Torts Outline

Spring 2012

Intentional Torts
Intentional torts are torts where intent is present Spectrum of tort liability Unintentional acts intent to act (SL) intent to act unlawfully intent to act w/ certainty of knowledge intent to harm

Trespass Person o o Intent to act (if act is unlawful) Assault and Battery o Assault threat, intent Battery unlawful touching, intent not always necessary

In Vosberg v. Putney D kicks P. The wrongdoer is liable for all injuries resulting from the wrongful act whether or not they are foreseeable. The intent was intent to act. D kicked P with no intent to actually harm D but is still liable because of the intent. Eggshell skull rule => D takes P as he finds him => rights view D argues that P is the cheapest cost avoider and should pay. Countered by moral arguments that P shouldnt have to protect himself from the wrongs of others

In Garratt v. Dailey, the D had intent to act with certainty of consequences. He pulled the chair out from under P, knowing that she would fall. Here the D is liable because the harm was foreseeable and his intent was to act.

Land o Every unauthorized entry onto anothers land is trespass, in Dougherty v. Stepp the law inferred some damage even when there wasnt any and the trespasser thought the land was his. o o Intent to step is enough, there does not need to be intent for unlawful action

Injunctions prohibit behavior Damage can be real or interference with use. Gas meters dont move. (Gas meters case. Blondell v. Consolidate Gas Co., pg. 12) Injunction works better than self-help if you cant move the property like you can a chattel

Chattels o Damage/moveability If there is damage resulting from trespass to chattel lawsuit Without damage reasonable force to protect property (you can move it). Selfhelp is the only recourse when theres no damage o No damage, no trespass

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Requires intent to act => strict liability In Intel v. Hamidi D used computer system but did not impair its functioning or quality (no damages), therefore there is no trespass. Court ruled that computer servers are akin to phone lines and not real or immovable property as Intel claimed. Intel could have put a fence around its email system if it wanted to (like moving a chattel). Intel tries to make Blondell argument but they dismisses it. No adverse possession by D.

Adverse Possession - The use or enjoyment of real property with a claim of right when that use or enjoyment is continuous, exclusive, hostile, open, and notorious

Conversion ultimate trespass to chattel; completely destroys the object belonging to someone else (stealing, selling, etc.); innocent mistake is no defense (Poggi wine case) Bad faith: P gets gross profits Good faith: P gets net profits (Maye v. Tappan)

Defenses to intentional torts Consent (brief outline first) o o o Express Transferred/proxy Necessity/emergency => purely implied o Life threatening/health Patient unavailable Would have consented Imminent danger

Implied broader consent Doctor needs more latitude today; doesnt know family Kennedy cyst (Major abdominal surgery, higher cost) Mohr ear (No real cost to waking someone up) Scope of surgery Kennedy does not exceed extent of scope, Mohr does

Contract (broad) More coercive the contract, the less likely the court is to enforce it Express Implicit Vosburg playground (context) Consent of guardian Comes from express, from someone capable to give consent Necessity

Consent can be express or implicit (Vosburg, implied license of the playground), consent of guardian, necessity (life threatening, patient unavailable, would have consented, imminent danger)

In Mohr v. Williams (ear case) an operation was performed without a patients consent, no intent to harm was required to hold the doctor liable. Damages could be recovered. D operated with intent to act unlawfully, no consent. Intent to harm would only be required for criminal case. Circumstances did not justify performance without consent. Remittitur An order awarding a new trial, or a damages amount lower than that awarded by the jury,

Scope of consent When doctor fused two vertebrae when only one was consented to the scope of consent was exceeded (Washburn v. Clara, pg. 22)

Unanticipated circumstances In Kennedy v. Parrott large cysts were found during surgery. Unanticipated events offer more latitude, broader implied consent is inferred when nobody can be found to give consent. It is more efficient to allow doctor to do the job compared to forcing him to wake up the patient

Written consent forms Covered unanticipated events, gives consent for these unanticipated conditions to be addressed in surgery.

Consent to illegal activities Consent of participants does not remove liability from promoter of illegal prizefight. The state has a long history of regulating prizefighting and the statutes are for the protection of fighters. (Hudson v. Craft, pg. 27) Majority rule can sue winner sues loser for damages (deterrence) This case: Promoter as principal for the winner

Minority rule consent nullifies actions (Geysel) Volenti non fit injura no claim since you volunteered Ex turpi causa non oritur action no actions shall arise from an improper cause This case: Protected classes cant consent to act. No equal wrongdoing between P and promoter, promoter was worse than the fighter. Statute was in place to protect fighters in these very situations.

Informed consent Duty to disclose. The court in Canterbury v. Spence ruled that the consent standard is what is reasonable under the circumstances. The test for disclosure is materiality to patients decision

Exceptions for unconscious patient and situations where risk disclosure would harm the patient

Arguments for informed consent Autonomy => people have right to determine what is done to their bodies Cost-benefit analysis, patients will act in their best-interest

Arguments against Scope, only a reasonable explanation is required Cost/time

Insanity o McGuire v. Almy ruled that insane people are liable for intentional torts when they have the intent to act. Insanity does preclude intent to harm. The court said nothing here about negligent torts, only intentional ones. Thinly veiled SL o Caregivers will be more careful No incentive to plead insanity Can pay for services should pay for harms Fairness between two innocents the cause should pay If caregivers cant recover than there will be none Administrability courts find negligence hard

Gould institutionalized not liable for attacks on caretakers Assumption of risk Trustees have done all they can (institutionalized), serves policy interest

Self-Defense o Riots, robberies and police. When the D assaulted a police officer that he thought was an attacker Courvoisier v. Raymond held that self-defense includes situations where a reasonable person believes his life is in danger. The jury instructions in this case should have included that possibility. o Types: Person is actually being attacked: Truth SL

Person reasonably believes they are being attacked: Objective statement Negligence

Person, in heart of hearts, actually believes they are being attacked: Subjective statement

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rd

Intentional tort

Accidental harming of a innocent bystander by force reasonable intended to repel an attack by a 3 party is not actionable unless intentional or the risk is excessive (Morris v. Platt, pg. 39)

Defense of property => Bird (spring gun trap) => cant do indirectly what youre forbidden to do directly => spring gun is disproportionate force

