Intentional Torts

Requisite intent is the intent

to make wrongful contact, not intent to harm

3. Age a. Purtle v. Shelton

b. teenager not held to adult standard of care when he accidentally shot his friend with a high-caliber hunting rifle, because although hunting is dangerous, it is not an activity normally engaged in only by adults. Age used differently in determining contributory negligence

Thompson v. White

Facts: The one where P got hit by D's car bc both drivers were distracted by company clowns on highway; D was probably a concurring cause, not an independent intervening cause that would insulate D2 (company) from liability Analysis/reasoning: Liability but this is the hardest application of the Squibb principle; Court argued that the intervening cause was reflexive

The Roman Prince

Facts: The one where the ******* waited 15-20 min before getting off isnkng boat Class notes: o No liability bc The plaintiff had time to deliberate after the negligent act, so it was not a reflexive act brought on by necessity. o How does squib principle apply here?it's applied in the negative meaning bc here she deliberated about it, chose not to, and did very late in the game o Does not fall within the squib case therefore the original tortfeasor was not liable o Would have been diff. if she jumped out of boat after it crashed reflexively o Collision cannot be prox. cause of the injury if she deliberated before trying to escape

g. Davis v. Consolidated Rail Corp.

Facts: Train inspector who failed to put up flag while he was under a railcar. On the other hand, the train conductor failed to blow its horn & started moving. P's arguments: an employee spotted him but didn't report it, so he was arguably negligent, the train failed to blow its horn, the RR co. never sent an employee out to check the tracks before it started moving. Jury awarded P for damage & contributory negligence Analysis/reasoning: Apply the hand formula here. Which one of P's 3 args. actually passes the hand test or results in negligence?Not blowing the horn, bc the burden is very low

Alexander v. Town of New Castle

Facts: distinct from village of Carterville bc that was inadvertent & an act of neg. while this was an intentional tort o Ask does the act increase the probability that you're gonna be injured? (not a trivial increase) • If that pit was enclosed, would it have been the same probability that that guy was gonna do something? 1. Presumable he was trying to escape 2. Yes o Ask does that original neg. act make some further intervening act more likely?

Village of Carterville v. Cook

Facts: the one where guy sued village for negligently failing to provide sidewalk railing; prox. cause of his injuries even though there was an intervening act (guy who jostled him); this was inadvertent

b. Knight v. Jewett

Facts: they were friends playing touch football, Jewett got rough, Knight told him she would leave if he didn't stop playing so rough. The next play he knocked Knight down to intercept a pass and stepped on her finger. She had 3 unsuccessful surgeries but ultimately had to have the finger amputated. The contact under examination is not the 1st occurrence, but the 2nd. Procedure / disposition: Issue: does D's contact with P's finger satisfy elements for battery given his previous rough behavior? Holding: SJ for D, because there was no intent for the contact. Note: diff from. Vosburg b/c of setting (decorum of playing touch football vs. a classroom lend different expectations on touching) Rule: without the requisite intent, Knight cannot state a cause of action for assault and battery

c. Liebeck v. McDonalds Corp. - (1992) [p513]

Facts: woman burnt herself badly when she spilled McD's coffee in her lap and got 2nd and 3rd degree burns, had to spend time in the hospital and had $20,000 in medical bills. She tried to get McD's to reimburse her for her medical bills and for her daughter's lost wages and they only offered her $800. In 10 yrs, there were around 700 similar claims Procedure / Disposition: found for P, but also found that she was 20% to blame for her injuries Issue: was it reasonable for McD to sell their coffee at a temperature that's 20° hotter than everyone else? Holding: you can foresee that people might spill things on themselves. They're selling a product super hot because they know that that's how people like it, but they should foresee the problems. Rule: Difference in cases: the coffee in this case is unusably hot, and cannot fall under what a consumer would reasonably expect, so it merits a warning (consumer expectation test?)

b. McMahon v. Bunn-O-Matic Corp.

Facts: woman got coffee and in trying to pour it into cup, she spilled it on herself. She sued the maker of the cups and the maker of the coffee machine. Said there was a failure to warn claim for saying that the coffee would be this hot and a design defect claim that the coffee shouldn't be kept so hot. Procedure / Disposition: SJ to D / affirmed Issue: Holding:No liability bc it is the custom Rule: you need to think about what warning are we expecting them to give and what's the plausibility of that? If it's not actually abnormally hot and that's the custom, then the temp by itself falls into the common knowledge category. What would the required warning be in that situation? Second part: is it defective? If everyone else is serving at that temp, it's the wway Easterbrook went at it. There are benefits to it, begins to look like VW case

4. Pure Economic Losses

Financial damage suffered as the result of the negligent act of another party which is not accompanied by any physical damage to a person or property.

REASONABLE PERSON- THE NEGLIGENCE STANDARD

1. Mental ability and mental states a. RS § 283 - Conduct of a Reasonable Man; the Standard [p122] Unless the actor is a child, the standard conduct to which he must confirm to avoid being negligent is that of a reasonable man under like circumstances

4. Cohen v. McIntyre

not liable a. Dog bites plaintiff judge rules in favor of defendant bc there was no duty unless she knew of the dog having a biting issue.

5. Neighbarger v. Irwin

not liable a. Court says the "firefighters rule" doesn't apply to private safety supervisors. b.Supervisors did not have an assumption of risk

Design defects:

product was designed in a bad way (some alternate technology available)

RES IPSA LOQUITOR

the thing speaks for itself

d. RS § 18 - Battery: Offensive Contact [p4, 14]

(1) An actor is subject to liability to another for battery if: (a) He acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) An offensive contact with the person of the other directly or indirectly results (2) An act which is not done with the intention stated in subsection (1,a) does not make the actor liable to the other for a mere offensive contact with the other's person although the act involves an unreasonable risk of inflicting it and, therefore, would be negligent or reckless if the risk threatened bodily harm Comment d. Knowledge of contact: It is not necessary that the person know of the contact when it is made. Example: A kisses B while asleep but does not waken or harm her. A is subject to liability to B. Comment g. Necessity of Intention: An actor cannot be liable for only offensive contact, which is not harmful, if he did not intend the contact, although his actions may be reckless or negligent.

e. RS § 19 - What constitutes offensive contact [p15]

A bodily contact is offensive if it offends a reasonable sense of personal dignity

c. How to hold someone liable for manufacturing defects/ what replaces the negligence standard?

A defective product Defendant sold it in defective condition (defective when it left their hands) Note: this element is given to the jury to decide Must be part of your business (selling stuff, gets rid of casual sales) d. Safe product/use = accident prevention Bilateral vs. Unilateral Care: We're more worried about bad behavior in making a safe product, we use SL rather than neg. b/c we think the # of hidden error that the neg system will pick up is greater on manufacture side (making safe product) than on consumer side (not misusing product) Manufacturer's argument: This decision prevents consumers from internalizing their own errors. Rebuttals: o They already have adequate incentive not to misuse (don't want to be injured) o This would create no incentive for the manufacturer to take care o Companies pay attention to liability standards, consumers don't. One side can be deterred by incentives, the other may not; if we're imposing liability to try to influence behavior we should make sure we can actually influence behavior

Henry vs. Houston Lighting & Power Co.

Facts: D's employees were drilling hole for utility pole when they negligently severed an underground gas line. P was summoned to fix the broken line. Smoke appeared near the site. Another employee yelled fire, falsely thinking the smoke indicated a fire. P sprang from the hold & injured shoulder. Claimed injury was attributable to employees' negligence in originally severing the line Class notes: o What fact breaks that chain that puts it outside of that scope? o Result was liability; holding for P bc jury could find prox. cause there o The Q is what risks made the act negligent? An explosion - if there would have been an explosion, this would be an easy liability case o If someone yelled fire and there were actually a fire and someone ran out and twisted ankle, could still be liability there

h. Hand and the Reasonable Man

B<PL takes the place of the reasonable person standard; a reasonable person would follow the result of the formula. You want ppl to take precautions when the precaution is less than the harm they are preventing by doing it. He doesn't plug in actual numbers, but uses it as a reasoning tool. i. Using Hand Ethically If the D fails to adopt precautions and acts negligently, it shows that he attaches a greater weight to his own interests than to the interests of others; by ranking his welfare as more important than the welfare of others, you can use the formula to show unethical behavior. j. Posner Theory on Hand Formula Where some view the intuition behind the formula as being efficiency, Posner thinks the intuition speaks to moral ideas on blameworthiness. There's no moral outrage in the case where prevention would have exceeded the cost of the accident; but there is moral disapproval where there was a cheaper alterative to the accident. 2. Concerns With The Hand Formula a. It's unrealistic because it is impossible to assign clear numbers for each variable (probability statistics usually aren't available and vary with the severity of the injury, injuries are always a variable). It is possible to compare the relative relationships of each element. Juries aren't usually told to use it directly, but judges often use it or think in terms of it. LR view: the Hand Formula represents what happens in real life. For the formula to work, we must look to the range of possible harms and consider them all in tandem. b. It doesn't seem to take into account non-economic values like reputation, emotional distress, etc. Does the formula focus too much on risk and not enough on fairness or justice? Decisions in life aren't just about numbers; even if it were, how could we place value on these things. However, in deciding the burden, (i.e. the cost you would have to pay to victims) perhaps the owner should consider punitive/emotional damages that a judge may give a victim. c. It treats all risks are the same d. But people don't have an unlimited amount of funds and this helps you conceptualize and assess your actions practically

3. Intervening Causes a. Basic premise

Breaks the causal chain via a superseding cause that cuts off the D's L

1. Consent as a defense to battery

Consent can be a defense to liability; it can be like a privilege to battery/contact or it can make otherwise offensive contact non-offensive by negating an essential element. If a plaintiff consented to the touching, it cannot be offensive and there's no prima facie battery case.

b. RS § 433A - Apportionment of Harm to Causes [p333]

Damages for harm are to be apportioned among two or more causes where (a) there are distinct harms, or (b) there is a reasonable basis for determining the contribution of each cause to a single harm. Damages for any other harm cannot be apportioned among two or more causes.

c. Wagon Mound #2 - (1967) [p355]

Facts: A different P, one who hadn't been involved in its own questionable contributorily negligent activity like the other P. The first P risked c. neg because, if oil in the water was negligent due to the risk of fire, the Ps were negligent too because they continued to work despite the fact that there was oil in the water. BUT, b/c this P wasn't involved like that, they could argue the foreseeability point via the negligence of oil in the water much stronger Procedure / Disposition: Found for P.

c. Kingston v. Chicago & NY Ry Co. - (WI 1927) [p334]

Facts: A fire caused by D was burning NW of Ps lumber yard when it merged with a NE fire whose origin was unknown. Both fires were of equal size and either would have destroyed the Ps property on its own. The merged fired destroyed the property and P sued. Procedure / Disposition: Jury brought verdict for P / appeals affirmed Issue: can railroad co, which is found to have been responsible for the origin of the northeast fire, escape liability, because the origin of the northwest fire is not identified, although there is no reason to believe that it had any other than human origin? Holding: If the union with the natural origin fire of was a defense, the burden is on the D to show that the fire set by him was not the proximate cause of the damage. No principle of justice requires that the P be placed under the burden of specifically identifying the origin of both fires in order to recover the damages for which either or both fires are responsible. Court Distinction: Court would allow a complete defense showing that the NW fire was the of natural origin then the D would not be L (if the D could prove). Most courts reject this distinction, allowing L upon a jury finding that the Ds negligence was a substantial factor (test) in bringing about the harm. When the fires are roughly the same size and merge, the known D is stuck. Why is this a causation issue---the Ds fire might not have caused this at all...but for the Ds fire, the other fire still could've burnt the house down. This is different from Summers because one definitely did it...here, two fires it could've just been one. We're less comfortable letting someone off if the other person did a wrongful act... One way of looking at this, is we're saying, "the $ is going to the P, you two (Ds) fight it out"....2 innocents at play here??? This is also what we say with RIL when a patient is unconscious during surgery...there it was the minority rule, but here it is pretty much a majority rule. Rule: where one who has suffered damage by fire proves the origin of a fire and the course of that fire up to the point of the destruction of his property, one has certainly established liability on the part of the originator of the fire

Richardson v. Ham

Facts: Bulldozer case Analysis/reasoning: Liability bc this is analogous to Brauer: Leaving the keys in the tractor invited an increased probability of someone coming and using the tractor. The intervening act was intentional, but it was still foreseeable from leaving the keys in the ignition.

7. Smith v. Cutter Biological, Inc.

Facts: Contaminated blood case Analysis/reasoning: No liability; Distinction from Sindell: Not a fungible product - one manufacturer of blood is not representative of the rest of them. Court held for market share liability - one of the most extreme extensions of the standard b. A Note on Apportionment The Decline of Joint & Several Liability Basically each D can be held entirely liable; I can sue any D as mentioned in necessary but not sufficient causes Applicable when Ds are joint tortfeasors and the injury they cause is indivisible o They conspired to do this together o P can sue D1 for full damages, D2 for the full damage, or both Ds Purpose is that we think Ds generally are in a better position than P Most courts do not allow joint and several liability, but rather apportion damages based on causation (several liability) o Defendant is only liable for the portion of the damage that they caused Current trend in courts is not to allow joint & several liability o But a substantial number still apply it Main disadvantage is that P bears more of the risk; advantage is that it's more fair to D

8. Solando v. O'Daniels

Facts: D sued bc he didn't allow P's use of phone in D's business which could have saved P's life Analysis/reasoning: Holding for P bc it does not follow that use of a phone in a public portion of a business should be refused for a legitimate emergency call. Imposing liability for such a refusal would not subject innocent citizens to possible attack by the "good Samaritan" for it would be limited to an establishment open to the public during times when it is open to business, and to places within the establishment ordinarily accessible to the public. The duty would arise only if it were clearly conveyed that there exists an imminent danger of physical harm. This was a public environment, where the owner was inviting people in, and it also involved a grave threat to someone's well being.

Farmiliant v. Singapore Airlines, Ltd.

Facts: Sick passenger after unavailable flight Class notes: o Assume the airline was negligentno liability • Analogous to Central of Georgia Railway bc the result in that case was that they reversed for the train company saying it wasn't a proximate cause bc it was just as likely to happen at the hotel as it was...*? o Q is was there an increased risk o No liability

Johnson v. Kosmos Portland Cement Co.

Facts: Ds were owners of a barge which had recently been used to haul oil & as a result, inflammable gases had accumulated in the barge's hold. D negligently failed to remove the gases before summoning Ps to work on the barge using a torch. But the ignition of the gases were not caused by the torch but by a bolt of lightning that struck the barge Analysis/reasoning: Freak accident. The rat case (United Novelty) is a precedent that might apply hereone thing that was never foreseen and could never have been foreseen was the rat covered in gasoline, etc. • Court held in rat case that that's an operation of forces case where it doesn't destroy the connection or prox. cause bw the 2 • The D in rat case neg. risked the explosion, and that's the outcome that came to fruition • Ultimately, there was liability in this case bc even though no one could have foreseen a bolt of lightning, it was still a foreseeable force and harm, so the harm fell into the category of risk

8. Klein v. Pyrodyne Corp.

Facts: Firework accident Analysis/reasoning: Strict liability. Counterargument - common usage, especially in some parts of the country. Social value to fireworks? Inherently dangerous - how safe can a person actually make them?

c. Nutting v. Ford Motor Co. - (1992) [p477

Facts: Hewlett-Packard annually bought cars for ee's to use then auctioned them off a couple years later. The P bought one of the HP cars at the auction and was injured when it stalled on the highway. Sued HP on theories of SL for product liability and also sued the auctioneer. Procedure / Disposition: they were found liable as distributors Issue: Holding: used car sales companies weren't found liable, they tend not to apply those as far as distributors go because defenct may have been found by the consumer between. But in this case, because it's a big company that's doing it all the time, they have their own fleet of vehicles they become a distributor Rule: close enough to stream of commerce to be considered a retailer

3. Archibeque v. Homrich

Facts: Hitchhiker & driver in accident; not sure what happened; hitchhiker was in driver's seat. Analysis/reasoning: Hitchhiker's estate says a number of things could have happened; insect could have been on the dashboard, animal could have run out in front of the road, etc.

Lawson v. Management Activities, Inc.

Facts: One of D's aircrafts crashed near a car dealership. Employees at the dealership saw it and feared for their lives. Sued to recover for emotional distress. Dismissed.

b. Brauer v. NY Central & HRR Co. - (NJ 1918) [p368]

Facts: One of Ds trains collided with the P's wagon. In the aftermath of the accident, P's wagon was robbed with multiple items being stolen. P sued to recover for the stolen goods. Procedure / Disposition: trial court ruled for P / affirmed Issue: what is the extent of the defendant's liability? Does P have a right to recover the value of stolen items? Holding: The act of thieves did not intervene btw the D's negligence and the P's loss; the two causes were concurrent. It's a joint tort rather than an intervening cause Dissent: the established rule of law is defeated if proximate cause is confounded with mere opportunity for crime. The collision wasn't the proximate cause; the thieves broke the causal chain. You can't say that criminal intervention should've been foreseen → this implies a presumption of crime and that's contrary to the rule of law. Rule: The act of a third person, intervening and contributing a condition necessary to the injurious effect of the original negligence, will not excuse the first wrongdoer if such act ought to have been foreseen. In short, if the third party actions were foreseeable, the causal chain remains in intact

b. Rowland v. Christian - (CA 1968) [p267]

Facts: P cut his hand on a crack in the faucet in D's bathroom. D had asked landlord to fix faucet. Parties disagreed over whether the crack in the faucet was obvious (since P had used that BR before). Procedure / disposition: SJ to D on ground that P was a licensee / reversed, saying distinction b/w duties owed to trespassers, licensees and invitees had become obsolete Issue: Holding: the court in CA got rid of all distinction, most other courts got rid of diference b/w invitees and licensees Rule:

Gardner v. National Bulk Carriers, Inc.

Facts: P found to be missing on the ship, last seen 6 hrs. earlier. Ship did not alter its speed or course, and continued on its way. Analysis/reasoning: Holding for P bc only thing known with certainty is that often seamen who fall overboard survive for many hours in the water & court found that turning back would have entailed no risk, so the inaction of the captain established a neglect of the duty to rescue--a neglect from which a contributing cause of the seaman's death is fairly and conclusively drawn by law. There was a duty here

9. Stangle v. Fireman's Fun Insurance Co.

Facts: Ring stolen & D refused to let P use business phone to report theft Analysis/reasoning: Distinction bw Soldano case is that this case involves property & the other a danger to life; the limiting language of this decision is imp. 1. Definitions a. Undertaking - Acquiring a duty by providing assistance or otherwise voluntarily assuming responsibilities. b. If someone comes in, begins duty and then stops, and the person becomes worse off →L

f. Glanzer v. Shepard

Facts: Seller of beans hired Ds, professional weighers, to certify the weight of the bag of beans being sold to the Ps. Ps paid the seller according to weight of the beans certified by the Ds. After purchase, Ps found out the actual weight was less than the weight the Ds had certified. Ps sued Ds to recover amount they originally had overpaid to the bean seller. Analysis/reasoning: Holding for P bc the law imposes a duty toward buyer as well as seller in the situation here disclosed. Ps use of the certificates was not an infirect or collateral consequence of the action of the weighers. It was a consequence which, to the weigher's knowledge, was the end and aim of the transaction. Class notes: o A (sellers) contracted with B (weighers) and sold the beans to C (purchasers) & bc that contract bw A & B was performed negligently, it harmed C o Similarity bw Moch & Glanzer is that their harm is caused by the negligent performance of those contracts o Distinction is that in Glanzer, the consequences are easily predictable o Underlying policy is that we can say there was a breach or some kind of negligent act, but just purely out of policy, we want to limit that; we want people to be able to calculate to predict their levels of liability if they act this way o In moch, you can see how that would open company up to widespread liability but in glanzer it's a very specific circumstance

9. Miller v. Civil Constructions, Inc.

Facts: Shooting range case Analysis/reasoning: No liability bc firearms aren't inherently dangerous on their own. With use of proper care, injuries can be prevented. Social value and common usage of firearms especially by police officers, which frequently used the range

d. RS § 289 - Comment n - Inferior Qualities [p128]

If the actor is a child, allowance is made for his inferior qualities of mind and body, and the standard becomes that of a reasonable man with such qualities. If the actor is ill or otherwise physically disabled, allowance is made for such disability. Expect in such cases, the actor is held to the standard of a reasonable man as to his attention, perception, memory, knowledge of other pertinent matters, intelligence, and judgment, even

Distinguishing Woodbridge and Katko:

In Katko, the act itself was unlawful (rigging a spring gun) indiscriminate punishment (firefighters or robbers alike would get shot); they're also silent (no warning) In Woodbridge the act itself is not unlawful (keeping a ferocious dog). Dogs are designed to deter trespassers, not necessarily to bite or punish ppl

Distinguishing Woodall & Murphy: scope and consent

In Murphy the risk the P took was w/in scope of what he should have expected and he consented to getting on the ride. In Woodall the risk was outside the scope of the risk the P assured against; he also didn't consent to having an unqualified driver. You can't assume the risk of another person being negligent. You can't assume the risk of another being negligent Risk assumed v.not assumed needs to be addressed

f. Policy concerns:

Information problems: consumers don't know how to evaluate safety features b/c there isn't adequate information or ppl don't know how to process the info Role of the court: This might be something for congress to tackle because court's maybe shouldn't be making public policy by doing these balancing tests. Why are juries making this stuff up and not federal agencies? Counter: if you wait (i.e. don't legislate) & let courts decide, you get to see what actually happens as the accidents occur Inconsistent verdicts: it'd be hard for members of the industry to alter their design and production behavior in response to the jury verdicts in such cases because juries might decide differently what can be considered a defective design. Also, if cars are supposed to be super rigid, that would mean heavier, less gas efficient cars, which isn't what society demands and thus it wouldn't be as efficient.

Candler v. Smith

Rule of Law: Facts: Escaped baboon Analysis/reasoning: Liability bc a person can take optimal levels of precaution, but it still might not eradicate accidents

Madison Avenue Gourmet Foods, Inc. v. Finlandia Center, Inc.

Rule of Law: A business may not maintain a cause of action for public nuisance where it sustains economic losses resulting from a city's decision to close public streets surrounding the business because the business did not suffer a harm greater than, or different from, any other business in the area. Facts: P brought suit against D, & others for economic losses it suffered as a result of a partial collapse of a building in NY & the subsequent closure of streets in the area which cut off the public's access to the P's store Analysis/reasoning: A public nuisance is conduct that amounts to a substantial interference with the exercise of a common right of the public. Unquestionably, the right to use public streets was invaded by the collapses in these cases, as well as NY's decisions to close off the affected areas. However, P's business did not suffer a special injury beyond that suffered by the community at large, so as to entitle them to bring a claim for public nuisance. Every person who maintained a business, profession, or residence in the affected areas was exposed to similar economic losses. Thus, bc the loss alleged by P is not a different kind of harm, they cannot recover damages for the invasion of a public right. P must show that he suffered harm different in kind from the harm suffered by the general public. This helps to exclude large numbers of small claims and to encourage appropriate deterrence of the public nuisance through administrative action or criminal prosecution. Have to draw the line somewhere b. The Negligent Infliction of Emotional Distress To establish a prima facie case for intentional infliction of emotional distress, the following elements must be proved: An act by D amounting to extreme and outrageous conduct; Intent on the part of D to cause P to suffer severe emotional distress, or recklessness as to the effect of D's conduct; and Damages— severe emotional distress. D's conduct must have proximately caused P's emotional distress. Can divide emotional distress into intentional & negligent Where ED accompanies physical injury, the general rule is that you can recover 2 types of cases; involving direct victims & bystanders Restat. 3rd §47: neg. conduct directly inflicting emotional disturbance on another An actor whose negligent conduct causes serious emotional harm to another is subject to liability to the other if the conduct: (a) places the other in danger of immediate bodily harm and the emotional harm results from the danger; or (b) occurs in the course of specified categories of activities, undertakings, or relationships in which negligent conduct is especially likely to cause serious emotional harm.

Watson v. Kentucky & Indiana Bridge R.R.

