Torts, Fall 2003, Goldberg Intentional Torts

A. Intent. 1. Elements of Intent a. Purpose; or b. Substantial certainty of consequence (consequence depends on cause of action). 2. Can be transferred to any of the 5 original tortstrespass to land, trespass to chattel, assault, batter, & false imprisonment- Talmage v Smith. 3. Intent Motive. B. Battery 1. Elements of Battery a. Intent to cause harmful or offensive touching b. Harmful contact resulting directly or indirectly. 2. Includes anything intimately connected with the body-Fisher v. Carrousel Hotel C. Assault 1. Definition of Assault-Intent to cause apprehension of imminent contact a. Apprehension must be reasonable a. There must be present ability to accomplish the contact-Western Union Telegraph Co. v. Hill 2. Cannot be conditional unless condition is illegal-give me your purse, or Ill hurt you is assault. Im going to kill you next week is not assault. D. False Imprisonment 1. Elements of False Imprisonment

a. Intent to restrain without justification b. Restraint must be physical/physical barrier-Whittaker v. Sanford. 2. Apparent authority can take the place of a physical restraint-Enright v. Groves 3. Person imprisoned must know of their imprisonment, or must be injured during the course of imprisonment-Parvi v. City of Kingston 4. will not be liable for injuries sustained in an escape attempt if could have remained imprisoned without harm. will still be liable for damages arising from the false imprisonment E. Trespass 1. One is liable for any intentional, unauthorized trespass. 2. Strict liability tort. F. Intentional Infliction of Emotional Distress 1. Elements of Intentional Infliction of Emotional Distress a. Intentional b. Extreme, outrageous conduct c. Causal connection between conduct and distress d. Severe emotional distress-Harris v. Jones. 2. Words alone will not do 3. Aggravating factors make it a jury question-racial epithet + firing 4. If someone is particularly sensitive-racial group/minority must be substantially certain that severe emotional distress will result-Taylor v. Vellelunga. G. Defenses-Privileges 1. Consent a. Conduct can indicate consent-OBrien v. Cunard S.S. Co. b. Consent obtained under false pretenses is void- De May v. Roberts

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c. Doctors must obtain express consent for a medical procedure, unless the patient is unconscious and there is danger to life or limb-Mohr v. Williams d. Consent to a violent game does not give consent to a battery outside of the rules of the game-Hackbart v. Cincinnati Bengals.. In Defense of Property a. There is no privilege to protect unoccupied houses with mechanical devices capable of inflicting life-threatening injuries-Katko v. Briney. b. Must use reasonable force in protecting property. Merchants Privilege a. A merchant has the privilege to detain a person if there is a reasonable suspicion and the detention is reasonable. b. Merchants privilege of detention extends to the immediate vicinityBonkowski v. Arlans Department Store. Necessity a. There is a privilege of necessity-Ploof v. Putnam b. One may have to pay for the privilege of necessity if in availing himself of the privilege damage or injury is caused-Vincent v. Lake Erie Transportation Co... Privileges-Discipline: Privilege passes from parents to teachers and in some cases bus drivers-There is justification for false imprisonmentprotection of property-Sindle v. N.Y.C. Transit Authority.

Negligence
A. Almost always a factual questions for the jury. (Was there a duty and if there was, was the duty Elements necessary to the cause of action: 1. A duty to use reasonable carerequires actor to conform to a certain standard of conduct for the protection of others against unreasonable risks. 2. A breach of dutyfailure to conform to the required standard. 3. Causationreasonably close causal connection between the conduct and the resulting injury. 4. Actual loss or damage resulting to the interests of another. B. Policy for Negligence in Torts 1. Helps establish societal norms 2. Recompense (Case of the Thorns-If a man be injured through no fault of his own he should be compensated) C. Another commonly used rubric for negligence is conduct that falls below the standard of care established by law for the protection of others against the unreasonable risk of harm. D. An Introduction to Negligence 1. Chicago, B. & Q.R. Co. v. Krayenbuhl- RR had a turntable unlocked and unguarded and while playing with friends upon turntable his foot was severed. a. A person is negligent if under all circumstances, the owner of the property omits such precautions as a man of ordinary care and prudence, under like circumstances, would not omit. 2. Davison v. Snohomish County-(1928) s were injured when their car crashed through wooden guardrails and fell off bridge. a. Person is not liable for negligence if he takes reasonable precaution (matter of law)

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b. Bartlett v. Northern Pacific R. Co.- stating that the ideas of the court 40 years ago are not authoritative on the engineering and financial phases of the same problem today. It a for the jury to decide whether it is negligent to have a bridge w/out guardrails. United States v. Carroll Towing Co.-s servants negligently shifted the barges mooring lines, barge drifted against a tanker, whose propeller broke a hole in the barge. Barge dumped her cargo, and sank. The bargeman had not been aboard at the time. a. Court held that the failure to have bargee on board during working hours was unreasonable. b. PL>B (Probability x Injury>Burden of Precaution determines liability) Lubitz v. Wells-Father left golf club in back yard. Son swung it and struck a playmate. a. A parent is not liable for their childs negligent actions b. An object must be deemed obviously and intrinsically dangerous in order to hold someone liable for negligence in leaving it easily accessible.

Duty
B. Duty & Foreseeability 1. There is no duty to prevent something that could not be reasonably foreseen a. Blyth v. Birmingham Waterworks Co.- installed water mains in the street, with fire plugs at various points 25 years ago. Plug opposite s house sprung a leak during a severe frost, which seeped into the s house causing damage. i. Court held that had provided against such frosts as experience would have led men, acting prudently, to provide against; and they are not guilty of negligence. ii. As a matter of law as one cannot be held negligent for something one could not reasonably foresee. b. Gulf Refining Co. v. Williams- was injured when a gasoline drum exploded when he removed cap from the drum. Fire was caused by a spark produced by the condition of disrepair in the cap. i. If sufficient proof exists that shows a person of ordinary prudence, using cautious care, should be able to reasonably foresee a certain occurrence, and they do nothing to prevent it from happening, they are liable for negligence c. Foreseeability is almost always a jury question 2. There is no duty owed to unforeseeable s a. Palsgraf v. Long Island R.R. Co.- was standing on a platform. A man running to catch a train dropped a package of fireworks onto the track. The fireworks exploded and the shock of the explosion threw down some scales at the other end of the platform many feet away, striking and injuring her. i. Cardozo ruling-if is not within the foreseeable zone of injury there is not duty and thus no negligence C. Objective Standard of Care 1. The care a person of ordinary prudence would exercise under the circumstance

Delair v. McAdoo- was driving w/bald tires and as he was passing , his left rear tire blew out, causing it to swerve and come in contact with the s car. a. The law assumes certain knowledge. b. If you claim ignorance of something the law assumes knowledge of, you will be held liable. c. Note: Restatement holds that if a person has superior knowledge in an area such knowledge increases the burden of knowledge, however, no court recognizes this principle. 3. Emergency Doctrine-Conduct that otherwise would be deemed negligent is excused due to emergency circumstance a. Cordas v. Peerless Transportation Co.-Cab driver abandoned his vehicle while it was in motion when passenger with pistol threatened him. Unattended cab injured s, a mother and her two children. i. An emergency is a circumstance that makes negligent behavior not negligent. ii. Emergency is a circumstance that a jury or judge may consider in rendering a decision about the reasonableness of an action. 4. Customs Effect on the Standard of Care a. Custom does not set the standard, but is a persuasive element for the jury to consider in its determination of what is reasonable b. Trimarco v. Klein-s glass bathtub enclosure shattered, injuring him severely. presented as evidence the custom of using tempered glass for bathtub enclosures. i. Custom is sufficient to raise a jury question as to what a reasonable person would do. ii. Customary practices can be persuasive authority in determining liability for negligence. Custom is not a matter of law. Custom does not set standard, still need jury to decide whether the action was reasonable in light of custom c. A standard is just a custom that has been validated, is no more legally binding than custom D. Modification of the Standard of Care 1. Physical Disability a. Different standard for persons with a physical disabilitymust act as a reasonable person with that disability would/should act b. Roberts v. State of Louisiana-blind man bumped into and sustained injuries. i. Conduct of a handicapped individual must be reasonable in the light of his knowledge of his infirmity, which is treated merely as one of the circumstances under which he acts. ii. Must behave as a reasonably prudent blind person under the circumstances 2. Children Participating in Age Appropriate Activities a. Robinson v. Lindsay- s thumb was severed in a snowmobile accident. Snowmobile driven by 13 year old i. A child is held to the exercise of such degree of care and discretion as is reasonably to be expected of children of his age, intelligence, and experience

