ABNORMALLY DANGEROUS ACTIVITIES Strict liability for harm to person, land or chattels resulting from the activity, even

n though exercised care Defense assumed risk Limited to the harm imposed by the activity activity involves high degree of risk gravity of harm is likely to be great risk cannot be eliminated by care Seigler v. Kuhlman gasoline tanker (strict liability) not of common usage Rylands v. Fletcher reservoir and flooded mineshaft, non natural use in mining land (abn dangerous, strict liability land owner) inappropriate to the place where carried on value of activity to community EMERGENCE OF STRICT TORT LIABILITY Greenman v. Yuba Power Products Faulty combo power tool and lathe Manufacturer assumes liability when not inspecting products (warranty doesnt cover liability imposed)
Torts are: a way to resolve disputes between parties in a non criminal proceeding. Cases are usually seeking financial compensation. They also can be used to seek an injunction to stop an action. They also serve as a deterrent. They also encourage good conduct, meeting social responsibility.

Tort duties are non criminal, non contractual, not related to property, socially created obligations or duties. Can be intentional or negligent. Tort-in civil law, a wrongful act for which damages can be sought
I. Intentional torts: Battery, assault, false imprisonment, intention infliction of emotional distress,

Can recover only if intentionally invaded the specific interest that is protected by tort.
I. Tortious intent a. Volitional act AND b. Either i. For the purpose or ii. With substantial certainty of tortious consequence

Transferred intent: actor tries to batter one person and actually causes a harmful or offensive contact to another is still liable to actual victim 1

 Intentionally causing apprehension of imminent harmful or offensive contact constitutes an assault. If defendant intends actual contact, but only causes apprehension, the defendant is liable for assault. The same goes if the D intends actual contact but causes only apprehension or confinement. Then false imprisonment INTENTIONAL TORTS BATTERY Statute of Limitation 1 year Prima facie (1) Intent to harm. Not just touch (1) Volitional act (2) Purpose or substantially certain (2) Causal Link (actually caused harm) (3) Contact (harmful or offensive, offends dignity) Contact does not need to be w/ body, only closely identified w/ body Special knowledge of a subjective matter makes it objectively unreasonable (knowing a person is sensitive) Does not matter if harm far exceeds intent Battery and negligence are not mutually exclusive Substantially certain contact with someone (harmful touching includes putting in motion something that touches another person) can have neg/battery Fisher v. Carrousel Motor Hotel plate snatching (forceful dispossession in offensive manner sufficient for battery) Unconsented medical treatment is battery ASSULT intentional threat or attempt, coupled with apparent ability to do bodily harm to another, resulting in immediate apprehension of bodily harm. No contact is necessary. Prima Facie (1) Intent (2) Reasonable apprehension of contact (battery) (3) Apparent ability (4) causation (apprehension must be caused by Ds Act (4) Immanence Vetter v. Morgan threatening to remove girl from car (apprehension of imminent harmful contact) look at surrounding circ. words can constitute assault if, together with other acts or circumstances they put the other in reasonable apprehension of imminent harmful or offensive contact FALSE IMPRISONMENT (protects personal autonomy and movement) Prima Facie 2

(1) Intent to confine (including directing others to confine (2) Unconsented confinement (actual or apparent physical barrier, threat of force, duress, false exercise of authority) (3) Awareness of confinement (Confinement is within a boundary not of your choosing) Remaining within set limits is not a submission to the threat unless the prisoner believed that the actor had the ability to carry his threat into effect. Do not have to assault captor, but should attempt to see if there is a threat forcing them to stay. No be predicated upon persons unfounded belief that he was restrained. Reasonable and reasonable discoverable means of escape negates a confinement. Person has not been confined by threats of Physical force unless by words or other acts the actor threatens to apply and has the apparent intention and ability to apply force to his person.

Shopkeepers privilege (Statute) if you reasonably believe that someone stole something from your store, you can detain them for a reasonable time and a reasonable manner to investigate the ownership of the property (10-15 minutes is typical).

