Elizabeth C. Kretzsinger Torts Section 3 Fall 2011 I.

. Chapter 1 Development of Liability Based Upon Fault Introduction Tort comes from the Latin word tortus, which means twisted, and the French word tort which means injury or wrong. A tort is a civil wrong, other than a breach of contract, for which the law provides a remedy. This area of law imposes duties on persons to act in a manner that will not injure other persons. A person who breaches a tort duty has committed a tort and may be liable to pay damages in a lawsuit brought by a person injured because of that tort. Tort has been principally a part of the common law. Modern Tort Law Beyond the Casebooks Into the Field of Public Debate Major Purposes of Tort Law: o 1. To provide a peaceful means for adjusting the rights of parties who might otherwise take the law into their own hands o 2. To deter wrongful conduct o 3. To encourage socially responsible behavior o 4. To restore injured parties to their original condition, insofar as the law can do this, by compensating them for their injury o 5. To vindicate individual rights of redress Historical Origins o There is one theory that it originated with liability based upon actual intent and actual personal culpability, with a strong moral tinge, and slowly formulated external standards that took less account of personal fault. o A more generally accepted theory is that the law began by imposing liability on those who caused physical harm, and gradually developed toward the acceptance of moral standards as the basis of liability. o An alternative theory is that there has been no steady progression from liability without fault to liability based on fault. o Forms of Action Two common law writs are the genesis of tort law the writ of trespass and the writ of trespass on the case, often called action on the case. It was through action on the case, rather than through trespass, that most of modern tort and contract law developed. Trespass, because of its quasi-criminal character, required no proof of any actual damage, since the invasion of the plaintiffs rights by the case, which developed purely as civil remedy, there could ordinarily be no liability unless actual damage was proved.

II. Chapter 2 Intentional Interference with Person or Property Voluntary Act - an external manifestation of an actors will. All intentional torts require a voluntary act! Intent - the actor actively desires to cause the consequences of his acts, or they believe that the consequences are substantially certain to follow their act. 1. Elements o a. Actively desire the consequences of the act o b. Knowing the consequences of their actions are substantially certain to result. 2. Notes o a. These no do not negate intent: Good faith Mistake of fact (you have the wrong idea about something) Insanity o b. Doctrine of Transferred Intent: 1. The idea that when an intentional tort is committed, as long as the defendant held the necessary intent with respect to one person, he will be held to have committed an intentional tort against any other person who happens to be injured. All torts can have transferred intent. 2. Intent can transfer from person to person and from tort to tort. o c. If an insane person can form intent, they can be liable and if an insane person has the means for remedy it should be passed to them because it is unjust for the innocent person to suffer that burden. Battery - Intentional infliction of a harmful or offensive contact with a person or an extension of that person or anything practically identified with it. 1. Element o a. Intent o b. Person/extension of person o c. Harmful or offensive contact 2. Notes o a. Victim does not have to be aware o b. Look at act not consequences o c. Physical harm is not required; damage to personal dignity is sufficient o d. Does not have to be done in anger, can be a joke; anger is not a prerequisite. o e. Aggressor Doctrine - one who starts an altercation cannot recover unless there is excessive force. If excessive force is used to retaliate, then defendant would no longer have a justification for self defense. o f. Words combined with an act can show intent.

Assault - Intentional placing of another in reasonable apprehension of receiving an imminent battery. 1. Elements o a. Intent o b. Reasonable apprehension of a battery o c. No significant delay (imminent, immediate) o d. Must be aware, conscious 2. Notes o a. Intent: 1. Active desire for apprehension of harmful contact or 2. Knowing with substantial certainty that apprehension of harmful contact will follow o b. Victim must be aware or be harmed o c. Has to be immediate, not in the future o d. Words alone are not enough, must be accompanied by overt act o e. Words may undo act o f. A Threat to a third party is not an actual assault o g. Only need apparent present ability, not actual present ability 3. Weakness o a. Not immediate/imminent False Imprisonment - Total and intentional restraint or detention of the physical liberty of another through boundaries without legal justification. (Boundaries can be mental or physical). 1. Elements o a. Total restraint or detention o b. Intent o c. Awareness or harm 1. Awareness conscious of the occurrence at the time you can be blackout o d. Unlawful 1. Not privileged like a police officer 2. Do not have the persons consent 2. Notes o a. Threats of future action are not enough! o b. Look at alternative means of escape: 1. Barriers can be mental or physical ex. Threats to make you stay in a city. 2. Risk associated with escape 3. Knowledge that the alternative means of escape existed. o c. Lawful (privileged) if: crime has been committed, they have a search warrant, they had authority to arrest, etc. o d. Officer has to have probable cause for arrest to be made or they must get a search warrant.

