I.

I.

Introduction
I.
I.
II.
III.

Absolute Liability
Need only show cause in fact
No longer valid
Replaced by intent and negligence

II
I

I
I

Strict Liability
I.
Applies to products liability
II.
Need not show intent or negligence, only cause in fact
III.
Defenses
I.
Assumption of risk
II.
Contributory negligence

Intentional Torts
I

Intent in General
I
No respondeat superior
II
No proximate cause
III
Need not show actual damages
IV
Damages
I.
May recover nominal damages
II.
May recover punitive damages
II
Elements of Intent
I.
Purposeful act (to harm) OR
II.
Knowledge with substantial certainty (that act would cause
harm)
II
Children
I.
Can be liable for intentional torts
II.
Subjective standard
I.
What is this childs knowledge?
II.
What is this childs experience?
II
Age ranges
I.
0-7: Incapable of intent
II.
7-14: Presumed incapable of intent
III.
14+: Presumed capable of intent
II
**If capable of intent, liable as an adult would be**
III
Thin Skull Rule
I
D liable for all consequences no matter how unforeseeable
II
Transferred Intent
I
Must show that one of the 5 traditional torts was intended
II
Must show that there was contact with another person
III
Intent cannot transfer from chattel to person
II
Mistake is not a defense

II
I

II

Battery
I
Intent
I
Purpose
II
Knowledge with substantial certainty
*Intent to touch, not necessarily to cause harm
I
Harmful or offensive contact
I
Offensive determined by reasonable person standard (objective)
II
With plaintiffs person
I
Anything connected with Ps person qualifies
II
Lack of consent
I
Informed consent
I.
Failure to disclose = negligence
II.
Performing action not consented to = battery

II
I

Assault
I
Intentional act
II
Apprehension of harmful or offensive contact
I
Reasonable apprehension (objective)
II
Lack of fear is not lack of apprehension
I.
David could assault Goliath
II
Need not be an actual harm (empty gun)
II
Gesture
III
Imminent or possible to be carried out
IV
Lack of consent

False Imprisonment
I
Intent to confine
II
Physical confinement
I
Threats of physical restraint are enough
II
Moral influence not enough
III
Can be actual or apparent barrier
II
Plaintiff is aware of confinement or harm
III
No reasonable means of escape

Intentional Infliction of Emotional Distress

I
Intentional or reckless conduct
I
Public figures
I.
May not recover unless malice or reckless disregard
for the truth
II
Extreme or outrageous conduct
I
Depends on context
II
Plaintiffs weakened mental condition is considered
III
Thick Skin rule
II
Conduct caused the emotional distress
III
Emotional distress must be severe

II

II

II

I
Show a spike or change in emotional distress
II
No contact or physical injury required
**Knowledge of special sensitivity**

II
I

II

I
II

Trespass
I
Traditional Trespass to Land
I
Intent
II
Entry upon land
III
Interference with exclusive possession
I.
Damage need not be shown
**Implied Consent**
I

Modern Trespass
I
Invasion
II
Intentional doing of act which causes invasion
III
Reasonable foreseeability that act would cause invasion
IV
Substantial damage
I
Nuisance applies when there is no substantial damage

Trespass to Chattel
I
Intentionally impairing condition, quality, or value of chattel
II
Moveable property
III
Damage
I
No nominal damages
II
Damages based on actual diminution of chattels value

Conversion
I
Intentional exercise of control of dominion
II
Serious interference with right of owner to control chattel
I
Extent and duration of actors control over chattel
II
Actors good faith or lack thereof
III
Duration of interference
IV
Harm done to chattel
V
Inconvenience and expense caused to owner
II
Compensation requires full value of chattel

Privileges
I

Consent as a Defense to Battery

I
Medical Arena
I
Limited to conduct consented to
II
Plaintiff must have had capacity to consent
I.
Infants, intoxicated, unconscious, mental
incompetents cannot
II
Facts can override consent
I.
Coercion, fraud, mistake, duress

