This action might not be possible to undo. Are you sure you want to continue?
Purpose of Torts
1. Provide a peaceful means for adjusting the rights of parties who might otherwise "take the law into their own hands" 2. Deter wrongful conduct 3. Encourage socially responsible behavior 4. Restore injured parties to their original condition, insofar as the law can do this, by compensating them for their injury 5. Vindicate individual rights of redress
First, review the fact pattern to spot each individual tort that has, or may have been, committed. Then, for each tort you have identified: 1. Prima facie case: Say whether a prima facie case for that tort has been made. 2. Defenses: Analyze what defenses and justifications, if any, D may be able to raise. 3. Damages: Finally, discuss what damages may be applicable, if the tort has been committed and there are no defenses. Pay special attention to: (1) punitive damages; (2) damages for emotional distress; (3) damages for loss of companionship of another person; (4) damages for unlikely and far-reaching consequences; and (5) damages for economic loss where there has been no personal injury or property damage.
3 Types of Torts
1) Intentional Torts: behavior that is intentional in some way, causes injury, and is deemed tortious 2) Negligent Torts: behavior that unreasonably risks personal/property injury to another. Here, the defendant has not intended to bring about a certain result, but has merely behaved carelessly. There are no individually-named torts in this category, merely the general concept of "negligence." 3) Strict Liability Torts: Behavior that is tortious because it causes unlawful personal/property damage to another, regardless of fault, reasonableness, etc. Here, the defendant is held liable even though he did not intend to bring about the undesirable result, and even though he behaved with utmost carefulness. There are two main individually-named torts that apply strict liability: a. Conducting of abnormally dangerous activities (e.g., blasting); and b. The selling of a defective product which causes personal injury or property damage.
A. Meaning of intent: There is no general meaning of "intent" when discussing intentional torts. For each individual intentional tort, you have to memorize a different definition of "intent." All that the intentional torts have in common is that D must have intended to bring about some sort of physical or mental effect upon another person. [6 - 7] 1. Act w Purpose or Desire desire to bring about certain consequences even if No intent to harm: The intentional torts generally are not defined in such a way as to require D to have intended to harm the plaintiff. (Example: D points a water gun at P, making it seem like a robbery, when in fact it is a practical joke. If D has intended to put P in fear of imminent harmful bodily contact, the "intent" for assault is present, even though D intended no "harm" to P.) 2. Substantial certainty: If D knows with substantial certainty that a particular effect will occur as a result of her action, she is deemed to have intended that result. (Example: D pulls a chair out from under P as she is sitting down. If D knew with "substantial certainty" that P would hit the ground, D meets the intent requirement for battery, even if he did not desire that she do so. [Garratt v. Dailey]) a. High likelihood: But if it is merely "highly likely," not "substantially certain," that the bad consequences will occur, then the act is not an intentional tort. "Recklessness" by D is not enough. 3. Act distinguished from consequences: Distinguish D’s act from the consequences of that act. The act must be intentional or substantially certain, but the consequences need not be. (Example: D intends to tap P lightly on the chin to annoy him. If P has a "glass jaw," which is broken by the light blow, D has still "intended" to cause the contact, and the intentional tort of battery has taken place, even though the consequences – broken jaw – were not intended.)
a. Restatement (2nd) § 2: “An act” is “an external manifestation of the actor’s will and does not include any of its results, even its most direct, immediate, and intended.” b. To illustrate, comments clarify: when actor points a pistol at another person & pulls the trigger, the act is the pulling of the trigger. The consequence of that act is the “impingement of the bullet upon the other’s person.” (Example: “In a forest area, Ken deliberately pulls the trigger of a rifle. He hopes to hit a wild deer, and he is unaware that any person is in the vicinity. The gun discharges. In fact, Nancy is nearby and is struck by the bullet. Ken has intentionally shot his gun. Yet he has not intentionally caused the harm to Nancy; he did not act with the purpose to produce that harm nor did he know that the harm was substantially certain to occur.” 1. Restatement 3d: intent refers to “consequences” (Ken, the hunter).
(A) (B) (C) (D) (E)
Intent is subjective (will look at what D desired or knew) & but look to objective, circumstantial indicators of intent. (Garratt v. Dailey) Continuum of intentionality, including intent and negligence (“the distinction between intent and negligence boils down to a matter of degree.”) (Spivey v. Battaglia). Mistake does not negate intent. (Ranson v. Kitner) (no need malicious motive) Mental illness does not negate intent. (McGuire v. Almy). Kids (but not infants) are capable of intent. (Garratt v. Dailey).
1. Between People: Talmage v Smith 2. Between 5 original trespass torts (assault, battery, false imprisonment, trespass to land, trespass to chattels) 3. DNA to IIED
A. Definition: Battery is the intentional infliction of a harmful or offensive bodily contact. (Example: A intentionally punches B in the nose. A has committed battery.) In a rude, insolent, harmful or angry manner 1. Any touching, however slight, MAY constitute an assault and battery 1. We all have an intuitive sense whether a touch is harmful. Holmes observed: even a dog know the difference between being tripped over and being kicked. (Wallace v. Rosen) B. Intent: It is 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 bodily contact; or (2) D intended to cause an imminent apprehension on P’s part of a harmful or offensive bodily contact. Example 1: D shoots at P, intending to hit him with the bullet. D has the necessary intent for battery. Example 2: 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 (i.e., the "intent to commit an assault" suffices as the intent for battery). No need for harmful intent/malicious to actually hurt somebody if there is an intent to bring about consequences C. Harmful or offensive contact: If the contact is "harmful" – i.e., it causes pain or bodily damage – this qualifies. But battery also covers contacts which are merely "offensive," i.e., damaging to a "reasonable sense of dignity." Example: D spits on P. Even if P is not "harmed" in the sense of being caused physical pain or physical injury, a battery has occurred because a person of average sensitivity in P’s position would have her dignity offended. D. P need not be aware: It is not necessary that P have actual awareness of the contact at the time it occurs. (Example: D kisses P while she is asleep. D has committed a battery.) E. P's body (or an extension of the body is an offensive invasion of a person - just as actual contact w the body Fisher v. Carousal – expanded the notion of “Body”) F. Judge offensiveness on RP standard (Wallace v. Rosen) 1. Prosser n Keeton’s Crowded World: A certain amount of Personal contact is inevitable and must be accepted (Wallace v. Rosen – fire alarm)
2. unless D knows P is particularly vulnerable 2. Will look to relationship between the parties 3. (Vosburg v. Putney) schoolboy playfully kicked another on the shin. Did not intend harm – but did intend to kick him. Liable for battery even though the injury could not have been foreseen. 4. Do-gooders can be liable. (P fell at roller rink – broken arm – over the protests of P – D manipulated the arm in an attempt to set it) 5. Damages: Punitive is especially egregious otherwise - $ to put them back where they were 6. AIDS case – battery action alleged - consent to sex does not bar action.
POLICY REASONS - Why should the law provide any remedy if there is no bodily harm? Prevent others from acting out in violence as they might w assault. deterrence One of the goals of the tort system is to cut down on vigilante justice You might not recover from a battery if you have to wait till you get shot/struck w the hatchet Concerned not about IF they can actually to the harm, but if it APPEARS that they can A. Definition: Assault is the intentional causing of an apprehension of harmful or offensive contact. “an unlawful attempt to commit a battery” a. Example: D, a bill collector, threatens to punch P in the face if P does not pay a bill immediately. Since D has intended to put P in imminent apprehension of a harmful bodily contact, this is assault, whether D intends to in fact hit P or not. b. Apprehension (less than fear) of battery – (the victim must have an APPREHENSION of contact, it is not necessary that the D have the actual ABILITY to carry out the threatened contract- Western Union v. Hill) c. The apprehension is the harm. Its sufficient (I de S) B. Intent: There are two different intents, either of which will suffice for assault: 1. Intent to create apprehension: First, D intends to put P in imminent apprehension of the harmful or offensive contact, even if D does not intend to follow through (e.g., D threatens to shoot P, but does not intend to actually shoot P); or 2. Intent to make contact: Alternatively, D intends to in fact cause a harmful or offensive bodily contact. (Example: D shoots a gun at P, trying to hit him. D hopes P won’t see him, but P does. P is frightened, but the shot misses. This is assault.) 3. Summary: So D has the requisite intent for assault if D either "intends to commit an assault" or "intends to commit a battery." C. No hostility: It is not necessary that D bear malice towards P, or intend to harm her. (Example: D as a practical joke points a toy pistol at P, hoping that P will falsely think that P is about to be shot. D has one of the two alternative intents required for assault – the intent to put P in imminent apprehension of a harmful or offensive contact – so the fact that D does not desire to "harm" P is irrelevant.) D. "Words alone" rule: Ordinarily, words alone are not sufficient, by themselves, to give rise to an assault. Normally there must be some overt act – a physical act or gesture by D – before P can claim to have been assaulted. (Example: During an argument, D says to P "I’m gonna hit you in the face." This is probably not an assault, if D does not make any gesture like forming a fist or stepping towards P.) 1. Special circumstances: However, the surrounding circumstances, or D’s past acts, may occasionally make it reasonable for P to interpret D’s words alone as creating the required apprehension of imminent contact. OR – exceptions: (your money or your life) C. E. Imminence: It must appear to P that the harm being threatened is imminent, and that D has the present ability to carry out the threat. (Example: D threatens to shoot P, and leaves the room for the stated purpose of getting his revolver. D has not committed an assault on P.) (“a well-founded fear of an imminent battery” – Western Union v. Hill) a. The perpetrator must possess “the apparent present ability to effectuate the attempt”. b. P must think D is have been able to carry out the battery - D’S perception must be reasonable i. RP standard c. Q for the jury if D could have carried out battery - Context is important F. P unaware of danger: P must be aware of the threatened contact.
G. Threat to third persons: P must have an apprehension that she herself will be subjected to a bodily contact. She may not recover for her apprehension that someone else will be so touched. (Example: P sees D raise a pistol at P’s husband. D shoots and misses. P cannot recover for assault, because she did not fear a contact with her own body.) H. Conditional threat: Where D threatens the harm only if P does not obey D’s demands, the existence of an assault depends on whether D had the legal right to compel P to perform the act in question. (Example: P, a burglar, breaks into D’s house. D says, "If you don’t get out, I’ll throw you out." There is no assault on P, since D has the legal right to force P to leave.)
A. Definition: False imprisonment is defined as the intentional infliction of a confinement. Example: D wants to have sex with P, and locks her in his bedroom for two hours hoping that P will agree. She does not, and D lets her go. This is false imprisonment, because D has intentionally confined P for a substantial time. a. direct restraint of one person of the physical liberty of another w/out adequate legal justification Big Town Nursing Home v. Newman B. Intent: 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. The tort of false imprisonment cannot be committed merely by negligent or reckless acts. (Example: D, a shopkeeper, negligently locks the store while P, a customer, is in the bathroom. This is not false imprisonment, since D did not intend to confine P.) C. "Confinement": The idea of confinement is that P is held within certain limits, not that she is prevented from entering certain places. (Example: D refuses to allow P to return to her own home. This is not false imprisonment – P can go anywhere else, so she has not been "confined.") a. P must show he was restrained unlawfully and against his will (Hardy v. LaBell's Distributing CO. - Hardy admitted that even though she felt compelled to stay in the office, she wanted to stay anyway. Therefore, the court argues, it is reasonable for a jury to find that the plaintiff was not held against her will.)
D. Means used: The imprisonment may be carried out by direct physical means, but also by threats or by the assertion of legal authority. 1. Threats: Thus if D threatens to use force if P tries to escape, the requisite confinement exists. 2. Assertion of legal authority: Also, confinement may be caused by D’s assertion that he has legal authority to confine P – this is true even if D does not in fact have the legal authority, so long as P reasonably believed that D does, or is in doubt about whether D does. (Example: Storekeeper suspects P of shoplifting, and says, "I hereby make a citizen’s arrest of you." Putting aside whether Storekeeper has a privilege to act this way, Storekeeper has "confined" P, if a reasonable person in P’s position would think that Storekeeper had the authority to make such an arrest, even if under local law Storekeeper did not have that authority.) E. P must know of confinement: P must either be aware of the confinement, or must suffer some actual harm. (Example: P is locked in her hotel room by D, but P is asleep for the entire three-hour period, and learns only later that the door was locked. This is probably not false imprisonment.) 1. (Parvi v. City of Kingston) – drunk but still aware 2. OR if unaware of it BUT harmed by it 1. Baby FI in room w out food – dehydrated F. Analogy w key and lock. (If I am unlawfully locked in a room without access to a key, then I have been falsely imprisoned. Likewise, if I am kept on a yacht without access to a rowboat, I have been falsely imprisoned. Putting someone on a yacht, same as locking the door - Whittaker v. Sandford) a. Can there be FI in moving automobile -yes b. City/state = yes c. Country = no (Taiwan) d. FI does not need to be small space
"Extreme and outrageous": P must show that D’s conduct was extreme and outrageous. If 1 exit is locked. Shopkeeper's privilege: can reasonably hold someone to determine if you've actually shoplifted (POLICY) 7. (2) P is present. or his estate. Immediate family present: The main exception is that the transferred intent doctrine is applied if: (1) D directs his conduct to a member of P’s immediate family. D’s conduct has to be "beyond all possible bounds of decency. Food Fair Stores of Florida). If it’s a joke? = Yes 5. D beats up P’s father. (Example: D commits suicide by slitting his throat in P’s kitchen. i. Most cases do not require P to show that the distress resulted in bodily harm. but another one is open = no 4. W no food/water/toilet doesn’t work? Law on airlines side. and (3) P’s presence is known to D. even in the absence of physical harm (words are enough). a. Siliznoff). [State Rubbish Collectors Assoc. Siliznoff] B. . What if stuck on tarmac for 11hrs. D will severely beat P. but rather for failing to produce her driver’s license. does not pay over part of his garbage collection proceeds to D and his henchmen. When P makes escape. tells P that her husband has been badly injured in an accident. Transferred intent: (D don’t know she was watching when they beat up her dad – not liable Taylor v. he recklessly disregarded the high risk that distress would occur. Definition: This tort is the intentional or reckless infliction. D. (Example: While P is present. the court cites a change in the law reflected in the Restatement of Torts that says there may be an action for infliction of severe emotional distress (State Rubbish Collectors Association v. 9. (2) D knows with substantial certainty that P will suffer emotional distress. Mistake is no excuse. P bears some of the risk/burden in assessing that it’s reasonable. bc that’s the tort: INTENTIONAL IED ii. A. Since D’s conduct is extreme and outrageous. Transferred intent applies. Most likely would settle 8. D is liable for infliction of mental distress. can't arrest. If P suffers severe emotional distress.) C. a garbage collector. Example: D threatens that if P. Vallelunga) Intent is important.2. ("Liability only for conduct exceeding all bounds which could be tolerated by society Slocum v. and since he has intended to cause P distress (which he has succeeded in doing). is liable for intentional infliction of mental distress because although P did not desire to cause distress to P. P must show at least that her distress was severe enough that she sought medical aid. IIED The old rules state that the law will not protect individuals from invasions of their emotional and mental well-being. The court reasons that the officer did not have proper legal authority because there he evidence he did not arrest Groves for the dog leash violation. Student who moves out of moving bus = unreasonable 3. a court will probably allow her to recover from D. or even know that distress was substantially certain. Siliznoff). Intent: "Intent" for this tort is a bit broader than for others." High Threshold Example: D. (Enright v. and (3) D recklessly disregards the high probability that emotional distress will occur. a. Courts want to stay away from determining a cult/religion 10. i. unless probable cause or a warrant produced. P would not be required to make escape thru a sewer 6.) i. as a practical joke. If obvious escape . v. There are three possible types of culpability by D: (1) D desires to cause P emotional distress. False Arrest can be FI if arrest them for something not against the law a. and known to D to be present. Good faith belief that confinement is beneficial is no excuse. and is lying in the hospital with broken legs. You consent to be on an airplane. Groves). P must be affected in SEVERE way (As a result of the threats. However. D. P got physically ill and missed several days of work State Rubbish Collectors Association v. UNLAWFUL ARREST b.not FI a. This conduct is sufficiently outrageous to qualify. not P. by extreme and outrageous conduct. of severe emotional or mental distress. even though D’s conduct was directed at the father. Actual severe distress: P must suffer severe emotional distress.
g. Buses/public transport. or (3) D puts an object on (or refuses to remove an object from) P’s land without permission EXAMPLE: (Rogers v. Context is important: If KNOW of particular susceptibility/vulnerability and exploit it – liable a. If not showing – may not be liable – knowledge is required b. so intense as to constitute the 'severe' emotional distress required to recover for the tort of intentional infliction of emotional distress. There must be a causal connection between the wrongful conduct and the emotional distress (Harris v. Crying is not enough c. There is no strict liability.. Trespass to Land A. to enter P’s property.Harris v. Pregnant women are presumably especially physically sensitive i." and returns it unharmed. (See Cohen v. He “trespass by continued presence” may lie if consent of some object’s presence has been terminated) The act. Szybiak The court finds no evidence in the record to show that Elaine injured the dog. courts seem to recognize that people are particularly sensitive about religion and race c. This is a trespass) D. Board of Road Com’rs for Kent County D failed to remove a post as agreed. including particles or gases. Crowded world – sometimes feelings will get hurt D. below). HARMLESS MEDDLING IS NOT TRESSPASS TO CHATTLES . However. . Common Carriers may be held to a higher standard. Therefore. Jones – he already stuttered before IIED) E. What if trip into the land? Not liable . (Example: D. vibrations. Jones). kids/rape victim are more vulnerable F. Not general businesses like in Slocum.humiliation suffered was not.Merely 'shooting the gun' is enough B. "trespass" occurs when either: (1) D intentionally enters P’s land. (Example: D’s factory spews pollutants onto P’s land. Particles and gasses: If D knowingly causes objects. Negligence: If D negligently enters P’s land. Definition: As generally used. POLICY: Courts have gate-keeping function.don’t have to attend consequences of trespassing. Trespass to Chattels A. D has committed trespass to chattels. Sutherland – disturbing peaceful enjoyment of land is a trespass) 3. crossing the border . (Herrin v. Loss of possession: If P loses possession of the chattel for any time. recovery is allowed even if the chattel is returned unharmed. and (2) the flight substantially interferes with P’s use and enjoyment of his land (e. this is generally treated as the tort of negligence. 1. (Example: D takes P’s car for a five-minute "joy ride. even if she entered rightfully. Air space: It can be a trespass for a plane to fly over P’s property. Not Efficient to take any case of hurt feeling. (stutterer . not trespass. loses control of the aircraft.) Example: CompuServe – Don’t need to show actual dispossession of the chattel to find for P B. P has to SHOW Damages Example: Glidden v.b. as a matter of law. Intent: The term "trespass" today refers only to intentional interference with P’s interest in property. This is not trespass to land. petty when guy faints while driving and is not liable) C. the court concludes Elaine did not commit a tort at the time of her injury. NO need to show damages 4. pollution). today most courts find liability only if: (1) the plane enters into the immediate reaches of the airspace (below federally-prescribed minimum flight altitudes). most courts consider this trespass. and the aircraft lands on P’s property.Got to be some sort of volition. not the full value of the property (as in conversion. Definition: "Trespass to chattels" is defined as any intentional interference with a person’s use or possession of a chattel. a pilot. (2) D remains on P’s land without the right to be there. D only has to pay damages.) 1. a. Just have to intend to do the act of walking . without permission. by causing undue noise. and P ran into it on his mower and died.
