Torts Outline I. Introduction a. Torts are a wrongs recognized by the law as grounds for a lawsuit b.

In almost all cases, the defendant is in some sense of fault either becomes he intends harm or because he takes unreasonable risks of harm c. Harm is required (can be injury, physical, or intangible harm such as harm to reputation) d. Some torts are also crimes e. Non-tort systems: workers compensation II. The aims and approaches in tort law-justice and policy a. Morality or corrective justice i. Hold the defendant liable for harms they wrongfully caused ii. Liability is imposed instead of just being a right to do so b. Social utility or policy i. Bases tort law on social policy or a good for all view for all of us ii. Works toward the good of society iii. Process is important because it doesnt leave a lot of room for judge and jury discretion iv. Can be potential conflict between justice and policy III. Ideas of corrective Justice a. Fault and corrective justice i. Tort law imposes liability upon defendants for conduct the law treats as wrong ii. Morally faulty conduct iii. Corrective justice ideals iv. Requiring the wrongdoer to compensate the plaintiff b. Strict liability and corrective justice c. Unitting the potential for gains and losses i. Morally based system and therefore within the principle of corrective justice ii. If you take choices about your conduct than you must take responsibility for the losses d. Fault again IV. Compensation, risk distribution and fault a. Risk distribution or loss spreading i. Some defendents are seen as risk distrabuitors who are liable for any harms b/c they can distribute the costs of paying for compensation b. Limited acceptance of risk distribution i. Common law tort has not generally accepted views that compensation is more important than cor liability should be strict c. Moral and policy reasons for limiting compensation to cases of fault i. Judges mostly for corrective justice, social policy only when the coincided V. Fostering freedom, deterring unsafe conduct, economic analysis a. Detterance i. Idea that all people, recognizing potential tort liability, would tend to avoid conduct that could lead to tort liability

VI. Process values a. Due process b. Process values i. Should leave participants with a sense of humane participation in the process c. Rules should not be to abstract, b/c to much interpretation, rules should not be to strict VII. Prosser v. Keeton a. Procedural facts: Keeton was held liable to return watch back to prosser or pay its reasonable value. Keeton Appeals b. Facts: Prosser was owner of watch, it was stolen by an unknown person. Later found to be thurlow. Thurlow lied and sold watch to Keeton. Prosser saw Keaton wearing the watch and demanded it back c. Issue: Does a person have title to a watch that has been stolen, and is the person held liable to the original owner? d. Holding: about title e. Reasoning: i. Allen: keeton obtained no title for the watch , and he is held liable to prosser 1. process ii. Bateman: neither prosser nor Keaton were guilty of wrongdoings 1. Keaton takes good title by operation of law 2. The just result iii. Compton: social policy requires us to hold that keeton should be given title to the watch 1. Social policy-best for society Van camp v. McAFOOS Cohen v. smith Facts - Cohen was admitted into the hospital to deliver her baby - After examination it was found that he could have a cesarean section - Cohen and her husband allegedly informed the physician that their religious beliefs prohibited Cohen from being seen unclothed by a male o Doctor assured her that her religious beliefs would be respected o Roger smith, a male nurse allegedly observed and touched cohens naked body Procedural Facts - Cohen and her husband filed suit against nurse smith and the hospital, the trial court allowed defendants motion to dismiss on basis for failure to state a cause of action, WE REVERESE Reasoning - Someone commits battery if: o He acts intending on causing harmful or offensive contact with another person or an imminent (about to happen) apprehension of such contract o Harmful or offensive contact with the person directly or indirectly o Liability for battery emphasizes the plaintiffs lack of consent to the touching

 Offensive contact is said to occur when the contact offends a reasonable sense of personal dignity Defendant is liable for those harms which are only offensive and insulting - Intentional infliction of emotional distress counts Mullins v. Parkview Hospital Facts - Before undergoing a hysterectomy, the plaintiff told her gynecologist that she wanted privacy during the surgery. She crossed out the portion of the consent form that consented to the presence of healthcare learners during the process - The anesthesiologist assured that she would personally handle the anesthesia - When she was unconscious the anesthesiologt permitted a medical technician student to practice intubation on the plaintiff the tech lacerated the plaintiffs esophagus and the plaintiff required additional surgery and recovery time Procedural facts - Plaintiff filed suit for battery and the lower court granted summary judgment for all defendant on all counts. Court of appeals health that mullins had an actionable claim against the tech student, the gynecologist, anesthesiologist and both doctors. Vanhoey (tech) appeals More facts - When the anesthesiologist let the tech come in, she had no idea that the plaintiff have filed out the consent form - The tech was not required to obtain consent herself - Yes she did harmfully touch her, but she did not INTEND on harmful or offensive contact (Mullins did not show this) Result - Vanhoey was entitled to summary judgment on the mullins battery claim Elements of battery - Intend on causing harmful contact or causes harmful contact directly or indirectly - You can look for it in the restatements Role of physical harm - No you dont need to cause actual physical harm - Contact is said to occur when the contact offends reasonable sense of personal dignity - Testing rules o First case there was intended harm o No intended harm Motive vs. intent - You can still have battery bc everyone has the right to determine what should be done to their body Motion to dismiss - If that is overturned, does not mean plaintiff wins, just means case goes on Summary judgment - Yes because it would have a been a dispute between the facts Bodily contact - No Nominal damages

