torts - suffolk law student bar association...
TRANSCRIPT
FINAL TORTS OUTLINE
Table of ContentsI. Torts................................................................................................................................2
II. Types of Torts..................................................................................................................3A. Intentional Torts......................................................................................................................3
1. Battery: requires intent to cause a harmful contact...................................................................32. Assault........................................................................................................................................33. False Imprisonment....................................................................................................................4
B. Negligence...............................................................................................................................4C. Strict Liability...........................................................................................................................4D. Accidents.................................................................................................................................4
III. Damages......................................................................................................................4A. Nominal Damages....................................................................................................................4B. Compensatory Damages..........................................................................................................5C. Noneconomic Losses: pain & suffering, mental upset...............................................................5D. Wrongful Death Statutes.........................................................................................................5E. Punitive Damages....................................................................................................................5F. Statute of Limitations..............................................................................................................5
IV. Intentional Torts..........................................................................................................5A. Intent......................................................................................................................................5B. Battery.....................................................................................................................................8C. Assault.....................................................................................................................................9D. False Imprisonment...............................................................................................................11E. Intentional Infliction of Emotional Distress.............................................................................11
V. Consent..........................................................................................................................12A. Consent.................................................................................................................................13B. Informed Consent/Medical Procedures..................................................................................15
VI. Defenses....................................................................................................................16A. Self – Defense........................................................................................................................16B. Defense of Others..................................................................................................................18C. Defense of Property...............................................................................................................18D. Necessity...............................................................................................................................19
VII. Negligence.................................................................................................................19A. Negligence: Risk-Utility Balancing..........................................................................................22B. Negligence: Knowledge – Emergency.....................................................................................23C. Negligence: Disabilities..........................................................................................................23D. Negligence: Custom...............................................................................................................24E. Negligence: Professionals.......................................................................................................24F. Negligence Per Se..................................................................................................................25G. Res Ipsa Loquitor...................................................................................................................26
VIII. Actual Causation........................................................................................................28A. But for Causation...................................................................................................................28
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B. Probabilities...........................................................................................................................29C. Loss of Chance.......................................................................................................................30D. Multiple Negligent Defendants ALL Causing Plaintiff’s Harm...................................................31E. Multiple Negligent Defendants NOT ALL Causing Plaintiff’s Harm...........................................32
IX. Proximate Causation..................................................................................................32A. Liability Limited to Reasonably Foreseeable Consequences....................................................33B. Thin Skull Rule.......................................................................................................................34C. Palsgraf v. L.I.R.R...................................................................................................................34D. Superseding Causes...............................................................................................................34
X. Negligent Infliction of Emotional Distress.......................................................................36A. Direct Negligent Infliction of Emotional Distress (NIED)..........................................................36B. Proving Emotional Distress.....................................................................................................37C. Bystander NIED......................................................................................................................37
XI. Limited Duty to Rescue...............................................................................................38
XII. Duties Owed by Owners of Land.................................................................................40
XIII. Affirmative Defenses..................................................................................................41A. Contributory and Comparative Negligence.............................................................................41B. Assumption of Risk................................................................................................................42
1. Express Assumption of Risk......................................................................................................432. Implied Assumption of Risk......................................................................................................43
C. Statutes of Limitations and Repose........................................................................................44
XIV. Joint Tortfeasors.........................................................................................................45A. Joint and Several Liability Under Comparative Fault...............................................................45B. Satisfaction, Contribution, and Indemnity..............................................................................45C. Settlement and Release.........................................................................................................46
XV. Damages....................................................................................................................46A. Special and General Damages................................................................................................46
I. Torts Tort Formula
o ACT + FAULT + CAUSATION + INJURYo You must act with intent to the actual harm, not just intent to do an act
What is a tort: Civil wrongs for which the victims have causes of action against the wrongdoers
o To provide a legal remedy to a person who has been subjected to treatment by another person that is deemed by society to be unacceptable, because otherwise, the wronged person might seek vengeance outside of the law
Why do we have tort law:o Tort law seeks to balance individual rights against positive and negative social
values
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o Although one aim of tort law is to discourage activities that our society had determined to be “wrong,” the criminal court is the sphere primarily focused on punishment of the wrongdoer
o Tort law seeks to make the plaintiff whole again Other concerns of tort law:
o Preventing trivial or inappropriate cases from clogging the courtso Weighing the proper punishment for property injury v. personal injury o Balance the good of many against the good of few
Ex. Medical malpractice Purpose: to make the plaintiff whole
o Utilitarian : impact present and future wholeo Retributive : punitive damages
POLICY: prevents people from taking justice into their own hands
II. Types of TortsA. Intentional Torts
Requires that the defendant’s intentional act causes a harmful or offensive contact with the plaintiff’s person
Plaintiff must show, to a preponderance of the evidence, that the tortfeasor intended and committed the act that resulted in the injury suffered by the plaintiff (EXCEPTION: IIED: has intent requirement threshold of recklessness)
Public policy goal : strong public interest to discourage the tortfeasor’s behavior through punishment
Intentional tortfeasors are liable for the full extent of injuries they cause, despite what they might have intended. Punitive damages awarded will be higher for intentionally tortuous behavior.
SoL: 1-2 years1. Battery: requires intent to cause a harmful contact
Requires intent to cause a harmful contact In the absence of such contact the defendant has not committed a
battery regardless of hot deliberately wrongful the defendant’s conduct has been
Intent to cause:o Purpose oro Substantial certain knowledge
Offensive or harmful contacto Offends reasonable sense of personal dignity
(culture/custom/necessary situation) oro If on notice that the person in particular views it as such
2. Assault Placed in a harmful contact (tort against the mind) Intentionally placing a person in:
o Apprehension of
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Must be within reasonable means to be able to complete battery
Must actually know it is coming Does not need to be fear (if fear, more damages)
Imminent harmful or offensive contacto Relatively immediate threato More than mere words – overt act
Circumstances can mitigate overt act3. False Imprisonment
Confined to a specific areaB. Negligence
A person caused damages because their person acted unreasonably Ex: A is swinging a bat and doesn’t look to see that B is there and B is hit SOL: 2-3 years
C. Strict Liability Public welfare offenses Keeping a dangerous animal in a home and it gets lose
o Society does not benefit from the tiger in the homeD. Accidents
No fault involved and there is a damage Mistake
o Is not an excuseo Parties are liable for damages caused by their own mistaken
understanding of the facts, regardless of whether they have acted in good faith
Ex. A is alone in the desert swinging a bat and hits B Will not permit recovery unless strict liability applies
o Certain types of activity should be held liable even if they are not negligent
Ex. Keeping a dangerous weapon Fault: you did something wrong which warrants you to be responsible for
damageso Moral and legal fault
Cannot punish for morality unless there is a duty Cannot punish innocent bystander
III. DamagesA. Nominal Damages
A token amount awarded simply to commemorate the plaintiff’s vindication in court
No physical harm or outrageous behavior
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For some intentional torts that do not involve physical harm or outrageous behavior, courts award nominal damages – one dollar perhaps – to successful plaintiffs
B. Compensatory Damages Compensate the plaintiff for losses caused by the defendant’s tortious conduct Attempt to return the plaintiff to the state she had been in before the tortuous
act suffered. Ex. Personal injury Include: economic losses such as lost earnings and reduced future earning
capacity, economic losses for personal injury (medical and rehabilitation expenses, both past and future), intangible (noneconomic losses like pain and suffering and mental upset past, present, and future)
C. Noneconomic Losses: pain & suffering, mental upsetD. Wrongful Death Statutes
Tortious conduct which causes a death Recover for is for the death itself
E. Punitive Damages The defendant’s tortious conduct is especially outrageous Seek to punish the tortfeasor for their tortuous behavior and discourage from
committing the same behavior in the future The amount of the award should be great enough, in relation to both the
defendant’s conduct and the defendant’s net economic worth to teach the defendant a lesson
F. Statute of Limitations Claims for intentional torts have the shortest limitations periods – typically, one
year from the time that the plaintiff discovers the injury. Unintentional, fault-based tort claims have somewhat longer limitations periods
– typically two years from the discovery of injury. When the victim of tortious conduct is under a legal disability when the statutory
limitations period would ordinarily start to run, the statute is tolled – does not start to run – until the disability has ended.
IV. Intentional TortsA. Intent
RULE: a person commits an intentional tort when she commits a voluntary act with the intent to cause a certain damaging consequence or with the knowledge that such a consequence is substantially certain to occur as a result.
o Material elements of a claim for intent Rule: there must be an intentional act on the part of the
defendant Rule: The defendant must intent to cause the result of the act.
The defendant either
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Acted with the purpose of causing the resulting consequences or
Knew that the consequences were substantially certain to occur as a result of the intentional act
Intention: the act must be done for the purpose of causing the contact or apprehension or with knowledge on the part of the actor that such contact or apprehension is substantially certain to be produced
Intent + actualize: Both are requiredo State of mind and event occurs
Act: volitional contraction of muscleo RULE: need to intend (purpose, substantially certain) the consequences
of the act Need a volitional act
How to prove intent: o Admit it (perfect proof)o Testimony of anothero Circumstantial evidence to infer intent (Most often)
Substantial certainty o Rule: Substantial certainty that it was so likely to happen as a result of
the behavior that it was almost as if you wanted it to happeno Almost a certainty that what you didn’t intend to happen will happen
If not substantial it can be negligence and no intent Garratt v. Dailey: Brian Dailey is liable for battery based on
his knowledge to substantial certainty that he would cause an offensive contact
o Intent vs. Motive Rule: an insane person or child will be liable for an intentional
tort if it can be shown that they desired the result of the tortuous act
Rule: the tortfeasor is liable for all of the injuries that result because of what was done, even if the consequences are graver than were anticipated
Child/youth : is a child capable of developing the level of intent required?
