Torts Final
Situations where strict liability is present
Abnormally dangerous activities.
Duty to control third parties - Business Proprietor and Invitee - Specific Harm Rule
Business generally owes no duty to protect invitees from third persons wrongful acts Duty will arise if the proprietor is aware of specific harm about to befall a particular invitee The business owner does not have to do anything until they are on notice that this particular harm is after one person
Distinction between governments discretionary function and ministerial function
D: Which involves conduct related to the exercising of reasoned judgment M: Involves conduct related to the adherence to a governmental rule There is no qualified governmental immunity for ministerial functions
Modern Version of Duties for owners/occupiers Fall into one of 3 kinds - Combo of Invitee/Licensee
Drawing a distinction between those with the permission of the possessor to be on the land and those who do not have permission, lawful as opposed to unlawful visitors. We conclude that we should eliminate the distinction between licensees and invitees by requiring a standard of reasonable care for all lawful visitors." For our purposes, this duty also extends to active negligence for licensees and invitees
What is required for a valid negligence claim to arise?
Duty Breach of Duty Causation Proximate/Legal Cause Damages
Palsgraf 2 Views
Duty is owed only to foreseeable plaintiffs Duty of reasonable care owed to everyone
Obligations of Owners or Occupiers of Real Estate
Duty owed depends on the status of the person who was on the property Status of a person can change based on where they are on the premises They could be an invitee in some areas, but a trespasser in others.
Duty Arising from reasonable reliance
Duty to assist can arise if the victim reasonably relies on the actor's promise or representation to act a certain way
How to determine if duty has been beached
Establish what the SoC was Show the conduct was unreasonable - If probably of harm and severity of harm suffered outweighs the burden of preventing the harm, a breach has occurred Show affirmative course of action that had it been taken would have prevented/mitigated (has to be reasonable)
Active negligence
Involves situations where the defendant's conduct causes the harm, as opposed to the defendant's failure to prevent the harm
Proximate Cause - Direct Causation Test - Probabilistic recovery for harm in the future
Issue arises when the D's negligence has created the risk that the P will suffer from either more serious harm or another type of harm as a result of the initial exposure. The most common response has been to tell the P to sue for the 2nd disease when it develops.
circumstantial evidence
Evidence that tends to prove an asserted fact by proving other events or circumstances that, according to common human experience, usually or always attend the asserted fact, thereby supporting an inference that the asserted fact is true.
Duty to exercise reasonable care in assisting another
If an actor voluntarily undertakes to rescue or assist another, whether graciously or for compensation, the actor generally has a duty to exercise reasonable care under the circumstances to avoid, or injuring further, the person assisted.
Intervening Forces - Increased Risk of Harm
The defendant's action may not injure the plaintiff immediately, but may leave the plaintiff more exposed to risk from a separate intervening force, whether foreseeable or not, such as an extraordinary force of nature.
legal reasoning
The process of reasoning by which a judge harmonizes his or her decision with the judicial decisions of previous cases. Hammontree - Reason to argue your client's situation is analogous to a prior case decided by higher courts is to demonstrate that the law in this instance favors your client Courts respect precedent (stare decisis)
Where negligent misrepresentation harm occurs
To the other or To such third persons as the actor should reasonably expect to be put in peril by the actions taken
Bodily Harm
any physical impairment of the condition of another's body, or physical pain or illness
Secondary Assumption of Risk
plaintiff deliberately chose to encounter a known risk and in doing so acted unreasonably
requirements for battery
1. Act must be volitional and not unconscious 2. MUST be intentional 3. Intended contact must be either harmful or offensive to the victim 4. Act must cause a contact with the victim or something closely associated with the P.
Proximate Cause - Direct Causation Test - Unforeseeable. Extent of Injury
"thin-skulled Ps" - D is liable for full extent of P's injuries. Note that latent condition would almost certainly have lowered the P's life expectancy, thus reducing damages that the D must pay for future years, or should P die, for wrongful death.
Actual Cause - Substantial Factor Test
(1) multiple forces combined simultaneously to cause a victim's harm, (2) any one of the forces would have been sufficient by itself to cause the harm, and (3) it is impossible to tell which force caused what portion of the harm If an actor's negligence was a substantial factor in causing the harm, then that negligence will be treated as the actual cause of the injury, notwithstanding any other independent forces.