o e. Moral persuasion does not constitute false imprisonment. Ex. staying to exonerate yourself o f. Intent: 1. Actively desire to confine 2. Know with substantial certainty the act will cause confinement Intentional Infliction of Mental Distress - One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another. 1. Elements o a. Intent/reckless 1. Intent: actively desire or know with substantial certainty 2. Reckless: knowledge with substantial certainty that there is a high probability or likelihood that the results will occur o b. Affirmative act: conduct must be extreme and outrageous o c. Causation: causal connection o d. Emotional distress must be severe (more than what a reasonable person would be expected to endure) Factors: intensity, duration, 2. Notes o a. Extreme Outrageous Conduct: goes beyond all bounds of decency, and is to be regarded as atrocious, and utterly intolerable in a civilized community. 1. However, liability does not extend to mere insults, indignities, threats, annoyances, petty oppression, or other trivialities. 2. Main Points: a. Actual apparent power to affect a persons interest o Ex. if cop says he is taking you to jail; not extreme or outrageous by virtue of his authority. b. Knowledge of persons susceptibility to emotional distress o Ex. Nickerson: crazy lady searching for pot of gold c. Privileged conduct in a permissible way o Ex. a landlord o b. Must be a causal connection between wrongful conduct and the emotional distress. o c. Emotional distress must be severe: seeks professional help, becomes ill, nervousness, shameful, humiliated, paranoid, fearful, anxious, nauseous, worried, cant sleep or eat, etc. o d. Factors: 1. Look at duration and intensity 2. Reaction must be justifiable and reasonable 3. Know of susceptibility

4. For people not related, there must be physical harm, if immediate family physical harm is not necessary. 5. Defendant must be aware of third parties presence.

Trespass to Land intentional invasion or intrusion into a legally protected immovable interest of another. 1. Elements o a. Intent to enter o b. Invasion/intrusion into a legally protected immovable interest 1. Can be on property, above property, below property, and upon property. o c. Unauthorized a thing (tangible, intangible) a third person the failure to remove something OR to continue presence once consent has been terminated. 2. Notes o a. Nuisance - interference with enjoyment and use of property; to sue for a nuisance there must be actual damages o b. Air travel is a trespass only if it enters into immediate reaches of the air space next to the land and interferes substantially with the use and enjoyment of the land. o c. Without consent - can be limited in time, space and purpose o d. Do not need damages o e. Consider if it helps society at large o f. Continuing trespass o g. Multiple trespasses o h. There must be a legal interest in the land to recover Ex. Landlord, renter Trespass to Chattel - Intentional invasion consisting of intermeddling, dispossessing or using of the movable property of another 1. Elements o a. Invasion, which is prohibited (intermeddling, dispossessing, using) o b. Intent actively desire to intermeddle, disposes, or use the movable, OR be substantially certain to intermeddle, disposes, or use the movable. o c. Movable property o d. Possession belonging to another o e. Damages a. Impaired in its condition, quality, or value b. Dispossess the other of the chattel c. Deprived of use for substantial amount of time d. Bodily harm to possessor or something that possessor has a legally protected interest in (person or thing)

2. Notes o a. One can use reasonable force to someone who is trespassing to chattel, but cannot recover for it. o b. Property can be tangible/intangible (computer signal) o c. Intermeddle intentional physical contact with the chattel o d. Dispossession is permanent (which would then probably make it a conversion)

Conversion intentional exercise of dominion or control over a chattel, which so seriously interferes with the right of another to control it and therefore can recover the full value of the chattel. 1. Elements o a. Intent actively desire to intermeddle, disposes or use the movable, or be substantially certain that their actions will intermeddle, disposes, or use the movable. o b. Complete or substantial dominion or deprivation of rights of the chattel. o c. Seriously interferes with the right of another. o d. Conversion of property to be your own: theft, removal of chattel from one place to another, transfer of possession without authority, withholding possession, destroying or altering the chattel, improper use of chattel, asserting ownership over chattel, etc. 2. Notes o a. For damages ask for full amount of chattel o b. More severe than trespass to chattel o c. Can occur in 2 ways: 1. If the chattel itself is physically harmed OR 2. If you value what might be contained in the chattel o d. Difference is degree: Totally Deprived: Conversion (totaling a car) Partially Deprived: Chattel (wrecking a car) 3. Defense o a. Good faith took chattel in good faith III. Chapter 3 Privileges Consent - Implied or expressed consent to intentional interference with person or property. 1. Requirements to consent: o a. Informed consent: have to know and understand what you are consenting to. o b. Have to have capacity (sound mind and cannot be underage/infancy). o c. Consent is vitiated under fraud or duress

