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Def: D must have intended to bring about some sort of mental or physical effect upon the other person. It is formed if the actor desires to cause the consequences of his act and the consequences are substantially certain to result from it. OR If the actor desires to cause the consequences of his act or believes that the consequences are substantially certain to result from it. OR intentional infliction of harmful or offensive contact with the person of the P. D act must b intentional and the act must cause a contact with the victim and the intended contact must be either harmful or offensive to the victim. Willful Intent is formed if the action is: o Purposeful o Knowing Substantial Certainty Test If D knows with substantial certainty that an particular event will occur as a result of his or her actions then you are deemed to have intended that result. A high likely hood is not enough it has to be more then that If D know with substantial certainty that a particular effect will occur as a result of her action, she is deemed to have intended that result. EX: When the 5yr old moved the chair he didn’t want his aunt to fall and hurt herself but he knew her falling would result because of his action. o Merely intending to engaging in the act that caused the harm is enough o The act requirement for intentional tort liability refers to a volitional movement on D part. o Specific and General Intent Specific: An actor intends the consequences of his goal in acting is to bring about these consequences General An actor intend the consequences of his conduct if he knows with substantial certainty that these consequences will result. o D intended to tap P lightly on the chin to annoy him I P has a glass jaw, which is broke by the light blow, D has still intended to cause the contact, and the intentional tort of battery has taken place even though consequences were not intended. o Mistake Doctrine: If a D intends to do acts which would constitute a tort, it is no defense that the D mistakes even reasonably the identity of the property or person he acts upon or believes incorrectly there is a privilege. A shoots B dog reasonably believing it is a wolf, A is liable to B assuming B has not wrongfully induced the mistake o Young children: Under the age of 7 incapable of intentional torts young children may be capable of intentional tort even though too young to be capable of neg
Child Liability Over 7 o children may be liable for torts they commit as long as the injured plaintiff can prove the required elements including intent. o A child in most states cant escape tort liability bc of young age Under 7 o Presumed to be incapable of harmful intent
o Many states go further to say children under 7 are assumed to be incapable of committing any tort at all Parental Liability o If the statue authorizes a suit claiming parental liability so the statues requirements for recovery must be met or if the parents are themselves at fault Statues imposing liability on parents for their children’s torts exist in almost every state limited in 2 ways: o The child’s tort must have been committed willfully or wantonly o The damages that may be obtained are limited o Some states cap damages at a low amount while others are less restrictive o Court will look for on a statutory claim to see whether the child acts fit under the statutory definition that gives rise to parental liability o P who sue parents will claim it was the parents own fault bc they negligently supervised the child and that caused the P harm That’s diff to win Children do not have money so often parents insurance company will cover the minor child living in the household
Mentally Incompetent Person in most places are liable for intentional torts even though incapable of forming a purpose of understanding the consequences o The act must be intentionally and substantially certain but the consequences need not be. Ex: D intends to tap P lightly on the chin to annoy him. If P has a glass jaw which is broken by the blow, D has intended to cause the contact and the intentional tort of battery has taken place even though the consequences (broken jaw) were not intended. o if harm is intended the tort is intentional. If not and D conduct merely creates a foreseeable risk of harm then D conduct is either neg or reckless depending upon the magnitude and probability of risk and D's consciousness of it. EX: if Lopez faints and falls on Joe he is not liable for battery bc he has not acted intentionally. Transferred Intent o Applied very limited in this tort mostly P will not recover o Limitations on the Use of Transferred intent is limited to assault, battery, false imprisonment, trespass to land, and trespass to chattel o Immediate family present exception D directs his conduct to a member of P immediate family and P is present and P's presence is known to D o D's Conduct: Must be extreme, outrageous, intolerable and not merely insulting or profane. Unless D knows of some special sensitivity of P mere verbal abuse and threats to do what D has legal right to do are generally not actionable absent circumstances of aggravation. o Transferred Intent: If D held the necessary intent towards person A but person B was injured by the action then the intent transfer to person B.If you miss your intended victim and actually harm another then the intent carries making you liable for the actual harm that resulted. o
EX: D shoots at A, and accidentally hits B. D is liable to B for the intentional tort of battery. o Under the "transferred intent" if D held the necessary intent with respect to person A. he will be held to have committed an intentional tort against any other person who happens to be injured. o If the intent requirement is met for one person then it can be transferred to another. o EX: If she tries to frighten Lopez by shooting near her, but the bullet hits her instead, she will be liable for battery even though she intended to commit an assault instead. Intent is used to denote that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it. o Minors and incompetents will be liable for their intentional torts they are said to hold to possess requisite intent Intentional Torts are very avoidable bc they require a deliberate choice to invade another's rights, the actor need only restrain herself to avoid invasion. Where she fails to do so it ok to impose all the resulting damages even the unintended damages. The causation requirement will be satified where the conduct of the D is a substantial factor in bringing about the injury Def: battery protects against intentional invasions of the P physical integrity. No contact is intentional if it is not the result of a voluntary act. Intentional infliction of a harmful or offensive bodily contact. EE Def: the intentional infliction of a harmful or offensive contact with the person of the plaintiff Touching of another person must be done in arude, angry ot insolent manner in order to constitute a tort Intent: not necessary that D desires to physically harm P. D has the necessary intent for battery if it is the case either that: (1) D intended to cause a harmful or offensive(damaging to a reasonable sense of dignity) bodily contact or (2) D intended to cause an imminent apprehension of P's part of a harmful or offensive bodily contact o EX: D shoots at P, intending to hit him with the bullet. D has the necessary intent for battery. o EX: D shoots at P, intending to miss P, but also intending to make P think that P would be hit. D has the intent needed for battery Reasonable sense of dignity= because a person of average sensitivity in Ps position would have her dignity offended An act by D which brings about harmful or offensive contact to the P person; Intent on the part of the D to bring about harmful or offensive contact to the P person and causation. Harmful offensive is determined by whether it would be considered harmful or offensive by a reasonable person of ordinary sensibilities. Contact is deemed offensive if the P has not expressly or impliedly consented to it. Causation is direct or indirect and it is sufficient if he set in motion a force that bring about harmful or offensive contact to the P person A person may recover for battery even though he is not conscious of the harmful or offensive contact when it occurs. Battery can occur by intentional snatching of an object from one's hand is as clearly an offensive invasion of his person as would be an actual contact with the body
However if the bodily contact goes beyond what is consented then the consent is invalid. D only has to have intended contact doesn’t matter if they intended no harm or offense If P consented to the contact then D is privilege and there is no harm. o EX: D spits on P. loathsome. it is not necessary that P have actual awareness o EX: If D kisses P while P is asleep then a battery has been committed. or realize that such a contact is substantially certain to result from it. To commit a battery the D must not only intent to act she must act for the purpose of inflicting a harmful or offensive contact on the plaintiff. o A contact that is offensive is one that would be offensive to a reasonable persons sense of dignity . A has committed a battery. or unduly personal. D must have acted intending to cause a harmful or offensive contact with P (or another) or an apprehension of such contact o EX: A intentionally punches B in the nose. That's the intent necessary for battery. P need not be aware of the contact at the time it occurs. An offensive contact is one which offends a reasonable sense of personal dignity as by being hostile.. In some states children under 7 are assumed to young and incapable of harmful intent required Was there contact? Was there intent to commit a contact or harmful touching? For a defense. o EX: D shoots at P intending to hit him. In most states children may be found liable of intentional torts. OR Harmful or offensive contact (direct or indirect) with P's person caused by D with required intent. D must have acted intending to cause a harmful or offensive contact with P or another or apprehension of such contact. If the harm is minor the P will recover little.. D has the necessary intent for battery if it is the case either that: (1) D intended to cause harmful or offensive bodily contact or (2) D intended to cause an imminent apprehension on Ps part of a harmful or offensive bodily contact. o Diff from socially accepted customs o bodily harm is any physical impairment of the condition of another's body or physical pain or illness. Look for this in sporting events and medical/ surgical procedures Intent: It is not necessary that D desires to physically harm P. Even if P is not harmed (meaning no physical pain or injury) a battery has occurred because an avg person's dignity would be offended. EX: If Smith pushes Lopez into Jones then Lopez has not acted and is not liable for battering Jones. insulting. It went beyond the level or type of contact D knew or should have known P impliedly consenting to then it would constitute battery Harmful or offensive contact: If the contact is harmful (it causes pain or bodily damage). A harmful contact is one that produces bodily harm. If consent given then cant go beyond the conduct that was consented to . was the defendant justified in committing the battery? An intentional infliction of a harmful or offensive bodily contact. P's Person includes his body and things in contact with it or closely associated with it. Battery also covers contacts that are merely offensive or interfere with a reasonable sense of dignity. An act is an external manifestation of the actors will. OR Harmful or offensive contact (direct or indirect) with P's person caused by D with the required intent.
o White: Party must have been aware of the offensiveness of her conduct in order to be held liable for the intentional battery. o This also include object intimately associated with the victims body. can serve as the basis for a claim of battery or intentional infliction of emotional distress. Cases o Van Camp: P must plead and prove facts est the D wrongful Conduct o Snyder: Contact that is offensive to a reasonable sense of personal dignity may subject the individual committing the contact to liability 4 battery. o EX: Setting out a trip wire and knowing that the P will trip on satisfies contact requirement. o P who claims battery must that the D intended to cause harmful or offensive contact with the claimant o The intent necessary for the commission of a battery is present when the person knowing with substantial certainty that the harmful contact will occur. o Garratt: Intent is present when the person acts knowing with substantial certainty that the harmful contact will occur. If a person is sensitive and the D knows of this then they are liable if they however do not know of this then if a reasonable person would not have been offended then D is not liable When one acts with a person which is surely an offensive contact and they succeed in causing the contact at the point that battery is complete then the D is liable for all the possible consequences of that battery The test is what a reasonable person would find offensive under similar circumstances If D is aware P is extra sensitive then although a reasonable person would not be offended and P is then because D knew ahead of time this is a battery. An actor can possess tortious intent even though she bears the victim no ill will at all. if violated. . An act by D done with the required intent which arises in a reasonable apprehension of an imminent battery. A party must have been aware of the offensiveness of her conduct in order to be held liable for battery Purpose of the intent requirement is to make the D liable when their acts with a higher level of culpability then mere carelessness: where she acts with purpose. or with knowledge that the act will cause harmful or offensive contact to the victim. o Cohen: The right to refuse med treatment if violated can serve as a basis for claim o Mullins: P alleging battery must show that the D intended to cause harmful or offensive contact with the P. o An actor is liable regardless of whether she uses her fist or another weapon to cause the contact if it is intended t cause a harmful or offensive contact tot he P. D must have acted intending to cause a harmful or offensive contact with P (or another) or to cause an imminent apprehension of such a contact. Intent is met by either purpose to cause tortious contact or substantially certainty that such contact will result. Elements of Battery o Contact that is offensive to a reasonable sense of personal dignity may subject the person committing the contact to liability for battery o The right to refuse medical treatment. Contact Requirement: The D need not actually touch the P at all or even be present at the time of the contact to commit a battery.
but the shot misses. D hopes P wont see him but P does. o EX: D threatens to shoot P but doesn't intend to actually shoot P o EX: D shots a gun at P trying to hit him. This is an assault Ordinarily words alone are not sufficient. P is frightened. intent on the part of the D to bring about in the P apprehension of immediate harmful or offensive contact with the P person and causation apprehension is not fear or intimidation rather expectation P must be aware of the D act. Normally. An act by the D creating a reasonable apprehension in P of immediate harmful or offensive contact to P person. D must have acted intending to cause harmful or offensive contact with P (or another) or to cause an imminent apprehension of such contact. D must have acted intending to cause a harmful or offensive contact with P or another or to cause an imminent apprehension of such a contact." Intent to make contact: Alternatively. there must be some overt act a physical act or gesture by D before P can . Protects against mental tranquility and ones right to be free from fear or apprehension of unwanted contact words alone are not sufficient by themselves to be assault there must be some over act. Words alone do not make a actor liable for assault unless together with other acts that put a reasonable apprehension of imminent contact. An act by D with intent that arouses P to have a reasonable apprehension of a imminent battery. Was there intent to commit a harmful or unwanted touching? Was there the ability to commit a harmful or unwanted touching? Was the plaintiff in imminent apprehension of a harmful or unwanted touching? Intent to create apprehension: D intends to put P in imminent apprehension of the harmful or offensive contact even if D doesn't intend to follow through So D has the requisite intent for assault if D either "intends to commit an assault" or "intends to commit a battery. OR This is an act done by D with the req'd intent which in P a reasonable apprehension of imminent battery. -Assault Liable for all the resulting injuries even the unexpected ones upon completion of the battery If you do not intent to cause the harmful or offensive contact then you are not liable for it even if the contact in it of itself turned out to harmful consequences Assault allows the recovery for interference with peace of mind even where there is no physical invasion of the victims person or property. physical gesture by D. Contrasted with battery where the P need not be aware of the contact at the time An act by the D creating a reasonable apprehension in P or immediate harmful or offensive contact to P person. D intends to in fact cause a harmful or offensive bodily contact. Intent on the part of the D to rbing about in the P apprehension of immediate harmful or offensive contact with the P person and causation Intentional causing of an apprehension of harmful or offensive contact. by themselves to give rise to an assault. Unless countered by words that negate the possibility of assault Exception: surrounding circumstances or D's past acts may occasionally make it reasonable for P to interpret Ds words alone as creating the required apprehension of imminent contact So where D is pulling a prank or making a bluff if P believes or knows that no imminent harmful or offensive contact will really occur and non does occur there is not assault.
There must be an apparent intent and apparent present ability to carry out the threat immediately. D is subject to liability even thou P apprehension is unreasonable. EX: Clenching ones fist while saying "If I weren't such a good person Id hit you. o Apprehension of harmful or offensive contact must be reasonable one. If D assault is direct at P. or when it is apparent to P that D intended only an assault. . claim to have been assaulted. B does not know that the gun is not loaded. unlike for battery. Words may give meaning to movement. o An assault may occur even when D's act is directed against a third person. Mere words unaccompanied by physical act are not an assault. Apprehension is all that is required. B apprehension of immediate harmful or offensive contact is reasonable. provided P reasonably perceives the threat of a battery to P. A conditional threat may be an assault unless D is privileged to enforce the condition. Some over act is necessary as words alone no matter how violent do not generally constitute an assault because they cant create a reasonable apprehension of immediate harmful or offensive contact. not the identity of the person who is directing this unpermitted force at him. Apprehension is not the same as fear or intimidation. Apprehension is the sense of expectation. Apprehension o P must have been aware of D's threatening act at the time before it is terminated. P need not be afraid. Courts generally will not protect P against exaggerated dear of contact (unless D knows of unreasonable fear and uses it to put P in apprehension). Knowledge of the D Identity Not Required: It is not necessary that the P know who the D is at the time of the act. (one only need apprehend an immediate harmful or offensive contact. Thus. Imminent: Contact must be perceived as imminent. D apparent ability to act is sufficient: A person may be placed in reasonable apprehension of immediate harmful or offensive contact even though the D is not actually capable of causing injury to the P person. For such apprehension to be reasonable it is necessary that the D have the apparent ability to being about such contact. EX: A points an unloaded gun at B. Words may negate an assault by making unreasonable any apprehension of immediate contact even though the D commits a hostile act. surrounding circumstances or Ds past acts may occasionally make it reasonable for P to interpret D's words alone as creating the required apprehension of imminent contact." There is no reasonable apprehension of harmful or offensive contact. one may reasonably apprehend an immediate contact although he believes he can defend himself or otherwise avoid it. Knowledge of the Act Required: For there to be apprehension the P must have been aware of the D act. P harms is imminent and that D has the present ability to carry out the threat.
Were there reasonable grounds to detain the plaintiff? Was the plaintiff detained for a reasonable amount of time? Was the plaintiff detained in a reasonable manner? Was the plaintiff in fact confined? Was the confinement complete? Was the plaintiff injured or prevented from leaving the confinement? Was the plaintiff conscious of the confinement? 8.If the words and act combine to form a conditional threat an assault will result. Confinement may be by means of actual or apparent physical . D asserts that he has legal authority to confine P (even if D does not have legal authority) as long as P reasonably believes that D does. idea of confinement is that she is held within certain limits not that she si not allowed to enter certain places Can be committed by direct physical means but also by threats or by assertion of legal authority If D threatens to use force if P tries to escape the requirement confinement exists. P must be held in an area with no reasonable means of escape known to P. 4. D shot and misses. EX: Robber points a gun at the P and says " your money or your life". Threats of future contact are insufficient. D may assert that he has legal authority over P P must either be aware of the confinement or must suffer some actual harm 2. If D threatens to use force if P tries to escape the requisite confinement exists b. Confinement must be complete and P must have no reasonable or safe exit known to him. 6. 5. Thats is false imprisonment bc D has intentionally confined P for a substantially time. Confinement: When P is prevent from leaving a given area even when that area is relatively large. Intent. FI cant be committed by merely negligent of reckless acts. because she did not fear a contact with her own body. Rule: Occurs when D intending to confine P or another w/in boundaries fixed by D so confines P and P is conscious of the confinement or is harmed by it 7. The imprisonment may be carried out by direct physical means but also by threats or by the assertion of legal authority. 3. Cases: o Cullison: Assault is not sustainable where a jury could conclude that the D intended to frighten the P and that the P apprehension of being injured was one that would normally be aroused in the mind of a reasonable person . a. EX: P sees D raise a pistol at Ps husband. The robber is liable for assault Apprehension must be of immediate harmful or offensive contact. P cant recover for assault. There is no assault if the D is too far away to do any harm or is merely preparing for the future harmful act. Merely the intent to confine. P must show that D either intended to confine him or at least that D knew with substantial certainty that P would be confined by D's actions.False Imprisonment Is defined as the intentional infliction of a confinement for a reasonable period of time without known means of escape. Mistaken identity is no excuse nor is good faith belief that the confinement is justified. Or suffer actual harm. P must know or be aware of the confinement. intentional infliction of a confinement EX: D wants to have sex with P and locks her in his bedroom for 2 hrs hoping she willl agree. She does not and D lets her go.
