Torts UVA LAW

Scope of the invitation

A person may lose invitee status and become a trespasser by being on the premises at a time outside the scope of his invitation.

Scope of the invitation in premises liability

A person may lose invitee status and become a trespasser by being on the premises at a time outside the scope of his invitation.

Duty of possessor of land to those off premises

A possessor of land is subject to liability for harm caused on adjacent property by the condition of a tree if the exercise of reasonable care would have disclosed the condition and the risk involved and the condition could have been made reasonably safe.

Vicarious liability in independent contractor situations

A property owner who engages an independent contractor is responsible for the acts or omissions of the independent contractor or its employees when the property owner retains control over the manner in which the work is done.

Co-defendant liability

Involves joint and several liability against multiple defendants. P can recover all the money from any one D. D who paid can recover from the other D's based on a theory of comparative contribution that is equal to their degrees of fault. But if the others are insolvent, the D is out of luck.

Vicarious liability of an automobile owner for a driver

Pennsylvania has not adopted either the "family car" or the "permissive use" doctrine. Hence, in most cases, a car owner will not be vicariously liable for the driver's torts. However, if the driver was unlicensed and was permitted by the owner to drive, the owner will be vicariously liable.

Private persons must prove negligence if matter of private concern

Pennsylvania requires proof of negligence even for defamation on matters of private concern.

Children

Pennsylvania's rules on the minimum age for children to be capable of negligence are derived from criminal law: (i) children under seven are conclusively presumed to be incapable of negligence; (ii) children from seven to 14 are rebuttably presumed to be incapable of negligence; and (iii) children over 14 are presumed to be capable of negligence.

Information defect

The product has: (1) residual risks that cannot be designed out in a practical way, (2) the risks are hidden to the consumer, and (3) the product lacks adequate warnings. foreseeable risk of harm could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor

"Retained control"

"Retained control" may be shown by contractual provisions giving the property owner control over the manner, method, and operative details of the work, or by showing that the property owner exerted actual control over the work. (Note: A property owner's imposition of safety rules at a worksite is not enough to show control over the work.)

Exceptions to the no affirmative duties rule

"SCRAP" HB Statutory duty Contractual duty Relationship Assumption of duty voluntarily Peril Businesses (to costumer, constructive notice) Duty to Prevent Harm from Third Persons (1) Pre-existing relationship: If D has a pre-existing (formal legal) relationship with P, then D has a duty of care. (Examples: Common carrier-passenger; Hotel-guest) (2) If D puts P in (any) peril, the D owes a duty a care. Duty of care, NOT duty to rescue. No one has to risk their life. (i.e. Call the fire department)

Causation

(1) Factual causation: P must establish a connection between the breach and injury. ("A factual cause," not THE factual cause.) (2) Proximate cause: Foreseeability and fairness of holding D liable for the harm

General propositions for intentional torts

(1) All plaintiffs are assumed to be normal for the purpose of each cause of action (hypersensitivity cannot be the basis of a claim) (2) There are no incapacity defenses to to intentional torts (kids, crazies, and drunks can get sued)

Implied consent

(1) Arising from custom or usage. Comes up when P goes to a place or engages in activity, where certain invasions are routine. Contextual. (Examples: Riding a train during rush hour on a work day; team sports, such as football or basketball, sitting in a barber's chair in a barber shop) (2) Based on D's reasonable interpretation of P's objective conduct and surrounding circumstances. (Body language consent, but not limited to body language) We're all entitled to read social cues and act on those cues, but we are constrained by reasonableness. Exception: A consent given as a result of fraud or duress negates consent.

Defenses to strict products liability claims

(1) Assumption of risk (can be a complete defense) (2) Product misuse (3) Adequate warnings (must look at the wording, placement, etc. of the warning. (Contributory negligence never a defense)

Three classic abnormally dangerous activities

(1) Blasting: The use of explosives (2) Handling of extraordinary hazardous or toxic materials (3) Handling of high doses of radiation or nuclear power

Affirmative defenses to negligence

(1) Contributory negligence (2) Implied assumption of the risk (3) Comparative negligence

Elements for strict liability for products

(1) D must be a merchant (commercial supplier) (2) The product must have a defect (sold or produced) (3) The product has not been altered since leaving D's control (actual cause) (4) P must have been making a foreseeable use of the product at the time of the injury (proximate cause) (5) P suffered damage to person or property

Battery

(1) D must commit a harmful or offensive contact (objective test). (2) The contact must be with P's person.

Intentional infliction of emotional distress

(1) D must engage in outrageous conduct (intend or be substantially certain that harm will result,) (2) P must then suffer severe distress. (Note: For this tort, D need not act intentionally -- reckless conduct will trigger liability. IIED is the only intentional tort that requires damages.)

Assault

(1) D places P in reasonable apprehension. (2) The apprehension is of an immediate battery.

Exceptions to the statutory standard of care

(1) Statutory compliance would be more dangerous than a statutory violation. Tedla v. Ellman (Example: Swerving to avoid hitting a girl, but D crosses a double yellow line, so the statutory violation would not be the standard. The P must use the RPP standard.) (2) Statutory compliance is impossible. (Example: D has a heart attack, so doesn't stop at a red light. After proving that compliance was impossible, discuss RPP. i.e. if he had a history of heart attacks and forewarning; or if he didn't take his heart medicine) (3) actor's reasonable ignorance of the law (4) emergency not of actor's making

Plus factors of outrageous conduct

(1) The bad behavior is repeated or continuous over time. (2) D is a common carrier or an innkeeper. (i.e. Amtrak, Airline, Marriot, B&B) (3) P belongs to a fragile class of persons - i.e. children, elderly people, pregnant women. (4) D has prior knowledge of P's emotional sensitivity and exploits it.

Miscellaneous topics

(1) Vicarious liability (2) Co-defendant liability

But for test

* "but for" test (single cause or concurrent causes [each of which was necessary to the event]) * Stubbs v. City of Rochester (* in a negligence action, the fact that the plaintiff's condition could have been caused by factors other than the defendant's negligence does not obligate the plaintiff to provide that none of those factors was actually the cause ) * D's defense: Even if I had been careful, P would have still been harmed.

Setting fault percentages

* 1. whether conduct was mere inadvertence or engaged in with an awareness of the danger involved * 2. magnitude of risk created by the conduct including the number of persons endangered and potential seriousness of the injury * 3. significance of what actor was seeking to attain by his conduct * 4. actor's superior or inferior capacities * 5. particular circumstances such as existence of emergency

proximate cause Direct Cause cases

* A direct cause case is one where the facts present an uninterrupted chain of events from the time of the defendant's negligent act to the time of plaintiff's injury. In short, there is no external intervening force of any kind. * foreseeable harmful results - defendant liable (unusual manner or timing of cause and effect is irrelevant) Polemis : extent of harm irrelevant *unforeseeabe harmful results - defendant not liable * In the rare case where defendant's negligent conduct creates a risk of a harmful result, but an entirely different and totally unforeseeable type of harmful result occurs, most courts hold that defendant is not liable for that harm.

Proximate Cause Indirect Cause Cases

* An indirect cause case is one where the facts indicate that a force came into motion after the time of defendant's negligent act and combined with the negligent act to cause injury to plaintiff. In short, indirect cause cases are those where intervening forces are present. Whether an intervening force will cut off defendant's liability for plaintiff's injury is determined by foreseeability. *

Injuries caused by animals

* An owner or possessor of livestock or other animals, except for dogs and cats, that intrude upon the land of another is subject to strict liability for physical harm caused by the intrusion. * D is not strictly liable for P's harm caused by the animal, UNLESS he had knowledge of the animal's dangerous or vicious propensities. "Knowledge of the animal's dangerous or vicious propensities" refers to this particular animal, not the species as a whole. (Example: If your dog has previously bitten someone, then you will be held strictly liable.) But D will be strictly liability for harm caused by wild animals, no matter how many precautions he takes.

Intrafamily duties Duty to fetus

* Bonte v. Bonte : defendant failed to use reasonable care in costing the street, resulting in severe injuries to her unborn child; court rejected notion that fetal injury warranted different treatment from claims brough by child already born * Remy v. MacDonald : pregnant defendant drove negligently and hurt fetus ; court decided that mother did not owe a duty of care to her fetus

dependent intervening forces:

* Dependent intervening forces are normal responses or reactions to the situation created by defendant's negligent act. Dependent intervening forces are almost always foreseeable. The following are common dependent intervening forces: 1. subsequent medical malpractice 2. negligence of rescuers 3. efforts to protect person or property 4. reaction forces 5. subsequent disease 6. subsequent accident for 5. secondary harm Soleson v. United States (plaintiff exposed to nitroglycerine; harm temporary, but developed hypochondria after the episode and unable to function normally) for 6. Pridham v. Cash & Carry Building Center (plaintiff seriously injured by defendant's negligence and died in ambulance when driver transporting him suffered heart attack and swerved into tree; defendant liable for further injuries)

Cases re NIED

* Falzone v. Busch : Court imposed liability for such infliction of mental or emotional distress when negligence created the potential but not the occurrence for physical harm to the traumatized individual * Scherr v. Las Vegas Hilton : wife saw live television coverage of fire at Hilton Hotel where her husband had a meeting at the time ; court found that plaintiff had failed to come within the sensory perception requirement * Barnhill v. Davis : plaintiff saw his mother's car get hit on the driver's side by defendant's car through the rear view mirror ; plaintiff allege serious emotion and physical harm before learning that the injury was only slight ; court stated that the proper test was whether a reasonable person would believe that his mother would be seriously injured in the type of accident that occurred * Thing v. La Chusa : mother who was nearby, neither heard nor saw the accident injuring her child but was told about it and rushed to the scene to see child's bloody and unconscious body ; court saw three factors of Dillon not as guidelines but defining elements * viewing of consequences of an accident is insufficient * Entergy Mississippi Inc v. Acey : plaintiff's daughter on farm, climbed on agricultural machine and made contact w a sagging power and was badly burned ; both contemporaneous observance and proximity are missing ; court reversed denial of summary judgment * Marzolf v. Stone : relatives came to the scene of an accident shortly after it happened * court : claims for emotional distress should be upheld if the distress is "caused by observing an injured relative at the scene of an accident shortly after its occurrence and before there is a substantial change in the relative's condition or location" * arbitrary line? * NEW YORK * Tobin v. Grossman : rejected Dillon * Bovsun v. Sanperi : overruled Tobin's total refusal to allow an action and extended duty to members of the immediate family who were themselves in the zone of physical danger * zone of danger rule allows one who is himself threatened with bodily harm in consequence of the defendant's negligence to recover for emotional distress resulting from viewing the death or serious physical injury of a member of his or her intermediate family * there is no creation of a duty to a plaintiff to whom the defendant is not already recognized as owing a duty * circumstances also must not be altogether common * emotional distress must be serious and verifiable * Child sexual abuse: Doe Parents No. 1 v. State Department of education * court held that plaintiff parents of children who had been fondled and otherwise molested by a schoolteacher could recover for their emotional distress without proof that their children had suffered physical injury * Huggins v. Longs Drug Stores : plaintiff parents followed an incorrect label and gave their infant an excessive dose of medicine ; parents claim against pharmacist was rejected; dissent: plaintiffs were direct victims since they were necessary parties to the administration of the medicine ; all the guilt that parents feel when they are, although innocent, instruments of harm to their children * Jarrett v. Jones : plaintiff suffered minor injuries in car accident resulting from defendant's negligence ; he walked over to defendant's car and saw two year old child dead ; recovery for physical harm and consequential emotional harm from observing the child ; court categorized plaintiff as direct victim and therefore the restrictive rules on bystander recovery did not apply

Proving a manufacturing defect

* For a manufacturing defect, the plaintiff will prevail if the product was dangerous beyond the expectation of the ordinary consumer because of a departure from its intended design. * consumer expectation test favorable to plaintiffs * similar to reasonable person standard * consumer expectation test also sometimes used in design defect cases * Morton v. Owens-Corning Fiberglas Corp. * insulation installer sued asbestos suppliers after contracting mesothelioma * succeeded on consumer expectation approach * no questioning regarding asbestos's function in retarding fires * it violated commonly accepted minimum safety assumptions because of health hazards

Proving Design Defect

* For design defects, the plaintiff usually must show a reasonable alternative design, i.e., that a less dangerous modification or alternative was economically feasible.The factors that the courts consider under the "feasible alternative" approach are the following: * (i) Usefulness and desirability of the product; * (ii) Availability of safer alternative products; * (iii) The dangers of the product that have been identified by the time of trial; * (iv) Likelihood and probable seriousness of injury; * (v) Obviousness of the danger; * (vi) Normal public expectation of danger (especially for established products); * (vii) Avoidability of injury by care in use of product (including role of instructions and warnings); and * (viii) Feasibility of eliminating the danger without seriously impairing the product's function or making it unduly expensive.

Indiana Harbor Belt Railroad Co. v. American Cyanamid Co.

* Shipping hazardous chemicals by rail through metropolitan areas is not an abnormally dangerous activity, and shippers will not be strictly liable. * Posner puts emphasis on the factor regarding "the risk is unavoidable even with due care" -> leak was caused by someone's carelessness and is therefore avoidable * safety levels = exercise of due care, in contrast with activity level

Time delay

A battery does not have to happen instantaneously. Example: Poisoning someone's lunch.

