Torts Final

Consortium Damages

-A loss of consortium damages claim is an action that the plaintiff or injured person's spouse, child, or parent is typically entitled to bring based on injuries to him or her and deriving from the injuries to the spouse or parent. -They are a means of compensating for imprecise, intangible losses.

Joinder of Comparative Fault in TN

-Briefly, with some exceptions, if a D in an answer or amended answer alleges the fault of a person not a party to the action, P may add the non-party as a party D within 90 days and avoid any statute of limitations defense asserted by the new D. -It provides a way for all potentially at-fault parties to be brought before the court as Tennessee has the shortest statute of limitations in the country.

Social Host Liability in TN

-By statute, if a person is injured by an intoxicated person, there is not a legal claim against the person who merely furnished the alcohol. -Tennessee liquor liability law draws a sharp distinction between individuals who merely furnish alcohol and those who sell it. -E.g., if a P is injured in a car wreck caused by an intoxicated driver, the P has a cause of action against the intoxicated driver, but the P would not have a claim against the host of the Christmas party who served alcohol to the intoxicated driver. -Major Exception to No Social Host Liability: Minors -Adults who permit minors to drink at their house owe the minors a duty of care. -If an intoxicated minor then leaves the party and is involved in a car crash, the adult host can be held liable for any injuries or death suffered by the minor or another person. -This is true even if the adult host did not actually furnish the alcohol to the minors but merely permitted them to drink at their home.

Intervening Force v. Superseding Act

-Intervening Force: One which actively operates in producing harm to another after the actor's negligent act or omission has been committed. -Superseding Act: An actor of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about.

Joint and Several Liability in TN

-Originally, the abolition of joint and several liability as a general rule in Tennessee was done by judicial action in McIntyre v. Balentine. -However, Tennessee statute T.C.A. § 29-11-107 (passed in 2013) codified the abolishment of joint and several liability in almost all circumstances in Tennessee. -Effective July 1, 2013, if multiple Ds are found liable in a civil action governed by comparative fault, each D is only severally liable for the percentage of fault allocated to that particular D. -No D will be held jointly liable for any damages. -EXCEPTION: However, the doctrine of joint and several liability still applies in civil conspiracy cases and in product liability actions based on a theory of strict liability or breach of warranty (among manufacturers).

Limitations on Strict Liability

-Remember that strict liability does not equate with absolute liability; limitations may be placed on a plaintiff's ability to recover in strict liability. -So, for example, when a plaintiff sought to hold a company, which was blasting dynamite, strictly liable when the vibrations from the blasting operations frightened the plaintiff's female mink, causing the mink to kill her kittens, the court refused to impose liability. Although the defendants were engaged in an activity routinely subject to strict liability and the death of the kittens was causally linked to that activity, the court ruled that the defendants were not responsible for the plaintiff's injuries. -The risk of causing harm of the kind here experienced is not the kind of risk which makes the activity of blasting ultra hazardous. -Courts have also placed limitations on liability for Acts of God, if the Acts of God are unforeseeable or unable to be anticipated.

Defenses to Negligence we covered this semester

1) Contributory negligence 2) Comparative fault 3) Assumption of the risk

Restatement of Torts 432: Negligent Conduct as Necessary Antecedent of Harm (Proving Causation-in-Fact)

1) The actor's negligent conduct is not a substantial factor in bringing about harm to another if the harm would have been sustained even if the actor had not been negligent. 2) If two forces are actively operating, one because of the actor's negligence, the other not because of any misconduct on his part on his part, and each of itself is sufficient to bring about the harm to another, the actor's negligence may be found to be a substantial factor in bringing it about.

Restatement of Torts 433B: Burden of Proof (Causation-in-Fact)

1) The burden of proof that the tortious conduct of the defendant has caused the harm to the plaintiff is upon the plaintiff. 2) Where the tortious conduct of two or more actors has combined to bring about harm to the plaintiff, and one or more of the actors seeks to limit his liability on the ground that the harm is capable of apportionment among them, the burden of proof as to the apportionment is upon each such actor. 3) Where the conduct of two or more actors is tortious, and it is proved that harm has been caused to the plaintiff by only one of them, but there is uncertainty as to which one has caused it, the burden if upon each such actor to prove that he has not caused the harm.

Restatement of Torts 28: Liability for Physical Harm: Burden of Proof (Causation-in-Fact)

1) The plaintiff has the burden to prove that the defendant's tortious conduct was a factual cause of the plaintiff's physical harm 2) When the plaintiff sues all of multiple actors and proves that each engaged in tortious conduct that exposed the plaintiff to a risk of physical harm and that the tortious conduct of one or more of them caused the plaintiff's harm but the plaintiff cannot reasonably be expected to prove which actor caused the harm, the burden of proof, including both production and persuasion, on factual causation is shifted to the defendants.