FI could result if the purse was wrongfully withheld. FI can also arise from indirect threats of force. Intent on the part of the D to confine or restrain the P to be bounded area. and the detention must be only for a reasonable period of time and only for the purpose of making an investigation. Moral or social pressure is not enough. Intentional Infliction of Emotional( mental ) Distress (IIED) 1. Acts or words that reasonably imply that the D will use force against P person or property of P immediate family. ADD DIF TYPES OF ARREST BY POLICE and private individuals that are and are not allow pg 27 from barbri inlcude am of force allowed for each Shoplifting Detentions Are Privileged: By statue some states have given shopkeepers have given a privilege to detain for investigation. An action may also lie if the force is directed against P property. EX: Lulu remained in abuilding bc her purse had been confiscated by Chauncey. even in the absence of physical harm. FI will result where P is restrained by the use of physical force directed at him or a member of his immediate family. Direct threats of force by the D to the P person or property or against persons of the P immediate family can constitute FI. physical force or credible threats of physical force. Intentional or reckless infliction. When an arrest by private citzen pr police without a warrant is unlawful and is FI. When D by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to P. the detention must be conducted in a reasonable manner and only nondeadly force can be used. Conditions must be satisfied: There must be a reasonable belief as to the fact of theft. Length of time is not relavent Generally awareness of confinement is needed but if P is not aware then he must be injured by the confinement then the requirement is still met. An act or omission to act on the part of the D that confines or restrains the P to a bounded area. P confinement must have been legally cause by the D act or something set in motion thereby either directly or indirectly FALSE ARREST . by extreme and outrageous conduct . Bounded area restrains freedom of movement in all directions must be limited.Cannv Walmart : Threat of physical force or a claim of lawful authority to restrain is sufficient to show confinement in an action for FI. of severe emotional or mental distress. barriers. With no reasonable means of escape of which the P is aware. Accessories: D must have been an active and knowing participant in procuring or instigating the confinement. D is subject to liability to P for that emotional distress and for any resulting bodily harm. Cases: o Mc. including its wrongful aspect. Invalid use of legal authority amounts to FI if it resuls in a confinement of P. 9.Intentional Infliction of Emotional Distress D. An act by D amounting to extreme adn outrageous conduct. intent or part of D to cause P to sufer sever emotional distress or reckless as to the effect of D conduct . D threaten to harm another or property. D may imprison P by confining him through the use of physical barriers. Shoplifters: Shopkeepers may be privileged to detain persons suspected of shoplifting for a reasonable time only for the purpose of conducting an investigation. She could have left the building but that would have necessitated leaving the purse behind.
D then made food on his threat. Liability will attach when Susan suffers sever emotional distress by showing that D purpose was to cause her severe distress even though she was not a relative of Mike and was not present when he was murdered. o 3rd Person: if D intentionally or recklessly causes sever emotional distress to P by such conduct that either P witnesses D's conduct and the 3rd knows of Ps presence and 3rd is a member of P immediate family OR P severe emotional distress results in bodily harm o D is liable only if P response is within reasonable bounds of normal human reactions unless D knew od P extraordinary sensitivity and proceeded anyway. This is only when there is outrageous conduct. . Unhappiness for a short time is not sufficient.Trespass to Land . the D knew that the P was present and a close relative of the injured person o EX: D called Susan and threatened to kill Mikes with whom D knew Susuan was living. Offensive or insulting language is not sufficient unless there is a special relationship between the P and D where the D knows of the P sensitivity. EX: extreme business conduct. Most places no longer require that there be a physical manifestation from the mental suffering Where a D intentionally socks the P but there is no physical injury or threat there of. o Outrageous conduct is conduct that transcends all bounds of decency tolerated by society. Only sever emotional distress is actionable. misuse of authority Abuse of Power: When D threats go beyond the ordinary means of persuasion and are then flagrant abuses of power in the nature of extortion. P must prove then that P was present when the injury occurred to the other person. When the D intentionally causes severe physical harm to a 3rd person and the P suffers severe emotional distress because of her relationship to the injured person intent and causation are harder to prove. The P was a close relative of the injured person and. D will be liable for intentional conduct as well as reckless conduct acting in disregard of high probability that emotional distress will result. Was the conduct outrageous or in reckless disregard for the possibility of causing emotional distress? Did the plaintiff suffer severe emotional distress? Did the defendant’s behavior cause the severe emotional distress? Must be present: o o o o Conduct is intentional or reckless Conduct is extreme and outrageous Causal connection between conduct and emotional distress Distress must be sever Intent 3 Types o D desires to cause P emotional distress o D knows with substantial certainty that P will suffer emotional distress o D recklessly disregards the high probability that emotional distress will occur. o Transferred Intent doesn't apply here unless the above exceptions o Next of kin may have a case for mishandling of a corpse o Public figures/officials may not recover here unless they can prove actual malice with false statements.
fraud or duress barring P access to chattel or destroying it. intent on D part to bring about a physical invasion of P real property. And P is the owner of the chattel. Any impairment of chattels condition. o Electronic trespass on computer: If D interacts with Ps computer without permission. D only has to pay damages not the full value of the property ( as in conversion) o Loss of possession: If P loses possession of the chattel for any time recovery is allowed even if the chattel is returned unharmed.Trespass to Chattel D commits this when he intentionally interferes with it by physical contact or dispossession and there is a diminished value. P may only sue if they re immediate possessions of the land. (2) D remains on Ps land without right to be there. Trespass can occur above or below land with respect to the policy need for aviation Mistake is no excuse Intent to enter onto the land is sufficient The action may be brought for anyone with actual possession of the land Nuisance is different aspect of this tort it is an interference with the use and enjoyment like loud music keeping someone up and thus not allowing them to enjoy the use of their land . quality or value is a form of trespass. without permission. or (3) D puts an object on ( or refuses to remove an object from ) Ps land without permission Intent: Intent required is merely to enter upon the land. cause the entry or remain. even if she entered rightfully. Dispossession consists of taking the chattel from Ps possession w/out consent. P must prove actual damages. Shooting a gun over the land is substantial interference thus it is treespass where airplanes are not due to policy Still trespass if you cause something to enter the land If trespass is intentional w/out proof of actual harm then P may recover. o No harm to computer data: If D conduct is rather just bothersome and does not harm the computer. Even for a short while is still trespass. All that is necessary is to satisfy this element is that there be a physical invasion of P land D need not enter onto Land: It is not necessary that the D personally come onto the land ( D floods P land throws a rock on it or chases a 3rd person on to it) A trespass to land may also exist where D remain on Ps land after an otherwise lawful right of entry has lapsed. Def: Any intentional interference with a person's use or possession of a chattel. not trespass to chattel o Harm done: computer or if data damaged then trespass to chattel occurs. D's good faith but erroneous belief that he has the right to be there is no defense Mistake to enter even fi based on thinking it is your land is not a valid defense May be above or below the surface exception for commercial aircrafts as the publics need for aviation. An act of physical invasion of P real property by D. whether this is trespass depends on the type of harm that occurs.Rule: D trespasses on Ps land when he intentionally (a) himself enters the land or causes a thing or 3rd person to enter (b) remains on the land after privileged to be there was expired or (c) fails to remove form the land something which he has duty to remove. . Def: Trespass occurs either (1) D intentionally enters P land. D mistake that he owns the chattel even if mistaken with good faith is no defense.
intent to perform the act bringing about the interference with P right of possession . severely damaging or destroying. o Withholding good: D may commit conversion by refusing to return goods to their owner if the refusal lasts for a substantial time. o Transfer to the third person: D can also commit conversion by transferring a chattel to one who is not entitled to it. Different ways to commit: o Acquiring possession: D takes possession of the property from P. Extreme trespass to chattel as to justify P to purchase it. a forced sale occurs: D is required to pay the full value of the goods (not just the amount of the use or damage ad in trespass to chattel) but gets to keep the goods.2) Ds good or bad faith. pledging). Mistake as to ownership will not be a defense typically. Forced sale: If P is successful with her tort suit. Photos are not conversion since the originals are not harmed Distinguish from trespass to chattels: Courts consider several factors in determining when D's interference with Ps possessory rights is to sever enough to be conversion to just trespass to chattels. Facts: duration of D dominion over the property. wrongful transfer(selling.Conversion Rule: Intentional exercise of dominion or control over a chattel which is so seriously interferes with Ps right to control it that D may justly be required to P its full value.An act of the D that interferes with P right of possession in the chattel. the harm done to the property and the inconvence cause to P. An act by D interfering with P right of possession in the chattel that is serious enough in nature or consequences to warrant that the D pay the full value of the chattel. Intent: Conversion is an intentional tot but all that is required is that D have intended to take possession of the property. o Destruction: Conversion may occur if D destroys the goods or fundamentally alters them. misusing the chattel Even a bona fide purchaser of chattel may become a converter if the chattel had been stolen Ct considers several factor when deciding this: duration of D domain over the property. Accidentally causing damage to or loss of another's chattel doesn't amount to conversion unless the actor using the chattel without permission when the accident occurred Is taking a pic conversion? tangible and intangible property can be subject to conversion Interference wit P chattel interests must have been legally caused by the D act or something set in motion thereby . even if there is no way he could have known that they were stolen. Intentional interference with Ps possession or ownership of property that is so substantial that D should be required to pay the property full value. Bona fide purchaser: Majority hold that a bona fide purchaser of stolen goods is a converter. intent to perform the act bringing about the interference with P right of possession Wrongful acquisition (theft. wrongful detention ( refusing to return to owner). misdelivering. and 4) the inconvenience caused to P. substantially changing. 3) the harm done to the property. embezzlement). Ds good faith or bad faith.
Defenses to Intentional Torts: Privileges Protecting Against Misconduct of P -Affirmative Defenseso Self-Defense D has a privilege to use as much force as reasonably appears to be immediately necessary to protect himself against imminent physical harm threatened by the intentional negligent conduct of another. Privilege extend when he reasonably mistakenly self-defense is necessary When a person has reasonable grounds to believe that he is being or is about to be attacked he may use such force as is reasonably necessary for protection against the potential injury. or usage of any state. withholds possession. destroys/materially alters and if value is diminished greatly by using then that is enough o Damages can be the full value of the chattel at the time of conversion plus interest.Important Factors: o Duration of D's exercise of dominion or control o Ds intent to assert a right which is in fact inconsistent with Ps right of control o D's good faith o Harm done o Inconvience and expense caused to P o Only intent required is the intent to exercise dominion or control but mistake is no defense. ordinance. .Forcible Harms as Civil Rights Violations The §1983 Claim o Was designed to protect all people and citizens from deprivation of any constitutionally protected rights. . unauthorized transfer/delivery/disposal. custom. Self-defense must be in response to an immediate threat of harm There is generally no obligation to retreat from force not threatening death or serious bodily harm Retreat is often required unless within ones own home Majority of courts do not require a retreat assuming that the threatened individual has a right to be there This is not a defense on when made reasonablyss D may use deadly force only when he reasonably believes that he is danger of similar harm and he is not required to retreat or escape. Many times can also be a suit for an intentional tort however this will bring the claim to federal court o This places the burden on the plaintiff to establish that someone usually the state or municipal officer acted under the color of state law and that the action deprived the plaintiff of a federal right Exemplars of the Constitutional Violations Every person under color of any statute. territory or DC cant be deprived of any rights. regulation. o This can occur thru moving chattel. privileges or immunites secured by law or under the constitution shall be liable to the party injured in the action at law or the redress o Designed to prevent states from denying freed persons the rights given to them by the federal govt it is not limited to racial discrimination . acquiring possession.
not redress past harm. Restatement: D may use non-deadly force rather then retreating. Danger must be serious: D may not use deadly force unless he himself is in danger of death or serious bodily harm. Self-defines is purely a forward=looking idea: D is entitled to prevent imminent future harm. Degree of force: Only the degree of force necessary to prevent the threatened may be used. but also where D reasonably believes that there is one. Retaliation: cant do this for a tort already committed. Imminence: D may not use force to avoid harm which is not imminent unless it reasonably appears that there will not be later chance to prevent the danger. A person is entitled to use reasonable force to prevent any threatened harmful or offensive bodily contact and any threatened confinement or imprisonment. Privileged to use reasonable force to defend against a battery or false imprisonment If a mistake then you are privileged to use reasonable force to forestall the attack and minimize the effects Insults and provocation is not merely enough Def. Deadly force: Special rules limit the use of deadly force ( force intended or likely to cause death or serious bodily injury. If D uses more force than necessary. especially purely verbal harm. Not applicable for retaliation Retreat Not Necessary: Majority of the courts hold that one need not attempt to escape but may stand his ground ( and even use deadly force when necessary to prevent death or serious bodily harm to himself). Retreat: Courts are split on whether an dwhen D has a duty to retreat if the threatened harm could have been avoided this way. Verbal provocation: D may not use self-defense in response to verbal provocation such as taunting or insults. but D may not used deadly force in lieu of retreating except if attacked in his dwelling by one who does not reside in the dwelling. Modern trend would impose . he will be liable for damage caused by the excess. Only for protection: Applies only where D uses the force need to protect himself against harm. Apparent necessity: Self-defense may be used not only where there is a real threat of harm. When Is Defense Available? Reasonable Belief: The actor need only have a reasonable belief as to other party's actions (apparent consent not actual consent is sufficient).
If the owner parts willingly with possession and n event then occurs which gives him the right to repossess the set.o a duty to retreat before using deadly force where this can be done safely unless the actor is in his own home. Wrongful taking: The privilege exists only if the property was taken wrongfully from the owner. many courts give the merchant a privilege to temporarily detain the person for investigation. If more force then necessary is used the you lose the privilege. Cant use deadly force unless you reasonably believe that is what is coming. just long enough to determine whether the person has really . because A's original possession was not wrongful. You can use only that force reasonably appears to be necessary to prevent the harm. Fresh Pursuit: The privilege exists only if the property owner is in fresh pursuit to recover his property. If in the course of defending oneself then you accidentally injures a bystander then you are still protected by the defense. If you however deliberately injury a bystander in trying to protect yourself them you probably cant use privilege Recapture of Chattels A property owner has the general right to use reasonable force to regain possession of chattels taken from her by someone else. Merchant: Where a merchant reasonably believes that a person is stealing his property. Never use deadly force. generally 10 or 15 minutes or less. That is the owner must act without unreasonable delay. if the other uses deadly force against an aggressor who had only used non-deadly force the aggressor may defend himself with deadly force. If a merchant or their security agents acts in good faith us allowed to act under this law Immunity for liability is under 3 reasonableness requirement: Must be a reasonable cause to believe that the person violated this Manner of the detention and the actions taken in an attempt to detain must be reasonable The length of time of the detention and the actions take to detain them Must be in vicinity Limited time: The detention must be limited to a short time. Not Available to Aggressor: The initial aggressor is not privileged to defend himself against the other party's reasonable use of force in self-defense. Imminent pursuit Reasonable force: The force must be reasonable and deadly force can never be used. However.
Then. o D is privilege to defend another person is the same reasonably standards as he would to protect himself. the police must be called (the merchant may not purport to arrest the suspect himself. and may not use deadly force to repel a non-deadly attack. Same rules apply in self-defense: the defender may only use reasonable force. o shoplifted or not.) Merchants may use reasonable force to detain a suspect however if they are wrong can be liable for false imprisonment Defenses of 3rd Person (Others) Rule: A person may use reasonable force to defend another person against attack. he will not be liable even if it turns out that there was no probable cause of the procedures used to get the warrant were not proper. But the restatement gives a reasonable mistake defense to the intervener. Even when the person aided has no defense his defender is not liable as along as he reasonably believed that the person aided could have used force to protect himself. Police are allowed to err more because they have the right of good faith Private individual only has the right to detain for felonies or misdeameanors committed in you presence Arrest without warrant: Officers are privileged to make an arrest with a warrant. Reasonable mistake: Courts are split n this effect holding that intervener steps into the shoes of the person sided. Defender assuming he is justified may use a much force as he could have used in self-defense if the injury were threaten to him Arrest and Detention (Authority of the Law) Arrest with warrant: Where a police officer executes an arrest with an arrest warrant that appears to be correctly issued. Also if there is probable cause to believe that a felony was committed Private persons have no privilege to arrest for misdemeanor unless they are present when it happens Private ppl under some circumstances are privileged to make a felony Merchants must use a reasonable standard to detain a person on premises and they are given slight leeway to detain a person off premises . If Dis under a duty to protect another or their chattel from harm then he is privilege to use reasonable force Actor need only a reasonable belief that the person being aided would have the right to self defense. and thus bears the risk of a mistake.
) Misdemeanor: Common law no warrantless arrest (either by an officer or by a citizen) may be made for a past misdemeanor not involving a breach of the peace. Cases: Peters: Under Wisconsin stat a merchant is immune from suit for actions taken while attempting to detain a suspected shoplifter beyond the merchants premises. Past felony: Once a felony has been committed then an officer may still make a warrantless arrest as long as he reasonably believes that the felony has been committed and that it is the right person. Prevention: Where the arrest to made to prevent a felony which threatens life or safety even deadly force may be used if there is no other way to prevent the crime. Most common types of acts are arrest and prevention of crime One who makes an arrest under the mistaken belief that it is privileged may be liable for false imprisonment Shopkeepers Privilege may have privilege to reasonably detain ppl who they reasonably believe to be in possession of goods. One acting under the authority of the law is privileged in some circumstances to commit intentional torts but they must exercise discretion and proceed in good faith. Reasonable force: One making an arrest may not use more force that is reasonably necessary. But where the felony does not involve such danger force may not be used. A citizen may do the same. Justification o A merchant is immune from suit for actions taken while attempting to detain a suspected shoplifter beyond the merchant's premises. . unless it reasonably appears that violence or harm will occur immediately. A citizen may make an arrest only if a felony has in fact been committed (though the citizen is protected is she makes a reasonable mistake and arrests the wrong person. Defense of Property A person may generally use reasonable force to defend her property both land and chattel. Warning required first: Owner must first make verbal demand that the intruder stop. Felony or breach of peace in presence: A police officer may make a warrantless arrest for a felony or for a breach of the peace if the offense is being committed or seems about to be committed in his presence. or that the request will be useless. Apprehension after crime: when a crime has already happened the police may use deadly force only if the suspect poses a significant threat of death or serious physical injury to others.
