Popular in Torts
Popular in Law
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Date Created: 10/09/15
Table of Contents Table of Contents 1 Historial Development of Modern Tort Law 3 Intent 4 Intent Case Law 5 Battery 6 Battery Case Law 7 Assault 8 Assault Case Law 9 Intentional In iction of Emotional Distress 10 Trespass to Land 11 Nuisance 12 Trespass to Chattels 13 Conversion 14 Defenses to Intentional Torts Consent 15 Defenses to Intentional Torts Consent Case Law 16 Defenses to Intentional Torts Self Defense 17 Defenses to Intentional Torts Self Defense Case Law 18 Defenses to Intentional Torts Defense of Property 19 Defenses to Intentional Torts Defense of Property Case Law 20 MISCDefenses to Intentional Torts 21 MISCDefenses to Intentional Torts Case Law 22 NONDefenses to Intentional Torts 23 Negligence 24 Duty Standard of Care 26 Duty Standard of Care Case Law 27 Duty Foundational Duties amp Exceptions 28 Duty Special Situations 29 Duty Special Situations Case Law 30 DUTY Premises Liability 32 DUTY Premises Liability Owners and Occupiers of Land Case Law 34 Breach 36 The Hand Formula 37 BREACH Negligence Per Se 38 BREACH Negligence Per Se Case Law 40 BREACH Res Ipsa Loquitur 41 1 BREACH Res Ipsa Loquitur Case Law 43 Cause in Fact 44 Cause in Fact Case Law 46 Proximate Cause Foreseeability 48 Proximate Cause Case Law 50 Proximate Cause Intervening v Superseding Causes 52 Proximate Cause Intervening v Superseding Causes Case Law 53 Harm Negligent In iction of Emotional Distress 54 Harm Economic Harm 55 Expert Testimony Custom and Malpractice 56 Expert Testimony Custom and Malpractice Case Law 58 Liability 59 Vicarious Liability 60 Vicarious Liability Case Law 62 Strict Liability 63 Strict Liability Animals 64 Strict Liability Abnormally Dangerous Activities 65 Strict Liability Worker39s Compensation 66 Strict Liability Case Law 67 Products Liability Warranty 69 Product Liability Manufacturing Defect 70 Products Liability Design Defect 72 Product Liability Warning Defects 73 Products Liability Case Law 74 DEFENSES ContributoryComparative Negligence 76 DEFENSES ContributoryComparative Negligence Case Law 79 DEFENSES Assumption of Risk 80 DEFENSES Assumption of Risk Case Law 81 DAMAGES Indemnity 82 DAMAGES Joint and Several Liability 83 DAMAGES Contribution 84 DAMAGES Group Liability 85 DAMAGES 86 Historial Development of Modern Tort Law Aims of Tort Law 1 preventions of selfhelp 2 retribution against wrongdoers 3 deterrence of wrongdoers 4 compensation for the victims of wrongdoers this is what separates tort law from criminal law Forms of Action Trespass direct v Trespass on the case consequential Theoretical Structure of Tort Law and its Capacity to Expand Roberson v Rochester Folding Box Co p9 Rochester Box used Robertson s picture for advertising on their our container without her permission People recognized her and she sued for invasion of privacy and emotional distress First case to bring up invasion of privacy Court would not rule for P because there was no precedent to such and the court wouldn t start one now Dissent quotSociety conditions warrant extension of the lawquot Development of the Concept of Fault The Case of Thorns p26 D was cutting down thorns on his property which landed on P s property D damaged P s crops when he tried to retrieve the thorns A party is liable for tort trespass even when the damages are unintentional Scott v Shepherd p21 Shepherd has taken a squib recracker and throws it into a marketplace Lands on the table of Willis Willis picks it up and throws it to another table Ryal Ryal throws it and injures Scott Scott sues Shepherd Held that trespass would lie because it was causation over intent The act itself made D liable lf injury could be avoided by D s inaction then D is liable Weaver V Ward p26 2 soldiers Ward D accidently red his gun and injured Weaver P P brought an action of trespass of assault and battery against D Court held that trespass still held unless they could show absolute no fault on part of D Which in this case they couldn t so D held liable Circumstances are irrelevant If there is an injury you are responsible unless absolutely and completely without fault Big picture If you did it you are responsible Brown V Kendall p27 Brown P and Kendall D each had a dog and they started ghting D grabbed a stick and began to beat the dogs to get them apart During the beating P who was out of the range of the stick stepped forward the D backed up a few paces and when he swung the stick back it hit P in the eye P must show that D was committing an intentional tort and was acting negligently Shifted burden of proof on P D only had to use ordinary care Moves away from strict liability and into ordinary carefault based actions 3 Intent An actor intends his conduct if he desires the resulting consequences or is substantially certain that the consequence Will occur Generally the actor need not intend injury just intend to act Speci c Intent An actor s goal is to bring about the consequences General Intent An actor knows with substantial certainty that the consequences will result R3 Tortsl 1 Intent willful misconduct must be voluntary the person has the purpose of producing that consequence or knows to a substantial certainty that the consequence will ensue Substantial Certainty Test Injury is substantially certain to result from the act Limits on Substantial Certaintv Limited to particular victims or to a small class of potential victims within a localized area Cannot be substantially certain in an aggregate sense because you d be going about your life constantly worried about hurting others Minors and lncompetents Can Have Intent May be held liable for intentional torts Single v Dual Intent Rule Single Intent Rule Majority View Only need to show that the D had intent to actcontact not intend the harmfuloffensive consequences of that actcontact Dual Intent Rule Minority View Need to show that the D intended to BOTH cause the actcontact and for the actcontact to be harmful or offensive Transferred Intent Only applicable to intentional torts If a D held the necessary intent with respect to person A then he will be held to have committed an intentional tort against any other person who happens to be harmed by his act Applies where i Commits a different tort against the same person ii Commits same tort against a different person iii Commits a different tort against a different person b Intent can39t transfer from an object to a person if a person intends to hit a tree but accidentally hits a person intent doesn t transfer Original act must be a tort c Intent can transfer from a person to an object If a person intends to hit a person but accidentally hits another s property he may be liable for intentional damage to that property think conversion Intent Case Law Substantial Certaintv Test jackson v Brantley He was substantially certain that the horses would follow him on the road The intended the horses to follow him The actor need not intend the injury just the act Garratt V Dailey p3738 Boy pulled the chair out from under his aunt determined that he was substantially certain his aunt would try to sit where the chair had been Beauchamp v Dow Chemical Company p40 Plaintiff alleges that he was intentionally exposed to quotagent orangequot by Dow Court rules for P because it was substantially certain that Dow knew the dangers of working with agent orange and allowed him to be exposed anyway An intentional tort can be committed if the person had a substantial certainty that an intentional act would result in injury There need not be the intent to injure The problem with substantial certainty is that it is difficult to distinguish between substantial certainty and substantial risk The problem with the true intentional tort testintended the injury and the act is that it can allow employers to injure and even kill employees and suffer only workers39 compensation damages The court favors the substantial certainty test Until this case ALL employee injuries fell under workers comp now intentional torts can be brought up in court Single v Dual Intent Rule White Muniz p60 White39s grandmother was placed in a nursing home where she exhibited signs of dementia and aggressive behavior She battered Muniz The jury reasoned that she did not possess the necessary intent to commit battery did not satisfy the dual intent rule of CO did not appreciate the offensiveness of her contact Minority position It s possible to be so mentally ill that you are incapable of intending any harm or offense OR any action at all Transferred Intent Singer V Marx p56 D39s child threw a rock which struck the P and was witnessed by another child The evidence indicates that the child aimed at the witness but struck the P39s child and the doctrine of transferred intent renders him liable for battery An infant who forcibly invades the person of another is liable for a battery regardless of intent to in ict injury He need not appreciate the wrongful character of the act Only intent of the act is necessary however this is not the case with negligence must understand that his heedless conduct might foreseeably lead to some Injury Battery Battery is the 1 intentional 2 act of 3 causing 4 a harmful or offensive 5 contact 1 A has the necessary intent if 1 A acted with the purpose to cause a harmful or offensive bodily contact OR 2 A acted with the purpose to cause an imminent apprehension on l39l s part of a harmful or offensive bodily contact but actually cause contact instead OR if 3 A is substantially certain that the contact will result from his act 2 Voluntary act or movement by the defendant 3 Causation The act must directly or indirectly cause the contact Direct But for A s conduct P s injury would not have occurred Therefore causation is satis ed Indirect An actor is liable for all foreseeable consequences of his battery even if they are indirect 4 Harmful or Offensive If the contact causes pain or bodily damage it is harmful contact Thin Skull Rule provides that the actor is responsible for the resulting consequences of his battery even if the extent of the injury was not foreseeable If the contact is damaging to a reasonable sense of dignity it is offensive contact The law imposes no liability for a hypersensitive victim unless perhaps if the actor knew about the hypersensitive characteristic 5 Contact can be direct or indirect The victim does not need to have actual awareness of the contact at the time it occurs Contact includes skintoskin touching or touching of objects intimately associated with the victim s body Direct Contact is contact with something attached or closely related to a person s body or a projectile Indirect Contact includes when the A is not present at time of the contact Ex Mechanical Device Katko v Briney Other Factors lf l1 consents to a certain level of bodily contact but A goes beyond the consented to level of contact battery has occurred The consent has become invalid Defenses Consent SelfDefense Defense of Others Defense of Property Recapture of Chattels Battery Case Law Masters v Becker p44 D pried P39s ngers both children off of a tailgate which resulted in the P falling and sustaining severe injury No intent to injure yet there was intent to remove the girl and a battery The P does not have to prove the D intended to physically injure him or intended the injury that occurred Minors and incompetent can have intent Brzoska V Olson p47 Ps allege negligence battery and misrepresentation on behalf of their dentist now deceased who was knowingly infected with AIDS yet continued his dental practice P cannot recover for battery bc they could not show their alleged offense was reasonable in the absence of being actually exposed to a diseasecausing agent Touching in normal dentist circumstances is only offensive if it results in actual exposure to the HIV virus and court therefore adopts the quotactual exposurequot test Battery can be sued for when Ps learn about it after the fact think medical malpractice Ps need not be aware of it happening Assault Assault is the 1 intentional 2 act of 3 causing another 4 reasonable 5 apprehension of 6 imminent 7 harmful or offensive contact 1 A has the necessary intent if 1 A intends to put H in imminent apprehension of the harmful or offensive contact even if A does not intend to follow through with it OR 2 A intends to cause a harmful or offensive bodily contact if A intends to commit a battery but commits an assault 2 Voluntary act or movement by the defendant 3 Causation The act must cause the apprehension Words alone are not sufficient by themselves but must be accompanied by some overt act a physical act or gesture However surrounding circumstances may make it reasonable for H to interpret A words as creating the required apprehension alone 4 Reasonable The apprehension must be reasonable and is subject to the objective reasonable person test If an objective reasonable person would be put in apprehension in the victim s circumstance there is reasonable apprehension 5 Apprehension I39I must be aware of the danger before it happens I39I must apprehend contact with herself not contact with a loved one I39I need not necessarily be apprehensive of a battery 8 6 Imminent In n s mind the contact must be able to occur without significant delay not the next day A must have the present ability to carry out the threat 7 Harmful or Offensive If the contact causes pain or bodily damage it is harmful contact If the contact is damaging to a reasonable sense of dignity it is offensive contact Other Factors The assault must have an effect on H if H believes or knows that no imminent harmful or offensive contact will really occur it is not an assault Conditional Threat If A threatens the harm only if H does not obey A s demands it is only an assault if A did not have a legal right to compel performance Turns on the actsintent of A not the ability of n to defend self Defenses Consent SelfDefense Defense of Others Defense of Property Assault Case Law Dickens v Puryear p53 Plaintiff claims assault battery and the intentional in iction of mental distress Plaintiff was beaten and threatened with death of he did not leave NC According to R2 to qualify as assault the apprehension of imminent contact no signi cant delay should be distinguished from contact created in the future As noted by Prosser threats for the future never have fallen within the boundaries of assault Intentional In iction of Emotion Distress can be a threat that occurs in the future Intentional In iction of Emotional Distress Intentional in iction of emotional distress is the 1 intentional or reckless 2 act of 3 extreme or outrageous conduct 4 causing 5 severe emotional or mental distress even in the absence of physical harm 1 A has the necessary intent if 1 A desires to cause I39I emotional distress OR 2 A knows with substantial certainty that H will suffer emotional distress OR 3 A recklessly disregards the high probability that emotional distress will occur OR 1a Reckless A proceeds with a conscious disregard of the high probability that emotional distress will result 2 Voluntary act or movement by the defendant 3 Conduct is extreme or outrageous if A s conduct was beyond all possible bounds of decency Mere words are insuf cient 4 Causation The act andor circumstances together must cause the apprehension 5 Severe Emotional Distress I39I must show that it was severe enough that H sought medical aid Some courts require that the distress manifested physically Other Factors Transferred intent is limited for emotional distress torts If A attempts to cause emotional distress or commit some other tort to X and H suffers emotional distress I39I usually will notrecoven Exception Transferred intent is applied if A directs his conduct to a member of ITS immediate family H is present and I39I s presence is known to A Developed for when assault didn t apply because the threat was not imminent Punitive Damages are allowable where D s conduct was maliciously motivated Bystander Cases a P was present when the injury occurred to the other person b The P was a close relative of the injured person c The D knew that the P was present and a close relative of the injured person Defenses Consent 10 Trespass to Land Trespass to land is the 1 intentional 2 act 3 causing 4 interference with the owner39s 5 exclusive possession of his land 1 Intent The intent to make contact with the land is sufficient a Reasonable mistake is not an excuse b Accidental contact is excused unless there is actual damage c Intent is transferable if the tortfeasor intends to commit another tort and instead or additionally trespasses 2 Voluntary act or movement by the defendant 3 Causation Act must cause the interference 4 Interference occurs when a A intentionally enters I39I s land without permission b A remains on I39I s land without the right to be there even if A entered rightfully c A puts an object on or refuses to remove an object from I39I s land without permission includes particles or gases d A causes a 3rd party to enter the land unless 3rd party acted voluntarily 5 Exclusive possession of land refers to real property and permanent buildings a Airspace violations below the federal minimum altitude is likely trespass Defenses Recapture of chattels is privileged if dispossession was not through the fault of the owner If it was recapture is only privileged in order to prevent harm to others or to prevent harm to the chattel Insanity dual intent juris only ConsentImplied Consent Public Necessity Private Necessity 0 Self Defense 0 Defense of Others 0 Emergency 11 Nuisance Nuisance is the 1 intentional 2 act 3 causing 4 substantial and unreasonable 5 interference with the 6 owner39s quiet use and enjoyment of the land 1 Intent The intent to a voluntary act is sufficient for nuisance If no intent look for negligence 2 Act The act must be a voluntary act or movement by the A 3 Causation The act must cause the interference 4 Substantial and Unreasonable a Reasonableness Test balances harm to H against utility of A s conduct or if the harm to H is greater than H should be required to bear wo compensation i Type of neighborhood must be considered ii Nuisance can be public or private 5 