Torts

private nuisance

A thing or activity that substantially and unreasonably interferes with P's use and enjoyment of P's land. ● Mental State: Usually intentional, because once D is placed on notice that D is interfering, and D still does not stop. EXAMPLE: DunCo owns a feedlot in the desert that smells. On certain days, the wind will blow the smell towards a housing community that was constructed nearby. Petra, who lives there, is revolted and asks DunCo to do something about the smell coming from the feedlot. If DunCo does not shut down the feedlot, it is engaging in intentional conduct. ● Five factors for balancing substantial/unreasonable interference: o Value of D's activity; o Whether there are alternatives; o Nature of locality; o Extent of P's injury; and o Who was there first? (used to be a defense now just a factor) ● Remedy = injunction (equitable relief). o To prevail, P must persuade a judge that P is suffering or will suffer irreparable harm and damages are an inadequate remedy. o Judge will then do balancing test.

Question 8

A-One Bicycles has been making the best bicycles around for three generations. Mitchell, the grandson of the founder of A-One, takes great pride in the quality of A-One's bicycles. Mitchell personally supervises the assembly line eight hours a day to ensure quality, so that he can maintain his reputation in the industry. Despite Mitchell's careful inspections, Mitchell is unaware that the bicycle seats that he gets from Bike Components Unlimited are having problems. They fall off when anyone over 150 pounds sits on them. A-One sells its bicycles through the retailer, Bike Mart, among others. Phillip buys an A-One bike from his local Bike Mart. Phillip takes the bike out for a spin, and as he makes his first turn onto a busy street, the seat falls off. Phillip falls in front of oncoming traffic and is severely injured. Phillip sues Bike Mart and A-One in strict product liability. Which of the following is true? (A) Phillip cannot recover against Bike Mart, because it sold the bike exactly as it received it. (B) Phillip should not prevail against A-One, because it exercised due care and the faulty bike seat was Bike Components' fault. (C) Phillip should prevail against A-One, regardless of whether A-One or Bike Components introduced the defect. (D) Phillip should not prevail against Bike Mart but should prevail against A-One, because A-One manufactured the bicycle. Look at the possibilities and see which speaks to the proper legal theory. Anything that speaks of reasonableness is wrong. The best answer is (C) because it says that in strict product liability, anyone who is part of the marketing chain is a proper defendant.

bar exam Q 2

David's neighbor, Jack, is a musician and practices with his trumpet every day, late into the night. One day, David saw Jack at the local grocery store. Frustrated by the amount of noise coming from Jack's house every night, David approached Jack from behind and yelled, "If you don't stop playing the trumpet, one day I am going to kill you." Unknown to David, Jack was wearing the earplugs he wore to perform live and did not even know that David was speaking to him. Dismayed by Jack's apparent indifference, David telephoned Jack and repeated the threat. Jack was shocked to discover his neighbor disliked his music, and quickly apologized. That night Jack went to bed early and did not practice his trumpet. In a cause of action against David for assault, Jack will A) prevail, if the reason he refrained from practicing his trumpet was fear of retribution from David. B) prevail, because he was upset by the telephone call and David should reasonably have known that he would be. C) not prevail, because he was unaware of David's statements in the store. D) not prevail, because David said "one day I am going to kill you." Answer: (D) - Element of assault is imminence - "one day" lacks imminence, cannot establish the tort because an element is missing.

NEGLIGENCE

Duty: Does the law impose obligations from D to P? ● Rule: D has a legal duty to act as an ordinary, prudent, reasonable person taking precaution against unreasonable risk of injury to others. ● Foreseeable P: D owes this duty only to those persons inside the geographic zone of danger at the time of D's negligence. o Rescuers are owed an independent duty (per se foreseeable Ps). HYPOTHETICAL: Della negligently fails to maintain a stool in her ice cream parlor. Xena, a customer, sits on the stool and falls to the ground because of the disrepair of the stool. Parker runs across the ice cream parlor to help Xena, but slides on the ice cream Xena dropped when she fell, breaking his ankle. Does Della owe Xena a duty? Parker? Under Palsgraf, Parker would not be owed a duty but Xena is. As a matter of policy, because Parker is a rescuer, he is owed a duty. o Nonprofessional rescuers are foreseeable P's as a matter of policy and can recover against negligent party creating need.

Cause-in-Fact (Actual Cause) 2

EXAMPLE: Abel negligently sets a fire. Alone, Abel's fire would burn down Parker's mansion worth $1M. Burnie also sets a fire that would, by itself, burn down the mansion. The fires combine and destroys the mansion. If Parker sues Abel, he cannot show but for Abel's fire, his house would not have been destroyed because Burnie's fire would have done the same. Parker must use the substantial factor test to prove actual cause. ▪ Assume joint and several liability, so that P can sue one or both Ds and collect entire amount from one D alone. The D found liable can seek contribution from the other D. NOTE: Joint and several liability is available in situations where two or more defendants acting in concert injure the plaintiff or where two or more defendants acting independently injure the plaintiff, and the resulting damages cannot be allocated to particular defendants, all of the defendants are liable for the entirety of the plaintiff's injury. The plaintiff can execute against each defendant for the total damages suffered, although the plaintiff may only recover from any or all defendants an amount equal to the total damages awarded.

bar exam question

Frank received a new snowmobile for Christmas. The first week of January, a snowstorm drops a foot of new snow in the mountains. Frank decides to take his new snowmobile out for a spin. He is moving much too fast when he comes over a rise and sees another snowmobile directly in front of him. He swerves to avoid the other snowmobile but loses control. His snowmobile crashes into the other snowmobile. Fortunately, Hans, the driver of the other snowmobile, is not injured, but his snowmobile has been rendered inoperable. Frank's snowmobile still runs, so he goes for help while Hans stays behind with his damaged snowmobile. While Hans waits for Frank to return, a large branch of a nearby tree snaps under the weight of the heavy, new snow. The branch falls and hits Hans, causing Hans to break his collarbone and left arm. If Hans sues Frank for these injuries, Frank's best defense would be (A) that he was not negligent. (B) that Hans was negligent in standing near a tree with snow-laden branches. (C) that the falling tree branch was an intervening and superseding force. (D) that his negligent conduct was not the actual cause of Hans's injuries. (A) is wrong based on the facts; (B) not unreasonable conduct to stand by tree; (D) there is causation based on the facts; Answer: (C) - TALKS ABOUT PROXIMATE CAUSE ISSUE.

Defenses and Privileges to Intentional Torts - POPCANS 4

HYPOTHETICAL: Billie asks Heath if she can hit him with her new baseball bat. Heath responds, "Sure—you can't swing that foam bat hard enough to hurt me anyway." Billie, knowing that the bat is, in fact, made of wood, swings and hits Heath. Can Billie claim the defense of consent for the battery? There is no consent so there is liability for battery because the bat being made of wood goes to the nature of the act. ● Authority (to engage in behavior that otherwise might be a tort) o Arrest ▪ Police officer can arrest if reasonably believes D committed a felony. ▪ Police officer can arrest for misdemeanor if D's action constituted a breach of the peace. ▪ Private person trying to affect an arrest acts at his/her own peril - if wrong, liable for tort. o Shopkeeper's Privilege ▪ Not liable for false imprisonment if had a reasonable suspicion that P stole. ▪ Can only detain for a reasonable period and in a reasonable manner on the premises/immediate vicinity. o Discipline: Parent/teacher may use reasonable force to discipline a child.

intentional torts hypo

HYPOTHETICAL: David sees his archrival Pria walking across the street. Although David thinks it is unlikely he can throw a stone that far, David picks up a nearby stone and throws it at Pria. Has David acted with purpose/intent such that he may be found liable for tortious conduct? YES. It was Dell's desire and purpose to make contact and bring about that result. HYPOTHETICAL: Darla is bored and decides to shoot her BB gun into a passing commuter train. She doesn't want to hurt anyone, but she knows that the trains at that hour will be packed with passengers. She shoots her BB gun at a full passenger car passing by her, hitting Pete. Has Darla acted with intent such that she may be found liable for tortious conduct? YES. Even though it wasn't her desire or purpose to cause harm or bring about contact, she actually knew that it was virtually certain that the result would occur. Not enough that she should have known, she actually had to know that the result was substantially certain.

false imprisonment hypo

HYPOTHETICAL: Dennis quickly locks Professor Long's classroom door during a Torts class, unlocking the room an hour later at the end of class. Every student is so engrossed in the lecture that nobody tries to leave the room during the class. Is Dennis liable for false imprisonment? NO. If no one was aware of or injured by the confinement, there is no false imprisonment claim.

