TORTS OUTLINE FINAL

Privacy We look at Prossers 4 branches Know the difference between Defamation and Privacy 1. False Light – (elements) 1. Publicity i. The information must get out to the public(gossip is not enough) more than said to 1 or a few whereas def is publication(don’t need the public) 2. Must represent the Plaintiff in a false light 3. The false light must be highly objectionable 4. The fault must be on the defendant i. Pre-gertz plaintiff could recover for defamation by showing knowledge or disregard, gertz said that the common person only needs to show negligence ii. (Cantrell)- she prevailed on false light by showing knowledge and disregard iii. no decision on fault weather they must show negligence or constitutional malice iv. Time v hill 1st false light case to supreme 1. made def show knowledge or disregard for the defendants-this was pre Gertz v. Cantrell 1. they already establish constitutional malice so did not have to decided private and public\ vi. there is a split as to how the supreme court will private/ public person what they need for false light constitutional malice or no vii. some courts don’t recognize this if there is no definition then we won’t hear it (Levertington) o - quintessential Girl is in a car accident and is helped up by someone 1 year later a picture of this is put in with the caption they asked to be killed a article about careless pedestrians o Is it defamatory to say to a 7 year old that they are careless –NO does not seem like defamation, the communication dose not harm her reputation o How about False light – Concerned with putting you in front of the public other than as you are must be offensive. defamation protects reputation , Privacy protects your feelings o They found false light in this situation (Flying pig case) P 962 A woman’s job was to catch a pig from a diving board o Editor of hustler liked it so much that he wanted to put it into hustler and it was published o The woman sued (she was a good girl) o She is in a convinces store and a man recognizes her o Picture is not airbrushed and no bad caption o IS IT FALSE LIGHT??? o Her false light theory was that people with think she is the type of person that would associate with this type of magazines o SHE WON (Falwell v. Hustler)- intentional infliction of emotional distress • He loses on defamation and false light because the ad can not be understood describing actual facts • When the party is seeking for IIED is a public figure and there is a media def and there is a publication. The P must show there was a falsity and constitutional malice (Cantrell) o The paper said she had an expressionless face, but she was not there, this was on the second interview. The def was portrayed as poverty stricken and so on.

o o o o 2.

Could this story be ok for a liable action: is this something that would harm their reputation. This may not rise to the level of defamation. This case is based mainly on the theory of false light The trial court said that she had to show constitutional malice the supreme skirted the bigger question and said she showed constitutional malice Maybe a private Plaintiff could collect on a showing of mere negligence????

Publication of a Private Fact 1. Need publicity not just publication of a private matter i. Must reach public 2. Highly offensive to a ordinary person 3. Not of legitimate public concern hard to prove i. Reasons for allowing publication 1. is it the truth 2. people should know facts about who they are going to emulate 3. Rape victim – it encourages people to come forth • Very few private maters Is this constitutional – defense is you can not punish us for publicizing a private matter, this has never been decided the court usually find some legitimate public interest (Cox Broadcasting v Cohn) • Statue if rape victim is under 17 you can’t say their name. The name got put in the record it was published judge said if it is part of the public record it can be published and is not a private fact • Sine this decision all cases dealing with a fact on a public record even when there is a state statue preventing publication of the fact the court has found for the person publishing (Brisko) • Over time stuff on the record can be private (Sidious case) • Genius prodigy disappeared a reporter found the plaintiff and reported on him. • The court held it was a ligament public concern (Sipple case) • 2 assignation attempts on ford. Sipple saves fords life he was gay and the media told everyone. The court held that there was a legitimate public concern BASICALLY EVERYTHING IS PUBLIC CONCERN-except maybe POOP, HEALTH, SEX Appropriation Plaintiff appropriates the D name or likeness for their own benefit Does not have to be offensive Also biographies are protect • Privacy is meant to protect your feeling a lot of jur have split this to appropriation(feelings hurt), and the right of publicity(protects value of name persona so on)- this can go one beyond death, and is transferable • You need to know who plaintiff is o there was an add of a woman running through a forest and it showed here in a bad light she tried to collect but you would not know who she was by looking at the add so not appropriation • NO SURVIVIAL ACTIONS for privacy o ends with the death of the plaintiff. That is why many states have recognized the right of publicity. In Cali death plus 50 years o Lisa Presly assigned the right to market Elvis’s name for 500,000,000 • Plastic surgery not enough

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Changing name is not enough but if you use the name to get something then it is If it is an add about you to sell something then no, but if it is a story about you the ok Today name and likeness is probably not. Vana white and the robot turning letters. Be cautious, the media uses pictures with and with out permission you do not have a causes of action for this particular use, but can use them as an advertisement

3.

Intrusion into Seclusion 1. There must be an intrusion into solitude or private affairs 2. Highly offensive i. This tort does not require trespass 3. don’t need to publicize or discover

couple finds a bug under there bed and they sue for intrusion into seclusion if you look though someone’s window after climbing a tree and see something private the intrusion must be into someone’s private affairs or (solitude)- this is expanding quickly maybe unwanted sexual advances. • Generally no expectation in public Jackie “o” sued the father of the paparazzi she got an injunction to keep him off of a certain part of 5th avenue and 6 feet from O and here kids The Nadder case the court found that even in public you have some expectation of privacy.(someone looking over his should at all times). Some phyical space even in public Being expanded to sexual harassment , unwanted question leering and remarks represents an intrusion into the plaintiff’s solitude. • Probably will see a lot of litigation in investigative reporting (Person v Dodd) • • They did not actually intrude so no liability The tort does not require publication They also tried to sue on publication of private facts o They did not find this because it was a ligament public concern Court did not hold publishers liable because the publishers did not intrude and the info was not private

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(Peep hole) • Tort was complete just by there being a hole NEGLIGENCE: • Elements o Duty o Breach • Elements for a of action for negligence(for someone to be liable you need) o Duty o Breach o Causation  Factual  Legal o Damages • • • Not all conduct which is the factual cause a harm = neg The D must expose the P to an unreasonable foreseeable risk Forcibility- probability

Unreasonable ORPP

(Lubitiz v Wells) • Suing the father for negligence the father left the club out and his kid accidentally hid the other kid with the golf club. o He is arguing this to the judge as a matter of law. The leaving the club out does not constitute negligence as a matter of law. • Not battery because no intent but neg was alleged on the child • If it was a shotgun it would be at lease a jury question • Found for the father that he was not neg (Blyth v. Birmingham) • Water from main goes into the def house the P sued the installer claiming that the installer was negligent 25 years before when they installed the pipes, --did not put the pipes far enough down-Trial level found for the plaintiff • Def wins on the appeal as a matter of law. Uses the frost of 1855 and says it was a lot colder than other years, and it is unforeseeable a reasonable prudent person could not have anticipated this. This was worse than what ordinarily occurs (Pt) YOU MUST ANTICIPATE THE AVERAGE CIRCUMSTANCES -Court probably means ordinary circumstances (Gulf Refining) • The drum not cared for in 25 yeas was in bad repair and when the plaintiff removed the cap it sparked and caused a fire. • Def says o The reasonable person takes into account the ordinary circumstance. This is clearly not ordinary never happened before so how can Gulf be held liable. o ARGUMENT-The risks should be probable- this is not true the risks just must be foreseeable. o You must know of the possibility that something can happen how serious and look at the chance it will happen. If the something is serious you are more likely to be found neg. o A foreseeable risk does not have to be probably just one that a reasonable person would consider. (Chicago v. Krayenbrul) • The RR has a rule that says the turntable is supposed to be locked at all time it is not always locked, A young girl 4 years old is injured and sues. The girls case is that because of the danger of the turntable it should have been locked and guarded • Is the railroads conduct reasonable, are there actions ordinary, is this a foreseeable risk. o Clearly foreseeable because the def had a rule to lock the turntable o You also must look at the forcibility and the serious of the injury • The attorney for the RR says that the general benefit outweighs the occasional infliction of injury. RR is suggesting that this will cause the RR to stop if they have to reduce the risk to 0 • The court says that they only have to reduce the risk to a reasonable amount and a padlock would have done this • Locking the turntable may impede efficiency but that is an ok trade off. The cost of taking precautions a pad lock is less than what we are trying to avoid • The RR was not neg because injuries and loss in life is to insignificant in the grand scheme of things • No unreasonable risk—an unreasonable risk is where your cost is less than the worst possible harm.

(Davison v Snohomish) • Plaintiff is suing the county because they went off an embankment the guardrail didn’t hold wood guard rail. If you have better vision that is the standard you are held to HOW about children • Some Jur it would be unfair to hold a child to the adult standard so they look age.hold to adult standard . but when the child is the plaintiff and def is claiming contributory to look at his age maturity and so on of the child • New theory the adult activity standard. but that ORPP would not drive while drunk • Orpp is not always right but always right but always reasonable • He is a myth and can not be personalized if he is personalized it is a mistrial. His theory is that they guard rail was not strong enough • The municipality said it would have been to expensive. if you were drunk the court will not look at you dove reasonably for being drunk. maturity and so on • Other Jur have said with a child actor o 0-7(child not capable of neg) o 7-14 (reputable presumption child is not capable of neg o 14-adult(reputable presumption child is capable of neg) • Another theory not yet adopted but scholars have written(when the child actor is the def and has inflicted harm hold the child to an adult standard. Injury = L Burden = B • Liability depends on weather B<L*P If B is less then LP = liable / If B is more then LP= not ORPP • Objective Ordinary reasonable prudent person. As a juror you can not put yourself in the shoes of Orpp • there are certain things ORPP knows and even if our actor can’t know them they are held to a standard of knowing them • If Orpp is confronted with something new he would take the necessary steps to learn about the new thing • Orpp can be a man or a woman and there can be a difference between them o Tribal people who know nothing who be held to the standard of ORP in the community • Orpp does not follow all customs o Must show there is a custom and that it is reasonable o Customs are probative not determinative o Ie. full name is ORPP under the circumstances o The court will look at the legally relevant circumstance. Carroll towing • Negligence can be found in a formula we look at the chance something will happen the injury and then compare it to the cost • P=Probibility. but it would have been to great of a burden to make all guardrail strong enough compared to the benefit. to make all guard rails strong enough to hold • Court found: It is foreseeable that a car could go through guardrail. and Inherently dangerous standard.. Orpp would not jaywalk even if everyone did • We say ORPP with know certainty things in the community • ORPP knows and understand certain facts • Customs might show that most people engage in it and maybe a good idea Superior endowments • Must use them ie.

.==Orpp understands the significant (Trimarco) • Def is injured when glass shatters in his shower. tire was bare. He is claiming that the Landlord is negligent for not putting shatter proof glass in his shower. Def appeals says ORPP should be subjective not reasonable prudent person but instead reasonable prudent person for him. plaintiff sues the defendant for not changing his tires.o Hunting might be an adult activity but it probably is inherently dangerous • Another Jur When child is P child standard. IT must beonly a few Juristions) o Unexpected o your mental capacity must be interfered with such that you no longer ability to act reasonable o Mental illness or hallucination must affect a persons ability to understand and appreciate the duty that rests on her How about retarded people • In (tate) the court refused to allow consideration that the defendant was retarded. • ORPP is expected to know some thinks: • Gravity • Paper will ignite from a match (Delair v. it was near the property line and he was warned 5 time that it was unsafe and could catch fire. he lost his cottage. Court disagrees and affirms the trial courts decision. Orpp is an objective standard. McAdoo) • Car accident. • The LL is arguing that the custom is that the tenant gets shatter proof glass when they ask for it or if the glass breaks • FOR A CUSTOM TO BE ACCEPTED AS EVIDENCE o That it is a custom o That the custom is reasonable o That in this particular case the custom is reasonable • Weather or not it is a custom it will only help the jury access if the person has acted as orp. it said if they do this they will have to have a different standard for everyone of different intelligence: • In some places the jury will allow if a P to show his retardation if he is contributory neg • We don’t do this for def . may just P maybe Both we don’t know (Vaughan v Menlove) • Def built a hay-rick. when child Is D then adult HOW about the insane • we do not normally make an exception for insanity • the exception if it is a sudden onslaught of insanity then we treat it like a heart attack. At the trial the plaintif prevails. • Orpp would check his tires every day. • Orpp is the minimum of what you have to do • Orpp under the circumstances = is the full name o What is reasonable under the Circumsatances • Def was also claiming even if the tires were is disrepair and I should not have know I did not understand the significance of that. V is suing M for negligence. • Orpp knows that tires need to be changed. The defendant is saying that it is a custom to use shatter proof glass in this situation.

