TORTS MIDTERM OL

Duty
(decided by judge)

In exercise of one’s conduct, a person

has a duty to foreseeable plaintiffs to
exercise reasonable care with regard to
foreseeable risks of harm arising from
that conduct.

We do not “look inside their head”

We consider what a reasonably prudent person would do in
the same situation.

BREACH:
unreasonable conduct in light of foreseeable harm

VARIATIONS: none.
Superior skills come in AFTER duty is established.
(affecting breach, not duty)

Breach

Unreasonable conduct in light of foreseeable risks

VARIATIONS:
1. Children (unless inherently dangerous activity)
a. R care child of same AIMTE
i. Age
1. 0-7 can’t be sued
2. 7-14 may be sued if this
particular kid should be Prior-similar instances test
held to child SOC court considers evidence of prior incidents of
(judge decides) crime and their proximity to the landowner’s
3. 12-14 can be sued for neg property
ii. Intelligence Totality of circumstances test
iii. Maturity court simply considers all of the relevant
iv. Training
circumstances surrounding a particular event,
v. Experience
including the nature of the property, the
2. Emergencies (via jury instruction [see below])
3. Physical disabilities occurrence of prior similar events, and the
a. Pre-existing = (r person w same condition) condition of the property.
b. Sudden onset = not liable if unable to
conform conduct to SOC. HAND FORUMULA
4. Superior Skills (subjective standard) B > (P x L) = no breach
a. Apply r care for person w same skills. B < (P x L) = breach
The actor must utilize… b. Must be used if you have a duty
not only those qualities B – burden of adequate precautions to
and facilities which as a No variations for
1. Gender prevent harm
reasonable person he is
required to have, but 2. Mental P – probability of accident
also those superior disabilities L – loss (POTENTIAL severity of resulting
qualities and facilities he injury if accident occurs [not actual
himself has. damage that occurred])
CUSTOMS (in determining breach) (argue both sides) conduct of other persons in
Do not need to be universal custom, just “fairly well defined” enough, substantially similar conditions may
so that the D would be expected to know it in the industry. be relevant to reasonableness,
- If a custom was ignored, and is the exact cause of incident, under circumstances, of particular
it may count as a breach of duty. individual’s acts or omissions
- Deviation from a custom MAY show breach.
- NOT DECISIVE, R care is much stronger.

MEDICAL MALPRACTICE (2 separate potential claims)

- INFORMED CONSENT (NOT FOR MISDIAGNOSIS)
o Occurs before patient makes decision
o PRUDENT PATIENT (COMMON LAW)
 No expert testimony
 Determine if a r person would have made same
Decisions in the same position
 What risks would a r person consider
o CUSTOM
 Requires expert testimony
 doctor must act w/degree of care, knowledge and skill ordinarily possessed and
exercised in similar situations by average member profession practicing in same field
in relevant geographic community. Custom is the standard of care, if there is
deviation there is breach.

Standard of Care (BREACH TEST)

- PRUDENT PATIENT
o Would a r person (in patient’s position)
consider info not provided
(risk of treatment, alt treatment)
significant in making their decision.
- CUSTOM SOC
o Would avg member of profession
(in same field/loc) give diff info
and/or advice to the patient?

- NEGLIGENT MEDICAL PERFORMANCE

o Dr. messes up procedure through
their negligence
 Failure to diagnose
 Botched procedure?
 doctor must act w/degree of care, knowledge and skill ordinarily
possessed and exercised in similar situations by average member
profession practicing in same field in relevant geographic community.
JURY INSTRUCTION “patient’s position” includes “dancer”
only if they’ve informed the Dr.
SUDDEN EMERGENCY
∞ 1. an unforeseen combination of circumstances which calls for immediate action
∞ 2. a perplexing contingency or complication of circumstances
∞ 3. sudden or unexpected occasion for action, exigency (urgent) pressing necessity.

SUDDEN EMERGENCY JURY INSTRUCTION

 Defendant who thru no fault of their own
 Is placed in sudden emergency
 Is not negligent if they use degree care reasonably careful person would in the
same/similar situation.

NEGLIGENCE PER SE – ONLY IF THERE IS A STATUE

If there is a statue, the statute is the duty.

