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Torts Outline I.

INTRODUCTION Tort Law 1) Def: a) When one person acts in a way that causes injury to another person. Noncriminal response to an injury. b) A collection of principles describing the legal system's civil (non-criminal) response to injuries one person inflicts on another including an action for bad faith breach of contract 2) Categories of Tort Law: a) Intentional Torts- Intended injury, Blameworthy b) Negligence and Recklessness- Certain standard of care. You have been reckless, careless c) Strict Liability- didn‟t do anything wrong but an accident happened. 3) 5 Functions of Tort System a) Corrective Justice- correcting/restoring moral balance. Fault based torts. Court system is moving away from corrective. b) Optimal Deterrence, Specific Deterrence- lawsuit for defective car settlement deters Ford from making lemons for everyone. c) Loss Distribution- Spread out the loss. Large # of people baring a small loss. Insurance. d) Compensation- Compensate victim for the loss that they suffered. Can be part of other types of function of tort. e) Redress of Societal Grievances- Enforce societal norms. 3) Competing Policies on how tort law serves society a) Compensation- to make victim whole again b) Deterrence 4) Tort law can influence public policy and public policy can also influence tort law. B/c of this courts will come up with public policy rationales for decisions II. INTENTIONAL TORTS Intentionally Inflicted Injury 1) Intent: a) Def: the actor desires to cause consequences of his act, or believes that consequences are substantially certain to result from it. b) Def: It does not matter what age the (P) or (D) is. Children are liable for Intentional torts. 2) Test of Intent: a) Desire/Purpose Intent: actor desires to cause the consequences of his act or b) Knowledge/Substantial Certainty Intent: believes the consequences are substantially certain to result from the act; even if that end act is not desired 3) Intent a) Subjective Test for Intent- Defendant desired to contact the plaintiff OR was substantially certain that a contact would occur as a result of the defendant‟s act. b) Not intent to harm, e.g. battery but intent to cause offensive or harmful contact a) eggshell/thin skull doctrine; doesn‟t matter if D knows of special fragile condition; D is still liable; take the P as you find them (except intentional or reckless infliction of emotional distress – there is an exception to this exception though – see infliction of emotional distress sections) i) need not be foreseeable (not negligence); presumed to have intended consequences of tort; proof less important (1) E.g. even though intending nothing more than a practical joke; can‟t “dress up intent in negligence clothing”;

4) Prima Facie Elements of Intentional Torts (with exception of intentional infliction of emotional distress the elements are): a) Affirmative act b) intent c) invasion of a protected interest (e.g. in battery, protection of the interest in freedom from intentional and un-permitted contacts with the person) d) causation in fact - not as stressed in intentional torts as in negligence e) damages or injury to plaintiff 5) Mistake a) Mistake in good faith and reasonably so and unavoidably does not by itself serve to absolve D, so long as the result was intended; E.g. shooting another‟s dog, thinking it was a wolf; bullet in the animal was intended; trespass to chattel i) Privilege exception: reasonable mistake; socially important interest 6) Insanity a) Policy considerations take precedence over fault principle; if capable of entertaining intent to injureliability; regardless of whether the insanity produced the intent b) Policy Consideration: Injured party shouldn‟t bear the loss; if D is financially able  should pay the loss c) Efficiency principle; unwise to expend resources attempting to resolve legal question mired in uncertainty or complexity e.g. as in criminal law 7) Transferred Intent a) D liable if: If D acts intending to cause any of the five original “trespass” torts and injury occurs to that person or to another person, he intends to commit transferred tort as well i) Battery; Assault; False imprisonment; Trespass to land; Trespass to chattel; E.g. throwing erasers across classroom in horseplay, accidentally hits third party b) Can transfer another tort to same person or same tort to another person c) Cannot have transferred intent for conversion or intentional infliction of emotional distress. 8) Principle and Agency a) Respondeat Superior: “let the master answer”; principle responsible for actions for acts of the agent if within the scope of employment b) relation of agency does not depend on express intent; can be an implied intention to create the relationship through words, conduct, circumstances; Battery 1) Tort of battery protects a person‟s right to bodily integrity, which is the right to be free from intentionally inflicted contact that is harmful or offensive. a) Insanity: As a matter of policy, New York courts hold mentally ill persons responsible for the act of battery 2) Elements of Battery 1) An Affirmative Act- external manifestation (Its visible) of the actor‟s will (Chose to do it). 2) (Subjective) With The intent To Cause Harmful or Offensive Contact With the Person of Another. Actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it. Look at the act subjectively/ from the defendants‟ point of view. 3) (Objective) Results Harmful or Offensive Contact With Another Results Either Directly or Indirectly. Whether it would be harmful or offensive to a reasonable person in society. Intent (in minority jurisdictions P must prove duel intent, see White) Single Intent- all the defendant has to do is intend the contact.

Dual Intent- You have to intend the contact and you intend it be harmful or offensive. Do not have to intend the injury. 3) Damages a) Compensatory- compensating the plaintiff for the injury. Trying to make them whole. Pain & Suffer generally small- the number goes up with life left. b) Nominal- Similar to compensatory but with no implied injury. Intentional torts not negligence c) Punitive- punish defendant. Send a message. 4) Cases: Intentional Torts A) Intent to Contact w/o permission a) Waters v. Blackshear  D had intent to contact with firecracker; P cannot bring suit for negligence for harm from an intentional tort. P should have brought suit for battery instead. 1) Affirmative act- Placing firecracker in the shoe. 2) Subjective element- What did the defendant think he was doing his desire 3) Objective element- severely burned (P) b) Polmatier v. Russ  Intent to contact; Mentally Insane person can still have intent to contact b/c D meant to cause harm which was shown through testimony; It doesn‟t matter that D did not intend the exact harm (death in this case), it only matters that D intended contact. 1) Affirmative act- Beating with beer bottle, Shot the (P) 2) Subjective element- What did the defendant think he was doing his desire 3) Objective element- (P) dead. B) Intending Contact That Is Harmful aa) Act Requirement & Intent Requirement a) Nelson v. Carroll  Intending contact that is harmful; D still liable even though he didn‟t intend the specific harm (of shooting P when all he meant to do was hit P with the gun). All that is needed is intent to make contact not intend the actual harm. i) Restatement 2nd distinguishes between harm and injury. Injury denotes the invasion of any legally protected interest of another. Harm denotes the existence of loss or detriment in fact of any kind to a person. In an intentional tort case it is only required that D inflicted a legally recognizable injury on P. Damages however are measured by the amount of harm suffered. Indirect contact- bullet that hit Carroll. 1) Affirmative Act- (a)hitting with gun,unintended gunshot 2) Subjective element- Actor‟s will 2) Intended some contact. 3)Results indirect contact by pistol wiping (P) & gunshot. 3)Objective element- Harmful or Offensive: Whether it would be harmful or offensive to a reasonable person in society. Pistol wiping and be shot is. C) Injury vs. Harm 1) Injury: the invasion of any legally protected interest of another. To commit an intentional tort, actor only needs to intend injury. 2) Harm: the existence of loss or detriment in fact of any kind of person- the measure of how bad the “hurt” is. D) Intending Contact that is Offensive Objective Test for Offensiveness- Evaluate defendant‟s conduct in terms of societal standards and a “reasonable sense of dignity‟ b) Leichtman v. WLW Jacor Communications  intending a contact that is offensive; smoker blew smoke in face in non-smoker advocate‟s face; “No matter how trivial the incident, a battery is actionable, even if damages are only one dollar”; Tobacco smoke can constitute physical contact and P has a stronger case that contact was offensive b/c he was a known anti-smoking advocate; in this case nominal damages would be awarded to vindicate P‟s right, but if P was asthmatic there could possibly be extensive compensatory damages under the thin skull P doctrine.

Offensive- defendant gets nominal damages- right to bodily integrity has been violated but no damages really occurred. Offensive contact to a reasonable (Objective) sense of personal dignity. Look at a reasonable ordinary person (Not Sensitive) would be offended by the contact. We do not look at the (P) but at an ordinary person. *Exception- if the defendant is aware of the particular sensitivity of the plaintiff, the court will take that in account. *Aware of sensitivity and disregard= it‟s offensive. Rule: battery because offending personal dignity. Nominal Damages- right to bodily integrity has been violated 1) Affirmative Act- Blowing smoke in (P)‟s face. Will- yes, Contact-yes. 2) Subjective element- intent (D) repeatedly blowing the smoke “particulate Matter” in (P) Face. Indirect offensive conduct on the side of the defendant. 3) Objective elementOffensive means „disagreeable or nauseating or painful because of outrage to taste and sensibilities‟. Offensive contact is offensive to reasonable sense of personal dignity. Subjective Test for Intent- defendant desired to contact the plaintiff OR was substantially certain that a contact would occur as a result of the defendant‟s act. Objective Test for Offensiveness- Evaluate defendant‟s conduct in terms of societal standards and a “reasonable sense of dignity”. c) Andrew v. Peters(Single Intent Approach)  intending contact that is offensive; this is the knee tapping case in which one employee (a man) tapped the back of the knee of another (a woman) and she suffered injuries; does not matter that harm was intended as long as contact was offensive; court says that this act was easily offensive; (D) is responsible for the unforeseen results. an objective test would be used in this situation of looking from P‟s point of view to determine if the contact was offensive to personal dignity; context of case (workplace, and parties are of opposite sex) provide more proof that contact could be considered offensive. “Bodily contact offensive if it offends a reasonable sense of personal dignity” Rule: Nature of intent required is irrelevant- intent to invade. d) White v. Muniz (Dual Intent)  Minority position of dual intent; must have appreciated the offensiveness of the contact. i) In future cases a plaintiff: P would have to show that there was dual intent: intent to commit an act and intending act to be harmful or offensive (so they can appreciate the result of their actions). The court uses Horton v. Reeves; 3yr old and 4yr old (that child must appreciate actions). Difference between Polmatier. Russ had intent to kill, even though he was insane. In this case, D lacked the mental state to recognize that her acts were harmful- the action must be a voluntary movement. If she had been on the street and struck a pedestrian would be different b/c there would be a duty. Whether a battery of dual intent. Does the defendant need a dual intent. 1. Contact 2. Harm or Offend- intend to. This element can fail. e) Taylor v. Barwick  Pro se (represent themselves) Case about nominal damages; inmate case where the guard made a comment and poked the inmate with a stick found on the ground; courts should rule on cases on intentional torts even though only nominal damages would be awarded; de minimus (Latin expression meaning minimal things; to say that the law is not interested in trivial matters; means something which is unworthy of the law's attention) argument is brought up when court talks about prisoner makes mountain out of molehill; however public policy issue: court doesn‟t want prison guard personnel to taunt inmates. Flipside is that they don‟t want a bunch of frivolous lawsuits from inmates.

4) Cases: B) Intending Apprehension of Imminent Contact. Apprehension is one which must be normally aroused in a reasonable person ii. Therefore calls did not constitute an assault. Or reasonably certain to place (P) in Apprehension of an immediate harmful or offensive contact. Restatement: if act is done with the intention of affecting a third person.intention tort cases where the plaintiff suffered invasion of bodily integrity but no harm. To prove assault.Nominal damages. court applied objective test that apprehension must be one that would normally be aroused in the mind of a reasonable person. ii. Words alone are typically not sufficient for affirmative act. but was not assault b/c no imminent threat. . iii. Need not foresee the result of how much apprehension the actor creates. the actor is liable to such other as though he intended to affect him. c) Results (objective). the defendant‟s words threatened action in the near future but not imminent future. but causes harmful bodily contact to another. The requirement of imminence is an element of assault b/c of judicial economy reasons that if the requirement was not present cases would flood the courts in which it would have been possible for the P to escape. Cullision was more imminent and in Brower the language signifies that plaintiff could have escaped. but court said intent can be transferred the intended assault to battery and D could be responsible for battery if it was found that the bullet that struck P was from his gun. but “was there a threat” b) Brower v. Phone calls did not provide imminent threat-threat must be immediate in nature to be assault. 3) A) Elements: a) Affirmative Voluntary Act –external manifestation of the actors will. i. b) Intent (subjective). must show immanency + intent iii. case showing P was in apprehension of imminent harmful or offensive contact. i. Assault 1) The intentional tort of assault protects one‟s interest in being free from the apprehension of imminent harmful or offensive contact 2) In Texas only there is a fusion of assault and battery in both criminal and civil. Would a reasonable person be placed in apprehension of harmful or offensive contact. i.next thing that is going to happen. B/c the threat was over the phone there was no imminent threat of harm. Ackerley  case about reprehensible conduct in which P made threatening phone calls to D. a) Cullison v. Assault is not the amount of harm. Apprehension of imminent threat based on perception of victim. McBryde  illustrates transferred intent among people and torts in which D claimed that he only meant an assault on the people in the car by shooting at them and not a battery. (Battery).to put the (P) in Apprehension of Immediate harmful or offensive contact. Intentional torts not negligence. court rules that from the facts a jury could reasonably conclude there was an assault and it was error for the court to grant summary judgment. C) Transfer of Intent Among People and Between Torts c) Hall v.” v. Medley  the jump astraddle case.in placing the plaintiff in apprehension of an immediate harmful or offensive contact.Not conditional. Words alone are not enough to make an actor liable “unless together with other acts or circumstances they put the other in reasonable apprehension of an imminent harmful or offensive contact with his person. Psychological suffering not relevant to finding assault. Fear not necessary element iv. d) Immediate. but useful for damages as part of the harm suffered.

trespass to land. present at the time of the extreme and outrageous conduct. the intent & the actual tort transfers to his actual victim. Another limitation is that P must suffer severe emotional harm and conduct must be outrageous. Thoroughbred Datsun Car Co.Defendant that intends to commit assault and/or battery against one person that ends up committing assault and /or battery against another will be liable to that other as if they were the intended target.ii. Alternately. Willbanks  Severe Emotional Distress. Cilek  Outrageousness. c) Miller v. this case showcases the exception to the general rule about infliction of emotion distress on a thin skull P that the reasonable person standard is only not used when the D knows that P is thin skulled. Transfer of Intent among People. Court decides to take majority view that expert testimony is not needed in this kind of suit. reasonable minds could differ if the car dealers actions were outrageous and therefore it should go to jury. factors the court weighed was that they lived in a major city and it was a college town o from the court looking at the standards of the community finds that the behavior was not outrageous. b) Rule criticized as irrational c) Restatement allows recovery in two situations: i) Member of immediate family of the victim. b) Court‟s are very reluctant to let suits be brought due to reasons of possible fraud. Intentional or Reckless Infliction of Emotional Distress 1) General: a) The tort of intentional infliction of emotional distress protects a person‟s right to be free from serious emotional stress. is expert testimony needed? Court discusses minority (expert testimony is needed) and majority view (no expert testimony is needed). Court found that wife having affair was not outrageous conduct to sustain action against other man. Court doesn‟t want to revive the old heart balm statutes that were abolished. assault. The court . b) Strauss v. Court does not want to bring these cases back for example this case which is an alienation of affection wrapped up in an intentional infliction of emotional distress. and distress resulted in bodily harm 4) Cases: a) Zalnis v. Transfer of Intent between Torts -Plaintiff who suffers a harmful or offensive contact can recover for battery even if defendant only intended assault. and determining what is “outrageous”. present at the time of the extreme and outrageous conduct. the car dealership case in which salesman yelled at a buyer after trying to get her to return a car b/c the dealership lost money on the sale. regardless of physical harm ii) Not member of the immediate family of the victim. Plaintiff who suffers apprehension of imminent harmful/ offensive contact can recover for assault even if the defendant only intended battery. 2) Elements: a) Intent or recklessness b) Outrageous conduct c) Causation d) Volition e) Results in severe Emotional Harm 3) Transferred Intent a) Not allowed at common law because not one of the original five torts in the writ of trespass on the case: Battery. c) P has to show the D intended to cause emotional distress.  Outrageousness. Since he wanted to inflict assault on others. Public Policy issue that anyone with a cheating spouse could flood the courts. the outrageous nature of the conduct invalidates the need for the expert testimony. trespass to chattels and false imprisonment.

