Torts I Outline Bauman

General Notes:
Tort o A civil wrong, other than a breach of contract, for which the law provides a legal remedy  Legal remedy= monetary damages  Law designed to give compensation to parties that suffered on the hands of others Tort Law represents the problem of harm between two relative strangers. Goal of Tort System o Make people think about what they are doing before they do it

Procedural Steps for a typical Tort Case - See notes 3 Types of Torts: - Intentionally caused harm - Negligence o Harm caused by a lack of due care - Strict liability o Does not require any fault to be placed on the defendant Liability based on fault - Fault based system of Tort Liability o Harm that is intentionally caused o Harm that is caused as a result of carelessness (negligence)

Outline
I. II. III. IV. V. VI. VII. VIII. IX. X. Intentional Torts Defenses to Intentional Torts Negligence Negligence (Odds and Ends) Multiple Tortfeasors Defenses to Negligence Limited Duty Premises Liability Damages for Personal Injuries Wrongful Death
FITTED CAB 1

I. Intentional Torts


o False imprisonment, Trespass to chattels, Trespass to land, (Intentional Infliction) Emotional Distress, Conversion, Assault, and Battery Intent o What is the meaning of the intent necessary for an intentional tort?  Intent as purpose or desire to accomplish a particular result.  Knowledge that a result is substantially certain to occur o No intent, then it is negligent and you cannot be intentionally negligent!!! o Requires an affirmative action that at its undertaking had an intent to harm or cause offensive contact (Shaw- Second Hand Smoking Case) Intentional acts are: o A voluntary act with the intent to cause a specific action o Act has to be a voluntary muscular contraction  Ex. Sudden fainting not an intentional act o Might not have actual intent, but substantial certainty of result is sufficient to consider the act intentional (Dailey-Child Moving Chair Case) Transferred Intent o Intent can transfer from person to person, as where A intends to hit B, misses, and hits C by Mistake. o Intent can transfer from tort to tort, at least in some circumstances. Compare the intent element of Battery with the intent Elements of Assault. o Hypo: Someone is in an extremely crowded room and purposely fires a gun, substantially certain that the bullet fired will strike someone o Doctrine applies to FIT BAT  False imprisonment, Trespass to chattels, Trespass to land, Battery and Assault o Ex. Gun was pointed at woman, but her niece experienced the fear that the gun would eventually be pointed at her (Wachovia- Repoman Case)  Intent transferred from the woman to her niece

1. Battery
The intentional tort which protects a persons interest in freedom from unwanted bodily contact Unexcused and harmful or offensive physical contact intentionally performed

The Elements of Battery  An actor commits battery if he acts intending o to cause a harmful or offensive contact OR o to cause imminent apprehension of such contact AND  Harmful or offensive contact actually results The meaning of Contact - Contact with Ps body or something closely connected to it. - Lack of consent to contact is often the key to offensiveness. Determining liability for Battery o Are all elements present? o Was there consent? o Was the contact privileged?  Ex. Police offer

Examples: - Man carrying a lunch tray has it snatched up in an offensive manner (Fisher-Plate Touching Case) - Bumping in to someone in the hall is not a battery - Two boys on the playground and one playfully kicks the other in the shin, not knowing that the boy had a wound under his jeans. The kick caused the wound to open and became infected. Considered battery by the court - A punches at B but instead hits C o Battery due to transferred intent Defenses (See II. Defenses) a. Consent b. Self-defense c. Defense of Others d. Defense of Property

2. Assault
The intentional, unexcused act that creates in another person a reasonable apprehension of immediate harmful or offensive contact

Elements of Assault  An actor commits assault if he acts intending o to cause a harmful or offensive contact OR o to cause imminent apprehension of such contact AND  The actor has the apparent present ability to inflict the contact, AND  Apprehension of harmful or offensive contact actually results. What does apprehension mean? - They wanted to steer clear of using the word fear, but mean to say that a person anticipates a harmful or offensive act. Examples: - Pointing a gun at someone is assault - A man comes up from behind you with a gun pointed at you, but you never see him. This is not an assault because you never saw him and therefore have no apprehension of the battery. Must have all elements for it to be an assault. - Words alone are not enough to constitute an assault unless they are a case like the man causing another to jump off cliff because he told him there was a rattlesnake on his foot. - If someone says he is not scared of a certain action, this does not wipe out his cause of action for assault. (Apprehension is not the same as fear in the law) - If it is a conditioned statement then it is not an assault ( if you do that again, then I will hit you) = no assault due to no immediate apprehension - You are a big guy and a little girl comes up to you with a couch cushion to hit you. Not assault because apprehension must be reasonable. Defenses (See II. Defenses) a. Consent b. Self-defense 3

c. Defense of Others d. Defense of Property

3. False Imprisonment
Protects an individuals rights to move freely from place to place as he/she sees fit. The direct constraint by one person of another against their will, without legal justification

Elements of False Imprisonment  An actor commits false imprisonment when 1. He acts 2. Intending to confine the plaintiff 3. Plaintiff is in fact completely confined 4. Plaintiff is aware of the confinement or suffers actual injury from the confinement. Meaning of Confinement  Confinement means that P is effectively restrained from movement in any direction. o Confinement can be achieved by:  Physical barriers  Threats of physical force  Confiscation of important possessions that practically prevent plaintiff from leaving (e.g., clothing, car keys.)  Plaintiff is not confined if a practicable exit (one not involving great danger) is available. Examples: - Confine the wrong person on accident o Mistake is no defense - FI can be in a state, country, etc - If there are other reasonable ways out then no FI o Person does not have to take unreasonable or dangerous risks to get out - One must know that they are being confined to constitute FI o Exceptions to this are children and adults that have been injured - Shopkeepers Rule o As shoplifting increases we see that the law allows store owners to hold those who they have reason to believe have stolen  Can hold them for a reasonable amount of time and must use a reasonable method to do this - Holding one aboard a ship and not letting them use a boat to go ashore is considered FI o Denial of only means out is sufficient - Must actually ask or express your intention to leave, you cannot assume that you cant (Teichmiller- Supervisor Confinement Case) - P. has burden of showing confinement Defenses (See II. Defenses) a. Consent b. Self-defense c. Defense of Others d. Defense of Property 4

e. Shopkeepers rule f. Justification o Ex. Lawful arrest- necessity to hold the person g. Lack of protest o Kind of like an implied consent

. Trespass to Land
Intentional torts also can protect a plaintiffs property interests Person, without permission, enters onto, above or below the surface of land that is owned by another; causes anything to enter onto the land; or remains or permits anything to remain on the land after being told to leave

One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest to the other, if he intentionally: a) Enters land in the possession of the other, or causes a thing or third person to do so, or b) Remains on the land, or c) Fails to remove from the land a thing which he is under a duty to remove. Trespass to land The Traditional View  An Actor commits trespass to land when he intentionally enters or causes an entry onto the land of another.  Entry can be made above or below the surface of the land.  Actual harm to the land is not required. (the original writ of trespass was designed to vindicate owners exclusive possession of land) Trespass to Land: Modern Approaches  Trespass interferes with the owners right to exclusive possession.  Trespass can occur by means of a physical invasion of microscopic particles if the result is an interference with the right of exclusive possession.  When the invasion involves microscopic particles, the plaintiff must show actual damage to the property. Examples: - Every unauthorized and therefore unlawful entry into anothers land is considered trespass. - Interference with the use and enjoyment of the land owners land - MISTAKE IS NO DEFENSE TO TRESPASS - Negligent trespass can only happen if the trespasser does not intend to enter the land o Ex. Ones car is out of control and it swerves into anothers property. In negligent trespass one must show actual damage to have cause of action. - Nominal damages awarded if you prove your cause of action but there are no damages to your land. - If one enters anothers land for an extended period of time with no contest by the owner, one can eventually gain the right to enter the land. - Trespass- interferes with the possession of the land o Nuisance- interferes with the use and enjoyment of the land. o Can bring both actions in one case - The airspace above the immediate reaches of the land is public domain (Eastern Airlines case) o Extent to what the landowner can make practical use of the space 5

It is trespass if one stays on anothers land longer than the owner has consented them to do so. To recover damages under trespass when dealing with gaseous particles the owner must show actual and substantial damages to his land. (Smelting Co.- Particle Matter Trespass Case) Must be a tangible invasion o Ex. Light does not constitute a trespass to land because it is not tangible

Defenses a. Consent from the person who is in lawful possession of the land b. D. enters the land to reclaim his own property that was on P. land c. Necessity - Private Necessity - Public Necessity d. Entry to abate public or private nuisance

5. Trespass to Chattels
Chattel o Movable or transferable property  Taking away of or damage to personal property.  Usually Trespass to Chattels is used when the interference or damage is not serious enough to amount to conversion.  Actual damage to or loss of use of chattel required.  Damages: value of loss of use or cost of damage to the chattel. Using or intermeddling with another persons chattel o Dispossess (I dont have it anymore) the other of his chattel o Chattel is impaired o Possessor is deprive of use of substantial time o Bodily harm is thereby caused to a person in which S has a legally protected interest

Examples: - A chattel is any object that is not real estate or an improvement to real estate. Something that is removable - Taking away of or damage to tangible personal property - Can interfere even if you are not physically interfering with the chattel (CompuServe- Junk Email Case) - Not as serious as conversion - No interference= no claim Substantial interference= trespass to chattels Denying owner of chattel for substantial time= conversion Defenses (See II. Defenses) a. Consent b. Self-defense c. Defense of Others d. Defense of Property e. Necessity

6. Conversion
Intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay for the full value of it. Conversion is used when a defendant completely dispossesses the plaintiff of and interest in personal property. Two important wrinkles to this rule  A defendant need not physically damage a plaintiffs property to convert it.  Courts historically have allowed a plaintiff to recover the full value of the converted property, even if the defendant has not damaged the property. Entitled to recover full value of chattel at time of conversion. Applies only to tangible personal property.     Conversion is the wrongful exercise of dominion over the personal property of another. Dominion includes taking, substantial use, altering, destroying, selling, and buying. This tort only applies to tangible personal property. Damages: D must pay P the full value of the property at the time of conversion.

