Torts

Reasons for not allowing people to claim mental disease to avoid liability

difficult to figure out the difference between mental impairments to variations of temperament, intellect and emotional balance too easy to feign, too hard to tell their burden impressed on society forces them to compensate society for the trouble they cause the liability of who was in control of the situation

Self Defense: Elements

- Defendant used force honestly and in good faith (subjective standard) -Based on a reasonable fear (objective standard) that the violence was necessary under the circumstances - With a reasonable reaction in terms of level of force Example: Courvoisier v. Raymond A man, who shot a police officer on accident, thinking he was a member of a mob, as a mob tormented him in his front yard, was justified in using self defense because he thought the force was necessary to defend himself from an encroaching violent mob.

Duty to Act Elements

1) knowledge of a potential risk 2) special relationship to the plaintiff example: Harper v. Herman: Social host boat captain owed no obligation to passenger who dove into shallow water head first resulting in his becoming a quadriplegic because, although he knew of the shallow water, he had no duty to warn since there was no special relationship. hypothetical: what if Harper asked if shallow? Omission or lie would be negligence hypo: what if Harper was 10 instead of 20? No liability still since a child should still know water poses a risk hypo: what if Harper announced and gave time? maybe not liable but immoral perhaps hypo: what if Harper was a passenger on a vessel where you could swim after payment? liability because common carrier for monetary gain Under BPL, the cost of warning seems really low compared to the impact and probability of paralysis due to diving so shouldn't boat owner be held responsible? no special relationship

Exceptions for General Rule of No Obligation to aid, rescue, warn, help, etc.

1. Duty from Contract After McPherson product liability is no longer constrained t to immediate privity. Customer can sue manufacturer even if there was a retailer in between. Contract can also determine who bares the liability. Doctor without contract is not obligated to perform services. 2. Special Relationships - economic advantage, relationship of vulnerability common carriers innkeepers landowners who open land to public person who have custody of people unable to protect themselves 3. Voluntary rescue example: Farwell v. Keaton- defendant who offered to rescue friend with knowledge of friend's injuries had a duty after he volunteered and was responsible for damages when he failed to perform adequately exception: if the rescuer finds himself in peril after volunteered duty and leaves making the plaintiff worse off, there may not be liability 4. Non-negligent cause of injury hypo- Obama gets injured by trying to crawl underneath fence at UGA stadium and getting hit by a tractor cutting grass. Once he hits Obama non-negligently he has a duty to help Obama 5. Reliance example with reliance: if a city hires a crossguard for children at school the children begin to rely on, and suddenly the crossguard is removed without notification, there is a liability on the city in the case a child is injured when crossing. None would exist if they gave reasonable warning the crosswalk would be removed soon. example with no reliance: unlike a public service, profiteers do not owe a duty to customers that begin to rely on their product because we value individual autonomy. 6. Non negligent creation of risk if you have accidentally created a risk, you have a duty to remove that risk to avoid tort liability. example- a person whose car breaks down has an obligation to remove car even though they non- negligently created the risk. a cab that picked that person up would not because superior knowledge is insufficient to create a duty without one of these exceptions

Different meanings of Substantial Factor Test

1. Identification of proximate cause 2 Identification of multiple sufficient factors 3. Cardozo Rule

Arguments for Negligence over Strict Liability in Torts

1. Product liability vs. Behavior Liability - strict liability applies to cases such as product liability, or a manufacturer's responsibility to a customer. However the relationship between buyers and sellers is much different than drivers and other roadway users. automobile operators do not produce a product to sell. Blatant relationship between buyers and sellers. 2. Danger v. Safety - there is a reasonable expectation that drivers can drive cars safely 3. Medium between Tortless world vs. Social Insurance - an affordable system is not in place to settle the complexity and cost that would arise from the amount and variety of automobile claims based on strict liability. The legislature would have to create a system but they have not. (tort less world vs. social insurance) 4. Involuntariness and foreseeability - The law does not want to punish people for their involuntary actions without foresight of its possibility Oliver Wendell Holmes says since action is generally good for society and necessary for man to exist, it is wrong to punish someone for doing something wrong if there is no malice and intent most of the time. If a reasonable persona cannot expect damage nor possesses ill will in the ambit of their action, punishment is unjust 5. Utilitarian Pros outweigh the cons - The negatives of driving are generally outweighed by the positives therefore we shouldn't punish people for strict liability if an accident arises but rather should use a negligence standard, which tries to identify whether someone should have foreseen the risk of damage they imposed on another. The costs of the creation of a social insurance system with claims based on strict liability for car wrecks are generally outweighed by the benefits of driving 6. Proximate Cause Ambiguity - the indefinite chain of cause and effect makes it hard to trace which cause should be held strictly liable whereas in negligence risk is weighed in comparison to duties and punishments correspond accordingly Arguments for Strict Liability deep pockets cost spreading quid pro quo Arguments for Negligence weighing costs of precautions against the other benefits of an activity in society use of an objective standard to assess the reasonableness of a tortfeasor's actions if you choose to do something that is not inherently dangerous and you can't reasonably foresee potential dangers, one should not be held liable for unintentional consequences

Protection of Property

A defendant may use reasonable force in defense of their property. A defendant may not willfully and intentionally injure a trespasser in a manner that may result in loss of life or great bodily injury in order to defend their property; unless, Exception: when the trespasser is committing a violent felony with the potential of endangering human life. General rule is that an individual is permitted to use a degree of force commensurate with the threat with which they are confronted. Policy: The value of human life and limb both to an individual and as a matter of public policy outweighs the potential damage to property Example: Katko v. Briney - a defendant who placed a spring loaded shotgun to defend their property against the theft of burglars did not have right to the defense of protection of property because one can willfully and intentionally use lethally violent force to defend against a trespasser unless there is a threat against human life and the trespasser is committing a violent felony. Dissent: Maybe the defendant didn't mean to inflict serious bodily injury or lethal force and therefore would not be culpable. Why should you have a duty to a criminal trying to commit a crime on your property?

Zone of Danger Test (Falzone Rule)

A defendant who accidentally threatens and frightens a plaintiff without physical impact is guilty of negligence if 1. The plaintiff was in the zone of danger 2. The plaintiff experiences emotional suffering due to threat 3. That emotional suffering develops into sickness or bodily injury Example: A woman who is almost hit by vehicle that did her husband can recover emotional damages despite no physical impact because the threat caused emotional suffering which resulted in the development of bodily harm and sickness.

Higher Probability Rule; Causal Link Rule

A proximate causal link requires both 1) a but-for connection between defendant's tortious conduct and plaintiff's harm, and 2) that defendant's conduct increased "the chances of a similar accident in the future"

Assault: Threat of force in the future

A threat of force in the future is not sufficient for the immediate apprehension factor. Words alone cannot constitute assault

Battery: Offensive Touching

A touching is only offensive if it offends a reasonable sense of personal dignity. What if you tickle Obama's nose with bird feathers and he didn't like it? Yes the touch would be offensive Ex. Wishnatsky v. Huey: a client who was shut out of his lawyer's room with a door slam did not have a claim for battery because though there was an intentional touch and no consent, no harm resulted since a reasonable person would not find that touching offensive.

False Imprisonment: Elements from Donut House

Actual or apparent physical barriers Overpowering physical force, or by submission to physical force Threats of physical force Other duress Asserted legal authority

Joint and Several Liability - Joint Tortfeasors

All causes are necessary causes that must be in combination to sufficiently cause injury towards a defendant Example: In a case in which a woman's mink coat catches on fire due to a heater at a gas station, the fabric manufacturer, retailer, heater manufacturer, and gas station are all but for causes of harm to the plaintiff. Woman would be able to recover against all four but most stop once she reaches the full amount of damages. The burden is shifted to defendants to prove that they were not guilty and the others were Example: Johnson v. Chapman- a wall fell on plaintiff's room injuring him yet wouldn't have if either of his housemates had taken care of their walls. Negligence of each was the but-for cause of the harm, producing an indivisible injury Plaintiff could recover from both defendants to reach their limited amount.

Reasonable Standard of Care to Visitors (Heins v. Webster County)

An establishment owes a duty of reasonable care to visitors, persons traditionally considered invitees or licensees, regardless of status based on evaluation of this set of factors: foreseeability of possibility of harm purpose for which entrant entered premises the time manner and circumstances under which the entrant entered the use to which the premises are supposed to be put the reasonableness of inspection, repair, warning opportunity and ease of repair or correction or given warning the burden on land owner / or community in terms of inconvenience or cost in providing adequate protection Example: Heins v. Webster County: A plaintiff who slipped on ice on a social visit to see his daughter at a hospital does not have a cause of action against the hospital based on the traditional common law because he was a licensee but he may have a cause of action based on the new approach.

Hand's Formula for standard of reasonable care: BPL

Burden = Probability of loss * Magnitude of Loss application: if injury resulting from one's actions was either so unlikely to happen or very insubstantial compared that the precautions taken to ensure safety seem adequate, one is not responsible for negligence. when B>PL, no liability if injury resulting from one's actions was either so likely to happen or very substantial that the precautions taken to ensure safety seem inadequate, one is responsible for negligence. when B<PL, liability Example: US v. Carrol Towing Company - a ship owner without a bargee on board in a harbor during wartime traffic and the short wintertime days should be held liable for damages resulting from their ship coming loose because the potential damages are foreseeably great to the point that they should require the burden of a bargee on board. concern of BPL - is it quantifiable? Can we really compare the cost of an electrical wire to the value of human life?

