TORTS NOTES Rules Case Key terms California Profs opinion Issues/categories/causes of action GENERAL 1) Tort is a civil wrong

committed by one person against another, can and usually occur outside of any agreement between two parties. a) Main concern is whether one whose actions harm another should be required to pay consideration for that harm b) Three categories: intentional: D must have know; negligent: D should have known; strict liability: doesnt matter if D knew. 2) Three methods of analysis: a) Fairness: P is compensated for loss. b) Economic analysis: pays for all of its true costs: balancing of costs incurred by v. harm to P c) Loss distribution: how professor sees it. Torts as one part of social welfare system, as compensation is given for losses. 3) Overlap with contracts, crimlaw (but treats matter differently), property. INTENTIONAL TORTS 1) Intent: a) Meaning of intent i) Either D desired to bring about the harm or knew to a substantial certainty that the harm would occur. ii) There need not be proof that the D intended to cause injury iii) Reckless behavior is seldom sufficient to establish an intentional tort b) Burden of proof: i) Burden of persuasion: preponderance of the evidence: enough evidence to make it more likely than not that the fact the claimant seeks to prove is true ii) Burden of coming forward: P or D will to come forward with this evidence 2) Liability of children a) Rule i) a child can be held liable for an intentional tort so long as the child has sufficient capacity to have requisite intent, whether or not he or she understands the wrongness of the act. b) Application i) Garratt v. Daily: kid pulls chair out from under lady when she was about to sit down: child is liable. 3) Liability of the insane a) Rule i) insanity is not a defense to an intentional tort so long as there is an intent to commit the act. Waldron 1

4)

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b) Application i) Williams v. Kearbey: shot and killed people, was found insane. c) Policy i) need to make people responsible for their actions, or the actions of those in their care. Vicarious liability a) Rule i) Respondeat superior: master is responsible for torts committed by employee during time of employment. Doesnt matter if D did anything wrong or not. ii) No vicarious liability for parents of intentional torts of kid. Battery is an intentional: a) Rule i) Harmful touching: no need for P to prove D had intent to inflict injury; Offensive touching: usually must be deemed to offend the personal dignity of an ordinary person; Battery may be defined as intentional unconsented touching b) Application i) Leichtman v. WLW jacor Communications, Inc: blowing smoke in anothers face is battery when the 1. Action is intentional and 2. Either harmful or offensive to a reasonable sense of personal dignity. ii) White v U Idaho: if D knows of Ps particular sensitivity, then can be liable for unconsented touching. iii) Bohrman v. Maine Yankee Atomic Power Co: When federal safety standards are complied with by D, they do not preclude ones liability in a intentional tort if P has sustained damages. c) Notes i) CA: P has burden of proof of lack of consent and intent. Assault: a) Rule i) intentionally placing another in immanent fear of harmful or offensive touching. threat cannot merely be as to future action or conditional; must be near at time, on the point of happening; Inmost jurisdictions, the fear must be reasonable; Mere words alone are seldom sufficient. b) Application i) I DE S ET UX v. W DE S: woman wasnt battered when someone hit the outside of her house, but would have been if they hit her car. ii) Castro v. Local 199 National Health and Human Services Employees Union: woman threatened by boss; apprehension of harm must be immanent, words alone rarely suffice. Transferred Intent a) Rule i) A D who intends to inflict an intentional tort upon one person, but winds up inflicting it upon another, will be held to have the requisite intent to be liable for an intentional tort to that person. Battery, false imprisonment, assault, trespass to chattel, trespass to land. b) Application i) Alteiri v. Colasso: D threw rock meaning to scare one person, ended up hitting another. Was liable. Mistake Doctrine Waldron 2

a) Rule i) if D injures thinking he has legal right to do so, those acts can still be intentional tort. 9) False Imprisonment a) Rule i) intentional, unlawful and unconsented restraint of the movement of one person by another; Must confine within fixed boundaries or be physical force or threat of physical force; There must be consciousness of the confinement. b) Application i) Dupler v. Seubert: woman confined by bosses to office. Was FI ii) Maniaci v. Marquette University: girl held by her university, no FI because uni went through legal process; BUT see malicious intent. 10) Malicious Prosecution: a) Rule i) the intentional institution of a criminal or civil suit against the malicious prosecution P: Filed with probable cause; Filed with malice; Terminated on the merits in favor of the malicious prosecution P (the D in the original suit) b) Application i) Maniaci v. Marquette University: MP not present because Ds hadnt won any case against her, case was still going. 11) Abuse of Process a) Rule i) the intentional misuse of a civil or criminal proceeding for an ulterior motive, can be filed while case is still going. b) Application i) Maniaci v. Marquette University: AoP present because papers were filed with intent of holding her for reasons other than they were intended. ii) REST says the same as above c) Note: can have all three causes of action, can win under one and not the other. 12) Intentional Infliction of Emotional Distress a) Rule i) IIED occurs when the D, through extreme and outrageous conduct intentionally or recklessly causes the victim severe emotional distress. o Mere reckless behavior is sufficient to support the cause of action in some states, including California. This is different from most other torts o Severe emotional distress must result. o Most states, including California, do not require P to prove physical injury. o If the P has special condition that causes them more harm than normal, you are still liable. Somewhat subjective i) Application a) Slocum v. Food Fair Stores of Florida: begins the IIED claim: woman yelled at by store clerk; no IIED because sitch wasnt extreme enough b) Rulon-Miller v. IBM: woman fired bc of her BF. IIED found because of way she was fired, words used to make her feel inferior, etc. c) Doc having affair with wife of couple he serves: liable for IIED because of the relationship present. d) Jones v. Clinton: Jones didnt really prove much emotional distress Waldron 3

DEFENSES TO INTENTIONAL TORTS 1) Affirmative Defenses: D has to plead and prove, after P established PF case 2) Self defense a) Rule i) The force used must reasonably appear to be necessary; Wounding force can only be used to prevent serious bodily harm; Must the D retreat if that is possible; California, by statute includes defending family members under self-defense; So if your mistake was reasonable, then you still have defense of self-defenseSD is an innate thing, shouldnt be held liable as long as acted reasonably. b) Application i) Drabek v. Sabley: snowball case: s-d not an acceptable defense because there was no threat when he acted. ii) Castle doctrine: in your home you can defend it, dont have to retreat. True in some states, not all. 3) Defense of Others: a) Rule i) One is privileged to use force to defend another. Courts are divided as to whether one can use this defense if the person rescued had no right of selfdefense; usually arent liable for mistake. 4) Defense of Property: a) Rule i) One can use that amount of force which reasonably appears necessary in order to protect property; no death or serious injury unless your safety is threatened; If feasible, a warning must be given before force is used. o Most authority is that force likely to produce death or serious bodily injury can never be used in defense of property. Unclear in CA. b) Application i) Springloaded shotgun: this is never ok to do. 5) Consent a) Rule b) Consent vitiates an intentional tort 6) Note a) In California, as well as in many other states, consent is not an affirmative defense., but is part of Ps prima facie case b) In CA, Consent may be explicit or implicit; (i) implied in fact: playing baseball, do you need consent to tag person out? (ii)implied by law: If passed out on the street and doc comes to revive you, that is consent is . Facts dont matter, it is just the law. c) Consent obtained by duress or fraud is not effective d) Consent to an illegal act is ineffective in some states: CA says no liability if there was consent. 6) Defense of Necessity a) Rule Waldron 4