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Exception-when a child is participating in adult activities or activities which are inherently dangerous, he is held to an objective adult standard of care. E. NO Modification of the Standard of Care 1. Intelligence a. Vaughn v. Menlove-, who was not of the highest intelligence, built a hay rick near s cottage. was repeatedly warned of the peril of possible fire. The rick burst into flames and durned s cottage, which was entirely destroyed. i. Reasonable person standard is an objective test and always applies regardless of if has superior or inferior intelligence. ii. Level of intelligence does not affect reasonable person standard 2. Lack of Knowledge a. Delair v. McAdoo- was driving w/bald tires and as he was passing , his left rear tire blew out, causing it to swerve and come in contact with the s car. claimed he didnt know. i. The law assumes certain knowledge. ii. If you claim ignorance of something the law assumes knowledge of, you will be held liable. iii. Note: Restatement holds that if a person has superior knowledge in an area such knowledge increases the burden of knowledge, however, no court recognizes this principle 3. Children participating in adult activities a. Robinson v. Lindsay- s thumb was severed in a snowmobile accident. Snowmobile driven by 13 year old i. when a child is participating in adult activities or activities which are inherently dangerous, he is held to an objective adult standard of care 4. Mental Illness a. Breunig v. American Family Ins. Co.-Insured thought G_d was controlling her car and that she would fly over s truck, there was a crash. i. Insanity is not a defense to negligence in most jurisdictions. F. Reasonable Professional Standard 1. For professionals, the standard of care is modified to take on the actors profession (the reasonable prudent doctor, lawyer, etc) Still an objective standard 2. Knowledge, training, and skill of an ordinary member of that profession under the circumstances 3. For professionals, custom defines the standard of care and there must be an expert to testify to as to this custom, unless it is something that the common person would know. a. Heath v. Swift Wings, Inc.- s airplane crashed immediately after takeoff. All on board were killed. i. When dealing with persons rendering service the reasonable person standard still applies, but the reasonable prudent person takes on the profession of the actor and an objective standard is applied.

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Specialist-reasonably prudent specialist; pilot-reasonably prudent pilot, etc Malpractice-action based on negligence of a professional. a. Boyce v. Brown- surgically repaired s ankle w/screw, complained to that it still hurt. went doctor, who upon X-raying the ankle discovered that the screw needed to be removed, after which the ankle healed normally. i. In order to hold that a professional violated the standard of care there must be evidence, such as expert testimony, that the practice was not recognized as valid or that the professional deviated from the standard of care, unless it is something so obvious that the layman would know. ii. For professionals, custom defines the standard of care and there must be an expert to testify to as to this custom, unless it is something that the common person would know. Locality Rule a. Morrison v. MacNamara- was injured after he fell during the administration of a urethral smear test while in a standing position at a nationally certified medical laboratory. i. In medical malpractice cases most jurisdictions apply similar community under similar circumstances test to ascertain the standard of care. ii. Nationally board certified laboratories, and nationally board certified specialist (like plastic surgeons) are held to a national standard. Informed Consent a. Scott v. Bradford- performed hysterectomy on , after which she developed an incontinence problem requiring 3 further surgeries. s brought a medical malpractice action based on lack of informed consent against . b. The informed consent doctrine holds that a doctor must disclose what a reasonable patient would want to know before deciding on a course of treatment. c. The reasonable patient is an objective standard. d. Elements of Informed Consent i. Physician failed to fully disclose material risks before obtaining consent to the purposed treatment. ii. Had the patient been informed of all the risks he would not have consented to the treatment. iii. The adverse consequences that were not made known did in fact occur. iv. Patient was injured as a result. Defense to Malpractice a. Hodges v. Carter- lost suit against insurance companies b/c s failed to properly and validly serve the insurance companies. brought suit for malpractice against s. i. A defense to malpractice is the exercise of best judgment in good faith.

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To demonstrate malpractice must prove a causal relationship between professional negligence and injury. a. The but for testbut for the lawyers negligent action I would have won the lawsuit. But for the doctors error she would have been able to walk again G. Duties Arising from Statute 1. Negligence Per Se-A violation of a statute can establish a civil standard of care a. Osborne v. McMasters- drug store, in the course of employment, sold to s intestate a deadly poison without labeling it poison, as required by statute. Intestate ingested the poison and died. 2. Violation of statute or regulation constitutes negligence as a matter of law (negligence per se) when a. The violation results in injury to a member of the class of persons intended to be protected by the legislation; and b. When the harm is of the kind which the statute or regulation was enacted to prevent i. Perry v. S.N. & S.N.- day care center operators witnessed abuse of the children at a day care center and failed to report it to the police or child welfare officials in violation of the Family Code of Texas. a. If a statute does not set the standard of care (is not negligence per se), the s case defaults to common law standard of care (common law negligence) ii. Stachniewicz v. Mar-Cam Corp.- , a patron of drinking establishment was injured in a barroom brawl with inebriated patrons of drinking establishment. 3. In determining whether a statute sets a civil standard, the courts have broad discretionjudges decided as a matter of law by divining legislative intent. a. Ney v. Yellow Cab Co.-One of the companys cabbies left his vehicle without first securing it, violating Uniform Traffic Act XIV 92. A thief absconded with the cab and collided with the motorists vehicle and damaged it. i. Negligence is actionable if a cause-effect relationship is established. 4. When a statute applies to the facts, an unexcused violation is negligence per se/negligence as a matter of law, which must be declared by the court and not left to the jury. a. Martin v. Herzog- and her husband were traveling by buggy at night, without lights, in violation of a statute. was driving a car, rounded a curve, and approached the buggy from the opposite direction. s car hit s buggy, and her husband were thrown to the ground. s husband was killed 5. When a statute applies to the facts, violation of the statute sets the standard of care and a presumption of negligence which may be rebutted. a. Zeni v. Anderson- was walking in street with her back to traffic, in violation of a statute, when she was struck and injured severely by s car. The sidewalk was snow covered and dangerous to walk on. 6. Effect of Negligence Per Se

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a. In a jurisdiction that considers a violation of a statute a breach of a duty and thus negligence per se-Judge will exclude s evidence of excuse and wins as a matter of law. Strict liability. b. In a jurisdiction that considers violation of a statute negligence per se, but recognizes excuse as a defense to the negligence claim-Judge will allow s evidence of excuse. s excuse shifts burden of production and persuasion to . It is a question for the jury. If jury is undecided on the excuse, wins b/c it was s burden to prove that the excuse was persuasive enough to excuse the violation of the statute. c. In a jurisdiction that considers violation of a statute to be negligence per se sufficient to establish plaintiffs burden of production (prima facie case) on the issue of negligence (duty + breach)-Jury gets the case. has burden of production, has burden of persuasion. If jury is in equipoise wins b/c the burden of persuasion has not shifted and is still on the . As a matter of law presents at least a jury question. d. A jurisdiction which considers breach of statutory duty to be evidence of negligence- has satisfied burden of production, might be a jury question. H. Expanding Tort Liability 1. In deciding whether to expand tort liability, courts will take into account policy issues and attempt to balance competing interests. 2. Kelly v. Gwinnell- , after having driven co- Zak home, spent an hour or two at co-s home where he consumed 2 or 3 drinks of scotch. Later, co- Zak accompanied outside to his car and watched as drove off. On the way home was involved in a head-on collision with an automobile driven by , who was seriously injured. Court decided to expand tort liability, holding that social hosts have a duty to ensure that their guests do not drive drunk. 3. Enright v. Eli Lilly & Co.- Karen Enrights grandmother ingested (DES) as a miscarriage preventative during a pregnancy that resulted in the birth of Patricia Enright. Patricias reproductive system was adversely affected through in utero exposure to DES. As an adult, Patricia had troubled pregnancies before giving birth to Karen prematurely, causing Karens numerous health problems including cerebral palsy. In a pure policy decision, court refused to recognize multigenerational claims against DES manufactures. I. Affirmative Duty to Act 1. There is generally no affirmative duty to act a. Hegel v. Langsam-s daughter, enrolled at the University and became associated with criminals, became a drug user, and was absent from her dormitory and failed to return to her parents on demand. The court held that the university had no duty to regulate the private lives of its students. 2. Exceptions-Special Relationships a. There is a duty to control third persons when because of a special relationship: i. One has right and ability to control the third person; and ii. Knows or should know of facts that would get the person to act b. Landlord-Tenant

