Negligence _________________________________________________________________________ 8 Elements of the PRIMA FACIE CASE ________________________________________________ 8 DUTY ______________________________________________________________________________ 9 Heaven v.

Pender General Duty: to use ordinary care and avoid danger of injury ______________ 9 Winterbottom v. Wright Privity Rule (No K = no recovery) _____________________________ 9 Loop v. Litchfield (p. 58) ___________________________________________________________ 9 Losee v. Clute (p. 58) No duty to avoid property damage under Winterbottom _________________ 9 _________________________________________________________________________________ 9 Thomas v. Winchester Imminently Dangerous Products; Rejection of Winterbottom ___________ 9 Delvin v. Smith (p. 59) scaffolding was imminently dangerous to human life _________________ 9 Torgesen v. Schultz (p. 59) _________________________________________________________ 9 Statler v. George A. ray Mfg. Co. (p.59) _______________________________________________ 9 Reasonably Foreseeable: Duty: between D and parties that could PROBABLY be injured by Ds carelessness _________ 10 MacPherson v. Buick Motor Co. (p. 59) Rejects Privity rule strict products liability _________ 10 Mussivand v. David (p. 67) STD: Duty: reasonably foreseeable harms ____________________ 10 Exceptions to No Duty Rule ____________________________________________________________ 10 1. Special Relationships that Create a Duty ____________________________________________ 10 Farwell v. Keaton: companions on a social venture must help _____________________________ 10 2. Rescue ________________________________________________________________________ 11 Imminent Peril to P caused by D: (When actor knows or should know that his conduct puts other at risk, actor has duty to make reasonable effort to prevent harm._____________________________ 11 Voluntary Undertakings: Once rescue is voluntarily undertaken, rescuer owes a duty to the victim to perform the duty with reasonable care. _____________________________________________ 11 3. Premises Liability- Entrance to land Status ________________________________________ 11 4. Pure Economic Loss _____________________________________________________________ 11 Nonfeasance: Omission _______________________________________________________________ 12 Osterlind v. Hill Only duty was to provide a reasonably safe canoe. Foreseeable harm is irrelevant 12 Baker v. Fenneman & Brown Properties, RESTERAUNT! _____________________________ 12 Premises Liability ____________________________________________________________________ 13 Trespasser (no authorization, intentionally enters)_______________________________________ 13 Licensee (social guest owner knows of presence, takes property as they find it) _____________ 13 Invitee (benefits the landowner/invitee, typically a business relationship)____________________ 13 Exception to general rule of no duty _______________________________________________ 14 Attractive Nuisance: owner must have reason to foresee that children might enter the property and be endangered by the condition. ____________________________________________________ 14 Artificial conditions _____________________________________________________________ 14 Leffler v. Sharp ________________________________________________________________ 15 Pure Economic Loss _________________________________________________________________ 15 Aikens v. Debow (Truck Driver) ___________________________________________________ 15 Tarasoff v. The Regents of the U of California (failure to warn) _________________________ 16 Duty & Breach ______________________________________________________________________ 17 Myers v. Heritage Enters. (Hoyer lift ) Not medical professional = reasonable person _________ 17 Martins v. Evans (p. 142) (trailer in reverse) ordinary care: reasonable under circumstances? __ 17 Exceptions to Ordinary Care ________________________________________________________ 17 Pingaro v. Rossi (dog bite) strict liability limitation _____________________________________ 17 Jones v. Port Authority of Allegheny County (p. 148) common carriers highest ____________ 17 Extraordinary Circumstances _______________________________________________________ 18 Campbell v. Kovich (lawn mowing) ________________________________________________ 18 Adams v. Bullock (trolly wires) no foreseeability of an extraordinary event _________________ 18

Defining the Reasonable Person ________________________________________________________ 19 Vaughan v. Menlove objective standard for reasonable person ___________________________ 20 Reasonable Child Standard, Tender Years Doctrine ____________________________________ 21 Appelhans v. McFall - 3 jurisdiction claddifications ____________________________________ 21 Parental Supervision (negligent instrumentation ) ______________________________________ 21 Standard for Industry and Professional Custom ____________________________________________ 22 The T.J. Hooper (p. 171) custom is NOT the measure of reasonable care ___________________ 22 Profession: Medical, Attorney, and Accounting: standard of practice ______________________ 23 Johnson v. Riverdale Anesthesia Assocs., P.C. (p. 173) reasonable physician standard _________ 23 Largey v. Rothman (p. 177) prudent patient standard informed consent ___________________ 23 Helling v. Carey (p. 186) Hooper Test applied to Med. Mal. OUTLIER ___________________ 23 Hand Test: Cost- Benefit Analysis _______________________________________________________ 24 United States v. Carroll Towing Co. (p. 189) B < PL Analysis (cost-benefit) _______________ 24 Rhode Island Hosp. Trust Natl Bank v. Zapata Corp. (p. 194) cheapest cost avoider _______ 24 Res Ipsa Loquitur (thing speaks for itself) ________________________________________________ 27 3 Elements of RIL prima facie case: __________________________________________________ 27 Byrne v. Boadle (p. 205) accident in itself proves negligence ____________________________ 27 Kambat v. St. Francis Hosp. (p. 205) need not eliminate other causes for res ipsa ____________ 27 Arguments for Medical Cases _______________________________________________________ 27 Ybarra v. Spangard -- Benefit of res ipsa with multiple parties _____________________________ 28 Causation Causation Analysis ________________________________________________________________ 29 Risk Rule refinement of foreseeable consequences rule _________________________________ 29 Proximate Cause _____________________________________________________________________ 30 Polemis (p. 274) direct causation __________________________________________________ 30 Reasonable Foreseeability __________________________________________________________ 30 Wagon Mound (no. 1) (p. 275) : reasonably foreseeable to the D at the time they acted carelessly _ 30 Wagon Mound (no. 2) (p. 275) _____________________________________________________ 30 Union Pump Co. v. Allbritton (p. 269) causes of injury v. pre-condition for injury ____________ 30 Jolley v. Sutton London Borough Council (p. 277) RISK RULE _________________________ 30 Ventricelli v. Kinney Sys. Rent A Car, Inc. (p. 284) _____________________________________ 31 Time Expiration of Risk did the risk subside? ________________________________________ 31 Marshall v. Nugent (p. 287) ________________________________________________________ 31 Superseding Cause __________________________________________________________________ 31 Pollard v. Oklahoma City Ry. Co. (p. 288) intervening party sufficient _____________________ 31 Clark v. E. I. Du Pont de Nemours Powder Co. (p. 292) intervening party insufficient _________ 32 Scott v. Shepherd -- Squib Case_____________________________________________________ 32 Palsgraf v. Long Island Railroad Co. (p. 299) breach must be of a duty to P, not to a 3 rd party __ 33 Petitions of the Kinsman Transit Co. (p. 314) responsible for full extent of breach ____________ 33 Preponderance Standard: More likely than not ____________________________________________ 34 Skinner v. Square D Co. (p. 221) show causal relationship between breach and injury _________ 34 Loss of Chance Doctrine: ___________________________________________________________ 35 Falcon v. Memorial Hospital (p. 231) loss of chance of survival __________________________ 35 Multiple Necessary but-for Causes ____________________________________________________ 36 Substantial Factor Test ____________________________________________________________ 36 McDonald v. Robinson (p. 239) multiple necessary causes ______________________________ 36 Multiple Sufficient Cause ______________________________________________________________ 37 Anderson ______________________________________________________________________ 37 Aldridge v. Goodyear Tire & Rubber Co. (p. 242) Substantial Factor Test __________________ 37 Alternate Causation: Burden Shifting ___________________________________________________ 37

Summers v. Tice (p. 259) Alternative Causation ______________________________________ 37 Proximate Cause and Affirmative Duties _________________________________________________ 38 Admissibility of Expert Opinion _________________________________________________________ 38 Daubert test: _____________________________________________________________________ 38 Dalal v. City of NY (p.338) statute defines the standard of care __________________________ 40 Bayne v. Todd Shipyards Corp. (p.339) violation of a regulation is neg. per se_______________ 41 Victor v. Hedges (p.342) violation must be of statutes standard of conduct and victim must be part of intended protected class _________________________________________________________ 41 Martin v. Herzog (p.347) __________________________________________________________ 42 Wrongful Death Statutes $ Damages _____________________________________________________ 43 Survival Actions Personal Injury ________________________________________________________ 43 Loss of Consortium___________________________________________________________________ 44 Nelson v. Dolan (p.359) D liable for decedents fear of impending death (not common) _______ 44 Implied Rights of Action ______________________________________________________________ 46 Tex. & Pac. Ry. Co. v. Rigsby (p.370) statute creates standard of conduct, implied ___________ 46 J.I. Case Co. v. Borak (p.371) congressional purpose LIMIT of IRA _____________________ 47 Cort v. Ash (p.376) Determining whether to infer a private ROA from a statute: _______________ 47 Defenses Contributory Negligence ______________________________________________________________ 50 Contributory Elements _____________________________________________________________ 50 Comparative Fault ________________________________________________________________ 51 United States v. Reliable Transfer Co. (p.393) divided damages of comparative fault _________ 52 Hunt v. Ohio Dept. of Rehabilitation & Correction (p.395) modified comparative ____________ 52 Martin v. Herzog: ________________________________________________________________ 53 Contributory negligence vs. Comparative Fault: _______________________________________ 53 Assumption of Risk ___________________________________________________________________ 54 Assumption of Risk Elements : ______________________________________________________ 54 Express Assumption of Risk ________________________________________________________ 55 Jones v. Dressel (p.404) extreme sport not in public interest_____________________________ 55 Tunkl Factors to determine validity of exculpatory agreement (Majority Rule) ______________ 56 Dalury v. S-K-I, Ltd. (p.409) public policy cheapest cost avoider VT rule ________________ 56 Implied Assumption of Risk ________________________________________________________ 57 Murphy v. Steeplechase Amusement Co. identify a knowing encounter of risk and treat that as implied assumption ______________________________________________________________ 57 Smollett v. Skayting Dev. Corp. (p.414) ______________________________________________ 57 Ranney v. Parawax Co. (p.424) duty to investigate once one knows or should know of condition 58 Intrafamilial and Charitable Immunities _________________________________________________ 59 Sovereign Immunity __________________________________________________________________ 59 Duty Exemption __________________________________________________________________ 60 Riley v. United States (p.437) FTCA doesnt waive immunity for failing discretion acts _______ 60 Public Duty Rule = no duty _________________________________________________________ 60 Riss v. City of New York (p.443) Public Duty Rule ____________________________________ 60 Kircher v. City of Jamestown (p.452) Creation of Special relationship have duty to rescue! ____ 60 Strauss v. Belle Realty Co. (p.453) ConEd is not liable under Public Duty Rule (orbit of liability) 60 Cheapest Cost Provider: Calabresi __________________________________________________ 61 Damages Damages ___________________________________________________________________________ 62

#1 ECONOMIC -- past and future medical bills, lost earnings, repair costs __________________ 62 Medical expenses ________________________________________________________________ 62 Earnings Capacity _______________________________________________________________ 62 #2 NON ECONOMIC -- As result of tort, depression, anxiety, ____________________________ 62 Pain and suffering _______________________________________________________________ 62 Punitive Damages: The icing Almost never get awarded; 3% _____________________________ 62 Hedonistic Damages loss of enjoyment of life___________________________________________ 62 Catch- All _______________________________________________________________________ 62 Nominal damages: ______________________________________________________________ 62 Injunctive Relief:_______________________________________________________________ 62 Eggshell Plaintiff __________________________________________________________________ 63 Smith v. Leech Brain & co. Ltd. (p.463) Eggshell Plaintiff Rule __________________________ 63 Kenton v. Hyatt Hotels Corp. (p.469) Excessive verdict determination? ____________________ 63 Eggshell Plaintiff and the Duty Element _______________________________________________ 63 Mustapha v Culligan of Canada Egg Shell Psyche _____________________________________ 63 Duty to Mitigate Damages Pre & Post ________________________________________________ 64 Collateral Source Rule _____________________________________________________________ 64 Spier v. Barker Pre-Accident Duty to Mitigate (seat belt) ________________________________ 64 Punitive Damages ____________________________________________________________________ 65 Reckless disregard for others well-being: _____________________________________________ 65 Deliberate indifference to others physical well-being: ___________________________________ 65 Wantonness ______________________________________________________________________ 65 Willfulness: ______________________________________________________________________ 65 National By-Products, Inc. v. Searcy House Moving Co. (p.485) gross negligence not sufficient for punitive damages ________________________________________________________________ 65 Mathias v. Accor Economy Lodging, Inc. (p.489) gross negligence = punitive ______________ 65 Menlove v. Mathias ______________________________________________________________ 65

Vicarious Liability ___________________________________________________________________ 66 Characteristic Activity Test Scope of Employment _________________________________ 66 Respondeat Superior ______________________________________________________________ 67 Taber v. Maine (p.502) respondeat superior for action characteristic of employment __________ 67 Joint Liability and Contribution ________________________________________________________ 68 #1 Multiple Tortfeasors:____________________________________________________________ 68 (1) Single ________________________________________________________________________ 68 (2) Indivisable harm _______________________________________________________________ 68 (but-for failure of both Ds to act reasonably, the injury would not have occurred) ___________ 68 Ravo v. Rogatnick (p.513) joint and several liability indivisible injury ___________________ 68 New & Hybrid Schemes ____________________________________________________________ 68 Phantom Tortfeasors:______________________________________________________________ 68 Bencivenga v. J.J.A.M.M., Inc. (p.521) cannot attribute fault to unknown parties _____________ 68 Blazovic v. Andrich ______________________________________________________________ 69 Martignetti v. Haigh Farr - Pro Rata Determination of Liability ____________________________ 69 Acting Independently (or conspiring) _________________________________________________ 69 Comparative Responsibility: Damages Between Tortfeasors ______________________________ 69 - Restitution: Applies the apportionment number jury gave at trial ________________________ 69 Contribution: ___________________________________________________________________ 69

Indemnification _____________________________________________________________________ 69 Interinsurance Exch. of the Automobile Club v. Flores (p.527) no insurance for willful/intentional acts ___________________________________________________________________________ 70 Getting to the $$ _____________________________________________________________________ 70 Intentional Torts Battery _____________________________________________________________________________ 71 Prima Facie Case _________________________________________________________________ 71 Cecarelli v. Maher (p. 552) harmful touching _________________________________________ 71 Paul v. Holbrook (p.553) offensive touching__________________________________________ 71 Beach v. Hancock: must be a reasonable fear __________________________________________ 71 Nelson v. Carroll (p.558) intent to cause contact, consequences of accident irrelevant _________ 71 Wagner v. State (p.566) mentally disabled persons can be liable for battery _________________ 72 Spivey v. Battaglia (p.576) well-known exception to intent to touch standard ________________ 72 Assault_____________________________________________________________________________ 73 Prima Facie Case _________________________________________________________________ 73 Beach v. Hancock (p. 579) reasonable fear constitutes assault ____________________________ 73 Brooker v. Silverthorne (p.580) no assault for conditional threat or mere words ______________ 73 Vetter v. Morgan (p.583) words constitute assault + other circumstances/acts _______________ 73 Phelps v. Bross aiding and abetting assault___________________________________________ 73 Consent ____________________________________________________________________________ 74 Express Consent Issue will always be scope, usually through waiver/document ______________ 74 Implied Consent Ds perspective, was Ps permission giving up right reasonably and genuinely perceived? _______________________________________________________________________ 74 Koffman v. Garnett (p. 588) scope of consent ________________________________________ 75 Self-Defense and Defense of Others _____________________________________________________ 76 Haeussler v. De Loretto (p.599) - non-lethal force privileged to protect from harm _____________ 76 Defense and Recapture of Property ______________________________________________________ 77 Katko v. Briney (p.603) cannot use deadly force for trespass to protect property _____________ 77 False Imprisonment __________________________________________________________________ 78 Prima Facie Case: _________________________________________________________________ 78 Fojtik v. Charter Med. Corp. (p.627) P must prove a just fear of injury for FI ________________ 78 Unintended Consequences _____________________________________________________________ 79 Vosburg v. Putney (p.610) Eggshell Skull Rule _______________________________________ 79 Cole v. Hibberd (p.613) Intentional Nature of Act is all that is important ___________________ 79 Transferred Intent ___________________________________________________________________ 80 In re White (p.621) transferred intent _______________________________________________ 80 Shopkeepers privilege: _______________________________________________________________ 80 Elements ________________________________________________________________________ 80 Grant v. Stop-N-Go Market of Texas, Inc. (p.636) shopkeepers privilege __________________ 80 IIED Prima Facie Case (rarely succeed): ______________________________________________ 82 Dickens v. Puryear (p.650) future threats are actionable as IIED __________________________ 83 Littlefield v. McGuffy (p.655) threats must be accompanied by aggravating factors ___________ 83 165 Mulberry Street Corp. v. Columbia University (p.669) Subjectivity for outrageousness ____ 83 NIED: Duty: Impact, Zone of Danger, Bystander __________________________________________ 84 Impact Rule: _____________________________________________________________________ 84 Wyman v. Leavitt (p.700) BAD LAW! ~ Physical Impact Test ___________________________ 84 Zone of Danger ___________________________________________________________________ 84 Robb v. Pennsylvania R.R. Co. (p.701) ZONE OF DANGER ____________________________ 84

Consolidated Rail Corp. v. Gottshall (p.705) Zone of Danger ~ FELA claims ________________ 85 Bystander Claims _________________________________________________________________ 85 Waube v. Warrington (p.731) bystander must have feared for own life for ED _______________ 85 Dillon v. Legg (p.734) bystander rule zone of danger not necessary ! _____________________ 85 Thing v. La Chusa (p.741) Bystander Rule limit: those at the scene only ___________________ 85 Ochoa v. Superior Court __________________________________________________________ 85 Undertakings to Be Vigilant of Anothers Emotional Well-Being ____________________________ 86 Beul v. Asse Intl., Inc. (p.722) special relationship: exchange student company rep. _________ 86 Brown v. Kendall (p.760) no recovery for pure accident; no liability without fault ____________ 87 N.Y. Central R.R. Co. v. White (p.767) LIABILITY WITHOUT FAULT!!! __________________ 87 Property Torrts Trespass to Land _____________________________________________________________________ 87 Prima Facie Case: Trespass to Land__________________________________________________ 87 Trespass vs. Battery (although they share the same consent defense): ______________________ 88 Burns Philp Food, Inc. v. Cavalea Contl Freight, Inc. (p.774) intent to invade space__________ 88 Kopka v. Bell Tel. Co. (p.780) liable for all personal injuries proximate and indirect ________ 88 Defense to Trespass: NECESSITY ______________________________________________________ 89 Ploof v. Putnam (p.783) trespass by necessity ________________________________________ 89 Vincent v. Lake Erie Trans. Co. (p.784) necessity, but creates a liability to P damage _________ 89 Failure to Leave or Remove _________________________________________________________ 90 Rogers v. Barod of Road Commissioners _____________________________________________ 90 Defense to Trespass: CONSENT ________________________________________________________ 90 Trespass and Damages ________________________________________________________________ 90 Damages for Trespass (do not have to be proven in order to prevail)_______________________ 90 Nominal _______________________________________________________________________ 90 Parasitic Damages _______________________________________________________________ 90 Injunction- _____________________________________________________________________ 90 Punitive _______________________________________________________________________ 90 Jacque v. Steenberg Homes _____________________________________________________ 91 Beavers v. West Penn Power Co __________________________________________________ 91 Brink v Summers _____________________________________________________________ 91 Hanson v. Estell ______________________________________________________________ 91 Granberry v. Jones ____________________________________________________________ 91 Trespass to Chattel ___________________________________________________________________ 92 Thyroff v. Nationwide Mut. Ins. Co. (p.791) physicality of property doesnt matter! __________ 92 Conversion _________________________________________________________________________ 92 Prima Facie Case _________________________________________________________________ 92 CONSENT MEDIA TRESPASS & OTHER DEFENSES __________________________________ 93 Copeland v. Hubbard Broadcasting, Inc. (p.799) Consent only to what is authorized __________ 93 Nuisance ___________________________________________________________________________ 94 Public Nuisance ___________________________________________________________________ 94 Private Nuisance __________________________________________________________________ 94 Sturges v Bridgman ______________________________________________________________ 94 Nuisance vs. Trespass: _____________________________________________________________ 95 Sturges v. Bridgman (p.803) Nuisance must be considered within circumstances ____________ 95 Penland v. Redwood Sanitary Sewar Serv. Dist. (p.812) Balance harms ____________________ 95 Boomer v. Atlantic Cement Co. (p.819) injunction, but less sympathy for D _________________ 95 Policy Private vs. Public Nuisance Creation of Land Rights _____________________________ 96 Elements to consider: Is activity ultra hazardous? (R: 520) ______________________________ 97 Rylands v. Fletcher (p.825) unnatural activity requires no proof for SL ___________________ 97

Turner v. Big Lake Oil Co., 1937 ___________________________________________________ 97 Klein v. Pyrodyne Corp. (p. 827) abnormally dangerous activity _________________________ 97 Turner v. Big Lake Oil Co. salt water is natural in TX because of commonness ______________ 97 Siegler v Kuhlman _______________________________________________________________ 98 Prima Facie Case _________________________________________________________________ 99 Escola res ipsa used for SL (Treynors concurrence stating SL) _________________________ 101 Henningsen v. Bloomfield Motors, Inc. (pg. 824): Henningsens 10 day old car had defect and ended up crashing; sued dealer __________________________________________________________ 102 GREENMAN v. YUBA POWER PRODS., INC. (pg. 826) SL for PL ____________________ 103 B. Defenses______________________________________________________________________ 106

o o

fails to act; Person generally doesnt have a duty to assist another claims mental suffering without physical impact; and No recovery for pure mental suffering without physical manifestations herself is in physical danger, frightened for her safety allowed to recover witnesses an accident to another person, and s mental suffering is mainly her fear for the others safety; analysis: Zone of impact If person is close relative but not in zone of impact mostly allowed to recover hears about the accident later not allowed to recover suffers solely intangible economic harm Intangible economic harm in addition to physical injury or direct property damage - can tack on economic loss

Duty= Forseeability + policy considerations Was there a duty? - Forseeability of risk is the primary consideration in determining the scope of duty to an actor, beyond the question of Forseeability involves policy considerations underlying the core issue of the scope of the legal protection o Likelihood of injury o Magnitude of the burden of guarding against it o Consequences of passing the burden on Def. EXCEPTION (Special Foreseeability Rule): D would be liable only for damages proximately caused and requiring that D must have knowledge or special reason to know the consequences of the tortious conduct in terms of the people likely to be victimized and the nature of the damages likely to be suffered. D knows or has reason to know that P is likely to suffer such damages from its conduct. D failing to adhere to this duty may be liable for some economic damages proximately caused by its breach of duty. o People Express: When liability and foreseeability stand in direct proportion to one another, the more particular the foreseeability that economic loss will be suffered by the P as a result of Ds negligence, the more just is it that liability be imposed and recovery allowed. o Special Relationshipcontractor owes a duty of care to a tenant of a building: Where a special and narrowly defined relationship can be established between the tortfeasor and P who was deprived of an economic benefit, the tortfeasor can be held liable

Negligence

Elements of the PRIMA FACIE CASE

Actor is subject to liability to other person P for negligence if: (1) P has suffered an injury; (2) A owed a duty to a class of persons including P to take care not to cause an injury of the kind suffered by P; Qualified. Standard of care for doctors, innkeepers, common carriers, etc. Unqualified. Standard of care for the public in general (3) A breached that duty of care; (4) As breach was an actual and proximate cause of Ps injury.

General rule: an individual doesnt have a duty to aid or protect another person, even if he knows that person needs assistance
Foreseeable Plaintiff - Duty: There is always a duty not to cause a foreseeable harm of personal injury Unforeseeable Plaintiff - D will act negligently towards a clearly foreseeable plaintiff which ultimately injures someone else. o Andrews: If a duty towards A is breached which injures B, B is also a foreseeable P to whom a duty is owed Exception: something that is outrageously unforeseeable o *Cardozo: If P is within the foreseeable zone of danger that P is foreseeable

After MacPherson, manufacturer has THREE options: (cite to MacPhersn) 1) INSURE (i.e., by purchasing more insurance) 2) INVEST (i.e., take safety measures to reduce number of accidents) OMIT (i.e., stop making the product Test for foreseeability is whether a reasonably prudent person would have anticipated that an injury was likely to result from performance or nonperformance of an act.

Nonfeasance: failure to perform an action required by law; absent a duty of care Misfeasance: transgression of law; general duty to take care not to cause foreseeable physical injury or property damage applies; duty is presumed.

DUTY Ways a D can avoid liability: 1. Omit/reduce the risky activity 2. Invest in safety 3. Insurance ~ this doesnt reduce, but anticipates payment for injuries

Heaven v. Pender General Duty: to use ordinary care and avoid danger of injury
Reasonable foreseeability: if a person is placed in circumstances in regard to someone else that everyone of ordinary sense would see that if ordinary care was not exercised there would be injury, the person has a duty to use ordinary care to avoid the danger of injury.

