. Rule: Slight deviation rule: If it is only a slight deviation, you can consider it within the scope of work-related activities. b. Explanation: Factors to consider: 1) employees intent; 2) nature time and place of deviation; 3) time consumed; 4) work for which EE was hired; 5) incidental acts reasonably expected by ER; and 6) freedom granted to EE in performing job duties. c. Application: Employee intended to get an estimate for non-emergency maintenance on a car used for business, so it was probably in scope. d. Note: Dual purpose ventures may also be considered within scope. C. Independent Contractors, pp 667-73 1) Murrell v. Goertz: (1979) (paper boy punched client) a. Rule: An independent contractor works free from control and direction of employer, so respondeat superior does not apply. Decisive test for determining whether a person is an employee or an independent contractor is the right to control physical details of the work. b. Application: D was an independent contractor because company did not hire D, did not know D was working for them, and D had no direct contact with company. 2) Maloney v. Rath: (1968) (non-delegable duties) Negligent brake repair. a. Rule: Some duties are non-delegable, and a person is liable for breaching these duties even if the breach was due to the negligence of an independent contractor. b. Application: The duty to maintain a safe car with good brakes is a nondelegable duty, so D is liable for mechanics negligent repair. c. Policy: For public policy reasons it is treated like employer-employee. D. Joint Enterprise, pp 673-78 1) Popejoy v. Steinle: (1991) (no pecuniary interest) P sued Ds estate, claiming D had joint enterprise with his wife when she went to buy a calf for their daughter, and crashed into P. P trying to extend liability to other partner in joint enterprise.

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a. Rule: 4 elements of a joint enterprise: 1) an agreement, express or implied, among members of group; 2) a common purpose to be carried out by the group; 3) a community of pecuniary interest in that purpose among members; and 4) an equal right to a voice in the direction of enterprise. b. Application: Profits from calf would go directly to the daughter, so D and wife had not pecuniary interest in the purchasenot business deal. XI. STRICT LIABILITY A. Negligence v. Strict Liability = Reasonableness of Ds failure to warn 1) Consider whether manufacturer was reasonable in light of the risk 2) Jury may decide reasonableness B. Animals, pp 686-92 1) Rule: Wild animals = strict liability. 2) Rule: Domesticated animals = no strict liability, UNLESS the owner knows or has reason to know that the animal had dangerous propensities abnormal to its class. C. Abnormally Dangerous Activities, pp 692-710 1) Rylands v. Fletcher: (1866) (res flooding mine shaft) Intro of strict liability a. Rule: A D that undertakes an unnatural or abnormally dangerous activity does so at Ds own peril, and is strictly liable for injuries, unless D can show that P was really at fault. b. Application: D is liable for Ps damages bc D undertook to build a res, and they have to bear the risk of injury. c. Note: Lord Cairns: land used for unnatural purpose, so strict liability. 2) Miller v. Civil Constructors, Inc.: (1995) (stray target practice bullet) P hit with bullet on near target practice, fell off truck, sue P for strict liability. a. Rule: One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels resulting from the activity, even though he has exercised the utmost care to prevent harm. b. Explanation: Section 520 factors to consider (>1 but not all necessary): i. Existence of high degree of risk of harm ii. Likelihood that harm will be great iii. Inability to eliminate risk by exercise of reasonable care iv. Extent to which the activity is not a matter of common usage v. Inappropriateness of the activity to the place where it is carried out on vi. Extent to which the value to the community is outweighed by its dangerous attributes c. Application: Risk of harm of target practice can be virtually eliminated by the exercise of reasonable care, firearms are matter of common usage, location was appropriate, and it has social utility for police, so activity was not ultrahazardous. d. Trend: Courts are not interested in expanding liability without fault. 3) Indiana Harbor Belt R.R. Co. v. American Cyanamid Co.: (1990) (acrylonitrile leaked in railyard)

