Torts

Modified Negligence

(plaintiff "not as great as"/49% rule)-plaintiff's recovery is reduced by percentage of fault attributable to plaintiff as long as plaintiff's fault is not as great as defendant's. 1. If plaintiff's fault is equal to or greater tha n defendant's, plaintiff is completely barred from recovery. iii. Modified (plaintiff "not greater than"/50% rule)-plaintiff's recovery is reduced by percentage of fault attributable to plaintiff as long as plaintiff's fault is "not greater than" fault of defendant's. 1. If plaintiff's fault is greater than defendant's, plaintiff is completely barred from recovery.

Trespass to Chattel

1. When someone intentionally intermediate with property that is in procession to someone else and 2. Impairs the condition of quality of the property 3. Must prove the damages caused Ex: Glidden v. Szybrak Glidden sues Szybrak after dog bites Glidden's daughter. Glidden's daughter did not commit trespass to chattel when she pulled the dog's ears because the dog was not hurt or impaired by the situation. Plus, the daughter is too young to commit trespass to chattel. Computerserve Inc. v. Cyber Promotions- A person may be liable for trespass to chattel for interfering with the value of another's property via (spam.)

Strict Liability Tort

A civil wrong that occurs when a defendant takes an action that is inherently dangerous and cannot ever be undertaken safely, no matter what precautions the defendant takes. The defendant is liable for the plaintiff's damages without any requirement that the plaintiff prove that the defendant was negligent.

Garrett v. Dailey

A five-year-old may be held liable for battery if he possesses intention of offensive contact and knows person will fall down to the ground

Kelly v. Gwinnell

A host who serves alcohol to a guest, knowing that the guest is intoxicated and has to drive home, is liable for injury that the guest causes in the negligent operation of his vehicle thereafter when such negligence is caused by intoxication.

Collateral Source Rule

A legal doctrine that provides that the damages owed to a victim should not be reduced because the victim is entitled to recover money from other sources, such as an insurance policy.

Contributory Negligence

A rule in tort law, used in only a few states, that completely bars the plaintiff from recovering any damages if the damage suffered is partly the plaintiff's own fault.

Comparative Negligence

A theory in tort law under which the liability for injuries resulting from negligent acts is shared by all parties who were negligent (including the injured party), on the basis of each person's proportionate negligence. Example: A and B go hunting. They both shoot at a deer but end up shooting C in the stomach. A and B are liable. Non example: If A shot C on the ear, then both A and B would be held liable for where they shot C respectively.

Trespass to Land

A. Intentional or Reckless entry to land B. Without the permission or privilege to enter Airspace constitutes as one's land Ex: Herrin v. Sutherland Hunting on someone else's property constitutes as trespass even if one did not touch the person's land. He interfered with the airborne property. Rogers v. Board of Road Com'rs for Kent County A continuing trespass is committed if a structure remains on someone's land without having the permission of leaving it there any longer

Negligence examples and non examples

Ex. Lubitz v. Wells- In this case, Well's eleven-year-old son, through a golf club and it hit a little girl. Plaintiff sued Well's however, Well's is not liable. The golf club is designed for golf and not to hurt people. Negligence Ex: Pipher v. Parsel A) Duty: Parsel had the duty to be responsible. B) Breach: He failed to drop off bad passenger. C) Causation: Driving is dangerous so he had to be more cautious. D) Damages: Pipher was severely hurt after the car crash.

Res Ipsa Loquitur example case

Ex: McDougald was driving on the highway and Perry's tire came loose and crashed into the windshield of McDougald's car. There was no evidence needed. The mere fact of it happening is enough to prove negligence. Non ex: Larson v. St. Francis Hotel Larson was walking on the street and a falling armchair hit him on the head. Res Ipsa Loquitur could not be proven because a guest could have thrown it at him. Larson failed to show other evidence to make St. Francis hotel negligent.

Apportionment of Damages

General rule is that one injured by negligence of another is entitled to recover damages proximately caused by act of tortfeasor, and burden of proof is upon plaintiff to establish that damages he seeks were proximately caused by negligence of defendant. 1. It is one thing to hold tortfeasor who injures one suffering from pre-existing condition liable for entire damage when no apportionment between pre-existing condition and damage caused by defendant can be made, but it is quite another thing to say that tortfeasor is liable, not only for damage which he caused, but also for injuries subsequently suffered by injured person. a. Where independent concurring negligent acts have proximately caused injury and damage cannot be apportioned between tortfeasors, each tortfeasor is jointly and separately liable for all injury and damage. i. This rule is not applicable where second injury or aggravation of first injury is attributable to distinct intervening cause without which second injury or aggravation would not have occurred.

v. Rescue doctrine serves two functions:

a. It informs tortfeasor it is foreseeable rescuer will come to aid of person imperiled by tortfeasor's actions, and, therefore, tortfeasor owes rescuer duty similar to duty he owes person he imperils. b. Rescue doctrine negates presumption that rescuer assumed risk of injury when he knowingly undertook dangerous rescue, so long as he does not act rashly or recklessly. 1. To achieve rescuer status one must demonstrate: a. Defendant was negligent to person rescued and such negligence caused peril or appearance of peril to person rescued b. Peril or appearance of peril was imminent c. Reasonably prudent person would have concluded such peril or appearance of peril existed d. Rescuer acted with reasonable care in effectuating rescue 2. Rescue doctrine is not common law remedy. Rather, it is shorthand for idea that rescuers are to be anticipated and is reflection of societal value judgment that rescuers should not be barred from bringing suit for knowingly placing themselves in danger to undertake rescue. a. Rescue doctrine may be invoked in product liability actions just as it may in ordinary negligence actions. b. Rescuer, like any other plaintiff, must still show defendant proximately caused his injuries.

Three types of factual situations in which joint and several liability is imposed:

a. Tortfeasors acted in concert b. Defendants fail to perform common duty to plaintiff (vicarious liability/relationship-based liability/employer-employee) c. Defendants who acted independently to cause indivisible harm (death)

Tortfeasors Acting in Concert

a. When two or more tortfeasors act in concert and injure plaintiff, then each will be jointly and severally liable for entire injury. This is so even though injury is divisible and one could identify what each tortfeasor has done. i. Authorities reflect generally accepted rules of causation that all parties engaged in motor vehicle race on highway are wrongdoers acting in concert, and that each participant is liable for harm to third person arising from tortious conduct of other, because he has induced and encouraged tort.

Apprehension

a. Apprehension does NOT equal fear...fear is not required, but it can be evidence of apprehension b. Apprehension can be equated with awareness WHILE IT IS TAKING PLACE...no assault if plaintiff not aware OR aware after the fact (awareness of imminent assault can perceived by the senses: seeing someone coming at you; feeling gush of wind on your skin; etc.) ■ Examples of apprehension 1. Wimpy defendants can cause apprehension in a plaintiff, even if plaintiff not AFRAID, per se, of plaintiff Ex: Western Union Telegraph Co. v. Hill Hill sued Telegraph because employee was acting inappropriately. Telegraph (employer) cannot be held liable for employee's actions

Successive Tortfeasors

1) follows an initial injury and adds to or aggravates the existing injury (see intervening causes) 2) original tortfeasor may be liable for the added or aggrivated injury caused by the second tortfeasor when the second tortfeasor's negligence resulted from dependent intervening acts) (i.e. original tortfeasor will be liable for a medical mistake if not gross negligence)

False Imprisonment

1. Defendant intentionally confined against will 2. Plaintiff must be aware of confinement 3. No means of escape 4. unlawful Ex: Bigtown Nursing Home v. Newman -plaintiff 67-year-old is confined in nursing home against his will. Nursing home is liable of false imprisonment because there was no legal justification to retain him there. Parvi v. City of Kingston -Parvi was intoxicated when police took and relocated him to a golf course. However, he doesn't really recall much since he was intoxicated A victim cannot recover damages if doesn't recall when the confinement against his will took place.