2. Objective Manifestation - if it reasonably seemed to one in Ds position that P consented, consent exist regardless of Ps subjective state of mind. 3. Implied consent look at the circumstances because this is based on circumstances. 4. Exceeding scope - even if P does consent, D will not be privileged if he goes beyond the scope of that consent. o Exceptions are: unconsciousness, incapacitated, intoxicated, mental illness, infancy, emergency situations. o Exceeding scope constitutes a battery. 5. Medical care providers may act in the absence of express consent if: o 1. The patient is unable to give consent unconscious intoxicated mentally ill incompetent o 2. There is a risk of serious bodily harm if treatment is delayed o 3. A reasonable person would consent to treatment under the circumstances; and o 4. The physician has no reason to believe this patient would refuse treatment under the circumstances.

Self Defense - Anyone is privileged to use reasonable force (force that is or reasonable appears to be necessary) to defend himself against a threatened battery. 1. Aggressor Doctrine - LA's aggressor doctrine precludes tort recovery where the plaintiff acts in such a way to provoke a reasonable person to use physical force in fear or anticipation of further injury at the hand of the aggressor plaintiff, unless the person retaliating has used excessive force to repel the aggression. 2. Appropriate times to use deadly force (factors): o Generally, one is not justified in using a dangerous weapon in self defense if the attacking party is not armed but only commits battery with his fists or in some manner not inherently dangerous to life. o a. When the fear of danger of the person attacked is genuine and founded on facts likely to produce similar emotions in reasonable men. o b. Reasonable man to believe that the employment of a dangerous weapon is necessary, and that he actually so believes. o c. All facts and circumstances must be taken into account to determine the reasonableness of the actors belief, but detached reflections or a pause for consideration cannot be demanded under circumstances which their nature requires split second decisions. o d. Various factors considered to determine reasonableness of the actions of the party being attacked are: 1. Character and reputation of the attacker 2. Belligerence of the attacker

3. Large difference in size and strength of the parties 4. An overt act by the attacker 5. Threats of bodily harm 6. Impossibility of a peaceful retreat 3. Consider in analysis if the other party had the ability or duty to retreat. 4. Comparative fault two parties are at fault so damages are proportioned appropriately. o a. Pure comparative fault P 95% negligent, so they can recover 5% o b. Modified comparative fault you have to be < 50% at fault if youre the P 5. Contributory negligence if you contributed to the injuries you are banned from recovery 6. La. Civ. Code art. 2323 o a. Neg & neg you get a reduction based on Ps own fault o b. Sets out comparative fault regime o c. Neg. vs. intentional tortfeasor no reduction in recovery (for the P)

1. Retaliation - The privilege is one of defense against threatened battery, and not one of retaliation. When the battery is no longer threatened, the privilege terminates; and thereafter the original victim himself becomes liable for battery 2. Reasonable Belief - The privilege exists when the defendant reasonably believes that force is necessary to protect himself against battery, even though there is in fact no necessary. This is an instance in which a reasonable mistake on the part of the actor will protect him 3. Provocation - If the abusive words are accompanied by an actual threat of physical violence reasonably warranting on apprehension of imminent bodily harm, one may be privileged to defend. Words do not constitute a battery. 4. Amount of Force - the privilege is limited to the use of force that is or reasonably appears to be necessary for protection against a threatened battery. To justify resistance with a deadly weapon, defendant must have a reasonable apprehension of loss of life or great bodily injury. 5. Retreat - The defendant may stand his ground and use deadly force, and even kill his assailant. The victim may use deadly force if there is the slightest doubt, if reasonable, that the retreat can be safely made, and in determining whether his doubt is reasonable every allowance must be made for the predicament in which his assailant has place him in. 6. Injury to third party - So far as transferred intent is concerned the privilege of self-defense is carried over, and the defendant is held not to be liable to the third party in the absence of some negligence toward him. Affirmative defenses are pleaded and proved by the defendant.