Calabresi article

* Hand Formula and * reverse Hand Formula to show Posner is wrong * you could ask about the plaintiff's burden and you will get to the same outcome which accidents should be avoided and which shouldn't * you will deter the same accidents but you will only change who will bear the costs * safety levels the same in the Hand formula and the reverse Hand formula * Calabresi thinks the right question to ask is who is the cheapest cost avoider? * deterrence value * administrative costs: figuring out the Hand Formula is costly both ex ante and ex post * primary accident costs and secondary costs (ex ante and ex post by parties and court) * what is socially efficient * there are situations where it is difficult to determine who the cheapest cost avoider is * a lot of the time it is the defendant who is in the best position to avoid the accident * cons: moral hazard for plaintiff

Cost Benefit Analysis with Strict Liability

* Hand Formula works the same for strict liability as for negligence ; standard of SL or NEGL makes no difference * B < PL : the rational actor will take precaution whether under SL or NEGL * B > PL : if precaution more expensive than the risk and you run the risk and the risk happens, under SL you have to pay for it, under NEGL you don't * both SL and NEGL will make actors take cost justified precautions * SL will affect activity levels, possibly drive defendants out of the market

Hood v. Ryobi America Corp.

* Hood (plaintiff) purchased and used a saw manufactured by Ryobi America Corp. (Ryobi) (defendant). Despite at least seven clear, simple warnings not to do so in the manufacturer's manual, Hood removed the blade guards from the saw and used it for home carpentry. * In determining whether a warning is adequate, courts should consider whether the benefits of a more detailed warning outweigh the costs of requiring the change. * A warning label listing every possible consequence from every possible misuse of a product runs the risk of being too technical and dense to be adequately read and understood.

Independent Intervening Forces

* Independent intervening forces also operate on the situation created by defendant's negligence but are independent actions rather than natural responses or reactions to the situation. Independent intervening forces may be foreseeable where defendant's negligence increased the risk that these forces would cause harm to the plaintiff. * 1. Negligent acts of third persons : defendant is liable for harm caused by negligence of third persons where such negligence was a foreseeable risk created by defendant's conduct 2. criminal acts and intentional torts of third persons :* If defendant's negligence created a foreseeable risk that a third person would commit a crime or intentional tort, defendant's liability will not be cut off by the crime or tort. * Hines v. Garrett * conductor told 18 year old who was carried a mile past the stop improperly to walk back to depot through known shady area ; railroad was held liable for damages of rape * foreseeable that an assault might happen ; defendant knew it was a dangerous area) 3. Acts of God : if foreseeable, defendant still liable

Intra-family tort immunities

* Injury to Person Under the traditional view, one member of a family unit (i.e., husband, wife, or unemancipated child) could not sue another in tort for personal injury. This view has undergone substantial change in most states. *Injury to Property A suit for property damage may usually be maintained by any family member against any other family member. In short, to the extent that intra-family tort immunity exists, it applies to personal, not property, injuries.

History of strict liability for products

* MacPherson v. Buick Motor Co. : end of privity (as in Winterbottom -> no liability) and development of negligence * claim of duty of reasonable inspection (negligence claim) * issue is whether the defendant owed a duty of care to anyone beyond the retailer -> yes * Escola v. Coca-Cola Bottling Co. of Fresno : negligence claim for soda bottle exploding in waitress's hand * majority uses res ipsa loquitur * J. Traynor argues for strict liability Greenman v. Yuba Products : California adopts SL

Husband Wife Immunity

* Most states have abolished interspousal immunity. Either spouse may now maintain a tort action against the other.

lost chance doctrine

* Negligent actions may be the proximate cause of a person's death when they reduce the person's overall chance of survival by some degree, regardless of whether the person initially had a greater than fifty-one percent chance of survival. * plaintiff must establish by preponderance of the evidence that defendant caused injury, aka the likelihood of achieving a more favorable outcome was diminished by defendant's negligence *usually only applicable to medical malpractice claims Matsuyama v. Birnbaum (gastric cancer, plaintiff had 37.5 chance of survival) Dillon v. Twin State & Electric Gas Co. (* boy about to fall down from bridge to his death ; catches exposed wire which electrocutes him; small chance of survival if wire properly insulated? however, issue of but for causation since he would prbly have died anyway)

Irreducibly unsafe product

* O'Brien v. Muskin Corp : plaintiff was hurt when he dove into an above ground swimming pool * no RAD , no liability * some courts as NJ impose strict liability * is the product cost justified? (ex: knives are justified ; exposing cigarettes are not) * in ground pool way more expensive * when risks of injuries outweigh the utility of the product and there is no other way of design, then manufacturer should be discouraged from putting it out on the market * limitation : no liability when there is no practical or technically feasible alternative design that would have prevented the harm without substantially impairing the reasonably anticipated or indeed function of the product * exception if * product is egregiously unsafe or ultra hazardous * ordinary user of the product cannot reasonably be expected to have knowledge of the product's risks or the product poses risks to persons other than the consumer or user * product has little or no usefulness

Fletcher v. Rylands

* Rylands is liable for damage caused to Fletcher by the escape of water from his reservoir. A person who lawfully brings something onto his land that, if it escapes, is capable of doing harm, is strictly liable for any harm occurring as a natural consequence of the escape. * Blackburn : something is brought onto land and it will do mischief then defendant is strictly liable * Rylands v. Fletcher : * Cairns : nonnatural use of the land and it causes harm -> defendant is strictly liable * Cranworth : bring or accumulate anything on the land which may do mischief * -> foreseeable mischief making and not a natural condition

Government tort immunities

* Under the doctrine of sovereign immunity, governmental units were traditionally not subject to tort actions unless they had consented to the suit. Now, by statute and judicial decision, that immunity is considerably limited. Note, however, that a waiver of sovereign immunity does not create any new tort duties; it only waives immunity for existing statutory or common law duties of care. *discretionary acts : policy level decision making; planning and decisions making level * immunity *ministerial acts : acts the government and its agents are required to do ; operational level * liability

Sulllivan v. Dunham

* clearing a tree on property with dynamite, debris fell on pubic highway and killed Sullivan * direct injury of blasting -> strict liability * negligence standard for concussion * rationale : direct trespass and trespass on the cause * Court eventually abandoned this distinction SIC UTERE - use your own property in such a way as not to cause harm to others

Conflict Preemption

* conflict between state and federal law which invites the conclusion that Congress must have meant to preempt state law * obstacle : federal statute has a goal and the state provision in question is an obstacle to that goal * impossibility : it is impossible to comply with the federal rule and the state rule at the same time

Standard for Punitive Damages

* constitutional standard : single digit ratio * common law standard : excessive that it shocks the conscience BMW v. Gore : 3 factors whether punitive damages awards are "grossly excessive" * (1) the degree of reprehensibility of the defendant's misconduct; * (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and * (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases. State Farm Mutual Automobile Insurance Co v. Campbell : Awards of punitive damages by state courts that exceed a single-digit ratio between punitive damages and compensatory damages are usually "grossly excessive" and violate the Due Process Clause of the Fourteenth Amendment. Boeken v. Philip Morris Inc. : court awarded punitive damages nine times greater than compensatory damages ; in a subsequent case involving same defendant, same counsel and much of the same conduct , court awarded punitive damages 33 times greater (Bullock v. Philip Morris Inc.)

Defense to strict liability claims

* contributory negligence is not a defense where the plaintiff merely failed to discover the defect or guard against its existence or where the plaitniff's misuse was reasonably foreseeable * assumption of risk : voluntarily and unreasonably encountering a known risk is a defense * comparative negligence : most states apply their comparative negligence rules to strict products liability actions

Traynor arguments for strict products liability

* cost-spreading (manufacturers can pass the costs onto consumer base) * deterrence (manufacturer places product on the market) * cheapest cost avoider (manufacture can better test product and discover hidden defects, in control of production) * fairness, consumer has no way to guard against it * consumers don't have perfect information ; information asymmetries * compensation to victims (complicated by availability of insurance) * real information symmetry between plaintiff and manufacturer * strict liability to make up for the lack of information we have * enterprise liability (obligated to internalize externalities that pose risks and dangers to other people)

Soule v. General Motors Corp.

* defective design allowed front wheel to break free and smash floorboard into plaitniff's feet and ankles * court uses risk utility test (similar to cost benefit analysis in negligence cases) * if the product is such that the plaintiff does not have an intuitive sense what to expect and they need experts to explain the functions of the product, then risk utility test applied * plaintiff has to prove that reasonable alternative design is feasible and would reduce risk of harm * that the RAD has a better cost-benefit profile than the actual design of the vehicle

Effect of Strict Liability

* effects on activity levels * internalize costs * not engage in activity (if they cannot spread losses, then it will decrease activity levels) * improve activity

punitive damages - harm to non-parties

* harm to non-parties : Philip Morris USA v. Williams * US Supreme Court ruled that the due process clause barred consideration of harm to others in awarding punitive damages * adjudicating the existence and number of others harmed, the seriousness of harm suffered and the culpability of defendant's conduct toward others would be nearly impossible * without requiring such proof and affording defendant the opportunity to respond denies defendant fundamental procedural protection * however, the court held that a jury may consider the harm inflicted on others in assessing the reprehensibility of the defendant's conduct and in deciding on the proper ratio between compensatory and punitive damages * Bullock v. Philip Morris USA : court overturned a 28 billion punitive damages award that had been reduced to 28 million on a remittitur by the trial court on the basis of a jury instruction inconsistent with the due process limitations established in Willliams

Warning Rules

* heeding presumption that consumer will read and heed adequate warning adopted by several states * burden on defendant to show that the user would not have followed an adequate warning i one had been given * presumption justified because it operates as a strong incentive to manufactures by subjecting them to liability for inadequate warning without the jury needing to speculated on whether an adequate warning would have prevented plaintiff's injury (Coffman v. Keene Corp) * a warning does not necessarily absolve the manufacturer from the duty to eliminate that risk with a reasonable redesign of the product * Hansen v. Sunnyside Products : the risk to the consumer of the design of many household products cannot be rationally evaluated without considering the product's warnings

strict liability policy Q: who should bear the risk?

* how we perceive the plaintiff and the defendant affects this decision * cheapest cost avoider * apportion liability among multiple defendants who has more of a causal connection to the accident

Hand Formula

* likelihood and severity of harm vs utility of the actor's conduct and burden to the actor of avoiding the harm or minimizing the risk via the proposed alternative course of conduct * B > P x L = not liable * B < P x L = liable United States v. Carroll Towing

Res ipsa loquitur

* mere occurrence of the accident is sufficient evidence to permit a jury to conclude that the defendant breached a duty * permissive inference of negligence : fact finder may find that the defendant's negligence caused the accident, but the fact finder is not required to do so * satisfies initial burden to produce evidence but not necessarily the ultimate burden of persuasion * Jury must find that: (1) The accident that occurred is NORMALLY associated with negligence. P argues the probabilities; appeal to common sense. (2) The accident would normally be due to accidents in someone in D's position. P must have evidence that D had (exclusive) control over the object. (3) victim's lack of fault ; if victim's own negligence did not contribute at all to the accident ; however, sometimes comparative negligence jurisdictions may simply reduce any recovery in proportion to the victim's percentage of fault for the accident rather than barring res ipsa altogether Byrne v. Boadle Larson v. Francis Hotel (guests not employees of hotel owner, therefore no vicarious liability) Fireman's Fun American Insurance Co. v. Knobbe (unable to prove which defendant had been negligent in smoking; * res ipsa loquitur only when the plaintiff is able to establish the probability that a particular defendant's conduct was the cause of the plaintiff's harm) * if multiple actors in a hierarchical relationship had control over a harmful instrumentally some courts allow res ipsa to apply against all actors in the hierarchy * Ybarra v. Spangard

Dreisonstok v. Volkswagenwerk AG

* microbus swerved into tree * claim for design defect : passenger compartment in front of vehicle * court rejected claim ; it is a feature of the bus , storage space * price is a factor to be considered * manufacturer has a duty to adopt a design that mitigates harm at no substantial price increase * in this case, no evidence that there was any practical way of improving the design of the vehicle that would be consistent with the peculiar purposes of its design * availability of product would change and class of consumers able to afford it

Alternative causes doctrine

* multiple actors were negligent ; at least one of the acts caused the victim's harm ; it is impossible to tell which actor's negligence caused the harm ; burden shifts to each negligence defendant to show that his negligence did not cause the injury * Example: Alex and Basil both negligently fire shotguns in Clara's direc- tion. Clara is hit by one pellet, but she cannot tell which gun fired the shot. Under the alternative causes approach, Alex and Basil will have to prove that the pellet was not theirs. If unable to do this, they may both be liable; we'll hold them liable even though by preponderance of the evidence we cannot prove their liability, Summers v. Tice, 33 Cal. 2d 80 (1948)]

Medical Malpractice claims

* practitioner following the custom of procedure, treatment, etc comply with the standard of care, no matter whether the custom is unreasonable in light of alternatives available Gala v. Hamilton (local v. general anesthetic) * some jurisdictions have the locality rule : standard of care for general practitioners is the level of care and proficiency of a typically careful, skilled and prudent doctor in the same locality at the time the care was rendered ; a minority view now * modified locality rule : same or similar localities * same or similar circumstances rule ; standard of care for general practitioners is that of a typically careful, skilled and prudent doctor in the class to which the doctor belongs acting in the same or similar factual context * standard of care for general practitioners is that of a typically careful, skilled and prudent doctor with the necessary knowledge, skill, experience, training or education Shelley v. Memorial Hospital (rule of same or similar locality rule no longer applicable in light of increasingly national standards of medical care) specialists : higher standard of care than general practitioners ; applicable standard is a national standard

Customs and Standards

* reasonable quantum of care : if custom calls for a reasonable quantum of care , then the actor's failure to follow it will be deemed unreasonable * less than reasonable quantum of care : if the custom calls for a lower level of care than what is reasonable, then the defendant may be liable despite following the custom * if the custom calls for a greater quantum of care than what is reasonable, then an actor's failure to follow the custom will not necessarily be deemed unreasonable Unlike negligence per se, customs do not have the force of law Trimarco v. Klein Garthe v. Ruppert (even if only a couple other breweries have non slippery floor, burden is much lower than risk and severity of injury, therefore negligence)

Adequacy of the warning

* reasonable warning under the circumstances * warning must adequately indicate the scope of the danger * the warning must reasonably communicate the extent or seriousness of the harm that could result from misuse of the product (how much information is reasonable) * physical aspects of the warning must be adequate to alert a reasonably prudent person to the danger * a simple directive warning may be inadequate when it fails to indicate the consequences that might result from failure to follow it * means to convey the warning must be adequate * concerns : Research exists showing that the more convoluted a warning label, the greater potential for the message of the label to be lost due to all the text. * salience of the warning ? (ex : suicide warnings : putting ideas into people's heads)

Importance of Q : is the risk one that cannot be eliminated by reasonable care?

