ASSAULT BATTERY To cause apprehension of a harmful or offensive A harmful or offensive contact with a person, contact, as distinguished from the

contact itself. resulting from an act intended to cause the plaintiff Elements: to suffer such a contact. 1) Intent Elements: 2) Apprehension of a harmful or offensive (1) Intent: touching (apprehension of a battery) (2) A harmful or offensive bodily contact a. As judged by a REASONABLE a. As judged by a REASONABLE person member of society b. Plaintiff must be AWARE of threat b. No harm or actual damage is 3) Imminent required a. NOT conditional statements (cant c. Extends to anything which is form a REASONABLE apprehension ATTACHED to body and practically UNLESS condition is something you identified with it. have every right to do (Your d. Enough for defendant to set a money or your life) force in motion (Garratt v. Daily) DAMAGES: DAMAGES: INTENT Allows Compensation for: Allows compensation for: The person acts with the purpose of producing the Resulting mental (1) Resulting mental consequence OR disturbances as well as physical disturbances The person acts knowing that the consequence is substantially or certain to result illness that may result from them (2) Resulting TRANSFERRED INTENT Punitive damages consequences The intention follows the bullet o Unless assault defendant did not Can transfer between torts (intended a committed as the result of intend or could not battery but ended in assault); Talmage innocent mistake. v. Smith stick throwing have foreseen (3) Punitive damages a. Unless defendant acted in good faith under mistake of fact Picard v. Barry Pontiac-Buick, Inc. (assault & batter) Rhode Island, 1995 Plaintiff took car to have breaks inspected, disagreement with employee of dealership. Employee approached with finger pointed and then put finger on camera. Assault = plaintiff was frightened by defendants actions (apprehension of batter). Battery = touching camera unwanted, same as touching person. Wishnatsky v. Huey (Battery) North Dakota, 1998 Two attorneys were meeting in an office with the door closed. Wishnatsky attempted to enter without knocking, attorney pushed door closed forcing Wishnatsky into hall. Court finds NO battery, because reasonable person would expect response from not knocking. OBrien v. Cunard Massachusetts, 1891 (consent) Doctor on ship entering Boston Harbor was giving vaccinations to immigrants to avoid quarantine. Woman already had shot but actions were not OBJECTIVE clear to doctor, so gave shot. DEFENSES SELF-DEFENSE Limited privilege Authorizes the use of force to prevent an impending battery or to stop one which is in progress Only allows for REASONABLE force o Cannot go eye-for-eye Turns on victims REASONABLE BELIEF that force is necessary, even if, in fact, it is not Deadly Force in Self-Defense Force that is intended or likely to cause death or serious bodily harm. Only allowed when individual REASONABLY believes that they are threatened with deadly force CONSENT Measured on an objective standard o Would a reasonable third person interpret the individuals manifestation as consent? o Court not concerned with individuals secret heart of hearts

DUTY Generally, NO duty to act; Individuals owe a duty in all their ACTIONS SPECIAL RELATIONSHIPS give rise to Duty: (D has custody over P under circumstances in which P was deprived of normal opportunities to protect himself; Harper v. Herman) Innkeeper/Guest Contractual Relationships Joint Ventures (Farwell v. Keaton; joint venture hitting on girls) Common Carriers Parent/Child Exceptions to Duty Question: Inaction (Harper v. Herman; social host on boat) Creating the Risk Starting to Help (Farwell v. Keaton) Non-Negligent/Negligent Injury DUTY TO THIRD PARTY D owes a duty of care to all persons who are foreseeably endangered by his conduct, with respect to all risks which make the conduct unreasonably dangerous (IDENTIFIABLE VICTIM RULE) Tarasoff When controlling the conduct of another, only liable if a special relationship exists Social Hosts owe no duty Reynolds v. Hicks (alcohol to minor at wedding) RESPONSIBILITY FOR ACTIONS OF THIRD PARTY Negligent Entrustment: Allowing a dangerous object be used by someone who it is unreasonable to do so (loaning car, gun, etc. to those unqualified) VINCE V. WILSON (neg. entrustment of car) DUTY OF LANDOWNERS & OCCUPIERS Traditional View: (Carter v. Kinney; bible study guests were licensees) TRESPASSERS All entrants to land are trespassers until the possessor of the land gives them permission to enter: Generally, no duty owed No traps/wanton or willful misconduct = knowingly taking the risk LICENSEE Enter with permission but possessor doesnt have an interest in the visit (tangible/business) Expected to take land as is. Put them in same position as landowner Duty to make safe known dangers No traps/wanton or willful misconduct INVITEE Possessor has an interest in the visit (material benefit) Duty of reasonable care

