Torts Garlock

Car skids onto property from icy road

no liability because no intent

Trespass Intent

1. Intent to do the thing that makes you end up in that location- Intent to enter the property a. Transferred intent- if you intended to go onto someone else's property and end up on the plaintiffs intent will transfer b. Substantial certainty that a trespass will occur is sufficient for intent as well c. Reasonable mistake is not a defense

Trespass to Chattels Intent

1. Intentionally intermeddles with the Ps Chattel in some way a. Good faith is no defense, intent can be transferred b. Intent to phyiscally interfere with the others use or enjoyment of a chattel

Intentional Infliction of Emotional Distress Intent

1. Intentionally or Recklessly cause emotional distress to victim a. Transferred intent- extremely limited b. Reckless- acting with deliberate disregard to high risk of injury i. Why add reckless 1) Capture risk that would be hard to prove intent for 2) If purely mental- hard to determine what D intended

Trespass to Chattels Conduct

1. Mere interference, unpermitted used for a substantial period of time, outright disposition of the property, destruction of property a. Unpermitted use for a substantial period b. Dispossession c. Interference with use

1. Duties of Owners & Occupiers(Someone who has the right to use the land)

Invitee Licensee Trespasser

i. Negligence & Criminal Acts: 1) RST 3d § 34 Intervening Act and Superseding causes

a) An actor's liability is limited to those harms that result from the risks that made the actor's conduct tortious

1) Foreseeable Class:

a) Another exception to the foreseeability rule: the fact that the injury to a particular plaintiff was not especially foreseeable is irrelevant, as long as P is a member of a class to which there was general foreseeability of harm. b) Petition of Kinsman Transit Co - D negligently moors a ship; the ship breaks away. It smashes a drawbridge, causing it to create a dam which results in a flood. The Plaintiffs are various property owners whose property was damaged by the flood. The court held that these owners can recover against D, even though it would be hard to foresee which particular owners might be flooded. All of the Ps were members of the general class of riverbank property owners to which there was a risk of harm from flooding.

Rule of Assault

1. Assault occurs when the defendant's conduct of attempting to or offering to strike intentionally causes the victim's reasonable apprehension of immediate harm/offensive contact. 2. Protects mental/emotional well being- prevents mental/emotional harm

Assault Conduct Element

1. Attempt or offer to strike a. Attempt to strike- attempt battery and miss b. Offer to strike- action indicating a potential battery i. Requires some action- Raise fists, point gun, etc. ii. Mere words not enough

Who carries burden of proof in negligence?

1. Burden of proof is on the Plaintiff to prove all elements. by preponderance of evidence- more likely than

Causation In Fact

(aka actual cause) - a causal connection between Ds breach in care and the harm that occurred

i. Alternative Liability (Indeterminate Causes)

1) Alternative causation, one or the other was the cause of the injury 2) Summers v. Tice: P was hunting with the Ds, a bird flew by P and both Ds shot at it and P ended up getting injured. Once P proves both actors are negligent, burden of proof shift to the Ds for them to prove that they did not cause the damage. a) Rule: Where a group of persons are on a hunting party, or otherwise engaged in the use of firearms, and two of them are negligent in firing in the direction of a third person who is injured thereby, both of those so firing are liable for the injury suffered by the third person, although the negligence of only one of them could have cause the injury. To hold otherwise would be to exonerate both from liability, although each was negligent, and the injury resulted from such negligence i) The burden of proof shifts to the Ds on the issue of causation, where there are multiple defendants and it is not possible for the P to say which one of them caused the harm. 1)) Wasn't shown that both caused the harm- one of them had to cause the harm- they would be in the best position to know who ii) P has to join all the possible causal actors, P has to prove that each and everyone of them is negligent. iii) Ds here would have to prove they are the cause or both will have to pay iv) If not all of the negligent defendants are not present, they cannot use Summers. P has to prove that all the causal agents are in the case. The more Ds present the less the possibility that anyone of them caused the harm b) Limits: The action has to be simultaneous, increases probability that one of the actors caused the damage

Special or Technical Knowledge

1) Beginners- no lower standard of care to beginner a) Create incentive for beginner to improve skill 2) Superior knowledge rule- Requires actor to act commensurate with knowledge 3) Profession/Trade- Act as a reasonable member of the profession/ trade a) Typically applied to things like doctors

Doughty v Turner Manufacturing Co., Ltd.:

1) D knocked a cement cover into a vat a of molten chemicals, did not splash anyone then. Eventually it caused an explosion which ended up injuring P. Court said that the particular harm in which P received was not the risk that D had been neligent of. The only reason P was injured was because of the unforeseeable explosion. D did not have a duty to protect P from this, as they could not have foreseen it. a) Rule: If there is no duty owed to the plaintiff in regard to the initial action that led consequentially to the injury, then the defendants are not liable for damages.

i. Alcorn v. Mitchell- Temple of justice case

1) Facts- Appellant in court deliberately spit on appellee 2) Issue- Were damages excessive for this kind of harm? Was spitting offensive battery? 3) Result- No. Yes. Offensive battery occurred ii. If not conscious-can still recover if learn of battery latter- dignity has still been invaded

i. Loss of Chance of Survival

1) Herskovits v. Group Health Cooperative: P accused D of negligently failing to diagnose his cancer, which lowered decedents chance of survival over 5 years by 14%. Reversed for the P. Court said that the reduction of a chance of survival is the cause of death bc that reduction harms you by the loss of the chance of survival. a) Rule: A reduction in P's chance of survival as demonstrated by expert medical testimony is sufficient evidence of a causal relationship between D's negligence and P's injury for the case to go to trial. i) P could not prove but for because he had less than a 50% chance of survival to begin with b) Concurring judge's "all or nothing approach" - a P who shows that but for the D's negligence, the decedent would have had over a 50% chance of survival can maintain an action for the death and D will be liable for all damages arising from the death; plaintiff who shows that but for the D's negligence, the decedent had less than a 49% chance of survival, the P recovers nothing. c) RST 323- " One who undertakes ... to render service to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increase the risk of such harm. i) This is not about cause. IT creates a duty to render care 2) Evidence of LCS: expert testimony used 3) Damages in LCS cases: measured by damages caused by premature death. Like loss of earnings and additional medical expenses 4) Increased risk, not yet followed by actual damage 5) Compensible event- options a) 100% of damages vs. 14% of damages(take reduction is survival as injury) vs. 100% for over 51% damages i) The 14% is the reduction in chance of survival- argument is to put you back in the same position

Wagner v. State of Utah

1) State is immune from battery of a mentally disabled person in their care- Cases is dismissed because it is a single intent state- P argues for dual intent to disprove battery and try to pursue negligence 2) Result- No dual intent- case dismissed. 3) Takeaway- For children, mentally disabled, etc.- single vs. dual intent can make a big difference

i. Proximate Cause & Intervening Causes

1) Intervening Causes: a new cause that comes into operation after defendant's negligent conduct has begun to take effect and before plaintiff's harm occurs and that interacts with defendant's conduct to bring about plaintiff's injury, describes when the new cause arises. 2) Superseding Cause: an intervening cause that the court concludes "breaks the chain of causation," i.e., defeats proximate cause. Expresses a legal conclusion that the intervening cause breaks the causal chain, i.e., defeats proximate cause. 3) All superseding causes are by definition intervening causes, but not all intervening causes will act as superseding causes. 4) A new independent cause, coming into existence after the Ds negligence but before Ps injury 5) Pre-Existing Conditions: if a condition existed before the Ds negligent act, it is a pre-existing one and will not break the chain of events. E.g. the gas that was in the boat in Polemis existed before the Ds knocked over the plank and therefore was not an intervening cause

More Probably than Not

1) Kirincich v. Standard Dredging Co.: Almost the same situation as Grimstad but in this case the life saving had already begun and it was more probable than not that they could have saved his life if they had sufficient life saving equipment. a) Here, rigorous evidence was not required- if there was a greater chance to save that is enough to meet burden of proof

Children/Minors

1) Minor standard of care- a) Standard care of average child of age, experience, stage of mental development(wisdom/intelligence) i) Kind of a hybrid subjective/objective standard since experience and intelligence is going to vary from person to person b) Lower standard of care i) Just because there is a lower standard of care does not mean that kids cannot be negligent- creates jury issue c) Why? i) Not able to make same reasonable judgment ii) Kids need room to grow- give them more latitude 2) Rule of 7's a) Under 7- No liability b) 7-14- Presumed Incapable- can be rebutted by evidence showing child is capable of negligence c) 15-21Presumed Capable- can be rebutted by evidence showing person is incapable of negligence 3) Adult Activity Rule a) Daniels v. Evans- i) Facts- P 19 yr old on motorcycle collided with D's car and died. Verdict for P. D appealed. ii) Issue- Was P contributorily negligent? iii) Ruling- Minor Operating vehicle, whether car or motorcycle, must be judged by the same standard as an 1)) Why?- Statutory, danger involved, adult standard should apply to all drivers, minors are just as accident prone, potential D cannot tell if driver is adult or minor, minors are more dangerous drivers 2)) Higher standards can be good for development b) Does Adult activity rule apply to all adult activities i) No- child standard of care strictly applied to guns

Custom in Medical malpractice: Custom and Causation

1) Not a reasonable prudent physician 2) Custom- "Basic norms of knowledge"- skill, knowledge, and care normally possess and exercised by those in the profession- special medical standard of care a) Basically a custom- what doctors in good standing usually do b) The custom in this case defines the standard of care as a matter of law i) Why- Technical issues- info is too technical for the layperson. Also Docs set their own standard for malpractice- a jury would most likely just usually side with the injured otherwise c) Has to be set by expert testimony i) Exception- common knowledge rule- Expert testimony may not be needed in med. Malpractice if the case is within the understanding of lay members of the public 3) First element: Determining the standard of care a) Lama v. Borras: D scheduled P for surgery, neglecting to offer any conservative treatment for Ps back pain, after surgery Ps pain returned, another operation, no anti-biotics were given and then P developed discitis(infection. Standard of care given by expert testimony. i) Rule - Setting the standard in medical cases: To establish a prima facie case of medical malpractice, P must demonstrate: 1. Standard of care-the basic norms of knowledge and medical care applicable to general practitioners or specialists, 2. Show a breach- proof that and the medical personnel failed to follow these basic norms in the treatment of the patient and 3. a causal relation between the act or omission of the physician and the injury suffered by the patient 1)) Cost-benefit analysis in medical malpractice: CBA is not relied on in medical malpractice cases bc judges & juries do not have the expertise needed to judge in the medical field 2)) Two schools of thought conflict: The two schools problem occurs when it is determined that the prescribed treatment or procedure has been approved by one group of medical experts even though an alternate school of thought recommends another approach. IF there are two acceptable customs, the jury does not decide which is better — this decision is left to the medical community and it considered to be an issue of law. 3)) Locality rule: "jack-of-all-trades general practitioners are protected in performing difficult surgeries in a small country village". Those in same towns would not have the same in terms of education/practice as those in larger cities. Not really relevant anymore bc of technology · Cause issue present here- if Doc prescribed conservative treatment then maybe surgery would not have even been required in the first place ii) Another Rule: rejection of custom, Professionals whose actions conform to the standards of their given specialty may, nevertheless, commit malpractice if such conduct is not reasonably prudent. b) Causation: the issue of causation in medical malpractice cases is whether the injury sustained by the plaintiff was caused by the physician's conduct: causation must be proven in order to find the physician negligent for medical malpractice. 4) Second element: Causal relationship between injury and physician's act: a) Causation is an issue for the jury because the issue of causation involves inherent uncertainties, unlike the determination of custom in the standard of care.

Palsgraf v. Long Island R.R.:

1) P was standing on a train station platform, a man carrying an unmarked box of fireworks was attempting to get on a train that was already leaving, Ds helped the man get on but ended up knocking his package on to the tracks which exploded and the force led to scales falling over and injuring P. Cardozo said the only negligence here is that to the mans property, that there was no duty to P bc she was not in range of apprehension, there is not breach of the duty unless you are negligent to the foreseeable P. a) Rule (Cardozo): A duty that is owed must be determined from the risk that can reasonably be foreseen under the circumstances. b) A defendant owes a duty of care only to those who are in the reasonably foreseeable zone of danger. (foreseeability test)- Only to the foreseeable Plaintiff i) Here there was no wrong to P from the D. Why not transferred negligence. There was no wrong to her- there must be a wrong to her specifically for negligence ii) Both duty and proximate cause can be used to limit the scope of liability. Duty- take matter away from the jury. Prox. Cause- used to limit the specific facts of the case. c) Dissent (Andrews): This issue should be handled according to proximate cause. There was a natural and continuous series of events which h led to P's injury. i) Remoteness in time or space can be looked upon by courts as inviting some sort of intervening force between the cause and effect. Here, there is little to no remoteness between in time or space. ii) Everyone owes everyone else in the world the duty of refraining from acts that may unreasonably threaten the safety of others. (direct causation) iii) Lists factors to consider- cause-in-fact, natural and continuous sequence, was there a direct connection(w./ no intervening), is the cause likely, could it be foreseen, is there remoteness in literal time and space

Brower v. New York Central & H.R.R

1) P was traveling in a horse drawn buggy, went over the train tracks and his horse ended up being killed and buggy damages by the train. Ds flagman failed to signal to P that a train was coming. While P was in shock over what just happened, thieves stole the rest of the items from his buggy. D should have anticipated that this was a natural & probable event bc they were in a big city & D had guards on their train to protect against thieves. Therefore, D should have afforded Ps items protection from the thieves. a) Rule: The act of a third person, intervening and contributing a condition necessary to the injurious effect of the original negligence, will not excuse the first wrongdoer, if such act ought to have been foreseen. Court used the fact that the train had guards as an indication that it was foreseeable b) Dissent: Claimed that the acts of the thieves were an independent intervening cause. Arguing strict Direct Causation. Why take this view- holding D liable for a criminal act when he is merely negligent.

Increased Risk of Harm

1) Reynolds v. Texas & Pacific Ry.: The P was injured when she fell down an unlit stairway while exiting Defendant's train at night. a) Rule: The standard adopted here would be that: where the negligence of the D greatly multiplies the chances of accident to the P, and is of a character naturally leading to its occurrence, the mere possibility that it might have happened without the negligence is not sufficient to break the chain of cause and effect. b) Compared to Illinois janitor case- courts can spilt- similar fact pattern. The court found that no proof that the condition of the stairway or lack of handrail caused the injury. 2) Zuvhowicz v. United States: P was given a prescription that stated the dosage wrong, had bad side effects, was diagnosed with PPH and died. The issue was the causal link between the mislabeling and the death of P. Used expert testimony to establish the link. a) Rule: Strong causal link - If (a) a negligent act was deemed wrongful because that act increased the chance that a particular type of accident would occur, and (b) a mishap of that very sort did happen, this was enough to support a finding by the trier of fact that the negligent behavior caused the harm. b) Calabresi Test- Jury may at least infer cause in fact if for the very reason that D's conduct creates a core risk and that core risk then occurs i) Issue- how much does act have to increase the risk of harm. c) The negligence here was prescribing the overdose- not just prescribing the medicine. 3) Other cases a) Ford v. Trident Fisheries- p 344- "guy sank like a stone" but for the D's failure to suspend the rescue boats from davits(where they could have been easily lowered), the P probably still would have drown- no cause in fact. b) Haft v. Lone Palm Hotel- p352- Despite statute requiring, D did not provide lack of life guard or warning sign at hotel, led to drowning. Lack of life guard greatly enhanced chances of drownings- Ds were negligent in this respect. Ps have gone as far as they could with their proof. Shift burden of proof to disprove to the defendant to absolve if they can (what defenses)

Elderly Breach

1) Roberts v. Ring a) Facts- Kid runs across street in front of 77 yr old driver. Driver hits kid. D has infirmities common to age. TC finds for D. P appeals. D argues not negligent as a matter of law- reasonable person could not disagree. b) Was D negligent? Was P contributorily negligent? Special standard of care for elderly? c) Ruling- Court feels elderly should be held to ordinary prudent person. The old man was either negligent for not seeing the boy or neglingent for seeing and not stopping in time. Infirmities were weighed against D. If D was not able to fully see or meet regular standard of care he should not have been driving. P is not negligent - minor standard of care. i) Why- need to protect society, deter risky behavior, throw costs on those who create more risk, pedestrians are not in good position to protect themselves against car

i. Exceptions to reasonable care in negligence Saving a human life

1) Saving a human life: a) Eckert v. Long Island R.R: Decedent attempted to save a kid from being run over by D's train. Ds argue that P was negligent for running in front of the train so it is his fault. Ps say that D was moving too fast in a busy location and did not use proper signals to warn. However, court does not find the P decedent negligent bc there was a duty of care owed from him to the child to try to save him bc of societal norms. i) Rule: limit on the "reasonably foreseeable" context in favor of the plaintiff, law inherently values human life so gives some exception to those acting "within the reasonable rescuer" role where they have little time to react in order to attempt a lifesaving action. However, reasonable actions must still come into play; the rescuer does not get a free pass on negligence ii) Other things to consider 1)) Instant reaction to save childs life- Social value or utility to be balanced- B+Bs 2)) P could have been negligent if there was a very small chance of success- could have been found to be negligent- reckless 3)) Court found that an attempt to save property could be worth the risk(depending on value) but that there is always a high value placed on human life 4)) Dissent- P voluntarily chose to move in front of the train- Assumption of Risk? · Why not right- implication is he was legally not bound

Wavering Standard of Care

1) Saving humans life- Eckert 2) Sudden Emergency- RPP in emergency a) In an emergency, a persion is not expected or rquired to use the same judgment and care that is required in calmer and more deliberate moments. If a person acts as the reasonable careful person would act in a similar emergency- no negligence b) Lyons v. Midnight Sun Transportation Services, Inc. i) Facts- P killed when van struck broadside by truck. D was driving and P pulled out in front of him. D braked and steered left. ii) Issue- Should court have given sudden emergency doctrine

i. Extensive Consequences from physical injuries:

1) Thin Skull Rule: D takes P as they find them. If there is a preexisting condition, that causes a greater extent of harm than a D could have foreseen bc the D aggravates a preexisting condition, they are still liable 2) Not really an exception, if you are negligent and foreseeable cause some injury and it causes a greater extent than what you could foresee, you are liable 3) If you can see some extent of harm then you are liable for the full extent of the harm 4) Smith v. Brain Leech & Co.: Risk of harm here was a burn on the lip, pre -existing exposure made them susceptible to cancer 5) A practicality, P would have had to prove in each and every case what a normal extent of harm was and the jury would have had to address the weakness and abnormality. 6) Everyone has some limitation of some kind, this could be foreseeable

i. Market Share Liability

1) Under the market share approach: a) D is liable for the proportion of damage represented by its market share b) D can escape liability only if D can prove that it could not have made the product which caused the P's injury. c) The defendant manufacturers brought to trial must comprise a substantial share of the market d) The product which caused the P's harm must be fungible i) Skipworth v. Lead Industries Ass'n: the P was unable to establish a strong causal connection in an action against D lead paint manufacturers. In this case, apportioning liability based on a manufacturer D's share of the market would not serve to approximate that D's responsibility for injuries caused by its lead paint. A manufacturer whose lead product had a lower bioavailability than average would have caused less damage that its market share would indicate. Pigments used in lead do not pose the same exact risk. All lead paint is not the same ii) Guns - cannot use this bc guns are not fungible (generically similar) products. iii) Asbestos - cannot be used for this bc there are different kinds/exposures 2) Sindell v. Abbott Laboratories: Ps mother took the drug DES while she was pregnant with P. Ds had been warned to stop marketing the drug to preventing miscarriages bc it caused cancer in the fetus later in life. Multiple Ds that were manufacturing companies of the drug sued by P bc she developed the exact illness. Court used market share liability to appropriate the damages. Ds had to prove that they were not manufacturing the drug during the time that Ps mom could have taken it. a) Rule: In certain circumstances where the plaintiff is unable to identity the actual tortfeasor and it is unjust to preclude them from recovery, then the group responsible for the overall harm can be held liable. Damages are appropriated by their share of the market. b) D's negligence included not testing, improper marketing, not safety efficacy testing, c) DES was a fungible product-generic drug- hard to prove who manufactured it. Generally P needs to prove who caused the injury- not possible here- product, time,etc d) P tries to use alternative liability- Court says no- The manufacturers have no better information than P does e) Market Share serves as a proxy for causation- indicates the likelihood that D's medicine actually caused the damage f) This is not applied often. A couple issues i) How do you contruct a market 30 years after ii) You are punishing some people for the wrongdoing of another

Hughes v Lord Advocate:

1) Workers left lamps as warnings of an uncovered manhole. A child came by and started to play with the stuff, ended up dropping a lamp into the hole, which caused an explosion and he was burned. Court said that the type of injury (lamp burns) were reasonably foreseeable. a) Rule: As long as the general type of injury/harm is foreseeable, there will be proximate cause. Manner in which the harm occurs does not matter as long as the type of harm is foreseeable. D does not need to foresee the exact sequence or manner

Several Liability

1) means that each defendant is liable to plaintiff for only a portion of her award. a) Apportionment of damages among defendants may be done on the basis of causation where the harm to plaintiff is capable of division--i.e. where each defendant has caused only a separable part of plaintiff's injuries. b) Today apportionment of damages among defendants may also, or instead, be done on the basis of each defendant's fault, 2) Rst. View on multiple causes: a) Endorses the view that all joint tortfeasors are fully responsible for the undivided consequences of their own actions. b) Damages in joint tortfeasor negligence cases c) Damages for harm are to be apportioned among two or more cause where the are distinct harms or where the is a reasonable basis for determining the contribution of each cause to a single harm. (Restatement (Second) §433A). ii. Multiple Sufficient Causes: 1) It is possible to have 2 necessary causes 2) Kingston v. Chicago & N.W. Ry.: Sparks from Ds train caused a fire in the NE, which joined with a fire form the NW started by an unknown cause, then together they destroyed P's property. Ds negligence in starting the fire was found to be the cause in fact of Ps injury a) Rule: When two separate, independent, and distinct agencies, each of which constituted proximate cause of Ps damage, and either of which, in the absence of the other, would\ have accomplished such result, both will bare appropriated damages. b) Either fire would have done the full damage in absence of the other i) Damage cannot be apportioned for this reason c) Other things to think about- Cook- 1 cause was human the other was natural- P could not recover when the 2nd cause was unknown- There is not the same demand for justice when the fire could have started naturally. i) this case is not about that. This case the court assumes the second fire was started by a human. 3) Rst. 3d §27 If multiple acts occur, each of which under § 26 alone would have been a factual cause of the physical harm at the same time in the absence of the other act(s), each act is regarded as a factual cause of the harm.

i. Joint and Several Liability

1) means that each of two or more defendants who contribute causally to an indivisible injury(cant separate out part of damage) of the plaintiff may be liable for plaintiff's entire damage award. a) Plaintiff may recover her whole award from any one defendant or part from each. b) Plaintiff may not recover her whole damage award more than once; she can't recover her whole award two or more times. c) When the harm is indivisible, each is liable for the Ps damages

Trespass Rule

1. A person is liable for trespass when he/she intended to enter or caused another to enter the property of another(the plaintiff), the conduct a voluntary act and entry onto the property actually occurs whether damage to the property occurs or not.

False Imprisonment Conduct

1. Confinement: could be broad as long as confined from leaving a. Reasonable amount i. Area of confinement- can be legally confined- and therefore very large 1) But the larger the area gets the more freedom of movement ii. Can be confined to a moving item- car/boat b. Can you escape- has to be total confinement i. Bird v Jones 1) Facts- P making way down public street. D blocked his way through due to event 2) Issue- Is there False Imprisonment? 3) Result- No- so long as the plaintiff was free to go no false imprisonment. P could have taken a different route a) Dissent here- as long as I am prevented from doing what I have a right to do why is it important that I can do something else. c. Restraint by threat of physical force i. Coblyn v. Kennedy's Inc- the ascot case 1) Facts- man trying on coat puts ascot in pocket. Buys coat- as leaving store pulls ascot out of pocket and puts on- D stops him, blocks doorway, grabs arm and demands to know where he got the ascot and forced him to return to store to talk to manager. D blocks so P has heart issue 2) Issue- Is this False imprisonment where there was no literal confinement? 3) Result- Yes- P was restrained by threat of physical force. Any demonstration of physical power can serve as general restraint. Immediate physical force or imminent threat of physical force. a) Variants- This is very fact specific/critical i) Yelling(Imprisonment by moral pressure/shame)- no confinement ii) Voluntary- Asked to return to store and does- no confinement iii) Future threat- I'll call the cops- no confinement Door not fully blocked- no confinment

Strict Liability Elements

1. Duty - Duty to prevent harm from abnormally dangerous activities that one engages in 2. Breach - Requires the P to show that the D has not fulfilled his duty 3. Cause in fact - See negligence 4. Proximate Cause - See negligence 5. Damages - See negligence

A. Abnormally Dangerous Activities

1. General Principle (§519) a. (1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm. b. (2) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous. [Proximate Cause - Madsen, mink farm] 2. Multi-factor test for determining whether an activity is abnormally dangerous: (§520) a. (a) existence of a high degree of risk of some harm to the person, land or chattels of others; b. (b) likelihood that the harm that results from it will be great; c. (c) inability to eliminate the risk by the exercise of reasonable care; d. (d) extent to which the activity is not a matter of common usage; [reciprocal risk] e. (The activity has to be carried on "by the great mass of mankind or by many people in the community) f. (e) inappropriateness of the activity to the place where it is carried on; and g. (f) extent to which its value to the community is outweighed by its dangerous attributes. h. Need several of these factors, not all needed but only one will not do. 3. Revised elements of an ADA - (§20) Abnormally Dangerous Activities a. (a) An actor who carries on an abnormally dangerous activity is subject to strict liability for physical harm resulting from the activity. b. (b) An activity is abnormally dangerous if: i. (1) the activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors; and ii. (2) the activity is not one of common usage. 4. Common Usage Element a. Under this factor, if an activity is not a matter of common usage, that will be a factor in favor of strict liability, and vice-versa. b. Rest. 2d defines "common usage" narrowly: The activity has to be carried on "by the great mass of mankind or by many people in the community i. Under this definition, fewer activities would be a matter of "common usage" (not that many activities are carried on by "the great mass of mankind, etc.), so strict liability would be potentially broader (i.e., more activities might not be "matters of common usage"). c. Rest. 3d defines it: an activity can be considered common usage if "nearly everyone routinely does it or expects it to have it done for him." i. This idea would make the transmission of gas to homes a matter of common usage even though only a handful of people engage in this activity, so it would not be subject to strict liability. (Again, the broader the definition of "matter of common usage" the fewer activities are likely to found subject to strict liability under both Restatements.) ii. It might apply to activities "that seem usual and normal," so that activities such as railroading and golf have been held not subject to strict liability. 5. Rationale for Strict Liability a. May save the courts time & money in terms of litigation costs b. Surrogate for negligence? Suspect that there is negligence but it is too difficult to prove c. Loss distribution d. Corrective Justice - rectification of a wrong done another, required compensation when one had imposed an inordinate, abnormal risk of very serious harm on another. [not according to posner] e. Risk distribution: Liability should be imposed on the party in a better position to absorb the cost of injury (often a business) and distribute that cost to others, either via insurance or as a cost of doing business. f. Utilitarian and Economic: Strict liability should be imposed only when it provides safety incentives greater than those provided by a negligence rule g. Fletchers reciprocal risks- i. Balance of imposed risks- fairness/corrective justice 1) Nonreciprocal- high risk imbalance- plane causing ground damage by falling part 2) Reciprocal risk- cars colliding, airplanes colliding 6. Indiana Harbor Belt R.R. v. American Cyanamid Co.: Plaintiff sued Cyanamid in both negligence (for negligent maintenance of the leased tanker car) and strict liability, alleging that transportation of a toxic chemical through a metropolitan area was an abnormally dangerous activity under Rest. 2d §520 for which strict liability would be imposed under §519 to recoup the clean-up cost of acrylonitrile, which spilled out of the railroad car. a. The Court of Appeals, per Posner, J., reversed, holding that strict liability was inapplicable in this case, and remanded for consideration of plaintiff's negligence count. i. Posner argues that it makes sense to apply a strict liability rule rather than a negligence rule only if the former will give actors greater incentives to prevent accidents than the latter. 1) However, if a risk can't be prevented by using reasonable care, then the imposition of strict liability may help reduce accidents by giving actors incentives to "relocate, or reduce the scale of the activity." ii. Posner argues that in the instant case, greater deterrent effect cannot be achieved through strict liability than through negligence. He reaches this conclusion through a selective analysis of some of the six factors of §520, especially (c), "inability to eliminate the risk by the exercise of reasonable care." 1) Posner narrows the risk to the danger of a spill from a faultily maintained tanker car lid. That risk, he says, could have been prevented by the use of reasonable care, so factor (c) is not met iii. Posner argues that the relevant activity here is transporting hazardous chemicals, not manufacturing and shipping them 1) Manufacturers aren't engaging in abnormally dangerous activities simply because their product may be used or mishandled in a dangerous way after it leaves their premises. 2) Court found the manufacturer (D) should not have to bare the cost under strict liability, negligence is the more applicable theory - accidents that are due to a lack of care can be prevented by taking care, and when a lack of care can be shown in court, such accidents are adequately deterred by the threat of liability for negligence 7. Proximate Cause Issues a. Sec. 519(2) says that strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous. b. Madsen v. East Jordan Irrigation Co. - P owned a mink farm, D was blasting near Ps farm, Ds blasting scared the minks so much it caused them to kill a bunch of their babies and P lost profit from that. i. Court said that this was too remote a damage so P could not recover. The court in effect held that the kind of harm that makes blasting abnormally dangerous is physical injury to persons or property from debris or concussion, not mother minks killing their young because of panic from noise. c. Sec. 524(a) Harms that occur to plaintiff only because he or she is engaged in an abnormally sensitive activity, and would otherwise not be affected by defendant's activity, may be regarded as harms not within the scope of the abnormal risk created by defendant d. Intervening Causes i. §522, takes the position that if defendant is engaged in an abnormally dangerous activity he or she will not be relieved of strict liability although the harm is caused by the "unexpectable" (unforeseeable?) intervening cause of (a) the innocent, negligent, or reckless conduct of a third person, (b) action of an animal, or (c) operation of a force of nature. (Policy reasons) - not accepted by all courts 1) leaves open the possibility that an intentionally tortious or criminal act of a third party might defeat liability (Yukon - act of thieves did not defeat liability

Defenses to Intentional Torts Implied License

1. Implied by law- not expressly stated, License- give permission to do something a. Some touching is inescapable part of every life whether we like it or not.

Defenses

1. Not absolute liability, proximate cause is a limitation and D may be able to assert affirmative defenses. 2. Rst. 2d - Assumption of risk is a complete defense (§523), as is that form of contributory negligence that is a version of assumption of risk, i.e., "knowingly and unreasonably" subjecting oneself to the risk of an abnormally dangerous activity (§524(2)). 3. "Mere" contributory negligence is not a defense. (§524(1) a. An example of the latter would be wandering into a blasting area and failing to notice a prominent sign warning of the danger, as opposed to walking through the area after a worker has shouted, "Hey, get out of here! We're blasting with dynamite, you idiot!" 4. Comparative Negligence a. In Bohan v. Rizzo, the issue was whether plaintiff's negligence could reduce his damages if defendant were held strictly liable. New Hampshire had a statute that imposed strict liability on dog owners for damages occasioned by their dogs. In the instant case, the dog rushed at plaintiff, causing him to fall off his bicycle and injure himself. The court held that under the state's comparative fault statute, the negligence of a plaintiff could be a defense to a strict liability action so as to reduce plaintiff's damages. The court noted that the language of the comparative fault statute applied to all tort actions, not merely actions founded in negligence. i. How is the jury to compare the negligence of a plaintiff to the strict liability of a defendant for purposes of apportioning damages? ii. The court met this difficulty by holding that the fact finder should compare "comparative causation" to apportion damages. Apparently the jury must still find the plaintiff guilty of "misconduct," i.e., "voluntarily or unreasonably" encountering "a foreseeable risk of injury of the type he suffered." But if the comparison is between the amount of causation each party contributes, why must the plaintiff be at fault at all? iii. the basic point is that some courts today are holding that a plaintiff's negligence can be a defense to a strict liability action under a comparative negligence regime in order to reduce plaintiff's recovery 5. The Restatement (Third) has endorsed this position in §25, where it says that plaintiff's recovery in a strict liability action may be reduced in accordance with the share of "comparative responsibility" assigned to the plaintiff. Although recognizing that "no literal comparison of the fault of the two parties may be possible," the Restatement goes on to say that the trier of fact should consider "the degree of unreasonableness in the plaintiff's conduct and the nature of the causal connections between the conduct of the plaintiff, the conduct of the defendant, and the plaintiff's resulting harm."

A. Cause-in-Fact

1. Overview a. the requirement that there must be a relation of cause and effect between defendant's negligent conduct and plaintiff's injury. i. The P, as part of the prima facie case, must prove both ii. There may be several negligent D's, facts may be too meager, expert witnesses may disagree about the cause iii. Rst. 3d. §26 Factual Cause: Tortious conduct must be a factual cause of harm for liability to be imposed. Conduct is a factual cause of harm when the harm would not have occurred absent the conduct. Tortious conduct may also be a factual cause of harm under § 27. b. It involves asking whether defendant's conduct brought about plaintiff's injury, i.e., was there an empirical connection between the two. D's initiated sequence of events that led to injury

Defenses to Intentional Torts Privilege

1. Privilege admits the prima facie case has been met- but actor had privilege to act a. Doctrine of Privilege in Mohr- most likely emergency rule- Doc. Is privileged(implied consent) to act without consent if cannot obtain consent from another, if person is in life threatening condition, and operation is required to get consent i. Why?- Idea is that patient would consent if they could and society wants to preserve life

Intentional Infliction of Emotional Distress Result

1. Severe emotional distress a. Severe- so severe that no reasonable person could endure it b. If bodily harm occurs also liable for bodily harm c. Loss of sleep for 2 years is enough d. Medical testimony is often implied or requested to prove IIED 2. Wilkinson v. Downton- Practical joke a. Facts- D plays cruel practical joke about P's husband. P has a very severe reaction to the joke(violent shock and physical reaction) b. Issue- Whether d's act was so calculated to produce some effect of the kind that was produced and was the effect that was produced too remote for D to be liable. c. Result- Yes. D intended to cause some kind of reaction and got it. D's joke was cruel. Difficult to think that the act would not produce the grave results because of how it was made. Effect was not too remote. 3. Silizikoff v. State Rubish Collectors a. Facts- Silizikoff files action in response to D's action b. There was no assault because of future threat c. If someone seriously threatens to inflict bodily harm an you do suffer emoitional distress- you can recover.