Interference a nonphysical entry 6 Quiet use and Enjoyment refers to real property and permanent buildings a Airspace violations over the federal minimum altitude is likely nuisance Other Factors Transferable for nuisance if the tortfeasor intends to commit another tort and instead or additionally creates a nuisance Defenses Insanity Dual intent juris only PublicPrivate Necessity Emergency 12 Trespass to Chattels Trespass to chattels is the 1 intentional 2 act 3 causing 4 interference with a person39s 5 exclusive use or possession of a chattel resulting in 6 damages 1 Intent Intent to take or affect the chattel is sufficient for trespass to chattel a Mistake is not an excuse b Accidental contact with the chattel is excused unless there is actual damage c Intent is transferable for trespass to chattel if the tortfeasor intends another tort and instead or in addition trespasses as to the chattel 2 m must be a voluntary act or movement by the defendant 3 Causation The act must cause the interference 4 Interference Any physical interference with the chattel a Causing a 3rd party to interfere is trespass to chattel unless 3rd party acts voluntarily b Electronic interference depends on type of harm that occurs i If A s conduct does not harm I39I s computer or the data on it trespass to chattels does not occur ii If A s conduct does harm the computer or data on it trespass to chattels does occur 5 Exclusive Use or Possession refers to the actual owner s loss or injury of the chattel 6 Damages may include physical damages to the chattel or loss of the use of the chattel for a substantial period of time If the chattel is damaged or dispossessed the owner is entitled to have the chattel returned to him in addition to actual damages If the chattel is destroyed conversion Defenses Insanity dual intent juris only ConsentImplied Consent Public Necessity Private Necessity 0 Self Defense 0 Defense of Others 0 Emergency Recapture of Chattel is privileged if dispossession was not through the fault of the owner If it was recapture is only privileged in order to prevent harm to others or to prevent harm to the chattel 0 Can use force to recapture chattels hot pursuit Authorized under certain circumstances 13 Conversion Conversion is the 1 intentional 2 interference with l139s possession of ownership of 3 property that is so 4 substantial that A should be required to pay the property39s 5 full value 1 Intent intent to take possession or affect of the chattel a Mistake is not an excuse b Intent is transferable for conversion if the tortfeasor intends another tort and instead or in addition converts the chattel 2 Interference may include a Assertion of ownership and interference with owner s possession or other rights Acquiring possession illegally Transferring chattel to someone not entitled to it Withholding goods from the owner Destruction or alteration of the goods Use of the chattel to a substantial degree 990 3 Property includes tangible and intangible property 4 Substantial The factors that determine whether the interference is substantial include a Duration of exercise of dominion or control b Extent of the harm c Good or bad faith d Extent of inconvenience and expense 5 Full Value fair market value either the full price or diminution in value at the time the chattel was converted This is a forced sale so P does not get his property back unlike in Trespass to Chattel Defenses Consent Necess y 14 Defenses to Intentional Torts Consent Consent is determined by an objective analysis of what a reasonable person in A s position would have thought that H meant If H is mistaken about what he consented to there is still consent If A is mistaken it depends on how reasonable the mistake is Three Types of Consent 1 Express Consent If H expressly consents to an intentional interference with his person or property A will not be liable for that interference a Void if Obtained via 1 Fraud or 2 Duress 2 Implied Consent Consent may be implied from I39I s conduct from custom or from the circumstances a For implied consent objective manifestations decide the consent If it reasonably seemed to one in A s position that H consented consent exists regardless of ITS mindset 3 Consent as a Matter of Law Consent is implied as a matter of law if a H is unable to give consent AND b Immediate action is necessary to save I39I s life or health AND c There is no indication that H would not consent if able AND d A reasonable person would consent in the circumstances When is consent not a defense 1 Consent will be invalidated for lack of capacity if H is incapable of giving that consent because they are a child intoxicated unconscious etc 2 If A goes substantially beyond the scope of ITS consent A will not be privileged except for in the case of emergency 3 The majority of courts do not allow I39I s to consent to a criminal act against them 15 Defenses to Intentional Torts Consent Case Law Implied Consent Hellriegel V ThoII p73 A boy was in horseplay with his friends at a lake He invited them to try to throw him in and one of them slipped and fell on the P breaking his neck Boy39s parents sue alleging battery The boy impliedly consented to rough and tumble horseplay and also accepted the risk of accidental injuries sustained from the participation therein Additionally the invasion into the boy was consented to by his participation in the roughhousing D is not liable bc of implied consent Consent Implied as a Matter of Law Mulloy V Hop Sang p79 Man goes to a doctor and states that he does not want to have his hand amputated Doctor amputates hand The defendant did not understand what the doctor meant and therefore did not consent The doctor39s actions were deemed to be necessary regardless of consent Silence is not necessarily implied consent In emergency situations P39s consent will be presumed unless patient expressly states otherwise Now there are medical consent forms to be signed before most invasive procedures 16 Defenses to Intentional Torts Self Defense A person is entitled to use reasonable force to prevent any threatened harmful or offensive bodily contact and any threatened con nement or imprisonment When can selfdefense be used 1 When A reasonably believes that there is a real threat of harm even if there is not 2 When A uses only the force needed to protect himself a Force used in retaliation is not selfdefense 3 When the harm is imminent Can only use selfdefense for a harm that is not imminent if it reasonably appears that there will not be a later chance to prevent the danger 4 When the provocation is not purely verbal not just taunting or insults Degree of force allowed 1 The A can use only the degree of force necessary to prevent the threatened harm If A uses more force than necessary he will be liable for damage caused by the excess 2 Deadly force force intended or likely to cause death or serious bodily injury may only be used if in real danger of death or serious bodily harm or when a reasonable person would believe that real danger would exist Duty to Retreat 1 The 2ncl Restatement holds that A may use nondeadly force rather than retreating but A may not use deadly force in lieu of retreating except if attacked in his dwelling by one who does not reside in his dwelling Castle Doctrine Defense of Others A person may use reasonable force to defend another person against attack The person may only use reasonable force and may not use deadly force to repel a nondeadly attack 2nCI Restatement gives a quotreasonable mistakequot defense to the intervener Exceptions to the Right of Self Defense 1 Illegal Arrests Not an excuse for selfdefense The law provides a remedy for false imprisonment 2 quotThreats and insults do not in themselves ordinarily justify apprehension of immediate harmquot 3 You cannot claim selfdefense if you are the initial aggressor 4 You cannot chase someone after the tort is over and claim selfdefense 17 Defenses to Intentional Torts Self Defense Case Law Degree of Force Lane V Holloway p89 An elderly man punched a younger man after an argument The older man was severely injured In an ordinary ght with sts there is no cause of action to either of them for any injury suffered as each voluntarilv takes the risk of iniuries upon himself However one of the parties can sue the other for damages from a subsequent injury if it was in icted by a weapon or savage blow out of all proportion for the occasion unless he can prove accident or selfdefense excessive force will negate selfdefense Duty to Retreat Silas V Bowen p91 The plaintiff trespasser approached the armed defendant and put a hand on his shoulder with the other in his pocket The defendant then red the shotgun to scare him into the ground and struck the plaintiff in the foot Using deadly force allowed as he was in fear of an assault If conduct of another person is such as to produce in the mind of a reasonable person an apprehension of an intentional tort he may use reasonable non deadly force necessary for protection against the potential injury R2 63 No duty to retreat Proportionality of force to the threat is important 18 Defenses to Intentional Torts Defense of Property A person may generally use reasonable force to defend their property both land amp chattels The owner must rst make a verbal demand that the intruder stop unless it reasonably appears that violence or harm will occur immediately or the request will be useless Mistake If A is mistaken about whether the force is necessary A is protected by a reasonable mistake If A is mistaken about whether the intruder has a right to be there the owner s use of force will not be privileged Deadlv Force The owner may use deadly force only where nondeadly force will not suffice and the owner reasonably believes that without deadly force death or serious bodily harm will occur A homeowner is generally allowed to use deadlv force against a burglar provided that they reasonably believe that nothing short of the force will safely keep the burglar out Mechanical Devices An owner may use a mechanical device to protect their property only if they would be privileged to use a similar degree of force if they were present and acting themselves An owner s right to use a dangerous mechanical device will be measure by whether deadly force could have been used against that particular intruder Recapture of Chattels A property owner has the general right to use reasonable force to regain possession of chattels taken from them by someone else The privilege exists only if the property owner is in fresh pursuit acting without unreasonable delay the force used is reasonable and the property was taken wrongfully from the owner Deadly force can never be used to recapture chattels When a merchant reasonably believes that a person is stealing his property many courts give the merchant a privilege to temporarily detain the person for investigation The detention is limited to a short time just long enough to determine if the person was stealing 19 Defenses to Intentional Torts Defense of Property Case Law Defense of Property Brown V Martinez p97 Some boys were engaged in nighttime watermelon stealing escapades when the property owner defendant shot a ri e in a direction away from the eeing boys but striking another boy plaintiff whom the defendant did not see The defendant is liable for injuries caused due to transferred intent wanted to shoot the kids running away but instead shot the boy he didn t see 20 MISCDefenses to Intentional Torts Necessitsa A has a privilege to harm the property interest of H where it is necessary in order to prevent great harm to third persons or to the A themselves Public Necessity f interference with the land or chattels is necessary to prevent a disaster to the community or to many people the privilege is public necessity No compensation has to be paid by the person doing the damage a Public authorities have the right to destroy private property in emergency situations such as destroying buildings to prevent the spread of re b Plaintiff can recover the value of his property unless the state can show quotgreat public necessityquot Private Necessity If a person prevents injury to themselves or their property or to the person or property of a third person this is protected by the privilege of private necessity if there is no less damaging way of preventing the harm It will be a complete defense to a tort claim where H has suffered no actual substantial harm f actual damage occurs A must pay for the damage caused The person whose property might be injured may not resist and defeat the exercise of the privilege a To protect Human Life Private necessity to enter or utilize another s property exists and it strongest when it is done with the purpose to save or protect human life b To protect Property Entry upon land to save goods which are in danger of being lost or destroyed by water or re is not a trespass Arrest With warrant A police officer executing an arrest with a warrant that is correctly issued will not be liable even if it turns out that there was no probable cause or the procedures were not proper Without warrant A police officer or citizen may make a warrantless arrest for felony or for a breach of the peace if the offense is being committed or seems about to be 21 committed in his presence No warrantless arrest may be made for a past misdemeanor not involving a breach of the peace Force One making an arrest may not use more force than is reasonably necessary Deadly force may be used to prevent a felony which threatens human life or safety After the crime police may use deadly force only if the suspect poses a signi cant threat to others lustification Even if A s conduct does not fit into one of the narrower defenses they may be entitled to the general defense of justi cation Discipline Discipline is a sufficient defense as long as it is not out of proportion than what is necessary Relationship between parentchild or teacherstudent MISCDefenses to Intentional Torts Case Law Private Necessity Ploof V Putnam p108 Ploof plaintiff was boating when a violent wind endangered the property and family Ploof then moored his boat to Putnam39s dock defendant without permission There was a necessity for the plaintiff to moor his boat to the dock Defendant liable for damages for unmooring and destroying boat In the defense of private property a D can be liable for damage done to another s property that occurs though affirmative action to secure his own property Vincent V Lake Erie Transportation Co p 111 An impending violent storm was approaching so the defendant did not leave the dock The lines holding the boat broke and were subsequently replaced with larger and stronger lines As a result of the storm the boat crashed into the dock causing damage While there was necessity to remain moored to the dock the defendant is liable for any damages received regardless of cause 22 NONDefenses to Intentional Torts Contributory Negligence is nota defense to an intentional tort jackson v Brantley p36 Because of the D39s intentional conduct of bring the horses on the highway the animals were knowingly and willfully placed upon the highway and struck a vehicle and he was substantially certain from past experiences that the horses would be scared by headlights Court affirms the decision for the P Negligence is not necessary to prove only that he intended to bring the unbridled horses on the highway Mistake Doctrine Generally it is no defense that D mistakes even reasonably the identity of the property or person he acts upon or believes incorrectly that there is a pdeege NOTE Restatement allows for an exception to mistake in Defense of Others where the actor reasonably believes that the defended party has a right to selfdefense Insanity is not a defense unless D is unable to form the requisite intent 23 Negligence Negligence is the failure to meet the standard of care of a reasonably prudent person under the circumstances Prima Facie Case for negligence must show 1 duty 2 breach of that duty 3 cause in fact 4 proximate cause and 5 actual damage 1 DUTY A must have a legal duty requiring A to conduct themselves according to a certain standard so as to avoid unreasonable risk to others 2 BREACH OF DUTY A must have failed to conform their conduct to this standard 3 CAUSE IN FACT l39l must show that A s failure to act with reasonable care was the cause in fact of the injury to FL Without the cause the injury would not have occurred 4 PROXIMATE CAUSE l39l must show that there is a sufficiently close causal connection between A s act of negligence and the harm suffered by H to make it fair to hold A able as a matter of policy 5 ACTUAL DAMAGES l39l must have suffered an actual injury 24 Without all 5 of these elements A will be entitled to a directed verdict by the judge Holmes Negligence is the moral way to go the heart of the reasonable person is foresight The requirement of an act is the requirement that the defendant has to make a choice You must see the difference in probability of outcomes 25 Duty Standard of Care Normally a person owes everyone with whom he comes into contact with a general duty to behave with the care that would be shown by a reasonable person under the circumstances Limited Duty A person generally has no duty to take af rmative action to help another A person generally has no duty to avoid causing unintended mental suffering to another See Negligent ln iction of Emotional Distress A person generally has no duty to avoid causing pure economic loss to another if no physical injury occurs See Economic Harm Reasonable Man Standard A reasonable person is one who acts at all times with common sense reason and caution Variations on the Reasonable Man Standard Expert testimony is used to establish the standard of care in MedicalSpecialized Fields Physical Disability If A has a physical disability the standard is what a reasonable person with that physical disability would have done Children A child is held to the level of conduct of a reasonable person of that age intelligence and experience except for when engaging in a potentially dangerous activity normally pursued only by adults Emergency If A was confronted by an emergency by not fault of his own and had to act