Begins after goods are secure, and after the reasonable time for holding (arrest privilege) Teel v. May Dep Stores credit card use and detention until confession (unreasonable delay in releasing or waiting to call authorities or allow to post bond = false imprisonment) Assumption not sufficient, need an actual or apparent physical barrier or by overpowering physical force or by submission to duress or by taking a person into custody INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS Fletcher points (1) Outrageous conduct (2) Intention for or reckless disregard of the probability of causing emotional distress (3) Ps suffering severe or extreme emotional distress (4) Actual and proximate causation by conduct Eckenrode v. Life of America Insurance refused to pay, economic coercion to force into compromise (liable for emotional injury) Chuy v. Philadelphia Eagles read in newspaper he had disease, doctor wrongly told paper (liable b/c disregard of high probability of emotional distress) TRESPASS TO LAND (protects prop rights, exclusive poss. Of land. Intentional b/c purposefully stepped on the land (does not need to 3

intend to trespass or even know the entry is wrongful, or an entry) Mistake doctrine bear consequences of mistake Dont need to prove damages or unreasonable invasion Trespass must be by a thing (not light) An actionable invasion of a possessors interest in the exclusive possession of land is a trespass; an actionable invasion of a possessors interest in the use and enjoyment of his land is a nuisance. Nuisance 2 years damages Trespass 6 years damages Nuisance defendant cause a substantial, unreasonable interference with the plaintiffs quiet use and enjoyment of real property. Dont need physical entry Amphitheaters v. Portland Meadows horse track lights into drive in movie (nuisance, not trespass) Martin v. Reynolds Metal dust (fluoride particulates trespass) TRESPASS TO CHATTELS AND CONVERSION Chattels-moveable items of property-neither land nor buildings Conversion-wrongfully using property for ones own purpose or altering/destroying it Intentional interference with personal property. Proof of damages - Actual deprivation, cost of being without Conversion: intentional interference or destruction of property such that owner cannot use. Fair market value, b/c must be replaced Trespass to chattels Less substantial interference to property Conversion Interference enough to make D pay for the property (must be deprived) IP protected if: (1) arranged at some cost and sold as commodity (2) formulated w/ labor and inventive genius (3) constitute instruments of fair and effective commercial competition Pearson v. Dodd copied and replaced files (no conversion b/c not deprived)

DEFENSES (plead or lose, D has burden) CONSENT (void if coerced, duress, or incapacity to give ie minors, intoxication) Can be objectively manifested Unconsented medical treatment is battery Misrepresenting consent voids the consent Exceeding consent voids the consent 4

 Neal v Neal sex affair (not battery b/c must affect essential nature of consented contact) NOT a defense if deliberate, willful or with a reckless disregard for safety. Ie sports where fight is more than consented to contact Overall v. Kadella hockey game (disregard for safety of other player) Consent to illegal act neither consenting party can sue for damages (restatement) (except in statutory cases like rape) Duty to disclose (ie sexual disease) Restatement of Torts 2nd A consents to sexual intercourse w/ B, who knows that A is ignorant of the fact that B has a venereal disease. B is subject to liability to A for battery. SELF DEFENSE AND DEFENSE OF OTHERS Reasonable: (1) Reason for force? (2) Force reasonable? (3) How long necessary for reasonable force? Property owners: (higher value on human safety than property rights) Deadly force to protect property only when life in danger Recovery of property in hot pursuit; shopkeepers use reasonable means (UCC can recover goods as long as no breach of peace) use of force to cause death only warranted when threat to personal safety justifies self defense) dangerous device only if trespasser committing a felony of violence, or felony punishable by death, or tres. Is endangering human life. Notes from book on self defense b. Self Defense and defense of others D has right to do what seems reasonable necessary to protect himself against threatened attack, whether it is real or not, provided reasonable belief that the danger exists)
Self defense v retaliation SD can be asserted only to prevent or resist an attack, not retaliate only use that amount of force that he reasonable believes is necessary to prevent the attack. If he uses excessive force he is liable for the excess but does not lose the privilege altogether. Can use force only long enough that it is necessary to defend yourself Deadly Force: only if he reasonable believes that doing so is necessary to resist an attack of deadly force. Even if faced with deadly force, person being attacked cannot use more force than he reasonable believes is necessary to prevent the attack. Retreat or stand and fight? Most courts allow defender to stand and fight, as long as defender is using non deadly force. Deadly force may not be used if a completely safe retreat is available, but one defending himself against deadly

force may stand and kill is he has any reasonable doubt as to the safety of retreat. Even when a safe retreat is available a defender threatened with DF need not flee from his home or place of business prior to using deadly force. SD can be asserted as a privilege for conduct that would otherwise be actionable battery, assault, false imprisonment, intentional infliction of emotional distress, trespass to land or chattels, or conversion. SD can be used to prevent a battery, assault, false imprisonment, negligently caused bodily injury, or even bodily injury innocently caused or threatened by the person against whom the privilege is asserted. Can use force to protect others from attack Most courts only require that the person exercising the privilege act on a reasonable belief that force is necessary. By entering field of play, a player manifests consent to many contacts. But not all imaginable contacts. If contact is accidental, it is governed by law of negligence. If intentional, is it within the boundaries of the implied consent. Intentional contact that violates a rule of game designed to protect players safety will generally be beyond consent.