Necessity o In Ploof v. Putnam P moors boat during storm, D removes it. Necessity justifies entries upon land and interferences with property that would otherwise have been trespass. Defense to trespass Applied with special force to the preservation of human life Self-defense involves people, necessity involves property Allows an imposition on the right of a 3 party
rd

Cannot be contracted Bilateral monopoly monopoly created out of a conversation, dock owner holds all the cards, no competition

Ds ship damaged Ps dock during storm. When someone uses another property for the protection of their own, damages are owed (Vincent v. Lake Erie, pg. 51). The ship used proper care in staying at the dock during the storm. Those in charge of the ship kept it there. Necessity here is an incomplete defense; D still have to pay for damages Intent with certainty of consequences (Vincent and Garratt) Liability v. No liability Liability boat insurance No liability dock owner takes damages as an operational pass through, passes costs to boats

Historical Background: SL v. Negligence

Introduction Two forms of action in English law o o Trespass: Most of the harms actionable at English law; Direct harm Case: Indirect harms not involving the use of force; Developed later; Consequential/indirect harm SL fault, Negligence no fault Chronology o o o o 17/18 Century SL 19 Negligence 20 Negligence + SL Today Sea of negligence with islands of SL
th th th

Forms of Action In Scott v. Shephard trespass held even though injury was not a direct result of D throwing squib into a market, where others threw it until it exploded in Ps face. Everyone who does an unlawful act is the doer of all that follows. The consequences of the original act were foreseeable to the D. o Blackstones arguments against majority Damage was caused by the explosion, this was not a projectile that was diverted but one that was given new life by the actors Not self-defense action of 3 parties was unreasonable Not necessity
rd

In Guille v. Swan ballooner calls out for help and people trample a field. Court rules that if D invites the damage caused, he is liable for it in trespass. Lack of intent doesnt shield the D from responsibility; he should have foreseen the consequences.
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Strict liability and negligence in the last half of the 19 Century Growth of negligence during this time In Brown v. Kendall D raises stick to separate dogs, hits P in the eye. D not liable unless not using ordinary care and P is not contributorily negligent. Without fault or intent to harm or act unlawfully this is not an intentional tort. Fault is the beginning of negligence. o Ordinary care the kind of degree of care that prudent and cautious men would use based on the case and necessary to guard against danger Fletcher v. Rylands Ds reservoir spills water onto Ps land. o o Court of Exchequer Pleas No liability without negligence Court of the Exchequer Chamber Anyone who keeps anything on their property that would do damage if it escaped does so at their own peril.

Reservoir is an unbalanced risk, inherently dangerous

House of Lords Affirms

Brown v. Collins Ds horses frightened by train and damage Ps lamppost. Court rejects Rylands escaping rule, rules that D is not liable because he used ordinary care. Holding D liable would hamper societal progress. Distinguished from Rylands because escaping water/fire is dif. than escaping animal

In Losee v. Buchanan an exploding boiler harms Ps land. D not liable. Living in civilized society requires risk. P receives compensation for damages in the general good and in the fact that P can have a boiler on his own land.

Ds car, properly operated, releases sparks and ignites Ds hay. D is held liable. Bramwell says that if the use of a machine is profitable then damages must be paid, if not use is a nuisance and should be barred (Powell v. Fall) o Considerations: fairness, cheapest cost avoider, with SL factories internalize externality Allocative Efficiency Powell have factory account for all costs Cost internalization Losee we need boilers Subsidy/incentives Distributional Fairness Dont stick one person with the bill Powell make money, pay for harm caused Losee P has benefit of boiler, cant complain Mutual risk

Issues Distributional fairness, allocative efficiency SL

Negligence

Holmes writes about two theories of tort liability o o Man is answerable for all his actions (rejected) Personal fault (no foreseeability, no fault)

Strict liability and negligence in modern times Bolton v. Stone is the cricket case. House of Lords, overruling lower court says because risk of ball hitting someone outside the ground was small, reasonable person would have done nothing and there is no breach of duty. Holds that risk must be foreseeable and substantial to impose duty. o o Distinguishes from Rylands, this is personal injury case (neg) as opposed to property (SL) Negligence schemes Foreseeable quasi-SL => P Foreseeable and substantial => P x L BPL Burden, Probability of harm, Loss/magnitude of harm

In Hammontree v. Jenner a car driver has a seizure that forces him into a collision. Court refuses to apply SL to users of the road. Legislature can if it wants to. o If no foreseeability, no liability

Negligence
Quick Outline Breach => did Ds conduct fall below applicable standard of care; when you dont behave as a reasonable person? Duty => did D owe P a duty to conform conduct to avoid unreasonable risk? Causation => was Ds failure to meet standard of care causally connected to Ps harm? Damages => did P suffer harm?

PART A BREACH
Reasonable person standard In Vaughan v. Menlove the court ruled that a man must use his property so as not to injure others. The court held the D liable when improperly stacked haystacks caught on fire. Test for gross negligence is the reasonable person standard. o Majority ordinary prudence o Like reasonable belief (Courvoisier)

For simpleton, negligence is SL If you arent up to the reasonable person standard, you pay for everything

In Roberts v. Ring the court held that there is no individualization of the negligence reasonable person standard for old age. Here the old guy hit a child while driving. Children not held to same standard as adults. Like Menlove, D cant raise his level of care to ordinary person like SL Child may have been CN, but not held to same standard when engaging in child-like activity

When children engage in adult activities they are held to the adult standard. (19 year old killed riding a motorcycle, crashed into car. Daniels v. Evans, pg. 153) o Would be unfair to the public otherwise

Bruenig v. Am. Fam. Ins. Co. the court held that sudden mental incapacities are equivalent to sudden physical attacks (heart attacks, etc.) instead of being grouped in with general insanity. The jury could have found that they were foreseeable and could have made her liable for her negligence if so (pg. 158) o Can handle the case like either McGuire (insane liable for intentional torts) or Gould (person who commits act is liable if everyone is innocent)

Court in Fletcher v. City of Aberdeen ruled that cities have a duty to provide reasonable warning of risk to people using reasonable care based of their subjective situation. Subjective reasonable standard cant hold blind guy to the same standard as a seeing person. Contributory negligence. (pg. 162) o City is cheapest cost avoider

Summary Personalize reasonable person standard? o o o o Intelligence No Elderly/infirmity No Infancy Yes, except for adult activities Physical disability Yes

Objective v. Subjective o Objective no individualization o Easy admin, less fraud, outsiders deserve basic level