Scope of Duty/Scope of Risk

"Was this P's injury in the scope of D's duty?" (1) Foreseeable risk and foreseeable P (2) Ease of association (3) Superseding and intervening causes (4) Pitre policy factors

Bailey v. CS.

4 yr. old kid struck babysitter in throat (act) & brought about consequence of crushing her larynx (consequence). Child can possess requisite intent for battery. voluntary intoxication Non examples child below "age of discernment" (here 2 yrs old) who bit 2 week old sleeping baby unable to discern the consequences of his actions

SINE QUA NON

A causal connection exists between a particular act and an injury when the injury would not have arisen but for the act. This is known as the but for rule or sine qua non rule.

Causation

A cause and effect relationship in which one variable controls the changes in another variable.

strict liability animals

*Trespassing animals* = SL for reasonably foreseeable harm caused by trespassing animals (other than household pets) *For personal injury* (invitees and licensees) *Domestic animals* - SL if D *knows* of animal's dangerous propensity *Wild animals* - SL *X = Trespassers* (have to prove negligence)

Continuous Tort

- no defined period of in which it occurred -certain type of torts that are continuous

Concurrent Causes

-Combined caused a tort -Each factor was a substantial factor -Both defendants are liable

interprise theory superior

-For action purposes- you are employee Employer has right to indemnity to go after employee 1. No money 2. insurance 3. waste of time

Palsgraf v. Long Island R.R.

-employee of defendant negligently aided passenger boarding train, causing passenger to drop package. Package contained fireworks and exploded, causing scale substantial distance away to fall upon plaintiff, injuring her. Is this woman foreseeable plaintiff? a. Cardozo-there's no duty of railroad to protect Palsgraf. Attendant was only responsible for individuals in foreseeable "zone of danger" based on reasonable person standard. i. Plaintiff can only recover if she can establish that reasonable person would have foreseen risk of injury to her in the circumstances, i.e., that she was located in foreseeable "zone of danger." b. Andrews-the railroad's act was negligent in rushing someone on train. Railroad is responsible for any and all injuries. i. Plaintiff may establish existence of duty extending from defendant to her by showing that defendant has breached duty he owed to anyone suffering injuries from incident. In short, defendant owes duty of care to anyone who suffers injuries as proximate result of his breach of duty to someone.

survival suite

-f injured they can claim compensation for damages -die of unrelated cause -pain and suffering -loss of medical expenses

Wrongful Death Damages

-household income -household services -training/instructions -consortion -comfort/support

Deviation of Negligence Duty of a plaintiff

-must prove malpractice with evidence -provide expert testimony -expert testimony must explain what the standard of care it Example: Moore v. Regents of the University of California A physician has the duty to disclose all material personal interests that may influence her professional judgement before securing a patient's informed consent to medical treatment.

Negligence

1. Duty 2. Breach 3. Causation 4. Damages All prongs have to be met.

Battery

1. Intend to cause bodily contact that is offensive or harmful 2. And having substantial certainty of outcome Ex: If any person uses violence against another, or inordinate manner is also considered battery

Intentional Torts

1. Intent- to purposely desires to cause an action, and knows with substantial certainty or consequences 2. Specific Intent- Purposely knows outcomes of an intended action 3. General Intent- Knows with substantial certainty that a certain outcome will result

Conversion

1. Intentional excercising dominion or control over a chattel depriving the owner of the property of possession or interfering so seriously that the tortfeasor is required to pay the full value of the chattel

Assault

1. Intentionally causing of reasonable apprehension of imminent danger and well founded harmful or offensive contact Examples of sufficient intent 1. Jokers who intend to cause apprehension only, not to actually make contact will be sufficient 2. Anyone intending to frighten

Trespass to land updated

1. Intentionally enters land of another without authorization 2. Remains on land after permission expired 3. Fails to remove thing on land after permission is expired

Defense of Property

1. May use only reasonable force to defend property. Deadly force is not allowed. Katko v. Briney It was not reasonable for Brineys to use spring gun to shoot intruder. Defense to Others- it has to be reasonable force depending on tort

Self Defense

1. Must assume that there is actual danger 2. Reasonable belief of danger May use force in this situation 3. Use of defense must be reasonable. Only deadly force if one's life is in danger.

toxic liability

1. Proof of general causation 2. Must prove specific causation

Consent

1. Reasonable A person is not liable for tort if the other person consented to the action. Ex: A person massage another and accidently hurts him, then there is no liability because there was consent. A boxer dies while in the ring. No liability because the boxer consented to that possibility. Ex: De May v. Roberts Roberts consented to taking the vaccine even though she knew she was already vaccinated, so the surgeon was not liable.

Going-and-coming rule

1. employee is outside scope of employment while engaged in ordinary commute to and from place of work. a. Several exceptions i. One applies when employee endangers others with risk arising from or related to work. One way to determine whether risk is inherent in, or created by, enterprise is to ask whether actual occurrence was generally foreseeable consequence of activity. 1. Has been applied to employees who got into car accidents on way home after drinking alcohol at work 2. That employee might not be fit to drive after breathing lingering pesticide fumes for several hours is not such startling or unusual event that we find car accident on commute home unforeseeable.

Burden of proof: defendant

1. is on defendant to show both that plaintiff was negligent, and that plaintiff's negligent conduct was proximate cause of plaintiff's injuries. a. Jury should be instructed as to legal consequences of their verdict, especially in modified negligence jurisdiction, where percentage change of single point can mean plaintiff recovers almost half of her damages or none of them. ii. Assumption of risk-plaintiff may be denied recovery if he assumed risk of any damage caused by defendant's acts. To have assumed risk, either expressly or impliedly, plaintiff must have known of risk and voluntarily assumed it. It is irrelevant that plaintiff's choice is unreasonable.

Statute of Repose

1. limits potential liability by limiting time during which cause of action can arise. Statutes of repose, which are substantive rather than procedural in nature, stem from equitable concept that time should arrive when person is no longer responsible for past act. Because statute provides outside time limit within which action must commence, time period may run even before person is injured. a. A few states with statutes of repose have made special exceptions for particular products that involve long latency period between exposure and manifestation of injury. b. Some state courts have declared statutes of repose unconstitutional based on equal protection or "open courts" provisions in state constitutions. c. Generally, tolling provisions of statutes of limitation do not apply to statutes of repose.

Statute of repose

1. limits potential liability by limiting time during which cause of action can arise. Statutes of repose, which are substantive rather than procedural in nature, stem from equitable concept that time should arrive when person is no longer responsible for past act. Because statute provides outside time limit within which action must commence, time period may run even before person is injured. a. A few states with statutes of repose have made special exceptions for particular products that involve long latency period between exposure and manifestation of injury. b. Some state courts have declared statutes of repose unconstitutional based on equal protection or "open courts" provisions in state constitutions. c. Generally, tolling provisions of statutes of limitation do not apply to statutes of repose.

