Torts: Fall 2012 (NYU)

Torts

INTENTIONAL TORTS
Establish if PFC exists. If so, list possible defenses

Physical Harms
Analysis - Two-Tiered System 1. No Assumption of Risk (against strangers) a. "Stranger" cases strict liability - No implied authorization b. Vosburg (no consent in classroom playground maybe) 2. Assumption of Risk (against those we have relationship) a. Liability requires malice or wantonness - Malice: intent to do harm beyond implied license - Wantonness: reckless indifference to welfare of others c. What is the scope of consent under circumstances? - Examine CONTEXT of situation Transferred Intent: under 1st Tier (no consent to accidental hit) Battery: Intentional infliction of harmful/offensive contact on another (RST) Prima Facie Case: - Intent is established if (RTT) o Person acts with purpose of producing offensive contact Vosburg v Putney: D kicks P on purpose, doesn't intend to cause injury, but intends to harm nonetheless. Egg-Shell Skull rule. - OR o Person acts knowing that consequence is substantially certain to result Garrat v Dailey: D pulls chair out from under P, knowing that P would likely try to sit there and thus fall - Contact need only be offensive and unwarranted o Leichtman v WLW: No matter how trivial, battery is actionable Smoke in face probably not so much - Transferred Intent: intention is transferred to whoever receives the contact, regardless if they were the intended target o Talmage v Smith: D throws stick at A, but hits B. Liable to B. Assault (technically an emotional harm) - RST: D acts intending to commit battery or puts P in reasonable fear that battery will occur (imminent). - I. de S. v W. de S.: Assault is a trespass (no battery needed) - Tuberville v Savage: Can say "I want to hit you but won't" - Allen v Hannaford: (Unloaded gun) Reasonable fear

Property Harms
Trespass to Land: Intentionally going on land (mistakes don't matter) - PFC: ANY unauthorized entry to land (RST 158) o Enter P's land o Cause thing or 3rd party to enter o Remain on land o Fail to remove a thing that D had duty to remove - Entry alone constitutes trespass (Dougherty v Stepp) o Can't even accidentally go on someone's land, even if no actual damage is done. - Liable for all consequences of trespass, forseeable or not o Brown v Dellinger: Kids trespass and burn down house - Even if allowed onto property, cannot do damage (even by accident) o Cleveland Park Club v Perry (kid puts ball in pool suction) o Intent to put ball in suction is controlling, not intent to do harm Chattels: (Trespass to Chattels and Conversion) Both are similar and may overlap Trespass to Chattels: intentional interference with the right of possession of personal property - PFC: D wrongfully interfered with P's possessory interest in his chattel o D's act was intentional (bad faith not necessary) o Not claim of ownership (that's conversion) o Unauthorized use of another's chattel (deprives possessor of its use for substantial time, totally dispossess the chattel) o Must cause DAMAGE to chattel for P to recover (Intel) - Relief Available o Normally, reduction in value to chattel (rent, slight damages) o No injunctive relief unless you can show high probability of future damage (Intel) o Can only sue person who took it from you Conversion: intentional assertion of control over chattel that so seriously interferes with right of owner to control it that D must pay its full amount - PFC: Treating someone else's property as your own o Must be SERIOUS interference or damage to property (otherwise TtC) o If D2 buys stolen goods from D1 in good faith, still liable to P (even though had no way of knowing) - Defenses: o Mistake isn't defense (Poggi v Scott) o If P abandoned the property, then no ownership (Moore v Regents) - Relief Available o Full value of chattel at time of conversion. Owner may take it back, but not required to.

