TORTS OUTLINE CRESWELL 2005 TORT a breach of social standards of conduct requiring compensation for damages caused by the

he breach Tort Law a civil wrong; an action that has created damage (other than a breach of contract) 4 major purposes of TORT LAW: I To provide a peaceful process for adjusting rights of parties (resolving disputes) II To defer wrongful conduct III To encourage socially responsible behavior IV To restore injured parties to their original condition, insofar as the law can do this, by compensation (status quo) LIABILITY BASED UPON FAULT I An individual who directly injures another is liable for his actions (Anonymous, 4) A) Compensation should be ordered whether conduct is accidental or not, if the D ordered the action that ultimately caused the injury (you break it; you buy it!) An individual is liable for injuries he causes unless he can prove the accident was inevitable or utterly without his fault. (Weaver v. Ward, 5) accidental musket discharge during military exercise A) Burden of proof is on D.

II

III. Reasonable Person standard each person owes a duty to behave as a reasonable person would under the same or similar circumstances. (Brown v Kendall, 6) A) In cases of accidental injury, P has the burden of proving that D failed to use ordinary care in taking the action that caused Ps injury (change in burden of proof) Ordinary Care = that degree of care which prudent and cautious men would use. IV. An individual is not liable for injury when an unpredicted event causes him to lose control of his actions (Cohen v. Petty, 10) guy fainted in car Oh Tree, I feel so sick! A) In order for D to be liable, P must offer proof of negligence on Ds part.

V.
A) B) C)

When should compensation be ordered for injuries caused by Defendant? Intentional Injuries Injuries Caused by Negligence Injuries Caused by Strict Liability Activities

INTENTIONAL TORTS I II Elements: An Act + Tortious Intent + Damages Intent knowing with substantial certainty that ones acts will bring about a physical or mental effect upon another person, but does not need to include a desire to harm that person A. Test Did the actor act with a desire or belief with substantial certainty?

1. Whether the D had the intent is measured by whether he acted with the desire to cause the result or
believed that the result was substantially certain to occur. i.e. the D must have desired a harmful or offensive touching or believed that such a touching was substantially certain to result from his act (Garratt v Dailey, 17) boy pulled chair

B. The age of the actor, if he is less than 6 years old, is relevant insofar ass it affects his ability to firm the intent required
for liability for battery. (Garratt v. Dailey, 17)

C. Intent to cause harm is not required only intent to do the act. (McGuire v Almy, 25) insane girl
a. Insanity is no defense.

D. Mistake is no defense. Where D mistakenly destroys Ps property, but had the purpose of destroying it, D has sufficient
intent for tort liability. (Ranson v Kittner, 23)

E. An actor who acts intentionally, is liable for the consequences of the act regardless of how remote or unforeseeable the
harm may be. (Spivey v Battaglia, 20) unsolicited friendly hug a. Where the actor of a volitional act that causes injury knows that the act is only a foreseeable risk which a reasonable person might expect. ?????

F. Insane individuals are liable for their intentional conduct, if it is shown they possess the required intent
(purpose/knowledge or substantial certainty) (McQuire v Almy, 25)

G. Transferred Intent intent can transfer across torts or across people. When one intends to harm another it is no defense
that an unintended person instead was harmed. (Talmage v Smith, 28) boys on roof - Transferred intent only applies to battery, assault, trespass to land and chattels, and false imprisonment. It is excluded intentional infliction of emotional distress II. Battery intentional infliction of a harmful or offensive bodily contact with merely the intent to cause contact and not necessarily cause harm. Cole v. Turner, 29 Elements of Battery 1. That the least touching of another in anger is a battery. 2. If two or more meet in a narrow passage, and without any violence or design of harm, the one touches the other gently, it will be no battery. 3. If any of them use violence against the other, to force his way in a rude inordinate manner, it is a battery; or any struggle about the passage, to that degree as may do hurt, is a battery. Elements needed for prima facie case of battery: A. An affirmative act 1. Must be voluntary B. Intent 1. Purpose/knowledge to cause harmful or offensive touching 2. Substantial certainty that harmful or offensive touching will occur C. Harmful or offensive touching 1. Objective: is the act harmful/offensive to a reasonable person? 2. Extreme sensitivities of the individual will not be considered unless the defendant knew of the sensitivities. 3. P does not have to be aware of the touching at the time it occurs. 4. Touching must be done with design of harm to be found rude, and therefore, a battery. (Wallace v. Rosen, 30) school fire drill 5. Touching must be with the individuals person (body) or any object that may be considered a natural extension of the individuals body (Fisher v Carrousel, 32) plate snatching D. Causation 1. P must prove that Ds voluntary act caused the harmful touching. Hypo: D intends to punch P desiring to cause pain. The blow causes permanent brain damage. Is D liable for the full extent of Ps injuries? Or is he just liable for the injuries a reasonable person would have expected? *D is liable for the full extent of Ps injuries because he had tortious intent. Restatement (2nd) 13: Battery: Harmful Contact An actor is subject to liability to another for battery if (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) a harmful contact with the person of the other directly or indirectly results III. Assault intentional causing of apprehension of imminent harmful or offensive touching

(I de S et Ux v. W de S, 37 axe) Assault Definitions: 1. an attempt to commit a battery 2. an offer to touch the person of another in a rude or angry manner Elements needed for a prima facie case of assault: A. A voluntary/affirmative overt act. 1. Words alone are not enough 2. Physical act alone is not enough 3. Words may undo act/conduct. B. Intent 1. Purpose/knowledge to cause harmful apprehension of harmful or offensive touching; OR 2. Substantial certainty that harmful apprehension of harmful or offensive touching will occur; OR 3. Transferred intent applies across torts (especially between battery and assault) and targets. C. Imminent Apprehension 1. P must have been aware and must have perceived Ds conduct (unlike battery) 2. The apprehension must be imminent; threat of future harm is not sufficient; does not have to be fear. 3. Ps apprehension must be reasonable (objective standard) (Western Union Telegraph Co. v Hill, 37) counter/clock A) Where Ds action reasonably causes P to apprehend imminent offensive touching, it is an assault even if D could not actually touch P if P reasonably believed that D was capable of touching her. D. Causation 1. P must prove that the Ds voluntary act caused the Ps apprehension Hypos: 1. D threatens to shoot P, pointing an unloaded gun. Is there a well-founded fear? a. Yes. 2. D, 100 yards from P, runs toward him throwing rocks. When does an assault occur? a. When P has fear and apprehension and D has apparent ability to hit P with rocks. 3. D (law prof) says, Ill knock your block off and shakes fist in Evander Holyfields face. Is this assault? a. There is apprehension of contact, but not necessarily of harm. Contact can be harmful OR offensive. 4. D points a gun at P about to shoot, but was captured just before he pulled the trigger. Is there an assault if P didnt know about it until after the capture? a. No. Must have apprehension. 5. D waves his fist and says Im going to clobber you right after our last class on Friday. Assault a. No. Must have apprehension of immediate contact. 6. D waves his fist and says If you werent a law student, Id knock you down. Assault? a. No, not a threat of immediate contact.

IV.

False Imprisonment direct and intentional restraint of the physical liberty of another through mental or physical boundaries without adequate legal justification. Must Prove: 1. Restraint 2. Against Ps will 3. Without legal authority Elements needed for a prima facie case of false imprisonment: A. Affirmative act or omission 1. Physical confinement actual confinement or restriction of mobility (Big Town Nursing Home v. Newman, 40) 2. Confinement through taking of a persons personal property without which s/he can not leave (i.e. purse) 3. Mental Confinement fear of harm forces the individual to remain within the limited space 4. Failure to provide means of egress. (Whittaker v. Sandford, 48)boat 1. Where one refuses to provide a means of escape from confinement under circumstances where there is a duty to do so, he is responsible in false imprisonment for the restraint of Ps liberty.

B. Intent 1. Purpose/knowledge to confine; or 2. Substantial certainty that that act will cause confinement; or 3. Transferred Intent applies across torts or targets. C. Confinement 1. Defendants act must confine Plaintiff to a limited space with defined boundaries. 2. No false imprisonment when an individual is prevented from entering an area or space (e.g. a building) D. Awareness 1. Plaintiff must be aware of his/her confinement at the time it is occurring. (Parvi v. City of Kinsington, 42) he was aware at the time, but not afterward E. No reasonable means of escape 1. There is no false imprisonment if a. There is a reasonable means of escape, and b. The plaintiff is aware of it at the time of confinement

F. Individual must be held against his/her free will (Hardy v. Labelles Distributing Co., 44) she willingly stayed
1. 2. 3. Mere obligation to stay is not sufficient Submission to stay due to persuasion of another is not sufficient. Implied threat of force is sufficient if you want to leave.

False Arrest arrest and custody by a person who claims, but does not have legal authority False arrest may lead to false imprisonment if other elements of the tort are satisfied (Enright v. Groves, 46) arrested her for failure to show license not dog leash violation o Held: Where a person is arrested for unlawful reasons, but is convicted of some other offense, the arrest is not privileged and false imprisonment will lie. No action if the person arrested actually committed the crime for which he/she is arrested. Note: False Imprisonment is not the ability to go where you want to go, but rather its the right to get out of where you dont want to be. Hypo: D, a diabetic, goes into an insulin coma. Hes picked up by police believing him to be drunk and held overnight in the drunk tank. His true condition is then discovered and he is taken to a hospital before regaining consciousness. False imprisonment? *No, person must be aware of false imprisonment and it must be against his will. V. Intentional Infliction of Emotional Distress the intentional or reckless infliction of severe mental and emotional distress through extreme and outrageous conduct (State Rubbish Collectors Assn v. Siliznoff, 50) Elements needed for a prima facie case of IIMD: A. extreme and outrageous conduct B. done intentionally or recklessly C. causing emotional distress D. distress must be severe E. (some jurisdictions require that results in a physical injury) F. Intent 1. Purpose/knowledge 2. Substantial certainty 3. Recklessness

G. Emotional Distress must be severe. (distress) 1. Plaintiff must show actual injury (Harris v. Jones, 57) 2. There must be a causal connection between the conduct and the emotional distress 3. Injury does not need to be physical.

Intentional Infliction of Emotional Distress on Third Parties: Defendant must be aware of the third partys presence Some jurisdictions require the third party to have suffered physical injury as well (Taylor v. Vallelunga, 64) daughter saw father being beaten Transferred Intent does not apply to IIMD because of the limitless liability. Cases: 1. State Rubbish Collectors v. Silliznoff- P can recover when P has serious mental distress resulting from Ds threat of future harm, even if there is no immediate threat, and even without physical consequences 2. Slocum v. Food Fair- a con-competitive public utility supports a right and correlative duty of courtesy rule 3. Objective standard- severe emotional distress to a person of ordinary sensibilities in the absence of special knowledge or notice. Ps sensitivity may be a factor in deciding, ex. pregnant woman Ps sensitivity will be taken into account if it is known to D. 4. Harris v. Jones-the emotional distress must be severe 5. Taylor v. Vallenluga- the third person cannot recover for IIED caused by Ds conduct if D is not aware of Ps presence and P did not suffer and physical harm RESTATEMENT 49 Liability for one who acts: Intentionally purposefully or knowledge with substantial certainty Commits conduct exceeding all bounds of civilized society. Causing severe emotional distress (e.g. heart attack) VI. Trespass to Land (Quare Clausum Fregit) intentional entry upon the land of another without permission Entry of an individual Causing the entry of another individual or an object; or Trespass may occur when one exceeds the scope of permission when staying on anothers land through: Exceeding period of permission Exceeding the purpose for which one is permitted to stay on the land Elements needed for a prima facie case of Trespass to Land: A. Voluntary Act 1. Entry upon the land of another 2. Causing another individual or an object to enter the land of another.

B. Intent (Dougherty v. Stepp, 66) stepped on the land, did no damage, but P can still recover
1. 2. 3. Purpose/knowledge to enter upon the land OR Substantial certainty that one will enter upon the land So long as one has the intent to enter, it is not necessary that one have the intent to enter upon the land of another.

C. Damages 1. No actual damages are required for physical entry 2. The entry must be unauthorized. 3. Air space- you own everything above and below your property but today most courts will only find trespass if it interferes with the use and enjoyment of the property. Scope of Land:

Old Common Law: all the space above and below the land Modern Law: Space above and below the land of which the possessor could make reasonable use.