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a. Rule: Section 520 factors should be applied. b. Application: Shipping dangerous substances through urbanized areas is not an abnormally dangerous activity: the leak could have been avoided with reasonable care, the social utility of transporting substance is very high, the location was appropriate for changing lines. c. Note: Purpose of imposing SL: 1) Social utility (if it is not important to society); 2) Incentivized behvavior: P shouldnt have to bear the burden of cost; and 3) D should spread the cost to all consumers. d. Policy: SL imposes burden upon anyone, who for own purposes creates an abnormal risk of harm to others, the responsibility of relieving against that harm when it does in fact occur. e. Note: Not neg per se, bc court decides that value to community is sufficiently great that mere participation in activity is not wrong in negligence sense. Activity must simply pay its own way. D. Limitations on Strict Liability, pp 710-17 1) Foster v. Preston Mill Co.: (1954) (mink killed kittens due to blasting) a. Rule: Ds liability under SL extends only to things which make the activity ultrahazardous, and not harms incident to Ps extraordinary and unusual use of their land. b. Rule: Must be a foreseeable consequence of ultrahazardous activity proximate cause is a defense to SL!! c. Application: Mink eating her young is not a risk that makes blasting ultrahazardous, it was not foreseeable, and it is incident to Ps unusual use of land for a mink farm. d. Note: In SL cases proximate cause is read more narrowly. 2) Golden v. Armory: (1952) Ps plant was flooded due to flood. P sued D for Ds negligent upkeep of dike that didnt prevent flooding. a. Rule: If the cause was an act of God, strict liability will not be imposed. b. Application: The flood was caused by an act of God, no SL. c. Note: Like Birmingham Waterworkscould not be foreseen. 3) Sandy v. Bushey: (1925) P took mare into Ds pasture to feed, and Ds mare, which had known vicious propensities, attached and injured Ps mare. a. Rule: A D is not relieved from SL for keeping a vicious animal by the slight negligence of P. P must wantonly, or voluntarily and unnecessarily put himself in way of such an animal. b. Application: P stayed far away, and Ds mare attacked. SL for D. XII. PRODUCTS LIABILITY A. Definition: The umbrella term for liability of a manufacturer, seller, or other supplier of chattels, to one with whom he is not in privity of K, who suffers physical harm caused by the chattel. B. Development of Theories of Recovery, pp 718-38 1) Negligence a. MacPherson v. Buick Motor Co.: (1916) (defective wooden wheel) i. Rule: When foresight of injury to the end user can be foreseen, then a duty to prevent the danger is created, privity of contract is

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not required for an actionable claim, and you can sue on negligence. ii. Rule: Court puts the burden on the person in the best position to fix the problem for the most people (not retailers, goes back to manufacturers) iii. Application: D could foresee that the wheel they purchased from manufacturer would go on the car that would end up being driven by P, so D had a duty to inspect the wheels before putting them on the car. Sets Winterbottom aside. 2) Express Warranty a. Baxter v. Ford Motor Co.: (1932) (shatter-proof windshield shatters) i. Rule: Elements needed to prevail on a claim of express warranty: 1. Misrepresentation by D 2. P relied on it 3. Not detectable ii. Rule: It is immaterial that manufacturer did not know representations were false, or that he believed them to be true. iii. Application: Ford represented to retailer that windshield was shatter-proof, it was not true, P relied on it, and it was not detectable by P, so Ford is liable. iv. Policy: Policing markets bc D is benefiting from misrep. 3) Implied Warranty a. Henningsen v. Bloomfield Motors Inc.: (1960) (clause in adhesion K disclaiming all warranties, including merchantability, is not valid) i. Rule: A seller cannot disclaim the implied warranty of merchantability or fitness in an adhesion K. ii. Application: Seller cannot disclaim implied warranties. iii. Note: Evolution of SL: imposing liability even when K says there is not liability. iv. Note: Unequal bargaining power between consumer and auto industry. Layman relies on industry, so industry should be liable. 4) Strict Liability in Tort a. Greenman v. Yuba Power Products, Inc.: (1963) (Shopsmith defect) i. Rule: Liability for product defects is not governed by K law, but by strict liability tort law. Elements required for a successful products liability claim: 1. P was injured as result of defect 2. P used product in way it was intended to be used 3. P was unaware of the defect ii. Application: P used product as intended and was unaware. iii. Note: This applies to damage to peoplewarranties deal with economic loss. b. Restatement (Second) of Torts 402A i. One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to