Defenses to Intentional Torts

Consent - If P consents to D's conduct, no longer wrongful (no PFC) o Stranger Case - depends on scope of P's consent Mohr v Williams: P only consented to operation on right ear, not left. Liable. o Consent Form - Can sign into consent. Overrides verbal objection. Hoofnel v Segal: D took uterus without verbal consent, but with signed consent of P. Not Liable. o Implied Consent - P would have consented if asked (CONTEXT) Schloendorff v Society of NY Hospital: P is asleep and D operates anyways (emergency rule). Not Liable. Vosburg: Playground ok since customary o Agent - Courts will usually go with will of guardian Lausier v Pescinski: Guardian says no to kidney transplant Curran v Bosze: Mom says no to bone marrow tests on twins for brother Strunk v Strunk: Guardian says ok to kidney transplant Insanity - Not defense for intentional tort o McGuire v Almy - Insanity is not defense. If D intended to act, then liable for actions. o RAE: with 2 innocent people, liability goes to the one acting Incentivizes caretakers to keep close eye on Self-Defense - Use of reasonable force to prevent threatened battery o Courvoisier v Raymond - D shoots P (cop), believing he was member of mob D must show reasonable belief of imminent battery and usage of reasonable force Mistake CAN be a defense Need 3 things Immediate danger requiring self help Response to an ongoing risk Response is proportionate to the risk (Use least force possible) o Morris v Platt - Get away with transferred intent if acting in Self Defense o Defense of 3rd Parties RST(76) - A can defend C from B as A would defend himself if A reasonably believes that C would be entitled to Self Defense. o Duty to Retreat - split as to whether D needs to retreat. Trending towards retreat. o RAE: if P contributed to mistake (e.g. assaulted D) then no liability. Otherwise StLy. StLy in intentional torts puts costs on best cost avoider (Self) Defense of Property o Ask to leave; defend w/o wounding force; if person attacks may escalate force; get gov't involved if all else fails o Bird v Holbrooke: intent MUST be prevent, not harm Must first ask trespasser to leave (notice) Cannot inflict serious harm. Cannot do indirectly what forbidden to do directly Private Necessity - Created by act of God

o Ploof v Putnam: owner must allow trespasser in time of need arising from AOG. o Buch v Amory: D can even use force if necessary, within reason o Vincent v Lake Erie: If trespass is result of willful act (arising from AOG), owner can still recover damages/rental o RAE: strict liability makes D single owner (responsible for all property) and thus D will act like it is all his own and minimize loss Public Necessity: Natural forces (fire) or 3rd parties (war) require destruction/seizure of private property o Mayor of NY v Lord: can destroy house to prevent fire spread

STRICT LIABILITY CONTINUED

Abnormally Dangerous Activities
o Actors who carry on abnormally dangerous activities are subject to strict liability Liability is limited to those harms that are within the scope of the risk Factors to consider when deciding an abnormally dangerous activity: existence of a high degree of risk of some harm to the person, land or chattels of others likelihood that the harm that results from it will be great inability to eliminate the risk by the exercise of reasonable care extent to which the activity is not a matter of common usage inappropriateness of the activity to the place where it is carried on extent to which its value to the community is outweighed by its dangerous attributes Questions of abnormally dangerous activities are left to the judge per RFT Examples of things that have sometimes been classified as abnormally dangerous activities: blasting, fumigation, drilling, fireworks displays have gone either way Theory: reciprocity of risk is important to the distinction (example: pets v. wild animals) *SL saves administrative costs Rylands v. Fletcher as basis***

PRODUCTS LIABILITY
Development of Strict Liability o 19th century mostly by privity requirement - just vendor (Winterbottom) o (MacPherson v Buick): rejects privity, holding manufacturers who voluntarily place their products into SOC strictly liable for injury caused by negligently made product that can cause serious harm to any potential user Precedent for modern PL in tort and implied warranty o (Escola v Coca Cola - Traynor): Negligence in manufacture of the product is not important, merely placing into SOC (pure SL)

Limitations: Must be NORMAL and PROPER use Manufacturer is in best position to prevent/minimize losses Eliminates proof complications o (Greeman v Yuba): manufacturer is SL when places an article in SOC that he knows will be used w/o inspection for defects, proves to have a defect that causes injury to a human being Condition of the product, not the conduct of the manufacturer is important Solidifies Escola RST Checklist: 402A: liable for unreasonably dangerous product IF o Yes Liability Seller engaged in business of selling product? - not occasional seller manufacturer, wholesaler, retail dealer, distributor, or restaurant owner Product expected to and does reach any user/consumer w/o substantial change? Did P meet burden to prove product was defective upon leaving seller? Product dangerous beyond what would be contemplated by ordinary user? o Unclear Liability Harm to bystander? Seller's product expected to be processed/substantially changed before reaching user/consumer? Seller's product a component part of a product to be assembled? o No No Liability Seller only occasional? - single sale (neighbor to neighbor, etc.) BUT, if occasional seller neg YES LIABILITY Were directions or warning given as to the products use? No warning needed for dangers only arising from EXCESSIVE use Did user/consumer assume the risk by MISUSING the product? o NOTES: Some products (drugs/chemicals) can't be made safe, so if producer properly prepares, markets and warns No Liability RTT Checklist: 1&2&3: Seller/distributor of goods who sells defective product is liable for harm to persons or property CAUSED BY THE DEFECT o Manufacturing Defect: STRICT LIABILITY Does product depart from its intended design? It can be inferred that the harm to P was caused by product defect w/o proof of the SPECIFIC defect when incident that harmed P: (Speller) o Was a kind that ordinarily happens as a result of product defects AND o Wasn't solely the result of causes other than defects at time of sale/distribution

