Torts 1L

Palsgraf v. LIRR

Cardozo - duty owed only to foreseeable plaintiffs, those that fall within the "zone of danger" are foreseeable. (Majority) Andrews - mimics causation in fact. As long as we can trace your injury back to the defendants conduct, and there is no intervening cause coming into play, then we have proximate cause. (dissent) • "if cause in fact, then proximate cause"

Defenses & Privileges List

**Consent (not really either) Self Defense Defense of Others Recapture of Chattels Necessity Justification

Self Defense/Defense of Others

A person is allowed to use reasonable force in self-defense or to protect others when battery is threatened. • Considerations o Mistake of fact is OK o No right to retaliate, once threat is passed, so has privilege. o Collateral damage to 3rd party while acting in defense, not liable. • Consideration for Defense of Others o Need reasonable belief o Can only use reasonable force if your friend could use force • "Hopkins Sayz" o Don't be a hero, call the cops, retreat.

Covenant Not to Sue

A promise to not pursue judgment against a defendant, but still reserving the right to bring them into the claim. o It is important to name the defendants to ensure at all defendants are not released or protected by the covenant. o Cov. Gives more wiggle room, b/c it can be broken, P can still sue, but will face contractual damages.

Trespass to Land

An unauthorized entry of a person or thing on land in the possession of another. • Protected Interest: Designed to protect the exclusive possession of land. • Test: o 1. Intentional (spec/gen.) or unlawful physical entry upon land o 2. Land of another.

Negligence: general

GENERALLY: Conduct that falls below the standard of care established by law, for the protection of others against unreasonable risks of harm. • Prima Facie: o 1. Duty of Care: statutory, customary, relations. • Question of law. o 2. Breach of Duty: failure to meet the duty • question of fact. o 3. Causation: • Actual causation: factual • Proximate Causation: legal cause, public policy. o 4. Damage: must be shown, not presumed, caused by breach.

Intervening Cause

Generally, any act of negligence (e.g. by 3rd party) or force of nature that occurs after the defendant's initial act of negligence that has caused/contributed to the plaintiffs injuries.

Duty arising to Lessor/Lessee

Generally: no duty of care owed by LL to tenant or other entering land for defective conditions existing at time of lease. o Exceptions: • Where undisclosed conditions (nat/artif) known to LL but not to lessee. (and LL knows Lessee wont discover) • Dangerous conditions to persons outside the premises(trees) • Premise leased for public admission (duty to inspect/repair) • Areas of premise that are under lessors control (stairwells, laundry rooms, hallway) • Lessor contract repairs (assumes duty) • Lessor is negligent in making repairs

Self Defense/Others: Deadly Force

o Only permitted when actor reasonably believes life/great bodily harm is threatened. o Required to retreat before using; unless • In your own home • Retreat would be dangerous • Actor to attempting valid arrest.

Standards of Proof

o Preponderance of Evidence- "More likely than not" - 51% o Clear and convincing evidence: evidence that, when weighed against the opposition's evidence, will produce in the juries eyes a firm conviction and high probability of correctness/conclusion -75% • Required for punitive damages • P has duty to mitigate damages -[Zimmerman v. Ausland]

Circumstantial Evidence

o Provides enough evidence, when there is a lack thereof, that some types of facts can be deduced from a given situation. (Life experiences with bananas, they turn brown)

Joint-Tortfeasors

• Joint tortfeasors are two or more individuals who... oA. Act in Concert: • when one aid another in committing a tort, or encourages another in committing a tort - mutually planned or contriving activity, or action that has been agreed on oB. Preforming a Common Law Duty: • vicarious liability relationship, (employee-employer) oC. Acting independently but cause single indivisible tort: • Two fires join into one.

Control of Awards

• Judicial Control: -Judge can disturb the jury's finding of the amount of damages only if the verdict is excessive or inadequate to an extreme degree to suggest jury acted contrary to the law. o Judge may condition new trial for damages only on remitter/additur • Legislative Control: -Tort reform measures, capping award, limiting the amount of recovery, perhaps my increasing the standard of proof.

Lessor/Lessee: Extended Liability

• Lessors liable for injuries to lessees caused by 3rd parties (assaults, robberies in building, LL should raise rent to compensate ) -[Kline v. Park 100] • When foreseeable (has notice), and reasonable steps would have prevented the injuries. • Why? Because lessees forfeit the right to those areas and lessor has exclusive control.