Intentional Infliction of Emotional Distress Conduct

1. So extreme and outrageous that no reasonable person would expect you to endure such a thing a. Extreme and outrageous- i. average member of community would exclaim- "outrageous" ii. attorcious/utterly intolerable b. NOT: mere insults i. For instance Alcorn spitting would just be insult c. Special sensibilities: if you know someone is particularly susceptible i. If actor knows person is susceptible and its taking advantage of it- it is easier to find IIED against actor ii. Advanced age probably does not apply iii. Mentally susceptible- pot of gold case iv. Positions of Inequality- 1) Positions of authority- employer vs. employee, prof v students, policemen 2) Doctor case- Rockehill v. Pollard a) D did not treat potentially lifeless child and made person wait outside in rain b) Found to be outrageous- not just malpractice- but callous v. Contreras v. CrownZellerbach 1) Facts- guy has to put up with racism at work. Was known from the top down and never stopped by management. Rumors spread that prevented future work 2) Issue- Was racism extreme and outrageous conduct? Was there IIED 3) Result- Yes- P was a member of a particularly susceptible group. Trier of facts need to decide if exreme and outrageous- should not have been demurred 4) Contrasted- 1st time racial slur is not enough for tort of outrage- florida case were guy recovered for breach of obligation of innkeepers/motels/etc. d. No Defense

Breach

1. Standard of Care a. DEFAULT- Reasonable Prudent Person Std: average person with average abilities, intelligence, perception, memory. i. Vaughn v. Menlove 1) Facts- Fire of haystack on edge of property. P sues D for negligence. There was no intent by D- spontaneous combustion of haystack. Took bad precaution of making chimney. Advised to do something- D "going to chance it". D argues he acted in good faith and to best judgement given his abilities/knowledge (essentially the reasonable stupid man) 2) Issue- Is D liable for damage? 3) Ruling- The court adopted the prudent and ordinary man rule. Objective, external care. 4) The untaken precaution idea- D could have hired expert, put guard around, moved ii. Reasons against RPP 1) Personal care varies greatly from person to person iii. Reasons for RPP 1) Reasonable care is higher standard 2) Promotes education/ proficiency or doing something else iv. Assumptions of RPP 1) Social consensus 2) Legal fiction 3) Juror can put aside personal feelings and think as community 4) Care you are supposed to take is supposed to depend on the facts of the situation 5) O.W. Holmes- Certain average of conduct is necessary to general welfare- public safety v. Often talked about in terms of the Untaken Precaution 1) P should allege something that D could've done to prevent- prove greater care b. SPECIAL RULES (person with special thing has to act as RPP with special thing)

Bystanders (Witnesses to Accidents to third parties)

1. The Dillon Foreseeability/Guideline Approach a. Dillon v. Legg: P (mother) witnessed her son get run over and killed by D, P was standing some feet away while her daughter was closer to her son. Her daughter was found to be within the zone of danger and allowed to bring a claim at the TC but the mother's was dismissed. Appellate court reversed, overruled Mitchell. i. The issue is now: whether the negligent defendant owes the witnessing bystander any duty of reasonable careto prevent ED ii. Holding: a bystander could recover for emotional distress upon witnessing a negligently caused injury to a third person, as long as the defendant could reasonably foresee such harm to the plaintiff. Court felt that both the impact rule and the zone of danger rule were too restrictive, screening out potentially worthy claims. iii. Rule: Whether there was a duty of care, depends on whether a reasonable person in defendant's position could foresee causing emotional distress to the plaintiff. iv. Foreseeability existed depended on three "guidelines": 1) (1) plaintiff's presence "near the scene" of the accident, 2) (2) "sensory and contemporaneous observance" of the accident; 3) (3) close relationship between plaintiff and third-party victim. v. Additional requirements: 1) (1) plaintiff still had to suffer physical injury resulting from the emotional distress (i.e., no recovery for ED alone), and 2) (2) there had to be an actual injury and defendant liability to the third-party victim - if the P heard the screech of brakes and mistakenly thought the third party had been struck and suffered resulting emotional distress, P could not recover, as there had been no injury in fact to the third party vi. Summary: While the defendant did owe an independent duty to the witnessing bystander, that duty did not arise unless the third party was actually injured vii. Some Issues- # of P's- foreseeability sweeps to broadly 1) What if Father told an hour later?- Kelly v. Kokua- no recovery 2) What about modern cellphones and pictures transmitted? Is this contemporaneous or do they have to be physically present? 2. The Thing Requirement Approach - physical injury as result the emotional distress a. Thing v. LaChusa: Where a mother was told by somebody that her son had been hit moments ago, mother rushed out and saw her son's body lying on the street. Court said there would be no recovery, it is foreseeable that masses of people may be ED by the death of someone. i. the court rejected a broad foreseeability approach to duty and turned Dillon's guidelines into requirements (elements)- Turned into bright line rules ii. Allowed recovery for emotional distress alone without plaintiff having to prove resulting physical injury. Standard of proof, very high, for ED: Plaintiff must suffer ED "beyond that which would be anticipated in a disinterested witness." 3. Close Relationships a. Siblings, parents, wife- OK b. Unmarried cohabitants?- Courts Split- Elden- no recovery, Dunphy- Recovery

A. Direct Victims

1. Traditional View - Contemporaneous Physical Injury Rule (Impact rule, first stage) a. No recovery for emotional distress alone, unless there is an impact then the ED can be parasitic over those damages (now the touch can be the slightest one) b. Under this rule, plaintiff could recover for emotional distress as an element of damages (so-called "parasitic damages") if: i. (a) she was struck directly by a negligent defendant (or by an object under defendant's control, such as an automobile), ii. (b) she suffered a physical injury caused by the impact (the "contemporaneous physical injury" requirement), and iii. (c) she also suffered emotional distress arising from the impact or threat of the impact. c. Courts did not allow recovery for emotional distress even when there were physical consequences of fright and P was in danger zone because (1) courts were concerned about flood of fictitious claims and (2) proximate cause issues (thought that fear was a superseding cause) d. Mitchell v. Rochester R.R.: Pregnant women waiting to board D's street car, as shes standing there Ds horse car comes up to her and is so close it causes her to faint, eventually she has a miscarriage. i. Rule: No recovery can be had for injuries sustained by fright occasioned by the negligence of another, where there is no immediate personal injury/physical contact. 2. Impact Rule (Second Stage) - only used by four states a. the impact rule was softened, and courts allowed plaintiff to recover for emotional distress if: i. (a) the negligent defendant caused even the slightest touching of the plaintiff, ii. (b) plaintiff suffered emotional distress as a result of the touching. iii. While some courts apparently allowed plaintiffs to recover for emotional distress alone, others required that plaintiff suffer physical injury (miscarriage, heart attack, other illness) as a result of the emotional distress. Given that there was no requirement that the initial "impact" itself had to cause physical injury, NIED would seem to emerge as a separate tort at this point. b. Case where a mouse hair that touched the roof of Ps mouth bc it was in Ds cooking was a sufficient impact/ 3. Zone of Danger - followed as a limit on liability in 10 states a. Under this rule the plaintiff could recover for emotional distress even if she were not touched at all, if: i. (a) plaintiff was personally in danger of being struck by a negligent defendant, and ii. (b) she suffered emotional distress caused by her fear of being struck, and iii. (c) she also suffered physical injury resulting from the emotional distress. b. Courts rejected the impact test as artificial and unfair, believing it screened out too many worthy claims. These courts believed that the immediacy of the threat of impact and the requirement of resulting physical injury provided a sufficient guarantee that the emotional distress was genuine. c. Allow recovery even if there was no touching, but the P had to be able to be harmed (within the zone of danger) d. Dulieu v. White & Sons: P claimed NEID after nearly being run over by the Ds team of horses while working behind a counter caused her to miscarriage. Nervous shock must come out of fear of harm for oneself not by horror of some other person. i. Need to be personally in danger of being struck ii. Fright to your person could cause physical injury if you have significant medical testimony e. Amaya v. Home Ice: P (mother's) claim for NEID dismissed because she was not in the zone of danger when her child was injured 4. Other Direct Victims a. Various situations in which the negligently inflicted ED "occurs in the course of specified categories of activities, undertakings, or relationships in which negligent conduct is especially likely to cause serious emotional disturbance." Rest. 3d §46(b). b. In these situations there is no requirement that the plaintiff be in fear of being physically struck by the defendant (or that he or she witness harm to a third person, as under bystander recovery, below). c. Older cases included negligent mishandling of corpses by hospitals and funeral homes and negligently sending a telegram erroneously informing the recipient of the death of a loved one. d. More recent cases have applied this category where the plaintiff suffers ED from "consumption of food that is then found to have been contaminated with repulsive foreign objects."

But-For test

1. Used to determine cause in fact. a. Rule: Cause in fact exists if, but for [or absent] defendant's negligent conduct, the injury to plaintiff would not have occurred. i. Ds negligence is not a cause of Ps injury if it would the injury would have occurred even without Ds negligence

Assault Result Element

1. Victim is put in imminent apprehension a. Imminent- within a reasonable amount of time i. Always going to be a judgment for the jury ii. Backpack with explosive hype- backpack in class- likely imminent threat, backpack in locker and person going to get- maybe not b. Apprehension- believing that the act is capable of inflicting contact- i. Believing the act may result in imminent contact unless prevented from so resulting by the other's self-defensive action, by flight, or by intervention of outside force ii. Not the same as fear iii. Does apprehension have to be reasonable? 1) No assault can be made out as long as intent can be proven and put in apprehension- have to protect those with idiosyncratic fears iv. Brower v. Ackerly 1) Facts- D makes telephone harassment campaign against P with threats 2) Issue- Do future threats constitute assault? 3) Result- No. Future threats do not constitute assualt. There needs to be an immediate threat to victim.

Defenses to Intentional Torts Necessity

1. gives right to enter and remain on land to prevent harm from serious imminent threat- be it from natural causes or human causes a. Rule- a person may interfere with the real or personal property of another where the interference is reasonably and apparently necessary to avoid threatened injury from a natural or other force and where the threatened injury is substantially more serious than the invasion that is undertaken to avert it. b. Ploof v. Putnam i. Facts- P suing for trespass to chattel for undoing line that was tying boat to dock during a storm. Boat is D assets defense of property. P insists "had to" to protect family and boat- Privilege of necessity- was never a trespasser to begin with ii. Issue- Did D trespass on P's chattel? iii. Ruling- P did have a cause of action 1) Could P use deadly force if life is threatened?- controversial 2) Force must be reasonable to stay on property c. Vincent v. Lake Erie Trans Co. i. Facts- Deckowner sues boatowner. Strom comes up while unloading. D tries to leave no tug would come to support. Boat smashes up deck. ii. Issue- Was there a trespass to P's land? iii. Rule- 1) Negligence- No- D acted reasonably with prudent seamanship 2) Intentional tort- Yes. D made deliberate choice to remain there and availed themselves of P's property(ropes)- intent to remain. a) Compared to Ploof- P probably wouldn't have been liable 3) Why is D liable in this case- court found a conditional/qualified privilege a) Court thinks it is fair to impose- The damage to the deck was caused to prevent damage to D's boat- "strict liability in disguise" b) There is an obligation to pay for any damages that result of privilege of necessity iv. Dissent- if original ropes held- inaction would still be a choice. Should be based on fault- this is an act of god d. Above is private- the public/government is govered by different rules. Gov. can detroy property if it will stop some kind of catastrophe- it is a complete privilege and no compensation is required e. Public necessity- where the act is for the public good(shooting a rapid dog/destroying a house to prevent the spread of a wildfire) the defense is absolute. f. Private necessity- Where the act is solely to benefit a limited number of people ( actor ties up boat to dock in a storm) the defense is qualified- the actor must pay for the injury he causes. Defense is absolute if the act is to benefit the owner of the land

Defenses to Intentional Torts Consent

1. not a privilege- if consent is given there is no tort a. Mohr v. Williams i. Facts- P consented to surgery on one ear. Doctor found other ear to be in worse condition and operated on that. P sued for battery and won. Surgery skillfully completed ii. Is this a battery when P consented to other surgery(like operation) and P had no intent to harm/offend? (what is scope of express consent) iii. Yes. Violent assault found because there was not express consent to operation on the specific ear. Intent to contact is enough.( single intent). Court mentions spirit of pleasantries- presumably implied consent/common daily touchings iv. Random notes- Why shouldn't law imply consent- Complete immunity of our person, right of the inviolability of person b. Why is consent a defense- violenti non fit injuria- the willing have no legal injury c. Schloendorf- As long as conscious and competent you can refuse life saving treatment d. Kennedy v Parrott- i. Facts- Surgeon doing appendectomy and finds cysts on ovary. Punctures cysts without negligence. ii. Is this a trespass? iii. Result- No. P consent to surgery. May extend consent within the area of the incision. Extend for abnormal or diseased condition in the same area. e. Reason to resist- opinion- Consent shouldn't be extended when it comes to removal of major bodily functions/oragns f. Hypos- i. Ask to be thrown into a lake and break neck- no battery. You consented to being picked up ii. Fight- bare fists- OK . Opponent switches to bare knuckles- not OK g. Apparent Consent - words, acts, or inaction can indicate consent if interpreted that way by a reasonable person i. O'brien v. Cunnard 1) Facts- Woman vaccinated to get into country. Originally refuses, but then raises arm like others entering country. Never expressly consent to. Has violent reaction to vaccine 2) Issue- Is there a battery? 3) Result- no. Apparent consent. ii. Is failure to protest the same thing as consent? RST would indicate that a reasonable person could find it is consent iii. Hypo- Kiss- passionately kiss and sprain neck- battery? 1) No protest- a reasonable person would accept that as consent 2) Reasonable person would have immediately protested a) Exception- Illegal act-reasonable person does not have a duty to accept an illegal act- Don't have to say "please don't hit me"

False Imprisonment Result

1. person is actually confined and they know it a. Does P have to prove nonconsent to confinement- Garlock thinks yes b. Do you have to be conscious to be confined? i. If unaware that freedom has been infringed, you do not suffer harm- have to know ii. But if you suffer substantial harm as a result of confinement you have a C.O.A.

3 Elements of Intentional Torts

1.) Intent 2.) Conduct 3.) Result

How does jury decide dual intent?

1.) look into mind of actor 2.) look at age, education, skillet

Intentional Infliction of Emotional Distress Rule

A person is liable for IIED when he/she intentionally or recklessly acts in an extreme and outrageous manner which causes severe emotional harm to another. Bodily harm is not required.

Rule of False Imprisonment

A person is liable for false imprisonment if he wrongfully and intentionally confines another in a particular space or vehicle against her conscious will by means of force or threat of imminent force.

Proximate Cause

A. - "Scope of Liability" 1. General: Even after P has shown that D was the cause in fact of Ps injuries, P must show that D was the proximate cause of those injuries, that the injury of P is within the "scope of liability" of the neligent acts of D. a. Requires a sufficiently close relationship between Ds conduct and the injury. This is not an issue until P shows there was a breach. Limiting liability for the harm that D has caused. May not always arise if P suffers the primary harm associated with the negligent act of D. (ex. P is hit by D bc they ran a red light) b. Elements to consider for proximity: c. Breach ►(Time) ► (Actions) ► (Distance) ► Injury

Duty

A. - Conform conduct to a standard necessary to avoid unreasonable risk of harm 1. Generally- a. Active/affirmative conduct carry a general assumption that your action will not increase the risk of harm to others b. Duty is a legal question/not a jury question General Rule: Duty