People assume that other are not going to intentionally injure them The plaintiff is entitled to recover nominal damages plus compensatory damages for bodily pain, humiliation, mental anguish and other injuries that occur Garret v. Dailey Facts - Brian daily who is 5 years old was visiting Naomi who is the sister of the plaintiff, in the backyard of the plaintiffs home - Plaintiff came in to the backyard to talk to her sister and when she started to sit down in a wood and canvas lawn chair, brian deliberately pulled it out from under her - Only person testifying was Naomi - Trial court did not accept Naomis testimony, but accepted brian daileys version Findings - Naomi and brian were in the backyard, ruth came into the backyard and brian picked up a slightly built wood and canvas chair, moved it sideways and sat in it, which then he discovered that ruth was about to sit in the place where the lawn chair had formally been and he attempted to move it back to ruth but was unable to get the lawn chair under the plaintiff in time to prevent her from falling - Evidence shows that the defendant did not have any willful or unlawful purposes for doing so and did not have any intent to injure the plaintiff o Did not have the intent of performing a battery upon the person Procedural facts - Plaintiff have appeals from judgment dismissing the action and asks for entry of judgment in the amount of 11,000 or a new trial o Courts gives her the damages rather than a new trial Found that: - Brian committed a tort (battery) because it is the intentional infliction of harmful bodily contact BECAUSE the plaintiff failed in her proof, brains story was accepted - After the court determined that that the plaintiff have not established her theory of battery, it then became concerned whether a battery was established under the facts found to them - You need intent FINDINGS - Case is remanded. Need clarifications of the findings to specifically cover the question of brains knowledge o Two ways to prove intent Purpose to harm or offend them Certainty Notes Two - Intent in the Garrat case is that the act must be done for the purposes of causing the contact or with knowledge on the part of the actor that such contact is substantively certain to be produced Three White v. Muniz

Barbra white placed her grandmother in an assisted living facility. A few days after her admission her grandmother started exhibiting erratic behavior . She became agitated easily and sometimes acted aggressively toward other people. (a doctor found it was because of her health problems) - A caregiver asked muniz to change the grandmothers adult diaper. The caregiver told muniz that she was not cooperating. The grandmother refused at first but then Muniz thought that she had relented. When muniz reached toward the diaper, the grandma struck muniz on the jaw and ordered her out of the room - Muni sued everly for assault and battery Instruction to jury - The trial judge told the jury that even though she was sick, it doesnt prevent the finding that she acted intentionally - Muniz counsel objected to a part of the instructions saying that it misstated the law Procedural Facts - Muni sued everly for assault and battery. Trial court ruled in favor of Everly. - The court of appeals held instruction to be error and reversed Issue - Does intentional tort require some proof that the tortfeasor not only intended to contact another person but also intended that the contact be harmful or offensive to the other person Holding - Intentional tort requires some proof that the tortfeasor intended harm or offense Finding - Reject Munizs argument and find that trial court delivered adequate instruction to the jury - Presume that the jury looked into the mind of everly and reasoned that everly did not possess the necessary intent to commit and assault or a battery o Single intent Wagner v. State - While waiting in a department store customer service lineup plaintiff was suddenly attacked from behind by sam giese who was a mentally disabled patient who was brought to the store as a part of a state treatment program - Under statute, the state is not held liable if an battery is committed - In her claim, the plaintiff asserted that that the conduct was not a battery. o Trial court agreed and dismissed the plaintiffs complaint o Dismissal was held by court of appeals - Wagner argues that gieses attack could not be legally constitute as battery because battery requires the actor to intend harm or offense through his deliberate contact, an intent mr. giese was mentally incompetent to form o State argues only intent required for battery is intent to make contact (this was held and affirmed) Child Liability - General Rule: children may be liable for torts they commit as long as the injured plaintiff can prove the required elements including intent - In some states, really young children cannot be haled liable because there are incapable of understanding intent Parent liability for the torts of their children -

Parents need to be in fault some way for them to pay damages The childs tort must have been committed willfully and wrongfully o Damages that can be obtained are limited - Palaintiffs who sue the parents have to prove that the parents negligently supervised their child and this is what caused the plaintiffs harm o The parents insurance policy usually pays for the childs fault Stoshak v. East Baton - High school teacher was trying to break up a fight between two students. The teacher was truck in the head by a punch thrown by one of the two students o Teacher said that he didnt think that he had punched him deliberately but he just got in the way - assault pay provision o He was entitled to more damages if it had been assault or battery by student o Trail court ruled that he was not a victim of battery or assault - Transferred intent (the decision was revered) o If someone is trying to hit another person but accidently hits someone else instead, the intent is transferred Baska v. Sherzer - Baska had given her daughter permission to organize a scavenger hunt and a party - Around midnight a fight broke out between two boys - Baska yelled at them to break up the fight but they didnt listen, and she placed herself between them and was punched in the face o She lost some teeth and had injuries to her neck and her jaw - The two boys testified that they did not intent to hurt her - Both filed motions of summary judgment on the 1 year statute of limitations for assault and battery - Punching Baska was unintentional Cullison v. Medley - Procedural Facts o Cullison sued the Meleys for a number of torts, including assault o The defendant moved for summary judgment on all claims but the trial court granted the motions and the appeals court affirmed o Cullison petitions that the court accept transfer of this cause in order to reverse the trial courts entry of summary judgment against and in favor of the appellees-defendants - Facts o Plaintiff encountered sandy the 16 year old daughter of ernest in a grocery store parking lot o They talked and he invited her to have a coke with him and to come to his home o A few hours later someone knocked on his door, a girl wanted to come in and talk o It was Sandy and her whole family o Her dad threatened him and though he never withdrew a gun he had from the holster, he grabbed for the gun a few times and shook the gun at the plaintiff while threatening Looked like he was going to take it out and shoot him -

This caused the plaintiff psychological problems o He needed counseling and therapy o He suffered from nervousness, depression, sleeplessness - The supreme court disagrees o An assault constitutes a touching of the mind if not of the body Damages recoverable for assault are damages for mental trauma and distress The tort in complete with the invasion of the plaintiffs mental space o Error of trial court to enter summary judgment on the count two allegation of assault Reverse in part and remanded - Apprehension: one meaning is fear o Another meaning is awareness of an imminent touching that would be a battery if completed - Transferred intent: occurs when defendant intends to commit one tort and ends up committing another McCann v. Wal-mart Stores Inc - Claim for false imprisonment Facts: McCann was at Wal-mart with her two sons, when they were leaving they were stopped by two Wal-Mart employees that blocked their exit - Told her that her kids were not allowed in the store because they were caught shoplifting on a prior occasion - Told them that they had to go inside with them and that the police were being called - Security guard came and said it was a different two boys Procedural Facts: Filed for false imprisonment. Jury awarded plaintiff $20,000 in compensatory damages. Wal-mart is now appealing Confinement: confines another within boundaries fixed by the actor, the victim is either conscious of the confinement or is harmed by it - can be physical barriers or physical force - threats of physical force can suffice - threats may be implicit or explicit - duress - AFFIRMED o Loss of freedom Notes Elements- false imprisonment occurs when a person confines another intentionally without lawful privilege and against his consent within a limited area for any appreciable time - Plaintiff must have been aware of the confinement, or must have sustained some type of harm Confinement by threats or duress (a) Threats or demands- when the claim is confinement by explicit or implicit threat or duress, factual details are critical (b) Assertion of authority submission to an officers assertion of arrest under colorable legal authority is sufficient to show confinement (c) Duress of goods Confinement by contractual requirement - The hospital case -