Jointly and Severally: Procedural Effect

• P can sue any one of them for full amount. • P can sue all of them for full amount. • P can sue several (not all) for full amount.

Informed Consent: Standards

• Patient Focused: What the reasonable patient would want to know about the nature/risks/alt. treatment of the procedure. • Doctor Focused: What the reasonable doctor believes that patient should be told in order to make informed decision. (prevailing view)

Damages: Neg

• Plaintiff has the burden of showing causation, defendant has the burden of raising defenses. o Evidence for these defenses can come from anywhere • Defendant is only responsible for those injuries he has proximately caused. • It is a jury decision as to how damage should be assigned when there are multiple tortfeasors or subsequent acts of negligence.

Private Necessity

• Private Necessity: action only for the benefit of limited # of people. o Defendant is liable for damage caused, but not a tortfeasor. o Protects defense of property: • i.e. Def can tie boat to dock, but responsible for damage. -[Vincent v. Lake Erie] • Not liable for "acts of god", storm causes boat to destroy dock, but no one knew or took action to save boat.

Public Necessity

• Public Necessity: Private property rights are suspended to protect public at large o Defendant is not liable for damages o must be reasonable actions, and then jury to decide. o (blowing up house on fire to prevent spread) -[Surocco v. Geary]

Causation

• Types: (both needed) o 1. Actual Cause: (factual) • the defendants negligence is the actual/factual cause of the plaintiff's injuries. o 2. Proximate Cause: (legal) • A determination of whether legal liability should be imposed where cause-in-fact has already been established.

Negligence Per Se: Generally

• violation of statute can be negligence as "a matter of law"; when... o 1. Plaintiff is member of the protected class of person intended by the legislature as designed to protect. o 2. Plaintiff's injury is the type of injury that the statute was enacted to protect against. • (this may be revealed by looking a the legislative history) o 3. (if criminal statute) Is the statute "fair, workable, wise?" • Considerations Would implementing civil duty amount to culture shock? Clearly defined or obscure? Does statute create liability w/o fault? -[Perry v. S.N.] Injury direct result of violation of statute?

Standard of Care: Doctor Geographical Rules

o Doctors Specific - Geographical Standards • Locality rule: doctor held to standard of care expected by other medical members in same locality (Chicago only) Minority Problems: • Outdated, adopted for disparity of urban/rural. • Immunization of docs from places below standrd • Modified Locality Rule: Doctor is held to the standard of care expected of members med profession in similar locality (i.e. other large cities). (most jurisdictions). Problems: • Are two communities actually similar? • Difficult to obtain experts (fraternity) • National: Holding doctors to standard required under uniform national proficiency and certification. (increasing)

Duty of Informed Consent

o Duty to have a conversation with patient o RULE: Before being able to obtain a patients consent, doctor must obtain a patients "informed consent". o REQUIREMENTS: • 1. Explain the nature of the procedure • 2. Discuss alternative methods of treatment • 3. Explain the material risks • 4. Reveal any economic/personal interests-[Moore v.Regnts] • EXCEPTIONS Risks are already known/obvious Disclosure would be detrimental to patients health. Emergency situations: P in no position to determine treatment.(i.e. Shock, unconscious).

Jointly and Severally (common law)

o Each defendant could be held jointly (collectively liable) for the injuries to the plaintiff • E.g. if there are three defendants, then each assigned a pro-rata share of the damages (ex 3 defs, 1/3 each) o Also, each defendant can be held individually liable for the entire amount owed to the plaintiff.

Elements of P.I. Damages

o Elements of P.I. Damages: -[Anderson v. Sears Roebuck] • 1) Past physical and mental pain • 2) Future physical and mental Pain • 3) Future/past medical expenses • 4) Loss of Earning Capacity • 5) Permanent Disability and Disfigurement

Contributory Negligence (multiple tortfeasors)

o General rule: at common law, if the plaintiff was responsible in any way (any amount) for her damages, she is bared from recovery. o Exp: P is 5% contrib neg. award in $1000, P gets nothing. o Harsh rule, only 4-5 jurisdictions follow this.

Affirmative Duties & Failure to Act

o Generally: there is no duty to rescue a person in peril. o Exceptions: duty imposed in some situations • A. Special Relationships Common carriers (innkeepers, mass trans.) Ship Captain & Crew Employer/Employee Jailor/Prisoner Teacher/Student Parent/Child Husband/Wife Special 3rd Party relationship -[J.S. v. M.S.] Position of control to prevent harm -[Tarasoff] • B. Plaintiff injured by instrument under defendants control and the injury is a result of plaintiff's own negligence. • C. Defendant negligence causes injury to plaintiff • D. Voluntary assumption of duty Once someone assumes duty, the volunteer is responsible not to perform duty negligently.