strict liability 2

HYPOTHETICAL: Dinah Mite, an explosives dealer, accidentally drops a pallet of boxes containing explosives on Patella, breaking her leg and pinning her to the ground. Accident investigators on the scene later that day are injured when one of the destabilized explosives detonates. Is Dinah Mite potentially subject to strict liability for Patella's injury? For the accident investigators? Patella could only recover upon proof of fault since this is not the injury typically caused by dynamite. Investigators could recover on strict liability grounds. May have accepted the risk. ● Defenses o Contributory Negligence: D generally cannot raise this defense with strict liability. o Exception: P knew of the danger that justified imposition of strict liability, and his action caused exactly that danger to manifest. Here, P could be said to have assumed the risk, and P is completely barred from recovery. EXAMPLE: Pam is driving on the highway and she is listening to the radio when she sees a sign that says "Danger: Blasting—Radio signals can trigger an explosion. Turn off your radio" that Dynaco had posted. Pam did not turn off her radio. There is an explosion that causes injury to her, and she sues Dynaco in strict liability. Dynaco can assert a defense that she knew of the danger and chose to confront it, and therefore assumed the risk of injury. If Pam were speeding and did not see the sign, she gets full recovery because contributory negligence would not be a defense to strict liability.

examples

HYPOTHETICAL: Patty is injured when a side of beef falls from the sky and hits her on the head. All Patty can show is that she was walking by DunCo's Meat Storage Warehouse when this occurred. Can Patty maintain an action against DunCo? Cannot prove specific unreasonable conduct, but when sides of beef come falling from the sky, it's probably a result of negligence. Happened when walking by D's warehouse. Jury can infer D is probably the responsible party. BAR EXAM APPLICATION Question 4 Dennis, age 11, takes his parent's car for a joy ride. Because Dennis has never driven a car before, he loses control of the car and collides into Pedestrian, breaking Pedestrian's leg. Pedestrian sues Dennis in negligence. Which of the following is most correct? (A) Pedestrian will prevail because Dennis hit Pedestrian with the car. (B) Pedestrian will lose because Dennis is a child. (C) Pedestrian will prevail because Dennis failed to act as a reasonably prudent person would have. (D) Pedestrian will lose because Dennis had never driven a car before. Answer: (C)

intentional torts hypo 2

HYPOTHETICAL: Six-year-old Brian Dailey pulls a chair out from where he knows Mrs. Garrett is sitting. If Brian knew that it was substantially certain that this would cause Mrs. Garrett to fall to the ground, has he acted with intent? Did a six year old know that it was substantially certain that contact would occur, despite his age? There can be intent even though the defendant is a child. Children are liable for their own intentional torts as long as the defendant can form the requisite intent. Common Law: parents are not vicariously liable for the intentional torts of their children. Some jurisdictions impose it. HYPOTHETICAL: Dale is late for his Torts class. Without looking where he is going, he runs out of the library and collides with Parker. Has Dale acted with intent? NO. Might be negligence or recklessness, but no basis to find that D desired to cause contact or that he knew it was substantially certain to occur.

bar exam Q

Hiker was tired and looking for a place to rest for a while. According to her cell phone, the trail she was on was about to come to a nice tree-shaded park open to the public. Hiker left the hiking trail and entered what appeared to be the park. Hiker took a nap under a tree for an hour and then left the property, returning to the hiking trail. The property was not in fact a park but private property owned by Dell. Dell sues Hiker for trespass to land. Which of the following is most correct? (A) Hiker is liable for trespass to land. (B) Hiker is liable if a reasonable person would have known that the property was private property. (C) Hiker is liable provided she caused harm to the property. (D) Hiker is not liable unless she recklessly entered the property. Answer: (A)

question

In order to facilitate street cleaning, the Metropolis city council passed an ordinance barring motorized vehicles from driving through the city center from 5 a.m. to 6 a.m. on Tuesdays. One Tuesday, the defendant, who is a resident of another city, was speeding through the Metropolis city center at 5:30 a.m., when he hit a pedestrian. The defendant did not know about the ordinance. The pedestrian has sued the defendant on a negligence cause of action. What is the most likely result? (A) The pedestrian will prevail, because the defendant violated the ordinance by driving through the city center at 5:30 a.m. on a Tuesday. (B) The pedestrian will prevail, because the defendant failed to act reasonably under the circumstances. (C) The pedestrian will not prevail, because the defendant did not know about the ordinance. (D) The pedestrian will not prevail because the local ordinance will not establish the standard of care. (A) - incorrect; (D) - statute not designed to prevent this type of harm; (C) - irrelevant Answer: (B) - if defendant acts unreasonably, there is still negligent conduct because reasonably prudent person standard will be used.

bar exam Q 3

Larry, the owner of a small bookstore, is very concerned about a recent wave of shoplifters wearing sweatshirts with large pockets and sneaking books out in the pockets. Two days after the most recent shoplifting incident, on a particularly warm day, Tim entered Larry's bookstore wearing a sweatshirt similar to those worn by the shoplifters. Larry noticed Tim's sweatshirt and watched him spend over an hour slowly moving through the various book stacks. Expecting the worst, Larry moved a large heavy book cart in front of the front door, and called the police station to report a shoplifter. Tim eventually moved to the cash register to pay for his selection of books. After paying for his books, Tim discovered his exit was blocked by the book cart. Shortly thereafter, the police arrived and asked Tim to empty his pockets. Tim did not have anything in his sweatshirt pockets. Tim's cause of action for false imprisonment will A) fail, because the shopkeeper's privilege will prevent the cause of action. B) fail, because Tim was not harmed by the confinement. C) succeed, because Tim was aware of the confinement. D) succeed, because Tim was not in fact a shoplifter. Are the prima facie elements established? YES. Confinement in a defined area done intentionally against the plaintiff's will and the plaintiff was aware. Choice B - don't have to be harmed by the confinement. Correct answer is (A) - Defendant had reasonable suspicion that the plaintiff was indeed a shoplifter and conducted a reasonable investigation and contained him for a reasonable amount of time.

Strict Products Liability damages 3

NOTE: Contributory Negligence: As initially conceived, a plaintiff's unreasonable conduct was not a defense to a strict products liability action unless the plaintiff knew of the defect, comprehended the risks posed by the defect, and voluntarily elected to expose himself to those risks. That is, only an assumption of the risk was a defense to strict products liability. At modern law, contributory negligence only applies as a defense to strict products liability if the plaintiff's conduct rises to the level of misuse, abnormal use, or independent negligence (i.e., not where the plaintiff's wrongful conduct is a failure to discover the defect). A plaintiff's continued use of a product which the plaintiff knows to be defective is not voluntary, and thus not an assumption of the risk, if there are no practicable alternatives to such use. Where a defendant can show that his product was subsequently altered in an unforeseeable manner by someone in the chain of distribution or a third party, courts usually relieve that defendant of liability. NOTE: Comparative Negligence: Some jurisdictions that have adopted a comparative negligence system as to negligence also apply that system to strict liability. A plaintiff's wrongful conduct that contributes, along with the defective product, to his own injury reduces his recovery in some amount. This is usually limited to misuse, abnormal use, or independent negligence situations (i.e., not where the plaintiff's wrongful conduct is a failure to discover the defect). In some jurisdictions that permit comparative fault, the plaintiff's unreasonable conduct in failing to discover and guard against the defect is not a defense.

bar question

One winter morning, Jan needed to get to the airport, so she called a cab. Due to the ice on the roads, traffic was terrible. With less than an hour before her flight, Jan offered Carl the cab driver an additional $50 if he would "find some way to speed up and get her to the airport." Carl began to weave in and out of traffic. Carl lost control of the cab and crashed into another car. Dan, a pedestrian, saw the accident and attempted to help. As Dan was attempting to help Carl out of the cab, Dan slipped and broke his leg. Did Carl owe Dan a duty of care? (A) Yes, Dan, as a rescuer was owed an independent duty of care. (B) Yes, because it was foreseeable that Dan could be injured. (C) No, because Dan assumed the risk of injury when he attempted the rescue. (D) No, because Dan's negligence will bar his claim. Danger invites rescue. Good deed-doer. We want them to recover for harm they suffer in effecting rescue from the negligent party who created the need to rescue. Answer: (A) - There is a duty owed to a rescuer.

