TORTS (LAW 5418 Fall 2011)

Table of Contents
I. INTRODUCTION.......................................................................................................................................................2 A. Goals of Tort Law 1-11...........................................................................................................................................2 Some Broad and Conflicting Aims of Tort Law.........................................................................................................2 Ideas of Corrective Justice..........................................................................................................................................2 Compensation, Risk Distribution, Fault.....................................................................................................................3 B. Overview of Damage Awards: 13-16.....................................................................................................................3 C. Overview of Procedure: 17-24...............................................................................................................................3 II. INTENTIONAL TORTS............................................................................................................................................4 A. Battery: 27-35, 35-43............................................................................................................................................4 B. Other Intentional Torts: 44-59...............................................................................................................................5 C. Defenses to Intentional Torts: 60-73, 73-81...........................................................................................................7 III. COMMON LAW ELEMENTS OF NEGLIGENCE...............................................................................................10 A. Duty of Care..........................................................................................................................................................10 The Reasonable Person: 83-100...............................................................................................................................10 a) Negligence Per Se: 100-11....................................................................................................................................12 B. Breach of Duty......................................................................................................................................................14 Risk-Utility: 112-22, 127-34...................................................................................................................................15 Multiple Parties: 131-34..........................................................................................................................................16 Proving and Evaluating Conduct, Notice, Custom: 135-47......................................................................................16 Res Ipsa Loquitur: 147-62.......................................................................................................................................17 C. *Injury: 163-65....................................................................................................................................................18 D. Actual Cause: 165-85...........................................................................................................................................19 E. Proximate Cause ...................................................................................................................................................22 *Scope of Risk: 186-203..........................................................................................................................................22 Intervening Causes: 203-17......................................................................................................................................24 F. Contributory & Comparative Negligence: 218-36................................................................................................25 G. Assumption of Risk: 239-51................................................................................................................................27 H. Statute of Limitations; Statutory Compliance: 252-57........................................................................................29 IV. DAMAGES: 587-594 (skip McDougald v. Garber), 595-604................................................................................29 A. Compensatory Damages.......................................................................................................................................29 B. Capping and limiting Damages.............................................................................................................................31 C. Punitive Damages.................................................................................................................................................31 V. ADDING COMPLEXITY TO NEGLIGENCE CLAIMS........................................................................................31 A. Duty of Care Revisited: Limiting or Expanding the Duty of Care.......................................................................31 Landowners: 263-76.................................................................................................................................................31 Nonfeasance: 347-358 (skip DeShaney), 371-73 (section 3), 340-41 (Note on Public Duty Doctrine)..................35 Protection from Third Persons: 376-86 (skip Note: Duties of Colleges), 387-91, 398-403...................................36 B. Vicarious Liability: 458-60, 471-79, 483-84 (notes) read enterprise liability skip serving 2 masters................38 C. Products Liability: 502-07, 508-21, 526-33, 535-40............................................................................................40

This Outline did not depend on previous student Outline as this is the first time Prof. Mantel has taught this course. It however relied heavily on class notes and information from several resources including, Dobbs Casebook, Lexis, Barbri, Themis, Acing Torts, etc.

I.

INTRODUCTION

A.

Goals of Tort Law 1-11

Torts as wrongdoing: Torts are wrongs recognized by law as grounds for a lawsuit. Harm required: In all tort cases, the defendants wrong results in a harm to another person or entity. Torts, crimes and contracts. Breach of contract is often not considered to be a tort and must ordinarily be redressed under the rules of contracts, not the rule of torts. Some torts are crimes eg battery.. criminal law and Tort law sometimes overlap but are not identical. Criminal law aims at vindicating public interests, while tort law aims at vindicating individual rights and redressing private harms. Non-tort systems. There are alternatives to tort law. Eg. Workers Compensation Common questions in tort law. A) what conduct counts as tortuous or wrongful B) did the conduct cause the kind of harm the law will recognize C) what defenses can be raised against liability if the defendant has committed a tort. Some Broad and Conflicting Aims of Tort Law Morality or corrective justice. Tort law are largely erected under two large systems of thought. Morality or corrective justice attempts to hold defendants liable for harms they wrongfully caused on others. While good social effects may result from doing so, thats not the objective. The overall object of tort law as stated in a recent decision of the House of Lords, is to define cases in which the law may justly hold one party liable to compensate another. Fairchild v. Glenhaven Funeral Servs., [2002] 3 All E.R. 305, 2002 WL 820081 (H.L. 2002) Social utility or policy. This school of thought bases tort law on social policy or a good for all of us view. Process. Rules must be made with the legal process itself in mind. Must be the kind of rules that judges and juries can understand and apply in practical ways. Potential conflict. Morality and Social utility basis for tort law are usually antithetical to each other. Ideas of Corrective Justice Fault and corrective justice. Tort law imposes liability upon defendants for conduct the law treats as wrong. In these situations, tort law seems to be commensurate with corrective justice ideals. Conversely, one may argue that it would be wrong to impose liability upon a defendant who is not at fault in causing the plaintiff harm. Society may wish to compensate injured people by the use of public funds, but it cannot justly force one innocent individual to compensate another. This view emphasizes individual accountability for fault along with individual freedom to act without fault. Strict liability and corrective justice. Does tort law go beyond the principle of corrective justice when it imposes liability without fault? E.g. someone damages your property while the property is in my care..A rule that imposes liability upon me would be a strict liability rule because I was not at fault however, liability seems to accord with corrective justice as long as you and I both understand upfront. Uniting the potential gains and losses. Some thinkers advocate that a general regime of strict liability on the grounds that it is morally based and within the principle of corrective justice. This line of thought works best when an active person causes harm to a person or thingwhen both parties crash into each other for instance, it is much harder to work out strict liability based on corrective justice.
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Compensation, Risk Distribution, Fault ..Risk distribution or loss spreading.. Some commentators argue that tort liability should be strict or expansive to secure more compensation for more injured persons. Some defendants such as product manufacturers, were seen as good risk distributors and could pay compensation for injuries they cause and then recoup some or all of those costs by raising price of product. In this view each purchase of the product will pay a tiny fraction of the cost of injuries inflicted by those products and injured person will not be compelled to bear the entire cost alone. Similarly, an enterprise would be forced to internalize losses typically generated by the business itself. Limited acceptance of risk distribution. The common law of tort has not generally adopted views that compensation is more important than corrective justice or that liability should be strict. Distribution arguments and strict liability have gone hand in hand in a few kinds of cases. They have not supplanted fault as the most common basis for tort liability. Moral and policy reasons for limiting compensation to cases of fault. Judges possibly do not adopt strict liability across the board and order compensation in every case in which defendant causes harm because judges feel heavily committed to a system of corrective justice and turn to social policy only when the feel that social policy and corrective justice coincide at least in part. Possibly, in spite of social policy favoring compensation, other social policies may only counsel limited compensation through the tort system. Risk distribution arguments may be sound but better suited to legislatures.

B.

Overview of Damage Awards: 13-16

Compensatary Damages Lost wages/earning capacity Cost of repairing/replacing damaged item Medical expenses Pain and suffering Punitive Damages

C.
Trial Stage Pre Trial

Overview of Procedure: 17-24 Trial Stage Complaint Filed (Plaintiff) Answer (Defendant) Discovery Procedural Device Motion to Dismiss / Demurrer (Defendant) Motion for Summary Judgment (Defendant) (End of Discovery) Motion for Directed Verdict (Defendant) (End of Plaintiffs Case) Motion for Directed Verdict (Usually Defendant) (End of Defendants Case) Challenge on Appeal (Losing Party) Motion J.N.O.V (Losing Party) Motion for New Trial
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Trial

Plaintiff Presents Case Defendant Presents Case

Jury Instructions Jury Verdict

(Losing Party) Challenge on Appeal (Losing Party) Appeal

II.
Battery: 27-35, 35-43 Battery Prima Facie Case Intent Element:

INTENTIONAL TORTS

A.

Intent to touch/contact Actual intent to contact or knowledge of substantial certainty of contact Intent to contact plaintiff or intent cause plaintiff to come into contact with something/someone Intent to contact another transfers to plaintiff and Intent to harm or offend Actual intent to harm/offend or knowledge of substantial certainty harm/offend Knowledge can be found if: People typically harmed/offended by conduct Defendant knew plaintiff would be harmed/offended Result Element: Contact Direct contact or cause plaintiff come into contact with something/someone And Contact was harmful or offensive Offensive if reasonable people offended or plaintiff reasonably offended No fault no liability Van Camp v. McAfoos
Facts: kid operating tricycle and ran into P causing injury to Achilles tendon. P plead that D's of her person is cause of action. Intentionla wrongful or negligent use not plead by P. Ruling: No cause of action invasion

Establishing intent can be achieved if shown knowledge substantial certainty of contact Garrat v. Dailey
Facts: P asserts that D - 5 yr old pulled chair from under her resulting in fractured hip and other injury. D asserts that he only moved chair to sit in it himself not to affect P. Ruling: Remanded to trial court to determine D's intent painful

A mentally deficient person may be liable for tortious conduct; if (s)he intended offensive or harmful consequences. White v. Muniz
Facts: P alleged that 83yr old dementia patient in in an ALF struck P as P tried to change her diaper. P sued. Ruling: Trial court ruled for D, Appellate court reaffirmed

The actor need not intend that his contact be harmful or offensive in order to commit a battery so long as he deliberately made the contact and so long as that contact satisfies our legal test for what is harmful or offensive. Stoshak v. East Baton Rouge Parish School
Fact: The plaintiff, a school teacher, broke up a fight between two students during school hours, was accidentally struck by the student in the back and injured. Ruling: Trial court ruled in favor of D, Appellate court over-ruled in favor of P Extended liability principle - person who commits an intentional tort is liable for all damages caused, not merely those intended or foreseeable.

Other Intentional Torts: 44-59 Assault Prima Facie Case Intent Element: Intent cause harmful or offensive contact, or Intent to cause imminent apprehension of harmful or offensive contact Result Element: Reasonable apprehension of a imminent battery * No contact Words alone cannot count as assault. Words negating intent to effect immediate touching may counter threat An assault constitutes the touching of the mind, if not the body..damages recoverable for an assault are for mental trauma and stress. Cullison v. Medley
Fact: P allegedly made a pass on D's 16 yr old daughter. D and family came to his home (grandpa had a revolver strapped on his thigh, shooked it a few times towards P, threatened to jump astradle of P. TC entered SJ against P Ruling: Appellate court reversed in favor of P

B.

False Imprisonment Intent Element: Intent to confine or restrain another to a bounded area Result Element: Those actions directly or indirectly result in such confinement (Doctrine of transferred intent applies to false imprisonment) D may confine or restrain P by use of physical barriers, physical force, direct or indirect threats to the plaintiff, a third party or Ps property; failure to provide a means of escape or invalid use of authority. Moral pressure or future threat does not constitute confinement or restraint, P must be conscious of the confinement. Conduct of the actor does intend to and does in fact 'confine' another within boundaries fixed by the actor where the victim is either conscious of confinement or is harmed by it. McCann v. Wal-Mart
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Fact: As P (mother and 2 sons) were attempting to leave store, 2 employees stepped in front of their cart and stated that the kids were not allowed in the store as they had been caught stealing from the store a few weeks earlier. D indicated that P had to go with her and that they had called the police who was on their way. Later found that D identified wrong kids. P sued. TC ruled in favor of P, D appealed.