Tough when defect is natural but unwelcome (fishbone in chowder) o Dominant test relies on reasonable consumer expectations This is like pseudo-RIL Design Defect: Could foreseeable risk of harm posed by the product have been reduced or avoided by adoption of a reasonable alternative design by the seller/distributor or a predecessor in the SOC? Open and Obvious danger is relevant, but not preclusive to P establishing a reasonable alternative design that would've reduced or prevented harm (DOMINANT POSITION) o Burden is on P to establish RAD o BPL is usually used to establish what reasonable alternative is (and if it exists) Defective Warning/Instructions: Foreseeable risk of harm could have been reduced/avoided by providing reasonable instructions/warnings. o Did omission render product not reasonably safe? Less effective than fixing defect, warnings can be misplaced o Sometimes ONLY OPTION drugs RST says warnings can be assumed read too broad today Most compelling when seller knows of GREAT risk, but consumer is ignorant (asymmetry of information) Balancing test: frequency of harm vs severity P has burden to establish risk should've been known to D Causation o Physical causation o Would P have made different choice in using product if D gave adequate warning? (MacDonald) o D must warn all persons who will foreseeably come into contact with and be endangered by product DEFENSES o P wouldn't changed behavior, regardless of warning o Adding warning would've led to warning clutter, thus none of the warnings would have been effective

NEGLIGENCE
Basic Elements: 1. Duty: D owes P a duty of care 2. Breach: D's conduct falls below standard of care required of reasonable person and creates unreasonable danger to P 3. Cause: Failure to take reasonable care is "cause in fact"/proximate case 4. Damage: P's harm

Duty:
-

What would a reasonable person do under the same circumstances? (Jury ?) Affirmative Duties o Analysis Statutory Duty: is there a COA built into statute creating an AD? Common Law: misfeasance vs. nonfeasance Malice: always a duty against willful conduct o Misfeasance vs. Nonfeasance Misfeasance: D acts with risk-making conduct (doing what reasonable person would NOT do) Risky Act or Omission Nonfeasance: D does not have a duty to prevent harm to P if he didn't create the risks

NONFEASANCE
Duty to Rescue o There is NO general duty to rescue stranger (Hurley - doctors) o D NEVER has to rescue P at risk to D's own life o There IS a duty if D's PRIOR CONDUCT created a risk and D is in a position to mitigate the risk through reasonable care (Natl Convoy - trucks don't warn) Doesn't matter if D created risk through negligence o D cannot start to rescue someone and then leave them worse off SPECIAL RELATIONSHIP: D has duty to control 3rd parties conduct o Generally: Only if D has special duty to P to protect from 3rd parties OR if D has duty to control 3rd party from hurting P (RST 315) o Landlord/tenant: Landlord must take reasonable steps to protect tenants from foreseeable criminal acts of 3rd parties (Kline v 1500 Mass) Consider totality of the circumstance and apply negligence test dangerous neighborhood, etc Duty - precautions must be proportionate to risk Common Area Think of surroundings Causation CIF: identity of intruder? Would've precautions mitigate harm? PROX: was this a foreseeable (preventable) harm? Did P's conduct contribute to the harm?

