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- According to BLS - Intent is the state of mind accompanying an [voluntary] act, especially a forbidden act. 1. According to Restatement (Second) of Torts, intent is defined as: i. When an actor desires to cause consequences of his or her act; or ii. When an actor believes the consequences are substantially certain to occur. Assault - The D must act with intent to place the victim in reasonable apprehension of an imminent harmful or offensive contact. 1. The D must: i. Act with intent ii. To place the victim in reasonable apprehension of an iii. Imminent, iv. Harmful or offensive contact 2. What does "apprehension" mean? i. The expectation or anticipation of a contact ii. Not necessarily fear iii. The contact must be "imminent" 1. No significant delay 2. Future threats are not actionable 3. Most courts: "mere words" / conditional statements are not enough unless coupled with acts or threatening circumstances. Usually applies to "reasonable apprehension" or "imminent" requirements. Consider context (past history, proximity, etc) Battery - D must act with intent to cause harmful or offensive contact to the victim and D's intended contact must be harmful or offensive to the victim. 1. The intentional infliction of a harmful or offensive contact with the person of a plaintiff. i. Elements of Battery 1. D must act 2. D's act must be intentional; 3. D's act must cause a contact with the victim; and 4. D's intended contact must be either harmful or offensive to the victim. ii. No contact is intentional if it is not the result of a voluntary act
1. D must EITHER 1. Act for the purpose of inflicting a harmful or offensive contact; OR 2. Realize that such a contact is substantially certain to result iii. Motive does not matter. Substantial certainty that the contact is about to occur is sufficient. For example, in the case Garret v. Dailey, substantial certainty that Garratt would fall is sufficient for a battery. You do not need a harmful motive. iv. Thin Skulled Plaintiff / Egg Shell Plaintiff - When you intend to commit an intentional tort upon another, you are responsible for any pre-existing conditions the other person has, even if you are unaware of them. v. The Contact Requirement 1. Includes objects connected to victim's person. 2. D doesn't actually need to touch the P, or even be present at the time of contact to commit a battery. vi. Harmful or Offensive Contact 1. Harmful: Any physical impairment of the condition of another's body, or physical pain or illness 2. Offensive: Offends a reasonable sense of personal dignity. Assault v. Battery 1. Assault does not require harmful or offensive contact; however, assault requires the victim to be "reasonably placed in apprehension of the contact." i. Ex: A threatens to touch B with an harmful or offensive contact - This would be a classic case of assault since B is "apprehensive" of A touching him/her. However, this would not be a battery. 2. Battery requires an harmful or offensive contact; however, battery does not require the victim to be "reasonably placed in apprehension of the contact." i. Ex: A intentionally touches B with an harmful or offensive contact - This would be a classic case of battery. However, unless B was aware of A's intention of touching him/her BEFORE the actual contact, an assault would not have occurred.
Doctrine of Transferred Intent - If you intend to commit an act on one person and end up committing the act on another person, the intent can be "transferred". 1. Occurs when a person intends to commit a battery on one person (A) and actually inflicts a battery on someone else (B) instead. 2. The intent to hit A transfers to B, and the actor will be liable to B (even though intent was to hit A) 3. Only applies to Assault, Battery, False Imprisonment, Trespass to Chattels and Trespass to Land. 4. Transferred intent does not work on cases where A batters B and B falls on C. False Imprisonment 1. Common Law Definition: Any unlawful exercise or show of force by which a person is compelled to remain where s/he does not wish to remain or to go where s/he does not wish to go 2. Elements of False Imprisonment i. Actual or Legal intent to restrain 1. Legal intent: substantial certainty that victim would be restrained. 2. Physical force not required 3. Threat of force is sufficient ii. Detention or Confinement 1. Total confinement (not partial) 1. Reasonable means of escape is required or it is false imprisonment. Example, if you ask to leave the car, and they slow down the car (but not stop), it is still false imprisonment. iii. P's awareness of confinement 3. A legal justification is sufficient for false imprisonment i. Ex. Shopkeeper holding you for a reasonable period of time period of time can be a lawful act and would not be false imprisonment 4. Denying admission to an area is not false imprisonment 5. The length of time of imprisonment can increase the seriousness of the crime 6. Being stuck on a tarmac in the airport is not false imprisonment since you usually "consent" to it when you buy the ticket. 7. Holding your personal items and asking you to come along can be false imprisonment.
Ex. If personal item is a purse/wallet/car keys, it is usually false imprisonment. ii. Ex. If personal item is a pen or non-critical item, it is not false imprisonment. iii. Ex. Withholding money/economic threat is not a sufficient a threat for false imprisonment. 8. Shopkeeper's privilege (Modern Trend): If a shopkeeper has a reasonable belief (witness/employee caught you, camera of you stealing, etc) that you shoplifted, they can use a reasonable manner/amount of force to hold you for a reasonable time period. Intentional Infliction of Emotional Distress (IIED) 1. Elements of IIED i. Intentional or reckless; ii. Conduct offends generally accepted standards of decency and morality ("extreme and outrageous" conduct by D); iii. Causal connection between wrongdoer's conduct and the emotional distress; and iv. Severe emotional distress 2. IIED claims made by a public figures for defamation must show actual malice on the part of the defendant (ie. With knowledge that the statement was false or with reckless disregard as to whether or not it was true). 3. In an exam make sure you apply each element to the facts of the case. Every element MUST be established. 4. No extra duty to unduly sensitive people unless the defendant knows the person is unduly sensitive. 5. School District Responsibilities to Students i. School not liable for IIED claims against teachers unless they are provided actual notice ii. School can be held liable for student on student IIED claims as long as the "deliberate indifference" standard is met. iii. School can be liable for IIED claims by disabled students against students 6. Requirements for 3rd party recovery i. The third party victim must be a close relative of primary victim; ii. The third party victim must be present at the time of the outrageous conduct; iii. The D must know that the third party victim is present. Chattels: Personal property (not real property)
1. Conversion vs. Trespass to Chattels i. Conversion: Provides remedy for permanent interference with, or damage to personal property. 1. Liable for the full value of the property ii. Trespass to Chattels - Provides remedy for temporary interference with, or damage to personal property. 1. Liable for the diminished value of the property. 2. A trespass to chattel may be committed intentionally: 1. Dispossessing another of the chattel, or 2. Using or intermeddling with a chattel in the possession of another (RT 217) 3. Liability for Trespass to Chattels 1. An actor is subject to liability if: i. s/h dispossesses the possessor of the chattel; or ii. The chattel is impaired as to its condition, quality or value; or iii. The possessor is deprived of the use of the chattel for a substantial time; or iv. Bodily harm is caused to the possessor (item not person), or harm is caused to some person or thing that the possessor has a legally protected interest. iii. Conversion 1. Definition: An intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel (RT 222A). 2. Liability for Conversion 1. Important factors: i. The extent and duration of D's exercise of dominion or control; ii. The D's intent to assert a right inconsistent with P's right or control; iii. The D's good faith; iv. The extent and duration of the interference; v. The harm done to the chattel; and vi. The inconvenience and expense caused
Defenses and Privileges to Intentional Torts. Privilege - A legal right to do something that would otherwise be tortious. 1. Consent - "Volenti non fit injuria" - To one who is willing, no wrong is done. See Hart v. Geysel i. Consent can be express, apparent, or implied; 1. Express consent - Usually words 2. Apparent - Conduct reasonably manifests willingness 3. Implied - Ex. If unconscious in emergency room, there is an implied consent that the doctor can operate. ii. The scope of consent can be exceeded; iii. Consent to an illegal act is nullified. iv. There can be a limited privilege in case of emergencies. 1. Ex. If unconscious in an emergency room, the doctor can do the minimum required to save the life. He does not have the privilege to do elective procedures. 2. Ex. Unconscious victim in a car accident. You have the limited privilege of saving the victim, even if the victim receives "reasonable" damage from your actions. v. Consent obtained through fraud is invalid 1. Male falsely tells female he cannot impregnate her. The female consents to sex. The female gets pregnant. The female can go after male for battery charges. 2. Self Defense - Is a limited privilege. Does not give you the right to take an eye for an eye. You can protect yourself from an imminent or impending battery or attack. It is not that it happened in the past or the future, but protecting yourself from something that is happening right now. If someone hits you and proceeds to walk away, you cannot retaliate and claim self defense. i. D must reasonably believe that the use of force is necessary to prevent or repel an attack ii. The D cannot exceed the scope of the privilege iii. The means used must be proportional to the threat posed (the "equivalence" rule); 3. Defense of Others: i. Actor stands in the shoes of the third person. Can only use defense of others if the third person is privileged to use self defense. 4. Protection of Property: See Katko v. Briney (Note: Deadly force might be acceptable if you sleep at the property)