If the possessor gives the chattel back to the owner. if the conversion was innocent and the chattel wasn’t damaged. refuses to give P back her car for a day. The owner doesn’t have to accept the return of the goods. X. if the refusal lasts for a substantial time. because they were returned in useable condition. (3) the harm done to the property. Withholding good: D may commit conversion by refusing to return goods to their owner. as in trespass to chattels). and (4) the inconvenience caused to P. but gets to keep the goods. Buying it from a thief . D is liable for conversion. B. Dodd . Intent: Conversion is an intentional tort. and reasonably believes that the art dealer has good title. a parking garage. (Stealing it . how much harm was done to the chattel. and will be required to pay P the full value of the car (though D gets to keep the car). even if there is no way he could have known that they were stolen. the owner of a chattel must demand their property back from the possessor and be rejected. Factors include: (1) duration of D’s dominion over the property. consisting of letters from constituents and office documents. even though D did not end up with possession of the goods.Using it) 2. (Example: -Delivering it to the wrong person D. D has committed conversion.The court says that the documents themselves couldn’t have been converted. 6. then seriously (though not irreparably) damages it in a collision. or just trespass to chattels. delivers a package to the wrong person. You have to replace it . (Example: D buys an old painting from an art dealer.Bona fide purchaser: Most courts hold that a bona fide purchaser of stolen goods is a converter. The court then considers whether the documents could be considered intellectual property that could be compromised by being merely seen and then returned. notwithstanding his honest mistake about title. X absconds with the goods. How serious does the interference have to be? It must be serious enough that damages for the full market price of the chattel should be awarded. (Example: D. the actor’s good faith. The Restatement tries to spell out what makes a particular interference with chattels into a conversion: One way to smell a conversion is the “serious interference” test. D. Destruction: Conversion may occur if D destroys the goods. The court decides that the records that were copied. how long the interference lasted. a messenger service. except that in some jurisdictions. Forced sale: If P is successful with her tort suit.) 4. In most jurisdictions. are not intellectual property. or fundamentally alters them. Good Faith does not matter 3.Damaging it . Case: Pearson v. Definition: Conversion is an intentional interference with P’s possession or ownership of property that is so substantial that D should be required to pay the property’s full value. Return of Chattel In a few jurisdictions. Acquiring possession: D takes possession of the property from P.whole amount of damage i.Conversion A.) C. but all that is required is that D have intended to take possession of the property. . D keeps the painting in his house for 10 years. and how inconvenience was caused to the other person (B) Necessity of Demand. but the damages will be mitigated. That seems like a suspiciously circular definition. it doesn’t bar an action for conversion. Some other criteria for identifying a conversion include how long the actor had control of the chattel. the owner must take back the goods and won’t have an action for conversion. conversion happens as soon as someone unlawfully takes possession of the chattel. Example: D steals P’s car. a forced sale occurs: D is required to pay the full value of the goods (not just the amount of the use or damage. (2) D’s good or bad faith.) 5. Different ways to commit: There are different ways in which conversion may be committed: 1. Mistake as to ownership will generally not be a defense. the painting was stolen from P years before. Transfer to third person: D can also commit conversion by transferring a chattel to one who is not entitled to it. Selling it to somebody else E. D is liable for conversion. Distinguished from trespass to chattels: Courts consider several factors in determining whether D’s interference with P’s possessory rights is severe enough to be conversion. In fact.
and does it. only market price may be recovered unless the defendant’s conduct is outrageous. (Example: D offers to vaccinate all passengers on their ship. Of fishing pond without “No trespass” / Shoulder tap/Jostling B. Consent as a matter of law: But even if P is incapable of truly giving consent. "Go ahead. D will not be liable for that interference. but usually it’s done by market price. 1. hit me in the stomach – I’ll show you how strong I am. 1. her wishes are not to be overridden when she falls unconscious and death is imminent. One converter can even recover from another. you’re due the full value of the property converted. there will be consent regardless of P’s actual state of mind. Therefore. P cannot sue for battery.) 2. Minor • Consent of the parent is necessary for any medical procedure except in an emergency. Express consent: If P expressly consents to an intentional interference with his person or property. a hospital. *O’Brien v. How this is calculated can vary. CONSENT A. and (4) a reasonable person would consent in the circumstances. from custom. Usually. However. Custom – ex. D can perform emergency surgery without P’s actual consent – consent will be implied as a matter of law.Damages 1. D decides that P’s left ear needs an operation as well. unconscious. Relationship or Prior dealings between parties –man kisses his finance v. intoxicated.) B. and consents to an operation on her right ear. the plaintiff can show some right to the converted good. Williams] In MEDICAL context . consent exists regardless of P’s subjective state of mind. D will not be privileged if he goes substantially beyond the scope of that consent. Simpson (D) What May Be Converted Conversion originated from trover. a doctor. Lack of capacity: Consent will be invalidated if P is incapable of giving that consent. which applied to things that can be “lost and found”. in which case the plaintiff may be able to get damages for emotional harm. has reliably expressed her opposition to a particular medical procedure. Objective manifestation: It is the objective manifestations by P that count – if it reasonably seemed to one in D’s position that P consented. a. While P is under anesthetic. because she is a child. Implied consent: Existence of consent may also be implied from P’s conduct. Though the property may have special value to the owner. *Mohr v. consent will be implied "as a matter of law" if these factors exist: (1) P is unable to give consent. (2) immediate action is necessary to save P’s life or health. (C) DEFENSES TO Intentional Torts I. Example: P visits D. • Timing and proximity of parents is relevant D. (Example: P says to D. exceeds bounds of consent that’s still Battery) . 3. (3) there is no indication that P would not consent if able. P holds up her arm and receives the vaccination. (E) Who May Maintain the Action Anyone who has the chattel when it’s converted can sue for conversion. Consent may be inferred from: A. since the operation went beyond the scope of P’s consent." If D does so. etc.” Rodriguez v. Exceeding scope: Even if P does consent to an invasion of her interests. If something gets converted from yours to theirs. Cunard]) 2. while competent. (Example: P is brought unconscious to the emergency room of D. P’s consent does not block an action for battery for the left-ear operation. It’s kind of analogous to the rule in contracts that the owner ought to mitigate damages by buying a suitable replacement soon after the conversion. P’s consent prevents P from suing for battery. conversion has now been extended to apply to intangibles such as stock holdings. or from the circumstances. Since it reasonably appeared by her ACTIONS to D that P consented. stranger C. Hypothetical: Bush v. Pino.must be expressed (Informed Consent – must know of surgery risks – is now treated as negligence but when Dr. “If the patient.
not valid H.) E. because D’s act was not done in true self-defense. 1. i. If the attack took place in D’s home. (Example: P attacks D with his fists. in the surgery case. to run away or withdraw) if the threatened harm could be avoided this way. an emergency may justify extending the surgery beyond that consented to. a. E. The majority rule is that P’s consent is ineffective if the act consented to is a crime. in a way that does not threaten D with serious bodily harm. Roberts . D may not use his gun to shoot P. Contrary to the rules the defendant struck the PL. unless invited. 1. on the theory that consent to a crime – such as breach of peace – is ineffective. Only for protection: The defense of self-defense applies only where D uses the force needed to protect himself against harm. (without deceit). Emergency: However. unless it appears that there will be no way for D to defend tomorrow. III.) Most J require that ur defending against a serious felony. he will be liable for damage caused by the excess. The DF’s liability is one of an evidentiary finding as to whether PL’s rights had been violated. D hits P with a snowball. guilty of deceit. Degree of force: Only the degree of force necessary to prevent the threatened harm may be used. Retreat: Courts are split on whether and when D has a "duty to retreat" (i. even if the shot is intended only to injure P – D must submit to the attack rather than use deadly force. but (2) D may not use deadly force in lieu of retreating. which negates the consent given for the examination and treatment) II. but “one does not have to wait for the blow to fall before acting. Consent obtained through fraud/misrepresentation is not valid (De May v. privilege exists. "I will beat you up tomorrow. 1. Hackbart v.” C. D of others . but also If D mistakenly but reasonably believes that self-defense is necessary.. Retaliation: Thus D may not use any degree of force in retaliation for a tort already committed. Even if there is no other way for D to prevent the attack. (Example: P says to D.) 2. Apparent necessity: Self-defense may be used not only where there is a real threat of harm. Dr. B. Deadly force: Special rules limit the use of deadly force.. Privilege generally: A person is entitled to use reasonable force to prevent any threatened harmful or offensive bodily contact. force intended or likely to cause death or serious bodily injury. Self Defense A. Ten minutes later." D cannot beat P up today. in retaliation. (Example: P and D agree to fight with each other.Example 2: Voluntarily participating in professional sports. where it is inherently dangerous. In most states. unless it reasonably appears that there will not be a later chance to prevent the danger. courts are split. If D uses more force than necessary.) D. each may recover from the other. Restatement view: The Second Restatement holds that: (1) D may use non-deadly force rather than retreating. 1. (Example: P hits D with a snowball. Imminence: D may not use force to avoid harm which is not imminent. (Example: If P attacks D on the street with a knife. to prevent tomorrow’s attack. where P was not also a resident. Danger must be serious: D may not use deadly force unless he himself is in danger of death or serious bodily harm. statutory rape) G.No person has the right to intrude upon a person’s privacy or person. Under Duress . or b/c some real or pressing necessity exists. under the Restatement D may use his fists rather than running away. A threat must be imminent. then D could use the gun. does not allow one player to strike another player out of frustration and anger. but may not use a gun rather than running away if running away would avoid the danger.e. Consent to criminal acts: Where D’s act against P is a criminal act.e. except if attacked in his dwelling by one who does not reside in the dwelling. and any threatened confinement or imprisonment. Provocation: Verbal insults do not justify SD.e.) Minority & Restatement: Consent to criminal conduct is valid unless statute protecting a class of people regardless of their consent (i. D has committed battery on P. Cincinnati Bengals 1.
Mistake as to danger: If D’s mistake is about whether force is necessary. . If the gun shoots an actual burglar. Deadly traps – generally ok to protect in self-defense (trap to impede access to bedroom door at night is probably ok if significant threat but dynamite at the front door in daytime is not – still has to reasonable – even in a dwelling) Deadly traps – Not ok to protect property interests except: •Protection of dwelling against felonious entry (if trespasser is committing a ‘felony of violence’ or one punishable by death) •Some states have extended this privilege to other buildings. but P refuses. 1. Burglary: But a homeowner is generally allowed to use deadly force against a burglar. and (2) the owner reasonably believes that without deadly force. the spring gun may not be used either. D. Even if there is no way to make P leave except by shooting at him. he has no right to willfully and intentionally injure a trespasser in a manner that may result in loss of life or great bodily injury. Briney The value of human life and limb both to an individual and as a matter of public policy outweighs the potential damage to property. Older courts hold that the intervener "steps into the shoes" of the person aided. B. Ex.2d gives a "reasonable mistake" defense to the intervener. But.) 1. while a defendant may use reasonable force in defense of her property. death or serious bodily harm will occur. Deadly force: The owner may use deadly force only where: (1) non-deadly force will not suffice. and may not use deadly force to repel a non-deadly attack. •But D uses deadly traps at his risk: if spring gun injures child or other non-felonious entry. (Example: D reasonably believes that P is a burglar. In fact. the owner’s use of force will not be privileged. D would not have a "reasonable mistake" defense – since D could not have fired the gun at such a person directly.” So. Mechanical devices: An owner may use a mechanical device to protect her property only if she would be privileged to use a similar degree of force if she were present and acting herself. But if a neighbor.) C. both land and chattels. General rule: A person may use reasonable force to defend another person against attack. Mere trespassers do not trigger privilege to use deadly traps. note that the rules vary according to jurisdiction. Even non-deadly force by D will not be privileged. D of property A. provided that she reasonably believes that nothing short of this force will safely keep the burglar out. 1. (Example: D uses non-deadly force to stop a burglar whom he reasonably believes to be armed. General Rules for Spring Guns: Generally speaking. Privilege: But if the owner’s mistake is about whether the intruder has a right to be there. IV. “lacunae in the cases create uncertainties about the precise rules. D is protected by a reasonable mistake. a possessor may not set a deadly trap or spring gun likely to cause grave bodily harm in order to protect property – except to prevent entry into a dwelling place where there is a serious threat to the occupants or commission of a serious felony. Katko v. Reasonable mistake: The courts are split on the effect of a reasonable mistake. In fact.A. The same rules apply as in self-defense: the defender may only use reasonable force. D may not do so.) 2. unless it reasonably appears that violence or harm will occur immediately. without wanting to bother D. (Example: D sees P trespassing in P’s backyard. since P’s conduct does not threaten D with death or serious bodily harm. P is a friend who has entered D’s house to retrieve her purse. 1. Warning required first: The owner must first make a verbal demand that the intruder stop. or that the request to stop will be useless.) 2. postal carrier. The only exception is when the trespasser is committing a violent felony with the potential of endangering human life 1. the burglar is not armed. (Example: D uses a spring gun to protect his house while he is away. But Rest. and thus bears the risk of a mistake. D asks P to leave. General rule: A person may generally use reasonable force to defend her property. Thus. Reasonable mistake: An owner’s 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. no privilege will protect D. Mistake: The effect of a reasonable mistake by D varies: 1. or someone else not engaged in a crime happened to enter and was shot. then D will not be liable for using the spring gun. and state law would have allowed D to shoot the burglar if D was present. D can rely on the defense of property.
Reasonable force short of bodily harm. generally 10 or 15 minutes or less. the police must be called (the merchant may not purport to arrest the suspect himself). Saving the crew = public necessity. That is. he may moor at a dock owned by B. or without breach of the peace”. many courts give the merchant a privilege to temporarily detain the person for investigation. this is protected by the privilege of "private necessity. Lake Erie A. Then. B. Geary . and an event then occurs which gives him the right to repossess. probably do not have to pay." D has a privilege to harm the property interest of P where this is necessary in order to prevent great harm to third persons or to the defendant herself. Merchant: Where a merchant reasonably believes that a person is stealing his property. He has demanded return & been refused 5. Wrongful taking: The privilege exists only if the property was taken wrongfully from the owner.) 4. Private necessity: If a person prevents injury to himself or his property. Arlan's Department Store There exists a privilege for merchants or shopkeepers to detain those whom they reasonably believe to have unlawfully taken chattels for a reasonable investigation and thereby avoid liability for false imprisonment there are two important issues with respect to the privilege: 1) Whether there was a reasonable belief that an item had been unlawfully taken. no compensation has to be paid by the person doing the damage. because they are protected by the privilege of public necessity. 1. Recovery of Property/Chattels A. is caught in very rough seas. A request to stay. Fresh pursuit: The privilege exists only if the property owner is in "fresh pursuit" to recover his property. Generally: A property owner has the general right to use reasonable force to regain possession of chattels taken from her by someone else. Public necessity: If interference with the land or chattels of another is necessary to prevent a disaster to the community or to many people. (Example: Vincent v. it will be a complete defense to a tort claim where P has suffered no actual substantial harm (as in the above example).Rule: Property owners have the right to recover chattel if it can be done “without unnecessary violence to the person. Bonkowski v. P must . Hubbard . Satisfaction of both elements will provide a defense to a claim of false imprisonment VI." if there is no less-damaging way of preventing the harm. a week between learning that D has the property and attempting to regain it.) 2. while sailing.) It sucks/might not be fair – but it’s not tort. To save his life. (Example: O rents a TV to A. and 2) Whether the investigation undertaken in response to this belief was reasonable. 2. The firefighters. But if actual damage occurs.) A person’s life is worth more than property. “there is no privilege on the part of the wrongdoer to resist” Actor may use reasonable force to recapture chattels if: B. he generally will not be able to use force to regain it. General rule: Under the defense of "necessity. C. (Example: A learns that B has stolen a stereo and is in possession of it. because A’s original possession was not wrongful. and will not be liable for trespass. Furthermore. O probably may not use reasonable force to enter A’s home to repossess the set. (Example: Surocco v. and the town employing them. just long enough to determine whether the person has really shoplifted or not.•Note that criminal statutes amend these rules in many jurisdictions. A refuses to return the set on time.Firefighters demolish D’s house. Actual damage: Where the privilege of private necessity exists. 1. V. but some courts have implied that the spring gun might be justified only if a warning is posted. Reasonable force: The force used must be reasonable. the privilege is that of "public necessity. A may use reasonable force to reclaim the stereo if he acts immediately. because that is the best way to stop the fire from spreading much further. Limited time: The detention must be limited to a short time. and deadly force can never be used. say. Public Necessity A. the owner must act without unreasonable delay. Can’t kick them out BC emergency 1. in which a fire has just barely started. Hodgeden v. but not if he waits. If the owner parts willingly with possession." Here. 3. or to the person or property of a third person. Warnings – •Restatement does not require a notice. 3.
pay for the damage she has caused. c. Apprehension after crime: If a crime has already been committed. D against FI/Battery/Assault. D. objecting to what he thinks is a trespass. Arrest with warrant: Where a police officer executes an arrest with an arrest warrant that appears to be correctly issued. Arrest without warrant: a. Owner may not resist: The main purpose of the doctrine of private necessity is to prevent the person whose property might be injured from defeating the exercise of the privilege. A citizen may do the same. an officer may still make a warrantless arrest. b. Justification A. Putnam. Reasonable force: One making an arrest may not use more force than is reasonably necessary. b. NY City Transit Authority . A citizen may make an arrest only if a felony has in fact been committed (though the citizen is protected if she makes a reasonable mistake and arrests the wrong person).but amount of force allowed is less a. 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. Discipline 1. VII.A restraint or detention that is reasonable under the circumstances in time and manner and imposed for the purpose of preventing another from interfering with or damaging real or personal property is not unlawful. if there is no other way to prevent the crime. Example: P moors his ship at D’s dock. Officer may not shoot at Burglar to arrest him. 2. Common law rules: 1. even if there is no other way to make the arrest. AGE/SEX/MOTIVE/REASONABLENESS/PERM HARM Factors help determine if disp. Misdemeanor: At common law. provided that he reasonably believes that the felony has been committed. Parent/Child privilege can extend to those temporarily watching the child . Then owner is liable for battery. a.] Can’t shove ppl back out into the storm. Was reasonable 2. b. therefore. Babysitter/aunt. 2. etc. 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. causing the ship to be harmed and P to be injured. deadly force may not be used.) VIII. the police may use deadly force only if the suspect poses a significant threat of death or serious physical injury to others. 3.Bus case . Prevention: Where the arrest is made to prevent a felony which threatens human life or safety. Corporal punishment does not violate 8th amend cruel and unusual punishment or due process IX. she may be entitled to the general defense of "justification. Officer knows that Burglar is unarmed and unlikely to be violent." a catch-all term used where there are good reasons for exculpating D from what would otherwise be an intentional tort. (Example: On the facts of the above example. A would have to pay. Jury can decide reasonableness of D’s actions. [Ploof v. Arrest A. he will not be liable even if it turns out that there was no probable cause or the procedures used to get the warrant were not proper. But where the felony does not involve such danger. because P’s mooring was privileged by private necessity and D. acted wrongfully. Past felony: Once a felony has been committed. . if A’s boat slammed into B’s dock and damaged it. P may recover from D. if the offense is being committed or seems about to be committed in his presence. (Example: Officer spots Burglar escaping after his crime. even deadly force may be used. Generally: Even if D’s conduct does not fit within one of the narrower defenses. to avoid being shipwrecked by heavy seas. Example: Sindle v. and also reasonably believes that he has the right criminal. unmoors the ship.) 2.
