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Negligence Intro I. PFC Unreasonable Conduct Duty Causation o But for cause o Proximate cause Injury II Establishing Principle Brown Gregory Lossee

III. Standards of Care Adams v Bullock Small child was electrocuted while playing with a wire near an electric overhead trolley wire. Court found the burden of prevention was too high (moving wires under ground) and that foreseeability of such an occurance were low so no liability. Also note cost/benefit analysis

Brown v Kendall Partys dogs were fighting defendant began to beat dogs with stick and struck plaintiff in the eye. Trial judge mistakenly placed burden of proof on the defendant to prove extraordinary care when the burden should have been on the plaintiff to prove that the defendant was not in exercise of ordinary care (because the act was necessary) Note this court held that a necessary act the actor should be held to ordinary care but an unessessary act should be held to extraordinary care. Green v Sibley

Lady trips over guy kneeling down to fix register. A busy world dictates that the lady has a duty of care to look for him and foreseeability on his part was low.

Bethel v NY City transit Authority Plaintiff sought relief for injury sustained on city bus due to wheelchair thing. Court held that holding a common carrier to extraordinary care was no longer applicable due to the change in climate of the railroad industry instead held them to reasonable care in relation to the circumstances. Wood v Groh Plaintiff was injured when a 15 year old shot him after taking a gun out of his fathers gun locker Court held that the facts and circumstance of this case warranted a higher standard of care. B. Commentary Harper Holmes II Exemptions o Lesser intelligence Vaughn v Manlove Holding: Court rejected holding someone to a lower standard of care because he was a moron. o Physical Capacity Roberts v ramsbottom Facts: Defendant suffered a stroke and then drove and got in to an accident Holding: anything less than a total loss of consciousness is not a defense for negligence. o Mental illness Bashi v Wodarz

Facts: defendant tried to use mental illness as a defense for injury she caused with car Holding: unless the actor is a child insanity and mental deficiencies are not a defense because we do not know where to draw the line. o Superior ability ????? o Children Gen rule Mastland v Evans Furniture and Ellis v. Dangelo Holding: Children held to reasonable child standard takes in to account age and experience. Adult activity exception Dellwo v pearson Holding: child held to normal standard of care in car accident because driving is an adult activity. Stevens v Veenstra Kid gets in a car accident during drivers ed o Holding: No reasonable kid standard because driving is too dangerous to make the innocent victim bear the cost. Goss v Allen Kid injures someone while he is learning how to ski.

o Holding: Skiing does not qualify as an activity in which children should be held to an adult standard Emergency Doctrine Levey v. DeNardo Guy rear-ends women who stopped short when someone cut her off.

Holding: A person confronting an emergency situation not of their own making is only required to exercise an honest amount of judgment. Cordas Taxi driver injures pedestrian when he jumps out because dude is holding him at gun point. Holding: No negligence on the part of the driver because his actions were in response to an emergency situation

Gender Hassenyer v Mich. Cen. Rail Rd. Co 13 year old girl struck by train Holding: No reasonable girl/women standard only one reasonable person standard. Cost Benefit o I. Approach Carroll towing v United States (Hand Test Barge sunk when there was not an attendant on it Holding: The is a duty of care to protect others from harm when the burden of taking adequate precautions is less than the product of probability of th result of the harm and the magnitude of the harm. Krayenbuhl v Railroad Children hurt playing on a railroad turntable Holding: While social Utitility of having railroads is high, all they needed to do was install a cheap-ass lock and kid wouldnt have gotten hurt.

Posner II. Modification o Bolton v Stone Dude gets hit in the head with cricket ball

No recovery because their was such a low chance of this happening that it was not necessary to put up signs or fence. o McCarty V Phesant Run (posner) Women is assaulted in her hotel room when the door is left unlocked. Hand formula has greater analytic than operational significance and in this case there was not enough to define the variables of the hand formula III Rejection o Grimshaw Ford Pinto case Even though cost of prevention was higher than the precieved loss the hand approach does not apply when the loss would be that of life and limb. Note: punitive damages were reduced IV Allocation Distribution Custom Intro: Custom and C/B I Plaintiffs Use Morris 3 main points of custom in negligence theory If an industry adheres to one way of doing things the court may be wary of the plantiffs assertion that here is a safer way of doing things, The fact that something is not widely use may be evidence that the D was not unreasonable for not knowing about it. The existence of a custom that involves large fixed costs it may warn the court of the social utility of changing that custom Trimarco: P injured when fell through glass shower enclosure and attempted to show that it was custom to use shatterproof glass. Evidence of custom is admissible as evidence of reasonable conduct but not definitive test of negligence Levine

P cut her hand while operating a dumb waiter and said that the building did not adhere to the custom of using smooth ropes The court held that if she could prove the custom of using smooth ropes was to prevent injuries like this she could recover II. Defendants use Morris Vermont Motor: P fell during a power outage and said that hotel should have had battery operated light fixtrues No recovery because no ther hotel used them and the foreseeability of such an injury was low Delta P injured on baggage carousel and tried to bring in a mechanical engineer as expert witness. He is admissible as expert witness because it is likely that all experts about baggage carousels would work for the airline.

III Medical Malpractice General: Custom= conclusive evidence of reasonable conduct Robbins: o No finding of negligence without expert testimony Difranco: Court overturned a verdict for the defendant because the judge charged the jury that the Dr was not negligent if in the exercise of good judgment and made mistake B. Expert Sheeley v Memorial hospital o P injured after episiotomy performed by a second year family medicine resident o D only under duty to adhere to what a reasonable practitioner in their class would..Expert testimony of a practicing obstrecian not admissible. Arpin v United Sates

o P presented himself at family medical practice after he fell due to extreme pain alleged that second year resident. failed to run a test that would have revelaed rare muscle disease. o Resident held to same standard as someone who has finshed residency Board Certified o Robbins If a physician holds himself out as a specialist they are held to the standard of care for that specialty. Henning o Allowed for payments to be made for expert witnesses and for the jury to decide the weight given to the testimony of these witnesses Clinical Practice o Sami v Varn Some states hold that an expert must have an active practice in the defendants specialty or related field. o Dawson School of thought o Gala Where there are two schools of thought about a what treatment to use a Dr. can pick either one Exceptions o Treatise: Instead of expert testimony medical treatise can be read Common Knowledge