Ways to convert a chattel:  stealing it  damaging it/altering it  using it  receiving it (buying it from a thief)  disposing of it (selling it)  misdelivering it (chattel is then lost)  refusing to surrender the chattel Multiple Factors Test - Restatement: determining so seriously interferes as to... (Case by case basis)  The extent and duration of the actors exercise of dominion or control  The actors intent to assert a right in fact inconsistent with the others right of control  The actors good faith  The extent and duration of the resulting interference with the others right of control  The harm done to the chattel  The inconvenience and expense caused to the other. Examples: - If you buy something from a thief, then you are a converter - Mistake of authority does not dispose of liability (Wiseman- Towed Truck Case) - Actor may be liable where he has in fact exercised dominion or control, although he might be quite unaware of the existence of the rights with which he interferes Defenses a. Consent of the owner of the property the D. is converting b. Necessity - Private - Public

7. Intentional Infliction of Emotional Distress

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One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

 An actor commits this intentional tort when: o The actor engages in extreme and outrageous conduct; o Intending to cause extreme emotional distress, or with recklessness regarding the infliction of such distress; and o Severe emotional distress results. Outrageous!  Outrageous conduct can include: o Harassment of a vulnerable individual; o Abuse of a position of power; o Mistreatment of dead bodies  Mere insult is NOT outrageous conduct. No Transferred Intent - No transferred intent; D. must be at least reckless with regard to the infliction of emotional distress on bystanders - This usually requires, in the case of bystanders, that the D. at least be aware of the likelihood of inflicting the emotional distress on the victim Examples: - Subjective test- depends on the life of a certain person, used on a case by case basis - Casual connection between wrongful conduct and emotional distress - Transferred intent does not work for Emotional Distress - Severity measured by intensity and duration of emotional distress (Caldor- Boy/Employee Theft Case) - If you take advantage of someones vulnerability the courts will be harder on you - If you abuse your position of power (ex. Doctor/Patient) the courts will be harder on you - Feeling bad and being embarrassed are not sufficient (Caldor- Boy/Employee Theft Case) Defenses - D. lack of knowledge that the P. was present at the time - D. lack of knowledge of the P. unusual susceptibility to emotional upset - D. needs to be aware of the likelihood of inflicting the emotional distress on victim, especially if victim is just a bystander

II. Defenses to Intentional Torts

Just because a plaintiff establishes a prima facie case, they are not automatically entitled to compensation. o Defendants can justify their actions through a series of various defenses. D. has burden of proof when presenting a defense

1. Consent
Can be verbal or non-verbal, which must be considered in connection with surrounding circumstances 8

 An objective manifestation of consent forecloses a claim that might otherwise exist.  Consent may be shown by conduct.  Consent bars recovery if there is consent to the act done, even though there is no consent to the resulting injury.  A consent obtained by fraud or concealment of important information is not effective.  The scope of the consent is important; if the actor goes beyond what was agreed to, the consent will not bar recovery. Consent to Contact in Sports  By participation in a sporting contest, one consents to the contacts normally a part of the game.  The limits of this consent are important; does every contact that is outside the rules result in battery?  On the other hand, is consent to normal illegal contact also presumed?  What, then about hockey? Consent to a Criminal Act  Per the restatement, consent to a criminal act is effective and bars recovery for injuries received from the act. o The important exception is where the criminal statute is designed to protect the class of persons to which the plaintiff belongs. o Allowing consent as a defense would tend to frustrate the purpose of the criminal statute.  Three most important examples: o Statutory rape  People under age are not deemed capable to give consent o Illegal prize fights o Voluntary euthanasia Examples: - Express o One actually says they consent to a certain action - Implied o By ones action they consent to the action o Ex. Person holds out there arm to get a shot - Person consenting must know what they are consenting to - Fraudulent consent is not consent at all o Ex. Doctor brought his friend to the delivery of a baby and husband and wife thought the friend was an assistance - In medical field, if it is a life threatening emergency, and patient is unconscious, we hold that the patient would give consent in an ordinary situation - If a women consents to surgery on her right ear but the surgery is done on the left ear, there was no consent - Person must have sufficient mental capacity to consent (Peterson- Pseudo-Religious Girl Confinement) o Minors, intoxicated persons, and the mentally disabled cannot effectively consent - Just because you play in a violent game like football, some conduct can go beyond the normal consented to contacts of the game (Hackbart- Cheap Shot Case) 9

D. has burden of affirmative defenses

2. Self Defense
An actor is privileged to use reasonable force, not intended or likely to cause death or serious bodily harm, to defend himself against unprivileged harmful or offensive contact or other bodily harm which he reasonably believes that another is about to inflict intentionally upon him.

 Self Defense is based on the reasonable appearance of need for defense.  The actor is limited to only the amount of force needed to repel the attack.  Excessive force results in loss of the privilege. Examples: 1) Existence of privilege a. Anyone is privileged to use reasonable force to defend himself against a threatened battery 2) Retaliation a. Once the battery terminates the privilege of self defense also terminated i. The self-defense must be an immediate reaction to the threat; one cannot wait 30 min. and then claim they were using self-defense b. Even if a person initially was an aggressor, once he has retreated he has a right to self defense against the person he initially threatened 3) Reasonable belief a. Privilege exists when the def reasonably believes that the force is necessary to protect himself against battery even though there is in fact no necessity 4) Provocation a. Insults, verbal threats, or opprobrious language do NOT justify the exercise of selfdefense b. If the words are accompanied by an actual threat of physical violence reasonable warranting an apprehension of imminent bodily harm then you may exercise selfdefense 5) Amount of force a. Privilege is limited to the use of force that is or reasonable appears to be necessary for protection against a threatened battery. Differences in age, size an relative strength are proper considerations b. To justify resistance with a deadly weapon, the D. must have a reasonable apprehension of loss of life or great bodily injury c. The D. has the burden of proof that the use of force was reasonable under the circumstances. Some jurisdictions shift the burden to the P. if the D. is a police 6) Retreat a. He may stand his ground and use any force short of that likely to cause serious injury if there is the slightest doubt that he can safely retreat. b. Common law says that rather than kill his assailant or seriously wound him the D. must retreat to the wall 7) Injury to a third party a. If he is defending himself and accidentally hurts a third party then he is NOT liable to the 3rd unless there is some negligence to the 3rd.

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3. Defense of Others
 A privilege similar to that of self defense arises for the defense of others.  The same limitations on the use of force apply.  The actor must reasonably believe that the other is being attacked and would have the privilege of self defense.  The actor must reasonably believe that intervention is necessary to protect the other.

4. Defense of Property
A person may use reasonable force to protect property when she reasonably believes that force is necessary to prevent the intrusion.

 Ones privilege to defend ones property is more limited than the privilege to defend oneself. For example, one usually must ask a trespasser to leave before using force.  Deadly force is not permitted simply to protect property (In other words, when there is not threat to human life).  However, one can threaten more force than can actually be used.  Recapture of chattels requires hot pursuit. (has to be immediate response) Examples: - If the person intervening is mistaken in his belief that intervention is necessary, he is not liable so long as his mistake was reasonable - There is no privilege to use any force calculated to cause death or serious bodily injury to repel the threat to land or chattel (Briney- Spring Gun Defense Case) - Time limit to this defense o Must be in hot pursuit

5. Necessity
a. Private Necessity
Provides D. with a qualified privilege to interfere with property to protect their own interests, or those of a small group of others Private Necessity is a qualified privilege. Private Necessity permits entry on land of another to protect oneself from imminent peril. The actor is not liable for trespass and the owner has no privilege to eject him. The actor is liable for any actual damages caused by his entry.

   

Examples: - Boater needs to dock his boat at a private dock because of a storm (Putnam- Boat Docking Necessity Case) - Steamship moors to unload cargo. Storm comes and keeps the ship from leaving the dock. Storm causes ship to damage the dock. Ship had private necessity to stay at dock but it is responsible for the damage that was done (Vincent- Dock Damage Case)

b. Public Necessity
Provides defendants with an absolute privilege to interfere with the property of others to avoid a public disaster. 11

 Public Necessity is an absolute privilege.  One is privileged to commit trespass to land, trespass to chattels, or conversion, where the action reasonably appears necessary to prevent a public disaster.  When the privilege applies, the actor is not liable for actual harm caused in the course of preventing the public disaster. Examples: - Must be done in good faith and must be apparent - Tearing down a persons house to keep the fire from spreading and destroying all of the buildings in the city - U.S. Army destroys oil depots to stop Japs from using them (Caltex- Army Demolition Case)

III. Negligence
1) 2) 3) 4) Negligence is behavior that requires less than intent, but is deemed blameworthy because a jury finds that the D. behavior falls below a defined standard of care To succeed in a negligence action, a P. must prove the following elements Duty Breach of Duty Causation Damages

Negligence: The Prima Facie Case  DUTY: Usually a Duty of Due Care  BREACH: Defendants conduct does not meet the standard of Due Care.  CAUSATION: o Actual Cause (or Cause in Fact). o Legal Cause (or Proximate Cause).  Damages: Actual Damages required.