Discovery Doctrine

1. under which statute does not begin to run until negligent injury is, or should have been discovered. a. Adopted by majority of American states; some limit application to foreign objects; majority apply it to all medical malpractice cases. b. In those classes of cases where medical malpractice is asserted to have occurred through negligent performance of surgical procedures, cause of action accrues and statute of limitations commences to run when patient discovers, or in exercise of reasonable car and diligence for his own health and welfare, should have discovered resulting injury. 2. In some medical malpractice cases, courts have found that statute of limitations did not begin to run until course of treatment was complete. This is sometimes referred to as continuing tort. 3. Statute of limitation contain provisions that toll (stop) running of time within which to file for various reasons. Most common of these are provisions that toll statute for minors and for those legally insane or incompetent. Tolling stops (clock begins running) when minor reaches her majority or when incompetent becomes competent again. But what if incompetence is permanent? In few jurisdictions, appointment of guardian starts clock of statute of limitations and others have outside time limit for filing actions on behalf of incompetent plaintiffs, whether or not they have been restored to competency by that time. In others, appointment of guardian does not affect tolling provision of statute of limitations because it does not remove disability. In addition, many jurisdictions recognize equitable (not provided in statute) tolling where, for example, defendant fraudulently concealed injury from plaintiff or concealed his own identity. 4. Sometimes, plaintiff will develop second, more serious injury after initial, less serious symptoms were noted. a. Statute begins to run when plaintiff discovers some form of actionable harm, not fullest manifestation thereof b. Plaintiff who is aware of both her injury and likely cause of her injury is not permitted to circumvent statute of limitations by waiting for more serious injury to develop from same cause 5. Choice of law rules in most states provide that law of forum (state where lawsuit is filed) determines statute of limitations. Most states have "borrowing" rules as part of their statute of limitations that provide that forum's law applies unless other jurisdiction's statute is shorter, in which case that jurisdiction's limitation is borrowed. 6. Statute of limitations limit time during which cause of action can be brought. Statute of repose limits potential liability by limiting time during which cause of action can arise. Statutes of repose, which are substantive rather than procedural in nature, stem from equitable concept that time should arrive when person is no longer responsible for past act. Because statute provides outside time limit within which action must commence, time period may run even before person is injured. a. A few states with statutes of repose have made special exceptions for particular products that involve long latency period between exposure and manifestation of injury. b. Some state courts have declared statutes of repose unconstitutional based on equal protection or "open courts" provisions in state constitutions. c. Generally, tolling provisions of statutes of limitation do not apply to statutes of repose.

Intentional Infliction of Emotional Distress

A. It must be done intentionally for purpose of causing severe and emotional distress because of extreme or outrageous conduct (Mere vulgarity cannot be enough for liability) Extreme & outrageous conduct a. Liability is only for conduct exceeding all bounds which could be tolerated by a decent society, of a nature especially calculated to cause mental damage of a very serious kind. The conduct must be calculated to cause severe emotional distress to a person of ordinary sensibilities, in the absence of special knowledge or notice. 1. Prevent woman from seeing her 98 yr. Old mother in nursing home 2. Hiding location of baby from its father so baby could be secretly put up for adoption

False Imprisonment and escape

A. Must be reasonable means of escape, even if Defendant doesn't know Plaintiff has means to escape & acts intending to confine ■ Examples - reasonable means of escape ■ Nonexamples- NO means of escape b/c they aren't reasonable 1. plaintiff need not crawl through sewer even if it represents a means of escape 2. Whittaker v. Sandford: Plaintiff not permitted to leave the boat to go back onshore to America. No confinement to her room or any specific place on the ship, but since the ship was not docked she had no safe exit off the boat to shore.

Ranson v. Kitner

Although Ranson was hunting and confused Kitner's dog with a wolve and shot it, Ransom is still liable for the mistake

Transferred Intent

Applies where defendant intends to commit a tort however commits a tort to the wrong intended person instead. Transferred intent results only with the following torts 1. Assault 2. Battery 3. False Imprisonment 4. Trespass to Land 5. Trespass to Chattel

Foreseeability and Proximate Cause

Approach 1. The law usually limits the scope of liability based upon the foreseeability of the type of the harm and the manner of the harm, but not the extent of the harm. In this section, we'll explain the distinctions.

Unforeseeable Type of Harm

Approach 2. A person who causes injury to another is not liable if the type of harm does not foreseeably flow from the negligent act. For example, if Damon drops a glass bottle on the floor and does not clean it up, Damon would be liable for the injuries caused to anyone who cut themselves on the glass. However, if a freak fire is somehow caused by sunlight that is magnified through the broken glass, it is arguable that Damon would not be liable for injuries caused by the fire because they are not a foreseeable type of harm that would flow from the negligent act. In other words, a fire is not a foreseeable result that might stem from leaving shards of glass on the ground.

Implied Consent

Assumption of risk involves encountering of subjectively known risk; contributory negligence may involve plaintiff exposing himself to danger of which he was subjectively unaware but which would have been apparent had he used due care. b. If defendant has been reckless, contributory negligence is usually avoided, but assumption of risk will remain. One can assume the risk of reckless conduct. c. Scope of risk assumed must be addressed. d. In addition to knowledge of risk, plaintiff must proceed to encounter it voluntarily. e. Assumption of risk bars recovery like contributory negligence. i. Express assumption of risk is still alive and used throughout courts today. ii. Implied assumption of risk is no longer in existence in comparative negligence jurisdictions. It no longer exists in 46 of the 50 states. 1. Advent of comparative negligence is prompting courts to implement merger of defenses of contributory negligence and implied assumption of the risk. iii. Plaintiff negligently fails to wear seatbelt and is more seriously injured than he would have been if he had worn it. Should plaintiff's failure to wear seatbelt be considered in case against other driver? Against vehicle manufacturer? To recover all damages, plaintiff can argue egg-shell skull syndrome (you take plaintiff as is).

Deviation of Negligence Professionals

Baseline that measures the standard within that profession It must exercise skill and knowledge of that profession. Ex: Attorney malpractice If client loses case because an attorney incompetence of the law, this constitutes malpractice.

Causation vs. Correlation

Causation, means that one event caused another. In other words, a certain event, let's call it X, led to or is responsible for a second event, Y. Correlation, on the other hand, simply means that two events are associated. That is, they are often, or even always, seen at the same time. While correlation between two events may hint at causation, it does not prove a cause and effect relationship. For example, two events that occur at the same time may both be caused by a third event. In addition, even if there is a cause and effect relationship between two events, correlation alone cannot tell us which event is the cause and which is the effect.

Champerty & Maintenance

Champerty is an agreement whereby a person with interest in a lawsuit agrees to aid in or carry on it's litigation in consideration of a share of the proceeds

comparative Negligence

Comparative fault is applicable to strict products liability actions Comparative fault does not eliminate joint and several liability and Retention of joint and several liability does not deny defendants equal protection of the laws.

tolling of the statute of limitations

Conditions that suspend the passage of time, effectively extending the statute of limitations

proximate cause (legal cause)

Conduct constituting proximate cause need only be cause which sets off foreseeable sequence of consequences, unbroken by any superseding cause, and which is substantial factor in producing particular injury. a. Generally defendant's standard of conduct is measured by reaction to be expected of normal persons; if individual was not acting reasonable, not liable.

gross negligence

Conduct that constitutes a willful or reckless disregard for a duty or standard of care. a. 2) when bargaining power of one party to contract is so grossly unequal so as to put that party at mercy of other's negligence; and (3) when transaction involves public interest.

Concurrent Negligence

Contribution-where joint and several liability exists, it permits plaintiff to recover entire judgment amount from any tortfeasor. Rule of contribution, adopted in some form in most states, allows any tortfeasor required to pay more than his share of damages to have claim against other jointly liable parties for excess. Thus, contribution is device whereby responsibility is apportioned among those who are at fault. 1. Right to seek contribution belongs to tortfeasor who has been forced to pay, and existence of right cannot logically depend upon selection of defendants made by plaintiff. If it did so depend, caprice or whim of plaintiff, or his deliberate intention to fasten liability on one defendant alone, could preclude that defendant from having contribution to which he might otherwise be entitled. a. When tort is committed by concurrent negligence of two or more persons WHO ARE NOT INTENTIONAL WRONGDOERS, contribution should be enforced. b. It is unfair to saddle entire burden of a loss, for which two are responsible, upon one alone, while other goes scot free. i. Traditional common law rule that contribution is not permitted among intentional wrongdoers has persisted, and there seems little inclination to change it. 2. Husband and wife can be liable for tortious acts by one against other. a. If there is no joint and several liability, there is no need for contribution.

