Torts – Coleman – Fall 2011 Outline    Tort law: government imposed obligations on how we treat each other Justifications

: o Primary: compensation of victims for injuries inflicted by others o Secondary: deterring harmful behavior Burden of proof: o Preponderance of the evidence  Standard used in torts, willing to bear risk of error  Deprives defendant “only” of money, considered to be relatively unimportant compared to ie liberty  More than 50% Fault continuum o Intentional torts -> reckless -> negligent -> strict liability (most to least mentally culpable) o Intentional: most mentally culpable, egregious o Negligent: acting unreasonably, imprudently  Includes reckless, gross neg, neg  Reckless: knows or should know of risk, willful wanton o Strict liability: you cause, you pay – a,c,i o Fairness when mentally culpable Intentional Torts Prima facie case: o Act: any kind of volitional movement (not reflexive reaction) reflecting actor’s will o Intent  Substantial certainty test: plaintiff must show that act was done with desire for particular result (purpose) or that def. had substantial certainty that result would happen – more than reckless/high risk  As the level of certainty that consequences will follow decreases, as does the level of fault o Cause: actual: factual, proximate: fairness o Injury: something law recognizes as injury Fyffe – injured while cleaning conveyor belt, have to prove more than harm was likely but that it was substantially certain to occur. 3 pt test: knowledge of situation, knowledge that substantial certainty, required employee to continue task (and) Serna – Previous cave-ins, company was warned of danger, employer did not fix but told employees to crawl in pipe instead. Q of substantial certainty, diff lvl of injury Film Recovery – Workers exposed to hazardous chemicals, company purposely hired non-English so they couldn’t read warnings + ignored warnings + complaints. Ex of IT Battery and assault Prima facie case: o Act – volitional act
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o Intent – satisfied if actor intends to cause either harmful/offensive contact or imminent apprehension of such contact or substantial certainty that it would happen  Dual intent  Must intend the contact and intend it to be harmful or offensive  Transferred intent:  If act done with intent of apprehension causes contact, liable for battery o Intention for battery satisfied by intent for battery or assault  If A meant to cause harmful/offensive contact or imminent apprehension to B and does it to C instead, A liable to C  Offensive: if it offends a reasonable, ordinary person in that time and place, not just sensitive person  Lack of consent to the touching can create offensiveness, even if the P is sensitive o If D knows of the sensitivity and acts regardless, going against consent o Policy: protects self-determination of what is done to body  Imminence: not sometime in the future, no significant delay  Future threats actionable under IIED o Cause o Injury  If act results in harmful/offensive contact – battery, if act results in imminent apprehension (incomplete battery) – assault Minors liable for assault/battery o Exception: if injury is an accident or in course of play  Policy: accidents happen, want to allow kids to play without fear of litigation o Policy: compensation for victim, vs moral blame of infant o Parent not liable for torts of child unless known propensity, then reasonable care  Known propensity must be of specific type – rob/rob not just bad behavior Person of unsound mind/insane (kids treated same as adults of unsound mind) liable for assault/battery o Act element: although it was a crazy choice, it was still a choice. Not reflexive o Same reasoning applies to intent o Policy: if two innocent people have to suffer a loss, it should be borne by one who caused it o Justification: people may be able to pretend to be insane to avoid liability Mcbryde – shot at car to scare passengers, ended up hitting P, two transfers: carneighbor, assault-harmful battery Weisbart – kid shoots neighbor in eye, found liable despite lack of negligence Polmatier – D was insane, shot someone and gave irrational explanations, found liable White – difference from Polmatier was that no explanation was given, failed to prove intent
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Wishnatsky – D pushes door into P when he tries barging in, not offensive because P was overly sensitive Cohen – P didn’t want to be seen naked during c-section, informed D, D implicitly agreed and violated this Dickens – P beat up and threatened with future harm after sex with minor, SOL prevented AB claims, IIED claim instead

Intentional Infliction of Emotional Distress  Prima facie case: o Act – act was extreme, outrageous and utterly intolerable in a civilized community  To determine extreme/outrageous, look at: conduct at issue, period of time over which conduct took place, relation between P and D, D’s knowledge that P is particularly susceptible to ED o Intent – defendant intended to inflict emotional distress or knew and should have known that emotional distress was the likely result of his conduct (susceptibility of P)  Can be made out by showing of mere recklessness because of egregiousness of conduct – not substantial certainty o Cause – defendant’s conduct was the cause of the plaintiff’s distress o Injury – plaintiff’s emotional distress was so severe in nature that no reasonable person could be expected to endure it  May be significant to see health professional for concerns, physical manifestations also important – if no physical, even more outrage Policy: not intended to provide legal redress for every slight indignity, strict construction b/c hard to prove Jones – Clinton called her up to his room, made sexual advances, she rejected, failed to prove act was more than odious, intent to inflict, injury because she continued to work

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False Imprisonment  Prima facie case: o Act – volitional act o Intent – intent to confine within bounds fixed by D by words/powers (not just bars), don’t need bad motive o Cause – confinement must result directly or indirectly from the act o Injury – must be aware of confinement or harmed by it, can be for very short period of time Possible defenses o Lawfulness  Merchant/law enforcement officer: depends on reasonableness – ie of manner/space and duration  Private citizen: whether D was correct in sensing need for apprehension and then reasonableness