Rule of Law: A negligent D is not liable for the intentional intervening malicious acts of a third party which are not reasonably foreseeable. o A criminal act of a third party that causes harm in concurrence with a negligent act is generally not a reasonably foreseeable consequence of the negligent act. Facts: P sued railroad for injuries sustained when oil spilled from the train caught on fire by a match dropped by a third party. Analysis/reasoning: The Q of proximate cause is one which should be decided by the jury. Thus, in this case it was for the jury and not for the court to determine from the evidence whether the lighting of the match was wanton and malicious. The escaping of the gasoline due to D's negligence and the probable consequence of it coming in contact with fire and causing an explosion was doubtless. It was most probable that someone would strike a match to light a cigarette, and such action under the circumstances of the case cannot be said to be the efficient cause of the explosion. An explosion could not have occurred without the primary negligence of the railroad. On the contrary, if the action of the third party in lighting the match was malicious and intentional, then D is relieved of liability. D could not have reasonably foreseen that a person would maliciously light a match for the evil purpose of producing an explosion. Thus, if the intervening agency is so unexpected or extraordinary as that D could not or ought not to have anticipated it, D will not be liable. A D is not bound to anticipate the criminal acts of others and is not liable for them. Class notes: o Ct. reversed & remanded original holding for D bc says you first have to determine was this inadvertent or was it purposeful o This is also a necessary but not sufficient cause, but distinct from Brauer bc first have to determine whether the other act was purposeful o You can arg. that in Brauer, the RR's neg. act invited the third act, in some sense; there was an invitation in a sense to steal those goods • The RR's neg. act made it sig. more likely that the intervening force would result o Liability if the other act was inadvertent but not liable if it was malicious since this is not a foreseeable result of the act • Unforeseeable if someone is purposefully doing it

Bell v. Campbell

Rule of Law: A person is not liable for injuries that occurred to people for which there's no duty and a person doesn't have a duty to someone who isn't within the foreseeable risk. Facts: Drunk driver hits overturned trailer. P sued all Ds, claiming that the negligence of either or both of them in causing the original accident also was the proximate cause of the decedents' deaths Analysis/reasoning: The accident had run its course and everyone acted with reasonable due care to avoid further accidents until the drunk driver came and crashed into the vehicle. "Entirely independent agency"

8. Bloomberg v. Interinsurance Exchange of the Automobile Club

Rule of Law: Reliance based on a promise to rescue results in liability to D Facts: Ps called for tow truck, who couldn't find them. Drunk driver crashed into their parked car Analysis/reasoning: Ds undertook a duty to rescue Ps and then abandoned the rescue bc they couldn't find them, but they had already made the attempt. It's the kid's reliance that put them in a bad position. Court said if you had just told them you're calling off the search or you can't come and tow them, they could have called their friends or parents, they wouldn't have just sat in their car on the highway. You start a rescue & the victim relies on your rescue. Reliance is another force of alternative

Doughty v. Turner

Rule of Law: A person must take precautions against an event only if it is reasonably foreseeable that the event will cause injury. Facts: Worker accidentally knocked cauldron's compound concrete lid off, causing it to slip into the mixture. Trial evidence said there was no splash when the lid entered the mixture and no immediate injuries to the bystanders. In fact, 2 workers approached the cauldron to watch the lid as it slipped beneath the surface of the mixture. 1-2 min. later the mixture exploded and thrust molten metal onto P, severely burning him. Evidence showed that, prior to the accident, no one supposed the immersion of an asbestos concrete compound in a molten metal mixture could lead to an explosion. However, subsequent testing showed that an asbestos concrete compound, if immersed in a molten metal mixture, will release water and the resulting chemical reaction will cause the mixture to explode. Analysis/reasoning: In any specific case, it does not matter precisely how the P suffered injury, so long as a reasonable person could foresee that the event in question could produce injury in one or more ways. Here, it was reasonably foreseeable that an object, falling into the molten metal mixture, could cause the mixture to splash out and burn bystanders. Turner could be held negligent for failing to take precautions against such falls. However, the event in question was not a splash, but an explosion caused by accidentally immersing an asbestos concrete compound in the molten metal mixture. Prior to the accident, no one thought the immersion of an asbestos concrete compound in such a mixture posed any risk. Thus Turner could not have foreseen the risk, which became clear only as a result of after-the-fact testing. Turner therefore was not negligent. Class notes: o This rule relates to Kinsman bc the damage that results has to be the kind of damage that's expected o But the holding is distinct from Kinsman bc you would expect a splash to burn people, but not an explosion; there's a diff. bw the harm that resulted and the force that produced it; this was an unforeseeable explosion o In Kinsman case, you had both the operation of the forces which were consistent with what we would expect, and the hype of harm was consistent with what we would expect and within the class of things that would cause negligence in the first place

Robins Dry Dock & Repair Co. v. Flint

Rule of Law: A tort against one party does not make the tortfeasor liable to another entity merely bc the injured party was under a contract with that third entity, unbeknownst to the tortfeasor. Facts: P chartered a boat from an ownership group. One of the boat's propellers broke & owners hired D to replace it. One of D's employees negligently dropped the new propeller during installation, so another propeller had to be made. Caused a 2-week delay, so P could not use the boat, causing him economic loss. Analysis/reasoning: P may not recover for economic loss if the loss resulted from physical damage to property in which P had no proprietary interest. The fact that P was under contract to the person whose property was damaged did not make any difference. P had no contractual relationship with D. D was unaware of P's contractual relationship with the owners. The delay caused by D's negligence was not a direct harm to P. If P wants to recover the losses he incurred, he must bring suit against the owners.

Palsgraf v. Long Island R.R. Co.

Rule of Law: D is only liable for negligence if he owes a legal duty to P and breaches that duty, and if the resulting harm was reasonably foreseeable. o Even if an act amounts to negligence, it is not actionable if it does not violate a legally protected interest of the plaintiff. Facts: A man was trying to jump onto a moving train. D (RR) employees tried to help him catch the train. The man dropped a package of fireworks, which exploded. The shock from the explosion knocked down some scales at the other end of the platform, which fell on & injured P Analysis/reasoning: No liability bc P was not w/i the scope of the risk (zone of danger). Analogous to Wagon Mound aka harm within the risk. The majority here used the reasonable foreseeability test to say there was no predictable risk to the plaintiff, while the dissent used the directness test. RR not liable for P's injuries because P's injuries were not a reasonably foreseeable consequence of any possible negligence by the railroad. Here is no possible link between the railroad employees' conduct and her injuries. The package thrown by the employee did not appear to be dangerous, and thus his throwing it could not be seen as an unlawful act that would put P in danger. o D's liability to P2 will depend upon whether the Andrews or Cardozo view in Palsgraf is adopted. Most courts have followed the Cardozo view. • Andrews View the second plaintiff (P2) may est. the existence of a duty extending from D to him by showing that D has breached a duty he owed P1. In short, D owes a duty of care to anyone who suffers injuries as a proximate result of his breach of duty to someone. • Cardozo ViewP2 can recover only if he can est. that a reasonable person would have foreseen a risk of injury to him in the circumstances, i.e., that he was located in a foreseeable "zone of danger."

e. H.R. Moch Co. v. Rensselaer Water Co.

Rule of Law: Negligence in the performance of a contract will not result in liability if the neg. results only in the denial of a benefit, and not an active harm. o To prove that an individual is an intended third party beneficiary of a contract, he must show that the parties to the contract clearly and definitely intended to give him the benefit of the promised performance. Facts: D agreed to supply water to a city, but failed to supply water to fight a fire that destroyed a building owned by P Analysis/reasoning: Liability will be found only if a party's inaction would result in positively or actively causing an injury. Expanding liability further would create an indefinite number of potential beneficiaries of the performance and an involuntary assumption of new relations (policy-oriented doctrine). P is not a beneficiary of the contract between D & the city bc the city was under no obligation to supply water to residents, and there is no evidence of an intention that D be answerable to individual residents.

6. Sanderson v. International Flavors & Fragrances, Inc.

Rule of Law: P cannot shift the causation burden to Ds when P was not injured by a fungible product made by many diff. manufacturers & Ds must represent a substantial share of the market Facts: The one where P was injured by a bunch of diff. perfumes

Johnson v. Jamaica Hospital

Rule of Law: Ps may recover for emotional distress if they are within the zone of danger and their distress results from witnessing serious physical injury or death cause by a defendant's negligence. Parents may not recover for emotional distress suffered as a result of injuries inflicted on a child because of a hospital's negligence, unless the parents are within the zone of danger and witness their child's serious physical injury or death. Facts: Ps delivered a baby at hospital (D). Baby was kept for observation, and the mother was discharged. When the mother returned to hospital one week later, baby had been abducted. More than 3 months later, baby was returned.

Quill v. Trans World Airlines

Rule of Law: Recovery permitted if P is in the zone of danger Facts: Plane almost crashed & P certain he was going to die Analysis/reasoning: Holding for P bc he was in the zone of danger. He was a passenger on the plane and was actually put in immediate danger.

Kershaw v. McKown

Rule of Law: See analysis/reasoning Facts: P's dog had been attacking D's goat. P sued D for killing dog. Jury instruction--if believed from evidence that dog not worth greatly more than goat, and that dog acting in way that would lead reasonably prudent man to conclude it was nec. to kill dog to save life of goat, then verdict for D. Holding for D. Analysis/Reasoning: Must be an apparent necessity for the defense, honestly believed to be real, & acts of defense must be reasonable. Acts beyond reason are excessive. Consequences of proposed act to the aggressor should be considered in connection w/ consequences of nonaction to the party defending, whether the defense be made in favor of person or prop.; in case of defense of domestic animals from attacks of other animals the relative value of animal may be a proper circumstance for jury to consider in determining whether the defense was a reasonable one under circumstances. The law forbids killing by one of another's hog, for ex., in order to protect his own chicken bc result would be to lay down doctrine allowing destruction of $50 hog to save 50-cent chicken.-->standard all out of proportion to the wrong done by hog owner. Other states reject notion that value of a dog should be taken into account in assessing D's liability for shooting animal when it threatens livestock

Wendland v. Sparks

Rule of Law: Under the loss-chance theory, a victim who suffers from a preexisting adverse condition like cancer and is then subjected to another source of injury i.e. failure to resuscitate may have a claim for the second event. o If it were not for the second event, the victim might have survived the first. o This loss of chance is to be treated & evaluated independently from the preexisting condition Facts: the one where doc. wouldn't use crash cart on cancer patient drawing last breath bc her prospects for quality of life if revived were not good Analysis/reasoning: Holding for P bc of 2 types of probabilistic losses P sufferedlost chance that efforts at resuscitation would have been successful (relevant to liability & to damages) & the loss of chance that if she had been resuscitated she might later have been cured of her disease (relevant only to damages) Class notes: Under the traditional approach, if the odds of her not recovering from the CPR were greater than the 50%, then no liability; if it was greater than 60%, then she would recover but then that recovery would be discounted based on the short life span that she had left bc of her cancer (that's why that first type of probabilistic loss deals with both liability AND damages o Under the loss of chance doctrine, if the chance of success of the CPR is greater than 50%, then same thing--she gets full damages but discounted by amount of short lifespan she has left; if not, say the likelihood of her recovery was only 20% under loss of chance doctrine, than she would take the full amount of the reward, discount it by 20% & also discount by the amount of the short lifespan that she had left o In the medical context in particular, courts have held that even where its below 50% even when you're background risk is above 50% i.e. if your chance of survival when you go into the surgery is below 50%, then you can still recover for the percent difference that the doc's neg. added

Steinhauser v. Hertz Corp.

Rule of Law: Where a D's negligence precipitates the onset of harm to a plaintiff, the negligence is the proximate cause of the harm. Facts: The one where the ******* was diagnosed with schizophrenia after a car accident, and expert witnesses testified that she had a predisposition to schizophrenia & that the accident was a precipitating cause of the manifestation of the condition. Analysis/reasoning: Holding for P bc precipitation of the harm means that the negligence sped up the manifestation of the harm; it does not mean in this context that the negligence is the but-for cause of the harm. In this case, P may be able to recover based on the Ds' negligent causing of the accident even though the negligence was not the but-for cause of P's schizophrenia. P had a predisposition for schizophrenia, and the illness possibly would have manifested itself at some point in P's life, regardless of the Ds' negligence. However, it is also possible that P could have lived a normal life without the illness's ever manifesting itself and that the Ds' negligence precipitated the harm. If P can prove this, D would be liable for the harm. On remand, the defendants may seek to prove that the schizophrenia would have manifested itself regardless of their negligence.

5. Sindell v. Abbott Laboratories

Rule of Law: Where multiple manufacturers of fungible goods are named as Ds in a negligence action and it cannot be determined which manufacturer caused the precise harm complained of, the manufacturers will be held proportionately liable in accordance with their market share in the market of the good that caused the injury. Facts: Daughters of mothers who ingested drug while pregnant joined together in a class action lawsuit against 5 major manufacturers of the drug, although they were unable to identify which manufacturer made the actual product taken by their mothers. Analysis/reasoning: Here, as in Summers, the Ps are not at fault for failing to provide evidence of causation. Even though the absence of such evidence is not attributable to Ds in this case, their conduct in marketing a drug, the effects of which were delayed for many years, played a significant role in creating the unavailability of proof. The manufacturer is in the best position to discover and guard against defects in its products and to warn of harmful effects. Thus, holding a manufacturer liable for defects and failure to warn will serve as an incentive to product safety (policy rule). Where, as here, all Ds produced a drug from an identical formula and the manufacturer of the drug that caused the plaintiff's injuries cannot be identified through no fault of P, a rule in favor of finding liability is warranted. Each D should be held liable in proportion to the share of the DES market it held at that time. Key here is that they were fungible products so we can apply market share liability

c. Intent Breakdown

Standard: actor desires to cause the consequences of his act or he believes that the consequences are substantially certain to result from it (Restatement § 8A) Actor must intend the consequences of the act, e.g. A fires a gin. He has to intend to cause harmful contact with B, not only intend to pull the trigger However, A does not have to intend the full scope of the injuries that result. A is liable for whatever consequences stem from his actions. Substantial certainty: needs to approach 100% certain

f. Distinguishing London and Texas:

The idea is we want to construe necessity narrowly. Idea of necessity as addressing a one-time problem v. using necessity as panacea of a societal condition (many thinks this expands necessity too far and goes against the foundation of our system of law). London: chronic condition for poor ppl (London). If the London folks get to stay slippery slope (it could be quite disruptive if we instituted this as some sort of utilitarian, maximizing social benefit, calculus) Texas: Random emergency for presumably middle class ppl with a home somewhere. What happens if sick woman gets to stay no slippery slope because acute occurrence

f. RS §§ 85 & 79 - [p86-87]

The value of human life and limb, not only to the individual concerned but also to society, so outweighs the interest of a possessor of land in excluding from it those whom he is not willing to admit thereto that a possessor of land has, as is stated in § 79, no privilege to use force intended or likely to cause death or serious harm against another whom the possessor sees about to enter his premises or meddle with his chattel, unless the intrusion threatens death or serious bodily harm to the occupiers of the premises

b. RS § 32 - Character of Intent Necessary [p66]

To make the actor liable for an assault, the actor must have intended to inflict a harmful or offensive contact upon the other or to have put the other in apprehension of such contact Example: A throws a stone at B, whom he believes to be asleep. B, who is in fact awake, sees A throwing the stone and escapes by dodging it. A is subject to liability to B If an act is done with the intention of affecting a third person in the manner stated in subsection (1), but puts another in apprehension of harmful or offensive contact, the actor is subject to liability to such other as fully as though he intended so to affect him Example: A & B are trespassing in C's woods. C observes B and points a gun at him, threatening to shoot. A, at the moment, comes from behind a tree and seeing C's gun pointed in his direction, is put in apprehension of being shot. C is subject to liability to A as well as to B

b. Egg Shell Skull Plaintiff Rule

You take your victim as you find him/her; even if there is no way to anticipate the harm that will befall someone, you are still liable for the damages. It doesn't matter that the damages were unexpected, weird, or extreme; or if you couldn't foresee the effects. If you caused them, you are liable. See Vosburg v. Putney The punishment you get in torts sometimes depends on pure chance (i.e. how hurt the person becomes or how bad the outcome is) Public Policy: Derives from the idea of a person's rights to his/her bodily security. By engaging in an infringement of those rights, the plaintiff becomes liable.

TRESPASS • Elements of trespass to land:

(1) Intent to enter another's land a. Voluntary - not under duress b. No knowledge requirement c. No recklessness requirement d. No requirement of harm (2) Actual entry a. By D himself b. By an agent - other persons, animals, machines, or natural or artificial substane over which the actor is responsible (3) No harm requirement a. Does not matter whether actor took reasonable care to prevent the invasion b. Have to be an owner or possessor of land to bring an action in trespass (4) Without owner's consent (sometimes a defense, sometimes an element of prima facie case)

d. Petition of Kinsman Transit Co

- Liable; (1964) [p356] Facts: The Shiras was moored to a dock owned by Continental when ice began to thaw in the river and came lodged btw the boat and the dock. This built up tension eventually causing the ship to break from the dock and collide with the Tewksbury, causing it to become unmoored as well. Tewksbury sailed downstream where it brought down the tower of a bridge; after the Shiras joined it, they created a dam causing flooding. Some 20 Ps sued the dock owner, Continental, claiming it had negligently maintained the dead man where the Shiras was moored. Procedure / Disposition: Ps won. Issue: Holding: where the damages resulted from the same physical forces whose existence required the exercise of greater care than was displayed and were of the same general sort that was expectable, unforeseeability of the exact developments and of the extent of the loss will not limit L. Note: They take the original premise of Wagon Mound but focus on risk rather than foreseeability (i.e. whether the D bears the burden by taking a risk with certain activity). Note: this court doesn't strictly follow a direct test or foreseeable test. It wasn't that the damage was unforeseeable, the magnitude of it, however, was Note: Friendly tries to limit it by the class of harms that occurs; he frames it in terms of the class of harm, distinguished by magnitude. Boats on a river messing up the flow of water is in the class of harms, but a doctor not being able to see a patient is not Rule: no reason why an actor engaging conduct which entails large risk of small damage and a small risk of other and greater damage should be relieved of responsibility for the latter because it had a small chance of occurrence. Note: Court wants to adhere to the eggshell skull P rule → you take the P as you find him. Note: Foreseeability normally works with negligence issues, but when the consequences result on much more than negligence, as is the case here, then foreseeability would never give a P any results. Harm within the risk

3. Woodall v. Wayne Steffner Prod

- assumption of risk must be consented to Liable; (CA 1962) [p599] a. Facts: P was known as the Human Kite, and he was hired by the D to perform for a local TV show; his act required a car pulling him, and he usually used his own driver, but did not this time after being assured by D that they have one of the best drivers in Hollywood. The driver had never done stunts before and didn't present himself as a stunt driver to either P or D. b. Procedure / Disposition: Trial went for P / appeals affirmed c. Issue: being a human kite is a pretty dangerous activity, so can P recover for his damages? d. Holding: yes, because he did not voluntarily accept working with an untrained driver. So you can't claim primary assumption of risk when he had assumed the risk given the assurance that the driver was trained. e. Rule: Assumption of risk must be free and voluntary. If it clearly appears from the P's words or conducts that he does not consent to relieve the D of the obligation to protect him, the risk will not be assume. If, however, he surrenders his better judgment upon assurances of safety or a promise of protection, he does not assume the risk, unless the danger is so obvious & so extreme that there can be no reasonable reliance upon the assurance.

2. Graves v. Church & Dwight

- impt to ask if warning would have changed behavior Not Liable; (NJ 1993) [p499] a. Facts: P took a mix of baking soda for an upset stomach; but the baking soda combined with his stomach acid to create and explosion that ruptured his stomach. He sued on failure to warn; he conceded that he hadn't read the label and that he had taken about three times the recommended dosage. D pointed to the fact that he was a smoker and never heeded the surgeon general's warning. b. Procedure / Disposition: jury found baking soda defective for failure to warn but that the failure wasn't proximate cause to P's injury / affirmed c. Issue: d. Holding: Even though he was entitled the presumption that he would've heeded a proper warning if given, that presumption can be rebutted by the analogy that he doesn't heed the Surgeon General's warning therefore he wouldn't heed the baking soda warning Note: not heeding smoking warnings and baking soda warnings are contextually different, how can this be a good comparison? e. Rule: If the D offers significant evidence that the P wouldn't have obeyed a warning—either because he wouldn't have read any warning under the circumstances or because he was prone to disobeying safety warnings in other walks of life—then it becomes a question for the jury whether an appropriate warning would in fact have prevented the P's injuries, with the burden of persuasion on the P.

3. McIntyre v. Balentine

- pure and modified comparative fault unclear outcome; (TN 1992) [p577] a. Facts: D's car collided with P's; there was evidence that D was drunk but that P was speeding. b. Procedure / Disposition: Using c. neg, the jury gave SJ to D / affirmed / remanded c. Issue: what is the best way to take into account the actions of the P? d. Old rule: contributory negligence (TN) bars P from recovery [see p578 for states that still have this rule] Note: on exam, want to ask which rule the state in the hypo would adopt e. New Rule: comparative fault Pure comparative fault: P's damages are reduced in proportion to the percentage neg attributed to him Modified comparative fault: P's recover as in pure, but only if P's neg either (1) doesn't exceed the defendant's negligence [50% jur] or (2) is less than the defendant's negligence [49% jur] (1) is most common 50% rule—the P's negligence < 50% o Example: if D is 49% percent responsible, he pays 0 (b/c P is 51%, i.e. more, responsible). o Example: if D is 50% responsible, he pays 50% of any damages P is awarded. (2) less often used 49% rule - the Ps negligence < the D's negligence o Example: if D is 49% percent responsible, he pays 0 (means the P is 51%). o Example: if D is 50% responsible, he pays 0 (means the P is 50%). Advantages: encourages P to take ordinary precautions (note: if it's the hand formula, this is stuff you should be doing anyway); screens out a lot of claims Disadvantages: Has nice ring to it in, but you're asking the jury to make up these numbers Exceptions: because of evidence, one side's evidence won't be introduced, so you can't prove you did or did not take care. This puts the burden on the P if one doesn't think the reasonable care was taken on their part.

e. Rule: An activity is deemed ultra hazardous when

1) the risk of harm is great (2) the harm that would ensue if the risk materialized could be great (3) such could be prevented by the exercise of due care (4) the activity is not a matter in common usage(highly valuable vs. unavoidable risk) (5) the activity was inappropriate to the place in which it took place (6) the value to the community of the activity is not great enough to offset its unavoidable risks.

DESIGN DEFECTS

1. Design Defects, in general a. It requires that the product leave the hands of a seller/distributor that's in business of selling/distributing that product in defective condition. b. Definition of defect Majority test risk/utility test renders product unreasonably dangerous due to foreseeable risks posed by the product that could be reduced/eliminated with a reasonable alternative design Minority test consumer expectations test says a product is defective, due to the design of product, if it poses unreasonable risks in light of reasonable consumer expectations for what the product will do c. Causation and proximate cause relates 2. RS § 1 (Third) - [p479] a. Product is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor and the omission of the alternative design renders the product not reasonably safe (this falls along the lines of the hand formula)

FAILURE TO WARN

1. FTW standards a. D will be liable if the injury could've been avoided had the P had been notified of the danger b. The risks that are being warned of are risks that are known or should've been known by the seller c. Risks can't be so obvious that the warning's pointless d. A product is defect if the absence of the warning renders the product unreasonably dangerous (meaning a warning could've reduced foreseeable risks).

