Remember to paste onto a new document to get rid of shadow!!!What's the bigger picture?

Prosser v. Keeton (thief steals watch and sells to member of his church)Rule: The purchase of stolen property, even w/ GF buyer who was unaware that he did not have valid title, constitutes conversion by both the seller and innocent buyer.

3 Judges/ 3 diff views Allen/formalistic: NO right to watch, he has no title and is a converter (aim is

process) Bateman/justice: Prosser in better position to guard his possession Compton/social utility: Process of production would stop all together

Florida 2008 Session (Brian Daiagi paralyzed riding bike, tort reform allowed him to collect but capped his damages, had to lobby to get damages)

1. Waited 16 yrs. to get this award but was awarded $4.3 million 2. ($5.3 million - 20% for his comparative neg.) 3. Award was limited to 25% for attorneys fees, lobbying fees, costs and other

similar expenses relation to this claim (by the act that Diaigi lobbied for)

Holden v. Walmart (slip and fall but knee was already injured)Rule: An award of damages may be set aside if and only if it shocks the conscience bc it's the result of passion, prejudice, mistake, or some other mean

Compensatory Damages: upon an offer of adequate proof: π may recover lost wages or lost earning capacity, medical expenses, pain and suffering endured (including mental or emotional pain)

1. π may recover for losses that have already occurred and will probably arise in the future

2. ∆ has wrongfully reduced the plaintiff's net assets, tangible and intangible and should be req. to restore them

3. Freedom from pain is an intangible asset so pain inflicted by ∆ should be compensated

Punitive damages=1. Mostly intentional, awarded in addition to compensatory2. , Provides deterrence and good for social policy 3. Usually awards attorneys fee (only when ∆ has acted maliciously or willfully in

cause harm)

Tort claim must have 3 elements that π must prove prima facie case (case good "on the face of it" or at first look) prove the PFC of some particular tort π bears the burden of proof (if fails then ∆ wins w/o putting up a case)

B. Trial Procedures Motion for directed verdict=

1. ∆ usually move for DV at the end presentation of evidence π and then again after ∆ (motion for judgment as a matter of law=in fed courts)

2. Asserts that the proof offered by π is legally insufficient to warrant a jury's verdict for the π

3. Should be denied if there is room for reasonable jurors to disagree4. Similar to both a summary judgment motion (claim that facts are undisputed) and

motion to dismiss BUT it is based on the evidence produced at trial 5. (Made out of the presence of jury so as not bias them)

If the plaintiff/defendant does not have enough evidence, Other party can make a motion for summary judgment bc has so much evidence

that there is no issue of fact) If successful, then no trial (if a trial, will probably have a better trial) Most of the time, these are denied. Only granted when the other side has no

appreciable evidence (no issue of fact)

Motion to dismiss: case is over, no valid claim for trial

Motion for J.N.O.V.= Judgment non obstante veredicto= not withstanding the law) Post-trial motion for judgment as a matter of law) is a virtual renewal of DV after the

verdictMotion for summary judgment: based on evidence from the discovery processDemurrer (common law)=motion to dismiss (fed rule)Remitter:Judge grants motion for new trial unless the plaintiff accepts a lower award

Discovery process:1. Interrogatories: written ques. to other side, answers must be notarized(only to opp.

party)2. Depositions: ques. to any one (witnesses)3. Discovery usually leads to settlement of the case before court4. If ∆ wins demurrer then case is over, if ∆ loses then case goes to trial5. Both sides already know what evidence the other side has (better results when

they go to trial) less surprises, more accurate result at trial6.

II. Fault based liability for physical harms to persons and propertyA. Establishing a claim for Int. Torts-Privileges

1. BatteryVan Camp v. McAfoos (Aunt doesn't show cause of action against 3yr. old on tricycle Rule: Where an essential element of the cause of action is missing, the question is not what may be shown under the pleading but whether a cause of action has been pled

Snyder v. Turk (Frustrated Dr. grabs nurse and shoves her face near surgical opening)Can you be sued for battery for offensive behavior? YesSnyder wins at trial, then Turk wins at appealAC sends case back down for a new trial

Cohen v. Smith (Need not be harmful just offensive)Doesn't want a male in the room during cesarean bc of religious beliefsA male nurse did observe her and touch her during the operation

1. Trial court allowed def. motion to dismiss 2. Appellate court reverses and sends the case back down (remanded) bc

motion to dismiss was wrong1. Dignitary tort= dignitary suffering (comp. for dig. torts=can't usually

recover/not pain and suffering by itself2. Nominal damages=real no physical harm BUT something done was wrong

so touching that involves either harm or offense: battery

Need not be harmful just offensive

Battery must include touching

Garratt v. Dailey (5yr. old pulls chair from under aunt)Rule: Intent for assault and battery can come from evidence that ∆ knew w/ substantial certainty that contact or apprehension of contact would result from their actions

Knowledge of a grave risk that such contact or apprehension could occur is INSUFFICIENT

Kids charged w/ liability for batteries are held to the standard of a reasonable child of the same age

White v. Muniz (elderly woman strikes her caregiver) (Colorado=single intent)Rule: Jury may conclude that a mentally deficient person is liable for tortious conduct; however, in so doing the jury must find that the actor intended offensive or harmful consequences

Insane people may be held liable/ not guilty for insanity may still be found liable

Elements/def of batteryIntending to cause offensive or harmful contact w/ the person of another or a 3rd party or ∆'s belief that these consequences are substantially certain to result from his actions

1. Must be a volitional (of one's own will/choice) act that ∆ INTENDS to cause contact w/ π

2. No req. of hostile or malicious intent (i.e. to do harm)3. Also extends to that is so grabbing or slapping something from π's hand 4. Includes unintentional injury of someone if the person inflicting the injury

specifically intended to harm someone else (transferred intent)

Dignitary tort= offensive touching that offends a reasonable person's sense of dignity

Causation= contact must be caused by an affirmative act, which must be the cause of or put in motion the force that results in π's injury

Dual intent=intent to make contact and that it be offensive and or harmful Single intent= intent to make contact

Parents aren't automatically liable for children's torts but most state's statutes make themvicariously liable but subject to two conditions

a. Only liable if child commits tort willfully or wantonlyb. Damages may be capped at low level

2. AssaultCullison v. Medley (creepy man gets stalked by young girls family members)Rule: Assault is found where one intends to cause a reasonable apprehension of imminent harmful or offensive contact in another.

Examples of Assault Shake a fist under someone's nose

Aim or strike at w/ weapon or hold weapon in threatening position Rise or advance to strike another Surround someone w/ a display of force

Elements of assault1. Touching of the mind, if not the body2. Damages for mental trauma and distress3. Excites an apprehension of a battery which would normally be aroused in

the mind of a reasonable person4. Does NOT include mere speaking

Koffman v. Garnett (coach SUDDENLY lifted and slammed π to the ground/ no warning of physical contact)SC found ∆ bc π couldn't have any apprehension (no warning he was going to be tackled)

3. False Imprisonment (Maine requires physical restraint) Elements

Intentional total obstruction/detention of another (w/intent to do so) w/in the boundaries set by the ∆

π is aware of detention (not unconscious) W/o lawful privilege and against their consent W/in a limited area (w/ no reasonable exit available) For any appreciable amount of time, however short π may recover for injuries sustained in escape attempt Transferred intent applies (tries to shut A in cellar but confines B

instead)

Obstruction or Detention Elements1. Exist is not reasonable if it's unknown to π or requires risk to use (even

discomfort)2. Can be by conduct, words, force or threat of physical force or claim of

lawful authority to restrain4. Torts to property

A. Trespass to landElements

1. Intentional entry upon land of another2. Either personal entry or causing object to enter land3. Rights of landowner extend beneath the surface to at least a reasonable

height above ground (dig beneath or surface fly close to ground= trespass)

4. Intent to enter land is enough (not necessary for intent to trespass)a. Not a defense bc ∆ believes it's his land or he has the right to be thereb. No requirement of malicious or intentionally harmful intentc. Punitive damages may be awarded if deliberate or malicious

d. Intentional trespasser is subject to extended liability (starts fire w/ cigarette)e. Only liable for damages related to their possession

Aiding and Abetting: conversion may be accomplished by aiding and abetting another's conversionSerial Conversion: Exceptions to conversions to chattels If A does not steal but tricks B into selling it to him, then A does get title Bc A got it bay fraud/trick, B may go to court and have sale voided (he is not required

to do this). B may just keep the $ Until B goes to court A has title A can transfer title to C, who will have good title/ not a converter If C knew of the fraud and bought anyway then is also a converter UCC exception: A takes bike to B's repair shop. B repairs the bike and sells it before

A returns for it. Under common law B would be liable but the UCC provides that if goods are entrusted to the possession of a merchant who deals in goods of that kind, the merchant ha the legal power to transfer all he rights of the entrusted

Trespass vs. nuisance Trespass=invasion of π's interest in exclusive possession of land Nuisance= interference w/ use and enjoyment of property