Merchant Exception: A merchant or merchant's agent who has reasonable cause for believing that merchandise has been taken may detain a person for a reasonable time to deliver him to a peace officer. ( Peters v. Menard) Damages- it is not necessary to prove actual damages- punitive damages may be imposed if D acted with malice. Trespass to Land When Ds intentional act causes a physical invasion of the land of another Intent: D need only have the intent to enter the land or cause a physical invasion not intent to trespass. D need not know that the land belongs to another. (flooding, throwing rocks, chasing third party, failure to leave after expiration of lawful right of entry) May be committed on, above, or below the surface of a plaintiffs land. Amaral v Cuppels
Fact: P home on golf course, one P collected over 1800 golf balls that landed on her property. Ct ruled projection of balls constituted continuing trespass because balls deprive Ps of the exclusive possession of their land.

*mistake of fact is not a defense. Doctrine of transferred intent applies *if no physical object enters onto a Ps land, e.g., floodlights, onto Ps land Conversion of Chattels Substantial dominion over anothers chattel and interference with anothers ability to control their property. Conversion may be accomplished by aiding and abetting anothers conversion. Exception: A steals Bs watch, and then sells it to C. both A and C are converters (both exercised substantial dominion over Bs watch) and are both liable. even if C bought the watch in good faith without notice of Bs rights. Theory is that C cannot buy from A more than A has. A has no title and thus cannot transfer title to C. If however, A got title by trick or fraud; in the period that A has the title, if he sold it to C, then he could transfer title to someone else and the title would be good. However, if the buyer knew of the fraud, then buyer would be a converter. Trespass to Chattels Intentional interference of dispossessing of anothers chattel or using or intermeddling with anothers chattel Liabilities based on actual damages. School of Visual Arts v. Kuprewicz P alleged that the D posted false job listings on an internet website for the director's position and that the employee provided the director's school e-mail address to various pornographic websites, resulting in the receipt of large volumes of unwanted sexually explicit e-mails. Granting
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the employee's motion in part, the court held that the only viable cause of action was the school's claim for common law trespass to chattels, because the school alleged that the "large volumes" of unsolicited job applications and por-nographic e-mails depleted hard disk space and drained processing power of the school's computer system. Ruling: Dismissed other charges except 'tresspass to chattels'

C.

Defenses to Intentional Torts: 60-73, 73-81 Self-defense defense of others Must show: 1) Reasonable person would have perceived an imminent threat requiring defense, and 2) Response was reasonable and not excessive Retreat not Necessary (though modern trend is for some jurisdictions to impose a duty to retreat before using deadly force where this can be done safely unless in ones home Not available to Aggressor initial aggressor not privileged to defend himself against the other partys reasonable use of force in self-defense. (unless deadly force)

Arrest and detention Must show: 1) Reasonable cause for believing crime committed; 2) Detained on or near premises; 3) Detained for purpose of investigation or delivering plaintiff to law enforcement; 4) Detained for reasonable amount of time; and 5) Actions reasonable A private person often had a privilege to make an arrest for felonies committed under some circumstances. But the private person had no privilege to arrest for misdemeanors unless the misdemeanor was committed in his presence or the misdemeanor was a breach of the peace.

Defense of property Permissible if: 1) Action reasonably necessary to defend property, and 2) Force used commensurate given threat *Deadly force not reasonable if no threat to life or limb Privilege to discipline Katko v. Briney, The law has always placed a higher value of human safety than upon mere rights in property. There is no privilege to use any force calculated to cause death or serious bodily injury where only the property is threatened.
Fact: D was tired of his farm house being broken into and set up a shot gun trap in one of the rooms. P broke into Ds unoccupied farm house and was injured on the leg by the gun. 7

Ruling: for P- force used not commensurate.

Brown v. Martinez
D and 2 of his friends trespassed Ds garden patch to steal watermellons. D came out with his rifle and called on the boys to get out; D fired his gun on the SE corner to scare the boys who were running SW. a bullet struck P. TC dismissed but appellate court reversed.

Recapture of chattels: If a thief runs out of the store with a valuable item, the store detective is privileged to recapture it if he does so immediately but once possession has been lost, the detective cannot forcibly recapture it from the thief a few days later. Repossession of land: Jurisdictions are split on this; many require land owner to seek recovery in court; some permit owners with writ of possession to use force, (limited always to reasonable force). Arrest and searches Privileges to enter land/premises pursuant in connection w/ public rights Necessity 1) Action intended to benefit public 2) Reasonable belief action necessary to avoid imminent public threat 3) Reasonable response to public threat Surrocco v. Geary
Fact: D entered P's home and store and destroyed it to prevent conflagration to adjacent building. P sued for damages. P was awarded damages. D appealed. Ruling: SC reversed TC's ruling

Wegner v. Milwaukee Mutual Ins. Co.

Private Necessity Private necessity is an incomplete defense: the defendant is privileged to interfere with another's property, but is liable for the damage. When there exists a private necessity: 1) Property owner loses right to defend property 2) No liability when no harm (other than loss of right to exclusive possession) 3) Liability for any damages where deliberately trespass knowing damages likely Ploof v. Putnam
Fact: D was owner of dock attached to an island. P moored the sloop to D's dock upon the incidence of a storm. D's servant unmoored the sloop and it was driven upon the shore by the storm and destroyed. P sued for trespass and negligence. D demurred on both counts, TC denied, D excepted 8

Ruling: SC affirmed TC ruling

Public necessity in times of war or peace may require the taking of property for public purposes; but under our system of jurisprudence compensation must be made. Vincent v. Lake Erie Transp. Co.
Ds ship was docked at Ps wharf during a storm. During the storm, Ds boat was anchored to Ps wharf and the impact of the wind made Ds boat to damage Ps wharf. . P brought an action against D to recover for the damages The trial court denied defendant's motion for a directed verdict and entered judgment in favor of P. SC affirmed.

Consent Consent can be non-verbal Effective consent if reasonable person would believe plaintiff consented No consent if not voluntarily given and defendant knows this Coercion/duress Power imbalance Consent ineffective if not meaningful consent and defendant knows this Plaintiff incapable of understanding nature of act/ consequences/ moral significance Plaintiff misled/mistaken as to true nature of act Special case of consent in power relationships: Robins v. Harris
P an inmate at a jail supposedly flashed D a corrections officer. D later summoned P out of her cell and brought her to the shower room and she engaged in inappropriate sexual activities with her. P filed battery charges, D raised consent as affirmative defense. Ruling: Consent not available as defense.

If the actor exceeds the terms or conditions of the consent, the consent does not protect the actor from liability for the excessive act Ashcroft v. King
16 yr old P consented to operation on the condition that any blood transfusion required would be from family donated blood. Instead, the transfusions used was from the general supplies on hand and was infected with HIV. Ruling for P exceed scope of consent.

If a patient clearly objects a specific medical treatment, and the medical provider dishonors that, then they have gone beyond the scope of consent--however, if medically necessary and consent was not feasible, then consent construed as broad
Kennedy v. Parrot pg (70 )

Medical Emergencies: the ordinary rule that it is battery when a doc treats a patient without patients consent or in excess of scope may not apply when the doctor must act in an emergency and obtaining consent is not possible. Capacity Required for consent: Incompetents, drunken persons, and very young children are deemed incapable of consent to tortious conduct. Consent of parent or guardian is necessary to constitute a defense in such a case.
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Criminal Acts: majority view is that a person cannot consent to a criminal act. A minority view and the Restatement of Torts take the contrary position that consent to a criminal act is a valid defense in a civil action for an intentional tort. Modern tendency has been to differentiate between illegal acts that are breaches of the peace, e.g. street fight (consent ineffective); and those that are not a breach of the peace e.g., an act of prostitution (consent effective). Consent Invalid where law seeks to protect members of a victim class e.g. statutory rape

III.

COMMON LAW ELEMENTS OF NEGLIGENCE

Duty of Care The duty owed by all people generally the standard of care they owe is to exercise the care that would be exercised by a reasonable and prudent person under the same or similar circumstances to avoid or minimize risks of harm to others. . . . The reasonable person exercises care only about the kinds of harm that are foreseeable to reasonable people and risks that are sufficiently great to require precaution. Dobbs General Rule: A duty of care is owed only to foreseeable plaintiffs The unforeseeable plaintiff problem Palsgraf: Andrews View P2 may establish the existence of a duty extending from the defendant to her by showing the defendant has breached a duty he owed P1. D owes duty to anyone who suffers injuries as a proximate result of his breach of duty to someone. Cardozos View P2 can recover only if she can establish that a reasonable person would have foreseen a risk of injury to her in the circumstances, i.e. she was located in a foreseeable zone of danger.

A.

The Reasonable Person: 83-100 In most jrd, a jury will be permitted to consider the physical conditions of the D and that the D was acting under emergency conditions. Most other characteristics, such as mental conditions or inexperience, are not taken into account. Stewart v. Motts (dangerous instrumentality)(pg 85) Hill v. Sparks (dangerous instrumentality(pg 95) Shepherd v. Gardner Wholesale (pg 91) (P with impaired vision has reasonable duty of care of someone with defective vision) Emergency: Nearly all states permit jury to consider the reasonableness of evidence that the D was acting under emergency conditions not of Ds making however, the fact that D was acting in an emergency does not necessarily exculpate D from liability. Bjorndal v. Weitman (pg 87) Physical Condition: As a general rule, D s own physical qualities may be taken into account sometimes the physical condition of a party may
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require the use of greater care.. Mental Condition: Most courts treat mental condition as wholly irrelevant for the purpose of negligence liability. Insane are held to a standard of sanity and people with cognitive disabilities are held to a level of normal intelligence. Public policy reasons most often cited include allocation of losses between innocent parties to the one who caused the loss; incentive for people interested in the estate or care givers of the people with mental condition to prevent harm; reduce incentive for tortfeasors to fake mental disability; avoid or minimize administrative problems involved in courts attempting to identify and assess actors disability.
Creasy v. Rusk(92) (one way duty of care for one employed to care for combative patient with mental sickness)

Policy Reasons b/hind holding mentally disabled pple liable. 1) allocates losses btw two innocent parties to the one who causd the loss 2) provides incentive to those responsibl for pple w/disabilities and interestd in their estates to prevent harm & restrain those who re potentially dangerous 3) removes inducements for alleged tortfeasors to fake a mental disability in order to escape liability. 4) avoids administrative problems involved in cts and juries attemptin to ID & assess the significance of an actor's disability. It can be difficult to draw the line btw mental deficiency & those variatns of temperament, intellect e.t.c. Superior Abilities, Skill or Knowledge The standard of care does not change for those with superior skills although the defendant's special skills may affect the jury's breach determination. The reasonable person standard sets the minimum of community expectations, and those able to provide more are expected to do so. In other words, those with special skills must use such superior judgment, skill and knowledge as they actually possess. Gender Bias in the Reasonable Person Standard Most courts have replaced the reasonable man with a reasonable person, believing that this word change manages to remedy the male bias of the standard and the exclusion of women from the standard. Many feminist scholars disagree that a simple word change brings about an end to gender bias in the standard. Ultimately, the debate about the proper standard will continue, with some advocating a gender-inclusive standard and others arguing for a standard that focuses on the unique experiences of women. The Child Standard of Care Most jurisdictions hold children to a variation of a standard that compares their conduct to other reasonable children of the same age, experience, and intelligence under like circumstances. While it is objective in that it compares the child to an external standard of other children, it is far more subjective than the adult reasonable person standard as it allows the jury to consider the child's specific qualities such as experience and intelligence.
Hudson-Connor v. Putney (98) (11 yr. old in golf cart)

Rule of sevens a few cts say that minors over 14 are incapable of negligence, those btw
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7 and 14 presumed incapable of it, and those below seven are incapable of negligence as a matter of law. Most states hold that children of very young years, 3 & under, are simply incapable of negligence.