Proximate or Legal Cause includes three areas of interest

1) Unforeseeable consequences 2) Intervening causes 3) Public policy

What states follow contributory negligence?

Alabama, North Carolina, Maryland, Virginia, and D.C.

Irvine v. Rare Feline Breeding Ctr.

Animals Are contributory negligence and assumption of risk defenses to strict-liability animal claims? Answer: Yes. Contributory negligence and assumption of risk are defenses to strict-liability animal claims. -Schaffer owned a farm with exotic animals of zebras, kangaroos, camels, and tigers. Bullington rented a room in the garage from Schaffer and invited Irvine over on many occasions. During one visit, Irvine was drinking and put his hand through the fence with the tigers and it bit him. -Contributory negligence and assumption of risk are defenses to strict-liability animal claims. -Here, Irvine's summary judgement wasn't appropriate because the court couldn't determine if he was allowed to enter the backyard, so they couldn't figure out whether an exception or defense applied. Key Takeaways: · Wild animal case · Strict liability does not equate to absolute liability o Ex. A defendant is not ALWAYS liable. There are some defenses. · Possessors of wild animals are SL if harm results from a dangerous propensity that is characteristic of wild animals of that class with exceptions. · Defenses? o Ex. Trespassers -The Irvine court's decision states the current majority law regarding the imposition of strict liability for injuries caused by wild animals--the possessor of a wild animal is strictly liable for physical harm done to the person or property of another if that harm results from a dangerous propensity that is characteristic of wild animals of that class. In such circumstances, liability is imposed against the defendant without regard to due care used. -If a possessor of a domestic animal (i.e. a dog) knows or has reason to know of the animal's vicious propensities, the animal is classified as a wild animal for purposes of tort law. -Owners and possessors of wild animals are subject to strict liability, even if they have no knowledge or reason to believe that their animal is dangerous -To be strictly liable, the defendant must own, possess, control, or harbor the animal. -Exception: If a wild animal is in a cage and someone goes up to the animal, that doesn't lead to strict liability.

Dillon v. Twin State Gas and Electric Co.

Apportioning Damages among tortfeasors -A 14 year old boy and his friends often played on a bridge in New Hampshire. Electrical wires on the bridge were owned and maintained by Twin State Gas and Electric Co. Twin State knew that the boys used the bridge as a playground. The current in the wires was usually shut off during the day, but Twin State knew that currents still occasionally ran through the wires. On one afternoon, the boy lost his balance on the bridge and grabbed an electrical wire to stop himself from falling. There was a charge running through the wire at the time, and the boy was killed by electrocution. Dillon (plaintiff) brought suit for wrongful death on the boy's behalf. Twin State moved for a directed verdict. D is liable Key Takeaways: · A jury must decide what injury the P would have suffered as a result of his fall and then determine the D's liability.

McGee v. AC and S, Inc.

Compensatory Damages Whether loss of enjoyment of life is recoverable as a separate element of general damages that may be included as a separate item on a jury form. Yes. -McGee was exposed to asbestos through his work and died and his family is suing for loss of enjoyment of life as a separate element of general damages. Key Takeaways: · This Louisiana court found that loss of enjoyment of life is recoverable as a separate element of general damages that may be included as a separate item on a jury verdict form · In sum, this court held that the loss of enjoyment of life is a separable compensable element that a jury may aways separately from pain and suffering. · This is the minority view (TN also follows this view)

Contribution v. Indemnity

Contribution: 1 D seeks to recover from his co-D for the co-D's portion/share of responsibility to P. Apportionment (i.e. sharing) of loss between multiple tortfeasors Indemnity: 1 D seeks to recover from his codefendant the full amount of the loss D1 paid to the P = Where loss is entirely shifted from 1 tortfeasor to another tortfeasor (i.e. permits an all-or-nothing shift of liability).

Burleson v. RSR Group Florida, Inc.

Contributory Negligence -Burleson was placing a revolver on a gun rack in his home, dropped it, and the bullet him him and killed him. -A plaintiff cannot recover in a negligence action if the plaintiff's own negligence is shown to have proximately contributed to his damage. Key Takeaways: · Example of a contributory negligence case · Took place in Alabama · Held that P's own contributory negligence barred recovery (i.e. P put himself in danger's way) o Undisputed evidence of the P's conscious appreciation of the danger. · Dissent o There is no evidence of the decedent's actual awareness of the danger o Leave it for the jury to decide

Davies v. Mann

Contributory Negligence -Davies's donkey was tied on the side of the road. Mann was speeding in his wagon and ran over the donkey, killing it. Davies brought suit. Mann is liable. Key Takeaways: · Shows that the last clear chance doctrine o P's case is not barred due to the P's contributory negligence if the P can show that the negligent D had the last clear chance to avoid the accident. · If you have the last clear chance to avoid the accident from happening, even if its at the last minute, you should do everything you can to avoid the accident from happening. -Last Clear Chance Doctrine: The contributory negligence of a plaintiff will not defeat his negligence claim if the defendant had the last opportunity to avoid the consequence of the plaintiff's negligence.

