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TORTS I OUTLINE
CHAPTER 1: AN OVERVIEW OF MODERN TORT LIABILITY
OVERVIEW OF TORTS: Tort Law Concerned with liability for personal injuries and property damage, and provides compensation for harms such as mental distress, impairment of reputation, and non-tangible economic injuries. Burden of Proof: Preponderance of the evidence Largely a state common law subject 1. Where state legislation does not cover situations, legal precedent by the state courts of a state will decide the fate of parties involved (stare decisis) 2. Federal involvement mostly is concerned with the limits of the Constitution 3. Restatement of Torts is a highly persuasive authority for torts law 3 CATEGORIES: Intentional Injury, Failure to Exercise Care (Negligence & Recklessness), and Strict Liability Liability Based on Fault: Intentional torts, negligence and recklessness Competing Public Policy on Tort Law (pp. 7-10 SATL): -Basing liability on fault, liability proportional to fault, to deter accidents, cost of accidents should be spread broadly, shifting losses to deep pockets, foster predictability, facilitate economic growth, promote administrative convenience and efficiency, discourage waste of resources, accord due deference to executive & legislative branches, and full compensate victims Trends in Tort law: - Revolution in tort doctrine in mid to late 20th Century - Failure of care damages more receptive to plaintiffs in late 20th Century (70s to late 80s) - Pro-Defendant courts and tort law reform in state courts and legislatures in 90s to present

A. INTENTIONALLY INFLICTED INJURY Intent the requirement necessary to establish intentional torts; purpose or knowledge 1. Purpose personal desire on the part of the actor to produce a particular result; OR 2. Knowledge- actor is substantially certain that a particular result will occur, EVEN if that result is not desired Garrat v. Dailey (Supreme Court of Washington, 1955) A 5 yr. old boy moved a chair out from under an elderly woman while she was trying to sit down. The woman sued the boy for battery.

2 The Supreme Court of Washington held that the child was liable for battery if he either desired for the woman to hit the ground (purpose) or was substantially certain that she would suffer a forcible landing (knowledge). On remand, the trial court concluded that the elderly woman had begun a slow process of sitting down, and the boy knew with substantial certainty the woman would fall. The boy was held liable.

Vosburg v. Putney (Supreme Court of Wisconsin, 1891) A school boy deliberately swung his foot across the aisle to touch a classmate (Putney), and subsequently caused severe injury to Putney. Because the defendant intended to cause un-consensual contact (a result prohibited by the law of battery), he was held liable for the damages, even though the defendant did not intend to cause such serious harm to the plaintiffs leg. B. ACTIONS BASED ON LACK OF CARE NEGLIGENCE & RECKLESSNESS 1.Negligence failure to exercise reasonable care under the circumstances; conduct which creates an unreasonable risk of harm If the risk can be reasonably perceived, the actor muster exercise due care to prevent the risk from coming to fruition Plaintiffs may seek negligence when it is impossible to prove an intentional act (since there was no purpose or knowledge intent), but may be able to prove negligence Primary factors to consider for lack of care are: 1. Foreseeable likelihood that it will result in harm 2. Foreseeable severity of the harm that may ensue 3. Burden that would be borne by the person and others if the person takes precautions that eliminate or reduce the possibility of harm Doe v. Roe (Court of Appeals of California, 1990) The defendant knew he had herpes at the time he had sex with the plaintiff. Because the asymptomatic transmission of herpes was foreseeable, the defendants failure to take precautions or disclose the disease was negligent. Cohen v. Petty (Court of Appeals of D.C., 1933) **Example of a plaintiffs failure to carry the burden of proof of negligence The driver of a car was unexpectedly stricken ill, and suddenly exclaimed to his wife, Oh Tree, I feel sick and then fainted. The plaintiff, a passenger, was catapulted from the drivers (defendant) car when it crashed, and sued for negligence. The plaintiff failed to prove negligence because she had no evidence the car was driven at an unreasonable speed or that the defendant could have anticipated the seizure he had. The court held that there was no reason to foresee the danger (the fainting), the failure to take precautions was not a failure to exercise due care.

3 2. Recklessness more blameworthy conduct than negligence Subjectively defined: Conscious disregard of known risk of serious harm Objectively defined: extreme lack of care Precaution that would eliminate or reduce the risk of harm is so slight relative to the magnitude of the risk, and failure to avoid such harm is reckless (Could have been used in Doe v. Roe) Subject to punitive damages like intentional torts, but negligence cannot Easier to establish negligence, but easier to establish recklessness than an intentional tort 3. Contributory Negligence, Comparative Negligence and Comparative Fault Violenti Non fit injuria: To one who is willing, no harm is done Contributory Negligence: Plaintiffs failure to exercise care for personal safety or selfprotection for himself contributed that plaintiffs injury or loss. USE SAME ELEMENTS OF NEGLIGENCE AS YOU WOULD AGAINST D In common law states, an affirmative defense (100% bar to recovery) used by defendant to completely bar recovery by plaintiff despite fault by defendant In a majority of states, a partial defense used by defendant to prove partial or majority of plaintiffs fault contributed to his injury, and bars some or all recovery Applies to negligence, recklessness, and strict liability Does NOT apply to intentional torts -Pure Comparative Negligence: A contributorily negligent plaintiff is not barred from recovery, but damages are reduced in proportion to the plaintiffs fault A plaintiff 65% responsible for an accident can recover only 35% of any damages sustained -Modified Comparative Negligence: There is a 50% threshold which bars recovery to any plaintiff if his fault exceeds that percentage; a plaintiff below 50% liable for the injury will recover proportionate to his fault A plaintiff 65% responsible cannot recover; but a plaintiff 49% responsible for his injury can only recover 51% of the damages sustained Comparative Fault: Contributory negligence may be invoked to offset liability for recklessness, negligence (pure or modified) and strict liability. Does NOT apply to intentional torts Partial defense in non-common law states Texas is Modified Comparative Fault 4. Assumption of the Risk: Applies to negligence, recklessness, and strict liability At Common law, a full defense (100% bar to recovery) for defendant to negligence, recklessness, or strict liability In a majority of states, a partial defense for defendant to negligence, recklessness or strict liability

4 - Can be 100% bar to liability in some situations for comparative states **Exists if the Plaintiff 1. Subjectively appreciated the danger 2. Voluntarily chose (NOT coerced) to confront it; AND 3. Manifested a willingness to relieve the defendant of any obligation to exercise care OR had no expectation that care would be exercised on his behalf

Contingency Fee Contracts Used predominantly in tort law cases, gives a lawyer a financial interest in his clients case that is dependent upon its success. If the lawyer wins the case and recovers money for the client, the lawyer gets to keep a percentage of the recovery ---generally 30-35% The contract will usually stipulate no upfront fee to be paid to retain the tort case attorney under contingency fee contracts C. STRICT LIABILITY Strict Liability: Liability without fault 1. Products Liability: liability to manufacturers for harm caused by defective products 2. Respondeat Superior: Employer liability imposed for the torts of their employees within the scope of employment Let the master answer Depends on the time and place of the tort and whether the employees conduct was actuated in part to serve the business purposes of the employer Employer NOT usually liable for employees intentional torts committed outside scope of employment 3. Affirmative Defenses: Consent, assumption of risk, contributory negligence, or comparative fault Hossenlopp v. Cannon (Supreme Court of South Carolina, 1985) Dog Biting Case The court adopted a rule of strict liability (in absence of legislation) when it held that a dog owner was liable for a dog bite inflicted by his own dog on another, regardless of whether the owner knew that the dog had a tendency to injure or had committed prior injurious actions D. CONSEQUENCES OF CLASSIFICATION OF A TORT 1. Scope of liability: An intentional tortfeasor is more likely to be found responsible for subsequent injuries suffered by a victim than one who is sued for negligence

5 2. Workers Compensation: In states that have adopted workers compensation, persons injured in on-the-job accidents are compensated pursuant to special statutory schemes, rather than by tort law A covered employee whose injury arises out of an injury from the scope of his employment is entitled to a reward from his employers insurer 3. Punitive Damages: Damages intended to deter the defendant or others from committing similar tortuous acts; available only in the most egregious cases, available in Intentional Torts: Assault, battery, trespass to land, trespass to property, false imprisonment and conversion Recklessness Other acts where evidence establishes a high degree of blameworthiness; NOT FOR NEGLIGENCE 4. Liability Insurance: Insurance that pays amounts which the insured (owner of policy) becomes liable to pay accident victims Mostly covers the costs of defending tort actions on a policy holders behalf, such as providing an attorney to handle the claim against the policy holder Most liability insurance policies do NOT cover intentional torts committed by policy holders **The language of most policies gives the right to decide whether to settle to the insurer, but the courts, noting the conflict between the interests of the insurer and the insured, have created a cause of action for bad-faith conduct in settling. -Bad-faith settling: When the insurer fails to act reasonably in deciding whether to reject a settlement offer by the plaintiff against the policy holder, the insurer will be liable for amounts in excess of policy limits. No court has yet held insurer strictly liable for settling within the policy limits whenever a judgment exceeding that limit is awarded Crisci v. Security Insurance Co. of New Haven (Supreme Court of CA, 1967) 1. The plaintiff (Crisci) was an owner of an apartment complex where a tenant was injured and sued the plaintiff for negligence. The plaintiff asked her insurance to settle by it and the defendants (Security) attorneys warned the defendant of a possible large verdict. 2. The jury gave a verdict far past the plaintiffs policy limit. The plaintiff suffered mental distress and was forced to sell all her possessions to cover the verdict. The court held that an insurance company had breached its duty to consider the interests of the insured in proposed settlement limits, and that the insurer would be liable for all costs past the policy holders limit and her injuries suffered. First Party Insurance: Liability insurance that creates a form of loss-spreading -Example: life insurance, medical insurance, fire insurance, and collision/ comprehensive coverage for automobiles

6 - No fault automobile insurance is first party insurance that is used to displace tort system in some states; owners give up right to sue but insurers cover victims damages 5. Parental Liability for Torts of Minor Children: General Rule: A parent is NOT liable for the torts of a minor child by the mere fact of parentage Possible Bases for Liability: 1. Vicarious Liability: employer (parent)/employee (child); principal (parent)/agent (child) 2. Personal Liability: Concerted action (parent encourages childs tortuous behavior); failure to control child by parent(s) 3. Statutory Liability: State laws limit the amount of damages parents can be liable for in certain cases (ex. TX statute limiting damages parent is liable for to property damage committed by minor children) Why Sue a child? 1. Damages may be covered by parents insurance 2. Child may have non-exempt assets 3. Plaintiff may obtain childs assets in the future (But judgment may be dischargeable in bankruptcy) 4. Statute may transfer liability to parent in whole or in part Some states do NOT extend liability for torts committed by children under the age of five

CHAPTER 2: BASIC INTENTIONAL TORTS

A. THE CONCEPT OF INTENT -Purpose: Desire on part of the actor to bring about a certain result; OR -Knowledge: Actor knows with substantial certainty that his act will bring a prohibited result **Basic intentional torts require intent, either by purpose or knowledge on the part of the actor 1. Intent to Injure: Proof of intent to harm is NOT prerequisite to intentional tort liability Lambertson v. United States (US Court of Appeals -2nd Circuit, 1976) 1. A federal government meat inspector (defendant w/ US govt.) in horseplay jumped on the back of the plaintiff and accidentally caused the plaintiff to strike a meat hook and sustain major injuries.

7 2. The plaintiff sued for negligence, but the court held that the defendant had committed battery and the intent necessary for battery is the intent to make contact without consent, NOT the intent to cause injury. 3. The plaintiff was unable to recover for negligence since the court held the act was a battery, and the Federal Torts Claim Act only allows the federal government to be sued for negligence by employees acting in the scope of their employment, NOT intentional torts. Degrees of Probability: The difference between knowledge (intentional tort), recklessness, and negligence is a matter of degree. 1. If purpose or knowledge is proven on the part of the actor, then liability for an intentional tort is present. 2. As the probability that intent is less present or the consequences will follow, the actor may be liable for recklessness. 3. When intent is not present, but an unreasonable risk is created, the probability of consequences will place the actor liable for negligence. Motive to commit a particular result or harm to the victim is NOT required in an intentional tort Intention has to do with the results, not just the acts.

2. Intent and Mistake: Mistake of fact does NOT absolve the actor of liability if the intent to cause the result was wrong. Ranson v. Kitner (Appellate Court of Illinois, 1888) 1. The defendants shot the plaintiffs dog by accident, thinking that the dog was wolf. The court held the defendants liable for trespass to chattels even though the defendants were acting in good faith since the intended result of the bullet striking the animal was wrong, not the inadvertence of killing the dog. 2. **The fact that a defendant makes a mistake in good faith, even if its reasonable or unavoidable, does not by itself serve to absolve the defendant of liability, so long as the result was intended. Mistake and Privilege: If the defendant can assert privilege to committing the intentional tort, that privilege to the act in question will defeat the plaintiffs action, not withstanding proof of intent. -Examples: Self-defense, defense of property, defense of others, recapture of chattels, public necessity, private necessity Induced Mistake: Conduct based on a mistake induced by the plaintiff does NOT ordinarily give rise to liability. -Examples: Cop arresting a person who misrepresents himself as the suspect the Cop was looking for; no liability for false imprisonment.