Majority trespass ruleIf ∆ intending to be on land (by mistake, ignorance, claim of right or other matters) is liable

B. Conversion of ChattelsChattel is all personal propertyHistory

At first property was limited to tangible property Has expanded to permit conversion of intangible rights that have merged

w/ an instrument even though the instrument itself is not converted Not if instrument is not capable of being converted (good will, ideas)

Conversion1. Intentional and wrongful acquiring, altering, damaging, transferring, using,

withholding of personal property of another2. ∆ must intend to exercise substantial dominion over chattel (possession)3. ∆ may or may not be aware of wrongdoing (not required to know)4. More than intermeddling required5. Converters are liable for full value of chattel 6. May be accomplished by aiding and abetting another's conversion7. Good faith buyers of stolen chattel are still converters

****Exception: Someone who does not steal

Can include damage to π's reputation and goodwill, clogging email or computer systems w/ large amount of unwanted mail

Trover= conversion today Replevin=when you want the actual prop back

Factors in determining if interference is serious enough to require full compensationa. Extent of dominionb. Duration of the interferencec. Harm done to the chatteld. Inconvenience and expense to the one entitled to possession; ande. Good faith (or not) of the person exercising control

Remedies Measured by value of chattel at time of conversion (replevin=seeking actual

return of chattel)

5. Forcible Harms as Civil Rights Violation

Elements of CR Violations Actions based on dignitary harms may overlap bw torts and CV claims 42 U.S.C section 1983 (claim for violation of const. rights) requires that π show Failure to intervene Responsibility to intervene applies equally to supervisory and non-supervisory

officers.a. Any person (usually a state or municipal official)b. That acted under the color of state law c. Deprived π of right guaranteed under the Const. (federal right)

Can bring an action in fed or state court (sometimes a perceived advantage of bringing an action in fed court)

Under Civil Rights statutes may be able to recover attorneys fees even without punitive dam awarded

(Can't unless you win under an int. tort and judge awards punitive damages) Must have had substantial certainty that driving on the wrong side of the street could

injury someone and officer made a choice Abuse of gov. power has to shock the conscious, did not shock so the plaintiff loses When suing under 1983, can sue the individual who violates your rights and in some

instance may be able to sue the city that employs them Must show that the city did something wrong AND failed to do something right

(failed to train employees in proper way) if not then city may say "not w/in the scope of his emp. go sue him, not us"

If they have had other complaints or have not shown training video, city may be liable for negligence

Yang v. Hardin (police stole from store and beat up store owner/ partner didn't stop him)

Rule: One who is given a badge of authority as a Police officers (any one given a badge of auth) can't ignore duty imposed by his office by failing to stop officers who punish a 3rd person in his presence or with his knowledge.

Examples of Const. Violations

Meal v. City of Memphis (officer chasing car that severely injured/paralyzed someone) Rule: Abuse of governmental power violate due process rights only when it shocks the conscience

In most states, officers have immunity from prosecution State may not destroy a pet when it poses no immediate danger and the owner is

looking on trying to retain custody

Ex. (Brown v. Muhlenberg Township: cop shots dog that showed no aggression while owner looked on)

Most cited Const. provisions 4th am=protests against unreasonable searches and seizures 8th am prohibits cruel and unusual punishment 14th am guarantees citizens can' t be deprived of life liberty and property w/o

process of the law (the Due Process Clause) 14th am "Due Process Clause" includes bodily integrity, and is infringed by a

serious battery (not nominal or trivial) Alexander v. DeAngelo (cops force woman to prostitute by threatening her w/ a 40 yr. prison sentence court finds they violated under 42 U.S.C)

1. Rape= (what ever type) is violation of body integrity (serious battery)2. Deliberate violation of body and Deprived of liberty w/o due process of the law

(14th am.)3. This is rape according to the court but police had immunity in this case bc the

court found that it is not obvious to average officer that this level of deceit violates constitutional rights (she did not recover anything)

4. Defenses to Intentional TortsA. Protecting against the apparent misconduct of the π

1. Self Defense (SD)/ Defense of someone else One may be privileged to use force to defense against harmful or offensive

bodily contact and against confinement if such force appears reasonably necessary for the protection of the actor

Depends on apparent necessity of self-defense not on actual reality If ∆ reasonably believes they are being attacked they may use reasonable

force to forestall the attack or minimize its effect

2. Defense of Someone else Doesn’t come up as often Has expanded to include strangers (not just your family and servant)

Hypo: ∆ sees A striking B and seizes B (believes he was attacked) but B is a police officer carrying out an arrest

Some courts say ∆ is liable bc mistake destroys privilege Other say privilege covers as long as ∆ belief was reasonable (rest.

agrees)a. Reasonable deadly force (DF)

Extends only to what is reasonably necessary to prevent death or serious harm (not to defend property)

In Ohio, you must retreat ordinarily but not in your home (if you use deadly force in your home, you must have been fearful of bodily harm (not just theft) place or business or car called a Castle doctrine

Deadly force can be used to protect yourself from death or serious bodily harm (including sexual assault)

b. Retreat If ∆ is attacked, they are not required to retreat or otherwise avoid

the need for SD If ∆ is threatened w/ sexual attack of force likely to cause death or

serious harm, they may respond w/ reasonable DF Some states require reasonable retreat before DF is used when ∆ is

not in their home 3. Excessive force (EF)

Privilege only covers reasonable force so ∆ is liable for EF If ∆ retaliates/continues their defense after fight is over, ∆ is liable Is a matter of degree and depends very much on the facts of case Sometimes is characterized as negligence (allows π to collect from

∆'s insurance4. Provocation

Generally not sufficient for SD privilege Insult/arguments don’t justify attack from insulted ∆

5. Assaults and Imprisonment in SD One MAY be privileged w/ appropriate facts to commit an assault

or false imprisonment in SD ∆ is privileged to put π in apprehension of harmful contact

(assault) but the actual contact (battery) will not be privileged Arrest and Detention

Peters v. Menard (shoplifter is chased and jumps in river where he ends up drowning)Rule: " Shopkeeper's Privilege" provides that merchants generally have the right to detain suspected shoplifters assuming the detention is:

1. With reasonable cause to believe a violation has occurred;2. In a reasonable manner, and 3. For a reasonable length of time

They may chase them off of the merchant's premises as well Store must act reasonably

Used Social policy reasons for holding The jury will still decide and if ∆ was falsely accused they will probably

consider the merchant unreasonable in detaining ∆Defense and repossession of property

Katko v. Briney (owner uses spring gun that nearly blows burglar’s leg off)Rule: Premises owners do not have a privilege to protect their property using force intended or likely to cause death or serious harm against a trespasser. Texas and Arizona-you may shot someone to protect your property (not liable or

criminal)

Brown v. Martinez (owner shots boy over melons but only wanted to scare him) Rule: There is no privilege to use any force calculated to cause death or serious bodily injury when only property is threatened. (law has always placed higher value upon human safety than upon mere rights) Committed assault and can be transferred to battery

1. Reasonable force Privileged to use to defend one's property Deadly force generally can only be used in defense of one's home Some court restrict it to invasions that appear to threaten death/serious

bodily harmRecapture of chattels

Owner may pursue but may not forcibly recapture from thief 1 week later Repossession of consumer goods (car) must be done peaceably Must seek recovery for land in court, may not even use reasonable force

Discipline Parents enjoy a privilege to discipline their children and to use reasonable

force or confinement to do so People in charge of a child not their own enjoy a similar privilege

B. The Special Case of Consent1. Relationship of the parties

Robin v. Harris (CO forced inmate into oral sex and claimed she consented)Rule: A jailer may not claim consent as a defense for sexual misconduct w/ a detaineeTC: Even w/ consent the power deferential is too great (coercion is inevitable)AC: Its against the law itself so he is liable w/ or w/o consent

An inmate cannot consent to jailer bc of their inherently unequal relationship (extreme power differential)

In most mental health patient and health care professional the ∆ is able to Lawyer and client: π is former client (not like guard and prisoner but is

similar to therapist and patient) some lawyers have been sued for undue influence

New rules of prof. conduct: 1.8j= subject to discipline by engaging in a intimate relationship w/ client unless the relationship started before the attorney/client relationship

Generally assumed minor may consent to a # of touchings appropiate to their age

Most states require notification of parents but allow minor to consent to abortion

In many stated the consent of a minor is ineffective and provides no defense

W/ adults must show incapacity and they didn't understand the nature and character of the act

Kennedy v. Parrott (Dr. punctures cysts found during surgery w/o patient's consent)Rule: Consent will be construed as general in nature and surgeons may extend the operation to remedy any abnormal or diseased condition in the area of the incision

Dr. commits battery if treats w/o patients consent or in excess of scope of consent

May not apply to emergencies were consent was not possible Competence to consent (or refuse) measured by π's ability to understand

the condition, nature and effect of accepting or rejecting treatment If suing for neg. (intent does not make a diff), must prove that dr. acted

outside of the standard of care of other reasonable surgeons (can't sue for battery (maybe for negligence)