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liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if 1. the seller is engaged in business of selling such a product, and 2. it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. ii. The rule stated in Subsection (1) applies although 1. seller has exercised all possible care in the preparation and sale of his product, and 2. the user or consumer has not bought the product from or entered into any contractual relation with the seller. C. Product Defects, pp 738-64 1) Restatement (Third) of Torts: Product Defectiveness a. Section 1: Liability of Commercial Seller or Distributor for Harm Caused by Defective Products i. One who engages in selling or distributing ii. Sells or distributes defective product iii. Strictly liable for harm to persons or property caused by defect b. Section 2: Categories of Product Defect: i. Manufacturing defect: Product departs from intended design even though all possible care was taken in preparation and marketing of product. ii. Design defect: Product has foreseeable risks of harm that could have been avoided or reduced by adoption of a reasonable alternative design by seller or other predecessor in chain or distribution, and the omission of the alternative design renders the product not reasonably safe. iii. Inadequate warnings: Product has inadequate instructions or warnings when foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor in chain, the omission of which renders product not reasonably safe. 2) Rix v. General Motors Corp.: (1986) (manufacturing defect: faulty brakes) Car w/ defective brakes rear-ended P. P sued for products liability. a. Rule: Manufacturing defects are imperfections that inevitably occur in a typically small percentage of products of a given design as a result of the fallibility of the manufacturing process. b. Explanation: Something wrong with particular unit, so you go into court with defective product and a correctly manufactured product. c. Application: Jury instructions were appropriate d. Note: Manufacturer has to factor these costs into price of product. e. Note: These cases rarely go to trial (settle). f. Note: Manu defect is almost always accompanied by design defect.

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3) Prentis v. Yale: (1984) (design defect: forklift without a seat) a. Rule: A manufacturer has a duty to use reasonable care in designing product against foreseeable and unreasonable risk of injury, including misuse that might be reasonably anticipated. Uses neg standard and riskutility analysis. b. Explanation: B < P x L Many courts are requiring a show of some fault, despite adopting strict liability standard. c. Application: Jury only needs to be instructed on a single theory of negligent design. d. Note: Balance between encouraging innovation and product safety. 4) OBrien v. Muskin: (1983) P sued D for design defect in above ground pool, said that vinyl lining and lack of warning made pool defective. a. Rule: Risk-utility analysis is appropriate when product may function satisfactorily under one set of circumstances, yet because of its design present undue risk of injury to user in another situation. b. Explanation: Factors to consider for risk-utility analysis: i. Usefulness and desirability of product ii. Safety aspects of productlikelihood of injury iii. Availability of a substitute product which would meet the same need and not be as unsafe iv. Manufacturers ability to eliminate unsafe characteristics of product w/o impairing usefulness or making too expensive v. Users ability to avoid danger by exercise of care in use of product vi. Users anticipated awareness of dangers inherent in product vii. Feasibility of spreading the loss increased price or liability insurance viii. State of the art c. Application: P should have the chance to prove elements of risk-utility. d. D. Proof, pp 765-69 E. Defenses, pp 769-83 XIII. INTENTIONAL TORTS pp 18-90 A. Intent 1) Garratt v. Dailey: (1955) (boy pulls chair out from under arthritic lady) a. Rule: To constitute an intentional tort, it is not enough that the act itself is intentionally done even though the actor realizes there is a risk of contact or apprehension; the actor must also be substantially certain that the contact or apprehension will result. b. Rule: Intentional tort = intent to do act AND intent to cause harm (substantial certainty that contact will occur). c. Application: Boy intentionally pulled chair out from under P, but it is not clear that he did it with substantial certainty that she would attempt to sit on it and thereby fall to the ground. d. Test: Did actor know with substantial certainty that contact would occur?