Adult Activities Many jurisdictions have concluded that children should not be entitled to special treatment when they are engaged in adult or inherently dangerous activities, such as driving a car.
Robinson v. Lindsay (pg 97) (Fact: D a 13 yr old, injured D in a snowmobile accident. TC instructed jury that D was expected to exercise duty of care of one would expect of his age mates. Jury returned for D. TC overruled and ordered new trial. D appealed, AC affirmed. SC affirmed.)

Degrees of Negligence The notion of highest degrees of care makes little sense. Such language cannot be justified in light of a standard of care requiring the defendant to act as a reasonable person under the same or similar circumstances. A defendant is negligent because of the failure to exercise reasonable care, and the amount of due care required of a defendant will vary with the circumstances. Operator of motor vehicle Even in the absence of statutory requirement, the operator must exercise ordinary carecare that an ordinarily reasonable and prudent person would exercise under similar circumstances.
Marshall v. Southern RR (pg 100)(P failed to exercise reasonable care driving at night) Chaffin v. Brame (pg 100)(P did not fail to exercise reasonable care driving at night D negligent)

a)

Negligence Per Se: 100-11 Overview The negligence-per-se doctrine provides that in certain situations a criminal statute (or administrative regulation or municipal ordinance) may be used to set the standard of care in a negligence case. These statutes make no mention of civil liability but, rather, impose fines or even imprisonment as punishment for those violating their dictates. Where appropriate, a specific legislative standard replaces the more general reasonable person standard. Elements Negligence Per Se 1. The statute/regulation clearly defines required standard of conduct; 2. The statute/regulation is intended to prevent type of harm D caused; 3. P member of class of persons statute/regulation designed to protect; 4. Violation of statute/regulation is a proximate cause of injury.
Martin v. Herzog (pg 102) (violation of statutory signal that contributes to accident is negligence in itself) OGuin v. Bingham County (pg. 104)(once determined that statutory duty applies, it supplants the reasonable person standard encompassed in the concept of ordinary negligence. 12

Additional Factors Used for Determining the Propriety of Adopting a Statute As the Standard of Care In addition to determining that the statute clearly defines standard of care, and is intended to prevent the type of harm D caused, courts may further examine if the statute has a cause of action. When the statute creates a wholly new obligation and does not in itself purport to create a new cause of action, courts tend to give the statute no tort law effect at all. Perry v. S.N. Licensing Statutes Most courts refuse to use licensing statutes as the standard of care because the lack of a license itself does not establish the lack of due care. Effects of Non-Adoption and of Adoption of Statute Effects of Non-adoption of a Statute The judge's determination that the proffered statute should not be adopted as the standard of care does not foreclose P's recovery for negligence. The case proceeds under the usual reasonably prudent person standard of care. Effects of Adoption of the Statute and Statutory Violation In most jurisdictions, the statute replaces the usual reasonably prudent person standard of care. To determine breach, all the jury needs to find is that the statute was violated. The plaintiff does not automatically recover upon a finding of breach of the statutory standard of care because the plaintiff must still establish the other elements of a negligence cause of action. A minority of jurisdictions do not follow the negligence-per se approach. In these jurisdictions, the standard of care remains that of a reasonably prudent person and the relevant statute is simply admitted for the jury's consideration in determining whether D exercised reasonable care. The Role of Excuse Modern courts have recognized excused statutory violations. Acceptable excuses include: a sudden emergency not of the actor's making; compliance would involve greater danger than violation; the actor neither knows nor should know of the occasion for diligence; the actor has some incapacity rendering the violation reasonable; or, after reasonable efforts to comply, the party is unable to do so. In most states, a judge makes an initial determination that the proffered excuse is appropriate and the jury considers its application. If there is an excused violation, the statute no longer affects the outcome. Impson v. Structural Metals, Inc. Negligence Per Se and Children Most jurisdictions have concluded that the child standard of care should apply even where the child has violated a statute. Rather than using the statute as the standard of care, the standard is that of a reasonable child of the same age, maturity, intelligence and experience. The statutory violation may be relevant to breach of duty. Compliance with Statute
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The well-settled rule is that compliance with a statute is merely relevant evidence of reasonableness. Compliance does not establish due care. Criticisms of the Negligence Per Se Doctrine Although the negligence-per-se doctrine has been widely accepted, there has been some judicial and scholarly criticism of the doctrine. One key criticism arises from the widely divergent impact the violation of a criminal statute has in a criminal prosecution from that in a tort case. Additionally, the negligence-per-se doctrine greatly constricts the jury's traditional role of determining breach and often invests the trial judge with broad discretion. Finally, some contend that the negligence-per-se doctrine is an inappropriate judicial encroachment upon the domain of the legislature.

B.

Breach of Duty

Determining Breach of Duty Would reasonable person have foreseen a risk of harm? If no, then not negligent If yes, move on to #2 Would reasonable person have taken steps to avoid or minimize the risk? If no, then not negligent If yes, then negligent

Slip and Fall Cases Legal Standard Premises owner negligent if: Created dangerous condition, or Had actual or constructive knowledge of dangerous condition, And Failed to take reasonable actions to minimize/eliminate risk
Thoma v. Cracker Barrel Old Country Store (pg 140 slip and fall) 40% injuries slip and fall. Wal-Mart Stores v. Wright (pg 143 - you can set stds higher that ordinary care for yourself but that should not be used as evidence of your believe of ordinary care)

Determining Breach of Duty Would reasonable person have foreseen a risk of harm? Question is not whether technically foreseeable, but how remote Would reasonable person have taken steps to avoid or minimize the risk? Value life over property Risk-utility balancing/Learned Hand formula Community norms/customer expectations Evidence of what reasonable person would do: Internal policies Statutes/ordinances/regulations Custom
Pipher v. Parsell (pg 114 failure for driver to prevent foreseeable dangerous ( may be a breach of duty) 14

Indiana Consolidated Insurance v. Mathew (Pg 117 value life over property; lawnmover house fire case) Stinnett v. Buchele (pg 119 employers duty of care not to furnish impossible duty of absolute safe instrumentalities or place of work)

Risk-Utility: 112-22, 127-34 Breach if: B < Reduction Risk to Plaintiff + Reduction Other Risks Reduction Risk to Plaintiff = (Pdo nothing*L) (Ptake precautions*L) Reduction Risk to Others = (Pother harms do nothing*Lother harms) (Pother harms take precautions*Lother harms) B = burdens to actor of taking steps to avoid or minimize risk Includes direct costs + potential risk Potential risk = (Pnew risk *L) New risk = risk associated with avoiding or minimizing original risk P = probability harm L = magnitude of harm The Risk Calculus Negligence liability is imposed where the defendant engages in unreasonable risk creation, situations where the defendant creates risks that a reasonable person would not. This determination of unreasonableness considers the risks that should have been foreseen at the time of the defendant's conduct, not through hindsight after the harm occurred. Justifications for placing legal responsibility only on those at fault include promoting freedom of activity, maximization of innovation and economic efficiency. How is unreasonableness determined? Many adhere to Judge Learned Hand's risk calculus looking at whether the burden of avoiding the harm is less than the probability of that harm occurring multiplied by the likely seriousness of the harm if it does occur. The Hand formula was intended to be flexible. The plaintiff and the defendant often will have different views of probability, magnitude, and burden. It is ultimately for the trier of fact to undertake the balancing of these factors in order to assess the reasonableness of the defendant's conduct. Probability The probability factor seeks to measure the likelihood of the harm-causing occurrence taking place. Although probability must be considered in relation to magnitude and burden, where there is a minuscule likelihood of harm it is doubtful that the defendant breached a duty. Magnitude of the Loss The magnitude of the loss looks at the likely harm flowing from the injury-causing event when it occurs. The proper focus is neither the most severe possible harm nor the least severe; rather, it is what a reasonable person would foresee as the likely harm.
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Burden of Avoidance An analysis of burden requires consideration of such things as the costs associated with avoiding the harm, alternatives and their feasibility, the inconvenience to those involved and the extent to which society values the relevant activity. Value of the Hand Formula While the jury is not instructed to consider the Hand formula factors, they reflect the kinds of things that a jury grapples with in determining reasonableness. In addition, the attorneys when arguing the case to the jury surely raise points, such as the ease of avoiding the harm, that fit into a Hand-type analysis. Further, the Hand factors often are expressly used by judges reviewing jury verdicts. Judge Hand did not intend that the formula be quantifiable. Rather, it was to serve as a rough guide in the determination of unreasonableness.
United States v. Carroll Towing Co*

Multiple Parties: 131-34 Comparative Fault Ps recovery is not ordinarily reduced to reflect her fault when D is guilty of intentional torts, but modern trend is to reduce them in negligence and strict liability cases. Idea is for all parties to bear their share of loss. Joint and several liability in jurisdictions that practice this, P can enforce her tort claim against either tortfeasor or both. If she collects from one, then that party is typically allowed to seek in a separate action, contribution from the other D2 relative to D2 fault apportionment.