o Leonard: Dr. Left instrument inside patient Common knowledge that you should leave shit inside patient so no expert necessary. Negligence per se I basics Ret 3d 14 Hertzog:

o Defendant hit wagon on side of the road on a dark night. Negligence is charged against the plaintiff for not having a light on the wagon and the defendant for not staying within the boundries of the road. o The failure to not use lights (against a statute) can be negligence in itself but is insufficient to sustain a claim of contributory negligence unless there is a causal connection Clinkscales o Defendant ran a stop sign causing injury to the plaintiff. Defendant did not recive a criminal charge because the stop sign was not properly recorded in the public record. o A lack of criminal charge does not preclude civil liability Sweet o The trial judge retains the discretion to refuse to adopt the law as the standard of care. Dehaen v rockwood sprinklet o Radiator was struck and fell down hoistway which was not constructed in accordance with a statute. o No negligence per se for hoistway because the statute was meant to protect against people falling down the shaft not things but you can look to legislative intent enumeration of hazards to be protected against. Diponzio o Defendant left car running at a gas station which is against an ordinance to protect against fires, the car rolled backwards and injured plaintiff, o Violation of ordinance irrelaevent Rushink o Defendant parked and left car running and it was stolen and thief injured someone. P moved for summery judgment pursuant to statute prohibiting leaving keys in ignition. o Majority concluded that statute was not purposed to absolve unauthorized users from liability Gorris


o Sheep fell out of pen on boat. o No NPS for statute in infectious disease act that mandated animals be kept in pens because not the specific kind of harm. III Justification A Rst.3d 15 Tedla o Two junk collectors were walking down the side of a highway and were hit. Drivier claimed contributory negligence because they were walking on the wrong side of the rd according to statute. o It was more dangerous for them to walk on the other side of the road.. It is not NPS if in disobeying the statute a person is attempting to avoid the danger that the statute is trying to avoid. Levey o P claimed D violated statute about distance you should be behind the car in front of you when she got cut off and he rearended her. o The statute was not meant to hold the driver to adhere to it in every possible situation so no NPS. Bassey o Vehicle came to a stop on a highway due to an electrical malfunction..P cited statute about keeping disabled cars on a highway illuminated o Judge allowed the fact that their was no chance to turn on lights as an excuse no NPS.

IV Conclusion Licensing: o Brown Chiropractor injured P when undertook a procedure that only physicians were supposed to perform Court held that the Chiropractor should be held to the standard of care of a Dr. but not to charge the jury with the statutory violaton

Custom Statute o Robinson Guy was hit by police van while j-walking. Court did not allow that it was common practice to j-walk as an excuse for the contributory negligence claim. Common law v statute o Edwards: Guy had a nicotine induced heart attack while wearing two nicotine patches. Company citing FDA package warning regulations as his basis for defense of negligence. Court allowed for recovery saying that the compliance with a statute does not necessarily absolve one from liability. Hubbard hall o Two migrant farm workers killed due to pesticide exposure o Court allowed for recovery even though warningings on he product adhered to congressional regulations becaue manufacturer should have known people who didnt speack English would use the product. Alverado o P was burned when robe caught on fire. o Court held that adherence to regulatory standard was not conclusive evidence of reasonable conduct.

Res Ipsa Loquitur I General -rst.3d 17 byrne o A barrel of flour fell on P from an open window of Ds warehouse. There was no evidence presented of negligence on the part of the defendant. o Placed burden of proof on defendant to prove that he was not negligent. B. Bierman:


Production burden on city and utility co. o Remember loss spreading

II Multiple Ds CAUSAL UNCERTAINTITY Unknown Instrument Yabarra Guy injured after surgery but does not know the instrumentality Allowed to bring in all of the people who may have been responsible and places production burden on them. o Instrument in control of D o Harm can not ordinarily arise without negligence o No negligence on part of P Judson (rebuttal) Ds nitroglycerin plant blew up killing everyone who could have testified to negligence. Explosion alone was enough to survive summary judgment/ 12b6 Ybarra Limits Hospital: Yabarra purposefully limited to hospital context Insufficient D Pool Black Defendant surgeon implanted a wire in the neck of plaintiff which broke and caused great pain and need for further treatment RIL not applicable because there were other possible causes of the defect that could not be brought before the court chin P died from air embolism due to gas being introduced to her blood stream. Court held that burden switch was proper even though one of the ds had been absolved of liability. Barrett (rejection) Modern discovery practices make yabarra analysis necessary o Non-hospital Firemans

o Plaintiff insurance co sued four ds for hotel fire because one of the was smoking o Rejecting to extend yabarra court held that RIL did not apply and granted sum judgment for Ds. o Fowler/helton Cause In Fact I. But for Best Rinaldo v. McGovern o Guy gets hit with golf ball claims negligence because golfer didnt yell fore. o Court found that even if he had yelled fore it would have been futile. Tollison v. State of Washington o Adoptive parents suded because state agency failed to disclose issues with the child o Claim failed because the family said that they would have adopted the child anyway Grimstad v NY Cent Rail Rd o Guy fell off barge..couldnt swim..drowned negligence claim

based on failure to have life preservers. o Court held that even if there was a life preserver he still would have drownedno recovery II Basic Proof Issues Mitchell v Pearson Enterprises o Man was murdered in building made negligence claim against building for faulty security. o With no proof that it wasnt someone who lived in the building or one of their guests there could not be a causal connection for a jury. Burgos v Aqueduct reality o Sued landlord over assault in building saying it was an intruder. o Court allowed the jury to make logical infrences because the women said she did not recognize the assailient III Complex (type II) Proof Issues

Analysis Does Agent cause Harm? (II(a)) Were ps injury caused by harm? Causes Stubbs v City of Rochester P contracted typhoid fever alleged it was from the water supply citing the increase of cases in the area In a negligence action the fact that a plaintiffs condition could have been caused by factors other than the defendants negligence does not obligate the plaintiff to proe none of the other factors caused the injury. Allen v United States Radioactive fallout in Nevada case In causal uncertaintity case can look to facual connection to shift burden of proof to the defendant o 1) Defendant engaged in risk creating activity o 2) Plaintiffs injuries are consistent wit hthe harm that results from that acivity Planitiff was exposed to the fallout Injury consistent with type of radiation Geographical proximity Extent of time they were exposed