i. D's defense of property must be reasonable ii. D cannot use deadly force to protect property 5. Necessity (See Vincent v. Lake Erie. Transportation Co.) i. The defense or "privilege" of necessity applies where someone (the D) has acted reasonably in damaging or destroying the property of another (the P) in order to avoid harm to themselves or to their property ii. The P is an innocent party; the risk of harm is created solely by the D. iii. Two types of Necessity 1. Public Necessity 1. Arises when there is a risk to property of a large number of people (the "public"); 2. Risk can be eliminated by damaging or destroying property belonging to P; 3. Is a "privilege" that is absolute (ie. Can be a complete defense to liability); and 4. P cannot prevent D's use of P's property 2. Private Necessity 1. Arises when there is risk of harm to property of one person/small number of people; 2. The risk can be mitigated or eliminated by damaging or destroying property belonging to someone else (the P); 3. Is a privilege that is conditional or qualified (ie. Not a complete defense to liability); and 4. D is liable to P for harm to property (must compensate P) Negligence: Duty X. Negligence - Accidental, unintended injury 1. Negligence: Two Meanings i. Courts also refer to a negligence standard - A standard of liability we hold people to ii. A claim of negligence refers to a tort that has four distinct elements. 2. The Negligence Standard i. Refers to the failure to live up to (or breach of) the standard of due care
1. Ex. D failed to exercise reasonable case under the circumstances ii. A D may be negligent without being liable for negligence 3. The Tort of Negligence i. Ps must prove four distinct elements in order to recover on a claim of negligence 1. A duty of care; 2. Breach of the duty (of reasonable care); 3. Causation; and 4. Damages XI. The Duty Requirement: Physical Injuries 1. What is duty? i. Duty: Whether the therapist had a special relationship? Whether there was reliance? Whether there was an affirmative duty to act? Standard of care ii. When analyzing duty ask: 1) What is the duty and 2) to whom is the duty owed. Breach: Who did therapist have duty to? When the therapist have a duty? Breach of standard of care III. Nonfeasance (failure to act): Typically there is no duty to act to help another, even if the effort or cost is trivial. However, under some special circumstances, a duty to act can be imposed. 1. Generally there is no duty to act. Compare to misfeasance (A lawful act performed in a wrongful manner) where a duty to act usually arises. II. Policy Bases for Invoking No Liability 1. Enabling Torts: Defendant's actions made it possible or more likely for someone else to commit a tortious act. i. Factors to Consider for Liability/Duty: 1. Was the defendant "Strategically Placed?" 2. Compensate Plaintiff 3. Foreseeability 4. Public Policy 1. Public policy can sometimes limit liability due to practical concerns (ex. Unreasonable burden). 2. Impact of decision (Harm to P or D, Crushing Liability, Public Good, etc)
2. Privity Doctrine: If A and B have a contract, and B is injured under the terms of the contract with A, B can sue A. However, if C a non-member of the contract is hurt under the terms of the contract, A is not liable to C. Duty to Rescue: Generally, no duty to act unless there is a special relationship between the parties, or the actor created the risk of harm (A party owes a duty of care to any reasonably foreseeable plaintiff) or the actor assumed the duty to act. 1. Special Relationship to Victim or Special Relationship to the Perpetrator: (Parent/Child, Spouse, etc): A special or pre-existing relationship between the D and person who needs assistance or between the D and person who caused the victim to be placed in the situation. ; i. Parents/Children ii. Master/Servant iii. Possessor of Land/User of Land iv. Therapist/Patient/Third Parties (See Tarasoff case) 1. Once a therapist does in fact determine, or under applicable professional standards reasonably should have determined, that a patient poses a serious danger of violence to others, he bears a duty to exercise reasonable care to protect the foreseeable victim of that danger. 1. Serious threat made to a reasonably identifiable victim is required. Therapist has duty to take reasonable measures to warn the victim and law enforcement. 2. A doctor is liable for his negligent act of failing to warn a patients family/etc only if he was aware of the relationship. For example, a doctor who negligently fails to inform his patient she has a sexually transmitted disease is not liable if her future husband gets the disease, unless he was aware (or reasonably should have been) of the patient's relationship with her future husband. 2. Creation of Peril: A well-established exception to the no-duty-torescue rule applies when the need for rescue arises because of the defendant's negligence. Also, some jurisdictions have found an exception where a person's fault-free conduct gives rise to the need to rescue. Indeed, there is movement toward imposing rescue
obligations on those who are connected in any way to the need for rescue. i. Non-Negligent Injury: If the actor knows or has reason to know that by his conduct whether tortious or innocent, he has caused such bodily harm to another as to make him helpless and in danger of further harm, the actor is under a duty to exercise reasonable care to prevent such further harm. 1. At Common Law, there was no duty to act due to a non-negligent injury. ii. Creation of Risk v. Failure to Prevent Risk (or conferring a benefit): An actor who creates a risk has a duty to act, while an actor does not have a duty to prevent risk or confer a benefit. 1. Ex. Neighbor's house is on fire, and he asks to use water from your pool to put the fire out. You have no duty to supply your neighbor with the water from the pool. 3. Undertaking to Act and Reliance: If the plaintiff can establish that he relied on the promise and would have acted differently without the promise, duty might exist. Additionally, a duty can be found where the D's unfinished rescue efforts have dissuaded others from helping. i. Ex. Employee asks manager to let him know if his pregnant wife calls since she might go into labor at any time. Manager promised to let the employee know when his wife called. The wife called and the manager did not forward message to the employee. The courts held that the manager had a duty to let the employee know because he promised the employee and the employee relied on the manager's promise. ii. Rescue Doctrine: While people generally have no obligation to intervene, once they do, a duty arises. There are different views about the extent of the obligation: under the traditional view, once a person undertakes to rescue, he must not leave the victim in a worse position; under the more modern view, the rescuer is obligated to act reasonably once he has begun to act. Closely related to the undertaking to act concept is the concept of reliance. Courts have found a duty where the defendant caused the plaintiff to rely on promised aid. 1. Four Elements:
1. D was negligent to the person rescued and his negligence caused the peril, 2. Peril was imminent, c. Reasonable person would have perceived that peril was real, and d. Rescuer acted with reasonable care in effectuating the rescue. iii. Negligent Entrustment: 1. One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them. Duty to Control and Protect: Generally, a person has no duty to control another person¶s conduct to prevent harm to a 3rd person UNLESS there is a special relationship AND knowledge (actual or constructive) of the need for control 1. Duty of Business Owners: i. Four Approaches (One rule 3 tests) for determining liability: 1. Specific Harm Rule: Outdated rule. Landowner owes a duty to protect customers from criminal acts only when he is aware of the specific imminent harm about to occur. 2. Totality of the Circumstances Test: Majority view / broadest view. Takes into account, similar incidents, nature, condition and location of the land, level of crime in surrounding area, any other relevant factual circumstances. 3. Prior Similar Incidents Test: Narrower view than totality of the circumstances test. A plaintiff can establish foreseeability by presenting evidence of similar crimes on or near the property 4. Balancing Test: Minority view that CA and TN use. Posecai court adopts this view. Court weighs the foreseeability and gravity of the harm against the burden imposed on business to protect its customers
