TORTS Fall,2009 Prof.

VanTassel

What is Tort Law? Torts are wrongs recognized by law as grounds for a lawsuit. Harm required Criminal Law vindicates Public Rights; Tort Law redresses individual rights Aims and Approaches in Tort Law Some Broad Aims (a) Morality or corrective justice: Hold D liable for harms they wrongfully committed (b) Social Utility or Policy: The good-for-all-of-us view (c) Process: Must be the kinds of rules judges and juries can understand. INTENTIONAL TORTS 5 intentional torts 1) Battery: elements 1. Intent to touch 2. Intent to harm There kinds of intent: i. actual intent ii. Transferred intent: Davis v. White iii. Substantial certainty intent 3. Actual touch 4. Actual harm

a.) Requiring fault: McAfoos (no fault, no battery) i. Van.Camp v. McAfoos: 3 year old Mark McAfoos struck Van Camp - a pedestrian on a public sidewalk - with his tricycle. VanCamp sued for battery, trying to hold Mark liable, without claiming he was at fault. Children of young age are liable for their own torts as long as all requisite elements are present. Court granted motion to dismiss for failure to state a claim since Mark could not be held liable for battery if he had no fault and fault was not claimed. 1

I.Doctrine of transferred intent : One who intends battery is liable for battery even if he caused damages to a third person instead of the intended victim. i. Davis v. White: Intending to shoot a different person, Davis missed and hit White instead. Davis filed for bankruptcy protection which would free Davis for liability under a negligence tort. Court held he was liable for battery since his act was intentional, even though he did not shoot the person he intended to. - transferred intent. II. Substantial certainty doctrine: i. Garrat v. Dailey: (see below) - acting with substantial certainty that touch and/or harm will occur IS INTENT. ii. Cohen v. Smith. (see below) even though Smith was trying to help Cohen and he did not intend to harm her, if he did know that his touch would have been harmful to her in any way, he intended that harm. Infancy, mental impairment and intent: People with limited mental abilities as very young children and mentally ill are not automatically exempted from responsibility for their torts. Intent in those cases is usually hard to prove but if it is proven such individuals might be held liable for battery. i. Infancy: Walker v. Kelly: 5 yr. old girl ( ) throws rock at boy ( ). does so at the instruction of 12 yr old. Trial court receives conflicting testimony and accepts that did not intend to strike . Where a tort requires a particular state of mind, and an infant is incapable of forming such a state of mind, he cannot be found guilty of the tort. Remember: Rule of sevens. (Children may not be liable for torts, because of state of mind) Mental impairment White v. Muniz: Alzheimer patient ( ) punches nurse ( ) who is attempting to change her diaper. A jury can find a mentally deficient person liable for an intentional tort, but in order to do so, the jury must find that the actor intended offensive or harmful consequences. (Mentally deficient may or may not be liable for torts, because of state of mind/mental grasp)

ii.

iii.

Mental impairment does not automatically avoid liability Polmatier v. Russ:

3. Actual touching - Not limited to body to body touching. 3 kinds of touching i. Actual touching ii. Garrat v. Dailey touching - D set force in motion which caused the touch iii. Extended personality Doctrine of extended personality: Whatever object is in contact with the body of a person is part of their personality and touching that object would (for the purpose of sustaining a battery claim) be considered touching of the person. Fisher v. Carousel Motor Hotel. - Fisher, African American, was about to be served his food in the Carousel Motor Hotels restaurant when the manager came to him, pulled his plate from his hand and said that black people wont be served in that establishment. Court held defendant liable for battery - the plate was extension of Fishers person +D caused emotional harm to Fisher. Leichtman v. WLW Jacor Communications, Inc. D. talk show host blew smoke in Ps face during a radio show on which P was talking about the negative effects of smoking and secondary smoke. Court held D liable for battery: intentionally blowing smoke in Ps face did constitute touching. Harm was offence. Garrat v. Dailey touch: when a person puts a motion in force which causes a touch (and/or harm) they are liable for touch (and/or harm) Garrat v. Dailey: Garrat 5 y.o. boy, pulled a chair form underneath Dailey, just when she was about to sit on it. Dailey fell and suffered serious injuries. Garrat would be liable for the harm, since he set in motion force that caused P to fall. Court found Garrat not liable since he did not intent the harm because of his young age he did not have certainty as to the fact that him pulling the chair would cause harm to P.

4. Actual Harm: The harm might be 1. physical or 2. offensive to reasonable sense of human dignity; Snyder v. Turk: The D, a surgeon, performing an operation, becomes annoyed with the P - a nurse in the operating room. Believing P handed him wrong instrument he pulled P over the surgical opening saying: Cant you see where I am working, I am working in a hole, I need long instruments. D was found liable for battery since his act was offensive and harmful to reasonable sense of human dignity. 3

Cohen v. Smith. P was about to undergo a cesarean section. She told her doctor that due to her religious beliefs he can not been seen unclothed by a male. During the surgery she was seen and touched unclothed by the D. Ds motion to dismiss was denied. Court held that Cohen might have a battery claim since the touch was offensive to her dignity. Respondeat Superior: Employers are not liable for the intentional torts unless they are facilitating or promoting its business. --------------------------------------------------------------------------------------------------------------------------B. ASSAULT 1.Elements of Assault 1. intent 2. to place plaintiff in imminent apprehension of a touching that is harmful 3. a reasonable person would have been placed in such apprehension1 4. the plaintiff was actually placed in such apprehension 5. mere words are not sufficient; need overt act Summary of Restatement 2d Torts, 21 -32

Apprehension does not equal fear; it means awareness of imminent harm Imminent harm Dickens v. Puryear: Dickens attacked by the father of a 17 year-old girl who he was having drugs and sex with. The court found that D was not guilty of assaulting Puryear b/c the threats of harm were in the future; there was no imminence. The assault claim did not hold up but Supreme Court reversed the summary judgment granted by the Trial because they found that P might be able to Imminent: mere words are not enough idea. You need overt actions that help to establish imminence. Words can be used to create apprehension of imminence if in combination w/ an overt act (clenching a fist) a.Words can sometime negate imminence: If I wasnt such a nice guy, Id beat you up knowledge 4

of the act is requiredunlike in battery where no knowledge of touching is required. ii.Transferred Intent: Doctrine applies. i. Altieri v. Colasso: Kid threw a rock to scare one and hit another with projectile. The principle of transferred intent applies to assault as well as battery ii. Cullison v. Medley s called a pervert. One kept grabbing at a gun strapped to his thigh, as if to shoot the plaintiff. Such facts are sufficient to show assault for which mental distress damages could be recovered. (Intentional infliction of mental distress)

Doctrine of Transferred Intent: Applies to assault as well as battery. If D intends assault to one and bodily injury results to another, it is battery actionable by the injured person. Note: Two types of transferred intent: 1. Transfer of tort: You mean to assault and instead batter 2. Transfer of victim: You mean to batter one person, instead hit another The mere presence of gun - creates apprehension for threat + words + over act (touching shaking etc. of the gun) = strong apprehension of harm C.FALSE IMPRISONMENT i.Elements of false imprisonment: FALSE IMPRISONMENT: the D is liable when the D confines the P intentionally P may be restrained by acts or by words which P fears to disregard Must be aware of the confinement at the time, unless there are actual damages. Without lawful privilege Without the P's consent. Within a limited space. P must not have any actual knowledge of a reasonable means to escape for any appreciable period of time, however short. Restatement 2d Torts sections: 35, 36,

Transferred Intent: doctrine applies. Mc.Cann v. Wal-mart Stores p.48 and her two children were shopping in Wal-Mart. As they were leaving store, two Wal-Mart employees (security). said they had records of children as shoplifters and they had to come with them, that the police were being called. At one point told one of the children, he could not leave to go to the bathroom. False imprisonment: Mere threats of physical force can suffice. Threats may be implicit as well as explicit. Confinement can be based on a false assertion of authority

D.TORTS TO PROPERTY MISTAKE IS NO DEFENSE i. Trespass to land Liability for Intentional Intrusions on Land One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally (a). Enters land in the possession of the other, or causes a thing or a third person to do so, (b). Remains on the land, or (c). Fails to remove from the land a thing that he is under a duty to remove. Restatement Torts 2d 158 Policy: Protects a Ps interest in exclusive possession of their land. -------------------------------------------------------------------------------------------------------------------Ways ii.Conversion Of Chattels The Restatement 222A defines conversion as Only very serious harm to the property or other serious interference with the right of control constitutes conversion. Damage or interference which is less serious may still constitute trespass to chattel. Purchasing stolen property, even if the purchaser was acting in good faith and was not aware the seller did not have title, constitutes conversion by both the seller and innocent buyer.

