Intentional Interference with Person or Property

Intentional Interference With Person or Property

Ch 2

5 Intentional Torts: Battery, assault, false imprisonment, trespass to property, and trespass to land. Battery is the actual physical harm; assault is the apprehension of physical harm (you reasonably think you will be hit)

I. Intent: It is not necessary that D desires to physically harm P. D has the necessary intent for battery if it is the case either that: (1) D intended to cause a harmful or offensive bodily contact; or (2) D intended to cause imminent apprehension on Ps part of a harmful or offensive bodily contact. Another persons psyche cannot be proven. Garratt v. Dailey The five year old that pulled the chair. For D. Five year old pulls chair, lady broke her hip. Originally remanded for review. Case looks into a persons psyche. In regards to the intentional tort of battery, is the element of intent satisfied if the defendant knows with a substantial certainty that his act will result in a harmful or offensive contact? Yes. In regards to the intentional tort of battery, the element of intent is satisfied if the defendant knows with a substantial certainty that his act will result in a harmful or offensive contact. It cannot be proven what the defendants intent was, no one knows his psyche without some form of evidence (cant prove purpose). If the plaintiff can prove that the defendant knew with substantial certainty that the plaintiff was going to sit there, he knew that moving the chair could possibly cause her to fall (substantial certainty). Spivey v. Battaglia The harmful hug. For D. Defendant paralyzes the plaintiff with an unsolicited hug. Court held that a reasonable man, under the circumstances, would not expect the outcome as substantially certain. No battery. The court found that negligence is a relative term and its existence is dependent on each cases particular circumstances in which parties are surrounded in. The trial court committed error by granting summary final judgment without submitting the case to a jury with instructions regarding the elements of negligence for this particular case. Ranson v. Kitner The man who killed the dog that looked like a wolf. For P. Ranson took action against Kitner for the killing of his dog. The appellants were hunting for wolves and the appellees dog resembled a wolf. The dog was shot and

killed because it was believed to be a wolf (in good faith). Transfer of intent, liable for dog. From the evidence present no material error occurred to the prejudice of the appellants. Appellants are clearly liable for the damages caused by their mistake, notwithstanding they were acting in good faith. The court affirmed the judgment. McGuire v. Almy Mental patient hurts nurse. For P. A nurse, was hired to take care of the mentally insane defendant. D was locked in her room and she had a violent attack. The plaintiff looked into the defendants room and after seeing the destruction, feared for the defendants well being and thought it best to take any broken things away. The defendant had a leg of a low-boy in her hand when the plaintiff walked into the room. The plaintiff attempted to take hold of the defendants hand where she was struck in the head by the defendant. Mental condition does not excuse tort. In the broadest terms and insane person is liable for his/her torts. An insane person must pay for his support, if financially able, is also responsible for the damage he/she does. The insane person, in order to be liable, must have been capable of entertaining the same intent and must have entertained it in fact, of a normal person. Talmage v. Smith The boys on the roof. For P. Defendant ordered two boys to get off of his roof. As boys were getting down, D threw a stick at the other boy on the shed, missed the boy and hit P in the eye, causing total loss of sight in that eye. Court found that the charge was a fair statement of the law of the case. The defendant threw the stick with the intention to hit someone, and even though it did not hit the intended boy, did not relieve him of responsibility of the injury. The court found that even though the defendant had intentions to hit the other boy and not the plaintiff, he had intent to injure someone. This intent leaves him liable for the injuries inflicted on the plaintiff.

II. Battery: the intentional infliction of harmful or offensive bodily contact. (Ex: A intentionally punches B in the nos. A has committed battery). Cole v. Turner That the least touching of another in anger is a battery. If two or more meet in a narrow passage, and without any violence or design of harm, the one touches the other gently, it will be no battery.

If any of them use violence against the other, to force his way in a rude inordinate manner, it is battery; or any struggle about the passage, to that degree as may do hurt, is a battery 18(2): An act which is not done with the intention stated in Subsection (1,a) does not make the actor liable to the other for a mere offensive contact with the others person although the act involves an unreasonable risk of inflicting it and, therefore, would be negligent or reckless if the risk threatened bodily harm. Wallace v. Rosen Students mom pushed downstairs by teacher. For D. The parent of a student was dropping off homework at her daughters school when the fire alarm went off. D tapped P on the shoulder to tell her that she needed to get moving because of the fire drill. P testifies that D pushed her and that she then slipped and fell down the stairs. The defendant had a responsibility to her students to get them out of the building in an orderly fashion. The appellate court held that a tap on the shoulder to gain the plaintiffs attention over the noise cannot be considered rude, insolent, or angry. The crowded world theory, a certain amount of personal contact is inevitable an must be accepted. Fisher v. Carrousel Motor Hotel, Inc. Negro could not be served in the club. For P. The plaintiff was attending a meeting that included a luncheon buffet at the defendants hotel. While the plaintiff was standing in line with his colleagues to be served, the defendants employee snatched the plate from the plaintiffs hand and stated Negro could not be served in the club. The Supreme court held pursuant to the Restatement (Second) of Torts 18, that the plaintiff was entitled to actual damages due to mental suffering due to the willful battery, even in the absence of physical injury. The court also held the defendant liable for the tort of its employee. The Supreme Court found that even though the plate was being snatched from the plaintiffs hand, it could be considered a universal part of him. The forceful manner in which the plaintiffs plate was taken from him was sufficient to constitute a battery.

III. Assault: An intentional causing of apprehension of harmful or offensive contact. There are two different intents which will suffice, intent to create apprehension, or intent to make contact (intent to scare or intent to touch). Threat of assault must be imminent. I de S et ux. V. W de S The drunk man breaking down doors for wine. For P.

 D beat on the door of P1s tavern with a hatchet after it had closed in order to get P1
to open the door so that he could buy wine. P1s wife P2 stuck her head out of the window and shouted at D to stop. D hit the door with the hatchet but did not injure P2 and the plaintiffs brought suit. D claimed as his defense that there were no damages because he did not actually harm P2. The court dismissed the action because P2 did not suffer physical harm and the plaintiffs appealed. Is a party liable for placing another in fear of harm if no actual physical harm is caused? Yes. D frightened P2 when he swung the hatchet and the plaintiffs were entitled to recover damages even though there was no actual physical harm. Western Union Telegraph Co. v. Hill Creeper wants to pet you. For D. The plaintiffs wife went into the defendants place of work and inquired about the repair of a clock. The plaintiffs wife asked when it could be tended to and the defendant stated that if she come back behind the counter and let him love and pet her, that he would fix the clock. Whether such an assault will justify an action for damages. The Court of Appeals of Alabama reversed the judgment on the ground that the defendant had not acted within the scope of his employment.

IV. False Imprisonment: the intentional infliction of a confinement where someone is within certain limits , not that she is prevented from entering certain places. P must show that D either intended to confine him, or at least that D knew with substantial certainty that P would be confined by Ds actions. You have to be aware of the imprisonment for it to be committed. Big Town Nursing Home, Inc. v. Newman The man imprisoned in the nursing home. For P. D was admitted in Ps nursing home facility, signing papers that stated he would not be forced to stay at Ds facilities if he did not wish to. P decided he wanted to leave use the telephone, have visitors unless they were known, and that his belongings were locked up. The plaintiff then walked out of the home where he was caught and brought to Wing 3 and locked up. Wing 3 contained senile patients, drug addicts, alcoholics, mentally disturbed, uncontrollable, and the like in this wing. The plaintiff tried to escape 5 to 6 more times but was caught and brought back each time detained against his will. The plaintiff was finally able to escape on November 11, 1968. He went to Texas and stayed with a friend. No court proceeding were ever brought to confine the plaintiff there after. The court held that the defendant acted in utter disregard of the plaintiffs legal rights, knowing there was no court order for

commitment, and the admission agreement provided he was not to be kept against his will. The court also held that the amount of damages was excessive. False imprisonment is the direct restraint of one person of the physical liberty of another without adequate legal justification. Parvi v. City of Kingston The drunk man that got hit while drying out. For D. The police were responding to a complaint in which the plaintiff was involved in. The inebriated plaintiff then told police that he had no where to go, so instead of arresting him, took him outside the city to dry out. P, while drying out, wandered off and was struck by a car and severely injured. Court held that the plaintiff failed to make a prima facie case that he was conscious of his purported confinement and that he failed to consent to it. The court found that the plaintiffs entire memory of the incident had disappeared by admitting that he no longer had any recollection of what happened on the day of the accident. Because of this, his statement that he was ordered into the car against his will is insufficient. Also, because it was not clear as to why he had no memory of the incident, it couldnt be said as to when the memory loss occurred. If the plaintiff could show that his recollection was damaged due to the accident or because of a lapse of time, he may have been able to recover. The plaintiff needs to have consciousness of imprisonment, or harm from the imprisonment, for a tort. Hardy v. LaBelles Distributing Co. The innocent/angry thief. For D. The plaintiff was a temporary employee. Another employee of LaBelles thought she saw the plaintiff steal a watch and reported it to the showroom manager. The next morning, the plaintiff was approached by the assistant manager of LaBelles jewelry department and said that all the new employees were given a tour of the store. He then showed her into the showroom managers office and left, closing the door behind him. With others present, the plaintiff had been told that she was accused of stealing a watch. The plaintiff willingly took a lie detector test to prove her innocence. The meeting lasted from 20-45 minutes. The lie detector test showed she did not steal the watch. She was apologized to and then left the store. She later sued for false imprisonment. The court held that there was ample evidence to show that the plaintiff was not unlawfully held against her will. The defendant admitted that she wanted to stay in the office to clarify the situation, that she did not ask to leave, nor was she told that she could not leave. There was also

no threat of force to make her stay in the office at LaBelles. Therefore the court found that she was not falsely imprisoned. Enright v. Grooves The loose dog, no license, now go to jail. For P. The defendant was on duty as an officer of the City of Fort Collins on August 25, 1974. He observed a dog running loose which was a violation of the citys dog leash ordinance. The dog ran to what was later identified as the residence of the plaintiff. The plaintiff was outside the residence in her parked car and the defendant approached her there. The defendant demanded the plaintiffs license without an explanation. The plaintiff did not give her drivers license, but gave her name and address willingly. The defendant asked for her license again and the plaintiff refused. The defendant then stated that she would produce her license or go to jail. The plaintiff responded by asking Isnt this ridiculous?. The defendant then grabbed one of the plaintiffs arms and placed her under arrest. The court held that the arrest was not subject to the violation of the dog leash ordinance, but of the plaintiff not producing her drivers license to the defendant. The court concluded that the defendants demand for the plaintiffs license was not a lawful order and that her refusal to comply was not an offense subject to arrest. There are no statutes or case law that require a citizen to show a drivers license upon demand, unless the citizen is a driver of an automobile and such demand is made in that connection. Whittaker v. Stanford The lady trying to leave the cult. For P. The plaintiff was waiting with her four children for a steamboat to abandon a religious sect. The defendant, who was a leader of this sect, offered to take her back on his yacht. The plaintiff told the defendant that she was afraid he would not release her. The defendant assured her that under no circumstances would she be detained on board. Upon arrival to the port in America, the defendant refused to furnish her with a boat so the plaintiff and her children could leave the yacht. The plaintiff remained on board for a month while and was not allowed to leave unaccompanied. She finally obtained her release along with her children with the assistance of a sheriff and a writ of habeas corpus. The court held that by the defendant refusing the boat, held the plaintiff against her will with physical restraint. The jury was warranted in finding the defendant guilty based on the evidence. The court found that there isnt the slightest doubt that the defendant held the power to control the boats on the yacht and stop the plaintiff from attaining one to leave. By

refusing the boat, the defendant physically constrained the plaintiff and committed false imprisonment in doing so. V. Intentional Infliction of Emotional Distress: the intentional or reckless infliction, by extreme and outrageous conduct, of severe emotional or mental distress, even in the absence of physical harm. To claim IIED conduct must intentional or reckless; must be extreme and outrageous; there must be a casual connection between the wrongful conduct and the emotional distress; and the emotional distress must be severe. All four must be met for the case to be upheld. State Rubbish Collectors Assn v. Siliznoff The gangster trash collectors. For P. Siliznoff was intimidated into signing notes by the threat of future physical force. The plaintiffs sued Siliznoff for collection of the debts, but Siliznoff said that he was not liable for them because he signed under duress. D argued that assault involves only threats of immediate force rather than threats of future force. The old rules state that the law will not protect individuals from invasions of their emotional and mental well-being. However, the court cites a change in the law reflected in the Restatement of Torts that says there may be an action for infliction of severe emotional distress. Harris v. Jones Making fun of the kid that stutters. For D. Harris was teased by Jones for his stuttering. Harris claimed that the teasing worsened the condition and caused him emotional distress. The court argues that in deciding whether the distress was severe, the situation cant be studied in a vacuum. Because the plaintiff had problems that preceded his employment and the place of employment was kind of a rough place, there hadnt been enough evidence introduced that the distress could be considered severe. The harm wasnt severe enough and there was no casual connection. Taylor v. Vallelunga Saw her dad get jumped. For D. Plaintiff Taylor witnessed Defendants intentionally attacking and beating her father. While Gerlach sued for his physical damages, Taylor sued to recover for the emotional distress she experienced as a result of witnessing the event. Taylor failed to allege that the Defendants knew she was present for the event or that they intended the beating to cause her to suffer distress. For one to recover for emotional distress when she has experienced no physical injury, she must establish that the Defendant intentionally caused her to suffer from

severe emotional distress. The dismissal was affirmed. When a Plaintiff seeks to recover for emotional distress but does not allege any physical damage, she is required to prove that the emotional distress was intentionally inflicted upon her by the Defendant. VI. Trespass to Land: A trespass to land can occur when the defendant enters the plaintiffs land, or causes another person or an object to enter the plaintiffs land. It can occur if the defendant remains on the plaintiffs land without the right to being there, or if the defendant fails to remove an object from the plaintiffs land which she is under a duty to remove. Dougherty v. Stepp Surveying a land becomes trespass. For P. Stepp (D) entered Doughertys (P) unenclosed property without Doughertys consent. Stepp entered the property with a team to survey the land but there was no physical damage to the property. Dougherty sued for trespass damages. At trial, the court held that there could not be a trespass without some damage to the land. The jury found in favor of D and P appealed on the grounds that the jury instructions were improper. Any unprivileged entry onto the land of another is a trespass even if there is no physical damage. The court held that the law implies damages for every unprivileged and unlawful entry onto the land of another even if there is nothing more than the treading down the grass, herbage, or shrubbery. All that is required is the intent to enter the land without permission. Herrin v. Sutherland The shotgun shot over some elses land. For P. The defendant was standing on someone elses land and shooting a shotgun at ducks over the plaintiffs land. The court figures that since the defendant disturbed the plaintiffs quiet, undisturbed, peaceful enjoyment of the land, it was technically trespass. The court also says that there is a clear danger of having a shotgun fired over your land, and that even if there are no actual damages, the plaintiff should be protected from such conduct. The air space near the ground over your land is as much your property as the land itself. Cujus est solum, eujus est usque ad coelum et adinferos. Rogers v. Board of Road Comrs for Kent County The post that killed the man. For P. The defendant failed to remove a post as agreed, and the plaintiff ran into it on his mower and died. If you leave an object lying around on someone elses property and they get hurt, can you be held liable for trespass? The Restatement says that trespass

by continued presence may lie if consent of some objects presence has been terminated. The court uses the Restatements rule to find that the facts fit the tort of trespass, for which governmental immunity does not apply.

VII. Trespass to Chattels: any intentional interference with a persons use of possession of the chattel is a trespass to chattel. This if the defendant takes the chattel out of the plaintiffs possession, or harms the chattel, a trespass to chattel has occurred. Glidden v. Szybiak The dog that bit the girl. For P. A little girl, Elaine Glidden, played with a dog and pulled its ears. The dog snapped at her nose and she was injured. She sued for personal injury and won. The defendants argued that the girl was committing trespass to chattels at the time of the injury, and thus Elaine was barred from recovering damages for her injury. Someone cannot be held liable for trespass to chattels unless some harm comes to the chattel. The court finds no evidence in the record to show that Elaine injured the dog. Therefore, the court concludes Elaine did not commit a tort at the time of her injury. CompuServe Inc. v. Cyber Promotions, Inc. The you cant send spam through my servers case. For P. Cyber Promotions sent spam to CompuServe customers. CompuServe sued under the theory of trespass to chattels, saying that Cyber Promotions is intermeddling with CompuServes servers. Trespass to chattels occurs when the defendant intrudes upon the plaintiffs property such that damage results. The defendants say that only physical dispossession or interference is required for trespass to chattels to lie. The court argues that physical dispossession is only one of several ways a chattel can be interfered with. The court points out that the defendants interference with CompuServes computers caused actual harm to the company and its customers.