where P can recover nominal damages even without actual injury. (This element can be thought of as "carelessness. imposed an unreasonable risk of harm. Wells left a golf club sitting in his yard –REASONABLE CONDUCT W LOW PROP OF HARM = NO NEGL 2. Fool me twice.Wells left a golf club sitting in his yard.driving across a bridge and lost control.In that 30 sec. Parsell . and thus we cannot require safety measures that would make roads generally unaffordable.") APPLY STANDARD OF DUTY UNDER BREACH – HAND FORMULA 3. 5. . NEGLIGENCE – DUTY I." courts use a balancing test: "Where an act is one which a reasonable [person] would recognize as involving a risk of harm to another. Prima facie case: The components of a negligence action are: Talk about each element in turn on EXAM. The elements flow into each other to tell a continuous story 1. DAMAGES . Law of neg makes us take risk reducing precautions to lower chance u’ll hurt someone else.Failure to conform: A failure by D to conform his conduct to this standard. Blyth v. Not judged by results: It is not enough for P to show that D’s conduct resulted in a terrible injury. Duty: A legal duty requiring D to conduct himself according to a certain standard. Balancing: In determining whether the risk of harm from D’s conduct was so great as to be "unreasonable. and fell to the ground.Actual damage: Actual damage suffered by P.The defendants are negligent only if they fail to do what a reasonable person would have done or do something a reasonable person would not have done. This is "proximate cause. without benefit of hindsight. Generally: P must show that D’s conduct imposed an unreasonable risk of harm on P (or on a class of persons of whom P is a member). THE REASONABLE PERSON . Pipher v. Wells . the risk is unreasonable and the act is negligent if the risk is of such magnitude as to outweigh what the law regards as the utility of the act or of the particular manner in which it is done." FORESEEABLE AND SCOPE OF RISK 4. (Compare this to most intentional torts. Davison v. BREACH . STANDARD OF CARE – RPP – UNFORESEEABLE P (CARDOZO) 2. Rule: In order for a defendant to be held liable for negligence. Lubitz v. How many risk reducing precautions? Must take RPP precautions acting under similar circumstances I. which results in injury to that other. such as trespass." II. s/he must have been able to foresee the injury to the plaintiff as a result of his/her failure to exercise due care Cohen v. so as to avoid unreasonable risk to others. Birmingham Waterworks Co. P must show that D’s conduct. Law says we want you to lower the chances of u hurting someone else.Fool me once. .UNREASONABLE NOT TO FORESEE 2ND RISK . COMPONENTS OF TORT OF NEGLIGENCE A. B.Negligence is situational: never had been a storm like this is "ordinary years". broke through a railing. viewed as of the time it occurred. and I'm liable for negligence . TALK about all 4 even though other elements may not be in dispute. Generally: The tort of "negligence" occurs when D’s conduct imposes an unreasonable risk upon another. CAUSATION – BUT FOR AND Proximate cause: A sufficiently close causal link between D’s act of negligence and the harm suffered by P. driver should have done something . shame on you. Petty –first time fainting – not liable for accident caused when fainted while driving 3. As a matter of public policy.) Cases: 1. 1. we want roads to be built and maintained. Not foreseeable. The negligent tortfeasor’s mental state is irrelevant.OBJECTIVE RPP TEST APPLIES TO REASONABLY UNFORSEEN RISK .he was negligent 4. B. Snobhomish County . Their car skidded. UNREASONABLE RISK A.NEGLIGENCE Whenever we act – we might hurt somebody else.
EVERYONE HAS TO DO AS GOOD AS THE RPP) 3. POLICY: the hazard it too great to permit cars in this condition on the highway 2 exceptions to RPP: 1. Roberts v. do as D did? D does not escape liability merely because she intended to behave carefully or thought she was behaving carefully.A child is held to the level of conduct of a reasonable person of that age and experience and intelligence (A. Mental characteristics: The ordinary reasonable person is not deemed to have the particular mental characteristics of D.WE EXPECT DRIVERS TO KNOW CAR BASICS. (Example: P is blind and is struck while crossing the street using a cane. More may be required of a child of superior intelligence. Mcadoo . the jury is still free to conclude that the industry custom is unreasonably dangerous and thus negligent . this will not be a defense. Menlove .ONSET IS SUDDEN N W OUT WARMING (Wisconsin specific) Policy: The general policy considerations for holding an insane person liable for his torts are: (1) when one of two innocent persons must suffer a loss it should be borne by the one who occasioned it.You know when you see the tire is worn through . 6yr old. 2. C. MOST J >5 incapable of negligence.doesn't matter if you didn’t know. not a RPP) Watch for Red Herring – blind ppl should still know not to set fire to kerosene.If D is more stupid. 1. subjective – diff SofCare for every kid. than an ordinary person. Pro-defendant.I) acting under similar circumstances not that of an adult. Would a "reasonable person of ordinary prudence. Insane is liable for negligence if there is a prior warning of the illness. an activity that is potentially dangerous and normally pursued by adults. Lindsay . However. corrective justice (2) to induce those interested in the estate of the insane person’ to restrain and control him. Mental Illness: MENTALL HANDICAPPED/ An insane person is held to RPP standard – even if that standard is unattainable for them. . THE STANDARD OF CARE REMAINS THE SAME Example: Delair v.If D operates a snowmobile. (Example: Robinson v.Establishes RULE Blind person held to standard of a reasonable prudent blind person. or more careless. Adult activity: But where a child engages in a potentially dangerous activity normally pursued only by adults. the standard for negligence is what a reasonable person with that physical disability would have done. Why? Created all kinds of problem w interpretation in crim context. Co. Intoxication: Intoxication is no defense – even if D is drunk. (Example: Vaughan v. If the issue is whether P was contributory negligent. D must match the standard of care of a reasonable adult) hunting is debatable depending on state b. she is held to the standard of conduct of a reasonable sober person. superior skill – held to higher standard (similarly someone who knows the neighborhood held to higher standard when driving around a sharp corner. . American Family Ins. 2. she will be held to the standard of care that a reasonable adult doing that activity would exercise. Custom: Courts generally allow evidence as to custom for the purpose of showing presence or absence of reasonable care. novice bike rider. Age 5-18 a. How many risk reducing precautions? Must take RPP precautions acting under similar circumstances. Evidence by D but not dispositive: Thus where D shows that everyone else in the industry does things the way D did them. this evidence is generally not conclusive. 5. snowy day – each case you drive like a RPP under the circumstances).E.OBEJECTIVE test. 4.its dangerous judge compares the worn out tire with a loaded gun . A RP driver would know ." in D’s position. State of Louisiana . stupid. NOVICE – beginning skier? Still held to RPP standard. Physical disability: Thus if D has a physical disability. Objective standard: The reasonableness of D’s conduct is viewed under an objective standard: EVERY PERSON HELD TO THE SAME STANDARD OF CARE. incentivize caretaking (3) to stop false claims of insanity to avoid liability. Same standard whether in pillow fight or high speed chase BC it’s all UNDER THE CIRCUMSTANCE (driving on a sunny day v. the issue will be whether a blind person would have crossed the street in that manner. Children: special standard of care . (Exception: Breunig v. 6." "The circumstances" generally include the physical characteristics of D himself. 2 yr olds don’t owe duty of care to the rest of the world c. Physical characteristics Physical and mental characteristics: The question is whether D behaved reasonably "under the circumstances. That’s his standard. 1.A. If drive bike like mentally defective 5yr old – then liable.
Unforeseeable P MALPRACTICE/Professionals Exception to RPP standard: added skill = held to higher standard A.(Example: D operates a tugboat without a radio. Even though D’s driving would not have represented carelessness if done by a reasonable person with ordinary knowledge of the road. Superior ability or knowledge: If D has a higher degree of knowledge. can’t use that as ur excuse In some cases you have a responsibility to anticipate an emergency.” This allows any jury to impose a different standard of care upon each individual.) B. conform.e. and crashes. etc. Inc. driving around a school yard and a kid darts out .. including doctors. P. D must merely behave as a reasonable person would if confronted with the same emergency." D must use that higher level. proof offered by P that others in D’s industry followed a certain precaution that D did not. just what the ordinary member of the profession does) Exercise Best Judgment . Proof by plaintiff: Conversely. Evidence of custom is the standard of care (∴ need Expert) (Example: Heath v. will be suggestive but not conclusive evidence that D was negligent.) CA. only that she will use the requisite minimum skill and competence. injuring her passenger. Carter. *The T. demand that doctors/etc. Unborn Children 9. (Trimarco v. Statutes 5.Discretionary matters . Average [reasonable] member of that profession providing the same service. Emergency SITUATION: d HAS NO OPPORTUNITY TO REFLECT. (Example: Hodges v. NIED 8. must act with the level of skill and learning commonly possessed by members of the profession in good standing. A thief jumps in the cab. engineers. improperly introduced a subjective standard: “an ordinary prudent pilot having the same training and experience as Fred Heath. . (Example: D. Good results not guaranteed: The professional will not normally be held to guarantee that a successful result will occur. not as a reasonable person would with plenty of time to think.The trial Ct. Hooper]) 1. Pure Economic Loss 7. lawyers. not whether a cab driver in ordinary circumstances would have behaved that way Cordas v. Emergencies: If D is confronted with an emergency. D. Premises Liability – Possessor of Land to protect entrants from dangerous conditions 4. knows that a stretch of highway is exceptionally curvy and thus dangerous. I. and is forced to act with little time for reflection. D was responsible for using her special knowledge and is negligent for not doing so. Duty to Act (no duty to rescue) 6. and tells him to drive fast. Professionals 3. D drives at a rate of speed that one who did not know the terrain well would think was reasonable. REASONABLE UNDER THE CIRCUMSTANCES When acting under the belief that his life is in danger and by abandoning the taxi he will save his life is not negligence. because she is a local resident. skill or experience than the "reasonable person. accountants. points a gun at D’s head.J. in a panic. the fact that most tugboats in the industry do not yet have radios does not prevent the jury from holding that D’s lack of a radio was negligent.not liable for a mere error of judgment . The issue is whether a cab driver confronted with a gun-pointing thief would or might have behaved as D did. can also bring in P’s customs D.D mailed the process to the commissioner in following a custom which had prevailed in this State for over two decades . Malpractice generally: Professionals. Klein P introduced evidence that shows that it was a customary practice among landlords to install shatterproof shower doors.Professionals are not expected to know everything. 1. In malpractice – not a fictional RPP – compared to real world colleague .) Still have to act like a reasonable person would under an emergency If u brought on the emergency.duty to drive slow Sudden incapacity – epileptic driver has to take their meds EXCEPTIONS TO THE RPP Standard of Care 1. mistakenly puts the car in reverse and injures P. Children – see above 2. Peerless Transportation Co. Swift Winds. (Example: D is a cab driver.
a. D Physician failed to inform patient adequately of a MATERIAL risk before securing consent to the proposed treatment 2. and many if not most courts would today apply a national standard.New rule: Full disclosure of all material risks incident to treatment must be made. Show damages did result 5. And emergency situation where patient needed prompt treatment was in no position to consent . D must be shown to have lacked the skill level of the minimally qualified member in good standing. not merely to the minimum level of the internist or general practitioner. To apply his knowledge n skill w ordinary and reasonable care 2. Failure to get the patient’s adequate consent is deemed a form of malpractice and thus a form of negligence. In "modern" courts. D must be judged by reference to the belief of the school he follows. Crts. (Example: A lawyer who has just passed the bar does not get the benefit of a lower standard – he must perform at the level of minimally competent lawyers generally. Brown . Novice: One who is just beginning the practice of his special profession is held to the same level of competence as a member of the profession generally.THE CUSTOM IS THE STANDARD OF CARE 6. A risk is material if it would be likely to affect a patient’s decision. Community standards: Traditionally. Patient knew of the risks OR 2.) MEDICAL MALPRACTICE TEST . she will be held to the minimum standard of that specialty.) 3.All dr.D. Must show what the standard med practice is 4. MacNamara court abandons the locality rule) a.) (Scott v. (Example: An M. doctors and other professionals have been bound by the professional standards prevailing in the community in which they practice. That another dr. (Example: An osteopath is judged by the standards of osteopathy.must prove: 1.She signed a routine consent to surgery form prior to the hysterectomy . failure to get informed consent transforms the treatment into battery. Informed consent – BOND SAYS REVIEW: In the case of a physician. Kent could say he would do diff is an x-ray TEST: 1. would have done it different is no sufficient to establish malpractice MALPRACTICE IS EXCEPTION . part of the professional duty is to adequately disclose the risks of proposed treatment to the patient in advance. Specialists: If D holds herself out as a specialist in a certain niche in her profession. not the standards of medicine at large. Dr. Departure from the reasonable standard of care must be shown via expert testimony 6. Minimally qualified member: It is not enough for P to prove that D performed with less skill than the average member of the profession.Use Due Care . not novices. usually older ones. The rule requiring adequate disclosure is called the rule of "informed consent. Differing schools: If there are conflicting schools of thought within a profession. must prove 1." The 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. (Example: Traditionally. the "country doctor" need not perform with the skill commonly found in cities. who holds herself out as an ophthalmologist must perform to the level of the minimally competent ophthalmologist.Mechanical matters. Now – national Standard b. Must have done something or neglected to do something negligent 3. The adverse consequences that were not made known did in fact occur and he was injured as a result of submitting to the treatment The Defense against test. (In some cases. If patent had been informed of the risks he would not have consented to the treatment 3. Change in rule: But this rule is on its way out. not by a national standard. Ex: missed a statute of lim = liability. P may therefore use expert testimony from an expert who practices outside of D’s community. Full disclosure would be detrimental to patient's best interests OR 3.) 5. Boyce v. More likely to find fault here 2. Morrison v. Bradford .) 4.
) Discovered trespasser: come w out permission but owner knows about or should expect them to be there (discovered and anticipated trespassers) 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. even if it poses an unreasonable danger to persons outside the property. these rules do not apply to conduct by the landowner that has effects outside of his property. St. But in an urban or suburban context. Effect outside: There are special rules lowering a landowner’s standard of care. Traditionally. such as whistles.) Taylor v. (Example: O allows a tree to grow in such a way that it may hit a tall truck passing on the roadway. ballpark – RULE: Landowners who use their land in an artificial way must take reasonable precautions to protect the public traveling II. This is the "constant trespass on a limited area" exception.this case is the exception to the rule of no duty to protect one outside the premises of natural conditions – RULE: The standard of care a landowner owes in relation to roadside trees is reasonable care to prevent an unreasonable risk of harm 2. (Example: P trespasses on D railroad’s track. the owner is then under a duty to exercise reasonable care for the trespasser’s safety.]) Rule: Railroad companies are under a constant and strict duty of care to individuals at railway crossings [bc can assume NOTICE at a public crossing]. she must use reasonable care to make the premises safe or at least warn of dangers. The doctor must tell you about everything that is material to your decision to give consent. An adult has the right to control his own body. Inc. the general "reasonable care" standard usually applies to such effects. TRESPASSERS – Least amount of Duty 2 types: #1. he may be liable for malpractice based on breach of informed consent Three principles: 1. Undiscovered trespasser: zero duty of care – cannot win a premises liability case A. P cannot recover because D owed him no duty before discovering his presence. But in an urban or other thickly-settled area. when traversing that crossing. but are not bound to any act or service in anticipation of trespassers at other points along the track. Even if the reason that P caught his foot was that D negligently maintained the roadbed.(Example: If trespassers have worn a path across a railroad. and he is run over by a train. Paul Ry. A physician must tell the patient if he has personal interests that may affect his professional judgment. Discovered trespassers: Once the owner has knowledge that a particular person is trespassing.Example 2: Moore v. O may not be held liable to the driver of the truck. Therefore. Wilmington Park. courts are less likely to apply this traditional rule. O might be liable. Co. to warn of dangers on it. to avoid carrying on dangerous activities on it. [Sheehan v. EXAMPLE: Salevan v. 3. Natural hazards: However.) 4 part test to trigger duty. However. if a hazardous condition exists naturally on the land. OWNERS AND OCCUPIERS OF LAND DUTY I. Regents of the U of C . Must meet all 4 . the owner has a general duty to prevent an unreasonable risk of harm to persons outside the premises. 1.(Example: A railroad’s engineer must use reasonable care in stopping the train once he sees P trespassing on the tracks. OUTSIDE THE PREMISES A. the property owner generally has no duty to remove it or guard against it. Trespasser ASSUMES ALL RISK #2 2. Artificial hazards: Where the hazardous condition is artificially created. Olsen .Dr/D used cells from his spleen for profit. the railroad must use reasonable care. 2. the landowner owes no duty to a trespasser to make her land safe. Consent is only effective if it is informed consent. If he fails to do so.NATURAL CONDITIONS . His foot gets caught. General rule: As a general rule. or to protect the trespasser in any other way.
MANMADE. If O should realize that a warning will not remove the danger. B. even if a reasonably careful owner would do so. The owner does not owe a licensee any duty to inspect for unknown dangers. On the other hand. if P cannot reasonably be expected to spot the danger himself." not an "invitee. *Social guests: The main class of persons who qualify as licensees are "social guests. then the condition must actually be remedied. 2.Duty to discover and warn about it or FIX it B.highest level of duty . but not always. OR (2) Land is held open to the public at large (church. he becomes a licensee when he goes into the private bathroom. LICENSEES – (social guest . 2. she must warn P. Knew about or should have known about. Thomas Sr.Plaintiff visited the home of discuss the business of the Masonic Lodge. The owner must use reasonable care to take affirmative action to remedy a dangerous condition. Thomas Jr.") Barmore v.) ********Duty to protect against KNOWN TRAPS on land IV. she must warn the licensee of that danger. any place of business) .’s 47 year old son. Even though P was an invitee when he first came into the store. 3. Defendants’ only duty was to warn him of hidden dangers unknown to Plaintiff of which Defendants had knowledge.. Artificial in Nature: built by man. Warning: The giving of a warning will often. DEATH TRAPS on land III. During the visit. a licensee. INVITEES . P is a "licensee." (Example: Even if P is invited to O’s house for dinner.1. Duty to licensees: Duty to warn if its (1)CONCEALED and (2)KNOWN in advance BY POSESSOR (but unlike w trespasser – dn matter if its nat/artificial or slightly/very dangerous). The owner has a duty to inspect her premises for hidden dangers (CONCEALED). . Weathers . Condition must be concealed from trespasser – hidden/secret. airport. Elmore . Highly dangerous: would kill or badly injure someone. suffices. reasonable inspection to find hidden dangers. (Example: Rear steps leading from O’s house to her back yard contain a rotten wood plank. but who does not have a business purpose (don’t confer an economic benefit on possessor) for being there. O then allows P to use a private bathroom in the back of the store not held open to the public. Definition of licensee: A licensee is a person who has the owner’s consent to be on the property. (Example: P visits O’s store to buy cigarettes.people you Like) A. if the owner knows of a dangerous condition. museum) Case ex: Campbell v. or anything else entitling him to be on the land apart from the owner’s consent. he is an invitee. *People who come to the door – salesman/girlscout/guy who reads gas meter. advanced towards Plaintiff with a steak knife. that person will change from an invitee to a licensee. Duty to invitee: 2 part test 1. But O need not inspect the steps to make sure they are safe. The RPP is careful but not obsessive. Van Natta])RULE: A land possessor is only subject to the liability of another as an invitee for harm sustained while he is on the land within the scope of his invitation. Definition of "invitee": (1) Persons who are invited (have permission) by O onto the land to conduct business with O (ex: grocery store. doing business with that store. Prior knowledge by land owner ********Duty to protect against KNOWN. Doesn’t mean they have to discover everything – just what RPP would uncover. If O knows of the rotten condition. No duty for natural conditions.entered the business of D without purchasing any items. or at some other time. Do duty for open and obvious – big trench on construction site 4. 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. used the restroom injured when he stepped into an open trap door RULE: If an individual enters a store with the intention of then. This is true even as to dangers that existed before O moved onto the premises. No duty if moderately dangerous. [Whelan v. A. You have an implied consent that she can walk up to the front door – but she’s not conferring an economic benefit on u.
a child trespasser. No duty of inspection: The child trespass rules do not generally impose any duty of inspection upon O. licensee and invitee. or put up a sign . Rowland v. Rejection generally: A minority of courts rejected the categories of trespasser. which facilitates railroading. hence the public good demands its use.Impose some burden on a 5yr old but not a 2yr old) (4) the benefit to the owner of maintaining the condition in its dangerous form is slight weighed against the risk to the children.WHEN D KNOWS OR SHOULD KNOW KIDS WILL BE PLAYING THERE. Attractive Nuisance Doctrine: how likely is it that children will trespass? – the higher the likelihood the safer u should make ur property The owner owes a duty of reasonable care to a trespassing child for an ARTIFICIAL CONDITION if: (1) the owner knows that the area is one where children are likely to trespass. the general benefits resulting from its use outweigh the occasional injuries inflicted by it. O is probably liable to P on these facts.R. P. a. b. These courts now apply a general single "reasonable Prudent person" under the circumstances standard of liability. ****ALL REASONABLEY KNOWABLE TRAPS ON THE LAND V. Chicago B. Natural conditions: The court is less likely to find liability where the condition is a natural one than where it is artificial. Hand Formula It’s about proportion and public good. purpose for which it is used 3. It would not cost very much for O to install fencing.fence in your pool (But don’t have to fence in pond) Example: O knows that children often swim in a swimming pool on O’s land. Christian *RULE: California instead applies ordinary principles of negligence in these cases. *Bc still using the “under the circumstances standard. panics after suddenly reaching the deep part. Control over third persons: Reasonable care by O may require that she exercise control over third persons on her premises. (if live in middle of nowhere might be 0) (2) the owner has reason to know that the condition poses an unreasonable risk of serious injury or death to trespassing children. walks on the bottom of the pool. and (5) the owner fails to use reasonable care to eliminate the danger . Co.” A RPP is going to protect customers MORE than you would a trespasser ∴ status of entrant still comes into play thru backdoor. (if child perceives the risk it DN apply . and drowns. Regard must be had for 1. Trespassing Children: O must exercise reasonable care to prevent trespassing kids from getting hurt. Krayenbuhl . A. One part of the pool is unexpectedly deep. General Duty of Care = covered in beginning of neg. carpet is slippery” instead of putting a pad under carpet.A child playing on a railroad turntable . v. VI. The condition Is one that children would be attracted to: kiddie Magnet – swing set/pool (3) the injured child either does not discover the condition or does not realize the danger. character and location of the premises 2. probability of injury 4. & Q. REJECTION OF CATEGORIES – A. A turntable is a dangerous contrivance.3.Cost/Benefit analysis. due to his youth. D HAS A DUTY OF CARE TO PROTECT AGAINST HARM . precautions necessary to prevent the injury In all these cases – there are 2 ways the owner can satisfy the duty Fix Condition Warn (barbri guy says a warning fully satisfies the duty) “Be careful.