Volitional Act Requirement: There is NO tort liability for an involuntary act. -Examples: 1) Defendant unintentionally touches plaintiffs face as a result of plaintiffs abrupt movement passing by the defendant (on subway); 2) If a 3rd person takes hold of the defendants hand and strikes the plaintiff with it, the voluntary act is that of the 3rd person, thus the 3rd person will be liable for battery

3. Intent and Insanity: If the defendant is capable of entertaining intent, and in fact entertains it, the same intent that would be sufficient to hold a sane person liable will be used, and liability will be imposed regardless of whether the insanity produced the intent. McGuire v. Almy (Supreme Judicial Court of Massachusetts, 1937) Insane Case 1. The defendant, an insane woman, struck and injured her nurse (plaintiff) with a piece of furniture after threatening that if anyone entered the room she would kill them. Defendant claimed the insane cant be liable for torts they commit, and that the nurse consented by entering the room 2. The court held that the defendant, although insane, could be liable for damages since the defendant had the ability to entertain intent, the same intent of normal defendants. 3. The court also held that consent does not always come from the intentional incurring of risk. In regards to the insane, the harm, stress of situation, or expectation that others will perform their duties resting on them must be considered. 4. **Authority case as to whether an insane person can be held liable for an intentional tort. Intoxication: Courts have been unwilling to allow persons charged with intentional wrongdoings to raise a defense based on intoxication; if the defendant was able to form a tortuous intent, its irrelevant that the intent would not have existed But for the intoxication

4. Transferred Intent: If defendant intended to commit one of the five trespassory torts, but actually commits another of the five, the intent is transferred to the trespass that was actually committed. 5 Original Trespasses Derived from Writ of Trespass: If the tort intended and the tort resulting are both one of the five intentional torts (from writ of trespass), then there is sufficient intent by the actor to impose liability for the resulting tort.

9 -Writ of Trespass was the original tort of old English common law where the five intentional torts are derived. The five require proof of actual damages (except for trespass to chattels in some cases) Assault Battery False Imprisonment Trespass to Land Trespass to Chattels

1. 2. 3. 4. 5.

THE INTENT TRANSFERS ONLY IF THE DEFENDANT ACTS WRONGFULLY Keel v. Hainline (Supreme Court of Oklahoma, 1958) 1. The court held a defendant liable in case where the defendant intended to strike or scare someone on the other side of the classroom by throwing an eraser (assault or battery), BUT the eraser thrown hit the plaintiff in the eye, blinding her (battery). 2. The court reasoned its decision by stating that the defendant intended to hit/injure another involved in the game, but that intent to commit battery transferred when it hit the plaintiff instead. **In cases like Keel v. Hainline, the innocent unexpected victim would be better off suing for negligence or recklessness than an intentional tort based on transferred intent. By suing for negligence or recklessness, the plaintiff will likely be able to get better compensation since insurance or vicarious liability will be available to plaintiff. The idea behind transferred intent is that the defendants intended act is so wrongful that the defendant should not be permitted to escape liability for damages that in fact were inflicted merely because the defendant did not fully anticipate the event that caused them injury. Most modern transferred intent cases involve assault and battery, but it can also arise for the others as well. **Transferred intent does NOT apply to negligence or recklessness Brudney v. Ematrudo (US District Court of Connecticut, 1976) 1. A police officer (defendant) who was in the midst of a riot, attempted to use reasonable force to liberate another officer from an attack by a demonstrator and accidentally struck a third person (plaintiff) with his nightstick. 2. The court held that the officer was not liable for assault and battery because he was acting reasonable in the course of his duty to protect a fellow officer, and therefore there was not a wrongful action which could have transferred the intent to the plaintiff. Since the officers acts were reasonable, there could be no negligence either.

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B. BATTERY AND ASSAULT BATTERY: 1. Intent (purpose or knowledge) to cause contact (or transferred intent) 2. Un-consented harmful or offensive touching (ie. unreasonable) of the plaintiffs body or his effects Consent is presumed to minor touchings warranted by social usages prevalent at the time and place. -Examples. Tap on shoulder to obtain information, casual jostling in a crowd to make passage Noble . Louisville Transfer Co. (Court of Appeals of KY, 1952) 1. The court held that the taxi cab driver was not liable for battery when he steadied a little girl who was vomiting by placing his finger on her shoulder. **When considering un-consented physical contact, look at the: 1. the relationship of the parties involved 2. the availability of alternatives 3. the degree of force used 4. Forseeability of touching at certain locations (clubs, crowded bars, crowded sidewalk) Plaintiffs Effects: Liability for battery is imposed to unconsented contact to every part of the body AND anything attached to the body or practically identified with it -Attachments: chair one is sitting in, anything in ones hand, a car/bike/ motorcycle one is riding in or on, breaking of window nearby plaintiff, giving poisonous food to plaintiff, or intentionally throwing plaintiff from bed of ones truck, a purse in hand, camera in hand -Non-Attachments: a bus, plain, or large boat one is riding in, Pickard v. Barry Pontiac-Buic, Inc. (Supreme Court of RI, 1995) 1. The defendant was held liable for battery in an incident where the defendant violently pushed away the plaintiffs camera in her hand, and assault because of his shouting and quick approach to the plaintiff. A battery can be committed even if the defendant sought to merely advance the interests or act in furtherance of some other important goal. **If the act is intentional, unconsented, harmful/offensive to the plaintiff, its a battery. -Good Samaritan help to a against plaintiffs objections is battery A battery must be an affirmative act; inaction by defendant is NOT battery Moore v. El Paso Chamber of Commerce (Court of Civil Appeals of Texas, 1949)

11 1. During Western Week, El Paso Rodeo & Livestock Show officials were taking people to their corrals to encourage them to buy rodeo tickets. 2. An agent of the defendant (El Paso Chamber) chased after the plaintiff, and in her flight from him she ran into a glass door. Defendant, liable through the agent, was found liable for battery because the intent for assault transferred to battery indirectly caused. 3. The fact the girl failed to exercise care on her own behalf was irrelevant since, contributory negligence is not a defense to an intentional tort. A plaintiff does not have to be aware of the offensive touching at the moment it occurs Standard for Determining What is Harmful or Offensive for Battery 1. For Offensive: What would an ordinary person find offensive, UNLESS the defendant knows that the plaintiff has particular sensitivity and the defendant exploits it 2. For Harmful: If the contact causes pain or illness; or if the structure or function of any part of the plaintiffs body is altered in any way regardless of harm -Ex. If a doctor performs a surgical procedure not authorized by the plaintiff he will be liable for battery even if the procedure benefited the plaintiff or was to save his life. (some exceptions) Battery Damages: 1. Nominal Damages: ($1); vindicates technical invasion if no damages are proven; cannot be awarded if compensatory is awarded, but may be given with punitive in minority of courts 2. Compensatory Damages: medical expenses, lost wages, future medical expenses, pain and suffering; most common to be awarded 3. Punitive/Exemplary Damages: For egregious conduct, meant to punish defendant and make an example of him; a majority of courts will not award this type of damages unless compensatory is awarded as well.

ASSAULT: 1. Intent (purpose or knowledge) to cause apprehension of contact (or transferred intent) 2. Defendant has present apparent ability to cause wrongful contact 3. Threatening gesture by defendant (usually required) 4. Plaintiff has well-grounded reason to have apprehension of un-consented imminent contact ** A tort victim unaware of an offer of physical contact prior to its infliction suffers ONLY a battery, and NOT an assault Ex. If the plaintiff knows the defendants gun is not loaded, there is no assault.

12 ** If the victim is cognizant of an imminent threat, but the perpetrator stops before the blow is struck, there ONLY an assault, and NOT a battery Western Union Telegraph Co. v. Hill (Court of Appeals of Alabama, 1933) 1. Present Apparent Ability Case 2. The court held that the employer could not be liable for its employees assault because the employees conduct was beyond the scope of his employment responsibilities. 3. Since the employee had present apparent ability to reach across the counter to touch the woman, and it was claimed they tried to do so, the employee alone was responsible for the assault. Present apparent ability : Assault can only be actionable if the defendant has the actual ability to commit the threat or battery that the plaintiff is in apprehension of. 1. There is no assault if the plaintiff mistakenly believed the defendant lacked the ability to commit a battery 2. It is only necessary that the plaintiff believe the defendant has the ability to commit the battery. The defendants knowledge is irrelevant. **IF the defendant succeeds in placing the plaintiff in apprehension, it is irrelevant if the defendants acts would not have placed a person of ordinary courage in such apprehension. Threats of future harm are NOT actionable for assault -A threatening gesture with present ability is ordinarily required for assault to be actionable Conditional threats to commit a battery depends on whether the defendant is privileged to enforce through physical contact or a threat to do that action. -Ex. Defendant who threatens to shoot intruder in his house will not be liable for assault since he is privileged to make that threat Verbal qualifications attached to what otherwise would be a threat may not be assault -Ex. If I were ten years older, Id beat your ass Standard for Apprehension : Generally, what would be aroused in the mind of a reasonable person EXCEPTION: If the defendant exploits a known timidity or fear of the plaintiff Standard for Imminent Contact: Whether the plaintiff expects contact to occur without substantial delay, unless evasive action is taken immediately. -Plaintiff need not be in fear of harm, only in apprehension of contact -Plaintiffs courage in face of imminent contact does not absolve defendant of liability Mere verbal soliciting of another to engage in sexual relations is NOT assault -Unwanted physical advance is a battery -Threat of unwanted physical advance is an assault

13 Damages for Assault: 1. Nominal Damages: Awarded if no damages or harm are proven 2. Compensatory Damages: Awarded if the plaintiff for mental disturbancessuch as fright, humiliation, or if the act resulted in illness 3. Punitive Damages: Awarded only in cases of egregious conduct by defendant

C. TORT OF OUTRAGE: INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS Tort of Outrage Elements: (Prima Facie Case) 1. Intent (Purpose or knowledge) to cause emotional distress OR recklessness with respect thereto; 2. Extreme and outrageous conduct 3. Causation (Links 2 to 4) 4. Resulting in severe mental distress NO TRANSFERRED INTENT Standard for Extreme and Outrageous Conduct: Must be beyond all possible bounds of decency, atrocious, or utterly intolerable in a civilized community -**Severity is such that no reasonable person would be expected to endure it -Trivial upset or minor discomfort will not support a cause of action -This is a very demanding standard by the courts Harris v. Jones (Court of Appeals of Maryland, 1977) 1. A General Motors supervisor viciously taunted the plaintiff employee over the plaintiffs speech impediment he had had for many years. The plaintiff had seen a physician over the nervousness resulting from the defendants treatment. 2. The court held that the plaintiff had not presented any evidentiary particulars which would establish the intensity and duration of emotional distress. 3. The court reasoned that it was necessary for the plaintiff to prove the severity of the stutter was worsened by the mental effects from the defendants conduct. Motive of the defendant will play a crucial role in the courts assessment of whether liability should be imposed for intentional or reckless infliction of severe mental distress Abusive Language: Liability does NOT extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities 1. Slocum v. Food Fair Stores of Florida (FL Supreme Ct., 1958) -An employee of the store told a woman you stink to me, but the plaintiff was not able to recover for intentional infliction of emotional distress even though she suffered mental anguish that resulted in her heart attack soon after.

14 2. Exceptions: (A) Common carriers, utilities, and innkeepers are NOT immune from mere insults that cause the tort of outrage; (B) Defendants may be liable for their mere insults against plaintiffs where the defendant exploits a known sensitivity of the plaintiff for a prolonged period. Domestic Violence and Harassment : Some courts hold that abusive conduct by a spouse which goes far beyond the trials of everyday life may be actionable; Key to this finding by courts is the tolling of statutes of limitations if the wrongful behavior (assault/ battery) was continual of a given period of time. 1. Feltmeier v. Feltmeier: -A husband engaged in a long pattern of physical and mental abuse of the plaintiff during the marriage and after the divorce. The abuse involved battery, confinement, isolation and stalking. -The court held that this pattern constituted as a continual tort which allowed the tolling of the statute of limitations of the conduct for the entire marriage. -Continual Torts allow the statute of limitations to begin running at the date of the last injury or when the torts cease to occur. 2. Some states have statutes that allow the tolling of statutes of limitations but vary on where the extreme conduct begins 3. Sexual Harassment may be actionable for intentional infliction of emotional distress (most fall under Civil Rights. Act) 4. Stalking may be actionable for tort of outrage, especially where statutes create a civil cause of action Debt Collection: NO LIABILITY for reasonable attempts to collect debt, regardless of the fact that the attempt may be expected to, and usually does cause emotional distress. -Exception: Continual egregious conduct in collecting the debt may make the creditor liable. -Fair Debt Collection Practices Act now governs liability

Bystanders and Third Persons: Where extreme and outrageous conduct is directed at a third person/bystander, the actor is subject to liability only when he intentionally or recklessly causes severe emotional distress to: (a) a member of a persons immediate family present at the time (regardless if the distress results in bodily harm; and (b) any other person who is present at the time if such distress results in bodily harm.