Individualist Perspective
(Think republican) A perspective that views human beings as acting primarily in accordance with their own interests Economic Freedom Competition - Individuals are going to compete for almost everything Private Property - If you own your own property, you can do whatever you want with it Self Interest - People do things that are going to better themselves Everyone actually ends up winning Rights and Freedoms - Freedom and ability to practice whatever you want Rule of Law - Law is what governs society - Society can only achieve through this Hold those who are responsible for their actions - Contributory negligence - Sort of like an eye for an eye
collective perspective
(think libertarian) Based upon the best interest of society Broad on that can cover many different interests Wants to include a group of people Focuses on group success Economic equality - Maybe there should not be a massive gap - Everything should be a little more equal Public property - Equally accessible by all - Comes from the equality Cooperation - Working together is the best way to get to an end goal Adherence to collective norms - People are going to go along with what the government says is good - Like wearing masks Collective interest - Importance of doing things for the benefit of society as a whole Collective responsibility - The entire group is targeted to help make a change Individual could have avoided the harm by complying with the community norm - Ability to avoid the harm is the basis of liability
Firefighter Rule
- Emergency professionals who are injured while performing their duty cannot bring a negligence action -has been abolished justifications - Assumption of risk by profession - Higher compensation in the form of a risk premium - Professional rescuers on private land are owed only the lesser duty due to licensees - Professional rescuers who are provided workers' comp funded by tax dollar should not be able to sue their employers in tort
Tunkl Factors
1 - business that is suitable for public regulation 2 - matter of practical necessity for some of public 3 - ∆ provides service to anyone who seeks it 4 - imbalance of bargaining power/no choice but to accept 5 - adhesion contract w/no option to pay for more rights 6 - π places under control of ∆ 7 -π's safety subject to rick of carelessness by ∆
An actor is subject to liability for assault if
1) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension (perception or anticipation of a blow) of such a contact, and 2) the other is thereby put in such imminent apprehension. Fear is not required!
Elements of Res Ipsa Loquitur
1. The plaintiffs injury was caused by an accident that would not normally have happened without negligence 2. The thing causing the injury was within the exclusive control of the defendant 3. the plaintiff did not provoke the accident
Requirements for Assault
1. defendant intended to cause harm 2. plaintiff felt reasonable apprehension of immediate harm 3. lack of consent by Plaintiff
joint liability
2 or more individuals who either (1) act in concert to commit a tort (2) act independently but cause a single indivisible tortuous injury or (3) share responsibility for a tort because of vicarious liability. Will be sued together
Intervening Causes
A cause which interrupts the natural sequence of events, turns aside their cause, prevents the natural and probable results of the original act or omission, and produces a different result that could not have been reasonably foreseen.
exculpatory clauses
A contractual provision that shields a party from liability for its own negligence or wrongdoing.
Assumption of Risk Defense
A defense against negligence that can be used when the plaintiff was aware of a danger and voluntarily assumed the risk of injury from that danger.
Immunity - Charitable Immunity
A doctrine that provides charitable institutions with immunity from tort liability.
Last Clear Chance Doctrine
A doctrine used by a plaintiff when the defendant establishes contributory negligence. If the plaintiff can establish that the defendant had the last opportunity to avoid the accident, the plaintiff may still recover, despite being contributorily negligent.
Immunity - Parental Immunity
A judicial doctrine that prohibits a child from bringing suit against his or her parents.
Contributory Negligence
A legal defense that may be raised when the defendant feels that the conduct of the plaintiff somehow contributed to any injuries or damages that were sustained by the plaintiff. At common law effect, P's contributory negligence was an absolute and complete bar to recovery.
Primary Assumption of Risk
A plaintiff understands and voluntarily agrees to accept the inherent risks of an activity
Superseding Cause
An intervening force or event that breaks the connection between a wrongful act and an injury to another; in negligence law, a defense to liability. Makes it so attenuated = not right to hold defendant liable
Reasonable Prudent Person
A standard of care that indicates what a person of prudence and reason would have done under the circumstances at issue Knowledge, experience, and perception Held to know what a reasonable person should have known If an actor has superior knowledge, intelligence, ability, or judgment, they will be held to that standard
adhesion contract - limitation to AoR
A standard-form contract in which the stronger party dictates the terms.
Dram Shop Acts
A state statute that imposes liability on the owners of bars and taverns, as well as those who serve alcoholic drinks to the public, for injuries resulting from accidents caused by intoxicated persons when the sellers or servers of alcoholic drinks contributed to the intoxication.
Different Approaches to Parental Immunity - Reasonable Parent Test
A test for determining whether a parent has breached the applicable standard of care, under which the parent's conduct is judged by whether a reasonable and prudent parent would have acted the same way in a similar situation.
assault
A threat or use of force against another person so as to instill in such person a reasonable fear of imminent harm.
History of negligence law
Accepted traditional theory of the history of negligence actions is that is developed out of trespass actions
Abnormally Dangerous Activities factors
Activity creates a high risk of significant harm that is foreseeable Activity is not a matter of common usage, or is not commonly carried on, in the local community or area Plaintiffs injury flows almost solely from the aspect of the activity that makes it abnormally dangerous and must not depend on the actions of person other than the defendant engaging in the activity
Duty arising from contract
Actor owes a duty of care to avoid unreasonable risk of harm to others
Transferred Intent Torts
Actor tries to batter one person and actually causes a harmful or offensive contact to another. Transferred intent may be invoked in cases involving: (1) assault; (2) battery; (3) false imprisonment; (4) trespass to land; or (5) trespass to chattels.
Intervening Causes - Foreseeable results of negligent conduct
Almost always foreseeable Might defeat proximate cause if they are not reasonably foreseeable. If they are foreseeable, and especially if the defendant's conduct foreseeably increased the plaintiff's risk of harm from the intervening force, then proximate cause will not be defeated
Good Samaritan Doctrine
Although a person is not obligated to come to the aid of another, once assistance is attempted, the good samaritan has the obligation to do no harm.