NUISANCE

Public Nuisance: An unreasonable interference with a right common to the general public (e.g. health, safety, and morals of community). ● Typically brought by a government actor such as an attorney general. ● To recover damages as an individual, one must have suffered harm different from that suffered by other members of the public. EXAMPLE: Bigsby Co. is going to place a billboard on a country road. The sign has bright lights and plays the song "It's a Big World" over and over. It creates a huge traffic problem. This would be a public nuisance. EXAMPLE: Patricia runs a nursing home near the billboard and those who live there cannot sleep due to the constant music.

strict liability

Strict Liability (SL): D is liable for injuring P regardless of whether D exercised due care. P does not have to show proof of fault. ● Possession of Animals o Wild Animal Rule: If D keeps a wild animal and P gets injured because it does something characteristic of that animal, keeper is strictly liable no matter how unforeseeable the harm. EXAMPLE: Damian has a pet tiger. Damian's pet tiger has always been gentle. However, one day when Preston is visiting, the tiger bites off his hand. No matter how unforeseeable, Damian is going to be held strictly liable for the harm to Preston. o Domestic Pet Rule: "Every dog gets one free bite." Not liable unless D is on notice of danger. ● Abnormally Dangerous Activities (e.g., blasting, explosives, or dangerous chemicals) o An activity is abnormally dangerous when: ▪ There is a high risk of serious harm to others; ▪ D cannot engage in the activity without risk, and cannot eliminate the risk with care; and ▪ It is not a commonly undertaken activity in the community. o P can recover absent proof of fault as long as D was involved and the activity caused the harm. o Proximate Cause: P must be injured by the risk that makes the activity dangerous.

PRODUCTS LIABILITY

Strict Products Liability: Focus on the condition of the product, not on D's conduct. ● Proper P: Any P who is a user, consumer, or bystander physically injured by a defective product. No requirement of contract privity. ● Proper D: Commercial suppliers at all levels of the distribution chain and those in the market of selling the product - manufacturer, wholesaler, and retailer. Does not include occasional sellers and those supplying services. ● Proper Context for Products Liability: Generally services alone are not enough. When both a product and services are present, the goods/product must dominate. EXAMPLE: Prudence goes into Valerie's beauty salon and wants a perm. Valerie chooses a perm manufactured by DunCo and applies it to Prudence. Prudence goes bald and sues Valerie in strict liability. The court says that the product predominates and Valerie can be a proper defendant in strict products liability. Different from a dentist using a defective needle to administer Novocain. ● Defect: Almost all jurisdictions impose strict liability where the product is in an unreasonably dangerous defective condition. Formulations of liability occur under 3 categories of defect: o Manufacturing Defect (easiest): Manufactured in a form other than intended by manufacturer. P must show: ▪ Product is in a condition not intended by manufacturer and defect existed when leaving manufacturer's hands.

trespass to chattels remedies

o Damages: Cost of repair, fair market rental value, and potentially punitive damages if D is a particularly bad actor (willful, wanton, or malicious conduct). o Replevin: Get back personal property of which one has been wrongfully dispossessed.

Strict Products Liability 2

o Design Defect: Made as intended by manufacturer but still presents a danger of personal injury or property damage to P because of a flawed design. Two tests: ▪ Ordinary Consumer Expectation Test: Product is more dangerous than would be contemplated by the ordinary consumer who possesses ordinary knowledge common to the community. EXAMPLE: The goggles only protect the front, but not the side. Plaintiff is welding and a piece of metal flies into his eye. Plaintiff sues for a design defect, saying that the design of the goggles should have protected the side. Plaintiff loses under this approach. Ordinary consumer would not expect side protection. ▪ Risk-Utility Balancing Test: Jury determines whether the danger the design threatens (cost in human injury and property damage), outweighs its utility to society. Product will be found defective if an alternative design could have reduced the danger at about the same cost. ▪ Questions to ponder: How easy would it be to swap out the defective design for the alternatives? How high is the likelihood of harm and how bad would the harm be if it happened? How important/useful is the product?

negligence 3

o Duty to Control Third Parties EXAMPLE: Dillan and Tina are strangers sitting next to each other at a bar. They start chatting and Tina says her husband is going to come by and pick her up. She says she is going to kill him when he does. Tina leaves and shoots her husband. Husband sues Dillan for not warning him. ▪ General rule: There is no duty to control the conduct of a third party as to prevent harm to another. ● Exception: When a special relationship between D and the third party gives the third party a right of protection or imposes a duty on D to control the third party's conduct. EXAMPLE: A prison has a dangerous criminal locked away and the criminal escapes. The prison has a duty to warn people in the neighborhood. EXAMPLE: A mother knows that her son always tries to kill babysitters when she leaves him with them. She must warn the babysitter. EXAMPLE: Psychotherapist exercises enough control that when they know of the patient's dangerous propensity, there is a duty to warn a specific party who might be in danger (if no specificity as to who patient wants to hurt, no duty to warn) ▪ Providers of Alcohol ● Traditional Rule: Purveyor (alcohol provider) not responsible for DUI injuries. ● Dram Shop Acts: Impose liability on establishments when they know, or should know, a patron is drunk and that person drives while intoxicated and harms a third party. o These acts typically do not apply to social hosts, but only to those who are licensed to sell alcohol. ▪ Negligent Entrustment ● When D gives something dangerous to someone D knows or should know is not competent to handle it (i.e. Father gives gun to a small child who shoots P).

professionals 2

o Lack of Informed Consent ▪ Traditional (battery): Physician is liable for battery if no informed consent about risks. In that case, the patient's consent is negated because of lack of disclosure. This is still the case when there is a gross deviation from actual consent (ex: P agrees to tonsillectomy, but leg is amputated instead). ▪ Traditional (negligence): Physician must divulge risks that are customarily divulged by a physician in the same set of circumstances (professional rule). ▪ New Trend - Standard of Materiality: Physician must divulge all material risks, meaning risks that a reasonable patient would want to know in deciding whether to undergo the procedure or treatment (patient rule). ● Failure to divulge material risk is malpractice if P can show she would have refused the procedure if the physician divulged the risk. HYPOTHETICAL: Petra decides to let Dr. Dial perform a nose job for cosmetic reasons. Although Dr. Dial does nothing wrong in the surgery, Petra loses her sense of smell as a result of the surgery. Losing sense of smell is an inherent risk of the surgery. Petra sues Dr. Dial for malpractice, claiming that he should have divulged the risk. Doctors in good standing do not customarily divulge this risk, although it is a material risk of nose jobs. Was Dr. Dial obligated to divulge this risk in a professional rule jurisdiction? In a patient rule jurisdiction? Plaintiff cannot show that there was any actual malpractice on the part of Dr. because it was an inherent risk. To recover, action must rely on lack of informed consent. Traditional rule, no liability. Doctors do not traditionally divulge the risk. Under standard of materiality, is the chance of losing sense of smell a material risk?

loss of chance

o Loss of Chance (typically medical malpractice situations). This is not a majority rule. ▪ P must show that but for the medical malpractice, P would not have lost chance/died. EXAMPLE: Paulina goes to see a Doctor who commits malpractice and fails to diagnose her cancer. If Doctor had made a timely diagnosis, there would have been a 40% chance that Paulina could survive, but by the time it is discovered, it is incurable. Paulina sues Doctor. She will lose because she cannot show that it is more likely than not that but for Doctor's malpractice she would have survived. She already had a 60% chance of death. ▪ Many jurisdictions now recharacterize injury in these cases as the loss of a chance and reduce damages, but do not extinguish them. o Alternative Liability Theory (Summers v. Tice - two hunters shoot at quail and P, who is clearly in the line of fire, gets hit. However, it is not clear which hunter actually fired the shot that hurt P!) ▪ When to apply: ● All Ds are tortious/negligent; ● All Ds are being sued together (can't use if one D is left out); and ● Small number of Ds. ▪ Burden shifts to Ds to show that they were not the cause. If Ds cannot do so, they will be jointly/severally liable. o Market Share Liability ● Generic product - P cannot show which of a large group of negligent Ds was responsible for manufacturing the product that caused her harm. P can sue those who might have caused her harm and each D is responsible based on its share of the market. ● Several liability - X had 10% of the relative market; X will pay 10% of P's damages unless X can show it could not have made the product that harmed P.

Standard of Care children

o Majority Rule: Minor D's conduct is assessed according to what a reasonable child of the same age, experience, education, and intelligence as D would have done. ▪ Exception: Children engaging in adult, inherently dangerous activities are held to an adult standard of care (ex: driving). EXAMPLE: 11-year-old Darla is driving her parents' car and collides with, and injures, Paula. In the ensuing lawsuit, Darla will be held to the standard of a reasonably prudent person (adult), because she was driving a car which is an adult activity and is inherently dangerous. ● Statutory Negligence: Statutes that provide civil liability supersede common law of torts (ex: A state law says anyone injured in a car accident not wearing a seatbelt cannot recover in tort. Thus, if P was not wearing a seatbelt when injured in a car accident, P cannot recover in a negligence action).

trespass to land remedies

o Nominal damages available. o D is liable for full extent of harm caused by the trespass. EXAMPLE: Irene is driving carefully across the dirt road, hits a pothole and loses control of her car. She hits an azalea bush worth $15,000. She is liable for this destruction because it occurred while she was trespassing. o Restitutionary remedy of ejectment: Action brought by P to have D removed from property.