Butterfield v. Forrester

Contributory Negligence -Forrester placed a pole across from a public road while he was repairing his house. This pole created a partial obstruction of the road. Butterfield was riding his horse too fast and wasn't exercising ordinary care, did not see the obstruction, crashed into the pole, and had severe injuries. Key Takeaways: · Contributory Negligence case: · P's failure to exercise reasonable care is a CIF on P's injury · Complete bar to recovery

McCune v. Myrtle Beach Indoor Shotting Range, Inc.

Express Assumption of Risk -McCune was injured at a paintball indoor shooting range, but she signed a waiver stating that range wouldn't be responsible for any injuries unless they were grossly negligent, but they were not in this case. Key Takeaways: · Express assumption of risk · P's contracting (either in writing or orally) to: o Voluntarily encounter a o Known risk o While appreciating the magnitude of the risk o Created by the D's negligence · If you sign a waiver or orally do so, you are barred from recovery · In sum, if a release explicitly and unambiguously limits a D's liability (i.e. exculpatory contracts) and a P voluntarily enters into the agreement in order to participate in recreational activities, D is not liable. · However, a general release does not relieve a D of liability for gross negligence, intentional or reckless misconduct, or willful and wanton negligence.

Sindell v. Abbott Laboratories

How should liability be apportioned under market share liability? -Sindell developed cancer allegedly as a result of her mother's ingestion of the drug diethylstilbesterol (DES) during pregnancy. - Several drug manufacturers produced DES based on the same formula, and Sindell did not know which manufacturer actually produced the specific drug that caused her harm. -Sindell and a class of similarly affected women brought suit against Abbott Laboratories and other DES manufacturers. Key Takeaways: -Market Share Liability Theory states that each manufacturer's liability is approximate to its responsibility for the injuries caused to P by the manufacturer's own products. -In sum, when several manufacturer's produce identical products that injure P, and it is impossible to know which manufacturer produced the specific product that caused the P's injury, the liability of the Ds is proportionate to their share of the overall market. -In order to not be held liable, a manufacturer would have to prove that its product did not cause the P's injuries (i.e. one way to do this is by proving their product wasn't on the market at the time of P's injury).

Restatement of Torts: Liability for Physical Harm (Multiple Sufficient Causes) (Problems in Proving Causation-in-Fact)

If multiple acts exist, each of which alone would have been a factual cause of the physical harm at the same time, each act is regarded as a factual cause of the harm.

Turner v. Mandalay Sports Entertainment, LLC

Implied Assumption of Risk -Turner was hit by a foul ball at a baseball game. Key Takeaways: · In general, baseball stadium owners and operators do not have a duty to protect spectators against foul balls projected into the stands. · Spectators assume this risk.

Watson v. Kentucky & Indiana Bridge & R.R. Co.

Intervening Causes -Due to the negligence of Kentucky & Indiana Bridge & Railroad Co., a tanker full of gasoline spilled into a street. Duerr struck a match to light his cigar and dropped the match into the gasoline, causing an explosion that injured Watson, a bystander. There was contradictory evidence as to whether Duerr caused the explosion with the match intentionally or by accident. He testified that he didn't know about the gasoline that had leaked onto the streets when he lit his cigar, but then he also said that he wanted to start a fire. Watson brought suit against the Railroad. -A criminal act of a third party that causes harm in concurrence with a negligent act is generally not a reasonably foreseeable consequence of the negligent act. Key Takeaways: · Intentional third party's intervening acts are ordinarily superseding events (e.g. maliciously or wantonly lighting and throwing a match into the vapor/gas) · In sum, generally, the intentional or criminal acts of a 3P cuts off liability for the D's negligent act. This means that D is not liable. · Acts of God will not prevent D from being liable. (i.e. the wind knocks a hammer left on a roof off the house and hurts someone, D will still be liable because D left the hammer on the roof)

Fuller v. Preis

Intervening Causes Can a head injury that results in an irresistible impulse to commit suicide be a reasonably foreseeable consequence of a car accident? -Answer: Yes. To be a proximate cause of an injury, the injury must be a reasonably foreseeable consequence of the alleged conduct and not highly extraordinary. -Lewis was in a car accident caused by the defendants, he hit his head and began having epileptic seizures, he committed suicide because of his seizures. Key Takeaways: · This is a New York case, which means there is a split in jurisdictions from the last case · This NY case held that a P's act of suicide, as a matter of law, is not a superseding cause precluding D's liability in a negligence action · Thus, if P's death resulted from an "irresistible impulse" to commit suicide caused by organic brain damage, then D is liable.