Duarte v. State of California-s daughter was raped and killed in the student residence hall owned and operated by the California State University at San Diego. University failed to take responsible precautions to reduce the hazard and to protect the residents in the university dormitories or to warn the students or to train the students to protect themselves. a. Court found that the university had a duty to protect s daughter, based on the landlord-tenant relationship c. Doctor-Patient i. Tarasoff v. Regents of University of California-Therapists failed to confine a patient who expressed intentions to kill a woman, nor warn victim of patients intentions. Patient killed victim. a. Therapists special relationship to patient was extended to victim, and a duty existed to use reasonable care where they had knowledge that patient was going to harm victim. b. Duty to report limited to identifiable victim d. Husband-Wife i. J.S. v. R.T.H.-2 young girls were molested by their neighbor. s sued neighbors wife for her failure to warn ii. Duty to control third persons (1) Right and ability to control the third person, (2) stands in a special relation to the third person, that gives him a power of control over that persons action. J. Duty & Privity of Contract 1. Contract between A and B that affects C, can C sue A? 2. There is no duty to unforeseeable 3. A person who has entered into a contract has no duty to anyone other than those a party to the contract. a. Winterbottom v. Wright- contracted with the Postmaster General to keep the coaches in a safe and secure condition. failed to comply with his promise and , a mail coach driver, was seriously injured when a vehicle broke down due to lack of repair. 4. Duty does not depend on privity; duty found in foreseeability; foreseeable plaintiffs a. MacPherson v. Buick Motor Co.-, car manufacturer, sold its cars to retailers without inspecting final product. purchased one of s cars from a dealer and was injured when car collapsed due to defective wood in the wheels. b. If is in a class that the seller expects to reach, privity is not needed 5. H.R. Moch Co. v. Rensselaer Water Co.- , a waterworks co., contracted with the city of Rensselaer for the supply of water during a term of years, including service at fire hydrants. Fire burned s warehouse. neglected to furnish enough water to save s warehouse. a. Citing Winterbottom v. Wright-Contract with city and city resells to public, public has no cause of action against utility. b. Court trying to find policy-based line beyond which liability will not extend. 6. Pure Economic Loss

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a. In most cases the fact that A was in a contractual relationship with B alone cannot defeat a claim that a duty was owed by A to C to prevent causing C foreseeable physical injury. b. A last bastion survivesIf harm is pure economic loss the courts take more seriously the claim that liability should be restricted. c. Pure economic loss arises when a person suffers pecuniary loss not consequent upon injury to his person or property. i. Robins Dry Dock & Repair Co. () v. Flint ()- damaged a boat chartered by . The boat had to remain in dry dock and as a result lost use of boat and opportunity to make money. a. neither foreseeable, nor was damage proximately caused. b. Robins Rule prevented s who were neither proximately nor foreseeably injured by a tortuous act or product from recovering solely by claiming a contract with the injured party. (Cited in Moch and in Testbank). ii. State of Louisiana Ex Rel. Guste v. M/V Testbank- 2 ships collided and 1 spilled PCP spilled into the Mississippi River Gulf outlet. The outlet was closed temporarily to all navigation and to fishing, shrimping, and related activities. a. Fishermen, shrimpers, crabbers, and oyster fisherman recovered damages b. Shippers not allowed to recover based on the pure economic loss theory, the shippers suffered a purely economic loss and were thus barred from recovery. c. Policy concern-liability insurance more costly, than loss insurance.

Breach-Proving Negligence without Direct Evidence

A. Circumstantial Evidence 1. Evidence which requires an inference in order to be equal to the proposition that you are trying to prove 2. Notice goes to the determination of whether there was a breach 3. How much evidence is sufficient to warrant an inference of breach and thereby negligence?-Depends on the amount of evidence a. Goddard v. Boston & Maine R.R. Co.- slipped on banana i. Judgment for def as matter of law; not enough evidence b. Anjou v. Boston Elevated Railway Co.- slipped on dirty, dry, gritty, black, flattened banana. i. Sufficient evidence for reasonable jury to be able to find negligence b/c banana there for a long time c. Joye v. Great Atlantic and Pacific Tea Co.- slipped on dark brown, some dirt and sand, sticky banana; floor swept 35 minutes prior. i. Not sufficient evidence, as matter of law, as to how long banana had been there d. Jasko v. F.W. Woolworth Co.- slipped on piece of pizza on floor i. B/c of s method of operation didnt need to show notice ii. It was foreseeable that someone would drop their pizza and someone else would fall on it

B. Res Ipsa Loquitur 1. Means the thing speaks for itself 2. may use Res Ipsa Loquitur when, on the facts, it is clear that would not be able to establish negligent conduct on the part of without solid, hard, direct evidence 3. 3 part test for establishing Res Ipsa Loquitur a. The accident is such as the ordinary course of things does not happen if those who have control use proper care i. Bryne v. Boadle-Barrel of flour fell out of window of s shop and unto , injuring him. Mere presence of injury is prima facie evidence of negligence. b. On the facts, was probably negligent, as he had exclusive control over the instrumentality i. McDougald v. Perry-spare tire dislodged from s tractor trailer and hit s windshield, causing personal injury. a. All that is required is evidence from which a reasonable person can say that on the whole it is more likely than not that the injury occurred because of s negligence c. Other possible causes, including contributory negligence of the and third persons must be sufficiently eliminated by the evidence in order for to succeed. i. Larson v. St. Francis Hotel-a chair fell unto from hotels window. a. was not allowed to recover b/c did not eliminate other possible causes b. Hotel not necessarily responsible, could have been hotel guests and hotels are not responsible for the actions of their guests. 4. Effect of Res Ipsa Loquitur a. It is up to the judge whether res ipsa loquitur will apply in any given case b. Most jurisdictions hold the res ipsa loquitur fulfills the s burden of production. (provides sufficient evidence to set out a prima facie case against ; provides sufficient evidence to withstand a motion to dismiss) c. does not win as a matter of law, as must still carry the burden of persuasion. Res ipsa loquitur poses a question for the jury i. Sullivan v. Crabtree-s son was guest in s tractor-trailor and was killed when the tractor-trialor ran off the road. a. res ipsa loquitur provides sufficient evidence to present a matter for jury to decide. 5. Unconscious at Hospital Exception a. Ybarra v. Spangard- underwent an appendectomy. After the surgery, s arm became paralyzed. i. in situations where is anesthetized in a hospital and is injured res ipsa loquitur will apply. ii. The burden of initial explanation falls on s as was rendered unconscious and it is manifestly unreasonable for s to insist

that he identify any one of them as the person who did the alleged negligent act.