Consent for minors: Consent to major surgery: parents usually have right to choose but not abortion Can not deprive a minor of having an abortion, bypass can go to a judge and

become emancipates or this procedure is something that they really need Notice to parents are req. when minor has abortion Equal protection clause: can't discriminate if they are similar situated but a girl

has more risk than boy

Doe v. Johnson (Magic sued for giving HIV to π, should have known of high risk)Rule: ∆ who knows they have STD and knows that π is not aware of their infection commits battery by having sex

If consent is induced by false info, it may not be valid even if π voluntarily participates in touching

Mistakes or misrepresentations about collateral matters (price/timing) don't nullify consent

Some courts say consent to illegal acts is ineffective (Boxers can sue each other bc neither of them can consent to a crime)

Some courts (to suit their purposes) say no one can found a case of action on an illegal act

π can revoke consent at any time by telling ∆ (subject to qualification)

Payton v. Donner (creepy Dr. trades drugs for sexual touching w/ addicted woman)Rule: C. Privileges not based on π's conduct

1. Arrests and searches Officers are privileged to enter land to execute search/arrest but not to

invite the news media to cover their heroics2. Public Rights

Places open to the general public can't exclude would be patrons (bc of race/gender)

Privilege to enter land to reclaim good' of one's own Privilege to exercise free speech at shopping centers open to the public

(may campaign on public issues)3. Public necessity

Privilege to enter land or interfere w/ chattel of another if it is/ or appears reasonably necessary to avert public disaster

Consent to illegal acts: (illegal boxing match example) Some courts feel consent to illegal acts is ineffective= participants may sue each

other Other courts (to suit their purposes): no one can found a cause of action on an

illegal Ex. No recovery for victim of neg. and illegal abortion: Castronovo v. Murawsky

Act=sometimes bars the victim who participated Restatements say consent is generally effective and neither participant is liable to

the other Statute might make act illegal bc the victims are pressured to consent and leg.

wants to protect people so consent is effective π can revoke consent at ANY time by comm. the revocation to the ∆

Surocco v. Geary (City took over π's house to stop spread of a fire)Rule: Private rights of citizens yield to considerations of general convenience and the interests of society (greater good of all)LC: rules for π but AC reverses for ∆Reconciled bc US const. didn't have 14th am and CA didn't have a const/ wasn’t a state during Surocco (no taking clause yet)

Wegner v. Milwaukee Mutual Ins (SWAT destroys house apprehending a suspect)Rule: Situations where an innocent 3rd party's prop is taken, damaged or destroyed by the police in the course of apprehending a suspect, is for the municipality to compensate the innocent party for the resulting damagesTC rules for ∆ but AC reversed and remanded for calculations of cost (π)

Reconcile/distinguish these two cases?

Wegner: 1. Could have waited the suspect out instead of destroying the house

(chose to go in) bc the whole city is not burning down. 2. When someone takes our prop. (gov.)=imminent domain 3. Under this circumstance it was a formal taking of the prop. (Took

away all of the use of prop).= regulatory taking under the Minn. Constitution

4. Wegner: US constitiion did not have a 14th am. and Cali was not a state yet

Surocco:1. Happened in 18532. No state const. (if litigated after 1888, maybe would have been

considered a taking)3. Ind. should not be forced to bear public burdens alone and if

the public benefits from burdens imposed on others, it should pay. Similar to ideas used in tort liability upon the gov.

Customer Co. v. Sacramento (not liable damage caused while apprehending suspect)Rule: Compensation is only required when taking for property of public (parks/highways)Interpreted the State Takings Clause in a much more narrow way

Ploof v. Putnam (πs dock in bad storm/ ∆'s servant undocks them causing damage)Rule:  Necessity (life or death) justifies entries upon land and interferences with personal property that would otherwise have been trespass

Vincent v. Lake Erie Transportation (boat decides to docks in storm/damages dock)Rule:  A party acting under PRIVATE NECESSITY is liable for damages incurred to the property of othersTC ruled for π and ∆ appealed. AC held for π

Compensation must be made (under our system of jurisp.=the study, science and philosophy of law)

Reconciled w/ McAfoos bc fault is required in that case but not in Vincent

(Did not allege fault and was denied (fault is req. in McAfoos but not in VIncent)

II. Scheme of Negligent WrongsA. Duty

1. Legal Elements of Negligence Claima. To receive compensation π must allege and prove facts establishing five

elements1. ∆ owed the π a legal duty2. ∆, by behaving negligently, breached the duty

3. π suffered actual damage/injury4. ∆'s negligence was an actual cause of this damage5. ∆ negligence was a "proximate cause" of this damage

Burden of pro The above elements must be alleged by π who has the burden of proving

the allegations by a preponderance of the evidenceAct or Omission

Stewart v. Motts (man get burned and sues guy helping him fix the car)Rule: Reasonable man must exercise care in proportion to the danger involved in the actGen standard of neg: What would a reasonable person do? which varies w/ circumstances

Shepard v. Gardener Wholesale (woman w/ cataracts tripped on slab)Rule: A person operation under physical disability such as defective vision is not required to exercise a higher degree of care to avoid injury than is required of a person under no disability Alabama still had contributory neg. which is a complete defenseCreasy v. Rusk (Alzheimer's patient hit her caregiver several times)

∆ not liable bc mentally disabled person doesn't owe duty of care to caregiver

General duty of care: the prudent person standard To exercise the care that would be exercised by a reasonable and prudent person

under the same or similar circumstances to avoid risks or minimize risks of harm to others

Standard is external not based on subjective judgment Higher duty may be imposed by statutory provisions or by reason of special

knowledge or skill on the part of the act A person w/ mental incapacity is (generally) held to the general standard difficult to

determine the degree of disability (hard to measure) Low intelligence and other mental/psychological limitations are treated the same

Exceptions: Physical disability will be taken into account W/ kids, majority view is based on what's expected of children of like age,

intelligence and experience Person's with superior knowledge Some states use the Rule of 7's (Ohio) Under 7 NOT held to a standard of care 7-14 presumed incapable of neg but may be contested 14-18 held to standard of care

Robinson v. Lindsay (girl injured while riding w/boy on snowmobile)Rule: When children are engaged in an inherently dangerous activity the rationale for exception does not apply. If child is doing an adult activity, then they are held to the adult standard

Hudson-Connor v. Putney (11 yr. old runs golf cart runs π and breaks her leg)Rule: The skill and judgment required to perform an activity safely increased in proportion to the "danger" posed by

Note: Risking your life to save property= unreasonable. Risking your life to save another person=reasonable, as long as the decision was not rash or irresponsible.

A custom is specific and widely accepted manner of performing a particular activity in a given community, industry, sport, or geographic area.

General Rule: Violation of a custom by the ∆ is merely evidence of negligence, but it is not conclusive.

Compliance with custom is only evidence of non-negligence, it is not conclusive and a jury may find a ∆ negligent even though he adhered to custom.

Hypo:After drinking 17 beers, physically disabled?

You are imposing the disability on yourself, neg was getting in the car and driving Intoxication is not a defense

Reconcile: Intoxication v. Physical disability drivingWalking on sidewalk, choosing to drive (should be allowed to walk on sidewalk but should not be driving)

B. Negligence per Se Rule: When there is a statute, the statute establishes the standard of care owed, and the unexcused violation of the statute conclusively establishes breach if the following elements are satisfied: Statue or reg clearly defines the required standard of conduct Statute or reg was intended to prevent the type of harm actually caused π is a member of the class of persons the statute was designed to protect Violation was the proximate cause of the injury If you can't establish negligence per se, you can use this as evidence to establish

negligence (but easier to establish negligence per se). If you don't have neg per se doesn't mean that you can't prove neg!

(but will be tougher) If it’s not neg per se, you can still use it as evidence of neg Usually applied to violations of city ordinances, if it only an adm. code, not neg per

se but you can still use it as neg

Attractive nuisance: must prove reg neg for trespassers (only applied to young kids)Kids go to neighbors house with no fence and pool: neg to not have fence, not grossly negExcused violation of “statute” (excuses to negligence per se)

o Violation is reasonable bc of the actor's incapacityo Neither knows or should know the occasion for complianceo Unable after reasonable diligence or care to complyo is confronted by an emergency not due to his own misconduct

o Compliance would involve a greater risk of harm to the actor or to others

IOREG = Incapacity; Occasion for compliance; Reasonable diligence or care; Emergency; Greater risk of harm

Proof of negligence: Res Ispa Loquitur1. This doctrine allows the plaintiff to use circumstantial evidence as direct evidence

of negligence in certain situations; this mitigates the plaintiff’s burden of production; it allows the plaintiff to have a prima facie case of negligence.

2. Elements of Res Ipsa Loquitur (Prosser) The event is the type that does not normally occur in the absence of

negligence The harm causing agent was within the exclusive control of the ∆ The harm was not due to any voluntary action or contribution on the part

of the π It is the function of the court to determine whether the jury may reasonably draw

the inference, or whether it must be necessarily drawn.