this case was where the newspaper took pictures of the dead son‟s body in front of the mother and kept her outside the room. under. Defendant must know if the P was present in plain site for transfer intent. It doesn‟t matter if the actor thinks the property is his. whether he thinks he has permission. especially when no one is living there. This comes from the booby trap case involving the land owner who set-up the spring gun and plaintiffs sued him for damages when plaintiff was shot in the leg trespassing on the land. Court also says the crane and boon swinging over the land. but courts have ruled that the value of life is worth more then protecting property. Under the law air space rights are protected. This court recognizes the restatement view (even though it was only persuasive authority) of transferred intent versus the common law approach. . or above the land of another c) Volition d) Causation: “But for” Test 3) Damages: i) Liability attaches even if no harm ii) D may be liable for harms that are not foreseen (ex: death of landowner) iii) Compensatory damages and nominal damages for intentional intrusion if no actual damage (1) Compensatory damages: (2) Consequential damages: damages must be natural and proximate result of trespass (3) Nominal damages: public declaration of public right (4) Occasionally Punitive Damages: 4) Cases: a) Thomas v. Oak Park Marina  Reckless infliction of emotional distress. the husband‟s death. b) Baker v. That is why plaintiff brought intentional infliction of emotional distress claim. Chicago Tribune Company  Transferred intent for infliction of emotional distress.” (Restatement Second of Torts §163). in intentional torts damages are NOT limited to only foreseeable damages. transferred intent to mother (immediate family members) following Restatement 2nd. NY recognizes that the tort of reckless infliction is encompassed within the intentional infliction of emotional distress and the court says that this jurisdiction (NY) does recognize it. therefore invalidating the need for expert proof.concludes that the trier of fact can normally ascertain the existence of serious mental injury caused by the intentional infliction of emotional distress. 2) Elements: a) Intent b) Unconsented physical presence on. irrespective of whether the actor knows or should know that he is not entitled to enter. D can be liable for trespass. Trespass the Land: 1) General: a) Throwing something on the land occasionally is considered trespass the land b) Allows for transferred intent c) Cannot be smells or noise b/c this is nuisance (next semester) d) People do have a right to defend their home. NY does not recognize any privacy torts/actions under common law. or has a mistaken belief that he does have permission. That could be another reason that NY recognized the cause of action. Very often courts will often allow recovery for non respect of the dead (possibly b/c it is very likely that the behavior will be seen as outrageous?). i) The intention which is required to make the actor liable under the rule stated …is an intention to enter upon the particular piece of land in question. court decision that Marina‟s intent could be considered reckless. Plaintiff won in this case. Shymkiv  D can be responsible for unforeseen acts that occur from the trespass.  Even if no real intent to trespass. d) Dana v. e) Green v. the is the case in which a casino was being built right on the property line. Harrah’s Vicksburg Corp.

intentional exercise of dominion or control over a chattel which so seriously interferes with P‟s right that D is required to pay for the chattel (forced sale. sometimes loss of use. or of such magnitude as to justify forcing D to purchase it. P gets money damages). quality or value. as well as punitive damages because known practice in the industry c) Damages: market value of goods at time and place of conversion . no trespass to chattel a) Elements: i) Intent ii) Causation iii) Volition iv) Minor interference with the plaintiff's possessory interest or Dispossession v) In the absence of dispossession (from which damage may be inferred). or harm is caused to some person or thing in which the possessor has a legally protected interest c) Remedy: actual diminution in its value of chattel caused by the interference. D intentionally interferes with chattel by physical contact of dispossession. Conversion: 1) Trespass to Chattel: relatively minor interference in P‟s right. courts might say if no damages. symbol of car. but not necessarily protected if victim of fraud (some consent) ii) If there is no dispossession then person does intend to exert total control iii) No Duty for victim to exhaust all possible means to recover chattel (1) Car dealers taking customers keys.got full value of car. Trespass to Chattel v. b) Notes: i) Bonafide purchasers: protected from theft . or (2) Impairment of condition. (3) Damage may be inferred if there is dispossession b) Elements: (Restatement 2nd) trespass to chattels actionable if: i) P dispossess the other of chattel or ii) The chattel is impaired as to its condition. activity carried on or condition created by the trespasser. (thief has no right of title). a) Elements: i) Intent – to exercise dominion and control over the chattel (1) No transferred intent ii) Causation iii) Volition iv) Major interference with the plaintiff's possessory interest (1) Restatement 2nd § 222A states that conversion is an intentional exercise of dominion or control over a chattel which so seriously interferes with P's right to control it that D may justly be required to pay P its full value. caused by any act done. proof of damage in the form of: (1) substantial loss of use. or to the land or to his things.” (Restatement Second of Torts §162). can‟t be a mere taking for a short period of time 2) Conversion: more serious intrusion. It is a trespass to chattel which is serious. quality. aggravated. or value or iii) The possessor is deprived of the use of the chattel for a substantial amount of time or iv) Bodily harm is caused to the possessor.i) “A trespass on land subjects the trespasser to liability for physical harm to the possessor of the land at the time of the trespass. compensatory or nominal damages i) Split in the courts: typically must be some damage to property interest. or to members of his household or to their things. irrespective of whether his conduct is such as would subject him to liability were he not a trespasser.

shows a defense to false imprisonment. The trial court believed that P‟s behavior after the initial 3 days constituted a waiver and the appellate court agrees with this determination b/c it is consistent with the evidence. and with no good faith. no reasonable means of escape c) To a person d) Volition e) Causation 3) Cases: a) Enright v. scientist destroyed valuable culture of cells for research purposes and U.S. Arora  Case about conversion. D escapes liability… 1) Consent: some indication on the part of the P suggesting that there is consent . Arora (4) Replevin: to get the original chattel back and incidental damages. iii) the actor‟s good faith. Court says we really can‟t say she consented or not consent b/c she did not have the capacity b/c she was programmed by the cult. DEFENSES & PRIVILEGES Even if P has succeeded in proving elements in prima facie case. ii) the actor‟s intent to assert a right in fact inconsistent with the other‟s right of control. in a trespass the chattel the court requires proof of actual damages. Sorlien  The girl cult deprogramming case. P must know. b) Peterson v. Arora only had a short time with the cells. art theft 3) Conversion v. iv) the extent and duration of the resulting interference with the other‟s right of control. b) Confinement: actual or apparent barriers. This is a weak argument. In this case there was none. Sears Roebuck & Co.g.(1) Market value at the time of dispossession. II. False Imprisonment 1) THE DEFENDANT UNLAWFULLY ACTS TO INTENTIONALLY CAUSE CONFINEMENT OR RESTRAINT OF THE VICTIM WITHIN A BOUNDED AREA. vi) the inconvenience and expense caused to the other. sued under conversion. It is a forced sale of property from the rightful possessor to the converter (2) Courts have become more creative as conversion for non-tangible items is recognized (3) Courts can also give punitive damages as they did in United States v.S. v) the harm done to the chattel. He interfered with Sei‟s right to control the cells. She waived her right to complain about the first three days.  Trespass the chattel case. but he had full control of the cells. b) United States v. The court ruled that asking for the drivers license was not a lawful order and refusal to comply was in and of itself an offense. The parental relationship is special and that by public policy and society has a right to intervene. e. destroyed the cells. 2) Elements: a) Intent (purpose or knowledge) to confine. so therefore P does not have a cause of action. Groves  Dog case in which woman was falsely arrested and confined. Another factor was that the police denied P access to his truck (to investigate a potential shoplifting claim) not Sears. court found no trespass. Since he completely destroyed the cells there was conversion and almost as a forced sale to D and now he has to pay for the cells. Trespass to Chattel a) Factors Include: i) the extent and duration of the actor‟s exercise of dominion or control. U. In this case P would have to prove false arrest in order to prove false imprisonment b/c D is a police officer. There was proof that she was arrested for not producing her driver‟s license only. 4) Cases: a) Koepnick v. Therefore the officer was not allowed to use force in arresting her.

he was justified in his act. ii) Hogan v. The court also says that if D went outside of the realm that was not in the rules of the game then there is cause for an action. he may not recover for the injuries sustained unless force in excess of that necessary is used and its use is not reasonably anticipated. Boys Scouts of America  Defenses to assault and battery. One may use deadly force only to prevent serious bodily harm. 2) Defense of Self and of Others: Privilege to prevent against imminent apprehension of a battery if force is reasonable force under the facts a) Force must be reasonable: i) P is a young. court says P‟s withdrawal from the game was not adequately communicated. Excessive force is a contact that is not consistent with the understood rules of the game. there was implied consent by playing the game with the other boy scouts. Consent is sometimes not available if the activity is a crime (ex: when abortions were outlawed). whatever her unexpressed feelings may have been. consent that was fraudulently obtained is not consent and the actor may be liable.a) Actual Consent: Also referred to as consent in fact or explicit consent. or by silence or inaction under circumstances when silence would give consent. Either deceit/fraud or mistake vitiates consent. courts indulge in absence of consent (either actual or apparent) to justify desirable conduct which would otherwise be tortious d) Cases: i) McQuiggan v. (5) Threats of serious bodily harm. b) Apparent Consent: If the plaintiff‟s behavior was such as to indicate consent on her part. In self defense. Tavzel  Defenses to assault and battery. (6) The impossibility of a peaceful retreat. affirmative action. West/South: no duty to retreat ever!. When a person voluntarily participates in an altercation. court says there was implied consent between the boys and the fight and there was no excessive force. The court says under the circumstances (being in the persons own home) that the duty to retreat is not necessary. he cannot recover for harms relating to that invasion even if the harms were unforeseeable. Once the actor has consented. Mangion  Defenses to assault and battery. D fires “warning shot” that actually hits P ii) Use of deadly force: must claim that D reasonably feared for his life (1) D asked P to leave. c) Implied Consent: legal fiction. (2) The belligerence of the attacker. The court uses the reasonable person test – that if a reasonable person would also fear for their life and the person feared for their life then the . (4) An overt act by the attacker. consent is not an available defense if the fight is a breach of the peace. Factors to consider in reasonability: (1) The character and reputation of the attacker. (1) Note in Casebook: Some fist fights and other activities are considered a breach of the peace. One party‟s consent to sexual relations is vitiated (invalidated) by the partner‟s fraudulent concealment of the risk of infection with venereal disease. no duty if occurs at own place of business (or home). iii) Richard v. The law uses an objective test and whether consent may be inferred from any particular circumstances must be decided on a case by case basis. This was not the case in this situation. (3) A large difference in size and strength between the parties. An actor who consents to an invasion on an interest does not thereby consent to all possible harmful conduct. In some states. perhaps the majority. Can be manifested by words. North/East: duty to retreat (exceptions home and business) b) Cases: i) Slayton v McDonald  Deadly forced used was reasonable under the circumstances since D was in his own home and D shot P in the leg. there was a fistfight between a 13yr old and 14 yr old. When an actor is faced with a battery or assault that does not involve serious bodily harm. large athlete who threatens older smaller man. but he refused (2) Duty to retreat. he or she is entitled only to use moderate or reasonable force.

Hear someone moving in apartment. D is NOT liable for damages i) Individual rights of property destroyed gives way to higher laws of impending necessity ii) Necessity must be clearly shown. This case was about the employee on the farm who was fired and then owner used force to eject him from the property. Warren  D did not use reasonable force under the circumstances to protect his daughter b/c D shot P in back while P was leaving. 5) Authority of Law . Wife does rent it out. also a right open to private citizen (3) Doesn‟t matter if home owner has insurance or not. The extent of the force used is not measured by the harm suffered but rather by the harm the D intended to cause or was likely to cause. Turnipseed  D wasn‟t justified in using reasonable force b/c the danger to his property was not imminent. Lake Erie Transportation Co. the case in which D (ship owner) repeatedly kept ship tied to dock resulting in ship banging against dock and causing damage. they can‟t set up traps that would unreasonably harm someone. Evidence showed that threat was not imminent b/c D walked away with his back towards P. then lose the defenses ii) Defense/use of force must be reasonable: (1) Setting up a spring gun to protect property unreasonable (a) Policy: spring gun has no discretion.person can use deadly force. ii) Young v. The necessity must be immediate. 3) Defense of Land and Personal Property a) The privilege to use force to defend land a personal property is also based on the principle of proportionality i) Hypo: (1) Have vacant two family apartments downstairs. Gov‟t doesn‟t have to compensate land owners for property damage (flooding in this case) b/c they acted for the greater good of the public. but you don‟t know. no requirement of consent of property owner (2) Privilege not necessarily vested only in the public official. Is it successful? Owner has made a mistake. If it is a mistake. 4) Necessity: Public and Private a) Public necessity: if action in good faith to prevent further harm. but also held liable to compensate for damages (if deliberate action). Many factors to rule case in favor of P that force was unreasonable: D was much bigger and older than P. State of Idaho  Public necessity case. but renter is a legal occupant. life is more precious than property (2) Although property owners have a right to protect their property. Owner can claim defense of property. appeared at the time to be (1) Property owner‟s judgment is clouded. and attacks made in the past or threats for the future will not justify. not reasonable for trespasser to expect trap (3) Use of force must be proportionate (4) Law frowns on deadly force in defense of mere property b) Cases: i) Woodard v. D is still liable for damages the ship caused to the dock by banging into it even if private necessity. This is not the case in this.  Private necessity case. e) Mary v. The difference in this case as compared to Slayton is the D reasonably believed his life was in peril. Person in apart can claim false imprisonment. Someone acting in the public good is allowed to act to the detriment of land owners without compensation. This is very different than private necessity. it was not unreasonable for P to wait for a ride home (justification of why P stayed on property). no compensation for public necessity b) Private Necessity: One has a right to protect private interest. Evidence showed that force used was not reasonable. D is liable for any damages c) Cases: d) Vincent v. and lock them in and calls police.

b) Range and Application of the Reasonable Person Standard i) Cases: (1) Stewart v. (a) Notes in Casebook: The reasonable person is not a typical person but a hypothetical person who is always reasonably prudent (Restatement 2nd Torts). Motts  especially dangerous instrumentalities. It is a catch all for anything not covered in the above defenses. III. Court determined that judgment was reasonable. D wants court to judge him through looking through his eyes if he used his best judgment. Hand Formula: The burden of precaution is less than the magnitude of the accident.  This was the case in which an intruder broke into hotel room and attacked P. And so long as the judgment is reasonable the trial judge has no right to set it aside. (2) Parrot v. but court says no and that there is one standard and that is one of the reasonable prudent person would do in a similar situation. if it occurs. Parties here do not give any information required to quantify variables for the hand formula and it was up to the jury to decide the reasonableness for the negligence standard rather than the jury measuring factors through the hand formula. Fargo & Co. Tort law could treat an actor as possessing: (1) full knowledge of all the risks of his or her situation. The court uses the second standard in this case. (Nitro-Glycerin Case)  case in which the care that needs to be taken is one of an ordinary prudent person and D was not responsible b/c they acted as a ordinary prudent person in the circumstances. multiplied by the probability of occurrence. Does a higher standard of “extraordinary care” exist for the use of dangerous instrumentalities over and above the standard of “reasonable care” such that the trial court erred for failing to give an . (B<PL). claiming hotel could have taken precautions. the Learned Hand formula. Reasonable conduct as a balancing of costs and benefits. If burden is less then precaution should be taken. Court says that Wells Fargo is acting as a reasonable prudent shipper and that holding them to the constructive knowledge standard would be unreasonable.a) Law enforcement privilege 6) Discipline a) Parents and those in loci parentis such as teachers can use reasonable force to discipline 7) Justification a) General privilege that can appear in any context when the D‟s intentional tort is excused. (2) all of the knowledge a reasonable person would have had. P sued hotel for neg. NEGLIGENCE 1) General: a) Negligence is conduct which poses an unreasonable risk of harm to others b) Elements: i) Duty “Standard of Care” ii) Breach iii) Causation iv) Damages 2) The Duty of Reasonable Care a) The “Reasonable Person” Standard i) Is a hypothetical person and the standard is How would a reasonable person act under the same or similar circumstances. the hay-rick case. (a) Note in Casebook: The reasonableness of an actor‟s conduct will usually depend on the knowledge the actor had about the riskiness of a situation. Wells. or (3) only the knowledge the actor actually had. ii) Cases: (1) Vaughan v. Menlove  Case about the definition of the reasonable person standard. (3) McCarty v Pheasant Run Inc.