One is privileged to make use of anothers property to prevent harm to the person or to a disproportionately greater amount of property damage; This privilege is conditional and the actor may be liable for any damage to the property used; Most authority holds that if it is a governmental agency asserting the defense, it is a complete defense b) Application i) Vincent v. Lake Eire Tranp. Co: the damaged dock case: DoN is often conditional: someone else cant untie you from dock, but if you do damages during necessity then you still have to pay for it. INTENTIONAL ECONOMIC TORTS 1) Intentional interference with contractual and economic relations a) CA splits into two categories: i) Interference with K Elements: 1. A valid K, 2. D knew of this K, 3. D induced a breach, 4. P suffered damages, 5. Ds actions werent privileged. Buren of proof is in the air. ii) Interference with Prospective Advantage One who o without a privilege to do so, o purposefully induces another not to enter into or continue a business relation with another, o thereby causing harm to the P. iii) Defense of privilege: fair competition, Protecting financial interest of the party advised, Managers privilege, provide truthful information or give honest advice requested; Courts are divided on burden of proof (CA puts on P, so P has to prove a negative, that they werent privileged, which is difficult). The privilege of fair competition is broader in an action for interference with prospective than is the same privilege in an action for interference with K. K at will can fall under either, but under PA there are more privileges for justification. b) Application i) Lowell v. Mothers Cake and Cookie Co. (CA): mom wont let you sell business case: screwed whether they told buyer or not: there is II, but could also be a defense of privilege. In Ca, P has this burden of proof, which is difficult as it is proving a negative. ii) Texaco v. Pennzoil: the three way oil contract case: was IK even though there was no solid K yet because parties had agreed on terms and intended to be bound. iii) Env. Planning and Information Council, Superior Court: economic interference was legal because of 1st amendment rights to free speech. 2) Wrongful Termination a) Rule i) In every employment contract (even at will) is an implied covenant of good faith and fair dealing; Breach of that covenant is breach of the contract Waldron 5

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CA: must be in violation of either constitutional or statutory provisions, public good. b) Application i) Foley v. Interactive Data: fired for tattling case: no WT because there was no public interest/statutory violation in his being fired. Prof disagrees. 3) Tortious breach of the Covenant of good faith and fair dealings a) Rule i) Covenant of good faith and fair dealing is implied in K and breach of covenant is breach of K and can be tort; even though specific phrase wasnt breached, sometimes you need CoA. Only applies to Insurance Cos in CA. b) Application i) Egan v. Mutual of Omaha Insurance: refuse to pay disability case: liable. 4) Intentional misrepresentation/fraud a) Test: i) Material misrepresentation, made with knowledge of the falsity of the statement or with reckless disregard for the truth, with intention to induce reliance, and the victim justifiably relies on the misrepresentation, causing damage; an act to conceal can be IM. Cts split on BoP b) Application i) Nader v. Allegheny Airlines: the overbooked flight case: D had duty to disclose overbooking practices, was liable. c) SubRule: failure to disclose can be IM if 1. There is a fiduciary relationship, the failure to disclose is likely to mislead, and the knowledge is held by D and unlikely that P can learn of it otherwise. Fuzzy sitch NEGLIGENCE 0) General: Five elements of a prima facia case: i) Duty (which prof puts with proximate cause) ii) Breach of duty (also breach of standard of care/ failure to act as a reasonable person) iii) Cause in fact iv) Proximate cause v) Damages b) Rule i) usually decided by jury asking if they acted as a reasonably careful person would in those circumstances. c) Application i) Windup case: D acted as a reasonable person, followed customs. Risk must be foreseeable and reasonable. ii) US Fidelity: fell in the ship hull case: Economic analysis: Hand Formula: if burden of precautions is less than losses from accident times the probability of accident, then there was no negligence. Prof says the less conscious the action the less helpful the hand formula. BP < L * P = no liability DUTY 1) Duty a) No Duty to act i) Rule Waldron 6

The fact that an actor realizes or should realize that action on his part is necessary for anothers aid or protection does not of itself impose upon him a duty to take such action. no liability for nonfeasance. But then there are tons of exceptions to that rule, making most cases come out for liability. ii) Application Restatement of Torts 2d #314 2) Limitations on Duty a) Duty to recue: i) Rule duty to act if the actor or an instrument under the control of the actor caused the peril. ii) Application L.S. Ayres & Co. v. Hicks: car accident? b) Preexisting relationship i) Rule duty if preexisting relationship between actor and victim. c) Voluntary rescue i) Rule liability can be based on abandonment of that rescue (if that places the victim in a worse position) or if the rescuer performs it in a negligent manner. This rule has been changed to no liability in many states by statute. ii) Application Miller v. Arnal Corp frozen mountain rescue case: no duty where the P didnt rely on the D, they undertook rescue voluntarily, and didnt put P in a worse position. d) Duty of parents i) Rule A parent can be held liable for negligently supervising a child if a victim is intentionally injured by the child and the victims harm was reasonably foeseeable. ii) Application Under Cal. Civ. C. 1714.1 a parent or guardian can be held vicariously liable for the intentional torts of a child, but damages are limited to $25,000 for medical expenses. Wells v. Hickman: Parent has a duty to exercise control over minor child when the parent knows or should know that injury to another is possible. They didnt know, had no indicators (BS) so there was no liability. e) Duty of Psychs i) Rule The relationship between a client and a psychiatrist is such that if the client communicates a serious threat of physical violence against a reasonably identifiable victim, a duty to warn the victim and a law enforcement agency of the threat arises. ii) Application

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Tarasoff v. Regents: shrink was liable to 3rd party because of special relationship to them via their patient. Police werent liable as there was no special relationship. Cal Civ. Code: limited shrinks liability to when patient has talked of physical violence against reasonably identifiable victim iii) Problems: lack of confidence in therapists, therapists are screwed either way, but things are fine after thirty years f) Purveyors of booze i) Rule can be held liable for injuries caused by intoxicated in some places, in CA there is no liability unless they are intoxicated minor. g) Duty of Police i) Rule courts are split, often it will depend on governmental liability statute Davidson v. City of Westminster: laundry room stabbing: there was no liability because P didnt rely on them, there were no express assurances by police, and no direct contact. Johnson found liability because the D increased risk to P, whereas in Davidson the police didnt make P worse off. Thompson found no liability where police didnt warn parents of dangerous threat of juvenile offender and kid was murdered: said that there was no duty because police cant warn and then be liable for harm if it occurs. BREACH OF STANDARD OF CARE: usually you have a standard of care of a reasonable person acting in that situation. Exceptions: 1) Sudden emergency: a) Rule i) elements: There was a sudden emergency where someone was in actual or apparent danger of immediate injury That D did not cause the emergency; That D acted as a reasonably careful person would have acted in similar circumstances, even if it appears later that a different course of action would have been safer. b) Application i) Cordas v. Peerless: cab-ditch case: acted as reasonable person in the emergency 2) Mental illness a) Rule i) insane are civilly liable for a wrong, but is not liable in exemplary damages unless at the time of the act they knew the act was wrongful. o CA belongs to majority rule above, while others allow mental illness as defense if there was a sudden onset of it. b) Application i) Breunig v. American Fam Ins: crazy lady and batman: minority rule. 3) Minors Waldron 8

a) Rule i) child is held to SoC of a reasonable person of like age, intelligence, and experience under like circumstances, unless activity is inherently dangerous then adult standard. b) Application i) Neumann v Shlansky: the kid golfer case: applied SoC of adult. 4) Physicians a) Rule i) A physician must exercise that degree of skill, knowledge and care ordinarily possessed and exercised by other members of the profession o A specialist will be held to the standard of that specialty. o Some states (not California) hold a physician only to the level of care in the same or a similar locality o Custom doesnt necessarily mean no negligence b) Application i) Melville v. Southward: infected foot case: expert has to be substantially familiar with that specialty. Ortho wasnt good enough here 5) Informed consent a) Rule i) If a doc doesnt fully inform P of possible complications, etc, can be liable for not informing. o Consent will be implied in an emergency. o In some states (including CA) it is no defense that the doctor complied with custom. o Courts are divided on causation issue. Is it necessary to prove that a reasonable person would have foregone the procedure if fully informed of the risks? ii) No Consent: If a doctor performs a procedure without the consent of the patient, the doctor can be held liable for a battery. b) Application i) Cobbs v. Grant: surgery w/o disclodure of complications that led to more complications: A doctor can be held liable for negligence if he or she withheld known and significant risks of a procedure. c) Determining SoC for docs: i) Rule Doc Rule: do what reasonable doc would do, so docs decide what is reasonable Patient Rule: used in CA: if doc knows or should have known of significant risk, doc has to inform patient, so it revolves around the rights of patient to be informed of all material facts 6) Rules of Law a) Rule i) In certain rare repeating fact situations, trial courts will rule as a matter of law whether a partys action breaches the standard of care and will not give the issue to the jury in that case or in subsequent similar cases. b) Application i) Akins v. Glen Falls Schools: a matter of law that owner of ball park only needs to provide screening behind home plate. Waldron 9