with little time for reflection A will not be held to the standard of a reasonable person with time to think 0 Instinctive Action Doctrine if a person must act instinctively to meet a sudden and urgent need this is an emergency situation and for motorists the reaction time limit is about ve seconds ExpertsProfessionals If A is an expert will be held to standard of care of a reasonable person with their expertise A reasonable person possess a limited ability to anticipate the conduct of others so A may be held to anticipate the possibility of negligence of others 0 However A does not have to anticipate crimes or intentional torts unless A has special knowledge of the situation Factors the Reasonable Man will not take on Mental Characteristics The reasonable person is not deemed to have the particular mental characteristics of A including intelligence Mental disabilitiesde ciencies are irrelevant Intoxication A drunk A will be held to the standard of a reasonable sober person Function of the Judge and the Jury 26 Holmes View Once enough cases have been decided for a given situation the standard of care is settled and judge may decide standard of care Effect Holmes would diminish the role of the Jury except where no standard of care has been formulated in which case the standard is determined by the jury in light of community standards Cardozo39s View Always allow juries to decide facts standard of care in each case except for some exceptions Effect empowers juries Duty Standard of Care Case Law Reasonable Person Standard of Care Vaughan v Menave p121 Defendant maintained a stack of hay near to his neighbor s wooden cottage He was repeatedly warned that it was a re risk but he ignored them The hay pile spontaneously caught on re and destroyed and consumed the cottages Hallmark case of negligence Did not act as a reasonable person in the situation Delair V McAdoo p126 Defendant39s vehicle struck plaintiff39s vehicle when the defendant39s tire blew out The tire was found to be quite worn and inadequate for road travel Defendant liable as the law requires drivers and owners of motor vehicles to know the condition of those parts which are likely to become dangerous where the aws or faults would be disclosed by a reasonable inspection Charbonneau v MacRury p 129 P39s son was struck and killed by the defendant39s automobile driven by his minor son age 17 A child is to be held to the standard of care of which he is capable not for int l torts Reasonable Person Standard for a Minor 6055 v Allen p137 A 17year old beginner skier struck the plaintiff while skiing in VT The defendant is to be held to the standard of care that a 17year old with his experience and background should have since skiing is not an adult only activity Children are held to the standard of a quotreasonable person of like age intelligence or experiencequot However some activities engaged in by minors are quotso potentially hazardous such as driving a car boat or hunting as to require that the minor be held to an adult standard of care Skiing on beginner slopes is not one of those activitiesquot Reasonable Peron Standard for Disabled Haley v London Electricity Board p145 A blind man fell into an excavated hole and as a result became deaf Liability as It is reasonably foreseeable that a blind person could happen to come across the excavation whilst walking down the street 27 R2 2833 mentally de cient adults are to be held to the reasonable adult standard in an action for negligence Diminished capacity may be taken into account for comparative negligence Reasonable Person Standard for Industry Custom United States v Carroll Towing Co p153 A group of barges with no employees on board broke loose from their moorings and struck a tanker resulting in the sinking of a barge carrying US owned our Barge owner was negligent in allowing the barge to be unattended during normal hours Reasonable Person Standard for Expert Barker v City of Philadelphia p149 Garbage truck driver tried to avoid the 639 x 239 around paper but actually ran over it and the boys which were playing inside subsequently killing one boy Also the driver was aware that something might be under the wrapping paper he thought bottles and that he also due to being a garbage man knew that this object was not the kind ordinarily encountered due to its position on the curbgutter Duty Foundational Duties amp Exceptions Duty has 5 general considerations 1 foreseeability 2 community notions of obligation 3 a broad sense of social policy 4 a commitment to the rule of law and 5 a concern for court s administrative capability and convenience Duty quotRisk Creation Rulequot An actor ordinarily has a duty to exercise reasonable care when the actor s conduct creates a risk of physical harm Exceptions to Duty When an articulated countervailing principle or policy warrants denying or limiting liability in a particular class of cases a court may decide that the defendant has no duty or that the ordinary duty of reasonable care requires modi cation Calabresi Dutv Rule Similar to the straightforward rule except duty is conditioned on the foreseeability of a risk of harm quotAn actor ordinarily has a duty to exercise reasonable care when the actor s conduct creates a foreseeable risk of physical harmquot or even quotforeseeability of injury to the particular plaintiff No Duty to Warn Protect or Rescue The fact that the actor realizes or should realize that action on his part is necessary for another s aid or protection does not of itself impose upon him to take such action Exception to the No Dutv Rule Affirmative Duties 2Where there is a preexisting special relationship 3Where the D voluntarily promised to aid or came to the aid of P 4Where the D created the risk from which P required aid 5Where the D had a special relationship to a third party that cause harm to P 6Where a statutory duty is found sufficient to justify the imposition of duty to P 28 Prosser quotDuty is simply an expression of the sum total of those considerations of public policy which lead the law to say that the particular plaintiff is entitled to protectionquot Misfeasance v Nonfeasance Misfeasance af rmative act An act which the actor as a reasonable man should recognize as involving an unreasonable risk of causing an invasion of an interest of another D39s duty automatic Nonfeasance no affirmative act but requires special relationship A failure to do an act which is necessary for the protection or assistance of another and which the actor is under a duty to do Price v E DuPont p 290 Husband of P brings home asbestos bers and as a result P becomes sick due to her exposure In order to recover for nonfeasance she must show a special relationship The allegations generate a reasonably inference that DuPont wrongfully failed to prevent or warn Mr Price is a nonfeasance There is no special relationship to P so no duty Duty Special Situations PreExisting Special Relationships Situations where there is some preexisting type of status relationship btwn the person in peril and the person upon whom one is attempting to impose an affirmative duty to help R2 314 Special Relationships that create duty to aidact 1 A common carrier is under a duty to its passengers to take reasonable ac on a to protect them against unreasonable risk of physical harm and b to give them rst aid after it knows or has reason to know that they are ill or injured and to care for them until they can be cared for by others 2 An innkeeper is under a similar duty to his guests 3 A possessor of land who holds it open to the public is under a similar duty to members of the public who enter in response to his invitation 4 One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal opportunities for protection is under a similar duty to the other parentchild Babysitter Schools jaHenp soner hospitalpatient employeeemployer When the D voluntarily promises to aid or comes to the aid of P Once one undertakes to aid another one is under an obligation to act reasonably in doing so 29 Liability if actor starts to help and then either increases the risk causes harm or interferes with potential rescuers RULE Once D voluntarily begins to render aid even if not previously obligated to do so D now has the duty to aidrescue NOTE If you do not exercise reasonable care in your assistance of P and you ultimately injure P or worsen P s injury you can be charged with negligence Good Samaritan Laws shield citizens against everything but willful and wanton negligence intentional harm Risk created by D s Actions Situations where obligation is imposed on someone who tortiously or innocently has placed the person in the situation of peril Duty to Others bc of Special Relationship with Third Party GENERAL RULE Do not have duty to control conduct of another But certain circumstances may give rise to a duty to act in order to protect a potential victim This could include therapistpatients counselorstudent situations Therapists RULE no general duty to warn of each threat to people made by his patient BUT If he determines that patient poses serious danger of violence to a particular person he DOES have duty to exercise reasonable care to protect foreseeable victim of that danger Statutory Duty Dram Shop Acts lmpose liability on business for serving alcohol to drunk people Duty Special Situations Case Law Special Relationship Grimes V Kennedy Krieger Institute p 299 A research institute created a research program where it required certain classes of homes to have various levels of lead paint abatement Researchers sought after families with young children They anticipated the children would get lead paint in their systems and used them like quotcanariesquot There was a consent form but avoided total disclosure D owed a duty of care based on the nature or the agreements and the relationship between the parties Given the gap of knowledge the participants cannot be solely responsible for their protection Volunteer Rescuer Farwell v Keaton p 308 P and D drank beer and followed girls to a drive in restaurant down the street Six boys chased them and P was severely beaten D drove P around for 2 hours and P fell asleep in the back of the car D tried to wake up P but was unsuccessful and the net morning took him to the hospital where he died There is a legal duty to avoid af rmative acts which may make the situation worse If a D attempts to aid they will be liable for a failure to 30 use reasonable care Here P and D were companions in a special undertakingsocial venture quotspecial relationshipquot and duty Dissent No legal authority cited for creating special duty Only a physician would have known further care was needed He wasn t in a worse position from when D began to help him Sanders agrees with dissent 1Duty not to increase the risk during rescue 2Duty based on promise to rescue 3nterference with rescue 4No duty to continue rescue D s Conduct Creates Risk Maldonado v Southern Paci c Transportation Co p 321 Four employees created a jerking and bumping when P tried to enter a train and he fell as a result If his act or an instrumentality within his control has in icted harm he has a duty to render aid even though he may not be at fault Special Relationship with Third Party Thompson v County of Alameda p 325 Mother of a deceased 5yr old boy P sues the County D for failing to warn when D released a juvenile offender who said that he would kill a young child if released Where the threat is against an amorphous group then there is no duty to warn impractical If the threat had been against a speci c individual then the county would have a duty to warn Role of Statute Uhr V East Green Central School District p 337 Statute requires schools to examine students for scoliosis annually P screened and the results negative She was no examined the next year She then tested positive at the point in which surgery was needed No statutory duty A private right of action is inconsistent with the statute s legislative scheme and therefor duty cannot be implied No Duty to Aid based on Public Policv Strauss v Belle Realty Co p 343 Failure in electricity company left most of NYC in darkness A tenant suffered personal injuries in a common area of an apartment building where the landlord but not he had a contractual relationship with the D Duty for injuries in such a situation should be limited to a contractual relationship as a matter of public policy 31 Graff v Beard p 349 P consumed alcohol at a party hosted by the D In route from the party P had a collision with a motorcycle quotDram shop lawsquot imposed on commercial providers under speci ed circumstances Court declines to impose a common law duty on a social host who makes alcohol available to an intoxicated guest who the host knows will be driving DUTY Premises Liability Owners and Occupiers of Land Common law premises liability extent of duty landowner owes to people on his land depends on status of person on the land trespasser licensee or in vitee Trespasser A visitor without permission to enter the property NO DUTY but must refrain from willful or wanton in iction of injury Owner is not required to make the land safe warn of the dangers on the land or avoid carrying on dangerous activities on it ie must refrain from active negligence and intentional injury Willful injury actual knowledge of danger combined w design purpose or intent to do wrong and in ict injury 32 Wanton injury act performed intentionally w a reckless indifference to the injuries likely to result Exceptions o Constant trespassers If the owner has reasons to know that a limited portion of the land is frequently used by trespassers the owner must make the premises safe or warn of dangers o Discovered trespassers If the owner knows of a particular trespasser the owner is then under a duty to exercise reasonable care for their safety 0 Children Attractive Nuisance Below Child Tresspasser amp Attractive Nuisance A possessor of land is subject to liability for physical harm to children trespassing on his land caused by an ARTIFICIAL condition upon the land if 1 The possessor knows or has reason to know that children are likely to trespass where the condition exists The condition poses an unreasonable risk of death or serious harm Children to not realize risk or discover condition because of their youth Utility of condition and burden of eliminating the risk is slight AND Possessor fails to exercise reasonable care to eliminate the danger An adult may claim attractive nuisance if seeking damages for injury incurred in an attempt to rescue the child from a danger caused by D s negngnce U39lhUUN Licensee a person with consent to enter but no business purpose Social guests DUTY OWED Owner owes duty to use reasonable case with respect to conditions about which the owner is aware as well as the duty to conduct risk creating activities with reasonable care Owner does not have a duty to inspect for unknown dangers NOTE does NOT apply if danger is obvious lnvitee visitors with permission to enter and whose visit the landowner or occupier has a quotmaterial interestquot OR visitors invited as a member of the public for the purpose of which the land is held open to the public DUTY TO WARN PROTECT AND RESCUE from dangerous conditions about which the landowner knows or should know as well as the duty to conduct risk creating activities with reasonable care Owes invitee affirmative duty to use ordinary care to inspect property for hidden dangers Landlords GENERAL RULE Lessor is not liable in tort once he transfers possession to the lessee Exceptions Hidden danger in the premises of which the landlord but not the tenant is aware Premises leased for public use Premises retained under the landlord s control such as common stairways Control Test Landlord can reasonably be expected to maintain property and guard against injuries only in common areas and other areas under his control 33 Premises negligently repaired by the landlord DUTY Premises Liability Owners and Occupiers of Land Case Law Trespasser Cochran V Burger King Corp p 470 34 Drunk guy cuts through Burger King to get to Hardees and decides to go through the Burger King dumpster by scaling a damaged wall He is a licensee before entering the dumpster and becomes a trespasser A possessor of land owes no duty to a trespasser to put the land in a reasonably safe condition Allows the owner to assume that members of the public will not interfere with those portions of the property as to which there is no implied invitation Child Trespasser Bennett v Stanley p 490 P5 wife and child drowned in D5 backyard pool child trespassed onto Ds property played by pool fell in mom tried to save it and drowned pool was pondlike frogs 6ft water sides slimy w algae It doesn t matter that the arti cial pond looked natural Subsequent rescuers are allowed to trespass if saving a kid from attractive nuisance and owed a duty of reasonable care HOLDING Child trespassers should have reasonable standard of care because young and curious lnv ee Posecai v WalMart Stores Inc p 497 Lady robbed at gunpoint in Sam s parking lot Rule businesses owe a duty to patrons to implement reasonable measures to protect their patrons from criminal acts when those acts are foreseeable However it depends on what test the court uses By using the balancing test the court determined only one robbery similar to this one had occurred in 9 years so there was no duty to provide security guards Exception NO CATEGORIES Some jurisdictions reject the categories of trespasser licensee and invitee and instead insist on a reasonable standard of care to be applied to everyone Nelson V Freeland p 478 D left a stick on his porch was negligent and P tripped on it was injured This court abolishes the distinctions between classes of persons on the owneroccupier39s land 35 Breach Breach a A who fails to act in accordance with the reasonable person standard of care has breached their duty to act reasonably under the circumstances When poor judgment is the reason for breach the standard is that of what a reasonable person would have done When lack of knowledge is the reason the standard is what a reasonable person knows or should know Breach can be calculated by balancing factors Hand Formula