La Quinta Inns, Inc. v. Leech

Intervening Causes Generally, is suicide an unforeseeable intervening cause of death? Yes. Key Takeaways: · In contract to Fuller, GA court in Leech stated that, as a general matter, suicide is an unforeseeable intervening cause of death. D's are not liable. · This court concluded that based upon the evidence, Mr. Leech's act of suicide was the sole proximate cause of his death · Thus, his suicide was a superseding event breaking the chain of causation, so D's are not liable.

Derdiarian v. Felix Contracting Corp.

Intervening Causes May a contractor in charge of a worksite be held liable for injuries sustained by a worker that result from a driver negligently crashing his car into the worksite? -Yes. Negligence liability is only proper if the defendant's act was the proximate, or legal, cause of the plaintiff's injury. -Derdarian was working on a gas main for Felix Contracting Corp., Dickens was driving down the road and had a seuizure and crashed his car into the worksite and hit Derdarian causing him to spill a kettle of enamel all over himself. Derdarian burst into flames and is suing Felix for not ensuring a safe worksite. -Derdarian wins. Key Takeaways: · Intervening act of a third party does not necessarily sever the causal connection between D's negligence and the P's injury · Connected is severed only if the intervening act is a superseding cause o It may be a superseding cause if it is extraordinary, unforeseeable, or independent from the D's conduct, which means that it does not equal/mean liability o However, it is not a superseding cause if the intervening act is a normal, foreseeable consequence of the situation created by the D's negligence does equal/mean liability. o My own notes: foreseeable consequences, not superseding events means liability.

Bierczynski v. Rogers

Joinder and Liability of Defendants -Bierczynski and Race were drag racing their cars when Race lost control of his car and crashed into the Rogers' car. The Rogers brought suit against both Bierczynski and Race. Key Takeaways: · Participation in a motor vehicle race on a public highway is an act of concurrent negligence imposing liability on each D participant for an injury to a non-participant resulting from the race regardless of which of the racing cars directly inflicted the injury or damage · All D drag racing participants are wrongdoers acting in concert and each D is liable for harm to a third party arising from the tortious conduct of the other. · In sum, both D drivers are jointly and severally liable for P's injuries. · The plaintiff can collect the full amount from either defendant. Under joint several liability, it doesn't have to be paid by both 50% and 50%.

Coney v. J.L.G. Industries, Inc.

Joinder and Liability of Defendants Does a court's adoption of the comparative negligence doctrine effectively abolish the possibility of joint and several liability? No. -Jasper was killed using a hydraulic aerial work platform manufactured by J.L.G. Industries. J.L.G. argued that Jasper was guilty of contributory negligence and that Jasper's employer had also negligently contributed to the accident. Illinois adopted a pure comparative negligence system. Coney, the administrator of Jasper's estate (plaintiff), brought suit against J.L.G. Key Takeaways: · In Illinois, the doctrine of comparative negligence does not eliminate joint and several liability · This is the majority rule · TN follows the minority rule. TN abolished joint and several liability, except in two instances, which we'll discuss shortly.

Atlantic Coast Line R. Co. v. Daniels

Legal or Proximate Cause What does proximate cause mean? -Case where Daniels was driving over a railroad and an employee closed the gates, trapping Daniels and his care between them. Daniels pushed his car off the railroad. Daniels left his car in top gear and was so frightened he forgot he did this. He started the car and the force threw him against the radiator causing injuries. Key Takeaways: -This case provides a definition for proximate (i.e. legal) cause (also known as scope of liability) -Arbitrary limits must be drawn -Legal determination of responsibility (will we hold defendant liable) -Where D's breach of duty was the cause in fact of P's injury, D is not responsible for P's injury, unless D's conduct is the proximate/legal cause of P's injury -RST 431 discusses legal or proximate cause (pg. 377) -Looks at the substantial factor test -The actors negligent conduct is a legal cause of harm to another if (a) his conduct is a substantial factor in bringing about the harm, and (b) there is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in the harm. -RTT 29 discusses legal or proximate cause related to liability for physical harm (pg. 377) -An actor's liability is limited to those physical harms that result from the risks that made the actor's conduct tortious.

Hellums v. Raber

May a defendant be subject to liability for harm to a third person if the defendant knows that another person's conduct constitutes a breach of duty and encourages that person to engage in the conduct? -Raber was hunting deer with his cousin and a friend. Hellums was in the same area with a different hunting party (wearing orange hats). Raber knew there was another party hunting. One of the bullets from Raber's cousin's gun hit Hellums. Hellums sued all three members of Raber's party. -A defendant may be subject to liability for harm to a third person if the defendant knows that another person's conduct constitutes a breach of duty and encourages that person to engage in the conduct. Key Takeaways: -Concert of Action Theory -D's working pursuant to an agreed upon plan, encouraging one another, substantially assist one another -All D's are considered to be CIF

Should a plaintiff be able to recover for a reduced life expectancy due to tortiously-caused injury?