the court concluded that the trial judge did not abuse his discretion in the giving the instruction. if ever. . Current tort law is divided on whether this type of instruction is a helpful addition to the reasonable person test. It is up for the jury to decide and testimony from witnesses of what a reasonable child of like capacity would do in similar circumstances need not and indeed may not be presented at trial. B/c under the circumstances a reasonable person being blind would have used an aid. Evidence must be brought forward at trial concerning the child‟s age. and experience so a jury may determine the child‟s capacity. Robinson v. Cervelli v. Court adopts an adult standard when a child is engaged in an activity that is normally an adult one AND if the activity is inherently dangerous. this is the same standard as the ordinary person standard. (2) the emergency had come about suddenly and without warning. Poyner v. and experience would exercise under the same or similar circumstances. the reasonable person standard is a minimum and if the person has superior knowledge or skill that should be taken into account. the reasonable person standard covers situations like this b/c it addresses the circumstances of the situation Myhaver v. maturity. Graves  an actor‟s knowledge or skill. it will rarely. in this case blind man fell off ramp b/c bush was not present. Intoxication can not be used as a defense. (b) Some states have statutes that alter the common law position and make parents financially responsible for damage their children cause. the physically disabled actor must act as well as a reasonable person with that physical disability would act. Court concludes that even though a judge will use his discretion and give the instruction in a particular case. should there be a sudden emergency instruction. Loftus  Physical disabilities. The sudden emergency is just one factor in determining the reasonable person standard in this case. completely ignoring the fact of intoxication. The standard that applies to the reasonable person. training. (a) Child standard of care: a child is required to exercise the same care that a reasonable careful child of the same intelligence. and (3) reaction to the emergency was spontaneous w/o time for reflection. intelligence. There was ample evidence of this nature in this case and the evidence was not such that P could be ground contributory negligent as a matter of law. Knutson  Emergencies. the case where a 14yr old operating a snowmobile crashed into D (13yr old).(2) (3) (4) (5) (6) appropriate instruction to the jury? No. Court joins other courts that have discouraged the use of the “sudden emergency” instruction and urges trial courts only to use it in rare cases. there is no duty of extraordinary care. This is an objective standard and it is up to the jury to decide. Lindsay  Special treatment for minors. All jurisdictions use a special standard of care for children‟s conduct Peterson v. A particular child‟s can be found negligent if his actions fall short of what may reasonably be expected of children of similar capacity. be error to refuse to give it. B/c D was involved in a dangerous adult activity the special standard of care does not apply and the regular standard applies. P was found not to have acted as a reasonable disabled person would act (b/c he did not use aids such as cane or seeing eye dog). because you can say that a disabled person falls into the circumstances. (a) Test for emergency instruction: Applying the principles that (1) the party seeking the instruction had not been negligent prior to the emergency. child based on evidence at trial could still be found liable for contributory negligence using the child standard of care. Taylor  Special treatment for minors. (a) Intoxication: the actions of a person who was intoxicated at the time he or she was injured or caused an injury are evaluated with reference to the reasonable prudent person standard.

It is the combination of likelihood and seriousness that makes a risk serious. Considering all three factors the court decided that D owed a duty to P. c) Recklessness i) Reckless conduct is if a person knows of the risk of harm created by the conduct or knows facts that make the risk obvious to anyone in the person‟s situation. iii) Cases: (1) Sandler v. (2) Require a finding that the D was negligent unless the D offers contradictory evidence. Courts may treat proof of statutory violation both as establishing a standard of care and as evidence that the opponent‟s conduct was negligent. In addition the workers‟ compensation system exists to cover such issues (not the tort system) even if the workers‟ comp system is not adequate. If there was it was contributory negligence by P the buggy driver. the violation of the statute was negligence. but does not necessarily prove causation and actual harm. Commonwealth  Court found that conduct was not reckless. the buggy case. but it is up to the jury to decide if there was a causal connection between that negligence and the accident. (2) the reasonable foreseeability of harm to the person injured. but was not barred for suing under reckless conduct. the degree of risk of injury does not meet the standard established for recklessness in this case. ii) Recklessness falls in between negligence and intentional torts. Rusk  Mental disabilities. the proof of the violation will have special evidentiary effect. and (3) public policy concerns. a plaintiff must persuade the trier of fact that the opponent breached a duty. unlike in negligence cases. this was the tunnel bike fall case. Court seems to be saying that the person watching the D assumed the risk of watching them. This contrasts with a negligence case in which D should have known of the risk or should have known certain facts. i) Examples of how a plaintiff would show this are the following: (1) Violation of a statute (2) Not Following Industry Custom (3) Res Ipsa Loquitur ii) These types of proof may: (1) Require a finding that the D was negligent regardless of contradictory evidence. Parts 1 and 2 were met and out of public policy the court said that it would place too great a burden on D b/c that the potential for violence was the very reason he was institutionalized in the first place. The kind of injury that a person would suffer must be really severe to be in the category of recklessness. however court found D owed not duty to P b/c of three factors considered: (1) the relationship between the parties. or (3) Have no mandatory effect on the trial outcome b) Violation of a statute i) If the statute‟s purpose was to protect the injured party from the type of harm that occurred. iii) Cases: (1) Martin v. . 3) Proving Breach a) To recover damages in a tort suit. Typical tort law evaluates that conduct by comparing it with how a reasonable person without that mental disability would act for a mentally disabled person. In this case P was barred by statute for suing the city for negligence. It proves duty and breach. ii) Negligent conduct proved from a statute is only the first two prongs of all four requirements of negligence. Punitive damages are available. Herzog  Negligence per se. and the burden of eliminating the risk is slight. a patient at a mental hospital kicked one of people taking care of him and then they brought suit.(7) Creasy v.

ii) Courts tend to apply it only when four elements are present: (1) The type of injury was usually associated with negligence. You can set standards for yourself that exceed ordinary care and the fact that you've done that shouldn't be used as evidence tending to show the degree that you believe is ordinary. The evidentiary weight given to custom evidence is the same in both contexts. violation of landlord compliance with certain building codes. McDonald  negligence per se. (2) Elledge v. Matlock  negligence per se. If the school board would have adopted the guidelines then it would have been negligence per se. Compliance with a trade or industry custom is usually treated as relevant. (4) Sikora v. D had excuse b/c there was no way for landlord to know b/c D never knew about the violation and the city still gave a certificate to the building before D bought the condo. the P must prove that the harm that occurred was the type of harm the statute was designed to prevent. jury was not entitled to negligence per se instruction b/c it did not apply b/c the statute (of not selling cigarettes to minors) had nothing to do with stopping fires. but typically give less power to proof of violation of an industry custom than they give to proof of violation of a statute. which will not be good for public visiting those stores. The court in this instance goes above the industry custom and custom alone is not a suitable defense. Hooper  court rejected the industry custom defense and used the cost benefit analysis and said tugs should all have radios even though it wasn‟t the industry custom. the driver/companies violation of the statute was negligence per se and satisfies the breach requirement b/c the statute was intended to guard against the harm in the case. v. Wenzel  negligence per se. Court says that harm the statute was to protect was health risks and not fires so negligence per se is not applicable. You can set standards that exceed ordinary care. in addition to showing that the D violated the statute. that proof could support a number of conclusions. Therefore a negligence per se jury instruction was necessary. but since they didn‟t it is only evidence. Court‟s acknowledge this. d) Res Ipsa Loquitur i) Is Latin for “the thing speaks for itself”. the jury will be allowed to conclude that the D was negligent even though the P may not have introduced detailed or direct evidence about the precise shortcomings of D‟s actions. Therefore it cannot be used for a negligence per se instruction for the fire damage sustained by the pole company. (a) Evidence of an industry custom might be introduced to show that an actor‟s failure to follow it amounts to negligence or might be introduced to show that conduct in conformity with custom meets a standard of reasonable care. To obtain the benefit of the negligence per se doctrine. Wright  Wal-mart should be held to the reasonable person standard. c) Industry Custom i) If a litigant can show that an industry as a whole has a customary way of doing something. The court determines this due to public policy reasons that stores might not want to have higher standards b/c it could be used against them in court. even though the city originally rejected the design of the decks. (3) Wal-Mart Stores Inc. . ii) Cases: (1) The T. but not conclusive. not the stardard in which they want to hold themselves in their manual. When a P relies on the res ipsa loquitur doctrine. regulations (3) Wawanesa Mutual Insurance Co. but that shouldn‟t be used as evidence against the D. Key Questions to be used in analysis: Is P within the class of people the statute intended to protect and is the harm such that the statute was made to protect from? (a) This can also apply (as a general rule) to ordinances. v.J. Richland/Lexington School District Five  the standards of the industry should not have been excluded and then did not have to be adopted by the school board to be put in as evidence.(2) Thomas v.

v) Cases: (1) Byrne v. therefore he would not be liable. Goodrich Co. (2) Lyons v.(2) The D had exclusive control of whatever caused the injury. Some states apply another variation in the elements of res ipsa loquitur. A res ipsa instruction informs the jury that. Four factors introduced for the standard analysis. P was entitled to res ipsa jury instruction. the doctrine will entitle the P to a special jury instruction. (2) Shull v. In addition to the two basic elements.  P was injured when dock plate malfunctioned on D‟s loading dock. State of Louisiana. These policy based limits on liability are different from cause-in-fact. (3) The P had made no causal contribution to the harm. (a) This Indiana court uses the 2 step process in the case that was Indiana law to determine if res ipsa should be invoked. Midnight Sun Transportation Services Inc. c) Alternatives to the But-For Test i) A rigorous application of the but-for test would prevent a P from recovering in some cases where most people would believe that a D‟s actions actually did harm the P. tort law provides some other limits to liability. but that analysis has been updated. This concept is known as cause-in-fact. trial court erred in refusing to allow a res ipsa jury instruction. but still need to prove causation and harm. This is called the but-for test.F. Swann  P offered proof (expert testimony) as to the negligence of D of cleaning the plates instead of replacing them. lift was in exclusive control of D. Boadle  the barrel of flour that fell on P case. v. the jury may infer that the D was negligent. This requires proof that it is more than likely than not that the D‟s conduct was a cause of what happened to the P. 4) Legal Cause: Cause-in-Fact a) The P must show that there was a causal connection between the D‟s conduct and the P‟s harm. These cases . They require the P to show that the evidence for the harm‟s occurrence is more accessible to the D than to the P. per se? No. B. Pull the factors out of the case. would D be liable under neg. and (4) The D‟s access to information about the event was superior to the P‟s iii) Modern courts rarely refer to all four of these elements iv) At the end of trial. Department of Transportation and Development  the court uses the but-for test in that if the railing was higher P would have been less likely to fall from the bridge. but should still understand this analysis. (3) Dover Elevator Co.  the court used the but-for test in determing that D‟s negligence was not the cause of the harm. It means you can‟t show proof as to the cause b/c then D doesn‟t have superior knowledge over P anymore. In addition to the cause-in-fact requirement. and (2) the accident is one which in the ordinary course of things does not happen if those who control the instrumentality use proper care. by offering this evidence he was not entitled to a res ipsa jury instruction. some jurisdictions have required the P to show that the occurrence was not due to any voluntary action or contribution by the P. This doesn‟t mean expert testimony can be introduced. ii) Cases: (1) Cay v. it was P pulling out in front of traffic that was really not the but-for cause. b) Basic Cause-in-Fact: The But-For Test i) The question is whether the P would have been free from harm “but for” (in the absence of) the D‟s negligent conduct. b/c even thought there was duty and breach. (a) What about if there was a statute about speed limit. Idea here is to get benefit of res ipsa you cant say this is what actually happened then res ipsa instruction is not appropriate. Since no causation for the harm. despite the P‟s failure to offer direct evidence of what the D did wrong. Steps: (1) the injuring instrumentality is shown to have been under the exclusive control of the D.

The doctrine of multiple sufficient causes prevents each of the two tortfeasors from escaping liability by blaming the other. . If there are many causes and/or if causes other than a particular actor‟s conduct have a much greater effect in producing the harm. Fiberboard Paper Products Corp. (b) Brisboy v.may involve multiple actors where the conduct of each actor might have been sufficient to cause the harm. (2) Cases: (a) Shinn v. Once the P demonstrates that each of the D‟s acts would have been sufficient to cause the harm. This additional D‟s relationship to the P‟s harm might not satisfy the but-for test of causation. If one was so significant and consume a very small fire then. since the word may in the rule allows a court to find that some actors whose conduct was independently sufficient to cause the harm may not be liable for the harm caused. Railroad Company was liable for all damages even though there were two fires (one started by the railroad and one of unknown origin). Have to also think what role does each of them play.  Court found there was sufficient evidence of asbestos exposure to submit to the jury if it was a substantial factor (P was also cigarette smoker and that could have been a factor also so it was a question of fact of which was a substantial factor). but the concerted action theory makes the additional D liable to the P. the burden shifts to each D to avoid liability. will the legal system impose any liability at all on any one or more of those D‟s? The answer is often yes. (i) The “substantial factor” Test can limit an actor‟s liability. Most court‟s change the rules about who must prove cause. (2) Cases: (a) Kingston v. jointly engaged in the activity. RS §876 Persons Acting in Concert For harm resulting to a third person from the tortuous conduct of another. Court says that D didn‟t know that the other‟s conduct constitutes a breach of duty and did not give substantial assistance or encouragement to the other to conduct himself. Allen  The case in which D (a friend) was sued for drinking with his friend who got into a car and drove drunk. but assisted. Public policy reason: court is saying is that it is unconscionable that P should bear the loss and D should get off b/c P could not prove who the other person who was the other cause. Under circumstances that involve two or more actors. This doctrine removes the obligation to prove that each D‟s act was a but-for cause. 192. If each of several acts would be sufficient to produce the P‟s harm. one is subject to liability if he (a) Does a tortuous pg. Allows the (P) to hold someone else responsible even though they did not actually perform the tort. iii) Concert of Action (1) Concert of action and concerted action are names for a theory that sometimes permits a P who is injured by a D‟s tortious conduct to impose liability on some-one else in addition to the D. ii) Multiple Sufficient Causes (1) The but-for test could prevent a P‟s recovery in a case where conduct by each of two or more actors was sufficient independently to have caused the P‟s harm. then the D of the small fire would not be liable. (Commented on in Notes of Casebook) D‟s conduct was substantial. which is required. Chicago & Northwestern Railway Co. the actor will not be liable. each D must prove its act was not a substantial factor in producing the harm.

