Torts - Lamkin

§ 519 Strict Liability - General Principle

1. One who carries on an abnormally dangerous activity is subject to liability for harm for the harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm. 2. This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous. (foreseeable harms - was the harm that resulted among the harm that made the Ds activity abnormally dangerous?)

Strict Liability Explained

*SL helps to deter D from doing acts or at least doing act in a different manner/location. A person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. Note: Restatement approach to SL grew out of Rylands - two conditions: non-natural and escapes

§ 315 Duty to Control 3rd Persons - General Principal

A does not have a duty to prevent B from harming C unless a) A's special relationship with B creates a duty to control B's conduct, or b) A's special relationship with C gives C a right to A's protection

§ 265 Reliance Upon Servant's Statements

1. A master is subject to liability for torts which result from reliance upon or belief in, statements or other conduct within an agent's apparent authority 2. Unless there has been reliance, the principal is not liable in tort for conduct of a servant or other agent merely because it is within his apparent authority or apparent scope of employment

§ 220 Definition of Servant

1. A servant is a person employed to perform services in the affairs of another and who with respect to the physical conduct in performance of the services is subject to the other's control or right to control 2. In determining whether one action for another is a servant or an independent contractor, the following matter of fact, among others are considered: a. The extent of control the master exercises over the work b. The extent the employee is engaged in work distinct or different from the master's work c. The extent to which the employee's work is usually supervised or done independently d. The skill required of the employee's work e. Whether the employee or employer supplies the workers tools f. The length of time for which the worker is employed g. Whether the employee is paid by the job or by time h. Whether or not the employee's work is part of the employer's regular business i. What the parties believe about their relationship j. Whether the principal is or is not in business

§ 18 Battery: Offensive Contact

1. An actor is subject to liability to another for battery if: a. He acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and b. An offensive contact with the person of the other directly or indirectly results 2. An act which is not done with the intention stated in subsection 1a does not make the actor liable to the other for a mere offensive contact with the other's person although the act involves an unreasonable risk of infliction it and, therefore, would be negligent or reckless if the risk threatened bodily harm

The Tunkl Test - to determine if a waiver is against public policy

1. Business is subject of public regulation - indication of importance to the public 2. The party seeking release a. Provides service of great importance to public b. Performs service for any qualifying member of the public 3. Because of essential nature of the service, party invoking exculpation has decisive bargaining advantage 4. Release makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence 5. The person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents Order of factors not necessarily important; also don't need all factors to be present to make a waiver unenforceable

§ 321 Duty to Act when Prior Conduct is Found to be Dangerous

1. If the actor does an act, and subsequently realizes or should realize that it has created an unreasonable risk of causing physical harm to another, he is under a duty to exercise reasonable care to prevent the risk from taking effect. 2. The rule stated in subsection (1) applies even though at the time of the act the actor has no reason to believe that it will involve such a risk

§ 892 Meaning of Consent

1. Consent is willingness in fact for conduct to occur. It may be manifested by action or inaction and need not be communicated to the actor. 2. If words or conduct are reasonably understood by another to be intended as consent, they constitute apparent consent and are as effective as consent in fact A party can consent to being touched in a way that ordinarily would constitute battery on the part of the D.

4 Elements of Battery

1. D intends to make contact with P, or a. realizes that contact/harm is substantially certain to result (pulling chair out hypo) 2. D does make contact with P, or a. P suffers harm as a result of an act that was done with substantial certainty 3. Contact is offensive or harmful 4. Contact is "wrong" based on situation specific circumstances

5 Elements of Trespass

1. D intentionally enters P's land 2. D intentionally causes a thing or third party to enter P's land 3. D intentionally remains on P's land longer than P has allowed 4. D intentionally fails to remove a thing from P's land which D has a duty to remove. 5. A mistake by D does not excuse D's liability for trespassing.

§46 - 4 Elements of Outrage:

1. Defendant acted intentionally or recklessly; and 2. Defendant's conduct was extreme and outrageous; and 3. Defendant's act is the cause of the distress; and 4. Plaintiff suffers severe emotional distress as a result of defendant's conduct.

§ 218 - D is liable for trespass to chattel if D intentionally:

1. Dispossesses the other of the chattel; or 2. The chattel is impaired as to its condition, quality, or value, or 3. The possessor is deprived of the use of the chattel for a substantial time, or 4. Bodily harm is caused to the possessor, or harm is caused to some person or thing in which the possessor has a legally protected interest.

5 Elements of Negligence

1. Duty: D has a legal duty to exercise reasonable care in relation to P 2. Breach of Duty: D has failed to exercise reasonable care 3. Cause-in-Fact: "but for" D's breach of duty of exercise reasonable care, P would not have been harmed 4. Proximate Cause: It was reasonably foreseeable that D's failure to exercise reasonable care would cause P harm 5. Damages: P suffered a legally cognizable harm

§ 892 Consent to Crime

1. Except as stated in subsection 2, consent is effective to bar recovery in a tort action although the conduct consented to is a crime 2. If conduct is made criminal in order to protect a certain class of persons irrespective of their consent, the consent of that class to the conduct is not effective to bar a tort action

§ 496 Express Assumption of Risk

1. Parties can waive claims for negligence, recklessness - 'even for conduct intended to invade the plaintiff's interests - as long as it's freely entered into and there's no disparity in bargaining power. a. Must be clear P saw the terms, understood them, and agreed to them b. Agreements construed strictly against party seeking the release c. Agreement must show parties intended it to apply to the particular conduct that caused P's harm 2. Waiver generally not enforced where there's a big disparity of bargaining power; Factors that lead to non-enforcement: a. D's monopoly of a particular field of service b. Everyone in a particular field insists on assumption of risk, so the service can't be obtained without a waiver c. The service being sought is really important to P, so he has no alternative but to agree to the waiver

§ 222A - 6 Elements of Conversion

1. The extent and duration of D's exercise of control over P's chattel 2. D's intention to assert control over P's chattel in contravention of P's ownership of the chattel 3. D's good faith 4. The extent and duration of D's interference with the chattel 5. The harm done to the chattel 6. The inconvenience and expense done to P

Express Assumption of Risk

2 issues: 1. Does exculpatory clause cover D's behavior? 2. Is the K enforceable? Ct look with skepticism at these types of agreements - they limit it in 2 ways: 1. Construe narrowly - any ambiguity will be construed in favor of P 2. Sometimes they invalidate them completely

Duty Arising from the Occupation of Land

Note: If not a trespasser, and not an invitee, then likely a licensee. Injured party (Plaintiff) wants to be an invitee!! For all of them - the standard for conducting activities is a duty to use reasonable care.

Affirmative Defenses to Trespass

A D can raise an affirmative defense to excuse liability even if all the aspects of trespass are present.

§ 19 What Constitutes Offensive Contact

A bodily contact is offensive if it offends a reasonable sense of personal dignity

Affirmative Defenses to Battery

A defendant can raise an affirmative defense to excuse liability even if all the aspects of battery are present.

CONVERSION

A defendant is liable for conversion if his intentional exercise of control over the plaintiff's chattel is so serious that it may warrant the defendant having to pay to replace the full value of the chattel.

Duty arising from Undertakings

A defendant who had no duty to a stranger may acquire a duty by undertaking to provide assistance or otherwise voluntarily assuming responsibilities.

Alternative Liability Explained

Note: Use alternative liability when you can determine that multiple Ds have breached their duty of reasonable care with respect to P but cannot conclusively determine which D was cause in fact of P's injury

R3d § 3 Negligence

A person acts with negligence if the person does not exercise reasonable care under all circumstances. Primary factors to consider in ascertaining whether the person's conduct lacks reasonable care are the foreseeable likelihood that it will result in harm, the foreseeable severity of the harm that may ensure, and the burden of precautions to eliminate or reduce the risk.

Morgan v. Loyacomo

BATTERY CASE - "shopkeeper detains not thief" 1. Shopkeeper D thinks P is a thief, runs after P, detains her and snatches bag from her hand 2. Shopkeeper is liable to P for battery 3. It is not necessary for D's body to actually contact P's body. D can make contact with something in P's control and still be liable for battery.

Stangle v. Fireman's Insurance

AFFIRMATIVE ACTS CASE - "theft, can't use phone" 1. P is selling ring in D's building; buyer actually steals ring 2. P runs to D's receptionist and asks to use phone; D says no 3. D not negligent because it's a private business not open to the public (not like public road - Globe) 4. Party relationships different (Soldano: business owner & customer; Stangle: Employee at work and someone using building for unrelated transaction) 5. P argues "emergency" should include criminal proceedings - ct disagrees - policy consideration: slippery slope if we include all crimes (even petty ones)

Proximate Cause: Remoteness and Foreseeability

ASK: Is harm P suffered within the scope of risk that D should have foreseen when acting negligently?

Knight v. Jewett

BATTERY CASE - "touch football = amputated hand" 1. P and D playing a game of touch football; P got knocked down and D stepped on her hand 2. D not liable bc he didn't intend to step on her - no intent to make contact

Pridham v. Cash and Carry Building Ctr, Inc

ADDITIONAL HARM RESULTING FROM EFFORTS TO MITIGATE - "ambulance driver heart attack" 1. Clerk at D's showroom negligently untied a rope securing panels, causing them to fall onto P; P placed on stretcher carried into ambulance; on the way to the hospital, ambulance driver suffers a heart attack, crashes and kills P. 2. Ct finds D liable for original harm and subsequent harm (additional bodily harm resulting from normal efforts of third persons rendering aid) because he placed P in a position where P risked additional negligence through a need to rescue because of first harm. 3. Idea is when your negligence foreseeably causes someone serious injury, it is entirely foreseeable that further harm could occur (putting them in harm inherently involved in receiving med care)

Frank v. US

AFFIRMATIVE ACTS CASE - "Coast guard can't save guy overboard" 1. Coast Guard towing a boat, guy on the boat goes for a stroll on the deck, real bad choice on his part 2. Guy drowns and family sues claiming three causes of action: 1) boat's reverse gear was busted, 2) not enough life rings onboard, 3) boat was understaffed 3. CG not liable though because they were doing the best they could with limited resources, didn't put decedent in worse position, and weren't negligent in effecting rescue, P's three causes of actions were things that D could not have foreseen would hinder rescue, didn't anticipate needing to effectuate rescue 4. Distinguish Frank & Lawter Frank: undertook to tow ship, that was the extent of their duty, didn't increase the risk of harm, it was his going for a walk that increased harm; Lawter: put her in a worse position; she fully relied on them.

Thompson v. County of Alameda

AFFIRMATIVE ACTS CASE - "County not liable for failure to warn neighborhood" 1. County jail releases juvenile offender who has claimed that he wants to kill a young boy. Offender does kill the child of the couple next door to where he lives upon his release. 2. Child's parents sue the county for not warning the neighborhood that this dangerous offender had moved in; they claim the county knew of killer's intentions 3. Court finds county not liable for two reasons, 1) offender's threat wasn't against a specific person so county would have to warn the entire neighborhood which creates a big burden; 2) warning might have stigmatized the neighborhood against future parolees from this program 4. Distinguish from Tarasoff - burden much higher here, while probability of reducing risk pretty low. It will also desensitize people to warnings (think: sex offender website)

O'Neil v. Montefiore Hospital

AFFIRMATIVE ACTS CASE - "Doc D liable for beginning treatment" 1. P's husband has heart attack, goes to hospital. Hospital staff says they can't treat because P doesn't have right health insurance. P's husband does however consult via phone with a doc but is sent home after phone consult. 2. P's husband dies at home and P sues. D hospital liable because doc had begun treatment (§323) 3. Once D starts to rescue/care for/treat P, if D stops and P suffers harm as a result of D stopping, then D is liable under §323. 4. Key factor: O'neil relied on doctor and that reliance was reasonable.

Bradshaw v. Daniel

AFFIRMATIVE ACTS CASE - "Rocky Mt Spotted fever tick" 1. Husband admitted to hospital & diagnosed with RMSF by D Dr, and died. A week later wife died of RMSF. Son of parents, P, sued D for failing to warn wife that she might have the dz. 2. D argued that he owed his pt's wife no duty bc no dr-pt relationship and bc RMSF is not contagious. 3. Ct held doc liable bc there was a foreseeable risk of harm to an identifiable third party. 4. Note: Narrow duty; burden on doc is low and reduction in risk is great

Klein v. 1500 Mass Avenue Corp.

AFFIRMATIVE ACTS CASE - "assault and robbery in apartment bldg." 1. P is tenant in D's building. There have been a number of robberies and assaults lately, P was assaulted. 2. P sues that D didn't have a doorman, or a locked gate, or other precautions. The court holds D liable on these grounds and because of their relationship as LL and tenant, D owed P a duty. P had given up control over her own protection to D as part of their relationship. 3. If D had knowledge of assaults occurring and didn't take precautions like installing locks on the gate, then D liable (315(a)). 4. LL is in better position to protect (than tenant or police) and is in a position to pass cost of precautions onto tenants (instead of all taxpayers if we relied on cops) - this ruling may increase rent but will be offset by savings in less robberies/assaults.