* reasons for (3): deterrence - in certain kinds of activities you cannot promote safety level with a negligence standard because even with exercise of due care the activities are inherently dangerous * reasons against (3): deterrence - underestimating effect of strict liability on safety levels

Express Assumption of Risk - Tunkl factors

* six factors for determining whether an exculpatory agreement violates public policy: * (1) whether the agreement concerns a type of business suitable for public regulation; * (2) whether the party seeking exculpation provides a service that is important to the public or a matter of practical necessity; * (3) whether that party provides the service for any, or nearly any, member of the public who seeks it; * (4) whether, because of the essential nature of the service, that party has an advantage of bargaining strength against a member of the public seeking the service; * (5) whether that party provides only an adhesion contract, and does not allow the public to pay additional fees to obtain protection from negligence; and * (6) whether the member of the public seeking services is placed under the provider's control and is subject to the risk of the provider's carelessness.

standard for amount of damages

* standard for amount of damages : excessive if it shocks the conscience * then it is likely the product of passion, prejudice or corruption on party of jurors * trial judge can take care of it by remittitur or additur * Duty to mitigate damages : As in all cases, the plaintiff has a duty to take reasonable steps to mitigate damages—in property damage cases to preserve and safeguard the property, and in personal injury cases to seek appropriate treatment to effect a cure or healing and to prevent aggravation. Failure to mitigate precludes recovery of any additional damages caused by aggravation of the injury. * collateral sources : As a general rule, damages are not reduced or mitigated by reason of benefits received by plaintiff from other sources, e.g., health insurance, sick pay from employer. Hence, at trial, defendants may not introduce evidence relating to any such financial aid from other sources.

Damages in the event of death

* survival actions: provide for recovery of damages that deceased could have obtained before death ; right to sue is held by the deceased person's estate ; measurement of past lost income and medical expense, i.e. the loss suffered between the time of injury and the time of death, is similar to non death cases * Sander v. Geib : defendant's negligence in discovering cervical cancer led to death of 34 year old wife and mother of three; jury awarded 1 million * Durham v. Marberry : plaintiff's decedent was killed instantly in a collision -> loss of enjoyment of life damages : damages that compensate a pre-death loss of the ability to enjoy life's activities while still living

joint and several liability

* under joint and several liability plaintiff could collect all the damages from whichever defendant she chose ; therefore plaintiff did not care whether one of the defendants was insolvent * because plaintiff could recover full damages in a a suit against one of the defendants, joint and several liability also placed the burden of pursuing other potential tortfeasors on the defendant

Pockets of strict liability within negligence

* vicarious liability * objective standard as strict liability for some persons who could not do any better (Vaughan v. Menlove) * Ybarra v. Spangard : liable for something that they did not do * res ipsa - does care about whose fault it is ; the type of evidence is enough to infer negligence * market share liability * holding someone negligent in compliance error situation, effectively works like strict liability B>PL

Parent Child loss of consortium

1. Parent's Actions A parent may maintain an action for loss of the child's services and consortium when the child is injured as a result of defendant's tortious conduct, whether such conduct is intentional, negligent, or based on strict liability. 2. Child's Action A child has no action in most jurisdictions against one who tortiously injures his parent. * Roberts v. Williamson : rejected cause of action for parents for the lost consortium of their injured child ; siblings are similarly barred * Green v. Bittner : death of high school senior ; * court held that jury should be allowed to award damages for the parents loss of their child's companionship as they grow older when it may be most needed and valuable * must be that kind of advice guidance or counsel that could be purchased from a business adviser, therapist or a trained counselor * Borer v. American Airlines : court refused to allow a suit for the benefit of nine young children whose mother had been injured to such an extent that she was unable to provide the usual parental care * Ferriter v. Daniel O'Connell's Sons Inc : children of paralyzed accident victim asserted claim for parental consortium : court rejected Borer and held up the claim, because the children were minors who had a viable claim for loss of parental society * not only economic requirements but filial needs for closeness, guidance and nurture

Negligently Inflicted Emotional Distress Approaches

1. common law : no duty 2. physical impact requirement 3. Zone of Danger Rule : when negligence of D created the potential but no the occurrence for physical harm to the P (Falzone v. Busch) 4. Dillon Rule :(1) whether the plaintiff was located near the scene of the accident; (2) whether the plaintiff's emotional distress resulted from directly witnessing the accident; and (3) whether the victim and the plaintiff were closely related. 5. Portee v. Jaffee : * (1) the death or serious physical injury of another, caused by defendant's negligence; * (2) a marital or intimate family relationship between the plaintiff and the victim of the accident; * (3) direct observation of the accident by the plaintiff at the scene of the accident; and * (4) severe emotional distress suffered by the plaintiff as a result. In this case, the trial court erred in basing its dismissal on the fact that Portee had not been subjected to any risk of physical harm.

Implied Assumption of Risk

1. knowledge of risk 2. voluntary assumption Murphy v. Steeplechase Amusement Co :* One who voluntarily participates in a sport accepts the inherent dangers in it so far as they are obvious and necessary to participation. * volenti non fit injuria

Intentional misrepresentation -- Fraud, Deceit

A cause of action for fraud that is framed as a tort but relies on contract obligations will be analyzed under the ''gist of the action doctrine" to determine whether the cause of action lies in tort or contract. Where fraud claims are intertwined with breach of contract claims and the duties allegedly breached are created and grounded in the contract itself the gist of the action is breach of contract. Thus, claims of fraud in the performance of a contract are generally barred under the gist of the action doctrine.

Attractive nuisance

A dangerous place, condition, or object that is particularly attractive to children. A child trespasser who is injured by a dangerous artificial condition need not have been attracted onto the property by the condition. Foreseeability of harm to a child is the true basis of liability and the element of attraction is important only insofar as it indicates that the presence of children should have been anticipated by the landowner.

Express consent

A declaration granting someone permission to behave in a certain way. (Example: "Hi, come on in.") Exception: A consent given as a result of fraud or duress negates consent. (Example: D pretends to be your doctor and performs a physical exam. P's consent is negated and can be sued for battery.)

Special Relationship between Parties

A defendant having a special relationship to the plaintiff (e.g., parent-child, employer-employee, husband-wife, innkeeper-guest, common carrier-passenger, landowner-entrant, custodian-ward) may be liable for failure to act if the plaintiff is in peril. * Bjerke v. Johnson : defendant owned stable and had minor plaintiff reside there fore significant periods of time ; minor had sexual relationship w defendant's boyfriend; duty due to surrogate parent/custodial role * Kline v. 1500 Massachusetts Avenue Apartment Corp. court imposed duty of care on landlord of a large apartment building toward a tenant who had been assaulted in a common hallway of the building landlord was in the best position to take the necessary protective measures

Sudden incapacity or medical emergency

A defendant's sudden incapacity that negates negligence on his part (e.g., an unforeseeable seizure while driving) must be pleaded and proven as an affirmative defense.

Duty of care to a viable fetus

A duty of care is owed to a viable fetus. In cases of failure to diagnose a congenital defect or properly perform a contraceptive procedure, the child may NOT recover for "wrongful life," but the parents may recover damages in a "wrongful birth" or "wrongful pregnancy" action for any additional medical expenses and for pain and suffering from labor; ordinary child-rearing expenses, however, cannot be recovered. (Not available in PA)

Express Preemption

A federal law or regulation containing language explicitly displacing or superseding any contrary state or local laws Riegel v. Medtronic Inc * State tort law can be preempted by a federal regulation that prohibits a state from establishing safety "requirements" different from federal requirements. * State tort law that requires a medical device to be safer—and therefore less effective—than its federal equivalent has the same altering effect on the FDA's regulatory scheme as would a similar state regulation. * The FDA's process of premarket approval of medical devices is a rigorous and all-encompassing process. State law (and even common law) that contradicts the process is subject to preemption. Although state-law claims based on violations of the FDA's requirements (i.e., parallel claims) would not be preempted, those are not the types of claims the Riegels have asserted here.

Implied Preemption

A federal law or regulation that contains language conflicting with state or local laws, that cannot be effectively implemented due to such laws, or that concerns matters in which Congress possesses exclusive constitutional powers (such as treaty-making) or "occupies the field" (like federal employment security and retirement laws). * Wyeth v. Levine : anti-nausea drug causing amputation of arm * absent any clear evidence that the FDA would not have approved a change to Phenergan's label, court does not conclude that it was impossible for Wyeth to comply with both federal and state requirements * FDA may seek to determine whether and when state tort law acts as a help or hindrance to achieving the safe drug-related medical care that Congress sought * Mason v. SmithKline Beecham Corp : took antidepressant and committed suicide two days later * Levine imposed the burden on defendant to establish by clear evidence that the FDA would have disapproved a proposed change in the drug's labeling * In re Fosamax : plaintiff alleged that she suffered a fracture of her fermur due to her taking Fosamax * eight months before she had suffered the fracture the manufacturer sought to change the level to add a warning about such fracture but the FDA rejected the request * cour concluded that the FDA rejection constitutes clear evidence that the FDA would not have approved a label change and granted defendant's motion for judgment as a matter of law.

Firefighters and police officers

A firefighter and police officer can never recover for an injury that is an inherent risk of the job. Example: Firefighter cannot recover for a burn injury from responding to fire in P's house.

Gratuitous rescuers

A gratuitous rescuer who is careless will be liable for the harm they cause in rescuing or attempting to rescue. Maldonado v. Southern Pacific Transportation Co. : plaintiff attempted to board freight train, it jerked and he fell off and under the wheels and suffered serious injuries ; court imposed duty on employees who knew about it

Invitee

A guest who enter D's property to an express or implied invitation of landowner for an economic purpose or other interests and benefits to the landowner, or those who enter properties that are open to the public. Examples: Customer of a business; someone meeting a friend at the airport to pick them up; churchgoers, museum visitors, where no admissions fee is charged.

Duty of health care institutions

A health care institution such as a nursing home, may be directly liable for its own breach of duty to a plaintiff as well as vicariously liable for the acts of its employee. To establish direct corporate liability, the plaintiff must show that a resident-entity relationship existed so as to impose on the entity a duty of care to the resident (e.g., to maintain a safe facility, to hire or oversee competent staff, or to enforce appropriate rules for patient care).

Duty to prevent harm from third-persons

A mental health professional has a limited duty to warn one whom she knows to be in immediate danger of serious bodily injury from her patient's threatened violence. On the other hand, a medical doctor does not have a duty to warn someone of her patient's communicable disease, even when the doctor knows the person is in close contact with her patient. However, a doctor does have a duty to provide care to his patient that he should know is necessary for the protection of a third party.

Compensatory Damages

A monetary award equivalent to the actual value of injuries or damage sustained by the aggrieved party. economic : health care bills, lost wages, etc -> not taxable, future damages discounted to present value -> difficult to calculate for children and unemployed Ps Martinez v. Shapland : lost earnings capacity based on prior employment as a nurse's aide non-economic : for pain and suffering -> to compensate for social loses and impact on welfare Seffert v. Los Angeles Transit Lines : issue of excessive amount as a matter of law and plaintiff using per diem argument to calculate damages

Protection for existing agricultural operations

A nuisance action may not be brought against an agricultural operation (e.g., a hog farm) that has been lawfully operating for at least one year if the condition complained of is part of normal agricultural operations and has existed substantially unchanged for at least one year. If the facilities have been substantially expanded within the past year, the agricultural operation may still avoid liability by showing that a nutrient management plan was approved by the state prior to the expansion.