VII.

Trespass to Chattel (De Bonis Asporatis) intentional interference with a rightful owners/possessors use or possession of chattel Elements needed for a prima facie case of Trespass to Chattel: A. Intent 1. Purpose/knowledge 2. Substantial certainty

B. Mistake does not vitiate intent. (Act) 1. Actual damage must be suffered by the owner/possessor of chattel (unlike trespass to land). (Glidden v. Szybiak, 75) Harmless intermeddling with a chattel, that does not impair its value or deprive the owner of possession, is not trespass to chattel. C. General Rule of Trespass DBA (intentional) a. One who uses are intermeddles with a chattel is liable for trespass if (either one of the following) 1. he dispossess the other of the chattel 2. the chattel is impaired as to condition, quality, or value 3. the possessor is deprived of its use for a substantial time 4. bodily harm is caused to the possessor or to some person or thing the possessor has a legally protected interest in D. Differnce between trespass qct (land) and trespass dba (chattel) a. QTF- no actual damage is necessary b. DBA- need damages either to chattel, use of it, or the possessor and related PRIVILEGES **Defenses to the intentional torts I. Consent A. Effect of Consent Defendant who has committed an intentional tort may prevent liability by proving that the plaintiff consented to the defendants conduct B. Types of Consent 1. Express Consent- if P expressly consents to an intentional interference with his person or property, D is not liable for that interference 2. Implied Consent a. Implied through plaintiffs conduct b. Reasonable person standard: would a person in the defendants position believe that the plaintiff consented (OBrien v. Cunard S.S., 91) what is in the persons mind doesnt matter i. Where Ps conduct indicates permission to make contact even if, subjectively, she does not give permission the privilege of consent is established. C. Scope of Consent 1. Defendant must stay within the scope of consent (Mohr v. Williams, 94) had permission to operate on right ear and instead operated on left 2. Scope of consent may be determined based on custom and circumstances of the case (Hackbart v. Cincinnati Bengals, 92)blow outside the customs of the sport D. Fraud or Mistake in Obtaining Consent 1. Plaintiffs consent must be knowing and voluntary 2. Consent obtained through fraud in ineffective (DeMay v. Roberts, 99) guy came in while she was in labor and held her hand and she was under the impression he was a doctor 3. Where consent it given under a mistake of fact, it is invalid if the D knew or should have known of Ps mistake. E. Informed Consent 1. Requires doctor to disclose to the patient the risks of the proposed medical or surgical treatment. Failing to do so, Doctor may be liable when injuries result from the treatment

F. Consent of Criminal Acts (like consenting to fight in an illegal prize fight) 1. Majority of Jurisdictions: consent to a criminal act is invalid. 2. Minority of Jurisdictions: consent to a criminal act is valid even if it involves a breach of peace
G. MD can act in the absence of express consent under the following circumstances: 1. patient unable to give consent (unconscious, intoxicate, mentally ill, incompetent) 2. there is a risk of serious bodily harm if treatment is delayed 3. a reasonable person would consent to treatment under the circumstances H. Restatement 892c- if a statute protects a class of persons of which P is a member, then Ps consent (violating the statute) will NOT be valid

II.

Self-Defense A. Rule Every individual is privileged to use reasonable force to defend against threatened battery by another. 1. Good faith belief: individual must reasonably believe that use of force is necessary to protect against the threat of harm. 2. Mistake does not vitiate the defense unless it is unreasonable. B. Threat of harm must be imminent. 1. Harm must be occurring or about to occur. 2. No self-defense is allowed for harm or battery which has occurred in the past 1. Once the aggressor has retreated and threat of harm is no longer imminent, the privilege terminates. C. Self-defense does not allow for retaliation D. Provocations 1. Verbal threats alone DO NOT justify the use of self-defense 2. Provocations must be accompanied by threat of physical force. E. Amount of force allowed under self-defense is that which is reasonably necessary to protect against harm (this includes force which may cause serious bodily harm or death). F. Retreat 1. Minority: Before using force, party must retreat if he/she can do so. 2. Majority: An individual does not have the duty to retreat. G. Injury to a third party- D defending himself against A shoots B instead. D is not liable to B in the absence of some negligence toward him.

III.

Defense of Others A. Rule a person may use reasonable force to protect others against imminent threat of harm. B. Intervenor must use reasonable force E. Effect of Mistake 1. Majority: privilege only applies where the third party himself would be allowed to use self-defense (if the intervenor is mistaken, he/she is liable in battery even if the mistake was reasonable.) 2. Large minority: privilege to defend a third party applies so long as the intervenor reasonably believes that force is necessary (reasonable mistakes do not vitiate the privilege)

IV.

Defense of Property A. Rule a person is privileged to use reasonable force to protect personal or real property. B. Reasonable force does not include deadly force or force which causes serious bodily harm (Katko v. Briney, 107) spring gun to protect property F. One may only use deadly force to protect ones own personal safety or that of others in the property. Necessity A. Public Necessity 1. An individual who destroys another partys property in good faith and under actual or apparent necessity of preventing further harm to the community, is not personally liable in an action by the owner of the property destroyed. (Surocco v. Geary, 118) 2. The privilege of necessity allows an individual to harm an innocent partys property due to exigent circumstances in order to prevent greater harm to the community. B. Private Necessity -

V.

1.

An individual who damages the property of another as a result of private necessity is liable for the damage to that individuals property. (Vincent v. Lake Erie Transp. Co., 121)

Does a reasonable mistake justify force? For self-defense, yes (J/D) .note 3, p.102 For public safety, yes (J/D) note 3, p.109 For private necessity, no (J/P)

Privileges and Mistakes: 1. If D reasonably believes he must use force to protect himself from P, but it mistaken, is D entitled to the privilege of selfdefense? If it is reasonable, then yes. (see note 3, p.104) 2. If D reasonably believes he must use force to protect others from P, but is mistaken, is D entitled to the privilege of protection of others? D would not be privileged to protect others in the same way he is privileged to protect himself. (note 2, p.106) 3. If D reasonably believes he must use force to protect the public interest, but is mistaken, is D entitled to the privilege of public necessity? Yes, anytime D reasonably believes it is necessary. 4. If a D reasonably believes that property he destroys is his own (or has no owner), but is mistaken, will a court find him not liable for lack of tortious intent? p.24 case about mistaking dog for wolf no privilege *mistake as to protection of self, public, others is ok mistake as to property not privileged. NEGLIGENCE Negligence conduct that falls below the standard of care established by law for protection of others against the unreasonable risk of harm. 1. ELEMENTS OF CAUSE OF ACTION a. Duty to use reasonable care b. Breach of that duty c. Causation- a reasonably close causal connection between the conduct and the resulting injury. Two elements: i. Causation in fact ii. Proximate Cause d. Damages (injury) resulting to the interests of another i. Cant get nominal damages in negligence cases must be actual injury/hurt done A NEGLIGENCE FORMULA a. Three variables in determining negligence i. The probability of injury (P) ii. Gravity of the resulting injury (L) iii. Burden of adequate precautions (B) b. If B is less than PxL, then Bs side is negligent- this is very useful in determining the chief factors, but they are nonquantifiable variables (GeeYem- car safety device, cannot use B v. PL to determine economic factors) c. How to determine negligence when social utility and risk of danger are involved. Balance the following: i. The character and location of the premises ii. The purpose for usage iii. Probability of injury iv. Precautions necessary to reduce the risk of injury, and v. The relations between the precautions and their effects on the beneficial use of the premises d. The degree of care demanded of a person by occasion is based on i. The likelihood that his conduct will injure others ii. The seriousness of the injury if it happens iii. And the interest which he must sacrifice to avoid the risk e. Restatement 291- Unreasonableness.the risk is unreasonableif the risk is of such magnitude as to outweigh what the law regards as the utility of the act or the particular manner in which it is done. f. Restatement 292- Factors in determining utility: a. social value of the interest advanced by the conduct b. extent of chance this interest is advanced by the conduct c. extent of chance that interest can be advanced by another and less dangerous conduct g. 293 Factors in determining magnitude of risk: a. social value of interest imperiled

2.

b. c. d. h.

extent of chance that conduct will invade interest of another extent of harm likely to be caused number of persons whose interests are likely to be invaded

Cases

i. Lubitz v. Wells (133)- a person must be reasonably aware of the risks of his actions before he can be held
negligent

ii. Blyth v. Birmingham Waterworks Co. (134)- A person is not negligent if his conduct conforms to that of RRP
Where a person has acted reasonably with regard to ordinary circumstances, it is not negligence to fail to anticipate unprecedented circumstances. iii. Gulf Refining Co. v. Williams (135)- a person can be held liable if his conduct creates a risk of harm that is highly unlikely 1. It is negligence to fail to avoid a risk of some real likelihood and of such appreciable weight and moment as to induce a RPP to avoid it even if the risk is not more likely than not to occur. iv. Chicago, B. & Q.R. Co v. Krayenbuhl (138)- reasonable precautions so that the risk of injury does not outweigh the benefit of the equipment 1. Where a dangerous machine/activity can be made safe with an inexpensive device, it is negligent to fail to use the device when the reduction in public benefit for the machine is outweighed by the increase in safety. v. Davison v. Snohomish County (139) - There is a duty to provide reasonable safeguards, but no duty beyond that. vi. United States v. Carroll Towing Co. (141) Where the probability of accidental damage and the gravity of that damage outweigh the burden of taking steps to avoid damage, there is negligence. 1. if B>PL, then no negligence 2. if B<PL, then negligence STANDARD OF CARE a. The Reasonable Prudent person i. Definition- the typical standard of care to determine negligence is that of a reasonably prudent person in similar circumstances 1. judgment of an individual- variety of standard 2. judgment of the jury- still variety of standard, but its RPP standard (jury NOT asked what they themselves would do under similar circumstances, but what RPP would do) ii. Summary of Duty- to act as a RPP under the same circumstances 1. the same circumstances include: a. the actors superior knowledge if an actor has superior knowledge, he is held to an even higher standard than RPP b. an emergency not of the actors own making or not when the emergency could have been anticipated (Cordas cab - 154) i. Where D is suddenly confronted with an emergency not of his own making, he is not required to exercise mature judgment that is, more risk allowed to be taken. ii. What do you get from emergency doctrine that you dont get from reasonable standard of care? 1. Emergency was not of persons making and was not reasonably foreseeable. 2. Emergency doctrine takes into account that person has to make sudden decision. 3. Get additional caution to jury that because there is emergency not of Ds creation (and that he did not anticipate), then hes not required to use calm, mature judgment that would normally be required. This is not an automatic defense for D, though. 4. D must give evidence of emergency and then gets judge to give instructions to jury that this was emergency situation and they dont have to be as hard on him (though they can still decide that D did not act reasonably even under the emergency). c. an actors physical characteristics (Roberts blind man - 157) i. Where a person has limited physical abilities, she must act reasonably in light of all the circumstances, including her physical limitations. d. the actors age, if a child (unless adult activities, or inherently dangerous operation, Robinson snowmobile - 161) 2. The same circumstances DO NOT include: 1.