Causation
A. Proximate Cause contains within it 2 ideas 1. Cause-in-fact 2. Limitation of liability, even if a reasonable jury could find that negligence was the cause-in-fact of the injury. B. Cause-In-Fact 1. Did the s negligent conduct cause the injury? a. Yes-go on to proximate cause b. No-no causation, no negligence. 2. But for test-but for s negligent action s injury would not have occurred.

a. Gentry v. Douglas Hereford Ranch, Inc.- tripped on ranch steps and accidentally shot and killed s wife. i. Sufficiency of evidence case-there was not sufficient evidence to rule that but for the condition of the steps (caused by s negligence) s wife would not have been shot. 3. Substantial factor test- When 2 or more actively operating forces, acting independently and not in concert with one another, combine to bring about the harm. a. Hill v. Edmonds- left tractor trailer in the middle of the road with no lights on a stormy night where car in which was a passenger collided with it. Driver of car testified that she saw the truck in enough time to turn. i. Neither cause was a but for cause. ii. When 2 negligent acts, neither of which would be a but for cause, combine and together and cause an injury, each is a cause-in-fact based on substantial factor test b. Anderson v. Minneapolis, St. P. & S. St. M. R.R. Co.- A forest fire, caused by s negligence, merged with another fire of independent and uncertain origin, and the combined fires burned over s property. i. s conduct was a substantial factor in bringing about the harm. ii. has burden of persuasion. c. Perkins v. Texas and New Orleans Ry. Co.-s train was speeding, s husband was passenger in car that didnt obey RR crossing sign. i. The accident would have happened irrespective of s speed. ii. The speed of the train was not a substaintial factor in bringing about the death of decedent, thus no causation. 4. Possibility vs. Probability a. Party with burden of persuasion must prove probability. b. Possibilities are not enough to break causal connections. i. Reynolds v. Texas & Pac. Ry. Co.- made a misstep while hastening down unlighted steps of s train and fell and injured herself. a. But for lack of lights and handrail she would not have fallen. argued that it was possible she would have fallen regardless. b. Where there is a causal connection between negligence and injury, the mere possibility that the injury might have occurred without the negligence does not suffice to break the connection. c. Possibilities will not sustain verdicts, probabilities are necessary i. Kramer Service, Inc. v. Wilkins- opened the door his hotel room, and glass from a broken transom fell onto his head, causing a wound on s temple. The wound never healed and a cancer developed. a. s evidence was that s negligence was possible cause of his cancer (1% possibility).

b. Post hoc ergo propter hoc cannot be used to establish liability for negligence. c. Causal connection must be direct. Possibilities will not sustain a verdict on the issue of causation. Need probabilities. d. A totality of possibilities may be sufficient to rebut probable cause i. Wilder v. Eberhart- performed stomach-stapling surgery on . Following surgery suffered complication arising from tears in her esophagus. a. was not allowed to provide evidence of other possible causes-on appeal court said should have been allowed to present this evidence. b. Several possibilities may be admissible as evidence rebutting s claim of the probable cause. 5. Loss of Chance a. Herskovits v. Group Health Cooperative of Puget Sound-Decedent was negligently diagnosed and as a result his chance of survival was reduced from 39% to 25%. i. Recovery is allowed in medical malpractice where the negligent action decreased patients chance of survival but patient would have died anyway. ii. The injury is not death, but the loss of chance. iii. But for the misdiagnosis, decedent would not have had loss of chance; must consider what might have happened in addition to what did (Hamil). 6. Joint & Several Liability a. Where a group of persons are engaged in an activity, and two of them are negligent in the activity and a third person is injured thereby, both of those so acting are liable for the injury suffered by the third person, although the negligence of only one of them could have caused the injury i. Summer v. Tice- and 2 s were hunting party, both s negligently fired, at the same time, at a quail and in the s direction. was struck in the eye by a shot from one gun. a. Policy-if there are 3 parties, 2 of whom are negligent and 1 of whom is completely innocent, and the innocent party is injured by the negligence of one of the 2 negligent parties but cannot identify which one caused the injury, the burden of persuasion shifts to the 2 negligent partiesYbarra v. Spangard b. Shifts both burden of production and persuasion to s, holding that s are in a better position offer evidence to absolve themselves. ii. Sindell v. Abbott Laboratories- developed cancer, due to her mothers ingestion DES, but couldnt identify specific manufacturer. s constituted 90% of DES market.
After this, therefore because of this; Of or relating to the fallacy of assuming causality from temporal sequence; confusing sequence with consequence

a. Court held s liable on a theory of market share liability, liability reflects s percentage of the DES market. b. Policy decision based on risk spreading-s better equipped to bear the burden of the liability than b/c s can pass on costs to its customers, while must bear the costs alone. C. Proximate Cause 1. Limiting liability through proximate cause a. Proximate cause cuts off liability, even if there is direct causation (cause-in-fact).-Atlantic Coast Line R. Co. v. Daniels. b. Policy considerations-insurance and risk spreading underlie proximate cause. c. Fact intensive inquiry as to what is fair d. Proximate cause is usually a jury question. 2. Immediate vs. Remote a. Atlantic Coast Line R. Co. v. Daniels-Wrongful act must be close (immediate) to injury that it would be rational to assume that if act had not happened, injury would not have happened. b. Ryan v. New York Central R.R. Co.- railroad negligently caused a fire that destroyed its woodshed. The fire spread and destroyed s building. i. Court held that the injury was too remote, the immediate result was the destruction of the s own wood and sheds. ii. NY-1st person injured is the only one to recover, iii. Policy consideration-court drew line b/c otherwise there would be no end to liability. 3. Direct v. Indirect a. In Re Polemis- chartered their vessel to s, to carry cargo. While discharging at port, a heavy plank fell into the hold, causing a spark which ignited the petrol vapor in the hold, causing an explosion and destroying the vessel. i. Fire directly caused by the falling of the plank, effectuated by negligence of s servants. ii. Type and extent of damages doesnt have to be foreseeable, it must only be foreseeable that some damage would occur. iii. Damage doesnt have to be foreseeable as long as cause is direct 4. Foreseeable v. Unforeseeable a. Bartolone v. Jeckovich- was involved in car crash for which s were found liable. sustained minor injuries, but subsequently suffered an acute psychotic breakdown, due to pre-existing mental condition. i. Liable parties are obligated to take the injured party as they found him and are thus liable for damages when unforeseeable consequences follow from a physical injury to the injured party ii. Eggshell Skull doctrine for negligence, applies to mental as well as physical injury. iii. If an injury/risk of injury is foreseeable, then is liable for the extent b. Wagon Mound Cases-freighter discharged oil into harbor, oil ignited on water; wharf and 2 ships burned

Wagon Mound No. 1 a. Foreseeability is considered for purpose of limiting liability foreseeability will be considered. b. The area within which liability is imposed is that which is within the circle of reasonable foreseeability. c. The way in which the event occurs need not be foreseeable, so long as the event itself is to be anticipated. ii. Wagon Mound No. 2 a. had a duty to foresee the risk. b. Used professional standard. c. Palsgraf v. Long Island R.R. Co.- was standing on a platform. A man running to catch a train dropped a package of fireworks onto the track. The fireworks exploded and the shock of the explosion threw down some scales at the other end of the platform many feet away, striking and injuring her. i. Cardozo-duty a. was outside zone of foreseeable risk, thus no duty owed to her. ii. Andrews-causation (Dissent) a. Question of causation and whether should be held liable was a question for jury. b. The Andrews approach has been the one which has been followed. D. Intervening & Superceding Causes 1. Break causal connections 2. Operates upon but does not flow from original negligence. 3. Yun v. Ford Motor Co.-Decedent was killed when he was struck by a vehicle as he crossed highway at night to retrieve spare tire that fell from damaged brackets of van he was riding in. a. Decedents extraordinary actions broke causal chain b. There was no proximate cause between the defective product and the injury. c. Whether superseding causes cuts off liability is a jury question. 4. Dependent Intervening Cause vs. Independent Intervening (Superceding) Cause

i.

a. Derdiarian v. Felix Contracting Corp.-Driver suffering an epileptic seizure crashed into unsecured worksite and hit , work site sued. i. Intervening cause does not cut off liability if the risk of the intervening act occurring is the very same risk which renders negligent (Dependent Intervening Cause). ii. held liable. 5. Negligent (foreseeable) vs. Intentional (unforeseeable) a. In some jurisdictions, intentional acts are said to be unforeseeable and thus break the causal connection between negligence and injury. b. Intentional acts are more likely to break the causal connection then negligent acts. c. Watson v. Kentucky & Indiana Bridge & R.R. Co.- railroad negligently poured into street. was injured when a match was thrown into the gasoline. It was disputed whether the match was thrown purposefully or accidentally. i. Intentional criminal acts are more likely to be superseding and cut off liability. ii. It is for the jury to decide whether an act is a superseding cause and whether the superseding cause cuts off liability. iii. Courts have backed off these notions, a negligent act is not always foreseeable and an intentional act is not always unforeseeable 6. McCoy v. American Suzuki Motor Corp.- stopped to help to a car that had swerved off road and was hit by a car after rendering aid. a. Under Rescuer Doctrine must carry burden of persuasion in regards to proximate cause. b. Up to to show s negligence towards person in need of rescue, immenent peril, a reasonable person would have seen the peril, acted with reasonable care in rescuing. c. must show that proximately caused danger and while attempting to save people from danger was injured. d. Firefighter Rule-if rescuing is part of your job description, cannot use Rescuer Doctrine, unless the original act was intentional. 7. Foreseeable vs. Unforeseeable a. Kinsman Cases-improperly moored ship breaks free, breaks loose another ship, crash into bridge, ice backs up and floods shore property. Grain co.s unable to unload other ships. i. Kinsman No. 1-Property owners allowed to recover b/c it was foreseeable that negligently moored ship would set off such a chain of events. s injury was foreseeable. ii. Kinsman No. 2-Grain companies not allowed to recover b/c their loss was remote and indirect. Risk was not of same general sort. Their injuries were not foreseeable. iii. If the actors risk, no matter how small, was of the same general sort, from the same forces, and to the same class of persons then the actor would be liable if he failed to exercise due care.