Taylor v. Vallelunga (District Ct. of Appeal of CA, 1959) 1. A young girl witnessed her father being physically beaten by the two defendants, and as a result suffered emotional distress.

15 2. The court dismissed her complaint because it found from the evidence that the defendants had no knowledge of her presence, and the court held that knowledge of the 3rd partys presence will make the defendants liable for that persons emotional distress. -Now, not all bystander cases require proof/knowledge of presence Constitutional Restrictions: Conduct that would otherwise be tortuous may be protected under the free-speech or free exercise of religion clauses of the First Amendment. -Ex. Hustler Magazine v. Jerry Falwell: The court invalidated Falwells tort of outrage suit because to hold defendants caricature was an opinion protected by the 1st Amendment.

What is Emotional Distress: Fright and shock at the time of the accident Humiliation resulting from defendants actions Unhappiness and depression over inability to lead ones life prior to injury Anxiety about the future or past Anger over the injury Compensation for Tort of Outrage 1. Key Concerns: Genuineness of claim (some jurisdictions require proof injury) Scope of Liability 2. Compensation is available when: Incidental to physical injury tort (Parasitic Damages) Incidental to a non-physical injury tort (Assault, libel/slander) Reckless or Negligent infliction of emotional distress (limited) Intentional Infliction of Severe Emotional Distress (Single suit) 3. Damages: Compensatory, and punitive in egregious acts

D. FALSE IMPRISONMENT Elements for Prima Facie Case: 1. Intent (Purpose or Knowledge) to confine; 2. Un-consented detention within boundaries fixed by the defendant 3. Apparent lack of a reasonable exit 4. Use of unreasonable force, threat of force, or assertion of legal authority by the defendant, AND 5. Harm to the plaintiff AND/OR Knowledge by the plaintiff of the confinement

16 False Imprisonment will not lie if the defendants conduct is merely reckless or negligent; IT MUST BE INTENTIONAL! Transferred Intent applies False Imprisonment It makes no difference that the defendant was acting in good faith (except to prevent punitive damages) May be proven by direct evidence There must be KNOWLEDGE OF CONFINEMENT for liability to be imposed and harm to plaintiff for False Imprisonment Boundaries of Confinement: (Unconsented Intentional Confinement) 1. May be large or even mobile 2. Confinement must be complete, NOT partial---no action if the defendant merely obstructs the plaintiffs travel in one direction, if the plaintiff is otherwise free to go 3. Bird v. Jones (Q.B., 1845) -The defendant had erected a fence to enclose a portion of a highway for boat race, which the plaintiff had climbed over. The court found the defendant was not liable for false imprisonment because the plaintiff was not detained within the fixed boundaries, as he was allowed to leave from whence he came. 4. If the apparent exit is unreasonable it entails: a likelihood of harm to the plaintiff, or the plaintiffs property, or to another person or property of others, or it would infringe upon ones dignity---then there is still false imprisonment Retention of Property: False imprisonment may result from the defendants exercise of control over the plaintiffs property if the plaintiff elects to remain with the property Ex. Holding ones car and car keys to prevent one from leaving a teen lock-in; retention of a womans purse to keep her from leaving CONSENT WILL BAR ACTION FOR FALSE IMPRISONMENT Unlawful Force, Threat of Force, or Assertion of Legal Authority 1. Plaintiffs confinement must be involuntary 2. If confinement is caused by physical force 3. False Arrest is a variety of false imprisonment created by one who unlawfully asserts legal authority in order to confine the plaintiff; False Arrest may be done by the police or private citizen Enright v. Groves (Court of Appeals of CO, 1977) -Policeman was liable for false arrest after he took plaintiff into custody after she had refused to produce her drivers license; the court found the act unlawful because the policeman did not have probable cause found from any statute pertaining to the circumstances of the arrest. -There is no privilege to intentionally give police false information; doing so may give rise to liability if it results in another being falsely arrested.

17 4. By express or implied threat of force Future threat of force does NOT count Morales v. Lee (Court of Appeals of Texas, 1984) -There was no false imprisonment because the defendant doctor had merely threatened to call the police and have the plaintiff employee arrested if she did not remain in the office. -If the plaintiff felt confined because of a tort of assault, that question will be left to the jury Probable Cause/Reasonable Suspicion: Precludes liability on a law enforcement officer if there was a false arrest; -EXCEPTION: If there was probable cause or reasonable suspicion to arrest but during arrest there was excessive force or unreasonable delay in bringing defendant before a magistrate Some courts hold that where there is a relevance of guilt, there can be NO false arrest Shop-Keepers Privilege: A false imprisonment action may be barred by a suspected shoplifter by the privilege of the merchant has to detain, for purposes of investigation, one reasonably suspected of theft---See Chpt. 3 Malicious Prosecution Distinguished: A private person who initiates or procures the institution of criminal proceedings against someone not guilty of the offense commits the tort of malicious prosecution if: (A) the actor lacks probable cause and acts for purpose other than bring the offender to justice; and (B) the proceedings have terminated in favor of the accused Definition of Physical Force in Relation to Confinement: All that is necessary is that the defendant to have the ability to use force if the plaintiff attempts to escape. -EXCEPTION: If the plaintiff knows that the defendant does not have the ability to carry out the threat, there can be no physical force to confine; Ex. Plaintiff knows that the defendants gun is a toy gun, not a real loaded one. Moral pressure and economic coercion are normally insufficient predicates for false imprisonment Ex. 1: A person remaining at a location merely to clear away suspicion of wrongdoing or to avoid making a scene Ex. 2: Remaining at ones job site for fear one may lose ones job if they leave

Defenses to False Imprisonment Courts are reluctant to impose liability upon persons who assist parents in their efforts to discipline or control an un-emancipated child minor child. An extreme religious organization or cult, which engages in brainwashing or other forms of coercive conduct, may be subject to tort liability; however its very limited based on the First Amendment. Peterson v. Sorlienson (Supreme Court of Minnesota, 1980)

18 1. Parents, whose adult child who had allegedly been brainwashed by a cult, forcibly abducted their daughter for the purpose of deprogramming her. 2. Although the confinement was initially non-consensual, it matured to a point where the girl, at least for several days, consented by failing to avail herself of numerous opportunities to escape 3. The court held that because there was a considerable period where the plaintiff child did not leave, that constituted waiver of the earlier forced detention, and barred her from action for false imprisonment against her parents. 4. The court reasoned that limitations upon the childs mobility did NOT constitute meaningful deprivations of personal liberty. (This is VERY DEBATABLE)

E. TRESPASS TO LAND a.k.a. TRESPASS Q.V.C. (quare clausum fregit) Elements for Prima Facie Case of Trespass to Land: 1. Intent (Purpose or knowledge) to be present; transferred intent also applies 2. Physical presence on, above, or under the land of another without the privilege or the owners consent Key/Testable Examples: 1. Taking an unauthorized shortcut across the plaintiffs lot 2. Tunneling under it (ie. mines, pipelines) 3. Building a structure on it, no matter how far over it comes upon ones land Indirect Invasions are Actionable Trespass q.v.c. 1. Throwing trash onto the property of another without personally crossing over on to that property is actionable 2. If A pushes B onto Cs land, A commits a trespass Since B had no intent to enter, B will not be liable unless he fails to leave in a reasonable amount of time Trespass q.v.c. is present even if it is a benefit to the plaintiff 1. Cutting a neighbors grass 2. Placing a newspaper in front of the neighbors door Reasonable and good faith mistakes by defendant as to ownership or permission to enter is IRRELEVANT and defendant is still liable for trespass q.v.c. EXCEPTION: If the mistake is a result of the inducement by the plaintiff, the defendant is not liable for trespass

Trespass q.v.c. may be brought by:

19 1. One who is in occupancy doing those things which would be understood as exercising exclusive control over the property 2. If no one is present, the one who last ceased occupancy without intent to abandon 3. If not #1 or #2, then the one who has the right as against all other person to immediate occupancy Some courts hold that there can be reckless or negligent trespass q.v.c. Tort of Nuisance : Considered in tandem with trespass q.v.c., is an action which protects the possessor from non-trespassory interferencewith the use or enjoyment of land -Examples: constant loud noise, toxic odors from anothers property, extreme bright lights, violations of municipal zoning ordinances

F. TRESPASS TO CHATTELS AND CONVERSION Classification of Intentional Interference with Personal Property: Two Actions: 1. Major Interference: Conversion 2. Minor Interference: Trespass to Chattels TRESPASS TO CHATTELS (TRESPASS DE BONIS ASPORTATIS, d.b.a.) Elements for Prima Facie case for Trespass d.b.a. : 1. Intent (purpose or knowledge) to affect the chattel 2. Minor interference with the plaintiffs possessory interest by: (a) dispossession; (b) Use; (c) Intermeddling (physical contact with chattel) AND 3. In the absence of dispossession (from which damage may be inferred), proof of damage is required in the form of: (a) substantial loss of use OR (b) impairment of condition, quality, or value Dispossession is Committed Intentionally by: (Must be substantial interference) Taking without permission - stealing Obtaining by fraud or duress buying watch with a bad check Barring access to the chattel changing lock on plaintiffs office Completely destroying setting fire to anothers car (conversion) Taking into the custody of the law impounding an automobile Damages for Trespass d.b.a or Trespass to Chattels: Actual diminution (decrease from original value) in the chattels value caused by the minor interference Ex. Getting into the wrong car brought up by the valet at a hotel where the car is an exact match to the car owned by the defendant

20 Mistake of fact or good motives do NOT preclude a finding of intent to commit trespass to chattels or conversion -EXCEPTION: Privilege such as public or private necessity (see chpt. 3); unintentional harmful interference with personal property may be actionable under negligence, recklessness or strict liability **CompuServe Inc. v. Cyber Promotions, Inc, (US Dist. Ct. S. Ohio, 1997) 1. Defendants sent unsolicited email advertisements to thousands of Internet users, many of whom were customers of the plaintiffs on-line computer service. Defendant continued the soliciting despite the plaintiffs demand to cease that activity. 2. Defendants conduct constituted trespass to chattels because, even though the defendant did not physically damage the plaintiffs computer equipment, it did diminish the equipments value by demanding disk space and it drained its processing power. 3. The defendants conduct was also actionable for trespass d.b.a. because it harmed the plaintiffs legally protected interest in its relationships with its customers, for many of the customers had complained about receiving the defendants unsolicited emails. 4. KEY TO TRESPASS d.b.a. analysis and to CYBER TORT analysis Comparative Fault is NOT a defense to trespass d.b.a. or conversion and will NOT preclude plaintiff from recovery In regards to CompuServe, if there had been a warning by Plaintiff to defendant, would there be actionable trespass d.b.a.? 1. If intruder KNOWS his actions are wrong and interfering with CompuServes use of its equipment --- No warning necessary from plaintiff 2. If intruders actions are causing harm to the plaintiffs equipment WITHOUT HIS KNOWLEDGE --- Warning necessary from plaintiff

CONVERSION Major Interference with Personal Property: CONSIDER -- Extent of actors exercise of dominion or control over the plaintiffs chattel Actors intent to assert right to the chattel inconsistent with the plaintiffs right to control Actors good faith Extent and duration of resulting interference Harm done to the chattel Inconvenience and expense caused to the plaintiff Elements for a Prima Facie Case for Conversion: 1. Intentional (Purpose or knowledge) or transferred intent

21 2. Actors exercise of dominion or control over a chattel that 3. Seriously interferes with the right of another to control that chattel belonging to him where 4. the actor is required to pay the other the full fair market value of the chattel Examples of Conversion/Lack Proof of Its Key Factors: Zaslow v. Kroenert (Supreme Court of CA, 1946) 1. The court rejected the plaintiffs argument that the defendants removal and placing of the plaintiffs furniture into a storage facility constituted conversion. 2. The court reasoned that the defendant had not asserted no claim of ownership, had forewarned the plaintiff of his intention to remove the furniture to a new location, and advised the plaintiff how he might recover the furniture. 3. Key Distinction: If the plaintiff had not been informed of the location of the furniture, or it had been moved a great distance by defendant, or destroyed, the defendant would have likely been liable for conversion. Russel-Vaughn Ford, Inc. v. Rouse (Supreme Court of Alabama, 1968) 1. The defendants salesman intentionally refused to return the plaintiffs car keys despite repeated demands by plaintiff. Even though the interference with plaintiffs dominion over his property was relatively brief, the court held that the facts justified a finding of conversion. 2. The court held that the plaintiff was not required to exhaust all possible means of gaining possession of his chattel withheld by defendant. 3. **This case demonstrates that if the interference or assertion of dominion over a part of a chattel is slow and difficult, the whole item is converted, but if the part can easily and quickly be replaced, only that part is converted. 4. ** Bad faith by converter is a key factor in finding of conversion Plaintiff MUST DEMAND RETURN OF CONVERTED CHATTEL before the defendant can be held liable -Proof of a refused demand is not required, if the demand would have been useless (such as from a thief) -EXCEPTION: If the defendant refuses the plaintiffs demand initially in order to verify the plaintiffs right to the chattel, the defendant cannot be liable Ex. Lost and found at a department store or restaurant

Bona Fide Purchaser: A person who obtains property through theft or fraud is liable for conversion just as much as a person who later acquires goods with notice of their illegitimate origin. A defrauder has voidable title to goods acquired by fraud EXCEPTION: (UCC) If the bona fide purchaser buys the in good faith from one who acquired it improperly or by fraud, may NOT be sued for conversion.