Actual Cause - Concurrent Causation Test
An act or omission that, in combination with the acts or omissions of other parties, directly caused an injury that would not have occurred in the absence of the acts or omissions of any contributory party.
Duty if actor places victim in helpless peril
An actor may render the victim helpless to protect herself against a reasonably foreseeable risk of future harm If the actor has reason to know of peril, then the actor owes the victim a duty to use reasonable care to prevent the foreseeable harm
Express Agency - vicarious liability
An agency relationship created by oral or written agreement between principal and the agent.
Intervening Forces - Unforeseeable Force of Nature
An unforeseeable force of nature, which accelerates or increases the harm that was a reasonably foreseeable risk of the defendant's conduct, will not be a superseding cause.
Assumption of Risk - Defense to Strict Liability
Any voluntary encountering of a known risk may prevent the P's recovery. a. Determining "voluntariness" - Where the D's activity is carried on in part for the P's benefit is usually implied - but only to bar strict liability
Liability of Governmental Entities - Sovereign Immunity
Applies only to the federal government, the state governments, and their agencies.
Factors in Evaluating Reasonableness of Alternative Actions - Cost Benefit Analysis
Benefit to plaintiff and society for proposed alternative conduct Costs and burdens on defendant and society
Duty to control third parties - Business Proprietor and Invitee - Totality of the Circumstances
Business must protect invitees from third persons wrongful acts if the proprietor could reasonably foresee that invites could fall victim to third parties wrongful acts on the premises Considers: Nature, frequency, extent of prior crimes Any other factor that may affect the foreseeability of crimes on the premises Condition, nature, location and any other crimes in the area
Role of Statues
Can establish that the SoC D was required to meet if the statute in question is (1) designed to protect the class of people of which the injured party is a part, and (2) designed to prevent the type of harm suffered by the injured party. If a P can prove the 2 above, courts will treat statute as SoC If P cannot prove, SoC is back to RPP
Divisible Injuries - Joint Liability
Can tell which defendant caused which injury Each individual D is responsible for the harm from the discrete injury each defendant caused
Ingredients for Successful Invocation of GSD
Care rendered was performed as the result of the emergency Initial emergency or injury was not caused by the person invoking the defense Emergency care was not given in a grossly negligent or reckless manner
Limitations to Negligence per se
Causal Link Accident violations Probably doesn't count Purpose of statute matters Technical problems Obsolete laws
Traditional theory of the history of negligence law asserts that the case of Brown v Kendall ushered in the modern era
Changed the standard of care of the D from extraordinary care to ordinary care Also placed a burden on the P to establish the facts that are essential to their recovery Heavy burden of proof was muted somewhat with the development of the doctrine of Res Ipsa Loquitur Normal explanation is that this change was made to reduce the potential liability of the emerging industries that were part of the industrial revolution
Negligence
Conduct that falls below the expected standard of care that a reasonably prudent person would have exercised under like circumstances. Makes us legally responsible for the harm we accuse to other people if we are not as careful as we should be
Offensive contact
Contact which is offensive to a reasonable sense of personal dignity
Defenses to Strict Liability
Contributory Negligence, Assumption of Risk, Trespassers
Factors in Evaluating Reasonableness of Alternative Actions - Court based factors
Cost of making the risky activity safer Social usefulness of the activity that produced the risk Probability that some harm will result from the activity Degree or scope of harm suffered if harm actually occurs ALL WE REALLY EXPECT FROM A DEFENDANT IS THAT REASONABLE CARE UNDER CIRCUMSTANCES
Duties of landlords and duties of owners or occupiers of land on criminal or violent assaults by third parties
Criminal assaults by 3rd parties neither deal with conditions of the premises nor active negligence There was no duty to protect against criminal or violent assaults by 3rd parties Posecai Duty to take steps to prevent criminal or violent assaults by third parties on invitees on the premises could extend to those on the land based upon which version of the modern approach of foreseeability is used Court imposed a duty when the criminal act was reasonably foreseeable to the owner/occupier of the real estate
Role of Custom
Customary conduct of the industry, profession, community, or some other relevant group relevant to determining if D breached but not determinative May show that D had notice of the risk, risk is unforeseeable unless customary precaution is taken, or that a particular safety precaution is feasible Courts typically view as evidentiary only
Intervening Forces - Crimes and Intentional Torts of Others
D's conduct reasonably foreseeably puts the P at an unreasonable risk of criminal aggression, under unusual circumstances where the defendant should realize that his or her conduct creates an opportunity, temptation, and inducement to such conduct, OR The special relationship between the plaintiff and the defendant gives rise on the part of the defendant to use reasonable care to protect the plaintiff from the crimes and intentional torts of third persons.