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 Subjective belief irrelevant – objective standard o Consent: (below) Trespass  Prima facie case o Act – volitional act  If entry on land involuntary, like tripping and falling, no action will lie unless entry causes damage + result of reckless or negligent conduct o Intent – must have intended action that constitutes invasion of land/interference with chattels of another  Don’t need to have intended to enter land – SL, single intent o Cause o Injury: entry on land is enough  Land includes subsurface + airspace to an extent near ground  Purpose: land is sacrosanct, enhances security Some entries are privileged, like with the consent of the possessor o However, cannot remain on the land after possessor has asked to leave, must leave within reasonable time or be liable – trespass ab initio For trespass to chattels (movable items/animals): action will lie when dispossessed, or if interfered + can show actual damages (will get amount of damages) Conversion: intentional exercise of control that seriously interferes with right of other to control it, actor may be required to pay fair market value o Same as trespass to chattel when destroyed Affirmative defenses to intentional torts Can either rebut prima facie elements or use an affirmative defense like – Consent o Willingness for conduct to occur, manifested by action or inaction o If words or conduct are reasonably understood as consent, constitutes as consent  By average person, reasonable person – non-weirdo  Look at setting/context to determine consent o It is enough that one consents to the act that leads up to the injury, don’t have to consent to the injury itself o Exceptions: people who can’t give consent: mentally immature (age) or otherwise incompetent  Otherwise incompetent includes those that have some sort of abnormality that the defendant knows or has reason to know of o Consent is also not effective if given under fraud, mistake, duress  Fraud: std’s, mislead  Mistake: a instead of b  Duress: compelled to give consent when in reality not willing to do so. Has to be drastic and amount to an overpowering of the will, not mere persuasion. Crucial to personhood o Also cannot consent to violation of a law designed for D’s protection, ie workplace safety
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o Medical situation: lack of consent = battery, must attempt to find proxy before doctor determination when P is out of it    Hellreigel – P’s neck gets broken as D try to throw him in water, found that he consented to horseplay, didn’t have to consent to injury Reavis – tried arguing did not consent + did not have capacity to consent (couldn’t resist) + was under duress (job) Self defense o Must reasonably perceive a threat and act proportionally  Right to hit cannot be based on verbal provocation – must be threat o Can’t use deadly force unless you reasonably believe you are threatened with serious bodily harm  Factors to consider:  Character and reputation of the attacker  The attacker’s belligerence  The difference in size and strength between the parties  The attacker’s overt acts or threats of bodily harm  The possibility of peaceful retreat o No privilege to use force calculated to cause death or serious bodily injury to repel threat to land/chattels unless there is also a threat of death or serious bodily harm to D  Policy: higher value placed on human safety than property rights  Semi-exception: personal home is sacrosanct because of potential for you to be in it. Right to assume guy will be dangerous o Self defense of third person: split between being right + reasonably certain Lane – loud noises, old man gets mad and confronts, preemptively hits, then gets ko’d: court says he went too far despite both engaging in an illegal fight Brown – drunk guy is belligerent in parking lot, pulls guns and threatens to kill cop, cop shoots him in self defense, application of factors Katko – sets shotgun trap to injure intruders in uninhabited property, not ok. Dissent talks about unclean hands, old uncivilized rule Discipline MPC: o Force justified if used for purpose of safeguarding/promoting welfare of minor, including prevention/punishment of misconduct o Force not designed to cause or known to create substantial risk of death, serious bodily injury, disfigurement, extreme pain, mental distress, or gross degradation  Level of force in MPC does not have to be reasonable – just not extreme Restatement: o Parent is privileged to use reasonable force/confinement on child as reasonably believed to be necessary for proper control, training, education o To determine reasonableness of force, consider factors:  Whether actor is parent
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Age, sex, physical/mental condition of child Nature of offense + apparent motive Influence of his example on other children of the same family/group Whether the force/confinement is reasonably necessary and appropriate to compel obedience to a proper command  Whether it is disproportionate to the offense, unnecessarily degrading, or likely to cause serious/permanent harm o For state to negate parental privilege, must prove:  Force the parent used was unreasonable or  The parent’s belief that the force was necessary to control child/prevent misconduct was unreasonable o Not privileged to use means to compel obedience if a less severe method appears to be equally effective o Reasonableness depends on the community in the situation Parents responsible for what they intend, not what happens – accidents okay Policy: balancing parental rights vs. preventing abuse of children Willis – child steals clothing, gets disciplined for it by mom, CPS + police notified, asks whether it was reasonable Necessity Public: o In certain situations, private rights of individual must yield to the interests of society o If gov actor needed to do it, person not liable o Statutes exist to justly compensate those whose property is taken, destroyed, or damaged for public use. Not law though, but nice  Policy: not fair to allocate entire loss to innocent person for the good of public, maybe should place burden on those who benefited or just public Private: o One is privileged to enter land of another if it is or reasonably appears to be necessary to prevent serious harm to the actor or his property – defense to trespass  Even if a trespass is done out of necessity, P are entitled to compensation for the damage done Takings always require compensation, whereas trespasses done out of public necessity may not Surroco: house torn down to prevent spread of fire Wegner: suspects take shelter in innocent’s house, police fire in tear gas and flashbangs which damage house, statute applied to make them pay Rossi: girl was being chased by dog, trespassed in order to try and get away from dog, owner of other attacking dog not immune from liability Vincent: D forced boat to stay moored, damage results when boat in storm repeatedly smashes against dock (trespass) – although necessary, still must pay damages. If D hadn’t deliberately held boat, act of god?