Sports

Fights in a boxing match, consent. Consensual fighting in anger, sometimes defense ok, sometimes the fight breaks the law by being a breach of the peace, so the crime voids the consent defense. Either party can recover. Uncontested attack can be met with self-defense.

NECESSITY Can use private property in time of necessity but liable for damage Can run through anothers land to escape NEGLIGENCE AND STANDARD OF CARE Cause of action: must prove all 5 (judge decides (1) jury all others) (1) Duty to conform to standard (2) Breach (didnt exercise reasonable care, negligence) (1) Negligence per se (2) Rules of law (3) Proof of negligence 6

 (1) Direct evidence (2) Circumstantial evidence (3) Res ipsa (3) Cause in fact (causal link) (4) Legal causation (limits on liability) (5) Damages Negligence if not exercising reasonable care under all the circumstances HAND FORMULA B<PL negligence if burden less than probability of risk (cost can be social etc, not just $) Grace & Co v City of LA old pipe in harbor (only reasonable precautions required) Reasonable care Reasonable care is question of fact for jury Fact finder must determine What defendant actually did Reasonable under all circ. Foresight standard, not hindsight Departure from industry custom is evidence, not proof of neg. Analysis when std. of reasonable care is breached
All the circumstances Emergency Hand formula Foreseeable risk Custom Compliance with statute does not guarantee reasonable care

REASONABLE PERSON Standard of caution = ordinary prudence used by ord. person , cant be judged on each persons degree of judgment. But by reasonable pers. St. Roberts v. State of LA blind guy knocked over man (ordinary precautions of reasonable blind man) Adult activity standard Where a child's activity is not an adults-only activity, and there is no innocent victim, the exception to the rule holding minors to a different standard of care than adults is inapplicable Strait v. Crary drunk kid falls out of window (not an adult activity, doesnt apply) Generally inferior or superior abilities, insanity or intox, not taken into account. Actors special skills or experience will be taken into account when conduct judged. But not held to higher standard. 7

 VIOLATION OF STATUTE (does not prove neg. must also be contributory Negligence per se (violation of statute) (1) whether injured person falls w/in class of people intended to protect (2) whether harm complained of was harm intended to guard against Exception when more dangerous to follow statute Telda v. Ellman walking down wrong side of road (statute fixes no definite standard of care) more dangerous on correct side Gorris v. Scott animals on ship must be in pens w/ holds statute, sheep washed over but statute not meant to protect that, meant for disease trans. Potts v. Fidelity Fruit banana spider bite (statute not meant to protect worker) Zerby v. Warren death by glue sale (statute meant to protect children, from this exact harm) Cont. neg. not a def. RES IPSA LOQUITUR (speaks for itself, circumstantial) gets u to jury trial Requirements: (1) accident must be of kind that ordinarily does not occur in absence of negligence (2) caused by agency or instrumentality w/in exclusive control of D (3) must not be due to voluntary action of P Colmenares Vivas v. Sun Alliance Insurance Co escalator halt and fall (1) yes, escalators dont do that (2) yes, applies even if D shares responsibility (3) yes, no evidence P caused it CAUSE IN FACT BUT FOR TEST Event would not have happened BUT FOR the conduct P must prove it is more probable than not that substandard conduct was the cause of the harm Proximate cause (1) must be cause in fact (2) foreseeability tortious conduct must be a factual cause of physical harm. (Bottle might have been thrown no matter what) Marek v. Southern Enterprises Inc fireworks in theater 8