7) Negligence Per Se: a) Rule i) statutory purpose doctrine: harm was the type harm the statute was meant to prevent injured party was in the class of persons meant to be protected. breach of a statute must be a cause-in-fact of the injury. ii) CA: because presumption state, unless narrow exceptions apply, breach of statute = negligence o The dual purpose doctrine recognizes that a statute may have more than one narrow purpose. b) Application i) Gorris v. Scott: the sheep overboard case: statute to protect disease ii) Wanesa Mutual Insurance: the cigarette log case: minor dropped cigarette that lit logs on fire. Co held dude who gave cigs to minor liable for breach of that statute. c) Other takes on this issue: A presumption is an assumption of fact that the law requires to be made from another fact. A presumption is not evidence. (CA). breach of statute raises a presumption of negligence, similar to NPS. Contrast with an inference: a deduction of fact that may logically and reasonably be drawn from another. Breach of statute is mere evidence of negligence. ii) the barroom brawl case: in CA, owners of bars will not be held liable for the actions of the intoxicated person or injuries that result, unless in very obvious circumstances d) Notes on proximate cause: i) proximate cause: Foreseeability: In the absence of statutory breach, when there has been a breach of a standard of care, to hold for liability the harm that occurred, also must have been within the scope of the risks which made us call the act negligent. (rat poison case). ii) Most cts hold that complying with a statute is not proof of due care. e) Example: If you are driving without a license, are you negligent per se? i) Statutory Purpose: Yes, because you are breaking a statute ii) From cause in fact: No, the lack of license didnt cause accident CA says it isnt: doesnt matter why license was taken away, or if they just forgot to renew it etc: have to prove that there was causation. CAUSE IN FACT/CAUSATION 3) But for Test a) Rule i) P must prove by a preponderance of the evidence that but-for the Ds negligent conduct, the injury would not have occurred. o can also be established by showing that the action of the D greatly multiplied the chance of the injury and naturally led to it. o Causation is not negated merely because it is possible the injury could have occurred without the negligence. b) Application Waldron 10

i) East Texas Theaters v. Rutledge: leave theater and get a bottle to the head. Didnt meet but for test. 4) Substantial Factor Test a) Rule i) actor can be deemed the cause-in-fact of an injury if his or her or its negligence was a substantial factor in bringing about the harm. o Some states say substantial factor test includes but-for test, except in cases of redundant causation where the Ds action alone would have caused the harm. A court adopting such a rule must then decide whether to instruct the jury on the but for test. California does not b) Application i) Anderson c. Minneapolis: railroad fire case: under but for test there would be no liability here, while under SF test there is liability. ii) Northington v. Marin: the snitch case: where security guard and inmates spread rumors that led to beating. BF test leaves no one liable. SF test: all Ds whose conduct is one of two or more redundant causes of a Ps injury are liable. Joint and several liability. 5) Compensation: a) Rule i) Lost opportunity: when docs negligence lowers a patients chance of recovery, compensate the P by the percent the negligence lowered the chance for recovery. Is this different in CA? Herskovits v. Group Health Coop: the wrong diagnosis case: doc lowered chance of recovery by 35ish% so should be compensated by this much Alternative Rules o Require under a but-for test that P prove by a preponderance of the evidence that it was more likely than not that the negligence caused the harm. o Allow all such cases to go to the jury under a substantial factor instruction. ii) Alternative liability: when one of two negligent Ds caused a harm and it hasnt been shown that it was more likely than not that either one caused it, then each will be held liable unless they can prove their innocence. (i) Prof he thinks that if there is a 50/50 chance then its ok to hold both Ds liable, but from 33% on, P should have burden of proof. Summers v. Tice: the shot in the face case: one of two Ds shot P in the face, both held liable. iii) Market Share Liability: If P joins in an action a substantial share of the manufacturers of a product and the product was negligently manufactured, each D will be held liable for the proportion of the judgment represented by its share of the market (unless it demonstrates that it could not have made the product which caused P's injuries). Sindell v. Abbott Labs: the DES drug case. iv) Medical Surveillance: Can get damages for medical surveillance because the need is reasonably necessary but cant get damages for enhanced risk unless P can show that harm is reasonably probable. Waldron 11

Ayers v. Township of Jackson: contaminated well water case: they couldnt prove that their chances of cancer were up to above 50%, so only got surveillance.

DUTY / PROXIMATE CAUSE / LEGAL CAUSE: 1) Generally: a) Two overlapping elements, although most cts talk about them separately, this isnt necessary. b) Comparable analytically to negligence per se 2) Tests: a) Scope of Risk/foreseeability i) For there to be proximate cause, not only must Ds action have been negligent, capable of leading to reasonably foreseeable harm, the harm that actually occurred must be within the scope of the risks which made us deem the act to be negligent. b) Forseeability Test: i) (1) a reasonably foreseeable result or type of harm, and ii) (2) no superseding intervening force. iii) The extent and the precise manner in which the harm occurs need not be foreseeable. iv) Application Wagon Mound: for there to be liability the actual injury had to be reasonably foreseeable. c) DUTY getting muddled into PC i) Practical Politics test: There are fact situations where even though the Ds negligence in fact caused the harm, for policy considerations, the law declines to trace a series of events beyond a certain point. Application o Palsgraf: Cordozos majority talks of duty and says that D didnt have a duty to P because P was far enough removed for that duty to be present. Andrews dissent frames it in proximate cause, says that the cause was close in time and space. Could reverse these methods and arrive at the same conclusion. d) Old Rules: i) Direct Test: proximate cause is satisfied whenever the D's negligence caused the injury without any intervening force. Application o Polemis: allows liability so long as the negligence of the D was a direct cause of the injury. ii) Restatement Test? If Ds action was a substantial factor in harm, there can be liability unless looking backwards from actors negligent conduct, it appears highly extraordinary that it should have brought about the harm. 3) Recurring proximate cause issues a) Intervening cause: called dependent when liability is permitted and superseding when it is not. i) Cal judicial instruction: to find that 3rd party does count as intervening forceand so cuts off Ds liability. Waldron 12