"But for" test (for proximate cause)

But for the defendant's actions, the plaintiff's harm would not result. Example: a child born due to a doctor's negligence to inform that they were pregnant however the parents would have had the child anyways. No causation because the doctor's negligence did not cause the harm

Considerations from Williams v. Utica college when making causal inference

Circumstantial evidence The relative ability of the parties to obtain evidence about what happened Whether the case is one in which there is reason to have different concerns about errors favoring plaintiffs as opposed to defendants

All or Nothing Status

Classic contributory negligence under common law was an absolute defense (all or nothing). If that plaintiff at all contributed to their own injury, that contribution barred them completely from recovery. Reasoning: comparative fault is messy. It's easier to justify and administer contributory negligence Discourages negligent behavior on plaintiff. Critique - may encourage bad behavior for defendant. Exception: In cases in which a negligent plaintiff and a reckless or willful defendant interacted, the plaintiff is not barred from recovery

Rescuer's Risk

If a rescue is negligent, there is no contributory negligence. If it is reckless and wanton or intentionally done poorly, there is contributory negligence. Negligence is not an intervening act (superceding cause) but intentional and grossly negligent acts are.

Policy Bases For Invoking No Duty (EXCEPTIONS FOR NORMAL DUTY RELATIONSHIPS): Ubiquitous Service Providers

Courts are sometimes are concerned about over-punishing a company that provides a ubiquitous service for over-extension of liability because over extension of liability could put them out of business (crushing liability) they are withholding a benefit; not negligently causing a detriment (respect autonomy) Strauss v Belle Realty Company: If a company's gross negligence in providing electricity to the community causes a dangerous condition to large segments of the population, liability may be limited to only people who have contracts even though others injured may have suffered foreseeable injuries because the policy reason to avoid an overextension of liability. Example: Moch: In Cardozo's opinion he states that the absence of a service normally provided does not make a fire hydrant installer who failed to create available water properly negligent during a fire because it is not a negligently caused detriment but a withholding of a benefit

Affirmative Constitutional Defense to IIED: Elements

Defamation elements: - The defendant must have made a false statement of fact about a public figure - With knowledge of its falseness or recklessly without regard for the truth of the statement IIED in this context: Once defamation is fulfilled, IIED can be proven - Intent to cause emotional distress / recklessness in causing emotional distress - Outrageousness! - (offends the reasonable person's generally accepted standards of decency and morality) - Severe Emotional Distress Example: Hustler Magazine v. Falwell - Jerry Falwell was not able to win his suit for IIED after Hustler magazine published a mockery about him having drunken maternal incest because the political cartoon was not a statement of fact but rather a purposeful fiction therefore failing on the element of a false statement of fact.

Preinjury Mitigation of Damages

Defendant must show the enhancement of the injury due to the failure to wear the mitigation device in order to decrease damages owed. Example - seat belts or helmets contributing to the proximate cause or exacerbation of an injury caused by the defendant.

Wrongful Birth and Wrongful Life: Different Methods of recovery

Different methods of recovery limited recovery - includes reimbursement for all expenses related to the botched surgery, the new surgery and the pregnancy/birth procedure and typically includes emotional distress, loss of wages, loss of consortium, etc. full recovery with the offsetting of economic and emotional benefits of a child- includes everything above but also includes child rearing yet it limits damages based on what can be shown to have benefitted the parents about the child full recovery without the offsetting of economic and emotional benefits of a child- includes everything from limited recovery but also includes child rearing as well without offsetting for benefits Emerson approach the correct damages for recovery is under a limited recovery theory excluding emotional distress damages for birth of a healthy child but allowing for emotional distress and handicapped child expense damages until maturity for the birth of an unhealthy child and, in the case that a physician was or should have been reasonably aware of the propensity of the couple for a handicapped child, full child rearing damages until the child's death

Would she be able to recover if she saw her son dead in elevator but didnt see him dying?

It depends. By Thing, she would not because it is insufficient to see consequences. By Etergy Mississippi, Inc. v Acey, she would because there contemporaenous viewing and proximity were not required as long as one saw the horrible consequences

Private Necessity: Elements

Elements of the Private Necessity Privilege - A serious imminent threat - An interest being protected outweighs the interest being destroyed Example: Vincent v. Lake Erie Transportation Co. A ship captain had a private necessity privilege to keep a ship moored to a dock because the ship's value outweighed the value of the dock and a storm threatened to destroy the ship but since damage to the dock due to the mooring was done was from the intentional action to keep moored, and not an act of God or a need to destroy the dock because it threatened the ship, the ship captain owed recompensation.

Express and Implied Assumption of Risk Recoveries Under Comparative Negligence Regimes

Express Assumption of the Risk (Adhesion Contract) - The defendant owes no duty to plaintiff because plaintiff has contracted away their capability to sue (still subject to public policy limitations i.e. Tunkl). Absolute bar to recovery. No comparative fault. Primary Implied Assumption of the Risk - The defendant owes no duty to plaintiff because the plaintiff has assumed the risk inherent in a particular activity. (scope of risk = custom of play) Fails due to lack of proof of evidence for prima facie case in lack of duty. Absolute bar to recovery. No comparative fault. Secondary Implied Assumption of the Risk - Plaintiff knowingly approaches a risk negligently created by a plaintiff. True defense because prima facie case of negligence must be established. - Under Rhode Island law - since contributory negligence is based on objectiveness and assumption of risk is based on subjectiveness as different standards and Rhode Island seeks to prevent people from knowingly engaging in risky activities, assumption of risk should not be able to be compared. Assumption of risk should be an absolute defense. - Under West Virginia/ South Carolina law - since the purpose of tort law is to recompense those who are injured and did not fully or mostly cause their injury, assumption of risk should be compared in a comparative negligence schema to ensure compensation as long as the plaintiff was not more at fault than the defendant in causing the injury. Example: Davenport v. Cotton Hope Plantation A plaintiff, who injured himself by voluntarily walking down an unlit staircase that was unlit due to the negligence of the apartment owner, is not necessarily completely barred from recovery for his secondary implied assumption of the risk because in South Carolina if the plaintiff was not as negligent as the defendant, his damages due to assumption of the risk may be deducted out of his full recovery.

Obligations to Third Parties: Third Party Rule (Tarasoff Rule)

General rule is that no responsibility to third parties but some special relationships give rise to other third parties as well. in those cases here are elements 1. some kind of special relationship to second party 2. a foreseeability of physical injury to the third party (not suicide or property damage) 3. identification of the third party OTHER CONSIDERATIONS: Special skills of party who may owe duty; safety in going about informing the third party, whether judicial precedent sets the triangular relationship Example: Tarasoff v. Regents of the University of California - Psychiatrists and mental health professionals, who can foresee or should have foreseen based on professional standards that their client poses a threat to a specific individual, have a duty of reasonable care to warn that individual despite the concerns of unnecessariness out of eventual inaction and patient confidentiality. Policy reasons: the risk of unnecessary warnings may be given is a reasonable price to pay for the lives of possible victims that may be saved the protective privilege ends where the public peril begins because courts value human life more than confidentiality since modern society is so interdependent and close-knit and that create risks, we have a duty to contain risks when possible Dissent: liability should not apply to those who failed to foresee physical danger because it is so hard to tell whether actions will arise from words/expressions confidentiality is important to prevent determent of those seeking treatment the full disclosure necessary for treatment may be offered less if confidentiality is loose excessie warnings and patient committals to hospitals/asylums would happen to avoid liability

Government's Tort Liability Based on Statute test

Grounds for a private right of action against the breach of duty of the state exists if the plaintiff is one of the class for whose particular benefit the stature was enacted the recognition of a private right of action promotes the legislative purpose the creation of the such right is consistent with the legislative scheme Example: Uhr v. East Greenbush School district: school district was not vulnerable to private of action for not implementing a statutorily required scoliosis test even though the statute meant to protect the plaintiff's child at school and a private right of action would promote the purpose of safety for children through providing a disincentive for non-compliance because the statute explicitly bans a private right of action, preferring an administrative financial penalty instead.

Burden for Proof of Contributory Negligence

Historically was on the plaintiff to prove they were not contributorily negligent. Now the burden is put on the defendant to prove that the plaintiff was contributorily negligent.

Rules with regards to defense of another

Honest and reasonable mistake invalidity - Honest and reasonable mistake is a defense in defense of oneself yet when it comes to defense of another, one is liable for intentional tort action if one is mistaken as to whether an attack is actually about to happen Unawareness - If another is unaware of the oncoming attack one does not have the right to intervene to save them

Substantial Factors Test (Multiple Factors)

If multiple factors were sufficient to cause the harm to the plaintiff, then each defendant can be held responsible for 100% recovery of the injury. example : If two fires were started that were sufficient for the destruction of your property, either of the fire starters could be held liable for your injuries. What if two fires, one started naturally and the other by negligence of a man, would the party who started the fire still be held liable? Yes because there fire was still sufficient to destroy your house

Reasonable Foreseeability Test (Wagon Mound Test)

If a man's negligent actions result in unforeseeable and foreseeable damages to a victim, he is only responsible for the foreseeable damages to the victim regardless of whether those actions directly or indirectly caused the damages. Reasoning: The liability for negligence depends on a mens rea that has been inadequately prudent that is disapproved with a sentiment of moral wrongdoing for which the offender must pay. If one cannot foresee the results of their actions, they don't have an inadequate prudence. Liability depends on foreseeability just like duty depends upon the existence of some kind of relationship whether special or extremely remote. While the natural and foreseeable often coincide occasionally they do not and in those cases the defendant should not be held responsible for the unforeseeable otherwise it would lead to nowhere but the never-ending and insoluble problems of causation.