VIII. Conversion: when a defendant so substantially interferes with the plaintiffs possession or ownership of property that it is fair to require the defendant to pay the propertys full value. (A) Nature of the Tort: in determining the seriousness of the inteference an the justice of requiring the actor to pay the full value, the following factors are important: (a) the extent and duration of the actors exercise of dominion or control; (b) the actors intent to assert a right in fact inconsistent with the others right of control; (c) the actors good faith; (d) the extent and duration of resulting interference with the others right of control; (e) the harm done to the chattel; (f) the inconvenience and expense caused to the other.

o Pearson v. Dodd o The Senator who got photo-copied. For D. o Former staffers of Senator Dodd secretly took files from his office, photocopied them, and then replaced them. Dodd sues the newspaper columnists who published articles based on those files for conversion and invasion of privacy. The District Court granted partial summary judgment to Dodd on the conversion theory. The case went to the DC Circuit on interlocutory appeal. o In order for conversion to occur, some property must be interfered with in a complete or very substantial way. o The court says that the documents themselves couldnt have been converted, because they were returned in useable condition. The court then considers whether the documents could be considered intellectual property that could be compromised by being merely seen and then returned. The court decides that the records that were copied, consisting of letters from constituents and office documents, are not intellectual property. (B) Effect of Good Faith: An individual may be subject to liability for conversion although he was not subjectively at fault, which can occur in two ways: (1) when the defendant intends to affect the chattel in a manner inconsistent with the plaintiffs right of control, the fact that he acted in good faith and under a mistake does not prevent liability for conversion. (2) the other major area in which an innocent conversion may take place concerns good faith purchasers, those who buy the goods not knowing they were converted. (C) Necessity of Demand; Return of Chattel: (1) Demand: the possessor is liable only if refusing to return the goods on demand; (2) Return: when a converter offers to return the converted goods and the owner accepts, the return does not bar the action or conversion, but it must be taken into account to reduce the damages recovered. (D) Damages: The measure of damages for conversion is the value of the property converted. Usually, this is the market value. (E) What May be Converted: Trover is limited to the conversion of things that were capable of being lost and found. (F) Who May Maintain the Action: Trover was founded upon the plaintiffs possession. Anyone in possession of a chattel a the time of a conversion can maintain an action for it.

Privileges
Privileges I. Consent: If a plaintiff has consented to an intentional interference with his person or property, the defendant will not be liable for that interference.

Ch 3

OBrien v. Cunard S.S. Co. Dont vaccinate my arm, but here it is. For D. Plaintiff, an immigrant, was given a necessary vaccination while on the surgeons ship. She claimed to have already been vaccinated, but did not say she did not want to be vaccinated again or resist the vaccination. Stating an action is not desired, without any other behavior or objection is not enough to charge another with negligence. No reasonable, visible objections were made by passenger. Hackbart v. Cincinnati Bengals, Inc. The football player that gets hit in the head. For P. One player sued another for intentionally striking a blow during a football game. The defendant admits to the blow being intentional due to this anger. TC held that, as a matter of law, football is a violent sport by nature and that available sanctions for these actions are imposed by penalties. The issue in this case is whether there was consent to battery. This court held that the P was entitled to have his case tried. Consent goes as far as the rules of the case, not into that which the game does not allow. Mohr v. Williams. Yes to the right ear, no to the left. For P. A patient arranged for the D to perform surgery on her right ear. During the operation D decided that Ps left ear, rather than her right, required surgery. He operated on the left ear without her consent. The issue was whether a doctor has general consent to perform surgeries not already approved. No. Specific consent for a particular operation does not give D consent to any operation, even if for Ps well-being. De May v. Roberts. The assistant who wasnt a doctor. For P. Woman was giving birth and a doctor came to help. He brought an assistant, who was not a doctor, with him. P believed assistant was a doctor and allowed him to touch her. When she found out he wasnt, she sued for battery. Consent is not valid if P is mislead about Ds identity, and consent is obtained through deceit.

II. Self Defense: The defense of your own person. There are two issue: does the privilege exist, and what degree of force. If you reasonably believe you are being threatened with bodily damage or death, the response has to be sufficient to eliminate the threat.

III. Defense of Others: Originally, you have a right to use reasonable force to defend a member of his own family. Today, you are allowed to defend a complete stranger The scope of your privilege would normally be the scope of privilege of another person.

IV: Defense of Property: there is a privilege to defend property (both land and chattels) on essentially the same basis as the right to defend oneself. The context of these will usual be in battery or assault. If someone grabs your purse, and you immediately yank it back, you are covered by the recovery of property. One time has lapsed, you need to reach out to legal authorities to return the property back to you. The test for if violence is allowed is whether the violence was reasonable and necessary under the circumstances. This also leads to the issue of false imprisonment. Katko v. Briney The looter and the spring gun. For D. P broke into an unoccupied house owner by D to loot and found a spring gun set up inside. The gun struck P in the right let, blowing much of it away. D argued that he was defending his property. This case brings up the question of whether you should be able to use force, that could cause great bodily injury, simply to defend property. An owner may not protect unoccupied personal property with a spring gun. The force must match the action. Death does not match looting.

V. Recovery of Property: property owners may sometimes have the right to use force to regain possession of chattels or land taken by someone else. The privilege exists only in fresh pursuit. Hodgeden v. Hubbard The stove bought through misrepresentation. For D. A buyer sued a seller for assault and battery after D tried to recover a stove that P has purchased by misrepresenting himself. D immediately went after P, and in response to Ps violence, D used force against him. The main issue was whether the original owner of property was still considered the owner after property had fraudulently been taken from him. An owner of property may reposes his property as long as the peace is not disturbed and there is no unnecessary violence. Bonkowski v. Arlans Department Store

The shopper who didnt commit larceny. For D. A possible larceny is reported to an officer, who then proceeds to stop the suspect. After the suspect is asked to empty her purse and shoe receipts for her purchases, the offer lets her go. P then sues for psychosomatic symptoms she suffered as a result of Ds acts. A shop owner must have the right to detain for reasonable investigation a person whom he reasonably believes to have taken chattel unlawfully.

VI. Necessity: there are some situations in which the defendant is privilege because of unusual exigencies, to harm the plaintiff, even though the plaintiff himself is completely blameless. Surocco v. Geary The mayor who burned down the house. For D. A homeowner sued a mayor for goods they were not allowed to recover due to D burning down their house to prevent a fire from spreading. Under these types of circumstances, the common law adapts to natural law and accepts the justification of an act that would normally seem tortious. The value of human life secede both individual rights and rights of property. What damages did the plaintiff actually suffer that would not have been suffered by the plaintiff anyway? Vincent v. Lake Erie Transp. Co. The ship that ruined the dock. For P. The owner of a dock sued a ship owner for the damages incurred to his dock due Ds boat being thrown against the dock. D argued that the storm was an act of god, therefore the damage was not his responsibility. If damage is caused by D, even if D acted prudently and justifiably by damaging the property of another to protect his more expensive property, he still owes damages to the one he caused harm (the starving man may steal to not die from hunger, but must pay back when he is able).

VII. Authority of Law: any acts done under authority of law are, in general, privileged. (the police officer who executes a valid arrest warrant, and uses proper procedure.) VIII. Discipline: a person who by virtue of her job or status is charged with maintaining discipline may sometimes be privileged to use force and restraint to ensure that discipline. This is most frequently the case for parents, teachers and military officials. IX. Justification: even if the defendants conduct does not fit within one of the conventional defenses discussed above, he may be entitled to the general defense of justification, a catch-all used where there are good reasons for exculpating the defendant for what would otherwise be an intentional tort. Sindle v. New York City Transit Authority

The bus driver with the bad kids. For D. A student sued a bus driver for false imprisonment. The student was held captive in a school bus after the bus driver saw students vandalizing the bus and decided to take them to the police station. TC denied Ds request to amend their answer to plead the defense of justification. One is justified in restraining or detaining another in a manner reasonable under the circumstances to prevent injury. Also, A parent, guardian, or teacher entrusted with care of a child is justified in using that physical force reasonably necessary for discipline or the childs own welfare. Therefore, justification should not have been excluded in evaluating this claim of false imprisonment.

Negligence

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Negligence: I. History: whereas the intentional tortfeasor generally desires to create a certain result (harmful conduct), or at least knows such a result will occur, the negligent tortfeasor has no such desire and may in fact desperately wish to avoid the harmful result. The negligent tortfeasors mental state is relevantthe essence of his tort is that his conduct imposed an unreasonable risk. II. Elements of Cause of Action: (1) a duty to use reasonable care, (2) a failure to conform to the required standard, which is commonly called breach of duty, (3) a reasonable close causal connection between the conduct and the resulting injury, which is common called causation, and (4) actually loss or damage resulting to the interest of another. III. A Negligence Formula: the five components for a prima facie case for negligence are: duty, failure to conform to legal duty (however there are cases were defendant owed no duty at all), causation in fact (but for), proximate cause (casual link), and actual damage. Liability exists if: B<LxP (B=burden on defendant, L=gravity of potential injury, P=probablility harm will occur) Lubitz v. Wells The boy and the gold club. For D. Defendant leaves a gold club lying in the backyard of his house. His 11-year-old son, swings the club in order to hit a stone, and in doing so strikes plaintiff in the jaw and chin. Plaintiffs mother sues both defendant and his son on a negligence theory. Courts held for defendant, the father, stating that a golf club is not so obviously and intrinsically dangerous that by leaving it on the ground defendant committed negligence. But, son was negligent in the way he swung the club. In some situations however, it may be negligence not to anticipate the negligence of others (i.e., if father knew of sons history of injuring others) Blythe v. Birmingham Waterworks Co. The water company that installed the pipes for the cold. For D. Defendant, a water company, installs water mains in the street, leading to fire hydrants. 25 years after defendant does so, a hydrant in front of plaintiffs house springs a leak caused by the expansion of freezing water, during a winter of unprecedented severity. As a result, Ps house is flooded. Defendants conduct was not negligent because the risk of such a heavy frost was so remote as not to be the kind of risk an ordinary prudent person would guard against in doing the work. Pipher v. Parsell The 16-year-olds playing while driving. For P.

D is driving a pickup truck, with P seated in the middle of the front seat and X in the passenger seat. All are 16. As a prank, X reaches over to yank the steering wheel. The truck veers,, but regains course. D, instead of warning X not to pull this prank again, laughs the incident off. 30 seconds later, X yanks the wheel again, this time causing a collision that injures P. A reasonable jury could find that it as negligent for D not to either warn X after the first episode or otherwise try to avoid a recurrence. Chicago, B. & Q.R. Co. v. Krayenbuhl The turn-table that took the boys foot. For P. D railroad maintains a railway turntable near a publicly traveled path. P, a child, discover that the turntable is unlocked, climbs on it, and while playing on it with a group of children gets his foot caught between the rails and severed at the ankle joint. It was negligent of D not to keep the turntable locked and guarded. This business of railroading is facilitated by the use of turntables, so the public food demands that their use not be entirely outlawed, since their utility is out of proportion to the occasional injuries which result. Nut the burden of keeping the turntable locked is so small that the danger of not doing so outweighs this burden. Davinson v. Snohomish County The badly maintained roads. For D. P suffered from damages after the car they were driving in went off the road as the made a turn. P argued that the road was no sufficiently maintained so as to prevent the accident or at least diminish the damages. D argued that Ps were guilty of contributory negligent in operation the vehicle. Municipal liabilities are not required to protect long stretches of roadways due to the costs and hardship it would impose on the municipalities. United States v. Carroll Towing Co. The mooring lines that were both parties faults. For D. Ps barge, docked at a pier, broke away from its moorings due to Ds negligence in shifting the lines that moored it. D, however, agued that P was also negligent in not having an employee on board the barge, and that, according to the rules of admiralty, the damage should be divided between D and P according to their respective degrees of negligence. It is burdensome, to a degree, to have an employee on board at all times. However, there was wartime activity going on in the harbor, and ships were coming in and out all the time. Therefore, the risk that the mooring lines would come undo, and the danger to the barge and to other ships if they did, was sufficiently great that P should

have borne the burden of supplying a watchman (unless he had some excuse for his absence) during working hours. Second Restatement of Torts 291: 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. 292: factors considered in determining utility of actors conduct: social value, extent this interest will be advanced, extent of the chance interest can be adequately advanced or protected by less dangerous course of action. 293: factors considered in determining magnitude of risk to determining whether act was negligent: social values imperiled, extent of a chance that the actors conduct will caused an invasion of any interest of the other member, the extent of harm likely to be caused to the interest implied, and the number of persons whose interest are likely to be invaded.

IV. The Standard of Care: there is a different standard of care depending on what a reasonable person in the position of the defendant would have done. A. The Reasonable Prudent Person: an individual is held to the same standard of care of a reasonable person in their situation. o Vaughan v. Menlove o The man that refused to move his hay rick. For P. o De builds a hay rick near the edge of his property. P is afraid that the stack will ignite, burning his nearby cottages. He repeatedly warns D, but D says he will chance it. The hay spontaneously catches fire, and the resulting conflagration destroys Ps cottages. o D is not entitled to a jury instruction that he is not negligent If he acted in good faith and according to his best judgment, and that he should not be penalized for not being of the highest intelligence. Such a standard would be as variable as the length of the foot of each individual, and would be impossible to administer. Instead, an objective standard, the prudence of an ordinary person, must be applied. o Delair v. McAdoo o The worn-out tires. For P. o As Ds car is passing Ps car, D has a blowout, causing a collision. There is evidence at trial that Ds tires were badly worn.

o D was under a duty to know of the condition of the tires (whether he in fact knew or not), and was also under a duty to know that the worn tires are dangerous. o Trimarco v. Klein o The glass shower door, that shouldnt have been glass. For P. o P, a tenant in an apartment owned by D, is badly cut when the glass on the apartments shower door breaks. At trial, P shows that it has been the custom, for nearly 25 years, to use plastic or safety glass rather than ordinary glass in shower doors. o The TC properly admitted this showing of custom. proof of a common practice aids in formulating the general expectation of society as to how individuals will act in the course of their undertakings A showing that certain conduct is customary in a particular trade demonstrates that it is practical and can be readily carried out. o Cordas v. Peerless Transportation Co. o A cab driver can protect his life more than your car door. For D. o Cab driver, who drives a cab for D cab company, is suddenly accosted one day b a thug, who jumps into the can, puts a gun to the cab drivers back and tells him to step on it. Meanwhile, a number of pedestrians start shouting. Stop, thief! The thug tells the driver that the latter will suffer the loss of his brains if he does not obey the thugs orders. The driver then jams on the brakes, and, leaving the motor running, jumps out. The cab keeps running and injures P. o Cab drive did not behave negligently, and D is therefore not liable. If under normal circumstances an act is done which might be considered negligent, it does not follow as a corollary that a similar act is negligent if performed by a person acting under an emergency, not of his own making, in which he suddenly is faced with a patent danger with a moment left tot adopt a means of extrication. o Roberts v. State of Louisiana o The guy who wanted to take the blind mans job. For D. o The Plaintiff, an elderly gentleman, sued the Defendant, the State of Louisiana (Defendant), when he fell and broke his hip after being bumped into by the blind operator of the concession stand at the United States Post Office Building. The concession operator failed to use his cane while walking from

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his stand to the bathroom when the accident occurred. At trial, the Plaintiffs suit was dismissed. Because the blind operator, Burson, had worked at the vending stand for several years and because he testified that he does not use a cane for short trips within familiar buildings, Burson was not acting negligently when he bumped into the Plaintiff. Robinson v. Lindsay The kid that drove the snow mobile. For D. P, age 11, was riding in an inner tube attached by a rope to a snowmobile driven by D1, age 13. The snowmobile was owned by D2. Ps thumb became caught in the rope and was severed. Reattachment surgery was only partially successful and P sued D1 and D2 for personal injuries. The adult standard of care should be triggered whenever the activity is significantly hazardous, even if it is one which is frequently engaged in by children. Snowmobiling is an inherently dangerous activity for which the adult standard should apply. Breunig v. American Family Ins. Co. If batman can fly, so can I. For P. D, driving her car, suddenly becomes convinced that God is taking hold of the

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steering wheel. As the car nears a truck, D steps on the gas in order to become airborne because she knew she could fly because Batman does it. She collides with the truck, driven by P, who sues Ds insurance company. The verdict is for P, and D appeals. o The traditional rule that insanity is no defense to negligence is too broad. This rule is motivated by several policy considerations: (1) Where loss must be borne by one of two innocent persons, the one who caused the loss should bear it; (2) Persons interested in the insane defendants estate (if she has one) should be induced to restrain and control her; and (3) An insanity defense may lead to false claims of insanity to avoid liability. However, where the insanity strikes suddenly and without forewarning, so that the defendant has no chance of avoiding the damage, the rule that insanity is no defense is unjust. o In the present case there was some evidence that D had similar delusions previously and should have been forewarned. B. The Professional: where the defendant holds herself out as a specialist in a certain portion of her profession, she will be held to the minimum standards of that specialty.