Possession of Land D who is entitled to the immediate possession of land may peacefully retake their land without liability and is not subject to trespass. The use of rigged spring guns. A possessor is privilege to use reasonable force to expel another or a chattel from his land or to prevent another imminent intrusion upon or interference with his land or chattels or to prevent his dispossession even if the conduct would otherwise be a tort?? The possessor must request the intruder resist unless it cant be made before harm is done or it seems useless. The threat must be imminent Mistake as to danger: if D mistake is about whether force is necessary. and 2) the owner reasonably believes that without deadly force. a. Burglary: Homeowner is generally allowed to use deadly force against a burglar. D is protected by a reasonable mistake. Mistake: Effect of a reasonable mistake varies: Deadly force: Owner may use deadly force only where 1) nondeadly-force will not suffice. death or serious bodily harm will occur. Mechanical Devices: An owner right to use a mechanical device to protect her property only if she would be privileged to use a similar degree of force if she were preset and acting herself. b. the owner's use of force will not be privileged. Reasonable force may be used to protect property but not such force as will take human life or inflict great bodily harm. and attack dogs make the D liable if they inflict harm that he would not have inflict had he been there all in all not a good idea. But if the owner is mistaken as to whether the person has the right to be there that is not privileged and thus they can be liable. provided that she reasonably believes that nothing short of his force will safely keep the burglar out. Mistake not a defense in this area Forcible Retaking of Chattel D must be in fresh pursuit and first demand its return then and only then can reasonable force be used. Reasonable mistake: An owners right to use a dangerous mechanical device in a particular case will be measured by whether deadly force could have been used against that particular intruder. You an defend others but you must be right Privilege: But if the owner's mistake is about whether the intruder has a right to be there. Force likely to cause death or serious harm is not privilege unless it is equal. . May use the amount of force equal to the threat but use only the minimal force required.
Must use reasonable force You can recapture your property only from the tortfeasor or 3rd person who knows or should know that the chattel was tortiously obtained but if they do not know then you loose that privilege to recapture One may use reasonable force to defend property. The only can you recover from wrongdoer not 3rd innocent unknowing party Reasonable force is used to recapture not deadly or serious bodily harm. Force can be used only when in hot pursuit of the person who took it. and mental condition of the child. sex. You may not use force that will cause death or serious bodily harm. One may not use indirectly deadly force such as a trap or spring gun. physical. Force is reasonable given the circumstances One my use reasonable force to prevent the commission of the tort against her prop Entry Upon Land to Remove Chattel On Wrongdoers Land: privilege to enter after a reasonable time and in a reasonable manner On Land of Innocent Party: same as above notice of presence to remove must be given A request to desist must preceded the use of force unless the circumstances make it clear that the request would be futile/dangerous. 1st you must deman the return. Entry Upon Land to remove Chattel On Wrongdoer's Land: Where chattel are located on the land of the wrongdoer. right to enter upon another's land to recapture chattels. that privilege supersedes the privilege of the land possessor to defend her property. Chattel owner will be liable for any actual damage cause by entry. Discipline Parent: Privilege to apply reasonable force or impose reasonable confinement upon his child as he reasonably believes necessary for control. the age.o Reasonable force may be used to protect property but not such force as will take human like or inflict serious bodily harm. When another possess your land you can peacefully try to recover it. Whenever an actor has a privilege to enter upon the land of another because of necessity. When recapturing your chattel This defense is limited to preventing the commission of a tort against the D prop. the nature of the offense and necessity of compelling obedience . the owner may enter and reclaim her chattel at a reasonable time and in peaceful manner when the landowner has been given notice of the presence of the chattel and refuses to return it. Cases Reasonable force may be used to protect property but not such force as will take human life or inflict great bodily harm. training or education The reasonableness depends upon whether D is the parent. right to re-entry.
Persons privileged to enter without consent: Firemen.if it reasonably seemed to one in Ds position that P consented.2) immediate action is necessary to save Ps life or health. control. Loco Parentis: privileged of parents extends to persons having responsibility for custody. Lack of capacity: Consent will be invalidated if P is incapable of giving that consent because she is a child.4) a reasonable person would consent int he circumstances. . policeman. D will not be liable for that interference. incompetent) Risk of bodily harm if treatment delayed A reasonable would consent Physician had no reason to believe patient would refuse Implied consent: Existence of consent may also be implied from Ps conduct. Teachers must have a process before discipline and the bus driver can kick a kid off the bus who is being disruptive Even where children are permitted to sue their parents the parents still maintain this privilege as long as they exercise reasonable force o However. teachers and others do not share the same privilege as parents/guardians Consent Express consent: If P expressly consents to an intentional interference with his or her person or property. training or edu of a child except so far that the parent has restricted their authority to do so. 3) there is no indication that P would not sent if able. Must be administered in good faith and w/out malice but with purpose A parent or teacher may use reasonable force in disciplining children. consent exists regardless of P's subjective state of mind. etc Consent as a matter of law: Even if P is incapable of giving that consent. D will not be privileged if he goes substantially beyond the scope of that consent. Objective manifestation: It is the objective manifestation by P that counts . taking into account the age and sex f the child and the seriousness of the behavior. consent will be implied "as a matter of law" if these factors exist: 1) P is unable to give consent. intoxicated. Exceeding scope: Even if P does consent to an invasion of her interests. public officials You can revoke consent at any time Power relationships there is no consent given the type of relationship If one has an STD and doesn't warn partner nor provides any protection then it is a battery Medical Care Providers are not liable if: Patient is not able to give consent ( unconscious. or from the circumstances. mentally ill. from custom. intoxicated. unconscious.
Express (actual) Consent: exists where the P has expressly shown willingness to submit to D conduct Consent by mistake then the consent is still valid unless D cause the mistake or knew of the mistake and took advantage of it Consent Induced by Fraud: If the expressly given consent has been induced by fraud the consent generally is not a defense. Apparent Consent: Is that which a reasonable person would infer from P conduct. Consent may be given expressly. Somebody who voluntarily engages in a body contact sport impliedly consents to the normal contacts inherent in playing it. Children can consent to things that are age appropriate. Implied Consent: P consent may also be implied in a case. IMFORMED CONSENT ASK BLACK Duress negates any consent given. Emergency: In the surgery case an emergency may justify extending the surgery beyond consented to Consent to criminal acts: Where Ds act against P is a criminal act courts are split. Intoxication and Mental Incapacity will negate consent Implied Consent: When an emergency actually or apparently threatens ones life of serious injury and there is no opportunity to btai consent it is implied Once consent is given to D conduct then P can' t complain of the consequences no matter how unforeseen. conduct or words or by law. Consent is valid whether it is verbally communicated or not thru actions Ps words or conduct manifesting consent are sufficient to create a privilege to D to actin light of apparent consent even if Ps actual state of mind (unknown) was to the contrary. P can't consent to a crime A D is not liable for an otherwise tortious act if the P consented to the D act. D privilege is limited to conduct that is consented to. Defense to almost any tort but applied most frequently to intentional torts. Consent can be conditional or limited If P misunderstands what they consented D to then that consent is still valid until P communicates that to D. Majority rule is that P consent is ineffective if the act consented to a crime. Consent obtained by duress may be held invalid. it may also be implied from custom. o Inferred from Usage and Custom: Such consent may also be inferred as a matter of . Consent can be inferred thru social/cultural customs or from prior dealing with the other party/ existence of a relationship of some sorts Consent can only be given if one has the capacity to do so. Fraud must go to an essential matter.
Consent of parent or guardian is necessary to constitute a defense. You can consent to a crime Children can only consent to things that are age appropriate C. but if the actual damage occurs P must pay for the damage she has caused. but our system requires compensation be made. and young children are deemed incapable of consent. o o o o May be invoked when D in the act of defending himself or his prop from some threat or serious harm for which P is not responsible intentionally does some act reasonably deemed necessary toward that end which results in injury to Ps property and which would otherwise be a trespass or conversion a. If the danger affect an entire community or so many persons that the public interest is involved the privilege is complete and D's tort liability is entirely excused c. Consent will implied in an emergencey situaion where the P s incapable of consenting and a reasonable person would conclude that some contact is necessary to prevent death or serious bodily harm ( surgery when the person is unconscious) Capacity Required: Incompetent. A person is presumed to consent to the ordinary contact of daily life ( minor bumping in a crowd) Consent Implied by Law: This is when an action is necessary to save a person's life or some other important interest in person or property.usage or custom. drunken ppl. b. o Actual damage: When it exists then it will be complete defense to a tort claim where P has suffered no actual substantial harm. o Private necessity: If a person prevents injury to himself or his property or to the person or property of a 3rd person. the privilege is that of public necessity. Here no compensation has to be paid by the person doing the damage. A privilege to damage property to avert threatened disaster when necessary in exigent circumstances. this is protected by the privilege of private necessity if there is no less-damaging way of preventing the harm. Owner may not resist: Main purpose is to prevent the person whose property might be injured from defeating the exercise of the privilege. o Public necessity: If the interference with land or chattels of another is necessary to prevent a disaster to the community or to many people. Public necessity may require the taking of private property for public purposes. Private Necessity: If the danger threatens only harm to Ps property then the privilege to commit the act or trespass or conversion subjects him only to compensatory damages ( damages only to replace the lost/damaged item) . 1. Privileges not based on P conduct Necessity o Rule: D has the privilege to harm the property interest of P where this is necessary in order to prevent great harm to 3rd persons or to the D herself.
Cases Suroccco: the law recognizes a privilege to damage property tp avert threatened disaster when necessary in exigent circumstances. Law recognizes a privilege to damage property to avert threatened disaster when necessary in exigent circumstances Public necessity may require the taking of private property for public purposes. the defense is absolute is teh act is to benefit the owner of the land. but our system of jurisprudence requires that compensation be made.Negligence occurs when D's conduct imposes an unreasonable risk upon another which results in injury to that other. e. is the burden greater the the cost or vice versa is a test the court may use to see if a duty was breached EX: if a warning of possible danger is all that is required then that is free and thus there can be a breach of duty foreseeability of injury that occurred Evidence that the D violated customary safety precautions of the relevant community is usually sufficient to get the P to the jury . and it must design against the reasonably foreseeable risk attending the use in that setting. A manufacturer is required to “anticipate the environment on which its product will be used. Negligence IV. The negligent tortfeasor mental state is irrelevant. it must design against the reasonably foreseeable risks attending the product’s use in that setting. the scope of privilege under the necessity doctrine is D's reasonable belief that his act is necessary is sufficient. Carelessness some what but more so. 2. (2) the gravity of the resulting injury. but our system says compensation must be made where the act is for public good the defense is absolute Where the act is solely to benefit a limited number of ppl (the actor ties up his boat to another dock in a storm) the defense is qualified (the actor must pay for any injury he causes). and (3) the burden of adequate precautions. Vincent: Public necessity may require the taking of private property for public purposes. Breach of duty: A failure of D to conform his conduct to this standard.5 Components of a prima facie case ( has to prove all elements) 1. to prevent against resulting injuries is a function of three variables: (1) The probability of the kind of incident in question. But his conduct must be reasonable to the extent of threatened harm in relation to the foreseeable damage to Ps property. .” and thus bore liability in connection with the design and maintenance The owner’s duty. Negligence . Duty: legal duty requiring D to conduct himself according to a certain standard so as to avoid unreasonable risk to others. as in other similar situations.o o o o o o d.
not relevant. o Which factors are relevant when applying the RPP standard? Physical disabilities: relevant. as a matter of policy. sudden physical incapacity: would need to take a case-bycase approach. Doesn't immunize D from total liability if Ds activity is unreasonably dangerous . i. . insanity: can’t conform their conduct any other way.Warning: One of the ways the risks of conduct can be reduced is by giving warnings of danger. youth: reasonable standard for someone of that age. Standard: Reasonableness of D conduct is viewed under an objective standard. relevant. Actual damage suffered by P.The reasonable person 1. if you're intoxicated then you still are expected to adhere to the same level of reasonable care—not a defense. P needs to prove D created and failed to take reasonable actions to reduce the amount of the hazard D did not directly create the condition but discovered or should have discovered a condition created by others and failed to take reasonable steps to prevent injury from that condition D mode or method of business operations made if foreseeable that others would create a dangerous condition and the D failed to take reasonable measures to discover and remove it 3. Causation: A showing that Ds failure to at with reasonable care was the cause in fact of the injury to P. Would a reasonable person of ordinary prudence have acted the same in the circumstances. A reasonably close causal connection btwn the conduct (D neg act) and rhe resulting injury (harm suffered by P). relevant. Failure to warn itself can be neg when D knows about and the warning could have been easily given the mere failure to warn can itself constitute negligence. or the general public will make D less likely to be found liable for neg. The fact that D gave a warning of dangers to P in particular. Proximate cause 4. but they are still expected to act as anyone else. Typically means the but-for cause ( a cause without which the injury wouldn't have occurred). 5. o Departure from the custom of the community or of others in like circumstances in a way that increases risk is evidence of that person neg but does not require a finding of neg D who complied with all the safety requirements of a statute might still be neg if failed to follow a safety Custom might prove that the D knew or should have known of the risk 3 common theories of liability o lawyers have created several when P slips and falls to prove D neg. then you shouldn’t have done it. old age is not relevant unless it produces physical/mental disabilities. sometimes it is foreseeable (if you have had a heart . Proximate cause: A sufficiently close causal connection between D's act of negligence and the harm suffered by P that it's fair to hold D liable. exceptional physical ability: must hold to the same level of reasonable care as a person of the same ability…if you are strong and could have avoided the problem by exercising your strength.
g. D must merely behave as a reasonable person would have when i the same situation not a person with plenty of time to think. Intoxication: No defense still held to reasonable sober person standard. D will be charged with what he knew or observed or should have known bc a reasonable person would have known d. If D is confronted with a sudden emergency that requires rapid decision that is taken into account in determining the reasonableness of the actions taken. It may be neg to prevent protection of another if the activity is under D control so as to subject another to an unreasonable risk or harm. k. The standard or care is reasonable care under the circumstances. 5. D's conduct during a period of sudden incapacitation or loss of consciousness resulting from physical illness is neg only if D ought to have foreseen such incapacity and was neg in failing to take reasonable precautions to prevent its occurrence i. D must reduce the risk so far as reasonably possible. Emergencies: If D is confronted with an emergency and is forced to act with little time for reflection. Weigh each side out. non paying party no duty a. Objective Test: Whether D's conduct was that of a hypothetical "reasonable prudent person" placed in the same similar circumstances. Custom: may be used to help eliviate the level of liability. any conduct may be neg under the circumstances. It may be neg to fail to warn or instruct another so that he can take proper precautions for his own safety. Children: held liable to the level of conduct of a reasonable person of that age and experience not that of an adult unless they are engaging in adult activities. breach of that duty by the D.that the breach of duty by the D was the actual and proximate cause of the P injury and . b. A reasonable person has limited ability to anticipate the conduct of others. 3. However a child is treated like an adult when they engage in adult activities.attack before. Physical and mental characteristics: Whether D behaved reasonably under the circumstances generally include the physical characteristics of himself. 4. Parental Supervision: A parent has a duty to exercise reasonable care to supervise the conduct of his or her minor child to prevent the child from intentionally harming others or posing an unreasonable risk of harm to others. intoxicated it does not matter his conduct is measured against others in that same circumstance f. lack of preparation or misrepresentation.Automobile guets statutes 1. i. j. i. Elements: the existence of a duty on the part of the D to conform to a specific standard of conduct for the protection of the P against an unreasonable risk of injury. lack of competence. Minors are tested to what a child of the same. it would be relevant). Mental characteristics: If D is stupid this is not a defense iii. insane. Neg can be failure to act. A risk is seen as unreasonable when there is a probability that the harm will result in conjunction with the gravity or seriousness of the potential harm. iv. h. c. age. If D is mentally incompetent. . D need only protect others against unreasonable risks of harm. intelligence and experience under the circumstances would do. If D is physically definency then his conduct is measured against others with the same characteristic e. mental disability would not be a relevant factor 2. . If D is physically disabled then the standard is what a reasonable physically disabled person would have done ii. damage to the P person or property c.
taxicab drivers. It is assumed that an ordinary. social value of activity/goal.A duty by D to act or refrain from acting b. 2. conduct is in reckless disregard of the safety of another aka willful and wanton misconduct when D knows or has reason to know that it creates an unreasonable risk of harm and the risk is relatively high either in degree or in the probability that harm will occur. Common carriers like pilots. Reckless conduct lacks that certainty of result. People responsible for dangerous instrumentality like explosives must exercise a high degree of care. are said to owe their passengers the highest degree of care consistent with the mode practical operation of business. profession or other group is relevant but not conclusive. 3. Reckless conduct is diff from intentional conduct bc intentional conduct is when D either intend to bring about the consequences or knows that they are substantially certain to occur. . reasonable person. prudent. amusements park devices. Neg conduct merely creates an unreasonable risk. Special relationship: A duty may arise to give assistance may arise out of a special relationship between D and P. A. You weigh the magnitude of the risk against the burden of alternative conduct. In determining whether conduct was neg the customary conduct of the community. D has a duty to exercise reasonable care to avoid subjecting others and their property to unreasonable risks of physical harm. The most important situations are 1) D generally has no duty to take affirmative action to help . Reckless Conduct 1. D must be conscious or a reasonable person in D's situation would have been conscious that the conduct creates a relatively high risk of harm to another. Like for Dr's they follow customary conduct to the profession standard of care o. Conduct is intentional when D either intends to bring about the consequences or knows that they are substantially certain to occur.Probability seeks to look at the likelihood of the harm-causing occurrence taking place. The burden is weighed against the cost 1. UNLESS if D injures somebody negligently he has a duty to act and if D injures somebody innnocently by creating a dangerous condition without negligence he has a duty to take action to help . p. and D has no duty to avoid causing pure economic loss . Probability must be considered in relation to the magnitude and burden. 4.Old age is not taken into account in setting of standard of care . n.Exceptions to this rule: 1. 2) D generally has no duty to avoid causing unintended mental suffering to P. . prudent.Conduct of an actor with a physical disability is negligent only if it does not conform to the reasonably careful person standard with the same disability .So if D sees that P is in danger and fails to render assistance (even though D could do so easily and safely) D is not liable for refusing to assist. m. reasonable person will take precautions against creating unreasonable risks of injury to other persons. relative cost. . where there is a slight likelihood of harm it is doubtful that the D breached. no awareness of that risk is required.Failure to Act: No general duty to act thus a person cant be liable on the grounds that she failed to act solely. Reckless conduct lacks that certainty of result. the cost can include feasibility of alternative safe conduct. industry. q. Duty: The general prudent person standard a. trains. For conduct to be reckless.When a person engages in an activity he is under a legal duty to act as an ordinary.l. .
