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Table of Contents
Table of Contents...................................................................................1 Intentional Torts....................................................................................2 Assault................................................................................................................ 3 Trespass to Chattels.............................................................................................5 Necessity as Defense.............................................................................................6 Exception to Duty: Duty to Rescue and Duty to Control Others.............................8 Reasonable Person..................................................................................................9 Negligence: Assessing the Reasonableness of Conduct........................................11 Causation: Proximate Cause (PC)..........................................................................13 Contributory Negligence; Intervening Cause.........................................................14 Res Ipsa Loquitur; Strict Product Liability..............................................................17 Product liability......................................................................................................18 Land Owner...........................................................................................................20 Vicarious Liability; ................................................................................................ 21 Statutes of Limitations.........................................................................24 Damage...............................................................................................24 Defamation..........................................................................................26 Intentional Infliction of Emotional Distress............................................27 Negligently Cause Emotional Distress....................................................28 Invasion of Privacy...............................................................................29 False Light...........................................................................................29 Fraud...................................................................................................29 Tortious Interference with Contract.......................................................31 Appendix ............................................................................................32
Battery & Assault
1. Definition: Intentional infliction of a harmful or offensive bodily contact upon a person (Garratt v. Dailey) Or the imminent apprehension of such a contact 2. Elements of Battery A. Touching (or Contact) a) Contact must be unlawful and unconsented b) It could be P is touched by a third party or a thing, for example, a ground. (Garratt v. Dailey) c) D must know with “substantial certainty” that the act will cause contact (Garratt v. Dailey) d) Actual physical contact is not necessary I. Can be contact with P’s clothing or an object connected with P’s body (Fisher v. Carrousel Motor Hotel Inc.) e) Injury from the touching is not required (Example: D spitting on P) B. Intent a) Intent to cause contact or imminent apprehension b) D voluntarily acts for the purpose of inflicting a harmful or offensive contact on P or with knowledge that the contact is substantially certain to result. i. It is not required that D knows that the contact is substantially certain to result with P, it is sufficient that D know that the contact is substantially certain to result with someone. Example: D throw a bottle into a crowded party room. c) Intent to cause harm is not required (Lambertson v. United States) d) Intent to commit an assault e) If the intended act is unlawful, the intention is also unlawful (Vosburg v. Putney) C. Harmful (or Offensive) a) Whether a contact is harmful or offensive is determined based on what a “reasonable person” in P’s circumstances thinks, not based on what D thinks whether the contact is offensive. b) An intent could be good, but nonetheless harmful c) Motivation is irrelevant (e.g., doctor saving a patient) D. Consent a) Acts are offensive if without consent. If there is consent, then the act is inoffensive (no battery).
c) A consented-to contact is an affirmative defense E. Not privilege a) E.g., self-defense F. Imminent apprehension a) Apprehension of future contact does not support tort liability b) Imminent does not mean immediate, but means there is no significant delay c) Apprehension is the anticipation of a battery d) Fear on the part of P is not required for apprehension (or battery) e.g., A intended to hit a boxing champion, but missed. 4. The intent is not necessarily malicious (motivation is irrelevant) 6. P needs not be aware (Distinguished from assault) Example: D touching P while P is sleeping 7. Damage A. D is liable for all of the consequence of the intentional contact whether foreseeable or not, if D’s act sets in motion a chain of causation. B. P has the burden to prove the causation. (Vosburg v. Putney) a). P can recover for emotional distress b). Even if there is no harm, P can recover for nominal damage c). If the tort is willful (intent to cause harm),the actor is liable for punitive damage 9. Technical battery - for health care professionals
1. Definition: an act putting another person in reasonable apprehension of an imminent harmful or offensive contact (i.e., imminent battery) 2. Elements of Assault A. Reasonable a) Average reasonable person test - a reasonable person acting reasonably would have been apprehensive of a battery. (Bouton v. Allstate Insurance Co.) B. Apprehension of contact a) Apprehension that personal sovereignty gets violated b) Fear is not required to satisfy apprehension c) P must be aware of the imminent contact (unconscious person cannot be aware of imminent contact) C. Imminent D. Harmful or Offensive E. Intent a) Intent to make contact
False imprisonment 1. Privilege 3. Actual harm is not required to establish trespass for physical entry 4. Actual apprehension is required for assault A. Confinement within closed boundaries . Definition: Intentional infliction of a confinement 2. Seubert) B. Elements of false imprisonment A. if it causes apprehension to P. Word alone cannot constitute assault unless combined with other acts or circumstances that put the other in reasonable apprehension of an imminent harmful or offensive contact with that person. P must know of the confinement .unconscious P cannot sue for false imprisonment 3. D does not necessarily intend to act or follow through II. within U.S. Consent G. P does not necessarily have to fear c) D does not necessarily intent to harm P Example: D pointing a toy pistol at P. Doe) 4. Definition: A physical intrusion upon the property of another without the proper permission from the person legally entitled to possession of that real estate. 2. A successful plank may constitute assault. where P thought it was a real gun F.).unsuccessful plank or joke B. Requires actual damage to the property (Public Service Company of Colorado) 5. Mistake is NOT a defense in Trespass Cases 4 . If P has no apprehension. Unlawful or unauthorized entry is required 6. (Conley v. Modern trespass requires “intent” 3. or b) by threats of force which intimidate the plaintiff into compliance with orders (Dupler v. then no assault . Knowledge by person confined Trespass Trespass to Land 1.b) Intent to cause apprehension I. Act with intent to confine or restrain a) The restrain may be by means of physical barriers (Example. Intangible entry A.confinement must be inclusion not exclusion C.
Nuisance – protecting the interest in the use and enjoyment of property b. Intent: Trespass requires act with the purpose of interfering with the chattel or with knowledge that a disturbance thereof is substantially certain to occur (Texas-New Mexico Pipeline) 5 . Trespass may result from being invited on to property but then abusing and overstaying welcome 8. Difference btw Nuisance and Trespass a.7. Trespass – protecting the exclusive possession of property Trespass to Chattels 1. without justification (Texas-New Mexico Pipeline) 2. Definition: Trespass to personal property is the intentional use or interference with a chattel which is in the possession of another.
but no punitive damage (Vincent v. Privilege must be reasonable (TWEN case: Haworth v. Policy .Private necessity: Circumstances justify an unauthorized entry on the land of another in order to preserve life or property A.dueling (Teolis v.only allows P to take reasonable measure in light of the circumstances. Consent can be expressed or implied B. Co. a) Actual damage b) Nominal damage if no actual damage resulted . either the dock owner will be building less nice docks. Implied consent is very narrow . Good intention is not an effective defense B. General rule: It is necessary for D to harm P in order to prevent great harm to third persons or to D him/herself 2. Definition: If P consents to an intentional interference or contact.the difference between surgery and no surgery c) “Good intention” will be taken into account when awarding damages C. Consent in other arenas: Consent to illegal act is not an effective defense . Williams) 3. (Mohr v. Consent can be inferred 2. D is liable if intent to break the rule and cause the harm (Marchetti v. Kalish) B. the ship owner’s behavior will not change regardless 6 . Technical battery if no harm suffered 4.Defenses to Intentional Torts 1. Courts penalize those who bypass the legal remedy and take law into own hands 6.encourage disputing parts to go to courts to obtain remedy B. Lake Erie Transp. 5. then no intentional torts A. Consent in sports: A. P assumes ordinary risks of the activity and cannot recover unless D acts “recklessly” or “intentionally” C. But once the ship sails. Emergency constitutes implied consent D. or the ship owner will sail less. Policy . Elloitt) A. Medical Arena (Mohr v. Williams) A. The actor is privileged to apply only such force as reasonable man under the circumstances would believe to be necessary to prevent a further disturbance of the peace Consent as Defense: Privileges Necessity as Defense 1.encourage “free & vigorous participation” and prevent lawsuit involving backyard games. Moscatelli) A. Damage. D must pay for P’s cause damage if any.) In general.