Policy: designed to protect a person against interferences w/ his right to possess his chattels. Any act will suffice 1.Intent to exercise dominion is required. 2. Modes of converting an object: anything that shows _dominion _ such as taking, using substantially, altering, destroying, selling, or buying will suffice. 2.What may be converted: tangible personal property. 4. Serial conversions: there may be several converters of P _s goods, one buying from another. Each is liable. 5. Bona Fide Purchasers: A bona fide purchaser from a thief does not get good title; he is a converter. However, if A by fraud gets good title form P, A _s transfer of the goods to B who is a bona fide purchaser for value will transfer good title to B. B is not a converter although A is. 7. Remedies: damages for the value of the goods at the time of the conversion is the normal rule, varied some what with property having fluctuating value. Replevin (which is a cause of action used to actually recover the chattel) is also available. Kelly v. LaForce: D Police officers helped 3d party oust P from their pub and to take away chattels from it; D found guilty of conversion. D acted with intent to deprive
the owners of their property. Under Massachusetts law, intentional deprivation of property from the rightful owner is sufficient to demonstrate "dominion or control."

Elements of conversion: (a) Intent: Conversion is an intentional tort, but there is no requirement that D is conscious of wrongdoing (b) Substantial Dominion over property: (i) Extent and duration of control (ii) Ds intent to assert property (iii) Ds good faith (iv)Harm done (v) Expense or inconvenience done (c) Property that may be converted: (i) Traditional common law said only tangible property 7

(ii) Neither land (real property) nor paper money and promissory notes (intangible property) (iii) Today stocks or bonds can be converted (d) Serial Conversions: Can only sue one of converters, not both or all (e) Bona fide owner: If D uses trick or fraud, can still be bona fide owner iii. Mistake: an innocent mistake does not diminish your intent to exercise dominion and control (Burning someone elses Torts book, while intending to burn your own). ii.Trespass to Chattels: Intermeddling with a chattel of another person, perhaps even dispossession, but something with falls short of conversion. Ways of Committing Trespass to Chattel (1). A trespass to chattel may be committed by intentionally: (a). dispossessing another of the chattel; or (b). using or intermeddling with the possession of the chattel in the possession of another. (2). One is liable for Trespass to Chattels if: (a). he dispossesses the other of the chattel; or, (b). the chattel is impaired as to its condition, quality or value; or, (c). the possessor is deprived of the use of the chattel for a substantial period of time. Restatement Torts, Second 217, 218. Policy: i.Prima Facie case: 1.Act of the D that interferes w/ plaintiffs right of possession in the chattel. a.Some act that tends to show that the D is treating the chattel as his own (selling it, burning it, etc) b.We can also exercise dominion when we control access to the property. 2.Intent to perform the act bringing about the interference w/ Ps right of possession a.The intent required is only to exercise substantial dominion over the property. b.***You dont need to know whose it is 3.Causation 4.Damages: Actual damages are required a.Liability: Not fair market value but liability for the damage actually done. b.Distinction between the conversion and trespass to chattels- measure of damages: i. ii. Trespass- when the owner of a chattel wants it back + damages caused Conversion- When the chattel is destroyed, badly damaged or made unusable by D Example: If you keep someones car in your garage against his will for a half an hour, you probably wont be laible for conversion, but you may be liable for trespass.

II.DEFENSES TO INTENTIONAL TORTS PRIVILEGES (1) Protecting Against the Apparent Misconduct of the Plaintiff: pp. 60-66. 1. Self-Defense. Self-Defense Allows D to use force against P when D reasonably believes that P is committing or is about to commit an intentional tort against D (no retreat necessary).' The person who uses force bears the burden of proving that the circumstances reasonably justify its use'The person who uses force bears the burden of proving that the amount of force used was reasonable to protect self' Retreat, if reasonable, is required before the use of deadly force, unless D is in own home. Restatement 2d 63, 65 2. Defense of Third Persons. The scope of the privilege that the rescuer has is the same as the victims. In some states reasonable mistake would prevent from liability, but in many states the risk falls on the rescuer and if he/she made a mistake, even a reasonable one, he/she may be held liable 3. Arrest and Detention. Great Atlantic & Pacific Co. v. Paul Great Atlantic & Pacific Tea Co. v. Paul Paul ( ) went shopping at A&P. Store manager thought he was shoplifting. forced to march to the managers office. had not left store, nor had checked to see if item was still on shelf. Any property owner (including a store owner) has a common law privilege to detain against his will any person he believes has tortuously taken a chattel (property). If detainee does not have property, than arrester is liable for false imprisonment.

Rule: Shopkeepers privilege A shop keeper has the same privilege as a private person = a privilege to arrest without warrant when: a. there is a felony being committed in the arresters presence; or, b. when a felony has been in fact committed i. whether or not in the arresters presence, and ii. the arrester has reasonable grounds (probable cause) to believe the person arrested has committed it; or, c. a misdemeanor is being committed in the 9

presence or view of the arrester which amounts to a breach of the peace. Breach of the peace = disorderly, dangerous conduct disruptive of the public peace Restatement 2nd Torts 120A (1). One who reasonable believes that another has tortiously taken a chattel upon his premises (2). or has failed to make due cash payment for a chattel purchases or services rendered there (3). is privileged, without arresting the other, to detain him on the premises (4). for the time necessary for a reasonable investigation of the facts.

i.Peters v. Menard was a shoplifter, stole a drill from a store and ran away in his car; the stores employees were chasing , in the course of the chase run into the river and eventually drowned;

The court granted summary judgment got found they had shop-keepers privilege; s
Notes: shopkeepers privilege in Wisconsin is not limited to the premises of the shop but also to actions necessary for reasonable investigation. 4. Defense of Property and Recapture of Chattels. i.Katko v. Briney, p. 62 owned an abandoned farmhouse. They rigged a spring-loaded shotgun to go off if a burglar entered the house. Burglar did, gun went off, blowing off s right leg. Possessor of land cannot do indirectly or by mechanical device, what he could not do in person. No privilege to use force intended or likely to cause death or serious harm to another against person, if person is entering premises, meddling with chattel unless intrusion threatens death or harm to occupiers of premises. (Life more precious than property). Notes: proportionality rule: Deadly Force To Prevent or Terminate Intrusion on Property R2 79 Use of deadly force is is privileged ONLY IF the actor reasonably believes the intruder, unless expelled or excluded, is likely to cause 10

death or serious bodily harm to the actor or to a third person whom the actor is privileged to protect. ii.Brown v. Martinez, p. 64 15 y.o. boy + several other boys entered at night s garden in order to steal watermelons. wanting to scare them shot in a direction opposite of the direction thought the boys were. was mistaken as to the direction and shot causing serious bodily injury; Court found was guilty of battery since he did not have the privilege to use deadly force to protect his property rights. Restatement 2d Torts 65 Defense of Dwelling One who is attacked in his dwelling place may await his assailant and use deadly force to repel him though he could prevent the assailant from attacking him by closing the door and so excluding him from the premises. But the mere fact that a man is threatened with an attack while he is within his own dwelling place does not justify him in using deadly weapons if he can avoid the necessity of doing so by any alternative other than flight. A man can no more justify using deadly weapons when he is in his own home than he can when he is on a public highway, if he can avoid doing so by complying with a demand, other than a demand that he retreat or give up possession of his dwelling or permit an intrusion into it. R2 81 1.An actor is privileged in defense of his land or chattels against intrusion: (a) to do an act. (b) which is intended to put another in immediate apprehension of a harmful or offensive contact or confinement. (c) which is an excuse of that (d) if hes act is intended and reasonably believed by him to be likely to do no more than create such an apprehension. --------------------------------------------------------------------------------------------------------------------------R2 82 11