(admission confers a duty to exercise ordinary care for patrons BUT FOR LIMITED PURPOSE SUBSTITUTES SUBATANTIAL FACTOR TEST (converging fires) Two causes bring event, either alone could have done it (but for doesnt work here) Basko v Sterling Drug Inc drug side effects from different manufacturers (entitled to recover if either drug could have caused the ailment and one of them was a substantial factor) ALTERNATIVE LIABILITY Conduct of two actors is tortious, harm caused by one, uncertainty who caused. Need to prove that they were neg. and a causal link between neg. and harm. They are all responsible. D has to prove wasnt him. All D must be in court, all must be negligent, and must be cause in fact link by one of them (burden shifts to D to prove who did it) Pennfield Corp v. Meadow Valley Electric Inc ventilation failed (alt liability n/a b/c cant prove who did it, doesnt apply when both actors are not tortious) CONCERTED ACTION (when you agree to act in concert, responsible for each others actions) can infer from parallel conduct Each conspirator is liable for the act Joint and separate liable. Can sue anyone for full damages. Can hold innocent party liable if you dont know who is resp. (courts dont like big numbers for CA) Bichler v. Eli Lilly and Co DES daughter, evidence of conscious parallelism (wrongfully acted in concert b/c paralleled in not tested) MARKET SHARE (most states reject) If industry conduct neg. Permits apportionment of liability among Dmanufacturers based on relevant market share. Cant prove who LOST OPPORTUNITY DOCTRINE (med mal) Grant v. American National Red Cross blood transfusion infection (Lost opp n/a b/c screening would not offer more than 30% chance of detecting HCV) 1. If theres a high likelihood (>50%) that something would have been successful if due care & diligence had taken place, then you should be able to recover fully. 2. If likelihood <50%: a) Some courts allow jury to find causation and award full loss b) Some courts grant damages equal to percentage chance destroyed by Ds negligence c) Some courts tell jury to ignore quantified chance and come up with their own valuation Increased Risk Theory 9

 APPORTIONING HARM CAUSED BY MULTIPLE TORTFEASORS Holtz: (1) when injury indivisible even though caused by successive accidents, P claim against tortfeasors w/o burden of proving the extent of damages caused by each (2) damages not apportioned on basis of fault, D jointly and severally liable for harms they caused or not (burden of proof on D to escape) CAUSED BY A COMBINATION OF TORTIOUS CONDUCT AND OTHER CAUSES Eggshell skull rule tortfeasor takes victim as found Damages must reduced to account for likelihood of injury otherwise Follet v. Jones car accident death but also had terminal cancer (proof as to decedents shortened life span could be supplied) D responsible for diff. in hastened death damages must be adjusted downward for probability that something other than tortious misconduct would trigger the injury Blatz v. Allina Health System bran damage b/c EMS did not arrive on the scene due to negligence (liable for damages directly caused by negligence, not accident) If cant separate damages, then liable for all LEGAL CAUSE UNFORESEEABLE CONSEQUENCES Unforeseeable extent of harm D responsible Unforeseeable mechanism of harm (as long as kind of harm is for.) D responsible Unforeseeable type of harm D responsible (Polemis) direct result, not responsible (Wagon Mound) unforeseeable The Glendola ship crashed into another that was carrying gasoline, crashed later due to original incident (liable for all that is direct consequence of accident Wagon Mound I oil spill from tanker, caught fire (not liable for unforeseeable consequences) more com. rule today fors/unfo Palsgraf v. Long Island R Co railroad platform fireworks drop. lady hit by scales aft. Expl. (negligence only to risk reasonably perceived in relation) no duty Foreseeable plaintiffs a) RULE: If it is not reasonably foreseeable that damages will occur, then there is no duty b) For a negligence action, P must show that there was a breach of 10

duty owed to her, not merely a general wrong to someone else c) DISSENT Due care seeks to protect society from unnecessary danger, not just protect one person. Proximate cause is really just practical politics, the courts want to make things fair. d) Unforeseeable Ps can win once in a while, but theres a higher proof level Edwards v. Honeywell Inc firefighter fell through floor and died, alarm company acted slowly (plaintiff not foreseeable enough) Hunley v. Dupont Automotive guy crazy after paint spill (no legal cause when physical harm is unforeseeable) Meyering v. General Motors kids threw concrete off bridge, busted sunroof (liability when negligence likely to result in the harm experienced) criminal act is not by very nature superseding cause. D may be liable if conduct sub fact. didnt need to anticipate rock, but that object could fall from above INTERVENING SUPERCEDING ACTS D1 neg act------(later in time) D2 neg/intentional. act---------Injury.
(intervening cause of d2 negligence/intentional cuts off d1 liability. Called superseding Unless d2 act is foreseeable, and d1s act increased the chance of d2s act.

