Tort -

Civil Wrongs Harm Required (unless strict liability for some cases) Harm o personal injury, threat of physical injury (assault), reputation (defamation), emotional distress, pain and suffering, property damage, commercial harm

Justice, Policy and Process - Moral responsibility or Justice o corrective justice (Justice to individuals) - Social Utility or Policy o Good of society overall - Rules that apply are fair o Not too much judge discretion o Rules of procedure apply to all Compensation, Risk Distribution, Fault - Compensation o Make injured people whole - Fault o Make the person at fault pay - Risk Distribution o Distribute the cost of injury to everyone, so when someone is hurt (either with fault or without fault), there is compensation Deterrence and Freedom to Act - Deterrence o Deter others from risky behavior o Make things safer for everything - Freedom to Act o Person free to act, but must pay the consequences Prosser v. Keeton Facts -

Prosser owner of watch Watch Stolen by Thrulow Thurlow sold watch to Keeton for $500 (Fair Market Value) Thurlow disappeared with $500 Prosser sues Keeton for return of his stolen watch

Allens Opinion - Thief did not obtain title, so could not transfer title - Keeton does not have good title to watch

Watch belongs to Prosser

Batemans Opinion - Both parties are innocent - Owner is in better position to cover loss through insurance - Watch should remain with Keeton Comptons Opinion - Social Policy - In enterprise society exchange of goods should be fostered End Holden v. Wal-Mart Stores Facts -

Holden fell in Wal-Mart parking lot Injured Knee Had knee replacement costing $25,000 Testimony of experts o Gilles fall hastened need for surgery Fall cause 10% increase in lower extremity impairment and 4% increase in overall impairment Charges for RX $646.75 o McFerran Fall hastened need for knee replacement Knee replacement good for 15-20 years (Holdens age factors in) Cost of future replacement $40 to $50 thousand Charges #24,707.91

Procedure - Holden sued Wal-Mart and seeks damages - Jury awarded $6,000, reduced by 40% (negligence on Holden) to $3,600 - Holden appeals for jurys award being clearly erroneous Issue - Whether Jury was wrong in their verdict of awarding 6,000 with 40% negligence on Holden awarding only 3,600? Holding - No. Affirm Jury Award Rule -

Appellate courts do NOT disturb findings easily

End Damages in Torts - Compensatory damages o Make whole - Non-Compensatory damanges o Punitive Damages - Provable Damages o Losses which have accrued (accumulated) up time of trial o Medical actually accrued and wage losses - Non-Provable Damages o General damages Future loss of earning capacity Future medical costs Loss of consortium (association) Appeal - Record evidence no new evidence admitted - Only briefs and oral arguments (sometimes NO oral arguments)

Chapter 5 - Negligence
Elements 1. Duty 2. Breach 3. Damages 4. Cause-in-fact Actual cause 5. Proximate Cause *One must+ take reasonable precautions to prevent the occurrence of foreseeable harm to others. What precautions are reasonable depends on the risk of harm involved and the practicability of preventing it.

Foreseeability It is what the reasonable person would take into account when monitoring his or her conduct

Stewart v. Motts and s were working with gasoline. Level of Care o The level of care must be proportionate to the danger involved

Hunting Plaintiff injured in hunting accident Counsel can argue in closing statement that Dangerous activity requires reasonable people to exercise more diligence and caution

Bjorndal v. Weitman Car accident Jury Instruction sudden emergency: o People who are suddenly placed in a position of peril through no negligence of their own, and who are compelled to act w/out opportunity for reflection, are not negligent if they make a choice as a reasonably careful person placed in such a position might make, even though they do not make the wisest choices.

Emergency Situation The first car in a line of cars stalls. Many cars drive around the stalled cars; but, many must stop quickly b/c of traffic in the other lane. o If one of the drivers (now D in a negligence case) in the line of cars is unable to stop and crashes into the line of cars, should the court instruct the jury on sudden emergency? Driver, defendant, drives within the speed limit in a residential area. Children, ages 6 15, are playing soccer in a nearby vacant lot. o The driver continues to drive the speed limit. An 8-year old runs out in the street to retrieve a ball, the driver is unable to stop. Driver would have been able to avoid the child, if he drove 5 m/p/h slower. What is the standard of care? Any special J.I.?

Shepherd v. Gardner Wholesale P vision impaired b/c of cataracts, trips over raised concrete slab in sidewalk in front of Ds business o How should P, who is vision impaired b/c of cataracts, be judged according to the standard of care o Ordinary care of reasonable person w/ a like infirmity under same or similar circumstances

Creasy v. Rusk Alzheimers patient, Mr. Rusk, injures Ms. Creasy, a nursing assistant. Creasy is hurt and sues Rusk. o Rusk moves for summary judgment Standard of care of an Alzheimers patient is different from a reasonable person o Trial court granted Rusks summary judgment motion. o On appeal REVERSED Personal with Mental Disabilities

General Rule: Adults with mental disabilities are held to the same standard of reasonable care as adults. Their mental disabilities are not circumstances to be considered. Patients owe caregivers limited duty of care o Neither insanity nor mental deficiency relieves actor from liability apply reasonable standard of care o Also, apply RPP to persons with low intelligence and other mental or psychological limitations

Contributory Negligence
Ps duty to exercise reasonable care for his or her own safety

Hill v. Sparks P Ds sister Died when standing on ladder of earth-moving machine o Standard of RP requires only a minimum of attention, perception, memory, knowledge, intelligence, and judgment in order to recognize the existence of the risk. If the actor has in fact more than the minimum of these qualities, he is required to exercise the superior qualities that he has in a manner reasonable under the circumstances.o Issue for jury

Special Training High school sports coach received special courses dealing w/injured students. Would standard of care require coach to use his special knowledge in deciding whether to keep an injured player in a football game? Baby at daycare center dies from SIDS worker at daycare center placed baby on stomach to sleep increases risk of babies dying from SIDS. What if daycare center admits that it knew about a recommendation of the American Academy of Pediatrics against baby sleeping on stomach b/c of the risk of SIDS? P, a medical doctor, sues another doctor in a medical malpractice case claiming P injured b/c doctor was negligent in failing to diagnose Ps condition when P was a patient. Should Ps special training as a doctor be taken into consideration when deciding whether P was contributorily negligent in failing to tell the doctor about all of his symptoms?

Robinson v. Lindsay 11 year old, Kelly, lost full use of a thumb in an snowmobile accident 13 year old, Billy, was driving the snowmobile Child Standard of Care

o o o

The reasonably careful child of the same age, intelligence, maturing, training and experience. Applying Childs standard of care, a child does not drive a snowmobile Driving a snowmobile is an adult activity = RP SOC, Child SOC does NOT apply

Hudson-Connor v. Putney 14 year old drove golf cart, stepped on accelerator instead of the break, breaking Ps leg. child standard of care applies o Why? o 1) adult skills not required o 2) not inherently dangerous no evidence that golf carts driven exclusively by adults

Adult or Child Standard of care Child standard when involved in age-appropriate activities Adult standard when engage in dangerous activities o Examples: from different jurisdictions (note 3) 14 year old drove car w/deadly results adult Minors handling firearms child (most juris.) Minors involved in motorized activity adult 12 year old operating a motor boat - adult 17- year old riding a bike child 16- year old drinking passenger attempted to climb out window of a moving truck - child Defenses o 1) Incapable of C.N. as a matter of law o 2) Presumed incapable o 3) Apply child standard

Duty
What is the duty / Reasonable Care (define the standard of care) 1. Reasonable standard o reasonable person under the circumstances (objective std) 2. Child Standard o reasonable child with same age, intelligence, maturity, etc. as the D (both an objective and subjective std) 3. Persons with Physical disability o reasonable person with similar disability under the circumstances (obj./subj) 4. Persons with Mental disability o - reasonable person under the circumstances (obj) 5. Persons with superior qualities

o reasonable person with same or similar superior qualities under the circumstances (obj/subj)

Sudden emergency person who is suddenly and unexpectedly confronted with the actual presence of, of the appearance of, an emergency situation, not of his making, is not expected to use the same judgment and prudence that is required of him in the exercise of ordinary care in calmer and more deliberate moments. Most jurisdictions have done away with this J.I. 1) too prejudicial favors D and 2) repetitive

Sudden medical emergency J.I. person, while driving, who becomes suddenly stricken by a fainting spell or loses consciousness from an unforeseen cause, and is unable to control the vehicle is not liable for negligence or gross negligence Burden on D to prove the defense: 1) the unconsciousness and 2) the unforeseeability

Negligence per se / Negligence as a matter of Law Duty defined by very specific conduct If D (or P, if issue C.N.) did specific conduct, then the judge can rule as a matter of law that the D (or P) was negligent as a matter of law Reasonable care jury decides based on the facts, whether the conduct of the D (or P, if issue is C.N.) does or does not meet the reasonable care standard Negligence as a matter of law the judge specific conduct = negligence Range of lights standard (driving faster than the range of headlights)

Contributory Negligence USED TO BE all or nothing. IF P was C.N. then P lost, D wins Chaffin v. Brame P ran into an unlighted truck blocking the entire right lane D argues contributory negligence as a matter of law range of headlights rule Range of headlights rule o was a short cut way of saying that a person ought not to be permitted to shift from himself to another a loss resulting in part from his own refusal or failure to see that which is obvious Range of headlights o was a shortcut to reasonable care

Negligence as a matter of law If the specific conduct that = negligence as a matter of law would require MORE than reasonable care Then, the court should not apply the rule as a matter of law and send the case to a jury to determine if the drivers conduct was or was not reasonable under the circumstances Difference b/t directed verdict reasonable people could not differ on the facts so the judge does not have to send the case to the jury and can decide the case as a matter of law Legal Rule for all cases that some specific conduct = negligence as a matter of law Specific conduct = negligence always, for all cases