RPP - Physical Characteristics
Deemed to possess and be aware of the physical characteristics they have and will be held to the standard of someone in their state Blind person must behave reasonably for a blind person Person will exceptional strength will be held to the standard of someone with exceptional strength
Duty of active negligence
Defendant owes a duty of care to all persons who are foreseeably endangered by his conduct with respect to all risks that make the conduct unreasonably dangerous
Take the defendant as you find them
Defendant will be liable for the full extent of the harm caused, so long as the general type of harm was foreseeable
Indivisible Injuries - Joint Liability
Defendants will either be held severally or jointly liable
Indirect Causation Test - Rules focusing on nature of intervening act
Dependent intervening forces - An act of a 3rd person or an animal that is a normal response to the situation created by the D's negligent act. They are deemed foreseeable and will not relieve the D of liability for the harm caused if they lead to foreseeable results. Response must be normal, not highly unusual!!! Independent intervening forces - One that operates upon the situation created by the D's negligent act but which is not a response or reaction thereto. D will remain liable for the foreseeable results of his act unless the force is unforeseeable, intentionally tortuous, or criminal act.
Proximate Cause - Direct Causation
Direct causation means that there were no intervening forces operating between D's conduct and P's injury.
Rescue Doctrine
Doctrine under which anyone who negligently causes harm to a person or property may be liable to one who is injured in an effort to rescue the imperiled person or property
RPP - Mental Capacity
Does not affect standard of care Will be held to the normal reasonable person standard
Indirect Causation Test - Rules focusing on results of D's negligence - Foreseeable results produced by unforeseeable intervening forces
Does not excuse D. Liability is usually imposed even though the harm occurred in a totally unexpected way. Acts of God - Not considered superseding causes where they lead to the result threatened by the D's original negligence. Unforeseeable criminal or tortuous act - where the ultimate result was nonetheless foreseeable, the D's liability may turn on the culpability of the intervening act. Third person's failure to prevent harm - Does not relieve the D of liability, even though 3rd person is under some legal duty to act.
RPP - Activities requiring skill
Engages in an activity requiring a certain skill or knowledge, you will be held to the standard of someone reasonably skilled and knowledgeable Not the actor's knowledge or skill Regardless if it is higher or lower
Express Agreements
Even if the release itself is valid, the ability of adults to sign releases that bind members of their family is in serious doubt.
Indirect Causation Test - Rules focusing on results of D's negligence - Unforeseeable results produced by foreseeable intervening forces
Even though an intervening force may be foreseeable, some courts will terminate the D's liability if the result was unforeseeable, while others would nevertheless impose liability. Similar to the Polemis-Wagon Mound debate.
Proximate Cause - Indirect Causation Test
Even though an unforeseeable force has intervened, D will generally be liable for the harm where the negligent act produces a foreseeable result. In a few exceptional cases, D may be liable when both intervening force and result are unforeseeable.
Limitation - intentional torts
Even where valid, they are never used to excuse a tortfeasor from liability for intentional torts.
Res Ipsa Loquitur with multiple defendants
Exclusive control rule ordinarily precludes use In few cases, each D is required to prove they were not negligent If there are multiple Ds but their relationship made them jointly responsible for the instrumentality of harm at time of harm, or one could be vicariously liable for the other, it can be applied
When the duty to exercise reasonable care in assisting another is breached
Failing to use reasonable care to secure victim's safety or Discontinuing aid or protection that leaves the victim worse off
Duty
Foundational element of negligence. A moral or legal obligation; a responsibility to use reasonable care
Vicarious Liability - Independent Contractors
General rule is one who arranges for an independent contractor to do work is not liable for the negligence of the contractor Situations where retaining an independent contractor will not insulate a party from vicarious liability - non delegable duties - apparent authority - inherently dangerous activities/peculiar risk of harm -illegal activities
Duty when Providing Alcohol
Generally courts do not impose a duty on a social host running a third-party victim when the social host serves alcohol to a minor or a visibly intoxicated person who then injures the victim because of the intoxication Business Owners are held responsible when they serve alcohol and then they go out and hurt another person
Duty to control third parties - Common Carriers, Innkeepers and Guests
Generally owe a duty to use reasonable care to protect their passengers and guests from third party wrongful acts.
Duty to control third parties
Generally, no duty to control conduct of third party as to prevent harm to another Duty may arise if there is a special relationship between actor and victim or actor and third person who harms the victim
Intentional Torts
Harm caused by a deliberate action
Elements of Negligence Per Se
Have to have statute; violation of statute; plaintiff must be within the protected class; of the type of harm it was intended to protect against and no justifiable excuse
RPP - Minors
Held to the standard of care a child of their same age, intelligence, and experience under the circumstances would be Exception is when a child engages in adult or inherently dangerous activities They will then be held to the adult RPP Children under 5 are conclusively presumed to be unable to comprehend risk sufficiently to be held negligent
prima facie case - statutory standard of care - Exception - P member of class needing special protection
If it is shown that the P is a member of a special class sought to be protected by the statute - so that the statutory objective would be defeated if the P's fault were held to be a defense - the P's violation of the statute may be disregarded.
When the duty to exercise reasonable care in assisting another to rescue
If the actor creates the need for rescue A special relationship exists between the actor and victim Or the victim reasonably relies on the actor's promise to rescue
Other courts will treat the statute as establishing negligence per se, but allow certain excuses for non-compliance:
Ignorance of need - D unaware of the particular occasion for compliance. Reasonable attempt to comply Emergency Greater risk of harm - Compliance would have involved a greater risk of harm to D or 3rd party.
