Torts

Duty of Care

"General duty" Duty to exercise reasonable care when the actor's conduct creates a risk of physical harm Exceptional cases - if there are articulated countervailing principles/policy that warrant denying or limiting liability in a particular class of cases, court can determine no duty or modified duty Privity of Contract - cutoff of liability Only exists between parties to a contract and not to anyone outside of the contract Only still applied to utilities like water and electric companies

Professional duty to disclose risk of treatment

"Informed consent" - patient has right to be able to make a decision about procedures on their own body; must be notified of risks and alternatives Doctor proposing a course of treatment or a surgical procedure has a duty to provide the patient with enough information about its risk to enable the patient to make an informed consent to the treatment. If there is an undisclosed risk (which would be serious enough that a reasonable person in the patient's position would have withheld consent to the treatment) then the doctor has breached a duty to inform his patient. A risk is material if it is likely to affect the patient's decision Patient must allege/prove the following: Defendant failed to inform him adequately of a material risk before securing his consent to proposed treatment. If reasonable patient had been informed of the risk he would not have consented to treatment. Adverse consequences that were not made known to him in fact occurred and he was injured as a result of submitting to the treatment. The determination as to whether the pltf would have gotten the procedure after being told of this risk is OBJECTIVE not subjective

Joint Tortfeasors

"Joint and several liability" = each of several tortfeasors is liable jointly with the others for the amount of the judgment against them, and that each is also individually liable for the full amount; plaintiff can collect from any one of defendants or any group of defendants

Anderson v Minneapolis St Paul & SSM Railway

"but for" test does not apply in concurrent cause cases Both fires substantial factors in causing damage rule for pltf

Brown v. Kendall

(Dog fight, plaintiff injured when defendant struck him with a stick while trying to separate dogs). **MAJOR CASE** (First court to look into negligence) Contributory negligence theory Rule: Plaintiff cannot recover if both were using ordinary care, or if defendant was using ordinary care and plaintiff wasn't, or if both were not using ordinary care. Basically plaintiff can only recover when plaintiff is using ordinary care, but defendant was not.

Commonwealth v Peterson

(Virginia Tech campus shootings) Decided that VT police owed no duty to the students as a matter of law P's argued that there was a special relationship as an invitee-invitor Virginia law - for duty to be imposed on school, must be certain degree of foreseeability of harm based on nature of special relationship: Duty to warn: Known or reasonably foreseen harm Foreseeable Imminent probability of harm → required in this case and not met

Cohen v. Petty

(car accident caused by defendant fainting) Rule: If defendant did not know and had no reason to think he would be subject to an attack such as overcame him you cannot be held liable. No fault doctrine. Fairness rule

Rogers v. Board of Road Kent County

(didn't remove posts like they were supposed to, moving lawn injury) If you remain on land without privilege or after consent expires and someone is injured, defendant is liable for the injuries. Once permission or consent expires you are trespassing.

Wallace v. Rosen

(fire drill/ teacher pushing parent) The plaintiff impliedly consented to being touched to move because this was a fire alarm in a crowded place. If someone is blocking the way you should tap him or her or move them out of the way. You are in a crowded place so some touching is warranted. Look at the situation, surrounding circumstances Test: What would be offensive to an ordinary person not unduly sensitive as to personal dignity?

Weaver v. Ward

(gun going off when skirmishing) Rule: Utterly without fault is the way to get out of your liability. Burden of proof on defendant in this case. So you are liable unless you are utterly without fault. Burden is on the defendant

Taylor v. Vallelunga

- Daughter saw Dad get beat up and sued for Intentional Infliction of emotional distress - D did not know the daughter was nearby and could see the act - P could not recover because the act was not intended to hurt her emotionally - No transferred intent

Implied consent

1) Customary or Usage 2) Plaintiff's conduct *Look at objective manifestations. Hypo: Touch football: implied consent to be touched. Implied consent is viewed from a reasonable defendant's position. Very fact sensitive.

Defenses for battery

1. Consent: Express consent fails when you go beyond the consented level of conduct. Implied: Consent is assumed to all ordinary contacts which are customary and reasonably necessary to common intercourse of life 2. Privilege: License is a privilege, but going above and beyond you lose it.

Hegel v Langsam

A Chicago University (the University) failed to look after one of its students and the student began using drugs and associating with criminals. The parents sued the university for failing to maintain order on campus and contributing to the delinquency of a minor. university not a nursery school or prison and there is no special relationship imposing a duty to manage/regulate lives of all students - too high a burden People attending university presumed to have sufficient maturity to conduct own personal affairs

Cordas v Peerless Transporation Co

A driver working for the Defendant's taxi company, jumped from a running taxi when a highwayman entered the taxi and demanded to be driven away while being chased by a recent victim. The driver left the cab while it was still running and it subsequently ran up onto a sidewalk and injured the Plaintiff and her two children. jury should take into account emergency situation in assessing liability of defendant; circumstances of the negligence important in assessing reasonable person standard Emergency situation rule not applied in all jurisdictions (NY- yes) Unforeseen, unexpected, sudden circumstances

Minority: NY/CA

A minority of states have gotten ride of common law/3 categories and the duty owed to anyone coming onto land is the general duty to act reasonably under the circumstances. Rejection or merging of categories The issue is whether there is a hidden danger or not.

Subjective standards: Handicaps

A person is expected to know his physical handicaps and is under a duty to exercise the care of a person with such knowledge. Blind, deaf, smell, epileptic, paralysis, height

Self Defense

A person is justified in using reasonable force to prevent what they reasonably believe to be an imminent threat of force against them. Reasonable Belief: Subjective: they believe, must be subjectively truth Objective: a reasonable person would believe under threat. Reasonable Force: Deadly Force Issue: results in death or serious bodily injury. Deadly Force will be reasonable only when they reasonably belief they are going to have deadly force exerted on them. Ordinarily no duty to retreat for some force, but for deadly force you must retreat if you can escape safely. BUT no duty to retreat in your own home.

Osborne v McMasters

A woman died as a result of ingesting poison from an unlabeled bottle purchased at the Defendant, McMaster's (Defendant) drug store. The Defendant was required by law to label all poisons. where statute provides a duty for protection or others, failure to perform the duty constitutes negligence; violation of statute = liability for injuries Standard formulated by a legislative body in a police regulation or criminal statute becomes the standard for civil liability only because the court accepts it; not automatically applied Common law or statute very persuasive in creating a duty; if statute not applied, Hand formula

Hulle v. Orynge

Absolute liability rule, if you injury someone you must pay.

Prima Facia Elements for Intentional Torts

Act Intent→ intent to invade a protected interest Purpose intent Substantial certainty Invasion of a protected interest (for battery, assault and false imprisonment) Causation/ Extent of liability Damages Issues of privileges or immunity A Defendant who commits an intentional tort is liable for all consequences of intentional injury whether they were foreseeable or not.

Purpose Intent

Act with the purpose of invading a protected interest. You do NOT need to intend the consequences; you need the intent to invade the protected interest.

Intervening Causes - foreseeable intervention

Acts of a third-party intervener will not always sever the causal relationship between P and D Will sever if the intervening act is unforeseeable → superseding Will not sever if the intervening act is foreseeable

Cheatham v Pohle

After the Divorce, Pohle kept nude photos of Cheatham and other pictures of the couple engaged in sexual acts. Pohle distributed at least 60 copies to the community in which they lived and worked. Pohle went further and added personal information (e.g., her name, work location and phone number, as well as her new husband's name) about Cheatham on the pictures before distributing them. Cheatham sued Pohle for intentional infliction of emotional distress and invasion of privacy, and was awarded damages (including $100,000 in punitive damages). A provision of the Indiana code provided that 75% of any punitive damage award must be paid to the state treasury in a fund for violent crime victims. Cheatham brought suit to determine whether the code violated the US Constitution (5th Amendment Takings Clause) and the Indiana State Constitution. Rule that she doesn't get the money, they are a windfall and not a property right purpose of punitive damages not to make the plaintiff whole or attempt to value the injuries, but to punish or deter wrongful activity for both current and future defendants States given fair amount of leeway/discretion in defining punitive damages (usually requires malice) Claim for punitives only sustained if accompanied by a voidable claim for compensatory damage

Problem identifying Defendant in regular tort action

Alternative Liability - both will be held jointly and severally liable

Trespass to Chattels

Any intentional interference with person's use or possession of a chattel without privilege to do so. Restatement Sec. 218: Defendant is liable when: Dispossesses the other of the chattel; or The chattel is impaired as to its condition, quality or value; or The possessor is deprived of the use of the chattel for a substantial time, or Bodily harm is thereby caused to the possessor or harm is caused to some person or thing in which the possessor has a legally protected interest Must be physical disposition or substantial interference. No nominal damages allowed. Only have to pay damages not full value If the pltf takes the chattel back, they can still sue for trespass to chattels

Affirmative Defenses: Consent

Applies to ALL intentional torts. Invalid if done thorough fraud or misrepresentation. First Consider: Does plaintiff have capacity to consent? Children cannot consent Mentally impaired cannot consent If the plaintiff was coerced, then no consent Consent through fraud of mistake Next Consider: Express or implied consent: cannot exceed scope of the consent

Assumption of Risk

Assumption of Risk doctrine → complete defense in a tort action Applies to inherent risks in qualified athletic activities sponsored or operated by a defendant that are held at designated venues Does not apply as a complete bar in suits against landowners for defects in public streets or sidewalks being used by joggers, bicyclists, or skaters → comparative fault may apply Does not apply when defendant conceals or unreasonably increases risk of injury beyond the inherent risks of the game or sport

NEGLIGENCE

Baseline liability No nominal damages → compensatory only Comparative negligence is the theory used today Elements to Negligence Action Duty-- use reasonable care Breach of Duty-- failure to conform to the required standard of reasonable care Causation-- Reasonably close causal connection between the conduct and the resulting injury Actual (Cause-in-fact)-- Actual loss or damage resulting to the interests of another → compensatory No nominal damages Usually no punitive because there isn't malicious intent Proximate (Legal) Damages

Intentional Torts from Writ of Trespass

Battery (freedom from harmful or offensive touching) Assault (free from apprehension of eminent harmful or offensive touching) False Imprisonment (free from intentional bodily confinement) Trespass to Land Trespass to Chattels Every intentional tort involves: Volitional Act: act has been done under the defendant's control. Moe pushes Larry who bumps into curly. Is Moe liable? Yes; Is Larry? No Act: is defined as an external manifestation of the actor's will and does not include results Intent: Usually purpose. Restatement 13(a): The act must be done for the purpose of causing the contact or apprehension or with knowledge on the part of the actor that such contact or apprehension is substantially certain to be produced. Good Faith and Mistake don't get you out of liability for an intentional tort action.