o Therapist: If shrink has reason to know that patient (D) will hurt others, shrink has duty to reasonably protect foreseeable victims (Tarasoff) Especially counts when D has identified intended victim (Tarasoff) Shrink helps facilitate the crime (Lundgren) Shrink has explicit promise to victim that they breach (Long) RAE Always consider efficacy of warning over involuntary confinement o Also: employer/employee, parent/child, hospital/patient, common carrier/passenger (Palsgraff) All exist because one has surrendered his ability to protect himself to the other, THUS they have duty to protect (Kline) Ks and 3rd Parties: No duty to 3rd parties not explicitly stated as beneficiary o Neg in form of K isn't liable if only denial of benefit and not an active harm (Moch) Gratuitous Undertakings: Once you start an action on behalf of another and they RELY on this, you have duty to continue it responsibly (Moch) o If neg, you are liable for all injuries resulting (LaSalle) o Bailment: if free, still can't be neg (Coggs: brandy barrels) o Safety Precautions: If voluntarily instituted, must continue or give notice of their lapse (Erie v Stewart) Owners and Occupiers: Owner has duty to act reasonably in light of possible injuries to others on property (Rowland v Christian) o Tripartite Standard: Most jurisdictions, Visitors divided up into 3 classes (Dumbrek) - (RAE loves this) Invitees: Business visitor/guest/public invitee who has express or implied invitation to enter/use another's land - for owner's benefit (RST 332) Duty to inspect and warn of dangers o Cry out warning/cordon off areas/fix problem Licensees: has permission to use land, but not necessarily invited (not for owner's benefit) - social guest, inspector, etc. Duty to warn of known dangers and not create dangers Can't have hidden hazards Trespassers: not supposed to be there No (maybe small) duty to unforeseeable trespasser (Dumbrek) On property at own risk (self-help) Cannot DELIBERATELY/willfully/wantonly injure trespasser o Must warn of traps (Bird: spring gun) o Some jurisdictions only look at whether or not a visitor should be there and lump together invitees and licensees (MN Sup Ct v Balach) o Unitary Standard: Some courts move away from tripartite categories and move towards duty of reasonable care for any entrant (Rowland v Christian)

 Apply negligence standard Based on policy of preventing future harm Significant Minority of courts use this RAE hates this o Public Officials: no division, owners must maintain in reasonably safe condition o Attractive Nuisance Doctrine Owner who has property with dangerous feature that will foreseeably lure children to trespass has duty to protect kids from danger they might run into (Maalouf) Owner must have reason to know that kids will likely trespass Condition is capable of causing serious harm Kids won't see risk (if they can, Ass of Risk) Not hard for owner to maintain safely compared to risk for kids Owner didn't exercise reasonable care to protect kids o (RST 339) Most courts permit recovery for artificial, not natural Focus on nuisance (harm-causer), not attraction

Breach:

Show D didn't meet standard of care Standard of Care is the "reasonable person" Intelligence: Normal Person (Vaughn v Menlove) Age: Kids are held to their age (RST), adults are all grouped together o Daniels v Evans: Kid doing adult things is held to adult standard o Roberts v Ring: Old people are held to adult standard Beginner/Expert: o Beginners held to average person (Stevens v Veenstra) o Expert held to standard of his field unless he represents to have higher or lower skill (RST) Insanity: No excuse unless infirmity strikes without warning (Bruenig v American Family Insurance) o Depends on whether or not infirmity was foreseeable Gould v American Ins. - institutionalized patient. Foreseeable Hammontree v Jenner - Car crash from sudden illness rests on neg analysis. Unforeseeable = no negligence. Physical Disability: Held to standard of others with same disability (Fletcher v City of Aberdeen) Emergency: to be considered when deciding if party acted rashly (Eckert v LIRR) o RST 296(1) Wealth: not a consideration in determining neg (Denver v Peterson) Calculus of Risk: Cost/Probability/Severity: Blyth v Birmingham: Not negligent in applying standard of care that ordinary person would. Low likelihood of harm (averages of past temperatures). Eckert v LIRR: o Not negligent to try to save a life unless do so rashly. o Risk can be justified due to extreme circumstances o Sequential Causation: Actions of A (child) may require B (train) to adjust accordingly. Here, to watch out for C trying to save A. Osborne v Montgomery: o Liability is premised on the balancing of social interests/risks Even risky action may be justified given circumstances(speeding firetruck) Cooley v Public Service Co: o Alternative hazard: cannot be expected to switch to a method which will harm more than the first US v Carroll Towing: BPL Hand formula - controversial/hard to apply o B < PL Hand Formula (Adopted by RTT) If (Burden < Cost of Injury Probability of occurrence), then the accused will not have met the standard of care required. If (Burden Cost of injury Probability of occurrence), then the accused may have met the standard of care. Andrews v United Airlines: Common carrier is held to very high standard