PRIMARY ASSUMPTION OF RISK (EX. OF IMPLIED ASSUMPTION OF RISK)- PRIMA FACIE CASE ESTABLISHED

1. Primary assumption of risk a. This doctrine that prevents Ps from establishing prima facie case, recovering for injuries they suffer when they freely undertake dangerous activities. In cases where it applies, it means the D had no duty to protect the P from the harm he has suffered or that the D did not breach whatever duty existed. Just look at their behavior. b. Differs from negligence bc we aren't saying the plaintiff did anything wrong. It is just showing when benefits of the risk are voluntarily waived

iii. Surocco v. Geary

11. Rule of Law: A person is not liable for destroying another's property if it is necessary to prevent an imminent public disaster 12. Facts: D, the mayor of San Francisco, authorized P's house to be destroyed in order to stop the progress of a raging fire 13. Analysis/reasoning: This right of necessity is considered a "natural right," independent of society or gov. An individual's property rights must give way to the higher law of impending necessity. A house on fire or about to catch fire is a nuisance which is lawful to abate. Otherwise, one stubborn person could ruin an entire city. If prop. is destroyed w/o apparent or actual necessity, the destroying person would be liable for trespass. A D who damages or destroys another's property in the reasonable belief that by doing so he can avoid or minimize an imminent public disaster is protected against all liability. This "public necessity" is in contrast to "private necessity" cases, where the D is relieved of liability for trespass, but is still liable for any actual harm caused. In a public necessity case, the D must show that public rather than private interests were at stake, that he reasonably believed action was necessary, and that the action he took was indeed reasonable. The individual is immune from liability to induce him to act to protect the public. 14. Class notes: a. What if private citizens took action here, rather than the city?result would have been the same b. Economic efficiency arg. i. We want the efficient outcome; we want that person to make the computation of i.e. is my boat more valuable than the dock ii. Here, you can't do that, bc if the house owners here internalize the costs, they're gonna think of the benefit to them vs. the harm to everyone else

iv. Struve v. Droge

15. Rule of Law: Where public necessity does not exist, and there is no need of a prop. destruction, the person who commits the act is resp. in damages a. Must show that the destruction of a prop. is necessary to produce the effect, but that person is also bound by common law to decided correctly as to such necessity, to protect themselves from liability, to make good the loss 16. Facts: Smoke in apt. case where landlord (D) broke into wrong apt. 17. Class notes: a. What does this holding seem inconsistent with? i. Crabtree bc of reasonable belief b. Does Struve create poor incentives? i. Is it inconsistent with our previous cases? How do we draw the line? ii. In the SF fire case, there is a calculation of value & we don't want people to invoke a privilege of value, but here, at the same time, you're liable if you make a mistake iii. The undertone in this case is that D might have had private motives rather than public and that may have influenced the decision iv. The distinction of the court is that there is a line drawn where we want someone to consider carefully first is there a crisis and can the crisis be avoided by destroying this prop.? c. Qualify thisthe restatement approach in general is inconsistent with this ruling i. Restatement § 262 seems to use an objective standard for public necessity also, so puts it in line with Crabtree (uses the term "reasonable belief," similar to Crabtree)

COMPARATIVE NEGLIGENCE

A theory in tort law under which the liability for injuries resulting from negligent acts is shared by all parties who were negligent (including the injured party), on the basis of each person's proportionate negligence. Example: a truck collides w/motorcycle causing 95% of the force (the truck driver's negligent contributed more to causing the accident), but the motorcyclist was drunk and speeding (greater overall negligence) Oregon court said the focus is on negligence NOT the causation. Here, they would say that the motorcyclists cannot recover 95 % of his damages.

c. Age - standard is the degree of care exercised by the ordinary child of like age, intelligence, experience

Age Rule Source 0 - 5 A child of this age is incapable of negligence R.3d § 10(b) 0-7 A child of this age is incapable of negligence Appelhans 7-14 The standard of conduct is that of a reasonable person of like age, intelligence, and experience under like circumstances R.2d § 283A Exception: activities that are (1) dangerous to others, and (2) normally engaged in only by adults Dellwo R.3d § 10(c) > 14 There is a rebuttable presumption in favor of the child's capacity to commit negligence R. 3d § 10(b)

o Tedla v. Ellman

Car hits pedestrians. Statute says pedestrians must walk on L side of road; they were walking on R. But, they offered evidence that they walked on the R because traffic was much lighter and it was safer. Rule: a statute establishes a general duty of care but reasonable deviations from it with good cause will rebut per se negligence and the issue goes to the jury. Where a statute is calculated to promote public safety then it should not be interpreted as requiring strict compliance where that would defeat the whole purpose.

d. RS § 892 - Meaning Of Consent [p23]

Consent is willingness in fact for conduct to occur. It may be manifested by action or inaction and need not be communicated to the actor f. (2) If words or conduct are reasonably understood by another to be intended as consent, they constitute apparent consent and are as effective as consent in fact. Apparent consent = objective manifestations. It can be via silence; even if the person doesn't agree, if his words/actions do, then there's consent. A person of full capacity who freely and without fraud or mistake manifests to another assent to the conduct of the other is not entitled to maintain an action of tort for harm resulting from such conduct.

6. Transferred Intent

May be invoked only where the tort intended & the resulting tort are both w/I the following: • Assault • Battery • Trespass to land • Trespass to chattels

2. Hurley v. Eddingfield

Drs not bound to enter contract except on own terms Not Liable; (IN 1901) [p230] a. Facts: D had been the doctor of P's intestate for years; the decedent became dangerously ill, but the D refused to come and render medical assistance (no reason whatsoever). b. Procedure / disposition: sustained D's demurrer / affirmed c. Issue: did this doctor have a duty to help, given that he was a family doctor d. Holding: no. At this time, physicians weren't bound to render professional service to everyone who asks for it e. Rule: In obtaining the state's permission to practice medicine, the state does not require, and the licensee does not engage, that he will practice at all or on other terms than he may choose to accept In obtaining the state's license to practice medicine, the state doesn't require the licensee to practice medicine. Any claims of an obligation to the public don't rise to the level of a legal duty

3. Behrens v. Bertram Circus p.394:

Elephant at circus is frightened by dog (that wasn't supposed to be there) and kills dog and knocked down booth injuring Mrs. Behren who was inside with her husband performing as part of their job. Rule: a person who keeps an animal with knowledge of its propensity to do harm is strictly liable for any damage it causes. For wild animals (ferae naturae) this knowledge will be assumed. For tame or domesticated animals, the knowledge requires proof that a vicious tendency was demonstrated to owner, and the act must itself be vicious. The animal is to be evaluated according to the class in general—elephants are generally wild animals, doesn't matter that this one was tamed for circus. One bite rule: if tame animals bites someone the first time, you aren't liable, but then you are put on notice of it ferocious nature. o But even it's had its one bite, we'll still only impute strict liability for ferocious acts (not for dog knocking over child when it's just walking innocently by

Distinguishing Davis & Kerr:

In Davis, the handicapped man took some precaution (via the cane); in Kerr the deaf man took no precaution or due care at all and was actually reckless and dangerous in his activity.

g. If B<LP, then you can be found liable Example:

If the defendant fails to take the precaution of having a bargee on its barge, there is a 10% chance that during the coming year and accident will occur (P=0.10). The total cost of the accident (the typical cost of a barge) will be $100,000 (L=100,000). LP=$10,000, the expected cost of an accident. B is the cost of having a bargee. If this cost is $5,000 then it is negligent to not have a bargee. If it is $30,000 to have one, it is not negligent to do without one. This avoids economic waste.

5. Texas Midland Ry. Co v. Geraldon

L for harm caused by putting out person w/ p/n Liable; (TX 1910) [p103] a. Facts: P and his wife and kid went to the RR to catch a train; by the time they got there the train had already left, so they planned on staying inside over night; a 10 the station manager threatened to call the marshal if they didn't leave. P explained that his wife was vulnerable to illness and that she would get sick if she had to go out in the rain. The guard put them out anyway and they had to walk 300 yards to a boarding house. She got sick, they sued. b. Procedure / Disposition: jury found for P / affirmed c. Issue: Is RR Co liable for damages the wife suffered? d. Holding: yes. The court assumes that the RR agent (1) knew of her susceptibility and (2) that it was raining in such a manner that her health would reasonably be put at risk. From this they find the action of putting her out to be the proximate cause of her physical pain, thus L to the RR. e. Rule: When one has a privilege to be somewhere (to avoid injury, for example), when another puts that person out, s injured, you're L

Pridham v. Cash/Carry Building Center

L if actions increase chance of harm Liable; (NH 1976) [p363] Facts: P's decedent was hit on the head when a clerk in the Ds showroom untied a rope, sending vinyl panels onto the person and knocking him on his back. On his way to the hospital via ambulance, the driver had a heart attack and crashed into a tree; decedent killed in crash. Jury Instruction: if the D is L to the P, he is also L for any addtl bodily harm resulting from normal efforts of third persons in rendering aid. So, if D was liable to P, then P could collect for all injuries suffered in the ambulance crash so long as they were the result of normal efforts of third persons rendering aid. Procedure / Disposition: P won a jury verdict / affirmed over D's claims of an incorrect jury instruction Issue: can D be held liable for harms resulting as third persons taking normal efforts to render aid? Holding: yes. You're more likely to get into accidents when you're in an ambulance; so the rule from the previous case doesn't hold. An ambulance having an accident and crashing is foreseeable, so L. Note: Why do we treat this case differently? You put someone in harms way and put them in need of care. Getting that care is risky. You're L for those related risks you place ppl in. Rule: Again, as long as you get a foreseeable result, how you get there doesn't really matter

Dreisonstok v. Volkswagen

L when making tradeoff b/w convenience & safety Not Liable; (1974) [p490] a. Facts: P was a passenger in a Volks microbus and sued them when she was injured in an accident. P says bus negligently designed and not crashworthy; microbus designed to provide extra cargo space by bringing front seats closer to windshield, which was developed to provide ppl w/max amt of cargo/passenger space for an inexpensive cost; all of this was readily discernible and was a unique selling feature of the vehicle b. Procedure / Disposition: Jury went for P / appeals reversed c. Issue: can P recover for injuries on basis of a design defect? d. Holding: no. P bought this specialized vehicle and then later tried to sue when the specialized features had certain consequences. The diff design was the reason you bought it; you can't sue afterward e. Rule: Consumer Expectations Test: she knew what she was getting into; risk and utility are tied together and hard to compare here Cts cannot find liab when they have to trade convenience for safety (Dreisonstok), but can find liab when they have tradeoff b/w safety and price (Dawson)

b. Lordi v. Spiotta

Liable; (NJ 1946) [p262] Facts: D invited P & her son to visit his summer bungalow when the gas heater exploded and P's son was killed Procedure / disposition: Jury went for P and appeals affirmed Issue: Holding: P was a social guest, but the D's act in regard to closing the valve controlling the gas flow amounted to active negligence that he created, and thus a duty to inform the guests developed Rule: Still no duty to inspect for dangers but there is a duty to use due care in actions to licensees with respect to social guests

7. Globe v. NY Cent. -

Liable; (NY 1919) [p223] a. Facts: A fire broke out in P's factory; D's train was approaching and saw the fire, but kept coming anyway; also, the D's train blocked the route the fire dept needed to use, not just once but 3x. P's evidence was that the train could've stopped anywhere else and it would've allowed the fire trucks to get through. P sued for negligence b. Procedure / disposition: trial court judgment for P / reversed / affirmed c. Issue: did the train conductor have a duty to stop the train? d. Holding: yes, the train owed a duty to the public. In this case, the affirmative act was failing to stop. e. Rule: as to travelers upon it, the railway necessarily has the right of way. But an emergency may arise which requires the temporary reversal of this rule. "The street is still a street and is still devoted to street uses." Hypo: The rule in general was that there didn't need to be notice that there was a train coming, it was up to ppl to look both ways. At this particular crossing, they had hired someone to watch. He wasn't paying attention and someone died. They found him Liable because ppl are likely to pay attention less because of the presence of that person reliance; [Good Samaritan Rule, RS § 323].

Roberts v. Ring

P (7 years old) ran out in front of D's car and was hit. The court held that P would have been considered contributorily negligent had he been an adult, but since he was a child he was held to a lower standard of self-protection. o "A boy of seven is not held to the same standard of care in self-protection. In considering his contributory negligence the standard is the degree of care commonly exercised by the ordinary boy of his age and maturity." o "It would be different if he had caused injury to another. In such a case he could not take advantage of his age or infirmities."

o Martin v. Herzog (p.170):

Pl driving buggy without lights, Def not driving on right side of the road (both violations of statutes). Issue: was Pl's driving without lights in violation of the statute contributory negligence per se? Rule: To violate the safeguard prescribed by law is to fall short of the required standard of diligence and is prima facie evidence of per se negligence. (BUT, to be per se negligent in such a case, the breaking of the law must have been at least a contributing cause of the injury). • Also, violating party can attempt to show that compliance with the statute was not necessary (other lights on highway made headlights unnecessary, e.g.)

Distinguishing Wright and Katko:

Proportionality is key; whereas a petty theft, where no one is home or at-risk of serious injury doesn't rise to the level of using a gun to defend; a robbery, where you are present at risk of serious injury (they had already hit him) does count, present v. non-present. In Wright there was an actual assault, more serious Public Policy: gov't wants a narrow scope of allowing force for protection of person/property so that they can maintain a monopoly on violence/use of force.

c. Lynch v. Rosenthal

RPS does not take into account the mental ability of the P Liable; (MO 1965) [p126] Facts: P was 22 but with the capacity of a 10-year-old and an IQ of 65. The D's wife took P out of a state home when he was 12 and he lived with their family since then. D asked P to help go behind the corn that fell from the picker and place in the wagons pieces that fall; in the process, P's hang got caught resulting in serious injuries. P claims that D was negligent in failing to warn him directly of the danger but D claims that P was contributorily negligent. P provided psychiatry testimony that he would have comprehended a direct warning but couldn't have inferred it. D claimed P was contributorily negligent Procedure / Disposition: found for P / affirmed Issue: was P contributorily negligent? Holding: no. The defendant knew about the plaintiff's mental capacity and failed to give a warning. Here, to recognize a contributory negligence defense on the reasonable person basis would be unjust because P couldn't even appreciate the danger of the situation. Note: In this case, we're looking at not the person's mental ability, but the reasonableness of warning a person with someone of that mental capacity of potential harms to them. A reasonably prudent person would have given him the warning, knowing that he had a mental defect Rule: In cases like this, the mental state of the P will become an issue if it is known by the D.

e. Weirs v. Jones County

RPS is determined somewhat by community Not Liable; (IA 1892) [p129] Facts: Bridge was unsafe, condemned it and there were signs posted saying the bridge was unsafe. P couldn't read English; he drove onto the bridge and suffered damages. P claimed that the county was negligent in not doing enough to point to bridge being unsafe. D claimed they weren't required to do more than they'd done. Procedure / Disposition: verdict for D / affirmed Issue: was county negligent in not putting up more warning signs? Holding: no. Court wasn't required to put up impassible blockades. They did what they were under an obligation to do. P cannot claim that some standard of care shall be applied to him which is not applicable to persons in general Note: The reasonable person, by definition in this case, is someone who can read English. Rule: Reasonable person standard is shaped somewhat by what is ordinary within a community Distinguishing Weirs & Lynch: We treat literacy as different from a mental defect for purposes of deterrence if you're going to hold people responsible, they have to accommodate, creates an incentive to learn [how to read English, for example]; Lynch is incapable of easily learning things of that nature

3. Crabtree v. Dawson-

Rule of Law: If D reasonably believed he was going to be attacked & reasonably believed this amount of force was necessary to avoid threat he assumed here, then he wouldn't be liable 4. Facts: D throwing party. Forcibly removes intoxicated Noble trying to enter w/o paying from prop. Went back upstairs, heard people saying "he is getting some bricks" & then heard footsteps running rapidly up stairs. Mistook for Noble coming back to attack him, was actually Crabtree (P). D hit P in face with butt of musket. Various injuries. Sued for battery. Holding for P, but bc jury had not been prop. instructed; also holding D might yet be found free from liability. Bavli--there is no liability here. 5. Analysis/reasoning: Issue here is whether reasonable belief of D that P was coming to attack him is sufficient to arg. no liability here; whether mistake is a good excuse. There was an "apparent necessity" to commit acts in self-defense. If D reasonably believed, & had reasonable grounds to believe, that he was going to be attacked, & he further believed it was necessary, in the exercise of a reasonable judgment, to strike the "attacker," it order to defend himself from a threatened attack about to be made upon him, & used no more force than was necessary, then he's excused on ground on self-defense & apparent necessity. BUT there's a duty of D to exercise highest degree of care practicable to determine whether person he was about to strike was in fact the one whom he believed him to be.

7. Siegler v. Kuhlman

SL for moving gas b/c destruction of evidence to prove neg Liable; (WA 1973) [p426] a. Facts: A tractor trailer carrying gasoline disconnected on the highway and exploded, killing Carol House. Plaintiff on her behalf sued the driver and owner of the vehicle. b. Procedure / disposition: Court of appeals found D not negligent / reversed c. Issue: Can driver be found liable under SL? d. Holding: yes, the transportation of gasoline as freight by truck was an abnormally dangerous activity. Strict liability should be imposed upon the transportation of large quantities of gasoline because of the likely destruction of cogent evidence from which negligence or want of it may be proved or disproved in a gasoline explosion and fire. e. Rule: SL applied when an action creates dangers that creates potentially disastrous consequences from which the public cannot be protected or which cannot be eliminated by the exercise of reasonable care Compare to Indiana Harbor - There, SL would have no deterrence effect b/c the chemical has to go through cities here. However, SL would have a deterrence effect here

5. Rylands v. Fletcher

SL for trouble caused by risky stuff you keep on land Liable; (Eng 1865) [p404] a. Facts: Rylands hired independent contractors to build a reservoir; during the construction, the Ds contractors discovered a mining tunnel underneath the property, but didn't investigate; it turns out the shafts were connected to a coal shaft owned by P. When they filled the reservoir, the water broke through the bottom and flooded P's tunnels. b. Procedure / Disposition: P lost at trial / reversed c. Issue: is P entitled to recover damages b/c D is SL? d. Holding: yes. A natural v. non-natural distinction; SL applies for uses that aren't natural. Here, there was no need for a reservoir. Note: based on as between two innocents theory: the P has suffered damage due to no fault of his own; D must pay. "But for" D's actions in bringing substance there, P would not have suffered damages. e. Rule: the person who, for his own purposes, brings on his land and collects/keeps anything likely to do mischief if it escapes, must do so at his own peril. If he doesn't, SL for all damage that is a natural consequence of its escape Note: potential defense = escape was due to plaintiff's default or an act of God. 6. Today, cases like Rylands would be analyzed under this Courts use this doctrine when they don't want to straight up deem the activity per se negligent, but want actor to internalize costs to reduce the activity level.

d. Mexicali Rose v. Superior Court

SL when food is unreasonably dangerous Not Liable; (CA 1992) [p477] Facts: Pl swallowed a one-inch bone when eating chicken at Def's restaurant. Pl was injured. He brought claim of strict liability. Procedure / Disposition: dismissed / affirmed Issue: court says that the test is whether this is a substance a consumer would have reasonably expected to find in the food. Should the P have reasonably expected a bone? Holding: Strict liability does not apply in this case based upon consumer expectations. One would expect chicken to contain bones. Note: Distinction between foreign v. naturally occurring objects: If it is naturally occurring, it can be said that it was reasonably expected by its very nature. Rule: Rest §402A comment i: strict liability when food is dangerous beyond that contemplated by the ordinary consumer. Note: if it's natural to the preparation would a reasonable consumer expect? i.e. advertising the chicken is boneless

Welge Principal:

The P in a products L suit is not required to exclude every possibility, however fantastic or remote; the doctrine of RIL teaches that an accident that is unlikely to occur unless the D was negligent is itself circumstantial evidence that the D was negligent. Public Policy: if this weren't the rule defendants would get off, P would not have enough evidence (pocket of immunity; manufacturers would continue to make unsafe products)

8. Desnick v. American Broadcasting Co

The consent has been induced bc of fraud, the consent is generally not a defense to intentional tort However if the fraud does not go into a essential matter, then the consent is still effective

Public Policy:

The court would prefer to err on the side of giving too many warnings than to not give enough. They reject the Ds assertion that free and open communication is essential to psychotherapy; the PP of strong doctor-patient relationships must yield when the disclosure is essential to alert another to danger Questions: does this create disincentives for psychs to counsel certain people to avoid risk of L? And then couldn't that lead to more crazy dangerous ppl killing? Note: basic idea, when there's a particular relationship b/w parties and, because of this relationship, there's a low-cost way to avoid the harm, we believe this gives them a duty to act [NARROW rule] o Background rule: I'm not liable for harms done to you by some third person; main exception is when there's a special relationship b/w the defendant (the actor) and either the third person who committed the harm or the victim Note: this rule does not apply to the police

6. Fritts Rule

There is no accomplice liability if the injury did not arise as a direct cause of the accomplice

f. Reconciling Ellis and Hooper

They can be reconciled by what was known at the time Hooper (1) we know of the value of radios to ships at sea; (2) they could point to at least one company that used radios, showing someone had the forethought; (3) the incidence/magnitude of the risk matters too (storms and weather updates are a necessary part of the job at sea which is why radios were the reasonable standard despite custom Ellis (1) we don't know if the failure to wear a mask caused the illness, potential benefits of the mask could've been very low; (2) the record doesn't show that anyone had given workers masks; (3) the risk of an employee getting a disease from the sand exposure seems much lower

res ipsa policy arg

W/o this doctrine, a person who received permanent injuries as a result of someone's negligence would be entirely unable to recover unless the doctors and nurses in attendance volunteered info. If we don't apply RIL, any time you're knocked out in surgery, and ppl in room know what happened but you don't, it would be near impossible to recover. Also, would doctors ever rat on each other or tell what really happened? NO, so we need to put the burden on them to really find out what happened (a fear of a conspiracy of silence). We're also worried here about the multiple defendant's problem; you might be punishing ppl who weren't responsible, but sue them all and then they can fight amongst one another; they will smoke one another out Market balances things out shoplifting example Insurance voluntary restitution for another Reasons for collective liability As an instrumental matter, imposing collective liability can be a good way of identifying perpetrator - delegate task of pinpointing wrongdoers to group Corrective justice - ensures D's are held liable in situations where P has difficulty establishing liability

5. Harmful or offensive contact

a. Contact can be direct (i.e. person A hits person B) or indirect (i.e. when A causes B to come into contact with a foreign substance that is offensive). Indirect contact can be inflicted through clothing or by anything held or attached to one's body. Indirect includes objects intimately associated with the victim's body (i.e. throwing water on him, setting a dog lose on him, or soaking a towel in filth that actor knows the person will likely use).

5. RS § 321 - Duty To Act When Proper Conduct Is Found To Be Dangerous [p221]

a. If the actor does not act, and subsequently realizes or should realize that it has created an unreasonable risk of causing physical harm to another, he is under a duty to exercise reasonable care to prevent the risk from taking effect b. The rule in (1) applies even though at the time of the act the actor has no reason to believe that it will involve such a risk.

Medical ethics

a physician may not reveal the confidence entrusted to him in the course of medical attendance...unless he is required to do so by law or unless it becomes necessary in order to protect the welfare of the individual or the community.

o Mult. suff. causes require

a true exception to the but for test • Exception is that we're shifting the burden of proof • If a case is found to have mult. suff. causes, there will be liability for both of the tortfeasors/both sources of the fires; Summers is a perfect example • Each one has to be sufficient on its own to produce the result 1. That is the exception to the but for standard bc in a multiple sufficient cause situation, but for fire A, fire B would have destroyed the house anyway; but for fire B, fire A would have destroyed the house anyway

3. RS 3d § 20 - Strict Liability (Third Restatement) [p]

a. A D who carries on an abnormally dangerous activity is subject to SL for physical harm resulting from activity. b. An activity is abnormally dangerous if: The activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors and; The activity is not a matter of common usage c. Note: the absence of the social utility factor. They dropped it because the analysis can be really subjective; communities value things differently

6. RS §892B - Consent under Mistake, Representation, or Duress [pp. 23]

a. A permits B to stain A's face with walnut juice, for purposes of masquerade. A is ignorant of the fact that walnut juice leaves a permanent stain and B knows that A does not know it. B is subject to liability to A for battery.