It is the function of the jury to determine whether the inference is to be drawn in any case where different conclusions may be reasonably reached

Res ipsa loquitur= the thing speaks for itself

Giles v. City of New Haven (elevator attendant gets injured)Rule: RIP is not limited to actions where the ∆ has exclusive control over the instrumentality

1. Even when π operates the instrumentality2. If duty to maintain the instrumentality remains w/ ∆, the plaintiff can use RIP3. This is a jury question

Warren v Jeffries (Car runs over child who dies)Rule: No RIP if can't determine if negligence caused accident, or if there was something wrong w/ car (not examined after accident) Byrne v Boadle (Barrel rolled out of warehouse, hitting P)Rule: All that is necessary is that reasonable persons would say that, more likely not, there was negBarrel comes out of the window but π is not able to prove neg

Reconcile Cracker Barrell and Santiago:Santiago: not enough control by the ∆, not sure whose neg Cracker Barrel: ∆ didn't have complete control(Most slip and fall and automobile accidents aren't suitable for res ipsa loquitur)Res ipsa and rear end collisions

Can argue that π slammed on the brakes Some states say the mere fact that you rear ended someone will get the case to a jury

Some states say that it is a presumption, so you must provide evidence to the contrary

Elkerson v. NJ Blood Center (paralyzed man falls off table and dies)Rule:

Custom can be used as evidence so AC remanded it back for trial No part. proof that ∆ was neg/ court might say this ordinarily doesn't happen w/o

neg ∆ supposed to secure him and ∆ was obviously neg bc they had complete control It is now up to the ∆ to prove that this could happen w/o neg on their part to jury In RIP case where the inference is so strong, it shifts the BOProd to the ∆ We are turning RIP into a presumption

Jury’s Role and Resistance Against Directed Verdict Generally, where RIP has been invoked, a directed verdict will not be granted

unless the prima facie evidence is so strongly in the favor of negligence that no reasonable juror could find for the defendant.

Acts of God and Res Ipsa Loquitur Where an act of God could have caused the harm, RIL will most Res Ipsa Loquitur and (potential) multiple defendantsA π cannot invoke RIL against multiple potential tortfeasors If π cannot establish who the potential ∆ was then they have not met the second

element that the harm must have been caused by an agent of instrumentality within the exclusive control of the ∆. Where the potential tortfeasors are working together in a special relationship

then RIL may be invoked.

Instruction to jury under RILIf you believe X, then you MAY find (not required) that it was neg on the part of the ∆

π gets the case to the jury May still lose but at least it got past a DV motion to the jury

Inference vs. PresumptionInference is permissive

Judge instructs the jury If you believe X, then you may also believe Y

Presumption If you do find x, you must find y unless evidence is submitted that it is not y

Minority- Presumption of negligence: A small minority of states gives a

Presumption of negligence when res ipsa is invoked thus if the ∆ fails to provide defenses then the jury must find for the plaintiff.

C. Breach of DutyOnce the existence of duty is established, π must prove a breach of that duty

∆ must have failed to do what a reasonable person would have done in the same circumstances.

Can arise from an act OR omission

Brown v. ShireIs someone practicing med w/o license is neg per se? Court says no, statutory purpose is to protect from incompetent practitioners, must show incompetenceYou are protected under the statutes for Drs. if you are not a Dr.

Indiana Consolidated v. Mathew

Stinnet v. Bucheledd

If ∆ was liable, then the contributory neg would wipe out the amount that π can recover∆ does not need an affirmative def to win, bc the danger was so obvious, it was not negYou hire and experienced roofer and he falls off the edge, its not foreseeable to he will fall unlesss therer is something wrong, it's assumed that if it was dangerous there will be safety put in placeThe obviousness of danger to π, means ∆ can't be liable here

Pipher v. Parsell (Three 16 yr. olds and one grabs the wheel more than once/car Rule: When actions of a passenger are foreseeable that interferes w/safe operation of car, failure to prevent such conduct may be a breach of driver's duty to either other passengers or to the public

U.S. v Carroll TowingIf someone had been on board the chances of this happening would still be very small Burden: Must pay someone to be on the bargeSeverity: Barges break lose infrequently during storms so it is not necessary to employ someone 24 hrs.

Anything wrong w/ this formula? Its not exact, people can die for economic reasons, doesn't compute well with people, need to protect human lifeCounterargument? Even though human life doesn't work well into this equation, there is a limit to infinite value on human life

The Learned Hand Formula/ Impose liability where: If action would be very burdensome, not reasonably expected to take that precaution (social utility)Probability of harm x the severity of harm must be greater than the burden of cost to create a duty to the π

Indiana Cons. Ins. v Matthew (brother runs from fire from and garage burns down)Rule: One who is confronted w/ a sudden emergency not of his own making is not chargeable with neg if he acts according to his best judgmentDamage for not pushing the mower out of the garage is protecting property v. human life

Stinnet v. Buchele (roofer fell/ claimed ∆ was neg in providing a safe work place) Rule: Liability rests upon the assumption that the employer has a better and more comprehensive knowledge than the employees and ceases to be applicable where the employees' knowledge of the dangers to be incurred is equal to that of the employer You hire and experienced roofer and he falls off the edge, its not foreseeable to he

will fall unless there is something wrong, it's assumed that if it was dangerous there will be safety put in place

The obviousness of danger to π, means ∆ can't be liable here

Bernier v. Boston Edison (woman loses control of car and hit store, meter, another car and knocked down electric light pole)Rule:

Apportioning responsibility Comparative fault – each faulty party bears burden of losses. Each party

liable only for % responsible (only for what they did including fault of π) Apportionment among defendants – multiple tortfeasers; they split

damages based on % of fault Joint and several liability – Multiple tortfeasers; π can enforce against

either ∆ or against both. π can't collect more than full amt of damages but may chose to collect against one, might enforce entirely against either ∆

Contribution – if only 1 ∆ pays full amt, not fair. So co-∆ would pay ∆ his portion, called contribution.

Insolvent or immune tortfeasers – 1 ∆ is immune to tort liability. Co-∆ incurs all expense of damages, and cannot get contribution.

Joint and Several liability– Determine % fault of each ∆, and ∆ only liable for his share. π can only pursue each ∆ for the % fault.

Several liability and comparative fault apportionment among tortfeasors (alternate scheme of apportionment)

No tortfeasor is liable for more than his proportionate share Proving Negligence: Inference & Custom – P must prove negligence more

probable than not

Proving ConductSantiago v. First Student, Inc. (girl not sure how she was injured on bus)Rule:P unable to show evidence that D was negligent. Cannot pursue claim.

Upchurch v. Rotenberry (car crash/ possible woman driving drunk)Rule:Too much conflicting evidence.Jury decides the truth, cannot overrule; can reasonable go either way. Evaluating Conduct

Wal-mart Stores, Inc. v Wright (neg based on its own manual/ higher standard) Court says only reasonable care must be taken (doesn’t want to discourage businesses from employing a higher degree of care b/c they would be liable to stick to it

The T.J. Hooper – (is it customary to have radios on ship?)Court says although radios weren’t the industry custom, it would have prevented the accident, and so should have been used b/c of its availability and not burdensome for D to use (use common sense). Courts want advanced technology to be used (progress).

Hypo:Suppose their is an statute or ordinance, but the custom, as can be shown by one of the litigants, is to generally ignore this ordinance? This erodes our system of law, it is not allowed as evidence (jaywalking in a town)

Proximate Causation The doctrine of proximate cause limits liability when the ∆’s negligence is found

to be the “but for” cause of the ∏’s harm, but where other public policy considerations that would warrant limiting the scope of liability.

o Ask: Was the ∆’s negligence closely connected enough to the harm that

the ∏ suffered?

Cause-In-Fact In order for a defendant to be held liable in negligence, the plaintiff must show

that their negligence caused the harm.

But-For TestCause-In-Fact exists if the plaintiff would not have been injured but for the defendant’s negligence. Ex. -A negligent driver hits a pedestrian but can show that even if they would have been driving non-negligently that the accident would have occurred anyway. The driver would not be liable because they were not the “but-for” cause of the harm.

Direct Causation Test Under this view, where an actor’s negligence is the direct cause of the plaintiff’s

harm, the defendant will be held liable regardless of whether the damage was not expected.

o Polemis : This court adapted the Direct Causation Test. The court noted

that foreseeability is only important in determining whether the ∆ is negligent or not, not whether the ∆’s negligence is the proximate cause. The court states that an intervening force, which is something that was not present at the time the negligent act occurred, would be the only way to break the causal chain.

An intervening cause that occurs between the ∆’s negligence and the ∏’s harm will sever the connection so that a ∆ will not be held liable under the direct causation test.

o At the point at which an intervening cause severs the causation chain it

becomes a superseding cause. The direct causation test is a hindsight test, we look back to determine whether

the defendant’s negligence was the direct cause of the plaintiff’s harm.