Co Brief Fact Summary. unless the driver was grossly negligent or reckless. (2) Conditions dangerous to persons outside the premises?? IMPLIED WARRANTY OF HABITABILITY: Pagelsdorf v. of America Rule: Under Wisconsin law. Lessors: In general. Negligent repairs: The landlord may incur liability even without a contractual repair obligation if she begins to make repairs. Plaintiff did not get out of his vehicle to obtain a better view as required by the opinion in Baltimore & Ohio R. a landlord owes to his tenant or anyone on the premises with the tenant’s consent a duty to exercise ordinary care. 208 • Black n white (BRIGHT LINE) v flexible standard. flexible standard. This is clearly true where the landlord worsens the danger by performing the repair negligently. However. then abandons it. Lessor contracts to repair: If the lessor contracts. Lessee: A tenant is treated as if she were the owner – all the rules of owner liability above apply to her. Open to public: If the lessor has reason to believe that the lessee will hold the premises open to the public. Goodman. the only recourse for a landlord’s failure to comply with this warranty is a right to withhold rent until repairs are made. Generally. 1500 Mass. 5. the lessor has an affirmative duty to inspect the premises to find and repair dangers before the lease starts. General negligence standard: Courts that impose a general negligence standard on occupiers of land often impose a similar general requirement of due care upon lessors. there are a number of exceptions to this general rule: 1. B.R. Benefits of rules v. and which the lessee has no reason to know about. P was assaulted and robbed in a common hallway of Defendant’s apartment.) 2. VIOLATION OF STATUTE – Special Duty – Special Standard of Care AUTOMOBILE GUEST STATUTES A. unknown to lessee: The lessor will be liable to the lessee (and to the lessee’s invitees and licensees) for any dangers existing at the start of the lease. LIABILITY OF LESSORS AND LESSEES A. as part of the lease. 3. Co. most courts hold that the landlord’s breach of this covenant to repair gives a tort claim to anyone injured. P must show that D failed to use reasonable care in performing – it is not enough to show that D breached the contract. Wabash. Co. RULES OF LAW pg. to keep the premises in good repair. Plaintiff was killed while attempting to cross Wabash Ry. Courts are split about what happens where the landlord starts the repair. v. and either performs them unreasonably. 6. a lessor is not liable in tort once he transfers possession to the lessee. Synopsis of Rule of Law. (This usually does not impose on the lessor a duty to inspect the premises at the start of the lease. BC neg cases are so fact specific – bright line rules are impractical – create consistency and be more efficient – but makes the application of special circumstances difficult Pokora v. which the lessor knows or should know about.VI. or fails to finish them. 4. without worsening the danger.’s (Defendant’s) four railroad tracks. Common areas: Kline v. An implied warranty of habitability requires a lessor to deliver the premises to the lessee in a habitable condition. Ave Apartment Corp. These generally provide that an owner-driver is not liable for any injuries received by his non-paying passenger. Defendant was on notice that assaults were occurring in the hallway RULE: Landlords have a duty to take steps to protect tenants from foreseeable criminal acts committed by third parties in common areas of landlord’s property. Wabash Ry. To get out of a vehicle is uncommon precaution. Known to lessor. Pokorah v. Generally: A minority of states still have "automobile guest statutes" on their books. The actions of a plaintiff depend on the situation and the circumstances. However. and it is up to the jury to decide whether a particular course of action was reasonable VIOLATION OF STATUTE . Safeco Ins. as everyday experience informs us.
is injured when the elevator falls due to lack of the device. S.Statute is spelling out standard in particular factual conduct. Same Type of harm statute is designed to protect Example: D drives at 65 m. D. because the statute was obviously intended to protect only against spread of disease. Protection against particular harm: Second. The D owned me a duty to stop at a red light bc statute says so. However. and S. in a 55 m. violates the statute by herding P’s sheep together with other animals. zone. Some statutes merely codify common law duties. [Gorris v.N. Because the 55 m. Scott. jury looks at D’s behavior whether reasonable/not – but can go either way. (Example: A statute requires all factory elevators to be provided with a certain safety device. he strikes and injures P.) Stachneiwicz v. it finds that the plaintiffs failed to state a cause of action. and he can’t stop.h.N." and thus conclusively establishes that D was negligent. the sheep are washed overboard during a storm. While so driving. P cannot use the negligence per se doctrine.h. the statute must have been intended to protect against the particular kind of harm that P seeks to recover for. a business visitor. McMasters . ]) Example 2: Ney v. In essence Borrowing a statute from crim law and asking judge to use it as tort neg standard A. the fact that D has violated the statute without excuse conclusively establishes that D was negligent – D will not be permitted to argue that it was in fact safe to drive at 65 m.p. 2. Because P was within the class of persons the regulation sought to protect and because the injuries he sustained were of the type of harm the regulation sought to avoid. so he runs over P.p. (Example: A statute requires that when animals are transported. a member of the class of the Same Class of persons the crim statute was designed to protect b.h.p. Yellow Cab Co. . each breed must be kept in a separate pen.don’t need to look to RPP. a pedestrian. STILL HAVE TO PROVE CAUSATION/damages. If D can show that he had no way . The court decides that the statute does not establish a standard of conduct. "Negligence per se " doctrine: Most courts apply the "negligence per se" doctrine: when a safety statute has a sufficiently close application to the facts of the case at hand. then an intervening criminal act does not break the chain of causation. Mar-Cam Corp P was injured during a barroom brawl The regulation was drafted to prevent injuries and abuses associated with the types of disturbances connected with bars and intoxication. Thus. 1.(Example: A statute requires all brakes to be maintained in good working order.If a person neglects to perform a duty imposed by either statute or common law and that law is designed for the protection of others. D’s brakes fail. Problem is that the statute says pay $200 (not that ur negligent).p. Statute must apply to facts: The negligence per se doctrine will apply only where P shows that the statute was intended to guard against the very kind of injury in question. limit is a safety measure designed to protect against accidents. IF you can apply a statute . Jury will still consider the FACTS . P. P cannot use the negligence per se doctrine. the jury has a great deal of discretion. not washing overboard. there is no common law duty to report child abuse EXCEPTIONS: (1) D was reasonably unaware of the particular occasion for compliance. The D owed me a duty to drive like a RPP v. then the evidence of the act or omission is negligence per se B. . What is purpose of statute – safety or anti-theft? Example 3: Perry v. Violation of statute = shortcut if statute is applicable. an unexcused violation of that statute by D is "negligence per se. Link between purpose of statute an prox cause = FORSEEABILITY If the harm resulting from negligence is foreseeable. Therefore when use a crim/statutory law as the standard of care makes it more black/white. B. The legislative history shows that the purpose was only to protect injuries to employees. Its negligence per se bc there is no evaluatory function (circumstances don’t matter – no RPP under the circumstances). a ship operator. NEG per se cancels out duty/breach. So using statute in a way that it wasn’t meant to be used. Class of persons protected: This means that P must be a member of the class of persons whom the statute was designed to protect. Because there are no pens. P has to show he is a member of the class of the a. Osborne v.was the light red or green. because he was not a member of the class of persons whom the statute was designed to protect.h. Ordinary negligence case. the violation of the regulation can be used as evidence of negligence per se.
DeBuse. ]) (2) D made a reasonable and diligent attempt to comply. (BUT . D walks on by. Custodian has control . When kids violate statutes it is MERELY EVIDENCE of negligence not neg per se DUTY GENERALLY. (Example: Cars driven by P and D collide. Exceptions: • PRE-EXISTING Special Relationships: position of superiority/inferiority where 1 person has control. (Example: D – even Michael Phelps. The most important of these situations are: (1) D generally has no duty to take affirmative action to help P. FAILURE TO ACT A. but instead.) B.) 5. the duty to behave with the care that would be shown by a reasonable person." Normally. employers must give assistance to employees. Langsam -Uni has NO DUTY to regulate the private lives of their students. D can probably use the negligence per se doctrine to establish that P was contributorily negligent. 1. [Freund v. Blame Department store for taking too long in turning escalator off . Duty to protect or give aid: This means that if D sees that P is in danger. D may get the benefit of contributory negligence per se where P violates a statute. If P was violating the speed limit.prisoner has no ability to help themselves. (Example: swerve to miss a kid and cross – double yellow into other lane and hit a car. for standard of care and instead must use RPP standard). his violation of the statute would be excused.heart attack while driving and runs a red light. and fails to render assistance (even though D could do so easily and safely). and the negligence per se doctrine will not apply.which P's injuries were aggravated . (4) compliance would have involved a greater risk of harm. ○ Land owner/occupier/invitee . D is not liable for refusing to assist. and (3) D has no duty to avoid causing pure economic loss to P in the absence of more tangible types of harm such as physical injury. It’s just mere evidence Merely evidence: in some J violation of a stat is merely evidence of neg and in others its neg per se.D has DUTY not to further aggravate injuries) o Employers and universities: Similarly. But there are several situations in which courts hold that the defendant owes plaintiff less than this regular duty. you don’t have to worry about this duty – it is the same in all instances. Ayres Little boy gets caught in escalator. Compliance not dispositive: The fact that D has fully complied with all applicable safety statutes does not by itself establish that he was not negligent – the finder of fact is always free to conclude that a reasonable person would take precautions beyond those required by statute. (2) D generally has no duty to avoid causing unintended mental suffering to P. Contributory negligence per se : If the jurisdiction recognizes contributory negligence.) ○ Legal Custodian. a person owes everyone else with whom he comes in contact a general "duty of care.special rules that have to do w duty. and the jurisdiction recognizes contributory negligence. No general duty to act: A person generally cannot be liable in tort solely on the grounds that she has failed to act. and universities must give assistance to students. (3) D was confronted with an emergency not of his own making.to know that his brakes were not in working order. sees P drowning in a pond. D could easily pull P to safety without risk to D. Again must revert to RPP standard. (Example: P violated statute requiring Pedestrians to walk on the sidewalk – but if she did she would most likely fall Zeni v. (might not be any negligence if sudden onset – but a RPP might stop driving when got chest pains). . Anderson) (5) Compliance was impossible under the circumstances 4. Look for formal relationship recognized by the legal system ○ Common Carrier/passenger (bus driver has to rescue passenger) ○ Innkeeper/Guest o Business Owner/patron: Example: L. You don’t have to drive a car/open a restaurant/go skiing – but if you do – do it carefully. Concept: Generally. passing by. Prison Guard/prisoner.Hegel v. D is not liable to P. ∴ can’t use statute as subs.S.
is stabbed. (Example: A car driven by D strikes P. or on a camping trip.she breached that duty.This never Requires D to put their own life in jeopardy. uni of CA Psychologist councils guy who tells him he will kill . a. D has the duty of assistance. D must proceed with reasonable care. a storekeeper. Defendant and victim as co-venturers: Where the victim and the defendant are engaged in a common pursuit. D can be negligent for failing to exercise that control.) 3. comes into the store wielding a knife. *** Good Samaritan Law: some states reverse CL rule – a gratuitous rescuer gets some immunity from act a.you have to allow) ○ Husband/wife and parents/kids ○ Doctor/Patient relationship: Dr has a DUTY to exercise reasonable care to protect the foreseeable victim of that danger .) b. some courts have imposed on the defendant a duty of warning and assistance. an injured pedestrian. But many modern courts would make D liable even in this situation. Special relationship: A duty to control a third person may arise either because of a special relationship between D and P. Under the traditional view. so that they may be said to be co-venturers. an obviously deranged man. even though D was a tortfeasor vis-a-vis X. Traditional rule: Where D tortuously causes physical injury or property damage to X. or to an instrument under D’s control. is required to dock elsewhere and suffers extra labor and docking costs. fails to take action when X. (Example: D. ***** Once a duty is established The duty in all these is RPP under the circumstances***** . their joint pursuit might be enough to give rise to a duty on each to aid the other. the traditional rule is that P may not recover anything. Empirical evidence to fit In w foreseeability analysis ○ Particularized Foreseeability: wife might have special reason to know of abuse • Proximate Cause: failure to report causes continuation of abuse. P.○ Bar owners . but no physical injury. if two friends went on a jog together.Tarasoff v. owner of a different ship. (Example: A ship owned by D damages a dock owned by X. If a court does decide to relax the no-liability rule. a mere promise by D to help P (without actual commencement of assistance) was not enough to make D liable for not following through. if P has a reliance interest. Preventing assistance by others: D is especially likely to be found liable if he begins to render assistance. Even though D has driven completely non-negligently. and this has the effect of dissuading others from helping P. This is true today even if D acted without fault. Modern approach: But most modern courts probably no longer impose a blanket rule of no liability for pure economic loss. D may not then abandon the attempt to help P. A gratuitous rescuer will be liable for botching the rescue. some courts now hold that any business open to the public must protect its patrons from wrongdoing by third parties.and then he kills the woman o Jail/jailor 2. Duty to control others: If D has a duty to control third persons. and other passers-by decline to help because they think the problem is taken care of. If you don’t want to rescue – you don’t have to – but if you choose to rescue you have to do it as a RPP. The harm is DIRECT and PREDICTABLE PURE ECONOMIC LOSS – limited duty A. For instance.detains him . You do the Heimlich – but are a little tipsy and break the P’s ribs – liable. and the accident is due to P’s carelessness in crossing the street. 5. a patron. a pedestrian. P.must allow good Samaritan to use public phone on premises (it’s so minimal a burden . it is most likely to award recovery where: (1) the injury . Rationale: The rationale for this restrictive rule is the fear of open-ended liability. For instance. or a special relationship between D and a third person. B. P may not recover these expenses from D. Defendant CAUSED the P’s peril: If the danger or injury to P is due to D’s own conduct. Throw a rope – dial 911 4. but only pure economic loss to P. (Example: If D stops by the roadside to help P. D today has a common-law duty to stop and give reasonable assistance to P. If she does not report .releases him . Most courts would find D liable for failing to take action. Mere promise: Traditionally. Assumption of duty: Once D voluntarily begins to render assistance to P (even if D was under no legal obligation to do so).) Example2: JS and MS v RTH a wife who suspects or should suspect her husband of actual or prospective sexual abuse of their neighbor’s children has any duty of care to prevents such abuse • Wife is in a unique position to look for the signs.