Defense of Third Persons & Property - a person can use reasonable force to defend property (land or chattel). 1. A possessor of land does not have the privilege to use force intended or likely to cause death or serious harm against another whom the possessor see about to enter his premises or meddle with his chattel, unless the intrusion threatens death or serious bodily harm to the occupiers or users of the premises. 2. If someone takes your property you are allowed to use reasonable force to regain your chattel. 3. The privilege to defend ones land against an intruder is limited to unlawful intrusions. Thus, there is no privilege to use force to defend against those who are authorized to enter. 4. As in the case of self-defense, the privilege to defend property is limited to the use of force reasonably necessary to the situation as it appears to the defendant. 5. When the invader threatens the personal safety of the defendant of his family, the defendant may use deadly force if it is necessary in the circumstances. 6. There is also a privilege to use reasonable force to prevent the commission of a crime. o Must warn first o D is protected by reasonable mistake regarding whether force is necessary o Deadly force reasonable only if reasonably believes that death or serious harm will occur Defenses of Others - a person may use reasonable force to defend another person against attack. Reasonable Mistake o The intervener steps into the shoes of the person he is defending, and is privileged only when that person would be privileged himself. If it turns out that he has intervened to help the aggressor, he is liable. o D is privileged to use reasonable force to defend another even when he is mistaken in his belief that intervention was necessary so long as his mistake was reasonable Recovery of Property deadly force cannot be used to protect or recover property because lifes value out ways the value of the property. o A person may use reasonable force to recover property which is fraudulently obtained from him. o A merchant who reasonably believes an individual has stolen property from his store may detain the individual for a reasonable investigation of the facts: SHOPKEEPERS PRIVILEGE = Must have reasonable belief and conduct a reasonable investigation. May not leave premises.

Necessity Public Necessity - The individual rights of property give way to the higher laws of impending and apparent necessity. An individual who destroys anothers property in good faith and under apparent necessity of preventing further harm, is not personally liable in an action by the owner of the property destroyed. Private Necessity One who damages the property of another as a result of private necessity (defending himself or third party) is liable for damages to that property. o Liable because they made decision to protect own property at risk of anothers property being damaged. o It does not help the public at large and the one who caused damage received a benefit. Authority of Law o An example is arrest. Seizure of one person which must be reasonable and with probable cause or a warrant that is fair on its face. Otherwise it is false arrest. Discipline There are relations where the necessity of some orderly discipline gives persons who have the control of other the privilege of exercising reasonable force and restraint upon them o Examples are parent/child, or teacher/student as long as its not excessive. Justification A reasonable detention imposed to prevent another from inflicting personal injuries or property damage is lawful. II. NEGLIGENCE 14. NEGLIGENCE Negligence Elements o A duty to use reasonable care o A breach of that duty o Causation Cause in fact AND Proximate cause o Actual loss or damage resulting to the interest of another Conduct, which is reasonable and has low probability of resulting in harm to others is not negligent. Negligence is the omission to do something which a reasonable man, guided upon those considerations, which ordinarily regulates the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do. 15. STANDARD OF CARE (REASONABLY PRUDENT PERSON) Vaughan v. Standard of care: this is the objective reasonable person standard to determine if there has been gross negligence.

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Delair v. NUANCE: It is commonly held that the reasonable person will not forget what is actually known, and that forgetfulness does not excuse negligence. But when distracted attention, lapse of time or other similar factors make it reasonable to forget, it can be found that there is no negligence. Trimarco v. formulating the general expectation of society as to how individuals will act in the course of their undertakings, and thus to guide the common cense of expert intuition of a jury of commission when called upon to judge or particular conduct under particular circumstances. what is usually done may be evidence of what ought to be done, but what out to be done is fixed by a standard of reasonable prudence, whether it usually is compiled with or not Courts must in the end say what is required; there are some precautions so imperative that even their universal disregard will not excuse their omission. Even though something may be customarily done it must still be reasonable the jury must be satisfied with the reasonableness of the practice. (Still using reasonable prudent person). Cordas v. NEGLIGENCE: the failure to exercise that care and caution which a reasonable and prudent person ordinarily would exercise under like conditions or circumstances. The circumstances provide the foil by which the act is brought into relief to determine whether it is or is not negligent. (Circumstances help determine the negligence). NUANCE: to qualify as a sudden emergency, the event must be unforeseen, sudden, and unexpected. AKA the duty of care is measured differently in extenuating circumstances. o SUDDEN EMERGENCY DOCTERINE is merely an expression of the reasonably prudent person standard of care. It expresses the notion that the law requires no more from an actor than is reasonable to expect in the event of an emergency. - ***HAS been on the final before Roberts v. In terms of a disabled person their SOC is to operate in the same reasonable and prudent way that another disabled person would act. The SOC applicable to handicapped people is that they must take those precautions that ordinary, reasonable persons would if they were similarly handicapped.

o Must use this objective test because with a subjective test there are no benchmarks. o A person is to proceed with such reasonable caution as a prudent man would have exercised under such circumstances. o We ought rather to adhere to the rule which requires in all cases a regard to caution such as a man of ordinary prudence would observe.