22 Bailees and Conversion: Bailees are temporary holders of bailors property, and the bailees are required to inquire into the title of the items delivered to them. 1. When the Bailee is Liable for Conversion: A bailee with knowledge or has reason to know that the bailor has no right to deliver the chattel becomes liable for conversion to the true owner by receiving the goods. A bailee with notice of multiple claims to a chattel is under an absolute duty to redeliver the chattel to its true owner 2. When the Bailee is NOT liable for Conversion: A bailee without notice that a chattel is lost or stolen is not liable for conversion merely by reason of receiving the chattel. A bailee who, without notice of other claims, redelivers the chattel to its bailor is not liable for conversion even though the bailor is not the rightful owner. A bailee who redelivers a chattel to the true owner is not liable to actual bailor for conversion. 3. A bailees remedy, when faced with adverse claims, is to deposit the goods in court Damages for Conversion: Converter must pay the normal fair market value of the converted good When the good increases in value between the time of conversion and time of the trial--the plaintiff should be able to recover the value of the increase. -General View: Allow the highest intermediate value between the time of conversion and expiration of a reasonable time for making replacement, assuming the replacement is possible. If the chattel has no market value , or the market value would not be adequate compensation, there may be recovery of its value to its possessor Sentimental Value is ordinarily NOT compensated ---May apply more so in conjunction with tort of outrage against the converter Punitive damages may be awarded in cases involving particularly outrageous conduct or a converter with long history of tortuous behavior Most states limit recovery for the tortuous death of a pet to the animals fair market value ----A few states have statutes that permit damages for loss of companionship Evidence of the cost of repairs is admissible if the compensation is sought for damage to property Replevin: Action brought by plaintiff against the converter in order to recover the possession of the chattel in specie (as it currently is) and to recover incidental damages Ex. Art theft Owner may wish to recover the painting stolen and also sue for the damages caused by actors conversion. Conversion and Demand for Return: Demand for return by plaintiff to converter is NOT generally required by courts in order for the plaintiff to seek recovery of damages or replevin

23 EXCEPTION: Plaintiff is REQUIRED to demand return from a bonafide purchaser A qualified refusal by converter constitutes conversion

What May be Converted ?: Prevailing view is that any kind of tangible property may be converted The taking of intangible property is conversion ONLY if the property is the type customarily merged in or identified with some document Ex. Sketches, stock certificates, computer programs, circulation lists, or literary manuscripts, or an electronic computerized entry (recent view) Kremen v. Cohen (US Court of Appeals -9th Circ., 2003) 1. A third person fraudulently induced a domain name registrar to cancel the plaintiffs registration of the name sex.com and transfer the name to him. 2. The court concluded that the registrar was liable for conversion as was the third person, for conversion because the registrar gave away the plaintiffs intellectual property. 3. The court reasoned that the electronic database domain names with computers connected to the Internet satisfied that document requirement. Electronic form rather than ink was held to be irrelevant to conversion. The plaintiff ordinarily must have a property interest in the document in question to be able to state a claim for conversion

CHAPTER 3: DEFENSES AND PRIVILEGES

A. CONSENT VIOLENTI NON FIT INJURIA Violenti Non Fit Injuria: To one who is willing, no wrong has been committed Consent: A total bar to liability to ALL TORTS; plaintiffs consent to an otherwise tortuous act negates the wrongful element of the defendants conduct and prevents the existence of a tort. Burden of Pleading and Proving: Burden of proving lack of consent rests with the plaintiff for all intentional torts EXCEPT Trespass to land (Ds burden) Types of Consent (3): 1. Actual/Consent in Fact: Plaintiff is actually willing for the conduct to occur (not necessarily the consequences of the conduct). Is manifested by-- Words Go ahead, hit me! Affirmative action pointing to ones chest to indicate where to be hit Silence or inaction under circumstances indicating willingness not objecting to romantic advances by ones companion

24 2. Apparent Consent: Found whenever the plaintiffs conduct reasonably leads another to believe that the plaintiff has consented, even though the plaintiff did not actually consent. A reasonable person would assume plaintiff consented by his actions or inaction. Arises where one fails to object to a well-established and customary practice Participation in a certain conduct Football 3. Implied Consent: No consent at all; a legal fiction and policy determination created by the court that the stated invasion should not be actionable. May occur in relation to Medical emergencies A court may even reject Informed Consent Good Samaritan cases Capacity to Consent: In cases involving actual or apparent consent, the individual must have the capacity or ability to appreciate the nature, extent, and probable consequences of the decision. In absence of capacity, consent will NOT bar recovery. May Occur where In extreme cases of drunkenness, or forced inebriation, the plaintiff may be held to lack capacity Youth Infancy Mental deficiency Old agedness Medical disability Consents Relationship to Assumption of the Risk: Volenti non fit injuria may arise in nonintentional torts; in these cases the principle is used as partial or full defense to carelessness in order to reduce or bar recovery. Scope of Consent: An action will be barred ONLY if the invasion is within the scope of the plaintiffs consent; for consent to be effective, it must be consent to the conduct that actually occurs or is substantially similar to that kind or is reasonably implied. Actual/Consent in Fact: Davies v. Butler (Supreme Court of Nevada, 1979) 1. An initiation into a college drinking society by one of the initiates would NOT bar an action based on negligence and recklessness, even though the decedent had voluntarily participated in the initial stages of the induction. 2. The court stated that the continued and arguably forced drinking after the point of extreme intoxication was enough to declare the decedent lacked capacity. Fraternity Hazing: Most jurisdictions have outlawed hazing by classifying the conduct as criminal misdemeanor unless the acts constitute a felony. It is defined as forcing another to engage in prohibited activities or humiliating experiences in order to be initiated or remain in a student organization. Apparent Consent: OBrien v. Cunard S.S. Co. (Supreme Judicial Ct. of MA, 1891)

25 1. A woman who held up her arm to be vaccinated was held by the court to have consented to what otherwise would have been a battery because there was nothing in her conduct to indicate a contrary intent. 2. Key to this finding was her participation, having obvious notice (she was standing in line watching others get a shot), and choosing to give her arm to the doctor. Implied Consent: Miller v. HCA, Inc. (Supreme Court of Texas, 2003) *** 1. The court took the approach that medical emergencies should constitute implied consent, but rejected the notion of informed consent and held that a hospital could provide emergency resuscitative treatment to a premature newborn baby without parental consent. It spoke only in the terms of the right to act in the face of emergent conditions. 2. The court found that the parents prior refusal to provide consent for resuscitation was irrelevant because the child could not be fully evaluated for medical treatment until its birth and therefore the parents earlier decision was not fully informed. 3. The court held that there could be no liability for negligence or battery based on the authorized resuscitation of the child derived from the emergent circumstances requiring the immediate decision of the physician. 4. Thus, there was not time to consult the parents, and consent was implied. Consent Based on Mistake: (Modern/Gen. View) Any mistake by the plaintiff as to material fact which causes him to consent, and this mistake of fact is known to the defendant, destroys the plaintiffs prior consent. If there was a mutual mistake of fact: consent is NOT destroyed and the claim may still be brought to court. Common Law/Tradition Standard: 1. If mistake was concerned: the court looked at the nature of the invasion, the harm reasonably expected, and the facts that made the invasion harmful or offensive. -Mistake was fraud in factum, and the consent was destroyed if and only if the mistake was known to the defendant. 2. If the mistake was related to a collateral matter (plaintiff reasons for consenting): The mistake was called fraud in the inducement and the consent was valid. DeMay v. Roberts (Supreme Court of Michigan, 1881)*** 1. Key case for analysis for consent based on mistake and patients right to privacy. 2. A physician in a house call to plaintiffs residence, brought with him a young man without medical qualifications in order to assist the physician in the delivery of the plaintiffs baby. 3. The court held that because the assistants lack of training was not disclosed to the plaintiff, the plaintiffs consent to his presence and touching of her was invalid to bar her tort action.

26 4. The plaintiff had argued that but for her mistake of fact that the assistant was a qualified medical assistant, she would not have consented to his presence. Consent and Duress: Consent is NOT effective if its given under duress, such as the use of a threat of force against ones person or property or against ones family or friends. EXCEPTION: Courts are reluctant to except argument that consent is invalid as a result of economic duress. Ex. Giving consent to undergo a polygraph test in order to maintain ones job will not be allow a false imprisonment action Consent to a Criminal Act: (Gen. View) Consent to engage in criminal conduct is valid; Ex. If two people at a bar fight, there can be no assault or battery actions brought by either party since both consented to fight. B. DEFENSE OF SELF AND DEFENSE OF OTHERS Privileges and Defenses: Typically must be pleaded and proven by the defendant (affirmative defenses), and if they are not proven then they are not apart of the case. If the defendant successfully carries the burden of proof for his defense or privilege, then his tort liability will be precluded or at least limited in amount. Key Questions to Ask in Regards to Privileges and Defenses: 1. Who may assert the privilege? 2. What belief is required? 3. What is the effect of mistake of fact? 4. How much force can be used? 5. Are there special rules to the privilege or defense SELF DEFENSE 1. Allowed to anyone other than the aggressor anyone other than the person who wrongfully initiated the confrontation. 2. May be used when one reasonably believes or anticipates immediate physical harm to his self 3. Only reasonable force is allowed in relation to the situation **A reasonable mistake as to the necessity or degree of force required does NOT destroy the privilege of self defense **Use of deadly force is only justified by an imminent threat of deadly force, and retreat from the situation may be required. (depends on common law of that jurisdiction) -In duty to retreat jurisdictions, that duty may not be present when one is attacked at home or at work (ones castle), unless the place was also the home or workplace of the assailant

27

What is reasonable force? Consider Factors such as--1. Age of the opposing party 2. Size of opposing party 3. Relative strength of the parties involved Silas v. Bowen (US Dist. Court for SC, 1967) 1. The court held that because of the disparity in the size of the parties, the belligerence of the plaintiff towards defendant, and the force used (firing shotgun in proximity to plaintiff, which accidentally hit him) was reasonable under the circumstances. 2. The aggressor may not use privilege of self-defense. Status of the aggressor may shift as a confrontation escalates. -If B, the victim of the initial unlawful attack responds by using excessive force, B is liable for the injuries the original aggressor sustained as a result of the unreasonable force. -The original aggressor may regain the right of self-defense by communicating to the plaintiff an intent to cease the attack; thus if A starts fight and B defends himself, but A says I quit and B continues punching, A can then use selfdefense SELF-DEFENSE DOES NOT PERMIT RETALIATION -Once there is no longer a threat of continued harm, the privilege terminates Mere words, unaccompanied by a hostile act, do NOT justify self defense EXCEPTION: Insulting words may give rise to consent; You couldnt hurt me if you tried, go ahead, hit me! would be consent that would bar action for an intentional tort

DEFENSE OF OTHERS: 1. Allowed to anyone 2. May be used when on reasonably believes that force is necessary to protect another (even a total stranger) from physical harm 3. Reasonable force may be used in relation to the circumstances -Some jurisdictions hold that the intervener must step in the shoes of the one being assisted ---if the one being assisted has no right of self-defense then the interveners conduct is not privileged, regardless of what the intervener believes. Mistake of Fact Split authority as to whether reasonable mistake destroys privilege Drabek v. Sabley (Supreme Court of Wisconsin, 1966) *** 1. The defendant apprehended a young boy who had been throwing snowballs at passing cars and who might have been expected to continue to do so.

28 2. Justice Fairchild held that it was unreasonable as a matter of law to drive the child several miles to the police station after taking him into custody. 3. The court held that the defendants claim of defense of others did not apply since there were less severe alternatives available (like taking child home) and therefore the defendant was liable for battery. C. PRIVILEGES RELATING TO PROPERTY DEFENSE OF PROPERTY 1. Entitled to possessor 2. Possessor may use reasonable, NON-DEADLY force to defend the property Reasonable mistake to the necessity or degree of force is allowed Mistake as to whether the plaintiff has privilege to interfere with possessors possession destroys the defense of property privilege A person cannot do indirectly (ex. Mechanical device) that which the person is not permitted to do directly Katko v. Briney (Supreme Court of Iowa, 1971) 1. Defendants rigged a spring-loaded gun to protect an unoccupied farmhouse from break-ins. 2. They were held liable to a trespasser who was injured by the gun, because deadly force may not be used if there is no threat to personal safety. 3. The Katko court held that giving notice of the intended use of a mechanical device does not enlarge the privilege. A possessors privilege to eject a person from property is restricted in that the possessor may not expose the person to unreasonable physical danger. Ex. A stowaway on a ship cannot be thrown overboard, but may be ejected at the next safe port.