These include: (1) the nature of the wrongful act.but both in breach (b) 5 steps required.with knowledge that the other person is in breach. iv) Alternative Liability (1) There are some other multiple actor situations where all the actors have acted unreasonably but only one or some of them (not all of them) caused the harm. . separately considered constitutes a breach of duty to the third person (D) has the burden to absolve himself /prove that they are not the cause-in-fact. It will be up to them to absolve themselves and if they can‟t they will both be responsible. encouragement? What is Allens state of mind. Mere presence is not enough Type of assistance. Tice  The burden should be shifted to both D‟s that acted negligently in shooting while quail hunting.Restatement (Second) Torts §876 (a) Substantial Assistance. (c) Substantial Assistance. Used to get beyond a directed verdict (2) Cases: (a) Summers v. was it substantial.to find if Allen is responsible (i) Comment d to section 876 lists five factors that can be relevant to whether the defendant substantially assisted the wrongdoer. The court creates and uses the theory of alternative liability. One or both of the (d) will bear the financial costs of losing the case. (3) the relation of the defendant and the actor.get together and formulate a plan. The alternative liability theory exposes an actor to liability even when there is a possibility that the P‟s harm was entirely caused by someone else. (b) Common Plan. Restatement 876 (b) knows that the other‟s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself or (c) gives substantial assistance to the other in accomplishing a tortuous result and his own conduct. and (5) the defendant's state of mind. but may strategically withhold information. Both have Breached One of the reasons the usual burden of proof would be unfair in these cases is that the D‟s are likely to know better than the P which one caused the harm. public policy argument of negligent D‟s should bear the burden. This case is a framework for future cases. Does he have knowledge of Faggard‟s condition. they are jointly severly liable. Each would be responsible for the full amount of the damage if found to provide substantial Assistance. (2) the kind and amount of the assistance. RESTATEMENT (SECOND) OF TORTS 876 comment d (1977). (4) the presence or absence of the defendant at the occurrence of the wrongful act.

Did not plan it together. Schaffner  the case in which person moving over to make room in a truck accidentally hit the gas causing truck to pin D between it and a parked car. If one of them is not able to prove there not the cause they are jointly and severally liable each is liable to the full amount by themselves. Can she recover under the alternative liability theory? They were hoping to shift the burden of proof from the P to the woman who shifted her seat. Alternative Liability goes to Cause that (D)s were in breach identified the parties doesn‟t know which one caused breach. Risk of insolvency is on the (D)s.both (D)‟s in breach of a duty they owe to the (P). They are liable for the whole but the (P) can‟t collect more than then 100%.Action only need to prove one (D) was in breach of a duty they owe to the (P) and one (D) was helping. Limit to when you are able to show everyone is in breach. Gets beyond Directed verdict. Burden shifting isn‟t available unless the (P) can show the specific (d)s were in breach. No encouragement to act. Did not plan it together No encouragement to act. Court says this was not an appropriate case for alternative liability b/c there are 2 people involved but only one of them acted tortiously. Tice would have an action for contribution with Simonson. The doctrine requires the P to show that each person whose negligence might have caused the harm is a D in the lawsuit. This is different than Summers in that both acted tortiously. so alternative liability is not applicable. to participate in “a common plan or design to commit a tortuous act” Both D‟s are creating the same amount of risk. Equally likely that the shot could have come from either one of them.summers can collect from Tice. (P) settled with Malone so she only had one D. Both defendants are engaged in unreasonable conduct. paln it together. alternative liability doesn‟t apply to this case b/c P attempted to prove that a single tortfeasor committed a single tortious act. . so Tice would paid more than his prorada share 50%. Another element identified by the court was that all of the D‟s negligent conduct must have created similar risks. Sue them all and it is up to the (D)‟s to prove there not the one. Encouragement. Only one person acted tortiously. Concert -of. provides for joint and several liability on the part of all defendants having an understanding. not both. Difference Between Concert of Action and Alternative Liability. express or tacit. (b) Burke v. Severely.Seen in drag racing cases. If Simonson is broke Tice could be liable for the full 100%. Difference between Res Ipsa Loqituir.goes to breach Alternative Liability. Alternative Liability.goes to cause.

Alternative Liability Theory: (RS [Second] of Torts §433B[3]) (1) that two or more (all) defendants breach a duty to (P). (i) In NY: D can exculpate himself by saying that they didn‟t market DES for pregnancy use and will have responsibility for proving this. There are many problems brining suit against the companies who produced the drug: No records. (2)But there is uncertainty regarding which one caused the injury (3)The burden is upon each such actor to prove that he has not the harm (2) that plaintiff was injured as a proximate result of the wrongdoing of one of the defendants. This is the only way they can. D‟s can only be exempt if they prove that the DES they sold was not for pregnancy use. hard to prove cause-in-fact. don‟t know which company. and they duke it out. the innocent party should not bare the cost. etc. Eli Lilly and Company  Court chooses the use market share liability and uses a national market. While alternative liability is a general rule applying to a broad range of activities. Court first looks at alternative liability and says that this doesn‟t apply to this situation. time.Court denies summary judgment because there was a “Genuine issue of material fact” All (D)’s must be in court (law suit). (2) One difference is in the area of activity to which this theory applies. Idea is that this is a limited unique remedy and can only be applied to fungible (identical type products) products. (3) Cases: (a) Hymowitz v. Market Share Theory/Modified Alternative liability theory Connecting liability with the amount of risk the (D) created . definitely over the 20%. In NY P doesn‟t get full damages. committed tortuous acts. v) Market Share Liability (1) In some cases where a victim has been harmed by a product that was produced by a number of manufacturers to identical specifications. Only then will the burden shift to the defendants to prove that they were not the cause of plaintiff‟s injuries. Court in Sindell looked at only market share of CA. P would get only portion of damages based on the total market share of D‟s. By basing the market share by an national market then P and future P‟s will benefit from this b/c they will not have incur the expense. but only one is the cause. One way in which modified liability cases differ from alternative liability cases is that all of the D‟s who could have caused the harm to the P are not included in the lawsuit in a modified alternative liability case. and evidence trying to come up with a local market share. Assume it should be over 50%. This doctrine does not apply in cases where there is no proof that the conduct of more than one defendant has been tortuous. but the Brown case then made the market share a notional one. The court says in order to apply this remedy of market share liability is to bring suit of a substantial portion of the market. modified alternative liability has been applied only to cases involving unreasonably dangerous products. statute of limitations has passed. courts have given P‟s the benefit of a modified alternative liability theory. Liability in this case is not jointly and severely liable for D‟s.

Risk of insolvency falls on the (P) differs from alternative in that if one (D) is broke the (P) can collect all of the money from one (D). A national market covers everyone. Once one court has figured out who was involved every court can use to info. If elli had 30% of the market they caused 30% of the harm. The definition of the market will determine if the (D) can exculpate themselves from liability by stating that they did not sell their product in that market. Will likely result in a disproportion between the liability of individual manufacturers and the actual injuries each manufacturer caused in this state. Each (D) is severally liable. Based on a national market 2. so more manufacturers will prove that they were not involved. 2) Each defendant who could not prove that it did not actually injure plaintiff would be liable according to that Manufacturer‟s market share. The companies are competitors working independently. Alternative liability.looks across the country. 1) Loosened the requirement that all possible wrongdoers be before the court. (P) needs to have a substantial (D)‟s from a national market. National market is less connected to the (P). Where the products are not identical courts will not generally allow the use of market share liability. If you sue 60% manufactutrers you can only collect 60% They loosen the requirements in that all the (D) didn‟t have to breach. The drugs were fungible(identical). They could show they didn‟t make the product. only responsible for the percent of the market they have. The court looked at concert of action: would not work in this case because there was no parallel activity. Not all manufacturers. In this case the (P) is in a better position to know who caused the harm. To use market share they have to be fungible. or that they didn‟t make it for preganancy 1.is the idea that the burden is shifting because the (D) would have a better idea of what caused the harm. Over all the claims. Tice rationale in two ways. and instead made a “substantial share” sufficient. Court uses the national market. Every (D) does not have to be in front of the court just a substantial share or a majority. If they took a local market the cost involved in determining who was involved it would be expense. DES is a singular case Market share concept by modifying the Summers v. Over the long run each company will be paying for the amount of risk created by each individual company. No evidence they got together. .

and 4) joinder of enough of the manufacturers of the fungible or identical product to represent a substantial share of the market. 4. appears not to have caused a particular plaintiff‟s injury.  P has burden to show that in spite of the differences. 3) inability to identify the specific manufacturer of the product or products that brought about the plaintiff‟s injury or illness. with each having been found to have sold the same type product in a manner that made it unreasonably dangerous. Abex Corp.3. The liability of DES producers is several only. and should not be inflated when all participants in the market are not before the court in a particular case. equitably. Court says this case fails market share liability b/c % of quantity of asbestos was not close enough to qualify for MSL and also P‟s cited Wheeler case doesn‟t apply b/c the range of her case was much different. although a member of the market producing DES for Pregnancy use. Compared with Alternative Liability Theory: (RS [Second] of Torts §433B[3]) (1) that two or more defendants breach a duty to (P). if a DES producer satisfies its burden of proof of showing that it was not a member of the market of DES sold for pregnancy use. we decline to unleash the same forces to increase a defendant‟s liability beyond its fair share. measured by the amount of risk of injury each defendant created to the public-at-large. a defendant cannot be held liable if it did not participate in the marketing of DES for pregnancy use. there should be no exculpation of a defendant who. (b) Black v. (2)But there is uncertainty regarding which one caused the injury (3)The burden is upon each such actor to prove that he has not the harm . Apportion liability so as to correspond to the over-all culpability of each defendant. This will prevent some plaintiffs from recovering 100% of their damages. and thus. and not causation in a single case. 2) injury or illness due to a design hazard. committed tortuous acts. Market Share Liability/ Modified Alternative Liability 1) injury or illness occasioned by a fungible product (identical-type product) made by all of the defendants joined in the lawsuit. the products would produce equivalent risks of harm and did not show this and the amount of asbestos contained in the products varied greatly from manufacturer to manufacturer. Because liability here is based on the over-all risk produced. We eschewed exculpation to prevent the fortuitous avoidance of liability. disallowing exculpation would be unfair and unjust.

it is considered equitable to apportion liability based upon the percentage of products each defendant contributed to the entire market. as a result of (D)‟s negligence. which requires that plaintiffs establish causation by a preponderance of the evidence. and the negligent misdiagnosis or treatment caused that chance to drop to zero. Loss of Chance Theory Is consistent with our law of causation. Market share liability is premised upon the fact that the defendants have produced identical (or virtually identical) defective products which carry equivalent risks of harm. upon each defendant‟s product carrying an equal degree of risk. Through appropriate expert evidence. a decedent suffered a diminished likelihood of achieving a more favorable medical outcome. a plaintiff must prove by a preponderance of the evidence that the physician‟s negligence casued the plaintiff‟s likelihood of achieving a more favorable outcome to be diminished. Under the market share theory. If the patient had a 49% chance of survival.(2) that plaintiff was injured as a proximate result of the wrongdoing of one of the defendants. Reasons for loss of chance theory.if the patient had a 51% chance of survival. the estate is awarded full wrongful death damages. Only then will the burden shift to the defendants to prove that they were not the cause of plaintiff‟s injuries. the estate is awarded nothing. In order to prove loss of chance. This doctrine does not apply in cases where there is no proof that the conduct of more than one defendant has been tortuous. Numerous other courts have stressed the importance of a singular risk factor in market share cases vi) Liability for Lost Chance of Recovery or for Increased Risk of Eventual Harm (1) Cases: (a) Matsuyama v. This reasoning. . and the negligent misdiagnosis or treatment caused that chance to drop zero. 1. however. Birnbaum All-or-nothing doctrine. The physician will take every reasonable measure to obtain an optimal outcome for the patient. a (P) may be able to sustain her burden of showing that. 2.

This the amount to which the decedent would be entitled if the case were not a loss of chance case: the full amount of compensation for the decendant‟s death or injury.. the full amount of damages allowable for the injury. a plaintiff must prove that as a result of the defendant's negligence. relaxes the standard of proof of causation. 3) The fact finder must then calculate the chance of survival or cure that the patient had as a result of the medical malpractice. her chance of a better recovery was at least fifty-one percent. Court analyzes the three approaches to this. (2) what the P must prove. Lovett  P could not prove that D‟ alleged malpractice deprived her of a better than 50% chance of recovery. in the case of medical malpractice not resulting in death. Court adopts 3rd approach. and her resulting damages. treating lost opportunity as a separate injury. but who would have had only a fifty percent chance of full recovery from her condition with proper diagnosis. Understanding the approaches to whether there is recovery for loss of a chance involves three factors: (1) what the court identifies as the compensable harm. (ii) The second approach. is followed by a minority of courts. failure to recognize loss of chance in medical malpractice actions forces the party who is the least capable of preventing the harm to bear the consequences of the more capable party‟s negligence Proportional Damages Theory. the extent to which future damages were increased. a patient whose injury is negligently misdiagnosed. The causation requirement is relaxed by permitting . 4. According to this approach. Deriving the damages 1) The fact finder must first calculate the total amount of damages allowable for the death under the wrongful death statute. (i) The first approach. (a) Lord v. that is. The court adopted the majority rule. 2) The fact finder must next calculate the patient‟s chance of survival or cure immediately preceding (“but-for”) the medical malpractice. could not recover damages because she would be unable to prove that. a variation of the traditional approach. the traditional tort approach. 4) the fact finder must then subtract the amount derived in step 3 from the amount derived in step 2. absent the physician's negligence. 5) The fact finder must then multiply the amount determined in step 1 by the percentage calculated in step 4 to derive the proportional damages award for loss of chance. and (3) what damages are awarded. for which plaintiff could recover if she proved defendants' negligence caused that injury to her. or.3. by the preponderance of the evidence. Under this approach. it is not uncommon for patients to have a less than even chance of survival or of achieving a btter outcome when they present themselves for diagnosis. the plaintiff was deprived of at least a fifty-one percent chance of a more favorable outcome than she actually received.the percentage probability by which the defendant‟s tortuous conduct diminished the likelihood of achieving some more favorable outcome.

This is an issue of law. The plaintiff. the lost opportunity for a better outcome is itself. If no duty D is not liable. Shultz  treats the question whether damages awarded for loss of a partial chance of recovery should be related to size of the chance that the D‟s negligence destroyed. The similarity between the two analyses is foreseeability. even though the predicted likelihood of that occurance is small. (b) Albert v. This particular court had the all or nothing rule in the past. the D will not be liable if a court rules that the D did not owe a duty to the P or that the D‟s act was not a proximate cause of the P‟s harm i) Cases: (1) Palsgraf v. Cardozo talks about duty. however. (b) Andrews: Saying negligence existed and there was a duty. (c) Petriello v. Long Island Railway Co. a plaintiff may prevail even if her chances of a better recovery are less than fifty-one percent. a P who has est. What Andrews is saying negligence is there but still need to prove other things. . but just for the lost opportunity. Both are seeking to limit the liability if the D. Use a proportional basis determined by a percentage value of the patient‟s chance for a better outcome prior to the negligent act. so long as she could prove that the defendant's negligence increased her harm to some degree. As with the second approach. b/c she wasn‟t in the zone of danger. (iii) Under the third approach. Andrews=Jury (a) Cardozo: The P is an unforeseeable P. There is some point at which public policy dictates where the courts would cut off liability. the plaintiff may recover that portion of damages actually attributable to the defendant's negligence.  Both Cardozo and Andrews found D not liable. the injury for which the negligently injured person may recover. a breach of duty that was a substantial factor in causing a present injury which has resulted in an increased risk of future harm is entitled to compensation to the extent that the future harm is likely to occur. also shows calculation. but for different reasons. Andrews talks about proximate cause. the patient would not be precluded from recovering simply because her chance of a better recovery was less than fifty-one percent. Even if a D has acted tortiously and was the cause-in-fact of a P‟s harm. court allows recovery for a predicted consequence of the D‟s conduct. Kalman  D performed surgery on P that required corrective surgery leaving P with an 8 to 16 percent increased risk of future bowel adhesions and obstruction .plaintiffs to submit their cases to the jury upon demonstrating that a defendant's negligence more likely than not "increased the harm" to the plaintiff or "destroyed a substantial possibility" of achieving a more favorable outcome. does not receive damages for the entire injury. Under this approach. Court thinks that applying the 8-16% chance is better than applying the all or nothing rule. But P was only asking for 816% of future loss. but Cardozo goes towards Duty and Andrews goes towards proximate cause. In other words. Who has the power to limit the liability? Cardozo=Judge. 5) Limits on Liability: Duty and Proximate Cause a) Tort devotes considerable attention to separating the many harms a D‟s conduct causes into two categories: (1) harms that the D should be required to pay for and (2) harms whose costs the victims should bear themselves. in which the court decides. Read notes in book on page 227. but now they are getting rid of that rule. b) Duty i) Whether D has a duty to P. if the plaintiff can establish the causal link between the defendant's negligence and the lost opportunity. but the analysis would be proximate causation.