Winterbottom v. Wright (p. 55) Privity Rule (No K = no recovery) D has K with A to build coaches; A hires P; D has no K with P - Rule: P injured by carelessness of manufacturer cannot recover in tort without K between P and manufacturer: no duty without K! Loop v. Litchfield (p. 58) - D manufactured wheel and patched up a missing part. Sold it to A who sold it to P. P had fatal accident, but no duty owed by D because of Winterbottom Privity rule.

Losee v. Clute (p. 58) No duty to avoid property damage under Winterbottom
D manufactured boiler for use in paper mill. No duty owed by manufacturer to plaintiff living adjacent to paper will when boiler exploded. No duty to avoid property damage under Winterbottom

II. Privity + Imminent Danger: D has a duty to exercise reasonable care to parties with which he has contracted and when introducing an imminently dangerous thing into the world. Thomas v. Winchester (p. 57) Duty is owed to avoid foreseeable danger negligence via danger to life
o o Manufacturer sells to distributor, to seller, to buyer. Buyer gets sick from mislabeled poison. Duty is owed to avoid foreseeable danger negligence via danger to life

Delvin v. Smith (p. 59) scaffolding was imminently dangerous to human life o Painters killed from Ds careless erection of scaffolding. Duty exists because the scaffolding was imminently dangerous to human life. Torgesen v. Schultz (p. 59) o P lost eye from carbonated bottle sold to employer by D. Ruled that this was an inherently dangerous object. Statler v. George A. ray Mfg. Co. (p.59) o Negligent manufacture of coffee urn that injures is inherently dangerous.

Reasonably Foreseeable: Duty: between D and parties that could PROBABLY be injured by Ds carelessness
MacPherson v. Buick Motor Co. (p. 59) Rejects Privity rule strict products liability - Manufacturer owes a duty to P who purchased car from a car dealer. Failure to inspect wheel caused car accident creating a thing of danger. - Rule: duty owed by manufacturer of something that presents a risk because of negligent making Mussivand v. David (p. 67) STD: Duty: reasonably foreseeable harms D infected Ps wife with STD: reasonably foreseeable that D would injury P via wife (foreseeable partner). D had the duty to prevent spread of STD. Duty: The same as an ordinarily reasonable/prudent person in similar circumstances would have anticipated injury would occur from performance or non-performance. Exercise care necessary to avoid injury. Qualified Duties of Care exceptions to the GENERAL RULE

Special Relationships that Create a Duty

Farwell v. Keaton: companions on a social venture must help Good Samaritan Immunities Immunize off-duty professionals from liability for negligence in a rescue A duty to give assistance may arise out of a special relationship - Knowledge of threat from intervening third-party wrongdoer (see Tarasoff) Special relationship (carrier-passenger, property owner-invited guest, school-student, employer-employee, hospital-patient, prison-prisoner but not trespasser-owner o Common carrier with passenger o Innkeeper with guests o Business / possessor of land that opens premises to public (see: TB Harms) o Landlord and Tendants o Custodian and those in custody o Employer-employee o Hospital-patient - Establishes Friendship: o Yes: Companions on a social venture (Farewell v. Keaton drunk girls) o No: no duty, P must show that they encourages or otherwise participated Theobald v. Dolcimascola Russian roulette) Duty to protect from 3rd party misconduct rd - Doctor to 3 parties o health officials to report contagious disease o epilepsy patients of safety during driving o AIDS/infectious disease via intimacy tell family members No Special Relationship: o Student-Fraternity (Coghlan v. Beta Theta Pi Fraternity) o Driver-Passenger (Poole v. Janeski) ~ no seatbelt duty

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Rescue
Cause of circumstances that requires need for rescue - Voluntary undertakings (if promise to rescue, there is duty; if you initiate a rescue, theres a duty to perform rescue reasonablyyou cant abandon mid-rescue) - Promise a rescue > must follow through with reasonable care
Imminent Peril to P caused by D (p. 84) When actor knows or should know that his conduct puts other at risk, actor has duty to make reasonable effort to prevent harm. Voluntary Undertakings (p. 85): Once rescue is voluntarily undertaken, rescuer owes a duty to the victim to perform the duty with reasonable care. Wicker v. Harmony Corp: Contractor who agrees in K to ensure duty of workers owes a duty to take safeguards against P from being injured on the job.

Manley v. S.R. Smith: If you warn people, duty continues o Trade organization that voluntary circulated material concerning risks of aboveground pools owes a duty to update that information when aware of new risks. Redman v. Stone: V helps stalled driver in them middle of the road, another drivers crashes into the car and suffers an injury. V owes a duty of care to the original driver, but not to the driver that crashed. Praet v. Sayerville: Police and fire personal who already are under a duty to perform rescues

Premises Liability- Entrance to land Status Pure Economic Loss

There is no duty if there is a risk of limitless expansion of duty, there must be a qualified duty

11

Nonfeasance: Failure to perform an action required by law; absent a duty of care

Osterlind v. Hill (p. 76) Only duty was to provide a reasonably safe canoe. Foreseeable harm is irrelevant

Renter of canoes owes no duty to rescue drunks that rented canoes and drowned. Rule: D owes no duty to P to rescue since D did not put P in peril. Had D rented P a defective canoe, D would owe duty, but no such evidence. Ps Arg: Ps intestate and Ryan were intoxicated and incapacitated to enter into any valid contract or to exercise any care for their own safety and that the condition of the intestate was involuntary and induced through no fault of his own Ds Arg: Based on the facts of the declaration, the intestate was not in a helpless condition and was able to take steps to protect himself. D violated no legal duty in renting a canoe to a man in the condition of the intestate. Baker v. Fenneman & Brown Properties, LLC (p. 77) RESTERAUNT! TB had a duty to take reasonable action to give aid to Baker after he fell and to care for him until he could be cared for by others Rule: Place of business owes duty of to take reasonable efforts to aid customer (special relationship: business invitee) who is in peril notwithstanding that injury is not due to any instrumentality of business TB had a duty as a business that invited members of the public to enter its facility to provide reasonable assistance to Baker even though TB wasnt responsible for Bakers illness. Public policy concerns A storeowner who economically benefits from the presence of the customer should assume the duty to help customers who become ill as a cost of doing business. TB believes that they would be required to hire employees who were trained to diagnose and provide medical services. However, the court believes that the duty is to exercise reasonable care. It would not be a reasonable expectation for a student to provide professional medical care.

12

Premises Liability Trespasser (no authorization, intentionally enters) a. No care b. Exceptions: i. Children (Attractive Nuissance) ii. Intentional Harm via traps, shooting iii. Continual Trespassing ~ presence/likelihood attaches duty Licensee (social guest owner knows of presence, takes property as they find it) c. Higher degree of care; express or implied authorization on property; social purposes; d. Licensor must use reasonable care to refrain from actively subjecting him to danger/warn of dangers that cannot reasonably be presumed to be known by licensee. Invitee (benefits the landowner/invitee, typically a business relationship) e. Highest degree of care f. Invitee is there for profit of owner g. Duty for all foreseen hazards (hidden or not); affirmative action to protect Three step process to determine premises liability: #1 Classify the statue of the injured party as INVITEE, LICENSEE or Trespasser
INVITEE (Business Guest mutual advantage commerce) / invitation to the general public: A

person who goes upon the premises of another in the answer to the express or implied invitation of the owner orr occupant for their mutual advantage o Duty: owes no duty but to keep premises reasonably safe and warn of hidden danger o Invitee [INSPECT/REPAIR] one who either (1) enters land by express or implied invitation to conduct business with the owner; or (2) enters for purposes for which the land is held open to the public status implies that the entrant expects that the premises have been made safe for him Lose status: go beyond bounds of invitation
LICENSEE (social guest): who enters upon the property of another for his own convenience,

pleasure or benefit pursuant to the license or implies permission of the owner o Duty: refrain from willfully or wantonly injury, warn them about hidden dangers, there is no duty to inspect it. o [WARN] has permission to enter, but doesnt have a business purpose no expectation that the premises have been made safe for him [e.g social guest]
TRESPASSER (Uninvited): who enters upon anothers premises without license, invitation or

other right

Duty: refrain from willfully or wantonly injury, no duty to keep premises in safe condition [NOTHING] no permission/privilege to enter

#2 Determine the duty owed based upon classification #3 Look to see if the duty was breached Rule: Once P entered an area where there was no mutual benefit to D, his status as invitee changed to trespasser and D only owes duty not to intentionally harm. R: An invitee who goes beyond the bounds of his invitation loses the status of invitee and the rights which accompany that state. (SEE SHARP)

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Trespasser

Definition Person who enters or remains upon land in possession of another without a privilege to do so, even if there is no intention to do wrong or mistake

Duty Adult: not to intentionally gurt them / set up trap Child: exercise reasonable care if there is reason to forsee if children might enter Reasonable Care

Exception to Duty

Invitee Business Guest / Customer

Licensee Social Guest

Invited onto the property of anoher, expressly or impliedly to conduct business for their mutual benefit or for the benefit of the occupier, or to enegaine in activity which the occupier permits to be conducted upon property Peron who is preivileged to enter or remina upon the land by viture of the possessors consent, wheter given by invitation or permission

Less than reasonable care: duty to warn of dangerous conditions which the owners knows of but which he cannot reasonably assume that the licensee knows of or would observe includes traps

Does not have to inspect property for traps, only things owner is aware of.

Non-Entrant

Exception to general rule of no duty Attractive Nuisance: owner must have reason to foresee that children might enter the property and be endangered by the condition.
knew or should have known of the unreasonably dangerous, artificial condition The risk that a child would be hurt was reasonably foreseeable knew children hung around the property Children are so young that they dont appreciate the risk of danger The risk of injury outweighs the cost of making the condition safe

Artificial conditions
Only triggered if owner knows or should have known that Trespasser would intrude upon a limited portion of the property. - Ex: pathway by loading dock D carelessly permitted or maintained hazardous conditions on their property (owning and possessing can be viewed as an active form of conduct when liability is attached.

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Leffler v. Sharp (p. 88) Person that goes onto roof and falls through cannot recover because they are a trespasser/licensee. No duty because steps were made to prevent roof access, at the time of the accident he was not an invitee anymore because there was no mutual benefit, and there was nothing enticing about the roof.

Arguments P: Mistake of law: insists that he as a invitee or at least an implied licensee and in the alternative if he was a trespasser was owed a duty form willfully/wantonly injuring him. D: entrance upon the roof made him a trespasser
Pure Economic Loss Generally, no recovery for economic loss, must have: 1. Suffered physical/property damage 2. Special relationship/Contract o Accountants: reasonable care in audits so they dont mislead creditors o Attorneys: duty not to cause economic loss to non-clients (estate cases) Exceptions to the rule against recovery in negligence for pure economic loss: - Accountants must take reasonable care in conducting audits of their clients finances so as not to mislead certain creditors of the client Attorneys owe a duty not to cause pure economic loss (ie: estate attorneys); distinct from negligent misrepresentation

Policy: give less protection for pure economic loss is insurance, specifically business interruption insurance
This is what makes pure economic loss different from injury: Insurance might make the person indifferent to pure economic loss, whereas life and death is different

Aikens v. Debow (p. 97) Facts: D is truck driver caused accident to overpass, which was most convenient way to access Ps motel. Because of the accident, bridge was closed for 19 days, and P is suing D for loss of income. Rule: Absent direct bodily injury or property damage, D owes no duty to P for pure economic loss without either privity of contract or some other special relationship such that D owed duty to P and injury was foreseeable to D. No duty is owed to motel owner who loses business because of truck drivers negligence because there was no direct harm (bodily or property) and no special relationship. Ps Arg: The bridge was closed for 19 days to make repairs. P lost revenues due to the closure of the Route 901 overpass. P seeks recovery of $9,000 in lost income. P owns an Econo-lodge. Ds Arg: Restatement of Torts: Interference with the ability to contract with third persons is too remote to permit recovery. In Phillip Morris Inc, the court refused to permit recovery of the profits

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Tarasoff v. The Regents of the U of California (p.119) nonfeasance failure to warn Psychologist failed to warn Tarasoff that her client failed to kill her Difficulty of causation in this case is common Rule: therapists owed duty of reasonable care if patient shows intent to injury someone. Once a therapist knows or should have known of the harm, he bares the duty to exercise reasonable care to protect. Special relationship also creates this duty. o Police have sovereign immunity in this case for failure to protect Tarasoff Discharge duty steps: o (1) warn victim; (2) notify police; (3) other reasonable steps necessary under circumstances Take Away: Both Rowland and Tarasoff enormously increase liability. Cheapest Cost Avoider o Tarasoff: the whole situation could have been fixed if he just warned her

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Breach Question of fact for the jury o Breach = failure to use ordinary care o Ordinary care = what reasonably careful person would do o Was D negligent in doing something or failing to do something? Reasonable Person Standard did D act with the degree of care that they were dutybound to exercise? No, then breach.

Duty & Breach Everyone is held to same standard of reasonable person Children are held to reasonable child standard There are different standards of care for professionals and ordinary persons Myers v. Heritage Enters., Inc. (p. 138) Not medical professional = reasonable person In suit against nursing home for negligence for operation of a hoyer lift, the proper standard is that of ordinary care that the reasonably careful person would exercise Rule: In cases where defendants are not medical professionals, it would be an error of law to judge them by medical professional standard. Content of the duty should be how a reasonably careful person would have acted under the circumstances. Martins v. Evans (p. 142) ordinary care: reasonable under circumstances? Case where truck driver backed into someone at rest stop. Rule: Where there are factual discrepancies, breach is an element of negligence determined by the jury. As such, in cases where the central factors are factual and credibility discrepancies and question regarding what constitutes ordinary care, the court must show deference to the verdict of the jury. Exceptions to Ordinary Care Pingaro v. Rossi (p. 147) strict liability limitation When meter reading was bit by dog, reasonableness is irrelevant because there was a Dog Bite Statute that imposed strict liability on a dog owner Look for and then list out the STATUTORY ELEMENTS (1) Rossi was the owner of the dog (2) the dog bit P and the bite occurred while (3) P was lawfully on Ds property. Rossi knew of the dogs dangerous propensities Breach: D failed to comply with legal obligation of controlling dog Jones v. Port Authority of Allegheny County (p. 148) common carriers highest Common carriers owe highest duty of care to their passengers ~ Bus injury

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Extraordinary Circumstances Campbell v. Kovich (p. 150) Ordinary care was exercised with quick inspection before mowing the lawn, there is no reason he should have exercised extraordinary care

Rule: A person operating a lawn mower only has duty to exercise ordinary care. - Ashton wasnt required to exercise extraordinary care. He exercised ordinary care but an accident of unclear causation occurred.
Adams v. Bullock (p. 151) no foreseeability of an extraordinary event When child was electrocuted by wire system, there was no breach of duty because D exercised reasonable care and couldnt foresee the extraordinary circumstances Ps Arg: Theres a duty to adopt all reasonable precautions to minimize the resulting perils. Ds Arg: Theres no evidence that this duty was ignored. The trolley wire was placed so that no one on the bridge or bending over the parapet could reach it. No vigilance could have predicted the point upon the route where such an accident would occur. Ordinary caution didnt involve forethought of this extraordinary peril.

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Defining the Reasonable Person What is the baseline standard of care? The baseline is constitute by the activity of the sub-group (professional group) - General Rule Professional Duty: If there is a specialized activity, that only a special sub-population performs generally AND we require expert testimony as what the subpopulation counts as the standard we are in a (small) zone of Lay judgment: (large zone) not depending on the sub-population for the standard of care Exceptions to reasonable person standard: children, blind people, elderly, people in emergencies or suffer sudden physical/mental incapacity (will not defeat a finding of breach if its onset was foreseeable to the actor, i.e., epileptic driver who knew he could lose consciousness without notice) WHEREAS mentally ill are judged by reasonable person standard (see Wagner v. State)

Minors over seven who engage in adult activities, such as driving cars or snowmobiles, are held to the reasonable standard of competent adults

Comparison between the general operation vs. that part of the population (subsidy) that is conducting that same activity in the same circumstances. Circumstance Characteristics Age, physical handicap, emergency Intelligence, mental illness, physical dexterity

Makes the cost of the activity less expensive to a Defendant There is no insanity defense in tort law Disability compared to others with disability Stupidity and mental incompetence is not considered

Bell Curve almost never shifts to the left (D lawyer wants it to) Exceptions: Doctors, Children, Emergency Circumstances
MOVE TO THE LEFT Children: Appelhans v. McFall Tender Years Doctrine: Illinois children under 7 are in the middle of the bell curve as a matter of law because they cannot be compared to reasonable adults Subjective Child: Restatement 238A, Majority - map them on a bell curve with other children of like age, intelligence and experience in similar circumstances (reasonable child standard) Exception: If minors over 7 engage in adult activities, such as driving cars or snowmobiles, they are held to the reasonable care for competent adults. Physical Disability: If youre having a heart attack while REASONABLE PERSON Stupidity: Vaughan v. Menlove The standard which D is to be judged by is that of the reasonable person. This does not take into account certain individual qualities, such as the particular defendants relative clumsiness or capacity for prudence. MOVE TO THE RIGHT Doctors Johnson v. Riverdale Anesthesia Associates: the applicable standard of care is the degree of care and skill required of a physician which under similar conditions and like circumstances is employed by the medical profession generally - we based standard of care on CUSTOM

Mental retardation: Burch v. American Family Mut. Ins.

Common Carriers: Jones v. Port Authority of

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youre driving

Severely retarded girl held to reasonable person standard

Allegheny County D in this case is a common carrier, who provides a service to fare-paying customers. As such, they are not judged by the standard of reasonable care, but rather, a much stricter standard, extraordinary care. 75% Strict Liability Pingaro v. Rossi Perfect duty of care. Intent is irrelevant

Emergency: if you act, even in a small emergency, this might shift the curve, UNLESS you caused the emergency Goodrich v. Blair: A driver who, without an forewarning, has a heart attack that causes injury to another

Insanity: Anicet v. Gant insanity does not defeat attribution of intent in suit for torts such as battery (unless so incapacitated) or negligence Cultural/Gender differences Ha v. Alaska Ha took death threat very seriously because of his culture, court said jury had to look at objective standards for imminent harm City Caliri v. NH DOT The test of due care is what reasonable prudence would require under similar circumstances. Predictable physical conditions Epilepsy: Storjohn v. Fay Knew or should have known that he was subject to losing consciousness Alzheimers: White v. Muniz even though no intent can be found, still liable for negligence Intoxication

B <PL The TJ Hooper If burden is so little, court will sometimes find liability even if its beyond reasonable care

Creasy v. Rusk: Policy considerations for reasonable person standard for mental retardness: 1. Desirability of allocating losses between two innocent parties to the one who caused or occasioned the loss 2. Providing an incentive to family members and other guardians of people with disabilities to control the behavior of these persons 3. Removing inducements for alleged tortfeasors to fake a disability to escape liability 4. Avoiding administrative problems that are created by requiring courts to identify and assess the significance of the actors disability 5. Forcing persons to with disabilities to pay for the damage they do if they are to live active lives Vaughan v. Menlove (p. 158) objective standard for reasonable person Hayricks burst into flames duty not to create foreseeable risk Rule: reasonableness is an objective standard; he needed to proceed with reasonable caution as a prudent man would have under the circumstances o No separate standard for idiots! Rule: The standard that D should be judged by is that of the reasonable person, which does not take into account subjective qualities such as Ds clumsiness or incapacity for prudence. Even if D is of lesser intelligence than the reasonable person, even if his best efforts fall below

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reasonable care, he/she should not be held to a different standard; person must behave like another of ordinary prudence under similar circumstances. Reasonable Child Standard, Tender Years Doctrine Appelhans v. McFall (p. 160) 5 year old hit 66 year old riding a bike should parents know risk? Rule: reasonable care for a child is held to a lower standard o Tender Years Doctrine: under 7 = no negligence Restatement 283: if the actor is a child, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable person of like age, intelligence and experience under like circumstances Parental Supervision (negligent instrumentation as well gun) Liable for child torts:

(1) parents were aware of specific instances of prior conduct sufficient to put them on notice that the act complained of was likely to occur and (
2) parents had the opportunity to control the child Rule: Under the tender years doctrine, children under the age of seven cannot be held liable for negligence because their conduct will always meet the standard of reasonable care. - TYD basically gives immunity to children and is an exception to reasonable person standard, making it okay for them to engage in activity, while injured person bears the costs. Massachusetts/Restatement: children should be compared to children of like age, intelligence, and experience in similar circumstances (reasonable child standard)

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Standard for Industry and Professional Custom Custom must be common or widespread to qualify Outside of professional negligence, custom does not equate reasonableness Standard of care for doctors incorporates the notion of customary care into the very definition of reasonableness: a dr. is required to exercise the same level of care as is considered standard by members of the profession. Proof of compliance with professional custom does establish reasonable care. What is the baseline standard of care? The baseline is constitute by the activity of the sub-group (professional group) - General Rule Professional Duty: If there is a specialized activity, that only a special sub-population performs generally AND we require expert testimony as what the subpopulation counts as the standard we are in a (small) zone of - Lay judgment: (large zone) not depending on the sub-population for the standard of care Example: Products liability vs. MedMalPro Products Liability Lost Hand Injury Testifying not how everyone Expert Witness (technically) does it, the argument.

Medical Malpractice Lost Hand Identify standard of conduct Testifying to what doctors do, sets the test for what is reasonable. Even if in the opinion of the expert what Drs do is not the best way to do it Establish measure of reasonable care, allow the object of the duty to define the content of that duty

NOTE Locality rule: D conduct departs from custom in that locality; all about shifting curve to the left; abolished in most courts today Question for professional malpractice is different than reasonable practice what is common (making the move toward prudent patient and away from custom)

The T.J. Hooper (p. 171) custom is NOT the measure of reasonable care Outside of professional negligence, custom does not equate reasonableness - Courts will rely more on custom when the situation is more complex (when they think the jury wouldnt really understand) Two tugboats entered a storm and lost barges NO RADIOS Rule: doesnt matter that most tugboats didnt have radios, an intelligent owner would have installed the cheap radios and likely prevented the accident

o Adherence to custom doesnt necessarily establish reasonable care

o o Reasonable prudence is common prudence There are precautions so imperative that even their universal disregard will not excuse their omission

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Profession: Medical, Attorney, and Accounting: standard of practice Johnson v. Riverdale Anesthesia Assocs., P.C. (p. 173) reasonable physician standard Rule: for breach, deviation from standard of care which under similar conditions would be followed by other doctors generally, not by one in particular P Arg: D failed to preoxygenate (patient is given a measure of pure oxygen, providing her with reserve to draw from if the supply is interrupted) his wife. Ds Arg: Its decision not to preoxygenate Mrs. Johnson was consistent with the applicable standard of care, no malpractice occurred Largey v. Rothman (p. 177) prudent patient standard informed consent Note: This switches the emphasis from what the medical community thinks a doctor should tell his patient to what information a reasonable person would want to know before making a decision. Is there breach when doctor removes something during surgery they did disclose to patient beforehand? Rule: prudent patient standard doctor must tell patient everything that a reasonable patient would need to know to make an informed decision(doesnt apply to unconscious emergency) - replaces the standard of informed consent (professional standard), by which D exercises reasonable care by telling P what a reasonable medical practitioner of like training would have told P under the same or similar circumstances, with the prudent patient/materiality of risk standard. CAUSATION: Prudent patient standard: P must establish CAUSATION: that the prudent person in the patients position would have decided differently if adequately informed of all perils bearing significance. - A risk is deemed material when a reasonable patient would likely to attach significance to the risk in deciding whether to forego the procedure or submit to it.) Exception to informed consent: When necessary to operate on unconscious patient in need of immediate surgery Doctors fear that a particular patient will severely overestimate the risks disclosed and thus make an irrational decision not to opt for the procedure Helling v. Carey (p. 186) Hooper Test applied to Med. Mal. OUTLIER Pressure test was so simple that not to employ it always seems unreasonable Helling is an OUTLIER; in medical malpractice, custom usually does define the standard of care. P was not given pressure test for glaucoma because she was under the age of 40 and sued ophthalmologist for malpractice. Experts said that it was custom not to give test, but jury decided D was negligent because of low cost of test. Washington Supreme Court upheld decision but case was later reversed by legislature.