Contributory negligence completely bars recovery.

Contributory negligence does not absolutely bar recovery where defendant's conduct was intentional, where defendant's conduct was grossly negligent, where defendant had "last clear chance" with which, through exercise of ordinary care, to avoid plaintiff's injury, or where plaintiff's negligence may be classified as "remote."

I. Defenses a. Plaintiff's Conduct i. Basic options available to law in connection with how to treat fact that plaintiff's negligence contributed to happening of accident: Contributory negligence-law

Contributory negligence-law completely bars plaintiff's claim. 2. Law completely ignores plaintiff's culpable conduct; approach taken under most Worker Compensation Acts and No-Fault Automobile Accident Reparation Systems 3. Law could compare plaintiff's fault with that of defendant and reduce plaintiff's damages according to measure of fault. This approach, called comparative negligence, has been expressly adopted in one form or another in 46 states, by statute or judicial decision. a. In only four states (Alabama, Maryland, Virginia, North Carolina) and the District of Columbia, contributory negligence continues to be complete bar to recovery. ii. Courts created number of judicial devices to improve harsh effects of rule of contributory negligence as complete bar to recovery: 1. Burden of pleading and proving contributory negligence is on defendant. This is also true of comparative negligence. 2. Courts have been very reluctant to take issue of contributory negligence away from jury through summary judgment or judgment as matter of law. a. But courts will do so if no reasonable jury could find in favor of the plaintiff. 3. Plaintiff's negligence will bar recovery only if it is substantial factor in bringing about result. 4. Courts have subtly confined defense of contributory negligence by narrowly limiting scope of proximate cause as applied to risks that plaintiff exposed himself to by his act of negligence.

Deviation of Negligence Custom

Customs dictate who one should reasonably react and behave under those specific circumstances

Wagner v. State

Disabled man had intent for battery b/c he intended to make contact (hitting woman in the head at Kmart). Did not matter whether he appreciated that it was harmful or offensive.

Rescue Doctrine

Doctrine under which anyone who negligently causes harm to a person or property may be liable to one who is injured in an effort to rescue the imperiled person or property

What if second incident was not independent?

Driver negligently strikes pedestrian, breaking his leg. While pedestrian is lying helpless in street, bicyclist negligently runs over his arm. At the hospital, pedestrian is treated negligently by physician, aggravating leg injury. Driver would be responsible for all injuries. Bicyclist would be responsible for arm injury. Physician would be responsible for aggravation of leg injury. ii. Where independent concurring acts have caused distinct and separate injuries to plaintiff, or where some reasonable means of apportioning damages is evident, courts generally will not hold tortfeasors jointly and severally liable. But if triers of facts conclude that they cannot reasonably make division of liability between tortfeasors, this is point where road of authority divides. a. Some modern courts say case is now over, and plaintiff shall take nothing (common law) b. Other courts: where negligence of two or more persons concur in producing single, indivisible injury, then such persons are jointly and severally liable. 1. Where injury is indivisible, judge or jury must determine whether or not it is practicable to apportion harm among tortfeasors. If not, entire liability may be imposed upon one (or several) tortfeasors subject to subsequent right of contribution among joint offenders. a. Rule is to shift burden of proof as to which one was responsible and to what degree from injured party to wrongdoers. iii. 14 year old decedent, while sitting on horizontal girder of bridge, leaned over, lost his balance, instinctively threw out arm, and took hold of one of wires with to save himself from falling. The wires happened to be charged with high voltage current at time and he was electrocuted. If it were found that plaintiff would have thus fallen with death probably resulting, defendant would not be liable, unless for conscious suffering found to have been sustained from shock. In that situation his life or earning capacity had no value. 2. If it should be found that but for current he would have fallen with serious injury, then loss of life or earning capacity resulting from electrocution would be measured by its value in such injured condition.

Defenses to the Prima Facie Case of Negligence

Duty The plaintiff always owes a duty to themselves; UNLESS a. Special Relationship I. Children do not have a duty to protect themselves from sexual abuse by adults. II. Landowners owe no duty to trespassers to refrain from negligent conduct.Only in jurisdictions that classify trespasser, licensee, and invitee. The standard of care is typically reasonable person unless the standard is changed. Physical infirmity Mental condition Per Se Breach 1. Did the plaintiff breach their duty to themselves; AND 2. Fail to use the standard of care?

strict liability limitations

Imposition of strict liability due to an ultra hazardous activity is limited to consequences from the activity that result from the risk that makes the activity nonhazardous.

Daubert v. Merrell Dow Pharmaceuticals

In a negligence action, causation can be proven even f it is not known how the harm occurred if there is sufficiently compelling proof that the defendant must have caused the harm somehow.

McGuire v. Almy

Insane man had requisite intent for battery where he was (a) capable of entertaining, and (b) did entertain, intent to hit his caretaker.

Dual Intent Jurisdiction

It is necessary to intend not only the contact but also that the contact be harmful or offensive

Joint Tortfeasors

Liability and Joinder of Defendants i. Joint and Several Liability When two or more tortious acts combine to proximately cause an indivisible injury to a plaintiff, each tortfeasor is jointly and severally liable for that injury. This means that each is liable to plaintiff for entire damage incurred. Joint and several liability applies even though each tortfeasor acted entirely independently. However, if actions are independent, plaintiff's injury is divisible, and it is possible to identify portion of injuries caused by each defendant, then each will only be liable for the identifiable portion.

Vicarious Liability

Legal doctrine under which a party can be held liable for the wrongful actions of another party.

Loss of Consortium Damages

Most states recognize a claim by the spouse of an injured person for loss of conjugal relations, society, companionship, household services

Kramer v. Wilkins

Mr. Wilkins came to see friend at Kramer hotel. A glass fell on Wilkins head. Two years later he developed cancer on that spot. He sued Kramer and lost. The mere possibility that cancer developed because of this is not enough. Correlation does not mean causation.

Reynolds v. Texas & Pacific Railroad Co.

Reynolds sue because she fell from the train as she tried to reach it. So she sued the railroad company. Sine Qua Non "Although the accident could have occurred in broad daylight, the railroad's negligence greatly increased the chances of the accident. As a result, the negligence is determined to be the case in fact of the accident."

Rule of Strict Liability

Plaintiff must prove: Harm Proximate Cause Example: abnormally dangerous activities

Negligence through violation of Standard of Care

Plaintiff must show that defendant did not meet standard of care Ex: Ortega v. Kmart Ortega slipped on a milk at the store. She was able to prove that the milk was there sticky on the floor for more than 15 minutes. Thus, Kmart is liable because it failed to watch the aisles or clean it up. Non-Ex: Goodard v. Boston Goodard slipped on a banana, so he sued Boston Railroad. Goddard failed to prove that banana peel was on the ground for a while. A passenger could have left the banana minutes before, so Boston Railroad could not be liable.

Comparative Negligence

Plaintiff's damages are to be reduced in proportion to percentage of total negligence attributable to plaintiff. a. Types of comparative negligence utilized by 46 states:

proximate cause (legal cause)

a point along a chain of events caused by a negligent party after which this party is no longer legally responsible for the consequences of his or her actions

Substantial Factor Test

a standard adopted in several states in place of proximate cause; a jury may hold a defendant liable in tort if it finds that defendant's conduct was a substantial cause of the injury in question Non example: Someone throw a match to a forest fire. Was the match a substantial factor of the fire? No.