Other Duties Owed by Land Possessors 2

o P is Not on the Land but Adjacent to it ▪ Artificial condition on land - duty of reasonable care. ▪ Natural condition from land - no duty except trees in urban areas. o Landlord/Tenant ▪ LL is not liable unless: ● Common areas over which LL retains control (e.g. lobby); ● Negligent repairs; ● At time of lease, LL knows of a concealed dangerous condition; or ● LL knows that T is going to hold property open to public.

defenses to negligence 3

o P may impliedly assume the risk. Recovery will be barred or reduced if D establishes that P: ▪ Knew of and appreciated the nature of the risk; ▪ Appreciated the specific danger that injured P; and ▪ Voluntarily chose to subject himself/herself to that danger. EXAMPLE: Plato gets in the car with Dickens. Dickens smells of alcohol and there is tequila in the car. Dickens crashes the car and Plato is injured. Dickens can argue that Plato elected to get into a car with a drunk driver and assumed the risk of injury. o Professional Rescuers (Firefighter Rule): Where P is a professional rescuer and is injured due to an inherent risk of that job, P cannot recover in negligence against the person who created the need for rescue. ▪ Different from good Samaritans - we want to encourage good Samaritans to rescue so the law allows them to sue for negligence. o Primary Assumption of the Risk ▪ In certain contexts, there is no duty to be non-negligent. Often arises in the context of sporting events. EXAMPLE: Percy decides to play basketball and gets tripped and injured by Duncan during the game. If Percy sues Duncan, under primary assumption of the risk, a court would say that an inherent risk is that another player might be negligent. In agreeing to play, Percy has relieved Duncan of the duty to be non-negligent.

proximate cause 3

o Subsequent negligent conduct is generally not so unforeseeable that it cuts off liability. Hint: Look for passage of time to gauge whether the conduct moves from intervening to superseding (at some point liability is cut off). o Examples of superseding causes: Unforeseeable criminal acts or torts of third parties, highly extraordinary harm arising from D's conduct, including gross negligence by third parties, and acts of nature. HYPOTHETICAL: Dana negligently operates her car and strikes Porter, injuring him. Porter, whose leg is broken from the accident, is taken to a nearby hospital. While he is being treated for his broken leg, there is an earthquake that causes the roof to collapse. A section of the roof strikes Porter on the head, causing a concussion. Is Dana liable for Porter's head injury? Dana would not have been in the hospital but for Dana's negligence. This is cause in fact. Typically, we'd look at the earthquake and say that Dana is not responsible for the post-earthquake injuries because this is a superseding act of nature. We need to know where the hospital is. If in LA, not all that freakish. If somewhere there has never been an earthquake, she is not responsible because it is not foreseeable.

compensatory damages

o Two categories ▪ Special Damages: Pecuniary medical costs, lost wages, and cost of repair. ● Can recover past, present, and future damages; however, future damages will be reduced to present value. ● Collateral Source Rule: The fact that P has insurance to cover some or all damages does not mean that D does not have to pay up. D should not benefit from P's foresight. Rule also applies to gratuitous services (e.g., spouse who provides caretaking for injured P). ▪ General Damages: More controversial because these damages are intangible and difficult to measure. ● Pain and suffering. ● Punitive Damages: Never recoverable just for negligent conduct. D's acts must be more culpable than negligence - like willful, malicious, or reckless. o Goal is to make an example of D so he and others will not engage in the same behavior. o Wealth of D is highly relevant here. ▪ The Due Process Clause limits the amount. Generally, more than 10% ratio to compensatory damages is considered to be unconstitutional.

Strict Products Liability 3

o Warnings ▪ P is Asserting a Warning is Inadequate: The test here is reasonableness. Does the warning reasonably inform a reader of the risks of the product and how to reduce them? Look at language, placement, size of font, and clarity. EXAMPLE: DunCo manufactures a pod-shaped laundry detergent called, Clothes-B-Clean that looks a lot like candy. The box includes the words, "Danger—Keep Out of Reach of Children." A child thinks the pod is candy, eats it, becomes extremely ill and is hospitalized. A better warning would explicitly state that the pods could cause significant harm if eaten. ▪ P is Asserting There is no Warning: A manufacturer has to warn about risks of which it knows or should know. Consider the gravity and probability of harm. ● 1% risk of death - they should warn. ● 1% risk of tooth discoloration - probably not. ● Cause-in-Fact: Usually proven by showing that the defect that injured P was in existence at the time it left D's control. ● Proximate Cause: Look for superseding causes which might break the chain of causation. For instance, did P use/alter the product in an unforeseeable way? EXAMPLE: Manufacturer mixes gasoline and kerosene and sells to a pharmacy. Pharmacy discovers the mixture and calls the manufacturer and alerts it. Pam comes in and buys the mixture. She is injured and sues the manufacturer. The pharmacy's decision to continue to sell the defective product is a superseding cause. o Learned Intermediary Doctrine: If a manufacturer provides a warning to a doctor, the manufacturer can expect that the doctor will pass the warning on to the patient. If the doctor does not, the doctor is a superseding cause of the patient's harm.

negligence per se 2

o When the statute does not apply: The statute will not set standard of care, case proceeds under RPP, not under negligence per se. EXAMPLE: State of Joy passes a statute that requires all railroads to construct secure fences between their property and neighboring property, failure to do so results in a fine up to $1,000. Dunn Railroad constructs a flimsy fence between their land and Pierre's. Railroad workers mow the lawn next to the fence. On the other side of the fence is Pierre's cow. Cow knocks the fence over and eats herself to death on the freshly cut grass. The statute is not designed to protect cows from overeating; therefore, it will not apply.

trespass to chattels vs conversion

trespass to chattels -intentional tort -Committed by intentionally dispossessing or intermeddling with a chattel in the possession of another. -Defendant is liable for damage or diminished value of chattel. -Remedy: generally diminished value of chattel conversion -intentional tort -Committed by intentionally exercising dominion or control over a chattel and seriously interfering with the rights of the owner. -Defendant is liable for the full value of the chattel at the time of the conversion. -Remedy: generally full value of chattel

Elements of Intentional Torts

· Voluntary Act: Something conscious or willed, as opposed to purely reflexive. EXAMPLE: Tom pushes Derik into Priscilla and Priscilla sues Derik. No liability for an intentional tort because Derik did not engage in any voluntary act. EXAMPLE: Dina, during a sudden epileptic seizure, hits Polly. There is no liability because Dina did not intend the contact and there was no voluntary act. ● Intent: D either: o desires the act to cause harmful result (purpose intent), or o knows with substantially certainty that such a result will occur (knowledge intent). o Transferred Intent: If D acts with necessary intent to inflict certain intentional torts against P, but causes injury to victim, then D's intent is transferred to victim. ▪ Only applies to battery, assault, false imprisonment, trespass to land, and trespass to chattels. EXAMPLE: Dillan throws a rock at Xavier, but the rock misses Xavier and hits Pete instead. Pete sues Dillan. Dillan would be liable to Pete because he intended to commit a battery on Xavier and his bad intent will transfer to Pete. ● Causation o D's act or a force set in motion by D causes P's injury. ● Harm o Varies based on the kind of tort. o Ways to establish harm: 1) establish elements of the tort; 2) prove specific injury. ● Liability for an intentional tort requires that there are no applicable privileges or defenses!

Defenses and Privileges to Intentional Torts - POPCANS

•Privilege (does D have a privilege to behave that way) • Others (defense of others) o D is entitled to defend another from an attack by P to the same extent that a third person would be lawfully entitled to defend himself, but D is liable for a mistake. (you essentially step into the shoes of the person you're defending. Only can defend them if they have the right to self-defensedefense) EXAMPLE: Igor overheard a serious threat that Paula made to Donna. Donna is in the parking lot when Igor sees Paula walking aggressively towards Donna with a baseball bat in her hands. Fearing that Paula is about to make good on her earlier threat, Igor picks up a stone, throws it, and hits Paula in an attempt to protect Donna from harm. Paula sues Igor for battery. Igor could successfully assert defense of others because he reasonably believed that Donna was at risk of imminent harm and responded with proportionate force.