Ask:
1. Is the plaintiff in the statute’s protected class?
2. Is the kind of harm suffered what the statute intended to prevent?

Violation of the statue is breach.

Defendant may raise excuses as to why they had to violate statute.
EXCUSES
A child engaged in inherently dangerous activity can be found NPSe. Incapacity

Violation of Neither knows or should know (rare) of

the violation
∞ Child labor
∞ Pure food drug Inability after reasonable care to
∞ Hazardous material comply

Compliance would involve greater risk

IS INEXCUSABLE
Reasonable under all circumstances
RES IPSA LOQUITOR
Only applies if we have NO DIRECT EVIDENCE OF NEGLIGENCE.

∞ Accident is of the kind that ordinarily doesn’t occur in absence of negligence

∞ Defendant had right of exclusive control over instrumentality causing harm.

∞ Other potential causes of accident, including conduct of Plaintiff and third persons, sufficiently
eliminated by evidence
BREACH: SLIP AND FALL
Actual Notice: was there a spill that an employee or liable person actual saw.

Constructive Notice: unsafe condition existed a sufficient length

of time so that employees should have had knowledge of it.

Mode of Operations: A company is operating in a way that

Is unreasonable in the circumstance. (self-serve, display)

STATUS TRICHOTOMY (Social gathering)

∞ Invitees
- Entrant on land (with permission) for mutual
pecuniary benefit

o Does not need to be CERTAIN benefit

∞ Licensees
- Entrant enters land for their own purposes,
not land owner’s. Invitee – fix all harm/danger that LO
would/should know.
- With consent or acquiescence of the owner Licensee – has to warn and make safe known
(no objection from owner=implicit consent) danger.
Trespasser – not to injure willingly,
∞ Trespassers knowingly
- Entering without authority of landowner’s permission

LIMITED DUTY RULES

Attractive Nuisance – can be applied to a licensee child
Possessor of land liable physical harm to child trespassers caused by artificial condition if:
1. Place where condition exists is one upon which possessor knows or reason to know
children would likely trespass.
2. Condition is one possessor knows/should know of and realizes/should realize will involve
unr risk death or serious bodily harm to such children. (doesn’t have to be actual notice)
(has to be a seriously harmful condition, not just defective condition).
3. Children because of youth don’t discover condition or realize risk is involved.
4. Utility to possessor of maintaining condition and burden of eliminating danger are slight
compared to risk to children involved. (Hand formula).
 
IF THESE 4 CONDITIONS ARE MET, APPLY CONDITION 5 TO ANALYZE THE STANDARD OF CARE
 
5. Possessor fails to exercise r care to eliminate danger or otherwise protect children.
Warning is not valid enough.
ACTIVE OPERATIONS
Landowners are liable if operations are active (manufacturing, farming) (piñata??)
- You have a duty to not create harm
- No defective conditions on land
- Harm involved has to arise specifically from active conditions

GOOD SAMARITAN – WILL NEED A STATUE

You must aid if it is reasonable to do so.
If there is danger to you present, it is less reasonable.

DUTY TO RESCUE if:

- IF YOU CREATED THE HARM (GEN DUTY PRINCIPLE)
- Special relationship
 Parent/child
 Teacher/student NEGLIGENT ENTRUSTMENT
 Employer/employee
 Companions on social venture
 Contractual relationship
 Voluntary assumption of duty
- IF YOU TRY TO HELP AT ALL.
o YOU ARE AT FAULT/BREACH IF YOU
 LEAVE D WORSE THAN YOU FOUND THEM
 UNREASONABLY LEAVE THEM
 Statue imposes duty to assist (good Samaritan)
 Non-negligent creation of risk/innocent prior conduct creating risk
 Gratuitous promise & justifiable reliance
(I can’t swim. "don’t worry, if you drown while swimming to the dock, I’ll save you!")
 Intentionally preventing others from assisting.