Effect of excessive force: If the actor applies a force to or imposes a confinement which is in excess of that which is privileged the actor is liable for so much of the force or confinement that is excessive. The Special Case of Consent, p. 66-73. Self defense granted by society Consent - privilege granted by P Would a reasonable person believe they had a permission a consent had been given? (question to the jury) Objective test CONSENT: III.Express consent (by words) IV.Implied consent (by acts) A. Defendant's Reasonable Belief 1. Belief based on objective manifestation 2. Custom 3. Failure to object. If a person bases their perception of consent is based on custom, the person who is subjected to the touch must EXPRESSLY STATE their objection to the custom ex. If you shake sb's hand and they did not say they are germophobic there is no battery; if they said they do not want to have their hand shook there is battery. a) Capacity: Reavis v. Slominski Reavis ( ) worked for Slominski ( ) at dental clinic. Two had intercourse for number of years. left office and worked elsewhere. After 13 years starts work with , with understanding would leave her alone. New Years Eve party, two get drunk, starts kissing her. says no, then Oh hell. testified that as a result of sexual abuse as a child, has an abnormal inability to refuse sexual intercourse. Consent is not effective if a person lacks capacity to give consent.

b) Scope of consent i.Ashcroft v. King, p. 69 consented to surgery on the condition that only family blood was transfused to her in the course of the surgery. Other blood was transfused. was found guilty of battery since the transfusion exceeded the scope of the consent. ii.Kennedy v. Parrott, p. 70. consented to an operation for appendicitis. During operation, Dr ( ) found some enlarged cysts and punctured them. sued since performed an unauthorized 12

extension of surgery. Judge ruled for saying in major internal operations, both pt and Dr. cannot know exact condition until pt has been anesthetized. Consent in surgical procedures, unless otherwise noted will be general, and surgeons my extend operations to repair abnormal or diseased conditions.

Note: This is a 1956 case, the tort system has now changed when it comes to scope of consent in such situations; the doctor had more discretion before, now the patient has to consent more often (maybe because the medicine is more advanced and diagnoses are more accurate) c) Doe v. Johnson, p. 71 , Jane Doe, had sexual intercourse with Earvin (Magic) Johnson, Jr. ( ) and contracted HIV. knew or should have known that he had a high risk of infection, due to his promiscuous lifestyle. did not warn , nor did he use a condom. One, who knows he has a venereal disease and knows that his partner does not know of his infection, commits a battery by having sexual intercourse.

(2) Privileges Not Based on the Plaintiff's Conduct, p. 73-78. Public and Private Necessity (A) Public Necessity i. Surrocco v. Creary, p. 74 during a fire s house was burned down by to prevent from spreading fire, sued for the chattels could have taken out of the house; Conversion of chattels we did not just damage it, property is all gone Privilege: public necessity: paid for the benefit to society D was given privilege by SOCIETY (v. other privileges given by the plaintiff), the P was who bore the cost of the loss. P claimed there was a mistake and the did not need to blow up the house. Even if it was a mistake it was a good faith mistake, so to public policy matter: if it was a reasonable mistake people would be discouraged to prevent disasters; Compensation for actual damages iii.Wegner v. Milwaukee Ins. Co., p. 75 Suspected felon entered house of to evade police. fled house and informed police of criminal. SWAT team came in and after a few hours, lobbed, tear gas grenade (25) and flash-bang grenades, causing extensive damage to s house. sued City of Minneapolis and insurance (Milwaukee Mutual), claiming by police actions there was a taking of land for public use by city. Private property (Land, real property) shall not be taken, destroyed or damaged for public use without just compensation, first paid or secured. This imposes a condition on the states inherent supremacy over private property rights. (Public necessity taking/damaging private (real) property must be compensated)

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i.Notes: When having the privilege of public necessity may not have to pay for the trespass. However, in general, the property owner should be compensated for the damages to their property in event of acting in public necessity. There is 2 cases when non-compensation is justifiable 1) when the destruction of the property was inevitable anyway and 2) when the property was endangering others (example a building about to fall might be removed, contagious bedding burnt to prevent spreading of the decease, etc.)

(B) Private Necessity i. Ploof v. Putnam, p. 77 was in his boat with his wife and kids, there was a storm and moored his boat to s boat on s island. sent his servant to unmoore the boat. The boat was destroyed and the people injured; found liable for trespass to chattels. Court found for . did not have the privilege to unmoore the boat, since acted out of private necessity -> was not a trespasser did not have the privilege to trespass to s boat. Notes: Proportinality Rule Life and limb always more important than property ; We do not even need to use the private necessity defense since the owner of the dock was exceeding his property defense privilege. what that privilege means is: 1. The is no liable for damages when no harm is done 2. is not called a trespasser 3. The landowner has no privilege to push him back into the lake; If, however, caused the necessity or the emergency, might lose the immunity of liability but still retain the privilege to shelter on the land as long as the alternatives were unsafe. Serious and imminent threat are required to invoke the privilege (for examples a homeless person can not live in a private house, but they can shelter there in a snowstorm that threatens their life) The necessity has to be legal (for ex protestors against abortions cannot trespass to an abortion clinic, claiming they need to prevent an abortion, which is legal). When causes damages, even if he had the privilege of private necessity, they still have to pay for the actual damages

iv.Vincent v. Lake Erie, p. 78 In a storm, the captain of a ship had been tied to s dock and was unloading goods. A storm arose so the captain decided to renew the lines that held the ship to the dock and damaged the dock; had privilege to tie the ship to the dock (no trespass) but had to pay for the actual damages caused. V.NEGLIGENCE: Legal Elements of a negligent claim 5 ELEMENTS 1. Duty: reasonable care under the circumstances Emergency Lyons Dangerous instrumentality/hazardous activity Stewart Physical disability Shepard, Robert (blindness) 14

 Kids (of like age, experience, education etc.) Rudes v. Gotchalk NOT mental disablity. Creasy v. Rusk Special knowledge (Hills v. Sparks) 2.Breach: i) What risk should a reasonable person should have perceived? ii) What steps reasonable person would have taken to avid the risk? Who decides answers to the two? a. Jury: common sense i. Uses direct evidence ii. Use circumstantial evidence iii. Risk utility formula : risk v. cost iv. Custom b. Judge: as a matter of law c. Legislative: per se (imposed by statute) 2 steps Step 1: Is the P in the class of people the statute had designed to protect? Step2: Is the injury the type of injury that the statute was designed to protect? Excuses: see Impson v. Structural metals p.109 3. Legally cognizable damages 4. Cause: in fact 5. Proximate cause ------------------------------------------------------------------------------------------------------------------(1) DUTY: Social K people in society owe each other reasonable care under the circumstances The General Duty of Care: The Due Care or Prudent Person Standard, pp. i. Circumstances a. Circumstances External to the Actor 1. Special Danger: Stewart v. Mott, p. 85 (gasoline case poured gas in s carburetor while helping him fix his car, got injured is liable?) issue: is there a higher standard of extraordinary care when handling dangerous instrumentalities. Holding: No; Rationale=Rule: R2nd of Torts 298 The care required is always reasonable care. The standard never varies, but the care which it is reasonable to require of the actor varies with the danger involved in his act and it is proportionate to it. The greater the danger, the greater the care which must be exercised. 15

2. Emergency: Lyons v. Midnight Express wife was killed when she pulled out in her VW van by a truck. appealed because of instructions to jury concerning the sudden emergency doctrine. Duty, breach of duty, causation and harm are the elements of a negligence claim, all of which must be proven for liability. With or without the emergency an emergency, the standard of care a person must exercise is still that of a reasonable person under the circumstances. (No lesser standard of care, than reasonable care)