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Negligence Prima facie case o Duty – to guard against reasonably foreseeable risk of injury o Breach – breach of standard of care, not acting reasonably  Reasonable prudent person + circumstances  P must have alternative theory of conduct o Causation – actual v. proximate cause o Injury – must be actual personal injury or property damage, not nominal Calculus of risk – duty/breach Reasonably foreseeable risk/duty can be calculated using common experience, statistics, and moral reasons A reasonably prudent person has a duty to guard against foreseeable injury to person or property of another, not necessarily a specific injury or the extent o Policy: want people to behave carefully BPL o B = burden of taking adequate precautions, alternative sufficient action  If legal requirement, burden is zero. Must do = duty o P = probability of event that caused damage occurring – arguable o L = gravity of the resulting injuries – hindsight number o If B<PL, failure to do B is breach Restatement formula o Includes social utility o Risk of harm unreasonable if > utility o Factors in determining utility:  Social value of protected interest  Extent that interest is protected  Extent that interest can be protected by alternative conduct o Factors in determining magnitude of risk  Social value of imperiled risk  Chance that conduct will cause invasion of others’ interests  Extent of harm likely to be caused  Number of people whose interests are likely to be invaded Haley – blind man fell in a ditch created by utility company, held that blind people were foreseeable in the area, used upper three tactics. Duty to protect all classes of citizens Barker – paper lying in street, trash truck attempts to navigate, runs it over and there was a kid under, he knew there was risk on damage to truck and proceeded anyways -> negligent Carroll – barge got loose and collided with tanker, Q of whether or not bargee should have been on board, B was small, should have been on board Pitre – kid killed by thrown baseball at FD fair, not reasonably foreseeable like ricochet, also fair provides vital public service. Post accident behavior not permitted as evidence Standard of care - breach RPP: Must act as a reasonable person of ordinary prudence + circumstances
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o Objective standard of care, instead of subjective o Ordinary person expected to know certain facts based on common experience  Not enough to say you don’t know, you must know – may be under duty to find out o Arguments for:  Average person knows what the rule is, most of us do the average  Subjective experience would create a vague and wavering line o Arguments against:  Arbitrary drawing of the line by the jury  Different standards of care in different communities Children o Required to exercise degree of care that children of the same age ordinarily exercise under the same circumstances,  Takes into account age, intelligence, experience  Policy: children are adults in training and should be allowed mistakes as part of growing up o Children are held to an adult standard when they engage in activities that are:  Potentially dangerous to others  Argument: if only requires injury, any activity can fall under  Normally undertaken by adults  Require adult qualifications, like licenses  Some jurisdictions say licenses do not code for adult std, just minimum req – fork No mentally deficient adult standard Emergency situations can be considered in the determination of reasonableness, if not fault of their own Vaughan – hay in alley near cottages, D knew of risk of fire, said he would chance it (gross negligence since aware). Applied RPP standard. Duty to not use property in a way that brings harm to others Delair – D drove on worn down tires, collided with P. Had to have known of danger. Must not subject others to unreasonable risk of injury Charbonnau – 17 year old D hit P’s son in car, P wanted adult standard. This ct said to consider age as a factor in determination of reasonableness Goss – 17 year old P skiing and knocked into D, ct held that skiing not strictly adult activity, still juvenile standard Negligence per se – duty and breach o Statutes can set standard of care, establishing fault and replacing duty + breach analysis (negligence per se)  Policy: legislature represents the majority voice of the community  Examples: health and safety statutes, criminal statutes, occupational safety  Exception: statutes may be disobeyed when it is reasonable (ie: when following statute will lead to harm it’s designed to prevent) – look at purpose o Test for borrowing statutes:
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P is a member of the class that the statute was designed to protect, and Harm is the type the statute was meant to prevent  Furthermore: only if violation of statute was proximate cause of injury, can P recover on proof of violation o Majority: violation of statute is merely evidence/presumption of negligence  Must produce evidence showing he was acting reasonably o Minority: violation of a statute is conclusive evidence of negligence per se o Martin: car accident, D came across line, P didn’t have lights on, lack of lights = violation of statute, considered neg per se o Shyne: D pretended to be doctor, held to standard of doctors, P had to prove violation of health statute was logically connected to injury o Tedla: walking along highway, ignored statute to keep to left, did so reasonably to avoid danger of cars o Barnum: car crosses median when trying to avoid motorcycle, D gets emergency exception if he acted reasonably under emergency circumstances, presumption   Custom – breach The unwritten, but generally prevailing practices in a community or industry and trade rules or standards that have been explicitly adopted by a particular profession or industry o Generally necessary to prove the existence of a custom through persons so familiar with the custom that they can be considered experts Custom of industry is evidence of reasonable care. Thus, acting against the custom of industry is evidence of breach o Exception: if entire industry is lagging behind, may not represent reasonable care. What is usually done isn’t necessarily what ought to be done o Another exception: when D can show its alternative was just as safe as standard of industry, maybe not negligent Medical Standard: duty to use the degree of care and skill expected of a reasonably competent practitioner acting in the same class (specialty) in similar circumstances Medical experts set standard of care + breach, must agree with one o Strict locality – standard exercised by physicians in own community/locality, access to resources was unstandardized  Minority o Similar locality – standard observed in similar locality or community  Question of defining similar  Used for general practitioners o Medical neighborhood – locality readily accessible for treatment o National – not tied to geographic locality  Used for specialists, hospitals Rare exception: courts set standard of care in med and find current std inadequate – med different from regular o Extreme BPL cases No licenses doesn’t mean unqualified – must link incompetence to injury Informed consent:
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o Doctors have a duty to inform their patient of all the relevant, material risks of a procedure (duty) – failure to do so is breach  No need to prove what reasonable doctors might tell patients in similar circumstances – matter of law  Reasoning: doctors have the requisite knowledge and must share with patient so patient can exercise autonomy and chart own path o Duty to inform exists if:  Risk of injury inherent in treatment is material:  When a reasonable patient in circumstances would attach significance to a specific risk in deciding on treatment o Experts testify as to present risks, lay people testify about materiality o Minority rule: experts must testify about materiality  There are feasible alternatives  P can be advised of risks/alternatives without detriment to his wellbeing o To prove negligence: P must prove,  Physician failed to inform the patient of a material risk involved in treatment (breach)  The patient consented without being aware or informed of the material risks of treatment/non-treatment (breach)  A reasonable, prudent patient probably would not have consented to treatment when informed (causation)  Seems like most debatable area, paint self as reasonable  Treatment caused injury to P (injury) o Exceptions:  When patient unconscious or incapable of consenting and harm from failure to treat is imminent + outweighs harm from proposed treatment  Emergency, should still attempt to get relative  When risk disclosure poses threat of being detriment to patient’s health    Dempsey: jib attached to crane broke off and killed someone, standard was open hooks, BPL: closed was cheap alternative, industry standard =/= reasonable care Shilkret: baby had brain damage from delivery, arguing over standard to be used Helling: P complained of eye irritation, was never tested for glaucoma because risk for <40 was super low. By time diagnosed -> severe vision loss. Followed med std but BPL analysis says alternative was cheap compared to danger. Ct sets std even in med here o Not much influence outside of particular case Miller: D runs biopsy, causes loss of kidney, P claims he didn’t fully explain risks/alternatives Res Ipsa Loquitur – breach Some types of accidents don’t usually happen without negligence, can infer negligence despite lack of proof o Fills in hole of breach o Circumstantial evidence for jury Burden of persuasion on P, but burden shifts to the D to rebut the inference of negligence
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o Reasoning: proof lies with D, at the time there was no way to compel disclosure o For D to get directed verdict, must produce evidence which will destroy any inference of negligence – make it not res ipsa. Evidence of reasonable care is not enough to rebut res ipsa Conditions for application: o D has exclusive possession and control of instrumentality which produced injury o Event doesn’t normally occur in absence of negligence o It must not have been due to any voluntary action or contribution on the part of P  Is it fair and right to sue D?  If preventable, neg Examples: plane crashes, collapsing bleachers Byrne – barrel rolled out window and landed on P, judges said allowed to presume negligence Foltis – broken water main damaged restaurant, question of whether presumption or inference of negligence, judge goes w/ inference Swiney – tractor trailer wheel detaches and hits P’s car, inspections/standard of care was not enough, lays out reqs to get directed verdict Causation Test to prove causation: o Was D’s conduct the actual/factual cause of P’s injuries? o Was it also the proximate cause? Is it fair to sue? Actual o Common law: had to be but-for cause, would not have happened except for this one factor  D would be able to get off even if they were significantly involved  Now restricted to only when one cause o Modern: substantial cause, enough if involved significantly in the incident o Joint tortfeasors: when there is an indivisible injury caused by concurring acts of negligence, each is held responsible for the entire damage – can seek contribution  Ex: if one is encouraging the other to do something: joint tortfeasor  Exception: bigger/smaller – when one force much bigger, it supercedes the smaller one since the smaller one wouldn’t cause the same damage  Modern: D still liable if one of the causes was natural and would have caused damages, instead of superceding the known negligent act (common law exception) – maybe jurisdictional possibility  Policy: goal of torts is compensation, not fair to deny because P can’t prove who did it o Must prove actual cause by preponderance of evidence (>50%), not just mere possibility  In cases where cause is up for debate (competing medical experts) – jury determination of cause  Can make your client the 1/100 Lost chance o Used to fill in actual cause hole in medical malpractice cases
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o Situation: preexisting condition not caused by D, comes with X chance of good outcome and D takes away some of X in treatment o Traditionally: if X less than 50%, P went home since can’t show it’s probable that D caused outcome o Majority: lost chance doctrine applies  Rationale: can practice medicine with impunity if cases with less than 50% chance of good outcome, need to deter bad behavior + protect patients o Patient hiring to max chances, when duty breached, caused lost chance o Litigation: must prove chance was lost (aka no 0% = X) Proximate o Looking for proxies for fairness and justice o Direct cause test (Polemis): if act will or is likely to cause damage, the fact that the damage is not the exact kind one might expect is immaterial, as long as damage is directly traceable to negligent act – old rule o Foreseeable P + orbit of duty (Cardozo in Palsgraf): must be a foreseeable P, within the orbit of danger in the eye of reasonable vigilance. Who can you imagine will be affected? That’s P. Risk reasonably perceived defines the level of duty. o Toolbox: (Andrews in Palsgraf):  Must be something without which the event would not happen – a but for?  Natural and continuous sequence between cause and effect?  Substantial factor? Substantial cause  Direct connection without too many intervening causes? Direct cause  Not too attenuated?  Is cause likely to produce the result? Probable cause  Foreseeability of result? Foreseeability test  Is result too remote in time or space from cause? Orbit of duty  Stream analogy: if you can distinguish and attribute cause, proximate cause is fair (idea of different colored water)  Chauffeur analogy: explosion is factual cause, diminishing acceptance of claim, where do you draw the line? Orbit o Foreseeability test (WM1): the type of damage must have been foreseeable, specificity  Policy: not fair to hold D liable for enormous damages, when the kind of damage was unforeseeable  Fork:  Manner in which type of damage happens doesn’t matter – doesn’t have to be foreseeable (Hughes)  Can characterize manner in which damage occurred as different type (Doughty: explosion vs splash) o Manipulation of foreseeability test  Must argue that the kind of damage was unforeseeable, not the extent. Extent gets you nowhere  Only have to foresee same cause of damages. When there is a large P of small damages and a small P of large damages and they both have the