Milwaukee Mutual Insurance Co.Whether D has an imminent threat. Distinction between taking and public necessity A. (London Borough of Southwark v.generally unplanned and in emergency circumstances. U.of what the rule is (will always sacrifice P’s property to prevent D’s own lost). Milwaukee Mutual Insurance Co. no compensation for owner 7 . Geary) b). Taking – generally planned action by government. Williams) 3.). Necessity must be sufficient . owner of property should be compensated B. D’s damage is not compensable (Surocco v. acknowledges the right to property under 5th amendment and require compensation of the owner’s lost for property taken for public use or benefit (Wegner v.): A. Public necessity (Surocco v. C.S. Geary and Wegner v. Public Necessity . jurisdiction system has Irreconcilable conflict between Surocco and Wegner a). 4.
Stevenson) 2. the court deters P from doing stupid things. you have a duty to finish the rescue. We don’t have a legal duty to donate money to rescue those children even the cost of donation is relatively low. 2. If the product is subject to intermediate examination. 3. Moral hazard #1: If P knew that D has a duty to rescue him. it is difficult for the D to know whether the P is voluntary or not. B. Example: starving children in Africa. Product liability: The manufacturer owes a duty to a consumer if the product is not subject to intermediate examination. Imposing a duty on the D would still create an incentive for the P to voluntarily jump into the ditch in order to have the D pay for the damage. In so deciding. Even if see someone in peril. Moral hazard #2: Even if the rule requires the P to involuntarily fall into danger. Bigan) Arguments for “no legal duty”: a). then the person has a duty to do it right. c). if you take action to attempt to help/rescue.Negligence Components of Negligence Duty Breach of Duty Causation Damage Defense Duty of Care 1. he would be risking his life more often and has an incentive to do less than what a reasonable person would do. (A relationship is created so that the person has a duty) A. or he would be guilty of negligence. there is no legal duty to help. b). (Donoghue v. “neighbor principle”: persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions that are called in question. Rationale: – in attempt to help could make things worse or 8 . Once a person engages in the act of rescuing others. then whoever responsible for the intermediate examination is liable. moral obligation irrelevant (Yania v. 3rd Party to utility contract cannot sue utility companies (unless it appears contract was so intended) Exception to Duty: Duty to Rescue and Duty to Control Others 1.
No such problem if the doctor informing the patient’s family. Car dealers don’t have duty to inquire. do as D did? The D does not escape liability merely because she intended to behave carefully or thought she was 9 . The doctor-patient confidentiality is to be scarified to save the greater good (i. Exception: Remedy for avoiding people to do nothing in face of emergency: A. Knowledge of Drug/Alcohol Abuse & giving $ for a car. Wilson). Entrustor – where entrustor of a chattel or $ to buy a chattel knew or should have known some reason (youth. Would a “reasonable person of ordinary prudence. only liable if they knew anyway. Good Samaritan status: NO liability if rendering emergency care in good faith. employers B. or otherwise) while entrusting the item or $ to another was foolish or negligent. storekeepers.e. The issue is where to break the chain of causation. there is a duty created to all 3rd party victims A.) B.” in the D’s position. Key is KNOWLEDGE – knew or should have known b/c foolish or negligent: a). 5. 4. In medical case: Duty is judged on the SPECIAL RELATIONSHIP between the doctor and the patient (Tarasoff v. 3. inexperience. b).deter others from helping or crowd out a competent rescuer to come help the victim. the patient’s life. or who on the chain of causation should be held liable . because it wouldn’t discourage people from seeing the doctor. b). so long as not grossly negligent. The Regents of the University of California) A. What is wrong with not enforcing this confidentiality? People is not going to the doctors to find out their genetic information and more people will die. (Vince v. even if not effective. imposing the duty Examples: Common carriers.foreseeability. c). For certain persons having special relationship with the D. dealer knew of bad driving record (Vince v. Reasonable Person 1. Wilson) B.. What is wrong with the doctor informing the insurance company about a patient’s genetic predisposition of a cancer? a). Breaching the confidentiality between doctors and patients. innkeepers. The basic problem of all negligence: Objective Standard of a Reasonable Person rather than any Subjective Individualism A.
How stupid someone is irrelevant! Always apply the reasonable person standard. General: Negligence should not be coextensive with the judgment of each individual a).holding D liable would discourage the state employer to hire blind persona and therefore would encourage discrimination. In Roberts v.Because it would result in less conduct. An argument that the D lacked ordinary intelligence failed and court applied a standard of reasonable person instead (Vaughan v. D. why didn’t the court impose more stringent standard? . If the training is specific to the person or is individualized. imposing the same “reasonable person” on minor. not necessarily more careful conduct b). By playing the factors of a “reasonable person. C. When a child engages in a potentially dangerous activity normally pursued only by adults. Linsay. because it would lead to less and also more careful conduct. It is impossible to construct a “reasonable person” with all of D’s characteristic and the jury wouldn’t be able to project such a reasonable person” with super precision. Airplane pilots are held to “minimum standard of care applicable to all pilots” = reasonably prudent pilot 10 . then the training is not part of the “reasonable person” standard ii. State of Louisiana). B. he will be held to the standard of care that a reasonable adult doing that activity would exercise.behaving carefully. b). E. the D received a training that is generally required for every blind person to operate the stand. the standard for negligence is what a reasonable person with that physical disability would have done (Roberts v. a child is help to the level of conduct of a reasonable person of that age and experience b). Policy . State of Louisiana. a). Menlove). In Robert. G. In Robinson v. In general. it is therefore part of the standard. Physical and mental characteristics: If D has a physical disability. b). “Reasonable Person” standard is not based on individual training a). Children a). Particular Training or Experience of Professional is Irrelevant i.” the court can change the standard in each case and thereby selectively encouraging or deterring certain conduct. F.
Ford Motor Co. truck driver Negligence: Assessing the Reasonableness of Conduct 1.e. Carroll Towing Co. b). pilot. Grimshaw v. If a doctor use innovative technique which is not supported by industrial custom and the patient die.Ford is gambling one’s life v.. If the cost of taking precaution is less than the cost of the lost.D liable for negligence only if the conduct violate the statue and results in damage that the statue is designed to prevent The Hand Formula 1. will be suggestive but not conclusive evidence that D was negligent. B.S.) B. one is gaming his own life. The doctor is difficult to defense against negligence. e. is B<PL? 3. Essentially: Cost of precaution < Benefit of precaution D is liable 2. This policy limit the patient’s options 2.c). Example: D can be liable if the custom is stupid (i. P shows that others in D’s industry followed a certain precaution that D did not. L=cost of injury] A. Causation: Cause-in-Fact 1.. v. Whether B < PL [B=cost of burden. bleeding the patient in medical industry). there are more individualization in “reasonable person” in medical industry while the “reasonable person” standard are rather uniform in other areas.g. A. then D has a duty to take the precaution. Evidence by P: a). The jury is still free to conclude that the industry custom is unreasonably dangerous and thus negligent. Hooper) b). Statutory Violation Causing Damage . P=probability of accident. lawyer. (T.J. Exception: medical industry (highly specialized areas) Because medical industry are highly specialized whereas most other industries are generalized. c). (U. Evidence by D: a). Custom: Custom of an industrial is relevant but it is not dispositive. . D shows that everyone else in the industry does things the way D did. B and PL are calculated at margin: for every extra measurement designed to lower the possibility of harm. Generally: P must show that D’s conduct was the “cause in fact” of P’s injury 11 .