from that harm. Similar to the hand formula. Favors businesses compared to other tests. 2. Duty: Governmental Agencies (State/Local) i. Governmental agencies generally do not have a duty to act. Basically, failure to act (nonfeasance) is usually acceptable. Furthermore, governmental agencies are generally not liable for damages caused by their negligent acts. 1. Police have no Duty unless Special Relationship: a. Rule: Generally not liable for failing to protect individual citizens. Duty exists due to special relationships when (Cuffy Factors): (Not followed by all jurisdictions) a. An assumption by the municipality through promises or action, of an affirmative duty to act on behalf of the party who was injured; b. Knowledge on the part of the municipality's agents that inaction could lead to harm; c. Some form of direct contact between the municipality's agents and the injured party; and d. The party's justifiable reliance on the municipality's undertaking. b. Examples of when Police duty to protect was imposed: a. Most courts have limited a finding of duty to situations where: i. the D-police undertook to act and created reliance OR 1. Ex: police promised to tell P¶s wife when prisoner was released, failed to do so, and P¶s wife was killed ii. enlisted the aid of the P OR 1. Ex: Witness asks for protection when testifying in a criminal trial after the police asked for help iii. increased the risk of harm to the P
1. Ex: directed P to the middle of the intersection where P was hit by another car ii. Other Rules (Local Government): 1. Judicial Immunity: Absolute immunity. Prosecutors fall under the judicial immunity 2. Police: Qualified immunity. Good faith defense. 3. City owes the public an absolute non-delegable duty to keep streets in a reasonably safe condition. However, their non-delegable duty is measured against their discretionary functions. 4. Qualified immunity rule: A government body can be held liable for traffic conditions only when the condition is plainly inadequate or no reasonable basis for its traffic plan. 5. Unreasonable Delay: Once a city formulates a plan to remedy the problem, an unjustifiable delay to implement the plan is a breach of the city's duty to the public. 3. Federal Government: (FTCA) i. Liability depends on type of activity (Lauer v. City of New York): 1. Discretionary Function: Government making policy decisions would generally be discretionary. Discretionary activities of governmental employees usually does not lead to liability because they are froth with policy (budget/policy/concerns), and the court does not want to second guess another branch of government. See two party test below for exception. 2. Ministerial Function: Ministerial activities, ones where a federal statute, regulation, or policy specifically prescribes a course of action for the employee to follow. Negligent acts by the government of ministerial functions can lead to liability. ii. Two Part Test to Determine if Discretionary Function Exception to Liability Applies: 1. Whether a federal statute, regulation, or policy specifically prescribes a course of action for the employee to follow, liability can exist (ie. Is it a ministerial function?)
a. If a "rule" prescribes a course of action, liability exists. If not proceed to step 2. 2. Whether the challenged discretionary acts of a government employee are of a nature and quality that Congress intended to shield from tort liability. a. Decisions that require choice are exempt from suit under the Federal Tort Claims Act (FTCA) only if they are susceptible to policy judgment and involve an exercise of political, social, or economic judgment. iii. No strict liability for federal agencies and no liability for intentional torts. Duties of Landowners and Occupants: 1. Common Law or Traditional Approach: Three Categories of Plaintiffs (Determining appropriate category is a question of law for the court). Possessor's intention determines status of the party (esp. licensee v. invitee): i. Trespassers: All entrants to land are trespassers until the possessor of the land gives them permission to enter. 1. Duty: No duty owed by landowner to warn trespassers. However, you have a duty not to inflict wanton or reckless injury to the trespassers. 2. Exceptions to No Duty Rule: a. Discovered Trespassers: If you know people walk across your property on a regular basis, you have a duty to warn the trespassers. b. Attractive Nuisance Doctrine (Duty to Child Trespassers): Possessor of land liable for injuries to children who were unaware, because of their immaturity, of risks associated with a property. Most courts do not require that the child have been enticed onto the land by the sight of the danger. a. Foreseeability not enough to establish duty. Possessor must have seen children play on the land before and have reason to believe they will continue to do so in the future. ii. Licensees: All persons who enter a premises with permission are licensees until the possessor has an interest in the visit
such that the visitor has reason to believe the premises have been made safe to receive him. 1. Duty : Possessor owes a licensee the duty to make safe dangers of which the possessor is aware. a. Affirmative Activities: When a licensee, whose presence is known or should be known, is injured or damaged by some affirmative activity conducted upon the property by the occupier of the property the duty owed to such a person is one of reasonable care under the circumstances. 2. Justifications for treating social hosts as licensees (Carter v. Kinney) a. Lack of monetary gain. Lack of "Quid pro quo" for a higher duty of care that exists for invitees. b. Privacy rationale - "Your home is your castle." c. Nonfeasance v. Misfeasance. Those who fail to inform someone of a risk is guilty of nonfeasance, but generally nonfeasance is not a negligence crime. iii. Invitees: All persons who enter a premises with permission, and the possessor has an interest in the visit such that the visitor has reason to believe the premises have been made safe to receive him. Usually business related. 1. Duty: Possessor owes invitees the duty to exercise reasonable care to protect them from both known dangers and unknown dangers that would be revealed by inspection. 2. Ordinary Negligence Approach: Possessor owes a standard of reasonable care to all lawful entrants to his land. Some jurisdictions allow liability for all non-trespassers. Common Law categories of invitee and licensee are discarded in states who follow the ordinary negligence approach. i. Rowland v. Christian: CA courts argued that the three classifications of trespasser, licensee, and invitee are abolished, but can be considered when determining what is reasonable. 1. 25 states abolished some or all of the categories 2. 18 states keep some of the categories 3. 7 States keep all of the categories ii. Following Rowland, CA enacted Civil Code 1714:
1. "Everyone is responsible for an injury occasioned on another by his want of ordinary care in the management of his property or person, except so far as the latter has brought the injury on himself." 3. Recreational use of Land: Almost all states have enacted statutes that limit the liability of owners of land used for recreational purposes. Willful misconduct is generally required for liability. 4. Landlord and Tennant: A landlord must act as a reasonable person under all circumstances, including the likelihood of injury to others, the probably seriousness of such injuries, and the burden of reducing or avoiding risk. Duty Requirement: Non-Physical Harm 1. Emotional Harm: Negligent Infliction of Emotional Harm (NIED) i. Where negligence causes fright from a reasonable fear of immediate personal injury, which fright is adequately demonstrated to have resulted in substantial bodily injury or sickness, the injured person may recover if such bodily injury or sickness would be regarded as proper elements of damage had they occurred as a consequence of direct physical injury rather than fright. ii. Doomed Victims: States have adopted survival statutes that generally permit the decedent's estate to proceed with claims that the decedent might have brought but for the death. 1. Some states (including CA) bar recovery for intangible damages if the victim is not alive at the time of the final judgment. 2. Various Approaches Used (Discuss all tests in an exam): Mention that the independent duty theory was used in the past; however, apply the other three rules to the exam. i. Independent Duty Theory (Former/Common Law): No duty for emotional harm unless: 1. Negligently Handling a Corpse 2. Negligently sending a telegram announcing the death of a relative/loved one. ii. Impact Rule (Minority): Plaintiff can recover for emotional harm only if there is some impact to the plaintiff's body. The impact can be minor and does not need to cause the injury (inhalation of smoke, dust in the eye, slight burns, slight
touching, etc. are sufficient impact). Just being scared is not enough. 1. Rationale for limiting NIED claims to physical impact situations: a. Concerns of Fraud b. Floodgates of litigation/Public Policy c. Problems of Proof Zone of Danger Rule (Majority): Many courts use the zone of danger rule instead of the impact rule. In order to get damages for negligence, the plaintiff must be within the zone of danger (close enough to the accident that the defendant's actions could have caused harm to you personally) of the tort. Still requires some impact, but the impact can be an emotional harm that manifests itself with physical symptoms. Dillon Rule(CA Rule): Also called the bystander rule. Rejects the zone of danger test and applies a broader and more lenient test. Substitutes it with a three factor test: 1. Proximity 2. Visibility c. Relationship 1. Rationale: Closer the proximity to the accident, the more visible the accident was to the plaintiff. The closer the relationship between the plaintiff and the party within the zone of danger, the greater the foreseeability of injury to the plaintiff from the related person's injury. Negligence - Breach
Standard of Negligence? 1. The omission to do something which a reasonable [person], guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a reasonable and prudent [person] would not do. See RT 283. 2. What is a reasonable person? (Brief Summary of Standards) i. Someone who considers her/his interests as well as the interests of others before acting. ii. Applicable Standard of Care: 1. Reasonable child standard applies to children. Children must exercise the care that a reasonable child of their