P may recover for purely emotional harm with no physical symptoms. No one is hurt. causing toxic chemicals to be released into the environment and causing the United States Coast Guard (Coast Guard) to close a Mississippi River outlet Rule of Law.. Example: State of Louisiana ex rel. Accompanied by physical impact: If D causes an actual physical impact to P’s person. unless physical damage to property occurs EXCEPTION for COMMERCIAL FISHERMAN: oysterman can recovery. Few if any courts will allow P to recover for her emotional distress. that two family members suffered severe emotional disturbance as a result of the accident * Several limitations are applicable to this new holding.to P was relatively foreseeable. ($$ bc can’t walk daughter down the isle – etc. P has no physical symptoms. LaCroix the common law “impact” requirement should no longer apply in Michigan D. STAND ALONE DISTRESS: B. and (3) causes P to suffer emotional distress that has physical consequences (Heart Attack/miscarriage/rash/tremor) nearly all courts allow recovery.g. P may recover. Intentional torts: Remember that the general rule applies only to negligent conduct by D – if D’s conduct is intentional or willful. nearly all courts deny recovery. NEAR MISS: Physical injury without impact: Where D’s negligent act (1) physically endangers P. courts limit P’s right to recover for mental suffering. Mental suffering without physical impact: But where there has been no physical impact or direct physical injury to P. proximately caused by defendant’s conduct. Their property is the fish BP Spill: Could recover if you boat was damaged. No physical symptoms: Where there is not only no impact. (Example: D narrowly misses running over P. M/V Testbank . EXCEPTIONS: Some courts recognize an exception to this rule in special circumstances (e. (2) relatively few plaintiffs would be permitted to sue if liability were found for pure economic loss.) a. (2) does not result in physical impact on P. This causes P to have a greatly increased risk of throat cancer. (Example: D releases toxic chemicals into the water.claimed. in addition to property damage. 3 cases you can recover: 1. Special Relationship (Dr. but not for economic loss . wrecked his car shearing off a utility pole and creating an electrical explosion at Daleys’ house ./Patient) and highly foreseeable result of carelessness (Dr. Duty LIMITED DUTY: IV. but is distraught for weeks. mixes up results and tell u you have HIV ) can collect. P may generally not recover for the purely emotional harm of being at risk.. negligence by telegraph companies in wording messages. (Example: D narrowly avoids running over P. • First. Guste v. Most courts will not allow P to recover for distress at being extra vulnerable to cancer..) b. Such mental-suffering damages are called "parasitic" – they attach to the physical injury. Clinical depression may reach the standard . The "at risk" plaintiff: The general rule means that if P. Emotional Distress A. P is so frightened that she suffers a miscarriage. by use of the tort of intentional infliction of emotional distress. and (3) D’s conduct is relatively blameworthy. Daley v. The majority rule does not allow recovery for economic loss.. suffers an increased likelihood of a particular disease. D is liable not only for the physical consequences of that act but also for all of the emotional or mental suffering which flows naturally from it. but no physical symptoms of the emotional distress at all. POLICY: worried about extended liability /millions of dollars/ Courts effort to limit liability. plaintiff has the burden of proof that the physical harm complained of is a natural consequence of the alleged emotional disturbance. and by funeral homes in handling corpses).if you lost business/jet ski Court relies on rule from ROBBINS Case: limit liability to those who you are in a contractual relationship w. defendant’s standard of conduct is measured by reactions to be expected by RPP • Second. by virtue of his exposure to a certain substance. ) This is not what we’re talking about right now.Two ships collided.) More and more liberal trend. 2.
g.. But almost no courts have allowed the child to make such a wrongful life recovery.The Plaintiff was born with multiple birth defects. LIMITED DUTY: IV. Here. Child not born alive: Courts are split about whether suit can be brought on behalf of a child who was not born alive. a court will allow recovery only if it finds that a fetus never born alive is a "person" for purposes of the wrongful death statute. courts are split as to whether the child may recover. causing her twins to be delivered stillborn 3. Most courts will allow P to recover for her emotional distress at seeing S injured. When P is conceived. * Policy considerations have led this court to decline to recognize any cause of action for an infant’s wrongful life. Suppose. Usually. The drug damages the mother’s reproductive system. the result of his mother’s German Measles that the dr.) 2.duty towards the unborn A. (Exampl e: D narrowly avoids running over P. Endresz was seven months pregnant when she was injured in an automobile accident with Friedberg. [Enright v. this Court does find that recovery of the cost of extraordinary medical expenses is . P’s mother can clearly recover from D for her own injuries. However. Modern view: Most courts have rejected the traditional view that an infant injured in a pre-natal accident could never recover if born alive. Courts do. La Chusa . nearly all courts allow him to recover for emotional distress due to another person’s plight. (broad/narrow interp. (Example: P’s mother. takes a drug made by D. Eli Lilly]) 4. physically endangered but not struck). Child born alive: If the child is eventually born alive. or with an unpreventable congenital disease. In the present case. (Example: D makes a drug taken by P’s mother while P is a fetus only a few weeks old. and in fact runs over P’s child S. that the injury occurred before the child was even conceived.Contain liability via bright line rule P may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person only if: (1) the plaintiff is closely related to the victim. (Really hard to quantify) The problem is that the Plaintiff claims not that he should not have been born with defects. (some states allow recovery if you come on scene shortly after it happened). before getting pregnant with P. but may not recover general damages for emotional distress or for an impaired childhood. Mrs. Eyewitness to trajedy – alters your life forever. but rather that he should not have been born at all. negligently failed to diagnose. By J) (2) the plaintiff is present at the scene at the time the injury occurs and is then aware of the injury being caused to the victim." in the sense that it would have been better off aborted. Plaintiff was not present at the scene of the accident. Wrongful life: If a child is born illegitimate. she suffers from some congenital disease or defect (e. Thing v. and P’s distress is due solely to grief. Pre-conception injuries: The above discussion assumes that the injury occurred while the child was in utero. the child may argue that it should be entitled to recover for "wrongful life. often allow the parents to recover for their medical expenses. Zone of danger: If P was in the "zone of danger" (i.. however. Cillo . Nearly all courts would allow P to recover.) b. Rule: An infant plaintiff may recover special damages for the extraordinary medical expenses he will incur. Today. but courts are split as to whether P can recover against D for these pre-conception events.e. BYSTANDER: P witnesses a severe negligent injury to a close family member and P suffers purely emotional distress (without physical consequences). a. P is born with serious birth defects resulting from the drug. she cannot establish a right to recover for her emotional distress. recovery for pre-natal injuries varies: 1. This Court finds that there is no rational way to compare a lack of existence with the pain and suffering of Plaintiff’s impaired existence in order to all recovery for his emotional distress or diminished childhood. therefore. but that some effect from the injury is nonetheless suffered by the later-conceived child.3. (3) as a result suffers serious emotional distress beyond which would be expected of a disinterested witness. UNBORN CHILDREN. nearly all courts allow recovery. and perhaps their emotional distress from the child’s condition EXAMPLE: Procanik by Procanik v. sterility) as a result. however. Abandonment of zone requirement: A number of states – probably still a minority – have abandoned the "zone of danger" requirement.
and an actor is only liable for the damages that resulted out of his negligence. The shock of the explosion makes some scales at the other end of the platform fall down. D’s conduct was not the "proximate cause" of the harm to P. Andrews introduced the concept of the “zone of danger”. ** Another way to look at this is that there is no “transferred negligence” CARDOZO v. Both serve as a means of cutting off a defendant's liability. P will not be able to recover if through some fluke he is injured. You cannot have a duty to those whom you cannot perceive to be in danger of your actions. does not impose an unreasonable risk of harm upon P). even where the injury is thought by the RPP to be outside radius of danger. Time and space 2. who was standing far away. it is risk to another or to others within the range of apprehension. hitting P. Foreseeability is what would I have expected to happen at the moment of the breach. ] Since the conductors would not have anticipated injury to P from their conduct. If you’re within the “zone of danger” created by the defendant’s negligent conduct. Held.recoverable by either the parents or the infant. the doer is liable for all proximate consequences. but they operate in slightly different manners. and if one is negligent.R. but not both. [Palsgraf v. Andrews does believe that negligence can be cut off via proximate cause. However. That is.you're liable. Co. but the employee’s conduct did not involve any foreseeable risk of harm to P. and the damage to her was not foreseeable. they owed not duty to avoid the injury and were not negligent in relation to her. Example: X. then the defendant will be liable for your harm. is pushed by D’s employee. Natural or continuous sequence of events 3. Andrews is not saying . Who are the ppl who might get hurt? It is not foreseeable that someone way down duty analysis = judge – we can stop at duty and don’t need to go to breach/cause/damages.you harmed them. He defines the relationship more broadly.e.. the fact that the conduct was unjustifiably risky to X is irrelevant. P may not recover against D. X drops a package. If you hurt someone/harm them that relationship is formed.. then a duty existed no matter what." unforeseeable p = YOU DON’T OWE A DUTY TO SOMEONE WHOSE FAR AWAY/unforeseeable victim P was unable to demonstrate a right to recovery bc she was an unforeseeable victim. Whether they were standing right there or a mile away . Substantial factor in causing harm And applying these factors. The infant can wait until his majority to recover medical expenses. trying to board D’s train. You harmed them . Andrews – prox cause = jury – you have to demonstrate you were a foreseeable victim of the breach in Q. or as he says. BC there is no duty you are done w analysis Dissent: Andrews says that people have duties to society as a whole. there is a direct relationship w Palsgraf (or it should at least go to the jury) So why the splitting of hairs? It all comes down to the connection between proximate cause and duty. ANDREWS Cardozo: Majority: Cardozo's opinion says that a duty should be extended only to those who could be reasonably foreseen to be within the scope of danger if a person were to act negligently. Unforeseeable plaintiff: No duty to the unforeseeable P: don’t owe a duty to someone who is very far away/an unforeseeable victim The general rule that D is liable only for foreseeable consequences is also usually applied to the "unforeseeable plaintiff" problem. which explode when they fall. which (unknown to anybody) contains fireworks. And the difference is not a mere formality. Direct or remote harm. "The risk reasonably to be perceived defines the duty to be obeyed and risk imports relation. Long Island R. Since D’s conduct did not involve an unreasonable risk of harm to P. The ANDREWS theory 1. D’s employee may have been negligent towards X (by pushing him). but not negligent as to P (i. If an act unreasonable threatens the safety of others. because the judge determines duties and the jury determines proximate cause. if D’s conduct is negligent as to X (in the sense that it imposes an unreasonable risk of harm upon X).
the banana peel is brown/flat = it’s been there a while. – HAND FORMULA .25. “P will claim that D breached this duty by QUOTE FROM FACT PATTERN. D had Actual/constructive notice prove with time and other circumstances a. if it occurs is $1. jury gets to decide 2. the cleanup schedule = evidence c. – Sacrifices individual good: too much emphasis on social good & not enough on individual justice. So Beacon IS required.Access the Burden: 2. Pros: – Places risks & utilities on common scale for comparison. – Protects risks that are worth taking (for society) – Requires that courts be able to explain their conclusions about negligence. and thus it is up to the jury to decide if his actions were the proximate cause of the injury. because APPLY STANDARD OF DUTY UNDER BREACH: US v. L = $1. FORESEEABLE SEVERITY OF ANY HARM: How big an injury did it cause? THE BURDEN OF PRECAUTIONS TO ELIMINATE/REDUCE RISK OF HARM: How expensive would precautions be? . Not having the beacon increases the chance of accident by 25%. he is simply arguing that a duty existed and that duty was breached.P argues she doesn’t need to show constructive . B = $1000. FORSEEABLE HARM: How likely is it that the barge will break away from its moorings? b.that D is liable to P. hard numbers are not necessary) D could purchase avalanche beacon for $100.” ID the conduct and then explain why that conduct falls short of the standard. The condition posed an unreasonable risk of harm Duty is to exercise reasonable care to keep premises safe Manner/Method of Sale: merchant already on notice bc of the manner in which something is sold EXAMPLE: P slips on Pizza on terrazzo floor .CIRCUMSTANTIAL EVIDENCE: Banana peel cases Circumstantial Evidence: requires an inference or additional reasoning to reach desired matter at hand P needs to prove 1. – Gives incentives to invest an appropriate amount in safety. Relative safety of alternative conduct If the expense of precautions is less the expectation value of the injury.000. Social value 3. – Dollar scale simply doesn’t work for loss of life – measuring incommensurables. • Cons: – Critique that it does not provide incentives. They knew or should have known b. Carroll Towing Co. – Proof of Breach .Learned Hand says that the owner’s duty depends on three variables: a.000 B($100) <PL($250). This is unreasonable Reasonable people keep their eyes on the road. The magnitude of accident. P = . Conduct + reason. B ≤ PL Liability depends upon whether B (Burden) is less that L (the injury) times P (Probability) Liability when: B<PL Example: (applies to rough estimates. NEGLIGENCE – BREACH: Identification of wrong behavior. then the court will conclude that the owner had a duty that was breached.
Example: Normally a plane does not fall from the sky – there was an error. the attending physician. because a guest. but is unable to show which one. Rebuttal evidence: 1. By use of the res ipsa loquitur doctrine. At trial. (Example: This requirement is satisfied on the facts of Ybarra. Be an accident 2. even though there is no direct evidence of direct breach negligence. Francis Hotel]) a.NOTICE NOT REQUIRED IF DANGER IS CONTINUOUS 3. Not due to plaintiff: P must establish that the accident was probably not due to his own conduct. [Ybarra v. This is especially likely where all of the Ds participate together in an integrated relationship. (Example: P. Generally: The doctrine of res ipsa loquitur ("the thing speaks for itself") allows P to point to the fact of the accident. General evidence of due care: If D’s rebuttal is merely in the form of evidence showing that he was in fact careful. the effect of res ipsa is to permit an inference that D was negligent. and D may get a directed verdict. rather than the hotel. may have had control of the chair at the moment it was dropped. No direct evidence of D’s conduct: There must be no direct evidence of how D behaved in connection with the event. Requirements for: Courts generally impose four requirements for the res ipsa doctrine: 1. Exclusive control of defendant: P must demonstrate that the instrumentality which caused the harm was at all times within the exclusive control of D. then D will get a directed verdict (assuming there is no prima facie case apart from res ipsa). Preponderance of the evidence 51% A. 3.) C. is hit by a falling armchair.Not required to show 100% certainty.) . It’s an appeal to common understanding. D will lose. or the anesthesiologist must have been at fault. P shows that the barrel fell out of a window of D’s shop. Without more proof. Spangard] = There is NO OTHER WAY this happened except via negligence) 4. and P can show that at least one of the defendants was in control. P gets the benefit of res ipsa. Seldom occurring without negligence: (Wouldn’t have happened if someone was applying due care/RPP) P must demonstrate that the harm which occurred does not normally occur except through the negligence of someone. [Byrne v. this will almost never be enough to give D a directed verdict – the case will still go to the jury. P will generally be able to establish that airplanes usually do not crash without some negligence. D did not exercise reasonable care 4. 5. the doctrine will not apply. the hospital. and is thus entitled to go to the jury. 2. some cases allow P to recover. so unless D comes up with rebuttal evidence that the barrel did not come from his shop or was not dropped by negligence. Example: A barrel of flour falls on P’s head as he walks below a window on the street. and to create an inference that. supra. [Larson v. Evidence more available to D: Some courts also require that evidence of what really happened be more available to D than to P. (Example: P is injured while on the operating table. and it is up to each individual defendant to exculpate himself. since the Ds obviously knew more than the unconscious patient about who was at fault. D's failure to care caused the injury • Burden is on P bc otherwise all P would need to prove is that the accident happened Proof of Breach . D. P has presented enough evidence to justify a verdict for him. negligence is the cause of such occurrences. Boadle] B. Multiple defendants: If there are two or more defendants. When res ipsa is used. Res ipsa thus allows a particular kind of circumstantial evidence. Effect of res ipsa : Usually. Gets you past summary judgment. (Example: If D can show that the instrument that caused the harm was not within his control at all relevant times. P has met his burden of production. while walking on the sidewalk next to D hotel. thus meeting this requirement. Rebuttal of res ipsa requirements: But if D’s evidence directly disproves one of the requirements for the doctrine’s application. P has not satisfied the "exclusive control" requirement. and shows that either the surgeon. St. D was probably negligent. even without a precise showing of how D behaved.RES IPSA LOQUITUR No evidence =res ipsa . and that barrels do not fall out of windows without some negligence. P only has to prove that most of the time.notice bc their method of serving means it’s always dangerous (serving pizza on wax paper to customers who are standing) – D recognize this bc they're always cleaning the floor .
P. Edmonds . P would be uninjured today. B.Causation requires proof of proximate cause and cause in fact for liability to attach Example5: Kramer Service v. the mere possibility that it might have happened without the negligence is not sufficient to break the chain of cause and effect between the negligence and the injury. Is the railroad liable? Is the defendant’s fire a “but for” cause of the plaintiff’s injury? Clearly no. We don’t know which fire did it. Example4: Gentry v. because that death would have occurred even without the failure. Railroad .but they weren't negligent . This happens where two events concur to cause harm.W. since it would have been sufficient to bring the injury about. P’s injuries would not have resulted. D1 cannot defend on the grounds that D2 was a "but for" cause of P’s injuries – as long as D1 was also a "but for" cause. & S. If 2 polluters would depend on how much haz waste each polluter dumped into river.P cut his head on some glass in a hotel. That it’s POSSIBLE . Co.the accident would have happened anyways ∴ no causation . D’s are not causes – breaches are causes. A linkage. Example: A statute requires all vessels to have life boats. (Example: Sparks from D’s locomotive start a forest fire. Minneapolis St. Merged /Concurrent causes: Sometimes D’s conduct can meet the "cause in fact" requirement even though it is not a "but for" cause. M. Crabtree .is not enough for causation MULTIPLE DEFENDENTS: The “but for” test doesn’t work when two actors are negligent and act at the same time.]) –( Hill v. Ry. the defendant is found 100% responsible. and it was clear that the hotel’s negligence was the cause of that harm.Example: Sullivan v. Either fire alone would have been sufficient to burn P’s property. it could not have been launched." C. R. the way P shows "cause in fact" is to show that D’s conduct was a "but for" cause of P’s injuries – had D not acted negligently. Generally: P must show that D’s conduct was the "cause in fact" of P’s injury. Is each breach by itself capable of causing the injury.) Substantial factor test – Anderson v. D1 is viewed as the "cause in fact. CAUSATION NEGLIGENCE – ACTUAL AND PROXIMATE CAUSE I. D’s fire is a cause in fact of P’s damage. P drowns. Railroad . and either one would have been sufficient to cause substantially the same harm without the other. so how do we decide who to hold responsible? In this case. Therefore.Bad husband who hunts instead of paint. Causation in Fact A. Example2: Perkins v. St.Say there is a negligent actor and an innocent actor.Negligence of Df greatly multiplies the chances of accident to the Pl and is of a character naturally leading to it occurrence.They killed him . 1. . D is not liable. the exact cause of the cancer remains UNKNOWN (1939) The plaintiff must prove as an element of the negligence cause of action that the defendant’s negligence was the actual cause of the harm done to the plaintiff. even though it is not a "but for" cause. [Kingston v.The doctrine of Res Ipsa Loquitur creates a burden on the defendant to show a reasonable explanation for the injury. falls overboard in a storm so heavy that.No clear way to establish WHAT caused his gun to go off ∴ can’t prove causation . Joint tortfeasors: There can be multiple "but for" causes of an event. Douglas Hereford Ranch . The evidence connects the accident with the negligence. a sailor. .Can use speed limit to prove negligence per se.Even if train was following speed limit . even had there been a life boat. Chicago & N.RULE: Where separate acts of negligence combine to produce directly a single injury each tortfeasor is responsible for the entire result. D’s failure to provide life boats is not a cause in fact of P’s death. but not that it caused the harm Example3: Reynold v. The strength of that burden depends on the facts of each case and the strength of the inference created. Even assuming that D was negligent per se. "But for" test: The vast majority of the time. the fire merges with some other unknown fire. But for the breach. D sends out a boat without life boats.R. In 2 fires – yes. Wilkins . Therefore. even though his act alone might not have caused it. A fire that was started negligently by the defendant combined with a fire of unknown origin. and the combined fires burn P’s property. Each of these concurring events is deemed a cause in fact of the injury. P.
and P is struck by one of the shots.Type of harm may have been Foreseeable . market concept c. fire A can't be liable D. most courts will allow P only to recover $100. the burden shifts to each defendant to show that the other caused the harm they should fight it out amongst themselves.Foreseeability comes up in 4 ways 1. It is not known who fired the fatal shot. National market share: In determining market share.eggshell skull P – too bad for D 4.000 from D – D will not be made jointly and severally liable for P’s entire injuries. Held. If P cannot prove which of three or more persons caused his injury. If fire b destroyed house and fire A came along and hour later. and that the drug caused P to develop cancer. Unforeseeable Type of Harm a.To be liable . the less likely it is to apply a market-share doctrine. both will be liable. any manufacturer who cannot show that it could not have produced the particular doses taken by P’s mother will be liable for the proportion of any judgment represented by that manufacturer’s share of the overall DES market. Inc. the court will require each of the Ds to pay that percentage of P’s injuries which that D’s sales bore to the total market sales of that type of product at the time of injury. Merrell Dow Pharmaceuticals. Group Health Cooperative of Puget Sound Daubert v. Example: 200 manufacturers make the drug DES. Exculpation: Courts are split on whether each defendant should be allowed to exculpate itself by showing that it did not make the particular items in question – some more modern cases hold that once a given defendant is shown to have produced drugs for the national market. PROXIMATE CAUSE (scope of the risk) Types of Cases . Unforeseeable Manor of Harm . The court will put the burden on each of the Ds to show that it was the other shot which hit P – if neither D can make this showing.whichever was first is liable. Wagon mound – limit liability to foreseeable type of harm b. a court is likely to reject the doctrine where the product is a vaccine. The "market share" theory: In product liability cases. courts usually use a national. Abbott Laboratories. but only one could have caused the injury. The theory is used most often in cases involving prescription drugs. P’s total damages are $1 million. Tice]) 1. For instance.] a. If P can show that each of two (or more) defendants was at fault.) d. Herskovitz v. Multiple fault: There forces did not combine. Socially valuable products: The more socially valuable the court perceives the product to be. P shows that her mother took the drug during pregnancy.then they're all liable (Example: P. If "market share" is the theory of liability. If no one can prove the other did it . D1 and D2 simultaneously fire negligently. No joint and several liability: Courts adopting the "market share" approach often reject jointand-several liability – they allow P to collect from any defendant only that defendant’s proportionate share of the harm caused. no exculpation will be allowed.too bad Public policy doctrine – courts cut off liability .but not the precise manor which it came out . Unforeseeable extent of harm . b. *Sindell v. D1 and D2 go hunting together. (Example: P sues a single D. courts often apply the "market share" theory.Bartolone . P cannot show which DES manufacturer produced the drug taken by her mother. COME BACK TO THESE II. 3rd Restatement §29 – must be within the scope of risk 3. but can show that all produced a defective product. Unforeseeable P – Polsgraf (under duty) 2. rather than local. and shows that that D counted for 10% of the market. [Summers v.
