VanCamp v. McAfoos - Little boy runs into back of women’s leg while riding his bike Ct says no

liability without fault- fault = cause and blameworthiness

o system requires fault: not enough to just cause harm- ***lawyer didn’t allege fault because he didn’t think he could prove it at

trial

INTENTIONAL TORTS:

Intent: a person acts with intent to produce a consequence if: RS 11. The person acts with the purpose of producing the consequence, (has a

desire, a goal, and aim to bring about the consequence) OR2. The person acts knowing that the consequence is substantially certain

to result. (substantially certain = about 98% certain)*the purpose to cause harm makes the harm intentional even if harm is not substantially certain to occur. RS 1 comment C*knowledge that harm is substantially certain to result is sufficient to show that the harm is intentional even in the absence of purpose to bring about that harm. (must be aware of the likelihood of harm) RS 1 comment C

3. Transferred intent: if D desires to produce any consequence forbidden by law with respect to any person (or if he knows that its substantially certain to occur) he acted intentionally even if a different consequence occurs of a different person is harmed.

*Mentally ill, insane, under influence of alcohol/drugs, children treat as if they had full legal capacity

Recklessness: a person acts recklessly in engaging in conduct if: RS 21. The person knows of the risk of harm created by the conduct or knows

facts that make risk obvious to another in the persons situation, OR2. The precaution that would eliminate or reduce the risk involves burdens

that are so slight relative to the magnitude of the risk as to render the failure to adopt the precaution a demonstration of the person’s indifference to the risk.

Garret v. Daily little boy pulls chair out from under old lady and she falls and is injured.

- little boy did not have purpose intent but he had knowledge intent

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BATTERY: RS 13 pg. 19 intentional infliction of a harmful/offensive bodily contact.

PURPOSE: right of persons to be free from bodily invasions

An actor is subject to liability to another for battery if:1. He acts intending to cause a harmful or offensive contact with

another, or an imminent apprehension of such a contact, ANDa. Single Intent Rule D intended to touch pro-plaintiff b. Dual Intent Rule D intended to touch and intended touch to be

harmful/offensive pro-defendant c. *****on exam: apply whichever rule helps your client the most! d. INTEND THE CONTACT liable for ALL consequences

i. Ie.) Paul intends to trip Peter and does trip Peter. Peter subsequently falls over the railing and breaks his back. Paul is liable for all injuries even though he only intended the trip.

*****on exam: apply whichever rule helps your client the most!

2. A harmful contact with the other person directly or indirectly results.

a. Harmful = any physical impairment of the condition of another’s body, or physical pain or illness.

b. Offensive = when the contact offends a reasonable sense of personal dignity.

i. No comment about if D acts knowing that he will offend another’s known, but abnormally acute sense of personal dignity.

ii. Offensiveness judged at the time of the battery iii. Contact can be indirect (like lacing someone’s drink with

poison)

P must prove:1. D acted intentionally2. That P suffered a harm or offense3. That the harm/offense involved a touch

a. Touch has to be to P’s body – D can use an agent to harmfully/offensively “touch”

b. P’s body includes anything P is holding or touching (extended personality rule)

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Court Boyle CounterAs between 2 innocents, the one who caused the injury should pay.

Moral No liability w/o fault (Van Kamp v. McAffoos)

We have to hold insane people liable bc otherwise D’s would fake insanity.

Judicial Administrability You weight insanity all the time in criminal cases

We have to hold insane people liable bc to encourage their relatives to restrain them

Deterrence / Social Utility It will encourage family to “over-restrain” them

If an exception should be made, it should be made by the legislature

Institutional Competence Rules for battery have been established by cases, you interpret all the time

ASSAULT: D commits an assault if he intentionally puts P in reasonable apprehension of an immediate battery. RS 21 pg. 23

PURPOSE: right of persons to be free from fear of unwanted invasions of the body.

P must prove: 1. Intent

a. D acted with the purpose of causing fear of contact ORb. D acted with substantial certainty that fear would occur

i. Ex. Baseball player warming up throws baseball towards a fan standing in infield, looking at player throw towards him. Even though baseball player didn’t intend to hit him – he could be substantially certain that the fan would be afraid of being hit.

c. D can intend to place P in fear or intend a battery on P that fails, but still put P in apprehension

2. Reasonable apprehension of battery (apprehension = reasonable knowledge)

a. Contact feared needs to be harmful/offensive if actually did happen battery analysis.

b. P can see harm coming and then be actually harmed and have claims for assault (for the moment when the harm was coming) and for battery (when the harm actually touched)

3. That the battery was imminent (battery was going to happen right now)

a. A threat of future harm ≠ assault

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b. Mere verbal threat probably cannot constitute an assault because it lacks the immediacy of a battery D usually needs to “make a move”

c. Conditional threats are assaults RS 30 pg. 25i. Ex. “If you don’t leave the track, I’ll beat you up!” this is still

an assault because P should not be forced to do something because of fear of battery.

ii. CONDITIONAL THREATS STILL HAVE TO BE IMMIMENT

Cullison v. Medley: threatening to kill P coupled with grabbing at pistol constitutes assault. (would change if P had knowledge that gun was unloaded, because then battery would not be imminent.)

FALSE IMPRISONMENT: RS 35 pg. 27

PURPOSE: Safeguard one’s right to be free of restraint on one’s freedom of movement, to be able to “go freely through the world”, and the right not to be confined against one’s will.

D is liable for false imprisonment if:1. He acts intending to confine another within boundaries fixed by him

ANDa. Carelessness is not enough! D must intend to confine or be

substantially certain that confinement will result from his conduct.b. D does not have to intend to confine maliciously! Can be a prank

etc. 2. His act directly or indirectly results in confinement AND

a. Confinement can be for a very short time! b. Confinement does not have to be spatial can confine

movements alsoi. Ex. D’s force P at knifepoint to go to the ATM and take out

money. This is confinement. 3. The other is conscious of the confinement or is harmed by it.

P must prove:1. Intent to confine 2. An act of restraint

a. Can be a physical act of locking in a space.b. Threats of bodily harm can constitute restraint even if a door is

open. (threats must be plausible)c. D confiscating items of significant value can be act of constraint if

P would reasonably remain in order to get them back and if the intent of taking it was to make P remain.

3. Resulting confinement of P within a bounded area

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a. Test: whether the possible exit is a reasonable means of escape? i. If reasonable means of escape P is not confined.

1. NOT reasonable = circumstances are such as to make it offensive to a reasonable sense of decency or personal dignity.

a. Ex. Locked in locker room without clothes. Only way out is door into the public, but you’re naked. This is confinement bc unreasonable to make you go into public naked to escape confinement.

McCann v. Walmart & Hardy v. LaBelle’s Distribution Co.: - Considerations of whether P remained voluntarily or by duress: weigh

the surrounding circumstances # of people confronting P, economic of legal power over P (boss or police officer), what said by those present during the encounter.

Privileges evoked to commit acts that otherwise would be FI:1. Consent

o Generally if a person stays to “clear up” something, etc.o Hardy v. Labelle’s Distributing Co. (consider whether P chose to

stay or remained because of implied threats, etc.) consider things like power dynamic, who’s present, etc.

o Whether there was true consent or coercion and whether the confinement exceeded scope of consent?

2. Shopkeepers Privilegeo Recapture of Chattels have to be in “hot pursuit” and “act at

your peril”.i. only have a right if you are correct that that person has

taken one of your chattels. ii. Shopkeepers Privilege: codified version in Gortarez v.

Smitty’s (store owner puts kids in chokehold for thinking they stole 59 cent air freshener).

1. Reasonable cause for detention2. Reasonable manner of detention3. For a reasonable length of time4. Only for the purposes of questioning or summoning

the police iii. RS has a shopkeeper’s privilege but limited to detention on

the premises which poses a problem for small, city stores who own no land outside of the literal store.

3. Arrest o You have a privilege to detain someone if either you have a

reasonable belief that they have committed 1) a felony or 2) a breach of peace in your presence.

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i. RS says if you are mistaken about the felony there is no privilege, but if you are only mistaken about the perpetrator, the privilege still exists.

***RS gives privilege to use self-defense to escape confinement but don’t have to! Can still have a claim even if you could reasonably use self-defense to escape and choose not to.

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS: RS 46 pg. 230“An actor who by extreme and outrageous conduct intentionally or recklessly causes severe emotional harm to another is subject to liability for that emotional harm and, if the emotional harm causes bodily harm, also for the bodily harm.”

P must show:1. D acted either intentionally or recklessly 2. D engaged in extreme or outrageous conduct AND3. As a result, P suffered severe distress

a. Most cases deal with element 2 RS pg. 231 actor is liable only if the conduct goes beyond the bounds of human decency such that it would be regarded as intolerable in a civilized community.