12. RS § 220 - Definition of Servant [p444]

a. A servant is a person employed to perform services in the affairs of another and who w/respect to the physical conduct in the performance of the services is subject to the other's control or right to control. b. In determining whether one acting for another is a servant or an independent contractor, this is considered: the extent of control which, by agreement, the master may exercise over the details of the work whether or not the one employed is engaged in a distinct occupation or business the kind of occupation w/r/t whether the work is done under the supervision of the employer or is a specialist w/o supervision the skill required in the occupation whether the employer or the workman supplies the instrumentalities, tools and the place of work for the person doing the work the length of time for which the person is employed method of payment, by time v. by job whether or not the work is a part of the regular business of the employer whether or not the parties believe they are creating the relation of master and servant; and whether the principal is or is not in business 13. Yazoo (Nondelegable duties fall under negligence not strict liability, so they can't be found under this)

6. RS § 322 - Duty To Aid Another Harmed By Actor's Conduct - [p222]

a. If the actor knows or has reason to know that by his conduct, whether tortious or innocent, he has caused such bodily harm to another as to make him helpless and in danger of further harm, the actor is under a duty to exercise reasonable care to prevent further harm

CUSTOM AND CONTRACT 1. General Rule

a. In most jurisdictions a defendant's compliance with custom or violation of it generally is considered probative evidence that the jury may consider in a negligence case but isn't regarded as conclusive either way.

7. Compliance errors [p207]

a. Accidents in areas with the most safety equipment are the strongest RIL cases; ↑technology that makes an activity unusually safe, ↑chance for error relative to unavoidable accidents the better the technology, the weaker your argument that there was some type of mechanical error or something wrong with the vessel and the stronger the argument that the accident was the result of negligence, because the equipment was so sound Advances in technology tend to increase the number of claims, but reduce the magnitude of those claims b. Cruder safety technology leads to higher rate of unavoidable accidents. With more rudimentary technology, the required rate of precaution is lower lower chance of compliance error [see Walston below] b/c the more rudimentary, the more likely that something OTHER THAN negligence caused the accident c. A strong RIL case is one in which the expected rate of compliance error is high relative to the normal rate of unavoidable accident. The purpose of the negligence system is to regulate compliance error in the use of tech

2. RS § 21 - Assault [p65]

a. An actor is subject to liability to another for assault if (a) he acts intending to cause a harmful or offensive contact with another person or apprehension of such a contact and (b) the other is thereby put in such imminent apprehension b. An action which is not done with the intention in (1a) doesn't make the actor liable to the other for an apprehension caused thereby although the act involves an unreasonable risk of causing it and, therefore, would be negligent or reckless if the risk threatened bodily harm

3. Intent Requirement

a. Assault is an intentional tort. The defendant must desire or be substantially certain that her action will cause the apprehension of immediate harmful or offensive contact. The transferred intent doctrine is applicable to assault.

ASSAULT

a. Assault: Acts intending to cause harmful/offensive contact or imminent apprehension of harmful/offensive contact (the person is put in fear of the contact); the victim must be aware Example: 90 lb weakling swinging at boxer; assault. you don't have to be afraid, just aware Example: A points a gun at me but I know it isn't loaded, no assault b. Note: contact is NOT an element of assault and mere words are usually not enough

1. Types of Causation

a. Cause in Fact Demonstrating that the injuries would not have occurred if the D had used due care; "but for" the D's negligence, in other words, the P would not have been hurt Common test: whether the harm would have occurred but for the d's failure to have taken the untake precaution that constituted the breach of duty; would the precaution have prevented the accident b. Proximate Cause- apply the two tests by stating these points Asking whether the injuries were too remote a result of the negligence to permit recovery Basic test is reasonable foreseeability Harm within the risk test also (refinement of the foreseeability test) In more basic terms is this reasonably foreseeable

DEFENSE OF PERSON AND PROPERTY 1. Affirmative defenses

a. Claims that while the basic elements of a battery or trespass may be made out, other circumstances also are present that excuse the defendant's behavior Example: (1) the privilege created by the need to defend one's person and property and (2) the necessity privilege

4. RS § 52 - Consent: To Whom Given [p20]

a. Comment b - it should be noted that there will be many cases, as where a patient goes to a hospital and is assigned a particular doctor, but is dealing with and relying upon the hospital rather than the individual, in which the consent given to one may reasonably be interpreted to include the acts of another or of assistants or subordinates

6. RS § 228 - Agency [p440]

a. Conduct of a servant is within the scope of employment if, but only if: (a) it is of the kind he is employed to perform (b) it occurs substantially within the authorized time and space limits (c) it is actuated, at least in part, by a purpose to serve the master and (d) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master b. Conduct of a servant is not within the scope of unemployment if it is different in kind form that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.

1. Elements of Battery (3)

a. Intent on the part of the Δ to commit harmful or offensive contact b. Contact element: That Δ actually caused harmful or offensive contact w/Ψ c. Lack of consent: Prove that contact was not consented to by Ψ. d. Voluntary action.

4. Policy Argument: Negligence vs. Strict Liability

a. Economic rationale: SL standards put pressure on parties to consider whether they ought to be engaging in some other activity altogether. Negligence standards consider whether the activity the actor chose to engage in was undertaken carefully Intermediate level a court could ask whether D's decision about activity levels was itself neg, regardless of how carefully it was carried out b. When you assign SL, rather than have courts figure out the optimal level, you force the corporation bearing the risk to figure out the level of care that they need to take so that accidents don't occur. In this way, SL is like the privatization of LH formula. This a good thing to do if courts are bad at figuring optimal standard of care for corporations; the market, and the desire to reduce costs (via no lawsuits) will guide corps toward creating the optimal level. You incentivize the party best equipped to take precautions to actually do it.

2. Efficiency/Economic Analysis: Contributory v. Comparative Negligence

a. Economists' goal is to find the rules for accident liability that minimize the sum of all the costs involved (of accidents, of precautions and of litigation). The question is which regime creates the better incentives? The rise of c. fault has resulted in the demise of certain tort doctrines designed to cut back on c. neg's harshness. (last clear chance doctrine: secondary assumption of risk) b. Possible Implication: the law should try to induce the party who can prevent an accident at least cost to take precautions against it least cost avoider c. In comparative negligence, the court will use old contributory negligence rules as mere factors for consideration (i.e. secondary assumption of risk, open/obvious risk). Often, court will allow a jury to balance considerations

3. Yania v. Bigan

a. Facts: Bigan was coal mining, and Yania went to Bigan's property for purposes of business. During his visit, he was taunted and cajoled by Bigan, which induced Yania to jump in the water and he drowned. Bigan made no physical act that caused Yania to fall in, and Yania went in on his own. Yania's widow sued claiming Bigan was responsible. She claimed 3-fold negligence: (1) urging him to jump into the water, (2) by failing to warn P of dangerous condition on the land (3) by failing to go to P's rescue after he'd jumped into the water b. Procedure / disposition: court gave D demurrer / affirmed c. Issue: did D have a duty to help P when he saw him drowning in the water? d. Holding: no. the mere fact that D saw P in a position of peril in the water imposed upon him no legal, although a moral, obligation or duty to go to his rescue unless D was legally responsible, in whole or in part, for placing P in the perilous position. The fact that D teased P to go into water doesn't make a difference because P was in full possession of all his mental faculties, which constitutes actionable negligence Note: you don't have to warn people about obvious dangers e. Rule: "If it appeared that the deceased, by his own carelessness, contributed in any degree to the accident which caused the loss of his life, the defendants ought not to have been held to answer for the consequences resulting from that accident. He voluntarily placed himself in the way of danger... upon him rested the consequences...the result of ignorance, or of his mistake, must rest with himself—and cannot be charged to the defendants"

RESPONDEAT SUPERIOR 1. Basic definition of Respondeat Superior [r/s]

a. It means "let the master answer" and generally holds employers strictly liable for torts committed by their employees in the course of their work b. It's an example of vicarious liability - liability for one party based on the wrongs of another 2. Questions you ask for these cases a. Was employee negligent? b. When an employee has engages in a negligent act, was it within the scope of their employment such that the employer is liable? (Was activity aimed at furthering the interest of the employee?) c. Whether the person who committed the act is actually an employee or are they an independent contractor

4. Special relationships that create duty

a. Landowner-invitee, businessman-patron, employer-employee, school district-pupil, hospital-patient, carrier-passenger

STRICT LIABILITY

a. Liability without fault. An alternative rule to the negligence rule; even if you find SL, you still must show causation, injury and duty of care. b. Strict liability is often imposed upon acts that do not involve reciprocal harm. For example, driving is risky for all parties so a negligence standard is applied. However, owning an elephant poses a harm to your neighbor while the neighbor doesn't impose any harm to you-strict liability is imposed (fairness aspect) 2. Categories for SL: a. L for harm done to animals; L for abnormally dangerous activities; L via Rylands; L for employers for employee acts (respondeat superior), products liability b. Note: When you put SL on one party, the incentive for the other party to take responsibility is gone or lessened.

MEDICAL MALPRACTICE 1. General rule

a. Medical malpractice is an unusual area of tort law where compliance with a custom is decisive rather than evidentiary. In these cases, custom is no longer evidence; it is dispositive b. The current majority rule is the modified locality rule

11. RS § 166 - Non-liability for Accidental Intrusions [p35]k

a. No liability if you trespass by accident (here, there is no intent). Example: Ryan throws me over the fence and I land in the Kowalski's yard. I didn't mean to... Example: I have a seizure and fall onto your land. Or even if I trip and fall onto it. It was an accident, NL

7. RS § 158 - Liability for Intentional Intrusions on Land [p33]

a. One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally (a) enters land or causes a thing or 3rd person do so (b) remains on the land (c) fails to remove from the land a thing he has a duty to remove.

ABNORMALLY DANGEROUS ACTIVITIES 1. RS § 519 - General Principle

a. One who carries on an abnormally dangerous activity is subject to L for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm b. The SL is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous a. In determining whether an activity is abnormally dangerous, the following factors are to be considered: (a) the existence of a high degree of risk of some harm to the person, land or chattels of others (B) (b) likelihood that the harm that results from it will be great (L) (c) inability to eliminate the risk by the exercise of reasonable care (unavoidable accidents) (d) extent to which the activity is not a matter of common usage (e) inappropriateness of the activity to the place where it is carried on (f) extent to which its value to the community is outweighed by its dangerous activities b. Comments: SL is applicable even if the dangerous activity was not done on the defendant's land For an activity to be AD it has to create danger of physical harm to others & the danger must be abnormal (unusual or from unusual risks created by more usual activities) Key questions: is the risk creates so unusual, either b/c of its magnitude or b/c of the circumstances surrounding it, as to justify the imposition of SL for the harm that results, even tho it is carried on with reasonable care? Is the harm's dangers and inappropriateness for society so great that, despite any usefulness it may have for the community, it should be require as a matter of law to pay for any harm is cause without the need of a finding of negligence? If an activity is a matter of common usage (it's customarily carried on by many ppl), they aren't seen as Ab

6. RS § 323 - Negligent Performance Of Undertaking To Render Services [p233]

a. One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject ot liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if His failure to exercise such care increases risk fo such harm, or The harm is suffered because of the other's reliance upon the undertaking

7. RS § 324 - Duty Of One Who Takes Charges Of Another Who Is Helpless [p233]

a. One who, being under no duty to do so, takes charge of another who is helpless to protect himself is the subj of L for any bodily harm caused by (a) the failure of the actor to exercise reasonable care to secure the safety while w/in his charge (b) the actor's discontinuing his aid or protection, if by so doing he leaves the person in a worse position.

MANUFACTURING DEFECTS

a. RS 3d § 2 - [p465] A product is defective when, at the time of sale/distribution, it contains a manufacturing defect, is defective in design, or is defective b/c of inadequate instructions or warnings. A product: contains a manufacturing defect when it departs from intended design is defective in design when the foreseeable risks of harm posed by the product could've been reduced or avoided by the adoption of an alt design is defective b/c of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could've been reduced or avoided by the provision of reasonable instructions or warnings Rule only applies to manufacturers and other commercial sellers/distributors (so doesn't apply to a neighbor who sells a product). L attaches even when non-manufacturing sellers or distributors do not themselves render the products defective and regardless of whether they are in a position to prevent defects from occurring. We're still relying on the K to develop of L in regards to manufacturers how damages are spread), but the K doesn't have much relevance on the consumers side. Risk spreading comes again next week. (increasing price to recoup losses from imposition of SL on manufacturers). b. SL and Negligence in manufacturing defects In theory all 3 of the following are SL, but in practice only manufacturing defects has SL because some negligence gets thrown into the other two.

PROXIMATE CAUSE 1. Doctrine

a. RS § 29 - Limitations in Liability for Tortious Conduct An actor's liability is limited to those physical harms that result from the risks that made the actor's conduct tortious b. Three Classes of Damage w/r/t foreseeablity The damages are so typical that judges and juries can't be convinced that they were unforeseeable The facts are so freakish that there is no way they can be construed as foreseeable The middle ground, where the consequences are neither typical nor freakish; if held to be significant, the damages are unforeseeable; if held to be non-significant, the damages are foreseeable. Foreseeability can be determined only after the significant facts of the case have been described; If the official describes them generally, recovery. If in great detail no recovery. Thus, this class is fluid and does not allow accurate prediction

5. Duties to protect others from third parties

a. RS § 315 - Duties To Protect From Third Parties [p242] There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless a special relations exists btw the actor and the third person which imposes a duty upon the actor to control the third person's conduct or a special relation exists between the actor and the other which gives to the other a right to protection

3. Duties to Invitees

a. RS § 332 - Invitee Defined [p266] An invitee is either a public invitee or a business visitor A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public. A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land Comment l: is the invitee goes outside of the area his invitation, he becomes a trespasser or a licensee, depending upon whether he goes there without the consent of the possessor, or with such consent. Thus one who goes into a shop which occupies a part of a building, the rest of which is used as the possessor's residence, is a trespasser if he does into the residential part of the premises without the shopkeeper's consent; but he is a licensee if the shopkeeper permits him to go to the bathroom, or invites him to pay a social call

5. Useful but dangerous products

a. RS § 402(A) - Unavoidably unsafe Products; Comment K [p505](reffered to in brown) Paradigmatic case, drugs; things that are dangerous but useful. As long as such products are properly prepared and marketed and proper warning is given, where the situation calls for it, there is no SL for unfortunate consequences of use. Broad application: courts held that makers of prescription drugs couldn't be held L for claimed defects in drugs' design if they had the appropriate warnings Narrow application: applying it on a case-by-case basis. Criticism: it lacks flexibility and treats drugs of unequal utility equally. They suggest a risk-utility test that focuses on the presence or absence of an alt design is more flexible (although it will rarely allow L).

PART IV: UNINTENTIONAL TORTS: PRODUCTS LIABILITY

a. RS § 402a - Special Liability of Seller of Product for Physical Harm to User or Consumer One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to L for physical harm thereby caused to the ultimate user or consumer, or to his property if (a) the seller is engaged in the business of selling such a product and (b) it is expected to and does reach the user or consumer w/o substantial change in the condition in which it sold (expectation test) The rule stated in (1) applies although t0 (this is strict liability standard for manufacturers, retailers, and wholesalers) (a) the seller has exercised all possible care in the preparation and sale of his product and (b) the user or consumer has not bought the product from or entered into any contractual relation w/ the seller. b. RS 3d § 1 - Products Liability Of Commercial Seller Or Distribution For Harm Caused By Defective Products One who engaged in the business of selling or otherwise distributing products who sells or distributes a defective productive is subject to L for harm to persons or property caused by the defect. c. RS 3d § 2 - Categories Of Product Defect A product is defective when, at the time of sale/distribution, it contains a manufacturing defect, is defective in design, or is defective b/c of inadequate instructions or warnings. A product: contains a manufacturing defect when it departs from intended design is defective in design when the foreseeable risks of harm posed by the product could've been reduced or avoided by the adoption of an alt design is defective b/c of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could've been reduced or avoided by the provision of reasonable instructions or warnings Note: this rule only applies to manufacturers and other commercial sellers/distributors (not private parties selling items) Note: liability attaches even when nonmanufacturing sellers/distributors do not themselves render the products defective and regardless of whether they're in a position to prevent the defects. Legislation has, however, been enacted to immunize these guys in order to avoid wasteful legal costs (and doing that doesn't jeopardize the P's interests) They'll be immunized only if (1) the manufacturer is subject to the jurisdiction of the court of the P's domicile (2) the manufacturer is not nor is likely to become insolvent, and (3) a court determines that it is highly probably that the plaintiff will be about to enforce a judgment against the manufacturer

9. Pegg v. Gray

actual/constructive knowledge dogs will go onto others p/p = trespass Liable; (NC 1954) [p33] a. Facts: P owned a farm and D, who lived on an adjoining farm, was fox hunting when his dog would chase foxes onto P's property; the foxes rattled P's cattle, caused a stampede which damages a fence enclosing them. b. Procedure / disposition: The trial court said no trespass / N.C. S. Ct reversed. c. Issue: does the dog going onto the neighbor's property constitute trespass? d. Holding: yes. If a dog or such comes onto another's property of its own volition under circumstances amounting to an unprovoked trespass, there is no liability. e. Rule: The owner of a reputable dog is not answerable in damages for its entry upon the lands of another upon its own volition under circumstances amounting to an unprovoked trespass. However, the rule is different where a dog owner or keeper for the purpose of sport intentionally sends a dog on the lands of another or releases a dog or pack of dogs with knowledge, actual or constructive, that it or they likely will go on the lands of another or others in pursuit of game. In such cases the true rule would seem to be that the owner or keeper, in the absence of permission to hunt previously obtained, is liable for trespass

STRICT LIABILITY

a. RS§519 A person engaged in abnormally dangerous activity is subject to SL, even if he exercised the utmost care This SL is limited to the kind of harm that makes the activity abnormally dangerous b. RS§520: what constitutes abnormally dangerous 6 factors to consider: 1. high degree of risk of harm (P) 2. likelihood that the harm will be great (L) 3. inability to eliminate risk by exercise of reasonable care 4. extent to which activity is not of common usage 5. inappropriateness of the place where activity occurred 6. extent to which social value outweighs risk (left out of Third RS) Comment: Ordinarily several factors will be required for SL Essential question is whether the risk created is so unusual that it warrants imposing SL even in cases where utmost care is used; or, where exercise of due care wouldn't really prevent the accident Common usage = carried on by lots of people in the community o Just because something is necessary to a particular industry does not make it a common usage o Classic example is automobile: common usage outweighs substantial risks posed by it. No SL c. SL puts pressure on people to consider whether they should be doing activity at all, not just whether they should use a certain level of care—this must be considered in when we apply SL ("activity level analysis") d. Classic cases finding for SL (1) High Risk of Harm (and great harm possible) (2) that can't be eliminated by due care Transporting gas as cargo (Siegler v. Kuhlman) and fireworks display (Klein v. Pyrodyne)

2. In Petition of Trans-Pacific Fishing & Packing Co.

a. Rule of Law: It is the duty of every shipowner and ship operator to use every possible available means to rescue from the sea any and all persons and members of its crew who may be washed overboard. b. Facts: Seaman fell overboard ship c. Analysis/reasoning: Captain here failed and neglected to do so; failed to use due care or to make any effort by turning the vessel about to attempt rescue

6. Lowe v.California League of Pro Baseball

a. Sitting at baseball game gets hit by foul ball court says he assumed the risk

4. RS § 314 - Duty To Act For Protection Of Others [p221]

a. The fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action Note: A person who provides reasonable assistance shall not be L for civil damages unless his acts constitute gross negligence

EXPRESS ASSUMPTION OF RISK (ALIVE AND WELL)- NARROWLY CONSTRUED

a. The plaintiff assumed the risk of the harm that occurred and therefore should be barred from recovery from the defendant the P expressly assumed the risk by formal agreement b. primary the D had no duty to protect the P from the harm suffered because the risk of it was inherent in an activity the P chose to undertake the P chose to encounter a risk negligently created by the D (rare) [this one is a qualification to primary assumption of risk] c. you canot assume the risk os someone behaving negligently, unless it's express d. Note: Assumption of Risk, whether express, primary or secondary, only applies when P is in situation voluntarily e. Did waiver say negligence? Did the person read the waiver? Was the place held open to the public?

4. Apprehension Requirement

a. The victim must perceive that harmful or offensive contact is about to happen to him. b. RS § 24 - What Constitutes Apprehension [p65] If one person does all required for assault, but these efforts don't result in apprehension in the other person (even though the attempt is known), there still is liability. Even if person assaulting is weaker, it's still assault (example of weakling hitting the boxer) The action for assault is a survival from the time when the action of trespass gave to the persons who were the victims of minor crimes a private right of action. The primary purpose of this action was to punish the wrongdoer, although the major part of the penalty imposed upon him went to the private individual aggrieved c. RS § 28 - Apprehension of Unintended Bodily Contact [p66] If the actor intends merely to put the other in apprehension of a bodily contact, he is subject to liability for an assault to the other, although realizing that the actor does not intend to inflict such a contact upon him, is put in apprehension of the contact Example: A, an expect knife thrower, intending to frighten B. who is standing against a wall, throws a knife toward him not intending to hit him. B, though knowing A's intention, does not share A's perfect confidence in his marksmanship and is put in apprehension of being struck by the knife. A is subject to liability to B d. RS § 22 - Attempt unknown to other [p65] If the other person doesn't know about the attempt/the apprehension hasn't occurred in him, then no assault Example: boxer swings at 90lb. weakling behind his back (unaware), no assault

10. RS § 164 - Intrusions Under Mistake [p35] mistake is no excuse for trespass

a. There is no mistake of fact/law defense for trespass...even if the mistake is objectively reasonable (here there is intent, the intent is just wrong...false motivation for the intent) Example: There's no fence at home, and I walk across the entire yard for exercise; however, the back half really belongs to someone else...still trespass. I intended to walk, I just had false motivation.

DUTIES ARISING FROM AFFIRMATIVE ACTS AND UNDERTAKINGS 1. Definitions

a. To prove negligence must satisfy: (1) duty (2) breach of duty (3) cause in fact (4) proximate cause (5) damages Claim in a negligence case: D had a duty to P—i.e. to use reasonable care—& D breached that duty b. Background rule of tort system of liability for unintentional harm: ppl don't start out with duties to one another; a duty must be established, then a breach of duty, before liability can arise c. Affirmative acts: the sort of acts that can create risks for others; The law generally imposes duty on ppl who engage in these 2. RS § 7 - Duty [p218] a. An actor ordinarily has a duty to exercise reasonable care when actor's conduct creates a risk of physical harm b. In exceptional cases, when an articulated countervailing principle or policy warrants denying or limiting liability in a particular class of cases, a court may decide that the defendant has no duty or that the ordinary duty of reasonable care requires modification

4. Considering Ploof & Vincent:

a. Who pays for the damages that result? Even if you are correct in acting, you still may have to pay. Goes to accident prevention/risk pooling. We want to incentivize all parties to take the most reasonable care possible... Ps will act when proper, but will be incentivized to minimize costs at the same time. b. If damages are greater for one than there is agreeance to let the other go c. Note: Under negligence, you don't pay if you aren't at fault; under SL, you pay even if you did what we want you to do. [very important; D in Vincent DID the RIGHT thing, but he still must pay]

5. RS § 892A - Effect of Consent [p24]

a. Your willingness to something can be consent even if the other person acts w/o knowledge of your willingness. b. Consent bars liability on the unforeseeable result of that was consented to. c. But if you are consenting to an act w/ factors that are unknown to you, the consent defense can be overcome.