RULES OF THUMB Subsequent medical injuries, liable for harm during treatment Rescue doct. If you create danger, liable for harm to rescuer EXPLICITLY POLICY BASED LIMITS DES Daughters policy LC line of no liability beyond daughter DUTY ISSUE (default general neg. duty) Heaven v. Pender if engaged in an activity that places others at risk of harm have a duty to use reasonable care to minimize the risk By engaging in an activity with the potential for harm to others, D has created a relationship with those the activity foreseeably endangers LIMITED DUTIES LD PRIVITY Insulates manufacturers from product liability if bought from a retailer MacPherson abolished privity for products liability Humanitarian exception when work is: (1) dangerously defective (2) inherently dangerous (3) imminently dangerous 11

Bush v Seco Electric Co bad conveyor belt by contractor (ongoing duty of care for contractors giving defective work) LD DUTY TO ACT No duty to act unless entered into conduct w/ someone Nonfeasance passive inaction Misfeasance active misconduct a failure to take positive steps to benefit others or protect from harm created by wrongful act of the D Volunteer exception (Good Samaritan exception) duty of care to not make situation worse, prevent others from rescue. Foreseeability of injury does not create duty to act Exceptions: (1) Prior conduct warn against danger created (2) Control instrumentality failure to control foreseeably dangerous instrument (like criminals) (3) Undertaking law enforcement duty to warn against danger if voluntarily assumed that duty to someone Relationship exceptions (control conduct of another): Parent and minor child Master and servant Possessor of land and licensee Person in charge of another with dangerous propensities (liable if guide, increased duty from special relationship, rendering service) LD MENTAL AND EMOTIONAL HARM If Defendant liable for an intentional tort will usually be required to compensate for emotional suffering, even in absence of physical injury. When D has caused bodily injury, emotional pain is an element of damages , parasitic claim. Can recover for int. IIED not NIED Exceptions: (1) Impact (need phys. Impact/injury to rec for emot. harm (2) Zone of danger (3) Bystander (emotional distress must be foreseeable) Foreseeability test emotional injuries reasonably foreseeable (1) Whether P located near scene (2) Whether shock resulted from direct emotional impact upon P from observance of accident (3) Whether P and victim closely related Physical manifestation requirement need real injury to recover Niederman v Brodsky Court abandons requirement of physical impact as a precondition to recover for damages proximately caused by the tort in only those cases where Plaintiff was in personal danger (zone of danger) of physical impact because of negligence and where plaintiff actually did fear the physical impact. 12

Sinn v. Burd saw daughter killed by car from porch (must see if injuries are reasonably foreseeable, zone of danger too restrictive) most states reject LD ECONOMIC LOSS W/O PHYSICAL INJURY Testbank ship crash spilling toxins into water and air Recovery denied for pure economic losses 1. State of LA. Ex Rel. Guste v. M/V Testbank Two ships collided and spill toxic chemicals. shut down all non-official business over. Most of the affected businesspeople sued the shipping companies. Those with pure economic loss denied recover. a) MAJORITY OPINION (1) RULE: P cannot recover for economic loss if that loss resulted from damage to property in which he had no proprietary interest (a) The physical consequences of negligence are usually predicable within a limited range, but the far-flung repercussions maybe open-ended (b) D is not liable to another simply because the injured person had a K the D did not know of (2) Economic losses not recoverable under the RULE may be the subject of first-party or third-party insurance. (3) The Majority thinks that this is a duty issue b) DISSENTING OPINION (Adopted by some courts, notably NJ) (1) Fairness Test: (a) The damage must be proximately caused by the accident (b) The damage must be foreseeable, (i) confining the scope of the claims to those arising from activities in process at the time of the accident, or (ii) to claims that can be proven with certainty (c) P must assert particular damage, not just any general damage (2) This rule is more modern and more fair because it imposes the cost of damages on those who caused the harm, is consistent with modern principles, (3) This was maritime law, so its not entirely controlling, but its VERY PERSUASIVE Moransais faulty house inspection (economic loss rule does not bar against professionals) Intervention by tort on contract breach when: (1) tort independent of breach 13

(2) economic loss rule only applies where the considerations are substantially identical to those underlying product liability analysis (3) well established causes of action in tort are exempted from rule (4) professional malpractice (stnd. Of their prof) LD OWNERS AND OCCUPIERS OF LAND Possessor of land: (1) person who is in occupation of the land w/ intent to control it (2) person who has been in occupation of land with intent to control it, if no other person has subsequently occupied it w/ intent to control it (3) person who is entitled to immediate occupation of the land, if no other person is in possession under (1) and (2) Leased land occupied by lessee not owner INJURIES OFF LAND (no duty for natural conditions, some states changing it) INJURIES ON LAND Trespasser enters/stays w/o any right or privilege to do so - occupier owes no duty to a trespasser except to refrain from injuring him by willful or wanton conduct - exceptions: 1) injured children; 2) occupier knows frequent/prolonged trespassing occurs (implied invitation) Licensee occupiers consent (guests) - reasonable care: 1) in conduct of activities on the premise if the danger is not apparent to the licensee; 2) to warn licensee of dangerous conditions that occupier knows about Invitee errand of potential economic benefit to the occupier or under circumstances implying a representation by the occupier that reasonable care has been used to make the place suitably safe - duty of reasonable care with respect to activities and with respect to conditions about which the occupier should have known - (Highest level of care) Some states no liability for open and obvious risks LIABILITY TO CHILDREN a possessor of land is subject to liability for harm to children trespassing caused by an artificial condition if (1) reason to know that children are likely to trespass (2) reason to know and which he realizes or should realize will involve an unreasonable risk to children (3) the children b/c of their youth do not discover the condition or realize the risk involved in intermeddling with 14