actual age, intelligence, and experience would exercise. a. When children engage in adult activities, courts have applied adult standards. i. A minor operating an automobile, airplane, or powerboat is to be held to the same standard of care as an adult. If the actor is ill or otherwise physically disabled, the standard of conduct which he must conform to avoid being negligent is that of a reasonable man under like disability. a. Heart attacks, temporary dizziness due to fever or nausea, transitory delirium, etc are to be regarded merely as circumstances to be taken into account when determining what a reasonable man should do. No reasonable standard for mental problems (ie. Mental patient who is adult is treated as an adult) Professionals - Majority: Standard of care is that of a reasonable professional in the same or similar community (similar locality rule). Minority: Standard of care of a reasonable professional (national standard). Common Carriers and Inn Keepers: Majority - Held to a higher (utmost) standard of care (slight negligence sufficient). Only passengers and guests are subject to the higher standard of care. Minority - Reasonable person standard of care. Owners and Occupiers: a. No duty to undiscovered trespassers. b. If the owner/occupier is engaged in an activity that injures the person, a reasonable person standard of care applies. The status of the injured party does not matter. 3. If the owner/occupier has a dangerous condition on their land, then the applicable standard of care differs based on the guests status (invitee/licensee). a. Licensee: Defendant is responsible for known dangers.
Invitee: Defendant is responsible for known dangers and unknown dangers they should have known about based on reasonable inspection. Strong modern trend to abolish licensee/invitee classifications for a reasonable person standard. Discovered Trespassers: Defendant is responsible for artificial conditions the defendant knows about. a. Exceptions: a. Open and obvious dangers. b. Attractive Nuisance Doctrine: Duty owed for dangers on the land that might attract children. However, child must show he did not appreciate the danger.
III. Emergency Doctrine 1. A person confronting an emergency not of his or her own making is required to exhibit only an honest exercise of judgment because the decision has to be made under time pressure. i. An increasing number of states are refusing to give the emergency doctrine in negligence cases. They argue that the reasonable person standard is sufficient. IV. Three Distinct Methods of Determining the Appropriate "Standard of Care" 1. Learned Hand Formula: B< PL (Cost/Benefit Test) i. Cost Benefit Balancing Approach ii. B< PL = Negligent; B> PL = not negligent 1. B equals the burden of adequate precautions; 2. P equals the probability of harm; and c. L equals the magnitude of harm or injury 2. Holmes: Foreseeable-Danger Test i. Jurors are asked to decide: a. Was the resulting harm or injury foreseeable? b. Could the harm have been prevented by the exercise of due (i.e. reasonable) care?
ii. Burden of implementing precautions is unimportant, only foreseeability of the injury matters 3. Community Expectations Test i. Jurors are asked to decide: a. What are the prevailing community norms/expectations regarding reasonably prudent (safe) behavior under the circumstances? b. What does your own experience tell you? ii. Burden and foreseeability are not important. Primary focus is what the community expects. Vicarious Liability: The imposition of liability upon one party for a wrong committed by another party 1. Most common form: Respondeat Superior (Scope of Employment rule) i. Respondeat Superior - An employer or principal is liable for the employee's or agents wrongful acts committed within the scope of employment a. If the tort arises outside the scope of employment, the employer does not incur liability, absent special circumstances. b. Within the Scope of Employment? a. Conduct of a servant is within the scope of employment if, but only if: i. It is of the kind of work he is employed to perform ii. It occurs substantially within authorized time and space limits iii. It is actuated, at least in part, by a purpose to serve the master; and iv. If force is intentionally used by the servant against another, and the use of force is not unexpected by the master c. When Should a Master be Liable for the Acts of a Servant? a. When the master intended the conduct or consequences; b. When the master was negligent or reckless; c. When the conduct violated a non-delegable duty of the master;
d. The servant purported to act or speak on behalf of the principle and there was reliance upon apparent authority, or the servant was in completing the tort by the existence of an agency relationship d. Non-delegable duty: A duty the master can delegate to another, but they cannot delegate away the liability. e. Apparent Authority: The authority that a third party reasonably believes an agent has, based on the third party's dealings with the principal. f. Generally, no liability by employers for intentional torts by employees, unless the intentional tort is expected by the master. However, employees who are hired as bouncers/security guards etc are usually expected to use force, therefore, often their intentional torts are often foreseeable and the employers can be held liable. Employee v. Independent Contractor 1. Generally, companies are liable for negligence on the part of employees, but not liable for negligence against independent contractors. 2. Whether one is an employee or independent contractor is often a question of fact for the jury. c. Test: An employee is an agent whose principal controls or has the right to control the manner and means of the agent's performance of the work i. Courts have expanded upon this test to include factors they consider in determining whether an actor is an employee or an independent contractor. Negligence "Per Se" - Any unexcused violation of a statute (particularly one that is designed to promote safety) is negligence as a matter of law. a. Statute must protect the class of persons injured in the action from the type of harm that actually occurred. i. Type of Harm: It is easy to determine the type of harm against which a statute was designed to protect when the statutory purpose can be discerned readily from the language of the statute or from its clear legislative history. Often the statutory purpose is not readily discernible from the statute's
language or legislative history, however. Here judges have great discretion. ii. Plaintiff in Protected Class: Sometimes it is easy for a judge to determine the class of persons a statute was designed to protect, as where legislation is passed to promote worker safety. Sometimes, however, the scope of the protected class is uncertain. Licensing Statutes: Most courts refuse to use licensing statutes as the standard of care because the lack of a license itself does not establish the lack of due care. Approaches of Negligence Per Se i. Generally, violation of applicable statute is conclusive presumption of negligence or negligent as a matter of law ii. Some jurisdictions: apply a rebuttable "presumption" of negligence; 1. D can rebut the presumption by showing s/he acted reasonably iii. Some jurisdictions: violation of a statute is evidence of ordinary negligence. Duty, breach, causation and damages must still be proved. 1. Jury can consider this evidence along with other evidence, but jury doesn't have to find D negligent (even for violating a statute without excuse) Criminal Statutes: Violation of a criminal statute is usually evidence of negligence and not a conclusive presumption of negligence. Special Excuses for Negligence Per Se i. Violation of a statute can be excused in certain circumstances - either through: 1. Legally Cognizable Excuses; or a. Legally Cognizable Excuses i. A party may be excused for violation of a statute a. Three general categories of excuse include: 1. Necessity 2. Incapacity 3. Emergency 2. The Defense of Limited Statutory Purpose a. The Defense of Limited Statutory Purpose
D must show that the P was either not in the class of persons, or did not suffer the type of harm, intended to be protected by the statute. ii. Available "Excuses" Under the Restatement: 1. Incapacity; 2. Lack of knowledge of the need to comply; a. Ex. Broken tail light which you are unaware of is not punishable. You only get a fix-it ticket. 3. Inability to comply 4. Emergency or 5. Compliance poses greater risk than violation a. Ex. Tedla case - If it is more dangerous to walk on the side of the road required by statute, you can walk on the other side. b. Other excuses are possible. Res Ipsa Loquitor (Latin - The thing speaks for itself) - A rule of evidence that permits, but does not compel an inference of negligence under certain circumstances. The P needs to show that more likely than not the defendant's negligence was the cause of the tort. Elements: An injured party (P) must establish: a. That the instrumentality causing the injury was under the exclusive control of the D; b. That the accident is one that would not, in the ordinary course of events, have occurred without negligence on the part of the D; 3. That the accident must not have been due to any voluntary action or contribution on the part of P. a. Applying Res Ipsa Loquitor 1. Permissible Inference of Negligence 2. Evidence of Ordinary Negligence b. Circumstantial Evidence: Res Ipsa allows the use of circumstantial evidence, but the plaintiff still has to show that the defendant had actual (aware of danger) or constructive (assumed due to time/etc) notice of the danger. c. Rationale for Res Ipsa: 1. Res Ipsa is used in cases where circumstantial evidence shows that the defendant was probably negligent or that the defendant has superior knowledge of the actual circumstances of the case.