1. Duty
-

A person must behave as a reasonably prudent person under the same or similar circumstances In general, a duty exits if the defendants conduct foresee ably creates unreasonable risks of harm.

A. Standard of Care and Circumstances

1. Reasonably Prudent Person The Duty of Due Care  Tort duties arise out of a relationship between P and D that imposes on the latter a duty of due care.  This duty requires D to recognize and avoid unreasonable risks of harm to P.  The risks in question are those that a reasonably prudent person (RPP) would recognize as unreasonable.  Once recognized, D must exercise the care that the RPP would exercise to eliminate or 12

reduce the risk. The Standard of Care  Defendant is held to the standard of the reasonably prudent person under all the circumstances.  The amount of care that defendant is expected to exercise varies depending on the circumstances. Under All the Circumstances  Some circumstances are external to the Actor: o The extent to which the risk is reasonably foreseeable. o The existence of an emergency.  Some circumstances are found in the actors own characteristics. o Physical limitations of the actor. o Mental limitations on the actor. 2. Minor - In most cases, children are not held to the standard of care of an adult The Circumstances of the Actor  Age: In most case, children are not held to the standard of care of an adult.  The standard is that of a child of the same age, intelligence and experience.  The child standard usually applies to both child victims and child tortfeasors.  Exception: The adult standard applies when the child is engaged in an adult activity. Adult activities almost always involve an internal combustion engine. 3. Elderly - The weakness of age is treated merely as part of the circumstances under which a reasonable person must act.  Age: It is not presumed that the elderly are unable to conform to the standard of care.  It may be proved, however, that an elderly person was physically incapable of exercising due care, due to the infirmities of age. 4. Physical Disabilities  Physical Disabilities are usually taken into account as part of the circumstances faced by the actor.  The actor must take the disability into account.  Where disability or illness strikes without warning, the actor is not negligent for failing to take precautions against it. 5. Mental Disabilities Mental Disabilities: Insanity and Alzheimers Disease  General Rule: Insane persons are liable for their torts, unless incapable of a particular state of mind, such as malice, required by some torts.  Limited Exceptions exist: o Sudden onset of mental disability 13

o Where the plaintiff has accepted the risk As a general rule, the insane are not excused from their torts or their negligence. However, a sudden mental disability for which a person did not have warning may excuse a person from what would have been a violation of the SOC and therefore, negligence. If the person is on notice of the occurrence of mental illness, then he is liable. THREE POLICY REASONS WHY INSANE ARE LIABLE FOR TORTS: (1) Where 2 innocent people must suffer loss, it should be burdened to the one who caused the accident. (2) To induce those interested in the estate of the insane person to restrain & control him. (3) A fear that insanity defense would lead to false claims of insanity to avoid liability.

6. Drunkenness, Blackouts, Seizures, and Sudden Mental Illness  An individual who voluntarily becomes intoxicated is still held to the standard of the reasonable prudent person.  Thus, the actor can be held liable even if incapable of conforming to the standard because of intoxication.  On the other hand, the actor is not negligent simply because intoxicated; the actors conduct must actually breach the standard.

B. Standard of Care and Custom

1. Custom - One tool that courts allow juries to use in determining the reasonableness of the plaintiff actors behavior is to refer the jury to the custom of actors similarly situated.  If it is typically done, it is reasonable to do it  If it is typically not done, it is not reasonable to do it Custom  Is the usual way of doing things the measure of due care?  Failure to Comply with Custom: is evidence of failure to follow custom sufficient to establish a prima facie case of negligence for the plaintiff?  May the trier of fact ignore compliance with custom and find the defendant negligent? 2. Professional Standard of Care Professional Standard of Care - Jury doesnt know what the standard of care is - P. has to prove what the standard of care is in a particular situation Custom and Malpractice  The Standard of care imposed on professionals (doctors, lawyers, engineers) is a special example of the use of custom to establish the standard of care.  The Standard is the degree of care and skill ordinarily possessed by members of the profession. o P. has the burden of proof to show standard of care o Prove the practitioner violated standard of care 14

o Because of that error, the victim was injured (causation)  If the professional claims special skill or knowledge, the higher standard of the specialist will apply. 3. Locality Rule - Rule states that one is held to the SOC of the practioners in your local area - No longer applied in most jurisdictions - With new technology and meetings, professionals will have similar standard of care that is a national standard The Professional Standard of Care  The Locality Rule is no longer applied in most jurisdictions.  How does the plaintiff establish the standard of care?  What affect did the Locality Rule have on the ability of the plaintiff to prove the standard of care? The General Practitioner  Is any accommodation made for the small rural practitioner with limited resources? How does the standard take these circumstances into account? o Material circumstances can be taken into account  What is the obligation of the general practitioner when faced with a particularly difficult case? o Might not have a specialty in every situation  However you can know when you are in over your head  Courts rarely substitute their own judgment of what the standard of care should be. 4. Informed Consent Informed Consent  A physician seeking a patients consent to treatment has a duty to inform the patient of the risks and benefits of the procedure.  The physician must disclose material risks: Risks that a reasonable person in the plaintiffs position would want to know before deciding whether of not to undergo the procedure. Informed Consent: Liability  The physicians failure to inform the patient of a material risk is a breach of duty.  Liability also required the plaintiff to prove causation by showing that if properly informed, the plaintiff would have refused to undergo the procedure.  Liability also requires that the risk not disclosed be the cause of harm to the patient. Informed Consent: Exceptions  The defendant bears the burden of proving exceptions to the requirement of disclosure.  The first exception is the emergency where the patient is unable to give consent and lifesaving treatment must be given at once.  The second exception is where the disclosure itself would be harmful to the patient.

2. Breach of Duty
Calculus of Risk  If the probability of injury multiplied by the extent of the expected injury is less than the 15

cost to the actor to prevent the conduct then the actor is responsible any injuries resulting. Reasonable Risks  Risk of harm low, benefits significant  Risk of harm low because danger is obvious (P can easily avoid the danger)  Risk of harm high, but benefits outweigh the danger Unreasonable Risks  Risks are unreasonable when the risk of harm is high, and the benefits from the activity are low.  FORMULA: An attempt to express this notion can be found in the risk utility balance of United States v. Carroll Towing Co. Carroll Towing: The Hand Formula  The Hand Formula states that a party is negligent when B<PL o B is the Burden of taking precautions o P is the probability of harm occurring o L is the severity of harm if it occurs.  The formula is applied at the margin to determine whether the next dollar spent on accident avoidance will yield at least one dollar in accident cost savings (View Chart on Moodle Website)

3. Causation
Causation between conduct and injury Two Part Test of Causation  Actual Cause: As a matter of ordinary reasoning, did the defendants negligent conduct cause the injury to the plaintiff.  Proximate of Legal Cause: If defendants conduct was a cause in fact of plaintiffs injury, was it sufficiently important cause that the defendant should have to pay damages in compensation.

A. Cause in Fact
1. But for Causation
But for the negligence, the damage would not have occurred But-for Test of Causation  The but-for test is the basic test for the actual cause.  It asks: But for the defendants negligent conduct, would the injury to plaintiff have occurred?  This requires the trier of fact to consider what would have happened if the defendant had not been negligent. Proof of Causation  Even in simple cases, it is often hard to obtain evidence of causation. 16

 Sometimes the plaintiff, for example, is unable to testify as to how the accident occurred.  The lawyer must then look to other eye witnesses, expert witnesses, or the defendants own testimony to try to establish this element

2. Multiple Causes and the Substantial Factor Test

The Substantial Factor Test  The but-for test does not work well when multiple causes are operation, any of which would be sufficient to cause the injury to the plaintiff.  In these situations, the courts apply the substantial factor test, asking whether the defendants negligent conduct was a substantial factor in bringing about the injury to the plaintiff. Joint Causation  When two defendants are both negligent, and their negligence combines to injure the plaintiff, two approaches can be taken: o Require the plaintiff to prove how much of the harm was caused by each defendant (called apportioning the harm). o If the harm cannot be apportioned because the injury is indivisible, hold the defendants jointly liable.