NEGLIGENCE 1) DUTY of reasonable care (no duty question?) 2) BREACH of the duty (Negligence/RPS) 3) CAUSATION (Actual/Proximate) 4) Resulting DAMAGES

Protect against both known and unknown dangers Modern View (California/Rowland) Landowners must act reasonably and protect against known dangers Traditional classifications abandoned (Heins v. Webster County; challenged classifications in Nebraska) Elements to Consider: 1) The foreseeability or possibility of harm 2) The purpose for which the entrant entered the premises 3) The time, manner, & circumstances under which the entrant entered the premises 4) The use to which the premises are put or are expected to be put 5) The reasonableness of the inspection, repair, or warning 6) The opportunity & ease of repair or correction or giving of the warning, and 7) The burden on the land occupier and/or community in terms of inconvenience or cost in providing adequate protection Concerning Children: R2d 341: A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if: a) The place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, AND b) The condition is one of which the possessor knows or has reason to know & which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, AND c) The children b/c of their youth do not discover the condition or realize the risk involved in intermeddling w/it or in coming w/in the area made dangerous by it, AND d) The utility to the possessor of maintaining the condition & the burden of eliminating the danger are slight as compared w/the risk to children involved, and e) The possessor fails to exercise reasonable care to eliminate the danger or otherwise protect the children. Landlords & Tenants: A landlord is liable if the injury is attributable to (Sargent v. Ross): 1) A hidden danger in the premises of which the landlord but NOT the tenant is AWARE

2) Premises leased for PUBLIC use 3) Premises retained under the landlords control, such as common stairways, OR 4) Premises NEGLIGENTLY REPAIRED by landlord Approaches to Resolve Foreseeability Issue in Determining When a Duty is Owed by Business: 1) Specific Harm Rule: A duty ONLY owed rd when against acts of 3 party when owner AWARE of SPECIFIC, IMMINENT harm (Generally, too restrictive) 2) Prior Similar Incidents Test: Past history puts landowner on notice/foreseeability (Posecai v. Wal-Mart Stores no duty) 3) Totality of Circumstances: takes additional factors into account (nature, condition, location). Tends to put a great duty on business owner to foresee risk 4) Balancing Test: Balances foreseeability of harm against burden of imposing duty CASES HARPER V. HERMAN (No duty/Inaction) P was guest on Ds boat. D took boat to shallow water so people could swim & w/o warning P jumped into water and hurt spinal cord. No special relationship existed between parties. Special relationship could only be found if D had custody over P under circumstances in which P was deprived of normal opportunities to protect himself. FARWELL V. KEATON (DUTY/Joint venture; Starting to act) P & D were hitting on girls who complained to friends. P was beat up and left unconscious under a car & P-friend did not help. Two were companions on a social venture RANDI W. V. MUROC JOINT UNIFIED SCHOOL DISTRICT (duty to third person) School District was aware of improper sexual conduct by former employee but placed unreserved positive references for him at other jobs. Employee sexually abused student at new school. Making misrepresentations presented a substantial, foreseeable risk of physical injury to a third person. TARASOFF V. REGENTS OF THE U. OF CAL (duty to 3 party) D was treating patient who confided intentions of killing Ps daughter. D requested patient be detained but never informed Ps daughter. Patient killed daughter. If D has a special relationship w/someone who poses a foreseeable threat, the D has a duty to control that persons behavior or warn others

REYNOLDS V. HICKS (no duty to 3 party): No duty rd on social hosts to care for 3 -persons. No foreseeable/identifiable victim. rd POSECAI V. WAL-MART STORES, INC. (no duty to 3 party): P was robbed at gunpoint in Ds parking lot. Expert witness testified business was in heavy crime area but only 3 similar incidents happened in parking lot over decades, NO DUTY. HYPOS Couple has friend over and he got drunk. They walked him out of the house and to his car where he drove away & got in an accident & killed someone. Argument for duty: Analogous to starting/stopping inaction situation. Foreseeability of drunk driving accident is very clear. Analogous to settled authority that giving keys to drunk driver is a lawsuit (classic entrustment) Argument for no duty: No social host responsibility (arguments to distinguish this satiation only one person v. large group/party) 2) Management company gives wide access to set of master keys (to construction workers, utility people, etc.)and someone w/access rapes a tenant of the building Against Mgnt company: Had a relationship w/both parties, tenants & tortfeasor For Mgnt Company; lease may specify duties of management company & may outline they are not responsible for protection (real purpose of relationship), policy argument long term results of holding them responsible for actions of others will force rents up.

rd

Is there a duty?

