Torts

Is status static?

(1) Status is not static (a) A person who starts out as an invitee or a licensee can become a trespasser by failing to stay within the scope of the area in which the premises owner has invited him. (i) "Employees Only" or "Keep out" 1. A customer or patron who goes into an area of business premises marked "private," Employees only," or "keep out" will be a trespasser once she does so.

(1) Possessor v. Owner

(a) Common law rules were designed to encourage the full exploitation of the land (i) Therefore, the beneficiary of the rule is the possessor of the land, not the abstract legal owner. 1. Most important for when a tenant takes possession of property, even if only for a very short period, he is the one who gets the benefit of these specialized rules. a. The lessor, one he gives up possession, loses the benefit of these rules, although there are other rules which also curtail the degree of care he is required to show

Negligence and medical malpractice

Boyce v. Brown - (∆ is a doctor and ∏ is his patient. ∏ has a fractured ankle and ∆ inserts a screw to join the bone. Several years later ∏ returns to ∆ with pain in her ankle. ∆ does not do an X-ray of the ankle and ∆ simply wraps the ankle in a bandage and provides ∏ with a new arch support. ∏'s ankle pain does not disappear and ∏ seeks out the advice of another doctor. The other doctor does an X-ray on ∏'s ankle and discovers a problem and does further operation on ∏, which helped to fix the problem. ∏ sued ∆ for malpractice, basing ∏'s claim on the fact that ∆ failed to take an X-ray of ∏. ∏'s new doctor testified that he would have done the X-ray if he were ∏, but he failed to state that the failure to do so was a deviation from the proper standard of treatment. Held: A physician or surgeon is not negligent for failure to pursue a course of treatment unless the failure to do so was a deviation from the proper standard of treatment. o Rule: The rules of law governing malpractice are as follows: 1) One license to practice medicine is presumed to possess the degree of skill and learning which is possessed by the average member (average member is not the majority) of the medical profession in good standing in the community in which he practices, and to apply that skill and learning, with ordinary and reasonable care, to cases which come to him for treatment. If he does not possess the requisite skill and learning, or if he does not apply it, he is guilty of malpractice. 2) Before a physician or surgeon can be held liable as for malpractice, he must have done something in his treatment of his patient which the recognized standard of good medical practice in the community in which he is practicing forbids in such cases, or he must have neglected to do something which such standard requires. 3) In order to sustain a verdict for the ∏ in an action for malpractice, the standard of medical practice in the community must be shown by affirmative evidence, and, unless there is evidence of such a standard, a jury may not be permitted to speculate as to what the required standard is, or whether the ∆ has departed therefrom. 4) Negligence on the part of a physician or a surgeon in the treatment of a case of negligence nor want of skill arises from the mere fact that a treatment was unsuccessful, failed to bring the best results, or that the patient died. 5) The accepted rule is that negligence on the part of a physician or surgeon, by reason of his departure from the standard of practice, must be established by expert medical testimony, unless the negligence is so grossly apparent that a layman would have no difficulty in recognizing it. 6) The testimony of other physicians that they would have followed a different course of treatment than that followed by the ∆ is not sufficient to establish malpractice unless it also appears that the course of treatment followed deviated from one of the methods of treatment approved by the standard in that community. o Notes: a) It is not enough that an expert witness testify that he would not personally follow the ∆'s practice; he must also testify that the practice was not recognized as valid. b) Proof that a professional violated the standard of care usually must be established by expert testimony, unless the negligence is so obvious that it is within the common knowledge and experience of lay jurors. For example, the amputation of the wrong leg. c) For the professions in general, evidence as to customary practice is admissible and may prove very influential. For the medical profession, it is usually found to be controlling and the jury are usually told that the ∏ cannot recover unless the ∏ proves that the ∆'s conduct was not in accord with recognized medical practice. There are exceptions, however, as when the custom itself is careless. An example is that an ophthalmologist was held negligent for failure to test a patient under the age of 40 for glaucoma, despite evidence that it was standard practice among ophthalmologists that patient's under the age of 40 are not routinely checked for the disease. d) The court in Boyce stated that a doctor is "presumed to possess the degree of skill and learning which is possessed by the average member of the medical profession." Most courts reject the "average member" instruction b/c it implies that 50% of the profession can't meet the standard. Most courts apply the standard of "the level of skill of the minimally qualified member in good standing."

What are injuries?

Must show suffered actual damages

What is the purpose test?

"The intent with which tort liability is concerned is not necessarily a hostile intent or a desire to do any harm. Rather it is an intent to bring about a result which will invade the interest of another in a way that the law forbids" -Wallace v. Rosen (∆ was a teacher at school ∏s daughter went to, ∏ went to go to school to drop off something for her daughter, and a fire-drill occurred. ∏ was in the way at the top of stairs and claims ∆ pushed her down the stairs in an attempt to get her out of the way, and sues for battery) Held: Where the ∆'s touching would not be offensive to an ordinary person not unduly sensitive the ∏ has filed to establish evidence of a battery.

WagonMound 1

"Wagon Mound No. 1" - (∏ is operator of wharf for shipbuilding. ∆'s freighter was moored about 600 feet away from ∏'s wharf. ∆ carelessly discharged into the harbor a large quantity of furnace oil, which spread across the surface. Oil interfered with use of ∏'s wharf, but caused only minor damage, which was so minor that ∏ is not making a claim for it. Oil on surface became ignited when cotton waste floating on its surface was set fire by molten metal dropped from the wharf by ∏'s workmen. The fire seriously damaged the wharf, as well as two ships docked along side it. Judgment for ∏, ∆ appeals claiming that they can't be held liable for reasonably unforeseeable damages.) Held: Where a ∆'s negligence results in injury to ∏ or ∏'s property, then the ∆ will be held liable only for those damages which were a reasonably foreseeable result of ∆'s negligent actions. o 2 Exceptions to Wagon Mound No. 1: 1) Thin skull rule—worsened physical injury need not be foreseeable; 2) Manner of occurrence—need not be foreseeable, so long as result is. o Keeton has suggested a general rule that helps to explain Wagon Mound #1 and other cases that espouse its approach to proximate cause. One of his three formulations of the rule is: "A negligent actor is legally responsible for that harm, and only that harm, of which the negligent aspect of his conduct is a cause in fact."

Licensee?

(1) A person who has the owner's consent to be on the property, but who does not have a business purpose for being there, or anything else entitling him to be on the land apart form the owner's consent. (2) Just above a trespasser (3) Beneficiary of a somewhat higher standard of care than is the trespasser (a) But a lower standard of care than is owed an invitee

INvitee

(1) A person who is either expressly or impliedly invited onto the premises of another in (furtherance of the owner's business) (Business Invitees) - Traditional View (a) It is not necessary that the invited person gain an advantage by his entry on the land (i) Idea that he duty of affirmative care to make the premises safe is the price that the occupier must pay for the present or prospective economic benefit to be derived from the visitor's presence

Wagon Mound 2`

"Wagon Mound No. 2" - (Same facts as Wagon Mound No. 1, but action is brought by the owners of the two ships on grounds of nuisance and negligence) Held: Where a ∆, without a valid reason, disregards a risk that his actions will cause injury to a ∏, then a ∆ will be held liable if his actions do cause injury to ∏ even if a reasonable person in the position of the ∆ would have recognized the risk was of a small magnitude. o Rule: It does not follow that, no matter what the circumstances may be, it is justifiable to neglect a risk of a small magnitude. A reasonable man would neglect such a risk if he had some valid reason for doing so, e.g., that it would involve considerable expense to eliminate the risk. He would weigh the risk against the difficulty of eliminating it. (A negligent ∆ is liable only for consequences that are reasonably foreseeable, as determined by an assessment of both the risk and utility of incurring them [B v. PL] or A negligent ∆ is liable only for those risks that it is negligent to take) *Wagon Mound 1 ∏ was trying to avoid being contributorily negligent by stating that the fire was unforeseeable and then relying on Polemis. If ∏ would have tried to argue that the fire was foreseeable then the ∏ could have been contributorily negligent since their employee dropped the molten metal onto the furnace oil on the surface of the water. Hypo: B negligently discharges oil; fire is a slight possibility; some small direct damage to A, but no direct damage to C; fire damages A & C. In Wagon Mound 2, both A and C would win, while in Wagon Mound 1 both A & C would lose. In Polemis, only A would win and C would lose.

Are words an assault?

"Words alone" rule: Words alone are not sufficient to constitute an assault. Words must be accompanied by some overt act, no matter how slight, that adds to the threatening character of the words.

IF another tort is attempted, can IIED still be argued?

(1) Emotional distress where other tort attempted: If D attempts to commit some other tort, and the only effect on the plaintiff is emotional distress, the tort of IIED has not occurred. (a) Assault distinguished: If D attempts to commit some intentional tort, and the plaintiff suffers emotional distress in the form of an "apprehension of imminent harmful or offensive contact," the tort of assault has occurred, and the plaintiff can recover for his mental suffering. Similarly for mental distress as the result of battery.

To have the requisite of intent for assault, D must...

(1) Intend to cause the apprehension of contact , or -->Liable if D merely intends to frighten P (2) Intend to cause the contact itself --> Assault does not require a battery to complete it. --> Attempted battery but failed battery -------> Assault if apprehension

Owner of land. Natural vs artificial

(1) Natural hazards (a) Where a hazardous condition exist naturally upon the land, it has almost always been held that the property owner has no duty to remove it or guard against it, even if it poses an unreasonable danger of harm to person outside of the property (i) Most Courts - no duty (liability) upon the landholder to protect persons outside the premises from conditions on the land that arise in the state of nature

What is the general rule about trespassers?

(1) Notion of the duty of care owed to P's who are committing the intentional tort of trespass (2) General Rule (a) The land possessor owes no duty to a trespasser to make the land safe, to warn of dangers on it, to avoid carrying on dangers activities on it, or to protect the trespasser in any other way. (i) Commonly applied to a wide variety of dangerous conditions on the land, including dangerous machinery and defective construction. 1. Landowner immunity extends to the members of his household 2. It does not extend to adjoin land owners 3. Division authority over whether a defendant's using the land by the permission of the owner shares the imunity of the owner toward trespassers a. Thus gratuitous licensees, invitees, and holders of easements have been held liable in some cases and not in others b. Restatement says any persons on the premises who are doing work or creating artificial conditions on behalf of the possessor are subject to the same liability, and entitled to the same immunity, as the possessor.

What is the balancing test?

(1) judge Learned Hand equation (Hand's Equation (a) Liability exists if (b) B < P * L (i) B - the Burden to avoid the risk (ii) P - the Probability that harm will occur (iii) L - the Gravity of the potential injury (c) B > P * L - No liability NEGLIGENCE CALCULATIONS • If B < P*L, then negligence • If B > P*L, then no negligence • If B = P*L, then strict liability (d) Policy reasoning for negligence (e) Law and economics view - when it is cost effective to do something that is beneficial then the law imposes a duty (f) Based on cost of burden (g) Criticism - never know L until after the fact (i) Ex. In Davis car with 4 people v. school bus of children

Artificial hazard

(a) When the hazardous condition is artificially created the owner has a general duty (liability) to prevent an unreasonable risk of harm to person outside the premises (i) Once a landowner alters a condition of his land, it becomes an "artificial " one for the purposes of tort law and the owner must exercise reasonable care for the protection of those outside the premises 1. Ex. Damming a stream, piling sand where the wind may blow it.. 2. May also arise from a condition that appears on the surface, to be a natural one. (ii) This includes not only man-made structures, living things which have been artificially placed on the land (e.g. shrubs), and changes in the physical conditions of the land (e.g. excavations)

What are punitive damages?

(exemplary damages) (1) Recoverable only if D's conduct was outrageous or malicious (2) Recoverable even if no compensatory damages are awarded (3) Not recoverable in ordinary negligence cases

Licensee-->incidental service

(i) A social guest will not become an invitee even by gratuitously doing incidental services (e.g. washing dishes).(a) Nor, generally has the fact that the guest and host have been involved in cultural or fraternal activities been sufficient to make the guest and invitee; (i) A licensee can become an invitee only when he performs activities which are of economic benefit to the land holder (b) Rationale (i) Social guest commonly understand that the owner will not take any special precautions for their safety. 1. The guest understands that he takes the premises on the same footing as the owner. 2. Social guest "generally must take the premises of his host as he finds them."

What are the elements of battery?

1) an intention to cause either a) harmful or offensive contact, or b) imminent apprehension of such contact 2) with person of the other or a third person or an object so connected with the body to be customarily regarded as part of the other's person 3) a harmful contact with the person or the other directly or indirectly results

General requ. of land owner

1. General requirement that landowners exercise "reasonable care to prevent an unreasonable risk of harm" a. General agreement that the landowner is liable for negligence if he knows, or should have known that the tree is defective and fails to take reasonable precautions.

LIcensee-->social guest

(a) A licensee who enters the premises of the owner by permission, but for the licensee's on purposes (i) Goes on another's property for companionship, diversion, or entertainment (b) The main class of person who qualify as licensees. (i) Even though invited by the owner, is not an invitee

Duty of care to invitees

(a) Highest Duty owed by a landholder to person on the premises (b) Duty to exercise reasonable care in keeping the premises reasonably safe for use by the invitee. (c) The duty owed by an occupant to an invitee is one of reasonable care in all the circumstances. (i) Even though the danger is known to the plaintiff, the defendant may be found to be negligent if it is not too difficult to eliminate the danger and he should reasonably anticipate that the plaintiff might still be injured

what is an exception to status being static?

(a) Modern courts have changed the landowner liability (i) Goes to case by case analysis v. actual rule (ii) Courts don't like the traditional rule for no liability for land owners 1. Because landowners might have knowledge a. Ex. i. Common pathways, etc.

Invitee

(a) One who comes on the land for a business purpose (b) Greatest duty of care

Licensee

(a) One who comes on the land with the owners consent as a social guest (i) Not a business visitor (b) Intermediate duty of care

Trespasser

(a) One who has no right at all to be on the land (b) Least duty of care

(a) . Montgomery Ward & Co., Inc. v. Anderson

(a) P was badly injured in a fall while shopping D's store. P's expenses totaled $24,512. P reached an agreement with the medical provider that they would discount the bill by fifty percent. Held, The trial court, denying D's motion, held that the entire original amount was admissible, because the discount was a collateral source. Montgomery Ward & Co., Inc. v. Anderson

(1) Persons Privileged to Enter Irrespective of Landowners Consent

(a) Public Employees or officials do not fit very well in any of the categories that the law has established for the classification of visitors. (i) They are not trespassers, since they are privileged to enter (b) Many courts have still struggled to place public officers and employees within the category of invitees. (i) Some public officers enter for a purpose connected with D's business, and are essential to it, since without them it could not legally be carried on 1. Ex. Sanitary and safety inspectors are commonly held to be invitees 2. Garbage collector, and city water-meter readers (c) On the other had, both firemen and policemen have generally ben held to enter under a bare licensee conferred by the law -firefighter rule (i) Owner does not owe them a duty to inspect the premises or to make the premises reasonably safe (ii) Mot common application is that a firefighter who is injured while on the owners property cannot recover, even if the owner's negligence caused the fire 1. Rational a. Awareness of risk i. Assumption of risk b. No double recovery through workers comp and negligence suit (d) Some courts in abandoning the categories apply a general reasonable care standard

What is the scope of a business visit?

(a) Scope of a business visit: If one goes into a store with a view of then, or at some other time, doing some business with the store, he is an invitee (i) Notion of a general business relationship (ii) P visited D's lunch counter and cigar stand, as he had on many other prior occasions. D loitered for 15-20 minutes, before heading to the back to use the restroom. He stepped into an open trap door in a dark hallway and was injured. Held, P was an invitee (reversed demurrer). Campbell v. Weathers. 1. Those who enter the premises "upon business which concerns the occupier" acquire the name of invitees.

Duty to Licensee

(a) The owner of premises owes a licensee the duty to warn that licensee of any hidden dangers, which are unknown to the guest, of which the owner has knowledge or should have knowledge.

What about a trespasser who's presence has been determined?

(i) From cases of spring guns, the rule developed that the defendant was not allowed to injure the trespasser negligently by an act specifically directed at him 1. From such decisions the rule developed that the defendant is liable for injury to a trespasser for conduct that is "willful or wanton" a. A number of states still hold that there is no liability even to a discovered trespasser unless D's conduct is willful or wanton. 2. The great majority of courts have discarded "willful and wanton" as a limitation, and hold that when the presence of the trespasser is discovered there is a duty to use ordinary care to avoid inuring him by active operations a. This includes machinery already in motion or a warning against it (ii) Duty of reasonable care is triggered when the owner actually learns of the trespasser's presence or is confronted by evidence, which should reasonably lead her to the conclusion that a trespasser is present and in danger. (iii) The defendant will often be able to satisfy her burden of due care merely by warning the trespasser; this will be so where the owner reasonably believes that the trespasser will respond to such a warning 1. An ignored warning does not dispense with the duty

Justification for the rule of trespassers?

(i) Further justifications 1. Hard for owner to anticipate when a trespasser would enter 2. Trespasser assumes the risk 3. Trespasser is contributory negligent or is himself a wrongdoer not entitled to legal protection a. But, wouldn't the last clear chance doctrine impose liability on a negligent landowner who did not take advantage of an opportunity to avoid injury to a trespasser

What about less than substantial certainty?

(i) High likelihood (highly probable), less than sub. Certain, does not make actor liable for intentional tort even though acts may be reckless and may give rise to liability for negligence (ii) Mere knowledge and appreciation of risk - something short of substantial certainty is not intent

(a) Frequent Trespassers On A Limited Area of Land

(i) If the defendant has reason to know then he is required to anticipate the trespassers and to exercise reasonable care in his activities for their protection 1. Ex. The existence of a well-defined path across the land 2. Most frequently been applied in cases of person injured while using a well-traveled path across or along a railroad

Barmore v Elmore

(i) P came to the house of the Ds to conduct masonic business with the father. The son, who had a history of mental illness and violence, approached P with a knife. P ran outside but was caught by the son, who stabbed him multiple times. Held for P, because the defendants did not have knowledge or have reason to have knowledge of the potential harm to the plaintiff, because P and the son and interacted before without incident. Barmore v. Elmore

Sheehan v St Paul D on railroad track

(i) P was walking along D's railroad track, when his foot became stuck. He was unable to free himself. D's train approached and the operators did not see him until the train was almost upon him. P alleges the rail bed was negligently maintained, and that D's employees were negligent. Held for P since D was a trespasser P owed him no duty. Sheehan v. St. Paul & Duluth Ry. Co. 1. P may have owed him a duty once his presence was discovered (one of the exceptions below), but the evidence showed that D's employees met this standard. 2. Court found that the railroad had no constructive knowledge that trespassers were on its land.

(a) Tolerated Intruders

(i) Some say that toleration amounts to permission (ii) In most cases, there mere fact that a railway company or other defendant has failed to take steps to prevent trespassing, which would be burdensome, expensive, and perhaps futile, is not in itself any indication that it consents to the entry

Other duties to a licensee

(i) This duty to warn includes dangers arising from natural conditions 1. Even though such conditions are exempt where owner liability to person outside the premises or to child trespassers is concerned (b) Duty to refrain from injuring his guest willfully or wantonly (c) The duty extends to licensees who are discovered, but to those whose presence might reasonably be anticipated (d) Posted warnings satisfy the duty of care to licensee's (i) (but not to invitees) (e) There is no duty to inspect for unknown dangers as to a licensee (i) Difference between licensee and an invitee (2) In some jurisdictions the licensee category is broken down into tow subgroups (a) Ordinary licensee (b) "Bare" licensee (i) Salesperson, canvassers, and social visitors who "drop in" without an express invitation (ii) The duty owed to "bare" licensees is less than that owed to ordinary licensees (3) HYPO: Bright sunny winter day. It snowed a lot. There's a lot of ice on the owner's front porch, which he knows about. Owner invites his friend over, but does not warn him of the ice. Has the owner satisfied his duty? (a) Yes (i) Visitor does not lack knowledge of the hazard -it's obvious 1. Courts usually draw the line at natural hazards, because everyone in society should be aware of the hazard

(a) Invitees have included all of the following:

(i) Those attending free public meetings (ii) Spectators at public amusements, entering on a free pass (iii) Entering a bank to get change for a $20 (iv) Coming to get things advertised to be given away (v) Use of state or municipal land open to the public (vi) Visitors in national parks

Lubitz v Wells

(∆ left a gold club laying in his yard, one child picked it up and hit another child) Held: A person can be held liable for negligence for leaving an unreasonably dangerous object on D's property where children will play. D here is not negligent bc a golf club is not obviously and intrinsically dangerous.

Hackbart v. Cincinnati Bengals, Inc.

(∏ and ∆ pro football players. ∆ struck ∏ on the back of the head and neck with ∆'s right forearm. ∏ and ∆ returned to sideline and ∏ didn't complain to the officials or anyone he now brings suit against ∆) Holding: A ∏ who engages in a sport objectively consents to contact falling within the known customs of that sport, even if contact that falls within some of the customs is prohibited by the rules of the sport. o Notes: In this case the court found for ∏ because the ∆s contact was not a part of the game and therefore ∏ had a right to plead his case

O'Brien v. Cunard S.S. Co.

(∏ passenger on ∆'s ship. ∏ vaccinated by a doctor on ∆'s ship. P did not resist to the vaccination at the time. Site of vaccination there was in allergic reaction. ∏ sued ∆ for assault.) Holding: Consent is established if ∏'s conduct objectively indicates permission to make contact even if, subjectively, she does not consent.

WHat are important notes from the defense of property case?