3. Loss of Chance and Proof of Mathematical Probabilities

Use preponderance of evidence  More likely than not is the standard of proof

a. Loss of Chance Loss of Chance  Loss of chance involves situations in which the negligence of the defendant deprived the plaintiff of a chance of avoiding harm, even though it was still more likely than not that the injury would have occurred even if the defendant had not been negligent.  If the doctrine is recognized, how should damages be calculated? Lost Opportunity Doctrine - To establish cause in fact, the plaintiff must present substantial evidence from which a jury may conclude that more likely than not, but for the defendants conduct, the plaintiffs injuries would not have occurred - Three Approaches: 1) Pure Lost o Allows a plaintiff to recover for his injury even though it was more likely than not that he would have suffered the injury if the defendant had not been negligent The plaintiff only has to show that the defendants negligence decreased the plaintiffs chance, no matter how slight, of avoiding the injury. Id. If the plaintiff makes such a showing, he receives full damages. Pure Lost Chance o Pure lost chance equates the loss of chance with causation of harm. o Under this doctrine, plaintiff recovers in full even though it is more likely than not that the injury would have occurred anyway. 17

2) Proportional Lost o Identical to the pure lost approach; however plaintiffs recovery is limited to the percent of chance lost multiplied by the total amount of damages that would ordinarily be recovered for action. Proportional Lost Chance o Under this variation, the plaintiff does not recover the total damages caused by the injury. o Instead, the total damages are multiplied by the percentage of chance lost as the result of the defendants negligence. o Under this scheme, should plaintiff recover in full if the lost chance exceeded 51%. 3) Substantial Possibility o Variation of the pure lost approach. Under this approach, the plaintiff must show that there is a substantial possibility that the defendants negligence caused his injury It is unclear what constitutes a substantial possibility, It is clear, however that it does not have to be more than fifty percent. Substantial Possibility o Substantial possibility allows full recovery only if the lost chance of recovery is considered sufficiently significant. o It is not clear how substantial the lost chance must be to allow a full recovery. b. Statistical Proof Statistical Proof - In many toxic tort cases, the P. must rely on statistical proof to establish causation - Under the preponderance of the evidence standard, this means that the P. must show an effective doubling of the risk of harm - However, other factors may support the inference of causation

B. Proximate Cause
Legal cause Focuses on the natural and normal sequence of events

Proximate Cause: Rule Choices  Direct Cause: No independent or intervening forces interrupt the path of causation from the defendants negligence to the plaintiffs harm.  Risk Rule: The defendant is liable for the type of harm, the risk of which made the defendants conduct negligent in the first place. (Also known as the foreseeability rule.)

1. Direct Cause
Direct Cause  Focuses on the sequence of events, looking for intervening forces that might interrupt the chain of causation.  Does not consider whether the injury that occurs was foreseeable or not, so long as the defendant was negligent and that negligence directly caused the harm. 18

Direct Cause: Two Problems  Liability is imposed even for unforeseeable results of the defendants negligence.  Liability is not imposed for foreseeable results that are not direct. Examples: - D. workers were unloading some cargo from a ship when one of the workers dropped a plank into one of the holds where petrol had leaked which caused a spark and led to the ship being destroyed (Polemis- Plank/Spark Fire Case) o Determine whether any this act (dropping the plank) could cause damage  Exact kind of damage is immaterial o Damage need be directly traceable to the negligent act  Plank caused spark with destroyed ship Foreseeability and Duty  One way to deal with the problems of the Direct Cause test is impose a foreseeability requirement on the duty element.  Thus, unless harm to the plaintiff is foreseeable as the result of the defendants conduct, no duty of care arises and therefore no negligence exists.  This sometimes called the Foreseeable Plaintiff rule

2. Risk Rule (Foreseeability Rule)

The Risk Rule  A related approach to the issue is to consider what sorts of risks of injuries made the defendants conduct negligent in the first place.  One then asks whether the injury that the plaintiff suffered is of the type that made the defendants conduct negligent.  If so, the harm is within the risk and defendant is liable.  Under this analysis, all of the steps in the negligence analysis sort of relates to each other o They all have to line up properly Characterization of the Risk  How the risk rule works in any given case will depend on how the parties succeed in characterizing: o The risks created by the defendants conduct; and o The nature of the harm suffered by the plaintiff. Examples: - D. spills oil into harbor which later catches fire and damages a wharf and some equipment around it. The unreasonable risk of harm is the pollution damage not the oil catching fire because that was unforeseeable so the harm is not within the risk created by the D. conduct (Overseas- Oil Fire Case)

3. Foreseeability and etc

a. Extent of Harm 19

The Thin-Skulled Plaintiff  You take your victim as you find him or her.  This means that the defendant cannot limit by arguing that the harm that the plaintiff suffered was unexpectedly severe.  However, this rule is tempered by a related rule which requires the trier of fact to consider whether the plaintiffs condition was such that some injury was likely to occur eventually anyway. Examples: b. Intervening Causes - Superceding cause  An intervening cause that is deemed to be so significant that it excuses the defendant. Intervening Causes  The direct cause test tells us to look for independent and intervening causes, and suggests that they may excuse the defendant from liability.  The Risk Rule tells us to ask whether the intervening cause was foreseeable.  The possibility of the intervening cause coming along to trigger the harm to the plaintiff may have been one of the factors suggesting defendant was negligent. Intervening Negligent Acts  Some intervening negligence is foreseeable o The possibility of negligent conduct by others may create a duty of care which defendant breached (e.g. Derdarian). o Some types of negligence are considered foreseeable additional risk created by the Defendants negligence (e.g. medical malpractice in treating the plaintiffs injuries). Examples: - Herman- Air Rifle Case - Derdarian- Epileptic guy crashes through work site c. Coping Coping  One type of situation involving intervening forces is when they involve the efforts of individuals to try to cope with the dangers created by the defendants negligence.  In such situations, the intervening forces are often found to be foreseeable, on the ground that one could expect some reaction to the dangerous situation. Examples: - Marshall is hit by Nugents car while he was attempting to slow traffic because his father in laws car had been run off the road by a Socony Oil truck (Marshall- Pedestrian Flagman Case) - A scaffold in a downtown business district begins to collapse so pedestrians begin to run away from it. Several of the people ran into a woman and knocked her down breaking her arm. (Problem 3 p.279)  Fleeing situations where someone is hurt is another way in which you can see coping 20

d. Superceding Negligent Acts Superceding Negligent Acts  Sometimes intervening negligent actions are held to supersede the negligent conduct of the defendant. (This means that the defendants negligence is not the proximate cause of the plaintiffs injury.)  To supersede, the negligence must be unforeseeable, such as conduct that is bizarre or grossly careless. Examples: - McLaughlin- Heating Blocks Case o D. could not have foreseen such conduct e. Intervening Criminal Misconduct Intervening Criminal Misconduct  Deliberate criminal misconduct may be superseding.  It is superseding if the defendant is found to have a duty to protect the plaintiff from the risks of criminal misconduct. o Examples:  Landlords duty to tenant y Provide reasonable security  Store owners duty to customer y If its foreseeable that there is a lot of criminal activity in the area then there is a duty to anticipate the conduct and also protect against it  Where defendants conduct defeats the plaintiffs own precautions. Examples: - Watson- Lighting of Match>>Explosion Case - Brauer- After a train wrecked his wagon his goods were stolen o The act of a third person intervening and contributing a condition necessary to the injurious effect of the original negligence will not excuse the first wrongdoer, if such act ought to have been foreseen f. Rescuer Doctrine Rescuer Doctrine  The rescuer doctrine says that a defendant is liable to one who attempts to assist a person placed in peril as the result of the defendants negligent conduct.  In other words, the defendant owes a duty to the rescuer, foreseen or not, based on the status of the rescuer. Examples - Problem 2 (p.251)

4. Damages
The plaintiff must prove that actual injury resulted form the defendants conduct. Nominal damages are not awarded for negligent conduct that does not cause injury 21

IV. Negligence (Odds and Ends)

1. Negligence Per Se
When a legislative statute is used to specify a duty to the P. A. Overview - In addition to custom and calculus of risk, another tool to help the jury set the reasonable person standard of care is whether there are any criminal or civil statutes which already address the blameworthiness of the conduct of the defendant or plaintiff. Negligence per se  Sometimes courts find that it is necessary to specify a particular duty, rather than simply leaving the question open ended.  One source of specific duties is a statute enacted by the legislature, which specifies what the defendant must do in particular situations. (Find out correct thing here)  When a statute is used to specify a duty to the plaintiff, that is known as negligence per se. Examples - Osborne- Failure to Label Poison Case  Where a statute 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 statues was designed to prevent, and which were proximately produced by such negligence B. Is the Statute Designed to Protect this Particular P. from this Risk of Injury When to use the Statute  The statute must: o Impose on the defendant a specific duty for the protection and benefit of others.  Defendant will be liable for harm caused by a breach of that duty: o If the plaintiff is a member of the class of persons that the statute was intended to protect, and o The plaintiff suffered the type of injury the statute was intended to prevent. Compare these two with the proximate cause rules Examples - P. had shipped a number of sheep with the D. ship owner. Ship owner failed to pen them and the animals were washed overboard in the storm. A Contagious Disease Act required ship owners to pen. (Gorris- Animal Pen Case)  D. not liable because Act was enacted to prevent the transmission of diseases not the damage of animals being lost C. How the Relevant Statutes are Applied? Avoiding the Statutory Standard  Legislative specification of duty may be avoided: 22

o By finding the violation excused. o By interpretation of the statute. o By the existence of other policies that render the legislative standard inappropriate. Statutes Often Invoked  Statutes that forbid leaving the keys in the ignition of an automobile o What was the statutes purpose?  These are safety statutes for the purpose of keeping an unauthorized person from taking the car. o Who was the statute designed to protect?  Statute that forbid giving the alcoholic beverages to an obviously intoxicated person (getting cut off) D. Negligence Per Se Applied (Licensing Statutes) Licensing Statutes  Licensing statutes are a special case.  Violation of a licensing statute is not usually considered negligence per se.  The plaintiff must prove that the defendant in fact caused the injury by failing to meet the standard of care.