Future Harms Simmons o P recovers for exposure and then again if disease manifests Dillon o P can recover for chance of further harm but damages should reflect that chance. IV Policy Rabin (toxic Torts ) Tort of Negligence 1 Unreasonable conduct Res Ipsa Loquitor (assume Causation) 2 Causation

In fact Proximate cause

Type II (continued ) I Reasonable Medical Certainty Zuchowicz (calabresi) Guy sued Govt for prescribing him too much of a medication which caused him primary pulmonary hypertension Where a negligent act increases the chances that a particular type of accident would occur and such an accident does occur a court may conclude that the negligent act caused the harm. Limits: Williams o College student sexually assaulted and sues college saying proper security would have prevented it. o 3 factors bear on whether a plaintiff can prove causal linkage circumstantial evidence the relative ability of the parties to obtain evidence concerns about errors favoring either party

Non Medical o Wolf/Hinman Tenant injured in stairwell sues landlord for dangerous conditions Supreme court concluded that it was a reasonable inference that the stairs were dangerous and reinstated a jury verdict for the tenant. II Loss of (x less than or equal to 50%) Matsyama o Ps primary care doc failed to order tests that would have revealed that he had gastric cancer sues for wrongful death and loss of chance which was determined to be 37.5& o When a physicians negligence reduces or eliminates the patients prospects for a more favorable outcome the physician is liable for damages regardless of how low the chance is

Ie. Full wrongful death award of $100 Loss of chance 50% Award of $50 Note: limited to malpractice cases and pertins to injury not causation.

Non-medical o Hardy (No) Refuses to extend loss of chance to 911 operator. Necessity of event o Alberts Greater than 50% (No) Dehanes v rothman o If loss of chance is greater than 50% award 100% of the damages Employment Guy would have had a 25% chance of getting job but for negligence and should be able to recover 75% of damages. Rejection : Fennell o Court refused to adopt loss of chance in a case because of difficulties in dealing with statistics and fairness concerns. III Politics. Malone DES CASES Hymowitz o Idea of Market share liability o Dissent: market share liability with Ds chance to exculpate themselves o o o o o o o DES policy choices Market share (how to define Joint and several? Exculpation Inflation Your speed caused the kid to jump out in front of the car

o Friend is invited to dog sit.. negligently did not cover a hole in a escapedfriend slips o o Basic policy issue: how do we balance responsibility of liability Prox. Cause Intro: I Intro Ventricelli P rented a car with a defective trunk and pulled over to fix it and was hit sued rental car company No recovery because injury was divorced from the type of harm that was reasonably foreseeable from the negligene Berry Tree fell on trolley that was speeding Speeding did not cause tree to fall so no recovery II. Direct Consequences Polemis (type) Plank negligently is allowed to fall and creates a spark that blows up a ship The fact that the type of damage that a negligent act causes is not the type that was reasonably anticipated is immaterial. Smith (extent) During a dry summer a spark from a train burned down a cottage. Extent of damage immaterial (Still good law) III. Foreseeability current rule wagon mound ps dock was destroyed when oil from ds ship leaked out Even when a negligent act may result in injury, liability for that injury is limited to the risk reasonably foreseen.

I and II Palsgraf o P injured when a servant of the RR helped a passenger aboard who dropped a package full of explosives

o When a negligent act results in injury to another but the risk of harm to the injured person was not reasonably foreseeable consequence of the negligent act no duty of care exists to the injured person Cardozo Duty Andrews o Cardozo holding too narrow to limit negligence only to cases where there is a duty. A person owes a duty of care to society at large and must be responsible for the prox cause of their actions III. Recurring Contexts A. Rescue Wagner v. Intl Railway Co. o P injured while trying to rescue cousin who fell from train due to Ds negligence. o Cardozo says that danger invites rescue: nonprofessional emergency rescuer entitled to recover due to Ds negligence. Moore v. Shah o P donated kidney to father who neeeded due to Ds alleged malpractice. o P s action was deliberate and reflective. ( not spontaneous) and court refused to place duty on D.

B. N.Y. Fire Rule: Ryan v. NY Central R. Co. o Ds negligently mainatined engine ignited sparks which hit one building and fire spread to Ps buildimg. o Court held that Fires spread was not necessary or usual result of D s negligence, but is accidental and varying circumstance. Policy purpose of insurance is to protect against loss one is exposed to as a memberof society. To hold owner liable for his loss and neighbors loss would be destructive to civilized society.

(There is liability insurance now, though)

3. Criminal conduct: Hines v. Garrett Train improperky took woman past her stop. Conductor tld her to walk back through what he knew was a bad neighborhood. She was raped. intervening conduct did not insulate RR from liability. D. Suicide Fuller v. Preis o P kiled himself after being severely injured in accident, wife being paralyzed by polio and mother contracting cancer. Court increasingly willing to allow recovery where Ds negligence so injures person they commit suicide. o Court held that irresistible impulse does not necessarily mean sudden impulse. IV. Special Rules

The EGGSHELL SULL RULE D takes P as he/she finds him/her, but injures P way beyond foreseeability, D is liable for all harm. Kinsman Doctrine (CB, 378) : Kinsmans crew omission let ice jams hit his boat, Ship A, which turned loose and hit Ship B, tearing B loose, both ships travelled down the river and crashed into bridge and forming ice jam causing flooding.) City negligent (Closed bridge). Dock owner negligent for loose mooring. Kinsman negligent. EggSHELL SKULL applied. Liability will not be limited by unforeseeability of exact developments and harm whe damages result from negligence with foreseeable consequences. COST SPREADING., lessen social

Kinsman II (CB, 380) : Other ships business interrupted due to jam and use for damages , TOO REMOTE(upheld Andrews dissent)

Duty I Intro PFC Approach II Privity McPherson Cardozo concluded that a car manufacturer owed a duty to someone who purchased the car from a dealer o Beause it is a thing of danger o And is likely to be used by someone other than the purchaser (dealer) without new tests. o III. Duty to Rescue General Harper Kid Dives off boat and is paralyzed Boat owner who is a social host owes no duty to warn guest water si too shallow if the guest is neither o Particularly vulnerable (child, impared) o Nor lacks the ability to protect themselves. NOTE Special Relationship does not exist