GTE v. Bruce : creepy ex-military supervisor who harassed his employee over extended period of time.

- Respondeat superior enlisted in this case even though its an intentional tort because D was acting for reasons he believed to be within the scope of his employment.

- Consider power dynamics when determining ED:o Potential argument: distinguish legally established power

dynamics (parent-child, boss-employee, cop-citizen, teacher-student) from socially constructed dynamics (male-female, white-black, rich-poor, WASP-not WASP, straight-gay) to prove / disprove the likelihood of emotional distress from D’s conduct.

Homer v. Long: P’s wife’s physiatrist seduced her and then she divorced P. (3rd party IIED D directs conduct at A, P is distressed over it)

- For P to recover in triangle scenario:o 1. P must be present ANDo 2a. Must be a family member of person who D is directing

conduct at OR 2b. P must suffer a bodily harm from D’s contact at 3rd party (bodily consequence of the emotional harm; ex. Heart attack from the stress of the incident)

- P did not recover because he wasn’t present when the outrageous conduct was directed at his wife.

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Why have requirements for 3rd party IIED claims? Why not transferred intent?1. Don’t overwhelm courts with claims (esp. when public figure is assassinated,

etc.)2. Limit D’s liability an act ought not have consequences that are infinite in

liability. 3. Transferred intent is not about logic, it’s just a name for an accident and

court’s are more likely to set aside a legal fiction when they have a competing interest such as 1 and 2.

Helpful evidence in proving P’s emotional distress: (although there is no requirement and all that is needed is P testifying under oath that she suffered emotional distress)

- Medical testimony- Missed work- Avoiding perpetrator- Symptoms of Distress (weight loss/gain, sleeplessness, drinking/drugs,

etc.)

Typical patterns of conduct that make finding of IIED more likely:- Was D’s conduct continuous and ongoing?- Was there an abuse of authority? (keep in mind some court’s stress

that supervisor’s must have latitude to discipline employees like GTE, even though he was still liable because of totality of factors).

- Did D target P’s specific sensitivities?

SELF-DEFENSE AND DEFENSE OF 3 RD PERSONS: RS 63 pg. 41

Defenses:1. Refute P’s prima facie case by arguing that an element is not present2. Present an affirmative defense or privilege as an “Even if…”

argumenta. Self-defenseb. Defense of othersc. Defense of property / landd. Discipline Privilegee. Consentf. Public Necessityg. Private Necessity

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Self-defense = affirmative defense D’s duty to prove its applicability

PURPOSE: Prevent/forestall an impending battery / prevent further intrusion that cannot be avoided by waiting for legal redress.

***limits on self-defense reflect policy that seeks to minimize use of force as a means of self protection USE THE COURT SYSTEM INSTEAD!

- “An actor is privileged to use reasonable force, not intended or likely to cause death or serious bodily harm, to defend himself against unprivileged harmful or offensive contact or other bodily harm which he reasonably believes that another is about to inflict intentionally upon him.”

- In order for D to invoke a protective privilege, tortious behavior must be in response to an imminent threat D must act “in the heat of the moment”

o D must reasonably believe that there is an imminent threato CANNOT be in retaliation does not authorize to meet force with

forceo CANNOT evoke self-defense against threats of future harm o Turns on whether D reasonably believes that the amount of force

used was necessary to thwart the battery.- Privilege of self-defense is triggered by “reasonable belief”

- Duty to retreat? o RS definition

Yes, you must retreat if you propose to use deadly force (if retreat is feasible)

No, you may not retreat if you propose to use non-deadly force

o Common Law Party entitled to self-defense generally has no duty to

retreat (stand-your-ground) UNLESS case involves deadly force, then there is a duty to retreat.

EXCEPT when D is in his own home, then he has no duty to retreat even in cases of deadly force.

^^^Force used still must be ONLY THAT FORCE THAT D REASONABLY BELIEVES IS NECESSARY TO THWART THE ATTACK.

Other J’s have different rules regarding duty to retreat. - Force must be proportional to the threat to escape liability force

necessary under the circumstances. - Privilege extends to 3rd party under the same conditions that it extends to

self. RS 76 pg. 46

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Defense of Others 3rd party has the right to use as much force to protect party about to be harmed as party about to harmed would be able to use to defend himself.

- Ex. A about to use nondeadly force vs. B C could use reasonable, nondealy force to defend B

- MISTAKES: 2 approacheso 3rd party is privileged if he reasonably believes person is being

attacked (even if he’s not)o 3rd party is privileged only if 3rd party is actually being attacked

Defense of Land can defend property like you would your person RS 77 pg. 47 - Can use nonlethal force to prevent/terminate a trespass if:

o 1. Intrusion is not privileged o 2. Actor reasonably believes that the intrusion can be

prevented or terminated only by the force used, ANDo 3. Actor asks the other to desist and other disregards the

request. May use reasonable force to dispel intruders on property

after you ask them to leave OR if D reasonably believes that asking intruders to leave would be useless.

Katko v. Briney: (life is more valuable than property) Spring gun in barn house shoots off P’s leg. D tries to use defense of property defense. Denied because can’t use lethal force to defend property. RS 84 pg. 48

- D may employ device not intended or likely to cause death/serious bodily harm to a deliberate intruder if:

o Use of such device is reasonably necessary to protect the land from intrusion AND

o The use of the particular device is reasonable under the circumstances AND

o The device is one customarily used for such a purpose, or reasonable care is taken to make its use known to probable intruders.

- Exception: RS 85 pg. 50 **Counter argument to “life is more valuable than property”: Gov’t values human life at 6 million, could have property worth more than 6 million dollars.

****PRIVILEGES DO NOT PERMIT A PARTY TO INFLICT INJURY ON INNOCENT BYSTANDER (intentionally) ex. Can’t throw someone to the wolves chasing you so that you have more time to get away while they’re eating him.

^^^IF PERSON ACCIDENTALLY INJURS INNOCENT PARTY IN COURSE OF ENGAGING IN LEGITIMATE REASONABLE SELF-DEFENSE no liability.

Discipline Privilege extends to parents and those acting in loco parentis

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- (Thomas v. Bedford: kid annoyed teacher and teacher retaliated by throwing board at student and pulling him out of class and punching him multiple times). Privilege did apply here but D still loses because conduct was unreasonable

- Privilege allows parents to engage is reasonable acts of discipline - Policies for having a discipline privilege?

o Parents discipline to educate childreno To deter children from behaviorso Kids would have too many claimso Parental autonomy over the family

Consent RS 892 pg. 50- Consent is willingness in fact for conduct to occur. It may be manifested

by action or inaction and need not be communicated to the actor.- If words or conduct are reasonably understood by another to be intended

as consent, they constitute apparent consent and are as effective as consent in fact.

o O’brien v. Cunnard case where the 18 y/o Irish immigrant allowed the Dr. to vaccinate her then sued for battery. Ct found 2 kinds of consent thru her actions: 1. Custom and 2. Through body language. (even though she remained silent)

o Test is how the conduct would reasonably be interpreted - Express consent = explicit statement by P giving D permission to act in a

way that would otherwise be an intentional tort. - Implied consent = certain customs should be known to P and the law

assumes that P knows these customs. o (ex. A game of football and P gets tackled, probably not battery; a

night on the couch with wine and discussion, D leans over and kisses P, probably not a battery, etc.)

o CONSENT CAN BE REVOKED must be given under circumstances where the other party can reasonably respond to the revocation.

o D CAN EXCEED SCOPE OF CONSENT ex.) When you shop you have permission to be in the store area, but if you enter the manager’s office, you have exceeded the scope of the shop-owners consent and can be liable for trespass.

****Consider arguments that deal with what the precise scope of consent was!

- Consent is NOT a defense when:o Consent under duress ≠ no consent o P lacks the capacity to consent

Drugs/alcohol Age Mental infirmity

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o Obtaining consent through misrepresentation of facts ≠ no consent (can also be withholding information like in Doe v. Johnson, sexual partner withheld communicating that he either had or likely had HIV)

Public Necessity RS 196 pg. 53- Deals with the interests of the public.- One is privileged to enter land in the possession of another if it is, or if the

actor reasonably believes it to be, necessary for the purpose of averting an imminent public disaster.

Private Necessity RS 197 pg. 54- Person confronts an emergency that poses a threat to only his own

interests. o Law resolves through a COMPROMISE. D has to pay

compensatory damages for the harm caused using other’s land. (If no damage done to other’s property, D doesn’t have to pay anything.)

- One is privileged to enter or remain on land in the possession of another if it is or reasonably appears to be necessary to prevent serious harm to:

o The actor, his land or chattels ORo The other or a 3rd person (and their property), unless the actor

knows or has reason to know that the one for whose benefit he enters is unwilling that he shall take such action.

o Actor is liable for any harm done when the trespass is for his benefit.