Truth a defense to interference with business relations

A party will not be liable for tortious interference with contractual relations for giving truthful information to another. (Example: An insurance company administrator was not liable for tortious interference with contractual relations for making a truthful disclosure to a client about the commission of the client's broker, even though the disclosure resulted in the client's termination of the contract with the broker.)

Recovery for emotional distress in strict liability

A plaintiff can recover for emotional distress on a strict liability tort. Hence, a bystander plaintiff who witnesses the injury of a close relative can recover damages for emotional distress when the injured person's underlying cause of action is based on strict liability for defective products.

Private nuisance - Definition

A private nuisance is a substantial, unreasonable interference with another private individual's use or enjoyment of his property.

Negligence against professionals (malpractice actions)

A professional is obligated to exercise the skill and knowledge that is normally possessed by members of that profession, in good standing. Professionals are obligate of average members of their profession. Factually grounded standard. A professional should be "a conformist." He must follow the custom of the professional; custom is conclusive. National standard of care.

Malice requirement for defamation of a public figure

A public figure suing for damages in a defamation action must prove actual malice. Mere hostility or dislike for P does not constitute actual malice. To establish actual malice, P must show "that the utterance was false and that it was made with knowledge of its falsity or with reckless disregard for whether is was false or true."

Products liability based on misrepresentation of fact

A seller will be liable for misrepresentations of facts concerning a product where: (i) The statement was of a material fact concerning quality or uses of goods (mere puffery insufficient), and (ii) The seller intended to induce reliance by the buyer in a particular transaction. Liability is usually based on strict liability but may also arise for intentional or negligent misrepresentations. Justifiable Reliance: Justifiable reliance is required (i.e., the representation was a substantial factor in inducing the purchase). Reliance need not be the victim's (it may be a prior purchaser's). Privity is irrelevant. Causation and Damages: Actual cause is shown by reliance. Proximate cause and damages are the same as for strict 1iability. Defenses: Assumption of risk is not a defense if P is entitled to rely on the representation. Contributory negligence is the same as in strict liability, unless defendant committed intentional misrepresentation.

Parent Child Immunity

A slight majority of states have abolished parent-child immunity; however, these states generally grant parents broad discretion in the parent's exercise of parental authority or supervision. The remaining states retain parent-child immunity but do not apply it in cases of intentional tortious conduct and, in many of these states, in automobile accident cases (at least to the extent of insurance coverage). * standards set out in Goller v. White, 122 N.W.2d 193 (Wis. 1963), which imposes reasonably prudent parent duty but recognizes parental immunity only * where the alleged negligence involves an exercise either of parental control over the child, or * of ordinary parental discretion in providing food, clothing, and other care. * Arizona and California adopts reasonably prudent parent standard with no exceptions * Broadbent v. Broadbent : mother left son unattended in pool and he suffered severe injuries ; Arizona abolishes common law parental immunity and adopts reasonably prudent parent standard * Second Restatement correctly recognizes that parents have broad discretion to make certain decisions, and requires that a parent's conduct be palpably unreasonable in order to impose liability. * New York view : bars suits against parents for negligent supervision of their children * Zikely v. Zikely : unsupervised child fell into hot water tub ; court rejected liability on the grounds that it would mean that parents would be subjected to potential liability if an unsupervised child came in contact with these common daily household hazards

Private Nuisance - Substantial Unreasonable Interference

A substantial interference is one that is offensive, inconvenient, or annoying to an average person in the community.

Vicarious liability - Tavern keeper

A tavern keeper is NOT vicariously liable in the absence of a dramshop act. While several courts have imposed liability on tavernkeepers even in the absence of a Dramshop Act, this liability is based on ordinary negligence principles (the foreseeable risk of serving a minor or obviously intoxicated adult) rather than vicarious liability.

wrongful death action

Action brought by third parties to recover for losses they suffered as a result of the decedent's death * loss to dependant's measure : bases recovery on financial support lost by dependent's dependents * loss to the estate measure does not directly account for the lost support to dependents but instead compensates for the extent to which the dependent's estate was diminished by the premature death * a majority of the states now permits recovery of non pecuniary damages for the loss of relationship by designated survivors in wrongful death cases

Joint and several liability

Allows P to collect total damages from one or from all joint tortfeasors. (Exam tip: Assume unless otherwise stated.)

Contributory negligence

An absolute defense in situations where the plaintiff contributed to his own injuries. D's defense may be overcome if P can show that he acted in a reckless and wanton manner. Brown v. Kendall (burden of proof of contributory negligence of plaintiff on defendant)

Adoption agency's general duty to disclose

An adoption agency has a duty to tell the truth when it volunteers information to prospective parents.

Negligent misrepresentation of an adoption agency

An adoption agency has a duty to use reasonable care to insure that the information the agency communicates is accurate. The agency may also be liable for negligently failing to disclose relevant information. (Note: Although adoption agency is not charged with making a comprehensive investigation into the background of a child it is placing, it must make a good faith effort to obtain the medical history of the child.)

Negligence of a person with authority over another

An affirmative duty that is imposed where D is in a position of authority and control over a third party, knows or should know of that party's misconduct, and does nothing to stop it. Example: D-principal knows that one of the teachers is molesting a student, but does nothing about it. He will be found liable for negligence.

Nuisance

An interference with P's ability to use and enjoy his real estate to an unacceptable or unreasonable degree. Inconsistent land use example: Smoke-belching facility, next to a facility with people with asthma. Spite: D's deliberate shining lights, emitting odors, having loud parties. (Exam tip: Look for an answer regarding (1) the degree of interference or that (2) discusses balancing the interests.) Church bells don't count.

Strict liability for wild animals

An owner of a wild (i.e., nondomestic) animal, even one kept as a pet, will be strictly liable for the damage caused by the animal. Strict liability for wild animals includes liability for the harm that results when a person is attempting to flee from what is perceived to be a dangerous animal.

Products liability based on express warranty

Any affirmation of fact or promise concerning goods that becomes a part of the basis of the bargain creates an express warranty. Plaintiff: Any consumer, user, or bystander can sue. If a buyer sues, the warranty must have been "part of the basis of the bargain." If P is not in privity (e.g., bystander), he need not have relied on the representation as long as someone did. An express warranty may also be made in a lease of goods. Breach: Fault need not be shown to establish breach. P need only show that the product did not live up to its warranty. Causation, Damages, and Defenses: Same as with implied warranties. Disclaimer: A disclaimer will be effective only in the unlikely event that it is consistent with the warranty.

Comparative negligence

Applies where P failed to exercise proper care for his or her safety. P was not reasonably prudent, so the jury must assign the percent of who's more at fault between P and D. Based on this percentage, P's recovery is reduced in proportion to fault. Classic example: The law against jay-walking.

Nominal damages

Appropriate in a suit based on an intentional tort where no actual harm can be shown, such as a noninjurious battery. But it is not permitted under a negligence theory.

Dram Shop Acts

At common law, no liability was imposed on vendors of intoxicating beverages for injuries resulting from the vendee's intoxication, whether the injuries were sustained by the vendee or by a third person as a result of the vendee's conduct. Many states, to avoid this common law rule, have enacted "Dramshop Acts." Such acts usually create a cause of action in favor of any third person injured by the intoxicated vendee. Several courts have imposed liability on tavernkeepers even in the absence of a Dramshop Act. This liability is based on ordinary negligence principles (the foreseeable risk of serving a minor or obviously intoxicated adult) rather than vicarious liability. Reynolds v. Hicks : A commercial host, but not a social host, may be held liable to a third party for injuries sustained as a result of providing alcohol to someone under the age of 21 * Delta Arlines v. Townsend : Georgia * court held that an airline that served passengers until they were intoxicated were was not liable under the dram shop act to a third person injured by the passenger while driving home because, airline did not know whether passenger would be driving * New jersey: Football game * two year old child paralyzed in accident with drunk driver coming from football game ; award was against concessionaire that served him while he was intoxicated

Negligence

Basic Elements: (1) Duty (2) Breach (3) Causation (5) Proximate cause (4) Damages (Exam tip: Outline each element for any and every negligence essay. Must deal with all four, in order, in separate paragraphs.)

No physical harm or actual damage necessary for battery

Battery is a tort where no physical harm need be shown, and no actual damage need be proven. (Not: Actual harm is an element of the prima facie case of negligence, but is not required for most intentional torts.)

No physical harm or actual damage necessary for battery

Battery is a tort where no physical harm need be shown, and no actual damage need be proven. (Note: Actual harm is an element of the prima facie case of negligence, but is not required for most intentional torts.)

Children's liability for intentional torts

Children are liable for their intentional torts when they are capable of forming the requisite intent. For assault, the intent required is to bring about the oftensive or harmful contact.

Negligence claims against kids

Children under 5 owe the world no duty of care, so no negligence claim. Children of 5+ owe the care of a child that is similar in age, experience, and intelligence, acting under similar circumstances. Exception: When a child is engaged in an adult activity, then standard RPP applies. (i.e. operating a motorized vehicle - farm equipment, motorboats, snowmobiles, jet skis, etc)

Extent of liability defenses

Comparative negligence is not applied to strict liability cases in Pennsylvania. Thus, "unknowing" contributory negligence (failure to discover or guard against the existence of the danger) is no defense, while "knowing" contributory negligence (i.e., assumption of risk) is a complete defense.

Outrageous conduct

Conduct is outrageous when it exceeds all bounds of decency tolerated in a civilized society. The means makes this tort actionable. The intentional distress is not enough. Mere insults or curse words are not enough.

Satisfying the duty owed to P's, other than trespassing children

D can: (1) Fix the hazardous condition, or (2) Give a warning (Example: "There is ice on the driveway." Look for warnings.)

Negligent Infliction of Emotional Distress

D does not cause trauma to P's body. Two tier analysis: (1) Was D negligent? (2) If so, then P must prove: (i) PHYSICAL TRAUMA: D almost caused physical trauma to P, or (a) P was placed in the zone of danger. (b) As a result, P suffered physical manifestation. (ii) BYSTANDER: D causes harm to a person not involved in the lawsuit. P is a bystander. (a) P and injured party are close family members (b) P is a contemporaneous witness (iii) PRE-EXISTING BUSINESS RELATIONSHIP: P and D are in a pre-existing business relationship, where it is highly foreseeable that careless performance will cause emotional distress. (Examples: Medical laboratory-medical patient, i.e. Lab negligently gives P a false positive; Customer-funeral parlor, i.e. Funeral home cremates instead of buries relative or displays the wrong body. Nonexample: Drycleaner-customer)

Duty of care owed to an unknown trespasser

D has no duty of care. Unknown trespassers always lose.

Products liability based on representation theories (express warranty and misrepresentation)

D may be liable when a product does not live up to some affirmative representation. The two representation theories are: (1) Express warranty (2) Misrepresentation of fact

Known or anticipated trespasser

D notices or is informed of trespasser on the grounds. Regarding anticipated trespassers, D knows or should reasonably know that they are there. Anticipated trespasser triggered by D's past experience. i.e. D knows that his land is used as a shortcut.

Duty of care owed to a licensee

D only has a duty of care to warn or make safe where: CK (1) the hazard is concealed from the licensee, and (2) the possessor had prior knowledge of the hazard The possessor must protect licensees from all known traps, but no duty to inspect

Physical attributes exception to the RPP standard

D owes reasonable care for a person with that disability. Any physical attribute that is relevant to the problem at hand. the "reasonable person" is considered to have the same physical characteristics as the defendant. However, a person is expected to know his physical handicaps and is under a duty to exercise the care of a person with such knowledge Examples: Blindness, height, etc. If D is blind, and sight is relevant, then D must act as a reasonable prudent person, who is blind. Roberts v. Ramsbottom (defendant suffering stroke; not completely unconscious, therefore driving below required standard and no exculpation)

Merchant requirement (Commercial supplier)

D routinely deals in goods of this type. Casual sellers are not merchants, so no strict liability. Service providers are not merchants of the product that is collateral to the service provided, but commercial lessors are merchants, such as car rental company. Every party in a chain of distribution is a merchant.

Abnormally dangerous activities

D will be held strictly liable if he is engaged in an abnormally dangerous activity that causes a foreseeable to harm to P. The activity must: (1) Create a foreseeable risk of serious harm, even when reasonable care is exercised. (2) Be uncommon in the community where it is taking place. (3)* the injury must be a foreseeable result of the very characteristic that makes the activity abnormally dangerous * * (1) does the activity pose a high risk of harm? (2) is the harm grave? (3) is the risk one that cannot be eliminated by reasonable care? (4) is it inappropriate to the place where it is carried on? (5) is it uncommon? and (6) is it of low social value? Strict liability can be imposed even if not all six questions are answered in the affirmative, but there should be a preponderance of positive answers. * * Hammontree v. Jenner (plaintiff's claim for strict liability fails because California Supreme Court refused to apply doctrine of strict liability to automobile drivers ; only able to recover on negligence claim; epileptic seizure)

Products liability based on intent

D will be liable to anyone injured by an unsafe product if D intended the consequences or knew that they were substantially certain to occur. Products liability action· based on intent are not very common. If intent is present, the most likely tort is battery. Who can sue: Privity is not required, o any injured plaintiff can sue. Damages: Compensatory and punitive Defenses: All available in intentional torts.