Modern Version of Duties for owners/occupiers Fall into one of 3 kinds - California Version
Imposed a duty upon the owner or occupier of real estate that in the management of their property they must act as a reasonable person in view of the probability of injury to others. This includes a duty to refrain from active negligence. A person being an invitee, licensee, or trespasser could affect the foreseeability of injury, but the duty is a unitary duty without reference to categories. For our purposes, this also includes a duty not to harm through active negligence
Using Duty to Limit Liability
Imposition of duty is a matter of public policy Only need to see the foreseeability factor Dealing with situations where the defendant's conduct caused the harm so there could normally be a duty
Actual Causation
In a tort claim, the plaintiff must demonstrate that his or her injuries were actually caused by the defendant's actions.
Implied Assumption of Risk - Secondary
In absence of any K, the issue is whether the P, by conduct, can be held to have voluntarily assumed the particular risk involved.
How courts split the rule of res ipsa loquitur
Inference of negligence - P must prove D's negligence outweighs other possible causes of injury Rebuttable presumption of negligence - Burden is shifted to D who must prove their negligence did not cause the injury
What judges consider in deciding whether to impose a duty in a given case
Judge's sense of morality, foreseeability and extent of likely harm from the D's conduct, the burden the new duty will impose on D, alternative ways of protecting the P's interest, increased safety likely to arise, and admin problems for courts enforcing the duty
Historical changes in the tort system
Schwarts - Reinterpretation of the traditional history and find aspects of fault were under appreciated Rabin - The fault system generally did not find anyone liable, but now liability has expanded greatly Posner - Argues that you will find judges were engaged in an economic analysis
Modern Approach to Common Law status trichotomy
Landowners must use ordinary care to keep land safe Has a duty to warn of all unknown conditions
Res Ipsa Loquitur
Latin for "the thing speaks for itself," an evidentiary doctrine providing that, under certain circumstances, the very fact that an accident occurred leads to an inference that the accident was caused by negligence. Way to prove breach without knowing exactly what the breach was or what the actual negligence cause was
Proximate Cause
Legal cause; exists when the connection between an act and an injury is strong enough to justify imposing liability. A defendant should only be held responsible for those harms that arose out of the particular risks that a reasonable person in the defendant's position should have been able to foresee arising from his conduct
Vicarious Liability
Legal doctrine under which a party can be held liable for the wrongful actions of another party.
stare decisis
Let the decision stand; decisions are based on precedents from previous cases - Protects the interests - Reduces incentives - Fosters even handed decision making - Contributes to the actual and perceived integrity - Restrains judicial hubris and reminds us to respect the judgment of those who have grappled with important questions in the past system
Proximate Cause - Direct Causation Test - Compare
Manner of occurrence is irrelevant unless the sequence was "highly extraordinary" where courts are split.
Negligence Per Se
Meaning "negligence in itself," conduct that is deemed to be negligent as a matter of law without requiring proof that the actor breached a duty of care.
Liability of Governmental Entities - Qualified Governmental Immunity
Means that the government is immune for liability when exercising its discretionary function unless the decision is plainly inadequate or there is no reasonable basis for the decision Purpose is to respect the decision making of governmental officials.
Alternative Causes Doctrine
Multiple defendants will be negligent under circumstances where the plaintiff will prove that one of the defendants caused the plaintiff's injury, but will be unable to prove which one. In these cases, once the plaintiff proves that one of the several defendants must have caused the injury, the burden will shift to each possible "causer" to show that the causer's particular act of negligence was not the actual cause
Implied Assumption of Risk - Knowledge of specific danger
Must be shown that the P was aware of the particular risk by which she was injured, not merely of danger generally.
Duty to control third parties - Business Proprietor and Invitee - Prior Similar Interests
Must protect invitees from third persons wrongful acts if there is sufficient evidence of past crimes on or near the premises, that the proprietor could reasonably foresee similar crimes in the future Factors to include: Nature Frequency Extent of prior crimes
Implied Assumption of Risk - P must fully appreciate the risk
No assumption of the risk where due to age or inexperience, the P does not in fact comprehend the hanger, even though a reasonable person might have.
Types of intervening forces
Negligence of Others Foreseeable Responses of Others Increased risk of harm Unforeseeable Force of Nature Crimes and Intentional Torts of Others
Joint liability - independent acts
Neither A or B aided or encouraged the other to commit a tort, but their independent actions caused the P to a single indivisible injury.
Exception to implied AoR
No assumption of risk where P is member of statutorily protected class A P who is a member of that class is deemed legally incapable of assuming the risk, either expressly or by implication
Proximate Cause - Direct Causation Test Exceptions
No liability for certain foreseeable results Unusual manner - Some courts and the Restatements, refuse to impose liability on the negligent D where, from hindsight, the result - although foreseeable - has come about in a "highly extraordinary" manner. NY Fire Rule - D carelessly fails to control a flame or sparks in a populated area. It is foreseeable that the fire will spread to adjacent buildings, but the NY court has held that expansion of the fire beyond the burning of the first building is not "foreseeable." Rationale: Liability of this type could extend indefinitely.