Res Ipsa Loquitur

▪ Allows jury to infer D's breach based on the nature of the accident and D's relationship to it. ● Arises when P cannot precisely identify what D did that was wrong, but the situation smells of negligence. ● Only used to show breach. If successfully invoked, the jury can draw an inference of the breach. ● P needs to show: o This sort of accident does not normally occur absent negligence (e.g. nail in your fries at a restaurant); o D is probably the responsible party because D had control over instrumentality of the harm; and o P did not contribute to the injury. ● Can be used in medical malpractice cases. o Common Knowledge Exception: When equipment is sewn into a P or a sponge is left inside a P after surgery, you do not need experts to establish that this is negligent conduct. o Usually cannot use in multiple D cases, except where a medical team is acting as a unit. In such as case, Ds will be held jointly and severally liable unless the individual Ds prove that they did not cause the injury.

Other Duties Owed by Land Possessors

▪ D is engaged in an activity on the land. Duty of reasonable care owed to all except unknown trespassers. ▪ ONLY for an invitee does LO have a duty to reasonably search out dangers on the property. ▪ If known or frequent trespassers (must be obvious - e.g. a well-worn path), LO has a duty to warn of known and concealed dangerous artificial conditions. EXAMPLE: Dan knows of trespassers. If he builds a crocodile pit and hides it, he must put up a warning of the dangers. If there is naturally occurring quicksand, he does not need to warn. o Child Trespassers (Attractive Nuisance Doctrine): A heightened standard of care may apply as to artificial conditions on D's land. Even though the child is trespassing, if the below prerequisites are met, the child will be treated as an invitee. (5 factor test): ▪ Too young to appreciate the danger; ▪ D knows, or has reason to know, of the trespass; ▪ D knows of the dangerous condition; ▪ Condition is artificial (fountain, pool, equipment that looks fun to climb on); and ▪ The risk of danger of the artificial condition outweighs its utility and burden to fix it. EXAMPLE: Six-year-old Pablo is trespassing on Devin's land. Devin is building a new barn; therefore, there is scaffolding and construction on Devin's land. Pablo starts walking around on the scaffolding when one of the boards cracks and Pablo falls and breaks his back. Pablo sues Devin. Court will apply the factors.

duty to protect

▪ Generally, there is no duty to protect another person from third party criminal conduct (nonfeasance) unless: ● Special relationship: landlord/tenant, business/invitee. ● Some jurisdictions only find duty where there is a special relationship and prior similar incidents, that make the third party criminal conduct particularly foreseeable. HYPOTHETICAL: Tenant Paul is robbed at gunpoint by a stranger while in the laundry room of his apartment building, which is owned by Drucilla. Another tenant was robbed in the laundry room last month. Can Paul proceed with a negligence action against Drucilla? Drucilla owes duty to tenant. Special Relationship. Heightened level of foreseeability. Should have taken affirmative steps to protect tenant from criminal conduct. Nonfeasance context. D should have intervened. o D is Governmental Entity: Whether a duty is owed depends on function. ▪ Proprietary Function (acting in private area): gov will be Treated as any other D for duty analysis. ▪ Discretionary Activity (using judgment and allocating resources i.e. setting policy): Courts will not find a duty. ▪ Ministerial Function: Duty once government has undertaken to act (Ex: gov says they're putting up stop sign, stop sign installed incorrectly leading to accident -> can have liability). ▪ Public Duty Doctrine: Courts find no duty when professional rescuers (police officers/firefighters) fail to provide an adequate response, except when: ● there is a special relationship between P and the agency; or ● the agency has increased the danger beyond what would otherwise exist.

Wrongful Conception, Birth, and Life

▪ Wrongful Conception: Birth of a healthy child after the P took steps to avoid conception, often a negligently performed sterilization procedure. (can get damages for cost of surgery, etc. but not damages for cost of raising child) ▪ Wrongful Birth: Birth of a child with anomalies, disease, or disability when the physician failed to diagnose issues during the pregnancy. (parent's claim) ● P must claim that she would have ended the pregnancy if the physician had not negligently failed to diagnose. ▪ Wrongful Life: Child's claim for having been born with anomalies, disease, or disability because the physician failed to diagnose issues during the pregnancy. (almost no courts will allow a successful wrongful life claim)

Product Liability on Negligence Theory

● Any foreseeable P can bring an action. ● Analyze the conduct of each D and ask whether D acted reasonably. (This is different from strict products liability, which focuses on the product, not the actions of the D.) ● Res Ipsa Loquitur takes the place of manufacturing defect in negligence theory. ● All negligence defenses apply. 3. Product Liability on Warranty Theory ● Express Warranty: Exists where D makes a specific representation as to the quality/nature of the product that becomes a basis of the bargain. o Any seller can make this warranty (manufacturer, distributor, seller). o Can occur via advertising, during negotiations, or as a contract provision. ● Implied Warranty/Warranty of Merchantability: Where a merchant deals in goods of a particular kind, the sale of such goods constitutes an implied warranty that those goods will be merchantable (i.e. the goods are of average quality for goods of that kind and are generally fit for the purpose for which such goods are normally used). o Warranty of merchantability = fit for intended use. ▪ Requirements of privity and notice. ▪ Can be disclaimed by contract. ● Where harm is to the product itself, the only claim a P can pursue is for warranty.

defenses to negligence 2

● Assumption of the Risk (AR) o P, orally or in writing, relieves D of responsibility to be non-negligent. ▪ Typically through a waiver that accompanies athletic activities and recreational sports. ▪ AR is not allowed for necessities. For example, if a LL rents an apartment or a hospital provides care—cant require tenant/patient to sign away liability via waiver. HYPOTHETICAL: As a condition of entry to ski at Happy Trail's Ski Lodge, Mary signs a waiver stating that she will relieve Happy Trails of negligence liability. Lucy, in a moment of spite, sprays down a section of snow to make it icy while performing her duties as a slope groomer, notwithstanding her supervisor's repeated warnings to her not to do so. Mary slips on the ice and breaks her leg. Has she assumed the risk of her injury? Generally the waiver would be upheld. Here, it would not be and plaintiff would be entitled to recovery because the conduct of the defendant is more than just negligence. Probably reckless and higher level of responsibility.

Defenses and Privileges to Intentional Torts - POPCANS 3

● Consent: Usually a defense for battery and assault. o Express: P affirmatively communicates permission for D to act. ▪ Limit - Reasonability; D's actions cannot exceed the scope of consent. EXAMPLE: Professor is concerned about his weight and needs to stop eating Twinkies. Professor tells the class that if they see him eating a Twinkie, they should do whatever it takes to stop him. Student sees Professor attempting to eat a Twinkie, grabs his arm, and pulls the Twinkie away. Professor sues for battery. Professor will lose because he gave expressconsent. o Implied: A reasonable person interprets P's conduct as evidencing permission to act. EXAMPLE: X is playing pickup basketball. During the game, there is a scuffle for a loose ball and an opposing player elbows X in the face, giving him a bloody nose. Even if done intentionally, X had impliedly consented by agreeing to play. o Mistake can negate consent when it goes to the consequences or nature of the act. EXAMPLE: Dale and Penny are about to have sex when Penny asks if Dale has any sexually transmitted diseases. Dale knows that he has herpes, but he lies and denies it and then sleeps with Penny without using any protection. Penny gets herpes and sues Dale. Penny will not be deemed to have consented because of Dale's deception. EXAMPLE: Vivian is a sex worker who engages in sexual relations with Mark. Mark pays Vivian with a counterfeit bill. In this case, there is still consent because the counterfeit bill is a collateral matter.