Subjective individualization Deterrence level, moral desert (how can we ask someone to do better than they can), can never have a purely subjective standard (jurors cant know exactly what D knows), moral desert (punish dumb guy for doing the best he can)

Calculus of Risk BPL Scenarios: o 1) PB>PC and SB>SC o Good

2) PB<PC and SB<SC Bad activity, but good state of world

3) PB>PC and SB<SC Net harmful activity that people have incentive to do => tax, criminalize

4) PB<PC and SB>SC Good activity that people have no incentive to do => subsidize

Negligence by omission: negligence is omission of an act that a reasonable man would do or vice versa. D in Blyth v. Birmingham Water Works not liable for frozen and busted pipes because cold weather was unforeseeable. (pg. 166)

In Eckart v. Long Island R.R. a man died trying to move a child from the path of an oncoming train. Negligence implies an act or omission that is wrongful in itself => not wrong to try and save the child. In looking at collateral object (thing being rescued) we look at the value of the thing saved and the probability of success. (pg. 167) o High regard for human life

(Terry, Negligence, pg. 169) To make conduct negligent the risk involved must be great and unreasonably probable. Not every want of care results in liability, just want of ordinary care. Idea of balancing social interests. Example of splashing someone while driving in the rain. Not liable because ability to travel in rain is highly valuable. (D opens car door, P hits it with his bike. Osborne v. Montgomery, pg. 33)

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In Cooley v. Public Service Co the court ruled that a D cannot be liable if you do and liable if you dont. Ds power lines hit phone lines and injured someone speaking on the phone. She claimed that a basket to catch the lines would have presented the accident. This basket would have created other dangers. Reasonable alternative standard no duty to take a precaution that will create a new danger for someone else. (pg 173) o Cost-benefit analysis not done in a vacuum.

THE BPL CASE. Owners duty to provide against injury a function of three variables: B Burden of precaution, P Probability, L Magnitude of harm. Fair requirement that their be a bargee on the boat. The court noted that if there was a custom it might control. (D towing boats, one gets loose. U.S. v. Caroll Towing Co., pg. 175)

BPL chart (cricket example) o o o o o Marginal calculation Liable if B<PL Stop at 20 ft, pay $200 to save $300 in losses Activity Level Risk neutrality Height 10 feet 20 feet 30 feet 40 feet 50 feet Cost $100 $200 $300 $400 $500 Total cost $100 $300 $600 $1000 $1500 P of ball hitting head 40% 30% 20% 10% 0% Head = $1k (P*L) $400 $300 $200 $100 $0 Total loss avoided $400 $700 $900 $1000 $1000

SL v. negligence both efficient o Why choose SL? Distributional fairness why make victim pay? Discontinuity With negligence, damages go to zero at BPL line Negligence encourages taking excess precaution

Administrative costs with SL jury doesnt have to deal with care issue, just damages

Activity level more activity equals more risk, negligence doesnt account for this Makes parties take a higher level of care

Custom In Titus v. Bradford, B & K. R. Co., D RR company not negligent for using Nypano cars, juries cannot dictate customs or control the business of a community (old time view). Employers are not insurers. Not bound to use the newest and best appliances. Custom dictates ordinary risks of business. Assumption of risk of workers. (Pg 188)

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P in Mayhew v. Sullivan Mining Co. argued that not placing railing around hole in mine was negligent. Court decided that custom is no defense for lack of ordinary care. No rail grossly negligent. (Pg. 190)

There was no custom; it was negligent not to have radios. Cost low, probability of harm medium, loss high. (Tugboats without radios. The T.J. Hooper, pg. 191 & 192) o o o Carroll, 15 years later, if there is a custom, it controls Here: BPL regardless of custom If the utility of a safety precaution outweighs the cost of the precaution, then it is negligent not to carry the safety precaution

Overview: Mayhew Custom irrelevant TJ Hooper BPL trumps custom Bimberg Custom is evidence of care Titus Custom controls

Medical Custom o Practice of general practitioners or specialists relevant in malpractice cases. (No conservative treatment. Lama v. Borras, pg. 197) o One of the few areas where custom defines the standard

(Helling v. Carey, pg. 207) P suffered from not receiving glaucoma test. Professional norms didnt require pressure tests. Doctor was liable. BPL applied. Holding limited to its facts Single most notable break from standard of customary care

(Small v. Howard, pg. 205) Locality rule, custom is standard of doctors in the community. 1880.

(Brune v. Belinkoff, pg. 205) Overrules locality rule. 1968 Problems Rural less equipment Poor v. Rich, clinics v. hospitals SL for less well-equipped hospitals, Menlove for hospitals

Informed consent => Canterbury => doctor has a duty to disclose all reasonable information about a proposed treatment to his patients => British reject this because of paternalism

The standard of care in medical malpractice case typically requires: That a doctor must use the degree of skill and learning which is normally possessed and used by doctors in good standing in a similar practice in a similar community and under like circumstances; OR That a physician who undertakes a mode/form of treatment that a reasonable resident member of the medical profession would undertake under the same or similar circumstances shall not be liable for harm caused thereby to the patient.

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Often theres no single custom

Epstein on custom o Consensual/people in industry custom Assumption of risk (Titus) Bilateral risk (car collisions, barges) Possible to contract around customs you dont like o Bargaining power issue

Stranger no custom No idea about the custom No assumption of risk (Mayhew)

Negligence per se Violate statute Statute a factor Pure negligence negligence per se Harm must be within purpose of the statute o No liability for sheep falling off boat when statute was designed to prevent exposure to disease (Gorris v. Scott (Eng.), pg. 230) States cant enforce defective statutes, but violation of those statutes in negligent (Clinkscales v. Carver, pg. 227) OSHA regulations that werent implemented until 6 months after incident were allowed as evidence of negligence in selling tractor without roll cage. (Roll cage. Hammond v. Intl Harvester Co., pg. 227) Violation of a statute constitutes negligence per se and cause of action can come from that violation. (Mislabeled poison. Osborne v. McMasters, pg. 228) Restatement (Third) of Torts violation of statute = negligence per se o Court may adopt as a standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively or in part: To protect a class of persons To protect a particular interest To protect the interest against the kind of harm which has resulted AND To protect that interest against the particular hazard from which the harm results Exceptions Emergency, necessity No exceptions Strict negligence per se

(Thayer, Public Wrong and Private Action) Legislative supremacy justifies rule that violating statute is

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(Stimpson v. Wellington Service Corp) Statutes can have dual purpose for cause of action. In this case, protecting drivers and protecting streets from overloaded trucks. Case involved driver without truck license harming property with overloaded truck.