Parent is aware of child’s mischief, they can possibly be negligent
o BUT not an automatic to get the parent if a child did something
Eggshell plaintiff : as long as you committed the tort, if the damages are more excessive, too bad
Take the plaintiff as you find him Need the initial level of harmful/offensive contact
Idiosyncratic plaintiff : no intent to cause harmful contact
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Ex. Sunburn on back and you gently touch the back Causation Rule: tortfeasor is much more responsible for the indirect results of
an intentional tort as opposed to a negligent tort Mistake
o Rule: mistake does not excuse liability in intentional torto Ranson v. Kirner : while hunting shot and killed a dog instead of a wolf-
mistake Battery-Person Conversion- property In consequences of mistake, the consequences are intended, in
case of delivery, the consequences are torturous In order to prove intent one must show there is a desire for the consequences of
the act to occuro If you don’t desire the contact, but there is a substantial certainty the act
will occuro No Good Faitho SOCIAL POLICY: DUE DILLIGENCE
Ranson v. Kirner : while hunting shot and killed a dog instead of a wolf-mistake
Battery-Person Conversion- property In consequences of mistake, the consequences are
intended, in case of delivery, the consequences are torturous
Intent and Diminished Capacity o Persons with mental retardation and insane persons are held liable based
on intent as long as they are capable of formulating in their mind the intent set forth in the Restatement
Intent to Offend or Intent to Contact? o Some courts require “the plaintiff must prove that the defendant
intended the contact be harmful or offensive to the other person.”o The other courts require “the defendant intend contact with another and
that the contact result in a touching that would be offensive to a reasonable person
Transferred Intent o Rule: If a tortfeasor intends to commit one intentional tort but commits
another, it is assumed he intended that behavior and he will be held responsible for it
o Rule: If a tortfeasor directs an intentional tortuous act at a particular individual, but the consequences of that act are felt by another person instead, then the court will hold the tortfeasor responsible for the
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damages inflicted on the injured party as if he had been the intended victim
o The transferred intent doctrine operates to impose liability when a defendant has the intent to commit assault, battery, false imprisonment, trespass to land, or trespass to chattels and harm results to another’s person or property
o Intent to cause contact with one party is transferred to a third party when unreasonable touching/force is used because the Defendant has no right to commit such an act.
o If D uses reasonable force, intent is not transferred because he has a right to use reasonable force
In ejecting trespassers, individual has a right to use non-deadly force
o Intent to commit any one of the five torts will suffice to make out the intent for any of the others
Talmage v. Smith: There was a battery (harmful or offensive contact) even though he did not intent to hit the kids eye – still liable
B. Battery§13. Battery: Harmful contactAn actor is subject to liability to another for battery if:
1. He acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact and
2. A harmful contact with the person of the other directly or indirectly results
Rule: intent to cause harmful or offensive contact with the person of another or intent to cause the apprehension of such a contact and actualization of a harmful or offensive contact either directly or indirectly
Protects against the contact itselfo Look at intento Look at consequence
Garret v. Daily: Five-year-old pulls chair out from under old woman. Knowledge that harm might result would be negligent, while knowledge that harm would result (substantially certainty) goes to intent for battery
Constructive intent – D knew with substantial certainty that such contact would occur as a result of his actions – enough for establishment of a prima facie tort.
o Intent element of battery is fulfilled if one knew with substantial certainty that the contact would occur
Doesn’t have to desire contact/harm, just know contact it will occur
§18. Battery: Offensive Contact:1. An actor is subject to liability to another for battery if
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a. He acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact and
b. An offensive contact with the person of the other directly or indirectly results2. An act which is not done with the intention states in subsection (1,a) does not make the
actor liable to the other for a mere offensive contact with the other’s person although the act involves an unreasonable risk of inflicting it and therefore would ne negligent or reckless if the risk threatened bodily harm
Recovery is limited to the distress suffered during the “window of the anxiety” period, that is, for example the time between the possible exposure to HIV and the receipt of negative test results
Contact requirement (Harmful v offensive):o Harmful : any contact that alters the physical self or anothero Offensive : does not physically alter the body, but is sufficient assault on
personal dignity because it is unwantedo Direct skin to skin contacto Indirect- shooting a bullet or using an instrumento Brzoska v. Olsen
Doctor with HIV not telling patients. No evidence there was a transfer to a patient
o Fisher v Carrousel Motor Plate snatched out of man’s hand by manager, who shouted that
no Negro could be served. Touching a person or anything connected with that person in an offensive/insulting manner is an offense to one’s dignity (humiliating) and constitutes battery. Don’t need physical injury
Case of vicarious liability…employer is liable for tort committed by employee acting in the course of his or her employment
o Respondeat Superior: an employer is generally liable for the tortious conduct of its employee that is within the scope of employment
Objective test: reasonableness standard o Not subjective state of mindo Unwarranted by the social usages prevalent at the time and place at
which it is inflictedo Look at the context, history, was there prior consent, setting, etc. o POLICY: AGAINST OPENING PANDORA’S BOXo You do not need to be aware of the event
Ex. Knocked out and woke up with bruises Awareness:
o Rule: the person suffering the battery does not need to be aware of the act
C. Assault§21. Assault:
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An actor is subject to liability to another for assault if1. He acts intending to cause a harmful or offensive contact with the person of the other
or a third person, or an imminent apprehension of such a contact, and2. The other is thereby put in such imminent apprehension
Prima facie case- present/apparent ability to cause harm, intent to cause harm or apprehension of harm, and suffering of apprehension
The tort of assault involves a defendant who “touches the mind” of the plaintiffo Can be satisfied as a conditional threato Protects your mind from an imminent or harmful conduct
The imminent threat of force is sufficient to make out an assaulto Ex. Firing a loaded gun at a sleeping victim who did not know that she
was being shot at does not make out a civil assault even if she later learns that she was shot at
Could be prosecuted for criminal assaulto Ex. Weak assailant o Western Union Telegraph Co v. Hill: Clock woman calling handyman and
him on the other side the of the desk The common law tort cause of action “protects a person’s interest in being free
from imminent apprehension of harmful or offensive bodily contact Apprehension : note necessarily fear (alert)
o Must be reasonableo Not to be confused with fear or intimidation
All you need is reasonable apprehension of an offensive conducto It’s both an objective and subjective factor
Objectively, a reasonable person would have been apprehensive Subjectively, a person was actually apprehensive
Imminent : act intended by the actor as a step toward the actiono Doesn’t have to be instantaneous but no significant delayo Reasonable person test
Mere words document : typically not constitute enough for an assault o Simply saying you are going to do something usually does not mean there
is an assaulto Words alone are not enough. Need words coupled with conduct
Conditional threat : condition removes the reality of the threat Future threat: condition of a future act You do not need to have an assault to cause a battery
o Hypo: You come at me with a clenched fist, I see you, and you hit me Battery: through my act of moving my arm, I wanted to cause a
harmful contact Once you hit, you have caused the harmful contact
Assault: have to have intentto cause a harmful contact
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D. False Imprisonment§35. False imprisonmentAn actor is subject to liability to another for false imprisonment if
1. He acts intending to confine the other or a third person within boundaries fixed by the actor, and
a. His act directly or indirectly results in such a confinement of the other andb. The other is conscious of the confinement or harmed by it
Elements of False Imprisonmento The actor actually have an intent to confine to the fixed areao The actor must actually confine to the fixed areao Must be aware of confinement
If you are not aware but suffer a physical injury you can still collect for the act
Ex. Semi-consciousness If you can easily and reasonably escape, you are not falsely imprisoned Size of the area: room, box, city
o No legal reason to confineo Does not include being excluded from an area
Keeping out different from keeping in Means of confinement:
o Locked in a room, physical force (grabbing)o Can lack physical boundaries
Ex. Desert, mountain topo Can revoke consent for confinement to become falsely imprisoned
Shop Keeper privilege statute : o Threaten to call the police is usually not enougho Grant v. Stop-N-Go Market of Texas, Inc .