that 3rd partys conduct occurred after Ds conduct that a reasonable person would consider 3rd party conduct as highly unusual or extraordinary that D had no reason to expect that 3rd party would act in negligent manner. ii) Unexpected severe injury: injury is rarely too remote for there to be proximate cause merely because the injury was more severe than would have been expected. (the egg-shell P) Application o Steinhauser v. Hertz Corp.: the car accident to schizophrenia case: issue: whether D is liable when injuries would have occurred sooner or later anyway. Rule: D is liable even for highly unlikely injury. iii) Recovery may be limited to difference between two times of injury. iv) different in kind injury of unusual kind, depending upon how removed the cause is from the type injury, the court may or may not rule it a proximate cause. v) Injury to a rescuer is proximately caused by the tortfeasor who made the rescue necessary, at least if not too much time has elapsed before the rescue. vi) Intervening criminal or even intentional torts can be deemed to cut the chain of causation, but usually not if the negligence of the D was failure to guard against a known or knowable risk of the activity. Application o Thomas v. US Soccer Fedn: soccer fight: When an intentional or criminal act of a third person intervenes between Ds negligence and Ps injury, liability will turn on whether the intervening act is a normal or foreseeable consequence of the situation created by Ds negligence. vii) A tortfeasor can be held liable for subsequent medical malpractice performed on an injured victim. viii) Application o Bigabee: phone booth case: addresses negligence to put booth there and proximate cause of driver as a superceding force. When harm is foreseeable there is a matter of fact for jury to decide. 4) Res Ipsa Loquitor a) General : used when we know that someone caused harm but we dont know how a rule of evidenceburden shifter. Just deals with breach of SoC . If there is evidence of due care then all districts send it to jury, and if there is evidence of no negligence then RIL is destroyed all together. b) Rule i) P must demonstrate: o that the accident is of such a nature that it would not usually occur in the absence of negligence o that the instrumentality causing the injury was within the D's exclusive control. o that the P was not at fault. ii) Application Waldron 13

Krebs v. Corrigan: the smashed my glass sculptures case: burden of proof moved to D because elements of RIL were satisfied. If D succeeds in disproving any of the elements, then burden goes back to P. Ybarra v. Spangard: surgery F-ed my shoulder case: there are multiple Ds here, so prof has an issue with the exclusive control over instrumentality. But RIL is now used almost exclusively in hospital cases where P was unconscious, even though there are multiple potential Ds. c) Proof of Negligence: real v. direct v. circumstantial evidence: RIL is just a rule of who has the burden of providing evidence: if P can prove three elements of RIL, burden shifts to D. ii) Inference: deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the action. (may be accepted or rejected by jury) iii) Presumption: assumption of fact that the law requires to be made from another fact or group of facts found or otherwise established in the action. A presumption is not evidence. (must be drawn by jury, unless rebutted). CA its presumption which effects the burden of producing evidence SEPARATE CAUSES OF ACTION / DAMAGES 1) NIED: a) History: common law, there was no recovery if P didnt have physical impact. b) Rule i) Amaya: impact rule was abandoned, and there could be recovery so long as the bystander was within the zone of danger. ii) Dillon: The factors or guidelines (not criteria) o Whether P was located near the scene of the accident; o Whether the shock resulted from a direct emotional impact upon the P from the sensory and contemporaneous observance of the accident; o Whether P and the victim were closely related: Application o Dillon v. Legg : CA SC held that there could be liability to a third party witness not within the zone of danger. Thing: guidelines of Dillon changed into requirements, and said that the P had to be AT the scene of the accident not just close by, so that could be a bit more liberal of a rule. No need for physical manifestation. son killed and mom saw right after. No liability c) Note i) Sometimes bystander rule is waived, usually where there was a preexisting relationship (mom who recovers for NIED from shrink who treated her son) 1) Fear of Cancer: a. Rule i. Have to prove an increase in over 50% and that chances of getting cancer are over 50%. b. Application

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2)

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i. Potter v. Firestone: P must prove 1. as a result of Ds negligent breach of duty to P, P is exposed to toxic substance which threatens cancer, and 2. That Ps fear stems from knowledge, backed by science, that it is more likely than not that the P will develop the cancer due to the toxic exposure. a. Note i. CA allows emotional distress damages only upon proof that cancer is probable. Medical monitoring is paid if the risk of disease is significant. ii. Some courts allow emotional distress damages in proportion to the increased risk of developing cancer. Wrongful Death: a. Damages: i. 1. Compensation only for pecuniary losses, ii. 2. Also include loss of companionship as a pecuniary loss (California rule), iii. 3. Allow compensation for the pain and suffering of the survivors depending on the jurisdiction(not CA) b. Two overlapping causes of action may be allowed: i. Wrongful death: Rule a. parties receiving can bring their own cause of action for what they lose because of death Application a. Gary v. Schwarz: kid killed on bike: the ct did give some compensation after looking at personality, family relation, grades, etc. ii. Survival Rule a. tort of deceased, whether cause of death or not, passes the estate and can be pursued by heirs. i. No pain and suffering Note: No double recovery: Loss of consortium and society a. Rule i. loss of love, companionship, society, sexual relations, and household services. Brought by those that suffer losses due to injury to spouse b. Application i. Borer v. American Air: kids didnt get LofC, said it was covered under dads claim. Policy: multiplier Wrongful Birth a. Rule i. If a doc or anyone else, injures a fetus in utero, the child after birth can bring suit ii. Damages vary on if the costs are set off by joys of kid and if the kid is healthy or not. Wrongful life Waldron 15

a. General: child born with serious health problems has CoA against a D for negligently having caused the birth. b. Note i. Most states allow no such cause of action, CA does for extraordinary expenses. ii. Counterpart to wrongful conception which is brought by parents. c. Application i. Turpin v. Sortini: deaf girl case: did recover for cost of medical expenses 6) Land occupier liability: a. Common law rules depended on status of person as trespasser, licensee (social guest), or invitee (business purposes) b. Rule c. Roland: faucet case: Everyone is responsible, not only for the result of willful acts, but also for an injury occasioned to another by want of ordinary care or skill in the management of his property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself. Classification of party no longer matters, due care of owner does. i. This rule is departed from only when D proves the absence of: foreseeability of the harm (most important and usually will be a q for the juryalthough this was changed in subsequent decisions) the degree of certainty of the harm the closeness of the connection of D's conduct and P's harm (could be similar to proximate cause) the moral blame attached to D's conduct the policy of preventing future harms. the burden of a duty rule on the D the availability of insurance (this isnt the D specifically, but say that if homeowners insurance is usually held in the circumstances, this will influence things Normally this applied to type of harm generally, now they are applied to specific case d. Application i. Ann M: shopping center rape: the court partially abolishes the totality of the circumstances test and foreseeability test in favor of an inquiry as to whether there had been a prior similar incident. No prior rapes = no liability ii. Weiner v. Southcoast childcare: playground crash: intentional criminal act was enough to make D not liableWhy? 7) Negligent misrepresentation: a. General: P must show justified reliance on the statement. But courts are reluctant to allow negligence actions for purely economic harm b. Three tests:

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i. Privity: Ultramares: denies recovery to third parties for auditor negligence in the absence of a third party relationship to the auditor that is akin to privity. ii. Intended: Restatement of Torts 2d 552: Liability to third persons of a limited group of persons for whose benefit and guidance he intends to supply the information or knows that the recipient intends to supply it . (adopted in California in Bily v. Arthur Young p.398) iii. Foreseeability test: Liability to third parties who were foreseeable users of the statement: prof doesnt see why foreseeability isnt ok: this is how other types of negligence are decided 8) Negligent interference with economic advantage a. Rule: i. Duty of care is: The extent to which the transaction was intended to effect P, Foreseeability of harm to P, Degree of certainty that P suffered injury, Closeness of connection between the Ds conduct and Ps injury, Moral blame attached to conduct, Policy of preventing future harm b. Application i. JAire v. Gregory: contractor took forever case: duty was found but that is unlikely nowbad decision. AFFIRMATIVE DEFENSES 1) Comparative Negligence: a) Prior rule: contributory: any negligence of P=no liability i) Exception: last clear change doctrine b) Rule i) Li v. Yellowcab: In all actions for negligence resulting in injury to person or property, the contributory negligence of the person injured in person or property shall not bar recovery, but the damages awarded shall be diminished in proportion to the amount of negligence attributable to the person recovering. The court adopted pure comparative negligence. No matter how great Ps fault, P will recover under the above rule. Ps fault will be compared to all tortfeasors, whether Ds or not. Last clear chance is abolished. Contrast w/ partial comparative: D must be over 50% liable to be able to recover. ii) AoR? Ct didnt explain this wellsaid that there are two types: 1. P unreasonably undertakes risk then this fades into comparative negligence. 2. If the P is held to agree to relieve the D of standard of reasonable conduct then there would be no libility. This doesnt make sense. iii) Application:

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What if there is intentional misconduct by D? In CA this precludes comparative N. If D is reckless or if P is willful, wanton, or reckless CA cts split. iv) Calculating liability under Li: P can recover their damages minus their percentage of fault from any one D. 2) Assumption of Risk a) Traditional rule: i) AoR was complete bar to recovery, P must have knowingly and voluntarily, expressly or impliedly, agreed to assume the risk, to hold the D harmless. Murphy v. steeplechase amusement: the flopper case: P assumed risk Barran v. Kappa Alpha frat: hazing fratboy casedumbass: P assumed risk Woodall v. Wayne productions: the fly-in-a-kite case: he hadnt acted negligently, and had only assumed risk of wind, etc, not of driver sucking. b) Rule i) Knight v. Jewett: tag football case: In the sports context, liability lies only for conduct that is intentional or so reckless as to be outside the range of the ordinary activity involved in the sport. The defense of assumption of the risk is abolished to the extent that it is merely a variant of the former doctrine of contributory negligence. o Primary assumption: D lacks a duty of care to the P relieves the D of any liability. (express falls here) o Secondary assumption of risk: D owed a duty to the P, becomes absorbed into comparative negligence. Whether P had knowledge of the danger is no longer relevant. (implied and negligence falls here) ii) Exceptions: Avila v. Citrus Community: in this case the ct held that a pitcher intentionally hitting a batter with a pitch wasnt liable because it is common in the sport and so the payer assumed the risk. Prof doesnt like this casesays its a wrong outcome. Shin v. Ahn: golf case: A P can prevail despite a finding that primary assumption of risk applies by proving that Ds conduct was intentional or so reckless to be totally outside the range of the ordinary activity involved in the sport.

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c) Professional AoR i) Rule Priebe v. Nelson: kennel case: Certain professionals may not recover for injuries caused by negligence they are compensated to address. o The firefighters rule can be viewed as a separate rule or as a subhead of assumption of risk. ii) Policy Because they are compensated for this risk, Public pays for them and public causes the riskWould lead to too much litigationshitty argument, Dont want to discourage ppl from calling fire dept, Better benefitsnot true these days. d) Exculpatory clauses: express assumption of risk. Factors: i) Does it involve a business suitable for public regulation? ii) The party seeking exculpation is performing a service important to the public; iii) The party seeking exculpation holds himself out generally to the public; iv) The exculpating party has bargaining strength; v) Is it a standard adhesionary exculpating contract? vi) Has the injured party placed himself under control of the other? vii) An exculpatory clause cannot exculpate liability for gross negligence. 3) Immunities: a defense based on the status of D or relationship of P and D.: Governmental still exisits. There used to be charitable, intrafamily, guest statutes a) Application i) Metcalf v. San Joaquin County: faulty road signage: P has burden to demonstrate the Ds conduct was unreasonable or that it had notice. If P carries this burden , then public entity has affirmative defense of that the cost of fixing risk outweighs the harm it poses. Joint and Several Liability 1) Comparative indemnity: a) Rule: i) American Motorcycle: D may seek indemnity from other tortfeasors, whether or not they had been sued by P o Joint and Several Liability is retained. o each party is responsible not for pro rata portion of payment but only their percentage of fault o A P's recovery from non-settling tortfeasors is diminished only by the amount that the P has actually recovered in a good faith settlement, rather than by an amount measured by the settling tortfeasor's proportionate responsibility for the injury. ii) Tech-bilt v. Woodward-Clyde: settling D may be liable to a non-settling tortfeasor if the non-settling tortfeasor can prove that the amount of the settlement is not within "the reasonable range of the settling tortfeasor's proportional share of comparative liability for the P's injuries. Good fairth b) Calculating indemnity: i) If P collects all damages from D1, and there are two other Ds, then D1 can seek indemnity from the other Ds for their percentage of fault. 2) Set-off issue Waldron 19

a) If there is A is 75% at fault and suffers a $100,000 injury. B is 25% at fault and suffers a $100,000 injury, set-off would subtract damages and just give B 50k and A nothing. b) CA doesnt allow them: K issue. 3) Prop 51: a) Rule: i) joint liability is retained for economic losses, but not for non-economic losses. So if there are two Ds and one isnt solvent, the P can collect all economic damages from the solvent D, as well as their damages for their percentage of pain and suffering, but P cant collect anything from the other D. ii) So how does this change how P and Ds act? b) Rule: i) Crisci v. Security: screwed on insurance claim: good faith and fair dealing in insurance K: RELEVANCE? STRICT LIABILITY 1) General a) PF case doesnt include proving that D acted in blameworthy way. b) Areas normally covered: wild animals, blasting, poison. c) Policy: Loss Spreading, Risk reduction: reduce number and severity of accidents, Loss

d) Rylands v. Fletcher: SL when one brings something unnatural onto land that can do harm if it escapes. 2) Ultrahazardous activities: required for SL in Rest 1, not anymore. a) Necessarily involves a risk of serious harm to the person, land or chattels of others which cannot be eliminated by the exercise of the utmost care, and (b) is not a matter of common usage. 3) Abnormally dangerous activities: a) Rule: i) Rest 519: One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land, or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm The strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous. ii) Rest 520: abnormally dangerous activities: In determining whether an activity is abnormally dangerous, the following factors are to be considered:

allocation: loss to be internalized by enterprise that engendered it, greater dist than available under N, Administrative efficiency, Fairness

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existence of a high degree of risk of some harm to the person, land or chattels of others; likelihood that the harm that results from it will be great; inability to eliminate the risk by the exercise of reasonable care; extent to which the activity is not a matter of common usage; inappropriateness of the activity to the place where it is carried on; and extent to which its value to the community is outweighed by its dangerous attributes. iii) Note: You dont need all of the elements to prove SL, with the exception of common usage: you cant have SL for something that is clearly of common usuage. b) Application: i) Siegler v. Kuhlman: burned in gas case: SL was found to meet test ii) Indiana Harbor: acrylonitrile on RR doesnt pass test for SL: chem. Isnt an issue, but transportation, and that cant really be changed muchso no reason for SL. iii) Kelley v. RG industries: No SL for guns, says they have nothing to do with land, manufacture of guns isnt inherently dangerous. iv) Foster v. Preston: mother mink killing babies isnt one reason why we call blasting dangerous. 1) Products liability: 2) General: i) Rule: Trainer: manu is SL in tort when an article is o placed on market o knowing it is t be ued w/o further inspection for defects, in o does have defect o that causes injury to person. Today PL can be based on N, Breach of Warranty (express and implied), SL in tort, and misrepresentation. Can plead all CoAs at once. ii) Rest 3d attempts to unify them all: One engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect. iii) Note: No SPL: for food, beverages, and drugs: Pillars v. RJ Reynolds, chew toe case. PRODUCTS LIABILITY 1) General a) Types i) Negligence: failure to use reasonable care in designing, manufacturing or labeling product Privity is not required. ii) Warranty: Breach of an express warranty (2-313); expressly warrants that goods have certain qualities but doesnt Breach of the implied warranty of merchantability (2-314), or; Waldron 21