Asking the police to confine - Confining someone without a proper warrant holds the police liable Damages - Plaintiff can recover damages if no harm is done - Actual harm is required to support the claim where the plaintiff was not aware of confinement at the time it took place Duration of Privilege - If you arrest someone for a prolonged period of time Torts to Property A. Trespass to land-right of possession a. Intentional entry i. It can personal entry or causing something else to enter the land ii. Can be something underground or closely above the property iii. If you accidently enter but refuse to leave it also trespass b. Intent- single intent i. The object of intent doesnt need to be trespass 1. Enough that the defendant just intended to enter ii. Once the person enters the land, he doesnt have to have the intent to harm the plaintiffs property c. Trespass and nuisance i. Trespass is the invasion of a persons interest in the exclusive possession of his land, while nuisance is an interference with his use and enjoyment of it d. Injunction and damages i. When physical harm is inflicted the defendant is liable for damages measured either by the cost of repairing the damages or by diminution in the value of the premises resulting from the tort ii. With trespassory tort, the defendant is liable for damages even if there is no physical or economic harm e. Punative damages without harm i. Will be awarded if the trespass is deliberate or malicious f. Extended liability i. The trespasser is liable for damages inflicted even if he never intended harm and could not foresee it g. Limiting extended liability i. It might not apply fairly to trespassers who reasonably believe they are rightfully on the land B. Conversion of Chattels-Trover a. Intent i. Conversion is a intentional tort ii. Defendant must intend to exercise substantial dominion over the chattel iii. **in trespass, the defendant must not be aware of his wrongdoing b. How conversion is accomplished i. It is all a matter of how serious the interference is ii. Conversion will mean that the defendant pays the full price so it should actually equal that mush liability 1. Extent and duration of control

2. The defendants intent to assert a right to the property 3. The defendant good faith 4. The harm done 5. Expense or inconvenience caused iii. Market value of the good stolen (at the product at the time of the conversion) c. New forms of property i. Shares of stocks, or other documents d. Aiding and abetting i. Conversion may be accomplished by aiding and abetting anothers conversion e. Bona Fide purchasers i. Buying in good faith ii. Person cannot buy something from someone if they dont have title to it in the first place f. Uniform commercial code i. Regulates commercial dealings ii. If a merchant is entrusted with to the possession of a good, the merchant has legal power to transfer all the rights to the entrustor g. Remedies i. Usual remedy is measured by the value of the chattel at the time of conversion ii. Sometimes value fluctuates 1. Some courts let them recover for the highest value h. Your only liable if you dispossess the other of the chattel ((if doesnt result to conversion) i. The chattel is damaged ii. Or bodily harm is caused iii. Only get damages C. School of visual arts v. Kuprewicz a. The defendant was a former employee of the school and allegedly caused large volumes of pormn email and unsolicited job applications to be sent to the plaintiff resulting in depleted hard drive space, drained processing power and other effects to the plaintiffs computer system b. School brought suit against defendant for trespass to chattels c. Trial court held motion to dismiss i. Had o prove that he intentionally and without justification or consent, physically interfered with the use and enjoyment of personal property in plaintiffs possession and the plaintiff was harmed d. Supreme court said it was a valid claim Forcible Harms as civil rights violations A. The section 1983 Claim a. Deprivation of any rights, privileges, or immunities secured by the constitution and laws shall be liable to the party injured in a action at law, suit in equity, or other proper proceeding for redress i. State courts must follow precedent set by federal courts B. Yang v. Hardin

a. the defendants (2 police officers) answered a burglary call for a store owner i. the plaintiff thought he saw one of them stealing something, he didnt admit it but then he did ii. the plaintiff followed the officers and got dragged along with the car iii. brown punched yang in the face and also yangs brother iv. the whole time hardin didnt do anything, but at the end he pointed his gun and shouted obscenities at them b. trial court found against brown but for Hardin i. Hardins failure to intervene deprived yang of his rights and liberties under the due process clause ii. Officers who dont not intervene are liable when: 1. They know excessive force is used, the citizen has been unjustifiably arrested, any constitutional violation has been committed by law enforcement official and the officer had a realistic opportunity to prevent the harm for occurring c. Notes: have to establish that someone acted under color of state law i. Liability of public entities the officer that violates the plaintiffs federal rights may be held liable (if he is acting on behalf of a local public entity such as the city, the city can also be held liable) Exemplars of constitutional violations a) The fourteenth amendment due process clause b) The fourth amendments guarantees citizens freedom for unreasonable searches or seizures c) Eighth amendment prohibiting cruel and unusual punishment A. Meals a. b. c. v. City of Memphis King was running radar when she saw a car pass really fast She was chasing the car, the car went and hit james Harvey meals Even though the officer violated city policy, she did not show the intent to injure and therefore did not allege violation of the due process clause B. Alexander v. Deangelo a. Plaintiff sued police officers who had involved her in a sting operation b. To get her to agree, they threatened her with arrest and a 40 year prison term, even though they knew they couldnt impose it i. She cooperated but didnt testify C. Notes a. Some section 1983 claims are also torts b. You can sue or just claim under tort c. Can claim federal law violations and torts under same suit d. People sue un 1983 because you can claim in federal court i. This can be more desirable because jurys are drawn for a wider area and have different demographics ii. you can also recover reasonable attorney fees from the defendant 1. you get all the damages