I. Defenses to Negligence

A. Application: On exams if you want to prove this, you have to go through contributory negligence the same way as regular negligence, don't have to say the rules, just do the analysis for each element. This would go after the damages element of the Ds negligence. 1. Usually an issue for the jury 2. Elements a. Duty: P has a duty to use reasonable care for ones own safety. b. Breach of Duty: Conduct on the part of the P which falls below the standard to which he should conform for his own protection, and which is a legally contributing cause co-operating with the negligence of the D in bringing about Ps harm. i. RIL CANNOT BE USED ii. Negligence per se- depends on legislative intent 1) If statute sets a general standard of care then P can be contributorily negligent 2) If statute sets an absolute standard of care- ex. Laborers and children- then no. c. Cause in fact: Ps negligence that contributes as a cause to their own harm, P & D can both be the cause of Ps injuries d. Proximate Cause - the intervening conduct of the P is not regarded as a superseding cause e. **Damages** - Essentially did P's negligence cause damage to P f. Caveat: just bc a P may be found Contributorily negligent does not mean the D gets a directed verdict, if reasonable minds might disagree then the P gets to the jury. Only if the issue is so one-sided then the court would take the issue from the jury. Proving CN is not an automatic win. g. Recovery Depends i. Contributory Negligence - No recovery for P if Proven ii. Comparative Negligence - Depends on the percent neligent proven B. Contributory Negligence 1. Overview a. D establishes CN by showing that P's unreasonable conduct caused the Ps injuries. b. All or nothing approach - if proven, completely bars P from recovery c. Policy: P should not recover if P contributed to their injury d. Rule: Contributory negligence is conduct on the part of the P which falls below the standard to which he should conform for his own protection, and which is a legally contributing cause co-operating with the negligence of the D in bringing about Ps harm. e. Butterfield v. Forrester: There was an obstruction in the highway (D put a pole across the road bc he was doing construction but left one side open), Bc of the obstruction P was thrown from his horse and injured, Witness said if P was not going so fast he would have saw the pole. i. Need to look at both P and D's conduct- prove D is neglingent but also that P is not negligent ii. D has burden of proof to prove P's Contributory Neg. f. Beems v. Chicago, Rock Island & Peoria R.R.: P (intestate) was a worker of D, P was trying to uncouple trains, singled to driver that they were going too fast, went back to try to uncouple them and was killed bc D did not slow down. i. What contributory negligence is not ii. D is trying to argue that P was negligent as a matter of law- Court says no properly a jury issue. P wins by jury g. LeRoy Fibre Co. v Chicago, Milwaukee & St. Paul Ry.- P storing straw, aware of train occasionally passing by and throwing sparks. Is P contributorily negligent for fire damaging property? Court says no right of one man in the use of his property cannot be limited by the wrongs of another. i. Rule- You have an absolute right to use property in whatever way you want so long as you are not going to reasonable foresee injury to another ii. You can expose your own property to harm- P has no duty to protect own property from the neglect of others 2. Statutory Violation a. D violates a statute that was designed for Ps protection, can CN be used? i. Same as if the violation was not based on statute law ii. Absolute protection to certain types of Ps, children 1) Child labor acts, sale of guns to minors -> bars CN b. Driver who runs a stop sign and hits someone? i. Peds are not as vulnerable as kids are, failure to RPP can be negligence c. Answer depends on how the court interprets legislative intent d. Ps negligence, failure to use reasonable care has to be casually connected to the injury. i. Ex. No headlights (statute saying you need to have your lights on), is not a cause if it is a bright day e. Spier v. Barker: if the law says that you have to wear a seat belt and you don't, negligence per se? i. Could non-use of belts be applied to damages? Yes. Justification- Use of seatbelt is an option to mitigate damages. D shouldn't have to anticipate the negligence of others and act before hand 3. Seatbelt Defense a. Claim that P is contributorily negligent for not wearing a seatbelt (after D causes a crash) because the failure to wear a seatbelt exacerbated Ps injuries. b. Derheim v. Fiorito Co.: D hit P while trying to turn left and P was not wearing a seatbelt so they sustained injuries. Court held that the seat belt defense cannot be used here because if the courts allow this defense, what would stop defenses in regards to other safety measures not taken (head rest adjustment, etc.) -> lengthy trials and PP costs. Also, it is unfair to mitigate damages to someone who is in no way responsible for the accident i. Court denies the use of the doctrine of avoidable consequences: P could have done something to mitigate the damages - If you can take the steps to avoid damages, then you should be liable if you fail to take those steps 1) Court denied bc - thin skull rule (which is usually an uncontrollable defect, wouldn't this rule out any contributory negligence defense?) 2) This is usually applied to damages that occur after the failure to meet a standard of care a) Avoid further damages by taking precautions AFTER the injury and here D is trying to apply to this situation before the injury is occurring b) If you apply this you are forcing the P to take precautions against something they really couldn't foresee 4. Last Clear Chance - P sues D, D uses P's contributory negligence, P comes back and uses this a. Overview i. Rule: If the defendant discovered or should have discovered the plaintiff's peril, and could reasonably have avoided it, the plaintiff's earlier negligence would neither bar nor reduce the plaintiff's earlier recovery ii. (1) It is only a plaintiff's doctrine—that is, it serves to excuse the plaintiff's contributory negligence in the limited situation described above (and two others listed below). iii. (2) It is still an "all-or-nothing" doctrine—that is, a plaintiff who successfully invokes last clear chance will recover all her damages from defendant; they are not apportioned between the parties. iv. ** If P & D are both inattentive, LCC DOES NOT excuse P's Negligence** b. Helpless Plaintiff (§ 479 LCC): A plaintiff who has negligently subjected himself to a risk of harm from the defendant's subsequent negligence may recover for harm caused thereby if, immediately preceding the harm: i. (a) the plaintiff is unable to avoid it by the exercise of reasonable vigilance and care, and ii. (b) the defendant is negligent in failing to utilize with reasonable care and competence his then existing opportunity to avoid the harm, when he 1) (i) knows of the plaintiff's situation and realizes or has reason to realize the peril involved in it or 2) (ii) would discover the situation and thus have reason to realize the peril, if he were to exercise the vigilance which it is then his duty to the plaintiff to exercise. c. Inattentive Plaintiff (§ 480 LCC): A plaintiff who, by the exercise of reasonable vigilance, could discover the danger created by the defendant's negligence in time to avoid the harm to him, can recover if, but only if, the defendant i. (a) knows of the plaintiff's situation, and ii. (b) realizes or has reason to realize that the plaintiff is inattentive and therefore unlikely to discover his peril in time to avoid the harm, and iii. (c) thereafter is negligent in failing to utilize with reasonable care and competence his then existing opportunity to avoid the harm. d. Davies v. Mann: the P had left his ass fettered in the road eating grass, D negligently drove a team and wagon down the hill and ran over the animal, which, being fettered, was unable to move. The court held that the plaintiff's contributory negligence was no defense. The plaintiff "is entitled to recover," stressing that if the rule were otherwise, "a man might justify the driving over goods left on a public highway, or even a man lying asleep there...." i. C. Comparative Negligence - use when there is a dollar amount 1. Overview a. Rule: a partial legal defense that reduces the amount of damages that a plaintiff can recover in a negligence-based claim, based upon the degree to which the plaintiff's own negligence contributed to cause the injury. Damages shall be diminished by the jury in proportion to the amount of negligence attributable to P. b. P is no longer completely barred by P is assigned a percentage of fault and Ps damages are reduced by their percentage of fault i. Ex. Jury decides the negligence is 30%, damages are 10k, P recovers 70% c. The fact that a P may have been guilty of contrib negligence shall not bar recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such P d. Arguments i. In Favor- 1) Fairness- If P only slightly neg. then they can recover- Distributers responsibility based on fault 2) Juries already tended to do this ii. Against- 1) All parties may not be brought to court- should P be compared to all or those in the suit a) Related what about joint and several liability issues 2) Traditional doctrines- last clear chance, assumption of risk, etc. disappear 3) Difficult to apportion/assign percentage of Negligence a) Temptation for quotient verdict- the idea of averaging out the jurors iii. Guidelines and special verdict instructions can mitigate- jury can be asked to do Hand Balancing iv. Li v. Yellow Cab Co.: P had attempted to cross three lanes of traffic, D's driver was traveling at an excess speed, ran a yellow light and hit P. Rejects contributory negligence, introduces comparative negligence. The court said that contributory negligence was unfair, each party should bare the burden on the injury that they caused. 2. Types of Comparative Neg. a. Pure Comparative Negligence i. Apportions liability in direct proportion to fault in all cases even if the P is more negligent than the D the P will recover a portion. (If P is more negligent than D, they can still recover) b. Modified Comparative: damages on the basis of fault up to the point where Ps negligence is either equal to or greater than the D i. Greater Fault Bar: P is only barred if their negligence is 51% - greater than the Ds ii. Equal Fault Bar: P is barred if the neg is equal to the D - P barred at 50% 3. Multiple Defendants - states are split a. Modified System - should Ps negligence be compared to each individual Ds negligence or the total of Ds negligence? i. Greater fault bar - , is plaintiff barred if her negligence is greater than any one defendant's negligence or only if it is greater than the sum of all defendants' negligence? 1) Ex. #2: Plaintiff is 40% negligent; Defendants A, B, and C are each 20% negligent. In this case, plaintiff will be barred if her negligence is compared to each defendant alone (40%>20%) but not barred if her negligence is compared with the sum of all three defendants' negligence (40%<60%). 2) States that would bar -> say it violates equal/greater fault bar to hold any D liable if a P is more negligent then that D alone 3) States that would not bar -> unfair to the P to bar her when her negligence is less than the combined negligence of all parties. b. Whether one is in a pure or modified system, is each defendant liable to the plaintiff only for its proportionate share of negligence, or is each defendant jointly and severally liable to plaintiff for her whole award? i. Pennsylvania (371): Plaintiff may initially collect her whole award from any one defendant (even if that party has been only minimally negligent), i.e., there is joint and several liability. If any defendant has paid more than its percentage share, it may then seek contribution from other defendants. ii. Texas: Each defendant is liable initially only for its own proportionate share; joint and several liability is abolished. c. Absent Defendants i. Is P able to recover the entire award from the present defendants or only the award represented by the defendants d. Indivisible Damages i. How much fault should be assigned to each 1) Pro rata shares- split shares equally a) D's can worry about contribution afterwards 2) Right of indemnity- 1 tortfeasor could shift entire liability to another D- rare a) Partial indemnity- proportional contribution ii. Right of contribution is common in most jurisdictions 1) Issues here- what about an insolvent D. D. Assumption of Risk (this is about Implied Assumption of Risk) 1. Overview a. Bars plaintiff from recovering even when defendant has acted negligently toward her and plaintiff has acted reasonably in encountering the risk created by defendant. b. Elements: Plaintiff must - i. (1) know of the risk that results in her injury, ii. (2) understand (appreciate) the nature of the risk, iii. (3) know of the specific risk iv. (4) voluntarily encounter the risk, and (some courts would add) that v. (5) plaintiff's conduct under all the circumstances indicates that she consents to relieve defendant of the duty to protect her. c. Explicit assumption of risk is a matter of contract law d. This is the negligence analog to consent- P implicitly consented e. Generally has been a movement to abolish assumption of risk as an affirmative defense- comparative neg. f. This is generally pretty subjective- what did the specific P know going into the conduct 2. Knowledge of the risk a. Murphy v. Steeplechase: P was at Ds amusement park, P saw people having fun on a ride(the flopper) and falling off, P got on the ride, said it jerked and threw him off and he fractured his knee cap. P was barred from recovery bc P knew there was a risk of falling, that was the point of the ride, the inherent risk. His knowledge by seeing people on and still getting on the ride he accepted the risk, even if he didn't see the people falling, the name of the ride is the flopper. i. Rule: If you voluntarily encounter some known risk, you will be barred by assumption of risk. Someone who participates in an activity consents to the risks that are obvious and necessary in the activity ii. Volenti non fit injuria- the willing suffer no injury 3. Appreciation of the risk a. Maddox v. City of New York: P, baseball player suffered carrer ending injury when his foot got stuck in mud that was on the field. P knew of the risk and being a professional baseball player was able to appreciate it, even so knowing that mud is wet is common knowledge. 4. Knowledge of the SPECIFIC risk a. Russo v. The Range Inc.: P went down a giant slide at Ds amusement park, the ticket he bought said that he assumed liability for any risks, P was injured in an unusual event. P was able to make it to the jury bc he did not assume that specific risk. 5. Risk encounter voluntarily a. Marshall v. Ranne: P was trapped in his house for fear of getting bitten by D's boar. P attempted to get into his car to leave but the boar came up to him and bit him. P did not assume the risk because he was not given a choice, he had no alternative and the boar was taking away a legal right from him. b. Action was not voluntary if in order to enjoy one legal right P is forced to give up another legally protected right c. Allen v. Brenda- Get in car with bad brakes to save your life. D told P of bad brakes(did not impose a wrong P). D is not liable for injuries from accident caused by bad brakcs i. P was compelled by circumstances- he voluntarily got in car ii. There needs to be a lack of alternative from D's tortious conduct 6. Meistrich v. Casino Arena Attractions, Inc: P was iceskating at Ds park, P fell and got hurt. Allegations that D negligently prepared the ice and allegations that P assumed the risk bc he knew his skates were slipping and was skating locked arms with someone. a. Primary (either no duty owed or the duty was not breached): i. The plaintiff's assumption of a risk is only the counterpart of the defendant's lack of duty to protect the plaintiff from that risk. In such a case plaintiff may not recover for his injury even though he was quite reasonable in encountering the risk that caused it. ii. the court assumes that you fully comprehend the risks of participating in an activity because those risks are perfectly obvious to any reasonable individual. iii. Not an affirmative defense, prima facie negligence - P cannot prove that D had a duty or that they breached it iv. If plaintiff cannot prove that defendant owed her a duty of care or breached that duty, "primary" assumption of risk is established, and the plaintiff cannot recover v. If plaintiff can prove defendant owed and breached a duty of care, then plaintiff is said to "negate" primary assumption of risk, and plaintiff potentially can recover. vi. Basically can the P prove their prima facie case of negligence? That's all primary means b. Secondary (assumption of risk as an affirmative defense to an established breach) i. Really an aspect of contributory negligence, comes into play only if P proves duty & breach ii. If defendant did owe and breach a duty of care toward plaintiff, and if plaintiff then knowingly and voluntarily encountered the risk so created, the only issue regarding plaintiff's conduct is whether plaintiff acted negligently (unreasonably) in encountering the risk. iii. "secondary" or "unreasonable" assumption of risk is really a form of contributory negligence c. Analysis: i. First, one must decide whether defendant owed or breached a duty of care toward plaintiff in relation to the particular risk that resulted in plaintiff's injury. 1) If defendant did not owe or breach a duty of care toward plaintiff, the case would stop there, because plaintiff's prima facie case has failed; the court would not have to reach the issue of plaintiff's negligent (secondary) assumption of risk. 2) Only if the court concludes that defendant owed and breached a duty of care to plaintiff would it then go on to a second level of analysis involving plaintiff's conduct. ii. The question then would become whether plaintiff acted negligently in encountering the risk (secondary assumption of risk); 1) if so, defendant would have an affirmative defense based on plaintiff's negligence. E. Assumption of Risk v. Contributory Negligence 1. You can assume the risk without being contributorily negligent a. You can encounter a known risk carefully [or not] b. You can be barred, even though you are acting reasonably c. So, if a shopping mall negligently leaves ice on its sidewalks, plaintiff customer sees and understands the risk of slipping on the ice, and voluntarily and carefully walks across it to get to a store, she may have assumed the risk of slipping and falling but would not be contributorily negligent (at least not necessarily). 2. You can be contributorily negligent without assuming the risk a. If you do something negligent but you do not know of the risk b. If the plaintiff does not see the ice but a reasonable person would have (perhaps because there was freezing rain early that morning) and plaintiff unnecessarily runs across the ice, plaintiff may be contributorily negligent, but would not have assumed the risk. 3. You can be both: a. If the plaintiff both sees the ice and unnecessarily runs across it, she may have both assumed the risk and been contributorily negligent. 4. Implied assumption of the risk under comparative negligence? - courts are split. a. Courts generally agree that if plaintiff unreasonably (negligently) encounters a known risk, plaintiff's conduct is not a complete bar but rather diminishes plaintiff's damages—i.e., plaintiff's negligent assumption of risk merges with comparative negligence. (Li) b. Some courts continue to hold that plaintiff's reasonable assumption of risk remains a complete defense, even after the adoption of comparative negligence. c. Other courts have abolished assumption of risk as a defense and say that the only issues are whether defendant owed and breached a duty of care toward plaintiff (primary assumption of risk is negated) and, if so, whether plaintiff, in confronting the risk created by defendant's negligence, acted unreasonably (secondary assumption of risk). i. Under this view, if plaintiff reasonably confronts the risk created by defendant's negligence she is not barred—i.e., reasonable assumption of risk ceases to be a defense, and plaintiff would recover all her damages. ii. If plaintiff unreasonably confronts the risk, her damages may be reduced, but she is not completely barred. 5. Some courts say that even if plaintiff has reasonably confronted a risk created by defendant's negligence, her reasonable "assumption of risk" can somehow be compared to defendant's negligence and her damages may be reduced, although she will not be completely barred. 6. Garlock prefers - that the better view is that if plaintiff has reasonably confronted a risk created by defendant's negligence, she should neither be barred nor have her damages reduced.

CONTRIBUTION AMONG JOINT TORTFEASORS

A. Arises in situations of concerted actions, joint duty or indivisible harm B. Several Liability 1. A situation in which each person has an obligation to pay only a proportionate share - risk of insolvency for P. Each D is only liable for the amount they are responsible 2. Each defendant is liable to plaintiff for only the portion of plaintiff's damages which that party is deemed to have caused, or, under comparative negligence, which is represented by its proportionate share of negligence. C. Joint Liability 1. Arise in a case where one of many Ds caused a Ps injury but it is not possible to determine which D. See Summers v. Tice 2. Burden switches to the D to show that each did not cause the injury. D. Joint & Several Liability 1. Overview a. A situation in which each of several obligors (anyone who bears an obligation) can be responsible for the entire loss if the other are unable to pay. b. Any D may be liable for the full amount of damages no matter how much they contributed. c. That each of two or more defendants is initially liable to plaintiff for the entire amount of plaintiff's damage award 2. One D has paid off the entire damages to a P when there are other tortfeasor, now they may seek contribution or indemnity from the co-defendants a. At common law, a tortfeasor could not seek either bc the notion was that a culpable party had no right to the court's assistance in obtaining reimbursement from other parties. b. Under the new regime, a tortfeasor who paid more than its "pro rata share" (usually determined on the basis of equality) might seek contribution from other tortfeasors who were found liable; each would owe the paying defendant its pro rata share. 3. Contribution - allows a loss to be shared among multiple tortfeasors a. A defendant who seeks contribution from another defendant attempts to recover a portion of the damages it has paid plaintiff; b. Used in order to distribute loss by requiring co-defendants to pay a proportion 4. Indemnity - allows a loss to be shifted entirely from the paying tortfeasor to a non-paying tortfeasor in certain circumstances a. a defendant who seeks indemnity from another defendant seeks to shift the entire financial responsibility onto that party. b. Required another party to reimburse in full the party that has discharged the common law liability 5. In Comparative Negligence a. AMA v. Superior Court: Defendant sought leave to file a cross-complaint against Plaintiff's parents, alleging their negligence and improper supervision of their minor son. Defendant also requested that the judgment be reduced by the amount of the "allocable negligence" of the parents. The trial court denied Defendant's request. Defendant appealed. b. AMA, defendant AMA argued that since comparative negligence now apportioned damages between plaintiff and defendant(s) on the basis of fault (under the rule of Li), the court should also apportion damages initially among defendants on the basis of fault [several liability]. That is, joint and several liability should be abolished and each defendant should owe plaintiff only its share of the damages, as determined by its percentage of fault. The AMA court, in keeping with the majority of jurisdictions at that time, rejected this contention and held that comparative negligence did not abolish joint and several liability. i. Adapted the common law doctrine of indemnity "to permit a concurrent tortfeasor to obtain partial indemnity from other concurrent tortfeasors on a comparative fault basis. c. Insolvency of a Co-D? i. In a joint and several liability jurisdiction, two main approaches have emerged to deal with this issue. ii. In one, remaining solvent defendants must apportion the insolvent defendant's portion of damages among themselves, in proportion to their percentages of fault OR iii. the insolvent defendant's share is apportioned among remaining solvent defendants and plaintiff d. Settling Co-D? i. What happens when a D who is responsible for a certain portion of damages settles for less than what they contributed? ii. Under the old pro rata contribution scheme, based on equal shares, B and C would be given a credit for A's pro rata share, no matter how much A had settled for. iii. Under the approach adopted in AMA, non-settling B and C would be given a credit only for the dollar amount for which A actually settled, not an equal pro rata share and not an amount represented by A's percentage of negligence. (the non-settling Ds are liable for the rest) iv. Under the approach in the dissent of AMA, the non-settling defendants would pay only the amounts represented by their proportional negligence. In effect, they would be given a dollar credit for an amount represented by settling A's percentage of negligence, not the amount A had settled for. (P would lose out on what she let the other settle for)

I. Negligent Infliction of Emotional Distress

A. General basis of liability: The defendant breaches a duty to the plaintiff by creating a risk of physical injury and the plaintiff suffers emotional distress as a result 1. The plaintiff must be within the "zone of danger" and ordinarily must suffer physical symptoms from the distress 2. Exception: The defendant breaches a duty to a bystander not in the zone of danger who (i) is closely related to the injured person, (ii) was present at the scene of the injury, and (iii) personally observed or perceived the event