By the surgeon only causes extra 3% of deaths. “But for” test: But for D’s conduct. Downside of the decision: Asymmetric Damage a). Often is awarded when there is a single indivisible injury w/ an unknown specific cause a). then P win. If P prove that there is a 49% of chance. Inc. Richardon-Merrell. Use the national market to determine the market share to get a plat rule. both are negligent regardless which one actually hit the P and caused the injuries. D. Tice) b). Liability for reduced chance (Falcon v. then P lose 4. Failure to Identify the Specific Actor A. the court will require each of the D’s to pay that percentage of P’s injuries which that D’s sales bore to the total market sales of the that type of product at the time of the injury ii). a). Joint Tortfeasors – when multiple D’s act negligently. 52% die and sue and win. ).P must show that it is more probable than not that P would not have been injured but for the defendant’s negligence 3.) i). Eli Lilly & Co. Redefined the concept of lost: D is liable for increasing the probability of death if P proves more probable than not D decreased the P’s opportunity of survival. Joint torfeasors: There can be multiple “but for” causes of an event (Richardson v. usually: 51% patients survive. D’s tortious conduct does not “cause” P’s harm in a “but for” sense. but D’s have incentive to pick the market with the most maker so that they has the smallest share. so only 3% should have been compensated. courts may impose joint & several liability. Memorial Hospital) A. 12 . P’s injury would not have resulted . but the specific CIF is unknown. If P proves that there is a 51% of chance that the drug can cause birth defect. each D can prove out that he did not cause the injury and therefore is not liable (Summers v. but can show that all produced a defective product. B. for incompetent surgeon: 48% patients survive. Court shifts the burden of proof of non-negligence to the D’s. Joint & Several Liability – each D is held liable for the entire amount of the P injuries. Market Share Theory of Products Liability (Hymowitz v. it is up to D’s to apportion the actual payout among the them b). but merely reduces P’s chances at a favorable outcome B. Shooting Accidents – when two people both shoot at a 3rd.2. If P cannot prove which of the multiple companies caused the injuries. 5.
no matter how slight. Generally – after a P has shown that D was CIF of P’s injuries. both fires are substantial factors and thus cause-in-fact of any resulting damages (Anderson v. even a D did not sell the drug to P. naturally caused fire. The PC requirement is a policy determination that a D. from the same forces. Eliminate the incentive for D to prove out. and either one would have been sufficient to cause substantially the same harm without the other. a). so long as the damage is in fact directly traceable to the negligent act.e. and to the same class of person b. ii) Requires foresee some damage. P will not recover entire amount of damages because all possible D’s will not be joined. iii) A high level of forseeability (Kinsman Transit Co. The D owed a duty to all potential P’s w/in the ship’s destructive power. The court does not allow prove-out. Court generally keep the “frame” of the foreseeability questions at a relatively high level (damage of same general sort) iv) Exception Rule: once P suffers any foreseeable impact or injury. even though specific P was unknown and the exact development was unforeseeable c. Otherwise no negligence the fact that the damage it causes is not the exact kind of damage one would expect is immaterial. even one who behaved negligently. Foreseeability i) Generally . D is liable for any additional unforeseen physical consequences 13 . One should be liable for a large risk of small damage AND a small risk of large damage. of his act. proximate cause). Minneapolis) Causation: Proximate Cause (PC) 1. Different level of details leads to different results (conclusions) of foreseeability (i. When two events concur to cause harm. should not automatically be liable for all consequences. 2. C.“substantial factor” test A. D still need to pay for the portion of the damage. Multiple Causes (concurrent causes) . no matter how improbable or far-reaching.D is liable only for those consequences of his negligence which were reasonably foreseeable at the time of D’s act.) a. of the same general sort.. If D’s Railroad caused-a-fire that merged with another already existing. iv). which can potentially increase social costs.iii). P must show that D was the Proximate Cause (PC) of those injuries. EACH of the concurring events is deemed a cause in fact of the injury since it would have been sufficient to bring the injury about.
even if only small risk foreseen. Intervening Cause 1.. D only has duty to P to prevent P from foreseeable harm) Contributory Negligence.D is not liable for injury to an unforeseen plaintiff (Palsgraf v.D’s are not required to anticipate the intentionally malicious acts of others but are required to assume the negligent acts of other parties (Watson v. vi) Foreseeable Plaintiff . Jeckovich). Wagon Mound 1 . Duty and Negligence are correlative i. D can’t owe a duty to an unforeseen P ii.a. and the damage to her was unforeseeable. Ex: car crash that produced no physical injuries but exacerbated a mental condition. If Duerr acts unintentionally-Marginal benefit very high because many people like Duerr would unintentionally light up gasoline 14 . Where a D creates a foreseeable & unreasonable risk of danger to a foreseeable class of P’s.D is liable for oil spill which destroyed P’s vessel b/c the damage was foreseeable to a reasonable chief engineer. foreseeable ii) The court play with the level of generality or specificity to deter certain acts -How to generalize the foreseeability question depends on whether the 3rd party has intent iii) Marginal benefit of deterring certain act by holding Duerr liable a. A defendant must take a plaintiff as he finds him and hence may be held liable in damages for aggravation of a preexisting illness. v) D is liable for all damages that are reasonably foreseeable at time of action a. there was foreseeable small risk (i. and D is indeed negligent. But D would also argue that so is P (contributory negligent). RKO General) 2. b.e. Holding . D’s conduct was not the PC of P’s injuries thus no recovery b.since D’s conduct did not involve an unreasonable risk of harm to P. Malice v. Caveat: If the consequence was very much foreseeable. Negligence . Long Island RR) a. KY & IN RR) i) If intervening cause is malicious.D not liable for oil spill that destroyed P’s wharf b/c no reasonable person could foresee that the damages would result from the actions of the D b. not foreseeable. D liable (Barolone v. intervening cause will not cut of P’s liability (Weirum v. then D would argue that the consequence is clearly foreseeable. Wagon Mound 2 . D does not owe a duty of care to P to prevent P from unforeseeable harm. still liable) c. (i.e. if negligence.