e. qualified immunity i. one barrier to success is that officer may be immune that protects him or her form being held liable it his conduct didnt violate clearly established statute or constitutional right D. Brown v. Muhkenberg Township a. Plaintiffs Rottweiler wandered to the parking lot, officer spotted him and shot her 5 times i. The dog had not displayed any aggressive behavior b. The browns allaeged that the officer had violated the fourth amendment i. The 4th amendment protects personal property and the dog was personal property E. Graham v. Connor a. Plaintiff was diabetic and went to the corner store to get juice to prevent insulin reaction, he thought the lineup was to long so he left the store. Officer saw him go in and out really quickly and started following the plaintiff and pulled him over i. The plaintiff told him the situation but the officer didnt believe him ii. Handcuffed him and didnt let him have the juice his friend had got him b. Was a violation of the 4th amendment F. Hudson v. McMillian a. The plaintiff is a prisoner and claims that the guards beat him in violation of the 8th amendment- against cruel and unusual punishment Defense to intentional torts-Privileges - Affirmative defenses o Has to raise these defenses in the answer to the complaint o Has to prove to the jury that the facts supporting the defenses are established Protecting against the apparent misconduct of the plaintiff A. Self-Defense a. Rule- privileged to use reasonable force to defend against harmful or offensive bodily contact and against confinement i. the actor correctly or reasonably believes to be necessary for his protection b. Reasonably deadly force- reasonably necessary to prevent death or seriously bodily harm c. Retreat- defendant who is attacked is not required to retreat, or avoid the need for self defense d. Excessive Force- any excessive force the person is held liable for e. Provocation- insults and arguments do not justify a physical attack f. Assault and imprisonment in self defense- your are privileged to commit what otherwise would be an assault or false imprisonment B. Defense of third persons a. In general one may defend others on the same basis that he may defend himself Arrest and Detention A. Peters v. Menard Inc.

a. Wright thought he saw a person stealing something from the store i. Followed the person, ran after him and then another employee ran after him, the person ended up in the flooded river and was drawn to the middle and he drowned b. Issue- is a merchant immune from liability under section 943.50 (3) for actions taken while attempting to detain a suspected shoplifter by perusing him or her off the merchants premises? c. Holding: yes immunity is provided B. Notes: private person is able to arrest for misdemeanors, not felonys Defense and repossession of property A. Katko v. Briney a. Defendant had a farm house that people were trespassing into i. Husband and her boarded it up and put up no trespassing signs ii. Set up a shot gun trap iii. A guy came in looking for bottles and got shot in the leg b. Defendant said they were allowed to use spring un in preventing unlawful entry i. You cant do this unless there is serious threat to the persons life B. Brown v. Martinez a. Plaintiff is a 15 year old boy, and two other boys went to the defendant house to steal watermelons i. The defendant shot a gun to scare them but ended up shooting one of them in the leg b. Trial court dismissed plaintiffs motion to dismiss i. Can only use firearms if the person is committing a felony ii. Law places higher value on human life than property iii. Appellee is liable for the damages he causes iv. double transferred intent- because it went from assault to battery and didnt mean to hit the boy, he intended on scaring the other boys c. Notes: i. Once possession has been lost, you cannot use force to get it back 1. Same thing with land 2. you cant use battery to protect the land 3. cant use deadly force but can use threat of deadly force C. Discipline a. Even if kids sue their parents for torts, their parents are still allowed to use force and confinement D. Observing privileges a. In self defense the question is whether the person reasonably believed that they were in danger b. In false imprisonment cases, a reasonable amount of detainment may be okay, but not for a long period of time i. All matters depend on reasonableness and degree Special Case of Consent a. used as a defense

b. if you give consent then there is no harm intended (therefor no battery) c. defendant has to take burden of proof that there was consent d. very few states plaintiff has to prove that no consent A. Robbins v. Harris a. Plaintiff was inmate, the prison guard made her give him head b. Plaintiff filed battery, defendant denied but then plead guilty c. Said that she had consented B. Ashcraft v. King a. Women had consented to an operation on the condition that any blood transfusions would come from family members b. Doctor used blood that was generally donated and gave the girl HIV C. Note for exceeding the scope of conditional consent a. Medical battery involves allegations that the doctor exceeded the scope of the patients consent D. Kennedy v. Parrott a. Plaintiff sued the doctor for doing stuff in the surgery that was not consented b. In this case, the doctor is allowed to because he is acting in good faith of his profession E. Doe v. Johnson a. Defendant transferred HIV to plaintiff b. Though she consented to the sexual contact, he did not tell her about the disease Privileges not based on plaintiffs contract A. Arrests and searches a. Officer can come in and execute a search or arrest warrant, but they are not allowed to invite the media B. Public Rights a. A user of public utility or common carrier has the privilege to enter appropriate portions of the premises, b. Cannot exclude people based on race or gender c. Very limited authority supports a privilege to exercise free speech rights by entering shopping center malls open to the public and campaigning on public issues there C. Necessity D. Surocco v. Geary a. Recover damages for blowing up and destroying the plaintiffs house and property during a fire b. Defendant said he had authority to to destroy the building c. Issue: where the person who tears down or destroys the house of another, in good faith, and under apparent necessity, during the fire, for the purpose of saving the building next to it and stopping its progress can be held personally liable in an action by the owner of the property destroyed d. Its okay when it is done in necessity i. Individual rights of property give way to the higher laws of impending necessity ii. Have to fall back to rules of common law