Reasonable Foreseeability Test Under this view, what the defendant ought to have anticipated as a reasonable

man is material when the question is whether or not he was guilty of negligence, that is, of want of due care according to the circumstances.

For harm to found the proximate result of the plaintiff’s harm, the harm must have been foreseeable.

Foreseeability test is a foresight test we look before the fact to see if a reasonable person could have foreseen harm.

Duplicative causationEither one could have caused the damagesPre-emptive causation ∆ who pre-empts is liable poisoned tea to lips and another ∆ shots him dead He has pre-empted the poisoning of the tea, Can't say but for about tea, but can about shot(Dispositive: being a deciding factor bringing about a final determination)

Summer v. Tice ( gets shot in the eye but not sure which person did it)Rule: If ∆'s are independent. tortfeasors and thus each liable for the damage, and the matter of apportionment is incapable of proof, the wrongdoers should be left to work that out b/w themselves

Foreseeable Manner

o Manner of occurrence is irrelevant unless the sequence was highly

extraordinary, in which case, courts are split over the result. Some courts say that it would be unfair to hold a defendant liable

for such sequences. Others conclude that if it led to a foreseeable result, this is enough

to show proximate cause.o Intervening intentional or criminal acts

R. 448: §448: The acts of a third party in committing an intentional tort or criminal act are a superseding cause to another there from, although the actor created a situation which gave the third party the opportunity to commit such an intentional tort or criminal act unless the actor at the time of his negligent conduct he realized or should have realized that the third party would avail himself of such an opportunity

R. §449: If the likelihood that a third party may act in a particular manner is the hazard or one of the hazards which makes the actor’s conduct negligent, such an act whether innocent, intentionally tortious, criminal, or negligent does not prevent the actor from being liable for harm caused thereby

Foreseeable Resulto The foreseeable plaintiff has been injured, but an unexpected type of harm

has occurred.o Courts are split on whether the defendant’s negligence must cause the kind

of harm that made the behavior negligent in the first place. Doughty v. Turner Manufacturing Co. : One of the defendant’s

employees dropped a asbestos lid into a vat of extremely hot liquid and nothing happened as a result. Sometime later, however, the vat exploded, due to the asbestos and the plaintiff was injured. The court found for the defendant on the grounds that the damage was the consequence of a risk or hazard about which the defendant had not foreseen.

Hughes v. Lord Advocates : The defendants were all working and left a large hold with lamps burning all around it. Children began to play around the hole and instead of being burnt by the lamps, one of the lamps fell into the hole and caused an explosion. The court held for the plaintiff, holding that the damage was not a different type from which was foreseeable.

Foreseeable Plaintiffo Although the defendant’s act exposed a certain group of potential victims

to a foreseeable risk, the person hurt was not a member of that group.

Judge Cardozo: A legal duty is only owed to foreseeable ∏. There is only a duty owed if there is a foreseeable risk to the ∏ who was harmed. The unforeseeable plaintiff looses at the duty stage.

Judge Andrews: Disagreed stating that when an actor’s negligence is the proximate cause of the plaintiff’s harm then a duty is owed. Assuming there has been negligence and a risk has been created to someone, then there is a duty owed to anyone who is harmed by his negligence.

Thin Skull Rule When the extent of harm could not have been foreseen because of a pre-existing

condition of the ∏, the tortfeasor is still liable for the entire extent of the damages because they take their victim as they find them.

Danger Invites Rescue When an actor’s negligence imperils an individual to whom a duty is owned, a

rescuer harmed while in an attempt to rescue the imperiled is also owned a duty because danger invites rescue.

4.

Reconcile Koch v. Norris/Cosgrove v. Commonwealth Edison CoCourts tend to want to follow what other courts have done (even if it's not binding)Koch: Maybe storm is diff / Cosgrove: 40 mph winds is normal in Nebraska/ court is not saying that π is not out of luck bc they ccan sue the gas company (but no res ipsa locutor)

Right v. Breenmay be RIL, there was neg but no award of damagesif you're the prevailing party you usually get certain types of costs, don't usually include attorneys feeNeg has actual injury here you only get your costs if you are the prevailig party and you're Disappointing verdict: there's no liability unless there's an actual injury in ng

Hale v. Ostrowjudge mess up in their explanations of why they come to a particular decison (basis for decision) proximate and actua cause get mixed upWhat the actual cause? court considerd both of these to be the actual cause (there can be more than one)BUT-FOR determination (but for the concrete in the road she wouldn't have gotten hurt) requires a hypo Actual causation: BUT for the overgrown bushes then she wouldnt have gotten hurtI can see the actual cause but in terms of proximate causation there's a problem (case shouldn't get to jury, SJ)all you have to do is foresee the possiblity of someone having to go into the street You may use Learned Hands Formula: have to consider how serous it would be if this thing occurred and then look at the burdenlikehood+severity+burden= is this the likely thing that a person could foresee? not computed like Learned Hand FormulaAcutal causation: but for babysitter late, no burn to kid but no proximate causeduty, breach of duty, acutal injury, actual cause and proximate causeno proximate causation: really can't foress this type of accidentProximate cause=really equals social policy , not foreseable

Salinetro v. Nystromdidn't inquire if she was pregnant or notcourt didn't find actual cause bc even if the court had asked if she was pregnant she would have said noIf he asked about her period she would have said I'm late but that's usual and they would have taken the X-Rays so even if the Dr. had asked, they still would have taken the X-raysDr.'s neg is not the actual causeLiability of two or mor people:

A causes broken arm and B causes broken legRecover damages for each from eachno joint liabilityTwo people causing a single injury: A neg runs into a horse and leaves the carcass on the highway. B is driving neg and hit horse causing damage to passengerBoth are instruments of π's injury/will sue them both (can sue seperately but one ∆ will try to blame the other if seperated) jury decides how much each person is liable for **Dr. treats passenger and neg makes things worse (no A,B, and Dr. are neg)In terms of actual causation: A is the actual cause of all of his injuries Dr. is only liable for his own neg but A will be liable for all the injuriesBut is A the proximate cause of all of the injury? Is it forseable that patient would go to the hospital and be neg treated? YES oThin skull rule:

Factual Causation Rule:But-for test: The but-for tests asks whether the injury would have occurred but for the defendant’s negligence.Substantial Factor Exception to But-For Test: Where there are two or more successive or concurrent causes, each of which would have been sufficient to cause the entire harm, and there is a single indivisible harm, each defendant is deemed a substantial factor in producing the result.  This establishes factual cause.Alternate Liability Exception to But-For Test: When two or more defendants, all before the court, whose negligence jointly caused the harm, but can’t tell who, all defendants are considered the factual cause. It is the defendants’ burden to prove who is responsible for the injury.                NOTE ON DAMAGES: With multiple defendants, all defendants can be held jointly and severally liable, i.e. the plaintiff can collect damages from all or just one.Market Share/several liability: If there are three or more defendants, each negligently produced a product that caused the type of injury suffered by the plaintiff, and the plaintiff cannot prove which one is responsible due to the passage of time, all defendants are severally liable to the extent of their share of the national market, unless they can show they did not participate in the national market at the time. 

Proximate Causation Rule: Proximate cause is a policy-based element that assesses whether it is fair to hold the defendant liable for the plaintiff’s injuries. The proximate cause analysis asks whether the type of harm is reasonably foreseeable based on the defendant’s breaching conduct, i.e. whether the type of harm falls within the scope of risk created by the defendant’s alleged breaching conductPolicy-based, fairness; type of harm reasonably foreseeable; fall within scope of risk Severity of Harm/Eggshell Plaintiff Rule:The defendant is the proximate cause of the plaintiff’s harm if the defendant’s breaching conduct precipitates or aggravates a preexisting condition, illness, or 

vulnerability that the plaintiff had, even if the harm that results is more severe than one would normally expect or reasonably foresee.Precipitates/aggravates preexisting condition, illness, or vulnerability. Harm more severe than one would normally expect or reasonably foresee Intervening Causes Rule:The proximate cause analysis also looks at intervening acts.  Intervening acts or causes are ones that occur after the defendant’s negligent conduct and before the plaintiff’s injuries. The defendant is a proximate cause of the plaintiff’s injuries if the intervening acts were foreseeable at the time the defendant committed the breaching conduct. Unforeseeable intervening acts cut off the defendant’s liability for the plaintiff’s injuries Generally, ordinary negligence of intervening acts do not cut off the defendant’s liability for the plaintiff’s injuries. Generally, gross negligence, the intentional torts, and criminal acts of third parties cut off the original tortfeasor’s liability for the plaintiff’s injuries unless there are facts indicating that these acts were reasonably foreseeable at the time the defendant committed the breaching conduct. The ordinary negligence of doctors, rescuers, and transporters to obtain medical care are foreseeable and do NOT cut off the original tortfeasor’s liability for aggravated or additional injuries caused by these intervening actors. Intervening acts, occurs after breach and before injury, foreseeable does not cut off liability, unforeseeable does;Ordinary negligence doesn’t cut offGross negligence, the intentional torts, criminal acts of third parties cut off; unless facts indicate they were reasonably foreseeable at time of breach  