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Robinson v. It would be a monstrous doctrine to hold that a child of inexperience and experience can come only with years should be held to the same degree of care in avoiding danger as a person of mature years and accumulated experience. The care or caution required is according to the capacity of the child, and this is to be determined, ordinarily, by the age of the child. A child is held only to the exercise of such degree of care and discretion as is reasonably to be expected from children of his age. The standard used by a majority of jurisdictions usually is stated to be what is reasonable to expect of children of like age, intelligence and experience. o This means that more may be required of a child of superior intelligence. o After the judge has determined which standard, the jury applies it to the particular set of facts. In this case the child was engaged in an inherently dangerous activity so he will be held to the SOC of an adult. POICY ISSUE: as deterrence; there would be the same amount of damage done if an adult had committed the act. Breunig v. Not all types of insanity vitiate responsibility for a negligence tort. The effect of the mental illness or mental hallucination must be such as to affect the persons ability to understand and appreciate the duty which rests upon such understanding and appreciate the duty which rests upon him to drive his car with ordinary care, or if the insanity does not affect such understanding and appreciation, it must affect his ability to control his car in an ordinarily prudent manner. And in addition, there must be an absence of notice or forewarning to the person that he may be suddenly subject to such a type of insanity or mental illness. POLICY BASIS: of holding a permanently insane person liable for his tort is: o (1) Where one of two innocent persons must suffer a loss it should be borne by the one who occasioned it: o (2) to induce those interested in the estate of the insane person (if he has one) to restrain and control him; and o (3) the fear an insanity defense would lead to false claims of insanity to avoid liability. This is the only exception for insanity in tort law. 16. THE PROFESSIONAL Heath v. The specialist within a profession may be held to a standard of care greater than that required for the general practioner. o Nevertheless, the professional standard remains an objective standard.

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 Basic principle: the reasonable prudent person takes on the profession of the actor and an objective standard is applied. o The standard is expressed in objective form the knowledge, training, and skill of an ordinary member of the profession in good standing. Hodges v. A professional (in this case an attorney) who acts in good faith and in an honest belief that his advice and acts are well founded and in the best interest of his client is not answerable 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 in his State and on which reasonable doubt may be entertained by well-informed lawyers. Conversely, he is answerable in damages for any loss to his client which proximately results from a want of that degree of knowledge and skill ordinarily possessed by others of his profession similarly situated, or from the omission to use reasonable care and diligence, or from the failure to exercise in good faith his best judgment in attending to the litigation committed to his care. Three areas where an attorneys conduct may be questioned: o 1. Possession of knowledge or skill. o 2. Exercise of best judgment o 3. Use of due care Boyce v. Proof that a professional violated the standard of care usually must be established by expert testimony, unless the negligence is so obvious that it is within the common knowledge and experience of lay jurors. Morrison v. In medical malpractice a term referring to ordinary negligence concepts in the area of medical diagnosis, treatment, and the like, the duty of care is generally formulated as that degree of reasonable care and skill expected of members of the medical profession under the same or similar circumstances. 17. RULES OF LAW AND VIOLATION OF STATUTE RULES OF LAW Polora v. Standards of prudent conduct are declared at times by courts, but they are taken over from the facts of life. o The courts are coming up with what SOC of duty they thought was owed. VIOLATION OF STATUTE Osborne v. Where a statute or municipal ordinance imposes upon any person a specific duty for the protection or benefit of others, if he neglects to perform that duty he is liable to those for whose protection or benefit it was imposed for any injuries of the character which the statute or ordinance was designed to prevent, and which were proximately produced by such negligence.

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 There is a two step process to determine if the statute is applicable to the SOC. o 1. Must determine what type of harm the statute was designed to protect against? o 2. What class of people was the statute designed to protect? Ubi ius ibi remedium A. APPLICABILITY OF A STATUTE Stachniewicz v. o A violation of a statute or regulation constitutes negligence as a matter of law when the violation results in injury to a member if the class of persons intended to be protected by the legislation and when the harm is of the kind which the statue or regulation was enacted to prevent. A party seeking to charge the other with violation of the statute is a member of the class the legislature intended to protect. Because state legislative history may be scanty and also difficult to obtain there may be wide latitude for a court to decide who is in the class or what was the hazard that the legislature had in mind. Ney v. o The injury must have a direct and proximate connection with the violation of the statute before liability will be held to exist. It is the existence of this cause and effect relationship which makes the negligence of the defendant actionable. o If at the time of the negligence, the criminal act might reasonably have been foreseen, the causal chain is not broken by the intervention of such act. o THIS CASE WAS HERE TO ILLUSTRATE how to determine what kind of harm the statute was trying to prevent. B. EFFECT OF STATUTE Martin v. o When a statute applies to the facts, an unexcused violation is negligence per se which must be declared by the court and not left to the jury. o Effect of statute once you find a statute applicable what affect does it have on the case. Zeni v. o What effect to give to the violation of a statute into three groups (A C): o A. Violation of statute as rebuttable presumption: The excuses may not necessarily be applicable in a criminal action, since, in the absence of legislatively-mandated civil penalties, acceptance of the criminal statute itself as a standard of care in a civil action is purely discretionary.