Land Owners

No Duty: INACTION

Negligent Entrustment

Traditional View

Rowland (California)

Trespassor = NOT DUTY

Licensee = KNOWN dangers

Test = Reasonable/Foreseeable

Invitees = DUTY

Affirmative Duties (Inaction Exception)

Non-Negligent Injury

Preventing Others

Statutory Created

Started to Act

Innkeeper/Guests Created the Risk Contractual Relationships

"Special Relationships"

Joint Ventures

Common Carriers

Parent/Child

BREACH OF STANDARD OF CARE Actor must act as a reasonable man under like circumstances; considers: The foreseeable risks of injury that conduct will impose on the community The extent of the risks of the conduct The likelihood of a risk actually causing harm If alternatives would achieve the same purpose with less risk The costs of various courses of action in determining what is reasonable Reasonable Person Exceptions: Physical disabilities o When a man has a distinct defect of such a nature that all can recognize it as making certain precautions impossible, he will not be held answerable for not taking them Children o Age, intelligence, experience Except when engaged in adult activities Emergency Situations NOT mentally ill Hand Principle: Negligent if: Burden of precaution < probability of risk * liability (B<PL) ROLE OF STATUTES: Negligence Per Se A statutory violation is negligence in itself (majority) irrebuttable MARTIN V. HERZOG (statutory violation = driving w/o lights on car) R2d Recognized Exceptions: The violation was reasonable b/c of the actors incapacity He neither knows nor should know of the occasion for compliance He is unable after reasonable diligence or care to comply He is confronted by an emergency not due to his own misconduct Compliance would involve greater risk of harm to the actor or to others (Tedla v. Ellman; walking on wrong side of road) Prima Facie Approach: Did not follow the statute, but was reasonable; allows for excuses; acts as SOME evidence of negligence (TEDLA V. ELLMAN)

Standard of Care

Reasonable Person

Judge Made Law

Statutory Violation

Custom (some Evidene) Controlling in Medical Malpractice

Apply? Yes/No
Effect?

PROOF OF BREACH/NEGLIGENCE Constructive Notice: Not actual notice; such circumstances as the law deems the equivalent of actual notice since they are such as, under the law, put a party upon inquiry (a reasonable person should have known about the risk) Negri v. Stop & Shop (slip and fall case) Gordon v. American Museum of Natural History (NOT c.n. b/c defect must be visible & apparent for a sufficient length of time) Unsafe Method of Operation: P need not show actual or constructive notice when the business practice of the store (self-service salad bar) provides a CONTINUOUS and FORESEEABLE risk of harm to customers (i.e. self-serve salad bar) HYPO: Blondies Pizza Wax paper w/slice, tile floor, nowhere to sit. Reasonable expectation someone will slip. Res Ipsa Loquitur: A rule of evidence that permits, but does not compel, an inference of negligence under certain circumstances. 1) Accident is the kind were someone is normally negligent 2) Exclusive control of the D (usually physical) 3) No contribution by P Useful in Medical Malpractice Cases Byrne v. Boadle: Barrel of flour fell from window & hit P. If any facts inconsistent w/negligence for D to prove (establishes R.I.L.) McDougal v. Perry: P driving behind tractor & spare tire flies off and crashes through windshield. Type of accident that doesnt normally occur BUT FOR failure

to exercise reasonable care by the person who had control of object Ybarra v. Spangard: P had surgery for appendicitis & awoke w/pain in arm & developed paralysis. It would be impossible to determine who negligently injured P, but accident was one that rarely happens w/o negligence. Expert Witnesses Custom (evidence but not controlling of what a reasonable person would do)

Proof of Negligence
Expert Required? (Medical Malpractice) Res Ipsa Loquitur Unsafe Method of Operation
Actual or Constructive Notice

MEDICAL MALPRACTICE (generally, R.I.L. cases)