3.

a. The actors ability to make good judgment (Vaughan v Menlove HAYSTACKER - 145) b. The actors inferior knowledge (Delair tire blow up - 148)
i. Where a reasonable inspection would show a dangerous condition, it is reasonable to recognize that and not take the risk. c. The actors mental illness/sudden insane delusion (Breunig p.165 religious delusion/Batman) i. While Ds pre-existing mental illness will not be considered in determining whether D acted reasonably, the sudden onset of a mental incapacity that occurs without forewarning will be considered in deciding whether D acted reasonably under all the circumstances. 1. This is a minority holding. Most courts would rule that mental illness is no defense. 3. Why distinguish Physical Characteristics and Mental Illness? a. Physical Characteristic- b/c disabled people are entitled to live in the world to have allowance made by others for his disability, and he cannot be required to do the impossible by trying to conform to standards he cannot meet. Ex. intoxication and drug use b. Subjective Judgment- people have different judgment and different levels of intelligence. It is difficult to decide what we can do mentally and no one can read someones mind c. Insanity- is a defense to negligent conduct when D had no prior warning and knowledge of his insanity. Reasons why an insane person can be held liable for tort: i. Where one of two innocent persons must suffer a loss it should be borne by the one who occasioned it ii. To induce those interested in the estate of the insane person to restrain and control him iii. The fear of an insanity defense would lead to false claims of insanity to avoid liability d. Custom- not conclusive- evidence of custom, common usage and practice, cannot be used as the conclusive test of the conduct of a RPP (Trimarco 150- shower glass) i. Custom is admissible to show what a RPP would do and its violation makes a prima facie case of negligence (but is not conclusive) ii. Custom does not always go along with RPP. RPP is a societal standard and when you fall below it you are negligent iii. Custom does not equal due care, but it is evidence of due care THE PROFESSIONAL i. Objective standard of due care for professionals- one who engages in a business, occupation or profession must exercise the requisite degree of learning, skill and ability of that calling with reasonable and ordinary care 1. ordinary not average care- average is incorrect b/c this means that of the members could not meet the standard and are negligent (Heath air plane pilot p.168) ii. Standard for specialist- standard is modified for a specialist b/c they hold themselves out to have higher skills (ex. specialist in obstetrics) iii. Standard for an Attorney1. three elements: a. possession of requisite degree of knowledge or skill- professionals are not expected to know everything, just what the ordinary member of the profession knows (Hodges attorney didnt file before statute of limitation - 173) b. exercise good faith best judgment- not RPP standard but do the best standard. Exercise of a discerning judgment in the exercise of a reasonable discretion. Standard of best judgment for an attorney is his own best judgment c. use of reasonable and ordinary care, diligence 2. How can P prove DBCI- client must show that but for the attorneys negligence, P would have won the case. P also must show that the attorney caused the actual damage to P. 3. How to challenge bad judgment- attorney is liable if he puts his self-interest before the clients interest 4. Hypos: a. Suppose a tort Ps lawyer failed to file the complaint until after the applicable statute of limitations had expired. What violation of lawyers standard of care? i. Violation of care and diligence in not pursuing case before statute of limitations expired (failure to calendar)

b.

10

b. Suppose a criminal defense lawyer advised her client not to testify on his own behalf. After
conviction, a juror told the press: We knew he did it because he didnt deny it. i. Judgment decision P would accuse lawyer of not using best judgment. ii. Lawyer must use best judgment that an ordinary lawyer would use and his own idea of best judgment. c. Suppose a husbands divorce lawyer failed to claim the value of future royalties on the wifes past publications because he didnt know they were community property. If lawyer didnt know, what violation? i. Learning, skill, and ability. iv. Standard of Care for Physicians 1. Elements a. Possess the skill and learning of the ordinary M.D. in the community b. Apply that sill and learning with ordinary and reasonable care i. This care is the customary care ii. The risk that a doctor needs to disclose to patient is not customary risk (Boyce 177 - ankle pins) 2. How to prove DBCI- P must prove the standard of care in the medical community and that Ds conduct departed from this standard a. Expert Testimony- proof that a professional violated the standard of care usually must be established by expert testimony, unless the negligence is so obvious that it is within the common knowledge and experience of lay jurors b. In other situations custom is never conclusive, but in medical cases, what is customarily done by doctors is that standard of care 3. Locality Rule v. Similar Community in Similar Circumstances v. National Standard a. Locality rule- traditionally strict locality rule the conduct of the members of the medical profession is the be measure only by the standard of conduct expected of the other members of the medical profession in the same locality or in the same community i. Bad part- reinforces the status quo of care in any given community, its a disincentive for elevation of the standard ii. Good part- protect rural doctors, who due to inadequate training and experience, and lack of transportation would not exhibit the care of doctors in urban areas. This is becoming less of a worry b/c of improvements in transportation and communication b. Similar Community in Similar Circumstances (Majority Rule)- reasons: i. Differences between rural and urban areas still exist. Learning level and expertise in a small city still is not the same as in a big city ii. Why not the same community then? Physicians working in the same community would be unwilling to testify against each other c. National Standard- most jurisdictions hold that at least as to board certified physicians, hospitals, medical labs, and other health care providers, the standard is the be measured by the national standard (Morrison v. MacNamara - 181) 4. Informed Consent- not customary risk standard. A physician must inform the patient all of the material risks and alternatives of the treatment a. Consent to medical treatment must be based on patients understanding of the treatment, available alternatives, and collateral risks of the treatment (Moore - 191, doctor had a personal interest in the patients leukemia) i. If doing nothing is one of the alternatives, physicians should disclose that ii. Physician is liable for failing to inform patient of possible psychological risks of the procedure iii. A physician has a duty to disclose possible conflicts of interest in seeking Ps consent to medical treatment. b. How to Prove Negligence: P must prove i. M.D. did not inform P of a material risk (the risk that was likely to affect the decision of P)(breach of duty) 1. P would not have given consent if informed (this choice can allow hindsight) or (causation) 2. a reasonable person would not have given consent if informed (majority rule) ii. the undisclosed risk resulted in injury to P (injury)

11

iii. courts usu adopt ii (1) rather than (2) b/c physician cannot substitute the judgment or
c. wished and self-decision of the specific patient (Scott 185 - hysterectomy case) Affirmative Defense- D will not be liable if he proves either one of the following i. The undisclosed risk is common knowledge or ii. Actually known by P or iii. Disclosure would be detrimental to Ps well being or iv. Emergency required immediate procedure and P is incapacitated Malpractice under informed consent must prove: i. Doc failed to inform P adequately of a material risk before securing his consent to the proposed treatment ii. If P had been informed of the risks he would not have consented to the treatment iii. The adverse consequences that were not made known did in fact occur and he was injured as a result of submitting to the treatment

d.

c.

Aggravated Negligence i. Degrees of care- as the danger increases, the actor is required to exercise caution commensurate with it, and so to be more careful 1. the person dealing with special danger must exercise the highest degree of care or the utmost caution characteristic of very careful prudent persons ii. Degrees of Negligence1. slight negligence- failure to use great care 2. ordinary negligence- failure to use reasonable care 3. gross negligence- failure to exercise even slight care iii. Willful, Wanton, and Reckless Conduct- deliberate and conscious disregard for a known high degree of probability of harm to another. This level is the threshold for punitives iv. Guest Passenger Statutes 1. all guest passenger statutes said that if a driver carries a non-paying passenger, then hes not liable for what happens, unless its something egregious. 2. Standard of care for a driver when guest rule applies- much less than RPP standard, but willful or wanton in order to be liable 3. Reasons for the Adoption of the Guest Passenger Statute a. avoid collusion against drivers insurance co. b. limited insurance funds should go to pedestrians or passengers in other cars in preference to a negligent drivers guest c. save fuel by encouraging car pooling 4. When is a driver liable to guest passengers? a. willful and wanton misconduct (Illinois) b. intoxication or willful misconduct (California) 5. Is a passenger who temporarily exits the vehicle still a guest? a. Illinios (Talios v. Talios) YES b. California (Boyd v. Cress) - NO 6. Courts have different attitudes toward the rule, therefore they apply the rule differently a. intent of the legislature- the relation of host and guest between automobile owner and passenger w/o payment of compensation begins when the guest attempts to enter the car, and ends only when the passenger safely alights at the end of the ride b. court does not like the guest rule, and try to apply RPP, they try to find loopholes

Trustees of Trinity College????? 4. RULES OF LAW a. Casei. Pokora v. Wabash (200)- when there is not a guide of customary conduct, and where ordinary safeguards have failed it is up to the jury to decide ii. Tallios guest statutes begins upon entry of the car and ends upon reaching the final destination and the status is not terminated due to stops made along the way iii. Boyd v. Cress- Being in or upon the vehicle is a necessary element of the ride to establish guest status iv. The guest statute has been moved away from and most states now go with negligence across the board v. Dram Shop Acts VIOLATION OF STATUTE a. Applicability of Statute-

5.

12

b.

i. a statute that imposes criminal or regulatory duty (but does not provide explicitly for tort liability) will be used in place of the RPP if the JUDGE decides that the statute: 1. Protects a class of individuals of which P is a member, and 2. Protects against harm of the sort that P suffered, and 3. Is an appropriate standard for use in tort cases a. guides to determine appropriateness: i. compare common law duty (Does statute clarify existing duty or create a new duty?) ii. legislative determination that compliance is desirable iii. Does penal statute give notice to public? iv. Does statute create liability without fault? v. Disproportionate liability (compared to seriousness of offense) vi. Does injury result directly or indirectly from violation? ii. Cases: 1. Osborne (poison - 204)- class to be protected was those who could read the label a. Violation of a statute imposing a specific duty is negligence per se if: i. The P is one of those for whose protection or benefit the duty was imposed, and ii. the plaintiffs injury is of the character that the state was designed to prevent. 2. Stachniewicz v. Mar-Cam Corp. (206) court must decide either to adopt statutory standard of care in place of RPP standard or not. 3. Perry (215)- whenever we use the statute in place of RPP, we are looking for the statute to clarify the duty required Effect of Statute i. When the judge decides to substitute a statute for RPP, an unexcused violation of the statute either: 1. is negligence per se- conclusive evidence of breach of duty that the judge will instruct the jury they must find- this is the majority and restatement position, or 2. creates a presumption of negligence- that the jury cannot disregard, or 3. is some evidence of negligence that the jury may take as strongly or lightly as it sees fit- very small minority of jurisdictions ii. Reasons the court would adopt the above: 1. negligence per se- w/o regarding any excuse of justification. Its a strict liability which does not take into consideration the circumstances 2. rebuttable presumption of negligence- a particular set of facts established only a prime facie case of negligence, a presumption which may be rebutted by positive evidence of reasonable excuse or justification. The general rule is that the evidence required to rebut should be positive, unequivocal, strong, and credible. 3. Merely evidence of negligence- allowing the jury to find whether the person who violated the statute did indeed fall below the acceptable standard of care iii. Restatement sets forth five valid excuses which the JUDGE may decide are permissible: 1. actors incapacity 2. D does not and should not know of occasion for compliance 3. D is unable after due diligence to comply 4. emergency not due to Ds misconduct 5. compliance creates a greater risk than the violation iv. Hypos matching the excuses 1. child, very young, crosses a street in the middle of the block 2. driver concealed from view, no warning sign, not familiar with the area across intersection 3. driver at night tail light went off 4. driver at night tail light went off, then carefully drive to the nearest station (depends on circumstances) 5. driver on the left side of the road avoiding hitting a child (also emergency) v. Ds violation of a statute imposing a specific duty is negligence per se if: 1. Class to be protected 2. Harm to be prevented 3. Statutory standard is appropriate vi. General rule- license violations are not negligence per se b/c you have to prove RPP anyways vii. Cases1. Martin (222)- there must be a causal relationship between the negligence and the injuries a. 3 choices unexcused violation of statute: i. Is negligence per se (this was picked in Martin case) ii. Creates a presumption of negligence, rebuttable only by proof of an excuse

13

iii. Is some evidence of negligence which a jury may accept or reject as it sees fit.