Private nuisance

D's action(s) that substantially and unreasonably interferes with the P's use and enjoyment of his land. To determine unreasonableness, the court balances the utility of D's acts versus the gravity of the harm to P. If the utility outweighs P's harm, then there will be no injunction.

Foreseeable Results Caused by Foreseeable Intervening Force

Defendant Liable

Interference with Business Relations - Privileges

Defendant's conduct may be privileged where it is a proper attempt to obtain business for itself or protect its interests. A privilege is more likely to be found if defendant: (i) interfered only with plaintiffs prospective business rather than with existing contracts; (ii) used commercially acceptable means of persuasion rather than illegal or threatening tactics; (iii) is a competitor of plaintiff seeking the same prospective customers; or (iv) has a financial interest in or responsibility for the third party, or is responding to the third party's request for business advice

Pre-existing product defect

The defect must have existed when the product left D's hands. The presumption of no alteration if the product has moved through ordinary channels of distribution. But this presumption can be rebutted.

Employer-employee vicarious liability

Employee will commit the tort, and P will sue the employee and the employer. The employer will be liable if employee was acting within the scope of employment. * 1. criteria : conduct must be about employer's business and duties assigned by the employer rather than personal endeavor * 2. criteria : conduct must occur substantially within hours and ordinary spatial boundaries of employment * 3. criteria : employee's conduct must be motivate by purpose of serving employer's interest Christensen v. Swenson

Hiring party-independent contractor vicarious liability

Employer not vicariously liable for the acts of an independent contractor Exception: A business is vicariously liable if an independent contractor hurts an invitee; Common carrier owes passenger a nondelegable duty

Licensee

Enter land with permission, either express or implied, for own purpose or business. They do not confer economic benefit. Examples: Social guests; anyone that comes to your front door. Carter v. Kinney

Example of statutory limitations of joint and several liability

Example: Plaintiff is awarded a verdict of $100,000. Defendant 1 is found 40% liable for Plaintiff' s injuries and Defendant 2 is found liable for the remaining 60%. Defendant 1 will only be responsible for paying $40,000. Defendant 2 will be responsible for paying $60,000, but he could also be responsible for paying the entire sum of $100,000 under joint and several liability if Defendant 1 is unable to pay because he was found liable for 60% or more of the total liability.

Reasonably prudent person exceptions

Exceptions: (1) D's superior skill or knowledge - ramps up the RPP standard. (2) D's physical attributes - acknowledges any physical difference that D has that is relevant to the problem and adds that to the RPP standard.

tort goals

FDCLA Fairness Deterrence Compensation Loss Spreading Administrative Costs

Firefighter's Rule

Firefighter and police officers may be barred from recovering for injuries caused by the risks inherent in their job because they are deemed to have assumed the risk * 1) assumption of risk * 2) higher compensation in the form of a risk premium for professional rescuers * 3) professional rescuers on private land are licensees and only owed a duty not to avoid wanton or willful injury * 4) professional rescuers who are provided workers' compensation paid for by tax dollars should not be able to sue their employers in tort

Bailment Duties - Duties Owed by Bailor

For a sole benefit of the bailee bailment, the bailor must inform the bailee of known, dangerous defects in the chattel. For a bailment for hire, the bailor must inform the bailee of chattel defects of which he is or should be aware

Private Nuisance - Unreasonable Interference Balancing Test

For an interference to be characterized as unreasonable, the severity of the inflicted injury must outweigh the utility of D's conduct. In balancing these respective interests, courts take into account that every person is entitled to use his own land in a reasonable way, considering: (1) the neighborhood, the values of the respective properties, (2) the cost to eliminate the condition complained of, and (3) the social benefits from allowing the condition to continue.

Proximate cause

Foreseeability or "fairness element:" At the end of the case, P must convince us that liability would be fair. Foreseeable consequences: It is fair to hold D liable for the harm. Unforeseeable consequences: It is unfair to hold D liable for the harm. * The general rule of proximate cause is that the defendant is liable for all harmful results that are the normal incidents of and within the increased risk caused by his acts. In other words, if one of the reasons that make defendant's act negligent is a greater risk of a particular harmful result occurring, and that harmful result does occur, defendant generally is liable. This test is based on foreseeability. scope of risk

To whom is the duty of care owed?

Foreseeable victims only located in foreseeable zone of danger (Cardozo View). A victim is unforeseeable if the harm created is remote or far away from P. duty of care owed to anyone who suffers injuries as a proximate result of his breach of duty to someone (Andrews View, minority) (Example: Helen Palsgraf - The world's only unforeseeable victim. D shoves a guy onto a moving train and dislodges a package carrying explosives, which detonates and causes an explosion that knocks a scale off the wall that falls and hits Helen Palsgraf. Palsgraf was too far away from the initial act to be considered a foreseeable victim.) Rescuer exception: A rescuer is a foreseeable plaintiff as long as the rescue is not reckless; hence, defendant is liable if he negligently puts himself or a third person in peril and plaintiff is injured in attempting a rescue. Cardozo : "danger invites rescue) Wagner v. International Railway Co.

Scope of employment

Generally, intentional torts committed by employees are beyond the scope of employment. Exceptions: (1) Force is a part of the job, i.e. a security guard or bouncer who misuses force (2) Job that generates animosity, i.e. a debt collector, repo man, if that guy hits you, the employer will be held liable (3) Any intentional tort that is motivated by a desire to serve the boss' agenda, i.e. Security guard trying to stamp out shoplifting, so he stops and pats down every third person leaving the store.

Duty to Prevent Harm from Third Persons

Generally, there is no duty to prevent a third person from injuring another. In some situations, however, such an affirmative duty might be imposed. In such cases, it must appear that the defendant had the actual ability and authority to control the third person's action. Thus, for example, bailors may be liable for the acts of their bailees, parents may be liable for the acts of their children, employers may be liable for the acts of their employees, etc. It is generally required for imposition of such a duty that the defendant knows or should know that the third person is likely to commit such acts as would require the exercise of control by the defendant Tarasoff v. Regents of the University of California Reisner v. Regents of the University of California (duty to tell 12 year old girl patient about HIV infection; duty to plaintiff engaging in intimate relationship w her) Pate v. Threikel (duty to children because of likelihood of contracting carcinoma because of genetics) No Duty to Third Parties Hawkins v. Pizarro (hepatitis C) Lester v. Hall (no duty to motorist) Thompson v. County of Alameda (violent juvenile offender; threat to unidentified child in the neighborhood) Bellah v. Greenson (patient of defendant committed suicide; no duty when risk is self-inflicted harm or mere property damage)

Field Preemption

If Congress evidences and clear intent to preempt state law, federal law preempts state law.

Superior skill or knowledge exception to the RPP standard

If D has superior skill or knowledge, then the standard becomes the reasonable prudent person with that same superior skill or knowledge. Skill: A body of information or talent at doing something well. i.e. Race car driver is expected to be able to drive a car like an RPP, as well the add driving techniques that come along with being trained as a racecar driver. Knowledge: Can be a single morsel of fact that could be had by someone who is not so bright. i.e. A person who knows that a particular intersection is dangerous should behave like an RPP, who knows that intersection is dangerous. heightened standard of care for expert, professionals, people with specific knowledge in a certain field, common carriers (extraordinary standard of care) Bethel v. New York City Transit (rejection of extraordinary care for common carriers) Andrews v. United Airlines (did not adequately fulfill duty of extraordinary care by adopting additional safety measures, such as retrofitting overhead bins with cargo nets, as becoming standard custom in industry)

Strict products liability - Defective Product

If the product was: (1) dangerous beyond the expectation of the ordinary consumer ***or (2) a less dangerous alternative or modification was economically feasible, then the supplier has supplied a defective product.

Common carriers and innkeepers

In Pennsylvania, common carriers and innkeepers owe a special duty to their patrons, requiring the exercise of the highest degree of care.

Assumption of the risk - effect on other doctrines

Implied assumption of risk is generally abolished because of Pennsylvania's adoption of the comparative negligence statute. However, the statute specifically retains assumption of risk for downhill skiing and riding off-road vehicles. However, an action against a resort by a spectator injured by a skier is not subject to an assumption of risk defense.

Effect of settlement

In Pennsylvania, a joint tortfeasor entering into a settlement with P is permitted to seek contribution from other tortfeasors whose liability has been extinguished by the settlement. However, the settling tortfeasor cannot recover contribution from a tortfeasor whose liability is not extinguished by the settlement, even if the amount of the settlement turns out to be more than the settling tortfeasor's pro rata share of the judgment would have been.

Fault on defendant's part -- Public official or figure must prove actual malice

In Pennsylvania, a public figure plaintiff (who is required to establish actual malice in a defamation action) may introduce evidence that the defendant republished an allegedly defamatory statement after a complaint had been filed alleging that the statement was defamatory. This evidence may help establish that the defendant acted with malice in the original publication.

Privilege of Arrest - Shoplifting Detentions

In Pennsylvania, an officer, merchant, or merchant's employee must have probable cause to believe that retail theft has occurred or is occurring and that the person detained has committed it. The suspect may be detained in a reasonable manner for a reasonable time either on or off the premises in order to: (i) require the suspect to identify himself and afford time to verify the identification; (ii) determine whether the suspect has unpurchased merchandise in his possession; or (iii) inform a peace officer or institute criminal proceedings against the suspect. (Note: Whether probable cause existed is a question of law for the court to decide.)

Immunity of public officials for false arrest

In Pennsylvania, any public official acting pursuant to a court directive is immune from a tort action for false arrest. However, a victim may still have a claim for violation of federal constitutional rights.

Vicarious liability of tavern-keeper

In Pennsylvania, it is unlawful for any liquor licensee "to sell, furnish, or give" any alcoholic beverage, to minors or visibly intoxicated persons. It is not unlawful to supply alcohol to insane persons or "habitual drunkards or persons of known intemperate habits," unless they are minors or visibly intoxicated. Adult social hosts are liable only for "knowingly" serving alcohol to a minor who subsequently injures himself or a third party; no social host liability is recognized for serving alcohol to an intoxicated adult. (Note that it is not enough that a social host "should have known" that alcohol was being served to a minor; there must be actual knowledge by the host.)

Statutory limitations of joint and several liability

In Pennsylvania, joint and several liability has been abolished except against defendants who are found liable for 60% or more of the total liability. Joint and several liability is also retained for cases involving: (i) fraud, (ii) intentional torts, (iii) Dram Shop Act violations (for serving visibly intoxicated persons), and (iv) violations of Hazardous Sites Cleanup Act. In all cases where joint and several liability is abolished, the trier of fact will apportion liability to all defendants and nonparties released by the plaintiff. Each defendant is liable only for that portion of the total verdict that corresponds to the amount of that defendant's liability.

Professional's duty to disclose risks of treatment

In Pennsylvania, the failure to disclose the risks of a surgical procedure creates an action in battery, not negligence.

Damage to plaintiff's reputation in a slander suit

In Pennsylvania, there are four recognized categories of slander per se for which general damages are presumed: 1. Statements imputing shortcomings incompatible with P's business, trade, profession, or office 2. Claims that P has a loathsome disease 3. Words imputing an indictable criminal offense; and 4. Allegations of serious sexual misconduct

Reasonable prudent person in emergency situations

In Pennsylvania, this modified standard of care (acting as a reasonable person would under the same emergency) is known as the Sudden Emergency Doctrine.

Bailment Duties

In a bailment relationship, the bailor transfers to the bailee possession of the chattel but not the title (e.g., bail or loans her car to bailee).

Prima facie case for defamation

In addition to proving the elements of defamation, Pennsylvania also requires a showing of at least negligence as to truth or falsity in ALL defamation actions, even if the statement does not involve a matter of public concern.

Falsity in defamation cases

In cases not involving public figures or matters of public concern, the defendant has the burden of proving truth as a defense in Pennsylvania.

Loss of consortium*

In most jurisdictions, both husbands and wives may recover damages for loss of their spouse's consortium or services because of injuries to the spouse from defendant's tortious conduct, whether intentional, negligent, or based on strict liability. Consortium claims are derivative, meaning any defenses that would apply in the primary injured party litigation would apply to the secondary, non-injured party's claim. Thus, any defense that could be raised against the injured family member, e.g., her own contributory negligence, can also be raised in the derivative action for interference with family relationships. Meant to allow recovery for: (1) Loss of household services (2) Loss of society (companionship) (3) Loss of sex Each must be proven, not presumed. * Elden v. Sheldon : claims for emotional distress from witnessing death of plaintiff's partner ; court rejected claim because * state's interest in promoting marriage * administrative expense and difficulty in determining if the relationship was stable and significant * limit the scope of liability to a controllable degree * Dunphy v. Gregor rejected Elden approach : woman witnessed death of her fiancée * Ossenfort v. Associated Milk Producers : court upheld recovery for wife whose husband suffered severe brain damage * some courts have extended consortium action to cover nonphysical injuries to the first spouse

Who can sue in implied warranties of merchantability and fitness claims?

Pennsylvania has adopted the narrow version of the horizontal privity requirement, extending implied warranty protection to a buyer's family, household, and guests who suffer personal injury.