Courts require that the specialized knowledge & skill of the D must be taken into account. Allows profession to set legal standard of reasonable conduct As part of Prima Facie case, P MUST affirmatively prove the relevant recognized standard of medical care exercised by other physicians & that the D departed from that standard. EXPERT WITNESS generally required Custom CONTROLS (this is what a doctor in this situation would do) Sheeley v. Memorial Hospital: Argument that expert witness must be from same/similar location outdated & too narrow. Medicine is national practice w/national accrediting standards, courts prefer NATIONAL standard of care Sides v. St. Anthonys Medical Center: Prima Facie case can be made for MM on basis of R.I.L if expert witness can testify injury doesnt occur w/o negligence. INFORMED CONSENT DOCTRINE Reasonable Physician Standard (some states, i.e. NY) Frame test to ask if info provided is that which a reasonable medical professional would provide in similar circumstances Reasonable Person Standard (other states, i.e. NJ) Frame question to ask if physician provided the information that a reasonable patient would want. Other States Handle informed consent on an INVASIVE basis only & then approach as a BATTERY R2d Section 829D: Supports the view that a competent adult may REFUSE life-saving treatment

CAUSATION CAUSE IN FACT (actual cause): Seeks to tie Ds

conduct to Ps harm in an almost physical or scientific way. BUT-FOR TEST Ds action must ONLY be an ESSENTIAL ingredient of the harm. Does NOT need to be the ONLY one, or most substantial, but if it led to harm cause in fact exists. GENERALLY, when there are several possible causes of injury, one or more of which D is not responsible, P cannot recover w/o proving that the injury sustained was wholly or in part by a cause for which D WAS responsible (Stubbs v. City of Rochester went other way) Stubbs v. City of Rochester: When multiple causes exist, only one of which D may be liable, and a party injured establishes facts from which it can be said w/reasonable certainty that the direct cause of the injury was the one for which the D was liable the party has complied w/the spirit of the rule (exception/disease case)

PROXIMATE CAUSE: Defines where to draw the

line to limit liability so that Ds are not liable for all of their actions in history. R3d: An actors liability is limited to those physical harms that result from the risks that made the actors conduct tortious Unless Cause in Fact is found, there is NO need to consider issue of proximate cause Not a defense but often a Ds argument FORESEEABILITY TEST: If the D should have anticipated a particular risk at the time he acted, & he negligently failed to avert the risk, he would be liable if that risk caused the Ps harm. Was amount of damages foreseeable? WEAKEST argument

Was type & manner of accident foreseeable? WEAK argument Was victim foreseeable? Allows factfinder to ask what unreasonable risks D should have anticipated at the time she acted, & compare those risks to the injury that occurred: 1) If Ps injury beyond the type of harm to be expected from the Ds conduct, the P will virtually always go uncompensated 2) Where a particular type of injury to the P is foreseeable, the D is liable for the injury sustained even though it is more serious than might have been anticipated 3) Cases distinguish unforeseeable consequences of negligent act from consequences that are foreseeable but take place in an unusual manner 4) Injury does NOT have to be likely or probably in order to be foreseeable UNEXPECTED VICTIM Palsgraf v. Long Island Railroad Co.: P was standing on Ds train platform when another passenger far away was pushed on a train and dropped a package w/fireworks that exploded and caused a scale to fall on Ps head. Risk D took was not rd foreseeable/knowable & D did not act on P but a 3 party. UNEXPECTED HARM Eggshell Plaintiff Rule: Requires the D takes the P as he finds him, even if that means the D must compensate the P for harm an ordinary person would not have suffered. Deems the injury, and not the dormant condition, the proximate cause of the Ps harm Rejects the limit of foreseeability that courts ordinarily require in the determination of proximate cause Benn v. Thomas: P had history of coronary disease & was susceptible to a heart attack. D hit Ps car and P had heart attack, evidence was split on cause of death. Jury should be instructed on Eggshell P Rule Secondary Harm: Courts have held that if a P is injured & as a result of that injury is injured again in a separate accident (i.e. on way to hospital) original D is liable for additional/incremental damages INTERVENING CAUSES Actions after Ds negligent act that may or may not SUPERSEDE liability If subsequent action is foreseeable, NOT superseding