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o o o o o

Liability without fault is not truly negligence, and in the absence of a clear legislative mandate to so extend liability, the courts should be hesitant to do so on their own. B. Violation of statute as negligence per se: C. Violation of statute as evidence of negligence: D. Application of statutory standard to this case: (1) An excused violation of a legislative enactment or an administrative regulation is not negligence (2) Unless the enactment or regulation is construed not to permit such excuse, its violation is excused when: (a) the violation is reasonable because of the actors incapacity; (b) he neither knows not should know of the occasion for compliance; (c) he is unable after reasonable diligence or care to comply; (d) he is confronted by an emergency not due to his own misconduct; (e) compliance would involve a greater risk of harm to the actor or to others.

18. PROOF OF NEGLIGENCE: CIRCUMSTANTIAL EVIDENCE A. COURT & JURY: CIRCUMSTANTIAL EVIDENCE Goddard v. Evidence proves a fact and from that you might logically and reasonably establish that another fact exists. Anjou v. The object that caused the harm, based on its condition, shows that the employee should have been on notice of its existence and cleaned it up. Joye v Here there was not sufficient evidence to show that the defendant could have been on notice of the dangerous condition. Jasko v. The basic notice requirement springs from the thought that a dangerous condition, when it occurs, is somewhat out of the ordinary. In this case however, the operating methods of a proprietor are such that dangerous conditions are continuous or easily foreseeable, the logical basis for the notice requirement dissolves. Because the situation is dangerous and they should know that already because they created it. Side notes on notice: 1. If it just happened no notice. 2. It happened a while back notice. 3. Cant tell if it just happened or not &/or no one told you no notice. 4. Accident is foreseeable? Then you were already on notice the circumstantial evidence does not have to be evaluated.

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B. RES IPSA LOQUITUR Means that the thing speaks for itself Byrne v. This is an instance of res ipsa loquitur, here the mere fact of the accident having occurred is evidence of negligence. Larson v. The court sets forth the test for applicability of the doctrine for a plaintiff to make out a case entitling him to the benefit of the doctrine he must prove: o (1) That there was an accident o (2) That the thing of instrumentality which caused the accident was at the time of and prior thereto under the exclusive control and management of the defendant o (3) that the accident was such that in the ordinary course of events, the defendant using ordinary care, the accident would not have happened The doctrine of res ipsa loquitur applies only where the cause of the injury is shown to be under the exclusive control and management of the defendant and can have no application. Plaintiff must fail, if the evidence does not show that the injury was the result of the former cause, or leaves it as probable that it was caused by one of the other. There is a general agreement that the fact that an automobile leaves the travelled portion of the highway and overturns, or crashes into a stationary object, is enough, in the absence of explanation, to make out a res ipsa loquitur case against the driver. In this case there was not a case for res ispa loquitur because there was no way the hotel could have had exclusive control of the furniture in each room. Ybarra v. 20. CAUSATION IN FACT PROOF OF CAUSATION Reynolds v. Where the negligence of the defendant greatly multiplies the chances of accident to the plaintiff, and is of a character naturally leading to its occurrence, the mere possibility that it might have happened without the negligence is not sufficient to break the chain of cause and effect between the negligence and the injury. Kramer v. It is not enough that negligence of one person and injury to another coexisted, but the injury must have been caused by the negligence. Post hoc ergo propter hoc is not sound as evidence or argument. Nor is it sufficient for a plaintiff, seeking recovery for alleged negligence by another toward the plaintiff, to show a possibility that the injury complained of was caused by negligence. Possibilities will not sustain a verdict. There must be a better foundation. 16