Liberty Exceptions Non-negligent injury Maldonado P tried to board a freight train and fell off and was injured and that Ds employees knew of his plight aand did nothing Court upheld a ds duty to rescue refer to 322 below

Rst 322- If an actor knows or has reason to know that by his conduct (tortious or not) someone else has been injured there is a duty of reasonable care to prevent further harm, Non Negligent Risk Simmonsen Defendant knocked over a utility pole and drove on D has an affirmative duty to remove the hazard or warn to warn others. Tresmer o Doctor did not warn patient that a device implanted in her was defective when the defect became known to him after the procedure. o Court upheld a duty to warn Menu Reliance Mixon Guy hits median and car is disabled in road injured guy who hits it tries to sue taxi driver who picked him up. No duty to warn about hazards you do not cause

Husband informs restaurant where he worked that his wife was preganant and that she may call for a ride to the hospital. Manager promised to let him know.. He didnt . Court held that the promise triggered a change in behavior and therefore there was a duty owed Relationship Farwell Guy gets the shit kicked out of him and other guy just leaves him Social venture is a special relationship that imposes a duty and a partical rescue can impose a duty. Ronald Bjerke Kid was driving around with a bunch of fuckups who were drinking and doing drugs. No duty for kid to restrain the driver from doing so D owned a stable and minor ps resided for long periods of time and told the ps parents he would look after them..Long story short their


daughter has a sexual relationship with the defendants live in boyfriend Court recognized this as a special relationship and upheld that a duty was owed. Defendant insurance co carried out yearly inspections of a facility. Plaintiff was injured on the premises and sued saying the inspections was negligent. No duty because the purpose of the inspection was for under writing purposes

Partial issue Rst 324 Medical Hurley P sues D (doctor) for refusing to make house call. Unless D is in the employ of P there is no duty here (NO LONGER GOOD LAW). Childs D doesnt treat women going in to labor in ER tells her to go to her primary care physician. No duty; duty must flow from relationship with the plaintiff Reed and draper Moch Case Ps warehouse caught fire..sued water co saying that an adequate supply of water would have stopped the fire from spreading No duty denile of benefit not commission of a wrong Adams Premises Liability I Review Memo II. General Conditions Carter D hosts bible study and guy slips and is injured P was a licensee and homeowner only has duty to protect him from known dangerous conditions\

o Licensee because not giving home owner any tangible benefit by being there Heins Guy slips and falls outside of a hospital of which he was not a patient or conducting any business with. Abolishes the distinction between licensees and places a duty on owners and occupiers to exercise reasonable care of their premises o Reasonable care test Foreseeability of possible harm Carter Activity Britt P was using Ds autotorium for a sales presentation and an agent of d dropped a piano on her foot. Court refused to adopt a difference between active and passive negligence and dismissed the case Bowers Social guest burned during preparation of flaming irish coffee Court held that when a licensee is injured by an affirmative act by the occupier there is a duty of reasonable care Rst 341 Open and Obvious Mcintosh Got rid of no duty to warn of open and obvious dangers because you could just use contributory negligence Outside Premises The purpose for which the entrant entered the premises The time manner and circumstances for which the entrant entered the premises The use to which the premises is put or expected to be put The reasonableness of inspection and warning The opportunity and ease of reapir The burden on the land occupier

Modern tort jurisprudence has gotten rid of outside inside distinctions. Review Memo II Vitim outside premises Activity on land that injures victim outside premises Owe duty to injured Conditions Artificial Vs Natural conditions Artifical=duty of reaspnable care Natural no duty of reasonable care Tree exception-act reasonable with the likelihood that trees on your property will injure someone. Modern trend is to do away with distinction between external and internal people Context Children -> attractive nusience Rst 339 Business Liability (security General Wal-mart Women is robbed outside of a wal-mart in Louisiana Duty to protect customers from criminal acts of third parties arises out of a balancing test between the foreseeability of the criminal act and the burden of preventing it. o Concurrence said should use totality of circumstances test Takes into account number, nature and location of similar incidences in the area. Sharron Women assaulted in parking garage Only one similar incident so no duty to provide protection Williams No duty of care owed to customer who was injured during a robbery Resisting KFC

Cashier did not comply with demands of robber and customer was taken hostage but not physically hurt. Court held that there was a duty if it was foreseeable that the customer would be injured if the cashier refused If faced with a premises liability test question do analysis under heins and old status distinctions. Government Duty I Tort/State Police Riss (general) P was terrorized by old boyfriend and requested police unsuccessfully. After she became engaged to another man her boyfriend hired someone to throw lye in her face. Govt under no duty to provide special protection because of resource allocation. Schuster (Informent) P was an informant and requested protection didnt get it then was killed. Police actively sought his help so therefore there was a duty to protect him. Sorichetti (protective order) Scumbag father beat the bag out of his kidthey got a protective order. Duty flows from the protective order Florence (undertaking) Cuffy Test Assumption that the municipality will act Knowledge on the part of the municipalities agents that inaction could lead to Harm. Some sort of direct contact between the municipalities agents and the injured party Parties justifiable reliance on the municipalities undertaking Mastroianni (protective order)

Guy stabs his wife after police officers had been at the house because he was in violation of a protective order..But they let him stay First two Cuffy elements were met by the protective order and the last two by the officers contact wit hthe victim and their promise to do whatever they could

Public x-portation Weiner (general) No duty for transit authority to protect custoemrs from attack unless special relationship exists. Crossland (witness Defendant transit authority employee witnessed attack and did nothing. Duty to summon help Clinger P Raped behind construction materials Court refused to impose liability on govt either for placing the material there or not providing more police protection. 911 Calls Delong Merced Injured party must prove that they had direct contact with the municipalities agents and justifiably relied to his or her detriment that the municipality would respond Muthukumarana No duty when someone else called the police to relay information about a person in need of assiatance. School Safety Hoyem Kid ran away from school and was hit my motorcycle School owes duty of care in supervising children Pratt Kid hit by truck after be let off of the school bus

No duty because the child was left at a designated stop where the duty ended.