Lord v. Lovettwe didnt cause any further injury to her suing us bc we didnt make her better/ suing for lost opp.traditionally courts said ∆ must prove in some cases, can sue for loss opp. for what some neg failed to do to ameliorate your injuryπ wasnt able to prove 51% chance of recovery/ trial court dismissed if you prove the lost opp under those circumstance, π can recover for entire damages (does not)3rd approach/ receives damages for lost opp only.illustrated on p. 215each patient has 33% chance of recovery/ dr. treated all of them and they diedrecovery of person who survived

note .3seaman goes overboard/ could have turned around but they don't turn around and he is never foundfamily sues for lost opportunity/ didn't even try/ destroys his chances court applied the 2nd rule/ bc there was a chance/ sub possibilty so they give the full amountif his life is worth 100k then they get the full amount (relaxed causation)

Dillon v. Evanston Hosptrial court awards for past and future pain and suffering 2 choices: from injury to presennt and she can come backwant to get rid of case now, so π can sue for past and futureevidence was presented suff as to what the risjs were to herart and the chances of injury and death bc of itNo damage yet but risk in the future, person can be liable to risk that has not emerged to harm yet, to the extent that you can prove you may recover nowMedcalf v. washsues for neg bc the buzzer didnt workthey were neg (if they werent we owuldnt even get to proximate cause)proximate causation: legal policy/ there's a certain limit to what we hold ∆ liable for reasonable connection from ∆'s actif you are shown to be neg/ the mugger is not reasonable foreseable/ court is drawing a line/ tends to be more willing when its a 3rd person doing a delliberate act/criminalDon't reasonable conceive that people will do evil thingscourts dont usualy assume that someones bad act is foreseable but in some instances someways you can foresee what might happencould argue that even if there are two actual causes/ maybe guy coming in was a pre-emptive harm or intervening cause (prevents proximate cause and maybe actual cause)would have been preemptive if anyone who pushes it get a shock and just as she goes to push it someone comes in and knocks her downNo liabilitycan argue to the actual cause bc of the 3rd party that entered the situationactual cause but no proximate cause (not foreseable ) foreseable harm: electric shock from buzzer or friend hurts themselves letting her in p. 221 both of these cases there is not proximate cause Benaquista v. Municipal Generally speaking, not held to foresee the deliberate bad act of 3rd personPalsgraf v. Long Island Railroadpeople pusing and pulling people on the train are neg court must have found neg in order to get to proximate casue/ never gotten to causes w/o neg he's not terribly secure/ you should help him on the train/ πs werent neg? Yes, they were

he's not terribly secure/ you should help him on the train/ πs werent neg? Yes, they werewas this foreseable/Cardozo: Neg in the air will not due, a breach of duty doesnt mean ∆ can recoverneg in the first place= learned hand not only the likely hood but the severity vs the burden to prevent thisThere was def neg/ this type of harm can be seen, but to hurt someone across the platform to be hit by something that the shockwave knocked over, she is not w/in the foreseable scope of riskonly the likelihood whether or not it is foreseable for proximate causesomething is not foreseable/ if this explosin blew up a rock and it hit the guy, under those circustance thats proximte, π was too far away to foresee would be harmed by this (cant foresee that soPerson shocked by what they see you doing through a telescopeNYCA (highest court in NY) ∆ made a motion for directed verdict and should have gottenbc no reasonable jury can find that he wouldnt get directed verdict∆ is neg but could not have foreseen injury to this particular π, if they knew that fireworks would fall and explode, they would foresee the explosion hurts people near but not the ∆ (not w/in the scope of risk of ∆'s neg/ ∆ cant be liable for her injuryCardozo says that she was not close enough for soomeone to foersee her injury so they ∆ didnt even have a duty to her (people close to explosion) almost all of them are supposed to be jury ques and duyt is defined ny the law/courtOnly owed duty to people w/in the scope of riskThis case stands for proximate cause but Cardozo makes it about duty/majority view in most states since 1928nmust show that risk that ∆ neg created that that risk was foreseeable to cause this type oof harm to this type of person (harm and person w/in this particular risk)Duty: ordinary care under the circumstancesDiff obligation of duty:Land owner: trespasser, will not find for the π unless ∆ is willfully neg Med: duty to the patient if someone has superior knowlegge or skill, children Dissenting: if you neg casue something like to explosion here, anyone else who gets hurt proximately in terms of space andtime, (not 2 hours later or 5 blocks away) who cares that you couldnt foresee the particuar type of harm doesnt matter/ anyone proximate should be able to recoverif the harm itself could have been foreseen then under those cicumstances, you have proximate cause (depends on space and time)shouldnt disturb verdict of trial and appellant court

explosion happened an almost immed scales fell on her, not remote in terms of space and time A jury found that it was close enough in space and time, which is reasonable/ dont need to worry about the harm being close enough in space and timePolemis Case: drop a plank on ship, they are neg and a fire occurs and they are suedits pretty clear that But for is taken care off/ if it fell on someone's head is foreseableonce you find that they are neg, and casuesd this harm, as long as there is harm that is proximate in space and timeIrony: majority of the states follow Cardozo's conclusion reached( must show that kind of harm and kind of people to be hurt was foreseen)But the lang. from Andrew's dissent is used for proximate cause as opposed to remote (not duty) use to reinforce what Cardozo saidKind of foreseablitily: Cardozo and Andrews: both say that this depends on foreseablitli\DIff from Learned Hand formula : prob of somehing happening x severity x burdennot considering the burden or severity , just the types of harm and this part persona breach of duty doesnt mean ∆ can recover

Diff bw opinions: Cardozo say we lack proimate cause ulses the part harm and the part type od person the ahrm from the explosin can beif the harm can be foreseen then as long as she ins proximate and hurt by the explosion she is w/in the scope of risk

Must have not only a harm but the persons who you would exxpect ot be w/in that harmIrony: Cardozo didnt use the phrase proximate causation/ Dobbs say that most courts follow the foresable op but they are using the phrase from Andrew (proximate causantion)

Pre-emptive: the second dr getting off the hook bc 1sr on preempted any harm 2nd dr. causedMalpractice: the standard of care of prof in that area is the gauge/ if the ∆ is performing to the standard of comm (customary) no case

But for but cant say which one: they will be held jointly liable, since you cant tell and both were neg it will be up to ∆ to show non neg

Lost opp: not for causing harm but for failing to mitigate the harm caused by someone else, even if you cant prove by 51% then if you can prove something less you may be compensated up to that percent

Abrams v. City of Chicago

Calls an ambulance and it doesnt get there on time thorugh there neg (presumably)Se decides to have a firend drive her to the hospital and is struck by drunk driver BUT FOR ambulance peoples neg/ this wouldnt have happenedProven actual cause but not proximateNot w/in the scope of the risk created by ∆'s neg/ shoulfnt logically been held to foresee the accident/ this is notForeseable: baby is injured bc she delivers at homeDeliberate bad act is not foreseable

Wagner v. Int. Railwaysomeone moves to rescue and is injuredassume the railroad is neg and that actual and proximateBUT is the rescuer w/in the scope (is it foreseavle that someone will try to rescue/ danger invites rescue)youre liable to people directly hurt and the rescueris a rescuer foreseen? yes majority rule/ w/in the scope of the harmdoesnt mean they will recover/ means that ∆ directed verdict motion will be denied

Rescue Dotrine:Lambert v. Parrish/ not a rescuer but a concerned person/ husband rushed to her rescuenot the same as reaching down to help up someone

People say there's no proximate cause therefore ∆ is not neg really should say∆ is not liable for his negonce you prove the breach of theat duty/ even though neg breach of duty is most improtant element but still just an element

Snellenberger v. RodriguezOff has heart attack attending to child/ Is ∆ neg? No Arent people rushing to accident more foreseable? NO this is not w/in proximate causation/ neg here did ntot create a risk of this kind of harm or this kind of personHeart attack on behalf of the officer is not foreseable

A kid runs bw parked cars into the street and is hit/ no foresable/ not braking when seeing a ball come into the road/ foresaeble so neg

w/ regard to the neg/ must prove neg covers this type of harm and this group of people(Similar to neg perse only works if the statute is designed to prevents a certain type of harm and certain group of people)

Hughes v. Lord Advocate

ForeseableParticular way that these kids got burned could not be foreseen but court find that it is foreseableburns are part of the overall harm from the fire itself and from leaving the hold unattending w/ the lantern (not necessary to see all the particulars of the harm)