II

Emergency can override necessity for consent

II
I

Sports Arena
I
There is implied consent for ordinary risks
I.
Look to customs of sport
II
Must show actor was reckless or acted intentionally to recover
III
No differentiation between amateurs and professionals
IV
Policy
I.
Want to encourage vigorous participation but also
self control

II
I

Other Arenas
I
Cannot consent to illegal acts (knife fight)
II
Aggressor doctrine
I.
A person may use force to defend himself
II.
Force must be parallel to force threatened

Defenses to False Imprisonment

I
Consent can be limited
II
Merchant can be privileged if
I
Reasonable belief of shoplifting
II
Detain in a reasonable manner
III
To pursue outside store, must be in hot pursuit, use reasonable force

Privileges for trespass to Land and Chattel

I
Protect land
I
Can use force if it is necessary
II
Must increase force incrementally
I
First ask to leave, then try to direct off property, etc.
II
Deadly force
I
Cannot use deadly force to protect property
II
Can only use to protect person

Necessity
I
Private Necessity
I
Allow trespass if necessary to preserve life or property
II
Must pay for damages to property that you incur during privileged
trespass
II
Public Necessity
I
What is necessary based on reasonable person standard
II
May destroy property for the good of the public
III
Apparent necessity
I
Was there a reasonable appearance of necessity?
II
Minority rule
I
Wagner
II
Allow compensation for destruction of property

II

Distinguish from eminent domain

I
ED must compensate
II
Necessity do not need to compensate

Duty
I
In General
I
Matter of Public Policy
I

Obligation to Assist Others

I
No duty to assist others
I
Law allows for nonfeasance
II
Law does not allow for misfeasance
II
Exceptions
I
Special Relationships
I
Carriers passenger
II
Employers employees
III
Innkeepers guests
IV
Jailers prisoners
V
Ship captains crew
VI
Spouses
VII
Parents children
VIII
Schools students
IX
Landowners visitors
II
Control of instrument causing harm

Privity
I
Duty does not extend beyond parties in privity
II
Way for courts to limit liability to a manageable degree
III
May be a duty not to actively harm third parties
Professionals
I
Must exercise reasonable care
I
Not liable for mistake if exercised reasonable care
II
Privity is no defense, may be liable to 3rd parties
Duty to Control Others
I
In general
I
No duty to control others
II
No duty to warn others of danger
III
Except special relationships
II
Professional Duty to warn others
I
Reasonable belief patient will cause harm
II
Specific victim identified
II
Negligent Entrustment
I
Entrustment can be direct or indirect
II
Entrustor knows or should have known entrustment would create
unreasonable risk
III
Applies to sellers, lessors, donors, lenders, bailors

II

II

IV
Irrelevant whether entrustment was for consideration or gratuitous
II
Negligent Infliction of Emotional Distress
I
Impact Rule
I
There must be impact or touching
II
Except zone of danger
II
Zone of Danger
I
P must be put in danger
II
Exception to impact rule
II
Parasitic Tort Rule
I
If there is some other tort, you can recover for related emotional
distress
II
Resulting physical injury
I
Does not have to be serious injury
II
Unique facts support recovery
I
Quill extreme situation causing extreme fear
II
Fear of Illness (Potter)
I
D breached duty
II
P exposed to risk of developing illness
III
It is more likely than not P will develop illness due to exposure
II
Dillon/Thing Rule
I
P is outside zone of danger
I
Close relation to injured party
II
Present during injury
III
Aware of injury
IV
Severe distress
II
Injury to Unborn Children
I
Child must be born alive
II
Child must be viable at time of injury
I
Renslow minority
II
Child is viable and born alive
III
Stillborn may recover sometimes
IV
Wrongful birth
I
May recover for extraordinary costs of special needs child
II
Wrongful conception
I
May recover if reason for sterilization was economic
Negligence

Formula
I
II
III

Duty
Breach
Cause in fact
I
Matter of science
II
Proximate cause
I
Matter of policy
II
Damages
Standard of Care