Services Peter W Duty of saftey not extended to teachingbecause no standards of care could be developed General Services Lauer (discretional v Ministerial) P claimed city death examiner was negligent for failing to report a finding that would have absolved him of charges that he murderd his son To sustain a liability claim against a municipality the duty breached must be more than is owed to the public generally o Unless statute says it is in place for a particular purpose duty can not flow from it. (public duty) Clerical error caused a defendant to be let free and he raped the plaintiff. Defendants motion to dismiss was rejected because of FTCA

Jean W.

was inconsistent public duty limitations on recovery Judges and prosecutors Absolute immunity for judges and prosecutors Falls II Federal Immunity TTCA Cope Guy injured when driving through a road in a park in DC claimed it was negligently maintained. Discretionary judgements that are not fraught with public policy concerns are not immune from suit. Whisnant Every claim would have some policy implications Cestonaro Federal Rights Castle Rock

Mother made 14th amendment claim when police failed to intervene on a protection from abuse order To be successful on the claim plaintiff needed to prove that she was deprived of property rights. Court denied that mother had such an interest Deshaney There is no affirmative duty on the part of the state to intervene and protect individuals from invasion by other private parties. Direct emotional injury I General (including Physical) A. Mitchell (touching) Team of horses ran out of control and almost hit P who soon after had a miscarriage. Court held that there was an impact requirement. B. Falzone Womans husband is hit in an auto accident she was afraid for HER life and suffered P can recover for emotional injury if o Within zone of danger o Physical manifestation of the injury o Injury would constitute a cause of action if it was through physical impact C. Limitations Humana False positive HIV test Upheld physical impact requirement Wooden Allowed for emotional distress recovery when ds car almost hit P Lawson Not following wooden for fear an airplane would crash on them (fear would have been short lived) beynon(physical peril)

Skid marks allowed for inference that near car sccident victim went through an unusually disturbing experience

II, Impending Death Airline Quill/ Unusually disturbing experience of thinking the plane you are on is about to crash B Mcdonnell. Guy on otherside of plane denied recovery because he couldnt see the engine wasnt working

Non air Beynon Skid marks allowed for inference that near car accident victim went through an unusually disturbing experience III Solely Emotional Metro North P exposed to asbestos and says he suffers emotional distress for fear of illness No recovery until the desiease manifests o Immediate risk of physical harm requirement Gammon Place sent bones instead of personal effecs of deceased father. One may recover for negligent infliction of psychic distress not accompanied by physical injury o CORPSE exception NOT EQUTING PHYSICAL TO EMOTIONAL INJURY Hiv Cases Williams Plaintiff trash collector is stuck by a needle Court rejected requirement of actual exposure to HIV in favor of what a reasonable well-informed citizen would think o To determine reasonably well informed citizen consider Have findings that something is of no risk to the public been published?

Are they accepted by the general public? Do significant pockets of the public remain unconvinced. Even if the vast majority of the public is convinced a jury could still find that the Plaintiff was not.

Chizmar Patient is wrongfully informed that she is HIV positive Court upheld NIED claim Baker False positive test reporting Ties this to false reporting of death of a loved one Fact and circumstance are so traumatic that report would lead to emotional distress I Intro: Direct/indirect Carey Some courts hold father as bystander buring child birth cases burgess Mother is not a direct victim but also not a bystander in child labor injuries to newborn Broadnax Mother can recover for emotional distress for miscarriage and still birth Sheppard Injury to child but child survivesNo claim for the mother because broadnax was intended to provide a cause of action where no other was available (dead child has no claim, alive oen does). Huggins Plaintiffs parents followed incorrect label that was negligently placed on childs medicine bottle Since the child was not permanently injured no recovery for emotional distress of parents II zone of danger Tobon

Family and zone of danger requirement for recover Must be serious emotional distress by observing severe emotional injury or death Bovsun test 1. Relationship 2. Zone of danger 3. Severe Emotional distress 4. Severe direct victim injury Johnson Kid abducted from hospital No recovery upheld zone of danger requirement Kalina-jewish circumcision distinguished using Johnson (custodial interest) not religious sensabilities Remember reasonable religious observer III. Dillon/Portee-relaxation or zone of danger Portee Plaintiff witnessed long violent death of her son in a malfunctioning elevator. A person may sue for emotional distress cause by injuries to another person o Dillon/portee test Proximity to accident Observed the accident Relationship to the victim Direct victim injury Thing mother rushed to scene of childs accident Location and observation test in Dillon Sensory perception has to be direct as the injury occurs Proximity Scherer Hotel fire saw it on TV knew husband was there but never saw husband on TV NO SENSORY PERCEPTION NO RECOVERY Mavzolf Relatives rushed to the scene of accident

Court upheld NIED claim because victims condition worsened drastically from the time they arrived Serious Injury Direct victim Barnhill Mother in car accident behind p and was only slightly injured. Proper test whether a reasonable person would believe and the p did believe that his mother would be seriously injured Barnes Mother thought that her child was injured in an accident and it turns out not to be her kid. Mother dies from emotional trauma NO RECOVERY to much liability for the tortfeaser dont want to expand circle of liability Indirect victim Sullivan Two plaintiffs stood across the street and watched their house burn down Cant recover for loss of property and vomiting isnt enough of a physical symptoms of emotional distress Lubner P sued for NIED when trash truck crashed into their house and destroyed art work NO recovery for emotional injury due to property damage. Hawaii (foreseeability) Rodrigues (lubier) o Hawaii allows for recovery for emotional distress due to loss of property if a reasonable person would be unable to adequately cope with the loss of property. Campbell/roman o Allowed NIED recovery for death of pets Doe parents Court allows for claim for emotional distress of parents with children who were molested by a school teacher without proving physical injury to the children V. Relationship Indirect victim