Defenses to Negligence

● Contributory Negligence and Comparative Fault (same analysis, different impact) o D has burden of proof to show that P's conduct was unreasonable and fell below RPP standard. o Determination of legal effect depends on jurisdiction. o Contributory Negligence: Any fault by P bars recovery. ▪ Last clear chance doctrine (Hint: Generally the wrong answer!) ● Only applies in context of contributory. ● If D's negligence occurs after P's negligence, so that D had the last opportunity to avoid the harm, then P is entitled to full recovery. o Comparative Fault ▪ Assume pure comparative fault where joint and several liability applies unless told otherwise. ▪ P can recover no matter how much P is at fault. Recovery is the amount of damages minus the percentage that P is at fault. EXAMPLE: If P is 80% at fault and suffers $100,000 worth of damages, P will recover $20,000 from negligent D. ▪ Joint/several liability applies if there are multiple negligent Ds, and P is also at fault. Subtract out P's percentage of fault and P can sue one or more Ds to get full remaining amount. If P sues only one D, the D found to be at fault can then seek contribution from the other Ds. ▪ Modified Comparative Fault: P is barred from recovery if P is as much at fault or more at fault than D. EXAMPLE: If P is 60% at fault, P will be barred from recovery. If P is 40% at fault, then P would recover 60% of P's damages. - On bar exam, Assume jurisdiction is pure comparative fault jx and assume that joint and several liability applies unless question tells you otherwise

landowner liability

● D is a Land Owner (LO), Landlord (LL), Utility, or Governmental Entity o Plaintiffs on the Land ▪ Invitees: Enters onto D's land at D's express or implied invite and for a purpose relating to D's interest or activities (ex: shoppers in a store or patrons in museum). D has duty to exercise reasonable care to prevent injuries caused by activities conducted on D's land. Duty to reasonably search out dangers (natural and artificial) on the property that invitees would not reasonably be aware of. Land possessor also has a duty to warn invitees of the existence of such conditions and to take sufficient precautions to render the condition reasonably safe ● A business invitee, unlike a licensee, is a person whose presence on the land is for purposes of conducting business with the land possessor ● A business owner who allows customers to use a restroom on the business premises owes the same duty of care to one who enters the premises solely to use the restroom as is owed to one who intends to make a purchase ▪ Licensees: Enters D's land with D's express or implied permission and are not there for a purpose benefiting D or D's activities, nor is the land held open to the public (social guest). D must warn of known concealed dangers (just warn, not cure) that are not obvious. ▪ Trespassers: Enters D's land without express or implied consent of land possessor. Duty to avoid infliction of willful or wanton harm. For known/frequent trespassers- duty to warn of known and concealed dangerous artificial conditions

Strict Products Liability damages

● Damages: Recoverable when there is personal injury or property damage other than to the product itself. o Where the harm is only to the product itself, the only claim is breach of warranty. o Consequential/subsequent economic losses (without personal injury or damage to property) are not enough. HYPOTHETICAL: DunCo sells a defective truck to Paul. Because of the defect, one morning, Paul cannot get the truck to start and thus is unable to make his scheduled deliveries, causing him to lose $10,000. May Paul pursue a strict product liability action? NO. Even though there is a design defect in the truck, he cannot bring an action because the only harm is to the product itself with subsequent economic losses. Only remedy is warranty. If the truck had caused damage to his garage, he would have been able to bring an action because of other property damage.

Strict Products Liability damages 2

● Defenses o Misuse: P's use of the product is neither intended nor foreseeable. D may still be held liable for foreseeable misuse. EXAMPLE: Plaintiff contracts a rash after Jello wrestling and sues. Wrestling in Jello is not the intended use of the product; therefore, Jello wrestling is a misuse of a product that is not defective and P cannot recover. o Alteration: Employer removes safety devices to increase efficiency. ▪ Alteration or modification must occur between the time the product leaves the manufacturer's control and the time of P's injury. o Assumption of the Risk: Where P has used the product with knowledge of the risk. EXAMPLE: Dumont manufactures a TV. Pam is watching TV and it is the final moments of the final episode of her favorite television show. Pam sees that the TV is smoking and sparking, but refuses to turn it off. The TV explodes and burns a carpet and the sofa. Pam sues. Dumont can assert assumption of the risk. However, if Pam did not see the smoke and sparks, then Pam did not assume the risk and recovery is not barred.

duty

● If P's injury is not personal injury or property damages, duty issues arise. o Negligent Infliction of Emotional Distress NIED (courts don't like this tort!) ▪ D engages in negligent conduct and, as a result, P suffers emotional distress that has some sort of physical manifestation. ● Most jurisdictions require that P be in the zone of danger, meaning at risk of physical harm. ● P must have suffered a physical manifestation of the emotional distress, which proves genuineness. ● Exceptions to these requirements: o D negligently shares information about the death of a loved one. o D negligently mishandles a corpse. ● Bystander Actions: Physical harm occurs to a close relative and P suffers emotional distress as a result of injury to the close relative. o P was located near scene of incident; o P suffered severe emotional distress; and o P had close relationship with victim (immediate family member). EXAMPLE: Mom and Dad go out for a walk with Junior. Dad and Junior are holding hands and crossing the street; Mom stopped to tie her shoe. A negligently driven car runs over and severely injures Junior. Dad jumps out of the way. Mom watches the events. Mom and Dad both have heart attacks and sue the driver for NIED. Under the rules of common law, only Dad can recover because he was in the zone of danger. Would have direct and bystander action. Mom cannot recover.

Defenses and Privileges to Intentional Torts - POPCANS 5

● Necessity o D is permitted to injure P's property if it is reasonably necessary to avoid a substantially greater harm to the public, self, or D's property. o Public: D is acting to protect the public at-large from severe harm. EXAMPLE: An earthquake starts a fire in the city. Della blows up Peter's home to stop the spread of the fire. Peter sues Della for conversion and trespass to land. Peter would lose. The greater good was trying to stop the fire. o Private: D commits an intentional tort to protect himself (better tort was committed than risk the consequence). If a reasonable person would believe the action taken was necessary to avoid the harm, D is privileged even if D made an honest mistake in that regard. ▪ D is not liable for the technical tort, but will have to pay for harm D caused (would never have to pay punitive damages). HYPOTHETICAL: Dev is boating on a lake when his motor boat springs a leak. Concerned that he will sink and drown, Dev motors to the nearest dock, which belongs to Paulo. Dev ties his boat to Paulo's dock and walks across Paulo's land in search of help. The boat damages the dock while moored there. Is Dev liable to Paulo for trespass? For the damage to the dock? Defendant can assert necessity privilege. Because harm occurred during the exercise, defendant will have to pay for harm to the dock.

NEGLIGENCE 2

● Nonfeasance: Failure to intervene/confer benefit on the P. o No duty to rescue or aid, except when: ▪ D's tortious conduct creates need to rescue. EXAMPLE: Dexter is driving across a narrow bridge and is driving on the wrong side of the center line. Polly tries to avoid him and drives off the bridge. Dexter has a duty to rescue because his tortious conduct created the need for rescue. ▪ At common law, if a person opts to undertake a rescue, even if he/she doesn't have a duty to do so, he/she must act reasonably. ● However, many states have Good Samaritan statutes that protect a rescuer unless she is reckless or engages in intentional wrongdoing. EXAMPLE: Delilah is hiking on a remote trail and sees a hiker in distress at the bottom of a canyon. Delilah has no obligation to rescue, but if she undertakes a rescue she cannot then hike away if doing so would leave the hiker in a worse position than he would have been if she hadn't stopped at all. ▪ Special relationship of dependence or mutual dependence (carrier/passenger, inn keeper/guest, captain/passengers, drinking buddies). HYPOTHETICAL: Darla, an expert swimmer, is sunbathing on a deserted beach when suddenly Paulo's car drives off a bridge and into the water. Is Darla liable if she ignores Paulo's plight and continues sunbathing? What if she starts bringing Paulo back to shore, then abandons the rescue because she spots a rare fish she wants to inspect? Darla would have no duty to rescue. Has the ability to do so, but has no obligation to take affirmative steps. Here she undertakes to act and gets engrossed in fish. Could be liable since she stopped the rescue. Did not leave P in a worse position.

Damages: P must affirmatively prove damages

● P must prove damages, meaning that there must be a cognizable injury. o Personal injury and property damages are recoverable. o Nominal damages are not available. o Punitive damages are not available for just negligence. EXAMPLE: Vet negligently neuters a dog against P's wishes. Unless the P was planning to breed or show the dog, the court will not allow P to recover because this is not a cognizable injury. · Compensatory Damages: Return P to pre-injury position. o Requires: ▪ Type of damage must be foreseeable (not the extent, but the type of damage); ▪ Must be reasonably certain (not speculative); and ▪ Not avoidable. ● Avoidable Consequences Rule: P must take reasonable steps after injury to not increase/exacerbate the injury. EXAMPLE: Drew negligently injures Polly, causing $10,000 worth of damages but Polly refuses to seek medical help and her damages went from $10,000 to $100,000. Drew can say that he does not owe the additional $90,000 because those damages could have been avoided.

Cause-in-Fact (Actual Cause): Connects D's breach to P's injury

● P shows that, it is more likely than not, that but for D's negligence, P would not have been injured. Other reasons don't matter. There can be more than one but-for causes. o Preponderance matters as long as more than 50%, then D is liable for full extent of damages under the "but-for" test. EXAMPLE: City of Rochester mixed a potable water line with a sewage line. The line that has the drinking water is called the Hemlock line and the sewage line is called the Holly line. Stanley contracts typhoid from drinking tainted water. City claims there are 20 different ways to get typhoid. If Stanley can show that it is more likely than not that City was responsible, he has established cause in fact. If the jury says there is a 75% chance City is liable, Stanley will still get all of his damages. ● Four big areas where this arises: o Multiple Causes—Substantial Factor Test (instead of "but-for" test): Used when 2 Ds cause harm, but each D alone would have been enough to cause the entire harm. In this case, each D is a cause-in-fact if each was a substantial factor in causing the harm.