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same cause/what P has to guard against, D is responsible for whatever happens (Kinsman)  Related to: thin skulled P: even if you don’t know someone is vulnerable, liable for the consequences  Rebuttal: anything can be made foreseeable in hindsight, has to be foreseeable at the time  D may be liable for a small, albeit reasonably foreseeable, risk (WM2)  Reasonably foreseeable risk if reasonable person running BPL would have acted  Must conduct BPL, reasonable to disregard only if there is valid reason for doing so eg considerable expense B Intervening causes o May exist between breach and causation and break chain of causation o Even if D is direct/foreseeable cause of P’s injury, may escape liability if there are superceding causes o Negligent D is still liable if the intervening acts of another + injury might reasonably have been foreseen  D’s negligence must be actively and continuously operating (aka window in Glasgow)  If not, maybe intervening act = superceding  Common law: criminal conduct will usually be a superceding cause o Other superceding causes:  Government – liable when due their negligence, prisoner escapes/released and commits a foreseeable act  Social hosts – at common law, not liable for injuries caused by their inebriated adult guests  Recently, liability has been extended to social hosts – policy decision to punish/deter  Suicide – normally cannot hold D liable, unless substantial evidence of cause  Acts of god – if reasonably foreseeable, D may be held liable  Aggravation of injuries – D held liable for any aggravation of injuries during course of medical treatment; foreseeable consequence  Probably matter of extent  Rescuers – D liable for injuries sustained by those going to rescue of endangered  May be different for professional rescuers – assumption of risk Kingston – two fires combined to destroy P’s property, one of natural origin, one by D, no superceding/natural cause – liable Kramer – glass above door broke and fell on P, hotel knew of break + reasonably should have foreseen fall, cancer developed, probability v. possibility Daly – P tripped and fell in store, got breast cancer after, jury was allowed to make determination of causation – doc made her the 1/100 Summers – two D’s shoot at quail and hit P, don’t know which one hit him, able to hold both liable and they deal with allocation
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Hotson – P climbs tree, falls and fractures leg, doc fails to diagnose injury for five days, leads to permanent injury, says that permanent injury would have resulted anyways, X=0 Polemis – flammable gases onboard, ignites when D’s workers drop plank, ship destroyed, direct cause since threatened damage although fire not foreseeable. Said foreseeability irrelevant except for breach, later changed Palsgraf – man about to fall from train, guard helps him in, package falls, fireworks explode, scales hit P. Two different opinions, both valuable. Orbit of duty and factors Wagon Mound 1: D spilled oil in bay, P became aware of oil, asked about safety, continued to work, smoldering rag falls into oil and lights, damages wharf + ship. Rejects Polemis as unjust (now minority), uses foreseeability test. Oil burning on water not foreseeable, only splash damages. Hughes: tent over manhole, kids go in, knock lamp in and explosion results, burning damage was foreseeable + doesn’t matter that it occurred through explosion Doughty: cover fell in liquid, explosion occurred, ct held that there were two different types: splash and explosion, splash was foreseeable, while explosion was not, outside orbit of splash duty – at odds with Hughes, still burns Kinsman: boat improperly moored, hits another boat, city doesn’t raise bridge in time, hits bridge, bridge falls and makes dam, causes upstream flooding. Ct says that because upstream + downstream damages resulted from the same thing that D had to guard against, liable Bolton – cricket ball hit out of ground onto public road, injures lady, only likely to happen once in a many thousand years, BPL – burden high, would have to put up nets or stop playing Wagon Mound 2: uses same facts as WM1, says you can’t always disregard remote risks, must use BPL analysis, B = 0 since stopping would be easy + act illegal Glasgow: kid pushed hands against D’s poorly maintained window, glass shattered and caused a stampede, P was knocked down + injuries, D liable because poor maintenance led to accident + foreseeable that injury would have occurred Brauer – wagon collided with train, P was dazed and people stole his stuff, railroad detectives did nothing to protect property. Ct held D liable although third party intervened (foreseeable), dissent says that criminal acts are not foreseeable by definition Affirmative defenses to negligence Two of them: contributory/comparative negligence and assumption of the risk – liability Contributory negligence o If P was at fault to any degree in causing the accident, contributory negligence was traditionally a complete bar to recovery o NC has contributory, as well as some SE states -> exception, most states allow for comparison o Idea of unclean hands – can’t excuse own fault by saying someone else was also negligent. Must have exercised reasonable care, objective standard o Exception: if P’s negligence is a condition and not a cause, contributory negligence does not apply  Conditions just put you where you were at the time of the accident – ie change of position in Smithwick – don’t actually cause accident  Can use condition/cause language to get what you want