I run a stop sign (my neg) then have to swerve to miss a car (emergency) and hit and hit someone else This doctrine will not come into play where I should have anticipated the emergency  o (Roberts) Physical handicaps • A Blind man working in a post office knocked over an elderly person. Industry standard.What is usually done may be evidence of what ought to be done . The ideal person to sue might be the robber but they probably have no money. EMERGENCY DOCTRINE(how would orpp act) • Standard of care in an emergency is Orpp in that emergency • ORPP can consider danger to himself o This doctrine will not come into play where my neg caused the emergency Ie. He sues the state for employing a blind person. but what ought to be done is fixed by the standard of reasonable prudence(ORPP). weather it usually is compiled with or not. which made him negligent. The cab hit people and they are suing the cab company. mute. the plaintiff had experts that said the cane would make the situation more dangerous and o Even if the blind person was told to use it he would not  This will not get the blind person off unless it is reasonable o We also have a duty to handicap people. who suffers serious injury. The cabbie pulls the E brake and jumps out. The plaintiff was saying the blind person not using a cane while going to the bathroom. the courts do not allow this unless it is like a heart attackunexpected. The negligence would have been the state being careless in the supervision of the blind person. ORPP would keep that in mind when repairing the sidewalk we can’t just put a big hole in it with no way of protecting the blind (Robinson) • The trial court held for Anderson because they used the standard of care for a child • The appellate court overturned this and said the snowmobile was inherently dangerous and they wanted to deter children from using inherently dangerous stuff there for they held him to the standard of care to an adult • Other Jur’s instead of using the inherently dangerous standard uses the Adult activity standard (Brenuig) • • woman though god told her to drive into the truck in front of her she did the trucker is suing for negligence the woman is claiming insanity. o We must consider a blind ORPP  This mean we will hold the blind person to the same standard that we would hold an Ordinary Reasonable prudent blind person  We would hold this for other characteristics also • Handicap and Physical challenges.the least amount that everyone in the community would agree on o (Cordas) • • 2 robbers jump in a cab and put a gun against a cabbies head. a court has held height to be considered so on… o The def only had one expert that said blind people should uses canes. The ORPP might jump out of a moving vehicle under these circumstances. sudden and impairs you . For this to be found the blind person must be found for doing something wrong. def. hence because we know blind people might walk on the side walk.

• the court ruled in this case because the woman though she had spoken with god on previously occasions she would be liable. There kid died when following the custom the court found unreasonable . it does not matter what this party is o Professional Mal-practice 4 professions  Doctor. Education.they don’t want to change a med custom 3 case • Us. When suing a lawyer you must show damages)  blowing the statue of limitations is almost always malpractice for a lawyer to blow that. Religion – we mainly see Dr. . Lawyer . She was 34 when they found glaucoma. The doc testified that it was a custom in pa for a doc to give a diagnosis over the phone for a non-patient. V Quints o Plaintiff developed aids from the def blood supply. Doctors • • • Great need for an expert Must have testimony that there was deviation of what a member in good standing would do courts give greats weight to customs for med mal practice. Both experts agreed that they do not give glaucoma pressure test until 40. the court challenged the customs • Optomigist case o A women visited the eye doc 9 times in 11 years she was 23 when she started visiting. JD malpractice  Courts normally only call post hs edu a professional  Often you need an expert witness unless very obvious • Often need an expert Lawyer o If you have a cause of action against your attorney you must show(2 suits at once)  1. (Legislator stepped in the next year making a law to follow customs) • Inclingo v youin • parents were the non-patient of the def doc. The court held that this custom was unreasonable. that you would have prevailed in the underlying case(ie. that the profession deviated from there required standard of care  2.IE this could have been expected (Lynch) • 22 year old retarded man who lived with but was not adopted by a farmer they were walking together behind a corn picker and he got injured his theory is that the farmer was negligent for not telling him to so close to the machine • P admits it was he knew it was dangerous they found that he was not contributory negligent this is an anomaly we normally hold retarded people to a regular standard o Consideration can be give when the retarded person is the plaintiff (Wright) • Says we should not consider retardation it just puts us back to letting dumb people off menlove THE PROFESSIONNAL • How do we judge ORPP that is a professional (member of the professional in good standing). This was a custom. even if you do not work their case. The supplier was trying to show the blood bank complied with every custom.

following the FAA standards is not enough must as a a pilot in good standing (Hodges v. • Old rule was local custom the rule that comes out of this is the court USED A NATIONAL STANDARD.. o Also the expert doc witness only said that is what he probably would have done (Morrison v MacNamara) • Patient brought a case saying that the national standard was not followed. skill. all material risks and the risk must come to fruitions and there must be a causation element. instead whole case revolves around doctors failure to inform. and her expert said he probably would have. o The court instructed the jury use the orpp pilot with the same training as the def – Remand for new trial because of these instructions o THE standard is a pilot in good standing.had orpp been properly apprised would they have chosen something else.new rule many courts use-this would cause a curtain of silence o The old rule was to protect rural doc’s o Also an MD has the right to be held to a MD standard not a DO but these 2 schools are becoming closer and closer (Lakenau) • If there is 2 schools of though on a procedure and doc use the minority so long as there is testimony that a doctor in good standing would follow this approach case will not go to jury. • Someone who practice holistic med must be reviewed by a holistic practitioner DOCTRINE OF INFORMED CONSENT. Not in Pa .no. o not enough and the fact that her new doc would have does not matter we only look at what a doctor in good standing would have done.Is patient alleging that doctor has done anything wrong in treatment. Carter) • Malpractice against his lawyer for not serving process by hand but by following the custom and doing it by mail. not what a doctor in good standing would do. Because the service was wrong the case was lost by statue of limitations o The areas where an attorney can be held liable for mal-practice are  Damages result from lack of knowledge. • What alternatives the doc have to tell about o Risk of doing nothing – yes o Alternatives risks but not what 1 doc in the Dominican says o How about 15 years after you treat do you have to tell them the risks(saline implants) – at least one court said yes DOCTRINE of INFORMED CONSENT Information to patient: • Doctor must tell patient all material risks what ever a patient would want to know.(Heath v Swith) p 166 o There was a plane crash def is suing the pilot estate for not using flaps. and training  He fails to use reasonable care  Fails to exercise his good faith best judgment (discerning judgment) o Attorney would owe damages if  Must tell client about any and all settlement offers  Or failing to discuss all offer for settlement with the other side (Boyce v Brown) • Woman is making a claim that the doc is neg because he did not take an X-ray.trend • THIS OR A SIMILAR COMMUNITY.

document why.o Material risks. had to inform the patient what a member of the profession in good standing felt they should tell you.something that is likely to effect the patients decision in some jurisdictions must be evidence that if give the proper info the patient would have done something else • Reasonable patient • or what this patient would have done o in certain situations like a model might want to know about 2 scaring techniques in other they treat it as a battery and you need no causal relationship 2 views • • For an informed consent action o Duty to inform doctor forgot to tell you of material risk o Causation. or if it is in the patients best interest not to know – this is a tough one  material risk. its an emergency.patient would have chosen NO TREATMENT or DIFFERENT treatment had alternatives and risks known to him this risk actually came to fruition (note. no cause of action) o Injury.be overly inclusive Unless emergency situation. something you think it is patient’s best interest not to know (not advised. • Must have informed consent • Physician has duty to disclose all information material to patients decision •  (1) physician must disclose personal interests unrelated to patient’s health that may effect physician’s personal judgment •  (2) failure to disclose can lead to cause of action for performing w/o informed consent OR breach of fiduciary duty • HERE. discuss w/family) Information about doctor: • Information about healthcare provider • Some jurisidictions say must know if he is HIV • Some states need to know about substance abuse (not PA) – doctor’s right to privacy may trump patient’s interest Information about healthcare provider: • If have agreement w/ insurer to not prescribe specialist • Provision in contract w/insurere that they couldn’t settle unless doctor ok’d it • Some doctors would transfer all assets to wife’s name • (Scott) • • Def is claiming that the Dr.possibility that physician's economic interest has effect in physcian’s judgment is something patient would want to know when determining whether to consent – it is material . o the new standard they have to inform the patients of all important things that a reasonable patient would want to know. if nothing happened. did not inform the plaintiff of all the potential risks of the surgery Dr.adverse consequences that were not made know did occurred (Moore) • The doctor did not tell the patients that he was making money on his blood • Person has right over own body to determine whether or not to submit to medical treatment. tell all. unless some risk everyone would know. will be judged in prior standard o the old standard was the Dr.  full disclosure of all material risks must be made now • unless everyone knows of the risk.

how much would it take to pay out vs. judge will say as a matter of law ORPP would or would not. Some doctors by paying higher premiums were allowed to get right to say what cases they wanted to litigated and which to pay (so if insurance wanted to put nuisance value on it. and it changed how the doctors treated patients.- o Physician’s extraneous motivation may affect his judgment. Must disclose if they have aids because even thought small chance transmission of can cause death. whether research or economic that may affect his medical judgment. • Legislative history Where we as the court to barrow a statue as the standard of care o 2 tests • convince the court the statue is designed to protect this class of statue • statue was meant to defend against this type of injury o even if this passes the test judge can throw it out • Proc Effects of negligence per se o Majority – unexcused violation is negligence per se o Few – violation of statute is presumption of negligence o Real Few – violation of statute just creates inference of negligence • • 1.licensed seller of alcohol can be liable if they serve. fees.before this the 3rd person could not sue the bar • You can also barrow the standard of care from the statue and say orp would do this • Interpretation of statutes. Lets put nuisance value on it.defensive medicine. you could get atty. • Ex: small claim would come in.if you can show case was settled in your favor and you can prove party who brought suit had no reasonable belief in merits of it. rare o Because as in the train case it can come back to bite you o Ie. Always follow at a safe distance • Legislator will pass a statue that sys you can or can’t do this o Legislator tends not to do this o Dram Shop Act If a bar serves alcohol to someone who becomes intoxicated and drives away and injures 3rd party b/c of ingestion of alcohol . b) California model for reform in this area • Caps on damages for pain and suffering • Sliding cap on what the attorney could get • Limited the amount that doctors could testify Determining Negligence Ways: • Common law. jury determines as a fact • Rule of law. Dr. litigating. Negligence Per se o When a court barrows a statue to bring negligence o There can be an excuse for violating the statue and then there is not negligence . In pa don’t have to disclose alcoholism 1980’s med malpractice crisis • Insurers stopped covering doctors • Doctors were putting all of their assets in their spouses name. they couldn’t) • Malicious abuse of process.neg as fact.material to patient’s consent A physician who is seeking patient consent for medical procedure must disclose personal interests unrelated to patient’s health.