Property owner not allowed to kick D off land until the emergency subsists.

Ploof v. Putnam Ploof’s sailing when storm hit so tied boat to Putnam’s dock. Putnam’s servant untied boat and boat and Ploof’s were injury. Ploof’s sued Putnam. Court found for Ploof’s because Putnam had no right to dispel them until the storm had passed.

Surocco v. Geary no liability imposed on man who exploded another’s house to create a firebreak. PUBLIC NECESSITY Vincent v. Lake Erie liability imposed on ship-owner who moored his boat to a dock during a storm and caused damage to the dock. PRIVATE NECESSITY

Why do we have these rules?- Public Necessity: no liability because we want people to take action - Private Necessity: imposing liability on a private person for harmful

trespasses forced the actor to internalize the externality. (Rules encourage people to take the least costly course of action)

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o Coase Theorum: any assignment of rights by the legal system will be efficient, provided that there are no transaction costs. The law should aspire to proximate the deal the parties would have made.

Ie. If you have a dock worth $1,000 and a boat worth $500 the more valuable thing should be preserved. The dock owner would have paid more to keep the boat from harming his dock. Because the cheaper boat harmed the more expensive dock, the boat owner must pay.

Better to bargain outside of the legal system. How much can I pay you to deal with smoke so I

don’t have to move my factory?o Need 2 partieso Damage needs to be pending / continuous

(not already done)

NEGLIGENCE:Any conduct that creates an unreasonable risk of harm to others is actionable when that risk comes to fruition in actual harm.

Negligence = the tort negligence = the act of breach / risky conduct / synonym for breach / etc.

Elements:1. Showing that D owed a duty of care to P and specifying what the duty of

care requires under the 2. Showing that D breached that duty 3. Showing that the breach factually caused the P’s harm4. Showing that the P’s harm was within D’s scope of legal responsibility

or that D had sufficient proximate Causation5. Showing that P suffered some damages

DUTY: judge gets to decide if one exists!(always think of policy and real-world implications of extending a duty)

General Duty: exercise the degree of care that would be used by a reasonably prudent person under the same/similar circumstances. (RPPUSC)

- “Same/similar circumstances” provision gives jury CONSIDERABLE discretion

o AMOUNT of care changes with the circumstances but the STANDARD never changes be reasonable under the circumstances.

RS Duty: §7 (RS 3rd physical and emotional harm)

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- An actor ordinarily has a duty to exercise reasonable care when the actor’s conduct creates a risk of physical harm

- In exceptional cases, 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 required modification.

- Things that count as circumstances jury should consider when constructing the RPPUSC:

o Dangerous instrumentality Stewart v. Motts (case where they take out the

carburetor and pour gas into it) no different instruction beyond “ordinary care” when dealing with gasoline because the gasoline is included in the circumstances constructing the RPPUSC

o Sudden, unforeseen emergency, not of your own making Posas v. Horton emergency instruction did not apply

here bc D admitted that she was following too close and an RPPUSC would be prepared and aware that persons/things might enter the roadway at any time

Some J’s use emergency instruction while others just factor it into the circumstances to be considered by juries. (emergency instructions often telegraph to juries that they should find for D)

o Physical disability Shepherd v. Gardner Wholesale, Inc : P tripped over raised

concrete but she had cataracts. (“Ordinary care is such care as an ordinarily prudent person with a like infirmity would have exercised under the same or similar circumstances.”)

o Mental illness when P is a caregiver (not a factor to be considered when P’s are not D’s specific caregiver)

Creasy v. Rusk : D had Alzheimer’s and owed no duty to his caretaker

o Superior skill, experience, or knowledge Cervelli v. Graves : man with lots of truck driving experience

in snowy climates took unnecessarily aggressive moves resulting in crash Although the reasonable man standard provides a minimum standard below which an individual's conduct will not be permitted to fall, the existence of knowledge, skill, or even intelligence superior to that of an ordinary man will demand conduct consistent therewith

Superior knowledge can be of one isolated nugget, ie. a stupid man can still have superior knowledge or experience with one thing.

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If you’re smarter standard more demanding If you’re dumb standard doesn’t change

o Being a child and the special attributes of the specific child Held to standard of hypothetical child of similar age,

experience, and intelligence Except: children engaging in inherently dangerous

activities get the standard adult RPPUSC (Robinson v. Lindsay: kids riding on snowmobiles and P gets thumb cut off)

Why factor in physical characteristics and not mental ones?- Mental illness/stupidity are easy to fake but physical disabilities are very

hard to fake (judicial administrability)- If you’re going to say something “counts” the jury needs to be able to

empathize with it – how can the jury see through the eyes of an insane person to determine if they acted as an reasonably prudent insane person if the jurors are not insane?

- Wide birth argument: mental illness can be unrecognizable so you don’t take the steps to avoid injury to yourself or them that you would with someone with a recognized infirmity.

- Things that don’t count as circumstances jury should NOT consider when constructing the RPPUSC:

o Low intelligenceo Mental illness/ mental disability / insanityo Being a child doing an adult activity

Robinson v. Lindsay case where the child was operating a snow mobile with another child (D) and he crashed and caused D to injure her hand. Ct said, no child standard of care because child was doing an adult activity / inherently dangerous activity.

o Old age (but kind of counts if old-age related infirmities are physical disabilities)

Child Standard of Care: SUBJECTIVE STANDARD - Most J’s Children under between 4-7 have NO DUTY (RS says children

under 5 have no duty)- Over 4-7 Duty = the care of a hypothetical child of similar age,

experience, and intelligence, acting under similar circumstances. o Policy reasons for child standard of care:

Children need freedom to experiment, grow, and learn so should be judged on a more flexible standard

Children generally confine themselves to activities that are not likely to cause a great deal of harm

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Children are less capable of appreciating risks and be aware of alternative (less-risky) courses of conduct

- Child standard of care does NOT apply when child is doing an adult activity / inherently dangerous activity.

o When doing this RPPUTSC standard applies

Professional Malpractice Standard of Care: NEED A SPECIAL STANDARD OF CARE BECAUSE JURY DOES NOT HAVE ENOUGH KNOWLEDGE / FAMILIARITY WITH TRADES TO DETERMINE WHAT AN RPP WOULD BE IN THE SPECIFIC TRADE. (ex. Jury can’t know how an RPP doctor would perform an appendectomy)

- RS 299A: “One who undertakes to render services in the practice of a profession or trade is required to exercise skill and knowledge normally possessed by members of that profession or trade in good standing in similar communities.”

- ^^^^^ CUSTOM! o Requires expert testimony in all cases to explain professional

custom to the jury o “Similar communities” many J’s have abandoned locality rule

for specialists. For primary care doctors and other generalists, J’s are split between national standard or strict/modified locality rule.

- Teachers owe students NO DUTY OF CARE! o Policy reason = too difficult to determine if the teacher was bad or

if other factors played into student’s underachieving. - Medical Professionals have duty of custom AND special duty of

doctrine of informed consent. o Dr. required to inform patient, prior to procedure, of:

Risks associated with procedure Its necessity Alternative forms of treatment

J’s are split over whether Dr.’s required to disclose info commonly disclosed by other Doctors (custom) or info considered to be “material” to patient’s decision to undergo procedure.

o Dr. NO DUTY TO DISCLOSE: Risks that are common knowledge Risks in general when the patient lacks capacity to

understand the information (but duty to disclose to a guardian)

Risks when it is an emergency Disclosure that would be medically harmful to the patient

(therapeutic exception) Experience levels

o For P to recover under doctrine of informed consent:

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P must show that had the proper information been disclosed, neither he nor a RPP patient, would have undergone the procedure.

BREACH: the most specific the duty, the less work that needs to be done to evaluate the breach!

RPPUTSC Considers:- Foreseeable risks of injury that his conduct will impose - Extent of the risks posed by conduct- The likelihood of the risk actually causing harm- Alternative to proposed conduct which would achieve the same goal but

with less risk involved- The cost of various courses of action

P must:1. AUC Show some specific wrongful conduct (act or omission) and

convince the jury that this conduct did actually take place. 2. Persuade the jury that this conduct falls below the established

standard of care. (ie. show what a reasonable person would have done that D did not do.)

Question of breach hinges on REASONABLENESS OF CONDUCT:- Assessing reasonableness:

o Custom Can be used as evidence by P or D

T.J. Hooper Lost cargo in storm. AUC was that boat didn’t have radio on board and if he had, he would have known about storm and secured boat and not lost cargo. D offered evidence that most tug boats didn’t have radios. Court held that this was still a breach because it wouldn’t have been expensive to get a radio and having one would have been an effective way to avoid loss of cargo. (cost/benefit analysis) “In most cases, reasonable prudence is in fact common prudence” but this is not one of those cases.