The shopkeeper’s privilege provides that a person who: Reasonably believes another person has stolen, or is
attempting to steal property, is privileged to detain that person in a reasonable manner and for a reasonable time
Certain mistakes if reasonable, excuses the shopkeeper POLICY CONCERNS: GOES FOR THE STORE OWNER AND
PROTECTION OF CUSTOMERSE. Intentional Infliction of Emotional Distress
§46. Outrageous Conduct Causing Severe Emotional Distress1. One who by extreme and outrageous conduct intentionally or recklessly causes severe
emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm
a. Most jurisdictions require physical manifestation b. The Restatement does not require physical manifestation
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The actor should have foreseen that the emotional distress would lead to physical harm
IIED:o The conduct must be intentional or reckless;o The conduct must be extreme and outrageous;o There must be a causal connection between the wrongful conduct and
the emotional distress;o The emotional distress must be severe
One must establish BOTH extreme and outrageous conduct as well as severe emotional distress
o Go beyond all human decencyo Intended or recklessly cause severe emotional distress
Parasitic emotional damages: emotion distress as a result of another tort
Emotional distress kicks in after the physical harm RESTATEMENT DOES NOT REQUIRE BODILY HARM BUT
MOST STATES DO Non-parasitic emotional damages: directly implicated on the tort
occurring You must prove there is a physical injury – depending on
the jurisdictiono Miscarriage, heart attack
o Harris v. Jones : Man who stutters You can transfer one’s IIED to another
o Only if the defendant wanted to inflict IIED to third party that can be transferred to plaintiff
Parents’ divorce; Defendant (dad) shoots the third party (mom) while son (plaintiff) was in the house
Depending on the state you will need to know the bystander (son) was there
o With immediate family you do not need to prove physical injury or physical harm
Bystander IIED: o Immediate family: do not need bodily harmo Non-family member: present and physical injury
POLICY: ELEMENTS TO PREVENT CATCH ALL ARGUMENT
V. Consent§892. Meaning of Consent:
1. 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
2. If words or conduct are reasonable understood by another to be intended as consent, they constitute apparent consent and are as effective as consent in fact
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A. Consent Affirmative Defense to a tort – state that the action happened but there was a
circumstance that justified ito raised by the defendant in pleading, affirmative defenses argue that even
if the prima facie elements of the tort are proven, D is still not liable because of additional facts allowing her to avoid liability. D must prove. Affirmative defenses are: immunity, consent, privileges
If gave consent must live with your choice - “To one who is willing, there is no injury”
Consent does not have to be verbal it can be implied Privilege : one is privileged to act in a certain way when one owes no legal duty to
refrain from so actingo Refers to conduct that would normally be prohibited, but, under the
circumstances, is permittedo Affirmative defense
Exception: if defendant raises it, plaintiff assumes the burden of proof
o Privilege (medical) Privilege to override a patient’s refusal to treatment in a life
threatening situation Usually when patient is unconscious, unable to provide
consent, and immediate action needed and consent of family cannot be obtained except if there is reason to believe this patient doesn’t consent (ie. Bracelet indicating such)
If not an emergency situation, then must get consent If refused consent, must honor their decision even if to
their detriment Consent : A person consents to the acts of another, or to the consequences to
occur, if one is subjectively willing for that conduct or those consequences to occur
o Generally done through communicationo Volenti non fit injuria : to one who consents, no wrong is done
Was consent given:o Informational pattern of behavior among individuals
Established relationship Verbal or actual, can be revoked
o Implicit consent Cannot be revoked
Ex. Getting pushed and shoved on the T during rush houro Expresslyo Actionso Apparent implied consent
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Custom and usage Individual custom: friends exchange hugs every morning
when they meet Societal custom: a person tapping you on the shoulder to
ask for directions, even if you do not desire the contact Actions and behaviors
Ex: on an ice skating ring you see someone falling so you grab their sweater to prevent them from falling
o Battery yes you touched themo Will not be held liable because you have a privilege
and the consent is implied to be saved Apparent Consent
Actions can lead someone to believe that they are consenting.
o Even if they were not consenting in their mind, if they don’t outwardly express it, they are still consenting
o Policy – can’t expect people to know what you’re thinking – reasonableness
“If you find that a reasonable person would see her actions as consenting, then the D would not be liable”
Through informal patterns of behavior that ave occurred between two people
o You need an establish relationshipo Can be revoked
When one does certain activities that have implied consent
o Cannot revoke O’Brien v. Cunard Steamship C. : Woman got vaccine shot even though she
claimed to have already had one. Hackbart v. Cincinnati Bengals, Inc . player was intentionally struck during the
game. Participating in a usually violent professional sport does not constitute consent to all injures which may be inflicted by an adversary and thus one who intentionally attacks or injures his opponent may be liable in tort.
Christmas v. Davis : Doctor does a less invasive but substantially similar procedure other than was consented to
Ineffective consent:o Duress: over came free will
Must be of an imminent natureo Not revealing something that is material in itself
Fraud/unreasonableness Fraudulent Consent (Mostly in the medical field)
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Natural inferences to a situation but are not true is not consent
Omitting an important fact which appears to be something else is not consent
Material misrepresentations can change consent, but collateral ones won’t
o Ex. Man and woman sleep together but he knows he has an STDno consent
o She thinks he is a Harvard grad and sleeps with him because of it, still consent not material
o Age: too young or too old in terms of mental capacity Some states have mature minor rule
B. Informed Consent/Medical Procedures Informed consent is defined as “the agreement by a person to a proposed course
of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct”
The law requires physician to disclose to his patient the material risks of a proposed treatment
o Failure to disclose is negligenceo A risk is “material” when a reasonable person, in what the physician
knows or should know to be the patient’s position, would be likely to attach significance to the risk
If treatment is completely unauthorized and performed without any consent at all, there has been a battery
o However, if the physician obtains a patient’s consent but has breached his duty to inform, the patient has a cause of action sounding in negligence for failure to inform the patient of his options, regardless of the due care exercised at treatment, assuming there is injury
Courts have recognized two situations where the hospital will be liable for the failure of the physician to provide informed consent:
o When the doctor is an employee of the hospital, liability may attach under the doctrine of Respondeat superior, and
o When the hospital acting as a research institution conducts clinical testing on human beings
The cause of action, based on lack of informed consent, is divided into three elements:
o The duty to inform o Causationo Injury
In a medical malpractice action, a patient suing under the theory of informed consent must allege and prove:
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o Defendant physician failed to inform him adequately of a material risk before securing his consent to the proposed treatment;
o If he had been informed of the risks he would not have consented to the treatment;
o The adverse consequences that were not made known did in fact occur and he was injured as a result of submitting to the treatment
o Scott v. Bradford : Complications in surgery How to determine duty in informed consent
o Reveal information to patient Two tests:
Reasonable patient o Full disclosure of all material risks incident to
treatment Ex. Side effects, risks, chance of the risks,
alternative treatment Majority view
Reasonable doctor o Custom for what is revealed, what doctor’s
consider importanto Look to other doctors for standard
Moore v. Regents: took his spleen and patented cells But for causation:
o But For : (majority) The patient has to show but for the risk, he would not have had
the surgery Given the fact that the dr. breached the duty of not revealing the
risk, would a reasonable patient having known the risk, not have chosen the surgery
o Subjective test : (minority) Look at the individual themselves Prove not what the reasonable person would do but this
individual patiento Exceptions:
Risk ought to be known or already known to the patient Emergencies: no opportunity for informed consent Withhold disclosure if it is best for the patient
Go to a family member
VI. DefensesA. Self – Defense
§65. Self-Defense by Force Threatening Death or Serious Bodily Harm
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1. Subject to the statement in subsection (3), an actor is privileged to defend himself against another by force intended or likely to cause death or serious bodily harm, when he reasonably believes that
a. The other is about to inflict upon him an intentional contact or other bodily harm, and that
b. He is thereby put in peril of death or seriously bodily harm or ravishment, which can safely be prevented only by the immediate use of such force.