 Breach of the warranty of fitness for a particular purpose (2-315) iii)Misrepresentation material misrepresentation of fact D justifiably relies D suffers physical harm iv)SL 2) Rest 3: consolidate SL, N, Warranty a) Rule: i) One engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect. ii) A productis defective in design when foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design. b) Application i) Potter: where the Ps were exposed to vibrations from power tools, D asked to use Rest3 test, but this would put burden of proving a better design was available on Pct didnt like that. Even if there is no alternative design, can have bad product. ii)

STRICT LIABILITY 1) Specifics: a) Cigarettes: i) Rule: in CA there is SL for cig manus but not retailers ii) Application: Roysdon v. RJ Tobacco: doesnt pass defective or unreasonably dangerous tests. b) Note: In CA there is no SL for pharmaceuticals nor liability for failure to warn for pharmaceuticals. c) Product warning: Ramirez: no SL for failure to warn in spanish. 2) Note: touch on prox cause and cause-in-fact unless it is perfectly clear. 3) Rationales: Loss distribution, Prevention of accidents; encourage the manufacturer to internalize all costs, Remove the difficulties from Ps having to prove negligence thereby encouraging the settlement of suits, Avoid circuitry of suits, Res ipsa loquitur is not an acceptable alternative 4) Types of Defect: a) Manufacturing Defect An error in construction. Product is broken. b) Design Defect An error in design or blueprint. The entire line is defective. c) Warning Defect Lacks adequate warning or instructions. Proper warning might have prevented the P using the product or might have caused the accident victim to use it in a safer fashion i) Sometimes a subheading under design defect ii) Two types: Waldron 22

Left off a warning, to where the P wouldnt have used the prod. At all like in a drug. Had you given proper instructions as to use, and warned about danger of not following them, may cut down on number of defects. 5) Application i) Greenman: tool hits in the head: A manufacturer is strictly liable in tort when an article he places on the market knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being. ii) Lee: exploding coke: To recover under SL, P doesnt need to show what exactly caused accident as long as circumstantial evidence leads to a reasonable inference that it was more probable than not that product was defective when it left Ds control. 6) How to define defect? a) Barker: use this rule if the setting is in CA. i) Consumer expectation Test: A product is defective in design if the P proves that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner (ordinary/consumer test) OR ii) Risk Utility Test: The P proves that the products design proximately caused injury and the D fails to prove, in light of the relevant factors, that on balance the benefits of the challenged design outweigh the risk of danger inherent in such design. (risk/utility test or excessive preventable harm test). b) Soule (p.546) limited Barker by holding that its ordinary consumer test cannot be applied if the allegedly defected product is one that is too technologically complex for an ordinary consumer to have an expectation. c) Restatement 2d 402A: this is used by most state: proposes strict liability for anyone who sells a product in a defective condition unreasonably dangerous to the user or consumer of his property. d) Courts differ as to whether a product can be deemed defective if the danger is commonly known to the public. Comment to 402A requires strict products liability only where the product is, at the time it leaves the sellers hands, in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him. This is not the law in California. 7) Defenses a) Unavoidably unsafe prods i) Rule 1. product is inherently unsafe and known to be unsafe by the ordinary consumer who consumes it with the oridinary knowledge known to the community AND 2. product is a common consumer prod intended for personal consumption, sugar, butter, etc. ii) Application Gray: boomdown machine: no liability because ordinary consumer knows of the danger of the machine. Two wats to get to SL: consumer expectation test OR the prod is unreasonably dangerous, despite what the reasonable consumer would think. a) SotA defense: Waldron 23

i) Rule In a design defect case, is there a defense that at the time of the manufacture of the product, the defect could not have been known to the manufacturer? Unclear in CA. In a failure to warn case, can a manufacturer be held liable for failing to warn of dangers not knowable at the time of the manufacture? Yes SotA defense in CA. o Most states to have SOTA defense. ii) Application Basheda: asbestos case: minority view, held no SL for failure to warn. iii) Policy against: incentivize manus to make safer prods, hard to determine what manus could have known, manus could intentionally not improve prods, how to define what is SotA? For: incentivize new prods, b) Federal Preemption: Premised on the Supremacy Clause of the United States Constitution Express preemption A federal statute or regulation expressly forbids state regulations or common law actions on the subject matter. Field preemption A federal statute or regulation is sufficiently comprehensive that there is an inference that any state statute or common law action is prohibited. Conflict preemption A state law or common law action is prohibited if it actually conflicts with a federal statute or regulation ii) Application: Riegal v. Medtronic: heart catheter: fed regs preempted the state law in this case, so there was no SL against manu nor N against the doc. McKenny v. Purepac: pharm case: Fed req that a generic have the same labeling as a reference listed drug doesnt necessarily result in fed preemption of a stat tort action against generic manu for failure to warn. P can sue for failure to warn if risk was knowable or known. c) Economic loss: i) Rule: not covered under SL but under UCC. ii) Application: Two Rivers: bull sperm case: the loss was intangible economic loss, so it isnt covered by SL. SL only covers physical harm to the prod itself, the person, or other property. o Policy: hard to saysomething says SL is just for physical harm d) Comparative Negligence in SL: i) Rule: In a strict liability case, Ps recovery will be reduced by comparing the proportionate causal contribution of the defective product with the causal contribution of the Ps conduct. If P is deemed to have assumed the risk, Ps recovery can be diminished or even barred. ii) Application: Daly v. Gen Motors: AoR was included in case where drunk guy didnt wear seatbelt or lock door, so when faulty door latch broke and led to his death his negligence was deducted from recovery. Waldron 24

e) Component Parts i) Rule: A component parts manufacturer can be held strictly liable in torts if it was delivered to the prime manufacturer in a defective condition. o I understood the test to be: Component manu is liable for defective part if it was defective when it left manu, or when the component manu was involved in design of integrated prod: and so did the rest of the class, but prof goes with rule above ii) Application: Gonzalez: airbag blind case: manu could be liable under SL if the prod was defective when it left them. iii) Policy: o why would we want to have liability stay with the prime manu rather than going down to components manu? (i) There is better loss distribution that way, (ii) The auto co may want to keep the liabilityso that the smaller components manu stays in business. DAMAGES 1) Nominal damages a) Pay $1 to support injunctive relief (or maybe to allow punitive damages 2) Compensatory damages a) Best terminology is economic (also special v general)/noneconomic i) Economic = med bills, wages, extra expenses ii) Noneconomic pain and suffering b) Rule i) In CA you can present evidence of loss of enjoyment of life but the damages for that are combined with pain and suffering. ii) Loss of enjoyment requires at least some degree of cognitive awareness. c) Application i) McDougal v. Garber: found that loss of enjoyment shouldnt be separate and that P wasnt eligible because she had no awareness of loss of enjoyment. d) Calculating pain and suffering i) Per Diem: ask a jury how much they would be willing to be compensated to endure the pain that P feels per daythen multiply by life span. CA does allow this, a lot of states dont. 3) Collateral sources a) Rule i) If the collateral source rule applies, payments to the P from a collateral source (one that is totally independent from the D) are not disclosed to the jury b) Application i) Helfend v. Southern CA transit: where the Ds bus hitPs car and they wanted his insurance as evidence. Wasnt allowed based on the collateral source rule. ii) In CA this rule doesnt apply in cases of workers comp, medmal statues, and gov code in limited sitches (so cal source info is allowed into evidence). c) Policy: incentivize ppl to get insurance Waldron 25