Trans-Pacific Fishing & Packing Co.

AFFIRMATIVE ACTS CASE - "crew member thrusts finger into turtle eyes" 1. 3 crewmen on fishing boat get washed overboard, but captain does not search for the 3 men bc it was dangerous. 2. TC rules for P crewmen bc it is the duty of every ship-owner to use every possible available means to rescue members of its crew. 3. Distinction from Yania: no conduct on part of D here; special relationship (captain - crew member) and capt is responsible for crew members; burden on D is lower (he is better equipped to handle this situation)

Hurley v. Eddingfield

AFFIRMATIVE ACTS CASE - "doc refuses to provide care" 1. D, doctor is P's family physician. P is dangerously ill, relies on D for attention, and D refuses to render aid. 2. D not liable bc physicians are not bound to render care to everyone who asks.

Yania v. Bigan

AFFIRMATIVE ACTS CASE - "guy drowns in hole - D doesn't rescue" 1. P jumps into hole on D's property at D's urging and drowns; D did not warn of danger, D did not attempt rescue 2. If D had assured P that P would be safe and D knew that in fact it wasn't safe and hazard wasn't apparent to P, D could be liable - but hazard was obvious 3. D is not liable in this case because he did not induce P to jump, thus didn't have a duty to warn, and also did not have a duty to rescue 4. D has no duty to rescue P, the taunting was not the act that created the risk.

Lawter v. US

AFFIRMATIVE ACTS CASE - "helicopter drops P while rescuing" 1. Coast guard helicopter attempts to rescue the P who is in the sea. Least experienced crewmember is operating the winch, winch drops P, who suffers harm. 2. D liable because D had begun rescue, and P relied on D for rescue, D placed P in a worse state of harm. 3. Note: even innocent (non-neg) conduct that creates harm will impose a duty on D (ex: in Yania, if D had non-negligently bumped into P to make him fall in hole, duty on D to use reasonable care to rescue)

Soldano v. O'Daniels

AFFIRMATIVE ACTS CASE - "hotel won't allow use of phone" 1. D owns bar and hotel across the street; patron enters hotel from bar wanting to use phone to call police because P has been threatened at bar. 2. D does not allow use of phone, P is harmed. 3. D negligent because D is public business open during the normal course of business (no threat of clockwork orange - B 4. Note: this is a narrow exception to general rule of no duty!! 5. Bar owner actively prevented help; cost of imposition seems low; policy considerations

Weirum v. RKO Radio

AFFIRMATIVE ACTS CASE - "kids chasing dj; crash w/third party" 1. Kids chasing DJ D around LA; speeding, get in car crash with P; P sues DJ D 2. D liable because his conduct created an unreasonable risk to P; thus owed P a duty 3. Drivers obviously have a duty - general rule for duty when participating in conduct that could create harm 4. Distinguish from Yania: youthfulness in Weirum; in Yania, injured person was responsible but Weirum was 3rd party injured

Tarasoff v. Regents of Cal

AFFIRMATIVE ACTS CASE - "psych patient tells doc he's gonna kill P" 1. Pysch patient tells his therapist that he's going to kill Tarasoff; therapist warns police but does not warn Tarasoff; guy kills Tarasoff, family sues therapist on grounds that he was negligent in not warning Tarasoff 2. Therapist liable; burden of warning Tarasoff would have been small 3. Docs and therapist liable if they don't warn B that their patients confess that they want to hurt B (315(a)) 4. Policy considerations: Against duty Dr/pt confidentiality; breached trust of patient (less likely to disclose info); docs less likely to take dangerous pts; difficult to distinguish actual threats from crazy talk. For duty they have training to deal with these types of situations (they should know better); cost is pretty low and the risk reduction is great

Globe Iron v. New York Cent.

AFFIRMATIVE ACTS CASE - "train and factory fire" 1. P's factory on fire; D's train passing between P's factory and firefighters 2. D won't stop (which would have been easy) to allow firefighters access to P's fire 3. D liable for negligence because he's using a public road, and there is an emergency 4. Train owe duty to yield rights to not increase hazard 5. Like Yania, Ds saw Ps in trouble and failed to take action; but unlike Yania, the train interfered with the operation of the street, yania - the taunting was not the act creating the risk, but globe - interfered with rescue efforts. 6. There is a duty not to interfere with others efforts to rescue.

Wright v. Haffke

AFFIRMATIVE DEFENSES TO BATTERY - "clerk shoots robber" 1. D shoots robber in back as P is fleeing scene of crime with money; P sues; D not liable 2. D is privileged to use force to prevent or stop an ongoing robbery or other serious crime at which D is present, thus can exercise judgment about application of force. 3. Policy = people should be able to defend themselves and their property (while its in the process of happening, you are allowed to try to stop the crime from happening.)

Woodbridge v. Marks

AFFIRMATIVE DEFENSES TO BATTERY - "dog attacks" 1. P gets mauled by D's dogs late at night because he strayed off path 2. Simply keeping a ferocious dog on your property that then bites a P does not automatically induce liability. The circumstances of the confinement matters - not a blanket rule 3. If the D can show that he took plenty of precautions and exercised prudence, may not be liable. 4. *Compared to Katco - spring guns do only 1 thing, dogs serve multiple purposes

Crabtree v. Dawson

AFFIRMATIVE DEFENSES TO BATTERY - "mistaken identity" 1. D thought P was someone else coming to cause him harm; D called out to tell P not to come any closer; P did; D hit P causing injuries; P sued 2. D is privileged to use force in self-defense even if mistaken about the identity/intentions of the P as long as the D can prove he had reasonable cause to believe his life was in danger, and had exercised prudence in use of force. 3. If belief (no matter how reasonable) is wrong and property was the only thing at stake - liable (no privilege to use even just the minimum force necessary)

Katko v. Briney

AFFIRMATIVE DEFENSES TO BATTERY - "spring gun" 1. D sets up spring gun in his storage house to stop thefts 2. Thief P is shot by spring gun while attempting theft of D's house; P sues; D liable 3. D is NOT privileged to set a dangerous/life-threatening trap to forestall a theft 4. Emphasis on proportionality - generally, property owners have a privilege to use only the minimum force necessary 5. Policy = the absence of the D and the indiscriminate nature of the trap poses a threat to human life which the law values above property.

Vincent v. Lake Erie Transport

AFFIRMATIVE DEFENSES TO TRESPASS - "boat damages dock" 1. D docks boat at P's dock during storm; D's boat damages P's dock; P sues to recover damages to dock. D liable for damages. 2. If D, while privileged to trespass, causes damage to P's property, D is still liable for the damage incurred. 3. Policy = apply single owner test - if 1 owner owned both boat and dock, owner would rather incur damage to the dock to save the more expensive boat but would still pay to fix the dock.

Ploof v. Putnam

AFFIRMATIVE DEFENSES TO TRESPASS - "boat ties up" 1. P attempts to dock ship at D's dock because of bad storm; D cuts ship free; ship crashes 2. D liable to P because the necessity of self-preservation will justify entries upon land and inferences with personal property that would otherwise have been trespass. 3. D doesn't have a duty to take affirmative steps, but has a duty to note actively interfere with privilege to enter land. IE - can't close gate as you see girl running from chasing dogs try to escape onto your land 4. Policy = life outweighs trespass. "Doctrine of necessity"

Rossi v. DelDuca

AFFIRMATIVE DEFENSES TO TRESPASS - "girl runs into yard" 1. P runs into D's yard to escape a dog. While in D's yard, P is bitten by D's dog. P sues D to recover damages; D argues no liability because P was trespassing. P wins because trespass was permitted due to danger from first dog. 2. D is not liable for trespass if D must enter P's land to escape grave and immediate harm. Also can allow the D to sue to recover for battery if battery is sustained on P's land while D is privileged to trespass. 3. Policy = self-protection of life outweighs P's right not to endure trespass.

Texas Midland Ry. Co. v. Geraldon

AFFIRMATIVE DEFENSES TO TRESPASS - "sick wife at train station" 1. P and P's wife had to wait for train until morning; forced out into rain; P's wife sick; P sued to recover for damages. 2. Court said under those circumstances, it was not lawful to force her out of the station into the rain.

Summers v. Tice

ALTERNATIVE LIABILITY CASE - "Two Ds shoot P" 1. P is hunting with D1 and D2; P caught in crossfire between D1 and D2 as they both shoot at a bird 2. P sues both Ds even though shot by only one D (can't tell which D shot P) 3. Ds jointly liable because burden of proof to show which D shot P rests with Ds; if Ds can't determine which among them is liable then they are both equally liable. 4. If both Ds are negligent then P can sue both; even though only one was responsible "but-for" cause 5. Normally, P bears burden to get over 50% - but both Ds are 50% likely to be responsible, so ct shifts burden to Ds to prove which D shot P.

Kingston v. Chicago

ALTERNATIVE LIABILITY CASE - "fire burns lumber yard" 1. D's negligence starts fire 1; unknown but human cause of fire 2 2. Fires merge in front of P's lumber yard, burn P's lumber yard; both fires would have burned P's property on their own 3. Policy = D liable even though the other fire also would have burned P's property because no liability would lead to finger pointing - pocket of immunity 4. There is no requirement that the defendant's act be the sole 'but for' cause of the injury, only that it be a 'but for' cause 5. Different from Summers bc we don't have all Ds - this would be more like Summers if both Ds had shot P

Litzman v. Humboldt County

ALTERNATIVE LIABILITY CASE - "flare blows up kid" 1. Kid finds flare on ground at fair, lights match to it, it blows up 2. Two possible companies could have brought the firework, but only one company acted negligently in leaving behind the firework 3. Courts held both liable BUT 4. Most courts would find that the P had the burden of proof to name the correct D because only one was negligent - P should have had the burden (this ct didn't get it right) 5. If only one of two possible defendants was negligent; then it's P's burden to figure out who to sue

R3d § 29 Limitations on Liability for Tortious Conduct

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

Respondeat Superior

Ask: Is the worker an employee or an independent contractor? If independent contractor then Respondeat superior cannot be applied UNLESS work in non-delegable If employee, then Ask: Was tortious act within the scope of work/foreseeable/benefitted the master?

Figueiredo-Torres v. Nickel

OUTRAGE CASE - "therapist sleeping with pt's wife" 1. D is P's therapist; D is sleeping with P's wife; D tells P that P is useless and not a man and that P's wife deserves better. D liable to P for outrage; D was in a position of authority over P 2. If D has special knowledge of P's emotional state and/or holds a position of trust that is then abused, D can be liable.

Alexander v. Town of New Castle

INTERVENING CAUSE CASE - "guy gets tossed into pit" 1. D city has big pit in the middle of the street. P is trying to arrest guy; guy tosses P into pit, and P sues city for negligence in not filling in pit. 2. D not liable because although D negligent, its not really foreseeable that someone would intentionally throw P into the pit to escape arrest; foreseeable intervening act by a third party would be someone accidentally falling into pit.

Herskovits v. Group Health Cooperative

CAUSE IN FACT CASE - "loss of chance" 1. P goes to D for checkup. D says he's fine. P gets second opinion several months later and finds out he has cancer. 2. P finds out that if D hadn't misdiagnosed, he would have had a 39% chance of survival but because D misdiagnosed, he now has a 25% chance of survival 3. Court finds that P can't recover on whether D likely caused P's death because P had a 61% chance of death and D only increased to 75% chance of death. For D to be liable under this cause of action, he would have had to more than double P's chance of survival. 4. BUT court finds that D is liable for reducing P's chance of survival. 5. Reoccurring miss - to find no liability would create a pocket of immunity for docs who reduce patients likelihood of success through negligence.

Wiseman v. Schaffer

CONVERSION CASE - "tows the wrong truck" 1. D tow-truck owner, tows truck after rec'g telephone request from imposter; P (owner of the truck) sues D 2. D liable because in better position to prevent this from happening - could verify phone requests - rule gives incentive to prevent these types of mistakes 3. Mistake of fact does not excuse conversion.

Wallace v. Rosen

BATTERY CASE - "crowded world" 1. D teacher places her hand on P's back to move P out of way during fire drill. 2. P eats shit down a flight of stairs, sues D for battery; D not liable 3. D is not liable for touching that occurs in the normal course of life and is necessary for every day interactions. 4. Policy = some touching inevitable, society wouldn't function if all touching was a battery. 5. Context matters here! Relationship between parties (friend vs. stranger), if it wasn't a fire drill, if she had used more force all might change how the case came out.