it or in coming w/in the area made dangerous by it (DUTY, ^^^) (4) Burden less than risk (BREACH, Hand formula) (5) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children (BREACH) DUTY TO PROTECT AGAINST 3rd PARTY TORTS AND CLAIMS If possible someone might commit tort b/c of you, reasonable steps to prevent it Stagl v Delta Airlines old lady knocked over by luggage (duty to maintain premises from reasonably foreseeable injuries) Delta argues that 3rd party action was proximate cause. Superseding event. no merit. Intervenor will not break the chain of causation where they are a normal foreseeable consequence of the situation created by the defendants negligence. ( McCarthy v Olin Corp death bullets (not liable for criminal misuse, no special relationship b/t manufacturer and murderer) bullets were meant to kill people, not defective. Leg can restrict classes of dang. things Braun v. Soldier of Fortune (unreasonable risk when openly solicits criminal activity, hand formula) general duty. Criminal act was foreseeable consequence of the publishing RISK UTILITY TEST Risk is unreasonable if it outweighs the utility of the negligent conduct. If burden of adequate precautions is less than the probability of harm * by the gravity of the injury that might result from unmodified conduct. MEDICAL MALPRACTICE PROFESSIONAL STANDARD OF CARE Duty for professional:
Knowledge skill ordinarily possessed in standard practice Honest good faith judgment for benefit of client Reasonable care and diligence

Expert testimony: (1) Court must decide if expert testimony will assist the trier of fact Court must determine whether the witness is properly qualified Expert in another field testimony ok if: (plaintiff must establish)
testifying expert is so familiar with the standard of a care applicable to the Ds specialty to render testimony as well informed as if he were practicing the same specialty; or

15

Whether the standard of care for the condition in question is substantially identical for both specialties

INFORMED CONSENT Duty: all significant medical info that is material to an intelligent decision (not EVERY risk) Risk must materialize or no legal consequence P must show w/ proper info a reas. Per. wouldnt have had procedure Procedure w/o consent that can be harmful can be battery more common, no misrepresentation but the P would not have consented if the physician had fully disclosed the risks. These are grounded in negligence rather than battery DAMAGES Nominal P wins intentional tort case without proving damages Trivial sum for cause of action when not entitled to compensatory Compensatory Pecuniary medical expenses, future earnings, lost income Non pecuniary consortium (husband/wife), pain and suffering Reducing awards (1) grant new trial on all issues (2) grant new trial on damages only (3) order a remittitur, new trial unless P agrees to remit part of award Cannot interfere with award unless verdict shocks the conscience and suggests passion prejudice or corruption on party of jury Cognitive awareness necessary for recovery for loss of enjoyment of life Compensatory damages for physical harms to property
Invasion of land: recovery is any diminution in the lands value caused by invasion. Plus value of Ps loss of use of the land. When chattel has been converted or destroyed: entire value at the time and place of tort Lost use of chattel: value of the use of which the plaintiff has been deprived

COLLATERAL BENEFITS Collateral source rule collateral benefits do not subtract from damages (not okay to recover more than full damages solely b/c insurance coverage) no double rec. PUNITIVE DAMAGES Guideposts: 16