If Duerr wanted to burn down the city. Soldier of Fortune Magazine) 4. is liable for injuries inflicted on a 3rd party as a result of the negligent operation of a motor vehicle by the guest when such negligence is caused by the intoxication (Kelly v. liability will not be severed (Braun v.b. then Duerr is more important because even Duerr did not light up the gasoline.Encouraging the host to get insurance 5. If Duerr act intentionally .The marginal benefit is low because not many people would intentionally light up gasoline iv) Deter certain act depends on holding how liable a.Because the court wanted to deter both the driver and host ii) The allocation of liability to both or to only one of them depends on who is at the best position to avoid the consequence a. 15 . Reasons for holding the Social host responsible . Contributory negligence based on Hand formula i) Hand formula calculated at margin. If Duerr act unintentionally. he could also find some way to destroy the city 3. the railroad is important here because even if Duerr did not light up the gasoline. someone else would do it b. Foreseeable Criminal Acts – where a criminal act is foreseeable. Gwinnell) i) Why suing the driver as well as host . Social Host Liability – a host that serves liquor to a guest. knowing both that the guest is intoxicated and will thereafter be operating a motor vehicle.
a. 4. PL) of precautions (B). Safe category . If it a non-natural use of the land.Strict Liability (Absolute Liability) 1. the keeper must have a reason to know that it is dangerous in order to establish negligence (Marshall v. or unlawfully B. Ultra Hazardous Activities (Fletcher v. Wild or other dangerous animals b. Disadvantage: Moral hazard . Ranne). Unsafe category . Historical (traditional) strict liability: a. then D is liable for all the damage it caused. Separating the animals into categories and making the decision base on he categories.Never dangerous b). The act of keeping the lion is inherently dangerous. a). Does strict liability still make sense? a.NO need to ask if the owner knows it is dangerous and the owner is strictly liable.P keeps a lion in his backyard and the lion is very important and value to him. The people’s palace and aquarium company) A. Wild or other dangerous animals (Filburn v. Strict liability does not require either culpability or responsibility 2. Liability without requiring proving that D is acting unreasonably. The benefit of keeping it is almost always outweighed by the probably lose caused by the lion 6. Categories of animals .P can be contributory negligence but be free from liability. Rylands) A. then D is not liable. Definition A. Advantage: Cause D to change activity level to the socially optimal level 5.Always dangerous . B. (Because D is strictly liable) b. Hypo .need to ask if the owner knows the animal is dangerous. Any precaution beyond that is not guarantee. Strict liability only provide up to a limit (the maximum damage caused by the act. If the reservoir is a nature use of the land. negligently.Could be dangerous . Negligence indicate some degree of culpability or responsibility B. Ultra dangerous activities c. c). The strict liability assigns an responsibility to D with or without negligence. Product liability 3. Distinction from negligence: A. 16 . If the animal is not dangerous by nature.
. c. no liability (Turner v. 262) 17 . It is more probable that D’s act causes the loss than freak chance. Strict Product Liability 1. The profession should bear the loss. Concurring opinion: Even without negligence.P did not assume the risk because he had no reasonable choice . Policy reasons: P should get recover.) 8. v. Ranne). Elements of Res Ipsa Loquitur .The accident is attributable to D (D has exclusive control. Difference between court and P: The level of generality applied to the circumstance (P.i). Fireman’s Fund Insurance Co. Gig Lake Oil Co. Coca-Cola Bottling Co. Medical malpractice (Ybarra v.P did not assume the risk of being attached on his own property Res Ipsa Loquitur.) A. Natural use should mean: ordinary/common use of the land 7. Policy Supersedes Strict Liability – if the activity is related to a vital activity of the surrounding area. and therefore it is liable. if you damn up a river and it floods ∆ is strictly liable for all resulting damages ii). no liability. Lump all Ds together because it is difficult for P to prove the loss was caused by one of them as P was unconscious. RIL skips right by “proximate causation” because it is unknown what caused the injury. D knows the explosives is dangerous and he created the risk of explosion. Spangard) a. Natural is not exactly non-artificial (non-man-made): Swimming pool example iii). Rejects the Restatement Factors b/c too much like negligence and instead relies on precedent stating that if you store explosives you are strictly liable E.) A. If a naturally occurring lake on property floods. b. it is better to have the manufacturer to pay for the damage when the injury occurs and distribute the costs among the public as a cost of doing business. C. not P) . 4. Allow assumption of risk defense (Marshall v.The injury not something that ordinarily occurs without negligence (injury happened someone was negligent) 2. or B. Storage of explosive materials (Yukon Equipment Inc. 3. 9. Give each D a chance to prove it out.” it is more reasonable to hold D liable and allow D to prove himself out .better incentive than the alternative. Between holding D liable and choosing “freak chance. Logical elimination process underlying Res Ipsa Loquitur (Escola v.
No. Three theories: . 2. Kimwood Machine Co. Manufacturing defect (Escola v. and the product is no more dangerous than the level that consumers expect. Design defect: The line of products are all bad due to the design problem.Negligence . Manufacturing defect: Something is wrong with a particular article. because the consumer expect that Ferrari is dangerous. Why the reasonable seller standard” .) C. Kimwood Machine Co.Because consumers are not completely rational and sometimes dumb.Strict product liability (a combination of strict liability and negligence. consumers will sometimes make unreasonable choices. Design defect (Phillips v. which is different from other articles in the same product line (Escola v. Court’s reasoning: a.) 3. A reasonable seller will not sell a product that a reasonable seller knows or should have known that the product is unreasonable dangerous b. B.Warranty (contract theory) . Kimwood Machine Co.) A. because of a defect.) 4. The product is unreasonably dangerous for its intended use. Definition: A seller of a product which. Or the product will be foreseeablely misused. causes injury to a consumer. but the design is dangerous if it can be predicted that it will be misused. is it ordinarily the result of negligence? Product liability 1. General product liability claims: A. Coca-Cola) B. Coca-cola) 5. Holding 18 .P: Does something rarely happen? Court: When something happens. (Phillips v. Therefore. Failure to warn: The design is by and large on the whole fine. C. Ferrari example: Should manufacturer be held liable for producing Ferrari that goes over 300 miles per hour? . The P can be the purchaser or a user who has no contractual relationship with the seller. (Phillips v.
reasonable consumer test: the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. only the contracting party can sue the other party B. A balance between negligence and strict liability: Two tests: a).The cost of putting up a warning is practically nonexistence while the possible injury is relatively high (B<PL) D.The manufacturer should have provided a warning .) i. On the other hand. ii.. There is no difference in activity level between charging D negligent or strictly liable D. The seller only needs to warn something that he found or could have found out B. alternative design test: The design’s dangers outweigh its utility (B<PL) ii. the court did not want to be paternalistic and telling the consumer what should or should not have by imposing the “unreasonably dangerous” standard. C.. F. or b). Privity requirement (Henningsen v. Lull Engineering Co. the product is dangerous without the warning.the member of the household could sue for product liability 19 . Baxter Healthcare Corp. The court did not want to use “unreasonably dangerous” and gauge the danger from “reasonable consumer’s” perspective because the consumers are dumb and using “unreasonably dangerous” standard makes things more complicated.Strict liability: Focus on the product itself: whether the product is unreasonably dangerous E. 7. 6.g. Sellers have to tell the consumers the risk even if the sellers don’t know but could have known about it (e.) A. Distinction between negligent and strict liability . How to prove the design is defected (Barker v. Normally. A manufacturer also has a duty to perform reasonable testing prior to marketing a product and to discover risks and risk avoidance measures that testing would reveal. by way of testing). Court: Relax the privity requirement specifically for the purchasing case . The seller were entirely reasonable in selling the product without a warning considering what he knew or should have known at the time of the sale. Failure to warn (Vassallo v.Negligent: Focusing on the manufacturer’s conduct . However.) A. Bloomfield Motors. Inc.