2. Zeni (224)- walking on the sidewalk posed a risk so she violated it and this was an excuse, but the
6. statute can still be used as evidence PROOF OF NEGLIGENCE a. Court and Jury: Circumstantial Evidence i. P bears 3 burdens: 1. Burden of Pleading- P must allege the fact to constitute a claim against D (success- go to trial, failuredismiss) 2. Burden of Production (burden of going forward)- P must have evidence that makes it reasonable for a jury to find that, more likely than not, D breached a duty that caused P injury ( success- go to jury prima facie case, failure- directed verdict for D) 3. Burden of Persuasion- P must persuade the jury that, more likely than not, D breached duty (that caused Ps injury) (success- jury favor P, failure- Jury favor D) ii. More likely than not = P does not need to eliminate all other possible causes or inferences. All P needs to show is evidence from which a reasonable person could say that on the whole it is MLTN that there is negligence iii. P must identify D- P needs to eliminate all other possible Ds 1. negligence is not in the air iv. Effect of Rebutting: 1. generally burden of proof not on D. He may not be required to introduce any evidence at all or if he does all the evidence has to do is show that is was probable that he was not negligent 2. If D moves for DV, he must show: a. Occurrence was caused by some outside agency over which D had no control; or b. A kind which commonly occurs without negligence of anyone, or c. It could not have been avoided by exercise of all reasonable care 3. constructive notice- the notice which is presumed by law to have been acquired v. Banana Cases Circumstantial Evidence 1. Goddard (229)- P must provide enough evidence from which the jurors would infer that D was negligent and that the negligence caused the injury (fails to meet burden of production) 2. Anjou (230)- must show more likely than not that the peel had been lying thereconstructive notice, inference arising from condition of banana skin (meets burden of production) 3. Joye (231) - where there is no direct evidence, circumstantial evidence may be used to prove negligence, but it isnt reasonable in this case that juries infer from the color of the skin alone. 4. Ortega (231) -spilled milkevidence presented shows that the storeowner may not have shown due care. 5. Jasko (233) - no notice necessary when the dangerous condition is continuous or easily foreseeable 6. H.E. Butt Groc. Co. v. Resendez (234) P has the burden of proof to show one of these situations: a. D had actual or constructive knowledge of a condition on the premises. b. The condition posed an unreasonable risk of harm. c. D did not exercise reasonable care to reduce or to eliminate the risk. d. Ds failure to use such care proximately caused Ps injuries. b. Res Ipsa Loquitur (RIL) the thing speaks for itself i. In some circumstances the mere fact of an accidents occurrence raises an inference of negligence so as to establish a prima facie case: 1. the thing is under exclusive management of D 2. in the ordinary course of events, the accident does not happen w/o negligence 3. the occurrence was not due to contribution or voluntary action by P 4. (some courts, this facto is not controlling) evidence as to the true explanation of the event must be more readily accessible to D than P ii. Possible procedural effects of RIL (judge can chose which to adopt) 1. inference (permissible, not mandatory) (majority adopts this and leaves final decision to jury) 2. presumption (requiring J/P if no rebuttal) 3. presumption w/ultimate burden shift to D iii. After P puts on RIL, D can: 1. put on no evidence (if adopt inference, jury decides who wins; if adopt presumption J/P) 2. put on evidence of due care (if adopt inference, jury decide; if adopt presumption, jury decide) jury doesnt have to believe D 3. D puts on evidence of alternative negligence (same as 2) iv. Ways in Which P Can Carry Burden of Production:

14

v.

vi.

vii. viii.

Direct Evidence (testimony, physical evidence, photos) that D breached the duty of care by acting unreasonably. 2. Circumstantial Evidence when Ps circumstantial evidence consists of the fact that an accident happened under circumstances where accidents dont usually happen without negligence by persons Mutiple Ds 1. general rule- unless there is vicarious liability or shared control, P does not make out a preponderant case against either D by merely showing that P has been injured by one or the other (car crash- neither driver is in exclusive control) a. exception- hospital- doctors dont want to tell on each other and it wouldnt be fair to patient not to allow some recovery, there is also a special relationship doctor/patient Ybarra v. Spangard (242) Cases 1. Bryne (237)- flour the fact that it happened proves negligence a. Common knowledge based on past experience is sufficient to allow the jury to conclude that this accident wouldnt happen ordinarily without negligence. 2. McDougald (240)- spare tire D does not have to eliminate all other possible causes just show MLTN D was negligent 3. Larson v. Hotel (246)- Ps injury could be attributed to something that was not under exclusive control of the hotel 4. Sullivan (254)- truck driver swerved D only offered possible evidence of other causes, they must be probable a. In a proper RIL case, where D offers only evidence of other possible causes, an inference of negligence arises which the jury may or may not find to be more probable than not. Reasons for the Rule of RIL: 1. Force D to come forward with evidence known only to D. 2. Logic if both elements are present, it follows that there is a reasonable inference of Ds negligence. Malpractice 1. expert witness- not usually willing to testify against each other and may handicap P 2. Common knowledge- ex. leaving a sponge inside someone

1.

Chart of Differences in Procedural Effect Rules for RIL Cases If P presents a RIL case (both elements are present) And D puts on: Inference Presumption Presumption + Burden Shift No Evidence Jury DV/P DV/P Evidence of Due Care Jury Jury Jury Other Possible Causes Jury Jury Jury When jury is undecided because its equally probable one way or the other, then party with burden loses. Focus on burden of production in RIL case it gets P to the jury RIL is a form of evidence (circumstantial) Jury can draw inference or choose not to. RIL gets P past DV and the case will go to the jury (prima facie) CAUSATION IN FACT

1. SINE QUA NON- that w/o which the thing cannot be

a. Single cause But for test of one or more others would have been sufficient to produce the same result Directed Verdict Test i. Taking the evidence most favorably for the non-moving party, could reasonable minds differ as to_____(cause)? ii. If yes, DV is denied iii. If no, DV is granted Cases i. Perkins (259)- train hits car - substantial factor test the train was speeding but it was not the cause in fact, the driver was negligent by driving onto the track ii. Reynolds v. Texas & Pac. Ry. Co. (262) D had no handrail; P fell. Cause?

b. More than one D - use Substantial Factor formula- but for test will allow each D to escape responsibility b/c the conduct
c.

d.

15

1.

Where Ds breach of duty a. Greatly multiplies the chance of injury to P, and b. Is of a character naturally leading to this type of injury, c. Then the possibility that the accident might have happened anyway does not prevent a finding of cause in fact.

2.

3.

4.

PROOF OF CAUSATION a. Arguments that there is cause in fact i. Common knowledge 1. greatly multiplies the chance of injury to P, and 2. is of a character naturally leading to this type of injury, 3. then the possibility that the accident might have happened anyway does not prevent a finding of cause in fact ii. Loss of chance fact pattern- allows P to recover in a medical malpractice case even though P could not prove MLTN, otherwise doctor would have no reason to use due care. iii. Fact pattern for products liability cases- when there is no proof as to which product injured P through no fault of P, then the burden of proof of causation shifts to D. If the burden is not met, factfinder can make an allocation of responsibility among all Ds (% of damages compared to % of market) rather than denying P recovery Daubert v. Merrel Dow iv. Cases 1. Gentry (263)- (rifle trip over steps) where P proves only the possibility that Ds negligence was a cause in fact, there is insufficient proof as a matter of law 2. Reynolds (262)- (fall down stairs)where the negligence of D multiples Ps chance of accident, and the accident is of the character naturally occurring from that negligence, the possibility that it could have happened regardless of the negligence does not prevent a finding of cause in fact 3. Kramer (267)- (cancer where cut)- there is only a possibility and there must be probability a. Where P proves only the possibility that Ds negligence was a cause-in-fact, there is insufficient proof as a matter of law. CONCURRENT CAUSES a. Either of the two causes, without the other, might not have injured P. Each D is liable (Hill v. Edmonds, 282) i. Where separate acts of negligence combine to produce a single injury, each D is liable for the entire result even though his act alone might not have caused it. b. Either of the two causes, without the other, would have injured P. Each D is liable for the entire result even though the other act alone would have caused it, so long as each D is a substantial factor (twin fires Anderson, 283) c. Joint and Several Liability i. When 2 or more Ds are held jointly and severally liable, P may execute the judgment against any one D for the entire amount of the injury. ii. A jointly and severally liable D who pays the judgment is entitled to contribution (partial reimbursement) from the other jointly and severally liable D. PROBLEMS IN DETERMINING WHICH PARTY CAUSED THE HARM a. Ps injury might have been caused by either of the 2 negligent actors, each breaching a duty to P, neither responsible for the acts of the other, and Ps injury was certainly cased by one of the acts and certainly not caused by both of the acts together. Burden shifts to D to prove his action did not cause it otherwise both are liable (shotgun Summers v. Tice, 285) b. Reasons for this: i. Negligent D/ innocent P ii. P would be remediless otherwise iii. Ds responsible for lack of proof iv. Cost spreading v. Incentive for safety vi. Each Ds liability = culpability c. Sindell v. Abbott Labs (287) DES case i. Where Ds made a substantial share of the market of a fungible product, and 1. P has no proof of which product injured her through no fault of hers, then 2. the burden of proof of causation shifts to D. 3. If burden not met, each D is liable for a % of the damages equal to that Ds % of the market. a. This is market share liability. b. Traditional rule of causation would let all Ds off. d. Hypo: P pedestrian is injured in a 2 car intersection collision; the cars enter the intersection at right angles under a working stoplight; both drivers dead; no witnesses, and P did not see which car ran the red light; each D moves for DV. What result?

16

1. Must be proved that each D was negligent first. ii. What if all parties live to testify and both drivers say the other ran the red light? Same result? 1. With testimony, this will be a jury question. PROXIMATE OR LEGAL CAUSE 3 Types of Cases in Which Court May hold No Proximate Cause: 1. Unforeseeable Consequences 2. Intervening Acts 3. Public Policy *If no proximate causation, then no liability! Proximate Cause Cases: 1. A separate causation argument by D that, 2. even though Ds negligence was a cause in fact of Ps injury, 3. liability should not be imposed. Rhetoric of Proximate Cause: 1. No liability for remote results (but proximate results are within Ds liability. 2. No liability except for natural and ordinary results (unnatural or extraordinary results are not within Ds liability. 3. No liability for unforeseeable results (D is liable for foreseeable results). No Proximate Cause: 1. UNFORESEEABLE CONSEQUENCES a. Proximate cause cases- a separate causation argument by D that, even though Ds negligence was a cause in fact of Ps injury, liability should not be imposed. b. Rhetoric of proximate cause i. No liability for remote results ii. No liability except for the natural and ordinary results c. Thin Skull Rule- D takes P as D finds him. i. D is liable for direct result of his negligence including the aggravation of a pre-existing physical or psychiatric condition 1. or physical infirmities or psychiatric are foreseeable as a matter of law 2. or unforeseeable consequences of a physical injury to the person are proximate ii. McCahill (handout)- even though P had DT, D is still liable for worsening the condition iii. Bartolone v. Jeckovich (292) Where Ds negligence is an in-fact cause of aggravation of a pre-existing mental condition, D is liable for the direct consequences that his negligent act set in motion. d. Weakened Condition- second injury caused by weakened condition resulting from first injury i. The first D is liable for the second injury ii. Second breaking of a limb that had not fully recovered from its original strength, D is liable iii. Factors affecting the holding- time between the accidents, location and nature of the second injury, reasonableness of Ps conduct and the character of the second injury e. Unforeseeable Distance- Ryan v. N.Y. R.R (294) D spreading fire- D is only liable for the natural and ordinary results of his negligence. i. If D negligently causes a fire, he is liable only for the first property burned (where fire started); i.e. the second property burning is not an ordinary, usual, and expected result of Ds negligence, and the damages of P are a remote result ii. Reasons: 1. No prudence could guard against the liability 2. Liability too great for a private fortune 3. D cannot insure Ps property 4. Liability would destroy the sense of community 5. P can insure to obtain security 6. Too much punishment 7. Subrogation of insurance carriers f. Direct Causation Rule- the unforeseeable nature (type, extent, or manner) of Ps damage is not a defense, so long as i. Some damage is foreseeable, and ii. The actual damage is directly caused by Ds act (not due to independent causes)- has disproportional problem (Polemis, 300) g. Under Polemis is any foreseeability required?

17

h.

i.

j.

i. Extent of damages- no ii. Type of damages- no iii. Manner of occurrence- no iv. Some injury- yes Wagon Mound 1 (302)- D is responsible only for the consequences that are reasonably foreseeable i. Two Exceptions: 1. Thin Skull Rule worsened physical injury need not be foreseeable 2. Manner of Occurrence need not be foreseeable, so long as result is Wagon Mound 2 (306) - D is liable only for consequences that are reasonably foreseeable; a determination of reasonably foreseeability involves an assessment of both the risk and the utility of incurring it (B v. PL) Foreseeable limit to liability i. A negligent D is liable only for those risks that it is negligent to take. Hypo: B negligently discharges oil; fire is a slight possibility; some small direct damages to A, but no direct damage to C; fire damage to A & C Polemis WM #1 WM#2 A (Morts Dock) J/P J/D J/P

2.