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o Exception: contributory negligence cannot be applied when violated statute imposes absolute liability or is aimed at protecting the certain class of people or has to do with safety acts o Exception: cannot be applied when D is guilty of intentional, or willful and wanton misconduct – apples to oranges  Exception to exception: when P had the same level of fault, complete bar o Last clear chance – tried to allocate legal blame to the last party that had a chance to avoid accident  Helpless plaintiff: P negligently subjects himself to risk of harm but is no longer able to prevent the harm with reasonable care while D still has the ability to prevent  P can recover if D is negligent in averting the harm and knows or should know that P is helpless  Inattentive plaintiff: P negligently subjects himself to harm and could have discovered the danger and avoided it, but did not  P can only recover when D knows of P’s situation, knows or has reason to know that P is inattentive and unlikely to discover the peril in time to avert, and negligent in averting the harm Comparative negligence o Can now compare negligence in all forms, no more wanton and willful exception  Minority: some keep old rule for < intentional tort o Pure comparative negligence: P is only barred from recovering the proportion of damages for which he is responsible. However, all parties are potential P unless one is 100% at fault  Procedure: state total amount of damages for each party, then percentage of fault attributable to each party  Policy: fairness and justness of allowing P to recover despite some fault  Arguments against pure:  Focus on damages in spite of fault  Prevents people who are less at fault from suing if more at fault party has more expensive damages o Ted Turner hypo: rich guy with mega damages + mega fault can dissuade someone with low damages + low fault from suing  Arguments for pure v. modified:  Arbitrary line of liability at 50%. What’s the difference between 49% and 51%? o Modified comparative negligence: P fault must be slight compared to D  P contribution is less than that of D (49% or less) or  No more than (50% or less) – majority  Policy: if a party substantially contributes to own damages, should not be able to recover – fairness  Middle ground between contributory and pure comparative – incremental change  Majority rule Assumption of the risk
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o Assumption of the risk of harm must be made both knowingly and voluntarily  Subjective inquiry, as opposed to objective standard in contributory negligence  Allows inferences into what P was thinking  Sometimes courts will invoke objective standard when they find that any person of ordinary intelligence must have known the risk – obvious danger o Common law: assumption of the risk was complete defense o Modern: in some jurisdictions, assumption of the risk abolished/merged with comparative. In others, assumption of risk still bar o Two types: express and implied  Express: written or oral, P agrees to waive risks inherent  Not changed by shift to comparative negligence, still valid  Exceptions: o If service is necessity + obvious disadvantage in bargaining power  Ski resorts (recreation is necessary + important to VT economy), parking garages, hotels, daycare o Safety statutes cannot be waived by private individual o Agreements do not cover extreme forms of negligence or intentional torts o Children can waive unless it’s a weird, non-regular activity (like flying a plane) – then in question  Parents can waive for children in some jurisdictions  Argument: distinguish what you are waiving from what actually happened o Ex: baseball stadium: risk is fly balls, she got hit during BP in weird location  Implied: no conscious prior agreement between the parties  Mostly subsumed within comparative negligence – not absolute bar, just up for consideration of fault allocation  Three types: o Primary  P assumes the risk inherent in the activity, no duty of care by D for P – absolute bar  No duty rules apply to risks which are common, frequent and expected – almost objective std  Ex: baseball – batted balls do not create liability since risk inherent. Bats do though  Can be applied to all sports, risks as part of it + unavoidable o Liability imposed when intentional or reckless, outside ordinary of sport  Argument: distinguish the assumed risk from the risk that came to pass  Fork: in some jurisdictions, primary still absolute bar. In others, just to be considered in comparative
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o Secondary  Impliedly but reasonably assuming risks inherent  Hypo: man runs into burning building to save baby  Assumption of the risk worth taking, BPL risk worth taking  In allocation of fault, not as bad fault wise as tertiary o Tertiary  Same as secondary, but unreasonable  Hypo: running in to save property Liability of multiple parties Two scenarios that permit P to be compensated + D to be reimbursed o Vicarious liability  D responsible for torts of another, usually employment related  D sued, then primary tortfeasor indemnified  Employment:  Employer responsible for torts of employee conducted in scope or course of employment o Exceptions:  If on frolic – no liability. If detour, liability. This depends on how far removed geographically + in substance servant’s action is from business  Intentional torts, except if  Employer orders it  In furtherance of employer’s business, or  Employment one of trust o Taxicab, therapist, childcare o Defense:  Employer not responsible for acts of contractor  Contractor: hired by employer, but has expertise + independent, uses own equipment and makes own decisions  Employee: activities directed by employer – even micromanaging  Exception: when there is a non-delegable duty, employer liable for contractor  Ex: making premises reasonably safe, duty not to injure people in hazardous activities  Non-employment:  Joint enterprise situations where two or more people get together for a common purpose o Four part test:  Express or implied agreement among members of group  Common purpose to be carried out by group

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Community of financial interests in that purpose among members  Equal right to voice in direction of the enterprise, equal right of control  Ex: voting in car trip  Other ex: owner of car lends to driver o Fork as to whether you must prove negligent entrustment – majority don’t need it  Three part test to determine fairness of indemnity o Proper and timely notice o Primary tortfeasor in fact liable o Settlement fair and reasonable o Joint and several liability  P injured by more than 1 D, can sue all or one  One can then sue rest in contribution  Patchwork of rules:  Burden on D who pays to find another Ds and get contribution, can be stuck with tab. Or  P can recover proportional share from D. Or  Mix of two: burden on D if more than 50%, burden on P if less  Reallocation of defaulted shares also depends on jurisdiction o Effect of settlement  As long as settlement and release given in good faith, settling D not responsible for contribution later on (unlike common law)  P recovery reduced by amount of the settlement Group liability o Situations where more than one company in market manufactures defective/dangerous product o P can’t prove causation against particular manufacturer o Different theories of causation (argument: D shouldn’t have to pay where P can’t prove causation)  Burden shift to D to exonerate themselves  Disfavored when a lot of D – less likely to have right one  D may not have evidence to exonerate self  Acting in concert – maybe got together decided on common strategy  Can’t work if parallel imitative conduct, no concerted action  Industry wide cooperation  Standard – all created risk and all are negligent towards P  Not satisfied by mandatory regulatory standards like of FDA  Market share – most favored, fairness  D only pay according to their market share  Burden shift to say they didn’t have share in market o Exception: vaccines – lack of profit + social good, no recovery