DUTY TO TAKE PROTECTIVE MEASURES AGAINST RISKS POSED BY 3 RD PERSONS

- only if...special relationship w/person whose conduct needs to be controlled or foreseeable
victim. (If a moments reflection allows one to recognize a potential victim – there is duty)

DUTY TO PROTECT AGAINST CRIMINAL CONDUCT

- only if….special relationship w/victim of foreseeable criminal conduct (NO BALANCING TEST –
SEE Prior similar instances)
MOTIONS
Summary Judgement
- Pre-trial
- No disputed facts – everyone has to agree (res ipsa = dispute)
- If the jury is deciding something – there are disputed facts.
o Granted if the court finds:
 No genuine issue of material fact in dispute; and
 Moving party entitled to judgment as matter of law
if reasonable jury could find facts either way → motion denied

Motion to Dismiss
- Even if what P is saying is true, it doesn’t matter.
- The evidence provided does not meet preponderance requirements.
- There has to be some sort of fact pattern that would more than 50.1% establish a case.

Motion for Directed Verdict

- During trial
- With all the evidence as is, if we accept P statements as true, we can go ahead and get a verdict.
- Can have disputed facts.
o viewing evidence in light most favorable to Plaintiff and all reasonable inferences,
insufficient evidence on 1+ elements of the claim are such that reasonable jurors cannot
find in Plaintiff’s favor

Judgement Non-Withstanding Verdict

- The jury was acting unreasonably in the case.
- (for instance) The facts obviously say the defendant is negligent.
- Motion for retrial or possibly reversal.
o Plaintiff failed to meet burden of production of evidence
o in essence = renewed motion for directed verdict

VICARIOUS LIABILITY
- employer generally will be vicariously liable for employees’ negligence when that negligence
occurs w/in scope of employment

- employer may also be vicariously liable for employees’ intentional torts if employee’s
misconduct is reasonably related to employment

- regardless of any vicarious liability for acts of its employees, employer may be liable for its
own negligent acts including
negligent hiring, training, and/or supervision of employee
direct negligence

(no vica liab for employee punching person in store – but negligence if they let him work there knowing
hes a violent dick)
NIED (Breach needs to be established)
- Zone of Danger I (fear for self)
o recovery where P in foreseeable zone of physical danger but escaped w/o
physical injury so long as (serious) distress arose from P’s fear for own physical
safety

- Zone of Danger II (fear for other)

o allows one threatened w/bodily harm because of D’s negligence to recover for
emotional distress resulting from viewing death or serious physical injury of
member immediate family
Bystander (outside of ZD,
fearing for another in ZD) Causation (USE ONE OR THE OTHER)
(THING RULE) - But For Test
P closely related to injury o But for D’s negligent conduct, same harm
victim such as parent or wouldn’t have occurred.
sibling
- Substantial Factor
Bystander is present at o D’s negligence is a contributing factor to P’s harm
the scene (THING RULE) to “some extent”
Emotional injury
bystander caused by - Special Situations – multi cause cases
contemporaneous o If each D’s conduct necessary to cause injury ->
either but for or substantial factor test works
o If each D’s conduct sufficient to cause injury -> but for test will not work. Use
substantial factors instead.
______________________________________________________________________________
Single Invisible Injury
- P who suffers injuries caused by independent tortfeasors which are incapable of
reasonable apportionment can obtain judgment v. each D for full damages.

Joint & Several Liability (DISCUSS W DAMAGES)

- Where independently negligent parties cause single indivisible harm, courts generally
hold each D liable for entire harm, together or separately, although P gets 1 recovery.
Alternative Liability - only one, among many negligent defendants, caused plaintiffs harm but it’s
unclear "who done it". Parties involved each need to be negligent to a degree.
- courts use this to shift burden to defendants to prove “who done it” and if they cannot
do so → J&SL

Loss of Chance Doctrine (ONLY FOR NEG MED PERF – NOT INFORMED CONSENT)
- doctrine views person’s prospects for surviving a medical condition to be something of
value even if possibility of recovery below 50% prior to doctor’s negligence.
- Applies when your chance of getting a better medical outcome is less than 50%
- P must show by preponderance that D’s negligence lessened chance of receiving more
favorable medical outcome (not getting amputated/losing use of limb).
 - damages based on probability (%) by which Defendant’s tortious conduct diminished
likelihood of achieving some more favorable outcome (i.e. survival or cure).
- If they have more than 50% they are not in need of this doctrine.