Martin v. Herzog D, crossed over center line, killed drive of buggy driving w/out lights Statute provided - misdemeanor to drive w/out lights violation of a statute can be evidence of negligence (contributory negligence violation of a statute is negligence per se if you find that defendant violated the statute and violation was a proximate cause of Ps harm, then D is liable

Violations of city ordinances, administrative regulations and state statute can be N. per se Some jurisdictions hold that a violation of an ordinance or administrative regulation is merely EVIDENCE of negligence

OGuin v. Bingham County kids killed playing in County landfill Idaho statute re: boundaries for landfill Negligence per se establishes the first 2 elements of negligence duty and breach To trigger the doctrine: o 1. Statute or regulation must clearly define the required standard of conduct o 2. Must intend to prevent the type of harm Ds act or omission caused o 3. P must be a member of the class of person statute was intended to protect o 4. Violation must be the proximate cause of the injury

When courts apply a violation of a statute (that does not expressly provide a civil cause of action) = judicial legislation (criticism of negligence per se) Negligence per se = negligence as a matter of law BUT does not = liability per se A violation of statute may = negligence per se But, the plaintiff must still prove : 1) cause-in-fact 2) proximate cause/legal cause

3) damages

Class of Person/Type of Harm How to know what legislature intended? 1) express language of statute 2) purpose statement legislation often has a purpose statement or Congressional/legislative findings 3) Legislative history debate on floor during the passage - losers last stand?

If D violated the statute + violation of statute is the proximate cause of injury = liability Evidence of Negligence Rule: Jury is free to consider or not consider the violation of statute when considering all the evidence to determine negligence

Impson v. Structural Metals, Inc. Excuses 1) incapacity 2) tail light goes out unexpectedly neither knows or should know of violation 3) unable after reasonable diligence or care 4) emergency not of Ds own doing 5) more risky to comply Suit against D, who attempted to pass Ps car within 100 of an intersection. Ps car turned left into the intersection and was struck by Ds truck P sue negligence per se Statue prohibits passing w/in 100 ft. of inters. Reverse appellate court agree with trial court D put forth unexcused violation (forgot existence of intersection) NOT A GOOD EXCUSE

Lenny v. Margaret Margaret was driving and hit a fog bank. She slowed down; but, a boulder rolled down the hill and struck her car. Margaret went into shock, closing her eyes. Her engine stalled when she came to a stop and she could not start it. The car was stalled across a lane of traffic and fog was thick. Margaret was struck by Lenny. A statute provides that no person shall stop etc. on the highway. If Lenny claims negligence per se (Margarets car stopped across a lane of traffic on the highway violates the pertinent statute) Type of harm/class of persons Does Margaret have valid excuse(s) for violating the statute?

o o o o

Is this an emergency not of Margarets own making? Would sudden medical emergency doctrine apply? Is this a situation in which the D was unable after reasonable diligence to comply? Would compliance w/statute create a greater risk (if Margaret got out of her car and pushed the car off the highway to comply with the law) Do what a reasonable person would do w/desire to comply w/law (Alarid v. Vanier, note 3, p. 111) Dont overlook common law negligence claim Is Lenny contributorily negligent? (range of lights rule)

Hypo Josh and Jill were in Joshs car, which was parked on the edge of a remote, unpaved country road that winded in and out of trees in a state-owned game preserve. Shortly after nightfall, Josh started his car to go home and remembered that his lights did not work. He decided to make his way slowly to the highway, which was about a mile away and then to hale a ride into town. The car traveled about a quarter of a mile when a shot was fired, sending a bullet through the windshield of the automobile and into Jills chest. She was severely injured and a lawsuit followed. Hal Hunter fired the shot that hit Jill. He was hunting in the preserve when he dimly saw the form of the vehicle creeping along about 400 yards away. He explained to the police office Being as big as it was, I was sure it was a deer or maybe a bear, so, I took aim and fired. o Jill brought negligence actions against Josh and Hal Hunter and sought to introduce the following two statutes into evidence. It shall be unlawful for any person to drive a motor vehicle in this state on any public road, highway, or lane, or on any public property b/t the period beginning 30 minutes prior to sunset on any day and 30 minutes after sunrise on the next succeeding day unless said vehicle is equipped with headlights and taillights conforming to the requirements of the motor vehicle equipment law of this state and unless the said lights are lighted. Title: Discharging Firearms in State Game Preserve It shall be unlawful for any person to discharge a firearm in any game preserve in this state. What type of harm was statute trying to protect? What class of people was statute intended to cover? What type of harm did plaintiff suffer? Any excuse for violation? o Headlights and Taillights requirement Type of harm: accidents b/t vehicles Class of persons: motorists, travelers

Plaintiffs harm resulted in gunshot from Hal Hunter thinking the stranded car was a bear or deer (hunting against the law in preserve) Any excuses? NO No firearms in game preserve statute Type of harm? Gun wounds to animals or visitors on game preserve Class of persons? Animals on game preserve, people visiting game preserve Plaintiff suffered the harm the statute was meant to protect against. Any excuses?

Breach
1. Duty 2. Breach Negligent Conduct 3. Damages 4. Cause-in-Fact 5. Proximate Cause All 5 elements = prima facie case of Negligence

Negligence Conduct that imposes unreasonable risks of foreseeable risk Measured by conduct Failure to act may be negligence, if required to act (if there is a duty to act, and one fails to act, this can be negligence) Mere state of mind is NOT negligence (daydreaming while driving not negligence unless causes harm) Intentional act - not necessarily an intentional tort Driving at high speeds is an intentional act but, may be negligence b/c taking an unreasonable risk

Brown v. Stiel Company chose a design using steel for the major structural components of a building, knowing that steel was cheaper and less safe than concrete. The steel construction was known to cause accidents, at the rate of 3 deaths or severe injury for a building the size of Stiels The building did in fact collapse, causing severe injury to an employee of Stiel, John White And injury to Billy Brown, a delivery person from the nearby deli, on the premises to bring an order for the supervising architect when the building collapsed

Did Stiel Co. commit an intentional tort? How to cover human breakage accidents that are statistically known to happen (like breaking plates in a restaurant) If White can collect workers comp, what about Billy Brown?

Pihper v. Parsell Pipher injured when car driven by Parsell went down an embankment and hit a tree. Pipher suing both Parsell (driver) and Beisel (passenger) Facts: Beisel grabbed steering wheel of car while Parsell driving Court said: o issue of breach of duty, foreseeability of Beisels repeat conduct and proximate cause of Piphers injuries factual determinations for the jury Forseeability of harm (both likelihood of harm and its severity) important in assessing negligence. Some courts say foreseeability of harm is necessary for duty to exist other courts and Restatement 3d disagree - (should be an issue for the jury)

Foreseeability Harm is a foreseeable consequence of almost any act but, just b/c harm is foreseeable, it does not mean the act is negligent Harm must be foreseeable in the sense of too likely to occur to justify risking it w/out precautions Was Ds harm unreasonably risky (not just foreseeable)

Romine v. Village of Irving Police ejected 2 intoxicated, unruly people from a fair, knowing they were from out of town. Intoxicated people drove their car negligently causing injury to P P tries to sue police officer Court dismissed claim against police officers saying they could not have foreseen criminal acts in general nor drunken driving by people ejected from fair Why not foreseeable? Public transportation?

Indiana Consolidates Insurance Co. v. Mathew Issue: Was Mathew negligent when he started a riding lawnmower in his brothers garage and the lawnmower caught on fire. Appellant, Insurance Co., insured the garage and is pursuing this claim against Mathew by virtue of its subrogation rights standing in the shoes of the insured 1. mower approximate 8 years old and in good mechanical condition 2. Mathew pulled the mower away from the side wall of the garage 3. Filled the lawnmowers full of gas using a funnel 4. waited 20 minutes

Hypo -

5. when started machine saw a flame and immediately turned off the machines 6. tried unsuccessfully to snuff out the flame 7. ran to his home to call the fire department What conduct does the insurance co. claim was negligent: o 1. filling the gas tank o 2. starting the mower in an enclosed area o 3. failing to push the flaming lawnmower out of the garage Found that Mathew not negligent Reasonable under the circumstances: Circumstances: Sudden Emergency

Woman fell while taking shoes off before going through airport security she sued the Transportation Safety Administration for not providing her a chair. There had not been a similar accident in the thousands of passengers going through security before P. Chair might cause more delay and more accidents

Stinnett v. Buchele P, Stinnett, a farm worker hired by D, Dr. Buchele, to repair the roof on a barn located on one of Dr. Bucheles farms. P fell off the roof and was severely injured P argues: o 1) D failed to comply with occupational and health regulations Negligence per se o 2) D failed to provide a safe place to work D argues: o 1) Contributory Negligence P claims that D should have provided safety devices What does the court say? NO Why? Who is in the best position to know and appreciate the dangers involved in painting a roof? Plaintiff is Although D purchased the material that Stinnett was applying to the roof, Stinnett did not ask D to purchase a safety net or other safety devices D was not present when the accident occurred, did not know that P was going to work on roof that particular day Court says D owed P a duty BUT D did not breach the duty What about Ps contributory negligence? Contributory negligence is not considered UNTIL AFTER P makes a prima facie case of negligence: P must establish: duty, breach, damages, c-in-fact, p/c THEN Consider contributory negligence

Principle in Stinnett When the risk is so obvious, it is reasonable to assume that others encountering the risk will exercise reasonable care for their own safety

Lowery v. Echostar Satellite Co. P fell off roof while attempting to repair satellite dish talking to the co.s customer service department when P fell Ps arguments: o Negligent for failing to repair the dish and insisting the P make the repairs Court affirms s.j. for D, Why? Court said no evidence that company in a superior position to protect P beyond good sense to hold otherwise

Lee v. GNLV Corp. P husband choked to death when eating in Golden Nugget Hotel & Casino. Wife sued, claiming that Ds employees failed to use reasonable care by not administering the Heimlich maneuver. Court affirmed s. j. for D Why not send this to the jury? Court is weighing the burden of requiring employees to learn the Heimlich maneuver in light of the low probability that the situation will occur on a regular basis If the cost of medical training to employees is high and the probability of patrons dying from choking on food is low, then reasonable care requires only that the D summon medical assistance within a reasonable time.