CostBene t Analysis Expert Testimony Utility Establish Breach Write this In this case A acted in a certain negligent way Therefore A was not acting as a reasonable type of person and has breached hisher duty Defenses Utility of the conduct outweighed risk AND there was no reasonable alternative Burden or cost of taking precautions outweighed the risk of injury Statutory Violation gt Negligence per se Negligence w no direct evidence gt Res lpsa Loquitur 36 The Hand Formula B ltPL The Owner s duty to prevent against injuries is a function of three variables 1 The probability of the kind of incident in question 2 the gravity of the resulting injury and 3 the burden of adequate precautions Unreasonable Risk of Harm The court will use a balancing test to determine if the risk is of such magnitude as to outweigh what the law regards as the utility of the act or the manner in which it is done There can be liability is a reasonable person would recognize that the potential injury would be extremely grave even if it is relatively unlikely Pitre v Employer s Liability Assurance Corp p159 A boy age 9 was struck in the temple and killed by another boy age 17 who was participating in a baseball throwing fair game The deceased boy was struck during the throwing motion while observing the game The probability of someone becoming injured was not so great as to render the operators negligent for failing to take measures to prevent it from happening Therefore the risk of foreseeable harm to others and the probability of an accident of this nature is outweighed by the utility of purpose for which the enterprise is conducted Just because something could happen doesn t mean that you have to take all precautions to prevent Bolton v Stone Cricket game balls hit out of the park onto the road where people would travel not unforeseeable 6 times in 28 years but no liability a reasonable man would have been justi ed in disregarding such a small risk and taking no steps to eliminate it However it does not follow that a reasonable man no matter the circumstances may ignore a risk of such a small magnitude only if he had some valid reason is this proper such as considerable expense to eliminate the risk Problems with the Hand Formula How do vou value the iniurv Richard Posner on Hand Formula Too economic in nature it in essence provides no means of condemning defendants for whom it was cheaper to pay tort judgments than take the burden of preventing accidents quotWhere the measures necessary to avert the accident would have consumed excessive resources there is no occasion to condemn the defendant for not having taken themquot Coase Theorem In a world with no transaction costs all parties would arrive at the most efficient solution regardless of liability However in the real world transaction costs are likely to be high the initial allocation of legal liability though the Hand formula becomes more critical 37 BREACH Negligence Per Se Negligence Per Se is the 1 unexcused violation of a 2 statutory duty designed to 3 protect a class of individuals and prevent a particular harm that 4 causes an injury Wil need to argue about the statute s purpose as well as who it is meant to protect Most courts apply it as giving a presumption of negligence ful lling duty and breach but a minority consider it evidence only of negligence P still needs to show causation and damages 1 Excused violation occurs when Actor lacks capacity to Comply minor Actor lacks the knowledge to comply impossible to have knowledge Actor is unable to comply because of the circumstances Actor violates statute in response to an emergency not of their own making e Compliance with statute posed greater risk than violation of it 2 Statutory Duty a When the statute added additional safeguards above that in the common law b Matters whether the statute is a rigid requirement or just a recommendation to be followed when reasonable 3 Particular harm a the injury must be of the type of injury the statute was designed to protect against and b the H was the type of personpart of the class of people the statute was trying to protect 4 Causation The violation of the statute must directly cause P s injury goom Defenses Contributory Negligence Defense unless statute imposes an absolute duty on A P s violation of a statute not necessarily contributory unless it meets requirements for negligence per se Comparative Negligence Reduces P s award Assumption of the Risk Generally bars recovery Other Factors Courts are split on whether to apply negligence per se to ordinances and regulations 38 Compliance with all applicable safety statutes does not itself establish that A was not negligence because the nder of fact may conclude that a reasonable person would take precautions beyond those required by statute Relationship Between Judge and Jury Cardozo Jury should still decide what quali es as reasonable behavior under the circumstances Holmes Make pigeon holes in the law where one may be guilty of negligence as a matter of law all the jury has to do is decide the facts of whether they were there whether they committed the action etc but the decision as to whether they are negligent will remain with the Judge 39 BREACH Negligence Per Se Case Law Negligence perse is a matter for law Martin V Herzog p 173 A motorist struck an unlighted buggy when rounding a curve at night killing one of the occupants of the buggy Liability it was incorrect to let the jury decide negligence for a violated statute Not applicable to licensing statutes or children Brown V Shyne p178 An unlicensed chiropractor allegedly paralyzed a woman who had visited the man nine times No liability the absence of a license does not alone provide a basis for inferring that the training learning skill and method was lacking Failure to obtain a license as required by law gives rise to no remedy if it has caused no injury Violation of administrative regulations is only evidence of negligence not negligence per se Excuse quotgood causequot to violate the statute Telda v EIIman p184 Plaintiff was injured while her brother was killed when they were struck while walking down a road at night by the defendant39s vehicle The statute says they must walk to the left of the center line No liability the pedestrians violation of the statute was not negligent and furthermore not a proximate cause of the accident observance of the statute would place them in greater danger Compliance boses greater risk than the violation Barnum V Williams p189 The plaintiff was traveling uphill in a motorcycle around a sharp curve near the center line in the rain The defendant was traveling downhill in a car near the center line as well and became apprehensive that a collision would occur when he saw the plaintiff The defendant applied the brakes and slid into the motorcycle injuring the plaintiff No liability there are exceptions to the negligence per se standard when special circumstances are encountered 40 BREACH Res Ipsa Loquitur Res Ipsa Loquitur is the occurrence of an event which produces the inference of negligence through circumstantial evidence even without a precise showing of how D behaved It requires that there be 1 no direct evidence of negligence 2 the harm be of the kind which ordinarily does not occur without negligence 3 the harm is cause by an agency or instrumentality within the exclusive control of D and 4 neither P nor 3ml persons contributed 1 No direct evidence of how A behaved in connection with the event 2 The harm that occurred does not normally occur except through the negligence of someone It does not have to be the only possible cause but the cause of such occurrences most of the time l39l must show that it is more probable than not that A s negligence caused the incident a Expert testimony can be used to show that an incident normally does not occur without negligence 3 A had exclusive control over the instrumentalities that caused the harm A must be the only one whose negligence could have caused the injury 3rCI restatement no longer requires that H show instrumentality under A s exclusive control but many courts do lessens the probability of negligence a Ybarra v Spangard exception medical cases 4 Neither l39l nor 3rd parties contributed to the circumstances Once P satis es Res Ipsa he has ful lled his burden of production A then has the burden of explanation A can defeat res ipsa and get a directed verdict by Proving the actual cause Showing general evidence of due care Showing the agency or instrumentality was not in D s exclusive control Showing that the agency or instrumentality was too far removed temporarily Showing that this injury is commonly caused without negligence Showing that someone else caused the injury Showing n contributed to the incident Other Factors If the facts are complex or involve specialized knowledge most courts will allow the H to use expert testimony to show whether the accident would have happened without negligence Expert testimony is often used for medical malpractice res ipsa Some courts require that evidence of what happened by more available to A than H Burden of proof remains on the H but the A may have the burden of explanation If the facts include any of these no RIL 41 All possible care was used Information about 0 5 conduct Evidence about the cause of the accident Products liabilitystrict liability 42 BREACH Res Ipsa Loquitur Case Law Byrne v Boadle p230 A man walking on the street is injured by a falling barrel of our and sues the owner of the shop from which it fell There was no proof as to who actually was at fault Liability the accident itself proves negligence George Foltis Inc V City of New York p236 The plaintiff was injured by a broken water main installed and maintained by the city of New York The plaintiff alleges res ipsa loquitur No liability res ipsa means that the facts warrant an inference not that they combel an inference Burden on Proof NEVER shifts to the Defendant Swiney V Malone Freight Lines p244 A motorist plaintiff was struck and injured when a wheel from a heavily loaded trailer came loose from a vehicle travelling in the opposite direction But if the defendant merely offers evidence of his own acts and precautions amounting to reasonable care it is seldom that a verdict can be directed in his favor when res ipsa loquitur is invoked D must attack the elements of Res Ipsa From Swiney quoting Prosser on Torts if the defendant seeks a directed verdict in his favor he must produce evidence which will destroy any reasonable inference of negligence or so completely contradict it that reasonable men could no longer accept it Ybarra v Spangard p251 Plaintiff went in for an appendectomy when he awoke he had pain in his right arm and shoulder which eventually developed into paralysis and muscle atrophy Plaintiff pleads res ipsa loquitur The plaintiff cannot say who is responsible for the injury and what exactly caused the injury no instrumentality under any one defendant39s control Special Applications of Doctrine of Res Ipsa Loquitur Multiple Defendants General Rule Although Ybarra presents an exception res ipsa loquitur is generally not applied to multiple defendants where it is inferable that only one has been negligent Liability it is manifestly unreasonable as he was unconscious for the defendants to insist that he identify any one of them as the person who did the negngntact 43 Cause in Fact Test Tip Address Cause in Fact before Proximate Cause quotBut forquot Test Cause in fact is normally established with the butfor test If the plaintiff s injuries would not have occurred but for the defendant s conduct then the defendant s conduct is the cause in fact 1 Identify the injury 2 Identify A s wrongful conduct 3 Reconstruct hypothetical where A s behavior is not negligent 4 Determine whether injuries suffered by H would have still occurred if A behaved correctly l139s injury occurred because of cause and likely wouldwould not have occurred but for linsert A39s actl Therefore cause in fact isis not established If But For is not satis ed cause in fact can still be established by 0 Multiple Sufficient Causal Sets Test When two events concur to cause harm and either one would have been sufficient to cause substantially the same harm without the other each is deemed a cause in fact of the injury since it would have been sufficient to bring the injury about unless the other act is an act of God 0 2 res test Kingston v Chicago amp N W Railway Substantial Factor Test where each of two events would have been sufficient by itself to bring about the harm the test for each event is whether it was a substantial factor in bringing about the harm 0 3rd Restatement instead uses But For and Multiple Sufficient Causal Sets Tests Most courts still follow earlier ones since 3rOI is new 0 Alternative Liabilitv Test Multiple Fault When T can show that each of 2 or more As was at fault but only one could have caused the injury If every A is negligent every negligent A is sued every A committed the same negligent act and 1139s injury is indivisible then the burden of proof shifts to each A to prove that he did not cause the injury 0 Summers v Tice Hunting party problem Court puts burden on each A to show it was the other shot I39I If neither can both are liable Loss of Chance Test if A caused some harm resulting in a loss of chance for recovery then u may recover for the lost chance In most courts full recovery is allowed but only if you would originally had over 50 chance of recovery however a minority allow recovery for any loss of chance multiplied by damages awarded 0 damages for loss of chance of deaths at Stage 2 death at Stage 1 of deaths at 2 44 Other Factors Use expert testimony in medical or specialized cases 0 Con icting experts can argue general causation can ever cause the injury or specific causation whether A s act caused n s injury Several acts may combine to cause injury as long if without each the injury would not occur Series of events giving rise to the rational inference of causation also satis es causeinfact Defense Had A not acted the injury still would have occurred Assumption of Risk Immunities ContributoryComparative Negligence 45 Cause in Fact Case Law Actual cause can be found in a series of events Daly v Bergstedt p 369 The plaintiff tripped on a pile of molding placed in an aisle of a grocery store The plaintiff fractured her leg and bruised her breast After much recovery it was determined that she had breast cancer which she died from Six physicians testi ed at the trial with all but one showing no causal relationship between trauma and cancer Trial court decision af rmed where quali ed medical witnesses differ as they do here it ordinarily is not for us on appeal to say that one is eminently right and the other so clearly wrong that the fact nder was obliged to accept the opinion of one and discard the opinion of the other Jury permitted to nd quotbut forquot causation where event and ultimate damage are separated by substantial time Multiple Suf cient Causal Sets Kingston V Chicago amp North western Railway p361 A NE defendant39s locomotive negligently set and a NW unknown but human origin forest re merged into one united re and damaged the plaintiff39s property Defendant liable for both res Exception to the sine qua non quotbut forquot test use substantial factor test in these situations Each party may be held liable where concurrent causes by two or more different parties would each have independently resulted in the same damages If one of the causal sets in an quotAct of Godquot then the human defendant can escape liability It is possible for one cause to be of such great proportion that it swallows up other causes and be the intervening or superseding cause Alternative Liability Summers v Tice p375 While ushing quail uphill from the positioned shooters the plaintiff was shot and struck by one of two possible hunters who aimed in his direction Liability they were both negligent towards the plaintiff and in the midst of a joint enterprise hence it should rest with them to absolve himself if he can alternative liability exception to the sine qua non quotbut forquot test Must join all defendants All must be negligent certain that one Ds negligence injured Burden of proof shifts to the Defendant to prove that he did not cause harm Applies only if both D are negligent 46 quotBut forquot and Medical Malpractice Negligence Kramer Service V Wilkins p 365 A man was injured in a hotel when after closing the door a piece of glass from the transom over a door fell upon him The transom was reported to have been in disrepair but the hotel did nothing In cases where the causal link between negligence and injury is based on subject matter that is beyond the experience and observation of laypersons expert testimony may be considered to determine whether there is a cause in fact link to determine liability Liability the court ruled that a reasonably prudent and careful operator should have foreseen the fall of the broken glass and a subsequent injury No liability for subsequent development of skin cancer Jury permitted to nd quotbut forquot causation where event and ultimate damage are separated by substantial time Daubert v MerreII Dow P sues for birth defects as a result of mother s prenatal ingestion of Bendectin Court rejects the Frye Rule which held that expert testimony must be quotgenerally acceptedquot Expert evidence must only be relevant and reliable and expert witnesses have more liberty to express opinion than regular witnesses Loss of Chance Matsuyama V Birnbaum p384 Plaintiff is diagnosed with cancer three years after seeking treatment Is there a loss of chance value in a situation when the chance of life has been depleted by negligence of a doctor Liable Defendant doctor is responsible for a portion of the decedent s expected income Fact nder calculations pg 393 The plaintiff must show some data about the loss of chance or there is no proof and no damages 47 Proximate Cause Foreseeability there can be multiple Proximate Causation limits A39s liability to only those injuries which are proximately caused by A39s negligent act Conduct will be deemed to be a proximate cause if the harm was a 1 foreseeable risk of the