Foreseeability (SCOPE OF LIAB)

Superseding Cause
- an intervening cause of accident that was not reasonably foreseeable. It relieves the
initial tortfeasor from liability while shifting full responsibility for the plaintiff’s harm to
the intervening cause.

Intervening Cause
- another person or force of nature that appears after the initial tortfeasor’s negligent act
creates a risk of harm. This subsequent actor or force is the immediate trigger of the
harm to plaintiff. (neg drivers, med mal in an ambulance is usually foreseeable)
o If foreseeable – this is not a superseding cause, initial tortfeasor is liable.

Medical Malpractice Complications

- initial tortfeasor subject to total financial burden of plaintiff’s injuries including those
directly attributable to doctor’s subsequent malpractice.
- Some courts extend this to additional injuries to P while in transport to hospital.

Eggshell Skull Rule

- The negligent actor is subject to liability for harm to another although a physical
condition of the other which is neither known nor should be known to the actor makes
the injury greater than that which the actor as a reasonable [person] should have
foreseen.
 - You are fully liable if the P has a condition that made their injury worse, even if you
didn’t know they had such a condition.

Eggshell Psyche Rule

- Applies to pre-existing mental conditions if the defendant’s negligence physically injured
the plaintiff and that mental condition is aggravated as well.
- On the other hand, if the defendant’s negligence causes plaintiff to suffer mental
distress without physical injury the rule may not apply.

Rescuer Rule
- A negligent actor is liable for injuries sustained by a rescuer trying to rescue the actor
results of their own negligent conduct.

Damages
Types
Compensatory
o Pecuniary
 Past & future
 Medical expenses
 Lost earning capacity/wages

o Noneconomic
 Past & future.
 Pain & suffering (phys & emo)
 Loss of enjoyment of life
 Permanent disability or impairment of bodily function
 (if spouse is killed – consortium If kid is killed – companion If parent killed
– can sue (but only if the kid is a minor)

o Punitive (see below)

Collateral (Insurance) Source Rule

- Payments to injured party from collateral source cannot diminish damages recoverable
from tortfeasor. Applies when either:
o (1) the source of the benefit is independent of the tortfeasor
o (2) the plaintiff contracted for the possibility of a double recovery

Mitigation of Damages (Doctrine of Avoidable Consequences)

- If P unreasonably fails/refuses to undergo treatment which would alleviate difficulties,
the defendant may be relived of responsibility of further damages.
CONSORT – must be married to recover for partner – must be minor to recover for kid.

Determining Punitive Damages

Consider:
(1) likelihood at time D’s misconduct of serious harm;
(2) degree D’s awareness that likelihood;
(3) profitability D’s misconduct;
(4) duration D’s misconduct and any concealment;
(5) attitude and conduct of D on discovery misconduct;
(6) financial assets and income of D; and
(7) total deterrent effect of other punishment imposed on D

Ratio of damages “Constitutional Limit”

- punitive damages four times the amount of compensatory damages might be “close to
the line of constitutional impropriety”
- presumption against damages award w/ratio of 145:1 (punitive damages: compensatory
damages)

AFFIRMATIVE DEFENSES

Comparative Fault
- looks at respective levels of fault between parties, distributing liability and sharing
responsibility.
- D has burden of proof: must prove if P was negligent in their own actions.

Pure
 o Plaintiff at fault may recover regardless of degree of fault. However, recovery is
reduced. (P is 98% neg – will recover 2%)

Modified
o P is able to recover if their fault does not reach threshold set by the state.
o If P liable is 50% or more, they CAN’T RECOVER. (they can cover 51% if they are
only liable for 49)

Avoidable Consequences (Mitigation of Damages above)

- D would not have to pay for the additional harm that P could have avoided through
reasonable care.