Bernier v. Boston Edison Co. Freak automobile accident Negligent driver runs into light pole pole falls on pedestrians Injured pedestrians sue 2 drivers involved (only Ramsdell found liable) Edison found liable for negligent design of pole Joint & Several Liability: When multiple Ds, one D can be responsible for the entire judgment. Then, the D that pays the entire judgment has a right of contribution to recover from the other Ds that portion of damages that the 1 D paid Joint and Several Liability P v. D1, D2 & D3 P has damages of $10,000 D1 10% at fault ($1,000) D2 10% at fault ($1,000)

D3 80% at fault ($8,000) P can collect the entire $10,000 judgment from any D, If D1 pays the whole judgment, he can collect 80% ($8K) from D3 and 10% ($1K) from D2 right of contribution 1. did not design a pole against the reasonably foreseeable risk attending the products use in that setting. Risk of poles knocked down in collision foreseeable D knows 100 120/year Testimony that e-ees involved in replacing thousands of poles 1. collisions will knock down poles 2. very dangerous depending on speed of car when colliding with pole 3. total weight of pole 1,200 pounds Boston Edison considered 1. cost 2. adaptability to Edisons existing system 3. capacity of eees to install poles safely (Some testimony that metal poles might subject pedestrians to shock) How to weigh risks and benefits? Court says since injuries might be serious, the likelihood of accidents does not have to be high to warrant careful consideration of safety features. Ps expert: 1. concrete poles lacked ductibility 2. pole could collapse by cars (6 mph) and trucks going very slowly (1.5 mph) 3. improved poles possible steel hoops, already in use testifies as to cost per pole Edison argues: catch 22 if use stronger poles to protect pedestrians, motorists might be more seriously injured if collided with pole and they did not break Not required to use a product wholly accident-free 1. testimony suggest that Edison did not consider poles of greater strength although other pole-types exist 2. motorists are protected by the car pedestrians have no protection in balancing all the pertinent factors, the jury made a judgment as to the social acceptability of the design What factors did the Court take into account 1. other pole-types available no comparison 2. pedestrians more exposed than motorists 3. cost seemed to be the key consideration Basically, the Court is affirming the juries finding difficult to assess negligence

Giant Foods v. Mitchell Ds eee ran after an alleged shoplifter, P was knocked down as shoplifter was running away Ps argument: reasonably foreseeable that pursuit of shoplifter could harm customers So, not reasonable to pursue a shoplifter

Court said: just b/c something is forseeable does not = negligence Weigh degree of risk of harm to customers against privilege to protect property

Parsons v. Crown Disposal P was thrown from horse when Ds garbage truck , operating in normal manner, startled horse with loud noises /S. J. for D Garbage collection is a vital public service Weighing benefits against risks

United States v. Carroll Towing Carroll Towing negligently caused the Anna C to sink Connors Co. owned Anna C. Grace Line eee operating the Carroll Towing tug Carroll Towing claims that Connors is C.N. b/c did not have bargee on board to report problem This is a case in admiralty so comparative fault applies P can still recover if negligent but, its damages are reduced by the % of Ps comparative negligence This opinion is considering the negligence of Anna C (Connors Co.) to not have a bargee on board No general rule re: absence of bargee Owners duty is a function of 3 variables 1) the probability of a vessel to break away from moorings (probability of harm) 2) the gravity of harm, if vessel does break away (Loss) 3) the burden of adequate precautions B is less than PL If the burden of adequate precautions is less than P L = negligence L depends on several factors weather, time, place if storm threatens, if harbor crowded: Also, Bargee cannot be prisoner must leave barge sometimes Specific facts of the case: 1. bargee gone 21 hours 2. bargee fabricated story re: absence 3. short January days 4. full tide of war activity What factors are important? 1. cost of making activity safer (B) 2. social usefulness of activity Bargees excuse to be absent from Anna C. 3. probability of harm from activity (P) 4. likely amount of harm (L)

Applying Risk/Utility Test 1. P must identify specific conduct that is negligent; then, identify safer conduct If the likelihood of barge breaking loose = 1/yr And the average estimated damage = $25,000

If it costs $30,000 to keep a bargee on board, Is D negligent? $30,000 (B) 1 (P) x $25,000 (L) 1. easier to reduce costs & benefits to $$, What about risks? 2. What about memory? - the forgotten gopher hole a reasonable prudent person sometimes forgets but, if the (B) is to remember to call a repair person, and the D, does not that (B) is low, (how much does it take to make a call and pay a repair person) but, what if reasonable person would forget In Boston Edison, court was critical that D did not consider falling polls on pedestrian, especially since it occurred several times in the past But, what if the risk is not foreseeable Cost of information: actor need consider only risks a reasonable person would consider

Alternatives to Risk / Utility Test Many ways to evaluate conduct: 1) applying imposed standards such as speed limits these may or may not reflect community values of reasonableness 2) custom rules that grow out of the communitys own current values (the community may be an industry) 3) formulistic rules range of headlights rule

What is Foreseeable? Almost anything is foreseeable Meaning: foreseeable + too likely to occur to justify risking it w/out adequate precautions Risk or probability of harm may be greater in some cases than in others

What is Unforeseeable? Unforeseeable means foreseeable BUT risk of harm low and harm so improbable that a reasonable person would not have taken safety precautions If risk of harm so low that reasonable not to take precautions = conduct was not unreasonably risky

Comparative Fault Mrs. Ramsdell v. Boston Edison Ramsdell 80% at fault Boston Edison 20% at fault If Ramdell had $100,000 damages and successfully sued Boston Edison Ramdell would collect? $20,000 ($100,000 80% - $80,000) Apportionment among Defendants

o o

o o

P v. Boston Edison (80%) & Ramsdell (20%) P had $10,000 damages P can collect $8,000 from Boston Edison $2,000 from Ramsdell In Joint and Several can collect entire amount from either D In several liability can collect only % of fault from each D

Joint and Several Liability Paul v. Agatha and Bert Jury assigns % of fault as follows: Paul (0%) v. Agatha (75%) and Bert (25%) o Damages: $100,000 If Agatha is judgment proof (no assets and no liability insurance) Can Paul collect $100,000? Answer: Yes Paul can collect the entire $100,000 from Bert even though Bert was only 25% at fault If Agatha had assets to pay a judgment, could Paul still collect the entire $100,000 from Bert, even though his portion of fault is only $25K? Answer: Yes Bert can seek contribution of $75,000 from Agatha, if Bert pays the entire $100,000 damage claim and only found to be 25% at fault.

Several Liability Paul (0%) v. Agatha (75%) and Bert (25%) $100,000 damages If Agatha is judgment proof, how much will Paul recover in the lawsuit? Paul will recover only $25,000, even though he has $100,000

Santiago v. First Student, Inc. P alleges that the right side of her face was injured when a school bus collided with a car and she jerked forward hitting her face on the seat in front of her after the bus driver applied the brakes. P cannot remember any other facts No police record. P admits that she did not see the collision Trial court grants s.j. for D Can P argue Res Ipsa Loquitur to get the case to the jury? Court stated:

To assign negligence to defendant based on the evidence in the record . . . Would impermissibly cross the line from reasonable inference and venture into the realm of rank speculation.

Gift v. Palmer D hit a 3 yr. old child Facts known: Wide street, Clear day No cars parked on the side of the street No one saw the impact or how the child got in the street Should the case go to the jury? Can a reasonable person listening to the facts in this case or the Santiago case, state exactly how the D should have altered his conduct to make it safer?

Difficulties in Determining Fault 1. injuries can be caused by tiny miscalculations especially in car accidents, seconds can make a difference 2. Accuracy of testimony witnesses have different recollections

Credibility Rule 1. Jury role determine credibility 2. Lawyers role try to discredit witness testimony how certain witness is, what witness saw, etc. 3. If P puts on uncontroverted testimony and D offers no testimony to contradict P, if P entitled to a directed verdict? most courts, yes; although court could let jury determine credibility of P

Forsyth v. Joseph Affirmed judgment for P, D excessive speed Speed limit 55 mph, D testified going 55 mph at point of impact Skid marks consistent Do you think D misspoke when he said he was going 55 at point of impact? What should his attorney have done? Circumstantial evidence evidence of one fact permits an inference of another Skid marks XX, could infer speed YY Jury decided what inferences to be drawn from facts May need expert to assist in drawing inference

Experts and Non-experts

Non-experts can not give opinions on ultimate issue Experts can give opinions or conclusions w/in the field of their expertise Problem w/experts disputed opinions, How do jurors decide: credentials, likeability

Kibler v. Maddux Facts not in dispute so should judge grant Ds s.j.? What do you argue? Reasonable people could draw difference inferences from the facts so, no s.j. Lawyers role not so much to discover and present facts but, to persuade jurors re: inferences to be drawn from facts How can lawyer persuade jurors to characterize Ds conduct as negligence from the facts? D driving slowly so, speed not best argu. Must identify conduct that D should have changed: 1. small kids may run in street drive slower 2. sounded horn