Keel v. Hamline

BATTERY CASE - "eraser throwing kids" - COURT GOT IT WRONG 1. D has intent to strike A with eraser but accidentally strikes B instead. 2. D's intent transfers from A to B making D liable to B.

Vosburg v. Putney

BATTERY CASE - "kid kicks eggshell plaintiff" 1. D kicks P in classroom after class started 2. P suffered extensive unforeseeable injuries as a result 3. D liable for all damages resulting from the kick even though the extreme harm that P suffered was not foreseeable 4. Kids were in classroom & teach had called order, which was the added element of wrongfulness. 5. Policy = some party must bear the cost, should be liable D

White v. Idaho

BATTERY CASE - "piano fingers on back" 1. D touched P on back, led to unforeseeable harm 2. Even if D didn't know of P's fragility, D should have known that a reasonable person would have found the touching 'offensive' 3. Touching that is offensive but not necessarily harmful is sufficient for battery 4. Policy = Offensive contact is likely to provoke retaliation so law provides a remedy instead

Manning v. Grimsley

BATTERY CASE - "pitcher throws at heckler" 1. Pitcher being heckled, throws baseball in general direction of hecklers to scare them (assault) but misses and hits third party. 2. D liable to third party P for battery 3. If D intends to commit assault against A but mistakenly hits B, D is liable to B and assault becomes battery. Intent to commit an intentional tort is enough to support liability for battery.

Leichtman v. WLW Jacor Communications

BATTERY CASE - "radio host blows smoke at anti-smoking advocate" 1. P, antismoking advocate, on radio show, and D radio host blows smoke into P's face 2. Ct said smoke was "particulate matter" capable of making physical contact and offending a reasonable sense of personal dignity 3. If D intentionally directed smoke toward P, he could be held liable for battery. 4. Can commit battery without making direct contact - pulling chair hypo - intent is satisfied when D is substantially certain her acts will cause contact to occur.

Madden v. D.C. Transit System, Inc.

BATTERY CASE - "bus fumes" 1. P on sidewalk and breathes in bus fumes from D's busses 2. Contact not necessarily wrongful; It's accepted that if you are downtown, you will occasionally breathe in bus fumes.

Laidlaw v. Sage

BATTERY CASE - "crazy bomb guy in office" 1. Crazy Bomb Guy walks into office, demanding $, or he'll suicide bomb everybody 2. D maneuvers himself behind his clerk P; CBG sets off bomb, clerk is badly injured, D is fine 3. Clerk P sues D. D not liable 4. If D's life is in grave and immediate danger, he has right to take steps to protect himself (including substituting someone else into that danger). *Distinguish from Polmatier - no immediate danger in PvR 5. Policy = self-preservation is the basic instinct, law can't operate in contravention of that (can't control involuntary movements - sleepwalking, seizures, reflexes)

Polmatier v. Russ

BATTERY CASE - "crazy guy kills dad" 1. D is nuts, thinks dad is a spy who is planning to kill him; kills dad on this insane rationale. 2. D is liable to P (P's family) even though he is crazy 3. Insanity is not a defense; D still has intent, albeit irrational or mistaken intent - Rationality not requirement for action to be voluntary, an insane person can still intend to make contact 4. Policy = holding him responsible for actions provides incentive for caretakers to watch over crazy people

Hand Formula

Burden to take reasonable care VS Liability (cost) of harm X Probability of harm occurring Questions to Ask: • What's the cost of burden compared to the likelihood that burden will reduce probability? • Is the potential liability high enough to justify cost of burden? • Goals is to get the most efficient amount of investment in safety

Pemberton v. Bethlehem Steel

OUTRAGE CASE - "union rep" 1. D steel company hires a private eye to follow P union rep around. D finds P having an affair, gives evidence to P's wife; P's wife divorces P. D not liable to P 2. D may not be liable if P is 'tough' person and not necessarily susceptible to outrageous conduct. 3. If outrageous info is truthful, not likely to be liable. 4. Policy = protect the ability to be tough/mean negotiators.

Rodi Yachts v. National Marine

CUSTOM CASE - "barge; market forces" 1. Barge breaks free of mooring crashes into P; dock owner and barge owner both D at risk of negligence 2. When parties are engaged in contractual economic behavior, the market arrives at an efficient set of customs. 3. If contractual relationship = custom probably not negligent (idea that they negotiate the terms of the K) 4. Between contractual parties court should determine negligence based on parties' deviation from custom.

TJ Hooper

CUSTOM CASE - "no radio on barge" 1. D's barge running without radio. Bad storm blows up and D loses cargo it is towing. 2. Cargo owner P sues claiming D negligent because no radio; D defends saying no radio is customary practice in industry. Court finds D negligent because directly foreseeable that a radio would have prevented harm. 3. Policy = adherence to custom does not bar a negligence claim - we don't let industries define the standard of care because that standard could be negligent.

MacDougall v. Penn Power

CUSTOM CASE - "plumber electrocuted by low hanging pwr box" 1. P electrocuted by D's low hanging transformer box that was unmarked 2. Industry custom to leave boxes unmarked 3. Court finds D liable bc custom is obviously and foreseeably negligent (PL is high) 4. Some customs are inherently negligent. 5. Distinguish from Ellis: Relationship of the parties - contractual relationship ("market mechanism") in Ellis - could negotiate terms of employment

Ellis v. Louisville RR

CUSTOM CASE - "railroad worker, dust, disease" 1. RR worker P contracts lung disease after working around sand for 25 years. Sues RR D claiming negligence in not supply mask. 2. D not liable because industry custom is not to supply masks and it wasn't foreseeable at the time that this custom led to harm (PL was not high - based on knowledge at the time) 3. The degree to which a custom is negligent depends on the extent to which the harm is foreseeable. Knowledge "ex ante" (based on forecasts rather than actual results) does not lead a reasonable person to believe the dust was probable to cause harm.

New York Central v. Grimstad

CAUSE IN FACT CASE - "bargee drowns" 1. Bargee falls overboard, wife runs to get rope to throw to bargee. When she makes it back 30 seconds later, he has drowned. 2. Wife sues barge owner for negligence for lack of life rings. 3. Court says P presented no evidence that life rings would have been sufficient to save bargee; D not liable for negligence on this claim. 4. Note: P could have sued for no net around boat - would have won on causation but lost on breach of duty (burden too high)

Dillon v. Twin State Gas & Electric Co.

CAUSE IN FACT CASE - "boy loses balance on beams & electrocuted" 1. 14 YO boy sitting on bridge's beams, loses balance, grabs one of D's electric wires to save himself from falling, was electrocuted and thrown back onto the girder. 2. Dis liable bc wires caused death - but we don't know the extent of liability. 3. Not a loss of chance case bc we know exactly what the cause of death was - but will likely reduce damages to reflect the P's chance of survival in the absence of negligence. 4. General rule is 50% standard (P's burden to show more likely than not that D's neg caused the harm) BUT can produce bad results so cts may reduce R.I.L. standard - use LOC to prevent pocket of immunity when P's are harmed by D's negligence but can't prove it

Haft v. Lone Palm Hotel

CAUSE IN FACT CASE - "father and son drown" 1. Father and son drown at pool where no lifeguard is on duty; statute orders lifeguard or sign saying no LG 2. Statute establishes standard of care, which the hotel breached, but the hotel can still show that the breach is not what caused the harm 3. Court finds that the actual purpose of the statute is to have a lifeguard on duty; posting a sign is a far inferior substitute 4. Case falls within reoccurring miss problem - a finding of no liability would result in a pocket of immunity for defendants in similar situations; court doesn't want this, finds the lack of a LG as the cause of the drowning (even though a LG may not actually have been able to save) 5. The intent of the statute is to provide a LG, and ct is concerned that if you gut this requirement, you gut the legislative intent. 6. Burden shifted to D - we want to prevent reoccurring miss in any given case it would be hard for P to establish that in that particular case the sign would have made a difference. Scenario repeats 100x and in some cases, it would have made a difference but difficult for P to prove that it would have made a difference in HIS case. Concern is D's neg is causing harm but you'll never have a P who can prove that bc of pocket of immunity for D hotel-owners

Element 3 of a Negligence Claim

Cause-in-Fact: "but for" D's breach of duty of exercise reasonable care, P would not have been harmed • The P has burden to show that D's negligence was the "cause in fact" of the P's injuries - P's injuries would not have occurred absent D's negligent conduct • 51% rule - P must only show evidence sufficient to establish D's negligence was 51% possible for cause-in-fact

Stacy v. Knickerbocker Ice Co

CAUSE IN FACT CASE - "rented horses fall through ice" 1. D rents horses from P for work on iced over lake; horses fall through ice 2. D not liable because P's allegations (inadequate fence under statute, lack of knowledge of weak spot in ice, lack of ropes to pull horses out) either fell outside the scope of the harm intended to be prevented by statute (inadequate fence) or were not 'but-for' cause (but for lack of ropes and knowledge of weak spot in ice, horses still would have drowned). 3. Probably not a reoccurring miss problem (but if it wasn't a horse, case might be different.) It doesn't appear that if they had followed the statute the accident would have been prevented. ISSUE OF CAUSATION supersedes - if the breaches are not the reason the injuries were caused. 4. Neg per se won't work here bc violation of the statue requiring fence wouldn't stop 2 horses - Negligence per se can establish a breach in the duty of care but not causation.

Gardner v. National Bulk Carriers, Inc.

CAUSE IN FACT CASE - "ship doesn't go back for seaman" 1. Sailor goes overboard, ship crew finally notices he's gone 6 hrs later. Ship continues on, doesn't go back to look for him. 2. Court finds ship captain/owner liable for negligence in that their refusal to turn around and look for him presented neither a high burden (would only have taken half a day at most) and he may have survived for many hours after going overboard, so court seems to think ship not turning around to look was at least 51% cause of sailor's death. 3. Policy = if no finding of liability, then boat owners will have no incentive to ever look "reoccurring miss;" Ct isn't creating Strict Liability but if ct doesn't impose that duty on Capt. then Capt. would never be at fault - this is an incentive to keep tabs on crew. 4. Ct is relaxing the traditional causation standard to prevent a pocket of immunity

Brzoska v. Olson

CONSENT TO BATTERY - "HIV dentist" 1. D is a dentist with HIV that he doesn't disclose to his patients; Ps sue D that their consent to his touching was invalid because they did not know he had HIV 2. D not liable because reasonable P would not have feared transmission of HIV because no way it could have been transmitted 3. Medical battery consists of touching of a substantially different nature than that which was consented to; reasonableness standard - what would a reasonable person consent to given the context? 4. Policy = don't want to force docs to disclose personal info bc slippery slope.

Neal v. Neal

CONSENT TO BATTERY - "cheating husband" 1. Wife finds husband cheating; sues claiming she'd never have consented to sex if she'd know he was cheating - he fraudulently obtained her consent by lying and saying he wasn't cheating. 2. Consent that is induced fraudulently is invalid especially if it causes P harm.

Grabowski v. Quigley

CONSENT TO BATTERY - "different doctor" 1. P goes to doc D1 for surgery; Doc D1 says he'll do it; surgery is actually performed by doc D2 2. Both D's are liable 3. When a party's consent is explicitly given to A; A cannot transfer intent to B absent the party's approval. (Unless in a hospital setting - consent implied for all docs)

Hollerud v. Malamis

CONSENT TO BATTERY - "drunk arm wrestling" 1. P is drunk and consents to arm wrestling with D; P gets injured and sues D to recover; D liable 2. If D knows that P is incapable (drunk) of rational thought than any consent on P's part is invalid. 3. Being drunk invalidates consent, but not intent - give D a reason to think twice.

Cohen v. Smith

CONSENT TO BATTERY - "male doc touching - idiosyncratic objections" 1. P didn't want D to allow male doc to touch her during surgery; D's male doc did touch her 2. Court held that P had withheld consent and that D committed a battery 3. Court will protect idiosyncratic beliefs even if it results in an increased likelihood of death.

Werth v. Taylor

CONSENT TO BATTERY - "no blood transfusion" 1. P does not give express consent for a blood transfusion should complications arise before undergoing surgery (Jehova's Witness) 2. Complications arise during surgery and doc D gives blood transfusion; P sues; D not liable 3. Consent is implied where an emergency procedure is necessary to save a life and no opportunity to obtain consent from unconscious party. Prior refusal of consent made in non-life threatening context was not contemporaneous or informed. Also - P hedged on consent and was ambiguous 4. Policy = gives docs legal cover to save lives - IMPLIED CONSENT

Mohr v. Williams

CONSENT TO BATTERY - "operation on the wrong ear" 1. P goes to doc D to get ear surgery on right ear; while under, doc D discovers problem with left ear and operates 2. Although surgery was successful and skillfully performed, D liable to P for battery; D operated outside scope of P's consent 3. A party circumscribes the limit of their consent; and the scope of the consent cannot be expanded by D unless in circumstances of grave and immediate danger (Werth). Without immediate danger, he should have gotten consent.