 (1) Reprehensibility (neg. plus willful or wanton) (2) Ratio b/t punitive and compensatory (3) Other state penalties for same conduct Single digit ratios preferred State Farm v Campbell underpaying to meet financial limits Due Process forbids a state from awarding punitive damages for people not involved in litigation CAPS Statutory WRONGUL DEATH AND SURVIVAL ACTIONS Wrongful death damages (Heirs only defined by statute): (1) Pecuniary Loss of economic support, expenses (2) Non pecuniary Loss of society, companionship (1/2 the states) Consortium (husband/wife) Mental anguish Survival Claims (damages before death): (1) pain and suffering (2) medical expenses (3) lost income until death (4) lost earning for work-life expectancy McDavid v US pain and suffering of decedent (from time of injury to death) NOTES: Punative subject to tax. Compens. No. Interest starts at judgment Struct. Settlements: monthly payments to P VICARIOUS LIABILITY Respondeat superior held vicariously liable for damages done when relationship holds responsible (employer employee relationship) Scope of employment: (1) time and space limits authorized by the employment (2) purpose to serve the employer (3) act that employee was hired to perform Ira Bushey v US drunk seaman turned wheels flooded dock (not unforeseeable, liable for risks in public) NEGLIGENCE OF INDEPENDENT CONTRACTORS Employers typically not responsible for independent contractors Nondelegable duties doctrine: (1) affirmative duties that are imposed on the employer by statute, contract, franchise, charter, or common law 17

(2) inherently dangerous work Pusey v Bator hired security guard (inherently dangerous work)

AFFIRMATIVE DEFENSES based on Ps conduct Contributory or comparative negligence, avoidable consequences, mitigation of damages, imputed (responsible for someone elses) fault, and assumption of risk AD CONTRIBUTORY and COMPARATIVE NEGLIGENCE Contributory bars all recovery (4 states and DC) Comparative negligence reduces damages recoverable. P and D share losses Comp Neg relationship b/t P and D Ps conduct can go past trigger point, absolving D Comp Fault relationship b/t D and D (replace joint and several) Comp. negligence fails: P has 10% fault and 10,000 damage. D has 90% fault. and 1 mil. P gets 9,000, and D gets 100,000. This seems unfair on its face. Leads to MODIFIED comp. neg. ie 50% rule. Defenses to comparative negligence: P can show D acted: Willful & wanton Conscious disregard Last clear chance (opportunity to avoid, mostly abolished by modified comparative) Aggregate fault group Ds Hoffman v Jones car accident death, both drivers neg Preclusion doctrine an action by a P whose injury stems form the combination of Ds negligent conduct and the Ps illegal or highly immoral conduct gets thrown out negligence must be clear in intentional tort for defense) AD FAILURE TO AVOID CONSEQUENCES; MITIGATE DAMAGES Comparative (or contributory) negligence pre accident conduct by the victim that was a cause of the accident and hence of all of the injuries or damages Failure to avoid consequences pre accident conduct by the victim that did not cause the accident but that was a cause of some (or all) of the injuries of damages Failure to mitigate damages post accident conduct by the victim that was a cause of some of the injuries or damages Dare v Sobule motorcycle death from neg car turn no helmet (no statute requiring helmet, not comp neg) Hutchins v Schwartz car crash no seatbelt no statute (not negligence per se but reasonable person would wear seatbelt, foreseeable) 18

 AD ASSUMPTION OF RISK Express release (has survived comparative negligence) Against public policy? Voluntary? Words cover the situation?

Implied secondary. no longer exists in most jurisdictions. ( traditionally a complete bar to recovery). can fold the facts into comparative negligence doctrine argument) Knowing and appreciation of the danger Voluntary decision to encounter that danger

Implied primary (really a limited duty doctrine) (implied risks of the sport. Ski case. Risks foreseeable.

Holzer v Dakota Speedway wheel detached and injured, signed release pre accident (exculpatory clause releases liability) AD IMPUTED CONTRIBUTORY FAULT Responsible for actions of someone else Motor vehicle exception relationship to driver must be high, control cant be far removed White v Lunder boating accident (causal negligence of claiming spouse greater than denied recovery) AD STATUTES OF LIMITATIONS Single act starts immediately Continuous tort starts last injury Jolly v Eli Lilly DES daughter did not file on time after she found out Feltmeier v Feltmeier abusive relationship, sues for IED (continuous tort) AD STATUTES OF REPOSE Complete bar after a certain time, given to certain sectors ie medical field. AD PREEMPTION Vertical preemption: federal preemption of state tort law Horizontal preemption: federal statute trumps another federal remedy. Or state statute trumps another state remedy. Federal preemption: govt has brought forth under supremacy cause and 14th amend. Express preemption (congress addressing federal law as not only to be 19