Breach of Duty: Failure to Meet Standard of Care

● P's burden is to prove every element of the prima facie case (preponderance of evidence). ● Two types of evidence to show breach of duty: o Direct Evidence (rare): An eyewitness or a recording of the accident while occurring. o Circumstantial: Evidence from which one can draw reasonable inference. EXAMPLE: Father bakes a cherry pie and leaves it in the kitchen to cool. An hour later, a large chunk of the pie is missing. He sees his daughter's T-shirt, lips, and teeth stained red. This is circumstantial evidence that his daughter ate the cherry pie. ▪ Slip-and-Fall Cases: P must show that D was negligent for not discovering and repairing the dangerous condition. The dangerous condition was present long enough that D should have noticed it (Ex: P slipped on rotten banana peel vs a banana peel that looks ripe and pristine -> less likely that the store owner had time to notice the banana peel).

professionals

● Professionals: Custom establishes standard of care for professionals. o Medical Malpractice: Physicians are required to possess and use the knowledge, skill, and training of other physicians in good standing in the relevant geographic community. ▪ Specialists = national standard. ▪ General practitioners = locality standard. EXAMPLE: Dr. Dean is an anesthesiologist and administers anesthesia to Peter. After two hours, Peter gets up and then falls and suffers injury. Peter sues Dr. Dean for medical malpractice. Evidence shows that other anesthesiologists allow patients to rest for four hours, not two hours, after anesthesia. This evidence shows deviation from custom, Dr. Dean will lose. If however, Dr. Dean can show that two hours is customary, Peter loses because Dr. Dean has complied with custom. o Lawyers, Architects, Accountants: So long as the professional complies with custom, the professional cannot be found to have breached their duty - deviation from custom means breach of that duty. Hint: Be on the watch for customs that are outdated and/or unreasonable that a court might reject.

Defenses and Privileges to Intentional Torts - POPCANS 2

● Property o D can use reasonable force to defend real or personal property. o May never use deadly force to protect personal or real property. ▪ Look for situations that start with defense of property and escalate to become defense of self/others. o May use reasonable force to eject a trespasser after asking him to leave. o Recapture of Chattels: Reasonable, non-deadly force may be used to get back own personal property if: ▪ the person seeking to recapture requests its return first or a request would be futile; and ▪ D is in hot pursuit. EXAMPLE: Dale took Paul's jacket. Paul saw it and asked for it back. Dale takes off running with the jacket. Paul can chase Dale and use reasonable force to get it back.

Standard of Care: What is the measure of duty owed?

● Reasonable Prudent Person (RPP) under same or similar circumstances. o Objective test - D's conduct is measured against expectation of conduct within community. ▪ The law does not take into account mental ability, speed of reflexes, or mental health. ▪ However, the law does take into account: ● Physical conditions (blind, deaf, amputee). In this case, D will be held to the standard of a RPP who has that condition. ● Emergencies not of D's own making; considered by jury (e.g., rushing to hospital because child is dying). Jury can consider emergency to determine if D acted reasonably under the circumstances. o Breach: Failure to Act as a RPP - Factors to analyze breach (the Hand Formula): ▪ What is the probability of harm occurring from D's conduct? ▪ What is the likely magnitude of the harm going to be? ▪ What is the burden on D to avoid the harm? EXAMPLE: Dunco trolley company decides to build a trolley line using uninsulated wires. Peter is walking across the bridge carrying a metal pole and the pole makes contact with the wires, shocking him. The above factors must be used to determine whether the standard of care was met.

Battery

● Rule: D causes harmful or offensive contact with P's person or something closely connected to P. o Intent: D must either: ▪ desire to cause an immediate harmful or offensive contact; or ▪ knows that such contact is substantially certain to occur. o Harmful or Offensive Contact ▪ Inflict pain or impair any function of the body. ▪ Offensive to a reasonable person. EXAMPLE: Patrick hates to be touched and believes that when people touch him, they are trying to pass alien beings into his body. Dale taps him on the shoulder and asks him for the time. Patrick freaks out and sues Dale for battery. Dale intended to touch him, but the touch was not harmful or offensive to a reasonable person. ▪ P need not be aware of the contact (unlike assault). o To the person or something physically closely connected thereto EXAMPLE: D intentionally kicks P's cane out from under P causing him to fall to the ground. o P does not have to prove injury; will get compensatory damages just by showing the elements. o Privileges and defenses - Consent.

Intentional Infliction of Emotional Distress (IIED)

● Rule: D engages in an intentional or reckless act amounting to extreme and outrageous conduct that causes P severe emotional distress (threshold is very high). o Intentional or Recklessness ▪ Intentional: D acts with desire to cause severe emotional distress or knows that such severe emotional distress is virtually certain to occur. ▪ Recklessness: D acts in conscious disregard of a high degree of probability that emotional distress will follow. EXAMPLE: Dora had an ongoing feud with Pamela. Dora calls Pamela, disguises her voice and says "This is General Hospital. Your child has just been rushed to the emergency room." Pamela suffers severe emotional distress. Dora has the intent for IIED because it was her goal to cause emotional distress. EXAMPLE: Dora is at the hospital and walks by the check-in desk where she overhears a discussion and thinks that one of the nurses is saying that Pamela's child has been rushed to the emergency room. Dora calls Pamela and conveys this information. This would suffice for IIED because it would be a form of recklessness. o Extreme and Outrageous Conduct ▪ Conduct exceeds all bounds tolerated by civilized society. ▪ Offensive or insulting language generally not enough, except when: ● D is a common carrier/innkeeper; ● D knows of P's particular sensitivity; or ● D is an authority figure using racial/ethnic slurs against a subordinate. o Severe Emotional Distress ▪ P does not have to prove physical injury, but distress must be severe; meaning greater than a reasonable person (objective test) would be expected to endure. ▪ Must be substantial/long lasting as opposed to trivial/transitory.

False Imprisonment

● Rule: D intentionally causes P to be confined to a bounded area against P's will and P knows of the confinement or is injured by it. o Intent § D desires to confine or restrain P in a bounded area, or § knows that such confinement is virtually certain to result. o Confinement in Bounded Area § Confinement can consist of: Physical barriers, threats of force, failing to release P after duty to release arises, or the invalid assertion of legal authority. § No duration requirement. A very brief confinement will suffice. § If P has actual knowledge of a reasonable means of escape, then there is no confinement and no liability. ● Reasonable means no threat of harm to P or property. The means of escape can't expose P to risk of embarrassment. EXAMPLE: If there is an open window on the first floor and P knows about it, there is no confinement. If there is an open window on the third floor and P would have to jump and risk injury, this is not a reasonable means of escape. EXAMPLE: Don takes all of Susan's clothes and leaves her in the middle of the woods. Because Susan does not have a reasonable means of escape, Don has falsely imprisoned her. o Against P's Will - Consent is a defense. EXAMPLE: Paul is apprehended by an undercover store detective. He is taken to a back room to wait while the detective calls the police. Paul says he will wait for the police and then threatens to sue for false imprisonment but cannot because he has consented to the confinement. o P is Aware of Confinement or Injured Thereby (harm/damages) § If P is aware of confinement: P is entitled to any damages the jury finds appropriate. § If P is unaware of confinement: P can only claim damages if injured by the confinement.

Assault

● Rule: D intentionally causes P to be in reasonable apprehension of an imminent harmful or offensive contact. o Intent: D must: ▪ act with the desire to cause an immediate harmful or offensive contact or the apprehension of such contact, or ▪ know that such a result is substantially certain to result. o Reasonable Apprehension - objective standard. ▪ A reasonable person in the same position as P would have experienced the same apprehension. ▪ If the apprehension is reasonable, it doesn't matter whether D could actually carry out the threat. For instance, brandishing an unloaded gun can still be assault. o Imminent Battery: Battery must be able to occur almost instantly. EXAMPLE: If Dracula says he will come back tomorrow to suck your blood, it is not an assault. ● Look for words that negate intent -> no assault. For example, "If it weren't a tort, I would punch you in the face." ● Words alone rarely create an assault.