1. . *Wagon Mound No. you can look at the circumstances surrounding the accident to find out if the risk was really foreseeable. which ignites a cotton rag floating on the water. Hunter hands girl gun – she brakes toe – not liable OLD WAY: The Polemis test is: 1. collides with a car driven by X. What would be the result of this case under Polemis? There was a natural sequence of events leading to Mrs. the car contains dynamite. It is an alternative to the foreseeability analysis of Wagon Mound and Palsgraf. Under Polemis. Extensive consequences from physical injuries: TAKE P AS YOU FIND HIM:A key exception to the general rule that D is liable only for foreseeable consequences is: once P suffers any foreseeable impact or injury. Wagon overruled Polemis – now only liable for foreseeable results 2. direct causation – Polemis/wagon mound 1. you have liability no matter how remote the consequences of one’s negligence are. This is no longer the current test. but it is important to know. P will not be able to recover against D. (Example: Each of two drivers drives negligently. D is liable for any additional unforeseen physical consequences. The oil is then set afire by some molten metal dropped by P’s worker. P’s whole dock then burns. Instead.IT DOES NOT MATTER the way the harm came about (just like in prac exam) 3. Each driver is probably a proximate cause of the accident. The proximate cause requirement is a policy determination that a defendant. See 3rd R – shift to scope of risk analysis – gaining ground. 1] 1. Was the defendant negligent? 2. Today. Some of the oil adheres to P’s wharf. General: Even after P has shown that D was the "cause in fact" of P’s injuries. Everyone is liable for the proximate (immediate) results of their own acts. and P is injured.) 2. 1. Unbeknownst to D. even one who has behaved negligently. Palsgraf’s injury. the railroad would be liable. Therefore. and drops P. a nurse who is carrying P. and thus the oil spill was not the proximate cause of the damage. Is the defendant’s negligence a direct cause of the damages? ***Under this case. P MUST SHOW THAT HE WAS A FORESEEABLE VICTIM WHO SUSTAINED A FORESEABLE TYPE OF HARM. Limiting liability to type of harm w in scope of risk. Thus. This is true even though the burning may have been the "direct" result of D’s negligence. even if relatively minor.1. 1 would have come out differently. an infant. In Wagon Mound No. Wagon Mound No. 2 comes out a different way based on different lawyering. because the burning of P’s dock was not the foreseeable consequence of D’s oil spill. Wagon Mound No. Ten blocks away. P must still show that D was the "proximate cause" of those injuries. should not automatically be liable for all the consequences. indirect – some intervening force A. §29 1. before the accident happens. the proximate cause requirement usually means that D will not be liable for the consequences that are very unforeseeable. driving carelessly. Example: D. General type of harm is foreseeable . is startled by the explosion. no matter how improbable or far-reaching. Held. Polemis would have gone the other way. the court adopted a new test: Ex ante. under the old rule. EXCEPTION TO UNFORESEEABLE: B." so it may well have more than one proximate cause. by the rule of Wagon Mound No. because the episode is so far-fetched – it was so unforeseeable that the injury would occur from D’s negligence – that courts will hold that D’s careless driving was not the "proximate cause" of P’s injuries. D is not liable. what would a reasonable person foresee as the kinds of harms that might occur stemming from that negligent conduct? An explosion due to a negligently carried plank is not foreseeable harm. which explodes. Example: D’s ship spills oil into a bay. of his act. Multiple proximate causes: Just as an occurrence can have many "causes in fact.
. and the risk of it was not one of the risks that made D’s conduct initially negligent. knowing that X arrived alone by car." An intervening cause is a force which takes effect after D’s negligence.1. (But D is not liable to Y. steals the car. D’s conduct will nonetheless be the proximate cause. But if neither the intervening cause nor the kind of harm was foreseeable. 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. or if the kind of harm suffered by P was foreseeable (even if the intervening cause was not itself foreseeable). intervening causes are sufficient to prevent D’s negligence from being held to be the proximate cause of the injury. and which contributes to that negligence in producing P’s injury. . D also does not object when X gets out his car keys and leaves.) EX: Derdiarian v. B. has a very thin skull (a skull of "egg-shell thinness"). (Example: D is a tavern owner. P dies. The court says that it is thus appropriate for the jury to find the defendant responsible for this disability. the intervening cause will be a superseding one. Felix Contracting Corp. who serves too much liquor to X. D will be liable if. The plaintiff sued Dickens and the construction company. C. Then the injury may have been unforeseeable." Example: Bartolone v. Run read light and hit ped and break his leg. In handing the pistol to P. IV. Jeckovich . General class of harm but not same manner: Another exception to the "foreseeable consequences only" rule is that as long as the harm suffered by P is of the same general sort that made D’s conduct negligent. X drops it. 1. relieving D of liability. and the car unlocked. but not all. a subcontractor at a construction site. If X drunkenly runs over P. because of the hidden skull defect.lost consciousness while driving and hit the plaintiff. The fall sets off the gun. D is liable to P. Definition of "intervening cause": Most proximate cause issues arise where P’s injury is precipitated by an "intervening cause. a court will probably hold that X’s conduct in negligently (drunkenly) driving.The court finds that the plaintiff had a pre-existing condition such that he was normal until the accident. Superseding cause: Some. X comes along. Test: If D should have foreseen the possibility that the intervening cause (or one like it) might occur. Example: D gives a loaded pistol to X. Where it gets interesting is the gap in time.P was in a car accident w minor injuries but afterwards had sort of an acute psychotic breakdown. D. the court will almost certainly conclude that X’s intervening act was not superseding. to carry to P. since the same general kind of risk that made D’s conduct negligent (the risk of accidental discharge) has materialized to injure P. but the accident pushed him over the edge into debilitating mental illness. Foreseeable intervening causes: Often 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 first place. Where this is the case. and D negligently inflicts a minor impact on this skull. unbeknownst to D. the intervening cause will almost never relieve D of liability. although intervening. If the court believes that the risk of theft is one of the things that makes leaving one’s keys in the ignition negligent. the latter on the theory that they negligently failed to maintain a safe work site. injuring the bare foot of Y. Egg-shell skull: Thus if P. since Y’s foot injury was not foreseeable. PROXIMATE CAUSE – INTERVENING CAUSES A. it is irrelevant that the harm occurred in an unusual manner. and while driving fast to get out of the neighborhood. the fact that the discharge occurred in an unforeseeable manner – by the dropping of the gun – is irrelevant. was sufficiently foreseeable that it should not absolve D of liability. an eight-year-old. 1. Example: D leaves his car keys in the ignition.Dickens – epileptic driver . wounding P.) Direct Harm: when the harm is instantaneous/directly after the act it almost always is foreseeable. runs over P. Intervening causes that are sufficient to prevent D from being negligent are called "superseding" causes. since they supersede or cancel D’s liability. his playmate. 1. Foreseeability rule: Generally courts use a foreseeability rule to determine whether a particular intervening cause is superseding. . while going into a store to do an errand. The defendant "takes his plaintiff as he finds him.
and breaks her arm. 3. Did not happen immediately. The other ppl freak out bc car is in intersection. P loses his balance with new crutches. Med Mal: D breaches Duty causes injury and then a dr makes things worse thru med mal that IS considered foreseeable as a matter of law. theft and the criminal get in the accident. Theory is that if you leave someone in a weakened and debilitated condition it’s your fault and its foreseeable. What is it about this behavior that makes me angry as D – what am I worried about? If what happened is what you were worried about happening – you have a foreseeable type of harm. but not the prox cause and therefore they’re not responsible. Does bad shrimp foreseeable break arms? We are a little surprised. Breach of duty was serving A rotten shrimp. Liability? Depends TYPICAL FACT PATTERNS: 1. Escape: For instance. Analysis: The court finds that it is not unforeseeable that negligently failing to secure a work site near a road might result in a driver entering the site and hurting someone. 1. The compounding of injury as a med screw up in foreseeable. The gasoline vapor was the result of the derailing of a rail car owned by D * If the third party inadvertently lit the match. ends up breaking P’s shoulder trying to get him to safety.* If the act of the third party was intentional and done with the purpose of lighting the gasoline. In most other scenarios – look at breach and ask why you characterize it as negligence in the first place. the Defendant had no way to guard against it. The court says that the question was properly left up to a jury. Keys left in car. Therefore not w in the scope of the restaurants responsibility. breaks P leg. A order shrimp cocktail and its gone bad – makes her sick. P is at cross light w lots of other ppl. 4. Therefore their breach was the cause. or intentionally tortious acts. claiming that the accident was unforeseeable and thus that they should bear no liability. Responses to defendant’s actions: Where the third party’s intervention is a "normal" response to the defendant’s act. Good Sam tries to help. then the negligence of the Defendant is a proximate cause of the Plaintiff’s injury because it is reasonably foreseeable that someone might light a cigar on the street. then the Defendant is not liable because the Defendant could not have foreseen that someone would maliciously light a match with the purpose of causing an explosion. This is true even if the response was not all that foreseeable. breaks P leg. 2. EX: 3 ppl go to lunch. Rule: The defendant will not be held liable if the intervening act of the third party is not a foreseeable consequence of the defendant’s negligence. P or someone else attempts to escape that danger. Criminally or intentionally tortious conduct: A third person’s criminal conduct. the court is more likely to find the act superseding if it is criminal or intentionally tortious than where it is merely negligent. In the process she slips in vomit. The defendant appealed. breaks P leg. Foreseeable that a rescuer could come along and make things worse. This is a breach bc reasonable people know that if you leave shrimp unrefrigerated it makes you sick. B goes to the ladies room to find her. In this instance the explosion could not have occurred without the gasoline first having been spilled. Example: Watson v. falls and breaks his arm. Intervening Reaction or protection forces: D runs red light. P gets cast/crutches. But in general. that response will generally not be considered superseding. Because such an act is not reasonably foreseeable. They react – stampede – one person steps on the face of P who is on the ground. D is liable for disfigurement. 2. D is liable for broken arm. Leaves a perm scare. the attempted escape will not be a superseding cause so long as it was not completely irrational or . The D will be liable for both injuries. D. may also be so foreseeable that they will not be superseding.The plaintiff prevailed at trial. A subsequent disease or accident: D runs red light. Kentucky P was injured when a third party lit a match and ignited gasoline vapor causing an explosion. Intervening Neg Rescue: D runs red light. B sues the restaurant. if in response to the danger created by D. A goes to the bathroom. Indirect cause.
POLICY – want to encourage ppl to be DDs Enright v. unless it is performed in a grossly careless manner. then they can still recover Public Policy – impact on Prox Cause Kelly v. Bars .ABC laws . which in turn gave you cerebral palsy Public Policy: Don’t want to discourage drug companies from making drugs. P’s response is not sufficiently bizarre to constitute a superseding cause. knowing both that the guest is intoxicated and that he will thereafter be operating a motor vehicle. If Rescuer meets all 3 – D is liable to rescuer if rescuer is injured. D may be liable to the person being rescued (even if part or all of his injuries are due to the rescuer’s ordinary negligence).there is no duty *DD precluded from liability. Gwinnell Hold: A host who serves liquor to an adult social guest.only would pay a portion *NJ is alone in this – in most other states for social hosts . Here .the harm could go on for generations. Cut off recovery for those who were ACTUALLY harmed. or to the rescuer. Gatekeeping concerns . Eli Lilly Can't recover from drugs ingested by your gma. Rule: An intentional intervening act like suicide does not sever the causal relationship with the primary tortfeasor. After several months he committed suicide. Rescue: Similarly. if you caused accident – have to help 2. Even though most drivers in P’s position might not have reacted in such an extreme or unhelpful manner. Preis . which hurt your mom in utero.bizarre. and slams into a railing. if D’s negligence creates a danger which causes some third person to attempt a rescue.are liable Dissent: Unrealistic Burden.) Fuller v. POLICY. when it is shown that the decedent was incapable of resisting the impulse to kill themselves as a result of the tortfeasor 2. P panics. When a person reaches a certain BAC anybody in contact w them should have known . Rescue Doctrine. (Example: D. Not a prox cause reason *NJ Statue later cuts down this Rule. Different from commercial bar. is liable for injuries inflicted on a 3rd party as a result of the negligent operation of a motor vehicle by the adult guest when such a negligence is caused by intoxication EXPAND RULE: used to just apply to minors/commercial establishments. Courts see themselves as in line w aggressive anti-drunk driving legislature. Gma and Mom could sue.Following a collision with the defendant. Social host Majority: Public Policy (avoid drunk driving accidents) trumps imposition. sideswipes P’s car on the highway.we want ppl to rescue Firefighter’s Rule: bars suits by professional rescuers who are injured by hazards of their profession If it’s not a foreseeable consequence of their duties. once you start – you can’t stop Requirements for achieving rescuer status: 1-Did D’s negligence place victim in imminent peril (actual or apparent)? 2-Did P reasonably conclude that victim was in peril? 3-Did P use reasonable care to rescue victim? Usually this is a question for the jury. this rescue will normally not be an intervening cause.social host is not jointly and severally liable . driving negligently. thrusts the wheel to the right.allows an injured rescuer to sue the party which caused the danger requiring the rescue in the first place 1. the decedent suffered head injuries causing multiple serious epileptic seizures.
Under the maximum recovery rule. F.Some J’s adjust for future inflation 2. P may generally either accept the remittitur or request a new trial. Sears.DAMAGES I. even if loss of that ability has no economic consequences. Direct loss: The value of any direct loss of bodily functions. even if P was reimbursed for these losses by some third party. .. which will terminate on P’s death. household attendant. and recovers in that action not only for past damages.000. Chapman Because the determination of damages is a question for the trier of fact.000. Future damages: P brings only one action for a particular accident. Tax: Any recovery or settlement for personal injuries is free of federal income tax. v. (Example: Compensation for loss of the ability to walk/loss of enjoyment of life.) c. Anderson The collateral source rule prevents the introduction of evidence of payments received by an injured party from sources collateral to the wrongdoer . with no physical symptoms. based on all of the evidence as to each element of damages." Montgomery Ward & Co. PER-DIEM argument: legal strategy – break physical/mental suffering into hours/days.) D. * The maximum recovery rule is intended to protect the role of the jury as finder of facts. nominal damages may not be awarded.D is liable for all damages that result. If ur P is weak or frail – you got to pay. a variety of damages may be recovered by P. These include: a. (ii) future physical and mental pain. Elements of damages: But once physical harm has been proven. (Example: In New York medical malpractice cases. 1. but also for likely future damages. the court will only issue a remittitur if the damages shock the judicial conscious (excessive based on the evidence) E. P must usually show that he suffered some kind of physical harm.g.A motion for remittitur is a request for the court to lower the damages levied against D. courts generally instruct the jury to award P only the "present value" of these losses. Roebuck & Co. (iv) loss of earning capacity . Some states (e. Even if they are surprisingly great in scope/greater than expected. PERSONAL INJURY DAMAGES GENERALLY Eggshell Skull: Once D has committed the other 3 elements of the tort . lost earnings.000 for the loss of a leg/disfigurements) b. five elements of damages are applicable: (i) past physical and mental pain. Unlike intentional tort actions. You take ur P as you find him. Periodic payments: Some states now allow D to force P to accept periodic payments in certain situations. EX2: Richardson v.) B. Gives appearance of mathematical precision – juries like it bc damages are quantifiable G. Pain and suffering: Pain and suffering damages. New York) do not allow hedonistic damages where P is in a coma. (Example: P may not recover where he sustained only mental harm. (iii) future medical expenses. Inc. Economic loss: Out-of-pocket economic losses stemming from the injury. 1. Present value: When P is recovering future values.breached duty and is the cause . the existence of actual injury is required. C. This is known as the "collateral source rule. . d. The collateral source rule: At common law. maximum recovery rule: Anderson v. where the judgment is for more than $250. If granted. D may pay the judgment by purchasing an annuity for P. (Example: $100. P can argue for future inflation . These payments generally terminate upon P’s death. a court will overrule a jury’s determination of damages only if the damages exceed the maximum amount the jury could reasonably find based upon all of the evidence. Judges must determine only the maximum award that the jury could reasonably have reached. (Examples: Medical expenses.D should not get the benefit (Example: P has hospital bills of $100.(Have Life Expectancy Tables) permanent disability and (have to show Permanent loss ) (v) disfigurement.) 2. A. Hedonistic damages: Damages for loss of the ability to enjoy one’s previous life. * In the present case. Actual injury required: In any action based on negligence. Physical injury required: Furthermore. Consciousness required: Courts are split about whether P must be conscious of the loss in order to be able to recover damages. P is entitled to recover her out-of-pocket expenses.
D may escape liability for the avoidable injuries.000 even though in a sense she has collected twice. P may recover the whole $100. Legislative Control of Amounts Recovered. a. Subrogation: Where the common law rule remains in effect. An insurance company that makes payments to P will normally be subrogated to P’s tort rights.S. awarded for the purpose of punishing the D. H. failure to use a seat belt may deprive P of recovery under the duty to mitigate – if D can show that P would not have been seriously injured had P worn a seat belt. Due process: A defendant might be able to show that a particular punitive damages award violated its Fourteenth Amendment due process rights. P cannot recover for any harm which. If a jury is given unlimited discretion in deciding whether and in what amount to award punitive damages. When P sues D. and establishes liability. However. or recklessly disregarded the risk of a defect. Product liability suits: Punitive damages are also frequently awarded in product liability suits. Ausland . P's don’t have a RIGHT to punitive damages. 2. not P.A health insurance policy owned by P pays every dime of this. In Indiana P gets 25% and state gets 75%. a plaintiff has a duty to mitigate those damages by submitting to treatment that would cure the damages if a reasonable person would do so under the same circumstances 1. Statutory modifications: Nearly half the states have modified the common law collateral source rule in one way or another. P cannot recover for any harm which would have been avoided had P sought adequate medical care. 2. In particular. 1. if P shows that D knew its product was defective. the mere fact . by exercise of reasonable care.Punitive damages can be awarded to penalize a defendant whose conduct is particularly outrageous. P’s lying – her condition brought on by another cause/illness – she never took time off work – she paid all out of pocket – compelled to return to work early to forego additional med care 1. this may violate due process.torn knee cartilage . EX: ZImmerman v. If deprived of its use – get damages that value the use of which P has been deprived *If have a purely personal value (family heirloom) then may recover the value to the owner * Can recover for pets (but not emotional distress) *Consequential Damages (cost of recovering horses/lost profits while locked out of business) Property: Markets value of the property if sold on the open market at time and place of the wrong PUNITIVE DAMAGES A. who will actually collect any judgment from D up to the amount of the payments made by the insurer.). punitive damages are usually awarded only where D’s conduct was "reckless" or "willful and wanton." EX: Cheatham v. Rule of Avoidable consequences/Mitigation: P has a "duty to mitigate. Loss of Consortium: I. **Gratuitous benefits (spouse nurses u back to health) – also covered 4 Exceptions: 1. it is the insurance company. he could have avoided. Punitive damages generally: Generally not available . That is. Constitutional limits: The U." That is. and deterring others. Constitution places some – but not severe – limits on the award of punitive damages. If damaged you get the difference .In order to recover for permanent injuries. P may not get a windfall after all. Deterring D not to do it again." a. Any amount of punitive damages given to the plaintiff is a "creation of state law. CAPS/limits on Damages = tort reform – think Med Mal Property damage: Chattel: IF completely destroyed or converted – then you get the entire value. It’s an additional sum of $ over and above the compensation for the harm suffered. Negligence cases: In cases of negligence (as opposed to intentional torts). J. Seat belt defense: In some states. Pohle Punitive damages = deterrent/punishment ∴ States have broad discretion.