Survivorship Action

Brought by the decedent's estate to compensate for pre-death pain and suffering Survivorship claim distributed pursuant to a will or intestate statute Must be brought within three years from date of accident or one year from date of death

Express Consent

By words, very easy

Negligence per se - Violation of Statute

COURT HAS TO ADOPT THE STANDARD FOR IT TO BE VALID Common law adopts the criminal statute/penal law that has a standard of care in it, the court must adopt it for it to be valid Common law duty established You get the breach of the duty as a matter of law Standards for adopting penal statute standards for common law negligence: Plaintiff part of class legislature intended to protect by the statute? Hazard causing injury was that which legislature intended to protect? Lack of legislative history affords wide latitude to discern these two factors Appropriate to apply standard for tort liability? At the discretion of the court to apply it; not compelled to use penal standard Without negligence per se, you still have the duty to act as a reasonable person would under the circumstances When a court adopts a penal statute as the standard of care in an action for negligence, violation of that statute establishes a prima facie case of negligence, with the determination to be made by the finder of fact whether the party accused of violating the statute has established a legally sufficient excuse Short-cut to show that there is negligence without going to a jury, and applying the reasonable person standard. Showing that there was a specific duty (through legislation/statutes). Prove that there was a breach of duty by failure to follow statute or legislation. Still must show causation and damages

Survival and Wrongful Death

CPLR section 210. Death of Claimant or person liable; cause of action accruing after death and before grant of letters Death of a claimant. Where a person entitled to commence an action dies before the expiration of the time within which the action must be commenced and the cause of action survives, an action may be commenced by his representative within one year after his death. Death of a person liable. The period of eighteen months after the death, within or without the state, of a person against whom a cause of action exists is not part of the time within which the action must be commenced against his executor or administrator not every dependent of the pltf can get damages individually for loss of companionship etc... when the deft dies, the statute of limitations tolls and resumes 18 months later

Palsgraf v LIRR

Cardozo: orbit of danger defines the orbit of duty - depends on foreseeable risk; risk extends to "range of apprehension" Dissent: not a duty issue but one of proximate cause - cut off of causation a question for the jury based on foreseeability, remoteness of time/space, attenuated cause and amount of intervening causes "proximate cause depends on whether there was a natural and continuous sequence between cause and effect. Was one a substantial factor in producing the other? Was there a direct connection between them, without too many intervening causes? Is the effect of cause on result not too attenuated? Could the result be foreseen by prudent foresight?" it was not foreseeable that there would be fireworks in the guys bag. The probability and gravity of injury is low, but the burden is super high because they would have to check every single bag

Unforeseeable Consequences → foreseeability

Cardozo: orbit of danger defines the orbit of duty - depends on foreseeable risk; risk extends to "range of apprehension" You will only be liable to those that are injured within the orbit of danger Foreseeability depends on circumstances - if extraordinary/freakish factors, not foreseeable Bright line cut-off of liability where the liability has an unlimited extent

Fisher v. Carrousel Motor Hotel

Case with defendant hitting a plaintiff's plate → battery because the plate was physically connected to the person since it was in his hand at the time. Plaintiff must be aware of the contact.

Wrongful Death Action

Compensates a decedent's survivors for economic losses Compensate for pecuniary injuries resulting from death of decedent Limited to fair and just compensation for pecuniary losses Loss of support, voluntary assistance, possible inheritance, medical expenses, funeral expenses Claim must be brought within two years, measured from the date of death Essential elements: Death caused by the wrongful conduct of the defendant; Giving rise to a cause of action that could have been maintained at the moment of death by the decedent, if the death had not ensued; Survival by distributees who have suffered pecuniary loss by reason of the death; Appointment of a personal representative of decedent. Only distributes as defined by statute can share in the proceeds of a wrongful death action

Motor Vehicle Reparations

Comprehensive Motor Vehicle Insurance Reparations Act Eliminates small tort claims and limits insurance costs "no fault" system Policyholder compensated by his own insurer regardless of fault in causing the loss "Modified no fault" Benefits are awarded regardless of fault and the right to sue for pain and suffering is permitted only after satisfying a statutory threshold Some states allow "choice" between being within the system or the tort system "add on insurance" = expanded first party coverage that has first party, no fault benefits for medical expenses and lost wages but does not restrict lawsuits for pain and suffering 'added on' to existing tort liability system Recovering for loss after an automobile accident First party benefits follow the car → compulsory benefits Passengers of the car can recover first party benefits (basic economic loss) Injured persons can sue in tort for non-economic loss if they suffer a "serious injury" or if they suffer damages over and above basic economic loss (>$75,000) Non-compulsory insurance Personal injury insurance Property damage Collision insurance

Restatement 222A

Conversion- An intentional exercise of dominion or control over a chattel, which so seriously interferes with the right of another to control it, that the actor may justly be required to pay the other the full value of the chattel A lot of Damage or complete destruction: conversion. Damages in conversion: include serious interference with possessory rights and physical damage. Factors: extent and duration, intent to assert a right inconsistent with owners, good faith, harm done to chattel, inconvenience or expense to other. If information is taken, it must have value to recover. Pearson v. Dodd (copying of documents). Plaintiff can recover full value for chattel, but defendant gets to keep the chattel. If pltf takes back the property, they sacrifice their right to sue for conversion. Taking someone's keys to their car does not count as conversion for the car

Proof of Negligence

Court and Jury: Circumstantial Evidence Plaintiff has three separate burdens of proof on the issue of negligence 1. Burden of pleading - PLEADING 2. Burden of coming forward with enough evidence to avoid directed verdict -PRODUCTION 3. Burden of persuading the trier of fact to find in his favor - PERSUASION Slip and fall cases Direct evidence D put the item there D set up the store in a way that leads to negligent situations Inferential evidence D had constructive notice A certain amount of time passed where D should have found the item and removed it No direct evidence, must argue inferential evidence (D knew or should have known)

7. Interest

Courts traditionally have not permitted the plaintiff to collect interest on the award until judgment entered or a verdict reached Criticized as discouraging settlements - incentivizes defendant to keep money as long as possible without having to pay any interest

Substantial factor test

D's conduct was a substantial factor in bringing about that harm Would not have occurred without the conduct

Bussard v Minimed, Inc

Defendant Minimed, Inc. hired a pest control company to spray pesticide overnight in its facility in order to get rid of fleas. An employee, Irma Hernandez, arrived early the next morning and within a few hours, felt ill, with a headache, nausea, and tightness in her chest. She told two supervisors that she wished to go home because she did not feel well; one asked if she wanted to see the company doctor (she declined) and the other asked if she felt well enough to drive home (she said yes). One her way home, she rear-ended Plaintiff Bussard who was stopped at a red light. Plaintiff sued Hernandez for negligent driving and sued Defendant in vicarious liability under the respondeat superior doctrine, claiming that Hernandez was acting within the scope of her employment while driving home. The trial court followed the "going-and-coming" rule to find that Hernandez was not acting within the scope of her employment during her commute home. employer generally not vicariously liable when employee commuting to/from work "Going and coming rule" - but subject to several exceptions based on foreseeability In the context of particular enterprise an employees conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the business-- they shouldn't have let her drive

O'Shea v Welch

Defendant Welch was a manager of an Osco store. While driving to the district office of Osco to deliver football tickets obtained from a vendor for distribution to Osco managers, Defendant stopped at a service station to get a cost estimate, and while turning into the station, Defendant hit Plaintiff O'Shea. Plaintiff sued Osco for vicarious liability and Defendant for negligence. The District Court held that no jury could conclude that Defendant was acting within the scope of his employment when he stopped at the service station. When determining whether an employee has embarked on a slight or substantial deviation, courts must examine various factors including: 1) the employee's intent; 2) the nature, time, and place of the deviation; 3) the time consumed in the deviation; 4) the work for which the employee was hired; 5) the incidental acts reasonably expected by the employer; and 6) the freedom allowed to the employee in performing his job responsibilities. Whether a jury could determine that the employee's conduct was within the scope of his employment (i.e. was there a triable issue of fact to determine whether employee's deviation from his work errand was slight or substantial)? Yes, a reasonable jury could conclude that Defendant Welch was acting within the scope of his employment when he attempted to turn into the service station. "coming and going" test not necessarily whether specific conduct was expressly authorized or forbidden by employer, but whether such conduct should have been fairly foreseen

State Rubbish Collectors Association v. Siliznoff

Defendant collected garbage from a company Plaintiff claimed was properly subject to collection by one of its members. Defendant alleged that agents of Plaintiff threatened him with physical violence if he did not make an arrangement to pay Plaintiff's member the money derived from the collection, and demanded that he attend a meeting of the association. Defendant also alleged that he was only allowed to leave that meeting after he signed notes promising to pay the money demanded. When Plaintiff sued to collect on the notes, Defendant claimed they were invalid and counter-sued for intentional infliction of mental distress. The jury returned a verdict in favor of Defendant for both the notes and the intentional infliction of mental distress. Rule for deft, doesn't need to have physical harm One who without a privilege to do so, intentionally causes severe emotional distress to another is liable (a) for such emotional distress; and (b) for bodily harm resulting from it.

H.R. Moch Co. v Rensselear Water Co.

Defendant had entered into a long-term contract with the city to supply water for various purposes, including for fire hydrants. During the course of the contract, a building caught fire. The flames spread to a nearby warehouse, owned by Plaintiff, destroying the warehouse and all it contained. Plaintiff brought suit, seeking negligence damages, contending that Defendant breached its duty of care within the city. The trial court denied Defendant's Motion to Dismiss. The appellate court reversed, stating that while a duty existed between Defendant and the city, Plaintiff had no legally recognized interest. Issue. Did Defendant's duty to the city extend to Plaintiff as an individual member of the public? NO-- deft never intended to be held liable for something like this. privity of contract doctrine adopted in this case to create bright line cutoff of liability in order to prevent unduly/indefinitely extended liability Injury foreseeable, but liability would be too great - matter of policy Same rationale later applied in Strauss rather than foreseeability in ConEd case to limit liability to only those that had a direct contract with the defendant

Ryan v NY Central RR Co

Defendant owned a woodshed, which was set on fire either by carelessness or by a defect in one of its engines. Plaintiff's house was 130 feet from the shed. It was consumed in the fire despite diligent efforts to save it. Plaintiff sued Defendant. Defendant moved for a nonsuit, which was granted. The nonsuit was affirmed. Plaintiff appealed. Issue. Is Defendant liable to Plaintiff for the damages sustained to Plaintiff's house in a fire, which originated from Defendant's woodshed? No. Judgment affirmed. * The destruction of Plaintiff's house was not a natural and expected result of Defendant's fire. That Defendant's fire should spread and other buildings be consumed is not a necessary or usual result. Plaintiff's action for negligence cannot be sustained. * The damages incurred by Plaintiff are not the immediate, but the remote result of Defendant's negligence. The immediate result was the destruction of Defendant's own woodshed. Beyond that, it was remote. * A man may insure his own house, or his own furniture, but he cannot insure his neighbor's building or furniture because he has no interest in them. Each man to some extent runs the hazard of his neighbor's conduct. bright line cut-off of liability where the liability has an unlimited extent - matter of public policy → protect against unlimited liability that cannot be reasonably guarded against (especially true for populous cities) Foreseeability not a fair test because it would extend liability to unlimited dimensions and thus clog courts In cases of house fire, only liable to nextdoor neighbors (adjacent property) and not entire neighborhood which may be affected, even though those affects/risks are foreseeable

Harris vs. Jones

Defendant supervised Plaintiff at an automobile factory and frequently mimicked his stuttering condition while at work. Plaintiff asked him on numerous occasions to stop, but he persisted. Plaintiff sued Defendant for intentional infliction of emotional distress, but admitted that Defendant was not the only one who mocked him and that he had had problems with other supervisors in the past. The jury returned a verdict in Plaintiff's favor, but this was reversed on appeal. Second Restatement Ch2 Section 46(1) "One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm" - Elements of Intentional Infliction of emotional distress: 1. Intentional or reckless conduct 2. Extreme and outrageous conduct 3. Causal connection between wrongful conduct and emotional distress 4. Emotional distress must be severe - Elements applied to this case by court: 1. Intent--Yes, purpose intent 2. Extreme and outrageous-- ehh - spoke about how the GM environment was kind of 3. Casual connection-- ehh - P must prove that D and D only caused P's distress. Pre-existing condition doesn't preclude P, you just have to prove the conduct intensified the condition. 4. Emotional distress must be severe- fail. GM proved that P was an extremely emotional person outside of work and had family problems. Humiliation suffered was not intense enough to constitute "severe" emotional distress