E. Wegner v. Milwaukee a. Two people were selling drugs, saw the police and they ran away i. Got out of their car and started running ii. One went in and hid at someones house iii. Police surrounded the house, the tear gas broke the windows and the flash bang grenades also caused damages iv. Plaintiff sued for damages v. Police said it was for public necessity 1. But you cant expect one person to bear to the costs of all society F. Ploof v. Puntam a. Plaintiff was sailing a sloop on the lake when a violent tempest arose i. Plaintiff moored the boat the defendants dock ii. Defendant unmoored the dock and caused damage b. The case was held for the plaintiff c. Many cases find that necessity will justify entries upon land and interferences with personal property that would otherwise have been trespass i. One may sacrifice the personal property of another to save his life or the lives of his fellows G. Vincent v. Lake Erie Transportation Co. a. Plaintiff moored her boat onto defendants dock b. did the right thing by staying tied to the dock c. no fault, liability w/o fault Negligence and Fault 4 elements of Negligence - duty of reasonable care - breach of that duty - causation - resulting damages Prima Facia Case of Negligence - P has to demonstrate that the injury suffered was to due to Ds actions - D must have duty toward P - D breached that duty - breach was a cause of Ps injury A. Institutions and Elements of Negligence a.Negligence may be any conduct that creates unreasonable risk of harm to others b.Litigation finance c.Liability insurance d.the role of settlement B. Assessing Responsibility a.Fault b.Causation c.Fixing the scope of responsibility d.A duty to take responsibility C. Legal elements of a negligence claim a. The defendant owed the plaintiff a legal duty i. the judges job to tell the jury the standard of care b.the defendant, by behaving negligently, breached that duty

i.b-e is for the jury c.the plaintiff suffered actual damage d.the defendants negligence was an actual cause of this damage e.the defendants negligence was a proximate cause of the damage f.*Plaintiff has to bear the burden of proving each of these D. The general duty of care: the prudent person standard a.Stewart v. Motts i.Issue: whether there exists a higher standard of extraordinary care for the use of dangerous goods over and above the standard of reasonable care ii.plaintiff asked judge that more care was required but the judge did do that iii.standard of care stays the same, if something is more dangerous than you should be more careful 1.objective standard 2.reasonable under the circumstances iv.judge is not allowed to charge high degree of care 1.judge can tell what the standard is 2.that is up to the jury as to what is reasonable b. Bjorndal v. Weitman i. plaintiff was driving, defendant hit her ii.defendant said that it was an emergency situation iii.plaintiff says that emergency instruction incorrectly states the law and confuses the jury 1.instead of telling them when people are negligent they told them when people are not negligent iv.Elements of emergency 1.you cannot foresee whats going to happen 2.what would a reasonable person do in the same situation a.need to act reasonably (min the risk) 3.they are factual circumstances that the jury should look at c. Shepherd v. Gardner i.plaintiff had vision problems and she tripped over a cement block in front of the defendants business ii.people with physical disability do not have a higher standard of care than a normal person iii.Defendant is arguing that the reasonable person would not have tripped iv.the conduct is only negligent only if it does not conform to that of a reasonably careful person with the same disability d. Creasy v. Rusk i.rusk was admitted into a healthcare center ii.he suffered from Alzheimer's iii.kicked the care aid lady iv.rusk moved for summary judgment v.he was not liable because she knew that he was like that 1.No negligence claim because there was no duty for defendant to be careful

vi.people with mental disability are still liable and this is bc of public policy 1.allocates losses between two innocent parties to the one who caused or occasioned the loss 2.provides incentive to those responsible for people with disabilities and restrain those who are potentially dangerous 3.people wont fake disability 4.avoids admin problems for court to figure out who is actually mentally disable 5.forces people with the disability to pay for the damage you do if they are to live in the world e. Hill v. Sparks i.defendant was operator of a earth moving machinery and had experience with it but made his sister go on and she got killed ii.if a person has more superior ability that the reasonable amount under the circumstances, then he should use that iii.the question for the jury is weather appellant met the standard of care f. Robinson v. Lindsay i.plaintiff lost a thumb in a snowmobile accident (the person driving was 13) ii.jury verdict in favor of the defendant iii.issue in the appeal is whether a minor operating a snowmobile is to be held to an adult standard of care 1.the trial court failed to give the jury those instructions 2.Under WPI 10.05 you need to look at how a diff child of the same age would act in the same or similar circumstances iv. the court finds that when a child is engaging in an inherently dangerous activity, the child should be held to a an adult standard of care 1.discourages children from carrying out inherently dangerous activities g. Hudson v. Putney i.11 year old boy was operating a golf cart and ended up hitting the plaintiffs leg ii.In this case it does need to be judged on a adult care standard because there was no evidence that adult skills were needed and there was no evidence that golf carts are only operated by adults iii.**GENERAL rule of negligence for children is that they are to be held to the same standard of care of a reasonably careful child of the same age, intelligence and experience Specification of Particular standards or duties A. Marshall v.Southern Railway Co a.plaintiff was driving at night, the person behind him would not turn down the lights and the plaintiff ran into the trestle supports b.trial court sustained defendants motion for nonsuit at the end of the plaintiffs evidence

i.the plaintiff failed to exercise due care at the time of his injury B. Chaffin v. Brame a. Plaintiff was driving, person behind him wouldn't dim his headlights and the plaintiff crashed into a parked unlighted truck b.defendant said that plaintiff was guilty of contributory negligence i.trial court let it go to the jury and which returned a verdict for the plaintiff ii.it is negligent to drive a automobile when others cannot see it from a distance C. Martin v. Herzog a. Defendant was driving at night and crossed the center lane and struck a buggy causing the plaintiffs death i. any vehicle on the road is required to have some sort of lights ii.trial judge said the plaintiffs violation of the statute should be considered as evidence of contributory evidence iii.jury found for the plaintiff, appellant division revered for new trial 1.Jurors have no dispensing power, by which they may relax the duty that once traveler on the highway owes under the statute to another b. Negligence per se is not applicable to all statues. It only applies to statutes that declare conduct unlawful but are silent as to civil liability i. contributory negligence- the plaintiffs own negligence lead to the injury ii.presumption- the burden of proof to the statutory violator iii.evidence of negligence D.Oguin v. Bingham county a. Plaintiffs are appealing the district courts summary judgment in favor of the County i.Find that the court erred in the negligence per se claim and reverse the summary judgment claim b. In finding negligence per se through violation of the statute is to establish the first two elements in a cause of action in negligence i.reduces plaintiffs burden from the standard conduct required and thus the elements of breach and duty are taken away from the jury c. To replace a common law duty of care with a duty of care from a statute or regulation i.the statute or reg must clearly define the required standard of conduct ii.must have intended to prevent the type of harm caused by the defendant iii.plaintiff must be apart of the class of persons the the statute or regulation was designed to protect iv.the violation must have been the proximate cause of the injury d. The dissenting opinion found that these elements were not met because the statute did not include safety but only health E. Impson v. Structural Metals