The legislature was outraged when the decision of the court and passed a statute (pg. there is no indication that P entrusted himself to the control of D and that P lost the ability to protect himself.  there was no special relationship between the P and D. Therefore D owed no duty to P. (a) Note about Kelly case which host was held liable. 235) limiting liability. foreseeability test.ii) Cases: (1) Hegyes v. Gus Macker Enterprises Inc. ii) Directness (1) The directness test treats a D‟s conduct that is a cause-in-fact of a P‟s harm as a proximate cause if there are no intervening forces between the D‟s act and P‟s harm. (a) A case where there was such a relationship was the movie theatre example. all that matters was that the board dropping was would cause damage. There is no duty to protect or aid another except when there is a special relationship. Louzoun  case in which landlord failed to provide hot water and P burned herself by boiling water on stove for bath. courts treat proximate cause as a question of fact for the jury. Board of Education of Montgomery County  the court ruled that school counselors had a duty to use reasonable means to attempt to prevent the suicide because they were on notice of the daughter's suicidal intent. “proximate” means that a D‟s act satisfies whatever policy criteria a jurisdiction uses to treat a harm a person causes as one the person must pay for. instead of as one that the person may inflict for free. Because the counselors and the board had the potential to successfully intervene. This is the majority view on this issue. (2) Dykema v. the court held that the daughter's suicide was not a superseding cause that exculpated the board and the counselors from liability. (4) Eisel v. Great public policy reasons and that there was only a minimal burden on the counselors. Unjian Enterprises Inc. Proximate cause doctrines reflect the idea that the D‟s conduct and the P‟s harm must have a connection that is reasonably close in order to justify imposing liability on the D. (3) Graff v. which limits appellate review. The mere likely result in the future is not enough. The jury has no opportunity to decide whether the car driver‟s negligence was a proximate cause of the baby‟s injuries once the court decides that the baby‟s injuries were not foreseeable. D is arguing the foreseeable test. (b) Laureano v. Courts have articulated three main approaches to proximate cause (directness test. which is required under the business-invitee relationship P is arguing. (2) Cases: (a) In Re Arbitration Between Polemis and Furness  It doesn‟t matter that the harm was foreseeable. court stated that the tenant's injuries would not have resulted from the failure to provide hot water alone. substantial factor test). In almost all cases. and cannot be classified as injuries normally to have been expected to ensue from the . In legal causation. The directness approach may lead to liability for unexpected consequences. Liability needs to be cut off at some point b/c what if she has future children will the D be liable. states that a negligent D must pay for damage related to negligent conduct “so long as the damage is in fact directly traceable” to that conduct. c) Proximate Cause i) The P must also satisfy the requirement of proximate cause. Beard  The court held that there was no common law duty on a social host who made alcohol available at a party to a guest who the host knew would drive. D was not liable b/c the injuries were not foreseeable. A phone call to the father would have satisfied the duty owed in this case. Under Cardozo the P in this situation is an unforeseeable plaintiff. P is arguing the direct test.  The court held conception or birth of a child conceived after an automobile accident by a woman who was injured in that accident is not a reasonably foreseeable result of the operation of a car and therefore there was no duty to P. as in this case. Even though D was cause-in-fact to the injuries.

Florida Power Corporation  P was injured when the machine he was operating struck respondent power company's underground electrical cable. iv) Substantial Factor (1) The substantial factor test treats a D‟s conduct as a proximate cause of a P‟s harm if the conduct is important enough. to justify liability. so it should be up to the jury to decide if D‟s arguments have validity. Reasonable people would not regard her actions as harm in the destruction of the vehicles b/c the damage was caused to how the company was removing parts of the damaged building a few days after the fire.landlord's conduct. It doesn‟t matter if those specific injuries were foreseeable. (i) In a second Kinsman case a group was suing for increased cost incurred to ship wheat b/c of the damage. (d) Petition of Kinsman Transit Co. (c) Schafer v. Spider Staging Corp. continuing the work with the rig like that was the substantial factor in the cause of his injuries. (b) McCain v.  The worker was injured while using one of the manufacturer's scaffolds in his sandblasting work. v. Hoffman  the thin skull jury instruction was appropriate and a tortfeasor must accept his victim as the victim was found. compared to other causes of the harm.  Where a ship floated away due to negligence and then crashed into a bridge (partly the bridge crew‟s neg. Thorne Equipment Company  The accumulation of trash on her property was too far removed factually and chronologically from American‟s harm to entitle a legal cause. b/c the collapse of a brick wall is plainly a reasonably foreseeable consequence of negligently designing and constructing such a wall without adequate supports in violation of building codes even though the exact sequence of the events leading to that collapse may have been entirely unforeseeable. “where it is evident that the influence of the actor's negligence is still a substantial factor. The court ruled for public policy that this was the point to cut off liability. The banging of the pots was a superseding intervening cause and therefore killed directness. This court is following the Andrews point of view. The court holds that where damages resulted from the same physical forces whose existence required the exercise of greater care than was displayed and were the same general sort that was expectable.) and damage to surrounding landowner‟s property. The proper inquiry is if the D‟s conduct created a foreseeable zone of risk NOT whether the D could foresee the specific injury that actually occurred. (2) Cases: (a) Tieder v. (c) Taylor v. Therefore it should be up to the jury. and the harm was caused by the demolition not by the fire itself. (b) Chelcher v. iii) Foreseeability (1) The foreseeability test treats a cause-in-fact as a proximate cause if the P‟s harm was reasonably foreseeable. unforeseeability of the exact developments and of the extent of loss will not limit liability. The substantial factor test for proximate cause generally ignores foreseeability. If a plaintiff happens to have an unusual weakness. Little  Could the negligence of D‟s be the proximate cause of the death even though the entire incident was bizarre and unforeseeable? Yes. the eggshell plaintiff rule requires the D to pay damages for an injury that could not have been foreseen. Was there failure to warn him a substantial factor in the injuries he incurred? No. (2) Cases: (a) American Truck Leasing Inc. mere . Jackson  The court cites the Restatement Second of Torts. b/c the fire was already put out before any harm was done to American.

Mountain  shows how the substantial factor test and the foreseeability test for proximate cause can be combined. foreseeability. The court found fault with the trial court‟s instructions to the jury because they blurred the distinction between the tests. 2. however. Exception is if you are in an area with a lot of criminal activity. (i) The Restatement 2nd of Torts says in effect that human fallibility of doctors can be foreseeable and this is within the scope of risk created by the D‟s negligence. The intervening conduct could have been anticipated and taking the risk of it was unreasonable (RISK TEST) (c) Weems v. The court uses a three part test to see if the intervening act is not superseding. Greene‟s conduct was negligent but did not sufficiently establish that his actions were “highly extraordinary” and reasonable minds could differ. (2) Cases: (a) Sumpter v. The act was a normal response to negligence that is reasonably foreseeable and a substantial factor in bringing about the harm. Hy-Vee Food Stores Inc.lapse of time.  Since the treatment was perfectly acceptable for the back pain and since medical treatment is foreseeable then the D should be held liable for something that goes wrong with the treatment unless the treatment was extraordinary. no matter how long it is. Cooley  The court is saying that a jury should decide whether the act of the theft of the car is superseding intervening and if he should be held liable for the accident of thief. is not sufficient to prevent it from being the legal cause of the other harm. It could reasonably have been anticipated. (d) Corbett v. Courts generally agree that a superseding cause is an unforeseeable act by a third party that intervenes (comes between) the D‟s act and the P‟s harm. or 3. (3) Cases: (a) Price v. the focus must be on the foreseeability of the intervening act rather than the forseeability of the harm that resulted or the P who was injured. (2) Typically if a defendant engages in criminal acts it is generally viewed as a superseding intervening event. Weisband  Could reasonable minds differ on the question of whether Dr. not b/c they included both tests. and substantial factor tests can sometimes be combined. An intervening act that was foreseeable. v) Combining Approaches (1) The directness. 6) Defenses . it will be characterized as superseding and will protect the D from liability. will not be superseding and will not protect the D from liability. (i) An intervening act will not be superseding (and relieve D of liability) if: 1. vi) Intervening and Superseding Forces (1) If the intervening act was not reasonably foreseeable to someone in the D‟s position. The jury should be making the decision if the negligence of the one doctor was highly extraordinary. If the jury decides that the event was not foreseeable then the event would be an intervening superseding event. (b) McClenahan v. Blaine Kern Artista Inc. Greene‟s decision to perform total knee replacement without knowledge of P‟s medical history was so highly extraordinary as to constitute a superseding act? The expert witnesses established that Dr. However phrased." The question of causation should have been decided by the trier of fact b/c reasonable minds could differ if the two hour period should insulate a negligent actor from a suit given the particular facts of this case.  The trier of fact (jury) could reasonably find that D should have foreseen the possibility of some sort of violent reaction ignited (the superseding force) by its representation of prominent political figures.

(2) Contributory negligence and comparative negligence jurisdictions use the same rules to determine whether a P or D was negligent. The two systems differ only in the effect they give to the P‟s negligence. reasoning that since it can be used to determine whether a person was negligent. Louisiana Power and Light Company  this is a pure comparative negligence jurisdiction. Most jurisdictions have now moved to the modern theory of comparative negligence to which there are three different approaches. (3) Cases: (a) Wright v. (2) “Pure” comparative negligence allows a contributory negligent P to recover some portion of his or her total damages as long as the D‟s negligence was also a proximate cause of the accident. (a) In one system. breach. (b) Dobson v. “the . ii) Traditional Common Law Treatment of a Plaintiff’s Negligence (1) Under traditional tort law (common law). Two main varieties of comparative negligence have been developed: pure and modified. Intermountain Health Care Inc. Under this rule a 49% share will allow recovery.  The are two rules and it has to be decided which rule applies to this case. a negligent P is allowed to recover damages only if his or her negligence is less than that of the D or D‟s. Under this system a P can be as much as 50% liable and still recover.a) Tort law recognizes a number of defenses that protect a D from liability for negligence even though a P might be able to establish duty. iii) Modern Comparative Treatment of a Plaintiff’s Negligence (1) Criticism of contributory negligence has led courts and legislatures to replace it with comparative negligence. This usually called the 49% rule. The court adopts the unit rule. (4) Cases: (a) McIntyre v. (c) Jensen v. (i) Unit Rule – the negligence of all D‟s is taken together in making the comparison to P‟s negligence (ii) Wisconsin Rule. Norfolk and Western Railway Co. the less likely a P will be to recover iv) Reckless Conduct (1) When a negligent P sought damages from a reckless D. Problem: the more D‟s who inflict an injury. and damages. (3) “Modified” Comparative Negligence has been adopted in two forms. but a 50% share will not. Balentine  the court adopts the 49% rule for comparative negligence b/c court in this situation feels that it is really distasteful to recover if the P is mostly liable. it can also be used to determine how negligent one person was compared to another. (b) The other form of modified comparative negligence allows a negligent P to recover damages only if his or her negligence is less than or equal to that of the D or D‟s. b) Plaintiff’s Contributory Fault i) Common law treated a P‟s negligence under the doctrine of contributory negligence. a P‟s negligent conduct was a complete bar to recovery if it was one of the legal causes of the P‟s injury.  P (dump truck driver) was barred from recovery due to his own contributory negligence (of having the radio on and driving onto the RR tracks that he was very familiar with b/c he drive over them numerous times before and lived very close to them. Another doctrine. the negligent P was protected from the ordinary recovery-barring effect of his or her negligence. making it a complete bar to a P‟s recovery no matter how small a contribution that negligence had made to the plaintiff‟s injury. causation. the court used the Learned Hand approach to negligence. This is usually called the 50% rule.the negligence of each D is compared against the P‟s negligence to determine whether a particular D is liable.

in exercising a superior bargaining power. ii) Express Assumption of Risk (1) Express assumption of risk cases involve agreements by P‟s to accept risks created by D‟s activities. or at least for any member coming within certain established standards 4. its employees or agents (b) Turnbough v. . Courts want waivers to be more specific b/c then P will know fully the extent of the risk. Court found that her negligence rose to the level of recklessness of the D so she doesn‟t get to recover. (2) Cases: (a) Coleman v. in the economic setting of the transaction. does the particular release provided by the P merit enforcement? (2) Cases: (a) Wagenblast v. the person or property of members of the public seeking such services must be placed under the control of the furnisher of the services. The party seeking exculpation is engaged in performing a service of great importance to the public which is often a matter of practical necessity for some members of the public 3. c) Assumption of Risk i) The concept of assumption of risk provides that person can give up the right to sue the D for harms that might be caused in the future by D‟s negligence. Enforceability of a release involves two questions: (2) Does public policy permit releases in connection with the activity? (2) If public policy allows assumption of risk for that activity. (i) The last clear chance doctrine is an all or nothing doctrine of recovery. the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks the services 5. iii) Implied Assumption of Risk (1) Tort law recognizes two kinds of implied assumption of risk. P went with D in car even though she was offered a ride from her friend. Agreements are subject to close judicial scrutiny and are not upheld unless the intention of the parties is expressed in clear and unmistakable language. The agreement concerns an endeavor of a type generally thought suitable for public regulation 2.last clear chance” doctrine. (b) Downing v. P and D drank together and both knew D was going to have to drive. subject to the risk of carelessness on the part of the furnisher. the D provides a service or product to the P. Ladner  Waiver for scuba diving was too broad. In exchange. Hines  “last clear chance” doctrine. the party confronts the public with a standardized adhesion K of exculpation and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence 6. Odessa School District  Court uses 6 part test to see if the school‟s release form for sports was against public policy. Such party holds itself out as willing to perform this service for any member of the public who seeks it. They almost always involve written releases in which a P agrees not to sue a D if certain risks cause harm. United Auto Racing Association  The evidence was sufficient that D was reckless and the court affirmed a reduced jury verdict due to P‟s comparative fault. Allowed a negligent P to recover if injured in circumstances where the D‟s failure to act carefully was especially egregious. It is not reasonable to assume that a student would intend to waive his right to recover from instructors that fail to follow even the most basic industry safety standards. b/c of the essential nature of the service. (i) Factors Test to determine whether exculpatory agreements violate public policy: 1.