Necessity

Public Necessity: 1. It is okay to commit intentional tort if it is for the greater good. 2. Life is more important than a person's property Private Necessity: 1. One's private interest or need to commit a tort during an emergency Ex: Surroco v. Geary It was okay for Surroco to destroy Geary house. If he had not, the house would have been destroyed regardless and the fire would have continued to spread. Vincent v. Lake Erie Transportation Co. Although Lake Erie Transportation Company did not intentionally mean to cause damage to the dock, they are still liable for the unintentional damages that were caused.

iii. Contributory negligence is not defense to intentional tort.

Same general rule has been extended in almost every jurisdiction to situations in which defendant engaged in wanton and willful or reckless conduct. It is said that this conduct differs from negligence not only in degree, but also in kind and, therefore, defense of contributory negligence is inapplicable.

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

Shipping hazardous chemicals by rail through metropolitan ares is not abnormally dangerous activity.

Gentry v. Douglas Hereford Ranch

Sine Qua Non Bacon planned to go hunting on Douglas Hereford Ranch , but as he walked on steps at the Ranch, he fell and his rifle went off, killing Gentry. Gentry's husband brought a suit against the Ranch, claiming negligence in the maintenance of the steps. Where cause in fact of an accident cannot be proven, speculation is not sufficient is not sufficient to defeat a motion for summary judgement.

IV. Battery

Single-single intent state intent to contact only (harm or offensive to jury) Dual- you need to prove intent to contact and intent for it to be harmful or offensive contact

Talmage v. Smith

Smith threw a stick at a kid and ended up hitting the wrong one. Nonetheless, Smith is still liable for the tort.

Licensees

Someone who is on the premises of another by permission or acquiescence of the owner or occupier, and not by invitation

Release

Surrender of plaintiff's cause of action against party to whom release is given. In most states, release of one tortfeasor does not discharge other tortfeasors unless expressly provided in release agreement. Rather, claim against others is reduced to extent of amount stipulated in agreement or amount of consideration paid, whichever is greater. 1. Theory of covenant not to sue is that plaintiff does not surrender cause of action, but contracts not to sue on it. Right is retained, but there is agreement not to enforce it. Protection to defendant is that if plaintiff sues, he will have counterclaim for breach of covenant, in which damages will equal any recovery by plaintiff plus expenses of defending suit. 2. Suppose there is only one tortfeasor. Release is signed on basis of assumed injuries. It turns out that injuries are actually much more extensive than assumed. What can injured party do? Ordinarily he must seek to set release aside on ground of fraud, mistake, duress, or undue influence. Most courts will not permit plaintiff to avoid terms of release if mistake is about extent of injury or its consequences. a. Some courts have set aside releases where plaintiff believed she had no personal injury when in fact her injuries were serious.

Intent 2: that actor believes the consequences are substantially certain to result.

That actor believes the consequences are substantially certain to result. a. Examples- of consequence Garratt v. Dailey: 6 yr. old kid can have intent if (by experience, capacity &/or understanding) he has knowledge to substantial certainty that outcome will result (i.e. she would attempt to sit down where the chair had been) Setting off an explosive device in room knowing plaintiff is inside b. Non-examples - NO "substantial certainty" Fromenthal v. Clark: child below "age of discernment" (here, age 2) cannot have intent or substantial certainty ■backing out of driveway without looking & hitting an oncoming car...negligent, but not substantially certain conduct would result in contact with another vehicle ■ firing gun into the desert not knowing there is a person in the desert who would be hit by the bullet.

To prove res ipsa loquitor negligence, the plaintiff must prove 3 things:

The incident was of a type that does not generally happen without negligence It was caused by an instrumentality solely in defendant's control The plaintiff did not contribute to the cause The defendant and no one or anything else could have been the cause of the negligence Plaintiff must prove that defendant was negligent. (Burden of Proof)

Doctrine of Last Clear Chance

The last clear chance doctrine was developed to mitigate the traditional "all or nothing" effect of contributory negligence. Under the last clear chance doctrine, the person with the last clear chance to avoid an accident who fails to do so is liable for negligence. Under this doctrine whole loss is still placed on one party or other. 2. Some jurisdictions restricted its use to cases where plaintiff was helpless and unable to avoid danger created by defendant's negligence, while others permitted its use if plaintiff was merely inattentive to danger. 3. Some required defendant to have discovered that plaintiff was helpless, while others allowed its use if defendant should have discovered that plaintiff was helpless. 4. Jurisdictions that still follow common law rule of contributory negligence apply exception of last clear chance in at least one of its many forms.

Proportionate Liability

The legal doctrine that payment of a share of the court's damage award be based on the extent (or proportion) of fault exhibited by a convicted defendant

Statute of Limitations

Traditionally, courts have held that right of action accrues immediately upon infliction or occurrence of injury and that mere ignorance or failure of plaintiff to discover his cause of action or subsequent resulting damage does not toll statute. 1. This is harsh and oppressive; courts have fashioned discovery doctrine, under which statute does not begin to run until negligent injury is, or should have been discovered. a. Adopted by majority of American states; some limit application to foreign objects; majority apply it to all medical malpractice cases. b. In those classes of cases where medical malpractice is asserted to have occurred through negligent performance of surgical procedures, cause of action accrues and statute of limitations commences to run when patient discovers, or in exercise of reasonable car and diligence for his own health and welfare, should have discovered resulting injury. 2. In some medical malpractice cases, courts have found that statute of limitations did not begin to run until course of treatment was complete. This is sometimes referred to as continuing tort. 3. Statute of limitation contain provisions that toll (stop) running of time within which to file for various reasons. Most common of these are provisions that toll statute for minors and for those legally insane or incompetent. Tolling stops (clock begins running) when minor reaches her majority or when incompetent becomes competent again. But what if incompetence is permanent? In few jurisdictions, appointment of guardian starts clock of statute of limitations and others have outside time limit for filing actions on behalf of incompetent plaintiffs, whether or not they have been restored to competency by that time. In others, appointment of guardian does not affect tolling provision of statute of limitations because it does not remove disability. In addition, many jurisdictions recognize equitable (not provided in statute) tolling where, for example, defendant fraudulently concealed injury from plaintiff or concealed his own identity. 4. Sometimes, plaintiff will develop second, more serious injury after initial, less serious symptoms were noted. a. Statute begins to run when plaintiff discovers some form of actionable harm, not fullest manifestation thereof b. Plaintiff who is aware of both her injury and likely cause of her injury is not permitted to circumvent statute of limitations by waiting for more serious injury to develop from same cause 5. Choice of law rules in most states provide that law of forum (state where lawsuit is filed) determines statute of limitations. Most states have "borrowing" rules as part of their statute of limitations that provide that forum's law applies unless other jurisdiction's statute is shorter, in which case that jurisdiction's limitation is borrowed. 6. Statute of limitations limit time during which cause of action can be brought. Statute of repose limits potential liability by limiting time during which cause of action can arise. Statutes of repose, which are substantive rather than procedural in nature, stem from equitable concept that time should arrive when person is no longer responsible for past act. Because statute provides outside time limit within which action must commence, time period may run even before person is injured. a. A few states with statutes of repose have made special exceptions for particular products that involve long latency period between exposure and manifestation of injury. b. Some state courts have declared statutes of repose unconstitutional based on equal protection or "open courts" provisions in state constitutions. c. Generally, tolling provisions of statutes of limitation do not apply to statutes of repose.