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Hand Test: Cost- Benefit Analysis Comment on its non-use on jurys *If B > PL no liability *If B < PL liability HAND TEST (B < PL): defining reasonable care investment in safety Applied to determine if utility weighs/determines if conduct was negligent Three Elements: o B= burden of preventing an injury (investing in safety social welfare) o P= probability of injury (chance negligent act happens) o L= injury/loss (damages) If B < PL = liability If B > PL = no liability Works the best in pure economic loss cases Doesnt work well in personal injury cases (numbers harder to quantify) Hand Test Question: Of any activity whether or not the marginal cost of safety (the cost of improving safety from one state to another) is less than the marginal decrease in PL. Tort Question: How do we figure out reasonable care? - Unreasonableness is determined: by the fact that the cost of the bargee is small enough when compared to the chance that the boat would break away, multiplied by the damage done if it did, that they should have ensured that the bargee was there. Unreasonable conduct is merely the failure to take precautions that would generate benefits in avoiding accidents than the precautions would cost

Purpose of hand test: give content to the standard of reasonable care where we do not allow learned profesion United States v. Carroll Towing Co. (p. 189) B < PL Analysis (cost-benefit) Was it unreasonable not to have a bargee on board of barges? Rule: Hand Test: there is duty of care to protect when the expected cost (P) times the liability of injury (L) is greater than the cost of prevention. o Hand-Test is not a winning formula, but a guide at trial
The court holds that it is fair to hold the barge partially responsible for the sinking damages for not having a bargee on board during working hours (unless there is some reasonable excuse for his absence). The January days were short, there was full tide war activity, barges were being constantly drilled in and out. It was not beyond reasonable expectation that, with the business, the work might not be done with adequate care

Rhode Island Hosp. Trust Natl Bank v. Zapata Corp. (p. 194) cheapest cost avoider Zapata employee stole checks and forged them, bank didnt discover immediately Rule: Bank used reasonable care because even a revamped system of checking for forgeries would not have substantially reduced the probability of forged checks getting through o NO CHANGE IN PL from before

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Hand Test Pros Social welfare standard Posner Cost/Benefit We want to encourage companies and people to make cost-effective safety decisions to protect against serious injuries incentive for protection Its a decent way to inform the jury instruction the judges/counsel use Hand analyses to fill the record with hand-related facts so that a hand-related jury instruction can be given we want something that tracks the reasonable person standard that we want our jury to represent Cons High information costs for BPL Hard to measure BPL Incommensurable incomparable in terms of common metric how do you assign a value to a lost limb leads to inaccuracies and guesses; how do we assess the burden that precautions for a bad driver should have to take? We dont have stats on probability of every possible injury. Fails to meet social welfare standards in practice. How do we compare societys needs to individual needs. Calculation often brings about the wrong result Must interpret large amounts of data Can be difficult for jury to apply formula The Hand test does not reward those who go beyond the point of reasonable care, so it essentially encourages people to do the bare minimum required The plaintiff will have to pay for L if B is too high for defendant; P shouldnt have to pay just because it is net positive for society

Part I lets actors know weather or not any of the accidents they cause within a certain class of activity will be ones they have to pay - Attempts to guide conduct by telling actors how much they should invest now, by promising them if they meet a certain standard of care they can be guaranteed an immunity of liability in the future o Want to incentives to invest in safety o Strong correlation between safety and less accidents o Note: Generally speaking the more money you spend on safety the less accidents you are going to have However, there is a certain point at which that spending more has no discernable effect on infection rates Part II - Maximize social welfare, utilitarianism o you want the optimal level in investment in safety coexisting with the same level of accidents so that it maximizes welfare. o Has to be extremely sophisticated and count welfare in all the way it exists Alternative Negligence Measurements: Reasonable-person test Regardless of costs, must take reasonable care Reduces information costs but still high because need to know P and L Bargee would like win, PL falls below threshold of dangerousness since he left barge safely moored Community Expectations Approach:

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Social understandings and norms are the best guide to societys interests Not governed by law but by jury decisions evidence, jury knowledge/experiences Hardly any information costs, we use this often Unclear how case would come out need more information about norms

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Res Ipsa Loquitur (thing speaks for itself) All res ipsa does is permit Ps case to survive where he otherwise would not be able to satisfy the burden of production

3 Elements of RIL prima facie case:

must prove that: There is no direct evidence of how behaved in connection with the event that caused the injury; The event is of a kind that would not normally occur in the absence of negligence; was in exclusive control of the instrumentality causing injury; and didnt voluntarily contribute to the event that caused his injury

Permits the jury to infer negligence from the circumstances of the occurrence. Jury is allowed but not compelled to draw the permissible inference. Where there are conflicting inferences, choice of inference (After all 3 conditions are met) When the Plaintiff can only provide that (1) D acted in some undetermined manner toward P and that (2) during or after the interaction, P suffered an injury, once successfully invoked, plaintiff is relieved of the burden of producing evidence of defendants unreasonable conduct.
Plaintiffs are not obligated to eliminate every alternative explanation for the event, just PROBABLY - Defendants merely raised alternative inferences to be evaluated by the jury in determining liability

Byrne v. Boadle (p. 205) accident in itself proves negligence Hit by falling flour; Ds duty to handle flour reasonably to prevent foreseeable injury to people on the street Rule: Even though there is no evidence that Ds conduct caused Ps injury, the nature of the accident is such that someone must have been negligent for the accident to occur. Without negligence, the barrel would not have fallen and injured P. If the facts point to no negligence and there are any facts inconsistent with negligence, duty is on D to show them. Kambat v. St. Francis Hosp. (p. 205) need not eliminate other causes for res ipsa When pad was found inside patients abdomen, res ipsa does not have to eliminate all other possibilities of other causes inference of negligence can occur when merely the happening of an event and Ds relation to it are obvious. 1)pads dont just end up in abdomens, 2) the pads were only available in hospitals, 3) P was passed out so no way they got any pads.

Arguments for Medical Cases

*res ipsa loquiter usually cant be invoked with complicated procedures because they often go badly without careless on anyones part (i.e., infection, etc.) NOTE: medical malpractice cases are more difficult because the knowledge of jurors may be inadequate to support the inference (argument is that if it requires expert testimony to explain, it shouldnt be res ipsa loquiter because obviously the thing doesnt speak for itself).

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Rule: Although in a typical res ipsa loquiter case, the jury can reasonably draw upon past experience, However, this case involved a factually simple medical malpractice case that does not require expertise. It is obvious that a pad left in the body after surgery does not normally occur without someones negligence (despite Ds argument that P swallowed it). P: D was negligent in leaving the laparotomy pad inside Ps abdomen. They showed evidence that this was the same type and size supplied to the hospital and commonly used in hysterectomies. They were only provided to hospitals with operation rooms, where patients would not have access to them. D: introduced evidence that standard procedures were followed during the operation and that a number of sponges, medical instruments and laparotomy pads used and removed were counted several times, carefully and accurately. They alleged that P swallowed the pad and they were accessible. P suffered from chronic depression and overuse of sleeping pills could suppress the gag reflex and permit her to swallow the pad

Ybarra v. Spangard -- Benefit of res ipsa with multiple parties P suffered paralysis in his shoulder during surgery, which could have been caused by several nurses or doctors. Rule: P was allowed to use res ipsa to establish carelessness of each because P wouldnt be able to prove what happened while he was unconscious and Ds each stood to benefit by remaining silent.

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Causation Causation Analysis Step 1 -- Actual Cause: Did the in fact cause the s injury? - Did defendants breach of duty more likely than not functioned as a cause of the plaintiffs injury? But for the defendants actions, the plaintif injury would not have occurred?

o But-for test single cause or one of several concurrent causes, Must show that there was more than 50% chance conduct was cause
o o Substantial factor test multiple Sufficient Causes (used when chance of survival is less than 50%) Alternate Causation

Step 2 Proximate Case: Is the injury is within the scope of the risk created by the conduct for which the actor is found to be negligent,? there is proximate cause? Conduct will be deemed to be a proximate cause of harm if the harm was a foreseeable result of the conduct, and if the harm was not brought about by an extraordinary or unforeseeable sequence of events. The question is not if the specific injury would result, but rather that a person of ordinary caution and prudence would have foreseen that some injury would likely result wherefrom the negligent action Policy issue involving the extent to which the will be liable for unforeseeable or unusual consequences of his conduct The careless aspect of Ds conduct played a part in bringing about Ps injury A partys act is the proximate cause of an injury if it is the natural and probable consequence of the act and should have been reasonably foreseen and anticipated in light of the circumstances. [CLARK} Risk Rule refinement of foreseeable consequences rule Was s injury within the scope of the risk crated by s negligence? Was the harm the result of the realization of one of the risks that created duty? Look at the hazard that actually occurred, and ask whether this is the same kind of hazard that would make the actual conduct negligent. Intervening Cause cause: Coming into active operation; In producing the result; After s negligence; From a source independent of s negligence Foreseeable intervening cause those subsequent forces that: - One should reasonably anticipate; or - Those that should reasonably anticipate under the particular circumstance o the negligence of other drivers on the road is probably always foreseeable o rescue is a foreseeable response to an accident or injury the initial tortfeasor will still be on the hook when either the injured person is hurt or worse, or the rescuer is hurt, even if the rescuer behaves negligently Cardozo: danger invites rescue

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Superseding force force coming into being after the s negligent act, which cancels the s liability by breaking the chain of causation from the s act to the s injury. - The unforseeability of the result of the subsequent force relieves the of liability.

o Responsibility shifting X is aware of the risk caused by , but consciously disregards that risk, then Xs going forward generally supersedes, and shifts the risk away from to X

Proximate Cause
Direct Causation Holds D liable, no matter how unreasonable, so long as they flowed from their act ***THIS HAS BEEN ABANDONED*** Polemis (p. 274) direct causation o Knocked plank that caused spark and blew up ship o Rule: direct causation, careless act directly caused it, foreseeability irrelevant II. Reasonable Foreseeability Foreseeable injury D is liable, even if injury is more serious than anticipated
Wagon Mound (no. 1) (p. 275) : reasonably foreseeable to the D at the time they acted carelessly

Ship oil spill, spark ignited oil and dock/ship burn [Overruled Polemis] Rule: test for proximate cause should be whether the type of harm suffered by the P was reasonably foreseeable to the D at the time they acted carelessly Wagon Mound (no. 2) (p. 275) o Ruled that the mucking of dock was proximate cause of destroyed ship Union Pump Co. v. Allbritton (p. 269) causes of injury v. pre-condition for injury Allbritton walked over pipe instead of around it, slipped and injured self Breach element: o But-for fire, she wouldnt have slipped and fallen o Proximate cause: no! because it was not a substantial factor Rule: circumstances of injury too remote; injury was not a foreseeable risk o All that was done was furnishing conditions for accident Rule: The fire was too remote in time to be connected with Ps fall. This type of injury wasnt within the risk of the fire. Legal cause is not established if Ds conduct does no more than furnish the condition that makes Ps injury possible. Even if the fire was a but-for cause of injury, the forces generated by the fire had come to rest, and the injury was unforeseeably connected with Ds conduct because walking across the pipe was not necessary under the circumstances. Jolley v. Sutton London Borough Council (p. 277) RISK RULE When it is reasonably foreseeable that children will want to explore (rotting boat), then you cannot escape liability just because you did not foresee the outcome. Wagon mound not meant to say type of harm AND extent of harm had to be foreseeable Characterizing injury that occurred / consequence of the Breach of Duty Trial court perception of general risk: Appeals Court perception of Only Foreseeable Children would meddle with the boat at the risk Risk : Children would be drawn to the boat, play on of some physical injury it and hurt themselves by way of rotten planking - THIS IS FORSEEABLE X THIS IS HIGHLY UNFORSEABLE (The more specific the better)

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General Principle: Reasonable foreseeabilty Determination of liability (2 stage test) o The existence of a duty depends on whether the injury is foreseeable o Once the duty is established, D is liable for any injury directly caused by an act in breach of that duty whether the injury was reasonably foreseeable Unless injury is reasonably foreseeable, it is outside the scope of the duty or too remote. Ventricelli v. Kinney Sys. Rent A Car, Inc. (p. 284) Getting hit from behind outside car not within scope of risks of a defective trunk Rule: While it may have been foreseeable that P would continue to slam the trunk lid to close it, the manner in which P was injured (a collision between, essentially, two safely parked vehicles) was not foreseeable.

Time Expiration of Risk did the risk subside?

Marshall v. Nugent (p. 287) 3rd party strikes signaling driver after accident, proximate cause to first accident - P gets out to direct traffic and non-negligent 3rd party hits P. - Consequences of initial negligence were still in play. However, if P was injured 5 miles down the road, Ds negligence would not be proximate cause (expiration of risk). Superseding Cause Second cause can function as relieving the perpetrator of a prior wrongdoing of responsibility, even though the prior wrongdoing was a but-for cause of the victims injury - Instances in which the path from Ds careless acts to Ps injuries is sufficiently odd or indirect as to warrant the conclusion that, notwithstanding the actual causal connection between the act and the injury, the injury cannot fairly be deemed something that D did or inflicted on P.

Test: The test is not to be found in the number of intervening consequences, but in their character and in the natural connection between the wrong down, the injurious consequences, and if such a result is attributable to the original negligence, as a result which might be reasonably foreseen as probably, the liability continues The test is in the character of the intervening act [CLARK] 1) Negligence to the proximate cause of an injury must be such that a person of ordinary caution and prudence would have foreseen that some injury would likely result therefrom, not that the specific injury that would result. The question whether negligence is the proximate cause of an injury is ordinarily one of fact for the jury (295) Attempting to dispose of it effectively vs. mischief Plaintiff Argument: It was a concurring cause, it will not relieve the remote wrongdoer of the duty. Pollard v. Oklahoma City Ry. Co. (p. 288) intervening party sufficient RR has no liability for injury because their role was too remote. His parents told him not to mess with the powder they were proximate cause.

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Rule: If an independent force or agency intervenes, this will break the causal connection, unless under all the circumstances of the case this intervention itself is a concurrent cause, or is not the primary or proximate cause of injury and couldnt have been anticipated or foreseen. Holding: The Companys original negligence in leaving the powder cans with small quantities of loose powder was not the proximate cause of injury inflicted in this case. Negligence of the boy and his parents show that independent, intervening, efficient causes made the original negligence of the company so remote. Rule: Although D breached duty by not taking care of cans of powder where it knew children would played, negligence of D was not proximate cause of injury because of P and friends negligence and parents who did nothing to stop activity. Negligence of the company is too remote to hold it liable. The chain of events is so broken that they became independent and cant be said to be the natural and probable consequences of the original or primary negligence. Policy: cant look back beyond the last efficient cause, especially when intelligent and responsible human beings have intervened Clark v. E. I. Du Pont de Nemours Powder Co. (p. 292) intervening party insufficient Does it change the nature of the thing? Powder Company is liable because they were the proximate cause of the injury. No superseding cause because although the powder was left in the hands of an intervening party, they were unskilled in disposing of it and thus it was still foreseeable that agents failure to act reasonably resulted in Clarks injuries Ds Arg: There was an independent and efficient intervening agency growing out of the act of the young man McDowell, who, to save himself and his fellow workmen from danger, carried the dynamite first to his home and then hid it in an abandoned graveyard. Ps Arg: The original cause was the proximate cause and where the intermediate incidents didnt avoid the consequences arising from the acts of the original wrongdoer. Holding: The act of a third person, intervening and contributing a condition necessary to the injurious effect of the original negligence will not excuse the first wrongdoer, if such act ought to have been foreseen. o No new power of doing mischief was communicated to the solidified glycerine by McDowell. Power of doing mischief was inherent in the glycerine all the time. McDowell had no skill or experience in handling the article. He did the best he could to prevent damage based on Van Grays negligence. The original negligence still remains a direct cause of the injury. The test is to be found in the probable injurious consequences which were to be anticipated, not in the number of subsequent events and agencies which might arise.

Scott v. Shepherd -- Squib Case Burning squib was thrown by the original wrongdoer. A little hot potato.. puts out an eye. Rule: The person who turns him loose is answerable in trespass for whatever mischief he may do The intermediate acts will not purge the original tort But who is responsbale for the first wrong will be answerable for all the consequences answer consequences mediate or immediate. D gave the mischievous faculty to the squib, which remained until it exploded. -

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Palsgraf v. Long Island Railroad Co. (p. 299) breach must be of a duty to P, not to a 3rd party P standing on RR platform, guard tired to help man with package onto the train, his package fell and exploded, causing scales at other end to fall and hit P - Ds breach of a duty to 3rd party was not foreseeable harm to P; Must have been a breach of a duty to P, the non-breach of which would have averted the injury; - eye of ordinary vigilance Cardozo: There is no duty to an unforeseeable P. A P can only maintain a claim if D breached a duty to them. P must demonstrate a wrong to him or her, not a wrong to the world at large. Thus, there is no question of causation here: P was not owed a duty: the breach of duty, which caused Ps injury, was a breach of duty to the men on the train. A person cannot recover for injuries suffered from negligence to some one else. There was no breach of the duty owed to her A PASSANGER is protected against intentional invasion of her bodily security. She might claim to be protected against unintentional invasion by conduct involving in the those of reasonable men and unreasonable hazard that such invasion would ensue. (300) This was not a foreseeable consequence: The orbit of the danger as disclosed to the eye of reasonable vigilance would be the orbit of the duty (301) Andrews: This is too narrow a conception of duty. The duty was to operate a safe railroad, and that was breached when the men were pushed onto the train. As such, the question of proximate cause should go to the jury. Petitions of the Kinsman Transit Co. (p. 314) responsible for full extent of breach Ship broke lose from deadman, colliding with other ships, bridge, and flooded surrounding property (from block in the river) - Where damages result from the same physical forces whose existence required greater care than was used and was expected, unforeseeability of the exact developments and the extent of loss does not limit liability. o Risk Rule: just because harms were unforeseeable, doesnt mean its beyond rule Facts: Ds ship was improperly anchored to deadman on dock, which was negligently constructed. Ds ship hit another ship on river, which eventually collided with bridge that city failed to raise in time, which caused a dam and flooding and property damage to P. - All D were held to be joint and severally liable.

Rule: Here, the property damage downstream is considered unforeseeable, but that does not necessarily mean that it is outside the realm of proximate cause. - By the risk rule, the property damage nearby and the property damage downstream are both recoverable. Although one may be more likely than another, there is no reason to preclude recovery for one and not the other. As long as the damage is anchored to the same type of harm, foreseeabilty is irrelevant. - A ship insecurely moored in a fast flowing river is a known danger not only to the ship but to the owners of all shps and structures down river. The shup owner owed a duty of care to all with ting the teach of the ships known destructive power. - the danger of the fall of the bridge of the flood of the city was not unforeseeable. Moore Dissenting: No bridge builder or bridge operator would envision a bridge as a dam potententional. The link is too tenuous for the bridge, maybe anyone could see

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it, but not a prudent reasonable man. Consequence/ fortuitous circumstances of the vessels so arranging themselves as to create a dam is much too tenuous. Natural Events If a natural disaster is foreseeable, its not a superseding cause. Regular natural disasters are superseding causes (volcano erupting)
Alarm company is liable for negligently setting up an alarm system that doesnt go off when a burglar breaks in. Citys Failure to Raise the Bridge Arg: Although all the vessels moored in the harbor were known to be without power and incapable of controlled movement save with the aid of the tugs. Since the breaking loose of the ship was not anticipated it would be consistent with the prudence for the City to let the crews go home. There was no need for them to be there when it wasnt required. However, this still violated statutory and regulatory law even though this doesnt fall within negligence The Time Relation of the Citys Failure to the Prior Faults of the Shiras and the Continental: Kinsman and Continental ARG: believe that the Citys failure insulates them from liability for damages to others resulting from the collision of the bridge. Court rejects the last wrongful act cause: an actor whose negligence has set a dangerous force in motion isnt saved from liability for harm it caused to innocent people because another has negligently failed to take action that would have avoided this Rule: Although these two parties may argue that the superseding cause of the citys failure to raise the bridge in time cuts off their liability, they were but-for causes of the accident and should be liable for all the consequences that extend from their negligent acts, regardless of whether those consequences came about in a foreseeable manner. Basically, Friendly argues that the consequences were of the same general sort, the same forces Because property damage was foreseeable, the less foreseeable flood damage caused by accident is recoverable because it flowed directly from same negligence. STRETCH OF THE RISK RULE!! o Holding: One who failed to use the care required to protect others in light of expectable forces should not be exonerated when the risks that rendered his conduct negligent produced other and more serious consequences to people than were fairly foreseeable.

Preponderance Standard: More likely than not If not for (but-for) Ds conduct, P would not (or more likely than not) have been injured. o D does something carelessly but P probably (by a preponderance) would have been screwed anyway NO LIABILITY Skinner v. Square D Co. (p. 221) show causal relationship between breach and injury Since it was only a possibility (less than 50%) that Skinner would have survived but for the carelessly manufactured switch, the court held that he failed to prove his case as a matter of law. No preponderance of evidence for but-for cause. When one theory is just as good as another, you have NOT shown but-for cause. Rule: Ps circumstantial evidence did not afford a reliable basis from which reasonable minds could infer that more probably than not, but for the defect in Ds switch, P would not have been electrocuted. In order to establish causation, P must demonstrate that it is MORE LIKELY THAN NOT that Ds carelessness caused his injury. Here, in a case where P presented only circumstantial evidence, theres only a POSSIBILITY of Ds carelessness being a cause. Equally likely is Ps mishandling of the device as cause of death.

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Loss of Chance Doctrine: If loss of a substantial opportunity of avoiding physical harm. P must show some probability that the treatment would be successful, that probability need not be greater than 50%. Facts: 19 year old having baby; had amniotic fluid embolism; she would have had about a 37.5% chance of surviving had the Dr. given her an intravenous line. - Damages is the percentage of loss of chance of survival; different than preponderance standard where if you prove over 50% chance, you can recover 100% damages. - Its not that we would never know whether fluids would save her life; were saying well never know because they werent brought in; due to breach of duty, we dont know whether there would be chance of survival. Cannot show that the loss of chance was more likely than not.
- Special rule of cause in-fact picks up a damges rule. Falcon v. Memorial Hospital (p. 231) loss of chance of survival Doctor doesnt give a woman giving birth an IV, which would have increased her chances of survival by 37.5% Rule: loss of chance of surival is a loss of a substantial opportunity to avoid physical harm

o P must show probability of success, but it doesnt have to be > 50%

Rule: The loss of a 37.5% opportunity of living constitutes a loss of a substantial opportunity of avoiding physical harm. Injury, other than physical harm, can also be the loss of opportunity of avoiding physical harm. - Even though it is logically impossible for D to have been a but-for cause (37.5% is not more likely than not that she would have died because of lack of intravenous line), Court does not care; D not only owes duty to P not to cause physical harm but also to delay death, no matter if the percentage of survival is less than 50%. Ds Arg: Claim would not show that it was probable, measured by more than 50%, that Falcon wouldve avoided physical harm had the procedure not been omitted. They should only be subject to liability only for acts or omissions that would have more than 50% caused physical harm to the patient. Ps Arg: D deprived her of a 37.5% opportunity of surviving the embolism. CT says that P must establish more probable than not causation. More probably than not, that the defendant reduced the opportunity of avoiding harm

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Multiple Necessary but-for Causes Multiple one actors conduct was negligent, but ultimate harm would not have resulted but for each of their careless conduct. But for the combined and concurrent negligen acts the injury to the V could not have possibly happened

Applies when the independent careless conduct of two (or more) actors each functions as a cause of the Ps injury; applies only when each of two or more careless acts functions as a but-for cause of the injury to the P

When the acts of two or more persons concur in contributing to and causing an accident, and but for each actors careless conduct causing such occurrence (the accident would not have happened), the injured person may sue the actors jointly or severally, and recover against one or all. Test: Where concurrence in causes is charged the test is: Could the accident have happened without their cooperation? (Sweet v. Perkins) o There was no way it could be said that the negligence of one or the other of the defendants was the sole or proximate cause Look for: a common intent, purpose, design on the part of the wrongdoers to do a particular wrong or injury.

Substantial Factor Test

Actual Causation > Substantial Factor Test Actors carelessness must be a substantial factor in bringing about injury, it must be non-trivial necessary condition, and if there is more than one cause each must be sufficient to bring about the injury on its own The actors negligent conduct is a legal cause of harm to another if: - His conduct is a substantial factor in bringing about the harm, and - There is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in the harm. Stop using substantial factor in multiple ways. Has been used - Multiple sufficient causes: Anderson (but for causation) NOT HELPFUL - Multiple necessary causes in which one of the causes is miniscule, should a D br brought in to have been shown to have been a necessary cause, but their contribution was tiny. o We may be a but for cause, but we are not a proximate cause, we are not a substantial factor McDonald v. Robinson (p. 239) multiple necessary causes 2 cars interlock and then hit a pedestrian; 2 but-for causes of injury Rule: Joint-Tortfeasors: independent careless conduct of two or more actors each functions as a cause of Ps injury ~ CONCURRENT NEGLIGENCE o Test: could accident have happened without their cooperation??