Unexcused violation of statute is negligence per se. Legislature sets the standard of case and reasonable person follows those statutes. There still has to be causation between the violation of statute and the injury that results. (No headlights. Martin v. Herzog, pg. 233)

(Tedla v. Ellman, pg. 234) P walking wrong way on highway. Statute that codified common law rule also codified exceptions, even if not explicitly in statute. Difference between rule (like SL) and standard (like negligence)

Violation of statute requires no remedy if there is no injury. The purpose of the legislation in Brown v. Shyne (pg. 235) was to prevent unskilled people from practicing medicine, not to prevent medicine being practiced without a license. o Violation not necessarily evidence of negligence CHANGES RULE

Violation of statute that results in injury is negligence. P was in protected class, like Hudson v. Kraft. (Keys left in car, thief steals is and hits P. Ross v. Hartman, pg. 240) Dram shop statutes o o Bartender has to defend himself normally Person who gets drunk now a protected class (Ewing v. Cloverleaf Bowl, pg. 241)

No negligence per se without duty. Statute imposed no duty to administer tests, legislature intended for administrative enforcement. Here there was no legislative intent to create a private cause of action. (Scoliosis tests. Uhr v. East Greenbush Central School Dist., pg. 242)

Res Ipsa Loquitur Res ipsa loquitor: the thing speaks for itself => invoked when P seeks to establish Ds negligence by circumstantial evidence Modern Res Ipsa elements: o Ordinarily doesnt occur without Ds negligence o Most important

Exclusive control (responsibility) Byrne employees (vicarious liability) Because barrels dont fall out of windows without negligence the burden is on the D to prove he hasnt broken duty to care Colmenares non-delegable duty (3 rules, below) Ybarra Either everyone or head surgeon has duty

o Results

No CN (Contributory Negligence)

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o o

Circumstantial Evidence Allows case to go to jury Who wins?? 0% 20% D, direct verdict 49% D wins 51% P wins by jury w/ ipsa 80% P, direct verdict 100%

Res ipsa only gets you to the jury, directed verdict is rare

The court in Colmenares Vivas v. Sun Alliance Insur. Co. (Escalator case, pg. 268) ruled that res ipsa is: o o o (1) Inference of negligence (2) Exclusive control on part of D (3) Accident not due to Ps voluntary actions (no CN). Exclusive control when responsibility shared if duty is non-delegable.

In a case where a patient was injured while unconscious during surgery the court in Ybarra v. Spangard said that assisting nurses and physicians become the agents of the head surgeon during surgery. Several defendants not a defense to res ipsa. (pg. 276)

Plaintiffs Conduct Introduction o CN o P has not taken reasonable care

Assumption of Risk When P has deliberately and voluntarily encountered a known risk

Contributory negligence o For negligence, D must be negligent and P must not be. CN occurs when D is negligent and then P is negligent. (Pole on road, no ordinary care used, Butterfield (Eng.), pg. 288) o Burden of proof of CN defense rests on D. In Gyernam v. United States Lines Co. the D did not show that reporting the unsafely stacked fishmeal would have done nothing to improve the situation. Causation between the CN and the harm is required. (pg. 293) o CN turns on whether the trier of fact concludes that the injured person was able to control his actions. If you cant control your actions you cant be contributorily negligent. (Ditto fluid and tang. Padula v. State, pg. 298) o Absolute right of property concerning CN. (Train sparks ignite hay. LeRoy Fibre Co. v. Chicago, Milwaukee and St. Paul Ry., pg 300) Spark preventer on RR, B<PL

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Not wearing seatbelt is NOT CN. Not wearing belt is conduct before the accident Eggshell skull rule, no statutory requirement to wear seatbelts. (Accident, P not wearing seatbelt. Derheim v. N. Fiorito Co., pg. 304)

Beems v. Chicago RR said that P should expect train to slow down, took reasonable care before trying to unhook cars, no CN when his foot was run over.

Last Clear Chance o o CN does not mean no recovery if D could have avoided the accident with reasonable care. The party who has the last clear chance of avoiding the accident is responsible for it. (RR hits guys on the track. Fuller v. Illinois Central R.R., pg. 308) The donkey car crash story (Davies v. Mann). Can look at it temporally (Fuller, Davies) or moralistically (WMATA, higher level of action is liable)

Assumption of Risk o Pro o Con o Coercive bargaining problem Paternalism, P is supposed to be protected by statute Blame P knew risk but continued to work Freedom of contract/risk premium

Where a worker knows the risk and stays no suit for negligence is valid. (Falling axes. Lamson v. American Axe & Tool Co., pg 318) Argument against economic duress, change in job/hidden hazards Progressives pass workers compensation

The timorous may stay at home. One who takes part in a sport accepts the risks so far as they are obvious and necessary. A hidden danger would be a tort, here the danger was not hidden. (Flopper. Murphy v. Steeplechase Amusement Co., pg. 322) Hidden danger is tort CN is reasonable person (objective), AR is voluntary acquiescence (subjective) Global negligence argument If injury costs are too high compared to entertainment value then the flopper should close

In the ice skating case, Meistrich v. Casino Area Attractions, the court set out primary assumption of risk: D is not negligent (consent, no duty, therefore no breach of duty) and secondary AR: D is negligent (breaches duty) but P is unreasonable (CN) (pg. 326) Kills AR defense it depended on Ps intention to get involved in an activity, this case makes everything objective (based on reasonable person)

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Firemans rule Because firefighting is an inherently dangerous job, if someones CN affects a firefighter the person who is CN is not liable to the firefighter. Applies to other jobs as well.