Failure to warn

about the instructions you failed to give

6. Indiana Harbor v. American Cyanamid Co.

accident easily avoided ~need SL Not Liable; (1990)[p419] a. Facts: Cyanamid was a manufacturer of acrylonitrile. It loaded the chemical onto a railroad tank car for shipment. When the train arrived at its final destination a leak was discovered. About one-quarter of the 20,000 gallons leaked out. The chemical was highly flammable and carcinogenic. Decontamination measures that cost close to $1 million were charged to the switching line, Indiana Railroad. Ps argued that the transportation of acrylonitrile in bulk through a metro city is abnormally dangerous requiring SL. b. Procedure / disposition: Trial ct found that strict liability applied and granted summary for PL; appeals reversed c. Issue: Whether the shipper of a hazardous chemical by rail should be strictly liable for the consequences of a spill or other accident to the shipment en route? d. Holding: no. feasibility of avoiding accident by being careful weakens argument for SL, and in this case, if a tank car is carefully maintains, the danger of a spill becomes negligible. (no need to impose SL) There is no reason given why negligence is not adequate to remedy and deter, at reasonable cost, the accidental spillage of acrylonitrile. It is not corrosive, or destructive. It won't otherwise weaken or damage a tank car's valves. The leak was caused by carelessness, whether American Car, Cyanamid, Ind Harbor, Missouri, or a combination of failures to maintain the car and prevent spillage. The relevant activity here is transportation not manufacturing and shipping.

e. Polmatier v. Russ

an insane act = volitional act, Liable; (CT 1988) [p5] Facts: Russ shot & killed his father-in-law; five hours later he was found in woods holding infant daughter. He described himself as a supreme being and his victim as a spy for the Red Chinese. He had severe case of paranoid schizophrenia. He used the insanity defense in criminal court, but a civil suit was brought too Procedure / disposition: Issue: can P's action be seen as volitional or will the insanity defense protect him? Holding: No insanity defense for tort battery. An insane act is still a volitional act. Rule: As btw two innocents, an insane person may be a sympathetic figure, but not more so than the victim. Note there is liability in tort law, but not so in criminal law Public Policy: Rationale is a deterrence effect, (1) an insanity defense wouldn't incentivize relatives to care for them (2) it would incentivize ppl to fake it.

4. Earl v. Van Alstine

bees are kept near highway and injure Pl's horse. Court thinks bees are technically wild, but in reality are about as domesticated as oxes or cows. They can be controlled with about as much certainty as domesticated animals and cause serious injury about a rarely. Have a lot of social value (and risks aren't as serious) Should not be automatically subject to strict liability. (one bite rule) Note how these cases use SL as a deterrence/precaution mechanism. In Earl we don't want to deter people from keeping bees, because they have social utility that elephants don't.

8. Miller v. Civil Constructors

bullet strays from shooting range that cops use to practice. No SL. Risk of firearms can be virtually eliminated by due care Is of common usage Harm comes from misuse, not inherent in activity Location was appropriate Social value: good for cops to practice

1. Byrne v. Boadle

burden of proof in RIL cases on D, accident evidence of neg Liable; (Eng 1863) [p192] a. Facts: P was walking on the road in front of D's property when a barrel of flour fell on him from a window above; several witnesses saw the barrel falling, but there was no evidence on how the accident occurred. D: There was no proof of negligence or wrongdoing. b. Procedure / disposition: The trial court non-suited the P on the ground that there was no evidence that the D was negligent. / Reversed c. Issue: Is the company liable because they were negligent? d. Holding: There are certain cases of which it may be said res ipsa locquitur, and this is one of them. The barrel was in the custody of the defendant who occupied the premises and the P who was injured by it is not bound to show that it could not fall w/o negligence; if there are any facts inconsistent with negligence it is for the D to prove them. Note: (Pollock) It is the duty of persons who keep barrels in a warehouse to take care that they do not roll out, and such a case is prima facie evidence of negligence. The burden shouldn't be on the P to prove it...the evidence puts the ball in the D's corner and it is his job to rebut the presumption of negligence; he didn't here. Note: P has no way of showing whether this was caused by neg. AND, these accidents don't usually occur unless there was some negligence. e. Rule: Two theories on D's negligence: (1) The parties did not have the same access to evidence bearing on how the accident occurred (Bramwell's point) (2) The accident very likely resulted from negligence (Pollock's point). Even if P can't offer direct evidence of what happened, the fact that the accident happened gets you to the jury

Summers v. Tice (alternative liability)

burden of proof shift to D when have more info than P Liable; (CA 1948) [p332] Facts: P and two Ds went hunting; each D had a gun and the three parties were positioned in a triangle. As the two Ds went for the quail, they both shot in the direction of the P and the P was struck in the face by bird shot. P sued for negligence. Procedure / Disposition: P won and judgment entered against both Ds; they appealed on grounds that the P failed to prove which fired the shot that hit him / affirm Issue: Should the P have to prove which D shot him? Holding: Each D is L for the whole damage whether they are deemed to be acting in concert or independently. Joint and Severable Liability: everyone individually is L for the whole (doesn't mean each pays the full value, but they're L for it. Ds figure out how to proportion it out). Rule: the burden of proof shifts to the Ds when they are in a position where they have more information than the person who was hurt

a. Davies v. McDowell Nat'l Bank

business vs. social guest licensee rules Not Liable; (PA 1962) [p261] Facts: Davies and wife visited the business offices of the wife's stepdad; they called a doctor who revived him, and they told the doctor they would stay with him there until he was able to move to their home. Shortly thereafter, all 3 were dead from carbon monoxide poisoning. Procedure / disposition: Ps estate was nonsuited because there was no way to tell whether the unsafe condition was known, and the s ct affirmed. Issue: were P's social guests or business guests? And was there a duty that was thus violated? Holding: Ct says there were social guests, no evidence was known, so no violation of duty. Rule: No duty to inspect your premises, but if you create dangers with your negligence, then the obligation attaches. No duty to inspect property for dangers to licensees. Two possible standards: Business Guest/Invitee Rule: If they were business visitors the duty of the owner would be to exercise reasonable care in maintaining the premises in a safe condition Social Guest/Licensee Rule: If they were social guests, the owner is L only if the bodily harm caused by the latent dangerous condition was known to the owner and he failed to give warning

2. Duties to Licensees

c. RS § 330 - Licensee Defined [p263] A licensee is a person who is privileged to enter or remain on the land only by virtue of the possessor's consent d. RS § 341 - Activities Dangerous to Licensees [p263] A possessor of land is subject to liability to his licensees for physical harm caused to them by his failure to carry on his activities with reasonable care for their safety if, but only if, (a) he should expect that they will not discover or realize the danger, and (b) they do not know or have reason to know of the possessor's activities and of the risk involved e. RS § 342 - Dangerous Conditions Known to Possessor [p263] A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if (a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and (b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and (c) the licensees do not know or have reason to know of the condition and the risk involved Example: A invites B to dinner. A knows that his private road has been dangerously undermined at a point where it runs along an embankment and that this is not observable to a person driving along the road. A, when giving the invitation, forgets to warn B of this. A is subject to liability to B Example: If, in same situation, A doesn't know the road has been undermined, but could have discovered it had he paid attention to the condition of his road, A is not liable to B

1. Duties to Trespassers

c. RS § 333 - Obligations to trespassers [p258] Except as stated in 334-339, a possessor of land is not L to trespassers for physical harm caused by his failure to exercise reasonable care (a) to put the land in a condition reasonably safe for their reception or (b) to carry one his activities so as not to endanger them. d. RS § 334 - Activities highly Dangerous to Constant Trespassers on Limited Area [p258] A possessor of land who knows, or from facts within his knowledge should know that trespassers constantly intrude upon a limited area thereof, is subject to L for bodily harm there caused to them by his failure to carry on an activity involving a risk of death or serious bodily harm with reasonable care of their safety. e. RS § 337 - Artificial Conditions highly Dangerous to Known Trespassers [p259] A possessor of land who maintains on the land an artificial conditions which involves a risk of death or serious bodily harm to persons coming in contact with it, is subject to L for bodily harm caused to trespassers by his failure to exercise reasonable care to warn them of the conditions if (a) the possessor knows/has reason to know of their presence in dangerous proximity to the condition & (b) the condition is of such a nature that he has reason to believe that the trespasser will not discover it or realize the risk involved.

d. RS § 433B - Burden of Proof [p334]

caused the harm to the plaintiff is upon the plaintiff. Where the tortious conduct of two or more actors has combined to bring about harm to the plaintiff, and one or more of the actors seeks to limit his liability on the ground that the harm is capable of apportionment among them, the burden of proof as to the apportionment is upon each such actor. Where the conduct of two or more actors is tortious, and it is proved that harm has been caused to the plaintiff by only one of them, but there is uncertainty as to which one has caused it, the burden is upon each such actor to prove that he has not caused the harm.

4. Liriano v. Hobart Corp.

certain classes of ppl may require more warning than others Liable; (1999) [p503] a. Facts: P was using his hand to feed meat into a meat grinder whose safety had been removed; his hand was drawn in and chopped off. The D had manufactured it and equipped it with a removable safety, but there were no warnings of removing the safety or using it without the safety. They started adding warnings in 1962. P sued both the maker and the store where he worked claiming to warn that the guard was missing and that his hand could get caught in. b. Procedure / Disposition: Jury found Ds 2/3 responsible with the store bearing the larger share / affirmed. c. Issue: given that attaching guards is feasible, does reasonable care require that meat workers be informed that they need not accept the risks of using unguarded grinders? d. Holding: the fact that meat grinders are dangerous is kind of common knowledge. Even if most ordinary users may know the risks of suing a guardless grinder it doesn't follow that a sufficient number will also know that protective guards are available and that they can ask to use them. This fact creates a duty for the reasonable manufacturer to warn (the failure to warn his was not posting a sign that said "don't use without a hand guard") Issue with this: if we think the initial danger is open and obvious, would this cause an incentive to companies to just not put the hand guards on? Note: the court considered the fact that this person was an immigrant, had only been on the job a week etc; as long as there's a relevant class, such as this class which is foreseeable, then there's something to hook the negligence on to). But isn't the common knowledge standard objective, not subjective? What community comprises common knowledge? e. Rule: You can have a risk that's obvious to some people, but not obvious to a particular class of people (as in the food allergy case). This can cause liability to exist. Then the question becomes what is the cost and effectiveness of providing warnings for that particular class?

7. Indiana Harbor Belt v. Cyanamid p.416:

chemical company ships a large quantity of really hazardous chemical on RR that spills when line is being switched in Chicago and causes a bunch of damage. Note that Cyanamid was involved in the transportation, too—didn't just hand off to someone else. Does a RS analysis—no SL. Posner notes that use of SL for inherently dangerous activities implies that there are cases where due care is futile to protecting against risk (so negligence doesn't suffice), we want to encourage people to adjust their activity (do it elsewhere or not at all) In this case, it was not some inherent quality of the chemical that caused the damage, but that it was negligently stored. Could have been prevented by due care, so not a good case for SL (factor #3) Also notes that it didn't explode, so no evidence destroyed (RIL) SL for inherent danger looks not at properties of the thing, but at the activity It would be completely unfeasible to assert (and PL doesn't) that we just shouldn't manufacture this chemical at all; relevant activity was transportation of it. Holding for SL would imply that a long list of dangerous chemicals shouldn't be shipped on the railways—Posner doesn't want to do this. (factor #4) Pl makes arg that it was inherently dangerous to transport it through big city (factor #5) But RR is hub and spoke so really no choice Even though Def was involved in transport, typically the one who ships won't have much knowledge and control over route taken by transporter. We don't want to hold manufacturers SL for risks that occur during transport. Rerouting may be just as dangerous (poorly maintained lines, journey becomes longer) Therefore there is no reason to think that negligence standard wouldn't suffice to protect against the transportation risks

2. Van Tuyn v. Zurich American Ins. Co.

clause must state L release from negligence Liable; (FL 1984) [p587] a. Facts: P was a patron at D's bar when she rode a mechanical bull. She told operator to go slowly, he said don't worry about it, but did have her signed a "general release, waiver of claim and assumption of risk agreement." The bull started speeding up and she was thrown from it and injured. b. Procedure / disposition: Trial ct gave SJ to D; appeals reversed c. Issue: does the waiver she signed save the place from liability? d. Holding: No. The agreement being reviewed is devoid of any L manifesting the intent to either release or indemnify the D for its own L—it isn't clear enough Note: The waiver would have saved them from intentional tort, SL, some 3rd party damage claim e. Rule: an exculpatory clause may operate to absolve a D from liability arising out of D's negligent acts, but for it to be effective, it must clearly state that it releases the party from liability for its own negligence. In this case, it only released them for liability from her negligence

2. Brosnahan v. Western Air Lines

common carrier's duty to prevent harm Liable; (1989) [p237] a. Facts: P was seated on a plane when he was hit in the head by another passenger's failed attempts to store his bag in an overhead compartment; he sued claiming the flight attendant should've done something to assist the passenger. b. Procedure / disposition: verdict for P awarding $74,600, but trial court gave judgment notwithstanding the verdict to D / reversed, reinstating jury decision c. Issue: did airline have a duty to act even though the harm wasn't created by them? d. Holding: yes. e. Rule: An airline's duty to supervise the boarding process for its protection of its passengers continues until boarding is completed, and the danger created by an airline's breach of that duty doesn't end until all passengers are seated and bags stowed.

1. Riss v. City of NY

d. Rule of Law: Cities are immune from liability for the negligent failure to provide adequate police protection e. Facts: P was injured by an attacker after police ignored her pleas for help; sued police for the failure to provide adequate protection f. Analysis/reasoning: The amount of police protection available to individuals is limited by community resources and is a legislative-executive decision. For this court to proclaim a new general duty to protect specific individuals would be an unauthorized determination of how the limited police resources should be allocated. Fixing municipal liability upon a showing of probable need for protection would be an improper assumption of legislative authority. Thus, there is no warrant for the courts, in absence of legislation, to carve out an area of tort liability for police protection to members of the public. This is quite different from the situation where the police undertake responsibilities to particular members of the public and expose them, without adequate protection, to the risks which materialize into actual losses.

3. Vincent v. Lake Erie Transportation Co

compensation might still be necessary Liable; (MN 1910) [p100] a. Facts: D owns a ship and had it moored to P's dock as it was unloading cargo; a storm came in after loading was complete whereby navigation was practically suspended. D tried to get a tow from the dock, but no one could do it due to storm; in process of ship staying on dock during the storm, the dock was severely damaged. The dock owner sues for damages, but the D defends that it was a necessity to dock there. b. Issue: does D have to pay compensation for damage to P even though he had a private necessity to dock there? c. Holding: yes. Even though the defendants were not at fault in remaining moored to the dock (b/c all they had to do was exercise ordinary prudence and care) they're still liable for the damages that resulted from their ship remaining moored to the dock. Note: Idea is that where the D prudently and advisedly availed itself of the P's property for the purpose of preserving its own more valuable property, then the P is entitled to compensation for the injury done. We're making value judgments about what is more valuable, your property or theirs. When you choose yours, compensation must still be made. Dissent: Puts the risk on the dock owner: if the dock owner's performance on the contract puts him at risk, then he should've contracted for adequate compensation for it. Regardless, the burden is his. d. Rule: Public necessity in times of war and peace may require the taking of private property for public purposes, but under our system of jurisprudence compensation must be made.

2. The TJ Hooper

compliance w/custom ≠ defense to a tort claim Liable; (1932) [p159] a. Facts: Two barges were lost while being towed by the petitioner's tugboats; they didn't carry working radios that enable them to hear about the coming bad weather, so were charged with negligence. The defense is that there wasn't a custom to carry radios (they point to only one ship that did it). The individual bargees had radios, but not the companies themselves. b. Procedure / Disposition: trial court found tugboats unseaworthy (L) / affirmed c. Issue: if it wasn't general custom for bargees to equip their own ships, not was it custom for the ships to come equipped, can company be found liable? d. Holding: yes. They are liable. The tugs were improperly equipped; the injury was a direct consequence of this unseaworthiness (admiralty negligence tort). Note: in most cases, reasonable prudence is in fact common prudence, but strictly it is never its measure. Courts must way what is required and there are some precautions so imperative that even their universal disregard won't excuse their omission. In this case, there was no custom one way or the other Note: The radios were a small cost and reasonably reliable if kept up; they are a source of great protection. If you have device that is necessary and useful, other's can't slack and point to custom to get out of L. Common practice helps determine prudent care, but isn't the sole measure e. Rule: Compliance with custom helps determine appropriate level of prudent care, but if the custom is below the standard of due care that should be taken, then the compliance w/that doesn't matter. Custom isn't necessarily a defense; it's evidence of a standard of care, but not a definitive reflection. "Courts must say. In the end, what is required; there are precautions so imperative that even their universal disregard will not excuse their omission."

f. The Margharita:

crewman is bitten by shark. Boat doesn't stop on its voyage but continues to port where he has a small additional portion of leg amputated, but generally the operation goes the same as it would have had they stopped earlier. Court: no great additional damage to leg was caused by the delay, only pain and suffering is at issue. Pl assumed the risk by taking on the job of a seaman There were high risks involved for the ship to stop at an unknown harbor for help and costs of delaying their cargo, paying crew additional, etc. Based ex-post analysis of injury weighed against these considerations, court finds no liability for the ship. So Hand-type analysis (B>PL), but is backward looking, which seems unfair.

3. Ellis v. Louisville & Nashville RY

custom is test of neg w/r/t methods, etc Not Liable; (KY 1952) [p160] a. Facts: P was responsible for maintaining the mechanism on D's trains that released sand onto the tracks to prevent the wheels from spinning; part of his job included leaning out the window to make sure the sand was falling, which caused him to inhale sand particles. He did this for 25 years and developed silicosis; he sued claiming D was negligent in not providing him with a mask. D's defense is that supplying masks were not a general practice. b. Procedure / Disposition: directed verdict to D / affirmed c. Issue: if it wasn't common practice to give workers masks, can employer be found liable? d. Holding: no. The common practices of ppl cannot be ignored in determining whether due care was exercised by an individual in a particular situation. The law cannot exact a degree of care that would make the majority of the possessors habitually or continuously negligent (38 Am Jur. §34) e. Rule: the test of negligence with respect to instrumentalities, methods, etc. is the ordinary usage and custom of mankind [as long as that custom doesn't show a want of due care]. If it wasn't predictable that the bad thing would happen then we care less about custom

c. Tarasoff v. Regents of U of CA

duty to protect foreseeable victim>confidentiality Liable; (CA 1976) [p242] Facts: Poddar killed the P's daughter. The Ps allege that 2 months earlier Poddar had confided his intentions to kill the girl to a shrink employed by Berkeley's hospital. At the shrink's request, the police briefly detained Poddar, but released him when he appeared rational. No one warned the girl or her family. Ps sued on one count of failure to detain a dangerous patient and one count failure to warn of a dangerous patient. Ds contend they owed no duty to the girl or her parents. Ct finds a duty Procedure / disposition: trial court dismissed / reversed in part (said they did have a COA against psychiatrists but not against police officers) Issue: did D have a duty of care? Holding: yes, relationship of D's therapist to either P or Proddar will suffice to establish duty of care. "Protective privilege ends where the public peril begins" Note: Psychs might argue causation (even if he said something, there was no guarantee that the death still wouldn't have occurred) & that they couldn't have predicted Proddar would actually kill Rule: under c/l, as a general rule, one person owed no duty to control the conduct of another, nor to warn those endangered by such conduct, the courts have carved out an exception to this rule in cases in which the defendant stands in some special relationship to either the person whose conduct needs to be controlled or in a relationship to the foreseeable victim of that conduct

4. Frank v. United States

duty to put forth diligent rescue effort, private salvor Not Liable; (1957) [p232] a. Facts: P's decedent was a passenger aboard a ship; the boat became disabled during a storm; the only available Coast Guard boat was dispatched, the rescue failed. P sued the US claiming (1) the coast guard's reverse gear was defective, which delayed them in reaching P; (2) the life rings were secured in a way that they couldn't be thrown overboard; and (3) he died because their equipment was less than customary b. Procedure / disposition: found for D / affirmed c. Issue: is the coast guard / US liable? d. Holding: no. the responsibility of this public agency rises no higher than that of a private salvor. There is no e. Rule: "We have only a diligent rescue effort which proved ineffectual for lack of adequate equipment, preparation or personnel. For much ineffectual effort a private salvor is not liable. Reconciling Frank and Lawter: In Frank the Coast Guard didn't place them in a worse position, so it was ok; they weren't even able to initiate the rescue. In Lawter, the Coast Guard did place them in a worse position, so L; the rescue has been initiated but it gets messed up. Two considerations: What they did that was negligent made them worse off (increased danger); OR the person who needed rescuing was relying on you to save them, but you messing things up kept them from being able to be saved at all (reliance situation) [See RS 323];

3. Brown v. McDonald's Corp

duty to warn based on likelihood of harm unclear outcome; (OH 1995) [p501] a. Facts: P purchased a McLean Deluxe from McDonald's and afterward she developed a rash and such from an allergic reaction to the seaweed ingredient in it (she had a seafood allergy); she said they should've warned her of the ingredient, but D said there was a flier available to customers listing the ingredients. b. Procedure / Disposition: SJ to D / reversed c. Issue: can P recover even though her harm was fairly unusual? (i.e. not a lot of ppl are allergic to seaweed) d. Holding: Whether the P's harm was unusual is a factor in the reasonable care analysis, but isn't dispositive; it must go to a jury to decide. The statute asks whether a manufacturer exercising reasonable care would warn of that risk in light of both the likelihood and the seriousness of the potential harm. The flier wasn't enough/was inadequate because given this risk, a consumer wouldn't think to ask about presence of this ingredient. This is not a reasonably foreseeable risk in relation to this product e. Rule: The duty to give warning is based on both the likelihood and seriousness of the potential harm. This looks a lot like LH formula. Consider the #of ppl who'd be affected and amount of harm they'd suffer Think back to open and obvious from design defects; this is not something that someone who buys a veggie burger would be concerned with. Policy: should the burden be on the woman to ask? She has the allergy so she may be in the best position to know. This is the type of thing to work into an exam answer. If it's the type of thing that ppl can tell by checking, perhaps there should be a burden on them But if you're getting a meatless hamburger, there shouldn't be seafood in it either, no?

5. Konradi v. United States

economic interpretation of r/s unclear outcome; (1990)[p438] a. Facts: Farringer the mailman was driving to work when his car collided with the P and killed him; P's estate sued the D. Trial ct gave SJ to D, but Posner reversed finding SJ premature. Normally, when commuting to and from work, Indiana law does not consider that a part of the scope of employment b. Procedure / disposition: SJ to D / remanded c. Issue: does r/s apply? d. Holding: it is possible. Need to look at the employers ability to alter not his care, but his activity in order to avoid accidents economic interpretation of r/s e. Posner's Rationale:There can be an exception to the rule that driving to/from work if the worker has direct control f. Posner theory: by having employees drive their own vehicles, the govt forces more activity, increasing the chances of an accident; to then say the govt can't be L doesn't incentivize them to hire better drivers or to set up car pools or take the train etc. they also were supposed to take the most direct routes to and from work and wear seatbelts, point to idea that commuting to and fro was within scope of employment g. Rule: The employer should be liable for accidents that are made more likely as a result of this directive

11. Miami Herald Publishing Co. v. Kendall

ee vs. ind.con; r/s is n/a to ind.con Not Liable; (FL 1956)[p442] a. Facts: A worker was making home deliveries of the paper when he ran over the P with his motorcycle. P sued the newspaper. The paper conceded that the worker had been negligent, but that the worker was an independent contractor rather than an employee b. Procedure / disposition: Trial found for P / Appeals reversed, holding that as a matter of law the employee was an independent contractor and that RS didn't apply c. Issue: is the worker an employee or independent con? Subsequently, does r/s apply? d. Holding: he is an independent contractor and no, it does not apply Note: wouldn't this encourage employers to do more work through ind.con's and less through ee's because then they don't have to worry about the risk and concerns, just the result? Problem for the public this externalizes L on ppl; there's no way for ppl to collect their damages Judgment proof problem: they companies can externalize the costs of liability to ind.con who would be forced to pay for their liability, but those ppl cannot pay, so they won't be forced to. Then the victim won't be able to get the compensation they deserve e. Rule: if the one securing the services controls the means by which the task is accomplished, the one performing the service is an employee, if not, he is an independent contractor Note: classic test is do they tell them how to do the job, do they control process through which the job is done or do they just say "get it done"? In this case, the employers did not have a lot of control over their workers. The route taken, speed at which he delivered papers were all at discretion of paperboy Note: if you're paid by job vs. paid by hour, then you're probably an ind.con

5. Hall v. Scruggs

egg sucking dog; property v. property Not Liable; (MS 1941) [p91] a. Facts: P owned a dog that kept coming onto D's property and sucking his eggs; this went on for about 3 weeks when D finally shot him (but not while eating his eggs). P sued for the value of the dog. b. Procedure / Disposition: P won at trial / MS S.Ct reversed. c. Issue: was the D shooting P's dog an excessive way of defending his property? d. Holding: no. D resorted in a reasonably diligent manner and for a sufficient length of time to each and all of the courses of action [below], but those reasonable efforts resulted in failure. He had no choice but to kill the dog. Court also rejects P's contention that he could only kill the dog when in the act; the dog had shown a clear propensity for the actions, and would likely continue Note: two ways to read this: (1) property v. property; or (2) utilitarian (after taking preventative measures, shoot the dogs because you need to protect your eggs) e. Rule: In situations like this, the owner has three courses of action to be pursued first: (1) use reasonable efforts to drive the dog away in such an appropriate manner that will probably cause the dog to stay away (2) endeavor to catch the dog and confine him (3) make reasonable efforts to ascertain and notify the owner of the dog so that the latter may have opportunity to take the necessary precautions by which to stop the depredations.