minimum but a maximum to prempt state law) Express non preemption (aka savings clause, if one thing preempted, rest still retained) Implied conflicts Cant comply w/ state and fed Obstacle PE: state law would stand in was of full accomplishment of fed objectives Geier v Honda car accident w/o side airbags (fed statute preempt state tort law) AD IMMUNITIES STATE & GOVT Hicks v State sovereign immunity FED GOVT US v Gaubert suing Govt for losing banks money (regulators actions were directly related to public policy considerations) Policy based decisions: immune Operational decisions: not immune JUDICIALLY CREATED Feres military cant sue govt for negligence in duty US v Johnson coast guard helicopter crash while on search Was plaintiff engaged in activities that fell w/in the scope of the plaintiffs military employment? If no, no Feres bar Boyle negligent helicopter design Contractor defense govt specs, complies w/ specs, discloses hazards PUBLIC DUTY A special rule invoked to absolve governmental Ds from liability even when general duty principles would seem to make the potentially liable Riss v City of NY stalker and police ignored No public duty to provide police prot. To particular person RULE: If the government has voluntarily assumed a duty, and the failure to perform that duty puts a P in more danger than had that duty not been assumed, probably will be liability Federal tort claims act 1. District courts have jurisdiction of civil actions on claims against US 2. Tort claim must be presented within two years after claim accrues 3. US liable for compensatory damages only
4. Must file claim against appropriate federal agency first, if denied, then claim

against US. Must then file suit within 6 months after they deny it. Or can file within 6 months if they sit on it. 5. No jury 20

6. Liable to the same extent as a private individual would be liable in that state Exceptions a. Discretionary functions b. No claims for intentional torts. except: law enforcement can be for assault, false imprisonment etc. c. No claim for combatant activities of military during war. d. No claims arising in foreign country JOINT AND SEVERAL LIABILITY Contribution eliminates unfairness of J&S liability except when other D is a turnip or phantom Kaeo v Davis drunk guy driving on shoddy road Could sue city b/c limits to discretionary function cant make death traps) Notes: Before under joint and several: plaintiff could choose a tortfeasor, and recover completely. The tortfeasor, after satisfying the entire judgment could recover half of the amount from the other tortfeasor. (remember is P was even 1% neg. in some cases he couldnt recover at all) (most jurisdictions that have joint and several liability have contribution fault. Only pay what you are liable for. Unless the other tortfeasor is insolvent or a phantom, than D1 still has to pay all of it.) COMPARATIVE RESPONSIBILITY A. Contribution and Indemnity 1. Brochner v. Western Insurance Brochner performed a lot of craniotomies. Most were unnecessary. Finally, he performed on a patient, and she was injured. She sued the hospital, then settled with P and the hospital separately. The hospital and D sued P in an indemnity action. The court held that the only way a join tortfeasor can recover from another is for contribution. a) RULE: Join tortfeasors are subject to contribution among themselves based on their relative degree of fault. (1) Each tortfeasor pays only proportionate amounts related to fault b) Under old indemnity rules, a single tortfeasor could unfairly pay all or a disproportionate share of damage suffered by an injured party as a result of negligent conduct caused by two or more parties c) Modern rules would have each D pay a proportionate amount to their fault d) HOWEVER: Indemnity is preserved (in many states) where: (1) D is liable purely vicariously (respondeat superior, 21

Employer can sue employee for indemnification) (2) When an innocent retailer is liable for a manufacturers defective product (3) Where there is a K for indemnity Otherwise, its jettisoned for comparative fault contribution

EMPLOYEE/EMPLOYER premises defect (invitee on property) Defendant should not get benefit of workers comp, all damages put on D since double recovery otherwise (workers comp) Varela v. American Petrofina P got hurt while working on a piece of equipment owned by D. He was employed by 3rd party. The court held that an employers negligence may not be considered in a 3rd party action brought by an employee covered by workers comp. Workers Compensation Act Employees cannot sue their employer in tort when covered by the WCA. However, the employee may still recover from a third party! RULE: Where the Ds negligence is equal to or greater than that of the employee, the employee shall recover damages diminished only in proportion to the amount of the negligence attributed to the employee So in this case, since the WCA barred a course of action against Ps employer, D was barred from seeking contribution or measurement of liability from Ps employer RULE: In the event of recovery, the negligence 3rd party is barred from seeking contribution or indemnity from the employer, and the compensation carrier is entitled to subrogation MED MAL DEBATE DOC ARGUMENTS Lawyers w/o med training should 2nd guess performance of Dr Humans make mistakes, overworked Juries overly emotional, not competent Cases ruin reputation, even frivolous TRIAL LAWYERS Juries can judge issues of informed consent Insurance rates not tied to med mal investment cycles REFORM Caps, restrict informed consent of patients, health panels/courts before trials, curbs on attorneys fees, Im sorry laws (cant use admission of malpractice against Dr)

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