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2) Spivey v. Battaglia: (1972) (unsolicited friendly hug) a. Rule: Line between negligence and intentional tort has been drawn at point where known danger ceases to only be a foreseeable risk which a reasonable man would avoid (negligence), and becomes a substantial certainty. b. Application: D could not have been substantially certain that P would get a paralyzed face from his hug. c. Note: reasonable certainty v. foreseeable risk is question for jury. 3) Ranson v. Kitner: (1889) (wolf hunters killed neighbors dog) a. Rule: Still an intentional tort, even when act was in good faith. b. Application: D acted in good faith, but had intent to harm, so liable c. Note: It was a mistake, not an accident, bc D intended to kill, just thought the dog was a wolf. 4) McGuire v. Almy: (1937) (insane D attacks nurse P) a. Rule: If insane person does intentional damage, liable just as sane person would be: must have been capable of entertaining same intent and must have entertained it in fact. b. Application: D had threatened to kill P, and had gotten the leg of the furniture as a weapon, so it was apparent that D was capable of entertaining and did in fact entertain an intent to strike and to injure P. 5) Talmage v. Smith: (1894) (D threw stick at kids to get off shed, missed kid he was aiming for, and hit and blinded P) a. Rule: Doctrine of transferred intent: if you intend assault, and commit battery, intent is transferred. b. Application: D intended to scare one kid, but injured other kid, so intent was transferred, and he is liable for intentional tort. c. Note: Applies to torts that fall within trespass writ: battery, assault, false imprisonment, trespass to land, trespass to chattels. B. Battery pp.29-37 1) Elements of Battery: a. Intentional infliction of a harmful or offensive bodily contact. i. Harmful = causes pain or bodily damage ii. Offensive = damaging to a reasonable sense of dignity b. Requisite Intent: D has necessary intent for battery if: i. D intended to cause a harmful or offensive bodily contact, or ii. D intended to cause an imminent apprehension on Ps part of harmful or offensive bodily contact. 2) Cole v. Turner: (1704) (definition of battery) a. Rule: The least touching of another in anger is battery; if touch is without violence or design of harm, no battery; any degree of violence, battery. 3) Wallace v. Rosen: (2002) (D touches students mom on back during fire drill) a. Rule: A battery is the knowing or intentional touching of one person by another in a rude, insolent, or angry manner.

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b. Explanation: Factors to consider: 1) In crowded world, certain amount of contact is inevitable; 2) Circumstances under which act is done; 3) Relations between the parties; c. Application: D touch not rude, insolent, angry; result of crowded world. 4) Restatement 13: Battery of Harmful Contact: An actor is subject to liability 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 a contact, and b. a harmful contact with the persons of the other directly or indirectly results. 5) Restatement 18: Battery: Offensive Contact: An actor is subject to liability 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 a contact, and b. an offensive contact with the persons of the other directly or indirectly results. c. An act which is not done with intention stated in section 1a does not make actor liable for intentional tort even if offensive, but may be neg. 6) Fisher v. Carrousel Motor Hotel, Inc.: (1967) (racial slur when taking plate) a. Rule: D is liable for harmful contacts with anything connected with the body that is customarily a part of the others person. D is also liable for contacts that are offensive or insulting, even when no physical injury occurred. b. Application: Ps plate was connected to his body, so intentional harmful contact with the plate can be battery, and the racial slur showed that Ds taking plate away was offensive and insulting. c. Note: What if he hadnt said the racial slur? Probably not battery. Intent is the key. d. Note: Maybe the court was getting creative, not ready for intentional infliction of emotional distress. C. Assault pp.37-40 1) Elements of Assault a. The intentional causing of an apprehension of harmful or offensive contact. b. Requisite Intent: D has the necessary intent for assault if : i. D intends to put P in imminent apprehension of the harmful or offensive contact, even if D does not intend to follow through; ii. D intends to in fact commit a battery. c. Words alone rule: accompanied by physical act or gesture, w/exceptions d. No hostility: D can commit assault even w/o hostility, w/a joke. e. Imminence: must be imminent f. Awareness: P must be aware of threatened contact g. No threat to third person: cant recover for imminent threat to 3rd party h. Conditional threat: only assault if you do not have legal right.

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2) I de S et ux. V. W de S: (1348) (beginning of assault) D didnt hit womans head, but hit door with hatchet when she stuck her head out to tell him to stop. a. Rule: Assault is when battery is attempted, but no harm is done. 3) Western Union Telegraph Co. v. Hill: (1933) (sexual assault from behind counter) a. Rule: Every battery includes an assault, but an assault does not require a battery to complete it. Assault requires an attempt to commit a battery, incomplete by reason of some intervening cause. b. Rule: Assault is an intentional, unlawful offer to touch the person of another in a rude, angry manner under such circumstances as to create in Ps mind a well-founded fear of an imminent battery, coupled with the apparent present ability to effectuate the attempt, if not prevented. c. Application: Counter size indicates that D may not have been able to reach P from behind counter, but could have reached 6 to 18 inches, so it is a question for the jury. D. False Imprisonment pp. 40-50 1) Elements of False Imprisonment a. Direct restraint of a person of physical liberty b. Unlawful without legal justification 2) Big Town Nursing Home, Inc. v. Newman: (1970) Nephew put P in nursing home D, they wont let him leave, restrain him with insane, finally escapes after 3 months. a. Rule: False imprisonment is the direct restraint of one person of the physical liberty of another without legal authority. b. Application: D directly and unlawfully restrained P. 3) Parvi v. City of Kingston: (1977) P was drunk and the cops put him in their car and took him to a park outside of town, he walked and car hit him. a. Rule: P must be conscious of the false imprisonment. b. Application: Just because P has no recollection of being forced into police car does not mean that P was not conscious of it at the time. c. Dissent: P doesnt remember anything, so no proof of FI. 4) Hardy v. LaBelles Distributing Co.: (1983) P was accused of stealing a watch from employer D. She was brought into room to discuss. a. Rule: 2 key elements of false imprisonment: 1) restraint of individual against his will, and 2) unlawfulness of such restraint. b. Application: P did not ask to leave, not told she couldnt leave, not threatened to make her stay, so no false imprisonment. 5) Enright v. Groves: (1977) (P arrested for failure to give license to cop) a. Rule: False arrest arises when one is taken into custody by a person who claims but does not have the proper legal authority. b. Application: P was arrested not for violation of dog leash ordinance, but for failing to produce drivers license, which was unlawful, so FI applies c. Note: Its harder to hold someone liable for FI than it is for negligence higher standard before getting into punitive damages. 6) Whittaker v. Sandford: (1912) D took P in a yacht to Maine, wouldnt let her off the boat until she re-committed to the religious sect.