*An owner is privileged to use only reasonable force—and never deadly force—to eject trespassers and protect chattels.(majority) (Stricter limitations on the right to defend property than the right to defend one's self.) o Notes from Katko: ♣ A reasonable mistake as to the existence of the privilege will not protect the ∆ in cases of protection of property. ♣ The privilege to defend property is limited to the use of force reasonably necessary to the situation as it appears to the ∆. ♣ When the invasion is peaceful and occurs in the presence of the possessor, the use of any force at all will be unreasonable unless a request has been made to depart. A request does not have to be made, however, when the conduct of the intruder would indicate to a reasonable person that it would be useless or that it could not safely be made in time. ♣ When the invader threatens the personal safety of the ∆ or his family, the ∆ may use deadly force if necessary in the circumstances. ♣ Many jurisdictions have placed the restrictions on the use of deadly force in their state statutory codes. Some statutes and some cases appear to allow the use of deadly force against serious invasions of property, such as burglary. **Assumption of Risk and Contributory Negligence ARE NOT defenses to an intentional tort

Purpose of reading Tallious and Boyd opinions

*Tallios and Boyd provide two contrasting views on the applicability of guest statutes. In Tallios the Court applies the statute more broadly to encompass those guests who suffer injuries during the course of the journey, even though they may not be "riding" at the time. Boyd interprets it more narrowly to include only guests who sustain injuries while riding in the car. Boyd appears to signify the dissatisfaction that the court has with the automobile guest statutes. **Creswell believes Tallios court got it correct.

JUdge made standards (rules of law) (negligence)

-Judge-made standards: Courts, particularly appellate courts, formulate rules which other courts, especially lower courts, abide by. However, when an appellate court attempts to regulate standards of behavior by issuing strict rules, these standards are likely to prove too inflexible, and other courts are not likely to apply them in every situation.

What is an automobile guest statute?

-The use of the expressions "recklessness," "gross negligence" and "willful and wanton conduct" evolved for the most part in connection with statutes providing that the driver of an automobile is liable only from some form of aggravated misconduct to one who is riding as a guest in a car

SD injury to third party

. Injury to 3rd Party: The privilege of self-defense is carried over to transferred intent and a ∆ is not held liable to a 3rd party in the absence of some negligence toward him.

SD: retaliation

. Retaliation: not a defense. When the battery is no longer threatened, the privilege of self-defense terminates. Even if a person initially was an aggressor, once he has retreated he has a right to self-defense against the person he initially threatened.

Essential elements of an action for contribution

1 Essential elements of an action for contribution. Two or more negligent tortfeasors, jointly and severally liable; and 2. Contribution ∏ must have paid the injured party's claim (either by settlement of judgment)

What is p's burden of pleading

1) Burden of Pleading (To go to trial)—to avoid dismissal of the complaint ∏ must allege facts that state a claim against ∆

What are the elements of intentional infliction of emotional distress?

1) The conduct must be intentional or reckless; 2) The conduct must be extreme and outrageous; 3) There must be a causal connection between the wrongful conduct and the emotional distress 4) The emotional distress must be severe.

There are three types of factual situations in which joint and several liability usually is imposed:

1) Tortfeasors acted in concert; 2) Defendants failed to perform a common duty to the plaintiff; 3) Defendants acted independently to cause an indivisible harm. ** This is different from successive negligence which is two acts, each operating independently to produce two distinct injuries.

Negligent Infliction of Mental Distress 2 Types of Cases:

1. "Near miss cases" -typically easier to recover 2. "Bystander Cases"

Effect of warning for invitee

1. A duty to warn about a danger and a duty to take affirmative steps to prevent the danger from causing harm can and often will co-exist as independent forms of the duty to use reasonable care a. The duty to protect is not negated by satisfying the duty to warn b. Torts by third persons (see below) i. Generally there is no duty to protect others form the criminal activities of third persons. ii. The duty only arises under limited circumstances, when the criminal act in question was reasonably foreseeable to the owner of the business

Landowner, taylor v olsen

1. A land owner's duty to inspect the condition of his land is based on whether the defendant took reasonable care, under the particular conditions and amount of land in his possession to inform himself of the condition of his land, provided that there is evidence that an inspection would have disclosed its hazardous condition. a. There must be evidence that the defendant should have been on notice or that the type of inspection that would reveal the hazard is generally the common and ordinary method. i. The duty is not based on a "rural-urban" distinction. b. P was inured when her car struck a tree, originating from D's property, which shortly before had splintered and fallen across the road. P purchased the land on which the tree fell from for logging purposes. P had cut all the trees adjacent to the tree that fell. The tree showed no outward evidence of decay before it fell. Held, for D. Taylor v. Olsen i. This particular defect in the fallen tree could have only been discovered by cutting through the bark and there was no evidence that a reasonable inspection would have included cutting through the bark. ii. D did not have constructive notice of the hazardous condition (no way he could have known)*** iii. Note cross over to Delair v. Macdoo - duty to investigate.

(i) Artificial Conditions Highly Dangerous to Trespassing Children

1. A possessor of land is subject to liability for physical harm to children trespassing thereon cased by an artificial condition upon the land if a. The place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and i. Likelihood of trespass 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 i. Danger 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 i. Child ignorant of risk d. The utility of the possessor of maintain the condition and the burden of eliminating the danger are slight as compared with the risk to the children involved, and e. The possessor fail to exercise reasonable care to eliminate the danger or otherwise to protect the children. i. Lack of reasonable care(i) Note: it is not essential that the child be attracted, lured or enticed on the premises by the thing that injures them But P must show that there is a condition upon the land that would cause the possessor to know or at least have reason to know that children will appear

Sine Qua NOn

1. Causation in Fact A. Sine Qua Non: "But-for" "Substantial Factor Test" The ∆'s conduct is a cause of the event if the event would not have occurred but for that conduct; conversely, the ∆'s conduct is not a cause of the event, if the event would have occurred without it

Two ways of dealing with assump. of risk

1. Conduct of ∏ who is actually aware of risk and voluntarily encounters it is evaluated under comparative negligence.(merger) OR 2. Conduct of ∏ who is actually aware of risk and voluntarily encounters it constitutes a complete bar to recovery

Reasons for vicarious liabilty

1. Duty to hire responsible staff 2. Duty to control activities and insist on safety 3. Employer should bear inherent risks of the business 4. Employer has easier access to the evidence 5. Employer and employee are a "single persona" 6. Employer is able to spread the loss as a cost of doing business

Whelan v. Van Natta

1. P came to D's grocery store, purchased cigarettes and then asked about some boxes for his son. D directed him towards the back storage room. P entered the unlit storage room and fell down a staircase. Held for D, because P had become a licensee. Whelan v. Van Natta a. Once P became a licensee D no longer owed him a duty to provide a safe place. He only had to abstain from doing any intentional or willful act that would endanger his safety or knowingly letting him run upon a hidden peril. i. Key point - the part of the store where he was injured. ii. Policy reasons - Store owner should make the public places in the store the most safe / Storeowner probably wouldn't foresee a customer in the storage room.

duty to inspect for invitee

1. The owner may not impose unreasonable risks of harm on his invitee; even form dangers as to which the owner is unaware. a. The landholder has a duty to inspect her premises for hidden dangers. i. Doesn't have to find all the hidden dangers, just must use reasonable care in making her inspection ii. The landholder may be liable for faulty construction or design, if it poses unreasonable danger to her invitee; even if the condition exited before the owner ever came into ownership or possession of the property.

SL DEFENSES

1. ∏ was not within the scope of the risk for which SL is imposed 2. The damage was the result of a vis major 3. ∏ assumed the risk • That is he subjectively knew of the risk and magnitude and • Voluntarily undertook it, that is there was no reasonable alternatives

What is p's burden of production

2) Burden of Production (For case to go to jury)—to avoid a Directed Verdict for ∆ ∏ must have evidence that makes it reasonable for a jury to find that, more likely than not, ∆ breached a duty (that caused ∏ injury)

Aggravated negligence degree of negligence

2. Degrees of Negligence. The attempted imposition of degrees of negligence by some courts created difficulties in setting any lines of demarcation. This led to a deluge of appeals. Due to the burden on the courts, many jurisdictions did away with the degrees of negligence. Degrees of negligence have largely lost their significance in the common law in both England and the U.S.A. For example, automobile guest statutes occasionally employ the distinction between different degrees of negligence.

What are the three types of cases with no prox cause?

3 Types of cases with no Proximate Cause: ♣ Unforeseeable Consequences ♣ Intervening Acts ♣ Other Policy Reasons

What is p's burden of persuasion

3) Burden of Persuasion (Verdict for ∏)—to gain a verdict from the finder of fact. ∏ must have evidence that convinces the jury that more likely than not ∆ breached a duty (that caused ∏ injury) *Generally speaking, on issues of negligence, only rarely is it appropriate for the judge to direct a verdict in favor of one party over the other on the issue of negligence. Where there is some evidence that a dangerous condition has been present for some time the jury should be consulted to find negligence. "Proof of an accident does not establish ∆'s negligence"

Aggravated negligence willful, wanton, and reckless conduct

3. Willful, wanton, and reckless conduct. "Consists of a deliberate and conscious disregard for a known high degree of probability of harm to another" Recklessness is the deliberate and conscious disregard of a known high degree of probability of harm to another. Recklessness lies between negligence and intentional torts. Recklessness is usually the level of conduct used as the threshold for punitive damages in many jurisdictions and for particular causes of action in others. Gross Negligence is acting without even slight care, taking risk that even slight care would avoid.

What is consent?

: Under the defense of "consent," if P has consented to an intentional interference with his person or property, D will not be liable for that interference. This consent may be either express, or may be implied from P's conduct or from the surrounding circumstances. It is an affirmative defense the D must prove.

What is a breach?

A Breach or failure to conform to certain standards. Breach and Duty are the two elements that make up negligent behavior

What is a duty?

A Duty to use reasonable care, obligation required by law, requiring actor to conform to a certain standard of conduct (plaintiff must show prove duty)

What about transferred intent?

A person intending to commit one intentional tort and in fact commits another is liable for the tort actually committed applies no matter which kinds of torts are involved. -->Talmage intended assault but liable for battery (∏ and other boys playing on roof of shed owned by ∆. ∆ throws stick to scare them. ∆ didn't see ∏ on roof, and ∏ struck in eye by stick thrown by ∆) Where a person commits an intentional act with the intent to harm a person and those intentional actions directly harm an unintended 3rd party, the ∆ can be held liable for an intentional tort for the 3rd parties injuries.)

What is the standard for "offensive contact"?

A reasonable standard, i.e. whether a reasonable person would be offended. The test is objective and changes from case to case. Therefore, not all contact is battery. (Wallace v. P: ∆ was a teacher at school ∏s daughter went to, ∏ went to go to school to drop off something for her daughter, and a fire-drill occurred. ∏ was in the way at the tGop of stairs and claims ∆ pushed her down the stairs in an attempt to get her out of the way, and sues for battery Held: Where the ∆'s touching would not be offensive to an ordinary person not unduly sensitive the ∏ has filed to establish evidence of a battery.)

What is assault?

An assault is the a) unlawful b) intentional c) offer to touch d) the person of another e) in a rude or angry manner f) creating apprehension in person of an imminent battery g) apparent present ability to effectuate the battery

A tort duty arises as a result of a contractual promise:

A. That is breached by nonfeasance if and only if: 1) The promisor is a common carrier or public utility 2) Promisor never intends to carry out promise B. That is breached by misfeasance, except: 1) "waterworks cases"—mass service-provider ∆s 2) Professional service Ks where imposition of a duty would create a conflict of interest (except for things like wills where there is no other plaintiff [Person who wanted will drawn is normally dead by the time the negligence of attorney causes injury to the intended beneficiary]) (Some courts extend will exception to title reports on real property)

SD: Amount of force

Amount of force: the privilege is limited to the use of force that is or reasonably appears to be necessary for protection against a threatened battery. Generally, the ∆ has the burden of proving that the use of force was reasonable under the circumstances, although some jurisdictions shift the burden to the ∏ if the ∆ is a police officer.

What are the five intentional torts?

Assault, Battery, False imprisonment, trespass to chattel, trespass to land

Proximate or Legal Cause

Atlantic Coast Line R. Co. v. Daniels - In this case the court basically states that there needs to be a higher standard for causation than mere cause in fact. Proximate cause is the higher standard. "Cause in fact refers to the cause and effect relationship between the ∆'s tortious conduct and the ∏'s injury or loss. Thus, cause in fact deals with the 'but for' consequences of an act. The ∆'s conduct is a cause of the event if the event would not have occurred but for that conduct. In contrast, proximate cause, or legal cause, concerns a determination of whether legal liability should be imposed where cause in fact has been established. Proximate or legal cause is a policy decision made by the legislature or the courts to deny liability for otherwise actionable conduct based on considerations of logic, common sense, policy, precedent and 'our more or less inadequately expressed ideas of what justice demands or what is administratively possible and convenient."

Self Defense- Existence of Priviledge

Existence of privilege: anyone is privileged to use reasonable force to defend himself against a threatened battery on the part of another. In some jurisdictions, the burden of proof is reversed if the ∆ is a police officer.

Respondeant Superior (vicarious liabiltiy)bussard v minimed

Bussard v. Minimed, Inc. - (∆ hired pest control company to come spray and the next day the smell made many of its employees sick, one had to leave work and on her way home in her ill state hit ∏ who not sues ∆ for vicarious liability) Held: Where an employee becomes unfit to drive at work accidents resulting from their commute home are foreseeable and therefore the employer is not barred from vicarious liability under the coming and going rule. o Notes: Respondent Superior states generally employers are only liable for the actions of their employees if their employees are acting "within the course of their employment" ♣ "Coming and Going Rule" - Commute to and from work is not within the course of employment. This case is an exception to the coming and going rule because the foreseeability test illustrates that the incident was related to her work.

Bartlett v new mexico welding

Bartlett v. New Mexico Welding Supply - (∏ is driving down the road when a car in front of signaled a right hand turn. The lead car turned into and then pulled out of a service station in a very fast motion. ∏ slammed on her brakes to avoid a rear-end collision with the lead car. ∆ was behind ∏, and when ∏ slammed on her brakes ∆ slammed on his brakes as well and slammed into the back of ∏'s car. The lead car left the scene of the accident and is unknown. ∏ sued ∆ for negligence. ∆ contended that the negligence of the unknown driver caused or contributed to cause the accident and resulting damages. The jury found that the unknown driver of the lead car was 70% responsible for the accident and damages. ∏ moved for a judgment to be entered in their favor in the amount of $100,000. Motion was not granted and T/C ordered a new trial. ∆ appealed. A/C awarded ∏ 30% of damages based on ∆ being 30% responsible for accident and damages.) Held: In a comparative negligence case, a concurrent tortfeasor is not liable for the entire damage caused by concurrent tortfeasors, but is instead liable only for the percentage of the damages based on their percentage of fault. (This is the Minority Rule!!)

What are the four intentional torts committed against a person?

Battery, assault, false imprisonment, and intentional infliction of emotional harm.

Joint tortfeasors, race case

Bierczynski v. Rogers - (∆1 and ∆2 engaged in a road race. ∆1's car was in the wrong lane during the race, and both cars were traveling at twice the legal speed. Ahead of them was the car of ∏. As they approached ∏'s car, ∆1 attempted to get back into the right lane. ∆1 lost control of the car and careened sideways in front of ∏'s car. ∆2 remained in the proper lane at all times, and brought his car to a stop in it, about 35 feet from the area of the collision, never coming in contact with ∏'s car. ∏ sued ∆1 and ∆2 alleging concurrent negligence in that they both violated various speed statutes and various other statutory rules of the road, and in that they failed to keep a proper lookout and failed to keep their vehicles under proper control. T/C judgment for ∏ and ∆ appeals, T/C affirmed) Held: Participation in a motor vehicle race on a public highway is an act of concurrent negligence imposing liability on each participant for any injury to a non-participant resulting from the race.

Big Town Nursing Home, Inc. v. Newman (False Imprisonment)

Big Town Nursing Home, Inc. v. Newman (∏ kept at nursing home against his will.) A person who attempts to leave the nursing home where he is staying is falsely imprisoned if they nursing home, without adequate legal justification, refuses to allow the person to leave.

Boyd v Cress (conflict with Tallious)

Boyd v. Cress (Handout) - (∏ is non-paying passenger in ∆'s car. During the course of ∏ and ∆'s destination ∆ stops the car. ∏ exits the car and is standing outside of the stopped vehicle with the car door open. The car rolls back while ∆ is in the driver seat and the door strikes ∏ and injures him. ∏ sues ∆ and T/C rules in favor of ∏ and applies ordinary negligence standard to ∆, claiming that ∏ was not a guest in the automobile at the time. ∆ Appeals, claiming that ∏ was still a guest. Held: In order for an automobile owner to be afforded protection by the automobile guest statute, the passenger riding gratuitously in the owner's car must have been injured during the ride, in the sense that the passenger was in or upon the vehicle at the time the accident happened. o Rule: Protection of the guest statute extends only to injuries suffered "during such ride" in the sense that the P remained in or upon the vehicle at the time of the accident.

Negligence and insanity

Breunig v. American Family Ins. Co. - (∆ driving car and suddenly gets delusional and thinks God is controlling her car and that she can fly like batman. ∆ crashed head on into ∏. ∆ had no knowledge or forewarning that such delusions would strike her while driving. ∏ sued ∆ and won in T/C. Held: Where a ∆ is suddenly overcome without forewarning by a mental disability or disorder which incapacitates him from conforming his conduct to the standards of a reasonable person under like circumstances, then the general rule of insanity does not apply and the ∆ is not liable for negligence. o General Rule: Insanity is no defense, permanently insane people are held liable for their torts. o Notes: The Breunig case provides an exception to the insanity rule, in that if the insane episode is sudden and unexpected, then ∆ may be absolved of liability. Policies for holding insane liable for their own torts: 1) where loss must be borne by one of two innocent persons, the one who caused the loss should bear it; 2) persons interested in the insane ∆'s estate should be induced to restrain and control her; and 3) an insanity defense may lead to false claims of insanity to avoid liability.

Proof of negligence: P's three burdens

Burden of pleading, production, and persuasion

Contr. Neg. Case no. 1

Butterfield v. Forrester - (∆ was making repairs to his house, which was near a road. ∆ placed pole across part of the road, which blocked part of the road, but a free passage was left on the other part of the road. ∏ was riding his horse along the road, when the horse hit the pole, throwing ∏ on the ground and injuring him. Evidence supported a finding that ∏ was riding his horse violently at the time of the accident. T/C judge instructed the jury "that if a person riding with reasonable and ordinary care could have seen and avoided the obstruction; and if they were satisfied that ∏ was riding along the street extremely hard, and without ordinary care, they should find a verdict for ∆." T/C jury found for ∆ and ∏ appealed.) Held: Where both ∏ and ∆ have acted negligently and each is a proximate cause of the injury, ∏ is barred from recovery. o Rule: 1) A party is not to cast himself upon an obstruction which has been made by the fault of another, and avail himself of it, if he do not himself use common and ordinary caution to be in the right. 2) One person being in fault will not dispense with another's using ordinary care.

RIL case, barrel of flour

Byrne v. Boadle - (∏ walking down the street past the ∆'s shop, and a barrel of flour fell on him from a window above ∆'s shop, knocked him down, and seriously injured him. There was no other evidence.) Held: Where the occurrence of an event could not occur without some negligence on the part of the ∆, then res ipsa loquitur creates a presumption that the ∆ was negligent (prima facie evidence) and the ∏ does not have the burden of providing direct evidence that the ∆'s negligent actions caused the event which led to ∏'s injuries. o Rule: *The accident itself affords reasonable evidence of negligence (breach of duty) if: 1) the thing causing injury is under the management of the ∆; and 2) in the ordinary course of events, the accident does not happen without negligence.

What are the two types of causes?

Cause in fact and proximate cause

Strict liabitly

Strict liability: The ∆ must pay damages although the ∆ neither intentionally acted nor failed to live up to the objective standard of reasonable care that traditionally has been at the root of all negligence. "Liability without fault" When Strict Liability is recognized it takes the place of Duty & Breach (DBCI)

Chicago, B & Q.R. Co. v. Krayenbuhl

Chicago, B & Q.R. Co. v. Krayenbuhl - (four year old playing on turntable that was unlocked, it turned and severed off foot at ankle joint) Held: Where dangerous equipment can be made safer with an inexpensive device, not using it is negligence. A ∆ is negligent for failure to institute precautions when the interference and burden caused by such precautions is so slight that it is outweighed by the danger to be anticipated from an omission to institute the precaution. o Rule: The public good requires that proper precautions be taken to guard against injury to other persons when the institution of such precautions have such a slight expense or cause such slight inconvenience that their implementation outweighs the dangers that would result from their omission.

Clagett v. Dacy Highest bidder forclosure suit

Clagett v. Dacy - (∏ was highest bidder at a foreclosure sale, but because the attorneys conduct the sale failed to follow the proper procedures, the sale was set aside. This occurred twice. ∏ lost the opportunity to acquire the land and make a profit on its resale. ∏ sued the attorneys, ∆s, to recover their loss, alleging that the attorneys in question owed them, as bidders, a duty to use care and diligence and to conduct the sale "properly and carefully." Attorney's demurrer was sustained, and the court concluded that no such duty existed—at least one from which an action for damages will arise. A/C affirms that no duty was owed since the ∏s were not the beneficiaries.) Held: Where an attorney is acting in the interests of a client, she owes no duty of care to anyone that the attorney would be barred from simultaneously representing o Notes: The duties or obligations inherent in an attorney-client relationship will not be presumed to flow to a third party and will not be presumed to arise by implication when the effect of such a presumption would be tantamount to a prohibited or improbable employment, absent the clearest exposition of facts from which such an employment may be fairly and rationally inferred. Reason: Attorneys have duty to client, and sometimes interest to third party may not be the same. Attorneys may not act for conflicting interests.*Generally, professional negligence limited to the person who bought the services.

What types of damages are available for torts cases?

Compensatory, Nominal, Punitive

What is negligence?