Indiana Consolidated Insurance Co. v. Mathew brother started fire in brother’s garage, causing it to burn down. AUC was that 1. D started mower in enclosed area and 2. D failed to push burning mower out of garage. Court held that “it is reasonable to do what is customarily done” and starting mower in garage is custom so not unreasonable (no breach).

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Court also held that “it’s reasonable to value life over property” and not pushing mower out was not unreasonable. (no breach).

Pipher v. Parsell passenger grabbed wheel in car causing it swerve and driver and other passenger laughed. Passenger grabbed wheel again and caused a crash. AUC was that 1. D failed to admonish passenger, 2. D failed to tell passenger to get in back seat, 3. D failed to kick out passenger. Court held, “reasonable people take greater precautions to avoid foreseeable harms” and thus held D liable.

CUSTOM IS NOT DISPOSITIVE WHAT’S CUSTOMARY CAN BE UNREASONABLE!

o Cost Benefit Analysis: “It’s reasonable to do nothing when [danger is obvious] the

other person can take care of themselves.” Stinnett v. Buchele D hired P to work on roof and

P fell off and sued. AUC was that D failed to provide safety equipment to P. Court held that it was not unreasonable for D not to provide P with safety equipment because P knew of the need for safety equipment and P didn’t ask D to provide it.

“Reasonable people spend small amounts of money to mitigate large amounts of risk.”

Bernier v. Boston Edison Co. AUC was failure to build sturdier light pole. Court held that because it would have cost D $5.75 to reinforce the concrete, it was unreasonable (breach) that they did not.

o Rebuttal is that that cost is actually $5.75 per pole + labor (not actually cheap). Rebuttal to rebuttal was that this accident occurred in very high traffic area so should have at least reinforced in high traffic areas.

US v. Carol Towing Co. “Reasonable people take a precaution when it is cheaper to do so”

D’s duty in controlling the barge was a function of 1) the probability that the barge will break free 2) the gravity of the resulting injury if it does break free and 3) the burden of adequate precautions (having a bargee on board). D must take precaution against injury if the burden of doing so is less than the loss if the injury occurs multiplied by the probability that it will occur.

Lerned Hand Formula B < P x L” B = burden (cost) of taking the precaution

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P = probability that an injury will occur without the precaution

L = magnitude of injury or loss If B side is less than PxL side D should have

taken the precaution (bc burden would be less than the probability times the loss)

o Example: P mugged in parking lot of store and P alleges that store owed duty to exercise reasonable care to protect her from the mugger (third party source of harm) bc she was invitee. Alleges AUC as should have had better lighting. P uses Carol Towning to show that this is what a RPP would have done.

Better light = $500 1% change of mugging at stores with

good lighting and 3% with bad lighting increased probability of mugging without good lighting = 2%

Damages of mugging = $30,000 $500 < 2% x $600 $500 < $600

o Because $500 is less than $600, a reasonable person would have spent the money on the lights!

IMPORTANT: numbers must be based on the SAME TIME PERIOD!!!!

Hand formula = THE GOLDEN RULE! (we should protect others as we would protect ourselves)

Use as a guideline typically not a hard and fast application bc figures are too hard to make exact.

CAN USE CUSTOM AND HAND FORMULA TOGETHER TO ESTABLISH BREACH.

o Hand formula tells us that custom exists because there is a low B and high P.

o Jury Intuition let the jury consider whether conduct was unreasonable in general. (cases tend to come out ad hoc)

Negligence Per Se (breach per se): Standard of Care derived from statute- If … must jury charge in all per se cases.

o P hit by motorist who had red light. If D did not stop at red light, then you must find him negligent. (statute will apply because red light rules are clearly designed to protect people who are crossing

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the street (class of people) from being struck by cars (class of risk))

- D can NEVER borrow statute ie. D cannot take a relevant statute and show that he obeyed the statute to prove that he wasn’t negligent.

- When will the court borrow a standard of care from a statute?o Does the statute provide explicitly for civil tort liability?

If YES no need to establish whether duty from statute applies. Statute creates an EXPRESS cause of action.

If NO look at if the statute could apply through interpretation to create an IMPLIED cause of action.

When can court borrow standard of care from statute? RELEVANCE!

o 1. Statute must be clearo 2. Statute must be intended to prevent the

type of harm that P suffered.o 3. P must be classified as the type of

person the statute is intending to protect.o 4. Violation of statute must be proximate

cause of the injury. o Generally 2 & 3 are at issue

When court’s don’t apply statute revert to standard RPP anaylsis

o O’Guin v. Bingham County Class of Risk Case (#2) Boys injured in landfill that was not fenced off. Fences

required around landfills by statute. Purpose of statute is to “safeguard human health”. Court said health = safety and getting hurt violated safety. Liability imposed on D from a breach of standard set by statute.

o Hypo Class of Persons Case (#3) MD statute requires fences around pools that are 4 ft tall

and must be locked when homeowners aren’t home. D has fence and gate and 22 y/o houseguest goes through unlocked gate when D wasn’t home, swims, and drowns. Statute would not apply because the height requirement in the statute suggests that the fences are meant to protect small children and 22 y/o houseguest is not within the class of persons that statute is designed to protect.

- Escaping liability in per se cases: RS 15 “Excused Violations” pg. 93o Actor’s violation of a statute is excused and not negligence if:

Actor violates because he is a child, physically disabled, or physically incapacitated.

Actor exercises reasonable care in attempting to comply with the statute

NOT an excuse if actor doesn’t comply bc he believes statutory requirements are excessive

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Actor neither knows nor should know of the factual circumstances that render the statute applicable

Statute is confusing and unclear to the public NOT an excuse if actor is simply ignorant or

unaware of statutory requirement Actor’s compliance with the statute would involve a greater

risk of physical harm to the actor or to others than noncompliance.

Ex. Walking with traffic (when statute requires you walk against it bc other direction has abnormally high traffic flow

o List from RS is NOT exclusive could be other excuses and jury would decide if reasonable.

***Some J’s use violation of statute as evidence of negligence, but doesn’t create an if…must scenario. ***Other J’s say violation of statute creates presumption of negligence that D must rebut.

RES IPSA LOQUITOR: the thing speaks for itself- No directed verdicts where RIL applies always a jury decision

o Doctrine permits the jury to infer negligence, but does NOT require them to find it.

P must show: 1. Accident is one which is normally associated

with negligenceo normally = probability analysis (accident is

the kind that 50%+ occurs because of negligence)

Ex. Warren v. Jeffries Parked car rolled back and crushed child. AUC 1. D failed to set hand break, 2. D failed to engage transmission, 3. D neglected to maintain adequate brakes, 4. Mechanical failure. No evidence of any of these, but P failed to rule out AUC 4, the non-negligent possibility. So case never gets to jury and D escapes liability because not a res ipsa case.

o Usually assessed by jury’s intuition (expert testimony in med mal cases)

o Ways for P to prove prong 1: Rule out non-negligent possibilities

for accidents

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Describe accident and leave it to jury to decide that negligence caused the accident

Use expert testimony to rule out non-negligent possibility.

Persinger v. Step by Step child broke femur at day care. P used expert testimony to prove that the way that child’s leg was broken was not possible as D described it.

2. Injury-causing instrumentality is in D’s exclusive control

o Ex. Barbie v. Minko Construction mullion bar falls on teacher. She loses because she can’t prove that the construction company didn’t properly re-attach bar because D wasn’t the only party with keys to remove mullion bar in the first place.

Should have called everyone in school with keys, asked if they removed it or saw someone remove it and NOT call D. Leaving it open for jury to determine that P had eliminated all possible parties except D.

o This element drops out in med mal all people in the room can be held jointly liable until 1 proves that he had no responsibility for the injury.

o “Exclusive control” can include later things glass in can of spinach. Negligence is attributable to the packager even though at the time glass was discovered, it wasn’t technically in D’s control.

3. Injury is not caused by any act of P o If P is partially at fault, it will factor into

comparative fault analysis but will not bar application of RIL.

- Ways for D to disprove RIL:o Show what actually caused the accidento Attack all foundational facts

Ex. Show how the harm happens often without negligence, show that the thing wasn’t in D’s control, etc. for all elements

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o Show that D exercised due care (won’t necessarily win but will make jury think about whether you really were negligent or if this was just an accident)

FACTUAL CAUSE: The But-For Rule- But-for D’s breach, P would be uninjured.

o If there had been no breach, would P still have gotten hurt? If YES breach is NOT factual cause If No breach IS factual case

o Hale v. Ostrow AUC was allowed bushes to obstruct sidewalk. Bushes did not cause P’s injury, however, but-for the bushes obstructing the sidewalk P would not have had to look up to check for cars, and she wouldn’t have stepped on the crumbling sidewalk and fallen and broken hip. Court said it’s a jury question whether bushes are a but-for/factual cause of P’s injury.

o Salinetro v. Nystrom Dr did not ask patient if she was pregnant before X-ray and baby died from exposure and P sues. Court held that AUC (not asking) was not factual cause because P did not know she was pregnant so she would have said no, even if asked.