Cases
Ryan v. New York Central

Liable
Immediate

Not Liable
Remote

R.R. Co. In Re Polemis Wagon Mound No. 1 & 2 Derdiarian v. Felix Contracting Corp. Watson

Direct Foreseeable Dependent Intervening Negligent(foreseeable)

Indirect Unforeseeable Independent Intervening (superseding) Intentional(Not Foreseeable)

Injury & Damages

A. Injury to 1. Take /s property as you find him/it 2. Eggshell Skull Doctrine- are obligated to take as they found him and are thus liable for damages when unforeseeable consequences follow from a physical injury to . 3. Bartolone v. Jeckovich- was involved in car crash for which s were found liable. sustained minor injuries, but subsequently suffered an acute psychotic breakdown, due to pre-existing mental condition B. Damages 1. Nominal 2. Compensatory i. Compensate , make him whole ii. Specials-out of pocket expenses, medical expenses, lost earnings (past & future) iii. General-Disability (past & future), disfigurement, pain & suffereing (past & future), derivative claims (loss of consortium) 3. Punitive i. Objective is to punish ii. Must show had malice.

Defenses to Negligence
A. Contributory Negligence 1. A complete defense, 2. If can show that contributed in some manner to her injuries, it is a complete bar to s recovery. a. Butterfield v. Forrester- put a pole across road, riding fast and hit pole and was injured. i. If does not use oridinary care and thereby contributes to his injury, is not liable ii. Didnt matter to what extent was contributorily negligent, just that was partially responsible for his injury. 3. Doctrine of last clear chance-He who has the last clear chance to avoid the injury is liable. a. Attempt to ameliorate the harsh effects of contributory negligence. b. Davis v. Mann-s donkey was grazing near street, speeding, ran over donkey. held liable b/c he had last clear chance to avoid the injury. 4. Contributory negligence of is no longer a complete bar to recovery in most jurisdictions. B. Assumption of Risk

1. voluntarily encounters a known danger and by his conduct expressly or impliedly consents to take the risk of the danger 2. Express Assumption of Risk a. Winterstein v. Wilcom- signed a release waiving his right to bring action in case of injury caused by s negligence in order to participate in drag race. was injured and sued. i. Where expressly assumed risk of a particular activity he may not recover ii. A defense to negligence is the express assumption of risk. 3. Implied Assumption of Risk a. By conduct, impliedly assumed the risk involved. b. Rush v. Commercial Realty Co.- wife fell through the floor in the detached privy of s builing. argued that impliedly assumed the risk. i. Necessity will negate assumption of risk as a defense to negligence 4. Assumption of Risk- has burden to show: a. That had actual knowledge of risk (subjective test) b. That knew the magnitude of the risk c. That voluntarily acted/took the risk. C. Comparative Negligence. 1. Currently the rule in all but 4 jurisidictions. 2. s recovery reduced by the amount contributed to his own injury. 3. McIntyre v. Balentine- was injured in car accident in which both parties were negligent. a. Pure Comparative Negligence- s damages are reduced in proportion to the percentage negligence attributed to him. b. Modified Comparative Negligence i. 50% Jurisdictions- can recover only if s negligence does not exceed 50%. ii. 49% Jurisdictions- can recover only if s negligence is less than s negligence (49% or less). 4. Effect of Comparative Negligence a. Implied assumption of risk is merged into the defense of contributory negligence and the principles of comparative negligence shall apply in all cases where such a defense is asserted-Blackburn v. Dorta. b. Joint & Several Liability i. Bierczynski v. Rogers-During street race 1 hit and injured s, 2 did not. Both sued. a. can collect for any one or all when (1) s acted in concert; (2) s fails to perform a common law duty to ; (3) s acted independently to cause an indivisible harm. ii. Coney v. J.L.G. Industries- Jasper died while operating a hydraulic aerial platform, manufactured by . argued that Jasper was contributorily negligent and that Japsers employer also contributed to Jaspers death. a. The doctrine of comparative negligence does not eliminate joint and several liability

Bartlett v. New Mexico Welding Supply, Inc.- injured when car quickly turned in front of causing her to stop suddenly, and struck s car from behind. a. The adoption of pure comparative negligence system eliminates joint and several liability.. b. bears burden on insolvent , so recovery is limited to % of damages is liable for. c. United States v. Carroll Towing Co.-s negligently shifted the barges mooring lines, barge drifted up against tanker, whose propeller broke a hole in the barge. Barge dumped her cargo, and sank. i. Court apportions damages among parties based on fault ii. PL>B (Probability x Injury>Burden of Precaution determines liability) D. Satisfaction & Release 1. bears the burden and risk of settling 2. Cox v. Pearl- sustained injuries when she fell on property rented by tenant but owned by . had executed a covenant not to proceed with suit with tenant. a. Covenant not to sue does not release all s, just the 1 who settled.. 3. Bundt v. Embro-s sustained personal injuries in an automobile accident that involved several s. a. may recover from one or all s, but can recover full satisfaction only once. E. Contribution & Indeminity 1. is entitled to sue other responsible parties for contribution. 2. Satisfy and lets s figure out apportionment 3. Knell v. Feltman-Car hit a cab. Both drivers were negligent. Passengers in car sue cab driver. Cab driver then sued driver of car passengers were riding in. a. When concurrent negligence contributes to a tort, and they are not intentional wrongdoers, contribution is enforced. F. Other Defenses 1. Statute of limitations has run, a complete defense 2. Statute of repose 3. Immunity a. Inter-spousal immunity-not valid in most jurisdiction b. Parent-child immunity-has been abandoned in some places, but not in all. c. Employer immunity-cannot sue employer in tort for employers negligence on the job. Workers compensation is used to compensate employees that were injured on the job, regardless of fault of employer.

iii.

Vicarious Liability
A. A person commits a tortuous act against a 3rd party and another is liable to the 3rd party for the tortuous act of the person. B. A is liable for Bs action due to the relationship between A & B. C. Respondeat Superior 1. Master-servant context

2. Employer is vicariously liable for tortuous acts committed by his employee if the act occurs within the scope of the employment relationship. 3. If employee is engaged in activity furthering employers enterprise, then employer is vicariously liable for the emplyees tortuous act. D. Generally, employers are not liable for the tortuous acts of independent contractors, 1. Employer cannot control the independent contractor or how he does his job. 2. Exceptions: a. If the employer is negligent in selecting the independent contractor for employment b. Non-delegable duty-potential harm is so great that it cannot be delegated, Malloney case c. If there is apparent authority. 3. Parents are not vicariously liable for the tortuous acts of their children, but may be liable for their negligence in allowing their children to engage in dangerous activities, or if they know that their children have dangerous tendencies and do not attempt to stop/control them.