Consent as an affirmative defense

Key question: Did P have legal capacity? Only a person with legal capacity can give valid consent. (i.e. drunks, children, developmentally disabled people) But children and developmentally disabled people can give consent commensurate with their level of capacity. (i.e. 2 eleven-year-olds can agree to wrestle with each other; a high functioning autistic person may be able to consent to a variety of interferences - relate to their ability to understand.

Defective product

Key question: Is the product defective? (1) Manufacturing defect: (2) Design defect: (3) Information defect: (Exam tip: The bar often stipulates this.)

Duty

Key questions: (1) To whom is it owed: Foreseeable victims only. Unforeseeable victims always lose. Think Palsgraf v. Long Island Railroad. However, the rescuer exception allows remote victims to succeed. (2) What level of care does D owe: The level of care exercised by a reasonably prudent person, acting under similar circumstances. This is an objective standard of what a super responsible person would do that everyone held to, even those with lesser mental capabilities; not duty imposed to take precautions against events that cannot reasonably be foreseen

Duty of care owed to a known or anticipated trespasser

Landowner under a duty to exercise ordinary care to warn the trespasser of, or to make safe, artificial conditions known to the landowner that involve a risk of death or serious bodily harm and that the trespasser is unlikely to discover. There is no duty owed for natural conditions and less dangerous artificial conditions. The owner or occupier also has a duty to exercise reasonable care in the exercise of "active operations" on the property. Four part test: DACK (1) Only if the condition is artificial, constructed by human beings (does not include naturally icy conditions, tree branches (2) Hazard must be highly dangerous - capable of maiming or killing P (3) Danger must be concealed or hidden. Open and obvious conditions require no duties (4) D must have had prior knowledge of the hazard

Comparative Negligence Effect on other doctrines

Last Clear Chance is not used in most comparative negligence jurisdictions implied assumption of risk defense often abolished

Reasonable inspection to fulfill the duty owed to an invitee

Limited by time, economics. Example: Slip and fall on cooking oil, in a supermarket. It is concealed because it's clear and odorless. If there is evidence of knowledge, then P wins. If not, then the question turns on how long the oil has been there.

Foreseeable use of the defective product

May be a foreseeable appropriate use or a foreseeable misuse. Examples of foreseeable misuses: Using a chair as a stepladder Driving a car at 100 miles per hour

Medical professional's duty to disclose

Medical professionals have a duty to disclose material risks, which are risks that a reasonable patient would want to know. (Objective standard) If the doctor does not disclose, then there is a breach of medical standards of care and professional responsibility and the patient may recover. Nine Cats Have Plenty Rats * medical professional is liable for failing to obtain informed consent if 5 requirements are met : * 1. nondisclosure * 2. causation * 3. harm * 4. plaintiff would have forgone risk if known * 5. a reasonable person would have foregone the procedure if risk was known (Matthies v. Mastromonaco) (Note: Under the majority rule, negligence is the theory that will normally apply on the MBE, but not always). causation: if adequate disclosure could reasonably be expected to have caused that person to decline the treatment because of the relevation of the kind of risk and danger that resulted in harm, causation is shown, but otherwise not. patient's informed consent to treatment provides no protection from the threat of malpractice liability; still standard of reasonable care is defined by custom

Products liability based on implied warranties of merchantability and fitness for a particular purpose

Merchantability: Refers to whether the goods are of average acceptable quality and are generally if it for the ordinary purpose for which the goods are used; and (ii) Fitness for a particular purpose: Arises when the seller knows or has reason to know the particular purpose for which the goods are required and that the buyer is relying on the seller's skill and judgment in selecting the goods. Plaintiff: Buyer, family, household, and guests can sue for personal injuries. These warranties also generally apply to a lease of goods Breach: If the product fails to live up to either of the above standards, the warranty is breached and the defendant will be liable. No proof of fault required. Causation: Same as in other negligence cases. Damages: Personal injury and property damages, and purely economic loss, are recoverable. Defenses: Include assumption of risk (using a product while knowing of breach of warranty) and contributory negligence to the same extent as in strict liability cases. Failure to give notice of breach is a defense under the UCC (even in personal injury cases). Disclaimers: Rejected for personal injury cases, but accepted for economic injury.

RPP in an emergency situation

Modified standard of care. Was D acting as a reasonable person would under the same emergency?

Punitive Damages

Monetary damages that may be awarded to a plaintiff to punish the defendant and deter similar conduct in the future. if the defendant's conduct was "wanton and willful," reckless, or malicious, most jurisdictions permit recovery of punitive damages. -> subjective state of culpability of defendant ex: compensatory damages by itself do not appropriately deter the action (Bed bugs case, J. Posner)

Attractive nuisance elements

Most courts impose on a landowner the duty to exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by dangerous conditions on his property. This is typically an artificial condition but occasionally a natural condition may suffice. To establish the doctrine's applicability, a plaintiff must show: (i) a dangerous condition on the land that the owner is or should be aware of, (ii) the owner knows or should know children frequent the vicinity of the condition, (iii) the condition is likely to cause injury (i.e., it is dangerous because of the child's inability to appreciate the risk), and (iv) the expense of remedying the situation is slight compared with the magnitude of the risk.

Trespassing children

Most courts impose upon a landowner the duty to exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by artificial conditions on his property. Under the general rule, to assess this special duty upon the owner or occupier of land with regard to children on his property, the plaintiff must show the following: Dope KFC Kind Neighbor Brings Record D KC KD NR B RC (i) There is a dangerous condition present on the land of which the owner is or should be aware; (ii) The owner knows or should know that young persons frequent the vicinity of this dangerous condition; (iii) The owner knows or has reason to know and realizes or should realize that the condition involves an unreasonable risk of death or serious boldly harm to such children (iv) The children because of their youth do not discover the condition or realize the risk involved (v) The expense of remedying the situation is slight compared with the magnitude of the risk; burden less than risk (vi) owner fails to take reasonable care to eliminate danger or otherwise protect the children

Damages for IIED

Must be proven, but physical distress is not required

Owner of a car - driver of a car vicarious liability

No vicarious liability, unless D-driver is doing an errand for D-owner. They also have a principal-agent relationship.

Nominal damages

Nominal damages are only appropriate in a suit based on an intentional tort where no actual harm can be shown.

Scientifically Unknowable Risks

Occasionally, totally unpredictable hazards of a product do not become apparent until after the product has been marketed. This situation arises most frequently with new drugs that yield unpredictable side effects. Even though these drugs might be dangerous beyond consumer expectations, courts have generally refused to find the drugs unreasonably dangerous where it was impossible to anticipate the problem and make the product safer or provide warnings.

Transferred intent

Occurs when D intends to harm one individual but unintentionally harms a second person instead, or when D intends to commit one tort but instead commits a different tort. Applies to: (1) Assault (2) Battery (3) False imprisonment (4) Trespass to chattels (5) Trespass to land

Premises liability

Occurs when someone encounters a hazardous condition on a piece of real estate. Four standards of care: (1) Unknown trespasser (2) Known or anticipated trespasser (3) Licensee (4) Invitee

Offensive contact

Offensive means would not be permitted by a normal person. Example: A tap on the shoulder would be permitted by a normal person, but a stroke of the hair by a man to a woman. (Could be construed as a grope. i.e. sexual harassment. Even without sexual harassment, petting is a battery.)

Duty to retreat

Pennsylvania follows the modern trend, imposing a duty to retreat before using deadly force unless the actor is (i) in his own home or (ii) in his place of work and the assailant is not a co-worker.

Affirmative Duty to Act Assumption of Duty to Act by Acting

One who gratuitously acts for the benefit of another, although under no duty to do so in the first instance, is then under a duty to act like an ordinary, prudent, reasonable person and continue the assistance. Example: Defendant, under no duty to aid Plaintiff who has been injured, picks her up and carries her into a room. He then leaves her there unattended for seven hours and Plaintiff's condition is worsened. Defendant, having acted, may be considered to have breached his duty to act reasonably. Farwell v. Keaton

Peril Due to defendant's conduct

One whose conduct (whether negligent or non negligent) places another in a position of peril is under a duty to use reasonable care to aid or assist that person. ; ordinary duty of reasonable care when creating risk of harm when actor's risk creating conduct has ceased but the risk to the there person continues Maldonado v. Southern Pacific Transportation Co. : plaintiff attempted to board freight train, it jerked and he fell off and under the wheels and suffered serious injuries ; court imposed duty on employees who knew about it Menu v. Minor : suit against taxi company after picking up plaintiff from accident scene (car blocked lane of highway) ; transporting the driver away from the scene did not change the existing risk; taxi driver not liable because he did not voluntary assume a duty to plaintiffs or created a peril or changed the nature of an existing risk * Tresemer v. Barke : plaintiff was injured from use of Dalkon Shield intrauterine device ; did not consult defendant physician and was unaware of the risk for some years and therefore suffered injury from the delay ; court held that defendant was liable for failure to warn her

Battery: Lack of Informed Consent to Surgical Procedures

Operating on a patient without the patient's informed consent is characterized as a battery in Pennsylvania. To obtain an "informed consent'' to a surgical procedure, a surgeon must provide a description of the procedure and disclose risks and alternatives that a reasonable person would consider material to the decision of whether to undergo that medical treatment.

The well settled quartet of proximate cause

Outcomes foreseeable, D should be liable where: RAP MDR (1) Intervening medical negligence: D is liable for P's subsequent harm due to a medical professional's negligent care. (2) Intervening negligent rescue: D is liable for P's subsequent harm due to a good samaritan's negligent rescue. (3) Intervening protection or reaction forces: D is liable for P's subsequent harm due to a third party's response to D's negligent triggering of panic, chaos, or harm. (4) Subsequent disease or accident: D is liable for P's subsequent harm due to the initial harm D caused to P.

Survival and wrongful death

Pennsylvania has adopted both a survival act and a wrongful death act. Though separate and distinct, these actions must be combined in one suit to avoid a duplicate recovery.

"Acting in concert"

P must prove that multiple defendants were working together against him.

When can a P borrow a criminal statute to prove negligence?

P must satisfy three elements: * the law must set forth a mandatory and specific command ; negligence per se will not apply if the law sets forth general or abstract rules * the victim must be within the class of persons the statute was designed to protect * law must have been designed to prevent the type of accident that caused the victim's injury Class of person, class of risk test = Negligence per se. If the statute does not apply, then P goes back to the RPP standard. Martin v. Herzog (negligence per se = contributory negligence) * Gorris v. Scott: The damage was not contemplated by the statuteà Scope exception b/c law deals with protecting sheep from contagious diseases, not from washing overboard * DeHaen v. Rockwood Sprinkler Co. of Mass: Statute is about keeping stuff from falling downà Risk of radiator falling is within the scope of the statute so it constitutes negligence per se

Reckless and wanton acts

P's contributory negligence may be overcome if D's acts were reckless and wanton.

Contact with the plaintiff's person

P's person could be anything P is touching, holding, or carrying. Examples: (1) A person grabs someone's purse that she is carrying. It is a battery. (2) Slapping a person's horse, while the person is riding the horse.

Modified or partial comparative

P's recovery is based on whether he or she is less than 50% at fault. If P under 50%, then his recovery is reduced. If P over 50% at fault, then he is completely barred from recovery.

Pure comparative fault

P's recovery is strictly based on numbers, or percentage of fault. (Exam tip: May be assumed, unless otherwise stated in the question.)

Six special standards of care

PLACES" Professionals Landowners - trepasser, licensee, invitee Affirmative duty to act Children Emotional distress (duty not to neg inflict it) Statutes (1) Negligence claims against kids. (2) Negligence against professionals (malpractice actions) (3) Premises liability - Trespassers, Licensees, Invitees (4) Statutory Standard of Care (5) Duties to Act Affirmatively (6) Negligent Infliction of Emotional Distress

Parent-child vicarious liability

Parents are not vicariously liable for the torts of children. P must sue the kid.

Vicarious liability of parent for a child

Parents may he liable for up to $2,500 in damages, for the tortious, acts of their minor children.

Wanton and willful conduct

Pennsylvania does not apply comparative negligence principles to wanton or willful misconduct because of the intent aspects of that conduct.

Defenses in a strict liability claim

Pennsylvania does not apply its comparative negligence rules to strict liability actions. Thus, the defenses of assumption of the risk, unforeseeable misuse of the product, highly reckless conduct, and product alteration/substantial change are complete defenses. A D asserting highly reckless conduct must prove that P's conduct was so reckless that it was the sole or superseding cause of the injuries. On the other hand, failure to discover or guard against the existence of a defect (i.e. ordinary negligence) is no defense. Hence, evidence of a P's ordinary negligence may not be admitted in a strict product liability action unless it is shown that an accident was solely the result of the user's conduct and not related to the defect in the product. In addition, a government contractor can raise a government immunity defense for a product prepared to government specifications.

Duty to preserve evidence

Pennsylvania does not recognize a cause of action for the tort of negligent spoliation of evidence.

Duty owed to a trespasser

Pennsylvania follows the general rule of no duty owed to undiscovered trespassers. However, Pennsylvania law also imposes a duty to refrain from wanton conduct (conduct in reckless disregard of a risk so great as to make the harm highly probable) or willful conduct (an intentional act of unreasonable character or risk known or so obvious that the actor must be aware of it).