 The court held that although the evidence of the buyer's failure to mitigate damages was weak. d) Mitigation and Avoidable Consequences i) A P who is hurt can seek medical attention to mitigate the extent of the harm after an accident.(2) One is Primary Implied Assumption of Risk. (b) Davenport v. It describes situations in which a court concludes or a statute states that the D has no duty to the P or has not breached a duty to the P. e) Immunities . It bars the P‟s recovery even though the P acted reasonably. a plaintiff was not barred from recovery by the doctrine of assumption of risk unless the degree of fault arising therefrom was greater than the negligence of the defendant. there was evidence that the buyer did not follow the recommendations of his doctor. she was informed about the risk. Cotton Hope Plantation Horizontal Property Regime  the P‟s assumption of risk was just a factor and did not bar recovery under this jurisdictions comparative negligence system. and thus the trial court's instruction on mitigation of damages was proper because even scant evidence may support an instruction on failure to mitigate damages. Therefore. This type of assumption of risk is often called secondary unqualified implied assumption of risk. These cases illustrate contrasting ways courts reduce damages to reflect a P‟s postaccident failure to mitigate harm. This doctrine serves as a defense for a D who would otherwise be liable for tortious conduct. (i) The court concluded that the absolute defense of assumption of risk was inconsistent with South Carolina's comparative negligence system. Superior Court  Minority position. There is evidence from one of Connie‟s doctors that additional chiropractic treatments would have helped her condition and this evidence supports the submission of the mitigation of damage issue. (3) Law v. (2) Klanseck v. The court disagrees b/c the Iowa Comparative Fault Act clearly provides the unreasonable failure to mitigate damages means fault as used in the statute. While secondary implied assumption of risk is a defense. (4) Cases: (a) Schroyer v McNeal  P assumed the risk when she decided to walk across the snow and ice multiple times. The majority of decisions since Law have rejected its position. the court held that evidence of seat belt nonuse was admissible under certain circumstances to mitigate damages. he would not be barred from recovery unless his negligence exceeded the defendant's negligence. by contrast. Anderson Sales & Service Inc. Eichhorn  The court does not agree with P‟s objection to the damage instruction that claimed the failure to mitigate damages is not fault. primary implied assumption of risk is a rebuttal to the P‟s arguments for duty and breach. The proximate cause of the person‟s injury was b/c they assumed the risk. iii) Cases: (1) Miller v. (3) Secondary Implied Assumption of Risk requires a subjective test of whether the P actually knew and appreciated the risk created by the D‟s wrongful conduct and voluntarily accepted the risk. The court stated that even if the injured party assumed the risk of injury. ii) The majority view about mitigation of damages is only applicable to things done or not done after the accident. is an argument that the D did not breach a duty to the P. The court concluded that a plaintiff's conduct in assuming a risk could be compared with the defendant's negligence and that a plaintiff's conduct in assuming the risk could be made a part of the comparative fault system. Primary implied assumption of risk.

This bar was meant to preserve family harmony. the scope of the common law parental immunity exemption was limited to conduct that constituted the exercise of parental authority. All levels of government now allow themselves to be sued for some categories of activities. There shouldn‟t be a different rule for married people than not married people. charter. ii) Intrafamilial Immunity (1) Common law rules traditionally prevented suits by one family member against another. (4) Cases: (a) Coulthurst v. If the function is a ministerial act. that immunity has been modified in various ways for all levels of government. the performance of parental supervision.S. it is proprietary. and to avoid using judicial resources just to transfer wealth from one family member to another.” the U. (2) The most notable exception to the Federal Tort Claims Act‟s authorization of suits against the government precludes suits based on discretionary functions. Boone  If the parties were not married then the wife would gave been able to sustain a suit against the husband and the court holds that barring a suit for this reason the doctrine of interspousal immunity goes against natural justice and thus violates the public policy of SC. discretionary. A function is considered governmental if it is the exercise of an entity's political. (b) Braodwell v. or legislative authority.i) Sovereign Immunity (1) Because “the king can do no wrong. . Jurisdictions have made a wide variety of changes to these doctrines. is the discretionary function exception (“DFE”) which does not allow recovery for suits based upon the exercise or performance or failure to exercise or perform a discretionary function. (2) Cases: (a) Boone v. when the allegedly negligent act is one involving the maintenance or operation of the service being provided. 2nd part of test: this decision is not grounded in public policy. and the provision of parental care and custody. but are not immune when performing proprietary functions. bringing the bar down on his shoulders and neck. the mother‟s driving a car and getting into an accident does not fall within the scope of the parental immunity exception.” at one time federal and state governments were all immune from suit. United States  Plaintiff federal prisoner was injured when a cable on a weight machine snapped. Generally speaking. Holmes  Court chose to follow the Illinois standard. "assumed in consideration of the privileges conferred by ." and involves no discretion. But if the inspector was negligent in the inspection by say laziness then the DFE would not cover it. Chesterfield County Health Commission  Municipal corporations are immune when providing governmental functions. (b) Carter v. as set out in 28 USC 2680(a). to protect insurance companies from false claims. . 1. in that they involve an "element of judgment or choice" and are not compelled by statute or regulation and (2) the judgment or choice in question must be grounded in "considerations of public policy" or susceptible to policy analysis. (i) The DFE test: A suit is barred if the two conditions are met. A significant limitation on the waiver of immunity of the U. 1st part of test: The cause of action not covered was there discretion of how often to check the equipment. (1) the acts alleged to be negligent must be discretionary. Court also gave expansive reading to his complaint. the function is deemed to be proprietary. (3) Because section 1346 waives sovereign immunity only for a “negligent or wrongful act or omission. . At present.S. government cannot be held liable under strict liabilities theoriestheories that do not require proof of fault.

Traditional negligence concepts cannot be applied to situations in which the parental relationship is involved. B/c of the difference in work conditions a rational basis exists for the legislative classifications in the statute b/c the contractor and/or architect can only test designs and plans in a limited fashion. Professional prudence is defined by actual or accepted practice w/in the profession. clothing. in selecting a local or national context for evaluating their conduct. in this case. St. Stat. ii) A statute of limitations relates to the time a P should reasonably have known that he or she had a legal claim and bars a claim unless it is filed within a certain period after that time. Ann. f) Statutes of Limitation and Repose i) Tort law imposes two types of limits on the length of time that may elapse between an injury and the filing of a lawsuit about the injury. Irwin Memorial Blood Bank  Son of P contracted the AIDS virus due to a blood transfusion during heart surgery. patient and wife. The court found that the instructions needed to be improved and revised. housing. b) Professional Standard’s Basic Definition and Rationale i) Cases: (1) Osborn v. even if the statute of limitations would not bar the claim. the court held that the statute did not violate due process because the legislature's choice of a 10 year cut-off for construction related tort actions was neither unreasonable nor arbitrary. rather than theories about what “should” have been done.M. medical and dental services and other care. but held that: he instruction properly defined reasonable care as that which was usually exercised in the . (2) Kern v. Knowlton Construction Company  statute of repose case. Citizens Bank of Massachusetts  the statute of limitations has passed to bring this case. His failure to investigate facts that could have been known to him immediately after the robbery barred the claim under the discovery rule and ultimately under the statute of limitations. although the court acknowledged that N. iv) Cases: (1) Hanley v. claiming that the doctor did not use reasonable care and caused the patient's blindness. this is the majority view. and Court says the discovery exception doesn‟t apply b/c he did not take steps to find out if the banks lack of action was negligent. 7) Professionals a) This section examines issues in defining the standard of care for professionals. the court reversed the lower courts' decisions and remanded to the trial court because a genuine issue of material fact existed as to whether respondents fraudulently concealed medical malpractice. (ii) The court doesn‟t accept the Goller standard: the scope of the common law parental immunity exemption was limited to conduct within the exercise of ordinary parental discretion with respect to the provision of food. in which it was later found out that the specific hospital gave excessive radiation treatments for cancer. said concealment possibly tolling the limitations period. Joseph’s Hospital  statute of limitations case. 41-5-13 statute of limitations applied. (2) Nowatske v. brought a medical malpractice claim against defendant doctor in the Circuit Court for Winnebago County (Wisconsin). and in determining when these cases should require the use of expert testimony. Osterloh  Plaintiffs. no blood bank in the country was doing what P‟s expert‟s standard of care would require. and the statute satisfied a proper public purpose of preventing stale litigation and its attendant risks. The doctor turned away to question asked about stopping cancer treatments abruptly. iii) A statute of repose relates to the time when a D committed the act or omission that is the basis for a P‟s claim and bars a claim unless it is filed within a certain period after that time. (3) Sedar v.(i) The court doesn‟t accept the CA reasonable parent standard.

The disparity between rural and urban healthy care has diminished and justification for the locality rule is decreasing. unreasonable risk of harm. the instruction on other methods of treatment required the jury to determine the existence of other methods and the doctor could have also failed to use reasonable care in using the other method. ii) Common Knowledge (1) Cases within the range of laypeople‟s knowledge may go to the jury in the absence of expert testimony about the professional standard. the P need only prove the D‟s conduct presented a foreseeable. (2) Cases: (a) McGraw v. this measured D‟s conduct against that of other doctors in the same community. Also will be difficult to find expert witnesses to testify. Volkswagen of America  Car flipped over and battery acid dripped on baby in car. Joseph’s Hospital  Do we always need expert testimony in medical malpractice cases? No. and prudent practitioners in the same class to which he belongs. Public Policy rational: courts are spending too much time and money on determining what is a similar community. availability of facilities. This is called the layman‟s or common knowledge exception. iii) Informed Consent . (3) Rossell v. D wants to be held to a professional standard of care. In this case the jurors can use common sense to see if the hospital was negligent in dropping the patient. Rule: Special groups will be allowed to create their own std. advances in the profession.same or similar circumstances by the average physician. Also will keep the same bad standard of care in communities. Doan  Doctors should be held to the national standard instead of a locality standard. This is the majority rule. with due regard for the state of medical science at the time of treatment. and proficiency exercised by reasonably careful. The court discusses three standards: the strict locality rule. and whether the doctor is a specialist or general practitioner. Jurisdictions have taken a range of positions regarding this and the case below discusses one jurisdiction‟s approach to deciding the locality rule or a national standard of care. acting under the same or similar circumstances. (i) Strict locality rule: (ii) Modified locality Rule: less stringent than the strict locality rule. (2) Cases: (a) Vergara v. of reasonable prudence only when the nature of the group and its special relationship with its clients assure society that those standards. Malpractice cases where lack of care or want of skill is so gross. (i) “common knowledge exception” to expert testimony: In med. skillful. Court points out that car manufacturer‟s have a profit motive more than professionals and that they should not be held to the same standard as professionals. St. Will be set with primary regard to protection of the public rather than to such considerations as increased profitability. Factors to consider – locality. so as to be apparent … failure to present expert testimony on the accepted std/ of care is not fatal to a P‟s prima facie showing of negligence. the modified locality rule. (iii) National Standard: “a physician must exercise that degree of care. c) Applying the Professional Standard in Medical Cases i) Geographic Scope of Professional Standard (1) In its earliest forms. and the national standard. the focus was on reasonable rather than customary practices. the professional standard referred to practice by professionals in the same community as the D professional. skill. In determining what reasonable care for manufacturers is.

Every defendant in whose custody plaintiff was placed had to exercise care that no unnecessary harm came to him. This makes sense b/c the attorney is licensed under the authority of the State Bar Examiners and everyone in the same state should be held to the same standard if they have to satisfy the same requirements to be licensed. (i) "reasonable physician" or "professional" standard: what a reasonable doctor would think a what a patient should be told. Spangard  Can a patient claim res ipsa loquitur in multiple D cases where the P cannot distinguish who caused the harm? Yes. (2) In all jurisdictions. liability may be imposed upon a hospital for their negligent acts of doctors. (3) Unconscious patient can‟t sue for not having given informed consent and consent is implied informed consent.e. esp. AND.. that there was a causal link between the lack of information and the patient‟s consent to treatment. (4) Cases: (a) Largey v. Rothman  Should doctors use the professional standard or the prudent patient standard? The court chooses the prudent patient standard and is the best approach. it is up to the doctors then to show they are not liable (to exculpate them selves). this is an objective standard of what a reasonable patient should be informed. to recover damages on an informed consent theory. (2) Fishman v. (ii) "reasonable patient" or "prudent patient" standard: a duty on the part of a physician to warn of the dangers in the proposed treatment. ii) Cases: (1) Russo v. the state to determine the applicable standard of care. . Brooks  An attorney who has not held himself out as a specialist owes his client a duty to exercise the degree of care and skill of the average qualified practitioner. not the locality rule. Under doctrine of Respondeat superior. if some of the professionals treat the P simultaneously. Griffin  Court must decide from the locality rule and a state-wide rule. The following famous case shows one pro-plaintiff approach to the problem. all defendants who had any control over his body or the instrumentalities which might have caused the injuries were inferred negligent and had to give an explanation of their conduct. nurses and specialists that engage the patient. Tort law evaluates their conduct with a professional standard of care. (2) Cases: (a) Ybarra v. d) Legal Malpractice and the Professional Standard i) Attorneys are sometimes D‟s in professional malpractice suits. The court held that the applicable geographic scope of reference should be the jurisdiction where the attorney has been licensed. i.(1) All courts agree that doctors must obtain informed consent from their patients before performing procedures on them. They disagree about the standard for judging whether a doctor has provided enough information to a patient to satisfy the informed consent process. iv) Identifying the Defendant (1) Identifying the proper P can be problematic for a P injured in the course of treatment by numerous medical professionals. and that the patient suffered an injury. (i) Court held: where a plaintiff received unusual injuries while unconscious and in the course of medical treatment. and to impart information that the patient has every right to expect as well as a duty of reasonable disclosure of the choices with respect to proposed therapy and the dangers inherently and potentially involved. the P must show that the D provided less information than the jurisdiction‟s standards required the D to provide.

(i) Requirements for attractive nuisance Restatement (Second) of Torts: 1. Corkran  The predominant view is that ordinary domesticated animals do not constitute “an unreasonable risk of death or serious bodily harm to children” as the doctrine of attractive nuisance requires. the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children. and a different standard of care is applied for the protection of each kind. Court says this is a question of fairness and there is a public policy rationale in lowering the standard of care for the owner. With domesticated animals usually negligence will be implied instead of strict liability for wild animals. the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass. all trespassers receive the treatment the Ryals court described as the general rule in its state: a landowner can be liable to a trespasser only for intentional torts and for reckless or wanton conduct. In doing so they concluded from testimony evidence that the minor appreciated the risk inherent in placing an eel on a live electrical wire surrounding the electrical sub-station. (c) North Hardin Developers Inc. This case shows the trial within a trial of figuring out the liability and damages. United States Steel Corporation  the court held that the degree of care that a landowner owed a trespasser who wrongfully entered the land to commit a crime was the duty not to intentionally injure a trespasser. ii) Licensees and Invitees . Dissent shows some good points and case should have survived the summary judgment motion.An attorney who violates this duty is liable to his client for any reasonably foreseeable loss caused by his negligence. In other jurisdictions. the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved. a licensee. 8) Owners and Occupiers of Land a) The traditional approach to liability of landowners and occupiers categorizes the injured person as a trespasser. Calculate the damages that there would be in the original case (trial in the trial) and then apply that to settlement amount. and e. (i) In some jurisdictions. A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if a. all trespassers receive the treatment the Ryals court developed for individuals who trespass for the purpose of committing a crime. the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it. or an invitee. and b. (b) Merrill v. v. Unless it is known that the animal has a violent propensity. the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children. and d. Modern doctrines in a number of jurisdictions abandon some or all of these classifications or change the standard of care for evaluating land possessors‟ conduct. Central Maine Power Company  court discusses the attractive nuisance exception to the trespasser rule for children. b) Traditional Rules i) Trespassers (1) Cases: (a) Ryals v. Counsel fees that would have been taken for the original case are not deducted. and c.