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Multiple Sufficient Cause If two causes concur to bring about an event and either one of them, operating alone, would have been sufficient to cause the identical result, some test of proximate causation other than but-for is needed Anderson Two fires started by D destroy property of P. Because both fires were independently sufficient to cause injury and even though neither of them were but-for causes, P can treat both Ds as if they are joint tortfeasors

Aldridge v. Goodyear Tire & Rubber Co. (p. 242) Substantial Factor Test Employees developed diseases after working at a plant that had many toxins Rule: Only 10% of bad ones came from GY, cause must be sufficient before it can be substantial and this case fails multiple sufficient cause test. Ps burden: P must have evidence that shows that a particular, identifiable chemical supplied by Goodyear was a legal cause of their injuries. If they fail to make sufficient burden of proof, then summary judgment must be entered for D. Ps experts (Dr. Lipksy) believe they have a very difficult burden to prove. D must show that there is some doubt as to the material facts. Ps claim: Each worker was exposed to these toxic substances and that such exposure caused or contributed to a certain disease contracted by the worker. Goodyear had an obligation to ensure general plant safety and claims that they are responsible, in tort, for the harm caused by toxic substances which Goodyear didnt supply as well. Ds Arg: P have failed to produce evidence in which a reasonable juror could rely to conclude that Goodyear supplied chemicals or those supplied by another entity caused their sicknesses

Alternate Causation: Burden Shifting We assume causation and make D prove that they did NOT cause harm when Applied in cases where there is a logical or practical problem with apply but-for causation - Logical: multiple sufficient causes (Anderson) o Victim can prove as a matter of PF case that breach -

Alternative to but-for causation: - Each of the possible causers of her injury must be joined as a party to her lawsuit or the person who actually caused the harm might escape liability.
o Shifts burden with respect to proving actual causation from the plaintiff and pacing it onto each defendant to disprove that his carelessness was a cause of Ps injury

Summers v. Tice (p. 259) Alternative Causation 2 Ds shot bullet where P was quail hunting hit him in the eye o there is only one sufficient cause, but dont know which D hit P

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o NOT MULTIPLE SUFFICIENT Rule: P cannot prove preponderance, so the burden shifts onto D to prove it was the other persons acct that was the sole cause of the harm

Policy: Use this only when it would be unfair for P to pay for their own injuries, like we treat Anderson, althought they are different. If either party can show that they were not the cause = relieved

Note: Technically, theyre not joint tortfeasors according to the test. There was no concert in action and no indivisible harm (harm only came from one person). But both Ds breached their duty to P by acting negligently and both should be held liable even though only one of them caused injury. This is different from Aldridge because there was only one D in that case and no way to allocate responsibility.
Concert of action - Bierczynski v. Rogers: Where P is struck by drag racers, they are held as having jointly causing the accident.

Proximate Cause and Affirmative Duties Fast Eddies v. Hall (p.324) Dram Shop Act Tavern is not responsible because there is no evidence of foreseeability of sexual assault and murder. no duty to protect from intentional criminal acts No proximate cause because the chain of events is too broken to involve bar Rule: D owes no duty to protect P from unforeseeable criminal act from third party, D owes no duty to protect because it did not undertake rescue, and violation of Dram Shop Act was not proximate cause of Ps assault and murder. *A partys act is the proximate cause of an injury if it is the natural and probable consequence of the act and should have been reasonably foreseen and anticipated in light of the circumstances. In this case, violation of statute was not proximate cause because of intervening criminal activity. Admissibility of Expert Opinion Expert must testify as to common practice. Opinions from Ps experts are too vague and conclusory to be received as admissible evidence in this case. This doesnt satisfy the requirements of Rule 702. Rule 702: a federal judge must exercise a gatekeeping responsibility to insure that admitted scientific testimony is relevant and reliable. Experts must meet standards. o Two part analysis: (1) make a reliability inquiry and determine whether the expert testimony has scientific knowledge and reliable data (2) whether the testimony is relevant Daubert test: o Whether the theory or technique used by the expert can be or has been tested o Whether the theory or technique has been subjected to peer review and publication o The known or potential rate of error of the method used o The degree of the methods or conclusions acceptance within the relevant scientific community Applying these principles, Ps expert testimony must be excluded. They dont pass the test, especially the reliability component. Holding: There is insufficient evidence of causation to create a triable issue of fact for the jury. Ps failure to satisfy the Daubert test provides an alternative ground for summary judgment

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Negligence Per Se P must still show actual and proximate causation. What is the purpose of the statute? Is it to keep the public safe?

Statutory standard that allows finding that Ds conduct was unreasonable as a matter of la. Allows P to skip burden of evidence to show breach of duty based on statute

Applies to class of people the statute sought to protect from an injury the statute sought to prevent - 2 parts to negligence per se argument: o 1) show there was a violation of statute o 2) if statute is not a safety statute, it was designed to protect certain group of persons Violation of a statutory standard of conduct relieves P of burden of proving fault, places the burden on the D to prove an excuse o o o o 1) protect class of persons which includes one whose interest is invaded 2) protect the particular interest which is invaded 3) protect that interest against kind of harm which has resulted 4) protect interest against the particular hazard from which harm results Defenses was reasonable unaware of the particular occasion for compliance; Compliance would have been more dangerous than violating the statute; or reasonably attempted to comply, or faced an emergency that prevented compliance Should the P be allowed to go forward on Per se negligence? What was the Statutory Intent Exceptions to negligence per se: 1) Incapacity 2) Lack of knowledge 3) Inability to comply 4) Emergency 5) Compliance poses greater risk than violation Note: If P cannot establish all of these, P will have to demonstrate negligence by reasonable person standard. Dalal v. City of NY (p.338) statute defines the standard of care Driver is not wearing glasses and collides vehicle at intersection Statute: one cannot operate vehicle if there is a restriction on license youre not following Rule: statute sets up a standard of care, the unexcused violation is negligence per se Rule: D is negligent per se because violation of statute that relates directly to operation of vehicle. Statute sets up standard of care and violation satisfies breach of the standard of care. Holding: The statute sets up a standard of care, the unexcused violation of which is negligence per se. Rationale: A restriction placed upon the license requiring the wearing of glasses while driving relates directly to the actual operation of the vehicle.

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Bayne v. Todd Shipyards Corp. (p.339) violation of a regulation is neg. per se P, employee of trucking co, was injured while unloading goods on Ds property Statute: adopt standards of safety to make the workplace safe for workmen (not just employees of company)

Rule: Negligence per se can result from violation of an administrative order, ordinance, or statute when directed toward the same purpose: safety.

Martin v. Kerzog (notes) 1) Statute requiring lights on cars at night, crash w/o lights. 2) Negligence per se allowed, Still need to prove causation Walton v. Potlash corp. 1) Gas released that violated OCEA standards. P was an independent contractor hired to fix the tower. Statute applied because D was closely monitoring the tower, so he was almost like an employee.

Victor v. Hedges (p.342) violation must be of statutes standard of conduct and victim must be part of intended protected class D parked car on sidewalk to show P his new CD player, 3rd party hits P Statute: prohibits parking on a sidewalk, prevent from people walking into cars and obstructing the sidewalk Rule: The statute here is not meant to protect against the accident that occurred, it is meant to protect pedestrians, so negligence per se cannot apply. Facts: D was parked on the sidewalk, showing P his new stereo. Driver down the street was playing with his radio, came on the sidewalk and injured P. She sued D on theories of negligence per se (violating the law by parking on the sidewalk) and common law negligence. Facts: D was parked on the sidewalk, showing P his new stereo. A car driving down the street came up on the sidewalk, and hit P. She sued D on theories of negligence per se (violating the law by parking on the sidewalk), and common law negligence. Ordinary Negligence: can we prove breach of duty if we can not prove Per Se Negligence? common law breach claim is laughable. 2) He had a duty not to subject her to unreasonable use or harm. Ps Allegation: Ds negligently operated and controlled these vehicles to cause a collision with P who was lawfully upon the sidewalk. He is negligent because he violated Vehicle Code section 22500, which prohibits parking on a sidewalk. Purpose of statute: prevent vehicular obstruction of pedestrian traffic and to lessen the danger of vehicle-pedestrian collision. Pedestrians that walk around a vehicle that is illegally parked might be at increased risk of injury, from unsure footing, another vehicle in the roadway or from the sudden movement of the vehicle that had been at rest. o Legislative intent appears to reflect awareness that a vehicle at rest can cause injury to a passing pedestrian. However, the pedestrian, insufficiently aware of the presence of the vehicle, walks into it, or a portion of it and is injured o Not the case here. P was looking at the CD player and she was struck another vehicle which ran into her and the Explorer

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Rule: When a law that prevents parking on the sidewalk is meant to prevent injury other than what occurred, D cannot be held liable for negligence per se. The law against parking on the sidewalk was meant to stop vehicular obstruction and prevent people from walking into a vehicle, not unforeseeable consequence of third partys negligent driving off the road. P also cant recover on common law claim because an ordinarily prudent person would not have foreseen risk.

Martin v. Herzog (p.347) D failed to use lights after sundown against statute that required them; lights are intended for the guidance and protection of other travels on the highway Rule: it is not evidence of negligence but negligence in itself not to follow the statute still have to do with causation (breach of duty is not enough), so goes to jury with the evidence of breach of statute Divide questions of Forseeability 3) Forseeability in terms of Proximate Cause 4) Policy: would rather have these type of courts decide on a matter of law (per se negligence) vs. having this go to jury.

Safety versus Licensing and other statutes There is a trend not to award a ruling of negligence per se for violations of statutes intended to serve record keeping or other administrative functions Hence, a P probably would not be able to prove negligence per se in an action for injuries in an automobile accident where the driver had no license- the license requirement functions as a means of record keeping, not to set standards on how you should drive

Thomas v. Ketler o Town house purchaser injured because of OCIA violation. The intention of the law was to protect workers (occupational safety hazard administation) and not potential buyers. This could still be used as evidence of breach of a duty. Chevron USA v. Forbes o P was a patron of Ds gas station and slipped on gas, P tried negligence per se because gas spills had to be cleaned up. Court held it wasnt negligence per se because the purpose of the law was to prevent explosions and shit. Wawa M a minor dropped cigs on a lumber yards woods that caused a fired. Insurance company sued the store that sold M cigs. This was not negligence per se because the purpose of the statute was meant to stop minors from smoking, not prevent fires.

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Wrongful Death Acts Survival actions have a narrow goal: They provide the decedents estate with compensation for any harm that the decedent suffered up to death. Wrongful death actions compensate family members for the losses they have suffered because of decedents death. These vicarious claims have typically been limited to damages related to pecuniary losses suffered by surviving members, due to decedents loss of future income. However, other courts, such as Texas, have allowed emotional distress damages to be compensable in wrongful death actions. Wrongful Death Statutes $ Damages Compensate immediate family members for the losses that they have suffered because of the decedents death Wrongful death claims are vicarious or derivative in nature (many are limited to economic loss) o D owes a duty not just to the person they injure, but to their dependents o New cause of action for the decedents survivors o Defenses D may assert any defense he could have used against the decedent (contributory negligence, assumption of risk, consent, etc) Damages: Economic support they would have received had the accident/ death not occurred. Lost economic support, companionship, sexual intercourse Loss to the living claimants Survival Actions Personal Injury LOOK FOR: 1) If death is instantaneous, generally cannot recover Tort actions that the deceased would have been able to bring against the tortfeasor had he not died: Recovery by estate for claims for PERSONAL INJURIES the decedent had at death - THEIR pain and suffering - medical expenses - loss of income up to death 5) Survival actions have a narrow goal: they provide the decedents estate with compensation for any harm that the decedent suffered up to the moment of her death. Damages: in survival action are to provide the decedents estate with compensation for any harm that the decedent suffered up to the moment of death impending doom - Most states also allow recovery for pain and suffering (up to moment of death) o Suing for accrual of damages and personal injury up to death At that point, clock stops not a new cause of action

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Loss of Consortium Prima Facie Case Injury: loss of companionship Duty: not to produce loss of companionship Breach: acting unreasonably to cause loss of companionship Cause: Fact easy, Legal harder Damages: sex, housework, earnings outside of home, companishionship - Loss of a child: companionship, affection - Loss of parent: X Defense:

Against D: Contributory Negligence Against P: Negligence

Tort caused injury (other than death) that adversely affects the relationship of appropriate family members (spouse, child, parent) Can recover for loss of consortium in a wrongful death action (based on expected economic benefits, generally NOT for emotional distress) o Here, emotional distress = sadness, just loss of companionship o Not common to recover for childs death o In the past, women were considered as economic assets

Nelson v. Dolan (p.359) D liable for decedents fear of impending death (not common) Nelson, decedent, and his friend were driving on motorcycle. Dolan followed them and hit them off the road killing Nelson. Court doesnt distinguish between pre and post injury damages Rule: Conscious pre-fatal injury fear and apprehension of impending death survives a decedents death and goes to benefit decedents estate survival action o Pure Emotional Distress: typically not awarded absent personal injury (which is why the mother cannot recover for her emotional distress here) Ds Arg: Personal representatives offer of proof fails to establish that decedent knew how closely he was being followed and he was fearful of impending death Ps Arg: Jury can make a reasonable inference that decedent suffered conscious mental anguish. Although theres no evidence that decedent said anything prior to his death that revealed awareness, the personal representatives offers of proof provide a basis for the jury that decedent Nelson apprehended and feared his impending death during the 5 seconds his motorcycle locked with Dolans car and traveled 268 feet before he was crushed and killed H: As an element of a decedents personal injury action, conscious prefatal-injury fear and apprehension of impending death survives a decedents death and inures to the benefit of such decedents estate Rule: Sons estate can recover damages for the mental anguish he felt at impending death during chase and up to death, but P cannot sue for her pain and suffering under a wrongful death action. Wrongful death is limited to pecuniary losses, because its easiest thing to calculate, most foreseeable loss. *Under contributory negligence, if a judge or jury determined that decedents underlying claim would have been barred because his own fault was a cause of injury, this finding not only defeats survival action but also any claim for wrongful death. Under comparative fault, if factfinder

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assigns a percentage responsibility to decedent, survivor damages and wrongful death damages get reduced accordingly. Two kinds of emotional distress 6) Survivorship claim: Allows the estate of the dead person to sue in the shoes of the dead person for the claims that they have in tort if they had lived: 1. Pain and suffering associated with physical contact 7) Mothers claim: X Argument why they should give non-pecuniary losses arbitrarty line 1. general sense of suffering vs. not here to give advice 2. Drawing a line between these two? 8) Wrongful death: In the language of the statute, Legislature by saying nothing has allowed court to determine the 9) Third category of pure economic loss

Negligence per se vs. implied rights of action (grounded on statutes that you see in in per se cases) Negligence Per se 1) Gives the P a virtual breach of duty 2) Allows a duty to get along in safe reasonable fasion Implied right of action 1) Gives P a ground for redress (duty / SL claim) 2) Where there is a right created by the state there should be a remedy ( Rigsby) Statute does not create a cause of action, the implied right of act

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Implied Rights of Action Ubi jus ibi remedium: where there is a right, there is a remedy Fills the gap of duty the way negligence per se fills the gap of breach. Statutes & constitutions may create right without specifying how the rights are to be enforced. When such rights are violated, courts are left to determine whether and how the rights may be enforced. OUTSIDE of negligence In implied rights of action the passage of the statute creates a new duty where there wasnt one before at common law. Question: has Congress regulated conduct for the benefit of the public generally OR to create a private duty? *allows P a cause of action where statute that regulates a species of conduct to which no common law tort liability attaches, even though statute says nothing explicit about whether it is intended to provide causes of actions to those who are injured by violations of the statute. *overlaps with negligence per se, but negligence per se is more dominant *implied rights of action are only present in few areas of law such as securities litigation and civil rights litigation *Instead of negligence per se establishing a breach, an implied right of action creates a duty. Tex. & Pac. Ry. Co. v. Rigsby (p.370) statute creates standard of conduct, implied P fixed trains, injured himself on faulty handle when getting off the train If RR disregarded statute, statute promotes standard of conduct, they violated it, then they breached the duty that was created Rule: purpose of statute is to protect, in every case where a statute enacts or prohibits a thing for the benefit of a person, he shall have a remedy on that statute for the thing enacted for his advantage o The statute does not confer upon the individual a right to sue, so it is an implied right of action Courts response: Although this relieves D of paying fines when a car is brought to the nearest available point for repairs, 4 provision also states that the statute cant be construed to relieve a carrier from liability in a remedial action for the death or injury of an employee caused by or in connection with the movement of a car with defective equipment o H: Whether the defective condition of the ladder was due to Ds negligence is immaterial since the statute imposes an absolute and unqualified duty to maintain the appliance in a secure condition o R: In every case, where a statute enacts, or prohibits a thing for the benefit of a person, he shall have a remedy upon the same statute for the thing enacted for his advantage or for the wrong done to him. P has a private right of action by the Act because an employee injured by any car shall not be deemed to have assumed the risk

Rule: D is strictly liable because violation of federal statute created a right to recovery for P. A disregard of the command of a statute is a wrongful act, and where it results in damage to one of the class for whose especial benefit the statute was enacted, the right to recover the damages from the party in default is implied. There is no question that the statute requires secure ladders for the safety of employees. Whether Ps injury was partly due to his own negligence irrelevant because statute imposes an unqualified duty of care.

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*P doesnt use negligence per se probably because hed have to establish negligence and federal statute doesnt apply under Texas common law. Furthermore, in negligence, D can still argue affirmative defense, such as assumption of risk. No such luck in strict liability.

Rule: The question of whether the defect was a result of the negligence of the D is irrelevant, as is Ps potential prior knowledge of the defect. The statute creates a right to recovery for P, in this case, strict liability. Reasoning: There is no question that the statute requires secure ladders to ensure the safety of employees while ascending and descending (purpose of statute). The Q of whether Ds injury was partly due to his own negligence is irrelevant b/c the statute imposes an absolute and unqualified duty to maintain the train in secure condition

Court cites Ubi jus ibi remedium- Where there is a right, there is a remedy. This suggests the court believes that where a private individual is injured by violation of a statute, there is always a private right of action This case does not appear to invoke the doctrine of negligence per se- it does not suggest that the statute in question provides a standard of care that will govern Rigsbys common law tort action Court imposes strict liability rather than fault based liability----Still good law

Why not negligence per se here? Perhaps because the D is technically not breaking the law at issue. They are immune from fines in this case because of a safe harbor provision. However, that provision does NOT preclude D from being liable to someone like P. Instead of negligence per se establishing a breach, an implied right of action creates a duty. If there is a duty, there is a right to remedy (according to this case).

J.I. Case Co. v. Borak (p.371) congressional purpose LIMIT of IRA Congressional Purpose: purpose of statute to prevent management or others from obtaining authorization for corporate action by means of deceptive or inadequate disclose to shareholders JI Case solicited proxies from shareholders to cast votes; Borak didnt agree with recommendation, but it was cast for him anyway Statute: prevent management or others from obtaining authorization for corporate action by means of deceptive or inadequate disclosure to shareholders Rule: duty of the courts to be alert to provide such remedies as are necessary to make effective the congressional purpose o Here, the SEC could not have caught the mistake private right of action

Cort v. Ash (p.376) Determining whether to infer a private ROA from a statute: Designed to assist courts in determining whether to infer a private right of action from a statute court walking away from this idea! In Cort v. Ash (1975), the court refused to find an implied right of action within a criminal law banning certain campaign contributions by corporations. The court identified a 4 part test to assist in

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1. 2. 3. 4.

Determining whether to infer a private ROA from a statute: Is the P one of the class for whose especial benefit the statute was enacted that is, does the statute create a federal right in favor of the P? Is there any indication of legislative intent, implicit or explicit, either to create such a remedy or to deny one? Is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the P? Is the cause of action one traditionally relegated to state law, in an area basically the concern of the states, so that it would be inappropriate to infer a cause of action based solely on federal law?

Cort v. Ash still operated under the assumption of Rigsby and Borak that the courts had broad discretion to determine whether, in their judgment, it would promote justice or the aims of the statute to identify a private ROA; 4 years later, the court abandoned this posture in favor of an approach much more deferential to Congress

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Affirmative Defenses
Assuming that the P had plead all 4 elements of a prima facie negligence claim Plaintiffs Fault Defendants Fault If any, P pays for whole D pays for nothing accident If P 25% at fault, pays 50% If D 75% at fault, pays 50% Split fault percentage-wise

Contributory Negligence Divided Damages Comparative Fault

2 3

Modified: P is barred from recovery if jury assigns more fault to him than D o 50+: P doesnt recover anything if their actions are more than 50% at fault o 50/50: if P is 50% or more at fault, contributory negligence kicks in Pure: divides liability in proportion to relative degrees of fault of all parties Pro Rata: divided damages, fault is divided equally under maritime law. Used when calculating fault is impossible

Defendant can raise defenses can be raised in the pleadings Contributory Fault / Comparative Fault 1) Enter Plaintiff fault as at least one of the two necessary but-for causes 2) Burden: D assert prove that Ps careless was part of the cause of the accident Assumption of Risk 1) P did something that makes them less deserving of recovering/ relieved me of Ds duty, not that they were careless 2) Affirmative reasons why the D should not be liable Statute of limitations 1) Less focusing on Ps conduct 2) Burden: on D, focus on time has passed

Most affirmative defenses include P fault: 1. Contributory Negligence: proof of Ps fault relieves D of 100% of cost of accident idea that even 1% of fault of P will result in 100% exoneration of D - unitary all purpose zero-out 2. Pro Rata (divided damages): divide by amount of parties involved, despite of actual amount of contribution of actual parties 3. Pure Comparative Fault: proportionate fault o Should discount Ps contribution to the injury o 4. 0% (ie: intentional tort) no relation to negligence law

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COMPARATIVE FAULT IS NOT A DEFENSE TO INTENTIONAL TORTS!!

Last Clear Chance exception: Where the would otherwise be held to have been contributorily negligent, the will still be liable if she had the last chance to avoid the harm, yet failed to If, despite Ps contributing carelessness, the D has the last opportunity to avoid an accident and did not, they will be barred from raising Contributory Negligence as a defense (2nd act of carelessness committed) o P carelessly drives truck across train track and gets stuck. If P can prove that D train could have applied brakes but didnt, P can recover even though P is partially at fault because D could have prevented accident. - artially at fault because D could have prevented accident. ASSUMPTION OF RISK (express/implied) Individual must know and appreciate the risk (subjective) She must freely and voluntarily assume

Contributory Negligence Complete bar to any recovery by [mostly abolished] *NOT a valid defense to intentional torts/recklessness* Contributory Negligence: 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.] Any contribution by the victim (no matter how trivial) would destroy the Ds responsibility to provide any redress to the victim 1) Carelessness/negligence on the part of the P which played a causal role (with the proximate cause overlay understood) would immediately immunize the D from liability; doesnt apply to intentional torts 2) Last clear chance: if a D has the last opportunity to prevent an accident resulting from careless acts of both the D and the P, the D will not enjoy the protection of the contributory negligence defense Where it seemed counterintuitive to permit a D to avoid responsibility for an accident that he could have foreseen and avoided just because the Ps fault also contributed to the injury

Contributory Elements o s conduct o That does not meet the standard of care o For his own protection o And is a cause of his harm (but for or substantial factor) Any carelessness on the part of the plaintiff that contributes to her injury results in a careless defendant paying nothing and the plaintiff suffering the full burden of the loss o 1% fault of P = total immunity for D To determine fault: Question of fact consider relative responsibility to make an equitable apportionment or allocation of loss Contributory negligence: This was the dominant rule until recently. Now only in 4 states.

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o o

Conduct on the part of P which falls below the standard of conduct which he should conform for his own protection, and which is a legally contributing cause cooperating with a negligent D in bringing about Ps harm Complete defense for defendant Does not extend to claims of recklessness or intentional wrongdoing by the D Ps duty to herself is assumed

Comparative Fault (Rejects the all or nothing approach of contributory negligence and divides liability between the and in proportion to their fault.) In spite of her own negligence, is allowed to recover a portion of her damages, reflecting the percentage of her injuries caused - Pure comparative fault o can recover damages from no matter to what extent his own negligence contributed to his injuries o Regardless of how small or large contribution of negligence is, P can recover from at-fault defendant. If D is 1% at fault and P is 99% at fault, P can still recover 1% of damages from D.

Modified comparative fault o may recover only if his own fault caused less than a set fraction of his own injuries; 50% rule in one of two forms: (1) s negligence must be less than 50% to recover, or (2) s negligence can be no more than 50% responsible for his own injuries to recover o Modified: P is barred from recovery if jury assigns more fault to him than the D 50 + rule: P doesnt recovery anything if their actions are more than 50% at fault for injury 50/50 rule: if the P is 50% or more at fault, contributory negligence kicks in

Comparative responsibility: rejects the rule that a negligence claim must be dismissed upon a finding that some carelessness on the part of the claimant contributed to their injury D must prove P acted carelessly and carelessness was but-for cause of injury Comparative fault doesnt necessarily affect joint and several liability Ps fault must play a causal role in bringing about own injury for comparative fault to apply. Failure to mitigate: Spier: no seat-belt not but-for, but consider in reasonableness Comparative responsibility o D must prove P acted carelessly and carelessness was cause-in-fact of the injury o Rejects the rule that a negligence claim must be dismissed upon a finding that some carelessness on the part of the claimant contributed to her injury

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Divided damages/Pro Rata: This was dominant in admiralty law. Between all parties in an accident, damages are divided on a pro rata basis (evenly among the parties, regardless of fault). This was dumped in Reliable Transfer Co, which held that damages are to be divided equally only when parties are equally at fault or it is impossible to fairly measure the comparative degree of each actors fault 2. Modified comparative fault: allows partial recovery until Ps fault reaches a certain percent, at which point, P is barred from recovery o 50+ rule: P can recover all of his damages, minus his own contribution to him unless P is determined to be more than 50% at fault at which point there is no recovery. If P is 40% at fault, he can recover 60% of the total damages, but if P is MORE THAN 50% at fault, he recovers nothing. Over 20 states use this o 50/50 Rule: P is barred from recovery when she is equal to or more negligent than the defendant(s) If P is 50% at fault, she would be barred from recovery About 15 states use this

** Plaintiff can only collect the percentage of fault assigned to each D unless the court rules the Ds joint and severally liable. See Rogatnick

Predecessor or comparative fault United States v. Reliable Transfer Co. (p.393) divided damages of comparative fault Reliable sued US for failing to maintain a flashing light that wouldve told captain to avoid a sandbar Court found coast guard 25% at fault, captain 75% Rule: Comparative fault should be used unless it is too hard to fairly measure the comparative degree of fault of the two parties divide equally (maritime law).