Elden None married couple denied relief Dunphy Possible recovery for people in a non-married relationship Test delving into the nature of the relationship. o Length of relationship o Degree of mutual dependence o The extent of common contributions of life together o Are they members of the same household Consortium Physical or emotional injury to direct victim has caused the loss of companionship to another. Direct History Only men used to be able to consortium claims or any tort law claim Modern Rules Allows loss of consortium due to emotional injury Parent child Some courts allow loss of consortium claims for children due to loss of parent some do not Contributory/compar. Negligence Responsible for contributory negl I Contributory Negligence (minority/exam) EXAM QUESTION WILL BE A CONTRIBUTORY NEGL JURISDICTION Victim culpability: if at all at fault then no recovery. Doctrinally limit the rule: Exceptions Activity Rescuer: o Judges would throw the contributory negl element to the jury who would overlook it and find for the rescuer. Statute Chianini : No contributory negl for school children crossing the street after getting off the bus because of statute requiring drivers to instruct children in crossing the street. fiesthamel

Court reduced recovery for young girl who ran into a revolving door finding that the statute was not made with the purpose was not made to protect any specific class of people

Reckless activity: Willfull misconduct but do not intend consequences No contributory negl if the defendant is reckless or willfull misconduct. Think drunk driver speeding and dude walking outside the crosswalk Last clear chance Davies v Mann Defendant ran into a donkey that the Plaintiff had carelessly left tied in the roadway Defendant has last clear chance to avoid injury so no contributory negligence. Plaintiff is unaware that e accident is going to occur. Imputation (No) Continental Auto lease v Campbell Two cars negl in accident and rental car co goes after other driver..Cant do it Why Lack of relationship Would leave innocent victims uncompensated Employeremployeevictim Employee is negligentemployer has the $$ Employer responsible for negligence but not employees contributory negligence Jury Jury would usually ignore contributory negl and just reduce damages effectively making a comparative negligence standard. II Comp Neg (majority Pure X=% of Ps fault=60% X= injury damages 1,000 Y=others are 40% at fault Plaintiff gets 40% of the compensation

Modified X<50% not as great as X<= 50% no greater than III. Avoidable consequences Hall v Dumitru No duty to undergo evasive medical procedure (including surgeries) if the risk of the surgery is too high. Munn v Algee Religious beliefs would not justify the refusal to mitigate injury through medical attention Assumption of risk Elements Knowledge of risk Appreciate the danger Voluntary I. Definitions Express-Written in contract Implied Primary Secondary II. History Weinstein Rablin III. Express General: Hanks Snowtubing waiver ok for reasonable person but against public policy so not enforceable o Hyson: must expressly say the release from NEGLIGENCE Public policy analysis Tort policy purposes Tunkl test Business type suitable for public regulation Service of great importance to the public

Willing to perform the service to anyone Bargaining advantage for the party seeking exculpation because of necessary nature of service No stipulation where the contract signer can pay more for negl protection Purchaser placed under control of seller Virginia-no contracts that exculpate negligence They use totality of circumstances (Maryland and Vermont). Parents Anti Waiver Galloway Parents waiver of liability for kids are per se invalid. Hojnowski Kid fractures femur and parental waiver didnt count Diallo Pro-waiver Zivich Waiver parents sign for kid also bar parental tort action against soccer league Sharon Upheld parential waiver signed by parents because of the increased cost of not having waivers King Spousal: Huber Intermediate agreements iV. Implicit Dangerous Activity Murphy (Cardozo) Name of ride is flopper and dude got flopped Distinguish tantillo o No witness of the activity before they were flopped Sports participation Knight Touch football game douche injures some girl after she told him to settle down

NO recovery because D owed no duty to P and did not intentionally injure and was not reckless Vigorous participation Lestina (negl Established a duty of reasonable conduct to the plaintiff within the games parameters.. ie establishes reasonableness in accord with what is foreseeable inside of the fact and circumstances Crawn (flood) Cant have sport liability because of flood of litigation it would induce Spectators Davidoff Girl hit with Baseball at game no recovery because of assumption of risk of sitting on the first base line.. Didnt wnt ot encourage cost spreading Primary implied assumption of rick because you should know baseballs are going to be flying around Legislation Illinois enacts legislation to limit liability to keep ticket prices down Comp negl Davenport Stairs are poorly lit and the dude fell but had two other options and he knew and had already complained about the lights. Primary implied assumption of risk does not fit doctrinally with contributory negligence as it is not an affirmative defense it is a defense against the Ds duty owed Boddie This is a secondary implied assumption of risk because there is nothing inherently dangerous about walking down stairs

Guy working on house tries to help owner when she starts a grease fire and catches on fire him self d claimed assumption of risk Court said no assumption no assumption of risk for rescue Gonzolez

Drunk Driving case d claimed dude knew he was cocked and should have idea of dangers Secondary implied assumption of risk; court uses comparitve negl

Mcgrath Gets rid of assumption of risk Goepfest/maldoun Different than davenport maintain absolute defense of assumption of risk INTENTIONAL TORTS Assault and battery I PFC II Definitions Battery Offensive Assault : Legal protected intrest is freedom of fear Apprehension Intent : only intent to make the offensive contact III. Intent Garrett 5 year old pulls chair out from under a person Remanded to determine if the kid knew she was about to sit Offensive Objective standard Vocburg o Kid playfully kicks other kid in knee and he ends up getting seriously injured o Battery because kid intended to make offensive contact. Barbara A o Chick gets pregnant after guy tells her that he is firing blanks o Court upheld that this was offensive touching Extension

Doctrine Picard D touches Ps camera Camera was in her hand (extension of her body) so battery and she was scared so assault Fisher D grabbed plate out of ps hand Plate extension so battery Cultural Meaning Alcorn D spat on p infront of court house Court awarded punitive damages

Consent and self defense Courts usually allow for consent to battery as a defense Issues when there is anger involved Fist Fight Hart o Prize fight context so allows for consent o Majority rule: No consent to unlawful activity (actual fist fight) Pro football Hackbert o Intentional damage and injury to others is outside of the implied assumption of risk in playing football Self-defense Mistake o Raymond Domestic Violence o Kelly Property o Katco Spring gun case Cant use lethal force to defend property Spring guns only to prevent felonies of violence o Ploof.