Two modified forms of comparative negligence

Two modified forms of comparative negligence produce different result only in 50/50 case.2. Burden of proof is on defendant to show both that plaintiff was negligent, and that plaintiff's negligent conduct was proximate cause of plaintiff's injuries. a.Jury should be instructed as to legal consequences of their verdict, especially in modified negligence jurisdiction, where percentage change of single point can mean plaintiff recovers almost half of her damages or none of them.

Deviation Of Negligence

Under an emergency, a person may not be found liable for negligence. Ex: Cordas v. Peerless Transportation Co. Peerless was driving a taxi when an armed man approached him and the passengers. Peerless left the passengers and ran away.

Deviation of Negligence Locality Rule

When held to a different standard depending on a professional's location.

equitable tolling

When the defendants conduct dictates that we pause the limitations period to ensure fairness

Negligence Per Se

Whereby an act is considered negligent because it violates a statute (or regulation). The doctrine is effectively a form of strict liability. Osborne v. McMasters McMaster's sold poison without properly labeling. Since it was not labeled, Osborne drank it and died. Therefore, McMAster's is liable for negligence per se.

False Arrest

Wrongful arrest without reasonable evidence to do so. Bonkowski v. Arlan's Department Store- It is okay to detain someone within one's vicinity if there is reasonable evidence of possible theft

Defenses Negligence Per Se case

Zeni was walking down the street instead of the sidewalk because there was snow on it. This is a violation of statute. It requires pedestrians to walk on and facing traffic. Anderson hurt her with the car because of this. However the court ruled it was okay to violate the statute because in this situation it was snowy and it was much more dangerous to walk on the sidewalk and risk getting injured.

Act of God

a natural and unavoidable catastrophe that interrupts the expected course of events

indemnity

a payment for damage or loss

survivor statute

allow the decedent's claim to flow to his estate, and the estate to sue, then distribute the money to the heirs.

insolvent

apportion liability 40%, 51%, 9% Can choose percentage of each or (one with the money) can be held liable for all of it.... (Can't really sue deadbeat 51% hobo)

res ipsa loquitur (the thing speaks for itself)

court may be willing to infer that the defendant caused the harm, under this doctrine . -shifts the burden of proof from plaintiff to defendant -applies only when ( 1) the defendant had exclusive control of the thing that caused the harm ( 2) the harm normally would not have occurred without negli-gence, and ( 3) the plaintiff had no role in causing the harm.

Basic Standard-Reasonable Person

defendant's conduct is measured against reasonable, ordinary, prudent person. A person with superior attribute is held to a higher standard. Ex: A truck driver is held to a higher standard when driving a trailer with products.

Doctrine of Respondeat Superior

employer is vicariously liable for employee's negligent torts committed within the agent's "course and scope of employment." i. Respondeat superior imposes liability whether or not employer was itself negligent, and whether or not employer had control of employee. Doctrine's animating principle is that business should absorb costs its undertakings impose on others. 1. Doctrine requires that employee be acting within course of employment. Acts necessary to comfort, convenience, health, and welfare of employee while at work, though strictly personal and not acts of service, do not take employee outside scope of employment. Where employee is combining his own business with that of employer, or attending to both at substantially same time, no nice inquiry will be made as to which business he was actually engaged in at time of injury, unless it clearly appears that neither directly nor indirectly could he have been serving employer. Employer's vicarious liability may extend to willful and malicious torts of employee as well as negligence. Employee's tortious act may be within scope of employment even if it contravenes an express company rule and confers no benefit to employer.

Forseeability

excludes liability for harms that were sufficiently unforeseeable at the time of the defendant's tortious conduct that they were not among the risks that made the defendant negligent

Statute of Repose

limits the time period for which a manufacturer is liable for injury caused by its product

Mary Carter agreements

exists when plaintiff enters into settlement agreement with one defendant and goes to trial against remaining defendant(s). Settling defendant, who remains party, guarantees plaintiff minimum payment, which may be offset in whole or in part by excess judgment recovered at trial. This creates tremendous incentive for settling defendant to ensure that plaintiff succeeds in obtaining sizable recovery, and thus motivates defendant to assist greatly in plaintiff's presentation of case. a. Minority view-Agreements not only allow plaintiffs to buy support for case, they also motivate more culpable defendants to make good deal and thus end up paying little or nothing in damages. Remedial measures cannot overcome nor sufficiently alleviate malignant effects that Mary Carter agreements inflict upon adversarial system. No persuasive public policy justifies them, and they are not legitimized simply because this practice may continue in absence of these agreements. b. Majority-most jurisdictions permit agreements as long as they are disclosed to court and other parties and remaining defendant(s) get more benefits during trial.

Strict Liability

holding a defendant liable without a showing of negligence

i. Employee is acting within scope of employment when he is performing services for which he has been employed, or when he is doing anything which is reasonably incidental to his employment.

i. 1. Test is whether such conduct should have been fairly foreseen from nature of employment and duties relating to it. 2. Slight deviation rule-it must be determined whether employee was on frolic or detour; latter is deviation that is sufficiently related to employment to fall within its scope, while former is pursuit of employee's personal business as substantial deviation from or abandonment of employment. If employee wholly abandons, even temporarily, employer's business for personal reasons, act is not within scope of employment, and employer is not liable under respondeat superior for employee's conduct during lapse. Diversion for strict performance of task is not abandonment of responsibility and service to employer, unless very character of diversion severs employment relationship. Acts that are necessary to comfort, convenience, health, and welfare of employee while at work are not outside scope of employment, if conduct is not substantial deviation from duties of employment. Personal acts that are not far removed in time, distance, or purpose are deemed to be incidental to employment. a. Several factors have been identified as helpful in determining whether employee has embarked on slight or substantial deviation. They include: i. Employee's intent ii. Nature, time, and place of deviation iii. Time consumed in deviation iv. Work for which employee was hired v. Incidental acts reasonably expected by employer vi. Freedom allowed employee in performing job responsibilities

Affirmative Defenses to Intentional Torts

i. CONSENT: ii. PROTECTIVE PRIVILEGES: 1) SELF DEFENSE: 2) DEFENSE OF OTHERS: 3) DEFENSE OF PROPERTY: iii. DEFENSE OF NECESSITY: Necessity Public: Blow up house to save community from fire. Private: Boat anchor to save himself on sea

Respondeat Superior

i. Conventional reasons given for holding that employer ought to bear risk of loss within certain limits for employee's harmful conduct in course of his work are employer 1. Has control over business, including work of employees 2. Stands to profit from employee's services. Combination of these reasons justifies us in imposing vicarious liability on employer. As in outcome-responsibility, person who, in situation of uncertainty, has degree of control over how it will turn out, and who stands to gain if it goes in his favor, must bear risk that it will turn out to harm another.

Personal Injuries

i. Legal standard on which to gauge jury verdict for remittitur purposes is "maximum recovery rule." This rule directs trial judge to determine whether verdict of jury exceeds maximum amount which jury could reasonably find and if it does, trial judge may then reduce verdict to highest amount that jury could properly have awarded. 1. There are five cardinal elements of compensatory damages: a. Past physical and mental pain b. Future physical and mental pain c. Future medical expenses d. Loss of earning capacity e. Permanent disability and disfigurement. ii. Award of damages will be deemed excessive if it falls outside range of fair and reasonable compensation or results from passion or prejudice, or if it is so large that it shocks judicial conscience. When reviewing award of compensatory damages for nonfatal injury, court may consider, among other things, permanency of plaintiff's condition, possibility of future deterioration, extent of plaintiff's medical expenses, and restrictions imposed on plaintiff by injuries. iii.In personal injury cases lost earnings and medical and other expenses are treated as special damages subject to objective measurement of economic loss, while pain and suffering and emotional distress are treated as general damages whose loss-although real-is fundamentally non-economic.