2. The privilege stated in Subsection (1) exists although the actor correctly or reasonably believes that he can safely avoid the necessity of so defending himself by
a. Retreating if he is attacked within his dwelling place, which is not also the dwelling place of the other, or
b. Permitting the other to intrude upon or dispossess him of his dwelling place, orc. Abandoning an attempt to effect a lawful arrest
3. The privilege stated in Subsection (1) does not exist if the actor correctly or reasonably believes that he can with complete safety avoid the necessity of so defending himself by
a. Retreating if attacked in any place other than his dwelling place, or in a place which is also the dwelling of the other, or
b. Relinquishing the exercise of any right or privilege other than his privilege to prevent intrusion upon or dispossession of his dwelling place or to effect a lawful arrest
§63. Self-Defense by Force Not Threatening Death or Serious Bodily Harm1. 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
2. Self-defense is privileged under the conditions stated in Subsection (1), although the actor correctly or reasonably believes that he can avoid the necessity of so defending himself,
a. By retreating or otherwise giving up a right or privilege, orb. By complying with a command with which the actor is under no duty to comply
or which the other is not privileged to enforce by the means threatened
Restatement §70 and 71: The issue of excessive force, limiting the self-defense privilege to that amount of force that the actor correctly or reasonably believes to be necessary to protect himself, and holding the actor who uses excessive force liable only for so much of the force as is excessive
A defendant, who is the initial aggressor, can lose the right to claim self-defense, unless the defendant abandons the fight and gives notice to his adversary that he has done so
o Courvoisier v. Raymond: Police shot by jewelry store owner who was scared thinking he was one of the rioters who tried to break into his house/business
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An action of force is justified by self-defense wherever the circumstances are such to cause a reasonable man to believe his life is in danger or that he is in danger of receiving great bodily harm and that it’s necessary to use such force for protection
o Level of force is circumstantial Just because you are faced with it doesn’t mean you have all of
the options of force availableo Level of excessive force
The limited privilege is the amount of force that the actor correctly or reasonably believes to be necessary to protect himself and holding the actor who uses excessive force liable only for so much of the force as is excessive
o Rule: a person may use a reasonable level of force in comparison with the imminent threat with which he is faced
o Rule: level of force should be reasonable in comparison with imminent attack, taking into account victim and assailant
Duty to retreat:o Minority rule: unless you can do so safely, you do not have a duty to
retreat MA follows
Restatement: have a duty to retreat others jurisdictions have stand your ground
B. Defense of Others There is a privilege to actors who intervene and use force to protect and defend
others from threats and attacks by third persons The privilege is that the intervening actor is privileged to the same extent that
the one threatened by the third person would be privileged to defend himselfo Ex: the use of deadly force requires greater justification than does the use
of non-deadly forceo Person who intervenes takes on same status as the one they are
protecting If wrong in perceiving who may be victim and protects aggressor, depends on
jurisdiction Shoe stepping jurisdiction – Become aggressor If reasonable mistake, gives right to defend Can use the same reasonable amount of force that individual you are defending
doesC. Defense of Property
There is a privilege to actors who intervene and use force to protect and defend Rule: You can’t use deadly force or force that will cause serious bodily injury to
protect your property. Use force limited to the use of force reasonably necessary to the situation as it appears to the defendant
You can’t use deadly force to protect your property
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o Katko v. Briney : Couple rigged a spring-gun to go off in their uninhabited farmhouse if someone trespassed
Not allowed to use deadly force to protect property, unless you are being threatened with deadly force a warning sign does not change ability to use deadly force
Common Law – even in your own house, you cannot use deadly force unless it’s being threatened against you
Some jurisdictions will allow deadly force for trespass (Texas)D. Necessity
Vincent v. Lake Erie Transportation Co. : ship is kept docked and causes damage to dock during storm
Necessity is when something (e.g. destruction of property) needs to be done in order to protect the community
o As long as necessity is present, good faith and best judgment prevails (even if the event does not end up happening)
While private necessity permits the invasion of another’s property (trespass) even if it is not done in negligence, the invader is liable for resulting damages for protecting his own property at the cost of another
o Placing liability on the privileged trespasser places the incentive on him to analyze the risks involved in his trespass, and not to err in his favor…both sides will balance interests/costs and the right decision will be made
o Act of god/non-intentional pass for trespasso Public necessity – always a defense
Benefits many peopleo Private necessity – benefits limited number of people
Always a defense, but liable for damages causedo Necessity wins over defense of property rights
VII. Negligence§3. Negligence: a person acts negligently if the person does not exercise reasonable care under all the circumstances. Primary factors to consider in ascertaining whether the person’s conduct lacks reasonable care are the foreseeable likelihood that the person’s conduct will result in harm, the foreseeable severity of any harm that may ensue, and the burden of precautions to eliminate or reduce the risk of harm.
§291. Unreasonableness: How determined; magnitude of risk and utility of conduct where an act is one which a reasonable man would recognize as involving a risk of harm to another, the risk is unreasonable and the act is negligent if the risk is of such magnitude as to outweigh what the law regards as the utility of the act or the particular manner in which it is done
Types of Negligenceo Risk utilityo Knowledge
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o Disabilitieso Customo Professionals o Negligence per se
Negligence- unintentional caused harms/torto Failure to perform an owed duty of care that directly or indirectly results in an
injury To establish a cause of action in negligence, a plaintiff must prove facts that establish
each of the following five elements:o Duty . Duty to act reasonably to avoid causing physical harm
Reasonablynegligence Duty when:
Special Relationshipo Judge createdo Statute created
Good Samaritan statute: if render aid where there is no duty, they are protected from liability (some completely immune, others say only for gross negligence or conduct). Doesn’t create duty to aid, just protection (usually a medical provider)
o Morally created (parent-child, employee-employer, carrier-passenger, doctor-patient, lifeguard-swimmer, correctional officer-inmate)
In the RTH case (sexual assault case where wife can be liable):
Knowledge or position/special reason to know or discover risk of harm
Opportunity or ability to exercise care to prevent the harm
Tarasoff case (psych patient killed gf) Exception when a special relationship to
person whose conduct needs to be controlled or with potential victim
If a therapist has reasonable suspicion that is dangerous, they have duty to warn victim
Codified this against it: if communicated to therapist against a reasonable, identifiable victim
More narrow because has to communicate and identifiable victim
Risk creationo Have a duty to not create high risk environmentso If someone is rendered helpless and instrumentality in the
control of another, there is a duty to act (e.g. in a business)
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No-duty ruleo Fact that action is necessary (someone needs help) does
not impose duty to acto If start to act and choose to stop
Reasonable care while providing aid Can’t leave them in worse position (NOT condition)
Breach of Duty . Plaintiff must establish that the defendant failed to act reasonably
What constitutes reasonable care What duty is owed?
Causation: Plaintiff must prove a connection between the defendant’s negligent conduct and the harm suffered (cause-in-fact)
Proximate—foreseeability But For
Proximate cause Damages : Necessary for a plaintiff to suffer actual, tangible harm in order
to make out a prima facie tort of negligence (Harm) Personal, emotional, or property injury NEED ACTUAL INJURY
Elements of negligence:o Duty : Obligation recognized by the law requiring actor to conform to a certain
standard of conduct for the protected of others against unreasonable riskso Breach of Duty . Failure to conform to the reasonable standardo Causation: D’s act was both the “but for” and “proximate cause” of the harmo Damages : there must be actual injury
What constitutes reasonable behavior under the circumstances Under breach of duty: Lubitz v. Wells : Father left gold club in the backyard; son picks it up swings and hits
friend United States v. Carroll Towing Co : barge sank, bargee was away from barge There are only five traditionally recognized categories of excuses for failure to comply
with a statutory standard of care. o The violation is acceptable in light of the person’s legal incapacity, such as when
dealing with a childo The person neither actually knows nor should know of the opportunity for
compliance with the statute, such as the failure to recognize having a taillight out
o The person is unable to comply after taking reasonable care, like in cases dealing with impossibility
o A person is met with an emergency not created by his or her own misconduct, such as a tire blowout causing a traffic violation
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o When compliance with the statutory standard would create a greater risk of harm, such as walking on the wrong side of the road because of unsafe conditions on the correct side
A. Negligence: Risk-Utility Balancing§291. Unreasonableness; How Determined; Magnitude of Risk and Utility of Conduct: Where an act is one which a reasonable man would recognize as involving a risk of harm to another, the risk is unreasonable and the act is negligent if the risk is of such magnitude as to outweigh what the law regards as the utility of the act or of the particular manner in which it is done.
Negligence Liability:o The owner’s duty to provide against resulting injuries is a function of
three variables: To see if it is unreasonable, B < PxL (Burden, Probability, Loss)
The probability that she will break away/of the harm (P) The gravity of the resulting injury, if she does (L) The burden of adequate precautions (B) Basically one should take all precautions such that the
burden of taking on those precautions is less than the probability of the event occurring times the liability incurred if the even does occur….balance cost and risk
Marginal cost When the marginal cost of each accident begins to exceed
the marginal cost of each precaution, at that point the actor has demonstrated reasonable care and is no longer negligent.
No difference in amount of precautions an actor would take between negligence and strict liability
o Reasonable person standard : to see if a person of ordinary prudence would do what D did under the same circumstances.
If one recognizes the risk, would that person have acted differently? If so, it’s negligence
Is a fictitious “normal” person – if they would have chosen the same decisions, due care in facts known to the actor
Risk Utility Testo % of harm (specific or general)o Gravity of Harmo Cost to avoido Other alternativeso Utility (value) of P’s or D’s activityo Washington v. Louisiana Power and Light Co . – decedent was
electrocuted when he accidentally allowed his band radio antenna to come into contact with a electrical wire in his backyard
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B < PL Great harm, low probability….does not equal or exceed burden or
costs of precautions of relocating or insulating the power lines o Timpte Industires v. Gish : fell from a trailer but risk did not outweigh
utilityB. Negligence: Knowledge – Emergency
§12. Knowledge and Skills: If an actor has skills or knowledge that exceed those possessed by most others, these skills or knowledge are circumstances to be taken into account in determining whether the actor has behaved as a reasonably careful person
Cordas v. Peerless Taxi cab : robber tried to escape and taxi cab driver abandoned car and hit innocent person on street
In an emergency, the reasonable test under the situation As long as you do not create the emergency, it is a characteristic of the situation Emergency Doctrine
o When a person is confronted with a sudden emergency, he is not held to the same accuracy of judgment as is required under ordinary circumstances. If he pursues a course of action such as an ordinary prudent person placed in a similar position might choose, he is not guilty of negligence, even though he did not adopt the wisest choice.
o Cannot use emergency if you have created the emergency out of your own negligence
o Policy: In emergency cases, do not have time to evaluate what to doC. Negligence: Disabilities
§10. Children: Under age for youth(a) A child’s conduct is negligent if it does not conform to that of a reasonably careful person of the same age, intelligence, and experience, except as provided in subsection (b) or (c).(b) A child is less than five years of age is incapable of negligence.(c) The special rule in Subsection (a) does not apply when the child is engaging in a dangerous activity that is characteristically undertaken by adults
Attributes of the reasonable person with the disabilityo Must exercise reasonable careo Policy: they are not the same as a “normal” person
Roberts v. State of LA : blind man didn’t use cane Mental illness:
o Very rarely taken into accounto Society is more sympathetic to physical disabilities over mentalo Exception: developmental delays
Age: o Youth: below the age of 18, chronological age always relevant
Reasonable person for chronological age and development characteristics
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Children must be compared to the reasonable child at the same age, experience, intelligence, and maturity, etc.