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a. Rule: False imprisonment requires that the actual restraint is physical; turning the key to a door and thereby preventing a person in room from leaving it is simplest form of false imprisonment. b. Application: Preventing P from using the row boats to get to shore was like turning the key and locking someone in, so it would be FI. E. Intentional Infliction of Mental Distress 1) State Rubbish Collectors Assn v. Siliznoff: (1952) (Beginning of intentional infliction of emotional distress) D had picked up trash not in his area, and P threatened to beat him up if he didnt pay out earnings from that account. Not battery, assault (bc future threat), and not FI, so a new tort is invented. a. Rule: Elements of first version of IIED: 1) intentional; 2) subjects another to mental suffering from serious threats to physical well-being; D is liable for resulting bodily harm as well. b. Application: P caused D to suffer extreme fright, so liable. c. Note: Two knocks to IIED: 1) opens door to many frivolous lawsuits on this claim; and 2) emotional distress is hard to prove. d. Note: Does not require physical injury. 2) Slocum v. Food Fair Stores of Florida: (1958) Store clerk D told customer P that she stinks and was rude to her in store. a. Rule: IIED Elements: 1) intentional (act is done for the purpose of causing the distress or substantially certain it will result); and 2) must be SEVERE emotional distress. b. Application: Emotional distress was not severe, so D is not liable. 3) Harris v. Jones: (1977) P had a studder, his boss D made fun of him regularly. a. Rule: Test for IIED: i. Conduct must be intentional or reckless; ii. Conduct must be extreme or outrageous; iii. There must be a causal connection between wrongful conduct and emotional distress; iv. Emotional distress must be severe. b. Application: That the emotional distress was severe was not established by legally sufficient evidence justifying submission of case to jury. c. Note: With most torts, severity is used for damages, but with IIED, severity is required to recover. If not severe, no recovery. d. Policy: Court is trying to limit IIED to very serious cases; does so by focusing on outrageous behavior and severe. 4) Taylor v. Vallelunga: (1959) (bystander IIED) P watched D beat up her father a. Rule: P must intend to cause the distress in D or must know with substantial certainty that the distress will result. b. Application: No evidence that suggests that D beat up father to cause severe emotional distress in P, or that D knew that it was substantially certain that his act would produce severe emotional distress in D. F. Trespass to Land pp. 67-75 1) Elements: a. Unauthorized entry into anothers land