Causation Inference (Zuchowitz rule; Cardozo Rule; substantial factor test)

If (a) a negligent act was deemed wrongful because that act increased the chances that a particular type of accident would occur and (b) a mishap of that very sort did happen, there is enough evidence for negligent behavior caused the harm. Once plaintiff establishes the inference from this test, the burden shifts to the defendant to proves that no causality exists Example: Zuchowitz vs. US: A woman who died due to increased blood pressure tension, and a dangerous heart rate most likely caused by an ingestion of a pill at an over prescribed rate according to expert witnesses, will be able to recover against the manufacturer of the pill since they can prove the increased likelihood of injury and the actual occurrence of injury, despite the fact that causation isn't 100% provable. The burden is shifted to the defendant to prove they didn't do it at this point. Hypothetical Example of a defendant proving otherwise: In Martin v. Herzog, defendant could show that negligence was not attributed to lights being off because moonlight showed bright. Purpose of Causation inference (Cardozo Rule) : to show fairness in cases where the direct proof of causation is slightly lacking

Rule of Custom

If a custom or practice for risk mitigation is industry standard, the adherence to that standard is evidence to support due care and failure to conform is not that should be considered by a jury. reasoning for rule of custom: custom is a good guide to how society expects a person to behave because it is a reflection of norms and the feasibility, practicality and readiness of the custom. In older days, custom was a sole grounds to determine whether standard of care was fulfilled but then it was recognized that sometimes industries set customs too low to cut costs and the justice system is necessary to protect employees/consumers. It is no longer the conclusive rule but a valid piece of evidence to be considered. Example: Trimarco v. Klein - the fact that an apartment owner had not installed fake glass shower doors as was industry custom should be considered as a piece of evidence by a jury for evaluating negligence

Loss of Chance of Survival Rule

If a doctor's negligence results in the loss of chance of survival of a patient, the patient should be able to recover damages equal to the (amount of money one's life is worth based on normal wrongful death calculations i.e. lost wages etc.) * (% chance of survival immediately before doctor's negligence - % chance of survival after negligence). Proper proof of causation test should be the "but-for" test showing that "but for" the negligent conduct of the doctor, the plaintiff's chance of survival would not have diminished. Example: Matsuyama v. Birnbaum - Since the plaintiff was able to prove that but for the doctor's negligence (prolonged misdiagnosis), there would not have been a substantial decrease in his likelihood to survive cancer, the plaintiff was able to recover damages.

Exception to Reasonable Foreseeability Test: Eggshell plaintiff rule

If one can foresee that one's negligence will result in the harm to another, one is liable for any harm that results to a vulnerable plaintiff out of his weakness even if the exact extent of the damage was unforeseeable Example: Benn v. Thomas When a defendant crashed his car into the back of the plaintiff's car, plaintiff, already suffering from coronary heart disease, died from a heart attack. The defendant is liable for all damages resulting from his crash since he could foresee the harm to the passenger despite not the full extent. Example: Piano concertist/ NBA basketball player Damage to their hands in an automobile incident would result in loss of wages as a form of damages the court places upon the defendant according to the eggshell plaintiff exception.

Compensation for Private Necessity Property Usage

If one uses another's piece of property in a time of necessity, damages arising from that usage are still one's responsibility unless the plaintiff's object or property being destroyed posed a threat to the life or property of the defendant (self defense), or unless an act of God, unavoidable accident, takes place that removes the injury out of the control of the defendant.

Assault: Conditional Threats

If somebody threatens you conditionally to stop doing something that you have a right to do it is an assault If somebody threatens you conditionally to stop doing something that you have no right to do it is not an assault

Bystander's Emotional Harm: Dillon rule

If the plaintiff, during an accident caused by the negligence of defendant, 1) is located near the scene, 2) experienced shock from the sensory and contemporaneous observance of the accident, & 3) the plaintiff and the victim were closely related, they may be able to recover for the defendant should have been able to foresee their negligence causing this reaction. they may be able to recover for the defendant should have been able to foresee their negligence causing this reaction. Exceptions: In Thing v Chelsea , ther was a narrowing of Dillon factors specifying household relatives, parents, siblings, children and grandparents so a godmother would not count. Dillon only limited to family relation Some courts do not allow recovery for domestic partners or unmarried partners for policy reasons including Importance of marriage and family The difficulty of determination of "closeness" causing high administrative costs

Directness Test (Polemis Rule, "Direct Consequence Test")

If the reasonable man can foresee damage will result from his actions, he is liable for that damage even if the particular extent of damage greatly exceeds the damage he expected. Whereas if no damage could have been foreseen at all, in the case that great damage had occurred, the defendant would not be liable. Example: in re an arbitration Between Polemis and Another and Furness, Withy & Co. Ltd. - When a defendant's employees dropped planks into a shipping hold which created a spark that ignited gasoline to create a fire of such magnitude that the ship was burnt down, the defendant was liable for all damages resulting from the negligent act of allowing the planks to fall even though the burning of the ship was not foreseeable according to the directness rule. Hypo (Intervening Efficient Act) - If planks were dropped and then somebody else intentionally lit a match to set the planks and gasoline on fire, then the defendant would not be liable because a new proximate cause has caused the damage. However if a fire fighter failed to put out the fire out of negligence, this would not be intervening efficient act because it was foreseeable.

Action in Concert Liability

If two parties are acting together and in their action cause injury to another, both can be held liable even if only one ends up directly causing the harm. Example: Oliver v. Miles: When two cars were racing illegally in a drag race and one struck a woman but not the other, both racers were liable to the woman because they acted in concert. In essence, "but for" the race, the injury would not have occurred.

False Imprisonment: Unawareness and Harm

If you do not know you are imprisoned, you do not have a claim unless you are harmed while you are unknowingly imprisoned

False Imprisonment: elements and definition

Imprisonment Intent to Imprison Unlawful restraint of an individual's personal liberty or freedom of locomotion that has the effect of an individual being compelled to remain where he does not wish to remain or to go where he does not wish to go. Example: Lopez v. Winchell's Donut House An owner of a donut shop, who locked a door during an office meeting interrogating a potentially stealing employee, did not commit false imprisonment because he did not mean to keep her against her will (she in fact left when she wanted to leave) even though he somewhat created a method of restraint. What if he threatened to fire her if she left? Maybe duress What if they had shown a fake arrest warrant? Maybe asserted legal authority What if they meant to lock her in but there is a doorway to get out? No imprisonment

Limitations to Contributory Negligence (lessens harshness to the all or nothing rule): Refusal to impute contributory negligence

Imputation of contributory negligence- Plaintiff's contributory negligence is attributed to a derivative, responsible party thereby barring the plaintiff's superior from recovery for damages as well. Courts will disregard imputation of contributory negligence in some cases in order to still allow the plaintiff to recover. Example: A parent whose child was somewhat contributorily negligent can still recover in a case where a judge has refused to impute contributory negligence. Contributory negligence is usually still imputed in cases for decedent's loved one's attempted recoveries for loss of consortium or wrongful death.

Consent: Implied Consent

In Vosburg v Putney, the child who kicked the other child may have not been liable for battery had the kick taken place on the playground

Elements of Assault

Intent to touch OR intent to cause imminent apprehension of touching in another The other is thereby in actual and reasonable fear of imminent apprehension of a touch

Market Share Several Liability

In cases in which a group of tortfeasors all committed the wrong negligently to a large number of victims yet it is impossible to prove which one was responsible for which injury but each had different proportions of the overall responsibility for the effect, the tortfeasor is liable for their percentage of responsibility multiplied times the total damages to an individual victim. Example: Hymowitz v. Eli Lilly & Co. When a great many pharmaceutical companies produced a generic drug that had an unforeseen effect of causing the children of customers' to develop cancer much later in life to the extent that the mothers could not reliably remember which drug they had taken, the proper form of recovery was damages calculated through several liability by figuring out the national market share possessed by the drug manufacturers that sold in the area brought to the suit and multiplying that by the total damages of the plaintiff.

Limitations to Contributory Negligence (lessens harshness to the all or nothing rule): Recklessness

In order for one to be considered to be contributorily negligent, the defendant's actions must have been negligent as well. Contributory negligence was not a defense for defendants whose actions were willful for reckless (willful or wanton misconduct). Example: A slightly speeding plaintiff driver (negligent) v. A defendant driver with their headlights off (reckless)

Pre-Injury Conduct As A Non-Bar

Injuries resulting from negligence to oneself as a plaintiff do not constitute a contributory negligence claim to reduce the liability owed by a service provider, who has been negligent in their own duties to tend to the plaintiff. Example: A doctor who negligently operated on a plaintiff who suffered injuries in a car accident due to alcohol cannot lessen damages through a contributory negligence claim

Culpability

Intent - a) the person acts with the purpose of producing the consequence or (B) the person acts knowing that the consequence is substantially certain to result (subjective standard) Recklessly - a) the person knows of the risk of harm created by the conduct or knows facts that make the risk obvious to another in the person's situation, and b) the precaution that would eliminate or reduce the risk involves burdens that are so slight relative to the magnitude of the risk as to render the person's failure to adopt the precaution a demonstration of the person's indifference to the risk. Negligence - failing to exercise reasonable care under all the circumstances

Elements of Intentional Infliction of Emotional Distress

Intent to cause emotional distress / recklessness in causing emotional distress Outrageousness! - (offends the reasonable person's generally accepted standards of decency and morality) Severe Emotional Distress Example: Womack v. Eldridge A woman, who intentionally and deceitfully obtained a photograph of man for use in a child molestation trial to his shock, fear and embarrassment, was found to have committed IIED in that her recklessness caused emotional distress, the conduct went against social norms and the plaintiff suffered from severe emotional distress

Limitations to Contributory Negligence (lessens harshness to the all or nothing rule): The Jury's Role

Juries historically decided cases so frequently to the result that the all or nothing rule shouldn't apply that over time many jurisdictions have simply transitioned over to the comparative negligence rule instead. Juries sometimes would ignore the contributory negligence instruction and award their own comparative negligence instead.