Conduct that falls below the standard of care established by law for the protection of others against the unreasonable risk of harm. person acts negligently if person does not exercise reasonable care under all circumstances, a person's conduct lacks reasonable care based on the foreseeable likelihood that the person's conduct will result in harm, foreseeable severity of harm & burden of precautions to eliminate or reduce harm.

Coney wrongful death case

Coney v. J.L.G. Industries - (Wrongful death action brought by ∏ as administrator of the estate of V. V died while operating a hydraulic aerial work platform, manufactured by ∆, and the action is based on strict products liability. ∆ argued that V had committed contributory negligence and that his employer had also contributed to V's injuries by failing to provide a "ground-man," and by failing to "instruct and train V on the operation of the platform.") Held: 1) Comparative fault is applicable to strict products liability actions; 2) comparative fault does not eliminate joint and several liability; and 3) retention of joint and several liability does not deny ∆'s equal protection of the laws. o Rule: 1) The common law doctrine of joint and several liability holds joint tortfeasors responsible for the ∏'s entire injury, allowing ∏ to pursue all, some, or one of the tortfeasors responsible for his injury for the full amount of the damages. 2) The vast majority of jurisdictions, however, which have adopted comparative negligence have retained joint and several liability as a part of their comparative negligence doctrine. o Notes: The feasibility of apportioning fault on a comparative basis does not render an indivisible injury "divisible" for purposes of the joint and several liability rule. A concurrent tortfeasor is liable for the whole of an indivisible injury when his negligence is a proximate cause of that damage. In many instances, the negligence of a concurrent tortfeasor may be sufficient by itself to cause the entire loss. The mere fact that it may be possible to assign some percentage figure to the relative culpability of one negligent ∆ as compared to another does not in any way suggest that each 's negligence is not a proximate cause of the entire indivisible injury. o Should we abolish Joint & Several liability? Since we adopted comparative negligence?

What is the knowledge test?

Consequences that are SUBSTANTIALLY CERTAIN to result (Garrot v. Dailey) (5 year old moves chair. ∏ falls and breaks hip.) If ∆ knew with substantial certainty that contact or apprehension would follow from his actions then ∆ can be held liable for battery.

What is contribution?

Contribution: In J&S case ∆ seeking monetary support from others who may be liable to him and ∏.

Defenses Regarding P's COnduct

Contributory Negligence

The emergency doctrine case

Cordas v. Peerless Transportation - (Two men robbed an individual with a pistol. Two men then ran, and the man with the pistol entered a taxi driven by ∆. Villain, pointing the pistol at ∆, told ∆ to drive or lose his brains. As ∆ started driving ∆ decided to leave the vehicle in motion and ∆ did so. As the vehicle continued rolling down the street the cab hopped a side-walk and struck ∏) Held: Where ∆ is suddenly confronted with an emergency not of his own making, that he did not have reason to anticipate, he is not required to exercise mature judgment, he has the standard of acting how a reasonably prudent person would act in like circumstances, not how a RPP would act without an emergency. o Notes: a) B v. PL is about the risk of injury that existed at the time that D conducted himself in an allegedly negligent manner. For example, if in Cordas 25 people would have killed by the runaway car, the court would still have held for the D b/c the B v. PL is about the risk that existed at the time D ejected himself from the moving vehicle. b) There is general agreement that if the emergency is created by the negligence of the actor, the emergency doctrine does not apply. c) D's who act in emergency situations can still be negligent if they did not conduct themselves in a reasonable manner. Emergency does not automatically absolve D from negligence.

Merger case HIllman

Hillman v. Carlton - (∏ was an employee for ∆ and was riding around on the forklifts when one of them malfunctions and dumped him off and he got hurt. ∆ says ∏ assumed the risk by negligently riding around on forklifts.) Held: Where a ∆ is asserting an assumption risk defense and the ∏ only has knowledge of general, non-specific risks that might be associated with his conduct the assumption of risk defense is not enforceable. o Reason: ∏ must be fully and completely aware of dangerous conditions he is encountering. ∏ knew he could fall but his knowledge did not extend to the possibility that because of poor maintenance, the forks would malfunction and dump him on the ground. He was probably comparatively or contributorily negligent though

Near miss case

Daley v. LaCroix - (∆ was traveling west on a road near ∏'s farm when he went off the road and sheared a utility pole cause high voltage lines to snap and cause property damage to ∏s home. ∏ now claims in addition to property damage they suffered emotional disturbance (which caused physical injuries) even though they did not have a physical impact to their bodies) Held: Where a definite and objective physical injury is produced as a natural result of emotional distress proximately caused by ∆'s negligence, the ∏ may recover in damages notwithstanding the absence of a physical impact. o Notes: Physical impact is no longer being used in its traditional sense of physical injury to the ∏, the accident itself may be sufficient for "requirement of impact". o Physical impact with ∏'s body is no longer a requirement for recovery if: i. ∏ has physical consequences of mental distress that are ii. "a natural result of fright" iii. Proximately caused by ∆'s negligence (foreseeable in a normal person)

Last clear chance rule case

Davies v. Mann - (∏ leaves donkey fettered and blocking roadway. ∆'s wagon runs into donkey. Donkey died. At trial the judge told that jury, that though the act of the ∏, in leaving the donkey on the highway so fettered as to prevent his getting out of the way of carriages traveling along it, might be illegal, still, if the proximate cause of the injury was attributable to the want of proper conduct on the part of the driver of the wagon, the action was maintainable against the ∆; and his Lordship directed them, if they thought that the accident might have been avoided by the exercise of ordinary care on the part of the driver, to find for ∏) Held: Where both ∏ and ∆ have acted negligently, but where ∆ has the "last, clear chance" to avoid injury (if he uses due care), ∏ may recover. o Last Clear Chance. Later commentators have rationalized the holding in this case into what has come to be known as the doctrine of last clear chance. As the title indicates, the thought is that if the ∆ had the opportunity to avoid the accident after the opportunity was no longer available to the ∏, the ∆ is the one who should bear the loss. Note that under this doctrine the whole loss is still placed on one party or the other. o Jurisdictions that still use contributory negligence still use the last clear chance doctrine in at least in one of its many forms.

Davison v. Snohomish County

Davison v. Snohomish County - (∏ driving car around curve on the elevated approach to a bridge and the ∏ lost control of the car and the car struck the guard rail and car flies off the road. ∏ and all passengers in the car are seriously injured.) Held: A ∆ is not negligent when their failure to take certain precautions results in injury to P if the precautions necessary to prevent ∏'s injury would have placed an undue economic burden that the public would be unable to bear. o Rule: As a practical proposition, municipalities cannot be required to protect long stretches of roadway with railings or guards capable of preventing an automobile, moving at a rapid rate, from leaving the road if the car be in any way deflected from the roadway proper and propelled against the railing. o Notes on Davidson- * Prosser and Keeton on Torts: "It thus is fundamental that the standard of conduct which is the basis of the law of negligence is usually determined upon a risk-benefit form of analysis: by balancing the risk, in the light of the social value of the interest threatened, and the probability and extent of the harm, against the value of the interest which the actor is seeking to protect, and the expedience of the course pursued. For this reason, it is usually very difficult, and often simply not possible, to reduce negligence to any definite rules; it is 'relative to the need and the occasion,' and conduct which would be proper under some circumstances becomes negligence under others."

De May v. Roberts

De May v. Roberts (∏ is patient and ∆ doctor. ∏ in labor and ∆ goes to ∏'s home. ∆ takes with him a man who is not a doctor. ∏'s husband lets ∆ into the house and ∆'s friend. ∆ and friend go and delivery ∏'s baby. ∏ thought ∆'s friend was a physician or a capable assistant trained in medicine. ∏ sues ∆. ∆ claims consent given by ∏ and ∏'s husband.) Holding: Consent cannot be used as an affirmative defense whenever the consent is obtained through the fraud, deceit, or the failure to disclose facts by the one to whom consent is given. o Consent given under a mistake of fact, is invalid if the ∆ knew or should have known of ∏'s mistake. o Notes from De May: ♣ Consent is ineffective if ∏ incapable of expressing rational will ♣ Informed Consent: The doctrine of "informed consent" requires a physician or surgeon to disclose to the patient the risks of proposed medial or surgical treatment.

Superior knowledge case (RPP)

Delair v. McAdoo - (∆'s car is passing ∏'s car. ∆'s tire blows out causing ∆'s car to swerve and hit ∏'s car. ∆'s tire's had been extremely worn. ∏ sued ∆ and won in T/C.) Held: The law requires drivers and owners of motor vehicles to know the condition of those parts which are likely to become dangerous where the flaws or faults would be disclosed by a reasonable inspection. o Rule: It is imperative that a duty or standard of care be set up that will be productive of safety for other users of the highways. o Notes: Persons who have superior knowledge or training, and who may not even hold themselves out as having superior knowledge, are required to exercise those superior skills to avoid harm to others. For example, if in the Delair case had been a latent defect, but D was an auto mechanic and could have easily discovered the defect, then D would be required to use his skill and knowledge as an auto mechanic to discover the latent defect.

Cases involving intervening acts

Derderian and suzuki

Intervening Cause COntractor case

Derdiarian v. Felix Cont - (∏ is employee of ∆, a subcontractor. ∏ was engaged in sealing a gas main when driver suffered an epileptic seizure and lost consciousness, allowing his vehicle to careen into the work site and strike ∏ with such forces as to throw him into the air. When ∏ landed he was splattered over his face, head, and body with 400 degree boiling hot liquid enamel from a kettle struck by the automobile. ∏ survived and sued ∆ on theory that ∆ had negligently failed to take adequate measures to insure the safety of workers on the excavation site. ∏ won in T/C and ∆ appeals arguing that ∏ was injured in a "freakish accident, brought about solely by [driver's] negligence.") Held: Where the risk of an intervening act occurring is the very same risk which renders the actor negligent then that intervening act may not serve as a matter of law as a superseding cause and relieve the actor of responsibility. o Rule: 1) Where the acts of a third person intervene between the defendant's conduct and the plaintiff's injury, the causal connection is not automatically severed. In such a case, liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant's negligence. If the intervening act is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant's conduct, it may well be a superseding act which breaks the causal nexus. 2) There are certain instances, to be sure, where only one conclusion may be drawn from the established facts and where the question of legal cause may be decided as a matter of law. Those cases generally involved independent intervening acts which operate upon but do not flow from the original negligence. 3) That ∆ could not anticipate the precise manner of the accident or the exact extent of the injuries does not preclude liability as a matter of law where the general risk and character of injuries are foreseeable. o Factors to use in evaluating whether an intervening act is superseding: ♣ Is it a normal and foreseeable consequence of situation caused by ∆'s act? ♣ Is it extraordinary and unforeseeable? ♣ Is it independent or far removed from ∆s conduct? o Intervening criminal acts are superseding unless they are the same hazard ∆ caused with negligence

Dougherty v. Stepp

Dougherty v. Stepp (∆ entered upon land of ∏ with surveyors and chain carriers and surveyed a part of ∏'s land. No actual obvious damage to the land.) Holding: A cause of action for trespass to land will lie whenever a ∆ enters the land of ∏ without ∏'s authorization. o Rule: Every unauthorized, and therefore unlawful entry, into the close of another, is a trespass. o Notes from Dougherty: ♣ negligent trespass does occur, but it is governed by the ordinary rules applicable to negligence actions ♣ ∏ could have cause of action for ejectment if ∆ remained on land unlawfully, and the trespass was not only temporary. ♣ Nominal damages awarded if there are no actual damages.

What are the elements for a cause of action in negligence claims?

Duty. Breach. Cause. Injury

General rule for failure to act and reasons

General rule: There is no duty to act to assist a person in peril. -Reasons for No Duty to Act Rule: 1) liability too great compared to moral culpability 2) difficulty selecting one from many possible ∆s 3) independence of individual places burden of staying safe on ∏ 4) ∆'s failure to act "not really a cause" (in the same sense as action)

Established rules regarding intervening acts

Established Rules Regarding Intervening Acts! 1. Rescue doctrine: *non-reckless rescuer is injured by D's peril *non-reckless rescuer injures imperiled person *non-reckless rescuer injures third person 2. Attempt to escape D's negligently created peril. 3. Negligent medical treatment of negligently caused injury. 4. Second injury from weakened condition.

What is the exception to the reasonable standard of "offensive contact"?

Exception: Where defendant has knowledge of plaintiff's sensitivity (a) No definitive standard - Restatement expressly declines to take a position on this issue (b) Most courts have held that unusual sensitivity that a particular contact is offensive

Foster v. Preston Mill Co (MINK CASE)

Foster v. Preston Mill Co. - (Blasting operations by ∆ frightened a mother mink on ∏'s mink farm and cause mink to kill its kittens. ∏ sues for damage claiming absolute liability because in Washington there is strict liability in blasting cases.) Hold: Where risk of causing harm is not the kind of risk that makes the activity of blasting ultra-hazardous the doctrine of strict liability is inapplicable. o Rule: Strict liability for abnormally dangerous activities is limited to those consequences which lie within the extraordinary risks that make strict liability apply. The proximate cause for strict liability is more narrow the harm must be the harm that is supposed to be protected.

General rule in bailments (lending chattel) and exceptions

General Rule: Lending Chattel property to another does not make the owner responsible for the borrower's negligence in using the chattel, EXCEPT: o Owner consent Statutes: if you drive a car with the owner's permission, you are the owner's agent, but the owner can indemnify themselves against the negligent party o Owner Control Presumption: when the driver and owner are in the car the owner is in control of the drivers actions - (legal fiction intended to insure that there is a source of financial recovery for the injured parties) o Family Purpose Doctrine o Negligent Entrustment: (ex: giving gun to a small child) Contribution will be allowed if there is joint negligence

Gentry v. Douglas Hereford Ranch, Inc.

Gentry v. Douglas Hereford Ranch, Inc. - (∆1 is carrying rifle on shoulder while visiting a ranch owned by his wife's grandmother. While ∆1 is carrying a loaded rifle towards the ranch house he trips on or near the steps to the house and the rifle goes off and fatally wounds V, who is on the deck. ∏, V's widowed husband, sues ∆1 for negligence, and ∆2 (the ranch company owned by the grandmother) for negligently maintaining the deck stairs in a dangerous condition. The stairs were loose and full of clutter and debris. ∆1 declares bankruptcy and is removed from the suit and the suit proceeds against ∆2. In his deposition ∆1 testified that he was not sure why he fell or exactly where he was when he fell and there was no other evidence that the condition of the stairs was a factor in the accident. T/C entered SJ for ∆2.) Held: Where ∏ proves only the possibility that ∆'s negligence was a cause-in-fact, there is insufficient proof as a matter of law. *∏'s Burden of Production (to avoid a Directed Verdict for ∆): o Evidence that makes it reasonable for a jury to conclude, more likely than not, that ∆'s breach of duty caused ∏'s injury. o Rule: 1) Proof of causation is satisfied by proof that a party's conduct was a cause-in-fact of the damage alleged....A party's conduct is a cause-in-fact of an event if "the event would not have occurred but for that conduct; conversely, the defendant's conduct is not a cause of the event, if the event would have occurred without it. o A suspicion, regardless of how particularized it may be, is not sufficient to sustain an action or to defeat a motion for summary judgment. Unsupported conclusory or speculative statements do not raise a genuine issue of material fact. The trial court has no duty to anticipate the possible proof.

Glidden v. Szybiak

Glidden v. Szybiak (∏ is a four-year old girl. ∆ owns store. ∏ went to ∆'s store. ∆ owned dog and dog on front porch of store. ∏ climbed on dog's back and pulled ears playfully. Dog bit ∏) Holding: Where a person engages in the intentional interference with the chattel of a possessor a cause of action for trespass to chattel will not lie unless the interference causes some actual damage to the chattel, the owner, or some other person or thing in which the possessor has a legally protected interest. o Rule: "One who without consensual or other privilege to do so, uses or otherwise intentionally intermeddles with a chattel which is in the possession of another is liable for a trespass of such person if, (a) the chattel is impaired as to its condition, quality or value, or (b) the possessor is deprived of the use of the chattel for a substantial time, or (c) bodily harm is thereby caused to the possessor or harm is caused to some person or thing in which the possessor has a legally protected interest." In comment (f) to clauses (a) and (b), it is pointed out that "the interest of a possessor of a chattel in its inviolability, unlike the similar interest of a possessor of land, is not given legal protection by an action for nominal damages for harmless intermeddlings with the chattel. Sufficient legal protection of the possessor's interest in the mere inviolability of chattel is afforded by his privilege to use reasonable force to protect his possession against even harmless interference." Restatement of the Law of Torts, § 218 *Harmless intermeddling with a chattel, that does not impair its value or deprive the owner of possession, is not trespass to chattel. An owner of chattel does have the right to vindicate exclusive right of possession by the use of reasonable force. o Notes from Glidden: a) Trespass to chattels is now quite universally limited to intentional interferences with them b) Conduct is treated as intentional even though the ∆ acts under an innocent mistake

Proof of negligence (circumstantial evidence) this shit is bananas cases (3 banana cases and one pizza case)

Goddard v. Boston & Maine R.R. Co. - (∏ was a passenger on train, which had just arrived at ∆'s station. ∏ left train and the slipped on a banana peel lying on the ground. There was evidence of many passengers on the platform.) Held: Where injury such as this one occurs the ∆ is expected to exercise ordinary care and there is no evidence that he didn't. o Notes: There was nothing that showed how long the peel had been there, it could have just been dropped. ∏ did not prove that ∆ was negligent. Anjou v. Boston Elevated Railway Co. - (∏ arrived on one of ∆'s rail cars on the upper level of a terminal. ∏ asked one of ∆'s employees for directions to another car. Employee walked along a narrow platform and ∏ followed behind and ∏ slipped and fell on a banana peel and injured herself. There was evidence that banana peel had been there for a considerable amount of time due to the color and other conditions of the peel.) Held: Where a hazardous condition is present for a considerable amount of time then a jury may infer that a ∆ would have seen and removed the hazardous condition if they were reasonably careful then ∆ may be charged with constructive notice of is presence and is negligent for failing to remove it. o Rule: ∆ has a duty to keep his station reasonably safe for passengers. o Notes: In this case there was evidence that the banana peel had been there for a while, unlike in Goddard. Joye v. Great Atlantic and Pacific Tea Co. - (∏ shopping in ∆'s supermarket and slips and falls on a banana. There is no evidence available to determine how long the banana was present on the floor.) Held: Where there is not enough evidence for a jury to determine if the hazard was present for a length of time sufficient to give constructive notice to ∆ of the presence of the hazard, a ∆ will not be held liable for negligence when a ∏'s injuries resulted from the hazardous conditions. o Rule: 1) For a ∆ to be held liable for negligence to a ∏ for injuries sustained as a result of hazardous conditions present on ∆'s premises, ∆ must have either: 1) created the hazard, 2) had actual notice of the hazard, or 3) had constructive notice of the hazard. o Constructive notice-such notice as is implied or imputed by law. That which the law regards as sufficient to give notice and is regarded as a substitute for actual notice. Jasko v. F.W. Woolworth - (∏ slips and falls on piece of pizza in ∆'s store. No evidence ∆ placed pizza on the floor or had knowledge of its presence, or even that pizza was present for a sufficient length of time so that ∆ should have had reasonable time to discover the hazard. ∆ claims that the nature of ∆'s business (selling pizza to customer on wax paper, who eat the paper while standing) was such that conventional notice requirements need not be met. Held: Where the operating methods of a proprietor are such that dangerous conditions are continuous or easily foreseeable, the logical basis of the notice requirement dissolves and actual or constructive notice of the specific condition need not be proved. o Rule: In a situation in which a proprietor's business is of such a nature that there is a reasonable probability that a hazard will be created, it need not be shown that the proprietor had actual or constructive notice of the presence of the hazard. o Notes: Conventional notice requirements spring from the thought that a dangerous condition, when it occurs, is somewhat out of the ordinary. In such a situation the storekeeper is allowed a reasonable time, under the circumstances, to discover and correct the condition, unless it is the direct result of his employees' acts.

Negligence and the professional

Heath v. Swift Wings Inc. - (A wife and son are killed in a plane crash. The plane was piloted by the wife and son's father (F). Estate of wife and son are suing estate of F, and the owner of the airplane. Allegation is that F was negligent in failing to use flaps to aid in the takeoff, and was furthermore negligent in failing to land in a cornfield after takeoff when the plane was having difficulty gaining altitude) Held: Where a person is shown to possess special skill in a particular endeavor then those persons are required to exercise a greater standard of care than that of the ordinary prudent man, and the conduct of such person with the special skills must meet an objective standard that applies to all in the profession regardless of their experience and training. o Rule: There are authorities which support the application of a greater standard of care than that of the ordinary prudent man for persons shown to possess special skill in a particular endeavor. Our courts have long recognized that one who engages in a business, occupation, or profession must exercise the requisite degree of learning, skill, and ability of that calling with reasonable and ordinary care. Even specialists within a profession may be held to a standard of care greater than that required of the general practitioner. The professional standard remains an objective standard. For example, the recognized standard for a physician is established as "the standard of professional competence and care customary in similar communities among physicians engaged in his field of practice." o Notes: a) Skilled trades may need a professional standard. A professional does not have to be doing the activity for money so long as the activity is outside the competence of an ordinary person. b) The standard is expressed in objective form—the knowledge, training and skill (or ability and competence) of an ordinary member of the profession in good standing. "Average" member is incorrect because this would literally mean that half of the members could not meet the standard. c) The professionally usually contracts to render services, but the suit is usually in tort for damage caused by negligence. Law imposes the duty on the professional, not a K. However, if a K provides a guarantee, then it would be enforceable in K law. Without and such a K with a guarantee, the action is in tort. d) Expert testimony-when a professional is engaged in work that is technical in nature—not a matter of "common knowledge"—a jury is not in a position to understand w/o explanation the nature of the work or the application of the standard of care to his work.