4. Miller v. Reiman-Wuerth Co.

employee on frolic/detour means r/s is N/A Not Liable; (WY 1979)[p437] a. Facts: Defendant employed Grandpre at a construction site. One day G sought permission to leave work to deposit his paycheck and was granted permission. He was involved in an auto accident on the way back to work. Plaintiffs sue employer to recover. P's argued that (1) the trip was, in part, for benefit of company b./c it contributed to G's happiness, making him able to work better; (2) the co exercised control over the trip by requiring G to come right back; and (3) the determination of those two claims, and whether trip was in scope of employment, were questions that should have gone to the jury b. Procedure / disposition: SJ to D / affirmed c. Issue: is r/s applicable? d. Holding: no. practically speaking, with those claims, employees would be in the scope of employment while on vacation, lunch, on weekends, at all times. A reasonable mind wouldn't find these activities to be w/n scope Note: compare to Bushey - going back and forth on dry-dock was part of his job, but driving around or going to cash checks was not part of this construction worker's job e. Rule: an employer is not liable for torts committed by an employee while on a "frolic" or "detour" of his own Note: policy incentives are different here. In Bushey, they could/should have put locks on the valves. There's no real deterrence argument in this case that would lead to less accidents Note: the foreseeability argument here doesn't really work. It's not something you can foresee Hypo: catcalling during lunch, an accident happens, is that something you could foresee? You could maybe foresee the catcalling, but the accident really was not)

1. Ploof v. Putnam

entering/sacrificing p/p of others to save one's life ≠ trespass Liable; (VT 1908) [p97] a. Facts: P and his family were sailing in the waters when a storm came and the family was in great danger; D owned an island, but had hired an employee to push away unwanted boats in an attempt to keep trespassers off his island (he unties it after it was moored). P argues that via necessity, he was compelled to dock his ship on D's island; because he was thwarted by the D's assistant, the P and his family were thrown into the lake and injured. Pl sues defendant for trespass (unmooring the boat) and negligence and carelessness by ignoring duty. b. Procedure / Disposition: found for P / affirmed c. Issue: was D liable in rejecting P from property because it is trespass? d. Holding: no. The doctrine of necessity applies with special force to the preservation of human life. An entry upon land to save goods which are in danger of being lost or destroyed by water or fire is not a trespass. Basically, necessity can justify entry upon land and interferences with personal property that would otherwise be trespass. Note: These sorts of necessity defenses can themselves be a cause of action; you don't necessarily need to assert an independent tort. (I.e. I have a privilege to be here, you put me out, I was injured, you're L) e. Rule: one may sacrifice the personal property of another to save his life of the lives of his fellows Hypo: What if D had erected a gate or a dog to frighten away? A gate or a dog is an indiscriminate, blanket mechanism that operates the same in all situations and is unable to take account for necessity. Here, there was a calculated decision to not accommodate the necessity; a dog or gate, by their nature, would be unable to make that decision. BUT the key is that having a dog/gate is still lawful behavior, so they're okay.

2. Rossi v. DelDuca

entry onto land is privileged if necessary to avoid harm to actor Liable; (MA 1962) [p99] a. Facts: P was being chase by a dog when she ran down a dead-end street; she ran into the D's yard to escape where she was then bit by another dog. P argues, under statute, that "If any dog shall do any damages, the owner or keeper shall be liable for such damage, unless person at the time such damage was sustained, was committing a trespass or other tort, or was teasing, tormenting or abusing such dog." D says that since she was trespassing, she couldn't collect damages and he claim was barred b. Procedure / Disposition: denied motion for directed verdict / affirmed c. Issue: can P collect damages? d. Holding: yes because she technically wasn't trespassing since she was on his land out of necessity e. Rule: One is privileged to enter land in the possession of another if it is, or reasonably appears to be, necessary to prevent serious harm to the actor or his property. This privilege not only relieves the intruder from L for technical trespass but it also destroys the possessor's immunity from L in resisting the intrusion. Normally trespass would erase L, but the necessity excuses trespass claim, so L is intact. Dicta: If you are injured while on another's property, there is no recovery if the damage was sustained while committing the trespass. Distinguishing Woodbridge & Rossi: In Woodbridge the person was trespassing & there was no excuse (NL). Here, the person is trespassing but the justification of necessity cancels the trespass out. (L)

2. Combustion Eng. Co. v. Hunsberger

events that usually happen w/o neg ≠RIL Not Liable (MD 1936) [p193] a. Facts: P was a construction worker on a project that involved rebuilding a boiler room; while working on the floor, the D's workman were working above, trying to drive a wedge btw plates. The wedge slipped out and fell and hit the P on the head. b. Procedure / disposition: P sues and wins at trial, but the court of appeals reversed, holding that there was insufficient evidence to support the verdict. c. Issue: does the mere falling of this wedge count as sufficient evidence that there was negligence? d. Holding: no. It's a construction site and things fall all the time; you can't assume every time something falls that it is a product of negligence. Despite all precautions, things are going to fall sometime; it's a natural part of the job. There's also a different assumption of risk. Even if there was a miscalculation, that doesn't automatically mean negligence, there must be more. Note: Compare to Byrne: Context matters. Walking on a street vs. working a construction job... there's a different level of care D has to show and different expectations. e. Rule: there must be evidence from which the jury might reasonably and properly conclude that there was negligence. If the action itself cannot be presumed to result from negligence because it cannot be supposed that said result is probably the result of negligence every time it occurs, then RIL doesn't apply

b. Cohen v. Smith

exception to implied consent for all hospital staff, Liable; (IL 1995) [p21] o Rule of Law: An offensive touching can occur if a tortfeasor has knowledge of a person's unusual susceptibility & the tortfeasor then violates that susceptibility, even if a reasonable person would not be offended by the touching. • If a physician treats operates on a patient w/o consent, he has committed an assault & battery & damages may be required o Facts: P gave birth at hospital. Told doc. her religious beliefs prevented a male from seeing her naked. Doc informed male nurse (D) of P's beliefs. During surgery, D viewed & touched P's unclothed body. Suit for battery & intentional infliction of emotional distress. Holding for P. o Analysis/reasoning: P directly informed D of his convictions, yet D persisted in doing the opposite of what P asked. Society & courts must accept their right to have their beliefs. Main rationale for battery is to protect personal integrity, which explains why battery encompasses offensive touching in addition to harmful touching. A patient has every right to determine the extent of his own medical treatment, & an action by a doc w/o consent may result in liability.

3. Grabowski v. Quigley

exception to implied consent for general hospital staff, Liable; (PA 1996) [p19] a. Facts: Grabowski slipped & fell on ice and sought treatment from Quigley. After consultation, he agreed to have surgery & went under a few days later. Grabowski had complications from the surgery (left foot dragged) and later learned that another doctor had performed the surgery b/c Quigley had two patients under at same time. He sued for battery, alleging it was a ghost surgery (surgeries not performed by the doctor to whom consent was given) b. Procedure / disposition: Trial court gave summary judgment to the defendants, reversed. c. Issue: did consent given to D extend to doctor who completed surgery or if D commit battery? d. Holding: D liable for battery. Here consent wasn't given to hospital but to a doctor in particular. e. Rule: Where a patient is physically and mentally able to consult about his condition, in the absence of an emergency... an operation without the patient's consent is a technical assault. The consent goes to the specific person you consented to

b. Davis v. Feinstein

extra precautions not expected at level of someone w/o defects Liable; (PA 1952) [p134] Facts: A blind man was walking down the street, using his cane to tap the grounds and abutting buildings to guide his travel. He still fell down an open cellar in front of the D's furniture store. P sued D for neg Procedure / Disposition: P won jury verdict / affirmed Issue: should P be held contributorily negligent? Holding: no. Due care for a blind man meant using reasonable efforts such as artificial aids to discern objects in his path. He's not expected to discover everything that a person of normal vision would. Rule: standard for blind man = standard of reasonably prudent blind man, should take all necessary precautions

3. Adams v. Bullock

foreseeability in the hand formula Not Liable; (NY 1919) [p145] a. Facts: D ran a trolley line that was powered by a system of overhead wires. The line was crossed by a bridge that was used by RRs but also by ppl, because it was in a largely populated area. The P was a 12-year-old boy who came across the bridge swinging a wire rope; when it connected with the trolley wire, he was shocked & burned b. Procedure / Disposition: found for P / reversed c. Issue: can D be found negligent for having this overhead trolley system? d. Holding: no, the system was lawful, nothing like this had happened before, there was a duty to adopt all reasonable precautions to minimize potential accidents, and that duty was met. This accident wasn't foreseeable and you can't find them at fault for not having a different system. Note: D couldn't have counter claimed contributory negligence b/c the boy was only 12 yrs old Note: No direct use of Hand Formula, but he does compare the severe burden to prevent it to the extremely low probability of risk e. Rule: Foreseeability, This was an extraordinary casualty that wasn't within the area of ordinary provision. Reasonable care in the use of destructive/dangerous stuff requires a high degree of care, but that was exercised here. [there was a low P here, not worth it to take the extra precautions] Note: Roin had as problem with the court not considering all the different alternatives

Colonial Inn Motor Lodge v. Gay

foreseeability not required (Eggshell) unclear outcome; (IL 1997) [p360] Facts: D was backing up his car in the parking lot of P's hotel when he ran into a heating unit protruding from the building; D thought he hit the wall but caused no damage. In reality, the hit severed the gas line, and a resulting leak was ignited causing the building to explode. Procedure / Disposition: Trial court gave SJ to the D / reversed and remanded for trial Issue: was there a genuine issue of fact here (I.E. should the case have been heard by a jury)? Holding: yes. The loud sound was indicative of a substantial impact...even a slow-moving car can cause substantial harm. The possibility of colliding with a building and disrupting a gas line isn't so far fetched or freakish. Rule: if the defendants conduct is a substantial factor in bringing about the injury, it is not necessary that the extent of the harm or the exact manner in which it occurred could reasonably have been foreseen. A negligence defendant must take the plaintiff as he finds him, even if the plaintiff's "eggshell skull" results in his suffering an injury that ordinarily would not be reasonably foreseeable.

b. Brzoska v. Olson

fraud won't invalidate consent if not central to consented action, Not Liable; (DE 1995) [p20] Facts: Dentist tested positive for HIV; kept seeing patients until he died. After he died and ppl found out, a group of patients that hadn't known sued his estate alleging battery. Said they wouldn't have consented to contact had they known he had AIDS. Procedure / disposition: SJ to D / affirmed Issue: examining the overall reasonableness of the Ps' fears of contracting the disease, can one determine that the contact/touching by the dentist was offensive? Ps say they wouldn't have given consent for him to perform dental procedures, so is this battery? Holding: you answer this question by asking if there was a channel of infection/exposure to the virus. The doctor had no lesions that came into contact with breaks in the skin of the Ps. So no, it's not battery. Rule: the mistake must go to the essence or material character for what was consented to Battery in the medical/dental setting is limited to those circumstances in which a health care provider performs a procedure to which the patient hasn't consented. A doctor can be held liable for battery when he or she obtains the consent of the patient to perform one procedure and the doctor instead performs another, but if he's performing the action he's supposed to perform it's not battery.

2. Schuster v. City of NY

g. Rule of Law: City owes a special duty to use reasonable care for the protection of persons who have collaborated with it in the arrest or prosecution of criminals, once it reasonably appears that they are in danger due to their collaboration a reciprocal duty to use reasonable care

5. Ocotillo West Joint Venture v. Superior Ct

good Samaritan doctrine #3 Liable; (AZ 1993) [p233] a. Facts: Two men spent the afternoon golfing and drinking at the Ocotillo golf course; the employees took Zylkas keys because he appeared drunk, but Easley stepped forward and offered to give him a ride home. Once they got in the parking lot Easley gave the keys back; Zylka died in an accident. His family sued Ocotillo who defended on the grounds Easley was partially at fault. b. Procedure / disposition: district court denied adding Easley / reversed c. Issue: was there a duty and did Easley letting his friend drive violate that duty? d. Holding: yes. [See RS § 323]When Easley took the keys, he assumed the duty of reasonable care. His words created a reliance situation, the golf course staff did not take on further actions in reliance that Easley would take care of P. You have a duty to not be negligent when taking care of someone who is helpless [See RS § 324] e. Rule: if someone begins to undertakes a duty, then stops and the person becomes worse off L

3. United States v. Lawter

gratuitous actions impose duty not to injure P in rescue Liable; (1955) [p231] a. Facts: P and his family were swept overboard when a wave crashed their boat; the Coast Guard was rescuing the wife via a cable and she was raised to the point that her shoulder's were at the bottom of the helicopter door when she lost her grip and fell into the sea. They sued U.S. claiming the inexperienced workers resulted in her death. b. Procedure / disposition: P won / affirmed c. Issue: did the coast guard breach a duty to P? d. Holding: yes, this constitutes an undertaking that creates a duty for the D to save the P. "D not only placed the deceased in a worse position than when it took charge, but they negligently brought about her death." Note: If the plaintiff's reliance on the rescue efforts caused the harm, then there is Liability e. Rule: when someone puts victim in a worse position than when they took charge, the law imposes an obligation upon everyone who attempts to do anything, even gratuitously, for another not to injure him by the negligent performance of that which he has undertaken. Good Samaritan Rule: If you don't do anything you're fine, but once you lift a finger, you could be liable Misfeasance vs. nonfeasance: you did something wrong vs. you didn't do anything and maybe should have, but we're not going to punish you for it

4. Woodbridge v. Marks

guard dogs consider context of defense of person Not Liable; (NY 1897) [p90] a. Facts: D had two dogs that he knew to be ferocious tied outside of his house as to protect the chicken house, ice house and house itself; they couldn't reach the sidewalk. P was looking for a man he thought was in D's barn; he was walking on the sidewalk but left it because he couldn't follow it in the dark; one of the dogs attacked him. b. Procedure / Disposition: Jury went for P / appeals reversed c. Issue: is D liable for P's damages b/c having the dogs was an excessive use of force? d. Holding: no. The point of a dog is protection; if ppl are forced to keep dogs confined so that under no circumstances they can attack or protect then they are useless. Note: context matters. A court must consider all the factors in determining liability (was he adequately confined; on the property v. allowing to go onto sidewalk, etc.). e. Rule: the mere keeping of a ferocious dog, knowing him to be such, for the purpose of defending one's premises, is not in itself unlawful; and when injury follows from one so kept, the manner of his confinement and the circumstances attending the injury are all to be considered in determining the owner's liability

2. Physical Infirmities a. Kerr v. CT Co.

higher prudency standard required when you know of your defects Not Liable; (CT 1928) [133] Facts: P was a hard of hearing man walking alongside the D's trolley night one night. The trolley came up behind him and the driver realized that if they both continued in their trajectories they would collide. The driver sounded the horn for a while and tried to pull the emergency stop, but it was too late and he knocked over the P and killed him. His wife brought suit; Procedure / Disposition: the trial court found P contributorily negligent but D not negligent / affirmed Issue: was D negligent in not stopping when he saw P was walking close enough to be hit? Holding: no. as a reasonable man, he should have known he was walking dangerously close to the trolley and, if he knew his hearing was bad, he should have taken an elevated level of care that a reasonably prudent deaf man would have taken in the same situation. Also, it is important that D did NOT know P was hard of hearing Infirmities as defenses: o With physical infirmities we can prove it more and it also adds to awareness; there's the idea that they are still functioning, and when using certain tools to their aid, can rise the level of a reasonable person (almost) o With insanity/stupidity, there is usually nothing we can do to make ppl rise to the normal standard, so we want to incentivize them and their relatives to take the proper precautions. Rule: you are responsible for taking certain precautions when you know of your defects. The standard for a deaf man should be that of a reasonably prudent def man. Hypo: taxi driver who is 4 ft and can't see over the wheel hits a kid. Is he liable? o Yes, because he knew all this and still chose to drive w/o taking extra precautions. o Note: if the kid jumped out at such a distance in front of the car where the car couldn't have stopped before hitting him at all, then breach of duty did not cause damages

Public Neccesity

i. Where the act is for the public good (i.e. , shooting a rabid dog), the defense is absolute. ii. Restatement Second §262: Privilege Created by Public Necessity 7. One is privileged to commit an act which would otherwise be a trespass to a chattel or a conversion if the act is or is reasonably believed to be necessary for the purpose of avoiding a public disaster. 8. Illustration 1: In the course of fighting a serious and widespread conflagration, A, a fireman, removes B's car lawfully parked on the highway for the purpose of gaining access to a fire plug. In so doing, A unavoidably damages the car. A is not liable for the harm thus caused. 9. Illustration 2: A, an agister of cattle, kills B's bull, which is in his possession, to prevent a spread of infection which is dangerous to other cattle and to human beings. If the act is reasonably necessary to prevent the spread of the disease, A is not liable to B. 10. Illustration 3: A, a fireman, demands that B get out of his automobile and permit the fireman to drive it to a widespread conflagration. B refuses to turn his car over to A, but offers to drive him to the fire. A is not privileged to take the car.

DiPonzio v. Riordan

if harm was in a different category than negligent act Not Liable; (NY 1997) [p361] Facts: P was a customer at the D's gas station when he was struck in the leg by another patron's car—the patron had left the car running while he ran into pay and the gear shifted while he was away. He sued the D claiming that it failed to enforce its policy that patrons turn off their cars while fueling. Procedure / Disposition: D got SJ Issue: Holding: Natural/probable consequence of a vehicle being left running is fire or explosion, NOT this. This occurrence was outside the scope of the limited class of hazards. "Because this type of accident was not among the hazards that are naturally associated with leaving a car engine running during the operation of a gas pump, the alleged misconduct of Ds employee doesn't give rise to L" Rule: This is a more formal articulation of foreseeability: what does the final act have to do with the original act of negligence? If it is in a different category of harm, no L. The harm and the force were not forseeable There was a negligent act (failing to supervise), but no L b/c the point of having them turn off cars was to prevent fires, not broken legs. It was negligent to not enforce method of fire prevention, not car rolling.

o Distinct from Summers bc

in Summers, we know there were 2 possible causes/2 Ds but it came from only one guy; here, there were 2 actual causes • This is called multiple sufficient cause problemkey here is we need the necessary condition for the but for cause o If this fire had not occurred, would the lumber have burned down anyway? • If yes, it's not a but for cause; that's exactly what happened here • Each fire alone would have been sufficient to have caused this damagethat's what's diff. bw this & Summers o As Kingston held, it does not have to pass the but for test; basically held that as a matter of policy, going to allow both Ds to be held liable, or at least to shift burden of proof so each D can show their fire wasn't the actual cause o Successive multiple sufficient cause problem involves a situation where fires don't burn down the house concurrently, but instead consecutively i.e. one fire comes, then second fires comes o Necessary but not sufficient situationseparate situation to distinguish bc legally you come up with a diff. outcome if that occurs • Multiple sufficient either one could cause it on it's own; one of them if gonna be liable • Necessary but not sufficient hyposomeone rolls through a stop sign & hits someone else & crashes into another car. Driver not wearing his seatbelt. All kinds of injuries result. Those 2 acts of neg. merged together to cause the injury. All parties would be liable. • This is an alternative fact pattern where you have multiple causes, each of which would not necessarily produce the result alone, but all together, they produce the result

2. Mohr v. Williams

in emergency consent implied to procedures not discussed, Liable; (MN 1906) [p16] a. Facts: P gave D (doctor) consent to perform surgery on one ear. After P was unconscious, D found other ear to be in worse shape and original ear to not be so bad. He performed on other ear. P had never complained about problems with other ear and did not expressly say doctor could work on it. Sued for battery. b. Procedure / disposition: c. Issue: was this an emergency situation, i.e. consent implied and D not liable? d. Holding: no this was not an emergency situation, so consent was not implied, D was liable e. Rule: a physician may be held liable for batter when he or she obtains the consent of the patient to perform one procedure but instead performs a different one for which consent was not obtained. The exception to this is in situations of emergency

3. Boyette v. Trans World Airlines

limits of common carrier's duty to protect Not Liable; (MO 1997) [p238] a. Facts: P's decedent got drunk on a series of connecting flights; on his way to one of the connecting flights he stole an electric golf cart; later, one of his friends helped him into an electric trash chute; this activated the electric eye and he was compacted to death. His estate sued the airline claiming they were negligent in chasing him into the shoot. Airline said they owed no duty b. Procedure / disposition: SJ to D / affirmed c. Issue: did the airline, as a common carrier, owe P a duty? Holding: no. duty is discharged once passenger reaches a safe place. He wasn't in the plane, so there wasn't a passenger-carrier relationship d. Rule: A common carrier has a duty to exercise the highest degree of care to safely transport its passengers and protect them while in transit. But, this duty exists only so long as the special relationship of passenger and carrier exists. The carrier discharges its duty once the passenger reaches a reasonably safe place.

a. Herskovits v. Group Health

loss of chance percentage rules Liable; (WA 1983) [p317] Facts: Group Health Cooperative negligently failed to diagnose Herskovits cancer on his first trip to the hospital, reducing his chance of survival by 14 percent. At all times Herskovits had less than a 50% chance of survival Procedure / Disposition: trial court dismissed / reversed & reinstated Issue: Is the relationship b/w the increased risk of harm and P's death sufficient to hold D responsible? Holding: Although plaintiff was unable to establish that failure to diagnosis caused her husband's death, the reduction of chance of survival from 39% to 25% is sufficient evidence to allow the proximate cause issue to go to the jury. Old Rule: P can't recover unless he would have had >50% chance survival if he had been diagnosed earlier Problems: (1) arbitrariness; (2) no deterrence effect if person had <50% chance of survival to begin with, which creates a pocket of immunity Rule: Causing reduction of the opportunity to recover (loss of chance) by one's negligence, however, does not necessitate a total recovery against the negligent party for all damages caused by the victim's death. Damages should be awarded to the injured party or his family based only on damages caused directly by premature death, such as lost earnings and additional medical expenses, etc Example: If a patient has a risk of death of more than 50% to begin with (in other words, the chance of survival is slim at less than 50%), then on a traditional view of causation the doctor's negligence never can be considered the cause in fact of the patient's death: it always will be more likely than not that the P would've died anyway. The doctor's negligence can't possibly double the risk. 51% chance of death already would mean the doc would have to double it to 102% risk, impossible. Potential Problems: making ppl pay based on likelihood draws an arbitrary line. Some ppl might get off for something they "probably" didn't do, but have to pay for something they "probably" did do Public Policy: if you're looking at a case and a win by the D would create a pocket of non-L for tortious conduct, be weary of that. That's when we get nervous and courts start playing with rules