Christian). failure to warn. . Abandoning the traditional rules differentiating invitee and licensee B. the court uses the rule of negligence to evaluate the landowner’s conduct and require the high degree of care b. sue both the manufacturer and the dealer b. Nature event occurs outside the land (Sprecher v. Black letter: . A.For places where trespasser usually enter (back of the store). failure to warn or to repair the condition constitute negligence.For places where invitee/licensee usually visit (supermarket). General definitions of “trespasser. On the other hand. 2. a.States are evenly divided between the traditional approach and the negligent approach .The land owner will change their behavior according to the hand formula B<PL .Effects of the new rule . and breach of implied warranty at the same time Land Owner 1. . The status of the guest does not change the duty of the host owed to the guest. . Adamson Cos.) 20 . Essentially.” “invitee” and “licensee” and distinction between “invitee” and “licensee” (Rowland v. Problem: will impose too high a cost on land owners because they have to take “high degree of care” all the time. D. New rule: where the occupier of land is aware of a concealed condition involving in the absence of precautions an unreasonable risk of harm to those coming in contact with it and is aware that a person on the premises is about to come in contact with it. trespassers are few.C. sue strict liability. they still use traditional approach for trespassers. In product liability a. the landowner will take high degree of care because of private interest (damage and reputation): high P and high L. because most visitors are not trespassers: low P and low L. The court encourages people to take more care by imposing high degree of care onto land owners just like everyone is invitee (the highest degree of care among the three categories): C.Even for those states that switch to negligent approach. in generally. the landowner will take less degree of care because the possibility of accident is low. negligence.
Lannon A. (TWEN case)) . The robber did not break the chain of causation B. Inc. the method of commuting). Restatement tests (O’Toole v.The landowner isn’t liable for trespassers for the danger on the land unless the trespasser is a child . the employee's violation of instructions being no defense to the employer. Comstock Homebuilding Companies.The employer lacks direct control on and interest in the employee’s conduct with respect how to get to and from the work (e. Purpose to benefit the employer 4. The precautions should be taken by the land owner C.The justification for the rule . If an employee is negligent while acting in the course of employment and such negligence is the proximate cause of injury to another. Pacific Western Mobile Estates. Vicarious Liability. Carr): 1. B.A. Taco Bell v. 1.. Trespasser exception (Crawford v. B. 2. Acting in the scope of employment (Estes v.Conducts that directly further the employer’s benefit . exercised due care in the supervision and direction of the employee. Court relied on a general rule that commuting to and from work is not a part of the employment relationship . notwithstanding the fact that the employer. Inc. New rule: The land owner has a duty with regard to natural conditions of land 3. social utility of not taking precautions is usually outweighed by the risk (B<PL). the employer is liable in damages under the doctrine of respondeat superior. General Rule: An employer is liable for an employee’s negligence if the employee is acting within the scope of the employment. Holding: cost of precaution is low.Definition of attractive nuisance: landowners only liable for damage caused by artificial attractions 4.Conducts that are incidental to the employer’s business A. Space and time limits 3. the landowner has no duty. 3. The employer has a right to indemnify the employee (collect the money) after paying for the judgment. 21 . The kind of work employed to perform 2. himself.g. Traditional common law rule: for natural event occurs outside the land.) .
P does not get recovered. P did not assume the risk of being attached on his own property 5. 3. i). Risk/utility balance . Voluntary Assumption of the Risk iii). Joint and several liability regime save P leg works because P can collect the entire damage from any of the D’s. courts has done away with voluntary assumption of risk. joint and several liability is used only when D is at fault more than P (50% rule) Contributory negligence. . then P gets recovered. then we should be able to reasonably allocate liability between Ds. B. P still get recover. 2. They are misinformed about the product iii). Contributory liability: P has to collect the portioned damage from each of the Ds. Wood). Problem with joint and several liability in this case . Actual and constructive knowledge (Goepfert v. consumers are dumb B. And one of the D can sue the other D later to recover (Walt Disney World v.Producers are required to prove that the product is safe in order to show no liability. In most states. Filler) 22 . Actual or Constructive Knowledge of specific Risks ii). Two tests A. Ordinary consumer expectation: Three reasons for a consumer to buy a product: i). If the assumption of risk is reasonable. Joint and several liability: P can collect the entire damage from any one of the Ds.Joint and Several Liability 1. If we cannot reasonably allocate the damage between Ds. Assumption of risk 1. Appreciation of the Character of the Risk 3. If we can reasonably allocate the damage between P and . 2. A. However. Requirements for Assumption of Risk i). 4. if the assumption of risk is unreasonable.In some states. Because they like the design ii). P did not assume the risk because he had no reasonable choice ii). ii). Ranne). Difference in applying contributory negligence rule. if P has no meaningful alternative. (Marshall v.Logical tension between contributory negligence and joint and several liability: i). then how can we allocate the damage between P and D. In comparative negligence. assumption of risk can still completely bar recovery.
In general. . . Factor 2: The degree of specificity that P can foresee the risk. Difficulty in distinguishing generic knowledge from the knowledge about a specific risk (a full appreciation of a character of the risk) Example: A had a coin toss with B. enforcing strict liability would not cause moral hazard problem.A. When A uses a bias coin (B has not yet appreciate the character of the coin toss) Voluntary Assumption of Risk in the Context of Strict Product Liability 1.How many different kinds of bad outcomes? . Downes). 6. therefore the hospital’s act is not a superseding cause. even if he Risk is divided into two parts (Ray v.Foreseeability: Did the D foresee that his negligent driving will cause the injury to the P? Probably yes.The degree of concreteness of what would happen C. 7. Court’s response to the moral hazard problem caused by strict liability .If there is no breach of duty. P only assumed risks inherent to the activity . Proximate causation .): Potential problem: moral hazard A. When A uses a fair coin (B has generic knowledge about losing money in a fair bet) ii. Constructive knowledge: by looking at the circumstance and it seems to be obvious to say that the P knows the risk a).The judge assumes that consumers are stupid and can’t help themselves. 2) the risk created by D’s negligence. factor 1: Is there breach of duty on D’s part? . Actual knowledge: hard to determine that P has actual knowledge of something B.specificity (specific risk): Not only that the injury will result. Therefore.the claim of voluntary assumption of risk predicates on breach of duty b). Risk has two parts: 1) risk inherent in the activity. 23 . Contributory negligence is not a complete defense to strict product liability (McCown v. so they need to be protected. International Harvester Co. then voluntary assumption of risk is useless (primary assumption of risk is useless) . but not D’s future negligence. does B voluntarily consent to losing money to A? i. but also how it would result and in what way it would result.
majority of jurisdiction has done away with assumption of risk. For those jurisdictions still applying contributory negligence. It can be recoverable only if something other than the laptop (e.. Consolidated Rail Corp. Limitation of liability (People Express Airlines v. Statues of limitations is a procedure defense 2. assumption of risk is still an effective defense to negligence or strict liability. so that P did not know the injury until long time later . An identifiable class: 24 . a cup nearly) is damaged by the explosion.B. They are misinformed: taken care of by “falling below consumer expectation” standard. 2. Discovery rule: time starts running at time P discovered the injury 5. when could P sue for battery: When D introduced the poison into P’s body without consent 4. If D poisoned P using a slow poison. ii). it is not recoverable for economic damage. 2.) A.reasons to buy a product i). Under traditional rule. They like a design: judge does not believe so and shift the burden on the producer to prove that the design is good. Damage to property . General Motor Corp. for these jurisdictions. Comparative negligence reduce recovery (Daly v. P would be barred from suit 6. The theoretical time when P could file a suit (all of the elements of the suit are available) 3. They are irrational: judge assume this is true.consuming substance that does harm to P’s body by increasing the possibility of developing cancer. What does “injury” mean in this case . does not mean cancer itself Damage 1. iii).Example: If I bought a Dell laptop and it exploded on itself. so enforcing strict liability would not cause moral hazard problem. Modern life has many delayed factors.g.) 3. Foreseeability is a little problematic: The line could be arbitrary and there could be an unlimited chain of after effects that tend to impose unlimited liability B. Consumer’s behavior. Statutes of Limitations 1. judges need to play with duty/breach/causation 4.