P2 can recover only if she can est that a reasonable person would have foreseen a risk of injury to her circumstances that she was located in a foreseeable zone of danger .an employer with its employees . . -Basic Standard "the reasonable person": D conduct is measured against a reasonable.Rescuers: D is liable if he negligently put himself or 3rd person in peril and P is injured in attempting to rescue. . .A duty of care is owed only to foreseeable P . A car driven by D strikes P a pedestrian. their joint pursuit might be enough to give rise to a duty on each to aid the other 4. The fetus must have been viable at the time of injury. Duty to control others: If D has a duty to control the third person D can be found negligent for failing to exercise that control..a custodian with those in its custody 2.Special relationship: Some courts have now held that any business open to the public must protect its patrons from wrongdoing by third parties. ordinary prudent person.D owes a duty of care to anyone who suffers injuries as a proximate result of his breach of duty to someone .A common carrier with its passengers . If 2 friends went on a jog together or on a camping trip. .Particular Standards of Conduct: Some ppl have a diff standard of conduct diff from the ordinary person .Firefighters rule: . This is true even if D acted without fault. 3. Assumption of duty: Once D voluntarily begins to render assistance to P (even if D was under no legal obligation to do so ) D must proceed with reasonable care.Prenatal Injuries: Are actionable a duty of care is owed toward a fetus.a school and its students . D and victim as co-venturers: Where the victim and the D are engaged in some common pursuit so that they may be said to be co-ventures some courts have impose on the D a duty of warning and assistance. D involved in injury: If the danger or injury to P is due to Ds own conduct or to an instrument under Ds control.Wrongful Life Action Not Recognized: The failure to diagnose a congential defect of the fetus or to properly perform a contraceptive procedure does not permit the unwanted child to recover damages for wrongful life even if the child is born handicapped. Common law duty to stop and give reasonable assistance to P. . Low IQ or insanity is no defense. .Preventing assistance by others: if D began to render assistance then disuaiding others from helping P. . D can be found liable for failing to protect P from third persons . D has the duty of assistance. .It is assumed that the D and P have the same physical characteristics but if D knows that P is mentally or physically handicapped then he has a duty to exercise the care ot a person with such knowledge. 5.D is deemed to have the same knowledge as an average member of the community.A Business or other possessor of land that holds its premises open to the public with those who are lawfully on the premises. .Innkeeper with its guest .D must act as would a person with average mental ability.
EX: whole on would not be liable for natural collections of ice on the sidewalk but might be liable for negligently permitting water to drain off his roof and form ice on the sidewalk.Children: A child is required to conform to the standard of care of a child like age.In the event of an emergency there is little time for reflection thus D must act as a reasonable person would under the same emergency. Professionals: A person who is a professional or has special skills is required to possess and exercise the knowledge and skill of a member of the profession or occupation. EX: One is not liable for bug that line in trees on ones land but that visit the neighbors from time to time .Standard of Care Owed by Owners .Duty to Disclose Risks of Treatment: A doctor proposing a course of treatment or surgical procedure has a duty to provide the patient with enough information about its risks to enable the patient to make an informed consent to the treatment. Stewart: Under the reasonableness standard Cases: o Stewart: Under the reasonable care standard the level of care must be proportionate to the danger involved in the act.Duty to Those Off the Premises . If the undisclosed risk was serious enough that a reasonable person in the patient position would have withheld consent to the treatment the doctor has breached this duty.Natural Conditions: General rule is that a landowner owes no duty to protect one outside the premises from natural conditions on the land. Medicine is a national standard of care . . education. o Bjorndal: ..etc invitees d. .Conduct of Persons on property: An owner of land has a duty to exercise reasonable care with respect to his own activites on the land and to control the conduct of others on his property so as to avoid unreasonable risk of harm to others outside the property Duty to licensee. . tresspassors. Thus a specialist might be liable where a general practitioner may not be. . Nature and Scope of Risk e. ..Duty to Protect Passersby: Duty to take due precautions to protect persons passing by from dangerous conditions .AGES OF CHILDREN . . Relationship btwn P and D 1.DUTY TO BAILER AND BAILEE? c.Artificial Conditions: There is also no duty owing for artificial conditions Exception (1) a landowner is liable for damage caused by unreasonably dangerous artificial conditions or structures abutting adjacent land. It cant be an emergency under the D making.The duty owed by the driver of an automobile to a rider is one of ordinary care must refrain from gross. intelligence. wanton or willfull misconduct. and experience. Typically D is not subject to liability to P unless D breached a duty owed to P and not to someone else. . Important factors include a pre-existing relationship btwn P and D. the nexus btwn D and P's injury and reliance by P upon D to protect him. Cases 1.Common carriers and Innkeepers are required to exercise a high degree of care toward their passengers and guests.1. In some cases duty owned depend on where the event occured .Children who engaged in adult activity like driving a car are held to an adult standard of care. foreseeability of harm.
Custom or usage may be introduced to et the standard of care D would have violated a stat RES IPSA LOQUITOR a. o Chaffin: It is not negligent as a matter of law to continue driving while blinded due to oncoming headlights. o Impson: Unless a legitimate excuse for noncompliance is offered. o T. o Stinnett: Evidence of negligence must exist o Bernier: The maker or distributor of a product must anticipate the environment in which the product will be used. a drivers failure to prevent such conduct may constitute a breach of the driver's duty to other passengers and the public. o O'Guin: For a P to recover under violation of a statute under neg per se the P must be a member of the class of persons the statute seeks to protect and the plaintiff harm must be the type of harm that statue was designed to prevent. o Indianan Consolidated Insurances: One who is confronted with an emergency not of his making is not negligent if he acts accordingly to his best judgment.Creasy: a person with mental disabilities is generally held to the same standard of care as that of a reasonable person under the same circumstances w/out regard to the alleged tortfeasor's capacity to control or understand the consequences of his actions. o Carroll Towing: there is a duty of care to protect others from harm when the burden of taking adequate precautions is less than the product of the probability of the resulting harm and the magnitude of the harm.J. Assessing Reasonable Care by Looking at Foreseeable Risks and Costs Looking at Responsibility When More Than One Person Is Neg Cases: o Pipher: When it is foreseeable that the actions of a passenger may interfere with a drivers ability to operate the vehicle safely. o Robinson: A child will be held to an adult standard of care when he engages in an inherently dangerous activity. o It must be shown what in fact happened (that there was a duty) o Must be shown from the fact that the D acted unreasonably. violation of a statute causing injury is neg epr se. Proof of what happened may be est by either direct or circumstantial evidence. B. such as driving a car.Hooper: Common standard of care in a given industry or relevant community it is nevertheless not conclusive but rather must meet the test of reasonable prudence. o . o Santiago: reasonable interferences? o Upchurch: The resolution of disputed facts is duty that devolves upon the finder of fact(jury) o Thoma: to recover for injuries incurred in a slip-and-fall accident. Breach of Duty What is the standard of care required (reasonable or ordinary? Professional? higher standard due to dangerous instrumentality? lower due to emergency? Did D breach that standard? Res Ipsa locquitur? Custom? When D conduct falls short of that level required by the applicable standard of care owed to the P she has breached her duty. the P must show that the owner of the premises either created a dangerous condition or had actual or constructive knowledge of a dangerous condition.
o Negligence most likely by D (exclusive control): Negligence was probably that of the D. P has no direct evidence of how D behaved in connection to the event. This requires that the P prove that the accident was more probably than not Use this when the P can not for certain show that D was a direct cause Used when circumstances of the accident itself because they bespeak negligence even without a more a more specific showing of the chain of events In res ipsa cases based on the evidence about the accident itself allows the jury to infer that it must have resulted from some negligent act by the D P use this when there no showing of exactly how the accident happened but the fact that it happened at all suggests that someone was probably negligent Allows the jury to make some inference about the negligence that most of us would make from our common experience P can make a case by showing: . 4 requirements o No direct evidence of Ds conduct. P only has to prove that most of the time negligence is the cause of such occurrences. If P makes a prima facie showing that his injury was caused by an instrumentality or condition which was under D's exclusive management or control at relevant times and in the ordinary course of events.o Byrne: Where an accident could not have happened in the absence of a D neg a P doesnt have to prove the D neg. Effect of Res Ipsa Loquitor: Permits an inference that D was negligent even though there is no evidence of negligence.Res Ipsa Loquitor Means simply the thing speaks for itself. P need not show that Ds negligence was the only possible explanation only that the inference that it was D's negligence outweighs the sum of the other possible causes In many cases the P will have circumstantial evidence that a jury could reasonably infer that the D was neg. D was probably negligence. Typical Context: Airplane accidents (airplanes don't usually fly into an obstruction in good weather then a dead passenger will be deemed to have established negligence merely by showing that the plane crashed into an obstruction in good weather. This allows P to point to the fact of the accident and to create an inference that even without a precise showing of how D behaved. Or that negligence is more likely then not to be D than by someone else. o Car accidents this is also applicable but not in multiple vehicle accident because other ppl cant be sufficiently eliminated by the evidence. This is easier to show when there is only one care involved in the accident. P's harm would not have occurred unless D was then and there neg then the jury instructed on res ipsa loquitor and may infer D was neg. o Seldom occurring without negligence: P must demonstrate that the harm which occurred does not normally occur except through the negligence of someone. .
.The D has acted negligently. it must first be a cause in fact of the injury . C.had D not acted negligently. since it would have been sufficient to bring about injury. EX: Sparks from D's locomotive start a . This happens where two events concur to cause harm. Helpful when there are multiple D .Negligence is a cause in fact of the harm of the harm of another if it was a substantial factor in bringing about that harm.Concurrent Causes: Sometimes D conduct can meet the cause in fact requirement even though it is not a "but for" cause. or two persons causing a single indivisible injury -But for test is used to determine whether the D act was a cause in fact of the P harm. P injuries would not have resulted. D1 is viewed as a "cause in fact" o he was injured by an accident that would not ordinarily happen without negligence o that the negligence is more likely that not attributable to the D rather than to the P or a 3rd party o the thing must be under the control of the D or show that no one else could have done the negligence o even if the D did not have exclusive control of the source of harm then as long as the P can demonstrate that the negligence was likely that of the D rather than other parties o P must show not simply that the accident happened but that it would not have happened without D negligence It tells the jury that they may conclude that the D was negligent. and the P was one of the persons subjected to that risk. Harm and Causation in Fact ( Actual Harm and Proximate Cause) a.as long as D1 was also a "but for" cause.3 rd element means a legally recognized harm b.Joint tortfeasors: There can be multiple "but for" causes of an event.P must show that Ds conduct was the cause in fact of Ps injury i. if they find that it was the type of accident that does not ordinarily happen without negligence.Dominant test for causation . Cases: o Warren: Res Ipsa doesn't have to apply where the neg of D is not only reasonable explanation for an occurrence. Actual Harm . The D conduct is the cause of the event if the event would not have occurred but for the conduct. Cause in Fact: Before the D conduct can be considered a proximate cause of P injury. conversely the D conduct is not a cause of the event if the event would have occurred without it . and that the thing which caused it was under the D control at the time of the negligence . and either one would have been sufficiently to cause substantially the same harm without the other. Can be 2 persons causing separate or divisible injuries.Substantial Factor Test: requires that the D materially contributed to the P injury. D1 cannot defend on the grounds that D2 was a "but for" cause of P's injuries . Each of these concurring events is deemed a cause in fact of the injury. and the P actually suffered harm of the kind risked by the D . and the negligence created an identifiable risk. But-for test: Majority of the time P shows "cause in fact" is to show that D's conduct was a "but for" cause of P's injuries .
Class action suit where ppl show . Either fire alone would have been sufficient to burn Ps property. Most often in toxic tort and other mass-tort. the court will require each of the Ds to pay that percentage of Ps injuries which that Ds sales bore to the total market sales of that type of product at the time of injury. joint and severally liable o Joint and several liability generally: D may argue that they are not join tortfeasors acting in concert but that they are jointly and severally liable. o Indivisible versus divisible harms: Several liability is in force where Ps harm is indivisible not capable of being apportioned between or among the D each will be responsible only for the directly attributable harm. but some courts now allow recovery for such damage. Multiples fault: If P can show that each of two (or more) D was at fault. Indemnity: Sometimes the court will not merely order two joint and severally liable D to split the cost but will instead completely shift the responsibility from one D to the other. If they act in concert then apportionment does not take place. Successive injuries often courts are able to apportion harm if the harms occurred in successive incidents separated by substantial periods of time. Depending upon how socially valuable the product is (like a vaccine) the less likely the court will apply this. o No joint-and-several liability: Courts adopting the "market share" approach often reject joint and several liability. If more then one person is a proximate cause of Ps harm and the harm is indivisible each D is liable for the entire harm. As J&S liable. since it is not clear whos bullet struck P they would both be exonerate unless P could show who was directly responsible. but only one could have caused the injury. not yet followed by actual damage: If the increased risk is one that the P is predicting will happen later but the damage has not yet occurred the courts will likely deny this. One when capable of apportionment?? EX: D negligently scratches causing her to lose her arm. Unless he can show that it is more likely than not to occur eventually. but not clear exactly which people have been injured. Increased risk. Therefore D's fire is a cause in fact of Ps damage. Indeterminate P: Sometimes it's clear that D has behaved negligently and injured some people. and the combined fires burn P's property. o The "market share" theory: In product liability cases courts often apply the market share theory. the burden shifts to each D to show that the other caused the harm. but can show that all produced a defective product.they allow P to collect from any D only that Ds proportionate share of the harm caused. Then P can recover damages from either D2 or D1 but cant collect twice. the fire merges with some other unknown fire. even though it is not a "but for" cause. discounted by the likelihood that the damage will occur. forest fire. Liability then is joint and severally liable. If P cannot prove which of 3 or more persons caused his injury.
. o Salinetro: A party will be liable 4 neg conduct only if such conduct causes the injury in question. Under the but for test neither. Proof: What was Caused? Did the injury or damage result from the alleged negligence? Circumstantial evidence? Burden shifting? Cases o Right: Neg claim require prove of actual damages o Hale: A D action is a cause in fact of P harm i the harm would not have occurred but for the D action.and any one alone would have been sufficient to cause the injury. Neg Intervening Acts Proximate cause cuts off liability even when there is cause in fact Lapse of time is one major variable in proximate cause Has to be a foreseeable risk/ harm . -Joint Causes (substantial factor test): Several causes concur to bring about an injury . Problems w/ and Alternatives to Bur-for Tests 3. .that they were exposed to a toxic substance made or released by D and that they suffer a particular medical problem.it is sufficient if D conduct was a substantial factor in causing the injury. independent of the other fire or if his fire materially cause the damage. but it is not a cause of death of one who suffocated in bed. can recover something even if they cant show that it's more probable than not that their particular injuries were cause by D's toxic substance 1. But for any of the acts the injury would not have occurred. the tortfeasor will be jointly and severally liable o Anderson: If one negligently sets a fire which combines with another fire of no responsible origin. o Landers: Where concurrent independent torts produce an indivisible injury. 2. he is liable if his fire would have caused the damage. o Lord : A P may recover for loss of opportunity injury in medical malpractice cases when the D alleged neg aggravates the P preexisting injury such that it deprives the P of substantially better outcome D. EX: Failure to provide a fire escape in a cause of death of one who is thereby unable to flee a fire. But-For Test: An act or omission to act is the cause in fact of an injury when the injury would not have occurred but for the act. Scope of Risk or Proximate Cause Element Scope of Risk Assessing the Scope of Risk i. EX: 2 fires meet and burn a farm.Under some circumstances the but for test is inadequate to determine causation. Intentional or Criminal Intervening Acts iii. When P shows cause in fact is to show that Ds conduct was a but for cause of Ps injuries. Intro: Scope of Risk and Natural and Continuous Sequence ii. Either fire alone would have done the damage without the other. the D has the burden of proving that the other person was the sole cause of harm.But for test applies where several acts combine to cause the injury but non of the acts standing alone would have been sufficient. and the P has introduced evidence that one or two persons is culpable(responsible). Court must rely upon other tests. o Summers: When two or more persons by their acts are possibly the sole cause of harm.
So even if the P has a thin skull and a normal person would not have suffered an injury even if you dont know of their condition then you are still liable o General class of harm but not same manner: Exception s that as long as the harm suffered by P is of the same general sort that made D's conduct negligent. Proximate Cause . The proximate case requirement is a policy determination that a D even one who has behaved negligently. so it may well have more than one proximate cause. Takes his plaintiff as he finds him. Restatement: A D is not liable for harm different from the harms whose risk made the D conduct tortious. even if relatively minor. and P is injured. D is generally liable. o Multiple Proximate Causes: Just as an occurrence can have many "causes in fact". o Unforeseeable P: Rule that D is liable only for foreseeable consequences is also usually applied to the unforeseeable P problem. . Each driver is probably a proximate cause of the accident. it is irrelevant that the harm occurred is an unusual manner. Basic test foreseeability. D is liable for all harmful results that are the normal incidents of and within the increased risk caused by his acts.Intervening Cause Elements to consider for proximity o injury Definition: An intervening cause is a force which takes effect after D's negligence and which contributes to that negligence in producing Ps injury. Egg shell test: You take the P as they are. o Extensive consequences from physical injuries: Key exception is D is liable only for foreseeable consequences is once P suffers any foreseeable impact of injury.Foreseeability o General rule: D is liable only for those consequences of his negligence which were reasonably foreseeable at the time she acted. P must still show that D was the proximate cause of those injuries. should not automatically be liable for all the consequences no matter how improbable or far-reaching of his act. That is if D conduct is negligent as to X in the sense that it imposes an unreasonable risk of harm upon X) P will not be able to recover if through some fluke he is injured. D is liable for any additional unforeseen physical consequences. D will not be liable for the consequences that are very unforeseeable. o The mere fact that an intervening cause ws unforseen will not relieve D but if the intervening act is something unexpected or extraordinary . EX: Each of two drivers drives negligently. If one of the reasons that make Ds act negligent is a greater risk of a particular harmful result occurring and that harmful result does occur. General: Even after P has shown that D was the "cause in fact" o f Ps injuries.Proximate Cause . NEED GOOD EXAMPLE OF THIS o P part of foreseeable class: Exception the fact that injury to the particular P was not especially foreseeable is irrelevant as long as P is a member of a class as to which there was a general foreseeability of harm.
o Test: if D should have foreseen the possibility that the intervening cause or one like it might occur or if the kind of harm suffered by P was foreseeable (even if the intervening cause was not itself (foreseeable) D's conduct will nonetheless be the proximate case. Intervening causes that are sufficient to prevent D from being negligent are called superseding causes since they supersede or cancel D's liability. not superceding?? unless gross and unusual then not superseding. D will be liable for anything that happens to P as the result of negligence in the medical treatment infection. NEED EXAMPLE AND MORE UNDERSTANDING HERE o Foreseeable negligence: The negligence of third persons may similarly be an intervening force that is sufficiently foreseeable that it will not relieve D of liability o Criminally or intentionally tortious conduct: not superseding but can be foreseeable. Unforeseeable intervention. o Aggravation of injury by medical treatment: If D negligently injured P who then undergoes medical treatment.as that he couldnt or should have anticipated it he will not be liable. More likely you be superseding if it is criminal or intentionally tortious than where it is merely negligent. foreseeable result: If an intervention is neither foreseeable nor normal but leads to some type of harm then usually not superseding. o Superseding cause: Intervening causes are sufficient to prevent D's negligence from being held to be the proximate cause of the injury. unforeseeable results: If the intervention was not foreseeable or normal and it produced results which are not of the same general nature as those that made Ds conduct negligent the intervention will probably be superseding. But if P does discover and willfully and negligently fails to warn . Extra ordinary acts of nature are likely to be superseding A third persons failure to discover and prevent a danger will almost never be superseding. o Rescue: D may be liable to the person being rescued or to the rescuer bc they are viewed as foreseeable intervening forces. Response to D actions: Where the 3rd party's intervention is a normal response to the D act that response will generally not be considered superseding. But if neither the intervening cause nor the kind of harm was foreseeable the intervening cause will be a superseding one relieving D of liability. Unforeseeable intervention. Foreseeable intervening causes: The risk of a particular kind of intervening cause is the very risk or one of the risks which made D's conduct negligent in the 1st place. Not bound to anticipate criminal acts. Foreseeability rule: Courts use a foreseeability rule to determine whether a particular intervening cause is superseding. EX: Escape as a response to a danger created by D so the escape will not be a superseding cause as long as it is not irrational or bizarre.