Hardy v. LaBelle's (False Imprisonment)

Hardy v. LaBelle's (∏ accused of stealing by ∆ and taken to room where ∏ voluntarily remains) A person is not falsely imprisoned when they willfully and voluntarily go to a room under a false pretense, but after learning that the pretense is false does not attempt to leave and is under no threat of force or otherwise to remain.

Harris v. Jones

Harris v. Jones (∏ stutters a lot. On numerous occasions ∆ makes fun of ∏, mocking ∏ and causing ∏ humiliation and nervousness every time ∆, his co-worker, comes near him. ∏ sues ∆ for intentional infliction of emotional distress) Holding: In determining whether conduct is extreme and outrageous, it should not be considered in a sterile setting, detached from the surroundings in which it occurred, and the personality of the individual to whom the misconduct is directed is also a factor. o There was not sufficient evidence in this case to establish that the ∏ suffered "severe" emotional stress because some of his stress was pre-existing and there was insufficient evidence to demonstrate just how much worse the humiliation made his conditions. o Notes from Harris: a) Mere solicitation of a woman to illicit intercourse is not an assault, nor does it give rise to any other cause of action. b) Courts are reluctant to subject either internal family disputes or petty but strongly felt antagonisms to the sanctions of tort law. However, when conduct exceeds all bounds of behavior tolerated by society, courts are likely to find that a claim has been stated. c) Reasonable attempts to collect a debt lead to no liability, even though they may be expected to, and do, cause serious mental distress. d) Sometimes pregnant women afforded special protection e) Other physical conditions that affect P may be taken into account when D is aware of them. f) Sometimes D's who consciously humiliate hypersensitive or idiosyncratic P's can be held liable.

Failure to act: case against university

Hegel v. Langsam - (∏,parent of a 17 year old student, at ∆ University, alleges that ∆ permitted ∏ to become associated with criminals, to be seduced, to become a drug user and further allowed her to be absent from her dormitory and failed to return her to her parents' custody on demand. ∏ loses.) o Rule: We know of no requirement of the law and none has been cited to use placing on a university or its employees any duty to regulate the private lives of their students, to control their comings and goings and to supervise their associations.

Hill v. Edmonds Concurrent causes

Hill v. Edmonds - (∏ is a passenger in a car driven by ∆1. ∆2 was the driver of a tractor truck and on a stormy night ∆2 left it parked in the middle of the road without lights. Car of ∏ and ∆1 crashed into the rear of ∆2's vehicle. At trial there was evidence that ∆1 was negligent for crashing into ∆2, but there was also evidence that ∆2 was negligent for leaving the car left parked in the middle of the road.) Held: Where separate acts of negligence combine to produce directly a single injury each tortfeasor is responsible for the entire result, even though his act alone might not have caused it.

Negligence and attorneys/malpractice

Hodges v. Carter - (∏ had fire insurance on his business. ∏'s building burned down, and ∏ had ∆ (attorneys) institute action to recover. ∆ mails each summons and complaint to the Commissioner of Insurance for the state of NC. Commissioner accepted the service of summons by mail. Insurance companies moved to dismiss action on basis that the Insurance Commissioner did not have the authority to accept service by mail, and could only accept service in person. T/C held that this was not important and judgment for the business owner. Insurance companies appealed and T/C reversed. ∏ instituted this action claiming that his attorneys were negligent in prosecuting the actions. Held: An attorney is answerable in damages for any loss to his client which proximately results from a want of that degree of knowledge and skill ordinarily possessed by others of his profession similarly situated, or from the omission to use reasonable care and diligence, or from the failure to exercise in good faith his best judgment in attending to the litigation committed to his care. o Rule (Creswell Says Worth Memorizing): When an attorney engages in the practice of the law and contracts to prosecute an action on behalf of his client, he impliedly represents that (1) he possesses the requisite degree of learning, skill, and ability necessary to the practice of his profession and which others similarly situated ordinarily possess; (2) he will exert his best judgment in the prosecution of the litigation entrusted to him; and (3) he will exercise reasonable and ordinary care and diligence in the use of his skill and in the application of his knowledge to his client's cause. Notes: a) P must show in that attorney's negligence was the proximate cause and that "but for" the attorney's actions, the P would have been successful. b) Possession of knowledge or skill-professionals are not expected to know everything, just what the ordinary member of the profession does. c) Exercise of Best Judgment-"good faith" not negligent. subjective standard. d) Use of Due Care-this element describes steps that are mechanical rather than discretionary and hence b/c such steps implicate no professional judgment, courts are more willing to find liability. An example of negligence for failure to use due care would be an attorney who fails to file suit before the running of the statute of limitations. If it can

What is a cause?

I. Causation: reasonably close causal connection between conduct and resulting injury

What damages are awarded in negligence claims?

I. Damages awarded are only to compensate ∏ for his injuries. Punitive damages do not apply to negligence

What does the Restatement of Torts say about the character of the actor's intention?

In order that an act may be done with the intention of bringing about a harmful or offensive contact or an apprehension thereof to a particular person, either the other or a third person, the act must be done for the purpose of causing the contact or apprehension or knowledge on the part of the actor that such contact or apprehension is substantially certain to be produced."

Unfor. Consequ. Polemis

In re Arbitration Between Polemis and Furness, Withy & Co., Ltd - (∏ chartered vessel to ∆s to carry a cargo. Included in the cargo was flammable petroleum. While ∆ was unloading the cargo at the end of the journey, the ∆s negligently dropped a plank into the cargo hold. The dropping plank caused a spark. The spark ignited the flammable petroleum and the P's ship was destroyed by fire. ∏ sued ∆ and won in T/C and ∆ appeals claiming that the damage was too remote from the negligence.) Held: The unforeseeable nature (type or extent) of ∏'s damage is no defense so long as: 1) some damage is foreseeable, and 2) the actual damage is directly caused by D's act (not due to independent causes). o Rule: If the act would or might probably cause damage, the fact that the damage it in fact causes is not the kind of damage one would expect is immaterial, so long as the damage is in fact directly traceable to the negligent act, and not due to the operation of independent causes having no connection with the negligent act, except that they could not avoid its results. o *Tortfeasor must have been able to foresee some type of damage in order for there to be a breach of duty in the first place. o Students Tasks for Proximate Cause ♣ Identify cases where proximate cause is at issue. ♣ Separate the "slam dunks" from the "questionable outcomes." ♣ Know tests and labels. ♣ Be able to argue facts (as well as policy). ♣ Be able to tie in Directed Verdict standard—i.e., judge or jury decides?

What is indemnity?

Indemnity: ∆ seeking full payment for the judgment from someone else because they were negligent not ∆.

What about indirect contact?

Indirect Contact: It is not necessary that the defendant touch the plaintiff with his own body. It is sufficient if he cause the contact indirectly i) Ordering dog to attack ii) Having another eat an allergen laced food

What is the scope of liability for tortfeasors?

Intentional tortfeasor will be liable for virtually every result stemming directly or even somewhat indirectly from his conduct.

What is the imminent factor of threatened contact?

It must be imminent. Threats of the future do not count but could count for intentional infliction of emotional harm. D must have the present ability to commit the harm.

Young girl and sexual assault case

J.S. & M.S. v. R.T.H. - (Two young girls, ∏s would frequently visit the home of their neighbors and spend time with one of them who was an older man and his horses. The old man sexually abused the girls for many years. ∏s now sue the man and his wife claiming the wife's negligence made her liable for their injuries.) Held: Where a spouse has actual knowledge or reason to know of the likelihood of his or her spouse engaging in sexual abusive behavior against a particular person or persons a spouse has a duty of care to take responsible steps to prevent of warn of the harm, a breach of this duty constitutes proximate cause of the resulting injury. o Notes: In determining if there is a duty factors such as particularized foreseeability, comparative interests, relationship of the parties, public policy and fairness must be taken into account.

Parvi v. City of Kingston (False imprisonment)

Parvi v. City of Kingston (police take drunk man to area to sober up. Drunk hit by car walking down road after police drop him off.) A person can bring an action for false imprisonment if they have no recollection of the alleged false imprisonment so long as it can be shown that the ∏ was conscious of the confinement at the time that it occurred.

Defense of property:Katko v. Briney

Katko v. Briney (∆ owned an unoccupied house that had been broken into numerous times. House was boarded up and no trespassing signs were placed around the outside. ∆, tired of break-ins, rigged a spring gun to the door of one of the bedrooms so that whoever opened the door would be shot in the leg. ∏ broke into house and was shot in the leg by the spring gun.) Holding: An owner may not protect personal property in an unoccupied building against trespassers and thieves by the use of a deadly mechanical device as a weapon capable of inflicting death or serious injury.

Public Policy Case Kelly

Kelly v. Gwinnell - (∆1 a guest at home of ∆2, and ∆1 drinks and gets drunk. ∆1 leaves ∆2's house in a car, without interference from ∆2, and has car accident with ∏. P sues ∆1 and ∆2. ∆2 files motion for SJ and granted, and ∏ appeals.) Held: Where a host who serves liquor to an adult social guest, knowing both that the guest is intoxicated and that he will thereafter be operating a motor vehicle, is liable for injuries inflicted on a third party as a result of the negligent operation of a motor vehicle by the adult guest when such negligence is caused by the intoxication. (Minority Rule) o Rule: 1) "Negligence is tested by whether the reasonably prudent person at the time and place should recognize and foresee an unreasonable risk or likelihood of harm or danger to others." 2) "A tortfeasor is generally held answerable for the injuries which result in the ordinary course of events from his negligence and it is generally sufficient if his negligent conduct was a substantial factor in bringing about the injuries." o The court held this way because 1. ∏'s injury was foreseeable 2. A strong state policy against drunk driving 3. Added assurance for recovery of victims of drunk driving 4. Added deterrence 5. Trends of prior cases. The dissent is much stronger and a majority fail to enforce liability on a social host.

Knell v FEltman

Knell v. Feltman - (∏ was guest passenger in a car owned and operated by ∆1. ∆1's car collided with a taxicab owned by ∆2 and operated by one of ∆2's employees, as a result of which ∏ was seriously injured. ∏ sued ∆2 to recover damages. ∆2 filed a third-party claim against ∆1 asserting that the collision was caused by the contributing or sole negligence of ∆1. Jury found that both ∆2's employee and ∆1 were negligent, that the negligence of each contributed to the collision, and that ∏'s damages were $11,500. Court then awarded judgment in favor of ∏ against ∆2 for $11,500, and upon payment of this by ∆1, judgment in favor of ∆2 against ∆1 for $5,750.) Held: Where a tort is committed by the concurrent negligence of two or more persons who are not intentional wrongdoers, contribution should be enforced; that a joint judgment against such tort-feasors is not a prerequisite to contribution between them, and it is immaterial whether they were, or any of them was, personally negligent. (Contribution not enforced between two concurrent intentional tortfeasors)

Kramer Service, Inc. v. Wilkins

Kramer Service, Inc. v. Wilkins - (∏ gets cut on his head from falling piece of broken glass in ∆'s hotel. The injury doesn't heal, and two years later ∏ learns that a skin cancer has developed at the point of injury. At trial, two medical experts testified. One stated that there was a remote possibility that a skin cancer could develop from such a wound, while the other testified that there was absolutely no causal connection between ∏'s injuries and the cancer.) Held: Where the issue is one which lies wholly beyond the range of the experience or observation of laymen and of which they can have no appreciable knowledge, courts and juries must of necessity depend upon and accept the undisputed testimony of reputable specialists, else there would be no substantial foundation upon which to rest a conclusion. o Rule: Proof that a past event possibly happened, or that a certain result was possibly caused by a past event, is not sufficient, in probative force to take the question to a jury. It is not enough that negligence of one person and injury to another coexisted, but the injury must have been caused by the negligence. o "post hoc ergo propter hoc"- "after this therefore because of this" coming to a conclusion solely based on the order of events, it only focuses on possibilities and does not have a good foundation. This court strikes down this idea that is proposed by ∏.

Little boy finger in escalator case

L.S. Ayers & Co. v. Hicks - (∏, a six year old boy, accompanied his mother to ∆'s department store while she was shopping. ∏ fell, and got his fingers caught in ∆'s escalator. ∆ unreasonably delayed stopping the escalator, as a result of which ∏'s injuries were aggravated. T/C judgment for ∏ and ∆ appeals. The court in this case reversed the judgment b/c the ∏ was only entitled to recover for an aggravation of his injuries, and the jury should have been limited and restricted in assessing the damages to the injures that were the proximate result of the ∆'s actionable negligence.) Held: Where a business invitee is injured by an instrumentality under control of the ∆ (invitor) and is made helpless, ∆ has a duty of due care to assist ∏.

RIL falling chair from party window case

Larson v. St. Francis Hotel - (During celebration in San Francisco walking on sidewalk next to hotel ∏ was struck on the head by a chair that fell from above. There were a number of people in the vicinity, but no one appears to have seen from whence the chair came. It is a reasonable, inference, however, that the chair came from some portion of the hotel. At trial ∏ sued ∆, relying on the doctrine of res ipsa loquitur. T/C granted ∆'s motion for nonsuit.) Held: Where the cause of the injury is shown to be under the exclusive control and management of the ∆ RIL may apply, but can have no application to a case having a divided responsibility where an unexplained accident may have been attributable to one of several causes, for some of which the ∆ is not responsible, and when it appears that the injury was caused by one of the two causes for one of which ∆ is responsible but not for the other, ∏ must fail, if the evidence does not shown that the injury was the result of the former cause, or leaves it as probable that it was caused by one or the other.

MacPherson v. Buick Motor Co

MacPherson v. Buick Motor Co. - (∆ is manufacturer of automobiles. It sold a car to a retail dealer. The dealer then sold to the ∏. While the ∏ was in the car it suddenly collapsed. ∏ was thrown out and injured. One of the wheels was made of defective wood, and its spokes crumbled into fragments. The wheel was not made by the ∆; it was bought from another manufacturer. There is evidence, however, that its defects could have been discovered by reasonable inspection, and that inspection was omitted. ∏ charging that ∆ was negligent.) Held: Where the nature of a product is such that it is reasonably certain to place life and limb in peril when negligently made, and the manufacturer has knowledge that the product will be used by persons other than the purchaser, then the manufacturer of this product is under a duty to make it carefully. *The manufacturer of a product owes a duty of reasonable care to the retail buyer IF: a) the product is reasonably certain to be dangerous if negligently made, and that danger extends to persons other than the purchaser, b) it is known that the product will be used by persons other than the buyer, and c) it is known that the product will be used without new tests. ***Today there is a general duty of due care by manufacturer to retail buyer.

o 2 concurrently negligent ∆s, jointly and severally liable to ∏. One of the ∆s pays ∏'s judgment:

Majority Rule-contribution is allowed Minority A-contribution only if a joint judgment against both ∆s Minority B-no contribution.

Malchose v. Kalfell

Malchose v. Kalfell - (∆ hit ∏s care during a car accident, ∆ was driving a car titled in the names of both of his parents. ∏ sued both ∆ and his parents for damages under the family care doctrine. T.C. found for ∏ under the family care doctrine) Held: Where finders of fact determine family car doctrine applies parents are vicariously liable for damage caused by the adult child.

Maloney v. Rath

Maloney v. Rath - (Brakes fail on car after ∆ took car to see mechanic, why isn't mechanic vicariously liable?) Mechanic is negligent independent contractor, so generally she wouldn't be liable for his negligence, but the NON-Delegable duties exception applies to making sure the car was in working order. o Non - delegable duty: one who carries on an activity which threatens a grave risk of serious bodily harm or death unless the instrumentalities used are carefully maintained or one who by statute or administrative regulation is under a duty to provide specific safeguards for protection of the general public

Husband and wife driving buggy case

Martin v. Herzog - (∏ and husband driving in a buggy after dark with no lights. ∏ struck by ∆'s automobile and ∏'s husband killed. ∏ sues ∆ claiming ∆ was negligent. ∆ Claims ∏ was contributorily negligent for failing to have lights on after dark. T/J instructed jury that ∏'s failure to have lights on after dark was only some evidence of negligence, but not conclusive (this was incorrecto). Held: Unauthorized violation of a statute is more than mere evidence of negligence. It is negligence per se. o Rule: The unexcused omission of the statutory signals is more than some evidence of negligence. It is negligence in itself. o Notes: *When the judge decides to substitute a statute for the RPP standard of conduct, an unexcused violation of the statute is either: A. negligence per se (i.e., conclusive evidence of breach of duty that the judge will instruct the jury they must find) Majority view B. Creates a presumption of negligence aka prima facie negligence (that the jury cannot disregard) Minority, or C. Is some evidence of negligence that the jury may take as strongly or lightly as it sees fit (a very small minority of jurisdictions) Minority.

Unfor. Consequ. Alcohol withdrawel case

McCahill v. NY Transp. Co. (Handout) - (One of ∆'s taxicabs strikes ∏'s intestate. ∏ dies two days later from delirium tremens, a potentially fatal form of alcohol withdrawal. A physician testified that intestate rapidly developed delirium tremens after being brought to the hospital, and the physician stated that he could say with reasonable certainty that the injury precipitated intestate's attack of delirium tremens. However, it is undisputed that the injuries caused by ∆'s taxicab could not have led to delirium tremens except for the pre-existing alcoholic condition of intestate. ∆ claims he should not be liable for intestate's death since the injuries that led to intestate's death would not have occurred had intestate been in a normal condition, and also, intestate's alcoholism might have caused death at a later date even if ∆ had not injured him.) Held: Where the diseased condition of a ∏ is forwarded and hastened by the ∆'s negligent acts, and the ∆'s acts prematurely caused ∏'s death, then the ∆ may not use the ∏'s illness and probability of later death as a defense, but the court may use the probability of later death in fixing damages. o Rule: One who has negligently forwarded a diseased condition, and thereby hastened and prematurely caused death, cannot escape responsibility, even though the disease probably would have resulted in death at a later time. o Notes: The ∆ takes the ∏ as he finds him "Thin Skull Rule" this allows those with physical infirmities to live safely, it doesn't matter if the result wouldn't have happened to a "normal ∏"

Rescue Doctrine Case McCoy

McCoy v. American Suzuki Motor corp. - (∏ is driving behind ∆2. ∆2 is driver of a Suzuki Samurai. ∆2 swerved off the roadway and rolled and ∏ stopped to render assistance. ∆2 was seriously injured. Short time later the police and other rescuers arrived. A state trooper who arrived on the scene asked ∏ to place flares on the roadway to warn approaching vehicles. After two hours the accident scene began to clear and ∏ began to walk back on the shoulder of the highway to his car. ∏ was struck from behind by a hit-and-run driver. ∏ and his wife sues the driver, ∆2, of the car, the passenger of the car, the State for the negligence of the trooper, and Suzuki for its allegedly defective samurai which allegedly caused the wreck in the first place. The Sup. Court in this case only considers ∏'s claim against Suzuki. At T/C Suzuki moved for SJ asserting: 1) the rescue doctrine does not apply to product liability actions; and 2) even if it does, ∏ must still, but cannot, prove Suzuki proximately caused his injuries. The T/C found the rescue doctrine applies to product liability actions but concluded any alleged defect in the Suzuki was not the proximate cause of ∏'s injuries and granted SJ for dismissal. ∏ appealed to A/C and A/C reversed finding the RD does apply in product liability actions, but that an injured rescuer need not prove the ∆ proximately caused the injures, but only that ∆ proximately caused the danger and that the rescuer was injured while rescuing. Sup. Court determines that A/C right about RD applying to product liability actions, but wrong to state ∏ only needed to prove ∆ proximately caused the danger. ∏ must prove that ∆ proximately caused his injuries, but also that T/C wrong to grant SJ b/c the question of proximate cause of the injuries should have gone to the jury.) Held: Where a manufacturer's negligence results in a defective product causing imminent peril to a person to be rescued, and the rescuer of the person to be rescued is injured in the rescue, then the Rescue Doctrine may apply to allow the rescuer to sue the manufacturer of the product which created the peril, but the rescuer must still show that the manufacturer was the proximate cause of his injuries and not just the proximate cause of the danger. o Rule of the Rescue Doctrine! For the Rescue Doctrine to apply, the rescuer must demonstrate: 1) the ∆ was negligent to the person rescued; 2) the peril or appearance of peril was imminent; 3) a reasonably prudent person would have concluded such peril or appearance of peril existed; and 4) the rescuer acted with reasonable care in effectuating the rescue. o Notes: Two functions of the Rescue Doctrine: 1) It informs a tort-feasor it is foreseeable a rescuer will come to the aid of the person imperiled by the tort-feasor's actions, and, therefore, the tort-feasor owes the rescuer a duty similar to the duty he owes the person he imperils. 2) The rescue doctrine negates the presumption that the rescuer assumed the risk of injury when he knowingly undertook the dangerous rescue, so long as he does not act rashly or recklessly. (Rescuers should not be barred from bringing suit for knowingly placing themselves in danger to undertake a rescue.) This Encourages Rescuers!

RIL Case spare tire

McDougald v. Perry - (∏ driving behind ∆'s trailer on the highway. As ∆ drove over some RR tracks, the 130lbs. spare tire came out from underneath the trailer and fell to the ground. The trailer's rear tires then ran over the spare, causing the spare to bounce into the air and collide with the windshield of ∏'s car. ∆ testified that a chain secured the spare and that he believed the chain to be the original chain that came with the trailer in 1969. ∆ testified that he inspected the chain before driving, but admitted he did not check every link. T/C judge instructed the jury on the doctrine of res ipsa loquitur and verdict for ∏.) Held: Where an accident occurs, which on the basis of common experience and as a matter of general knowledge, would not occur but for the failure to exercise reasonable care by the person who had control of the object which caused the accident, then the doctrine of res ipsa loquitur applies and there is an inference that the ∆ was negligent. o Notes: ∏ in this case is not required to eliminate with certainty all other possible causes or inferences...all that is required is evidence that it is more likely there was negligence associated with the cause of event than there was not.