Hart v. Geysel

CONSENT TO BATTERY - "prize fighting" 1. 2 men engaged in an illegal prize fight; one dies from injuries rec'd during fight. 2. D not liable because P doesn't have right to recover damages when he expressly consented to and engaged in the fighting as a matter of sport.

McNeil v. Mullin

CONSENT TO BATTERY - "street fights" 1. P and D get into buggy road rage fight; P sues D to recover injuries from fights; D liable to P 2. D's consent to an unlawful act does not bar recovery for battery. 3. Policy = knowing you could be sued for battery if you fight may act as a deterrent.

Russell-Vaughn Ford, Inc. v. Rouse

CONVERSION CASE - "car dealers keep keys" 1. D car dealer keeps P's car keys against P's will to 'see P cry a little' 2. D liable for conversion; didn't matter that P could have called wife for extra set of keys 3. D can be liable simply for maliciously withholding or preventing use of P's chattel. P is not under any obligation to exercise alternate means to recover the chattel. 4. D doesn't have to take chattel for own use - just exercise dominion.

Palmer v. Mayo

CONVERSION CASE - "horse crashed by 3rd party" 1. D rents horse from P; D lends horse to friend who then gets drunk and crashes it. D liable to P 2. D can be liable for exceeding the scope of P's authorization to use the chattel (outside the scope of consent) 3. Mistake of fact of ownership will not excuse conversion.

Spooner v. Manchester

CONVERSION CASE - "horse gets lame" 1. D gets lost using rented horse; D attempts to return to P with rented horse but horse gets lame; D not liable to P 2. D may not be liable if unforeseen harm befalls the chattel while D is using it, and attempting to comply with P's terms of use. 3. At all times in this case, D was recognizing owner right to control.

§ 228 Conduct by Servant with Dual Purpose

Conduct may be within the scope of employment although done in part to serve the purposes of the servant or of a third person

§ 228 Scope of Employment

Conduct of the employee is within the scope of employment if, but only if 1. It is of the kind he is employed to perform 2. It occurs substantially within time and space authorized by the employment 3. The purpose of the activity is at least in part to serve the master* (carries most weight) 4. If force is used against another, the use of force against another is not unexpected by the master

The Roman Prince

INTERVENING CAUSE CASE - "chick doesn't get off the boat" 1. Chick P on a boat that gets hit by D's boat. P's boat starts to slowly sink but despite this, P does not disembark. Finally, 30 minutes later P decides to get off. Trips as she's doing so and is harmed. 2. Court hold's D not liable because P's act was not reflexive. It was taken later and contemplative. 3. Not analogous to squib case - there was no need to evacuate quickly

Thompson v. White

INTERVENING CAUSE CASE - "clown case" 1. P driving car in front of gas station D that has hired clowns to perform. P struck from behind by second driver. P sues both driver and gas station. 2. Court rules that foreseeability is a question for the jury. Was it foreseeable that clowns would distract drivers and lead to accident?

Johnson v. Kosmos Cement Co

INTERVENING CAUSE CASE - "lightning strike" 1. D has ship full of gas and order P to go use welding torch; as P is doing this lightning strikes the ship causing it to blow up. D liable because risk of explosion regardless of source of ignition. 2. Framing the issue: Why was it negligent to clean out the hold? If it's because workers are using blowtorches than no liability; but if its because the ship is going to blow up then liability. 3. D may try and analogize to Doughty in that the actual force (lightning) was different than the foreseeable force (blowtorch) even though resulting harm was the same (ship blowing up).

Invitees - Business visitors, or public if premises are open to public *Mailmen, ppl who routinely make visits

Duty of reasonable care with respect to everything: Duty to inspect the property and warn visitors of hazards Duty to exercise reasonable care for all activities

Licensees - Social guests; others present with owner's consent *Prof. rescuers - most likely

Duty to warn of dangerous hidden conditions of which owner is aware Duty of ordinary care in undertaking activities No duty to inspect premises to make them safe

Limitation of Duty: An Alternative Approach

Duty: Q of law for the court - if good policy reasons to not impose liability, then duty may prevent claim from moving forward. Proximate cause: Q of fact for the jury

Van Tuyn v. Zurich American Insurance

EXPRESS ASSUMPTION OF RISK CASE - "mechanical bull" 1. Chick gets tossed off mechanical bull in bar. Told operator beforehand to take it easy. Signed a release form. 2. Exculpatory clause never explicitly stated that it absolved the bar of negligence in the operation of the bull; and because these clauses are construed strictly against the drafter. 3. Waiver was valid and enforceable, just too narrow.

§ 496D Knowledge and Appreciation of Risk - SUBJECTIVE STANDARD

Except where he expressly so agrees, a plaintiff does not assume a risk of harm arising from the defendant's conduct unless he then knows of the existence of the risk and appreciates its unreasonable character. Does NOT matter that objectively a reasonable person should have foreseen harm. *P has to know and understand the risk - this is not "should know," P has to have actual constructive knowledge - but this can be satisfied if the risk is obvious.

Clark v. DuPont

INTERVENING CAUSE CASE - "explosive years later" 1. D company leaves explosive on farm after doing work. Guy finds explosive and puts it in cemetery thinking it's safer there. Two kids find it years later and blow up. 2. Court says that D liable because intervening force (dude moving the explosive) didn't break the chain of causality; PL well within the scope of the foreseeable PL (foreseeable and actual result was exploding glycerine - just because it occurred 2 years later doesn't matter) 3. Time factor irrelevant - tractor trailer hypo: D backs up down highway causing traffic snarl and eventually car accident - distance between truck backing up and accident irrelevant 4. Glycerine's inherent danger was always there - his negligence never "came to rest"

Res Ipsa Loquitor

From the happening of an accident and the defendant's relationship to it, it can be presumed that: 1) The harm-causing event was probably the result of negligence, and 2) The defendant was probably the culpable party. Ask: "What's the optimal number of X occurring?" (Where X is bricks falling, planes crashing, etc.) Answer may depend on severity of resulting harm from X occurring.

Trespassers - D takes shortcut across P's property.

Generally no duty If LL sees trespasser or knows (or should know) trespassers are likely: Duty of ordinary care in carrying out activities Maybe duty to warn of hazardous conditions In some states, just a general duty to avoid inflicting injury by 'willful or wanton' conduct

Dunn v. Teti

IMPAIRMENTS CASE - "6 YO hits another" 1. 6 year old P hits 6 year old D in the face. Trial court ruled for D saying he was too young to be capable of negligence. 2. Rule of 7s: Kids under 7 are, as a matter of law, conclusively incapable of negligence; kids between 7 and 14 are presumed incapable of negligence, but P can rebut; kids over 14 are held to the standard of a reasonable kid their age. 3. NOTE: most courts don't employ these standards - most courts just compare kids to similarly aged kids

Roberts v. Ring

IMPAIRMENTS CASE - "77 YO hits kids" 1. 77 year old D runs over 7 year old kid. Kid held to standard of someone same age. 77 YO held to standard of an average adult, not a 77 YO. 2. No differential in standard of reasonable care for the elderly, they must know they're old and take steps to compensate - ie shouldn't drive.

Davis v. Feinstein

IMPAIRMENTS CASE - "blind guy took reasonable care" 1. Blind guy P using cane while walking down street; falls into D's open cellar 2. P not contributorily negligent because he was using a cane and thus exercising reasonable care. 3. No contributory negligence for actors who take reasonable care to accommodate physical impairment.

Purtle v. Shelton

IMPAIRMENTS CASE - "bubba shoots buddy" 1. P accidentally shoots D while out hunting. Both are children. Trial court assigns equal share of negligence to both P and D. 2. On appeal, P claims that D should have been held to an adult standard of care, not standard of care of that of a similar age and intelligence. Appellate court disregards and affirms trial courts ruling. 3. Children, unless undertaking an activity normally engaged in by adults, will not be held to an adult standard but rather the standard of a reasonable person their age. *Ct doesn't consider hunting to be an activity engaged in by adults only.

Kerr v. Connecticut Co.

IMPAIRMENTS CASE - "reasonably deaf dude" 1. P is deaf and walking dangerously close with back to train tracks; P can't see or hear train D coming 2. D blows whistle but strikes P who is hurt; P sues for damages; but court finds no negligence for D and all negligence for P 3. If an actor is aware of his own physical impairment then this alters his standard of care.

Village of Carterville v. Cook

INTERVENING CAUSE CASE - "6 foot high sidewalk" 1. D city has sidewalk that is 6 feet off the ground without a railing; P gets jostled by someone and thrown off sidewalk 2. D negligent because intervening party's conduct and resulting PL was entirely foreseeable within D's negligent act (having the sidewalk 6 feet off the ground with no railing) *Tall building analogy: negligent to not build small railing to prevent someone from stumbling over, but NOT negligent to not build huge brick wall to prevent someone from throwing you over.

Bell v. Campbell

INTERVENING CAUSE CASE - "car crash then drunk driver" 1. Truck driver D1 and car driver D2 equally negligent for car accident; people stop to help; drunk driver crashes into people killing two of them. 2. Court rules that D's negligence came to rest after their initial car crash and thus were not liable for harm that drunk driver caused, but could have gone the other way. 3. Fact that 2 years passed or 300 yards away - NOT sufficient to break causal chain.

Brauer v. NY Central RR

INTERVENING CAUSE CASE - "cargo stolen after train crash" 1. D's train collided with P's wagon; incapacitating guard that had been assigned to escort P's cargo on the wagon. Some thieves take advantage of guard's incapacity and steal P's cargo. 2. Foreseeable (within PL) that the train crash incapacitating the guard would lead to a theft of P's cargo; therefore D liable; presence of guard makes theft more foreseeable 3. D's original act of negligence (train crash) led to P's condition where intervening act was likely. 4. Factor: does it present a unique opportunity to commit a tort? Context matters to determine foreseeability

Watson v. Kentucky Bridge

INTERVENING CAUSE CASE - "negligent or intentional ignition?" 1. D's train negligently derails and spills oil all over town; Idiot ignites the oil causing resulting fire/explosion 2. Foreseeable PL is fire/explosion, which happens. BUT, conduct by an intervening party means that... liability turns on whether he set the fire intentionally. 3. Far less foreseeable that someone would set the fire intentionally; if that is the case, then D not liable. If he set the fire negligently/accidentally then D liable bc that course of action is foreseeable. 4. Impose liability where negligence causes harm and where the defendant should have foreseen that his conduct led to higher chance of harm occurring. 5. It matters how the harm came to occur - was it foreseeable? How the fire started is Q for the jury

Farmilant v. Singapore Air

INTERVENING CAUSE CASE - "no flight; food poisoning" 1. P tries to book a flight with D but has to take train instead; while taking train gets food poisoning 2. Claims that D is negligent in not providing him a seat on plane and that that is the proximate cause of his food poisoning 3. First, it is crazy unlikely that D was negligent in not providing P a plane seat. Second, even if D was negligent this case is on point with Price in that PL is way outside the foreseeable PL.

Scott v. Shepard

INTERVENING CAUSE CASE - "the squib case" 1. ******* D tosses firecracker (squib) into crowd of people. Several people reflexively throw/kick the squib away from them until it hits P when the fuse runs out and explodes. 2. The intervening acts were reflexive and not contemplative and thus a continuation of the original act making D's conduct liable despite third parties intervening. 3. Acts by intervening parties that are reflexive and in response to the original negligent act are considered part of the causal chain establishing the original actor's liability.

Richardson v. Ham

INTERVENING CAUSE CASE - "unlocked bulldozer" 1. D leaves bulldozer unlocked; guys climb in, take it for a joy ride and drive it over a cliff crashing it into houses below. 2. D liable because PL (property destruction) well within the foreseeable harm - bulldozer aroused curiosity and attracted spectators - foreseeable risk of amateur driving bull dozer is property damage 3. Lamkin ex: leaving your phone somewhere presents the opportunity for someone to take it, not to use it to bash in someone's head.

§ 448 Intentionally Tortious Acts Done Under Opportunity Afforded by Actor's Negligence

If A commits negligence that creates an opportunity for B to commit an intentional tort against C. B's intentional tort is a superseding cause of C's injury that absolves liability unless: 1. A should have realized the likelihood that his conduct might create that situation, and 2. That a person like B might take the opportunity to commit a tort or crime

§ 322 Duty to Aid Another Harmed by Actor's Conduct

If the actor knows or has reason to know that by his conduct, whether tortious or innocent, he has caused such bodily harm to another as to make him helpless and in danger of further harm, the actor is under a duty to exercise reasonable care to prevent such further harm.

§ 449 Tortious Acts Which Probably Makes Negligent

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

§457 Additional Harm Resulting from Efforts to Mitigate

If the negligent actor is liable for another's bodily injury, he is also subject to liability for any additional bodily harm resulting from normal efforts of third persons in rendering aid which the other's injury reasonably requires, irrespective of whether such acts are done in a proper or a negligent manner.