A defendant is charged with making reasonable use of whatever specialized type of knowledge or skill she possesses. o Heath v. Swift Wings, Inc. o D, a professional pilot, is oliting a small plane when it crashes shortly after taking off, killing P. o The trial judge was wrong to instruct the jury that negligence should be measured by reference to the care and skill of an ordinary prudent pilot having the same training and experience as D. Instead, an objective standard, the minimum standard generally applicable to all pilots, should have been applied. o Hodges v. Carter o The incorrectly served suit. For D. o The Ds, lawyers, handle a suit for P against an out-of-state insurance company. They serve the company by serving the State Insurance Commissioner. The trial judge holds that the service is valid. At that point, the Ds elect to stand by this method of service, and not to serve the defendant again by alternate means. The defendant appeals, and it is held that the service was invalid. Under local procedural rules, P is thenceforth barred from bringing a new suit against d, since the statute of limitations has run. R then sues the Ds for malpractice. o It was widely assumed by lawyers throughout the state tat service on the Insurance Commissioner would suffice; therefore, the Ds were not negligent in failing to use an alternate form of service, even though this later turned out to have been a strategic error. A lawyers Is not liable for a mere error of judgment, or for a mistake in a point of law which has not been settled by the court of last resort and on which reasonable doubt may be entertained by well-informed lawyers. o Boyce v. Brown o The surgeon who forgot to x-ray the ankle. For D. o A surgeon sets a fracture of Ps ankle by attaching the bone fragments with a metal screw. Seven years later, P returns, complaining of pain in the ankle. D inspects the ankle and bandages it, but does not make an x-ray. Two years later, P again returns to D complaining of pain, but D does nothing of consequence. Shortly thereafter, X, another physician, performs the surgery to remove the screw, and D recovers. At the trial of Ps suit against D, Ps expert medical witness testifies that he would have taken an x-ray when P returned to

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him after seven years, but the expert does not state that Ds failure to do so was necessarily a failure to give proper medical care. P failed to produce the requisite expert evidence on negligence. It is not enough that Ps expert witness said he would have taken the x-raywhat was required was an allegation that not taking it was improper medical care. Morrison v. MacNamara The guy that fell during the urinary infection test. For P. P goes to D to be tested for a urinary infection. The test is given while P is standing. P has an adverse reaction to the test, and faints, striking his head. At trial, P offers expert testimony from a witness from Michigan who testifies

that the national standard of care is to give the test with the patient sitting down. The trial judge refuses to allow this testimony, on the grounds that expert witnesses in medical malpractice cases must come form the same community as the defendant. o At least as to the board-certified physicians, hospitals, etc, the standard of care is to be measured by the national standard. The disparities between urban and rural medical care have largely disappeared in modern timed, and the doctrine is bad because it immunizes doctors from communities where medical practice is generally below that in other communities. o Scott v. Bradford o The hysterectomy that wouldnt have happened. For o The Defendant performed a hysterectomy on the Plaintiff. Before the surgery, the Plaintiff signed a routine consent form. After the hysterectomy, the Plaintiff experienced incontinence as a result a complication of the hysterectomy. The problem was corrected by three subsequent surgeries performed by a different doctor. The Plaintiff alleges that the Defendant failed to inform her of the risks involved or the alternatives to the hysterectomy. The Plaintiff testified that if she had known of the risk of incontinence, she would not have elected the surgery. o To sustain a cause of action in a theory of informed consent, a patient must show that: the physician failed to inform the patient of a material risk, the patient, if informed, would not have elected the treatment, the risks that were not disclosed resulted in injury to the patient. o What counts is what decision the patient himself would have made (whether a reasonable decision or not), not what some hypothetical reasonable patient would have done had full disclosure been made.

o Moore v. The Regents of the University of California o The spleen used without consent. For P. o D, a physician, removes Ps spleen. P consents to the operation, having been told by D that the operation will be beneficial for Ps medical condition (which is true). D then uses cells from Ps removed spleen to establish a cell line which D, and the university for negligence (failure o obtain informed consent), among other claims. o If at the moment of the operation D intended to sue the cells for research, and failed to disclose this fact to P, P has a claim against D for failure to obtain informed consent. A physician who adds his own research interest [to the risk-reward calculation] maybe be tempted to order a scientifically useful procedure or test that offers marginal, or no, benefits to the patient. Therefore, the existence of such an interest is a fact that a reasonable patient would want to know. C. Aggravated Negligence: different degrees of negligence and guilt. Degrees of Care: the care required by the standard of the reasonable person will vary according to the risk. Degrees of Negligence: breaks down negligence to degrees of negligence, broken down to different kinds of conduct with different legal consequences. A difference was made between slight negligence, ordinary negligence, and gross negligence. Willful, Wanton, and Reckless Conduct: another distinction is made by some courts based on defendants state of mind. The effect is to establish an intermediate class of conduct, between negligence and intentional torts. Automobile Guest Statutes: the major context in which a standard of gross negligence or recklessness is applied is that in which a nonpaying passenger in an automobile is injured and sues the driver-owner of the car. Automobile guest statutes provide the owner-driver is not liable for injuries received by his nonpaying passenger unless the driver has been grossly or willfully negligent or reckless.

V. Rules of Law: courts, particularly appellate courts, formulate rules which pother courts, especially lower courts, abide by. However, when an appellate court attempts to regulate standards of behavior by issuing strict rules, these standards are likely to prove too inflexible, and other courts are not likely to apply them in every situation. Pokora v. Wabash Ry. Co. Look twice at the train tracks. For D. P, a truck drive, arrives at a railroad crossing. Dye to an obstruction, he is unable to see if a train is coming. He stops his truck, looks, listens, and then slowly proceeds to

cross the track. He does not get out of the truck to look. While crossing he is struck by a train. The jury could have found that P was not negligent even though he did not get out of his truck to look for a train. To leave ones vehicle in such a situation is an uncommon precaution.. likely to be futile, and sometimes even dangerous. It is very difficult to create rules of law to govern standards of behavior. Extraordinary situations may not wisely or fairly be subjected to tests or regulations that are fitting for the commonplace or normal.

VI. Violation of Statute: sometimes, however the legislature passes a statute which appears to define reasonable conduct in a certain kind of situation. This is most often true of legislation establishing safety standards for industry, transportation etc. A substantial body of case law has arisen discussing the extent to which the court is required to treat a violation of such legislation as negligence per se. Osborne v. McMasters The drugstore owner that forgets to label poison. For P. D owns a drugstore. His clerk sells a bottle of poison to P without labeling the bottle poison, as required by statute. P, not knowing that the bottle contains poison, drinks the contents, and dies. D is negligent because he violated the standard of care imposed upon him by statute. Ps action is not statutory; it is simply based on conduct by D which, because of the statutory duty of labeling, is deemed by the court to constitute negligence per se. A. Applicability of Statute: There are three main requirements for application of the negligence per se doctrine: (1) D violated a statute; (2) the statute was designed to protect against the same type of accident that Ds conduct caused; and (3) the accident victim falls within the class of persons the statute was designed to protect. o Stachniewicz v. Mar-Cam Corp. o The Indian in the barroom brawl. For P. o P, sitting in the Ds bar, becomes innocently enmeshed in a barroom brawl, and is injured. An administrative regulation provides that no tavern operator shall permit or suffer any loud, noisy, disorderly, or boisterous conduct, nor permit any visibly intoxicated person to enter or remain upon his premises. o This regulation and the statute under the authority of which it was promulgated, were intended to protect not only the interest of the community at large in peace and quiet, but also barroom customers from the carnage of the barroom brawl. Therefore, P fell within one of the classes of persons to be protected by the act, and violation by D constitutes negligence in itself.

o Ney v. Yellow Cab Co. o The keys left in the taxi. For P. o Keys are left in a parked car by D, and a sequence of events leads to P being harmed. The court has construed the purpose of the statute was to guard against theft, so there was negligence per se. in the cases where it has been found the purpose of the statute was for some other purpose, there has been no such automatic liability. o Perry v. S.N. and S.N. o The day care center that sexually abused children. For D. o A Texas statute requires any person having caused to believe a child is being abused to report the abuse to authorities, and makes the knowing failure to do so a misdemeanor. The Ps two children, B and K, attend a day care center operated by X. The Ps allege that the children have been sexually abused by X, and that the Ds, who are Xs friends, observed the abuse and failed to report it to the authorities. Therefore, the Ps claim, the Ds are civilly liable because their failure to make the report required by the statute constituted negligence per se. o Where a statute imposes a duty that does not correspond to any duty existing at common law, this is a factor weighing against the application of the negligence per se doctrine. Furthermore, the statute here is relatively vague. Lastly, the application of negligence per se here would impose immense potential liability against a broad class of individuals whose relationship o the abuse was extremely indirect. Therefore, the negligence per se doctrine should not be applied to failure to notify authorities under the statute. o Casual Link: even where the statute is applicable to the facts of the case, the negligence per se does not make the defendant liable unless the plaintiff shows that there is a casual link between the act and the injury. For example, if D violates a statute requiring a particular type of warning, but the accident would have happened anyway, even if the warning or device had been furnished, then the negligence per se doesnt matter. B. Effect of Statute: violation of a statute can establish the standard care. o Martin v. Herzog o Man contributes to his own accident. For D. o P drives a buggy after dark without lights, in violation of a N.Y. criminal statute requiring lights. The buddy collides with Ds automobile, and P is killed. The trial judge instruct the jury that it may consider the lack of lights as

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some evidence of negligence, but not as conclusive on the question of negligence. On appeal, J. Cardozo states We think the unexcused omission of the statutory signals is more that some evidence of negligence. It is negligence itself. Since there was evidence at trial that the absence of lights was casually related to the accident, Ps violation was necessarily contributory negligence, and he may not recover. Zeni v. Anderson The nurse that didnt use the sidewalk. For P. P, a pedestrian, declines to walk on a snow-covered sidewalk, and instead uses

a portion of the street through which pedestrians have beaten a path. D, a driver, hits P from the rear. A statute provides that where sidewalks are provided, it shall be unlawful for pedestrians to walk upon the main traveled portion of the highway. D argues that Ps violation of the statute renders her contributory negligent per se. P wishes to introduce evidence that she and others had previously fallen on the sidewalk, and that it was therefore sager to walk on the road. o P is entitled to show that using the road was safer than using the sidewalk. Violation of the statue merely established a rebuttable presumption of negligence. The presumption may be rebutted by, inter alia, a showing that compliance would have involved a greater risk of harm VII. Proof of Negligence: A. Court and Jury: Circumstantial Evidence: Circumstantial evidence: evidence of one fact.. from which the existence of the fact to be determined may reasonably be inferred. It involves, in addition to the assertions of witnesses as to what they have observed, a process of reasoning, or inference, by which a conclusion is drawn. The jury, is the finder of the facts. However, what this really means is that the jury will be permitted to find the facts only where these facts are in such dispute that reasonable persons could differ on them. If the case is sufficiently unclear that it is permitted to go to the jury, the jury will decide two principle factual issues: (a) what really happened; and (b) whether the facts as found indicate that d breached his duty to care to p, in a way that proximately caused ps injuries. o Goddard v. Boston & Maine R.R. Co. o The banana peel without color specification. o P, like the plaintiff in Anjou, fell on a banana peel in a railroad station, But because here was no testimony as to the color or composition of the banana,

the appellate court held that it was quite likely that it had been dropped just a moment before, by another passenger, in which case the railroad did not act unreasonably in not sweeping it up instantly. o Anjou v. Boston Elevated Railway Co. o The dirty banana peel. o P, departing from a train run by D Railroad, slips on a banana peel left on the railroad platform. No one testifies as to how long the banana lay there prior to the accident. However, witnesses testify that the banana was, after the accident, flattened down, and black in color, dry, gritty, as if there were dirt upon it. o H for P. The jury could have justifiably inferred, from the appearance and condition of the banana peel, that it had been on the platform for such a long period of time that Ds employees would have seen and removed it if they had been reasonable careful. o Joye v. Great Atlantic and Pacific Tea Co. o The banana peel in the supermarket o For D. Court was unable to find in the record sufficient evidence to present a jury issues as to constructive notice to d of a dangerous condition. o Ortega v. Kmart Corp. o The spilled milk case. o For D. P did not present sufficient information to show the defective condition existed long enough so that it would have been discovered and remedied by an owner in the exercise of reasonable care. o Jasko v. F.W. Woolworth Co. o The pizza slip. o New trial from holding for D. P slipped on a piece of pizza in ds shop. This court addressed the necessity of notice of the specific condition. P claimed that it was ds method of selling pizza that lead to such mishaps as her own., and that in such a situation conventional notice requirements need not to be met. The court agrees. o H.E. Butt Groc. Co. v. Resendez o The display of produce for sampling causing an unreasonable risk. o For D. P fell on two grapes and sued D for negligence. D had non skid surface and floor mates around a table that had three inch railing around its edges. There were also warning cones near the displays. P presented no evidence that the display created an unreasonable risk of customers falling on grapes.

B. Res Ipsa Loquitur: the thing that speaks for itself allows the plaintiff to point to the fact of the accident, and to create an inference that, even without a precise showing of how d behaved, the d was probably negligent. Requirements for Res Ipsa: (1) no direct evidence of ds conduct; (2) seldom occurs without negligence; (3) in ds control; (4) rule out ps contribution; (5) accessibility of information, p must show that a true explanation of the events is more readily accessible to d than to herself. o Byrne v. Boadle o The barrel of flour falling from the warehouse. o P was walking in the street past Ds shop, when a barrel of flour falls on him from a window above the shop. In ps suit against d, his evidence demonstrates only these facts, and shows nothing about any actual acts by D or his employees. o For P. P has presented enough evidence to justify a verdict for him. A barrel could not roll out of a warehouse to without some negligence, and to say that a p who is injured by it must call witnesses from the warehouse to prove negligence, seems preposterous it is apparent that the barrel was in the custody of d who occupied the premises, and who is responsible for the acts of his servants who had control of it. o McDougal v. Perry o The spare tire. o P is driving behind a truck drive by d. As the truck goes over some railroad tracks, a heavy spare tire comes out of its cradle underneath the truck and falls to the ground. The trucks rear wheels then cross over the spare, throwing the spare in to the air. The spare crashes through Ps windshield, injuring him. P sues D on a res ipsa theory. At trial D testifies that the tire was secured to the trucks underside by a chain, which he says he inspected before the trip. (The chain cannot be located for the trial.) the Judge instruct the jury that it may apply res ipsa. The jury finds for P. D appeals on the goruns that this is not the type of accident that would not have occurred without negligence. o For P. We conclude that the spare tire escaping from the cradle underneath the truck is the type of accident which, on the basis of common experience and as a matter of general knowledge, would not occur but for the failure to exercise reasonable care by the person who had control of the spare tire. o Larson v. St. Francis Hotel o The falling chair.

o After stepping out on the sidewalk, p was struck on the head by a heavy, overstuffed chair from Ds hotel. No one saw where the chair came, but it is reasonable to infer that it came from the hotel. P sues under res ipsa. o The court holds that the doctrine applies only where the cause of the injury is shown to be under the exclusive control and management of d and can have no application. That is not the case here. A hotel does not have exclusive control, either actual of potential, of its furniture. o Ybarra v. Spangard o P goes into the hospital for an appendectomy. After the operation, his shoulder hurts, and turns out to have sustained a serious injury during the operation. P sues the surgeon, the attending physician, the owner of the hospital, and the anesthesiologists. He demonstrates that at least one of them must have been negligent, but is unable to offer evidence as to which. For P. The doctrine may apply because it is unreasonable to have P point out one D as guilty. Each D who has any control over P must beat the burden of proving P wrong. Sullivan v. Crabtree The car that drove itself off the road? P sued for damages for the death of their adult son, who was killed while a

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guest in a motor truck. D is unable to explain what caused the accident. Nonetheless the jury finds for D and P appeals. o For D. Case was proper for res ipsa because vehicle was under D control, and vehicles dont usually randomly run off the road without negligence. The application of the doctrine only means that the jury can find negligence, not that it has to. Therefore, the verdict in Ds favor is not overturned.

Causation in Fact
Causation in Fact

Ch 5

Injuries were the actual, factual, result of the Ds actions Question of causation in fact is purely a factual one, with few legal or policy issues attached Had the D not so conducted herself, the Ps injuries would not have occurred Restatement says a but for cause is always a factual cause Perkins v. Texas and New Orleans R. Co. o A train ran over Ps husband as a passenger in a vehicle. Train was going faster then it should have but RR tracks were marked with lights and bells. o Train speed was not the cause in fact of decedents death b/c even at proper speed would not have been able to stop the train.

I. But for test Sine Qua Non

D cannot claim that she is not an actual cause of Ps injuries merely because some other persons negligence also contributed to the harm (Joint Tortfeasors) o Hill v. Edmonds On a stormy night, D2 left his tractor truck parked in the middle of the road without lights. P was injured as a passenger in a car driven by D1 that hit the truck from behind. D1 was found negligent because he noticed the truck 4 car lengths ahead and had enough time to stop. D2 was dismissed. D2 should not have been dismissed from the case merely because the accident would not have happened without D1s negligence. o Anderson v. Minneapolis St. P. & S. St. M. Ry. Co. D negligently started a forest fire that swept over a large area, combined with another fire and destroyed Ps property. The negligence of the defendant was a substantial contributing factor to the damages and therefore should be held liable for the plaintiffs injuries.

II. Proof of actual cause P bears the burden of proving that the D actually caused his injury by a preponderance of the evidence. P must show that it is probable that the injury would not have occurred without the defendants act Reynolds v. Texas & Pac. Ry. Co. o Overweight P injured when she fell down a flight of stairs in the dark at a train station.

o Held that P adequately established actual cause. o Just because the accident could have occurred if the stairs were lit doesnt break the chain of causation. Dark stairs increased the chance of injury characteristic naturally leading to occurrence of injury Some evidence required o Real evidence is nonetheless required o Mere suspicion that the Ds negligence caused Ps injuries will not suffice o Gentry v. Douglas Hereford Ranch, Inc. Ps wife was killed when Bacon tripped and his rifle accidentally discharged. P claims D negligently maintained the deck stairs in a dangerous condition. The court held that P failed to prove cause in fact because of Bacons testimony stating he did not know what was the cause of his fall.

Expert Testimony o Some expert testimony may be necessary to prove actual causation by the D o Frequent in medical malpractice suits o Kramer Services, Inc. v. Wilkins P cuts his head on glass in Ds hotel; injury never heals and P develops skin cancer 2 years later. Expert testimony showed no probable causal connection between the plaintiffs developed skin cancer and the cut received by the broken glass in the defendants hotel. Mere possibility that is was the cause does not provide requisite causal connection. o Herskovits v. Group Health Cooperative of Puget Sound P alleges that a doctor employed by D was negligent in failing to diagnose P of lung cancer in a timely manner and reduced his chance of survival. The medical testimony of a reduction of chance of survival from 39 percent to 25 percent is sufficient evidence to allow the proximate cause issue to go to the jury. Any showing of a reduction is survival is an actual harm that can be connected to a negligent act. Jury could reasonably find D caused Ps death. o Expert testimony must meet the good science prong and the fit prong Daubert v. Merrell Dow Pharmaceuticals, Inc.