o Even if probability is low, must take all necessary precautions when aware Custom Generally: should be taken into account as evidence for assessing standard of care, but not controlling if reasonable person would not follow them (RTT) o Titus v Bradford: P (train veteran) knew ghetto-rigged train was dangerous Train work is inherently dangerous Reasonably safe is established relative to customs of the job, set by common practices of business, not juries o Mayhew v Sullivan Mining: Business custom isn't a substitute for ordinary care if it amounts to gross negligence o TJ Hooper: Industry standards can lag behind what is acceptable. If so, courts decide what is neg. o Lucy Webb School v Perotti: P can use D's own high standards against them Medical Malpractice o Locality Rule - No longer a thing (Brune v Belinkoff) o Lama v Borras: The PFC of MedMal P must show Basic norms of knowledge and medical care for gen practitioners or specialists (depending on what Dr. you see) Usually relies on expert testimony Proof that medical personnel didn't follow norms Causal relation b/t act or omission and the injury o Dilieto v County Obstetrics: If Dr. acts in accordance with average skill and care of his profession, he isn't liable o Jones v Chidester: If multiple, reputable schools of thought on an issue, Dr. may apply any one Informed Consent o Canterbury v Spence: Reasonable Patient Standard/Adequate Disclosure Full disclosure of potential risks which might affect reasonable patient's decision is required. (Patients have right to body/direct their care) Potential Hazards/Alternatives (if any)/Likely Results if untreated NO duty to disclose the obvious/known Exceptions to disclosure: patient unconscious and danger is imminent OR when disclosure poses threat (to psyche, etc.) that outweighs the benefit of informing Must be causal connection b/t failure to disclose and injury to P for liability o Kozup v Georgetown: If SUPER rare, no duty to disclose (1 out of a mil)

o Bly v Rhoads: P establishes material info through expert witness o Drs.' defenses Show condition was so horrible, surgery was inevitable Start from beginning of pain through surgery and indict Ps claim that he couldnt have consented Analyze all elements Did doc make it worse? Was there a better alternative? Was the information material? o RAE standardized consent forms and information solves this problem Statute (negligence per se) General: determine when a statute can give private cause of action. Reasonableness/negligence can be based on a statute (RTT) o If law prohibiting it, it's probably neg to do so Osborne v McMasters: Poison. Cannot violate a duty of care, whether it was created by statute or by common law. Either is negligence. (If statute, neg per se) o Statute can create a private right of action by specifically saying that party injured by violation of statute can sue o P can bring common law neg suit for injuries based on violation of statute (neg per se) o If not neg per se, P still can argue that conduct was neg RST 286: Statute is standard of conduct when statute's purpose is to o Protect class which P is a part of (Osborne) o Protect particular interest invaded (Osborne) o Protect interest against particular harm o Protect interest against particular hazard from which harm results (Gorris v Scott - sheep unrelated) Gorris v Scott: harm unrelated to what statute tried to protect Martin v Herzog: Statute might be evidence of failure for standard of care (therefore neg), though negligence must STILL be related to injury o Neg Per Se doesn't establish cause Defenses o Tedia v Ellman- sometimes it's safer to go with custom over statute (walk wrong side of the road) o Brown v Shyne - unlicensed chiro doesn't mean he isn't skilled o Ross v Harman - 3rd party can sometimes sever a connection (not here) Courts go either way on leaving car unlocked AND Most bartenders are liable for drunk driving patrons (though not all) Judge and Jury Issues tend to go to the jury if "reasonable people would disagree" o Facts o Due care

Issues tend to be determined as matter of law if "reasonable people would not disagree" o Standard of Conduct (Baltimore RR v Goodman) When standard is clear, it should be laid down once and for all by the courts Negligence is a mixture of law and fact Proof of Negligence (Breach) Methods of Proof o What D did o How dangerous it was o D's opportunity to discern danger o Availability of safer alternatives o D's opportunity to know about safer alternatives Res Ipsa Loquitur: the thing speaks for itself (negligence is assumed by the occurrence) Circumstances of accident and outcome can infer negligence without actual evidence of how D behaved No one knows (or will tell) how the accident occurred No way for P to know how it happened Apply either Prosser or RST D's job to show not neg (Byrne v Boadle) o Prosser Test Event must be kind that doesn't usually happen w/o negligence Must be caused by agency/instrumentality w/in EXCLUSIVE control of D AND, must not be due to any voluntary/contribution on behalf of P o RST Event must be kind that doesn't usually happen w/o negligence All other responsible causes are eliminated by evidence Indicated neg is w/in the scope of the D's duty to P o Byrne v Boadle: barrel falls out of window Action is PFC for negligence D's job to show that he was not neg Vicarious liability applies o Colmenares Vivas v Sun Alliance (old ppl, escalator stops) Accident wouldn't happen w/o neg (handrails don't usually stop) Exclusive control (non-delegable duty for authority over public area) Even though someone else has a responsibility, D can have exclusive control (thus the responsibility to make sure 3rd party does job) o Ybarra v Spangard: unconscious patient wakes up w/ new injuries If unconscious, all people who operated on can be neg for additional injuries