a.defendant tried to pass a car within 100 feet of an intersection; the care turned left into the intersection and was struck by the truck i.a statute prohibits passing within 100 feet of an intersection ii.Negligence was established as a matter of law (judgment for plaintiff) iii.Appeal court held that the defendant had some defenses iv.Defenses should be to do with: 1.violation is reasonable because of the actors incapacity 2. He neither knows nor should know of the occasion for compliance 3.he is unable after reasonably diligence or care to comply 4.he is confronted by an emergency not due to his own misconduct 5.compliance would involve a greater risk of harm to the actor or other v.In this case, the defendant did not have an acceptable excuse and the trial court was right F. 3 reasons for no negligence per se a. Statute was not violated b. There is an excuse c.minors violation of statute does not constitute negligence per se Negligence Breach of Duty A. N is overt conduct that creates unreasonable risks that a reasonable person would avoid. The risk of harm is unreasonable when a reasonable and prudent person would foresee that harm might result and would avoid conduct that creates the risk a.if the person behaved reasonably is a question of fact for the jury b.could the person actually see the risk c.did the person act like how a reasonable person would in the same situation d.What precautions are reasonable depends upon the risk of harm involved and the practicality of preventing it e.Diff between intentional wrongdoing and risk i.Risk is N f.small is breach of duty B.Pipher v. Parsell a.PF: Plaintiff appeals from the superiors courts decision as a matter of law in favor of the defendant appellee, Parsell. P says that court erred in ruling that D was not negligent. This court agrees that it should have gone to the jury b.Facts: Driving in car, and passenger grabbed steering wheel. D never said anything, did it again and P got hurt c.Trial court said that as a matter of law D did not have to do anything to i.there was no negligence in failing to discharge the dangerous passenger ii.D couldnt foresee that the guy was going to do that C.Indiana Consolidated Insurance Co. v. Mathew

a.PF: it was found that D was not held liable for the fire that happened in his brothers garage. D is appealing. D said breach of duty and is liable for the damages resulting from his negligence b.Facts: brother was out of town, P was pouring gas in the lawnmower and a small fire started and spread in the garage and he went and called the fire department i.But he was as careful as he could be ii.and he acted in his best judgment iii.life is greater than property D. Stinnett v. Buchele a.Tort action was filed by an employee for injuries sustained during the course and scope of his employment. Summary judgment for D because there was no showing that the injury was a cause of Ds negligence b.Facts: P was working on top of a barn and he fell off c.Find that P was contributory negligent d.P was in a better position to determine the risk E. Bernier v. Boston Edison Co. a.PF: P sued the lady and the company. Company is appealing b.Facts: The ladies care went our of control and hit a post that fell on the kids c. Company was negligent in designing the poles i.the company could foresee the risk ii.had problems with them before iii.should have made it safer for pedestrian F.United States v. Carroll Towing Company G.Applying the Risk-Utility Formula ss a.Estimating Risk b.Estimating costs or benefits c.The forgotten gopher hole d.The putative memory requirement e.Costs of memory f.Costs of information g.Variable Probabilities and Costs Assessing Responsibility when more than one person is Negligent A.Comparative Fault B.Apportionment among Defendants C.Joint and several liability a.plaintiff friendly D.Contribution E.Insolvent or immune tortfeasors F.Several liability and comparative fault appointment among tortfeasors a.defendant friendly b.only to the proportionate the amount of fault of D Proving and Evaluating Conduct A. Santiago v. First Student a.D operates a school bus and P said that the bud drive hit into a car and Ps face hit the seat in front b.Summary judgment for D

i.to assign negligence to defendant based on the evidence in the record, however would impermissibly cross the line from reasonable inference and venture into the realm of rank speculation c. Not enough to have theory, you need to have fact B.Upchurch v. Rotenberry a. P was riding in Ds car when D went of the road b.P sued for wrongful death of her son. Jury found for D. P filed for N.O.V, trial court denied the motion and this appeal c. D was the only witness d.There were to many differences in the stories of the witnesses and expert testimony i.there was a speed issue ii.presence of alcohol iii.officer was saying diff things iv.The court concluded that reasonable and fair-minded jury members could reach different conclusions 1.were the witnesses telling the truth 2.Jury found Ds witness to be more credible C. Process of determining fault a.small physical limitations b.accuracy of testimony c.using traffic rules to test fault d.changing safety requirements e.Credibility i. jury role ii.lawyers role iii.credibility and directed verdicts D. Forsyth v. Joseph a.P was a occupant of a car struck by the Villa truck b. trial court found D to be negligent bc of excessive speed c.Notes i.circumstantial evidence- evidence of one fact that permits an inference of another fact ii.Alert iii.Judge and Jury- jury decides inferences however if different inferences are possible then the judge decides d. Witnesses opinions as to facts and factual inferences i.Non-expert opinion 1.are not able to give ultimate opinions like that person was negligent but are able to give facts within his knowledge ii. Expert Opinion 1.are able to give testimony if is likely to be helpful to the jury a.one problem is that experts can have diff opinions b.witness may actually not be able an expert c.it can also overwhelm the jury E. Thoma v. Cracker Barrel

a.P took three or four steps away from the table when she slipped and fell b.Court granted Ds motion for summary judgment c.to recover from injuries in a slip and fall accident, P must show that the premises owner either created a dangerous condition or had actual or constructive knowledge of a dangerous situation d.jury is only able to look at facts e.Reversed and remanded F. Three common theories of tort liability a.the D created and failed to take reasonable actions to abate the hazard, as where a waiter spills sauce on the floor b.the defendant did not directly create the condition but discovered or should have discovered a condition created by others and failed to take reasonable steps to prevent injury from that condition c. D mode or method of business operations made it foreseeable that other would create a dangerous condition and D failed to take reasonable measures to discover and remove it G. Each accident must be reviewed in light of its own unique circumstances H.Walmart v. Wright a.P fell in Walmarts in a puddle of water in the outdoor garden area b.P sued for negligence in the maintenance care and inspection of the premises c.Jury found for P but it was reversed because they were acting in ordinary care i.just because they were not following their own manuals doesnt mean that weren't careful d.Notes i.General Rule 1.evidence that the defendant violated customary safety precautions of the relevant community is usually sufficient to get the plaintiff to the jury ii. Customary statutory violations iii.What custom proves 1.harm is foreseeable 2.defendant should have know about the risk 3.might prove that the defendant knew or should have knows of the risk 4.might prove that risk was a unreasonable one iv. Safety manuals 1.many courts have permitted P to bring in codes and stuff I. The T.J Hooper Providing Unspecified Negligence: The Special Case of Re Ipsa Loquiter A.Bryne v. Boadle a.P said he was walking when a barrel of flour fell on his head (didnt remember anything after this) b.Trial court non-suited for the plaintiff saying that P had not brought enough evidence forward c.P should have gave his case by affirmative defense i.affirmative proof of negligence