Proving and Evaluating Conduct, Notice, Custom: 135-47 The Role of Custom Custom typically refers to a well-defined and consistent way of performing a certain activity, often among a particular trade or industry. The plaintiff may try to assert the defendant's deviation from custom as evidence of lack of due care. Conversely, the defendant may try to avoid liability by showing compliance with custom. Deviation from Custom If P can persuade the jury that there is a well-established and relevant custom, the jury may consider D's deviation from custom in its determination of breach of duty. Evidence of D's deviation from custom is often powerful evidence of breach although it does not itself establish the defendant's unreasonableness. Nor does the introduction of custom evidence change the standard of care in most negligence cases. Compliance with Custom Evidence of D's compliance with custom is usually admissible as evidence of D's lack of breach. Evidence of D's compliance with customary practice does not alter the standard of care nor does it conclusively establish D's lack of unreasonableness. A jury is free to determine that the custom itself is an unreasonable one.
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The Jury Role Where reasonable minds could disagree, the jury decides whether the defendant acted unreasonably. The notion (once favored by Justice Holmes) that courts should create standards of conduct to be used in similar cases has largely been repudiated
Santiago v. First Student (pg 135 bus accident, no recollection, sum judgmt) Forsyth v. Joseph (pg 135 overspeeding skid mark, D found negligent) Duncan v. Corbetta (pg 144- proof of general custom is admissible as it tends to establish stds of which ordinary care may be judged) The T.J. Hooper (pg 145 though not yet custom, AC still found them negligence because negligence was direct cause of injury)

Res Ipsa Loquitur: 147-62 Probability Rule #1: Fact of accident suggests more likely than not negligence caused Ps harm Probability Rule #2: Defendant more likely than not = tortfeasor Majority rule: When 2+ potential Ds, no RIL unless (1) D1 = most likely tortfeasor, or (2) shared responsibility Factors Affecting Probability Analysis: Eliminating potential non-negligent causes Eliminating other potential tortfeasors P or D could have presented evidence and did not do so Exclusive control/others involvement Res Ipsa Loquitur Res ipsa loquitur, an important form of circumstantial evidence, may be relevant to a plaintiff's efforts to establish the defendant's unreasonable conduct. In most negligence cases, the plaintiff specifies what the defendant allegedly did unreasonably. Res ipsa loquitur is most important and has its greatest impact in cases where the plaintiff is unable to make specific allegations about what the defendant did wrong. The conditions traditionally required for the application of res ipsa loquitur are: an accident that normally does not happen without negligence; exclusive control of the instrumentality by the defendant; and absence of voluntary action or contribution by the plaintiff. In order for the plaintiff to have the benefit of res ipsa loquitur, she must convince the jury that each of these factors more likely than not exists. Byrne v. Boadle The case of Byrne v. Boadle [2 H. & C. 722, 159 Eng. Rep. 299 (Exch. 1863)], in which the plaintiff was seriously injured when a barrel of flour fell on him, is credited with adding res ipsa loquitur to the legal lexicon. In Byrne, neither the plaintiff nor any of the witnesses testified as to anything done by the defendant that could have led to the barrel falling. Yet the court allowed the case to proceed because of the nature of the harm-causing event and the defendant's relationship to it. Since Byrne, courts and commentators have refined the doctrine and its proof requirements. Probably Negligence A plaintiff must persuade a jury that more likely than not the harm-causing event
17

does not occur in the absence of negligence. The plaintiff does not have to eliminate all other possible causes for the harm, nor does the fact that the defendant raises possible nonnegligent causes defeat plaintiff's effort to invoke res ipsa loquitur. The key is that a reasonable jury must be able to find the likely cause was negligence. Koch v. Norris Public Power District (pg 151 Ds high voltage line broke and fell and damaged Ps property) Cosgrove v. Commonwealth Edison Co (pg 152 Power line fell and ignited leaking gas from gas line. Res ipsa loquitur for gas company but not for power co. other causes other than negligence could cause power line to go down) Warren v. Jeffries (pg 153 Probably the Defendant A plaintiff seeking to rely on res ipsa loquitur must connect the defendant to the harm. Initially, courts interpreted the control element narrowly, requiring the plaintiff to that the defendant likely had exclusive control over the harm-causing instrumentality. This element has been liberalized and it is now enough for a plaintiff to get to a jury on res ipsa loquitur if she can provide evidence showing that the defendant probably was the responsible party even if the defendant did not have exclusive control. Further, most jurisdictions no longer require the plaintiff to prove that the she did not contribute to her harm. Giles v. City of New Haven (pg 156 Collins v. Superior Air Ground Ambulance Service (160 The Effect and Value of Res Ipsa Loquitur In the majority of states, upon proof of res ipsa loquitur by the plaintiff, a jury may elect to infer that the defendant was unreasonable if it so chooses. With res ipsa loquitur, the case gets to a jury and the jury decides whether the defendant was more likely than not at fault. A defendant has not automatically lost on the issue of breach of duty once a jury finds the res ipsa loquitur elements have been proven. The defendant's evidence of her reasonable conduct may be persuasive enough for a jury to conclude that the defendant was probably not at fault. The Role of the Defendant's Superior Knowledge Although the defendant's superior knowledge is a compelling justification for the application of res ipsa loquitur, most courts and the Restatement do not require that the defendant have greater access to the facts than the plaintiff for the doctrine to apply. Indeed, most jurisdictions permit a plaintiff to attempt to prove the defendant's unreasonable conduct with evidence of specific wrongdoing as well as through the use of res ipsa loquitur.

C.

*Injury: 163-65 The plaintiff who proves that the defendants conduct was negligent but fails to show that actual damages resulted from it, will lose the case.
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Right v. Breen (pg 163 merely negligent without proof of an actual injury is generally not compensable nominal damages).

D.

Actual Cause: 165-85

CAUSE-IN-FACT Overview It is generally accepted that tort liability is dependant on proof that the defendant's culpable conduct or activity was the actual cause of the plaintiff's injury. But For Analysis The traditional and still dominant test for actual causation is the but for test. For the defendant to be held liable, the plaintiff must establish that but for the defendant's culpable conduct or activity the plaintiff would not have been injured. Substantial Factor Test The substantial factor test requires that the defendant materially contributed to the plaintiff's injury. [See Anderson v. Minneapolis, St. P. & S. St. M. Railroad Co., The substantial factor test is used by many courts as a supplement to the but for test when redundant multiple causes would preclude liability under the but for analysis. For examples, if A starts a fire on the left side of B's house and C starts a fire on the right side, and both fires merge concurrently and destroy B's house, then neither fire is the but for cause of the destruction. In the absence of either fire, B's house would have been destroyed at the same time by the remaining fire. Since both causes are redundant, neither is a but for cause, a result that potentially precludes the plaintiff's recovery against either defendant. In order to avoid this inequitable result, the substantial factor test is allowed as an alternative proof of causation for redundant causes. The Restatement and some jurisdictions utilize the substantial factor test to convey to the jury the requirement of both actual and legal causation in all cases. Nevertheless, the Restatement still requires that, except in redundant cause cases, but for should effectively be established. [See Restatement 431-433.] Scenario #1 Action D1s Negligence D2s Negligence Injury Broken Leg Broken Arm

D1 liable for broken leg and D2 liable for broken arm Scenario #2 Action D1s Negligence Broken Leg and Arm D2s Negligence
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Injury

D1 and D2 both liable for broken leg and arm Scenario #3 Action D1s Negligence D1 and D2s Negligence Injury Broken Leg Broken Arm

D1 liable for broken leg. Both D1 and D2 liable for broken arm. Scenario #4 Scenario #1, but dont know what harm each defendant caused D1 and D2 both liable for full loss (Landers v. East Texas) Scenario #5 Two negligent defendants* Neither is a but-for cause (1) In absence of D1s negligence, D2s negligence would have caused same harm, and vice versa Each is a sufficient but not necessary cause (1) In a world without D2, D1s negligence would have caused Ps harm, and vice versa

* Alternative scenario: Two forces one negligent defendant and one non-negligent force (e.g., mother nature) Ds negligence a cause of Ps injury if a substantial factor (Anderson) If both D1 and D2s negligence are considered a substantial factor, both are liable Summary When 2+Tortfeasors When divisible injury (Scenario #1): Apportion damages based on causality, with each D liable only for injuries it alone caused When indivisible injury: Both Ds liable Indivisible when:

(1) Single injury and each D a but-for cause (Scenario #2), (2) ) Single injury and each D a substantial factor (Scenario #5), (3) Divisible injury, but dont know which D caused what injury (Scenario #3, Landers)
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As between Ds, apportion liability based on comparative fault When unknown which negligent defendant caused harm: Ds jointly liable. Apportion liability based on comparative fault. (Summers)

Summary When 2+Tortfeasors When divisible injury (Scenario #1): Apportion damages based on causality, with each D liable only for injuries it alone caused When indivisible injury: Both Ds liable Indivisible when:

(1) Single injury and each D a but-for cause (Scenario #2), (2) Single injury and each D a substantial factor (Scenario #5), (3) Divisible injury, but dont know which D caused what injury (Scenario #4, Landers) As between Ds, apportion liability based on comparative fault

Scenario 6 Two defendants acted negligently, but only 1 caused harm to P. Dont know which one caused the harm. Each Ds negligence considered a cause of Ps injury (unless one can prove otherwise). (Summers v. Tice)

Summary When 2+Tortfeasors When divisible injury (Scenario #1): Apportion damages based on causality, with each D liable only for injuries it alone caused When indivisible injury: Both Ds liable Indivisible when:

(1) Single injury and each D a but-for cause (Scenario #2), (2) ) Single injury and each D a substantial factor (Scenario #5), (3) Divisible injury, but dont know which D caused what injury (Scenario #3, Landers) As between Ds, apportion liability based on comparative fault When unknown which negligent defendant caused harm:
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Ds jointly liable. Apportion liability based on comparative fault. (Summers)

Hale v. Ostrow pg 165 Salinetro v. Nystrom pg 167 Landers v. East TX pg 170 Anderson v. MN pg 171 Summers v. Tice* - pg 175 (2 shots from hunting pals one hit eye one hit lipP couldnt prove whose pellet hit his eyect ruled that burden shifts to D1 and D2- ruleif Ds are independent tortfeasors and thus each liable for the damages caused by him alone, and at least, where the matter of apportionmnent is incapable of proof, the innocent wronged party should not be deprived of his right to redress. The wrongdoers should be left to work out between themselves, any apportionment. ) Lord v. Lovett pg 177 Alexander v. Scheid - 182 Dillon v. Evanston Hospital - 183

E.

Proximate Cause

*Scope of Risk: 186-203

general nature as the foreseeable risk created by the defendants negligence (Medcalf- condo- malfunctioning buzzer not foreseeable to cause rape of victim) An actors liability is limited to those physical harms that result from the risks that made the actors conduct tortious (Restatement (Third) of Torts) Liability must be rejected unless a reasonable person would have reasonably foreseen and avoided harm of the same general kind actually suffered by the P (Note 4) (Abrams- pregnant lady lost child and in coma for 2 weeks when friend taking her to hospital drove through red light and was struck by drunk driver city did not sent ambulance- not foreseeable) The D who negligently creates a risk to the P is subject to L when the risk or a similar one results in harm, but not when some entirely different risk eventuates in an entirely different harm. (Note 4)
Scope of risk--Liability for negligence is liability for the unreasonable risks the defendant created, not for reasonable risks or for those that were unforeseeable.