Most jurisdictions do not allow as part of general damages a separate recovery for the reduction in the plaintiff's life expectancy.

Boomer v. Atlantic Cement Co.

Nuisance -Atlantic Cement Co. (Atlantic) (defendant) is a cement plant in the Hudson River valley. Its surrounding neighbors (Boomer) (plaintiffs) brought suit alleging that the pollution Atlantic produces as a byproduct of its operation is a nuisance and causes damage to the plaintiffs' properties. Special term determined that this situation is a nuisance. -Rule: Permanent damages, rather than an injunction, are appropriate when the damages resulting from a nuisance are significantly less than the economic benefit derived from the party causing the harm. -A permanent injunction will not be awarded as defendant's operations provide significantly more economic benefit to defendant than the damage caused to plaintiffs. -Generally, an injunction is appropriate in cases where a nuisance would otherwise persist after a trial. However, an injunction in this case would require Atlantic to completely close its operation unless a cleaner method of producing cement could be found. -This would be unfair to Atlantic, as the problem of pollution is one that is experienced by all cement factories, not only Atlantic. -Since the economic benefit of keeping the factory open is greater than the harm suffered by Boomer, the most equitable solution is to award an injunction that will be lifted once Atlantic pays permanent damages to Boomer. By awarding an injunction that will be lifted once permanent damages are paid, Atlantic may keep its business open, and Boomer will be compensated for the harm he may suffer. Key Takeaways -Example of private nuisance

Spur Industries, Inc. v. Del E. Webb

Nuisance When the public develops land in the vicinity of a public nuisance, must the action creating the nuisance be ceased by the party responsible for its creation? -Answer: Yes. Spur must cease its cattle operations, but is entitled to compensation from Webb. When the public develops land in the vicinity of a public nuisance, the action creating the nuisance must be ceased by the party responsible for its creation, however, said party is entitled to compensation. -Del E. Webb Development Co. (plaintiff) was developing a retirement community for senior citizens on land it purchased adjacent to a plot owned by Spur Industries, Inc. (Spur) (defendant). Spur was a company involved in the raising of cattle. Webb Development's purchase of its land occurred after the initial presence of the cattle farm. Webb Development brought suit against Spur because it argued that the smell from the cattle operations was a nuisance, and should be enjoined. Key Takeaways: · A residential landowner who "comes to the nuisance" may not have relief if he knowingly came into a neighborhood reserved for industrial or agricultural endeavors, even if he is damaged thereby. · However, where the public interest is at stake, an injunction may be issued conditional on P paying the costs of the abatement.

Kelly v. Gwinnell

Public Policy Is a host who serves alcohol to a guest, knowing that the guest is intoxicated and has to drive home, liable for injury that the guest causes in the negligent operation of his vehicle thereafter when such negligence is caused by intoxication? Yes. -The Zaks served Gwinnell two or three drinks knowing he had to drive home. Gwinnell was visibly intoxicated when he left. He caused a car accident with Kelly, causing serous injury. Key Takeaways: · This case discussed social host liability · NJ Court imposed liability on a social host for serving alcohol to an adult social guest, knowing that the guest was intoxicated and would subsequently be operating a motor vehicle. · In sum, in NJ, social hosts who serve alcohol to a guest who is intoxicated are responsible for the harm caused by that guest to 3Ps. · This case follows the minority rule. -TN follows the majority rule.

Vicarious Liability

Refers to the cases in which one party is held responsible for the wrongful acts of another by virtue of some type of relationship or status connection between them (i.e. employer held liable for employees actions if employee was acting within the scope of their employment).

Rylands v. Fletcher

Strict Liability: Activities -Fletcher (plaintiff) operated several underground coal mines on land adjacent to land on which Rylands (defendant) had built a reservoir for the purpose of supplying water to his mill. Rylands employed engineers and contractors to build the reservoir. In the course of building the reservoir, these employees learned that it was being built on top of abandoned underground coal mines. This fact was unknown by Rylands. After the reservoir was completed, it broke and flooded Fletcher's coal mines. This caused damage to Fletcher's property, and Fletcher brought suit against Rylands. -Rule: A person who disrupts the natural state of real property by lawfully bringing something onto his land that, if it escapes, is capable of doing harm, is strictly liable for any harm occurring as a natural consequence of the escape. Key Takeaways · Certain activities can be considered as strict liability · House of Lord's Ruling: If D is engaged in a non-natural use of his land, D acts at his/her peril (i.e. is strictly liable for injuries that result) · Exchequer Chamber's Ruling: When D keeps something likely to do mischief if it escapes, D keeps it at his or her own peril (i.e. is strictly liable for injuries that result) -"Ultrahazardous" is used to define activity subject to strict liability. Ultrahazardous activities are those that involve a risk of serious harm, which cannot be eliminated by the exercise of care and is not a matter of common usage. -In determining whether an activity is ultrahazardous, the focus is on the activity itself. Contrast that with the approach taken by the Restatement, which adopted the term "abnormally dangerous." The Restatement shifted the focus away from the dangerousness of the activity itself to considering the appropriateness of the activity in the place and surrounding in which the activity takes place.