conduct and 2 if the harm was not brought about by an extraordinary or unforeseeable sequence of events Why Courts believe that by policy a A should not automatically be liable for all of the consequences no matter how improbable or farreaching of his actions 1 Foreseeability Scope of Risk Test Conduct will be deemed to be a proximate cause if the harm was a reasonably foreseeable result of the conduct and the type of P was foreseeable FORESEEABLE HARM Under the 3rel Restatement A defendant is not liable for harm different from the harms whose risk made the A s conduct tortious o The extent and method of injury do not have to be foreseeable It is irrelevant if the harm occurs in an unusual manner if it is of the same general sort that made the conduct negligent Exception Egg Shell Skull D is liable for any additional unforeseen physical consequences once P suffers any foreseeable impact or injury The D must take his P as he nds him Example Wagon Moundl Oil spill causes re The re was not one of the risks that made the spill tortious so A isn t liable for it FORESEEABLE PLAINTIFF lf A s conduct does not impose an unreasonable risk of harm upon n n will not be able to recover even if he is injured The particular l39l does not have to be foreseen as long as l39l is a member of a class as to which there was a general foreseeability of harm o Pasgrafv Long Island RR C0 Fireworks on train track Since A s conduct did not involve an unreasonable risk of harm to H A s conduct was not the proximate cause Petition ofKinsman Transit Co Based decision on Pasgraf s dissent Boat causes ood Those l39l s whose boats were ooded were members of the general class of people at risk 48 Look to next Section Superseding and lntervening Causes DEFENSES Ordinary care does not require an actor to protect against every possible risk only those that are reasonably foreseeable Superseding Cause Limitations Courts limit proximate cause because they are hesitant to award damages for purely economic loss 49 Proximate Cause Case Law Direct Cause Test classic approach Strict liability for an harm directy cause by Ds negligence no matter how unforeseeable or how unlikey it may have been at the time In Re Polemis p395 During the unloading of a cargo ship lled with petrol some spilled during transport a board fell into the hold creating a spark which ignited the spilt vapors destroying the ship Liability the person guilty of negligence is equally liable for its consequences whether he could have foreseen them or not The fact that the damage it in fact causes is not the exact kind of damage one would expect is immaterial so long as the damage is in fact traceable to the negligent act causation POLEMIS RULE If the D act was the direct cause of the injury no matter if it was unforeseeable and the D act was negligent the D is liable for all consequences that result Criticisms Allows liability regardless of foreseeability bars liability where action could reasonably cause harm but wasn t direct ForeseeabilityScope of the Risk Approach modern approach lfForeseeabe harm results then Defendant is liable If unforeseeable harm result then Defendant is not liable Foreseeable Harm Wagon Mound l p406 The ship Wagon Mound carelessly spilled a large quantity of bunkering oil into the bay The plaintiff spoke with the manager of The Wagon Mound who con rmed that the furnace oil in open water could not burn After two days of safe work a piece of welding material fell into the water ignited a re and severely damaged the wharf No liability it does not seem consonant with current ideas ofjustice and morality that for an act of negligence however slight which results in some trivial foreseeable damage the actor should be liable for all consequences however unforeseeable and grave so long as they can be said to be direct vs remote Overrules Polemis insofar as using foreseeability as opposed to direct vs remote causes RULE Only responsible for harm that is reasonably foreseeable and probable Suppresses the idea of remoteness all that matters is that the harm was foreseeable Zone of Danger Palsgraf v Long Island Railroad p401 A man carrying a package became unsteady afterjumping into the train so a guard on the train reached forward to help him in and another guard on the platform pushed him from behind In the commotion his package was dislodged fell upon 50 the rails subsequently exploded and the shock of the explosion threw down some scales which fell upon the plaintiff injuring her No liability the conduct of the defendant39s guard if a wrong in its relation to the holder of the package was not a wrong in its relation to the plaintiff standing far away risks within the quotrange of apprehensionquot ie quotzone of danger Cardozo majority No duty to P outside of quotdanger zonequot responsible for harm only to people in quotdanger zonequot Introduces foreseeability in relation to duty No duty to the unforeseeable plaintiff RULE It doesn39t have to be likely to occur just foreseeable Zone of Dangen Andrews minority doesn t want this to be a duty case makes a causation analysis Everyone owes the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others liable to everyone for the damages your negligence causes However Andrews recognizes that quotit is all a question of expediencequot and all matters such as foreseeability should be viewed with common sense Method of Harm does NOT have to be foreseeable Only the type of harm has to be foreseeable Hughes II Lord Advocate p 420 Defendants removed a manhole cover and erected a shelter around the cover which was surrounded on four sides by red warning paraffin lamps One of the boys tripped on a lamp which fell into the hole causing an explosion with 30 ft ames The plaintiff fell into the hole and sustained severe burns Possible liability the presence of children in the shelter and in the manhole ought reasonably to have been anticipated by the defendant as the lighted lamps in the public street adjacent to a tented shelter provided an attractive allurement to children passing along the street Same injury occurred just in a different way than was foreseeable Limitations Doughty V Turner Manufacturing p423 When heated above 500 degrees a chemical reaction caused water to be released as steam from a cauldron lid which threw out some of the hot molten liquid The lid which was porous and capable of holding water did not have actual moisture at the time of the accident Explosion splash is a different harm than the splash the lid was designed to prevent Potentially no liability the defendants were in breach of no duty of care owed to the plaintiff for this was not an act or omission which they could reasonablv foresee was likely to cause him In Re Kinsman p429 The Shiras due to accumulation of ice negligently broke free and began oating down the river The Shiras stuck and damaged other ships and the two ships continued to oat down the river Meanwhile the operators of a drawbridge downstream were warned of the approaching ships but due to unknown circumstances the bridge was not raised in time 51 The ships struck the bridge which collapsed and damaged other nearby property The ships and debris formed a dam on the river and subsequently ooded and damaged property as far as three miles upstream Different from Palsgraf it doesn t matter how the people were injured just that they were injured at all Liability for the ooding damage where the damages resulted from the same physical forces whose existence required the exercise of greater care than was displayed and were of the same general sort that was expectable and to the same class of persons unforseeability of the exact developments and the extent of the loss will not limit liability The dissent disagreed as the ooding was not foreseeable Broad ruling and not applied today Friendlyj Establishing Proximate Cause Checklist Type Injury was or was not foreseeable ii Method Method that created the injury doesn t have to be foreseen iii Extend Tortfeaser is responsible for full extent of injury even if unforeseen iv Forces Unleashed If you unleash a force you are responsible for harm reasonable foreseeable v Danger Zone Outside of the danger zone no liability Proximate Cause Intervening V Superseding Causes 2 Extraordinary or unforeseeable sequence of events A Superseding Cause prevents D s negligence from being held to be the proximate cause of the injury because it supersedes or cancels D s liability An event is superseding if the intervention 1 was not foreseeable or normal and 2 it produced results which are not of the same general nature as those that made D s conduct negligent Unforeseeable acts include unforeseeable intentional tortscrimes gross negligence intervention by religious duty or unforeseeable acts of God Only if malpractice is grossly negligent is it considered unforeseeable lnterveninq Cause a D s act can be found to be the proximate cause if the sequence of events after D s negligence were only intervening causes An intervening cause contributes to D s negligence in producing P s injury and does not relieve D of liability An event is intervening if 1 D should have foreseen the possibility that it might occur OR if 2 D should have foreseen the kind of harm suffered by P The negligence of 3rd persons may be sufficiently foreseeable including negligence during rescue Where a 3rd parties intervention is a normal response to D s act even if it is not foreseeable it will likely be found to be intervening includes escape or aggravation of injury by medical malpractice Intervention leads to same type of harm threatened by D s negligence 52 Proximate Cause Intervening V Superseding Causes Case Law Intervening Cause Glasgow Realty Co v MetCaIfe p457 While a girl was closing a window a 9yearold boy put both hands against the window negligently maintained by the defendant it broke loose and fell upon the people below The defendants claim the boy39s actions were an intervening cause relieving defendant of liability In the panic to avoid the falling glass a woman was knocked down and broke her hip resulting in permanent disability Liability the basic principle of the law of intervening or superseding causes is that the original negligent actor is not relieved of liability by the subsequent negligent acts of another if the subsequent acts might have been foreseen No defendant will escape liability due to the negligence of another when two actors are simultaneously negligent one39s negligence does not supersede the other Subersedind Cause Brauer V New York Central amp Hudson River Railroad p461 53 A train struck a wagon scattering its contents The scattered empty barrels and keg of cider were stolen while the plaintiff was incapacitated There were two guards on the freight train to protect RR property against thieves but they did nothing Liability the act of a third person intervening and contributing to a necessary condition to the injurious effect of the original negligence even if criminal will not excuse the rst wrongdoer if such act ought to have been foreseen since they had guards criminal acts could have been foreseen Where subsequent criminal activity is unforeseeable then intervening criminal activity of third party may supersede P39s liability but only for the unforeseeable harm In this case the court held that the criminal activity was foreseeable Mahone V Birmingham Elec Co Defendant39s bus violated a city ordinance by failing to pull over to the curb when discharging passengers Plaintiff slipped on a banana peel in the street and was injured Defendant39s negligence not the proximate cause of the plaintiff39s injuries because the intervening cause of the accident was not to be reasonablv anticipated Harm Negligent In iction of Emotional Distress Negligent ln iction of Emotional Distress is the 1 negligent 2 breach of a 3 duty owed by the D to the P 4 causing 5 severe emotional suffering Liability is limited by policy considerations and seems to only arise in horrible cases often corpse cases 1 Proximate Cause The majority of courts follow the Dillon rule to determine when an emotional injury is foreseeable Factors considered a Whether P located near the scene of the accident b Whether shock resulted from the direct emotional impact from sensory and contemporaneous observance of the accident c What the relationship between the P and the victim was 2 Breach 54 3 Causation The actor must directly interfere with one s interest in emotional wellbeing But for D s conduct P s injury would not have occurred Therefore causation is satis ed 4 Emotional Distress a Typically the emotional injury must be serious enough that it manifests in b physical symptoms or at least diagnosable psychological injury lf D s negligent act physically endangers P does not result in physical impact on P and causes P to have emotional distress with physical consequences nearly all courts allow recovery If P suffers purely emotional distress due to fear or grief relating to 3rd persons the courts are split i The R2 allows P to recover if P was in danger of physical harm and a family member was hurt No duty outside the quotZone of Dangerquot ii However in recent years many courts have moved away from this if P observes the danger or injury and the 3rd person is a close relative d Exposure if P suffers an increased likelihood of a particular disease because of exposure to something P may generally not recover for the emotional harm Eggshell Psyche Rule If the harm could only reasonably affect only the hurt feelings of the supersensitive P there is not entitlement to recovery If however the harm reasonably could have been expected to befall the ordinary person the tortfeasor must take their victim as they nd them Harm Economic Harm When a D tortuously causes only pure economic loss to P the traditional rule is that P may not recover anything However courts have started to abandon this rule when 1 The injury to P was relatively foreseeable 2 Relatively few plaintiffs would be permitted to sue if liability were found 3 D s conduct is relatively blameworthy 55 Nonstranger Cases There is a contract between the parties or they are indirectly connected through a market transaction Majority ofjurisdictions bar recovery because they could have contracted around it Stranger Cases No connection between the parties General rule is no liability for pure economic loss although they couldn t contract for it it is justi ed by ruinous liability Product Failures A physical thing has been damaged not just pure economic loss If the only damage is to the piece of property itself it destroys itself cannot recover in tort Expert Testimony Custom and Malpractice Expert Testimony Expert testimony is used to establish the standard of care in MedicalSpecialized Fields An expert is a person who is able to testify before a jury on matters of fact within his specialized eld and has greater leniency that typical witnesses Expert testimony must be reliable and to determine whether the expert testimony is admissible the court will 56 consider Daubert s four nonexclusive requirements which are 1 falsi abilitytestability 2 error rating 3 peer review and publication and 4 general acceptance by a community of experts Frye Test m Expert testimony is used to testify as to the customs of an industry Custom may be taken as evidence of negligence but is not dispositive unless prevalent custom must be proven When P shows D did not follow custom this suggests but does not prove that D was negligent When D shows everyone in an industry follows a custom the jury can conclude the custom is unreasonable if there are safer alternatives Malpractice amp Informed Consent Malpractice Professionals including doctors lawyers accountants engineers etc must act with the level of skill and learning commonly possessed by a minimally quali ed member of the profession in good standing If A has a higher degree of knowledge skill or experience than the reasonable person A must use that level Other Factors Professional will not normally be held to guarantee that a successful result will occur only that they will use the requisite minimum skill and competence If A claims to be a specialist in a certain part of the profession they will be held to the minimum standard of the specialty Standard Professionals have traditionally been held to a strict locality standard the standard prevailing in the community in which they practice However many courts now apply either a similar locality standard standard of care observed by physicians of ordinary skill and care in either the A s locality or in a similar community or a national standard national standard but still subject to regional variations The newer standards allow for expert testimony from experts who practice outside of the community Informed Consent Part of a physician s professional duty is to adequately disclose the risks of treatment to patient in advance Doctor must disclose all risks inherent that are sufficiently material that a reasonable patient would take them into account when making a medical decision There is a cause of action if a material risk exists the doctor fails to disclose it the patient would have chosen a different course of action and actual injury results General Rule What would a reasonable patient want to know Not what would a reasonable doctor have said Excuses to Informed Consent 1 Emergency 2 Patient mental incompetence 3 Risk of physical or mental trauma is greater that the risk of treatment 57 Expert Testimony Custom and Malpractice Case Law Custom does not alwavs equal the reasonable standard of care Helling V Carey p212 A woman plaintiff went to an ophthalmology practice to seek treatment for her nearsightedness she was given contacts Due to continued problems the doctor39s eventually tested her for glaucoma and con rmed the diagnosis Just because it39s custom doesn39t mean that it is the acceptable standard of care Liability the defendants did comply with the standard of care for their specialty which does not require the giving of a routine pressure test to persons under 40 years of age However the test is simple and inexpensive and therefore it is the duty of the courts to say what is required to protect patients under 40 