Contributory Negligence - Strict Liability
Not a defense to strict liability unless the plaintiff knowingly and unreasonably subjected himself or herself to the risk from the abnormally dangerous activity
Indirect Causation Test - Rules focusing on results of D's negligence - Unforeseeable results produced by unforeseeable intervening forces
Not liable
Actual Cause - "But For" Test
One of the standards used to determine whether the defendant's negligence caused the plaintiff's injury; "but for" the fact that the defendant was negligent, the plaintiff would not have been injured.
Trespasser
One who enters upon or remains on the property without privilege or consent of the owner Owner occupier DOES NOT owe a duty to the trespasser with regard to negligent harm resulting from a condition of the premises or to prevent the trespasser from being injured as a result of their own negligence
Negligent Misrepresentation
One who negligently gives false info to another is subject to liability for physical harm caused by action taken by the other in reasonable reliance upon such info
Licensee
One who the owner permits to enter upon or remain on the property with the possessor's consent, express or implied for their own purpose Social guest Duty for the premises is to warn the licensee of hidden dangers that the possessor is aware of but the licensee is not likely to discover. More modern approach is to impose the duty Duty to no harm willfully or wantonly
Undertakings
One who voluntarily undertakes to care for, or to provide relief or assistance to, an ill, injured, or helpless person is under a legal obligation to use reasonable care and prudence in what he does.
Good Samaritan for Owners/Occupiers
One who voluntarily undertakes to rescue a distressed person must act with due care. There is a special relationship that runs from those who are on the premises because the possessor of land holds it open to the pubic or those in a custodial relationship Others would not have a special relationship = No duty to come to their aid
prima facie case - statutory standard of care
P must comply with statutes enacted for her own protection, and if not, the violation will necessarily affect her claim.
prima facie case - general standard of care
P's conduct is always measured by what the reasonable person would have done under the same or similar circumstances.
Implied Assumption of Risk - voluntary assumption
P's conduct must likewise manifest a voluntary choice to encounter the risk involved. Risk is not assumed if P has no reasonable alternative.
Implied Assumption of Risk - subjective test
P's knowledge of the danger and voluntary exposure to it are measured subjectively by what the P personally was aware of and intended, and not by what a reasonable person would know and do. However, the P's subjective state of mind may be determined from external manifestations
Duty arising from special relationships
Parent-child Employer-employee Carrier-passenger School-Student Relationships
Who initiates suits in a parental immunity case?
Parents are the ones that initiate the suit Different situation when both parents are together but jointly decided to initiate a suit on behalf of their child as opposed when the parents are separate and one parent decides to initiate the suit against the other Existence of liability insurance for the injuring parent will also play an important role on the decision to sue
Factors that are not "intervening acts"
Pre-existing conditions - D takes his victim as he finds him Forces set in motion - by D Omissions to act - Although a third person's failure to act may have contributed to the P's injury, such omission is not deemed to be an intervening act - even though the third person may have been under a legal duty to act.
Factors in Evaluating Reasonableness of Alternative Actions
Probability that harm will result from the defendant's conduct Severity of potential harm from the defendant's conduct Burden the defendant and society would have incurred had the defendant taken the proposed alternative course of conduct
Duty to control third parties - Business Proprietor and Invitee
Proprietor of a business owes a duty to protect customers and other business invitees from wrongful acts of third parties on the premises
2 reasons why courts consider the concern about interfering with parents decision regarding raising their children to be a legit concern
Protect the rights of the parents to determine the upbringing of their children Parents are generally in the best position to determine what is best for their children
Immunity - Spousal Immunity
Provides that an individual cannot be compelled to testify against his or her spouse in criminal cases while they are married.
Assumption or risk requirements
Recognized and understood the particular risk or danger involved; and Voluntarily chose to encounter it. Consent to risk of harm essential. Mere heedlessness or indifference to risk is insufficient to establish assumption of the risk.
apparent agency - vicarious liability
Reliance on a representation by a third party Principle has acted in such a way as to induce a third party to believe that a particular person or entity is acting as their agent Apparent negligence exists only if all three of the following elements are present - Representation by the purported principal - Reliance on that representation by a third party - Change in position by the third party in reliance on the representation
Indemnity
Required payment to an individual who has been held liable for the act of another and, as a result, suffered a loss without fault. The defendant can sue the person against whom the defendant has that right for the full amount paid in satisfaction of the plaintiff's claim.