Remittitur

o In cases of excessive damages, court may grant a new trial which is conditioned upon plaintiffs refusal to accept lessor $.

Additur

o In cases of inadequate damages, court may grant new trial conditioned on defendants refusal to pay a larger sum. (less freq.)

Misfeasance

o Misfeasance: Active misconduct that works a positive injury to other (Defendant misperforming contract) o Considerations • If defendants acts are misfeasance, probability of tort action greatly increases, and lack of privity would not bar recovery. • Public Policy: Judicial efficiency, valuing utility company. -[Renssalaer Water Co.] • Professional Relationships: if suing for professional negligence in relation to K, must be in direct privity.

Trespass to Land: considerations

o Mistake of fact is not a defense o Damages are presumed. - [Dougherty v. Stepp] o Liability is extended to those who force others to enter. o Invisible Trespass: particle matter; requires actual damages. - [Bradley v. American Smelting] o Landowners hold a right to space in the reasonable reaches of the land. (shooting gun over prop.) -[Herrin v. Sutherland] Continuing Trespass o Once an invitation to use land expires, you are a trespasser. o (snow-fence posts on land for city) - [Rogers v. Board of Commish]

Self Defense/Others: Non-Deadly Force

o Must be weighed as reasonable or not. o Must prove force was necessary o No duty to retreat

Nonfeasance

o Nonfeasance: Inaction or failure to take steps to protect plaintiffs from harm (e.g. when there is only a promise, and its breached) o Considerations • If defendants actions constitute nonfeasance, then contract action will lie, and not tort. • Plaintiff must be in privity. • Exceptions: when it poses a danger to public, absent privity, a duty will lie -[MacPherson v. Buick]

Proving Negligence

1. Circumstantial evidence 2. Res Ipsa Loquitur

Defenses to Negligence

1. Contributory Negligence 2. Comparative Negligence 3. Assumption of Risk

Rescuers

"Danger invites Rescue" -Cardozo • They are foreseeable • rescuer is owed an independent duty of care, similar to that the original victim of def's negligent conduct. • Rescuer has not "assumed the risk of injury" • Rescuer must act with "reasonable care" when perfoming • Rescuer will still have to establish the elements • Fire Fighter's Rule: Rationale: PP, and assumption of risk by employment)

Defense of Property

"Life is more important that property" • Considerations o Reasonable force ok / force capable serious bodily harm/death is only ok when owner believes threat of serious bodily harm or death will result otherwise(spring gun is a no go) -[Katko v. Briney] o Verbal request to leave must be made first, unless it reasonably appears that imminent violence is threaten, or request will be futile. o No request to leave needs to be made if a reasonable person believes the conduct of the intruder would indicate they are threatened when one is on their property. o Barbed wire is OK

Instances sufficient to break proximate cause

"When an intervening cause will rise to the level of a superseding cause." •A. Highly, extraordinary, independent act & Acts of God (yun v. Ford, Derdiarian v. Felix cons.) depends on the foreseeability of the act •B. Intentional Acts of 3rd parties Criminal acts of 3rd (Watson Ky. V. RR Co) Plaintiffs suicide - becomes a superseding cause only if it is done intentionally and rationally. However, if it occurs due to uncontrolled organic breakdown, then no break in proximate cause •C. Public Policy limitations (e.g. fairness, policy, societal interests) (Kelly v. Gwinnell; Enright v. Eli Lilly Co.(Rx). no liability for social hosts. Intergenerational claims will break casual connection.

Superseding Cause

(e.g. intervening act of negligence) is one that occurs after the defendants act of negligence but has become important enough to take over full responsibility for causing the plaintiffs injury. • Generally, proximate cause will be broken when intervening act of negligence rises to the level of being a "superseding cause."

Types of Awards

-Nominal -Compensatory -Punitive

Indemnity

Allows someone who is without fault, who has been compelled by operation of law to defend against a wrongful act of another, to then recover from the wrongdoer the entire amount of his loss, + Atty fees. o Usually arise through vicarious relationships. (employee/employer) o Party seeking indemnity must not be responsible in their actions for the harm caused.