District of Columbia v. Shannon P lost her thumb on slide maintained by city (Slide manufacturer settled) Issue: Do jurors need expert testimony to help them determine if city exercised reasonable care in maintaining playground? No if w/in common knowledge of jurors

Hammons Inc. v Poletts P injured when towel bar pulled from wall Wall behind towel rack rotted and crumbly Does P need expert testimony to give an opinion about the type of material behind the tile and how long it would take for the disintegration of the material? If a jury can reasonably infer, by common knowledge and ordinary human experience, that the did or did notexercise reasonable care, expert testimony is not needed

Thoma v. Cracker Barrel Slip and fall case in a restaurant If there is no disputed facts about an eee spilling liquid on the floor during the time that P and witness, McNeal, were at the restaurant, is D entitled to s.j.? Answer: NO P can establish a prima facie case by showing that 1) D created a dangerous condition or 2) that D had actual or constructive notice of a dangerous condition and failed to exercise reasonable care by not discovering and cleaning it up w/in a reasonable time

What inferences can be drawn from the facts? 1) that an eee spilled liquid in the area 2) an e-ee saw spilled liquid in the area and did not clean it up What facts are import for these inferences? 1) only e-ees carry food or drink in area 2) this area is traversed regularly What if the eees did not cause the spill and did not know of it? (providing the jury believes there was a spill) Jury may make inferences on whether in the exercise of reasonable care, eees should have discovered and cleaned it up. (size of spill, amount of traffic in area)

3 Theories of Slip and Fall 1. D created the danger and failed to take reasonable steps to clean it up (like a spill on the floor) 2. D did not create the danger; but, knew or should have discovered it and failed to clean it up (constructive notice) 3. Ds mode or method of doing business provides foreseeable risk of others creating dangerous condition and fails to take reasonable measures to remove risk (vegetables spill on floor from display case or self-service areas)

How to prove D should have discovered danger P must prove that the substance had been on floor for relatively long time Jury is permitted to infer that a reasonable person would have discovered the substance and cleaned it up If evidence shows substance only present for a short period of time, P has failed to prove constructive notice

Evaluating Reasonableness If evidence shows that a piece of okra was on the floor for an hour, how does jury determine whether this is an unreasonable amount of time for the store not to discover it Volume of customer traffic in area Risk-utility test Consumer reasonable expectations

Various rules to help P in slip and fall cases Some courts give Ps leeway allowing juries to decide on case by case basis how long is enough for a reasonably prudent person to discover danger

Tenn. Court said: negligence based on pattern of conduct, a recurring incident, or a general or continuing condition indicating the dangerous conditions existence ( very different to say dangerous spills may occur from an actual spill that D should have known about

Wal-Mart Stores, Inc. v. Wright P slipped on a puddle of water in Ds outdoor garden area Parties stipulated to admission of Wal Marts eee documents or Store Manual Standards set by Wal-Mart may exceed ordinary care Wal-Marts standards are a subjective view jury must apply an objective standard of ordinary care

Duncan v. Corbetta P injured when descended exterior stairway at Ds residence and top step collapsed Use of nonpressure-treated lumber was permissible under applicable building code What evidence did P wish to introduce? Why? P wanted to introduce expert testimony that it was common practice to use pressure-treated lumber in construction of stairways like Ds Proof of a general custom and usage is admissible to establish standard of ordinary care even if ordinance sets minimum safety requirements which the custom exceeds

Custom Evidence R. 3d: departure from the custom of the community, or of others in like circumstances, in a way that increases the risk is evidence of negligence but does not require a finding of negligence

What Custom Proves Harm was foreseeable or D knew or should have known of risk or Risk was unreasonable unless the customary precaution is taken (or at least unreasonable in the opinion of the relevant community) or Safety precaution was feasible

Safety Manuals Can be introduced into evidence safety codes admissible as evidence of what is customarily done but, does not necessarily set the standard of care

T. J. Hooper D failed to have radio receiver on board the tug

Had there been one, the captain could have avoided the storm that cased the barges in tow to sink D argues that it was a custom of the industry NOT to have radios Rule: one may be in compliance w/custom & still be negligent D may introduce evidence of no custom & argue, therefore, no negligence But trier of fact is not bound to believe that the current custom reflects due care

Elkerson v. North Jersey Blood Bank Man died received transfusion of blood allegedly tainted with hepatitis P introduced evidence that better test was available to detect hepatitis - but, that no blood banks used the better test What did the judge instruct the jury? D was to be judged by standard of practice of blood banks at the relevant time How does this square w/T.J. Hooper?

Actual Harm and Cause-in Fact

Right v. Breen claimed he suffered bodily injury resulting in both economic and noneconomic damages Jury awarded $0 Trial judge awarded nominal damages of $1 and awarded costs to P; appellate court affirmed, why? Whether P is entitled to nominal damages in a negligence claim, where no actual damages are proven? NO, why not? Common law made distinction b/t intentional and unintentional conduct for purposes of nominal damages Do not want to clutter the courts with trivial matters Is someones negligence toward another trivial? Why should P collect for a no-harm intentional tort and not a no-harm negligence?

Note Cases P wrongly give pitocin (a drug to induce labor) instead of his chemotherapy. Further, the nurse administered the drug 3 times the rate ordered for the correct drug. Drug changed Ps heart rate, blood pressure, swelling. Is D entitled to summary judgment? What arguments would parties make? What about if D administered a drug that changed the hearts reset time for the next heartbeat, but no other physical harm.

Damages Recoverable

Past and future medical expenses Loss of wages or earning capacity Pain and suffering (including emotional harm) Special damages (specifically identifiable costs such as expenses to travel for medical care)

Hale v. Ostrow P tripped over crumbling sidewalk when having to leave the sidewalk because Ds overgrown bushes blocked sidewalk (P tripped as she looked up checking for traffic in the street) Ds conduct is a cause-in-fact if, as a factual matter, it directly contributed to Ps injury But for Ds negligence, would P have been injured? Does Ds conduct have to be the sole cause?

Salinetro v. Nystrom P in car accident, had X-rays to check for back injuries D, Ds receptionist or X-ray technician did not ask P if she was pregnant In fact, she was 4 weeks pregnant, her OB/GYN performed a therapeutic abortion, fetus was dead But-for, Counterfactual Test o What would happen if the D had acted non-negligently o Imagining something that did not happen o Need to identify the specific negligent act in order to apply the but-for test o Suppose Dr.s negligence was failure to test for pregnancy if test turned out positive then but-for analysis would establish cause-in-fact In Hale, would P have tripped on the crumbling sidewalk if the bushes had not blocked the sidewalk? If so, what about Ps negligence claim? For actual case, if harm would not have occurred absent the negligent conduct, then no causein-fact (unless court applies a substantial factor test or allows the P to go against multiple actors despite the fact they are not acting in concert)

Note D backed out of the driveway w/out looking into the rearview mirror; however, P was squatting behind the rear bumper where she would not have seen him even if she looked?

Actual vs. Proximate cause Actual cause, also called cause-in-fact is different from proximate cause Actual cause is a factual issue Proximate cause is a policy judgment Courts often mix up the two or lump them together P can prove that D is the cause-in-fact, but still lose on proximate cause

Elements of Negligence Remember, 5 elements in negligence: o 1. Duty o 2. Breach o 3. Actual damages o 4. Cause-in-Fact o 5. Proximate Cause Never get to proximate cause issue if P fails to prove element of cause-in-fact

Res Ipsa Loquitur and But-For Cause If doctor leaves sponges in Ps abdomen after surgery, good case for getting to jury Answers the Duty and Breach elements What if P suffers from Cancer Does Res Ipsa help P on the cause-in-fact element? If patient developed cancer after Dr. left sponges in abdomen is it within the common knowledge of lay persons that this would cause cancer?

Cause-in-fact when two or more Ds When two or more tortfeasors cause divisible or separate injuries, the amount of their respective liability is determined by causal rules Each is liable for what he caused, no more, no less If D1 caused a broken arm, he is liable for that but, if D2 caused a broken leg D1 is not the but-for cause of Ps broken leg D1 and D2 would not be jointly liable for all the injury unless special rules apply (joint venture) When 2 or more tortfeasors are the but for cause of a single indivisible injury, causal apportionment is not possible The responsibility of each tortfeasor must be determined by some form of fault apportionment Ex o If D1 negligently runs into an animal and leaves the carcass on the road and D2 negligent drives running into the carcass causing injury to his passenger, both D1 and D2 are the but-for causes of Ps injuries o But for D1s negligence, would P have been injured? o But for D2s negligent driving, would P have been injured?