RECAPTURE OF CHATTELS: 1. Entitled to the possessor 2. The possessor must be wrongfully dispossessed by fraud or force 3. Possessor may only use non-deadly force to recapture the chattel 4. ***THERE MUST BE PROMPT DISCOVERY and FRESH PURSUIT of the wrongful taker 5. ANY MISTAKE OF FACT DESTROYS PRIVILEGE Deadly force would ONLY be allowed in the instance that the possessor has prompt discovery, undergoes fresh pursuit, recovers his chattel, and is then faced with immediate threat of deadly force by the wrongful taker

29 A typical (non-fraudulent) conditional sale, does NOT justify assertion of the recapture privilege because the sellers dispossession has been freely consented to and the default by plaintiff was unfortunate development. Ex. Installment purchase of household goods, whereby plaintiff defaults on payments, does not allow defendant to recapture chattels EXCEPTION: If there is a contractual clause giving seller the right to enter upon buyers premises in case of default, will allow seller to repossess the goods in a peaceful, non-forcible entry.

PRIVILEGE TO DETAIN FOR INVESTIGATION (SHOPKEEPERS PRIVILEGE) 1. A shopkeeper may detain someone temporarily 2. in or near the store 3. Person detained must be suspected of theft (Not allowed to coerce confession, demand payment, place individual under arrest, or to publicly disgrace thief) 4. Detainee may only be detained for purposes of reasonable investigation If a request has been made to person to stay and has been refused, reasonable force may be used to detain the individual REASONABLE MISTAKE IS ALLOWED **Shopkeepers Privilege to investigate persons suspected of theft is extended to individuals other then shopkeepers Bonkowski v. Arlans Department Store (Court of Appeals of Michigan, 1968) 1. The court held that 30 feet away from the store was NOT too great a distance for the privilege to investigate by shopkeeper (or his agents) to be destroyed. 2. At some point the distance will become so great that Shopkeepers privilege will end and recapture of chattels privilege will begin.

D. PUBLIC AND PRIVATE NECESSITY Privilege of Necessity: Exists if its apparently necessary to invade upon the interests of the plaintiff (often an innocent third party) in order to prevent greater harm. Encompasses invasion of land, interference with chattels, and in some circumstances reasonable force against a person Privilege of private or public necessity is NOT dependent upon whether the action achieves the desired goal. -Surroco v. Geary (Supreme Court of CA, 1853) 1. The blowing up of the plaintiffs house did not stop the spread of the fire, but the privilege of public necessity precluded a suit in tort by the owner of the dwelling destroyed. PUBLIC NECESSITY: If the class of protected persons by the action of the defendant is the public as a whole, or a substantial number of persons 1. Anyone is completely privileged

30 2. Reasonable force may be used in relation to the circumstances 3. If the situation makes intervention actually or apparently necessary 4. It must be done to avoid imminent risk of harm to others within the community or a large number of persons within the community 5. Generally, no liability(actual damages) for Public Necessity Reasonable mistake does NOT destroy privilege of public necessity Some statutes and common law rules abrogate the requirement of compensation of the one who suffers as a result of public necessity -Wegner v. Milwaukee Mutual Insurance (Supreme Ct. of Minnesota, 91) 1. A city was required to reimburse a homeowner whose house had been destroyed by a police SWAT team who in the course of apprehending a suspect, destroyed the plaintiffs house. 2. Fairness and justice required that the homeowner not be forced to bear the entire cost of a benefit conferred on the entire city. THERE IS ONLY PRIVILEGE IF THE HARM PREVENTED IS GREATER THAN THE HARMED INCURRED BY THE PRIVILEGE Public necessity may be asserted by private citizens as well as by public officials The US Constitution requires just compensation if the government takes private property for public use Persons acting on behalf of the govt. may be protected by public necessity and statutory governmental immunity

PRIVATE NECESSITY: If the public interest is not involved, and the defendant acts merely to protect his personal interests or those of a few other persons. The actor/intervener is liable for actual losses incurred by the plaintiff EXCEPTIONS: 1. If the act is for the benefit of the plaintiff, the defendant owes no liability at all; Ex. If defendant takes plaintiffs scarf to wrap bandage around plaintiffs wound, defendant will NOT owe the plaintiff any damages. 2. If the plaintiff resists the assertion of the privilege by the defendant, the privilege becomes absolute, and no further compensation is required by the defendant for the reasonable harm inflicted thereafter. -Ploof v. Putnam (Supreme Court of Vermont, 1908) 1. A landowner had cast adrift a boat which had attempted to tie up at this dock during a strong storm. 2. The landowner was held liable for the consequential injuries and damages suffered by the occupants of the vessel after he cast the boat adrift. 3. In the absence of such resistance (resistance present in this case) a landowner may recover damages actually inflicted by anothers assertion of private necessity. -Vincent v. Lake Erie Transportation Co. (S. Ct. of Minnesota, 1910)

31 1. Where damage was caused to a dock owned by plaintiff by a ship owned by defendant that was moored there during a bad storm. 2. The court held that defendant should compensate the plaintiff for the actual damage to dock caused by its ship, but the defendant was not liable for trespass because one who has private necessity is allowed privilege to enter upon possessors property to protect his own property. Recapture of Goods on the land of another: The important difference between the status of one who is a trespasser on land and one who is on the land pursuant to an incomplete privilege is that the one with private necessity is entitled to be on the land. -Therefore, the possessor of land is under a duty to permit him to come and remain there and hence is not privileged to resist his entry. -Where the possessor of the land resists such a privileged entry, the actors use of reasonable force to overcome such resistance to his entry or remaining on the land so long as the necessity continues is completely privately privileged. Therefore he is not liable for harm so occasioned. -3 Key Rules to Consider: 1. If the goods came upon the land through wrongful conduct of the landowner, or with the landowners knowledge of wrongful conduct by a third person, the owner(possessor) may enter at a reasonable time, in a reasonable manner, and may use reasonable force to recover the goods--even if not it was not in fresh pursuit. 2. If the goods came upon the land through force of nature (wind blows kite on to neighbors land), or was wrongfully placed there by a third person without the landowners knowledge or consent---there is privilege of private necessity to allow possessor to enter on to the land to retrieve the goods but that possessor will be liable for actual damages, NOT trespass. 3. If the goods came upon the land of another with the consent or through the fault of their possessor, there is NO privilege to enter to receive that chattel and an effort to do so will be actionable for trespass. Ex. Kids hit baseball in neighbors yard on accident and the neighbor had warned the children not to play ball near his property. Recapture of Land: Most states hold that in order to recapture land from another who is wrongfully in possession, one must resort to the law to regain possession of said land.

E. UNLAWFUL CONDUCT Generally, a plaintiff is NOT barred from recovery merely because he was committing a tort or a crime himself at the time of his injury. EXCEPTION: Some jurisdictions, hold that recovery is barred if the plaintiffs injury is: 1. A direct result 2. of knowing participation

32 3. in a serious criminal act 4. involving prohibited (not merely regulated) conduct Barker v. Kallash (Court of Appeals of NY, 1984) 1. A 15 yr. old boy who was injured while constructing a pipe bomb was precluded from recovering from a nine year old who had supplied him with the gunpowder.

Privileges to Discipline: Parents are privileged to use reasonable force to discipline their children. How much force is covered by statutes in every state. General Justification of Unlawful Conduct: A person may commit a tort, but may justify it if the circumstances warrant the deliberate act by the defendant. Courts consider: 1. The need for the defendant to protect persons and property. 2. The defendants duty to aid in apprehending wrongdoers; 3. The manner and place of the occurrence of the unlawful conduct and 4. the feasibility of other alternative courses of action.

CHAPTER FOUR: DAMAGES

Jury Instructions on Damages: If the case is tried to a jury, the judge will instruct the jurors that if they find that the defendant is liable, they may determine the amount of money the plaintiff will receive. The judge will tell the jury what types of compensation is available for the tort action being brought Six Elements to Consider When Determining Damgages (from Anderson v. Sears): 1. Past physical and mental pain 2. Future physical and mental pain 3. Future medical expenses 4. Loss of earning capacity Approx. # of years worked, deduction of interest to be earned, and inflation buffer 5. Permanent disability and disfigurement 6. Hedonic damages loss of ability to engage in once enjoyable activities If necessary, the judge will instruct the jury whether, in the absence of proof of actual damages, a nominal award ($1), and/or whether punitive damages may be assessed. DAMAGES MUST BE PROVEN IN EVERY CASE -Plaintiff carries the burden of proving each of the elements of the tort, and that damages were caused by defendants conduct **An objection to the jury instructions may NOT be raised at appeal, UNLESS the error was first called to the attention of the trial court REMITTITUR AND ADDITUR

33

Remittitur: Motion used by defendant in order to remedy an excessively high verdict, and if granted by the trial court judge, will give the plaintiff the option of accepting a reduced amount of damages or trial court judge will grant a new trial. In a remittitur, the reduced amount is typically determined under a Maximum Recovery Rule Maximum Recovery Rule: The trial court judge will consider whether the verdict of the jury is equivalent to the highest award the jury would have reasonably been justified in making. If the verdict exceeds that amount, the trial court judge may reduce the verdict to the highest amount the jury could have properly have awarded. -Anderson v. Sears (US Dist. Ct.-E. LA, 1974) 1. The court denied a motion for remittitur because it found that a $2 million award to a seriously burned infant girl was less than the highest possible award supported by the evidence. Excessive Damages: If the award is against the weight of the evidence, a judge may order a remittitur -Absent consent for remittitur, a court lacks the authority to reduce a jury award. Additur: Motion used by plaintiff granted by trial judge in cases of excessively low verdicts for the plaintiff. Additur gives the defendant the choice of agreeing to pay a higher amount than awarded by the jury (amt. decided by trial judge) or being subject to a new trial on the question of damages alone. Federal courts can NOT use additur because the practice has been held to violate the right to a jury trial as guaranteed under the Seventh Amendment. Additur is unavailable in some states PAIN AND SUFFERING DAMAGES: Calculated damages for physical and mental pain and suffering A majority of jurisdictions allow per diem (calculated per day) arguments ---the plaintiff will argue that the jury should arrive at a damages total by multiplying the unit value by the number of units of time that the suffering may be expected to continue Some courts look other courts decisions on issues similar to the one they are dealing with (follow common law) Some states have caps on pain and suffering damages LOSS OF CONSORTIUM: Damages caused by defendants conduct that result in the loss of a spouses legal right to the company, affection, and service of the other spouse. It may be brought by either spouse In many jurisdictions, the children may bring the action for loss of a parents consortium In a few states, parents may bring it for their loss of a childs consortium and a sibling may bring it for loss of another sibling.

34 Damages: May include medical expenses paid for the injured spouse, cost of hiring someone to do the work of an injured spouse, and compensation for loss of companionship and affection.

MEDICAL MONITORING: Some courts allow an award of damages for medical monitoring, where the recovery of the cost of future periodic medical treatments intended to facilitate the early detection and treatment of diseases caused by exposure to toxic substances. Factors considered when instituting medical monitoring are: 1. Significance of exposure 2. Toxicity of the chemicals exposed to 3. Expert testimony regarding possible risk of disease caused by the exposure in the future 4. The seriousness of the disease COLLATERAL SOURCE RULE: Where the defendants liability is NOT reduced despite the plaintiff receiving compensation from a source wholly independent of the tortfeasor defendant. If the plaintiff has been compensated by personal medical insurance or any other gratuitous service for his injuries, the defendant still must pay the damages he caused. This rule has been extensively modified in jurisdictions that still maintain use of this rule. Helfend v. Southern CA Rapid Transit District (S. Ct. of CA, 1970) 1. The plaintiffs medical expenses had already been paid by his personal medical insurance company, yet the court held that he may recover the value of his damages regardless. 2. The court reasoned that there was no double-recovery because the plaintiffs insurance company was required to compensate the plaintiff as result of his premium payments. It held the plaintiff shouldnt be punished for having insurance. AVOIDABLE-CONSEQUENCES RULE: A plaintiff may NOT recover for any aggravation of damages which could have been avoided by the exercise of reasonable care after the legal wrong was committed by the defendant. Thus, if the seriousness of the plaintiffs injuries at the time of trial were a result of the plaintiffs unreasonable failure to obtain medical assistance, the recovery will be limited to the amount of damages expected to be incurred had the plaintiff reasonably sought treatment. In Determining What is Reasonable Post Accident Conduct: Consider--1. Risk of the treatment needed 2. Probability of Success of the necessary treatment 3. Expense of the treatment 4. Effort (needed to obtain the treatment) 5. Pain to be caused to the plaintiff by the treatment **Unreasonable failure to mitigate damages is a defense in a negligent action (but NOT recklessness actions or intentional torts)

35 **Intentional failure to mitigate damages is a bar to recovery in an intentional tort action. Zimmerman v. Ausland (S. Ct. OR, 1973) 1. The court said that in determining whether the plaintiffs refusal to submit to an operation that would have cured her knee injury was unreasonable, it was appropriate to consider such matters as cost, risk of harm, likelihood of success of the surgery, and the pain caused by the surgery. 2. The court held that the plaintiff was allowed to recover her verdict since she had substantial evidence to justify her failure to have the knee surgery.