2. Proof of Negligence
Proof of Negligence  Proof that the defendant was negligent begins by proving what the defendant did. o One method is to use direct proof, such as an eyewitness.  When not available look at circumstantial evidence o Generally, proof of specific conduct is required.  Evaluating the credibility of the witnesses is the task of the jury.  Evaluating the conduct as negligence or not is also for the jury

A. Direct Evidence
Such as an eyewitness Generally, have to prove specific conduct

B. Circumstantial Evidence
Circumstantial Evidence  Sometimes direct proof is not available; plaintiff must then use an indirect method to prove what the defendant did.  Such indirect proof is often called circumstantial evidence.  Tire skid marks, for example, may be an indirect way of proving how fast a party was driving. Examples: - Goodman- Look and See Railroad Crossing Case - Pokora- Delivery Truck Railroad Crossing Case - Wilkerson- Slippery Board Across Pit Case 23

V. Multiple Tortfeasors
Indivisible Injury  Where the misconduct of two (or more) combines to inflict an indivisible injury, the two tortfeasors will be jointly and severally liable.  Injury is indivisible when you cannot separate the harm done by each wrongdoer.  Joint and several liability means that the plaintiff can sue any or all of the tortfeasors and collect the full amount of damages from any one of them who is found liable.

A. Joint and Several Liability

Where there are several concurrent negligent causes, the effects of which are not separable, though due to independent authors, either of which is sufficient to produce the entire loss, all are jointly or severally liable for the entire loss (Carolina, C. & O. RY. v. Hill (Va. 1916) p. 293) Liability is several only where defendants cause distinct or separable components of a plaintiffs harm.

B. Theories of Joint Liability

1. Concert of Action
Concert of Action  If two or more wrongdoers are acting in concert and one of them causes an injury, all the actors are liable for harm inflicted by any one of them.  Acting in concert means acting together, with at least a tacit understanding of a common goal or purpose.  No formal agreement is required in order to act in concert. Bierczynski v. Rogers (Del. 1968) p. 297 - It is also generally held that all who engage in a race on the highway do so at their peril, and are liable for injury or damage sustained by a third person as a result thereof, regardless of which of the racing cars directly inflicted the injury or damage. - The authorities reflect generally accepted rules of causation that all parties engaged in a motor vehicle race on the highway are wrongdoers acting in concert, and that each participant is liable fore harm to at third person arising from the tortuous conduct of the other, because he has induced and encouraged the tort.

2. Enterprise Liability
Enterprise Liability  Sometimes the plaintiff cannot identify which one of a number of possible defendants was the cause of the harm.  Enterprise liability imposes liability on all members of the group of possible defendants.  Plaintiff must prove: o Joint awareness of the risk. o Joint capacity to control the risk. Hall v. E.I Du Pont De Nemours & Co. (E.D.N.Y. 1972) p. 300 24

13 children were injured by blasting caps in 12 unrelated accidents

3. Alternative Liability
Alternative Liability  Again, the plaintiff cannot identify which of two or more negligent defendants in fact caused the harm.  Alternative liability holds both negligent defendants liable unless one or the other can exonerate himself.  In effect, the burden of proof is shifted on the issue of causation, rather than exonerate both negligent defendants. Summers v. Tice (Cal. 1948) p. 304 - A, B, and C go hunting, A and B shoot at quail but in the direction of C - C is struck but can not say if it was A or B but definitely had to be A or B

4. Market Share Liability

Market Share Liability: The DES Cases  Plaintiff must join manufacturers representing substantial share of the market for the product.  Plaintiff must be unable to identify the manufacturer of the particular product that caused her harm.  The burden shifts to the defendant. Market Share: Sindell  If unable to show it did not make the product that caused the injury, defendant is liable for the percentage share of plaintiffs damages represented by its market share of the product.  NOTE: this approach does NOT result in joint and several liability. Sindell v. Abbott Laboratories (Cal. 1980) p. 307 - P. injured as a result of a drug administered to her mother during pregnancy, who knows the type of drug involved but cannot identify the manufacturer of the precise product o Can she hold liable the maker of a drug produced from an identical formula?  Yes, each manufacturers liability for an injury would be approximately equivalent to the damages caused by the DES it manufactured After Sindell  Some courts eliminate the requirement that plaintiff sue manufacturers representing a substantial share of the market. (Martin, Collins)  Other courts eliminate a defendants ability to exonerate itself and escape liability. (Hymowitz)  One court extended market share liability to products other than DES. Hamilton v. Accu-Tek (E.D.N.Y. 1999) p. 317 - Relatives of six people killed by handguns, as well as one injured survivor and his mother, sued 25 handgun manufacturers for negligence

25

C. Indemnity and Contribution

Indemnity  Indemnity is a rule that requires one tortfeasor to fully reimburse another tortfeasor who has paid the plaintiffs judgment.  Where the rule applies, it usually requires full reimbursement regardless of rules such as comparative negligence.  An obligation to indemnify arises out of the relationship between the two tortfeasors. Indemnity: When?  Indemnity may be required by a contract between two parties.  A defendant who is only vicariously liable may seek indemnity from the party who was actively at fault.  A retailer held liable because of a defective product may seek indemnity from the manufacturer. National Health Laboratories, Inc. v. Ahmadi (D.C. App. 1991) p. 322 - Dont get indemnity when you are actively negligent. - Now have two negligent parties and the issue is contribution. Bervoets v. Harde Ralls Pontaic-Olds, Inc. (Tenn. 1994) p. 326 - By getting rid of joint and several liability, no defendant should be made to pay more than his share. - Court says that in retrial the jury will determine the percentage of fault attributable to each of the defendants, and contribution will be ordered accordingly. Contribution  Contribution refers to a sharing of responsibility between two tortfeasors.  Contribution usually requires that the two (or more) tortfeasors be jointly and severally liable for an indivisible injury.  Before comparative responsibility, the tortfeasors usually shared pro rata.  With comparative responsibility, shares are based on the relative percentage of fault. Examples: Problem 1 page 331 - Does defendant #2 have to pay the remaining $700 or only its half of $500? - Dollar for dollar credit defendant 2 would be given $300 dollars credit and have to pay $700 to fulfill damages. Does #2 have a right to go after #1 for the other $200? If you did, then it would discourage settlement. So as long as the settlement was in good faith, then there would be no reimbursement. - Pro Rata Credit When plaintiff settles with one of two jointly liable defendants, then plaintiff has settled half the case. So under this approach, defendant #2 would only pay half or $500 so plaintiff would end up with $800. - Most jurisdictions adopted the dollar for dollar credit. Problem 2 page 331 - Now defendant #1 settles for $700. - Does defendant #1 have a right of contribution towards two? No, unless defendant settled the entire case. 26

VI. Defenses to Negligence

A. Defenses Based on the Plaintiffs Conduct
1. Contributory Negligence
 The plaintiffs failure to use due care for his or her own safety was a total bar to recovery in negligence.  In most jurisdictions, contributory negligence was an affirmative defense on which the defendant had the burden of proof. Butterfield v. Forrester p. 525 - Well established rule that you could not put up barriers on publics roads - However, had the P. used due care in riding his horse he would have seen the obstruction Avoiding the Bar  Several doctrines mitigated the harshness of the all or nothing rule of contributory negligence: o Last Clear Chance o Contributory Negligence was not a defense to intentional torts or to willful and wanton misconduct. o Defendant may have a duty to protect the plaintiff from the plaintiffs own carelessness. Problems (p.529) 1. Mental patient falls while trying to escape mental hospital and suffers some injuries. Hospital had a duty to protect the P. from the P. own carelessness. Sometimes certain people (mental hospital, product liability) have a duty to protect others from carelessness

2. Comparative Negligence
 All Comparative Negligence rules are aimed at avoiding the harshness of the Contributory Negligence doctrine, by reducing rather than barring the recovery of the negligent plaintiff.  The two basic types of Comparative Negligence Rules are pure and modified. Bradley v. Appalachian Power Company p. 530 - Court adopts a modified version - Provides that a party is not barred from recovering damages in a tort action so long as his negligence or fault does not equal or exceed the combined negligence or fault of the other parties involved in the accident Rule Choices  Pure comparative negligence allows some recovery so long as the plaintiff is not 100% at fault.  Modified systems reinstate the total bar to recovery once the plaintiffs negligence exceeds some defined level, usually 50% or 51%. 27

o If you have a 50% bar, when a jury delivers a 50/50 split, P. cannot recover o If you have a 51% bar, and a jury delivers a 50/50 split, P. can recover Possible Affect on other Rules  Joint and Several Liability o Has not changed  Last Clear Chance o Recently, most courts have said that there is no longer an independent doctrine to allow a P. who was at fault, to be allowed to collect in full  Assumption of the Risk  Multiple Tortfeasor Cases  Settlement with some defendants before trial What are we comparing? - One hand- fault of P. - Other hand- strict liability of D., which is liability without fault - TX - Adopts a scheme called comparative causation - Dont compare fault, but the causation of the accident o How much did each party contribute? - Proportionate Responsibility (See Handout) o FINAL  KNOW WHAT THE BAR IS FOR A PLAINTIFFS RECOVERY and KNOW WHEN D. CAN BE JOINLTY AND SEVERALLY LIABLE o A claimant many not recover damages if his percentage of responsibility is greater than 50% (51% bar to recovery)  Percentage of responsibility (See Proportionate Responsibility Handout) y Comparing the responsibility for causing the harm Law v. Superior Court (Ariz. 1988) p. 537 - Concluded as a mater of public policy that the law must recognize the responsibility of every person to anticipate and take reasonable measures to guard against the danger of motor vehicle accidents that are not only foreseeable but virtually certain to occur sooner or later. - Rejection of the seat belt defense can no longer be based on the doctrine that one need not anticipated the negligence of others. The Seatbelt Defense y How should the courts treat the failure to wear a seatbelt? o Is it contributory negligence? o Assumption of the Risk? o Avoidable Consequences?