Comparative neg. case

McIntyre v. Balentine - (∏ and ∆ were involved in a motor vehicle accident resulting in severe injuries to ∏. As ∆ was traveling south on a highway, ∏ entered the highway. Shortly after entering the highway ∏'s car was struck by ∆'s tractor-trailer. Both men had consumed alcohol the evening of the accident. ∏'s blood alcohol level was .17 percent by weight. Testimony suggested that ∆ was traveling in excess of the posted speed limit. ∏ brought a negligence action against ∆. ∆ answered that ∏ was contributorily negligent, in part due to operating his vehicle while intoxicated. T/C judgment for D and affirmed in A/C. Tennessee did not have system of comparative fault at time. ∏ appealed to Tennessee Supreme Court. Holding: Where a ∏ is injured and both the ∏ and the ∆ were negligent, then the ∏ may recover so long as the ∏'s negligence remains less than the ∆'s negligence (>49%); in such a case, ∏'s damages are to be reduced in proportion to the percentage of the total negligence attributable to the ∏. (Majority) o Rule: 1) One person being in fault will not dispense with another's using ordinary care. 2) Entrenched in Tennessee jurisprudence are exceptions to the general all-or-nothing rule of contributory negligence: contributory negligence does not absolutely bar recovery when ∆'s conduct was intentional; where ∆'s conduct was grossly negligent; where the ∆ has the "last clear chance" with which, through the exercise of ordinary care, to avoid ∏'s injury; or where ∏'s negligence may be classified as "remote." 3) It is time to abandon the outmoded and unjust common law doctrine of contributory negligence and adopt in its place a system of comparative fault.

Miller v civil constructor

Miller v. Civil Constructors, Inc. - ( ∏ was injured when a stray bullet ricocheted during the course of firearm practice in a nearby gravel pit and caused him to fall from a truck. ∏ sued the owners of the gravel pit and the employer of the police officers engaged in firearm practice, claiming strict liability for "ultra-hazardous" activity) Hold: Where the risk of harm can be eliminated by use of reasonable care the type of activity is not ultra-hazardous therefore the doctrine of strict liability does not apply. o Strict Liability for abnormally dangerous activities is limited to those consequences which lie within the extraordinary risks that make strict liability apply.

Misfeasance

Misfeasance: Where the ∆ misperforms the contract, the possibility of recovery in tort is greatly augmented and ∆ may be liable to those who may be foreseeably affected by the misfeasance.

Mohr v. Williams

Mohr v. Williams (∏ needs surgery on right ear. ∆ goes to perform surgery, but before surgery, while ∏ was unconscious under anesthetic, ∆ inspected the right ear and determine that it was not badly in need to surgery, but instead that the left ear was more diseased. ∆ operated on ∏'s left ear without ∏'s consent. ∏ sued ∆ for battery and in T/C was awarded appx, $14,000.) Holding: When a ∏ consents to a surgical procedure for a particular condition, the ∏ does not consent to other procedures for other conditions that the doctor discovers during the course of the initial surgical procedure unless the other procedures for the newly discovered conditions are necessary to prevent serious imminent injury to the ∏ o Rule: The patient must be consulted, and his consent given, before a physician may operate upon him. Reasonable latitude must, however, be allowed the physician in a particular case; and we would not law down any rule which would unreasonably interfere with the exercise of his discretion, or prevent him from taking such measures as his judgment dictated for the welfare of the patient in a case of emergency.

Negligence.informed consent and disclosure of conflict of interest

Moore v. The Regents of University of California - (∆ was physician of ∏, who had cancer. ∆ recommended certain courses of treatment to ∏. ∆, unbeknownst to ∏, discovered that ∏ had cells that were unusually useful in the genetic research ∆ was performing. ∆ developed and patented a cell line from ∏'s cells and then licensed it from commercial development. During the time ∆ was treating ∏, ∆ did not disclose these personal and economic interests to ∏. ∏ brought suit against ∆ on numerous grounds. Held: A physician who is seeking a patient's consent for a medical procedure must, in order to satisfy his fiduciary duty and to obtain the patient's informed consent, disclose personal interests unrelated to the patient's health, whether research or economic, that may affect his medical judgment. o Rule: 1) A physician must disclose personal interests unrelated to the patient's health, whether research or economic, that may affect the physician's professional judgment; and 2) a physician's failure to disclose such interests may give rise to a cause of action for performing medical procedures without informed consent or breach of fiduciary duty. o *A physician has a duty to disclose possible conflicts of interest in seeking P's consent to medical treatment. Physician's own interests are material to the patients decision, and thus, a prerequisite to informed consent o Three Principles: ♣ An adult has the right to control his own body ♣ Consent is only effective if it is informed consent ♣ The doctor must tell you about everything that is material to you decision to give consent

Negligence and Locality rule vs national standard

Morrison v. MacNamara - (∏ is have a medical procedure performed by ∆. During the procedure ∏ fainted and struck his head on the floor. ∏ sued ∆. At trial, an expert witness from another state (MI) testified that it was "the national standard of care" for people undergoing this particular procedure to lie down during the procedure, since it could cause one to faint. T/C refused to allow this testimony, holding that expert witnesses in medical malpractice cases must come from the same community. ∆ presented expert testimony from their own locality to show that ∆'s conduct was in line with the standard of care for that community.) Held: Board certified physicians, hospitals, medical laboratories, and other health care providers are held to a standard of care that is measured by the national standard. o Rule: We are in general agreement w/ those courts which have adopted a national standard of care. Varying geographical standards of care are no longer valid in view of the uniform standards of proficiency established by national board certification. o Notes: a) Locality rule is peculiar to the medical profession. This "strict locality rule" apparently arose in the days in which medical education was not standardized and there was wide variance in the knowledge and skill of doctors in different parts of the country, particularly b/w rural and urban areas. b) Critics charged that the strict locality rule reinforced the status quo of care in a given community, served as a disincentive for the elevation of the standard of care, and sometimes made it difficult for the ∏ to locate an expert witness b/c physicians w/in the same community were reluctance to testify against each other. Most jurisdictions have adopted a "similar community in similar circumstances" test, which is designed to balance the need to avoid evaluating a general practitioner in a rural area by the same standards as a specialist in an urban teaching hospital with the need of the P for access to expert testimony. Problem w/ similar community rule, however, is determining what communities are similar. c) Abolition of the strict locality rule has been particularly common where the ∆ is a specialist.

What about unreasonable apprehension?

Most courts have held unusually timid plaintiff may not recover for assault where a normal person would not have an apprehension of contact (a) Restatement view: As long as D intends to put the plaintiff in apprehension, and succeeds, there is an assault; regardless of what the reasonable ordinary person would feel

. Independent Contractors Murrell v. Goertz

Murrell v. Goertz - (∆ delivered ∏s newspaper and while delivering got in an argument with ∏ and hit her causing injury while resulted in hospitalization, ∏ now sues ∆ and newspaper ∆ works for. Newspaper does not even know ∆ works for them as ∆ has contract just to deliver with someone else who works for newspaper.) Held: Where an employee performs services for another according to his own methods and manner he is an independent contractor and the business he performs for therefore cannot be vicariously liable for damages he causes.

Must one be physically touched in order for it to constitute an assault?

No. I de S et ux. v. W de S (∆ goes to tavern where ∏ works. Tavern closed. ∆ gets angry and bangs on door with hatchet and swings at ∏ fearful.) Rule: Where ∆'s actions cause ∏ to reasonably apprehend imminent offensive touching, it is assault, even if ∆ could not actually touch.

Defense of others: Nature of priviledge

Nature of privilege: reasonable force necessary. Generally the protection involves that of family members.

What are the six types of negligence cases?

Negligence generally, RPP, Negligence Per Se, Res Ipsa Loquitor, Common Law negligence, and gross negligence

Does ignorance of the law negates intent?

No. Ignorance of the law is no excuse. It does not matter that D did not know his actions were a tort.

Ney v. Yellow Cab Co.

Ney v. Yellow Cab Co. - (∏ charged that ∆ negligently permitted its taxicab to remain unattended on the street without stopping the ignition or locking the ignition or removing the keys, contrary to said act. A thief stole the taxi belonging to ∆ and while in flight ran into ∏'s car, causing property damage. ∆ claims that ∆'s actions did not constitute actionable negligence, nor the proximate cause of the damage. ∏ contends that ∆'s violation of the statute was negligence and the proximate cause of the damage. The statue read that "any person driving or in charge of a motor vehicle shall permit it to stand unattended...without removing the key from the ignition." Furthermore, ∆ contends that the statute is not an antitheft measure, but a traffic regulation. ∏, however, contends that the statute is a safety statute for the benefit of the public.) Held: Where the intent of the legislature in enacting a statute is for the protection of the public from the conduct that is prohibited in the statute, then the violation of such a statute by a ∆, which is the proximate cause of an injury to ∏, will lead to the ∆ being held negligent per se. o The motivation behind the legislature's enactment of the statute is in the interest in public welfare for protection of life, limb, and property by prevention of recognized hazards. o The injury must have a direct and proximate connection with the violation of the statute before liability will be held to exist. o Wrongful acts of independent third persons, not actually intended by the D, are not regarded by the law as natural consequences of his wrong, and he is not bound to anticipate the general probability of such acts, any more than a particular act by this or that individual. The intervention of a criminal act, however, does not necessarily interrupt the relation of cause and effect b/w negligence and an injury. If at the time of the negligence, the criminal act might reasonably have been foreseen, the causal chain is not broken by the intervention of such act.

Is hostility required for assault?

No hostility required: not necessary that the defendant bear malice or hostility to the plaintiff or intend to harm P (1) Pranks can result in assault

Is apprehension the same as fear? How or how not?

No. P must show apprehension, does not necessarily mean "fear". P's right to recover not negated by the fact that P is confident of his ability to take action to avoid the contact (i) Ex. Intoxicated scrawny individual attempts to strike Mike Tyson. Tyson not afraid but still has apprehension of contact

Does a good faith (reasonable) mistake negate intent?

No. Ranson v. Kitner (D shot P's dog, mistaking it for a wolf; liable to D). Mistake different from a non-volitional act.

Does voluntary intoxication vitiate intent?

No.

In transferred intent, is intent to harm necessary?

No.

Nonfeasance

Nonfeasance: In general, when there is only the promise and the breach, only the contract action will lie, and no tort action can be maintained. To this general rule there are a few recognized exceptions: 1) Common carriers, or other public utilities, that have undertaken the duty of serving the public, becomes liable in tort when it fails to do so, whether or not it has made a contract; 2) A ∆ who makes a K without intention to perform it is regarded as committing a form of misrepresentation, or fraud, for which a tort action of deceit will lie. Promises or undertakings may form the foundation of a special relationship sufficient to impose a duty to take affirmative action to protect a person from harm; 3) L's promise to T to repair the premises.

Are threats to a third party actionable?

Nope. No cause of action.

First neg per se case (violation of statute) poison case

Osborne v. McMasters- (∏ is administrator of intestate. Intestate bought poison from ∆, but intestate did not know it was poison because ∆ did not properly label the bottle as "poison," which is required by statute. ∏ sued ∆ and won.)Holding: Where a statute or municipal ordinance imposes upon any person a specific duty for the protection or benefit of others, if he neglects to perform that duty he is liable to those for whose protection or benefit it was imposed for any injuries of the character which the statute or ordinance was designed to prevent, and which were proximately produced by such neglect.

Oshea v. Welch

Oshea v. Welch - (∆ was manager of store of ∆2 , he was driving to district office to deliver football tickets and got in an accident when he decided to turn into a service station to get and estimate on his car, that he used for work. ∏ victim of accident sued ∆ and store for vicarious liability. District court held that ∆ was not in the "scope of his employment" and granted SOJ for ∆.) Held: Where an employee causes an accident while making a "slight deviation" during the course of his employment, he is still within the scope of his employment and employer can be vicariously liable. o Rule: Whether employee is in the scope of his employment is determined by if he was making a detour or a frolic. A "detour" and "slight deviation" and both brief and are considered in the course of employment. A "frolic" is not in the course of employment. ♣ What is considered a slight deviation can also depend on who you are. A manager has more freedom than a normal employee ♣ Other factors to consider include: - The employee's intent - The nature, time, and place of deviation - The time consumed in the deviation - The work for which the employee was hired - The incidental acts reasonably expected by the employer - The freedom allowed the employee in performing his job responsibilities

Cases involving unforeseeable p

Palsgraf and Suzuki

Palsgraf

Palsgraf v. Long Island R.R. Co. - (A man running to board ∆'s train seemed close to falling so one of ∆'s employees attempted to help him onto the train. In doing so, a package carried by the passenger dislodged. Unbeknownst to ∆, the package contained fireworks, which exploded when they hit the tracks. The shock of the explosion threw down some scales at the other end of the platform many feet away. The scales struck the ∏, causing injuries for which she sues.) Held: Where an action by the ∆ causes injury to the ∏, but the ∏ isn't within the zone of danger (reasonable ∆ wouldn't forsee danger to ∏) ∆ is not liable because ∆ did not owe ∏ a duty. o Rule: 1) Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right. "Proof of negligence in the air, so to speak, will not do." Pollock, Tort (11th Ed.) 2) "In every instance, before negligence can be predicated of a given act, back of the act must be sought and found a duty to the individual complaining, the observance of which would have averted or avoided the injury." 3) ∏ sues in her own right for a personal wrong to her, and not as the vicarious beneficiary of a breach of duty to another. 4) The risk reasonably to be perceived defines the duty to be obeyed and risk imports relation; it is risk to another or to others within the RANGE OF APPREHENISON. ***Dissent: The duty of care is owed to the public; but liability is limited to damages proximately caused by D's breach, with the proximate cause determination to be based on multiple factors: *natural and continuous sequence of events? *substantial factor? *direct connection (without too many intervening causes)? *foreseeable result? (in usual judgment of mankind) *too remote in time or space?

What is the intent element of false imprisonment?

i) Necessary element. P must show D intended to confine him ii) Intent can be met by showing the defendant knew with substantial certainty that the confinement would result iii) Transferred Intent applies (1) D's store detective confines P by using measures to confine X

Perkins v. Texas & New Orleans Ry. Co.

Perkins v. Texas & New Orleans Ry. Co. - (∏ is widow of B. B was a passenger in C's car when C's car came upon some RR tracks and was struck by a train belonging to ∆, killing both B and C. ∆'s train was traveling 37mph in the city, and the safety regulations of the RR imposed a speed of 25mph in the city. ∏ and ∆ do not dispute this fact. The car appeared on the RR crossing when the train was a mere 30 to 40 feet from the crossing. ∏ sued ∆.) Held: Where a ∆'s actions are negligent a ∆ will not be held liable for a ∏'s injuries unless the ∆'s negligence was a substantial factor in bringing about the harm. o It is fundamental that negligence is not actionable unless it is a cause in fact of the harm for which recovery is sought. Negligence is a cause in fact of the harm to another if it was a substantial factor in bringing about that harm.

Pipher v. Parsell

Pipher v. Parsell - (∆ yanked the steering wheel in ∏'s truck causing it to veer off the road, he then did it a second time causing truck to go off road and hit a tree) Held: It is negligence to fail to avoid a risk of some real likelihood of some damage and the likelihood is of such appreciable weight and moment as to induce, or which reasonably should induce, action to avoid it on the part of a person of a reasonably prudent mind. o Rule of Foreseeability (normally question for jury): The test as respects foreseeability is not the balance of probabilities, but the existence, in the situation in hand, of some real likelihood of some damage and the likelihood is of such appreciable weight and moment as to induce, or which reasonably should induce, action to avoid it on the part of a person of a reasonably prudent mind.

Negligence and extraordinary circumstances case

Pokora v. Wabash Ry. Co. - (∏, driving a truck, approached a level RR Crossing at which ∆ had four tracks. Because of boxcars on the first track, ∏ could not see the tracks to the north. ∏ stopped, looked as well as he could, and listened, but heard no bell or whistle. ∏ then drove slowly ahead, and when ∏ reached the main track he was struck by a passenger train from the north, coming at a speed of about 30 mph. T/C directed verdict for ∆, on ground that ∏'s conduct was contributory negligence. T/C applied rule from B. & O.R. Co. v. Goodman, that if a driver can't be sure otherwise whether a train is dangerously near he must stop and get out of his vehicle, although obviously he will not often be required to do more than to stop and look.) Holding: Extraordinary situations may not wisely or fairly be subjected to tests or regulations that are fitting for the commonplace or normal. In default of the guide of customary conduct, what is suitable for the traveler caught in a mesh where the ordinary safeguards fail him is for the judgment of a jury. o Rule: Standards of prudent conduct are declared at times by courts, but they are taken over from the facts of life. *Rules that Sup Court had to consider for RR Crossing: (Court used 2 & 3) 1) Stop, look, listen and get out and reconnoiter B&O v. Goodman dictum 2) Stop, look, and listen "Pennsylvania Rule" 3) Look and listen, but stop only if the circumstances demand it (jury decides whether ∏ was negligent) Majority o Notes from Pokora: a) It is still usually negligence as a matter of law not to look at listen when approaching a RR crossing, and not to slow down or even stop when obstructed vision or something else in the situation calls for it. b) Many other similar "rules of law," formerly stated by a good many courts as absolute, have also been discarded by the courts.

How far does battery extend?

Protection form battery extends to anything connected with the person - Fisher v. Carrousel Motor Hotel, Inc. -->Clothing, objects P is holding, or anything else that is so closely identified with her body that contact with it is as offensive as contact with the body

SD: Provocation

Provocation: insults, verbal threats, and other language do not warrant the privilege. However, if the abusive words are accompanied by an actual threat of physical violence reasonably warranting an apprehension of imminent bodily harm, one may be privileged to defend.

What are the two standards for intent?

Purpose test and Knowledge test

What is the intent element of IIED?

Purpose, knowledge, probability

SD: Reasonable Belief

Reasonable belief: the privilege of self-defense exists when the ∆ reasonably believes that the force is necessary to protect himself against battery, even though there is in fact no necessity.

Defense of others: Reasonable mistake

Reasonable mistake: some courts hold that the intervener steps into the shoes of the person he is defending, and is privileged only when that person would be privileged to defend himself. If it turns out that he has intervened to help the aggressor, he is liable. Other courts hold that the ∆ is privileged to use reasonable force to defend another even when he is mistaken in his belief that intervention is necessary, so long as his mistake was reasonable.

SD Retreat

Retreat: one basic disagreement in approach to privilege of self-defense focuses on whether the ∆ must retreat if he can do so without increasing his danger, rather than stand his ground and use force. It is settled that ∆ may stand his ground and use any force short of that likely to cause serious injury. Retreat not required within one's own home. Common law and minority of courts hold apply rule that rather than kill or seriously injure his assailant, the ∆ must retreat. The majority have insisted upon a higher importance of the dignity and honor of the individual and have held that the ∆ may stand his ground and use deadly force, and even kill his assailant. Restatement provides that the V may use deadly force if there is the slightest doubt, if reasonable, that the retreat can be made safely, and "in determining whether his doubt is reasonable every allowance must be made for the predicament in which his assailant has placed him."

Reynolds v. Texas & Pac. Ry. Co.

Reynolds v. Texas & Pac. Ry. Co. - (∏, a rather portly woman, was trying to catch a train at ∆'s train station. When ∏ emerged from the sitting room into the outside darkness, ∏ fell down some unlit steps. ∏ incurred serious injuries as a result of the fall and sued ∆, and judgment for ∏ at T/C. ∆ Appeals.) Held: Where the negligence of the ∆ greatly multiplies the chances of accident to ∏, 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 between the negligence and the injury.

Negligence and handicapped persons

Roberts v. State of Louisiana - (∆ employs W, who is a blind operator of a concession stand in a U.S. post office building. One day W is walking to the bathroom, without his cane, and W bumps into ∏ causing ∏ to fall to the ground and injure his hip. ∏ was a frail old person. ∏ sues post office and W not joined as a ∆ to this suit. ∏ claims that W walked to the bathroom in a negligent manner, most specifically that W did not use his cane) Held: A handicapped person must conform their conduct to the conduct of a reasonable prudent person with their handicap, and not that of a reasonable prudent person who does not have the same physical restraints. o Rule: Professor William L. Prosser stated: "As to his physical characteristics, the reasonable man may be said to be identical with the actor. The man who is blind...is entitled to live in the world and to have allowance made by others for his disability, and he cannot be required to do the impossible by conforming to physical standards which he cannot meet...At the same time, the conduct of the handicapped individual must be reasonable in the light of his knowledge of his infirmity, which is treated merely as one of the circumstances under which he acts...It is sometimes said that a blind man must use a greater degree of care than one who can see; but it is now generally agreed that as a fixed rule this is inaccurate, and that the correct statement is merely that he must take the precautions, more or less, which the ordinary reasonable man would take if he were blind." o Notes: a) Other physical handicaps include deafness, no sense of smell, and paralysis caused by polio. b) When intoxication is voluntary or even negligent it is now allowed to be used by ∆ as a physical disability. c) A ∆ who reasonably believes himself to be in good health, and who suffers for the first time a heart attack, seizure, etc. would not be held to have negligently caused an alleged injury. d) In the Roberts case, if ∆ had been on a busy street that was unknown to ∆, and ∆ was not using his cane, and ∆ caused an accident, then ∆ would probably be held liable.