o Exception: Depends on the jurisdiction as to which they will followchose one
Inherently dangerous activity (broadens activities) Activity ordinarily done by adults (could narrow activities)
Stevens v. Veenstra : 14-year-old taking drivers ed Policy: Discourage engagement in these activities and want to be
cautiousD. Negligence: Custom
Trimarco v. Klein – P was severely injured when a glass shower door shattered as he stepped out of the shower
What most people under the same conditions would doo Reasonable analysis of factors
When proof of an accepted practice is accompanied by evidence that the d conformed to it, this may establish due care
However, when proof of a customary practice is coupled with a showing that it was ignored and this departure was the proximate cause of the accident, it may serve to establish liability
New v. old customo Recognized by a trend (reject older custom)
Higher standard Relevance of Custom
o Custom can be persuasive to show a standard because it shows what the reasonable person may be doing and should act
o Custom is relevant, but not dispositiveo Instruction:
In determining whether failed to exercise due care, you may consider custom along with other evidence, if he failed to do what is usually done in the circumstances
Evidentiary Power of Customo Black letter law: departure from industry custom is relevant but does not
require a finding that the actor was negligent Reality, the defendant who is in violation of a widely recognized
industry practice is dead in the watero Conformance is relevant but does not require a finding that the actor was
non-negligentE. Negligence: Professionals
Not an average standard, but ordinary (otherwise half would operate under standard)
o Cannot guarantee a result (unless expressly promised) Professionals have and use the knowledge, skill, and care, ordinarily possessed
by members of their profession in good standing
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Boyce v. Brown : did not take an x-ray but was not reasonable for that time The more you get into a specialty, the less leeway for the reasonability Jury: lay people
o Can’t make these decisions so lean on experts Helling v. Carey – ophthalmologist did not test for glaucoma on a 32-year-old
patient and she went partially blind. Informed Consent
o Providing all material risks (those that might change their mind) and alternatives for patient to form an informed decision
o Issue of what is material – Causation (had they known, they would have chosen a different alternative or would not have done the surgery all together
Material to a reasonable patient? (strips autonomy of patient) Material to this patient in particular? (self-determination)
o Exceptions But not those that are known or ought to be known Not when disclosure would alarm an emotionally upset patient or
if incapable to determine what to do given their condition Standard of care for Professionals
o A professional who holds herself out as competent to practice in a field cannot argue that she acted reasonably based on the knowledge and skill that she actually had
o Problems raised Juries are incapable of determining the professional standard of
care without the aid of expert witnesses from that specialty The judge will not give the jury a simple reasonable person
instruction but will instead ask the jury whether the defendant acted with the skill and knowledge normal to the profession
F. Negligence Per Se§14. Statutory Violations as Negligence Per Se. An actor is negligent if, without excuse, the actor violates a statute that is designed to protect against the type of accident the actor’s conduct causes, and if the accident victim is within the class of persons the statute is designed to protect
Tort and Criminal law have a disconnecto You can break a criminal law and tort does not find it unreasonable
Negligence per se: Use of finding a violation of a criminal statute that is also unreasonable
o Plaintiff only have to prove the statute has been violated and the jury has to agree
Doesn’t weigh the optionso Exceptions which are permitted: very narrow; narrowly construed
The violation is reasonable because of the actor’s incapacity child
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He neither knows nor should know of the occasion for compliance Car light just went out
He is unable after reasonable diligence to care or comply 10 inches of snow can’t get out of house can’t clean
the sidewalk He is confronted by an emergency not due to his own misconduct
Child runs in front of you so you turn the wheel on to oncoming traffic and cause an accident
Compliance would involve a greater risk of harm to the actor or to others
Risk hitting a child versus hitting another car Threshold questions
o Was the statute created to protect the harm suffered by the plaintiffo Was it created to protect the class of the plaintiff
Used when a duty to act already exists and what behavior is that statute protecting
o Quantifies duty Usually used by the plaintiff against defendant to prove the defendant violated
the statuteo Can be used by the defendant to show the plaintiff was negligent
Reque v. Milwauke : bus violated the and a woman got hurt but statute was not created to protect the plaintiff
Martin v. Herzog – P was driving a buggy without lights when he was hit by DDo The unexcused omission of statutory signals set out to safeguard society
is more than some evidence of negligence Stachniewicz v. Mar-cam: bar violated a statute and served after the assailant
was already intoxicated but could not show that one drink after being intoxicated cause the fight
Statutory private rights of Action: Four step test to infer a private right of action from a federal criminal statute
o The plaintiff must be a member of the class for whose special benefit the statute was enacted
o There must be indication of legislative intent to create a private right of action
o The private right of action must be consistent with the underlying purpose of the statute
o The plaintiff’s cause of action must be one that is not traditionally relegated to state law
G. Res Ipsa Loquitor§17. Res Ipsa Loquitur. The factfinder may infer that the defendant has been negligent when the accident causing the plaintiff's physical harm is a type of accident that ordinarily happens as a result of the negligence of a class of actors of which the defendant is the relevant member. (“The thing speaks for itself”)
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To prove theory: direct evidence, inference (circumstantial evidence), some negligence was used
o Where no specific evidence is available, a jury may rely on circumstantial evidence to conclude that the defendant’s conduct was negligent
o When accidents of a particular nature do not occur regularly without negligence, the fact that an accident occurred can be used to show neligence
Circumstances warrant an inference of negligence which the jury may draw or not, as their judgment
o Circumstances suggest that it does not ordinarily happen without negligence
Defendant is more than likely 50% or more negligent Raises presumption of negligence which requires jury to find neg. if the D cannot
produce evidence to rebuto Must be in attributable to one D o Under control of the Defendant (control does not have to be immediate
control)o Not only raises such a presumption but also shifts the ultimate burden of
proof onto D and requires him to prove by a preponderance of all the evidence that the injury was not caused by neg.
Elements of res ipsa loquitur requires:o Occurrence be of a type that does not ordinarily happen unless someone
has been negligento The instrumentality that caused the injury must have been within the
defendant’s exclusive control Exclusivity is sufficiently shown if the defendant had control of the
instrumentality at the time of the negligent act, even if control might have not been exclusive when the injury occurred
o The injury must not have been caused by plaintiff More likely than not, due to negligent behavior
o Has to be a way this does not occur absent one’s negligenceo Due to a specific defender’s negligence
Ybarra: Went in for an appendectomy and came out with neck
pains Minority view but because the doctor’s had a duty of care
o Burden shifting : under certain circumstances, shift burden of poor to defendant
Sullivan v. Crabtree : Car went off the road but couldn’t determine the
negligence Three procedural effects:
o Inference of negligence
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o Presumption of negligenceo Shift the ultimate burden of proof to the defendant
Judge Function Jury FunctionNegligence per se 1) plaintiff is member of class
that statute protects?2) statute is remedy for harm that that plaintiff suffered?
1) violation of the statute2) causation 3) damages
Res Ipsa Loquitor 1) event does not occur absent negligence?2) 50+% likely the defendant
1) event does not occur absent negligence?2) 50+% likely the defendant
VIII. Actual CausationA. But for Causation
Actual causation: When the plaintiff’s harm would have occurred even if the defendant had not acted negligently, then the defendant’s negligence did not actually cause the plaintiff’s harm. The defendant’s negligent conduct must be a but-for cause of the plaintiff’s harm.
But for/causation in fact: but for the negligent act, the injury would not have occurred
The relationship between negligence and injuryo Has to be more likely than not
Ask: why is the behavior negligent in the first place Perkins
o Car and train hit. Car was negligent by crossing the tracks without reasonable care but the train was 12 miles over the speed limit.
o No but for causation because even if the train was going the speed limit, the accident would’ve still occurred
Ford v. Trident o Seaman goes overboard and drowns. There was no witness and therefore
could not prove a causal relationship that having one life boat and its placement increased the time to get in the water and save the man
Reynolds o Reynolds fell in the dark and did not have a handrail to catch o Duty to make accommodations that meet the needs of all people
Guest statute: passenger in car can’t sue driver for negligence – only if gross Risk of harm: if the risks of harm are generally obvious to a reasonable person,
no duty to warn of the risks ariseso Ex. Sharp knifeo When the risks of harm are not generally obvious, but the defendant
proves that the particular plaintiff knew of the danger from other sources, courts have ruled as a matter of law that the defendant’s failure to warn did not cause the accident
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B. Probabilities Problems of proof: courts ask whether one side or the other has produced a
sufficient quantity of proof of actual causation When the issue is one that lies beyond the range of observation and experience
of the jury such that they don’t have knowledge of the subject, expert testimony is conclusive; i.e., it is not advisory such that jury can decide how to consider it in their verdict.
Plaintiff must show that is was the negligence of the defendant that caused in the injury. Kramer – where glass cut a persons’ head, then they developed skin cancer in the same spot not ‘but for’ causation
o Could sue for stitches, medical testimony was inconclusive, can’t find guilty on JUST SPECULATION BY WITNESS
Mathematical equations help prove a point, but cannot stand alone as proof. Just because only one bus company had license to be driving in the city doesn’t mean every bus had to be owned by them.