Vicarious Liability (form of strict liability)

A. Overview 1. Aka respondeat superior ("let the master answer" [in damages]) 2. It allows a "master," although faultless, to be held liable for the tort of a "servant," usually negligence but sometimes an intentional tort, when the servant is acting "within the scope of employment." 3. Liability for the fault of another - in essence it is a form of strict liability on employers 4. In most cases, this is so obvious that it is not disputed by the Ds or courts(universally accepted) 5. This varies according to whether the employee is an independent contractor and if they were acting within the scope of their employment 6. Can also sue the employer for their direct negligence: if the employer hires an incompetent employee, negligence supervisions (employer knows or should know that he is committing torts) or the employer directly orders the employee to committee a tort B. Application 1. To bring such an action, a plaintiff must prove that the servant committed a tort. 2. Two questions must be answered: a. (1) Was the tortfeasor a servant (employee) or an independent contractor, and b. (2) if a servant, was he or she acting within the scope of employment? i. The former question may be important since the general rule (subject to several exceptions) is that one who hires an independent contractor is not liable for the torts of such contractor. C. Determining independent contractor or employee? 1. General rule: An employer is not liable for the torts of an independent contractor. 2. Independent contractor: one who, by virtue of his contract, possess independence in the manner and method of performing the work he has contracted to perform for the other party to the K. o those who have the "right to dictate and control the manner, means [or method], and details" of performing the job. They are "usually persons who are perceived to be operating their own business and hence not subject to the employer's right of control over the manner, means, and details of the work." a. RULE: The IC has to be an apparent or ostensible agent or is hired to perform nondelegable duties or an activity so intrinsically dangerous that the employer should realize it involves a peculiar risk of harm. b. Ask: Whether the party for whom the work was to be performed had the right to dictate and control the manner, means and details of performing the service is the test to be applied? i. If yes -> Employer is liable, if not -> Employee is liable 3. Some factors courts may look at to determine whether the person employed is a servant (employee) or independent contractor include: a. whether by agreement the employer may determine the details of the work, b. whether the one employed is engaged in a distinct business or occupation, and the special skills required of him or her, c. who supplies the place and instrumentalities of the work, d. the length of time the employment is to last, e. the method of payment (periodic wages or lump sum?), f. may the person employed fire his or her own employees? 4. Exceptions: a. Work involving an inherent danger (e.g., blasting) i. These activities involve some "special danger" "inherent in or normal to the work," which requires the worker to take reasonable precautions against the dangers. This category overlaps to a certain extent with activities deemed "abnormally dangerous" for the purpose of imposing strict liability on the one engaging in the activity, but the category may be broader—including, for example, use of strong acids, acetylene welding torches, or high voltage electric lines. b. Work involving some special risk in the particular job, not necessarily inherent (e.g, hauling giant logs on the highway), and i. activities that are not necessarily "inherently dangerous," but where there is a peculiar risk on the facts of the case requiring special precautions—for example, using cranes in construction that may drop very heavy girders, demolishing buildings that may fall on adjacent buildings, or hauling heavy logs that may strike another vehicle. c. Non-delegable duties (see, Colmenares) i. These are duties that are of such importance to the public in general or particular parties that courts feel the duty of reasonable care may not be shifted from the employer to the contractor. As said in Colmenares, there are "no set criteria" for determining whether a duty is non-delegable. Others might include the duty not to withdraw lateral support to adjoining property when doing excavation work on one's own, the duty not to obstruct public highways, and the duty to keep premises reasonably safe for business invitees D. Determining which acts fall under scope of employment? 1. The master is liable for the tort of his employee if the employee was acting within the scope of his employment 2. Motive Test: whether the servant's conduct "was actuated, at least in part, by a purpose to serve the master"? a. (1) Conduct of a servant is within the scope of employment if, but only if: i. (a) it is of the kind he is employed to perform; ii. (b) it occurs substantially within the authorized time and space limits; iii. (c) it is actuated, at least in part, by a purpose to serve the master, and iv. (d) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master. b. (2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master. 3. Policy Test: whether the imposition of vicarious liability under the facts of a given case would serve the policies underlying vicarious liability? [used by the D.C in Bushey] a. The judge identified two such purposes: i. (a) "more efficient allocation of resources" (would vicarious liability induce the master to take steps to prevent further accidents), and ii. (b) "loss spreading" (placing liability on the party with greater resources (the "deep pocket"), who can then spread the loss through insurance or price increases). 4. Foreseeability Test: Was the servant's tort "characteristic of" the activities of the business (or not too "unforeseeable")? a. Given the totality of the circumstances surrounding an employer's employees, if it is reasonably foreseeable that the employees will cause some type of harm, then the type of harm that actually occurs is irrelevant. The employer will be held liable for the harm done by the employee. i. In the context of intentional torts - whether the servant's conduct was "so unusual or startling" that it should not be fairly attributed to the master as a cost of doing business

I. STRICT LIABILITY

A. Overview 1. Imposition of liability on a party without a finding of fault (it was not negligent and was not intentional), only need to prove that the tort occurred and that the D was responsible. 2. Purpose is deterrence of inherently dangerous activities. 3. Courts apply SL in situations where seriousness of the risk mandates making the D liable for all potential harm to the P. Injury from a wild animals owned by D or abnormally dangerous activities under taken by the D

Negligence

A. Rule: an act or conduct whether commission or omission that creates unreasonable risk of harm to others. The elements that must be satisfied would be duty, breach of duty, cause in fact, proximate cause and damages.

Trespass to Chattels

A. Taking, using, damaging, destroying personal property 1. Rule- A person is liable for trespass to chattels if he/she intentionally interferes with P's exclusive right to possession of property without P's permission.

Elements of Negligence

A.) duty B.) breach c.) causation in fact d.) proximate cause e.) damages

Conduct

Anything that causes contact- contact with anything tangible

Trespass Result

Being on land

Damages

Damages exist if the victim suffered harm following the actor's conduct

Result

Harmful/Offensive Contact with anything occurs

Intentional Infliction of Emotional Distress (IIED)-

IIED when actor by extreme and outrageous conduct causes severe emotional distress to another (tort of outrage)

Rst. 2d. §281:

If the actor's conduct creates such a recognizable risk of harm only to a particular class of persons, the fact that it in fact causes harm to a person of a different class, to whom the actor could not reasonably have

Assault Intent Element

Intent to cause imminent apprehension or intent to contact (inchoate threat) a. Tuberville v Savage- " If it were not assizetime" i. Facts- words and hand on sword i. Rule- Words can negate intent

False Imprisonment Intent

Intent to confine (transferred intent is possible)

What kinds of harms are foreseeable

One decides if the harm was a foreseeable kind of harm when the negligent conduct is reasonably known to cause a certain typeof injury and there is not intervening cause

Harmful

Physical harm

Defenses to Intentional Torts

Privilege Consent Custom Defense of Property Recapture of Chattels Mental Disability Necessity Implied License

Trespass Conduct

Stepped/moved/etc onto property

Lynch v. Fisher-

Trucker leaves truck in road without any flares- accident happens. Good Samaritan comes and saves man and his wife- goes back to the car sees pistol and grabs it along with something to rest wives head on. Gives gun back to injured gets shot by the person he saved. Sues the truck for causing the accident. No court would see this as foreseeable consequence of a truck not leaving flares out.

Defenses of False Imprisonment

a. Accident b. Consent c. Defense of property d. Reasonable means of escape e. Shopkeeper's privilege- Merchants privilege f. Implied license

Exceptions to reasonable care in negligence When preventative measure exposes public to even greater risk:

a) Cooley v. Public Service Co. : D (power company)'s, wires crossed with telephone wires while P was on the phone, during a bad storm and the phone blew up. P said that D could have created a basket to catch the wire which would have prevented the damage. However, if D did that they would be creating an even bigger risk. i) Rule: When an actor's conduct necessarily creates a risk of harm to two different persons, or classes of persons, both of which cannot be eliminated by the actor's use of reasonable care, the actor will not be negligent [breach of duty] for failing to prevent the lesser of the two risks

Vosburg v. Putney

a) Facts- Boy kicks/lightly touches classmate and significant damage ensues. Unlawful act- violated decorum of classroom after it had been called to order i) thin skull rule- take the P as they are b) Issue- Does actor have to intend to harm someone to satisfy intent element. c) Rule- i) No- Intent just has to be intent to commit an unlawful act/ make contact ii) Actor is liable for all damages directly caused by action whether the could be foreseen or not

1) Harm within the Risk

a) Harm within the risk is more precise then foreseeability b) Definition: not clear exactly what is to be foreseen, focuses on the particular risks that make the D's conduct negligent in the first place c) Rst. 3d §29: An actor's liability is limited to those harms that result from the risks that made the actor's conduct tortious. i) Berry v. Sugar Notch Borough: P was driving during a windstorm at an excess rate of speed, a tree fell on his car (D knew the tree was dangerous). P was not contributorily negligent bc his speed had nothing to do with the three falling ON TOP of his car as he passed under it. The harm that the statute is meant to protect against would be that he would not be able to stop in time but here that was no a factor. 1)) Rule: To impose liability based on the violation of a statute, the violation must be the cause of the injury sustained, and not some mere coincidence. Speeding was not the cause of the injury ii) anticipated injury does not make the actor liable to the persons so injured

i. Negligence & Criminal Acts:) §449- Tortious or criminal acts the probability of which makes actor's conduct negligent

a) If the likelihood that a 3rd person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby

1) Increased risk of harm but damage not a result of that increase:

a) If you give a child a loaded gun and they drop in on their toe and break it, you are not liable bc the increased risk of harm the P created never materialized.

1) Foreseeability Rule:

a) Rst.2d §448 Intentionally Tortious or Criminal Acts Done under Opportunity Afforded by Actor's Negligence: The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor's negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct should have realized the likelihood that such a situation might be created thereby and that a third person might avail himself of the opportunity to commit such a tort or crime.

1) Foreseeability of Creation of Risk:

a) Rst.2d §449 Tortious or Criminal Acts the Probability of Which Makes the Actor's Conduct Negligent: If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious or criminal does not prevent the actor from being liable for harm caused thereby

i. Negligence & Criminal Acts:1) §448- Intentionally tortious or criminal acts done under opportunity afford by actors negligence

a) The act of a 3rd person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor's negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, UNLESS the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a 3rd person might avail himself of the opportunity to commit such a tort or crim.

Breach

a. Breach: conduct that falls below standard of care (often referred to as negligent conduct) involves concept of reasonable person & calculus of risk

1. Brown v. Dellinger

a. Facts- kids often played ball on property. Kids brought matches on property and use charcoal lighter- burned down garage/house b. Takeaway- Using land not for purpose that is allowed- trespasser

Trespass to Chattels Result

a. Interference- Show actual damage b. Unpermitted use- show compensable damage c. Damaging or destroying property- Tort of Conversion- pay full price for destroyed property d. P can recover for nominal damages when D has intentionally dispossessed P of the chattel but P cannot recover for nominal damages when D has merely interfered

Defenses to Intentional Torts Custom

a. Consent i. Longstanding relationship may bar trespass action- custom between neighbors ii. Sports- assume battery actions 1) Hackbert v. Cinci Bengals- a) Conduct was outside of the rules of the game. Person does not consent to deliberately illegal contacts- P could recover. b) Blows/flagrant infraction unrelated to the normal method of playing the gamedone without any competitive purpose- liability can be allowed 2) Nabozny v. Barnhill- conduct has to be willful, deliberate with reckless disgread for safety 3) Marchetti v. Kalish- Kick the can. Collided legs. Broken leg a) Need to have intent to injure or be reckless b) Implicitly consents to contact unless intentionally inflicted injury or reckless disregard- Reckless- very high degree of risk that injury will occur and actor knows this iii. Courts generally seem to apply same standard to all levels of sport iv. Hudson v Craft- 1) Facts- Illegal boxing match. Case against promoter even though he never touched anyone. Laws in place against illegal unregulated fights. 2) Issue- Is this a battery? 3) Result- If it was legal- consent would bar the action. However- a) Majority view- cant consent to a violation of the law. i) Protected groups of people- by statue 1)) Why allow action- public policy- stop promoters from promoting these kinds of fights b) Dissenting view- Consent is valid if it otherwise would. Both parties are equally at fault- Volenti non fit injuria- willing have no injury b. Barton v. Beeline i. Facts- 15 year old consents to have sex ii. Action is not allowed despite statute in place to protect group of people- willing participation to something that law tries to protect her against. P had full understanding of her act and should not be rewarded.

Duty

a. Duty to conform his conduct to a standard necessary to avoid an unreasonable risk of harm to others - an obligation to live up to some standard

1. Calculus of Risk Standard of care for determining negligence

a. Elements of calculation of risk: (1) foreseeability (2) an unreasonable risk of harm b. WAS THERE A FORESEEABLE RISK?: (there's always a foreseeable risk - use the facts) i. Blyth v. Birmingham: D was a company in charge of the water mains & fire plugs, there was a very bad frost storm, water got into Ps house bc visible frost on the fire hydrant clogged the water from getting out the correct way. Court found that D was not liable for not taking enough precautions against an unforeseeable ice storm. D could not have anticipated the incident 1) Rule: One cannot be held liable for failing to guard against a risk of harm that is not expected or so unforeseeable ii. Stone v. Bolton: P lived across the street from a cricket range, P was hit with a cricket ball, which rarely ever made its way that far. P claimed that D should have moved the pitch farther & made the fence higher. Court uses foreseeability test. Holds no matter how rare the even, if it happened before it is foreseeable it will happen again. (appealed below) 1) Rule: D is liable for damages because they were reasonably foreseeable. Neglingent if you do not take any precautions. D says there is nothing they could do- court responds then do not play at all. iii. Gulf Refining Co. v. Williams (hypo based on this from the notes): D sold P a gas drum with worn out threads on the cap, P tried to open the cap and it started a fire. D knew that the threads were worn. 1) Rule: Foreseeability of a harm is the existence of such a likelihood of damage so as to induce action to take care against it on the part of a reasonably prudent person iv. Foreseeability is an ON/OFF switch- it is a necessary requirement- no foreseeability-> no neglingence v. Breunig- Sudden unexpected delusion not foreseeable

1. Cleveland Park Club v. Perry

a. Facts- Boy damages drain in pool- Area of invitation did not include drain. b. Takeaway-If you exceed area of invitation you are a trespasser

Dougherty v. Stepp

a. Facts- D went onto land because he thought it was his. There were no marking on trees/bushes- D broke the close. Treading down the grass or the shrubbery. b. Issue- was there trespass c. Result- Unauthorized and therefore unlawful entry is a trespass 2. P only have to prove entry to property- D would have to prove P consented to

1. Cullison v. Medley- "Jump astraddle"

a. Facts- Man talks to daughter- Family shows up at house at night and berates him and shows him gun- never pull and point gun. Later interactions seem threatening b. Issue- Is this assault? c. Result- Yes. Intent to cause imminent apprehension. Result- SC court says assault is trespass on the mind. Conduct- Despite not pulling gun- there was enough given all facts to find assault- WORK THE FACTS FOR EXAMS d. Commentaries- Surround with a display of force (part of the conduct)

1. General Rule: NO Duty to Rescue

a. General Rule: § 37 No Duty of Care with Respect to Risks Not Created by Actor: An actor whose conduct has not created a risk of physical or emotional harm to another has no duty of care to the other unless a court determines that one of the affirmative duties are applicable. i. Good Samaritan Doctrine: where the defendant was not responsible for the plaintiff's predicament and no special relationship existed between them then the defendant is under no duty to aid the plaintiff. 1) Yania v. Bigan: D told P to jump into a mining cut, P did and he drown. Brought suit for failure of D to jump in and save P. Court said that D had no duty to do so. a) All omission cases have a causation issue- did D cause P to jump?

Duty Owed To Third Persons - Special Relationships

a. Generally(§315): There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless i. (a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or ii. (b) a special relation exists between the actor and the other which gives to the other a right to protection. b. They are court created exceptions i. Examples- parent-child, husband-wife, jailors-prisoners, shipcaptian-crew, daycare-child, businessperson-patron.

Affirmative Duties

a. Generally: the law of affirmative duties deals with circumstances under which the defendant may owe a special duty of care to the plaintiff. Usually, this will be a duty owed in addition to the general duty to due care the defendant owes under the "reasonable person" standard. In other words, the defendant may be liable for nonfeasance and well as misfeasance in certain situations. i. Misfeasance: Breach of duty through an action (positive act), duty is to abstain from hurting other persons ii. Nonfeasance: Breach of duty through a failure to act 1) liability may be imposed on the defendant for his failure to act because he is under some affirmative duty to aid, assist, or protect the plaintiff from harms the defendant did not cause or bring about. b. When does an actor become liable for nonfeasance? c. Categories: Four main types of categories of affirmative duties: i. Duty to Rescue ii. Duties of Owners & Occupiers iii. Gratuitous Undertakings and iv. Duties owed to third persons- Special Relationships

Defenses for False Imprisonment Implied License

a. Implied license- Implied by law- not expressly stated, License- give permission to do something i. Some touching is inescapable part of every life whether we like it or not.

Defenses to Intentional Torts Mental Disability

a. Insanity- Legal term- not a medical term- NOT a Defense to GARLOCK i. McGuire v. Almy 1) Facts- D- Insane woman in room. Required around the clock care. D was known to be violent. Had violent outburst and P tried to enter room to protect D from damaged stuff in the room. D struck P in head with table leg. 2) Issue- is insanity a defense? 3) Ruling- Insane person is able to have the same intent and understanding as a normal person. (if you had to find dual intent a jury could) ii. Insanity can be a defense for some torts- requires specific intent (did not go over in class) b. Reasons to not allow insanity to be complete defense i. More policy (not really about fault) ii. Encourage those interested in welfare to take care- provides incentive- deterrence iii. Insanity is complicated- hard to determine mental state- avoid this difficulty iv. If person can pay for support they can pay for damages. c. Children- compare insanity to children- all children need is intent to cause contact d. Delusions do not matter- intent is still an intent to strike- doesn't matter at what.