P moors boat on private island during storm D cuts him loose D liable for damages because of private necessity o Vincent D Boat tied to dock doesnt leave during the storm and damages the dock Boat owner liable for damages to dock but only compensatory damages Intentional Infliction of emotional distress Elements (note not an assault because not in fear of personhood but really bums them out) Intentional or Reckless Extreme and outrageous vs. Mere Causation Severe emotional distress Compensatory damagespain and suffering Punitive damages Punish defendant Policy Worried about flood of litigation Worried about fraud and speculation Tough cookies Bartow Dude calls pregnant women a god damn son of a bitch and a dirty crook No right to recover for bad manners (with no physical contact). Sitznoff Guy gets harassed for not paying notes to garbage Court allowed damages even without assault (no direct threat, but coercion) sopranos waste mgmt. shit needs to be something more than verbal Rst 46

Non racial Agis: o Howard Johnsons case chick gets fired because her name begins with an A o Must be severe emotional distress in order to recover Womack: o Guy takes picture of guy and he begins to be associated with a didler but he didnt know the dude o Position of being placed in a child molester context should have known that shit would upset his guy Not merely verbal must have some conduct: conduct here is bringing the guy into court

Racial wigs : o Restaurant no scallops case o Allowed for compensatory and punitive damages for interruption of vacation and act itself o (rst 48): must be a gross insult lower threshold than extreme and outrageous o Wiggs under 48 because of innkeeper and common carrier o Child exposed to coarse of language: dont use bad language in front of kids. o Damages: 25,000 was excessive, would entice a flood of litigation Irving: o Guy returns stuff guy writes racially insensitive comment on return slip

o No recovery under constitutional prevision (no negligence per se) o Conduct not severe enough to constitute Intentional infliction of emotional distress claim (not extreme and outrageous) Employment Alcorn: o Guy gets yelled at racially and guy gets fired

o Claim allowed to proceed because employment status changed Patterson: o guy racially harassed at work o No claim under 1981 because employment situation did not change o Fed tittle VII: prohibits an employer from discriminating in employment situations Bolden : o Plaintiff worked in a shop where people gave each other shit.. They made two racially charged comments o No claim because two did not signify a steady barrage Walmart : o white chick fired for dating a balck dude o Works as a title 7 claim because she was fired

sexual orientation Logan: o Gay guy hears the guy say he is as queer as a 3 dollar bill Didnt intend for logan to hear the comment (probably could of disposed of it like this) Held that claim was merely insulting and not extreme or outrageous.. Extreme and outrageous is defined as intolerable to civilized society to a reasonable person of ordinary senceabilities. Term queer is not defamatory in the common vernacular. Sex harassment Russo : Forklift 340 Hang up phone calls Didnt say anything so no intentional infliction Rabaduc is too limiting ellis too permissive Sets the abusive work place standard as requires the conduct to cause a tangible Hostile work place Serous tangible psychological injury (rabiduc) High threshold

o Reasonable women standard ( Ellison ) o Lower threshold perspective Clark county Simple teasing and off-handed comments do not amount to a title 7 violation Dunning Plaintiff complained of sexual harassment and was subsequently placed on unpaid maternity leave Court awarded plaintiff back pay and attorney fees although it made no finding of sexual harassment Kanzler Oncule Police dispatcher stalked NO title 7 because guy wasnt her supervirsor or employer

Guy sexually harassed while working on oil platform Supreme court held that same-sex sexual harassment was actionable under title 7 Grivelber Extreme and outrageous is too subjective Traditional SL I England Rylands Fletcher is tenant mining coal and the mine is flooded by a reservoir that was created by rylands Rylands is strictly liable Rylands (house of lords) Rylands strictly liable because of non-natural uses II. American Scene Losee/ Brown Losee: we all benefit from use of land so no strict liability Turner

Rejected to rylands because it was in TX and they need to store water for livestock industry. (cattle raising=natural use)

Blasting.. Sullivan Guy gets killed from shrapnel from other dude blasting huge tree. BLASTING=SL (distinguished from losee because explosion was voluntary) Citites : Court applied rylandsshows shit towards environmental protection Exam use restatement formulation p. 520 (rest 2d) Abnormally dangerous activity test High degree of risk High likelihood the harm that results will be great Inability to eliminate the risk through reasonable care Extent to which the activity is not common usage Inappropriateness of the activity to the place where it is carried out Extent to which it is a valued to the community is outweighed by its risk Indiana Harbor Train car full of toxic chemicals spills.. Train yard sues manufacture saying that the ultrahazerdous activity is the manufacturing of the chemical o Posner analysis of section 520 o Guille case (hot air balloon) o Great probability of harm Most important factor Inability to reduce risk through exercise of due care. If due care wont work the only other option is to reduce level of activity Best position to stop this accident is the transporter

Yukon (rejection) Explosion of building used to store explosion Court insisted that use and storage of dynamite warranted strict liability no matter how valuable the activity may be Defenses Assumption of risk Strict Liabiity

Historical Rabin ideology Leroy fiber Train sparks set Ps hay on fire SL for train because free use of property. Majority-Absolute rights Holmes-contemporary policy Chavezo Liability of shipper who was mandated to take dangerous cargo is strict liability because of capacity to spread losses. H, J and G Social Ins. Loss spreading: Common law: Enterprise liability (defendants pay) Contemporary policy King Goals/Memo Loss spreading : enterprise is in a good position to spread the costs of an accident through prices Posner Deterrence Inflation/ risk allocation Fairness Liberty Externalities : cost associated with an activity Return Morality Fletcher Epstein Keating (like Grimshawvalue of life greater than any cost benefit analysis).

Strict products liability Formation PFC Defect

Causation P cost Escola Coke bottle Exploded in ps hand RIL can apply when a plaintiff can show that the condition of the product did not change after it left the defendants hands and the accident would not occur without negligence Minority opinion-Should use S/L when a defect causes injury Doctrine Macphersen: Regradless of privity manufacturer responsible. Public policy demands macpherson not be limited to negligence context Policy justifactions of s/l on manufacturers Shift loss Note : similartities to bierman Henningson (contract method of s/l) Steering mechanism of recently acquired Plymouth caused car to spin out of control Imposed warranty on manufacturer for eventual purchaser

Void disclaimers using against pub policy arg. Greenman (shift to a strict liability regime) Person hurt while using power tool P verdict based on negligence and express warranty claims Manufacturer appealed on warranty notice grounds o Judge traynor disagreed Vandermark Breaks fail on new ford Trial ct dismissed claims against manufacturer for negligence and breach of warranty gave negl verdict on retailer Appeal ct uphld negl claim and reversed the claims against the manufacturer Proper Dist ps Bystandards