Hunt v. Ohio Dept. of Rehabilitation & Correction (p.395) modified comparative Prisoner (special duty relationship to protect against unreasonable harms between state and prisoners) went through bad training of how to use snow blower stuck her hand in after she turned it off to unclog it and lost fingers D did not adequately instruct P on the proper operation of blower Breached duty of reasonable care; P 40% at fault Rule: Ps actions under 50% at fault therefore under comparative negligence damages should be adjusted accordingly (OH uses 50+ rule) Modified comparative fault rule If P/D = 50%/50% > P wins If P is 50%+ > D wins Rule: There is special relationship between P and D, such that D owes P duty of reasonable care and protection from harm. D breached that duty, which caused Ps injury. P was 40% responsible, can only recover 60% of damages.

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Comparative Fault and Causation Establishing the unreasonableness or a Ps conduct is NOT enough to make out a defense of contributory negligence A D must also prove causation, meaning the Ps negligence actually played a role in bringing about the injuries suffered, Martin v. Herzog In other words, part of Ds burden of proving the defense of comparative fault, normally has to prove that but for Ps fault, the injury would not have happened Martin v. Herzog: D was driving on wrong side of road but P did not have lights on. D used statute to establish negligence per se, but establishing unreasonableness of conduct is not sufficient to make out defense of contributory negligence. Ps violation would defeat her claim only if it actually played a role in bringing about the INJURIES suffered by decedent. Spier v. Baker D drove truck into Ps car. Because P wasnt wearing seat belt, P was thrown from vehicle and car ran over leg. Court ruled that failure to wear seat belt could not constitute contributory negligence because no evidence that violation was a but-for cause of ACCIDENT; however, jury could consider violation in determining whether P failed to mitigate damages.

Basically, Spier holds that Ps carelessness must contribute to bringing about ACCIDENT before it can be comparative fault. Other courts say that as long as Ps carelessness contributed to bringing about INJURIES, its comparative fault.

OTHER COURTS HAVE DISAGREED WITH SPIER: IF FACTFINDER CONCLUDES THAT FAILURE TO WEAR SEALT BELT WAS BUT-FOR CAUSE OF PS INJURIES, JUDGE OR JURY CAN ASSIGN COMPARATIVE FAULT TO P.

Contributory negligence vs. Comparative Fault: moral perspective: comparative fault allows for a more equitable allocation of responsibility, BUT D risked harm to others while P only risked harm to himself accident avoidance perspective: comparative negligence encourages all parties to engage in the most cost efficient behavior to avoid potential mishaps compensation perspective: comparative negligence allows a negligent P to receive compensation against all negligent defendants, reduced by his own fault; holds everyone financial liable

Contributory negligence because there the argument for D was, I owed you a duty and I breach that duty, but I dont owe you anything because you acted unreasonably
Assumption of Risk:, the argument for D is: I may have owed you a duty, but you released me from that duty

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Assumption of Risk NOT A DEFENSE TO INTENTIONAL TORTS P is barred from recovering because she knowingly and voluntarily took on the risk that she might be injured by careless conduct on the part of the Ds; o If P is drunk, even if D didnt know, seems that P will prevail; they may be comparatively at fault for having been drunk, but did not assume the risk Assumption of Risk Elements : o 1. Did P take on such risk? o 2. Did P do so knowingly and voluntarily? o 3. Are there policy reasons for courts to decline to enforce such assumption of risk? Note: Complete Defense - Unlike comparative fault, D does not claim that P acted unreasonably or caused some fault, but that P chose to relieve D of a duty: P repudiated the duty.
Primary assumption of risk: no duty, question of law for court Secondary assumption of risk: asks whether P reasonably appreciated and chose to encounter the relevant dangers, comparative fault

P will want to argue comparative fault so they at least get something D will argue assumption of risk first because then P gets nothing - A negligent actor will argue the victim is barred from recovery b/c she knowingly and voluntarily took on the risk that she might be injured by careless conduct on the part of the D o Did the P in fact take on such a risk? o Did she do so knowingly and voluntarily? Subjective but obvious risks will be included The duty element has been removed, Usually, there WOULD be a duty, but in this case P waived it.
P cant be said to have assumed the risk if there was no available alternative. o However, if you are negligent and Ps fault is then incorporated into situation, then comparative fault and you may recover. o Seems its better to be a moron than reasonable P is careless, only has to pay % of damages P is reasonable, he pays full amount Most states have excluded implied assumption of risk as a defense because of comparative fault, but have excluded certain activities from that merger, ie: sports - Those injured by carelessness while participating in sports or recreational activities.

NOTE: The characterization of the plaintiff has significant effect on chances of recovery. - Scenario 1: P testifies that she reasonably assumed the risk > no recovery because she gave duty back. o Assumption of Risk Scenario 2: P testifies that she saw the unreasonable condition but didnt quite understand the consequences of the condition; shes saying she is careless BUT that D is careless as well, and she can recover percentage of her fault. o Carelessly exposed herself to risk both are careless

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IMPLIED ASSUMPTION OF RISK IN A COMPARATIVE FAULT REGIME REWARDS THE MENLOVE AND PUNISHES THE REASONABLE.

Comparative fault means that ass of risk is limited to express ass of risk and some cases of implicit ass of risk (where people are acting so stupidly that we will stick them with their own stupidity); the more rational you are, the more likely you are thrown in ass of risk; the more stupid you are, the more likely you are to be thrown in comp fault (unless you are REALLY stupid and then you are back in ass of risk)

Ask: Does the jurisdiction reject secondary assumption of Risk? - The more deliberate the embrace of Ds actions to the victim > Ass of Risk - The more inadvertent / unreflective (P failure to encounter > Compar. Fualt.
Express Assumption of Risk Explicit assumption requires an opportunity for the parties to negotiate with each other prior to the accident. Arises when there is a contract Release is actually written or spoken (Waiver) P gives up something and allows the D not to owe P duty of due care Bailment: when one person hands over personal property to another for safekeeping o Most courts have refused to permit commercial bailees to exculpate themselves in this manner on the grounds that such provision are against public policy There are some tort relationships which no waiver can permit explicit assumption of risk (most important example is medical malpractice) Exculpatory Agreements (Contracts o strictly construed in favor of party giving up liability o must have been freely/fairly made o must be between parties of equal bargaining power o cannot interfere w/societal interest o test for validity see Jones v. Dressel

Rosen v. LTV Rec. Development: 4 considerations in determining the validity of exculpatory agreements: The existence of a duty to the public (see Tunkl below) The nature of the service performed Whether the K was fairly entered into Whether the intention of the parties is expressed in clear and unambiguous language

Jones v. Dressel (p.404) extreme sport not in public interest 17 year old signed K for skydiving. When he turned 18 he continued to skydive until accident. He claims to have disaffirmed the K before the accident but the court thinks he ratified the K by continuing the K terms after turning 18, exculpatory agreement doesnt affect the public interest Rule: an exculpatory clause in a K relating to recreational activities will be given effect where the intention of the parties is expressed in sufficiently clear and unequivocal language and doesnt fall within any of the categories where the public interest is directly involved Determination of exculpatory agreement is a question of law for the court

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Rule: Agreement is valid, was entered into knowingly and voluntarily (not an adhesion contract), service provided by D was not essential service. Even if the K is nonnegotiable, there was not unequal bargaining power, or an unavailability to obtain the skydiving services somewhere else; Though P was a minor at time of signing, he impliedly ratified once he was of age by using the service Tunkl Factors to determine validity of exculpatory agreement (Majority Rule) o 1. existence of a duty to the public (business is suitable for public regulation; service of great importance to the public; willing to perform service for any member of public who seeks it); o 2. the nature of the service performed o 3. whether the K was fairly entered into and o 4. whether the intention of the parties is expressed in clear and unambiguous language Dalury v. S-K-I, Ltd. (p.409) public policy cheapest cost avoider VT rule P was skiing at Ds resort and collided with metal pole of lift line; P had signed a waiver of liability on season pass, HELD TO BE INVALID Ski resorts have a general invitation to the public at large business invitees have right to assume that the premises is reasonably safe and proper precautions have been taken to safeguard them Rule: Agreement is unenforceable because it is against public interest. D was in the best position to safeguard against such risks and was the cheapest cost avoider. They can spread the cost of insurance among their thousands of visitors while skiers cannot insure against Ds negligence (court thinks they will not raise prices, simply invest in safety) o cannot waive a duty to the public o cannot assume a risk if there is no available alternative o cannot impliedly or explicitly waive the risk of medical malpractice o When a substantial # of people come to the business as a result of Ds own invitation to the public, a legit public interest arises

Rule: What constitutes the public interest must be made considering the totality of the circumstances of any given case against the backdrop of current societal expectations. No single formula will reach the relevant public policy issues in every factual context. The waiver is not valid. Regardless of whether a ski resort provided an essential public service, it was a facility open to the public, and a business owner owes a duty of active care to its customers to ensure that its premises were in a safe and suitable condition. They are the only party with the expertise to do this. To allow them a broad release from liability would mean that they lose their incentive to keep the grounds safe, which would eventually cause more harm to customers. This is unsound as a matter of policy. The idea is derived from the Hand test we saw in Carroll Towing. Note: There seems to be a difference between skydiving and skiing: one is perceived to be an activity in which one must expressly assume some risk (societal expectations). Also, skiing is an activity where it is considered better to spread costs around (cost spreading): Ds will be able to raise prices. - Also note the diff b/w negligently crashing a plane, and keeping a business open to the public with unsafe conditions

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Hand Test: In addition to cost-spreading, D is also the cheapest cost avoider: they are best able to reduce the risks inherent in the activity by spending a small amount of money to make things safer (i.e. putting pads on the metal poles).

Implied Assumption of Risk A complete bar to recovery - With implicit assumption of risk, the Ps engagement in the particular activity is a knowing acceptance of risk. D must show Ps conduct suggested: o 1. Open consent to risk o 2. Voluntary participation in activity o 3. Full understanding of danger Must be a danger inherent in the activity, cant be a danger created by negligent operation Murphy v. Steeplechase Amusement Co. identify a knowing encounter of risk and treat that as implied assumption Coney island flopper ride. Barred because the P had assumed the risk of being injured by that sort of negligence; one who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary o THIS IS THE MAJORITY NOW Primary Assumption of Risk: identify a knowing encounter of risk and treat that as implied assumption Everything else is treated as comparative fault Smollett v. Skayting Dev. Corp. (p.414) Woman goes roller-skating on a rink, she noticed no railing, skated anyway. Rule: Implied assumption of risk is a complete defense. Here, it is implied because her nonnegligent conduct constituted waiver/consent. Because P reasonably assumed the risk of skating (inquiring about lack of guardrails, knowledge of carpet around the elevated rink), she is barred from recovery (complete affirmative defense for D).
Ps Arg: P didnt assume the risk because she was not aware of the dangerous condition created by the combination of all the circumstances at the rink: the lack of guardrails, elevated skating areas, difference in coefficient of friction between the skating surface and the surrounding carpet area Ds Arg: P assumed the risk of injury

Court: She implicitly assumed the risk of injury and knows there were no guardrails, the skating area was covered with a smooth surface and was elevated and the area around the rink was carpeted and there were kids. These circumstance were clearly visible.
To reach the rink she had to walk on the carpeted area with her skates and had to be aware the carpet slowed down the wheels on the skates. She had skated many times before and new that people might have fallen down in her path

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Statute of Limitations TOTAL defense P must commence lawsuit within a certain amount of time - D enjoys total immunity if statute of limitations is up - Start the clock running in relation to the occurrence of: o 1. The alleged tortious conduct, and o 2. Harm to the claimant caused by the conduct Inquiry Rule: Once P knows possibly or probably has notice of cause P has duty to investigate - Knowledge is imputed to a claimant when he gains information sufficient to alert a reasonable person of the need to investigate o Shows how harsh rule can be and how fairness/unfairness, arbitrariness arguments are not easily, if not ever, accepted by a court Discovery Rule: (or notice inquiry) clocks start running when o 1. P knows or has reason to know that they have suffered an injury o 2. There is sufficient reason to believe that Ds conduct is causally linked to that injury Ranney v. Parawax Co. (p.424) duty to investigate once one knows or should know of condition P was exposed to toxic materials during work, became ill. In 1985 tried to find doctor but not until 1991 that the found one that suggested a link. - He knew he had suffered a possible, not probable, compensable injury from paint and is barred from suit even though he inquired and was misinformed. Rule: P had a duty to investigate didnt need actual knowledge Statute of Repose: sets limits after D acted, by reference either to the date of the tortious act alone, or to some other date (date product bought?) gives comfort to D Very harsh time period is irrelevant to knowledge Doctors enjoy protection in some states, no med. mal. Even though symptoms dont manifest until after statute elapses Continuing Torts: SOL does not run with beginning of tort. (ex: spousal abuse) Permanent Torts: SOL is at beginning of act. Tolling: Depending on tort, some do not begin until minor reaches majority.

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Immunity and Exemption from Liability Intrafamilial and Charitable Immunities Familial: recognition of the authority of the patriarch over the family, as a means of leaving parents free to discipline children without fear of liability and also to prevent family members litigating amongst themselves - Exceptions: o 1) claims by minors subjected to cruel/outrageous treatment, o 2) claims by those who reach age of majority at the time of tort. Charitable: Bars actions against charitable institutions, but only for negligent wrongs (as opposed to intentional/reckless); most states have rejected absolute immunity for charities. Damage caps. Immunity to volunteers who injury others. Sovereign Immunity Immunity of government from being sued in its own courts. Only way SI is waived is through statute, not common law.
You can sue the federal government for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the government while acting within the scope of his office or employment, EXCEPT when the claim involves the exercise or performance or the failure to perform a discretionary function or duty on the part of a federal agency or an employee of the government, whether or not the discretion involved is abused.

FTCA: Federal government is subject to tort liability for matters where they act like they are a private employer. Subject to liability if a private person would be liable to the claimant in accordance with the law of the place where the act or omission occurred. There are Protections built into the FTCA: - No punitive damages against the government o Claimants cant obtain punitive damages against the government, even if such damages could
be awarded were the D a private entity

No jury trial (bench trial) Excludes intentional wrongdoings from government liability unless committed by an investigative or law enforcement officer Federal employees have personal immunity against liability for torts committed w/in the scope of their duties- judges, legislators, discretionary functions for official

Feres Doctrine: Found implicit in the FTCA a broad rule barring any suits by military servicemen against the government for injuries arising out of, or incident to, their service Westfall Act: federal employees exempted from being held individually liable for torts committed during the scope of their employment. State/Local Govt: Exempt from liability for governmental activities, but not proprietary activities (operating utilities)

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Duty Exemption Riley v. United States (p.437) FTCA doesnt waive immunity for failing discretion acts Driver is hit at intersection, blames accident on USPS because of mailbox places. Rule: USPS has sovereign immunity under FTCA. The FTCA does not waive immunity for failure to perform a discretionary function of duty by government or their agencies. FTCA has no dangerous condition exception to discretionary function exemption. Test if discretionary activity 1. Conduct must be discretionary element of judgment or choice

2. Judgment is the type the exemption was supposed to shield

Liability Exemptions: No-Duty Rules for Local Government and Private Entities Public Duty Rule: Although duty is owed to public at large, no duty to individual members! o Exceptions: Volunteering to assist, special relationship Public Duty Rule = no duty The state does one thing that private enterprise does not do: Security of civil society - The activity of providing public protection is not like the activity of owning a building and is therefore not available to traditional duty analysis. To analogize it is a category Error. Courts deny liability for a government entity on the ground that, although government owes certain duties to the public at large, it does not owe duties to any individual member of the public. Thus, no individual has standing to sue for damages caused by the breach of such a duty. cannot be held liable for the injuries of an individual resulting from a public officer's or employee's breach of a duty owed to the public as a whole as distinguished from a duty owed to the particular individual.
Riss v. City of New York (p.443) Public Duty Rule Woman stalked by guy, she warned police but they never acted, guy threw acid! Rule: without legislation, court cannot create tort liability for police protection to members of public generally. Police have duty to act reasonably, but dont have a duty to initiate rescue Crushing burden: every time crime is committed, city would be sued for failing to protect because of inadequate police protection cant allow it Kircher v. City of Jamestown (p.452) Creation of Special relationship have duty to rescue! 1) Assumption by municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; 2) knowledge on the part of the municipalitys agents that inactions could lead to harm 3) some form of direct contact between the municipalitys agents and the injured party; and 4) that partys justifiable reliance on the municipalitys affirmative undertaking Strauss v. Belle Realty Co. (p.453) ConEd is not liable under Public Duty Rule (orbit of liability) NYC blackout, Strauss injuries himself on the stairs of his building which has a contract with ConEd. Rule: Limit liability to these injuries based on contractual relationship (PP) - ConEd would not be cheapest cost avoider because it would raise costs for all if it incurred liability.

Dissent: thinks the cost should be spread, they have many customers so who cares

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Rule: Even though Ps injury may have been foreseeable, to allow him to recover create crushing burden of endless liability and the line has to be drawn somewhere, as a matter of policy. D is not answerable to P, tenant of an apartment building injured in a common area as a result of Ds negligence as required by its agreement with building owner. Instead, D owes duty to management company (Winterbottom v. Wright all over again!) Dissent: There should be a fact finding hearing to establish the alleged catastrophic probabilities flowing from the blackout and prospective blackouts before limitation is placed on Con Eds duty to respond to the public for personal injuries. Court needs to blind itself to a city-wide deprivation of electric power, or to the impossibility of fixing a rational boundary once beyond the contractual relationship, or to the societal consequences of rampant liability in order for the court to

Cheapest Cost Provider: Calabresi

Rules of tort law structured for efficient deterrence whether dollars spent on preventing accidents are spent efficiently to maximize precaution-taking and injury Laws should provide incentives to those in position to provide cheapest cost precautions or to cover the cost of the accident/eliminate the risk Doesnt always take into account moral obligations

Why do we want to limit duty on defendant when there is a large pool of plaintiffs? - Loss distribution is a theory that its always better to find a mechanism for spreading the cost of accidents instead of limiting them to one party

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Damages and Apportionment

P AS DONUT, AND THERE ARE THREE BITES OF THE DONUT: 1) Lost earnings (present and future) 2) Medical expenses (present and future) 3) Pain and suffering (present and future) (These can include hedonic losses, losses not just measured by pain but measured by absence, ex. loss of ability to play piano might be psychological pain) FROSTING AS PUNITIVE DAMAGES (but not every donut has it) Look For: Bifurcated trials: - Concerned Defendants often want a bifurcated trial with a damages trial later, want that jury to not have seen the evidence o Judge has discretion to bifurcate though many wont

Compensatory Damages
Medical Past/future costs to repair bodily damage Future Expenses/Earnings Lost economic advantage; diminished earning capacity; lost/diminished of value to property Economic Expert testimony, asked to make predictions as to how long P would have worked and at what rate of compensation Non-economic losses Physical pain, mental suffering, loss of value to sentimental chattel Non-Economic, harder to quantify Witness testimony, sometimes expert.

Economic Expert testimony, asked to make predictions as to how long P would need medical assistance

#1 ECONOMIC -- past and future medical bills, lost earnings, repair costs Medical expenses - Economic loss o What you took is whatever it takes to put person in original position in terms of corporeal integrity this includes future care, equipment, companion, wooden leg Earnings Capacity - Economic loss, has a market value which can be ascertained - Loss of earnings after the accident that was caused bythe accident - Much harder to calculate then medical expenses - Not as objective; the less info to have the harder and more speculative it becomes to measure #2 NON ECONOMIC -- As result of tort, depression, anxiety, Pain and suffering - Non-economic loss - No theory about how to measure but we allow juries to measure anyway - Most tricky: no market value; measuring pain and suffering which is highly subjective; incentive to lie; inflate what theyre experiencing Punitive Damages: The icing Almost never get awarded; 3% - Only a few tort actions that are intentional - US is the only system that has it Before, you have a complete person/donut You take it as you find it if you lick the icing off you better replace it. Hedonistic Damages loss of enjoyment of life Catch- All Nominal damages: acknowledgment of the tort notwithstanding the absence of any compensable losses flowing from it Injunctive Relief:

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Eggshell Plaintiff Permits the imposition of liability for foreseeable types of harm whose magnitude is unforeseeable because of a hidden vulnerability in the Plaintiff. Having wronged and injured another, a tortfeasor cant be heard to complain that the amount of damage caused to that other was much greater than anyone could reasonably have expected because of a hidden physical vulnerability in the plaintiff. Take the Plaintiff as you find them, no exceptions; - Once the body has been touched, proximate cause is suspended anything that occurs is a but-for cause Smith v. Leech Brain & co. Ltd. (p.463) Eggshell Plaintiff Rule Rule: Tortfeasor takes victim as he finds him. Question is whether employer could reasonably foresee the type of injury suffered. (The burn, not whether burn would cause cancer.) The test is NOT whether these employees could reasonably have foreseen that a burn would cause cancer and that he would die. The question is whether these employers could reasonably foresee the type of injury he suffered, namely the burn. In the particular case that depends upon the characteristics and constituting of the victim. Kenton v. Hyatt Hotels Corp. (p.469) Excessive verdict determination? Skywalk collapsed in lobby and injured P. P settled, so jury only had damages. Rule: Jury can consider evidence of the scene of collapse in evaluating physical and mental injuries for the purpose of compensatory damages Judge shouldnt change jury damages award unless it shocks conscious Evidence as success as law student is relevant to earnings capacity P given damages mostly on lifetime earnings as a lawyer. Test: What fairly and reasonable compensated P for the injuries sustained? In making the determination, consideration is given to the nature and extend of the injuries, diminished capacity, economic conditions, plaintiffs age, and comparison of compensation awarded and permitted in case of comparable injuries. Past and future pain and suffering, embarrassment and humiliation, future care and medical treatment, loss of or reduction in employment opportunities are factors that do not lend themselves to precise calculations. Look for: Ps age and a comparison of the compensation awarded and permitted in cases of comparable injuries. Eggshell Plaintiff and the Duty Element Mustapha v Culligan of Canada Egg Shell Psyche Dead fly in water cooler, P was compulsive about maintaining a sanitary home became obsessed with the thought that the family consumed contaminated water. - Rule: D could have reasonably forsseen that contaminated water might cause some distress to certain kinds of customers, BUT damages were limited on the Plaintiff failed to show a duty. - Duty: Water company duty was to take care to avoid subjecting others to the stort of experience that would likely cause emotional distress to a person of normal fortituted or sensibility.

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Duty to Mitigate Damages Pre & Post Post Accident Duty to Mitigate: the notion that a P may sometimes bear responsibility for the magnitude of her damages - Rule: Rule of avoidable consequences applied only to unreasonable failure to mitigate - Burden of Proof: is on Defendant to sho that p could have reasonably avoided harm

Collateral Source Rule D is not entitled to present evidence at trial indicating that the claim has received or stands to receive compensation for injures from another source. many states have legislated a set-off to pay out Assuming the state has not abolished the common law collateral source rule, Ps recovery is the same as it would be if had not gotten any reimbursement

Spier v. Barker Pre-Accident Duty to Mitigate (seat belt) Holding: Ps failure to wear a seatbelt was not contributory negligence, but was a failure to mitigate. Blocked from recovering any damges that would not have been suffered if P had sought proper

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Punitive Damages
Distinguished from compensatory damages because theyre really about punishment, about deterring tortious behavior that is particularly egregious (see Hand Test). Note: Ds wealth has NO influence on reward

R 500: P must demonstrate that they have been victims of certain aggravated forms of mistreatment involving malice, insult, oppression, or wanton/willful violence Reckless disregard for others well-being: o When unreasonable conduct poses a grave danger of harm to others when he has reason to know of facts which would lead a reasonable person to realize that those dangers attend his conduct = wonton disregard Deliberate indifference to others physical well-being: o Person who is aware both that his conduct creates an unreasonable risk of physical harm to another, and that such risk is substantially greater that that which is necessary to make his conduct careless; requires a conscious choice of a course of action with knowledge of the serious danger to others involved. Wantonness it is enough if it is shown that, indifferent to consequences the D intentionally acted in such a way that the natural and probable consequence of his act was injury to the P Willfulness: it must appear that the negligent party knew, or had reason to believe, that his act of negligence was about to inflict injury, and that he continued in his course with a conscious indifference to the consequences from which malice may be inferred B of P: clear and convincing standard: must be sufficient to permit a reasonable jury to conclude that D not only committed a tort but acted with malice or indifference National By-Products, Inc. v. Searcy House Moving Co. (p.485) gross negligence not sufficient for punitive damages Foley driving overweight truck too fast, hit and killed two in another car, and destroyed house being transported. Rule: an award of punitive damages is justified only where the evidence indicates that the D acted wantonly in causing the injury or with such a conscious indifference to the consequences that malice may be inferred o *weird result because punitive damages were given to dead people* Mathias v. Accor Economy Lodging, Inc. (p.489) gross negligence = punitive
Management knew about bed-bugs and did almost nothing about it Rule: Sufficient evidence of willful and wanton conduct to permit an award of punitive damages. They knew to a substantial certainty the bugs would cause harm. o Market failure where probability of detection by P is low and chance that P wil litigate is low and cost of litigation is high Hand Test would fail so punitive damages fills the gap.