C (2 ships) J/D J/D J/P k. Unforeseeable Plaintiffs- Palsgraf (308)- fireworks explosion i. Majority- the duty of care is owed only to those who are within the range or reasonable apprehension of harm (zone of danger) ii. Minority- duty is owed to the public, liability is limited to damages proximately caused by Ds breach. Proximate cause is determined by: 1. natural and continuous in sequence? 2. substantial factor? 3. direct connection w/o too many intervening causes? 4. foreseeable result? (usual judgment of mankind) 5. too remote in time or space? l. Yun v. Ford Motor Co. (319) Where concurrent forces are involved and the manner or type of harm caused is unexpected and, in hindsight, highly extraordinary, then reasonable minds cannot differ that the intervening acts are superseding as a matter of law. INTERVENING CAUSES a. Same Hazard- Derdiarian (driving seizure)- where the risk that the intervening act will take place is the very same risk that makes Ds action unreasonable, the intervening act is NOT superseding. i. P says (Pro-P) D says (Pro-D) Proximate Remote Merely intervening Superceding Foreseeable Unforeseeable Normal Abnormal Ordinary Extraordinary Dependent Independent ii. Rather than foreseeable v. unforeseeable and ordinary v. extraordinary, ask: 1. independent v. dependent? 2. the same hazard? 3. injuries of same kind as foreseen? 4. different manner of occurrence? b. Suicide Fuller v. Preis (335) Does Ps suicide break the chain of causation? i. To show suicide as a superseding cause, P must prove but-for and proximate cause at trial 1. Where there is not an independent action/decision by P, he can recover (it is proximate). c. Second Accidenti. Attempt to escape from danger created by D- D who caused the danger is liable (foreseeable intervening act, not superceding) ii. Attempt to alleviate harm caused by D- physician treats a patient negligently and aggravated the disease (contracted hepatitis from a blood transfusion) - D is liable. d. Rescue Doctrinei. if D negligently created peril to one person, he is responsible in negligence also to one who comes to the rescue of the imperiled person, so long as the rescue attempt is not reckless 1. Rescuers are foreseeable as a matter of law

18

e.

f.

2. No assumption of risk defense applies to non-reckless rescuersbut 3. Rescuers still must prove that Ds negligence is a proximate cause of her injuries ii. If rescuer acts negligently, rescuer doctrine may still apply 1. non-reckless rescuer is injured by Ds peril 2. non-reckless rescuer injures imperiled person 3. non-reckless rescuer injures third person iii. Who Is a Rescuer? 1. one who (proximately) responds to a situation created by Ds negligence that involves peril to the person rescued (Suzuki, 338) 2. one who acts non-recklessly (non-wantonly) 3. one who is not paid to perform rescues Firefighters Rule because professionals are already encouraged to help persons iv. Rescue Doctrine does not apply when 1. non-reckless rescuer is a professional (firefighters rule)- b/c rescuer doctrine was developed for rewarding and encouraging people to help the imperiled. The professionals are obligated to help so there is not need to encourage them. They are already compensated for their hazard. v. Cases 1. McCoy v. Suzuki (338)- P stopped to help a car the had gone off the road and was injured walking back to his car- not so remote to cut off liability Acts of god- are foreseeable Kimble (329-note)- roof blew off the house- even if with an extraordinary wind there is concurring negligence, the party chargeable with it will be relieved of liability if the wind is so overwhelming that it would of itself have produced the injury complained of independently of any negligence i. Hypos 1. if the roof was so weak that a normal wind wouldve blown it off. This wind was unforeseeably strong. D is still liable b/c he created a risk 2. If the roof was strong enough to withstand a normal wind, but this wind was an unforeseeably strong one. D would not be liable b/c he took ordinary precautions 3. The roof was so weak that a normal wind wouldve blown it off. This wind was so unforeseeably strong that it wouldve blown off even a reasonably strong roof. D is not liable b/c it is not a cause in fact b/c it would have blown off anyways Unforeseeable Intervening Intentional Acts- Watson v. Kentucky & Indiana Bridge & RR Co. (329)- an unforeseeable intervening intentional act is superceding only if it is so extraordinary an unexpected that D should not have anticipated it. He was not bound to anticipate the criminal acts of others i. Intervening criminal acts are always superceding except: 1. where D is under a duty to protect P or Ps property 2. where Ds act destroys Ps protection from crime 3. where D brings into association with P a person he should know is likely to commit crime 4. where D has custody of a dangerous criminal and fails to restrain him

3.

PUBLIC POLICY

(A) Dram Shop Act (a) Definition A statute allowing P to recover damages from a commercial seller of alcohol for Ps injuries caused by a customers intoxication. (b) Two acts adopted by some states a.) liquor seller liable for damage if selling to visibly intoxicated person w/ cap $$ (sale to drunk) b.) liquor seller liable for damage if selling to anyone causing them to become intoxicated and results in injury w/ cap $$. (any sale) *Both with limited amount of money for recovery because seller only is partly liable, server as supplemental remedy. The drunk driver still is liable for criminal and tort liability.

(b) Adoption 36 states adopted Dram Shop Act, 14 did not.

Purpose of adopting the Act- To protect the injured victim for compensation when P was injured by people with no insurance or inadequate insurance, so P can get remedy. The purpose is not for deterrence of alcohol or finding fault of the alcohol seller. (c) Different Organizations Reaction on the two bills a. Mothers Against Drunk Driving a.

19

b.

c.
d. e. f.

g.

h.

i. Like any sale liable seller or alcohol did create risk to intoxicating people and cause injury. Adopting this bill, seller will be more careful and responsible. Bar and Tavern Owners i. Do not like either one of the bills. Adopting them could 1. Run out of business for small bars 2. End up increasing price of alcohol (even though all bars in the state will increase price, so not much competition raised) 3. Spend more $$ on insurance 4. Push customers to grocery store ii. If have to adopt one, they choose sale to drunk liable easier to tell intoxication, train their employees, limit their liability Hotel and Restaurant Owners- Do not like either bill. Adoption will push customers to other states. Suffer economy. If have to pick, pick sale to drunk liable. Retail Grocery- Do not like either one. Discourage business from opening up more, losing job opportunities, but also eliminate more competition. If have to, pick sale to drunk liable Insurance company- Adopting either bill, will end up selling more coverage, increase premium. Earning more$$$. Might also be more claims. Consumer- Increase of price in beer will not stop or deter any consumption of alcohol. For the injured or the intoxicated, bar or store is sharing the burden. Net Result from Adopting either Bill i. People will not drink less ii. Some stores will go out of business (people go to out of state boarder stores) iii. Better off check out boarder states rule iv. Economist needs to figure out how much increase in beer price v. Insurance needs to figure out how much increase in premium w/o Dram Shop Act i. The state will use reasonable prudent person standard. The bar, tavern may still be liable if serve to visibly intoxicated person. ii. Social Host liability for alcohol- majority- in the case of an ordinary able-bodied man it is the consumption of the alcohol, rather than the furnishing of the alcohol, which is the proximate cause of any subsequent occurrence. 1. Exception- Host will be liable if the person is a minor iii. Kelly (344)- a social host serving alcohol to a visibly intoxicated guest, knowing that the guest will drive, owes a duty of reasonable care to motorists and pedestrians- this is minority view 1. Dissent Holding The host is not liable for injuries a guest may cause to a 3rd party even when the liquor served by the host is a substantial factor in creating the guests negligence.

(B)

a. Enright (349)- grandmother took DES- a negligent injury to a mother that results in injuries to a later conceived child
does not state a cause of action i. Injuries to P resulting from pre-birth damage to Ps mothers reproductive system (prior to Ps conception) are not proximate. DEFENSES 1. PLAINTIFFS CONDUCT a. Contributory Negligence i. Contributory Negligence Rule- where both P and D have acted negligently and each is a proximate cause of the injury, P is barred from recovery Butterfield (586)- pole in the road and riding horse too fast - dont want P to be able to purposely cast themselves on the negligence of others 1. Possible Reasons for Contributory Negligence Rule: a. Punish P for negligence b. court will not assist one who lacks clean hands c. create deterrent against P acting negligently d. Ps act of negligence is superceding i. (so Ds negligence is not a proximate cause of Ps injury) 2. Exceptions to contributory negligence (Judicial Erosion of CNR): a. Ds conduct was intentional b. Ds conduct was grossly negligent

20

b.

D had the last clear chance with which through the exercise of ordinary care, to avoid Ps injury ii. Last Clear Chance- where both P and D have acted negligently, but where D has the last clear chance to avoid injury (if he uses due care), P may recover. 1. Possible Reasons for this rule: a. Ds negligence is a superceding cause (so Ps negligence is not a proximate cause of Ps injury) b. Because Ds negligence comes later, it must be greater than Ps c. Any excuse will do to avoid the results of the Contributory Negligence Rule (this is usually the case) 2. Case- Davies v. Mann (591)- donkey in road sequence is reversed from Butterfield iii. Characteristics of CN: 1. burden of pleading and proof on D 2. P required to conform same objective standard of RPP 3. Proximate Cause- CN barred recovery only when in the injury results from a hazard or risk which made Ps conduct negligent 4. Ps negligence towards known danger can be CN 5. P is not required to surrender a valuable right b/c Ds conduct threatened him with what would otherwise be an unreasonable risk iv. Hypos for CN 1. two drivers collide and injure a bystander, the neg of one driver is not the superceding cause which relieve the others liability 2. D directed verdict if P w/o excuse runs into the side of a train and collides with a car 10 ft high, painted red with bright letters v. Hypos for NOT CN 1. P dash into a train to save a child 2. P dash into a burning hotel to save a guest 3. P stands in the street to warn travelers of a traffic obstruction 4. P as a passenger is entitled to rely on the driver and may close his eyes vi. Hypos for Last Clear Chance 1. P negligently crosses I-75 and faints in the roadway, D sees him in time to stop but negligently hits P (P recovers) 2. P negligently crosses I-75 and fails to look for oncoming cars; D sees him in time to stop but negligently hits him (discovered peril and inattentiveness) a. Doctrine of discovered peril- where Ps prior negligence has placed him in a position from which he is powerless to extricate himself by using due care, and D discovers the danger while there is still time to avoid it and then fails to do so, P can recover (P must prove that D discovered the danger and had time to take action) b. Ps inattentiveness- where Ps neg consists in failure to pay attention to his surroundings and discovers his own peril. If D discovers his danger, and his inattentiveness is then neg P may recover c. P negligently crosses I-75 and fails to look for oncoming cars, D negligently fails to see him in time to stop (P and D have equal opportunity to avoid the accident so no LCC so CN applied P cannot recover d. P negligently crosses I-75 and faints in roadway and D negligently failed to see P in time to stop (Ps LCC to avoid has ceased but D has LCC to see the peril P recovers) e. P negligently crosses I-75 and faints D negligently drives with bad brakes, sees P, but hit him due to the brakes (no LCC so CN applies and P cannot recover) f. P negligently crosses I-75 and faints D is driving drunk sees P but fails to stop in time (CN and LCC N/A b/c does not apply to intentional torts or recklessness so J/P) Comparative Negligence- 46 states have adopted i. Hypo to explain comparative negligence 1. Ps neg = 51% Ps damages = $100,000 2. Ds neg = 49% Ds damages = $100,000 ii. Modified Comparative Negligence Rule 1. equal fault bar-P cannot recover anything if his fault is equal to or greater than that of D 2. greater fault bar- majority including GA- P cannot recover only if his fault exceeds Ds 3. Some states use LCC as exception to modified comparative neg rule a. P bears his own $100,000 + pays $51,000 to D = 151,000 (75.75%) b. D bears $49,000 of his own + pays nothing to P = 49,000 (24.25%)

c.

21

c.

iii. Pure Comparative Negligence Rule 1. General Rule- compensate an injured party for all of the harm attributable to the wrongdoing of D 2. Problem- by its nature, it permits the major wrongdoer to recover against the minor one 3. P bears $51,000 of his own + pays $51,000 to D = 102,000 (51%) 4. D bears $49,000 of his own + pays $49,000 to P = 89,000 (49%) iv. Contributory Negligence 1. P bears $100,000 + pays nothing to D = 100,000 (50%) 2. D bears $100,000 + pays nothing to P = 100,000 (50%) v. Case Assumption of Risk i. Express 1. General Rule- P in advance has given his express consent to relieve D of an obligation of conduct toward him and to take his chances of injury from a known risk arising from what D is to do or leave undone 2. Issues: (a,b,c Creswell, d,e- NOTES) a. Is risk within scope of the agreement? b. Equal bargaining power? c. Void as against public policy? (i.e. common carriers) d. Express assumptions invalid when Ds negligence constitutes a violation of a safety statute e. Exculpatory provisions do not cover extreme forms of neg, and do not insulate parties from liability for intentional torts 3. Case- Winterstein v. Wilcom- drag race P not recover. When the parties freely bargain for interest, did not involve a business of public interest, and did not involve a waiver of protections of safety statute, the release is valid ii. Implied 1. requirements a. P must know and appreciate the magnitude of the risk (requires subjective, actual knowledge) b. P must voluntarily encounter the risk 2. court attitude toward AR- its an affirmative defense and D has the burden to prove that P was aware of that specific risk 3. If P was CN, why might AR be important? a. If D was reckless, CN usually is avoided but AR still applies b. AR will bar recovery on strict liability 4. Rescue Doctrine negates AR

Hypos- * A.R. = assumption of risk Facts P rides w/ known novice driver P rides w/ known drunken driver P rides w/ visibly drunken driver, but P does not know P rides w/ driver who got speeding ticket 7 yrs ago P sat at center field baseball, got hit Fire-save child Fire-save hat Enter Ds premises in dark, unknown of danger, fails to exercise due care Amusement park, buys ride and get upsets

* CN = contributory negligence Voluntary? Y Y Y Known by P? Y Y N Reasonable act? Y N Y Defense? A.R. CN &A.R CN

The risk is reasonable. No negligence. No defense. There is no risk created Y Y Y N Y Y Y Y N Y Y N Y N Y

A.R No defense CN & A.R. C N. C.N A.R.