P D may escape liability if D took all the reasonable steps to remedy the danger. o Palsgraf: Liability for damages based on negligence exists only where the injuries to the P were reasonably foreseeable from the act or omission committed. Independent v. P must show that the statute was intended to guard against the kind of injury in question and P must be a member of the class of persons whom statute was designed to protect. where the risk of the intervening act occurred is the very same risk which rendered the D negligent. relieving the D of liability. the unforeseeability of the manner in which the risk occurs does not excuse negligence. o Hughers : When actual cause of an injury results from an unforeseeable action fo known risk. dependent intervention??? Cases o Medcalf: Proximate cause in an actual cause that is substantial factor in the resulting harm. relieving the D of liability. Neg Per Se o Just takes away duty and breach from the jury for neg per se o Just bc there is s statue doesn’t mean neg per se applies . and the issue of foreseeability remains a question of fact for that triar. Statutory neg 1. o Ventricelli: Recovery for neg may be obtained only where the injuries incurred were reasonably foreseeable from the acts or omissions constituting the breach of duty o Marshall: D remains liable for the full consequences of his negligent act when the intervening force is one which a reasonable man would have foreseen as likely to occur under circumstances. o Derdiarian : An intervening act will not serve as a superseding cause. Their duty is what the statute says it is What are the Elements of neg per se: o statute or regulation clearly defines standard of conduct o statue must have been intended to prevent the type of harm caused o p must be a member of the class of persons it was designed to protect o violation must be proximate cause a. E. . o Delaney: A P suicide attempt may be an intervening cause. Applied when a safety statute has sufficiently close application to the facts of the case at hand an unexcused violation of the statute by D is negligence per se and thus conclusively establishes that D was negligent.If n individual has violated an applicable statue do you have to show anything else? In addition to showing the statue was violated you must show o Causation o (actual and proximate and harm o Neg per se only does is supplants on to elements of a neg claim duty and breach. The statue est the duty and breach because the statute explains and it is not a required element to prove here d. where the risk of intervening act occurring i the very same risk which rendered the D neg. c.
.Contributory negligence only applies where P's negligence contributes proximately to his injured.the burden of this defense is on the D .Neg per se: can but use unless the P fits the class of persons clause. but hit recovery is reduced by a proportion equal to the ration between his own negligence and the total negligence contributing to the accident. . . .Contibutory negligence defense is not a good defense for reckless tortious conduct . Even if D's conduct is not merely negligent.P is held to the same standard of care as the D both held to be reasonable person in like circumstances. P is just careless ..Intentional tort most courts will not apply comparative negligence.Modified Comparative Fault: P must be less than a certain percentage at fault to recover from D. .not a defense to an intentional tort but is a defense for neg per se .Any contributory neg completely bars recovery.In some places this is an all or nothing defense this it true even if D negligence was extreme so long as it was not reckless or wanton act . P is not barred from recovery by his contributory negligence.. but willfull and wanton or reckless most states nonetheless will reduce Ps damages.Claims where this defense is not usable: Intentional torts this defense cant be used. Contributory Neg Rule: The doctrine of contributory negligence applies. Adopting and Applying Comparative Fault Rules are you a comparative fault JD or contrib neg Jd ass of the risk but it is comparative fault that is more damages related .Pure versus 50% systems: the rest that haven't adopted the other states completely bar P if his negligence is depending on the state as great as Ds greater than D's. The idea is that the defense does not apply where D disregards a conscious risk.Unknowing contributory negligence: P doesnt see the precise risk.A comparative fault system rejects the all-or-nothing approach of contributory negligence.Pure Comparative Fault: No amount of negligence by hte P can bar recovery not even 99% .usually 50% .Willfull and wanton: Similarly if P conduct is found to have been willful and wanton and reckless the contributory negligence defense will not be allowed.Knowing contributory negligence/ implied assumption of the risk is when (1) one sees the risk (2) unreasonably.Injured person must be in a class of persons that the statute is designed to protect and the type of harm as well V. (But if D negligence is merely gross then it will be allowed. Contributory Negligence a. . voluntarily takes on the risk .. . but they will do it via percentages. It instead attempts to divide liability btwn P and D in proportion to their relative degrees of fault. . Doctrine provides that a P who is negligent and whose negligence contributes proximately to his injuries is totally barred from recovery. c.Multiple D this is harder to apply. Defenses for Negligence A. All-or-Nothing Judgments After Comparative Fault . Adopted by 46 states . b.
Finally where the court concludes that there is some overriding public interest which demands that the court refuse to enforce the exculpatory clause. o Wassell: A jury finding of comparative negligence and not be disturbed unless clearly contrary to legal standards. 3. the bargaining power of the party protected by the clause is grossly greater than that of the other party typically a status the courts finds to exist only when the good or service being offered is essential.Def: P assumes the risk if they have voluntarily consented to take the chance harm will occur.Exceptions: when D either intentionally causes the harm or brings it about y acting in reckless or grossly negligent way. Allocating Full Responsibility to the D in the Interests of Policy or Justice e. Cases o Moore: A court errs in failing to consider the scope of release before granting summary judgment in a negligence action o Avila: Applied in the sporting context. P Illegal Activity Cases o Butterfield : A P will not be able to recover where his lack of due care contributed to occurrence of the accident. Rescue Doctrine: One who sees a person in imminent danger caused by the negligence of another cannot be charged with contributory negligence unless the rescuer acted recklessly but it is assessed case by case given it is an emergency situation o To achieve rescuer status one must demonstrate: the D was negligent to the person rescued and such negligence caused he peril or appearance of peril to the person rescued the peril or appearance of peril was imminent a reasonably prudent person would have concluded such peril or appearance of peril existed 2. Remaining in Danger: It may be contributorily negligent to fail to remove oneself from danger (remaining in the car with a drunk driver) 2. o Bexiga: The defense of contributory neg is unavailable where considerations of policy and justice dictate. Also.d. Contractual or express Assumption of Risk . Last Clear Chance or Discovered Peril: This doctrine of last clear chance acts as a limit on the contributory negligence defense. thus at common law barred from recover. Exceptions to the Contributory Neg 1. D Reckless or Intentional Misconduct 4. o Christensen: As a mater public policy. .Express Assumption: If P explicitly agrees with D in advance of any harm that P will not hold D liable for certain harm. and P did not have such an opportuinty the existence of this opportunity. the existence of this opportunity (last clear chance) wipes out the effect of Ps contributory negligence. a. school children do not have a duty to protect themselves from sexual abuse by their teachers o LeRoy Fibre: The uses by one owner of his property may not be limited by the wrongful use of another owner C. If just before the accident D had an opportunity to prevent the harm. assumption of the risk bars liability for injuries arising from risks that are inherent to the sport involved. P is said to have expressly assumed the risk of that harm. . Assumption of the Risk another Defense on Negligence .
consent to enter. with knowledge of the risk . Some sort of benefit for u diff from public invitee still have a duty of reasonable care For a private landowner =must be a benefit hardest part is to figure out which category ppl fit in? what does the ct say about the status here? o When he first enters he is an invitee initially bc he bought a tik is there to confer a benefit o Once he entered upon the track whether willful or by other means he became something else but that doesn’t change the duty P argue he is not a trespasser here bc he didn’t intentionally enter the area but the ct says trespass is not the same as trespasser under intentional torts o Doesn’t matter how u got there bc u aren’t authorized to be there . but you have consent to enter but no real benefit for the land owner. Can not be given under duress bc P is left without a choice but to encouter D and the known dangers .Implied Assumption of the Risk: even if never an agreement can be made by conduct or voluntary consenting. Limiting or Expanding the Duty of Care According to Context/Relationship A. Everybody who isnt in either group. this is important when Ds conduct was reckless ( contrib neg no defense for reckless conduct but ass of the risk is) D. Defenses Not on Merits Statutes of Limitation o If P does not discover the injury until long after Ds negligent act occurred then the statue of limitation can start when the act happens and other times it can start when P discovered the injury.. Cases o Crumpton: The statue of limitations commences from the date of injury and is not tolled during negotiating for settlement absent an express or implied tolling agreement. Host-Drivers and Landowners Invitee: person is there for the benefit of the landowner and thus your duty here is reasonable care. There for ur permission o Duty of care owned to them is for the land to not act reckless or wantonly or willful more then just general neg avoid basically intentionally or willful harm o Not keeping ur land in good repair isn’t enough Trespasser same duty as liscenee Benefit is someone who is paying you to o you a service or buy ur good. Public invitee for general space for anyone Liscenee: often are social guests. o Schiele: o Hoery: Both the continuing migration and ongoing presence of toxic chemicals into property constitute a continuing trespass that permits a tort claim to keep accuring V.often P assumption of the risk normally constitutes contributory negligence. Carriers.
(e) the possessor fails to exercise reasonable care to eliminate the danger or to otherwise protect the children.Cases o Once an invitee goes outside the area of invitation.Exception is when a land owner discovers a trepassee then the duty changes back to reasonable care o This speaks to the foreseeability bc u should have to maintain something for an area where u don’t expect ppl to be there o Only trespassee who are in apposition of peral / Ie some risk if you don’t action . his status becomes one of a licensee or trespasser.no lower duty when u give someone a free ride a.” o P theory of liability bc they knew neighbors had children bc they could see foresee if but did nothing to avoid it o The child is a trespasser even if neg don’t owe them a duty of reasonable care just to not engage in reckless conduct which they were doing o the statutory abolition of assumption of the risk defense did not implicitly abolish the defense that a landowner has no duty to warn of an open and obvious danger. (b) the possessor knows or has reason to know the condition will involve unreasonable risk of death or serious bodily harm to such children. depending on the circumstances o Under the attractive nuisance doctrine a landowner is liable for injuries to an unknowing child trespasser cause by an artificial condition if (1) the landowner knows or has reason to know that children are likely to trespass on his land and that the condition is reasonably likely to cause injury or death to child trespassers (2) the child trespasser does not discover or appreciate the danger of the condition. Carriers and Host-Drivers . firefighters rule . (c) because of their youth the children do not discover the condition or realize the risk involved (d) the risk of harm to the children outweighs the possessor’s utility of maintaining the condition and his burden of eliminating it. (4) the landowner fails to reasonably eliminate the danger o Rule of Law: A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon land if: (a) the possessor knows or has reason to know that children are likely to trespass on that place. o the firefighters rule bars tort recovery by a firefighter or police officer for on-the-job injuries sustained during the discharge of his or her duties. (3) the landowners burden of safeguarding the condition is not outweighed by the degree of risk to the child.raise the duty for common carriers but assume they are under a normal duty of care .
unless the owner had created or contributed to it o Natural Hazards: if a hazardous condition exists naturally on the land. o Exceptions: 3 major to the general rule .o they are an invitee but you treat them as liscenee same with police officer unless they are hurt by conditions or things that are on the property that are unrelated to their reason for being there o like a dog biting a fire fighter example o o a landlord is under a duty to exercise ordinary care in maintenance of the premises o a landlord owes a duty of reasonable care to all who enter upon his land b.no standard of care owed to the P. . to warn of dangers on it. then provides that land possessors owe flagrant trespassers only a duty not to intentionally willfully or wantonly injure them .Outside the Premises Effect Outsides: There are some rules that lower a landowners standard of care. If P is anyone else then ask what the injury caused by an activity or a dangerous condition .Dangerous condition: If the injury occurs due to a dangerous condition. to avoid carrying on dangerous activities on it. Trespassers o General rule: No duty to a trespasser to make her land safe. .general rule is that all entrants are owe a duty of reasonable care except in exceptional cases.Make sure that D is the owner or operator of the land or one who is on privity with one.etc (Owners and Occupiers of Land) .. Landowners Duties to Trespassers. the property owner generally has no duty to remove it or guard against it. these rules do not apply to conduct by the landowner that has effects outside of his property. the general "reasonable care" standard usually applies to such effects. treat as ordinary neg. to protect the trespasser in any other way. Licensees. Courts are less likely to apply this in urban areas but still can be found liable may just need a stronger case o Artificial Hazards: Where the hazardous condition is artificially created the owner has a general duty to prevent an unreasonable risk of harm to persons outside the premises. o An owner owes no duty to warn or protect others from a defective or dangerous condition on neighboring premises. Therefore.Is the P an undiscovered trespasser? If so there is no duty . even if it poses an unreasonable danger to persons outside the property. However.Who the P is determines what the duty of care owned is: . must consider who P is. o Landowner is libale for dangerous conditions from an artificial source involving risk of serious injury that the owner knows of. Do not worry about who the P is.Did the injury occur on or off the land? . No duty before discovering trespassers presence. .Activity: If you were doing something on the property.
if the owner knows of a dangerous condition. The owner has reason to know that the condition poses an unreasonable risk of serious injury or death to trespassing children. o On the and for the purposes of the landowner o Landowner will be liable for dangerous conditions that the owner know about ot should have known about. but who does not have a business purpose for being there. Also. Landowner must conduct a reasonable inspection of the premises to learn about defects/dangers o Definition of "invitee: The class of invitess today includes: (1) persons who are invited by O onto the land to conduct business with O. she must use reasonable care to make the premises safe or at least warn of dangers. that person will change from invitee to licensee. due to his youth. or anything else entitling him to be on the land apart from the owner's consent. Social gues o Landowner is liable for dangerous conditions that he knows of o Duty to licensees: the owner does not owe a licensee any duty to inspect for unknown dangers. On the other had. the owner must use reasonable care to take affirmative action to remedy a dangerous condition. Scope of invitation: If the visitor's use of the premises goes beyond the business purpose or beyond the part of the premises held open to the public. Children: Owners owes a duty to trespassing children only if all the requirements are met: Attractive nuisance rule: Owner knows that the area is one where children are likely to trespass. she must warn the licensee of that danger. Invitees o Duty to invitee: reasonable inspection to find hidden dangers. Owner owes an invitee the duty of reasonable care: . the injured child either does not discover the condition or does not realize the danger.Constant trespass on a limited area: If the owner has reason to know that a limited portion of her land is frequently used by various trespassers. Discovered trespassers: Once the owner has knowledge that a particular person is trespassing the owner is then under a duty to exercise reasonable care for the trespasser's safety. and (2) those who are invited as members of the public for purposes for which the land is held open to the public. the benefit to the owner of maintaining the condition in its dangerous form is slight weighted against the risk to the children and. GET THAT REDICIDCULOUS RULE ABOUT THIS FROM BOOK CASES?? Licensees o Definition of licensees: A licensee is a person who has the owner's consent to be on the property. the owner fails to use reasonable care to eliminate the danger.
who. do not realize the danger of the condition. This is true even as to dangers that existed before O moved onto the premises. EX: if they go into an area uninvited they become trespassers. Minnich: This rule doesnt bar an emergency professional such as a police officer or firefighter or public safety officer who is injured as a result of performing his or her duties from recovering tort based damages from the party whose neg caused the injury. Generally a lessor is not liable in tort once he transfers possession to the lessee. and public safety( what about ambulance ppl? ) who come onto private property in the performance of their duties are treated as mere licensees so that the owner does not owe them a duty to inspect the premises or to make the premises reasonable safe. c. police. licensee's. then the condition must actually be remedied. an unreasonable risk of harm to those coming in contact with it.Some courts have rejected the categories of trespasser. Firefighters Rule Firefighters. because of their youth. however. d. Adopting a Reasonable Case Standard for Landowners Rowland: Where a land occupier is aware of a concealed condition involving in the absence of precautions. o Warning: the giving of a warning will often but not always suffice. and use a general standard of reasonable person standard of liability. And theses are often unwilling to abolish the category of trespassers and these courts also follow that an owner owes a trespasser no duty of care and only the duty to refrain fro the maliciously injuring the intruder. and is aware that a person is about to come in contact with in and failure to warn or to repair the condition constitutes neg e. o O' Sullivan: the open and obvious danger rule operates to negate the existence of duty of care. . Lessors A tenant is treated as if she were the owner all the rules of owner liability apply equally to them. o Control over third persons: Reasonable care by O may require that the exercise control over third persons on her premises. All non-trespassing social guests are entitled to reasonable care under the circumstances.o Owner has a duty to inspect her premises from hidden dangers. O must use reasonable care in doing this inspecting. o Social guest: are the main class of persons here but remember they can be come trespassers and each group can change given the facts. o Bennett: The attractive nuisance doctrine applies where an artificial condition on a prop owner's land creates an unreasonable risk of harm to trespassing children. Cases o Gladon: If an invitee trespasses into areas beyond the scope of the invitation. Most common application of this is a firefighter who is injured while fighting a blaze cannot recover from the owner of the premises even if the owner's negligence caused his fire. If O should realize that a warning will not remove the danger. invitees. then in those area the landowner owes no duty except to refrain from wanton or reckless conduct that would likely injure the trespassing invitee. there are a umber of exception to this rule .
skillful. o Common areas: Lessor has a general duty to use reasonable care to make common areas safe. o Where a P receives unusual injuries while unconscious and in the course of medical treatment the doctrine of res ipsa may be used to infer negligent conduct on the part of all those D that had control over him or the instrumentalities which might have caused the injuries. o Lessor contracts to repair: Lessors contracts as part of the lease to keep the premises in good repair. o Known to lessor. o Negligent repairs: if the landlord begins to make repairs and either performs them unreasonably or fails to finish them. when the injury is of a kind that ordinarily does not occur absent negligence. o the doctrine of res ipsa locquitor permits a fact finder to find negligence simply from the fact that an injury occurred. Courts are split about what happens when the landlord starts the repair then abandons it without worsening the danger. unknown to lessee dangers existing at the start of the lease which the lessor knows or should know about and which the lessee has no reason to know about. b. acting under the same or similar circumstances. o Open to public: If the lessor has a reason to believe that the lessee will hold the premises open to the public. Duties of Medical and Other Professionals . and proficiency exercised by reasonably careful.Cases o It is insufficient for a P to establish a prima facie case of medical malpractice merely to present testimony of another physician that he would have acted differently from the D o A physician must exercise that degree of care. EX: P must show that D failed to use reasonable care in performing it is not enough t show that D breached the contract. and prudent practitioners in the same class to which he belongs. skill. o A physician owes his patient the duty to disclose in a reasonable manner all significant medical information that the physician possesses or reasonably should possess that is material to an intelligent decision by the patient whether to undergo a proposed procedure. Pagelsdorf: A landlord is under a duty to exercise ordinary care in the maintenance of the premises A landlord generally doesnt have a duty of care to the social guest of a tenant with 6 exceptions o Undisclosed or dangerous condition known to the lessor and unknown to the lessee o Conditions dangerous to persons outside the premises o Premises leased for admission of the public o Parts of land retained in lessors control which lessee is entitled to use like community areas o Where lessor control to repair then he must repair o Negligence by lessor in making repairs. . the lessor has an affirmative duty to inspect the premises to find and repair dangers before the lease starts.