False Imprisonment

An act with intent to unlawfully restrain/confine another to a fixed area with no reasonable means of escape. (no legal justification). • Purpose: A dignitary tort designed to protect/prevent a person dignity and freedom of movement. • Test: o 1. Intent (specific/gen.) - to unlawfully restrain against their will • w/o legal justification; w/o consent. o 2. Confined to a fixed/bounded area. o 3. No reasonable means to escape. o 4. P must be aware of confinement at occurrence or must suffer some actual harm.

Shopkeeper's Privilege

An enjoyed right by "shopkeepers" to detain a person for enough time to conduct a reasonable investigation. o Must have reasonable belief of theft. o Store grounds, and extends to parking lot. -[Bonkowski v. Arlen Dept. Stores] o Circumstances will dictate reasonable time (no more than 40min) and scope (dark room/confined) of investigation.

Collateral Source Rule

An evidentiary rule that disallows the use of medical or other records to show that a plaintiffs cost of recovery was subsidized or lessoned, for the purpose of the defendants argument that they should only be liable for the damages equal to what the plaintiff was required to pay. (i.e. insurance reductions, personal favors). o Sometimes allowed to disprove plaintiffs false testimony.

Assault

An unlawful or intentional action in a rude or angry manner such to create subjectively in mind of defendant a well-founded fear of an imminent battery couple with the apparent present ability to do so. Purpose: designed to police against the creation of the mind of plaintiff the violation of his/her person • Key Definition: Apprehension - an awareness that an action is, or could be reasonably imminent. Test: o 1. Intent (specific/general) - to cause an apprehension of imminent harmful or offensive contact o 2. Plaintiff experiences a well-founded belief of apprehension • Fear(not determinative), Awareness o 3. Defendant has apparent ability to carry out the apprehension • subjectively judged • (tort is "completed" at moment of apprehension)

Contributory Negligence: As a defense

At common law (minority), it is a total bar from recovery if a plaintiff is any % at fault. o Exception: • "Last Clear Chance"

Several Liability

Each tortfeasor pays no more than his apportioned share, and the injured bares the loss of any uncollectable shares. (D1 only 1/3 of $1000).

Duty Owed: Trespassers

no preexisting duty, but one may arise. "Undiscovered": they assume the risk; but landowner cannot willful or wantonly injure them (spring guns) "Discovered": If actual or constructive knowledge; then a duty to avert danger by reasonable means at time of discovery (blow whistle, brakes)-[Sheehan]

Consent

It is the voluntary agreement by a person in the possession and exercise of sufficient mental capacity to make an intelligent choice to do something proposed by another • Not a defense technically, but acts like one. • Wipes away the wrongfulness of the alleged tort. • 1. Types of Consent o Express Consent: Stating or signing that you allow action. o Implied Consent: Looks to the conduct, customs, or circumstances. • Failure to give a reasonable person the idea you do not submit to the action. • Silence may or may not be consent. • Women consent to vaccine by rolling up sleeve and seen others receive vaccine prior. -[O'Brien v. Cunard SteamShip]

Duty Owed to those Off the Land

Off the land - Duty owed • "Naturally Occurring Conditions": No duty of care owed for injuries occurring off the premises due to natural cond. Exception: TREES - duty of reasonable care: via either express or constructive notice. • "Artificial Conditions on the Land": A duty to exercise reasonable care for protection of people off the land. (balls flying out of baseball field0 -[Slv v. Wilmington]

Necessity

Privilege to use, or trespass upon or destroy the property of another (land chattels) to prevent against a public emergency, that is big enough to effect the public at large, or a private necessity.

Proximate Cause

Proximate Cause: Proximate cause is a policy decision made by the legislature or the courts to deny liability for otherwise actionable conduct based on considerations of logic, common sense, policy, precedent, and justice/fairness. TEST: Foreseeability o Considerations • Fairness and justice • Public Policy • Foreseeability Proximate cause will be established for unforeseeable physical injuries to person; In contrast to property where proximate cause will not be established for unforeseen outcomes of a defendants actions.-[Bartolone] -"You take your plaintiff as you find him" -Arbitrary limits set by the court

Release

a surrender of all of the plaintiff's claims, forever. o A common law, release of one defendant from liability resulted in the release of all defendants. o Today; can get around this by naming defendants and reserving the right to pursue the other defendants.