II

In General
I
Reasonable person standard
I
Negligence is omission/commission of act reasonable person
would do/would not do
II
Negligence Factors
I
Benefit
II
Burden
III
Frequency
IV
Gravity
II
Hands Formula/Cost-Benefit
I
Burden (B) < Probability (P) x Injury (L)
II
B<PxL
II
Costs < Benefits
III
No liability for accident if exercised reasonable care
IV
Emergency Doctrine
I
Reasonable care will be determined in context of the
emergency
II
Common Carrier
I
Standard of utmost care
II
Responsible for slightest negligence
III
Common Carrier
I
Regulated by government agency
II
Has monopoly on this type of transport
III
Transports lots of passengers
Reasonable Person
I
Disabled
I
Reasonable care of person with that disability
II
Children
I
Objective standard
I
**Different from child standard for intent**
II
Reasonable person of that age, intelligence, and experience
III
0-7, =no negl 7-14=likely no negl, 14 + =negligenc
IV
Children held to same standard of care as adult when involved
in inherently dangerous activity
Professional
I
Must be licensed
II
Standard of skill and knowledge of average professional
I
Objective
II
Need expert to show knowledge
I
Unless it is apparent to layperson
II
When expert of different specialty from D can testify
I
Of same school of medicine about which he testifies
II
Familiar with methods, procedures, treatments in Ds
medical community
III
NOT dependent on whether expert is in same specialty

II

I
II

Trial court judge has power to determine whether expert

permissible (Daubert)
II
Lack of success not necessarily negligence
III
Doctor may employ school of thought different from experts school
of thought if both are legitimate
IV
Informed Consent
I
Doctor must inform patient of material risks
I
Including risks he realizes after procedure
I
Doctor Standard (Rejected)
I
Patient must first ask to be informed
II
What is material is determined by doctor
I
Reasonable patient standard (Majority Rule)
I
What is material is determined by reasonable patient
II
To recover, must show
I. Material risk existed
II. There was a failure to disclose material risk
III. Disclosure would have caused patient to reject
procedure
IV. Injury
II
Subjective Standard (Rejected)
I
What is material is determined by specific patient
II
Defenses to Informed Consent
I
Disclosure would have detrimental effect
II
Patient incapable of giving consent (infant, disabled)
III
Emergency
IV
Risk is known to patient
V
Risk is remote
VI
Physician unaware of risk
II
Economic or Research Interests
I
Must inform patients of intentions to use patient as part
of research program or for economic gain
II
Any conflict of interest must be disclosed
II
Custom
I
Standard of care determined by industry
II
Courts can deem some customs careless
Relationship Between Judge and Jury
I
Judge sets standard of care for jury to follow
Violation of Statute (must be in class/hazard and violation resulted in your
damage)
I
Class/Hazard
I
P must be within class intended to be protected by statute
II
III
P must have been harmed by statute intended to prevent
II
Weight of statute
I
Negligence per se (Majority)
I
Unexcused violation of statute is negligence

II

II
Matter of law
III
Court directs verdict, jury determines damages
I
Evidence of Negligence
I
Jury may find negligence or not as they wish
II
Presumption of Negligence
I
Judge charges jury they are to find negligence
II
Jury must find negligence unless P overcomes beyond
preponderance of negligence
II
Strict liability
I
Child labor acts, pure food laws, child-gun laws
II
Excuses for violation of statute
I
Incapacitated
II
Child
III
Not know
IV
Emergency
II
Presumption of Due Care
I
If followed statute, presumed to have exercised due care
II
If statutory requirements inadequate, may not be presumed to have
exercised due care
I
Similar to careless customs
II
Dram Shop Acts
I
Seller of alcohol can be held liable when intoxicated customer
injures someone
Proving Negligence Before Judge and Jury
I
Evidence
I
Direct
I
Witness statement
I
Real
I
Gun that shot someone
II
Carpet that is slippery
II
Circumstantial
I
Evidence of A (not at issue) from which B (at issue) can be
inferred
I
Circumstantial Evidence
I
Prima Facie case (enough to get to jury)
I
Existence of dangerous condition
II
Notice of condition
I.
Actual notice
II.
Constructive notice
I.
Defect visible and apparent for sufficient
time for D to discover and remedy
II
Mode of Operation
I.
Methods are likely to create risk
II.
No need to show actual or constructive
notice
II
Defective Design