Doughty v. Turner ManufacturingNot foresable allowing cover to go into the vat so splash is foreseable but the chemical reaction is not

was this foreseable/Cardozo: Neg in the air will not due, a breach of duty doesnt mean ∆ can recoverneg in the first place= learned hand not only the likely hood but the severity vs the burden to prevent thisThere was def neg/ this type of harm can be seen, but to hurt someone across the platform to be hit by something that the shockwave knocked over, she is not w/in the foreseable scope of riskonly the likelihood whether or not it is foreseable for proximate causesomething is not foreseable/ if this explosin blew up a rock and it hit the guy, under those circustance thats proximte, π was too far away to foresee would be harmed by this (cant foresee that soPerson shocked by what they see you doing through a telescopeNYCA (highest court in NY) ∆ made a motion for directed verdict and should have gottenbc no reasonable jury can find that he wouldnt get directed verdict∆ is neg but could not have foreseen injury to this particular π, if they knew that fireworks would fall and explode, they would foresee the explosion hurts people near but not the ∆ (not w/in the scope of risk of ∆'s neg/ ∆ cant be liable for her injuryCardozo says that she was not close enough for soomeone to foersee her injury so they ∆ didnt even have a duty to her (people close to explosion) almost all of them are supposed to be jury ques and duyt is defined ny the law/courtOnly owed duty to people w/in the scope of riskThis case stands for proximate cause but Cardozo makes it about duty/majority view in most states since 1928nmust show that risk that ∆ neg created that that risk was foreseeable to cause this type oof harm to this type of person (harm and person w/in this particular risk)Duty: ordinary care under the circumstancesDiff obligation of duty:Land owner: trespasser, will not find for the π unless ∆ is willfully neg Med: duty to the patient if someone has superior knowlegge or skill, children Dissenting: if you neg casue something like to explosion here, anyone else who gets hurt proximately in terms of space andtime, (not 2 hours later or 5 blocks away) who cares that you couldnt foresee the particuar type of harm doesnt matter/ anyone proximate should be able to recoverif the harm itself could have been foreseen then under those cicumstances, you have proximate cause (depends on space and time)shouldnt disturb verdict of trial and appellant courtexplosion happened an almost immed scales fell on her, not remote in terms of space and time A jury found that it was close enough in space and time, which is reasonable/ dont need to worry about the harm being close enough in space and timePolemis Case: drop a plank on ship, they are neg and a fire occurs and they are suedits pretty clear that But for is taken care off/ if it fell on someone's head is foreseable

once you find that they are neg, and casuesd this harm, as long as there is harm that is proximate in space and timeIrony: majority of the states follow Cardozo's conclusion reached( must show that kind of harm and kind of people to be hurt was foreseen)But the lang. from Andrew's dissent is used for proximate cause as opposed to remote (not duty) use to reinforce what Cardozo saidKind of foreseablitily: Cardozo and Andrews: both say that this depends on foreseablitli\DIff from Learned Hand formula : prob of somehing happening x severity x burdennot considering the burden or severity , just the types of harm and this part persona breach of duty doesnt mean ∆ can recover

Diff bw opinions: Cardozo say we lack proimate cause ulses the part harm and the part type od person the ahrm from the explosin can beif the harm can be foreseen then as long as she ins proximate and hurt by the explosion she is w/in the scope of risk

Must have not only a harm but the persons who you would exxpect ot be w/in that harmIrony: Cardozo didnt use the phrase proximate causation/ Dobbs say that most courts follow the foresable op but they are using the phrase from Andrew (proximate causantion)

Pre-emptive: the second dr getting off the hook bc 1sr on preempted any harm 2nd dr. causedMalpractice: the standard of care of prof in that area is the gauge/ if the ∆ is performing to the standard of comm (customary) no case

But for but cant say which one: they will be held jointly liable, since you cant tell and both were neg it will be up to ∆ to show non neg

Lost opp: not for causing harm but for failing to mitigate the harm caused by someone else, even if you cant prove by 51% then if you can prove something less you may be compensated up to that percent

Abrams v. City of ChicagoCalls an ambulance and it doesnt get there on time thorugh there neg (presumably)Se decides to have a firend drive her to the hospital and is struck by drunk driver BUT FOR ambulance peoples neg/ this wouldnt have happenedProven actual cause but not proximateNot w/in the scope of the risk created by ∆'s neg/ shoulfnt logically been held to foresee the accident/ this is notForeseable: baby is injured bc she delivers at homeDeliberate bad act is not foreseable

Wagner v. Int. Railwaysomeone moves to rescue and is injuredassume the railroad is neg and that actual and proximateBUT is the rescuer w/in the scope (is it foreseavle that someone will try to rescue/ danger invites rescue)youre liable to people directly hurt and the rescueris a rescuer foreseen? yes majority rule/ w/in the scope of the harmdoesnt mean they will recover/ means that ∆ directed verdict motion will be denied

Rescue Dotrine:Lambert v. Parrish/ not a rescuer but a concerned person/ husband rushed to her rescuenot the same as reaching down to help up someone

People say there's no proximate cause therefore ∆ is not neg really should say∆ is not liable for his negonce you prove the breach of theat duty/ even though neg breach of duty is most improtant element but still just an element

Snellenberger v. RodriguezOff has heart attack attending to child/ Is ∆ neg? No Arent people rushing to accident more foreseable? NO this is not w/in proximate causation/ neg here did ntot create a risk of this kind of harm or this kind of personHeart attack on behalf of the officer is not foreseable

A kid runs bw parked cars into the street and is hit/ no foresable/ not braking when seeing a ball come into the road/ foresaeble so neg

w/ regard to the neg/ must prove neg covers this type of harm and this group of people(Similar to neg perse only works if the statute is designed to prevents a certain type of harm and certain group of people)

Hughes v. Lord AdvocateForeseableParticular way that these kids got burned could not be foreseen but court find that it is foreseableburns are part of the overall harm from the fire itself and from leaving the hold unattending w/ the lantern (not necessary to see all the particulars of the harm)

Doughty v. Turner ManufacturingNot foresable allowing cover to go into the vat so splash is foreseable but the chemical reaction is not

bc of the chemical change we have a different type of causation/ you were neg for dropping into the vat but it wasnt foresable not knowing that that chemical reaction will work

pg. 233Darby v. National Trust∆ wins this bc the Weils disease is not the cause/ he drownedif he had come down w/ this disease then this particulr harm is not w/in the scope of risk not foresablenot foresable that someone will drown

Thin skull: if you can foresee the harm, under these circumstances the degree may not be foreseable but you are still liable

p. 235 Note 3couldnt foresee that guy is rich once you're liable youre liable for all the damages

some states say can only recover for the $ (monetary diminusation), experts would testify to the future earning of person/some states say you may also recover for the lack of companionship

Hammerstein v. Jean Dev Westhotel knows he's a diabetic and put him on top floor w/ elevatorfire alarms goes off and he twists his ankle coming down the stairs reconcile Hammerstein andhe had a pre-existing condition and a minor thing can be dangerous/ this injury could be foreseen, doesnt mean he will win but will get to jury

in a sense the Medcalf case is similar/ there was intervention/ if someone is deliberately committing a bad act its not usually not foreseable/ can foresee neg/ reality of situation: this stance is eroding/ there are bad guys out there and so you should be able see some evil

Springs a leak/ Duerr throws a match and causes injuries to πif the guy threw the match to cause a fire/ then its interventingKentucky court changes its view/ some situation you should be able to foresee that someone is going to do something badif it is only neg then that is something thats foreseablenow: should ∆ be able to foresee that something bad is going to happenπ in Medcalf case would argue that ∆ should be able to foresee/ deliberate act byp. 237

fails to control access to key of the apt. and someone enters π's apt and rapes hershe sues ∆, not like Medcalf/ this is much more foreseablestill depends on the circumstances

Neg allows to workers broke the causal chain/ something diff than breaking in/ rape is a criminal act that ∆ had not warning or unlike the Tenny case, cant foresee the rape

Delany v. Renoyldsπ attempts suicide and uses ∆'s gun so she sues ∆ bc he should have known better attempted sucide is a intervening act/ unlawfull/ she wins at trial/ and its affirmed/ this was foreseable ∆ should hassumming he is neg and breached his duty/ BUT FOR his neg but he knew that she was depressed and taking drugs and knew where the guns waseven though suicide is usually an intervening act/ let's this case get to juryNot the majority rule: most courts dont apply this to suicide/ not foresable if ∆ is proven to be neg

if he is the prevailing party: he would be enitled to recovery of his costs

2 ∆ who cause seperate injury2 ∆s break arma nd legOne is liable for arm for other for legTwo ∆s/ single injury=But for either one of these actions by ∆s so both of the ∆ are responsible

Someone is driving a pizza delievery truck= if he is operating w/in the scope of the job there is joint liability/ vicariousbreaks his leg by going through stop sign= if you hit somene an dthe go to the hosp, wouldbt be at the hosp if you hadnt hit him in the 1st place. Dr. is respon for degree of neg treatement but not the case of the original broken leg

∆ releasing salt h20 on the same, both get to pond and destroy it=which one is respon?hrd to determine/ either one can say, you havent proved actual causation, so court says cause we cant tell which one came 1st then both are liable unless one of them can prove that the other is liable and they are not

Naderosn= fire causes damage to the π, other fires in the area, that prolly would have destroyed prop anywasIf jury can find that this fire was a subs cause of damge to the π, not enought to get ∆ off1.