Negligent actions DO NOT supersede Law treats RESCUERS as FORESEEABLE Intervening Cause MAY be considered Superseding (still argue foreseeability b/c facts may be different): 1) Medical aggravation or other negligent rescuer (generally NOT superseding) 2) Incapacitation leading to further injury (intervening but NOT superseding) 3) Wanton or willful misconduct (generally superseding) 4) Ps suicide (traditionally not superseding) 5) Forces of nature (generally, intervening but NOT superseding; especially true if preconditions are already existing, i.e. windy in Chicago) 6) Acts of war or terrorism 7) Deliberate, intentional criminal acts (superseding unless foreseeable) 8) Deliberate, intentional criminal acts (superseding unless foreseeable) Doe v. Manheimer: P was grabbed by assailant and raped behind bushes in high crime area. P sued D for failing to remove overgrown bushes. No liability b/c a negligent D whose conduct creates or increases the risk of a particular harm & is a substantial factor in causing that harm, is not relieved from liability by intervention of another person EXCEPT where the rd harm is intentionally caused by the 3 person AND is NOT w/in the SCOPE of the risk created by the Ds conduct. MULTIPLE SUFFICIENT CAUSES: Different from but-for test, two harms could have caused the harm independently & causation can be satisfied if the Ds negligence was a substantial factor in producing the harm (two independent fires converging to burn Ps house to ground) LOSS OF CHANCE DOCTRINE: Views a persons prospects of surviving a serious medical condition as something of value, even if the possibility of recovery was less than even prior to the physicians tortious conduct. Matsuyama v. Birnbaum: Where a physicians negligence reduces or eliminates the patients prospects for achieving a more favorable medical outcome, the physician has harmed the patient & is liable for damages.

JOINT & SEVERAL LIABILITY

Rule of Collections Two negligent actors combine to cause a single harm Either D can be held responsible for entire cost of damages Shifts burden of proof to Ds b/c otherwise they would remain silent & P will never recover o Some states have abolished joint & several liability & instead assign fault to each D and make that the limit of each Ds liability Ds can bring contribution claims against other D if stuck w/entire cost of damage to collect their portion INDEMNITY One D collecting against another for overpayment o Not through allocation or fault but b/c of contractual agreement or vicarious liability Summers v. Tice: Two Ds were hunting and each negligently shot P in eye. Policy dictates that both Ds should be liable b/c if P must point to one or the other they may both escape liability & P will be left remediless. Hymowitz v. Eli Lilly & Co.: P alleges they were injured by DES drug but cannot point to manufacturer. Court adopted MARKET SHARE approach and allowed P to sue all manufacturers & imposed liability proportional to each Ds share of the DES market.

Causation

Cause in Fact

Proximate Cause W/in the Scope of Danger?

Foreseeable?

Intervening?

Amount?

Superseding?

Type/Manner?

No

Yes

Victim?

Acts of God

Reckless/Wanto n Misconduct

P Suicide

Intentional Criminal Act

Negligent Rescuer Injry by Incapacitation

DAMAGES
The fundamental goal of damage awards in the unintentional torts area is to return the P as closely as possible to his or her condition before the accident. Remittitur: Court conditionally grants a new trial unless the P consents to a reduction of the damage award to an amount the court believes is not excessive. Additur: Employed when the court believes the damages awarded are inadequate as a matter of law. New trial is ordered unless the D agrees to an adjustment upward in the amount of damages awarded. NEVER invoked in federal court NONPHYSICAL HARM Damages for economic & emotional harm are routinely recoverable when they occur as a result of physical harm for which the P establishes liability. Zone of Danger Metaphor: To recover for emotional distress, P must be in immediate risk of physical harm (Gotshall; majority approach) Courts have generally required someone be involved in the accident to recover Other decisions have allowed recovery for family members who witness accident (policy decision) Foreseeability Approach: Was it foreseeable that victim would experience harm even if not in the Zone of Danger (Dillon v. Legg) 1) Whether P was located near the scene of the accident as contrasted w/one who was a distance away from it 2) Whether the shock resulted from a direct emotional impact upon P from the sensory & contemporaneous observance of the accident, as contrasted w/learning of the accident from other after its occurrence 3) Whether P & the victim were closely related, as contrasted w/an absence of any relationship or the presence of only a distant relationship Some courts have ruled that as long as REASONABLE BELIEF that death resulted, recovery AVAILABLE Impact Approach: Once impact is established, can recover for other emotional harm not associated