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6. 7. 8.

P can waive after protest a. Ps protest against Ds conduct is evidence that he does not consent to the situation b. However, after the protest, P may accept the situation, even though reluctantly, and waive the protest- assume the risk Some court hold that AR should be abolished or merged with comparative negligence CN v. AR- AR(subjective) involves the meeting of a subjectively known risk; CN (objective)may involve P exposing himself to a danger which was subjectively unknown but which would have been apparent had he used due care. Cases a. Rush v. Commercial (607)- fell through floor of bathroom- where a person who has no choice but to encounter a known risk, the persons conduct is not voluntary for purposes of implied assumption of risk (Contributory Neg Question) b. Blackburn v. Dorta (610)- affirmative defense of implied assumption of risk is merged into the defense of contributory negligence and the principles of comparative negligence (FL pure CN) i. Issue: whether a P who assumes the risk is completely barred from recovery? - due to adoption of the comparative negligence doctrine in place of the contributory negligence doctrine 1. A of R is abolished; the defense of contributory negligence 2. Merged doctrine CN liability = fault A of R D has no liability

JOINT TORTFEASORS 1. LIABILITY AND JOINDER OF DEFENDANTS a. Joint and several liability- each of several tortfeasors is liable jointly with the others for the amount of the judgment against them, and that each is also individually liable for the full amount. P can collect from any one of them or any group b. Joinder i. Originally English law permitted joinder in the same lawsuit of multiple Ds only if those Ds had acted in concert, but Ds who had not acted in concert could not be joined in the same action ii. Modern procedural codes- joinder is permitted when Ps claims arise from the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all Ds will arise in the action iii. Joinder is now permitted when Ds acted in concert, when Ds acted independently to cause the same harm, and even when Ds acted independently to cause different harm c. 3 types of concurrent negligence i. concert of action1. Ds agreement to injure P (agreement to hurt someone) or 2. agreement to create the risk (car race) ii. common (joint) dutyiii. single indivisible injury- they come from separate acts of negligence but are both joint and severally liable d. Concert of Action- there was a common purpose, with mutual aid in carrying it out. No express agreement needed just a tacit understanding i. Case- Bierczynski v. Rogers (361)- all who engage in a race on the highway do so at their peril and are liable for injury or damage sustained by a third person as a result thereof, regardless of which of the racing cars directly inflicted the injury or damage 1. Two negligent Ds acting in concert are jointly and severally liable to P injured as a result of their actions. e. Common Duty- Ds fail to perform a common duty especially when there is a special relationship i.e. employee/employer f. Single Indivisible Injury- all Ds negligence combine to bring about Ps indivisible harm i. Case- Coney v. JLG (364)- indivisible injury and P was contributorily negligent J/S remains even though CN ii. Reasons for retaining J/S after adopting CN 1. the majority of jurisdictions do so 2. apportioning fault in CN cases does not really make an indivisible injury divisible 3. avoid letting a portion of loss fall on a non-negligent P (P risked to hurt himself while D risked to hurt others) 4. eliminating J/S would prevent Ps from receiving adequate compensation 5. the goal of CN would be defeated by making P bear more than his proportionate share of the loss

23

iii. Case- Bartlett v. New Mexico Welding (366)- (unknown driver) P no CN, J/S does not maintain after adopting
CN iv. Reasons for abolishing J/S after adopting CN 1. CN supplies the theoretical basis on which an indivisible injury can be apportioned by a jury according to fault 2. abolish J/S liability (pro D) is a trade off for adopting CN (pro P) legislatures job not court 3. General tort reform fairness argument- extreme case: a 1% responsible D liable for 100% injury 4. modern rules allowing contribution among joint tortfeasors (where D1 pays D2 an assigned % of the judgment paid to P by D1) means that each D will end up bearing the correct proportion of the damages anyway 5. In single D cases, P bears the risk of non-recovery so why shouldnt P bear the same risk in multiple D cases? (in single D P has no other choice, Multiple D there is a better choice) 6. when shares of one or more tortfeasor cannot be collected from them, remaining or abolishing J/S makes a difference a. under J/S P can collect from one or more of the tortfeasors and leave it up to that D either to obtain contribution from the others or bear the loss alone b. Under CN (abolishing J/S)- each tortfeasor pays no more than his apportioned share and P bears the loss of an uncollectible share 7. Note- categories when joint tortfeasors are precluded from obtaining contribution a. Intentional misconduct b. Immune tortfeasors- intra-family (husband/wife) 8. Vicarious Liability- employers may not act negligently but will be liable for their employees negligence even though employee is liable too. 9. Successive Tortfeasors- each D is liable for own damage done to P a. Hypo- D1 ran over Ps arm leaving P on the road and D2 comes along and negligently ran over Ps leg. Ps injury is divisible D1 will be liable for damage to arm and leg (second accident rule) and D2 only liable for the leg CONTRIBUTION AND INDEMNITY a. Definitions: i. Contribution- a legal claim on behalf of D1 against D2, who may be negligent if D2s negligence is a proximate cause of the injury that D1 paid for, D1 can get contribution for D2. Is based on the share fault of joint tortfeasors. Both actors must be at fault 1. Ex- A and B negligently built a home which collapses on the owner. The owner sues A. A could get contribution against B b/c B was also at fault. ii. Indemnity- a party who is vicariously liable to recovery from the party who is primarily liable for reimbursement of expenditures paid to a 3rd party for injuries resulting from a violation of a duty. It is available to one who is vicariously liable for the wrongs of another even where they are not at fault (employee/employer) 1. ex- A is the employer and S is the employee. B negligently injures a customer and A is liable to the customer for any damages. A has a claim for indemnity against B (can probably get 100%) b. Essential elements for a cause of action for Contribution: i. Two or more negligent tortfeasors, jointly and severally liable ii. Contribution P must have paid the injured partys claim (either by settlement of judgment) 1. CAVEAT: Contribution P and Contribution D must not have been acting in concert in the commission of an intentional tort. c. People who commit intentional torts cannot recover contribution for a concert of action tortfeasor b/c of the clean hands argument. You dont want an intentional actor to be able to recover some of the loss d. Joint and Several Liability if: i. Concert of action 1. to cause injury (intent) no contribution 2. to create unreasonable risk contribution ii. common duty (employee/employer) indemnity iii. concurrent negligence (indivisible injury) contribution e. Majority rule- joint and several liability does remain after adoption of comparative negligence rule f. How much contribution?- jury decide the % i. Comparative negligence % to D1 and % to D2 (if D only paid his share, cannot seek contribution from other Ds) ii. J/S liability 100% could go to either D1 or D2 iii. Some courts use per capita to equally divide money to Ds

2.

24

g.

h.

i. j.

k.
l.

Hypo- P sues D1 and D2 for negligence. Prior to the trial D1 settles for 1000. Trail against D2 verdict says Ps injury = 15000. D2 pays 14000 and D2 now sues D1 for contribution. Possible solutions: i. No contribution allowed so long as it is a good faith settlement (encourage settlement) ii. Majority pro rata approach- contribution allowed, forcing D1 to pay D2 the remainder of D1s half of the verdict (discouraging settlement) iii. Better decision- proportionate share- the settlement is regarding as P selling the cause of action, so the judgment in favor of P against D2 will only be of the verdict 7500 (no contribution problem, b/c D2 only needs to pay his and P bears the burden of loss when he chose to settle with D1) Spousal immunity rule- cant sue your spouse for tort b/c of peace and tranquility and collusion for insurance Knell v. Feltman (383)- contribution P and contribution D must not have been acting in concert in the commission of an intention al tort Yellow cab v. Dreslin (386)- P must have cause of action against the party from whom contribution is sought. i. Contribution D must not be immune from suit by the injured party ii. Better Rule: 1. There must exist a policy reason to deny the liability of the Contribution D to the Contribution P. a. e.g. the policy reasons underlying any arguably applicable rule of immunity that bars liability of the Contribution D to the injured party must be inapplicable to a suit between the two negligent parties Slocum v. Donahue (388) Where a Contribution D has made a settlement with the injured party, it will bar contribution unless Contribution P proves fraud, dishonesty, or collusion other than by a low settlement amount alone or by provision to P of expert witnesses. Hypos: i. In a state with an owner consent statute, owner lends car to driver who negligently injures P. If P recovers from Owner, can owner recover from driver? 1. Yes- indemnity (owner vicariously liable through consent statute) ii. Owner allows driver to drive while owner rides as passenger. Driver negligently injures P who recovers from O. Can O recover from driver? 1. Yes - indemnity (owner vicariously liable through owner control presumption) iii. Owner Negligently allows driver to drive despite O knowing that drivers license is revoked for reckless driving. Drives is reckless and injures P who recover from O. Can O recover from Driver? 1. Yes - contribution (both O and Driver are negligent. Drivers act is intervening, but not superceding b/c same hazard)

VICARIOUS LIABILITY 1. RESPONDEAT SUPERIOR-let the superior make the answer a. An employer is liable for the tort of his employee if the tort and damage occurred during the scope of employment i. A is negligent ii. B is not negligent iii. C is injured iv. Vicarious liability impute As neg to B b. Reasons for Vicarious Liability i. Relationship between A and B makes it reasonable ii. A, as a class of persons, is usually not financially capable iii. B, as a class of persons, is usually financially responsible iv. C, needs compensation and is entitled to it under tort principles v. C can recover from B, based on a finding of As negligence vi. B has an indemnity claim against A (for reimbursement) c. Bussard v. Minimed, Inc (661) Where an employee becomes a dangerous driver due to a workplace condition, an accident on her drive home is within the scope of her employment. i. This is an exception of the Going and Coming Rule: 1. The daily commute of an employee to and from work is NOT within the scope of employment. 2. Fruit d. OShea v. Welch (663) frolic (substantial deviation) v. detour (slight deviation) i. Factors: 1. employees intent 2. nature, time, place of deviation 3. the work for which employee was hired 4. the incidental acts reasonably expected by employer

25

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the freedom allowed employee in performing the job a. use the features of an employees task for which he was hired to determine whether actions were really within the scope of employment (dont need to memorize these factors) e. Restatement 909- the principal is liable only if the principal authorized or ratified the act, was reckless in employing or retaining the agent, of the agent was employed in a managerial capacity and was acting in the scope of employment f. Would the action of the employee without negligence advance the objectives of the employer? Factors to consider: i. Time and place of the action ii. Similarity of its purpose to purpose of employment iii. It is commonly done by employees? iv. Is this action a departure from normal methods of working v. Did employer expect this action to be done vi. Did employer forbid or prohibit this action g. Policies that underlie Respondeat Superior i. Duty to hire responsible staff ii. Duty to control activities and insist on safety iii. Employer should bear inherent risks of the business iv. Ability to spread costs v. Employer has easier access to evidence vi. Employer and employee are a single person vii. Employer has deep pocket h. The employer cannot insulate himself from liability by imposing safety rules on the employees i.e. tells truck drivers to drive only at the speed limit but the employee speeds anyways and has a wreck employer still liable i. Employer can be liable for the intentional torts of the employee if the employee is acting within the scope of employment. When the employee acts out of purely personal motives, he has departed from employment and employer is not liable j. Hypo- employee distributed Coke stopped at customer 1 first and before going to customer 2 decided to take a detour to personal destination. On the way from the personal destination to customer 2 has an accident. Does R.S. apply? i. Control theory1. For R.S. a. Employee was driving a Coke truck therefore employer had right of control b. it was on the way to customer 2 so it was a duty of work 2. Against R.S. a. Happened on a detour and was not the duty that employee owed to employer ii. Enterprise theory- for the detour- employer would not benefit anything iii. If the accident happened in customer 2s parking lot, then R.S. might apply INDEPENDENT CONTRACTORS a. Vicarious liability to Intentional torts i. General rule- employer may be liable for the intentional torts of his employee when they are reasonably connected with the employment and so within its scope. When employee acts out of purely personal motives, employer not liable. Examples of when employer WOULD be liable:: 1. assault and battery on part of an employee trying to collect a debt 2. same as false imprisonment, malicious prosecution, defamation, deceit or IIED ii. Employer is NOT liable when 1. employer acting out of desire to revenge the seduction of his wife 2. employer in a quarrel in no way connected with the masters interests iii. Employer is liable for punitive damages for acts of an employee if; 1. employer authorizes or ratifies the action 2. employee is action in a managerial position 3. employer was reckless in employing or retaining employee iv. Factors in determining whether actor is Independent Contractor: 1. does employer have a right to control details of the work (most important factor. Details often means right to fire and hire) 2. Does employer supervise the work 3. Is employee engaged in a distinct business or trade 4. length of time of employment 5. method of payment (for employee and independent contractor file different tax forms) 6. Term of K (even though K express independent contractor court does not want employer to diminish their liability)

5.