 Used to break the code of silece o Defenses to RIL Event can occur absent neg (AOG) No amount of reasonable care could stop (Larson: chair out window) Someone/something else COULD have plausibly caused (Holzhauer) P contributed

o Causation
Cause-in-fact is determined by the "but for" test: But for the action, the result would not have happened. For example, but for running the red light, the collision would not have occurred. For an act to cause a harm, both tests must be met; proximate cause is a legal limitation on cause-in-fact.

Ex. Think of guy texting on cell phone falling into pit without a railing - Cause of Fact: yea, he wouldnt have fallen in if there was a rail there - Proximate: If he wasnt dicking around on cell phone, he wouldnt have fallen in the pit. Of course, maybe cell phone malfunction, etc.

Cause in Fact (Factual Cause): P must establish a connection b/t the BREACH
and the injury suffered. Breach is A cause of P's injury. "But For" (Traditional): the accident wouldn't have happened BUT FOR the D's action. D's conduct is a NECESSARY condition of the injury. (RTT) o Look backwards o P typically tries to show that if D had taken more precautions, would've changed the outcome (Grimstad: Man Overboard!) Some modern courts shift this burden to D if P shows D had duty of care (Haft: lifeguard) 2 things could have caused it or merged to make it, both equally liable (if one is AOG, then other is stuck with the bill J&SL) Jury decides what is substantial and if D reached that o Slip and Fall: P must show D was unreasonably neg in conditions long time/D should've discovered o Toxic Torts (Gen Elec v Joiner) P must prove the substance of D can cause injury P must prove that D (not someone else) is source of substance P must prove that he WAS exposed to D's substance and it caused injury Mechanism: P must show his is a signature harm that typicaly results from exposure o Products Liability D must prove that P would've died regardless of neg in making product E.g. seatbelt wouldn't have stopped 18 wheeler demolishing P's car o Lost Chance: D's neg decreased P's chance of survival (Herskovitz) Most courts agree, if P started >50% and ended up 50% Recover Some courts, if P < 50%, proportional Typically, doctor diagnosis Substantial Factor Test (Exceptions): If neg act is deemed wrongful because that act increased the chance a particular type of accident would

occur, and that EXACT type of accident DID occur, then there is substantial evidence to say it caused the harm (Zuchowicz: Drug Overdose) o Used in Alternative/Merged Causes (Summer v Tice/Kingston: 2 fires) Proof of Factual Causation o Expert Witness Standard (Joiner) Frye: only "generally accepted" scientific data Daubert: narrower; court decides whether or not all scientific evidence that is admitted is adequate Defenses: o If D can show that P already had injury beforehand, OR that his conduct was completely unrelated to P's injury, OR that P's injury would've happened anyways D gets off o Under Substantial Factor, D must dismiss BUT FOR and show that his conduct wasn't substantial factor

Proximate Cause (Legal Cause) Basically: When neg action can foreseeably cause SOME harm (not necessarily the ACTUAL harm), then D is liable for all consequences which result before the circumstances CREATED by the neg act have been STABILIZED*** 3 different tests can be applied (all should start with ButFor) Directness Test/Remoteness Test (ex poste): Start with harm and work back to D's neg to see if D's neg act was close enough to cause the injury o Neg D is liable for all direct consequences of his negligence, foreseeable or not (Andrews Palsgraf/Polemis) o "But For" isn't enough o Is there a superseding cause that severs connection? o D's neg increased the risk of harm which remains until state of safety is restored (Horton: kid with dynamite) o D only liable for immediate, not remote result of D's neg (Ryan v NY RR) Foreseeability Test (ex ante): Was Ps harm in class of consequences (scope of danger) that was foreseeable at time D acted? Yes damages recoverable || Too Remote No o Neg D is only liable for consequences that are reasonably foreseeable o Neg D is liable only for those consequences that are reasonably foreseeable the risk reasonably to be perceived defines the duty to be obeyed (Cardozo Palsgraf/Wagon Mound No. 1) Substantial Factor Test: Was D's neg a substantial factor in causing P's harm? (RST; Andrews Palsgraf/Virden v Betts: ceiling and ladder) o Not widely used (mostly RST at this point)