3. Assumption of Risk
a. Express Assumption of the Risk Express Assumption of Risk

28

y y y y

Express assumption of risk is a contractual agreement allocating certain risks to the potential plaintiff The scope of the release must be construed. o What was it that was actually released? The court will examine the release to determine whether it offends public policy. o Typically, P. will say it shouldnt be enforced because it offends public policy When you are reading a release need to know rules of your jurisdiction

Wolf v. Ford (Md. 1994) p. 545 - Wolf had Ford manage her investments - After a while she did not like the results, she terminated her agreement so she sued saying the negligence of the investor made her suffer losses b. Implied Assumption of the Risk Implied Assumption of the Risk y Implied assumption of the risk was once thought of as an implied contract to allocate certain risks to the plaintiff y It required a subjective awareness of the reasonable nature of the risk created by the defendant, plus conduct that showed a voluntary decision to encounter the risk y Such conduct constituted consent to allow the defendant to impose the risk on plaintiff Murphy v. Steeplechase Amusement Co., Inc. (N.Y. 1929) p. 551 (The Flopper Case) - P. suffered a fractured kneecap when he fell on the Flopper - A fall was foreseen as one of the risks of the adventure. Knight v. Jewett (Cal. 1992) p. 554 - P. is injured by D. while playing in a casual yard football game Contributory Negligence Compared y If the plaintiff voluntarily encounters a risk known to be unreasonable, is that really contributory negligence? y If the plaintiff voluntarily encounters a risk that is not unreasonable, is that really a no negligence situation for the defendant? And Comparative Negligence y With the arrival of comparative negligence, courts had to decide whether assumption of risk survived as a total bar to recovery y The alternative was to treat it as a form of contributory negligence that could be considered in assigning a percentage of fault to the plaintiff Secondary Assumption of Risk y Secondary of assumption of risk occurs when the conduct of the plaintiff consists in voluntarily encountering the unreasonable risk created by the defendant y This is treated today as a form of comparative negligence Primary Assumption of Risk 29

y y

Primary assumption of risk occurs when we determine that the duty owed by the defendant to the plaintiff is limited, because the plaintiff is deemed to accept certain risks When the defendant meets the limited duty, the doctrine is a bar to recovery because the defendant is not negligent

VII. Limited Duty: Special Limitations on the Scope of Duty

A. Introduction- Non-feasance and Special Relationships
Limited Duty  Limited duty means that the court, usually for some reason of policy, adopts as a legal rule that only a limited duty of care is owed by the defendant, that is, something less than the usual duty of care  In some cases, the limited duty is actually no duty  If not duty of care exists, then the plaintiffs negligent action fails at the first element. Yania v. Bigan (Pa. 1959) p. 379 - D. asked two fellow miners to help him start the pump. One of the miners jumped in the water in the pit and drowned. The wife of the deceased filed suit against the defendant for negligence. - The court ruled that the deceased was aware of the risks of his actions and the was under no legal duty to rescue him from a situation in which the was not responsible.

B. Misfeasance vs. Non-Feasance

Weirum v. RKO General, Inc. (Cal. 1975) p. 382 - The is a radio station that was having a contest where the first person to get to an unknown location and find a DJ that was roaming around and could claim a monetary prize. While chasing the DJ to a location, one of two cars ran a fourth car off the road and killed the driver. The driver of the crashed car sued the radio station for negligence. - Did the owe a duty to decedent arising out of its broadcast of the giveaway contest? - The s claimed they did nothing wrong and did not owe a duty, and if they did owe a duty, they did not breach it. - Misfeasance exists when the defendant is responsible for making the plaintiffs position worse, i.e., defendant has created a risk. - Conversely, non-feasance is found when the defendant has failed to aid plaintiff through beneficial intervention. - The court ruled that the contest is naturally dangerous and causes an unreasonable and foreseeable risk to people driving on the roads during their contest. - Here the committed an act of misfeasance, so the Good Samaritan rule (314) is inapplicable. Liability is not based on s failure to intervene, but rather upon its creation of an unreasonable risk of harm to the decedent. Non-feasance (Not doing something) 30

 Non-feasance means no-action, and usually refers to the conclusion that the defendants conduct amounted to a failure to act, as opposed to an action that may have been performed without due care.  In some situations this will mean that the defendant is not liable because defendant had no duty to act. Misfeasance (Doing something but badly)  Misfeasance usually expresses the conclusion that the defendant acted and acted badly (without due care).  It is often possible to argue that what appears to be mere non-feasance is actually misfeasance: acting and acting badly. Notes (p.387)

C. Exceptions to the No Duty Rule

Creating a Duty to Act  Another way of attacking a Non-feasance claim is to argue that defendant in fact did have a duty to act and was negligent in breaching that duty.  One situation in which a duty is created is when the defendant, although under no duty to act, in fact undertakes to do something and does so badly.

1. Defendants Negligence Places the Plaintiff in a Position of Peril

Day v. Waffle House, Inc. (Okla. Ct. Civ.App. 1987) p. 388 - One of the s was cut in the mouth when she tried to eat her food. The waffle house claimed it did not have a phone to call an ambulance, so the other was going to drive her to the hospital. When leaving the waffle house the s car was hit by another car as the was passing though a green light. The sues the waffle house for negligence and then sues under the rescue doctrine. - The court of appeals reversed on the grounds that the incident occurred in the midst of a rescue that the s were responsible for. Duty Creation: Examples  Ones negligent (or even non-negligent) conduct injures another. One may have a duty to aid, and a duty to rescuers.

2. Voluntarily Assumed Duties

Even when there is otherwise no legal duty to act in a given situation, a duty may arise where the defendant voluntarily undertakes to render some type of aid or assistance and does so negligently

Duty Creation: Examples  Ones voluntary assumption of a duty may create a duty to continue to perform, or at least to warn that it will be discontinued, where one knows that others have come to rely on the performance of the duty. Florence v. Goldberg (N.Y. 1978) p. 391 31

A 6 year old child was crossing the street at a crosswalk on the way home from school and was struck by a taxi and resulted in severe brain damage to the infant. The first two weeks of school, the childs mother walked him to and from school. She observed a police officer at the intersection every day. Two weeks into school she received a job and determined that since the police officer was present then there was no need for her to assist her child across the street. By undertaking to do something you create expectations and when you with withdraw, other people are put into danger. In this case the court ruled that the police department had undertaken the responsibility to protect a certain class of people, young children in this case. Since the plaintiff relied on this assumption, than the failure to perform the duty put the child in greater danger than otherwise would have been in.

3. Special Relationships
One of the most frequently asserted justifications for imposing an affirmative duty to render aid to persons in peril is based upon the existence of some type of special relationship between the affected parties. There is no duty to control the conduct of a third person as to prevent him from causing physical harm to another unless (a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third persons conduct, or (b) a special relation exists between he actor and the other which gives to the other a right to protection.

Special Relationships  Special relationships create a duty to act.  Courts find special relationships in certain traditional categories, such as the common carrier-passenger relationship, which creates a duty to protect the passenger from others. o Other traditional categories: Business invitor-invitee, Custodial relationships, Landlord-tenant relationships, and Employer-employee relationships  Courts also recognize special relationships where the actor has a duty to control another to prevent harm. Farwell v. Keaton (Mich. 1976) p. 396 - The decedent was beaten up and his friend/ put ice on his head and drove him around to other drive through restaurants and then attempted to drop him off at his grandparents house. He could not awake his friend in the back seat so he left him in the car and left. The decedent died three days later from injuries resulting from the fight. - The knew or should have known that his friend would not be found and was aware of his peril, and could render assistance without endangering himself. So he owed his friend a duty to provide reasonable care because they had a special relationship. Tarasoff v. Regents of University of California (Cal. 1976) p. 398 - The informed the psychiatrist at school that he was going to kill Tarasoff. The police were notified, but the was released form confinement when it appeared he was not a danger. The indeed killed Tarasoff and her family sued the regents of the school claiming there was a special relationship between the doctor and the patient to protect a third person. - The court ruled that if a doctor discovers that a patient is going to injure a third party it has 32

a duty to exercise reasonable care to protect the foreseeable victim of that danger. Tarasoff: An identifiable victim  In the Tarasoff case, the duty to warn was based on: o The therapists actual prediction of the attack; and o The therapists knowledge of the victims identity.