Trespass to Chattels

● Rule: D interferes with P's chattel, causing damages. o Intent ▪ D intentionally performs the physical act that interferes with P's chattel. ▪ Liable even though D did not intend to trespass. ▪ Mistake is not a defense. EXAMPLE: Dale is leaving a restaurant and takes a blue denim jacket, believing it is his but it actually belongs to Paul. This is sufficient to create intent for trespass to chattels. o Interference: Uses or borrows without authorization. o Plaintiff's Chattel: P's personal property. o Actual Damages: Unlike trespass to land, proof of actual damages is an element of the cause of action for trespass to chattels. Actual damages to the chattel itself are not necessary; however, actual damages would include the value of loss of use of the chattel during a dispossession or the cost to remedy an intermeddling. EXAMPLE: Same facts as above. If Dale only keeps Paul's jacket for five minutes, this will not be significant enough to constitute actual damages. However, if Dale keeps Paul's jacket for a week, this would likely be significant enough and Paul would likely be able to recover the rental value of the jacket. EXAMPLE: Pam and Dexter are at Pam's apartment. They are playing a game where every time "foreseeability" comes up, they do a shot of tequila. Once they finish the first bottle, Pam says she will go to the store to get more. Pam's dog is in the backyard, and Pam tells Dexter not to let the dog in the house or touch the dog. Pam comes back to find Dexter holding the dog and sues for trespass to chattels. If the dog is unharmed, Pam will not have a valid claim against Dexter.

Conversion

● Rule: Intentional act by D, where D exercises dominion or control that causes the destruction of, or serious and substantial interference with, P's chattel. o Intent ▪ Purpose intent or knowledge intent ▪ Mistake is not a defense. D is liable even if acting in good faith. EXAMPLE: Dale takes Paul's jacket and loses it. Paul sues for conversion and Dale is liable because he had the purpose to exercise dominion and control over the jacket and, by losing it, there is a serious and substantial interference. Dale would have to pay fair market value. o Dominion and Control (BFP) EXAMPLE: Cruella steals Peter's Ming vase worth $1,000,000. Cruella sells the vase to Drake, who pays fair market value. Peter can sue Cruella for conversion. If Peter cannot find Cruella, Drake, as a converter, can be sued (as a bona fide purchaser). Either has to pay $1,000,000 to Peter or return the vase. o Destruction or Serious and Substantial Interference means the exercise by D of dominion and control over the chattel. ▪ Interference with P's property interest is more significant than trespass to chattel. Longer period of interference and greater use by D leads to conversion. ● Remedies o Forced sale (common): Price will be the fair market value at time converted. o Replevin: Action brought by P to get personal property back.

Trespass to Land

● Rule: Intentional act that causes a physical invasion of P's land and interferes with P's possessory interest in the land. o Intent ▪ D desired to enter the land/caused something to enter, or ▪ D knew that land entry was substantially certain to result. EXAMPLE: Irene is driving around and gets lost in an unknown area. She sees Dennis standing on the sidewalk. Irene pulls over and asks Dennis for directions to the freeway entrance. Dennis says to take his dirt road to the end, and make a left. Property doesn't belong to Dennis, but to Prince who has hidden cameras. Prince finds Irene on his property and sues her for trespass. Prince will recover because Irene intended to enter that land and Dennis intended to get Irene to enter the land. ▪ Mistake is not a defense. o Entry ▪ D enters or causes someone/something to enter the land. EXAMPLE: Darla fires a gun across Pete's property. This constitutes trespass because the bullet crossed P's property. ▪ D enters the land lawfully but then refuses to leave when required. ▪ D fails to remove/eject from P's land when under legal duty to do so (ex. tenant stays after being evicted). o P's Land: Anyone in possession can bring a claim (landowner, tenant, adverse possessor). EXAMPLE: Darla thinks she is crop dusting her own land but the pesticide lands on Owen's land. Owen has leased the property to Tom. Tom can bring a trespass to land action because he is in possession of the land. If permanent damage occurred, Owen would have a claim.

Defenses and Privileges to Intentional Torts - POPCANS 6

● Self-Defense o Rule: D honestly and reasonably believes that D used reasonable force to prevent P from engaging in an imminent and unprivileged attack. ▪ D only needs to be reasonable and respond with proportionate force. (if someone is not using deadly force, you can't either) ▪ Once the threat is over, the defense will not work. There must be an imminent existing threat. Cant be retaliatory force EXAMPLE: Donna and Paula exchanged harsh words. Paula says "wait until the next time I see you alone. I am going to teach you a lesson you will never forget." Donna is alone in a parking lot that night when she sees Paula walking towards her with something in her hand. Donna picks up a stone, throws it, and hits Paula, causing injury. Paula sues for battery. Donna intended contact, but argues self-defense based on the earlier threat. Even if Paula was only carrying a fishing pole (as an apology gift), if Donna believed she was threatened, she can respond accordingly. ▪ Deadly force cannot be used against non-deadly threat. ▪ Retreat: ● Some jurisdictions require retreat before using deadly force. ● One never has to retreat from their own home. HYPOTHETICAL: Dylan sees Percy approaching him in a bar, with a baseball bat poised to strike him. Believing that Percy intends to hurt him, Dylan wrestles Percy to the ground. Is Dylan still privileged to defend himself if it turns out that Percy was not actually intending to hurt Dylan? YES. Reasonably believed he is threatened with imminent physical harm.

Proximate (Legal) Cause: Are there policy reasons to cut off liability?

● Unforeseeable Extent of Harm: Does not matter that P suffered more harm than one would foresee. D is responsible for full the extent of harm, as long as the type of harm is foreseeable. o Eggshell Skull Rule: Take your victims as you find them. It does not matter if P is susceptible to greater harm because of a unique susceptibility, like an eggshell skull. ● Unforeseeable Type of Harm: Was the injury suffered within the risk created by D's negligent conduct? EXAMPLE: Dan negligently leaves a jar of rat poison next to the stove with all the other spices. Paulette is using the stove and the heat from the stove interacts with the rat poison in a way that the jar heats up and becomes a missile. The jar smashes into a chandelier, breaking it, and causing $20,000 worth of damage. Dan's lawyer could argue that even though Dan owed a duty to Paulette, that he breached by acting unreasonably, this is not a foreseeable type of injury. The foreseeable injury would be ingesting the rat poison.

proximate cause 2

● Unforeseeable Manner of Harm o Superseding Cause: Unforeseeable, intervening cause that breaks the chain of causation between the initial wrongful act and the ultimate injury. A superseding cause relieves the original tortfeasor of liability for lack of proximate cause. o A cause that intervenes between D's action and P's harm will not always be a superseding cause. o The more culpable the intervening force, the more likely it supersedes. Typically, criminal conduct will be a superseding cause, but not if the criminal conduct is foreseeable. EXAMPLE: Dora negligently fails to provide adequate locks on the front door of the apartment building that she owns. Pat is injured when he is mugged in the laundry room. Pat sues Dora claiming she owed him a duty. Even though there was intervening criminal conduct, it will not be superseding because the harm was foreseeable based on the risk caused by Dora. EXAMPLE: DunCo is a construction company. In violation of statute, it has a worksite that does not have a barricade or flaggers to control traffic in the area. DunCo is probably negligent per se because Parker, a worker, is injured by a car that ends up on the worksite. The facts show that the car is being driven by Laura, Parker's ex-wife, who intentionally runs him over. The type of harm you can foresee is a car driving onto the site, injuring the worker. However, DunCo would successfully argue that they were not the proximate cause because Laura's criminal act was a superseding cause.

negligence per se

● Where D's conduct also violates a statute that does not provide for civil liability (criminal statute), that statute can establish the standard of conduct for breach of duty purposes (ex: crim traffic law). If a plaintiff can successfully assert negligence per se against a defendant, that defendant cannot assert assumption of the risk as a defense o Applicable if: ▪ P is member of a class the law is designed to protect; and ▪ Injury caused by D's conduct is the type the statute sought to protect. EXAMPLE: Legislature in the state of Panic passes a law that says "anyone driving after sundown without headlights is guilty of an infraction punishable by up to a $1,000 fine." This is a criminal law. Dana is driving after dusk without headlights and cannot see Tracy crossing the street, Dana runs over Tracy, injuring him. Tracy sues Dana in negligence and would prefer that the judge use the statute to set the standard of care because it limits the jury's role. o If statute applies (majority rule): Unexcused violation of the law establishes that D breached a duty to P, but P still needs to prove causation and damages. ▪ Exception: Excused statutory violation, like an emergency not of D's own making, or when it's more dangerous to comply with the law. ▪ Exception: Licensing statutes - Not having a license does not create liability. Question is whether someone did something negligent while not having a license ● Expired driver's license is not negligence per se.