Torts

Intentional Infliction of Emotional Distress

"One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress, and bodily harm to the other results from it, for such bodily harm" -To recover for IIED for watching a third party get injured, P must show the same elements, including, intent by D to cause P the extreme mental suffering. If P is a close relative of the third party and is physically present to view the harm of the third party, however, we can presume that the intent element is satisfied.

Emotional Harm/ Negligent Infliction of Emotional Distress

-Fright/ Shock from risks of physical harm, touching not required -Zone of danger: must be in zone of physical impact -Loss of consortium: you're in close relationship with injured person and injury causes damages to relational interest with that person -Doesn't need to be extreme and outrageous unlike IIED

SOC for physically/ mentally disabled

- Physically disabled people held to same SOC as those with same disability -Mentally disabled people held to regular SOC -To allocate the loss the person who caused it, incentive to people responsible for those with disabilities, prevent people from faking a disability, Avoids the administrative problem of identifying and assessing the significance of liability, forces them to pay if they are going to live in the world, the deinstitutionalize them, -If involuntarily hospitalized, does not owe a duty of care to his/ her professional caretaker (assumed risk) -

Defenses to Intentional Torts

-Discipline -Arrest -Repossession/ Recapture of Chattels -Necessity -Consent -Defense of Other -Defense of Property -Self Defense

DOC for guest passenger and host drivers

-Driver owes a duty of care to her passengers because it is foreseeable that they may be injured if through inattention or if the driver involves the car she is operating in a collision -children operating car held to same standard -when passenger's actions not foreseeable, there is no negligence to the driver -when actions of a passenger that interfere with the driver's safe operation is foreseeable the failure to prevent such conduct is negligence. Jury to consider 1. duty 2. breach of duty 3. foreseeability of conduct that caused harm 4. proximate cause of negligence

Vicarious liability/ Entrustment of a Vehicle

-Negligent entrustment: defendant may be liable for his own negligent entrustment of the car to one who is incompetent to drive, requires proof that the D knew or should have known of the incompetence and that injury resulted from the incompetence -Owner in the car with right of control: when the D permits another to drive but he remains in the car, as owner he retains some degree of legal control and maybe liable for failing to exercise that control -Ordinary bailment: if the owner, defendant just lends the car to a competent driver there is no liability -Owner consent statutes: statutes of several states make the individual owner liable for the negligence of the driver even in the case of pure bailment, provided the owner consented to the use of the car -family purposes doctrine: if the car is maintained for general family use, the legal owner would be liable for its negligent use by a member of the family

Common Law Wrongful Death

-Punitive damages only available under Survivor Act; compensatory damages first, then punitive - Step Children may not recover damages

Vicarious liability/ MI Civil Liability statute

-Vehicle is taken without the owners knowledge or consent, there is no liability to the owner -Lessee rents a vehicle for more than 30 days, lessor is not liable for damages and lessee must provide insurance to cover vehicle -Lessee rents car for less than 30 days, lessor has limited liability, offer extra coverage

Conversion of Chattels (Personal Property

1- personal property (chattel) 2- The plaintiff is in possession of the chattel or entitled to to immediate possession. 3- Intent to exercise dominion over the chattel 4- Dominion = serious interference 5- Causation of the serious interference to the chattel Conversion of chattel is an 1) intentional act of exercising substantial dominion over the chattel which 2) causing 3) interference of another's right to exclusive control of the chattel Damages: fair market value at the time and place of conversion. P is not obligated to take back property once it is converted. Replevin -Substantial dominion -extent and duration of control, intent to assert a right over the property, good faith, harm done, expense or inconvenience caused. Serial conversions: stolen property Bona fide purchasers: sincerely,, without the intention to deceive, buying stolen property, still liable

Tort Liability for Defective Products

1. ELEMENTS of Product Liability A. Manufacturing defect cases - Under strict liability the jury need not infer from circumstantial evidence that the defendant was negligent in order to impose liability. - It is sufficient that the evidence establishes that the manufacturer placed a dangerously defective product on the market, knowing that it is to be used without inspection. More probable than not that the product was defective when it left the defendant's control - Food Products: 1. Food Products and Consumer Expectations If the injury - producing substance is natural to the preparation of the food served , it can be said that it was reasonably expected by its very nature and the food cannot be determined unfit or defective 2. A harm-causing ingredient in a food product is defective if a reasonable consumer would not expect the food product to contain that ingredient. - Consumer Expectation Test: JEEP ROLLOVER - A product is found to be unreasonably dangerous if it is dangerous to an extent beyond the expectations of an ordinary consumer when used in an intended or reasonably foreseeable manner. - Risk Utility Balancing Test: balance benefit of the design against the risk of product. Makes it more difficult for P...P must allege that there are reasonably available, types of alternative designs which could be used. B. Design Defects - Product Design is in Defective Condition to the user or consumer if: 1. it is more dangerous than an ordinary consumer would expect when used in an intended or reasonably foreseeable manner, or 2. if the benefits of the challenged design do not outweigh the risk inherent in such design C. Warning or information defect cases - Duty to Provide Information 1. A manufacturer's failure to provide appropriate information about a product may make an otherwise safe product dangerous and defective. 2. A product become defective when the product's foreseeable risks of harm could have been reduced or avoided by the provision of a reasonable warning and the omission of such a warning renders the product "not reasonably safe" i. Necessary information to make a product reasonably safe may include directions for use, warning or some combination. ii. Warnings may be needed either to alert users to the risks that are not obvious or to inform users to safer alternatives D. Don't have to give warnings if... 1. Open and Obvious 2. Unforeseeable misuse E. Focusing on Post-Sale Warnings - If there is a duty to warn of a known danger, it exists at the point of sale, we believe a like duty to give prompt warning exists when a latent defect which makes the product hazardous to life becomes known to the manufacturer 1. IN MICHIGAN, the only post-manufacture duty imposed on a manufacturer has been a duty to warn when the defect existed at the point of manufacturer, but for some reason was undiscoverable by both the manufacturer and the consumer at the time.