not nonfeasance. said no.e. the common law says you have not duty to do anything.i.ORP would get out of car at RR crossing. (would he have fought anyway).court does not allow use of statute b/c impossible to show jury that more likely than not giving more alcohol caused this fight.o Still need causation factual and legal o o Ex: Stanicheiwz. Could have adopted this as new ORP standard. witnessing the care takers sexually and physically abuse the children. black ice)  Pokora. Former rule. Judge Declares this is Negligent. Does this mean non-negligence per se? NO  Ex: if driving at 35mph (statute) not violating statute. Negligence is more concerned w/misfeasance. Also. if there was no statue that said def had to label the poison the plaintiffs estate could have still won though you don’t want it to go to the jury is you don’t know what the jury will do • if the statue is used you don’t need the jury to determine what orpp would do • you need to convince the judge that the statue was designed to protect the type of person that was injured • even if the statue was designed to protect the kind of person in the action at hand it is the judges discretion as to whether or not to use the statue (PERRY) • • • • In our case we are focusing on the friends of the care takers of children(PERRY). But there are also look and listen rule and stop look and listen rules. Rule was that ORP would always stop in this distance. Plaintiff claimed negligence per se because there was a statue There was a statue that required requiring “Any person who has cause to believe that child’s physical or mental health or welfare has been or may be adversely affected by abuse” to report it The kids were the type of people that the statue was designed to protect but the judge chose not to use the statue. b/c here this guy did these things and still got in accident.e.no duty w/kid normally at common law o Also imposes a duty to act. always will be exception. but there is always an exception (i.thus not good idea to stop look and listen. but if it was blizzard it still could be negligence per se. Why judge probably did not rule for the kids o This is radical change from common law which says you can watch kid get absuded and do nothing.regulation provided that owner had to rid place of rowdy patrons. here you CAN argue that it is more likely than not that if owner complied w/statute the PL probably would not have gotten caught in this fight  Sometimes PL does comply w/statute. what ORP would do  Very rare for judge to say this  Ex: assured clear distance rule was judge made law before traffic law. could be chased w/guns. . Court gets in trouble when says “as a matter of law it is negligent when…”  (Ney v Yellow cab) • The p says this is an anti theft statue • D says this is a public safety statue • Court found this to be a public safety statue but p won • In order for a statue to be used as a standard of care it must be designed to protect the parties that were injured • Isn’t reasonable that an anti theft statue would be designed to protect the parties injured here (Osborne v Mcmasters) • the def pharmacy did not label the poison.

o Also. Statute designed to protect patients from substandard medical practice. what if he did? Statute is not relevant o Ex: involved in accident w/unlicensed driver. Cardoza held that an unexcused violation of the statue is neg per se (Zeni v Anderson p 220) • The def wants to use the statue to show contributory negligence. travel w/o lights. b/c too broad. (Martin v Herzog p 218) • There was a buggy on the road with no lights and car came around the couner in the wrong lane and hit the buggy killing the man. not statute. you are negligent. Cannot use statute to sue for negligence. but here. not to pay damages for fault unless no lights caused disaster. does not help us with orp. It may be have been impossible under circumstances to comply with statute. These people were not direct harmers of children. MAR-CAM CORP (DEF) • Pl gets into fight with Indians and is found outside the bar(Def) with a amnesia • The Pl did not sue the native Americans because he either could not find them or they may be poor • There were 2 statues in this case . o They find neg per see causes a reputable presumption. He said an unexcused violation of statute was negligence per se  There are a few statues where they say violation of the statue causes strict liability • Child labor laws and • FDA regulations (STACHNIEWICZ (PL. and the buggy driving widow can not collect. o Restatment. IF you violate statute. If PL. And sue under statute b/c he does not have valid licensed and he violated it. Can statute work as standard of care? Held to ORP who is driving as standard.she was in violation of the statue o Is it negligent per se. Yet these people would pay significant damages to conduct and actual abusers would pay nothing. places where the statue will not come into play • ORP not determined in statute: o EX: what if I go to doctor and sue for losing hair from radiation.  Looks like they were against Cardozza. Not relevant • Risk not relevant o Ex: We are in a state that says stores can’t be open until 12 mine is open at 11 someone gets hurt at 11 can I be sued for neg per see no.is admitting of no excuse. Thus they say that they do not accept negligence per se. Statute to mandate drivers is for safety of people on road. It may be possible to violate statue and not be negligent.the def needs to come up with a good excuse.negligent and out of court? Here th court reject negligence per se o This court says “negligence per se”. travels w/o lights is not to forfeit right to damages unless absence of lights is as least contributing cause of disaster. in NY violation of statute is negligence per se. but weren’t.as finding negligence and lose case..) v. • Defendant and plaintiff are claiming negligence per se o If a DEF. The plaint was walking on the wrong side of the road in the road not on the sidewalk. allowing civil liability would be out of bounds. Conduct can be negligent but not always contributory negligence o Cardozza says. You are w/in protected class and meant to make people better driver. In order to prevail must show that he failed to act as member of profession I good standing. he is using it in procedural sense. Suggests many reasons for violating statute.

(not fair) o Obviously after this Cardozza did not make new rule b/c maybe there would time when it would be inappropriate to not stop look and listen. So by proving fact B will prove fact A. • EX: testify did not see someone walk in front of you. CO (def. usually so does fact A. o This is where they found the possible negligence per se • (POKORA (pl.) v. • Cardoza overturns this o The Supreme Court does not like to say what is negligence and what is not it b/c there are always exceptions • Ex: formerly rule that you will be negligent unless you can bring car to a stop when behind someone in assured cleared distance. What if guy cuts you off? Automatically found negligent b/c you didn’t stop. o He sues RR for violation of 2 statutes 1st RR doesen’t run or sun • They must use there bells at a crossing The pa supreme said the mules were contributory negligent • o PROOF OF NEGLIGENCE 1. Burden of Proof  Who has the burden of pleading• you have burden of pleading all elements that you need of proving negligence. o Can use this regulation to show that violation of it CAUSED bar fight and this injury o Can make argument that had bar keeper stopped fight. o Court said need to look at causation and it cannot exist in this case 2nd statue: regulation that says you cannot allow rowdy behavior to remain on premise. The def claims the plaintiff is neg because they did not get out of there car and look and the court in GOODMAN found. F upon a railway crossing and finds 2 of his mules dead they were hit by a train.• 1st Statute in place said “no person shall give alcohol to a person visibly intoxicated” o Seems like this is definitely the conduct it was trying to prevent o Cant use statute b/c cant show causation: cant show giving more alcohol to already intoxicated person made them get into bar fight. This is how the district court finds.indirect evidence  Real evidence . there would have been more likely than not. (Foster v Pa RR) o On a Sunday Mr.direct evidence. Types of evidence  Direct Evidence (fact A) • Right to the issue  Circumstantial evidence (fact B) • We have learned that when Fact B is proven to exist.)) • Car is struck by a train because they could not see past box cars.  If DEF have burden all elements to prove contributory negligence o Burden of Production • Have you met your burden so the judge will send the case to the jury .pictures D. EVIDENCE AND PROVING NEGLIGENCE C. but there were footprints. WABASH RY. no injury to PL.

just production) • • .could reasonable people determine that banana there for long time. BOSTON ELEVATED RR CO. • Claiming constructive notice.when ORP would be aware of peel and would have taken reasonable steps to pick it up.watched conductor make wide circle to walk around peel o Constructive Notice. o Instead of actual notice. (has not met burden of persuasion.I saw conductor say “be careful there is a banana peel there  Circumstantial. If find scales evenyou win • Ex Banana Peel Cases-what do you want to prove? Burden of Production. o She did produce evidence that banana was black and gritty to convince finder of fact banana been there for a while. o DEF. when they have actual notice.could reasonable people determine that banana there for time.must clean as soon as you know  Direct evidence.constructive notice. So long as finder of fact concludes that more likely than not all elements existed. slipped on banana peel on platform. for DEF (GODDARD) 225 • First banana Peel Case def.witness says I saw it there for 15 minutes (she has not duty) and then saw PL fall  Circumstantial. Pl just arrived on the platform and slips on a banana Peel • When does duty to clean it up arise o If an employee drops it.  Party w/o burden of persuasion: have 2 ways to win. Created condition-.that ORP would have been aware and cleaned it up  Direct. and then after he ate it banana peel suddenly on ground o DEF. if find not there for long period of time. that no one saw peel before he ate it. Evidence of negligence on his part b/c banana there for sometime. assessing credibility of testifying people. if find equal.then. for DEF. they can find for PL. • Appellate court says. If yes. win.saw him eat it. We use ORP to determine how long constructive notice. looks at pictures.o Have you produced enough evidence that reasonable people could find cause of action exists more than not • The judges job is could reasonable people find for you Burden of Persuasion  DO reasonable people find this way? Have you proved your case?  Finder of fact looks at evidence.you have not produced enough evidence to show ORP would have picked it up. It was “dry and gritty” as if had been there for sometime. o Burden of Persuasion. win.Ex: saw driver eating banana and throw it on ground  Circumstantial. if find scales in your favor. for PL(who has the burden). she was walking with an employee and had waited for the platform to clear • DEF had duty to remove from platform whatever. contends that ORP would pick it up • DEF contends PL did not meet burden of production.condition of banana • Burden of Pleading o Burden of Production. must clean up immediately need evidence  Direct evidence. Def wins (ANJOU v.jury will decide if scales tipped.that banana there for so long b/c ORP would have known and cleaned it up.you have met enough evidence that a reasonable person COULD find that ORP would have picked up.) • Pl. we think it was there for a while. PL. If judge say no way reasonable person. had actual knowledge.right then o If Someone drops it and tells RR employee.

could have put it there. Does not ordinarily happen absent of neg---Check with jens notes 2. It could be dirty stick brown because she stepped on it or because it was there for awhile • Therefore she did not meet her burden of production • Returned for PL. • Inferences of Neg arising from the fact that the inference occurred Requirements. • The court says it could have been there for 2 min or 2 hours • Why is it ok here but not in Anjou. if party gets to finder of fact on RIL. if the neg was likely to be caused by the def There times when jury will NOT know if this event ordinarily occurs unless negligence. but judge said no b/c no one had seen it before.RIL in majority juris helps meet burden of production. plaintiff was not negligent(this has be eliminated) 1. PL. Does not ordinarily have in absent of negligence 3. Need expert to come in and say when this happens this is usually in presence of negligence • EX: taken to hospital for knee surgery.• She met burden of production using circumstantial evidence. When come out of surgery he has no feeling in right arm.Vast majority of RIL is simply an inference to negligence. (JASKO v. (when he used misfit crutches when got pulled out of car. etc) RIL with multiple parties – General Rule – You cannot use • Unless – when the court concludes there is a single duty owed to the parties by the multiple people • When there is a common law recognition of 1 duty o Landlord tenant duty to clear ice and snow. . (JOYCE v. just evidence. Court says no RIL. b/c too many circumstances where injury could have occurred. bring in expert testimony • Ex: no expert needed if go in for tonsils and get 3 toes chopped off. but used someone’s crutches. few other procedural approaches o Some juris. proc effect is to say that it creates a presumption of evidence unless D presents some evidence they weren’t negligent . WOOLWORTH) • Plaintiff falls on pizza on the floor: • Plaintiff did go to the jury because the court said that the def created the situation and such there duty is to clean up the situation immediately. and jury can just disregard it.However.RIL Requirements: 1. Obviously some type of negligence • EX: what if need wisdom teeth removed and lost a tooth in front of them? DO you know if this ordinarily occurs in presence of negligence? DO you know that it is more likely than not when doctor acts as member of profession in good standing this happens sometimes? No 1. A&P) • At the A&P a lady slipped on a banana peel • She is claiming constructive notice • Plaintiff says the banana is old and dirty and brown but no one saw it until she after she fell. because people only saw the banana right after she fell. just evidence . exclusive control 2. and I fall and both the landlord and tenant owe me the same duty in common Procedural effect of Res Ipsa Loquitur . Res Ipsa Loquitur (RIL) • Def-Some instances where if certain circumstances we will allow jury to infer there was negligence.