Medical Malpractice a. Standard of Care: The standard of care to which physicians are held is set by the custom of their profession. The physician must possess and use the knowledge and skill common to members of the profession in good standing. This standard demands of the physician minimal competence. In the medical malpractice context, liability flows from the physician's failure to conform to the profession's customary practice. Conversely, if the defendant doctor adheres to customary practice, she cannot be found to have committed malpractice. 1. Majority: Similar Locality Rule: Reasonable standard of care for a professional in the same or similar locality. 2. Minority/Modern Trend: The appropriate standard of care regarding cases in the medical field is based on a national standard of reasonable care. 3. Specialists are held to a higher standard of care than an ordinary doctor. b. Expert Testimony: In situations where an inference of negligence can be made without the knowledge of an expert, expert testimony is not allowed. However, in situations that are complicated or technical, expert testimony can be allowed. 1. Expert witnesses used in medical malpractice cases to provide jury with information on customary standards of care. 2. Any doctor with knowledge of the procedure acquired through experience, observation, association, or education is competent to testify about the requisite standard of care. In deciding whether to qualify an expert the court should consider a physician¶s resources, practice area, and experience, but no one issue should be determinative. c. Alternate Approaches to the Practice of Medicine: As long as one of the accepted approaches is followed, a doctor is protected from malpractice liability. Further, the relative merits of each approach are irrelevant provided there is an established custom supporting the method employed. Sometimes what constitutes an acceptable method is debatable. Negligence: Causation
Actual Cause: The actual cause of a tort. Actual cause requires that the D's act contributed to producing the P's injury. Two Tests: a. "But For" Causation (Traditional/Majority): The tort would have happened "but for" the defendants action. The "but for" test is one of the tests used to determine actual cause. 1. Generally, P has burden of proof. Standard of proof is a preponderance of the evidence. 2. Exam Tip: Look at what did happen and compare it to what would have happened if D had not been negligent. Would the P have suffered the harm but-for the D's negligence? iii. Establishing Causation through Expert Testimony: States can use either or neither test. Federal courts have to use the Daubert test. 1. Frye Test: Traditionally, the dominant approach to admissibility, as the court notes, had been the Frye test, requiring that scientific evidence be based on techniques generally regarded as reliable in the scientific community. 2. Daubert Test (Federal Rule): The trial judge must be satisfied that the scientific knowledge is: 1) Helpful to the jury and 2) derived from a decent scientific method (based on "good grounds"). A trial judge is a gatekeeper who decides if the expert's testimony should be admitted. The Supreme Court gives us facts to take into account: a. Daubert Rule (4 factors): 1) Whether the theory or technique is generally accepted, 2) whether the theory has been subject to peer review, 3) whether the theory can be tested, and 4) whether the error rate is acceptable. iv. Market Share Liability Cases: General rule is that plaintiff must identify a specific defendant whose actions caused the injury. However, where identification of the manufacturer of a drug that injures a plaintiff is impossible, New York courts will apply a market share theory, using a national market, to determine liability and apportionment of damages (see Hymowitz). 1. Court adopts the CA approach established in Sindell and adopts the national market share approach (liability for percent of market manufacturer
controlled). Furthermore, they made the liability several only per the Brown decision in CA. 2. The court basically removes the causation requirement for the specific negligence claim. 3. Holding in Hymowitz: In DES cases (or drug manufacturer liability cases), a manufacturer is liable for damages to the victim based on a national market share theory, and the manufacturer's liability is several only. 4. Toxic Harm: (Pgs 392-395) Reason for alternative forms of causation/liability for toxic harm cases are similar to the reasons for the market share theory being used in Hymowitz. a. Problems of Identification b. Problems of Boundaries c. Problems of Source b. Substantial Factor Test (Supplementary Test): "But for" causation is required before substantial factor exists. When two independent forces are each capable of causing the harm, the but-for test sometimes fails to reach the proper outcome. Useful test for cases with multiple sufficient causes (ex. Two fires started by two independent arsonists meet in the middle and burns the victims house). i. Use this test when multiple defendants or medical malpractice cases. ii. The test requires that D materially contributed to the P's injury. 1. Ask: Was the D's act a "material or substantial element" in causing P's harm. 2. Often viewed as a less demanding test of causation. 3. Increasingly used in Medical Malpractice cases. 4. Minority/supplemental approach. iii. Exam Tips: Alternative test. Sometimes supplements "but for" test while at other times it replaces the test. Courts usually apply this test when the "but for" test fails to show causation. For exam purposes, use both tests. Proximate Cause: The foreseeable or legal cause. A way of limiting liability when a superseding cause removes legal liability from the defendant. Note: Third Restatement gets rid of proximate cause and
adds "scope of liability". However, most courts still use proximate cause. a. Two Tests: To limit causation based on proximate cause. i. Foreseeability Test: 1. The D's negligence is a proximate cause of the P's harm if causing that harm was a foreseeable result of acting as the D did. Consider intervening and superseding causes. ii. Harm Within the Risk Test: 1. Negligent conduct unreasonably increases the risk of harm. a. Is this the type of harm that the negligent conduct usually results in? 2. Difference Between the Tests: a. Foreseeability test is whether a reasonable person would have known of the risk of harm. Harm within the risk test is whether the harm is of a type to be expected from the activity. b. Four Types of Cases / Categories: In these categories, something unforeseeable happens, and the question is should the jury impose liability in these situations. How the facts get characterized (i.e. which category a P's case will get lumped into) will determine the rule. i. Idiosyncratic situation: Foreseeable Plaintiff / Unforeseeable extent of harm 1. Proximate causation can exist (see Eggshell Plaintiff Rule). Depends on fact pattern. ii. Secondary, "Add-on" Harm / Unforeseeable manner of harm 1. Manner of harm does not have to be foreseeable. iii. Unexpected Type of Harm: Unexpected harm to an expected victim 1. Most courts allow jury to decide these cases in a case by case basis. iv. Unforeseeable Plaintiff 1. Plaintiff usually needs to be foreseeable. However, note that per the Cardozo view, a foreseeable plaintiff must be within the zone of danger while per the Andrews view (minority) any person harmed in the whole world is a foreseeable plaintiff (See Palsgraf).