from the damaging results of glaucoma T Hoope There are precautions so imperative that even their universal disregard will not excuse their omission Implied Consent Miller v Kennedy p218 The plaintiff lost his kidney after complications from a kidney biopsy He sued the doctor stating that he would not have consented to the biopsy had he properly been informed of the risks Liability the duty to warn and to advise of alternatives does not arise from the custom of physicians in the locality but exists as a matter of law Burden of proof on the P to show that he would not have accepted the treatment had he known 58 Liability General Rule The imposition of liability depends upon a showing by the n that his or her injury was caused by the act of the A or by an instrumentality under the A s control Exceonns 1 Alternative Liability Summers v Tice a If a party cannot identify which of two or more As caused an injury the burden of proof may shift to the As to show that they were not responsible for the harm To use this must sue every potential A 2 Concert of Action Theory a One is subject to liability if he does a tortious act in concert with the other or pursuant to a common design with him or knows that the other s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other or gives substantial assistance to the other in accomplishing a tortious result and his own conduct constitutes a breach of duty to the 3rd person Express agreement not necessary just tacit understanding 3 lndustrvWide LiabilitvEnterprise Liabilitv a If u could establish by a preponderance of the evidence that one A manufactured a product the burden of proof as to causation would shift to all As 4 National Market Share When n cannot prove which of 3 or more As caused his injury but can show that all produced a defective product Ex SindeI v Abbott Laboratories DES drug a To award damages the court measures the likelihood that any of the As supplied the product that caused injury by the percentage which the product sold by each of them bears to the entire production of the product sold for that purpose and each A must pay that percentage b Factors courts consider i Some courts require that n sue a substantial percentage of As Some don t just let the others interplead each other ii Courts are split on whether a A can exculpate itself by showing that it did not make the speci c item Majority do not allow them to if they have produced for the national market iii Courts usually use a national market concept to compute damages iv The more socially valuable a product is perceived to be the less likely market share will be applied not likely with vaccines 59 Vicarious Liability Vicarious liability refers to all of the doctrines which may cause one person to become liable for the tortious conduct of another Includes A Liability of employer for acts of employees B Occasional liability for acts of an independent contractor one has engaged C Liability underJoint Enterprise D Liability pursuant to an automobile consent statute E lmputed Contributory Negligence A EMPLOYEREMPLOYEE Respondeat Superior If an employee commits any tort during the scope of his employment his employer will be liable jointly with the employee 1 Employee Vicarious liability applies to all employees but not to most cases involving independent contractors a An employee is one who works subject to the close control over the physical details of the work by the person who hired him b An independent contractor is hired to produce a certain result but is not subject to the close control of the person who hired him and may do the work more or less in the manner he decides upon 2 Any tort Vicarious liability applies to all torts including intentional torts and strict liability a Intentional torts If the employee merely acts from personal motives the employer generally will not be liable 3 Scope of Employment The tortfeasors must be acting with intent to further his employer s business purpose even if the means used were indirect unwise or forbidden a Extensions i A detour or sidetrip for personal purposes by an employee that was reasonably foreseeable ii Even if the act was expressly forbidden by the employer it will be in the scope of employment if done in furtherance of the employment b Exceptions i When an employee is traveling from home to work they are not acting within the scope of their employment However courts are split on whether they are when returning from work to home B INDEPENDENT CONTRACTORS A person who hires an independent contractor is not generally liable for the torts of that person Exceptions 1 If the employer is negligent themselves in dealings with the independent contractor 6O a Example Employer negligently selects an inappropriate contractor for the work and the chosen contractor does not have adequate experience to do the project safely 2 NonDelegable Duties There are some duties of care that are deemed so important that the delegator is liable for negligence by an independent contractor even if the delegator used all due care in selecting the contractor These include a When the work is likely to involve a peculiar risk risk of nontypical type of injury of physical injury or property damage to others unless special precautions are taken b When the work is abnormally dangerous ultrahazardous so that the employer would be strictly liable if he did the work himself c When the employer is a possessor lessor of land and owes a duty of care to the public and would thus be liable for negligence in altering or repairing the property himself i However this rule does not apply when the contractor is actively doing the work and has taken over the details of handling the job d The work is done in a public place C JOINT ENTERPRISE Cases where a n sues multiple As where more than one party has allegedly caused u an indivisible injury lf established liability is joint and several A joint enterprise may subject each of the participants to vicarious liability for the other s negngnce A joint enterprise exists when four requirements are met 1 An express or implied agreement between the members 2 A common purpose to be carried out by the members 3 A common nancial interest in that purpose 4 An equal right to voice in the enterprise equal right of control Manufacturer of goods are not found to be in a joint enterprise with the retailer D AUTOMOBILE CONSENT LIABILITY joint enterprise is used most often in auto accident cases to either allow the occupant of another car to recover against passenger or prevent the passenger from recovering against the driver of the other car because of imputed contributory negligence However there are other recovery methods Consent Statutes In 25 of states an automobile consent statute makes the owner of an automobile vicariously liable for any negligence committed by one using the car with the owner s permission Automobile Insurance Liability Policy The standard auto insurance policy covers the named insured any member of the named insured s household and any other person who uses the automobile with the consent of the insured Bailments A bailor may be negligent in entrusting a potentially dangerous instrument to the bailee when the bailor should know that the bailee may use it unsafely The claim against the bailor would be negligent entrustment not vicarious liability 61 Vicarious Liability Case Law WongLeong V Hawaiian Independent Re nery lnc p 688 bene t to the employer attends company party and leaves intoxicated Kills four Must take place in the scope of employment and must be a bene t to the employer Company used it as a moral builder and alcohol crucial Employer could be held vicariously liable ones v HealthSouth Treasure Valley p 700 in an operating room there were independent contractor including anesthesiologist Anesthesiologist cuffs the blood of the patient and results in her death No actual employees of the hospital present and the hospital is determined to not be negligent Apparent agency authority applies 1 conduct by the principal that would lead a person to reasonably believe that another person acts on the principal39s behalf and 2 acceptance of the agent39s service by one who reasonable believes it is rendered on behalf of the principal Hospital could be found liable This is the exception to the apparent agency rule 62 Strict Liability Strict Liability is the imposition of liability on a party without a nding of fault because the type of harm can39t be prevented through exercise of ordinary care Generally Limits Causation Must be established Contributory Negligence is not a defense Comparative responsibility among Ds does come into play with strict product liability and maybe with other types of strict liability where there are multiple Ds Intentional activities superseding causes can cut off strict liability Assumption of risk is a defense sign says quotblasting Keep outquot or trespassing atzoo If no strict liability look to negligence claim Abnormally sensitive plaintiff cannot recover under strict liability because they are abnormally sensitive Look to negligence instead Test Tip Argument Against Strict Liability The fact that it is feasible to avoid accidents by simply exercising due care is an argument against strict liability 63 Strict Liability Animals Animal Trespass RULE The ownerpossessor of livestock is strictly liable for property damage caused by the animals if they trespass upon another s land NOTE This is really just for livestock Doesn t include household pets Wild Animals RULE A person who keeps a wild animal is strictly liable for all damage done by it provided that the damage results from quotdangerous propensityquot that is typical of the species in question or stems from a dangerous tendency of the particular animal in question of which the owner is or should be aware Owner s lack of knowledge or fault is NOT a defense NOTE What will be a wild animal depends on the circumstances Once a wild animal always a wild animal Domestic Animals RULE In order for domestic animal s owner to be strictly liable 1 the animal must be more dangerous than other animals of its breedtype and 2 the owner must be on notice that it is abnormally dangerous quotDomestic animalquot An animal that is by custom devoted to the service of mankind at the time and in the place where it is kept bees bulls stallions etc R2 506 quotOne bite rulequot if animal has bitten someone one time owner on notice that animal is dangerous NOTE Dog doesn t always get 1 free bite if owner notices it is especially aggressive prior to the bite for ex Coase Theorem liability is like property so why not buy and sell it a It doesn t matter if there is strict liability of not the same outcome results b Resources will be efficiently allocated no matter what liability scheme is utilized because the parties have to bargain 64 Strict Liability Abnormally Dangerous Activities 2quot 39 Restatement View R2 519 One who carries of an 1 abnormally dangerous activity is subject to liability for 2 harm although he has exercised the upmost care Factors that are considered to determine what constitutes an abnormally dangerous activity matter of law R2 520 a Existence of a high degree of risk of some harm b Likelihood that the resulting harm will be great c Inability to eliminate the risk through exercise of reasonable care i Indiana Harbor Belt RR Posner thinks this factor is most important d Extent to which activity is not a matter of common usage e Inappropriateness of the activity to the place f Extent to which its value in community is outweighed by the danger Liability is limited to the kind of harm which makes the activity abnormally dangerous A D will not be liable for his activities if the harm would not have occurred except for the fact that P conducts an abnormally sensitive activity Ex Foster v Preston Mill C0 Minks P still needs cause in fact and proximate cause 3quot I Restatement View R3 20 One who carries on an 1 abnormally dangerous activity is subject to strict liability for 2 resulting physical harm To be abnormally dangerous the activity must create a foreseeable and highly signi cant risk of harm despite reasonable care and must not be a matter of common usage a Common Usage Broad understanding Includes activities carried on by a large fraction of the people in the community even if they are engaged by only a limited number of actors like electricity and gas 65 b Scope is limited in R3 24 to the physical harms characteristic of the risks Activities that are typically abnormally dangerous a b c Tth Defenses O39QJ Blasting use or the storage of explosives Gasoline courts vary on the storage of gasoline Reservoirs courts mixed but frequently impose strict liability if escape is of something other than water Poisons strict liability of application of poisons vary Land lls and Toxic Waste con icting answers usually statutory Atomic Energy operation of nuclear reactor Contributory Negligence is not a defense Assumption of Risk is a defense if P knowingly and voluntarily subjects themselves Strict Liability Worker s Compensation All states have adopted workers39 compensation statutes which 1 create liability on the part of the employer without fault as the 2 sole remedy for the employee as long as 3 the activities arise in the course of employment 1 The employer is liable for injuries even if they are completely without fault and the employee is contributorily negligent 2 The employee gives up his right to sue in tort and cannot recover for pain and suffering 3 Activities which are purely personal are not covered Intentional Torts if the employee can show that the employer intentionally injured him he may pursue a common law action Third Parties the employee is not prevented from suing a 3rd party who would be liable under the common law for his injuries 66 Strict Liability Case Law Animals Duren V Kunkel p 762 FACTS D bought most dangerous type of bull it acted up so D got discount kept it in separate pin from other bulls D told P to move bull bu charged P and injured him HOLD NO strict liability Dangerousness posed by domestic animal must in some way be abnormal for the breed This type of bull known to be dangerous breed and wasn t more dangerous than other limousin bulls Abnormally Dangerous Activities Fletcher V Rylands p 770 FACTS D constructed mi pond on his property shafts break lose bc of weight of water water traveled underground and ooded Ps property D in not negligent in his building of pond HOLD D strictly liable no negligence needed bc P did not knowingly assume the risk of injury 67 RULE J Blackburn The person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if is escapes must keep it in at his peril and if he does not do so is strictly liable for damage which is natural consequence of its escape NOTE This is the quotnot naturally therequot case Rylands V Fletcher p 774 HOLD Af rmed D strictly liable RULE Lord Cairns If D uses land for any purpose that is a quotnonnatural usequot D does it at his own peril and is strictly liable for damages Lossee v Buchannan p 780 FACTS D s company using broiler it exploded and projectiled onto P s property damaging P s building HOLD D is not liable in the absence of evidence of negligence RULE Things that are not normally dangerous are not subject to strict liability if they cause damage must prove negligence Just because something is dangerous does not automatically make it abnormally dangerous Why this is important Protected industrial revolution and progression of civilized society Klein V Pyrodyne p 787 P was injured by an aerial shell at a public reworks exhibition D is the pyrotechnic company hired to set up and discharge the reworks lssue Are pyro technicians strictly liable for damages caused by reworks displays The essential question is whether the risk created is so unusual either because of its magnitude or because of the circumstances surrounding it as to justify the imposition of strict liability for the harm that results from it even though it is carried on with all reasonable care Factors A B and C are present Fireworks displays are abnormally dangerous activities Sanders agrees with the concurrence no reason to go beyond the statute that creates strict liability AD present Indiana Harbor Belt v American Cynamid p 797 D is a major manufacturer of chemicals including dangerous chemicals P contends that the shipping of acrylonitrile in bulk through the Chicago metropolitan area is an abnormally dangerous activity Posner Case Abnormally dangerous is about dangerous activities not dangerous things It is not the substance that gives rise to liability but the transportation of the substance Factor C is the key element The fact that it is feasible to largely avoid accidents is an argument against strict liability It39s impossible to eliminate all risk c Posner says that over time we can get past factor C and move away from strict liability Planes are very unlikely to fall from the sky in the modern age bc if you re careful they don t fall from the sky d Strict liability is a method of reducing injuries when negligence isn39t enough If using due care will make an activity safe no strict liability Foster V Preston Mill p 815 68 Blasting operations conducted by D frightened the owner of minks P causing the mink mother to kill her babies No strict liability for harm caused by abnormally dangerous activity if harm would not have resulted but for the abnormally sensitive nature of P39s activity R2T 524A a The limitation on Proximate Cause for type of harm is more used in Strict Liability Claims than Negligence Claims Products Liability Warranty Products Liability refers to the liability of the seller of a 1 tangible item which because of a 2 defect 3 causes injury to the purchaser user or sometimes a bystander and there are 4 damages as a result Based on 3 theories negligence warranty strict liability Warranties warranties are important because some states haven t adopted strict liability Statute of Limitations on warranty claims are longer than tort claims so you can sue under warranty if your claim s statute of limitations runs 69 Express Warranty 0 O 0 Provides recovery for economic losses when a product does not meet a seller s express representations about