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Butterfield – P was riding horse fast and was thrown when he ran into obstruction. Did not exercise ordinary care and D got off Smithwick – D told P not to stand on a spot because risk of slipping, P stood there anyways, and got hit by falling brick. Negligence of D in maintaining walls, P not negligent with respect to falling brick since it was not foreseeable. Change of position condition not cause Hoffman – court changing rule, takes into account changes in social customs and present day conceptions of right and justice + social upheaval, adopts comparative because more equitable Bradley – ct switches to modified comparative in between contrib. and pure comparative Martel – P got drunk and climbed power tower, got electrocuted. Negligence was willful and wanton since they knew through violation of statute + high risk. P’s intoxication was merely negligent. Can now compare apples to oranges, unlike before Frank Elliot – went in the street to direct traffic + puts himself in danger (reckless), trolley guy sees and hits him (reckless). Apples to apples, barred since equal level Lafrenz – lady signs waiver and gets hit by car at demolition derby, ct looks at different exceptions and says they don’t apply Herod – hillbillies in car trying to kill deer, D attempts to run over deer, P falls out. Objective standard invoked – must have known Jones – P hit by baseball during BP, baseball fly ball rule, particular risk was not foreseeable + fly ball rule did not apply Auckenthaler – P kicked by horse ridden by D1 owned by D2. NV got rid of assumption of the risk and only uses comparative Special duty rules Exclusive list of special situations: o Failure to rescue/aid  No duty to rescue  Reasoning: don’t like to punish for omissions, freedom of choice  Exceptions to no duty rule:  Statutory exception: if no burden, misdemeanor not to take reasonable steps to aid. Minority  Promissory estoppel – P relies on D promises to aid. D fails to rescue, P harmed/increased risk of harm. P had detrimental reliance  Special relationships o Common carrier, innkeeper, possessor of land of open to public, custodians – must act as RPP  Reasoning: in situations where you might not be able to help yourself. Precludes others from saving  Caveat: not exclusive, trend towards duty to protect in relations of dependence/mutual dependence  People on social venture perhaps seen as mutual dependence

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Land possessor: duty to implement reasonable measures to guard against foreseeable risks  Look at all circumstances, consider burdens on D – higher risk leads to more burden  Special relationship between P+D and an identifiable + foreseeable victim could impose duty to protect  Special relationship between D + tortfeasor may extend duty to someone threatened  Special relationship between D and suicidal person creates duty to prevent foreseeable suicide  Hospitals, prisons, schools  Factors to look at when assigning duty  Foreseeability of harm  Degree of certainty that P suffered injury  Closeness of connection between D conduct and injury  Moral blame attached to D conduct  Policy of preventing future harm  Burden on D + consequences of imposing duty  Those whose conduct threatened/hurt others: duty invoked to aid if liable or get help/prevent further harm (if not liable)  Volunteer rescuer: once duty is voluntarily assumed, must be performed with due care. Also liable if aid discontinued + leaves other in worse position than before o Reasoning: precludes others from aiding o Good Samaritan statutes:  No liability as long as not more than negligent  Immunity depending on jurisdiction for medical practitioners o Premises liability  At common law, three categories of entrants. Type of entrant determined duties owed to them  Invitees o Came on land with express or implied invitation for a business purpose of mutual interest to owner and entrant (mutual economic benefit) o Duty to not be negligent: fix known or knowable dangers and warn of non-obvious  Licensees o Came on land with consent of owner but solely for their own purposes. o Duty to not be gross neg+, or injure willfully or wantonly o Examples: social guests + people entering land open to public
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Trespassers o Came onto land without invitation or consent o Duty to refrain from intentional torts

Today:  Old categories  Merger of licensee and invitee, keeping trespassers separate o Licensees who enter land open to public treated as invitees, test of a) mutual economic benefit or b) invitation test (open to public) o Licensees who are social guests still same as common law o Unknown trespassers still the same o Known/expected/constant trespassers get licensee duty  Eliminate status categories, in favor of reasonable care in the circumstances o Reasoning: sanctity of land no longer as important as value of life  More protection for children today:  Attractive Nuisance rule: possessor of land subject to liability for physical harm to child trespassing caused by artificial condition if o Place where condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass and o Condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk for death or serious bodily harm to such children and o The children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it and o The utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved o The possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children  Duty owed by lessors to renters  At common law, landlord not liable except in: o Common areas o Hidden defect of which landowner but not tenant is aware o Repaired dangerous condition but did so negligently o Premises leased for public use o Immunity  Charities  Act as quasi government to protect poor – should share same gov immunity  Don’t bite the hand that feeds you – P are typically beneficiaries, shouldn’t complain