Strict Liability
A. Liability without fault. B. Policy based C. To establish a prima facie case must show: 1. had an absolute duty to make safe 2. Breach of that duty 3. The breach of the duty was the actual or proximate cause of s injury 4. Injury/damage to D. Animals 1. Strict liability for a. Wild animals a. Domesticated animals know to have dangerous tendencies-allowed 1 bite, 2nd bite leads to strict liability 2. Contributory negligence is not a defense to strict liability (Sandy v. Bushey) 3. Domesticated animals- only liable if he did not exercise reasonable care. E. Ultrahazardous or Abnormally Dangerous Activities 1. who brings something onto his land that could cause mischief/damage if it escapes is answerable for any damages it might cause if it does escape from his land; that thing brought onto land being unnatural/not naturally occurring on the land (prima facie case established). a. Rylands v. Fletcher- reservoir burst and water flooded s coal mine i. If the use of land is non-natural and the consequences of such use, or in consequence of any imperfection in the mode of using the land in a non-natural way, a danger or injury is effected on the neighbor, the s would be liable. ii. A person, who lawfully brings on his land something which though harmless, but will do mischief if it escape, must keep it at his peril, and if he does not, he is answerable for all the damage 2. An activity that involves a substantial risk of serious harm to person or property no matter how much care is exercised; duty owed is to foreseeable .

a. Bridges v. Kentucky Stone-stolen dynamite was detonated and injured and sons i. Restatement (2d): abnormally dangerous activity [not ultrahazardous]: makes decision depend on nature of location where the activity takes place; too many superseding causes to find def liable ii. Yukon-Case noted w/in case; absolute liability b/c ultra-hazardous b. Indiana Harbor v. American Cyanamid-chemical leak from RR car en route, at switching station i. Posners cost/benefit analysis: cost of holding RR strictly liable high, so use negligence as solution; abnormally dangerous substance v. abnormally dangerous activity (activity is critical) ii. Restatement 520 (6 factors): Guille v. Swan- balloonist came down into a vegetable garden in the middle of NYC and people trampled s vegetable garden in an attempt to save . a. (1) Risk of harm is great; (2) Harm that would result if risk materialized could be great; (3) Accidents could not be prevented by exercise of due care; (4) Activity was not one of common usage; (5) Activity was inappropriate to place; (6) Value to community of activity not great enough to offset unavoidable risk iii. Whether an activity is abnormally dangerous is a question of law for judge to decide. iv. Limiting Liability- may not be held strictly liable for: a. Injuries that are not foreseeable Foster v. Preston Mill-blasting operation 2 miles from mink farm caused a mink to eat her babies. Court said that blasting is a ultrahazardous activity b/c of falling debris and vibration of the earth. Fact that mink ate her babies has more to do w/minks high-strung disposition, it was not a foreseeable injury b. Acts of G_d Golden v. Amory-, hydroelectric plant, built dam on river, hurricane caused river to overflow and damaged s property. Intervening act of G_d bar strict liability for action that would otherwise be deemed strict liability. c. Assumption of Risk- If person has full knowledge of animals evil tendencies and voluntarily and unnecessarily puts self in way of such an animal, he is NOT entitled to recover for his injuriesSandy v. Bushey

Products Liability
A. An area of tort liability that developed to encourage manufacturers to make safe products, recompense injured consumers, and put liability on those who are better able to bear the burden of liability and cost. B. Common Law Negligence 1. Privity of contract is not required 2. A duty is owed to any foreseeable 3. MacPherson v. Buick- defective wheel crumbled while driving; sued manufacturer

a. Manufacturer has duty to exercise reasonable care if know product will be dangerous to public if it is negligently made. b. Based on foreseeability; dont have to demonstrate inherently dangerous characteristics C. Warranty 1. Express a. Baxter v. Ford- bought car with representations made of shatterproof windshield; pebble hit car and windshield shattered, lost eye. i. Caveat Emptor no longer relevant b/c manufacturer/buyer relationship so distanced now; privity not always relevant (Mazetti case: bad canned meat) ii. Purchaser has a right to a remedy against the manufacturer because of damages suffered by reason of a failure of goods to comply with the manufacturers representations as to the existence of qualities which they did not in fact possess, when the absence of such qualities was not readily discoverable, even though there was no privity of contract between the purchaser and the manufacturer 2. Implied Warranty of Merchantability-product sold is reasonably fit for general purpose for which it is manufactured and sold, no privity requirement (Sales Act) a. When a merchant who deals in a certain kind of goods sells such goods, there is an implied warranty that they are merchantable b. Henningsen v. Bloomfield- bought car for wife; signed contract without looking at fine print saying no warranties; steering wheel malfunctioned shortly after purchase. i. No express or implied warranty part of the contract not enforceable based on the unfair bargaining power of manufacturer. 3. Implied Warranty of Fitness-Seller knows or has reason to know that: a. Particular purpose for which goods are required b. Buyer is relying on sellers skill/judgment to select/furnish suitable goods D. Strict Liability for Product Liablity 1. must show a. Strict duty owed by commercial supplier b. Breach of that duty c. Actual or proximate cause d. Damages 2. Underlying policy consideration for strict liability a. Insures that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves. b. Negligence against product manufacturer is hard to prove. c. Risk spreading-Manufacturer is in a better position to spread the risk, passes on cost of insurance to consumers. i. Greenman v. Yuba-s wife buys Shopsmith; wood flies out and hits in head while he was using it as a lathe.

3.

4.

5. 6.

7.

A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being. Restatement 402A: Basis of Strict Liability (based on Greenman decision) a. One who sells any product in defective condition unreasonably dangerous to the consumer &/or his property is subject to liability for injury if i. Manufacturer is engaged in business of selling such product; & ii. It is expected to and does reach user without substantial change in condition in which it is sold b. Applies even without contract and if manufacturer exercised all possible care Harmful consequences of strict liability a. Prevents innovative products; corporations will not take risks and brings new, beneficial products wont be introduced. b. Harder on smaller businesses c. Cost of products go up d. Fraudulent claims, people will try to take advantage of the system. Assumption of risk is a complete defense Manufacturing Defects a. must prove: i. That manufactured and sold the product, which at the time sold it; was in a defective condition unreasonably dangerous to the consumer or user; ii. Expected to get to consumer without substantial change in condition; iii. Got to consumer and caused injury (proximate cause of injury) b. Dangerous beyond expectation of ordinary consumer; flaw that is not in the general product line; failure in quality control i. Rix v. GM-manufacturing and design defect; GMC truck hit s car b/c brakes were defective. If a product is flawed b/c it was not constructed correctly by manufacturer, then manufacturer liable for damages. c. Manufacturing defects tend to be the hardest to prove-often the products have been altered by others, after they left manufacturers hands. d. Proving Manufacturing Defects i. Friedman v. GM-17-mo old car started when transmission was in drive If all evidence presented creates a probability that manufactured defective product, will be liable; defects in linkages between gear shift, transmission, and starter ii. If there couldnt be any other cause, but cant identify defect, can use res ipsa loquitur. Design Defects a. Harm could have been reduced or avoided by provision of reasonable alternative design must show reasonable alternative design available.

b. Entire product line is challenged by suit i. Lawn Dart Hypo: can win even if design cannot be made any better; no reasonable alternative; product whose risk so great and utility so low that shouldnt be made c. Negligence risk utility test-whether failed to use reasonable care to protect against foreseeable and unreasonable injury i. Prentis v. Yale Mfg.-battery operated forklift short circuited, fell and was injured. Policy-manufacturer spreading risk; firmer liability than strict needed for design defects Greater incentive to design safer products if theres fault involved; greater intrinsic fairness ii. Majority rule d. Minority Rule-OBrien v. Muskin; manufacturer ability to spread risk through pricing/insurance in risk-utility is additional factor 8. Warning Defects a. Manufacturer fails to provide reasonable instructions or warnings. b. Anderson v. Owens-Corning- contracted asbestosis while working at naval yard; sued manufacturers for failure to warn i. State of the Art defense-no better technology at the time, lack of fault can matter ii. Whether warning was sufficient-has to do with possibility that design is defective but utility was such that dont want to change it, Basis of warning-products that are useful, but may be dangerous c. Effectiveness of Warnings i. Warnings not needed for obvious dangers that are generally known ii. Adequacy of warning is a jury question iii. Learned Intermediary Warning to a learned intermediary is sufficient when the intermediary is the best person to assess the risk of the ultimate userDoctors and pharmacists in dispensing prescription medication Exception: must warn ultimate user if product warning learned intermediary about is widely advertised 9. Defenses a. State of the Art-evidence that particular risk was neither known nor knowable by application of scientific knowledge available at time of mfcr and/or distribution; P bears burden to demonstrate knew (Anderson case) i. Reasonableness component-just b/c something is not done doesnt mean its necessarily a design defect. The alternative must be reasonable. ii. Warnings are not sufficient to avoid liability when the product is not state of the art. b. Sophisticated User-(defense to failure to warn) user has knowledge which makes the danger obvious; the user should reasonably know of danger.