The rule requiring adequate disclosure is called the rule of informed consent. Doctor must disclose to the patient all risks inherent in the proposed treatment which are sufficiently material that a reasonable patient would take them into account in deciding whether to undergo the treatment. Nor is the coming about of an inherent risk proof of malpractice.P must show more than an unwanted result. . Learned intermediary doctrine for drugs: In the case of prescriptive drugs the warning generally needs to be given only to the physician. Emergencies .When there are diff standards of care and the medical authority is divided then the which ever side the physician sits on is the one he is held to follow . However.o a hospital must provide appropriate medical screening within the capability of the hospitals emergency department to determine whether an emergency condition exists and if it does the patient may not be discharged until he has received stabilizing treatment or has been appropriately transferred.no need to give informed consent Immaterial risks . part of the professional duty is to adequately disclose the risks of proposed treatment to the patient in advance. No duty to inform what should be reasonably known by others. Differing Schools: D will be held to be in the school he follows even if there are conflicting schools iii. only material risks are required. level of care is the one that is common to the standard accepted by that practice. P must show that the D doctors deviation from customary practice caused P injury. 1. . i.the standard of care is determined by the customary care provided by other physicians of the same type of practices .things that are not of consequences. Failure to get teh patient adequate consent is deemed as a form of malpractice informed consent the doctor must only disclose however the risks inherent What must be disclosed? What is the nature of the treatment? What is the risk of the treatment? What are the feasible alternatives? What are the consequences of non-treatment? What does not have to be disclosed? Known & obvious. Hospitals do not assume liability for physicians directed actions.Malpractice: If D has a higher degree of knowledge skill or experience then a reasonable person with the same and they must use a higher level. Novice: one who i novice is generally held to the same standard of care that a seasoned professional is 2.who is a "learned intermediary" between manufacturer and user.not to the user. they will be liable if they fail to train or for inadequate facilities . Specialist: If D is a specialist then D will be held to the standard of his specialty iv. Where the knowledge of risk may cause harm. Good results not guaranteed: A professional will typically not be held to a guarantee that a successful result will occur only that she will use the minimum skill and competence ii. Informed Consent: In the case of a physician.
a. the doctor held liable d. Informed Consent Ever person has the right being an adult to determine what shall be done with his own body and a surgeon who performs an operation without patients consent commits an battery for which he is liable Some courts also treat cases where the patient has consent without appropriate information as liable to a battery but it is informed consent on negligence not battery Harnish: A physician owes his patient the duty to disclose in a reasonable manner all signifigant medical information that the physician possesses or reasonably should possess that is material to an intelligent decision by the patient whether to undergo a proposed procedure.Pharmacists owe their clients no duty to warn of possible side effects as they are not the ones who prescribe the medicine. res ipsa loquitor applies against all of the drs and medical employees who take part in caring for the patient. the government alleged failure to do so is not protected under the discretionary function exception o A municipality is not liable for failure to provide special police protection to a member of the public who was repeatedly threatened . not to those of public entities. when assessing the governments liability under the FTCA in the performance of activities that private persons do not perform o Because removing an obvious health hazard is a matter of safety rather than policy. Does not require that the patient be warned about the succes rate but simply warned about risks.Educator may be committing intentional torts by failure to remove a dangerous condition on the school grounds . consequences of the medical procedure Dr has no duty to what is not standard within the medical community d. Ybarra: Where unexplained injury occurs during a medical procedure to a part of the body not under treatment. Res Ipsa Loquitor Applies only when a permissible inference arises that the event would not ordinarily occur without negligence States: It is proper in medical malpractice cases to allow the use of expert medical testimony to inform a jury decision on the 1st element of res ipsa loquitor ie that the injury-causing event is of the kind that ordinarily does not occur in the absence of neg.Hospitals owe a duty of reasonable care under the national standards set forth by hospital accrededation commission . Governmental Entities Immunity Cases o The FTCA requires a court to look to the state law on the liability of private entities. c. Other Professionals -Nurses are held to the standard of other nurses in similar practice . Traditional Duties of Health Care Providers in Traditional Practice Cases o Walski: The Plaintiff has the burden of proving a D doctor violated the prevailing standard of care in order to est medical malpractice o Vergara: The standard of care to which a physician should be held accountable should not be dictate by local customs but rather national standards b.
with personal harm and eventually suffered injuries for lack of protection o in order for the discretionary function exception to apply to governmental acts the conduct must involve making a policy or planning judgment o Qualified immunity does not attach when the state deprives an individual of a constitutional right that is clearly established at the time of deprivation o A municipality may be liable for civil rights violations if there is proof of the existence of a custom or informal policy with repeated constitutional violations for which municipal officials were not discharged or reprimanded. owed to the public at large rather than to particular individuals or groups. o The discretionary function doctrine applies only to those discretionary acts that are founded on planning or policy considerations. . even if the official policy-makers did not have actual knowledge of the custom and practice. The special relationship btwn the D and the caller required the D to exercise ordinary care in the performance of a duty it has voluntary assumed. Traditional Immunities and Their Passing o P must submit a claim to the agency first then if the agency refuses payment or has delayed for over 6 months in making a decision then they can file a suit o Public Policy Doctrine: public entities and officers are not liable to individuals for failure to carry out a duty. Can be narrowed if the officer or entity takes affirmative action that endangers the P or if the duty becomes individualized because of a special relationship with the P o the officer is not liable for failure to arrest a drunk but he is liable if he himself causes injury by driving negligently Federal Tort Claims Act o Government not liable for intentional torts. o 2 factors are usually considered in determining whether an act is discretionary the act must have been discretionary that is involving judgment of choice the discretion must have been exercised on the basis of some governmental policy o Can only sue if the discretionary acts are funded on planning or policy o A special relationship between the city and the caller. The victims plea for assistance was not refused. Once they decide to provide protection then they have a duty to protect o Yes. Absent a specific legislative mandate to the contrary the govt is under no duty of care to protect the public generally from external hazards and particularly to control the activities of criminal wrongdoers and immunity applies even where specific threats have been made known to the authorities by particularly endangered persons. even a statutory duty.
Nonfeasance a. o The Discretionary or Basic Policy Immunity Cases Whisant: The discretionary function exception of the Federal Torts Claims Act applies to the design of a course of governmental action but not to its implementation o Immunities Under State Law Cases Riss: Absent a specific legislative mandate to the contrary the govt is under no duty of care "to protect the public generally from external hazards and particularly to control the activities of criminal wrongdoers. then the municipality will lose its immunity from 1983 liability even though the custom has not received formal approval from the municipal body's official decision-making body. Nonfeasance is doing nothing and thus you are not liable A person has no duty to rescue another person unless he is responsible for placing that person in peril Misfeasance is negligence is doing something active which you are liable for Cases . The No Duty to Act Rule General common law rule is that one person owes another no duty to take active or affirmative steps for the others protection. Olson: Under the Federal Tort Claims Act the United states waives sovereign immunity only where local law a would make a private person liable in tort not where local law would make a state or municipal entity liable. o State and Municipal Liability under § 1983 States often had copied fica in their immunities that they seek Cases Navarro : If a municipality operates under a particular custom and that custom visits constitutional deprivations upon certain individuals. Harrry Stoller: The discretionary function doctrine applies only to those discretionary acts that are founded on planning or policy considerations o Officers Cases Vaughn: A social service worker is not entitled to qualified immunity from a due process claim where the social service worker informs a parent that the State will more likely let the parent have custody of the parent's children on condition that the parent submit to sterilization. e.o Absent a specific legislation mandate to the contrary the govt is under not duty of care to protect the public generally from external hazards and particularly to control the activities of criminal wrongdoers o The General Structure of the FTCA o Cases US v.
A person has duty to rescue another person unless he is responsible for placing that person in peril. There is no duty to rescue or assist one who is in a position of peril o one who voluntarily undertakes to render services to another is liable for bodily harm caused by his failure to perform such services with due care or with such competence and skill as he possesses o Social companions have a duty to aid one another in situations of peril o when there is some relation btwn strangers then a duty exists to aid the other who is in danger o a public entity must have custody of another in order to hold it liable for depriving the person of federal due process rights by failing to prevent harm caused by a 3rd person b. Exceptions, Qualifications and Questions If a person knows or has reason to know that his conduct, whether tortious or innocent has caused harm to another person he then has a duty to render assistance to prevent further harm If a person has created an unreasonable risk of harm, even innocently, a duty of reasonable care arises to employ reasonable care to prevent the harm from occurring A court may use a statute to find an affirmative duty to assist or protect that is enforceable Special Relationship
o Formal relationships that place the D under a duty of reasonable care for the P safety, including reasonable affirmative efforts to rescue. The relationships are those of carrier-passenger, innkeeper-guest, landowner-lawful entrant, employer-employee, school-student, landlord tenant, and custodian-person in custody. Not exclusive just examples o here the D is already doing something affirmatively that should produce a duty of acting reasonably under the circumstances. o Where this exists then the D will have a duty of reasonable care whether or not the D had anything to do with creating or increasing the risk of harm to the P
Cases o Wakulich: Where someone takes actions demonstrating an undertaking concerning another's well being the former voluntarily assumers a duty to care for the latter
An actor who undertakes to render services to another, when the actor knows or should know that those services will reduce the risk of harm to the other, has a duty to use reasonable care in rendering those services if the failure to exercise care would increase the risk of harm beyond which would have existed without undertaking; or if the other person relies on the actor's using reasonable care in the undertaking.
Farwell: When one attempts to aid another person, a duty arises that requires him to act as a reasonable person. Podias: When a driver is unwilling or unable to seek emergency aid for a victim struck by the drivers vehicl,e the driver passengers have an affirmative duty to see emergency aid or take other precautionary measures to prevent further harm to the victim.
DeShaney: Govt officials do not violate a minor's civil rights by not removing him from a violent guardian, even if they have knowledge of the guardian's violent tendencies. f. Contract and Duty Unenforceable Promises: o Cases: Under the common law, once who undertakes to do an act for another without reward is not answerable for omitting to do the act and is only responsible when he attempts to do it and does it amiss. When on person promises to do something for another and that promise is gratuitous that person is not liable under tort law if they take no action to fulfill the promise Under MI law in order for an action in tort arise out of a breach of contract, the act complained of must constitute (1) a breach of duty separate and distinct from the breach of K and (2) active negligence or misfeasance A party can not maintain an action in torts based on a contract ot which they are not neither a party nor an intended 3rd party beneficiary When the D does nothing to increase the risk of physical harm to P beyond that which already existed at the intersection, a D will not be held liable for simply failing to complete before the P accident a project that might have reduced the preexisting hazard. A police department having assumed the duty to special class of persons and having gone forward with performance of that duty in the past has no obligation to continue its performance Enforceable Promises: o An actor who undertakes to render services to another, when the actor knows or should know that the services will reduce the risk of physical harm to the other, owes a duty of reasonable care in carrying out that undertaking if (a) the failure to exercise care increases the risk of harm beyond that which would have existed without the undertaking, or (b) the other person relies on the undertaking o If the D conduct would be a tort without a contract then you are in the clear. o Lessor is subject to liability for physical harm to the lessee and others on the land with the lessee's permission caused by a condition of disrepair, if (1) the lessor had contracted the repair, (2) the disrepair creates an unreasonable risk, and (3) the lessor fails to exercise reasonable care to perform his contract o Person in a special relationship with another owes the other a duty of reasonable care with regard to risks that arise within the scope of the relaionship o Cases Spengler: In order to establish breach of tort duty against a contracting party, the contracting party must commit some act that breaches a duty separate and distinct from that party contractual obligations. Promises to 3rd Persons (actions as promises or undertakings) o Cases H. R. Moch: A party whose performance of a contract incidentally confers a benefit upon third parties does not owe any duty to
continue to perform in a manner which is satisfactory to those parties. Paz: One who undertakes to render services to another which he should recognize as necessary for the protection of a third person is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to perform his undertaking if his failure to exercise reasonable care increased risk of such harm, he had undertaken to perform a duty owed by the other to the 3rd person, or the harm was suffered because of the reliance of the other or the third person on the undertaking. Actions as a Promise or Undertaking o Cases Florence: A city may be liable for failing to provide a crossing guard on a particular day when normally such a guard is assigned. - Governemental Immunities -Relationship or Their Absence: Non-Action, Contract and protection from Others Nonfeasance 437-458 Contract and Duty, 458-477 Defendant's Relationship and Plaintiff and Dangerous Persons - Duty to Protect from Third Persons Duty to warn of criminal conduct may only exist to a third party only if a special relationship exists between them. Landowner does not owe a duty to protect patrons from the violent acts of third parties unless he is aware of specific, imminent harm about to befall them Cases: o An affirmative duty to warn or protect against the criminal conduct of 3rd party may be imposed on one for the benefit of another only if there exists a special relationship between them o A very high degree of foreseeability is required to give rise to a duty to post security guards but lower degree of foreseeability may support a duty to implement lesser security measures o Failure to report abuse in accordance with the statute could give rise to liability provided the P can show that reporting would have prevented the subsequent abuse o Once you realize someone is noticable intoxicated then you have a duty to not serve them - Emotional/Mental Harm/Distress
Under the zone of danger rule a mother walking next to a child hit by a negligent driver would recover for emotional distress due to witnessing injury to her child since she was not hit herself. or an abuse of power by a person with some authority over the P. Fear for others safety: If P suffers purely emotional distress and no physical consequences and Ps distress is due solely to fear or grief about the danger or harm to 3rd persons court are split. even though he was not actually touched. 2) does not result in physical impact on P. It might involve employers and employees or public officials and those is subordinate positions Further proof if the D knows of the P vulnerability A person can not be held liable for merely by exercising a right even when they are substantially certain that it will cause emotional distress such as filing for a divorce P must prove a sufficient link between the D conduct and P distress Determining whether conduct is extreme and outrageous is a fact and case by case decision o Most common repeated or carried out over a period of time. also for the bodily harm. EX: D narrowly avoid running over running over P. If P suffers some type of emotional harm of being at risk after exposure to some type of substance and there is an increased likelihood thus they are upset most courts will not allows recovery for this Physical injury without impact: Where D negligently act 1) physically endangers P. and in fact runs over P's child S. Bar recovery for bystanders who are not directly involved If he was close enough to the D negligent conduct to be placed at risk of physical injury. In theses courts so long as P observes the danger or injury to X. Most courts will allow P to recover for her emotional distress at seeing S injured. A single request for sexual conduct is not sufficient however repeated and harassing requests for sexual attention can be outrageous Abuse of power by the D takes many forms. 511-43 o Cases: . and X is a close relative of P. Injury of a bystander is foreseeable the D has a duty to avoid injury either physical or emotional to him P who suffers a direct injury can also recover for EH o Abandonment of zone requirement: A number of states probably still a minority have abandoned the zone of danger requirement. P may recover. Intentional and Negligent Infliction of Emotional Distress. or Directed at a person known to be especially vulnerable Accompanied by physical threat: If D causes an actual physical impact to Ps person D is liable not only for the physical consequences of that act but also for all of the emotional of mental suffering which flows naturally from it. An actor who by extreme and outrageous conduct intentionally or recklessly causes severe emotional disturbance to another is subject to liability for the emotional disturbance causes bodily harm. If no physical contact then or direct physical injury to P courts limit right to recover for mental suffering. and 3) causes P to suffer emotional distress that has physical consequences nearly all courts allow recovery. o Zone of danger: If P was in the zone of danger nearly all courts allow recovery for mere distress due to another person's plight.