PREJUDGEMENT INTEREST: Many states have by statute or common law, allowing the plaintiff to seek damages for pre-judgment interest in order to compensate the plaintiff for time waiting for trial. Rates vary among the jurisdictions that allow this. SURVIVAL ACTIONS AND WRONGFUL DEATH ACTIONS Survival Statutes: Statutes that provide that an action survives after the death of the plaintiff or the defendant. If the plaintiff dies, the claim is prosecuted by the estate. Pain and suffering damages may be awarded if the decedent survives or dies immediately. -If the decedent survives for some time then dies, the court will look at the decedents suffering prior to death -If the decedent dies immediately, many courts will allow juries to give damages for pre-impact terror Wrongful Death Statutes: Creates a cause of action for the benefit of a defined class of persons left behind when the defendant has tortuously killed someone. Companionship and Society: Most states in wrongful death suits allow for the recovery for lost companionship, guidance, society, or advice. -Statutes may allow for it expressly OR - By interpretation of Actual or Pecuniary damages -Pecuniary Damages: damages that can be estimated and monetarily compensated. -Gonzalez v. NY City Housing Authority (Court of Appeals of NY, 1991) 1. A wrongful death award to the independent, adult grandchildren of their brutally murdered grandmother was allowed because the grandchildren had received meals, advice, and guidance from the decedent. 2. The damages were held to pecuniary. Grief: Many jurisdictions in their wrongful death statutes allow for recovery for emotional grief or anguish---it may be expressed or implied from the statute.

36 LOSS OF EARNING CAPACITY: Where the plaintiff was employed at a fixed wage at the time of the injury, he may recover lost earnings equivalent to the amount of the fixed wages. Recovery for Impairment of Earning Capacity: Allowed when the plaintiff was employed on some basis not conducive to exact compensation OR if the plaintiff was unemployed at the time of the injury Factors Used By Juries To Determine Earning Capacity: 1. A history of earning, is useful but not essential 2. Mortality tables to assess loss of future earnings 3. The probability of the plaintiff being employed is taken into account (Ex. Health, personal habits, age, credentials) 4. An award of lost past earnings by may be enhanced by prejudgment interest 5. Generally, an award of lost future earnings is reduced to present value. Inflation- Should be taken into account calculating both future earnings and discount rates, OR left out of the both calculations (depends on the jurisdiction) -OShea v. Riverway Towing (US 7th Cir., 1982) 1. A riverboat cook injured on the job sought damages for lost earning capacity and the court took the approach of adding inflation to both lost future earnings and discount rate. TAXATION OF AWARDS: An award of compensatory damages in a personal injury case is NOT taxable. Punitive damages and compensatory damages are viewed as income and TAXABLE when they are damages involving non-physical injuries, such as harm to ones reputation or emotional distress. -Punitive damages are ALWAYS taxable There is taxation on general settlements and lump sum awards in tort actions -EXCEPTION: Taxation can avoided if there is a structured settlement Wrongful Death Cases: Where damages are calculated based on what the decedent would have contributed to the survivors, courts usually admit evidence regarding the decedents tax liability on his future earnings. -In re Air Crash Disaster Near Chicago (US 7th Cir., 1986) 1. The court held that failure to give such instruction was an error which raised the possibility that the jury would inflate the award on the assumption that part of it would go to taxes. In federal courts and a majority of states, the jury is advised on whether certain damages will be taxable or not.

PUNITIVIVE DAMAGES Punitive/Exemplary Damages: imposed in cases involving egregious conduct in order to punish or make an example of the defendant, NOT to compensate the victim.

37 May require clear and convincing proof of egregious conduct; OR For intentional acts of malice; OR Willful indifference, reckless conduct or gross negligence

Assessment of Punitive Damages Depends on the State: Not available in some states unless compensatory damages are also assessed Some states allow punitive damages to be assessed with nominal damages Are insurable in some states May be limited in amount in some states by legislative created caps (statutes) Are NEVER available for mere negligence May necessitate a bifurcated trial (one part on liability, second part on damages, including punitive damages) Punitive damages may be subject to partial forfeiture (remittitur) Punitive Damages Factors (for consideration by judge/jury) Magnitude of risk (created by defendants conduct) Awareness of risk Duration of failure to act Compliance with regulations Purposeful creation of danger (for plaintiff) Need for deterrence (of conduct similar to defendants) Wealth of defendant (What amount of damages would punish rich defendant) Punitive Damages: Constitutional Due Process Must be Observed: Respondeat Superior liability is permissible Punitive Damages may be grossly excessive depending on: -the reprehensibility of the conduct -the ratio of compensatory damages and punitive damages (the difference between the harm actually suffered and the punitive damages awarded cant be great) -They may NOT exceed a single digit ratio, except in rare cases (See State Farm v. Campbell) -the difference between the award and criminal and civil penalties for similar conduct Punitive Damages: May NOT consider other acts of defendant: State Farm Insurance Co. v. Campbell (US Supreme Court, 2003) 1. Punitive Damages can NOT be based on: -Conduct that was lawful where it occurred -Conduct occurring outside the forum state -Other dissimilar acts -Hypothetical claims of third parties

38 2. The court held that a defendant should be punished for harm he committed against plaintiff but NOT for being an unsavory individual or business 3. Few awards exceeding a single digit ratio will satisfy due process; except in cases where there was particularly egregious conduct but little economic damages 4. When compensatory damages are substantial, the punitive damages may only be equal to or less than the compensatory damages in order for due process to be satisfied.

CHAPTER FIVE: NEGLIGENCE BASIC PRINCIPLES

NEGLIGENCE: Conduct which poses an unreasonable risk of harm to others It is a question fact for the jury or fact-finding judge 4 ELEMENTS OF NEGLIGENCE (all must be present): 1. Duty 2. Breach 3. Causation Cause in Fact Proximate Cause 4. Damage THE CONCEPT OF DUTY Palsgraf Duty Rule: The risk that can be reasonably perceived defines the duty to be obeyed One owes a DUTY of reasonable care to those who may be harmed by ones actions if that harm is foreseeable to the actor Palsgraf v. Long Island Railraod Co (Court of Appeals of NY, 1928) 1. Railroad guards attempted to boost a man running to catch a train leaving the station, but when they did he dropped his package, which exploded. 2. The question was whether Mrs. Palsgraf could recover from the railroad company for injuries she sustained while she was standing on the opposite end of the station when a scale fell on her caused by the explosion. 3. The Cardozo majority held that because there was no reason to foresee the possibility of injury to Palsgraf or to others, there was no duty to her, and no liability for negligence. 4. William Andrews dissent spelled his belief the defendant was liable through a theory of proximate cause, where there should be liability assessed when there was a natural and continuous sequence that was a substantial factor in injuring the plaintiff. THE NEGLIGENCE BALANCING TEST ***The fact that there is a remote possibility of personal injury or property damage is ordinarily not enough.

39 Nussbaum v. Lacopo (Court of Appeals of NY, 1970) Golf course case 1. The plaintiff, whose property abutted a golf course, was injured by the defendant when his tee shot struck the plaintiff. The golfer was not found liable. 2. The case illustrates the rule that a person cannot be expected to guard against harm for events which are so unlikely to occur that the risk, although foreseeable, would commonly be disregarded. Gulf Refining Co. v. Williams (S.Ct. Mississippi, 1938) Bung Cap case 1. A spark caused by a defective bung cap on a gasoline drum started a fire which injured the plaintiff. 2. Illustrates rule that Where the gravity of potential harm increases, the reasonable prudent person would take corrective action to avoid the small risk of serious harm.

Learned Hands Balancing Test: Conduct is negligent if the Burden of the prevention is outweighed by the gravity of the Loss times the Probability of the harm. B < L x P = NEGLIGENCE B > L x P = NO LIABILITY United States v. Carroll Towing Co. (US Court of Appeals -2nd Cir., 1947) 1. A barge belonging to the plaintiff had broken away from its mooring because of the negligence of the defendants employees in moving the ropes. 2. The court held that the plaintiff was contibutorily negligent in not having a watchman aboard to take corrective action and could not recover since the burden of having a watchman was low, but there was probability of great harm in such a busy wartime harbor. Known for Learned Hands test in this case.

Utility v. Risk Balancing Test: Risk of harm may be balanced against the utility of the actors conduct taking measures to prevent the harm. 1. Utility: Social value of the interest to be advanced Likelihood of advancement Availability of alternatives: technical feasibility, economic and other costs, efficacy 2. Risk: Social value of the interest imperiled (made dangerous/harmful) Likelihood of harm Extent of harm Number of persons affected

40 3. Example: Chicago B&Q RR Co. v. Krayenbuhl (S. Ct. of NE, 1902) A 4 yr. old child was injured while playing inside an unlocked railroad turntable area. The court focused on the utility of the defendants conduct and the alternative measures the defendant could have taken to prevent the substantial risk of serious harm to public. Defendant was found negligent. Reasonable Prudent Person Standard Ways the Standard May be Established: 1. Fact-finder Determination- Jurors or judge may determine on an ad hoc basis based on facts of a given case. 2. Judge-Made Standards- A court can state as a matter of law what is required of a person in a given situation and express that determination in jury instructions. 3. Legislatively Determined Standard- Legislators state an expected standard of care in a statute 4. Judicial Interpretations of Statutes- A court may define a standard of care in reference to a similar legislative enactments (like penal codes) Considerations a Jury May Take into Account (Do they change the standard of care?) 1. Emergencies: Does NOT change the standard of care, only a FACTOR on whether the person behaved reasonably in the emergency situation. -In Young v. Clark, a driver was not held liable he slammed his car into car in front of him because a 3rd party driver caused him to do so in an emergent situation. Used Sudden Emergency Doctrine -EXCEPTIONS: A. When the actor creates his own emergency by his own actions, the Sudden Emergency Doctrine does NOT apply. B. Competence may be considered in deciding if the doctrine should apply. C. Medical Emergencies typically allow volunteers to render aid at the scene but may be liable for conduct more blameworthy than ordinary negligence. 2. Physical Disabilities: If an actor has a physical disability, the actors conduct is negligent if it does not conform to that of a reasonably careful person with the same disability. -Hill v. City of Glenwood- A blind man was injured in an accident on a public sidewalk, and defense argued contributory negligence. Court held that the physical handicap was a relevant circumstance but it did not change the standard of care, which was that of another blind person. 3. Religious Beliefs: Generally, a relevant factor, but does NOT change the standard of care; some courts may judge standard of care for a person of certain sect.

41 -Williams v. Bright- Court found that the plaintiffs Jehovah Witness belief were relevant to the issue of mitigation of damages, but not dispositive. The jury instructions were to be What would a reasonable, prudent person of this religion do under the same circumstances? -Avoidable Consequences Rule: A party who claims to have suffered damages by the tort of another is bound to to use reasonable and proper efforts to make the damage as small as practicable, and if an injured party allows the damages to be unnecessarily enhanced, the incurred loss justly falls upon him. Now seen as fault by the defendant in Comparative Fault 4. Age- Some courts hold that the question of whether to judge children at the same standard as adults is whether the activity is one which is normally engaged in only by adults, is a dangerous activity, or if there are adult qualifications required. -Goss v. Allen- The court held (consistent with all other jurisdictions) that children are normally to be judge by a special standard, such as what would a child of like age, intelligence, and experience do in similar circumstances. Its a question of fact for a jury to decide, not judge. -The maximum age for the childrens standard is usually set at 17 yrs. -Most jurisdictions do not allow negligence claims against children under the age of 5 yrs. (some do it at 7 yrs. of age) 5. Mental Deficiency- Most jurisdictions hold that an actor who is mentally deficient or temporarily/permanently insane receives no special consideration in determining whether the actor acted reasonably. -The actor will be held liable for negligence UNLESS the conduct measures up as behavior reasonable for fully sane person -EXCEPTIONS: Some jurisdictions hold that in cases of sudden, unexpected, temporary insanity, should be regarded like other temporary medical emergencies like seizures, but this is a question of fact for jury. In Bruenig v. American Family Insurance Co., the Court did not allow the instructions to be changed despite affirming the above exception, since the defendant had reasons to believe her conduct may occur. -Most jurisdictions hold that an actors mental deficiency is always relevant to the issue of contributory negligence 6. Superior Skills or Knowledge- If the actor is apart of a specialized profession (lawyer/doctor/engineer) that standard of care will be defined with reference to that group, and the actor will be found negligent for failing to perform with the degree of knowledge/training/skill possessed by an ordinary member of that profession in good standing. -One who holds himself as having superior skill or specialization must exercise those abilities