Recapture of Chattels

Reasonable force to recapture/protect chattels if... • Considerations o Entitled to immediate possession o Demand for return, and been refused o In "fresh pursuit" ( 72 hours at most) - otherwise must use courts.

Res Ipsa Loquitur

Res Ipsa Loquitur: "The thing speaks for itself" • Type of circumstantial evidence, a method of "indirect proof" of negligence that encompasses all 4 elements. • Test: 1. The instruments causing the injury is within the exclusive control of the defendant -[Ybarra][st. fracis] 2. The event/accident is not the type of thing that would normally happen if proper care was observed. 3. The injury is not due to a voluntary action by the plaintiff. • Res Ipsa in Use: Reserved for rare instances, situations where such things don't normally happen Reasonably prudent person will judge what is rare. • (Car crash not rare)-[McDougle]

When a Duty may Arise

o "Intrinsically Dangerous" - something that was designed to be dangerous. (not a baseball bat) - [Lubitz v. Wells] • Public policy implications protecting items on private land. o "Foreseeability" - the measure of duty is established by the reasonable foreseeability of its occurrence. (removing gasoline cap created spark) -[Gulf Refining v. Williams] o "Customs" - duty may be subject to industry customs, companies must account for average circumstances (protect frozen pipes) -[Blyth v. Birmingham]

Defense: definition

That which is offered and alleged by a party processed against in an action or suit as a reason in law or fact why the plaintiff should not recover or establish what he seeks.

Privileges: definition

The ability to act contrary to another individual's legal right without an legal redress for the consequences of that act.

Conversion

The intentional exercise of dominion or control over a chattel, which so seriously interferes with the right of another to control it that the action may justly be required to pay the other the full value of the chattel (forced sale). • Protected Interest: possession, control, or rights to control of the owner of chattels. • Test: o 1. The intentional exercise of dominion or control o 2. To the chattel of another o 3. The intentional act results in a serious interference with the possessory rights of the owner.

Satisfaction

The plaintiff's receiving of full compensation for the plaintiff's injury. o Plaintiff is entitled to only one satisfaction of judgment. o Once satisfied, all defendants are no longer liable. • To allow further collection would be unjust enrichment.

IIED

The recognition of a right to be free from serious, intentional and unprivileged invasion of mental and emotional tranquility. • Test: o 1. Intentional (spec/gen), OR reckless conduct • reckless: acting in total disregard for other's rights o 2. Extreme & outrageous conduct • going beyond the bounds of conduct tolerated by society. o 3. Must be causal connection between wrongful conduct and emotional distress. o 4. Plaintiff experiences severe emotional distress • judged by reasonable person.

Justification

This is a grab bag privilege; A generic term where it would be unfair to hold the defendant liable, but doesn't fit any other privilege. • [Sindle v. NYC Transit] - bus driver charged to keep kids safe, and bus free of damage, conflicting duties, no other privilege applicable.

Comparative Fault (pure)

o Divides fault based upon a % of responsibility. o Liability is divided by the proportion of responsibility each tortfeasor bears to the plaintiff. o Exp: P is 10% contributory neg. award in $1000, P gets $900 o (Majority of jurisdictions) o Comparative fault and Joint/Several can be coupled (majority)(IL)

Assault: considerations

Words alone are not enough Words coupled with actions: yes Words threatening illegal actions: yes. "give me your wallet or I will kill you."

False Imprisonment: considerations

[Big Town Nursing Home]- homerun case for FI. o Awareness - [Parvi v. City of Kingston] o Remaining someone to clear your name, not FI [Hardy v. LaBelle] o Unlawful arrest is FI [Enright v. Groves] o Denial of reasonable means of escape (boat) is FI. [Whittaker v. Sandford] o Retaining personal property may amount to FI. o Denial of entry is not FI. o *******If injured during escape, when safer to remain imprisoned, (no liability, or not FI????)

Contribution

a mechanism that allows an overpaying defendant to collect the over payment from the remaining joint tortfeasors. (only in negligence claims, not intentional torts) o Procedural Avenues of Contribution: • A. Separate suit: usually in neg. actions Not available for joint tortfeasors • B. Cross Claims: amongst defs within the same suit. • C. Impleader: allows a defendant to bring another defendant into the law suit. (dont need to know these) Immune defendants are also immune from contribution actions

Respondent Superior

doctrine which holds employers responsible for the intentional conduct of their employees when the employee is acting within the scope of their employment. - [Western Union Telegraph].