P brought suit against D claiming that he suffered from a limb reduction birth defect because their mothers took Bendectin during pregnancy. Scientific evidence used to prove causation was not admissible because it did not fit the proper scientific standards Unable to prove causation and case was decided on summary judgment

III. Double Fault and Alternative Liability (Concurrent Causes) Burden shifts to D when P can show that each of two persons was negligent, but that only one could have caused the injury Then it becomes up to each D to show that the other caused the harm. Summers v. Tice o Ds both negligently shoot at a quail bird in the direction of the plaintiff. The plaintiff was shot in the eye by a shot from one gun. Ds do not know which gun discharged the damaging bullet. o The court held that both Ds were liable for the Ps damages because the Ds could not prove which one alone committed the negligent act that caused injury. Market Share Theory o If a given member of the class of Ds is unable to prove that he did not cause the injury, a court may require him to pay a % of Ps injuries which Ds sales of the product bore to the total market sales of that type of product. o Occurs in product liability suits o Sindell v. Abbott Laboratories P claims that a drug taken by her mother during pregnancy caused her to develop cancer in her adult life. P could not identify the exact manufacturer of the drug and the trial court dismissed the case. Held that P did not need to identify the single manufacturer. B/c P could show the drug caused harm, D would be liable for proportion of damages equal to the market share it held unless D could prove D wasnt at fault.

Proximate or Legal Cause

Proximate or Legal Cause Unforeseeable Consequences

Ch 6

Policy determination arising out of a judicial sense that D, even one who has behaved negligently, should not automatically be liable for all the consequences, no matter how improbable or far-reaching, of Ds act. Atlantic Coast Line R. Co. v. Daniels o Introduction to proximate cause concept o In jure non remota causa, sed proxima, spectatur In law, not the remote cause but the nearest one is looked to. o To limit a potentially limitless chain of causes, we must look to the proximate cause of the injury and draw arbitrary lines to limit liability. Direct Causation impose liability for any harm that may be said to have directly resulted from Ds negligence, no matter how unforeseeable or unlikely o Often attacked because it may result in endless liability o In Re Polemis and Furness, Withy & Co., Ltd. While unloading the cargo, Ds servants negligently caused a plank to fall into the hold causing an explosion, which set the vessel on fire, completely destroying it. Because the fire was the direct result of the negligent act, D was held liable. Was not foreseeable that the exact harm would occur, but some harm occurred due to servants negligence.

Foreseeability or Scope of the Risk limits Ds liability to those results that are of the same general sort that made Ds conduct negligent in the first place o Results are generally foreseeable as to kind of injury and person injured o Foreseeability Test D will be liable if it is reasonably foreseeable that the negligent action will cause some sort of harm Determined at the time of action or negligent behavior o General Rule D liable for those consequences of his negligence that were reasonably foreseeable at the time he acted. o Wagon Mound I (P is wharf owner) Ds ship carelessly discharged oil into the harbor in a large quantity and did not clean up the spill. Later the oil was ignited when cotton waste floating on its surface was set afire by molten metal dropped by the workmen, destroying the dock.

D not liable because it was not reasonably foreseeable to D that oil could be set afire on the water and therefore the damage to the dock was unforeseen. o Foreseeable but unlikely Foreseeability rule has been weakened by cases holding that as long as the actual harm to P was remotely foreseeable, there is liability even though consequences are highly unlikely. Wagon Mound II (different P in this case ship owner) Ds ship carelessly discharged oil into the harbor in a large quantity and did not clean up the spill. Later the oil was ignited when cotton waste floating on its surface was set afire by molten metal dropped by the workmen, destroying Ps docked ship. Held that if a reasonable man can foresee and prevent the risk, then he is liable for the foreseeable damages. D is liable. D should have weighed the risk. Cleaning the spillage would have been unburdensome and should have been done.

Cardozo Foreseeability Rule o This standard is generally followed by American courts o D will not have liability for injuries that are highly extraordinary o Injuries that are somewhat-unlikely but not completely unforeseeable consequences of Ds actions can still be a proximate result o Injury that is seen to be extraordinarily unlucky or unlikely will not be a proximate result. o This is not a very bright-line rule o Yun v. Ford Motor Ps dad (Chang) is struck by a car and killed when pulled over on an interstate to retrieve a spare tire that became loose on Ps car. Held that the conduct of Chang was highly extraordinary and his disregard for his own personal safety constitutes as a superseding and intervening cause, breaking the chain of causation. Dissent argues that jury could find that it was reasonably foreseeable the tire would dislodge, fall into the roadway, and someone retrieving it could sustain injury. This case shows how Cardozo rule is not the end-all be-all for foreseeability and proximate cause.

Unforeseeable Plaintiff o Palsgraf v. Long Island R.R. Co. P was injured by a falling scale in the RR station as a result of an explosion of a package containing fireworks, dropped many feet away from the P. D not liable because the conduct of the guard who dropped the package may have been wrong, but not a wrong in the relation of P. No duty owed to P in this instance. Unforeseeable Consequences o Extensive Results from physical injuries If P suffers any foreseeable injury, D is liable for any additional unforeseen consequences (provided no intervening causes stem that supersede liability). o Egg Shell Skull Doctrine take P as you find them. Liable for all injuries, even if they werent foreseeable, if P was harmed by your actions. o Ryan v. New York Central R.R. Co. A woodshed is set on fire by the defendants careless management. The plaintiffs home was 130 feet from the shed and caught fire from the heat and sparks. Held that D could not be held liable for the fire that consumed Ps home because it was a remote result of Ds negligence. Proximate result would have been the woodshed burning down, not Ps home. o Bartolone v. Jeckovich Car accident P was in was said to have aggravated a pre-existing schizophrenic condition, which has permanently disabled the plaintiff. D must take P as they come and if DS actions cause an unforeseen consequence, they can still be held liable. Evidence showed that P was more than able to live a normal life event though he suffered from a psychotic illness, and was only unable to function after the accident had occurred. Liability.

II. Intervening Causes A force which takes effect after Ds negligence, and which contributes to that negligence in producing Ps injury. o An instance that breaks the chain of causation

Superseding cause an intervening cause that is sufficient to prevent Ds negligence from being the proximate cause of Ps injury. A person is deemed to have foreseen the normal consequences of his conduct, but is not responsible for extraordinary negligent intervening acts of third persons. If D should have foreseen the possibility that the intervening cause might occur or the kind of harm suffered by P was foreseeable, Ds conduct will be the proximate cause. If neither the intervening cause nor the harm was foreseeable, the intervening cause will be superseding and D is not liable. **Not all intervening causes are superseding causes that break the chain of causation** Dependent v. Independent Causes o Dependent Intervening Cause one which operates in response to Ds negligence Can be superseding Ex a grossly negligent rescue that causes injury o Independent Intervening Cause one which would have existed even had the D not been negligent Most of the time, these are not superseding causes Acts of God o Normally held to be a superseding cause o Acts of nature that are truly extraordinary and not foreseeable Foreseeable Negligence o Negligence of a third person may also be an intervening force that is sufficiently foreseeable that will not relieve the D of liability. o Derdiarian v. Felix Contracting Corp. D2 lost control of his vehicle and crashed into a construction site, causing P to be splattered with 400-degree liquid that burst into a fireball. P survived and sued D2 for failing to take adequate safety measures. Held that D2 was an intervening cause, but not superseding. Car crashing into an improperly protected work site on the road is foreseeable. Liability o A third persons criminal conduct or intentional tortious acts may be sufficiently foreseeable that, even though it is clearly an intervening act, it will not be a superseding one. o Watson v. Kentucky & Indiana Bridge & RR Co.

P was injured when a third party lit a match and ignited gasoline vapor causing an explosion. The gasoline vapor was the result of the derailing of a rail car owned by D. If the third party was merely negligent, D is liable. If third party was acting intentionally D would not be held liable. Question for Jury.

Suicide o If plaintiff was sane at the time the suicide was committed, no liability to D o If injury drives plaintiff to be insane, and suicide is a product of the insanity, recovery is usually allowed. Suicide is an irresistible impulse due to injuries sustained from Ds negligence o Fuller v. Preis Dr. committed suicide after being in an automobile accident that caused him to suffer from head injuries. He was physically and mentally healthy prior to the accident. Ps suicide may not be a superseding act to the accident causing Ps head injuries. It will have to be shown that P was incapable of resisting an impulse due to the negligent act in order for D to be liable.

Rescue o If Ds negligence creates a danger that causes from third person to attempt a rescue, the rescue will not normally be a superseding cause, unless it is performed in a grossly careless manner. o If rescuer is injured, must show that injuries are reasonably closely tied to the rescue, and that D could reasonably foresee that there might be a rescuer and harm could come to the rescuer o Rescue Doctrine (1) The D acted negligently towards the person rescued and the negligence caused the danger to the rescuer, (2) danger is imminent, (3) a reasonable person would have concluded that the danger existed, and (4) the rescuer acted with reasonable care. o McCoy v. American Suzuki Motor Corp. The Plaintiff was struck by a car while offering assistance at the scene of a car accident. D owes a duty to the rescuer that is similar to the duty they owed to the party injured in the first place. The rescue doctrine allows an injured rescuer to sue the party that caused the danger. Liability.

III. Public Policy Social Furnishing of Liquor o Where D is not a commercial tavern or liquor store owner, but serves alcohol socially or as business entertainment, most states have not imposed liability on D o New Jersey does extend liability no social hosts who directly serve their guests, knowing that they guest will have to drive home o Kelly v. Gwinnell Zak provided Gwinnell with alcoholic beverages and then allowed him to drive home. Gwinnell was involved in a head on collision with Kelly on his way home. Kelly sued both Gwinnell and Zak, but court granted Zak summary judgment in his favor because host is not liable for negligent adult guest who becomes intoxicated at his home. Gwinnell appeals. Held for Kelly against Zak. A host who knowingly serves liquor to an adult guest, knowing both that the guest is intoxicated and that he will be operating a motor vehicle, is liable for injuries inflicted on third persons due to the negligence of the intoxicated driver. Dissent: This type of liability imposition is best left up to the legislature. Enright v. Eli Lilly & Co. o DES case. The Plaintiff, on behalf of an infant, sued the Defendants, various manufacturers of DES, for damage done to her because of a premature birth due to in utero exposure to DES. o Court did not believe that the public interest in providing a remedy for those injured by DES is stronger than the public interest in providing remedies for those injured by other means. o Causes of action are not recognized for children who have injuries that were caused by a preconception tort committed against the mother. IV. Shifting Responsibility Contracts or other agreements on responsibility o Agreement between D and third person that shifts responsibility to the third person. o If there is a strong policy consideration, D may not be relieved of liability. Cases with no agreement o Court has to take considerations such as:

The degree to which D should have foreseen the third person might be negligent The severity of the harm that would result if negligence would have occurred The lapse of time

Third persons failure to discover defects o Ex manufacturer produces dangerous product, manufacturer will NEVER be absolved of responsibility merely because someone in the distribution chain negligently fails to discover the danger.

Joint Tortfeasors
Joint Tortfeasors I. Liability and Joinder of Defendants

Ch 7

Joint and Several Liability - If more than one person is a proximate cause of Ps harm, and the harm is indivisible, then under traditional common-law rule, each defendant is liable for the entire harm. o Under this rule, P can sue either or both Ds and collect, but is only entitled to recover once (equal sum to her overall damages) o Applies for concurrent and joint tortfeasors Concurrent those whose independent acts occurred to cause proximate harm Joint those who acted in concert o Risk of one defendant becoming insolvent is put on the other defendants, not the plaintiff o Applies only when Ps harm is not capable of apportionment among defendants If harm is divisible, apportionment is necessary o Bierczynski v. Rogers Ds were racing on a two-lane road and one D crashed into P, causing severe injury. D not directly involved in the crash appeals because he was not actually involved in the crash. Generally accepted rules of causation that all parties engaged in motor vehicle race on the highway are wrongdoers acting in concert, and each participant is to be held liable of third party injuries.

Trend in the last decade to cut back or completely eliminate joint-and-several liability o Comparative or Contributory Negligence Contributory Negligence bars plaintiff from recovery no matter how minor the Ps negligence was as a factor in the injury Comparative Negligence is an apportionment system where percentages are allocated for fault and recovery is based off the % Remember, joint-and-several liability is not necessarily eliminated under comparative fault. Coney v. J.L.G. Industries P brings wrongful death suit on behalf of a P2 who died operating a hydraulic aerial work platform manufactured by D. D says P2 and his employer committed contributory negligence that contributed to P2s injuries.

Held that comparative fault does not defeat joint-and-several liability. Elimination of joint-and-several liability would have a harmful effect on the ability of a plaintiff to obtain adequate compensation. o As of 2000, 15 jurisdictions maintain pure joint-and-several liability. 5 of these states have retained traditional contributory negligence Maintenance of J-and-S liability is so P is not unfairly punished when one D is insolvent o Burden of Proof Situations where harm is theoretically apportionable, but in practice difficult to do because of difficulties of proof, courts have shifted the burden of proof to Ds to demonstrate a reasonable allocation of harms. Michie v. Great Lakes Steel Div., Natl Steel Corp. 37 Ps, part of 13 families, take action against 3 D companies who run 7 plants, for pollution nuisance that caused injury damaging both persons and property, and violation of municipal and state ordinances. Held where separate actions cause an indivisible harm,

plaintiffs can recover on a joint-and-several liability basis when apportionment is extremely difficult. Burden of proof is shifted to Ds to produce satisfactory proof of who is responsible. o Apportionment Between guilty and innocent parties Court may reduce Ds liability on account of potential reductions in the value of the interest of the P in question. Court will subtract from Ps recovery any decrease in the value of Ps interest that hadnt happened yet at the moment of Ds wrongdoing but was likely to occur in the future, even if D did not act tortiously Dillon v. Twin State Gas & Electric Co. Ps son was electrocuted to death when trying to catch himself from falling over the bridge and instinctively reached out to grab a wire to save himself from the fall. Currents dont normally run through the wires in the daytime.

D had no duty to protect decedent from falling. Its only liability was in exposing decedent to the danger of the exposed wires. It is beyond a doubt that if decedent had not touched the wires, he would have either been killed or seriously injured. Recover difference between what decedents life prospects were worth before touching the wire and what they were worth after. Successive Incidents Courts have often been able to apportion harm when the harms have occurred in successive incidents, separated by substantial period of time. Courts will usually place the burden of allocating the damages on the Ds, not the P. If it cannot be proved how much each is responsible, joint-and-several liability will apply Few courts have put the burden on P to present evidence that allows allocation, or they recover nothing. Bruckman v. Pena P collided with D and was injured. Then P was injured in second collision, and certain injuries obtained in the first collision were aggravated. Only D named in this action was Bruckman and his employer. Jury found for P and D appealed because of error in instructions making D at fault for both incidents. Held if injuries to P could not be apportioned, no recovery. It would not make sense to hold D liable for injuries subsequently suffered by injured person that he was not responsible for.

Several Liability o Pure several liability a defendant, regardless of the nature of the case, is liable only for her share of total responsibility Pay only for Ds apportioned share o This is a complete abolition of joint-and-several liability o 16 states now do this o Rationale just as P should not be responsible for an insolvent D, one D should not be responsible for the insolvency of another D

o Bartlett v. New Mexico Welding Supply, Inc. Three-car crash involving P, D, and an unknown driver. P was not at fault, D was found 30% at fault, and unknown driver was 70% at fault. P claims under joint-and-several liability, D is responsible for 100%. Held for D to pay only 30%. Enactment of comparative fault abandoned joint-and-several liability. Court finds no reason to make D pay 100% of damages. Court also points out that P takes chance of D being insolvent and may still not get 100%. Pure several liability jurisdiction Florida is also a purely several state with not joint-and-several liability o Argument is once contributory negligence is off the table joint-and-several liability should be abolished as well. II. Satisfaction and Release P is only entitled to one satisfaction of damages P can bring a serious of actions to obtain 100% of damages, but once that has been collected, further enforcement is prevented Bundt v. Embro o Accident involving 5 plaintiffs in 2 cars. Took suit against drivers and state for negligently obstructing stop sign. o Defendants moved to amend their answers to add the defense of discharge and satisfaction because Plaintiffs recovered a judgment for the same injuries against the State of New York. o Held for D. Ps are only able to collect once for their damages. Assuming jointand-several liability, NY payment releases other Ds from liability. If the recovery from one D does not fully satisfy the claim, the amount received is credited to other Ds who are liable. Release P may settle with one D, releasing them from suit and pursue a lawsuit against the remaining Ds o At common law, if P gave a release to one D this was held to release the other Ds as well. Only 2 states still apply common law release o Covenant not to sue if the settlement was a covenant not to sue, other Ds were not absolved of liability

Careful lawyers use this language so they do not release all Ds from suit o Most states hold that Ps recovery against non-settling Ds will be reduced by settlement amount o Cox v. Pearl Investment Co. P took suit against Ds for injury when she fell on property owned by D. P settled with tenant for $2500 in exchange for a covenant not to sue tenant. D motions for summary judgment because of common law rule where a release of one D releases all Ds. The covenant that Ps executed expressly reserved the right of P to sue any other person against whom they may assert a claim. Covenant not to sue is not a release.