Express Assumption of the Risk: Tunkl Factors (Does An Exculpatory Clause Violate The Goals Of Public Interest)

Level of Regulation: whether the waiver concerns a business commonly thought of as publicly regulated; Public Necessity: whether the party disclaiming liability is engaged in performing a service of great importance to the public; Public Availability: whether the party serves any member of the public who asks; Superior Bargaining Position: whether the party disclaiming liability has a superior bargaining position against the members of the public seeking the service; Standardized Adhesion Contract: whether the party with superior bargaining power presents the public with a standardized exculpatory adhesion contract; and Exclusive Control: whether, as a result of the transaction, the person or property of the consumer comes under the control of the seller and is at risk of carelessness by the seller.

Last Clear Chance Doctrine Under Comparative Fault

Majority Approach - Most jurisdictions disregard last clear chance and award based on their comparative fault theory. Minority Approach - Others will drop the comparative fault theory in preference for full recovery for plaintiff under the last clear chance doctrine Example: Pedestrian ties shoes in middle of the street when a motorcyclist comes down and has time to slow down but negligently fails to do so. Majority: pedestrians fault would be deducted from the damages according to the modified form of Comparative Negligence. Minority: Pedestrian would be able to fully recover.

The Unlawful Acts Doctrine

Majority Jurisdictions: A plaintiff cannot recover for negligence when engaged in a criminal act. Minority Jurisdictions: A plaintiff is not barred for recovery based on their own negligence in a criminal act

Theory Behind Use of the Reasonable Person as a Standard for Negligence

Moral Compass not Average - the reasonable person is not what the average person practices but what the average person knows should have been done from a moral compass Flexibility for Mental Capacity - standards of reasonable care are flexible based on what kind of mental capacity a person has in order to take into account the limitations of the blind, insane and young Limitation of Strict liability - strict liability overlooks the moral intentions and internal capabilities of people and focuses only on the consequence of actions Reasonable, not all, Precautions - to be absolved of liability, one does not have to take all possible precautions, only reasonable ones. Only costs that justify the benefits

Multiple causes in fact: Reasonable Certainty Test (Stubbs Rule)

Multiple causes in fact; Reasonable Certainty Test (Stubbs Rule) - If there are two or more causes to an injury but the plaintiff can present evidence that supports with reasonable certainty that the defendant is responsible for their injury, the defendant is liable for the plaintiff's injuries Example: Stubbs v. City of Rochestor: Defendant city was held liable for the plaintiff's development of Typhoid Fever after the city polluted the water that the plaintiff drinks even though there were multiple potential causes because the plaintiff could prove with reasonable certainty that they were the cause.

Landlord Liability to Tenants

Old rule - Landlord is only liable to defendant for their injuries if their injuries are attributed to a hidden danger is in the premises of which the landlord but not tenant is aware premises leased for public use premises retained under the landlord's control such as common stairways premises negligently repaired by the landlord Reasoning: Landlord has ownership which implies finical interest and capacity to install precautions There is a liability to protect against criminal activity in an apartment owned by the landlord new rule is on page 201

Rationales behind Falzone

New Medical Evidence of Connection between Non-physical harm and physical sickness and injury - The Ward rationale that bodily injury or sickness cannot be the proximate or natural cause of frightening for the average human being is flawed in that new medical evidence head suggested that a causal relationship does exist. Common law Evolves to reflect new scientific understandings - Another Ward rationale that since New Jersey has never created a precedent for awarding damages in no impact cases, a court in a new case shouldn't be able to award damages is flawed because it goes against the grain of common law in which new issues arise all the time which need settling and even if the legal community thought there shouldn't be a cause of action doesn't mean that one shouldn't be created Difficulty to prove should not bar - finally, the concern of people creating fake claims based on physical suffering resulting from fright should not be a real concern because "the difficulty of proof should not bar the plaintiff from attempting the cause of action", tort actions often are allowed even when there is no physical impact and emotional impact is hard to tell, and the court has a duty to discover the truth which means they must sift through false claims. the flood of fraudulent claims is an invalid concern because there is no evidence of over-flooding legal scholars largely agree that the rule is a bad rule courts should aim for "an expansion of the judicial machinery, not a decrease in the availability of justice" Variance in Torts calls for less precedent control - precedent shouldn't hold as much weight in tort cases because by their very nature they are far more varied and there is little if any justified reliance as compared to contracts or property law where stability and predictability are crucial.

The Role of Seat Belt Non-Usage

No Bar For Failure to Wear - Most states at the beginning of seat belt installation and the laws surrounding it made it so the lack of a seat belt was not a bar to recovery based on contributory negligence. Small Reduction In Damages - Some states made it so a defendant could limit some damages based on the lack of a seat belt but only marginally like 5% Full Bar if Failure is Fully to Blame - Some state like CA and NY made it so defendants could raise to the defense so that there was a complete barring of recovery damages for plaintiffs who did not wear seat belts. But only on the condition that the defendant could overcome the burden to prove that the injury was directly related to the lack of a seatbelt. There was hesitance when contributory negligence ran supreme with its harsh all or nothing rule but over time as comparative negligence has become the predominant scheme there has been more embrace of seat belts as a grounds to reduce the defendant's liability for the amount of damages

Private Necessity: Availability of Other Options Requirement

Not required to exhaust all other actions Only has to act reasonably

Procedural Consideration for Res Ipsa Loquitur

Once a plaintiff has proved an injury likely to have been caused by the defendant business owner/medical provider it is on the defendant to prove that their negligence did not cause the injury. A judge may instruct a jury one of three ways once the judge makes a res ipsa loquitur inference it may but need not find the defendant negligent it must find the defendant negligent unless the defendant presents plausible rebutting evidence it must find the defendant negligent unless persuaded that defendant was not negligent

Self-defense: Right to withdraw

Once an aggressor withdraws from the encounter, the victim loses their right to self-defense

Protection of Property: Reclamation Rule

One can use a reasonable amount of force to reclaim a piece of property immediately after it is stolen. I.e. a seat at a game; a bicycle just taken from you Immediacy requirement: However, if you try to take the property back after a significant amount of time has passed, you are at risk of other torts

Protection of Property: Castle Doctrine Variation

One can use deadly force on your property without a need to retreat

Cardozo's Foreseeability Rule

One is only liable to particular plaintiffs that one can foresee being harmed due one's actions. Example: Palsgraf v. Long Island Railroad Co. When a train attendant attempted to help a passenger trying to board onto the train thereby forcing a package filled with explosives to hit the ground and explode, the train attendant was not liable to a plaintiff who was remotely injured due to the shockwaves of the explosives because that plaintiff was unforeseeable. Further application: When toxicity spread through an airport only regular users of airport, air travel companies and outlets in the airport were considered foreseeable victims that deserved compensation.

Policy reasons for Res Ipsa Loquitur (Negligence Per Say)

Out of concern for fairness, NPS solves the problem of proving negligence when it is hard to prove When activities of a company pose a threat to the safety of the community, they have an obligation to ensure safety precautions are taken to prevent harm (Boadle)

Valid Contributory Negligence Defense claims for Doctors in medical malpractice suits

Patients failure to reveal medical history particularly when it is revealed important information would have come of it Patient giving false information Failure to follow physician's advice and instructions Delay or failure to seek further medical attention

Joint and Several Liability and its Justification

Plaintiff can recover his damages from one, some or all of the liable defendants. as compensation is the purpose of tort law, we want plaintiff to have an easier time recovering by making damages more available and causation, (the exact percentage of each party's responsibility), less difficult to prove.

All or Nothing Rule

Plaintiff is able to recover upon the defendant's negligence for all damages only if there was a better than 50% chance of survival before the negligence. If there was a less than a 50% chance of survival, the plaintiff is not able to recover anything.

Elements of Eminent Domain

Private property taken by the government for public purposes -- Can be taken and given to another private individual to create more productivity Just compensation is necessary. (avoids holdout problem and hassles) No immediacy or emergency is required.

Elements of Public Necessity

Private property taken by the government or private citizens In extreme emergencies involving public safety (war, epidemic) No compensation is necessary

Purpose of Torts

Promotion of safety Determent of bad behavior Compensation of victim (if it was only about compensation, all victims of injuries should be compensated no matter what when in many injury cases no is compensated) Spreading losses across society (if it was only about spreading losses, we could have a giant insurance system but we care about putting blame on perpetrator)

Three kinds of comparative negligence

Pure Comparative Negligence - A plaintiff gets to recover a perfect percentage of the injuries that were due to the negligence of the defendant. If the defendant was responsible for only 10% of the harm and the plaintiff was responsible for 90%, the plaintiff could recover that 10% nonetheless. The defendant could recover for the harm that the plaintiff was responsible for as well. "Not As Great As" Modified Version - A plaintiff who is at fault can recover for the injuries caused by defendant as long as those the plaintiff's injuries to himself are not as great as the defendant's injuries to plaintiff. I.e. defendant's fault must be greater than plaintiff's for plaintiff to recover. "No Greater Than" Modified Version - A plaintiff who is at fault can recover for the injuries caused by defendant as long as the plaintiff's injuries to himself are not greater than the defendant's injuries to plaintiff. I.e. Defendant's fault must be greater than or equal to plaintiff's for plaintiff to recover.