Satisfaction and Release

i. Satisfaction-if plaintiff recovers full payment from one tortfeasor, either by settlement or payment of judgment, there is a satisfaction. She may not recover further against any other joint tortfeasor. Until there is a satisfaction, however, she may proceed against other jointly liable parties. 1. While there may be many perpetrators of wrongful act, each of whom is separately liable, yet act and its consequences are indivisible, and injured person is, therefore, limited to single satisfaction. 2. Plaintiff may bring a series of separate actions against defendants liable for same damage, and take each to judgment, as long as he only collects on one. 3. Satisfaction prevents unjust enrichment. 4. Necessary corollary to rule that there be only one full satisfaction of claim through satisfaction of judgment is that any partial satisfaction of claim must be credited to other parties who are also liable.

Wrongful Death

i. Sole basis for rule at common law is felony-merger doctrine. Common law did not allow civil recovery for act that constituted both tort and felony. Tort was treated as less importance than offense against Crown, and was merged into, or pre-empted by, felony. Doctrine found practical justification in fact that punishment for felony was death of felon and forfeiture of property to Crown. 1. American law did adopt vestige of felony-merger doctrine, to effect that civil action was delayed until after criminal trial. However, in this country felony punishment did not include forfeiture of property; therefore, there was nothing, even in those limited instances, to bar subsequent civil suit. a. Every state today has enacted wrongful-death statute. 2. Recovery for wrongful death is held to cover damages for: a. Loss of support, including all financial support decedent would have made to dependents had he lived b. Monetary value of services decedent provided and would have continued to provide but for his wrongful death including nurture, training, education, and guidance that child would have received had not parent been wrongfully killed plus services decedent performed at home or for his spouse c. Compensation for loss of society including broad range of mutual benefits each family member receives from others' continued existence, including love, affection, care, attention, companionship, comfort, and protection d. Damages for funeral expenses 3. Statutes provide action is to be brought by personal representative of deceased for benefit of named beneficiaries. Some statutes provide that action can be brought by beneficiaries themselves. a. Beneficiaries i. All states provide lawful spouse is designated beneficiary. Cases have been consistent in refusing to extend definition of spouse to unmarried cohabitants. ii. Several jurisdictions have made wrongful death benefits available to domestic partners. iii. Most jurisdictions provide that children of decedent are beneficiaries, although some put them in different category from spouses and allow them to recover only if there is no surviving spouse. iv. Stepchildren cannot be beneficiaries. v. Until late 1960's, majority of American courts held that children born out of wedlock were not intended beneficiaries under statute, unless statute said so. Although some jurisdictions require that father have acknowledged paternity or that paternity have been adjudicated before death in order for wrongful death action to be brought by him, most permit showing to be made after death of child. vi. Every jurisdiction has cause of action for prenatal injuries to viable unborn child who is born alive. Some, however, will not allow recovery if child is stillborn. Others will not allow recovery if child was not viable at time of injury, even if born alive. vii. In most jurisdictions, parent is beneficiary if child dies without spouse or children. Some of those statutes require parents of adult children to show financial dependence in order to qualify as beneficiary. viii. Some statutes provide that next of kin is beneficiary, as long as person can show financial loss. b. If no designated beneficiaries are living at time of wrongful death, action fails. ii. To limit damages for death of child to monetary value of services which next of kin could reasonably have expected to receive during his minority less reasonable expense of maintaining and educating him stamps almost all modern children as worthless in eyes of law. In fact, if rule was literally followed, average child would have negative worth. 1. Growing number of courts have extended measure of damages to include loss of society and companionship of minor child, even under statutes limiting recovery to pecuniary loss or pecuniary value of services less cost of support and maintenance, or similar limitations. iii. Should punitive damages be awarded to beneficiary in cases involving reckless or intentional conduct? Little over half of states permit punitive damages to be awarded in wrongful death action. Some of those jurisdictions have statutes that specifically authorize punitive damages; others have interpreted their statutes, although silent on subject, to permit award of punitive damages. b. Survival-action survives your death and is brought by estate (death does not have to result from specific injury [ex. If individual wants to recover compensatory damages for broken leg and during court process, individual is struck by lightning and dies, estate can still bring action to recover individual's compensatory claims) i. However, if plaintiff dies instantaneously, there are no survival damages because there was no survival. ii. Usual method of dealing with two causes of action is to allocate conscious pain and suffering, expenses and loss of earnings of decedent up to date of death to survival statute, and to allocate loss of benefits of survivors to action for wrongful death. 1. If estate brings survival claim and distributes it, creditors get percentage 2. If statute states who gets wrongful death claims (beneficiaries), creditors do not have chance at these damages iii. Under English common law as it was received by American courts, personal tort actions died with person of plaintiff or defendant. 1. In almost every jurisdiction today survival statutes have modified these rules. At very least, these statutes provide that causes of action for injury to all tangible property survive death of either party. Majority of statutes also allow personal injury actions to survive. Only a few states permit claims for intangible interests of personalty (such as intentional infliction of emotional harm or defamation) to survive. a. Recovery for pain and suffering is allowed only if decedent was conscious prior to death.

d. Intervening Causes (Indirect Cause Cases)

i. Where acts of third person intervene between defendant's conduct and plaintiff's injury, causal connection is not automatically severed. Liability turns upon whether intervening act is normal or foreseeable consequence of situation created by defendant's negligence. If intervening act is extraordinary under circumstances, not foreseeable in normal course of events, or independent of or far removed from defendant's conduct, it may well be superseding act which breaks causal nexus. 1. For fact finder to resolve ii. Test for determining whether intervening force constitutes superseding cause is often couched in terms of foreseeability. Person is deemed to have foreseen normal consequences of his conduct, but is not responsible for extraordinary negligent intervening acts of third persons. iii. Mere fact that concurrent cause or intervening act was unforeseen will not relieve defendant guilty of primary negligence from liability, but if intervening agency is something so unexpected or extraordinary as that he could not or ought not to have anticipated it, he will not be liable, and certainly he is not bound to anticipate criminal acts of others by which damage is inflicted and hence is not liable therefor.

Satisfaction

if plaintiff recovers full payment from one tortfeasor, either by settlement or payment of judgment, there is a satisfaction. She may not recover further against any other joint tortfeasor. Until there is a satisfaction, however, she may proceed against other jointly liable parties. 1. While there may be many perpetrators of wrongful act, each of whom is separately liable, yet act and its consequences are indivisible, and injured person is, therefore, limited to single satisfaction. 2. Plaintiff may bring a series of separate actions against defendants liable for same damage, and take each to judgment, as long as he only collects on one. 3. Satisfaction prevents unjust enrichment. 4. Necessary corollary to rule that there be only one full satisfaction of claim through satisfaction of judgment is that any partial satisfaction of claim must be credited to other parties who are also liable.

Single Intent Jurisdiction battery

intent to cause touching (offensive or harmful) Only need to prove that conduct occurred Do not need do prove that there was intend to harm

Abnormally Dangerous Activities

involve a high degree of risk of serious harm and are not matters of common usage

Indemnity

involves shifting entire loss between or among tortfeasors, in contrast to apportioning it as in contribution. 1. When release is given in plaintiff's good faith to one or two or more persons liable in tort for same injury, it shall discharge tortfeasor to whom it is given from all liability for contribution to any other tortfeasor. a. Indemnity allows someone who is without fault, compelled by operation of law to defend himself against wrongful act of another, to recover from wrongdoer entire amount of his loss, including reasonable attorney's fees. Indemnity is permitted only when would-be indemnitee does not join in negligent act. This right to indemnity is limited to those cases in which would-be indemnitee is held derivatively or vicariously liable for wrongful act of another. 2. Difference between contribution and indemnity: while contribution allowed tortfeasor to be partially reimbursed for money paid in judgment or settlement, indemnity was available to shift entire cost of judgment or settlement from tortfeasor whose liability to plaintiff was not based on its own wrongful conduct, but imposed on it by law because of its relationship with tortfeasor whose wrongful conduct caused injury.