Intent

measured subjectively. Evidentiary support is objective. • a. Specific intent - acting willfully, with purpose or design. • b. General intent - acting with knowledge to a substantial certainty o [Garret v. Dailey] • c. Mistake - not a defense o [Ranson v. Kitner] • d. Insanity - no defense o [McGuire v. Almy] • e. Minors - can be liable; usually at age 5

"Last Clear Chance"

if, after the plaintiffs conduct in a contributory negligence situation, P can show that def had the last opportunity to avoid the outcome and the def failed to take it, then P can still recover despite being contributory negligent.

Calculating if Duty

o 1. Cost-Benefit Analysis: If exercising a duty of care to prevent harm is not overburdening, then you are obligated to meet that duty of care. • Securing rail turntable is easy, proximity to pedestrian walk -[Chicago B&Q v. Krayenbuhl] • Guard rails on highway not secure enough. Too costly to apply everywhere. - [Davidson v. Snohomish Co,] o 2. Formulas • If (Burden < probability * Injury), then duty exists. • Risk-Utility Risk>Utility then no required to act w/in reason. Risk<Utility then negligence. o 3. The Reasonably Prudent Person • Courts judge defendants as reasonable people under the circumstances. • Common law duties require people to act in manner to prevent harm. Expectations for All: • Gravity, leverage, fire is hot, ice slippery, cars dangerous, bullets kill, basic memory

Standard of Care: Customs

o 1. Customs: used to show standard • evidence of custom is not conclusive evd. of negligence. • Failure to meet custom still evaluated by reasonable person. (bad idea to use REAL glass shower door) [Trimarco]

Transferred Intent

o 1. Intention tort is set in motion (A, B, FI,IIED, TL, TC) o 2. Incomplete action toward intended target o 3. Resulting in an intentional tort to another

Four Principles of Compensation

o 1. Restore the plaintiff to original state o 2. Money is the only tool available to the jury for making plaintiff whole. o 3. Damage awards are all inclusive: • whether past, present, future, but be included in lump sum on the day the judgment/award is given. o 4. Judicial review of civil verdicts are limited • mostly allow new trials for excessive or inadequate awards.

Tort actions under Contract Law

o 1. Tort actions under Contract law (i.e. product liability, misrep) • Why it makes a difference? SOL, damages rules, defenses o Three Approaches: • Allow the plaintiff to chose venue and cause of action • The Court determines themselves • Misfeasance vs. Nonfeasance

Standard of Care: Emergencies

o 2. Emergencies: • An unforeseen, sudden, unexpected occurrence. • (suns blinding rays expected, no emg.) • If injury occurred during qualifying emergency situation then person is held to an emergency standard of care. [Cordas v. Peerless Trans] • **if emg is caused by plaintiffs negligence

Standard of Care: Disabilities

o 3. Physical Disabilities: • A person with a physical disability is held to standard of care that a reasonably prudent person of same disability. [Roberts v. Louisiana] • Intoxication may qualify as disability of involuntary.

Standard of Care: Children

o 4. Children • Held to act as reasonable child of same age/intelligence. • Exception: when child engaged in inherently dangerous behavior or adult activities, then adult standard. • "Rule of Seven's" (minority) 0-7 - incapable of negligence 7-14 - presumed incapable, rebuttable 14-17 - presumed capable, rebuttable • Majority: Children can be liable starting at age 3-4

Standard of Care: Insanity

o 5. Insanity: • If condition was preexisting and the defendant had prior knowledge of condition, insanity is no defense for lack of care. • When insanity does come into play, it will treated like emergency doctrine. (but not wash away all)

Standard of Care: Professionals

o 6. Professionals: • Who? Those that undertake work which requires licensing or special skills (doctors, lawyers, accountants, engineers) • Considerations Standard of care is objective, and applies generally to that industry (not subjective) -[Boyce v. Brown] P must offer expert testimony Professional negligence is malpractice Some prof have no standard of care (Clergy/Teachers) Prof standard applies to pro bono work Not assumed must be proved • EXCEPT: when negligence is so obvious such as leaving a sponge inside patient after surgery. Statutes should prevail over customs; due to fraternity protection of defendants by experts -[Hodges v. Carter]

Conversion: Hat Hypos

o A keeps B's hat for 3 months → conversion o A allows B's hat to blow into the sewer → conversion o A grabs B's hat intends to steal, but returns it quickly → conversion applicable, but B prob wants hat back (conv. not good choice) o A mistakenly takes B's hat, returns once he notices minutes later. → no conversion, not intentional.