testifies.“the thing speaks for itself” • Scale tips slightly in the P’s favor. that when a tooth cracks.the crux of this case is every def with any possession of the plaintiff there duty is not only not to be neg yourself but protect the plaintiff from everybody else o Many juris have rejected a case similar to this one. it is due to negligence Do we know for sure this was not an example of terrorism If the def wants to defeat RIL • he might be able to bring in the FBI—but in the absent of stuff like that this does not often happen. FRANCIS HOTEL) o Chair falls out and hits guy in head o Ct. why not?  B/C cannot say that the most likely source of the negligence was the defendant hotel. agreed b/c ordinarily spare tires don’t leave their holdy things w/out negligence  Test: is negligence the most likely explanation • Test is not: are there better explanations  When jury doesn’t know whether when it occurs it is likely from negligence – P has to generally get expert I. Barrel could have been dropped for other reasons. is there another problem with using RIL in this case? If a chair comes rolling out a barrel it’s probably not the result of negligence (chairs don’t roll) (Ybarra v. PERRY) o P claimed spare tire left truck and was RIL  Ct. some however. does not have to limit all these possible other explanations. it’s negligence. (Byrne v Boadle) • plaintiff was walking down the street and a barrel of flower fell out of a guys store and hit the plaintiff. the tenants are at least as likely to have thrown the chair. Because. as a result of this he had pain in his shoulder and his neck eventually ending in paralization • The doc’s were not employees of the hospital . RIL actually switches the burden of persuasion onto the party against whom RIL is being used. Spangard) • We can uses RIL against multiple defendants.o Few juris. (LARSON v. and DEF had exclusive control at appropriate time. the Plaintiff says that the owner is negligent just because the barrel fell on him. who was in exclusive possession • The court holds that the plaintiff was unconscious and could not determine where the injury came from so they said every single def can have neg conferred on him o Ybarra--. oral surgeon comes in. P goes in for his appendix taken out. have accepted • Can also be used against more than one like in the escalator case-Check with jen In order to avoid mixing negligence per se and RIL: o NEGLIGENCE PER SE . scales tip in their favor even though maybe just split. ST. just that it is most likely negligence by DEF. B/C now if we can’t decide. • the trial court said that the plaintiff did not prove any evidence that would show negligence • the appellate court created RIL. (MCDOUGALD v.e. the plaintiff sues the owner of the flower shop.  Even if hotel was closed. if they were employees of the hospital then the hospital could be sued under RIL • The problem with using RIL is that all the defendants complain that the plaintiff was not able to show who caused the injury. but PL. does not allow RIL against D.

  Shortcut way of showing what the standard of care is. was there damages Procedural effect of RIL • Majority – RIL simply is an inference of negligence • Few – Creates a presumption of negligence . • If judge decides can’t get RIL charge. if ct concludes you can’t use the statute. o Must no only say there is potential cause. native Americans in bar. must determine whether or not the statute was violated (question of fact). Addressed to issue. It is a matter of judicial discretion (perry case) • 4. was there causation. • When having a doctor testify on a medical case you want then to say “to a reasonable degree of medical certainty” – in order to win o Sometimes you will need an expert to determine factual causation  Ie Plane one of 4 engines turned off. Did legislature intend this statute to protect the class of the person who’s relying on it. Even ordinarily doesn’t happen in absence of negligence • 2. was the violation a cause of the harm. • 2. Borrowing statute of standard of care Two foundation arguments must be made to judge b/c this is issue of law: • 1. o RIL     Causation • Factual causation o Must have factual causation  Majority • Easiest way is the but for the def negligence the P would not have suffered the harm – then you meet the test for factual causation o It is cause in fact of damage “if event would not have occurred “but for” that conduct. Most likely source of the negligence is the defendant If ct. (stachowitz case. If the court concludes as a matter of law that the statute can be used the jury still has role. problem with causation) o And what would the damages be • 5. The P must only prove more likely than not. P is still in court and just makes an ordinary ORP argument • Proc Effects of negligence per se o Majority – unexcused violation is negligence per se o Few – violation of statute is presumption of negligence o Real Few – violation of statute just creates inference of negligence Type of circumstantial evidence. Did the legislature intend to reach this type of event or risk that occurs • 3. jury still has to decide if there was negligence. if so. allows jury to get case under RIL. way of proving negligence in the absence of ordinary circumstantial evidence or direct evidence In order to use RIL. b/c RIL is evidence that you use when you don’t have direct or circumstantial evidence. • Very Few – Switches burden of persuasion onto party against whom it’s being used. Even if we can show neg that one of the engines turned off we will need an expert to show but for the engine turning off the plain would not have crashed  Burden on P to show that D is the cause We have a problem with Junk science • . but that this was THE CAUSE to THIS INJURY. what would ORP do. Ordinarily. ordinarily you are out of court. 2 foundations: • 1.

• We don’t know for sure if there was a handrail that she wouldn’t have fell. still not enough b/c skin cancer caused in absence of trauma and no proof this cancer cause by this trauma. sues RR. DOUGLAS HEREFORD RANCH INC. CO. (WILDER v. the car would have made it across the tracks o This is only a theory maybe would have worked if their was an accident reconstructionist (not a real word) testifying that if it was going 25 mph could have made it across safely. the train would not have been able to stop w/in the requisite time. It is P’s but P only has to convince the judge or jury more likely then not that if there had there been a handrail or adequate light. WILLIAMS) o We need an expert because no one but an expert knows what causes cancer. (GENTRY v. (KRAMER v. CO) • P suing a railroad • Reynolds walking down steps. RR. TEXAS & PAC. she would not have fallen. Statistical evidence-Some not all jur allow statistical evidence You must show that the chance is slightly more than doubles ie taking the drug slightly more than doubles that chance of this plaintiffs birth defects  o (PERKINS v.o The judge is to determine if the science is reliable and relevant Is it good and can we determine that this D illness was caused by the P negligence “Benedictine litigation”  Judge had to determine if the science was reliable and relevant • Reliable o One way is if it has been published – not a per se rule but must be considered • Relevant o P must show that there symptoms were caused not just that it could cause the effect.h .Was D negligent.P’s other theory: o Had the train been going 25 miles per hour. and there were damages. even if they were going the appropriate speed. then he sues for the damages that the cancer causes o The P has 2 doc’s they 1 doesn’t know other says it could have caused the cancero You need the doctor to say “to a reasonable degree of medical certainty” o In this case even if the doctor said this you would still need to show that the trauma actually caused the cancer o The P did not meet her burden of production o even if doctors said cancer could be caused by trauma. EBERHART) . even at 25m.Suing rr b/c railway admitted they were negligent (going 12 mph too fast) .Problem was.p.but P never proved they were connected. There were no lights or handrails and she was being hurried off the train (that’s what she’s suing for). falls and lands on head.) . Causation is satisfied by proof that party’s conduct was cause in fact of damage (REYNOLDS v. . TEXAS AND NEW ORLEANS RR.) • Guy slips and falls while he is carrying a hunting rifle and shoots a woman in the head killing her • The steps that he tripped in were in disrepair and this is negligent(ORPP would not leave his steps in disrepair) but there is no factual causation because Bacon doesn’t remember how he fell. o Piece of glass falls on a guys head and he gets cancer on the spot where the scar is.

MERREL DOW PHARMACEUTICALS • • • Babies born with small limbs. publication gives room for scrutiny and acceptance OLD RULE Frye test. negligence o Reliable.• • • • Woman claims the doc caused her Esophagus problems The def brings in an expert this.not per se rules but tests • • .Look at Relevance and Reliable o Relevant.HERE. take his total worth.this seem odd DAUBERT v. then take whatever % of that that it is = to doctor’s negligence  Here.Can you show that this PL damages were more than likely caused by this DEF. life total (pretend what his estimated worth be if he did not have cancer).used if generally acceptable in scientific community. negligence the PL. YES  Had doctor not been negligent. all the def wants to do is get the hands in an equilibrium because then the Def wins (HERSKOVITS v. descendent would not have died” o If P has 51 percent or more of survival and then chance of survival is lowered by the doc and they die the doc will be held negligent for wrong full death o If a P has less than 51 percent chance of for survival the doc can’t be held negligent for wrongful death • In some Jur o We are really recovering for “loss of chance” not the death. and take 14% of that  They do not like that need death for “loss of chance”  Some jur reject that if the P have a 2 per cent and it is reduced to 0 percent and dies owe money compared to comes in at 99 and reduced to 1 – nothing.in this case all the doc said B can cause limb reduction you need SPECIFIC CAUSATION. not the def.in this case the study was not published this does not look as good and there was no original study also not as good. The plaintiff brought experts that said B caused the limb defects These experts conclusion was not the result of independent research but of a re look at research prompted by the plaintiffs attorneys o This should not be a decision making thing but give you pause These experts also have no publication only stated in the courts room. Assuming there is a substantial loss of chance  Now just say “can you find more likely than not but for DEF negligence. the def wants to bring in an expert who would show other possible causes The plaintiff objects because no 1 causes is said to be more than likely then the P’s suggest cause It is the plaintiff’s burden to prove factual causation. the PL would have had 14% more chance of survival?”. P dies • Must ask: “members of the jury can you find more likely than not but for the DEF. The FDA approved the B.Supreme court said no NEW RULE. would have had additional 14% o What is “loss of chance worth”  Yale law journal said value PL. Some people consulted an attorney and said we took B and gave birth to babies with deformed limbs. had to have published or someone expert say it was. GROUP HEALTH COOPERATIVE OF PUGET SOUND) • Guy comes to the doctor with a 39 percent chance to live and it gets reduced by 14 percent. there mothers took Benidectin. get in actuary.

if he cannot then all DEF liable. o specific causation problem. however courts are comfortable with the general conclusion that DES causes this type of cancer. ABBOTT LABORATORIES • Def mother took DES for miscarriages.how can this woman prove that her cancer is caused by the DES. Anserson • Multiple sufficient causation – several sources that combined to cause one harm but each individually would cause – but for would not work o When there is MSC.  2 ways 1. look at what market are we looking at.used due diligence but not possible to determine who • EACH DEF IS LIABLE FOR THE WHOLE SINDELL v. def gets cancer and sues • Causation: o general causation problem because many normal people get cancer.here their negligence does not combine to cause individual injury • Not multiple sufficient causation.the def must just prove that the multiple causes were substantial factor in bringing about the result SUMMERS v. TICE • Hunting party both def shot at a bird and some shot hit the P • This is not case of concurrent causation b/c concurrent causation is when DEF combined to cause injury. no magic number  BURDEN OF PROOF AND PRODUCTION WILL BE SWITCHED TO THE DEF o Each def must be neg. and each def only pays their share for the unaccounted for share. o All PL. Sometimes re divide and sometimes make the P eat it o Some courts will say too bad o In NYC they found even the parties that could prove they were not responsible were liable for their share Legal causation . • Court here comes up with rule – o burden of production and persuasion shifts to DEF to show that more likely than not he is not factual cause. Combine to cause 1 injury to PL.Hill v Edmonds • CONCURRENT CAUSATION o Car stops in middle of road and it hit from back.1 of the 2 didn’t cause any harm. o P can get all def or just enough to get a substantial share  substantial share . • Used to be thrown out of court. Passenger sues both drivers o 2 or more independent acts of negligence. 2 a special pathway • She does not know who manufactured the drug o There are 200 manufactures one manufactured it but P only brought suit against 5 • Court develops market share liability o Only one cause harm again but can’t tell who. o each tortfeasor is responsible for the entire result even though his act might not have caused it alone. cannot show that all the DEF were negligent and cannot show which DEF caused injury.the DEF had duty and breached it  through no fault of PL own can determine which DEF. must show that  all DEF were in fact negligent.PL has not met burden. it may more than double the incidence of cancer occurring .