Some Ds not a but-for of all the injury Going back to D1 and D2, each causing a separate injury D1 causes Ps broken arm D2 causes Ps broken leg Suppose the doctor treating both breaks is negligent causing injuries to be worse, so that it takes a longer time for P to heal

What injuries are D1 and D2 the but-for cause What about the doctor? How does joint and several liability work in this case? D1 would be liable for the broken arm and delayed healing (but for D1s negligence, P would not have been injured and required medical service creates the risk of malpractice) D2 would be liable for the broken leg and delayed healing Dr. liable for the delayed healing of Ps broken arm and leg

Actors who are liable, even though their conduct is not a but for cause Vicarious Liability liability for the fault of others even though there is no fault on the part of the actor Respondeat Superior Eers /Eees Partners Co-conspirators Joint ventures Acting in concert When there is concerted action acting in concert or vicarious liability, J & S liability attaches with contribution and indemnification (where innocent party is indemnified by negligent party) Ex. o A & B race on highway in violation of the law o A crashes into P o Both A & B are liable under J & S liability

Landers v. East Texas Salt Disposal Co. Two polluters, each presumably dumping sufficient pollution to cause harm, have ruined Ps lake, killing fish. These two polluters did not act in concert How is P supposed to make his prima facie case? But for East Texas Salt Water Disposal Cos pipes breaking and spilling 10 15 thousand barrels of salt water into Ps pond, Ps fish would not have died (still would have died) But for Sun Oil Company negligently causing large amounts of salt water and oil to flow into Ps pond, Ps fish would not have died (still would have died) RULE o Where the tortious acts of two or more wrongdoers join to produce an indivisible injury an injury which cannot be apportioned with reasonable certainty to the individual wrongdoers, all of the wrongdoers will be held jointly and severally liable for the entire damages Can the jury determine how many fish the first tortfeasor killed and how many the second tortfeasor killed? If so, then there would be causal apportionment

But, since the jury cannot, there is J & S liability - jury must determine what % of entire damages each D is at fault (fault apportionment)

Anderson v. Minn., St. Paul RR two fired combined and spread to Ps property first one was negligently set by D, The other fire may have been an innocent one caused by lightening The but-for test would relieve D of liability if the other fire would have burned the Ps property even in the absence of the Ds fire. P cannot say that but for Ds negligence, Ps property would not have suffered damage. If fire negligently set by one RR combines with a fire negligently set by another RR, the two RRs will be jointly and severally liable So, why let D off the hook, just b/c one of the fires combined with Ds negligently set fire was caused by nature (or non-negligently set) Duplicative Cause but for test does not work, the substantial factor test is widely accepted o If each of the two fires in Anderson would have burned the Ps property regardless of the other fire, this is duplicative causation and each is a cause.

Preemptive Causation D1 poisons Ps tea; D2 shoots P, killing P before P was able to drink the poison tea, which would have killed P. As a factual matter, P died from a gun shot, not from poison. So, D1 is not a cause-in-fact of Ps injury

Substantial Factor In duplicative cause cases, where the but for test does not work, the substantial factor test is widely accepted. If 2 or more causes concur to bring about an injury, then cause-in-fact is established by the substantial factor test Either the but for or substantial factor test will establish cause-in-fact

Third Restatement Does not use the substantial factor terminology; but, says: If tortious conduct of one tortfeasor, A, fails the but-for test, only because there is another set of conduct also sufficient to cause the harm, As conduct is still a cause in fact or factual cause

Indivisible injury with Numerous Ds Does it make sense to hold Ds jointly and severally liable when there are numerous Ds. If P was exposed to toxins in the work place from 55 different Ds, that toxins from these products entered his body and each toxin was a substantial factor in bringing about, prolonging

or aggravating cancer, is this sufficient to show causation? If yes, what is left to be decided in the case, if anything? In toxic torts, often have many Ds contribute to the harm. Suppose lead paint caused brain damage; it is impossible to know which of 10 companies that produced lead paint at the time was responsible for the individual Ps brain damage. Would it be fair to say that each D was a substantial factor in Ps injuries. How to apportion damages? o I think she said that in those cases the one who has the highest market share was the one who took the most fault and so on but all would be responsible

Increased Risk showing Causation If Ds negligence increases risk of harm; but, harm might have been caused by several factors, should P be able to get to the jury on a inference of causation drawn from increased risk? D negligently fails to have a lifeguard on duty at a motel. Child drowns. Would a lifeguard have saved the child? In these cases, courts allow juries to find that Ds negligent act or omission was a cause-in-fact of Ps harm. If Ds act is negligent b/c it increases the chance of a particular type of accident and That type of accident did occur, this is enough for jury to infer that the negligent act caused the harm. It is up to the D to bring in evidence rebutting the but for cause and suggesting that Ds conduct was not a substantial factor

Tillo v. Eagle If OBs negligence caused all of Desirees brain damage, then under the preemptive cause argument, Dr. Eagle, may avoid liability for brain damage (although he might still be liable for separable injuries such as pain or other physical harm resulting from jaundice) If cannot know whether all damage had been done and cannot know how much caused by each D, then the single indivisible rule would apply.

Dillon v. Twin States Gas & Elec. Boy is falling off a bridge and will (it may be hypothetically assumed) certainly die when he hits the rocks below. Before this happens, he grabs Ds electric wire to save himself. He is electrocuted. D is liable, but for what? P would argue D is liable for wrongful death What would D argue? D would argue that P would have fallen and been seriously injured (if not dead); therefore P would be in a seriously injured condition with less earning power. D, then, would argue its liability should be lessened based on lessened earning power as though P had already been crippled when he was electrocuted. What if P was killed in an auto accident and had terminal cancer. What would D argue? o Decedent had terminal cancer:

D is liable for causing the death, but damages are based on decedents limited life expectancy.

Hypo D negligently injures the Ps leg causing both pain and a permanent loss of earning capacity. Just before trial of the Ps claim, a robber shot the P in the injured leg. Amputation was required. Can D now argue he has not caused permanent loss of earning capacity, since P would have lost his leg anyway. Does Dillon support Ds argument of less $$? Dillon does not support Ds argument that P receive less damages because P ended up losing his leg. Dillon suggests that conditions existing at the time of the tort could be considered in valuing what lost was caused.

Summers v. Tice 2 Ds shooting quail in the direction of P. P received minor injury to his eye (the major injury) and upper lip. One of the Ds is definitely NOT a cause and his act would not have been sufficient to cause the harm. Is this case like the Landers case (polluted pond)? In Landers, both Ds polluted Ps pond and killed fish. In Summers, one or the other D caused the harm not both. What does the court do? Court treats the Ds as acting in concert. Lets the P sue Ds jointly and severally. Puts the burden on Ds to prove which one of them caused the harm Why is this fair, if only one of the shooters caused the harm? Why shift burden to Ds? o 1. Defendants knowledge maybe threat of liability would force one D to reveal the others culpability if they know who shot P o 2. Tortiously obscuring cause in fact. If one of the Ds had not shot at all, then P would either be uninjured or the P would have good proof against the other D b/c he would be the only one who fired the gun.

State v. CTL Distribution, Inc. 7 truckers delivered substance to a certain business. One or more spilled a hazardous substance. State Environmental Agency sued the 7 truckers. It proved that one of the truckers, CTL, had once spilled substance and argued Summers v. Tice should apply, finding liability against all 7. If you are judge, would you apply that rule? How to apply the Summers v. Tice principle to the 7 truckers. What did the truckers, who did not spill the substance do?

Would the other D in Summers v. Tice had been J & S liable if he did not shoot his gun? Is there anything faulty about delivering hazardous wastes or caring a gun while hunting?

Lord v. Lovett Ps neck was broken in a car accident. P claims that Ds failed to diagnose her injury, failed to immobilize her, and failed to provide steroid therapy thereby depriving her of a substantially better recovery although, not clear how much better the recovery would have been (absent the claimed negligence). 3 approaches for lost opportunity for better outcome o 1. Traditional approach If P cannot show that absent the negligence, she would have had a 51% chance (more likely than not) of full recovery, P loses o 2. Relaxed standard of proof of causation can get case to jury if prove that Ds negligence more likely than not increased the harm to P or destroyed a substantial possibility of achieving a more favorable outcome full damages o 3. Lost chance opportunity for a better outcome is the injury. P recovers even if her chances for a better recovery are less than 51% - however, P does not recover full damages for entire injury only for lost opportunity Criticism with loss of opportunity for better outcome it is intangible and not quantifiable for purposes of assigning an amount of damages. P could not prove how much o of a chance she lost because of Ds negligence Relaxed causation tests note 2 o Although P does not meet the burden that Ds negligence is 51% responsible for Ps injuries, P gets full recovery. o How can courts justify this approach?

Gardner v. National Bulk Carriers DUTY TO TRY analysis Seaman lost overboard. He had not been seen for 5 or 6 hours. The ship notified the Coast Guard, but did not attempt to return to the areas where the seaman could have fallen overboard (5 or 6 hours earlier). Court said that captain had a duty to make every reasonable effort to rescue. The duty was to make the effort not so much a duty to rescue. Is this overcompensating if P (estate or survivors) gets full recovery for seamans death.

Evaluating Approaches [loss of opportunity] 3 cancer patient, each with 33% chance of survival if properly treated. D negligently treats each patient. Recovery Total Liablity Traditional - $0 $0 Relaxed Causation - $100K/each $300,000

Lost Chance - $33,333/each Actual damages cause $100,000 to 1 estate

$100,000 $100,000

Alexander v. Scheid A delay-in-diagnosis case. Dr. did not compare old & new chest X-rays as suggested by radiologist. P had a mass that was not discovered until she went to another Dr. Loss of chance of survival or increased risk of harm is viewed as an injury in itself (not as a substitute for causation)

Dillon v. Evanston Hospital Catheter broke off and remained in Ps body. Pieces of the broken catheter were in Ps heart. P sued Dr. and hospital. JI require: o Evidence of increased risk of future harm o Damages proportioned to probability that risk of future harm would materialize Some states have passed statutes prohibiting lost chance of recovery after courts have judicially recognized these claims. In applying the MI statute, a court said that a living P whose 10 year life expectancy had been reduced from at least 55% to 15% could claim only present injury that included pain and also emotional trauma attributable to Ps unnecessarily worsened condition.

Williams v. Manchester Pregnant P terminated her pregnancy due to injuries and risks to her own health in continuing the pregnancy (she had a pelvic bone fraction). Illinois Supreme Court denied recovery of the fetuss increased risk of future harm b/c it was not a present injury for which the fetus could have brought an action against D.