Negligence and child standard of care

Robinson v. Lindsay- (∆ is 13 and ∏ is 11. ∆ driving snowmobile and towing ∏ behind. ∏'s thumb caught in the tow rope and is severed. ∏ sues ∆. T/C instructs jury that ∆ is held to a standard of care of that of a "reasonably careful child of the same age, intelligence, maturity, training and experience." ∏ appeals claiming that ∆ should be held to a higher standard of care. Held: Where the activity a child engages in is an adult activity that is inherently dangerous, as is the operation of powerful mechanized vehicles, the child should be held to an adult standard of care. o Original Rule: A child's Duty is to exercise the same care that a reasonably careful child of the same age, intelligence, maturity, training and experience would exercise under similar circumstances. o 3 exceptions to Child's Standard of Care: ♣ Using dangerous machinery ♣ Adult Activity ♣ Under 7 not capable of negligence 7-14 presumed incapable of negligence (rebuttable) >14 capable of negligence (rebuttable)

Landowner case//baseball field

Where a landowner's duty is to take reasonable precautions to protect the traveling public, failing to sufficiently put forth those precautions is negligence.

Merger case Blackborn

Rule: Primary assumption of risk is simply another means of stating that the ∆ was not negligent, either because he owed no duty to the ∏ in the first instance, or b/c he did not breach the duty owed. Secondary assumption of risk is an affirmative defense to an established breach of a duty owed by the ∆ to the ∏. Holding: The affirmative defense of implied assumption of risk is merged into the defense of contributory negligence and the principles of comparative negligence shall apply in all cases where such defense is asserted. ∏ who negligently assumes a risk may recover that portion of his injuries due to ∆'s negligence but not that portion due to his own negligence. (Minority Rule) o Not favored. Assumption of risk is not favored by the courts; and it has been cordially disliked by the friends of the ∏, because of its long history of defeating recovery in cases of genuine hardship—particularly in those of injuries to employees before the workers' compensation acts. The first cases to refuses to recognize the defense involved the violation of statutes that were found to be enacted to protect a particular class of persons against their own consent; and it was declared that the purpose of the statute would be defeated if the defense were allowed. o Comparative negligence. A growing number of courts are in accord with the holding of the principal case that implied assumption of risk does not remain an affirmative defense separate and apart from contributory negligence. As the principal case reflects, the advent of comparative negligence is prompting courts to implement a merger of the defenses of contributory negligence and implied assumption of risk. What are the reasons for this? Some comparative negligence statutes have treated assumption of risk the same as contributory negligence, but the merger may occur even if the comparative negligence statutes is completely silent about assumption of risk.

Implied assumption of the risk case

Rush v. Commercial Realty - (∏ are tenants of ∆, which controlled the house wherein ∏ lived and also the adjoining house, and provided a detached privy (outhouse) for the use of both houses. ∏ had to use the bathroom, so ∏ went into the privy and fell through the floor. ∏ descended nine feet and had to be extricated by use of a ladder. ∏ sued ∆ and ∆ filed motion for nonsuit and also asked for a directed verdict. T/C refused.) Held: Where a ∏ has no choice but to encounter a known danger created by a ∆'s conduct then there is no assumption of risk on the part of the ∏. o Rule of Assumption of Risk: 1) ∏ must know and appreciate the magnitude of the risk; and 2) ∏ must voluntarily encounter the risk.

Unforeseeable Consequences Case Fire to woodshed

Ryan v. New York Central - (∆, a railroad, negligently operated one of its engines. The engine set fire to ∆'s woodshed. The fire then spread to ∏'s house, which was nearby. Held: When ∏'s building is destroyed by sparks that were thrown by the negligent act of the ∆, then the result was to have been anticipated the moment the fire was communicated to the building, but the ∆ is not liable when ∏'s building is destroyed by a fire communicated from another building even when the ∆ was negligent in causing the initial fire that ultimately communicated to ∏'s building. o Rule: A ∆ is liable for damages when the damages were the proximate result of ∆'s own acts, but ∆ is not liable for remote damages. o Notes: To permit a ∏ to collect damages from a ∆ when ∏'s house is destroyed by a fire that was communicated from another house fire that was negligently caused by the ∆ would subject the ∆ to liability against which no prudence could guard (In other words, ∆ cannot do anything to prevent the fire from spreading to other people's buildings. The factors that would lead to a fire spreading are beyond ∆'s control, i.e. state of the atmosphere, speed and direction of the wind, etc.)

Abnormally dangerous activities ryland v fletcher

Rylands v. Fletcher - (∆ owned a piece of property and hired contractors to come construct a reservoir. The contractors constructed the reservoir above an abandoned coal mine that was connected to ∏'s property beneath the surface. When the reservoir was filled water flowed into ∏'s mine causing damage. ∏ sued for damage and lost profits.) Held: Where ∆ lawfully brings something on his land that he thought was harmless and it escapes and creates damage he is prima facie answerable for the natural damage and ∏ does not have to prove negligence. o Notes: Strict liability applies to non-natural uses of land which result in the escape of something dangerous that harms others.

Sandy v. Bushey COLT CASE

Sandy v. Bushey - ( ∏ turned his mare and colt out into the pasture of a neighbor other horses occupied the pasture including ∆'s three year old colt. ∏ went to the pasture to grain his mare and was kicked by ∆'s horse and injured, the horse had exhibited a "bad disposition" before and ∆ was aware of it") Held: Where ∆ seeks to bar ∏ from recovery he must establish that the injury occurred because ∏ voluntarily put himself in a way to be hurt as he knew the probable consequence of his act. o Contributory negligence is no defense to strict liability! o ∆ may have defense of assumption of risk, but ∏ did not assume risk because he had a right to be there.

Negligence and informed consent

Scott v. Bradford - (∏'s physician advised her to have several tumors removed and referred her to ∆. ∆ admitted her to the hospital where she signed a routine consent form prior to ∆ performing the surgery. After surgery ∆ experienced problems w/ incontinence. ∆ visited another doctor who found the problem, and after performing 3 surgeries on the ∆, ∆'s problems corrected. ∆ sued, claiming that ∏ failed to advise her of the risks involved or of available alternatives to surgery, and ∆ further maintains that had she been properly informed that she would have refused the surgery. Held: In medical malpractice actions a patient suing under the theory of informed consent must allege and prove: 1) defendant physician failed to inform him adequately of a material risk before securing his consent to the proposed treatment; 2) if he had been informed of the risks he would not have consented to the treatment; 3) the adverse consequences that were not made known did in fact occur and he was injured as a result of submitting to the treatment. o Rule: If the physician obtains a patient's consent but has breached his duty to inform, the patient has a cause of action sounding in negligence for failure to inform the patient of his options, regardless of the due care exercised at treatment, assuming there is injury. o Notes: *Affirmative defenses: Physician may plead and prove that ∏ 1) knew of the risks, or 2) full disclosure would be detrimental to the patient's best interests, or 3) that an emergency existed requiring prompt treatment and patient was in no condition to decide for himself. o MD Standard of Care: ♣ Possess skill & learning or ordinary MD in similar community ♣ Apply skill and learning with reasonable care ♣ Give info about treatment, alternatives and their material risks before obtaining consent o Action based on failure to inform of risks the ∏ must prove: ♣ Material: the risk was material, something a RPP would want to know ♣ ∏ would not have given consent if informed of risk ♣ The risks caused injury to ∏ ♣ MD did not inform ∏ of all material risks o Exceptions to informed consent: ♣ Emergency situation with ∏ incapacitated requires immediate action; ♣ The undisclosed risk is common knowledge or actually known to ∏; ♣ Full disclosure would be detrimental to ∏'s well-being. (Where full disclosure would be detrimental to a patient's total care and best interests a physician may withhold such disclosure (i.e. disclosure itself causes injury to patient), for example, where disclosure would alarm an emotionally upset or apprehensive patient. Where there is an emergency and the patient is in no condition to determine for himself whether treatment should be administered, the privilege may be invoke)

What cases does substantial certainty apply?

Substantial certainty applies to other cases in which a person must know with substantial certainty that their actions will produce the intentional tort. Do not need to know that specific injuries will result. If ∆ has substantial certainty that there will be harmful contact but does not have actual intent to harm there is still tortious intent.

Assumption of the risk expressed case

Seigher v. National Fitness Institute - (∏ owns ∆s gym and when signing her membership agreement she disclosed that she had back problems and that her physical condition was poor. ∏ also signed a participation agreement which contained a clause releasing all claims against ∆. During her initial evaluation she injured her right shoulder and had to have surgery. She filed a negligence action against ∆ and argued that the release clause was void under public policy) Held: Where an exculpatory clause is not "patently offensive", is not for a provider of public interest and both parties have equal bargaining power it does not violate public policy and is enforceable. o Rule: Exculpatory agreements between two parties may be enforced to prevent an injured party from holding the exculpated party liable if: 1) there was no disadvantage in the bargaining power of the parties when forming the exculpatory agreement; 2) the party being released is not engaged in a business that affects the public interest; 3) the injury to the injured party was not a result of the exculpated party's violation of a safety statue; 4) the injured party was injured as a result of nothing more than simple negligence on the part of the exculpated party; 5) the injured party knew of the exculpatory agreement, or if he did not known of the agreement, a reasonable person in the injured party's position would have known of the agreement. (Courts can allow exculpatory agreements to cover more than mere

Sindell v. Abbott Laboratories Who caused the injury?? Meds to help w miscarraige

Sindell v. Abbott Laboratories- (∏ alleged that her mother ingest a drug, DES, which was marketed by the ∆s, five drug companies (90% of the market share for DES). The drug was marketed by approximately 195 other companies, not joined as ∆s. ∏, now an adult, alleges that she developed cancer as a result of her exposure to the drug. She also indicated that she could not identify the manufacturer of the drug. The T/C dismissed the action.) Held: Where ∆s made a substantial share of the market of a fungible product, and ∏ has no proof of which product injured her through no fault of hers, then the burden of proof on causation shifts to ∆. If the burden is not met, each ∆ is liable for a percentage of the damages equal to that ∏'s percentage of the market. (Minority Rule) (Market Share Liability) o ***Reasons: 1) In our contemporary complex industrialized society, advances in science and technology create fungible goods which may harm consumers and which cannot be traced to any specific producer. 2) As between an innocent ∏ and negligent ∆s, the latter should bear the cost of the injury. 3) ∆s are better able to bear the cost of injury resulting from the manufacture of a defective product. 4) Incentive for safer products o Different from Summers because in Summers it was certain that one of the two ∆s who negligently fired the shotgun injured the ∏. In Sindell there is a possibility that that manufacturer of the drug that injured the ∏ was one of the 10% that was not included in the litigation. o Under the market share theory of liability used in Sindell, it may appear that the ∆s are being treated unfairly by being forced to pay for an injury they may not have caused. However, the ∆s are only paying the amount of ∏'s damages based on ∆'s share of the market. For example, if a ∆ produced 10% of the market share of the product that caused ∏'s harm, then arguably ∆ is responsible for causing harm to 10% of the people who were harmed by the product that was produced by the ∆s as a whole. o Market Share Liability new rule that is normally just for DES

Slocum v. Donahue

Slocum v. Donahue - (∆ pleaded guilty to motor vehicle homicide in the death of ∏'s son. The ∏ then filed a civil action against the ∆ for negligence and gross negligence. The ∆ then filed a third-party complaint against Ford Motor Co., denying negligence and seeking contribution and indemnity, alleging that Ford was negligent and was in breach of warranties of merchantability and fitness for a particular use. The ∆ claims that when ∆ was in the car prior to the accident, he accidentally pushed the floor mat on the driver's side, under the throttle. When ∆ started to back his car down the driveway the engine began to race and although he repeatedly stepped on the brakes, his car continued to accelerate. The car's rear wheels hit the curb across the street and became airborne, killing ∏'s 18 month old child. ∆'s expert would testify at trial that the floor mat was defective, permitting it to interfere with the operation of the vacuum booster which caused the power brakes to fail to function. Before the trial ∏ and Ford signed a settlement agreement for $150,000 in exchange for a release of any claim. Ford then moved for SJ as to the ∆'s claim and on the grounds that the settlement was made in good faith and that all claims for contribution were thereby extinguished, and that there was no basis for the ∆'s claims for indemnity. ∆ appeals from the final judgment dismissing the third party complaint against Ford.) Held: Where a release is given in good faith to one or more persons liable in tort for the same injury then the release shall discharge the tortfeasor to whom it is given from all liability for contribution to any other tortfeasor, and a negligent tortfeasor cannot seek indemnity from another negligent tortfeasor when the party seeking to be indemnified joined in the negligent act. o Indemnity. Traditionally, while contribution allowed a tortfeasor to be partially reimbursed for money paid in judgment or settlement, indemnity was available to shift the entire cost of the judgment or settlement from a tortfeasor imposed on it by law because of its relationship with the tortfeasor whose wrongful conduct caused the injury. o In some states a doctrine of "equitable indemnity" developed, usually to avoid restrictive contribution statutes that provided for pro rata contribution even though one of the tortfeasors was substantially more culpable than the other. In those jurisdictions, indemnity was sometimes permitted if the indemnitor was "actively" negligent while the indemnitee was "passively" negligent or if the indemnitor was "primarily" liable while the indemnitee was "secondarily" liable. With the development of comparative responsibility principles, this form of indemnity has been curtailed in many states.

Slocum v. Food Fair Stores of Florida

Slocum v. Food Fair Stores of Florida (∏ asks employee of ∆ for price of item. ∆ tells ∏ to find it out herself and that ∏ stinks. ∏ suffers emotional and mental distress as a result of the incident, and furthermore her heart disease is aggravated and she has a heart attack because of the incident) Holding: A cause of action for intentional infliction of emotional distress may lie if one, who, without a privilege to do so, intentionally causes severe emotional distress to another and the actions causing the severe emotional distress would have caused severe emotional distress to a person of ordinary sensibilities, in the absence of special knowledge or notice. o Rule: "One, who, without a privilege to do so, intentionally causes severe emotional distress to another, the intention existing when the act is done for the purpose of causing the distress or with knowledge that sever emotional distress is substantially certain to be produced by such conduct" can be held liable for intentional infliction of emotional distress. Restatement of the Law of Torts § 46, 1948 supplement. o Notes from Slocum: common carriers and innkeepers have been held to a higher standard of conduct and may be liable for using insulting language for their passengers and patrons.

Applicability of statute Stachniewicz v. Mar-Cam Corp

Stachniewicz v. Mar-Cam Corp. (∏ is injured in a fight in ∆'s bar by C. C was drinking in ∆'s bar for appx. 2.5 hours before the fight. ∏ sues ∆ on the basis of ∆'s violation of an Oregon statute, which would create negligence per se by the ∆. The relevant portion of the statute read: "(3) No person shall give or otherwise make available any alcoholic liquor to a person visibly intoxicated." ∏ also contends that ∆ violated the Oregon Liquor Control Regulation, the pertinent portion of which reads: "(2) No licensee shall permit or suffer any loud, noisy, disorderly or boisterous conduct, or any profane or abusive language, in or upon his licensed premises, or permit any visibly intoxicated person to enter or remain upon his licensed premises.") Held: Where it is reasonable to assume that the regulation was created with the intent to prevent the abuses that resulted in injury to the ∏, and that the commission which promulgated the regulation had in mind the safety of patrons as well as the general peace and quietude of the community. (A statute can be created to protect the public at large and 3rd parties who may sustain injuries, and therefore a statute with a dual purpose can still give rise to negligence per se). *A statute that imposes a criminal or regulatory duty (but does not provide explicitly for tort liability) will be used in place of the common law's Reasonable Prudent Person standard of conduct if the judge decides that the statute: 1) Protect a class of individuals of which P is a member, & 2) Protects against harm of the sort the P suffered, and 3) Is an appropriate standard for use in torts cases. o Rule: 1) A violation of a statute or regulation constitutes negligence as a matter of law when the violation results in injury to a member of the class of persons intended to be protected by the legislation and when the harm is of the kind which the statute or regulation was enacted to prevent. 2) It is proper for the court to examine preliminarily the appropriateness and workability of the standard as a measure of care for civil litigation under the circumstances presented.

State Rubbish Collectors v. Siliznoff

State Rubbish Collectors v. Siliznoff (∆ threatened by ∏ and ∆ induced by ∏ to sign notes under threat of a beating if ∆ did not sign agreement. ∆ promises to sign notes next day and leaves. ∆ terrified and get sick from the incident.) Holding: A cause of action is established when it is shown that one, in the absence of any privilege, intentionally subjects another to the mental suffering incident to serious threats to his physical well-being, whether or not the threats are made under such circumstances as to constitute a technical assault, and even if the mental suffering does not produce physical consequences. o Rule: "One who, without a privilege to do so, intentionally causes severe emotional distress to another is liable (a) for such emotional distress, and (b) for bodily harm resulting from it." Source: Restatement of Torts § 46 1947. o Notes from Siliznoff: ♣ Some states recognize this tort, but restrict its application to situations in which ∏ has suffered "physical consequences." ♣ Recovery for mental distress without physical injury is generally allowed if the ∆'s conduct exceeds the "limits of social toleration."

Sullivan v Crabtree RIL death of son

Sullivan v. Crabtree - (∏s sue for damages for death of adult son B. B was a guest in ∆'s tractor trailer. On a paved first-class Federal-state highway, on a dry, clear and sunny day, ∆ was approaching a curve when another truck overtook and passed ∆ (the road featured moderate grades and pretty sharp curves). Just after this ∆'s truck suddenly swerved off the road and down an embankment, killing B. Held: Where ∆ provides evidence of other factors that could have caused the accident the jury must make an inference from the facts on ∆'s negligence, RIL merely makes a case for the jury. o Rule: Res ipsa loquitur affords "reasonable evidence" in the absence of an explanation by ∆, that the accident arose from this negligence. The weight or strength of such "reasonable evidence" will necessarily depend on the particular facts of each case, and the cogency of the inference of negligence from such facts may of course vary in degree all the way from practical certainty in one case to reasonable probability in another. o -Procedural Effects of RIL *Some cases give RIL one effect and some another of these three different effects: ♣ 1) It warrants an inference of negligence which the jury may draw or not, as the judgment dictates. (majority) ♣ 2) It raises a presumption of negligence which requires the jury to find negligence if the ∆ does not produce evidence sufficient to rebut the presumption. ♣ 3) It not only raises such a presumption but also shifts the ultimate burden of proof to ∆ and requires him to prove by a preponderance of all the evidence that the injury was not caused by his negligence. o RIL case always gets you to the jury, when jury can't decide party with the burden of persuasion always loses.

What party caused the harm?Summers v. Tice

Summers v. Tice - (∏ and two ∆'s were members of a hunting party. Both ∆'s negligently fire, at the same time, at a quail and in the ∏'s direction. ∏ was struck in the eye by a shot from one gun. There was no other satisfactory evidence.) Held: Where two or more ∆s bring about a situation where the negligence of one of them injured the ∏ and it is impossible to prove which caused the injury, then the burden shifts to the ∆s to produce enough evidence to determine which one of the ∆'s negligence caused the ∆'s injury. (If the ∆s are unable to produce enough evidence to show which one of them caused ∏'s injuries and/or to absolve themselves, then the ∆s can be held jointly and severally liable.) o 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 caused the injury. o ***Reason: If the rule were otherwise then both would be exonerated from liability, although each was negligent, and the ∏ would be left remediless. In such situations the ∆s are in a better position to offer evidence to determine which one caused the injury. -Hypo: Two automobiles, negligently driven by A and B, collide. Immediately, a car negligently driven by C piles into the wreck. Somewhere in the process ∏, a passenger in A's car, is killed. There is no other evidence. What result? Answer: All 3 drivers would be held jointly and severally liable under the rule from Summers v. Tice. *The rule from Summer does not apply where the ∏ was contributorily negligent.

Surocco v. Geary

Surocco v. Geary (There was a fire in San Francisco. ∏ had building that was in the path of the fire. ∆ was the Alcalde of the city at the time (similar to mayor). ∏ was rescuing belongings from building before the fire was to reach and destroy the building. ∆ ordered that ∏ stop retrieving belongings b/c ∆ needed to blow up ∏'s building to stop the spread of the fire. ∆ blew up the building and ∏ was unable to rescue the rest of the goods.) Holding: Where a person tears down or destroys the property of another, in good faith, and under apparent necessity due to the exigencies of the circumstances, for the purpose of protecting other property and/or lives, that person will not be held personally liable in an action by the owner of the property destroyed. o Rule: The right to destroy property, to prevent the spread of fire, has been traced to the highest law of necessity, and the natural rights of man, independent of society or civil government. In such times and impending emergencies, the individual rights of property give way to the higher laws of impending necessity. Necessity provides a privilege for private rights. *A person acting reasonably in defense of the public interest when it is apparently or actually threatened by a natural force has the privilege of public necessity. o Notes on Surocco: To be privileged the ∆ does not necessarily have to be a public officer.

Tallious v Tallious (conflict with Boyd)

Tallios v. Tallios (Handout) - (∏ a guest in ∆'s car. ∏ in ∆'s care and discovers her purse missing. ∆ stops car and ∏ leaves her seat and puts one foot on running board outside the car and the other foot on the ground while searching for her purse under the car seat. While searching for her purse the car goes forward and knocks ∏ back causing her to sustain injuries. ∏ sues ∆, but IL has an "automobile guest statute" which states that a person who receives a gratuitous from a ∆ in ∆'s car can't sue ∆ for injuries sustained in accident unless accident a result of ∆'s willful and wanton misconduct" ∏ complains that ∏ only needed to display ordinary negligence because the automobile guest statute didn't apply since ∏ was outside of the car at the time of the accident, and was therefore not a guest. T/C ruled for ∆ and ∏ appeals. Held: The relation of host and guest b/w automobile owner or driver and a passenger riding without payment of compensation begins when the guest attempts to enter the automobile, and ends only when he has safely alighted at the end of the ride. o Rule: A generous owner or driver must be protected at all times that the relation of host and guest exists in connection with the free ride.