8. Ybarra v. Spangard

minority rule, conspiracy of silence stopped by RIL Liable; (CA 1944) [p208] a. Facts: P consulted D Tilley for diagnosis of his appendicitis and made arrangements for an appendectomy to be performed by D Spangard and Swift. Eventually, when he awakened after surgery he had a pain in his right shoulder, which later turned to be the likely result of some trauma or injury by pressure or strain applied there. He sued all the doctors and nurses for RIL. D's main arguments: doctrine shouldn't apply b/c (1) there were several defendants but there is a division of responsibility among them (independence) (2) there were several instrumentalities used and no showing as to which caused the injury or the particular D in control of it [D's argue no exclusivity] b. Procedure / disposition: trial court entered judgment of nonsuit to all D's / reversed c. Issue: does RIL apply? d. Holding: RIL applies. Where a P receives unusual injuries while unconscious and in the court of medical treatment, all those D's who has an control over his body or the instrumentalities which might have caused the injuries may properly be called upon to meet the inference of negligence by giving an explanation of their conduct Note: An unconscious person has absolutely no idea what happened to him; he has no access to info, and only the doctors know what happened. Those doctors who worked on him need to be held liable because they all had control over the instrumentalities that caused the injuries The number or relationship of the Ds (the fact that there were so many of them and they were, in many cases independent of each other) determines whether the doctrine of RIL applies. It doesn't matter that 1 or more will be L and others absolved; the doctrine places the burden on them to explain what happened. For the same reason, it doesn't matter that the P hasn't pinpointed the exact instrument. B/c today's hospital involves so many workers on a given patient with so many instruments, the doctrine has to be malleable to now meet the current situation. Note: this is the minority rule e. Rule: Three conditions of Res Ipsa: (1) the accident must be of a kind which ordinarily does not occur in the absence of someone's negligence (2) it must be caused by an agency or instrumentality within the exclusive control of the D (3) it must not have been due to any voluntary action or contribution on the part of the P

3. Gambill v. Stroud

modified locality rule (majority rule) Not Liable; (AR 1976) [p166] a. Facts: P's wife was to have surgery, but the surgery was aborted when he wife had complications from the anesthesia; he pointed to the D's negligence as the cause of this. The jury was given instructions that included the locality rule. P argued that this test was no longer applicable to modern medicine b. Procedure / Disposition: Jury brought a verdict for D / appeals affirmed noting that rule was appropriate here c. Issue: is the locality rule an appropriate test to apply or should it be scrapped? d. Holding: The abolition of the locality rule just isn't possible because there are differences in the opportunities of small town doctors e. Rule: Modified Locality Rule. The standard isn't located to that particular community, but rather communities of similar resources, doctors, etc. (whereas the locality rule is like a pure subjective standard, this is closer to an objective individualized standard); the similarity of communities should not depend on the population or area in a medical malpractice case, but rather similarity in medical facilities, practices and advantages. Note: this is the majority rule Note: this considers geography, size, character of the community, etc. f. Economic consequences: Raising the standard of care to above the optimal level (the Hand Formula level where B<LP) can create negative consequences, (pricing ppl out of the market; then you can only help those higher up) fear of malpractice, unrealistic to assume everyone has same resources The background assumption is that the local rule is a lower standard of care; but some doctors, where the community SOC > the nat'l SOC, would like a national standard because it is easier on the doctor

2. Brune v. Belinkoff

national standard rule of SOC (minority rule) Liable; (MA 1968) [p165] a. Facts: D was an anesthesiologist who delivered P's baby; he gave her 8 milligrams of medicine (standard in New Bedford) while the standard in Boston was 5. She became sick and sued for malpractice. He defends on the grounds that he lived up to the reasonable standard of care of doctors in New Bedford. b. Procedure / Disposition: jury found for D / reversed c. Issue: can the locality rule allow doctor to escape liability? d. Holding: no. The court overrules the locality rule, which says that doctors must measure up to the standard of care practiced by those in their profession in the community where he practices, with the rationale that current medical advances level the playing field and doctors in diff locations should know and use same standards Policy: allowing strict locality rule requires a local doctor to come in an testify as to what the SOC is, but this may create a code of silence among doctors in the area e. Rule: National Standard Rule. The proper standard is whether the physician, if a general practitioner, has exercised the degree of care and skill of the avg qualified practitioner taking into account the advances of the profession; a national standard. (no need for local Dr to testify) Note: this is the minority rule Note: there's still an issue of which community you're supposed to measure others up to; the locality rule takes the focus off reasonableness of the doctor and onto whether the doctor acted with the skill of the ordinary community physician Note: here, we can't ask a jury what the reasonable Soc should be, they don't have the expertise

Central of GA Ry v. Price

no L if neg act didn't increase probability of harm Not Liable; (GA 1898) [p363] Facts: P was a passenger on D's train when, due to the conductor's negligence, she was not let off at her stop; she had to stay at a hotel with the intention of catching the morning train back to her destination; while at the hotel, she used a kerosene lamp that she left on all night and exploded, catching her mosquito net on fire. She sued the RR for her damages Procedure / Disposition: P won at trial / appeals court reversed. Issue: can the railroad company be found liable for the P's injuries? Holding: no. The lamp exploding was an intervening cause (the causal chain was broken); there was the interposition of a separate, independent agency in the negligence of the hotel owner, over whom the RR had no control Rule: accident that happened at this hotel could have happened at any hotel. There's no reason to think that the negligent act increased the probability of this harm occurring

7. Hackbart v. Cincinnati Bengals

no assumed risk w/contact outside realm of action Liable; (1979) [p604] a. Facts: b. Procedure / Disposition: Jury found for D / appeals reversed claiming that the instructions incorrect c. Issue: what would a professional football player in the Ps circumstances reasonably expect to encounter in a professional contest d. Holding: this kind of contact was not part of the game; this kind of behavior was condoned. The court said this is battery. If this was within the play then you've assumed that risk, but this was not within the realm of the sport Note: you can't opt out of the regular system of law for the NFL system. People seem to assume that, but it's really not the way it works doctrinally e. Rule: There's conduct that's prohibited by the sport, a really bad personal foul is not within the realm of the game. There is stuff that's outside the realm and you're not supposed to do it. Stuff that is a foul but goes a little bit extra, then that's just wrong and you can be held liable for that 8. Policy a. You want to avoid ppl doing ridiculous things and relying on being able to collect from defendants b. You want P's to take necessary precautions c. The P, when they have this assumption of risk, is the least cost avoider

6. London Borough of Southwark v. Williams

no private necessity when no immediate danger (1971) [p104] a. Facts: A man and his family were homeless and living in London; they had no relatives and the govt housing department was unable to help them, so they found and empty home and squatted there. The borough brought an action to evict them, and they defended on the ground of private necessity. b. Procedure / Disposition: found for P / affirmed c. Issue: is D's case one that prompts private necessity? d. Holding: no. this isn't a case of great and imminent danger where, in order to preserve life, the law must permit an encroachment on p/p. Court references Dudley and Stephens; just like killing isn't justified by necessity, neither is trespassing/taking a home. e. Rule: If a person, being under want of necessity for cloths or food, steals or appropriates them illegally, it is still a felony. If hunger/want of shelter was an excuse, then the floodgate would open (1) to a host of other ppl using necessity for the same reason and more stuff and (2) anarchy would ensue. Public Policy: don't want to incentivize trespass

9. Reina v. Metropolitan Dade County

no r/s when acting outside scope of job Not Liable; (FL 1973)[p442] a. Facts: Pl and bus driver engaged in argument over fare. Pl got off bus and made an obscene gesture. Driver chased down Pl and beat him. Pl sues county. b. Procedure / disposition: directed verdict to D / affirmed c. Issue: is this case distinguishable from Forster? d. Holding: the court said yes. Forster - acting within scope of employment; upset because car was slowing down his bus route. This was in the interests of his employer Reina - the attack appeared to happen only because of the obscene gesture and only after the passenger left the bus. Therefore, the motivation was personal. R/S doesn't apply Distinguished from Bushey in the fact that it was not forseeable e. Rule: Driver was not furthering interests of county when he assaulted passenger and the county was not liable for driver's assault.

4. Manning v. Brown

no recovery if in serious violation of law/injuries direct result Not Liable; (NY 1997) [p584] a. Facts: Two girls went joyriding with a stolen car, both taking turns and driving; when D was driving, she swerved into a pole while changing the radio at P's request...P sued her for her damages. b. Procedure / Disposition: Trial court gave SJ to D / affirmed c. Issue: whether the P's conduct constituted such a serious violation of the law that she should be precluded, as a matter of policy, from recovering d. Holding: the courts will not entertain suit if the Ps (contributorily negligent) conduct constitutes a serious violation of the law and the injuries for which the P seeks recovery are the direct result of that violation. Note: The rule regarding serious illegal action throws you back into a contributory negligence regime e. Rule: one may not profit from one's own wrongdoing; the public policy precludes recovery when the P is injured in the course of committing a serious criminal act . A direct result Hypo: If you and a friend rob a bank and are speeding away, and you friend crashes the getaway car, you can't sue your friend b/c bank robbery was directly tied to the injury that resulted Suppose you make a clean get away and to celebrate, later, you go to restaurant and on way there, driver crashes, you now can sue (no longer tied to illegal conduct)

2. Murphy v. Steeplechase

no recovery when you invite/accept action's dangers Not Liable; (NY 1929) [p597] a. Facts: P went to an amusement park with some friends when he decided, after watching other people, to ride The Flopper. As he came on, the ride jerked forward and he broke his knee cap. P claims the belt was dangerous to life and limb and wasn't properly equipped to prevent injuries, no railing, operated fast, etc. There were conflicting reports on whether people had been injured before. Claimed neg b/c there was an unexpected jerk when he got on b. Issue: should P be allowed to recover for his injuries? c. Holding: no. the risk was invited and foreseen. He saw others on the ride and took the chance of a like fate. d. Rule: volenti non fit injuria. One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary, just as a fencer accepts the risk of a thrs b his antagonist or a spectator at a ball game the chance of contact with the ball. Can't recover when you take a risk in which all factors are known to them

9. Wolf v. American Tract Society

no stretching on exclusivity rule Not Liable; (NY 1900) [p213] a. Facts: The Ds were among 19 independent contractors working on the construction of a 23-story building in NY; P made a delivery of pipes outside when he was hit on the head with a brick. There was no evidence of where the brick came from or who dropped it, but P sued this two out of the 19. b. Procedure / disposition: dismissed / affirmed c. Issue: does RIL apply? d. Holding: No. There is no exclusivity Dissent: RIL is a necessity rule and designed for the protection of the public. It shouldn't be abrogated because the owner sees fit to contract with two or more persons (then it isn't fair to the victim) e. Rule: Any of the 19 could be responsible; the doctrine can't be so far-reaching as to apply here. It is better and more consistent with reasonable law that the injury should go without redress than the innocent person should be held responsible Note: does not apply the Ybarra rule. Ybarra was a case in a hospital, matter of public policy

City of Boca Raton v. Mattef

o Facts: Case where P was hired to paint sign but when the city bailed, P went up to paint sign anyways. Received permission from no one, but the superintendent made no comment when P showed up, just passed some of P's equipment to him. P fell o Analysis/reasoning: Holding for D bc P was still only a volunteer. He had no reached the status of an invitee bc he had not yet been invited by D to enter upon the undertaking. An invitee is normally considered to be one who enters upon the premises of another for the purposes connected with the business of the owner or occupant of the premises. P's voluntary undertaking was certainly not pursuant to the arrangement previously made and still in its formative stages. Cannot consider P to be a trespasser bc he at least had implied permission to do what he did. and the superintendent did not stop him, but instead assisted him to a small extent. P was at most a licensee. The licensee by permission occupies a status only slightly better than that of a trespasser insofar as the liability of the owner of the premises is concerned. Such a licensee takes the premises as he finds them and the duty of the owner of the premises is to refrain from wanton negligence or willful misconduct that would injure the licensee. But there must be knowledge by owner of any danger. Beyond that, no obligation.

Jacobsma v. Goldberg's Fashion Forum

o Facts: P injured in store when shoplifter pushed him o Analysis/reasoning: Holding for P bc P was a business invitee upon entering the store, so D owed him a duty to exercise ordinary care for his safety. But his injury occurred bc of his attempt to restrain the shoplifter, an activity outside the normal business invitation. The manager called "stop thief," and this was a general call for assistance. D also breached duty of care to P bc D had knowledge through his employees that the shoplifter had 3 days earlier tried to steal again, so D had the resp. to protect his invitees from other illegal acts by him.

Hypo: a person with mental difficulties is waving a chair around and is acting hysterical. When the nurse comes in to calm him down, the patient thinks she's trying to get him & he hits her w/chair.

o He would be found liable. Think of Polamatier, it was a voluntary act. In case of a mental defect, he doesn't have the capacity to act rationally or reasonably.

c. Werth v. Taylor

o Rule of Law: In emergencies, there is generally implied consent, but you can overcome implied consent if you're very clear about you're preferences/sensitivities (the higher the stakes, the clearer you have to be) o Facts: P's faith forbid receiving blood transfusions; filled out form to refuse transfusion at hospital. Had considerable bleeding after giving birth at D's hospital & placed under general anesthesia for surgery, but complications arose & doc concluded that w/o blood transfusion, P would die. Doc knew of P's faith, but ordered it anyway. P recovered fully, sued Ds for battery. Holding for Ds. o Analysis/reasoning: Has been held that consent may be implied where an emergency procedure is required and there is no opp. to obtain actual consent or where the patient seeks treatment or otherwise manifests a willingness to submit to a particular treatment. P was unconscious when critical decision regarding transfusion to avoid death was made. Prior refusal had not been made when her life was at risk. Clearly her refusals were therefore informed.

b. Charles v. Seigfried

o Rule of Law: The drinking of the intoxicant, not the furnishing of it, is the proximate cause of the intoxication and the resulting injury o Facts: D, an adult, hosted party and knowingly permitted P, 16 yrs old, to become intoxicated. Killed in car accident o Analysis/reasoning: Holding for D bc otherwise focus would shift to any and all adults who act as social hosts i.e. bride & groom liable to their guests; this would result in unlimited liability

The Squib principle (1773 case)

o We know it was an intervening cause, but is it a superseding cause?no bc intervening acts wont invalidate liability where that intervening cat in some sense reflects it or naturally or inevitably flows

Negligence per se

o party has violated some sort of rule, statutory or judge-made, and that violation establishes his negligence as a matter of law (not for jury to determine) Basic rule is that violation of a criminal statute creates negligence per se, so that issue doesn't go to the jury Difficulty arises when a criminal statute does not make clear if a party should be able to sue for damages for its violation. Some general exceptions, where per se will not be created by the violation, and negligence issue must go to jury: • 1. injury must be one that statute was designed to prevent (Tingle) • 2. Pl must be in class of people that statute was designed to protect (Selga) • 3. Reasonable deviations allowed when compliance with the statute would have been dangerous (Tedla) • 4. If you didn't know you needed to take action to comply with the statute (headlight burns out, e.g.), no liability • 5. Whether legislature intended to create per se rule. o RS§286: General Rule: A statute creates a standard of conduct w/r/t injuries the statute was designed to address, but not to other incidental injuries (though statute may be relevant evidence of standard of care)

b. Vosburg v. Putney

objective test of offensive contact; egg shell skull, single intent rule Liable; (WI 1891) [p1] Facts: Defendant (12) kicked the Plaintiff (14) in the shin in a schoolroom, after the teacher called the class to order. It was a light kick, but it aggravated a prior injury and caused the Plaintiff's leg to become lame. Procedure / disposition: The jury rendered a special verdict finding that the above did occur, but that the defendant did not intend to do the Plaintiff harm. They calculated damages at $2500. Trial court entered judgment for Plaintiff and Defendant appeals. Issue: Does the absence of D's intention to do harm to P mean that the P has no cause of action and, thus, the jury should have found for D, declaring him not liable? Holding: It doesn't matter if you couldn't foresee the effects. D is liable. Rule: two theoretical rules Egg shell skull plaintiff rule if you caused the harm, then you will be found liable for it, even if they are extreme or unforeseeable Single v. Double Intent - Single is the intent to make contact; dual is the intent to make contact and that it be harmful or offensive.

a. NY Central RR v. Grimstad

other reasonable conclusions for cause of death = Not Liable; (1920) [p308] Facts: Angell Grimstad was captain of a barge moored in Brooklyn; a barge bumped into them and his wife went out of the cabin; she eventually looked over the side and saw Angell, who couldn't swim, in the water about 10 feet away. She ran back to the cabin to grab a line but he was gone by the time she had returned. She sued the owner of the barge, claiming it negligently failed to provide lifesaving equipment on the vessel. Procedure / Disposition: Jury found for P (Grimstad) / reversed Issue: Was not providing the life saving equipment the cause of Grimstad's death? Holding: the only answer to that question would be conjecture and speculation. There is nothing to show that the decedent was not drowned because he couldn't swim or that his wife would've gotten life saving equip to him soon enough, or even if she had gotten it to him that it would've been enough to save him. Note: Court assumes that all this happened without the negligence of the D . Note: the court cannot point to the absence of the equipment as the "but-for" cause [bfc] of his death. Even with the life vest, there's many ways he still could have died. Exercising due care would not have foreclosed on the chance for death. Rule: No L when a jury could have reasonably concluded another reason for the death

7. Roth v. First Natl State Bank of NJ

outside scope ≠application of r/s Not Liable; (NJ 1979)[p440] a. Facts: Pl ran a check-cashing business and deposited checks and received large sums of money every morning. Pl was robbed one morning at gunpoint. The thief was tipped off by the boyfriend of one of the bank's tellers. Pl sues bank. b. Procedure / disposition: SJ to d / affirmed c. Issue: can r/s apply when employee was not acting at behest of employer? d. Holding: no. Teller hadn't been acting in the scope of her duties when she tipped the robber off; it was a mere matter of observation e. Rule: " the 'unordered and unauthorized acts' of the servant in this case are not such that it should be found as between the plaintiff and the defendant, 'expedient (as a matter of justice) to charge the master' with liability thereof" (Prosser, Law of Torts, at 460)

United Novelty Co. v. Daniels

precise chain of events to injury doesn't matter Liable; (MI 1949) [p362] Facts: P's decedent was instructed by his boss the D to use gasoline to clean its coin-operated machines; while cleaning, a rat, soaked from the gas, ran from beneath the machine to beneath the lighted gas heater where it caught on fire. The rat, on fire, then ran back underneath the machine where it caused the machine to explode, killing the decedent. Procedure / Disposition: Trial court gave SJ to P and D appealed on grounds of insufficient evidence. Issue: the whole rat situation wasn't foreseeable, so can there be liability for negligence? Holding: yes, In this case, it was foreseeable that having gas in a room with an open fire would result in an explosion. The fact that the rat came in and was crazy/unexpected doesn't matter. It was negligent just to send him down there with the gasoline Note: you can define negligence as having someone go into a closed room with gasoline or you could define it to include the presence of the pilot light. The more broadly you define negligence in this case, the more turf you have to cover to prove causation and in proving the negligence of a particular action Rule: if you have a negligent act, the precise story in terms of how the flames met the gas doesn't really matter. If this was the harm that we expected, the precise chain of events that led to the injury doesn't matter.

2. Katko v. Briney

proportionality std's of defense of property Liable; (IA 1971) [p85] a. Facts: D owned a farm with a house on it that they used mostly for storage. After a series of trespasses and break-ins, they put up no trespass signs and boarded up windows to no avail. Then D set up a spring gun, which was rigged to fire (at the leg) when the door was opened. P broke in, and had his leg nearly blown off. He pled guilty to larceny and afterwards sued D. D's defense is that the law permits use of a spring gun to prevent trespass/break-ins (he had no intent to injure anyone) b. Procedure / Disposition: verdict for P against D for $30,000 in damages / affirmed c. Issue: was D justified in the use of the spring gun to repel trespassers? d. Holding: no. The law places a higher value on human safety than mere property rights; there is no privilege to use any force calculated to cause death or serious bodily injury to repel the threat to land or chattels unless there is also a threat to the defendant's personal safety as to justify the self-defense. Dissent: Proposes a different rule— owners can use spring guns or other devices if the intention is to repel and not seriously injure and intruder. The landowner should have a privilege to repel (but not inflict seriously bodily injury) on intruders who pose a danger. Idea of castle doctrine, rights to private property. e. Rule: Proportionality: You can take steps to repel a trespasser, but only what would amount to reasonable force; if the trespasser only threatens to harm property, the possessor is not privileged to use deadly force. You should be using the minimum force necessary to repel trespassers and thieves A possessor of land may take some steps to repel a trespass. If he is present he may use force to do so, but only that amount which is reasonably necessary to effect the repulse. The possessor would not be privileged to use deadly force or arrange his premises so that such force will be inflicted by mechanical means. The only time conduct such as setting a spring gun or a like dangerous device is justified would be when the trespasser was committing a felony of violence or a felony punishable by death, where the trespasser was endangering human life by his act: the fact that the trespasser is acting in violation of the law doesn't change the rule. Public Policy: the criminal justice system is the remedy, not self-help; the privilege for committing harm on the intruder goes to the state, unless protecting your life or the life of another.

3. Ira S. Bushey & Sons v. United States

r/s applies to foreseeable risks by employees Liable; (1976)[p434] a. Facts: Coast Guard sailor arrived back at his ship drunk. The ship was undergoing repairs on a dry-dock owned by plaintiff. On way back up to ship, sailor turned three wheels on the dry-dock, which opened up valves and eventually caused the dry-dock to slide to one side, damaging both the ship and the dry-dock. US argued that the sailor's actions weren't w/in scope of employment [cited §228 (Agency)], so r/s shouldn't be applied b. Procedure / disposition: dry-dock owner was granted compensation / affirmed c. Issue: Does r/s apply? Was sailor within the scope of his employment when he committed these acts? d. Holding: yes. This accident is characteristic of the company's activities [foreseeability]. Note: Motive test (acting in the interest/service of the master) is inadequate here. They follow a new test: was the conduct reasonably foreseeable (i.e. the chance that the sailor could engage in negligent behavior)? Different from the reasonably foreseeable risks in the negligence standard Note: important question here is whether or not the actions were done in any way to serve the master e. Rule: The employer should be responsible for risks to the public, which arise 'out of and in the course of his employment of labor.' It was foreseeable that a drunken sailor might cause damage. Note: had the sailor set fire in a bar or killed someone he recognized to be his wife's lover, then r/s wouldn't apply. When the employee creates risk similar to those of the community in general, the employer is not responsible Public Policy - (1) you're company is responsible for the types of harms that your business generates. (2) whoever is in the better position to avoid these courts of accidents should be those liable when these accidents happen (3) putting liability on the party that can afford it [usually don't do that, need to treat parties alike]

7. McCarthy v. Olin Corp

r/u/t is n/a when there's no defect in intended use of product Not Liable; (1997) [p490] a. Facts: A man opened fire on a train using Black Talon bullets that were designed to be especially destructive and fatal; they were eventually taken off the market and reserved for law enforcement, but the shooter bought them before this; Ps are victims and relatives of decedents who sued claiming the company should be SL b/c the bullets were defectively designed. b. Procedure / Disposition: D got SJ / appeals affirmed c. Issue: to find a design defect, must ask if the bullets were unreasonably dangerous for their intended use?; were they? d. Holding: no. If a product's intended use is dangerous, the fact that it's dangerous is not a design defect (i.e. a knife is intended to cut, it wouldn't be defective just because it's sharp.) cannot apply risk/utility test here (and say that their danger outweighed the practicality of the bullet as a whole) because there has to be something wrong with the bullets first, but they functioned exactly according to design. The R/U/T is to see if a safer alternative is available, but the bullets were intended to kill, so safer doesn't make sense Dissent: there was a safer design talons w/extra-destructive element were removed from the market. If the design of a product is so manifestly unreasonable that they have low social utility and high danger, L should attach even absent proof of an alt design. Alternative is to have no product at all Note: When you are asked to say that a product is too dangerous to be made available to the public, you are engaging in something that legs do. Note: Pay attention to the alternative features in design defects, and in consumer expectation test it's less important to have alternatives in mind e. Rule: risk/utility analysis shouldn't be applied when the risk doesn't arise from something that's wrong with the design Public Policy: if P's had won, any person who'd ever been shot would be able to recover from bullet making companies

5. Wilson v. Stillwill

rarity of event ≠ neg when it does actually occur ≠ RIL Not Liable; (MI 1981) [p198] a. Facts: D was an orthopedic surgeon who operated on P's arm; afterward, the arm became infected and eventually paralyzed. P sued trying to rely on RIL b/c that hospitals rates of post-op infections was low, so following that, the fact that he got this infect must mean that someone was negligent b. Procedure / disposition: D got a directed verdict. Affirmed c. Issue: does RIL apply? d. Holding: no. The infection itself isn't negligence; you must show more. Although it is true that statistically infections did not ordinarily occur at the defendant hospital, this fact does not suggest that when an infection does occur it is the result of negligence e. Rule: just b/c an event is rare, when it does occur, that doesn't mean it was necessarily negligence-caused

b. Vaughn v. Menlove

reasonable person standard defined Liable; (1837) [p125] Facts: D built a haystack near the edge of his property; P complained; D built a chimney through the stack and the stack burst into flames, destroying both the D's property and P's cottages. Jury got a reasonable man instruction, and D was convicted. He appealed citing that he didn't have the highest order of intelligence (he wanted courts to adopt a subjective standard) Procedure / Disposition: found for P / affirmed Issue: were instructions to jury (that D was bound to use such reasonable caution ass a prudent person would have exercised under the circumstances) bad instructions? Holding: no, the instructions were correct. Liability for negligence shouldn't be co-extensive with the judgment of each individual, that would be too hard of a rule to apply Note: J. Holmes advocates for reasonable man standard with exceptions when a person has a defect that is out of their control (i.e. the person is blind). If you cannot meet the standard, you're going to create harms for your neighbors that they shouldn't have to put up with you and your troublesomeness, so you will be found liable. Low iq=no excuse Rule: Reasonable Person Standard: the standard is the caution a man of ordinary prudence would observe. The jury should not account for the judgment of each individual.