Proximate Cause
What is Proximate Cause? Case by case analysis determining whether Ps injury was within the foreseeable scope of risk created by Ds negligent conduct Dr. negligently performs vasectomy, a child is born, the child burns down Ps house at age 6. Can P sue the Dr. b/c but for Dr. negligently performing vasectomy, child would not have been born and would not have burned Ps house. FAR REMOVED = burning of the house. Child being born cause in fact of doctors negligence and proximate cause b/c within foreseeable scope of risk

Medcalf v. Washington Hts. Condo P claims that Ds failure to maintain the electronic buzzer system was negligent, the cause-infact and proximate cause of her injuries Jury found for P D appeals b/c D not the proximate cause of Ps injuries But-for or substantial factor test - cause-in-fact Proximate cause language foreseeable scope of the risk

Proximate Cause Harm caused to P must be of the same general nature as the foreseeable risk created by Ds negligence. What is the foreseeable risk of the electronic buzzer system not working?

Abrams v. City of Chicago P claims that Ds failure to send an ambulance to take her to the hospital when contractions where 10 minutes apart, necessitating her friend driving her to the hospital was negligent, the cause-in-fact and proximate cause of Ps injuries and childs death Trial court dismissed claim Was traffic accident within the foreseeable scope of risk of not sending an ambulance? NO. b/c many women reach hospital safely without an ambulance

Palsgraf v. Long Island RR Mrs. Palsgraf earned the limited immortality of the law books simply by standing in the wrong place on a Long Island Rail Road platform in August 1924, when she was taking her daughters from East New York to Rockaway Beach on a hot summer Sunday. As two trainmen helped a passenger board the Jamaica express, they dislodged a small package of fireworks he was carrying. It fell to the rails and exploded. Twenty-five feet away, a penny weighing machine jarred by the blast fell on top of Mrs. Palsgraf. She went into shock, was hospitalized and never really recovered. Until her death in 1943, she was plagued by stuttering, dizziness, headaches -and indignation. Reversing a Brooklyn jury, the New York Court of Appeals held that she was not entitled to damages from the railroad. Cardozo blurs duty & breach o Not a wrong to P No breach fireworks were covered in newpaper o Proof of negligence in the air, so to speak will not do o Risk defines duty risk to those w/in range of apprehension o Not a p/c issue [p/c = proximate cause] Case can be made against the carrier of fireworks but not the railroad.

D liability 1. For types of injuries foreseeably risked by Ds negligence and

2. To classes of persons foreseeably risked by Ds negligence

Role of foreseeability and P/c Cardozo Foreseeability in terms of persons w/in the radius of danger or range of apprehension A reasonable person in Ds circumstances should have foreseen that his conduct risks injuries of the same general type that occurred to a general class of persons of which P belongs.

Modern Scope of the Risk/ Foreseeability approach When courts are concerned with scope of risk questions, they use Andrews proximate cause terminology with Cardozos foreseeability test. Proximate cause emphasizes foreseeability in some form as a limitation on liability

Rescue Doctrine Danger invites rescue What does Cardozo mean by this? If D negligently caused a car accident and a driver was injured in a car. If a good Samaritan came along to rescue the driver injured in the car and was hurt in the process, would the negligent driver be liable for the rescuers injuries? Rescuer can recover from the D whose negligence prompts the rescue. Rescuer liable to D when he negligently injures or endangers himself and P is injured in trying to rescue D.

Violation of Statute and P/C A statute prohibited laying out poison. D gave rat poison to his tenant, a coffee shop. The coffee shop put poison near the coffee burner. P was injured when she lit the burner and it exploded b/c of its phosphorous content. Class of persons Type of harm foreseeable scope of the risk Phosphorous content being cause on fire was probably not a foreseeable risk

Hughes v. Lord Advocate Post office eees working on underground telephone cable took tea break leaving manhole uncovered 8 year old fell into hole as result of an explosion (when lantern dropped in manhole) P severely burned Lower court held in favor of D though burns were foreseeable, the vaporization of the kerosene and explosion were not. Court would allow the appeal Did not matter that injury came about in an unforeseeable manner

I think the eees were held liable b/c they left an open manhole unattended with lit lanterns and a camp. Court have foreseen a fire developing Negligent actor is liable only for the kinds of harms that are foreseeable based on the negligent act

Doughty v. Turner Manuf. Co. Lid fell into vat of molten liquid; lid did not cause splashing which would have been foreseeable Instead there was a chemical reaction b/t material of lid and molten liquid which erupted underneath the surfaced and burned P How to reconcile: o Hughes fire & explosion 2 variants of the same harm o Doughty splashed liquid & burning from eruption due to chemical reaction of lid & same liquid NOT variants of same harm

Hammerstein v. Jean Develop. West P, 70 years old, guest at Ds hotel; hotel knew he was a diabetic and walking stairs was bad for him. There were no rooms on the ground floor; but there was an elevator A fire alarm went off, P had to walk down from 4th floor, twisted his ankle. Blister developed became a gangrenous infection probably due to his diabetes. There was no fire and fire alarm had falsely gone off several times previous and never corrected. What is the forseeable risk of harm walking down flights of stairs? o Someone might get injured coming down the stairs

McCahill v. NY Transportation Co D ran into P, who suffered broken thigh. In hospital, P began to suffer from delirium tremens and then died. Is Ds negligence the proximate cause of Ps death?

Thin Skull Rule Does not impose liability w/out fault Remember the case of the boy who was on the bridge about to fall, braced his fall by holding on to the uninsulated wires and was electrocuted. Why could jury consider limited damages (difference b/t falling and electrocution) but in McCahill case (alcoholic whos thigh was injured, D is responsible for Ps death D does not escape liability for unforeseeable personal reactions of the P, once negligence is established D liable for full extent of Ps harm, even where extent of harm was unforeseeable, where the other elements of a prima facie case are established.

Intervening Causation and PC

Many ways of articulating proximate cause Overall: Foreseeable Scope of the Risk But, there can be many Ds. Just like there does NOT have to be one sole cause-in-fact, there does not have to be one sole proximate cause So, notion of intervening /superseding causation becomes part of the PC analysis D1 - - - - - - - - - - - - - - D2 - - - - -- - - - -- Ps harm D1 drove negligently injuring P, requiring P to get medical attention D2 negligently treated P Although an intervening tortfeasor (D2), medical negligence of D2 does not cut off liability of D1 Is there a natural and continuous sequence, unbroken by any efficient intervening causes between Ds negligence and Ps injury When tortfeasors act in sequence (D1 is negligent, then D2 is negligent both can be the butfor (C-I-F) of Ps injury, but are both the proximate cause If there more than one tortfeasor (D1 negligent, THEN D2 negligent) acting in sequence, the first tortfeasor tries to argue that second tortfeasor is a superseding cause cutting off liability of the first tortfeasor An intervening cause does NOT cut off liability of the first tortfeasor When is a second tortfeasor a superseding cause or just an intervening cause An intervening act of D2 should relieve D1 of liability only when the resulting harm is outside the scope of risk negligently created by D1 If resulting harm to plaintiff caused by D2 is within the scope of the risk created by D1, then D2 is NOT a superseding cause and both D1 and D2 are proximate causes of Ps injuries. Some courts decide PC discussing intervening causation without analyzing scope of the risk. Medcalf case (P harmed by criminal attack when buzzer failed). Court said, criminal acts are not within the scope of the risk created by Ds negligence of the faulty buzzer) Another articulation: intervening criminal actor is a superseding cause cutting off Ds liability

When Intervening Act is criminal or intentional Old view: Intervening criminal act is a superseding cause of Ps injury and cuts off liability of first tortfeasor (Watson v Kentucky & Indiana Bridge & RR) Modern view: In D1s negligent act exposes P to an intervening criminal act then D1 is still a PC (criminal act is not a superseding cause) If criminal act is within the scope of the risk created by D1s negligence then D1 = PC (Hines v. Garrett)

Delaney v. Reynolds What relevance to place on Ps attempted suicide P & D live together, D police office, keeps loaded gun, unlocked in bedroom o D knows that P is depressed and has substance abuse problems o D kicked P out of his house

P took his gun, pulled trigger twice, but did not fire, then put gun under her chin and pulled trigger gun went off P harmed Old rule: suicide or attempted suicide was a superseding cause as a matter of law cutting off liability of D Dont apply old rule Would allow jury to hear and consider whether risk of P using Ds gun to inflict an intentional injury on herself was foreseeable and that Ds failure to secure his gun was a PC of Ps injuries

General Rule Most jurisdictions follow general rule that Ps suicide or attempted suicide is a superseding cause EXCEPT: Where Ds negligence induces a mental illness or impulse to commit suicide Where special relationship exists b/t P & D and D knows or should know of Ps risk of committing suicide (Dr./patient)

Negligent Intervening Acts Derdiarian v. Felix Contracting Corp Negligently maintaining work site; What is the intervening cause Look at issues re: PC o Is intervening cause extraordinary o Is intervening cause independent of or far removed from Ds conduct o Is intervening cause a foreseeable, normal and natural risk created by D o Precise manner of intervening act need NOT be anticipated Intervening Act o driver who loses control of car b/c of seizure forgot to take his epilepsy medicine at proper time.