w/impact (hit with oil = impact, but watched kid get run over by train) Thing v. Lechusa Approach (California): Recovery should be limited to relatives residing in the same household, or parents, siblings, children & grandparents of the victim. Just viewing the consequences of the accident are INSUFFICIENT. Requisite distress MUST be beyond that which would be anticipated in a disinterested witness & which is not abnormal response to the circumstances Stricter than Dillon Doesnt negate ZOD, only ENHANCES About close familial relationships Some courts have ruled that the Dillion/Thing/ZOD standards are for bystander liability not necessarily people involved in the accident (women drives over child & sues school bus for not having sign for emotional harm of running over child). Metro-North Commuter R.R. Company v. Buckley (no recovery): P was exposed to asbestos at work and developed fear of getting cancer. Courts generally bar Ps who only FEAR developing a disease unless they can show it is more likely than not they will develop the disease. Policy Limits Recovery: 1) Special difficulty for judges/juries in separating valid, important claims from those that are invalid or trivial 2) A threat of unlimited & unpredictable liability 3) The potential for a flood of comparatively unimportant or trivial claims Portee v. Jaffee (recovery): Mother watched son get crushed in elevator shaft. Existence of familial relationship an essential element, and so is actually witnessing accident b/c only a witness at the scene of the accident causing death will suffer a traumatic sense of loss.

DEFENSES CONTRIBUTORY NEGLIGENCE (abandoned by

many states): Elements mirror those of the basic negligence claim, except in the sense that any duty owed is to ones self rather than others Ps negligence must be proximate cause of Ps harm

Trier uses adapted risk calculus to determine the reasonableness of Ps conduct Conduct must be an actual cause of Ps harm Traditionally an ALL-OR-NOTHING approach. If ANY contributory negligence found on part of P, NO RECOVERY only a handful of states adhere to traditional contributory negligence LIMITATIONS ON CONTRIBUTORY NEGLIGENCE Recklessness: Virtually all courts agree that c.n. is only a defense in cases of NEGLIGENCE. No defense when Ds actions are reckless or willful/wanton Last Clear Chance: Even though P was careless for Ps own safety, the D had, but failed to utilize, the last clear chance to avoid the injury to P. C.N. disregarded in these cases. Impact of Statute: in some situations where a statutory command is understood to be an effort to protect some group against its own inability to protect itself the statute may be interpreted as barring a defense of C.N. (children crossing a street after getting off a school bus cant be contributorily negligent) o Few statutes have been given this effect

procedure two different incidents. Pre-treatment conduct should not be considered in liability phase of medical negligence cases. Appropriate Considerations in Medical Negligence Cases When Considering Ps C.N.: Ps failure to reveal medical history, particularly when the evidence also shows that the P may have been advised of the importance of this information. A Ps furnishing of false information about his condition Failure to follow a physicians advice & instructions Delay or failure to seek further recommended medical attention ASSUMPTION OF RISK Express Assumption of Risk: Parties sometimes agree in advance that the D need not exercise due care for the safety of the P. Generally done in contract o Exculpatory Agreement o Hold Harmless Agreement Litigation generally raises two types of questions: 1) Will the court enforce even the most clearly drafted contract given the type of activity involved? 2) If so, is the contract in question sufficiently clear? Argue Against Contract: Discuss foreseeable risks that P thought they were agreeing to & how these did not ensue, but others did Argue unconscionable Hanks v. Powder Ridge Restaurant Corp.: P took kids snowtubing at Ds venue & signed Hold Harmless release. P injured foot & required surgery. Court ruled agreement was contrary to public policy b/c recreational activity was open to the public & P did not have the same bargaining power as D, it was basically take it or leave it Does Agreement Violate Public Policy (Tunkl v. Regents of U. of Cali): 1) The agreement concerns a business of a type generally thought suitable for public regulation 2) The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of

COMPARATIVE NEGLIGENCE: A negligent Ps

recovery depends on how serious Ps negligence was compared to the Ds (adopted by the states who abandoned all-or-nothing c.n.) 1) Pure Comparative Negligence: The P who is 90% to blame for an accident can recover 10% of the damages from the D who was found to be 10% at fault (D can in turn collect 90% if they were injured) 2) Modified Systems: a. A P who is at fault can recover as under the pure system but only so long as that negligence is not as great as the Ds b. P can recover as under the pure system but only as long as that negligence is no greater than the Ds Fritts v. McKinne (medical negligence/no c.n.); P was injured in car crash after drinking alcohol and required surgery. Doctor made mistake and P died & D tried to assert c.n. defense & P was injured by own negligence. Not allowed b/c car accident & medical