Employer DOC/ Worker's Compensation

1. Employer MUST provide a safe place to work -Reasonably safe having regard for the character of work and reasonably safe tools and appliances for doing the work the measure of duty is to exercise ordinary or reasonable care to do so. the standard of car exercised by prudent employers in similar circumstances 2. Fault of employee not taken into consideration 3. Arising out of the course of employment (going to or from work while on the premises where the employees' work is to e performed and within a reasonable time before and after his or her working hours is presumed to be in the course of his or her employment) 4. employee unable t o perform all jobs paying minimum wage Two types of benefits -Medical and wage loss -Amount capped in eery state, michigan called at 90% of the state median wage, 805$/ week max. -Who is not cover by workers comp? -agricultural employees -domestic employees -casual employees -interstate railroad workers -federal employers liability act -Expecting p to take care for himself; there was no evidence that the employer was in a superior position to protect p by knowing some danger of harm beyond those normally presented in the situation obviousness; It is not unreasonable to fail to take action to lessen a risk to someone that i so obvious that the other person can be relied upon to avoid it on his own -Expecting care by third persons; a reasonable person may not breach a duty when the person reasonably relies on another to protect the plaintiff. E.g. don't have to warn a mother of what is unsafe for her child Indemnifiation -where one party is responsible to pay in full, discharging a common liability, school pays if teacher gets sued

Battery

1. Intent 2. Harmful or offensive contact 3. To Plaintiff's person 4. Causation D acted with intent to cause a harmful or offensive bodily contact to P's person AND That act caused a harmful or offensive bodily contact to P's person EXAMPLES/ EXCEPTIONS: -Alzheimer's patient: Use of dual intent requirement, intent to cause bodily contact and intent for contact to be harmful or offensive -Offensive: damaging reasonable sense of personal dignity (doctor pulls nurse down to surgery site, religious beliefs prohibit woman from being seen nude by males) -Contact doesn't have to be touching: blowing smoke in the fact -Lack of Intent to cause battery does not absolve you if you knew with substantial certainty the result will occur: boy pulls chair from under woman and she falls -Insanity does not remove liability: (Exception: Battery resulting in wrongful death, found not guilty, reason of insanity)

Governmental Immunity Exceptions

1. Specific government activities (combatant activities of the military, delivery of mail, etc) 2. Torts of the dignitary or economic kind, including those arising out of assault, battery, false imprisonment, malicious prosecution, abuse of process, label, slander, misrepresentation, and interference with contract -Limitations on assault and battery immunity and the like a. If an off duty employee commits a battery, the government might be liable for fostering the risk b. rationale does not seem to apply to on duty employees c. may be liable for assault, battery, and false imprisonment if committed by investigative or law enforcement officers 3. Judicially established exceptions: the court has determined to permit liability of government only for negligent and other wrongful acts -strict liability is not applied even where it would be for an individual 4. The Feres Exception: all claims are barred if those injuries received are incident to service-military -feres does bar a recovery by a spouse of child of a person in the armed forces of they are directed injured e.g. medical malpractice in military hospital. -The practical effect is that the Feres doctrine effectively bars service members from collecting damages from the United States Government for personal injuries experienced in the performance of their duties. 5. The discretionary or basic policy immunity: FTCA does not waive immunity for claims based upon the governments exercise of performance or the failure to exercise or perform a discretionary function or duty 6. State and federal judicial officers: Absolute immunity: legislative and judicial officers are traditionally given absolute immunity under the common law, so long as they are acting in their judicial or legislative capacity -The public duty doctrine: public entities are officers are not liable to individuals for failure to carry out a duty even a statutory duty, owed to the public at large rather than to a particular individual or group 7. May sue a federal government employee if they are acting within the scope of employment

Limitations of Actions

1. Statutes of limitations: to bar state claims; permit business and personal planning. -Requires an action be brought within the statutory period after the claim accrues 1. Negligence that cause no harm is not actionable until injury occurs 2. The cause of action only accrues when the injury results 3. The statute of limitations would begin to run when the injury occurs -Time Factor 1. MICH. 2 year SoL or within 6 months after P discovers or should have discovered existence of the claim. However, claim must not be commenced later than 6 years after date or act of commission that caused harm 2. Common cases: Medical Malpractice, occupational disease, product liability 3. US supreme court, SoL begins hen P is aware of injury and of possible cause of injury -Latent/ potential harm: exceptions for toxic torts, minors, and incompetents -Tolling for disabilities: Minors must bring suit prior to age 18

Contract and Duty, Promises

1. Unenforceable: under CL, one who undertakes to do an act for another without reward is not answerable for omitting to do the act and is only responsible when he attempts to do it and does it amiss -nonfeasance: failed to do anything at all -misfeasance: did something, but it didn't work 2. Enforceable: A lessor can be held liable for personal injuries in a tort actions brought by the tenant upon a breach by the lessor of an agreement to make repairs 3. Promises to 3rd persons: common law, only parties in privy and parties who are intended beneficiaries under the K may sue under the K -Exception to nonfeasance rule: one who undertakes to render services to another must recognize protection of 3rd persons from physical harm resulting from failure to exercise reasonable care to perform undertaking if a. the failure to exercise reasonable care increases the risk of such harm b. has undertaken to perform a duty owed by the other to the third person or c. the harm is suffered because of reliance of the other or the third person upon the undertaking

Vicarious Liability/ Independent sub-contractors

2. Independent sub-contractors Several factors to be considered in determining whether an employment relationship v. an independent contractor relationship exists a. the selection and engagement of the servant b. the payment of wages c. the power to discharge d. the power to control the servants conduct e. whether the work is party of the regular business of the employer -General rule: not generally vicariously liable for independent contractors unless: a. peculiar risk -Non-delegable duty

Tort

A civil wrong recognized by law as grounds for a lawsuit -It is usually a civil wrong other than a breach of contract -Meant for corrective justice -Meant for social utility