c. Product Misuse-consumer did not use the product as it was intended i. Daly v. GM-drunk , not wearing seatbelt and didnt lock door, thrown from car with defective door latch Comparative Negligence-may apportion damages if was negligent Contributory negligence as a complete defense to strict liability-the defense is not available if the misuse was foreseeable Assumption of Risk is complete defense in strict liability ii. Manufacturer must anticipate reasonably foreseeable uses even if they are misuses of product; unforeseeable use = excuse; foreseeable use = no excuse Ford Motor v. Matthews- was standing next to a riding tractor and turned it one, it ran him over and killed him. o If uses product in abnormal or unintended manner, is not liable for those injuries if they could not have been foreseen; otherwise, is liable

Nuisance
A. A type of harm; an area of liability; NOT a separate tort; Remedies are both at law and equitable relief; can be b/c of negligence, intent, or strict liability B. Private Nuisance (property law concept) 1. A nontrespassory invasion/disturbance of an individuals private use and enjoyment of land; a substantial, unreasonable interference with another private individuals use or enjoyment of their property; concerned with recompense of someones private injury 2. Morgan v. High Penn Oil-oil refinery next to restaurant and trailers emitting nasty odors a. Even if activity is a lawful one, a person can still be liable for nuisance, though he tries to do all he can to prevent harm (dont need negligence) b. Nuisance per se: under any circumstances its a nuisance (not so in this case) c. Nuisance per accidens (in fact): b/c of M.O. or location 3. Winget v. Winn-Dixie-s lived behind grocery store that had right to be there, complained of traffic, smell, lights a. Activities done within the realm of normal operation of business, as long as it does not unreasonably interfere with neighbors quiet enjoyment, does not constitute a nuisance C. Public Nuisance (Criminal law concept) 1. Usually brought be governmental bodies/municipalities; concerned with maintaining public order 2. An unreasonable interference with a right common to the general public (health, safety, or property rights) a. For individual action in public nuisance, must have suffered some unique damage/harm of different kind from that suffered by public exercising the right common to general public. i. Special Injuries:

a. Personal/Physical Injury b. Loss of employment; loss of real property b. Philadelphia Electric v. Hercules-PECO bought contaminated land; DER ordered them to clean it; sued prior owner in private and public nuisance i. No private nuisance: Caveat Emptor ii. No public nuisance: Not suing b/c of right common to public (clean water); their harm didnt come from right to pure water D. Restatement 826-Utility > Harm 1. If utility of the product outweighs the harm and the money that the company would have to pay to recompense victims would put the company out of business, it will be held that there is no nuisance. a. Nuisance whose utility outweighs the harm can buy out the nuisance b. Boomer v. Atlantic Cement-neighboring property damaged by cement plant i. Injunction granted subject to payment of permanent damages ii. If permanent damages does justice between the parties, injunction will be avoided c. Carpenter v. Double R Cattle-feedlot (valuable industry) created nuisance to neighboring property i. Court held that there was NO nuisance b/c benefit to public outweighed nuisance; forcing nuisance to pay would put them out of business. E. Defenses 1. Coming to the Nuisance-residential landowner may not be awarded relief if he knowingly came into the neighborhood reserved for industrial/agricultural use and has been damaged thereby. a. Not a complete bar to recovery in public/private nuisance. b. Spur Industries v. Del Webb-developer created development near cattle feed lot already there; action in public nuisance (no private nuisance action) i. Common problem-smell and flies; Special injury to -cant sell lots ii. Equity result-injunction on , but developer should pay for relocation b/c developed came to the nuisance.

Defamation
A. Action for loss of reputations 1. If words are defamatory they are presumed to be false and there is a presumption of (at least nominal) damages. 2. Court will decide if words are defamatory as a matter of law. If the words are ambiguous, then it is a question for the jury a. Belli v. Orlando Daily-libel about lawyer published in paper describing how he took FL Bar. i. Should have been left for jury to determined whether words were damaging to ; libel per se B. A communication that tends to damage s reputation in popular sense; to diminish respect, good will, confidence or esteem in which he is held, or to excite adverse of unpleasant feelings about him

C. Assuming the words are defamatory, must prove: 1. Statement was made, and 2. Statement was communicated to a 3rd person 3. Do not have to prove intent D. If the defamatory statement was ambiguous, must plead and prove: 1. Words-prove that statement was defamatory a. An action for defamation against the dead will not lie, but if the defamation affects the living, those affected may sue 2. Publication-communication to a third person, who is capable of understanding the statement a. Economopoulos v. A.G. Pollard Co. b. If defamatory statements are in a language that 3rd person doesnt understand there is no defamation 3. Inducement-must prove extrinsic facts that make statement defamatory 4. Colloquium-words about , formal allegation about a. Bindrim v. Mitchell-nude marathon psychiatrist depicted in fiction novel i. If reasonable person knows its , even if only a few people, good enough for defamation action ii. Defamation can be based on fiction if it is transparent b. Neiman-Marcus v. Lait-magazine wrote story saying N.M. models and saleswomen were call girls and salesmen were gay i. Large group-none can sue even if libel about everyone in group ii. Small group-each and every member can sue; are identifiable (if language is some/most of group) 5. Innuendo-defamatory meaning; conclusion reached if inducement is understood 6. Special damages-something in pecuniary/monetary sense a. Cant get punitive damages without nominal/compensatory damages 7. Context is what matters when meaning of word is unclear E. Defense 1. Substantial Truth-an affirmative defense a. Defamatory words are presumed to be both damaging and false. b. Truth is not part of s case c. has the burden to plead and prove truth of statement i. Kilian v. Doubleday-WWII vet wrote 3d hand account in 1st person of at POW camp doing atrocious things a. Substantial truth is s defense to defamation b. Not available in this case 2. Conditional Privilege a. Recommendation privilege, must plead and prove b. Is a question of law; goes to jury if fact dispute about nature of what was said c. Sindorf v. Jacron- left to work for s competition; pres of co. called pres of other to ask question about , then offered warning about . i. Privilege exists between former employer and prospective employer about employee, but publication must be without malice and for general interest of the public good. ii. Malice destroys conditional privilege defense

If offers info/defamatory statement, usually means malice, so conditional privilege is not a defense. iv. has the burden of production and persuasion v. Presence of malice is almost always question of fact;. F. Categories of Defamation 1. Libel a. written defamation, dont need to prove special damages b/c it is more permanent b. Restatement 586-area of dissemination is a factor to be considered in determining whether the defamation is libel or slander c. Shor v. Billingsley- ad-libbed defamatory statement about on nationwide radio telecast i. Court ruled it as libel, but most jurisdictions, this is NOT law; is now regulated by statute. a. Unscripted broadcasting is slander b. Scripted broadcasting is libel d. Single publication rule-only one cause of action can arise at the time of first publication by one source (majority rule) i. Republications by different sources gives rise to new causes of action ii. Ogden v. Assoc of US Army-suit brought after statute of limitations ran iii. Minority rule-every subsequent republication is a new cause of action. 2. Slander a. Oral/spoken defamation b. If publication is made and the 3rd person does not hear or understand it, it is not slander. i. Economopoulos c. Slander Per Se i. If a statement is defamatory on its face, do not need to prove special damages ii. Categories of Slander Per Se a. Accusations of major crime, crime involving moral turpitude b. Loathsome disease c. Business, trade, profession d. Serious sexual misconduct d. Slander Per Quod i. must prove special damages ii. Terwilliger v. Wands- said was sleeping with another mans wife, could not prove monetary lose, only physical illness at apprehension of loss of reputation a. Damages must be of pecuniary nature when special damages need to be pled and proved; if cant show pecuniary damages, cant succeed G. Liability-negligent or intentional behavior leading to communication to a third party 1. Liable-leave diary out for everyone to see, talk loudly so everyone can hear (negligent or intentional)

iii.