Kramer o Window falls out and cuts the plaintiff. Developed cancer in the same
spot as the cut a few years later. o Mere fact that the cancer came after the cut is not enough to prove but
for causation Toxic Exposure
o Exposedinjury Need to prove more likely than not Prove company is not up to custom or it is an unreasonable
custom o Agent Orange :
Soldiers came back with cancer and their children had birth defects
Seemed to be a connection with the agent orange o To Prove toxic exposure
Has to be evidence that being exposed to the chemical could cause this injury
The exposure caused the injurymore difficult to proveo Signature in jury: traces of the chemical in the organ and an expert can
say more likely than not Plaintiff has to prove injury was not caused by something else
o When to allow expert testimony General acceptance Rate of error Rested by others Peer review Tests pre-exist the litigation
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C. Loss of Chance But for the event, I had a more likely than not chance to to survive
o Injury doesn’t equal death, but loss of chance of survivalo Less than 50% chance recoveryo Use when it doesn’t meet the traditional but for case
A common method for assessing loss-of-chance damages is to multiply the full damages that the plaintiff suffered by the percentage of the patient’s chance of survival that was lost.
o EX: if a patient would have had 70% chance of survival but dies as a result of the negligence of his physician, and the full recovery for the death would have been $100,000, the physician is responsible for 70% of the total = $70,000
Herskovits v. Group Health Cooperative of Puget Sound o Plaintiff was wrongly diagnosed. Doctor did not detect cancer and the
plaintiff died. The plaintiff had 39% of survival if doctor had detected correctly.
Joint Offenderso In concert: both are but for causation for all injuries
Acting in agreemento Joint liability: separate acts that are rejoined in a single action
More than one defendant is negligento Several liability: jury apportion faulto Indivisible injury – both defendant for both medically separate injuryo If we are dealing with joint tortfeasors (both but-for cause) that negligent
caused leg and concussion they are indivisible If divisible plaintiff can only collect from each the damage they
caused even in a joint and several liability jurisidiction o EX: X and Y both shoot towards Z and one hits the eye and other the leg
They are divisible injuries Not tortfeasors
If one hits left eye and the other the right eye they are separate injuries to each eye which are divisible BUT the blindness is a tortfeasor
o Hill v. Edmonds Negligence: parked car in middle of the street without lights on
but the driver was not paying adequate attention while drivingo Summers v. Tice
Acting completing independent of each other, both failed to use reasonable care while discharging their weapons and hit summer’s eye and lip
Sues both for negligence but does not know whose bullet hit eye and which hit lip
Burden of proof on the plaintiff
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BUT, both are clearly negligent so the burden is shifted to the defendant
o Burden shifting More likely than not both are negligent Not due to the plaintiff’s inability to show Most of the time, the defendants are in a better position to know Court will not shift until they know the defendant is negligent
o Sindell: Mother took the pharm. DES and children as a result developed
tumors and cancers. Causal relationship 5 of the 200 manufacturers were brought in. couldn’t prove the
but for because it was unclear who made the pill Burden shift because the 5 def. brought in constituted 90% of the
market at that time Market share liability: P figure out what percentage of the
market each company held and damages determined by market share
o Limited to DES casesD. Multiple Negligent Defendants ALL Causing Plaintiff’s Harm
Section 27. Multiple Sufficient Causes: If multiple acts occur, each of which alone would have been a factual cause under section 26 of the physical harm at the same time in the absence of the other act(s), each act is regarded as a factual cause of the harm
Hill v. Edmondso Negligence: parked car in middle of the street without lights on but the
driver was not paying adequate attention while driving Kingston v. Chicago & N.W. Ry. In concert: both are but for causation for all injuries
o Acting in agreement Joint liability: defendants can be joined in a single action, although a plaintiff is
not required to join them Several liability: defendants are each liable in full for the plaintiff’s damages,
although the plaintiff is entitled to only one total recovery Defendants who are jointly liable can be joined in a single action, although a
plaintiff is not required to join them Defendants who are severally liable are each liable in full for the plaintiff’s
damages, although the plaintiff is entitled to only one total recovery. Common law two circumstances in which two or more actors acted tortuously
toward their victim gave rise to what is now referred to as joint and several liabilities:
o When they acted in concert to cause the harmo When they acted independently but caused indivisible harmo EX: two people race but one hits the plaintiff both are liable
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RULE: Where there are multiple negligent acts that contributed to the harm, none of which alone would have caused the plaintiff’s injuries, each tortfeasor is liable for all the plaintiff’s injuries
E. Multiple Negligent Defendants NOT ALL Causing Plaintiff’s Harm
Substantial factor: appropriate when two defendants act negligently and either’s action would have been enough to cause the injury
Summer v Tice o Rule: When two or more persons by their acts are possibly the sole cause
of a harm, or when two or more acts of the same person are possibly the sole cause, and the plaintiff has introduced evidence that the one of the two persons, or the one of the same person’s two acts, is culpable, then the defendant has the burden of proving that the other person, or his other act, was the sole cause of the harm.
o Acting completing independent of each other, both failed to use reasonable care while discharging their weapons and hit summer’s eye and lip
o Sues both for negligence but does not know whose bullet hit eye and which hit lip
o Burden of proof on the plaintiffo BUT, both are clearly negligent so the burden is shifted to the defendant
Burden shifting o More likely than not both are negligento Not due to the plaintiff’s inability to showo Most of the time, the defendants are in a better position to know
Court will not shift until they know the defendant is negligent Sindell v. Abbott Laboratories:
o Mother took the pharm. DES and children as a result developed tumors and cancers. Causal relationship
o 5 of the 200 manufacturers were brought in. couldn’t prove the but for because it was unclear who made the pill
o Burden shift because the 5 def. brought in constituted 90% of the market at that time
Market share liability: P figure out what percentage of the market each company held and damages determined by market share
Limited to DES cases
IX. Proximate CausationSection 29. Limitations on Liability for Tortious Conduct. An actor’s liability is limited to those harms that result from the risk that made the actor’s conduct tortious
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A. Liability Limited to Reasonably Foreseeable Consequences Proximate cause: way in which the law puts an end to but for causation effects
o Use if something is a “but for” cause to see if the harm was something foreseeable
o Cannot be too attenuatedo How to determine:
Events that stem from main event Zone of danger Foreseeable
Type of harm Person injured
o Usually determined by the jury Exception: persons engaging in acts that are inherently
dangerous (such as firing a gun) will be liable almost to the extent of an insurer
o Marshall v. Nugent: Truck crossed over the center live and forced Harriman’s car off
the road Marshall then in the road and was struck by another car Courts do not require that the details of how the defendant’s
negligence “works out to another’s injury” be foreseeable to establish proximate cause
o Demurs v. Rosa Defendant’s dog would roam around. Plaintiff brought dog back
and slipped on ice hunting his back Not proximate cause; chain of causation broke
Question of foreseeability o What constitutes foreseeable harm:
Does not require more likely than not Something that a reasonable person is aware of when they act
negligently Objective
Foreseeability for the egg shell (Thin Skull Rule) plaintiff: Did the collision lead to the D.T.S
o But for causation Dies from D.T.S.
o Proximate causationo Foreseeable you will hit someone for speeding
Owens: o Glass bottle of soft drink explodes in kitchen. When he comes back 5
minutes later to clean up, his socks get wet and he slips and injures himself
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Harm should’ve been from the bottle exploding but it is foreseeable there is a clean up
Proximate: liability for negligent conduct is not unbounded The actor should be held liable only for harm that was among the potential
harms—the risks—that made the actor’s conduct tortious The original tortfeasor is not liable for bringing about the subsequent and
disastrous rendezvousB. Thin Skull Rule
Plaintiff: a tortfeasor must take his plaintiff’s as he finds him Lends to liability and damages The principle is that a negligent person is responsible for the direct effects of his
acts, even if more serious, in cases of the sick and infirm as well as in those of healthy and robust people
Idiosyncratic plaintiff: you pat your friend on the back who just had surgery, you did not know, and because of the pat he has to go back into surgery
o No liability McCahill
o Taxi hit a man and injured his knee and broke his legso Two days later in the hospital he died from DTS
The accident accelerated the DTS Proximate cause: dies from DTS
C. Palsgraf v. L.I.R.R. Two guys try to get on a train as it leaves the station. One man gets on, the other
needs help from two employees and in the process his bag containing fireworks fell and exploded. The scale falls over due to the explosion and falls on Palsgraf and sues railroad
Has to prove railroad is negligento Cannot be held responsible for those who are not in the zone of danger
created by the negligent behavior DANGER ZONE
o Must be in ito Zone of danger rule:
A plaintiff can recover damages if he Is in danger of physical impact Reasonably fears for her own safety Suffers serious emotional distress because of that fear
o §46. Negligent Conduct directly inflicting emotional disturbance in another
D. Superseding CausesSection 442. Considerations Important in determining whether an intervening force is a superseding cause. The following considerations are of importance in determining whether an intervening force is a superseding cause of harm to another:
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(a) the fact that its intervention brings about harm different in kind from that which would otherwise have resulted from the actor's negligence;(b) the fact that its operation or the consequences thereof appear after the event to be extraordinary rather than normal in view of the circumstances existing at the time of its operation;(c) the fact that the intervening force is operating independently of any situation created by the actor's negligence, or, on the other hand, is or is not a normal result of such a situation;(d) the fact that the operation of the intervening force is due to a third person's act or to his failure to act;(e) the fact that the intervening force is due to an act of a third person which is wrongful toward the other and as such subjects the third person to liability to him;(f) the degree of culpability of a wrongful act of a third person which sets the intervening force in motion.