Warranty

A. Express Warranty - a kind of contract - Contract liability is usually strict liability; , proving breach of contract does not require proving that the breaching party is at fault - Manufacturers rarely make express guarantees about their products safety directly to purchasing consumers B. Implied Warranty - it should meet some kind of normal expectation as to quality and safety - UCC § 2-314 - recognizes an implied warranty that goods are "fit for the ordinary purposes for which such goods are used" and that they are as good as the seller claims them to be 1. Liability is strict but Privity is required. 2. Warranty remains a viable theory today in many products cases. However, to a very large extent the warranty theory had been displaced or supplemented by strict liability

Protecting from third parties

Absent a special relationship a private person has no duty to protect another from criminal attacks by a third person 1. Business may have a duty to protect patrons from dangerous third parties based on totality of circumstances. additional factors taken into account -nature, condition, and location of the land -any other relevant factual circumstances bearing on foreseeability 2. Dram Shop relationship with dangerous persons: vendor not liable for the person who consumed the alcohol. Justification that the consumer was the proximate cause -Liquor vendor has duty to exercise reasonable care not to sell nor allow on the premises consumption 3. MI Dram Shop Statute: Does not limit liability to retailers for on the premises consumption -Imposes liability upon sellers of alcohol to minor or intoxicated person if the serving of alcohol proximately causes an accident -Reduces the SoL and adds a notice requirement schools/ teachers -When the school officials know or should have known about abuse or harassment, and they didn't do anything it is a violation of their duty of care. -teches immunize from liability for harm caused by an act or omission of the teacher on behalf of the school. -schools liable for student on student violence -schools liable for torts against students by third parties. -courts have refused to impose duty to protect with respect to sex alcohol drugs and over study. -landllord does not owe a duty to tenant -if landlord has control over danger from a tenant, he has a duty of care -duty to protect against -parents have no duty unless they should have known some behavior or harm -employers may owe a duty of reasonable care to protect others from harm by employees when employer facilitates the employee's causing harm. or negligent hiring. or negligent supervision -therapist has duty to WARN

Immunity statute- Good samaritan

Anybody, not a doctor, who in good faith renders emergency care at the scene, shall not be liable for any civil damages as a result of any acts or omissions by such person in rendering emergency care

Assessing Responsibility When More Than 1 Person Negligent

Apportionment among defendants. Joint and several liability: means that the p can enforce her tort claim against either tortfeasor, can obtain a judgment against both but cannot collect more than her full damages. -ContributionL one party can obtain contribution to make payment proportional to its fault -More consistent with tort goals so p receives all damages How courts handle it -joint and several if d's percentage exceeds certain threshold, like 50%, if d assigned a lesser percentage, several is ok -joint and several for only economic harms but non economic is several -if two people are liable for something and you can not determine exactly what harm each caused, all of the wrongdoers will be held jointly and severally liable. -alternative causation: both tortfeasors are negligence but only one of them caused the p harm and it is impossible to determine which one did. Insolvent or immune tortfeasors: if one party did not have the assets or funds with which to pay contribution or if she was immune to liability for torts committed, the other party would be required to pick up their share and pay the entire 100% -Several liability and comparative fault apportionment among tortfeasors. -no tortfeasor is liable for more than his proportionate share, contribution is not needed, if one party could not pay, the plaintiff would bear her own costs.

Vicarious Liability/ Worker's Compensation

Arising out of and in the course of employment -MI Worker's comp -Premises rule: you are int he course of your employment only when you are on the premises of the job, driving to and from work is not in the course of employment

Assumption of Risk Analysis

Assumption of Risk Analysis 1. Had knowledge of the risk of danger 2. Appreciated that risk 3. Voluntarily exposed his or herself to that risk If a person of normal intelligence in the same position as the P would have clearly comprehended the danger -D breach no duty to the P

Duty to kids

Attractive nuisance doctrine: turntable law: attractive lure that invite child on the land. Applies to kids in elementary school or young -Dangerous instrumentality doctrine: the owner or occupier of a premises owes a higher duty of care to a child trespasser when such owner or occupier actively and negligently operates hazardous machinery or other apparatus, the dangerousness of which is not readily apparent to children 02. Tender years: Mainly to children of grade school age or younger and only rarely to teenagers A possessor of land is liable for harm to a child trespasser caused by an artificial condition if the possessor • knows or has reason to know that children are likely to trespass near the condition, • the possessor knows or has reason to know that the condition causes an unreasonable risk of serious injury to child trespassers, • the children because of their youth do not discover the condition or recognize the risk involved, • the utility of the condition to the possessor and the cost of eliminating the danger are slight compared to the risk to child trespassers, and • the possessor fails to exercise reasonable care in eliminating the danger or in protecting the child trespassers.

Actual Cause of Damage

Cause in fact: P must prove not only she suffered harm, but D caused harm 1. But for causation: Bur for actions of D harm wouldn't have occurred 2. Proof: shift burden of proof to Ds to prove that each of their acts did not cause harm; loss of chance of survival...look to value of lost life -Lost chance, can only recover for lost chance -some courts say rule should preclude recovery when patient dies when p had a 50-50 chance of living anyway, or p cannot recover for loss of an opportunity to survive unless the opportunity was greater than 50% -( e.g. 25% of damages because 25% loss of survival) -relaxed causation test, burden of proof is relaxed, full damages if proved by preponderance. -substantial factor test: p proves that d's alleged act or commission was a substantial factor in inducing the p's injury even if the injury could have occurred anyway.