CONCURRENT CAUSES Hill v. Where separate acts of negligence combine to produce directly a single injury each tortfeasor is responsible for the entire result, even though his act alone might not have caused it. o This was a concurrent cause because the plaintiff and the defendant contributed to the accident. Summer v. It has been held that where a group of persons are on a hunting party, or otherwise engaged in the use of firearms, and two of them are negligent in firing in the direction of a third person who is injured thereby, both of those so firing are liable for the injury suffered by the third person, although the negligence of only one of them could have caused the injury. They are both wrongdoers both negligent towards the plaintiff. The same reasons of policy and justice shift the burden to each of the defendants to absolve himself if he can - relieving the wronged person of the duty of apportioning the injury to a particular defendant, apply here where we are concerned with whether plaintiff is required to supply evidence for the apportionment of damages. o They shift the burden to the defendants so they have to prove that it was not them. Sindell v. This court held that: o (1) Summer v. did not apply because not all the defendants were before the court, and o (2) there was no concert of action among the defendants. The cost of an injury and the loss of time or health may be an overwhelming misfortune to the person injured, and a needless one, for the risk of injury can be insured by the manufacturer and distributed among the public as a cost of doing business. A defendant may be held liable for a somewhat different percentage of the damages then its share of the appropriate market would justify. 22. PROXIMATE OR LEGAL CAUSE: Limitation of Liability Atlantic v. proximate and natural have come into use as setting the limits beyond which the courts will not look in the attempt to trace the connection between a given cause and a given effect. reductio ad absurdum may be promptly established by calling to mind that, if the injured person had never been born, the injury would not have happened. Cause in fact: the case and effect relationship between the defendants tortious conduct and the plaintiffs injury or loss. o Deals with the but for consequences of an act. The defendants conduct is a cause of the event if the event would not have occurred but for that conduct.

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o Uses either the but for test (only one actor) or the substantial factor test (more than one actor). Proximate cause: concern a determination of whether legal liability should be imposed where cause in fact has been established. o Proximate or legal cause is a policy decision made by the legislature or the courts to deny liability for otherwise actionable conduct based on consideration of logic, common sense, policy, precedent and our more less inadequately expressed ideas of what justice demands or of what is administered possible and convenient. o Factors: Natural Foreseeable Ordinary and natural Remoteness Ryan v. General principle that every person is liable for the consequences of his own acts. He is thus liable in damages for the proximate results of his own acts, but not for remote damages. Policy language: to sustain such a claim as the present, and to follow the same to its legitimate consequences, would subject to a liability against which no prudence could guard. Bartolone v. (used on a previous test) Egg shell rule: a defendant must take a plaintiff as he finds them and hence may be liable for aggravation of a pre-existing illness. Nor may defendants avail themselves of the argument that plaintiff should be denied recovery because his condition might have occurred even without the accident. This doctrine applies only to the proximate cause issue, NOT to the determination of negligence or strict liability. In re Arbitration Between Polemis and Furness, Withy & Co., Ltd. Once the act is negligent, the fact that its exact operation was not foreseen is immaterial. Consequences which follow in unbroken sequence, without an intervening efficient cause, from the original negligent act are natural and proximate. 23. INTERVENING CAUSES AND RESCUERS: Derdiarian v. Where the acts of a third person intervene between the defendants conduct and the plaintiffs injury, the casual connection is not automatically severed. In such a case the liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendants negligence. If the intervening act is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendants conduct, it may well be a superseding act which breaks the casual nexus.

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When a superseding event occurs the courts have decided that the courts should cut off liability. o A person is not responsible for extraordinarily negligent intervening acts of third persons. o A plaintiffs own conduct can constitute an intervening cause that breaks the casual connection between defendants negligence and the injury. However, in order to be a superseding cause, a plaintiffs conduct must be more then contributory negligence that would be relevant in apportioning negligent conduct. Watson v. The mere fact that the concurrent cause or intervening act was unforeseen will not relieve the defendant guilty of the primary negligence from liability, but if the intervening agency is something so unexpected or extraordinary as that he could not or ought not to have anticipated it, he will not be liable, and certainly he is not bound to anticipate the criminal acts of others by which damage is inflicted and hence is not liable therefore. It is probably impossible to state any comprehensive rule as to when a defendant will be liable for the intervening criminal act of a third person. Criminal conduct will break a casual chain unless the duty imposed is to prevent a criminal act. Unforeseeable, extraordinary, malicious, criminal conduct will break the casual chain. Fuller v. A jury to sustain a finding of negligence must be presented with sufficient evidence to conclude that the person was injured by defendant's negligence. Precedent of long standing establishes that public policy permits negligent tort-feasors to be held liable for the suicide of persons who, as the result of their negligence, suffer mental disturbance destroying the will to survive. An act of suicide, as a matter of law, is not a superseding cause in negligence law precluding liability. In deciding in a wrongful death case whether an accident was the proximate cause for a suicide, the only authentic issue is whether the suicide was an "irresistible impulse" caused by the accident. An issue for a jury is whether a defendant's negligence substantially contributes to a plaintiff's death. A jury does not have to find that this is the only cause. Often, there is not a sole cause for suicide. McCoy v. The rescue doctrine is invoked in tort cases for a variety of purposes in a variety of scenarios. The doctrine, as here asserted, allows an injured rescuer to sue the party which caused the danger requiring the rescue in the first place. To achieve rescuer status one must demonstrate: (1) the defendant was negligent to the person rescued and such negligence caused the peril or appearance of peril to the person rescued; (2) the peril or appearance of peril was imminent; (3) a reasonably prudent person would have concluded such 19