d.Unless P gives any evidence that should be submitted to the jury, D is not required to offer any defense e.There are many cases where no presumption of evidence can arise HOWEVER would not be right to say that in no case can presumption of negligence can arise from the fact of an accident B.Re Ipsa Loquiter P has to show three things a.the event is of a kind that does not normally happen in the absence of negligence b.other responsible causes including Ps conduct are ruled out by the evidence c.The indicated negligence is within the scope of the defendants duty to the plaintiff Modern Courts o persons injury is not one that does not normally occur in the absence of N o agent which caused the accident was under exclusive control of D o injured person was not at fault C. Procedural Incidents and the effect of Re Ipsa Loquiter a.Sufficiency of evidence- on the negligence issue P will survive motion for directed verdict and will go to the jury b.Instructing Re Ipsa Loquiter- if P has found evidence that supports Re Ipsa Loquiter then the judge gives the jury these instructions c.Permissible Inference effect- creates permissible inference that the jury can draw form but it does not shift the burden of persuasion of the plaintiff d.Abnormally strong inferences of negligence- if Ps evidence is really convincing and D has a really weak claim, then the court can grant Ps summary judgment or directed verdict for P e.The presumption Effect- not just common sense assessment of evidence i.The jury is told that once presumption applies D has the burden of showing he is not negligent ii.Judge will direct verdict for P unless D produces some evidence that he was not negligent D.Is negligence more probable than not? a.Koch v. Norris Public power District i. Ds power line fell starting a fire in ps property ii.inconclusive evidence that is was shot by a bullet iii.P can rest on Re Ipsa Loquiter bc power line are not suppose to fall like that iv.there must be something negligent in the way they were built or maintained v.Plaintiff can rely on Re Ipsa Loquiter b. Cosgrove v. Commonwealth Edison i. Electrical companies power lines were seen to be sparking and at some point were seen to fall ii.evidence found that a leak in gas caused the fire and injured P iii.P cannot rely on Re Ipsa Loquiter for the electrical company but can rely on it for the gas company bc fire like that doesnt occur regularly

c. judging probability- judges draw on common experiences over actual data d.Common knowledge- P first must show that N is more probable than not that the event does not normally occur without the negligence of someone e. Re Ipsa Loquiter and ordinary events- some courts do not permit this for normal accidents E. Warren v. Jeffries a.P instituted action to recover for his alleged wrongful death b.Nonsuit for P and P appeals c.Facts: D let P borrow car, kids were sitting in and one kid got run over d.P said D was N because and neglected to maintain adequate brakes as required i.didnt prove that D did or did not set the brake ii.there was no specific proof iii.probability that it was the driver was negligent goes down when they didnt get the car inspected e.*P need to sufficiently exclude inference of evidence of the responsibility of others besides defendant in causing the accident f.* you need to get proof to prove your case g.Re Ipsa Loquiter does not apply when there is direct evidence h.Just bc D has an expert witness saying something diff then P does not mean that Ps doesnt have Re Ipsa Loquiter F. Attributing the fault to D rather than other a.Giles v. City of New Haven i. Trial for D, appeal for P, D is appealing ii.P was stuck in an elevator and was hurt iii.P said that D was responsible to take care of it but didnt iv.D said P doesnt have Re Ipsa Loquiter bc she failed to show that D was the only person who had control of the elevator v.Even though P contributed to the negligence, she can still use Re Ipsa Loquiter b. Collins v. Superior Court i. P was put in care home, when she came home she had a broken leg and was dehydrated ii.problem was the there were two defendants but its is sufficient to raise Re Ipsa Loquiter iii.**usually you cant use it bc it is difficult to determine who is at fault Harm and Causation in Fact - third element of negligence prima facia case is that P must have suffered legally cognizable harm known as the actual damages - have to show actual damages along with defendants conduct was negligent A. Right v. Breen a. P stopped car at red light, D hit his car from behind b. D said that there were not injuries as a result of this accident and they were from his 5 previous accidents c.D said P does not have a valid claim because he did not prove causation and injury

- Cause in Fact o fourth element of a negligence claim is cause in fact o also called actual cause or factual cause o P must prove that there was legally recognized harm and that the harm was in fact caused by D o Hale v. Ostrow P was walking on side walk and bushes were blocking her way she stepped of the side walk and tripped over a concrete block Ostrow who owned the lot in front of which the bushes were, were granted summary judgment Both causation in fact and proximate cause must be proven by the plaintiff by preponderance of the evidence question for the jury we have to look at if Ps injury would have occurred but for Ds act if not, then it is Ds fault Ds act does not have to be the sole cause of the injury, just has to be one of the causes She could have gotten hurt without Ds negligence o Salinetro v. Nystrom P went into get an x-ray, she didnt know that she was pregnant at the time and the doctor doing the x-ray didnt ask if she was pregnant as a result her doctor said that she should have an abortion because they x-ray could have effected the baby she's suing for medical malpractice but she testified that even if they asked her she would have said no to being pregnant o Notes Actual harm must not have occurred absent the negligent conduct Actual cause issue is truly factual issue in the sense that it does not entail policy decisions Proximate cause is primarily a policy judgment If there are two separate people who cause the harm then they are each liable for the harm they caused individually If two people cause the same harm however then you have to see what fault apportionment rule to use In some cases D is still at fault even though Ds conduct was not negligent or illegal conduct was not a but for cause this is respondent superior liability o usually companies are responsible for their employees or partners are responsible for each other o Landers v. East Texas P had a small lake where he had fish but then salt water leaked into it from water disposal company and also from a oil company