Elmore Driveshaft of car falls out and injurers another driver bystanders entitled to strict liability Lessons Price S/L for lessor Franchises Kosters Imposing s/l on the franchisor for franchisees defective design of carton Financial Nath No S/L for co that financed a piece of equipment (no capacity to deter). Sucessors Liability Ray/Sennetor Used Goods Tillman No S/L for used goods Govt Contract Boyle No strict liability for govt contractor Bystanders Elmore Entitled bystanders to strict liability PFC Rst 402 a Defective condition unreasonably dangerous The manufacturer has exercised all possible care Defect=consumer expectations about manufacturing defects NO UNREASONABLE CONDUCT RECUIREMENT Rst 3d

We need a way of thinking about product liability not only in manufacturing defect but also design and warning defect. Focus on conduct in relation to the industry standard (reasonable alternative design) Mft Defect Cases Welge Price Used car accident Car too old could be replacement parts, improper maintenance

Peanut jar explodes when dude closes it Courts infer that there is a defect

Daniels Exploding battery case Infer defect Rst 3d 3 Inference Allows to infer a defect in cases where the accident ordinarily wouldnt happen if there was not a defect present Design Defect Basics Cronin Truck driver injured when trays came forward and hit him Ps verdict No unreasonably dangerous requirement o Unreasonably dangerous requirement sounds too much like negligence Barker P injured when high lift loader overturned on a slope Product must be used in intended D has burden of persuasion if risk outweighs the benefit Problem with consumer contemplation is that consumers might not have the requisite knowledge to contemplate.

Sonle Car floor board resistents

Reversed using bakers decision that jury should be charged with excessive preventative danger (risk benefit analysis) not consumer expectation. Barker-shift burden to the defendant REMEMBER CAUSATION Jury EXAM: Assume barker jurisdiction and do the analysis under barker Consumer contemplation and Excessive preventative danger Barker analysis What bucket Consumer contemplation or Risk benefit analysis If the product does something really really bad than consumer expectation. If it requires expert testimony cost benefit. Barker defined Campbell P injured on bus with no grab bar Use consumer expectations Pruitt Airbag deployment at low speed collision No consumer expectations use c/b Hackney not convinced Morton Asbestos case Use consumer expectation Product comparison RAD principle tool of c/b RST 3d Consumer contemplation is not grounds for independent claim but is contained within NEED expert testimony Show alternative product on mkt Create new design or prototype Basic defense: thats a different product Banksunrem

Dreisenstok Minibus case Decided under negligence regime uses consumer contemplation along with risk benefit (price, cargo room) Bittner 3 wheel Atv accident Allowed to compare other products for the same purpose (4wheelers atvs ect) not skidivign scuba diving Design Defect Cont Open and obvious Camacho folds consumer contemplation into risk benefit o Guy suffers severe leg injuries in a motorcycle accident and claims they could have been prevented if it had leg gaurds. o Whether the danger presented by a product in a products liability action is within the contemplation of the user is irrelevant. The Relationship between consumer contemplation and risk utility o Ortho Test Usefulness and desirability of the product Saftey aspects of the product-likeliness that it will cause injury and seriousness of that injury The availability of substitute product which would meet the same need but is safer. The manufacturers ability to eliminate the unsafe characteristic of the product without imparing its usefulness or making it too expensie Users anticipated awareness of the danges inherent to the product and there avoidability The feasibility of the manufacturer spreading the cost

Obrien Plaintiff injured when he dove into an above ground swimming pool Even if there is no reasonable alternative to making the bottom of pools this does not preclude a finding that the risk posed by the pool outweighed its utility Braughn (rejection of obrien

No liability for mini trail bikes when they are used on the road (no rad) (warning) Warranty Denny Off road vehicle advertised for use on road Consumer contemplation Castro Turkey pan case Uses implied warranty to expand liability to facilitate loss spreading Uniformity Dawson o Critiques of case by case risk-utility analysis 1) no uniform standards 2) inconsistency of judgements Warnings I. Intro Comment j 402 a In ordered to prevent a product from becoming unreasonably dangerous a manufacturer may need to provide warnings or directions Warnings giving instructions as to safety Safety warning for a risk that can not be eliminated. Instruction v warning Rst 3 com i In general a product is not under duty to warn for things that should be common knowledge Common knowledge Brown No warning requirement on tequila bottles Maneely No warning requirement for riding in bed of pickup Emery Kid choked on marshmellows

Jury must decide whether it was common knowledge for a child to know that mellos expand when wet. Adaquacy Hood Is the warning adequate Skill saw takes of the gaurds A warning need only be reasonable under the circumstances Cotton (info cost) Propane tank exploded More warnings reduce the impact of current warnings Pittman Test a Warning must convey Scope of danger Serousness of possible harm Physical aspects of warning must be adequate to alert a reasonably prudent person.

Johnson Warning language must convey seriousness of accident that could result Campos Pictorial depictions of warning necessary when people dont speak English or children who can read Heeding Coffman Instruction Moran Moron kid pours cologne on candle Only duty to warn for foreseeable dangers Ragans Weave case exploding activator Instruction failed to warn about the dangerous consequences just saying erious injury not enough

Misuses Lugo Must warn/design foreseeable unintended uses Price Foreseeability of a violent act because of the Bush mask Briscoe

Not responsible for foresseing that someone will throw drain cleaner at a rival Addressee General To User Exceptions Children Lerned intermediary exception: Karl Pharmecutical cos advertise so they should wrn consumers about dangers Majority rule: Learned intermediary Minority rul follows Karl State of the art Vasallo Breast implant case Allows for state of the art defense Product lianility def Contributory negl Com n 2d Since liability is not negligenceContributory negl not a defense however conduct of a different sort which arises to assumption of risk does constitute a defense Assumption of risk Hawk Plane crash no oil duty to inspect Contributory negl not a defense to strict liability Com negl Rst 3rd Compartative negl is ok Shanchez Leaves truck running and it runs him over P Does not have to discover or guard against a defect but if behavior goes beyond that comparative negl applys Hagland

Smoking case Correia if you knowingly obtain a product that is defective and use it assumption of risk o Under normal circumstances product must be safe

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