DOC for carriers of passengers

Bound to protect its passengers as far as human care and foresight will go and is liable for slight negligence. The high degree of care must be exercised in FORESEEING as well as GUARDING against danger. -Majority: most states have eliminated the higher standard of care in favor of the general standard based upon reasonable care in all circumstances

Contractual Assumed Risk

Can be discharged if there is an overriding public interest or special legal relationship

MI Wrongful Death Statute

Cause of action when someone commits ANY tort and causes of death -Must prove that there was a tortuous action by D -MI has combined wrongful death and survivor statutes -Benefits defendants of the deceased and the estate -Self children may recover -Provides for loss of consortium -CT allocates for hospital bills/ burial expenses and then $ to those who suffered damage -MI specifically says exemplary damages = punitive damages, awarded according to case law or are stated in statute

Wrongful Death

Causes of action survives decedent -does not involve a claim by the estate -recovery goes to survivors -trustee brings action on behalf of beneficiaries -to replace pecuniary losses that would be suffered by other because of the decedent's death -loss of support to dependents -loss to the estate punitive damages, damages for the mental anguish or fief of survivors, loss of sorties, loss of society or companionship, loss of services, loss of guidance and care Survival statutes: claim is a debt owed to the estate just as any other claims and recovery is paid to the estate, the estate pays the debts of the deceased person and the costs of administering the estate and then to the heirs. tort victim might bring a suit to redress a tort then die before the suit goes to judgment, claim can be revived and continued in the name of the personal rep. -provide for survival of victim's claim after the d's death -medical expenses, wage lost before death, and pain and suffering resulting from injury Defenses: -contributory negligence or assumption of risk -damages cap -statute of limitations -beneficials contributory negligence or assumption of risk

Charitable immunity/ Family immunity

Charities were not liable in tort, except 1. Not exempt from liability as to non-trust funds 2. Administrative negligence/ of its servants 3. Charties cannot claim immunity from those that paid for their services 4. Cannot claim immunity as to its collateral and commercial activities 5. Intentional or reckless torts not protected Family/ parental immunity -

Sports Cases

Comparative Fault Assumption of Risk You consent to negligent injury during sports participation

Implied Assumption of the Risk

Comparative fault or contractual limitation on liability 1. P consented to the D's conduct by valid contract express or implied 2. P was guilty of unreasonable assumption of risk which seemed equal to contributory negligence

Repossession/ Recapture of Chattels

Elements. 1. Timely demand of Chattel required 2. Recovery only from wrongdoer 3. No mistake allowed, shopkeeper's exception 4. Force cannot be used unless used in hot pursuit of a chattel and then it must be reasonable force rather than deadly force Property owner has right to use reasonable force to regain possession. Owner must act without delay, hot pursuit/ fresh pursuit

Consent/ Arrest/ Discipline

Consent Elements 1. Valid consent absent fraud 2. Scope of consent 3. Consented act must not be criminal If P consents to an intentional interference of his person or property. D is not privileged to go beyond the scope of consent unless it is a surgical emergency -subjective willingness, based on appearance reasonably understood as consent by the observer. Power relationships: consent is not privileged -inherently unequal relationship -doctor patient -employers -minors have INCAPACITY to consent 0Experience and intelligence to see if minor could have capacity -did not understand nature/ character of act Arrest: -Private person can arrest another for a misdemeanor, the privilege is VERY limited -The person arrested must have committed a misdemeanor amounting to a breach of peace in the presence of the person making the arrest -In shoplfiting, there is no breach of peace and common privilege to arrest -can use reasonable force but must be POSTIVE, mistakes are not allowed -Can only be detained on the premises for the time necessary for a reasonable investigation of facts -shopkeepers privilege NOT available except in arizona but must have reasonable cause and call the police Discipline: -Parents may use reasonable force as they reasonably believe necessary -Teachers and bus drivers have the same privileges except to a lesser extent -Reasonableness and degree of punishment

Vicarious liability/ Joint Enterprise

Courts have imposed liability of a joint enterprise when a person outside the enterprise is injured -this is aid to exist where there is a. an agreement, express or implied b. there is a common purpose c. there is a community of interest d. there is equal right of control -when members of the enterprise itself are injured the rule is different, and there is not imputation of negligence among the enterprises themselves

Assessing Risks and Costs/ Evidence

D must spend $ to avoid probable harm -Risk utility equation: to determine existence of liability Burden of care has to be less than the probability of the harm times the damage in dollar amount Applied to property cases, not personal injury -Reasonable care, whether the conduct is negligent depends on the foreseeable likelihood that conduct will result in harm, the foreseeable severity of any harm that may ensure and the burden of precautions to eliminate or reduce the risk of harm. Forgotten gopher hole: memory of the reasonable person is required, if gopher burrows a hole by your sidewalk and you forget to fix it, that is considered nelgigent. Cost of memory: blowing whistle at a crossing of train may be costless for train making the failure to do it NEGLIGENT. Only needs to consider the risk that would be taken into account by a reasonable person. Goals -proves deterrence in the right amount, maximizes community resources making sure that the most efficient outcome is the one being used. How courts handle it -joint and several if d's percentage exceeds certain threshold, like 50%, if d assigned a lesser percentage, several is ok -joint and several for only economic harms but non economic is several -if two people are liable for something and you can not determine exactly what harm each caused, all of the wrongdoers will be held jointly and severally liable. -alternative causation: both tortfeasors are negligence but only one of them caused the p harm and it is impossible to determine which one did. p must prove each element of the case by a preponderance of the evidence, more likely than not Circumstantial evidence, when one fact or a set of facts from which the EXISTENCE OF THE FACT TO BE DETERMINED can be REASONABLY INFERRED. -Entitled to as much weight as direct evidence and is admissible If reasonable people may draw different conclusions, if conclusion is dependent on weight the fact finder vies to testimony, if evidence is conflicting on material point then judge can not substitute his or her conclusion for that of the jury. Non expert opinon: -witness is not permitted to give opinions on ultimate issues reserved for the jury they an only state facts Expert opinions -Allowed to give expert opinion or conclusions WITHIN THEIR FIELD OF EXPERTISE, can give testimony if the information is within juror's knowledge -experts differ in their opinion, witnesses may give impressive witness more weight Theories of liability 1. crated and failed to take reasonable action to abate the hazard 0d did not create the condition but discovered or should have discovered a condition created by others (constructive notice) and failed to take reasonable steps to prevent injury -d's mode or method of business operations made it foreseeable that other would crate a dangerous condition and d failed to take reasonable measure to discover and remove. ^THINK SLIP AND FALL. -Cannot use procedures in manual as evidence in deciding if a business was negligent, must use standard of ordinary care, manual content may be in there for another reason. -General rule: a person's departure from the custom of the community or of others in like circumstances in a way that increase the risk is evidence of that person's negligence but not require a finding of evidence -d who compiled with all the safety requirements of a state might still be negligent if he failed to follow a custom (custom proves that harm was foreseeable, d knew or should have known risk, risk was unreasonable_) Standard of industry: d to be held to the standard practice of the industry at the time -Custom compliance can be used as evidence of no negligence but does not prevent a finding of negligence. -statute a floor of due care, but may require greater care if the d should have know other risks.