is there reason to cut off liability?.near. but here held that risk WAS foreseeable (looked at what are benefits and burdens to society of getting DEF to change their conduct) o We need to cut off liability somewhere – for what consequences should we hold the def liable o In most cases legal causation does not come up Unforeseeable consequence • Anderson says look at factors o Long spaces of time and distance (Specific tests ) (RYAN v NEW YORK CENTRAL RR) • Def accidentally set fire to his wood shed it spread and burned down neighbors house 150 feet away • Court found you are only responsible for you proximate damages not remote damages o Proximate. in some jur deals with pre-existing mental problems • Remember we judge would the ordinary person suffer emotional distress.we don’t think Polemis is fair. so this court held that the scope of DEF liability is equivalent only to those foreseeable risks that DEF exposed to PL (so if unforeseeable risk occurred. btu nothing after that • (5) Bartelone • (6) Polemis. expected.• DEF has been negligent and caused PL Harm. natural. ordinary o Remote.so long as you expose this PL negligent harm and unforeseeable risk develops.several approaches • (1) lapses in time/distance • (2) strict rule. o 4 scenarios where if legal causation will be raised they will occur: 1) unforeseeable consequence 2) intervening cause 3) policy making 4) when one shifts the risk 1. DEF arguing there are reasons why it is not fair to hold me liable. Unforeseeable consequence LEGAL CAUSATION • If something unforeseeable occurs.same facts as Wagon 1.accidental and varying circumstances that the party has no control over o In a later case they said anything not owned by owned by the P the first on is proximate the rest remote You take the P as you find them. remote rule (NY) • (3) first structure could be recovered for only. so long as it was direct causation (everything ready. under breach and duty not exposing other to unreasonable emotional distress in the average person would not have had emotion distress not liability • ??????????????????????????????????????????????????????????????????????????????????? BARTOLON v. DEF not liable) • (8) Wagon #2. • (4) first structure that doesn’t belong to DEF. just DEF negl.proximate vs. Brought about harm DEF liable) • (7) Wagonmon #1. You need factual causation first. JECKOVICH • Accident since it the P started suffering from Psychotic symptoms • They found the accident triggered a pre-existing mental condition . immediate.

someone is able to prove to satisfaction of judge that a person’s whose experienced on sea would realize that although chance very slim. this PL must show that a duty owed to him is breached before we go on to causation and damages. even though the harm here seems remote What about when risk that occurs was NOT foreseeable but other risks were foreseeable.same facts as Wagon #1. current majority rule. So therefore PM>B so ORP would not allow this consequence to come to fruition.says yes. PL standing v. but risk was unforeseeable. Not all can recover. far away on platform she was out of zone of danger and thus DEF not liable. this just will cover PL-DEF duty exists. Cardoza. RR (DEF)ASK PROF T • J. This time PL prevail b/c in this case use (Probability x Magnitude). but now PL will depend wheather legal causation • Legal causation is about being fair and not about rules but about “hints” and he says use ALL hints to determine legal causation  Natural and continual sequence (Ryan)  Substantial factor  Direct connection (Polemis)  Foreseeable risk (Wagon 1) • He comes up w/ Hindsight Rule –  EX: would anyone reasonably foresee that driving a car thru a red light would cause an explosion and injure someone very far away. another risk occurred.I. PL relies on Polemis. DEF subjected to some risk of harm. there was a chance that oil could ignite—thus now we have a foreseeable risk. DEF negligence happened on set stage. but end result was unforeseeable. But this court says we don’t think Polemis is just or fair.so DEF conduct was negligent. • • PALSGRAF (PL) v. That cotton in water and metal and oil ignited and destroyed PL ship. • J.  He suggests we look at injury which we are seeking recovery for and go back in time to point where negligence has come to fruition .• You take the P as they come .since only reason we judge you negligent is b/c you put PL in certain foreseeable risk of harm it is not fair to extend your liability to unforeseeable risk of harm Wagon 2 not legal causation just because something has never happened before does not make it a unforeseen risk look to the formula Wagon #2. Here. but nothing new had to happen. So is it one that ORP would avoid? Probability that oil would ignite (low) but if fire does occur the Magitude (very high) and the Benefit to allow oil at sea is (0). In this case.why should we cut off liability Wagon and kinsman • D has been neg and exposed P to an unreasonable risk of harm • But what comes about is unforeseeable if it was the only ham from the neg action it would not be neg at all • We have a directly traceable line from D to P – in a Polemis you pay in a wagonmound jur you don’t Pay • Wagon #1.he put PL at risk. He can show this by risk reasonably perceived defines those in zone of danger.no matter if risk foreseeable or not.duty is always owing. Andrews – rule regarding duty. thus anyone can come forward and say injured.. ship owners sue for same act of negligence.so long as someone was in zone of danger and exposed to unreasonable risk of harm.should we hold DEF liable • Polemis. L.

Was this PL (grain owner) w/in orbit of danger—foreseeable at risk?. As long as someone is in the zone of danger the P can use that to get duty and breach  For legal causation Andrews says look at a bunch of factors. But when reasonable people could not help but find no legal causation they take away from jury and decide self. and bridge wouldn’t get up.here when explosion occurs. or o If you have a duty to protect plaintiff against criminal harm you cant get off for someone doing something illegal.it is very likely she could be injured • Cardoza o Neg is duty specific for a P to recover from a admitily neg D you must show that a duty was owed to the P and she was in the foreseeable zone of danger who could orp foresee hurting Andrews o A breach of duty to any one allows the P to establish legal duty and a breach. Even though no one could foresee noreeaster. and he add his own factor  Look back from the very incident for palsgraph look at given that the def neg came to furishin and there was an explosion is it unreasonable for the harm Where the very same risk created by the def came about but by a very unforeseeable manor The risk crearted by the morning was flooding and that is what happened (Kinsman I). Here risk of not mooring ship property was that it would cause property damage to homeowners. you bring criminal into contract with innocent(burger king) How about God as intervening factor • It is not negligent to not anticipate an act pf god 1.discuss Wagon also • fact that risk comes about in unforeseeable manner doesn’t mean not liable. body guard. His grain rotted and didn’t make it out of his warehouse. justice and trying to be fair. He is a foreseeable PL but he does not recover b/c they go back to Andrews and says that questions of legal causation are about expediency. an intervening cause that cuts off my liability*** • DEF negligent • DEF cause and fact of PL harm • But b/c intervening cause.YES b/c one of risks of runaway ships is that channel would be blocked. Here they view Chang’s action as extraordinary if not act of suicide. 2. INTERVENING FACTORS **after DEF negligent.. is it not foreseeable that someone far down platform could be injured? – YES. But it took long time to clear debris and use river. alarm installer. when it is just economic loss we will cut off liability of merely negligent DEF. So take away from jury. FORD MOTOR CO. at time negligence comes to fruition. YUN v. should cut off my liability • • Many courts will say when the intervening act is intentional or criminal it is unfair to hold the def liable Unless o you cause the situation. . Ie prison guard.even the courts will say is this foreseeable is it aquestion for the jury or judge 1. we wont cut off liability • If same risk comes about but in unforeseeable manner courts will continue to hold DEF liable (Kinsman II) • However on other side of bridge there was an farmer of grain who needed to get it upstream to sell. • So here. Generally questions of legal causation are for jury.

Before risk came to fruition. DERDIAN (PL) v. so sends it to L. mom says “that’s fine don’t play in living room”. you did everything you could.• Kindsmen rule – So long as intervening act of God brought about same risk that that you brought about. bad driver) drive YOUR CAR and you know they are not a good driver you can be held liable jointly Shifting control of the risk**DEF by his negligence has created risk of harm foreseeable to a group of PL. but L ignores and gets injured for injury guard meant to prevent. Then S realizes should be guard on it. • Some courts will say even if you plan out. Guy has an elliptic fit and drove into the sight hurting someone • Def says b/c driver entered work site b/c of his epileptic seizure. Foreseeable that house could burn down. this could be irresistible impulse. Store seller is negligent. we will not cut off liability.then no What if the intervening person is an ordinary person • Usually if the persons intervening is innocent or neg then we normally will not cut off liability Irresistible impulse• act in frenzy (in some jurisdictions) if plan for (write note. o If the pole fell so I went another way and got hit by a bus then not negligent.now mom could have taken dynamite from kid • Ex: S is employee and makes something for her company. realize problem w/ car. Ms. Buyer gets in accident and sues. not liable for injuries suffered by PL* only cut of liability if he act willful wantly and negligent Negligent entrustment if you let friend (drunk. doesn’t negate fact they were negligent in first place. Telephone pole is only 10 in down should have been 12 in fla there is a blizzard an act of god. L buys it. buy gun) then might not be held as irresistible impulse. but before risk comes to fruition someone else actually takes charge of the risk How should this affect liability of the DEF?*** • Ex: 2 children go to store and buy dynamite. And probably foreseeable that she would throw out letter. even though made someone aware. There would be liability here it was the same thing that the def negligence would have caused. Kid comes home. But then when kid at home. telephone pole falls and kills me . Throw out letter. If had said we will do for free and will give you loaner car. your liability is not cut off. but an unforeseeable risk prob not o Ie. MAYBE court will say ok. FELIX CONTRACTING CORP (DEF) • Work site did not put up barriers and had no flagman. will leave it up to jury Rescue Doctrine *allows injured party to sue party which caused danger requiring rescuer in first place* cardoza –danger invites rescue-so in zone of danger PL must prove: 1) DEF was negligent to person rescued and such negligence caused peril to person rescued 2) Peril imminent 3) Reasonably prudent person would have concluded such peril existed 4) Rescuer acted w/ reasonable care *Usually when professional rescuer. this is intervening unforeseeable risk- . L took charge • EX: car manufacture and make car and sell to dealer. • I cause someone house to catch on fire and fireman do bad job of putting out. Then send letter to dealer saying problem and we need to fix for a week and $1000. Would it be fair to cut off liability of manufacturer? They were originally negligent.

o court says no. but as he tries to move B.probably. W can be liable for harm suffered by rescuer S • Then F sees S in trouble w/back so carries him to side of road. even trained rescuer can make mistakes o But if she knew S and crunched him then W not liable • If C hurt her back while moving S (legitimately) o Will W be liable – NO. o Is W responsible for B’s sprained ankle? YES (car never touched him.? –NO. b/c no factual causation. same risk just unforeseeable manner. Would DEF still be held liable. a trained EMT.YES. she was negligent. o Can W be liable for this others acts that resulted in harm? YES– it is foreseeable that if you hit someone and they are in road that someone else will serve to avoid and get involved in second collision0. but risk is that if you drive too fast risk you create is that person will take steps to avoid you. but b/c danger invites rescue rescuer is always w/in zone of danger even if he was home after whole thing (so he cannot be liable even though barely in zone of danger.many courts will say YES. upon getting up B puts weight on right ankle and falls in middle of road. if S was out of zone of danger. S hurts back o Can W be liable for S’s preexisting injury.they cannot get compensation for taking those risks b/c there paycheck includes this compensation • Then SC drives over B’s left foots . o Will W be liable. So what if he put up barriers but not flagman. b/c Fireman’s Rule. so unusual Use hindsight approach. So maybe this wasn’t even negligent for him to move him from road.YES< o Unless G just switched lanes and hit K on own • B is in middle of road. he punctures B’s lung o Is S liable for B’s harm? – we give him ORP standard of care. that this is not so extraordinary. she punctures his lung. G may or may not be negligent. he wouldn’t pay attention to flag man. This is a guy that had a seizure.PL falls flat on face in middle of road. o Can F sue S? yes if S was negligent o Can F sue W. OR she might have been putting on cell phone.W will be liable for negligence of rescuer • As S is trying to pick up B and carry him off street. (no matter if she is negligent or not) (unless she ran him over on purpose. as she moves S out of road. he goes over to help B.. W still liable) • Then B is road and G swerves in doing so hits K. B jumps in ditch to avoid.can W be liable the rescuer of the rescuer. So yes I was negligent but it was not factually related to PL injury (How much can we keep certain DEF in case?) EX1 • W is driving to fast and almost hits B. Other court might say ORP would know should move person b/c could puncture lung o Is W liable?.(intervening act) – is it unforeseeable that if you hit someone they will be in middle of street that someone else will run them over – NO. she might be not negligent at all.Given what happened after negligence comes to fruition. S comes along and knows how to bandage. W will be). • Then if he is middle of road and K runs over his right arm o Is K liable? What if it was very dark and she couldn’t see till he fell in front of her. so no matter (like Kinsman) – even • risk is that 3rd party will be negligent.yes. under Rescue Doctrine (PL must be in zone of danger). this is risk you created o in this case by not putting barriers up they created the risk of a car driving in Another theory: PL claims owner of site negligent b/c should have been flagmen and warning signs. none of this is not that unforeseeable • Then C. This makes him flare up his schizophrenia. o Is W liable for run over right arm?. it is very foreseeable .