P will be totally barred from recovery because of his contributory negligence. contributory negligence usually may not be asserted as a defense. Negligence per se : Contributory negligence can usually be asserted as a defense even to D’s "negligence per se. Exxon Shipping Co. hits and kills P. Had P behaved carefully." contributory negligence usually will be allowed. D. Proximate cause: The contributory negligence defense only applies where P’s negligence contributes proximately to his injuries. ) (Example: P. P will not be barred by contributory negligence. suppose that D was traveling so fast that even had P been careful. Baker SC reasoned that although punitive damages were warranted. EX. 1 to 1 ratio between punitive and compensatory damages was "a fair upper limit" in maritime cases that involved recklessness. if the doctrine applies. General rule: At common law.particularly egregious conduct may justify a higher ratio Utah court give a 9-1 ratio (basically as far as they could go w out risking remand by SC) SC sets outer limit of what is constitutionally appropriate . 3. of P’s injuries. if P’s conduct is found to have been "willful and wanton" or "reckless. 1. The same test for "proximate causation" is used as where D’s liability is being evaluated.e. and whose negligence contributes proximately to his injuries.e. the care of a "reasonable person under like circumstances"). Standard of care: The plaintiff is held to the same standard of care as the defendant (i. Intentional torts: the defense may not be used (he should have ducked when I punched) 2. D had an opportunity to prevent the harm. is totally barred from recovery (even if 5% neg) – still in 5 J’s. DEFENSES IN NEGLIGENCE ACTIONS I.. Willful and wanton: Similarly. v. (But if D’s negligence is merely "gross. just before the accident.that the punitive damages are large relative to the compensatory damages will not by itself lead to a due process violation. D . they may not exceed what Exxon already paid to compensate victims for economic losses. while crossing the street. SC wants damages to be predictable." the contributory negligence defense will not be allowed. Campbell Rule: The Due Process Clause of the Fourteenth Amendment prohibits the imposition of grossly excessive or arbitrary punishments on a tortfeasor. C.) B. Even though D’s negligence is much greater than P’s. because his negligence was not a "but for" cause. and P did not have such an opportunity. Co.) E. fails to pay attention. Last clear chance: The doctrine of "last clear chance" acts as a limit on the contributory negligence defense. he would have been able to get out of the way.that’s probably 9-1. the existence of this opportunity (this last clear chance) wipes out the effect of P’s contributory negligence.. If.) The idea is that the defense does not apply where D disregards a conscious risk. the reason is that elementary notions of fairness enshrined in constitutional jurisprudence dictate that a person receive fair notice not only of the conduct that will subject him to punishment. D would still have struck P. and thus not a proximate cause. which was about US$500 million. discovers P’s plight shortly before the collision.) D. (Example: On the facts of the above example. (Example: P crosses the street without looking. The doctrine provides that a plaintiff who is negligent. but also of the severity of the penalty that a state may impose Gore: 4-1 Ratio Here: 145-1 . his negligence based on a statutory violation. b. D. State Farm Mutual Automobile Ins. Claims against which defense not usable: Since the contributory negligence defense is based on general negligence principles. it may be used as a bar only to a claim that is itself based on negligence." i. the doctrine of contributory negligence applies. (But if the statute was enacted solely for the purpose of protecting a class of which P is a member. traveling at a high rate of speed while drunk. who is traveling faster than the speed limit. compared to the lower liability of negligence or the higher liability of intentional conduct.not reasonable Court does not want a bright line rule . v. CONTRIBUTORY NEGLIGENCE A.
000. and P may recover against D. P’s damages total $1 million. All parties before court: If all defendants are joined in the same lawsuit. most comparative negligence statutes will not apply. 30% responsible. D. Under traditional "joint and several liability" rules. and X.) 2. 1. hard questions arise concerning jointand-several liability. Commonly adopted: 46 states have adopted some form of comparative negligence B. who is/are found to be only partly responsible for P’s loss. The issue is whether the defendant(s) before the court. but "willful and wanton" or "reckless.000 – $100. Extreme misconduct by D: If D’s conduct is not merely negligent. P is 20% negligent. 50% responsible. C. the seat belt defense is more successful. It is not clear whether P can collect the full $800. the solution is simple: only the negligence due directly to P is deducted from his recovery. Intentional tort: But if D’s tort is intentional. Court were uncomfortable totally baring P’s claim – so carved out this exception. but can’t find or sue X. which D failed to take advantage of. A jury finds that P was 30% negligent and D was 70% negligent. Not all parties before court: If not all defendants are before the court. must pay for the whole loss aside from that caused by P’s own fault. COMPARATIVE NEGLIGENCE A D is always entitled to show that the P did not e did not exercise proper care (reasonable care under the circumstances/statutory standard (jaywalking – not protecting ur own safety) for her own safety. (Example: P suffers damages of $100. Some states have completely abolished the doctrine of joint-and-several liability in comparative negligence cases (so that P could recover only $300.000 minus 30% of $100. (Example: P’s accident is caused by the negligence of D and X. Doesn’t make much sense.000 on the above example). P’s damages should therefore be reduced.000 from D. courts refuse to allow the seat belt defense at all. P will recover. but his recovery is reduced by a proportion equal to the ratio between his own negligence and the total negligence contributing to the accident. II. "Pure" versus "50%" systems: Only 13 states have adopted "pure" comparative negligence.) Discretionary act by jury. Seat belt defense: The "seat belt defense" is increasingly accepted in comparative negligence jurisdictions. D argues that P’s injuries from a car accident could have been reduced or entirely avoided had P worn a seat belt. The jury finds that P was 20% responsible. P sues D. (Example: On the facts of the above example. Various approaches: States have four or five different approaches to this problem. It instead attempts to divide liability between P and D in proportion to their relative degrees of fault. comparative negligence is harder to apply: 1. and D2 is 30% negligent. D’s discovery of the danger gave him a last clear chance to avoid the accident. P’s failure to wear a seat belt does not count against his recovery in most courts. by which P and the Ds share the burden of an absent or insolvent defendant. E. So P would recover $600.000 total. Comparative negligence jurisdictions: But in states that have comparative negligence. P would bear 2/5 and D 3/5 of the burden of X’s absence. (2) D is liable for all injuries. and the defendant improperly did not avoid the accident. in proportion to their own fault.) D. Multiple parties: Where there are multiple defendants. Pure – Modified. P is not barred from recovery by his contributory negligence. and (3) D is liable for all injuries. P never spotted D’s car at all. . he is liable.) Example2: Davies v. A. 1.) a. Contributory negligence jurisdictions: In most contributory negligence jurisdictions. but P’s fault reduces his recovery for those injuries that would have been avoided. An important emerging approach is the "allocative" approach. but negligently hits the accelerator instead. 2. D1 is 50% negligent.000. There are various approaches: (1) D is liable only for those injuries that would have occurred even had P worn a seat belt. Mann P had an ass grazing on the side of a public highway D’s wagon came down the path at “a smartish pace” and knocked down the ass.tries to hit the brake. $70. killing it. RULE: If the defendant had an opportunity to avoid the accident after the plaintiff no longer had such an opportunity. 1. F. under a comparative negligence system. (Example: Taking all negligence by all parties. P will recover 80% of his damages. Definition: A "comparative negligence" system rejects the all-or-nothing approach of contributory negligence. or "greater" than D’s. Last clear chance: Courts are split about whether the doctrine of last clear chance should survive in a comparative negligence jurisdiction.000. In this defense.The rest completely bar P if his negligence is (depending on the state) "as great" as D’s. with a reduction made equal to the percentage of P’s fault. P would be able to collect this full $800. That is. This last clear chance wipes out the effect of P’s contributory negligence." most states nonetheless will reduce P’s damages.
) C. and for D’s intentionally tortious conduct. P was injured when she fell through the floor of a detached privy. her doctor. at common law. and defendant did not provide an essential public service such that an exculpatory clause would be "patently offensive" to the citizens of Maryland. D posts big signs at the gates warning of the danger of foul balls. Express assumption: If P explicitly agrees with D. Effect of statute: Thirty-two states have mandatory seat belt use statutes. because he has expressly assumed the risk. P had no other alternative 3. National Fitness Institute. whom P must patronize because of D’s monopoly. P knows about the hole. but nonetheless steps in it while going to the bathroom. and (2) voluntarily consented to bear that risk herself Via conduct Example: D owns a baseball team. (Example: D is a public utility or common carrier. Voluntary assumption: The requirement that P consented voluntarily is also strictly construed. the risk must be one which was actually known to P. Public policy against assumption: But even P’s express assumption of the risk will not bar P from recovery if there is a public policy against the assumption of the risk involved.) (EXAMPLE2: Seigneur v. 1. Inc entered into a participation agreement with defendant health club. But the majority of these either prohibit the seat belt defense completely or make the defense almost valueless by allowing only a small reduction of damages. This is because P knew of the risk in question. Here. (Example: Even if P signs a contract with D. Where such an assumption is shown. P is said to have "expressly" assumed the risk of that harm. After the lease starts. The exculpatory clause expressed a clear intent to release defendant from liability from all acts of negligence. Example: Rush v. Knowledge of risk: The requirement that P be shown to have known about the risk is strictly construed. Assumption of the risk requires actual knowledge of a particular risk. a place where she and all other fans know many foul balls are hit. because D’s conduct left P with no reasonable alternative but to walk down the hallway to get to the bathroom. ASSUMPTION OF RISK – an affirmative def." no court will enforce this. not merely one which "ought to have been" known to her." 1. She has to use a common bathroom at the end of a hallway. "I agree not to sue you for malpractice if anything goes wrong with my operation. he must show that P’s actions demonstrated that she: (1) knew of the risk in question. a. (Example: P rents a room in a boarding house from D. the court is likely to find that public policy prohibits use of the assumption of risk doctrine. If P is hit by a foul ball. P may be held to have assumed certain risks by her conduct. 2. Bargaining power: For instance. Definition: A plaintiff is said to have (1)assumed the risk of certain harm if she has (2)voluntarily consented to take her chances that harm will occur. If P is injured. the plaintiff is. a hole in the floor leading to the bathroom develops. Following plaintiff wife's injury at defendant's club. there is no assumption of the risk if D’s conduct left P with no reasonable choice but to encounter a known danger. P signs a release given to him by D in which P agrees to "assume all risk of injury" that may result from the bungee jumping. the assumption of risk is said to be "implied. this will probably not bar recovery. and D uses this power to force P into a waiver of liability. and in each game buys a seat right behind home plate. appreciation of its magnitude and voluntarily encountering the risk. plaintiffs sued defendant. III. (Example: P wants to go bungee jumping at D’s amusement park. and D negligently fails to fix it. he will not be able to sue D. The participation agreement contained an exculpatory clause which purported to release defendant from all liability for injuries caused by defendant's negligence. Commercial Realty Co. saying. Plaintiff won a suit against the Defendant landlord. Intentional or willful misconduct: Public policy usually prohibits a waiver of liability for D’s willful and wanton or "gross" negligence. P has attended many games. Duress: For instance. Health care: Courts almost never allow P to expressly assume the risk of harm with respect to medical services. she will not be able to recover against D even if D negligently failed to screen the home plate area. Even if P expressly assumes the risk. For instance. P will not be barred from recovery by an implied assumption of risk. that P will not hold D liable for certain harm. if D’s position as a unique provider of a certain service gives him greater bargaining power than P. Two requirements: For D to establish implied assumption. in advance of any harm. completely barred from recovery B. a. c. and voluntarily consented to bear that risk.) . A.a. Implied assumption of risk: Even if P never makes an actual agreement with D whereby P assumes the risk. b.
and leaves a foreign object in P’s body. not applicable for intentional torts. or may instead not start to run until P discovered (or ought to have discovered) the injury.This cases take time to notice . 1. even for personal injury suits. the statute of limitations may start to run at the time of the negligent act. or reasonably should have discovered the negligent injury.abandoned the interspousal immunity rule. STATUTE OF LIMITATIONS When does it start?? D has burden to plead SofL A.all were doing is assumption of the risk analysis . W cannot sue H. probably most. because P’s dilemma is not the result of D’s wrongdoing.b.The legal inquiry is the same under a comp negligence test ∴ no need for implied assumption of the risk analysis Once a J has comp neg . Fraud – harm concealed – statute tolls 3. .) 2. Other states have partially abolished it (e. the statute of limitations in medical malpractice actions begins to run when the plaintiff discovers. You can’t see it.) 4. the defense will apply. IMMUNITIES A. but unreasonably.its INSIDE ur body. inter-spousal immunity prevented suits by one spouse against the other for personal injury.) Blackburn v. Plaintiff did not discover the negligence until three years later when she gave birth. allowing spouses to bring suit against one another in tort. decides to take her chances as to a certain risk. Many. RULE: The concept of comparative negligence eliminates the need for the affirmative defense of implied assumption of the risk.IAofRisk does not add very much IV.. statutes and case law today frequently apply the "time of discovery" rule. states today would allow P to sue. (Example: P voluntarily. W cannot sue for battery. (Example: D performs an operation on P in 1970.Three cases where consolidated by the Supreme Court of Florida to determine if the doctrine of implied assumption of the risk was viable as an absolute bar to recovery subsequent to adoption of comparative negligence.g. or not applicable for automobile accident suits). including (i) distinctions between express and implied.Florida 1977 . Dorta . RULE: Under Tennessee law. Currey . The statute of limitations is six years on tort actions. Distinguished from contributory negligence: Often. knowing that D’s car has bad brakes. If H intentionally strikes W. He asks D – who had nothing to do with the injury – to drive him to the hospital. Choice not created by D: Where it is not D’s fault that P has no reasonable choice except to expose herself to the risk. and between parent and child. V. on the theory that the statute only started to run at the earliest time P knew or should have known that the object was left in his body. P discovers the problem in 1990. * Even if J still has spousal immunity – DN apply for car accidents – owe same duty as to any other passenger .) a. Abolition: But over half the states have now completely abolished the inter-spousal immunity. (ii) between primary and secondary and (iii) between strict and implied (landlord/tenant) These Labels are not that meaningful . Discovery of injury: If P does not discover his injury until long after D’s negligent act occurred.D negligently performed a surgery on the Plaintiff. Teeters (Plaintiff) that was intended to prevent future pregnancy. P’s assumption of risk will also constitute contributory negligence. Family immunity: The common law recognizes two immunities in the family relationship: between spouses. Plaintiff sued and Defendant answered claiming the statute of limitations as a bar to recovery. P assumes the risk of injury due to an accident caused by the bad brakes. (Example: P is injured and needs immediate medical help. Several categories of assumption of the risk have developed. 1. and sues immediately. Minor – statute tolls till they reach age EXAMPLE2: Teeters v. Husband and wife: At common law. Medical malpractice: In medical malpractice cases.) – (Freehe v. Freehe . (Examples: If W is injured while a passenger in a car driven negligently by H.
4.g. NY Police authorities are not liable for failing to provide special protection to individuals threatened with harm.2. Charitable immunity: Charitable organizations. Oregon Health Sciences Uni. but tends to breed neglect and irresponsibility. if police authorities undertake responsibilities to specific individuals and expose them to risks without adequate protection. and cannot be sued at common law. under the Federal Tort Claims Act (FTCA). PO-PO Riss v. as well as educational and religious ones. Sisters of St. with most carrying insurance to pay for torts. there is "sovereign immunity. But today charities are big business. tort actions are allowed. D. BC Oregon govt imposed caps on damages . Governmental immunity: At common law. (Abernathy v. Police departments. and some that have not done so allow suits where there is liability insurance. To continue to allow immunity is not only unjust to the injured. or abolished where there is liability insurance).Unlike the present case. where a local government unit performs a "proprietary" function. BUT . Abolition: In any event. Mary's . "Proprietary" functions: But even at common law. Again. Government officials: Courts often grant public officials tort immunity.) b.(Examples: Legislators and judges generally receive complete immunity. Local government immunity: Local government units (cities. 1. public hospitals. and which are often engaged in by private corporations. (Examples: The running of hospitals. airports. many (though not most) states have abolished this immunity. Abolished: But more than 30 states have now abolished charitable immunity. Zellmer – Steparent – En loco parentis? ○ If you are ACTUALLY acting as the Parent/Stepparent . United States: Suits against the federal government are generally allowed today. most states have abolished the general local government immunity. school districts. abolished as to charitable hospitals. When a municipality voluntarily assumes a duty and negligently performs the duty. Shifts in our thinking of what we expect from police. But many have abolished that immunity. etc. Police attitudes changed over last 2 decades EX: DeLong v." preventing anyone from suing the government. even where their public employer could be sued. 1. Erie County Having an emergency call system does not create a duty. DeLong’s placing of the call and her further reliance when she was assured that help was on the way. fire departments and school systems are not proprietary.(Ex: Clarke v. they can therefore be the subject of suit for personal injuries.. does create a duty. But the FTCA does not allow certain types of tort suits 2.) have traditionally had sovereign immunity as well a. Evolution in the law = now we protect victims of domestic violence much more. Others have cut back on the doctrine (e. yes immunity for hospital) C. the municipality may be held liable if its conduct somehow increased the risk to defendant.you are immune (provide financial support/discipline child) ○ But just marrying the parent does not give you immunity * No duty to meet idealized standard – want to keep parental autonomy B.Ms. there is an immunity that bars suit by a child against his parents or vice versa. Parent and child: At common law. is generally proprietary.. etc.The reasons for the common law rule of immunity for nongovernmental charitable organizations are no longer applicable . Proprietary functions are ones that have not been historically performed by government. utilities.The doctrine of immunity for charitable organizations arose from the belief that it was better for the individual to suffer than for society to be deprived of the benefits of the charity. since these are revenue-producing activities. 3. State governments: State governments have traditionally had similar sovereign immunity. * NO IMMUNITY if action is willful or wanton (sexual abuse) EX: Zellmer v. and others have limited it.No immunity for individuals. receive immunity at common law. there is no immunity. Employer Immunity: Workers Comp = immunity from tort liability .) * Waive immunity for intentional torts C. as long as their act is within the broad general scope of their duties. However .