Foreseeable in terms of: a). One example: define the foreseeable class based on the area within a certain radium of the fire. assuming P has been fully compensated A. 3. the question is what do we do with the rule.If compensation is too low.D owes a duty of care to take reasonable measures to avoid the risk of causing economic damages. it gives D too little incentive to take precaution .If compensation is too high (higher than the actual damage PL). Problem with compensatory damage . The certainty or predictability of their presence c). Punitive Damage (BMW v. How many exceptions that need to be invented to get around the rule. The approximate number of persons d). The plaintiff would have to define the foreseeable class of person in which plaintiff would fall. Justification for punitive damage: Reason 1: The law of economic The D’s conduct injures not only the P in this case. ii. per day wage to bear the pain B. Not all sate have the same rule of pure economic loss. D. 4. Without pure economic loss rule.by way of survey . Gore): Not attempt to compensate the P. It is possible to quantify pain and suffering . E. C.Per Diem.judges and legislator hate it. Pure economic loss rule has some arbitrary element in it. 5. Degree of Reprehensibility of D’s conduct 25 . to particular Ps comprising an identifiable class with respect to whom defendant knows or has reason to know are likely to suffer such damages from its conduct. then D would take too much precaution. The punitive damage is awarded to punish the D. Pain and suffering damage (Seffert v. Los Angeles Transit Lines) A. how would the plaintiff argue “proximate cause” in order to prevail in a negligent case: i. Example: Theft B. Three Part Analysis to Determine Whether Punitive was “Excessive” 1.The variant of the number is huge . aside from physical injury.paying enough money would eventually induce people to voluntarily bear the pain and suffering . The punitive damage is awarded to compensate these unclaimed torts. The type of economic expectations disrupted. Reason 2: The D has done something wrong. The type of persons or entities b). Quantification of pain and suffering: How much people are willing to pay to avoid pain and suffering . but also other people.
Does not require pleading of special damage Slander .Require pleading of special damages unless falls in per se categories 2.Statement of facts (false statement) .Liable per quod require considering facts not set forth in the publication .Unchastely of woman 4.Of and concerning plaintiff .Loathsome Disease . Two situations in Defamatory statement 26 .Criminal conduct . and high degree of quantification to satisfy. 6 What does the court have to decide: A. the person passing the statement will be liable 3. If the statement is ambiguous (does not fall into any of the four categories). Under traditional common law rules: P only has to “plead” a statement is false and it is D’s burden to prove the statement is true.Caused by written statements . Prima facie case of defamation: . 2. impossible to quantify B. Definition of libel and slander Libel . Marchello) A. Liable per quate and liable per se . Sanctions of other Law Look at civil & criminal sanctions for the activities Defamation 1.Published (or communicated to someone else other than P): If only passing on a rumor or repeating someone else’s statements. Exception of special damages .Caused by written statements .Economic Damage or Personal Harm? Criminal actions? Etc. Special Damages (Matherson v. Decide if the statement is defamatory as a matter of law (four categories) B.Trade or profession . 5. particularity.Liable per se is apparent from the fact of the publication itself. Requires very high specificity.Four per se categories . Ratio btw Punitive Damages to Compensatory Damages “reasonable relationship to compensatory” – 4:1 ok but 500:1 is not. usually only single digits are ok 3. then let the jury decide whether the statement is defamatory in the context 7. very difficult to plead.
For public figure.No reasonable jury. In order words. An occasional. D did not foresee that P will suffer severe emotional distress. then a good case . Defense: A. the statement must be false and defamatory and made with “actual malice. in order to be liable for libel. Intent (foreseeablility): a). Element of intentional causing emotional distress (Harris v. d). Sullivan) . In general. Under traditional slander rule:it is defamatory per se if the statement is false and D has a good reason to know it is false. trivial false statement is unavoidable during the course of life.Outrageous . If one is held liable for libel for the trivial false statement.Severe emotional distress 3. then no case. Actual malice: with knowledge that the statement is false or with reckless disregard as to whether or not it was true ii). D’s conduct may not be “intentional” or “outrageous” (objective standard) because D did not intent to cause severe emotional distress. Penthouse International) Fail the “statement of facts” test . . the P can recover for emotional distress that is attached to other culpable acts. Establishing libel case: Hinge on whether the facts are true of not.. Public figure (New York Times v. Analysis of elements: i). Fantasy or fictional statement: (Pring v. It is undecided whether pure emotional distress is actionable against D. then you will likely be liable for any statement.Causation .A statement directed to a class of people in which the P is a member .If it is false. The D should be able to foresee that his act will cause severe emotional distress. B. Jones) .” i). Defense: D can prove that he has a privilege to make the defamatory statement. “intent” should be understood as the intent to cause the emotional distress c). This is contradict with the constitution 10.Intent . 11.If it is true. 2. given the context. would think the statement is true (debatable among reasonable minds) 9.Next to consider whether P is a public figure Intentional Infliction of Emotional Distress 1. 27 . .A statement directed to a fictional person that seems to describe the P but also cause reasonable deniability 8.
b).d). Three types . causing the patient emotional distress .Spin off the second: A person’s conduct caused a third party (bystander) fear or panic. Intent is inferred from D’s conduct and circumstances ii). In general. and the US supreme court do not generally decide on the state law matter Negligently Cause Emotional Distress 1. Behavior must go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community. Public Figure: The scale of “outrageous” is different for public figure (Hustler Magazine. Three elements (Thing v. Comparison with battery: . annoying. where it would not be so if he didn’t know. D is not liable without showing “actual malice. Severity is tested by the reasonable person standard. Effect of P’s particular sensitivity: The extreme and outrageous conduct may arise from the actor’s knowledge that the other is peculiarly susceptible to emotional distress due to some physical or mental condition or some peculiarity.bad news type: a doctor tells a patient the he was going to die. even the P has intent and the act is outrageous .various state by state. Even if the statement is false. The conduct may be held as extreme and outrageous when proceeding in the face of such knowledge. Behavior may not be merely insulting. whether the statement is outrageous is within the state law. or even threatening c).e.not culpable 5. with knowledge that the statement is false or with reckless disregard as to whether or not it was true..The narrower scale: A person’s conduct caused P fear or panic. iii.Emotional distress: intent to insult the P. Inc. b).Up to the jury to decide a). no matter how minor it is culpable .” i. v. abusive. Severe emotional distress: Need a physical manifestation . but the act is not outrageous . If the D did not suffer “severe” emotional distress. profane.Severe distress that manifests in physical symptoms 3. which then cause emotional distress . Thing) 28 . “Within the zone of danger” standard (Quill) . The D should suffer “severe” emotional distress. which then cause the third party emotional distress 2.Battery: intent to cause contact. 4. Jerry Falwell) A. 4. B. which is untrue. Severe emotional distress a). Outrageous (objective standard): .