Takeaway: Foreseeability is important for the type of harm and the foreseeability of the plaintiff. Foreseeability is not important with regard to the extent or manner of harm. c. Rules: i. Eggshell Plaintiff Rule (Applies to Damages as well): A tortfeasor whose act, superimposed upon a prior latent condition, results in an injury may be liable in damages for the full disability. This rule deems the injury, and not the dormant condition, the proximate cause of he harm. ii. Direct Consequences Rule: Defendant responsible for all harm caused from the direct consequences of the defendant's actions (established in Polemis - Pg 406) iii. Foreseeable Consequences Rule: No proximate cause unless defendant anticipated the type of harm that occurred, and not just that some damage occurred. 1. Wagon Mound 1 (Pg 409 - Overseas Tankship): a. Direct consequences test no longer applies and foreseeable consequences test applied. 2. Wagon Mound II (Pg 414, Note 10): a. Type of damage was foreseeable; therefore, defendant's negligent conduct was the proximate cause of damage to the ships. b. Note: Wagon Mound I and II came out differently due to lawyering. Essentially, at this time, contributory negligence was a complete bar to recovery. iv. Intervening and Superseding Causes: 1. Intervening: Consists of acts, omissions, or other forces that occur after the tortious conduct of the actor and that are other than the background causes that ordinarily exist. a. The Following are Likely Intervening Causes: i. Negligence of Rescuers ii. Subsequent Medical Malpractice (other than gross negligence, wanton/reckless/etc) iii. Subsequent Accident a. Defendant is liable to the plaintiff for damages sustained in a subsequent accident as long as the v.
original injury was a substantial factor in causing the subsequent injury. 2. Superseding: An unforeseeable intervening act that is deemed sufficient to prevent liability for an actor whose tortious conduct was a factual cause of the harm. a. The superseding act may be tortious or entirely innocent. b. The Following are Likely Superseding Causes: i. Acts of God ii. Criminal Acts of Third Persons iii. Intentional Torts of Third Persons iv. Extraordinary Forms of Negligent Conduct (gross negligence, recklessness, etc) Loss of Chance Cases: Usually involves a plaintiff suing a doctor for the loss of chance of recovery. The plaintiff needs to establish that the doctor's negligence obliterated or reduced the odds of recovery that existed before the malpractice. a. Elements of a lost chance claim are identical to negligence claims (duty, breach, causation, and damages). Standard of proof is "reasonable degree of medical certainty" which translates to more likely than not. i. Remember that loss of chance is a reduction in chance of recovery and not a reduction in standard of proof. b. Loss of chance differs from medical malpractice actions only in the nature of the harm for which relief is sought. The loss or damages is not for the injury itself, but the lost chance of avoiding the injury. c. Plaintiff will almost always establish evidence through expert testimony (since laypersons will not understand or be able to analyze the intricacies of the cases). d. Most courts give proportional liability for cases where the loss of chance is under 50% (some reject liability when loss of chance is under 50%). Furthermore, most courts award full liability when loss of chance is 50% or more (some give proportional). Joint and Several Liability (J&S): a. J&S liability only applies to joint (concerted action) tortfeasors who cause a single indivisible injury to the plaintiff.
J&S liability does not apply where the Ds caused separate damages. Each tortfeasor is liable to the P for the full amount of the P's damages. Common Law Rule: Traditionally, the defendants were held equally responsible among themselves. That is, if one defendant paid the entire sum to the plaintiff, he could recover money from the other defendants in a suit (burden of recovering from codefendants is on the defendant). If all defendants were solvent, the payments were divided evenly between them, even if one defendant had a higher comparative negligence. Modern Rule: i. First, many states have proportioned defendant liability based on fault (comparative negligence; apportionment of fault determined by trier of fact). Essentially, if D1 was held 75% at fault and D2 was held 25% at fault for the harm suffered, the victim could still get full damages from either defendant, but would ultimately share the loss in a 75%-25% ratio if both were solvent. Intentional Torts / Negligent Mixed Cases: Restatement Rule - A defendant who is negligent because of a failure to protect the plaintiff from the specific risk of an intentional tort is jointly and severally liable. i. Some states refuse to allocate liability between the two types of cases while other states do. J&S v. Several Liability: Several liability requires defendant to pay only the amount they owe. Plaintiff can only recover the amount apportioned to the defendant from the defendant. For example, if person A is 50% liable and person B is 20% liable only 50% can be recovered from person A and 20% from person B. Causation Exception :Two or More Negligent Defendants (See Summers v. Tice): If two defendants are negligent and damage is caused such that only one or the other would be liable, both defendants will be jointly and severally liable for the damage if the plaintiff is unable to show which defendant in fact caused the injury. The burden proof for causation is shifted from the plaintiff to the defendants because the defendants are better positioned defend themselves (defendants have the evidence). i. The traditional joint tortfeasors "in concert" requirement is not required with two or more negligent defendants acting
not in concert. However, if it is unknown whether one of the two defendants is negligent, the causation exception does not apply. Negligence: Defenses XXVI. Contributory Negligence: Failure of the P to exercise reasonable care to protect himself or his property from the risk of harm. Affirmative defense with 4 elements that mirror the tort of negligence (duty, breach, causation, and damages). a. General Rule: Traditionally/Modern Minority, any negligence by P, completely barred P's recovery. b. Exceptions: Defense not allowed in the following: i. The Safety Statute Exception: When the D's negligence consisted of a breach of a statute specifically to protect a class of persons unable to protect themselves against the D's negligence, the contributory negligence of a person in the class does not bar recovery. ii. The Doctrine of Last Clear Chance: If the negligent defendant had the last clear chance to avoid harming the P, then the P's contributory negligence would not serve as a bar to recovery (clear chance = not hidden danger/etc). 1. Helpless Peril: 2. Plaintiff Oblivious of Peril iii. The Jury Question / General Verdict: 1. Whether the P was negligent was a jury question. a. This practice served as a way of minimizing the harsh effects of contributory negligence. iv. The Greater Degree of Blame Exception: Virtually all courts decided that contributory negligence was a defense only in cases of negligence (ie. not applicable for reckless or intentional torts) 1. When the D committed an Intentional Tort 2. When D's conduct is more blameworthy than "mere" negligence (ie. at least gross negligence, wanton/willful conduct/etc). Comparative Negligence (Modern Majority): a. The negligence of the P does not necessarily bar recovery but reduces P's recovery "in proportion to the amount of negligence attributed to him."