Reasons for the Emerson Approach

Reasoning the majority doesn't believe that emotional distress should arise out an unwanted pregnancy that results in the birth of a healthy child because there is a joy and privilege inherent in that. the majority doesn't believe economic/ emotional benefit gains should be involved in the calculation because it is impossible to determine how a child will turn out child rearing is also extremely difficult to calculate and so therefore should be included in the calculation since the parent's decision to forgo abortion or adoption indicates that from a cost-benefit perspective they wish to take care of the kid, it shows that they wish to spend money on the child-rearing so a doctor should not be required to pay out these damages parents should be able to recover emotional distress damages and handicapped child expense damages in the case of unwanted pregnancy suits because financial and emotional drain associated with raising such a child is often overwhelming to the affected parents. Dissent: believe that full recovery with benefit offsets is the best way about going about awarding damages for this kind of case the birth of a unwanted child even if healthy should result in emotional distress and child support damages in that a woman will inherently be left in a Hobson's choice (conundrum) when they have to choose between aborting/putting up for adoption and keeping the child that will leave them in emotional anguish more than likely. An exception for a public policy reason of limiting liability to doctors may be practical in other circumstances but here it stands as a compromise to a constitutional right, namely, a woman's constitutional right to give birth or not. Those who have gotten sterilization procedures have chosen to not have kids so if it fails and they do have kids they are going to be upset about it whether that is due to a lack of economic resources, desire to focus on other aspects of life, or fear of causing genetic problems in the kid. The concept of the joy of children does not exist in these people so that justification should not be used to absolve doctors from liability.

Reasoning in Johnson Rule

Reasoning: Based on precedent in Kalina v. General, parents are regarded as "interested bystanders" to whom no direct duty was owed. Rights are not distractions but exist only correlatively with duties everyone who does not have things go their way in life do not have a pathway for recovery plaintiff must be able to identify the person who wronged him through not living up to the specific duty owed to him by taking responsibility of the child and giving her to the operation of the hospital they created a liability between the hospital and her but not between the hospital and society's sensibilities or their own personal sensibilities to allow this sort of action would be to open up liability for indirect emotional injury suffered by families in every instance where the very young, or very elderly, or incapacitated persons experience negligent care or treatment. open up the floodgates for indirect parties who get sad to sue suits involving severe emotional distress related to negligence in handling deceased family members is much different than this case and they do not apply

Reasoning for Hymowitz Market Share Several Liability

Reasoning: Even though it is practically impossible to determine which out of the 300 manufacturers caused the harm to the pregnant mother patients because of the great time lapse, forgetfulness, lack of documentation, and generic branding of the drug, the manufacturers should still be held responsible for the injuries they most probably caused. Alternative liability is inappropriate because, unlike in the Summers v. Tice case, where only two defendants owed a duty to the injured and it was certain either one of them caused the injuries and therefore the burden of proof could be justifiably shifted to them to prove the other did it and not the other, there were over 300 manufacturers and only one drug taken from one of the 300, who also came and went periodically from the business. Concerted action liability is inappropriate because there were parallel efforts of business models to sell the drugs which by no means insinuates that all 300 were working together to produce, distribute and profit off the drugs. A cause of action is still necessary to "achieve the ends of justice in a more modern context in which contemporary products and marketing techniques create inordinately difficult problems of proof. It would be unjust to make the injured pay for their injuries just because it is difficult to prove out of 300 which manufacturer did it. Market share is better because it allows for the payment out of damages to the injured but limits the liability of the defendants to an extent proportionate to the risk they imposed on the market based on their size of market share. It should be several only even if not all market participants are being sued despite the fact this will result in incomplete recoveries to plaintiffs because we wish to prevent undue levels of burden on the defendants (they should only be responsible for the market share's worth of damage they caused) Dissent: in agreement with the majority except with respect to the fact that market proportionality is strictly conformed to as a mode of recovery in which several liability is the only means similar to alternative liability, the dissent thinks that if a prescription pill company can prove that the plaintiff could not have ingested their pill based on the way it looked they should not be held liable despite the fact their market share may have been much longer than a smaller company's with a less identifiable form of pill he also felt that companies that were unable to exculpate themselves should be held jointly and severally liable as to allow plaintiffs to recover the full amount they deserve.

Changes to negligence system due to the adoption of comparative negligence

Res ipsa loquitur - even if an inference of breach can be made, the court still must determine whether the plaintiff was possibly contributorily negligent and deduct damages from the whole on that basis Proximate Cause - Negligent plaintiffs cannot be superseding causes because their fault is apportioned along with defendant's now.

Different Approaches to Duty to Protect Customers From Criminal Acts: Specific Harm

Rule - a land owner does not owe a duty to protect from comes of 3rd parties unless he has knowledge of specific imminent harm Pro's - pro-property rights/ individual liberty Con's - outdated, too restrictive in limiting liability Example: If a bouncer witnessed a custom being harassed and did nothing to stop it,

Different Approaches to Duty to Protect Customers From Criminal Acts: Prior Similar Incidents

Rule - the recency, frequency and similarity in the evidence of past crimes may create a duty Con's - creates confusion because too many different standards have been applied using different required number of times and required closeness of similarity

Bright Line Rule For No Liability For Emotional Distress Damages To Closely Interested 3rd Parties (Johnson Rule)

Rule: Except for extreme circumstances, closely interested third parties cannot recover damages for emotional distress over a service providing organizations failure to live up to obligations to the individual they do have a responsibility towards. Example: Johnson v. Jamaica Hospital - Parents of a child do not have a cause of action for severe emotional distress when a hospital loses their child Exceptions: A mother of a newborn injured in childbirth can recover for emotional distress whether she is conscious or not out of fear that unnecessary use of anaesthetic might become more common if she only recover with consciousness In Larson v Banner Health Systems, a parent is able to recover when the hospital loses their child leading to separation for over 43 years. Larson is more severe because mother is deprived of child for 43 years and thinks she is mother of a child she isnt and has been accused of adultery. There is a deeply emotional response. Gammon example - improper handling of corpses almost always leads to cause of action for emotional distress damages. Distinction - the service is to the family; not a baby for instance.

Foreseeability test for emotional damages (Gammon Rule)

Rule: If a defendant could have reasonably foreseen the severe emotional damages that would result from their negligent behavior in their duty to the plaintiff, the defendant is liable for damages to be paid out to the plaintiff. There will be no compensation for the super sensitive feelings of the eggshell plaintiff. One must only foresee the damages reasonably thought to affect an ordinary rational person. Example: Gammon v. Osteopathic Hospital of Maine, Inc. - despite none of the traditional categories of emotional distress damages being applicable, a plaintiff suffering serious emotional distress and subsequent physical injury due to the non-tactile stimulus of a severed leg he believed belonged to his father was able to recover damages from the negligent hospital because the hospital should have foreseen that their negligence would likely result in his emotional suffering.

Different Approaches to Duty to Protect Customers From Criminal Acts: Balancing test

Rule: Similar to BPL --- Burden of precautions vs. foreseeability * the gravity of harm pros: economically and socially it prevents deterrence to help poor communities existence, frequency and similarity of prior circumstances and location, nature and condition of property are all taken into account cons: does not take as many factors in consideration

Different Approaches to Duty to Protect Customers From Criminal Acts: Totality of Circumstances

Rule: uses nature, condition, location of the land and recency, frequency and similarity of past crimes in the area along with any other relevant circumstances to determine liability like physical characteristics of premises, nature of business, other security measures and owner's own observations of criminal activity Pro's- Many more factors taken into account Con's- too broad a standard. imposes too much liability upon landowners in high crime area and thereby deters them from wanting to bring commerce to criminal areas

Reasons for the difference of treatment of social hosts and commercial vendors of alcohol

Social hosts are not capable of handling their guests' alcohol consumption like a commercial vendor Commercial host has a profit motive and therefore should be expected to monitor behavior commercial host is better organized with more financial assets to handle issue extension of third party liability to social hosts would have results too sweeping and unpredictable Unreasonable to mandate social hosts live up to a duty to abide by activities - Card? Monitor? Pat down? Breathalyze? Dissent: A civil tort that has a basis in a criminal law should apply to all citizens that break the law that cause damage to 3rd parties. No one should be above the law.

Plaintiff No Duty Rule

Sometimes comparative negligence fails because of a no duty rule in which the plaintiff owes no duty to oneself. Example: a child that has sex with a teacher at school can not be said to have been contributorily negligent as a bar for school's liability because of the same concerns with statutory rape and the solemn duty a school has to protect its students

General/Specific Rules Regarding Statutory Adherence

Specific: If a statute is clear in definition of an exact standard of care and/or establishes an explicit necessary safeguard to a danger, then any violation against that statute requires punishment. General: If a statute is general in its definition of the limitations and expectations of the prescribed kind of behavior, extreme circumstances can permit an omission of liability for those behaviors. Reason behind the rules: A strict adherence to a generally stated statute can be prohibitive of justice when in extreme circumstances its proscribed behavior contradicts its intended goals. Example: Tedla v. Ellman - a general rule in a statute mandating that pedestrians be on left side of the road does not fulfill its goal of the protection of life when being on the left side of the road would endanger one more than being on the right.