3)

4)

5)

6)

practical necessity for some members of the public The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming w/in certain established standards As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services In exercising a superior bargaining power the party confronts the public w/a standardized adhesion contract of exculpation, & makes no provision whereby a purchaser may pay additional reasonable fees & obtain protection against negligence As a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents

IMMUNITIES Spousal Suits: Traditionally common law prevent suits between spouses b/c husband & wife were a unity for legal purposes Almost all spousal immunity has been ELIMINATED Parent-Child Suits: Claims by children against parents for intentional harms are almost universally permitted today Government Entities: Used to enjoy immunity from suit b/c a sovereign is exempt from suit, not b/c of any formal conception or obsolete theory, but on logical & practical ground that there can be no legal right as against the authority that makes the law on which the right depends Preemption

STRICT LIABILITY
R2d: Imposes strict liability on one who carries on an abnormally dangerous activity for harm resulting from the activity, although he exercised the utmost care to prevent the harm. Abnormally Dangerous: 1) Existence of a high degree of risk of some harm to the person, land or chattels of others 2) Likelihood that the harm that results from it will be great 3) Inability to eliminate the risk by exercise of reasonable care 4) Extent to which the activity is not a matter of common usage 5) Inappropriateness of the activity to the place where it is carried on; and 6) Extent to which its value to the community is outweighed by its dangerous attributes Rylands v. Fletcher: If a person brings, or accumulates, on his land anything which, if it should escape, may cause damage to his neighbor, he does so at his peril. If it does escape, and cause damage, he is responsible, however careful he may have been, and whatever the precautions he may have taken to prevent the damage. Some States stick to this rule for these strict Liability situation (mostly East Coast)

IMPLIED ASSUMPTION OF RISK Primary Implied Assumption of Risk: Arises when the P impliedly assumes those risks inherent in a particular activity Secondary Implied Assumption of Risk: Arises when the P knowingly encounters a risk created by Ds negligence Not about unreasonable behavior, about behavior that evidences CONSENT o The act of going forward in the face of a known danger Murphy v. Steeplechase Amusement Co.: P went to amusement park & got on attraction that was a moving belt that threw people around and fell and broke kneecap. Park not liable b/c danger was obvious & P understood risk & undertook it anyways. MITIGATION OF DAMAGES Avoidable Consequences Doctrine Continuing to smoke after lung cancer surgery Use P not seeking medical attention 2 months later as avoidable consequence, but use P not seeing the stop sign & running it as Ps fault Dont worry about seatbelts/the anticipatory avoidable consequences doctrine

Non-natural storage of water (some states i.e. Texas want to subsidize non-natural storage of water & do not follow this rule) Escaping animals; today probably just looks to maintaining an animal that is wild or poses a serious risk Blasting cases Ultra hazardous activities (nuclear power plants, storing/hauling hazardous waste, pile driving) o High risk to public at large, often use of land, rare occurrence, inability to reduce risk even w/reasonable care Generally, works compensation claims Sullivan v. Dunham: Blasting case. P hit with debris from wood resulting from blast. D liable for impact of wood, but if P concussed from shaking of ground from blasting not liable (indirect injury)

Risk is O.K. as long as product contains a label warning user about its danger b. Foresight/reasonableness inquiry (try to analogize to lack of informed consent) 4) Warranty (not really products liability) comes from UCC a. If product doesnt live up to the promises made about the product, tort suit can be brought

a.

PRODUCTS LIABILITY
Manufacturers are strictly liable for defective products they distribute throughout society Doesnt obviate causation/proximate cause but no longer need to discuss fault (manufacturer is strictly at fault; dont have to show negligence but do have to show product was defective)

How Can a Product be Defective?: 1) Manufacturing Defect a. One item comes off the assembly line differently than the others (easy case; probably settled out of court) 2) Design Defect a. All products come off the assembly line wrong in some way i. Dont have to prove manufacturer is negligent for using design, but there is something wrong w/the design ii. BPL test to determine if design is defective 3) Inadequate Warning/Unreasonable Label