Joinder

originally, English law permitted joinder in same lawsuit of multiple defendants only if those defendants had acted in concert. 1. Joinder is now permitted when defendants acted in concert, when defendants acted independently to cause same harm, and even when defendants acted independently to cause different harms. 2. Most jurisdictions, while permitting plaintiff to join multiple defendants in same action, do not require that plaintiff do so. Plaintiff has right to sue one tortfeasor alone, without joining others who also may be liable. Defendant cannot, over plaintiff's objection, compel joinder of others. a. Although defendant cannot affect cause of action between plaintiff and other potential defendants, defendant can enforce whatever right to contribution or indemnity defendant may have against another potential defendant by impleading other party or by bringing separate lawsuit for contribution or indemnity against other party.

Invitees

persons invited by possessor of land onto her property for the purpose of conducting business

Assumption of Risk

plaintiff may be denied recovery if he assumed risk of any damage caused by defendant's acts. To have assumed risk, either expressly or impliedly, plaintiff must have known of risk and voluntarily assumed it. It is irrelevant that plaintiff's choice is unreasonable.

Pure Negligence

plaintiff's recovery is reduced by percentage fault attributable to the plaintiff.

Express Consent

risk may be assumed by express agreement. Such exculpatory clauses in a contract, intended to insulate one of parties from liability resulting from his own negligence, are closely scrutinized but are generally enforceable. a. Unambiguous exculpatory clauses are generally held to be valid in absence of legislation to contrary. b. Three exceptions have been identified where public interest will render exculpatory clause unenforceable: (1) when party protected by clause intentionally causes harm or engages in acts of reckless, wanton, or gross negligence; (2) when bargaining power of one party to contract is so grossly unequal so as to put that party at mercy of other's negligence; and (3) when transaction involves public interest. c. Two basic issues involved when defendant asserts that plaintiff expressly assumed risk. First concerns whether risk that injured plaintiff fell within unambiguous terms of agreement. Second issue is whether contract itself violates public policy and therefore should not be enforced. d. Express assumption of risk clause written into contract of sale between two large corporations is enforceable because parties with equal bargaining power can allocate risk of loss as they choose. e. Common carrier like railroad may not require pre-injury release of passengers. f. Overwhelming majority of jurisdictions have found exculpatory agreements for providing of medical treatment invalid and unenforceable. g. Exculpatory agreement that purports to relieve child care provider of liability for its own negligence is void as against public policy. h.Comparative negligence statutes may affect implied assumption of risk, but they do not affect express assumption of risk.

Release

surrender of plaintiff's cause of action against party to whom release is given. In most states, release of one tortfeasor does not discharge other tortfeasors unless expressly provided in release agreement. Rather, claim against others is reduced to extent of amount stipulated in agreement or amount of consideration paid, whichever is greater. 1. Theory of covenant not to sue is that plaintiff does not surrender cause of action, but contracts not to sue on it. Right is retained, but there is agreement not to enforce it. Protection to defendant is that if plaintiff sues, he will have counterclaim for breach of covenant, in which damages will equal any recovery by plaintiff plus expenses of defending suit. 2. Suppose there is only one tortfeasor. Release is signed on basis of assumed injuries. It turns out that injuries are actually much more extensive than assumed. What can injured party do? Ordinarily he must seek to set release aside on ground of fraud, mistake, duress, or undue influence. Most courts will not permit plaintiff to avoid terms of release if mistake is about extent of injury or its consequences. a. Some courts have set aside releases where plaintiff believed she had no personal injury when in fact her injuries were serious.

Reasonable Care

the degree of care that a person of ordinary prudence would use in the same or similar circumstances or in the same line of business

Andrews Approach

the railroad's act was negligent in rushing someone on train. Railroad is responsible for any and all injuries. i. Plaintiff may establish existence of duty extending from defendant to her by showing that defendant has breached duty he owed to anyone suffering injuries from incident. In short, defendant owes duty of care to anyone who suffers injuries as proximate result of his breach of duty to someone.

Scope of Employment

the realm of activities engaged in by an agent when acting on behalf of a principal

Cardozo Rule

there's no duty of railroad to protect Palsgraf. Attendant was only responsible for individuals in foreseeable "zone of danger" based on reasonable person standard. i. Plaintiff can only recover if she can establish that reasonable person would have foreseen risk of injury to her in the circumstances, i.e., that she was located in foreseeable "zone of danger."

Punitive Damages

these are additional sum, over and above compensation of plaintiff, awarded in order to punish defendant, to make example of defendant, and to deter defendant and others from engaging in similar tortious conduct. i. All damages, whether past, present, or future, must be included in one lump sum award, on particular day verdict is returned, in single lawsuit plaintiff is permitted to bring. ii. Judicial review of jury verdict amounts is relatively limited. Most jurisdictions allow new trials only if award is so high or low that it "shocks the conscience." iii. Because purpose of punitive damages is to punish and deter, they are focused on behavior and characteristics of defendant rather than plaintiff.

Compensatory Damages

these are intended to represent closest possible financial equivalent of loss or harm suffered by plaintiff, to make plaintiff whole again, to restore plaintiff to position plaintiff was in before tort occurred. i. Only tool at jury's disposal for making the plaintiff whole again is money.

iv. Initial tort-feaser

tort feasor may be liable for wrongful acts of third party if foreseeable. There is neither public policy nor precedent barring recovery for suicide of tortuously injured person driven "insane" by consequences of tortious act. 1. In tort law, as contrasted with criminal law, there is recognition that one may retain power to intend, to know, and yet to have irresistible impulse to act and therefore be incapable of voluntary conduct. a. Could argue eggshell-skull syndrome 2. Courts generally view suicide as a deliberate, intentional act. 3. Early decisions steadfastly denied claims based on causing suicide if decedent had even slightest awareness of what he was doing. a. Liability for suicide following negligent act was broadened somewhat when some courts permitted recovery if decedent's injury caused irresistible impulse to commit suicide. 4. Courts are more likely to permit claim where tort was intentional than negligent. 5. Affirmative duty to use care to prevent suicide is sometimes imposed by tort law upon certain classes of defendants. Problems of proximate cause may still arise.

Contribution

where joint and several liability exists, it permits plaintiff to recover entire judgment amount from any tortfeasor. Rule of contribution, adopted in some form in most states, allows any tortfeasor required to pay more than his share of damages to have claim against other jointly liable parties for excess. Thus, contribution is device whereby responsibility is apportioned among those who are at fault. 1. Right to seek contribution belongs to tortfeasor who has been forced to pay, and existence of right cannot logically depend upon selection of defendants made by plaintiff. If it did so depend, caprice or whim of plaintiff, or his deliberate intention to fasten liability on one defendant alone, could preclude that defendant from having contribution to which he might otherwise be entitled. a. When tort is committed by concurrent negligence of two or more persons WHO ARE NOT INTENTIONAL WRONGDOERS, contribution should be enforced. b. It is unfair to saddle entire burden of a loss, for which two are responsible, upon one alone, while other goes scot free. i. Traditional common law rule that contribution is not permitted among intentional wrongdoers has persisted, and there seems little inclination to change it. 2. Husband and wife can be liable for tortious acts by one against other. a.If there is no joint and several liability, there is no need for contribution.