Defenses to Intentional Torts Defense of Property

a. Katko v. Briney- shotgun/spring gun case i. Facts- P trespasses on property(old house) to collect antique jars. D had spring gun trap set up in house. Severely injures P's leg- P sues for battery. ii. Issue- Battery? Does law permit use of spring gun to protect property? iii. Ruling- Cannot wound/cause serious bodily harm to someone to protect property 1) If person uses force- you can use reasonable force to defend property a) Escalates to self defense/defense of others 2) Katko permit use of spring gun ever? a) Yes- if trespasser committing felony of violence, felony punishable by death, or where trespasser is endangering human life 3) Doesn't matter if property is super valuable- still not OK 4) Human life is more important than property b. Alison v. Fiscus i. Facts- dynamite on farm to protect property 1) Left to jury to determine if reasonable c. You do not gain privilege by giving notice to trespassers that something is being used to protect property d. You can use serious harm/death only in response to threat of serious harm/death of yourself or to others

Res Ipsa Loquiter-

a. Overview - this is a jury instruction i. Definition: the mere occurrence of an accident implies negligence, "the thing speaks for itself" ii. This is an inference that the duty was breached iii. It is a doctrine of circumstantial evidence(facts that one can infer from) that enables plaintiff to prove that defendant was negligent when plaintiff has no or little direct evidence of such negligence. (can still be used when there is evidence) iv. When applicable, allows the plaintiff to escape summary judgment and directed verdict and get her case to the jury. v. Majority View: allows the plaintiff an inference of negligence that a jury is free to accept or reject, whether or not defendant offers rebutting evidence. vi. Minority View: affords the plaintiff a presumption of negligence. In these jurisdictions, unless the defendant comes forward with some rebutting evidence, the jury must find for the plaintiff.

Defenses to Intentional Torts Recapture of Chattels

a. Really an extension of reasonable force to protect property b. Do have privilege to use reasonable force to recapture c. Requirement of hot pursuit- has to be prompt and continuous d. Have to lose property through fraud e. If you voluntarily give up property- have to go through legal means f. Why lose privilege- upsetting status quo, breach of peace to run down and capture

Duty To Rescue Exceptions Gratuitous Undertakings

a. Situations where an actor had no duty to do something then incurred a duty by undertaking (rendering assistance) and may be subject to liable if they do it negligently b. Duty of One Who Takes Charge of Another Who is Helpless (§324): RST3d §44 i. One who, being under no duty to do so, takes charge of another who is helpless adequately to aid or protect himself is subject to liability to the other for any bodily harm caused to him by: 1) (a) the failure of the actor to exercise reasonable care to secure the safety of the other while within the actor's charge, or 2) (b) the actor's discontinuing his aid or protection, if by so doing he leaves the other in a worse position than when the actor took charge of him ii. Zelenko v. Gimbel Bros: P became ill in Ds store, D did not have any duty to P at first. D took P in but left him by himself instead of getting him medical care (they made his position worse by segregating him from others that might help him), by segregating him they took the opportunity away from others to help him 1) P was in a worse position by depriving the opportunity of others to help c. Duty Based on Undertaking: i. An actor who undertakes to render services to another and who knows or should know that the services will reduce the risk of physical harm to the other has a duty of reasonable care to the other in conducting the undertaking if: 1) (a) the failure to exercise such care increases the risk of harm beyond that which existed without the undertaking, or 2) (b) the person to whom the services are rendered or another relies on the actor's exercising reasonable care in the undertaking ii. Marsalis v. LaSalle: P was bitten by Ds cat, P told D to keep the cat under watch so they could see if it had rabies, D said that they would. D did not take reasonable care to do so, cat got out. P went ahead and got the rabies treatment, P was allergic to the treatment and had a bad reaction. 1) Rule: One who voluntarily takes upon oneself a duty is under a legal obligation to use reasonable in carrying out that duty. 2) Not many cases like this

Standard of proof:

a. causation must be proved by a preponderance of the evidence, which means that plaintiff must establish that defendant's negligent conduct caused her injury more probably than not i. When the plaintiff sues all of multiple actors and proves that each engaged in tortious conduct that exposed the plaintiff to a risk of harm and that the tortious conduct of one or more of them caused the plaintiff's harm but the plaintiff cannot reasonably be expected to prove which actor or actors caused the harm, the burden of proof, including both production and persuasion, on factual causation is shifted to the defendants. ii. New York Central R.R. v. Grimstad: Decedent fell off of a boat, could not swim, P (wife) saw him drowning, went to go get something to save him but he was gone when she returned. She alleged that but for Ds negligence in not having proper equipment she could have saved her husband. Court said that even with equipment they do not know for sure that he would have survived, that was only speculation. 1) Rule: If there is not enough evidence, then the jury may not be allowed to find that the failure to have safety precautions was the butfor cause.To be liable for negligence the cause of the accident must be more than pure conjecture and speculation. It must be the cause in fact of the injury. 2) Court slices and dices the event to see if anything would happen.

Duty To Rescue Exceptions Discontinued Performance

a. if one gratuitously undertakes a duty, and the defendant fails to perform that duty where he knew or should have known that the plaintiff was refraining from obtaining other necessary assistance in reliance on the duty the defendant can be liable (Reliance on the promise or duty is the difference between the majority and minority view) i. Erie R.R. Co v. Stewart: D had a custom of stationing a watchman to warn traffic of oncoming trains, one day Ds watchman was not there, P crossed the tracks and was struck by a train. 1) Rule: Once an agency establishes for its self a standard of care that lead others into reliance upon it, the agency is not permitted to say that they have no duty to those 2) D would need to withdraw duty with reasonable notice 3) Reliance is key because if D never used the watchman in the first place than people would have taken more precautions in their actions. 4) Reliance- RST 3d §42b b. Are rescuers are injured while trying to rescue are they allowed to recover? (Maybe talk about §44/42 here) i. Yes. You can reasonably assume that someone will come to rescue you ii. Allow recovery to encourage people to rescue iii. If you go to rescue and botch it you are liable- rescuers need to rescue with reasonable care

Duty To Rescue Exceptions Negligent Performance

a. when the defendant makes a gratuitous promise and then enters upon its performance in any manner has a duty to exercise reasonable care. i. 1. Any man that undertakes a duty and is negligent, is liable for the goods that are lost or damaged while under his care ii. 2. Failure to exercise reasonable care is misfeasance and is a sufficient basis for tort liability. iii. Coggs v. Bernard: D moved brandy owned by P, Through Ds negligence some was a lot of brandy was lost. 1) Rule: If someone voluntarily takes an obligation on themselves, they are liable for any damage caused by their negligence. 2) RST3d 42 a iv. It does not take much to undertake- just begin performance. If never acted then there would be no duty. v. Can undertake something without communication- lawnmower hypo

False Imprisonment-

actor intends to confine another in an enclosed space resulting in total and involuntary confinement of another

Battery

an actor intends harmful or offensive contact, and harmful/offensive contact does occure rule- a person is held liable for battery if he has acted with intent to inflict a harmful or offensive contact or offensive contact directly or indirectly occurs

Intent

intent to contact or substantial certainty the contact will occur

Informed Consent

i. (1) Non-disclosure of risk; (2) Injury; (3) Causal Relationship between (1) & (2). 1) Non-disclosure of risk: a) General rule: A doctor proposing a course of treatment or a surgical procedure has a duty to provide the patient with enough information about its risks to enable the patient to make an informed consent to the treatment. If an undisclosed risk was serious enough that a reasonable person in the patient's position would have withheld consent to the treatment, the doctor has breached this duty. b) Causal relationship between a physician's duty to disclose & the resulting injury i) Existence of a causal relationship: A causal connection exists when, but only when, disclosure of significant risks incidental to treatment would have resulted in a decision against it. 1)) Objective test: "in terms of what a RPP in the patient's position would have decided if suitably informed of all perils bearing significance" c) In informed consent- this is essentially the reasonable physician i) Main justifications- without all information can you give true consent, respect Ps right to self determination- general consent is not enough ii) What makes a risk reasonable/material? a risk is thus material when a reasonable person, in knowing what the physician knowns or should know to be the patient's position, would be likely to attach significance to the risk or cluster of risk in deciding whether or not to forego the proposed therapy. iii) What must be disclosed: 1)) 1. What is the nature of the treatment? 2)) 2. What is the risk of the treatment? 3)) 3. What are the feasible alternatives? 4)) 4. What are the consequences of non-treatment? iv) Exceptions to the general rule: 1)) (1) (emergency) when patient is unconscious and incapable of consenting, and harm from a failure to treat is imminent and outweighs any harm threatened by the proposed treatment. 2)) (2) risk-disclosure poses such a threat of detriment (i.e severe emotional harm) to the patient as to become unfeasible from a medical point of view. d) Canterbury v. Spence: D failed to tell P about the risk of paralysis associated with his surgery, P fell out of bed after surgery & became paralyzed. D was negligent in failing to tell P of the minimal risk. i) Rule: It was a matter of the physician's duty to disclose all information regarding the surgery, including the minimal risks, so that the patient could make an informed decision. ii) There must be nondisclosure, there must be physical harm from the risks that patients was not informed it and there must be cause in fact that the patient would not have gone through the with surgery if they had known the facts or a RPP. iii) Court rejected custom here iv) A jury can decide informed consent because it is a nontechnical issue- a layperson can decide what information they would want to know. 1)) Reverts back to reasonable care standard e) Bly v. Rhodes-Some jurisdicitions i) Conversely- expert testimony is needed to show what info is required f) Currently limited to physical injuries g) Examples- 10% of risk of injury A but gets injury B- No recovery- has to suffer specific injury. Can be super low risk depending on the severity of the possible injury.

Rescuer's Doctrine

i. A rescuer is not a superseding cause 1) An emergency invites rescue, because there is a duty owed to the rescuer it negates any defense of assumption of risk (that the rescuer took on the risk themselves so they cannot complain). If the rescuer acted in reasonable care, mere contributory negligence of the P will not defeat the duty unless he was reckless. 2) To achieve rescuer status one must demonstrate: a) The D was negligent to the person rescued and such negligence caused the peril of that person b) The peril was imminent c) A RPP would have concluded such peril existed d) The rescuer acted with reasonable care & in reasonable time 3) Wagner v. Int'l Ry.: P (decedent) was on a crowded train traveling over a bridge when his cousin was thrown out of the train. P went to look for him on the tracks potentially as a result of the encouragement by D, he then slipped and fell. a) Rule: A tortfeasor is liable to all those who are injured in a reasonable rescue attempt. A tortfeasor will not be held liable for injuries suffered by a rescuer if the rescue efforts were unreasonable. b) If D puts someone in harms way they need to foresee that someone will try to rescue them i) Rescuer is foreseeable as a matter of law

Defenses of False Imprisonment Consent

i. Accept conditions of your imprisonment ii. Herd v. Weardale Steel 1) Facts- Miner claimed imprisonment for not being taken to surface- 30 minute delay for mineshaft elevator 2) Was this false imprisonment 3) Result- No 30 minute delay was not imprisonment- workers chose to go to the bottom of the mine under these accepted conditions

Defenses of False Imprisonment Accident

i. Accidental confinement- lock someone in a freezer on accident- no false imprisonment ii. There has to be intent

Duty Andrews View

i. Andrew's View:-A duty to one is a duty to all- If there is a foreseeable risk of danger to anyone, the duty is owed to everyone, (general view) 1) The duty to exercise care is owed to all. If the Ds conduct unreasonably creates a risk of harm to others, it is negligent. One is liable for the consequences of that negligence, foreseeable or not.

a. Unreasonable- WAS THE RISK UNREASONABLE?

i. Balancing test: cost-benefit analysis — used to determine unreasonable risk of harm ii. Unreasonable risk of harm: Generally, a P must show that D's conduct imposed an unreasonable risk of harm on P (or on a class of persons to whom P is a member) iii. Learned Hand's Balancing Test: if the Probability that the risk occurs multiplied by the Gravity of the loss - 1) Is MORE than the Burden of precautions against such a risk then D is negligent 2) Is LESS than the Burden of precautions against such a risk then D is not negligent 3) United States v. Carroll Towing Co: Ps employees were tasked with watching a barge but went ashore instead, Ds employees were attempting to get another barge out of the same harbor, they ended up knocking loose Ps barge which got sent down the river and hit another boat and sank. D brought defense of contributory negligence a) Rule: The hand formula - Probability (med) x gravity (high) > burden (low - should have been on the boat during working hours & busy time. b) Also- burden of adequate precautions- difficulty of remedial measures 4) Bolton v. Stone: An appeal from the lower court case stated above, test to be applied here is whether the risk of damage to a person was so small that a reasonable man in the position of the appellants (considering the matter from a point of safety) would have thought it right to refrain from taking steps to prevent the danger. Court comes back and says that this is too rare a thing for anyone to guard against, balancing the factors. Balancing unreasonable probability and gravity. 5) Osborne v. Montgomery: Balancing interest where the value of an actors conduct can be weighed with societal conduct. Social utility - the utility of an act may out weight the risks (E.g. a fire truck driving at a high rate of speed to get to a dangerous fire) 6) Hand Formula a) Breakout i) B-Burden, P- Probability of Harm, L- Gravity (Severity) of Injury ii) B<PL: you owe a duty iii) B>PL: you do not owe a duty b) Some ssues with hand formula i) Informational problems- hard to predict probability and gravitiy of injury, some injuries may not be monetized, conflict with common sense- should I be doing a cost benefit analysis for all activity, etc. c) Rarely given to jury- typically a court tool

a. Duty to Rescue Trespassers

i. Buch v. Amory Manufacturing: P (8yo boy), trespassed at Ds Mill, D told P to leave, P did not leave, P got his hand crushed in a machine. D not liable- no legal duty to act affirmatively to another- only a moral obligation 1) Rule: An owner of land owes a trespasser a duty to abstain from any other or further intentional or negligent acts of personal violence. Owners are not bound to warn trespassers of hidden or secret dangers 2) Other thoughts- · is this a case of pure nonfeasance? D did create danger by having and operating machinery · Machinery is part of /condition of the premises · If P damaged property- D could sue him for dmages b. Doctor/patient relationship: Many jurisdictions have adopted statutes absolving physicians/health professionals from liability for rendering emergency care unless they are grossly or willfully and wantonly negligent i. Hurley v. Eddingfield: D was very ill, sent for P (his family doctor) to come to his aid, D refused to do so for no reason. 1) Rule: Licensed doctors are not obligated to accept all patients who are in dire need of medical attention. There is no affirmative duty to be a good citizen and help others in peril if you have not caused their predicament.

Duty Cardozo's view

i. Cardozo View:-the foreseeable P- you are only liable for foreseeable risk to the particular plaintiff (the zone of danger - zone within the risk created by the D's negligence could operate on the plaintiff (limited view), depends whether the D has created a foreseeable risk to that person 1) Is there any foreseeable risk to this P? - for the purpose of finding whether this duty was owed 2) Negligence towards someone is not enough; there must be a breach of a duty toward the plaintiff and there is none unless harm to the plaintiff was foreseeable

a. Three Different Approaches that Courts have taken:

i. Classical Approach: some jurisdictions follow the traditional tripartite system which classifies the duties of the landowners with respect to whether the guest was an invitee, licensee, or a trespasser. ii. Modern Approach: Some jurisdictions make no distinction between the three categories and apply a rule of reasonable care under the circumstances to anyone on the landowner's property. iii. Invitee & Trespasser Modern Approach: some jurisdictions continue to treat trespassers as a distinct group but apply the rule of reasonable care under the circumstances to all other people who come onto the landowner's property.

Defenses of False Imprisonment Defense of Property

i. Confined if you have to remain to protect property from defendant's wrongful appropriations 1) Sindel v. New York Transit Authority a) Facts- Driver of bus had to protect property and abandon route to go to the police station due to rowdy kids and vandalization. Technically imprisoned kids b) Was this false imprisonment c) Ruling- Imprisonment was reasonable to protect persons and property in care of. ii. Would be confined by taking control of someone's property 1) Giving up property for freedom of movement.

Natural Disasters:

i. Considered unforeseeable but not considered to be superseding causes 1) Rst. 3d. § 34 Intervening Acts and Superseding Causes: When a force of nature or an independent act is also a factual cause of harm, an actor's liability is limited to those harms that result from the risks that made the actor's conduct tortious. 2) Limits that may break the chain of causation, something very unforeseeable like a terrorist attack or an unforeseen storm.

Custom

i. Custom: regular usage or way of doing specific things amongst a group of people, a practice of some sort, way of doing certain things, must be widespread, does not need to be unanimous, may be introduced to establish evidence of a standard of care, this is not conclusive. 1) Takes away uncertainty in balancing test and reflects experience and judgment of many 2) Cautions jury that if they find negligent then they are potentially finding a whole industry negligent 3) Conformity with custom is not a complete defense- just evidence either way ii. Evidentiary weight of custom: custom is used as evidence that the defendant is negligent when the defendant does not comply with custom; custom is used as evidence that D was not negligent when D complies with custom. iii. The TJ Hooper: D lost two barges & Ps cargo of coal in a bad storm. The captains did not know there was a storm coming bc the barges were not equipped with radios. Ps tried to establish that it was custom for tug owners to supply radios. TC said there was a custom, on appeal the court said that there was not a custom but , "there are precautions so imperative that even their universal disregard will not excuse their omission". So D was still found liable. 1) Rule: If the utility of a safety precaution outweighs the cost of the precaution, then it is negligent not to carry the safety precaution. An industry's general custom does not dictate the standard of care; the courts decide what is required of the parties.