42 -Generally, courts hold that greater experience does NOT change the standard of care -**In the absence of an express agreement, a professional does not impliedly guarantee a successful result, nor does a presumption of negligence arise from the fact that the professionals efforts were unsuccessful In Hodges v. Carter, a plaintiffs attorney followed a customary practice of serving process upon the state commissioner of insurance for out of state insurers. When that practice was unexpectedly held invalid by the court, the client lost his claim. The court held that where an attorney acts in good faith, his error in judgment does make him liable until a last resort court holds that it is a liable mistake. 7. Legal Malpractice An Attorney Implicitly Represents that He: -Possesses the ordinary degree of learning, skill, and ability -Will exercise his or her best judgment -Will be diligent and careful in exercising his professional skill and knowledge Generally, there is NO liability for error of judgment on which reasonable lawyers may differ An attorney owes a duty of care to anyone who becomes a client -Some jurisdictions hold that a duty extends to intended third party beneficiary of the attorney-client relationship. Ex. Will or trust -A duty may extend to persons who may foreseeably rely on documents provided by attorneys, such as an opinion letter issued to non-clients Courts generally require a former criminal defendant client to prove innocence of the crime charged as an essential element of their malpractice claim Care must be exercised in making referrals by doctors, attorneys or other professionals Burden in Legal Malpractice Claim: High burden; plaintiff must prove that defendant attorneys breach of the applicable standard of care resulted in damage -Some courts hold that plaintiff must prove that he would have won but for the negligence of the defendants negligence; also applicable to business negotiations -Split authority on liability of negligent settlements Expert Testimony normally required on the issue of whether a particular course of conduct was negligent ---if NOT, the claim will fail -**The standard by which the expert should testify to is that of the degree of knowledge, skill, diligence, procedure knowledge commonly possessed and exercised within the forums jurisdiction (the state)

43 -No locality rule in legal malpractice (cant use standard of one town only); however may be used in medical malpractice 8. Medical Malpractice The fact that someone would have done something different is irrelevant to decide malpractice look at doctors procedure and decide if that was conduct no other doctor would have done in the same instance Doctors will usually be judged by the community or school which they trained under or prescribe to Informed Consent: the failure to obtain informed consent is professional negligence even if the treatment was skillfully rendered -A Physician must disclose all material risks and alternatives, Except When: A. The information is, or should be known to the reasonable patient B. Disclosure would be detrimental to the patients best interest (if patient knows, it could enlarge risk of previous condition) C. There is a sure emergency (patient is no condition to determine whether the treatment should be administered) -The test for materiality is whether the matter is likely to affect patients decision on the treatment -Plaintiffs burden: Show failure to disclose, and that the nondisclosure was causally related to some injury -If the treatment is completely unauthorized and without consent at all, the action is for battery -Scott v. Bradford A doctor failed to disclose the risk and possible complications of a surgery. The court used a test of whether a reasonable patient would have undergone the treatment if they knew the risks and alternatives 9. Gender- The same standard applies to both men and women 10. Educational Malpractice Courts typically refuse to recognize it Judge Made Standards: Courts may attempt to articulate definitive rules of conduct on issues of continuing importance. See Helling v. Carey for a recognized test for judgemade standards. 1. Helling v. Carey Helling (P) went to her eye doctor (D) several times for a continuing condition regarding her loss of vision. Later, P discovered she had glaucoma, which could have been determined by a simple test. The court stated that the reasonably prudent standard should have been followed since Ds error proximately resulted in Ps injury. The court held that it is the duty of the courts to say what is required to protect patients from damaging results of common diseases. Courts can create tests for certain causes of action in certain situations.

44 Negligence Based on Violation of a Statute: With regard to proving negligence based on violation of a statute, a line of inquiry that may be used (by judge/jury) is to ask: 1. Did the statute set the standard of care (2 kinds) A. Statutes intended by the legislature to set standard Civil liability will follow the rule set; only need to look constitutionality of rule and applicability of facts to rule B. Standards Adopted by Courts Based on a Statute (see below) 2. Was there an excuse for the violation? (Possible Excuses for negligence per se) A. Incapacity to Comply (too young, physical disability, etc.) B. Ignorance of the need to comply (you dont know you broke rule) C. Inability to comply despite ones diligence (try but cant) D. No compliance because of an emergency E. Compliance would result in greater risk of harm F. There may be other excuses 3. What is the procedural effect of an unexcused violation? 3 types A. Negligence Per Se (Sure Breach) Jury is instructed that if it finds that the facts establish an unexcused violation no further inquiry needed; statute set standard B. Prima Facie Negligence (if not rebuttable breach) Violation establishes Presumption of negligence that may be rebutted by showing of a adequate excuse C. Some Evidence of Negligence (Arguable breach) Violation is only evidence to which the jury may accept or deny as proof of negligence 4. Was the violation causally related to the plaintiffs damages? 5. Is recovery barred by available defenses? Standards Adopted by Courts Based On Legislation: Courts will consider 1. Whether the plaintiff is within the class of persons the statute was intended to protect, AND 2. Whether the harm to the plaintiff is of the type that was intended to be prevented (Courts taking this approach occasionally find that there is implicit legislative intent to create a standard of care) 3. A court may also consider if the statute is: vague, obsolete, should judicial restraint be exercised, are there causation problems, is there an exclusive remedy already declared in the statute. -In determining the legislative intent as to whether a statute protects a particular type of harm or class of persons, courts look at : A. The language of the statute B. Its title C. Legislative history, incl. congressional findings

45 -Safety statutes are generally not interpreted to protect professional rescuers -Exclusvie Penalties A court may NOT adopt a statute as setting the civil standard of care if the legislature intended that the specified penalty be the exclusive sanction for an infraction OR if the legislature states the rule cannot be interpreted any other way. -Courts may rely upon a criminal/penal statute in order to find a standard of care for certain conduct Examples: -Pelkey v. Brennan- Where a 13 yr. old girl was injured while roller skating , the court held that in the action against the rink, the statute the plaintiff relied upon prohibited children below the age of 16 from going to ice rinks after 7 p.m. and was not intended to prevent injuries. -Even if a statute is held to protect a different class or different type of harm, negligence still may be found under the reasonable person standard applied to the facts of the case. -Stachniewicz v. Mar-Cam. Corp. Although the statutory provision was arguably intended to prevent physical injuires to patrons like the plaintiff, the court refused to hold a violation of that law could be used to prove negligence. The court reasoned that applying a but for test, it could not be said that serving one more drink to one already drunk, that the fight would not have occurred but for the serving of the X number drink to violator. -Brown v. Shyne Where there was a penal statute in NY regarding practicing medicine without a license, the court held that injury caused by neglect of duty imposed by a penal code there can be a civil remedy, but the injury must follow from neglect by defendant. Practicing with absence of a license does not by itself impose negligence. Compliance with the Statute: Compliance with statutory requirements does not necessarily establish the defendant acted reasonably if the situation is more hazardous than usual, additional precautions beyond the statutory minimum may be required -Montgomery v. Royal Motel Where court held that the defendant motel was not liable to the plaintiff patron because the situation was normal since there was no previous special reason to go beyond the type of locks that were used. Compliance with the city ordinance was enough in this case.

46 Statutes Allowing No Excuse or Defense Some states may enact laws that the courts may interpret as implying either strict liability or absolute liability. -Limited Class of Laws May Include Min. age for dangerous job, OSHA, gun laws, dog-bite laws, FDA -Absolute Liability Rule Applied by some courts when an injured individual falls into an intended protected class and actors cant defend themselves or where statute declares no defense for a particular conduct. Ex. Seim v. Garavalia Where the court imposed absolute liability on defendant after the plaintiff child was injured by a dog bite from defendants dog. The state had a statute specifically appealing to that cause of action, and court implied absolute liability without an affirmative defense or contributory negligence.

SPECIAL STANDARDS OF CARE: Degrees of Negligence: Slight Negligence, Ordinary Negligence and Gross Negligence Prevailing View Rarely employed, EXCEPT IN CONNECTION WITH --a. Common Carriers b. Bailments c. Utilities or Innskeepers d. Some states have statutes for certain classes

CHAPTER 6: PROVING NEGLIGENCE

A. Evidence of Custom Conformance with custom raises an inference of reasonableness and departure from custom raises an inference of unreasonableness. Does NOT create a standard of care TJ Hooper A set of barges capsized in a storm after the tugboats pulling them had failed to receive a crucial weather report since the tugs did not have radios. The court found that there was no custom diverged from, but that divergence does not necessarily mean that one was not negligent; divergence allows for rebuttable presumption of negligence B. Circumstantial Evidence Proof of Negligence: 1. Direct Evidence Evidence directly supporting the finding of fact in question; ex. Eyewitness testimony

47 2. Circumstantial Evidence Evidence from which the fact in question can be inferred; ex. Finger prints, tire marks -Banana Peel Slipping Cases Cases: A. Where the banana peel was dark, and gritty, a court may hold that it was reasonably inferred that the peel was in place of accident for some time, and D breached his duty of care not pick it up. -Constructive Notice Established where a danger existed for so long that it should have been discovered through exercise of reasonable care. Where a jury may infer negligence: from the duration risk present, the proximity and opportunity to discover the risk by D prior to plaintiffs injury and Where there is evidence of prior occurrence of dangerous conditions in the past 3. Mode of Operation IF the defendants method/mode of operation makes an injury foreseeable, the failure to take precaution may give rise to liability, even in the absence of the specific condition that caused the harm to P. Ex. Selling pizza on waxed paper to customers who would consume it while standing on a slick marble floor; OR where it was foreseeable loose grapes from a shelf in a store may fall on the floor and failure to supply non-skid mats was negligent. 4. LIABILITY FOR NEGLIGENCE DEPENDS ON FORESEEABLITY, NOT NOTICE If a danger was NOT foreseeable, then the defendant must have had either actual or constructive notice of the danger.

C. Res Ipsa Loquitur - The Thing Speaks for Itself. Res Ipsa Loquitur A type of circumstantial evidence where the mere occurrence of a certain event may allow a jury to reasonably infer both negligence and causation and defendants relation to it. 1. Res Ipsa Loquitur doctrine eases the difficulty of the burden of proof by raising inference of causation and negligence by D, but courts generally require that the in order to use Res Ipsa, the event giving rise to the harm must be one that does not generally occur in the absence of negligence. 2. Allow the plaintiff to survive the defendants No evidence summary judgment motion to dismiss Res Ipsa Evidence: In order to Use the Doctrine, there must be. 1. An event that does not normally occur in the absence of negligence

48 2. And where there are facts that defendants conduct more likely than not was the cause of the event CONSIDER: Defendants exclusive control over and the responsibility for the instrumentality that gave rise to the injury -Ex. Construction workers injured by a chemical explosion at the chemical plant they worked at had their suit allowed to continue since the court held that the defendant chemical company had exclusive control over the instrument that had caused the injury Defendants superior knowledge or opportunity to obtain knowledge to the facts of the event causing Ps harm -Ex. Where a gas main exploded killing several persons, the court based its decision to allow the case to go forward by reasoning that the defendant gas company had superior knowledge of the gas distribution system and had access to the necessary facts. Defendants Response to Ps Use of Res Ipsa Loquitor - The defendant often will respond by producing rebuttable evidence that due care was in fact exercised by the defendant, or that the injury was caused by a third party, not defendant. Procedural Effect of Use of Res Ipsa Loquitor: 3 Views Today 1. Allows for Permissible Evidence- Majority 2. Presumption that shifts the burden of going forward with evidence 3. Presumption that shifts the burden of persuasion (esp. multiple Ds) Multiple Defendants: Res Ipsa Loquitor may be used in regards to multiple defendants where there was multiple defendants who had either 1)Joint control over the injuring instrumentality OR 2) Had access to information related to the Ps injuries and creates a presumption of negligence against these Ds Ybarra v. Spangard (S.Ct. of CA, 1944): Where there were several defendants at a hospital in doctors and nurses who held responsibility of reasonable care to plaintiff patient was injured by an act not related to his surgery. When none of the Ds would say who was liable, the court allowed res ispa loquitor to P to present this refusal by each D to tell guilty party. Jury found all liable to P. Spoliation of Evidence In cases where the defendant acted negligently, but has all access to vital evidence to Ps case, and there has been either intentional or un-intentional destruction of that evidence, may give rise to either A) an Independent Tort (Spoliation of Evidence) OR B) Presumption of guilt or sanctions against Defendant (More usage) Factors that May Be Considered to Determine Spoliation of Evidence: 1. Was there a duty to retain the evidence (statutorily, ethically, or regulatory) 2. Was the duty breached intentional, reckless or negligent

49 3. Was the evidence lost relevant, circumstantial, or direct? 4. What sanction is appropriate? -dismissal, preclusion, exclusion, jury instructions -REMEDY WILL DEPEND ON CULPABILITY OF DEFENDANT/3RD PARTY Spoliation of Evidence torts may be brought against Third Parties

CHAPTER 7: FACTUAL CAUSATION

CAUSATION : 2 TYPES, NEED PROVE BOTH 1. FACTUAL CAUSATION A factual inquiry into whether the defendants conduct precipitated the plaintiffs injury. But For Test 2. PROXIMATE CAUSATION-An policy inquiry into whether it is fair to impose liability on defendant whose conduct was the factual cause of the plaintiffs injury Reasonable Foreseeability Test FACTUAL CAUSATION Plaintiff normally has the burden of proof in factual causation Consider whether the defendants conduct was a substantial factor in bringing about Ps injury. If it is indispensable But for; or if it is independently sufficient

But-For Test (Sine qua non): But for the defendants conduct (negligence) the harm would NOT have occurred. Example Williams v. Steves Industries (Tex. 1985)- Where a mother and her two children were killed when they were rear-ended by a eighteen-wheeler driven by D, had her reward reduced by the mothers comparative negligence since mothers car would not have stalled out in the middle of a busy highway but for her negligence in not filling up the car with gas before she began traveling. It also was foreseeable to the mother that if she didnt fill the car with gas it might stall out on the highway. But For Test is a question of fact for a jury to decide as to whether Ps/Ds conduct multiplied the chances that harm may occur Direct or Circumstantial Evidence can support Factual Causation There may be more than one But for cause to Ps injury STUDY FIRE SCENARIOS ON PAGE 375 IN SATL Joint and Several Liability When more than one defendant is found liable, the plaintiff will not get double recovery for the same injury, but will receive compensation from either from only one of the Ds, or partially from both, but is not entitled to more than the total loss.