F. Negligent Infliction of (solely) Emotional Injuries

Negligent Infliction of Emotional Distress plaintiff seeks to recover for purely emotional distress injuries that are allegedly caused by the actors original negligence toward some other person with whom the plaintiff claims some type of close or other special relationship. A courts task in determining duty is not to decide whether a particular plaintiffs injury was reasonably foreseeable in light of a particular defendants conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party.

In the Beginning:  Originally the common law did not recognize a cause of action for conduct that caused only emotional injury, unless it could be fit within an existing cause of action such as offensive battery. (Remember the Fisher Case?)  On the other hand, the law did allow damages for mental suffering if it was the result of a physical injury. Searching for limits  The continuing concern has been how to set reasonable and reliable limits on an action for purely emotional harm.  First, what sorts of conduct by a defendant that cause emotional distress should result in liability?  Second, what guarantees of the genuineness of the plaintiffs injury should we require? Dziokonski v. Babineau (Mass. 1978) p. 425 - Daughter is hit by a car, on the way to the hospital the mother dies, and the father later sues for emotional distress - Looks at whether a person who negligently causes emotional distress which leads to physical injuries may be liable for those injuries even if the injured person neither was threatened with nor sustained any direct physical injury The Impact Rule  An early attempt at setting limits was the impact rule.  The defendants negligent conduct would not lead to liability for emotional harm unless the plaintiff suffered some physical impact on his or her person. o Does not have to be physical injury  Maybe just touched y Ex. A car speeds by and your sleeve is brushed 33

o The legal effect of the rule is to deny recovery by even the closest relatives of the victim of a negligently inflicted injury case where they merely witnessed or learned nearly contemporaneously of the victims injury but were not themselves physically harmed by the actors negligence  The impact itself did not have to cause physical injury.  Negligence was judged in the usual sense of creating unreasonable risk of physical harm. Zone of Danger  Courts then began to allow recovery if the plaintiff, although not physically touched, was placed in danger by the defendant. o Person is so closely situated to the accident scene that they could have been physically impacted  Under this test, the courts began to allow recovery for persons who suffered fright at the threat to their own personal safety. The Physical Injury Requirement  Some courts also adopted a requirement that the plaintiffs emotional distress must result in physical injury to the plaintiff.  This often gets watered down to a requirement that the plaintiff show objective physical symptoms caused by the emotional distress. o Objective physical symptoms Dillion v. Legg (Cal. 1968) p. 429- Dziokonski - A mother witnessed her minor daughters death in a motor vehicle accident caused by the D. negligence, and who sustained emotional disturbance and shock to her nervous system which caused her physical and mental pain and suffering Bystander Recovery  The next extension allowed recovery by bystanders to an accident.  Bystanders are close relatives of an accident victim who suffer emotional distress at witnessing the injury to the victim.  Recovery is allowed even though the bystander was not in the zone of danger. Dillon Factors  Was the bystander at the scene of the accident? o Contrasted with one who was a distance away from it  Did the bystander witness the accident and injury to the victim? o Contrasted with learning of the accident from others after is occurrence  Were the bystander and the victim closely related? o Contrasted with the absence of any relationship or the presence of only a distant relationship Thing v. La Chusa (Cal. 1989) p. 434 - Whether a mother who did not witness an accident in which an automobile struck and injured her child may recover damages from the negligent driver for the emotional distress she suffered when she arrived at the accident scene - P. may only recover damages for NIED caused by observing the negligently inflicted injury of a 3rd person if but only if, said P.: 1) Is closely related to the injury victim 34

2) Is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim 3) As a result suffers serious emotional distress, a reaction beyond that which would be anticipated in disinterested witness and which is not an abnormal response to the circumstances Molien v. Kaiser Foundation Hospitals p. 438- Thing - The wife went to the doctor and was diagnosed with siphilys (which she did not have), and the doctor told her to tell her husband. She did and they both freaked out and it ruined their marriage. The question was if the husband could recover for NIED. The Molien Case  In the previous situations, the defendants conduct was negligent in the usual sense of creating an unreasonable risk of physical injury.  The present frontier of emotional distress litigation involves whether there should be liability for conduct that creates only an unreasonable risk of emotional harm.

VIII. Premises Liability: Duties of Owners and Occupiers of Land

A. Common Law Status Categories of Entrants
Landowners & Occupiers The Traditional Views Limited Duties  The rules about the duties owed by owners and occupiers of land to those entering onto the land can be thought of as a highly developed variation of limited duty.  In this case, the scope of the landowners duty depended on the status of the plaintiff who comes on the property. Holzheimer v. Johannesen (Idaho 1994) p. 444 - H. contends that he was injured in the warehouse while retrieving fruit packing boxes which he was purchasing from J. - Court found that H. was a licensee thus entitled to a lower standard of care than an invitee The Categories  Trespasser: One on the land without permission: owed only a duty not to willfully and wantonly injure. o If you know a trespasser is on you property and you see that they are about to step into a quicksand pit, you might have to warn him.  Licensee: One on the land with permission but not for the benefit of the owner: owed only a duty to warn of known dangerous conditions. o Doesnt owe a duty to make it safe, just to warn about circumstances  Invitee: One on the land for the benefit of the owner: owed a duty of due care. o May have an obligation to make the premises safe. o Eliminate dangers, warnings may not be enough o Ex. Grocery store 35

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Cannot just have a sign-watch out for banana peels, you have a duty to make sure the peels do not remain on the floor

After the duty is determined, you have to ask if that duty had been breached Makes a difference in how the cases get tried pay attention to the number of summary judgments approach the case by starting with the duty element but to solve the duty issue, the first thing you have to do is figure out the status of the victim

The Prima Facie Case  Categorizing the plaintiff establishes the duty of care, if any.  Plaintiff must still prove that the duty was breached.  Plaintiff must still prove that the breach of the duty was the actual and proximate cause of the harm to the plaintiff. Palmtag v. Gartner Construction Co. (Neb. 1994) p. 448 - Mrs. P. fell through this piece of plywood because it did not support her weight and she suffered injuries Conflict of categorization Foleys example - Modern interpretation most people in Foleys are there the shop that is the standard of care owed to everyone that of an invitee o Thats not to say that status cant change grocery store example where there are restricted areas and the once invitee/licensee doesnt have permission anymore (trespasser)

B. Special Categories of Entrants

1. Trespassing Children
 Duty of care is owed to children even if they are trespassers if: o The defendant has reason to know of the childrens presence; o The defendant has reason to know of the existence of a dangerous condition. o The defendant should realize that the children will not recognize the danger. o The defendant fails to use due care. Mozier v. Parsons (Kan. 1995) p. 455 - Most jurisdictions now do not require that the dangerous condition entice the child onto the property. - According to the restatement the condition must be one in which is an artificial condition of the property. - Attractive nuisance is a principle that is not really used anymore

2. Firefighters, Police Officers, and Other Public Officials: The Fighters Rule
Bars recovery by an injured firefighter or police officer for those injuries which have been caused by the same conduct or activity that was reasonable for the entrants original presence at the scene, just as any true licensee would be barred. The landowner may still have a duty to warn firefighters and police officers who enter the 36

premises as to the presence of certain hazards which are know to exist, as well as to refrain from inflicting any willful or wanton injury. The Firefighters Rule  A landowner owes no duty of care to a firefighter with respect to the condition that made the firefighters presence necessary.  However, a landowner does owe a duty to the firefighter with regard to other distinct hazards that may be present on the property. Chapman v. Craig (Iowa 1988) p. 462

3. Social Guests
A social guest is one who has been expressly invited onto the premises for some social, non-business purpose. Despite the fact that such persons have been invited to enter the premises, the majority of American Jurisdictions treat them as mere licensees, to whom the landowners duty is to provide a warning of known, hidden dangers.

Social Guests  A social guest receives an invitation, and so is claissified as: o A Licensee  The rationale is that social guests are on the premises with permission but not for a business purpose, and so must be licensees.  Some courts are willing to classify guests as invitees if some incidental business purpose or benefit to the landowner can be shown. Hambright v. First Baptist Church-Eastwood (Ala. 1994) p. 466 - Mrs. Hambright was injured when she slipped and fell on an oily like area while attending services at FBC-Eastwood

C. Recreational Premises
Traditionally people that came onto someones land for recreational purposes were classified as invitees. Although legislatures in almost every state have enacted statutes (recreational statutes) that expressly articulate a lesser duty. These statutes treat recreational entrants as licensees rather than invitees, and impose only a duty to refrain form intentionally inflicting an injury to the recreational entrants. (ch. 75 civil practice and remedies code)

Reed v. Employers Mutual Casualty Co. (La. Ct. App. 1999) p. 470 - A tree stand with Reed on it falls and Reed suffers some injuries - He sues Gimber for negligently installing the tree stand - Gimber assert the Recreational Use Statute Recreational Premises  Recreational use statutes limit the duties of owners and occupiers of property who make their land available, without fee, for recreational uses such as hunting, fishing and hiking.  The duty owed may actually be less than that owed a licensee, since some statutes eliminate even a duty to warn.  Statutes must be construed, The defendant must show that the statute in fact applies. 37