2.

Not liable-accidentally drop diary, someone eavesdropping

Privacy
A. 4 Kinds of Privacy Actions 1. False Light-similar to defamation cause of action; a. Must prove i. That the words were such that reasonable person would find them offensive ii. Falsity of statement iii. Publication of statement b. Hustler Mag v. Falwell-parody ad of Falwell sleeping with mom. VA didnt have false light cause of action b/c it is so close to defamation 2. Intrusion a. Must prove i. Intrusion into a private place, where one has expectation of privacy ii. Information must be highly offensive to a reasonable person b. Pearson v. Dodd-Ex-employees copied Senators documents without consent and published them knowing how they were obtained i. protected by 1st Amendment b/c he was not the one who stole info (if he stole it, it might have been different outcome) ii. News entity not liable for invasion of privacy if material published/reported concerns a public official 3. Publication of Private Facts 4. Appropriation a. Flake v. Greensboro News-s picture run in news ad by mistake i. A persons picture may not be used for commercial purposes without that persons consent

Misrepresentation
A. Is the basis for numerous other torts, grew out of traditional tort of deceit B. Fraudulent Misrepresentation 1. Essentially a contract action 2. Intentional tort 3. 5 Elements a. Material misrepresentation i. False statement known to be false ii. Concealment/covering up defect a. Griffith v. Byers Construction Co.-salt content of soil made it impossible/extremely expensive to grow vegetation on land i. No privity between land developer and buyers. ii. Held that if it is foreseeable that buyer is not final buyer, privity is not needed. When a vendor is aware of material defect and fails to disclose it to subsequent purchasers, he is liable to those purchasers for damage that is caused. iii. If you are in a class that the seller expects to reach, privity is not needed-McPherson v. Buick

Omission/imbalance of knowledge a. Swinton v. Whitinsville Savings Bank- was not informed of termite infestation when he bought his house i. Caveat Emptor ii. There is not liability for bear non-disclosure. iii. Today it would be an omission iv. Implication of facts-predictions, opinions, intentions can be basis of material misrepresentation if put forth as facts b. Scienter i. Mental requirement, proper mental frame to commit a crime or tort. ii. Derry v. Peek-brochure claimed tram system would be operated by steam power rather than animal power. a. Deceit lies only if there is a breach of contract or fiduciary obligation. b. Fraudulent misrepresentation requires scienter-need intent to misrepresent. If have an honest belief in the truth of the statement, is not guilty of misrepresentation. Must know it is false. c. Fraudulent misrepresentation (1) Know statement is false; (2) Doesnt have confidence in the claim; (3) Knows there is no basis for the claim. c. Intent to induce reliance i. must intend to induce reliance d. Justifiable reliance i. must justifiably rely on misrepresentationfact specific (who said it, what are the circumstances, reasonable opportunities to discover truth, intelligence of ) ii. Williams v. Rank and Son Buick, Inc.- wanted air conditioned car; test drove and bought car; later discovered car did not have air conditioning a. Justifiable reliance is a factual question for jury, court ruled on it as a matter of law. b. Cant rely on an oral representation when you have ample opportunity to discover the falsity of the statement iii. Saxby v. Southern Land Co.-representations about acreage of farm, its suitiblity for potato farming, and price timber from land would fetch in town were relied on by , but were not exactly true. a. Court held that such statements were trade talk. b. Buyer could have inspected the land before purchase. c. Cant justifiably rely on the statements of the sellercould have walked the land. Yield of field and what wood would sell for are speculative statements, actuality depends on various factors, cant justifiably rely iv. Vulcan Metals Co. v. Simmons Mfg. Co.-representations about superior quality of vacuum were made, purchased patent. a. Court held that statements were puffing, industry tactic of glorifying product.

iii.

b. Parties were on equal footing, thus reliance is not justified. e. Pecuniary Damages C. Negligent Misrepresentation 1. Requires neither intention (scienter) not pecuniary damages 2. Elements: a. Relationship between the parties from which a duty arises to provide correct information b. Knowledge that the information is desired for a serious purpose c. Reliance by d. Injury 3. Duarte- was told campus was safe, it wasnt and daughter raped and killed 4. International Products v. Erie RR- told his goods were in 1 dock; insured the goods in that dock; goods were actually in another dock which burned; couldnt collect insurance $ a. Negligent misrepresentation requires reliance b. Understanding of knowledge and the importance of that knowledge c. No fraud or deciet 5. Hanberry v. Hearst Corp.- gave the Good Housekeeping seal of approval to shoes, bought them, and fell and was injured while wearing them. a. Where an endorser represents to the public that it possesses superior knowledge and special information concerning the product it endorses, respondent may be liable for negligent representations of either fact or opinion. D. Misrepresentations upon which 3rd Parties Relied 1. Ultramares Corporation v. Touche- audited Stern, & knew Stern would use s certified balance sheet to get $ from banks. relied on s audit and lent $ to Stern. Stern went bankrupt a. There is no liability for negligent misrepresentation to third parties. b. No privity and no contact with 3rd party. 2. Glanzer v. Shepard- certified weight of sellers beans and provided buyer directly with the certified weight. a. held liable even though there was no privity, b/c of direct contact with 3rd party (buyer) 3. Credit Alliance Corporation v. Arthur Andersen & Co.- s suffered damages lost on s outstanding loans to a company, due to negligence and fraud in s preparation of audit reports of company. a. Non-Contractual Party Liability (New Test) must show i. Accountants were aware that statements would be used for a particular purpose; ii. Accountants knew the relying party; and iii. Some conduct on the part of the accountants linking them to that party. b. Generally speaking, the closer you get to something resembling privity, the closer you get to liability. 4. Citizens State Bank v. Timm, Schmidt & Co. a. Minority opinion b. Decide liability based on foreseeability- was it foreseeable that a 3rd party would have relied on the statements? 5. Restatement Approach (middle of the road opinion)

a. If is in limited group of person and transaction is substantially similar to the one intended by , then there is liability b. must have some kind of knowledge that a limited group of people or entities will rely on the statements.

Intentional Interference with Advantageous Relationships

A. An intentional tort B. Umbrella term for 2 causes of action: 1. Intentional Interference with Contractual Relationships a. Lumley v. Gye- had an exclusivity contract with opera singer. intentionally persuaded her to break contract. i. An action will lie for an intentional direct interference with a contract. ii. Companion case, enjoined singer from singing anywhere else. b. Bacon v. St. Paul Union Stockyards Co.- barred from stockyards and rendered unable to fulfill his employment contract. i. An action will lie for an intentional indirect interference with a contract. ii. barring from stockyards indirectly interfered with his employment contract. c. Adler, Barish, Daniels, Levin and Creskoff v. Epstein-s, who were former associates in s law firm, formed their own firm and solicited s clients for their business. i. Interference with contract case b/c these are clients who signed contract w/ ii. In intentional interference with contractual relationships the interference itself is improper-dont need a determination of improper/wrongful conduct. d. Brimelow v. Casson- underpaid performers, which forced them to become prostitutes. got theatre owners to break contracts w/ in protest of low wages. i. Interference with contractual rights may be excused for certain reasons, such as policy reasons, and public/social interests. ii. Also a small point in Bacon v. St. Paul Union Stockyards Co. 2. Intentional Interference with Prospective Contractual Relationships/Economic Opportunity a. Della Penna v. Toyota Motor Sales, U.S.A., Inc.- car manufacturer barred from diverting its luxury car for foreign sales. 1. For intentional interference with economic opportunity, has the burden to prove that the interference was wrongful. 2. Interference with economic opportunity requires improper/wrongful conduct b/c without such proof, it is merely economic competition. 3. Restatement 767-To determine whether conduct was wrongful or improper a. Nature of actors conduct b. Actors motive c. Interests of other with which actors conduct interferes d. Interests sought to be advanced by the actor

e. Social interests in protecting the freedom of action of the actor and the contractual interests of the others f. Proximity or remoteness of the actors conduct to the interference g. Relationship between the parties. 4. CA Supreme Court rejected Restatement test. 5. What constitutes improper/wrongful conduct is a question of law for the judge.