Goertz A "newspaper boy" is likely to be an independent contractor. an Osco employee.VICARIOUS LIABILITY I. Applies to all torts: The doctrine applies to all torts. unwise or even forbidden. and the employer is not liable under respondeat superior for the employee's conduct during that lapse. Minimed sprayed pesticide overnight at their facility and Hernandez became ill the following day because of the spray and asked to leave work early. EMPLOYER-EMPLOYEE RELATIONSHIP A. was acting within the scope of his employment at the time of the accident. is taking a two-hour trip to visit a business prospect." 6 Factors: 1. B. Look to the person higher up – want the deep pockets 1. Nature. • COMMUTE NOT under Scope of Employment • BUT . she makes a five-minute detour to buy a pack of cigarettes. Who is an "employee": Respondeat superior is applied to all cases involving "employees. Welch O'Shea. 1. not just the general manner in which the work is turned out. Minimed Irma Hernandez was an employee of defendant Minimed. by contrast. time and place of deviation 3.there is an exception to the "commings and goings" rule Drinking at work could be an example Just as breathing dangerous fumes as in this case EX: Bussard v. O'Shea alleged that Welch. Rule: "If an employee wholly abandons. she is not acting within the scope of her employment. courts are divided. 1. (Example: Murrell v. Frolic and detour: Even a detour or side-trip for personal purposes by an employee may be found within the scope of employment if the deviation was "reasonably foreseeable. Scope of employment: Respondeat superior applies only if the employee was acting "within the scope of his employment" when the tort occurred. ) Ex: O'Shea v. In his complaint. On her way home. Physical details: The "control" required to make a person an employee rather than an independent contractor is usually held to be control over the physical details of the work. although hired to produce a certain result. a salesperson. not an employee. the act is not within the scope of employment. the employer's business for personal reasons. " You must therefore distinguish between these two. An independent contractor. If an accident occurred during the detour. such as whether the work should be done by bike or automobile. a. is not subject to the close control of the person doing the hiring. even if the means he chose were indirect. this would probably be held to be "within the scope of employment. because the newspaper usually controls only the general terms of employment – such as the time by which the deliveries must take place – not the physical details. Respondeat superior doctrine: If an employee commits a tort during the "scope of his employment. provided that the tort occurred during the scope of the employee’s employment. sufferred injuries when the car he was driving was struck by a car driven by defendant. ) C." but not to most cases involving "independent contractors." so that D’s employer would be liable." 2. who was stopped at a red light. Trips from home: Most courts hold that where an accident occurs where the employee is travelling from her home to work. The work for which the employee was hired . Bussard filed this action against Minimed for liability under the doctrine of respondeat superior. Employees Intent 2. If the employee is returning home after business. Inc. Welch. But a two-hour detour for personal business while on a one-day trip would probably not be within the scope of employment. The tort is within the scope of employment if the tortfeasor was acting with an intent to further his employer’s business purpose. Rule: "'[F]oreseeability' as a test for respondeat superior merely means that in the context of the particular enterprise an employee's conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer's business. The time consumed in the deviation 4. Barbara Bussard. Hernandez became dizzy and crashed into the car of plaintiff. " (Example: While D.if foreseeable . Distinction: The main idea is that an employee is one who works subject to the close control of the person who has hired him." his employer will be liable (jointly with the employee). even temporarily. including intentional ones and those in which strict liability exists.
(3) a common pecuniary interest in that purpose. Rath . one who employs an independent contractor will also be liable where the work is such that. a business owner cannot delegate his duty to keep the premises safe for business visitors. The negligence of the driver is imputed to the passenger (either to allow the occupant of a second car to recover against the passenger. not in an attempt to further D’s business. The clerk ignores this rule and loads the gun. this can give rise to employer liability. sale of guns. a trip). Forbidden acts: Even if the act done was expressly forbidden by the employer. X commits assault. Use in auto cases: The doctrine is used most often in auto accident cases. except that it is for a short and specific purpose (e." i. (Examples: A city cannot delegate its duty to keep its streets in good repair. D will be liable because the loading. if the employer is herself negligent in her own dealings with the independent contractor. or to prevent the passenger from recovering against the negligent driver of the other car under the doctrine of imputed contributory negligence). may subject each of the participants to vicarious liability for the other’s negligence. ) EX: Maloney v.5. Nurse kills P.. express or implied. 1. who drives his car into the trench – D knew or should have known that the work being done posed peculiar risks to motorists. a storekeeper. Personal motives: But if the employee merely acts from personal motives. (Example: Nurse at D hospital has always hated P because of a prior fight. Generally: A "joint enterprise. the employer will generally not be liable. there are some duties of care that are deemed so important that the person doing them will not be allowed to delegate them to anyone. X leaves the trench unguarded without warning lights at night. because Nurse has obviously acted from personal motives. Intentional torts: The fact that the tort is an intentional one does not relieve the employer of liability. ) 2. The freedom allowed the employee in performing job responsibilities 3. No general liability: One who hires an independent contractor is not generally liable for the torts of that person B. was done in furtherance of the employer’s business purposes. an independent contractor. hires X." where it exists. performing the work negligently. who she should know will probably not do the work safely. (Example: X is a bill collector for D.Duty to maintain one's breaks is a non-delegable duty (It’s still mechanic fault .g.(Example: D knows that the work to be done is hazardous if not done with special precautions. JOINT ENTERPRISE A. it will be "within the scope of employment" if done in furtherance of the employment. (Example: D. ) a. risks differing from commonly-encountered risks. to dig a sewer in the street. between the members. She chooses a contractor. injures P. D will be liable. ) III. Employer’s own liability: First. D will be liable to P. B. because of her own negligence in selecting X. Unusual risk: This special rule of vicarious liability applies only to "peculiar risks. ) 4. Non-delegable duty: Second. expressly orders his clerk never to load a gun while showing it to a customer. Rule: Generally when an activity carries the risk of death or serious bodily injury u cannot avoid liability for negligent maintenance by delegating the maintenance to an independent contractor 3.e. D is liable for the consequences.. (Example: D. though forbidden. Requirements for joint enterprise: There are four requirements for a joint enterprise: (1) an agreement.Just Don’t want to leave P's to sort it all out. While P is in the hospital. X. there are some important exceptions to the rule that an employer is not liable for the torts of his independent contractor: 1. D will not be liable. unless special precautions are taken. (2) a common purpose to be carried out by the members. the gun goes off and the customer is hurt. X. there will be a high degree of danger to others. Exceptions: However. a. battery and false imprisonment on P in attempting to collect a debt. a driver cannot delegate the duty to keep her brakes in good working order.. The incidental acts reasonably expected by the employer 6. A joint enterprise is like a partnership. Inherently dangerous activities: Finally. and .e.Therefore distinguished from strict liability) . i. INDEPENDENT CONTRACTORS A.can file indemnity clause . a city. ) II.
a car rental company. B drives on the highway. This doctrine is probably now accepted by less than half of American courts. and his negligence should be imputed to Child. IMPUTED CONTRIBUTORY NEGLIGENCE A. D probably cannot recover against O under the auto consent statute. Child runs in the street and is hit by D. Steinle – Mom and daughter get in car wreck on their way to buy a calf. Driver and passenger: For instance.(4) an equal right to a voice in the enterprise. traditionally a driver’s negligence could be imputed to his passenger so as to prevent the passenger from recovering against the driver of another vehicle whose negligence contributed to a collision between the two cars. Non-statutory bailment: If there is no consent statute. Negligence by bailor: But the bailor may be negligent herself in entrusting a potentially dangerous instrument to the bailee. contributory negligence will also be imputed. thus giving me a complete defense.e. 1. but forbids B to drive on the highway. unless a joint enterprise existed between them. drives the truck on Company’s business. Notice that if the state has adopted an auto consent statute. IV. X immediately runs over P. Driver collides with Trucker. Trucker shows that Driver was negligent. and asserts that Driver’s negligence should be imputed to Passenger. most courts would reject it. Modern rule: But in the vast majority of states today. Scope of consent: If the use by the borrower goes clearly beyond the scope of that consent. ") B. Since Company would be vicariously liable for any negligence by Worker in a suit . ) V. "imputed" to B. 1. Traditional rule: The common law recognized the doctrine of "imputed contributory negligence" in many three-party situations. 2. That is. Rental Companies are NOT liable – except: 1. Child negligently smashes into P. therefore. "Father negligently failed to supervise. D knows or should know that X is drunk. states have enacted "automobile consent statutes. Traditionally. Mom is killed. Steinle’s daughter’s calf be characterized as a joint venture with her husband. BAILMENT AND AUTO CONSENT STATUTES A. as described below. who is also negligent. Example: Company owns an expensive truck. but because D was directly negligent in entrusting the instrumentality to a drunk driver. (Example: Passenger rides in a car owned and driven by Driver. because of some relation between A and B. (Example: Father fails to supervise Child. Company sues Driver for damage to the truck. In a state adopting the family purpose doctrine. not because of vicarious liability. EX: Popejoy v. if the relationship is one which would give rise to vicarious liability." which provide that the owner of a car is vicariously liable for any negligence committed by one using the car with the owner’s permission. While en route. P will be able to recover against D. because the driver-passenger relationship is not one in which the passenger would be vicariously liable for the driver’s negligence if the passenger were being sued. Can the trip to pick up Ms. vicariously liable. rents to X. a husband’s negligence was frequently imputed to his wife. Family: Similarly. B’s suit against C might be defeated because of A’s contributory negligence. ) C. and vice versa. contributory negligence will be imputed only if the relationship is one which would make the plaintiff vicariously liable if he were a defendant. Brought suit against Dad/Husband under a joint venture theory. Passenger sues Trucker. "Both ways" rule: Conversely. But today. And a parent’s negligence was imputed to his child. Consent statutes: Many. Traditionally. Family purpose doctrine: The family purpose doctrine provides that a car owner who lets members of her household drive her car for their own personal use has done so in order to further a "family purpose. the family purpose doctrine would not be necessary in this example. where the bailor should know that the latter may use it unsafely. the mere existence of a bailment does not make the bailor vicariously liable for the bailee’s negligence. (Example: O lets B use O’s car. an equal right of control." and is. if negligence can be imputed. Passenger is injured. Worker. ) 1. in most courts contributory negligence is still imputed. Parent will be vicariously liable for Child’s negligence. there is no liability.. who is an employee of Company. he negligently collides with Driver. because B’s use clearly exceeded the scope of O’s consent. D could defend by saying. (Example: Parent lets Child use the car. and injures D. so as to impose vicarious liability on the Defendant’s representatives? Rule: An interest in profit is necessary in order to impose vicarious liability on a party based on a joint venture theory. though not most. this argument would work. ) B. i. (Example: D.
for saying that some of the harm is the result of D1’s act and the remainder is the result of D2’s act – then each will be responsible only for that directly-attributable harm. causing her to lose her arm. If P recovers the full $1 million from D1. D1 is liable for all harm.. In other words. a doctor. if P’s property is burned or otherwise destroyed. P goes to the hospital. Rogers D1 and D2 drag race. each will be liable for injuries directly caused by the other.. so D1 and D2 will each be liable for P’s full damages. she may not recover anything from D2." i. (Example: D1 and D2 each negligently contribute to the starting of a fire.) a. is liable for the entire injuries caused by D1’s collision. P is only entitled to a single satisfaction of her claim. regardless of which of the individuals directly caused the injury) 2. P can recover her entire damages from D1. B. JOINT TORTFEASORS I. but that D2 is liable only for his own. D2 negligently sets the arm. If there is a rational basis for apportionment – that is.) ADD MORE ON JOINT TORTFEASORS . Indivisible harms: Some harms are indivisible (making each co-defendant jointly and severally liable for the entire harm). who pollutes P’s property from 1981-1990. for which the court holds D1 and D2 jointly and severally liable. even though his car was not part of the collision. D1 sells to D2. The court will apportion the damage – neither defendant will have to pay for damage done by the other. and the harm is indivisible. leading to gangrene and then amputation.all may be liable for concurrent negligence." (Example: D1 negligently scratches P. Overlapping: It may be the case that D1 is jointly and severally liable for the harm caused by both her acts and D2’s. This is especially likely where D2’s negligence is in response to D1’s. Fires: Similarly. D1’s car swerves and hits P.) 3. where she is negligently treated by D2. apportionment does not take place. Rules on apportionment: 1. (Example: D1 negligently breaks P’s arm. which then destroys P’s house. each defendant is liable for the entire harm.) 1. Successive injuries: Courts often are able to apportion harm if the harms occurred in successive incidents. because D1 and D2 acted in concert .brought by Driver. a broken arm) is not divisible. separated by substantial periods of time. he’s liable for the difference between a broken and amputated arm. b. If the state follows comparative negligence. though she cannot collect twice. D2 is only liable for the amount by which his negligence worsened the condition – that is. Worker’s contributory negligence will be imputed to Company.g.) C. pollutes P’s property from 19701980. including the amputation. probably Company’s recovery will be reduced by Worker’s comparative fault.e. thus barring Company from recovery from Driver in a contributory negligence jurisdiction. (Example: D1. Joint and several liability generally: If more than one person is a proximate cause of P’s harm. or her entire damages from D2. this will be an indivisible result. owner of a factory. There will be no apportionment. D2. not capable of being apportioned between or among the defendants. JOINT LIABILITY A. One satisfaction only: Even if D1 and D2 are jointly and severally liable. Indivisible versus divisible harms: This rule of joint and several liability applies only where P’s harm is "indivisible. a. (Example: Bierczynski v. Action in concert: If the two defendants can be said to have acted in concert. (Example: P suffers harm of $1 million. Death or single injury: Thus the plaintiff’s death or any single personal injury (e. The liability is said to be "joint and several.
B. Explosives: The use or storage of explosives (see above example) 3.. D uses utmost care. because the cub is a wild animal and the damage resulted from a dangerous propensity typical of lions. (4) the activity is not common. If the dog has never attempted to bite anyone before. he is liable if they do escape and trespass. that they can attack without warning. carries out blasting operations with dynamite. Non-trespass liability: A person is also strictly liable for non-trespass damage done by any "dangerous animal" he keeps. One day. harm even when all the actors exercise reasonable care (if you use a gun w reasonable care –it’s not dangerous) 2.STRICT LIABILITY I. Trespassing animals: In most states. (3) the risk cannot be eliminated by the exercise of reasonable care. (5) the activity is not appropriate for the place where it is carried on. which has never shown any violent tendencies. 1. he is liable for P’s injuries. (2) the harm that results is likely to be serious. Whether the activity creates a foreseeable and highly significant risk of phys. striking P. Even if D used all possible care to prevent the cub from escaping. ANIMALS A. to excavate a foundation. a piece of rock is thrown out of the site during an explosion. Examples: Here are some types of activities that are generally held to be abnormally dangerous: 1. Rylands v. (But most courts do impose strict liability for ground damage from airplane accidents. except that the animal is a dog. D is not liable. ) II. Fletcher . cow. (Example: Same facts as above example. ) 2. This liability is "strict" – even though the owner exercises utmost care to prevent the animals from escaping. Airplane accidents: There usually is not strict liability in suits by passengers for airplane accidents. the plaintiff must show negligence. etc. Example: D. General rule: A person is strictly liable for any damage which occurs while he is conducting an "abnormally dangerous" activity. Blasting is an abnormally dangerous activity. Six factors: Courts consider six factors in determining whether an activity is "abnormally dangerous": (1) there is a high degree of risk of some harm to others. However. as long as the damage results from a "dangerous propensity" that is typical of the species in question. But if D knew or had reason to know that the dog sometimes attacks people. the cub runs out on the street and attacks P. ) C. ABNORMALLY DANGEROUS ACTIVITIES A. do not give rise to strict liability unless the owner knows or has reason to know of the animal’s dangerous characteristics. the owner of livestock or other animals is liable for property damage caused by them if they trespass on another’s land. he would be liable. dog. (Example: D keeps a lion cub. 1. Therefore. Therefore. Requirement of unavoidable danger: Probably the single most important factor is that the activity be one which cannot be carried out safely.ENG 1865 . 3rd restatement advocates 2 element approach: 1. and (6) the danger outweighs the activity’s value to the community. D will be strictly liable for the injury to P. Crop dusting: The conducting of crop dusting or spraying 4. even with the exercise of reasonable care. in a suit by the estate of a passenger against the airline. a construction contractor. Wild animals: A person who keeps a "wild" animal is strictly liable for all damage done by it. Domestic animals: But injuries caused by a "domestic" animal such as a cat. B. pig. in part because it cannot be conducted with guaranteed safety. Nuclear reactor: Operation of a nuclear reactor 2. The activity is not a matter of common usage (guns are OK) 2. a pedestrian on the street.
because P has assumed the risk. an independent contractor. A person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes.can use CN as a defense if: 1. P cannot recover from D in strict liability. whether P acted reasonably or unreasonably in doing so. must keep it in at his peril. .can’t be held liable (engineer) POSSIBLE EXCUSE: o P causes harm o act of God o Natural use of the land III. 1. but to the injured party's unnecessarily 2. Transporting dynamite may be ultra-hazardous. Scope of risk: There is strict liability only for damage which results from the kind of risk that made the activity abnormally dangerous. BUT . ) 1. [Foster v. Synopsis of Rule of Law. (Example: D’s blasting operations frighten female mink owned by P. P understands that dynamite can sometimes explode spontaneously. and perhaps back again during the trial. The injury was attributable not to the keeping of the animal. The trial court found in his favor. If such an accident occurs. Preston Mill Co. the mink kill their young in reaction to their fright. is prima facie answerable for all the damage which is the natural consequence of its escape. This burden is known as the "burden of production. Bushey . LIMITATIONS ON STRICT LIABILITY A. Plaintiff sued in connection with the flooding of his mine. and the truck strikes and kills P. Bushey’s (Defendant). and. D is not strictly liable. this will be a defense. Defendant sought review. if he does not do so. (Example: D operates a truck carrying dynamite. P must come forward with some evidence that P was negligent. VII. RULE: Plaintiffs are not responsible under strict liability theories when the damage caused was an unanticipated act of God. and voluntarily putting himself in a way to be hurt knowing the probable consequences of his act. that D’s negligence proximately caused the injury. negligence in maintaining a dike caused them real estate damage after a hurricane resulted in a flood. this is true whether P acted reasonably or unreasonably. agrees to transport dynamite for D.]) B. Abnormally sensitive activity by plaintiff: A related rule is 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. P must show negligence. so that he may fairly be deemed to have brought the injury upon himself a.Sandy (Plaintiff).Brief Fact Summary. Amory Golden and others (Plaintiffs).AND THAT WOULD BE A DEFENSE IN THIS CONTEXT C. but P’s death has not resulted from the kind of risk that made this activity abnormally dangerous. Defendant knew that the horse had vicious propensities." This is actually two distinct burdens: 1.bad idea? Independent contractor . Rule Contributory negligence is not a bar to recovery for an action in strict liability. Thus if P knowingly and voluntarily subjects herself to the danger. claim that Amory’s (Defendants). AN ASSUMPTION OF RISK ARGUMENT . PROCEDURE IN JURY TRIALS A. that P suffered an injury." This burden shifts from P to D. Example: Sandy v. because P was conducting an abnormally sensitive activity. Burden of production: First. etc. horse. Contributory negligence no defense: Ordinary contributory negligence by P will usually not bar her from strict liability recovery. Acts of God: Golden v.building a reservoir in coal country . Public Policy . Unreasonable assumption of risk: But assumption of risk is a defense to strict liability. (Example: P. was injured when he was kicked by the Defendant. Burden of proof: In a negligence case (as in almost all tort cases) P bears the "burden of proof.
Jury decides facts: The jury is the finder of the facts. Most importantly. B. .) 2. P must convince the jury that it is more probable than not that his injuries are due to D’s negligence. if the judge decides that D drove so fast that no reasonable person could believe that D acted non-negligently. he will direct a verdict. the judge decides whether reasonable people could differ as to what the facts of the case are. (Example: In a car accident case. if they could not. This means that it is the jury that usually decides whether D’s conduct satisfied the "reasonable person" standard. Burden of persuasion: Second. the jury decides: (a) what really happened. and (2) whether D breached his duty to P in a way that proximately caused P’s injuries. Function of judge and jury 1. P bears the "burden of persuasion.2. In a negligence case (assuming that the judge does not direct a full or partial verdict)." This means that as the case goes to the jury. he will take this issue away from the jury by saying that they must find D negligent. Judge decides law: The judge decides all questions of law.