i) Pros: helps cover attorneys fees that usually arent considered in damages award. ii) Con: may allow for a double recovery (unless subrogation) d) Rule i) Subrogation: where the D pays back the insurer instead of double recovery Calculating subrogation: o HYPO: P (subrogor) received $5,000 from his health insurer (subrogee) for injuries sustained when D injured him. After trial, the accident is determined to be 20% the fault of the P and 80% the fault of the D. Total damages were $20,000. o If the collateral source rule applied and If the P and the health insurer had a subrogation agreement, how much money does P owe to the insurer? o So P gets 16k from D o And P would have to pay insurance co either 5k or 80% of 5k depending on the subrogation clause. If K is unclear then you resolve against drafter. o What about the 4k damages? Insurance co will cover that. Subrogation isnt easy process, says prof. 4) Punitive damages Granted for malice (ill will, hatred,, reckless disregard b) Rule i) Factors: the degree of reprehensibility of the Ds conduct; the disparity between the actual or potential harm suffered by the P and the punitive damages award; and The difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases. c) Rule i) Can be unconstitutional if excessive: ration of >9 times compensatory damages is probably too much. Lower compensatory damages will allow for a greaterration between the two damages. d) Application i) State Farm v. Campbell: where the D here brought a suit against state farm after they lost lawsuit after representing him and refused to pay up. He got 1 million in compens. and 145 million in punis, which was reduced. e) Policy i) Pros: Deterrent, enforces public policy, justice?, allows for recovery when there hasnt been actual quantifiable damage (like trespass), allow ppl to recover despite flooded crim system, ii) Con: Duplicative of criminal law, may depletse money for other Ds, too susceptible to jurys emotional bias, shouldnt act as gov. entity VICARIOUS LIABILITY 1) General Waldron 26

a) Vicarious liability is the doctrine that holds one party liable because of that partys relationship to a tortfeasor. b) The party held vicariously liable need not have done anything negligently, such as hiring or supervising. 2) Respondeat superior a) Rule For an employer to be liable for the tort of an employee, the act must have within the scope of employment. Employer may be liable for the intentional tort of an employee if the occurrence is foreseeable and not too unusual. ii) Application Rodgers v. Kemper: construction worker case where they were within the scope of employement hanging around after work (conferring a benefit because they were available to work) and the employer approved of that custom. b) Rule i) An employer is not usually held liable for the negligence of an employee coming or going to work. Exceptions o errand: o travel: getting paid for travel ii) Application Caldwell v. ARB inc: no liability for accident that happened on employees way home. iii) Indemnification: Labor C. 2802: An employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or his or her obedience to the directions of the employer, even though unlawful, unless the employee, at the time of the directions, believed them to be unlawful. (2001) Labor C. 2865: An employee who is guilty of a culpable degree of negligence is liable to his employer for the damages thereby caused to the employer. The employer is liable to the employee if the service is not gratuitous, for the value of the services only as are properly rendered. (1937)(Emphasis added.) How do we reconcile these? Time? Culpability? Collecting damages: P can sue either or both, and then whoever pays up can seek indemnity from the other side. c) Policy/rationale i) Otherwise P might not be able to recover since many Ds would be judgement proof, but employers usually have insurance ii) Because employee wouldnt have acted if not for the employment itself iii) Incentivizes the employer to hire better employees. 3) Independent contractors a) General Rule i) A contractee is ordinarily not liable for the torts of an independent contractor Waldron 27

ii) Excpetion: A contractee can be vicariously liable for the torts of an independent contractor if: The contractee retains substantial control. The contractee hires a contractor he or she knows to be incompetent. The work is inherently dangerous. The contractee owes a nondelegable duty by law or contract concerning the quality of the work. b) Application i) Mavrikidis v. Petullo: hot asphalt case: not liable 4) Vicarious liability for acts of kids a) Rule i) Although a parent can be held liable for his or her negligence in supervising his or her child, the common law rule generally does not hold a parent vicariously liable absent such negligence. Exceptions to this rule include: a parent entrusting a child with a dangerous instrument A child acting as an agent for the parent A parent consenting to or ratifying the wrongful act. ii) Today, there also are many statutory exceptions to this rule, particularly when the child is driving a motor vehicle. b) Application i) Wells v Hickman: kid murder case again: The defense is saying that the statute limiting liability was meant to overrule common law but the ct said that it wasnt overruling it. But that in this case there was no negligence. MEDMAL 1) MICRA: Medical injury compensation reform act a) principal provisions of MICRA have been held constitutional in CA. 2) Provisions a) Parties can demand periodic payments for future damages against health care providers, which can be modified on the death of P. (insurance cos pay less this way) b) Ds can introduce collateral source info, but jury cant be instructed on how to use it. c) No source of collateral benefits introduced into evidence can seek subrogation from P. d) Nonecon damages limited to $250k: can deter ppl from bringing suit, lawyers cant take cases that pay so little. e) Have to give 90 days notice to health care provider before bringing suit f) Curtails contingent fees that attorneys can charge: again makes it harder for ppl to get lawyers. WORKERS COMP 1) General a) Two scenarios: worker wants to get WC so they have coverage or they want to avoid WC so they can sue employer. Waldron 28

b) The statute shall be liberally construed to extend benefits. c) Liability is not based on negligence. d) Recoveries are invariably less than would have been available in a successful tort action for a similar injury. e) The employer, except in exceptional circumstances, receives an immunity from a suit in tort. The immunity does not apply to third party tortfeasors. f) If employer hasnt bought WC insurance, then employee sues and can get either WC or tort. 2) Rule a) The injury must be arising out of and in the course of employment. 3) Application a) Bletter v Hartcourt: bust a move case: was within the scope of his employment so P got workers comp for dance move injury. b) Ralphs Grocery v. Workers comp appeals board: P got heart attack after learning he was rehired but part time and w/o benefits: Holds that P doesnt get workers comp because: he wasnt employed at the time, but the convo was about employment; he wasnt at work; the act wasnt within the course of employment c) Hypo: carpal tunnel: can probs recover. d) Johnson v. Stratlaw: teen driving home late: Parents tried to get out of workers comp so they could sue and have a higher recovery. Tort suit is barred by WC because the special risk exception applies to the normal coming and going rule. e) Fermino v. Fedco: false imprisonment by employer: SC CA, 1994, pg 669: the employer held employee for suspected shoplifting. Issue: whether the FI false under WC immunity. NO: worker can sue and isnt bound by WC in case of intentional injury. If there is a criminal suit, then WC doesnt bar it. AUTO NO FAULT SYSTEM

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1) Arguments in favor of adopting a comprehensive automobile no fault plan. The present system: a) Is too costly b) Negligence system provides that many injured in automobile accidents will receive nothing. c) Compensation is slow. d) Leads to a great volume of litigation. e) Incentive to fraud: abuse of insurance claims f) Low cost will compensate the poor more, while current system gets a higher % of compensation for rich than poor. 2) Arguments against adopting a comprehensive no fault plan: a) Those causing injuries are not held liable for the harm they cause, leading to misallocation of resources. b) Loses the deterrent effect of our present system, leading to less safety. c) Eliminates the corrective justice aspect of the tort system. DEFAMATION 1) General a) Common law that has been changed by statute b) Balance of free speech v. personal rights of reputation c) cant defame the dead. d) Defamation is from perspective of reasonable as well as right-thinking person 2) Definitions a) Defamation a false published statement holding another up to scorn or contempt and harming the persons reputation b) Libel defamation in written form c) Slander defamation in spoken form i) (modern means of communication such as radio present difficulties of categorization) d) Inducement and Innuendo showing that a statement, not defamatory on its face, has a defamatory meaning e) Colloquium Showing the statement was of and concerning the P f) Slander per se Slander which i) Impugns a persons business reputation ii) Asserts a loathsome disease iii) Accuses the person of a serious crime iv) Accuses the person of serious sexual misconduct g) Libel on its face A statement libelous without the need to prove extrinsic facts. i) (Libel per quod A statement which is only libelous with proof of extrinsic evidence). 3) Common law action a) General b) Statement must be published: Libel is what you see, slander is what you hear (confusing because of modern tech) (CA) Waldron 30