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3.

4.

v. Rule of Independent Contractor: 1. Why no Liability for Independent Contractors: a. No right to control detail of the work b. The enterprise is that of the contractor c. Independent contractors, as a class, are financially responsible 2. Exceptions a. Negligence by employer- negligent in selecting the contractor or giving instructions to use improper equipment the company would be liable for its own negligence and there would be no need for vicarious liability b. Non-delegable duties- ad hoc decisions- some responsibilities cannot be delegated to an independent contractor for public policy reasons c. Apparent authority- one who expressly or impliedly represents that another party is his agent may be held VL for negligent acts to the extent of that representation d. Inherently dangerous activities- where the activities involve a peculiar risk of harm that calls for more than ordinary precaution, employer is liable for VL e. Illegal activities- one who contracts for performance of an illegal act is vicariously liable for any damage even if the agent is an independent contractor vi. Murrell v. Goertz (667)- employers of independent contractors are not VL for negligent acts of the Independent contractor vii. Maloney v. Rath (669)- reasons for imposing the non-delegable duty 1. Ds statutory duty to maintain brakes in good order 2. the need for a financially responsible D 3. D benefits from the use of the dangerous instrument (car) 4. driving the car is the Ds enterprise not the contractors 5. D selects the contractor 6. Liability insurance distributes the cost JOINT ENTERPRISE a. Four elements of Joint enterprise i. An agreement among the member of the group ii. A common purpose iii. A common pecuniary (profit) interest (court emphasize on business interest, not family interest) iv. An equal right to control direction of the enterprise b. Popejoy v. Steinle- D is not vicariously liable for the negligence of another under a theory of joint venture if the joint venture was not motivated by a common profit purpose i. Spousal relationship by itself does not create vicarious liable neither does parent/child BAILMENTS a. General rule- bailments do not result in vicarious liability. (Lending chattel property to another does not make the owner responsible for the borrowers negligence in using the chattel.) Exceptions: i. Owner Consent Statute (20 states) 1. many states have statute that makes owner of a vehicle vicariously liable for injury caused by the negligent operation of the vehicle 2. Problem- sometimes the scope of Consent is exceeded ii. Owner Control Presumption (common law) 1. mere presence of the owner in the car establishes his right of control over the driving so that the owner becomes responsible for the acts of the driver as if the driver were the agent of the owner a. Problem- unrealistic and encourages backseat drivers b. Even though this is unrealistic is does not relieve the owner of a duty to stop negligent driving as soon as he is aware of it iii. Family Purpose Presumption 1. the owner of a car is vicariously liable when the car is negligently driven by a member of the immediate household 2. assumption- driver is implementing a family purpose even if driving for his own pleasure 3. the car must be used with the permission of the owner 4. omnibus clause- provides that the liability insurance for the car applies to the named insurer, and member of the insureds household, and to any person using the car with insureds permission, provided the use was in the scope of the permission iv. Negligent Entrustment 1. the employer/owner/bailor/hospital was itself negligent in some way. An employer may be negligent in hiring an employee. This is not vicarious liability it is simple negligence. Examples:

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a. unlicensed minor driver b. owner knew driver was drunk c. shotgun given to a child b. Shuck v. Means (678) (owner consent statute)- whenever any motor vehicle shall be operated upon any public street or highway of this state, with the consent of the owner, express or implied, the operator thereof shall be deemed the agent of the owner. i. Reasons for adoption of the statute 1. encourage car owners to get insurance 2. rental company can spread costs to customers 3. if P was injured, should be compensated 4. even though owner (the rental company) with K to customer limiting their liability, it is not effective IMPUTED CONTRIBUTORY NEGLIGENCE a. Both-Ways Test i. General rule- P IS chargeable with contributory negligence actually committed by a third person IF the relationship between P and the 3rd person is such that P would be vicariously liable as a D for the negligent acts of the 3rd person. 1. contributory negligence of employee will be imputed to employer ii. Imputed Contributory Negligence does NOT apply to the following: 1. Drive and passenger a. Old cases- impose harsh duty on the passenger to keep a look out b. Today- allow a passenger to rely upon a reasonably competent driver 2. Husband and wife a. Old common law- married womans status merged with husband. Imputed to her b. Today- CN no longer imputed in spousal relationship alone 3. Parent and child a. Common law- child always entitled to have separate ownership of property and to be liable for his individual torts iii. Smalich v. Westfall (681)- held- both ways still applies but only when the relationship is employee/employer or joint venture 1. concurrence says why not just do away with the both ways rule

STRICT LIABILITY- D is liable even in absence of tortious intent or negligence 1. ANIMALS a. Four variants of the rule i. Strict liability ii. Fencing in iii. Fencing out iv. No liability w/o fault b. Fencing out- if animals break through Ps fence, then its his own fault; he has a duty to properly fence them out c. Fencing in- requires the owner of the animals to fence them in or otherwise restrain them, and made the owner strictly liable if he did not do so d. Owners of wild animals will be held strictly liable for any injuries they may cause e. Domestic animals are entitled to one bite unless the owner has reason to know that the animal has vicious tendencies then there would be strict liability f. Glidden c. Szybiak (75)- reasons: makes sure P gets compensation (b/c cant get it from the dog) and to reduce litigation 2. ABNORMALLY DANGEROUS ACTIVITES a. Blackburn a person who brings on his land something dangerous is strictly liable for the natural consequences of its escape i. Rest 1st- Ultra Hazardous Activities- Strict liability applies to activities that necessarily involve a risk of serious harm which cannot be eliminated by the use of the utmost care and are not a matter of common usage b. Cairns- strict liability applies to non-natural uses of land which result in the escape of something that harms another i. Rest 2nd- Abnormally Dangerous Activities- Factors in determining what is an abnormally dangerous activity: 1. existence of a high degree of risk of harm 2. likelihood that the harm will be great 3. inability to eliminate the risk by using reasonable care

28

c.

d. e.

f.

g. h.
3.

4. extent to which the activity is not a matter of common usage 5. inappropriateness of the activity to its location 6. extent to which its value is outweighed by its dangers Examples of strict liability activities i. Storing toxic chemicals and inflammable liquids in quantity in urban areas ii. Storing large quantities of water iii. Pile driving, excessive vibration iv. Crop dusting- split v. Poisonous gas fumigating- split vi. Rockets testing vii. Fireworks display- split viii. Hazardous waste disposal storage ix. Oils well- split x. Nuclear reactor (but federal statute preempt state tort law) Policy behind strict liability: i. Majority- distributive, the main purpose is to spread the cost and compensate P ii. J, Posner- super deterrence. Purpose of SL is to deter things that are not governed under negligence law Strict Liability Impact on Society: i. D will be liable to pay the recovery of the damages- insurance ii. Construction will be more expensive, charge city more iii. We pay more taxes to have construction done Rylands v. Fletcher (692)- strict liability applies to non natural uses of land which results in the escape of something that causes harm to another i. When determining if something is non natural look not only to the character of the thing or activity in question, but also to the place and manner in which it is maintained, and its relation to is surroundings Spano v. Perini Corp (699)- the intentional setting off of explosives in an area which it was likely to cause harm to neighboring property results in absolute liability i. Overturned Booth v. Rome, which said there had to be a physical invasion. Miller v. Civil Constructors, Inc (699) -

i. LIMITATIONS ON STRICT LIABILITY a. Ps injury must be within the risk for which strict liability is imposed i. The strict liability scope of risk (proximate cause) will be less than negligence b/c the person under the strict liability is doing a useful activity the negligent person is not 1. For negligence _________________________] remote 2. For SL ____________] remote ii. Foster v. Preston Mills (710) (minks)- Strict Liability for abnormally dangerous activities is limited to those consequences which lie within the extraordinary risks that make strict liability apply iii. Hypo- D knows his dog is vicious. Ds dog knocks P down. SL? No- not the same harm iv. you would want to sue under negligence rather than SL b/c the scope of liability is larger and b/c the damages will be more for negligence than SL (the SL person was acting with care) b. Damages must not be an Act of God i. Golden v. Amory (712)- Acts of God which causes the abnormally dangerous activity to cause damage to others will not make the person strictly liable ii. Given the damage to Ps property by water overflowing the negligently maintained Alden St. dike: 1. What if P proves that the Alden St. dike would have flooded Ps property in any normal foreseeable storm? P would recover 2. Even if D proves that the hurricane would have caused water to overflow even a properly maintained dike? When the force of nature is so overwhelming, Ds negligence is no longer a substantial factor 3. What if D proves that the hurricane rendered the presence of the Alden St. dike less than a substantial factor in the flood that damaged Ps property? Not very likely iii. Hypo- Ds electric cords were blown by a storm into Ps swimming pool. P was swimming and was electrified. No SL b/c electric cords are for common usuage- not abnormally dangerous. No negligence either c. P must not have assumed the Risk i. Black Letter Rule- CN is no defense to strict liability but AR is. CN P will recover from D but AR P will recover nothing ii. Sandy v. Bushy (714)- Contributory negligence is no defense to a strict liability offense

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iii. Bear Hypo 1. strict liability- even though he has had this bear for years it is still a wild animal 2. P can also claim negligence b/c- muzzle was too loose. P would not want to argue that having the bear wrestling in the first place is negligent b/c then it can be said that he assumed the risk and he would not get a recovery 3. Not RIL use RIL when there is an unexplained accident 4. Go with the muzzle argument b/c this is the risk that makes the bear dangerous 5. D wants it to be AR instead of CN so P will not recover 6. P wants to prove negligence 7. Ds only defense is AR if he can prove that 8. b/c there was a muzzle on the bear P would not reasonable expect to be bitten he didnt have the knowledge necessary for AR 9. being drunk is no defense to negligence 10. AR is almost always a jury question d. Must impose strict liability on health care providers if you dont apply res ipsa DUTY OF CARE 1. PRIVITY OF CONTRACT a. 2 competing Theories of Tort Law i. Restatement III- Negligence consists of: Unreasonable conduct Proximately Causing Injury (leaves out duty) ii. Prior Restatements- Duty, Breach, Proximate Cause, Injury b. One has NO DUTY to use due care: i. * to avoid inflicting only mental distress ii. * in failing to act iii. to avoid injury to unborn children iv. * to fulfill contract duties to one not in privity v. to avoid inflicting only economic harm c. Where P is a party to a K with D and where the action is founded on acts that breach the K promise, the applicability of tort law depends on whether the breach is nonfeasance or misfeasance i. Nonfeasance- only the K action will lie, not tort. Exceptions: 1. common carrier or public utility 2. Deceit (fraud-intentional misrepresentation) 3. Landlords promise to tenant to repair premises ii. Misfeasance- both K and tort action ill lie. 2 Theories: 1. Election- permit P to choose the theory of his action 2. Gravaman- the court will determine which one d. When P is not in privity of K with D, there is a duty to act where a tort duty arises as a result of a contractual promise: i. That is breached by nonfeasance, if and only if: 1. promisor is a common carrier or public utility 2. promisor never intends to carry out promise (deceit) ii. that is breached by misfeasance, except: 1. waterworks cases 2. contracts for professional services (except for services like drafting wills, where there is no other potential P) e. Winterbottom v. Wright (406)- Where P is not a party to the K, then P cannot hold D to the contractual promise and there is no tort duty to the contractual promise. Reasons- anyone could sue, contracting parties should be in control of the legal consequences that flow from the creation of their K i. Where P has been injured as a result of Ds failure to perform a duty arising from Ds contract with 3rd person, there is no negligence duty owed to P. f. Macpherson v. Buick Motor Co (409)- The manufacturer of the product owes a duty of reasonable care to the retail buyer IF: i. The product is reasonably certain to be dangerous if negligently made ii. It is known that the product will be used by person other than the buyer, and iii. It is known that the product will be used without new tests 1. MacPherson eliminated privity requirement in negligence cases by expanding concept of inherent or imminent danger to include a product that is dangerous because of its defect. g. H.R. Moch v. Rensselaer- Misfeasance but the court says no duty b/c no one would want to go into the water supply business if they were threatened with extensive liability.