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b. which interferes with the owners right to exclusive possession of property. 2) Dougherty v. Stepp: (1835) (early trespass case) a. Rule: Every unauthorized entry into the land of another is trespass. b. Application: D trespassed, so even the treaded grass counts as damage. c. Note: Must be intentional, different than negligent trespass (which requires a show of injury). 3) Bradley v. American Smelting and Refining Co.: (1985) (difference between trespass and nuisance) Invisible molecules of copper on Ps land from the copper smelter nearby. a. Rule: Trespass applies when there is an intrusion that interferes with the right to exclusive possession of property; Nuisance applies when there is an intrusion that interferes with the use and enjoyment of property. b. Rule: When particles dissipate, no trespass; when particles accumulate, trespass. c. Application: No case because it would result in litigation from all surrounding area. 4) Herrin v. Sutherland: (1925) (shooting bird over Ps property is trespass) a. Rule: Whoever owns the land possesses all the space upwards to an indefinite extent. b. Application: Shooting in Ps air was trespass to land, D is liable for nominal damages. 5) Rogers v. Board of Road Comrs: (1947) (continuing trespass = user overstays welcome) D failed to remove snow fence post that they promised to remove at end of snow season, and it caused Ps husbands death. a. Rule: Continuing trespass happens when a person fails to remove a structure, chattel, or other thing once the consent has been terminated, or the purpose of the thing has been accomplished. b. Application: So D is liable for leaving the post on Ps property after snow season. G. Trespass to Chattels pp. 75-81 1) Restatement 218: One who without consensual or other privilege to do so, uses or otherwise intentionally intermeddles with a chattel which is in possession of another is liable for a trespass to such a person if, a. he dispossesses the other of the chattel, or b. the chattel is impaired as to its conditions, quality, or value, or c. the possessor is deprived of the use of the chattel for a substantial time, or d. bodily harm is caused to the possessor, or harm is caused to some person or thing in which the possessor has a legally protected interest. 2) Glidden v. Szybiak: (1949) a. Rule: b. Application: 3) CompuServe Inc. v. Cyber Promotions Inc.: (1997) D used CompuServe equipment to send out SPAM. CompuServe warned D, D increased SPAM.

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a. Rule: Physical damage is not required for trespass of chattel. Impairing the condition, quality, or value of the chattel is enough. b. Application: Value of CompuServes equipment is diminished even though it is not physically damaged by Ds conduct. H. Conversion pp. 81-90 1) Pearson v. Dodd: (1969) a. Rule: b. Application: XIV. PRIVILEGES, pp 91 -130 A. Consent 1) Mohr v. Williams: (1905) (right ear instead of left ear) P consented to operation on left ear, but after P was under anesthesia, D surgeon saw that the left ear was fine but that the right ear needed surgery, so he operated. a. Rule: b. Application: c. Note: 2) De May v. Roberts: (1881) Ps doctor brought a friend D to her house. P thought D was a doctor. D held her hand during procedure. P sued D for battery. Ds defense was that there was implied consent. a. Rule: Ps consent based on fraud or misrepresentation about D does not preclude P from taking action against D after ascertaining true character. b. Rule: But fraud or misrepresentation as to a collateral matter, rather than the essential character of the act itself, will not invalidate consent. c. Application: D represented self as doctor, so consent is invalidated. d. Note: P has to prove that, had P known, would not have consented. B. Self-Defense 1) Existence of Privilege 2) Retaliation 3) Reasonable Belief 4) Provocation 5) Amount of Force 6) Retreat 7) Injury to Third Party C. Defense of Others 1) Nature of Privilege 2) Reasonable Mistake D. Defense of property 1) Katko v. Briney: (1971) P broke into Ds old vacant farmhouse to steal old bottles to sell. D had set a spring shotgun in the room that fired upon entry. P sued D for battery. Ds defense was that he was defending his property. a. Rule: Defense of property is not a valid defense to intrusion to property unless the intrusion threatens death or harm. b. Application: P posed no threat of death or harm to D, so defense is not validated. P wins.

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E.

F.

G. H. I.

c. Note: Brings up issue of how much we value property versus how much we value life. Recovery of Property 1) Hodgeden v. Hubbard: (1846) P had purchased a stove on credit. D immediately realized that P has misrepresented assets. D caught up to P, took stove by force. P drew a knife, was forcibly held while D took stove. a. Rule: Some reasonable force is allowed to recover property. b. Application: It was still Ds property, title had not passed, and force was reasonable. 2) Bonkowski v. Arlans Department Store: (1968) P was detained by Ds detective after leaving store, saying he was tipped off that she had stolen jewelry. She showed him contents of her purse and receipts, and she had not stolen anything. a. Rule: b. Application: Necessity 1) Surocco v. Geary: (1853) a. Rule: Some circumstances require the individual rights of property to give way to the higher laws of impending necessity. b. Application: 2) Vincent v. Lake Erie Transp. Co.: (1910) D docked his steamship to Ps dock in the time of a storm. There was no tug, so D used Ps dock, and it damaged the dock. a. Rule: b. Application: Authority of Law 1) Arrest Discipline 1) Parent and Child Justification 1) Sindle v. New York City Transit Authority: (1973) a. Rule: b. Application:

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