P’s lawyer could have avoided causation issue by changing the breach from failure to inquire about pregnancy to failure to take a pregnancy test (but may not constitute a breach) or failure to ask if her period was late, etc.

More than one cause:- RS 27: Multiple Sufficient Causes

o “If multiple acts occur, each of which have but-for causation, each act is regarded as a factual cause of the harm.” MERGED

- But-for causation doesn’t always work (think two fire-starter hypo both negligent but both use but-for causation to preclude themselves from liability and innocent P can’t recover)

- Remedy^ = Substantial Factor Test (for merged causes) o Substantial Factor = breach that could have caused P’s injury

in question all by itself if there had been no other negligent acts involved.

o Used when there are multiple sufficient causes Each D is deemed a factual cause if his breach was a substantial factor in producing P’s harm.

o Ex. Landers v. East TX Salt Water Disposal Co: P had pond with fish that died because salt water from ETSWDC (D) and Sun Co. (D) flowed into it. Ct held, the tortious acts of two or more wrongdoers join to produce an indivisible injury, that is, an injury which from its nature cannot be apportioned with reasonable certainty to the

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individual wrongdoers, all of the wrongdoers will be held jointly and severally liable for the entire damages

CAN BE TIMES WHEN MORE THAN ONE CAUSE BUT DON’T MERGE neither cause alone sufficient to bring about the harm, but together are sufficient. wouldn’t use substantial factor in this case.

Ex. Chemical flows into pond from 2 different plants, killing fish. It’s determined that 150 gallons of the chemical is needed to kill the fish. 70 gallons came from plant1 and 80 from plant2. Neither breach is a substantial factor, but both are but-for causes. Both D’s liable.

o RS 36: Trivial Contributions to Multiple Sufficient Causes “When an actor’s negligent conduct constitutes only a

trivial contribution to a causal set that is not a factual cause under §27, the harm is not within the scope of the actor’s liability.”

Trivial Contribution can still be “factual cause” under substantial factor test but will not incur liability under proximate cause.

Unascertainable Causes:- Multiple D’s breach, but only one breach cause P harm, but which D

actually caused harm is impossible to determine. ACTUALLY HAVE TO PROVE THAT THEY BOTH BREACHED BEFORE BURDEN IS SHIFTED!

- Ex. Summers v. Tice: 2 quail hunters shoot at birds and hit P in the eye. P cannot prove that either, by a preponderance of the evidence, hit him – he can only prove that it was 50% D1 or 50% D2.

- Ct held SHIFT THE BURDEN OF PROOF TO D make D prove which one of them caused the injury to P. If one D can prove that the other was responsible, he’s exonerated. If neither can prove the other both held jointly and severally liable.

Sequential Causes:o Ex. Dillon v. Twin State Gas & Electric Co.: P playing on bridge,

slipped, tried to grab onto the wire which wasn’t insulated and he was electrocuted, fell, and died. AUC was that the wires should have been insulated, but both P’s slipping and non-insulated wire are but-for causes for P’s death. Ct held that the case needed to be remanded to let a jury decide what would have happened if the wires would have been insulated. If jury finds P would have survived if wires were insulated, D is liable. If jury finds that P would have died in the fall regardless, D is not liable.

CAUSE 1 Liver cancer pedestrian (no Fatal fall Monday’s

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negligence) from bridge (P’s negligence)

Fire (D1’s negligence)

CAUSE 2 Gets hit by negligent driver and dies (negligence of D)

Electrocution (negligence of D)

Tuesday’s dire (D2’s negligence)

P COLLECTS: P collects value of life expectancy for liver cancer patient

Jury determines which cause caused injury

P collects full value from D1 because RS 26

- RS §26 “An act or omission cannot be a factual cause of an outcome that has already occurred.”

Loss of Chance Doctrine:- Relax causation rules so that P may recover for the loss of chance

someone’s negligence caused him. - Value of the chance = percentage of the total damages proven equal to the

percentage of the chance of recovery for P if the negligence hadn’t occurred.

- Ex. Mohr v. Grantham: P was in car accident and suffered head injury, then Dr. treated her negligently resulting in “greater” brain injury.

o GOOD DR: 40% chance of full recovery with proper treatment and 60% chance of brain damage with proper treatment.

o BAD DR: 10% chance of full recovery with negligent treatment and 90% chance of brain damage with negligent treatment.

In both cases, Dr. can say brain damage was likely to occur with or without negligent treatment. (no preponderance of the evidence) Ct uses loss of chance doctrine to provide remedy.

Good Dr. 40% chance of recovery (-) Bad Dr. 10% chance of recovery = 30%

o P recovers for her 30% loss of chance of recovery. Cost of living rest of life with brain damage = $1,000,000 so she recovers 30% of 1,000,000 = $300,000

- If P can prove recovery above 51% with proper treatment full recovery because complete factual cause. Loss of chance is for when you can’t get to 51%.

- Policy reasons for loss of chance doctrine:o Deterrence keeps Dr’s from not carefully treating patients with

less than 50% chance of survival.

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PROXIMATE CAUSE: Scope of Responsibility RS 29: Limitations on Liability for Tortious Conduct

- D should consider what the risks were that made his conduct negligent in the first place:

o If D should have anticipated a particular risk at the time he acted and negligently failed to avert that risk D is liable if THAT risk caused P harm.

If risk that happens was not foreseeable to a reasonable person, D is NOT liable because failing to avoid that risk was not unreasonable.

Making D pay for a risk that he could not have foreseen and thus avoided is not in line with policy of tort law, to deter people from taking unreasonable risks.

- RS 30: “An actor is not liable for harm when the tortious aspect of the actor’s conduct was of a type that does not generally increase the risk of that harm.”

o Ex. Greater care by the actor would not have reduced the likelihood of the accident.

Palsgraf v. Long Island Railroad Co: - 2 guys boarding train, one almost falls and gets shoved on by station

worker. Guy drops box, filled with fireworks, it explodes, and causes a scale down the track to tip over and hit P. P sues. No recovery for P because no proximate cause.

- Disagreement between Cardozo and Andrews on where the limit on liability should be:

o Cardozo limiting principle should be in duty elemento Andrews limiting principle should be in proximate cause

element. Important because duty issue is for judge to decide (favors

D) and proximate cause issue is for jury to decide (favors P)o Which principle?

Cardozo foreseeability Andrews multi-factor test / practical politics MODERN APPROACH PROXIMATE CAUSE AND

FORESEEABILITY TEST

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Give question to jury, but limit it to question of what harm is foreseeable given the breach? (Cardozo’s test and Andrew’s element)

o To Recover P must show 1. Have to be a foreseeable victim

EXCEPTION Rescue Doctrineo A harms B C comes to help B and is

injured in the process. A is liable to C under the rescue doctrine, even though C is not a foreseeable victim of A’s harm to B.

2. Has to be a foreseeable harm foreseeable risks have to have some degree of

specificity can’t be “someone could get hurt” or liability would be limitless.

o Ex. Hughes v. Lord Advocate: kerosene lamps left unattended at work site. Kids play in work site and knock over lamps causing explosion. Kid burns hands trying to climb out of work site bc ladder is hot from explosion.

AUC = leaving lamps unattended Foreseeable harm = burns to children

playing in work site Actual harm = burns to children

playing in work site Foreseeable harm and actual

harm match proximate cause element satisfied.

To argue for D MAKE HARM THAT OCCURRED NOT MATCH FORESEEABLE HARM BY BUILDING IN A “how” MECHANISM

What, to whom, by how?o Minor burns, to

children, via direct contact with flame.

This wouldn’t match because the harm that occurred did not come from direct contact with flame, so proximate cause wouldn’t be satisfied.

o Ex. Doughty v. Turner Manufacturing Co. : AUC was knocking lid in vat of burning liquid. Foreseeable harm scalding a co-worker.

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Actual harm scalding a co-worker. Proximate cause element satisfied.

D should argue: Foreseeable risk scalding of a co-worker by splash. Actual harm scalding of a co-working by chemical reaction from lid in vat. Outside scope of risk, so proximate cause not satisfied.

o RS 34: Intervening Acts and Superseding Causes “When a force of nature or independent act is also a factual

cause of harm, an actor’s liability is limited to those harms that result from the risks that made the actor’s conduct tortious.”

Superseding cause = cause which cut’s off responsibility of the actor originally in question.