peril or appearance of peril existed; and (4) the rescuer acted with reasonable care in effectuating the rescue. A rescuer must show the defendant proximately caused his injuries is in keeping with general principles of liability. For the original defendant's wrongdoing to be the cause in fact of plaintiff's injuries, the original negligence of the defendant, which placed him in his present imperiled predicament, must be an active factor in the course of events which ultimately culminates in injury to the plaintiff. The defendant's actions are the cause in fact of plaintiff's injuries if the defendant's wrongdoing produced the injuries complained of and any intervening cause was reasonably foreseeable. If, on the other hand, the intervening cause was unforeseeable then it will break the causal connection between the defendant's negligence and the plaintiff's injury and negate a finding of cause in fact. 24. PUBLIC POLICY Kelly v. In most cases the justice of imposing a duty is so clear that the cause of action in negligence is assumed to exist simply on the basis of the actor's creation of an unreasonable risk of foreseeable harm resulting in injury. However, more is needed, more being the value judgment, based on an analysis of public policy, that the actor owed the injured party a duty of reasonable care. Whether a duty exists is ultimately a question of fairness. The inquiry involves a weighing of the relationship of the parties, the nature of the risk, and the public interest in the proposed solution. Whatever the motive behind making alcohol available to those who will subsequently drive, the provider has a duty to the public not to create foreseeable, unreasonable risks by this activity. A host who serves liquor to an adult social guest, knowing both that the guest is intoxicated and will thereafter be operating a motor vehicle, is liable for injuries inflicted on a third party as a result of the negligent operation of a motor vehicle by the adult guest when such negligence is caused by the intoxication. Enright v. It is the court's duty to confine liability within manageable limits. 25. CONTRIBUTORY NEGLIGENCE Butterfield v. This case developed the rule of contributory negligence. o As long as the defendant's act was not "reckless or wanton," recovery is completely barred, even in cases of extreme negligence, where the plaintiff does not exercise ordinary care for their own safety. Under contributory negligence, the plaintiff gets $0. Later on, this rule was modified so that the plaintiff could get some (although not 100%) recovery, even if they did not exercise ordinary

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care. o Awarding percentages of damage based on comparative fault is known as comparative negligence. 26. COMPARATIVE FAULT (Comparative Negligence) McIntyre v. There are two basic forms of comparative fault which are referred to as either "pure" or "modified." In the "pure" form, a plaintiff's damages are reduced in proportion to the percentage negligence attributed to him; for example, a plaintiff responsible for 90 percent of the negligence that caused his injuries nevertheless may recover 10 percent of his damages. In the "modified" form, plaintiffs recover as in pure jurisdictions, but only if the plaintiff's negligence either (1) does not exceed ("50 percent" jurisdictions) or (2) is less than ("49 percent" jurisdictions) the defendant's negligence. The Supreme Court of Tennessee rejects the pure form of comparative fault and adopts a system of modified comparative fault, the "49 percent rule." So long as a plaintiff's negligence remains less than the defendant's negligence the plaintiff may recover; in such a case, the plaintiff's damages are to be reduced in proportion to the percentage of the total negligence attributable to the plaintiff. The adoption of the comparative negligence system in Tennessee makes the doctrines of remote contributory negligence and last clear chance obsolete. In cases of multiple tortfeasors, plaintiff will be entitled to recover so long as plaintiff's fault is less than the combined fault of all tortfeasors. Also, the doctrine of joint and several liability is rendered obsolete. 27. ASSUMPTION OF RISK Implied Rush v. Assumption of risk is not a defense in LA Implied assumption of the risk is applicable only when a plaintiff voluntarily encounters a known risk. Assumption of the risk requires actual knowledge of a particular risk, appreciation of its magnitude and voluntarily encountering the risk.

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