III. Contribution and Indemnity Contribution what tort defendants seek from each other when more than one person is liable for the same indivisible injury o If P collects entire loss from D1, D1 can go after other Ds for a portion of the damages paid out. o Knell v. Feltman P was a driver of a car that collided with Ds taxicab. Ps passengers were injured and sued D. Jury found P and D to be at fault and entered a judgment against D. D sought contribution from P as a joint tortfeasor to Ps passengers. Contribution was enforced. It was irrelevant that the passengers did not join P as a defendant. The right to seek contribution belongs to the tortfeasor who has been forced to pay, and the existence of the right cannot logically depend upon the selection of defendants made by the plaintiff. o To the extent contribution is allowed, courts normally make Ds pay an equal share. Comparative negligence D may recover no more than the apportioned amount of the other D o Willful or intentional tortfeasors have no right to contribution from other tortfeasors. o A contribution D must in fact be liable to the original plaintiff. Contribution seeker has burden of proof to show that D would have been liable to original P.

o Yellow Cab Co. of D.C., Inc. v. Dreslin Wife is passenger in a vehicle driven by husband that collides with a taxi driven by Ds employee. Wife sues D and D cross claims against the husband. Judgment was entered against D and D sought contribution from husband. Intra-family immunity prevents husband from being liable to wife for tort against her. D cannot obtain contribution from him for his wife. o Settlements A defendant who settles may obtain contribution from other potential defendants Must show that other D was actually liable and that the settlement amount was reasonable. Settling defendants can letter be held liable for contribution This discourages settlement o Collusion between P and settling D Giving settling D immunity from later contribution may induce P and settling D to make a collusive settlement, in which the two parties unfairly gang up on the non-settling Ds. Good faith requirement If this is breached, non-settling D will be able to collect contribution from Paying a small amount doesnt necessarily mean settlement was in bad faith Slocum v. Donahue D negligently operating his automobile killed the Ps son. D filed third party suit against Ford for contribution and indemnity. Ford settled with P and moved for summary judgment for Ds claim.

D admitted to be drinking behind the wheel at time of accident. Claim defective floor mat caused throttle to jam. P not entitled to contribution or indemnity. Settlement was made in good faith and protected Ford from contribution seekers. Also, indemnity doesnt fit here because jury found D to be 100% at fault. o Mary Carter Agreements

Agreements where P enters into a settlement with one D and goes to trial against the remaining Ds. The settling D remains a party and guarantees P a minimum payment, which may later be offset by an excess judgment recovered at trial. These agreements create an incentive for the settling D to assist P in receiving a sizably recovery. Most courts uphold these agreements But the agreement must be disclosed to the judge, and many require disclosure to the jury Few courts disallow even with disclosure Elbaor v. Smith In Texas, Mary Carter Agreements are void against public policy Court held that such agreements present to the jury a sham of adversity b/t P and one co-defendant by pressuring the settling D to alter the character of the suit by contributing to the Ps case.

Indemnity o One tortfeasor pays some or all of the Ps damages and he is indemnified by the other tortfeasor for everything he paid. This occurs when there is a great difference in culpability of the two defendants. o Court shifts the financial responsibility from one D to the other. o Vicarious liability situations Indemnity is most common here If D is vicariously liable for the others conduct, the D will be indemnified. Employer-employee, retailer-manufacturer o Negligent vs. Intentional tortfeasor If one D is merely negligent and the other D commits an intentional tort, the intentional tortfeasor will be required to indemnify the negligent one. o Contracts Contracts between tortfeasors may provide that one will indemnify the other Building contracts between a general and sub contractor Sub may have to indemnify general for negligence in building the structure

Indemnity and Contribution are mutually exclusive remedies o Both cannot be applied to a given set of facts o Indemnity applies in vicarious situations o If both Ds are directly liable to the plaintiff, indemnity will not apply Reference Slocum v. Donahue D was also negligent so indemnity did not apply If suit went to trial, D may have been able to seek contribution if Ford was found to be negligent.

Duty of Care

Ch 8

Duty of Care I. Privity of contract: Can a person be liable in tort solely on the grounds that she has failed to act? Generally, no. This leads to the distinction between misfeasance and non-feasance. Misfeasance: attempting performance but doing the wrong thing; when the d mispreforms the contract, the possibility of recovery in tort is greatly augmented. Non-feasance: where d had done no more than make a promise and break it (not doing something); when there is only the promise and the breach, only the contract action will lie, and no tort action can be maintained. Winterbottom v. Wright The negligently cared for mail coach. D contracts with a post office to keep a mail coach in good condition. D fails to do so, and P, the driver, is inured when the coach breaks down. For D. Ds obligation of repair arose fom a contract. Any claim for non-performance of that obligation would therefore have to stem from that contract; since P was not a party to it, he cannot recover. MacPherson v. Buick Motor Co. The used car dealer that sold a bad wheel. D was a manufacturer of automobiles which bought its wheels from a separate manufacturer. D sold automobiles to a retailer, which sold the vehicle to P. P was in the vehicle when it suddenly collapsed, because a spoke shattered which was manufactured with defective wood. P was thrown from the car and injured. It was found that the defect in the wheel, had it been inspected, could easily have been discovered. However, D did not inspect the wheel before selling the automobile to the retailed. P sued for damages, stating that D was negligent in not inspecting the wheels on the automobile. D claimed there was no duty of care to anyone but the immediate purchaser. For P. The court holds that there must be knowledge of a danger, not merely possible, but probable. D was not absolved from a duty of inspection because it bought the wheels from a reputable manufacturer. It was not merely a dealer in automobiled. It was responsible for the finished product. It was not at liberty to put the finished product on the Markey without subjecting the component parts to ordinary and simple tests. H.R. Moch. Co. v. Rensselaer Water Co. The water that didnt stop the fire. D made a contract with P for the supply of water during a term of years. Water was to be furnished to private takes within the city at their homes and factories and other

industries at reasonable rates. While the K was in force, a building caught fire. According to P, D omitted and neglected to supply sufficient water pressure to stop the fire. For D. P has no tort cause of action against D. Ds action amounted mearly to nonfeasance, not affirmative misfeasance. If P were granted a right of action, then liability would be unduly and.. indefinitely extended by this enlargement of the zone of duty everyone making a promise having the quality of a contract will be under a duty to the promise by virtue of that promise.. to an indefinite number of potential beneficiaries when performance has begun. Clargett v. Dacy The lawyers and the foreclosure. The Ps twice are high bidders at a foreclosure sale. However, both times they fail to obtain the title because the Ds, who are the attorneys conduction the sale, fail to follow standard procedures, so that the debtor is permitted to redeem the property. The Ps sue the Ds to recover their lost profit on the sale, and allege that the Ds owed them a duty to conduct the sale with proper care. For Ds. 3rd parties may recover for negligence against attorneys with whom they do not have contract only if they are, in effect, creditor beneficiaries (intended beneficiaries under a will). Here, the Ds were retained by the mortgagee, who did not intended to benefit purchasers at the foreclosure sale (and who intended to extract the highest price possible from purchases, and objective directly at odds wit the interest of the purchasers) II. Failure to Act: Under common law, and generally still in practice, a person cannot be liable in tort solely on the grounds that she has failed to act. The rule is that, unless there is some special relationship between d and p, the former is not liable for her refusal to assist. Hagel v. Landsam The drunk 17 y/o in college. P, a 17 year old minor enrolled at the University, sued D for allowing P to become associate with criminals, to be seduced, to become a drug user, and further allowed her to be absent from her dormitory and failed to return her to her parents custody on demand. For D. P completely misconstrues the duties and functions of a university. No one is required to attend. There is no legal requirement for the university to regulate the private lives of their students. L.S. Ayres & Co. v. Hicks The kid who got his finger stuck in the elevator.

P, a 6 year old, is shipping with his mother in Ds department store. Through no negligence of D, Ps fingers get aught in the escalator and D unreasonable delays stopping the escalator, which aggravated Ps injuries. For P. The operator of a store has a duty to come to the aid of an invitee who is using an instrumentality provided by and under the control of D. However, since D did not originally operate the escalator in a negligent manner, he is only liable for the aggravation of the injuries which resulted from not stopping the escalator within a reasonable time. J.S. and M.S. v. R.T.H. The pedophiles wife. The Ps have two daughters who are sexually abused by D1, a 64 year old man. Ps sue D1, the mans wife, alleging that she knew or should have known of D1s predilection for sexually abusing minor girls, and that D2s inaction was a proximate cause of the abuse. D2 argues that even if she knew or should have known of D1s predilections, she had no duty to intervene or warn. For Pstheir claim may proceed to trial. The principle issue is whether the harm was reasonable foreseeable. Given the secretive nature of sexual abuse of children, the wife of an abuser is in a unique position to observe firsthand telltale sign of sexual abuse. Therefore, if she had some knowledge, she had a duty of care to prevent or warn of the harm. Tarasoff v. Regents of University of California The guy who killed Tatiana. Ds, psychotherapists, have a doctor-patient relationship with Podar, who tells them of his intent to kill Tatiana, Ps daughter. Neither D wanrs Tatiana or the Ps. Podar kills Tatiana. For D. Because of the special relationship between Ds and Poddar, the Ds ad a duty to warn the Ps of Poddars intentions if a reasonable person would have done so. (The Ds did not, however, have a duty to he Ps to confine Poddar, because of a state statute grating doctors immunity with respect to this kind of decision.) o On the other hand, if a doctor only believes an individual is a threat to themselves, there is no duty to warn others of that danger.

Third Restatements seven categories that impose a duty of care within special relationships o (1)A common carrier with its passengers; (2) an innkeeper with its guests; (3) a business or other possessor of land that holds its premises open to the public with those who are lawfully on the premises; (4) an employer with its

employees who are either in imminent danger, or injured and thereby helpless; (5) a school with its students; (6) a landlord with its tenants; (7) a custodian with those in its custody. III. Pure Economic Loss: If the harm is pure economic los, the courts take more seriously the claim that liability should be restricted. The cases fall into two categories: (1) negligent misrepresentation or misstatement causing economic loss; and (2) negligent acts causing economic loss. (Example: P owns a retail store, which he personally operates. P is injured by the negligence od D, a careless driver who hits P while P is walking. P can recover for his physical har, and will be permitted to tack on. As an additional element of damages, his loss of profits from being unable to operate the store.) State of Louisiana ex rel. Guste v. M/V Testbank The old bp case. D are owners of two ships that collide neat the outlets of the Mississippi River into the Gulf of Mexico. One of the ships, the Testbank, spills twelve tons of PCP into the outlet. The spill causes all fishing and shipping activity to be closed, in the outlet and 400 nearby square miles of waterways, for almost three weeks. A wide variety of businesses that have suffered economic loss, but no physical damage to a protected interest, sue. These include owners of ships, seafood restaurants, wholesale seafood purveyors, tackle bait shops, etc. For the Ds. All the claims are dismissed to the extent that they are for pure economic loss unaccompanied by physical damage to property. (An exception is made for commercial fishermen who had been using the affected waters.) The traditional requirement of physical damage to a proprietary interest serves as a bright-line rule, which has the virtue of predictability, thought it also creates an edge that can seem unjust. A contrary rule would spike up insurance costs and make the law unpredictable. o A modern court would probably rule in the opposite direction of this case.

IV. Emotional Distress: The question of whether a p may recover for emotional distress can be analyzed either in terms of proximate cause (i.e., is the motional suffering unaccompanied by physical impact ever sufficiently foreseeable that it should be regarded as the proximate result of ds conduct), or in terms of duty (i.e., does a d ever have a duty to guard against the imposition of emotional suffering, even where that suffering is not the result of a physical impact). Daley v. LaCroix D is traveling in his car near Ps farm. Through his negligence, the car leaves the highway, flies through the air, and sheers off a utility pole. Some electric lines, which lead into the Ps house snap, and a electrical explosion results. Though they are not

directly hit by anything, Ps suffer an emotional disturbance, with resulting symptoms that are arguably physical (weight loss). For P. [A] jury could reasonably find a casual relationship between the fright occasioned by ds negligence and the injuries alleged. Where emotional distress, which is proximately caused by a ds negligence, results in a definite and objective physical injury, the plaintiff may recover. This is true even if there is no physical impact at the time of the frightening event. Thing v. La Chusa A P who has unquestionably suffered serious and understandable emotional injury can be denied recovery due to the tight rules announced in the case. J.T., a minor, was injured when struck by Ds car. J.T.s mother, P, was nearby, but neither saw nor heard the accident. Ps daughter told P that J.T. had been struck by a car, P ran to the scene, where she saw her bloody and unconscious child, who she believed to be dead. Because P was not present when the accident occurred, she was not allowed to recover for her emotional distress.

V. Unborn Children: Starting in 1946, courts have overruled the bar on liability for prenatal injuries. A few cases have implied that for there to be recovery, the must be viable at the time of injury (i.e. capable of surviving if placed in an incubator). But all courts directly confronted with the issue have permitted recovery even when the fetus was only weeks old at the time of injury. If the fetus is allowed to recover after being stillborn depends on what the state legislature meant by the use of the word person when it provided at statutory right to a wrongful death action on behalf of persons. Endresz v. Friedberg The dead baby case. The Plaintiff, Mrs. Endresz, was injured in an automobile accident while she was seven month pregnant with twins. Two days later, the twins were delivered stillborn. The family brought four actions of negligence against the Defendant. The first two of these actions were for the deaths of each child. The other two charges were for loss of anticipated care during the minority and majority of each infant and for medical, hospital, and funeral expenses incurred. For D. This court holds that a childs life begins a separate life from the moment he is conceived. This court has previously decided that an action cannot be made for the death of an unborn child. They argue that an action may only be brought by a decedent, and that for one to become a decedent, one must first be born. The court believes that given an award to the parents would allow them unmerited bounty and

would serve the purpose of punishing the wrong-doer instead of compensating the injured. Procanik by Procanik v. Cillo The guy who wants to die. During the first trimester of Mrs. Procaniks pregnancy with the Plaintiff, she consulted the Defendants who informed her that she had been recently been diagnosed with measles. He ordered a test for German measles and the resulted were indicative of a past infection of Rubella. The Defendants negligently interpreted these results and told Mrs. Procanik that she had become immune to German Measles as a child. Actually, the past infection disclosed by the test was the German Measles that caused Mrs. Procanik to consult Defendants. Mrs. Procanik allowed her pregnancy to continue, not realizing that an accurate diagnosis of German Measles during pregnancy was likely to result in congenital rubella syndrome for her unborn child. Plaintiff was born with multiple birth defects. Plaintiff brought suit, claiming that the doctors negligently deprived his parents of the choice of terminating the pregnancy. He requested general damages for his pain and suffering and for his parents impaired capacity to cope with his problems. Plaintiff also seeks special damages for the extraordinary expenses he will incur due to his condition. An infant plaintiff may recover special damages for the extraordinary medical expenses he will incur, but may not recover general damages for emotional distress or for an impaired childhood. Unlike wrongful death suits for unborn child, few jurisdictions allow actions for wrongful life.

Owners and Occupiers of Land

Ch 9

Owners and Occupiers of Land I. Outside the Premises: There are two main subcategories. (1) Natural v. Artificial and (2) Conduct of others. Natural v. Artificial: landowners have generally been held liable for conditions upon their land which pose an unreasonable risk to persons outside of it. There are some exceptions, as well as clarifications, to this rule. The most important is the distinction between natural existing hazards and artificially created ones. Where a hazardous condition exists naturally on the land, it has almost always been held that the property owner has no duty to remove it or guard against it, even if it poses an unreasonable danger of harm to persons outside the property. (The exception for this is trees, which are distinguished between rural and urban areas.) Conduct of Others: the landowners duty of reasonable care may require them to control the conduct of others, whose behavior on their property may cause injury to those off it. Taylor v. Olsen If a tree falls are you liable? P was hurt when her car hit a tree, which had fallen onto the highway from Ds land. D was in the logging business, and had recently cut down half of the trees on the land, but had left the tree in question standing. For D. although the appellate court upheld a directed verdict for D, it suggested that since D was actively involved in logging the land, he could have been found by the jury to have had a duty to make a reasonable inspection of the trees (even though this was more or less rural terrain). However, since this particular defect could have been discovered only by cutting through the bark, and since there was no evidence that a reasonable inspection would have included cutting through the bark, the appellate court concluded that the trial court had been correct in directing the verdict for D. Salevan v. Wilmington Park, Inc. The baseballs are flying. The owner of a baseball park was liable for injury to a pedestrian arising from one of a continual series of foul balls hit by the players; the court asserted that the public has a right to the free and unmolested use of the public highways, and that the owner was required to take reasonable precautions (e.g., a higher fence) to guard against such injuries. II. On the Premises: The common law evolved a rigid series of categories of plaintiffs, as to each of which the landowner owed a sharply differing duty of care. The three principle classes were trespasser, lincensee, and invitee. (A) Trespassers: the person who had no right at all to be on the land. Generally, no duty is owned to a trespasser.