Breach of Duty/ Negligence Per se

D owes the P a duty, which is usually the duty of reasonable care, the question for the jury is if the defendant breached that duty by failing to exercise reasonable precautions to prevent harm to others. -negligent is overt conducts that creates unreasonable risks that a reasonable person would avoid. -The risk of harm is unreasonable when a reasonable and prudent person would foresee that harm might result and would avoid conduct that creates the risk. 1. Standard of care: a. Reasonable person standard b. Children are held to a different standard c. Custom may be persuasive 2. Duty and Breach will be assumed if a. Nelgligence per se b. Res Ipsa Loquitur -Risk of harm is unreasonable when a reasonably prudent person would foresee that harm might result and would avoid conduct that creates a risk -Conduct may include a failure to act when action is required (omission) -A mere state of mind is not conduct: negligence entails overt behavior that creates risks a reasonable person would avoid NEGLIGENCE PER SE -The court finds that a reasonable person could not possibly find the other way so they give this verdict. -Types of statutes covered by negligence per se: -state provides for civil liability, creating a private right of action, speed limit -violation of the statute actually determines the actor's negligence -Breaking the law, a reasonable person would not break the law/ breaking the law would imply negligence? -Some states make violation of such a statute evidence of negligence rather than as a standard of care -usually applied to city ordinances/ administrative regulations/ state and federal statutes ELEMENTS: -The statute or regulation must clearly define the required standard of conduct -The statute or regulation must have been intended to prevent the type of harm the defendant's act or omission caused -Plaintiff must be a member of the class of persons the statute or regulation was designed to protect. -The violation must have been the proximate cause of the injury MORE INFO: -Court decides if they want to use the standard or not, sometimes it will end up hurting the plaintiffs, this is why some courts use it as evidence instead -Statutes that are intended to protect the public at large do not create a duty and cannot be given per se statute, must also have identifiable standard of conduct. Defenses for negligence per se: -violation reasonable because of PHYSICAL incapacity -doesn't know/ shouldn't know of the occasion for compliance -he is unable after reasonable diligence or care to comply -he is confronted by an emergency not due to his own misconduct -compliance would involve a greater risk of harm to the actor or to others. -Do not apply negligence per se to children , but can be introduced as evidence of a child's negligence

Restatement 2d 402, Defective products?

D-Defect: product must have been in a defective condition unreasonably dangerous to the consumer or his property C-Control: When it left Ds control C-Changes: Product must not undergo significant changes before it gets to the user B-Business: Seller must be in the business of selling the product C-Causation: Damage must result from the defect P-No privity required: duty extends to anyone foreseeably endangered by the product -Only applies to professional sellers; manufacturers; retailers; etc -Retailer may sue manufacturer also -Allows seller to be sued, makes it easier for the consumer to recover -Merchant sells product in a defective condition which is dangerous to the user OR his property is liable for physical -Consumer may bring a suit even if the seller used reasonable car or no privity -Misrepresentation- a manufacturer will be liable for injuries resulting from conditions of the product that were misrepresented even without privity

Defenses to Negligence

Defendant has the burden of proving affirmative defenses. 1. Contributory negligence 2. Comparative fault 3. Limitations of action

Open and Obvious Danger Rule

Defense for landowner. land possessors cannot be held liable to invitees who are injured by open and obvious dangers -all or nothing assumption of risk Negates existence of duty of care. If you can see the danger, know it is there, you must avoid the danger.

Defense of Others/ Third Persons

Elements Use reasonable force to defend against imminent harmful or offensive bodily contact or confinement to another person as long as defendant's belief was that someone was being attacked and needed help 1. Same rules as self defense 2. Restatement says that as long as d believed someone was being attacked a mistake is OK, but some courts have ruled that the mistake destroys the privilege and makes d liable for battery

Strict liability/ Abnormal danger

Elements 1. Involves high risk of serious harm 2. No way to perform activity safely even if care is taken 3. Not a matter of common usage The factors determining abnormal danger 1. existence of a high degree of harm 2. inability to eliminate the risk by using reasonable care 3. extent which the activity is not a matter of common usage 4. activity's inappropriateness to the place where it is carried out 5. extent which the activity's value to the community is outweighed by its dangerous attributes

Trespass to Chattels (Personal property)

Elements. 1. Intent 2. Interference with plaintiff's right of possession in a chattel 3. Causation 4. Damages, harmless trespass will not suffice 1. P must prove that d intentionally without justification or consent physically interfered with the use and enjoyment of personal property in p's possession and the plaintiff was harmed thereby 2. only liable if there results harm to the owner's materially valuable interest in the physical condition, quality, or value of the chattel, or if the owner is deprived of use of the chattel, 3. Must act with the intention of interferng with the property or with knowledge that such interference is substantially certain to result.

Defense of Property

Elements. 1. Reasonable force may be used to prevent commission of a tort against property 2. Defense of property will NOT overcome privilege 3. No deadly force may be used 4. Reasonable mistake allowed -Owner must first make a verbal warning for intruder to stop, owner may make a mistake about whether force is necessary to protect property. Owner may use deadly force if non deadly force is insufficient or death may occur without deadly force -Value of human life and limb ourweights the interest of the landowner -Some states now allowed defendants to use force even deadly to prevent home invasion robberies

Vicarious liability

Employer could be held liable for the torts of certain employees, provided those torts were carried out within the SCOPE OF EMPLOYMENT- kind he is employed to perform it occurs substantially within the authorized time and space limits and is actuated at least in part by a purpose to serve the master. 1. Test for vicarious liability: whether the act was done while the servant was doing his master's work no matter how irregularly or with what disregard of instructions -Frolic and detour: detour is still within scope of employment. frolic, personal reasons is outside scope of employment -Going and coming: an employee going and coming from work is ordinarily considered outside the scope of employment so that the employer is not liable for his torts a. Exceptions a. When the trip involves a benefit to the employer b. When traveling to and from work involves and special hazard c. Duel purpose doctrine: when the employee performs a concurrent service for the employer while commuting d. The employer is generally not liable for intentional torts of the employees, unless the dispute is a reasonable foreseeable consequence of activity and is motivated by the employers business.