I
P must show a reasonable alternative design
II
Restatement
II
Res Ipsa Loquitur
I
The occurrence itself speaks of negligence
II
Functions to shift burden to D
III
Not a rule
I
Permitted inference from circumstantial evidence
II
Requirements
I
D had exclusive control of the instrument
I
Control may be shared by more than one person
II
Event does not happen in absence of negligence
I
Rarity of event alone does not speak of RIL
II
P was not contributorily negligent
II
Without RIL, P loses because there is no other evidence of
negligence
III
Weight of RIL depends on facts
I
Mere inference of negligence
I
Jury can accept or reject negligence
II
Presumption of negligence
I
Finding of negligence if D presents no evidence of CN
II
Presumption of negligence with shift in burden of proof
I
Someone will be liable, parties must step forward and
prove they are not the one liable
II
RIL does not apply
I
Calculated risk
I
Dr. knows the outcome is a risk of the procedure
II
Bad result
I
Risk of death whenever there is anesthesia
Cause in Fact
I
Tests
I
But for
I
Injury would not have happened but for Ds act
II
Substantial factor
I
Was Ds act a substantial factor in causing the injury?
II
Used for products liability
II
Concurrent Causes
I
If two or more causes, use substantial factor test
II
Failure to identify specific Actor
I
Joint and Several Liability
I
Must show parties acted in conspiracy OR
II
Single indivisible result
III
Joint
I
Can recover whole amount from either D
II
Several
I
Can recover portions from each D
II
Market Share Theory

I
II
III

II

Must join at least 50% of manufacturers in suit

Each D pays a proportion of damages according to its market share
Severally liable only
I
Cannot recover full amount of damages from one manufacturer
II
Cannot escape recovery just because P did not use your product
III
3 approaches
I
Hymowitz national market
II
Sindell local market
III
Wisconsin
I.
If can prove the pill you took was
manufactured by the company you sued, then can recover
full amount
II
Difficulties Proving CIF
I
Ds inaction may have led to injury
II
Recover based on how much Ds inaction reduced Ps probability of
survival
III
Probability of survival need not exceed 50%
IV
Expert testimony
I
Need experts to prove CIF in medical cases
II
General acceptance is not the test for accepting expert
testimony
III
Trial court judge is the gatekeeper for experts
Proximate Cause
I
In General
I
Used to cut off liability and control jury
II
Matter of policy
II
Basic Theories
I
Directness of injury
I
If some injury was foreseeable, then liable for any direct injury that
occurred
II
Remoteness
I
First building rule
II
Not liable for remote injuries
II
Thin Skull
I
D must take P as he finds him
II
May be liable for aggravating a preexisting condition
II
Foreseeability
I
Liable if specific injury was foreseeable
II
Foreseeable small risk
I
Consider the knowledge and experience of the person taking the risk
II
Reasonable person with that knowledge and experience would have
realized there was a risk
III
Reasonable person with that knowledge and experience would have
prevented the risk no matter how small
II
Foreseeable Plaintiff (Zone of Danger)
I
Palsgraf majority

II

II

II

II
P must be within zone of danger
II
Practical Politics
I
Start with duty to whole world
II
Limit with politics/policy
II
Foreseeable Class
I
Owe duty to foreseeable class of Ps
Intervening Causes
I
Intervening cause alone does not sever liability
I
Superseding cause severs liability
I
Usually criminal act
II
If injury from intervening cause is foreseeable, then it does not cut off
liability
III
If the result is foreseeable, then the unforeseeable cause will not cut off
liability
IV
Rescuer
I
As long as rescue is reasonable, liable for injuries to rescuer and
injured party
II
Rescue does not cut off liability
III
Firemans rule
I
Professional rescuer may not recover from negligent
landowner
II
Suicide
I
Not superseding cause if result of irresistible impulse
II
Criminal Act
I
Not superseding if foreseeable
II
Social Host
I
Dram shop
I
Bar liable for injuries when serving intoxicated customers
II
Kelly v. Gwinnell
I
Radical case
II
Social host liable when serving alcohol to someone visibly
intoxicated
Economic Loss
I
General rule
I
No recovery for economic loss
I
Exception
I.
Physical damage to property
II
Minority
I.
Recover for particularly foreseeable class
Dean Greens Theory
I
Eliminate PC rules
II
3 Questions
I
Is there CIF?
II
In there negligence?
I
Could D, as reasonable person, foresee some injury to P?
II
Is there a duty?