NYPL 35.20

Defense of Property Any degree of physical force, other than deadly force, may be used to prevent a crime involving damage to premises. Deadly physical force is permitted to prevent the crime of arson. A person in control of premises may use physical force to prevent a criminal trespass on such premises. A person in possession or control of a dwelling or occupied building may use deadly physical force to prevent a burglary of such premises. 3515 (2) c. Deadly physical force permissible to prevent a burglary, under the circumstances authorized in 35.20

Delair v. McAdoo

Delair v McAdoo - reasonable driver would know that when a tire is worn through to the threads its continued use is dangerous; lack of common knowledge is not reasonable; ignorance not a defense No subjective ignorance P sues D for tire blow out on road. Tire is in bad condition and obviously worn down Court compares this tire to a loaded gun Policy idea: millions of people are now driving, courts must demand that drivers are knowledgeable about car parts and their potential dangers Hand formula: Probability of injury + gravity > Burden of adequate precautions

Products Liability

Different Theories of Recovery Negligence Something goes wrong in manufacturing process (employees action) Failure to test or inspect a product Defective/insufficient packaging or warnings on product Flaws in product design No privity of contract (MacPherson) Warranty (K action) Common law warranties: Express warranty: promissory assertion made about the product in an express way Implied warranty: Implied warranty of merchantability: product meet minimum standards of quality → non-negligence/non-fault - if the product doesn't meet the minimum standards of quality, you are liable for injuries Implied warranty of fitness: buyer relies on seller's expertise in buying a specific product Codified in the UCC Express warranty

Glidden v. Szybiak (1949)

Dog bite that injured little girl D argue that P was engaged in trespass at the time of her injury so she is barred from recovery. Rule for pltf, the property was not damaged at all and the defts were not prevented from using it at all.

Worker's Compensation

Employment Injuries → workers compensation system Compulsory insurance system for work-related disabilities The basic operating principle is that an employee is automatically entitled to certain benefits whenever he suffers a 'personal injury by accident arising out of and in the course of employment' Injured party has to be disabled What constitutes disability varies depending on jurisdiction Cash benefits: wage loss, hospital/medical expenses, benefits for deceased family No pain and suffering Administrative commissions deal with this litigation Employer is required to secure liability through insurance

Daubert Rule

Expert testimony reflects scientific knowledge, results derived by a scientific method, and work amounts to good science Testimony must be relevant to the task at hand must be used in Federal courts

Pearson v. Dodd

Exposure of Senator Dodd's misdeeds by stealing documents from his office - Tort of conversion: lost a chattel which he rightfully possessed and that the defendant had found it and converted it to his own use • Second Restatement of Torts: "An intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other full value of the chattel" - Trespass to chattel is the lesser version of conversion - No conversion of the physical contents of appellee's files took place, and because the information copied from the documents in those files has not been shown to property subject to protection by suit for conversion, the District Court's ruling that appellants are guilty of conversion must be reversed

Intentional Infliction of Emotional Distress

Extreme and outrageous conduct which intentionally causes severe emotional or mental distress to another Doctrine comes from Harris v. Jones: (case making fun of worker for speech issue) Restatement 2d Section 46: One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm. Outrageous and extreme: not expected in everyday world. Continuous conduct: keep it up becomes outrageous. If pltf is a child, elderly, etc... this affects the analysis Type of Plaintiff: Young Children: the younger the more outrageous, Elderly, Pregnant Women Type of Defendant: Common Carries Innkeepers In these cases, plaintiff must be a guest of passenger. Go beyond all possible bounds of decency and to be regarded as atrocious, and utterly intolerable in a civilized community. No mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. Look at the personality of the person making the statement and the surrounding circumstances Matter of fact for the jury to decide If it can be shown that the conduct intensified the pre-existing condition of psychological stress, then can be liable. Cannot recover for negligently caused stillbirth of a child Must be in the zone of danger

Identifying Defendant in Mass Tort Action

First: evidentiary requirement to prove medicine caused injury Daubert/Frye Second: specific causation → identification of defendant → substantial factor test

Failure to Act

General rule = no duty to warn or protect another from criminal acts of a third person because such acts cannot be reasonably foreseen Narrow exception= special relationships Invitee/invitor "Particularized foreseeability" - particular knowledge or special reason to know that a particular plaintiff or identifiable class of plaintiffs would suffer a particular type of injury Therapists/patients → duty to warn if patients tell therapists they will harm another Endangerment of children → duty to warn attaches when you have a special relationship where you are in a position to see possible harm

Vicarious Liability

General rule of vicarious liability Employer held liable because he should bear the risk of loss within certain limits for the employees harmful conduct in the course of his work → employee must be acting "within the scope of employment" Was the tortious conduct fairly foreseeable from the nature of job? Vicarious liability for Intentional Torts - employer may be held liable for the intentional torts of his employee when they are reasonably connected with the employment and so within its "scope" - not limited to negligence Independent Contractors v. Employees Employee-employer relationship hinges on the "right to control" - dependence vs independence If actor has right to control, then independent contractor, and employer not liable If actor subject to control of employer, then employee and employer subject to vicarious liability Going and coming rule: employer generally not vicariously liable when employee commuting to/from work

Subjective Standards: Children

Generally, child is required to conform to the standard of care of a child of like age, education, intelligence, and experience (subjective for policy reasons: children develop differently at different times). Exception: children engaged in adult activities or inherently dangerous activities Child who engages in an activity that is normally one that only adults do are held to the standard of care of an adult performing that activity.

Subjective Standards: Mentally Ill

Generally, still held to the standard of a reasonably prudent person. Exceptions Use reasonable person standard unless mental illness is unanticipated Unforeseen and unavoidable insanity cannot be held liable for negligence If no previous attack, no duty, no standard

Murrell v Goertz

Goertz made a monthly collection for the delivery of Appellee's newspaper at the Appellant's home. Appellant questioned Goertz regarding damage done to his screen caused by the carrier throwing the newspaper into it. An argument began and Appellant slapped Goertz, who then struck the Appellant, injuring him. Appellant claimed that Goertz was a servant of Appellee either by agreement between the co-defendants or by Appellee creating that belief in Appellant. Both Appellee and Goertz denied that Goertz was Appellee's servant. Was Goertz an independent contractor? YES employee-employer relationship hinges on the "right to control" - dependence vs independence; if actor has right to control, then independent contractor, and ER not liable; if actor subject to control of ER, then EE and ER subject to vicarious liability Other considerations to determine this relationship: availability of remedy under Fair Labor Standards Act and Workmen's Compensation statutes; social security/retirement contributions; IRS reportings

Evidence of damages

Growing use of "demonstrative evidence" consisting of tangible items to bring home to the jury the total extent of plaintiffs injury Charts, photographs, videos, models, computer simulations

Zellmer v Zellmer

Guy babysitting his step daughter stops watching her for a bit and she walks outside and drowns. He claims parental immunity. Parent-child immunity Parent not immune when acting outside parental capacity Parent acting within parental capacity who abdicates parental responsibilities by engaging in willful or wanton misconduct is not immune Child can sue parents for negligence in driving a car if child injured - driving an automobile not within the scope of parent/child relationship Discharge of parental responsibilities - providing a home, food, schooling - entails personal, private choice which are not subject to judicial review in absence of culpability beyond ordinary negligence In NY child cannot sue parent for lack of supervision

Battery

Harmful or offensive touching with a plaintiff's person without consent or privilege Can be liable for mistake.

Parental immunity

In course of exercising parental discipline/discretion, parents may be privileged to act in a manner that would be deemed tortious if directed at a stranger. Generally parents are not liable for negligent supervision of child. Immunity only applies to parents standing in loco parentis to the child. You can sue a parent who negligently drives with you in the car → driving in car has nothing to do with parent/child relationship.

Restatement (Second) of Torts Section 520. Abnormally Dangerous Activities

In determining whether an activity is abnormally dangerous, the following factors are to be considered: Existence of a high degree of risk of some harm to the person, land or chattels of others; Likelihood that the harm that results from it will be great; Inability to eliminate the risk by the exercise of reasonable care; Extent to which the activity is not a matter of common usage; Inappropriateness of the activity to the place where it is carried on; and Extent to which its value to the community is outweighed by its dangerous attributes

Medical Malpractice

In the medical field, it is now generally held that doctors should be held to a national standard (which is usually higher than local standards). Presumed to have degree of skill and learning by average member of medical professional Must have done something, which recognized standard would forbid (or not done something which it would require). Standard must be proven by affirmative evidence Negligence must be proven (never presumed) Expert medical testimony must establish negligence

3. Loss or Impairment of Future Earning Capacity

Injury is one in which does not recover and reenter the workforce Jury must be persuaded that injury is permanent Expert testimony must assist jury in estimating what plaintiff would have earned in lifetime Life expectancy, earnings of average person in appropriate field Only serve as general guideline Jury can consider individual factors that might affect life expectancy and earnings Sex, prior state of health, nature of daily employment and its perils, manner of living, personal habits, individual characteristics deft can offer evidence of taxes and stuff to the court without the jury present

Other Intentional Torts

Intentional Infliction of Emotional Distress (freedom from emotional distress) Intentional or reckless conduct Extreme and outrageous conduct Causal connection between wrongful conduct and emotional distress Emotional distress must be severe Conversion (used to be trover)

Categories of Torts

Intentional. Strict Liability→ also known as no fault. This has nothing to do if you acted reasonably or carefully. "Abnormally Dangerous Activity" Negligence→ reasonable prudent person in the circumstances.

CompuServe Inc. v. Cyber Promotions, Inc.

Internet company (P) that sues Cyber (D) due to unsolicited junk emails P sues over trespass to chattel: there was intermeddling because the system was jammed, their business is damaged due to the intrusion of the junk emails Court ruled that trespass to chattel can apply to internet cases

Families

Interspousal Immunity One spouse should not recover damages from the other without substantial evidence that the injurious contact was plainly excessive or a gross abuse of normal privilege. Husband/wife are immune from realm of actions within their intimate relationship. All activities between spouses that are not related with intimate relationship does not have immunity.

Plaintiff's Person:

It does not have to be just with a plaintiff's body, but can be anything physically connected to person.

Endresz v Friedberg

Janice Endresz was seven months pregnant when she was injured in an automobile accident. Two days later she delivered stillborn twins. Four actions in negligence were brought by the Plaintiffs against the Defendant, the first two for the wrongful death of each child. Plaintiffs claimed damages for loss of anticipated care, comfort and support during the minority and majority of each infant and medical, hospital, and funeral expenses for the children. May a wrongful death suit be brought in New York for causing the negligent death of a yet unborn child? NO wrongful death cannot apply to stillborns - "decedent" requires one to be alive, thus unborn fetus is not a decedent and cannot recover → bright line cutoff even though risk of harm foreseeable if injured in utero due to negligence and born alive, can recover (illogical results according to dissent) mother can recover for injuries sustained as a result of negligence in stillborn birth - physical and emotional

Breunig v American Family Insurance Co.

Lady driving a car is all of a sudden seized by the delusion that god has taken over driving the car and then she crashed. She claims this came out of nowhere, but the jury finds that she had prior warning of this. Rule for pltf no subjectivity as to mental capacity; If previous attacks occurred, standard = reasonable person → liability

Restatement (Third) of Torts: Product Defectiveness

Liability of commercial seller or distributor for harm caused by defective products One engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect. Categories of product defect A product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings. A product: Contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product; Is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not unreasonable safe; Is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the instructions or warnings renders the product not reasonably safe.