Dicta: the court believes that the sudden emergency instruction is useless in general since it just applies the reasonable care standard in case of emergency, so it is redundant.; Negligent act but harmless was not the but fore cause. Sudden emergency doctrine: Rule of law which states that a person confronted with a sudden and unexpected peril, not resulting form that person's own negligence, is not expected to exercise the same judgment the law requires from a calmer person, but they should still act as a reasonable person would act under the same conditions b. "Circumstances" in the Actor's own Characteristics 1. Physical limitations of the actor i. Shepard v. Gardner, p. 91 was vision impaired and tripped on a raised slab in the sidewalk in front of the business. argued that a person with normal vision might have seen it. (no contributory negligence). A person with a physical disability is not required to exercise a higher degree of care than a person of no disability. (The standard of care would be a reasonable person with the same impairment). ii. Roberts v. State of Louisiana was knocked down in a hallway of the Post Office by Burson ( ), a blind man who operated a concession stand in the post office. The physical characteristics of the reasonable man is said to be identical to that of the actor. A person with a disability is entitled to live and have allowance made by others for his disability. A man who is blind is not required to do the impossible by conforming to physical standards he cannot meet. (Question of negligence by the handicapped) (Excused violation for negligence per se: Violation is reasonable because of actors incapacity) iii. Creasy v. Rusk, p. 92 Rusk ( ) was an Alzheimer patient at a nursing home. was often combative and would hit staff members as they tried to care for him. was a nurse, attempting to put to bed. kicked in the left knee and hip area, and yelled from pain to lower back and left knee

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People with mental disabilities are commonly held liable for their intentional and negligent torts. No allowance is made for lack of intelligence, ignorance, excitability or proneness to accident. (Mental deficiency does not relieve an actor from liability for negligence) iv. Public Policy: C.Between 2 innocent parties the one who caused the loss should pay CI.Incentive for the responsible persons to restrain CII.remove inducement to fake disability CIII.avoids administrative problems cost and time of the court and jury trying to figure to what extent is the disability a factor. CIV.When a person with disabilities chooses to live in the society and perform the same activities as everyone else, they should pay for the harm they cause. 2. Special Ability, Knowledge, Experience v. Hill v. Sparks, p. 95 earth moving machinery, knew the risks because he had special knowledge but still disregarded them and was killed by the machine found liable for negligence he owed higher amount of care due to his special knowledge 2. Infancy i. . Robinson v. Lindsay, p. 97 p. 97 snowmobile accident; is an 11 yr old girl, who was riding on the back of snowmobile driven by . lost full use of her thumb in a snowmobile accident. When the activity a child engages in is inherently dangerous, the child should be held to an adult standard of care. Public Policy: when we hold the child responsible up to an adult standard of reasonable care, we are trying to encourage the parents of the child to not allow the child to engage in the dangerous activity at all;Most people would presume that a person engaged in an adult activity to be an adult and we base our reasonable care on that presumption; respondeat superior in this case parents are held responsible for the conduct of their kids; ii. Hudson-Conner v. Putney, p. 98 similar case but the kid drove a golf cart. Since golf cart, unlike a snowmobile is not inherently dangerous and does not require adult skills, the child is held to reasonable child standard of care, and not an adult. b) The General Duty of Care: Specification of Duties - Negligence as a Matter of Law, pp. 100-111 i) Judicial Treatment of Specific Duties (1) General duty is specified to a particular requirement of action 2) Marshall v. Southern Ry. Co., p. 100 P drives; does not see that road narrows because his vision by the lights, hit the bridge; sued D P found to be contributory negligent because you have to always drive within the range of your headlights (duty) case decided as a matter of law; (non suit 12(b)(6) reasonable minds couldn't differ so the matter is resolved as a matter of law; 56 motion for summary judgment should have been that, since the judge looked at the circumstances 17

(1) Juries could judge the conduct of the actor: (1) Intuitively in a conclusory fashion It seems negligent to me Chaffyn v. Brame (2) Solely by statutory prescriptions such as speed limits (negligence per se, i.e. the legislature has set the minimum acceptable conduct.) Martin v. Herzog (3) By hard-and-fast rule developed by judicial prescriptions, like the rule that you are always negligent if you can not stop within the range of your vision (negligence as a matter of law, i.e. reasonable jurors could not differ and all would conclude that the actor was negligent) Marshall v. Southern Railway (4) By custom of the community or the business involved T.J. Hooper (5) By a moral rule that imposes liability if the defendant did anything more risky than he would have done to prevent the same harm to himself or his property;or (6) Risk-utility formula Carroll Towing 3) Chaffin v. Brame, p. 1oo P drives, there was a truck parked on the street; the P tried to avoid him and and hits the bridge;No indication of hazard lights; case went to the jury: jury found verdict for the plaitiff; even though he did overdrive his headlights, he was in an impossible situation (no hazard lights) here the court recognized that that judge made law is not fair so it will not apply at every situation; court does not agree that judges should be ruling as a matter of law; in situations of accidents we do not switch the cost to the person who caused the acciudent: these are the situation when the individual who caused the loss did exercise reasonable care; in this case the responsibility is shifted to the person who did not cause the accident c. Neggligence per se i. Martin v. Herzog, p. 102 L driving at night, crossed over the centerline on a curve and struck a buggy occupied by , causing his death. contended that was negligent in driving without lights. Court affirmed. Negligence of the , provides adequate defense to negligent liability for . ii. Impson v. Structural Metals, p. 109 s truck attempted to pass car within 100 feet of an intersection. car turned left and was struck by . Statute prohibits passing within 100 feet of intersection, therefore negligence as a matter of law. appeals arguing that he has an excused violation or justification. Court disagrees. An excused violation of a legislative enactment is not negligence. There are five general categories/ excuses when is not negligent even if he violates the statute: 1. Actors incapacity (heart attack, too young, mental incapacity) 2. Neither knows nor should know of compliance (night driver has a taillight go out without his knowledge 3. Unable after diligence to comply 4. Confronted by emergency not due to own misconduct (brake or steering failure) 18

5. Compliance would involve greater risk of harm to actor or others iii. Rudes v. Gottschalk : an 8 yr old boy, was struck by a s car as he attempted to cross an expressway. Statute provided that every pedestrian was required to yield the right of way except in a crosswalk. Jury found not in crosswalk. On this trial judge denied any recovery under negligence per se. The conduct of a child is not to be judged by the standard of an adult simply because of statutory negligence (negligence per se) rather than common-law negligence. (Negligence per se as it applies to children)

Synthesizing: If a child is doing a child-like or age appropriate activity, he may not be liable for negligence, if a child is performing an adult-like thing, e.g., operating a car, snowmobile, etc., he is held to an adult standard. ii) Scope of the Per se rule - classes of persons and harms i. Wright v. Brown was bitten by s dog. Dog had bitten another less than 14 days prior. According to statute, a dog that has bitten a person must remain in quarantine for 14 days; Dog had been released early. charges that as a result of the premature release is negligent per se. 2 requirements to find someone negligent per se: 1.P has to be within the class of people that the statute is designed to protect 2.The damage needs to be within the type of damage that the statute is designed to protect. (The Ps case is not over they could use plain negligence ) (2) BREACH b) Assessing Reasonable Care by Assessing Risks and Costs, pp. 112-131 i) Risk/ Utility Formula (1) Pipher v. Paisell, P passenger in D's truck; another passenger grabbed the wheel once, D lost control but never did anything to prevent the 3d person from doing it again. The 3d person grabbed the wheel again, D lost control and hit a tree, P was injured. Issue: was D negligent? Holiding: yes; Rationale: A driver of an OV has a duty of care towards his passengers; he is not responsible for the unforeseeable acts of the passengers but he is responsible for the objectively foreseeable ones. The trial court found no duty as a matter of law, Appellate Court sent the case back to trial for the jury to find if D's breach of duty was the proximate cause of P's injuries. Notes: The trial court judge says that under the circumstances the driver did not have a duty to try and deter the person from grabbing the wheel again The judge said I think I will decide it as a matter of law and the appellate court says the jury has to decide this; 19