• • . until one case in NJ that social host was not liable.prob not. At hospital.not a response to DEF negligence. injuring his back o Will W be liable? YES o If reason E and M drop him is b/c E saw pretty flower and pushes stretcher away and it rolls over. Q could be negligent (might not be if dark) o Will W be liable for J’s injury? – maybe S (original rescuer) gets back in car and on way. She is def negligent. unless person drinking was minor.if it is irresistible act of suicide. this guy took his own life. but if court says suicide is result of irresistible impulse. J sees B’s right foot and left arm and go to pick up and throw out. M and E are driving it. (b/c has head) and he buys gun and says I cant take it anymore (I hate being mistaken for Steve!) and commits suicide o Will W be liable.W liable still On route to hospital they get into collision w/ L. as do this you are run over by Q. Hospital is negligent too. they accidentally drop him. o Will W be liable? – maybe depends on how S pulled back onto the road C had picked up body parts too.then independent reason. this is an independent intervening cause. but L hit them as independent intervening cause. he slips and falls on ice b/c hurt leg from accident calls him to slip and breaks other leg o Will W be liable for this? It is now months after accident. extraordinary o But if T doesn’t give him blood transfusion that he couldn’t get b/c hospital overworkedW liable If placed next to Ch and B catches pneumonia from him o Will W be liable? Yes. R sees B. S is guest drinks too much and on way home hits Miss R. cut off my liability.then yes W will want court to find this (and all other acts as superseding acts). W probably not liable o If M and E just stopped and L hits them.YES B is lying there. if this was a dependent intervening clause they were speeding probably of because it is an emergency. o If drop him b/c back hurt. And doctors try head transplants So S head on B’s body o W will NOT be liable for this intentional act by doctor Day B is leaving hospital owned by H. you caused him to be in weakened state At accident scene. This might be case which is too extraordinary and might cut off W’s liability.W probably not liable Then he comes home from hospital and has flashbacks from S. but W can still be held liable b/c it was caused by the leg that W hurt If B broke leg bungee jumping. They get B on stretcher and as they are wheeling him over. 3.• • • • • • • • • • • o Will W be liable. but if they are just run into this seems like an independent intervening clause.then W still liable • (even if planned ahead in some jurisdictions) • (must be in frenzy. the ambulance drivers duty does not get W off the hook o If he was driving crazy for fun times. Yes B is in ambulance b/c of W. Could argue W not liable. tripped over rock. and B gets whiplash o Will W be liable for B’s whiplash? o Must know what caused collision. says here is he the appendectomy patient (mistake) o Will W be liable for this?. unplanned in other jurisdictions) Public Policy Matter of law court will decide this o Generally speaking there is no liability to someone not yet in existance court will sometimes cut off liability at some place o EX: have guest at your house and Mr. V hits him. finally an ambulance arrives. brings in S’s head. this is not a response to def neg.

• Suicide (as matter of law) is not superseding cause in negligence law that preclude liability (it does not break factual causation chain) o For suicide by an accident victim to be liable.yes o (2) must show PL legally caused the injury. The question is was the match thrown maliciously. was healthy got into a car accident. The NY court cuts off her liability at the point of when people were not yet in existence at the taking of the medicine • Insurers need to be done with litigation at some point. o (3) Did Suzuki legally cause his injuries?. ELI LILLY CO • The granddaughter of a woman took DES and she can allegedly show factual causation that DES caused her cancer. Then the day he killed himself his daughter heard him say I must do it. GWINNELL) • Generally not liable • NJ Social host case • Here they held that when A host who serves liquor to an adult social guest.plane old public policy decisions I IS THE JOB OF THE COURTS TO CONTROL LITIGATION. knowing both that the guest is intoxicated and will operate a vehicle. • Even though RR negligence was factual cause of presence of gas in street.Shiffing the risk • Shifting Liability . • Other places this is held the other way • Dissent – a social host is not expert in telling when someone is drunk and what kind of force must one use • Legislator went and drafted exactly when ENRIGHT v. unwillingly. AMERICAN SUZUKI MOTOR CORP (DEF)) • Pl helping at an accident told to place flares on roadway to warn approaching vehicles PL decided to position himself ¼ mile from scene and manually direct traffic w/flares in hand. Court found that this did apply and the had to look at these ?’s o (1) whether rescue doctrine applies.jury ?’s (KELLY v. etc. this could also deter drug companies from continuing to make drugs. PREIS) • Dr. On way back got hit by car • Rescue doctrine.o (if you are social host and provided alcohol willingly.the RR was negligent. After accident he had 38 seizures. is liable for injuries inflicted upon a third party as a result. KENTUCKY & INDIAN BRIDGE AND RR CO) • there was a RR wreak and gas spilled over the road. you will be held liable if guest minor) (WATSON v.he is suffering from ensuing mental disease and was unable to control an “irresistible impulses” to destroy himself  One can retain power to know and yet have irresistible impulse and thus be incapable of voluntary conduct ???  Must determine whether suicide was rational act of a sound mind or irrational act or irresistible impulse of deranged mind – evidenced by physical damage to brain. (MCCOY (PL) v. not legal cause b/c could not have foreseen it probable that one would maliciously do such an act for evil purpose of explosion. 4. • Jury must determine Duerr’s actions (FULLER v.

o Modern view: employer is bringing risk to community by engaging in this type of business. but not HOW they do work. more likely he is servant The right to control physical work details i. employer/independent contractor). Factors for employer/ Independent contractor . Right of control – more control master has. Contractor doing something wrong. f.then independent contractor ii. Vicarious Liability • First distinguish between an employee and a independent contractor o Employee you tell them how to do the job. – general rule a. To install glass 90 stories up. Since this is great risk of great harm general contractor will be vicariously liable. So he should pay when risk comes to fruition o determine if R.o Δ creates the risk o Someone else was put in control  liability was shifted to he person in control o Vendor sells fireworks – kids come into the house and show Mom – Mom tells them to go play with them outside.let the master answer for the torts of his servant. When hire stupid independent contractor. Community does not give him back risk. Mayber look at taxes. Contractor madegeneral contractor can be held liable When general contractor sees ind.no vicarious liability for acts of independent contractor. 1) Servant/ master control -whether the employee is a servant of employer or independent contractor (master/ servant relationship vs. The working hours d. of course have right to control final product. independent contractor just the finish product o In the real world this is on a continuum • We are going to attempt to hold some one liable for a tort that the person did not commit because of their relationship between the actual offending party and the party we are trying to hold liable • Repsondeat superior.general can be held vicariously liable When the general contractor act in an intentional tort o o o o e. Who provides the tools c.S. hire is negligent When accept inferior product that ind. you are general contractor and hire indp. Are they paid piece meal or salary o Exceptionso o o Employers will be liable for illegal acts of there independent contractors Non-delegable duty: I can’t give my responsibility away When job you hire independent contractor for has a very great risk of inflicinting great harm o Ex: building 90 sorty contract. b.

went to a mechanic so on.C. taxes in paycheck? – influential but not determinative. The trend seems to be to recognize and hold vicarious liability  how about lunch breack at work • look at jur o some the employee will only pay when but for the employee was furthering the company o other just ???????????????????????????????????????????? ?????? (MURRELL (PL) v. He was granted workmen’s comp.liability whenever act of employee was committed w/ implied authority. In this case we had written contracts that they were independent contractors and this is how the parties viewed the contract. • An independent distributor hired him. just leave. bring own equipment (master servant usually provides). o Ie we are service business. acquiescence or subsequent ratification of employer o “enterprise”. STATE • This is not a normal outcome • He drove 80 miles to the work sight.hours you keep. paid per piece/ paid per week • Servant liability o employer will be liable when employee acting w/in scope of employment o old rules driving to or home from work not liability or if I left for the day. The court ruled the employer had not control. pay for his expenses. GOERTZ (DEF)) • Paperboy hits woman and she sues paper.if reasonable distance. still inside scope o court said so long as employer’s interest is part of interest. this is frolick and employer may escape liability o “control theory”. then employer might not be liable . supervision . if someone refused to pay for pizza. employer will still be liable o Ex: if drive truck to AC. so only if delivery guy punches guy for personal reason. was he a employee or I.if employee punches guy who refuses to pay. no fighting”. o Almost every jur has recognized that an employee might do personal business while working and still considered this in the scope and it will not cut liability o If it is a frolic then there is not liability o Ie : delivery guy and forget wallet and go home to get it. o It would seem in this case the employer had some control because they were paying his expenses FRUIT v. • (MALONEY v.influential but not determinative.just a consideration not determinitive.liability whenever enterprise of employer would have been benefited but for unfortunate injury.employer still liable. SCHREINER o is a better example of how these cases normally go o he was on his way home from the bar which could be considered work. and the paper boy was an independent contractor to the distributor.interaction. exclusivity. but courts have determined in cases like this I can get rid of liability LUNDBERG v. RATH) • Woman when to mechanic he negligently fixed he brakes and she crashed and is being sued • You can’t get rid of your liability for something like this • I did everything I was supposed to do. The employer had given him this temporary new position.

no roles assigned.o Even if employee is outside scope of his employment. Risk agreement does not have to be express: ex: could have 2 strangers both pull up at red light and rev engines and no words spoke. When multiple Δ’s negligence combines to result in 1 injury to the P.e. they are both jointly and severally liable to PL a.e.employers do not do it. employer negligent for failing to check background. 4 CHOICES for jt and several libality  no change – J & S liability continues  no more J & S liability  come up with figures  less. When parties agree to put the л at an unreasonable risk of harm. ORP would not have agreed to this c. but they race and court will say tacit agreement and both created unreasonable risk to PL d. employer still can be negligent himself (i. failing to explain how to do this. Risk you created caused injury b. Y’s car hits no one but Y is liable b/c these parties engaged in explicit or tacit agreement expose PL to unreasonable risk of harm they will both be liable as if they had both hit PL. J & S liable.insist employee reimburse in full pursuant to what employer paid on vicarious liability General rule. who has overpaid in damages. Courts have also held those that give encouragement can also be liable (i. o The majority of jurisdictions still follow joint and several liability o Some jurisdictions only impose several liability when Δ’s liability is 20% or less. B/c 1) reason PL went after employer is b/c employee has no money and 2) not good for employer/employee relationships Joint Tortfeasors Intentional joint tort feasors o People involved in the crime  No right of contribution  A realease of one was a release of all – they were seen as action as one Negligent tort feasor • • • • Can have 1 duty  employer/employee are seen as one (vicarious liability). girl that cheers them on) Joint & Several Liability • Common duty – respondeat superior . failing to supervise. o 2 cars are racing – 1 hits the л – both are liable • Right of contribution  Gives 1 joint tortfeasor. the right to get a contribution from the other joint tortfeasors. failing to recognize reports) Indemnity Employer does have right to go back to employee for indemnity. only severally liable – more. but only X car hits PL and injures PL.  Abolish J & S liability for pain and suffering (Bierczynski) • 2 racers.