o Sheehan v. St. Paul & Duluth Ry. Co. o The man hanging out on the railroad tracks. o P trespasses along D railroads track. His foot gets caught in the track bed, and he is run over by one of Ds trains, which fails to stop in time. P alleges both that the roadbed was negligently maintained, and that Ds employees were negligent in not stopping in time. o For D. Since P was a trespasser, D owed him no duty of maintaining the roadbed, train brakes or other equipment in a safe condition, or of running the train at slow enough speeds to be safe. D may have owed P a duty once his prescence was discovered, but as to this duty, the evidence is that Ds employees met this standard. (B) Licensees: one who came on the land with the owners consent, but as a social guest (not a business visitor). The licensee is the beneficiary of a somewhat higher standard of care than is the trespasser, but a lower standard than would be owed to a business visitor or other invitee. o Barmore v. Elmore o The mentally ill son that stabbed the lincensee. o P and D are officers of a Masonic Lodge. P comes to Ds house to discuss Lodge business. While there, P is attacked and stabbed by Ds mentally ill son. P argues that he was an invitee and that as such, D owed him a duty to use reasonable care in keeping the premises safe for him. In support of this, P shows that lodge members often came to Ds house to pay their Lodge fees. o P was a licensee, not an invitee. P was essentially a social guest, since the discussion of Lodge matters, and the payment of fees to D, ran to the benefit of the Lodge, not to Ds own benefit. Since P was merely a licensee, D had no duty to use reasonable care to keep the premises safe for him, but merely a duty to warn him of dangers known to D. Here, the evidence was overwhelming that, despite two or three violent acts ten years previously, D had no knowledge tat his son was still likely to be violent to anyone. (C) Invitees: one who came with a business purpose. The owner owes a duty of reasonable inspection to find hidden dangers, and an affirmative action to remedy such conditions. o Campbell v. Weathers o The trap door on the way to the toilet. o D runs a cigar stand in a building. P, who has been Ds customer for many years, loiters in front of the stand one day for fifteen minutes, without making

a purchase, and then goes to use a toilet in the building. On the way, he falls into an open trapdoor in a dark hallway. D, argues that O was not an invitee, since he made no purchase on the day in question, and since the toilet was not open to the public (but was intended just for Ds employees). o For P. P had been allowed to use the toilet many times in the past, and there was no indication that it was not a public toilet. Furthermore, P is not blocked from obtaining invitee status merely because he made no purchase on the day in question. Anyone who enters a store with the present or future intention of being a customer is an invitee, since the owner implicitly invites him for a potential business purpose. o Whelan v. Van Natta o P buys some cigarettes in Ds grocery store. P then asks for an empty box for his son, and is told that he can find some in the back room. The back room is unlit, and he falls down a stair well. o P was only a licensee once he went into the back room. In doing so, he was not furthering the business for which he was originally implicitly invited onto the premises (i.e., to make a purchase). (D) Persons Outside the Established Categories o (1) Children: most courts have imposed on landowners the duty to exercise a higher standard of care toward children. The attractive nuisance: a possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if: (a) the place is one where the possessor knows or should know children will trespass; (b) the condition is one the trespasser is aware of; (c) the children do not realize the risk involved; (d) 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; and (e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise protect the children. (E) Rejection or Merging of Categories: a number of courts in the last decade have rejected the rigid categories of trespasser, licensee, and invitee, in favor of a general single reasonable person standard liability. o Rowland v. Christian o The guest and the broken faucet.

o P is a social guest in Ds apartment. P asks to use the bathroom, and while doing so severs part of his hand on a broken faucet. It turns out D was aware of the faucet and had asked his landlord to fix it, but failed to warn P. o Ps status as a trespasser, licensee, or invitee will not be dispositive as to the duty of care owed to him. Instead, the test will be whether in the management of his property [the owner] has acted as a reasonable person. III. Lessor and Lessee: a lessee of real estate becomes the possessor of the property. As such, he is treated as if he were the owner, and all the rules of owner liability discussed previously in this chapter apply to him. Only the tenant is liable for those areas for which he has actual possession. A lessor is generally relieved of liability once hey transfer possession to the lessee. This is true both as to dangerous conditions existing prior to the lease, and conditions arising thereafter. There are some exceptions: danger unknown to lessee which should be known to the lessor; rented property to be held open to public; common areas kept under control of lessor; lessor contracts to repair; repairs negligently undertaken. Borders v. Roseberry The icy stairs. P is a social guest in a house rented by X from D. Water continually drips from the roof of the house onto the front steps, and D begins to fix the problem by repairing the rood. However, he does not finish the repair by installing guttering, and X is aware that the repairs have no been finished. He fails to warn P about the whole problem, and P slips on ice caused by the freezing of the run-off. For D. D could reasonable assume that [X] would inform his guest about the icy condition on the front steps, and D is therefore not liable. Pagelsdorf v. Safeco Ins. Co. of America P, who is assisting Ds tenant, is hurt when he leans against a dry-rotted balcony railing which collapses. For P. D owed ordinary care to his tenant and to others on the premises with permission. Since modern social conditions no longer support special tort immunity for occupiers of land, there is no logical basis for a general rule of non-liability for landlords either. It would be anomalous indeed to require a landlord to keep his premises in good repair as an implied condition of the lease, yet immunize him from liability for injuries resulting from his failure to do so. Kline v. 1500 Massachusetts Ave. Apartment Corp. The lady that got assaulted in her lobby.

P is a tenet in a combination office-apartment building owned by D. At the time she became a tenant, the building had a doorman, but D thereafter ceased to furnish one. P is assaulted and robbed in the hallway of the building one night, and sues D. There is evidence that there had been an increasing number of assaults and thefts in the building. D had a duty to use reasonable care to protect its tenants from foreseeable criminal acts committed by third parties. D was in a much better position to take such steps than its tenants.

Damages

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Damages I. Personal Injuries: in any action based on negligence, the existence of actual injury is a requirement. Nominal damages may not be awarded. The plaintiff must show physical harm. Anderson v. Sears, Roebuck & Co. The burned boy and the evil insurance company. P was a young child badly burned in a fire caused by a heater manufactured by d. The court calculated maximum damages for past physical and mental pain, future physical and mental pain, future medical expenses, loss of earning capacity and permanent disability and disfigurement. The court found that the maximum reasonable recovery would have been $2,987,000, and the jurys actual award of $2,000,000 was therefore reasonable. Richardson v. Chapman P, a young flight attendant, is stopped at a light when he car is hit by a truck drive by D, Ps spinal injuries are so severe that she is render an incomplete quadriplegic. She has permanently lost all use of her legs, use of her fingers and hands, and has no control over bladder or bowel functions; she will need medical attention for the rest of her life. P presents the testimony of an expert economist, W, who testifies that based upon Ps life expectancy, her future medical expenses will range from 7.4 million to 9.6 million. He also states that based on her anticipated work history of 27.5 years, she has lost wages with a present value between 1.1 million and 2.3 million. The jury agrees on a $22.4 million award (medical, past and future wages, disability, disfigurement, pain and suffering). For P. the award was appropriate except for future-medical-except for future medical expense, which should be cut by 1 million to allow recover only up to the maximum of the experts testimony. This case shows that it will be up to the jury to determine awards, unless the award is a result of passion or prejudice, the award will not be lowered just because it is higher than other damages in similar cases. Economic losses: P can recover his direct out of pocket losses stemming from the injury. These include medical expenses, lost earning, and the cost of any labor required to do things that p can no longer do. o Medical expenses: P will be entitled to compensation for reasonable medical expenses. Past medical expenses must be proved at trial by submitting the bills into evidence. Future medical expenses must be proved by expert testimony. o Lost wages: a P may produce an expert in economics to testify about his income from working would have been.

o Loss of impairment of future earning capacity: awards may be based on how long the plaintiff would have worked and what he present value of her earning stream would likely have been. o Damage calculation (present value): in personal injury actions, a p is awarded a lump sum to compensate for all future pecuniary losses, such as loss of future wages or future medical expenses. Most jurisdictions require that the lump sum award for future losses be reduced to its present value. o Future inflation: many courts do not allow the jury to consider the effect that inflation would have on the sums of anticipated lost earnings or anticipated medical expenses. o Federal income tax: a special section of the IRS codes makes any recovery or settlement for personal injures tax-free. This is true even if the damages represent lost past or future earning. o Interest: Tort damages for personal injuries are generally un-liquidated. No precise sum of damages is sought by the complaint. The jury must set a value on the loss suffered by p. Non-economic losses o Physical pain and suffering, mental anguish: p can recover for physical pain suffered, which may include both suffering sustained up to the time of the trial as well as an estimate of the suffering which will occur during the future. P can also recover for various mental consequences of the injury, Loss of function or appearance (i.e., loss of sense of taste and smell) Emotional distress from legal malpractice (ED may be an element of damages only if p suffers physical injury; is exposed to physical injury; or is directly invaded by slander or malicious conduct) o Loss of enjoyment of life: these can be considered hedonistic damages (damages for the loss of ability to enjoy life). It is conceptually different from pain-and-suffering. o Per-diem argument: the lawyer suggest to the jury that a particular amount for each day, hour and minute of suffering ($2 per hour) would be fair. The lawyer then multiplies out this figure by the number of days or house of anticipated suffer (usually for Ps life expectancy) and emerges with a very precise, and large, figure. This is usually done in effort to give the jury guidance. Most courts allow the per diem argument on the theory that ds counsel can point out any flaws in the argument and.. the jury will not be mislead.

o Reduced life expectancy: in many stated, P may recover if he shows that his lie expectancy has been shortened. He will be allowed to recover for the anticipated value of these lost years, as well as for the lost income that could have been earned during them. Judicial control of amounts recovered o Trial judge: a trial judge or appellate panel can disturb the jurys finding on the amount of the damages only if the verdict is so excessive or so inadequate as to demonstrate that the jury acted contrary to the law. o Judicial review: if the judicial review concludes the award was inappropriate, the judge must then decide whether to set aside the verdict and grant a new trial on both liability and damages, or to allow the liability portion of the verdict to stand and to grant a new trial on damages alone. o Remittitur and Additur: if the judge decides to grant a new trial on the damages alone, the judge may make the grant condition Remittitur: to avoid the expense, inconvenience and delay of new trials in these cases, trial courts frequently, in cases of excessive verdicts, grant a motion for a new trial that is conditioned upon the refusal of P to accept a lesser amount. Additur: when the verdict is inadequate, the trial judge may grant the motion for a new trial conditioned on the ds refusal to pay a larger sum set by the court. Legislative Control of Amounts Recovered In response to tort reform efforts, about half of the state legislature have passed laws that in come ay affect the amount of damages recoverable. Many apply only to particular claims, while others cover all tort actions seeking recovery for personally injury, but applied only to non-economic injuries. Montgomery Ward & Co., Inc. v. Anderson The 24k bill that was discounted. P is injured when she falls in Ds store. P goes to UAMS hospital, where she receives surgical and medical treatment for which the hospital bills her 24k . Her attorney negotiates a 50% discount on the price of the bill. P then sues and asserts the right to collect the full 24k. D argues that it should have to pay only for the amount P will actually have to pay, not the amount originally bills. For P. The court chooses to adopt the rule that gratuitous or discounted medical services are a collateral source not to be considered in assessing the damages due a personal-injury plaintiff.

Zimmerman v. Ausland P suffers a torn cartilage in her knew as a result of a car accident caused by D. P does not undergo an operation. At trial, D presents testimony from a physician that had P undergone the surgery, she should have recovered completely. D argues that in light of this, no reasonable jury could find that D caused P to be permanently injured. For P. D was not entitled to a ruling that P had acted unreasonably. To obtain that ruling, D would have had to introduce evidence as to the risks involved, the probability of success, the expenditure of money necessary, and perhaps even the amount of pain which P would have suffered.

II. Physical harm to property: damages for physical harm to land or chattels is closely tied in with the concept of value (i.e., what the property is worth). If the property is destroyed, or is converted by d for his own use, the measure of damages is its entire value at the time and place of the tort. If it is damaged, the damages are measure by the difference in value before and after the injury. Market value is determined by what the property in question could proably have been sold for on the open market. For pets, other factors might include the animals training and characteristics as well as veterinary expenses. Most courts have not been persuaded by the argument that owners of pets should be able to recover emotional distress or loss of consortium damages. III. Punitive Damages: sometimes awarded to penalize the d, and deter similar wrongdoers, where ds conduct is particularly outrageous. Cheatham v. Pohle The sexy pictures. D and P were married. After the divorce, D kept nude photos of P and other pictures of the couple engaged in sexual acts. D distributed at least 60 copies to the community in which they lived and worked and added personal information about P on the pictures before distributing them. P sued D for intentional infliction of emotional distress and invasion of privacy, and was awarded damages (including $100,000 in punitive damages). A provision of the Indiana code provided that 75% of any punitive damage award must be paid to the state treasury in a fund for violent crime victims. P brought suit to determine whether the code violated the US Constitution (5th Amendment Takings Clause) and the Indiana State Constitution. For P. Punitive damages are a windfall to the D and not a legal right of P. Given that the purpose of a punitive damage award is to deter and punish wrongful activity, and

is not an attempt to value the injuries of plaintiff or make the plaintiff whole, civil plaintiffs are not entitled to receive punitive damages. Unlike compensatory damages, a trier of fact is not required to award punitive damages, regardless of whether such award is merited. A plaintiffs interest in a punitive damages award is strictly a creation of state law, and a plaintiff would have no property to be taken except to the extent that state law creates a right in property. Here, Indiana chose to define the property right as 25% of any punitive damage award, and so there is no taking of any property by virtue of the provision mandating a transfer of a percentage of the award to the violent crimes fund. State Farm Mutual Automobile Ins. Co. v. Campbell Evil State Farm. D (an insurance company) refused to settle a case in Utah against P (the policy holder) for the policy limits, even though there was (the Supreme Court later concluded) a near-certain probability that by taking the case to trial, a judgment in excess of the policy limits would be awarded. The Ps suffered emotional distress from facing a judgment of 136k in excess of the policy limits (though D ultimately paid this whole sum before the P v. D suit, this sparing P from actual financial loss.) The trial ct in the P v. D allowed evidence of 20 years worth of assorted alleged wrongdoing by D in states other than Utah, most of which had nothing to do with the refusal-to-pay-valid-claims practice at issue in the case itself. For D. In striking the award the Court relied heavily on the fact that there was a 145to-1 ratio between punitive and compensatory damages, far higher than the singledigit rations that the Court said would usually be the appropriate limit. The court also objected to the trial courts consideration of evidence of other wrongdoings that had nothing to do with the type of refusal to settle wrongdoing at issue in the case itself. One of the key factors in the due process analysis is the reprehensibility of Ds conduct, and only conduct that is similar to that which harmed P may be considered. Exxon Shipping Co. v. Baker The oil spill that brought punitive damages to 1:1. The court decided that punitive damages ought not be greater than the amount of compensatory damages properly awarded in the case. Exxon went around off the coast of Alaska and caused a spill. Hundreds of claimants, including commercial fishermen and native Alaskans, sued Exxon for their pure economic losses due to the companys negligence in allowing the spill. The lower court awarded punitive damages of 2.5 billion, which was considerably larger than

the compensatory damages awarded. Exxon contended that such a large punitive damage violated its due process. For D. The court began its analysis by saying that a punitive damage should be reasonably predictable in its severity so that even a bad man can look ahead with some ability to know what the stakes are in choosing one course of action or another. The court considered the possibility of setting a cap, but decided that there was a serious drawback on a cap since there was no easy way to index for inflation. Therefore, the court decided on a maximum ratio between the two damages. The court decided on a 1:1 ratio, which was above the historical medium award.

Wrongful Death and Survival

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Wrongful Death and Survival I. Wrongful Death: To counter common law, which extinguishes both the decedents claim and any claims from his loved ones once he has passed, all states have enacted what are called Survival statutes under which damages are awarded to the deceaseds estate. And to give a cause of action to the spouse and children of the decedent, Wrongful Death statutes have been passed. Moragne v. States Marine Lines, Inc. The seamans wife. The Supreme Court held that the heirs of a seaman killed on board should could recover for his wrongful death, notwithstanding the lack of a statute, and despite prior case law holding that he could not. The court noted that in recent years, every state had enacted a wrongful death statute, and that whatever public policy reasons were originally perceived to make such recovery undesirable no longer existed. (The court left for future cases the issue of exactly what beneficiaries should be entitled to recover). Selders v. Armentrout The dead kids mom. Three minor children of the Ps are killed in a car accident, due to the negligence of the Ds. The trial judge tells the jury that only actual pecuniary loss from the deaths (i.e., the amount that the children could have reasonable been expected to give their parents) may be awarded, apart from medical and funeral expenses For P. On appeal, court held award may also be made for the loss of society, comfort, and companionship of the children. Otherwise, the result would be that most children would have, in the eyes of the law, a negative value (since the cost of raising them is more than they can be expected to give back), and tort law would not be fulfilling its job of compensation. Furthermore, it is well accepted that loss of a spouse may be compensated for by damages for los of society, comfort, and companionship; there is no reason not to do the same for loss of a child. A dissent contended that wrongful death recovery was a statutory creation and that the statute should not be amended by judicial flat. Furthermore, said the dissent, the majoritys rule would result in excessive verdicts, because of the boundless sympathy of juries.

II. Survival: Every stat has passed a survival statute to modify the common-law rule in at least some respects. In about half of them, the decedents claim for personal injuries survives, whether or not the injury was cased by the defendant. In most states, survival actions are accompanied by

separate wrongful death actions, which leads to an danger of double recovery that is fixed by restricting recovery for pain and suffering by the decedent prior to his death. Wrongful death statutes: can apply to either a spouse or children, or in case there is neither, to parents. Proceeds go directly to the beneficiaries, with each one generally receiving what the court finds as being his own pecuniary loss from the death. Victims can normally recover for economic support or household services which the decedent performed. Murphy v. Martin Oil Co. The pain before the death. The court allowed suit under the Illinois Survival Statute for the decedents lost wages, damaged clothing and pain and suffering, all prior to a death caused by the defendant. This means that if the death is instantaneous, generally there is no survival action at all in such states, since all damages are sustained on account of or after the death. Value of a lost body function (e.g., loss of an arm) Pain an suffering Lost earnings Mental distress Hedonistic damages. (When P loses the ability to engage in a pursuit she enjoyed) Loss of consortium. (Apply when spouse, parent or child of a person who has a physical injury loses some aspect of companionship) Survival action. (Even though P is dead, his estate is allowed to recover for his pain and suffering, his medical expenses before death, etc.) Wrongful death action. (Survivors, such as a spouse, children orif there is no spouse and children, parentsget recovery for their grief, their loss of money that the decedent would have earned and given to them as support. Etc)

Extra: Catalog of various types of damages in mind.