(2) Indiana Consol. Ins. Co. v. Mathew, p. 117 Matthew started his brother's lawnmower in his bro's garage (he was there lawfully) and it caught on fire. Ins Comp. Of his brother sues him for negligence; Trail court found for D; Ins Co appealed; Appellate court found: no breach of duty thus n negligence; D exercised reasonable care under the circumstances; the fact he did not try to push the loan mower out of the garage is excusable since D testified he was afraid it will explode in his hands; Law values human life above property D was not under duty to risk his life in order to prevent prop. Damage to the garage; Notes: One is not required to anticipate that which is unlikely to happen (3) Stinnett v. Buchele, p. 119 P was hired by D to paint the roof of his barn; While doing it P fell off of it and was injured; P contends D was negligent in not providing safe work environment. On a bench trial D was not found to be negligent; Appellate Ct affirms; quote of the trial court opinion: An employer's obligation to its employee is not the frequently impossible duty of furnishing absolutely safe instrumentalities or place to work Thus since D did not have any duty, there was no breach and no negligence; Notes: Issue is who was in a superior position to protect the injured. In this case the D should have done it, since he was the best cost avoider because he had (arguably) special knowledge. (4) Bernier v. Boston Edison Co., p. 122 In a complex car accident, an MV driver hit D's electric pole and the pole fell on plaintiffs causing serious injuries; P was found to be negligent; P appealed; Appellate Court affirmed; Rationale: D had a duty to design their poles against the foreseeable risk attending pole's use; it was known that there was heavy traffic in the area, prone to accidents, + approximately 100-120 of those poles were knocked over by vehicles; D argues that they couldn't have made the poles completely accident resistant if they made the poles stronger then motorists would be more seriously injured; court held that pedestrians need more protection and the safety standards should be accorded with their safety. Notes: The best cost shifter and the least cost avoider should be the one who should pay for the damage + their behavior is the one that the tort system is aiming to change. ii) Risk/Utility Balancing (1) United States v. Carroll Towing, p. 127 Busy harbor during the war, a lot of activity; A barge was moored to the dock, broke adrift, hit a tanker got damaged sunk and lost the cargo Issue: what risks should a reasonable barge owner identify and what steps they should have taken to avoid it One of the risks that should have been foreseen ( according to this case) is that someone else might be negligent; What should have been evaluated? 1. The probability that she will break away 2. The gravity of the resulting injury, if she does 3. The Burden of adequate precautions Used to determine the probability of negligence 20

Probability = P Liability/Injury = L Burden = B

P < BL
c) Proving and Evaluating Conduct i) Proving Conduct (1) Direct Proof (a) Sufficiency of Proof - the requirement of specific conduct i. Santiago v. First Student, P allegedly was injured in a collision occurring between Ds bus and another veh; there is no police report and the P can not rememeber exactly where the accident occur or how exactly it happened, no evidence + no other witnesses; SJ granted due to P not meeting the burden to prove her case Notes: the fact that Ps case would be very difficult to prove doesnt relieve P from the burden to demonstrate the existence of a material question of fact Notes (class): We could make an argument that he bus driver had to exercise higher amount of care because driving a bus full of kids is inherently dangerous activity; No evidence that there is failure to take a step to avoid the risk; no breach so there is no negligent act;Once we find there is no breach of duty we dont even need to go to the rest of the elements; ii. Gift v. Palmer The 5 year old son of the P was hit by D; Meager evidence: a neighbor saw the boy was with his sister 5 minutes before the accident; a few days after the accident the D went to Ps house and said that he hit by accident the boy; the day was clear, the street was 30 feet wide with trolley tracks on the middle; no contributory negligence due to the boys young age; negligence by D? not clear; the fact that he hit the boy doesnt mean he was negligent; D could be held negligent only if the evidence shows that the harm was reasonably foreseeable and could have been prevented by exercising reasonable care; There was no witnesses, no evidence that the D was speeding, no evidence where the boy was before he was hit by D nothing to show whether or not the D could have avoided the accident by exercising of reasonable care; Trial Court entered non suit (like a motion for directed verdict) ; appellate court affirmed it;

21

(b) Conflicting Evidence - credibility, experts and the process of determining facts i. Upchurch v. Rotenberry (handout) was in car accident, she drove, passenger died; the mother of sues for negligence; trial jury found for , moved for j.n.o.v. there was conflicting testimony; in such cases the jury should decide which witnesses to believe. Direct evidence: any evidence obtained through ones senses (direct perseption) Circumstantial evidence: inference based on facts obtained through direct evidence (2) Circumstantial Evidence (a) Permissible inferences of fact i. Forsyth v. Joseph, p. 137 Negligent act speeding was inferred by circumstantial evidence skid marks. Opinion evidence bearing on factual inferences (3) Note: Witnesses' opinions as to facts and factual inferences, p.138 (a) Non-expert witnesses: not allowed to give opinions on ultimate issues; cant say In my opinion the D was negligent; have to leave such inferences to the jury; an eyewitness is allowed to give estimates of speed, distance, intoxication juries are likely to understand those are just inferences and nothing more (b) Expert witnesses: usually allowed to give expert opinion or conclusions within the field of their expertise and if it is likely that their testimony would be helpful to the jury; it is not allowed for common knowledge issues; problems with expert witness testimony: 1. experts often differ 2. Allows speculation 3.ay overwhelm the jury (c) The role of the lawyer: active one, they must investigate, and maintain the initiative in court by presenting the facts of investigation (by him or by others) ii) Evaluating conduct, pp. 139-47 (1) Evaluation of known conduct (a) Thoma v. Cracker Barrel, Inc., p. 140 slipped and fell on sth in s restaurant. sued for negligence Rule : In order to prove negligence in a slip and fall accident P must show that the owner either created the dangerous condition or had actual or constructive knowledge about it; this might be established by circumstantial evidence; 2 areas where we could find negligent acts by employer: 1. Failure to inspect 2. Failure to clean up (if they were aware) Negligent act in this case: failure to inspect (not probably to clean up because there is no evidence that there was notice) 22

Wal-Mart Stores v. Wright, p. 143 Facts: a woman slipped on a puddle of water in the outdoor garden area in WalMart store and fell; sued W. for her injuries alleging that W was negligent in the maintenance, care and inspection of their premises; Procedure: Wal-Mart manuals were admitted as evidence; Trial Court found for the P; The appellate court reversed; Rationale: wrong instruction was given at trial: that the jury may consider the violation of any rule found in the manuals and safety handbook along with other evidence; App. Ct. held that the instruction was improper since it directed the jury to apply subjective not objective standard of reasonable care under the circumstances;

(2) Evidence to assist evaluation: Custom- 1 form of circumstantial evidence 1. Shows that the harm was foreseeable i.e. that the conduct was reasonably risky; 2. That the conduct was unreasonably risky unless the customary precaution is taken; and 3. That the precautions are feasible (risk utility formula cost of precaution v. risk of the ) iii) The fact that the custom exists might be circumstancial evidence that the risk exists (Dunkan) iv) If we customarily do sth it is arguable that it is recognition that not obeying the custom is risky. (ex putting your car in park before you took the foot off the break; cost: nonmonetary, opportunity cost what you could have done during the time you are taking the precautionary measure). Does the custom create an objective duty (of reasonable care under the circumstances?) v) Duncan v. Corbetta, p. 144 P climbing stairs, at Ds residence, stairs collapsed and P fell; she sued D for not using pressure treated wood as it was customary (it shows that the people of the industry were using that wood, they recogixed the risk; )the fact that it was so customarily used (risk utility formula ) Notes : the use of custom is permissible as a proof because it tends to establish a standard by which an ordinary care may be judged

vi) McComish v. Desoi had to move a machine. He used slings and clips with a cable. Clips slipped while being hoisted by crane and killed one person and injured another. 23

introduced safety manuals and codes put out by private agencies and U.S. Army Corps of Engineers. Jury found for . appealed saying the manuals shouldnt be admitted, because they were hearsay. Court did not agree. The safety codes were rightly admitted The law permits the methods, practices or rules experienced men generally accept and follow to be shown as an aid to the jury, in comparing the conduct of the alleged tortfeasor with the required norm of reasonable prudence. They are simple evidence of how to by those who have experience doing it.