b. Comparative negligence (or comparative fault) takes two forms: i. Pure Comparative Negligence: 1. Never a complete bar to recovery. If P was 99% at fault and D was 1% at fault, P can recover 1% of the damages. ii. Modified Comparative Negligence: Two types - "Not as great as" and "not greater than". The former requires P's fault to be less than 50% while the latter requires P's fault to be less than or equal to 50%. 1. If P is found to be more negligent than the D, comparative negligence does not apply and the P's contributory negligence is a complete bar to P's recovery. 2. If the P is found to be "as negligent" (but not greater than the D) as D then P recovers up to one-half of his/her damages. Assumption of the Risk: Plaintiff knowingly (subjective) and voluntarily taking on the risk (Exam tip: Make sure you discuss the knowing and voluntary requirements). a. "Volenti non fit injuria": That to which a person assents is not deemed in law an injury. b. Express Assumption of the Risk (Express Agreements): Needs to be an agreement in writing that is sufficiently clear. i. General Rule: Express agreements to assume a risk, even if the risk is negligently created, are usually enforced in courts. ii. Exceptions: 1. The consent to accept the risk must be voluntary. a. Compare the bargaining power between the parties. b. Service providers cannot condition service on the participant's acceptance of the risk of injury. 2. The consent to accept the risk must be knowing a. P must clearly consent to the specific risk that led to P's injury. b. Contract clauses must be clear in stating the risks that the participant is taking on. c. Contract clauses are typically construed against the drafter. 3. Public Policy Exception (even if consent knowing/voluntary)
a. Court can reject exculpatory agreement if the issue is one of public interest. For instance in Dalury the court claims that ski resorts/skiing is an activity of public interest because thousands of people ski at the resort. Furthermore, the court argues that due to public policy, the exculpatory agreement is unenforceable. 4. Gross Negligence and Recklessness can never be signed away in an Express Agreement. 5. Family Member: a. Courts are split on whether a spouse can sue after the other spouse signs an express exculpatory agreement. b. Modern trend: Children cannot sue if parents sign exculpatory agreement. 6. Exculpatory Agreement must be unambiguously clear (read in favor of the draftee). 7. Signs are generally not a binding express agreement unless specifically pointed out to the other party. c. Implied Assumption of Risk (Implied Agreements): When participating in some inherently dangerous activities, assumption of the risk is implied. Modernly: Implied agreements do not have the same weight they did before because of comparative negligence. i. Traditionally two types: 1. Implied Primary Assumption of the Risk; and a. A subset of Contributory Negligence. Plaintiff's negligence is a complete bar to recovery. Plaintiff knowingly and voluntarily assumes the risk, and the defendant did not create the risk because the activity was inherently dangerous. 2. Implied Secondary Assumption of the Risk a. A subset of Comparative Negligence. Defendant is negligent and created the risk. Plaintiff is aware of the risk and proceeds to engage in the activity. Plaintiff is injured as a result. Damages: (Also See Eggshell Plaintiff Rule, and Joint and Several Liability) a. Damage Caps: Many states have limited damages that a person can receive for pain and suffering (usually no limit on economic
damages). There is some controversy as to whether the damage caps should be applied before or after reducing the recovery based on comparative negligence. b. Avoidable Consequences Doctrine: Even if the accident was entirely the defendant's fault, the plaintiff's recovery might be reduced to the extent he failed to exercise due care to mitigate the harm done. Basically, plaintiff must take steps to mitigate damages after the initial injury. i. Anticipatory Avoidable Consequences: Most courts do not allow such evidence based on the violation of a criminal statute. However, a minority of the courts allow such evidence if a criminal statute has been violated. Strict Liability XXX. Strict Liability: Liability without fault. a. Definition: Liability that does not depend on actual negligence or intent to harm, but that is based on a breach of an absolute duty to make something safe. i. However, not absolute liability which is liability regardless of conditions. b. Abnormally Dangerous Activities: Courts impose strict liability for abnormally dangerous activities. i. RT (2nd) 520 Six Factor Test (Need to know these) 1. High Degree of risk of harm 2. Likelihood of great harm 3. Inability to eliminate risk 4. Activity not a matter of common usage 5. Inappropriate location of activity 6. Value to community outweighed by danger ii. Traditionally Abnormally Dangerous: 1. Blasting Operations 2. Operation of Hazardous Waste Disposal Sites 3. Fireworks Displays 4. Storage of Large Quantities of Water iii. Negligence is about conduct. Strict liability is about activities. 1. Note: In general courts will not impose strict liability if it is possible to render an activity safe through due care. Strict liability can apply if the activity cannot be
made safe even with due care. Abnormally dangerous activities are activities that cannot be made safer through due care. c. Strict Liability Roadmap: i. Review the RT 520 Six Factor Test: Is the activity abnormally dangerous? ii. Establish a Causal Link: Is the type of harm foreseeable and did it result in the injury? iii. Damages: Was the plaintiff injured? iv. Defenses: 1. Assumption of the Risk Defense 2. Some jurisdictions allow comparative negligence Product Liability: Duty to reasonably foreseeable plaintiffs. Only ask the question: Is the product defective. Liability without fault, so we don't look at human actions (ie. customs/standards in industry are not important)." a. History of Product Liability: i. History 1. No general law of product liability prior to 20th century. 2. Four stages of development: a. Contract Privity: i. Before: K law governs injuries from defective products ii. Plaintiffs failing to show privity of contract often barred from recovery. a. Exception: privity requirement is eliminated when P's injuries are caused by "imminently" or "inherently" dangerous product. iii. Also, caveat emptor (let the buyer beware) iv. Consider chain of distribution: a. Components parts maker -> manufacturer -> distributor -> retailer -> purchaser, b. Early privity rules made recovery against "remote sellers" impossible. b. Negligence c. Warranty (See section on Warranty)
d. Modern Approach: Strict Liability for Defective Products b. What is a Product? i. Animals: Maybe. Depends on jurisdiction ii. Blood and Human Tissue: Not a product iii. Electricity: Most courts call it a product iv. Information: Not a product v. Raw Materials: Depends vi. Real Estate: Depends on jurisdiction c. Strict Liability: How Are Products Defective? Three Types: i. Defective in Manufacturing: 1. Was the product manufactured the way it was designed? 2. Elements: P Must Establish: a. A defect existed; i. Proof of Defect, P must show: a. Defendant manufactured the defective product b. The product was defective and the plaintiff was injured as a result; and 3. The defect was present at the time of sale. b. The manufacturer knew or should have known of the risk of harm (from the defect). The defect made the product unreasonably dangerous; and c. The defect caused the P's harm. 3. Conclusive Presumption of Negligence: When elements are met, strict liability is applied. 4. Manufacturing defect is a defect in a single unit. Design defect is a flaw in the design of the product that makes all units defective. ii. Defective in Design: Defect in the designing stage of the product. Usually involves the failure to design a safety feature. 1. Two Tests: Most jurisdictions use an either or test (ie. failure of either test results in a design defect). Some jurisdictions pick a specific test. a. Consumer Expectations Test: i. A product is unreasonably dangerous if it is "dangerous to an extent beyond that
which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics." b. Risk-Utility Test: (Consider both requirements below) i. Separate Question: Reasonable Alternative Design (RAD)? 1. Alternate design of the same product. Contrast to factor 3 below which deals with a completely different substitute product. ii. Consider Seven Factors: (Knowing all factors will help, but not required) 1. Usefulness of product (utility to user and public); 2. Safety aspects (likelihood of causing harm); 3. Availability of substitute product; 4. Manufacturer's ability to eliminate risk while maintaining utility; 5. User's ability to avoid danger; 6. General public knowledge of obvious (dangerous) condition; and 7. Feasibility of (manufacturer) spreading loss (via price hike or insurance). 2. If product is defectively designed, the application of strict liability or negligence varies by jurisdiction. Warning Defects: When adequate warning is given by the manufacturer, generally the manufacturer is not liable. 1. Elements: Note the similarity to manufacturing defect elements. a. A warning defect existed (either no warning, or inadequate warning or instructions); b. The manufacturer knew, or should have known of the risk of harm; and c. The warning or instructions defect caused the P harm.
2. Heeding Presumption: Party responsible (defendant) for the inadequate warning must show the user would not have heeded an adequate warning. a. If the defendant is able to show that the plaintiff would not have heeded an adequate warning, there is no liability to the defendant. However, the burden of proof is on the defendant. There is a rebuttable presumption that the plaintiff would have heeded the warning. 3. Misuse: Misuse by the plaintiff is not a complete defense if the misuse or unintended use was reasonably foreseeable. 4. A manufacturer will not be held liable for failure to warn or provide instructions about risks that were not reasonably foreseeable (knew or should have known) at the time of sale or could not have been discovered by way of reasonable testing prior to marketing the product 5. Disclaimers that waive liability for purely commercial losses are usually upheld. However, disclaimers for personal injuries are not upheld since Henningsen for public policy reasons. a. Only applies to seller's and manufacturers of new products. 6. If the plaintiff is aware of and understands the risk, the failure to warn does not make the manufacturer liable. a. Ex. Open and Obvious Dangers b. Ex. Dangers the plaintiff subjectively knows about. 7. Doctrines: a. State of the Art Evidence: i. Refers to the existing level of technological expertise and scientific knowledge relevant to a particular industry at the time a product is designed. 1. Defense is usually available in failure to warn cases and design defect cases, but is not available in manufacturing defect cases.