a product which are the basis of the bargain in terms of the quality performance construction or durability of the product P doesn t have to prove a particular reliance on the promise to recover Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description Oral written model It is not necessary to use words like warranty or guarantee Defense Mere Puf ng saying this is the greatest thing every not considered an express warranty After someone signs a deal and someone says something then it cannot be the basis for the bargain Implied Warranty of Merchantability O O O Implied in a contract is the seller is a merchant with respect to goods of that kind The item must be t for the ordinary purpose and pass without objection in the trase Disclaimer Defense can be disclaimed but must speci cally mention merchantability Implied Warranty of Fitness for a Particular Purpose 0 If seller know that buyer has a particular purpose in mind and buyer relies on seller s expertise Buyer can sue under warranty of tness for a particular purpose if that product is un t for a speci c purpose that the P made clear to D Buyer must prove that he relied on seller s skill or judgment to select or furnish suitable goods and seller thad reason to know of such reliance The seller does not need to be a merchant Product Liability Manufacturing Defect 70 Manufacturing Defect exists when the Defendant is a 1 seller 2 in the business of selling products of the type in questions whose 3 defective product 4 causes 5 personal injury or property damages and 6 the product did not substantially change in condition since leaving the Defendant39s possession R2 402 Defect at the time the product leaves the seller s hands in a condition not contemplated by the ultimate consumer which will be unreasonably dangerous to him R3 Defect A product is defective at the time of sale or distribution if it contains a manufacturing defect is defective in design or is defective because of inadequate warnings Manufacturing Defect Manufacturing defects are when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product Manufacturing defect one bad tire P can use 0 Expert to offer evidence of the manufacturing defect 0 Expert to circumstantially prove defect caused failure 0 Direct evidence from eyewitness of malfunction supported by expert testimony o Inferential evidence by negating other causes Defenses Alterations Wear and tear and age of the product will negate the substantial change element of the manufacturing defect P s behavior in a comparative fault jurisdiction P s fault is a defense to reduce fault by the seller unless the only thing P failed to do was discover the defect o P has a right to assume that the product will not be defective shouldn t have to discover it 71 Products Liability Design Defect Design Defect is a defect which creates a 1 foreseeable risk of harm posed by the product 2 that could have been reduced or avoided by the adoption of a reasonable alternative design Design defects may include structural defects lack of safety features R2 Consumer Expectations Test a product is unreasonably dangerous if it is dangerous to an extent beyond that which would be contemplated by an ordinary consumer purchasing it If the product is obviously dangerous there is no design defect R3 Abandons consumer expectation and moves to riskutility Usefulness and desirability of the product Safety aspects of the product Availability of substitute product that would meet the same need and not be unsafe The manufacturer s ability to eliminate unsafe character of the product without impairing its usefulness The user s ability to avoid by the exercise of due care The existence of suitable warnings The general public and the speci c user s awareness of the dangers of the product and their avoidability Feasibility on the part of the manufacturer of spreading loss by setting the price of the product or carrying liability insurance Crashworthiness Doctrine A motor vehicle manufacturer may be liable in negligence or strict liability for injuries sustained in an accident where a design defect though not the cause of the accident caused or enhanced the injuries Manufacturers have a duty of care to minimize the injurious effects of a foreseeable collision by employing common sense safety features Only liable for enhancement injuries Crashing is a foreseeable misuse Defenses Unavoidably unsafe some products cannot be made safe for their intended use A product like this will not be defective and subject to strict liability because there is not a safer way to make them ie drugs Custom is not a defense Product was modi ed 72 Just because a new design is marginally better does not mean the old design defective Product Liability Warning Defects Inadequate instructions or warnings when the forseeable risks of harm posed by the product would have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distribution or a processor in the chain of distribution and the omission of the instructions or warnings renders the product not reasonably safe 1 Duty D has a duty to warn of unsafe risks associated with a product 2 Breach 0 Can either be that there was no warning provided when it should have been OR the warning didn t contain sufficient information o If there was a warning given 2 types of breach Substantively inadequate fails to provide consumers with necessary information to properly assess the risk of failing to give the reason for the warning or by failing to warn of foreseeable risks no matter how small Procedurally inadequate fails to make the warning conspicuous in terms of size or location fails to use appropriate graph or nonverbal warning or should require language other than English 3 Causation to establish a warning defect P must prove that he did not know of the danger and that he would have acted different had he known 0 The warning defect and not the product alone must be the cause in fact of the P s injuries 0 The danger that D failed to warn about must be the proximate cause of the P s injuries Defenses P knew of the danger Danger was obvious Learned intermediary if there is a learned intermediary then the manufacturer s duty is only to that intermediary and not to the end consumer DEFENSES TO ALL DEFECTS PRE EMPTION Three Types 73 Express PreEmption Occupy the Field PreEmption Congress has legislation so thoroughly that there is no room for state rules very rare ie atomic bombs locomotive boilers Implied PreEmption Con ict between Federal and State 0 Impossibility PreEmption impossible to comply with both state and federal statutes Ex Federal says you will have seatbelts and only seatbelts and state says you will have airbags and only airbags 0 Con ict PreEmption obstruct accomplishing and executing Congress s full purpose and objectives Products Liability Case Law Negligence Overcoming the Privity Barrier Thomas v Winchester p 823 OLD LAW Woman bought extract of dandelion turned out to be belladonna a deadly p0Ison Hold Reseller was responsible even though it didn t make it he had privity Only exception if quotimminently dangerousquot Cardozo Exception its imminently dangerous if reasonably certain to put paerson in danger if negligently made exception has swallowed the rule End of privitiy and beginning of Modern Rule Remote Vendor could be held liable even though there was no connection between him and the plaintiffs because the negligence was quotimminently dangerousquot MacPherson v Buick Motor Co p 828 P sued D the manufacturer of the car because the car suddenly collapsed due to a wheel from a component part manufacturer Rule Cardozo quotIf the nature of a thing is such that it is reasonably certain to place like and limb in peril when negligently made it is then a thing of dangerquot If it is a thing of danger there is a duty to make it carefully Today You can sure everybody Component part manufr manufacturer of nished product etc Developmentof Modern Product Liability Greenman v Yuba Power Products Inc p 845 P was hit in the head when a piece of wood ew from a machine he was using P sued manuf And retailer for breach of warranty and negligence Held quotTo establish the manufacturer s liability it was sufficient that P proved that he was injured while using the item in a way that it was intended to be used as a result in defect 74 in design wnad manufacture of which the P was not aware that made the item unsafe for its intended usequot Note Traynor thinks all defects are defects Manufacturing Defects Smoot v Mazda Motors of America p 854 Airbags deployed while P was driving one day after notice was given of an increased risk of airbag deployment Car cannot be traced There must be expert testimony to show the car was defective Their expert could have done many things but did not he offered naked unsubstantiated evidence They must prove the existence of a defect when the product left the defendant Riley v Becton Dickson p 880 Nurse infected with HI as a result of being stuck with an IV Claims design defect Used risk utility analysis and determines that it was too expensive to eliminate unsafe characteristic of product Note focus on probability instead of the P and their particular injury Grundberg v Upjohn Co p 895 P shot her mother as a side effect of ingesting Halcion Focuses almost directly on Comment K of R2 402A A drug approved by the FDA cannot as a matter of law be quotdefectivequot expansion of the literal meaning of comment K Comment K protects strict liability products that cannot be designed more safely The court adopts the idea that all prescription drugs are avoidably unsafe Let the FDA decide Broad grant of immunity from strict liability Warning Defects johnson v American Cyanamid p 907 P contracted polio as a result of being in contact with his daughter who was given the live oral polio vaccine Suing for inadequacy of warning because as a matter of law the product was not defective and a warning did exist Warning obligation for medicines was between manufacturer and doctor The doctor had the responsibility of warning the patient Warning adequate D Wins In recent years not that drug companies market directly to consumers they have the responsibility of wraning Learned intermediary responsible third party doctornurse who assumes liability for warning the patient The manufacturer maintains a duty to warn the doctor This has eroded bc drug companies often market directly to consumers Burke v Spartanics p 922 A metal shearing machine severed Ps ngers P sues D on defective design and adequacy of warning theories D implead s Ps employer P lost on all counts The ramp added by P s employer altered a feature of the machine if the employer had not altered the machine the job P was doing when he lost his ngers would be unnecessary No duty to warn if the dangers associated with the machine are obvious and generally known and recognized Causation lssue If warning wouldn39t have made a different to the particular plaintiff then there is no duty to warn Feldman v Lederle Labs p 932 75 P got grey teetch from tetracycline given to her by her father a doctor she sues the laboratory for inadequate warning No duty to warn of the unknown judged from foresight only at the time of manufacture not at the time of injury To be defective the product must have been defecting when the product left the D s control and the defect caused injury to a reasonably foreseeable user Fault based liability reemergence of reasonableness standard State of the art defense true that there was no warning but at the time it was sold no one knew that the risk existed If no one knew then strict liability analysis becomes almost identical to negligence analysis Admissibility of Expert Testimony Kuhmo Tire Ca V Carmichael p 948 P had a tire blowout and brought in an Expert Daubert s general gatekeeping on Expert Testimony not only applies to quotscientific knowledgequot but also technical and quotother specializedquot knowledge A trial court may consider one or more of the speci c factors in Daubert The objective of the requirements is to ensure the reliability and relevance of the expert testimony Defenses PreEmption Bates V Dow 963 Peanut farmers sue D due to their crops being severely damaged by the newly marketed pesticide Strongarm Label states quotuse of Strongarm is recommended in all areas where peanuts are grown FIRFA preemption addressed FIRFA was not a sufficiently comprehensive statute to justify an inference that Congress has occupied the eld to the exclusion of the states The statute leaves ample room for states and localities to supplement Parallel requirements D E F E N S E S Contributory Comparative Negligence If the facts don t specify which to use explain both Contributory Negligence A plaintiffs negligent act or omission that is a proximate cause of his injuries is totally barred from recovery even in cases of negligence per se It has been abandoned in most jurisdictions Elements 1 Standard of Care TI is held to the standard of care of a reasonable person under like circumstances 2 Causation Required Both actual and proximate causation are required Not a defense for intentional torts or for willful and wanton negligencerecklessness 76 Not a defense under the doctrine of Last Clear Chance If A sees n s peril in time to avoid the problem A s ast cear chance wipes out n s contributory negligence Last Clear Chance If A had the last opportunity to prevent injury the existence of A s ast cear chance may overrule the n s contributory negligence The court developed this to allocate ega blame for injury to the last party that had a chance to avoid the accident Worked to soften the impact of n s contributory negligence when the A had perceived n s position and could have avoided the accident 2 types of Plaintiffs o Helpless Restatement 2ncl of Torts 479 A n who has negligently subjected himself to a risk of harm from the A s subsequent negligence may recover for harm cause if immediately preceding the harm The n is unable to avoid it by the exercise of reasonable care AND 0 A is negligent in failing to utilize w reasonable care and competence his ability to avoid the harm when he either knows of the peril or should know 0 lnattentive If a n is inattentive Last Cear Chance applies but only if A recognizes that n is unlikely to discover the harm in time and still fails to use reasonable care to avoid harm Comparative Negligence Divides iabiity between H and A in proportion to the relative percentage of fault n s recovery is reduced by a proportion equal to the ratio between his own negligence and the total negligence contributing to the accident Types Discuss Both 1 Pure Comparative Negligence Only adopted by 13 states a l39l can recover regardless of degree of negligence as long as he is not 100 negligent b Risky because a A can recover more if his damages are greater than n s even if he created the harm 2 50 System jurisdiction imposes a cap on how iabe u must be to recover a Under the Bradley rule in case of tie n doesn t recover b Under the Wisconsin rue same in TX in case of tie n can recover Multiple Parties 0 Majority of courts compare n negligence with the combined negligence of all As 0 A minority of courts compare n s negligence with each A s share of negligence barring recovery from a specific A if n is more negligent that an individual A Comparative Fault Analysis Courts will assign percentages of responsibility based on the nature of each person s conduct 0 How unreasonable under circumstances Extent to which conduct didn t meet legal standard Circumstances surrounding conduct Each person s abilities and disabilities Each person s awareness intent or inadvertence 77 0000 0 Will also evaluate the causal connection between the conduct and the harm including timing and comparison of risks Check Last Clear Chance is considered Defenses o l39l s negligence not the proximate cause of the injury 0 l39l s negligence not the cause in fact of the injury lf A s tort is intentional most courts will not apply comparative negligence However if A s tort is willful and wanton or reckless most states will reduce n s damages by his negligence Courts are split about whether Last Clear Chance applies in comparative negligence Most say that it doesn t apply so n s recovery is reduced by their fault even if A had a last clear chance SeatBelt Defense A majority of courts accept the defense that n s injuries from a car accident could have been reduced or entirely avoided had TI worn a seat belt 3 approaches 0 A liable for only those injuries that would have occurred had TI worn seat belt 0 A liable for all injuries with reduction by of 1139s fault o A liable for all injuries but n s fault reduces recovery for injuries that would have been avoided lmputed Comparative Negligence The fault of one person A may be imputed to another B as to reduce their B s recovery 0 quotBoth Ways Rulequot The negligence of another person is imputed to a plaintiff whenever the negligence of the other person would have been imputed had the plaintiff been a defendant when they were vicariously liable EmployerEmployee If an employer sues for damages from an accident involving their employee any fault by the employee will reduce the employer s recovery However any fault attributable to a child s parents won t reduce the child s recovery against the third person because the parent would not be vicariously liable for the child s torts if it was the other way around Mitigation after an accident 0 Restatement 3rCI includes the duty to mitigate within comparative responsibility A u must take reasonable action to mitigate and then the jury will assess relative blame for subsequent injury or failure to mitigate 0 Failure to Mitigate has been considered in cases in which there was Failure to take additional tests to ascertain nature of injury Failure to lose weight to decrease back pain after back injury Failure to obtain a recommended mammogram Religious decisions regarding medical care o If the us action is egregious enough the court may hold that the action is a superseding proximate cause of the accident 78 DEFENSES ContributoryComparative Negligence Case Law Contributory Negligence Classic Approach If P was negligent at all he cannot recover Butter eld v Forresterp 