Section 34. Intervening Acts and Superseding Causes. When a force of nature or an independent act is also a factual cause of physical harm, an actor’s liability is limited to those harms that result from the risks that made the actor’s conduct tortious.
An intervening cause is an event that occurs after a tortfeasor's initial act of negligence and causes injury/harm to a victim
Was it foreseeable?o Liability turns upon whether the intervening act is a normal or
foreseeable consequence of the situation created by the defendant’s negligence
Issue: whether or not they are foreseeable if yes, they will not absolve the actor, if not, they are superseding and stop the chain of reaction
Rule: when acts of 3rd person intervene between D’s conduct and P’s injury, liability turns on whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant’s negligent
Rule: If the negligent and intervening act were independent, there is generally no liability
Derdiarian v. Felix Contracting o Dickens has epileptic seizure which caused him to lose control of his car
and crashed into a worksite There was not an appropriate barrier surrounding the worksite
o Both negligent and but for causes happened in a freakish way It is reasonably foreseeable that a car may veer off the road into a
nearby worksite and hit a worker Watson:
o Tanker full of gasoline spilled into streeto Duerr struck a match and dropped ito Look to intent:
Malicious
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Accidento An act or omission may yet be negligent and of a nature to charge a
defendant with liability, although no injuries would have been sustained but for some intervening cause, if occurrence of the latter might have been anticipated …. A proximate cause is that cause which naturally led to and which might have been expected to product the result….
Superseding Causeso Parties are not liable for the remote results of their negligence, only the
proximate consequenceso An actor is liable for injuries sustained by a person who is trying to rescue
the actor from his own negligence Rescue doctrine is not available to those who come to the scene
for purposes other than rescueo A “superseding cause” is an act of a third person or other force that cuts
off negligent actor’s liability for his own antecedent negligenceo An act or omission may yet be negligent and of a nature to charge a
defendant with liability, although no injuries would have been sustained but for some intervening cause, if the occurrence of the latter might have been anticipated ….. A proximate cause is that cause which naturally led to and which might have been expected to produce the results …
o The mere fact that the concurrent cause or intervening act was unforeseen will not relieve the defendant guilty of the primary negligence from liability, but if the intervening agency is something so unexpected or extraordinary as that he could not or ought not to have anticipated it, he will not be liable, and certainly he is not bound to anticipate the criminal acts of others by which damage is inflicted and hence is not liable therefor
o An actor is liable for injuries sustained be a person who is trying to rescue the actor from his own negligence
The rescue doctrine is not available to those who come to the scene for purposes other than rescue
X. Negligent Infliction of Emotional DistressSection 46. Negligent Conduct Directly Inflicting Emotional Disturbance on Another. An actor whose negligent conduct causes serious emotional disturbance to another is subject to liability to the other if the conduct:(a) Places the other (the plaintiff) in immediate danger of bodily harm and the emotional disturbance results from the danger; or(b) occurs in the course of specified categories of activities, undertakings, or relationships in which negligent conduct is especially likely to cause serious emotional disturbance
A. Direct Negligent Infliction of Emotional Distress (NIED) You either have:
o (1) Direct Plaintiff
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Zone of Danger Under the zone-of-danger, a plaintiff can recover if:
o (1) is in danger of physical impact it is not necessary that she actually suffer an
impact, only that she be aware that the defendant has placed her in peril of physical impact
o (2) reasonably fears for her own safetyo (3) suffers serious emotional distress
Special relationship Between negligent tortfeasor and plaintiff
HYPO: pregnant woman, defendant negligent driving, does not hit her. She is in fear though and suffers miscarriage.
HYPO: pregnant woman, defendant negligent driving, does not hit her. No miscarriage but she suffers insomnia, agoraphobia, headaches, etc
o (2) Bystander Zone of Danger Dillion
(1) Family member? (2) On the scene? (3) Witness it happen?
o Family member has to be close and present to seeing it
THESE ARE FACTORS NOT REQUIREMENTS HYPO: Pregnant woman on corner of street, sees her daughter
cross and get hit, suffers miscarriage. The injury from defendant’s negligence is emotional harm; physical symptoms
may (or may not) come later. Chronology is emotional harm (stress, shock, fear) then physical.
The Zone-of-Danger Rule and ExceptionsB. Proving Emotional Distress
Plaintiff has the burden of proof that the physical harm or illness is the natural result of the fright proximately caused by defendant’s conduct
Physical impact is not required to make out a cause of action for emotional distress, physical consequences are.
C. Bystander NIEDNegligent Conduct directly inflicting emotional distressAn actor whose negligent conduct causes serious emotional disturbance is subject to liability when the conduct:
(a) Places the other in immediate danger of bodily harm and the emotional disturbance results from the danger or
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(b) Occurs in the course of specified categories of activities, undertakings, or relationships in which negligent conduct is especially likely to cause serious emotional disturbance
The scope of who can bring suito Direct Plaintiff: zone of physical danger, special relationshipo Zone: sudden, violent, like experiencing an explosion. o Special relationship: doctor-patient, negligently performing a procedure
that doesn’t cause a physical injury, but maybe you will in the future – worry and concern about potential problems
The Bystander Dilemmao Impact: someone is physically injured of killedo Shock which results in physical injuryo The courts take into account:
Whether the plaintiff was located near the scene of the accident contrasted with one who was a distance away from it
Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence
Whether the plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distance relationship
Was it reasonably foreseeable Thing v. La Chusa:
o Interpretation of a family member: located actually physical present, see it happen, emotional distress serious
Phobia: no physical injury originally but worrying about it o Ex. Left a metal from a scope; fine now but if it moves will be paralyzedo Need a greater than 50% chance it will happen
Can recover for the concern Reasonableness of the concern
Limiting recovery to persons closely related, by blood or marriage since, in common experience, it is more likely that they will suffer a greater degree of emotional distress than a disinterested witness to negligently caused pain and suffering or death
XI. Limited Duty to RescueSection 42. Duty Based on Undertaking. An actor who undertakes to render services to another that the actor knows or should know reduce the risk of physical harm to the other has a duty of reasonable care to the other in conducting the undertaking if:(a) the failure to exercise such case increases the risk of harm beyond that which existed without the undertaking, or
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(b) the person to whom the services are rendered or another relies on the actor’s exercising reasonable care in the undertaking
Section 314A. Special Relations Giving Rise to Duty to Aid or Protect.(1) A common carrier is under a duty to its passengers to take reasonable action:
(a) to protect them against unreasonable risk of physical harm, and(b) to give them first aid after it knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others.
(2) An innkeeper is under a similar duty to his guests(3) A possessor of land who holds it open to the public is under a similar duty to members of the public who enter in response to his invitation(4) One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal opportunities for protection is under a similar duty to the other
When there is no Duty:o When bystander can do so without danger to himself but still no duty to do
sofree will If you are a pure bystander
o An actor owes no duty to rescue when he does not create the risko If you begin the rescue you can retreat for a reasonable causeo Good Samaritan law: provides immunity from any negligence act committed
during rescue Duty to act with due care once he has undertaken rescue operations
o Reliance: person without duty decides to rescue someone but decides to stop Okay as long as there is no detrimental reliance by the person or a 3rd
party (no pre-existing duty) When you have a duty:
o If you put one in harm through your negligenceo If your actions have placed the victim in harms way even if you were not
negligent Baker:
Customer falls on the floor of taco bell Special relationship because he was an invitee and Taco Bell had a
duty to help Duty to warn:
o Based on relationshipo Wrongdoer and relationship with wrongdoer to protect 3rd partyo Evaluate:
Public policy Foreseeability Interests of the relationship
Balance competing interests involvedo J.S. and M.S. v. R.T.H:
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Protection of children exceeds the relationship of marriage
o Tarasoff: Duty for a therapist to warn a 3rd party Person at risk must be an identifiable person
o Foreseeability: defendant owes a duty of care to all persons who are foreseeably endangered by his conduct, with respect to all risks which make the conduct unreasonably dangerous
o Under CL: one person owed no duty to control the conduct of another, not to warn those endangered by such conduct, the courts have carved out an exception to this rule in cases in which the defendant stands in some special relationship to either the person whose conduct needs to be controlled or in a relationship to the foreseeable victim of that conduct
XII. Duties Owed by Owners of Land Trespassers :
o No duty for ordinary negligenceo Duty owed when:
The place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass
The condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children
The children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it
The utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved
The possessor fails to exercise reasonable care to eliminate the danger or otherwise protect the children
o Exceptions: Discovery : duty to warn
Discharged by warning You know who they are
Common trespassers : warn of dangers Put up sign or some warning
Attractive Nuisance : act reasonably under the circumstances Artificial condition
o ex. Swimming pool, trampoline Children: section 339 imposes a duty on possessor of land to:
warn about potential dangers if they know children are likely to trespass
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Eliminate risk So basically w/children trespassers, need reasonable care and elimination
of risk if you know there’s a risk children will be attracted to or wander into your land
Licensee o Typically, a social guest visiting the houseo Duty to warn: for dangers which you are aware of but not obvious to the licensee
Ex. Broken stepo Solicitors- licensee most times
Invitees o Two categories:
Within the business context Ex. People who use public parks
Persons who come on the land as a member of the public for a purpose for which the land is held open to the public
o Full Duty of Reasonable care: Warn Fix
Thus, a possessors may have a duty to inspect her premises for dangers that create an unreasonable risk of harm and then to take reasonable steps to protect the invitee against such dangers
o Should warn against the dangers but must also eliminate the risk of harm
o Status can change, depends on each individual status
XIII. Affirmative DefensesSection 8. Factors for Assigning Shares of Responsibility. Factors for assigning percentages of responsibility to each person whose legal responsibility has been established include(a) the nature of the person’s risk-creating conduct, including any awareness or indifference with respect to the risks created by the conduct and any intent with respect to the harm created by the conduct; and(b) the strength of the casual connection between the person’s risk-creating conduct and the harm.