Arises when Contributory negligence

Common law held that it barred π's recovery (complete defense) Most states operates to reduce π's recovery now

Intervening Act:

Derdiarian CaseBarrier doesn't protect him against car crashing through Contracting company appeals/ say that thy're only liableYou've proven actual cause but not proximateCourt says "NO< what is foreable is something was going to happen" its forseable enough to get to the juryDV motion should have been granted

Ventricilli CaseRented car bc trunk lid pops upCar lurches forward and injures πCourt says that If you rent a car w/ trunk that is bad and you got hurt w/in the scope of risk from the trunkRisk created was superceding by risk of the neg driverIf ∆ cause the harm to seek med treatment and treatment is botched, the ∆ is still liableThe dr who is neg is not off the hook, but ∆ and dr. are jointly resp.

Marshall v. NugentDoesnt win against Either remote in time or remote in placeTimeframe: car pulls off road and truck comes in an help, I'll go up the hill=doesnt seem to be remote in timePlace= Kind of harm= ∆ will focus on harm/ my neg caused you to go across the road but not to walk up the hillAffirmative offense doesnt effect the liabilityIntervening cause? can be argued/ person who was neg was walking across the hill/ my neg was forcing you off of the road but there was someone else here at the top of the hill/ sometimes this type of intervention is called a termination of riskMy harm was done w/ so harm suffered was by someone else

Court says: if car was back on highway and they had a collison 5 miles down the road/ this could be tied to the harm caused by ∆Had a risk and that ended and new harm is caused by someone else

There can be more than one actual cause!!

Note 4 p. 248Comparative Faultp. 251Almost all jurid have comp neg/ π can recover even if partly neg its selfEven in those min states, there are certain ways that π can defeat contri neg∆ has the obligation of proving π is contri neg/ 50/50 Its a complete defense unless π uses the last clear chanceIf π decides to cross street and gets 1/3 acroos and passes out in late June. ∆ approaches π and is 100 yards away and was busy talking to a passenger and runs over πIn contri neg/ no reLCC: under the circumstances ∆ should have seen this

Pure comp neg: can be π thats 80% and ∆ 20%, can still recover 20kMost states draw the line at 50%π can recover as long as π neg isnt greater than ∆as great

If π is 50% and ∆ 50%π recovers in Wisconsin but not in North Dakota

Going after Motel for neg TC finds Motel 3% and π 97%25k (3%) of 850K recovers

She's out of pocket 20-30k, If there were caps in this state would prolly have been reduced to under 300kMost πs want to bring case in State Court/ want more sympathetic juryJury was jaded/ What it considers equitable and just in Maine (jury decides) If they felt that she was 97%, maybe jury thought she was completely at fault

p. 267∆ bruises πs foot. If π lost foot bc refuses to take med actionloss of the foot is not respon of ∆Only the intial bruiseIf its π that fails to take steps to mitigate injury/ not ∆s fault ∆ is neg and hits π and goes to the hospitalIt is foreseable that a dr could mess up the injuries moreNot foreseable that π will not take care of themselves/refuse treatment

Once he comes into the hospital, diff situationIf a person should go to the hosp at 1st but goes laterNeg from not going to hosp at first is separate from neg done at the hosp

π is neg in not taking medIn Hammerstein, π was not neg for walking down the stairs bc the elevator was broken/ no contriutory negChristensen and BexigaIn both cases, ∆ is saying if we were neg, there was neg on part of π alsoSupposed to operate machine a certain way13 yr. consented to relationship Court finds that no contri neg as a matter of public policyReconcile: the risk of π conduct Non-reciprocal riskIf there's a collison to find comp/contri neg there's danger to both parties (usually much more to one party than other)Power punch press: no way that by his neg can he cause harm to machineSex w/ teacher: 13 yr can't cause harm to teacherMay give greater protection to the one that is harmedIf you cna show neg, ∆ cant reduce damages by showing conti neg

p. 268 Note 4If you drive around schoolbus and hit child, neg per seIf the driver thinks its clear and hit a kidThe kid saw a friend across the street and was hit, school system will say ok we were neg but what about kid's part?Statute says no! Can't reduce damages

Non-reciprocal risk means that you cant use contri neg/ may be a close call if Why did TC dismiss? In 1972 in NJ contri neg was a complete defense/ there's no doubt that kid did something wrong/ By finding that contri neg can't be a defense/ sent back to jury to decide if ∆ was neg in the 1st placeContri neg is a complete defense/ doesnt seem fair or just/ if havent gone to compartative scheme, one way to create balance or fairness is to bar contri neg as a def/ LCC: so π won't be totally defeated In states that have gone to comp neg/ contri neg has disappearedJury alloated who was most at faultIf jury finds that π is more than 50% neg themselves then no recovery

Leroy Fibre v. ChicagoSParks set fire to flax∆ claims that π is contri neg for having flaz so close to railroadTC: found for ∆AC: found that SC: Court is saying that even if he wasn't acting reasonably you use your land as you plsCant claim contri negThis is 1914, and if he was contri neg it would have wiped out his claim totallyGoing to see court (when justice calls for it) doing itDuty here is no diff from usuall duty to exercise reasonable care Court is not denying tht π was not acting reasonableIF you own property, its yours to do anything you wantMotore home wants to cross land: wont cause any ruts/ π still said no (was not acting reasonably) but can act however he wants in regard to your property

p.274 Note 3π walks out at night and was attacked∆ args that π was neg for walking outside at nightπ may argue that she has a right and is entitled to use public streetsπ must still find some kind of neg by townshipin terms of causation, 3rd person is an intervening/superceding causeShe might not be able to cover, bc of soome kind of gov immunityIf she can prove neg, π will argue that once she prove neg, her damages cant be lessened bc she has a right to be on the street

Note 4Court decides that she has a property right, so if she tells auth, they should protect her The sheriff and the town cant claim that she is neg bc she reported the rape

Must give car back to you and if damages, can recover if prove negπ sues bc jewelry is ∆ is robbed of jewelry, found for ∆ as a matter of lawHas right to use public streets/ doesnt have to pay π for the jewelry

If you have an entitlement, no duty to anyone wlse or yourself

Contri neg implies that you were neg in your duty to yourselfCrossing the street, going outside: entitlement no duty to yourselfIdea of entitlement is idea that law imposes (cross a public street)Must still prove neg/ in case you cna prove neg/ they cant say you were contri neg

If extened to say you have a right to open your door when someone knocks on it (court is not likely to find that as an entitlement) entitled to be safe/have lock and chain

Trad exception to Contri neg barThe rescue doctrine2 1. if ∆ cause a dangerous situation and π decides to rescue someone and it hurt they can sue ∆ whose neg created dangerous situation bc danger invites rescue2. Resucer can sue ∆ for putting x in dangerous situatuo, what if π is contri neg in the situaitonNo, there is no contri neg when rescuing someone

Last clear chance: If ∆ sees person lying in road and say I have the right of way and runs over him/ cant commit an intentional tort What is driver int. runs over the drunk guy and damages are 200k ∆ says Ok I m liable but so is the drunk guysContri neg or compar is a defense to neg claim not an intentional tortCant claim someone else is careless/ if someone knocks on door and she finds him and sues him/ he cant claim contri neg for battery

LCC: sees someone but drives over them unintentionally, there is possibly neg on drivers part and the drunkDriver had last clear chance therefore contri neg cant be used as a defenseLCC isnt as important in comp states/ contri neg has melded into the comp neg schema

Shepard v. Gardener Wholesale (woman w/ cataracts tripped on slab)Rule: A person operation under physical disability such as defective vision is not required to exercise a higher degree of care to avoid injury than is required of a person under no disability

Shepard v. Gardener Wholesale (woman w/ cataracts tripped on slab)Rule: A person operation under physical disability such as defective vision is not required to exercise a higher degree of care to avoid injury than is required of a person under no disability Shepard v. Gardener Wholesale (woman w/ cataracts tripped on slab)Rule: A person operation under physical disability such as defective vision is not required to exercise a higher degree of care to avoid injury than is required of a person under no disability

3. Public necessity Privilege to enter land or interfere w/ chattel of another if it is/ or appears

reasonably necessary to avert public disaster

Shepard v. Gardener Wholesale (woman w/ cataracts tripped on slab)Rule: A person operation under physical disability such as defective vision is not required to exercise a higher degree of care to avoid injury than is required of a person under no disability

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kkklffffdddhhhhhdhdhdhdhhlhl2h. Akk'h;kklk;hklk;lkhCh.1: Tort Law: Aims and Approaches and Processes

1. hWhat is Tort Law2. Thhe Aims and Approaches

A. Broad and Conflicting Aims