On the Premises

Majority: Common Law General: Three categories (trespasser, licensee, invitee) under which a person coming onto land falls under, each with different duties. Trespassers Someone coming onto your land without consent. The duty to trespasser is no duty at all. When an exception applies the duty attaches to act as a reasonable person under the circumstances.

manufacturing

Manufacturing Defects → flaw that is not in the general product line Whether the product was flawed or defective because it was not constructed correctly by the manufacturer Misconstructed without regard to whether the intended design was safe or not Easier to prove liability if the product is in plaintiffs possession to show it was actually defective

4. Present Value of Damages

Most jurisdictions require that lump sum for future losses be reduced to "present value" Computed by formula or by reference to tables after determining the interest rate (discount rate) at which plaintiff could invest the lump sum (principal)

Emotional Distress

Must be immediate family member Defendants conduct must be a substantial factor in the injury Injury must be serious and verifiable Must be foreseeable risk of emotional harm (zone of danger) Contemporaneous observation

Blyth v. Birmingham Waterworks Co.

NO NEGLIGENCE P (resident) sues D (water company) for negligence due to a leak during an extreme frost that caused water to go onto P's property and cause damage D argues that this is unusual because the temperatures have never gotten this low P argues that you need to fix the pipes to withstand freezing temps Negligence definition: Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do Court says that the extreme circumstances (frost) does not lead to negligence because no reasonable man can be expected to prevent accidents coming from such unusual circumstances Probability factor D is not liable

Lubitz v. Wells

NO NEGLIGENCE P sues D because P's daughter was injured by D's son with a golf club that was left on the lawn P sues D (the father) for negligence because he knew the golf club was on the ground and that his children would play with it, and that although he knew or should have known that the negligent use of the golf club by children would case injury to a child, he neglected to move the golf club from the backyard D argues that the probability of leaving a golf club in the backyard does not necessarily lead to injury Burden of adequate precautions: policy choice → non-suit because a precedent could be established that anything in your yard that could cause injury would lead to negligence claims Court held that this golf club is not obviously dangerous and that it is not negligent to leave it lying on the ground in the yard D is not liable

US v. Carroll Towing Co.

Negligence Admiralty case - injuries on water Negligent action, P (US, Connors Co.) against D (Carroll Towing Co., and Connors Co.) because a barge, carrying the US' flour, broke lose and sunk with the goods on board Multiple defendants because of shared fault Carroll argued that Connors Co. should share negligency because they didn't have a bargee on board Court ruled that the towing company is partially liable for the losses because in the circumstances, it was reasonably expected that they should have had a bargee aboard during the normal working/daylight hours Owner's duty is a function of 3 variables: (1) The probability that she will break away (2) the gravity of the resulting injury, if she does; (3) the burden of adequate precautions

Act of physical invasion

No intent needed to physically invade another's land. Just intent of walking is enough. Don't need to physically go on land. Invasion to property need be a physical one (Rest. §65) Example: throwing rocks onto someone else's land is enough BUT odors aren't a physical invasion.

Pure Economic Loss

No pure economic loss for financial loss to your business defts can decide who pays what when there are multiple defts for economic losses, but they are not REQUIRED to pay more than their fair share when there are two defts and one of them settles, evidence of that settlement does not need to be presented at the trial for the other deft when one of the two defts settles, and the court decides the combined liability of the two defts is 500, the one deft remaining can request to have it reduced to half

Damages

Nominal damages → trivial amounts awarded to plaintiff to vindicate their rights, make a judgment as a matter of record and prevent defendant from acquiring prescriptive rights; only awarded in intentional torts, NOT in negligence actions Compensatory damages → intended to represent the closest possible financial equivalent of the loss or harm suffered by plaintiff to make the plaintiff whole again and restore the plaintiffs to the position they were in before the tort occurred Required for negligence actions Subject to judicial review on limited basis - "shocks the conscience" test

Land

Not only surface, but subsurface below and air above Distance only extends in the sense that a landowner must be able to make reasonable use of the land. Restatement §159: air travel is a trespass only if it enters into immediate reaches of the air space next to the land, and interferes substantially with the others' use and enjoyment of the land.

Harmful or Offensive Touching

Offensive ~ unpermitted: cause damage to a reasonable sense of dignity (objective) Includes physical force that is rude or in anger. Plaintiff's hypersensitivity cannot be taken into account UNLESS defendant knew about them ahead of time.

Restatement (Second) of Torts Section 519. General Principle

One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.

Licensees

One who enters land by permission of owner, but for the licensee's own purpose (social guest, visitor). A licensee generally must take the premises of his host as he finds it. The duty toward licensee by owner is warning the licensee of any hidden dangers that are unknown

Owners and Occupiers of Land

Outside the Premises Test to Determine Duty - held to the standard of reasonable care Several factors used in determining → use hand formula. Must determine what a reasonable standard of care to prevent an unreasonable risk of harm is with regard to amount of attention that the landowner should be paying attention to condition of roadside property. Take into account actual conditions

Davison v. Snohomish County

P (Davidson) sues D (Snohomish County) over negligently building the elevated approach to a bridge P's car skidded and broke through the railing and fell to the ground Both P's suffered severe and painful injuries to which they sought recovery for Court ruled that cars caused certain changes in the law Cars weren't really popular at this time—roads were really designed for horse and carriage P argument: County was negligent in having wooden rails High probability of injury/gravity D argument: Burden of adequate precautions is very high (rooted in time period) Replacing all wooden rails would be very expensive Technologically, the elevated surface is too difficult to protect against Degree of protection on normal roadways could not be applied in this case because the elevated frame couldn't support better guard rails

Greenman v Yuba Power Products, Inc

P bought a combination power tool and used it for a wood lathe and the lathe randomly broke and a piece of wood hit him on the forehead causing serious injuries. Sues D, manufacturer of product Rules defining and governing warranties that were developed to meet the needs of commercial transactions cannot properly be invoked to govern the manufacturer's liability to those injured by their defective products unless those rules also serve the purposes for which such liability is imposed Restatement (Second) of Torts, section 402A. Special Liability of Seller of Product for Physical Harm to User or Consumer One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if The seller is engaged in the business of selling such a product, and It is expected to and does reach the user or consumer without substantial change in the condition in which it is sold The rule stated in subsection (1) applies although The seller has exercised all possible care in the preparation and sale of his product, and The user or consumer has not brought the product form or entered into any contractual relation with the seller. 402(A)(1): any one who sells the product in the defective condition can be held liable → wholesaler, retailer joint and several liability 402(A)(2)(b): no privity of contract After 402A 3 types of defects that lead to strict liability: Manufacturing defect Failure in design Failure to warn

Katko v. Briney (1971)

P was shot by a spring gun shotgun set up by D P was trespassing into D's abandoned house to collect antiques when shot P sued for injuries Restatement of Torts §85, 180: "The value of human life and limb, not only to the individual concerned but also society, so outweighs the interest of a possessor of land in excluding from it those whom he is not willing to admit..." §35.20 (3) - D was not justified in setting up a spring gun because although it was a home, D was not physically there (D could not reasonably believe that another person is committing a burglary because you are not there). Protection of property does not protection of person. The reason people can use deadly force is to protect themselves, not their home. Example: You cannot have a dog trained to kill the man that enters your house when you are not there—must be there

Invitees

Person on land in furtherance of owner's business. The duty owed is greater than owed towards licensee: The owner has a general duty to exercise reasonable care in keeping the premises reasonably safe for use by the invitee.

Miller v Civil Constructors, Inc

Plaintiff Miller was shot by a stray bullet during law enforcement officer target practice near a firing range in a quarry. Plaintiff sued Defendant Civil Constructors, Inc. (as owner of the quarry) in strict liability for injuries to Plaintiff arising from "ultrahazardous" activity for which Defendant was legally responsible, based on control of the premises or the discharge of firearms from police officers conducting target practice on the premises.. Are guns ultrahazardous? NO more than 1 of Restatement 520 factors required, but not all in order to impose strict liability; public policy considerations important "whether the risk created is so unusual due to magnitude or circumstances to justify imposition of strict liability even though the activity was carried on with all reasonable care"

Taylor v Olsen

Plaintiff brought an action against the Defendant for damages she sustained when her car struck a tree, which had recently splintered and fallen across the road. Defendant was alleged to be in possession of the location from where the tree fell. Plaintiff appeals from a judgment entered on the directed verdict from Defendant. Issue. Is a landowner liable for damages caused when a tree on her property falls into a public roadway, when there was no previous evidence to suggest that the tree is not structurally sound? NO-- reasonable care to prevent unreasonable risk of harm to be decided as question of fact upon the circumstances of the individual case Imposing duty to inspect every tree on property likely creates high burden if a rural area, but low burden in an urban locale - fact specific analysis

How to prove intent for Infliction of Emotional distress?

Plaintiff can show defendant acted with reckless disregard of a high probability that her conduct would cause emotional harm in another person. Normally, transferred intent isn't applicable here. Taylor v. Vallelunga (daughter) Defendant harms someone with knowledge that a close relative is present, and then defendant is liable for IIED. This is more a question about substantial certainty.

1. Medical Expenses

Plaintiff compensated for reasonable medical expenses Bills for doctors, hospitals, physical therapists, nurses, medication, x-rays, crutches, wheel chairs, braces, travel to different climate Past medical expenses proved by submitting bills into evidence or through testimony Future medical expenses must be proved by expert testimony establishing anticipated need and predicted cos Cannot recover for costs incurred that were unrelated to tortious injury, unnecessary, or excessively high

Proof issues in Products Liability

Plaintiff must prove: 1. Product that injured the plaintiff was in fact manufactured by the defendant 2. Product was defective and plaintiff was injured as a result (cause in fact) 3. Defect was present in the product at the time of sale, not introduced later by a distributor or installer or repairer Misuse of a product leading to injury → was the misuse foreseeable? Misuse as a defense: 1. No defect → no prima facie case for products liability, no recovery 2. Defect did not cause injury → no causation, no recovery 3. Plaintiffs unreasonable conduct in contributing to the injury should reduce recovery - Comparative fault Services not included in products liability, even where goods and services are mixed Dentist drill breaks and injures patient Pharmacist prescriptions Doctor implants defective pacemaker

Rylands v Fletcher

Plaintiff owned and operated a mine adjacent to which Defendant constructed an artificial pond. The latter caused a mineshaft collapse, which resulted in a flood, and damaged Plaintiff's operation. The plaintiff sued, the matter was brought before an arbitrator to independently establish facts. The trial court found for Plaintiff; the appellate court affirmed; Defendant appealed to the House of Lords, which also affirmed. Ruled that the defts use of the land was unreasonable, so he is liable a person who for his own purposes brings on lands and collects and keeps there anything likely to do mischief if it escapes is prima facie liable for the consequences Not liable for the "natural use" of the land, but liable for unnatural use that causes injury to others

Freehe v Freehe

Plaintiff was injured on a tractor and sued for personal injuries. The tractor was the separate property of his wife, the Defendant, along with all of the assets and income of the farm on which the accident took place. Plaintiff has no interest in the farming operation, nor is he employed by the Defendant. Plaintiff brought suit, claiming negligent maintenance of the tractor and failure to warn of the tractor's unsafe condition. The trial court granted Defendant's motion for summary judgment based on interspousal tort immunity. Issue. Was the trial court correct to grant defendant summary judgment based on interspousal tort immunity? NO, interspousal immunity no longer makes sense Interspousal immunity rule of common law abrogated for policy reasons general rule: interspousal immunity no longer a valid defense for personal injury actions; contemporary majority rule does not permit interspousal immunity where the tortious activity has nothing to do with the spousal relationship automobile accidents do not have to do with the spousal relationship preparing food is a part of that relationship