o Anderson v. Minneapolis St Paul Ps property was burned down by Ds engine but D claims that other fires could have been the cause Scope of the risk - if i cant foresee the risk to you i cant be held N - read notes on pg 228** Proximate cause - fact question for jury - foreseeability risk to D when it occurred - was the harm foreseeable Delaney v. Reynolds - was D the proximate cause - if you induce the suicide through N, then you can foresee the risk - if there is a special relationship than you can see foresee the risk and you owe a duty of care - Traditional rule was the person was responsible - this case uses the scope of the risk principle o looks at foreseeable o P is a proximate cause but D could be to o issue for jury was it foreseeable if the answer is yes then he was the proximate cause Derdiarian v. Felix Contracting - if there had been a proper barrier it could have been prevented - it was foreseeable that a car could crash into it - kind--> more important, manner, extent o kind of injury was foreseeable o the manner was not foreseeable bc he had a seizure o extent o foreseeability of intervention Ventricelli v. Kinney System Rent a Car - D was not the cause in fact - court i saying it could have happened anyways Defenses - affirmative defense o D has to plead that in his answer o D has burden of proving it - Ps contributory N o your duty to yourself was breached Butterfield v. Forrester - P was riding to fast - D was negligent but so was P - traditional rule says that if P is even a little N, he cant get anything o maybe p was superseding cause o ps riding was the but for cause the harm o D has the burden of proving - Can look at as D having no fault Traditional rule

- contributory N as a bar Modified Comparative N - as long as Ps N wasnt greater than D - 50%P 50% D, p can still recover - but once Ps N goes to 51% and D 49%, than P does not get anything - Oregon more than 51% N on behalf P, then you dont recover - a few states use the less than D negligence Pure Comparative fault - it doesnt matter how negligent your are - if your 97% N, you are going to get 3% - New york and California - can compare anything (strict liability, N, intentional tort) - Compare ps N to all the defendants (take the aggregate approach) o so it doesnt matter that P is 45% and J is 5% G is 60% - not comparing causation Wassell v. Adams - we know what it would have cost the hotel to be more careful - we need to know what it would cost the P - judge assumes that it would cost p less then it would cost D - therefore in mod comp neg her negligence was less than in D o possner looks at economic efficiency o if cost is the same to both P and D to be more careful, then it is 50% to each person - the jury is giving her damages for counseling o Did the jury have the cost base approach o how did they compute what it costs her o it is an unguided instruction to the jury 1. Assigning shares of responsibility - if both defendant one and defendant two were proximate causes, but one is more at fault - dont just look at comparative fault but comparative causation Bexiga v. Havir Manufacturing - manufacturer did not have safety devices - plaintiffs N did not prevent him from getting damages because manufacturer safety device were suppose to protect against Ps N o manufacturer was suppose to protect P from his own N Christensen v. Royal School - one allegation was the P by consenting she was contributory N - but bc of her age she didnt owe a duty to herself - other allegation was to that P lied and concealed the truth from the school district - but this was also not an act of contributory N - her behavior led to the inability of the school to know and to protect her o so not contributory N, but doesnt allow her to prove her case - not denying behavior, but public policy is saying that children lack capacity understand and they dont owe themselves a duty to protect themselves from sexual abuse

Leroy Fibre v. Chicago Milwaukee - two legal principles- property and tort value - property values win in this case - you cant use your property that risks your neighbors property o your property rights get trumped - when the risk it to yourself, you can do whatever you want Traditional Exceptions to the Contributory N Bar - you get full recovery if you are rescuer even if you were contributory N - if you engage in a reckless matter when rescuing, you get nothing Last clear chance - when D has the last clear in injuring you, contributory N is ignored - you have to helpless and unable to avoid the injury - most states dont use it anymore Reckless or Intentional Misconduct Plaintiffs illegal conduct - no clear cut rule - should your illegal activity bar your from recovery - no, you can still recover, but your illegal activity does cut down on the injury o but depends on the illegal activity o depends on case to case o more serious the crime the more likely a car Affirmative defense - D has the burden to prove Express Assumption of the Risk - does not negate the fact that i assumed it, that you are negligent - we are free to contractual to agree to take the risk of others N - does not void public policy - both people consent to it Boyle v. Revici - Jury found for p, bc of comparative N - Appeals said that jury should have been instructed on express assumption of the risk o if P assumed the risk then she would be barred from recovery - contractual assumption of risk o this is still valid even in the comparative fault world o doesnt have to be a written contract Tunkl v. Regents of University of California - the agreement was void bc it was against public policy - they made P sign an agreement that the hospital was not liable (that was the only way he was allowed to be treated) - hospital is an essential service - usually waivers are valid except when they violate public policy - 1.service provided is a public necessity - 2.service to everyone in society

- 3.the nature of service is essential - 4. standard contract - 5. after the contract you are under the control of the person making you sign the contract Moore v. Hartley Motors - the waiver was vague - it was only about the injury that could be cause (they werent liable for anything to do with the injury) - language missing about the N of Hartley motors - there was nothing about liability for general negligence - there are inherent risks in the activity - clause was to vague and is not binding bc P did not know what it includes - you need to see if risk that caused injury was within scope of release - cant use a waiver clause that is to broad Implied assumption of risk - p knew risk - appreciated risk - voluntarily accepted it - if you can prove that, then you are not liable for your N - if P is reasonable in confronting risk, then there is no N on part of P and they can recover everything - if P was unreasonable in confronting risk, then there is N on part of P and the damages are reduced accordingly - also called secondary assumption of risk Betts v. Crawford Avila v. Citrus Community College - primary issue that was that they didnt protect P from the pitch - but P was assuming the risks of the game - D has to prove that is a custom of the game - issue of duty -- D is saying that they dont owe you a duty - Secondary- P is saying that D breached a duty (Oregon has Secondary) o P has to show that D had a duty to protect o only duty