Comparative Negligence (CMN) o The idea that many people can be the cause. Apportions liability based on the level of fault of the parties o Rule is intended to discourage accidents by denying recovery to those who fail to use proper care for their own safety => but rule promotes accidents by encouraging the negligent defendant o Rules o Pure all proportion 50% - P needs to be less than 50% responsible

Establishment of pure CMN (see above). CN is unfair if the P is only slightly negligent compared to the D. Legislature created CN statute expecting judicial evolution. (Li v. Yellow Cab Co. of CA, pg. 337)

PART B - DUTY
The general rule is that there is no duty to a stranger. Exceptions below. Duty to Rescue No duty to trespassers of any age. Not bound to warn of hidden dangers or to protect him from injury. Only bound not to use violence. No intentional torts allowed. (Child crushes hand trying to learn brothers machine. Buch v. Amory Manufacturing Co., pg. 497) Doctor under no duty to help all patients. A license doesnt mean that a doctor has to help patients at their request. (Doctor wont treat patient. Hurley v. Eddingfield, pg. 499) No duty to save a person in danger unless legally responsible for putting them in that danger. Nonfeasance doesnt bring a duty to rescue. Taunting causes no harm in adults. (Guy taunts other guys who jumps in water and drowns. Yania v. Bigan, pg. 500) Good Samaritan laws: FOR Act/omission is poor distinction Cost-benefit (low cost, high benefit) AGAINST Rugged individualism/liberty Hard to regulate Slippery slope Potential liability/dangers Create dependence Legal system not for legislating morality Administrability

Law does legislate morals o Common law establishes clear duty

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Ways to implement: criminal liability, tort liability, tort immunity, restitution/implied contract

Duty to take precautions when the omission of precautions creates dangerous situation. (Truck dies, no warning on hill. Montgomery v. National Convoy & Trucking Co., pg. 507) o o o Owner of truck created the risk Implied contract (Posner) Recognized duty (they put up some signs)

Once a risk is undertaken you cant omit something that an ordinary person would do in performing the task. (D messes up rescue. Zelenko v. Gimbel Bros., pg. 511) Duty not to interfere with third party giving or ready to give aid. (Bartender doesnt let guy call cops. Soldano v. ODaniels, pg. 512)

Gratuitous Undertakings If one voluntarily recognizes a duty they cant stop performing without notice because others rely on that standard. If a business recognizes a custom the court will hold them to it. (Railway watchman. Erie R.R. v. Stewart, pg. 536) One who volunteers to take care of or assist an ill, injured or helpless person is legally required to use reasonable care. (Cat scratching. Marsalis v. LaSalle, pg. 539) o o Cat escaped, reasonable care was not used Contract (express or implied)

One who undertakes to perform a contractual duty for another, and fails to adequately perform this duty, owes no special duty to any third party harmed by his non-performance, unless he specifically agreed to perform for the third party. Moch, waterworks case.

Duty to owners and occupiers Duty of care for people on land (Child gets caught in wheel. Addie v. Dumbrek, pg. 513) o o o Invitee (business) reasonable standard Licensee (social) warn of hidden danger Trespasser (no permission) no duty

Attractive nuisance artificial condition on the land that could bring unreasonable risk of death or serious bodily harm to children Duty to exercise reasonable care for everyone. The old factors of invitee, licensee and trespasser can be used as exceptions from the standard of reasonable but this is not guaranteed. (Guest hurts himself on faucet. Rowland v. Christian, pg. 521) o o Found that old distinctions do not make sense in modern society General retreat from the distinctions over time Visitor Distinction Invitee Common Law Reasonable care In Rowland Reasonable care spectrum

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Licensee Trespasser

Warn None

of care based on situation

Landlord has duty of taking protective measures guarding the premises against the perpetration of criminal acts. Court finds special relationship between landlord and tenant based on foreseeability of crime and control of the landlord over the premises. (Woman robbed in apt hallway. Kline v. 1500 Mass. Ave. Corp., pg 549) o o Landlord in cheapest cost avoider, avoids free-rider problem Also could have decided the case based on reliance leading to duty, the status of tenant as an invitee (assumption of risk), paternalism, cost-pass-through (security makes apts less affordable)

(Frances T. v. Village Green pg. 556) Duty from Kline passed on to condo boards that function as de facto landlords. May deter sitting on condo boards

Special Relationships Duty to control conduct to prevent harm when: o o There is a special relationship between actor and third person which imposes the duty The actor and the other which gives the other a right to protection

Liability is predicated on defendants creation of an unreasonable risk. Duty to protect when you cause the potential harm. Misfeasance (D responsible for making Ps position worse), not just nonfeasance (D fails to aid P). (Radio promo. Weirum v. RKO General Inc., pg. 548) o o o Liability because an act of D caused the harm Anyone can recover from misfeasance Only special relationship can recover with nonfeasance

The protective privilege of the doctor-patient relationship ends where public peril begins. Doctors and therapists have to conform to a reasonable standard of care. A has special relationship to B, duty to C (Tarasoff). (Patient tells therapist about intent to kill, then kills. Tarasoff v. Regents of the Univ. of CA, pg. 559) o Problems include patients being less likely to divulge information, and a shortage of doctors unwilling to be liable for the acts of their patients. o Person must threaten a specific person

PART C - CAUSATION
Factual causation scientific, but for causation. Does the Ds activity have any link to Ps harm? Proximate causation policy determination Joint and Several Liability joint tortfeasors Introduction

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Right of P among several Ds In Joint liability Ps are entitled to full recovery from each D Ex: P sues D1, D1 tries to recover from D2

Several liability Ds only responsible for their share of fault. Doesnt matter if one is bankrupt Ex: Can only recover 50% from D1 and D2

Joint and Several (J&S) - Remaining Ds have to eat the whole if some Ds are bankrupt

Rights between Ds Contribution Indemnity Partial Indemnity

Original rule was pari delicto, Ds could not recover from other Ds who were also at fault unless their fault was different in kind (indemnity). Indemnity allowed to hold a primary wrongdoer responsible (Faulty nut injures RR employee. Union Stock Yards Co. v. Chicago, Burlington, & Quincy R.R., pg. 355)

Court decides not to follow Li and abolish J&S in favor of a comparative negligence scheme. Court allows partial indemnity of Ds on a comparative fault basis. (Boy injured in race. American Motorcycle Assn. v. Superior Court, pg. 359)

Examples from Restatement (P 30%, D1 (bankrupt) 60%, D2 10%) o o o Pure J&S - P responsible for 30%, D2 pays 70% (D1 + D2) Several - P responsible for 90% (P + D1), D2 pays 10% J&S with reapportionment - P eats 75% of D1 amount, D2 pays 25% of D1s responsibility