Defense of others

Pennsylvania follows the majority approach, permitting the use of force to aid another person when the actor reasonably believes the aided person would have the right of self-defense.

Damage to plaintiff's reputation in a libel suit

Pennsylvania follows the majority rule that P does not need to prove special damages to recover for libel.

Nature of damages recoverable in a strict tort liability claim

Pennsylvania follows the majority view denying recovery under strict liability where the sole claim is for economic loss. But note that the fact that the measure of a plaintiff's damages is in economic terms does not transform the nature of the injury into a strictly economic loss. (Example: The destruction of a house and the personal property within it from a fire caused by an allegedly defective product is physical harm, not economic, and damages are recoverable in either strict liability or negligence as well as breach of warranty.)

Release

Pennsylvania follows the majority view on releases: A release of one tortfeasor does not discharge the other tortfeasors unless expressly provided in the release agreement.

Damages

Personal Injury: Plaintiff is to be compensated for all his damages (past, present, and prospective), both special and general. This includes fair and adequate compensation for economic damages, such as medical expenses and lost earnings, and noneconomic damages, such as pain and suffering. Plaintiff is also entitled to compensation for impaired future earning capacity, discounted to present value so as to avoid an excess award; i.e., plaintiff receives an amount that, if securely invested, would produce the income that the jury wishes him to have.

Intrusion on Plaintiff's Affairs or Seclusion

Personal injury claimants have a diminished expectation of privacy; hence, they can expect reasonable inquiry and investigation into their claim, including surveillance while in a public place.

Vicarious liability

Predicated on relationships 1. Employer-employee 2. Hiring party - independent contractor 3. Owner of a car - driver of a car, and 4. Parent - child

Assumption of the risk

Plaintiff may be denied recovery if she assumed the risk of any damage caused by defendant's act. P must have (i) known of the risk and (ii) voluntarily proceeded in the face of the risk.

Duty to protect owed by business owner to costumer

Posecai v. Wal-Mart Stores, Inc : woman robbed in parking lot after shopping in the store ; no security guard posted there. balancing test, which considers the interests of both business owners and customers. The greater the foreseeability and gravity of harm, the more security measures the rule will require. By measuring the foreseeability and gravity of harm against the burden imposed on the defendant, the rule most fairly determines whether harm is truly foreseeable under certain circumstances. other tests : specific harm rule, prior similar incidents test, totality of the circumstances

Interference with Business Relations

Prima facie case: (i) existence of a valid contractual relationship between plaintiff and a third party or valid business expectancy of plaintiff; (ii) defendant's knowledge of the relationship or expectancy; (iii) intentional interference by defendant inducing a breach or termination of the relationship or expectancy ; and (iv) damages.

Respondeat superior

Principal liable for the NEGLIGENT acts of his agent but can also be liable for agent's intentional acts, if force is inherent in the job.

Manufacturing defect

Product differs from all others that came off the same assembly line, which makes it more dangerous than consumers would expect. The product "departs from its intended design" -- D's safety precautions are irrelevant.

Strict liability for products

Products include household and industrial products. When P is hurt by a product, P often has multiple causes of action. When the question specifies the theory, use that theory to answer the question.

Damages required

Proof of damages are required for (1) IIED (2) Trespass to chattels, and (3) Conversion

Speech and debate clause

Provides immunity from defamation liability, but only for communications in one of the houses of Congress.

Defenses to defamation -- absolute privilege

The absolute privilege for judicial proceedings applies to filing a pleading in court but not providing a copy to the media.

Last clear chance doctrine

Rebuttal to contributory negligence defense, where P shows that D had the "last clear chance" to avoid the harm but didn't.

Reckless disregard in defamation of a public figure claim

Reckless disregard is not measured by whether a reasonable person would have investigated before publishing. There must be sufficient evidence to permit the conclusion that D in fact entertained serious doubts as to the truth of the communication when it was published.

Wrongful pregnancy

Recognized as a basis of negligence action in most states (not PA). Applies where a doctor: (1) owed a duty of care to a mother to properly perform a contraceptive procedure (2) breached that duty by improperly performing the procedure and failing to inform the mother that it was ineffective (3) the breach was the actual and proximate cause of the wife's pregnancy because it would not have happened but for the doctor's negligence, and it was foreseeable that she would become pregnant after being led to believe that procedure was successful (4) the parents may recover for (a) any additional medical expenses and (b) for pain and suffering from labor; but ordinary child-rearing expenses CANNOT be recovered.

Res ipsa loquitor instrumentality requirements

Res ipsa Ioquitur does not apply when more than one party may have been in control of the instrumentality causing injury. It requires that the instrumentality causing the injury be in the defendant's sole control.

Res ipsa loquitur instrumentality requirements

Res ispa loquitor does not apply when more than one party may have been in control of the instrumentality causing injury, except in the case of a surgical team. It requires that the instrumentality causing the injury be in D's sole control.

Replacing invitee and licensee with reasonable care under the circumstances

Rowland v. Christian Heins v. Wehster County * Close to half of the states have abolished the distinction between licensees and invitees and simply apply a reasonable person standard to dangerous conditions on the land. A few of these states have gone even further and abolished the trespasser distinction as well.

Allergies

Some products affect different users differently—the problem of allergic reaction. If the allergic group is significant in number, the product is defective unless adequate warnings are conveyed. The modern trend requires such warnings whenever the manufacturer knows that there is a danger of allergic reaction, even though the number affected may be very small.

Misuse of Products

Some products may be safe if used as intended, but may involve serious dangers if used in other ways. Courts have required suppliers to anticipate reasonably foreseeable uses even if they are "misuses" of the product.

Public Policy Bases for No Duty

Strauss v. Belle Realty Co. : Courts must fix an orbit of duty which limits liability to manageable levels, even where this may exclude parties who would have been able to recover under traditional tort principles; duty requires privity , a contractual relationship; * potential burden of defendant ; monopoly for supply of electricity (bankruptcy would bring other difficulties); public utilities heavily regulated > loss spreading ; will affect the level of services ConEd provides and hurt public interest Moch Co. v. Rensselaer Water Co. :* defendants failed to provide a benefit ; only contractually obligated to the city to provide water, not to the plaintiff * Yost v. Wabash College : court rejecting claim by plaintiff, a fraternity pledge injured in a hazing incident, that his college owed him a duty of care based on its policy against fraternity hazing in part because the court believed that "colleges and universities should be encouraged, not disincentivized, to undertake robust programs to discourage hazing and substance abuse" * MacGregor v. Walker : court rejecting claim by abuse victim that she was owed a duty by defendant church pursuant to its provision of a Help Line as "a service intended to assist its ecclesiastical leaders in counseling abuse victims" because to "hold that the creation of such policies and programs gives rise to a duty under tort law would discourage organizations from creating these beneficial programs"

No strict liability for domestic animals

Strict liability does not apply in an action to recover for a dog bite, even if the owner of the dog had knowledge of the dog's previous biting of another person.

Substantial certainty

Substitute for intent. D will be liable for an intentional tort where he is substantially certain that an outcome will result.

False Imprisonment timing and damages requirement

That confinement is only for a short period of time is immaterial, as is an apparent absence of actual damages.

Wrongful civil proceedings

The "Dragonetti" statute makes both plaintiffs and their attorneys liable for wrongfully procuring, initiating, or continuing civil proceedings in "a grossly negligent manner or without probable cause." Accordingly, to succeed in Pennsylvania on a cause of action for wrongful use of civil proceedings, the plaintiff (the defendant in the original action) must prove that: (i) The underlying proceedings were terminated in her favor (ii) The defendant here (the plaintiff in the original action) initiated those proceedings without probable cause or acted in a grossly negligent manner (iii) The defendant here filed the original action for an improper purpose; and (iv) The plaintiff here sustained damages as a result. Attorneys have probable cause to bring an action when they reasonably believe in the facts on which the action is based and in the legal theory under which it is brought. Laypersons have probable cause to bring an action when they reasonably believe that the claim may be valid in reliance on the advice of counsel, sought in good faith, and after full disclosure of all relevant facts within their know ledge.

Compare--Proof of Harm in Legal Negligence Cases

The "increased risk of harm" doctrine does not apply to attorney malpractice. To prove an actual injury, a plaintiff must show that she would have won the underlying action absent the attorney's alleged negligence.

Nature of Action for Family Relationship Interference

The action for interference with family relationships is derivative. Recovery in the derivative action depends on the potential success of the injured family member's own action. Thus, any defense that could be raised against the injured family member, e.g., her own contributory negligence, can also be raised in the derivative action for interference with family relationships. Furthermore, a defense against a family member seeking such a derivative recovery may also be raised in this action. Jacoby v. Brinckerhoff: plaintiff husband sued defendant psychiatrist for treatment of his wife that hurt the marriage and caused the children to lose maternal care : wife did not cooperate ; court decided that consortium claim was a derivative action in the sense that the consortium claim could succeed only if the direct victim's claims succeeded

Bailment Duties - Duties Owed by Bailee

The bailee's standard of care depends on who benefits from the bailment: (i) for a sole benefit of the bailor bailment, there is a low standard of care; (ii) for a sole benefit of the bailee bailment, there is a high standard of care; and (iii) for a mutual benefit bailment (typically a bailment for hire), there is the ordinary care standard. The modern trend applies a duty of ordinary care under the circumstances, whereby the type of bailment is just one factor taken into account.

Preemption Doctrine

The concept that federal law takes precedence over state or local law.

Negligent infliction of emotional distress - misdiagnosis exception

The defendant may be liable for directly causing the plaintiff severe emotional distress that leads to physical symptoms when a duty arises from the relationship between the plaintiff and the defendant, such that the defendant's negligence has great potential to cause emotional distress ( e.g., doctor's misdiagnosis that patient has terminal illness).

Damages

The eggshell skull doctrine: Once P establishes the other elements, P recovers for all harm suffered, even if surprisingly great in scope. "You take your plaintiff as you find your plaintiff."

Intent

The first element of intentional torts is "intent," which means D desired the outcome or knew that it was a consequence of his actions. Always look for: (1) An act (2) Intent, and (3) Causation

Approach negligence claims

The higher up the ladder of elements, the stronger the answer choice will be for D. (Cut off the liability early) The lower down the ladder of elements, the stronger the answer choice will be for P. (Get far down the ladder)

Employer-Independent Contractor Nondelegable Duty Exception

The general rule is that a principal will not be liable for tortious acts of its agent if the agent is an independent contractor. However, a broad exception will impose liability on the principal if the duty is nondelegable because of public policy considerations. As long as the employer is not subject to a nondelegable duty, it will not be liable for the negligence of an independent contractor in carrying out that duty.

What is the level of care owed?

The level of care exercised by a reasonably prudent person, acting under similar circumstances.

Learned Intermediary Rule

The manufacturer of a prescription drug typically satisfies its duty to warn the consumer by informing the prescribing physician of problems with the drug rather than informing the patient taking the drug.

property damages

The measure of damages for property damage is the reasonable cost of repair, or, if the property has been almost or completely destroyed, its fair market value at the time of the accident. Courts generally do not permit recovery of emotional distress damages for negligent harm to property.

Products liability based on negligence

The prima facie case is the same as in any negligence case. Plaintiff 1nust show (i) duty, (ii) breach, (iii) actual and proxin1ate cause, and (iv) dan1ages. Duty: Any foreseeable P, including users, consumers, and bystanders Defendant: Any product supplier, but usually commercial suppliers Breach: Negligence leading to the supplying of a defective product. Proof of Negligence: Same as other negligence cases. P may invoke res ipsa loquitur in a manufacturing defect case. In a design defect case, the P must show that the D knew or should have known of the danger of the product as designed. Causation: An intermediary's (e.g. wholesaler's) negligent failure to discover a defect does not supersede the original manufacturer's negligence unless the intermediary's conduct exceeds ordinary foreseeable negligence. (Dealer won't be liable for not knowing about manufacturer's defect) Damages: Physical or property-based only (No purely economic damages) Defenses: Same as other negligence actions.

Products liability based on strict liability

The prima facie case: (i) a commercial supplier of a product; (ii) producing or selling a defective product; (iii) actual and proximate cause; and (iv) damages. For liability to attach, the product must reach plaintiff without substantial alteration. Privity: Users, consumers, bystanders Defendant: Commercial suppliers only. (No strict liability for services involving products) Production or sale of a defective product: P must show that the product is defective beyond the expectations of the ordinary customer. Retailers may be liable even if no opportunity to inspect. Causation: For actual cause, P must show that the defect existed when the product left D's control. If the defect is difficult to trace, P may be able to rely on an inference that this type of product failure ordinarily would occur only as a result of a product defect. Proximate cause is the same as in negligence cases. Damages: Physical or property-based only (No purely economic damages) Defenses: In contributory negligence states, ordinary contributory negligence is no defense where P merely failed to discover the defect or guard against its existence, or where P misuse was reasonably foreseeable. Assumption of the risk is a defense. In most comparative negligence states, courts will apply their comparative negligence rules. Disclaimers: Disclaimers are irrelevant in negligence or strict liability case if personal injury or property damages occur.

Design defect

The risks of the product's design outweigh the utility of the product to the degree that a reasonable person wouldn't market it. foreseeable risk of harm could have been reduced or avoided by adoption of a reasonable alternative design P must offer an alternative that is: (1) safer, (2) more economically practical, and (3) more practical in a utilitarian sense.