§ 295 Custom

In determining whether conduct is negligent, the customs of the community, or of others under like circumstances are factors to be taken into account, but are not controlling where a reasonable man would not follow them. • Comment B - if actor is following custom there is at least a possible inference that he is conforming to the community standard of reasonable conduct. • Comment C - some customs may be inherently negligent. Customs that may be reasonable under ordinary circumstances might not be reasonable in light of specific facts. A rule that following customs always results in no negligence wouldn't provide incentive to improve safety.

Anderson v. Erie Railroad

LIMITATION OF DUTY CASE - "clerical train ticket" 1. P buys a discounted railroad ticket in exchange for waiving right to sue for negligence 2. Waiver is bargained for; the parties had equal bargaining power 3. The waiver is pretty rare so it's not inducing the railroad to be negligent; priest still covered by the reasonable care that the railroad has to exercise with respect to the other passengers. 4. Court enforces waiver - Voluntariness of exchange is critical! 5. Default rule for common carrier is to not let them force passengers to sign exculpatory clause bc not a lot of other choices so customer and carrier not on the same playing field and the passenger is putting themselves in control of the common carrier - but here the railroad has the option to not offer the discounted ticket and the passenger could have paid more

Wagner v. International RR

LIMITATION OF DUTY CASE - "danger invites rescue" 1. D negligently leaves train door open. P's cousin thrown out of door as train rounds a curve 2. P stops train and gets out to search for him; P falls down same hill as cousin and is injured 3. D liable for P's injuries sustained while he was trying to rescue his cousin 4. D's duty extends to those engaged in a rescue attempt caused by D's negligence because it is reasonable foreseeable that someone would rescue him. 5. Note: court finds that D can be liable - not that D is liable as a matter of law.

Widlowski v. Durkee Foods

LIMITATION OF DUTY CASE - "guy bites off finger" 1. Guy is instructed to clean tank with nasty gases; D company doesn't properly equip guy, he gets delirious, has to go to hospital, on the way, while delirious, he bites off nurses finger 2. TC dismisses, AC reverses for P, SC rules for D saying: if the court didn't limit liability, D's duty would have extended to the world at large and whomever guy came into contact with. 3. Court notes that no duty to guard against the 'tragically bizarre' and duty must stop short of the 'freakish and fantastic' 4. SC has a crappy opinion - it would have been easy to approach this as a proximate cause case - it is unlikely that a reasonable person would foresee this kind of harm.

Tunkl v. Univ. of CA

LIMITATION OF DUTY CASE - "medical release" 1. Tunkl goes to nonprofit UCLA medical center to get treatment but has to sign a release that exculpates the hospital for negligence. 2. Court holds that the exculpatory clause is invalid because Tunkl's bargaining power was significantly less than the hospital because the hospital was providing a critical service that Tunkl couldn't necessarily get elsewhere - invalidated based on public policy

Edwards v. Honeywell

LIMITATION OF DUTY CASE - "missed call; house fire" 1. House catches on fire; D alarm company places three incorrect calls before getting the right fire dept 2. Firefighters finally arrive and one dies after falling through floor 3. P is wife of dead firefighter; she sues claiming that if D had called right fire dept earlier, the floor wouldn't have weakened and the husband wouldn't have fallen through and died 4. Posner makes market argument against liability for D. Says that company probably had considered this type of risk and had taken economically appropriate steps to prevent it. If court allows this question of proximate cause to go to a jury, question of liability will be unsettled and companies will not know how much in way of resources to invest in trying to prevent this type of harm. 5. Finding of liability against company for unforeseeable risk will not likely lead to greater investment in risk prevention.

Shorter v. Drury

LIMITATION OF DUTY CASE - "no blood transfusion waiver" 1. D is a doc, negligently performs operation that causes P to need a blood transfusion or she'll die. 2. P refuses transfusion and signs waiver releasing doc from harm resulting from P's refusal of the transfusion. 3. Blood transfusion waiver enforceable but P's family can still sue doc D for negligently performing operation in the first place. 4. Ct didn't invalidate waiver for public policy reasons - but narrowed the language and the waiver didn't include negligence. 5. Note: P wasn't negligent in refusing blood, just assumed increased risk. 6. Not a loss of chance case - because P would not have died without Dr's negligence

Palsgraf v. Long Island RR

LIMITATION OF DUTY CASE - "reasonably perceived risk defines duty" - NOT THE DOMINANT APPROACH 1. D negligently helps passenger board train, causes accident. Has no knowledge that passenger is carrying fireworks which go off causing scales on the other side of the platform to fall and hit P. D not liable because "no duty of care to P because P outside the zone of foreseeable danger" 2. Judge Cardozo says negligence is relational - D didn't breach duty that he owed to that P (bc reasonable person wouldn't think this kind of negligence would cause this kind of harm) 3. Duty is a question of law and proximate cause is more often a question of fact. 4. Greater opportunity to limit liability if judgment rests with judge as opposed to jury.

Manning v. Brannon

LIMITATION OF DUTY CASE - "skydiving" 1. P signs skydiving waiver. Sits through extensive briefing on the waiver. There's no doubt that P was aware of what he was signing, there's no doubt the waiver covered the type of harm P suffered due to D's negligence. 2. Question is to whether the waiver was enforceable; Court focuses on the parties bargaining power - D took great caution in making cautions known, and it was clear the P knew and understood the risks. 3. P could have gone to other skydiving companies or could have chosen not to skydive altogether

§339 Conditions Dangerous to Trespassing Children

Landlord subject to liability for harm to children trespassing caused by an artificial condition of the property if: a) The landlord knows that kids are likely to trespass where the dangerous condition exists b) The landlord knows the condition could be super dangerous to kids c) The kids, because they're little shithead kids, don't realize the condition is really dangerous d) The utility to the landlord of maintaining the danger and/or the burden of eliminating it is less than the risk of harm to the kids e) The landlord fails to exercise reasonable care to eliminate the danger or otherwise protect the kids

Cook v. Irion

MALPRACTICE CASE - "don't trip & sue your lawyer" 1. P trips on a cable on sidewalk and hires D lawyer. Lawyer could have sued: 1) shopping ctr, 2) organization of tenants, and 3) tv station that owned the cable. But only sued the shopping center. 2. Lawyer loses the case, so P sues lawyer, claiming he should have sued the other possible Ds as well. 3. TC gave directed verdict to D lawyer; AC affirmed, applying a strict locality rule - what was the standard of a lawyer in El Paso. Note: most courts use a statewide standard.

Johnson v. Willis Hospital

MEDICAL MALPRACTICE CASE - "hospital facilities rule" 1. Crazy P jumps out of D's hospital window and dies; family sues hospital D claiming negligent services/facilities 2. Court rules for hospital because it was small/local; not reasonable to expect small town hospital to have same services/facilities as big city 3. Liability for negligence in regard to hospital facilities is subject to a stricter locality rule than doc's standard of care 4. Policy considerations = if we had a national standard with facilities, hospitals in rural areas would shut down, leaving people without access to care. Info may have become cheap, but MRIs are not.

Gambill v. Stroud

MEDICAL MALPRACTICE CASE - "modified locality rule" 1. While resources/info are more readily available than when original locality rule was in effect, there is still a discrepancy in the cases the doc takes on a regular basis in a small town vs a large city 2. Can't expect a doc with limited exposure to treat dz x the same skill as doc with great exposure to dz X 3. Custom/standard of care is based on what the standard is in the local geographic, social, economic environment.

Brune v. Belinkoff

MEDICAL MALPRACTICE CASE - "no locality rule" 1. D is small town doc and gives patient P 8 mgs of drug, which is custom in D's small town 2. P harmed because of amount of drug, sues claiming that custom in Boston is 5 mgs 3. D wins trial on locality rule defense; P appeals and wins on appeal 4. Docs will be held to a more national standard; not acceptable defense to claim practice is x in locality 5. Old standard - strict locality (bc at that time, info/education/transportation in country town not that of a big city) New rule - nationwide standard (BUT circumstances like facilities available to doc are considered. 6. Policy for new rule = prevents docs from using locality as excuse for poor health care.

Haskins v. Grybko

OCCUPATION OF LAND CASE - "D unwittingly shoots P" 1. D goes out woodchuck hunting on his property. Shoots P thinking that P is a woodchuck. 2. P sues and loses after D appeals TC decision on the grounds that D was not under an obligation to know that P was trespassing. 3. Note: If D doesn't know trespasser was there - no duty to use reasonable care - just a duty to refrain from willful/reckless conduct. §336 4. Landowner has privilege to conduct activities on his own land. 5. P has burden to show that he was trespassing as part of prima facie case (otherwise just straight neg case)

Williams v. Hays

NEGLIGENCE CASE - "crazy ship captain" 1. D goes nuts while performing duty to captain ship during storm; stays awake for days 2. Ship wrecks anyway, ship owners P, sue D for negligence; D loses at first trial b/c court says insanity not a defense to negligence (think Pulm v Russ - gives crazy ppl incentive to avoid situations & take own limitations into account) 3. D appeals on grounds that D's insanity was brought on by the full performance of his duty as captain; D wins on appeal 4. Court holds that if insanity occurs in the course of taking reasonable care and duty to prevent negligence it's a defense to a negligence claim. 5. Policy for second ruling = what more could be asked of someone?

Vaughan v. Menlove

NEGLIGENCE CASE - "*******, haystack fire" 1. ******* D builds a haystack near neighbor P's property. 2. P warns D of haystack fire danger; D does nothing; haystack goes up in flames, burns down P's cottages. 3. P sues and D claims he can't be liable for negligence because he's an idiot. D liable to P 4. Negligence standard objective; requires D to act as any reasonable/average intelligent person would. Being an idiot isn't an excuse. 5. Policy - Objective standard easier for cts to administer, gives certainty to litigation process, and gives everyone incentive to try not to be an idiot.

Lynch v. Rosenthal

NEGLIGENCE CASE - "mental disability, falls into picker" 1. D knows P is mentally handicapped; D doesn't warn P about walking too close to picker. 2. P falls into picker, is hurt, and sues D for negligence in not warning him; D says P is contributorily negligent for walking too close 3. Court holds D fully liable and P has no contributory negligence 4. If A knows special limitations of B, this alters A's standard of reasonable care in relation to B. 5. Note on contributory negligence - old doctrine that if P is even 1% neg, P can't recover. New rule: cts will reduce Ps recovery to proportion of fault. 6. If D didn't know of P's mental disability, D would not be held liable. Bc he did know, he is held to a higher standard of reasonableness.

Weirs v. Jones County

NEGLIGENCE CASE - "no English, bridge out" 1. Non-English speaking P drives over bridge that has been posted 'unsafe' with signs in English 2. P falls into river, suffers harm, sues county D for neg in not posting more warnings. D not liable to P. 3. If B is aware of own special limitations, it alters B's standard of reasonable care. 4. Compared to Lynch - he is in a better position to take into account his own limitations; relationship between parties different, in lynch, it was his caretaker instructing him.

Fredericks v. Castora

NEGLIGENCE CASE - "truck drivers" 1. P hit by two different truck driver Ds. P sues saying court has to apply higher standard of care because of D's driving experience (20+ years) 2. Ds not liable to P 3. No variation in standard of care for D's experience or training in a non-legal, medical, or science profession. Standard doesn't vary for years of experience.

Martin v. Herzog

NEGLIGENCE PER SE CASE - "no lights on buggy" - P negligent per se 1. P and D collide; P sues D for negligence in swerving over the line, D counterclaims against P for not having lights on buggy. 2. If statute requires something for safety (ie - lights on a buggy/car) than breach of the statute is prima facie evidence of per se negligence. 3. Did lack of lights contribute to accident? Yes. Note: not having lights on buggy only establishes breach of duty element.

Segler v. Steven Brothers

NEGLIGENCE PER SE CASE - "sidewalk poop" 1. Court finds no negligence for store that was supposed to clean the sidewalk when lady slips and falls bc sidewalk not clean 2. Under the statute, D owed a duty to the city, not the general public. 3. Statute created a duty in the D to the city, not to the P - D only liable if P was someone statute was designed to protect.

White v. Levarn

NEGLIGENCE PER SE CASE - "squirrel hunting on a Sunday" 1. P and D went squirrel hunting on a Sunday; D mistook P's hat for a squirrel and shot at it. 2. P sued on theory that hunting on Sunday was forbidden by state law. 3. TC gave judgment to D. SC reversed, holding that hunting on a Sunday is unlawful by statute. The shooting which injured the P was therefore an unlawful act voluntarily done by the D, and he is answerable in an action of trespass for the injury to P. 4. Note: Statute isn't designed to protect people from fellow hunters on Sundays - so was case decided wrongly??