Posner on Punitive Damages (1) Punishment should fit the crime (2) Corrective justice: based on the wrong done Award of damages here: prevent the defendants ability to profit from its fraud by escaping detection. Policy Arguments (550) Concern is that P will treat compensatory award desitred as the price to paid for seucing the right to injure others (2) Deterrence for anti-social conduct Menlove v. Mathias Menlove is consciously careless (no punitive damages) Mathias- motel, which knew and made the decision not to treat bugs acted with deliberate indifference (yes punitive damages)

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Vicarious Liability Direct liability: asserts that the employer acted wrongfully and that this wrongful conduct helped bring about Ps injuries Vicarious liability: doesnt assert that management itself has done anything wrong; it asserts that management are on the hook for the wrong of an employee within scope of employment (strict liability) 1. Employer must have right to control details of Employees performance 2. Employee must be acting within the scope of his employment Look carefully at the relevant scope of the employment, is there evidence that it was not white the employee was hired to do Look at real working relationship, not contractual relationship. : Employee detour: consists of a slight deviation from expected course or route that an employee would take in the course of doing job X: Employee frolic: consists of an employee who so far deviates from his employment obligations that he is deemed to be on his own business Respondeat Superior: -- let the master/employer answer for his servant. - Despite precautions that might be taken, you are ultimately responsible for the acts of employees within the scope of employment; not asserting fault o Can be held liable for intentional torts as well o Can be held joint and severally liable with the employer o Can seek indemnification from your employee for his negligence or a retailer can seek indemnification from manufacturer for products liability Characteristic Activity Test Scope of Employment - Is the risk was one that may be fairly regarded as typical of or broadly incidental to the enterprise undertaken by the employer. o if the risk is foreseeable to the employer, if endorsed by express or implied permission o if activities have become a customary incident of the employment relationship o met whenever broad potential effects on morale and customer relations exist The activity the employee engaged in was characteristic or incidental of their lifestyle as an employee of the D. If the employee acts with intent to further his employers business purpose - Employer benefit is satisfied when relationship has a broad potential effect on moral and customer relations. Employer should be liable for those faults that may be fairly regarded as risks of his business whether they are committed in furthering it or not, even if doing forbidden work

Employer Exceptions
Generally not liable for torts of doctors or independent contractors inherently dangerous activities, when activities are closely supervised.

Employee Exemption - Employer and employee held jointly and severally liable under respondeat superior except federal and state govt, only govt liable, not employee - Person injured by a federal employee acting within the scope of his employment cannot recover from the employee, but may only recover from the employer. o *Rule does not apply to independent contractors o *Rule does not let employee off the hook jointly and severally liable

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Respondeat Superior Strict liability for employers when employees conduct is WITHIN THE SCOPE of their employment. o Doesnt assert that the management did anything wrong, but on the hook! Taber v. Maine (p.502) respondeat superior for action characteristic of employment Both naval guys were off duty, Maine was drinking on and off base, crashed into Taber while Taber was going to visit girlfriend. Ask if the employees act is not unusual or startling that it would be unfair for employer to be held liable. Rule: employer is liable for accidents, which may fairly be said to be characteristic of its activities. Liable for risks of business regardless. It was neither unusual nor unreasonable for assailants to be on the job site drinking! o Cheapest cost avoider - Calabresi Rule: Where certain activities are performed within scope of employment, the employer can be held liable for injuries under doctrine of respondeat superior. The old test used to be whether the activity gave any material benefit to the employer. Trial Judge: - Legal test if activity of the employee can be attributed to the employer under respondent superior: Was he acting as an agent of the US govt when the acts occurred. Reversed: FTCA tells us to use the California Test: - California Test: The inquiry should be whether the risk was on that may be fairly regarded as typical of or broadly incidental to the enterprise undertaken by the employer (504) (P friendly test) o General Test: a customary incident of the employment relationship

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Joint Liability and Contribution two negligent actors, independently of each other or acting in concert, caused a single indivisible harm to the P, such that there is no way to tell which tortfeasor caused which portion of the harm. o Three principle situations where you commonly see it: Tortfeasors act in concert; Tortfeasors fail to perform a common duty to the ; and Negligence of several tortfeasors acting independently combines to produce an indivisible injury to

Note: In cases of joint/several the fact that the jury asked the jury for poroptionality purposes this does not limit the victum from choosing who she can recover from. P can seek 100% of damages from any one of them; Ds settle accounts with one another apportionment irrelevant at trial, deal with it in contribution claim Contribution: D who is made to pay more than his share of liability that is jointly owed by another can bring a claim against the other party in restitution o Applies the apportionment number jury gave at trial #1 Multiple Tortfeasors: (1) Single (2) Indivisable harm (but-for failure of both Ds to act reasonably, the injury would not have occurred) Ravo v. Rogatnick (p.513) joint and several liability indivisible injury One doctor misdiagnoses patient, gives info to another doctor, who acts upon it carelessly causing injury to patient o Both are but-for causes of the injury and liable Rule: Doctrine of Indivisible Injury: where two parties by their separate and independent acts of negligence (neither acting in concert nor concurrently) cause a single, indivisible injury, each party is responsible for the entire injury. o P can choose whom to recover from; comparative fault doesnt get rid of joint and several liability.

New & Hybrid Schemes

CO abolishes JSL for personal injury, limited to conspiracy and concert of action.

NJ hybrid: JSL in indivisible harms cases, but only as against those tortfeasors whose percentage responsibility reaches or surpasses a certain threshold (60%)

There is no connection between the finding of joint-several liability in this case of indivisible harm. Cant distinguish who contributed what to the injury pro rata is a function of the number of the defendants of the case - Mechanical just need to know how many parties there are

Phantom Tortfeasors:
Bencivenga v. J.J.A.M.M., Inc. (p.521) cannot attribute fault to unknown parties Man is attacked in a club after talking to a girl unknown assailants Rule: fault of a fictitious person may not be considered when apportioning negligence among parties to the lawsuit; allocate only among known Ds. o Nightclub had to pay everything here! incentive to tell truth

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Most cannot be assigned fault. BUT, Indiana they must be named, so without JSL plaintiff cannot collect on portion of liability assigned to a non-party. Blazovic v. Andrich o Jury must compare fault of intentional tortfeasors to negligent wrongdoers for the purpose of apportioning liability under statute. COMPARE ALL PARTIES

Martignetti v. Haigh Farr - Pro Rata Determination of Liability Adopting federal environmental statute that imposed liability for cost of cleaning up toxic wast sites among parties repsonsable for creating the site - Facts: P, d1, d2 responsible, d2 jusgment proof, p and d1 share csot of missing % Should Immune Tortfeasor calculated for liability? + : Dotson v.Blake - : Ridings v. Raplh Acting Independently (or conspiring) Ds alternative theory: independent and successive a. Initial tortfeasor may well be liable to plaintiff for entire damage proximately resulting from his own wrongful acts, including aggravation of injuries by a successive tortfeasor b. The successive tortfeasor is liable only for the separate injury or the aggravation his conduct caused Ds Argument: Independent and successive - initial tort-fearsor is liable to the plaintiff for the entire damage proximately resulting from his own wrongful acts, including aggravation of injures by a successive tort-feasor - successive tort-feasor is liable only or the separate injury or aggravation his conduct conaused

Comparative Responsibility: Damages Between Tortfeasors - Restitution: Applies the apportionment number jury gave at trial Contribution: D who is made to pay more than his share of liability that is jointly owed by another can bring a claim against the other party in Contribution action between the Defendants - D1 goes against D2 to indemnification o (different than redress) ex: employment suit for respondent superior we are coming after you

Indemnification o Indemnity 100% shifting of liability (complete reimbursement)

Most commonly applied under vicarious liability

Indemnification: allows tortfeasor to look to insurance (contract) liability policy o First-party costs: promise to pay costs incurred directly by one or more of the insured

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Third-party costs: promise to pay costs incurred by some person other than the insured (liability insurance) o Duty to Defend: promise to pay for and manage defense of the underlying lawsuit by which injured party attempts to establish insureds liability o Process: P sues D, then D must make claim under their policy. Duty to Indemnify: o 1. Who counts as insured under policy? o 2. Define occurrence and exclusion what gives rise to indemnify? o 3. Types of liabilities from occurrence which there is coverage? o 4. Set the dollar-amount ceiling for liabilities AND deductibles Coverage clauses are broadly construed in favor of insured/exclusion clauses viewed strictly against the insured

Interinsurance Exch. of the Automobile Club v. Flores (p.527) no insurance for willful/intentional acts Intentional drive-by shooting Interinsurance wants to know if they are liable? Rule: negligent/reckless/careless acts are usually covered by insurance, intentional/willful acts are not (followed by majority of states) Getting to the $$ Judgment Proof D: If the tortfeasor lacks available assets by which to satisfy the judgment the tort victim might be out of luck Natural persons and entities can limit access to their assets by placing control of some of their assets with others Bankruptcy: companies that are forced into bankruptcy from mass torts pay off secured debts before unsecured debts (liabilities), which means there may not be money left to pay off tort plaintiffs.

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Intentional Torts P suing for one of these torts is complaining D acted for purpose of causing harm or to interfere with property rights Battery Prima Facie Case o 1. A Acts o 2. Intending to cause a contact with P of a type that is harmful or offensive; and o 3. As act causes such a contact. o Actor A is subject to liability to other person P for battery if: (1) A acts voluntary act, (2) intending to cause a. harmful or offensive contact, or b. apprehension of such harmful or offensive contact (3) harmful or offensive contact results (4) As act caused the harmful or offensive contact (5) P didnt consent to contact

Harmful/Offensive Contact Touching with person need not be with their actual skin; zone around them
Indirect: shooting with bullet, dog bite, smoking in face, poison gas, etc. Subjective standard to determine what is harmful Objective standard to determine what is offensive (subway touch is not!) Violates prevailing social standards of acceptable touchings.

Intent: actor desires to cause the consequences of his act, or that he believes that the consequences are substantially certain to result from it. Intent to touch standard: does not require a plaintiff to establish that the defendant intended the particular injury. Intent element requires judges and juries to determine mental state of tortfeasor. Cecarelli v. Maher (p. 552) harmful touching Guy beat up after dance by group of people Rule: Battery, can also recover for PAIN AND SUFFERING. Paul v. Holbrook (p.553) offensive touching Holbrook touched and massaged Paul and suggested sex while at work. Rule: Holbrook intended to touch in an offensive way battery.

Beach v. Hancock: must be a reasonable fear Facts: Argument, one guy pulls a gun, unbeknownst to the other guy it was unloaded, and snaps gun in an angry and threatening manner Rule: subjective intent to cause apprehension of causing injury doesnt matter as long as there is reasonable fear. D: The gun wasnt even loaded (subjective). P: I had a reasonable fear (Objective)
Nelson v. Carroll (p.558) intent to cause contact, consequences of accident irrelevant Carroll intended to whip P with a gun; instead the gun went off, shot P.

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Rule: Accidental consequences are not important because the initial intent of a harmful contact existed here.

Wagner v. State (p.566) mentally disabled persons can be liable for battery Wagner holds that a deranged person with a diagnosed, severe mental illness is capable of forming the requisite intent to commit battery. Giese, mentally disabled, attacked Wagner in line. Giese was under the custody of the state. State wants to use sovereign immunity, which applies to battery. Rule: Mentally disabled person only has to intend to cause contact in Utah, not necessary for the actor to realize that act is harmful or offensive.

Facts: P was injured when mental patient of state agency attacked her. P is trying to sue state under negligence and D is trying to claim its battery (D is immune from liability for injures proximately caused by intentional wrongdoings.) - P argues that mental patient could not have intended to cause her harm. Rule: In order to constitute a battery, the contact must have been deliberate. Also, the contact must have been offensive or harmful at law. - Court decides that 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 legal test for what is harmful or offensive.) Spivey v. Battaglia (p.576) well-known exception to intent to touch standard Co-worker grabbed others neck, causing paralysis even when he knew they were shy and didnt welcome contact. Rule: No battery because there was no intent to cause partial paralysis. save case *Court wrongly assumed intent to cause offensive but result in harmful is not battery.

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Assault Unloaded gun pointed at someone is an assalt Prima Facie Case o 1. A acts, o 2. Intending to cause in P the apprehension of an imminent harmful or offensive contact with P, and o 3. As act causes P reasonably to apprehend such a contact. o Actor A is subject to liability to other person P for assault if: (1) A acts, (2) causes in P the apprehension (if P doesnt act, contact will occur soon) of: a. an imminent harmful contact with P, or b. an imminent contact with P that is offensive; and (3) A intended to cause either harmful or offensive contact or apprehension of such contact (4) Theres a causal connection between As act and Ps apprehension

Apprehension must be reasonable objectively - You expect it, you do not have to be afraid, you do not have to be intimidated - Apparent ability is all that is necessary to create a reasonable apprehension o Context: Tone of voice, gestures, physical circumstances, relationship (or lack of), differentials of size/gender Words can undo conduct!!! Words alone are not enough to constitute assault, must include something else o Conditional/Future Threats: cannot be grounds for assault, lack imminence. o Must evaluate whether a threat is reasonably perceived as imminent objectively. Co-venturers: aiding and abetting assault is possible

Beach v. Hancock (p. 579) reasonable fear constitutes assault Argument, one guys pulls out a gun and points it (ends up gun was not loaded) Rule: Subjective intent to cause apprehension of causing injury doesnt matter as long as there is reasonable fear in person being assaulted Brooker v. Silverthorne (p.580) no assault for conditional threat or mere words Telephone operator claims someone yelled at her over the phone, ED follows. Rule: No assault if threat is for the future. Mere words are not assault. (IIED??) o Exception: Lipman v. R. Co. because of common carrier relationship Vetter v. Morgan (p.583) words constitute assault + other circumstances/acts Vetter was in can, Morgan and friends in car. They act in a threatening manner by yelling, spitting, and when the light changed they forced her into an accident. Rule: Words plus other circumstances are assault if put person in reasonable apprehension of imminent harmful or offensive contact with person. o Circumstances of nighttime and being a woman alone. Morgan was being threatening so his words of taking her from van could be taken seriously. Phelps v. Bross aiding and abetting assault Two guys drive Budweiser girl to house. One gives her beer with drug and rapes her, she wakes up naked with other whose house it is. Rule: No aiding and abetting battery, but assault is reasonable because of fear of imminent harmful/offensive contact when she awoke.

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Defense to Battery and Assualt Consent

Consent - s willingness for the conduct to occur Express Implied-in-fact where makes an objective manifestation that reasonably interprets as consent applies regardless of s subjective intent Implied-in-law consent is implied if (a) is unable to consent; (b) a reasonable person would consent in the circumstances; and (c) theres no indication that would not consent if able to Consent is ineffective when: (1) obtained through duress; (2) obtained through fraud; (3) didnt have the capacity to consent; (4) the act exceeded the scope of consent; (5) in some jurisdictions, the consent was to a criminal act o

Burden of Proof: P must prove absence of consent (many states have this rule) P cannot prevail on tort claim because they agreed, under appropriate conditions, to endure a bodily contact, or an apprehension of contact, or a confinement, that would otherwise be tortious. o Question if the contact in question is the kind that P consented to! Apparent applied consent - Custom and usage - Plaintiffs conduct Look for: Has defendant exceeded the boundaries of the consent give? Express Consent Issue will always be scope, usually through waiver/document o Scope of permission: ex: Dr. can only operate on part of body consented, unless there is a medical emergency Implied Consent Ds perspective, was Ps permission giving up right reasonably and genuinely perceived?

The issue of implied consent often requires judges and juries to make judgments turning on factors such as the age, gender, and sophistication of the parties, their relationship, if any, and various other circumstances associated with their interaction. *Courts have typically barred the imposition of liability on D only if, on the basis of Ps conduct, D actually and reasonably believed that P has consented to the contact. A reasonable but mistaken inference of consent that derives from a source other than the conduct of P will not suffice to establish a consent defense. *Battery rejects Ds defense of consent that he committed battery for Ps best interests. *A tortfeasor cannot benefit from the consent defense if he secures the victims consent by misrepresentation or other forms of deceit. In certain instances, the injurer may owe the victim an affirmative duty to disclose information relevant to the victims decision to consent, such that failure to disclose will constitute.

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*Consent secured through coercion by the tortfeasor will not count as a defense for battery, nor will consent received from someone who lacks the ability or judgment to give meaningful consent and a reasonable person in the position of the tortfeasor would perceive this lack of capacity. o

If P manifests objective appearance of consent, even if not the subjective desire of P, still implied consent socially acceptable/reasonable method Ex: foreign woman waiting in line for flu shot, claiming no desire Ex: participation in a contact sport consent to battery to an extent Exceptions: go against public policy or secured via misrepresentation or deceit o 1. Victim lacks ability or judgment necessary to give meaningful consent o 2. A reasonable person in the position of the tortfeasor would perceive lack of capacity. Ex: sex with step-daughter, claiming she wanted it o Coercion: fear of being fired, so have sex with boss o Deceit: pretending drink is wine, but it has poison in it

Koffman v. Garnett (p. 588) scope of consent Coach tackled player in drill, first time physical contact happened, broke arm Rule: no consent existed by being tackled by large coach

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Self-Defense and Defense of Others Privilege to use force against another to defend oneself, protect bodily integrity
Requirements: - Timing: The tort that you are defending is now occurring or just about to occur if it is already happened there is NO DEFENSE. - Victim must actually and reasonably believe that injuring another is necessary to avoid imminent injuries to their self. 1) Reasonableness of perception of threat is judged in light of circumstances o Did they exceed boundaries of privilege? 1. Reasonable perception, 2. Proportional response to perceived threat o Self- defense entitles you to use reasonable force to prevent threatened harmful/offensive contact or confinement; the issue is whether your response was reasonable in light of the perceived threat to you Amount of force allowed only what reasonable appears necessary to protect yourself against the threat Deadly force can be used only if you reasonably believe that the other person is about to kill you or seriously injure you Effect of provocation you arent privileged to use self-defense to respond to mere verbal threats but if the words are accompanied by a physical act threatening imminent physical violence, you are entitled to self-defense Duty to retreat before you use force you dont have to retreat under any circumstances Limits on self-defense you cant use excessive force, and you cant use selfdefense as a retaliation; that is, you cant use self-defense once the danger has passed Effect of mistake youre allowed to make reasonable mistakes Effect of injuring others when you injure someone other than your attacker, youre liable to anyone you intentionally injure for unintentional injuries youre only liable if you were negligent Defense of others used to protect third parties who are threatened with any kind of immediate harm Majority rule: in defending others, you may not rely on a reasonable mistake, if youre mistaken about the right to use force, youll be liable for your actions

There is NO DUTY to retreat - Exception: Before you use serious force and you can do it safely and are not in your own home Deadly Force: Can only use when actually and reasonably perceives imminent injury that could cause them death or serious bodily injury. Safe Retreat: If you think you can retreat safely from situation that would require deadly force, then you are not justified in using deadly force. Dwelling Response: No one should be forced to retreat from own home! o If you are threatened with deadly force outside, go inside; o If you are threatened with deadly force inside, use proportional force

Haeussler v. De Loretto (p.599) - non-lethal force privileged to protect from harm Guy was really mad about dog, goes to neighbors and finds dog, starts screaming. Neighbor hits him/pushes him and closes door. Did it after hands waved, threat? Rule: Right to use necessary force to protect when an imminent threat perceived. Rule: One who is involved in an altercation with another has the right to use such force as is necessary to protect himself from bodily injury, and the question of the amount of force justifiable under the circumstances of a particular case is one for the trier of fact. *The defense of self-defense typically applies when the injury consists of physical harm, inappropriate touching, or confinement.

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Defense and Recapture of Property Must be an inhabitant structure Defense: o Property owner present: may take physical measures reasonable in relation to threat o Property owner absent: scope of measures is reduced may not use deadly force and may not do something he couldnt if present
o Defense of land/chattels privileged to use force as long as: The intrusion isnt privileged You reasonably believe force is necessary to prevent or terminate the intrusion You demand that the intruder desist before you use force [dont have to make this demand if it appears that it would be dangerous or futile] You use only as much force as appears to be reasonably necessary to protect the property May never use deadly force just to protect property only if the invasion is coupled with a reasonable fear of grievous bodily harm You may not expel an intruder so as to put him in a position of unreasonable physical danger Recapture of chattels you may use reasonable, non-deadly force to get your property back as long as: You are in fact entitled to immediate possession of the property; Youve already made a demand for its return youve acted promptly, under all the circumstances; and the person whos got your property is one whos at fault

Force: can use force NEVER TO INCLUDE force that will CAUSE SERIOUS BODILY INJURY Recapture: Force can be used to recapture chattel only if it is proportionate and can be implemented without an escalation. - No privilege to use lethal force Katko v. Briney (p.603) cannot use deadly force for trespass to protect property Trespassers are shot by shotgun trap in a bedroom of abandoned barn Rule: Unreasonable act because there must be a threat of bodily harm, not property, to use deadly force to protect. Value of human life trumps land interest. Dissent: Unclean Hands: Ps action as criminal should be considered

Rule: Property owners are allowed to use force to defend their property but excessive force, including force calculated to cause death or great bodily harm, to protect their property is ONLY allowed in cases where human life is in danger. All jurisdictions recognize that you cant use lethal force to protect only PROPERTY. *If an owner were to evict a person who is not entitled to occupy land yet who enjoys peaceable possession of it, the owner runs the risk of criminal penalty and in some instances tort liability even if the force is deemed reasonable. (aim of law is to discourage self-help and encourage owners to apply to the courts for relief) *While the owner or possessor of a chattel thus enjoys a qualified privilege to recapture it, the privilege does not protect the owner who mistakenly seizes property that is not actually hers.

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False Imprisonment I. Elements of False Imprisonment ~ Ps ability to move jeopardized Prima Facie Case: 1) A acts (without authority of law and without consent of P); 2) Intending to confine P; 3) As act causes P to be confined; and

4) P is aware of her confinement

o Actor A is subject to liability to other person P for false imprisonment if: (1) A acts, (2) As act confined P to a bounded area (can be achieved by duress, threat) (3) A intended to confine P; (4) As act caused P to be confined; and (5) P was aware of her confinement while it occurred or was actually harmed by it

Needed - Act of restraint must be sufficient (can be an omition) - Must be in a bounded area - Access to egress must be known and reasonable o

False arrest wrongful confinement under color of legal authority; P must prove: A asserted the legal authority to detain P; P believed that A had the authority to detain him; That P submitted to As authority against his will; That A in fact lacked legal authority for the detention
Damages: Loss of time; Physical discomfort and inconvenience; Physical illnesses resulting from confinement; Mental suffering; Humiliation; Nominal damages; Punitive damages

Confinement: tortfeasor causes victim to be within a bounded physical space, which does not have to be stationary. o P must prove D acted with purpose or knowledge that they would be confined. o P must prove they were aware if sleeping entire time, not enough! o Objectively reasonable belief they are not free to leave o Can occur even when departure is not prevented attempt could pose risk But, if they can leave with minimal risk, not confinement Habeas Corpus force authorities to produce evidence, absent = release! Damages: nominal absent a showing of compensable ones. Punitive is possible if you can prove malice or reckless indifference. Fojtik v. Charter Med. Corp. (p.627) P must prove a just fear of injury for FI P was admitted to facility for alcoholism treatment, but allowed to leave sometimes. Consented to admission, he would also return voluntarily. Rule: P must show just fear of injury to recover. His subjective analysis of being locked up is not relevant to objective standard. o Threats here were not relevant, take into consideration his size! Court Test: In determining whether such threats are sufficient to overcome the plaintiffs free will, factors such as the relative size, age, experience, sex and physical demeanor of the participants may be considered

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Under the circumstances, a combination of Ps vulnerability and oppressive circumstances permit recovery, even when P doesnt actually resist their detention R: None of the factors that are considered in evaluating whether threats are sufficient to overcome Ps free will are apparent. He is a 45 year old man who runs several businesses.