Negligent entrustment
Requires a showing that the entrustor knew or should have known some reason why entrusting the item to another was foolish or negligent Defendant causing their own conduct with respect to third party
Rationale for using statues by legislatures or regulations by admin bodies
Respect for the other branches of gov't Admin regulations or statutes are the result of deliberations based on experience of the proper conduct that should be engaged in under the circumstances
Individualist Market Based Approach
Seeks to determine what activity generates the harm and assign the cost of accidents to that activity May also generate many of the benefits of the wealth maximization approach, its concern is not about the collective. Benefits - Internalize the cost to thee activity that generates it - Internalizing the cost is critical because if not done, the goods and services provided are being subsidized by harms inflicted on others Rawls State of Nature and other creation myths
Collectivist Wealth Maximization
Seeks to maximize the material resources of our society It would seek to minimize the total cost our society pays for accidents... cost accidents + cost of preventing accidents + admin costs(primarily legal fees) Internalize the cost of the activity that generates it Provides for an incentive to the generator of the harm to take measures to reduce the number of accidents Activity that generates the harm pays for the entire cost, it increases the cost of goods and services that generate the harm and thereby makes alternatives, which could be safer, more desirable and diminishes marginal utility
Circumstantial Evidence - business practices
Some courts permit Ps to try to make a case without proof of actual or constructive notice on part of the D. "mode of operation" - the P bases the D's liability on methods used by the D to run the business. - If it is part of business practice then the hazard could be a reasonable and foreseeable hazard such that D's notice of specific danger is irrelevant
Invitee
Someone who enters the land of another with an invitation either express or implied in connection with the business of the owner Owner occupier owes the invitee the duty to maintain the premises in a reasonably safe condition and not to harm the invitee through active negligence Status of invitee can change if they go outside the scope of his invitation Going out of the invited space Change the purpose of visit Stay in the space after it was closed If allowed to go outside the scope = licensee If not allowed to go outside the scope but goes on own accord = trespasser
Negligence per se - Rebuttable Presumption or excuse
Sometimes the statute is viewed as merely establishing a rebuttable presumption of negligence the D can then introduce evidence of due care in order to rebut the presumption
Foreseeability
The ability of a reasonable person to anticipate the consequence of an action Duty generally arises if it is reasonably foreseeable that the actor's conduct will harm someone else - Basically, if a reasonable person in the actor's same position should perceive that her conduct places someone at an unreasonable risk of harm
When the duty to exercise reasonable care in assisting another arises
The actor's failure to exercise reasonable care increases the foreseeable risk of harm to the victim Harm arises due to the victim's reliance on the actor's voluntary undertaking
Intervening Forces - Foreseeable Responses of Others
The defendant is liable to the plaintiff for injuries caused by the actions of third parties, if the actions of the third parties are a foreseeable response or reaction to the defendant's negligence.
Trespassers as a defense for strict liability
The defendant is not usually strictly liable for harm done to trespassers if the trespasser is doing so intentionally or flagrantly
Nonfeasance
The failure to act when one should
Duty to control third parties - Business Proprietor and Invitee - Balancing Test
The greater the foreseeability and gravity of harm weighted against burden, expense, and social utility, the greater the steps the proprietor must take to protect against the harm
Battery
The intentional infliction of a harmful or offensive contact with the purposely State of mind
adhesion contract - limitation to AoR - Equal bargaining power
The legal assumption that parties to a contract are able to look out for their own interests.
Strict Liability
The legal responsibility for damage or injury even if you are not negligent (5 elements of negligence - breach)
Causation
The link between an action and its result.
Why was parental immunity created?
The original justification for adopting this immunity was the parents' right to direct the upbringing of their children. As this justification gave way, a second justification was developed, the concern about fraud against third parties who would have to pay these judgments (mostly insurance companies)
Misfeasance
The performance of a lawful act in an illegal or improper manner
Liability of Governmental Entities - Local and municipalities
Their immunity came from the belief that tax monies should not be diverted from the purposes for which they were collected.
Modern Version of Duties for owners/occupiers Fall into one of 3 kinds - Flagrant trespassers
Those whose presence on the land is so antithetical to the right of the land possessor that it would be unfair to subject the possessor to liability for negligence Includes a duty not to harm through active negligence
Using a statute to create a duty
Traditional view is that criminal statutes rarely create a duty Their function regarding negligence action is is generally limited to only specifying the requisite SoC
Duty for a landlord to fix property.
Under common law, landlords did not have the duty for failure to repair, only for negligent repairs. Modern position is to expand the dutty to cover the failure of the landlord to make adequate repairs Some courts also impose the landlord's duties contained in housing codes
Obligation to Control the Conduct of Others
Under common law, there was no obligation to control the conduct of third parties, except in limited situations like employer/employee and custodians of mentally ill patients or inmates. Generally views the negligent conduct of other individuals as breaking the chain of causation or as no duty being imposed upon the defendant
Proximate Cause - Direct Causation Test - Unforeseeable. Results
Unforeseeable type of injury "Polemis" view - Some courts hold the D liable for all direct consequences of his wrongful conduct despite the occurrence of an unforeseeable type of injury to P. D's action and P's injury 1 step away. "Wagon Mound" view - No liability for unforeseeable consequences - Most courts reject the rigid Polemis view. The majority emphasize foreseeability (of the type of harm) and assert that when an unforeseeable result occurs, it is unfair to hold the D liable, no matter what causation pattern has transpired. Reasonableness may depend on how the question is asked. It may also be based on hindsight.
3 ways courts treat Statutes
Violation of the statute creates a presumption of negligence against D Violation of the statute creates a rebuttable presumption of negligence against D - Puts burden of proof on defendant to produce an adequate excuse for not following the statue Violation of the statute is evidence of negligence
Recklessness - contributory negligent
Virtually all courts decided that contributory negligence was a defense only in cases of negligence. If the misconduct of the D was more serious - reckless or willful misconduct - the appropriate defense would have been contributory recklessness or contributory willful misconduct.
prima facie case - statutory standard of care - Contributory negligence per se
Where P violates a statute designed for her own protection as well as the protection of others, the violation by itself may establish duty and breach.