The engineer had to make the machine as safe as feasible (other way to say it as safe as reasonable) What we need to say on the exam is that if we have a custom it is circumstantial evidence that allows us to draw these 3 things: 1. Harm is foreseeable2. The conduct is unreasonably risky; 3. The precautions are feasible (see above). i. The T.J. Hooper, p. 145 Barges and tugs went down at sea in a storm. Known of the vessel had working radios which the captains could have used to be aware of the upcoming storm. The famous Judge Learned Hand says that even though no law required having radios common sense dictated their necessity. Therefore, the tug boat owners were negligent by not having them. Courts must in the end say what is required; there are no precautions so imperative that even their universal disregard will not excuse their omission Notes: there was no custom to put receiving sets; the loss was foreseeable; the loss could have been prevented by a radio (receiving sets), There are some cases when custom does not further safety because it had lagged behind; vii) How does custom relate to risk-utility formula and can one tramp the other?: In T.J. Hooper the RU formula trumps the (lack of) custom it is based on common sense (the jury would call it common sense but the lawyers really call it risk-utility formula). Example of custom lagging behind (we allow doctors to lag behind ): it used to be customary that when sb had an eye tumor to remove their eyeball; it is not necessary now; Custom: Evidence of the amount of care a person should use under the circumstances; Can be used offensively (sword) by the plaintiff to show that the defendant failed to conform Can be used defensively (shield) by a defendant to show that he did conform 24

Merely evidence of the amount of care; the jury is not bound; Why? The industry may have lagged behind scientific development; Hand formula can be used to trump custom;

Providing Unspecified Neglgence: The special case of Res Ipsa Loquitour(the thing itself speaks) RESTATEMENT ON RES IPSA LOQUITUR:
(1)

It may be inferred that the harm suffered by the plaintiff is caused by the negligence of the defendant when:

(a) The event is of a kind which ordinarily does not occur in the absence of negligence: AND (b) Other responsible causes, including conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence: AND, (c) The indicated negligence is within the scope of the d duty to the plaintiff. 1. Origins and Basic Features of the Doctrine i. Byrne v. Boadle, p. 147 was walking down a road when he lost all recollection. Witnesses testified that a barrel of flour fell on him. shop was next door and barrel appeared to have been from shop. The mere fact of an accidents occurrence raises an inference of negligence so as to establish a prima facie case.

ii. Valley Properties Limited Partnership v. Steadman's Hardware, Inc. rented space in warehouse. space was completely separate and had only keys. Electrical wiring was old. Fire started in space that eventually consumed entire warehouse. was unable to point to specific act of negligence but argued res ipsa loquitur. Trial court refused. Biggest issue: the fire could have been caused by sth other than negligence In this case it could have been the old wiring or the defendants fault; if we are the Ps lawyer we have to rule out the possibility that the wiring caused it (like hire an electrician) but then again there is other possibilities we have to rule out. All Res Ipsa loquitur does is let us drawing assumption from circumstantial evidence; If we exclude all other possibilities that could have caused the injury, the most probable inference would be the negligent act of the . So we list all the causes that culd have caused the harm, show that all they are unlikely, and then since we have eliminated all the rest of the possible causes, we can infer that the most likely cause is the act of the . 25

iii. Giles v. City of New Haven p. 156 had worked for 14 yrs as an elevator operator. Elevator mishandled, chain swayed, got stuck and then broke. Cab shuddered and shook. heard a loud crash (chain falling many floors and fearing for her safety, reversed the elevators direction and bailed out. Elevator was installed by approximately 61 years prior. Expert witness of stated that for the chain to sway that much had to be due to operator error (trying to say that since did not have control they are not negligent). Court disagrees. 1. Courts now de-emphasize the role of exclusive control as a condition of res ipsa loquitur, even though earlier decisions mandated this requirement. 2. If jury could reasonably find the control was sufficient to warrant an inference that the was more likely responsible for the incident than someone else the trial court must allow the jury to draw that inference. 3. Although the s operating the elevator may have diminished the exclusivity of the s control, a jury could find that conduct did not strip of control or responsibility.

Notes: We dont have to eliminate every single possible cause, we only need to show that the was the most likely cause. (comparative negligence system, which serves better the goals of the tort system than strict application of the pure contributory negligence system) If all we do is say that res ipsa inference can go to the jury is if the could not possibly have brought about the conduct, it will be going back to the contributory negligence system (cross reference to the contributory negligence system). Warren v. Jeffries drove to s fathers house and parked car in yard. and brothers jumped into car to go get shoe polish. s mother took s glasses in the house. Five children got into rear seat of car, none got into front seat. got in and when he closed the door something clicked: in the front. Car started rolling down the hill backwards. One of the children told others to jump out. All jump out, first. When he jumped out and fell, the cars front wheel ran over his chest. Judge determined car was not examined after accident: Brakes were not checked was handbrake set? Res Ipsa Loquitur does not apply when the negligence of the is not the only reasonable explanation for an occurrence.

Note: Procedural Incidents and effects of Res Ipsa Loquitur 1. Res Ipsa Loquitur means will survive a motion for directed verdict and get to the jury, which can then decide case either way. 2. If has presented evidence from which jury could conclude Res Ipsa Loquitur, then trial judges give a Res Ipsa Loquitur instruction to jury. But instruction is not necessary. In cases on appeal, a court will uphold a jurys verdict for even though judge has not instructed jury on doctrine. 26

3. Even if brings in no evidence to defend against res ipsa loquitur, the inference of negligence in a res ipsa loquitur is merely permissible and does not shift the burden of persuasion from the . What we need is to find the reasonable amount of evidence to eliminate the or the other probable possibilities (not necessarily ALL possibilities). Assessing responsibility when more than one person is negligent

(3)HARM AND CAUSATION IN FACT: 1. Actual Harm The third element of a prima facie case to negligence is that must suffer legal cognizable harm, known as Actual Damages. The who shows negligence but does not show what actual damages resulted will lose their case i. Copeland v. Compton Trial testimony showed negligently drove her car. told people at the scene he had no complaints of injury. also lied about his previous medical conditions: In auto accidents in 1979, 1980 and 1987. Court said failed burden of proof for actual injuries in case. Liability is the conclusion when there is a duty, breach and causal connection between the conduct of the and the resulting injury of the . denying liability for injury need not introduce any evidence in the favor. Burden of proof is on .

Punitive damages are not recoverable unless actual damages are established and then only if has a bad state of mind about it. 2. Cause in Fact The fourth element in a prima facie case is cause in fact or actual cause. must prove, not only he suffered legally recognizable harm, but also that the harm was in fact caused by the . a. The But-for Test of Causation ii. Salinetro v. Nystrom was 4-6 weeks pregnant and went to a doctor for a medical exam after an auto accident. Neither Dr nor his x-ray tech asked whether she was pregnant. Later, went to gynecologist and found out of her pregnancy. had abortion because fetus was dead. filed lawsuit against Dr. was not negligent, because would have said she was not pregnant had she been asked with same result. A party is liable for negligence only if conduct caused the injuries in question.

The But-for test is a hypothetical or counterfactual test. It asks what would have happened if the 27

had not been negligent. It asks a judge or jury to consider a scenario that never happened. b. Problems With and Alternatives to But-for Tests iii. Landers v. East Texas Salt Water Disposal Co. owned small lake stocked with fish. The s pipe lines broke and 10-15 thousand barrels of salt water flowed over his land and into his lake. The other , Sun Oil Co. on that day caused large amounts of salt water and oil to flow into his lake. Where the tortious acts of two or more join to make an indivisible injury, all of the wrongdoers will be held jointly and severably liable for entire damages.