Overseas Tankship Ltd. V. Morts Dock & Eng. Co. (Wagon Mound #1):

i. D discharge oil in a harbor, oil came by Ps boat, two days later debris caught on fire and landed in the oil which ended up destroying Ps boat. Court said that there is know way that D could have known that the oil was flammable while on water. Discredited the Polemis rule. 1) Rule: D should only be liable for those resulting harms that were foreseeable to the reasonable person.

a. Foreseeability- (Majority View)

i. D is only liable for the harmful results that are the normal incidents (foreseeable) of and within the increased risk caused by his acts

Duty To Rescue Exceptions Defendant Created Danger

i. Duty Based on Prior Conduct Creating a Risk of Physical Harm: When an actor's prior conduct, even though not tortious, creates a continuing risk of physical harm of a type characteristic of the conduct, the actor has a duty to exercise reasonable care to prevent or minimize the harm ii. Montgomery v. National Convoy & Trucking Co.: Ds truck had stalled at the bottom of an icy hill, D had ample time to warn others of danger, failed to do so. P came down the hill, couldn't not stop in time, crashed into D. 1) Rule: One may be negligent by acts of omission as well as of commission, and liability will therefore attach if the act or omission to act owed to another is the direct, proximate and efficient cause of injury. 2) D's conduct created the continuing risk of physical harm- not pure nonfeasance iii. Another example- failure to brake and hit someone- argue omit to hit brakes? 1) There is duty here because it is an affirmative action(driving) with a failure to do something

Attractive Nuisance

i. Duty to owe reasonable care to eliminate damage or otherwise protect children 1) Why children get breack a) Compassion towards b) Too immature to appreciate danger ii. the attractive nuisance doctrine allows infant trespassers to recover when lured onto the defendant's premises by some attractive condition created and maintained by the defendant, such as railway turntables, explosives, electrical conduits, smoldering fires, rickety structures, and the like. iii. Caveat: exposure to liability under the doctrine, however, is not unlimited, case law has not extended it to cover rivers, creeks, ponds, wagons, axes, woodpiles, haystacks, and the like. iv. § 339 Artificial Conditions Highly Dangerous to Trespassing Children: A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if: 1) (a) the place where the condition exists is one upon which the possessor knows or has reason to know(having info. That a person of ordinary intelligence could gather that this fact exists) that children are likely to trespass, and (no duty to investigate) a) Some courts have called this foreseeability 2) (b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and a) Did possessor create condition? 3) (c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and 4) (d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and (hand formula) 5) (e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children. b. Elements of Custodial Relationships here §30 c. Treating Invitees and Licensees as 1 i. Licensees Invitees- Duty to warn of known conditions or if warning does not suffice- may need to remedy the situation

Allen v. Hannaford

i. Facts- woman had unloaded gun and threatened those trying to move furniture ii. Issue- Can it be assault if the person is incapable (unloaded gun) of carrying out threatened battery? iii. Results- Doesn't matter if capable of completing battery- depends more on apprehension created in mind of assaulted person. If victim does not know gun is loaded and apprehension is present - assault 1) Interesting variants- if victim knows gun is not loaded- No assault. If they do not think it is loaded and it is loaded- no apprehension so no assault. Realistic toy gun- Apprehension present it is assault.

a. Extension of Person-

i. Fisher v. Carrousel 1) Facts- Black man at hotel for work conference- confronted by hotel employee- plate snatched from hands 2) Issue- what constitutes a touching? 3) Result- Battery occurred 4) Rule- Anything that is an extension of your person- anything that is attached to it or practically identified with it- all things in contact or connected with a) NOT just merely touching something

Res Ipsa Loquitur a. Exclusive Control Element

i. Function is to ensure that the injury was not caused by the negligent conduct of the plaintiff or the third party. ii. Larson v. St. Francis Hotel: P was injured when guests in Ds hotel threw an armchair out a window. It is assumed that the armchair came from one of the hotel room windows. RIL did not apply in this case because "a hotel does not have exclusive control, either actual or potential, of its furniture. Guests have at least partial control. It also cannot be said that if the hotel was using ordinary care, the accident was such that would not happen". 1) Rule: RIL does not apply unless the object that caused the accident is under the exclusive control of the defendant and under ordinary circumstances using ordinary care, the accident would not have happened. Hotel was not the most probable cause iii. Duty to act element from Rst: "The indicated negligence is within the scope of the D's duty to the P" 1) Connolly v. Nicollet Hotel: P was also hit by a chair that came out of a hotel room window, but the differnce in this case was that the hotel was warned that their guests were going to be rowdy so they should have taken extra care to make sure that no one was hurt. Therefore, the hotel did have exclusive control of what was going on. a) Rule: The law does not require every fact and circumstance which make up a case of negligence to be proved by direct and positive evidence; circumstantial evidence alone may authorize a finding of negligence. iv. Not to be taken literally: A P can prove D was in exclusive control if there are multiple Ds in a case by showing that the D with the non-delegable duty to care for the instrumentality has exclusive control over it (see Colmenares vivas v. Sun Alliance Insurance Co). v. Colmenares Viva v. Sun Alliance Insurance Co.: P was on an escalator at the airport, escalator handrail stopped moving and P lost their balance and fell down the stairs. Elements were met of RIL were met bc handrails don't just stop moving absent of negligence, D had exclusive control and there was no evidence that P contributed to their fall. D tried to argue that their maintenance was responsible but court said no. 1) Rule: The authority in control of a public area has a nondelegable duty to maintain its facilities in a safe condition. 2) Dissent said that the court does not have enough expertise to say that a complicated piece of machinery like an escalator malfunctions bc of negligence. 3) Other things to consider- a) What if both stairs and rail stopped- No RIL- could have been non negligent cause- for instance- an emergency stop i) Holhauer v. Saks vi. Miles v. St Regis Paper- Decedent crushed to death by a load of logs that fell off D's while he was releasing one of its binders- couldn't sue his employer. The railroad company was found to be in control of the trail and the logs- hand on the button to move. Railroad found liable. 1) Chain of custody- not shared control- instrumentality can exchange hands a # of times b. Sinking Boats: i. Walston v. Lambersten: Ps husband drowned while a following an accident on the sea, P claimed that D's construction on the boat caused her husband to drown. Court rejected that claim stating that the sea itself contains many hazards, therefore they would not be able to say that the defendant's negligence was the sole cause.

a. Indirect contact-

i. Garrett v. Dailey- little boy pulls chair- old woman falls and contacts ground ii. Poison in milk constitutes contact iii. Laser example- court has found contact when physical manifestation of result of touching- stinging in eye could indicate physical contact- controversial however

Defenses of False Imprisonment Reasonable Means of Escape

i. If you can escape reasonably/safely- there is no imprisonment 1) Athlete locked in first floor room with window- safe escape no imprisonment 2) Athlete locked in room on 5th floor with window- not safe- imprisonment

Transferred Intent

i. Intend to hit one person and hit a nearby person ii. A intends to hit B but unintentionally hits C- A is liable because intent transfers

Single Intent

i. Intent to make contact

Duty Owed to Landlords/Tenants

i. Kline v. 1500 MA Ave.: P sustained injuries when she was criminally assaulted and robbed by an intruder in the apartment's common hallway, P had warned her landlord several times and there were other instances of this. Security measures declined overtime. 1) Rule: Landlords have a duty to take steps to protect tenants from foreseeable criminal acts committed by third parties in common areas of landlord's property, Limited to foreseeable criminal acts in common areas 2) Landlord required to take reasonable care in the circumstances to remedy- typically a jury question- could have been like security measures to what was present when P moved in. 3) §315(b) protective relationship applies here. a) Why- less powerful party submits control to the other- given up power of control- landlord controlled the common areas and is better equipped to control 4) Dissent questioned how do we know if it was an intruder- causation issue 5) The relationship depends on the foreseeability of harm, issue for the court to decide

Exceptions Trespasser

i. Known (discovered trespassers): When the presence of the trespasser has actually been discovered by the owner, a duty arises (a) not to injure the trespasser by one's negligent acts, and (b) to warn the trespasser of non-obvious artificial, highly dangerous conditions. 1) Active operations - highly dangerous conditions a) § 338 Controllable Forces Dangerous to Known Trespassers: A possessor of land who is in immediate control of a force, and knows or has reason to know of the presence of trespassers in dangerous proximity to it, is subject to liability for physical harm thereby caused to them by his failure to exercise reasonable care i) (a) so to control the force as to prevent it from doing harm to them, or ii) (b) to give a warning which is reasonably adequate to enable them to protect themselves ii. Frequent trespassers: (constant trespasser): Where the owner knows that trespassers frequently (or constantly or habitually) come on the land in large numbers, entering it at a particular point and crossing a limited area, the same duties as in para. 3 above arise. 1) If RR workers cross the same area every day, the RR would have the duty to take reasonable care by avoiding harm with an active action 2) Duty owed these trespassers is the same as owed to licensees, conduct duty and warn of concealed conditions 3) Excelisor Wire Rope Co. v. Callan: where Ds workers knew that their dangerous work area was always "swarming" with children from an adjacent park, they have a duty to check the machines to make sure the kids are not in harms way bc it happens so frequently 4) Duty is one of reasonable care only, usually a warning is enough of the dangerous care 5) Frequent Trespasser Limited Area?

a. Judge & Jury: Who is negligence an issue for when a statute is involved?

i. Negligence is an issue for the jury when it may be shown that, even though D broke the law, he did not think dangerous consequences would result. ii. Role of Judge v. jury: Judges control the jury's discretion by controlling (1) which embody the relevant principles of law and (2) the courts power to keep certain questions of fact from the jury. Jury instructions state the relevant principals of law, court decides whether there is sufficient evidence to make a case out to the jury (on the facts of the case). 1) Judge determines whether the plaintiff falls within the class of persons protected by the statute and also determines whether the plaintiff's injury falls within the class of injuries addressed by the statute. 2) Jury determines whether there was a duty to use care 3) Duty is decided by the judge, foreseeability by the jury. iii. Rules made by judges: 1) The breach issue is usually reserved for the jury, but on a motion for a summary judgment a court may decide the issue by holding that no reasonable jury could find in favor of the nonmoving party. Each time a court makes a breach decision as a matter of law, it create a rule regarding what conduct is reasonable or unreasonable in a given set of facts. Some Courts find this attractive in light of the collective experience the court gains over many trials regarding norms of conduct. 2) Standard application of due care: If the rationale for ruling that particular behavior was or was not negligent as a matter of law is broadly applicable, then the decision in effect creates a rule of law about the conduct. iv. Holmes: Juries are often unpredictable, judges are predictable in the way that the decide cases, they have a lot of experience with similar cases and therefore are able to predict what the outcome and reaction would be based on the similar facts. Here he is basically saying that they can decide like cases alike but juries are often unpredictable. v. Baltimore & Ohio R.R. v. Goodman: P was driving and approached train tracks at low speed, P did not have a good view of the train and he was struck and killed. J. Holmes said that P was contributorily negligent for failing to "stop, look and listen". 1) Rule: The question of due care is generally left to the jury. When the standard is clear, the court should make the decision. However, "when the standard is clear, the Courts should lay it down once and for all." vi. Pokora v. Wabash Ry.: P stopped at RR crossing, tried to stop, look and listen, his view was blocked by the main track, he went over the track and was hit and killed by D. J. Cardozo overruled the precedent set in Baltimore. Stating that Getting out of his car to check for a train may be more dangerous than just going over the track alert and by the time he gets back to the car, a train could have appeared 1) Rule: To get out of a vehicle is uncommon precaution, as everyday experience informs us. The actions of a plaintiff depend on the situation and the circumstances, and it is up to the jury to decide whether a particular course of action was reasonable. vii. Jewell v. CSX Transportation Inc.- P could not recover when they were traveling on an extra hazardous intersection- Extra hazardous test is whether there is a "real and substantial" obstruction to sight or hearing and requires an actual physical inability to see or hear

Exclusive Control Commercial Airplanes

i. Newing v. Cheatham: P was killed in a plane crash that seemed to be caused by the plane running out of gas. Found beer by plane and assumed that the pilot was drinking and failed to fill up the plane. RIL was applied & P was entitled to a directed verdict bc the Ps circumstantial proof was so convincing (D had alcohol on his breath, empty beer cans were found, it was a clear day, there was not any technical problems with the plane) and Ds response was so weak that the inference of D's negligence was inescapable. 1) Rule: there is no evidence of any negligence, incompetence or other defect in the planning and construction of the vessel or in any changes subsequent thereto to establish that it was unseaworthy at the time of departure on its last voyage. 2) PARADOX- The safer an activity is the more likely res ipsa can be applie

Offensive

i. Objective test- offensive to a reasonable sense of personal dignity 1) Who decides- jury/trier of fact- get community input 2) What should trial consider- relationship between parties, location, motive, nature of contact 3) Does this extend to people with certain idiosyncratic exceptions- left to the courts ii. Contact must be unwarranted by the social usages prevalent at the time and place of inflicted contact

Licensee

i. One who enters or remains on the land of another with the consent ("leave or license"), express or implied, of the owner or under a legal privilege. 1) Duty: (traditionally) the landowner has no duty to ensure that the premises are safe, but he does have a duty not to create a trap or allow a concealed danger to exist on the premises, which is not apparent to the visitor, but which is known, or ought to be known by the occupier. a) 2) License can be implied by: a) (1) where the owner sees someone come on the land, whether for the first time or not, and despite opposing that person's presence, does or says nothing to indicate that opposition. Silence may imply consent when it "would be understood by a reasonable person as intended to indicate consent and it is so understood by the other." (Rest. 2d §892, Comm. c) b) (2) where the owner virtually ignores the presence of habitual (frequent) intruders of whom he has knowledge 3) Social guests, fire fighters & police (they are looking after the premise, there cannot be preparation for their visit)

Trespasser

i. One who enters or remains on the land of another without the consent, express or implied, of the owner or without other privilege to do so. 1) Duty: (YES THERE IS A DUTY) - There is a duty not to injure trespassers intentionally or recklessly. Duty to refrain from wanton and willful misconduct.

Duty Owed to Store/Customer

i. Posecai v. Walmart: P went to Ds store, when she came back to her car she was robbed at gun point, not a high frequency of crime in this area. Applying a balancing test to the facts, with the foreseeability and gravity of harm on Ds property was slight, therefore D owed no duty to protect P from the criminal acts of third parties under the facts and circumstances of this case. 1) Rule - Balancing Test: seeks to address the interests of both business proprietors and their customers by balancing the foreseeability of harm against the burden of imposing a duty to protect against the criminal acts of third persons a) Greater the foreseeability and gravity of the harm = greater the duty of care (vice versa) b) Factors: The most important factor to be considered is the existence, frequency and similarity of prior incidents of crime on the premises, but the location, nature and condition of the property should also be taken into account c) *Court adopts this test* as opposed to i) Specific harm rule- specific imminent harm is known ii) Prior similar incidents test- evidence of crime on/near premises- includes nature and extent of previous, recency, frequency, similarity iii) Totality of Circumstances- adds location, nature, and condidtion of property and the level of crime in the surrounding area 2) Some rejection of posecai because duty is determined by the court- foreseeability is typically a jury issue. a) AW v. Lancaster example- from notes-intruder goes into grammar school and sexually assaults young child. objection to foreseeability- it is very fact specific and should be left to jury b. § 41 Duty to Third Parties Based on Special Relationship with Person Posing Risks i. (a) An actor in a special relationship with another owes a duty of reasonable care to third parties with regard to risks posed by the other that arise within the scope of the relationship. ii. (b) Special relationships giving rise to the duty provided in Subsection (a) include: 1) (1) a parent with dependent children, 2) (2) a custodian with those in its custody, 3) (3) an employer with employees when the employment facilitates the employee's causing harm to third parties, and 4) (4) a mental-health professional with patients. iii. Tarsoff v. Regents: Patient tells psychologist that he wants to kill P's daughter. Patient had previous "relationship" with daughter. Psychologist reports incident to police(who interview and release patient), but does nothing else. Patient kills P's daughter and P brings wrongful death claim against University. Held, a therapist (or other individual) who has determined, or under applicable professional standards reasonably should have determined, that a patient poses a serious danger of violence to others, he bears a duty to exercise reasonable care to protect the foreseeable victim of danger. 1) RULE: Psychotherapists have a duty to warn the SPECIFIC/foreseeable victim if a threat is made by one of their patients (see Rest.2d §315(a)) 2) Why create this duty? a) Therapists are in the best position to know of the seriousness of threat b) May have some kind of control over their patients c) Public safety interest- but what about confidentiality 3) Other concerns- a) Therapsits could overpredict and would lead to loss of trust in treatment and interfere with treatment b) Standard of care- typical medical standard- no standard that would allow us to predict more accurately i) Not a question of if they should have predicted in this case- they did predict so they had a duty. 4) Public policy issue: Doctors must balance the Doctor/patient privilege of confidentiality with the public policy of ensuring safety for members of society - Dissent in Tarasoff 5) Some states have restricted- for instance by placing saying that therapists need to make reasonable efforts to warn victims and law enforcement 6) IN Ohio- applies to individuals license to provide mental services- and there has to be an explicit threat of inflicting harm against a clearly identified victim