Some courts say state of the art defense is not a defense to strict liability, but most say state of the art evidence is relevant. Patent or Obvious Hazard Rule: i. There is no duty to warn of an obvious or "patent" dangers or risks that are generally known. ii. Rule is recognized in most states, but not accepted in all. Sophisticated User Rule: i. In some cases, a manufacturer will have no duty to warn where the user of the product has certain expertise. 1. Ex. No duty to warn utility worker of the dangers of electric shock on the job. Learned Intermediary Rule: i. Most courts hold that warnings and instructions should be provided to a physician, who is a "learned intermediary" between a drug company and a patient. 1. Exception: This does not apply where the manufacturer is aware that there will be no medical provider to advise, or where patient takes active role in selection of product. 1. Ex. Oral contraceptives. Post Sale Duty to Warn: i. Many courts will impose a duty on the manufacturer to provide "post sale" warnings about risks discovered after the sale. ii. Courts use a 4 factor balancing test, weighing: 1. The obviousness of the danger; 2. The seriousness of the danger;
The burden on the manufacturer in having to locate those who should be warned; and d. The likelihood of harm. d. Miscellaneous Rules (Apply to All Product Liability Cases): i. Causation: Substantial factor test is sufficient. P must prove that a defect, attributable to D's control caused the injury. The defect must be a substantial factor in causing the injury. ii. Occasional Seller Rule: An occasional seller who does not hold himself out as having any knowledge or skill in the commercial sense will not be subject to strict liability. 1. Ex. Gym that sells its used equipment on a one time basis would not be strictly liable to damages to the buyer due to a defect in the product. 2. Possibly Flea Market sellers, Craigslist, E-bay, Auction House, etc. iii. Liability of Retailers, Wholesalers, and Distributors: Most courts will apply strict liability to sellers in the chain of distribution. 1. Rationale: Compensation for injured victims and to encourage manufactures/retailers to increase standards. iv. Component Manufacturer Rule: The maker of a component part, but not subject to a substantial part of the manufacturing process, is only subject to strict liability if there is a defect in that particular component. 1. The component manufacturer may be strictly liable if he plays a substantial part in the integration of the individual component into the defective product. v. Indemnity and Contribution: 1. Retailer is entitled to indemnity or full restitution from manufacturer, unless the retailer was also negligent. 2. Manufacturer's are entitled to indemnity from component makers, unless the manufacturer is also negligent. 3. If both parties are negligent, comparative fault applies. vi. Successor Corporations: A successor company is usually held liable if it: 1. Agreed to assume liability, OR 2. The transfer was fraudulent, OR 3. The two corporations merged, OR
4. The successor company was essentially a continuation of the original company. vii. Sellers of Real Property: Sellers of real property may be held liable for those who purchase the house (or enter the land), for harm resulting from defects that the seller does not disclose. viii. Lessors (landlord) of Real Property: Most jurisdictions (including CA), apply negligence rather than strict liability for actions brought against the lessors. 1. Contrast Louisiana which applies strict liability by statute to landlords for injuries caused by defects. ix. Second v. Third Restatement Approach (RT 402): The second restatement requires the product to be unreasonably dangerous while the third restatement drops the unreasonably dangerous requirement. Consider these in the analysis. Both restatements authorize recovery: 1. By a user or consumer 2. From a seller 3. Who is engaged in the business of selling the product 4. For physical harm 5. Caused by a defective product 6. That is unreasonably dangerous (third restatement drops this requirement) Defenses for Strict Liability: a. Product Alteration: i. When there has been an unforeseeable alteration of the product by someone in the chain of distribution or a third person, courts will usually relieve the original manufacturer of liability. b. Plaintiff's Fault: i. Contributory Negligence: 1. Failure to Discover Defect 2. Misuse or Abnormal Use of Product 3. Independent Negligence ii. Comparative Fault: Broader than comparative negligence. 1. Note: A customer has no duty to discover or guard against product defect, but a customer's conduct other than the mere failure to discover or guard against a product defect is subject to comparative responsibility. iii. Assumption of the Risk:
1. Voluntarily / Knowingly 2. Unreasonably What is NOT covered by Strict Liability: a. Courts do not impose strict liability on the following parties for defective products: i. Employers ii. Government Contractors iii. Installers and Repairers iv. Premise Owners v. Service Providers 1. Ex. Can't sue doctor under a strict liability theory. Warranty: A separate cause of action (like negligence or strict liability). a. Definition: A promise or a guarantee. i. Exam Tip: Bring it up as a separate cause of action. b. When a warranty is breached an injured party can sue for: i. Losses that result from the breach; and ii. Consequential injuries c. Hybrid of Tort and Contract Law: 3 types: i. Express: 1. This is true strict liability: if the promise is specific, has been relied on, and breach causes injury, D is liable. Reasonable care is not a defense. 2. Express warranties are limited: a. They only apply when specific representations are made to the buyer about the product feature that caused the injury; b. Statutory notice provisions often require the buyer to notify the seller of a breach within a short time to be barred from recovering; c. P must claim that a specific feature that was subject to the warranty caused the injury. ii. Implied Warranty of Merchantability: Arise by operation of law, and are not based on any representations by the seller. 1. No implied warranties for services (only for products). 2. Commercial seller warrants that product is reasonably safe. Product is warranted for the ordinary purpose of the item. iii. Typically limited by privity requirement since based on contract.
Reasonable care is no defense. Buyer must show that reliance on the warranty caused harm. vi. Elements: P must show a. D was a dealer of goods of that kind; b. D sold the goods c. The goods were not fit for the ordinary purposes for which they were sold; and d. P suffered personal injury as a result of P's reliance on their fitness for that purpose. iii. Implied Warranty of Fitness for a Particular Purpose: i. You ask store for an item to seal your deck. Employee gives you an item to seal your deck. It is implied that the product fit for its particular purpose. Warranty applies to the product for the specific purpose. ii. Reasonable care is not a defense. iii. Buyer must show that reliance on the warranty caused harm. iv. Elements: P must show: a. D was a dealer of goods of that kind b. D sold the gods; c. D knows that P is purchasing the goods for a particular purpose, or P is relying upon D's skill or judgment to furnish appropriate goods; and d. P suffered personal injury as a result of P's reliance on their fitness for that purpose. iv. Builders of Real Property (Applies only to Warranty): Three Approaches: i. Implied Warranty of Habitability: An implied warranty of habitability is held to run from the builder or vendor of a new home to the immediate buyer. ii. Caveat Emptor: Other jurisdictions do not make builders liable based on the principle of "let the buyer beware or Caveat Emptor." 3. Extended Warranty of Habitability: A few jurisdictions extend the warranty of habitability to third party occupants d. Warranty Limitations: i. The warranty can be disclaimed, if done clearly.
But after Henningsen v. Bloomfield Motors, Inc. (page 560, note 4), warranties for injuries cannot be disclaimed due to public policy reasons. Applies to Strict Liability as well. iii. Various states have different alternatives for the types of Ps that can recover for breach of an implied warranty; and iv. Warranty claim still requires timely notice of breach to the seller. v. Exam Tip: Always bring up the Henningsen case. e. Warranty Defenses: i. Contributory Negligence ii. Comparative Negligence iii. Assumption of the Risk iv. Disclaimer 1. But see limitations for disclaimers regarding personal injuries. 2. Sale "As Is": No liability other than for personal injuries. v. Failure to Notify Seller: Buyer must inform seller of the breach of warranty within a short time period.
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