I
II

II

Does Ds duty extend to this injury for this P?

Factors
I.
Economics
II.
Administrative role of courts
III.
Loss shifting
IV.
Insurance
V.
Impact upon society
VI.
Precedent
VII.
Prevention
VIII.
Justice

Strict Liability
I
Rylands Elements
I
Dangerous instrumentality brought onto Ds property
II
Dangerous instrumentality escapes Ds property
III
Dangerous instrumentality is non-natural
I
Social policy determines natural v. non-natural
I
Character of instrumentality
II
Place and manner in which instrumentality is used
III
Relationship of act to surroundings
II
Dangerous instrumentality causes damage to Ds property
II
Abnormally Dangerous Activities
I
Restatement 520
I
High degree of risk
II
Likelihood harm will be great
III
Inability to eliminate risk with reasonable care
IV
Activity not manner of common usage
V
Inappropriateness of activity to place where it happened
VI
Value of activity to community
II
Blasting
I
Usually recover only when there is physical invasion of property by
materials from blasting
II
Spano
I
Recover when there is no physical invasion and only damage from
concussion
II
Defenses
I
Assumption of risk
II
Proximate cause
III
Act of God
I
Except where foreseeable
II
NOT exercised reasonable care
III
NOT contributory negligence
Defenses
I
Contributory Negligence
I
P is totally barred form recovery
II
Last Clear Chance Rule
I
If D had last clear chance to avoid injury, it overrides CN

II

II

II

Comparative fault
I
Pure
I
P recovers in proportion to fault
II
Modified
I
Pr recovers in proportion to fault as long as his fault is less than Ds
Assumption of Risk
I
Elements
I
Actual or constructive knowledge of risk
II
Appreciate character of risk
III
Voluntarily accept risk
II
Ordinary risks vs. extraordinary risks
I
P assumes ordinary risks
II
P does not assume extraordinary risks
II
Express Assumption of Risk
I
Exculpation Ks
II
Do we uphold express assumption of risk?
I
Duty to public
II
Nature of service performed
III
Whether K was fairly entered
IV
Whether language was clear and unambiguous
II
Hospitals and Express AR: Tunkl Factors
I
Business for public
II
Great value to public
III
Essential/necessary
IV
Sellers decisive bargaining strength
V
Standardized K of exculpation
VI
No provision to pay extra for gain from sellers negligence
II
Sports
I
Assume normal risks of sport
II
Only recover for intentional or reckless acts
II
Assumption of Risk and Comparative fault
I
Express
I
Not compared
II
Implied
I
Primary (no duty)
I.
AR no defense
II
Secondary (duty)
I.
Reasonable assumption
I.
AR compared
II
Unreasonable
I.
AR not compared
II
AR and SL
I
P will not have assumed the risk if he is on his own property
II
Animals?
Statutes of Limitation
I
Discovery rule