Statutory Bar

Statutes can bar the defense of contributory negligence out of concern that those that cannot protect themselves should not have contributory negligence used against them. Example: Statute requires that a school bus driver watches out for the kids as to not hit them out of knowledge that Schoolchildren getting off a school bus may very well be negligent however they should not be punished for their cluelessness because they are children

Consent: Examples of Forms of Touching that Reside Outside of Scope of Consent

Statutory Rape Assisted Suicide Punching in a football game Knife used in an agreed upon fist fight

Exceptions to the Reasonably Prudent Person Under Normal Circumstances

Superior abilities - with great power comes great responsibility. use your abilities because if you do not, you will be held responsible in case it would have helped note: inferior abilities do not justify an excuse- live up to the standard of care or pay the price Physical disabilities- Must be held to a standard of care of a person with their disability (blindness, deafness, etc.) note: being a woman is not a physical disability Children- a standard should be used that is commensurate with age, experience and wisdom when engaged in activities appropriate to their age, experience and wisdom. (children engaged in adult activities are still held to RPP note: policy reasons for different treatment of children- experimentation is important for integration to society, adults should be able to anticipate the dangers kids pose, children are not capable of reason note: elderly people are not excepted because even if they can't do better they know better. (already integrated into society)

Policy reasons for vicarious liability Why hold corporations strictly liable for the unintentional torts?

There is a quid pro quo relationship. If you engage in actions to gain a benefit for your business, you should be responsible for the outcomes or byproducts of your business efficiency- since a corporation has deep pockets they may have an easier time of handling the spreading of costs

Reasons For Not Allowing IIEC Unless Defamation Exists for Public Officials

The first amendment gives us the freedom of expression which has the purpose to promote the freedom of individuals, the freedom of the community and also the pursuit of truth Public officials let down their guard and take a risk by putting themselves out there. They also usually have better means of defending themselves. Involuntary Public figures have the same burden as well though. Public criticism of public government officials is a fundamental element of the freedom of speech in America One mechanism by which public criticism is carried out is through political cartoons. Although falsehoods will occasionally occur throughout public dialogue, only when the right level of culpability (intentional, recklessness) accompanies it should the freedom of expression be punished otherwise people would be far less willing to express their beliefs out of fear that strict liability for false claims would punish them; therefore, derogatory speech about public figures should have a cushion. To censor political cartoons for outrageousness would lead to the tyranny of a subjective standard that could impinge upon the freedom of expression and lead to less free speech. In the world of debate about public affairs, many things done with motives that are less than admirable are protected by the first amendment because we see political cartoons and free political dialogue as important to freedom in our nation for the pursuit of truth. The depiction in hustler did not violate the standard of obscenity or the standard of fighting words that would render it unprotected speech.

Self Defense: Subjective Standard

The interpretation of whether the violence was necessary under the circumstances is based on whether it was actually reasonable for the person to believe what they actually believed at the time of the murder

Birkner rule

To determine culpability of principal through respondent superior, an agent must be determined to be within the time and place of their employment shift primarily concerned and motivated by the service to the principle engaged in activities related to employment Example: Christensen v. Swenson - since it was debatable whether an employee security guard, who injured another in a car accident while coming back from a nearby restaurant to grab food during her shift, possessed all of the above mentioned elements, a jury was needed to settle the facts outside of pure application of the standards of law

Consent

To one who is willing there is no wrong done. Mutual Combat Majority Rule - a party consenting to a mutual combat in anger can recover for damages arising out of their fight Mutual Combat Minority Rule - a party consenting to a mutual combat in anger cannot recover for damages arising out of their fight unless an excessive force takes place or a malicious intent to do serious injury upon the plaintiff is proven Hart v. Geysel rule - a sportsman, who expressly consented to engaging in a fight as a matter of business or sport, should not have a right to recover any damages that he may sustain as the result of the combat Example: Hart v. Geysel: A boxer's wife cannot sue for wrongful death due to his death in a sports fight he expressly consented to.

Bystander's Emotional Harm: Jafee Rule

To recover for negligent infliction of emotional distress for bystander witnesses requires proof of the following elements, 1) the death or serious physical injury of another caused by defendant's negligence; 2) a marital or intimate familial relationship between plaintiff and the injured person; 3) observation of the death or injury at the scene of the accident; and 4) resulting severe emotional distress. Example: Portee v. Johnson - A mother who witnessed her son die a slow and painful death as he was enclosed in an elevator and crushed to death and later fell into a deep depression should be able to recover emotional distress damages from the elevator company and the apartment complex because she watched her child at the scene die of a badly build elevator due to defendant's negligence and, subsequently, suffered severe emotional distress.

Elements of Battery

Touching (harmful, offensive) Intent to touch - purpose of causing contact or knowledge of substantial certainty that such contact will result. (Ill-will, pranksterism is not necessary) w/o consent or privilege Example of Battery Garratt v. Dailey: A boy, who pulled out a chair from underneath his aunt not knowing she was about to sit down and claiming he tried to put it back but couldn't in time due to his small size, was questionably guilty in that even if he didn't mean to cause harm he still may have known with substantial certainty that the harm would result. The touch was the withdrawal of the chair and he did not have the consent from the aunt to pull out the chair.

Common law Rules of Trespasser, Invitee, and Licensee

Trespasser: If somebody on property is uninvited, they are a trespasser and the property owner owes them no duty of care. Exception: Unless they are known or they are children and there is an attractive nuisance on the property Invitee: If somebody is invited for business purposes or through an extended offer to the public, they are an invitee and the property owner owes them a duty of reasonable care to protect them against known dangers and foreseeable dangers through inspection. Licensee: If somebody on private property is invited for social purposes or any other purpose besides material interest/ public offer, they are licensees and the property owner only owes a duty of care to protect them from known dangers. Example: Carter v. Kinney: A visitor for a bible study to a house was considered a social guest and therefore a licensee, so when he slipped on ice, fell down and injured himself, the owners of the house were no liable for damages because they did not know of the danger. Reasoning: - Social guests are expected to use the property as you yourself the owner would- for guests you shouldn't be expected to change your house (personal autonomy) no quid pro quo financial exchange it would make parties less fun human intercourse and intangible benefits should not be deterred by too much liability

Model Codes for Comparative Fault awards (Uniform Apportionment of Tort Responsibility & Uniform Comparative Fault Act)

Uniform Apportionment of Tort Responsibility act - uses a modified comparative approach out of recognition that 30 of 36 jurisdictions have adopted the modified comparative approach Uniform Comparative Fault Act - uses a pure comparative fault approach

Social Host v. Commercial Vendors Liability

Unlike commercial vendors of alcohol, social hosts are not liable for car collision injuries to third parties resulting from a minor drunk driver who drank at the social host's party Example: Reynolds v. Hicks: Social Hosts were not liable for damages to third party victims of minor drunk driver who left the social host's wedding Hypo: If a minor drinker injures self in car, commercial and social hosts (Hansen) are responsible. Parents are not Hypo: If an adult drinker injures self in car, dram shop, and social host are not responsible Hypo: If an adult drinker injures a third party in car accident, dram shop is responsible but social host is not Hypo: If a minor drinker injures a third party in a car accident, dram shop is responsible but social host is not. Parents are not Delta airlines v. Townsend - even though crew supplied defendant alcohol, they are not responsible for injuries because they could not foresee he would drive

Negligent plaintiff versus Intentional, Wanton or Criminal Acts under Comparative

Usually juries cannot award a ton of fault to negligent actors instead of the intentional action. Intentional actors tend to be responsible de facto but sometimes negligent actors make the criminal activity inevitable and therefore should be held more responsible. Virtually all courts reject the notion that intentional torts of defendant can be compared to the negligence of a plaintiff unless in cases where it seems appropriate. Contributory negligence is not an affirmative defense in intentional torts cases While most courts using contributory negligence do not weigh negligent behavior of the plaintiff against the reckless behavior of the defendant, virtually all courts with a pure version of comparative negligence compare the two. i.e. 55% speeding and drunk driving D vs 45% careless left turn P

Implied Assumption of Risk

Volenti non fit injuria (If willing no injury) - If the plaintiff can reasonably foresee that the action resulting in their injury is likely to occur if they participate and they participate willingly, the defendant was not negligent. Example: Murphy v. Steeplechase Amusement Company - a plaintiff who fell and injured themselves on an amusement ride that they willfully consented to ride on and had a tendency to cause falling, knew or should have known that a fall was likely to occur if they rode on the ride and therefore the defendant was not responsible for the injuries due to the risk assumed. Exception - if the activity is too inherently dangerous, sometimes there can be strict liability for the defendant Exception - if the activity has an variation that is not normally the case that was not consented to, assumption of the risk will not apply. I.e. fistfight during football game Exception - fraud - if a defendant falsely advertises the safety of the ride knowing it is much more dangerous than advertised, he is liable despite assumption of the risk because the plaintiff did not consent to that risk. I.e. ornery donkey at donkey rides at grand canyon Exception- defendant's intentional and reckless wrongdoing i.e. drunk skydiving instructor

Battery: Eggshell plaintiff

What if he is allergic to feathers? Yes, eggshell plaintiff rule applies. It is the intent to touch, not intent to harm.