Rix v General Motors

Plaintiff was injured when his pickup was hit from behind by a chasis-cab that had been equipped with a water tank, after sale, by the Defendant dealership. Plaintiff brought suit against Defendant under a theory of strict liability, and products liability, maintaining that the product, which had been placed into the stream of commerce, was unreasonably dangerous because of both manufacturing and design defects. Is strict liability the standard for defects cases? No Restatement 402A adopted as doctrine; plaintiff has to prove the product deviated from the seller's design or from the seller's other products of the same design, not what the specific conduct of the manufacturer led to the defect (negligence)

Winterbottom v Wright

Plaintiff, a mail coach driver, was seriously injured when a vehicle broke down due to lack of repair. Defendant had contracted with the Postmaster General to keep the coach in safe and secure condition. Defendant failed to comply with this promise, resulting in Plaintiff's injuries. bright line cutoff of liability - only exists between parties to a contract and not to anyone outside of the contract Policy concern of opening up liability to anyone and creating excessive litigation No privity of K in products liability cases

6. Federal Income Tax

Plaintiffs award for personal injuries not subject to federal income tax Compensatory damages excluded from gross income for IRS reporting purposes Punitive damages are considered income and thus subject to taxation

Perkins v Texas and New Orleans R.R. Co

Pltf is the passenger in the car. where 2 defendants negligent in their conduct and harm occurred, which is liable for that harm (where no joint and several liability)? D1 - car driver clearly negligent for crossing tracks when train coming D2 - train negligent in breaching duty by going over speed limit Speed of train would not have made a difference, even if going at speed limit, collision would have occurred No "but for" test or substantial factor, so RR not liable

Rules of Law - no standard of care as a matter of law

Pokora v Wabash Railway Co. → courts do not lay down specified standards of care as a matter of law Standard = general duty based on circumstances Specified standard would take away negligence analysis from the jury

Proximate or Legal Cause

Proximate/legal cause is where to cut off the liability based on foreseeability Restatement: Conduct constituting proximate cause "need only be a cause which sets off a foreseeable sequence of consequences, unbroken by a superseding cause, and which is a substantial factor in producing the particular injury"

Assault

Reasonable apprehension of an imminent battery. Apprehension: must be reasonable. Don't confuse with fear or intimidation Imminent Battery: Words alone generally do not prove immediacy. Must be present. Must be words and conduct like gestures. Exception: Defendant's past acts or surrounding circumstance. Cannot have an assault when plaintiff is not aware; Garratt v. Dailey: 5 year old removing chair: not an assault because her back was turned Plaintiff needs to believe that such contact will occur, and requires that the actor have the apparent present ability to effectuate the attempt and the plaintiff be aware of such act Western Union Telegraph v. Hill (Sexual remarks over the counter while getting clocks fixed) D throws a rock and doesn't know p is behind the corner. Can be sued for assault

Hackbart v. Cincinnati Bengals Inc. (1979)

Regular season game of Broncos v. Bengals where an intentional injury was inflicted by one player against the opposing player. Can this give rise to liability tort? Despite the fact that the act was admitted to be intentional, the trial court ruled as a matter of law that in the game of professional football it is a business which is violent in nature and that the available sanctions are imposition of penalties and expulsion from the game In football, you have implied consent to be hit to a certain level (within the rules) Appellate court found that P is entitled to have the case tried on assessment of his rights and whether they had been violated Reversed and remanded

Unknown medical causes

Requires expert testimony to determine causal connection Actual cause of injury is unknown, but injury to P must be a precipitating cause (makes the original condition worse)

Solving big proof issues

Res Ipsa Loquitur - rule of circumstantial evidence; inference of negligence based on circumstances; D can prove it was someone else to get out of it D must have exclusive control of the instrumentality The incident would not have happened if the person having control of the instrument had used reasonable care The plaintiff must prove by the preponderance of the evidence that the defendant was negligent. The plaintiff may do this by circumstantial evidence, that is, by proving the facts and circumstances from which negligence may be reasonably inferred. If the instrumentality was within the exclusive control of the defendant, And if the circumstances surrounding the happening of the accident were of such a nature that in the ordinary course of events it would not have occurred if the person having control of the instrumentality had used reasonable care under the circumstances, the law permits, but does not require, you to infer negligence from the happening of the accident. The requirement of exclusive control is not rigid. It implies control by the defendant of such a kind that the probability of the accident was caused by someone else is so remote that it is fair to permit an inference that the defendant was negligent

Strict Liability in Tort

Restatement (Second) of Torts, section 402A. Special Liability of Seller of Product for Physical Harm to User or Consumer One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if The seller is engaged in the business of selling such a product, and It is expected to and does reach the user or consumer without substantial change in the condition in which it is sold The rule stated in subsection (1) applies although The seller has exercised all possible care in the preparation and sale of his product, and The user or consumer has not brought the product form or entered into any contractual relation with the seller. After 402A 3 types of defects that lead to strict liability: 1. Manufacturing defect 2. Failure in design 3. Failure to warn

Hand Formula

Restatement 3d Sec. 3: A person acts negligently if the person does not exercise reasonable care under all the circumstances. Primary factors to consider in ascertaining whether the person's conduct lacks reasonable care are the foreseeable likelihood that the person's conduct will result in harm, the foreseeable severity of any harm that may ensue, and the burden of precautions to eliminate or reduce the risk of harm. 1) Probability/likelihood of Injury 2) Gravity/severity of Injury 3) Burden the judge does not have to specifically instruct the jury on the hand formula

Rowland v Christian

Rowland (Plaintiff) asked to use the bathroom and was injured when a cracked handle of the cold-water faucet on the basin broke and severed tendons and nerves on his right hand. Nancy Christian (Defendant) had known for two weeks that the handle was cracked and had complained to the manager. However, she did not warn Plaintiff of the condition. Now just use ordinary negligence to make the determination. eliminated categories of trespasser/licensee/invitee in California (adopted in NY) Where the occupier of land is aware of a concealed condition involving in the absence of precautions an unreasonable risk of harm to those coming in contact with it and is aware that a person on the premises is about to come into contact with it, the trier of fact can reasonably conclude that a failure to warn or to repair the condition constitutes negligence New standard easier to get case to the jury

Bonkowski v. Arlan's Department Store (1968)

Shopkeeper's privilege P sues D for false arrest Plaintiff was still in the near vicinity and she was detained for a reasonable amount of time. The shopkeeper did not have reason to believe she stole the goods until after she left the premises, so the detention in the parking lot was reasonable under the circumstances NY Business Law 218: Person can be detained on or in the immediate vicinity of the premises in a reasonable manner and for a reasonable amount of time The shopkeeper can detain customers they reasonably believe are shoplifting. A shoplifter can be detained when: Reasonable suspicion of shoplifting Detention for a reasonable time Detention is in a reasonable manner

Substantial Certainty

Someone doesn't desire or wish to bring about the outcome, but knows with substantial certainty it will occur. Then there is intent Garratt v. Dailey (pulling chair out from under women). It does not matter that the defendant was 5 years old, minors are still liable. He knew with substantial certainty that she would fall to the ground. He has the intent, even though he might have desired to do so. Does not need to intend the consequences. ONLY requires knowledge that the immediate effect is substantially certain to result. Someone who is mentally disable is held to the same standard as a reasonable person. Insanity cannot be used to show incapability of entertaining the same intent.

Spano v. Perini Co

Spano's (Plaintiff's) garage and Davis' (Plaintiff's) car, which was in the garage, were both wrecked by shock waves from a dynamite blast set off by Defendant on its nearby property. Defendant set off 194 sticks of dynamite about 125 feet from Plaintiff's garage. There was no physical trespass and no proof of negligence on the part of Defendant. Prior law under Booth v. Rome required that negligence must be shown, unless the blast was accompanied by a physical invasion of the property. No attempt at trial was made to show that Defendant had failed to use reasonable care. The court awarded Spano, $4,400.00, and Davis, $329.00. Defendant appealed. Yes. Judgment affirmed. * One who engages in blasting must assume responsibility and be liable without fault for any injury he causes to neighboring property. This holding overturns the holding in Booth. Rule: absolute liability for damages from blasting. Adopts an absolute liability standard here. This is still good law.

Governmental/State Immunity

State - generally immune, provide for consent to be liable in tort via legislation (Federal Tort Claims Act) State Agencies/Instrumentalities - sovereign immunity generally extends to agencies and instrumentalities including hospitals, prisons, educational institutions, state fairs, conservation districts, commissions for public works Municipal Corporations - Courts impose liability when the city or town engaged in activity that was normally carried out by the private sector of the economy and reserved immunity for traditional governmental functions (elections, judicial system, police powers) Scope of immunity determined by proprietary vs governmental distinction State can be vicariously liable for tortious acts of employees that are not immune if acting within the scope of employment

Abnormally Dangerous Activities

Strict Liability Rule of strict liability: The D will be liable when he damages another by a thing or activity unduly dangerous and inappropriate to the place where it is maintained, in the light of the character of that place and its surroundings Imposition of strict liability where there is a breach of an absolute duty; new theory of recovery above negligence and intentional torts Have to demonstrate cause in fact Comparative fault applies → plaintiff not barred if partly at fault for the injuries/loss Issues of proximate cause/cut off of liability may arise Section 520. Abnormally Dangerous Activities - factor balancing test In determining whether an activity is abnormally dangerous, the following factors are to be considered: Existence of a high degree of risk of some harm to the person, land or chattels of others; Likelihood that the harm that results from it will be great; Inability to eliminate the risk by the exercise of reasonable care; Extent to which the activity is not a matter of common usage; Inappropriateness of the activity to the place where it is carried on; and Extent to which its value to the community is outweighed by its dangerous attributes

False Imprisonment

Sufficient act of restraint to a bounded area. Sufficient act of restraint: think common sense. Threats are enough and assertions of legal authority. Inaction will be enough in some cases. Think leaving you off shore without a boat example. Plaintiff must be aware of the confinement. Parvi v. City of Kingston (case where cops left drunk civilian on golf course) Length of time for confinement is irrelevant. Bounded Area: Freedom of movement is restricted Must be more than mere inconvenience EXCEPTION: There is a reasonable means of escape for the plaintiff that they know about. You can have false imprisonment in a moving automobile Commitment to a nursing home without your consent can create an action for false imprisonment. Big Town Nursing Home v. Newman

Baxter v Ford Motor Co

The Appellant, Baxter's (Appellant), eye was injured when the windshield of his car shattered. Appellant claimed that the trial court improperly excluded evidence in printed materials produced by the Respondent, Ford Motor Company (Respondent), claiming that the windshield was shatterproof. Rule for pltf express warranties run to the ultimate consumer; no immunity by privity of contract for a warranty action Original act of delivery is wrong, when, because of lack of qualities which the manufacturer represented the product as having, the absence of which could not be readily detected by the consumer, the article is not safe for purposes of ordinary use