Compensatory Damages

o Compensatory: The closest financial equivalent of the loss or harm suffered. Goal to make the plaintiff whole again. • Injury to Property: loss of value/cost to repair, purchase new • Injury to Person: Special or General damages.

IIED: considerations

o Conduct tolerated by society is always changing. - [Slocum v. Food Stores of Florida] o If IIED causes physical harm, for sure IIED.-[State Rubbish v. Siliznoff] o Must be proven causal connection between act and harm (stuttering) - [Harris v. Jones] o 3rd party IIED Claims: (1) Defendant must have knowledge/intent plaintiff will be harmed. (2) P is present/witness (daughter saw father beat) - [Taylor v. Vallelunga]. o This tort relaxes requirement of intent (allows for reckless). o "Transferred intent" not applicable.

Spacial Regulations

o Congested area: 1,000ft above highest obstacle. 2,000ft horizontal. o Non-congested: 500ft above the surface. (not water, light popul.)

Consent: contact sports

o Consent amounts to those touches that are customary in a game. But one does not consent to intentional battery that are outside of the safety rules of the game. -[Hackbart v. Bengals]

Consent: fraudulent

o Consent obtained via fraud is invalid. • Mistake of fact is no consent -[DeMay v. Roberts] • Consent under duress/threat is no consent • Consent given must be in regard to the specified activity, otherwise not consent.

Battery: Considerations

o Crowded world; some contact is inevitable - [Wallace v. Rosen] o Extended liability for unforeseen injuries to the reasonable person from intentional harmful/offs contact - (classical) [Cole v. Turner] o No intentional tort liability for unforeseen injuries in the eyes of reasonable people. - (modern) [Spivey v. Battaglia] o Objects can become extensions of ones body, not only person on person contact. - [Fisher v. Carrousel Motor Hotel] o Awareness - plaintiff need not be aware of harmful contact. (i.e. if under anesthetic)

Evidence: Types

o Demonstrative: Tangible evidence, such as photos, charts, film. o Witness Testimony: • Eye witnesses to the occurrence of event • Expert testimony - utilized when the subject matter is beyond the scope of comprehension for lay person/jury. Expert witness are a "dime a dozen"

Punitive Damages

o Punitive Damages: Additional sum above and beyond compensatory • Test: Plaintiff must prove defendants actions are a "reckless disregard for the rights of others" (wanton, willful, reckless) • Purpose: deter and punish wrongful conduct • Creates of Common Law: legst. control, modify, abolish. There are no rights to punitive damage, no 5th amd. taking. -[Cheatham v. Pohle] • Evidence: requires clear and convincing evidence: 75% • Standard of proof: reckless(higher than negl.) • Excessiveness: Generally courts allow for 1:1 ratio punitive to compensatory. Beyond single digit is excessive. Factors to consider • Degree of reprehensibility • Disparity in harm and punitive (145:1 is excessive) -[State Farm v. Campbell] • Punitive vs. Civil penalties award by state law.

Conversion: considerations

o Remedy: Forced Sale: • Plaintiff is entitled to the fair market value of the chattel at the time conversion occurred. • If one wishes to retain chattel, don't sue under conversion. • If forced sale, title passes to new owner. o Duration of control, interferes with owners use. o Whether harm done to chattel, such that no use to return to owner. (but no actual damage is required) o Perhaps the good faith of the person who interferes. o Mistake of fact is no defense. o "Transferred intent" is not applicable. o Making copies of document w/o dispossession, not conversion. (unless docs contain IP or business plans) -[Pearson v. Dodd]

Types of Damages

o Special Damages: Those easily reduced to dollar figures. • Medical bills, lost wages, taxes, inflation. o General Damages: Those not easily reduced to dollar figures. • IIED, loss of enjoyment of life, malpractice, stress.

Comparative Negligence: defense

o Types: • Pure: no wiggle room on percentages P recovery=(total damage) - (P's % of fault) If multiple defs, add their % together • Modified Comp. Neg.: begs a question of when P is more liable than the defendant) "Not as great as": • P can only recover if his fault is 49% or less "Not greater than": • P can still recover as long as his fault is not higher than the defendant. (up to 50%)

Consent: medical

o patients must give express consent to non-emergency procedures. o Implied consent is applicable when: • a. patient unable to give consent because unconscious etc. and life/limb is threatened. • b. prior consent is given for another operation, and new condition is discovered during the course of that operation. Unforeseen, and threatens life/limb. Liable for battery if not within course of prior consented operation -[Mohr v. Williams] • Considerations Doc has consent in emg. but not required to act Doctor must comply if asked to stop mid-operation. Minor's must have parental consent, unless emg.