EXTRA FROM CLASS Survival Many of the survival statutes provide that the cause of action for personal injury survive, but do not include causes of action that include non-physical injury for the plaintiff (i.e., slander, libel, criminal conversation). Damages collected over a survival statute by the estate, where does the money go? o Taxes o Debt o State Administration

o Spouse/Children o Parents Wrongful Death The benefits for this depends on the statute. The will does not determine. The statute names the beneficiaries, and the creditors and estate are not usually included. What about when the heir is a cousin that did not speak to the decedent. What damages are you entitled to? o Funeral costs, if they spent it, lost support, if they depended economically, lost of companionship, under a distant cousinnot too plausible.

Defenses
Defenses I. Plaintiffs Conduct:

Ch 12

(A) Contributory Negligence: the essence of the defense is that a plaintiff who is negligent (in the sense of not taking reasonable care to protect his own safety), and whose negligence contributes proximately to his injuries, is totally barred from recovery. The defense is thus a complete oneit shifts the loss totally from the defendant to the plaintiff, even if the plaintiffs departure from reasonable care was much les marked that that of the defendant.

Butterfield v. Forrester The speeding horseman. The defendant had blocked part of a road with a pole; the plaintiff, riding his horse rapidly at twilight, ran into the pole. The court held that plaintiff was barred from recovery, since had he been riding at a reasonable speed and looking out with reasonable care, he would have seen the obstruction and avoided it. Davies v. Mann The last chance to not hit the mule. The plaintiff left his mule blocking the roadway, and the defendant ran his wagon into it. Since the plaintiff had lost the opportunity to prevent the accident by the time it occurred (he had left the mule chained up), and the defendant could have prevented the accident at any time, the defendant was held liable. The court relied heavily on the fact that the animals presence on the road was not the immediate cause of the accident.

Claims in which defense is not usable: the defense may not be sued where the plaintiffs claim is for an intentional tort or when the tort committed is willful and wanton. It may still be used when the tort is merely gross negligence. Even if the defendants conduct is willful or reckless, contributory negligence will be allowed if the defendant shows that the plaintiffs conduct was also willful, etc. Last clear chance doctrine: if, just before the accident, the defendant has an opportunity to prevent the harm, and the plaintiff does not have such an opportunity, the existence of this opportunity (i.e., the last clear chance) wipes out the effect of the plaintiffs contributory negligence, leaving the defendant liable if she does not take advantage of the last opportunity. (B) Comparative Negligence: this system reject the all or nothing approach used by contributory negligence. It instead tried to divide liability between plaintiff and defendant, in proportion to their relative degrees of fault. As the idea is often expressed in statutes, the plaintiff is not barred from recovery by his contributory

negligence, but his recovery is reduced by a portion equal to the ration between his own negligence and the total negligence contributing to the accident. McIntyre v. Balentine The case that brought comparative negligence instead of contributory. The Plaintiff, Harry McIntyre (Plaintiff) and the Defendant, Clifford Balentine (Defendant), were involved in a car accident, with both parties being partially responsible. The jury found for the Defendant based on the contributory negligence doctrine. Plaintiff appealed and requested that the court adopt comparative negligence. This Court adopts the modified form of comparative fault in an effort not to fully abandon the states fault-based tort system. From then, only four states continue to apply the common law doctrine that contributory negligence as a complete bar to recovery. Pure v. Non-Pure Courts: if a system is pure and the total amount of damage is determined to be D1=50%, D2=30%, P=20%, P recovers 80%. But, if the system is one in which the plaintiff may recover only if his negligence is less than, or not grater than that of the defendant, it gets messy. (C) Assumption of Risk: a plaintiff is said to have assumed the risk of certain harm if she has voluntarily consented to take her chances that that harm will occur. Where such an assumption of risk is shown, the plaintiff is, by most courts that have adopted comparative negligence, no longer barred from recovery. The assumption is merely a consideration to be taken into account in making an apportionment of harm. Furthermore, some states now refuse to accept assumption of risk as a separate doctrine distinct from contributory negligence, and have in effect abolished it. o Three important exceptions: (1) when the party protected by the clause either intentionally causes the harm, or brings about the harm by acting in a reckless or grossly negligent way; (2) when the bargaining power of the party protected by the clause is grossly greater than that of the other party, typically a status the court finds to exist only when the good or service being offered is essential; (3) where the court concludes that there is some overriding public interest which demands the court refuse to enforce the exculpatory clause. o (1) Express: if P explicitly agrees with D, in advance of any harm, that P will not hold D liable for certain harm, O is said to have expressly assumed the risk of that harm. An express assumption of risk is generally enforceable, in which case it will completely bar P from recovery. o Seigneur v. National Fitness Institute, Inc.

o You dont have to go to the gym.. o P signs a contract with D (the operator of a chain of fitness clubs), in which P agrees that D shall not be liable to me for any injuries to my person or property[.] while P is exercising on a weight machine as a part of an initial evaluation conducted by Ds staff member, she injures her shoulder. She asserts in litigation that the exculpatory clause should be ruled invalid as a contract of adhesion stemming from the parties unequal bargaining power, and as a violation of public policy, o Court holds for D. As to Ps disparate bargaining power argument, this exception generally applies only when the service offered is essential in nature. Here, fitness clubs do not provide essential services, and in any event P could have purchased her own fitness equipment and exercised at home; this fact. Plus the availability of many competitive fitness clubs, presented Ds bargaining power from being grossly disproportionate to that of P, as the disparate-bargaining-power exception requires. o Here, given health clubs lack of great public importance, it would not be patently offensive to enforce the exculpatory clause (as it might be in the case of , say, innkeepers, public utilities, and common carriers or schools.) o (2) Implied: even if the plaintiff never makes an actual agreement with the defendant whereby risk is assumed by the former, she may be held to have assumed certain risks by her conduct. In this situation, the assumption of risk is said to be implied. Rush v. Commercial Realty Co. But you do have to go when you gotta go. P is Ds tenant in a building with an outhouse. One day when she is using the privy, she falls through a door in the floor, and has to be taken out with a ladder. P did not assume the risk of the defect in the floor. She had no choice, when

o o o

impelled by falls by calls of nature, but to use the facilities placed at her disposal by the landlord She was not required to leave the premises and go elsewhere. o Blackburn v. Dorta o Gotta rescue the kid! o Landlord negligently allows Tenants premises to become highly flammable, and a fire occurs. Tenant returns to the premises to find them ablaze, with his infant trapped inside. Tenant rushes in to retrieve the child, and its injured.

(We shall assume that the state is one which imposes upon landlords a duty of ordinary care for the safety of tenants and others on the premises with permission). Under traditional assumption of risk doctrine, Tenant would be barred from recovery, because he assumed the risk, even though he did so reasonable. But in most states that the perspective of comparative fault, not assumption of risk. Since his conduct was reasonable, it is not negligence, and his recovery would not be reduced at all. o However, now assume that the Tenant dashes in not to save his child, but to save his favorite hat. Tenants conduct will be reviewed to see whether his conduct was negligent. Tenants conduct is clearly, negligent, since a reasonably prudent person would not risk seriously injury in order to save a relatively unimportant object. Therefore, in most comparative negligence states Tenants recovery will be reduced (but, in a pure comparative negligence state, not completely eliminated) by the proportion of his culpability. Pure: the plaintiffs recovery is reduced by the percentage fault attributable to the plaintiff. P=%. Modified (not as great as): if the plaintiffs fault is equal to or greater than the defendants, the plaintiff is completely barred from recovery. PD=recovery Modified (not greater than): if the plaintiffs fault is not grater than the fault of the defendants. P<D=recovery

II. Statutes of Limitations and Repose: a frequent defense in tort actions, as in most other legal actions, is the statute of limitations. A general discussion of this defense is beyond the scoop of this outline. However, there is one aspect of it that has troubled courts for a long time: When the plaintiff does not discover his injury until long after the defendants negligent act occurred, does the statute of limitations start to run at the time of the act, or at the time of the discovery? Teeters v. Currey On June 6, 1970 the Plaintiff underwent surgery at the advice of her doctor to prevent future pregnancy. On March 9, 1973, Plaintiff delivered a premature child, with severe complications. Plaintiff initiated a malpractice suit, alleging that the Defendants previous surgery was negligently performed. This suit was initiated over three years after the operation, but approximately eleven months after discovering the pregnancy. The Defendant pleaded the statute of limitations in his answer. Many states now apply the to-of-discovery rule to all surgical cases, whether involving foreign objects or not.

Court holds that the Statute begins to run when the patient discovered, or in the exercise of reasonable care and diligence for his own health and welfare, should have discovered, the resulting injury. (A) Families: the common law recognize two immunities from suit growing out of the family relationship: that between spouses, and parent and child. o Husband and wife: at comon law, the husband and wife were considered as one person (and, as was often noted, that person was the husband). Therefore, it was considered illogical to allow the husband to bring a tort suit against his wife, or vice versa. Freehe v. Freehe Plaintiff was injured on a tractor and sued for personal injuries. The tractor was the separate property of his wife, the Defendant, along with all of the assets and income of the farm on which the accident took place. Plaintiff has no interest in the farming operation, nor is he employed by the Defendant. Plaintiff brought suit, claiming negligent maintenance of the tractor and failure to warn of the tractors unsafe condition. The trial court granted Defendants motion for summary judgment based on interspousal tort immunity Rejected all the traditional reasons for immunity, including: o Husband and wife: the onesness of husband and wife clerly no longer exists under modern law. o Peace and tranquility: it is not true that permitting suits between husband and wife would destroy the peace and tranquility of the house. If a state of peace and tranquility exists between the spouses, then the situation is such that either no action will be commenced or that the spouses will now the action to continue only so long as their personal harmony is not jeopardized. o Flood of litigation: a fear of abrogating the immunity would lead to a floor of litigation, involving rival matrimonial disputes, has not materialized in other states that have previously abolished the immunity. Zellmer v. Zellmer A good illustration of a states use of limited parent-child immunity to block suits for negligent supervision. Ashley, 3 years old, drowned in a backyard swimming pool while being supervised by her stepfather, D. D had parried P1 a few months before, at which point Ashley and her mother had moved into Ds house. D had agreed to supervise Ashley while P1 was at work. After the drowning, P1 and P2 (Ashleys father) sued D for negligent

III. Immunities:

failure to supervise. Their claim was effectively based on Ashleys own claim for negligent supervision, so that if Ashleys estate couldnt recover, neither could her parents. D raised the parent-child immunity defense and argued that (1) there was no reason for Washington to abandon its traditional parent-child immunity; and (2) the immunity should be extended to stepparents. The trial court agreed, and granted summary judgment to D based in the immunity. Court agreed with D. The Washington SC agreed with D on both of his immunity arguments. The court reasoned: the main purpose of the modern doctrine of parental immunity has been to avoid undue judicial interference with the exercise of parental discipline and parental discretion; there is no reason not to extend the immunity to benefit stepparents, who stand in in loco parentis to the same extent as legal parents. (B) Charities: at common law, charitable organizations as well as educational and religious ones received immunity for two reasons: (1) the charity holds the donations in trust, and the donor has not given these funds with the intention that they be used to pay tort claims, and (2) the beneficiary of the charity has impliedly waived his right to sue in tort, by virtue of having accepted this benevolence. Abernathy v. Sisters of St. Marys This case relied on the availability of liability insurance in abolishing the charitable immunity defense. They argued that liability should not be determined o whether the charity can satisfy a judgment. Therefore, whether donated funds held in trust can pay such a judgment is irrelevant. Also, there are at least some people who could not possibly have waived their right to sue, such as an unconscious accident victim carried to a charitable hospital, or a baby. Hence, the implied waiver theory is obviously legal fiction. (C) Employer Immunity: in all jurisdictions employees may recover from their employers for work-related injuries without having to show any fault on the part of the employer. The one aspect that is critical at this juncture is that because the statutes provide an alternative to the tort system, they confer immunity from tort liability on the employer and co-employees. Thus, under most circumstances, an employee who is injured on the job cannot file a tort claim against his employer or co-employees even if they were negligent. (D) State and Local Governments: State: State governments traditionally ad similar sovereign immunity, but this immunity has been largely removed. Nearly all states have now waived their common law sovereign immunity both for the state itself and for state agencies. States

have typically replaced the common-law immunity with special tort-claims statutes that give partial immunity. Local: Units of local government have generally at least partial immunity. This a city, school district, local public hospital, etc., when it conducts activities of a governmental nature, has been immune. But where such local units perform functions that could just as well be performed by private corporations, there has traditionally not been immunity. The distinction is between governmental and proprietary functions. Clarke v. Oregon Health Sciences University P was a 3 month old infant who had an operation at D, during which the medical staff of D behaved negligently, laving P with serious brain damage from oxygen deprivation. P became totally disabled and would need round-the-clock medical care for the rest of his life, resulting in economic damages to him of 12 million. The Oregon tort-reform statute had the effect of: capping a ps tort recovery against all state entities at 200k; and eliminating any recovery against individual employees of the state entity (such as the medical staff). BUT Oregon had a provision called the remedy clause, which provided that every man shall have remedy by due course of law for injury done him in his person, property, or reputation. Pre-Clarke the state interpreted this provision as saying that they could substitute new remedies for the original constitutionally-guaranteed right to sue at common law. This made the issue in Clarke whether the 200k cap plus not being able to sue the medical staff would leave P without a remedy. The court held for P and invalidated the statue as applied to him. Oregon concluded that the remedy clause merely prevented the legislature from leaving a plaintiff with a remedy that is illusory or the practical equivalent of no remedy at all. The court disagreed: it was true that the state constitution allowed the state leeway to modify common-law remedies, but the remedy clause did more than merely prevent the state from leaving the claimant with no real remedy at all; the clause prohibited leaving the injured party with an emasculated version of the original common law remedy. Applying the emasculation standard, the court found that the states reform package failed to satisfy the standard. The standards amounted to an emasculation of Ps remedies. Riss v. New York P, a young woman, is repeatedly threatened by a suitor X, that if she will not marry him, he will fix it so no one else will want her. P repeatedly asks the police of D (NY)

for protection which they refuse. X the hires a thug to throw lye in Ps face, partially blinding her. Held for D. D has no duty to provide police protection to any particular member of the public. If such a duty were recognized, and enforced by the courts, this would inevitable determine how the limited police resources of the community should be allocated and without predictable limits. The dissent argued that the polices denial of protection was not a conscious choice of policy but simply garden variety negligence, which should be actionable. DeLong v. Erie County P called 911 to report that a burglar was trying to break into her house. The coutys employee wrote own the wrong address; because of the error, the police were delayed in arriving at Ps premises. By the time they arrived, P was dead of seven knife wounds. Her estate produced evidence that had the police gone immediately to the correct address, P might have survived. The court held that this sistuaiton was different from Riss; here, by holding out to the public its 922 number, by taking Ps address, and by promising P that help would come, the county actually inceased the risk to P by inducing her to rely on its assitance. (E) The United States: Early American courts applied the English rule to hold that the United States could not be sued without itsconsent. The first major and meaningful consent by the US to tort claims was embodied in the 1964 Federal Tort Claims Act. This Act continues to day to be dispositive of almost all possible tort claims against the federal government. Many states have statutes similar to FTCA, others have enacted dollar caps as a part of their tort-claim statutes Deuser v. Vercera P is arrested for public urination by National Park Rangers in a National Park. The arrest comes during an event know as the VP Fair, at which many thousands of people are in attendance. Because both the Rangers and the St. Louis police are extremely overworked due to the Fair, the Rangers decide to release P rather than continue to hold him. At the time of his release, he is drunk well beyond the legal limit for intoxication. He wonders onto a nearby interstate and is struck and killed. His estate sues D (the US) under FTCA, arguing that the Rangers behaved negligently by releasing P rather than keeping him under arrest. The US defends on the grounds that the Rangers decision to arrest P, and their later decision to terminate the arrest, were both exercises of discretion, which cannot be the basis for FTCA liability. Held for D. That Handbook governing how Rangers should handle law enforcement during the Fair gave some guidance, but did not substitute for the Rangers own

judgment about whether to make an arrest. Similarly, nothing in the handbook or other Ranger guidance set forth a policy for when an arrest should be terminated. Decisions on whether to make or terminate an arrest are inevitable. Furthermore, the nature of the Rangers decision here was the kind of policy-based judgment that the discretionary function exception was designed to shield. That is, the Rangers decision was based upon social, economic and political goals, which are the very kind of goals that the exception is designed to protect. (F) Public Officers: public officials may be subject to personal liability for tortious conduct committed in the course of their official duties. In each of the possible situations, the public official may be shielded from liability if the officials conduct comes within common law official immunities.