Ex. Marcus v. Staub: AUC was giving alcohol to minors and refusing to drive them home. Intervening causes were girl stealing car and attempting to drive it drunk, resulting in crashing it and injuries to P. Ct held that the jury should decide whether the criminal acts by P’s were superseding causes.

o Intervening criminal acts determined on a case by case basis court will still consider whether the intervening criminal act was foreseeable.

o SHRIMP HYPO lady eats bad shrimp served by country club, pukes on floor, friend slips in puke and breaks leg. Is country club liable to broken leg lady? NO! Vomit was an intervening and superseding cause.

Very Duty Rule superseding causes don’t apply when the exact duty you had was not met by you.

Ex. School’s have a duty to protect their children while kids are in class. If school did not maintain proper security and a gunmen comes in and opens fire, school cannot claim that the gunmen was a superseding cause because protecting the children was their VERY DUTY.

RS 3rd 34 “When an actor is found liable precisely because of the failure to adopt adequate precaution against the risk of harm of another’s acts or omissions, or by an extraordinary force of nature, there is no scope-of-responsibility limitation on the actor’s liability.”

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o Thin Skull Rule (only applies once there’s a tort tool for assessing damages)

“Take plaintiff as he finds her” completely violates foreseeability rule

Liable for all damages even if not foreseeable. RS 31 pg. 156

Intervening medical negligence initial injurer liable for whole thing, even if Dr. negligence made it worseIntervening negligent rescue Initial injurer liable for whole thing, even if rescuer’s negligence made it worse

In thinking about scope of risk:What kind of injury matters (Hughes v. Lord Advocate)Who is injured matters (Palsgraf)How the injury occurs can matter sometimes (Doughty)Where the injury occurs can matter (Derdiarian: case where construction company didn’t put a barrier in front of whole and epileptic had seizure and crashed into hole making P a fireball. Ct held, this was within prox cause) heightened position of risk (can be a factor for or against prox cause: for = Derdiarian / against = Ventricelli (trunk was broken and P hit by car while trying to close it – Ct said behind car is heightened place of risk in general and can’t hold car company liable for broken trunk bc you were hit in an already heightened place of risk) Time/When injury occurred can matter (Marshall v. Nugent and the risk arc)

DAMAGES:

Single Recovery Rule P must collect all for damages for the single tort at 1 trial. (can’t reopen case every time P incurs a new expense caused by D’s tort.)

- Compensatory Damages: make the plaintiff whole for the injury o Lost wages and earnings capacity

For future earning capacity consider the type of work P did, how long he would probably work for, evidence of likely advancement, etc.

o Medical expenses Submit evidence of hospital bills, etc.

o Pain and suffering (including mental/emotional pain) Several J’s have caps on this type of damages Includes ongoing pain, long-term discomfort, pain from the

actual tortious injury AND humiliation, embarrassment, depression, trauma etc. (CATCH-ALL)

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o Special or particularized damages that do not fit neatly within the other categories.

P can recover for losses already occurred and for future losses that the evidence proves “probable”.

P must show that damages claimed were caused in-fact by D’s conduct

Pecuniary = compensate victim for economic consequences of injury

Nonpecuniary = compensate victim for physical and emotional consequences of injury

“Time value of money” lump sum amount smaller than periodic payments because lump sum can earn interest over time.

- Judge privileges:o Set aside jury’s awarding of damages that “shock the conscience”o Additur judge can add to impermissibly low jury awardo Remittitur reduce an excessively high award o New trial judge can order a new trial on damages

- Nominal damages: damages in name only o 1$ or 6 cents

- Punitive damages: exemplary damages (fewer than 1% of tort cases have punitive damages)

o Only awarded in intentional tort cases or where extremely reckless conduct occurred

o “Degree of reprehensibility” is the most important factor in assessing amount (BMW v. Gore)

Disparity between the actual or potential harm suffered by P and the punitive damages award also a factor

Different between the punitive damages awarded by the jury and the civil penalties authorized or imposed by similar cases, also a factor.

^^^ State Farm Mut. Auto Ins. v. Campbell Can’t look at D’s wealth because that would be

discriminatory. poses issue bc if a VERY wealthy company, how can you really deter without imposing VERY high punitive damages?

o Policy reasons: Deterrent effect Punishment / retribution Desire to assist in useful litigation by providing source from

which attorney’s fees can be paido SCOTUS suggests punitive damages should not exceed a single

digit multiple of compensatory damage award Most cases no more than 2x or 3x compensatory

- Joint and Several Liability: Multiple actor’s act together, all responsible

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o Joint liability (old rule) = P’s call as to apportionment / who pays the whole thing between the 2 D’s (traditional rule)

Contribution: D has right to make other D contribute to pay P’s damages if P assigns one D to pay more than 50% of the damages (or if P only sues one D when both are but-for causes and liable).

Risk of insolvency placed on shoulders of Co-D’s Ie. P tells D1 to pay total damage award of $60,000.

D1 can ask D2 and D3 to pay $20,000 in contribution. If D2 or D3 are judgment-proof, other D’s still have to pay P full recovery amount.

o Statutory changes to joint and several: now courts ask juries to apportion fault and each D responsible for his percentage of fault.

Ie. P gets a $60,000 award from jury. Jury says D1 is 20% at fault, D2, 30% at fault, and D3, 50% at fault. D1 would pay $12,000, D2 would pay $18,000, and D3 would pay $30,000.

In new system, P bears the burden of judgment proof D’s.

o Co-D’s never responsible for any more than their apportioned fault. So if D3 can’t pay, P loses that recovery.

Phantom tortfeasors fall within this category. o Policy is that it’s better to have P go without

some recovery than to make D pay more than his “fair share”.

No contribution is new system because each assigned their own fault amounts.

o BUT indemnification allows for some redistribution amongst D’s

Respondeat superior: employee can seek reimbursement from the company for the damages he had to pay P

Products liability: retailer can seek reimbursement from manufacturer.

DEFENSES:

1. P’s Fault a. CONTRIBUTORY NEGLIGENCE = complete barb. COMPARATIVE NEGLIGENCE = apportion some fault to P, etc.

2. Assumption of the Riska. Basically “consent” in negligence torts

- Plaintiff’s Fault

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o Old rule = (contributory negligence) Butterfield v. Forester Deny all recovery to P if P is partly at fault (contributory

negligence) Contributory negligence by P is a complete bar to

recovery. MD, DC, VA, NC, and AL (still the rule in these J’s)

o Exception = Last Clear Chance Doctrine P negligently put himself in peril and D knows or

reasonably should know of P’s peril and reasonably could have avoided the peril to P. P’s negligence does not bar recovery.

Ex. Drunk falls asleep on railroad (he’s contributory negligent) and the train driver could stop the train, but he is being negligent by reading a comic book while operating the train. He hits drunk, and drunk dies. D is liable, P is not barred from recovery.

The doctrine was formulated to relieve the severity of the application of the contributory negligence rule against the plaintiff, which completely bars any recovery if the person was at all negligent.

Exception to the exception last clear chance doctrine does NOT apply if the act by P which put him in peril was an illegal activity.

o Exception = If D was acting extremely recklessly, P could recover

o ***very duty rule can override P’s comparative fault. (Bexiga v. Havir Manufacturing Corp.: case where guy got hand hurt on machine in Butterfield J. AUC was that machine didn’t have safety level. D arg was that P wasn’t paying close enough attention. Ct said, very duty of manufacturer is to make machines that are safe and effective even for tired (negligent) workers. P recovers fully.)

o New Rule = Comparative Fault P’s recovery is reduced proportionate to of his comparative

fault. ***If more than one D when jury assigns fault

joint and several liability may still be applied depending on jurisdiction.

o If J&S P can seek the total recovery owed to her by jury percentages from either D and then that D can seek contribution from other.

Pure Comparative Fault NY P gets recovery on the percentage of fault that was

appointed to D (even if more than 50% P’s fault) Modified Comparative Fault Type 1 WI

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P gets recovery on the percentage of fault appointed to D so long as P’s fault is 50% or less

P fault > 50% = absolute bar Modified Comparative Fault Type 2 NE

P gets recovery on the percentage of fault appointed to D so long as P’s fault is less than 50%

P fault > 50% = absolute bar o Ex. P suffers $100,000 in damages

Case 1 P is 25% at fault NY: $75,000 WI: $75,000 NE: $75,000

Case 2 P is 60% at fault NY: $40,000 WI: $0 NE: $0

Case 3 P is 50% at fault NY: $50,000 WI: $50,000 NE: $0

o Ex. Car accident where two parties injured. Party A = damages of $100,000 and

40% fault Party B = damages of $200,000 and

60% at fault NY: A is due $60,000 and B is

due $80,000 therefore, A pays B $20,000.