MI Government Immunity Statute

Exceptions to immunity 1. MI legislature threw out the ministerial and discretionary terms 2. GOV immune under these circumstances BHMNP -Buildings: maintenance of building conditions -Highways: maintenance of roadways -Medical care: except mental and prison hospitals -Negligent operation of a government owned vehicle -Proprietary functions: If Gov makes a profit 3. You cannot sue government employee acting within scope of employment, performing a gov function, and if they are not grossly negligent (substantial lack of concern for whether an injury results)

Defenses to Strict Liability

F. Defenses to Strict Liability - Assumption of Risk - Knew the risk and proceeded in disregard of the risk - Unforeseeable misuse? - Comparative Fault

Firefighters and EMT Rule

FF who entered premises to fight is a licensee to whom the owner or occupier owes no duty of care except to refrain from willful or wanton injury Private rescuers: Not applied to private individuals who undertake assistance in a fire. Private persons considered heroic is under the branch of the rescue doctrine, it is not contributory negligence or assumed risk to render assistance in a physical emergency

False Imprisonment

False imprisonment occurs when a person confines another intentionally without lawful privilege and against his consent within a limited area for any appreciate time however short. -physical restraint is not required Confinement may mean: physical barriers/ physical force/ threat of physical force IF you intend to leave/ threats by demand like calling th e police/ assertion of authority such as a submission to an officer's assertion of arrest/ duress of goods taking something so they can't leave Can recover even if actual harm didn't result unless you did not KNOW you were falsely imprisoned, then actual harm is required. -False imprisonment not found if P stayed in space f her own volition

Section 1983 Claims, Civil Rights

Federal Cause of Action -Must prove that the defendant deprived him of federal rights that were gaurenteed to him under the constitution, and that d was acting under the color of state law. -state law not federal. Why? -recover attorney's fees from losing d. -can bring claim in state or federal court Why not? -Qualified immunity, protects government officials from liability for civil damages as long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known

Proximate cause of damage

Foreseeability and intervening causes -Nt liable if the actual harm was not within the scope of the risk Scope of risk: formulations of the principle of proximate cause 1. Liability must be rejected unless a reasonable person would have reasonably foreseen and avoided harm of the same general kind actually suffered by P 2. Who negligently creates a risk eventuates in entirely different harm 3. D is liable only for harms within the scope of risks he negligently creates, superseding causes prevent D from being held liable for his negligence 4. Palsgrad- you are liable if the intervening cause was foreseeable -criminal acts per s are intervening causes. -willful, malicious, or criminal act breaks the chain of causation. -rapist intervening act that breaks causal chain for landlord -suicide is superseding cause of harm, except where there is knowledge by d of p's risk of suicide.

Federal Torts Claims Act

Governmental Immunity -The US shall be liable relating to torts claims in the same manner a a private individual under like circumstances but shall not be liable for interest prior to the judgment or for punitive damages. 1. P must submit a claim to the government agency involved and the suit is not permitted until the agency has refused payment or has delayed over six months in the making of a decision on it 2. Liability is determined by state tort law 3. The case is tried in federal court and the judge sits as the trier of fact, no jury

Contributory negligence

If P's conduct was unreasonable and caused at least in part P's injury, P's cause of action is barred 3 types of contributory negligence: 1. Pure: Doesn't matter what % of fault is placed on P, as long as D is partly at fault. P may collect % of damages from D that D caused. 2. Greater fault bar: P is barred if 51% or more at fault, no fault insurance 3. Equal fault bar: P is barred if 50% or more at fault Exceptions to the contributory negligence bar in a comparative fault regime 1. Plaintiff's illegal activity 2. Defendant's reckless or intentional misconduct 3. Last clear chance or discovered peril FELA RR Worker's Comp, was first contributory negligence statute to eliminate contributory negligence 3rd restatement: Apportion liability by assignment % of responsibility No contributory negligence available when harm that occurred would have been prevented by reasonable measured available to D

Prenatal Harms

If the child is born alive, most courts recognize that she has an action for tortiously inflicted prenatal injury regardless whether she was viable at the time of the injury or not. -When the child is stillborn and never lives, a wrongful death recovery is more likely to be permitted if the fetus was viable at some time during gestation -Wrongful Life: not a claim, brought on behalf of child for harm suffered by being born -Wrongful birth: doctor has negligently failed to diagnose a genetic difficulty with resulting physical harm fetus and emotional and economic harm to the parents. -a number of states prohibit this. -Wrongful conception: allegation that a defendant physician failed to prevent conception because he negligently performed a sterilization procedure on the father or the mother. face financial costs because of the defendant's negligence.

SOC for intelligent/ experienced person

If you have knowledge or experience or intelligence the law demands conduct consistent with it

Parental Immunity

Immunity abrogated (discarded) except in two situations 1. where the alleged negligent actions involves an exercise of parental authority over a child 2. Where the alleged negligent actions involves an exercise of ordinary parental discretion with respect to the provision of food, clothing, housing, medical, and dental services -step parents have same immunity but foster parents do not courts are divided.

Recreational Uses DOC

Imposes liability only for gross negligence or willful or wanton misconduct of the owner, tenant, or lessee. If refers to any person who is on the lands of another without paying i. Impossible to insure for risk that may occur with people coming onto expansive properties ii. Encourages property owners to open land for recreational activities

Assault

Intent/ Cause to put a person in apprehension of imminent harmful or offensive contact OR failed battery -Future harm only actionable under an intentional infliction of emotional distress -Look for extended liability principle like transferred intent. As with battery, intent can also be satisfied by showing intent to assault a third party and/ or the intent to commit another of the classic intentional torts. -Alteri: transfered intent: meaning to hit one person and end up hitting a third party and convicted for the assault and battery committed against the unintended party, intent transfers.