A. Contributory and Comparative Negligence Contributory:
o Plaintiff’s negligence absolves defendant of all negligence if the plaintiff is involved in the but for causation
o Two modified forms: JURY DOES NOT KNOW WHICH JURISIDICTION IT IS Jury refuse plaintiff’s negligence and allow recovery Defendant had last chance to avoid harm and defendant’s
negligence was more negligent than plaintiff’so Example: Plaintiff is crossing the street against the light, the defendant is
not paying attention and is driving too fast and hits the plaintiff. Because
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the plaintiff was negligent also it absolves all negligence that the defendant had because the plaintiff was his own but for cause
All but 4 states have done away with this harsh ruleo Contributory negligence does not absolutely bar recovery if:
Defendant’s conduct was intentional Defendant’s conduct was “grossly” negligent Defendant had the “last clear chance” with which, through the
exercise of ordinary care, to avoid plaintiff’s injury Plaintiff’s negligence may be classified as “remote”
o When a plaintiff’s negligence contributes or exacerbates the accident, he cannot recover
o Two modified forms: JURY DOES NOT KNOW WHICH JURISIDICTION IT IS Jury refuse plaintiff’s negligence and allow recovery Doctrine of last chance: Even if P was negligent, if D had a chance
to do something to avoid the accident and he did not, D can’t allege contributory negligence
Comparative negligence: pg. 400, 403o Takes over for contributory negligenceo Plaintiff is 30% at fault and the defendant is 70% at fault
Damages 100k, the plaintiff will recover $70,000o Pure damages reduced in proportion of attributed negligenceo Modified: plaintiff’s recover only if their negligence
Doesn’t exceed 50% Less than defendant’s negligence
o (1) Pure comparative fault jurisdiction regardless of how the jury apportions the fault, the plaintiff will
recover whatever percentage of fault was not allotted to hero (2) “Not as a great as” jurisdiction
plaintiff can only recover if their fault is not as great as the defendant’s fault or not equal to
if the jury comes back saying the plaintiff is 50% and so is the defendant, the plaintiff collects nothing
equal to or greater thano (3) “No greater than” jurisdiction
plaintiff can recover as long as the damages is not greater than the defendants
B. Assumption of Risk Voluntary assume known + specific risk If you assume the risk you cannot recover
o Voluntarily Not under duress
Ex. Parent’s running into burning home to save child
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Rescuer – you voluntarily assumed a known and specific risk when you entered into a burning apartment to save someone
o Assume: saw and aware Had actual knowledge and not should have known
o Known and specific Specific reasoning Ex. Beach closed for riptides and you go swimming anyways and
die1. Express Assumption of Risk
A contract is createdo Ex. Waiver and release
Usually is written Can be orally Looked upon as a release Defense: if put in an unfair situation, all defenses of a normal contract
would apply Two factors militate in favor of giving effect to these contracts:
o (1) Because the exculpatory agreement is made in advance of the relationship between the parties, the defendant acts in reliance on the plaintiff’s agreement not to hold her liable
o (2) Agreements made in advance of entering a relationship can specify the scope of the conduct covered by the contractual exculpation
BASICALLY, defendant allows plaintiff to be exposed to defendants conduct ONLY if the plaintiff agrees to not sue
2. Implied Assumption of Risk Implied assumption:
o Primaryo No negligence on part of other partyo A landlord has not duty to take reasonable care to make her
property reasonably safe for social guests. Secondary
o SA - An assumption of risk is an affirmative defense to an established breach of a duty owed by the defendant to the plaintiff
o There is a negligence by the defendant so the assumption of risk is secondary is secondary to the negligence of the defendant
o Implied unreasonable – went into flames to get your favorite hat Actions are unreasonable Most jurisdiction have done away with
court take the unreasonable nature of the plaintiff’s behavior and treat that as part of the allocation that you the jury will do
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o Implied reasonable – negligence by the defendant and implied by the actions of the plaintiff but the actions of the plaintiff is reasonable
Not really recognizedC. Statutes of Limitations and Repose
There are SOLs because as time passes memories fade, witnesses die, and evidence is lost or destroyed
Time limit to file lawsuito Clock starts to run at the time which the injury occurs and there is usually
a window of 2-3 yearso SOL
Negligence: 2-3 Legal Malpractice: 2
o Exceptions: Age of minority: starts when you become age of majority SOL goes into effect when you become aware of fraudulent
concealmento Example: when something is left in your stomach after a medical
procedure the clock does not start ticking till you start feeling pain. Then from the time a reasonable person would go to a doctor to figure out where the pain is where they find the item left in your body
time starts ticking when you discover the item in your body once pain is felt, the time to go to the doctor to check it
out is the amount a time a reasonable person would go check it out
o Must bring the lawsuit within a reasonable period of time after the accident has occurred
o Minors: Will not begin (in most states) till they become of the age of a
majority then they have a time period to bring suit Statutes of Repose:
o In several areas legislatures have been successfully lobbied to enact statues of repose to protect defendants form long-tailed liability, i.e.:
Some states limit liability of architects and engineers to a given number of years after a building has been completed
Some limit manufacturers, etc.o The states say you have X amount of time from time product is
manufactured to bring your lawsuit. So when it happens after the SOL has expired, you’re out of luck.
Presentment: o When you want to file against a municipality you have to present your
claim to the prescribed government entity to decide if they want to settle Presentation window very short
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Look to the separate requirements
XIV. Joint TortfeasorsA. Joint and Several Liability Under Comparative Fault
In concert: two people agreeo Both parties are liableo If you didn’t agree, this would not have occurredo Have to prove both but for and proximate cause
Vicarious liability: o Respondent superior-employee must be negligento Going after employero Acting within scope of employment
Independent – acting independently but together they are the bot for cause of the battery
o You have to prove but for and proximate cause for both in concert and independent
o I will lure you into the woods while the other robs you (each did things differently but will be held liable)
Respondent superior – the employer can be liable for the negligence of the employee so long as the employee is acting within the scope of employment
o 1) are they an employee and if so is the employee was negligento 2)was the “employee” an independent contractor – has entered into
some business relationship with another party but is not deemed to be an employee of that job
Doctors who work at hospitals but are not paid by the hospital Joint and Several Liability – If the plaintiff against the defendants (1+2) they
were negligent and the but for and proximate cause, the plaintiff proves he suffered 100G and the plaintiff can receive it either by fully by D1 or fully by D2 or half and half
Several Liability – D1 can only collect 70% and D2 can only collect 30% B. Satisfaction, Contribution, and Indemnity
§22. IndemnityA) When two or more persons are or may be liable for the same harm and one of them
discharges the liability of another in whole or in part by settlement or discharge of judgment, the person discharging the liability is entitled to recover indemnity in the amount paid to the plaintiff, plus reasonable legal expense if:
c. The indemnitor has agreed by contract to indemnify the indemnitee, or d. The indemnitee
i. Was not liable except vicariously for the tort of the indemnitor orii. Was not liable except as a seller of a product supplied to the indemnitee
by the indemnitor and the indemnitee was not independently culpableB) A person who is otherwise entitled to recover indemnity pursuant to contract may do so
even if the party against who indemnity is sought would not be liable to the plaintiff
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Satisfaction: Once P has recovered 100% of the damages from either source, judgment is satisfied, P can’t get any more money
Contribution/indemnity: P can get judgment from one D and that D may seek contribution from other D’s
o No such things as contribution for intentional tortsC. Settlement and Release
Release: P may enter into contractual agreement with one D to release them from liability in a suit “covenant not to sue” often amount settled for will be subtracted from total judgment at trial against other D
XV. DamagesA. Special and General Damages
To collect damages, there must be (1) personal injury or (2) injury to property Special
o Financial calculation, dollar amount associatedo Reduction and inflationo Reasonableo Present and future damageso Speculative
Lost income Medical costs Services
Generalo Similar to emotional damageso Court can reduce amount given for punitiveso No reduction for prevent values
Pain and suffering Disfigurement Shame Hedonistic- self indulgent
Maximum recovery rule: allows judge the authority to determine whether the verdict of the jury exceeds the maximum amount which the jury could have reasonably found and to reduce the award to the highest amount that the jury could properly have awarded