Tingle v. Chicago

NEGLIGENCE PER SE CASE - "train hits cow on Sunday" 1. D's train hits P's cow on Sunday. P sues under no specific theory of negligence but that D was running the train in violation of a statute that prohibits running a train on Sunday. 2. Court finds no negligence because the purpose of the statute was not to protect livestock but to prevent train operations on Sundays. 3. Harm that falls outside the harm intended to be prevented by statute is not subject to neg per se.

Tedla v. Ellman

NEGLIGENCE PER SE CASE - "walking on wrong side of road" - P not negligent 1. Ps walking on wrong side of road as defined by statute - P hurt by D's car 2. D argues that P was contributorily negligent because P was in violation of statute 3. TC and AC rule for P because the statute's purpose was to promote public safety; P's were walking on "wrong" side of road because there was a lot of traffic going the other way and it was much safer. 4. Court's should construe and apply statutes as to their purpose, not blindly follow the law if that will lead to a result inconsistent with the law's purpose. (Strict observance may defeat the purpose of the rule)

Respondeat Superior Important Points

Not every agent is an employee (Might pay brain surgeon to do surgery, but not going to tell Dr. how to do it, I'm not their employer even though I'm paying) Jury will consider these factors (whether an independent contractor or employee is a Q of fact for the jury)

Wright's Calculus

Not negligent to impose risks on others in pursuit of private gain only when: • Plaintiffs are participants in the activity that's generating the risk, or • The activity is socially valuable Even then risks imposed are only reasonable if they are • Not too serious • Necessary/unavoidable • Reduced to the maximum extent reasonably feasible • Significantly outweighed by the desired benefit

Respondeat Superior - "Frolic and detour"

Note: "Frolic and detour" - employee abandons scope of emp. to do his own thing. Ex: Stopping for coffee while doing job - RS can still apply; Stopping to break your dad out of jail too far of a departure - RS doesn't apply. Ask: How closely related is the thing you've been asked to do to the scope of your employment?

Important Point on CUSTOM

Note: CUSTOM defense works best when there is a contractual relationship between parties.

Carter v. Kinney

OCCUPATION OF LAND CASE - "bible study guest slips on ice" 1. P, member of bible study that met at D's house, slipped on ice on driveway and sued D to recover. 2. TC and SC gave judgment to D, holding that the P was not an invitee and therefore, the D had no duty to protect him from unknown dangerous conditions. 3. Court takes different approach from Rowland and emphasizes the benefits of categories (cases may be resolved earlier, promotes settlement)

Rowland v. Christian

OCCUPATION OF LAND CASE - "cut hand on faucet" 1. P, guest in D's leased apartment, cuts hand on faucet in D's apartment. TC gave SJ to D on the ground that P was a licensee. CA SC said "nah, let's throw out the restatement approach and confuse 1Ls" 2. CA adopts a more general standard of reasonable care that includes basic factors like the relationship between P and D, moral blameworthiness, and policy considerations - generalized std of duty to use reasonable care is a question of fact for the jury. 3. About half of all state jurisdictions have followed this approach and done away with the rigid distinctions 4. Makes it easier for the P's case to reach a jury because it takes away D's use of pre-determined categories of liability as a defense - PROCEDURAL DIFFERENCE - makes Ds more likely to settle. 5. Rowland under Rest. Approach - P is a licensee harmed by a condition of the land, no duty to inspect but duty to warn of conditions guest may not know about but D does. Whether D knew of the danger is a question of fact for the jury.

Lordi v. Spiotta

OCCUPATION OF LAND CASE - "gas furnace explosion" 1. D invites P and P's son to D's house. Son goes down to light heater in basement; D goes down to turn off the heater, but doesn't actually turn it off. Gas accumulates. Later D tells P to go light furnace. Furnace blows up. Son killed. 2. D liable because he negligent failed to turn off the heater properly and caused the danger. D didn't adhere to the basic/universal/background standard of care. 3. D created the harm!

Davis v. McDowell

OCCUPATION OF LAND CASE - "inadvertent asphyxiation of licensees" 1. Wife and husband go to visit stepfather in stepfather's doctor's office; wife and stepfather are inadvertently asphyxiated by chimney valve that had become rusted shut 2. No liability for D because court found no evidence that Ps were anything but social guests so D owed no duty to discover unknown dangerous conditions and make property safe. 3. No duty because D didn't know about CO.

Keffe v. Milwaukee R. Co

OCCUPATION OF LAND CASE - "kid hurt playing on turntable" 1. Kid trespassing and loses leg playing on D's turntable. 2. AC gave judgment to P because D knew that turntable was an 'attractive' (fun to play on) hazard' to kids and did not take steps to protect kids from this danger that D knew they were attracted to. 3. Ct found D had duty to protect from dangers children couldn't appreciate - most courts have adopted "attractive nuisance" approach

Ryan v. Towar

OCCUPATION OF LAND CASE - "kids sneak into pump house" 1. P children cut a hole into D's pump house wall, sneak into it, are injured when playing on the water wheel 2. TC and SC ruled for D, claiming they had no duty to protect. 3. Difficult to distinguish from Keffe on duty because cts are using different standards

Boca Raton v. Mattef

OCCUPATION OF LAND CASE - "no contract, not an invitee" 1. Guy contracts to paint water tower for town for K never finalized and signed. Guy goes to paint water tower anyway, falls off tower due to rusted rung and dies. 2. Court grants for the city saying that the P had not yet become an invitee because the K hadn't been finalized, also wasn't a trespasser so guy falls into the licensee category where the D is only under an obligation to make dangerous conditions known. 3. D didn't know the rung was rusted so D not liable. If P had been an invitee than D would have been obligated to investigate water tower and make it safe.

Herrick v. Wixom

OCCUPATION OF LAND CASE - "trespasser at circus" 1. P sneaks into circus without ticket. This makes P a trespasser. P hit in face with firework. 2. Circus D liable to P bc shooting the firework was neg regardless if P was trespassing or not. D under duty to exercise reasonable care which means not shooting fireworks at patrons. Easily could have been a paying customer in P's spot.

Hustler Magazine v. Falwell

OUTRAGE CASE - "Jerry falwell" 1. D is not liable if P is a public figure or if P is a semi-public figure based on context and circumstances. 2. Principal was a limited public figure in school. 3. Policy = 1st amendment consideration: Public officials and figures cannot recover for the tort of emotional distress for reasons of publications without showing that the ad has been made with a false statement or actual malice. (law of defamation)

Van Duyn v. Smith

OUTRAGE CASE - "bashing abortion clinic director" 1. P was exec director at abortion clinic; D was an anti-abortion activist 2. D followed P to car, confronted her at airport, had posters with her face on it and picketed her workplace and residence 3. P not really a public figure - just because she has a high position doesn't mean she is in a position to shape society.

Greer v. Meeders

OUTRAGE CASE - "doc was mean, P harm" 1. Mean doc D is P's actual doc at the time; D yells at P and his wife while in hospital room; P suffers uncontrollable shaking and must get psychiatric treatment; D liable to P for outrage 2. D may be liable for outrage if D is in a position of authority, trust, or responsibility in relation to P and combined with rude or mean comments, P can show harm.

Roberts v. Saylor

OUTRAGE CASE - "doc was mean, P no harm" 1. P's former doc D doesn't like P. D runs into P at hospital before P's operation, D tells P he doesn't like her; P claims outrage but can't show harm; D not liable 2. D is not liable for outrage if D's comments are simply mean and rude and P can show no harm as a result.

Muratore v. M/S Scotia Prince

OUTRAGE CASE - "no picture on cruise ship" 1. P gets on cruise, doesn't want picture taken, Ds harass her and take pic anyway, follow her around boat, shout things at her, Ds liable to P for outrage; P was on boat and thus couldn't escape from D. 2. D is liable if P has asked D to refrain from engaging in conduct that is outrageous and D persists in said conduct. The repetition of the behavior may qualify as outrageous.

Walko v. Kean College

OUTRAGE CASE - "school admin" 1. D is not liable if P is a public figure or if P is a semi-public figure based on context and circumstances. 2. Principal was a limited public figure in school. 3. Policy = 1st amendment consideration: Public officials and figures cannot recover for the tort of emotional distress for reasons of publications without showing that the ad has been made with a false statement or actual malice. (law of defamation)

§ 323 Negligent Performance of Undertaking to Render Services

One who undertakes, gratuitously or for consideration to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if a) His failure to exercise such care increases the risk of such harm or b) The harm is suffered because of the other's reliance upon the undertaking

Intervening Causes

P argues: continued act; D argues: 3rd party act was superseding cause (broke causal chain)

Lowe v. CA Baseball League

PRIMARY ASSUMPTION OF RISK CASE - "P distracted by mascot, gets hit with baseball" - new trial 1. P is fan at baseball game, gets distracted by mascot, and gets hit with baseball. 2. Court denied motion for SJ by D; saying a jury could find that P did not assume the risk that resulted by being at the game. 3. D had a duty not to increase the inherent risk. 4. Issue of breaching SOC: was it customary practice? If so, then strong evidence that D did not breach SOC and P assumed the risk. 5. Note: contractual relationship between ballpark and visitor

Cohen v. McIntyre

PRIMARY ASSUMPTION OF RISK CASE - "dog bites vet" 1. D's dog bites vet P; vet P sues to recover from D on grounds that D did not disclose the risk. 2. Court holds for D; there were no intentional misrepresentations on D's part; and P assumes the risk of being bitten by a dog through the normal course of his work. 3. Different from Woodall, no intentional concealment here. 4. P taking off the muzzle was not outside the scope of normal activity.

Neighbarger v. Irwin Industries

PRIMARY ASSUMPTION OF RISK CASE - "private safety workers" 1. D negligently causes fire at factory; P is privately employed safety worker at factory and is harmed in fighting the fire that D caused 2. Court allows P to recover against D because there is no contractual relationship btwn the parties - NATURE OF THE RELATIONSHIP IS KEY 3. Whereas public firefighters are not permitted to recover against citizens because citizens are paying firefighters (in taxes) to assume the risk of fighting fires that they start; to allow recovery in that case would allow firefighters to "double dip." 4. Here, P, the private safety workers have not previously been compensated by the people who started the fire.

Woodall v. Wayne Productions

PRIMARY ASSUMPTION OF RISK CASE - "the Human kite" 1. D hires P to perform stunt where P will be pulled on a kite behind a car. Car driver is not supposed to go over 30 mph; D assures P that driver is trained. Driver not actually trained and goes 45 mph. 2. Ct holds for P that he assumed some risks but because of the explicit promise from D that the driver was properly trained; thus P didn't assume the risk of negligence on the part of the driver. 3. There is no actual negligence in Murphy in the operation of the ride, whereas here there is negligence in the operation of the stunt. 4. Key factor: the risk he encountered was not among the risks he assumed - P doesn't have to assume all the risks possible.

Murphy v. Steeplechase Amusement

PRIMARY ASSUMPTION OF RISK CASE - "the flopper" 1. P goes on an amusement ride called the flopper, which causes people to fall down. P falls down and injures kneecap; sues claiming that operating the ride is negligent. 2. P obviously foresaw that the ride was dangerous because the risk was what led to the amusement. 3. P therefore implicitly assumed the risk; and furthermore the ride was not operated negligently. 4. Key factors: hazards were obvious; P was willing to encounter risk; D didn't breach SOC because ride did what it was supposed to; P would have to argue that it was unreasonable to offer ride in the first place.

Hendricks v. Broderick

PRIMARY ASSUMPTION OF RISK CASE - "turkey hunters" - new trial, D may be L 1. P knew that hunter shouldn't intrude on another hunter issuing call; and evidence shows that P knew that's what D was doing and intruded anyway - contributory negligence 2. Even though hunting is dangerous, you don't assume the risk of being shot (D didn't assume the risk that someone else would be negligent - Woodall) 3. Wrong to instruct jury on assumption of risk here

The Wagon Mound #2

PROXIMATE CAUSE CASE - "Oil leak "P is boat owner" 1. Second boat that was damaged sues D. 2. Court in this case determines that there was a small foreseeable risk that the oil would burn which changes the outcome; D now liable

The Wagon Mound

PROXIMATE CAUSE CASE - "Oil leak "P is dock owner" 1. Oil leaks from ship D into harbor, ship sails off without cleaning up the spill 2. Dock P stops repairs on second ship while waiting for oil to disperse; when repairs resume, oil catches fire, damages ship and dock 3. Court finds that ship D could not have foreseen that the oil would burn, so no liability for D 4. Proximate cause first depends on the reasonable foreseeability of the harm. 5. Expected harm is environmental, D is NL because a reasonable person would not have foreseen this kind of harm.

Kinsman Transit Co.