The court made a conceptual distinction between the method used (breaking the law or not) to gather the news and the publication itself 2. suffers serious emotional distress (linked back to the first element) . False light: The P itself is harmed and mentally distressed 3. Distinction between publication of private facts and intrusion of privacy (Shulman) A. Noon) 29 . therefore there is no publication of private fact tort B. Fraud 1. 3. Using the two people as an important example to tell the story. The method used to obtain the information may constitute intrusion of privacy C. B. show the effect of the government policy. It is not equivalent to peering into someone’s privacy. Intentional misrepresentation (fraud) (Bortz v. Closely related to the victim ii). Book about P: the book is about northern migration: within public interest. there is no distinction in assessing damages for them.have to severe beyond what the normal disinterested Invasion of Privacy 1. Balancing test. distinction between defamation and intentional portray in a false light (Lake) A. Elements of false light action Publication to large number Places P in false light Highly offensive Actual malice 2.Problem of the rule: One can take any story of another person and turn it into a story about the effect of the government policy. The distinction is completely irrelevant as a matter of litigation? A. Publication of private facts may be public concern. . a D has various privileges to protect against defamation B.i). Under common law. Very few states adapt false light because it is often undistinguished from defamation: How mentally distress the P suffers almost always depends on how much the reputation is hurt. As a practical matter. False Light 1. Defamation: the reputation is harmed. Have to be at the scene and see it happened iii). The public interest may be outweighed by the injury to the P.
Intent to induce reliance 4. RAW).If the P knows D’s words are false. Fraudulent conception of a child . P is required to make specific allegation about what is being said by D that injured P ((CAM v.Elements 1. The fact that inadvertently misstating some facts will require the fact must be very important to hold the D liable. 3. So.When a male sues a female for fraudulent statements in inducing him into conception of a child. However. 5. Materiality requirements for intentional and negligent misrepresentations A. .Do not have a duty to tell the buyer the defect that the agent did not know about. knowledge of falsity or recklessness 3. it is difficult for courts to separate the monetary awards to the child from the mother unless the courts take away the mother’s right to custody. because the female usually gets the custody of the child and the female usually gets monetary damages for child support. which are supposed to benefit the child only. However. it is not fraud because he has no knowledge of falsity or it is reckless. Negligent Misrepresentation A. Negligent misrepresentation: . 6.). because P’s reliance is not justified. but does it anyway. and later change his mind. 30 . Injury 2.the very fact that one lies about the facts will make the D liable 5. the suit almost always fail. Actual justifiable reliance . In fraud.When a female sues a male. then it is not fraud. Duty . a material misrepresentation 2. B. she may be successful for getting awards for child support. Have a duty not to lie about known defects 4. Should have known or should have reasonably known of falsity B. Intentional misrepresentation . whereas she can get some benefit out of the monetary awards. Intentional misrepresentation Fraud with respect to the future expectations: If one makes a statement but did not intent it to be false.materiality requirement is higher. courts almost always awards the plaintiff but not for her injury.
31 . 2.): What is the problem with Texaco’s offer? Why is it not ok to bid for an oil company whereas it is ok to bid in an auction? Compare this with a case where A is offering $15000 to buy a car a B came in when the deal was done and offered $16000 to buy the car. 3. B induced a party of the contract to breach the contract. so it requires intentional and malicious interference. Interference with economic relationship: requires an independent and intentional act which is wrongful (Della Penna v. Policy question (Pennzoil Co. Toyota Motor Sales).Tortious Interference with Contract 1. v. Gye). Tortiously interference with contract decision is very problematic. B. Texaco. So the fact that it requires an existing of a contract seems to limit the problem in this type of cases (Lumley v. It seems to capture a very general area of economic activities. Inc.
(B<PL) Moral hazard in contributory negligent: 1. How you allocate the responsibility for building the fence doesn’t matter. P will just pay $20 or stay home to avoid the injury. P’s argument: D is negligent in hitting the P (B<PL) 2. What is the traditional common legal rule for allocating damage when an accident happens Situation A: 1. But it is easier to see in economic injury 3. The Transaction cost doesn’t have to be zero. Cattle and fence example: A. 32 . In Situation B: P will bear the entire damage if found contributorily negligent. It is difficult to see this MH in physical injury 2. Since D knows P will pay $20 to avoid the damage. There is a distribution consequences: Either farmer or the cattle-raiser will be made relatively poorer C.Appendix The problem of social cost 1. The parties will negotiate and contract before hand to reallocate the damage 2. P’s argument: D has a duty to act reasonably and breaches that duty in hitting P and B<PL 2. Coase’s reasoning A. D’s defense: But P is also contributorily negligent (B<PL) Situation B: 1. because the parties will contract themselves to reallocate the damage. D’s defense: P is contributorily negligent. B. he will just drive negligently. $100 Defendant $20 $10 2. Pedestrian-Driver example: An accident involving a motor vehicle and a pedestrian Plaintiff A: Cost of precaution $10 B: Cost of precaution $20 Damage v. One has duty to act reasonably to take care of oneself and P breach that duty. it just has to be low enough D. If the transaction cost is too high. There are a lot of “but for” causes in each accident B. then it is difficult to contract to reach the optimal distribution of the damage Justification for comparative and contributory negligence regime 1. We don’t care how the responsibility is allocated initially C.
P bear the entire damage because P contributory negligent (justified by B<PL for P: $10<$25) 4. P (Davis) v. Rail) Cost Blue Flag Blow Horn Damage $100 (Lost if both P and D do not take precaution) Analysis: B<PL is calculated at margin: The difference between damage if precaution is taken and damage if precaution is not taken (for each of P and D) Example: Total damage = $100 If P take precaution: damage = $75 (P = 0.the lost if D takes precaution ($10) = $40) B. D (Con. $0 Incentive: Moral hazard 1. 10% chance of accident Assuming: Each side is selfish and wants the highest payoff for him/herself Payoffs for P. Con. -$10 for “no 33 . Even if P or D takes precaution.25) PL = 25 (marginal damage) If D take precaution: damage = $25 (P = 0. For D: B<PL. Accident unless both parties take care Loss = $100 Cost for each = $10 Even with care. Davis v. Rail Corp.3. The conditional nature of B<PL (condition on the other party takes precaution) C. Then PL is less than initial PL. (PL = The lost if D does not take precaution ($50) .75) PL = 75 (marginal damage) A. D: a. D will take no care because he pays $0 care” Due care -$100. $0 n Due care -$110. $10 -$20. Assuming P takes precaution. In a regime where there is no tort liability Driver No care Pedestria No care -$100. and the other party does not.