Taylor v. Vallelunga

Taylor v. Vallelunga (∏ beaten by ∆. ∏'s daughter witnessed beating. No evidence that ∆ knew witness present. ∏ sues ∆ on two counts. One, for the assault. Two, ∏ and daughter is second count for the daughter suffering severe mental and emotional distress as a result of the event. Demurrer on the second count) Holding: The perpetrators of a crime can be held liable for the intentional infliction of emotional distress of a witness to the crime they commit who suffers emotional distress as a result of witnessing the crime if the perpetrators either (a) committed the crime with the purpose of inflicting severe emotional distress on the witness or (b) were substantially certain that the witness(es), who the perps knew were present, would suffer severe emotional distress. o Rule: "One who, without a privilege to do so, intentionally causes severe emotional distress to another is liable (a) for such emotional distress, and (b) for bodily harm resulting from it" Restatement of Torts § 46 1948 o "An intention to cause severe emotional distress exists when the act is done for the purpose of causing the distress or with knowledge on the part of the actor that severe emotional distress is substantially certain to be produced by his conduct." o Notes from Taylor: ♣ In California the infliction of emotional distress must be intentional and outrageous, and also directed at the ∏ or take place in the presence of ∏, with ∆'s awareness. ♣ A number of courts have held that ∏ must be present at the time. ♣ Dead bodies: A good many cases have allowed for recover for mental distress at the intentional mutilation or disinterment of a dead body, or for interference with proper burial. (cause this is obviously super traumatizing)

Tennessee Trailways v. Ervin

Tennessee Trailways v. Ervin - (∏ is administrator of the B. B killed by bus owned by ∆. B was on a motorcycle when, according to eyewitness testimony, B's motorcycle "spurted" out on to the highway in front of the bus. No evidence to the contrary was offered. ∏ sued ∆ for negligence claiming that ∆ was driving 73.5 mph in a 65 mph zone. ∆ claims that the accident would have occurred even if ∆ had been going the speed limit.) Held: Where a ∆'s acts or omissions are negligent ∆ will not be held liable for negligence when the injury to ∏ would have occurred even if the ∆'s acts or omissions were not negligent. o Rule: Recovery in a negligence action may be had by ∏ only if the ∆'s conduct can be shown to be 1) negligent, and 2) proximate cause of the injury. o Proximate cause - Did ∆'s negligence play "such a part" in causing ∏'s injury as makes him liable for it? o "But for" test: If ∆'s negligence hadn't happened, would ∏ have been injured anyway? (∆'s prefer this one) o Substantial Factor test: Was ∆'s negligence a "substantial factor" is causing ∏'s injury? (∏'s prefer this one)

Are insane persons liable for their torts?

Yes. Liable if he/she is capable of, and possess intent - McGuire v. Almy (a) D, an insane person, threatened to kill P, her nurse, and then struck her on the head (b) Irrational motive v. actual intent to cause harm (e) NOTE: different from criminal liability for insane individuals --> Narrower - can be liable for tort even though not liable for criminal action

Does plaintiff have to have awareness for there to be an assault?

Yes. Plaintiff must be aware of the threatened contact. If unaware no assault. -->Must be aware of the threatened harm at the time the threat existed, he cannot recover for assault, no matter how shaken up he becomes after the fact.

What about angry touching?

The least touching of another in anger is a battery. (a) An offensive act, no matter how small, can suffice for batter (b) Cole v. Turner - D uses physical force to push P out of the way = battery even though no physical injury results - an ordinary person would be offended.

What is the purpose behind automobile guest statutes?

The principle of limiting the duty that a driver owes to an automobile guest originated in Massachusetts in the case of Massaletti v. Fitzroy (1917). The reasons behind automobile guest statues include: 1) without automobile guest statutes there may be an increased possibility of collusion/ host and injured guest in manufacturing a claim against the host's insurer; 2) a fair allocation of a limited insurance fund for pedestrians and persons in other cars in preference to guests; 3) savings in fuel by encouraging car pools. 4) Ingratitude: first, at the time most of the statutes were enacted in the 1930s automobile liability insurance was not widespread, and a driver who was successfully sued by his guest was likely to bear the considerable expense himself; most legislatures felt that it was unfair to encourage "ingratitude" by guests (Reward Generosity).

Contract created to change standard of liability (YOUR CASE)

Trustees of Trinity College v. Ferris (Handout)-(Participants in a regatta signed a release that stated that they release all claims unless they were grossly negligent. One boat hit another, one member of the crew sued and found the coaches and others to be grossly negligent)

Aggravated negligence degree of care

There were no degrees of negligence at common law. 1. Degrees of Care. Certain people, such as common carriers, must exercise a higher degree of care. Also, as danger increases, the actor is required to exercise caution commensurate with it, and so to be more careful.

Bystander case

Thing v. La Chusa - (A minor was injured in a car accident and when minors mother got to the scene she saw her bloody and unconscious child who she thought was dead lying in the middle of the street. She sued ∆ claiming she suffered great emotional disturbance) Held: Where a ∏ is closely related to injured victim, is present at the scene of the injury producing event at the time, and is aware that it is causing injury to the victim they may recover for the serious emotional distress reasonably suffered in reaction to the accident Bystander may recover only if: 1. ∏ is closely related by blood or marriage AND 2. ∏ is present and aware of injury (witness only), AND 3. ∏ suffers serious distress that is: a. Beyond that of a disinterested spectator b. Beyond normal grief at loss of a relative, AND c. Not abnormal (no thin-skull ∏)

3 chief areas of strict liabilty

Three Chief Areas of Strict Liability: 1. Wild Animals & Domesticated Animals with "dangerous propensities" 2. Blasting and Storage of Explosives 3. Abnormally Dangerous Activities

What are the elements of trespass to land?

Trespass to land occurs when there is a. unauthorized b. unlawful entry c. into the close of another *No damage to the land is necessary.

Broken shower door case Ms Rosier

Trimarco v. Klein - (∏ is tenant of ∆, the landlord. ∏ was in the shower and ∏ slid the glass door open and the glass shattered, severely injuring ∏. The glass was ordinary glass, very thin, and was not the customary shatter proof glass. ∏ had no knowledge that the glass was ordinary and not shatter-proof.) Held: Where evidence of custom is offered to show what a RPP would do, the violation of the customs establishes a prima facie case of negligence, but it is not conclusive. o Rule: When certain dangers have been removed by a customary way of doing things safely, this custom may be proved to show that the one charged with the dereliction has fallen below the required standard if the conduct was not reasonable under all the circumstances. o Notes: a) Proof of a common practice aids in formulating the general expectation of society as to how individuals will act in the course of their undertakings. ** Custom is only evidence** b) If a whole industry is a careless one and their customs are careless, then the showing that a D who is a member of that industry followed the industry custom, which is careless, will not absolve D from liability. Judge Learned Hand stated that "In most cases reasonable prudence is in fact common prudence; but strictly it is never its measure; a whole calling may have unduly lagged in the adoption of new and available devices. It never may set its own tests, however persuasive be its usages. Courts must in the end say what is required; there are precautions so imperative that their universal disregard will not excuse their omission."

Twin Fires case

Twin Fires /Anderson v. Minneapolis, St. P. & S. St. M. R.R. Co. - (∏'s property destroyed by a forest fire. The fire originated in a bog and was found by the jury to have been caused by the negligence of the ∆. ∆'s fire merged with another fire of independent and uncertain origin, and the combined fires burned over ∏'s property.) Held: Where two acts of negligence combine to produce a single injury, either act alone being such that it would have caused ∏'s loss, then each negligent ∆ is liable for the entire result. o Rule: One who negligently sets a fire is not liable if another's property is damaged, unless it is made to appear that the fire was a material or substantial factor in the destruction of the property. o Substantial factor is helpful in cases involving two or more actively operating forces when either one alone would have caused ∏'s loss. If the "but for test" were applied in cases involving two or more acts of negligence, then the ∆s would be able to escape liability. The substantial factor test makes it irrelevant if either act alone would have caused ∏'s loss. o The "substantial factor" test would retain "but for" causation as an essential precondition except in situations, such as the principal case, in which two or more actively operating forces, for only one of which the ∆ was responsible, combine to bring about the harm. It obviously has the advantage of eliminating cases in which the ∆ has made a proved, but insignificant, contribution to the result—as where he throws a lighted match into a forest fire.

By way of synthesis, how to cut off d's liability

Two general approaches to the issue of how to determine whether ∆'s liability to ∏ should be cut off even though ∆'s conduct was both negligent and the factual cause: 1. Foreseeability: depends on detail and precision with which foresight is required ♣ Often posed in term of risk idea ♣ It is "foreseeable" in any sense that a reasonable person could have it in mind and take precautions against it ♣ "risk" is a standard not a rule which allows it to be used very broadly so the need to exercise discretion in its application is apparent 2. Hindsight/ direct causation: more broad o not as widely used (Polemis)

United States v. Carroll Towing Co

United States v. Carroll Towing Co. - (Bargee, w/o excuse, is away from barge. Another ship hits bargee's barge and bargee's barge sinks.) Held: Where probability of actual damage & gravity of that damage outweigh the burden of taking steps to avoid the damage, the failure to take those steps is negligence. o Rule: "Since there are occasions when every vessel will break from her moorings, and, since, if she does, she becomes a menace to those about her, the owner's duty, as in other similar situations, to provide against resulting injuries is a function of three variables: 1) The probability that she will break away; 2) the gravity of the resulting injury, if she does; 3) the burden of adequate precautions. Liability depends upon whether B (burden) is less than PL (Probability multiplied by Injury)." [If B is less than PL then there is liability, if B is greater than PL then there is no liability]

Haystacking case (RPP)

Vaughn v. Menlove -( Hay stacking case ∆ built hayrick near ∏'s property, ∏ warned him that it was going to catch fire. D didn't listen. It caught fire and destroyed ∏'s property) Held: A ∆ is negligent when their act or omission results in injury to another party when the ∆ failed to proceed with such reasonable caution as a prudent man would have exercised under such circumstances. o Rule: The care taken by a prudent man has always been the rule laid down; and as to the supposed difficulty of applying it, a jury has always been able to say whether, taking that rule as their guide, there has been negligence on the occasion in question. o Notes on Menlove: a) the standard formula for instructing the jury has been that of "a reasonable man of ordinary prudence." Variations on this have been upheld so long as they obviously mean the same thing. b) such an "ordinary man" is not necessarily a super cautious individual devoid of human frailties and constantly preoccupied with the idea that danger may be lurking in every direction about him at every time.

Vincent v. Lake Erie Transportation Company

Vincent v. Lake Erie Transportation Company (∆ owns ship and moored ship to ∏'s dock to unload goods from ∆'s ship. A storm developed during the unloading and by the time ∆ unloaded all the goods the storm was too violent for ∆ to leave safely. ∆ held fast to ∏'s dock during the storm, and as a result ∏'s dock was damaged by ∆'s ship.) Holding: Where a ∆'s life or property is menaced by an object or thing not belonging to ∏ or under ∏'s control, ∆ cannot use necessity as a defense when the ∆'s deliberate and direct actions to preserve his own property result in damages to ∏'s property. o Rule: Public necessity, in times of war or peace, may require the taking of private property for public purposes; but under our system of jurisprudence compensation must be made. o Notes from Vincent: a traveler upon the public highway is normally held to be privileged to turn out to avoid an obstruction, and to pass over the abutting land.

Intervening cause Criminal and fire

Watson v. Kentucky & Indiana Bridge - (Negligence of ∆, a railroad, caused a tank car full of gasoline to be derailed and its valve broken. Gas ran into the street. C, a 3rd person, struck a match, igniting the gasoline vapor, and injuring ∏. C testified that he struck the match to light a cigar and that when he dropped the match the explosion occurred before it reached the ground. Other witnesses, however, testified that C had said to a companion that he wanted to "set the damn thing on fire" and then struck a match and deliberately threw it into the gasoline vapor. T/C D/V for ∆ and ∏ appeals.) Held: Where an intervening criminal act occurs between a ∆'s primary negligence and ∏'s injuries the ∆ will not be liable for ∏'s injuries. (Case remanded b/c of conflicting evidence over whether the act was criminal and T/C should have sent the case to jury to decide whether the intervening act was criminal.) *Holding is not always true. Intervening criminal acts are superseding, unless they are "the same hazard" that makes ∆'s action negligent. o Rule: The mere fact that the concurrent cause or intervening act was unforeseen will not relieve the ∆ guilty of the primary negligence from liability, but if the 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 the criminal acts of others by which damage is inflicted and hence is not liable therefore. o -Intervening Criminal Acts. The principal case continues to be cited frequently, although the Kentucky Supreme Court has noted that criminal conduct no longer automatically interrupts the causal link in Kentucky. o Applying the holding from Derdiarian, when the risk of a criminal act occurring is the very same intervening act which renders the ∆ negligent, then the criminal act will not absolve the ∆ from liability.

What is present ability to commit the harm?

Western Union Telegraph Co. v Hill (∏ wants clock fixed and takes clock to ∆. ∆ makes sexual overtures directed at ∏, and attempts to touch ∏. ∏ scared.) To constitute an actionable assault there must be an intentional, unlawful, offer to touch the person of another in a rude or angry manner under such circumstances as to create in the mind of the party alleging the assault a well-founded fear of an imminent battery, coupled with the apparent present ability to effectuate the attempt, if not prevented. Must have a reasonable fear of the battery and a personal apprehension. D does have to IN FACT have ability to do it. P just have to reasonably think D does.

What is the exception to transferred intent?

When either the tort intended or the one accomplished does not fall within (intentional torts) the trespass action (direct and immediate application of force to the person or tangible property), the doctrine does not apply.

Winterbottom case (mail coaches

Winterbottom v. Wright - (∆, a manufacturer and repairer of mail coaches, contracted with the Postmaster General to keep the coaches in safe and secure condition. ∆ failed to comply with his promise and ∏, a mail coach driver, was seriously injured when a vehicle broke down due to lack of repair.) Held: Where a ∆'s duty arises out of a contract then the ∆'s duty extends only to the contracting party, and the ∆ owes no duty to those that are not in privity of contract with the ∆. (False Holding: it depends how the contract was breached! Nonfeasance, then this holding applies) o Rule: The only safe rule is to confine the right to recover to whose who enter into the contract (must be privity of contract)

Yellow Cab co. of D.C., Inc. v. Dreslin (hubby and wifey)

Yellow Cab co. of D.C., Inc. v. Dreslin - (Taxicab driven by one of ∆'s employees collided with a car in which ∏s were riding. One of ∏s is wife of driver. ∏s sued ∆ for damages and driver joined them. Among its defenses ∆ pleaded contributory negligence of ∆. It also cross-claimed against him for damages to the taxicab and for contribution for any sums recovered by the other ∏s against it. The jury's verdict established the collision to have been caused by concurrent negligent operation of the two cars. Judgments of varying amounts were entered in favor of all Ps except the driver. In addition a declaratory judgment was entered allowing the ∆ contribution against driver upon the several judgments except that of driver's wife. ∆ Appeals.) Held: An injured party plaintiff in the suit from which a right of contribution develops must have had a cause of action against the party from whom contribution is sought. o Rules for Case: Neither husband nor wife is liable for tortious acts by one against the other. (this is for peace keeping purposes, also for insurance fraud)

Is an intentional tortfeasor liable for resulting injuries that are more extensive than a reasonable person might have anticipated?

Yes

Is an intentional tortfeasor liable for resulting injuries that could not have been foreseen?

Yes

Is transferred intent applicable to assault?

Yes

Yun v Ford Motor Co.

Yun v. Ford Motor Co. - (∏ is owner of van. C was passenger in van. ∏'s van had a defective bracket on the back of the van which held the plastic cover and spare tire in place. Plastic cover and tire came out on highway. ∏ drove to the shoulder and C exited the vehicle on a rainy night and crossed several lanes of traffic to retrieve the tire. During the course of returning to the van C struck by car and killed. C sued numerous people. Among the ∆s was Kim's Mobile Service Center who had several weeks earlier serviced the van and pointed out the defective bracket, but failed to fix it after being instructed by ∏ not to fix it. Other ∆s included driver of car that struck ∏, Ford Motor Co., and the manufacturer of the spare tire assembly. SJ for ∆s in T/C.) Held: Where a tortfeasors negligent conduct is a substantial factor in bringing about ∏'s injuries the negligent actor will be held responsible for those injuries, but when concurrent forces are involved in the injuries inflicted upon a ∏, then the manufacturer of a defective product may negate strict liability upon a showing of an intervening superseding cause or the existence of another "sole proximate cause" of the resulting injury. Hold 2: Where concurrent forces are involved and the manner or type of harm caused is unexpected and in hindsight highly extraordinary, then reasonable minds cannot differ that the intervening acts are superseding as a matter of law. o Rule: 1) Proximate cause is any cause which in the natural and continuous sequence, unbroken by an efficient intervening cause, produces the result complained of and without which the result would not have occurred. 2) Generally a ∆'s standard of conduct is measured by the reaction to be expected of normal persons 3) The actor's conduct may be held not to be a legal cause of harm to another where after the event and looking back from the harm to the actor's negligent conduct, it appears to the court highly extraordinary that it should have brought about the harm. Dissent: Agrees with SJ for Kim and Ford Motor Co., but disagrees for other Ds. States that proximate cause is ordinarily a question of fact for the jury.

Snowy sidewalk case Zeni v. Anderson

Zeni v. Anderson - (Accident occurred on a snowy day in which the sidewalks were covered with snow. ∏ was on her way to work. It was unsafe for ∏ to walk on the snow covered sidewalks so ∏ walked on a well-used pedestrian snow path on the street, with her back to oncoming traffic. ∆ struck ∏ with her car causing serious injuries to ∏. ∏ sued ∆, and ∆ claimed the ∏ was contributorily negligent. ∏ won in T/C and ∆ appealed and A/C reversed T/C. ∆ alleges that ∏'s failure to use the sidewalk was contributory negligence because ∏ violated a statute which requires: "Where sidewalks are provided, it shall be unlawful for pedestrians to walk upon the main traveled portion of the highway. Where sidewalks are not provided, pedestrians shall, when practicable, walk on the left side of the highway facing traffic which passes nearest." ∏ appeals the A/C reversal of the T/C and ∏ wins.) Held: Where a court adopts a penal statute as the standard of care in an action for negligence, violation of the statute establishes a prima facie case of negligence, with the determination to be made by the finder of fact whether the party accused of violation the statute has established a legally sufficient excuse. o Rule: The rule concerning the proper role of a penal statute in a civil action for damages is that violation of the statute which has been found to apply to a particular set of facts establishes only a prima facie case of negligence, a presumption which may be rebutted by a showing on the part of the party violating the statute of an adequate excuse under the facts and circumstances of the case. The evidence required to rebut this presumption as a matter of law should be positive, unequivocal, strong, and credible. o Notes: In Michigan where this case sits the violation of a statute only creates a presumption of negligence (prima facie) with is a minority view. Michigan also allows the use of Due Care to be an excuse for the violation of the statute. Which I find to be rather stupid. Michigan needs to get it together.

What are privileges?

a) Defenses to intentional torts b) Can be broken down into two categories i) Consent: Defense that plaintiff consented to the invasion of his interest (1) Non existence of consent is part of the plaintiff's prima facie case, at least with respect to torts against the person and the tort of conversion (2) Not a privilege strictly speaking because the defendant does not bear burden of proof (a) Consent to trespass to land is usually considered to be a true privilege, and not a part of the plaintiff's prima facie case ii) Defenses that are imposed by law (1) Privileges (a) Defendant bears the burden of proving the existence of a privilege (i) Not an element of the plaintiff's prima facie case

What is the intent element to trespass to chattel?

a) INTENT: intent to cause harm not necessary; only intent to do an act which turns out to constitute an interference. i) Ex. Picking up books you think are yours and marking in them, that are in fact someone else's. (1) Mistake does not negate intent ii) Limited to intentional interference iii) Good faith mistake does not negate intent (1) Includes intent to ownership... D mistakenly believes the object is his own is no defense

Who determines IIED?

a) Jury is in the best position to determine whether outrageous conduct results in mental distress, because from their own experience they are aware of the extent and characteristics of the disagreeable emotions that may result from the defendant's conduct.

What are the notes from Mohr?

a) Medical care providers may act in the absence of express consent if 1) the patient is unable to give consent (unconscious, intoxicated, mentally ill, incompetent); 2) there is a risk of serious bodily harm if treatment is delayed; 3) a reasonable person would consent to treatment under the circumstances; and 4) this patient would consent to treatment under the circumstances. ♣ ∏ must be competent to refuse treatment. Generally a court order needed to overcome the refusal, unless it is an emergency. ♣ The right to refuse treatment not limited to those who are suffering from terminal conditions. ♣ In many states there are statutes that protect physicians from claims for damages based on their failure to withdraw life-sustaining medical care. ♣ In the case of a minor child, consent of the part is necessary to any major surgical operation, except in an emergency. ♣ When a parent refuses on religious or other grounds to allow a hospital to provide medical treatment for a child, courts are likely to grant a hospital's application to overrule the part if the treatment is life threatening, but not if it only will improve the child's comfort or appearance.

What is private necessity?

a) Private Necessity - protecting her own interest or those of a few

What is public necessity?

a) Public Necessity - D is protecting public as a whole, or a substantial number of persons i) Interference with land or chattels of another is necessary, or reasonably appears necessary, to prevent a disaster to the community, or to a substantial number of people. So long as there is no other less-damaging way

What is necessity?

a) SUMMARY: Under the defense of "necessity," D has a privilege to harm the property interest of P where this is necessary in order to prevent great harm to third persons or D herself. b) The defendant is privileged, because of unusual exigencies, to harm the plaintiff, even though the plaintiff himself is completely blameless. i) Distinction from other privileges where the privileges are generally triggered by wrongdoing on the part of the plaintiff.