Proximate Cause Scope of Risk

Harm not w/in scope of risk if: Reasonable person in similar circumstances would not have foreseen harm or risk of the same general type; Reasonable person would not have foreseen harm or risk of the same general type, but not to the general class of persons that includes P; or Reasonable person would have foreseen general type of harm or risk, but would not have taken greater precautions to avoid it than D took

Proximate Cause Scope of Risk Harm w/in scope of risk if: (1) Reasonable person in similar circumstances would have
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 foreseen harm or risk (a) of same general type, and (b) to the general class of persons that includes the P, and taken greater precautions to avoid it than D took * General rule: Actual harm can be w/in scope of risk even if exact harm, extent of harm, or exact manner of its occurrence not foreseeable (2) Reasons of policy/fairness support treating Ds negligence as proximate cause, even if harm to P not foreseeable

Proximate Cause -- Summary General rule: Proximate cause if w/in scope of risk created by Ds negligence *Not proximate cause if P in position of relative safety Alternative Approaches: Multifactor test (Palsgraf dissent) 2) General rule of law deems Ds negligence proximate cause (e.g., Rescue Doctrine) 3) Intervening Acts General rule of law deems intervening act a superseding cause (e.g., traditional suicide rule) Some courts focus on foreseeability intervening act (Watson- D negligently derailed gasoline tank car that exploded when another party threw a match. Not foreseeable)
1)

Foreseeability Test Definition The leading test for proximate cause focuses on whether the defendant should have reasonably foreseen, as a risk of her conduct, the general consequences or type of harm suffered by the plaintiff. In essence, the foreseeable harm test requires (1) a reasonably foreseeable result or type of harm, and (2) no superseding intervening force. The extent and the precise manner in which the harm occurs need not be foreseeable. [See, e.g., Wagon Mound No. 1 (Overseas Tankship (U.K.), Ltd. v. Morts Dock & Engineering Co., Ltd., [1961] A.C. 388).] Egg-shell Plaintiff Personal Injury Rule While foreseeability of consequences is generally required to find liability, courts make an exception and do not require that the type of personal injury suffered by a victim be foreseeable. [See, e.g., Keegan v. Minneapolis & St. Louis R.R. Co., 78 N.W. 965 (Minn. 1899).] The defendant is liable even if the victim suffers physical injury far more severe (e.g., heart attack) than the ordinary person would be anticipated to have suffered from the accident. More controversial is whether psychological sensitivity should also be covered under the egg-shell plaintiff rule. Some courts have so held, such as when a minor automobile accident resulted in the plaintiff's suffering a severe psychological breakdown.
23

[See Steinhauser v. Hertz Corp., 421 F.2d 1169 (2d Cir. 1970).] The Direct Test The direct test would find proximate cause satisfied whenever the defendant's negligence caused the injury without any intervening force. While once very widely accepted [see Polemis, Furness, Wilty and Co., 3 K.B. 560 (1921)], it is questionable whether the direct test has any viability in contemporary law. Practical Politics and Rough Sense of Justice Test In a famous dissent to Chief Justice Cardozo's opinion in the renowned Palsgraf v. Long Island R.R., 248 N.Y. 339 (N.Y. 1928), decision, Justice Andrews considered the appropriate tests for proximate cause. Ultimately he concluded that proximate cause is a question of public policy, fairness and justice, which cannot be reduced to any mechanical formula. On occasion, courts have explicitly quoted Justice Andrews' assertion that proximate cause is a matter of public policy and justice and not logic to justify rulings on proximate cause that could not be explained consistently with the application of other standards, such as the foreseeability test. [See, e.g., Kinsman Transit Co. v. City of Buffalo (Kinsman II), 388 F.2d 821 (2d Cir. 1968).] Restatement Test The Restatement utilizes the term legal rather than proximate cause. Restatement 431 defines an actor's negligent conduct to be a legal cause if (a) his conduct is a substantial factor in bringing about the harm, and (b) there is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in harm. The Restatement utilizes the substantial factor requirement to encompass both actual cause-in-fact and causation in the popular sense, in which there always lurks the idea of responsibility. Section 433 lists considerations important in determining whether conduct is a substantial factor including: the number of other factors which contribute to harm; whether the defendant's conduct has created a continuous and active force; and the lapse of time. Once the tortfeasor's conduct is established as a substantial factor for the plaintiff's injury, Restatement 435 indicates that liability will not be restricted merely because the actor could not foresee the extent or the manner in which the harm occurred. The defendant will not be held the legal cause of the harm under 433, however, if looking back from the harm to the actor's negligent conduct, it appears to the court highly extraordinary that it should have brought about the harm. While the Restatement's principle of legal cause may be consistent with many decisions, the articulated comprehensive theory itself, unlike many provisions of the Restatement, has failed to gain general acceptance. Exam notediscuss restatement but dispose of as minority view

Intervening Causes: 203-17 An intervening force is a new force which joins with the defendant's conduct to cause the plaintiff's injury. It is considered intervening because it has occurred sequentially in time after the defendant's conduct. If the intervening force is characterized as superseding, proximate cause is not established even though the type of harm is foreseeable. An intervening force is generally characterized as superseding only when its occurrence appears extraordinary under the
24

circumstances. Courts will often use the metaphorical rather than principled language here: a superseding cause breaks the causal chain. Delaney v. Reynolds (ct departed from the traditional view that suicide not reasonably foreseeable and a superseding cause) Derdiarian v. Felix Contracting Corp (D insisted that P set up kettle of liquid enamel boiling to 400 degrees at job site facing on-coming traffic with little barricade. Epileptic driver who did not take meds, experienced seizure and crashed through single wooden horse-type barricade and struck plaintiff. Rule-an intervening act may not serve as a superseding cause, and relieve an actor of responsibility, where the risk of the intervening act occurring is the very same risk which renders the actor negligent.) Ventricelli v. Kinney (D leased P car that trunk did not close satisfactorily. Another driver ran into P while P was attempting to slam the lid shut.Jury ruled for P, Appellate court reversed and dismissed) Marshall v. Nugent (pg. 213)(P was passenger in car that got run off the road by truck driver D on an icy and snowy road. D while trying to pull car partially blocked road. While P was walking, oncoming car while trying to avoid truck struck P. P sued both truck driver and oncoming car driver). Proximate cause rules are all or nothing rules. So first actor if superseding intervening act is found may escape all liability while second actor carries it all. Key point to make with regards to proximate cause / scope of risk analysis is that this area of law developed before joint and several liability systems. Joint and several liability rules also arose before the development of comparative fault systems. Comparative fault systems are capable of apportioning liability among different tortfeasors , imposing greater liability on those with more fault. DEFENSES TO NEGLIGENCE Traditionally, there were only two defenses to negligence: contributory negligence and assumption of risk. Both constituted complete defenses and completely barred the plaintiff from recovery. In all but a handful of states, contributory negligence has been converted by statute or judicial ruling into comparative negligence. Unlike contributory negligence, comparative negligence need not be a complete bar to the plaintiff's recovery, but acts only as partial bar resulting in a percentage deduction from otherwise recoverable damages.

F.

Contributory & Comparative Negligence: 218-36 Comparative Fault Some Wrinkles Circumstances where we dont consider Ps negligence: D has duty to protect P from Ps own negligence (McNamara- hung herself in state hospital no comparative judgment where D duty includes preventing P from self abusive/destructive act ) D has duty to protect P from Ps past negligence Policy reasons P has no duty to protect self (Christensen ( pervert 26 yr old teacher with 13yr student asserting contributory fault), LeRoy Fibre (P stacked
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flax on land near railroadclaimed RR negligently emitted sparks that caused ) [P as rescuer] [D has last clear chance to avoid harm]

Circumstances were Ps negligence is bar to liability P committing illegal activity (Barker 15 yr old pipe bomb maker with firecrackers bought from 9 yr old kid- sued kid and family no recovery ) [Failure to mitigate damages] Contributory Negligence Contributory negligence is conduct on the part of the plaintiff which falls below the standard of conduct to which he should conform for his own protection, and which is a legally contributing cause . . . in bringing about the plaintiff's harm. (Restatement 463.] Contributory negligence is a complete defense to negligence. Rescuers A plaintiff may take extraordinary risks when attempting a rescue without being considered contributorily negligent. Emergency situation is one of the factors taken into account when evaluating the plaintiffs conduct. No defense for intentional torts Contributory is never a defense to an action for an intentional tort or for willful or wanton misconduct. Last Clear Chance Doctrine The last clear chance doctrine instructs the court to ignore the plaintiff's contributory negligence if the defendant's negligence occurred after the plaintiff's contributory negligence. See Davies v. Mann, 10 M&W 546, 152 Eng. Rep. 588 (1842). Most jurisdictions reject the last clear chance doctrine when replacing contributory negligence with comparative negligence. In almost all states, contributory negligence has been replaced by some form of comparative negligence, often called comparative fault. [See Restatement (Third) of Torts, Apportionment of Liability 7, endorsing comparative negligence.] Under comparative negligence, the conduct on the part of the plaintiff which falls below the standard of conduct which he should conform to for his own protection and which is a legally contributing cause . . . in bringing about the plaintiff's harm is only a partial bar to the plaintiff's recovery. Comparative negligence reduces the plaintiff's recovery by the percentage of responsibility for the injury attributable to the plaintiff. Comparative fault statutes New York: In any action to recover damages for personal injury, injury to the property, or wrongful death, the culpable conduct attributable to the claimant or to the decedent, including contributory negligence or assumption of risk, shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages.
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Wisconsin: Contributory negligence does not bar recovery in an action by any person or the persons legal representative to recover damages for negligence resulting in death or in injury to person or property, if that negligence was not greater than the negligence of the person against whom recovery is sought, but any damages shall be diminished in the proportion to the amount of negligence attributed to the person recovering . . . . North Dakota: Contributory fault does not bar recovery in an action by any person to recover damages for death or injury to person or property unless the fault was as great as the combined fault of all other persons who contribute to the injury, but any damages allowed must be diminished in proportion to the amount of contributing fault attributable to the person recovering.

New York P (5%): $95K from all B (10%): $90K from all C (40%): $60K from all D (45%): $55K from all

Wisconsin P: $95K from all B: $90K from C and D; nothing from P C: $60K from D; nothing from P and B D: $0

North Dakota P: $95K from all B: $90K from all C: $60K from all D: $55K from all

Pure Comparative Negligence Under pure comparative negligence plaintiffs can recover some percentage from liable defendants regardless of the extent of their own negligence. Modified Comparative Negligence Under the modified system, plaintiffs are allowed a partial recovery just as in pure comparative negligence until the plaintiff is either more negligent (greater than 50% at fault) than the defendant(s) or in other states equal to the negligence of the defendant(s).

G.

Assumption of Risk: 239-51 Along with contributory negligence, assumption of risk has traditionally existed as a complete defense to negligence. There are thus three basic elements to the assumption
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of risk. The plaintiff must (1)know a particular risk and (2) voluntarily (3) assume it. [See Restatement 496C Classifications of Assumption of Risk Express Versus Implied Assumption of Risk Assumption of risk is generally divided into two types: express and implied. Express assumption of risk exists when, by contract or otherwise, a plaintiff explicitly agrees to accept a risk. [See Restatement 496B.] Implied assumption of risk exists when the plaintiff's voluntary exposure to risk is derived merely from her behavior, and not from explicit assent. [See Restatement 496C.]
1.

Contractual or Express Assumption of Risk Scenario: P consents to waiving Ds liability for consequences of Ds negligence (Boyle cancer pt went to unorthodox doc for non FDA approved cancer meds.) Enforceability of waiver: Governed by contract law (Tunkl- policy reasonscant accept immunity from careless failure to provide hospital service that we all depend on) o Compulsory assumption of risk o Contract of adhesion o Mistake/misrepresentation/fraud o Void for being against public policy Consequences: D not liability if waiver enforceable and Ds actions within scope of waiver

If an assumption of risk is characterized as express, it can be invalidated if it is found contrary to public policy. Conversely, courts are likely to uphold express assumption of risk when the plaintiff's participation is clearly voluntary, such as the decision to engage in risky recreational pursuits. [See Restatement 496B] 2. Implied Assumption of Risk a) Primary Assumption or Risk (Avila community college baseball player got whacked in the head- goes with the territory no duty) Scenario: P consents to risks deemed inherent in activity Consequences: Impacts scope of Ds legal duty No duty to minimize or eliminate inherent risks Duty only to not act recklessly or increase risks beyond inherent risk b) Secondary Assumption of Risk (Betts- housekeeper tripped over items on the stairs, fell down and suffered serious injuries. No difference b/w contributory negligence or assumption of risk when raised as defense merged into comparative negligence system) Scenario: P voluntarily encounters risk created by Ds negligence Consequences: D still liable, but Ps recovery reduced if P contributorily negligent in voluntarily encountering risk The modern trend is to allow implied assumption of risk to be absorbed into comparative negligence. This allows the jury to treat assumption of risk as a
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partial defense. [See, e.g., Knight v. Jewett] Immunities Overview An immunity protects a defendant from tort liability. Unlike a defense, it is not dependent on the plaintiff's behavior, but on the defendant's status or relationship to the plaintiff.