focused on the mode of operation. (b) Richardson v. A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public. court is making a decision about two different theories: 1. From the P‟s point of view. (i) P in this case would be considered a business invitee. 2. (b) Cases: (i) Nisivoccia v. and (b) should expect that they will not discover or realize the danger. ideal proof would be evidence that the D had known about the hazard and failed to remove it. In most cases. a plaintiff seeks damages for injuries suffered in a fall at a D‟s premises. Another approach. he (a) knows or by the exercise of reasonable care would discover the condition. (i) Restatement 2nd Torts Define Invitee: 1. (3) Slip-and-Fall Cases (a) In “slip and fall” cases. (4) Open and Obvious Dangers.  slip and fall case. P‟s are unable to produce testimony showing a D‟s actual knowledge of debris or objects on the D‟s floor. P was a licensee under Texas law.  Restatement (Second) of Torts: A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if. A D will be treated as if he or she had actual knowledge of a hazardous condition if there is proof supporting the conclusion that the condition was present for a significant period of time prior to P‟ injury. mode of operation: if there is something dangerous inherent in the way they do business.(1) For entrants who are not trespassers. and should realize that it involves an unreasonable risk of harm to such invitees. The Commodore Inc. Hale  The court held that because P was a social guest. which is not to injure the licensee by willful. 3. and (c) fails to exercise reasonable care to protect them against the danger. but only if. An invitee is either a public invitee or a business visitor. or will fail to protect themselves against it. land owners owe a level of care to invitees that is often described simply as “reasonable care” and is significantly higher than the care owed to a licensee. Glass Gardens Inc. Court chooses the mode of operation theory and finds P was entitled to an inference of negligence. In one. and because he was not expecting payment for cutting down the tree. 3. wanton. classification as either a licensee or an invitee can be outcome-determinative. or grossly negligent conduct and must use reasonable care to warn about or to make reasonably safe a dangerous condition that the owner knows and the licensee did not know. a P may establish constructive notice of a hazard. Tort law has responded by developing two doctrines. (2) Cases: (a) Knorpp v. Natural Accumulations . In contrast. constructive knowledge: if they knew or should have known by them being there for a long time or 2. A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land. The court found sufficient evidence to create a jury question as to whether reasonable care warranted an inspection of the plaster ceiling and whether such an inspection would have alerted defendants to its dangerous condition. treats a D as having actual knowledge of a hazardous condition if the D has chosen to operate an enterprise in a way that makes it likely that dangerous conditions will occur often.

apply equally to wind? Yes 1. Totality of circumstances: patrons are not limited to past experience in establishing that a new business owes them a duty of protection from criminal conduct by third persons. 2. which immunizes D‟s from liability. (b) Cases: (i) Valance v. and the proffered offenses apparently must be not only of the same type and nature as the offense complained of. Negligence by lessor in making repairs. This general immunity has been limited somewhat with doctrines that identify specific circumstances in which a landlord might be liable to tenant or tenant‟s guest for injuries related to the condition of leased premises. the court believes that the totality of circumstances is the better reasoned test in determining foreseeability. A proprietor does not owe a duty of care to invitees to prevent the natural consequences of wind on his premises where he has not created or aggravated the naturally existing condition. 5. Occupiers of land have increasingly become subject to liability to invitees for conduct that contributed to an attack on an invitee. 1. All 6 exceptions do not apply to this case. (b) Cases: (i) Seibert v. snow. foreseeability of criminal conduct may be established by the place and character of the business. Parts of land retained in lessor's control which lessee is entitled to use. Exception 6 talked about doesn‟t apply in this case because the lessee knew of the defect and they are in the best position to be able to warn their guests of potential harm. Vic Regnier Builders Inc. Conditions dangerous to persons outside of the premises. (5) Criminal Conduct by Third Parties (a) Crime victims sometimes seek to impose liability on others who are associated with the crime. 4. Roseberry  The tenant had a friend come over for dinner and on the way home the friend slipped on the steps and received personal injuries. 3. or ice). The circumstances must however have a direct relationship to the harm incurred in regard to foreseeability.  Did the trial court err in applying the "prior similar incidents" rule instead of the broader “totality of circumstances” rule? Yes.  Do the same policy reasons that support the openand-obvious danger exception and the natural-accumulation-of-ice-and snow rule. The duty would be to warn the person of the danger. Where lessor contracts to repair. . The tenant in this case would owe the duty not the landlord. Premises leased for admission of the public. Vi-Doug Inc. 6. Undisclosed dangerous conditions known to lessor and unknown to the lessee. but also must have occurred with some frequency. A plaintiff is in a superior position to protect against hazards caused by wind at the moment it is encountered. The court talks about 6 exceptions to non-liability of a landlord. (2) Cases: (a) Borders v. iii) Liability to Tenants and their Guests (1) The common law‟s primary position has been that landlords do not owe any duty of care to tenants with regard to safety of leased premises. (i) 6 exceptions: 1.(a) Common law doctrines have moderated the obligations of landowners to licensees and invitees where a hazard is open and obvious or where it is the result of a natural accumulation (usually of water. Prior similar incidents' test of foreseeability: the occurrence of prior offenses on the premises is a key element of proof. 2.

landowners now owe all entrants a duty of reasonable care. That they have gone this far in that case.c) Modern Approaches i) Dissatisfaction with the process of resolving land entrant cases according to the threecategory system of trespasser. (i) However. (b) Moody v. American Suzuki Motor Corp. 9) Special Duty Rules a) Duty to Rescue or Protect i) Tort law does not generally require one person to rescue another from harm. The court does this because it would be inconsistent with a landlord's continuing duty to repair premises imposed under the URLTA to exempt from tort liability a landlord who fails in this duty. Delta Western Inc. iv) Protecting Third Parties from Criminal Attacks or Disease . tort law has special rules defining the obligations of those who choose to become rescuers. EMT‟s. Exceptions to the no-duty rule have developed. (2) Cases: (a) Nelson v. Adamar of New Jersey Inc. Freeland  The distinction between licensees and invitees as determining duty of care owed by landowner is abolished and replaced by a standard of reasonable care toward all lawful visitors (the separate distinction for trespassers still remains). Court also uses Webb v.  Court cites Wagner case that “danger invites rescue” and now D has liability/duty to the rescuer. In addition. licensee. and invitee has led many states to modify that common law doctrine. and a fact issue as to whether owners exercised reasonable care precluded summary judgment in their favor. now they can go further is expanding landlord‟s liability. iii) Obligations to Rescuers (1) Cases: (a) McCoy v. etc. some have rejected the detailed structure of the common law‟s landlord immunity system. … that is similar and abandons the categories. despite the foreseeability of harm to that other person.  The firefighters rule preempts them from suing b/c they are paid to do this and in result the taxpayers would be paying twice. Other states have combined the licensee and invitee category to develop a system with two categories: lawful entrants and trespassers. If P‟s argument is accepted then Casino would have to have licensed physician. (i) CA case differed in that they combined all three categories including trespasser. Court rejects this. but the court in this situation did not fully adopt this. Magill  The court now further expands the landlord's duty of care.  Court says that Casino met its duty of care even if they volunteered to do more and even if it was a employee/employer relationship. iii) Changes in Landlord-Tenant Doctrines (1) Just as some states have abrogated the three-category approach to landowner-land entrant cases. (i) URLTA is used by court as persuasive authority (even though it is not directly on point). This would apply to police officers. rescuer is not allowed to be reckless. ii) General No-Duty-to-Rescue Rule and Its Exceptions (1) Cases: (a) Lundy v. fireman. ii) Rejection of the Three-Category System (1) In some states. (2) Cases: (a) Newton v.

(ii) Court says duty was satisfied by professional telling D to not go back to the house in a phone call (iii) Where a potentially violent person makes a general threat. The Pennsylvania Railroad Co. b) Duty Limited by Type of Harm i) Negligently Inflicted Emotional Distress (1) In cases where a D‟s negligent conduct causes the P to suffer a physical injury at the time of the D‟s conduct. a duty to warn may not arise. (b) Bradshaw v.(1) In the medical context. but the injured party can recover for injuries sustained where she could prove she was in the “zone of danger. Zahner  The court held that any non-family "relationship" failed. and when the professional. the court says that it is too difficult to define what constitutes a human companion and what constitutes a companion animal (b/c humans have the capacity to form an emotional bond w/ almost anything). or should determine under the standards of the mental health profession that his patient presents a serious danger of violence to the 3rd party. Philadelphia Center for Human Development Inc. as a matter of law. to qualify for negligent infliction of emotional distress standing. Lieb  Rule – a plaintiff bystander has a cause of action for negligently inflicted foreseeable emotional distress upon a showing of marital or intimate familial relationship w/ a victim who was seriously injured or killed as a result of the proven negligence of a defendant (i) The court modifies the rule from Dillon v. Daniel  the existence of the physician-patient relationship is sufficient to impose a duty to warn identifiable third parties in the patient‟s immediate family against foreseeable risks emanating from a patients illness/disease. (2) Cases: (a) Robb v.  The court held that although there could be no recovery for fright alone. Public Policy concerns are insufficient to deny recovery of negligently inflicted emotional distress (c) Grotts v. the threat is made against a specifically identified or readily identifiable victim. 2. (i) the court rejects the “impact rule”: a party may only recover when a physical injury is the direct result of a D‟s actions (fright is not a cause of action and injuries due to fright are too difficult to disprove) (b) James v. (2) Cases: (a) Emerich v. determines. 3. the existence of special and immediate threat of serious bodily injury that has been communicated to the professional.  (i) a professional has a duty to warn a 3rd party when: 1.” and that she suffered physical injuries as a result of her fright. City of Racine  there is no basis for recovery for negligent infliction of emotional distress for seeing a pet killed due to public policy concerns . all courts allow the P to recover damages for the immediate physical harm and also for emotional harm associated with that initial physical harm. (d) Rabideau v. Legg (CA) which abolished the “zone of danger” rule and allowed a bystander to recover for negligently inflicted emotional distress. some courts have taken positions that require affirmative acts by health care professionals who have an opportunity to protect strangers from danger. courts have had difficulty with cases where a P suffers no initial physical injury due to the D‟s negligent conduct but claims that the D‟s conduct caused emotional injury. ii) “Mere Economic” Harm . On the other hand.

(1) Cases in which a D‟s conduct causes physical harm to a P‟s property always allow recovery of economic damages. parents claim that they would have aborted the pregnancy if they had received accurate genetic or diagnostic information. Consolidated Rail Corp. but court rejects it. Three Rivers Management Corp. The court defined inherent risks as those that are essential to the characteristic of skiing. Snowbird Ski Resort  The court says the statute only applies to inherent risks. aside from physical injury. Through duty or causation liability can be limited in this case. (b) People Express Airlines Inc. v. courts have usually rejected those claims. (2) Jones v. Courts says it will not recognize wrongful life claims. to particular P‟s or P‟s comprising an identifiable class w/ respect to whom D knows or has reason to know are likely to suffer such damages from its conduct iii) “Wrongful Pregnancy. c) Primary Assumption of Risk i) The primary assumption of risk doctrine protects D‟s from liability in some circumstances where risks either cannot be eliminated or would be too costly to eliminate and where those risks are typically obvious to the people who encounter them. but there are exceptions. medical professionals owe a duty of care to the developing fetus. (4) Wrongful birth and wrongful life claims seek to treat birth as a harm. v.  whether a P can recover for economic damages due to D‟s negligence when there is no personal injury or property harm? No. Finlandia Center Inc. even in a place of amusement (example a baseball stadium.” “Wrongful Birth.  The court found that. who is. One exception is if there is a special relationship. The judge is stopping liability using duty. medical malpractice resulting in miscarriage or stillbirth should be construed as a violation of a duty of care to the expectant mother. in treating a pregnancy. the patient. ii) Cases: (1) Clover v. (2) In actions called wrongful birth. after all. Gonzalez  The court holds that. (5) Cases: (a) Greco v. even in the absence of an independent injury. United States  The court determined that these complaints fell under medical malpractice and that the malpractice complainant had no cause of action for the wrongful life of the child. Where a P claims that D‟s negligent conduct has caused the P to suffer harms that are entirely economic and that have occurred in the absence of a physical connection between the D and the P. entitling her to damages for emotional distress. they surely owe a duty of reasonable care to the expectant mother. (2) Cases: (a) 532 Madison Avenue Gourmet Foods Inc. This court says there was such a relationship and D can be liable for economic damages. there was no special relationship between the parties in this case.  There is a general rule. not every risk was reasonably expected. the court says they will not force them into legalistic pigeonholes.” and “Wrongful Life” (1) Wrongful pregnancy cases are those in which a person was sterilized and then gets pregnant. (3) An action brought in these circumstances by the child who was born is called a wrongful life claim. amusement park. That for damages court would offset taking care of the deformed child with the normal expenses of taking care of a healthy child. (i) Exception: a D owes a duty of care to take reasonable measures to avoid the risk of causing economic damages. movie theater). Although. (b) Broadnax v. Because the health of the mother and fetus are linked. The application of the assumption of the risk defense was . (i) D also argues the offset rule. Court says based on Nevada‟s laws she will be able to recover expenses for care for him for the rest of his life.

ii) Cases: (1) Piner v. The P may collect only that amount from each D. b) Several liability is a system in which each D is assigned an individual obligation to the P. with related doctrines of contribution and indemnity. d) Several Liability i) In recent years. CSX‟s argument about joint and several liability was misleading to the trier of fact and the courts are not inclined to invite speculation on the part of the jury. (a) Certified question: Federal court is asking the state court of what is the rule of the state court. (2) Sitzes v. c) Joint and Several Liability i) Joint and several liability treat each D as responsible for the entire judgment awarded to the P. Several liability is often the general rule. APPORTIONMENT OF DAMAGES 1) If there are two or more D‟s. tort law must determine the share of the damages for which each D is liable. Under the common law doctrine of joint and several liability. Superior Ct. CSX. the burden of apportionment was on the . a P was entitled to enforce his or her entire judgment against each one of the D‟s. the injured man was struck in two separate incidents by the drivers on the same day. B/c joint and several liability can lead to a situation in which a single D has paid all or most of a judgment. Under joint and several liability if C paid out 100% he could only collect 1/3 from each party.  While driving. several liability. One D may sue a second D for contribution if the first D pays more than his or her proper share. The court held that the argument by defendant's counsel constituted reversible error and that it was inappropriate and an abuse of discretion for the judge to either instruct the jury or permit counsel to communicate to the jury about the post-judgment effect of joint and several liability.limited to those injuries incurred as a result of risks any spectator must and would have been held to anticipate. with joint and several liability retained as an exception for specifically identified types of cases. the common law developed procedures for redistributing that burden. Under the new rule C could collect 50% from A and 25% from B. Modern comparative fault systems sometimes apply joint and several liability and sometimes apply another doctrine. This meant that the P could collect the entire sum from one of them or could collect part from one and part from another. many state legislatures have eliminated or modified the joint and several liability doctrine.  The certified question of the court was whether the court recognized that primary fault or negligence should be apportioned among joint tortfeasors in accordance with their degrees of fault? The court concludes that between joint tortfeasors a right of comparative contribution exists inter se (among themselves) based upon on their relative degrees of primary fault or negligence.  P brought suit claiming that D. CSX Transportation Inc. 3 parties liable A=50% B=25% C=25%. IV. Anchor Motor Freight Inc. was negligent in allowing both slow and fast moving trains simultaneously on the main line tracks and that warning provided was neutralized of allowing both trains on the tracks at the same time. The court held that if P established that the conduct of the drivers contributed to his injures. 2) Apportioning Damages Among Liable Defendant’s a) Common law recognized a system known as joint and several liability. Sitzes substituted contribution based on degree of fault for contribution based on an equal division of liability. which would be up to the party‟s share of liability. ii) Cases: (1) Lacy v. The court also found that the "no-duty" rule was improperly applied and recovery is not foreclosed.

the case was one of indivisible injures. an actor is liable for someone else‟s tortious conduct. irrespective of whether the other tortfeasor accidentally or purposefully injured the victim. the wrongdoers should be left to work out between themselves any apportionment. 3) Vicarious Liability a) A special variety of joint liability is the doctrine known as vicarious liability. To hold otherwise would lead to the anomaly that a negligent tortfeasor would bear the full risk of the injury if the other tortfeasor purposefully injured the victim. Fault includes both intentional and negligence for public policy reasons. a P‟s harm is caused by one actor‟s negligence and another actor‟s intentional tort. however. Under this doctrine. and the jury would determine apportionment of fault and the judge would calculate the damages for which each driver was responsible. the P will be unable to collect that share. both horse owners would have been liable to the car driver for the full amount of damages. the P may collect his or her damages from any subset of the of the jointly and severally liable D‟s b/c each is liable for the entire amount. (a) Under joint and several liability. however. the innocent wronged party should not be deprived of redress. Lake  held that. Scoular Grain Company of Utah  Under the Utah Comparative Fault Act. but the matter of apportionment is incapable of proof. Farmers Insurance Exchange  May a jury apportion fault among tortfeasors who were merely negligent and others who intended to do wrong? Yes. however. The primary instance of vicarious liability is an employer‟s obligation to pay for an employee‟s tortious conduct. ii) Statutes in book deal with how jurisdictions address this issue. in this case a horse got lose and ran out in front of a car causes injuries. either b/c that actor‟s identity is unknown or b/c that actor is immune from liability. The case below considers these issues. This leads to the question of how to treat the missing actor‟s conduct in allocating responsibility for the P‟s injury. f) Intentional Conduct in a Comparative Setting i) In some cases.‟ ” g) Allocating the Risk of Insolvency i) Under joint and several liability. it is impossible to impose liability on an actor. but only his portion of the risk if the other actor were negligent. this means that a P will not be able to recover as much b/c then the pool of damages would be smaller. If the trial court concluded that there was no evidence supporting apportionment. (i) Dissent: „holding the tortfeasor liable for only his own percentage of fault is not abrogated by non apportionment when the nature of the tortfeasor's breach is that he created the risk of the second tortfeasor's [intentional] act. each D is only liable for a share of the damages. A New Mexico statute had. e) Allocating Responsibility to Absent or Immune Actors i) Sometimes. rather.drivers. Under several liability. if one D is insolvent. (1) Cases: (a) Slack v. ii) Cases: (1) Sullivan v. . Some courts refer to these uncollectible shares as orphan shares. can a jury apportion the fault of the P‟s employers that caused or contributed to the accident although said employers are immune from suit under the Act? Yes. replaced joint and several liability with several liability. where D‟s are independent but concurrent tortfeasors and thus each liable for the damage caused by him alone. Without some special rules relating to insolvent D‟s. (a) Apportioning Harm v. Apportioning Damages (2) Roderick v. a negligent actor is only responsible for his contribution to an injury. known as the doctrine of respondeat superior. Under the terms of the statute.