Theories of products liability

There are five theories of liability that plaintiff may use: (i) intent, (ii) negligence, (iii) strict liability, (iv) implied warranties of merchantability and fitness for a particular purpose, and (v) representation theories (express warranty and misrepresentation) (Tip: If the question does not indicate what theory of liability plaintiff is using, apply a strict liability theory because that is the easiest to prove.)

Multiple causes

There are two or more negligent, defendents, who act independently to harm P, having a combined effect. Use substantial factor test: Ask whether each breach was a substantial contributing factor to the harm. If either was capable of causing the harm by itself, then each would be a factual cause and both D's are liable. * "substantial factor" test (multiple causes); any one of the forces would have been sufficient by itself to cause the harm but impossible to tell which one ; then treated as the actual cause of the injury) * Anderson v. Minneapolis: Two fires meet and burn a farm. Either fire alone would have done the damage without the other. Under the "but for" test, neither was the "cause," since, looking at either fire alone, the loss would have occurred without it. Rather than reach this result, the courts consider as causes all those things that were a "substantial factor" in causing injury; holding both equally liable

Duties to act affirmatively

There is no duty to act affirmatively, meaning there is no duty to take a course of action. No duty to rescue. **Exam tip: No matter how egregious the facts are, there is no duty to rescue. There is no liability.

Severe emotional distress

There is no required way to prove severe emotional distress. The act does not necessarily need to cause physical distress, cause P to see a doctor, be on meds. (Exam Tip: Look out for a negation of this element in the question. The bar will describe D's conduct, then say that P was "mildly annoyed," "briefly irritated," "mildly chagrined," which negates the "severe emotional distress" prong.)

Duty of care owed to a invitee

This general duty includes the duties owed to licensees (to warn of or make safe nonobvious, dangerous conditions known to the landowner and to use ordinary care in active operations on the property) plus a duty to make reasonable inspections to discover dangerous conditions and, thereafter, make them safe. The requirement "to make safe" is usually satisfied with a reasonable warning. A duty to warn usually does not exists where the dangerous condition is so obvious that the invitee should reasonably have been aware of it

Directed verdict

To avoid a directed verdict in D's favor, P must show duty and breach. Res ipsa establishes duty and breach, so P can avoid a directed verdict for D. Negligence per se also establishes duty and breach. (Exam tip: P's motion for directed verdict will almost always be denied because there is almost always a triable issue. Both motions denied is the most common answer.)

Proving a defect in a products liability claim

To prove an actionable design defect in Pennsylvania, the plaintiff must show that either (i) the product had a dangerous condition that was unknowable and unacceptable to the ordinary consumer, or (ii) a reasonable person would conclude that the risk of harm from the product outweighed the burden or costs of taking precautions.

False imprisonment - Awareness of confinement

Tort victims in Pennsylvania must be either aware of the confinement or be harmed by it.

IIED v. NIED

Turns on whether D acted on purpose (IIED) or carelessly (NIED).

Exceptions to comparative contribution

Two indemnity situations (full contribution): (1) Vicarious liability: If a party has been held vicariously liable, then he can get indemnified against the active tortfeasor and be reimbursed for the full amount. (2) Products liability: A retailer or wholesaler can get indemnity from the manufacturer.

Contribution

Under Pennsylvania law, in cases involving joint tortfeasors, the apportionment of contribution among joint tortfeasors is based on the comparative fault of each tortfeasor.

IIED causation in bystander cases

When D intentionally causes physical harm to a third person and P suffers severe emotional distress because of it, P may recover by showing either the prima facie case elements of emotional distress or that (i) she was present when the injury occurred, (ii) she is a close relative of the injured person, and (iii) the defendant knew facts (i) and (ii).

Avoidable consequences doctrine

Where a plaintiff is held legally responsible for any further injury or harm that, through his actions, he could have reasonably avoided after being injured by the defendant's negligence. failure to mitigate damages seatbelt use

Actual cause (Causation in fact) -- Increased risk of harm in medical negligence cases

When a physician's negligence is a substantial factor in causing a patient's injury, P does not have to prove to a certainty that proper care would have, as a medical fact, prevented the injury. If there was any substantial possibility of avoiding the injury, and the doctor has destroyed that possibility, he is liable. A causal connection between the injury suffered and the physician's failure to exercise reasonable care may be proved by evidence that the risk of incurring those injuries was increased by the doctor's negligent conduct.

Breach

Where P identifies specific wrongful conduct by D and explains why the conduct is wrongful. (1) Factual showing: Can be an act or omission. P will allege that the breach was that D [fill in facts]. (2) Argument: P will allege that this was unreasonable because [give reasons]. (i.e. Drinking impairs your ability to drive.)

Rescuers

While a rescuer is a foreseeable plaintiff, the rescuer will not be able to recover for injuries that are attributable to a superseding cause that cuts off the tortfeasor's liability for his negligence. (Example: Original tortfeasor not liable to injured rescuer when bridge on rescuer's own property collapsed while he was responding to the emergency call.)

Immediate battery

Words alone lack the immediacy required to be an assault. But the words themselves may sound immediate. E.g. "I'm going to hit you in 15 seconds." --> Under law, D has not P placed in apprehension of immediate battery, There must be CONDUCT.

Prenatal injuries

Wrongful birth and wrongful life actions are statutorily barred.

self proving causation

Zuchowicz case *if there is a risk in the drug , the overdose is greatly increasing the risk and risk manifests (-> self proving causation) * Stubbs v. City of Rochester (drinking contaminated water can cause typhoid ; and if the water was contaminated it greatly increased the risk of contracting typhoid; risk manifests * if a negligent act is deemed wrongful because that act increases the chances that a particular type of accident will occur, and a harm of that very sort does occur, there is adequate support for a finding by the trier of fact that but for the negligence act, the harm would not have occurred * The burden of proof in establishing this causal link rests with the plaintiff. However, once it is established, the burden shifts to the negligent party to produce evidence denying the "but for" cause and showing its conduct was not a substantial factor in bringing about the harm.

Government Safety Standards

a product's compliance with applicable government safety standards (including labeling requirements) is evidence—but not conclusive—that the product is not defective. [Restatement (Third) of Torts—Products Liability §4] Note also that federal labeling requirements do not preempt state products liability law on defective warnings. [Wyeth v. Levine, 555 U.S. 555 (2009)—product may comply with FDA labeling requirements but still be defective due to inadequate warnings]

actual or constructive notice of defendant resulting in duty to act

constructive notice = knowledge of a fact imputed to an individual who was under a duty to inquire and who could have learned of the fact through the exercise of reasonable prudence Negri v. Stop and Shop Gordon v. American Museum of Natural History Kelly v. Stop and Shop (business practice rule :customer need not establish actual or constructive notice when business practice of store provided continuous and forseeable risk of harm to its customers)

Unforeseeable extent or severity of harm

defendant liable in both direct and indirect cause cases eggshell-plaintiff rule :here defendant's negligence causes an aggravation of plaintiff's existing physical or mental illness, defendant is liable for the damages caused by the aggravation; tortfeasor takes victim as he finds him Vosburg v. Putney (school children, kicking the other under the desk) Benn v. Thomas (plaintiff w heart disease; accident may have acerbated the risk of heart attack) Steinhauser v. Hertz corp. (plaintiff child sustained no bodily injury in car accident but began to develop schizophrenia; jury instructions that accident may have precipitated condition) Kinsman case (ships crashing into lowered bridge because of floods and causing damage to property there and upstream) -> an actor engaging in conduct which entails a large risk of small damages and a small risk of other and greater damage of the same general sort from the same forces and to the same class of persons should be liable for the latter no matter if the chance of its occurrence if viewed alone may not have been large enough to require the exercise of care

Unforeseeable results caused by foreseeable intervening forces

defendant not liable Darby v. National Trust (plaintiff swimming in lake, risk of contracting Weil's disease; instead, plaintiff drowned; harm caused was outside the scope of the risk)

Unforeseeable results caused by unforeseeable intervening force

defendant not liable superseding forces ; breaks the causal connection between the defendant's initial negligent act and the ultimate injury and becomes itself a direct, immediate cause of the injury Wagon Mound (oil carelessly discharged but supposed to be not inflammable; metal falls on cotton waste on water and catches fire; wharf burns down;* if harm outside scope of what made the actor's conduct harmful in the first place, then it is unforeseeable and actor is not liable Berry v. Sugar Notch (tree fell on trolley car with excess speed; speeding did not increase probability of trees falling on trolleys ; no liability; no causal connection between initial negligent act and result Doe v. Mannheimer (defendant's maintenance of overgrowth of property did not create foreseeable risk of plaintiff getting raped by offender; violent criminal assault not within reasonably foreseeable scope of risk of vegetation and overgrowth on property) Palsgraf v. Long Island Railroad (injury to Ms Palsgraff unforeseeable; she was not within scope of risk; and explosion fo fireworks an unforeseeable intervening force)

Foreseeable results caused by unforeseeable intervening forces

defendant usually liable foreseeability of result > foreseeability of intervening force Addis v. Steele (inn caught fire set by arsonist;duty of landowners and lessors to adopt fire safety precautions applies to fires set by criminals)

Negligence per se

if plaintiff can show negligence per se applies, the plaintiff will have established the elements of duty, the standard of care and breach. Liability however then only occurs when the plaintiff can also prove causation and harm Can be excused if D is confronted with an emergency beyond his control.

concurrent causes

multiple forces , no single force by itself would suffice to cause the harm ; if each force results from a different actor's negligence, then each negligent actor may be held liable for the entirety of the ensuing harm

Market share liability

no proof which of the several defendants manufactured product that caused injury ; burden to each defendant to prove its product did not cause the harm ; plaintiff can recover against each defendant failing to do so in proportion to that defendant's share of the market for defective product DES drug case (impossible to determine which manufacturer of DES had supplied the drug causing cancer to appear in plaintiff much later) Sindell v. Abbott Laboratories

Users of recreational Land

owner of open land for recreational purposes without charging a fee is not liable for injuries unless the landowner willfully and maliciously failed to guard against or warn of a dangerous condition or activity

Public Nuisance

private individual may not recover damages for economic loss suffered from public nuisance * 532 Madison Avenue Gourmet Foods Inc v. Finlandia Center Inc. * no recovery for pure economic loss absent personal injury or property damage * Deep Water Horizon catastrophe allowed for economic loss recovery * negligently inflicted pure economic harm, then there is no duty (Deep Water Horizon is the exception) * Koch v. Consolidated Edison Co. of New York Inc : court held that the city stated a cause fo action for damages caused by looting and vandalism of its property but dismissed claims for recovery of emergency wages paid to city personnel such as police and fire officers

Reasonably prudent person (RPP)

reasonable care is the care a reasonably prudent person would use in the same or similar circumstances. (Adams v. Bullock vs Braun - electric wire) (Baltimore and Ohio R.R. v. Goodman vs Pokora v. Wabash Railway) individual mental handicaps not considered (Vaughan v. Menlove) (Bashi v. Wodarz)

Implied Secondary Assumption of Risk

risk arising from negligence, something outside the risk universe that can be characterized as unreasonable care (ski slopes not maintained) -> comparative negligence analysis * Davenport v. Cotton Hope Plantation Horizontal Property : * plaintiff notified landlord that light was not working on one of the staircases ; he tripped and was injured on the darkened stairway later * in response to defendant's negligence, was plaintiff also negligent? * plaintiff was aware of the risk and made unreasonable choices demonstrating improper care to himself * assumption of risk of plaintiff leading to comparative negligence analysis * the defendant must show that the plaintiff: * (1) knew of the facts constituting the dangerous condition; * (2) knew the condition was dangerous; * (3) appreciated the nature and extent of the danger; and * (4) voluntarily exposed himself to the danger.

several liability

several liability made each defendant liable for only its share of the plaintiff's harm ; insolvency thus is a risk borne by the plaintiff as is the burden of pursuing all responsible parties

Express Assumption of Risk

the risk may be assumed by express agreement. Such exculpatory clauses in a contract, intended to insulate one of the parties from liability resulting from his own negligence, are closely scrutinized but are generally enforceable. (Note that it is more difficult to uphold such an exculpatory clause in an adhesion contract.) Hanks v. Powder Ridge Restaurant Corp : the law does not favor contracts that relieve a person from his own negligence ; parties did not have the same bargaining power

Strict liability causes of action

under strict liability , an actor is liable regardless whether the actor was negligent or otherwise culpable. (1) Injuries caused by animals (2) Abnormally dangerous activities (3) Strict liability for products

implied primary assumption of risk

when a plaintiff has impliedly consented, often in advance of any negligence by the defendant to relieve a defendant of a duty to the plaintiff regarding specific known and appreciated risks -> no duty and no breach * no duty to make it safer because it would fundamentally alter the nature of the activity * Davidoff v. Metropolitan Baseball Club : 14 year old plaintiff injured by foul ball * when screening is of sufficient extent to provide adequate protection for as many spectators as may reasonably be expected to desire such seating in ordinary game, then proprietor fulfills duty of care imposed by law and therefore cannot be liable in negligence * limited duty rule : duty of baseball stadium proprietors defined with greater specificity than the usual standard provides