628 D negligently left a pole in the roadway P negligently rode a horse as fast as his horse could go P barred from recovery due to his contributory negligence This case disguises the harshness of the old contributory negligence rule bc the P s actions are described as grossly negligent Even if he had been minimally negligent he would still have been barred from recovery Defense Argue that P s negligence wasn t a cause in fact or proximate cause of his Injuries Smithwick v Hall amp Upson Co p 631 P worked at an ice house helping store ice He stood on a platform raised 15 feet above ground The platform had a protective railing over a portion of its length D told P not to go on the part of the platform where there was no railing P went and worked on the unrailed part anyway Separately and unrelatedly due to D s negligence the brick wall of the building rising above the platform gave way and struck the Plaintiff causing him to fall off the platform and sustain injury Plaintiff39s negligence was not the cause of his injuries so it doesn39t matter that he was separately negligent by working where he wasn39t supposed to Comparative Neolidence Pure Comparative Negligence Hoffman vjones p 636 Supreme court of Florida abandons Contributory negligence rule and moves to Pure Comparative Negligence Modi ed Comparative Nedlidence Bradley v Appalachian Power Co p 644 Introduces the Modi ed Comparative Negligence rule posits the problem quotunder pure comparative negligence all parties whose negligence or fault combined to contribute to the accident are potential Ds unless a particular party is found to be 100 at fault this is unpracticalquot Unpractical system of justice where a 98 negligent P can sue a 2 negligent D If P is more negligent than D then P cannot recover 79 DEFENSES Assumption of Risk Note that it has been subsumed into comparative negligence A n is said to have assumed the risk of certain harm if they have voluntarily consented to take their chances that harm will occur l39l only assumes a certain risk there must be a causal link between the injury and the risk assumed Where assumption is shown n is completely barred from recovery Express Assumption If n explicitly agrees with A before the harm occurs that n will not hold A liable for harm n has expressly assumed the risk of that harm playing sports 3 exceptions 1 When the A intentionally causes the harm or brings it about by acting recklessly or by being grossly negligent 2 When the bargaining power of A was grossly greater than that of the other party unless the good or service is essential 3 When the court concludes that there is an overriding public interest which demands that the court refuse to enforce the exculpatory clause Comparative negligence has no effect in this case Courts will not enforce contracts that contravene public policy Courts will generally not honor a release when conduct more blameworthy than negligence is involved no matter how clear the release Fine print on the back of a ticket may not be sufficient Courts are split on whether a parent can sign a waiver to relieve A of responsibility for their minor child Implied Assumption u may assume certain risk by their conduct if A shows that n 1 knew of the risk in question and2 voluntarily consented to bear that risk herself 1 Knowledge of Risk The risk must be one actually known by u not merely one that ought to have been known by them The risk also must be fairly speci c 2 Voluntary Consent If u had no reasonable choice but to encounter a known danger because of A s conduct u did not assume the risk Comparative Negligence and Assumption of Risk Often n s assumption of risk is comparative negligence However sometimes H can behave reasonably in assuming a risk so the assumption of risk is not comparative negngnce With the adoption of comparative fault most courts have merged implied assumption of risk into the comparative fault analysis Primary v Secondary Implied Assumption of Risk 80 Primary A was never under any duty to n and the n voluntarily accepts known risks Ex In a sporting event the participants assume the risk of hazards that are inherent to the sport including the ordinary carelessness of other participants Secondary A would ordinarily have a duty to T but TI voluntarily encounters a known risk created by A s negligence OR TI unreasonably accepts a known threat of danger in pursuing a particular course of conduct Under comparative negligence most states eliminate secondary assumption Defenses A court may override n s subjective belief if it finds that as a matter of law any person would know and appreciate the risk Will not excuse willful or wanton negligence intentional torts or reckless misconduct Secondary Implied AOR is not a defense if n is unaware of the risk DEFENSES Assumption of Risk Case Law Express AoR La Frenz V Lake Country Fair Board p 657 P knowing and willingly signed a waiver and release from liability and indemnity agreement P was in a demolition derby killed when a car hit wife in the pit area When permitted by contract law an agreement between the P and another person absolving the person from liability for future harm bars the P s recovery from that person for the harm Contract trumps tort with valid release Implied AoR Primary ones v Three Rivers Management Corp p 668 A lady P is struck by a baseball in a batting practice session P alleges that she could not and did not see the danger partially bc it was an unusually early batting practice P is barred from recovery if D has no Duty because the risks are inherent However in this case the D had a duty and was found liable Auckenthaler v Grundmeyer p 674 P is riding a horse and gets kicked by a recently cated overly aggressive horse Argues that courts should eliminate implied primary and replace it with a reckless rule No Duty unless D is reckless Abolishes the assumption of the risk minority View 81 DAMAGES Indemnity A complete reimbursement of liability in which liability is moved from one A to another A It is usually given when one tortfeasors is less culpable than the other Vicarious Liability If A1 is only vicariously liable for A2 s conduct A2 will be required to indemnify A1 Retailer A retailer who is held strictly liable for selling a defective product will get indemnity from others up the distribution chain the manufacturer 82 DAMAGES Joint and Several Liability If more than one person is a proximate cause of n s harm and the harm is indivisible each A is liable for the entire harm However n is only entitled to a single satisfaction of its claim 1 lndivisible n s harm must not be capable of being apportioned between or among the As If there is a rationally basis for apportionment then each A is only responsible for that directlyattributable harm a lndivisible harms include those in which i Two As have acted in concert ii The n dies or suffers any single personal injury iii l39l s property is burned or otherwise destroyed b Divisible harms includes those in which i Harm occurred in successive incidents separated by substantial periods of time ii When A2 s negligence is in response to A1 s negligence A1 is liable for the harm of bother its acts and A2 s acts but A2 is only liable for his own acts iii Note the burden of allocating damages is on the As in these cases As comparative negligence has replaced contributory negligence there has been a growing trend to cut back or eliminate joint and several liability Modern adaptations include A Hybrid schemes that combine aspects of joint and several liability with aspects of pure several liability a Hybrid joint and Several Liability with Reallocation all As are jointly and severally liable but if one A turns out to be judgment proof the court reallocates the damages to all other parties including n in proportion to their comparative fault H and As share the burden of the insolvent A b Hybrid Liability based on Threshold Percentage A tortfeasors who bears more than a certain threshold percentage of the total responsibility remains jointly and severally liable but tortfeasors whose responsibility is less than that threshold are merely severally liable c Hybrid Liability based on Type of Damages Liability remains joint and several for economic damages but only several for noneconomic damages B Some states have Pure Several Liability in which a A is only every liable for their share of total responsibility 83 DAMAGES Contribution If two As are jointly and severally liable and one pays more than his pro rata share he may usually obtain partial reimbursement from the other A Most comparative jurisdictions have statutes for contribution as a percentage of fault Each joint and severally liable A is required to pay an equal share However in comparative negligence states the duty of contribution is usually proportional to fault Limits An intentional tortfeasors may not get contribution from his cotortfeasors even if they also were intentional The tortfeasors being sued for contribution must be liable to the original u If A1 has an immunity that prevents him from being liable to n A2 cannot get contribution from him Settlements If A settles he may get contribution from other potential As if he can prove that they would be liable to n If one A settles and the other A pays a judgment from court there are two approaches to getting contribution from the settling A 1 Traditional Rule Settling A still liable for contribution This is problematic bc it reduces a A s incentive to settle 2 Reduction of n s Claim Most courts deny contribution to nonsettlers from a settler but reduce the amount of n s claim against the non settlers to re ect the settlement Use one of two methods to determine reduction amount a Pro Tanto Reduction Reduce n s claim by the dollar amount of the settlement i Apportionment Settling amount is deducted from the judgment amount according to the percentage of responsibility the settling party had Ex Where D1 is 40 responsible D2 is 40 responsible and D3 is 20 responsible and D3 settles with P before trial In a 1mi judgment the rst two Ds collectively pay 800000 their collective percentage of responsibility Has nothing to do with how much the settling party paid P b Proportional Reduction Reduce it by the proportion that a settling As responsibility bears to the overall responsibility of the parties i Dollar for Dollar SetOff Texas Rule taken off the top The settled amount is set off from the judgment amount Ex Using above example imagine D3 paid 100000 to P in settlement before trial Here D1 and D2 will pay the remaining 900000 according to their percentage of fault since they were both 40 liable they will split the verdict If there was a huge settlement with D3 on the other hand D1 and D2 may pay very little or nothing 84 DAMAGES Group Liability Acting in Concert If multiple Ds can be said to have acted in concert each will be liable for injuries directly caused by the other even if the harms caused by each are divisible Market Share Liabilitv Cause infact Problem Pure Several Liability for D5 P must meet the burden of joining the required Ds so that the D5 comprise a substantial share of the market Burden then shifts to the D5 and they are liable for their market share of the product unless they can prove it was not their product that injured the P a National Market Share is the standard b Pure Several Liability only c Rejected for socially valuable products the more socially valuable a product the less likely it is to apply a market share doctrine d Rejected for lnfungible Products When products re slightly different from one another courts are reluctant and most will not use market share liability Sindell v Abbott Labratories p 732 Women brought class actions against drug companies seeking to recover for injuries sustained as a result of drug DES to their mothers during pregnancy Trial court dismissed the action Appeals ct holds that although speci c manufacturer of drug DES which was administered to plaintiff s mother during pregnancy causing plaintiff s injuries could not be identi ed plaintiff could hold liable the manufactures of the drug which was produced from an identical formula liable for her injuries upon a showing that the manufacturers produced a substantial percentage of the drug in question with each manufacturer being liable for the proportion of the judgment represented by its share of the drug market unless it demonstrated that it could not have made the product which caused the P39s injuries e Exceptions to cause infact exception by preponderance of the evidence i Alternative Liability summers v tice ii Defendants acted in Concert joint enterprise iii Industry Wide doesn t work much anymore iv Market Share Liability Key difference D s only Severaly Liable 1 Different from alternative liability bc with alternative all Ds were negligent to P but only one caused injury In market share only one D was negligent with respect to the individual P Shackil V Lederle Labratories p 749 Child and her parents eld negligence breach of warranty misrepresentation and strict liability action against manufacturers of 85 combination diphtheriapertussistetanus vaccine after child who was inoculated allegedly suffered seizure disorder that resulted in chronic and severe retardation Ct nds that injuries were caused by a Manufacturing Defect Sindell logic doesn39t work because only one of the defendant39s is liable they all didn39t do something wrong This is not a fungible good not all products were identical all companies made it differently f Three ways a product can be defective i Manufacturing Defect only some tires bad ii Design Defect all tires bad iii Warning Defect didn t properly warn consumers about risks DAMAGES Nominal Awarded when a legal wrong has occurred like an intentional tort and when no actual injury has resulted or can be proven Nominal Damages are usually trivial in amount Compensatory not taxed designed to make you whole Two Categories of Compensatory Damages 1 Special and General 2 Economic and NonEconomic 3 Pecuniary and NonPecuniary Special Damages The kinds of damages you can put a dollar amount to lost wages medical costs etc General Damages The kinds of damages you cannot put a value on pain and suffering Theories behind Compensatory Damages Corrective Justice make the bad guys pay Deterrence Economic Efficiency if you have to pay for a behavior you may not do that behavior again Types of Compensatory Damages Lost Earnings Earnings the P was sure to have made but for the tort Earnings Capacity Ps don t just get what their projected earnings are but also their earnings capacity Some courts require that you prove you would have done a certain job others do not 86 Medical Expenses P is entitles to compensation for all medical costs of diagnosing and treating injuries from the tort Under Single Recovery Rule P must also offer proof of what future medical expenses will be Pain and Suffering NonEconomic and Intangible Damages 0 Includes both physical and mental pain and suffering 0 Mental Distress P may reover for various mental consequences of the injury includingquot Fright and show at the time of the injury Humiliation due to dis gurement disability etc Unhappiness and depression at being unable to lead one s previous life 0 Loss of Enjoyment of Life Courts recognize this loss of compensable damages but are split over whether damages for loss of enjoyment are analytically a type of pain and suffering or a separate element Collateral Source Rule Even is P is reimbursed for injuries by an independent source health insurance etc The general rule is that as long as payment for any aspect of the harm is not made by the D or by someone acting on his behalf D s insurance company then P s recovery from D is not diminished by the amount of these payments Suborgation Clause if insurance company pays and P then wins the money from the D then the insurance company gets reimbursement Preexisting Injuries Need to look at what it means to the P to go from 30 injured to 90 injured 0 If ne at 30 but cant function at 90 D has to pay all 0 If injured at 30 and only slightly more injured at 90 D only pays the difference Eggshell Skull Rule Take the victim as you nd them but you only have to pay for injuries you cause P has a duty to Mitigate Damages Loss of Consortium Family members have claims for loss of consortium for injured family members must be a direct enough relationship between the direct victim and the plaintiff looking to recover for loss of consortium HusbandWife 0 Virtually all jurisdictions allow spouse to see several speci c items of damages Loss of companionship and society Loss of household services Child39s loss of parental consortium 0 Child can seek damages for injury to parent Parent39s loss of consortium and services resulting from nonfatal injury to child 0 Most jurisdictions do no allow parents to get damages for consortium for injury to their child 0 Roberts v Williamson Parents could not recover for the loss of consortium of their child because of lack of reciprocity 87 NonPecuniary Damages Immeasurable Damages Pain and SufferingLoss of Enjoyment General damages include Pain amp Suffering and Loss of Enjoyment of Life Hedonistic Damages 0 Most courts now allow a jury to award hedonistic damages for the loss of ability to enjoy life 0 Consciousness Required Some courts deny pain and suffering damages if the P is comatose or in a vegetative state because the P is unaware Others allow recovery 0 McDougaId v Garber Mother not allows to recover for loss of enjoyment and pain and suffering because she was left in a comatose state If you cant appreciate the money why give it at all Should there be two different categories for 1 loss of enjoyment of life and 2 pain and suffering Court says no Wrongful Death Green v Bittner Young girl is killed in a car accident Parents seek to recover damages for expected economic contributions the young girl would have made Quanti able damages allowed for wrongful death but no nonpecuniary damages allowed Opposed to the TX rule where nonpecuniary damages are allowed Cause of Action is in the Estate Survival Action Parents Children and Spouses can bring a wrongful death claim 88
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