Assumption of Risk
- Express AOR
o When person gives explicit oral or written permission to release another party from an
obligation of r care
o If applicable -> complete defense -> no recovery for injuries resulting from
 Risks inherent in activity
 Defendant’s negligence
o Not applicable if
 Defendant engages in reckless or intentional conduct
 Public policy exception (TUNKL FACTORS BELOW)
 Language unclear/ambiguous.

a. It concerns a business of a type generally thought suitable for public regulation

b. The party seeking exculpation is engaged in performing a service of great importance to the public,
which is often a matter of practical necessity for some members of the public
c. The party holds himself out as willing to perform this service for any member of the public who
seeks it or at least any member coming within certain established standards
d. As a result of the essential nature of the service, in the economic setting of the transaction, the party
invoking exculpation possesses a decisive advantage of bargaining strength against any member of the
public who seeks his services
e. In exercising a superior bargaining power the party confronts the public with a standardized adhesion
contract of exculpation, and makes no provision whereby a purchaser may pay additional fees and
obtain protection against negligence
f. As a result of the transaction, the person or property of the purchaser is placed under the control of
the seller, subject to the risk of carelessness by the seller or his agents.

- Implied Secondary (subjective)

o Defendant must offer proof that P had
 1. Actual knowledge of danger
 2. Understood and appreciated risk AND
 3. Voluntarily exposed self to risk
o Subjective Standard – looking at P’s mind, did they know about risks? Did they
understand them? Did they voluntarily expose themselves?
o modern approach = treat such conduct as contributory negligence
  reduces recovery, not a complete bar to recovery.

- Implied Primary (even if you don’t know shit about sports)

o Plaintiff presumed to have consented to release D from future negligence liability
because P voluntarily participated in activity involving inherent and well known risks.
o Limited application – sports and amusement park cases
o Professional Rescuer Rule - professional rescuer barred from bringing tort claim v. 3rd
party whose prior negligence necessitated emergency response
 → plaintiff’s participation in activities formerly considered as indicative of
primary implied AOR now leads to finding of no duty owed by defendant
 Can lead to complete bar to recovery

GOVERNMENTAL IMMUNITY (discretionary function exception)

- Federal and state governments have enacted statutes which waive immunity for
negligence
- But – waiver of governmental immunity for negligence doesn’t apply to discretionary
functions of government and employees
o Discretionary functions
 Actions involving social, economic, and/or political judgements
 Actions which require gov’t employees to balance competing interests
(i.e. public safety benefit v. financial costs).

To determine if discretionary function exception applies:

- Did govt actor have any discretion regarding the course of conduct to follow?
o No – course of conduct is prescribed by statute, regulation, established agency
practice. Exception is NOT APPLICABLE, govt may be liable.
o Yes – ask if discretion involves
 Policy making or planning -> exception applies + govt not liable.
 Implementation of policy/plans -> exception n/a + potential govt liab.

STRICT LIABILITY
ABNORMALLY DANGEROUS ACTIVITIES
- Rest 2nd: Factors to determine if activity is abnormally dangerous and involves strict
liability.
(a) existence high degree risk harm to person, land or chattels of others
(b) likelihood that harm that results will be great
(c) inability to eliminate risk by exercise r care (REQUIRED)
(d) extent activity not matter common usage
(e) inappropriateness of activity to place where it is carried on
(f) extent to which its value to community outweighed by its
dangerous attributes
Rest 1/3
- Strict liability applies for those engaging in ultrahazardous (R1st)/abnormally dangerous
(R2nd) activities, which are:
- activities that necessarily involve serious risk of harm to person, land, or chattels of others
which cannot be eliminated by exercise of utmost care and is not a matter of common usage.

Rest 3RD Factors: 1. Activity creates a foreseeable and highly significant risk of physical harm
even when R case is exercised by all actors, AND 2. The activity is not one of common usage

- Animals
• “one free bite” - liable once the owner knows or should know of the animal’s
dangerous propensities, OR owner is liable once they are ON NOTICE of the dog’s dangerous
nature EVEN IF the dog had not bitten another person prior to accident

Causation: But for

SOL:

- SOME - outside force beyond D’s control may relieve D from SL for Dangerous Act.

- SOME - no negligent intervention by 3rd person will relieve D from DL for DangAct.

- NOW WE HOLD: 3rd person’s intervening acts of negligence will sometimes provide a
defense from liability for abnorm. dang.
- activities if so unforeseeable that they are superseding

- Intervening acts of 3rd Persons

o May relieve the D ONLY IF those acts were unforeseeable in relation to the
extraordinary risk created by the activity
 Ex: negligent firework manufacturer is FORESEEABLE
 However, D may have a right of contribution vs the 3rd party