50 Substantial Factor Test Factual causation test used intertchangeably with the but for test, the jury may be instructed to find the defendant negligent if it thought the defendants conduct was a substantial factor in producing the harm. Loss of Chance Rule Doctrine that allows the plaintiff to recover damages where the defendants conduct was a substantial factor in causing the plaintiff a loss of chance to escape from the harm in question (death, paralysis, blindness, loss of limb, etc.) **Damages should be awarded in proportion based on plaintiffs percentage of chance for a better outcome from the harm in question. Ex. A doctor was found negligent where failed to timely provide the proper treatment to refer a patient to another specialist who could treat the ill patient; patient lost chance to possible recovery from cancer; Doctrine used most often in medical malpractice Some states reject the Doctrine Multiple Fault and Alternative Liability: The burden of proof in factual causation shifts to the defendants if: 1. Each defendant is shown to have acted tortuously; 2. The actual wrongdoer is one of the small group of members of defendants presently before the court; and 3. The nature of the accident makes it impossible for the plaintiff to prove causation Each defendant is subject to FULL LIABILITY for Ps injuries, absent proof of causation. -If the Plaintiff is found to be contributorily negligent, this principle will likely not apply. -If one of the Ds is able to present convincing evidence of his lack of liability, he will be dropped from the suit. Ex. Summers v. Tice (S.Ct. CA, 1948): Where Plaintiff and two defendants were quail hunting on an open range, walking in a line and a bird flew above plaintiff ---with the two defendants each firing shots. One of the shots put out Ps eye. The court allowed the burden of proof to shift to the two Ds since both Ds were negligent and it was impossible for the P to discover which actually shot him. Market Share Liability Apportionment of fault between multiple defendants based on their share of a particular market in a particular jurisdiction. (or nationwide) Not many states have embraced this rule Perspectives on Factual Causation- Who Has the Burden? 1. Normal Factual Causation Burden is on the plaintiff 2. Res Ipsa Loquitor Plaintiffs burden eased 3. Alternative Liability Burden shifts to defendants if all were negligent and the responsible party is in court. Summers v. Tice

51 4. Enterprise Liability Burden shifts to the defendants if they all jointly controlled the risk and its virtually certain the responsible party is in court Hall v. DuPont 5. California Market Share Liability Burden shifts to the defendants if the number sued upon is sufficiently substantial to prevent injustice (likely responsible party is in court). Based market share on the state-wide market If one defendant is dismissed by disproving liability to P, remaining defendants pick up his slack to the total liability to P. See Sindell v. Abbott Industries 6. Concerted Action Liability - Liability may be maintained against a person who stood in a particular relationship with the actual wrongdoer; Plaintiff need not show that defendant caused the harm, only that defendant acted in concert with the one who did commit the wrong. Well established rule in every jurisdiction 7. NY Market Share Liability Defendant who engaged in a particular type of conduct is liable to the P even if the defendant neither caused the plaintiffs harm nor acted in concert with the one who did. Based market share on the national market Hymnowitz v. Eli Lily and Co. Concerted Action Liability: Where a defendant may be held liable who acted in concert with the wrongdoer. Two types: 1. Civil Conspiracy Where there is a concerted action by agreement. An agreement by two or more persons To participate in a lawful act in an unlawful manner. There is an injury caused by an unlawful overt act performed by one of the parties in the agreement Where the overt act was done in furtherance of the common scheme. 2. Aiding and Abetting- Where there is concerted action by substantial assistance. The party whom the defendant aids must perform a wrongful act that causes injury; The defendant must be generally aware of his assistance in an overall unlawful or tortuous activity at the time defendant provides assistance to wrongdoer And the defendant must knowingly and substantially assist the principal violation Factors for Substantial Assisting nature of act encouraged, amount of assistance by D, defendants presence at time of tort, Ds relationship to actor, and Ds state of mind. 3. Joint Enterprise Liability Form of concerted action where a defendant becomes liable to P because of the nature of his partnership to wrongdoer, involvement in arrangements for cooperation. May be applied when there is an express/implied agreements for common purpose or community of pecuniary interest or equal right to voice direction of enterprise, which gives equal right to control of the operations

52 Incitement Possible liability of Defendant for verbally or orally expressing a view which incites, or encourages the tortuous action committed by another. In considering liability, determine the defendants level of responsibility for the act committed, Ds 1st Amendment rights, and foreseeability of the act. Torts on incitement usually fail against the media.

CHAPTER 8: PROXIMATE CAUSATION

Proximate Causation: 2 Views 1. Direct Causation Liability will be imposed even for unforeseeable harm directly resulting from the defendants tortuous conduct. (Continuous Sequence) 2. Foreseeability Liability is limited to only reasonably foreseeable results. PREVAILING VIEWS ON PROXIMATE CAUSATION: Modified Foreseeability Plaintiff must fall, at least generally, within the class of persons foreseeably endangered by the defendants conduct Ex. Palgraf The broad outlines of the harm must be foreseeable, BUT the precise details or manner of its occurrence need not be anticipated by the defendant Ex. Giving a child a loaded gun is negligent b/c of the foreseeable risk that it might discharge and it is irrelevant if the gun fired from being dropped instead of the trigger being pulled. The result must fall with the scope of risks that made the defendants conduct negligent or otherwise tortuous Ex. If a gas station requires cars be turned off before pumping gas, the gas station cannot be liable to P who leaves car running but the injury that occurred wasnt the explosion of the car, it was the car rolling back over Ps leg. Foresight of the remote possibility of harm may establish proximate cause, if the gravity of the threatened harm is great and the cost of adequate precautions are minimal Ex. Hosting a large picnic and serving unlimited alcohol all day long with no security measures taken will lead to proximate cause if a drunk man from the party drives his car into crowd injuring people. The full extent of the physical harm need NOT be anticipated. Ex. You take P as is, therefore hitting man who is prone to heart failure, dies shortly after the accident caused by heart failure, D is still liable. Foreseeability is NOT sufficient to create liability where the harm that occurred was too tenuous and remote Proximate Cause where there is foreseeability of danger Intervening and Superseding Causes

53 Intervening Cause Force that comes into play after tortuous conduct has occurred and actively contributes to the production of the harm for which recovery is sought. -IF the intervening cause is foreseeable, or within the scope of the risk that made Ds conduct negligent, defendant is still liable -Most courts hold that the initial wrongdoer is liable for aggravated injuries caused by ordinary negligence by medical professionals treating original injury -Ex. Foreseeable that not protecting a work-site next to road may allow a incapacitated driver to hit one of the workers -Ex 2. P whose car knocked off road by negligent driver D, who was later struck by another car that slid off icey road while P tried to flag down help. D liable. Superseding Cause Intervening force which break the chain of proximate causation between the defendants negligence and the plaintiffs harm, thereby absolving the defendant of legal responsibility. -If the intervening force is NOT foreseeable and NOT within the scope of the risk created by D, then the ultimate damage caused is not defendants responsibility -If foreseeability of Intervening force BUT Ds conduct in no way increases risk of harm to P by the intervening force or if there is intervening criminal or intentional harm by 3rd party, D is not liable EXCEPTION: If the D has a duty to P (landlord/tenant), an intervening criminal act by 3rd party may cause D to be liable. Rescue Doctrine: Rules in intervening and superseding cause apply to rescuers as well 1. Normal rescue efforts do NOT break chain of proximate causation between the tortfeasor who created the peril and the victim, EVEN IF the negligence on the part of the rescuer aggravates the Ps injuries 2. An injured rescuers claim against the creator of the peril cannot be usually frustrated by claims of lack of proximate cause. 3. DOES NOT APPLY TO PROFESSIONAL RESCUERS (cops, firefighters) 4. Requirements imminent peril, an act of intervention, and tortuous conduct by D Intervening Acts of the Victim A tortfeasor may be liable for injuries sustained by another in an effort to escape threatened harm, and this is true even if the victim, as a result of fright/frenzy/panic adds to the danger by act that would otherwise seem unwise. Ex. If P has to dash across the road in order to escape being hit by Ds negligent driven car and in the process dashes through a plate glass window, D is liable for Ps injuries. Victim Suicide IF the victim retained any capacity to know what he or she was doing, recovery for the death will be denied. If Ds negligence rendered Ps injuries to point of delirium and P unknowingly rips off bandages and dies, D is liable.

54 -Doctors may held liable for a patients suicide if it was foreseeable based on their expertise -Most states hold that unforeseeable suicide will not allow proximate causation Comparative Fault to Superseding Causes Some courts hold that adoption of comparative fault by courts does not abolish superseding cause. Others using common law say superseding cause is an all or nothing determination.

Shifting Responsibility (Gen. Rule) 3rd Partys failure to act does NOT break causation. When the initial tortfeasor has done everything possible to avoid the harm, or his omission unforeseeable, responsibility may shift, and the tortfeasor will not be liable for subsequent damages. In extraordinary circumstances, a third persons failure to prevent the harm is a superseding cause which relieves the tortfeasor of liability for any harm incurred subsequent to the shifting of responsibility. Relevant Factors: 1. If 3rd party and D had a contract covering situation, the 3rd party assumes full responsibility 2. Magnitude of threatened harm more serious, less chance of shifting 3. Lapse of time greater amount of time btw wrong by tortfeasor, more likely of shifting 4. Character and Position of 3rd Party Was 3rd party in much better position or had more ability/knowledge to act 5. Likelihood 3rd party will act (relationship to P, inconvenience, expense)

CHAPTER 9: LIMITED DUTY FAILURE TO ACT

Failure to Act: General Rule No duty and No liability for failing to provide assistance to one in peril EXCEPTIONS: Where NOT to act would make one Liable 1. Duty Based on Relationship to Victim: -Family Parent/Child (in loco parentis) is sure duty; rest likely but unsure -Carriers/Innkeepers/Utilities Duty to help injured patron or one under attack; also facilitate civil claims against 3rd parties -Invitors To Invitees onto ones land when assistance needed; also duty to provide safe conditions -Custody Warden has duty to prevent harm to prisoner; school to students possibly -Employment Employer to employee; with reasonably safe workplace & against criminal attack -Landlord To tenant; duty to provide adequate security for common areas 2. Duty Based on Relationship To Tortfeasor:

55 -Children Parents may have a duty to control a child, especially where a parent knows his child has dangerous tendancies -Mental Health Patients A doctor who knows that a patient would cause harm has a duty to potential victims, but also that the managing doctor must make reasonable predictions about the dangerous tendencies of his patients and warn potential victims when appropriate. This duty may override doctors duty to not disclose. -Information Providers Must exercise care in providing information to a third person who may use that information to harm another individual. Entrustment of Dangerous Instrumentalities A supplier of a chattel or land must use reasonable care to see that the instrument is not used to harm others. If the supplier is present, the duty may arise from the suppliers inherent right to control the property and his opportunity to do so. Involvement in an Accident If a persons actions, whether tortuous or innocent, have rendered another person helpless or susceptible to harm, that person has a duty to provide remedial assistance. Ex. If As car hits Bs b/c of Bs negligence, if A does not stop and help a bleeding B on side of road, A will be liable for the aggravation of those injuries. Creating a Dangerous Situation One who innocently or tortuosly creates a dangerous situation must exercise care to prevent harm occurring to others. Voluntary Assumption of the Duty Those who choose to get involved in a certain situation must exercise reasonable care. -To determine liability ask: 1) Has there been an undertaking by D? (A past practice-crossing guards, holding out-emergency rooms, promises w/ out action that induced reliance. AND 2) What is the duty (To whom/ what) -Rescuers may become liable for terminating its rescue Statutory Duties Some states may have required Good Samaritan laws; Legislation typically bars negligence against doctors who gratuitously provide medical assistance.

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