D. Criminal Assailants
Criminal Attacks  A business may owe an invitee a duty to take reasonable precautions against criminal attack.  Usually the business must be aware of criminal activity in the area, which makes the possibility of such an attack foreseeable.  Reasonable precautions is open to interpretation regarding what must be done, and over what area. Remember: B<PL McClung v. Delta Square Ltd. Partnership (Tenn. 1996) p. 474 - McClung is abducted in a Wal-mart parking lot in the Delta Square Shopping Center - Husband sues them for being negligent in failing to provide security measures for their parking lot and they were the proximate cause of Mrs. McClungs death

E. Abolition/Modification of Common Law Status Categories

Rowland v. Christian (Cal. 1968) p. 481 - P. alleged that he was a social guest and that he suffered injury when the faucet handle broke Abolishing the Categories y What was wrong with the categories? o Needless complexity o Based on the wrong considerations y They address a scope of duty that we are not really trying to address y Question of foreseeability y Takes it into account but only generally y What is the proper approach? o Impose a duty of due care under all the circumstances o The status of the plaintiff is now merely one circumstance to consider on determining whether a duty was owed and was breached Jones v. Hansen (Kan. 1994) p. 488 - While a social guest in the home of D., P. fell down a flight of stairs, severely injuring herself Halfway Measures y Short of totally abolishing the categories, some courts have eliminated only the distraction between licensees and invitees y A landowner would owe a duty of due care under all the circumstances to both y Trespassers would still be owed only a limited duty. Their presence on the land without permission is still considered a decisive factor in limiting the landowners duty Coggin v. Starke Brothers Realty Co., Inc. (Ala. 1980) p. 498 - Mrs. Coggin slipped and fell down the back steps and sustained injuries 38

o Steps were steep and narrow and lacked a handrail Lessors: Traditional Rules y The traditional rule was that the lessor owed no duty of care to a lessee or to a lessees invitees y The rule was based on the view that the lease of the premises acted as a conveyance of the property for the period of the lease y Under that view, the lessee was responsible for the condition of the premises Exceptions y The exceptions to the no duty rule recognized that the lessor did retain some control and responsibility for the condition of the premises under some circumstances y For example, the lessor retained responsibility for common areas because they were not part of the conveyance, but remained in the lessors control More Exceptions (later on) y The lessor was responsible for repairs negligently performed (misfeasance) y The lessor was responsible for undisclosed latent defects in the premises (duty to warn) y Where the premises are leased for the purpose of permitting the public to enter (e.g., for a business), the lessor owes a duty Pagelsdorf v. Safeco Ins. Co. of America (Wis. 1979) p. 502 - A neighbor while helping move furniture out of a duplex falls off a balcony after a wooden railing breaks - A landlord owes his tenant or anyone on the premises with the tenants consent a duty to exercise ordinary care. If a person lawfully on the premises is injured as a result of the landlords negligence in maintaining the premises, he is entitled to recover from the landlord under general negligence principles Abolishing the No Duty Rule y As the modern lease came to be viewed as a contract rather than a conveyance, the basis for the no duty rule disappeared y At least for residential leases, the courts have tended to abolish the no duty rule and replace it with a duty of due care

IV. Damages for Personal Injuries

Damages for Personal Injury  Past Economic Loss: o Wages lost up to date of trial. o Medical Expenses incurred up to the date of trial.  Future economic loss: total and reduce to present value: o Wages to be lost in the future. o Medical expenses to be incurred in the future.  Past and future pain and suffering.

A. Economic Losses Caused By Physical Injury

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Seffert v. Los Angeles Transit Lines (Cal. 1961) p. 333 Problems: Lost Wages (p.335) 1. Easy to calculate- already has job at a certain wage 2. Harder to calculate- does not have a job, trying figure what range she might fall into for future wages Problems: Medical Expenses 1. Easy to calculate- just add them up 2. Harder to calculate- involves past expenses and future expenses Past Economic Loss  Lost wages and medical expenses up to the date of trial.  These losses are capable of precise calculation and proof, and courts will require detailed evidence showing this loss. Future Economic Loss  These losses are more speculative, as it is necessary to predict what plaintiff whould have earned but for the accident, and what plaintiff will have to pay for treatment, because of the accident.  One must predict not only what the losses would be, but how long they can be expected to continue. o Will plaintiff ever fully recover and return to work? o How long will plaintiff likely live? o How long would plaintiff have worked but for the accident?  These totals are usually reduced to present value. Structured Settlements - Contracts that provide payment for certain needs, if and when they arise. - Annuity- pay out instead of in one lump sum, it will pay out every year a certain amount of money. Tell insurance company how much you want every year - The receipt of personal injury settlements is not taxable. o If it is then invested in a mutual fund, etc., then it is taxed.

B. Future Damages and Discounting to Present Value

Jones & Laughlin Steel Corp. v. Pfeifer (U.S. 1983) p. 336 - Watch out for cheating in the calculations

C. Non-Economic Losses: Pain and Suffering

Pain and Suffering  There is no mathematical formula that can precisely calculate the award for P&S.  P&S compensates for the pain of the injury itself, the psychological effects of the pain, and also usually for the ongoing suffering experienced because of lasting effects of the injury (also known as loss of enjoyment of life).  This element also has past and future components. 40

McDougald v. Garber (NY 1989) p. 345

D. Mitigation
Colton v. Benes (Neb. 1963) p. 354 Avoidable Consequences (Mitigation)  Plaintiff will not recover for losses that the plaintiff could have avoided by taking reasonable precautions after the accident occurred, this is a general rule of damages.  In the case of personal injuries, this may require the plaintiff to obtain medical care to treat and cure the injuries suffered in the accident.  Whether the plaintiff must undergo a major operation depends on the danger from the operation and the chances of a cure. o What about religious groups? What if they dont allow you to do things to mitigate damages (ie: going to the doctor)? They can go either way

E. Loss of Consortium
Loss of Consortium  Loss of consortium is compensation for the loss of the society and services of another.  Originally it was compensation to the husband for loss of services of his wife resulting from the tortuously inflicted injury.  All jurisdictions now allow the wife a similar action.  More controversial are actions by parents for injuries to children, and vice versa.

F. Collateral Benefits
Collateral Source Rule  The amount that a D. must pay in damages is not reduced by amounts the P received from a collateral source as compensation for the same losses, such as medical bills or lost wages.  A collateral source is a source not originating from the D. side of the litigation. Thus, a joint tortfeasor who settles is not a collateral source.  A typical example of a collateral source is the P. medical, disability or property insurance. A Target of Tort Reform?  Attacks on the collateral source rule claim that it results in a double recovery for the same injury  In fact, this is often not the case. Medical and property insurance, for example, often provides for reimbursement of the insurer if the insured recovers damages for the loss.  The net result is to place the loss on the D. and the D. liability insurer, rather than on the P. and the P. first party insurance.

X. Wrongful Death
Moragne v. States Marine Lines, Inc. (U.S. 1970) p. 509 The Common Law 41

 If a tort resulted in the death of the victim, the victims cause of action died with him or her. The cause of action, it was said, did not survive the victims death.  Others who may have depended on the victim for support did not have a cause of action, either. The death of another was not an injury to them. Statutory Changes  Survival Statutes provide that the cause of action belonging to the deceased victim is not lost by reason of the victims death.  Wrongful Death acts (AKA Lord Campbells Acts) create a new cause of action for those injured by the loss of the deceaseds financial support and companionship. OGrady v. Brown (Mo. 1983) p. 512 - What happens when the D. tort results in a death of an unborn child? - Jurisdictions are in disagreement over whether the unborn child is a person within the meaning of there statute Whose Death? Who Recovers?  The deceaseds own claim usually passes to the estate, is asserted by the representative of the estate, and any award is distributed though the estate.  Those who may sue for wrongful death are defined by the statute. o Very broad range of people that can sue o In TX, only parents, spouses, and children can recover for wrongful death  More restricted  Jurisdictions disagree whether an unborn child is a person for whose death a wrongful death action will lie. Murphy v. Martin Oil Co. (Ill. 1974) p. 516 Damages in Survival Actions  These are the deceaseds own losses: o Lost wages up to the time of death. o Medical expenses until death. o Conscious pain and suffering until death. o Funeral expenses. o Damage to deceaseds property. Damages for Wrongful Death  Keep in mind that this action allows recovery for the injury that others suffer as a result of the victims death.  Many statutes originally limited recovery to pecuniary loss.  Pecuniary loss was defined as the amount that the deceased could have been expected to contribute to the support of the plaintiff. Bullard v. Barnes (Ill. 1984) p. 517 - Even though, there is a limitation in the statute courts have evaded the limitation by allowing recovery for loss of society Loss of Society  The pecuniary loss limitation had the effect of making recovery for the death of a child 42

small to non-existent.  By judicial decision or statutory amendment, many jurisdictions now allow recovery for loss of society of a child; in effect, for emotional distress.  If the child is old enough, some estimate of future earning capacity is possible. A Derivative Action  Both statutory actions depend on the ability of the deceased to recover.  If the deceased would have been barred by contributory negligence, that will also bar recovery for both statutory actions.  If a party entitled to sue for wrongful death negligently contributed to the victims death, that will also limit recovery.

Test
MC- 45?s (90 mins.) Essay (90 mins.) Direct cause - Look for intervening events, and once you have identified that event, did the D. conduct create the type of risk, was that event foreseeable?

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