Ordinary and Natural Test: Was damage natural and reasonable result of D's act? (City of Lincoln) Rescue Test: (Wagner v Intl RY) "danger invites rescue" o D was neg to person rescued and neg caused peril o Peril or perceived peril seemed imminent o Reasonably person would've seen it o Rescuer acted with reasonable care in rescue Emergency Situations (created by D): If D puts P in fear for safety and P is injured while acting reasonably to mitigate harm (Jones v Boyce) Statutory Duty: If P breaks a law and it doesn't increase risk of injury, then D is still liable (Berry v Sugar Notch) State of Safety: D is liable for all harms suffered by P under D's neg (foreseeable or not) until P is returned to state of SAFE AND NORMAL conditions. This will sever connection. (Marshall v Nugent) Intervening actions: one that produces another harm after D was neg o Intervening cause doesn't sever 3rd party actions that only happen because of D's act and that D had a duty to prevent, given the circumstances (Brower v NY RR) Resulting medical malpractice Resulting neg rescue Subsequent disease or accident o Superseding cause does sever AOG Criminal acts/intentional torts of 3rd persons Extraordinary forms of neg conduct NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS (NIED) o Physical Impact: P must have some physical impact to recover (rare) o Zone of Danger Test: P can recover if P was located in the dangerous area created by D's neg AND P was frightened by the risk of HARM Applied in most jurisdictions and recovery is limited to fear for one's OWN safety Bystanders are probably too far removed, though some courts have expanded o Dillon v Legg's 3 Prong Test: Many other courts use this Was P located NEAR the scene of the accident? As contrasted with one who was far Did the shock result from a DIRECT emotional impact on P from the OBSERVANCE of the impact? As contrasted with learning about it second-hand Were P and victim CLOSELY RELATED? As contrasted with NO relationship or distant relationship (usually must be nuclear family, some have relaxed and let it "partners")

DEFENSES TO NEGLIGENCE
o Plaintiff's Conduct
Contributory Neg o Usually a jury question o RST 463: P can't recover when his own neg is contributing cause with D's neg in bringing about P's harm o P owes D a duty to minimize damages to himself (must take care of himself) o D must show CIF and ProxC Basic Doctrine: P was negligent in protecting himself. Used to be a total bar for recovery (now comparative) o Butterfield v Forrester: D's pole in the road, P falls off horse Even if D is at fault, P must still use ordinary care for himself o Beems v Chicago RR: P is neg, D knows and doesn't change course D who is aware of P's neg must use ordinary care to prevent an accident Party on top has more liability than the one on bottom o Gyerman v US Lines Co: Union worker with sacks If employees report unsafe conditions, employer's fault if work continues P must exercise reasonable amount of care given the circumstances D must show P's neg was Proximate Cause o Blake v Neighborhood: if D violates statute protecting P (in workplace), then there can't be cont. neg. But if D follows statute, there can be cont. neg. o Mahoney v Beatman: Rolls Royce forced off the road, crashes due to speeding. Found cont. neg. (wouldn't have crashed if not speeding) o LeRoy Fibre Co v Chicago Ry: P must maintain his land to avoid injury to his property and others o Derheim v N Fiorito: Seat belt P has no duty to D (D takes P as he finds him) Should just mitigate damages (since under statutes), not bar recovery. It didn't CAUSE the accident, just the severity of the result Most states restrict the use of seatbelt cont neg Last Clear Chance o If P was neg, doesn't matter if D had last clear chance to avoid danger through reasonable care (Fuller) o RST

If P puts himself in harm but is helpless or inattentive, he can recover if D should have known that P wasn't in a position to help himself BUT doesn't do anything about it Imputed Contributory Neg Essentially only useful if e.g. driver has deal with passenger that passenger will be liable for all driver's torts Assumption of Risk D concedes harming P, but claims P assumed the risk, thus D has no duty to P Primary assumption of risk o Express: disclaimer/K Both parties must be on equal footing Willful or wanton misconduct are void for public policy Can disclaim SL and Neg Generally allowed for recreational activities Must have clear and conspicuous language/placement Disclaimers for essential services tend to be invalid (hospital, medicine) o Implied: P should be aware under the circumstances P goes on dangerous ride despite clear warnings from watching (Steeplechase) Conditions change during employment (Lamson/axes) Complains, but continues to work, despite knowing danger Secondary AOR o When D owes a duty of care to P, P may only continue despite D's neg when it is reasonable to do so o Similar to Comparative Neg (jury compares neg of both) Comparative Neg 3 basic types: Pure, Modified (Threshold), Admiralty o Pure: directly apportioned to fault. Used in 13 states (Li v Yellow Cab) o Modified "Threshold" (i) P must be 50% at fault (21 states) OR (ii) P must be < 50% at fault (iii) NOTE large discontinuity at the point where many cases end up 1. HIGH ERROR COST WITH NORMALLY DISTRIBUTED DATA (b) Admiralty "Pro Rata" (RAE) (i) Equal apportionment, regardless of fault (ii) No one uses this, but RAE loves it (iii)LOW ERROR COST WITH NORMALLY DISTRIBUTED DATA o By Legislation