Rights of Ds among themselves in American Motorcycle o Intermediate (CA before Amer. Motorcycle) Contribution pro rata (divide into equal chunks) 33%/33%/33% o Indemnification

Partial indemnification (Amer. Motorcycle) 60%/30%/10%

Settlement options (we didnt really touch on any cases with this except McDermott) o o Pro tanto Remaining Ds settle for the remainder of the damages when one D settles Pro tanto with contribution Remaining Ds can sue the settling D to equalize the amounts paid. This provides no incentive to settle. o Proportionate All non-settling Ds pay their fair share and P loses money if she settles low and keeps windfall if she settles high

What if you cant figure out causation? The theory of alternate liability tells us that both are liable when it cant be definitively proven which of the negligent Ds caused the harm. In Summers v. Tice

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the Ds who accidentally shot at P argues that since they were not joint tortfeasors that they were J&S liable. This is similar to res ipsa cases (not breach here), although res ipsa is useful in cases where who breached his/her duty cannot be proven and alternate liability is useful when causation cannot be proven. (Summers v. Tice, pg. 425) o Reasons for imposing alternate liability include moralistic reasons (Ds are more culpable compared to the P), evidentiary ones (adds incentives for Ds to rat each other out) and incentive ones (if nobody pays, nobody is deterred from being negligent)

Vicarious liability An employer will be held liable under respondeat superior if the actions of the employee arise out of the course of his employment. (Ira S. Bushey & Sons, Inc. v. United States, employee who gets drunk and floods dock) o Respondeat superior history: Vicarious liability refers generally to cases where one person is held responsible for the wrongful acts of another by virtue of some status connection between them => often called respondeat superior => unquestioned acceptance in all common law jurisdictions Law today holds both master and servants liable for torts that arise out of and in the course of employment o General rule: respondeat superior covers small deviations, but not large ones

As a general rule, no vicarious liability exists for the actions of independent contractors. Vicarious liability may nevertheless be imposed for the actions of independent contractors when an agency relationship is established under either the doctrine of apparent authority, or the doctrine of implied authority. (Petrovich v. Share Health Plan of Ill., Inc.)

Factual Causation scientific, but for causation. Does the Ds activity have any link to Ps harm? If negligence increases the risk of some harm and the harm occurs then we can create the presumption that negligence caused the harm. In Zuchowicz v. U.S. the P was overprescribed a drug and developed a fatal lung condition. Even though it could not conclusively be proven whether it was the drug or the negligence in overprescribing the drug that led to the Ps death the court held that the D bears the burden to deny the but for cause. Traditionally in medical malpractice suits if the doctor is negligent in the care of the patient but the patient has less than a 50% chance of survival notwithstanding the doctors negligence the P cannot recover. In Herskovitz v. Group Health Cooperative the court allowed a damage award when late diagnosis of cancer reduced the Ps chance of survival from 39% to 25%. The P was allowed to recover reduced damages to compensate for his reduced chance of survival.

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If it is proven that harm was more likely than not caused by the Ds negligence then P can still recover the full amount.

Enhanced risk Traditional scheme - >51% 100% recovery, <51% nothing Herskovitz (Hybrid) - >51% 100% recovery, < 51% proportion of risk Over-deters

Radical Risk Regime everyone can sue for their risk, regardless of harm

Kingston: establishes certain rules for simultaneous causes => violates but for causation => Fire A + Fire B combine and destroy Ps house => If A and B are humans = joint and several liability => human + nature = no liability (would have happened anyways) => human + unknown (Kingston) = burden shifts to A, otherwise joint and several => sequential causes (covered well in Abraham) = first in time is the cause => but B imposes risks too?! (In tort if you engage in dangerous conduct and nothing happens you DO NOT pay)

Market Share Liability Used to assess liability based on market share when: o o All Ds are potential tortfeasors The allegedly harmful products are identical and share the same defective qualities P cannot identify which manufacturer made the product o Substantially all manufacturers who created the product during the relevant time are Ds

In a market share case featuring lead paints the court found that lead paints arent necessarily fungible because they vary in their levels of bioavailability (different lead compounds), their amounts of lead and that all relevant manufacturers were not represented because some of them had left the market. Skipworth v. Lead Industries Assn.

Proximate Cause policy determination Introduction two theories o o Direct Foreseeability

In Ryan v. New York Central R.R. the D negligently set fire to his own woodshed which spread to another house. The court ruled that the P would not be able to recover because the negligence of the D was not the immediate but the remote result of their negligence. If the blaze has spread throughout the city everyone would not have been able to recover from the D. The remote cause of the negligence wasnt foreseeable. The court talks about the consequences of allowing everyone to recover including crushing liability and insurer concerns.

Intervening causes break the chain of causation and can reduce the liability of the original negligent act. In City of Lincoln the court held that acting with reasonable care does not break the chain of causation and is not an intervening cause. A captain being unable to bring his ship to port using

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reasonable care after an accident is not an intervening cause and does not absolve the negligent actor of liability. In Wagner v. International Ry. the P injured in search for his cousin who had fallen off Ds train. The court held that danger invites rescue and the acts of P trying to rescue someone else were not an intervening cause and didnt break the chain of causation. Ps actions were a natural consequence of Ds negligence. In general, where the intervening actor has greater culpability he is a superseding cause, where the intervening actor has less culpability he is not => like last clear chance, last really bad actor with ties will be culpable In Polemis the Ds agents dropped a plank that started a fire that blew up the ship they had rented from the P. The explosion was not foreseeable but the court ruled that the damage being foreseeable didnt matter as long as it was a direct result of the negligence of the D. The court rules that as long as you have duty (reasonable care) and breach (dropping the plank) you are liable for any damages that result regardless of the foreseeability. One there is negligence, the D is liable for all direct consequences. Compare that case to Wagon Mound where a ship explodes after welding sparks fell onto an oil spill and the ship in question exploded. Under Polemis the D (the people who spilled the oil) would have been held liable for all the consequences of the negligence (namely the explosion of the ship) regardless of the degree of foreseeability. Here the court ruled that D is liable only for damages that were foreseeable and probable. The court ruled that the explosion of the ship was not something that should have been foreseen. Wagon Mound overrules Polemis o Are these cases distinguishable by the fact that the P in Wagon Mound sent sparks?