a. Statute- Can be adopted as standard of care

i. Private rights of action based on negligence (1) violation of a statute (2) issue of causation i. Overview 1) Adoption of a statute may set the standard of reasonable care 2) Rationale: a) All members of society have a duty to obey laws and regulations b) Laws and regulations were enacted to protect particular interests or classes or people. When a person violates a criminal statute or an administrative regulation, then they are acting in a way that disregards those protections. c) Respect for legislature, practicality (i.e legislature is more effective in establishing consistent rules), public relies on statutory commands being observed. 3) Negligence cases can be brought under statutes in two ways: a) 1. Statutes that expressly give a private cause of action by violation of the statute b) 2. Court adopts the standard of safety set by a statute (negligence per se) 4) When standard of conduct defined by legislation will be adopted: The court may adopt, as the standard of conduct of a reasonable man, the requirements of a legislative enactment whose purpose is to protect: (§286) a) a class of persons which includes the one whose interest is invaded, and i) P must be a member of the class of persons whom the statute was designed to protect. ii) Ex. A statute that says its purpose is to "protect every working man" from failing down an elevator shaft. If a pizza man fails down the elevator shaft while on the job, he is in that class. However, if a sales man falls down the shaft while he goes to visits his wife on a pleasantry visit, he is not covered b) the particular interest which is invaded, and c) that interest against the kind of harm which has resulted, and i) the statute must have intended to protect against the particular kind of harm that P wishes to recover for. ii) Gorris v. Scott: D fails to pen up Ps sheep on a boat, as a result of that the sheep fall off the boat. There is a statute that says sheep are supposed to be penned up but the purpose of that is to protect against disease not the sheep falling off the boat. 1)) If statute does not set the standard of care negligence could still have been possible d) that interest against the particular hazard from which the harm results 5) Party Seeking to Employ a Statutory Violation Must Prove: a) that he was in the class the statute was intended to protect, (court decides) b) suffered the type of harm the statute was intended to prevent, and (court decides) c) that the violation caused the injury. (Jury Issue) 6) Dual Purpose/multipurpose: a) A statute may protect against more than one class of injuries or class of injured persons b) Stimpson v. Wellington Service Corp.,: D drove a 137ton rig without a permit (permit intended to protect road-ways from heavy trucks); the rig damaged a building; court held the statute had a dual purpose: The primary purpose of the statute was to protect the roadways themselves from injury from overloaded vehicles AND protect against injury to property. 7) Violation of Licensing Statutes a) the lack of a required license is neither negligence per se, nor evidence of negligence, unless the evidence indicates that the defendant has also violated the "substantive safety measures enforced by the licensing requirement", that they did not use the same degree of skill as a licensed person would have b) Brown v. Shyne: D chiropractor had not obtained a medical license, P claimed to be hurt by D's treatments. Court held that the licensing statute could not be used to prove negligence, because acquiring or failing to acquire a license was irrelevant to the question whether the practitioner possessed and used the requisite degree of skill and learning. Statute was designed to protect against unskilled doctors. P would have to prove that D had no acted with adequate skill. c) Caveat: if a person operates a vehicle in a way that suggests a lack of skill, and the person does not have a license because he or she failed a test that assesses skill, then the lack of the license may be negligence per se or evidence of negligence, depending on the jurisdiction's rules 8) Issues of Proximate Cause (P's injury cause both by D's violation & 3rd party) Looks at the three factor test to decide - a) Vesely v. Sager: (Dram Shop Statutes) D served a guest alcohol at a bar, the guest drove drunk and injured P. Held that P could recover bc D was a substantial factor in causing the injury, D is not relieved bc of the acts of a third party if such as was reasonably foreseeable. [do not use substantial factor on the test] b) Coulter v. Superior Court: D served alcohol to a guest at house party, that guest injured P, who D knew was intoxicated and intended to drive. c) Ross v. Hartman: D left the keys in his car with his car running, a thief stole the car and injured P. Statute said you cannot leave your car running. D held liable, acts of thief were not superseding i) Class to be protected- pedestrians/other drivers ii) Harm- automobile accidents d) If a case passes the three factor test, the court still has the ability to determine the intent of the legislature, so passing the test is not always negligence per se ii. Majority View - Statutory Violation as Negligence Per Se 1) the violation of a relevant statute, whether by defendant or plaintiff, is "negligence per se"--negligence as a matter of law 2) Negligence per se: (as a matter of law) An act is considered negligent simply because it violates the statute. A factual conclusion (there was negligence) that the law requires the trier of fact to draw and which may not be rebutted by general evidence of reasonable care ("conclusive evidence" of negligence) a) Rest. §14 Statutory violations are negligence per se: An actor is negligent if, without excuse, the actor violates a statute that is designed to protect against the type of accident the actor's conduct causes, and if the accident victim is within the class of persons the statute is designed to protect. b) Subsequently enacted statutes CANNOT be used for negligence per se, but they can be submitted as evidence in the negligence determination 3) Caveat: Some jurisdictions that treat violations of statutes (i.e., laws passed by state legislatures) as negligence per se treat violations of administrative regulations or local ordinances as merely some evidence (an inference) of negligence, which the jury may accept or reject. 4) Martin v. Herzog: D was driving with their lights off, got into an accident with P and killed them. Statute said you had to drive with your lights on. However, it was not deemed negligence itself bc A D who travels w/o lights on is not liable unless the absence of lights is the cause of the damage. A P who does that does not forfeit their rights to damages unless it is at least a contributing factor. a) On appeal AC (Cardozo) said the action was negligence itself- jury does not get to decide 5) A violation of a statute is excused when: a) The violation is reasonable because of the actor's incapacity b) The actor neither knows or should know of the occasion for compliance c) Actor is unable after reasonable after reasonable diligence or care to comply d) Actor is confronted by an emergency not due to his own misconduct; e) Compliance would involve a greater risk of harm to the actor or to other iii. Minority View - Statutory Violation as Prima Facie Negligence 1) courts treat the violation as creating only a presumption of negligence (prima facie negligence) or merely an inference of negligence (some evidence of negligence). 2) Osborne v. McMasters: P bought medicine from D that was actually poison and was not properly labeled. There was a statute that said you had to properly label poisons. The statute didn't necessarily state a statutory cause of action- used as the standard of care then. a) Rule: Where a statue imposes upon any person a specific duty for the protection or benefit of others, if he neglects to perform that duty, he is liable. b) Three (possible) functions of a statute in a torts action: i) (1) it can create a private right of action, indv. Injured by a violation of a statute can sue the offender, ii) (2) in that case the court can adopt negligence per se - the statute becomes the standard of care so the Ds violation is by definition, negligent, iii) (3) even if the Ds action does not constitute negligence per se, P can still argue that the conduct was negligent. (§14 comm. F)

Modern Approach (Abolition of Categories)

i. Rowland v. Christian: D invited P to her house as a social guest, while P was using the bathroom, the handle on the water faucet broke and severed the nerves and tendons of his right hand. D knew of the crack, had asked her landlord to repair it but did not warn P of the crack. The court takes away that status having a bearing on the duty, just says that reasonable care is owed to everyone that comes on the land 1) Favors a single standard of reasonable care owed to all entrants on the land of the owner or occupier. 2) The proper test to be applied to the liability of the possessor of land is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others, and, although the plaintiff's status as a trespasser, licensee, or invitee may in the light of the facts giving rise to such status have some bearing on the question of liability, the status is not determinative. 3) Factors used to determine if a duty of care is owed: a) foreseeability of harm to the plaintiff, b) the degree of certainty that the plaintiff suffered injury, c) the closeness of the connection between the defendant's conduct and the injury suffered, d) the moral blame attached to the defendant's conduct, e) the policy of preventing future harm, f) the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability g) for breach, and the availability, cost, and prevalence of insurance for the risk involved 4) Why did court rule this way a) Prevent confusion in the courts, old three categories no longer needed, morally- the value of ones life does not turn on them being an invitee, licensee, or trespasser

Wagon Mound #2:

i. Same scenario except this time D had reason to know that harm would occur from the act of releasing oil into the harbor and there was a statute against doing so. Not just enough that the risk should be foreseeable but the risk that is foreseeable must be a negligent risk 1) Rule: Tortfeasors are liable for injuries that are (from their own perspective) possible and therefore reasonably foreseeable consequences of their negligence

Foreseeability & Harm within the risk

i. The Unforeseeable P 1) Marshall v. Nugent: Truck #1 cut around a corner, pushed Ps car off of the road. P went to warn oncoming traffic of the road block, driver #2 came up the hill and ended up injuring P bc it could not get out of the way with the cars blocking the other side of the road. Court found that D #1 was the proximate cause of Ps injuries. a) Rule: Any extra risk created by a negligent act is the proximate cause of Ps injuries if it reasonably foreseeable b) Scope: The view point of a common man, as to whether the causal relation between the negligent act and the plaintiff's harm which in fact was a consequence of the tortious act is sufficiently close to make it just and expedient to hold the defendant answerable in damage i) The further you get from the accident and how likely the risk was the further you get from getting the issue to the jury c) Courts said the extra risks created by the accident were not over/settled. The risk was in the harm with in the risks. Bundle of risks d) Here P could reasonably be expected to get out and help with precautionary efforts- hence liability e) Accidents happening long after the risks have settled- for instance an accident 5 miles down the road would not be a harm within the risks. 2) Union Pump co. v. Albritton- pump catches fire presumable due to manfucturer's negligence. Workers walked over pipe rack knowing it was not safe a) What is the risk from the pump- getting burned or property damage b) Walking away after the fire had been put out and falling and being injured was not a harm within the risk- the situation was settled/over

Res Ipsa Loquiter-a. Prosser's elements: (decided by jury if they are met)

i. The event must be of a kind which ordinarily does not occur in the absence of someone's negligence 1) proven only if the most probable explanation for the accident is negligence. More probable than not. ii. It must be caused by an agency or instrumentality within the exclusive control of the defendant iii. Requires plaintiff to prove that the defendant, more probably than not, caused the harm to the plaintiff iv. It must not have been due to any voluntary action or contribution on the part of the plaintiff.

Traditional Tripartite Scheme

i. Trespasser: One who enters or remains on the land of another without the consent, express or implied, of the owner or without other privilege to do so. ii. Licensee: One who enters or remains on the land of another with the consent ("leave or license"), express or implied, of the owner or under a legal privilege iii. Addie v. Dumbreck: Ds (coal miners) operated a haulage system, used a cable to operate, the cable passed through a large wheel that was not visible and poorly protected. System was surrounded by a hedge, but there was gaps in it and people used it as a short cut. Workers warned children and adults but knew the warnings had little effect, they also had a no trespasser sign. P's son (4 y.o) was sitting on the wheel when it started moving, got caught and died. 1) The court treated the kid as a trespasser- no duty besides not intentionally or recklessly injuring. a) If licensee -would the wheel have been a trap? 2) Rule: Landowners are only liable to trespassers if they act willfully or wantonly of reasonable care and inflict harm on the trespasser. 3) A trespasser could turn into a licensee if the owner warns the trespasser once to stay off and then discontinues his warnings, this could create an implied licensee meaning the owner would have to warn the person of the known dangers, the owner must keep protesting. a) Doing nothing to enforce no trespassing signs. iv. Callen- Similar facts to Addie- Mine +pulley case 1) Distinguished from Addie- Despite kids being trespassers D intentionally started machine and it was known that there would be kids there(the area was always "swarming" with children)- reckless disregard/reckless act a) Reckless- actor knows of has reason to know that the risk of serious harm is substantially greater than negligence and the act is done regardless. v. Gould- p489- Boy falls out of a warped and cracked screen- was treated as reckless. There was a statutory duty. Static and passive conditions can be reckless- does not have to be an act. b. Test for Determining Invitee or Licensee i. Depends on the nature of the visit

1. Two different views: Foreseeability v. Direct Causation

i. Where the facts present an uninterrupted chain of events (absent of any external intervening force of any kind) from the time of the defendant's negligent act to the time of plaintiff's injury. Type of harm does not matter, it only matters that the harm resulted from the negligent conduct and there was no independent intervention. - Kind of a hindsight test ii. In Re Polemis & Furness, Withy & Co.: Ds workers knocked a plank down to the ships bottom and it started a fire bc of the chemicals fumes present, Ps ship was destroyed. It was negligent for the workers to knock over the plank, they could have reasonable foreseen that some harm would have came from that - it need not be the exact harm that occurred. 1) Rule: As a result of Ds negligence, D is liable for damages that he or she directly causes whether or not the type of harm is foreseeable. Direct result damages are not too remote. 2) Court was deciding whether a P could recover for unforeseeable types of harm that resulted from the D's negligence. Held that P could recover for an unforeseeable result (the ship fire) as long as that result was "directly" caused by the D's' negligence. I.E., not brought about by independent causes having no connection with the negligent act, except that they could not avoid its results.

a. Exclusive Control in Medicine

i. Ybarra v. Spangard: A multi-defendant suit, P sues the multiple parties bc he is not sure which one caused his injury. P had surgery, given anesthesia, woke up felt pain in his arm, got worse and he developed paralysis. P is having an issue proving exclusive control bc he was not conscious. Burden of proof placed on the D to prove that they did not cause the injury. 1) Rule: Where a plaintiff receives unusual injuries while unconscious and in the course of medical treatment, all those Ds who had any control over his body or the instrumentalities which might have caused the injuries may properly be called upon to meet the inference of negligence by giving an explanation of their conduct 2) Can have multiple D's 3) Element 1 is breezed by, Element 3 is easy- P was unconscious- in negligence normally have to prove who did it. P literally could not prove- could not charge with knowledge of who committed act. a) In this instance the people who would be in the best position are the D's i) Risk of the silent D- If no one speaks all could be held neglingent ii. Where the P has few or no facts about how the accident happened and the Ds control/instr. Or whatever caused the injury -> RIL 1) If P can establish exactly how the accident happened, NO RIL (bc there is nothing to infer) iii. Common Knowledge: Common place injury where any lay person could tell that there was negligence - (1) Injury to a health part of the body or (2) Injury to a part of the body that was not even close to the original site. 1) If it is not common knowledge, expert testimony is needed to say that bad outcome is likely due to negligence

Defenses for False Imprisonment Shopkeepers Privilege-Merchants Privilege

i. You can detain someone in a reasonable manner for a reasonable amount of time on reasonable grounds if believing someone is attempting larceny- based on instruction to jury 1) Objective- Reasonable Unreasonable- Profiling the person and confining (minority as example) 2) Subjective- As long as merchant believes- confinement is OK ii. 3 possible positions 1) D- Honest suspicion- not common 2) Court- honest and reasonable- valid grounds even if wrong 3) If mistaken and someone is not stolen- even if reasonable there would be no defense

Breach Physical Limitations

i. for instance the blind man 1) Standard becomes the reasonable prudent blind man in the circumstances 2) Why? a) Fairness- person literally can't come up to standard b) Distinct defect that all can recognize- won't confuse/trick/abuse jury 3) Fletcher v. Aberdeen a) Facts- Blind man falls into whole when the barricades to protect against were not replaced. Blind man was waking with cane and existence of hole was unknown b) Issue- did D discharge duty with errection of barricades? c) Ruling- City is charged with knowledge that people with impairments will use their streets- held to reasonable care standard. Affirmed decision for P. P 4) Person under physical disability is obliged to use the care which a reasonable person under the same or similar disability would exercise under the circumstances

Mental Capacity

i. generally speaking insane people held to RPP 1) Institutionalized a) Gould v. American Family Mutual Insurance- i) P was injured while taking care of institutionalized Patient does not have a duty of care to owe because caretaker is paid 2) Exception: Instance of Insanity/Hallucination a) Breunig v. American Family Insurance- i) Facts- P sues D for being struck by her car when she veered into center lane. D who had history of mental health issues- when driving had delusion- god took the wheel. Batman could fly so so could her car. ii) Issues- Is insanity a defense? Was D's hallucinations foreseeable/forewarning(if she did she was negligent)? iii) Rule- If D had no forewarning of delusions then she would not have been liable. Insanity is too broad and cannot be defense. BUT sudden mental incapacity should be treated like sudden physical incapacity. Court said jury could infer that she had forewarning. 1)) Why- can't take precautions against something you cannot foresee iv) Crafted an affirmative defense that courts have been very wary of v) Sudden mental incapacity is not under general rule of insanity 3) Fair?- how can insane person be held to the same standard as a reasonable person when they cannot reason. 4) Mental capacity is often held to RPP for D. But for P some jurisdictions do allow mental disability to be taken into account- to foster compensation

Invitee

i. someone who is on the land of the owner for some joint purpose 1) Public Invitee - a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public. a) Ex. Someone at a public park 2) Business Visitor - a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land. 3) Duty: (Traditionally) - 1. There is a duty to use reasonable care to inspect the land for dangerous conditions. 2. There is a duty to (a) use reasonable care not to injure the invitee by negligent activities, and (b) to warn the invitee of hidden dangerous conditions of which the owner knows or reasonably should know. 3. If a warning of an unreasonably dangerous condition will not suffice to protect the invitee, the owner may be required to take further precautions, including remedying the condition Ex. meter readers, trash collectors, letter carriers, sanitary and building inspectors

Res Ipsa Loquiter a. Rest. 2d. Elements:

i. the event is of a kind which ordinarily does not occur in the absence of negligence; ii. other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminatedby the evidence; and iii. the indicated negligence is within the scope of the defendant's duty to the plaintiff. b. Byrne v. Boadle: P was passing Ds business when a barrel fell out of the window and injured P. The barrel falling out of the window creates a prima facie case of negligence bc barrels do not fall out of windows without the negligence of someone. i. Rule: Establishes a presumption of evidence and it is up for the D to prove that it was not negligent. ii. The mere occurrence speaks for itself. It is the result of someone's negligence. Court is making a common sense inference. Circumstantial probability of negligence is very strong

Duty To Rescue Exceptions Preventing Aid

i. § 327 Negligently Preventing Assistance: One who knows or has reason to know that a third person is giving or is ready to give to another aid necessary to prevent physical harm to him, and negligently prevents or disables the third person from giving such aid, is subject to liability for physical harm caused to the other by the absence of the aid which he has prevented the third person from giving ii. Louisville & Nashville R.R. v. Scruggs: Ps house was on fire and fire trucks were attempting to get to it, Ds RR had stopped on tracks leading to Ps house and the workers were beings stubborn and wouldn't move the train. D did not have a duty to move their train even though Ps house was burning 1) Everyone has the right to the natural use and enjoyment of his own property, and if while in that lawful use, an unavoidable loss occurred to the adjoining landowner without negligence, no damage could have been awarded. 2) Pure nonfeasance case- no duty owed iii. Soldano v. O'Daniels: P(decedent) was in imminent danger of being shot, P asked D to use the bar's phone to make an emergency call, D would not let him and P died. D did not have to make the call himself but he was not allowed to negligently prevent him from placing the call himself. b. Once you have a duty you have to follow through with it

Ordinary Care

kind and degree of care, that the prudent and cautious man would use, required by circumstances of the case, such as to guard against probable damage.

Damages

physical injuries of persons or property

Assault

protection against failed battery

Dual Intent

protects the notion that some sort of fault needs to be present 1.) intent to make contact AND intent to offend/harm actor has to appreciate offensiveness of conduct

Proximate Cause

the scope of liability - how far the liability goes, **HAS NOTHING DO WITH CAUSATION!!**

Trespass(to land)

unauthorized intentional entry onto the land of another or leaving an object without permission on another's land-