Charitable Immunity Historically, charitable organizations were immune from tort liability. Increasingly, this immunity has been abrogated. Spousal Immunity Historically, spouses could not sue each other. The majority of states have eliminated spousal immunity Parent-Child Immunity Parent-child immunity precludes tort actions between parents and their non-adult children. Unlike spousal immunity, which has been eliminated in most states, parent-child immunity still exists in some form in many jurisdictions Governmental Immunity Governmental immunity protects the government from tort liability. Under the common law, the immunities were complete and prevented any tort suits against the government. Many states and the federal government have passed detailed statutes modifying the immunities in specific instances. One general provision normally included allows immunity for discretionary functions but not ministerial acts. Discretionary functions are policy-making decisions. Ministerial acts constitute government conduct which implements or executes policy decisions.

H.

Statute of Limitations; Statutory Compliance: 252-57 The rule of Shearin - will begin running when the P can sue on a claim ( may not be fair to P as P may not know) (Doc left sponge inside pt- multiple surgeries laterescaped cause time ran out and he didnt discover his own mistake..) Discovery rule - delays actual accrual of the claim until all the elements of the tort are preset and the plaintiff discovers, or a reasonable person should discover, both the injury and defendants role in causing it. Intentionally going light in this section

IV.

DAMAGES: 587-594 (skip McDougald v. Garber), 595-604

A.

Compensatory Damages Damages in torts constitute the money awarded to the person injured by the tort of another.Tort damages include nominal damages,compensatory damages, and punitive damages.
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Nominal damages are a symbolic award (often one dollar) given to the plaintiff when liability for a tort is established but no actual harm is proven. Compensatory damages are awarded to a person to indemnify for personal injury, property, and other economic harm sustained by the victim. Compensatory damages are awarded for both pecuniary and non-pecuniary losses. Unlike economic loss, pain and suffering, and other forms of mental distress have no obvious monetary equivalent. This valuation problem has generated controversy over the desirability of compensating for pain and suffering at all. Personal Injury Personal injury victims under tort law can be compensated for (1) medical expenses; (2) lost wages or impaired earning capacity; (3) other incidental economic consequences caused by the injury; and (4) pain and suffering. Property Damages Damages for permanent deprivation or destruction of property are generally measured by the market value of the property at the time of the tort. If real or personal property is damaged but not destroyed, courts generally compensate the victim for the diminished market value of the property but sometimes award the cost of repairs instead of diminished value. Mitigation or the Doctrine of Avoidable Consequences Injured victims have a responsibility to act reasonably to limit or mitigate losses incurred. If a plaintiff fails to act reasonably to mitigate injuries, the defendant will not be held liable for incremental losses that otherwise could have been avoided.

Bodily Injury: Past and future medical expenses Pain and suffering Lost wages Property Damage: If permanently dispossessed of property: FMV at time of loss If temporarily disposed: rental value during time of dispossession If property damages: Either (1) difference in FMV pre and post-damage, or (2) cost of repair Adjustments: Interest for past expenses/losses Present value of future expenses/losses Plaintiff aware of loss When P is aware, recovery is allowed in most courts Foradori v. Harris When P is unaware, there is no tradition of awarding damages for that loss McDougald v. Garber, but recently, courts have gone both ways
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B.

Capping and limiting Damages Wave of statutory limits on torts some kind of cap or limit has been enacted in well over half the United States Adjustments in Damages Avoidable consequences mitigation rule requires P to exercise reasonable care to minimize damages and denies a recovery to the extent that damages should have been but were not reasonably minimized or avoided. Comparative fault rules reduce damages in proportion to the P fault. Avoidable consequences rules reduce damages for discrete identifiable items of loss caused by the Ps fault. Comparative negligence rules are fault apportionment rules while avoidable consequences rules are causal apportionment rules.

C.

Punitive Damages

Punitive damages are discretionary and awarded when a tort is committed with malice. The United States Supreme Court has held that punitive damages must bear some relationship to potential harm. Also, many states limit punitive damages awards Punitive damages are awarded to punish and deter particularly egregious conduct. Collateral Source Rule Under traditional common law doctrine, the plaintiff's recovery against the defendant is not affected by compensation the plaintiff received for the loss from other sources such as insurance. Such collateral sources for recovery are not disclosed to the jury under the collateral source rule. Numerous reform statutes, most notably in the context of medical malpractice, now reject the collateral source rule and allow the jury to consider such insurance payouts and deduct them from the defendant's liability. V. ADDING COMPLEXITY TO NEGLIGENCE CLAIMS

A.

Duty of Care Revisited: Limiting or Expanding the Duty of Care Landowners: 263-76 Overview Under the common law approach, the measure of the duty owed depends on the status of the person entering the land whether the entrant is a trespasser, a licensee, or an invitee. The status of the person entering the land determines the standard of care owed by the land occupier. Some jurisdictions have rejected the status approach to liability, using a generalized duty of ordinary care instead. The Common Law Status Approach The common law approach to landowner liability measures the duty owed by a
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land occupier to persons entering the property by the status of the entrant. Because of the value attached to private land ownership, the law developed in a way that was highly protective of these interests. Trespassers A trespasser is one who enters or remains on the property in the possession of another without the permission (express or implied) of the land occupier. The duty owed to trespassers was (and in many ways remains) extremely limited. The only obligation initially imposed on land possessors was to refrain from willfully, wanton or reckless conduct-- harming the trespasser. Courts expanded the duty owed to trespassers to include requiring warnings about traps. At the outset, the concept of traps was narrowly defined. More recently, courts have engaged in some creativity, adopting a broader interpretation of trap. Who are they: Not invited unto property and no legal right to be there Standard of care: General duty refrain from willful, wanton or reckless conduct (some jrd expand the duty owed to include requiring warning traps Duty ordinary care once discover (or had reason to know of) trespassers presence and in peril

about

Frequent or Known Trespassers In most common law jurisdictions, the traditional rule has been altered in the case of known or frequent trespassers. Where a land occupier actually is aware of the presence of a trespasser and knows that the trespasser is approaching a nonevident artificial (human made) condition, the land occupier is obligated to warn the trespasser if there is danger of serious bodily harm or death. Also, if the land occupier is on notice of frequent trespassing, or has reason to know of such, an obligation to warn of hidden dangers known to the land possessor and risking serious injury or death may be imposed. No warning need be given of conditions on the land that a trespasser would be expected to discover or which are inherent in the use of the land. Further, the land occupier who knows of a trespasser's presence must use reasonable care for the protection of the trespasser in carrying on activities. Child Trespassers The rules barring recovery for the majority of injured trespassing children caused discomfort for the courts. By the 1870s, courts began broadening the land possessor's duty to trespassing children in limited situations. This more lenient approach has become known as the attractive nuisance doctrine. Under the Restatement a child trespasser will be owed a duty of ordinary care if a judge balances several factors and finds that they support providing the child trespasser special treatment. Bennett v. Stanley (mother who ran to save son drowned in neighbors pool-higher duty of care to owners for child trespassers) Licensees A licensee is someone who enters the land with the express or implied consent of the land possessor, as is the case with social guests. The licensee takes the
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property in the condition in which the land possessor uses it. A land possessor may be liable to a licensee injured by a condition on the property where the land possessor knows of a dangerous condition on the property, fails to make the condition safe or to warn the licensee about the risk involved, and the licensee does not know about the danger nor would be expected to discover the dangerous condition. Where the presence of a licensee is known or should be known to the defendant, most jurisdictions require land possessors to use reasonable care in carrying out activities on the property. Who are they: Everyone else (including social guests) Standard of care: Same as duty owed trespasser Invitees There are two primary types of invitees: business invitees and public invitees. Business invitees are on the premises for the potential financial benefit of the land occupier. Public invitees are on land held open to the public at large. As to invitees, land possessors must use reasonable care in maintaining the premises and in their activities. This often entails taking affirmative steps to discover dangers on the property. The obligation of the land possessor to an invitee then is one of reasonable care. Who are they: Invited by landowner for economic purpose or premises open to general public Standard of care: Duty of ordinary care Some jurisdictions have lowered standard of care for people who trespass the land for recreational purpose. Determining Status The determination of the plaintiff's status can be challenging, and has a profound impact on the plaintiff's ability to recover. Where there are disputed facts affecting the plaintiff's status, the jury ultimately decides the appropriate classification. Further, a plaintiff's status can change based on where she is at the time of her injury. A Unitary Standard A significant minority of states have rejected the common-law status approach. California was the first state to replace the status approach to land possessor liability with a generalized reasonable person standard. Under this approach a duty of reasonable care is owed any land entrant regardless of status. Some jurisdictions have elected to take a middle approach of merging the licensee and invitee categories while retaining the trespasser classification. There is a significant litigation difference between the common-law approach and that of the generalized reasonableness standard: the unitary standard permits more cases to get to the jury than the status approach. Land Possessor Duty to Those Outside the Land The common law rule provides that a land possessor owes no duty to those outside the land for natural conditions on the land. Where harm is occasioned by an artificial condition or the land possessor's activity, however, a duty is
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recognized. Some jurisdictions have rejected the no-duty rule regarding natural conditions and have replaced it with a generalized duty of reasonable care. Other Modification to Duty of Care Sovereign immunity NY first state to waive it, several states followed Immunity for charities (not for profit hospitals, schools, ) public policy to allow charity to focus on charity activities. Most states have abolishedsome states have limited immunity eg Texas Spousal immunity Tx no spouse immunity Parent child immunity ( parent and unmarried minor child once child attained majority this went away) majority of states have done away with it- Texas is one of few states that still have limited immunity (mainly applies to negligence) Duty of Possessor of Land to Those on the Premises Duties Owed
Status of Element Undiscovered Trespasser Discovered or Anticipated Trespasser Child ( if presence on land foreseeableattractive nuisance doctrine) Licensee (including social guest Invitee (e.g. member of public, business visitor) Artificial Conditions Duty to avoid intentional wanton and willful harm Duty to warn of or make safe known conditions if nonobvious and highly dangerous Duty to warn or make safe if foreseeable risk to child outweighs expense of eliminating danger Duty to warn of or make safe known conditions if nonobvious and dangerous Duty to make reasonable inspections to discover nonobvious dangerous conditions and warn of or make them safe Natural Conditions No duty No duty Active Operations No duty Duty of reasonable care

No duty (unless child also qualifies as licensee or invitee

Duty of reasonable care

Duty to warn of or make safe known conditions if nonobvious and dangerous Duty to make reasonable inspections to discover nonobvious dangerous conditions and warn of or make them safe

Duty of reasonable care

Duty of reasonable care

Landlord-Tenant Relations Initially the law of property governed the landlord-tenant relationship and, because the lease was viewed as a complete conveyance of the property investing full control in the tenant during the duration of the leasehold, the lessor owed no tort duty to the lessee. Now, all jurisdictions have come to recognize some or all of the following exceptions: common areas, negligent repairs, undisclosed
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dangerous conditions known to the lessor, lessor's covenant to repair, premises leased for admission to the public, and dangerous condition to persons outside the leased premises. Most jurisdictions have required a plaintiff to fall within one of these recognized exceptions in order to establish a tort duty owing from the landlord. Some jurisdictions, however, have expanded landlord liability to the point that a landlord owes a duty of reasonable care to all on the land regarding conditions on the leased premises.