c) Radio can be libel if it is read from a written thing 4) Slander a) P had to prove actual damages to recover, unless it was type of slander per se. b) Relational damages: action taken by third party that hears defamation, must be economic i) Once some relational damages shown, then all damages are compensable (emotional distress included). c) Rule i) To state a cause of action, must be published to third person, must be untrue, must prove either relational damages or that the statement falls into one of the slander per se categories. 5) Libel a) Rule i) Maj rule: no need to prove relational damages of defamatory writing to to have CoA ii) Min rule: need relational damages (CA). b) Rule i) Maj rule: if statement is libelous on its face (libelous without extrinsic fact), then actionable without proof of relational damages. However, if the statement is libelous only by pleading extrinsic facts, then it isnt actionable unless P shows special damages or that it fits in one of the four categories. 6) Note a) All of the categories and rules deal only with one question: bring cause of action despite being unable to prove relational damages. Important because if can prove any small amount of relational damages can recover all of personal damages as well. i) if spoken statement feel into slander per se, then P didnt have to prove relational damages to recover punis or emotional damages ii) CA: if written statement was libel on its face, P didnt have to prove there were relational damages to recover for emotional or punis. iii) Not the case in CA: if a written statement is slander per se through proof of extrinsic facts, P did not have to prove there were(relational) damages to get punis or emotional damages. 7) Application a) General i) Kaplan v. Newsweek: statements made about the Prof werent defamatory because statements as a matter of law werent defamatory and they were opinions, not facts. Prof says this is borderline ii) Retractions: if P asks for retraction and doesnt get it then punis can be awarded. If P doesnt ask for a retraction then no punis. Also considers prominence of the retraction. iii) Bidnram v. Mitchell: nude marathon case, writer published about phsyc in novel. Rule: whether a reasonable person reading the book would understand that the fictional character therein pictured was, in actual fact, the P acting as described. iv) Weidman v. Ketcham: Postcard case: colloquim hasnt been shown, or that third party req was never met. Waldron 31

 Note: how careless the D was makes a difference in outcome. 8) Constitutional privileges: Public figures, etc. a) Rules i) All purpose: public figure in all contexts: they have to prove NYtimes malice. ii) Application New York Times v. Sullivan: If a media defames a public official or a public figure, the constitution requires that the P prove by clear and convincing evidence that the statement was false and made knowing it was false or made with reckless disregard for whether the statement was false. (NYtimes malice) o to be limited pub figure, P has to have voluntarily entered pub arena o gov agencies cant sue for defamation o to get punis, you need to show common law malice, in addition to the NYTM that is needed to get presumptive damages. iii) Limited: when they are just public figure in a particular context. To have defamation CoA, they have to 1. thrust themselves in to public spotlight and 2. the statement has to be concerning that limited purpose for which they are a public figure. iv) Private person in matter of pub concern: P must show that statement was false and made through fault. Without showing of NYtimes malice there are no punis or preseumed damages, and the above rules dont apply if the P is not involved in matter of public concern. Gertz v. Welch: defamation of lawyer as a commie: he wasnt public figure b/c he didnt thrust himself into spotlight, so he doesnt have to prove NYtimes malice. States decide standard of liability for publisher of defamation of private individual, but states cant award punis or presumed damages unless there is NYtimes malice. v) Private person in matter not of pub concern: unclear what P must show in terms of proof of foult. Dun & Bradstreet v. Greenmoss Builders: financial report that was inaccurate, punis and presumed damages were allowed w/o proving NYtimes malice, because no need to worry about chilling free speech. Philadelphia News: P has burden of proving that the defamation is false vi) Ca: Miller: these protections do apply to non-media speakers as well. 9) Absolute immunities to defamation: a) Rule i) Article I, Section 6, Clause 1, of the U.S. Constitution states in part, "for any Speech or Debate in either House, [senators and representatives] shall not be questioned in any other place. b) Application i) Hutchinson v. Proxmire: golden fleece case: D senator is still liable for defamation because statements were made in a press release which isnt protected by constitution. c) Rule i) 47 U.S.C. 230 -- Communications Decency Act of 1996 immunizes internet providers and users who republish third partys defamation d) CA rules Waldron 32

i) Statements made in proper discharge of official duty (leg, judicial, etc) are absolutely privileged ii) Qualified privilege to statements made to persons who have interest in the matter, if done w/o malice. (ex: giving a reference) iii) Privilege for fair and true report of most pub proceedings in a pub journal. iv) Application Brown v Kelly: D newspaper argues that their statements are privileged because of the publics common interest in the news. Common interest defense doesnt flythat would make anything privileged. INVASION OF PRIVACY 1) General a) Conflict of free speech v right to privacy b) Fourth amendment: search and seizure 2) Intrusion upon seclusion a) Rule i) One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns is subject to liability to the other for invacion ot his privacy, if the intrusion would be highly offensive to a reasonable person. No need to show any publication Cal Torts: the action for intrusion has two elements: o Intrusion into a private place o Ina manner highly offensive to a reasonable person b) Application i) Peirson v. Dodd: P senators employees snuck into office and took info, gave it to reporters who knew how it was obtained, and then publish story on it. D brings action for intrusion. Holds that these Ds arent liable because they didnt actually intrude. Prof thinks that this is a close case, that if buyers of stolen chattels are liable that these guys should be. ii) Dietemann v Time: D reporters entered into the home of P, a quackery doc, with his permission, and recorded and took pictures without him knowing. D claims immunity by 1st amendment, P claims invasion of privacy: intrusion. Finds for P. 3) Appropriation and right of publicity a) Rule i) Traditional rule: one who appropriates to his own use of benefit the name or likeness of another is subject to liability to the other for invasion of privacy ii) CA: give statutory causes of action for abridging the right of publicity b) Application i) Neff v Time: guy with fly down drunk at gave feature in Sports Illustrated. Prof says Ct should have found for D on implied consent, not by saying that the photo wasnt for commercial purposes so no appropriation of name or likeness, and no pub exposure of private facts because he was in public. 4) Public disclosure of private/embarrassing facts a) Rule Waldron 33

i) One who gives publicity to a matter concerning the private life of another is subject to liability to the other for unreasonable invasion of privacy if the matter publicized is of a kind which 1. Would be highly offensive to a reasonable person, and 2. Is not of legitimate concern to the public. Exception: if D knew that the person had a particular subjective sensitivity to something, then the objective standard of offensiveness doesnt necessarily apply. b) Application i) Sipple v. Chronicle publishing: P stopped shooter from hitting the pres and sues the news co for outing him. Ct holds it was publicized, was a legit public concern, and wasnt private matter. What about highly offensive? 5) False light in the public eye a) Rule i) Pub disclosure ii) Placing the P in a false light iii) Which would be highly offensive to a person of reasonable sensibilities. b) Application i) Cantrell v. Forest City Pub: SCUS 1974, 765: P and kids lost the dad in a bridge collapse, reporters covered the story, interviewed the kids w/o mom being there, and included huge misstatements in the report. ii) Hustler v. Falwell: P was reverend/pub figure who had been featured in Hustlers parodic ad of first time with momIssue is whether Hustler was protected by First Amendment. H argued that there was a different standard than NYTM because this was IIED not defamation. Ct rejected different standard, took away damages awarded to F originally. Unclear if Hustler applies to private persons. c) Note i) Differences in defamation and false light D requires that victims reputation be seriously damaged by the false assertions. Publicity is reqd for false light, but defamation only requires publication Both private and pub figures must prove NYTM to recover in FL, but in Defamation only pub figures and officials have to prove NYTM to recover at least some damages. ii) Note the overlap between this and defamation: NYT malice must be shown by public officials, pub figures or private persons in matters of pub concern. 6) False light, defamation, and IIED overlap. Note: insurance for neg, not intentional torts.

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