c. How to apportion fault among defendants: 2 systems available: Joint and several liability: can sue either of the tortfeasors can obtain i. Contribution: one tort feasor pays for all the liability ii. Indemnity: when you are being held responsible as an employer under respondeat superior; you can use In Europe the loser pays; in the US the American Rule applies (everyone pays their own). Where the acts of 2 or more defendant produce an indivisible damage, each one of them will be held jointly and severely liable for the entire damage and the plaintiff may sue each one of them separately or both of them in the same lawsuit. Class notes: cost of cleaning up the pond: s sais we did it but we cant recover against us cause we didnt act in concert and each is only liable for what they caused; and since the cannot prove who did what they should not be liable thats how it used to be the law; the companies however at the least cost avoider and the best cost shifter (in enterprise liab. We will say that we want those prices to go up so at one point they will be so high our company will be out of business and we want them out of business since it is too risky). The court said that because the injury is indivisible the companies should pay and then they can cross claim between each other; Indivisible injury p. 60 handouts; 2. Cause in fact (we have to show that the breach is the cause of fact of the damages) But for cause (but for ) Landers (we can make an argument for substantial cause also) Substantial factor) Anderson In indivisible damages iv. Anderson v. Minneapolis Facts: Two fires claims that yes there was fire but 28

even if our fire wasnt there, the event would still have occurred; Thus BUT FOR our cause the fire would have still occurred; In this case the goals of the torts system would not have been furthered; So the court says that they would use not but-for cause but Substantial Factor (we could still sue one under joint and several liability) because we want to accomplish the least cost avoider best cost shifter, to deter and to compensate; 1For Plaintiff a. Preexisting condition thin skulled i. Extent ii. Take your plaintiff as you find her/him 2. For defendant a. Preexisting injury/ illness aggravation of injury i. Extent/degree ii. Only liable for the harm actually caused b. Injury or illness already set to occur late in time acceleration of injury; i. Timing ii. Only liable for the harm actually caused c. Mitigation of damages duty of plaintiff to take reasonable measures to minimize extent of injury i. Extent/ degree ii. Only liable for the harm D actually caused iii. Also called doctrine of avoidable consequence;

i. Dillon v. Twin State Gas & Electric Co. maintained insulated wires across a bridge. Bridge was constructed of steel girders. 14-yr. old boy was on horizontal girder, lost his balance and grabbed electric wire which electrocuted him. The damages for negligence are decreased in contributory negligence when negligence of is great and other causals are present. ii. Summers v. Tice, p. 175 Two were out with shooting birds. Both were armed with 12-gauge shotguns. A flock of quail rose between s and . Both shot. was hit in eye and lip with pellets. When no clear tortfeasor is found, each is liable for the injury, although no one can say which is innocent and which is guilty, each are guilty of negligence. To do anything else 29

would escape both from liability. (This is a classic case. In this case, the burden of proof shifts from the to the s) One tortfeasor caused the harm, the other caused spoliation of the evidence.

(5) Proximate cause: The fifth and final element of the prima facie case for negligence is legal or proximate cause. Proximate cause determinations involve case-specific inquiries into whether the should be held legally responsible to the . Proximate cause Foreseeable: a) Risk Medcalf b) Plaintiff Palsgraf rescue doctrine Wagner Public policy matter there is no duty to rescue so we dont wanna discourage it by excluding the rescuer from the foreseeable plaintiffs. c) Manner usually does not matter; d) Extent of the injuries Hamersteen (the extent does not need to be foreseeable). e) intervening cause Rule: Intervening cause is foreseeable, thus it is not superceding if: 1.the D should have foreseen and avoided the general type of harm that resulted, even though the intervening causes were themselves unforeseeable 2.ct may declare that an intervening cause is foreseeable if it represents a general type of foreseeable intervention, even thought it could not have been specifically anticipated; Scope of Risk Liability is for unreasonable risks the has created, not for reasonable risks or for those that were unforeseeable i. Medcalf v. Washington Heights Condominium Assn, Inc. parked her car in street level parking lot and walked to lobby doors. picked up intercom and called friend to be let in. Electronic buzzer system failed, so friend went down stairs to let in . The was then attacked by a man. Lines must be drawn down the causal road. are not liable, because they could not have reasonably foreseen that malfunctioning equipment might provide an incentive for a violent criminal assault.

Foreseeable Plaintiff : ii. Palsgraf v. Long Island Railroad Co. was waiting for a train, waiting at the far corner of the platform. A man carrying a small package covered in newspaper ran to catch the train. A man jumped on to the train, a guard helped pull him in 30

from the front, while a guard gave him a push from behind. The package became dislodged and landed on the tracks. The package contained fireworks and when they fell they exploded. The shock of the explosion threw down some scales at the other end of the platform, which struck and injured . (This is a classic case) Cardozo: The risk to be perceived defines the duty to be obeyed. There is no duty to something so unforeseen. (Railroad is not negligent and owes her no duty of care) Andrews: Where there is an unreasonable act there is negligence, whether damage does or does not result. It does not matter whether they are unusual, unexpected, unforeseen and unforeseeable. There is one limitation. The damages must be so connected with the negligence that the latter may be said to be the proximate cause. (Person who is negligent to any class of people is negligent to everyone who is injured. Proximate cause is not a matter of foreseeability alone.) The Rescue Doctrine(foreseeable plaintiff) Danger invites rescue. The is responsible for any reasonably foreseeable injuries to the and for any reasonably foreseeable injuries. 2. Assessing the Scope of Risk a. Is Harm Outside the Scope of Risk Because of the Manner in Which It Occurs? iii. Hughes v. Lord Advocate Manner does not matter Post Office employees were working on cable lines and left an open manhole unguarded and surrounded by kerosene lanterns. Two boys found the site, tied a lamp to a rope and lowered it into the manhole. They brought the lantern back out but it broke and caused a large explosion followed by a raging fire. One boy suffered severe burns. When there is a known risk of danger and does not protect against it, it does not matter how it was caused.

Extent of the Injury: iv. Doughty v. Turner drops cover into pot of molten liquid about 800 degrees centigrade. Cover sank without a splash after a minute the molten liquid erupted seriously injuring . When the accident is a consequence of reasonable risk, it is not a breach of duty, even if the extent of injury is unforeseeable. v. Hammerstein v. Jean Development West was a guest at s hotel. Hotel knew he was a diabetic. Walking stairs was bad for him. put him on 2nd floor anyway. In early morning fire alarm went off. Elevators were locked 31

and had to walk down from 4th floor. twisted ankle and then got a blister which turned gangrenous. There was no fire and fire alarm had gone off before on numerous occasions but had not been fixed. The s knowledge (diabetic and fire alarm) made the action and possibility of liability greater.

Intervening/Superceding Causes: (part of #5 Proximate cause: foreseeable plaintiff, foreseeable risk, manner does not mater ( most courts would say) extent of injury; superceeding causes Scope of Risk Principle: An intervening act of some second tortfeasor should relieve the first tortfeasor of liability when the resulting harm is outside the scope of foreseeable risk.

Note: An intervening cause that lies within the scope of the foreseeable risk is not a superseding cause. i.Watson v. Kentucky & Indiana Bridge and Railroad Negligently derailed a gasoline tank car and it sprang a leak. A man threw a match into the area and an explosion occurred. If the intervening agency is something so extraordinary that could not have been anticipated, is not liable, nor should he be liable for any criminal acts of others.

ii.Derdiarian v. Felix Contracting Corp. was installing an underground gas main. had a kettle of liquid enamel boiling to 400 degrees. worked for . Against wishes, insisted that set kettle up facing oncoming traffic. D had a single barricade and flagmen (Expert testified, there should have been a truck in front and two flagmen). Dickens, a motorist, forgot to take his medication and had an epileptic seizure, driving car into kettle. was turned into human fireball, but miraculously survived. sued the pants off . a. Where the acts of a third person intervene between and injury, the causal connection is not always severed. b. Liability turns on whether the intervening act is a normal or foreseeable consequence created by negligence. An intervening act may not serve as a superseding cause, and relieve an actor of responsibility, where the risk of the intervening act occurring is the very same risk, which renders the actor negligent.

Sheehan v. City of New York Garbage trucks brakes failed and ran into a bus that was in the wrong lane for dropping off passengers. The negligence of the garbage truck was the sole proximate cause. The bus just furnished the accident that was going to occur anyway.

Ventricilli v. Kinney System Rent a Car, Inc. 32

 rented a car with a defective trunk. While car was parked, was attempting to slam trunk lid shut. A guys car was parked several cars behind . Car suddenly jumped ahead and ran into . To hold an accident a foreseeable consequence of s negligence is to stretch the concept of forseeability beyond acceptable limits. Car parked in a position of safety think of it resetting the table for liability.

Marshall v. Nugent Ice and hard-packed snow on highway. Guy goes up to top of hill to flag off cars because of vehicles being pulled out below. hit before he could get to top of hill. The forseeability of the risk was unknown, but the termination of risk had not occurred. With so many possible foreseeable accidents, it would be difficult to predict just how the negligence would play out. The truck that caused the accident was partially liable. The next truck was not a superseding cause. o At some point liability does cut off.