5. Fritts v. McKinne

recovery w/cont.neg if no direct link b/w action & injury Liable; (OK 1997) [p585] a. Facts: P's decedent was driving drunk & had an accident; while preparing for surgery, the D surgeon cut an artery causing the man to bleed to death. He tried to defend against a wrongful death action by saying the decedent was negligent in driving drunk b. Procedure / Disposition: the jury bought verdict for D / reversed c. Issue: Can a physician avoid liability for negligent treatment by claiming contributory negligence for patient's role in getting initial injuries? d. This is a comparative negligence jurisdiction, but that rule isn't applied. e. Holding: in this case, no. Directness has been severed, his actions are not tied to the injury that eventually caused his death, namely the severing of the artery (the negligence of the doctor) f. Rule: is the P's injury isn't the direct result of his negligent or law violating act, he can still recover. Public Policy: Too many ppl end up in the hospital because of their own negligence, going with what the Dr wants would create a HUGE pocket of immunity where docs would never be haled into court for negligence. We want to incentivize them to take better care of patients

a. In re Polemis

responsible for direct consequences regardless of foreseeability Liable; (1921) [p351] Facts: Polemis was owner of a Greek ship that he chartered to the Ds. While the Ds were using it, some gas leaked creating flammable vapors, a plank fell on the vapors causing an explosion that destroyed the ship. A panel of arbitrators found that the plank falling was due to the Ds negligence; the justice thinks the cause of the fire was the falling plank. They reject the D trying to distinguish foreseeablility of the type of damage (which they argue should be considered) from the extent of the damage (which all admit is pretty ballsy); both, they justices say, are immaterial. The anticipations of the negligent person don't matter, and the damages here are not too remote (i.e. no proximate cause problems). Court says there are two ways to view consequences: (1) the foreseeability of the consequences only material w/r/t to the issue of negligence; once negligence established it doesn't matter (2) the consequences matter regarding the issue of proximate causation. Both justices appear to believe (1) 2nd writer: once the act is negligent, the fact that its exact operation was not foreseen is immaterial. Rule: If a D is guilty of negligence, he is responsible for all the direct consequences of the negligent act(s) whether foreseeable or not. You get L here via the direct test. If there's a negligent act and the harm that follows is direct, then L

b. Wagon Mound #1

responsible for foreseeable consequences Not Liable; (1961) [p352] Facts: Ds were owners of SS Wagon Mound which spilled oil into the harbor as it was getting a fill up; they took no clean-up measures and left. The oil was carried to the Ps wharf where they suspended operation for 2 days...2 days after they started back up, a fire occurred when a piece of oily cotton rag floating in the water was ignited by a piece of molten metal that fell. Procedure / Disposition: The trial judge said that the Ds could not reasonably be expected to have known that it was capable of that. Issue: should court go with Polemis decision and say that foreseeability is immaterial? Holding: No. Court says that Polemis is bad law. A negligent actor shouldn't be responsible for non-foreseeable acts because it'd be unjust for ppl to be liable for all consequences, no matter how unforeseeable, just because they were direct. There should be some limit on the L for a negligent action. Rationale: gradual development of foreseeability doctrine in earlier cases Polemis court should've replaced "direct" with "reasonably foreseeable." An emphasis on "direct" goes against the idea of blameworthiness (contradicts the no L w/o fault idea). Rule: If a D is guilty of negligence, he is responsible for all the reasonably foreseeable consequences of his negligent act(s) You get L here via the foreseeability test. If there's a negligent act and the harm that follows is reasonably foreseeable, then L

3. Dawson v. Chrysler

risk/utility analysis Liable; (1980) [p482] a. Facts: The P police officer was injured when his car struck a metal pole at a certain angle and wrapped around it; he sued claiming the design was defective because it did not have a full continuous steel frame through the door panel that would've reduced injuries in his type of crash. D countered that (1) there was no duty to produce a crash-proof car (2) the design wasn't defective b/c it was the best for most type of crashes and (3) P's suggestions would've been expensive to implement. b. Procedure / Disposition: found for P / affirmed c. Issue: can the jury, under NJ law, find the patrol car defective? d. Holding: yes. The fact that Chrysler complied with national safety standards is not enough to relieve liability. After using the balancing test below, it was found that the car wasn't "reasonably fit, suitable and safe for its intended or reasonably foreseeable purposes." Court reject's Chevy's claim that P's proposed design isn't better for most accidents and that it'd cost more e. Rule: New Jersey Rule: Risk/Utility Analysis a product is defective if a reasonable person would conclude that the magnitude of the scientifically perceivable danger as it is proved to be at the time of trial outweighed the benefits of the way the product was so designed and marketed. Asks "is the proposed change worth it?" by assessing the value of the precautionary measure, looks at open and obvious defense (user's knowledge that the product is dangerous and precautions to take), and insurance issue (is this a good way to spread costs?) 7-factor balancing test: (1) usefulness and desirability of the products, its utility to the user/public as a whole (2) the safety aspects of the product and the likelihood it will cause injury (3) the availability of a substitute product which would meet the same need and not be as unsafe (4) the manufacturer's ability to eliminate the unsafe character of the product w/o impairing its usefulness/making it too expensive (5) the user's ability to avoid danger by the exercise of care (6) the user's anticipated awareness of the dangers inherent in the product and their avoidability (7) feasibility on the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance First question is whether a balancing of these factors prevents judgment as a matter of law. If not, send it to a jury

b. Laidlaw v. Sage

self-preservation ≠ volitional act, Not Liable; (NY, 1896) [p6] Facts: A man came into Sage's office, handed him a note informing him of dynamite in his bag and that he would drop the bag if he didn't get $1.2 million. Sage read, started stalling and moved behind his clerk, using the clerk as a shield. The man detonated the dynamite; he died, and the clerk, Laidlaw, was severely injured, although Sage had only minor injuries b/c Laidlaw really did shield him. Issue: does this count as battery? Holding: Sage is not at fault for his act, b/c it is equated to an involuntary act Rule: No Liability Without Fault First law of nature= self-preservation. The law presumes that an act or omission done or neglected under the influence of pressing danger was done or neglected involuntarily."

a. Welge v. Planters Lifesaver Co.(similar to res ipsa).

seller SL for selling defective product even w/o neg Liable; (1994) [p466] Facts: P's landlord bought him a jar of planter's peanuts; in order to get a rebate on Alka Seltzer, they had to cut the bar code off the jar; he used it twice before with no problem, but the jar later exploded when he removed it from its spot on the refrigerator as he tried to screw on the top. He brought a products L claim against the store K-Mart, the bottle maker and Planters. Ds claimed that the knife to remove the bar code caused it (this is unlikely, but even if it did, K-mart would still be L because it invited this misuse by having the promo and it would only reduce the other Ds L in a comparative negligence scheme). Experts for P suggest there's a high probability that one of the D's introduced the defect. Procedure / Disposition: Sl to Ds on grounds the P failed to exclude other possible causes / reversed Issue: was the defect in the glass introduced at such a time (before the P got it, during its manufacturing) that the P can recover for his injuries? Holding: you can't blame P since K-Mart was inviting P to take the barcode off. If you did something to product which you shouldn't have done that caused the accident, that can limit your recovery (i.e. it's a comparative liability defense, not a complete defense). But, in this case, court finds no misuse, this is what ppl frequently do, should be designed differently if an ordinary use causes the accident Given the facts of the pleadings, there is no evidence that the defect occurred after the sale. These claims don't require Ps to prove the defect arose before the point of sale. This Q is given to the jury, they can decide o Under a Ybarra scheme the Ds can exculpate themselves if they can prove it; the burden simply is on them to prove they didn't do it. The SL element in modern products L comes from the fact that a seller subject to that law is L for defects in his product even if those defects were introduced, w/o fault of his own for failing to discover them. Note: If they're inviting you to take a particular action, they can't later use that action as a Defense. Note: product misuse = an unforeseeable (manufacturer would not have known consumers would use it this way) use that causes the accident (D says that P's partner's cutting of the label off the jar might have made jar defective) o If you do something to the product that you should not have done, that could particularly defeat your claim (defense of comparative negligence) Rule: A seller who is subject to strict products L is responsible for the consequences of selling a defective product even if the defect was introduced w/o any fault on his part by his supplier or his supplier's supplier.

a. Keen v. Dominick's Finer Foods

seller of product held SL for defective products Liable; (IL 1977) [p477] Facts: P was pushing a cart in D's grocery store when the cart flipped and she was injured trying to stop it. She sued D on theory o SL products L claiming the cart was defective. Holding: dissent says P wins b/c D was a seller bc the cart is necessary, but the majority says no bc it is an incident of the sale of items for convenience. The store is merely a user as well

4. Rodi Yachts Inc. v. Nat'l Marine Inc.

std of care in contractual relationships unclear outcome; (1993) [p162] a. Facts: TDI owned a dock and Natl Marine sent a barge to the dock to be unloaded there. Natl Marine's crew had tied the barge to the dock and left for a few days; in the meantime the barge slipped away and hit another dock and boats causing more than $100,000 in damage. The owners sued Natl Marine who impleaded TDI, asserting that it was standard practice to check and make sure the ropes were holding up and that TDI was negligent for NOT telling Natl Marine that it didn't do this business custom. b. Procedure / Disposition: NM liable to 2/3 and TDI 1/3 liable / reversed and remanded c. Issue: what is the extent to which TDI and National Marine were negligent? d. Holding: It is unclear whether TDI and Natl Marine violated customary norms on the duty of care they owed each other (i.e. Natl Marine tying the ropes soundly to begin with, TDI checking to make sure they were still tight later) but this should be the focus on remand Note: If there is a set custom that sets ppl's expectations, then it wouldn't make sense to go w/a standard of care that was higher because the purpose of tort law is to protect people's reasonable expectations. e. Rule: as usual, compliance w/custom is no defense. Furthermore, in contractual relations, the market fixes the standard of care [SOC] by the preferences of customer and price. Law enforces these standards to protect customers' reasonable expectations. Economic Policy: In contractual relationships, it should look closer to the Hand formula because of the market pressure to do what makes sense. The market should drive expectations and so the party in power uses the optimal standard of care. [Stranger v. contractual relation distinction] Posner argues that industry norms set ppl's expectations. b/c the goal of the prudent person is to gauge how ppl act in comparison with reasonable expectations, custom and reasonable SOC are the same in cases where ppl enter into contractual relationships, such as carriers. Note: Custom most important in contractual relationships Where you have liability concerning two parties contracting with one another. Whether written or implied. There's reason to think that whatever the custom is, that's what the proper negligence std would be b/c market would drive it to the optional Posner says that in those situations we should look at custom. Compare it to the stranger situations. There's no reason why custom would get you to do the right thing because the person is paying you less when you don't tie the boat party.

f. Keffe v. Milwaukee & St Paul R. Co

std of care re: attractive nuisances Liable; (MN 1875) [p259] Facts: P was 7yrs old and caught his leg in the D's turntable. The turntable was unfenced and revolved easily. Procedure / disposition: The trial ct went for D, but appeals reversed Issue: is D liable for damages? Holding: yes. This could be considered an "attractive nuisance." The D knew that the turntable was easily revolved when left unfastened and thus very attractive; he also knew that many kids had the habit of going to play on it. Rule: Attractive nuisance (something that is dangerous but kids will want to play with it). If you know that you have an attractive nuisance, even if trespassers you have a duty to make it safe. So whereas as sign may be enough for adults, for kids you have to do more and lock it up or prevent it from moving

a. Haskins v. Grybko

std of care to trespassers you don't know are there Not Liable; (MA 1938) [p256] Facts: D went into his garden to hunt woodchucks that had been ravishing his squash, and accidentally shot P. Procedure / disposition: P won in trial court / reversed Issue: is D liable for negligence? Holding: no Rule: If there's a trespasser on the D's land, the latter was not liable for mere negligence. He was under an obligation to refrain from intentional injury and from willful, wanton and reckless conduct. So, if there are trespassers, there must be a showing of negligence plus.

b. Herrick v. Wixom

std of care to trespassers you know are there Liable; (MI 1899) [p256] Facts: P sneaked into D's circus, but sued when he was injured as a firecracker struck him in the face. Procedure / disposition: Jury went for circus after instructions that the P couldn't recover if he was a mere trespasser / S Ct reversed Issue: can P recover even though he was a trespasser? Holding: yes. P can recover Rule: A trespasser who suffers an injury is because of a dangerous condition of premises is without remedy. However, where a trespasser is discovered by the owner/occupant, the owner/occupant is liable for any injury resulting from negligence. Note: no duty of care to undiscovered trespassers. But if the person is known, you do owe him a duty of care. You don't need to look for trespassers; you have the privilege to act unreasonably when you don't know there's a trespasser. Exception: if it's gross or wanton negligence.

c. White v. University of Idaho

subjective test of offensive contact, Liable; (ID 1989) [p4] Facts: The piano lesson. A piano teacher walked up behind his student and drummed his fingers on her back to demonstrate the motions of a piano teacher. This contact caused thoracic outlet syndrome, requiring the removal of a rib. White said that she was surprised by the teacher's action and that she would not have permitted it. Issue: can teacher be found liable even though he did not intend to cause harm? Holding: although he did not intend to cause the harm, White is still liable for the damages. Rule: the trick here is to understand if the contact was offensive (it was clearly harmful). The majority of courts use an objective [reasonable person] test, but here they use a subjective test [look to the mindset of the person who was touched] The majority test is the objective standard

Substantial Certainty Garratt v. Dailey

substantial certainty of contact = intent; Liable, (WA 1955) [h.o.] Facts: minor pulls out the chair from woman. The contact here is P hitting the ground. Ct says the minor Procedure / disposition: The trial court found the boy not liable because he didn't have the intent to cause the contact (between the woman and the floor). The appellate court reversed. Issue: Is D liable despite fact that he didn't intend for P to hit ground (contact) & get hurt (damages)? Holding: Yes. D didn't intend for her to hit the ground, but there was a substantial certainty it would occur Rule: It is not necessary to know or intend that the contact will occur. As long as there is a substantial certainty of contact, the intent element is satisfied Note: infancy is not a defense against intentional tort of battery as it is in unintentional torts Hypo: If you approach a horse someone is riding with the intent to scare it you have substantial certainty that the horse will buck causing injury.

1. United States v. Carroll Towing Co.

the infamous hand formula Liable; (1947) [p140] Hand formula: If P x L > B, then liability exists P - probability of barge breaking away L - severity of expected injury B - burden (expense) of adequate precautions P x L - expected loss b. Facts: Conners Co. owned the Anna C. They chartered the ship to the PA RR in a deal that also included a bargee (worker) between the hours of 8 a.m. and 4 p.m. PA RR moved the ship to the end of the harbor where it was loaded with cargo of flour owned by the United States. Meanwhile, the Grace Line Company sent a tug it had chartered to another ship, the Carroll; to get to the Carroll the Grace Line ppl had to adjust the lines tying the Anna C. After they finished, they re-tied the Anna C. but did so improperly so that she broke away from the pier and bumped into a tanker which resulted in a hole beneath the water line. The bargee, who was supposed to be on board wasn't, so no one discovered Anna C.'s hole until so much water had come onboard that it couldn't be pumped out; the ship sank. Connors sues both Grace Line and Carroll. c. Procedure / Disposition: Grace Line's harbormaster & deckhand were found negligent in retying Anna C to pier / liability was split in thirds among Conners Co, Grace Line and Carroll Company d. Issue: was Conners Co contributorily negligent because its bargee wasn't aboard ship at the critical moment? If they were contributorily negligent, they will have to cover 1/3 of damages e. Holding: The Conners Co. is liable and can only recover two-thirds. We want parties (including plaintiffs) to take precautionary measures to minimize the harm that could occur. The fact that the boat was properly tied up is not always an excuse to a bargee's absence during working hours. It was reasonable to expect that due to the busy time and lines being untied and retied, that the work might not be done properly. It was a fair requirement that Conners have a bargee aboard during working hours. f. Rule: The owner's duty to provide against resulting injuries is based upon: (1) probability the boat will break away-P, (2) the gravity of the injury-L, (3) the burden of adequate precautions-B. This formula simulates how a reasonable person should act Liability depends on if B<LP

Manufacturing defects:

the product was designed in a certain way, the manufacturing of the product deviated from that design

g. Distinguishing London and Ploof:

transaction costs The law treats rights as more flexible and less absolute in situations where it is hard to enter into a voluntary transaction over them. London: When transaction costs are law, the low is more likely to protect/adhere to the traditional property rules more strongly. Case where the situation is imminent, but not immediate. Ploof: When transaction costs are high (it's difficult to make a deal) the law allows ppl to take each other's entitlements and pay damages later. Case of emergency, where no time to even seek and alternative (Ploof, girl with dog)

a. Keel v. Hainline

transferred intent = Liable (OK 1958) [p8] Facts: Kids playing in a classroom were throwing blackboard erasers and chalk back and forth across the room. One of the erasers hit a girl sitting in the middle of the room and shattered her glasses causing her to lose an eye. The defendant was convicted although he did not intend to cause her harm. He intended to engage in the wrongful act, so the intent was wrongful. The other students engaging in the "horseplay" were also convicted because they were aiding and encouraging the assault and battery. Procedure / disposition: Issue: are the boys L for battery if the contact was not intended to P? Holding: yes. Not both thrower and intended receiver of eraser are liable Note: Transferred Intent = If A attempts to commit a battery against B but mistakenly hits C instead, C can sue A for battery. A's intentions toward B are combined with the harmful contact with C to create a battery. Note: Although the defendant had a defense of consent against the original victim, there was still a prima facie case of battery against the original victim, which was sufficient for transferred intent. Note: Aiding and abetting: the actions of the group created the situation that caused the harm so the group should be punished. Rule: L for student who threw eraser: transferred intent (intended to make contact with third party resulted in accidental contact with injured party causing tortuous injury. L for intended receiver: theory of "aiding and abetting" the battery (in other words, both boys created the situation that cause the harm (GROUP LIABILITY) Motive is irrelevant 1.If A intended to create imminent apprehension to B, but instead A makes contact with C, then A is liable.

8. Forster v. Red Top Sedan Service

unclear outcome; (FL 1972)[p441] a. Facts: The P's were driving to the airport when one of D's drivers began trying to run them off the road. When the driver confronted them, he complained that they were driving too slow and delaying his schedule. b. Procedure / disposition: Trial ct gave directed verdict to D / appeals reversed & remanded c. Issue: could r/s apply? d. Holding: it's possible. Court held that evidence raised issues of fact, with respect to plaintiffs' contention that bus driver forced plaintiffs' vehicle off road and then assaulted and battered plaintiffs because he believed they had delayed him in performance of his duties, precluding directed verdict. A reasonable jury could find for P's. e. Rule: when on frolic and detour that is furthering the interests of the employer you're within the sope of employment and respondent superior apply

b. Peterson v. Lou B. Chevy

usually no SL for used products Not Liable; (IL 1975) [p477] Facts: P's decedent was killed when she had been run over by a car purchased from D's used car dealership; she sued on SL products L alleging defective brakes when the car left D's lot. Procedure / Disposition: no SL enforced, D wins. Issue: can Chevy be held liable? Holding: no SL here, we don't know if the defect happened before they sold it or after or if it occurred by the previous owner (a consumer/ not a seller) breaks the chain, used car dealer can't make sure consumers they buy cars from don't misuse car. Note: The background presumption is that the brakes weren't defective when they left the manufacturer, but got defective through use. Used car dealers are not deemed to be sellers in terms of SL Rule: usually no SL for used products

6. Wright v. Haffke

when one can use a firearm to protect property Not Liable; (NE 1972) [p89] a. Facts: P and a friend robbed D's grocery store; after they hit him and reached in the cash register, D pulled his gun and shot P in the back. P sued D who defended on the grounds that he was privileged to use a gun to protect his property (self defense); P argued it was unreasonable force. b. Procedure / Disposition: found for D / affirmed c. Issue: was use of the firearm excessive force? d. Holding: no. d owed P no duty of affirmative care, and had the right to resist the attempted robbery and to use whatever means lay within his power, necessary to that end, even to the extent of using a firearm to retain his property. e. Rule: ordinarily, a firearm may be used if reasonably necessary to prevent the commission of a felony or to arrest a felon after a felony has been committed. For minor thefts, the use of a firearm would not be justified, but for more serious felonies such as robberies, the use may be justified. Participants here committed an assault while attempting to commit a robbery

d. Thompson v. County of Alameda

when threat is general/not targeted Not Liable; (CA 1980) [p246] Facts: P and her son lived a few doors down from James F, a juvenile with dangerous propensities regarding kids; the county knew that James had indicated he would kill a kid in the neighborhood. The county didn't warn anyone, and James murdered the P's son w/in 24 hours of his release. Procedure / disposition: dismissed / affirmed Issue: did county have a duty to warn the neighbors? Holding: no. There were no precise targets in this case. Waning would have been general and probable not effective. Also, such a practice might jeopardize the rehabilitative efforts of offenders. Rule: when potential victims are specifically known and designated individuals, warnings are required that make those individuals aware of the danger tow which they are likely to be exposed. When warnings will be broad and only general in nature, they do little to stimulate increased safety measures, and thus there is no duty to warn [Information cost argument] if the choice is between more money and safety, we should go with safety because it is more important (think Katko); maybe the market is messing things up and people don't really know what they want o This is a weak argument because the person on the other side of the transaction (the building owner) DOES know the rate of the crimes

Williams v. Hays-

Δ was part owner of a boat, and undertook a voyage as charterer/lessee. The boat was struck by a storm, and Δ commanded ship for more than two days w/o sleep. Finally, he handed control to first mate, took quinine, and fell asleep. When the ship appeared broken, Δ was aroused. He refused to admit it was broken, refused the help of two tugs, and the ship was wrecked. His partners' insurance company sued him. Ct: General rule is that insanity is not an excuse to liability. Reasons historically postulated for this principle: o Of two people who must bear loss, should be the one whose actions caused loss. I.e. if we allowed the guilty to escape liability based on their insanity, that would force the innocent to bear. • P: But that rationale presumes that the insane person is guilty. o If we refuse to allow exception for the insane, will force relatives to take care of them. • P: This doesn't accord with reality. o Allowing insanity defense might create problems of fraud ( people would fake insanity). • P: You'll see this concern as pervasive in the law. Reflects suspicion that these illnesses are difficult to detect. If Δ caused destruction by willful or negligent conduct, law holds him responsible If Δ became insane solely b/c of efforts to save vessel, we would have a different case than this one

PRIVATE NECESSITY

• A person is privileged to enter another's land or interfere with their chattels if the entry or interference is - or reasonably appears to be - necessary to protect any person from death or serious bodily harm, or to protect any land or chattels from destruction or injury. • Landowner is not allowed to throw a trespasser out in a case of necessity, but trespasser is required to pay for damage caused by trespass