Intentional Torts

Intent: a required element of intentional torts. P must show that D acted with some intended consequence. D intends the consequence of his conduct if his PURPOSE is to bring about those consequences OR he KNOWS WITH SUBSTANTIAL CERTAINTY that the consequences will result from his actions. ABCFITTS Assault Battery Conversion of Chattels False imprisonment Intentional infliction of emotional distress Trespass to chattels Trespass to land Section 1983- Civil Rights

Strict Liability

Liability brought against D even if D is not at fault. Don't need to prove that standard of care was breached. 1. 3 reasons to impose strict liability a. animals i. wild animals: owner is strictly liable for all injuries ii. domesticated animals iii. MI rule, dog owners strictly liable for damage done to people except for trespassers

Assessing Scope of Risk

Is harm outside SoR because of the manner in which it occurred? It must be foreseeable Is harm outside SoR because its extent is unforeseeable? 1. Thin Skill cases: does not limit liability 2. Fire cases: when d's conduct otherwise qualifies as proximate legal cause of P's harm, D does not escape liability merely because the harm was more extensive than anyone foresaw or could have foreseen. Is harm outside the scope of risk because it results most directly from an act of intervening person or force? 1. Duty is to protect against harm 2. Bus accident w/ garbage truck, failure of breaks broke chain of caution, no liable for D 3. String of events cannot be long, must be reasonable foreseeable 4. Car accident, P goes to hospital, mistreated by D, D held liable for injuries resulting from poor treatment Scope of risk and natural and continuous sequence: the proximate cause of an injury is that which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces an injury, and without which the injury would not have occurred 1. An intervening cause that lies within the scope of the risk or has a reasonable connection to it is not a superseding cause 2. Intervening force of nature: the D is negligent but an intervening force of nature, such as violent storm, flood, etc is the immediate cause of harm. The D can escape liability of the harm done is different than the harm that was risked by the D's conduct in the first place

Necessity

May be used when an emergency occurs that requires the defendant to harm property in order to prevent greater harm to herself or others. 1. Public necessity a. Impending disaster to the community b. Reasonable belief of the danger is sufficient c. Under common law, no requirement to pay for the property damage in a public necessity context 2. Private necessity a. If harming property is the only way to prevent harm to oneself the defense of private necessity may apply b. If actual damages to the property are incurred defendant must pay for the damages

SOC- Landowner's duties to trespassers, licensees, and invitees

Michigan still uses categories 1. Undiscovered trespasser: no duty 2. Discovered trespasser: warn or make safe, known, dangerous, artificial, or concealed conditions on the land (people cut corner of yard) 3. Licensees: warn or make safe known, dangerous, artificial or natural conditions on the land 4. Invitees: warn or make safe known or DISCOVERABLE dangerous, artificial or natural conditions on the land. Duty to INSPECT or WARN or make safe. If invitee goes past area of status, may become a licensee or maybe trespasser » Invitee—any person on the premises •in part for the benefit of the landowner, business invitee •who is on premisis held open to the general public, public invitee Licensee-- •on the land with permission but with limited license to be there -If the person goes outside of the areas of his invitation he becomes a trespasser -05. Duty owed to invitees Owe a duty of reasonable care to invitees common law rules Specific applications of the general duty of care In USA tort law, a licensee is a person who is on the property of another, despite the fact that the property is not open to the general public, because the owner of the property has allowed the licensee to enter -» Trespasser—any person who has no legal right to be on another's land and enters the land without the landowner's consent 06. Duty owed to trespassers and licensees a. landowners do not owe a duty of reasonable care to trespassers or licensees, landowner owes only the duty to avoid intentional wanton or willful injury

Comparative Fault

Modified comparative fault: p who is assigned more than a 50% fault share recovers nothing because her fault is greater than defendants. -Jury judges the percentage

Legal Duty (Duty v. Standard of Care)

Must exercise the care that would be exercised by a reasonable and prudent person under the same or similar circumstances to avoid or minimize the risks of harm to others Level of care vary by circumstance, jury should provide standard of care for emergencies: -involves examining what a reasonable person would do under the same circumstances (same as use of dangerous instrumentalities) -Need to consider to determine whether or not a person was acting in a way that a reasonable person would act in THAT situation. Intoxicated person: -Owes the same care as a sober person if his overt conduct would be negligence in a sober person, it is also negligence in a drunken one. Sudden incapacitation -When person's alleged negligence is caused by a sudden physical incapacitation that is not foreseeable, there should be no liability, but up to D to prove sudden incapacitation.

Toxic exposure

Must prove by a preponderance 50%+ that future harm will occur

Negligence- Prima Facie Case

Negligence is any conduct that creates an unreasonable risk of harm to others Negligence becomes an actual tort when some sort of harm is experienced. Elements. 1. Standard of care creating a duty 2. Breach of that duty 5. Actual damage occurred 3. Breach is the actual cause of damage -prove that she suffered legally recognized harm and that harm was caused by d 4. Breach is the proximate cause of the damage ^proved by a preponderance of the evidence -if not a but for cause of all injury but just makes injury worse, then the negligence is just for the added harm. Harm and Factual cause/ actual harm: need this for cause of action, do not want every person who is jostled to bring a cause for recovery -Need to evaluate hypothetical situation concerning what might have happened if the d had not acted negligently would the outcome be the same? -Harm would not have occurred without the negligent conduct -increased risk showing causation Damages: nomincal, in name only

Strict liability/ nuisance

Noisy Neighbors Elements 1. substantial unreasonable interference with Ps use and enjoyment of her property 2. injunctive relief and past damages 3. a sensitive p is not covered -To be a nuisance it must be offensive to the senses