etc Can not claim for a parent child loss Cases Boucher: Parent of an adult who is injured dur to medical malpractice may not recover for the trauma of observing his injuries or for the loss of consortium Toxic Exposures. 585-598 o Fear of Future Harm: Limits on Recovery: Cases Potter: The absence of a present physical injury after exposure to a toxic substance will not preclude recovery for emotional distress engendered by the fear of future illness.. Cases o A mother is not liable for her child's prenatal injuries caused by the mothers negligence o A parent may recover the child-rearing expenses for an unwanted child when the parent successfully proves a physicians medical malpractice Most courts have rejected have rejected the traditional view that an infant injured in prenatal accident could never recover if born alive.Special Types of Harm -Prenatal Harms and Death. fraud. whereas a worker outside the zone will not a toxic exposure P need not meet the more liekly than not threshold for fear of cancer recovery in a negligence action if the P pleads and proves that the D conduct in causing the exposure amounts to oppression. to establish this in the workplace an employees must prove the existence of some conduct that brings the dispute outside the scope of an ordinary employment dispute and into the realm of extreme and outrageous conduct There are situations in which conduct directed principally at one person has been regarded as extreme and outrageous as to another. recovery for pre-natal injured varies: .. activites. or malice. . o The Loss of Consortium Claim This claim relates to spousal person who lose the spouse and it relates to more then sex. but the individual must also suffer emotional injury caused by fear of physical injury to himself. but normally the other person must be present to witness the conduct in order to recover a worker within the zone of danger of physical impact will be able to recover for emotional injury caused by fear for physical injury to himself. which authorizes the imposition of damages o The Emotional Distress Claim Grube: Fpr an individual to recover damages for the negligent infliction of emotional injury caused by witnessing an accident not only must the individual be within the zone of danger of physical impact.Where outrageous conduct is directed at a third person the conduct must be witnessed by a member of the third person's immediate family for that family member to recover damages for the intentional or reckless infliction of emotional distress. Today.
cannot maintain a cause of action in tort against the child's mother for personal injuries incurred before a birth because of the mothers negligence. Here. Usually. Wrongful Life. Cases o Where the employer and employee have made the travel time part of the working day by their contract and the employee is using the time for the designated purpose of returning home. in the sense that it would have been better off aborted. nearly all courts allow recovery. or with an unpreventable congenital disease. the child may argue that it should be entitled to recover for wrongful life.Child born alive: If the child is eventually born alive. is within the employee's scope of employment because it is minor deviation from the employee's work-related activities. and Preconception Injury o Cases Remy: A child. but that some effects from the injury is nonetheless suffered by the later-conceived child. courts are split as to whether the child may recover. and thus merely an act done incidental to general employment o a sexual tort will not be considered engendered by the employment unless the motivating emotions were fairly attributable o work-related events or conditions o foster parents are not deemed to be agents or employees of state family service agencies o An employer remains liable for injuries caused by its independent contractors when the employer is under a non-delegable duty to take special precautions to prevent a peculiar risk of harm to others o to prevail against a principal for hiring an incompetent contractor the P must show that the contractor was in fact incompetent or unskilled to perform the job for which he or she was hired that the harm that resulted arose out of that incompetence and that the principal knew or should have known of the incompetence o . Suppose. born alive. o Wrongful Life: If a child is born illegitimate.Vicarious Liability. however that the injury occurred before the child was even conceived. the doctrine of respondeat superior is applicable o the smoking of a cigarette if done wile engaged in the business of the employer. a court will allow recovery only if it finds that a fetus never born alive is a "person" for purposes of the wrongful death statue. Courts often do allow the parents (only never children) to recover for their medical expenses and perhaps their emotional distress from the child condition. EX: prenatal deformities after mother has taken a drug from D Doctors and manufacturors. before a wrongful death suit may be filed a child must be born alive even if it is just for one seconds o Pre-conception injuries: Above assumes that the injury occurred while the child was in utero. hospitals o Child not born alive: Courts are split about whether suit can be brought on behalf of a child who was not born alive. . Birth or Conception o Cases Chaffee: A parent may seek to recover child-rearing costs from physician who has negligently performed a procedure to prevent conception by the parent.
Scope of employment: Respondeat superior applies only if the employee was acting within the scope f his employment when the tort occurred. his employer will be liable ( jointly with the employee). Physical details: "Control" required to make a person an employee rather than an independent contractor is usually held to be control over the physical detail of the work not just the general manner in which the work is turned out. is not subject to the close control of the person doing the hiring. Independent contractor although hired to produce a certain result. The tort is within the scope of employment if the tortfeasor was acting with an intent to further his employers business purpose. Distinction: Main idea is that an employee is one who works subject to the close control of the person who has hired him. This is the rule of respondeat superior. kind of work authorized by the employer) Intentional torts: can be diff depends on the motivation for the intentional tort and if it arises out of work is there something about you work that makes you engage intentional torts or is it just you and your personal predilection o EX: Employment at mall at xmas time diff o EX: if you hire a bouncer then it is reasonable to expect that they will punch someone o EX: Diff from a dentist who cleans you teeth and sexually assault ppl Minor deviations are still within the scope of employment o Who is an employee? Know the diff btwn employee and independent contractor. unwise or even forbidden. Liability flows automatically from the employees tort regardless of the care the employer exercised in selecting or supervising him o the acts done by the masters bidding are treated as though the employer performed them himself o Scope of employment outside-going and coming Inside factors ( furtherance. Conduct of a servant is within the scope of employment if and only if o it is of the kind he is employed to perform o it occurs substantially within the authorized time and space limits o it is actuated at leas in part by purpose to serve the master and o if force is intentionally used by the servant against another the use of force is not unexpectedly by the master . even if the means he chose were indirect. o the employer is liable even if it took stringent measures to prevent accidents. time and space. Respondeat Superior and Scope of Employment o Definition of Respondeat superior doctrine: If an employee commits a tort during the scope of his employment.
How do you determine what deviation is reasonably foreseeable? Forbidden acts: Even if the act done was expressly forbidden by the employer is will be within the scope of employment if done furtherance of the employment. courts are divided. If bacall works with his won truck and tools and works when she choose and decides what work needs to be done then she is likely an independent contractor often said that a person is an employee ( or servant) if the employer has the right of control over the person in the performance of the work Factors that court will look to: the extent of control which the master is authorized to exercise over the details of work Whether the actor is engaged in a distinct occupation or business Whether the type is customarily performed under the employers supervision or by a specialist without supervision and the extent of skill required Who supplies the tools other equipment and places of work the length of time for which the person is employed whether the person is paid on time basis or by the job (contractors are hired to accomplish a certain goal Whether the employer is in business and whether the work is part of the employers regular business the parties belief as to the nature of the relation Coming and Going Rule: Trips from home: Most courts hold that where an accident occurs where the employee is traveling from her home to work she is not acting within the scope of her employment. Intentional torts: this does not relieve the employer of liability o Personal motives: But if the employee merely acts from personal motives the employer will generally not be liable o Vicarious liability for intentional torts: courts do hold employers liable for at least some intentional torts. determines when she will work and exactly what she will do. Ex: suppose that an employer is smoking on the job or bumps a visitor on the way to the bathroom then the acts do not directly further the masters enterprise but they are normal incidents of the work experience if the Bogart provides all the tools pays Bacall by the hour. EX: courts have fairly consistently held employers liable where an . If the employee is returning home after business. o Exceptions to the Coming and Going Rule If the employee is engaging in a special errand or mission on behalf of the employer the employer requires the employee to drive his personal work vehicle to work so that the vehicle may be used for work related tasks and the employee is on call Frolic and Detour: May be found within the scope of employment if the deviation was reasonably foreseeable. Bacall would likely be characterized as an employee.
worksite. Joint Enterprise . Reason to know they are incompetent and reasonably maintain supervision o Exceptions: Employers own liability: 1st If the employer is herself negligent in her own dealings with the independent contractor. in a park o the person hiring the contractor is landowner who owes the P a duty to use reasonable care to keep the premises safe. franchise owners are seen as independent contractors unless you can prove that the injury of harm that result was some from direct action although it is not a strong case Liability for Individual Contractors ( employer who are not masters) General Rule: No you are not liable for the acts of the independent contractor bc they are not your employee Who is a Ind Contractor? DC v. o the work is done in a public place like on the sidewalk or side of the road. Hampton ( control is the biggest but find the other factors)( if you have enough control then that puts you In)( what do they have control over) Notes ( see if they have other ppl they work for helps determine if they are a contractor) ( who is supplying the tools) Exception o Non delegable duty (pusie v.o employee commits an intentional tort in order to serve (however misguidedly) the employers purpose. and keep customer/employee safe) inherent danger landowners o Incompetent Contractors: holding them liable bc they hired an incompetent contractor bc you need to make sure they are competent to do what you need them to do. Independent Contractors: No general liability for one who hires them . Some situations where duties are nondelegable o the work is likely to involve a peculiar risk of physical harm to others unless special precautions are take. Non-delegable duty: 2nd some duties of car that are deemed so important that the person doing them will not be allowed to delegate them to anyone. this can give rise to employer liability. bater find policy if we dont do this then you get away with it by hiring a 3rd party)( when you bring ppl on to do things that are inherently dangerous then you still have a duty to maintain a safe home.
except that it is for a short and specific purpose ( a trip. Edgewater: An employer can be held vicariously liable for his employee's negligent smoking of a cigarette if the employee was otherwise acting in the scope of his employment at the time of the negligent act. . O'Banner: If a principal creates the appearance that an entity is an agent an innocent third party must still show reliance on the appearance and a resulting harm before the principal will be liable for acts or omission of a apparent agent. and (4) an equal right to a voice in the enterprise ( an equal right of control) Cases: Hinman: Where the employer and employee have made the travel time part of the working day by their contract. the harm involved arose out of the incompetence and the principal knew or should have known about the contractors incompetence. Hampton: A principal must have the right to control an agent in the performance of her duties Pusey v. Like a partnership. the factors of employee motive and foreseeability of misconduct are both relevant to the analysis of respondeat superior liability for intentional torts. Generally: where it exists may subject each of the participants to vicarious liability for the others negligence. used often in car accidents?? example) Requirements for joint enterprise: 4 (1) agreement express or implied between the members (2) a common purpose to be carried out by the members. armed security guard. Employers Who Are Not Masters: o Cases DC v.Strict Liability o . Puckrein: A principal will be liable for the actions of an independent contractor if the independent contractor was incompetent. Henry Mayo Newhall Memorial Hospital: While neither are dispositive. the employer should be treat as such during the travel time so that the doctrine of respondent superior applies as long as the employee is using the time for the designated purpose. (3) a common pecuniary interest in that purpose. Bator: An employer is liable for the negligent acts of an independent contractor.
6 factors how are they considered all or some must or may? high degree of risk of some harm to others harm that results is likely to be serious risk cannot be eliminated by the exercise of reasonable care the activity is not common the activity is not appropriate for the place where it is carried on. Strict liability Generally: Nature of D activity imposes an absolute duty to make safe. Types include Strict liability for carrying out abnormally dangerous or ultra hazardous activities and strict liability on the part of an employer for the employees on-the-job injuries a liability that is enforced by workers compensation statutes enacted in all states. and the danger outweighs the activity's value to the community Requirement of unavoidable danger: Most important factor is that the activity be one which cannot be carried out safely even with the exercise of reasonable care Examples: nuclear reactor. Liability without fault it is strictly policy based Standard of care is that D has to make sure that nothing happens to P Cases o A D is strictly liable for trespass o The P must prove that the D was negligent and at fault for the injury to recover for trespass o A landowner's unusual or uncommon use of his land that interferes with adjoining property owners enjoyment and use of their land subjects the landowner to liability for nuisance o A landowner is strictly liable for damage to adjoining land resulting from the unnatural or abnormal use of his lnad Abnormally Dangerous Activities. Liability regardless of Ds intent and regardless of whether D was negligent. airplane accidents A company that processes volatile chemicals will more likely be held strictly liable if its factory is located in a densely populated area than a sparsely populated countryside It is unlikely that courts will reject strict liability for high risk activity simply because the D choose an appropriate locale for the activity The fact that the activity could have been carried on elsewhere with less risk to the community will stregthen the case for liability but choosing an appropriate site will probably not by itself preclude application of strict liability strict liability doesnt apply to collateral injuries . explosives. the P suffered damage to person or property Must be proved: Absolute duty owed by a commercial supplier. o Abnormally Dangerous Activities General Rule: A person is strictly liable for any damage which occur s while he is conducting an abnormally dangerous activity. production or sale of defective product. crop dusting. the dangerous aspect of the activity is the actual and proximate cause of the P's injury and. actual and proximate cause and damages o Special situations of defective products 3 major contexts.
Scope of risk: There is strict liability only for damage. Contributory negligence no defense but assumption of risk is Unreasonable assumption of risk: Assumption of risk is a defense to strict liability. EX: D operates a truck carrying dynamite and the truck strikes and kills P. Workers Compensation Generally: all states have a WC statute which compensate the employee for on the job injured without regard either to the employers fault or the employee's No fault: employer is liable for on-the-job injuries even though these occur completely without fault on the part of the employer. If P knowingly and voluntarily subjects herself to the danger this will be a defense whether P acted reasonably or unreasonably in doing so. Transporting dynamite may be ultrahazardous but Ps death has not resulted from the kind of risk that made this activity abnormally dangerous. D is not strictly liable. P must show negligence. or otherwise failing to become aware of the danger from it. virtually all courts agree that this is not a defensse o Abnormal Use: If P contributory negligence consists of her abnormal use or misuse of the product this is a defense of strict liability but only if the misuse was not relatively foreseeable o Comparative negligence: Courts are split about whether P contributory negligence should result in a proportionate reduction in P strict liability recover. . Ordinarily is not a bar from strict liability recovery Defenses Based on Plaintiff Conduct Contributory negligence: A D is not as useful for strict liability and warranty as it is against a negligence claim Assumption of the risk is the only defense to an action based on abnormally dangerous activity the fact that the P failed to use reasonable Strict Liability: Only certain types are defenses o Failure to discover danger: If Ps contibutory negligence lies in failing to inspect the product. the mink kill their young in reaction to their fright. because P was conducting an abnormally sensitive activity. Abnormally sensitive activity by p: that D will not be liable for his abnormally dangerous activities if the harm would not have occurred except for the fact that P conducts an abnormally sensitive activity. which results from the kind of risk that made the activity abnormally dangerous Abnormally sensitive activity by P:D will not be liable for this abnormally dangerous activities if the harm would not have occurred except for the fact the P conducts an abnormally sensitive activity.o o o Limitations on Strict Liability: there is strict liability for damage which results from the kind of risk that made the activity abnormally dangerous. Even if the employee is contributorily negligent the statutory benefits are not reduced at all. EX: D's blasting operations frighten female mink owned by P.
. Strict Liability for Trespassory Torts and the Advent of Fault Theory: o Cases Weaver: An actor is liable for injury directly caused by his act unless he can prove himself utterly without fault.. You need to carry your own weigh.. and the conduct of the D was free from blame no action can be supported for an injury arising therefrom. SL generally applies to either storage or blasting explosives. . that risk is signifigant risk. But most have haled that the employers failure to observe safety regulations or to keep equipment in good repair does not amount to an intentional act and thus does not permit the employee to escape WC as the sole remedy 3rd parties: WC statute does not prevent the worker from suing a third party who under common law principles would be liable for the workers injuries. Held strictly liable for harm resulting from blasting bc it cause direct harm. a casualty purely accidental arises. the risk remains even when reasonable care is exercised. hazardous wastes are good candidates for SL because of abnormal danger. will naturally do harm to the land or person of another. Holds that when D has engaged in perilous activity. Dunham: abnormally dangerous activity. removing lateral support of neighbors land. if it escapes. Employee gives up his right to sue in tort and does not recover anything for pain and suffering. Sulivan v. Strict Liability Cases Rylands: Where one brings on his land something which. If there is certainty the arm will result then your short get all from nots impoundment of noxious substances(slime ponds). Thus activities which are purely personal ( traveling to and from work) are not typically covered Exclusive remedy: WC statute is the employees sole remedy against the employer. ie the injury was unavoidable. Few cases have allowed the employee to sue where the employer has willfully disregarded safety regulations. Reject the requirement of fault for liability Exner v. Arising out of employment: Typical statute convers injuries arising out of and in the course of employment. the activity is not matter of common usage. Unless P can show that employer intentionally injured him but then you can pursue common law action. Thus the terms above apply only to avoidably dangerous activities Person engaging in activity shouldnt reap all the benefits and not suffer he burdens. Sherman: they created an unacceptable danger to the community and it was for their benefit only. If reasonable care will reduce risks to less that signifigant SL does not apply.. o add slides on twen SL when: D activity creates reasonably foreseeable risk of physical harm. he will be liable regardless of fault unless the injured party was somehow neg. sks whether abonormally dangerous activity. SL can be imposed whether suddenly escape or percolate. Brown: If in the prosecution of a lawful act.
Warranty. Usually the injury is personal injury. Mere fact that D has sold a negligently manufacture or designed product is not by itself enough to show that she failed to use due care.Products Liability Introduction 3 theories: refers to the liability of a seller of a tangible item which because of a defect causes injury to its purchaser. strict liability Negligence o Negligence and privity: neg rules apply to a case in which personal injury has been caused by a carelessly manufactured product. Thus suit against . or sometimes bystanders. It is now the case that one who negligently manufactures a product is liable for any personal injuries proximately caused by his negligence. proceeding. Liability can be based upon any of the 3 theories. HOWEVER 3rd parties who stand to beenfit from the contract are sometimes found to have rights within that contract Nonfeasance: when there is only the promise and breach of contract only the contract action will lie and no tort action can be maintained Misfeasance: When the D misperforms the contract the possibility of recovery in tort is greatly enhanced Bystander: P is a bystander then P can recover in negligence if he can show that he was a foreseeable P. user.all products are defective Negligent manufacturing . or piece of property). each havin a legally recognized interest in the same subject matter ( such as transaction. The retailer ordinarily has no duty to inspect the goods. Negligence. the connection of relationship between two parties.. Privity: use of negligence in product liability actions was limited by requirement of privity ie the requirement the P must show that he contracted directly with D.only that product is defective Negligent warnings Negligent inspection o Who can be a P? Anyone who is in the foreseeable "zone of danger" including bystanders o Classes of Defendants: Manufacturers: the manufacturere is the person in the distribution chain who most likely to have been negligent. May be negligent because he carelessly designed the product carelessly manufactured it carelessly performed (or failed to perform) reasonable inspections and tests of finished products failed to package and ship the product in a reasonably safe way or did not take reasonable care to obtain quality components from a reliable source Retailers: a retailer who sells a defective product may be but usually is not liable in negligence. mutuality of interest ONLY parties to the contract or in PRIVITY to the contract can be bound by them.four types (breach of duty of care) Negligent design . But every state ha no rejected the privity requirement where a negligently manufactured product has caused personal injuries. o Conduct is critical .