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

Strict Liability: Activities Is shipping hazardous chemicals by rail through metropolitan areas an abnormally dangerous activity? No. -American Cyanamid Co. (defendant) leased a railroad car to ship 20,000 gallons of acrylonitrile, a highly toxic and flammable chemical. Missouri Pacific Railroad handled the car and directed it to a yard outside of Chicago owned by Indiana Harbor Belt R.R. (plaintiff). One-quarter of the chemicals leaked out. Indiana sued Cyanamid under strict liability to recover the costs for negligently maintaining the car. -No need to impose strict liability on Cyanamid because the chemical wouldn't have eroded the car. It was negligence on the manufacturer of the car, not the manufacturer of the chemicals. Key Takeaways · Transportation of chemicals is NOT an abnormally dangerous activity. No strict liability for that activity. · If an activity is hazardous of abnormally of dangerous is a question of law, and NOT a question of fact. · RDT: "unhazardous" · RST and RTT: "abnormally dangerous" · Leatherwood v Wadley, a TN Strict Liability Case · Tennessee courts have traditionally classified ultrahazardous activities as those presenting an abnormally dangerous risk of injury to the persons or their property. · Examples of unhazardous activities in TN: o The carrying out of blasting operations o The storage of explosives or harmful chemicals and o The harboring of wild animals

What does Causation-in-Fact mean?

That it is more probable than not that a negligence action will occur

Last Clear Chance Doctrine

The contributory negligence of a plaintiff will not defeat his negligence claim if the defendant had the last opportunity to avoid the consequence of the plaintiff's negligence.

Trevino v. Hirsch

To establish liability in a negligence case, must the plaintiff prove that the defendant's negligence was a substantial factor in causing the injuries? -Yes. To establish liability in a negligence case, the plaintiff must prove that the defendant's negligence was a substantial factor in causing the injuries. -Case where David tried to start a fire with gasoline in the woods and accidently splashed some of the burning gas on Trevino causing severe burns. Key Takeaways: -Where several events may have brought about the harm to P and an event other than the D's negligence appears predominant, the alleged negligence cannot be considered a "substantial factor." -They were roasting marshmallows, and since this is a child activity, David is not held liable.

Respondeat Superior

Under the doctrine of respondeat superior, an employer is ordinarily liable for the injuries its employees cause in the course of their work. Respondeat superior imposes liability whether or not the employer was itself negligent, and whether or not the employer had control of the employee. The doctrine's animating principle is that a business should absorb the costs its undertakings impose on others.

Ryan v. New York Central R.R. Co.

Unforeseeable Consequences 1) Whether a person who is found negligent is liable in damages not only for the proximate results of his own acts, but also for remote damages. 2) Is the owner of the first building liable to the second owner for damage sustained by such burning? Answer: No. The damage to Ryan's house was remote and could not have been anticipated by the railroad. Thus, the railroad is not liable for damages. -The railroad set fire to one of its woodsheds, but ended up spreading and burning down Ryan's house. -A negligent person is liable in damages for the proximate results of his own acts, but not for remote damages. -People are liable for their proximate cause and immediate result of injury they cause (i.e. the burning of the woodshed), but people are not liable for remote damages (i.e. the other houses burning) -Remoteness of the damages prohibits a plaintiff's recovery -Materials of the way the houses were made, the wind, etc. are outside forces that can make a fire worse and so the plaintiff wont be at fault for that (This is what homeowners insurance is for). Key Takeaways: -D is liable in damages for the proximate results of his own negligent acts, but not for remote damages. o What we are looking for: o Was it proximate? o Was it anticipated? o An ordinary and natural result? o Was it a natural and expected result? o Was it necessary or usual? o Was it immediate? -Exception: Liability is often held to exist in cases of intentional fires -In sum, this case sets limits in the context of fire cases

Palsgraf v. Long Island R.R. Co.

Unforeseeable Consequences Does a defendant owe a duty of care to a plaintiff if the plaintiff is not in the zone of reasonably foreseeable harm resulting from the defendant's actions? No. -Two men were running to catch a train (one was carrying fireworks in a box), the man dropped the package while train employees were helping him onto the moving train, they exploded on the railway and injured Palsgraf -A defendant owes a duty of care to a plaintiff only if the plaintiff is in the zone of reasonably foreseeable harm resulting from the defendant's actions, which Palsgraf was not. Key Takeaways: · J. Cardozo's zone of danger test · Negligent conduct is the legal/proximate cause of injury if: o The harm is the general type of harm that made the conduct unreasonable in the first place AND o P was within the "zone of danger" · Judge Andrews' dissent = follows Polemis

Wilke v. Woodhouse Ford, Inc.