Who has stricter standards for conduct?

a) Stricter Standards of Conduct for: i) For companies whose employees during the course of this work who use highly insulting language to a customer (1) Common carriers (2) Public Utilities (a) Hotels ii) Property right in the body. (1) IIED for mistreatment of burial places and human remains

DIstinction between campell and whelan

a. Distinction between Campbell i. Campbell - restroom is typically seen as a shopping experience (not rare for a customer to use the bathroom. ii. Campbell- P could have purchased something iii. Whelan- P is doing something that is not related to shopping iv. Whelan - P already purchased the thing for which he came to the store b. Court here said that if P had permission to go back into the store room he would be a licensee, but if P didn't have permission he would be a trespasser i. The distinction is consent

What are the elements for trespass to chattel?

a. without consensual or other privilege to do so b. uses or otherwise intentionally intermeddles with a chattel which is in the possession of another II. Is liable for a trespass to such person if either a) the chattel is impaired as to its condition, quality or value, or b) the possessor is deprived of the use of the chattel for a substantial time, or c) Bodily harm is thereby caused to the possessor or harm is caused to some person or thing in which the possessor has a legally protected interest. *In trespass to chattel, in contrast to trespass to land, the ∆ is not liable if ∆ simply intermeddles with the chattel.

What are compensatory damages?

actual harm caused

What is harmful contact?

causing pain or bodily damage

What is offensive contact?

damaging to a "reasonable sense of dignity". Mohr v. Williams (

What is the intent element of trespass to land?

i) Intent to harm not necessary only intent to trespass (contact) ii) Mistake of ownership does not negate intent to trespass (1) Mistake about legal title or consent won't block liability (a) Liable even if he enters land believing its his property (2) Reasonable mistakes don't bar liability (a) Exception: if mistaken belief is induced by the plaintiff's conduct (may be implied consent) iii) Liability not affected by conduct that was socially useful or even beneficial to the plaintiff

Is humiliation iied?

i) Liability does not extend to "mere insults, indignities, threats, annoyance, petty oppressions, or other trivialities" (a) P was repeatedly teased about his stutter over the course of months by his boss, D; D not liable - Harris v. Jones - Must go beyond bounds tolerated by society (i) A person who is merely teased does not have claim to IIED (ii) Exception: Some court have held that a plaintiff's status as an employee should entitle him to a greater degree of protection

What damages are offered for assault?

i) NO actual damages need be proven ii) Nominal damages iii) Mental suffering - forms foundation for Compensatory damages (1) If P suffers physical injury or ailment as a result of the assault, he may recover for this as well (a) Ex. Hit by a car trying to run away iv) Punitive damages - recoverable if the defendant's actions are sufficiently outrageous or malicious

Detention by merchants?

i) A number of courts have granted merchant's the privilege to temporarily detain for investigation a person who is reasonably suspected of stealing property. Must be goods held for sale (1) Must be limited by time. Question of ho long is reasonable? (a) Generally 10 or 15 min (2) No coercion - may not use detention to attempt to coerce payment (3) No arrest - may not purport to arrest the subject (would be fal. Imp.) (4) No confession - may not attempt to obtain a confession once it is determined the crime was committed (5) Force - Restatement allows reasonable force short of bodily harm (6) Off premises - Some cases have held the privilege only exist on the store's premises (a) Some cases have extended the privilege to areas immediately around the store (b) P was detained by an agent of the store, D, when another employee informed him that they suspected the plaintiff of taking goods. P was detained outside of the store but in the immediate premises; Held D had privilege -Bonkowski v. Arlan's Department Store (c) Court more likely to find privilege where the outdoor detention occurred on store's own property (i.e. store owned parking lot). ii) Some courts have extended the privilege to suppliers of services when the defendant has failed to pay

Re-entry upon real property

i) A property owner who has been deprived of his possession of his land may sometimes recover it by force, just as one deprived of possession of his chattels may. ii) A minority of jurisdictions have permitted an individual who has the legal right to immediate possession of land to attempt to retake possession by use of reasonable force short of causing death or serious injury. iii) Typically case - tenant who overstays the lease (1) Landlord has no right to use force (2) Usually legal means to allow speedy recovery for a land lord (3) Do allow entry without force (4) Most states provide the lawful owner with a quick and inexpensive remedy called "Forcible Entry and Detainer" where owner may retake possession of his land if he does not use force.

Richardson v. Chapman

i) An award of damages will be deemed excessive if it falls outside the range of fair and reasonable compensation or results from passion or prejudice, or if it is so large that it shocks the judicial conscience (1) Ps were injured when they were rear ended by a semi-trailer driven by D, while they were stopped at a red light. P's spinal injuries were so severe that she was rendered an "incomplete quadriplegic." P presented testimony of an expert economist, L, who testified that P's future medical expenses could range from $7.4 million to 9.6 million, lost wages could range between $1.1 million and $2.3 million. A jury awards P $22.4 million. D appealed arguing damages were excessive. Held, SC entered remittitur reducing P's relief by $1 million. Richardson v. Chapman. (a) Damages are based on present value

Cheatham v. Pohle

i) Any interest a plaintiff has in a punitive damages award is a creation of state law, and a state can allocate those damages as they see fit. (1) When P and D divorced D retained naked photographs he had taken of P in the nude and of the two engaged in consensual sexual activity. 4 years later, D made photocopies of the photographs, added P's name, work location and phone number, her new husband's name and distributed at least 60 copies around the small community where they both lived. A trial court awarded P $100,000 compensatory damages and $100,000 in punitive damages. A state code provided that 25% of the punitive damages were to go to P and 75% was to go into a violent crime victim's compensation fund. P appealed alleging that the statute violated the takings clause. SC affirmed the trial courts judgment. Cheatham v. Pohle

Are individual circumstances taken into account in IIED?

i) Individual circumstances: Court will take into account the particular characteristics of the plaintiff, and the relationship between him and the defendant. (1) If plaintiff is young, developmentally disabled, or has dementia D's conduct might be held outrageous even though it would not be so if P were a normal adult (2) Defendant's knowledge of plaintiff's sensitivity: D liable for IIED where he is aware of sensitivity. (3) Some court afford special protection to: (a) Pregnant women and hypersensitive or idiosyncratic persons

are insults iied?

i) Insults even extremes ones do not constitute IIED. (1) P was told she stunk in the defendant's store. D not liable -Slocum v. Food Fair Stores of Florida

What are the specifics of the confinement element of false imprisonment?

i) Plaintiff must be confined within definite physical boundaries (1) Blocking the Plaintiff's path is not enough - Bird v. Jones (a) P confined in the sense that he was not permitted to go in the spectating area, but free to go the way in which he came (2) Preventing plaintiff form entering certain places not false imprisonment ii) Confinement can be as large as a state

What must plaintiff show about D's conduct?

i) Plaintiff must show defendant's conduct was extreme and outrageous (1) "Restatement says the conduct must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, 'Outrageous!'" ii) Cabined Tort: conduct must exceed the bounds tolerated by society (1) To be determined by the courts in each state

Can intent be transferred in IIED?

i) Transferred intent - does not apply broadly (1) Only applicable if, P is physical present and known by D to be present and (a) If target of the outrageous conduct is P's immediate family member. P can recover even if the distress does not result in bodily harm; or (b) the emotional distress suffered by P led to bodily harm (2) No liability if D does not know of P's presence -Taylor v. Vallelunga (a) P watches her father being beaten up by D, and as a result suffers severe emotional distress; D did not know of P's presence; no liability for IIED -Taylor v. Vallelunga (3) "Sensory and contemporaneous observance of defendant's acts," does not require P to be able to see what's happening (4) Some courts have allowed immediate family members to recover even though they were not present at the time of the act.

What are nominal damages?

minimal (token sum) (1) Recoverable even if not actual damages are proven (2) Recoverable even if not compensatory damages (3) Recoverable for intentional torts but not negligence cases

Familiy purpose doctrine

o "Family Car Doctrine": Court created legal function by which the owner of an automobile is held vicariously liable when the care is negligently driven by a member of the immediate family. If a family member is using a car with permission of the owner (head(s) of the household) for a family purpose, the driver is considered the agent.

• SL does not protect people who are doing extraordinary and usual activities on their property.

o A person carrying on an abnormally dangerous activity is not strictly liable for damage which is not within the scope of danger created by that activity o The policy also does not protect people that are using the land for extraordinary and unusual use of the land

Attorneys (claggett)

o Attorneys. As this case reflects, the privity duty limitation has also been utilized by attorneys when they have committed an act of professional negligence. In many jurisdictions the privity limitation is still strictly applied.

Problems with Bartlett

o Court: "Joint and several liability is not to be retained in our pure comparative negligence system on a theory of one indivisible wrong. The concept of one indivisible wrong, based on common law technicalities, is obsolete, and is not to be applied in comparative negligence cases in New Mexico." o Problems with Bartlett: ♣ 1) One of the ∆s may be insolvent. Ex: Phantom driver responsible for 70% of the injury may not have insurance and then ∏ would be forced to bear 70% of the damages. ♣ 2) One of ∆s may not be present, as is the case here with the phantom driver, and the jury is attributing 70% of the liability to phantom driver even though phantom driver does not have chance to refute that evidence.

Creswell's "Better Rule":

o Creswell's "Better Rule": There must not exist a policy reason to deny the liability of the contributory ∆ to the ∏. (policy reasons under rule that bar liability must be inapplicable to a suit between the two negligent parties)

Vis Major

o Damage from strict liability activity cannot be an act of God, that is the ∆'s negligence or strict liability was precluded from being a substantial factor in the cause of the event. If negligent the vis major must be such that the vis major precluded the negligence from being a vis major

Exceptions to contr. neg.

o Exceptions for avoiding application of contributory negligence unjustly: ♣ Burden of Proof: burden of proving contributory negligence is on the ∆ ♣ Leaving the question of contributory negligence to the jury ♣ Causation in Fact: ∏'s negligence will bar recovery only if it is a substantial factor in bringing about the result. ♣ Proximate cause: proximate cause only applies to risks that ∏ exposed himself to by act of his negligence.

strict L for animals

o Four variants of the rule- Showing that the law follows what society is doing o Strict liability o Fencing in (Common in East- row crops are predominant) o Fencing out (Common in West- cattle industry is predominant) o No liability w/o fault o Fencing out- if P fenced his land properly there was strict liability when the animals broke through the fence , otherwise there was liability only when the owner was negligent o Fencing in- requires the owner of the animals to fence them in or otherwise restrain them, and made the owner strictly liable if he did not do so o Owners of wild animals will be held strictly liable for any injuries they may cause o Domestic animals are entitled to one bite UNLESS the owner has reason to know that the animal has a dangerous propensity then there would be strict liability

general rule for ind. contractors

o General rule: Employer of independent contractors are not vicariously liable for negligent acts of the independent contractor. Why? : 1. No right to control detail of the work by employer 2. The enterprise is that of the contractor, not the employer 3. Independent contractors, as a class, are financially responsible

Joint and several liability

o Liability. "Joint and several liability" means that each of several tortfeasors is liable jointly with the others for the amount of the judgment against them, and that each is also individually liable for the full amount. The ∏ can collect from any one of them or any group.

Assumption of risk and SL

o One can assume the risk of SL and thereby be barred from recovery o Contributory negligence however is not a defense, SL is not rooted in negligence law, therefore if we were to allow contributory negligence we would be asking to compare two negligent parties but how do you do this when one is negligent and the other although he is blasting is doing so with care. o Therefore as far as AOR goes if a person knows of an animal vicious propensities and continues to mess with it we can say that he brought the injury to calamity upon himself o Rational for not contributory negligence defense for SL ♣ It is not that we want to impose upon it is just that SL is so important we want to have it but make sure that it "pays its own way" ♣ Some negligent Ps may expose themselves accidentally and this is an abnormal activity

What are the problems wth automobile guest statutes?

o Problems with automobile guest statutes: 1) who is a guest? 2) What conduct fits definitions of gross negligence, recklessness, and willful and wanton? 3) Whether or not the ∏ needed to prove that the ∆ had actual knowledge of the risk involved. -Many states found guest statutes unconstitutional under either state or federal constitutional provisions. The most important decision in this area is Brown v. Merlo the California Supreme Court held that California's guest statute violated the Equal Protection Clause of the U.S. Constitution because it's "over-inclusive"—in order to guard against a few collusive suits, it denies recovery to a much larger class of non-colluding plaintiffs. -Today, only 9 states have guest statutes still in force, and two of the states (Texas and Illinois) are of restricted application. -Intoxication. It is sometimes held to be gross negligence where the host driver drives while intoxicated.

Reason for comparative neg.

o Reason: Justice simply will not permit our continued adherence to a rule (contributory negligence rule) that, in the face of a judicial determination that others bear primary responsibility, nevertheless completely denies injured litigants recompense for their damages.

Reasons for contr. neg.

o Reasons: ♣ Punish ∏ for negligence ♣ Court will not assist one who lacks "clean hands" ♣ Create deterrent against ∏ acting negligently ♣ ∏'s act of negligence is not superseding (so ∆'s negligence is not proximate cause)

WHat is the rule of defense of property

o Rule: "The value of human life and limb, not only to the individual concerned, but also to society, so outweighs the interest of a possessor of land in excluding from it those whom he is not willing to admit thereto that a possessor of land has, as is stated in § 79, no privilege to use force intended or likely to cause death or serious harm against another whom the possessor sees about to enter his premises or meddle with chattel, unless the intrusion threatens death or serious bodily harm to the occupiers or users of the premises. A possessor of land cannot do indirectly and by a mechanical device that which, were he present, he could not immediately and in person. Therefore, he cannot gain a privilege to install, for the purpose of protecting his land from intrusions harmless to the lives and limbs of the occupiers or users of it, a mechanical device whose only purpose is to inflict death or serious harm upon such as may intrude, by giving notice of his intention to inflict, by mechanical means and indirectly, harm which he could not, even after request, inflict directly were he present." Restatement of Torts § 85, 180.

When does RIL apply?

o Rule: RIL applies when ♣ There was an accident ♣ The thing that caused the accident was in exclusive control by ∆ ♣ The accident would not have occurred in ordinary course of affairs if ∆ was using ordinary care. o Judicial Notice: taking notice of a fact that would be considered common knowledge o Notes: ♣ -Some older cases required that ∆ have "exclusive control." Modern cases tend to focus more on including the conduct of the ∏ and 3rd persons, are sufficiently eliminated by the evidence rather than strictly on the traditional "exclusive control" language. ♣ -Defendant's Superior Knowledge: It has sometimes been said that the basis of res ipsa loquitur is the ∆'s superior knowledge, or ability to obtain evidence, as to just what occurred; or in other words, that the purpose of the rule is to "smoke out" evidence that the ∆ has or can get and ∏ cannot. Most of the cases, however, hold that res ipsa loquitur applies, even though the ∆'s knowledge is not superior to that of the ∏. ♣ -Car leaving highway: there is general agreement that the fact that an automobile leaves the traveled portion of the highway and overturns, or crashes into a stationary object, is enough, in the absence of explanation, to make out a res ipsa loquitur case against the driver

What does course of employment include?

o The "Course of Employment" includes: ♣ Acts for the comfort, convenience and health of employee at work ♣ Acts combining the business of employee and employer ♣ Even willful and malicious acts of employment ♣ Even acts that contravene express company rules

Comparative Negligence v. Joint & Several Liability

o The principal difference between the two systems arises when the shares of one or more tortfeasors cannot be collected from them. Under joint and several liability, the ∏ can collect from one (or more) of the tortfeasors (sometimes called the "Deep Pocket") and leave it up to that ∆ either to obtain contribution from the others or to bear the loss alone. Under several liability, each tortfeasor pays no more than his apportioned share, and the injured part bears the loss of any uncollectible share. Some courts have found that the public policy reasons for requiring tortfeasors rather than injured persons to bear the burden of uncollectible portions of the damages continue even with the adoption of comparative negligence.

Negligence Per se

o There is negligence per se if: 1) The statute imposes a specific duty for the protection or benefit of others, 2) The plaintiff is one of those for whose protection or benefit the duty was imposed, and 3) The plaintiff's injury is of the character that the statute was designed to prevent. Negligence per se: when a safety statute has a sufficiently close application to the facts of the case at hand, an unexcused violation of that statute is "negligence per se," and the ∆ will not be permitted to show that the legislature set an unduly high standard of care. The negligence per se doctrine is a result of courts adopting the standard of conduct from the criminal statute and laying it down as a rule in a civil action. There must be causal link between the act constituting a violation and the resulting injury. o Negligence per se normally applies to violations of local ordinances and administrative regulations just as to ordinary statutes. o Majority v. Minority: Most courts follow the rule that an unexcused violation of a statute that is applicable to the facts conclusively establishes negligence per se. A few courts hold, however, that such a violation is not conclusive evidence of a violation and is simply nothing more than evidence of negligence.

Third party beneficiary (claggett)

o Third Party Beneficiaries. Cases in which attorneys have been liable to third parties generally have involved beneficiaries of wills. Whenever an attorney's work product is primarily for the benefit of a third party, potential liability can arise. ** The privity limitation lasted longer with regard to those who perform services. It is clear today, however, that an individual who undertakes to make a repair owes a duty to use care to those who may be foreseeably injured in case the repair is negligently made.

Three types of compar. neg.

o Three Types of Comparative Negligence: ♣ "Pure Comparative Negligence"—12 states (Florida) ♣ "Not as great as" (49% limit on P)—12 states (Georgia and Tenn) ♣ "Not greater than" (50% limit)—20 states (South Carolina) ♣ "Slight/Gross" South Dakota is the only remaining jurisdiction that apportions damages so long as ∏'s negligence "was slight in comparison with the negligence of the ∆."

Cases involving unforeseeable consequences

polemis/wagon mound

What are the elements of false imprisonment?

restraint of an individual, who is aware of their confinement, against their will, by force or threat of immediate force, no legal right to do so, and no reasonable, apparent exit.

Negligent maintenence

♣ Roof was so weak a normal wind would have blown it off • Jury Question ♣ Roof would have withstood a normal wing this was an unusually strong wind • Judge ♣ Normal winds would have blown it off but this was wind that was strong enough for a good roof to be blown off • Jury Question

Blyth v. Birmingham Water

• Blyth v. Birmingham Water- (∆s installed pipes in streets that froze during the winter and water escapes causing damage to ∏'s house) Held: A ∆ is negligent when a ∆'s acts or omissions result in destruction to ∏'s property if the omission was to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do or if the action involved doing something which a prudent and reasonable man would not do. • Rule: Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do. **Here not negligent because he could not have foreseen this result

o An employer is liable for punitive damages for acts of employee if:

♣ The employer authorizes or ratifies the action ♣ The employee is acting in a managerial position ♣ Scope of employment

Five Exceptions to the rule of General Duty to Use Due Care:

♣ To avoid inflicting only mental distress ♣ In failing to take action ♣ To avoid injury to unborn children ♣ To fulfill contract duties to one not in privity ♣ To avoid inflicting only economic harm

o Reasons for non-delegable duty

♣ ∆'s statutory duty to maintain the brakes in good working order ♣ ∆'s activity involves instrumentality risking injury or death ♣ Driving car is ∆'s enterprise ♣ ∆ benefits from use of the car ♣ The need for a financially responsible ∆ ♣ ∆ selects the contractor ♣ Liability insurance distributes the cost

What is the escape element of false imprisonment?

• a means of escape is not reasonable if ∏ does not know it exists, and it is not apparent. • if the only means of escape would cause physical danger to ∏, and he could remain "imprisoned" w/o any risk of harm, he may not recover injuries he suffers in making his escape • false imprisonment is exclusively an intentional tort. Negligence resulting in actual confinement of another can bring a negligence action, but only if some actual damages resulted from the confinement. • retention of ∏'s property sometimes may provide the "restraint" necessary to constitute false imprisonment. • false imprisonment has not been extended beyond such direct duress to person or to property. • False imprisonment future actions and/or threats not enough. Similar to assault.

Other special relations that have been held to impose a duty to take reasonable affirmative action to aid are:

♣ Common carrier and passenger. ♣ Innkeeper and guest, as least to the extent of aiding the guest to escape from a fire in the hotel. ♣ Temporary legal custodian and his charge (Ex: jailor and prisoner; teacher and pupil) ♣ Husband to wife ♣ Parent to Child ♣ Negligent injury by ∆: When the ∆ by his own negligence injures another, there is general agreement that he is then under a duty to take reasonable affirmative action to aid him. ♣ Innocent injury by ∆: When ∆, without negligence, creates a dangerous condition in the highway, it is agreed that he is under a duty to take reasonable precautions against injury to persons using it. ♣ "Hit and run driver" statutes, requiring an automobile driver involved in an accident to stop and give aid, have been held in a number of states to mean that a failure to do so is negligence per se. A duty to act may be imposed whenever the ∆ assumes a responsibility to act and such undertaking increases the risk of such harm, or is relied upon by the ∏ to her detriment. The duty to act affirmatively to protect another may be seen to spring from a ∆'s voluntary undertaking and the ∏'s detrimental reliance upon it. Where the ∆'s omission in such circumstances causes the ∏ personal injury the courts have widely recognized the duty.

Applicability of contr.neg.

♣ Contributory negligence is not a defense to an intentional tort! ♣ Generally contributory negligence can still be a defense even though ∆ was negligent per se ♣ Not a defense in statutes intended to protect ∏ unable to protect himself (child labor, firearms to minors, sale of liquor to intoxicated persons, etc.)

Factors to Consider: Employee v. Independent Contractor:

♣ Does employer supervise employees work? ♣ Length of employment? ♣ Terms of contract ♣ Employer have right to control details of work? ♣ Method of payment

o Factors to Consider if Something is Abnormally Dangerous:

♣ Existence of a high degree of risk of harm ♣ Likelihood that the harm will be great ♣ Inability to eliminate the risk by using reasonable care ♣ Extent to which the activity is not a matter of common usage ♣ Inappropriateness of the activity to its location ♣ Extent to which its value it outweighed by its dangerousness

o Four major exceptions to General Rule of Independent Contractors:

♣ Non-delegable duties ♣ Apparent authority ♣ Inherently dangerous activities "peculiar risk" ♣ Illegal activities ♣ Negligence by employer in hiring or direction (this isn't really an exception because the employer is actually negligent)