Ventricelli v. Kinney System Rent a Car P leased car from Kinney w/defect trunk lid. P stopped to secure the trunk and car parked behind jumped ahead and ran into P. Issue: Is Kinney (renting a car with a defective trunk) the proximate cause of Ps injuries Arguments o D: Kinney is a cause but for, but NOT pc P parked in a safe place collision between parked vehicles not foresseable o P: renting a car with defective trunk foreseeable that driver would stop and try to close the trunk. The very danger D exposed P to, is what happened, resulting in injuries

Marshall v. Nugent P run over by on-coming car, when P tried to warn on-coming traffic of truck partially blocking the road

P sued both truck driver (who partially blocked the road) and the driver who hit him Jury found against truck driver Truck driver appeals jury verdict in favor of P on proximate cause grounds claims error for judge not to grant his motion for DV Arguments o Truck driver: Ds negligence merely a condition not proximate cause o P/Court: disturbed waters did not become placid and normal again Plaintiffs injury was not too remote in time or place from the negligent conduct of Defendant. Defendant put Plaintiff in a dangerous situation. It is not decided, however, if Plaintiff was also negligent in his attempt to direct traffic. The jury should decide whether Plaintiff should be barred by his contributory negligence.

Contributory / Comparative Fault

Affirmative defenses burden of proof falls on D Different than saying P has not proved proximate cause or established a prima facie case Tort Reform Legislative statutes have changed some of the common law of Torts, so when practice must look at statutes There are other bars to Ps claim, including limited duty rules and procedural obstacles

Butterfield v. Forrester D left pole in road P riding his horse ran into it and was injured Issue: Whether Ps riding horse fast and could have avoided the pole by passing on other side constitutes contributory negligence Procedure: Was trial courts jury instruction correct if jury finds P could have reasonably avoided the obstruction by ordinary care, they should find for D, YES Establishes rule of contributory negligence as complete bar. Judges tend to give different reasoning: o 1. Accident happened entirely from Ps fault, so Ps negligence is a superseding cause o 2. D is not negligent at all b/c he could expect that the P would take care of himself (Stinnett v. Buchele) o 3. Contributory negligence of P is a reason for denying recovery, independent of either superseding (Ps negligence) or no-fault (D) arguments

Different Articulations Why does it matter whether the court bases its ruling on no fault, no duty, or contributory negligence Does it matter in terms of outcome NO under the old rule of contributory negligence, P loses complete bar to Ps claim But, w/comparative fault systems a finding of contributory fault might only reduce damages w/out completely barring Ps claim

A finding of no negligence or no proximate cause means P has not proved an element of the prima facie case and would recover nothing

Terminology One who fails to exercise reasonable care for her own safety is guilty of contributory negligence The Legal Effect of the plaintiffs contributory negligence (or contributory fault) under the traditional rule was to bar Ps claim P lost The Legal Effect of contributory fault has changed in most jurisdictions under comparative negligence systems While Ps negligence can still be referred to as contributory negligence or fault in most jurisdictions the legal effect is to reduce Ps recoverable damages not bar Ps claim Modern terminology is comparative fault or comparative negligence or comparative responsibility important is to understand what the legal effect of Ps negligence or fault is in the particular jurisdiction Restatement of Apportionment refers to comparative responsibility

Restatement of Apportionment Later on, we will see that Ps negligent conduct did not reduce damages if D was liable for an intentional tort or under strict liability (products liability for instance) Now, the Restatement of Apportionment and many jurisdictions allow juries to reduce Ps damages even if P negligent and D guilty of intentional tort or subject to strict liability Thus, comparative responsibility

Different forms of Comparative Fault/Negligence Pure comparative negligence (Florida) Ps damages are reduced by whatever percentage of fault jury assigns to P Modified comparative negligence P recovers only if Ps % of fault 50% or less (not greater than D) Wisc. Statute P recovers only if Ps % of fault is 49% or less (bar if Ps fault is as great as the combined fault of all other persons)

Crownover v. City of Shreveport W/red light, P.O. drove police car through intersection, then turned on his overhead lights and perhaps siren. P had green light, ran into police officer and was injured Affirmed jurys determination that Police officer 100% at fault Factors to consider when attributing shares of fault: o 1. Did conduct result from inadvertence or was there an awareness of danger o 2. How great a risk conduct created o 3. Significance of actors conduct o 4. Capacities of actors

o 5. Extenuating circumstances These factors are not part of the elements P must prove but can be considered

Problem: P (5%) v. B (10%), C (40%) and D (45%) If all parties suffer $100K, what damages will each party receive Pure Comparative Negligence WI bars 51%, no aggregation (modified) ND bars 50%, yes aggregation (modified) Pure C.F WI bars 51% N.D. bars 50% no aggregation Yes aggregation P - $95K $95K v. B, C, & D $95K (B, C, D) B - $90K $90 v. C & D $90K C - $60K $60K v. D $60K D - $45K $0 $55K

Wassell v. Adams Women stayed in motel in high crime area of Chicago near military base where husband stationed Susan Wassell was from a very small town, had not traveled much She opened her motel door to stranger thinking it was her husband he raped her She sued motel for negligence Appellate court upheld jury fault assessment. Jury determination: P (97%) v. Motel (3%)

Sollen v. Wrangler - Note 3 Demonstrates a different system of modified comparative fault (than WI) bars 50% and greater - and blindfold jury about effect of its fault assessment When jury assessed P & D each 50% fault. Jury did not realize that the verdict meant no recovery for P On appeal?? Allowing jury to reduce Ps damages to whatever it considers to be equitable and just Jury found D more negligent than P and that P suffered $250K in damages Jury awarded P only $40K Court upheld w/in jurys discretion

Restatement (3d) of Torts Apportionment of Liability Factors for Assigning Shares of Responsibility: Nature of persons risk-creating conduct

o a. Awareness or indifference of risk o b. Intent w/respect to harm created by risk Strength of causal connection b/t persons risk-creating conduct and harm Is this like equitable & just approach??

All or Nothing Judgments after Comparative Fault 1. P does not make prima facie case 2. No comparative negligence on Ps 3. Ps negligence is not a cause-in-fact of Ps injury 4. Ps negligence is not the proximate cause of Ps injury 5. Ps negligence is a superseding proximate cause

Mitigation of Damages Rule Avoidable Consequences or mitigation of damages required P to minimize damages by reasonable effort and expense. Example take antibiotics for injury Wear a seatbelt Is this now comparative fault?

When Policy or Justice Negates Application of Comparative Fault McNamara v. Honeyman Hypo Bexiga case P negligently operated a power press in such a way as to put his hand in the machine as it came down crushing his hand. P sues manufacturer of machine claiming that manufacturer could have designed a safety feature to protect against workers hand injuries. Should jury consider Ps comparative negligence in a negligent design case? The negligence of the plaintiff was the exact situation that the safety devices were designed to prevent from happening Court says it wouldn't make sense to say that defendant has a duty to install the safety devices, but wouldnt be liable for a breach of that duty. So they conclude that contributory negligence as a defense is not available. RULE: Defendant had a special duty to protect the plaintiff from plaintiff's own fault. Decedent hangs herself while patient in mental hospital. Why shouldnt decedents suicide be a superseding proximate cause OR at least the basis for reduction of damages based on comparative fault? Because P in custodian care of D AND Ds duty of care included preventing self-harm or suicide

Mercer v. Vanderbilt Note 2 If plaintiff suing doctor for malpractice was the result of his own injuries which necessitated medical care, should the medical malpractice defendant be able to raise comparative fault? P drove with a high blood alcohol level causing an accident and severe injuries When at the hospital, nurse forgot to check how much oxygen was in the ventilator Ventilator ran out of oxygen P suffered further injuries. o P argued that the ventilator caused Qualls injuries. o D argued that it was alcohol poisoning and/or the car accident. D admitted that the nurse violated the standard of care by not refilling the tanks. Patients are entitled to non-negligent medical treatment, even if their own negligence is what caused the initial injury requiring medical treatment.

Statutory Duties Some statutes impose a duty on a particular defendant to protect vulnerable Ps against their own comparative/contributoy negligenc. Ex: Statutes requiring school buses to remain stopped until school children cross the road Or require cars to stop when school bus picking up and dropping children off

Nonreciprocal (non-mutual) risks and known disability Policy factors in allocation of risks to D: o 1. Where special relationship exists and D knows of Ps disability and P creating danger only to himself (case 1) o 2. Minor creates risk for himself and others; other driver knows he is dealing w/minor but does not exercise reasonable care to protect against minors negligence o 3. Mentally disabled person walking on wrong side of the road wearing dark clothes; creates a risk to himself, not others o Speeders inflicting risk on each other but D has no reason to know that P is a minor

Christensen v. Royal School District Student and parents sue School District and principal for damages due to teacher molesting her (negligence in hiring and supervising teacher) Issue: Can District and principal raise affirmative defense of contributory fault (alleging she voluntarily participated in sexual relationship w/teacher) Procedure: P moved for partial SJ to strike affirmative defense. Trial court deferred ruling pending certified question to Wash. S. Ct. Reasons why no C.N.: o 1. Special relationship in schools custody o 2. Duty to protect from reasonably anticipated dangers o 3. P lacks capacity to consent to sexual abuse

o 4. P under no duty to protect herself from being abused o 5. Goal of preventing and deterring child sexual abuse Dissent: o Minors responsible for C.N. in many contexts o P lied about her involvement w/teacher when school met with her and her parents o Mature students (still minors) can seduce male teachers then sue school for damages School can still defend that not negligent What purpose do no duty rules serve? o Particularly in Christensen case where court said student had no duty to protect herself from sexual abuse.

LeRoy Fibre Co. v. Chicago . . . RR D RR created risk of fire. Abutting landowner, P, stacked flax on land for use in his manufacturing business. P claims RR negligently set fire and destroyed his flax. Issue: Can RR raise affirmative defense of contributory negligence on part of landowner, P o [placing flax too close to railroad (50 feet or yards distance)] NO: Property rights dont have to use own property to avoid others wrongful use of their property Notion of entitlement rather than an individualized judgment about Ps fault

Property law v. tort law Emphasis on right to freely use property may be at odds with tort goals of promoting safe conduct and judging case by case on the facts. Rights or entitlement: Walking alone at night in dangerous area? Wearing expensive jewelry in high crime area?