PROXIMATE CAUSE CASE - "boat domino effect" 1. D negligent fails to maintain its anchor, ship breaks loose, takes out a bridge, causes a pile-up across the river and a floor 2. All resulting harm, even though maybe not reasonable foreseeable, were of the same type of harm that could have been foreseen - boat breaking free is foreseeably going to lead to property damage; doesn't matter that the final harm (flood) was kind of far-fetched. All harms stemmed from the same initial harm and were of the same type. Liability for D. 3. Its up to the fact finder to determine if resulting harms were all of the same type that is initially foreseeable. 4. That specific chain of events was not foreseeable but the type of events that occurred all were (specific occurrences don't have to be foreseeable)

Steinhauser v. Hertz Corp

PROXIMATE CAUSE CASE - "car accident, chick goes nuts" 1. D negligently causes car accident with P 2. P has an undiagnosed pre-disposition to schizophrenia 3. Physical impact of car accident triggers 4. D liable because a mental impairment is reasonably within the same scope of harm that may be contemplated by a car accident - ct says jury should be permitted to find neg act as proximate cause 5. P's arg: not expected harm (broken bone); D's arg: car accident creates risk of mental injuries (PTSD)

DiPonzio v. Riodan

PROXIMATE CAUSE CASE - "car running at gas station" 1. Guy leaves car running at gas station D that has policy of patrons turning off cars; car rolls into P and breaks P's leg 2. P sues gas station for not having their attendants tell guy to turn off car 3. D not liable because the PL (car rolling into guy) outside the scope contemplated by the policy (cars blowing up) - VERY different force which caused the damage 4. D's liability in terms of proximate cause turns on whether the harm suffered by P was within the PL foreseeable as a result of D's negligence.

Doughty v. Turner

PROXIMATE CAUSE CASE - "cauldron cover blows up" 1. Worker P bumps cement cover; falls into cauldron of molten cyanide; blows up and harms P 2. Expected danger of cover dropping into cauldron is a splash of molten cyanide; not an explosion - even though the injury (worker being burned) is foreseeable from both actions 3. D factory didn't know that the cover would explode 4. Court does not hold D liable because even though the worker was burned and the act of bumping the cover was negligent; it wasn't foreseeable that it would blow up; only foreseeable that it would splash 5. The force that led to the harm (explosion) was different than the foreseeable force that may lead to harm from dropping the cover (splash) 6. If actual force is different than foreseeable force than there may not be liability for D - foreseeable injury was same as actual injury but foreseeable force different from actual force.

Colonial Inn Motor Lodge v. Gay

PROXIMATE CAUSE CASE - "guy backs into motel" 1. D backs car into motel, drives off thinking he just bumped it 2. Actually broke the gas line; causing the motel to blow up 3. Court says whether the car backing into the building was a proximate cause of the building blowing up is a Q for the jury; was the building blowing up within the type of harm foreseeable by D negligently backing his car into the motel? 4. P wants to frame issue broadly (property damage) so as to include D's negligence with the type of harm 5. D wants to frame the issue narrowly so as to limit foreseeable damage to some crushed bricks on the outside of the motel, and exclude the building exploding from the type of harm that was foreseeable. 6. GAME: manipulate the foreseeable harm without going too broad (P) or too narrow (D).

Central of GA Ry v. Price

PROXIMATE CAUSE CASE - "missed stop" 1. P is passenger on Ds train; thru conductor's negligence, she was not let off at proper place, spent night at the hotel room furnished with kerosene lamp, which exploded, injuring P. 2. TC returned a verdict in Ps favor, SC reversed holding that the negligence of the railroad co. was not the natural and proximate cause of her injury - it was a separate, independent agency. The railroad co. could not have foreseen or provided against the injury by the highest practicable care. 3. No liability for D because the PL (high chance of inconvenience) of dropping P off at the next town is totally different than the PL (low chance of burns) actually suffered by P.

In Re Polemis

PROXIMATE CAUSE CASE - "planks fell and exploded ship" 1. Planks negligently knocked over, fell into ships hull where gas had been accumulating and resulted in an explosion. 2. COURT MADE A SHITTY DECISION - their standard was that if some damage is foreseen, then the D is liable for any direct damage caused by negligence - WE DON'T' FOLLOW THIS STANDARD 3. However, the PL is expected costs a reasonable person would have foreseen (boards falling and causing some damage to something/someone below, NOT an explosion)

United Novelty Co. v. Daniels

PROXIMATE CAUSE CASE - 1. D instructs P to clean machine with gasoline in small room with open flame heater 2. While cleaning, a rat soaked in gasoline runs over to the heater, gets lit on fire, runs back under the machine being cleaned with gas and P gets blown up 3. D liable because although the chain of causality is ridiculous the PL (getting dead) is exactly within the scope contemplated by a reasonable person when thinking about cleaning something with gas in a small room with an open flame. Further, the force (ignited gas) leading to the harm is also foreseeable. 4. Unusual chain of events does not prevent liability when PL is foreseeable. 5. Foreseeable injury & actual injury and foreseeable force & actual force all the same

Brauner v. Peterson

RES IPSA LOQUITOR CASE - "P hits escaped cow with car" 1. P's car hits D's cow after the cow escaped 2. Mere escape of the cow from its confines doesn't imply negligence - cows can sometimes escape 3. Adequate fencing of cows is not the same as perfect fencing 4. P can't rely on res ipsa but can prove negligence through direct evidence.

Ybarra v. Spangard

RES IPSA LOQUITOR CASE - "P post-surgical should harm" - EXCEPTION TO THE GENERAL RULE 1. P wakes up after operation with severe pain in shoulder 2. D argues that with so many medical professionals and instruments involved in operation, there was no way to determine who was responsible. 3. Court finds that the medical personnel in the exercise of their duty of care should have realized that something was wrong. 4. This case probably represents a minority view - but intended to prevent a conspiracy of silence - just under these circumstances would the case come out this way. 5. Policy = would be unjust to require patient under anesthesia to surface evidence. Without RIL, patients under would never be able to recover. Note: just shifts burden to defendants - doesn't mean they can't defend but it gives ptys incentives to come forward if they know what happened. 6. Don't want strict liability here - would hold many non-negligent doctors liable.

Byrne v. Boadle

RES IPSA LOQUITOR CASE - "barrel falls on P's head" 1. P walks below D's store and barrel falls on his head. Barrels were being stored on second floor of D's place. 2. AC reverses TC to find D guilty because facts were such that the only reasonable inference is that the barrel rolled out of D's place and D was under a duty to prevent barrels from falling out windows, so if barrel fell it was prima facie evidence of negligence. 3. Burden is on D to show evidence in contravention of P's Res Ipsa Loquitor claim. 4. Hand P: likelihood that barrel lowered over public road could fall and injure someone - substantial; L: harm that would occur - pretty high! B: build barrier/close off sidewalk - reasonable burden bc of high L 5. P doesn't have same access to evidence! But the fact that this accident occurred is evidence in itself

Wolf v. American Tract Society

RES IPSA LOQUITOR CASE - "brick falls on P" 1. P gets hit in head by falling brick at construction site. 2. Multiple contractors on site, many possible Ds, P sues a few of them. 3. Court dismisses because there's no way to identify the correct D; 4. D not in exclusive control over instrument of harm; no way to determine which D was in control. 5. Dissent suggests that suing the general contractor or owner may be more appropriate. 6. Ct holds that when person responsible can't be determined, it's better that the injury go uncompensated than innocent person held responsible.

Larson v. Hotel

RES IPSA LOQUITOR CASE - "chair falls out of hotel during riot" 1. Chair falls from D's hotel during riot, but P would have had to made a direct showing of evidence that the D's hotel was in sole control of the chair (guests, who D did not have control over, could have chucked it out the window) 2. Can't be RIL if D doesn't have exclusive control over cause of harm.

Guthrie v. Powell

RES IPSA LOQUITOR CASE - "cow falls through ceiling" 1. Cow falls throw ceiling onto P 2. Appropriate case for res ipsa because zero cows should be falling through floors so since one did there is the presumption of negligence

Bond v. Otis Elevator Co.

RES IPSA LOQUITOR CASE - "elevator crash" 1. P sues elevator maker/maintenance and owner of the building. 2. Both D's claimed that neither had exclusive control. 3. Both parties liable because: yes, hotel had exclusive control of elevator, however, with the understanding that the elevator company would examine it and judge its condition to warrant necessity of repairs or replacement. Both had exclusive control (shared exclusive control)

Connolly v. Hotel

RES IPSA LOQUITOR CASE - "mud hits P from wild hotel party" 1. Wild party has been going on at hotel for a few days 2. Hotel staff knew of the crazy party; took no real action to stop crazy party 3. D negligent because of overwhelming circumstantial evidence; P didn't have to affirmatively prove every fact of D's negligence.

Combustion Engine v. Hunsberger

RES IPSA LOQUITOR CASE - "wedge falls on P's head" 1. Wedge falls on P's head at D's construction site 2. P sues claiming negligence; AC says that the mere falling of a wedge doesn't imply negligence. Due care may have been taken but wedges and other small tools fall through no fault. 3. The burden of care to prevent all falling objects at a construction site is so high as to be impractical. Law doesn't require perfection, just the use of reasonable care. 4. Parties had a contractual relationship, so hypothetically both parties accepted the custom.

Reina v. Dade County

RESPONDEAT SUPERIOR CASE - "angry bus driver #2" 1. Instigating event was the guy flipping off the driver. 2. Bus driver's attack was motivated by purely personal dispute, not advancing his employer's interests, so the ct does not hold the employer liable. 3. Intentional tort undertaken by employee that is for purely personal reasons will not justify RS. "Quick-draw" hypo: an act may still be within the scope of employment even if forbidden (at that time or place) but employee was practicing to "serve his master"

Forster v. Red Top

RESPONDEAT SUPERIOR CASE - "angry bus driver going to the beach" 1. Ct finds liability for the bus company bc the bus driver's attack motivated by the drivers attempt to advance his employer's purpose 2. Instigating event was P cutting off bus driver while driving, thereby preventing driver from getting to destination on time; maybe employer has unrealistic schedule contributing to the driver getting into fight; Posner would say that should be taken into account. 3. Intentional tort undertaken by employee that is at least incidentally related to course of employment is enough to invoke RS.

Miller v. Reiman-Wuerth Co.

RESPONDEAT SUPERIOR CASE - "car accident heading back to work" 1. D's worker gets into car accident returning to work after D let worker go to bank 2. D employer not liable because to impose liability would mean that employers would be liable for all of employees' acts; also less foreseeable than Bushey 3. Employers not liable when employees are off the dime; but are when they're running an errand on employer's business, factual question for the jury 4. Line-drawing concern: all employee breaks (holiday/weekends) contribute to employee's happiness but no reasonable mind would find this is w/in scope of employment (too much of a stretch) 5. More ctrl employer exerts more likely he is liable (directing route/time)

Roth v. First National Bank

RESPONDEAT SUPERIOR CASE - "employee tips off criminals" 1. Bank employee tips off criminals that P often carries a lot of cash out of bank at regular time 2. Criminal attacks P and steals money; Bank not liable because employee tipping off criminals is way outside the scope of the bank employee's work and does not serve the employer. 3. Posner would ask how the bank instructs its employees or hires them; P could have a direct claim for negligence against the bank but RS may be easier/simpler to prove.

Miami Herald v. Kendall

RESPONDEAT SUPERIOR CASE - "paperboy is independent contractor" 1. Paperboy runs over P with his motorcycle; P sues the Herald; Herald defends by saying paperboy was an independent contractor. 2. Contract shows that its clear the parties believed themselves to be in an independent contractor relationship but court not bound by that. 3. Herald did not exercise control over how the paperboy delivered the papers; D not liable because paperboy was an independent contractor. 4. Imposing liability would force the Herald to allocate a lot of economic resources to managing paperboys which would be economically inefficient. 5. Compared to Konradi: court is addressing two different issues. Konradi - clearly an employee, asking if within the scope. Herald - asking if he is an employee, if yes, then clearly within scope. Note: While employers might avoid liability by hiring independent contractors (as opposed to "employees"), they give up the ability to control employees.