• Some jurisdictions think that if the percentage is less that 20%. and there must be no legal impediment from the P recovering from the def like spousal immunity JOINT & SEVERAL LIABILITY common law  “pro rata”  equally negligent Δ1 (Bill Gates) --------------$33. • Some jurisdictions hold that states.20% = $20. municipalities. If you get a release from A-> and the liability was 100. Any joint tortfeasor who paid too much is always entitled to contribution from other tortfeasors.333 Δ3 (Broke Guy) -------------$33.000 . and homeowners can only be severally liable. Comparative Negligence • Ask 2 QUESTIONS o Does joint and several liability survive? o Is the release of one a release of all? • These jurisdictions that favor comparative negligence believe that J & S liability should be abolished. • Some jurisdictions believe joint and several liability for actual damages but only several liability for pain and suffering.000 Δ2 (Ordinary Guy) --.333 Award . (majority ) o Some jurisdictions call a “release” a contract and that л can sue other Δs.000 Δ1 (Bill Gates) -------. In the release you statae you can sue the others o Payment from one joint tortfeasor must be deducted from the total owed.000 Δ2 (Ordinary Guy) ---------$33.$100. COMPARATIVE NEGLIGENCE Award .333 • • • If one Δ can not pay.000 each  each Δ is liable for 100% but the л can not collect twice so they split the damages. Some jurisdictions say that a release of 1 Δ is a release of all Δs.30% = $30. there should just be several liability  If the percentage is more that 20%.000 you can only go after B for 90 Contributory Negligence v. there should be joint and several liability. o Some say that there must be an expressed right to sue other Δs. charities. then the other Δs pay $50.• • • • Independent negligent Δ which combined to cause 1 injury to the л (concurrent tortfeasors) Agreement – tacit or expressed to create a risk of harm Joint tortfeasors are NEVER contributory negligent – only л's Contribution – gets ¼ from each if there were 4 o In order to get contribution the person must be a joint tort feasor.$100.  Ie.

This means at most. PL does not have to give credit to remaining joint tortfeasor. though DEF1 has right of contribution. Jury comes back and says damages are $100. . How much can PL get from DEF1? – must find out what kind of jurisdiction.333. We are not in comparative jurisdictions. he has gotten back 33.000. (punitive damages) • Ex: so if PL actual damages are $100. $ amt.000 from DEF1.50% = $50. PL can only get 10.000 and $100. Now PL must give credit to other joint tort feasors What is the affect of a release? • EX: prior to trial PL and DEF2 decide to settle.000 Ex: DEF1 10%.  In other jurisdictions.666. but will have to pay DEF1 23. o if in jurisdiction where release is ok.if PL receives PL from someone other than joint tortfeasor. DEF3 60%.333. At most PL can get $90. (special damages) but might abolish it for general damages.000.33  DEF1 will eat this loss in some jurisdictions  In other jurisdictions. How much can he get from DEF3? $33.333. o now. they will still have to pay for her damages • EX: PL has no insurance but one of joint tort feasor or someone on joint tortfeasor’s behalf (insurance company) pays damages. But for general damages can only get $10.000. DEF2 30%. so her aunt pays hospital bills. • Ex: PL has no insurance.000 for special. Release for $10. so he is still off 23. PL at most can only get $66. • If in jurisidciton where cut off is 20%.000 from release of DEF2. He thinks he only owes 33. some will say that release only affected PL right to recovery.000 at actual damages. • If joint and several survives.000. And PL damages are $100. so even though PL damages are $100. Joint tort feasors do not get credit for that. makes PL pissed b/c here. OR she can get ALL of it from DEF2 or DEF3 • If jurisdiction keeps joint and several liability for actual damages.66.333. PL can get$100. 66.33 from DEF3.000.000.666 from DEF1.000 total (10.666 from DEF1)  • PL failure to sue another party cannot preclude other DEF from going after o Other tortfeasor can go against you for contribution o PL must decide for which ever is greater.33 o now DEF1 has paid out $90.33. that means he has paid $56. therefore DEF2 will not have to pay PL any more.333. PL must give credit to remaining joint tort feasors for whichever is greater. from def 1 • If P was even one percent neg in the old rule he would get nothing Collateral Source rule. can get 0 from DEF1. (Same % as above). so all % same. PL will only get $76. received or % attributed to DEF to whom you gave release. Dollar for dollar or assessed percentage of party.000 from DEF1. o If in jurisdiction where release of one is release of all.Δ3 (Broke Guy) ------.

They sue their cab driver. you are only liable for 10% of damages o DEF 2 you do 90% of business. Statute of limitations o The honest to raise this is on the defend o Usually begins when accident happens o Now many jurisdictions have discovery rule.000 from employer. and cab driver employer (resp. but not for fire damage. we have 3 j.t. it is their burden to prove what the first injury caused What to argue separate damages-to help client (Michie v.begins when PL knew or should have known about injury. PL doesn’t have to show exactly what injury caused. W wants 100. then most she can collect is 33.more progressive jur o 2 def spew pollution into the plaintiffs river.000. She collects 100.  Ex: now. but that court has statute that says you must give credit to DEF who released. but at different period of time.000 from husbandspousal immunity.  (PL must have been able to sue from that DEF you seek contribution)  There was legal impediment b/c PL W could not collect 50.000 (b/c cab and employer seen as 1 DEF). prior to trial gets release from 1 DEF and gets 10. including from H. PL wants to collect 90. Either for dollar amt. say PL HOMAGE. o We can say DEF 1 you do 10% of business. (if 33%. Great Lakes). how much can he sue H for? When impute negligence to employer.f. • But to collect: o He must show that other party was Joint tort feasor. Yes hurts a lot but if I am driver 1 (causer of accident number 1) and only responsible for first less severe injury o Bruchman. you are out of court.PL if you cannot show exactly what damages driver 1 is responsible for. PL suffered whiplash in both of them. If DEF doesn’t want to pay whole thing.000 who will she go to get it from. and there was no legal impediment. superior).000. Argument would hold for what % of pollution damages. Employer seeks contribution from other joint tort feasors. Find damages for 100. They counter sue and say husband negl.000) PL failure to sue another party cannot preclude other DEF from going after (Yellow Cab v. Dreslin) H and W in car by driver and get in accident. – cab employer.o o Ex: damages 100. o Suppose throw match in river and set fire to all of town. o Now court would probably say all 3 jointly liable. or DEF percent. Defense 1. you were negligent also and cannot recover  (When we have 1 accident right after another) o Ex: what happens when PL involved in more than 1 accident. yet one def does only 10 percent of the business that the other one does o Some jurisdictions would say we do not have only 1 indivisible injuery here.000. Employer thinks he will ge t50. you are liable for 90%. o they were negligent and their negligence was o legal cause for injury. they find all 3 negligent. (is this just for surgery?) • . DEF will say yes I am responsible for your back but only for what happened from my accident.000. if employer sees taxi cab had damages for 1000. PL burden to prove o Court much hard on DEF 2.

in addition to statute of limitations will have statute of repose will say “in any case. that past is past o DEF must bring this up (this and statute of limitations) Immunity o Formerly. But did failure to wear seatbelt actually cause accident? – in this sense it does not preclude PL from recovery. • Ex: free surgery • Banned b/c said did not encourage safe procedure • Also banned b/c courts said charities are big businesses and need insurance for this Familial immunity• Formerly and still in many jurisdictions. if does cannot sue federal government) Charity. no PL can bring action 10 years after procedure took place. need to get no w/ lives. but if cause of action that arises from parent child relationship we will continue to say kids cannot sue parents. and he doesn’t. theP is subject to the same orp under the circimstance o (Butterfield) -guy left tavern and hit obstruction but not able to recover b/c drunk and riding too fast.not allowed for children to sue before b/c • Real idea is that when kid turns 21. Л’s conduct • If л's negligence was cause in fact of the л's injuries. we will not assume Parental immunity.2.formerly could not sue charity. Δ will be held liable. it just says any damages you can prove PL would not have suffered had PL worn seatbelt. л gets nothing (in jurisdictions that recognize contributory negligence) • Last Clear Chance Doctrine a.e. up to insurance company to prove fraud. kid will sue mom and dad for emotional distress • Some courts say.if this is cause of action that could be brought against stranger (i. o Idea that tort law needs some finality.(he came from God) • Federal torts claim immunity act (need to find out if your tort falls w/in it. . 4. 3. no matter when PL becomes aware of tort.could not sue the king. cannot sue w/in family b/c family is united • Also wife could sue husband to protect insurance companies (they planned it to really sue insurance company).problem b/c why cant use same argument for best friends • Some jurisdictions say if really thing fraud.don’t need so much anymore     Especially governmental defense.  Failure in advance to take precautions defense: • Ex: PL forgot to wear seatbelt this caused reduced recovery or barred recover. mom driving negligently and injured kid) we will abolish inter-family immunity. immunity was huge defense. If л's negligence occurs but Δ has the last clear chance to avoid injury.Supreme Court has recently restricted this rule Statute of Repose o Provides date certain o Ex: in med malpractice. 1. You will not be responsible for Contributary Negligence o If the P is in any way liable then not liability for the D. o Note.

ok for PL If does not maybe not be fair for PL Release: Damages 100. he can recover • If there are joint tortfeasors. replaced w/ comparative • 3 TYPES a. PURE  if л is 20% negligent.000 PL liable 40% DEF1 50% DEF2 5% DEF3 5% Comparative Negligence Most jurisdictions abolish contributory negligence. he can recover his % as well c. but one did not stop and not found. PL can get 50.000 from DEF 2 or 3 or 1 b/c jurisdictions have said we add up all DEF % and then compare them • If joint and several doesn’t survive: Greater/ not as great as: from DEF1. from DEF3 nothing \ Same thing for pure: • • What about phantom or uninsured DEF? Ex: there were 3 cars.5. Do percentages have to add up to 100% or can we leave space for phantom DEF—some jur say no good with phantom other say on PL: 10% DEF: 40% DEF 40% ----only adds up to 90% At trial they will try to push liability on phantom DEF As long as joint and several liability survives. • If it does not can only get the percentage that someone owe. “Not Greater Than”  if the л's negligence is 50% or lower.majority rule not effect Step 1: ask if joint and several liability survive? Step 2: ask what jurisdictions: pure. “Not As Great As”  so long as л's negligence was 49% or lower. add up all the Δ’s percentages and evaluate whether the л's negligence is low enough to collect. gets from DEF1 and he can use contribution to get rest from other DEF . also ask if there is a limit that someone who is only 20 percent liable they may not qualify for jt and several liability In not as great as if joint and several survives: PL can get all from any DEF.000. Negligence is assigned percentages. from DEF2 nothing. Δ pays only 80% of damages b. • What is the effect on the doctrine of joint and several liability. 50% 49% Pure jurisdictions-PL can get 60% in joint and several from anyone Not as great as & Greater then jurisdiction: • if joint and several liability survives o Provided joint and several liability survives PL can get 60.000 PL` DEF1 (rich) 30 DEF 2 (avg) 20 DEF3 (poor) 50 If pure: PL and joint and several survives. What if multiple DEF? PL damages 100. can get all from DEF1.

she can get only get 30. Step 1: ask if joint and several survive. PL can collect 30. Public Policy i.not effected by change from contrib. now ask about release (if in jurisdiction that means release of one is release of all she gets nothing. asks for contribution.000.this will NOT work.. In an area where DEF not under duty to provide w/ something safe. either dollar for dollar amount you received or dollar amount that represents % . has duty and PL has not choice but to be there 2. Ex: Dr.000. but not jurisdiction like that So : Joint and several survives. Ex: If not joint and several.000 from DEF1 and 50.you have assumed risk to ski . can get 50. this is not a risk PL assumed to take. PL under no obligation to ski. Only way to defeat: 1. I will delvier baby if you sign this assumption of risk. OR public policy reason a. at most she can get 90. there is a missing 10. you agree to hold DEF harmless i.000? DEF1 unhappy Ex: PL gets DEF2 for release to pay 10. in contribution. Ex: life ticket usually on back assumption of risk express. you have to pay contribution. it is printed in line before you buy it. no public interest. Dr.000 Joint and several liability survives DEF1 can only pay up to 80.000 from DEF3 6. Assumption of the Risk • • Expresses and implied Expressed. at most from DEF3 he can get 50. DEF2 unhappy has to pay the 10.000 This jurisdiction sees release differently and court says that was only for w/ PL. court respects your right to your body.000 now.000 Ex: PL you must give credit for whichever is greater. at most. probably can recover b. I got back 50.000.Ex: prior to trial DEF2 pays PL 10. Risk that came to fruition is not one you accepted 2. b/c if it doesn’t. If you decide to bungee jump and accept risk the court will say you accepted the risk even though you were stupid ii. Ex: PL skiing on mountain and DEF owner shoots PL. so probably not precluded from recover. EX: DEF owns ski mountain and PL signs assumption of risk PL skis on it.000 Then DEF1 goes to DEF3.whichever will be greater! So if PL released DEF2 for 10.000 from DEF1. PL can hope to recover 90. I was only responsible for 30. if joint and several survives.000 (their % ultimately) PL unhappy. DEF1 only paid 30. (it doesn’t survive) PL releases DEF2 for 10.000 PL from DEF1= 90. Very hard.no recovery 3.000 contribution from DEF3. Then DEF1 can get 50. To comparative neg a. Def under no obligation. 1. Now. Now in also some states there is statute.000 PL gives credit for DEF2 % which is 20. still out 10. Usually comes up in scenario where DEF not required to provide activity and PL not required to participate. Formerly PL would say no baraginign I had no opportunity to read it.000.000.000 from DEF1. but he says I paid 90.