Nonfeasance: 347-358 (skip DeShaney), 371-73 (section 3), 340-41 (Note on Public Duty Doctrine) Nonfeasance General Rule Nonfeasance D owes no duty to Plaintiff to take active or affirmative steps to protect P harm Typically, there is no duty owed in a nonfeasance context. Nonfeasance is generally the failure to intervene to confer a benefit upon another. Misfeasance often consists of affirmative acts of risk-creating conduct, doing something that a reasonable person would not do. Misfeasance can also be shown by a negligent omission failing to do something that a reasonable person would have done. Either risk-creating affirmative acts or negligent omissions generally lead to the finding of a duty. A defendant who is sued based on his nonfeasance has not created the risks that ultimately injure the plaintiff; rather, the defendant has failed to prevent harm caused by some other source from occurring. Typically, nonfeasance-based actions arise where the plaintiff contends that the defendant should have intervened to rescue the plaintiff, or where the claim is that the defendant should have prevented harm to the plaintiff by controlling a third party or by taking measures to protect the plaintiff from injury. Courts will find a duty in these contexts only in limited situations. Yania v. Bigan (D apparently taunted decedent and decedent jumped from the top of a side wall into a body of water and drowned. ruling similar to the traditional suicide case i.e unforeseeable. Did not owe P a duty to rescue and did not cause the danger or injury). Rochas ( kid was encouraged by frat brothers to jump into river from top of cliff when he couldnt swimhe drownedno duty) Podias(3 friends who had been drinking struck cyclist with their car at about 2am in the morning. All had cell phones but did not call for help. They left the scene another motorist ran over the already injured D and ultimately killed him--) When you drive, you are exposing others to risk that you may hit them With respect to children, we dont view the childs action as the sole reason for their action. We view the action/inaction of the adult as contributing or a proximate cause of the childs action.
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Where do you draw the linemore driven by policy or intuitiona judgment on whether the D should be responsibleif not, then we respect the D personal autonomy. You might disagree with the courts view and belief but you would base that on? o o o People should not count on non-professionals for rescue Circle of potentially liable non-rescuers would be difficult to draw Altruism makes the problem a small one and liability might actually reduce the number of altruistic responses by depriving people of credit for altruism

Exceptions to Nonfeasance No duty rule: o when your actions or conduct creates the risk o when your conduct whether negligent or not caused risk o Prior conduct harms P o statute/ordinance requires D affirmatively protect P o voluntarily undertook to care for P (Wakulich) o Special formal/relationship o Relationship based on fairness principles (Podias) o Action as undertaking + reliance (Florence, Kircher) Duty to not unreasonably interfere w/others attempts to help.* most Cts distinguish between this exception and the rest above. Wakulich v. Mraz (16 yr old overdosed [and ultimately died] on entire bottle of Goldshlager when enticed by 21 and 18 yr old friends in their home. Lost consciousness, friends provided little help by removing her vomit saturated blouse and placing pillow under her head but did not call 911 or let others do. D voluntarily assumed duty to care for decedent and failed) Podias v. Mairs (D with 2 friends had been drinking at another friends home. Apparently on their way home, D hit a cyclist. The 3 all had cell phones and no one called for help. They left the scene and another motorist ran over decedent ultimately killing himcourt imposed a duty here claiming..it the the degree of defendants involvement, coupled with the serious peril threatening imminent death to another that might have been avoided with little effort and inconvenience, suggested by the evidence, that in our view creates a sufficient relation to impose a duty of action. )

Protection from Third Persons: 376-86 (skip Note: Duties of Colleges), 387-91, 398-403 Duty to Protect from Third Parties Scenario 1: Based on relationship b/w P and D (Iseberg, Posecai) Special relationship Risk arises w/in scope of relationship Foreseeable risk
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*Risk must be imminent when special relationship = employer-employee Scenario 2: Based on relationship b/w D and third party Special relationship + ability to control + foreseeable risk to P *However, courts typically characterize duty to protect as duty to control third party, not duty to warn P *Reminder: Duty to protect if affirmative act creates risk (Brigance) or falls under one of other exceptions to no duty rule Iseberg v Gross - pg 376 Fact: (former disgruntled business partner (D) told another former partner of his intention to kill decedent. Informed partner did not notify or warn P and D ultimately shoots P to death. no duty no special relationship) Special relationship: no Risk arises w/in scope: no Foreseeable risk: yes Posecai v. Wal-Mart pg 380 Fact: Shopper at Sams club was robbed at the parking lot at gun point- issue whether D owed duty to P and risk was foreseeable Risk arises w/in scope: yes Foreseeable risk: no *ct used a balancing approach to study all the benefit to walmart/sams club for additional security and the burden Why did the question of foreseeability get taken away from the jury? A. We probably think for policy reasons that we should also protect the interest of businesses and that jurors may be unduly sympathetic. What if the neighborhood was very unsafe? B. Then the foreseeability element may have been met When relationship between parties fall into 2 different special relationships, there is no black letter rule on which relationship will be uses as a basis for the analysis. Marquay v. Eno- pg 385 Fact: (3 female students allege that teachers or sports coach had assaulted, exploited or sexually abused them- duty exists) Special relationship: yes Risk arises w/in scope: yes Foreseeable risk: yes Remember, scope of relationship is limited by the circumstances (e.g- when the students are in the school) Landlord Tenant Courts are all over the place on this Courts tend to be of the view that it is more of a contract issue and tenants can buy additional security on their own
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Cases on landlord that rented to a mental clinic type tenantresident stabbed another, Court found landlord liable. Risk was foreseeable.. Dudley pg 388 Fact: (Violent career criminal in halfway house was essentially unsupervised and broke into a neighboring apartment, beat and raped and killed decedent. Halfway house was custodian in charge and had a special relationship and duty) Special relationship: yes Risk w/in scope: yes Foreseeable risk: yes Black letter rule: Do family members have a duty to warn someone if they know a family member to be dangerous? No- see Eric J v. Betty M. Courts tend to take the view that family members are not usually able to control other family members situation may be different if dangerous weapons are left carelessly within access of known dangerous family member Employer Employee Brigance case debrief pg 398 Fact: bar owner served alcohol to a group of minors one of whom cause an accident injuring P- rule: one who sells intoxicating beverages for on the premises consumption has a duty to exercise reasonable care not to sell liquor to a noticeably intoxicated person. Special relationship: yes Risk arises w/in scope: yes Foreseeable risk: yes

B.

Vicarious Liability: 458-60, 471-79, 483-84 (notes) read enterprise liability skip serving 2 masters Duty to Protect From Third Parties Scenario 1: Based on relationship b/w P & D (Iseberg, Posecai) Special relationship Risk arises w/in scope of relationship Foreseeability risk *Risk must be imminent when special relationship = employer employee Scenario 1: Based on relationship b/w D & third party. Special relationship + ability to control + foreseeable risk to P * However, courts typically characterize duty to protect as duty to control third party, not duty to warn P. *Reminder: Duty to protect if affirmative act creates risk (Brigance) or falls under one of other exceptions
to no duty rule.

General Rule: Employer is not held vicariously liable.

Riviello v. Walron pg 458 Fact: cook at Pot Belly struck a customer with an open knife inadvertently. P sued
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owner- rulingwithin scope of employment. Fruit v. Schreiner pg 459 Insurance salesman was at a convention, after business activities, he drove to a bar hoping to find some colleagues, found none and drove back to the convention center he skidded and struck P crushing Ps legs. within scope of employment Rationale for Vicarious liability: Risk sharing Compensating employee Rodebush v. Oklahoma Nursing Homes Fact: Nurse aid at long term care facility slapped elderly resident suffering from Alzeheimer . Investigation showed aid was intoxicated and had criminal record of battery with intent to kill-held: Employer was vicariously liable. Reasoning: exception to vicarious liability rule when the act is one which is fairly and naturally incident to the business, and is done while the servant was engaged upon the masters business and arises from some impulse of emotion which naturally grew out of or was incident to the attempt to perform the masters business. Fahrendorff v. North Homes, Inc. pg-471 Fact:D- counselor at group home made sexual advances to P who was temporarily placed in home. Vicarious liability is legitimate jury question in this situation as action is foreseeable. D.C. v. Hampton pg- 472 Fact: Held: Rule: Reasoning *when D is hiring Vicarious Liability Tortfeasor = Employee: Vicarious liability if tortious act w/in scope of employment o W/in scope of employment if generally doing the masters work (Riviello, Fruit) Tortfeasor = Agent: Vicarious liability under multifactor test (Hampton) o Control is key Tortfeasor = Non-Agent Independent Contractor: o No vicarious liability unless nondelegable duty o Nondelgable duty if (1) inherently dangerous work

Read 502 507; 508 514 (461 475)

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Products Liability: 502-07, 508-21, 526-33, 535-40 Under strict liability, the seller or other distributor of a defective product may be liable for any harm to persons or property caused by such product. Remember that strict liability is only one way a manufacture or supplier of a product may be held liable. Breach of warranty or negligence may be applicable. Restatement Third o P or others contribute to activity causing harm(some courts dont follow) o Harm avoidable if D or P used reasonable care o Ps contributory negligence/assumption of risk (some courts dont take it into consideration) Here we are talking about implied assumption of risk. some jurisdictions assumption of risk acts as a bar while some dont follow it. o o o o Rationale for Strict Products Liability Fairness Cost Compensation goals o Spreading the risk enterprise liability manufactures can more easily spread cost Consumer expectation that products will be reasonably safe

C.

ective Product
o o o o o

Prima Facie Case P is member of class of individuals foreseeably injured by defective Defective product Actual harm Cause in fact Proximate cause

product

a)

Manufacturing defect To prevail on a claim of manufacturing defect, the plaintiff must prove: i. The product was defectively manufactured; ii. The defect existed when the product left the defendants control; iii. The defect caused the plaintiffs injury; iv. The plaintiff used the product in a reasonably foreseeable way. . Reasonable Alternative Design (Honda) a. There exists an alternative design that would prevent or reduce risk of injury P incurred. b. Safer alternative design was at time of manufacture i. Technologically feasible ii. Economically feasible c. Safety benefits of the alternative design > costs d. Costs include direct costs, decreased utility of product and increase in other safety risks

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b)

Design defect To prevail on a claim of manufacturing defect, the plaintiff must prove: i. The product was defectively designed; ii. The defect existed when the product left the defendants control (consumer expectation test Leichtamer); iii. The defect caused the plaintiffs injury; and iv. The plaintiff used the product in a reasonably foreseeable way. Design defects are judged by 2 standards: a) Whether the product was dangerous beyond the expectation of the ordinary consumer (ie. The consumer expectation test) b) (Risk utility test) if there was Reasonable Alternative Design available to the defendant and failure to use that design has rendered the product not reasonably safe. To establish existence of design defect, the plaintiff must show that a less dangerous modification or alternative was economically feasible.