Unforeseeable Consequences In a negligence case, is the existence of a legal duty determined by applying a risk-utility test? Yes. -Wilke purchased a used van from Woodhouse, Wilke's daughter pulled the gearshift out of park and it ran over Wilke's foot injuring it, but the key was not in the ignition. Wilke bought the van "as is," but Woodhouse failed to reasonably inspect the van for safety defects prior to sale. Key Takeaways: · P must show: o P's injury would not have occurred without the D's negligent action (the "but for" rule); o P's injury was the natural and probably result of the D's negligence; AND o There was no efficient intervening cause b/t the D's conduct and P's injury · The court held that a commercial dealer of used vehicles intended for use on public streets has a duty to conduct a reasonable inspection of the vehicle before selling it in order to determine whether there are any patent defects at the time of sale which would make the vehicle unsafe for ordinary operation and, upon discovery of such a defect, to either repair it or warn a prospective purchaser of it existence.

Atchison, T. & S.F.R. Co. v. Stanford

Unforeseeable Consequences Is a defendant responsible for all injuries that occur as a result of his wrongful act that could have been foreseen, by the exercise of reasonable diligence, as the reasonable, natural, and probable consequence of his conduct? -Atchison operated a train engine. As a result of negligence, the train engine emitted sparks. The sparks caused two fires, which spread and combined. Eventually, the fire spread approximately four miles away and caused damage to Stanford's property. Atchison argued that the damage to Stanford's property was too remote to be considered to be proximately caused by the sparks. -Atchison was found liable for the damages. Key Takeaways: -D is responsible for the first result of his wrongful act and for every succeeding injurious result which could have been foreseen by the exercise of reasonable diligence, as the reasonable, natural, and probable consequence of his wrongful act.

Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co. (Wagon Mound No. 2)

Unforeseeable Consequences Is a reasonable person always justified in disregarding a small risk? No. -Ships owned by Miller were destroyed when the wharf caught on fire and Miller is suing Overseas, the Wagon Mound's owner, for damages. -This case is different than the first case because in the first case officers and crew believed that bunker oil floating on water could NOT ignite, but in this case, officers and the chief engineer knew that bunker oil on water could ignite under exceptional circumstances. -A negligent defendant may be held liable for disregarding a small risk, if the small risk carries potentially massive consequences. -Plaintiff wins in this case because they showed some of D's harm was foreseeable. That is how the two cases differ. P in the first case did not show there was a foreseeable risk. key Takeaways: · Reasonable foreseeability test is used again · The first case established the reasonable foreseeability test and this case established the elements for the test

Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co. Ltd. (Wagon Mound No. 1)

Unforeseeable Consequences Is the polemis test applicable here? No. -Morts owned a wharf where he repaired ships. A ship leaked flammable oil near the wharf. The employees were welding and burning, they stopped when the oil become known. A supervisor of Morts told him the oil was not flammable and so the employees kept working, but then the wharf caught on fire and was destroyed. Key Takeaways: · Disapproves of Polemis · Announces the "reasonable foreseeability test" · It is the foresign of the reasonable man which alone can determine reasonability · The type of harm must be reasonably foreseeable (e.g. injury by fire) · In sum, a D actor should not be liable for all consequences however unforeseeable and grave, even if they are direct. Use the foresight (i.e. foreseeability) test, not the directness test.

In re Arbitration Between Polemis and Furness, Withy & Co., Ltd.

Unforeseeable Consequences Whether the charterer's negligence was a proximate cause of the fire. -The fire was a foreseeable consequence of the negligence. -This case established the directness test: parties are liable for all injury they directly cause that is foreseeable injury from the party's conduct Key Takeaways: · It shows the direct causation test (i.e. "directness" test) · D's negligent act was the proximate/legal cause of P's injury · Fact that D could not reasonably have anticipated or foreseen the extent of the damage is irrelevant · If some harm caused by the D's negligent conduct is foreseeable = D is liable for all of the consequences · Judge Warrington discusses reasonable anticipation of damages -NO · Judge Scrutton discusses remoteness -NO

Papa John's International, Inc. v. McCoy

Vicarious Liability: Respondeat Superior -Conflict between McCoy and Papa John's delivery person, Burke. Burke claims McCoy was threatening and made her stay after delivering the pizza, McCoy said Burke wouldn't leave. A supervisor called the police when Burke returned two hours later. McCoy was arrested and the story was published in the paper and McCoy is suing. (Papa John's and RWT win). -Under Kentucky law, an employer will only be held vicariously liable for an intentional tort of an employee if the tortious act was committed in the scope of employment. Key Takeaways: · Vicarious Liability: refers to the cases in which one party is held responsible for the wrongful acts of another by virtue of some type of relationship or status connection between them · For example, employers can be held vicariously liable for the wrongdoings (i.e. wrongful acts) of their employees committed within the course and scope of their employment under the doctrine of "Respondeat Superior" · Under the doctrine of RS, an employer can be held vicariously liable for an employee's tortious conduct committed during the scope of his or her employment. · In an intentional tort case, the focus is on the employee's purpose or motive in determining whether the employee was acting within the scope of employment. · Respondeat Superior · 1. Employee's tortious conduct has to be committed within the course of their employment and within the scope of their employment (PFD #2-3) · 2. Whether an employee was acting within the scope of their employment at the time of the P's injury is typically a question of fact for the jury to determine (PFD #5) · 3. There is the "frolic and detour" exception (PFD #5)