Duty Owed: Licensee

person who enters land to further their own personal agenda (companions, entertainment, house guests) Duty to Warn - of hidden dangers unknown to licensee, but owner is aware of. (violently insane son is not known) -[Baramore] • (also door to door sales, public employees)

Duty Owed: Invitee

person who enters the land of another in the furtherance of the landowner's business (providing owner with economic benefit) (i.e. customers, concert goers) Duty of Reasonable Care: • Duty to inspect the premise followed by duty to repair. Considerations • Duty extends to bathroom • Not to stock room; unless given permission to pick out items to buy. o If no permission then trespasser o If permission but to get free stuff; change to licensee • Bananas? Duty arises after 30/45 min???

Battery

the intentional infliction of harmful or offensive contact Test: o 1. Intent - specific or general o 2. Harmful or Offensive o 3. Contact • judged by reasonable person

Fire Fighter's Rule

the rescuer is precluded from recovery for injuries if the risk created by the defendant is the type of risk that is reasonably anticipated by the job.

Assumption of Risk

voluntary, defense for neg. only, not int. torts) o Test: • 1. P must know of the risk • 2. P can appreciate the magnitude of the risk this is judged by P's ability/cognition/maturity • 3. P voluntarily proceeds toward the risk. o Trump card, it voids the entire claim if one assumes the risk, it does not merely reduce the amount of recovery.

Res Ipsa Loquitur: Procedural Effect

• 1. Creates an inference of negligence, which the jury may use or not as their judgment dictates. (Majority)-[Crabtree] • 2. Creates a rebuttable presumption that requires the jury to find defendant negligent if they cannot produce sufficient evidence to rebut presumption. (Minority) • 3. Creates a rebuttable presumption & shifts the burden to the defendant to come forth with evidence (i.e. preponderance of evidence) to show he was not negligent

Effect of Violation of Statute (Neg per se)

• 1. Unexcused statutory violation is Neg Per Se (Majority) Defendant is allowed to offer excuse, if none, court can declare violation as matter of law. Shorthanded approach to establish elements of duty & breach. (conclusive proof) -[Martin v. Herzog] • 2. Violation of statute is negligence per se (minority) Strict liability, court declares as matter of law.[Zeni] • 3. Violation of statute is used as evidence of Negligence evidence for the jury to accept or reject

Contributory Negligence

• A level of conduct tat falls below the level of care to protect ones self against unreasonable risk of harm.

Actual Cause

• A. Actual Cause: an act or omission is not regarded as a cause of an event if the particular event would have occurred without it o Tests: • "But For": the defendants conduct is a cause of the event if the event would not have occurred but for that conduct. Not a cause if the event would have occurred anyway. Use: if single element is alleged as cause. • (trip over "disrepair" step)-[Gentry v. Ranch] • "Substantial Factor": the defendants conduct is a cause of the event if it was a material element (substantial factor) in bringing about the harm. (subt. factor if injury/harm would not have occurred without that factor) Use: multiple elements at stake • (fat lady moving too fast, no railing or lights in train car) -[Reynolds v. Texas Rail] • (Train speeding, car speeds)-[Perkins v. NOLA] • **Courts look at probability not possibility.

Why Damages?

• Corrective Justice: restoring parties to original condition by compensation. • Deterrence: Threating defs with liability for costs of tortuous actions. • "Avoidable Consequences": Plaintiff will not be allowed to recover for damages he could have avoided by acting reasonably.

Special Duty: Child Trespassers

• Courts have been reluctant to apply the same limited duty owed to adults to child trespassers/licensees. • Courts usually impose a higher duty toward children Pub policy to protect kids from injury. • Restatements 339: Landowners owes reasonable care to protect child trespasser from physical injuries resulting from artificial conditions on the land when... 1. The place where condition exists is one the land owner knows/reason to believe children are likely to trespass; and 2. The condition is one that land owner know/reason to know involve unreasonable risk of death/serious inj. 3. The child, due to youth, doesn't know risk involved with intermeddling with condition; and 4. The utility to land owner to maintain condition/burden of elimination of danger, is slight compared to risk kid faces.