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Over time eroded/abrogated, but now making a comeback: statutes restoring immunity as long as in good faith Interspousal  Idea of being one, can’t sue self  Erosion over time because women got rights Parental  Common law idea that parents immune to suit for taking care of kids  Abrogated by Goller rule except for under two conditions: o Exercise of parental authority (discipline) o Ordinary parental discretion with respect to provision of food, clothing, housing, medical/dental services, and other care  Catch all category, broad reading because hands off of family matters  Parental rights and autonomy very important  Either immunity or no duty – same effect  Abuse/neglect – more than negligence  Reasonable parent standard – objective, minority Governmental  US waived much of its sovereign immunity under Federal Tort Claims act  Still has other defenses  Exceptions: o Can’t sue if government agent just following what statute/regulation says to do (even if rule was bad) o Allows for negligence suits – only for ministerial acts, not discretionary  Ministerial: no discretion, something you have to do. Shall do  Discretion: when employee acts in judgment, policy decision immunized. Should do o No strict liability, no punitive damages, no intentional torts  No IT unless wrongful act/omission by police in scope of employment  Local governments not considered sovereign, can sue o Public duty doctrine – rule that local govs owe duty to protect all but none individually  Problem of scarce resources  No immunity but no duty  Exception: when government has special relationship with a person, duty created – ie saying you’re going to come when they call 911  Test:

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o Actual knowledge of dangerous condition – must have known particular danger P exposed to o Reasonable reliance – personal assurances o Enactment of regulation for protection of particular class – must be specific class of people o Failure to avoid increasing risk of harm – must leave in worse position o NIED  Duty to refrain from exposing to NIED – run PF case  Direct victim  P who suffer emotionally as a result of negligence directed towards them  Requires simultaneous or subsequent, important physical manifestations o Proof of injury o Minority says you don’t need it, can get proof from medical expertise + credibility judgments. However, need serious/severe stress + must be proved objectively with medical expert o Few juris say no standalone NIED at all, must be piggybacked onto separate tort claim – can file bystander claim  Bystander  P who suffer emotionally as a result of negligence directed toward someone else  Zone of danger vs. Dillon rule o Zone of danger  Strict: can recover if also in zone of danger that resulted in direct victim’s injuries + emotional distress is result of fearing for her own safety  Generous: can recover if in zone of danger, without having to prove her emotional distress is the result of fearing for her own safety o Dillon  Duty to guard against reasonably foreseeable emotional injuries to bystanders – recovery even if outside zone of danger  Factors:  Whether bystander was located near scene of accident as contrasted with one who was at a distance  Whether shock resulted from direct emotional impact from sensory +
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contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence Whether the bystander and the victim were closely related, as contrasted with the absence of any relationship or the presence of distance relationship

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Yania – P jumped into water hole to help D do something + drowned. No duty to rescue. Posecai – P robbed in Sam’s Club parking lot in high crime neighborhood. Acts must have been foreseeable, used totality + balancing tests Farwell – P and D out on social venture, P beaten up, D applies ice + leaves P in car, P dies. Both acting as rescuer + mutual dependence of friends (stretch) Thompson – Juvenile offender released, county knows he will kill a kid in neighborhood, he does it. A lot of governmental discretional immunity. Said that kid was not identifiable, foreseeable – no duty Eisel – girls make suicide pact, school found out but did not warn dad, girl denied, went through with it. School had custody + duty to prevent through informing Parvi – Police took P to campground to sober up, walked toward highway and got hit. Police took on duty voluntarily. Duty must be performed reasonably + can’t leave in worse position Brunnur – Dad told kid to stay in truck. Kid leaves truck and gets hand cut off. Privileged from liability for negligent supervision Tipton – kid mauled by wolfdogs, no specific duty or special relationship Strict liability Three prong test: o Existence of category for SL – goes to duty/breach o Causation – actual/proximate o Injury Animals o Domestic:  By custom, devoted to mankind  Social utility justifies permitting owner some freedom from liability – may be able to get you from wild to domestic  SL only if owner knows or has reason to know abnormally dangerous for its type  One free bite rule – to know it’s abnormally dangerous, must have injured human once o Has to be the same type of injury as you saw o Wild  Not devoted to mankind in this time/place – not domestic just because pet  SL for physical harm  New: SL for those that are likely to cause injury unless restrained  Injury must be that that causes people to consider them dangerous – ie not leash, must be tiger’s bite
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o Trespass of animals SL, sanctity of property o Possibility of comparative negligence as a partial defense, along with assumption of the risk Dangerous activities o Factors considered in determining whether activity is abnormally dangerous  Dangerousness: need one+  A) existence of a high degree of risk of some harm to the person, land, or chattels of others (P in BPL)  B) likelihood that the harm that results from it will be great (L)  C) inability to eliminate the risk by the exercise of reasonable care o Posner: when hazards of activity can be avoided through due care, negligence standard better than SL  Abnormality: need one+  D) extent to which the activity is not a matter of common usage o Usage by people who do it directly vs being connected to it through society  E) appropriateness of the activity to the place where it is carried on  F) extent to which its value to the community is outweighed by its dangerous attributes o SL may also be applicable when there is a problem of proof o Distinction between dangerous activity and dangerous product  Operation of natural gas well not dangerous activity, even though natural gas is dangerous o Only SL when harm/danger that occur are the kind that make the activity dangerous o No SL if harm would not have resulted but for abnormally sensitive nature of P activity o Defense: superceding act o Examples:  Blasting  Gas on highway  Impoundments: waste pools  Application of poisons  Landfills/toxic waste dumps  Atomic energy – preempted by federal law Duran: limousin bull attacks P, this particular type of bull very aggressive. Not enough, must be abnormal to its class Klein: firework blast, several factors required for SL. Said not common usage since only few people allowed. License can be used as evidence of dangerousness Indiana Harbor: manufactured chemical and put it on railcar. Possible negligence claim in handling of tank Foster: blasting frightened mink, which killed babies. Although blasting, not of right type of damages

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