P will take no care. because he pays $0 for “no care” 2. -$110 -$10. -$20. because. “no care” is the most reasonably action b. then the burden is shifted on to D. P will take no care. we don’t really care how the responsibility is divided initially 5. Assuming D takes no care. Comparative negligent Accident damage: $100 Due care costs: $10 Some care: $5 Both parties have due care: 10% of accidence Both parties have some care: 50% of accidence 34 . if (a) the parties cannot negotiate before hand and (b) each does not know what the other party will do. -$20 Incentive: Moral hazard 1. because. D will take no care. Strict liability regime Pedestria n No care Due care Driver No care Due care -$0. $0 -$100. Assuming P takes due care. then D takes due care 2. n $10 Due care -$10.2. $100 -$10. knowing P will take no care. Negligent with contributory negligent Driver No care Due care Pedestria No care -$100. Mann: If D knows that P takes no care. P takes due care. Coase theory: If the party can negotiate before hand. Contributory negligence provides the right incentive. knowing D will take no care. P takes due care 3. -$10 $100 Incentive: 1. -$100 $0. because the game theory does not apply anymore. D takes no care. “no care” is the most reasonable action c. Assuming D takes due care. Davis v. Assuming P takes no care. 4. d.
The strict liability will calibrate the drive’s activity level of the to the socially optimal level In Louisiana: . one has none: %75 of accidence If one has some. and Strict Liability A.The marginal increase in pleasure of driving (B): Depends on how much the driver drives .the driver is liable for an intentional tort 35 . $56 -$10. he will keep driving until B<= PL. the less marginal increase in pleasure the additional driving will provide. $50 Some care -$56.If the driver is held strictly liable.Not holding the blind people strictly liable for the injury that he causes when walking around without a cane is equivalent to giving the blind people a subsidy: Social benefit (B) The moral hazard problem caused by strict liability . driver run over the pedestrian intentionally: .contributory negligence B.If one party has due.The probability of causing injury: P . Hypo Case: If a driver held strictly liable for any injury that he causes. then the pedestrian starts to run wild Remedy for the problem: . $24 -$30. Hypo . Negligence.Injury of a car accident if it occurs: L . liability split 75-25 Driver No care Pedestri an No care Some care Due care -$50. $10 -$30. $30 Due care -$50. $10 -$20. . . Both D and P take due care Relationships among Intentional Torts. one has some: 25% of accidence If one has some. $50 -$24.If the drive is held strictly liable. one has none.How much he is going to drive is going to depend on: B >=< PL .the more he drives. $30 -$10. then how much is he going to drive . $10 Incentive: 1.pedestrian crossing the intersection against a red light.
but for negligence . Hypo . the driver should not be held liable.Intentional tort has an implicit requirement of duty: one has a duty not to commit intentional torts against others. . So if the pedestrian is contributorily negligent. Stevenson in light of negligent regime . intentional tort and voluntary assumption of risk: Example: P sues D for $100 loss D P $100 (strict no liability: P always bears the loss) $100 (if P can prove D intentionally causes loss: loss is moved to D) $100 (if P can prove D negligent: loss is moved to D) $100 (Strict liability: D always bears the loss) $100 (if D can prove P contributorily negligent: loss is moved back to P) $100 (if D can prove D voluntarily assumes risk: loss is moved back to P) F. thereby creating the dangerous condition.Contributory negligence is not a defense to intentional tort .Cost of preventing decay snail going into the bottle: . contributory negligence. Justification for Strict Product Liability Revisit Donoghue v. because the pedestrian is contributorily negligent. because the only thing lost is the “pleasure” of running over someone (B<PL). driver driving below speed limit and unintentionally run over the pedestrian: . D.Benefit of having a clear bottle: . Voluntary assumption of risk: .pedestrian crossing the intersection against a red light.A full appreciation of the risk that is coming .Although it is not justified by cost-effective analysis 36 .But it is relatively more costly to avoid the negligent act.An effective defense to intentional tort ???? E.Contributory negligence is a complete defense for negligence .The cost of having the driver not to intentionally run over the pedestrian is very low.D intentionally accepting the risk of being injured .Was Stevenson negligent? Yes .Why contributory negligence is not a defense for intentional tort.almost none except can seeing through the bottle .Very costly if every bottle is inspected . ..The driver is not liable under the traditional legal doctrine. C. Mirrors among negligence.Cost-benefit analysis .
. When should the court hold D liable? how to define “defect”? . if we can’t say whether the injury is caused by negligence. then we have to held D liable for product liability. there should be something wrong with Stevenson’s act (Stevenson should have done something. Primary assumption of risk: useless because D did not has a duty or did not breach the duty. .If driver is held strict liability. But the problem is that it is impossible to help both party “strictly” liable. if we can get the negligence right. Secondary assumption of risk (Blackburn v. 37 .. then pedestrian will do similar. then driver will automatically calibrate their activity level to socially efficient level. .The level of the activity that is product by these rules Primary v.Res Ipsa Loquitur: Similar to strict liability G. We just require the consumer to take precaution and the consumer won’t have to pay for an insurance premium to use the product. .On the other extreme.). then we don’t need to hold D liable.moral hazard .What is the different between strict liability and negligence .What is the problem of holding manufacturer strict liability . “defect” requires “negligence” . the court define “defect” between the two extremes.The intuition still says that the because the bad thing happened.On one end.holding D negligent . H.If pedestrian is held strict liability. Benefit and problem: Benefit of strict liability: . “defect” means something will cause injury that it would not regularly cause.On one hand. Dorta): A. for the extreme “strict” liability.On the other end.It doesn’t allow a party to automatically calibrate the activity level to socially efficient level. Also avoid moral hazard. . because it is hard to prove negligent in court and therefore the rule would not force the party to adjust their activity level.In general.A solution to “moral hazard” problem: . (B=PL) . Problem with negligent: .
and therefore cannot recover: because we always seek to deter intentional tort as the highest priority.A’s possible defense: consent. Qualified: The P did something stupid b. P cannot recover ii.not a good defense. Implied assumption of risk Express: . implied.contractual waiver.Is this a good defense? . P can recover Strict v. Hypo #2: A intentionally run B over while B was walked on the street negligently.B. B was intentionally suicidal and jumped in front of the car at the last second Analysis: Although A is negligent in general. but B committed an intentional tort against himself.In general. Secondary. Jewett A. Secondary assumption of risk a. Express v. P’s act is unreasonable. resolved within contract law. The relationship between comparative fault and voluntary assumption of risk B. ii.This is a mirror image of Hypo #1: We always seek to deter intentional conduct at the highest priority Knight v. which implied P assumed the risk Hypo #1: A negligently driving. Strict: as useless as primary assumption of risk P did not have a reasonable alternative.But B could be negligent . . It is only a label of a possible defense. . P’s act is reasonable. Analysis: B should be able to recovered because A committed an intentional tort. qualified assumption of risk i. qualified assumption of risk Fact pattern in general P did something stupid. What is the actual rule? . express assumption of risk completely bars recovery Implied: Unreasonable i.a participant in an active sport breaches a legal duty of care to other participants only if the participant intentionally injures another player or engages in 38 . because B could not possibly consent to being run over .
the duty/breach/causation doctrine become more complicated.just enough analysis 4. Whether the student can articulate the rules and apply the rules to resolve the issues 3. Long fact patterns are given and students are expected to resolve the issues 2. By saying voluntary assumption of risk is abolished and the court is required to make decision based on duty/breach/causation regime. E. the only thing matter in defending negligent case is whether D violated any duty .conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport. Tort exam tips 1. Hard issues .determine what doctrine to use and the intrinsic value of the doctrine 39 .duty exists or breaches duty? . Easy issues . Formal doctrine of duty is open. Hypo: A was negligently driving. C. when B intentionally jumped in front of the car Analysis: A’s possible defense: A violated no duty D. After this case. but judges normally apply narrow bound F.depending on: the fact pattern and the specific of the definition of duty.
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