Limitation of consequential damages: Seller may limit the remedies available for breach Products Liability o Strict liability Rule: Nearly all states apply the doctrine of strict product liability. Also the word merchantability must be specifically mentioned. EX: Consumer can recover . and any other person in the distributive train (wholesaler) who is in the business of selling such products. Non-manufacturer: Strict product liability applies not only to the product's manufacturer but also to its retailer. sellers. the retailer is now normally brought on a warranty or strict liability theory not negligence. Other Suppliers: bailors of tangible property. Basic rules is that a seller of a product is liable without fault for personal injuries (or other physical harm) caused by the product if the product is sold in a defective condition. lessors of real estate and suppliers of product-related services may all be used on a negligence theory o Warranty under Products Liability A buyer of goods which are not as they are contracted to be may bring an action for breach of warranty. Two types of warranties EXPRESS and IMPLIED Express Warranties: A seller may expressly represent that her goods have certain qualities. Once defect is shown seller is liable even though he used all possible care and even though the P did not buy the product from or have any contractual relationship with the seller. If the good turn out not to have those qualities. or even that D could not possibly have known that it was untrue Implied Warranty: The existence of a warranty as to the quality of goods can also be implied from the fact that the seller has offered the goods for sale Good must be fit for ordinary purposes for which they are used Seller must be in business and must regularly sell the kinds of goods in question states have nearly all rejected the idea of a privity requirement for the implied warranty Privity: States have nearly all rejected any privity requirement for the implied warranties A manufacturer warranty extends to remote purchasers down the line In most states any user and even any foreseeable bystander may recover Warranty Defenses: There are 3 Disclaimers: Seller may disclaim implied and express warranties o Merchantability: A seller may make a written document of a warranty of merchantability but only if it is conspicuous ( letters big and in bold). the purchaser may sue for this breach of warranty Strict Liability: D's liability for breach of an express warranty is a kind of strict liablity as long as P can show that the representation was not in fact true it doesnt matter that D reasonably believed it to be true.
design. What products meets test: only if it is defective ( What is a Defective Product?) Defective definition: a product is defective if the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product. Under the test the food product is defective if and only if it .so if the risk of harm from the design is unknowable at the time of manufacture. A design defect will exist only "when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design". Types of Defects: Manufacturing. Something went wrong when it was made so its a lemon of sorts o Design: All the similar products manufactured by D are the same and they all bear a feature whose design is itself defective and unreasonably dangerous. and 3) a warning defect. and failure-to-warn defects: there are 3 diff types that may exist 1) a manufacturing defect 2) a design defect. o Warning: In a failure to warn case the maker has neglected to give a warning of danger in the product and this lack of warning makes an otherwise-safe product unsafe. o Defective Food Products: Approached with the consumer expectation method Unavoidably unsafe products: if it is this plus it benefits outweigh its dangers Prescription drugs: mere side effects are not enough. most courts apply a "consumer expectation test". there was no "foreseeable risk" and thus no design-defect liabilty Failure to Warn: similarly there can be no "failure to warn" liability for a danger whose existence was unknowable at the time of manufacture Food Products: Where the product is food. Diff rules governing diff defect o Manufacturing: In a manufacturing defect the product is diff from and more dangerous than all the others because the product deviated from the intended design. They are no unavoidably unsafe as long as there is a single group of patients for whom the benefits outweigh the harms o Consequences: As long as the drug has a net benefit for one group of patients the maker doesnt need to make the drug safe as it could be with reasonable effort! Because of this many courts have rejected this and require manufacturers to make reasonable effort to make the drug safe Unknowable dangers: If the danger was unknowable at the time of manufactured there will be no liability. Manufacturing Defects: P will prevail if the product was dangerous beyond the expectation of the ordinary consumer becuase of a departure from its intended design. against dealer even though dealer merely resold the product and behaved completely carefully.
because if P is actually aware of the obvious danger the warning wont add anything. but it doesnt automatically mean that P cant recover. and if P isnt aware of the obvious danger he is unlikely to notice or respond to the warning either. and thus on whether D is liable. a design defect.Design Defects. under the modern view the obviousness of the defect is a factor bearing upon liability. Instead the question is whether the designs benefits outweigh its dangers considering possible alternative designs if no then P can recover even though he danger was obvious Failure-to-warn: If the defect or danger is obvious. or a failure to warn. . In a design defect case all teh similar products manufactured by D are the same and they all bear a feature whose design is itself defective and unreasonably dangerous P must show a reasonable alternative design ie that a less dangerous modification or alternative was economically feasible o Factors that the courts consider Feasible alternative Usefulness and desirability of the product Availability of safer alternative products the dangers of the product that have been identified by the time of trial likelihood and probable seriousness of injury obviousness of danger normal public expectation of danger Avoidability of injury by care in use of product ( including the role of instructions and warnings Feasibility of eliminating the danger without seriously impairing the products function of making it unduly expensive diff from a manufacturing defect. Obvious Dangers: the fact that a danger is obvious may have an impact on whether the product is deemed defective. this will normally prevent failure-to-warn liability. Def: A design defect must be distinguished for a manufacturing defect. The treatment of obviousness depends on whether the defect is manufacturing defect.generally applicable in products liability cases. Manufacturing defect: When a defect is a manufacturing defect the fact that the danger or defect is obvious probably wont block P from recovering (though under comparative fault .might reduce P's recovery) Design Defect: If what's alleged is a design defect.contains an ingredient that a reasonable consumer would not expect it to contain. . Proving the case: P in a strict liability case must prove that the item was made or sold by the D that the product was defective that the defect caused the P injuries and that the defect existed when the product left the D hands o Cases on Excluding Stand-Alone Economic Harm: Moorman: Strict products liability does not apply to purely economic losses Manufacturing Defect Cases: o Lee: A defect in a product may be inferred from circumstantial evidence making a defect more likely than not.
This is not by itself enough must also show that the product was unreasonably dangerous and foreseeably would cause harm similar to that suffered by the P Strict Products Liability: Product is defective in its design when the seller could have reduced or avoided the products foreseeable risks of harm by the adoption of a reasonable alternative design and the omission of the alternative design renders the product unreasonably safe. Obvious danger and design defect: A product that presents an obvious danger and thus provides its won warning may still be defectively designed. the product had a structural weakness which caused it to break or otherwise become dangerous o Lack of safety features: P shows that a safety feature could have been installed o the product with so little expense (compared the costs of the product and the magnitude of danger without the feature) that it is a defective design not install that feature. Suitable for unintended uses: D may be liable not only for injuries when product is used intended but also unintended. Diving into a pool of unknown depth is obviously dangerous so no warning for that is required. and the omission of the alternative design renders the product not reasonably safe. A product can be unreasonably dangerous under the risk utility test even if it is not more dangerous that the consumer expected. State of art: D will be permitted to rebut this by showing that competitive product similarly lack the safety feature. However if the manufacturer could have foresee that harm will befall users in spite of obvious danger. o P must show that there was a reasonable alternative design (RAD) courts will look at costs and utility Requires the P to prove that a reasonable alternative design (RAD) was or reasonably could have been available at the time the product was sold or distributed. and sometimes a warning is sufficient.. Must anticipate reasonably foreseeable uses Military products sold to and approved by government then the manufacturer will typically be immun even if the design is grossly negligent What if it is done by a independent govt contractor who has a history of this? then under above rule would they be liable in some way GET GOVT LIABILITY FROM CLASS . guns have no alternative design bc they are meant to inflict damage Here a the similar product manufactured by D are the same and they all bear a feature whose design is itself defective. the consumer expectation test cannot be used to bar the P in such a case 2 types of claims for design-defect o Structural defects: P shows that because of D's choice of material. the manufacturer may be liable for design defect if it could easily mark the depth and failed to do so. o Unforeseeable misuse: if not reasonably foreseeable misuse then D has no duty to design the product against misuse o Foreseeable misuse: If the misuse is reasonably foreseeable by D then D must take a reasonable design precautions to guard against the danger from that use. and unreasonable dangerous Negligence predominates: a product has a defective design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor ..
Cases o Knitz: A product is defective in design if it is more dangerous than a consumer would reasonably expect or the benefits of the design do not outweigh the risk. D may be liable for not giving instructions concerning correct use. not its intrinsic function .Complying with all regulations to make your product does not absolve you from product liabilty o if regulations require a label P may still bring a suit claiming that the design or labeling was inadequate and constituted a defect o Labeling: If government requires that a substance be designed or labeled in a particular way. it tested defect/unreasonable danger by asking whether the product was dangerous beyond the contemplation of the consumer. if a reasonable consumer might misuse the product in a foreseeable way. and the manufacturer follows that then P may still be able to being a product liability on the theory that the design or labeling was inadequate and constituted a defect.and the omission of the instructions or warnings renders the product not reasonably safe. taking into consideration the utility of the product and the risks involved in its use. Consumer Expectation test: In effect imposes strict liability when the product was defective and unreasonably dangerous. o McCarthy: A products defect is related to its condition. Design Defect: If this is the case then a warning will generally not shield D from strict product liability Properly manufactured and designed product: D must nonetheless give a warning if there is a non-obvious risk of personal injury from using the product. o If the danger is truly obvious the product seldom be defective under the consumer expectation test since the consumer could not expect safety in the fact of obvious danger. Risk-utility basis: Liability for failure to warn is usually based on a negligence like risk-utility analysis. most courts hold that there was no duty to warn of unknown danger Danger to small number of people: If the manufacturer knows that the product will be dangerous to a small number of people.. the need for a warning will usually turn . o Norman: A claimant not only must meet the proof requirements of the statue but must who that a product was defectively designed so as to be unreasonably dangerous. o Can occur even if there is nothing at all wrong with the products design o Typically affect only a small percentage of a manufacturer products in a particular product line o A product contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product.Duty to Warn Duty to warn is essentially an extra obligation placed on manufacturer Manufacturing defect: is a product is defectively manufactured no warning can save D from strict liability. Unknown and unknowable dangers: If D can show that it neither knew nor in the exercise of reasonable care should have known of a danger at the time of sale. o Physical departure from a products intended design. A product will be deemed defective on account of inadequate instructions or warnings when the foreseeable risks of harm imposed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings. Similarly..
and the claim is based upon the D manufacturer's failure to place a warning liable on the product. . if there is evidence that even had P read the warning P would have ignored the warning and used the product is the same way so that the accident would have happened anyway.learned intermediary: many courts say that a manufacturer must provide warning only to the doctor who might prescribe not only the patient in fact give appropriate warning or information to the physician it is said that the physician is a learned intermediary upon whom the manufacturer can properly rely and the warning can be couched in terms the physician can understand not necessarily terms the consumer would grasp . o P who does not read warning or ignores them: For example. . A duty to warn probably exists event though the defect was not knowable at the time of manufacture. Government labeling standards: The scope of D's duty to warn may be affected by the fact that the government imposes certain labeling requirements Post-sale duty to warn: Courts have disagreed about the extent to which a manufacturer has a duty to make a post-sale warning about dangers of which the manufacturer was not aware at the time of manufacture. if the danger is great enough even a small number of potential bad results will require a warning. failure tow ant will not be the basis for liability. Warnings must be reasonably clear and of sufficient force and intensity to convey the nature and extent of the risk to a reasonable person o Duty to monitor: Some courts have held that the manufacturer has a duty not only to warn about dangers or defects that it learns about but also an affirmative duty to keep abreast of the field by monitoring the performance and safety of its products after sale. and substantial minority of people might not otherwise know of the danger the court may nonetheless find a duty to warn. Such an affirmative duty of monitoring and testing is most likely to be found in cases involving prescription drugs. assuming the risk is great and the user of the product can be identified.warning to the intended consumer -sophisticated user: experts at using the product so dont need the same detail warning . if the provision of a warning would not have prevented the accident from occurring then the D will not be liable for failing to warn. Obvious danger: If the danger is obvious to most people this will be a factor reducing D's obligation to warn.Warning Defects . Risk utility almost always yes. evidence that the P never read any warning labels would prevent failure to warn liability. Similarly. be sure to check that the requirement of a causal link between the failure to warn and the resulting injury is satisfied. But where a warning could easily be given. in a case in which the injured P is the one who was the user of the product. o Duty to warn when manufacturer learns of the risk: Most common approach is to hold that if the manufacturer eventually learns about the risk it has an obligation to give a post-sale warning.Prescription Drugs: whether the harm the drug prevents is outweighed by the harm that it avoids. Hidden causation issue: In any failure to warn situation. on the magnitude of the danger.needs to be a reasonable clear warning and of sufficient force and intensity to convey the nature and extend of th risk to a reasonable person pg 674 .
but a remote person (the manufacturer) he will probably not recover anything if his only harm is an intangible economic one. Unless a product is incorporated in service. Indemnity: If the retailer is held liable in this way she will be entitled to indemnity from the manufacturer or wholesaler as long as the retailer was not herself negligent o Used goods: Courts are split as to whether there is strict or warranty liability for the seller of used goods. Remote purchaser and non-purchaser: Where P is suing not his own seller. Lessor of goods: Courts sometimes impose strict liability here' o Negligence or warranty liability: may be liable for neg in failing to discover the defect or on an implied warrant theory Sellers of real estate: only subject to strict and warranty liability so if a dangerously defective only builder probably liable Services: One who sells services rather than goods doesnt fall within the standard of strict liability nor UCC warranties. o Warranty: Most courts would deny an implied warranty claim on the grounds that P must sue his won immediate seller for such breaches o Strict Liability: Almost all courts would deny recovery to the remote buyer for economic harm on a strict liability theory. . o Combined: Remember that if P can show that he has received either physical injury or property damage. Definetly the case in a negligence action and possibly true in a strict liability or warranty action. o Negligence: Most courts deny P recovery in negligence for pure intangible economic harm o Non-purchaser: Same is true where P is not a purchaser at all ( P is a bystander) P probably cant recovery on any theory for his intangible economic loss. he may then be able to tack on his intangible economic harm as an additional element of damages.Who May be a D? Chattels: In any case involving a good or chattel both strict and warranty liability will apply to any seller in the business of selling goods of that kind. There can also be one warning that covers both design and warning defect -policy for not putting warning everywhere is that they would lose their efficacy Cases on Warning or Information Defects o Liriano: What kind of conduct is required to reach the usual standard of care is a question of fact and therefore a question for the jury.does not eliminate there is a design defect. Only warning that makes things better is required. Probably most courts would hold that there is no such liability.. But this is true only if the seller is in the business of selling goods of that type. Just becuase a danger is obvious then it does nto take away your duty to warn as an alternative. o Lewis: P's state a claim for civil conspiracy where they allege an agreement and tortious conduct in furtherance of the agreement. NOT ON EXAM o Ruth v.basic standard when the product could produce foreseeable risk/harm could have been reduced or avoided with a warning . pittaway . o Retailer: Retailer who sells the good but has not manufactured it will have strict liability as well as warranty liability. even if she could have done nothing to discover the defect. even if they are unable to identify which of the D was the active tortfeasor.
bystanders .potential problem with consumer expectations when cusumer dont have a knowledge to form expectancy. Norman. policy level defenses as they apply to strict liabilty and product liability are diff post sale warning with cars re statement ON EXAM statutory recall defenses to strict products liability accepted and rejceted here contrib neg rejected here how substantial is the modification and how easy is it to achieve a mere disclaimer does not absolve you of tort libaility but can disclaim warranty liability no workers compensation but simply know the employee cant sue employer simply know the basis .if strict liability then it doesn't matter if its natural bc it still could have injured you?? .when do manufacteror who are dealing with more experience user then you get another test where you do a risk outweighing the benefit relavative to the reg ppl getting injur an dproductivity going up likelihod that product will cause injury restatement not expecting perfection in product liability even if you have been careful and done alot of research then in neg context you have to spend more money to find more dangers so they say you dont have to research any that is not forseen but product libaility says pend alot of mney think of all the uses your product could be put to use to WHAT CASE WITH the ricky car door is good for the exam adn risk utility fo the designa nd still have to prove there is a reasonable alternative design Honda v. o Failure to discover the risk: P may fail to negligently discover that there is a defect at all.Nuisance Type of injury: Injury is the loss of any right that P has b virtue of being a member of the public or interference with his use or enjoyment of his land.. D will not be relieved from liability unless the misuse was so unforeseeable or unreasonable that either: (1) the misuse couldn't reasonably be warned against or designed against or (2) the misuse is found to be superseding. . This not negligence because one is entitled to assume that is not defective. .Defenses Based on Plaintiff's Conduct: General rule of P negligence applies: Usually whatever JD standard method of dealing with P negligence (if they apply contri/comparative) then that method applies to productliability actions.Defenses . o Knowing assumption of the risk: P may be aware of the product defectiveness but may decide to still assume the risk of that defect this will be treated as comparative negligence to the extent that Ps decision to use the product in the face of unknown risk was unreasonable it will cause P recovery to be reduced proportionately ( not necessarily an absolute bar) o Use for unintended purpose: If P totally misuses the product. like crab cakes with shell under the customer expectation test there would have been liabilty .most jd go with consumer expectation .when is food defective?: If a reasonable customer doesn't expect the food to contain it and foreign natural doctrine (it its natural but not in the food.when doesnt the consumer expectation test work? . Differnet types of negligence by P: There are a number of different ways in which a P might behave negligently with respect to a product.
even by microscopic particles. o D knows only that her conduct causes a non-trespassory invasion and does not know or believes the invasion is serious (burning leaves in the fall) o D knows only that its conduct risks an invasion of P interest but does not know that any invasion is certain. abnormally dangerous or intentional) Types of situations o D knows that its conduct causes non-trespassory invasions and knows it causes substantial and significant annoyance. o Survivors Act ( prior to death) allows you to bring a claim on behalf of the deceased can recover for pain and suffering between life and time of death (lost wages) allows you to sue D if D dies oly prob is when died quickly . 3 Mental States Intentional interference with P's rights Negligence Abnormally dangerous activity or other conduct giving rise to strict liability Public Nuisance: Interference with a right common to the general public o Need not be a crime o Health hazard o Improper business o Obstruction of a public area o Must be an injury to the public at large Private Nuisance: Unreasonable interference with P's use and enjoyment of his land in a substantial way (either negligent conduct. o D causes no physical invasion at all.