Maloney v Rath

The Defendant collided with the car of the Plaintiff. The accident was caused by brake failure. Three months earlier the Defendant had her brakes overhauled by Peter Evanchik (Mr. Evanchik), a mechanic. The trial court determined that Mr. Evanchik's negligent repair effort was the cause of the accident and rendered judgment if favor of Defendant. Plaintiff appealed. even if an independent contractor, ER can be liable if there is risk of serious bodily harm/danger "non-delegable duty" - one who carries on an activity which threatens grave risk of serious bodily harm or death unless the instrumentalities used are carefully maintained, and who employs an independent contractor to maintain such instrumentalities, is subject to the same liability for physical harm caused by the negligence of the contractor in maintaining such instrumentality as though the employer had himself done the work of maintenance (Rest of Torts section 423)

Campbell v Weathers

The Defendant operated a lunch counter and cigar stand. The Plaintiff entered Defendant's business, stood by the front counter without making any purchases, then went to the back of the building to use the toilet. Plaintiff stepped into an open trap door in a dark hallway and was injured. Plaintiff sued for negligence and the trial court sustained Defendant's demurrer to the evidence. Plaintiff appeals. Issue. Was the trial court correct in determining that the plaintiff was not an invitee and that defendant was entitled to judgment? NO-- pltf was a customer there for many years and had used the bathroom before Invitees Invitee = person on the premises in furtherance of the owner's business Owner has duty to exercise reasonable care in keeping the premises reasonably safe for use by the invitee - can include protection from criminal attacks by third parties Duty of reasonable inspection to find hidden dangers and use reasonable care to take affirmative action to remedy a dangerous condition

Salevan v Wilmington Park, Inc

The Defendant owned land, which was rented as a ballpark and facilities. The Plaintiff brought suit against Defendant for personal injuries he sustained when struck in the back by a baseball while walking past the Defendant's ballpark. Issue. Does defendant, as landowner, have the duty to exercise reasonable care in the use of his land so as to prevent injury to travelers using the adjacent sidewalk? YES if activity on premises causes injury outside the land, owner generally held to duty of reasonable care; where defendant knew or should have known about injurious activity, duty to take sufficient precautions attaches

Watson v Kentucky and Indiana Bridge & RR Co

The Defendant railroad's tank car filled with gasoline derailed and spilled its contents into the street where the Plaintiff was a bystander. A third party struck a match igniting the gasoline vapor and causing the explosion, which injured the Plaintiff. There was conflicting testimony at trial over whether the third party started the fire while lighting a cigar, or whether he dropped the match with the intention of igniting the gas. if intervening cause is criminal, liability cut off - not automatic, depends if conduct was foreseeable

Hymowitz v Lilly & Co

The Food and Drug Administration approved the manufacture and marketing of the drug diethylstilbestrol (DES) in 1941 for use as a generic drug in the prevention of miscarriages. Approximately 300 companies manufactured the drug, and as it was generic no single company held patent. It was found later that DES created a high risk of vaginal cancer in some children of women who had used the drug. Because so many companies manufactured and marketed the drug, it was often impossible for potential plaintiffs to identify exactly which company had manufactured the particular batch that the plaintiff had ingested. At trial, the manufacturers moved for summary judgment on the grounds that it could not be determined with specificity they any one of them was responsible for the injuries sustained by a particular plaintiff. The motions were denied and the Appellate Division affirmed. New York's highest court reviewed. They determined that if the company distributed DES nationally, they could not exculpate themselves even if they can prove the particular pltf did not use the DES they manufactured Res ipsa loquitur does not apply → no exclusive control by defendants Alternative liability (Summers v Tice) does not apply → not all tortfeasors present - defendants do not make up entire DES market, but only a substantial portion = lower chance actual wrongdoer present No "concerted liability" → parallel activity exists, but not an agreement to commit tortious acts Who bears the cost of injury? Certainly not plaintiffs, but how to apportion liability to numerous defendants? Practical solution Market share theory -use national market figures to apportion liability to defendant manufacturers corresponding to the risk created to public at large Defendant can exculpate himself if he can prove he was not part of the DES market (unlikely) Cannot exculpate for merely not causing the specific injury to plaintiff Exceptions not based on locality Defendants liability only several - no inflation of shares to ensure 100% recovery Collins v. Wisconsin -risk Sindell v. Abbot- CA- market share

Hill v Edmonds

The Plaintiff was injured when the car the Plaintiff was riding in hit a tractor truck left parked in the road without its lights on. The driver of the car testified that she saw the tractor ahead of her before the collision and so may have been negligent in causing the accident. At trial the court dismissed the complaint against the owner of the tractor due to the testimony of the car's driver. Where separate acts of negligence combine to produce directly a single injury, each tortfeasor is responsible for the entire result, even though his act alone might not have caused it Both P and Ds conduct were substantial factors in the causation of injury (no but for test)

Sheehan v St Paul & Duluth Railway Co.

The Plaintiff was walking on the Defendant's railroad track when his foot slipped and became caught on the rail. As Defendant's train approached, Plaintiff was unable to extricate his foot. Defendant's train crew did not see Plaintiff until it was too late to stop the train and therefore Defendant's train ran over Plaintiff's foot. The trial court entered a directed verdict for Defendant and Plaintiff appeals. Issue. Is a railroad company under a duty to anticipate trespassers upon its tracks, such that it will be liable for injuries that occur thereon? NO Trespassers For parties on the land without consent or privilege, no duty owed if they are injured Exceptions to this immunity: Trespassers presence has been discovered Frequent trespassers on a very limited area of land - defendant required to anticipate and exercise reasonable care for their protection "tolerated intruders" - continued toleration of trespasses amounts to permission, so intruder becomes a licensee (duty owed) Failure to take steps to prevent trespassing where such would be burdensome, costly and futile is not consent

Gentry v Douglas Hereford Ranch

The Plaintiff's wife was shot in the head and died when a hunting rifle was accidentally discharged. The gun went off when Bacon, the guns owner, slipped while ascending the Douglas Hereford Ranch's porch stairs. At trial, Bacon testified that he was unable to say what caused his fall. Douglas Hereford Ranch was not found liable at trial. even though defendants negligent in conduct by keeping stairs in disrepair, plaintiff failed to show that such was a substantial factor in the cause of injury - not enough evidence = no liability

Barmore v Elmore

The Plaintiff, Barmore (Plaintiff), visited the home of the Defendants, Thomas Elmore Sr. (Thomas Sr.), Esther Elmore and Thomas Elmore Jr. (Thomas Jr.) (Defendants), to discuss business of the Masonic Lodge. During the visit, Plaintiff was attacked and stabbed by Thomas Elmore Jr. Plaintiff filed suit against the Defendants, claiming they were negligent in failing to protect him from a dangerous condition on their premises. Licensees Social guest considered a licensee - one who enters the premises by permission, but for the licensee's own purposes (companionship, diversion, entertainment) Owner has limited duty to warn the licensee of any hidden dangers of which the owner has knowledge of but are unknown to the guest, and duty to refrain from willfully and wantonly injuring the guest; no duty to inspect for unknown dangers Duty owed to licensee less than that toward an invitee

Whelan v Van Natta

The Plaintiff, Whelan (Plaintiff), entered the Defendant, Van Natta's (Defendant) store, made a purchase and then asked if he could have a box. Defendant told Plaintiff to enter a back room to get the box. Plaintiff was injured when he fell into an unseen stair well in the unlit back room. Was the trial court correct in its determination that the status of the Plaintiff changed from invitee to licensee after he went into the storage room to obtain a box? YES Invitees Invitee who goes outside the area of his invitation becomes a trespasser or licensee (lower degree of duty owed) depending whether he goes with or without consent of owner Invitee retains statue only while he is in part of land to which his invitation extends - part upon which possessor gives him reason to believe his presence is desired for purpose for which he has come (generally a business purpose) Invitee ceases to be an invitee after expiration of a reasonable time to accomplish the purpose for which he is invited to enter or remain

Kramer v Wilkins

The Plaintiff, Wilkins (Plaintiff), received a cut on his forehead due to the negligence of the Defendant, Kramer Service, Inc. (Defendant). The cut did not heal and developed into skin cancer. The Plaintiff seeks damages for the resultant cancer. The first expert testimony said that there was a 1 in a 100 chance that this would lead to cancer, the other said it was impossible. specialized circumstances may require expert testimony to determine causal connection Actual cause of injury unknown (cancer), but injury to P (laceration) not a precipitating cause (intensifying) No liability for cancer = lower damages; still liable for damages caused by laceration

Bierczynski v Rogers

The Plaintiffs, Cecil and Susan Rogers (Plaintiffs), brought a negligence action against the Defendants, Race and Bierczynski (Defendants), for a car accident caused by a high speed race Bierczynski and Race were involved in. The evidence showed that Bierczynski and Race came down a hill side by side-by-side at twice the legal limit when they approached Plaintiffs' car. Race tried to get his car back into the eastbound lane, but lost control and careened into Plaintiffs' car. Bierczynski remained in the proper lane at all times, and his car never came into contact with the Plaintiff's vehicle. The jury found that Race and Bierczynski were each negligent and that the negligence of each was a proximate cause of the accident. The defendant Bierczynski appealed the verdict. Race joined with Plaintiffs in upholding the judgment below. Rule he is also liable liability attaches even if no contact made with plaintiff due to defendant acting in concert with other defendant to cause injury to the plaintiffs

The Standard of Care

The Reasonable Prudent Person - general duty = act reasonably under the circumstances Not reasonable man anymore—reasonable person Always objective excecpt: Physical incapability (blind, deaf, etc.) Children

Surroco v. Geary (1853)

The entire city was being engulfed in flames. Deft believed that by blowing up Pltfs house he could stop the spread of the fire. The blowing up of the house was necessary, as it would have been consumed had it been left standing The fire chief blows up a house to save the city from fire. He is not liable because he did it to protect the greater good. Public necessity

Daubert v Merrel Dow Pharmaceuticals Inc

The minor Plaintiffs were injured when their mothers ingested drugs manufactured by the Defendant. According to the Plaintiffs' experts, the drug manufactured by the Defendant caused the deformities. However, the majority of the scientific field does not agree that the drug causes limb deformities and the Federal Drug Authority (FDA) continues to approve of its use in pregnant women. Rule that the experts testimony is inadmissible. sets rule as to evidence of causation Other jurisdictions causation analysis for toxic substance exposure General causation - toxin capable of causing the medical condition or ailment? Specific causation - exposure to toxin caused this specific plaintiffs condition?

Bartolone v Jeckovich

The plaintiff suffered whiplash and other injuries as a result of a car crash. His injuries aggravated a pre-existing schizophrenic condition. for a pre-existing condition, must show that conduct aggravated the condition to the extent leading to injury Concurrent cases with more than one D No "but for" test available Where separate acts of negligence combine to produce directly a single injury, each tortfeasor is responsible for the entire result, even though his act alone might not have caused it Rule for pltf

Yun v Ford Motor Co.