Battery: Intimate Connection to Object-

What if someone pulls a tray out of your hand in front of big group of people to embarrass you? Yes, touching something intimately connected with someone counts as an offensive touching.

False Imprisonment: Reasonable Escape

What if the only escape is through a dark manhole and 100 foot tunnel? FI b/c a person does not have to escape by endangering themselves. Must be a reasonable means to escape for this defense to work.

Consent: Objective Manifestation Rule

What the persons appears to be doing is all that matters to give consent Example: O'Brien v. Cunard - a doctor is not liable for battery because the person he gave a vaccination to appeared as though she consented to the vaccination as an immigrant waiting in line

Ordinary care rule

When a Defendant unintentionally injures another while undertaking a lawful act, the Plaintiff must prove that the Defendant acted without due care as adapted to the exigencies of the circumstances.

Limitations to Contributory Negligence (lessens harshness to the all or nothing rule): Last Clear Chance Doctrine (Exception to Contributory Negligence)

When a plaintiff negligently endangers themselves by putting themselves in harm's way, contributory negligence is not a defense when a defendant knew of a way or should have known of a way to use an opportunity to avoid the consequences of harm against the plaintiff. Example: If a plaintiff has entered the middle of the road but they should not have yet the defendant has plenty of time to swerve to move out of the way yet still hits the plaintiff, the plaintiff should not be barred from recovery because the defendant had a last clear chance of avoidance. Reasoning: deters accidents/ promotes health and safety Chronological requirement - defendant's form of negligence must come after and be in spite of the plaintiff's negligence. I.e. previously broken breaks preventing avoidance of collision would not bar defendant's contributorily negligence defense.

Alternative Liability

When multiple parties have acted negligently towards a plaintiff but only one of those parties could have possibly caused the harm to the plaintiff, all are held responsible. Policy position: To hold otherwise would be to exonerate both from liability although each was negligent and the injury resulted from such negligence. Damages: Joint and several liability Example: Summers v. Tice When two gunsman in the woods shot a third gunsman with the same kind of shotgun and the same kind of shells out of their negligence, both hunters were held responsible for causing the damage even though only one could have produced the damage. Counterexample: Garcia v. Joseph Vince When a fencing director mixed two sets of fencing sticks into one, no one could identify which manufacturer produced a dangerous fencing stick and therefore cannot hold either one liable because one of them was not negligent.

Scope of the Risk rule - Restatement §442B of Torts

Where the negligent conduct of the actor creates or increases the risk of a particular harm and is a substantial factor in causing that harm, the fact that the harm is brought about through the intervention of another force does not relieve the actor of liability, except where the harm is intentionally caused by a third person and is not within the scope of the risk created by the actor's conduct. Ex. DOE v. MANHEIMER Although the defendant was negligent in the fact that the seclusion of his shuddery created a spot useful for criminal activity from a duty, breach, and causation standpoint, the defendant cannot ultimately held liable for this creation of risk because the rape was intentionally caused by a third person criminal, and the scope of the defendant's risk is only to the damage resulting from physical contact with objects on his property.

Powder Ridge Restaurant Corp. Test

Whether an exculpatory clause violates the goals of the public interest should be measured by considering the totality of the circumstances in the context of societal expectations. Example: Hanks v. Powder Ridge Restaurant Corp A customer, who signed an exculpatory contract to go snowtubing and was injured going snow tubing, can still recover for damages despite the adhesion contract due to the fact it goes against public policy in the sense that it contradicts societal expectations in the face of the totality of the circumstances. The dissent disagreed on the basis of the Tunkl test.

Factors For Setting Fault Percentages

Whether the conduct was merely on accident or whether the person knew they were assuming a risk The level of danger created as in how many people would be injured along with the severity of injury The significance of what the actor was trying to get with his conduct The actor's superior or inferior capabilities The particular circumstances, such as the existence of an emergency requiring a hasty decision

Reasoning for not awarding damages in the case that asbestos exposure caused fear

Zone of danger clause "physical impact/ immediate risk of physical harm" means a threatened physical contact that caused or may have caused immediate traumatic harm. Asbestos exposure does not classify under this category Gotshall's language from the perspective of a secondary source by Pearson - "recovery for fright" should be allowed only because "a near miss may be as frightening as a direct hit". exposure to asbestos over a long period of time does not constitute a reason for this he may have been able to recover had he developed cancer because this would qualify as a physical injury but he did not. (Courts have done this before) General policy reasons prevention of the special difficulty for judges and juries in separating valid, important claims from those that are invalid or trivial prevention of a threat of "unlimited and unpredictable liability" prevention of the potential for a flood of comparatively unimportant or trivial claims There was virtually no evidence of emotional distress from Buckley - He continued to work, kept smoking cigarettes, did not get screened by a social worker or psychologist extensive contacts with carcinogens are very common. it is hard to evaluate whether an increase in the real risk of dying justifies recovery for emotional damages because it is hard to tell whether there was a substantial increase and whether there was an emotional reaction, the first being scientifically disputable and the latter being a largely intangible element. Would it be justifiable for the court to allow for the recovery of these damages when they may impose an undue risk of increasing prices to all customers? Would the reward of these damages to everyone who had slight exposure and had an emotional reaction to the increased possibility of cancer flood the liability purses of companies so that people who actually develop and suffer from the disease would be limited to their access of damages? exposure and enhanced mortality risk do not equal a physical symptom demonstrating his emotional distress. because the common law categorizations set a precedent that provides stability. common law understanding does not permit an exception to it. the court could overturn but they don't believe that this case is justified to do so. Concurring Dissent: They disagree with the court that the exposure didn't constitute a physical impact but agree with the court that Buckley did not demonstrate any evidence of emotional distress.

Reasons for Holding Common Carriers to An Extraordinary Care Standard

a business should pay for the benefit it receives from the public if common carriers are engaging in non-reciprocal risks they should have a higher responsibility the higher danger mandates higher cost for liability there is a higher level of responsibility between a common carrier and a passenger than a normal business because a common carrier holds the safety of passengers exclusively in their hands

Exception to not your property not your problem: Adjacent property liability (Collins v. Marriott International)

a hotel has a duty to its guests to warn them of risks related to properties adjacent to their property

Defense for Property liability of an Open Obvious Danger

a reasonable person should have been able to avoid the risk because the risk was an open and obvious danger

Child Trespasser (Attractive Nuisance) Liability Test

a. place where condition exists in which kids will likely to want to come b. there is likelihood of unreasonable risk of death c. the children because of their youth do not know their risk d. ease of fix relative to risk to children e. failure to exercise reasonable care Policy Children are not mature enough to be able to logical distinguish between private and public property Safety of children is more important than property Exception: A duty does not exist for attractive nuisances that is naturally occurring, unlike artificial constructs

False Imprisonment: Implied consent

being willing to constrain yourself negates false imprisonment. I.e. getting in a car on a highway, roller coaster, medical MRI scan

Arguments that Ubiquitous Service Providers Should Be Liable Anyways

but the injuries are nonetheless foreseeable to a segmented population companies could spread costs by charging more or return less money to shareholders to account for the risk Due to the company's contained liability, the state will ultimately subsidize the costs of injury through medicaid/medicare/welfare costs its perverse in that the more the tortfeasor does the less liability they incur a rational boundary can be fixed b/w some of the injured but not all injured At least make the company prove that injury damages would be so catastrophic that it would put them out of business

Cause in fact vs. proximate causes

causes in fact are logical identifications. This was a factual cause of that. This -> That. But there are multiple factual causes usually. Which was the first and foremost cause? (proximate cause). Proximate causes are determined through policy judgments as to who should be legally held responsible for the harm If harm to the plaintiff is unforeseeable, there is no proximate cause If harm to the plaintiff is foreseeable, ther is proximate cause Example: Driver may be negligent in failing to sound horn breaking a safety statute but victim was deaf so there is no causation because breach did not cause harm

Joint liability

done together indivisibly

Medical malpractice elements

duty of professional care negligence of the standard of care for a reasonably prudent medical professional (what doctors would say doctors would do) Causation Harm

False Imprisonment: Police Officer Nuance

if a policer officer does not have a proper arrest warrant or lacks probable cause when they make an arrest, they will be guilty of false imprisonment

Standard of Care Test

if one takes precautions to prevent reasonably foreseeable dangers from occurring due to their actions- this means excluding extreme circumstances- one has held up a standard of reasonable care and should not be found responsible for an accident. Example: Adams v. Bullock - a trolley car company should not be held responsible for a boy injured by electrocution after he extended a metal whip below a trolley rail to hit the electrical components, because that was not a foreseeable action that would result in injury; it was an extreme circumstance

Questions of Law vs Questions of Fact

if reasonable minds can differ on questions of fact, then the court through a jury or judge must settle the questions of facts; however, if they do not differ, then standards of law can be applied to the case to resolve it. Trial court has priority in determining facts whereas the appellant courts have priority in applying standards of law. The judge's use of the standards of the rule of law reflects the will of the people since generally the application is based on how juries have ruled in the past. The jury represents the will and feelings of the people at the time so it should serve as a solid source for judgement of whether negligence exists in a case. Example of Judge's sufficiency: in Baltimore and Ohio Railroad Co. v. Goodman - the facts of a case in which a man was killed by an oncoming train after he drove on the tracks were so clear that the standard of law could be applied by a judge without a jury to find that the railroad company was not liable since the nature of trains forbid them from avoiding collisions with last minute incoming objects and the oncoming train and appearance of tracks should be enough warning. Examples of Jury's necessity: in Pokora v. Wabash Railway Company - the facts of the case were such that it was not conclusive that the injured party could have taken reasonable precautions to avoid the danger of an oncoming train so the appellant court rejected the ubiquitous application of the Goldman Rule in favor of allowing a jury to review who should be held responsible in Andrews v. United Airlines, Inc.- the facts of the case were such that there was enough nuance to justify the use of a jury to determine whether negligence in fact was present in a case where a victim was injured by falling luggage from an overhead cubby on a plane and sued the airline service.