RPP - Professionals
What a person in that profession with ordinary training, knowledge, and skills in that profession would do under the circumstances
Circumstantial Evidence - Slip and fall cases - Constructive Notice
When a P slips and falls on the D's property and negligence is her cause of action, she must show by a preponderance of the evidence that the D failed to exercise reasonable care. Most courts require that the condition on which she slipped existed long enough so that the D should have discovered it and should have remedied it
Vicarious liability "respondeat superior"
When an employer is liable for the harm caused by an employee's negligence Employee must be acting within the scope of their employment Exception - They are outside the scope of employment (coming and going rule) Exception is when they endanger others with a risk related to employment
adhesion contract - limitation to AoR - unequal bargaining power
When one party has a significantly unbalanced advantage over the other, and can use it to take advantage of a situation. Leases can be policed by monitoring for this.
Joint liability - acting in concert
When she aids or encourages another in committing a tort
Exceptions to GDS
When there is a special relationship between the defendant and victim Doctrine of undertakings or voluntarily coming to the aid of a person in danger individual made the situation worse
Suing for Joint Liability
Where multiple acts of negligence combine to directly cause a single harm, each tortfeasor may be held liable for up to the full amount of the damage. Injured P may sue and obtain full amount of damages from any jointly and severally liable defendant
Several Liability
Where multiple acts of negligence combine to directly cause a single harm, each tortfeasor may be held proportionately liable according to the amount of the injury each tortfeasor caused. Can only recover D's comparative-responsibility share of the injured plaintiff's damages
Different Approaches to Parental Immunity - Wisconsin
Where the alleged negligent act involves an exercise of parental authority over the child; and Where the alleged negligent act involves an exercise of ordinary parental discretion with respect to the provision of food, clothing, housing, medical and dental services and other care. This form of immunity would not cover all negligent supervision nor any auto accident claims
Proximate Cause - Direct Causation Test
Whether the D should be deemed the proximate cause of the P's injury turns on the "foreseeability" of the results. Foreseeable results lead to liability - If the D causes a foreseeable injury this presents a clear case of liability that proximate cause is rarely in issue.
Finding the existence of a private right of action in a given statute
Whether the plaintiff is one of the class for whose particular benefit the statute was enacted Whether recognition of a private right of action would promote the legislative purpose And whether creation of such a right would be consistent with the legislative scheme
RPP Knowledge common to community
Will be held to the common knowledge of the community at the time
When does an intervening cause break the chain?
Will beat PC if it breaks the causal chain between the conduct and injury Will not break the chain if it lies within the scope of the foreseeable risk Outside the foreseeable risk will break the chain, and will then become a superseding cause
Intervening Causes - Unforeseeable results of negligent conduct
Would have happened anyway
Sport participants
You assumed the risks, unless there is reckless or intentional action by defendants.
Special Relationships - Cuffy Factors
a. An assumption of an affirmative duty by the municipality to the injured party through promises or action; b. knowledge on the part of the municipality's agents that inaction could lead to harm; c. some form of direct contact between the municipality's agents and the injured party; and d. that party's justifiable reliance on the municipality's undertaking.
Proximate Cause - Inirect Causation
an intervening force extended the result of D's negligence or combined with D's act to produce P's injury.
Cardozo Rule on Duty (INDIVIDUALIST VIEW )
defendant owes a duty only to those who could foreseeably be endangered by the defendant's negligent act. Therefore, according to the rule, there is no duty owed to a plaintiff who is in a position of apparent safety when the defendant commits a negligent act. This is the so-called "orbit of danger" test. looked at the issue from a perspective of identifying whether a duty is owed,
Key in ignition statues
deter theft and injury for the operation of motor vehicles by unauthorized persons - Unauthorized user cannot use the statute to set the standard of care Protect the public generally from the consequences that foreseeably flow from unauthorized use of motor vehicles
Breach of Duty
failure to meet the standard of care A breach occurs if the defendant engages in conduct that a reasonable person knows puts other people at unreasonable risk of harm
Intervening Forces - Negligence of Others
ften foreseeable If one defendant's negligence causes a second defendant to be negligent in response, causing a plaintiff's injury, a jury can find the first defendant liable for the injury. D causes injury = foreseeable exacerbation of injury by medmal D neg. injures P = foreseeable someone else will try to rescue and exacerbate plantiff's condition
The Andrews Rule on Duty (COLLECTIVIST)
if the defendant owes a duty to anyone, then he owes a duty to everyone who could foreseeably be injured by his action. Considered the issue as one of proximate causation.
Scope of Liability - Strict Liability
liability is limited to those harms that result from the risks that made the defendant's conduct tortious Duty owed only to foreseeable plaintiffs Duty extends only to foreseeable hazards
Standard of Care
the degree of care that a reasonably prudent person should exercise under the same or similar circumstances
prima facie case -defense
the duty here is a duty to exercise due care in the circumstances to avoid one's own injury at the hands of another. Also no requirement of an act. Duty can be violated by inaction.
Statute
written rules established by legislative bodies based upon consensus among governmental leaders. The purpose of a statute is to command or prohibit an action and/or declare a policy