Defenses
Remember, Plaintiff has a duty to mitigate damages. If they could have avoided them. (after the harm) 1. Contributory Negligence: The common law rule. (it was a complete bar)

Butterfield v. Forrester (this is the case that started contributory neg) was making repair to his house. Left a pole across the road. came riding down the road as fast as his horse could go and smacked into the pole. If he had used ordinary care, he would have seen the obstruction. The accident appeared to be entirely the fault of the . (Contributory Negligence: Complete All-or-nothing defense)

2. Contributory Negligence: Adopting Comparative Fault Rules to Permit Recovery Three types of contributory negligence: 1. Pure Comparative Fault System: NY= $100,000 claim. is 49% negligent, is 51% negligent. gets $49,000. 2. Modified Comparative Fault System: WI = $100,000 claim. is 49% Negligent, is 51% Negligent. gets NOTHING ( must be more at fault than ). 3. Modified Modified: TX = $100,000 claim. is 50% negligent, is 50% negligent. gets $50,000. (Both parties equally liable minority) Montana has a Greater than statute: D can collect as long as their negligence is not greater than Ds or combined Ds negligence. Reduced by percentage, up to 50% Wassell v. Adams 33

 Is raped in cruddy hotel owned by . occasionally warned women of danger of neighborhood, but not . was waiting for sailor husband, opened door thinking it was him. Middle of night, would have opened the door with or without warning. Suit for negligence. Court found was 3% liable and was 97% liable. Trial Court sets apportionment of liability in comparative fault cases as trier or facts. It can only be changed if there was an abuse of discretion. Posner did a cost analyses= Burden to D less than Plaintiff loss. (should you just consider this P, or the whole class of customers that could be P)

Ouellette v. Carde was working on car. Car fell on him and gas tank punctured. Reached phone and called friend. When friend opened automatic garage door, gasoline ignited and was badly burned.

Comparative negligence is not a full defense for the rescue doctrine. Danger still invites rescue (Majority View).
The law places a premium on human life, and one who voluntarily attempts to save a life of another should not be barred from complete recovery unless they acted recklessly which was not argued

Govich v. North American Systems, Inc. was hearing impaired. Came home to find house burning and trained hearing dog in house. Tried to get, no dice. sued (a coffee-maker manufacturer, for a defective product). 3. After the advent of comparative negligence the allocation of fault between a negligent plaintiff rescuer and negligent defendant must be left to the jury (Minority view) Traditional Exceptions to the Contributory Negligence Bar in a Comparative Fault Regime

a. Plaintiffs Illegal Activity Barker v. Kallash A 15 year old was making a pipe bomb from firecrackers sold to him by nine year old. It exploded and was injured. sued and anybody else in sight. No Recovery. When injury is direct result of his knowing and intentional participation in a criminal act, there is no recovery for damages.

6. Contractual Assumed Risk Boyle v. Revici was diagnosed with cancer. Consulted several Dr.s who all recommended surgery. Met (Dr) who suggested alternative medicine and treatment. informed the that methods were not approved by FDA and could offer no guarantees.

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When a person assumes the risk for medical treatment, there is no recovery Assumption of the Risk)

(Voluntary

Tunkl v. Regents of University of California was admitted to hospital on condition that he sign release, which absolved hospital of any possible negligence from its employees. Court frowned on this. The service is one each member of the public may find essential. We cannot lightly accept a sought immunity from careless failure to provide hospital service upon which many must depend. (Compulsory Assumption of the Risk Verboten)

Ciafalo v. Vic Tanney Gyms, Inc. was stupid enough to fall into a pool located on her gyms premises, and then attempted to sue for it. moved for summary judgment based on her membership contract in which she agreed to assume full responsibility for any injuries that might occur. Granted. If there is expressed language for exemption of liability, exculpatory contracts not asserted by common carriers, public utilities, or employers as a condition of employments is a legal defense.

Jones v. Dressel was at a sky-diving facility ( ). Plane crashed shortly after take-off. sued for simple negligence and wllful and wanton conduct. moved fot summary judgement based upon exculpatory clause which exempted it from all liability for injuries. Jury held contract and exculpaotory clause are valid. An exculpatory agreement is valid if 1. Goods can be gotten somewhere else 2. Does not attempt to protect from willful or wanton conduct 3. Does not affect public interest 4. Fairly entered into 5. Clearly states parties motives Implied Assumption of the Risk-Comparative Fault or Contractual Limitation on Liability?

7.

Betts v. Crawford worked for as a housekeeper. One day she tripped while carrying a pile of clothes down the stairs. P asked that jury be instructed that a servant assumes all risks, which are known to him even if risks are due to masters negligence. Trial Court rejected and instead instructed that homeowners must use reasonable care to furnish a safe place to work and that comparative fault applied.

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There is no distinction between contributory negligence and assumption of risk when raised as a defense to an established breach of duty. Assumed risk is now merged into the comparative negligence system. (Take two minutes to ponder this). Owner needed to exercise reasonable care Provide reasonably safe place to work. Liken it to comparative negligence. There is NO INSTRUCTION for assumption of risk. o In a comparative state if there was an assumption of risk found the D would get off. o Traditionally assumption is a Bar for recovery. Assumption shifts the risk to the plaintiff-then it becomes her duty. Jury will assume it is all on her shoulders.

Crews v. Hollenbach struck a buried natural gas line owned by Washington Gas, despite markers. did not call or alert anyone. Resident smelled the fumes and called fire department. Washington Gas was called, worked for same. While attempting to close off leak, gas was ignited. was severely injured. Assumption of risk serves as complete bar. Assumption of the Risk Analysis 1. Had knowledge of the risk of danger 2. Appreciated the risk 3. Voluntarily exposed self to risk 8. Assumed Risk as Limited Duty or No Defendant Negligence Siragusa v. Swedish Hospital was a nurse in hospital. was working at a basin, when a door opened suddenly. On back of door was a large hook, which stuck her in the back. If an employer has negligently failed in duty to provide safe workplace, cannot assert as a defense, that an injured employee is barred from recovery because employee is aware of or should have known risk.

Sunday v. Stratton Corp. was 21 years old and paying patron at ski resort. was skiing on a smooth novice trail, his ski struck a bush concealed in the snow. injuries resulted in permanent quadriplegia Where the evidence indicates existence of duty or assumption of duty and its breach, that risk is not assumed by . What he then assumes is not the risk of injury but the use of reasonable care on the part of

Bjork v. Mason took some boys water-skiing. He used his boat, ropes and inner tubes. sped up in violation of a no-wake zone. Rope pulling a tube snapped and whipped back into eye of inner tube rider. Participant assumes all risks inherent in a sport. Participants in a sport do not assume dangers from faulty equipment. 36

Turcotte v. Fell

 a renowned jockey gets thrown from a horse. Suffers severe injuries resulting parapelegia. Sues another jockey ( ) claiming negligence, violation of NY Racing Regs, etc. Vigorous and active participation in sporting events should not be chilled by the threat of litigation. (Professional sportsmen/athletes assume all risk)

Gauvin v. Clark and were on opposing teams in college hockey teams. was injured when butt-ended the in stomach. Violation of safety rule and everyone knew it. Jury found for violation but not for willful or wanton conduct. Vigorous and active participation in sports does not involve negligence, there is a voluntary assumption of the risk, even when illegal or unsafe conduct is displayed. (Social policy)

Assumption of the Risk Expressed Assumption of the Risk Parties contract who is going to have the obligation to protect against the risk nothing to do with contributory negligence barred from recovery if not against public policy to engage in contract. Boyle v. Revici Primary Assumption of the Risk Plaintiff voluntarily enters into some relationship with D knowing that there are certain inherent but commonly accepted risks against which the defendant will not protect. Barred from recovery * Not protect against risks that arent involved in the sport ie: bur in the saddle of the horse.

Secondary Assumption of the RiskFuture Negligence * Plaintiff voluntarily enters into some relationship with defendant with knowledge that defendant will act negligently in the future. * Risks that are inherent in an activity getting in the car with a drunk driver * treat just like contributory negligence Secondary Assumption of the Risk Preexisting Negligence * Plaintiff is fully aware of an unreasonable risk that has already been created by the negligence of the defendant and volun tarily proceeds to encounter it. * treat just like contributory negligence

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