Duties of Medical and Other Professionals

P has burden of proving Doctor violated to prevailing SOC in order to establish medical malpractice National standard: physician must exercise same degree of care, skill, and proficiency exercised by reasonably careful, skillful, and prudent practitioner in the same class, acting under similar circumstances. MI applies national standard and applies modified locality standard rather than class judgment to family practitioners Specialists held to standard of specialties Non-medical doctors held to standard of school Doctors must refer patients to specialists when standard of care requires Reform in tort: caps on damages, res ipsa cannot be applied in med cases, standard of care must be local, statute of limitations is limited, only contracts inwrapping may support a malpractice claim, limited informed consent claims Nursing home abuse: D's subjective knowledge of peril his conduct creates is admissible to prove gross negligence

Actual Damage

P must suffer a legally cognizable (identifiable) harm

Trespass to Land (Real Property)

Plaintiff must prove an ownership or possessory interest in the land AND an intentional and tangible invasion, intrusion, or entry by the defendant onto that land that harms the plaintiff's interest in exclusive possession. -Intentional entry: personal entry, causing an object to enter the land, extends down beneath the ground and to a reasonable level above the ground (digging and flying) -Intentional entry is not required all the time such as when a person accidentally entered the land, however their refusal to leave then becomes the trespass. INTENT: Does not need to have an intent to trespass/ intent to enter is enough -D liable even if he did not ITNEND to harm p's property or interfere with exclusive right of possession. Right to enjoy the land is nuisance and is a separate tort. (it is an intangible invasion where trespass requires a tangible invasion .)

Self Defense

Privileged to use reasonable force to defend against imminent harmful or offensive bodily contact and against confinement. May not use deadly force, unless life is threatened. Elements 1. Imminent threat that cannot be in response to a past tort 2. Reasonable mistake is permissible 3. May not use more force than is reasonably necessary

What is a child's standard of care.

Same care as a reasonable child of the same age and intelligence and experience. If child participates in an inherently dangerous activity (usually motor vehicles) or adult activity, he/she will be held to a normal SOC (adult SOC) -car, firearm -What age does a child have to be to be liable for negligence? Rule of sevens, old common law -Minors over 14 are capable of negligence, those between seven and 14 are not, and under seven definitely not -MOST STATES: 3 and under are incapable of negligence, the restatement says 5

The Test for Strict Liability in Tort

The Test for Strict Liability in Tort: "A reasonably prudent manufacturer would have so designed and sold the article in question had he known of the risk involved with the injured plaintiff" - Balancing: the manufacturer's ability to eliminate the unsafe character of the product without impairing its usefulness of making it too expensive to maintain its utility. - Restatement of Products Liability: Requires that a plaintiff prove that a reasonable alternative design was or reasonably could have bee available at the time the product was sold or distributed. - There must be something wrong with a product before the risk/utility may be applied in determining whether the product is unreasonably dangerous or defective. 1. The purpose of the risk utility analysis is to determine whether the risk of injury might have been reduced or avoided if the manufacturer had used a feasible alternative design 2. There is no reason to search for an alternative safer design where the products sole utility is to kill and maim. 3. Dangerous per se: if a reasonable person would conclude that the danger of the product, whether foreseeable or not, outweighs its utility. Essentially the same thing as the risk utility analysis

Vicarious liability/ Franchise

Under the apparent agency doctrine, a principle can b held vicariously liable in for the injury caused by the negligent acts of his apparent agent if the injury would not have occurred but for the INJURED PARTY'S JUSTIFIABLE RELIANCE on the apparent agency

Nonfeasance, No duty to act rule

a. Under the general common law rule, one person owes another no duty to take affirmative steps for the other's protection b. There is liability for misfeasance- negligence in doing something active- but no liability for nonfeasance 1. Exceptions -A person who knows or has reason to know that his conduct, whether rotaries or innocent has caused harm to another has an affirmative duty to render assistance to prevent further harm. One who breaches such duty is subject to liability for damage incurred as a result of the additional harm proximately caused by such breach -there is a clearly recognized legal duty of every person to avoid any affirmative acts, which may make a situation worse -where the D discontinues aide, the restatement imposes liability only if the D has left the victim in a worse position -Special relationships as a basis for a duty of affirmative action a. the carrier passenger b. the innkeeper guest c. the landowner invitee d. the custodian ward e. the employer employee

Res Ipsa Loquitor

the thing itself speaks -if there is conduct that can be explained with d's negligence, cannot use this Unspecified negligence, allows case to go to jury even thought it is unclear from facts who caused what negligence; it is clear that negligence was caused. 1. Shows D's negligence when a. Accident is of a type that normally would not occur unless someone was negligent b. the instrumentality or agent which caused the accident was under the exclusive control of the d c. the circumstances indicated that the untoward event was not caused or contributed to by any act or neglect on the part of the injured person. -restatement, other responsible causes including the conduct tor the p and third person are eliminated by evidence, negligence is within the scope of the d duty to the p PERMISSIBLE INFERENCE EFFECT -creates a permissible inference that the jury may draw negligence if it sees fit 2. Usually applied in gross negligence cases, there must be specific conduct 3. Applies against all of docs and med employees who take part in caring for patient when an unexplained injury occurs during a medical procedure to a party of the body not under treatment, e.g. arm injury with appendicitis -Some courts have presumption, and it is up to d to rebut it. -P must show negligence is more probable than not, or that the event doesn't't occur without negligence of someone. -Can have evidence on d's negligent conduct but cannot fully explain it or you would just have to sue for negligence -control rule, exploding bottle rule, some courts requirement p to prove no comparative fault, contributory negligence will reduce but not BAR the claim in other courts. -When two or more d have been in serial control further information is typically needed in order to establish that any one of them was the negligent party and the burden of coming forward is on p. -if two parties have an ongoing relationship pursuant to which they share responsibility for a dangerous activity and if an accident happens establishing the negligence of one of the two imposing res ipsa loiter on both is proper.

DOC Lessors

§6. Lessors Restatement 3d Lessor shave a duty of reasonable care for a. the portions of the leased premises over which the lessor retains control b. conduct of the lessor creating risks to others and c. disclosure of certain dangerous conditions Faire to warn or repair known dangers is negligence