Battey: Substantial Certainty as a Subjective Standard

if the child were playing football and caused the chair to fall over, that child may not appreciate the substantial certainty that touch would result from the play A delusional person who still intends to touch in their delusion is responsible for their battery but a delusional person who does not intend to touch in their delusion is not responsible

Battery: Implied consent touches

in some contexts, someone may mean to touch you, some harm may result and you have not expressly given your consent but no battery because the context implied consent. (elevators, backyard sports, buses, etc.)

Rules on expert witnesses in medical malpractice: Factors that may matter for medical malpractice expert witnesses to be valid

locality - if the area is sufficiently urban and modernized, it does not matter whether the doctor is from because medicine is standardized these days. May run into problems in smaller rural areas where the bar is lowered for medical professionalism due to a lack of resources/education etc. specific background - as long as a medical professional has a knowledge in field in question, the background is not critical retirement- as long as there has been recertification and continued education, the medical professional can still testify The general rule is that if it can be proven that the medical professional has an up-to-date expertise in a specific field, they can testify

Proof of Negligence: Rule of Res Ipsa Loquitur

meaning: the thing speaks for itself modern term: negligence per say Elements: 1) injury doesn't normally happen in absence of negligence 2) event is under exclusive control of defendant 3) the plaintiff in no way contributed to the injury Example: Ybarra v. Spangard - since a patient who suffered a back/shoulder injury following surgery was in the exclusive control of the hospital, was unconscious therefore incapable of contributory negligence, and the injury would not have happened had the surgery gone well, the patient can recover based on Res Ipsa Loquitur theory of negligence (negligence per say) despite the fact there were many instrumentalities and actors involved with the operation. Example: McDougald vs. Perry - a driver whose tire comes loose and injures a victim because the driver did not secure the tire properly should be held liable because in ordinary circumstances a tire wouldn't have flown off unless defendant hadn't secured it properly, the tire's security was in the exclusive control of the defendant, and the plaintiff did not do anything to cause the tire to injure them besides coincidentally being in the trajectory of the loose tire. Hypothetical: If a baseball player during a game hit a ball that injured someone outside the stadium, would they be able to sue under a Ybarra theory? No because the culprit could probably be identified, Ybarra is only meant to apply to medical malpractice cases, and it is low probability/extraordinary circumstance

Intentional Infliction of Emotional Distress: Implied Consent

one who consents to being harassed does not have a claim. I.e. rude restaurant, a participant on fear factor

Reasons Against Holding Common Carrier to an Extraordinary Care Standard

risks aren't non-reciprocal anymore due to modern safety innovations we should subsidize industrialization by lowering the standard of care because we think the benefits outweigh the costs the level of common carrier's responsibility depends on the circumstances of the case

Rules based approach vs. Standards approach

rules based approach has consistency and standardization that helps administrative efficiency but reduces suppleness standards approach undermines consistency standardization but increases suppleness, and accommodates for changing contexts in history

Elements of Negligence Per Sey Under Safety Standard (Res Ispa Loquitor)

safety statute - a statute designed to protect life and limb type of harm sought to be avoided- has to be what the legislature intended to prevent class of persons sought to be protected Example: Martin v. Herzog - a driver killed in accident due to another driver veering off into his lane should not be able to win for wrongful death if the killed driver had their lights turned off because the lights on is mandated by a safety statute which gives the other driver a defense of contributory negligence. A violation of the statute is a tort in civil cases.

Policy Reasons For Limitation of Affirmative Obligation to Act

state only wants to hold those responsible to others who they owe duties to. superior knowledge is insufficient in absence of duty to protection because, if not, hardly any limitation on liability would exist for all those who knew of a risk. we care about autonomy, freedom of action in people's lives (may not make sense from utilitarianism perspective but does from a libertarian perspective

Defense for Property liability from Recreational Use of Land Laws

states create in order to incentivize people to allow others to enjoy their land instead of keeping fenced up without fear that they might get sued

Reasoning for the modern Reasonable Person Standard for Tort liability

status should not determine duty. people's worth remains regardless of their purpose on a piece of property. the distinction isn't compatible with modern social mores and humanitarian ideals no longer applicable in urban industrial society. made sense in feudalism with close ties to land and vast estates but no longer eliminates complex and unpredictable state of nature of common law rules foreseeability of injury should be controlling factor (criteria of status distinctions remain relevant to distinguish foreseeable vs. unforeseeable) almost all other tort actions use "the standard of reasonable care". why shouldn't property injury liability? Dissent: overextension of liability. uninvited and unwanted people could liabilities did not want judicial overreach getting rid of common law precedent private property should not have socialized liability Common law is predictable pro property rights efficient to keep rule

Criticisms of comparative fault

the joint and several liability in multiple responsible party cases make the defendant worse off when the modified version is used versus the common law approach In cases where he is 50% or greater in responsibility, a plaintiff can sometimes recover more damages when he is more contributorily negligent than when he is less if he can use the common law approach with the last clear chance rule to gain full damages instead of none at all under the modified rule. Sometimes contributory negligence with its ameliorative doctrines makes the the plaintiff better off than a modified comparatively negligent rule. Sutton v Piasecki Trucking - plaintiff truck driver ran a stop sign and was hit by another truck. Plaintiff was awarded 1% of the 100% amount of damages. Is this justified?

Assumption of the Risk Rule

the plaintiff must have knowledge of the facts of a dangerous condition; the plaintiff must know the condition is dangerous the plaintiff must appreciate the nature and extent of the danger the plaintiff must voluntarily expose himself to the danger

Reasoning for Emotional Reaction of Bystander Liability

the profound sadness, despair, and general emotional turmoil/instability resulting from the observation of a loved one's death deserves compensation. the knowledge of loved one's security is key to a tranquil state of mind the court should not limit recovery based on the arbitrary requirement of physical harm when extreme circumstances permit however it should not extend liability so far and wide that anyone who has an emotional reaction due to a death out of negligence should have a claim. only family members and those within close proximity should be able to recover the graveness of this specific occurrence does not require conjecture and speculation to reach a conclusion on the justness of the action only serious injuries or death warrant the foreseeability of the emotional severity experienced by family members watching an incident. Ordinary injuries shouldn't upset ordinary person to the point of emotional instability.

Negligence

the standard by which only someone who should have been able to reasonably foresee a substantial risk should be held responsible for it

Strict Liability

the standard by which the one who caused an incident should be held responsible for it

Considerations for Medical Malpractice

to even file a suit for MM you need a medical witness that will give an affidavit to confirm that there is a possibility of medical neglect for a scientific opinion to be admissible in court, at least a considerable, respectable minority must exist if a procedure wasn't industry custom maybe the doctor shouldn't be held responsible. (what is customary is almost always the standard of care) if the doctor's hospital couldn't afford the procedure because it is too poor or too remote maybe the doctor shouldn't be held responsible BPL can overrule lack of industry standard like in cases in which the cost of prevention is really low and the loss of injury really high

History of Common Carrier liability

traditionally common carriers were held to an extraordinary care standard invoking strict liability as its rule but after Bethel v. NYC there was flexibility between that standard and ordinary care because the scope of common carrier cases varied so much as to the degree of burden they should hold dependent upon the cost and probability of injury the variety of responsibility was caused by modern improvements in safety features that made it so common carriers' services were not inherently as dangerous

Grounds to Recover for Emotional Damages

where distress accompanies a physical injury (includes indirect physical injuries, i.e. forced cliff jumping; and physical, not mental, eggshell plaintiffs) where a close relative witnesses the physical injury of a close relative; if they pass the zone of danger test - "those plaintiffs who sustain a physical impact as a result of a defendant's negligent conduct, or who are placed in immediate risk of physical harm by that conduct" Intentional or willful emotional distress Example: Metro North Commuter Railroad Company v. Buckley - a man who had exposure to asbestos in his workplace of a disease was not allowed to recover damages for emotional damages resulting from an increased probability of cancer because he had not passed the zone of danger test, did not witness the physical injury of a close relative nor was physically touched. Exception cases Norfolk v. Western Railway vs. Dyers - the court allowed recovery upon emotional damages out of fear of developing cancer when it was shown that the workers developed a lesser disease asbestosis instead of cancer and had a "genuine and serious" fear of development. Potter v. Firestone Tire - if one has been exposed to a toxic substance due to negligence of employer, one experiences a fear based on knowledge that a risk has become more likely than not that one will develop cancer, and the amount of toxic substance will likely cause cancer, one can recover simply for emotional distress from the increase in probability in one's development of cancer.

False Imprisonment: Shopper's privilege (NY law)

while in most states, a person including a shopkeeper risks the conviction of false imprisonment when they detain somebody they believe stole something from them; in New York, shopkeepers have an absolute defense to FI charges if they can prove that they detained somebody on reasonable grounds of suspicion through reasonable means and for a reasonable amount of time.

Battery: Transferred Intent

you still have intent to touch if your intended touch does not land on the person you meant to touch

Several liability

you're only responsible for your percentage of harm