WI: A is due $60,000 and B is due $0 therefore B pays A $60,000

NE: Same as WI (would only be different if fault was 50%/50% then no one would recover anything)

Methods for assigning fault: No real guidelines!

o RS factors: RS 8 Nature of the persons risk creating

conduct (including any awareness or indifference with respect to the risks he/she is creating)

Intent with respect to the harm created by conduct

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Strength of causal connection between the person’s risk-creating conduct and the harm

o Posner economic argument D’s cost of accident avoidance vs. P’s

cost of accident avoidance Cost of hotel to provide security

would be much greater than cost to P to check who’s at the door before unlocking/letting them in. So P should be get much more fault.

o Prosser argument: “Consider both the nature of the

conduct of each party at fault and the extend of the causal relation between the conduct and the damages claimed.”

- Assumption of the Risk waiving your right to sue- PURPOSE: free choice principle that underlines the doctrine

o Express = waiver / release form Ct’s won’t honor enforce express waiver if it’s against

public policy to do so. Consent must be freely given (consider disparity in

bargaining power) P must clearly consent to accept the specific risk that led to

the injury o Implied = “that’s ok, I’ll take my chances” implied through conduct

Not recognized in every J (kind of obsolete)o ^this distinction not very important now

with comparative fault, but will matter if Butterfield J.

o Primary Assumption of Risk: Actor agreed to participate in an activity where the other

actors owed him a duty lower than the ordinary standard of reasonable care under the circumstances.

Ex. Sports games and fans if you play or spectate, you are assuming the risk. Only duty owed to you is that the other players don’t act reckless.

Basically less duty, so less chance of breach o Policy reasons for allowing lower standard of

care: sports and recreation are voluntary! Always consider whether the type of injury is in

inherent risk of the activity! if not, might not be within the scope of the assumption of risk.

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o Secondary Implied Assumption: P injured by D’s negligence, but D argues that P’s conscious choice to encounter the negligently created risk should bar P’s recovery.

Ex. D lends P car. P notices that breaks are faulty but proceeds anyways and is then injured when brakes fail and she hits building.

Ct’s tend to honor P’s willingness to confront negligently created risks and WILL bar P from recovery.

Treat as an affirmative defense bc bars P’s recovery even though P proved prima facie case for negligence.

If P’s decision to encounter the risk was unreasonable choice constitutes BOTH secondary assumption of risk and contributory negligence. (both complete bars to recovery, so D’s choice, probably plead both)

o In comparative negligence jurisdiction P’s unreasonable choice factored into P’s percentage of fault.

If P’s decision to encounter the risk was reasonable contributory negligence does NOT bar recovery, but secondary assumption of risk still did. (D pleads secondary assumption of risk)

o In comparative negligence jurisdiction P probably not assigned percentage of fault because reasonably made choice to take risk.

o Difference between contributory negligence and implied assumption of risk:

Contributory negligence implies a sort of unknowing carelessness by P that does not implicate consent, whereas in implied assumption of risk P is knowing of risks and daring to take them.

PREMISES LIABILITY: duty depends on P’s status

Injury due to P’s activities:- INVITEE = any person on the premises at least in part for the pecuniary

benefit of the landowner OR who is on the premises held open to the general public (ex. Union Station, Church, airport terminal, etc.)

o DUTY OWED: RPPUTC Can lose status as invitee if you exceed scope of your

invitation. Ex. Invitee when in a store, but if you enter the

managers office in that store you’ve exceeded your status and become a trespasser.

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- LICENSEE = someone who is on land with permission o Social guests are usually licensees. o DUTY OWED: RPPUTC

- TRESPASSER = no legal right to be on premises o 1. Undiscovered DUTY OWED: Don’t be reckless (refrain from

wanton conduct that is likely to injure)o 2. Discovered DUTY OWED: RPPUTC if in peril

Injury due to Dangerous Conditions:- INVITEE = duty when hidden condition and D knows, or should know of

the hazard (what an RPP would know from conducting a reasonable inspection of the property)

- LICENSEE = when condition is hidden from licensee, but known in advance by D

- TRESPASSER =o 1. Undiscovered no duty of protection from dangerous

conditions o 2. Discovered 3for there to be a duty: danger must be hidden

from P, but known by D, and the condition must be highly dangerous (capable of killing or maiming) and must be an artificial danger (not a lake, cliff, ice, etc.)

- ***Assuming that there is a duty o 1. Eradicate the hazard / “make safe”o 2. Warn of the hazard

Warnings save land possessor’s from having to spend tons of money fixing their property

- Attractive Nuisance Doctrine Infant Trespassers o Bennett v. Stanley : case where kid went into neighbor’s backyard

to play in pool turned into a lake and drowned then mom drown trying to save him.

Ct held new status of infant trespassers (only applies when there in an artificial condition an attractive nuisance)

When infant trespasser owe a duty of a hypothetical reasonably prudent person.

Duty established factors to consider for breach analysis: whether trespassing children is foreseeable and if children are unlikely to appreciate the danger.

o Tends to only apply to children of “tender years” - Open and Obvious Doctrine: land possessor often won’t be liable if P

gets hurt by something open and obvious on the land. o P’s in these cases will argue that there are other distracting factors

or there was no way to avoid the dangerous thing. Court’s will

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sometimes grant recovery to P if it seems that D should have done more.

****Lots of J’s throw out entire status framework and just use RPPUTC, and consider whether you were invited, doing business, trespassing, etc. as on of the circumstances that count to determine if you were being reasonably prudent.

MEDICAL MALPRACTICE: (see other notes under “Duty” on pg. 12-13)

Duty = do what everyone else does CUSTOM- Custom used because medical procedures are too complicated for juries - Problems custom imposes on P:

o High costs of expert witnesseso Stuck with burden of finding an expert (Dr’s don’t want to testify

against other doctors usually a “conspiracy of silence”)- Approaches to custom:

o Local hard for P because Dr’s are all close, lack of evidenceo Modified Local look at comparable communities (issue: how do

you prove what communities are comparable?o National most open-ended

Res Ipsa Loquitor = when P has a condition only attributable to medical negligence- Would Apply Ex. Towel in belly after surgery P was under

anesthesia during procedure so doesn’t technically know how towel got there, but obviously the result of some negligence somewhere.

- Would Not Apply patient has a pre-existing frailty that contributes to the outcome P is claiming was negligently causes.

o Ex. Kelly v. Hartford Casualty Ins. Co.: P got hematoma after enema. P alleges that “ordinarily you don’t get a hematoma from an enema, so there was negligence in its administration somewhere.” Ct said res ipsa does NOT apply bc P had long history of bowel problems that likely contributed to hematoma.

- Expert testimony is res ipsa sometimes bad outcome does not always speak for itself in medical cases (not always obvious negligence to a jury) so expert testimony breaches this gap. before expert testimony, had to be a TOTALLY OBVIOUS case of negligence for res ipsa in med mal.

o States v. Lourdes Hospital introduced expert testimony for res ipsa

- D “complete control” element of res ipsa drops out in med mal context

o All D’s liable P doesn’t need to prove which person in the operating room did the negligent act.

Ybarra v. Spanguard Informed Consent = disclose the risks of medical procedures

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- Alternative approaches to “risks”:o MAJORITY: Disclose the risks that a reasonable patient would

want to know Harnish v. Children’s Medical Center : P underwent elective

surgery to have tumor removed, ended up losing all tongue function. P sued because D didn’t tell her this was a risk and P said if she had known, she wouldn’t have had surgery. Ct held, Dr needed to disclose this as a risk bc reasonable patient would want to know.

o Disclose the risks that doctor’s customarily disclose ****Purpose of informed consent doctrine:

Patient autonomy Fosters rational decision making Requires Dr’s to be self-reflective

o P has to show: but-for Dr’s failure to disclose, patient would have decline the operation.

FAMILY AND GOVERNMENT IMMUNITIES:FAMILY:Spousal no longer a living immunity Parent – Child modified, not completely abrogated

- Neel v. Sewell Rule: Be reasonable, BUT:o 1. Parent has no duty regarding exercise of authority AND

Ex. Commerce Bank v. Augsburg: parents locks child in cupboard to discipline him for misbehaving and asphyxiates and dies parent not liable.

o 2. No duty regarding provision of necessaries. Ex. Parent allows child to eat donuts every night for dinner

and child gets diabetes and sues parents. Parent not liable.

Ex. Parent sends child to school in zero degree weather without coat. Child gets pneumonia and sues parent Parent not liable.

- NY Rule: Parents have general RPP duty, but no duty to supervise. - Other states: no immunity because the retained aspects swallow all suits

children could potentially bring against parents.