Ds Arg (summary judgment evidence): Fojtik was free to leave at any time. Although they used a system of passes and had procedures, if a patient insisted on leaving without following the Charter procedures, Charter would permit the patient to leave. Ps Arg: Although P wasnt physically restrained, he alleges he was detained against his will by threats that, if he didnt submit to his detention, he would be forcibly committed and brought in handcuffs Court: This issue is not Fojtiks subjective interpretation of the situation, but rather whether he had a just fear of injury.

Transferred Intent & Unintended Consequences Knowledge: subjective standard Whether actor knows his actions will cause such contact Satisfying intent: proof that D knew act would cause a harmful or offensive touching is sufficient but not necessary to satisfy the intent element. Ex: Bad at darts, wants to hit P and somehow does. He had intent. Unintended Consequences Unintended Consequences: D didnt intend to cause the harm, but did intend to cause the contact Doctrine of Transferred Intent: When D intended one consequence but ends up with another intent, intent is transferred to the actual consequence. Doesnt matter if D intended a different result. Eggshell Skull rule: Wrongdoer is liable for all injuries resulting directly from the wrongful act, regardless of if they could or couldnt have been foreseen. Vosburg v. Putney (p.610) Eggshell Skull Rule D kicked P on the leg below the knee, ends up becoming inflamed badly. Rule: It doesnt matter that D did not intend for specific harm to result. o Also, it took place in school unlawful The wrongdoer is liable for all injuries resulting directly from the wrongful act, whether they could or could not have been foreseen by him. Cole v. Hibberd (p.613) Intentional Nature of Act is all that is important D kicked P as a joke, it was intentional hit but not to harm. Rule: This is battery/assault because harm doesnt matter, just intent of contact. Hibberd didnt act with an intention to cause harm. It is the intentional nature of the contact with the plaintiff that controls the definition, not the intent to cause actual harm or injury. The essential character of the complaint is grounded in intentional tort of assault and batter

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Reasonable minds can conclude that Hibberd intended to kick Cole. Hibberds contact would be considered offensive to a reasonable sense of personal dignity. It is irrelevant whether Hibberd intended to cause injury.

German Mut. Ins. Co. v. Yeager (p.619) no knowledge = negligence P threw bomb behind him so no one would get hurt, but shrapnel hurts friends. Rule: conduct was an instance of carelessness, not intentional wrong. Transferred Intent 1. Between identity of victims o injury someone other than the person you set out to injury, still battery 2. Between identity of intentional torts o Battery Assault Shoot at someone, aware of doom, and miss. o False Imprisonment Battery Try to imprison by slamming door, close it on their fingers o Property Battery Try to shoot dog, but hit the person instead In re White (p.621) transferred intent White and Tipton fought, White brought gun, Tipton drove away, White shot at him but hit Davis instead. Rule: One who intends a battery is liable for that batter when he unexpectedly hits a stranger instead of the intended victim not essential that the injury is the one that was originally intended.

Shopkeepers privilege: Elements (1) a reasonable belief a person has stolen or is attempting to steal, (2) detention for a reasonable time; and (3) detention in a reasonable manner
Shoplifters detention to investigate There must be reasonable grounds to suspect that the person detained actually took something; The detention must occur in the store or in its immediate vicinity; Only reasonable, non-deadly force can be used to detain the person; and The investigation must be conducted in a reasonable manner

A person who reasonably believes another person has stolen, or is attempting to steal property, is privileged to detain that person in a reasonable manner and for a reasonable time to investigate ownership of the property; Howwever, shopkeepers privilege is limited in its application to false imprisonment claims arising from investigative detentions. Grant v. Stop-N-Go Market of Texas, Inc. (p.636) shopkeepers privilege P was accused of stealing cigarettes; shop-owner kept him in the back and waited for police to arrive. D blames it on the police being slow. Rule: Shopkeepers Privilege, the detention must be reasonable, and here it was not. Also, they claimed that the tape was lost so no way to negate claim.

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Rule: The shopkeepers privilege allows D to temporarily detain P. A storeowner who reasonably believes that another person has stolen, or is attempting to steal, property is privileged to detain that person in a reasonable manner and for a reasonable period of time to investigate ownership.

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IIED ONLY INTENTIONAL TORT THAT REQUIRES DAMAGE. NEED SUSBSTANTIAL EMOTINOAL DISTRESS Used as a fall-back tourt if you cant make out any other intentional tort case

IIED Prima Facie Case (rarely succeed): o 1. Conduct that is extreme and outrageous (beyond all bounds of decency), o 2. Undertaken for the purpose of causing the victim emotional distress so severe that it could be expected to affect adversely his physical health (intentionally or recklessly) o 3. That causes such distress (even if that distress doesnt generate expected physical harm) Restatement defines distress as one so severe that no reasonable person should be expected to endure it

o o

Intentional or reckless infliction, by extreme and outrageous conduct, of severe emotional or mental distress, even in the absence of physical harm must show: (1) Act: extreme and outrageous conduct by (2) s intent to cause to suffer severe emotional distress (3) causal connection between the wrongful conduct and the emotional distress (4) Physical harm isnt required, but the emotional harm must be severe Where intentionally directs conduct at V and someone else ends up suffering great distress, can recover for IIED against if: was present during the outrageous conduct; is closely related to V; and knew of s presence, and knew that distress to was substantially certain to result from s conduct (or recklessly disregarded the high likelihood that would suffer such distress) Extensions: is liable if he should have known (but didnt in fact know) that was present; and is liable even though was not closely related to V, if suffered bodily harm

*IIED cannot be transferred with the other torts (if you intended to cause IIED and ended up causing battery, probably not liable for battery, most likely negligence. Attempted IIED does not translate to assault) Extreme/Outrageous Standard: Law/Mix of Law and Fact - SUBJECTIVE o Restatement: what community would say outrageous! to o Compare to inappropriate, offensive, careless dont qualify Cause/Proof Standard: show severe emotion distress via effect on life Recklessness: as to the risk of causing the victim severe emotional distress (as opposed to intending such distress or knowing to a near certainty that such distress will occur) o Failure to heed a very obvious and very significant risk of serious injury Directed At: not a requirement for all IIED, thus allowing 3rd party recovery. Defenses: traditional ones, but practically render the prima facie moot.

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Time-Frame: Future threats are actionable, compare with assaults imminence

Dickens v. Puryear (p.650) future threats are actionable as IIED Dickens had sex, drugs, etc with 17 year old. Her dad and friends lured him somewhere and beat the shit about of him, threatened to kill him if he didnt leave Rule: Threats for the future are actionable as IIED claims. o D is liable when they are certain, or substantially certain that severe emotional distress will result from their conduct. Ps Arg: Ds intentionally inflicted mental distress. P suffered severe and permanent mental and emotional distress and physical injury to his nerves and nervous system. He is also unable to effectively perform his job. Ds Arg: This is just assault and battery D is liable for this tort when he desires to inflict severe emotional distress or knows that such distress is certain or substantially certain, to result from his conduct or where he acts recklessly in a deliberate disregard of a high degree of probability that the emotional distress will follow (Restatement 46) o He can sue for the future threat. The threat was not one of imminent, or immediate harm. It was a threat for the future intended and did inflict serious mental distress Littlefield v. McGuffy (p.655) threats must be accompanied by aggravating factors Racist landlord refused to rent to Littlefield after finding her childs father was black, harassed her via mail continuously after Rule: Threats must be accompanied by aggravating factors like racial discrimination o No physical manifestation of emotional distress needed for IIED

165 Mulberry Street Corp. v. Columbia University (p.669) Subjectivity for outrageousness University study continuously sending complaints to restaurants, ruin businesses Rule: IIED because actual emotional distress, campaign of harassment Court: Based on libel claims: making a claim of food poisoning could impact the success of the enterprise and even destroy its viability as a business in such a competitive trade. Once a restaurants reputation is tainted its hard to undo the damage. The possibility of a forced closing of a restaurant could lead to physical and emotional damage

Rule: Court allows IIED claim to proceed to be decided by jury because it depends on highly subjective barometers of what constitutes offensive/outrageous behavior.

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NIED NIED are duty issues Emotiona distress caused by conduct that is unreasonable because of the risk it poses to the emotional well-being of others; bodys response to fear D failed to be sufficiently vigilant of Ps emotional well-being o all persons are under an obligation to take reasonable care not to conduct themselves in a manner that physically endangers another so as to distress that other by placing her in fear of imminent bodily harm 3 limiting tests of NIED policy based so we dont open floodgates Physical Impact: a P seeking damages for NIED must have sustained a physical impact or injury due to Ds conduct ABANDONED! Zone of Danger: limits recovery for NIED to people who sustained physical impact OR had NIED within immediate area of physical danger generally followed, subjective test of the zone o Does not require special relationship Bystander: Permits recovery by relatives of a physical-injury victim when they are physically there and watch it happen. o Requires special relationship
Recovery Most jurisdictions recognize a negligence action for P who suffers physical harms as a result of having been placed in imminent physical peril by anothers carelessness. Many now permit recovery so long as the emotional trauma of being endangered generates in P observable nontransient physical symptoms, such as nervous behavior or sleeplessness, what today might be deemed PTSD.

Duty: Impact, Zone of Danger, Bystander IMPACT RULE: A P seeking damages for emotional injury stemming from a negligent act must have contemporaneously suffered a physical impact, no matter how slight, or injury due to Ds conduct Wyman v. Leavitt (p.700) BAD LAW! ~ Physical Impact Test P lived next door to D who blasted rocks, caused property damage, emotional injury to wife because she was worried for her life/of kids. DUTY ISSUE Rule: Cannot recover for NIED in absence of physical contact BAD LAW Rule: P is not allowed to recover for emotional distress that is not parasitic upon physical injury. Fright of sufficient severity to cause a physical disease would support an action Zone of Danger ZONE OF DANGER RULE: impact doesnt have to happen when breach of duty occurs. If P is close enough to negligent conduct or at risk of physical injury even though there was no physical impact until afterwards, P can recover because D owes duty of care to people within the area of risk created by the conduct not to cause emotional distress from being imminently endangered. Robb v. Pennsylvania R.R. Co. (p.701) ZONE OF DANGER Car stalls and gets stuck on RR crossing, P flees as train approaches. Physical problems from ED (stopped lactating, etc) failed impact test Rule: Zone of Danger satisfied by immediate area of physical danger AND emotional distress has to produce physical consequences.

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Consolidated Rail Corp. v. Gottshall (p.705) Zone of Danger ~ FELA claims Gottshall worked in heat and humidity, co-worker passed out and died and he had to keep working Carlisle suffered nervous breakdown from stress at job. Rule: Only Gottshall can go to trial, Carlisle cannot because stress is not within zone of danger and there is no risk of personal injury. o Within Zone of Danger, Aware of danger, & physical consequences (too, but this prong is controversial) o GENUINENESS and FORESEEABILITY must be examined for NIED Bystander Claims Liability to certain person who witness another being injured or killed by the carelessness of the defendant. Parent cannot bring loss of consortium action against D for carelessly injuring child so as to deprive parent of childs companionship and support. Waube v. Warrington (p.731) bystander must have feared for own life for ED Mom watched from window as car ran over her daughter Rule: Wisconsin law holds that there must be a fear of danger to own life. Rule: Emotional distress grounded on negligent conduct must be occasioned by fear for personal injury to themselves, not injury to property or of third person. The court relied on Palsgraff to say that there was no duty owed to P not to impose emotional distress. Dillon v. Legg (p.734) bystander rule zone of danger not necessary ! Mom watched daughter get hit by car, sister standing next to her NIED claims for both Rule: o 1) P located near scene of accident? o 2) Shock resulted from direct emotional impact upon plaintiff from sensory and contemporaneous observance of accident in comparison to learning about it from others? o 3) P and victim closely related? o *Indicates degree of Ds foreseeability Thing v. La Chusa (p.741) Bystander Rule limit: those at the scene only Mom sued for NIED, but only heard about it from other child, then went to see Rule: limit recovery to those who observed the injury-producing event because it is unavoidable that relatives will all suffer ED one way or another. o Refine Dillon Test: 1. Closely related to the victim 2. Present at the scene of the injury-producing event and was aware that it caused injury 3. suffers serious emotional distressa reaction beyond that which would be anticipated in a disinterested witness. Ochoa v. Superior Court Came before Thing, decided opposite of that case Mother allowed to recover for NIED when she knew hospital was taking bad care of son and his condition was deteriorating and he eventually died. o Aware of causal connection between conduct and harm

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Undertakings to Be Vigilant of Anothers Emotional Well-Being When a contract relationship is deemed to support tort duties of care, a P may be able to recover on a claim for NIED o Ex: funeral home workers Beul v. Asse Intl., Inc. (p.722) special relationship: exchange student company rep. Foreign exchange student has sex with host dad, he ends up killing himself. She gets so upset when he dies because she loved him, etc. Rule: D has a duty to be vigilant of Ps emotional well-being. o Sebok: doesnt think duty exists under Rules, but shocked conscious Rule: Part of Ds duty was to protect P from sexual hanky-panky, and because they were standing in the role of her parents, they owed her a duty to exercise the kind of care that any parent would to protect child from sexual pitfalls. Therefore, D owed P a duty to look out for her emotional well-being and breached that duty by failing to protect her from foreseeable harms.

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Property Torts Strict Liability: liability may attach without the P fulfilling the breach element of prima facie case; liability without proof of fault

Brown v. Kendall (p.760) no recovery for pure accident; no liability without fault Two mens dogs fighting, one went to hit the dog, but hit person in eye with stick Rule: P cannot recover for an injury that is completely accidental; P has the burden of proof to show fault, negligence, etc of D. Rule: An accident victim cannot recover from a person who played a role in bringing about the accident unless the person caused the accident by failing to exercise reasonable care and the accident victim was not careless himself. N.Y. Central R.R. Co. v. White (p.767) LIABILITY WITHOUT FAULT!!! Wife brings suit against RR for husbands death and recovers workmens comp. Rule: Strict liability applies and does not disregard due process of 14th amend. Trespass to Land STRICT LIABILITY -- Requires a physical touching Look for: Failure to leave Trespass involves a tangible invasion by an actor of property possessed by another, whether by the actor herself, or by other persons, animals, mechanized devices, or natural or artificial substances for which the actor is responsible. Intent: It is immaterial whether the actor who causes such an invasion took reasonable care to prevent it, thought he had consent, or thought it was his land. ONLY Matters: whether the actor set out to make contact with the property in question, and whether the actor did in fact make such contact. No requirement of harm to property or loss of economic value (P can be awarded nominal damages and) Restatement: trespass strictly liable and can be committed on, beneath, or above the surface of the earth Trespass can occur by inactions as well as actions. (failure to leave) P must own or be in lawful possession of land trespassed on In order to bring claim: P must own the property or otherwise is lawfully in possession of the land trespassed upon (has been stretched to members of the owners household).

Prima Facie Case: Trespass to Land Intentionally undertaken invasion (occupy space) of the property of another must prove that: o committed a voluntary act; o That physically invaded s exclusive possessory interest in real property w/o s consent; o That intended the invasion; o That had the immediate right to possession of the land Defenses: o Consent o Necessity NOT Defense: o Mistake intent refers to intent to act, not intent to trespass Excuse o Only way to get out of trespass: did not intend to move into that space!!!

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 Ie: Non-human contributor wind blows you onto land Trespass vs. Battery (although they share the same consent defense): - in battery, D intends a harmful or offensive contact with P. In trespass, the only thing you have to show is that D intended to enter property that in fact did not belong to him. Burns Philp Food, Inc. v. Cavalea Contl Freight, Inc. (p.774) intent to invade space Parcel of land issue, one paid taxes for other, Cavalea sued for trespass fence? Rule: Strict liability: It is irrelevant if they were given notice or not, and it is also irrelevant whether or not they reasonably thought the land belonged to them. no implied consent because they didnt know about land; intent is to invade someones space, doesnt matter if they intended trespass because it is Burns land regardless! Strict Liability Rule: Trespass is a strict liability tort. It is irrelevant whether P was given notice or not, and it is also irrelevant whether they reasonably believed that land belonged to them. In trespass, the only thing P has to show is that D intended to enter onto property that does not belong to him. R: Where failure to protest might imply consent, P built its fence under a claim of right. They didnt seek an express license and did not obtain an implied one. It doesnt assert that principles of adverse possession entitle it to maintain the fence. Trespass is a strict liability tort and an obligation to notify the intruder is inconsistent with the idea of strict liability. *While the act must have been intentionally undertaken, there need not be any intention to do harm to the plaintiff or to invade property that the actor knows to be owned or possessed by someone else, just as there need not be any unreasonable conduct. Nonharmful trespasses do not generate a significant compensatory award but might generate substantial punitive Kopka v. Bell Tel. Co. (p.780) liable for all personal injuries proximate and indirect Contractor dug holes for Bell without permission, Kopka injured foot. Rule: Recover from both because Bell authorized it.

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Defense to Trespass: NECESSITY You are permitted in intentionally trespassing when circumstances create conditions that allow a person to interfere with anothers interest to aid themselves/maintain your own o Does not give P the right to the property, just the right to enter Limitation: IF YOU ARE WRONG, YOU ARE LIABLE Privilege to trespass, NOT to consume.
o Necessity Public necessity involves actions taken to avert a public disaster Complete privilege not liable for any damage to property Private necessity action taken to protect any person from death or serious harm, or to protect specific land or chattels from injury Reasonable mistake doesnt negate the privilege; youre liable for any damage to property

Assertion of privilege to act, even though prima facie case exists. o Justification to claim that one was entitled to engage in the conduct, notwithstanding its apparent wrongfulness D has burden of pleading Defenses Comparative fault has no place in intentional torts! Necessity - Not seeking protection from P but from some natural event or third person o E.g. breaking into car to save self from storm - Public necessity o Protect community o Complete defense - Private necessity o Protect private interest, i.e. docking in anothers dock to save boat and causing damage to dock o Incomplete privilege Only property can be injured/appropriated Cant hurt someone else to save self You can get damages for the physical damage - Defenses of necessity limited to: o Risk of death o Serious bodily harm o Loss of substantial property Ploof v. Putnam (p.783) trespass by necessity D owned a dock and had servant undo Ps boat in storm, destroying boat Rule: Privilege of necessity is superior to privilege of self-defense of property Vincent v. Lake Erie Trans. Co. (p.784) necessity, but creates a liability to P damage D docked boat in storm and didnt leave, ruined Ps dock. Rule: It is ok that D used property for purpose of preserving its own more valuable property, but P is entitled for damage to the dock only! Rule: Even though D acted reasonably, this was not an act of God where he had no choice whatsoever. He chose to stay moored, and he must pay to repair the dock even though he didnt do anything wrong. Theres privilege to trespass but not privilege of conversion. D prudently and

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advisedly availed itself of Ps property for the purpose of preserving its own more valuable property, and Ps are entitled to compensation for the injury done. R: Where D prudently and advisedly availed itself of Ps property for the purpose of preserving its own more valuable property, P is entitled to compensation. It cant be claimed, no matter how justifiable such act may have been, that because of the overwhelming necessity of the situation, the owner of the cable cant recover its value. *You have the incomplete privilege of trespassing onto someones property in the event of necessity but its an incomplete privilege because you are obligated to compensate them for any damages that flow from the trespass. Failure to Leave or Remove Trespass committed by means of inaction: Failure to leave when the consent has been withdrawn, or its duration has expired Failure to remove an object even if the initial placement was not tortuous Rogers v. Barod of Road Commissioners P permitted to bring trespass action for death of husband which occurred when he collided with a snow fence erected by county on their property: P gave consent for the fence remaining on the property had terminated at the end of the winter season Defense to Trespass: CONSENT Sometimes a states trespass law will require plaintiffs to prove absence of consent as part of their prima facie case., but in most jurisdictions, the burden remains on the defendant to prove that the plaintiff permitted him to enter the property Like in contracts, consent is interpreted to best represent objective meaning of the speakers words Express or Implied consent Assuming consent has been granted explicitly/implicitly, it immunizes only those trespassers that fall within the scope of consent, either geographically or temporally Consent can also be limited to purposes for which entry has been authorized SCOPE

Trespass and Damages Damages for Trespass (do not have to be proven in order to prevail) Nominal o (even if he cant prove actual damages) Parasitic Damages o Trespasser responsible for all personal injuries caused by his trespass whether proximate or direct Injunctiono Damages most common, but may obtain court order to stop ongoing trespass Punitive - If D proven to have acted willfully, with malice, or with reckless disregard for Ps rights No harmful trespass that does not generate compensatory aware may generate substantial punitive damages although only if the Ds trespass is found to be willful, malicious or committed with reckless disregard for Ps rights

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Jacque v. Steenberg Homes - Unsuccessfully obtaining permission to drive large truck carrying mobile come across Ps farm. D did so anyway Jury awarded P nominal compensatory damages of $1, but a lso $100,00 in punitive damages

Private landowners should feel confident that wrongdoers who tresspass upon their land will be punished They are less liely to restort to self-help remedies. Beavers v. West Penn Power Co D is strictly liable for all personal injured casused by trespass proximate or indirect 10 year old boy was killed when he came ito contact with Ds power lines. P sued in tesspass that the erection of power lines above Ps home regardless of whether the lines had been negligently constructed or maintained. Court may or may not grant injunctive relief to move a trespass depending on harships faced by Defendant Brink v Summers order removed of permit trespasser structure notwithstanding the hardship such an order will impose Hanson v. Estell - Refusal to order relocation of a been that encroached slightly on claimants property in light of negligible harm caused by encroachments

Granberry v. Jones Self-help- cut down shrub Homeowner who had long permitted the D to hedge to encroach onto his property I entitled to trim so much of the hedge that is on his property, but may not recover for famafes allefedly caused to his house Runs the risk of being found to have acted unreasonably in destroying or easing an object or structure that trespass on property

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Trespass to Chattel o o Intentionally interfering with personal property in someone elses possession must show: took voluntary act that interfered with s right of possession in the chattel intended to perform the act that brought about this interference That either possessed the chattel or had the immediate right to possess it If the act is merely an intermeddling, must show actual damages if the act is dispossession actual damages dont have to be proven; the mere taking of possession is considered sufficient damage

Trespass to Chattel: o Addresses lesser interferences with the rights of owners to use and enjoy their goods, including acts that damage tangible property or deprive the rightful owner of the property for a limited period. Intent: to interfere with Ps personal property, doesnt matter if the intent was to anothers property.

Thyroff v. Nationwide Mut. Ins. Co. (p.791) physicality of property doesnt matter! P wants to get his personal records back from computer owned by D. Rule: Intangible data is subject to the act of conversion, despite no physicality. Rule: Electronic data, which can be converted to tangible object (merger doctrine), can be considered tangible property for conversion purposes. *Modern courts have allowed the reach of conversion law by permitted actions for exercises of dominion over intangibles such as electricity, negotiable instruments, shares of stock, and even intellectual property. Conversion Conversion: intentional act of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel

Prima Facie Case o Intentional interference with the s personal property that is so substantial that its fair to require the to pay the propertys full value More serious then trespass to chattels o must prove: That substantially interfered with s right of possession in personal property, in a sufficiently serious fashion as to justify ordering to pay the propertys full value [ has to assert dominion and control over the object] That intended to perform the interfering act [mistake is not a defense] That was either in possession of the chattel or had the immediate right to possess it

Conversion in Restatement:

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o o

Conversion is an intentional act of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel. Deprives the owner of the propertys usefulness or economic value

CONSENT MEDIA TRESPASS & OTHER DEFENSES Express/Implied Consent Burden of Proof: o Sometimes Ps must prove absence of consent as part of their prima facie case. o Most jurisdictions, D must prove P permitted him to enter property. Scope: consent only covers trespasses that fall within scope of consent o Also, limited by reference to the purposes for which entry was authorized. Making a mistake (Burns Philp) is not a valid excuse, BUT it can be if they trespass because they reasonably but mistakably believe permission was induced by conduct of possessor. KNOWINGLY AND VOLUNTARILY medical malpractice requires standard Copeland v. Hubbard Broadcasting, Inc. (p.799) Consent only to what is authorized Vet comes to house with student; people consent to it. Student films event. Rule: Consent cannot be implied through silence alone, and can be geographically and/or temporally restricted. Rule: Consent may be implied from the conduct of the parties but silence alone will not support an inference of consent. Consent may be geographically or temporally restricted Rule 2: The scope of consent can be exceeded by change of the trespassers purpose even though the entrant remains within the geographic limits of the consent Consent must be given knowingly and voluntarily Rule: The scope of consent can be exceeded even though the entrant remains within the geographic limits of the consent but it requires a knowing and voluntary consent in order to have privilege to come onto property. *Consent immunizes only those trespasses that fall within the scope of consent, either spatially or temporally. Consent to enter may be limited by reference to the purposes for which entry has been authorized. Capacity of consent to operate as a defense will depend on the communicative context in which the content is signaled (reasonable mistake as to whether a particular patch of land is owned by another is not excuse for trespass but if conduct of possessor of land induces D to enter and D mistakenly believes that its an invitation, thats immunization from trespass).