II

Action accrues at the time P has discovered the injury and the source
of the injury
II
SOL begins at time of discovery
II
Statutes of Repose
I
Sets absolute time limit in which suit must be filed
II
Can override discovery rule
III
Sometimes upheld, sometimes overruled
Landowners
I
Classes of Ps (Majority)
I
Trespasser
I
On property without consent of owner
II
No duty of care unless owner discovers presence of trespasser,
therein some duty arises
II
Licensee
I
On property with owners consent, but for own purpose
II
Not full blown duty of active reasonable care, but if owner knows of
presence, then some duty arises
II
Invitee
I
Public invitee
I
Invited as member of public
II
Business visitor
I
Invited for owners economic gain
II
Duty of reasonable care
I
Includes active inspection to make safe
II
If obvious danger, no duty
III
Exception: property owner can foresee harm and invitee may
be hurt even if he exercises reasonable care
II
Trespassing child
I
Special class
II
Duty owed if owner can anticipate child might enter and be harmed
III
Railroad turntable doctrine
IV
Attractive nuisance is related, but nuisance need not be attractive
under turntable doctrine
II
Persons outside property
I
Owe duty if it is foreseeable that person will be injured
II
Classification can change as you enter different parts of property
II
Trees
I
Rural no duty
II
Urban duty
II
Water
I
Natural no duty
II
Artificial duty
II
Rowland (Minority)
I
Throw out classes
II
Owe duty to everyone
III
Modified Rowland

II

II

I
Owe duty to everyone except trespasser
II
Foreseeability
I
Owe duty when harm is foreseeable
Multiple Defendants
I
Joint and Several liability
II
Different from Joinder
I
2 types
I
Party acted in concert with another
I
Requires agreement
II
Single indivisible result
II
Joint
I
Can recover whole amount from either party
II
Several
I
Each party is liable in proportion to fault
II
Problems
I
What is one of the jointly liable parties is immune from liability?
II
Corporation has to bear more than its proportion of fault
III
Led to tort reform in FL getting rid of joint and several liability
II
Reforms
I
If severally liable, reallocate damages if judgment against one D is
uncollectable
II
Some states have abolished joint liability (majority)
III
Jury can weigh fault of any person involved, not just parties
I
Person can include unidentified entities not part of suit
II
Problem: encourage fraud in court because you can make up some
person who was involved
II
GA
I
No more joint liability
II
Unless P is not contributorily negligent (maybe)
III
Only several liability
Damages
I
Punitive damages
I
Rare
I
2% of cases
II
Generally small
I
Average $36,000
II
3 part test for determining when punitive damages are excessive in
violation of due process clause (BMW v. Gore)
I
Degree of reprehensibility
II
Ratio of punitive damages to compensatory damages
I
Ratio must be a single digit
II
Ex: 2x, 3x, 4x9x allowed, anything 10x + excessive
II
Sanctions
I
What are the fines in the jurisdiction for this type of violation?
II
Are punitive damages dramatically higher than state sanctions?
II
Tort reform and punitive damages

I
II
III

II

Caps on damages
Part of punitive award goes to state
Bifurcated trials
I
1st part of trial goes to liability determination
II
2nd part of trial goes to damage determination
II
Tort reform favors corporations
II
Damages Easily and Commonly Recovered
I
Lost Wages
II
Medicals
III
Pain and suffering
IV
Damage to property
II
Theory of Damages
I
Return P to position he was in before injury
II
Collateral Source Rule
I
P can recover in lawsuit and from insurance company for the same
loss
II
Allows P to recover twice
III
P bought and paid for insurance so he is entitled to it
Wrongful Death
I
Death and End of Suit
I
Suit used to end when plaintiff died
II
Wrongful death cause of action created to remedy this problem
I
Without the wrongful death statute, the cause of action fails due to
death of P
II
Wrongful Death Statute
I
When P dies, there is new cause of action in favor of decedents
beneficiaries
I
Spouse
II
Children
III
Parent
II
Theory of Recovery
I
Compensate beneficiaries for loss of economic benefit beneficiaries
would have received as support from decedent
II
Recovery based on what decedent would have earned during his life
I
No recovery of emotional distress, pain and suffering
II
Test is pecuniary loss to survivors
III
Recovery permitted for loss of child because of contribution to
family life
II
Survival Statutes
I
Personal injury action survives after P dies
II
Causes of action and defenses can be maintained after Ps death
I
Except defamation
II
When there are Wrongful Death and Survival Statutes
I
Allocate pain and suffering and loss of earnings up to death to survival
action

II

Loss of economic benefit to survivors after death allocated to wrongful

death action