Summers v. Tice

Whether both D's could be held jointly liable for P's injury, although only one of the D's could have caused the P's injury. -Summers, Tice, and Simpson went quail hunting. Tice and Simpson hit Summers with a pellet one in eye and one on lip. Unknown who hit what, so both are liable. -Under the doctrine of alternative liability, two independent tortfeasors may be held jointly liable if it is impossible to tell which one caused the plaintiff's injuries, and the burden of proof will shift to the defendants to either absolve themselves of liability or apportion the damages between them. Key Takeaways: -Alternative liability theory -Where P can establish that both D's breached duty of care, but the negligence of only one could have caused the injury, the burden of proof (BOP) on the issue of causation in fact shifts to D's to absolve him/herself.

Anderson v. Minneapolis, St. P. & S. St. M. Ry. Co.

Who is going to be responsible for the Plaintiff's damage? -Two fires occurred, one started by an engine of Minneapolis Ry. and the other began on Anderson's property and the two fires merged -It is unclear how the two fires began -Anderson brought suit against the Railroad for negligence. Found in favor of Anderson and denied the Railroad's motions for judgment notwithstanding the verdict and new trial. Key Takeaways: -Each is a causation in fact if each is a "substantial factor" -This case clarifies CIF when the traditional "but for" test fails -When two causes (i.e. fires) combine to cause damage and either alone would have caused the damage, both D's are liable (assuming both are negligent) as long as each was a substantial factor in causing the damage -It doesn't have to be the only factor of the damage, just has to be substantial (that could be on an exam as a question)

Dram Shop Laws (And TN DSL)

· DSL = various state statutes that govern the civil liability of restaurants, taverns, liquor stores and other commercial establishments that serve alcoholic beverages. · DSL generally establish civil liability of establishments arising out of the sale of alcohol to (1) visibly intoxicated persons or (2) minors who subsequently cause death or injury to 3P as a result of alcohol-related car crashes and other accidents. · TN's Dram Shop Law: The general assembly hereby finds and declares that the consumption of any alcoholic beverage or beer rather than the furnishing of any alcoholic beverage or beer rather than the furnishing of any alcoholic beverage or beer is the proximate cause of injuries

TN Suicide Laws

· In general, suicide is not a superseding, intervening, cause of death as a matter of law, but it is a question of fact to be resolved at trial. · The crucial inquiry is whether the D's negligent conduct led to or made it reasonably foreseeable that the deceased would commit suicide? o If yes, the suicide is not a superseding intervening cause breaking the chain of the legal/proximate cause

Loss of Enjoyment of Life Damages in TN

· Is loss of enjoyment of life recoverable as a separate element of general that may be included as a separate item on a jury verdict form in Tennessee? o They say yes. That loss of enjoyment of life can be separate on a jury verdict form · Who makes this determination on how it is listed on the jury verdict form? o It is at the discretion of the trial judge

Joint Liability, Several Liability, and Joint and Several Liability

· Joint liability: Each of several D tortfeasors can be held responsible for the P's entire loss if the other D tortfeasors are unable to pay or it is impossible to determine which D caused P's injury. · Several liability: Each D has an obligation to pay only their proportionate share for causing the P's loss. · Joint and several liability: Where the D tortfeasors bear joint liability to the P (i.e. each D tortfeasors can be held responsible for the P's entire loss) but bear several liability amongst themselves (i.e. each D must only pay his proportionate share). -In sum, P can show that a group of D's caused P's injury and can obtain full judgement against one of the D's in the group.

Proximate Cause Majority and Minority Views

· Majority View: the "foreseeability doctrine" (AKA the "foreseeable risk rule" or the "reasonable foreseeability test") · Minority View: The "direct consequences rule" (AKA the "direct causation test" or the "directness" test) · Tennessee looks to foreseeability as an integral party of the duty determination

Public v. Private Nuisance

· Public: Generally, the D's conduct unreasonably or substantially interferes with a common right of the public. (i.e. interferes with the use by the public of a public place; injures a large number of people = the general public/community at large; or private person suffers special injury beyond that suffered by the community at large. · Private: Generally, the D's conduct unreasonably interferes with the use and enjoyment of property by another person (i.e. by the individual P).