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Nuisance Step 1: Is there a nuisance? Step 2: Should there be injunctive relief? The injunction does not issue as a matter of absolute or unqualified right but is subject to the discretion of the court Standard for issuance of injunctive relief: The court may refuse an injunction in certain cases where the hardship caused to the defendant by the injunction could greatly outweigh the benefit resulting to the plaintiff. What is the social utility of Ds conduct?

Nuisance: continuing and unreasonable interference with the use and enjoyment of property that occurs even absent invasion necessary for trespass (usually a factual dispute about interference) Nuisance v. Negligence: Unreasonableness is not necessarily the Ds conduct (as it is in negligence) but the nature of the interference with the Ps use and enjoyment of their property that must be unreasonable. Damages: usually in the form of an injunction Private: Civil wrong based on disturbance of rights in land Public: species of catch-all criminal offense interference with community rights o Sometimes individual can bring claim if they were injured by nuisance in a way that distinguishes them from general population (still bring private) Defense: Consent to nuisance, but doesnt bar you from changing your mind Public Nuisance Public nuisance when it interferes with the public health, safety or welfare Public: species of catch-all criminal offense interference with community rights Sometimes individual can bring claim if they were injured by nuisance in a way that distinguishes them from general population (still bring private) Private Nuisance

Private nuisance when it interferes with owners possessory or beneficial interest in the use or quiet enjoyment of land. Claimant: seeks to enjoin and obtain redress for an interference with use and enjoyment of her property The complainant in private nuisance neednt own the property; he need only be a lawful occupant or the holder of one or more other use rights

Sturges v Bridgman Coming to the Nuisance is not a defense Nuisance must be considered not just by the thing itself but also in reference to the circumstances

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Nuisance vs. Trespass: Similarities Both involve interferences with an interest in land

Both require as a condition of actionability that the P have a possessory interest in the relevant property Neither requires proof of action damages or harm Both frequently involve requests for injunctive relief in addition to claims for damages Neither requires proof that the D acted for the purpose of interfering with someone elses property rights Neither requires that Ds conduct fall below the threshold of reasonableness

Differences N requires Ds conduct to have caused unreasonable interferences with anothers use and enjoyment and T exists even for trivial interferences with the right of exclusive control and possession Liability for T is more strict than Liability for N

In N Ds interest in pursuing the offending activity often enters into analysis of whether N exists Liability for T is more one-sided with little consideration to the value of the trespassory activity; damages difficult to get for N N requires continuing interferences while T will be satisfied by a one-time event T requires that the invasive act be an intentional use of the property while N does not

Sturges v. Bridgman (p.803) Nuisance must be considered within circumstances P is a doctor who built consulting room D had a loud motor! Rule: Nuisance must be considered not just by the thing itself but also in reference to the circumstances o Doctors uses are superior to confectioners uses here o Penland v. Redwood Sanitary Sewar Serv. Dist. (p.812) Balance harms D operates sewage related facilities near Ps home o Injunction: court must balance hardships, spread $1.5 million across all Factors to assess whether activities substantially and unreasonably interfere with the use and enjoyment of plaintiffs property: o The location of the claimed nuisance o The character of the neighborhood o The nature of the thing complained of o The frequency of the intrusion o The effect upon the plaintiffs enjoyment of life, health, and property Boomer v. Atlantic Cement Co. (p.819) injunction, but less sympathy for D D operates cement plant that annoys everyone around it. Options: 1) Injunction/Enjoin, 2)18 months to clean, 3)Damages to Ps Rule: Nuisance is a substantial and unreasonable interference. Awards damages unless D stops. Did this to avoid out of court settlement post-injunction that would have cost D a lot more. York v. Stallings standard for issuance of injunction

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The court may refuse an injunction in certain cases where the hardship caused to the defendant by the injunction could greatly outweigh the benefit resulting to the plaintiff

Policy Private vs. Public Nuisance Creation of Land Rights What is the best way to regulate usage of land? Public regulation vs. private nuisance law? Tort law = private nuisance law allows for transfers Public law does not allow/ envision creation / sale of private law model Winners and Losers - Recognition in which there is an activity where there is a loser (omission / commission) the private right of action is a way of creating wealth. If Defendant wins and they are not a nuisance, they can still be paid to do activity elsewhere (they have something of value which they can sell). if Plaintiff wins and has the right to enjoin the defendant, they have a property interest they can sell ( waiving the injunction). Calabresi and Melamed, using Coases analysis, used cases like Boomer to illustrate their claim that grants of injunctive relief (use of the property rule) are generally inadvisable when the class of potentially affected parties is large Issuance of injunctive relief can create significant impediments to negotiated settlements which in turn can prevent property from reaching its highest valued use Damages in law is about repairing an injury, equity is about using the power of the court to compel an actor to return something to its rightful owner or a state of affairs wherenit outgh to be - This could never be allowed in personal injury, why do we allow it if its the ability to enjoy land? No protection of security interest in land (equivalent to a forced sale), an injunction is away of rolling back the take now.

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Ultra Hazardus Activities (Strict Liability) Remmember: must prove proximate and but-for causation Activities that are so inherently dangerous that negligence standard insufficient o Strict liability regardless of reasonable care Defenses: o Assumption of risk: someone blasting on road, you ignore detour o Domestic animals: SL if owner knows of animals viciousness o Wild animals: SL even if possessor takes utmost care o Comparative fault: trend to start recognizing it...

Elements to consider: Is activity ultra hazardous? (R: 520) o 1) Existence of high degree of risk of harm to persons, lands, chattel of another o 2) Likelihood that harm that will result will be great o 3) Inability to eliminate risk by exercise of reasonable care Cannot make sense of element o 4) Extent to which the activity is not a matter of common usage BULLSHIT o 5) Inappropriateness of the activity to the place where it is carried on o 6) Extent to which its value to community is outweighed by dangerous attributes. Rylands v. Fletcher (p.825) unnatural activity requires no proof for SL D created underground reservoir. It flooded Ps property, ruining mine. Rule: If a person brings or accumulates on his land anything that, if it should escape, may cause damage to his neighbor, he does so at his own peril. If it does escape, and cause damage, he is responsible, however careful he may have been, and whatever precautions he may have taken to prevent the damage, for the natural consequences of its escape. *Not the same as Menlove because it wasnt hay that escaped, but fire* Rule: D is engaged in a non-natural use of land (the reservoir is not naturally there), and is thus subject to strict liability for damages to P.

Turner v. Big Lake Oil Co., 1937 Natural and non-natural have often become synonyms for usual and unusual. For example, in Texas, drilling below the ground and flooding it with salt water (to get oil) on property has been considered a natural use of land Klein v. Pyrodyne Corp. (p. 827) abnormally dangerous activity Fireworks show, something went wrong and people were injured. Pyrodyne (fireworks makers) was not careless Rule: Use Restatement 520 analysis, weight factors. SL! *D would want negligence because burden of proof would be on P that there was a breach, instead it is SL. o SL: all P has to show is that D engaged in ultrahazardous activity and it was cause-in-fact/proximate cause of injury. Turner v. Big Lake Oil Co. salt water is natural in TX because of commonness Mixes up the 4th prong (common usage) natural to see v. natural to occur o Not natural in the same sense as Rylands, but rule in Ds favor.

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Siegler v Kuhlman Gasoline truck fell on her head. Uncommon to have large amounts of gasoline on the road Common vs. uncommon is a troubled questioned activity There will always be the residual possibility of accidents. Reasonable care will not eliminate the risk of activities, all activity will produce accidents. The idea that this is the test for what is negligence vs. Strict Liability, everything would be a strict liability. Is ______ different than other normal activates? Because those latter activities the risk could supposedly be eliminated through reasonable care. Next question, what is the investment in the care? L is low P is very low B is extremely high

Negligence per se

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Products Liability Expulsion of fault from the tort system Reasoning: Manufacturers owe a consumer a particular demanding obligation to be vigilant of a products safety. The manufacturers are in the best position to take precautions and therefore should be given strong incentives to take such precautions. Also, manufacturers are the best able to spread the cost of liability. The responsibility for injury stems from marketing goods that cause injury regardless of negligence. The two ways of structuring the law (strict liability or res ipsa loquitur) end up with the same result so why not take the most direct structure/not worry about proving fault. Prima Facie Case 1) P suffered injury; 2) D sold a product; 3) D is a commercial seller of such products; 4) Product defective when sold to A; 5) Defect an actual and proximate cause of Ps injury. Causes of Action for Products Liability: o Privity no longer required after MacPherson o Negligence P could prove negligence manufacture/design; might require res ispa to prevail (emphasis on manufacturers duties of vigilance) o Misrepresentation misrepresentation of material fact about product results in injury - contract o Warranties express; implied warranty of merchantability; implied warranty of fitness for particular purpose o Strict Liability encompasses any claim that might be brought in negligence or warranty Basis for Products Liability claims: o Manufacturing defectdefect in 1 particular product (Tys comp) o Design defectdefect in whole line of products (Pinto) o Failure to warnnot warning about dangers of products

PRODUCTS LIABILITY Three theories: o Negligence manufacturers or retailers failure to use reasonable care in the design, manufacture, labeling or marketing of the product Privity doesnt matter as long as was a reasonably foreseeable Analysis differed depending on s place in the distribution channel Manufacturer Did use reasonable care in making the product? Retailer [NO DUTY TO INSPECT] only way the retailer is negligence is if: (1) he saw or should have seen from the outside of the package that something was wrong; or (2) he knew or should have known that this particular manufacturer was likely to be producing bad goods o Breach of warranty three types: express warranty, implied warranty of merchantability, and implied warranty of fitness for a particular purpose Misrepresentation is an offshoot of warranty, applicable to cases of inadequate labeling or false advertising Express warranty advertisement or labeling; picture or model Implied warranty when sold by a merchant, implied warranty that the goods are merchantable

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Goods are merchantable if they are fit for the ordinary purposes for which such goods are used Strict product liability imposed without regard to fault, for a defective and unreasonably dangerous product One engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect Requirements of product liability claim based on strict liability: Defect defective condition unreasonably dangerous to user/consumer or his property; Two tests: Consumer contemplation test dangerousness of the product is beyond the expectation of the reasonable consumer who is familiar with the characteristics of the product; OR Danger-utility test a product is defectively designed if its danger outweighs its utility, considering the feasibility of a less dangerous, alternative design Manufacturing defect product departs from its intended design Design defect foreseeable risks of harm posed by product could have been reduced/avoided by alternative Failure to adequately warn Control when it left the s control; Changes product must not undergo significant changes before it gets to the user; Business the seller must be in the business of selling the product; Causation damages must result from the defect; and No privity required duty extends to anyone foreseeably endangered by the product Manufacturer can be negligent b/c of: Manufacturing flaw; Failure to reasonably inspect; Negligent design; Failure to warn; Failure to take care to obtain quality components. Negligence Defenses: Contributory negligence and assumption of risk Strict liability Defenses: assumption of risk, abnormal misuse, failure to follow instructions Warranties: Merchantability goods must be fit for the ordinary purposes for which such goods are used Fitness for a particular purpose arises when seller knows of a particular purpose to which buyer intends to put goods, recommends a product for this use, and buyer relies on sellers skill and judgment in supplying goods for that purpose

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PRODUCTS LIABILITY (pg. 815) (not tested very heavily on this!!!)

PL is the most significant place where our country began adopting SL as the rule for accidents PL really isnt SL anymore rd o 3 builds negligence back in to PL its a mess of both neg and SL Property torts: concern for the consumers legitimate expectations for her physical safety Ultrahazardous activities: large-scale production sometimes poses unavoidable hazards Workers comp: modernist sense of the propriety of risk spreading and the concern for an uneven playing field between the individual and the large commercial enterprise McPherson v. Buickeliminated privity requirement

Escola v. Coca Cola Bottling Co. (pg. 817) res ipsa used for SL (Treynors concurrence stating SL) Facts: Duty on bottler to make appropriate tests before they are filled (infallible testing on the glass by manufacturer which is why they werent brought in the case) Rule: Res Ipsa Loquitur applies if: (1) D had exclusive control of the thing causing the injury and (2) the accident is of such a nature that it ordinarily wouldnt occur in the absence of negligence by the D Modern view of (1) is that D must have had control at time of alleged negligent act, but not necessarily at the time of the accident provided P proves due care between Ds control and the injury D Arg: How can she prove Treynors concurrence: - Manufacturers now incur an absolute liability when an article that he has placed on the market knowing that it is to be used without inspection, proves to have a defect that causes injury (he is worried about the fact that bottles can break in the absence of negligence) o Where there can be improvement in safety in an activity that can be achieved by the investment of resources. The hand test is right; we should only invest what is socially worthwhile. - suppose: car manufacture pays for accident Reduce the hazards to life and health inherent in defective products that reach the market: Even if no negligence, public policy demands responsibility be fixed wherever it will most effectively reduce the hazards to life and health risk of injury can be insured by the manufacturer still limited by causation! You can get just as much safety under SL as negligence if you were to use SL properly: - Negligence system is a poor way to operate a hand test. It is a poor way to put the cost of who is in a position to control the risk/ create safety on the party Marginal cost of safety: individual vs. marginal cost of the organization

Achieving social welfare through SL vs. Hand Test investment in safety vs. accidents permitted to occur Progressive optimists: Shift of wealth to achieve safety from manufactures to consumers:

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in parallel words they should both produce the same investment in safety, the only difference is distributional consequences (both have optional level in investment in safety) o Invest to the point where it is not notion o Negligence: - Victim pays o Strict Liability: - Defendant pays

Progressive pessimists - Psychology humans are accident prone. Can overcome the human irrationality to make the proper insurance choices through the tort system. o We wont invest in insurance, the tort system will force the manufacuter to pay it out to the person who get hits. Build insurance into the price of the massproduced item. - Insurance mdoel built into the economy to rationally ensure against accidents ( what people wont do for themselves) Its primary focus is the purchaser of the defendants projects. Not to put pressure on the manufacuture, but goal: to use manufacturer as a vehicle. o Does not attempt to induce defendants How much $ demand by everyone else to have a design chosen to have an optiminal level of safety (subjective). Perfectly run system of design defect people cant choose to purchase. - drive chosen risk of the market, trade off: (but-for the defect in the negligently manufactured/handled bottle there would be no injury; proximate risk created by D) SL arguments: manufacturer owes consumers high level of safety, is in the best position to take care, and is least cost avoider

Tmain why doesnt it matter that he is drunk driving In a reps ista case why cant you apply the hand test, She cant prove negligence for

Henningsen v. Bloomfield Motors, Inc. (pg. 824): Henningsens 10 day old car had defect and ended up crashing; sued dealer

Rule: the burden of losses consequent upon use of defective articles is borne by those who are in a position to either control the danger or make an equitable distribution of the losses when they do occur o Implied warranty of fitness runs with a product and passes through an intermediate seller to the ultimate consumer manufacturer and consumer were barred by law from agreeing to waive this implied warranty

1. The Emergence of Strict Products Liability

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GREENMAN v. YUBA POWER PRODS., INC. (pg. 826) SL for PL

Wood flies out of power tool and injures P, maybe because screws are too small; Sues both retailer and manufacturer for negligence and breach of exp and imp warranty (P read brochure that said how sturdy the product was) P won against manufacturer on both causes of action when talking about breach of warranty, not a breach of reasonable care, but if they breached their promise Duties consumer can expect: manufacturer create reasonable product; dealer inspect product (but this is hard to get because they wouldnt really know how to inspect) Applies Escola to make manufacturer SL Rule: a manufacturer is SL in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being o Purpose: to insure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured ppl who are powerless to protect themselves o Sufficient for P to prove that he was injured while using the product in a way it was intended to be used o Kind of like McPherson but notin the past two cases there didnt need to be showing for negligence as there was in McPherson

Vandermark v. Ford Motor Co.:

Rule: court extended Greenman applying defect-based liability to the retailer of a product Purpose: SL on the manufacturer and retailer alike affords maximum protection to the injured P and works no injustice to the Ds, for they can adjust the costs of such protection between them in the course of their continuing business relationship (therefore restriction of contractual liability doesnt matter)

Elmore v. American Motors Corp.: driver with defective drive shaft injured other P

The doctrine of SL may not be restricted on a theory of privity of K Rule: Bystanders should be entitled to greater protection than the consumer or user (because they cant notice defect) where injury to bystanders from the defect is reasonably foreseeable o Most jurisdictions that have addressed the Q as seen here have permitted bystanders to recover on PL

2. The Second and Third Restatements of Torts

Section 402A (pg. 832): set the basic terms for analysis in PL cases Restatement 2nd Torts 402A o 1. One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer if: a. The seller is engaged in the business of selling the product; and b. It is expected to and does reach the consumer or user without substantial change in the condition in which it was sold. o 2. The rule stated in Section (1) applies though: a. The seller has exercised all reasonable care in the preparation and sale of his product; and b. The user or consumer has not bought the product from or entered into any contract with the seller defective condition (comment i): one not contemplated by the ultimate consumer, which will be unreasonably dangerous to him o unreasonably dangerous: the article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics. o Cronin disagrees with Ps burden to prove unreasonably dangerous

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Many courts unsure whether to use all three conditions in conjunction most did not, some used two together; consumer expectation test was effectively done away with by 2000 402a has been superseded by restatement 3rd - not reasonably safe this is still controversial, though less than unreasonably dangerous o Courts dividedsome still take Greenman approach, others have moved away from that.

CRONIN v. J.B.E. OLSON CORP. (pg. 833) do not use restatements unreasonably dangerous

hasp broke on impact of car accident; sent the metal trays in the van (holding bread) and hit P in the back and out of the front of the truck (design defect because the aluminum used is used in all of their products) SL shouldnt be imposed on a manufacturer when injury results from a use of its product that is not reasonably foreseeable D argues that since Greenman, restatement says P must prove unreasonably dangerous court says this is too much of a burden Daubert standard used for expert witness testimony (to determine if the testimony is allowed) Rule: failure to discovery defects in the product is not a defense in SL o Seller should not be responsible for all injuries involving the use of its products, but it should be liable for all injuries proximately caused by any of its products which are adjudged defective o If the better hasps cost 18 cents, there is no reason that shouldnt have been put in o THIS WAS IGNORED IN MOST COURTS even Ca. used unreasonably dangerous language

Basics of a Products Liability Claim (pg. 840) Anyone who intends to use the product can bring a claim (products are tangible objects that are provided by consumers)

A cause of action for PL exists only if the product in question is defective and only if the defect that caused the injury was present in the product when sold or marketed by the D Issue of causation treated similarly to that in negligence; doctrine of superseding cause also recognized in PL P cannot recover in PL for injuries caused by a defective product and then again recover for the same injuries caused by the same product in negligence Seems that manufacturers are in the best place to foresee possible problems and to insure against them (ie: an employee working too quickly and not putting the guard back on) o Until now, breach question of unreasonableness was looked at through Hand Test, but to determine who should bear the cost here Calabresis cheapest cost avoider is the best bet o The new PL ended in a fight between cheapest cost avoider vs. reasonableness Injury: generally the owner of the product cannot recover for a defect that causes damage to, or destruction of, the product itself economic loss rule (East River S.S. Corp. v. Transamerica Delaval, Inc.) o Tangible property damage caused by a product defect to property other than the product itself is ordinarily actionable in products liability Product: Real property, human parts, live animals, textual materials, intangibles such as electricity and xraysbut they sometimes can be, also some jurisdictions exempt certain products like drugs and vaccines o Services are not products Seller: a person who sells a product doesnt automatically qualify as a seller of that product for purposes of PL; they also have to be in the business of selling (or marketing) such products o PL doesnt require the P to be a buyer of the product o It is enough to establish that an actor has sold a product if the actor took steps to place the product on the market, or figured in the distributional chain through which the product is placed on the market (ie: a co. cannot avoid PL law by leasing the product rather than selling it) o Ask whether the D placed the product in the stream of commerce Defect: three different kinds manufacturing defects, design defects, and warning defects o Manufacturing defects: if it diverges from the manufacturers own specifications for the product Will be charged to the manufacturer so long as it emerges while the product is in its control or possession STILL HANDLED UNDER STRICT LIABILITY o Design defects: there is a flaw in the plan or specifications for the product (group of people affected is larger than manufacturing defect) Factors that play a role: significance of the risks of physical injury posed by the particular design; how ordinary consumers would expect the product to function; and whether there is a feasible, safer, and affordable alternative design

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Classic case is the Ford Pinto case (Grimshaw) NOW HANDLED UNDER CONSUMER EXPECTATIONS TEST (seems like SL) or WADE TEST FOR UNREASONABLENESS (pg. 863 a fault based test) Failure to Warn or Instruct: product is defective for lack of adequate warnings when safety requires that the product be sold with a warning, but the product is sold without a warning (or without an adequate warning) The defect is the omission of the language the lack of teach of why the warning is there This seems much more like SL we dont blame you for not anticipating all injuries, but hold you liable for not doing so NOW HANDLED UNDER WADE TEST (pg. 863)

***Example: the army guys who had to change bulbs, got too hot and would be really dangerous so had to wait to switch them out; at some point, it was decided to not wait and ppl got injured; why was an interlock not introduced

GOWER v. SAVAGE ARMS, INC. (pg. 848)

Hunting rifle defect, P shot himself in the foot; P sues in 4 causes of action: manufacturing defect, warning defect, unloading defect (design defect) and detent defect (design defect) o Warning defect: SJ granted to D because P didnt prove causation (lethal propensity of a gun was known or should have been known) o Unloading defect not a cause but design defect not granted SJ According to 402a, Ps must show: (1) the product was defective, (2) the defect existed at the time the product left the manufacturers hands (generally Ps burden to prove this), and (3) that the defect caused the Ps injury For manufacturing defect, need to compare the product that caused the injury with other products that were manufactured according to specifications SJ denied Rule: Strict PL does not equal absolute liability despite several defects P could not recover because of causation and standards of evidence.

***Example: McDonalds case where old woman spilled and burned her privates

McDonalds knows that the degree of heat at which they make their coffee, they know that people will burn and injure themselves, but it maximizes welfare in many ways o many ppl need their coffee to stay hot for awhile o it also tastes better at this temperature reason maybe McDonald shouldnt pay: P easy to feel bad for truth is that every step of the way through coffee production people got hurt most of the time the cost of coffee gets transferred to us in fault, only a handful in lack of fault BUT why should we pay for someone elses accidents? Why should we pay for that old ladys accident?

A. Design Defect

consumer expectations test: a product is defective in design if aspects of its design render it more dangerous than an ordinary consumer would expect it to be (can compare it to a prototype in the mind of an ordinary consumer) risk-utility test: a product is defectively designed if the risks of its design outweigh its utility

i. Risk-Utility Test for Design Defect

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CEPEDA v. CUMBERLAND ENGG CO. (pg. 858) worker carelessness is not a barrier to recovery for PL adopts risk utility test

worker who working on a machine which lacks an interlock on the entrance for where the pieces of plastic go in and his hand could get caught P argued an interlock should have been on it defective design D argued that it followed general safety standards NOT a defense, just evidence of lack of product defect Contributory negligence of the P is not a defense when such negligence consists merely in a failure to discover the defect in the product or to guard against the possibility of its existence mere carelessness and inadvertence cannot be a defense to a SL action o Can use assumption of risk if the P voluntarily encountered a known danger Rule: foreseeability by D of the harmful character of the product is not a requisite to liability, but foreseeability (objective) of the kind of use (or misuse) of the product which occurred is a relevant factor will not let workers carelessness be a barrier to their recovery o P must show there was no abnormal use of the product o Restatements unreasonably dangerous remains applicable (pg. 863 7 factors of unreasonably dangers or cheapest cost avoider analysis really difficult to process these standards) o Manufacturers duty to avert foreseeable inadvertent injury to a user of a product (cheapest cost avoider)

B. Defenses

Comparative Fault o Assumption of Risk P has actual subjective knowledge of the danger and voluntarily encounters it o Misuse of Product of a substantial and foreseeable nature Statutes of Repose bars suit after specified time, even if harm occurs (is discovered) later

Keep pain and suffering in strict liability model, There are hard choices to be made when you pick among the things you do with a strict liability sytem. what goes into the set of SL activities? under Tort of Contract what kind of damages are you going to award under the system that you pay?

Wasr was one by those who thought benefi of society would happen in an increase of safety.

End Notes Expert Testimony Daubert Requirment

Toxic Tort Claims Establishing causation Proof: must provide that Ps individual illness is an instance of general causal linkage P: If the substance in question does not cause a signature illness that appears only in connection with exporse, P can establish the lilehood of general causal linkage between substance produced by D and illness D: Relevant Causal AgentsGeneric predisposition, exposure to other envioroment factors, personal health habits

Prempted causation Spose. V Ragu Foods

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V injured by actor A and B. A is still responsible. In awarding plaintiff damages for a partial disability caused by D1 tortious conduvt, the jury should not take into account the gact that P subsequently rendered totally disabled by third aprty liable for damanges flwoign from the initual injury to the lef for the expected duration of the Ps life Alternate Causation Conspiracy and concert of action aiding and abetting treats two torfeasors acting jointly there separate acts of carelessness are fused into a single corrdinated course of conduct

Alternative to Market Share Liability, even if P did not joing all manufactures in one suit, the burden of proof was on each D to disprove that its drug caused the injury

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