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i. Incidental beneficiary- a person who may incidentally benefit from the creation of a K. This person has no actual interest in the K and cannot enforce any right to the incidental benefits ii. Third Party Beneficiary- person who are recognized as having enforceable rights created in them by a K to which they are not parties and for which they give no consideration h. Clagett v. Dacy- an attorney is not liable to a person who is not intended to benefit from his performance, and with whom the attorney does not have a K relationship. Attorneys obligation and duty is to act in the best interest of the client i. Attorneys owe a duty of care only to clients, unless the nature of the specific professional service makes it appropriate to extend the duty to 3rd parties. FAILURE TO ACT a. General Rule- There is no duty to act to assist a person in peril. i. failure to repair cases focus on whether there was any actual undertaking by the contractor. If repairer had done nothing at all, the case might be nonfeasance and the privity limitation might have applied. However, when there is an assurance to an owner that a repair has been made, even though nothing in fact has been done, modern courts have found misfeasance and thus beach of duty in tort law b. Reasons for No Duty to Act Rule: i. Liability too great compared to moral culpability ii. Difficulty selecting one from many possible Ds iii. Independence of individual places burden of staying safe on P iv. Ds failure to act not really a cause (in the same sense as actions) c. Good Samaritan Statute- if one undertakes to render aid, he is not liable for negligently doing so. Purpose of this rule is to encourage people to render aid and avoid their fear of being sued. Also to encourage doctors to help d. Exceptions to the No Duty Rule i. Where a statue imposes criminal sanction for failure to act and the court adopts the standard for civil liability purposes (negligent per se) ii. Where D voluntarily undertakes action and places P in a worsened position or Ds voluntary undertaking, and Ps detrimental reliance upon it e. Types of Voluntary Undertaking i. D stands in a special relationship to P that requires him to exercise affirmative care to protect him against the conduct of the third person ii. D stands in a special relationship to the third person, that gives him power to control that persons actions. He is then required to use reasonable care to exercise that control to prevent the third person from injuring P (parent/child) f. When D by his own negligence injures another, he is under a duty to take reasonable affirmative action to aid him g. Hegel v Langsam (417)- there is no duty to act to assist another in a peril (this rule is full of exception) h. Limitations are put on personal tort liability for volunteers as long as: i. They are acting in the scope of their responsibilities for a nonprofit or govt entity at the time of the act or omission ii. They are properly licensed, certified or authorized to perform the activity causing harm by the State where the injury occurred iii. They are not acting with intent to commit harm or criminal negligence, and iv. They are not driving a vehicle that the state requires a license or insurance to operate i. L.S. Ayers v. Co. V. Hicks (420)- where a business invitee is injured by an instrumentality under the control of the D (invitor) and is made helpless, D has a duty to use due care to assist P j. JS and MS v. RTH (426) A spouse who has actual knowledge or a special reason to know of the likelihood of sexually abusive behavior by the other spouse toward a particular person or persons has a duty to use reasonable care to prevent or warn of the harm. k. Special Relationships i. Employer/employee ii. Common carrier/passenger iii. Innkeeper/guest iv. Jailer/prisoner v. Occupier/entrant vi. Husband/wife; parent/child vii. Business invitor/invitee viii. Negligent person/injured person ix. Non-negligent person/person to whom injury caused l. Hypo- eating at a restaurant and choke. Restaurant is under a duty to help you b/c business invitee/invitor m. Hypo- Creswell asked Mike to look at his car and Mikes tie gets caught. Creswell is under a duty

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MENTAL DISTURBANCE AND THE RESULTING INJURY a. Two types of cases: i. Near Miss Case- Where P narrowly escaped imminent and serious harm to his own well being, courts have readily allowed recovery upon a demonstration of ensuing mental disturbance (pedestrian almost hit by a car) ii. Bystander caseb. Daley v. LaCroix (450)- Majority approach- Physical impact with Ps body is no longer a requirement for recovery if: i. P has physical consequences of mental distress that are 1. A natural result of fright 2. Proximately caused by Ds negligence c. Note- physical impact needs physical contact. However, physical consequence (manifestation) does not need it i. D argue1. difficult of proving causation 2. fraudulent claims 3. flood of litigation ii. P argues1. exceptions swallow the rule- a lot of exceptions to the rule 2. majority of states reject impact rule 3. impact is no real guarantee of genuiness iii. Traditional Approach- Courts deny recovery for mental disturbance in absence of physical injury except for rare cases involving telegraphic companies and the negligent mishandling of corpses (Ga and Fl still adopt the physical impact rule) 1. 2 Exceptions to Traditional Approach: a. Death telegram cases minority b. Mishandling dead bodies - majority d. Thing v. La Chusa (456)-bystanders may recover for mental distress caused by observing negligence inflicted on a 3rd party if: i. P is closely related to the victim, and ii. P is present and aware of injury (witnesses only), and iii. P suffers serious mental distress, that is: 1. beyond that of a disinterested observer, and 2. not abnormal (no thin skull Ps) e. Dillon v. Legg (applied by Thing)- (foreseeability/proximity) bystander can recover if mental distress is foreseeable considering 3 guidelines: i. nearness to the accident ii. contemporaneous observation of the accident iii. close relationship with victim f. Amaya v Home Ice (applied by Thing)- (majority) bystanders can recover for mental distress only if that are i. Within the zone of danger created by Ds negligence g. Look back over Siliznoff p. 53 Elements of IIMD i. Extreme and outrageous conduct ii. Done intentionally to cause severe distress either done for that purpose, or done with substantial certainty that severe distress will result iii. That does cause iv. Severe mental distress v. (that results in physical consequences) DAMAGES 1. Types of Damages a. Nominal Damages like in trespass to land cases (D had only walked on Ps land) i. Small amount of $ that indicates that P had rights and D had violated them b. Compensatory Damages putting P back in the position he would have been in if not for Ds action. i. Things to look at (these were what court looked at in Helen Britains case p.520) 1. past physical & mental pain non-economic damage (no ready $ equivalent); general damages 2. future physical & mental pain non-economic; general damages

3.

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past medical expenses economic; special future medical expenses economic; general lost past wages economic; special loss of future earning capacity economic; general permanent disability and disfigurement non-economic; general a. commonly referred to as pain and suffering b. awarded because P had suffered a loss, and the pain is real even though its impossible to put a $ value on c. jury must decide how much this is worth on their own (no experts) i. Criticism: schedule of damages should be used rather than letting jury arbitrarily decide. ii. General v. Special Damages 1. General cannot be determined to exact numbers 2. Specific Ps out of pocket expenses or economic losses can be calculated iii. Economic v. Non-economic Damages 1. Economic specific $ amount losses 2. Non-economic non-$ amount losses (physical pain/suffering, mental anguish) iv. Judges Powers 1. If there has been a runaway jury, then judge has power to order new trial (judicial restraint on jury verdict. 2. Remittitur motion for new trial granted conditioned upon the refusal of the P to accept a lesser amount 3. Additur when the verdict is inadequate, trial judge may grant motion for new trial conditioned on Ds refusal to pay a larger sum set by the court. c. Punitive Damages like in intentious tort cases d. What if damages could be corrected by surgery, but P refuses surgery? Should P still get damages based on permanent disabilities? 1. No recovery (P can only recover if reasonable person would refuse surgery). e. Collateral Source Rule (Montgomery Ward & Co v. Anderson, 540) if injured receives compensation from source independent of tortfeasor, payment should not be deducted from damages tortfeasor must pay i. Gratuitous or discounted medical services are a collateral source not to be considered in assessing the damages due to a personal injury P. ii. Examples of collateral benefits: 1. medical insurance payments to P and/or to providers 2. disability insurance payments 3. life insurance 4. sick leave (value of wages continued during incapacity) 5. govt benefits (Medicare, veterans benefits) 6. personal and/or professional services provided to P as a gift f. Doctrine of Avoidable Consequences (Zimmerman v. Ausland, 545) P cannot recover for damages that would have been avoided if a RPP would have taken action (after the initial injury) that would have avoided those damages. g. Religious Beliefs do we take Ps religious beliefs into account or do we take P as we find him? Is P who refuses treatment on account of religious beliefs a thin skull P? i. Courts are split. h. Threshold Issue Tortious Conduct +? i. Triggers 1. aggravation, outrage, malice, fraudulent motive 2. intentional torts 3. recklessness (wilfull or wanton conduct) a. (D knew or should have known of the high probability of injury) h. X Negligence alone is not wnough (strict liability alone is not enough either) i. Burden of proof: clear and convincing evidence (higher than more likely than not)

3. 4. 5. 6. 7.

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i. Majority rule Cases: i. Cheatham v. Pohle (551) statutory states share of Ps punitive damages award did not violate constitutional prohibition on taking of private property without due process because P is not entitled to punitive damages and punitive damages are not Ps property. ii. State Farm Mutual Auto Ins Co v. Campbell (556) Where an award of $145m in punitive damages, where full compensatory damages are $1m, is excessive and not reasonable or appropriate to the wrong committed, and is an irrational and arbitrary deprivation of Ds property ratio between compensatory damages and punitive damages should be reasonable. PRODUCTS LIABILITY 1. 3 Theories of Liability: a. Negligence b. Warranty i. Express 1. Baxter v. Ford Motor Co (722) An express warranty accompanying a product sale is actionable by one not in privity if the product purchaser is unable to discover whether the promised condition of the certain product is present. a. Abolished privity requirement by interpreting advertising as a warranty promise made to the public generally ii. Implied 1. warranty of merchantability fit for general purpose which such products are bought and sold 2. warranty for fitness for purpose buyer asks for a product that will fit his specific purpose (ex: I want a car that will not slide on ice) 3. Case Henningsen v. Bloomfield Motors (726) Where a manufacturer puts a new product into the stream of trade and promotes its purchase to the public, an implied warranty that it is reasonably suited for use as such accompanies it into the hands of the ultimate purchaser. a. Implied warranties run with the product to the foreseeable consumer iii. Restrictions on Warranty Liability: 1. Notice of breach to seller (reasonably prompt) 2. Reliance by the buyer c. Strict Liability in Tort i. Greenman v. Yuba Power Products (732) A manufacturer is strictly liable when it places on the market a product that injures P due to defect in design or manufacture, 1. knowing it will be used without inspection for defects 2. so long as the product is being used as intended, and 3. P is unaware of the defect a. This holding was translated into Restatement (2nd) 402A cause of action for strict liability for personal injury caused by a product applicable to all products. Ps claims: v. manufacturer v. retailer negligence went to jury DV/D express warranty went to jury DV/D implied warranty DV/D went to jury: J/D j. 2. a. b. c. d. products Development of Product Liability Law: privity requirement abandoned for negligence claims liability grounded in law, rather than dependent upon K duty courts refust to let sellers define liability through K disclaimers requirement of proof of negligence abandoned strict liability triggered by defective MacPherson holding: The manufacturer of a product owes a duty of reasonable care to the retail a. b. and The product is reasonably certain to be dangerous if negligently made, It is known that the product will be used by certain persons other than the buyer,

3.
buyer IF

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c.

It is known that the product will be used without new tests.

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