In Palsgraf v. Long Island R.R. a passenger tried to board a moving train helped by the trains employees. In the process of pushing him aboard his box of fireworks drops, explodes and tiles injure the P on the other side of the station. Court holds that you have to examine duty before anything else. You can only sue if theres duty and only win if theres proximate cause; the two are basically the same thing. The RR owes no duty to the woman on the platform, only to the passenger boarding the train. The damage was not foreseeable. The conduct of the guard was not a wrong towards the P, opposite of Polemis o Andrews dissent says that everyone has duty; duty is general. Proximate cause is practical application of but for causation.

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Strict Liability
Introduction Everything is negligence except for a few things: Trespass to land, McGuire rule for insane people, escaping things, common carriers, vicarious liability (employer-employee), things in this section (animals, ultra-hazardous, nuisance, products liability) Animals The rule for wild animals is SL (global negligence, its negligent in an of itself to have a wild animal). For domesticated animals Gehrts v. Batteen says that if there is knowledge of an animals dangerous characteristics it is SL, if there is no knowledge it is negligence standard.

Ultra-hazardous Before Spano v. Perini Corp the rule on ultra-hazardous activities was SL if there was physical invasion and negligence if there wasnt (concussions, vibrations, etc). The Spano court ruled that all damage from blasting is SL when the Ps property was damaged by blasting but was not subject to a physical invasion. Transportation of dangerous chemicals is not in and of itself an ultra-hazardous activity according to Indiana Harbor Belt RR v. American Cyanamid Co. The risks involved can be eliminated by not being negligent and the activity is not inappropriate to location because it would be prohibitively expensive to reroute the shipments away from cities. In Madsen v. East Jordan Irr. Co. the court held that the D was not liable when blasting resulted in the Ps minks eating their own offspring. The court held that the harm was not within the risk because it was not direct (like Polemis) or foreseeable (like Wagon Mound). Nuisance

Nuisance is a property concept and is on decline. Before the creation of the EPA it was the primary way to go after pollution. Nuisance is a non-trespassory invasion that detracts from the use of the land. Nuisance law is applicable to stray voltage when it kills cows because that detracts from the use of the land, even when the landowners purchase the electricity. Nuisance must be intentional, if it is unintentional then negligence laws govern. Vogel v. Grant-Lafayette Electric Coop. Types: o Intentional nuisance A: Intentional / knowledge of continuing harm Social benefit < social cost Strict liability o Intentional nuisance B: Intentional / knowledge of continuing harm Serious harm and ability to pay Strict liability In Rogers v. Elliott (bell ringing case) the court ruled that nuisance must be determined by the effect of the activity on the people generally, not just by its effect on one sensitive person. This doesnt go against the eggshell skull rule because it just determines liability and not damages. Coming close to a ringing bell is like coming to the nuisance. If someone doesnt come to the nuisance but is the nuisance that people come to the court in Ensign v. Walls wouldnt let the nuisance (here, a dog kennel) stay forever. The kennel wouldnt be able to stay against the wishes of an entire neighborhood that has sprung up around it. In Boomer v. Atlantic Cement area residents sued a polluting plant. The court did not grant an injunction because of the economic disparity between the effects of the activity and the injunction. Alternatives to injunction include delayed injunction and awarding of permanent damages. The court here ruled for the payment of permanent damages. o Isnt this just punch and pay?

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Complications to negligence o Extra-sensitive benefits need to be measured relating to everyone, individual exceptions would hurt that. Vosburg relates only to damages, not liability o Malice/spite fences Nuisance under SL because it is unreasonable fails global cost/benefit analysis o Coming to the nuisance Majority (no) Minority (yes) assumption of risk Allows kennel owner to dictate use forever Purchased injunction

Products Liability MacPherson v. Buick changed the privity of contract requirement for products liability. Prior to this case (Winterbottom v. Wright was the rule) you had to have privity of contract to sue under products liability. The only exception was for inherently dangerous products. MacPherson allowed a car buyer to sue Buick even though Buick had sold the car to a dealer, not the individual. Cardozo wrote that a product is negligently made than it can be classified as inherently dangerous. He held that it was foreseeable and probable that a car would be dangerous if it were negligently made. You can sue the manufacturer if theres knowledge rd that a 3 party is likely to use it or is theres no additional testing. Cardozo also looked at the progression of products liability through older cases o Loop Lessee of circular saw cannot sue the original seller despite inherent dangerousness because of assumption of risk. The buyer of the saw assumed the risk because he bought it cheaply. o Losee The buyer testing the exploding boiler was an intervening cause o Devlin Extension of doctrine, privity of contract not required if product is dangerous when badly built. o Exploding coffee urn same extension Escola v. Coca Cola Bottling Co. is best known for Traynors concurrence that set the state for future products liability. Here a bottle exploded in a womans hand. The majority said that res ipsa allowed the suit. Traynors concurrence would have imposed SL. First, the manufacturer is in the best position to prevent damages (cheapest cost avoider activity level). The manufacturer can spread the losses among all consumers (problems include lack of incentive to stop and first-party insurance). SL was already in place for foodstuffs, even though the Legislature hadnt extended the rule Traynor might have. Traynor looks at implied warranty. Finally in looking at res ipsa he notes that nobody, including the manufacturer actually knows what went wrong. He reasons that SL is the solution. Defects Manufacturing defect departs from intended design (SL) Design defect Need a reasonable alternative design. Unsafe because alternative was not followed (negligence) Warnings

Manufacturing Defects You cannot recover for economic losses under products liability. It is governed by contract, not tort. Casa Clara v. Charley Toppino & Sons noted the economic loss rule where tort recovery is prohibited when a products damages itself causing economic loss but doesnt cause injury or damage to any other property. The court applied this rule to the case here

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where poor concrete fell off a condo and damaged the steel. The court ruled that the condo was one entity and that the concrete and steel were not separate products. Casual sellers cannot be sued under products liability; they have to be sued in negligence. They cant loss spread or innovate new methods. Caffazo v. Central Medical Health Services ruled the doctor is not liable under products liability for prosthesis. The P likens the doctor to a reseller but the court notes previous rules that state that concepts of purchase and sale cannot be applied to healing materials. Generally a seller is SL and a service is negligence. The court ruled that the D failed the four part inquiry for products liability: availability of some entity to redress, incentive to safety, supplier in better position than consumer to prevent the circulation of defective products, and whether supplier can spread the losses. Pharmacists are not subject to SL because they are engaged in the provision of a service. If there was SL they might not carry some drugs or theyll raise prices. Loss spreading works fine with large chains but not with small independent pharmacies. Murphy.