Rescue Doctrine No contributory negligence against a rescuer unless he or she acted recklessly. Why? We dont want to discourage people from helping another. They will be discouraged if they know they will be held liable

Last Clear Chance or Discovered Peril A doctrine that relieves P of the harsh all-or-nothing effect of contributory negligence When P is put in a helpless situation due to her own negligence, may still be able to recover if D had the last clear chance to avoid injury by his negligent conduct

Davies v. Mann P left his animal chained in the road eating grass.

D negligently drove a team of horses and wagon and ran over Ps animal which could not move. Under traditional C.N. principles, P loses b/c he was negligent in leaving his animal restrained in the road. Last clear chance allows P to win despite C.N.

Last Clear Chance A rule that allowed P to recover even if contributorily negligent Still an all-or-nothing rule P v. D D alleges affirmative defense of C.N. P alleges last clear chance or discovered peril Last clear chance o D knew or should have known of Ps peril and could have avoided injury caused by his negligence Discovered Peril Doctrine o D actually discovered Ps peril and could have avoided injury caused by his negligence (less favorable to P) These applied only if P helpless & could not extricate himself from danger Should these doctrines be relevant in a comparative fault jurisdiction

Ds Reckless or Intentional Misconduct Under common law, contributory negligence was not a defense if D acted intentionally or recklessly Many jurisdictions allow juries to apportion fault even if P contributorily negligent and D acted intentionally or recklessly Restatement 3d Apportionment of Liability does also depends on jurisdiction

Barker v. Kallash P barred from bring personal injury claim b/c he was involved in illegal activity 15 year old P injured when pipe bomb he was making exploded. He alleged that a 9 year old sold him firecrackers which supplied the explosive powder. No recovery distinction b/t lawful activities regulated by statute (driving beyond the speed limit) and other illegal activity. If P engages in illegal activity which is serious cannot recover. Not a rule of contributory negligence but, a rule of public policy that people should not come to court with unclean hands

Problems with unclean hands doctrine Unpredictable and selective in application Too easy for judges to apply their own moral judgments on a would-be Ps conduct

moral flavor of the month 3. Frustrates goals of tort law and comparative fault system

Assumption of Risk
Boyle v. Rivici unconventional medical treatment to treat cancer, which did not work. P died and wrongful death suit brought. Jury instructed on comparative fault Found for P but, reduced damages due to patients comparative fault ($1.3 million) D alleges jury should have been instructed on express assumption of the risk Patient told treatment was an unorthodox treatment and not approved by FDA Patient told no guarantees Patient understood Dr.s treatment was not standard If jury finds P assumed risk no recovery

Contractual Assumption of the Risk Parties agree on which party should bear the risk of injury even when injury caused by other partys negligence Not changed by comparative fault system Absolute bar to Ps recover

Tunkl v. Regents upon entering hospital, P signed a release absolving hospital from any liability for the negligence or wrongful acts or omissions of eees Issue: Is this a valid release, barring Ps recovery from the hospital Court said not valid: - compulsory assumption of the risk of anothers negligence o 1. Existing duty to public o 2. Nature of service performed o 3. Fairness o 4. Intention of parties In essence an adhesion K one side has all bargaining power

Releases & Exculpatory Provisions Child allowed in day care only if parents signed a release absolving D from any liability of negligence and agreeing to indemnify D if for any reason D held liable, despite the release. Day care knew of the propensities of another child at day care to have sexual contact with other children Ps sue day care for harm to their child Depends on the facts involved. However, a case can be made against child care center

Moore v. Hartley Motors P attends ATV rider safety class, held on property of Hartley Motors, Inc. Before class, instructor Croak asked everyone to sign a consent form and release. P signed the forms. During class, P thrown from her ATV when it struck rock obstructed by high grass. Is exculpatory release valid? Applying some of the factors to determine whether against public policy: o 1. Type of service not essential o 2. Party seeking enforcement does not have a decisive advantage in bargaining power o 3. Voluntary participation in class Release did not conspicuously and unequivocally state a release from partys future negligence Only those inherent risks What are inherent risks of riding ATV or taking ATV class? Court said improper course layout may be actionable if the course posed a risk beyond ordinary negligence related to the inherent risks of off-road ATV riding assumed by release Court applies a cost/benefit analysis to determine whether maintaining the course in manner D did created an unreasonable risk

Express Assumption of the Risk Releases and Exculpatory provisions 1. Promotes freedom to contract who bears risk of liability 2. Court determines if against public policy o (essential service/ o Ds duty to public; o compulsory consent on Ps part; o equal bargaining party) 3. If not against public policy, courts will usually uphold release if: o a. Intent to release party from future negligence is clear and unequivocal AND o b. The event causing Ps injury falls within the scope of the release However, provision does not cover an implied and reasonable presumption that the D will not create an unreasonable risk

Implied Assumption of the Risk Traditionally: implied assumption of the risk was a complete bar to Ps claim if: P knew of the risk Appreciated the danger AND Voluntarily assumed the risk Contemporary: many comparative fault systems treat Ps implied assumption of the risk as consideration of Ps % of fault Primary Assumption of the Risk

as a matter of law and policy, a D owes no duty to protect P from harms inherent in the activity no duty rule (Avila) or no breach of duty Secondary Assumption of the Risk o D still owes a duty of care, but P knowingly encounters the risks associated with Ds breach of duty complete defense to liability OR merged with comparative fault

Avila v. Citrus Community College District In a baseball game, P injured when pitcher on other team allegedly intentionally hit him in the head with a pitch, breaking his helmet (beanball throw) Did D owe P a duty of care as to risks that are inherent in the sport (always owe a duty to NOT increase risks inherent in sport) Did Ps injuries result from risks which are inherent in the sport of baseball? Alleged breaches o 1. Breached prohibition of no preseason games o 2. Failure to prevent pitcher from intentional pitch at P o 3. Failing to provide umpires o 4. Failing to provide medical care (others could) Court ruled o 1. Holding a game did not enhance the inherent risks of baseball. Avila chose to participate o 2. Is barred by PRIMARY ASSUMPTION OF RISK. D owes no duty to P. o 3. Kids play baseball all the time without umpires o 4. Avilas own team had medical staff which could have attended to Avilas needs

Other Sports Cases Sunday v. Stratton Corp P, a 21 year old, had a skiing accident became a paraplegic. P alleged ski struck a small bush on trail that was concealed by snow. D claimed falling an inherent danger of the sport or primary AOR so no duty owed to P Court said concealed brush on novice trail is not an inherent risk. D must use reasonable care to not increase risks

Turcotte v. Fell P professional jockey who won Triple Crown on Secretariat was thrown from horse during a race and became a paraplegic. P claimed rider causing fall engaged in foul riding a violation of NY racing rules Same result as Avila foul riding an inherent risk of the sport primary assumption of risk

Sports Injuries

When injury results from sports event and injured party sues another player many courts apply a standard of recklessness not ordinary negligence Limited duty rules often applied to bar claims by injured spectators of athletic events

Continued Landowner Occupier Duty Rules

OSullivan v. Shaw P dove headfirst into the shallow area of the pool Whether D has duty to warn of an open and obvious danger What is Ps arguments? AOR/Comparative fault why would P argue this o Comparative fault (treating Ps AOR as comparative fault) would reduce Ps damages o assumption of risk, which was abolished by the concept of comparative negligence What does a no duty rule do? landowners are relieved of the duty to warn of open and obvious dangers on their premises because it is not reasonably foreseeable that a visitor exercising reasonable care for their safety would suffer injury from such blatant hazards. This case was not a matter of contributory negligence or assumed risk, it was instead a no duty rule. Since no harm was foreseeable, then there is no duty to warn.

Natural conditions snow and ice some courts follow a rule that landowners owe no duty, not even to invitee, w/respect to dangers that are created by natural accumulation of snow and ice Does not relieve landowner of liability for dangers created by landowners activities that make ice more dangerous

Persons owing duties not just landowners Possessors of land like renters or lessees owe duties to persons on the land Sharing entrants status if A is a guest at a hotel are his or her guests also invitees

Duty to Persons outside of land Where natural condition on land creates a risk to persons outside the land, duty is one of ordinary care Ex: trees that might fall on passers-by if landowner failed to exercise reasonable care to discover danger and deal with it Reasonable care does not require regular inspection of the land to discover hidden dangers that landowner has no notice of

No duty or no breach Seen before that a case may be dismissed based on no duty, no breach, or AOR by P

Firefighters Rule Minnich v. Med-Waste, Inc. What is firefighter rule? How does it apply? To whom? What are policy reasons?

Rowland v. Christian (note on p. 280) One of the first cases to abolish the status of entrant rules to determine duties of landowners California and many other jurisdictions have adopted reasonable care What are some of the pros and cons of abolishing traditional rules and applying reasonable care? Category of entrant approach very complicated. Too many cases focused on how to categorize entrant, rather than on reasonableness of Ds conduct Reasonable care may mean more cases get to jury

Scruti v. NY 14 year old boy electrocuted after crawling through hole in fence in RR yard NY abolished status of entrant rules How are issues such as: 1) trespassing P; 2) AOR; 3) difference b/t dangerous conditions and dangerous activities; and 4) rights of landowners - considered

Recreational Use Statutes Like guest host statutes but, constitutional Owner who opens up property to others for recreational use immune from negligence suits provided a P did not pay to enter or was not expressly invited (rather than permitted) Standard under recreational use statute is willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity

Lessors Use to be that lessors not liable to lessees for injuries resulting from conditions on land A lease considered a conveyance of property Changes over time may be contract claims for breaches of implied warranty of habitability