The plaintiff was driving her van when the spare tire came loose from its holding and came off of the van. The plaintiff and her father Chang, who was a passenger, stopped the van when they heard the tire come off. Chang got out and crossed the highway to retrieve the tire and other parts of the support bracket. On his way back to the van Chang was hit by a car and killed. proximate cause focuses on foreseeability as to the plaintiff specifically (foreseeable plaintiff) Conduct constituting proximate cause "need only be a cause which sets off a foreseeable sequence of consequences, unbroken by a superseding cause, and which is a substantial factor in producing the particular injury Foreseeability depends on circumstances - if extraordinary/freakish factors, not foreseeable Plaintiff going across 4 lanes of highway traffic to retrieve parts = senseless/extraordinary → not foreseeable If under Cardozo analysis - no duty exists because of unforeseeability of plaintiffs actions

O'Brien v. Cunard (1891)

Tort for assault and for negligently vaccinating P on a steamship - Trial court directed a verdict for D and P brings exceptions - If P's behavior indicated consent, D was justified in his act and there would be no assault • There was notice all around the ship about the vaccines, P stood in line and saw other women getting shots--Nothing in the conduct of P to indicate to the surgeon that she did not wish to obtain a card and be vaccinated - Implied consent • You must look at the behavior surrounding the act - Exceptions overruled

Trimarco v. Klein

Trimarco v Klien - reasonable standard of case should consider industry customs/practices in analysis (has probative value), but such are not conclusive; question for jury to decide P (tenant) sued D (landlord) for using glass on a bathtub sliding door that ended up shattering and injuring P. Glass was ordinary, instead of the tempered safety glass used throughout the industry Establish custom to show what should have been done → establishes the specific duty required by the reasonable person Custom has probative value, but not conclusive Court ruled that this question should go to the jury to decide, in conjunction with the facts, whether the landlord used reasonable care in not following industry trends Prescriptive signals → get rid of shower enclosements

Kelly v Gwinnell

Two of the Defendants were Zak and Gwinell (Defendants). Gwinnell drove Zak to Zak's home, where Gwinell consumed alcoholic beverages. Zak walked Gwinnell to his car, where he chatted with him and watched him drive off. On his way home, Gwinnell was involved in a head on collision with the Plaintiff, Kelly (Plaintiff), who was seriously injured. Is a host who serves liquor to a guest, knowing that the guest is intoxicated and will be operating a motor vehicle, liable for injuries inflicted on a third party when the injuries are a result of negligence and the negligence is caused by the intoxication? YES-- this was a substantial factor social factors taken into account - social utility of serving alcoholic beverages at parties taken into account when ruling that host liable for visibly intoxicated guest turned drunk driver and resulting injuries Modified liability of social host (NJ statute) Only extends to 3rd parties (not the intoxicated person) Not jointly and severally liable BAC b/w 0-.10% = irrebuttable presumption that person was not visibly intoxicated; b/w 0.10-0.15 = rebuttable presumption that the person was not visibly intoxicated

Louisiana v M/V Testbank

Two ships collided, causing toxic chemicals to be released into the environment and causing the United States Coast Guard (Coast Guard) to close a Mississippi River outlet. Numerous lawsuits were filed by those affected by the closing of the outlet. Liability cut off at economic loss suffered by physical injury only - must be damage to proprietary interests to recover; cannot recover for pure economic loss (ie: lost tourism due to PCP spill in Mississippi River) Arbitrary, bright-line cutoff that ensures predictability and consistency Allows for limited insurance rates

Vaughan v. Menlove

Vaughan v Menlove - objective standard to be applied in determining liability in negligence; do not "dumb down" the standard based on defendants mental capacity Bad policy to have jury decide on mental capacity—many people would claim that they are stupid or they didn't know better Case involving hay stacked on D's property. P warned him that it might catch fire and cause damage to P's neighboring land but D ignored. Hay caught fire and P sued D for negligence D argues that he acted to the best of his judgment and he shouldn't be held liable because he isn't that smart Ruled that the objective standard or care taken by a prudent and reasonable man should be the standard for determining negligence

Transferred Intent

Victim to Victim Tort to Tort ONLY for intentional torts that come from the old writ of trespass cases; may apply in the right case to conversion Policy Reason: who should bear the loss?

2. Lost Wages

Wages lost at time of injury easy to calculate if plaintiff employed at fixed wage More complicated calculation if plaintiff unemployed at time of injury

Vincent v. Lake Erie Transp. Co. (1910)

Where act is solely to benefit any person or to protect any property from destruction or serious injury the defense may be qualified (the actor must pay for an injury he causes) Defendant docked her boat during a storm to avoid her boat from being destroyed. The P's dock got destroyed because of this. D has to pay for damages for the dock because her property is not more important than the plaintiff's. Private necessity

Richardson v Chapman

While the Plaintiffs were stopped at a traffic light, their car was struck by a semi-trailer driven by Chapman, an employee of Tandem/Carrier. Plaintiff Keva Richardson suffered incomplete quadriplegia as a result of the accident. Plaintiff Ann McGregor suffered a laceration on her forehead which left a slight scar. The trial court directed a verdict in favor of the Plaintiffs on the question of liability. The jury returned verdicts in favor of Richardson and McGregor in the amounts of $22,358,814 and $102,215 respectively. The intermediate court rejected Defendants' challenges to the amounts of damages. Issue. Was the intermediate appellate court incorrect in determining that the damages awarded by the jury were excessive? YES award for damages deemed excessive if it falls outside the range of fair and reasonable compensation or results from passion or prejudice Compensatory damages for nonfatal injuries subject to review considering the following factors Permanency of plaintiffs condition Possibility of future deterioration Extent of medical expenses Restrictions imposed on plaintiff by the injuries

Unborn Children

Wrongful death actions do not apply to fetus'/stillborns → bright line cut off even though harm is foreseeable If injured in utero and born alive, can recover Mother can recover for injuries as a result of negligence in stillborn birth

Defense of Another Person

You have the ability to defend another in the same manner and under the same conditions as the person being attacked can defend themselves. Place yourself in the position of the person being attacked. BUT Mistaken Belief: the person being attacked wouldn't have the right to use self-defense but is the mistake belief is reasonable then a third party can assert the defense NY 35.15 applies here too

Anderson v Owens-Corning Fiberglass Corp

[Asbestos case] Manufacturer held to what is knowable - what is out there in scientific evidence Manufacturer must provide warning if it is or should be aware of dangers - not liable for dangers that are unknown to the community at the time of manufacturers

Friedman v. General Motors Corp

[P (Friedman) was waiting on line to purchase gas. When it was his turn to move forward, he turned the ignition key while the gearshift was in drive. The car leapt forward and the car ran wild, injuring him and 3 members of his family] To sustain their claim against the manufacturer, P was required to prove: The product manufactured and sold by D was defective The defect existed at the time the product left the factory The defect was the direct and proximate cause of the accident and injuries

James v. Wormuth

[P (patient) sues D (doctor) after he leaves a wire in her lungs during surgery] Res ipsa does not apply Need direct evidence to prove second element

HE Butt Grocery Co. v. Resendez

[P fell and slipped on a grape in the grocery store in a customer sampling display area] No direct evidence (D put grape on floor) P tries to argue Jasko method of sale but does not work - court ruled that the mere fact of a customer sampling display does not lead to negligence Grocery store even set it up in a way to minimize risk

Goddard v. Boston & Maine RR Co

[P fell on banana skin that was lying on the platform at D's station] No direct evidence (D put banana on floor) Inferential evidence too week -no constructive notice a passenger could have dropped it minutes before

Joye v. Great Atlantic and Pacific Tea Co

[P slipped on a banana peel at D's supermarket] No direct evidence (D put banana on floor) Inferential evidence weak - tried to mimic Anjou but there was not enough proof for constructive notice

Jasko v. FW Woolworth Co

[P slipped on a piece of pizza and was injured] Direct evidence No evidence that D dropped the pizza but... Method of sale ends up being direct evidence - wax paper as plates and standing only → negligence Inferential - no circumstantial evidence showing pizza had been there for a long time notice need not be shown when the store itself created the hazard

Ortega v. Kmart Corp

[P slipped on a puddle of milk at Kmart] Store owners owe a duty to exercise reasonable care in keeping the premises reasonably safe Ordinary care = reasonable inspection of the portions of premises open to customers P argues that Kmart was inspected frequently and the staff should've noticed it (circumstantial) Rule for pltf

Anjou v. Boston Elevated Railway Co

[P slips on banana peel] No direct evidence (D put banana on floor) Inferential evidence strong - the banana was completely black and proved that it was there for a while Constructive notice - gives rise to negligence action because a reasonable RR would have cleaned it up

Cruz v Daimler Chrysler Motors Corp

[P sues car dealership (D) when airbags deploy in his minivan when it is stationary] Res ipsa does not apply Defendant did not have exclusive control, no res ipsa Even where the act would not ordinarily occur without negligence, immaterial if defendant did not have exclusive control of the instrumentality

Hector v. Cedars-Sinai Medical Ctr

[P sues hospital after she is injured from the implantation of a defective pacemaker] Court rules that strict liability does not apply to the hospital for medical services As a provider of services rather than a seller of product, the hospital is not subject to strict liability for a defective product provided to the patient during the course of his or her treatment

Ney v Yellow Cab Co

[P's car was damaged when D (taxi driver) left his car unaccompanied and the thief stole it, Criminal crashed it into pltfs car, pltf sues the driver who had it stolen from him] It is up to the court to apply the criminal statute This case was debatable on the second prong (intended to prevent such injury)

McDougald v Perry

[Spare tire on the back of a car got loose and hit P's car causing an accident] Res ipsa applies Defendant did have exclusive control of loose tire on his car; wayward tire accidents do not occur without negligence - res ipsa applies Expert testimony not needed to establish inference of negligence where a safety chain holding spare tire was broken

Byrne v. Boadle

[barrel of flour fell on his head] Res ipsa applies Obviously the barrel was in exclusive control of D

Reynolds v Texas & Pacific Railway Co

[fat woman trips in unlit staircase] where the negligence of the defendant greatly multiplies the chances of accident to the plaintiff, and is of a character naturally leading to its occurrence, the mere possibility that it might have happened without the negligence is not sufficient to breach the chain of cause and effect between the negligence and the injury Defendant RR liable for failing to light stairway because lighting was substantial factor in P falling and injuring self

Perry v S.N. and S.N

[parents of sexual assault victims sue the bystanders who knew of the situation and didn't do anything] Fails the third prong (appropriate to apply) Court not required to accept penal statute as standard for civil action if not appropriate Appropriate to impose duty to report to authorities when someone has cause to believe a child's mental/physical health is adversely affected? NO → high social burden/too broad of a duty

Larson v St. Francis Hotel

[someone threw a chair out of a hotel window and it hit P on the head - P sues hotel] Res ipsa does not apply Where defendant does not have exclusive control, no res ipsa If others can have partial control (chair in hotel lobby), no exclusive control Circumstances of the case matter

Trespass to Land

act of physical invasion of land without authorization.

Derdarian v Felix Contracting Corp

acts of a third person intervening between defendant's conduct and plaintiffs injury do not automatically sever a causal connection "Where the acts of a third person intervene between the defendants conduct and the plaintiffs injury, the causal connection is not automatically severed...liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendants negligence" "If intervening act is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendants conduct, it may well be a superseding act which breaks the causal nexus" If intervening cause was not foreseeable, than the act supersedes the original negligence and the liability is cut off → no proximate cause Where the risk of the intervening act is the same risk which renders the actor negligent, no cause supersedes the other If intervening cause is criminal, the liability will most likely be cut off depending on if it was foreseeable

Martin v Herzog

adoption of statutory standard for civil action Statute requiring to drive with lights on at night on highway: Intended to protect class of persons like P injured on the highway Intended to prevent injuries such as that of P arising from D not using lights Contributory negligence of P failing to use lights as well = barred from recovery

Punitive damages

awards for an additional sum over and above the compensation of the plaintiff in order to punish defendant so as to make an example and deter others from engaging in similar tortious conduct Focuses on behavior of defendant rather than effects on plaintiff Generally require willful/wanton conduct, utter disregard, or maliciousness

NY 35.15

cannot use force if you are the initial aggressor cannot use deadly physical force unless you believe the other person is going to, or you reasonably believe that such person is committing or attempting to commit kidnapping, forcible rape, forcible sodomy or robbery or burglary.