Neg per se: if D violates statute designed to protect P, then P's CompNeg isn't considered

Notes: o Dominant position measures P's neg against COMBINED neg of all Ds o Juries allocated risk

o Multiple Tortfeasors: Joint, Several, Joint & Several, and Vicarious There is a big spread for states on how these get doled out
Contribution: D1 pays P (more than his share), then seeks partial reimbursement from other Ds due to their share of liability o Pro rata even division of loss apportionment Ds left are only responsible for their portion o Pro tanto Ds pay proportion to their amount of negligence Non-settling Ds are responsible for all damages left Incentive for D1 to settle fast and cheap, leaves D2 with the bag Indemnification: D1 pays P, then seeks entire or partial reimburse from other Ds o Express: in a K o Implied: Due to circumstances NOTE: retailer has this against manufacturer in Products Liability o Partial Indemnity: some states allow partial equitable indemnity based on pro rata share (AMA v Superior Ct)

Joint: any D who bears responsibility can be responsible for entire loss if other Ds are unable to pay (Union Stock Yards v Chicago RR) Several: Ds are only responsible for proportionate share, P is screwed if any can't pay (Brown v Keill) Joint & Several (Traditional): Any D is fully (jointly) responsible to P, but can get contribution from other Ds based on their liability (several) independent conduct of two (or more) actors combine to injure the P each tortfeasor who contributed to an indivisible injury is fully liable for the Ps damage liability amongst tortfeasors allowing the injured party to bring suit against any of the Ds, individually or collectively, and to recover from each up to the total amount of damages awarded If all Ds are present, each only pay their share BUT any may be responsible for the whole thing, no matter how small his responsibility

If P settles with D1 (pretrial), the other Ds are ONLY responsible for their own share, D1's settling doesn't redistribute the remaining damages When Ds harms = indivisible, hold Ds joint and severally liable; when harms = divisible, apportion

Alternative Causation: either D1 or D2 caused harm, not both caused harm, but don't know which one (Summers v Tice) Each D is sufficient and necessary condition of harm Burden is on Ds to prove that they weren't the neg one (Summers v Tice) o If neither can, 50/50 Market Share Liability: split based on D's market share (Sindell v Abbott Labs) o Requires All Ds are potential tortfeasors Essentially, all Ds that created product during relevant time are named Ds Harmful products are fungible P can't identify which D caused (not her fault) Insolvency of D RTT: Shift burden to all remaining parties (including P) proportionally based on fault (also: Evangelatos v Superior Ct) o UNLESS: intentional tort, Ds acting in concert, or vicarious liability OR rest of Ds share the burden

Vicarious Liability (respondeat superior): one person is held liable for the wrongs of another by virtue of relationship with that person [key inquiry = control] o Basic rule: employers liable for torts employees commit within scope of employment (Superior risk-bearer) Consider: foreseeability o Uniform applies even if servant is expressly forbidden to engage in the behavior o Frolic and detour Employer only escapes liability when no purpose of his was being served by employees actions Frolicing off for unrelated purposeno liability Detouring while on company businessliability Mix of business and pleasure If employee does personal thing regularly enough, employer might have implicitly given consent Commuting doesnt count o Independent contractors dont usually create liability. Implied Authority

 Degree of discretion given to worker (CONTROL) If worker works for # of different people If worker is paid by job, instead of time Apparent Authority: independent contractor is apparently conveyed to 3rd party as employee due to circumstances (Petrovich: HMO) o Borrowed servant rule (about control) If essentially still serving original master, employers can be JOINTLY liable o Owner consent statutes allow suit against vehicle owner for injuries suffered even if neither owner nor employee is driving

PG 319: COASES THM: APPARENTLY VERY IMPORTANT