Phoenix Newspapers Inc. 8. Method of payment. the fact finder must evaluate a number of criteria. (i) Respondeat superior – an employer may be held vicariously responsible for the tortuous acts of an employee committed incidental to or during the scope of employment (ii) The employer‟s duty to exercise reasonable care to control its employee may extend to activities performed outside the scope of employment (b) O’Connor v. (1) Cases: (a) Trahan-Laroche v. c) Respondeat Superior i) Holding an employer responsible for an employee‟s torts raises the question of whether the negligent person was acting as an employee at the time of the tortious conduct. the amt of freedom allowed the employee in performing his duties.  This case introduces the basic elements of respondeat superior. They include: 1. Court goes through factors test to see if D was an employee or independent contractor to see if respondeat superior applies. (i) Factors test: 1. the work the employee was hired to do 4. and 6. 5. Materials and place of work. Relationship of work done to the regular business of the employer. One cause of action is based on vicarious liability for the employee‟s tortious act.b) An exception to the rule precluding vicarious liability for the acts of independent contractors applies to situations where an employer hires an independent contractor to perform an inherently dangerous task. Specialization or skilled occupation.  P delivered papers for D under a “delivery agent agreement” which stated that he was an “independent contractor”. the nature time and place of the employee‟s conduct. 2. There are disputed factual questions that preclude determination as a matter of law that Evans was not under a “special errand” of D. 7. The distinct nature of the worker's business. 3. (i) In determining whether an employer-employee relationship exists. d) Vicarious Liability for Vehicle Owners i) To increase the likelihood that people injured by the use and operation of automobiles will recover damages. Peluso  in order to impose vicarious liability under the VTL section 338. The other is based on a claim that the employer is responsible for some other negligent act. ii) Cases: (1) Levitt v. the incidental acts the employer should reasonably have expected the employee to do 5. the “operation and driving function of an automobile or the condition of the vehicle itself” . such as negligent supervision or negligent hiring. the intent of the employee. state statutes make vehicle owners vicariously liable for the tortious conduct of all users of their vehicles. Belief of the parties. 2. McDonald’s of California  the court goes over a factors test to see if respondeat superior applies. the amt of time consumed in the personal activity (c) Santiago v. Duration of employment. 6. 3. The extent of control exercised by the master over details of the work and the degree of supervision. It shows that a P injured by an employee may seek damages from the employer with two separate causes of action. 4. Lockheed Sanders Inc.

punitive. The court holds that consortium-type damages may be considered when calculating the pecuniary value (relating to money) of a deceased's life. Hodgman about the two prongs of evidence needed to support future pain and suffering jury charges. loading or unloading must not have terminated. whether minor or adult. b) General Damages i) General damages are non-economic damages and are not readily calculated. ii) Cases: (1) Rael v. They are recoverable if the D acted with bad motive. (a) General Rule: On appeal such awards will only be disturbed only when there has been a clear abuse of discretion and in this case the record must clearly show that the jury abused its discretion. Baptist Three Rivers Hospital  Are spousal and parental consortium losses permissible in wrongful death actions? Yes. In cases where a victim has dies. hedonic dmages (damages for loss of enjoyment of life‟s pleasures). Consortium losses are not limited to spousal claims but also necessarily encompass a child's loss. Robertson  Future Medical Expenses: P must show evidence for this at trial.  pain and suffering." Cause of action in this case by the person who dies survives. (a) test to determine “use and operation”: (i) the accident must have arisen out of the inherent nature of the automobile (ii) the accident must have arisen w/in the natural territorial limits of an automobile and the actual use. and nominal damages. Past and future lost wages: Both must be proven by the preponderance of the evidence. courts generally refer to three categories: compensatory. (b) The rule of adjustment: in which the award will be changed to the highest or lowest point which is reasonably within the discretion afforded to the trial court (2) Jordan v. Punitive damages serve to punish or provide extra deterrence to a D. The court cites Klein v. typically in intentional or recklessness cases. not the use or operation of the car. Their value varies according to the gravity of the D‟s conduct and the amount of money thought necessary to have the intended effect on the D. that the injured person must of necessity undergo pain and suffering in the future then most certainly the Plaintiff would not be required to prove a fact so . In this case the statute provides for both wrongful death and survival and that is what the court seems to do. This is a survival statute. such as ill will or a desire to harm. Imposing vicarious liability on a vehicle‟s owner requires more than the mere presence of an auto at the scene of an injury and more than the fact that the tortfeasor was in the auto. from the very nature of the injury.” They can be based on past or future harm. Nominal damages are token amounts signifying that the D committed an intentional tort. ii) Cases: (1) Gunn v. and (iii) the automobile must not have merely contributed to the cause and the condition but itself must produce or be a proximate cause of the injury V. and it is plainly apparent. They are available under all legal theories. the proximate cause was the act of throwing the egg. (a) Two Prongs: (i) If the injury is objective. 2) Compensatory Damages a) Introduction i) Compensatory damages can be either “general” or “special. Compensatory damages are meant to equal the value of actual harm caused by the D.must be the proximate cause of injury. Examples are damages for pain and suffering. DAMAGES 1) In analyzing monetary damages. This holding does not create a new cause of action but merely refines the term "pecuniary value. they can be “survival” or “wrongful death” damages. F & S Co.

by extrapolation. the value of the loss of enjoyment of life. learned in human anatomy. must be left to the sound discretion of the jury. therefore. The court cannot say that the jury was incorrect in arriving at this sum. but prohibits expert testimony on either of these issues. (ii) Where the injury is subjective. v. either from a personal examination or knowledge of the history of the case. upon request or when the trial judge deems it appropriate. Blanchard Place Apartments  Court says unless the jury award is manifestly unreasonable then they have to keep the jury award intact. or from a hypothetical question based on the facts. It is apparent that the middle-ground approach contributes little to the accuracy or predictability of lost future earnings. (2) Giant Food Inc. Examples are: medical expenses. loss of earnings. as a result of the injury proved. at present. the jury may infer pain and suffering in the future. the court says it is clear that per diem arguments are permissible in this State. Expert‟s testimony should have been excluded on that ground.  hedonic damages." This view was previously adhered to by this jurisdiction. but for reasons stated above. in order to warrant an instruction on that point. (b) Middle ground approach: it permits the fact finder to consider the effects of productivity and inflation on lost future earning capacity. and of such a nature that laymen cannot. that the plaintiff. with reasonable certainty know whether or not there will be future pain and suffering. (3) Loth v. there must be offered evidence by expert witnesses. and paradoxically allows a judge or jury to determine what an acknowledge expert cannot. Each economist presented plausible calculations. Truck-A-Way Corp. may be expected to experience future pain and suffering. cost of replacement or repair. we decline to adopt it. with reasonable certainty. loss of employment. then. the jury must be instructed that the per diem argument made by counsel is not evidence but is merely a method suggested by a party for the purposes of calculating damages. no expert may supply a formula for computing the value of life and. Separate instructions on pain and suffering and loss of enjoyment of life are prohibited because they could mislead a jury to award double damages for the same injury. who can testify. Just as no judge may give the jury a standard for determining pain and suffering damages. and upon making proof of such an objective injury. We. They must be supported by evidence. loss of use of property. will not disturb the jury's award of lost past wages.plainly evident. cost of obtaining substitute domestic services. c) Special Damages i) These are economic damages and are calculable. That calculation. it is hereby rejected. (a) In general courts are split to if they allow per diem arguments by a lawyer to the jury. Satterfield  pain and suffering. as a matter of law. . (2) Kaczkowski v. and to authorize the jury to return a verdict for future pain and suffering. burial costs. ii) Cases: (1) Moody v. The court concludes. neither of which can be said to be wrong. Bolubasz  Which of the three approaches considering the impact of future inflation and productivity lost on future earning capacity regarding a lump-sum damages payment should be used in this jurisdiction? The evidentiary approach  Variant 1 for productivity and Variant 2 in how to treat inflation (a) Traditional approach: ignores altogether the effects of future productivity and future inflation as being "too speculative. and loss of business or employment opportunities. The jury must further be instructed that an award for pain and suffering is to be based upon the jurors' independent judgment. It is also apparent that.

(ii) Variant 2: 1. P instigated and at the tail end of the fight D hit P in the nose breaking it and casing it to bleed profusely. punitive damages were recoverable only when the assault and battery was accompanied by an element of aggravation such as malice or the other aggravating circumstances. rudeness. Each year's earnings were then discounted to present value by this "real" discount rate. ii) Shugar v. 2. the court has stated: "Automatic step increases keyed to the length of service are by their very nature certain and predictable at the time of trial" and the court takes them into account when estimating the lost future earnings. The "real" discount rate employed by the court was 1. However. While telling the nurse to turn on the suction was arguably not an "insult" to the nurse. a court does not discount the award to its present value but assumes that the effect of the future inflation rate will completely offset the interest rate. the court reasoned that in cases involving assault and battery. the court excluded as speculative evidence the "non-scheduled salary increases and bonuses that are granted as one progresses in his chosen occupation in terms of skill. thereby eliminating any need to discount the award to its present value. There are two variants. The court applied these principles to the facts of the case and concluded the evidence presented was not sufficient to permit the jury reasonably to infer that defendant's actions were activated by personal ill will toward plaintiff or that his acts were aggravated by oppression. iii) State Farm Insurance v.(c) Evidentiary approach: allows the fact finder to consider productivity and inflation in awarding damages. The court says that this was for the jury to decide. To account for the inflationary component's impact on lost future earnings and the effect of future interest rates on lump-sum payment. the court developed a formula known as the "offset present value method" in which it subtracted the estimated inflation rate from the discount rate to calculate the inflation adjusted or "real" rate of interest. Particularized circumstances of aggravation or insult had to appear in cases of assault and battery if punitive damages were to be awarded where there was no injury. the court applied that "total offset method. However. or a wanton and reckless disregard of plaintiff's rights. the statement did present at least a scintilla of evidence that "aggravating circumstances" in the form of angry or intimidating behavior accompanied the assault and battery.5%. we conclude that the evidentiary concept is the most valid method to compute lost future earnings. . Feldman approach  The court predicts the incremental salary (productivity) increases of the descendent over her work-life expectancy by extrapolating the evolving pattern of her life." 2. insult. Blackwell  The court affirmed. experience and value to the employer. Campbell  Federal government is getting involved to see if State Farm‟s due process rights have been violated by the excessive punitive damages. 3) Punitive Damages a) Punitive damages are often called exemplary damages. Alaska court‟s approach  As to productivity. b) Cases: i) Peete v. For the inflation component. The court looks at three guideposts from the BMW case. (i) Variant 1: 1. Gull  P got into a fist fight with D." Under the total offset method. Since we believe that there is a reasonable basis in fact to consider the impact of inflation and productivity on lost future earnings. and since they already decided this the jury award should stand.

benefits paid by health insurers. (1) There is a difference to how this state‟s constitution phrases the right to a jury trial. Medical Center Hospitals  The court affirmed the judgment that reduced. and (c) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases. A number of states have modified a doctrine known as the collateral source rule. 6 guarantee of the right to a trial by jury because the amount of damages was a factual issue to be determined by the trier of fact. The jury becomes an advisory board instead and limiting the jury verdict takes away the right of trial by jury. iii) Knowles v. art. Const. The court found that 21-3-11 violated the S. The court applies the rational basis test. Health insurers cannot invoke either the common law or a contractual right of subrogation in order to seek reimbursement for their expenses. United States  The court framed one issue as whether the damage limitation under 21-3-11 was unconstitutional. Ford  Ford is claiming that the 125 million in punitive damages was invalid under the constitution. This case is using the real and substantial relationship test for the legislation and curbing of medical malpractice. The court held that the Virginia statute limiting the award did not violate the Virginia and United States Constitutions.D. In addition the medical persons who are most negligent are benefiting the most b/c of the cap. are to be deducted from a tortfeasor‟s liability to a P. Const. Under the NJ collateral source statute. Rediger  Can health insurers can sue for payments made on claims? Collateral source rule: protects from tortfeasor benefiting from the injured having insurance. Many states have adopted statutes that impose ceilings on the amounts of damages that may be awarded either in any tort action or in particular types of tort actions such as medical malpractice cases. 20. less associated premiums. Due process was also violated by the arbitrary classification of malpractice claimants based on the amount of damages. VI. . The test in this case is more stringent and in the other is more flexible.D. The statute also violated S. It doesn‟t matter that it was grossly disproportionate. b) Cases: i) Perreira v. a jury award for the co-committees of an estate of an injured patient in a medical malpractice action against a hospital and the estate of a physician. The court applies: Not stated explicitly  the court uses the cost benefit analysis (Learned Hand). VI. The court uses reasonable relationship to a proper purpose. The subrogation right prior to the statute is still viable (?) ii) Etheridge v. A chooses that the punitive damages were proper.(1) Three Guideposts: (a) the degree of reprehensibility of the D‟s misconduct. art. Now health insurance companies are saying that P cannot be doubly paid and they should get the money that they paid out. The court says when they look at all of the figures. pursuant Virginia statute. Why does this case and the Virginia cases come out differently? The courts apply different tests. (b) the disparity between the actual or potential harm suffered by the P and the punitive damages award. the caps are not saving money for doctors insurance and that it didn‟t really help and that they should rule the caps unconstitutional. iv) Grimshaw v. 4) Adjustments to Damages: Collateral Sources and Statutory Ceilings a) Limiting the amount of damages owed by a D found to have committed a tortious act has been a dominant goal in the tort reform movement. the open courts and remedy-for-injury provision by making doctors liable for only a portion of their negligence.

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