The Δ is negligent but the л agrees (impliedly) to remain in the area of risk. (Cases) MCINTYRE v. PL brought negligence action and DEF answered that PL was contributorily negligent in part b/c drunk driving. d. Flying in a plane and coffee spilled – ice skater slips and falls on the ice. Requires a knowing and voluntary acceptance of the risk under circumstances which indicate the л was relieving the Δ from liability. if you unreasonable assume the risk you might get something but if you reasonable assume the risk nothing b. what we have discoved is it is possible to reasonable assume the risk must be voluntary i. – Def was already neg yet P has knowingly and voluntarily stayed there – used to be a complete def .• • • Primary Implied Assumption of the Risk a. Risk is not an unreasonable one i. If we did P * m = B it would be reasonable b. Evidence that DEF had been exceesively speeding. Plaintiff does not have to know or voluntary accept the risk. • Unreasonable assumption of the risk is NOT a complete bar to recovery (seems counterintuitive). c. f. PL appealed . However where there is a reasonable assumption of the risk it is a complete defense 1. Is it ever reasonable to assume the risks? • If you know that there is a risk but you accept it because there is an emergency  may be reasonable under the circumstances. b. c. Most jurisdictions have abolished this. Л must know the risks. Knowingly it does not matter that orp would know ii. Δ has exposed the л to an unreasonable risk and for some reason the л chose to remain within the zone of danger. Jur have been saying an unreasonable assumption of the risk is basically like neg and the P can collect some money iii. c. g. BALENTINE FACTS: DEF McIntyre was traveling south on highway when PL entered.you put a guy from France in a baseball park Secondary Implied Assumption of the Risk a. ballpark. this is a complete bar to recovery. DEF hit PL from behind. • In most jurisdictions. Л's unreasonable assumption of the risk is NOT a complete bar to recovery  treated as negligence. Л's reasonable assumption of the risk is a complete bar to recovery. PROCEDURE: Jury found them at fault equally for DEF. PL appealed (on jury instructions b/c no info on comparative negligence). Not used frequently but when used is unaffected by the change from contributory to comparative negligence. Almost everything has risks that can not be reduced by reasonable costs. affirmed. Court of Appeals said comparative negligence is not law in TN. Л is injured by one of the risks but the Δ was not negligent e. Evidence that both had been drinking. Rational Assumption of the Risks a. d. The л accepts the risk by engaging in the activity.

RUSH v. FACTS: PL lived in apt building controlled by DEF. This was not assumption of risk (she was not required to leave premise and go elsewhere). • Court here adopts 49% rule • Court says “equal at fault” by jury not determinative b/c didn’t have these instructions. PL knew what he was getting into. jury question even if so. PL had signed release form that said he could not bring DEF as Def in cause of action. PL argued release form was violation of public policy PROCEDURE: trial court dismiss ISSUE: is release violation of public policy HOLD: no affirmed RATIONALE: It is violation of public policy when release form has one party not dealing at arm’s length (bargaining disadvantage) or when activity affects public interest.affirmed. Reversed and remanded RATIONALE: Formerly contributory negligence means PL cannot collect unless: (1) DEF conduct intentional (2) DEF grossly negligent (3) DEF had “last clear chance” – w/ exercise of ordinary care to avoid PL injury (4) PL negligence was remote Court abandons this rule and adopts comparative negligence 2 types: Pure: PL can recover for amount not responsible for Modified: PL can recover only if PL negligence does not exceed DEF (50% and 49% jurisdictions.ISSUE: Whether PL who contributed negligently to tort can still collect HOLD: Yes. DEF wanted her to be found negligent contributory ISSUE: was PL negligence contributory? HOLD: NO. HERE. WILCOM FACTS: PL Winterstein was driving on drag race track owned by DEF when he hit long cylinder obstruction and was seriously injured. this time while walking across the privy gave way through a trap door and she fell 9 ft below. knew about release. Limited Duty • Failuer to act • Unreasonable inducement of emotional distress • The unborn .remanded • This rule also means: o Last chance rule obsolete o PL fault < all DEF fault o PL fault < all DEF and nonparty (if PL tried to get nonparty as DEF) WINTERSTEIN v. Not a matter of law to determine here. Sport is not public interest sport. COMMERCIAL REALTY CO. TN will now have comparative negligece. to use facilities she had to walk across a privy also owned by DEF. If it was contributory negligence when she stepped on floor which she knew was in bad order it is up to jury to find out she had knowledge or should have known of conditions. affirmed RATIONALE: PL Rush had no choice but to go across privy. refused finding for DEF. She sued DEF for negligent maintence PROCEDURE: trial court said would not refuse nonsuit.

and if there is does a breach of that duty constitute a proximate cause of the harm that results from sexual abuse? They wanted to make the wife liable for the husbands child molestation. you will be held liable. If you promise that you will help that results in others not helping or the л not helping themselves.  Even if you were not negligent to begin with. FACTS: 2 young girls (12 and 15) spent substantial time w/ their neighbor at his horse barn riding and caring for the horses. When you are intimately involved in the incident. They found a duty .  If there is an accident. When there is a contract When the Δ created the harm  o o o  o  o o o o  Either created the injury or created the risk  leaving a car on the road. o When you are a police officer?  No. on appeal reversed and remanded • • • whether a wife who suspects or should suspect her husband of actual or prospective sexual abuse of their neighbor’s children has any duty of care to prevent such abuse.  STANDARD: psychiatrist or psychologist in good standing. Psychiatrist / Psychologist Tarasoff  if psychiatrist becomes aware that the person intends to commit harm. You have a duty not to put the л in worse peril than he was before you started to act or the best situation you had him in . His wife denied she could be found negligent for girl’s injuries PROCEDURE: trial court entered summary judgment for RTH (Mary) (DEF). you have a duty to act reasonably to help the injured – call the police if you do not know how to help. R. v.  The courts have held that when a wife knows of her husband’s pedophiliac tendencies. you must act reasonably. they have a duty to act. When must one act? o When you are a profession (MD)?  No. she has a duty to warn because of her intimate and unique position.T.  Parent only has to act reasonably to make sure the child is acting reasonably. Relationship to the Perpetrator  If you know that your child has a known predilection for violence.• • • Dealing with a lender Generally. Following his conviction girls and their parents sued him and his wife for damages. AND M. If you start to act.S. there is NO duty to act. Man conceded for liability for both intentional and negligent injuries.  There must be a reasonable belief that this person presents a danger and there is a specific target. Then you have control over the thing causing harm the escalator case Preexisting Relationships with victim Parent/Child  Employer/Employee  Inviter/Invitee  There is a duty to act reasonably without putting yourself in peril. there is no duty to act? Good Samaritan Laws  there is not duty to act.S.H. they will only be liable if their actions are reckless or wanton. Neighbor sexually molested them. but if someone does act.  o (Cases) J. there is NO duty to help another person in need.  Can not leave deer in the middle of the road.

not of the death or the injury.  Must perceive the injury.  Distress must be a proximate result of the shocking event.Negligent Infliction of Emotional Distress (NIED) • If there is IMPACT. spouses. LaChusa  Must be present at the time of the injury. • Percipient Witness 3rd party o Many jurisdictions consider this to be too long of an extension of liability. children. л may recover even if they are NOT in the zone of danger. and grandparents have all been recognized by the courts. o Must be in the zone of physical danger. those on the plane were able to collect for NIED  found that they were able to anticipate the impact of the crash. o If there is no IMPACT.  Mishandling of corpses  Miscommunication o When there was almost a plane crash. the л can recover without physical injury. o parents.—zone of danger • must suffer physical symptoms.—fanices ????  Dillon forcibility test ??????? o Thing v. use the zone of danger test. o The risk must manifest physical symptoms. has put the л in risk of physical harm. by his negligence. • MAJORITY RULE – “Zone of Danger” Test (R2T) o If Δ.  Must understand that they are watching an injury producing event. • must have a close familial relationship. he will be liable if physical consequences result. . • Some jurisdictions say that shock is a physical symptom = recovery • Some jurisdictions say that shock is a mental symptom = no recovery • Pre-Impact fright o Can not recover damages o Anytime there is a guarantee of genuineness. • A few jurisdictions do not require the witness to be present at the time of the event.  “Zone of danger” test • must be within the zone of danger. fiancées. • The courts expect people to become injured and to die so they do not allow witnesses to recover for the grief that they suffered.

Allowing the child to sue someone whose neg was not causing the injury but instead that someone did not help the parents get an abortion • • • • Wrongful Life • • • Majority of the jurisdictions can not determine how life with impairments measures up in damages to a normal life. Many courts impose a duty on birth control/condom manufacturers if parents want to avoid pregnancy due to the high risk of deformity and due to the negligence of the Δs.  The mother can collect for her difficult pregnancy but the unborn child can not collect. o Smoking crack. Some courts have imposed a duty on a Δ who has a special relationship with the fetus (geneticist). the Δ will be liable. the Δ will be liable for the baby’s injuries in utero. • If the baby dies after that date. o If a child is stillborn.  Some courts look at the viability of the birth and set a threshold date. or for taking harmful antibiotics. there is no liability. there is liability. A child has the right to be born without problems. Δ will not be liable. I want money because I lived o Ie. • If the baby dies before that date. drinking. . o Generally. Direct victim must be injured Duty to the Unborn • The idea that there is no duty to the unborn but if there is a special relationship maybe • Can there be recovery for preconception injuries? o 14-year old girl had a pelvis injury from a car accident which resulted in a difficult pregnancy and a deformed child 10 years later. o Parents do not have to mitigate damages by seeking a abortion or adoption. o If child is born handicapped. there is NO duty to the unborn. Some courts allow children to recover because of public policy. Children may sue their mother for negligently caring for herself while she was pregnant. the л becomes pregnant and child is born with a handicap.  If there is a car accident with a pregnant mother.

Landowner in possession • • Did the injury producing event happen on or off the property Does what you do on your property cause harm to someone out side it then we will probably allow recovery o Was it a naturally occurring event. Ie there is a major accident and to get around the accident they walk on your land. and if despite the warning it is not safe you must make it safe  You walk into Kmart and ther is cones around a spill you run over the wet floor when you heard about a sale and you slip  Also icy steps with a warning and only way in and out o Public  Land open to the public for the reason open to the public o business  they give you a benefit it can be a mutual benefit • • • • Children are treated as atleas licenses Ask • • • • • on or off property natural or artifical status of the plaintiff who is the def – land owner in or out of possession.generally less liability  You may not even owe a known about tress passer o An artificial event – generally more liability What about an injury on the property o What is the relationship with the person that is injured  If they are there for there own purpose then act as orp  Or for owners benefit less duty owed to you Tress passes for the reason of travel o more protection. they must come on the land next to the high way.not ok alone .do not have to be pleaded and proven specificallty o Punitive. licenses o there there as your guess  you owe them a duty to warn of condition of stuff they would not dicover on their own Invitee o At least as good as other 2 due care with naturally and atrtifical stuff.no good in neg law a o Actual this is what we talk about  Special they must be specially pleaded and prove  General damager. ect Damages o Nominal.