GOVERNMENT: Federal Tort Claims Act (FTCA):

o Limited waiver of sovereign immunityo Have to give govt 6 months notice before filing suit o Use state law of place where tort takes placeo No punitive damages o All bench trials (no juries)o No strict liability claims against govt

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o No claims for malicious prosecution - Private Person Analogue: Would a private person be liable under like

circumstances? o US v. Olsen

- Feres Doctrine: If active duty service member is injured incident to service, there can be no recovery against US military.

o Purcell v. US - Discretionary or Basic Policy Immunity:

o 1. Was the challenged action/omission “mandated” or did the govt have a choice?

o 2. Did the choice involve “social, economic, or political” (SEP) analysis?

Generally: designing a plan involves SEP analysis so P will be barred. But the implementation of that plan will not involve SEP, so P will not be barred from claims involving its implementation.

Wishnant v. US Policy reasons for discretionary provision:

Separation of powers if we didn’t have this, judges could overrule legislative decisions about policies etc.

o Remedy to this is to elect different legislatures.

DUTY TO ACT AFFIRMATIVELY: JK YOU DON’T HAVE ONE, LOL

Nonfeasance: no duty to act affirmatively BUT if you choose to undertake an activity you must then perform it with ordinary care (for most activities) or a different standard of care (for other activities).

No duty to rescue: Generally Actor 1 never has a duty to rescue Actor 2- EXCEPTIONS:

o 1. When D has put P in peril, most court’s impose a duty. Even if the act that put P in peril did not come about from

negligence. Podias v. Mairs : case where D drunk driving and hit

motorcycle. Friends encouraged driver not to call for help or implicate their involvement. While thinking about it, car comes and hits motorcycle guy and kills him. Ct held all 3 liable because they put motorcycle guy in peril.

o 2. When there is a special relationship between P and D, courts impose a duty.

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Farwell v. Keaton : case where two friends get in fight with other guys and friend 1 gets bad head injury. Friend 2 leaves friend 1 in back of car and doesn’t tell anyone he’s there, then friend 1 suffers brain damage that could have been avoided in friend 1 had gotten prompt help. Ct held Friend 1 liable because they extended the idea of special relationship to include P and D’s friendship.

RS 40 pg. 191 Special Relationships Include: Common carrier and its passengers Innkeeper and its guests Business or other possessor of land that holds its

premises open to the public with those who are lawfully on the premises

An employer with its employees who, while are work, are:

o In immanent danger ORo Injured or ill and thereby rendered helpless

School with its students Landlord with its tenants Custodian and those in its custody

Court’s will sometimes extend special relationships ad hoc where public policy permits.

o 3. Botched rescue voluntary undertaking Wakulich v. Mraz : Goldschlagger girl drinks too much and

gets sick. D’s help her by checking on her, changing her shirt, cleanring her face, leaning her over so she doesn’t asphyxiate, but then D’s stop paying attention to her and she dies. Ct held D’s liable because D’s voluntarily undertook to help P so then they had a duty to do it carefully.

- Generally no duty to rescue provides deterrent from gratuitous rescue so some states have good Samaritan laws that absolve D from liability where he would have been liable before.

**duty never obligates you to put your life in peril just have to do what’s reasonable

DUTY TO PROTECT FROM THIRD PERSONS:

P

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3rd party who actually hurts P (TPSH) D D is liable bc he should have protected P from TPSH. BC TPSH is unavailable of has no $, P sues D.

Special relationship you can hold D liable for not protecting from TPSH

1. Relationship (with TPSH or victim) +2. Foreseeability of harm

a. 4 Tests for foreseeability of harm:i. Specific imminent harm to P (from 3rd party)

1. Robber sees Sam’s Club employee & tells them he is going to rob patron at gunpoint in the next 5 minutes. Sam’s Club has a duty

ii. Prior similar incidents1. People mugged in parking lot once a month Sam’s

Club has a duty iii. Totality of Circumstances

1. Includes all relevant factual circumstances bearing on foreseeability of harm to P

iv. Balancing Test1. Address interests of business owners against

protection of customers.IMPORTANT in this case, we’re looking at

foreseeability as the prerequisite for duty duty gets decided by judge thus, judge gets to decide if there’s a high probability of harm judge likely to be concerned with cost to business (not simple view them as deep-pocket D’s).

Colleges usually no liability even though relationship and foreseeability Schools in general liability more likely to be imposed if on school property / during school day. Landlord/tenant no duty even if foreseeable harm BUT 2 exceptions

- 1. If there is a known defective condition on the premises RPPo Ex. If there is a door that doesn’t close properly so people can just

come in. - 2. Landlord undertakes to provide security he must execute with

reasonable careo Ex. Don’t have to have security guards, but if you do and they get

hammered and don’t to their rounds, you could be liable for harms that come to fruition from their not doing their rounds.

Psychologists duty to warn people their patients threaten IF there is a real danger, determine by what other psychologists would consider to be a real danger. (Tarasoff v. Regents of University of CA) CUSTOM because this is really a med mal case)

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Alcohol Providers Duty only when involving 1) Sale to minors and 2) sale to people already drunk.

- Policy reasons for imposing duty attack the gatekeeper! No drunk drivers if no one is serving alcohol

***Almost all TPSH cases have phantom tortfeasor.- Liability in TPSH cases are likely not be claims for much $ because with

proportionate fault (as most states follow) and states that allow for phantom tortfeasors, juries will allocate MOST fault to phantom tortfears (the 1st party source of harm) and P will not be able to collect on that.

o Justice question: Who pays phantom tortfeasors share? Most of the time P eats it.

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS: for cases where P does NOT sustain a physical injury (how this is different than standard pain and suffering included in damages)

Limiting principle used by courts is usually duty:- Generally, person has no duty to avoid inflicting emotional harm on

bystanders bc of various policy reasons. - Courts dealing with how to limit liability once they have assigned a duty

in the below circumstances.

Types of Cases: (lots of overlap) - Loss of consortium when one spouse is injured, other spouse also

sustains a loss. Loss falls within 3 categories:o 1. Loss of serviceso 2. Loss of societyo 3. Loss of sex

*actually have to PROVE that you lost one of these things. Some J’s allow filial consortium recovery Some J’s allow claims for parental consortium

- Fear of physical harm o About FEAR! o “Zone of physical danger” requirement

P must be close enough to D’s negligent conduct to be placed at risk of physical injury.

Rationale to impose duty on D is that P was within the area of risk created by D so injury to them was foreseeable.

o Many state require that D have manifestations of the distress (heart attack, nervous tick, etc.) less fake claims

- Bystander caseso Have to be:

1. Contemporaneous observance (see it as it happens) (near in time)

2. Close family member (near in relationship)

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3. Present at the scene (near in space) ^^^ from Dillon v. Legg After these req’s some J’s got rid of zone of danger

requirement. - Relationship cases P has relationship with D

o Ex. Medical misdiagnosis, hospital mixing up babies, vindictive lovers (revenge porn).

- Toxic exposure cases anxious about potentially getting sick. o P must prove:

1. As a result of D’s breach, P was exposed to a toxic substance which threatens serious illness AND

2. P’s fear stems from a knowledge, corroborated by reliable medical or scientific opinion, that it is more likely than not that P will develop the illness in the future due to the toxic exposure.

- ELEMENTS, GENERALLY:o 1) The defendant engaged in conduct that the defendant should

have realized involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily injury;

o 2) That the conduct caused emotional distress to the plaintiff; and o 3) The distress was of such a nature as might result in illness or

bodily harm.

PRODUCTS LIABILITY:

RS 1 pg. 294 “One engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm to persons or property causes by the defect.”

- Defect:o Departs from its intended design (even if all possible care was

taken in prep and marketing of product)o Foreseeable risks could have been avoided/reduced by adopting a

reasonable alternative designo Inadequate instructions or warnings

- Misrepresentation:o Fraudulent, negligent, or innocent misrepresentations or material

fact concerning the product = liability for harm caused by misrepresentation.

VICARIOUS LIABILITY:

Respondeat superior:  If employee commits a tort during the “scope of his employment”, his employer will be liable (jointly with the employee).

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- Applies to all torts (including intentional ones assuming that the tort occurred in scope of employment)

- Applies to employees, but not cases involving independent contractors- Scope of employment = D was acting with intent to further his employer’s

business purpose, even if the means he chose were indirect, unwise, or forbidden

Accident that occurs when employee is traveling from home to work, not acting in scope of employment.  Returning home: courts are split

Detour/side trip/frolic during delivery or business trip for personal purposes by employee may be found within scope of employment if deviation was “reasonably foreseeable”: minor in time and geographic area

Parent-child: Parent not vicariously liable for tortious conduct of child.  Most state, by statute, make parents liable for willful and intentional torts of their minor children up to certain dollar amount

Tavern keepers: create cause of action in favor of any third person inured by intoxicated vendee

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