Vicarious Liability

Ch 13

Vicarious Liability In some situations, the tortious act of one person may be imputed to another because of a special relationship between the two. In an essence, this is strict liability because the new person who is held liable is without any fault of his own. But this person cannot become liable unless the actual wrongdoer is found liable for Ps injuries. Still has negligence foundation I. Respondeat Superior look to the person higher up Also known as imputed negligence or vicarious liability If an employee commits a tort within the scope of his employment, his employer will jointly be liable o Deep pocket employer v. judgment proof employee This doctrine applies to all torts, including intentional torts Who is an employee? o Employee who is subject to the control of the person who hired him o Independent contractors are normally not subject to the control of the person who has hired him Vicarious Liability will not apply o Prosser Test a person is an employee when in the eyes of the community he would be regarded as part of the employers own working staff o Control Usually refers to the control over physical details of the work Not enough that the employer asserts control in a general manner in which the work is carried out II. Independent Contractors Murrel v. Goertz o P claims that D assaulted him when the two had an argument about the delivery of Ps morning newspaper. Sues D and the publisher of the newspaper, who is Ds employer. o Held that D was an independent contractor of the publisher and not an employee. The publisher controlled the territorial boundaries, set the time of delivery, and handled the complaints. But the publisher never met D or even knew that he was hired. The newspapers rules did not rise to the level of supervision, dominion, and control over Ds daily activities to make him an employee. For Ds. Scope of employment

o A difficult question to determine is whether or no the employee was acting within the scope of their employment Tort will be within the scope if the tortfeasor was acting with the intent to further his employers business purpose o Commuting Trips Most courts hold that when an employee is commuting from work to home or vice versa, that they are not acting within the scope of employment Coming-and-going rule Employer has no control over employee during a commute Exception if employers conduct has created an extra risk to the public that manifests itself during the employees commute Whether the accident was a generally foreseeable consequence of the risk-increasing activity at work. Bussard v. Minimed, Inc. Hernandez works for D as a clerical employee. D hires a pest control company to spray pesticides overnight at Ds premises. Next day, Hernandez reports to work and is one of 9 employees who became ill from pesticide fumes. On way home, Hernandez became dizzy and has a collision with P. Held for P. Normally coming-and-going rule would apply but exception applies here. It is foreseeable that an employee would not be fit to drive after inhalation of fumes for several hours, and could get into an accident on the way home. D contributed to the accident and is vicariously liable. Frolic and Detour o Frolic the pursuit of the employees personal business as a substantial deviation or abandonment of the employment Accidents occurring under frolic do not trigger Respondeat Superior o Detour a deviation that is sufficiently related to the employment to fall within its scope Trigger Respondeat Superior o Modern courts have replaced detour with the slight deviation test relying on the following factors Employees intent or purpose in making deviation Nature, time, and place of the deviation

The time consumed by the deviation The type of work for which the employee was hired Whether the act was incidental to the work How much freedom was allowed to the employee in performing his job responsibilities

OShea v. Welch o Welch was driving from his employers store to the district office to deliver tickets. He makes a spur of the moment decision to stop at a rest station and get an estimate for non-emergency maintenance and hits P on the main road. P sues Welch and employer under respondeat superior. o Held for P. Considering the 6 relevant factors, a jury could find that D engaged in at most a slight deviation from the scope of his employment. D was acting within the scope of his employment. o Needed maintenance check b/c D uses car for employment, given some freedom to tend to personal needs throughout the day, estimate would have only taken a few minutes. o Many modern courts have boiled the scope of employment problem down to a vague foreseeability standard Deemed to be acting within the scope of employment if the deviation was reasonably foreseeable

Employer liability will exist even if the employees act were expressly forbidden by the employer o Must be found that the acts were done to further purpose of employment Torts of employers customers do not trigger vicarious liability Independent Contractors o One who hires an independent contractor is not usually liable for their torts Remember not under employers immediate control o Exceptions Employers own negligence employers own dealings with independent contractor are negligent Hires someone who will not do work safely Failure to inspect Non-delegable duty some duties are so important that they cannot be delegated to independent contractor and subject to liability of the employer Normally involves peculiar risk of harm

Harm occurs in a public place Landowner hires contractor but owes P a duty to use reasonable care to keep a safe premises

Maloney v. Rath o D hired a mechanic to fix her breaks. Mechanic does the work negligently and D ends up in an accident with P caused by the bad brakes. o Held for P. D had a duty to keep his brakes in good working order. D could not delegate this duty to anyone else. Ordinary prudence would have allowed D to meet the statutory requirement. D could not hold mechanic liable for accident do to faulty breaks. Joint Enterprise o A short-term partnership between companies. Negligence of one joint enterpriser is imputed to another. Common example auto accidents where drivers negligence is imputed to the passenger o Requirements for joint enterprise An agreement between members Common purpose to be carried out by members Common pecuniary interest in the purpose An equal right to a voice in the enterprise Equal right of control o Pecuniary interests social trip where each member is pursuing their own independent business interest is not a joint enterprise o Popejoy v. Steinle Connie and William are owners of a ranch. Connie takes daughter to buy a calf and crashes into Ps truck. P is injured and Connie dies. P sues William on joint enterprise theory so Connies negligence is imputed to William. Held for William. The pecuniary interest element was not met for joint-enterprise liability. The daughter was to have financial interest in the calf, not either parent.

o Sharing expenses on a trip for independent business is not enough to show common pecuniary interest. Bailments

o Consent Statutes of states have enacted statutes that provide the owner of an automobile is vicariously liable for any negligence committed by one using the car with the owners permission o If the use of the borrower, or bailee goes clearly beyond the scope of consent, there is not liability of the owner o Automobile insurance policy extends to the insured and any member of insureds household or person who uses the automobile with owners consent o Judge-made doctrines Accomplishes the same objective of making the owner vicariously liable for negligence of one she permitted to use the car Family-purpose doctrine Enforced in 12 states Owner lets members of her household drive her car for their own personal use has done so in order to further a family purpose or family objective, and is therefore vicariously liable. Family car doctrine (aka) o Malchose v. Kalfell College student get in car accident with P. Students car is in parents (Ds) name. P sues parents of college student. Held for P. Family car doctrine applies. Ds tried to prove that real owner of the car was the Student. Ds bought car and gave student financial support to maintain car, which he could not due on his own. Even if title would eventually be transferred, it was not an error of the court to use the family car doctrine. o In absence of a consent statute, mere existence of a bailment does not make bailor vicariously liable for bailees negligence. But the bailor may be negligent for entrusting a potentially dangerous instrument to the bailee where he should have known that the latter might use it unsafely. Negligent entrustment of the bailor Claim directly against the bailor and not vicarious liability Imputed Contributory Negligence Where P would be liable to D for tortious acts of a third person, negligence of the third person will be imputed to P, reducing Ps recovery o P would be vicariously liable for third persons torts

o Rejected for the following relationships Driver-Passenger Husband and Wife Parent-Child Smalich v. Westfall o D was driving P car when it was involved in an accident. P was killed and Ps estate wanted to recover from D. Trial court found that Ds negligence needed to be imputed to the owner of the car, being P, and barred Ps estate from recovery. o Held for P on appeal. The relationship between P and D was not one that would make P vicariously liable for Ds negligence. Drivers negligence will not usually be imputed to the passenger of a car because passenger has no ability to control moment-to-moment carefulness of the driver (even if passenger owns the car). Both-ways Test o If negligence can be imputed, contributory negligence will be also. o Largely abandoned but remains viable in few areas

Strict Liability

Ch 14

Strict Liability Strict liability is liability regardless of Ds intent and regardless of whether D was negligent. There are three major context in which D can have strict liability: (1) in keeping iwld or toher dangerous animals; (2) in carrying out abnormally dangerous activities; and (3) on the part of the employer for the employees on-the-job-injures (not covered by Oxman). I. Animals: America applies the English rule of strict liability (with exception for dogs and cats). The common law states that the owners of animals or live stock are liable for property damage caused by them if they trespass upon anothers land. The rule only applied to animals likely to roam and do damage, which is why cats and dogs are not normally included. Some western states that depends on raising livestock have adopted the rule of strict liability. o Fencing in: an animal owner is not strictly liable if he attempts to fence in his animals, but he is strictly liable if he does not. o Fencing out: if P properly fences his land, he has a strict liability claim against one whose animals break in. Wild Animals: a person who keeps a wild animal is strictly liable for all damage done by it, provided that the damage results from a dangerous propensity that is typical of the species in question. o There are statutes protecting zoos from strict liability. Domestic Animals: a domesticated species is one which is by custom devoted to the service of mankind in the community in question. Thus bees, bulls, and stallions are generally held to be domesticated. The basis for classification of these animals is that ownership serves a social use and should not be discouraged by excessive liability. Injuries caused by a domestic animal (cat, dog, cow, pig) do not give rise to strict liability, except where the owner knows or has reason to know of the animals dangerous characteristics. Distinguishability: wild animals are the ones not considered in the previous category. To distinguish whether a wild animals dangerous propensities caused the damage in question, the fact that the average person fears animals of that species would be part of what makes the animal dangerous. It is not correct to assume that an animal is defanged, declawed, or generally-docile animal that is a part of a wild species hasnt caused the damage, if the damages stems from the plaintiffs panic over the animals presence. (I.e., P sees a tame bear, who would cause no harm, owned by D and has a heart-attack; D is liable) II. Abnormally Dangerous Activities: Rylands v. Fletcher

The man-made overflow Ds hired an independent contractor to construct a reservoir on their property. When the reservoir was filled, water broke through from it onto an abandoned mine shaft on the property and flooded in to adjacent shafts owner by P. Ds were not aware of the abandoned shafts and were therefore not negligent (although the contract probably was). Lower Cts: court reversed, holding that there was liability because the oersin who for his own purposes brings on his lands and collect and keeps there anything likely to do mischief and it escapes, must keep it in at his peril, and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. House of Lords: Holding was affirmed, but was significantly cut back. Liability existed because the defendants put their land to a non-natural use for the purpose of introducing that which in its natural condition was not in or upon it, i.e., a large quantity of water. If they court said the water had entered during a natural use of the land, and had flowed off onto Ps land, there would have been no liability. This rule has been extended to include most activities that are inevitably extremely dangerous. The second restatement: codified Rylands to impose strict liability in caes of abnormally dangerous activities. Six factors are considered in determining whether an activity is abnormally dangerous: high degree of risk; risk of serious harm; cannot be eliminated even by due care not a matter of common usage; not a matter of common usage appropriateness; value. The third restatement: reduces the number of factors for determining whether an activity is abnormally dangerous and thus worthy of strict liability. The third restatement deems an activity abnormally dangerous if it satisfies two conditions: (1) it creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all factors; and (2) the activity is not one of common usage. Miller v. Civil Constructors, Inc. Shooting guns isnt ultrahazerdous in Merica! D1 operates some sort of firearm practice range in a gravel pit, and other Ds participate in the firing of guns in the range. P alleges that a stray bullet has ricocheted during the course to this practice and has somehow caused him to fall from a truck. P claims that all of Ds are involved in an ultra hazardous activity, and therefore should be held strictly liable for Ps injures.

For D. This was not an ultrahazerdous activity. To begin with, normally more than one of the six Restatement factors must be present for the activity to be ultrahazerdous. Here, all of them point to the activity not being ultrahazerdous. Indiana Harbor Harbor Belt R.R. Co. v. American Cyanamid Co. The toxic chemicals that arent considered ultrahazerdous. D manufactures 20,000 gallons of liquid acrylonitrile, and puts it into a railroad car that it has leased. It then causes the X Railroad to transport this substance to a railroad yard owned by P, located in the Chicago metropolitan area. Acrylonitrile is a hazardous and flammable substance. While the car is in Ps railroad yard, it leaks. Authorities require P to decontaminate the soil at a cost of nearly $1million. P sues D, arguing that even if D exercised reasonable care in maintaining the rail car and putting the chemical into it, D should be strictly liable because the chemical is by its nature ultra hazardous.

For D. We have been given no reason for believing that a negligence regime is not perfectly adequate to remedy and deter, at a reasonable cost, the accidental spillage of acrylonitrile from rail cars Even though the substance is toxic and flammable, it will not leak from a properly maintained rail car. The accident here was, therefore caused by carelessness (though it is not clear whose carelessness). Since this type of accident can be completely eliminated by the use of due care on the part of all concerned, there is no reason to make rail transport of the chemical more expensive by imposing strict liability on one party, the shipper/manufacturer. While P claims that it is unduly dangerous to ship toxic or flammable materials through a congested metropolitan area, most railroad routes involve hubs that are in metropolitan areas, and routing such cargo around metro areas would be prohibitively expensive and might involve other risks.

Products Liability
Products Liability I. Development of Theories of Recovery:

Ch 15

A. Negligence: There is no reason why the general principles of negligence, discussed previously, could not apply in a case in which personal injury has been caused by a carelessly manufactured product. Historically, the use of negligence theory for such purposes was drastically limited by the requirements of privity (i.e., the requirement that, in order to maintain an action P must show that he contracted directly wit D). This all changed during MacPherson. History: During the 27 years following Winterbottom, the courts modified that rule to permit negligence suits without privity where personal injury occurred from an inherently dangerous defective product. A consumer who was made sick by contaminated food could sue the manufacturer even though she had made her purchase from a retailed; the food was said to be inherently or imminently dangerous. o MacPherson v. Buick Motor Co. o The car dealer that sold the bad spokes. o D made a care that it sold to a retail dealer. The dealer in turn sold it to P. Due to defective spokes in one of the wheels, the car collapsed and injured P. Although Buick purchased the wheel from someone else, there was evidence that Buick could have discovered the defect by reasonable inspection. o For P. P could recover for negligence despite the fact that he was not in privity with D. His right of recovery arose out of tort law imposed by the court, not by the contract. It was not necessary for P to show that cars are in general inherently dangerous. The test should be whether the product was reasonably certain to place life and limb in peril when negligently made. If so, a negligence action may be brought even without privity. o This case established the general principle that once P shows that the product will be unreasonable dangerous if defective, he may sue in negligence without privity. The effect of this holding was virtually to abolish the rule of Winterbottom in a case where a negligently made product caused personal injury.

B. Warranty: warranties are a hybrid between a tort and a contract. Originally the action was in tort in an action of trespass on the case for breach of an assumed duty, and the wrong was conceived to be a form of misrepresentation, in the nature of deceit, and not at all clearly distinguished from it. In the latter part of the 17th century, courts established the fact that the tort action would lie for an affirmation of fact

(express warranty), even one made without knowledge of its falsity and without negligence. As a result warranty became a form of strict liability in tort. o (1) Express Warranties: a seller may expressly represent that her goods have certain qualities. If the goods turn out not to have these qualities, the purchaser (or affected person) may sue for this breach of warranty. Baxter v. Ford Motor Co. The pebble versus the shatter-proof glass. P buys a Model A Ford from a Ford dealer. Before the sale, Ford has given its dealers brochures, one of which describes the Model As windshield as Triplex, shatter-proof glass so made that it will not fly or shatter under the hardest impact. While P is driving the car, a pebble hits the windshield, making the glass shatter and hurting Ps eyes. For P. Ford expressly warranted that the glass was shatter-proof, and P had a right to rely on these representations, particularly since their falsity was not readily apparent. Furthermore, P may recover from Ford for breach of the warranty even though he purchased not from Ford, but from a dealer. o (2) Implied Warranties: the existence of a warranty as to the quality of goods can also be implied from the fact that the seller has offered the good for sale. Henningsen v. Bloomfield Motors, Inc. D, Chrysler Corp., produced a car with a defective steering mechanism. One of its dealers sold the car to P1, who gave it to his wife, P1. She was injured when the steering failed. For Ps. P2 could recover from Chrysler for breach of implied warranty of merchantability (imposed by the then-effective Uniform Sales Act, a predecessor to the UCC). She could recover notwithstanding the fact that she never contracted with Chrysler directly. The court said that it is clear that under modern mass merchandising techniques, the ultimate consumer, not the initial dealer, is the person being cultivated by advertisements. It is therefore not unfair to impose on the manufacturer responsibility to this ultimate consumer. C. Strict Liability in Torts: Implied warranty suits, as noted, provide for liability without fault, in the sense that negligence by D does not have to be proven. However, these actions have many contract aspects that are illogical where there is no

privity between P and D. For this reason, many courts, starting with Greenman, have allowed recover for strict tort liability. o Greenman v. Yuba Power Products, Inc. o If it can hurt people and they wont inspect it, youre in trouble. o D1 manufactures and D 2 retails the Shopsmith, a power tool that can be used as a saw, drill or wood lathe. P sees one on display, and he has his wife buy it for him. While he is using it as a lathe, a piece of wood clamped to the machine flies out and hits him on the head, severely injuring him. P does not give timely notice of breach of warranty to D1, as is required in warranty actions by CA law. o For P. Ps failure to give notice of breach does not bar his action, since D1 is strictly liable in tort. A manufacturer is strictly liable in tort when an article he places on the market, knowing hat it is to be used without inspection for defects, proves to have a defect which causes injury to a human being. The law of sales warranties is not a good way to protect consumers like P, because of requirements (like the notice-of-breach requirement) that are suitable only for commercial transactions. o 402A. Special Liability of Seller of Product for Physical Harm to User or Consumer o Two years after Greenman, cam 402A. (1) One who sells any product in a defective condition unreasonable dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if: (a) the seller is engaged in the business of selling such a product; and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. (2) The rule stated in Subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product; and (b) the user or consumer has not bought the product from or entered in any contractual relation with the seller. o (2) Product Defects

o The third restatement attempts to abandon the single definition approach and to replace it with separate functional rules for manufacturing defects, design defects, and defects due to failure to warn was its more fundamental change. o Some courts have embraced this approach, others have not, but all have considered it. o Topic 1. Product Defectiveness o 1 Liability of Commercial Seller or Distributor for Harm Caused by Defective Products: (a) One engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect. o 2 Categories of Product Defect: a product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings. A product: (a) contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product; (b) is defective in design when the foreseeable risks of harm posed by the product could have been reduced. (c) is defective because of inadequate instructions or warning when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions of warnings.