Design Defects How do we test? o Open and obvious (tradition) nd o Consumer expectation (2 Restatement) comes from warranty o Risk/utility make it safer cheaply (B) and effectively (PL) rd o Reasonable alternative (3 Restatement) burden of proof on P Prefers consumer choice Manufacturers have a duty to protect against reasonably foreseeable things. In VW of America v. Young the court held that car manufacturers have to protect drivers from second collision effects (like the seat breaking off the frame in an accident). Court applies standard of reasonableness. No recovery if danger is obvious to the consumer o Evans no design defect because the only intended use of a car is transport, not getting into accidents. o Larsen design defect because accidents are reasonably foreseeable The Barker v. Lull Engineering court held that a product is defective in design if: (1) the product doesnt perform as safely as a customer might expect or (2) the benefits of the design do not outweigh the danger inherent in the design The court in Linegar v. Armour of America held that the test for unreasonable dangerousness is the consumer expectation test. This is similar to part 1 of the Barker holding. The vest in question stopped bullets that hit it but obviously did not stop bullets that did not contact the vest. The court also looked at part 2 of the Barker test and noted that the vest allowed mobility and comfort. The reasonable alternative test can be made more P or D friendly depending on who has to prove what. When a product operated as the consumer intends it to there is no case, even when its use is deadly. In Halliday v. Sturn, Ruger and Co. the court held that there was no cause of action when a child operated his fathers gun and shot himself with it. The court punted on the need for heavy triggers and other safety measures, deferring to the legislature. MacDonald v. Ortho Pharm. Corp. introduces the learned intermediary doctrine. A manufacturers duty to warn the end user is interrupted by the doctors duty to warn the patient. The doctor is an intervening cause. Here the patient sued the manufacturer for inadequate warning. Here the court said the manufacturer had a duty to warn the end patient because of several factors including advertising, activity of the consumer, lack of meetings between patient and doctor. Also, the manufacturer can foresee that the doctor will fail to warn the patient.

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Vassallo v. Baxter Healthcare Corp. changed the duty to warn. In this breast implant case the court ruled that the manufacturer has the duty to warn of known risks and ones that could be known with reasonable testing. (Majority rule) o Minority rule D liable for all risks, known and unknown In Hood v. Ryobi the P sued Ryobi for inadequate warnings regarding use of the guards on a table saw. The court ruled against the P noting that the warning need only be reasonable. The court also looks balances the benefits of requiring more specific warnings against their costs. o Court, it seems, applies the Polemis rationale. The injury occurred as a direct result of Ps CN act, so Ryobi is not liable. o The actors CN was also an intervening cause in Ayers v. Johnson and Johnson. The jury regardless found for the P and the verdict was sustained on appeal. The court noted that the jury could have found that with greater warnings the P would have taken greater care. Ayers appears to take a Wagon Mound (Harm not within risk, but unforeseeable) Daly v. GM expanded CMN to strict products liability. Here the Ps CMN was ruled to be a defense to SL when the driver of a car who was drunk got in an accident and the door was forced open. P died. The court ruled that CN/CMN is a defense to SL (majority rule)

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Damages
Three kinds of damages Compensatory (making P whole) o Pecuniary/economic hospital bills, lost wages, etc. o Nonpecuniary pain and suffering Punitive (deter punishment) Non-pecuniary damages McDougald v. Garber is a med-mal case, a woman went in for a c-section and came out with brain damage. The jury awarded separate awards for pain and suffering and loss of pleasures of life. The court ruled that someone with brain damage cant recover for loss of pleasures of life because they dont recognize that they have. The dissent argued that this means that people with more injuries receive less damages. In Duncan v. KC So. RR the court looked at other similar cases to determine a proper award for non-pecuniary damages. Punitive damages Kemezy v. Peters is the prosecution of a constitutional tort. It lays out 7 reasons for punitive damages o 1. Compensatory damages dont always fully compensate o 2. Punitive damages are needed to deter tortuous conduct o 3. Punitive damages are necessary to force people to channel transactions through the market when costs of voluntary transactions are low o 4. If an act is concealable, damages equal to the harm underdeters o 5. Punitive damages register public disapproval o 6. Punitive damages relieve pressure on the criminal system o 7. Giving redress for minor offenses better than violent self-help Several of these reasons were included in the discussion of Jacque v. SteenBerg Holmes in class where a mobile home company built a road on someone elses land. Reasoning: avoids punch-and-pay, quasi-criminal (criminal sanction insufficient, self-help), expressive, compensation for intangible harms, detection, deterrence Sometimes punitive damages are enormous compared to actual damages in a suit. In State Farm v. Campbell compensatory damages were $1M and punitive damages were $145M. The court noted that it was punishing State Farm for its nationwide business practices. The appellate court looked at the BMW test (not covered previously) to see if the award violated due process. The test is: o Reprehensibility o Ratio of compensatory/punitive damages o Punitive v. civil penalties Two things came out of the State Farm decision o Using a nationwide problem as a justification for a large punitive damage award violates due process o Few ratios larger than 9/1 will satisfy due process Emotional Distress Ordinary case o Physical harm Physical damages and emotional distress In Wilkenson v. Downton D told P that her husband has suffered serious injury as a joke. P suffered injury. The court held that since the intent was to inflict emotional distress, which is unlawful, D is responsible for everything that follows. o Its the Vosberg of emotional distress cases Restatement on IIED o Intentional (reckless)

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Cause severe emotional distress/physical harm Reduce number of cases Reduce fraud Elements of IIED: o Extreme and outrageous conduct Reasonable person standard Consider situation of individual o Intent to harm Awareness Garatt v. Dailey issue => intent to act with substantial certainty that harm will occur o Severe emotional distress or physical harm You need: o Negligent act o Emotional harm o Proximity requirement Key concern: without establishing physical/proximity nexus, liability expands too much Dillon (direct observation): Physical proximity Personal proximity Close relationship NIED o Negligent act o Proximity requirement (expands going down) Suffer physical harm Any impact Warps the physical harm requirement, using the nudge as a marker to distinguish you from everyone else who wasnt touched Zone of danger Dillon v. Legg (close relative who saw injury to child) => Plaintiff can recover for negligent infliction of emotional distress even if he is not within the zone of danger.

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