L.S. Ayres & Co. v Hicks

common carriers, innkeepers and people in business relationships assume a duty to help based on special relationship of invitee/invitor Legal obligation to take affirmative steps to help one in peril when you are an invitor, or when the injury resulted from use of an instrumentality under the control of the defendant

BMW v Gore rule

constitutional limitations on punitive damages awarded by states The degree of reprehensibility of the defendants misconduct State has no right to award punitive damages for harms done outside the state and that are unrelated to the plaintiff The disparity between the actual or potential harm to the plaintiff and the punitive award 4:1 ratio generally appropriate; nothing higher than 9:1 generally deemed reasonable The difference between the punitive damages award from the jury and the civil penalties imposed in comparable cases

denny v. ford motor

core element of "defect" subtly different in cause of action for products liability vs cause of action for breach of implied warranty of merchantability Breach of warranty focuses on expectations for performance "purchaser's disappointed expectations" Inquiry into whether the product was fit for ordinary purpose No regard for feasibility of alternative designs Could have same result, but not the same cause of action Products liability looks to the concept of whether the product is "reasonably safe"

Enright v Eli Lilly

cut off of liability of DES cases to restrict the number and relieve burden on courts Generational cutoff - granddaughters of DES victims cannot recover - Hymowitz not expanded to other plaintiffs

Delong v Erie County

decision to have 911 services a governmental function; creates a duty that operators/complaint writers will act with reasonable care - government vicariously liable for employee's negligence in writing down addresses/information

MacPherson v Buick

effectively overrules Winterbottom in relation to products liability cases If the nature of the product is such that it is reasonably certain to place life or limb in peril when negligently produced, such is a thing of danger (foreseeability) If the thing of danger will be used by others than the original purchaser (ie: consumers buying from a retailer), the manufacturer under a duty to produce with care Avoids creating immunity for manufacturers who only have K with retailers and not ultimate customer Refutes privity of contract defense in relation to products liability

design

entire product line challenged

"But for" test

event would not have occurred but for the negligent conduct Negligence not actionable unless a cause-in-fact harm for the recovery sought

Superseding causes

extraordinary, non-foreseeable intervening

"warning" defects

failure to warn of certain dangers - analytically the same as negligence

Robinson v Lindsay

general rule = minors held to same standard as reasonably careful child of same age, intelligence, maturity, training and experience under the circumstances Duty to act in same manner reasonable child would; standard subjectified Exceptions: held to adult standard when: Engaging in inherently dangerous activity Engaging in activity normally for adults only

J.S. and M.S. v R.T.H.

generally no duty to report to authorities suspicions of conduct endangering welfare of a child (see Perry); exceptions where there is a special relationship Where defendant has relationship with a 3rd party who injures another, duty to warn attaches -- D has a special relationship with the criminal "Particularized foreseeability" - particular knowledge or special reason to know that a particular plaintiff or identifiable class of plaintiffs would suffer a particular type of injury

Hodges v Carter

good faith and honest belief that acts were well founded (serving process via mail) based on the circumstances (customary practice) means no liability for legal malpractice Legal malpractice depends on circumstances (specific field of law)

Anderson v Sears Roebuck & Co

he Plaintiff, Helen Britian (Plaintiff), was severely burned as a young child when her home was destroyed by a fire. The blaze was caused by a heater negligently manufactured by the Defendants, Sears and Controls Company of America (Defendants). The jury awarded plaintiff $2,000,000 in compensatory damages. Defendants moved for remittitur. Issue. Was the trial court correct in determining that the verdict of the jury did not exceed the maximum amount which the jury could reasonably find based on the maximum recovery rule? YES maximum recovery rule: trial judge can determine whether the verdict of the jury exceeds maximum amount which the jury could reasonably find; if so, judge may reduce verdict to highest amount that the jury could have properly awarded court must look to each element of the damages involved in the case, including (but not limited to): 1. Past physical and mental pain 2. Future physical and mental pain 3. Future medical expenses 4. Loss of earning capacity (past and future)-- deft can offer evidence of taxes and stuff to the court without the jury present 5. Permanent disability and disfigurement Party generally entitled to attend the trial and excluded only if there is disruptive conduct Plaintiffs presence not usually a factor in inflaming or prejudicing the jury

State Farm Mutual Automobile Ins. Co v Campbell

if conduct of employee ratified by the employer, employer can be vicariously liable for punitive damages as well as compensatory

Voss v Black & Decker**

if design defect were known at the time of manufacture, reasonable person would conclude that the utility of the product did not outweigh the risk inherent in marketing the product designed in that manner; liability attaches if "not reasonably safe" Manufacturer of a defective product is liable to any person injured or damaged if the defect was a substantial factor in bringing about his injury or damages, provided: At the time of the occurrence the product is being used for the purpose and in the manner normally intended That if the person injured or damaged is himself the user of the product he would not by the exercise of reasonable care have both discovered the defect and perceived its danger, and That by the exercise of reasonable care the person injured or damaged would not otherwise have averted his injuries or damages Burden on plaintiff to present evidence that the product was not reasonably safe and that it was feasible to design a safer product (alternate design) Defendant can present evidence as to the burden of alternate designs Question for the jury to decide whether reasonably safe or not based on balancing the risks (gravity and probability) against the utility and cost (burden) Factors to consider: Utility to the public as a whole and the individual Nature of the product (likelihood of injury) Availability of a safer product Ability of the plaintiff to avoid injury Potential for designing a safer but functional and reasonably priced product Degree of awareness of potential danger on part of plaintiff Manufacturers ability to spread the cost related to improving the safety of the products design doesn't adopt 402A verbatim but comes to the same result

Boyce v Brown

local standards of physician care applied based on expert testimony; occurs in 1930s - very few doctors in the area

Liriano v Hobart Corp

manufacturer has duty to warn of certain types of dangers Latent dangers that result from foreseeable use of product that is knew or should have known Dangers from unintended uses of the product if such are foreseeable Duty to warn extends to post-sale period as well No duty to warn for open and obvious dangers Generally a jury question whether danger is open/obvious or latent Ex of obvious danger: knives ability to cut finger

Product Defects

manufacturing, design, warning

5. Future Inflation

must jurisdictions have recognized need to adjust for expected future inflation in some way, but no consensus as to proper means to account for inflation; varies by jurisdiction

Morrison v MacNamara

national standards based on Board certification/accreditation standards set the level of care required for doctors; locality rule of Boyce not followed

The Professional

negligence = malpractice held to a higher standard use expert testimony to figure out if they committed malpractice

Scott v Bradford

new duty of physicians to properly inform patients of risks associated with treatment "informed consent" → patient has right to be able to make a decision about procedures on their own body; must be notified of risks and alternatives Not covered by a routine consent form

non economic losses

no reduction for "present value" Physical Pain and Suffering, Mental Anguish Plaintiff may recover for pain and suffering before the trial and any suffering reasonably certain to result from the injury in the future No fixed standard by which damages can be measured for pain, suffering and mental anguish Question left to the jury and subject to control by the court if there is multiple defendants culpable, the pltf cannot decide who pays what, they all pay equally

Indiana Harbor v American Cyanamid

no strict liability imposed for the manufacturing of hazardous chemicals or for the transporting of such chemicals, even though they are very dangerous; negligence regime can deal with these issues Policy concerns: if shippers and transporters held liable, there would be no economy for hazardous/toxic materials Specific activities held to be abnormally dangerous (but not always): Blasting Transportation and storage of toxic chemicals and inflammable liquids Pile driving Crop dusting Fumigation with toxic gases Testing of rockets Fireworks displays Operation of plutonium production facility Operation of hazardous waste disposal sites Operation of oil wells Storage of large quantities of water and other liquids

Heath v Swift Wings, Inc.

one who engages in a business, occupation, or profession must exercise the requisite degree of learning, skill, and ability of that calling with reasonable and ordinary care Bringing in of expert testimony to establish standard of care (ie: pilots)

Morgan v State of NY

participants in sporting or recreational activities assume commonly appreciated risks which are inherent in the sport or activity and flow from participation Participants do not assume risk of intentional conduct Defense does not apply when the dangers or risks of the sport are concealed or unreasonable increased

Roberts v State of Louisiana

physical attributes of the defendant applied to the reasonable person in assessing negligence; physical aspects subjectified Blind defendant held to standard of reasonable blind person Conduct must be reasonable with knowledge of defendants infirmity

Riss v New York

placement of police stations and precincts a governmental function, so state immune from liability stemming from those decisions Burden too high to impose duty on police to affirmatively handle all threats made, especially in a populous city Allocation issue: putting resources into this issue would detract from other situations that really need police attention If duty undertaken by active policing/investigation, duty of reasonable care attaches Depends on the circumstances

Hennigsen v Bloomfield Motors, Inc

privity of contract does not apply in implied warranty actions; implied warranties run to the consumer Disclaimers of warranty allowed in some circumstances; invalid where they create a contract of adhesion Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable, but limitation of damages where the loss is commercial is not Warranties extend to certain 3rd parties beyond the privity of K via UCC and Uniform Sales Act Buyer must within reasonable time after discovering the breach of warranty notify the seller otherwise he is barred from any remedy (UCC)

Summers v Tice

problem of identifying which defendant caused the harm Both defendants negligent in firing gun towards P, but unclear as to which actually hit him and caused eye injury Court holds both jointly and severally liable → Alternative Liability Each negligent Injury resulted from that negligence Policy reason - rather than let defendant possibly escape liability by holding neither or only 1 liable, if both are liable, justice is served Defendants can appropriate between themselves the contribution for damages

Becker v. Schwartz

regardless of foreseeable risk of harm created by negligence, policy concerns require cutoff Recovery in "wrongful life" action too speculative - law has no competence to resolve the issue of value of impaired life vs non-life; calculation of damages for non-existence impossible No recovery for emotional damages in "wrongful life" action because such are incalculable Recovery allowed for expenses incurred as a result of malpractice, because costs are ascertainable Pecuniary expenses quantifiable, but limited to the minority of the "wrongful life" victim (<21) Wrongful life is not a COA you can recover for because the court cannot calculate impaired life v. non-life Can recover for expenses incurred as a result of malpractice

Independent Contractors

right to control test

Frye rule

scientific evidence admissible if based on a scientific technique generally accepted as reliable within the scientific community Still retained in NY

Tarasoff v Regents of University of California

special relationship between therapists and patients attaches duty to warn of harm to others due to particularized foreseeability based on knowledge as the psychiatrist, but not a duty to confine/detain the patient Therapist need only exercise "that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of that professional specialty under similar circumstances Countervailing policy interests: Public interest in safety from violent assault where patient has made such threats Preserve integrity of doctor/patient confidentiality and maintain treatment

Zeni v Anderson

statute = unlawful for pedestrians to walk upon main road where sidewalks are provided; P violated statute by not complying and walking on road BUT, if P had legally sufficient excuse (acted reasonably), can rebut negligence Question for jury to decide

Bovsun v. Sanperi

where defendant negligently exposes the plaintiff to unreasonable risk of bodily injury (plaintiff within the zone of danger), plaintiff can recover damages for injuries suffered in consequence of observation of serious injury/death of an immediate family member

Intentional Infliction of Emotional Distress Damages

you must prove damages No need for physical harm Must show severe and substantial emotional harm Severe emotional distress: distress so severe that no reasonable person could be expected to endure. This limits it. This element can completely bar recovering not just limit the recovery. Testimony from doctor or expert would be helpful.