Failure to warn (information defects) Essentially same as a design defect claim, but the defect in question is failure to provide adequate warning related to the risks of using the product. Established if there are foreseeable risks of harm, not readily recognized by an ordinary user of the product, which could have been reduced or avoided by providing reasonable instructions or warnings. (Liriano)

c)

d)

Inference of defect P is entitled to res ipsa loquitor like inference that a product defect existed if the harm suffered by the P: Was of a kind that ordinarily occurs as a result of a product defect; and Was not solely the result of causes other than a product defect existing at the time of sale or distribution. (mainly applied in cases involving manufacturing defect when the product is lost or destroyed as a consequence of the incident.

Defective Product Summarized 1. Manufacturing Defect a. Product unreasonably dangerous for its intended use (Lee)/ departs from intended design (Restatement Products liability b. Defective when leaves Ms hand 2. Design Defect a. Consumer Expectation test (Leichtamer) b. Reasonable alternative design (Honda) c. Manifestly unreasonable design d. No design if product dangerous by nature To bring a strict liability action, P is not required to be in privity of contract with the
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intiffs

defendant. Consequently, any foreseeable user of a defective product who is personally injured or whose property is harmed by the product may maintain a strict liability action.

endants D must be in the business of selling or otherwise distributing products of the type that harmed the plaintiff. (manufacturers, distributors, retail sellers, lessor) casual sellers are excluded; e.g., individual who sells a car to neighbor; also, auctioneers are excluded. A seller that provides both product and service is generally liable if the defective product is consumed, such as food at a restaurant, but not if the product is not used, such as the vendor of a balloon ride when the balloon itself is defective. If unforeseeable use of product, however, courts dont typically go to explore foreseeable misuse .. what this means ..get notes from Suchi

enses Comparative Fault and Assumption of Risk Misuse, Defectiveness and Comparative Fault/Assumed Risk Disclaimers of liability are irrelevant in negligence or strict liability cases if personal injury or property damage has occurred.
D. Emotional Harm: 405-409 (skip Note: First Amendment Considerations), 410-27 (skip

Boyles case), 428-29 Negligent Infliction of Emotional Distress [162-174] Overview Historically, tort law provided compensation for a victim's mental distress only when it followed physical injury. Recovery for this emotional upset, parasitic to the plaintiff's claim for physical harm, is typically known as pain and suffering. Now, in certain limited circumstances, negligently inflicted mental distress that does not follow from physical harm is recognized as a basis for recovery. Traditionally, as a prerequisite to recovery for mental distress, the defendant's negligence must have caused some form of physical impact on the plaintiff's person. Most states today only require that the plaintiff have been in risk of physical impact, sometimes referred to as being within the zone of impact or the zone of danger. Most states also require that the victim's mental distress be sufficiently severe to cause physical symptoms of the distress. Some jurisdictions have flirted with a much broader recovery for pure emotional distress dispensing with a requirement of physical manifestations and broadly defining the class of proper plaintiffs. A separate development has been the gradual recognition of bystander recovery for negligently inflicted emotional distress. A majority of states allow a bystander to recover only if the bystander is also within the zone of physical risk. A significant minority of states now allow recovery for bystanders who are not in risk of physical impact if they (1) are physically near the accident; (2) have contemporaneous sensory perception of the accident; and (3) are closely related to the victim. Most of the states following this approach also continue to require that the bystander-plaintiff suffer some physical
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manifestation of her distress. Direct Actions The Impact Rule A small minority of states retain the once generally held requirement that the victim must suffer physical contact by the defendant's negligence to recover successfully for mental distress. The impact need not itself cause physical injury. The few jurisdictions that continue to require impact on the plaintiff reason that the rule still reflects the clearest and most logical line for determining when mental distress should be compensated. The vast majority of jurisdictions, however, have abandoned the impact requirement, reasoning that its artificiality creates an incentive for overly creative pleading and excessive litigation as plaintiffs try to fashion new exceptions to the impact requirement. Risk of Impact Rule A clear majority of American states allow recovery for mental distress if the plaintiff was at risk of physical impact and suffered a physical manifestation of the distress. This so called zone of danger requirement allows the plaintiff to recover for mental distress caused by near misses. The majority rule continues to require physical manifestations of the mental distress. Classically this physical ailment was characterized as fright, although the term is no longer required. While a heart attack or miscarriage is clearly adequate, such severe physical manifestations are not required, and assertions of stomach trouble have sufficed. Special Cases In limited situations, courts have been willing to relax the limitations on recovery for negligently inflicted emotional distress. For example, a plaintiff can readily recover for mental distress occasioned by the negligent handling of a close relative's corpse, or the erroneous notification of a close relative's death, situations lacking either impact or a threat of physical danger to the plaintiff. Broadest Direct Recovery A few jurisdictions moved toward permitting a broader recovery for negligently inflicted emotional distress, employing general notions of foreseeability. In the place of restrictions such as impact or presence in the danger zone, these states permit recovery for mental distress to all foreseeable plaintiffs. Others have something of a middle ground, where a plaintiff suffering mental distress is owed a duty provided she can show the existence of a pre-existing duty. *Camper victim cannot recover under Burgess because no pre-existing relationship. Recovery for Fear of Future Physical Harm A particularly challenging issue receiving increasing attention is whether emotional distress damages should be recovered for the fear of future physical harm. The problem often arises in the toxic tort or defective product context. Most courts are wary of permitting recovery due to the difficulty of measuring damages, potentially crushing liability, and serious proof problems such as the possibility of multiple causes. Bystander Actions Recovery for emotional distress suffered from the defendant's negligently inflicted harm
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to another has been particularly controversial. Courts have asserted various tests in an attempt to strike a balance between allowing the most foreseeable plaintiffs to recover for emotional distress without overly burdening negligent defendants. Zone of Danger Courts have used the near-impact rule to compensate a bystander for the emotional trauma of witnessing a serious injury to a close relative. Under the zone-of-danger rule, the plaintiff can recover for emotional harm suffered from witnessing negligently inflicted harm causing death or serious injury to another (generally a close relative) when she is in a position to fear for her own safety.

Dillon v. Legg: Minority Rule A large minority of states have extended potential recovery to bystanders of an accident even though they were not at physical risk themselves. The Dillon v. Legg decision which led the movement away from the zone-of-danger test, articulated three factors needed to establish a duty to the plaintiff: (1) whether plaintiff was located near the scene of the accident . . . ; (2) whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident . . . ; (3) whether plaintiff and the victim were closely related. These factors have become subject to claims of arbitrariness, however, as courts have come to differing conclusions under similar fact patterns. Although courts disagree about the proper scope of recovery, there is a general concern that liability to bystanders flowing from a negligent act will create liability disproportionate to the defendant's fault. This concern has prompted some courts to discourage expansive findings of foreseeability. Indeed, there has been some recent movement toward narrowing bystander recovery even on the limited Dillon approach. [See, e.g., Thing v. LaChusa, narrowing the reach of Dillon.] Restatement Position The Restatement endorses liability under 436 if the plaintiff's mental distress results from the risk of impact, or shock or fright at harm or peril to a member of his immediate family occurring in his presence, and the plaintiff is in the zone of danger. Further, Restatement 436A requires that the plaintiff suffer bodily harm or other compensable damage. Loss of Consortium, Wrongful Death, and Survival Overview These claims deal with two kinds of compensable harm to certain family members arising from tortiously inflicted injury to another: loss of consortium and wrongful death. Loss of consortium and wrongful death are most appropriately viewed as a type of injury. As a duty issue, the debate focuses on who should be permitted to recover, as well as what should be recoverable. Loss of Consortium Nearly all jurisdictions permit one spouse to recover against a person who seriously injures the other spouse, usually calling it as an action for loss of consortium. The concept of consortium gradually expanded to permit recovery for more than the economic loss of the of the injured spouse's household services; now the loss of
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consortium plaintiff is permitted to recoup intangibles such as loss of companionship, comfort, and sexual services. Some jurisdictions, still a minority, permit children to recover for the tortious injury to a parent and parents to recover for tortious harm to a child. Courts expanding consortium rights have noted the inconsistency of permitting a spousal action while denying an action by parents or children. Some jurisdictions dont allow adult children to recover for loss of consortium. Limited to loss of companionship, service, but doesnt compensate for emotional distress.

E. Death: 446-55

Wrongful Death Every state has passed a statute that permits wrongful death recovery though the scope of that recovery varies state to state. Diff b/w survival action and wrongful deathsurvival addressin reatishp Who May Recover Under any wrongful death statute, the plaintiff is suing for loss suffered due to the tortiously inflicted death of a close relative. Because wrongful death is purely statutory, an action may be brought only by those permitted to do so pursuant to the jurisdiction's wrongful death statute. A surviving spouse, parents and children are typically permitted to bring an action. Some statutes exclude other possible dependents such as siblings or stepchildren who have not been legally adopted. Recoverable Damages Initially nearly all wrongful death statutes limited wrongful death recovery to pecuniary (monetary) losses. Strictly interpreting the limitation to pecuniary losses led to minimal recovery for the death of the elderly, the young and those not working outside the home. Today, most jurisdictions permit designated dependents to recover lost support and other benefits arising from the tortious death. Proof Problems Wrongful death recovery is never automatic, even by one clearly permitted to bring the action under a wrongful death statute. The plaintiff must prove with some degree of certainty the losses suffered from the tortious death. Calculating these damages can be extraordinarily challenging, such as when dealing with the death of a minor child. Defenses The effect of the wrongful death plaintiff's negligence or that of the decedent may affect wrongful death recovery. In most jurisdictions, the action is treated as derivative of the underlying claim; thus, the deceased's fault affects the wrongful death heir's recovery. Statute of Limitation for Wrongful Death
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The time to start tolling depends on the jurisdiction; some follow the discovery approach whereas others follow the time the decedent dies. Sometimes, a situation may occur where the wrongful death action can continue but the statute has passed for the underlying claims. Survival Actions A survival action is the continuation of the decedent's action against the tortfeasor. As such it does not give rise to new legal claims; it simply continues a pre-existing one. The action is brought by the administrator, executor or personal representative of the decedent's estate. As the continuation of the decedent's action, the representative can, in most jurisdictions, recover any damages that the decedent would have recovered if she had lived. Some jurisdictions limit what can be recovered in a survival action, however. Virtually all jurisdictions permit both survival actions and wrongful death actions by statute. Where the tortious conduct contributes to the victim's death, often both actions are brought simultaneously. The survival action typically permits the estate to recover the decedent's medical expenses, lost wages and, perhaps her pain and suffering. The post death losses are recoverable in the wrongful death action by the appropriate statutory heirs for the losses they suffer from the tortiously caused death.

Settlement: Joint and Several liability In cases where you have multiple defendants, where one defendant agrees to settle, some states bar the non-settling defendant from seeking recovery from the defendant that settled. However some jrx do not follow this approach. Prorata share rule: Several (Non Joint) Liability Jurisdictions

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