Konradi v. US

RESPONDEAT SUPERIOR CASE - "postman" 1. D's postal worker gets into accident with P on the way to work; P sues Postal Service 2. Postal Service requires workers to use their own car when delivering mail so they drive to work; PS requires employees take most direct route to work 3. Posner says that PS could try and reduce not the care of their employees but their activity by providing gov't cars instead of having employees use their own cars, and thus the workers would carpool or take public transportation to work. An employer on his way to work not normally under scope of employment. 4. Posner however notes that its not realistic for D to reduce the scope of its employees activities bc of the rural setting (no carpool or public transportation) 5. Posner implies liability because D orders its employees to take the most direct route to work and thus maybe foreseeable that workers would get into accident; D exercising control over how the drive is done using a tool he'll later use to do the employers work - distinguishes this from Miller 6. Posner economic approach: impose L when it creates incentive for employers to change the way it operates in a way that will decrease # of accidents (consider opening up regional offices to dec # accidents)

Bushey & Sons v. US

RESPONDEAT SUPERIOR CASE - "sailor hammered" 1. Sailor returning to Coast Guard ship in dry-dock absolutely hammered; screws with the dry-dock and damages it and the ship. 2. D argues that the sailor wasn't operating in the scope of his employment; ct doesn't buy this argument 3. Ct imposes liability but not because imposing liability will result in less negligence; nor because the D is better able to bear the costs; but instead because D should have foreseen that sailors might mess up the dry-dock (bc they are known for partying and they live there) 4. Risk that seamen coming and going from ship might cause damages was foreseeable enough to impose L 5. ¬Judge Friendly's approach rejects: motive test and also doesn't use efficiency as reasoning (P argues imposing SL would produce more efficient outcome, i.e., incentive not to hire drunk sailors - but judge doesn't buy this arg) 6. Judge Friendly's approach uses foreseeability: reasonably foreseeable sailors might damage dry-dock (either negligently, non-negligently, drunkenly) - CA uses similar approach - more P "friendly" 7. Note: under R2d (standard approach), gov't not liable (#3 not met)

Bolton v. Stone

RISK & PRECAUTION CASE - "cricket" 1. P harmed by cricket ball that comes over fence. D's liability under the hand formula turns on the cost of the fence to enclose the ground (B) and the potential harm expected (PL). 2. D may be liable for not building a short fence but not liable for not building a high fence. 3. P gets to choose which precautions should have been taken - P wants to choose least expensive B but that would have prevented a lot of expected cost. 4. Policy = we want to let accidents happen when it would be more expensive to prevent them - want the greatest net social utility (overall amount of goodness ($) produced to society) - BUT can present a distributional problem (who bears the loss continuously?)

Eckert v. Long Island R. Co.

RISK & PRECAUTION CASE - "guy saves kid, dies" 1. P jumps out in front of D's train to save third party kid on tracks. 2. P gets hit by train, dies; P's family sues D. 3. D claims contributory negligence on P's part for jumping out in front of train. 4. Probability of P saving child was high (obviously bc it was successful), Liability was also high though because P's life was at risk (obviously bc P died); both factors about equal means P was justified in taking the risk and no contributory negligence on P's part 5. Courts will not hold people contributorily negligent for taking a risk (as long as fair chance of success) to save another's life. (It would be contrib. neg to risk own life w/ no chance of saving the other)

Adams v. Bullock

RISK & PRECAUTION CASE - "kid and trolley wire" 1. Kid P is swinging a wire alongside D's trolley track; wire is long enough to touch electrified trolley wire which hurts P; P sues D saying D was negligent in not installing more safeguards 2. Court finds D not liable because more investment in safety would have been unreasonable burden and risk of accident so small already. 3. If D has exercised reasonable care, can't be expected to sustain extreme burden to protect against all eventualities. 4. It's okay for trolley to impose some risks because the activity being engaged in is socially valuable (Wright's analysis).

US v. Carroll Towing

RISK & PRECAUTION CASE - "no bargee on board" 1. Bargee wasn't on board, and ship sank. 2. Hand formula - B: cost of having bargee on board; P: Probability ship damaged w/out bargee on board; L: amount of harm that will happen if ship breaks away

Davis v. Consolidated Railroad Corp

RISK & PRECAUTION CASE - "train inspector gets run over" 1. Train inspector P is inspecting D's train and does not put up standard blue flag. 2. P gets run over; sues on allegation that D was negligent in now a) checking under train cars, b) radioing in that P had been seen in van before getting under train, and c) not honking horn before train started.

Alternative Liability

Requires all of the parties to be brought before the ct; tries to remedy an injustice where P can't recover just because there were multiple Ds (don't want D to escape liability just because there was more than 1) It's one thing to hold multiple people negligent when they were all culpable, but something different to hold multiple people liable when only 1 was negligent - CL wants to prevent this (Ybarra was an exception!)

Rickards v. Lothian

STRICT LIABILITY CASE - "backed up pipes" - D not strictly liable 1. Guy breaks into D's place and backs up pipes causing a flood that damages P's stuff 2. SL inappropriate because having running water is socially valuable (communal benefit) - ct doesn't want people to think twice about providing sinks 3. These pipes are a common feature of the land - "natural" 4. Plumbing is also for P's benefit (different from Rylands where reservoir was for Ds benefit only) 5. Regular negligence will create incentive to protect against trespassers

Sullivan v. Dunham

STRICT LIABILITY CASE - "blasting" - D strictly liable 1. D blasting trees using dynamite; tree stump gets blasted 400 feet away and kills P 2. Ct held that using dynamite is abnormally dangerous and applied SL; exercise of reasonable care is never going to eliminate the risk of someone or thing getting hurt when using dynamite

Lubin v. Iowa City

STRICT LIABILITY CASE - "bursting pipes" - D strictly liable 1. City D has practice of not replacing water mains until they break or nearly break 2. Court found the city strictly liable; by waiting so long, harm was certain to occur 3. SL places the loss from high-risk activities on the party who can most easily spread the costs of the enterprise by adding the cost of compensation for accidents resulting from the activity to the price of the product. As a result, price of product increases to cover liability and then reflects the true cost of the activity. If there is a risk that the negligence may result in the redistribution of costs unto consumers then there is SL. 4. Negligence should have been enough here because water pipes not abnormally dangerous BUT become abnormally dangerous when poorly maintained.

Klein v. Pyrodyne Corp.

STRICT LIABILITY CASE - "fireworks" - D strictly liable 1. Fireworks launcher negligently knocked over on its side so it shot the fireworks into a crowd 2. Court ruled that fireworks were so dangerous that SL applied but not all jurisdictions would follow this rule

Madsen v. East Jordan Irrigation

STRICT LIABILITY CASE - "minks go nuts" - D not strictly liable 1. D blasting 100 yards away from P's mink farm; minks get agitated by blasts and eat their young 2. Ct holds that even though SL is appropriate for blasting, the mother minks eating their young falls outside the foreseeable PL of the blasting and thus D not liable (Note: if blasts had killed the young, D would be liable)

Turner v. Big Lake Oil

STRICT LIABILITY CASE - "oil and salt water" - D not strictly liable 1. Salt water pond from oil drilling breaks and damages P's land; D was not negligent in storing salt water but high PL 2. Court declined to hold D strictly liable because the 'natural' use of the land in TX is for oil drilling and salt water storage is natural by-product and for policy reasons doesn't want to discourage oil drilling 3. Apply SL when we want to provide a disincentive for the activity - need to be able to collect H20 in TX

Walker Shoe Store v. Howards Hobby

STRICT LIABILITY CASE - "oil heater" 1. D not negligent in maintaining the oil heater/tank in his shop (D showed maintenance so P couldn't assert negligence); but blows up anyway damaging P's shop 2. Same ct that decided Lubin says SL does not apply; social utility in people being able to heat their home. It's natural to have heating oil, not inherently dangerous. Activity of having tanks does not = inevitable harm 3. No loss spreading rationale - like in Lubin

Miller v. Civil Contractors

STRICT LIABILITY CASE - "shooting range" - D not strictly liable 1. Bullet from police officers doing target practice at a shooting range ricochets off and randomly hits a guy riding in the back of a truck on a nearby road. 2. Ct ruled that the D shooting range was not liable; target practice has social utility for police; there are no alternatives for shooting practice whereas there are alternatives for enjoyment instead of fireworks 3. Also shooting range was in an appropriate location (rural area) - we don't want to encourage D to change that

Indiana Harbor Belt RR v. American Cyanamid

STRICT LIABILITY CASE - "toxic gas leak" - D not strictly liable 1. D manufacturer of dangerous chemical; spills while P is transporting it; P sues to recover cost of cleanup 2. TC applies SL, saying that the chemical has a high enough PL of a spill to justify strict liability 3. Posner reverses saying that the chemical is not what should be considered; it's the act of transporting it. Posner says simple negligence could be to blame for the spill and risk could have been lowered by adherence to a reasonable SOC ("c" of §520) 4. This accident was not likely if reasonable care was used - sounds like RIL, but not under exclusive ctrl, fails that D was "probably the culpable party..."- we don't know who it was - so P can't succeed under RIL

Sielger v. Kuhlman

STRICT LIABILITY CASE - "transporting gasoline" - D strictly liable 1. D transporting gasoline in tanker truck; accident causes gas to explode killing P 2. SL applied because transporting gasoline in bulk is super dangerous and it can't be reduced through any exercise of care, and 3. Another reason for SL is that the explosion could destroy the evidence of any negligence that the P would need. (Note, RIL doesn't adequately address concern about destroyed evidence)

Rylands v. Fletcher

STRICT LIABILITY CASE - "water and tunnels" 1. D's contractors are filling a reservoir with water and discover tunnels that run under P's property 2. Water causes tunnels to collapse; contractors negligent but D not negligent; P sues D (deeper pockets) 3. P assumed no risk simply because he owned neighboring land and D decided to do something risky 4. D's filling reservoir with water was non-natural and had a high PL; D could have acted with reasonable care and still not be found liable; No communal value - it was for his own benefit 5. Key factor - escape of something dangerous!

Pegg v. Gray

TRESPASS CASE -"hunting dogs" 1. D lets hunting dogs loose; D has knowledge that the dogs will probably enter P's land and is under a duty to restrain them for doing so, thus D is liable to P for trespass under (2) 2. If the D has constructive knowledge that something he owns (dogs) will probably trespass on the P's land, the D is liable - this happened repeatedly, great degree of certainty it will happen again 3. Policy = get people to control their damn pets. General rule, owner of dog not L for damages in unprovoked trespass, but intentionally sending dog/with knowledge it will likely go onto the land of another - L.

Desnick v ABC

TRESPASS CASE - "investigative reporters" 1. ABC sends undercover reporters to P doc's office; P doc sues on the grounds that D misrepresented themselves and P would not have permitted entry had P known D's true identity and purpose. 2. D not liable 3. Court finds some types of entry obtained when the D intentionally misleads the P do not mean that D is liable for trespass. 4. IE - D tells P he's a meter reader to gain access to P's house to snoop around = L (weird/harmful) 5. IE - D tells P he's a restaurant customer when he's really a food critic = No L (ordinary/beneficial)

Smith v. New England Aircraft Co.

TRESPASS CASE -"air over" 1. The plaintiff's right to his hand and right to be free of trespass extends both below the surface of the land and to the air above the land. 2. "To whomsoever the soil belongs, he owns also to the sky and to the depths."

Edwards v. Lee

TRESPASS CASE -"cave under" 1. The plaintiff's right to his hand and right to be free of trespass extends both below the surface of the land and to the air above the land. 2. "To whomsoever the soil belongs, he owns also to the sky and to the depths."

Malouf v. Dallas Athletic Country Club

TRESPASS CASE -"golf balls" 1. Golf balls from D's course keep hitting P's car. D not liable to P 2. If D enters or causes something to enter P's property without intention, and by accident, than no liability. 3. This result doesn't necessarily imply that Ps can collect nothing, just establishes that they were not victims of a trespass. 4. IE - D drives & loses control of car on ice and accidentally crashes into P's yard - not L

Van Alstyne v. Rochester Telephone Corp

TRESPASS CASE -"lead droppings" 1. D's workers enter P's property under right, do work, and leave behind lead droppings, which P's dogs eat, get sick from and die. D is liable 2. D leaves something behind on P's property that D would normally be under a duty to remove, than D can be held liable for trespass and the resulting damages. 3. Policy = to get people to pick up their crap

§ 314 No Duty to Rescue (Duty Arising from Affirmative Acts)

The fact that an actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action

Loss of Chance Explained

Think about scenario repeating 100x - we don't know if P is in-group of 5 or 20 but it is 4x more likely that he is in the group of 20, so 80% likelihood negligence caused the injury - COMPARE THE RATIO (not the actual numbers)

D accidentally takes P's hat on his way out of a restaurant; D discovers his mistake a few hours later and returns the hat; D liable for Trespass to Chattel.

Trespass to chattel is less serious than Conversion

§ 283 Conduct of a Reasonable Man; The Standard

Unless the actor is a child, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable man under like circumstances.

PROXIMATE CAUSE

Was it foreseeable that Defendant's failure to exercise reasonable care would cause harm?

§ 288A Excused Violation - Knowledge

Where the actor neither knows nor should know of any occasion or necessity for action in compliance with the legislation or regulation, his violation of it will ordinarily be excused

§ 520 Abnormally Dangerous Activities (Posner's Order)

c) Inability to eliminate the risk by the exercise of reasonable care e) inappropriateness of the activity to the place where it is carried on f) extent to which its value to the community is outweighed by its dangerous attributes a) existence of a high degree of risk of some harm to the person, land, or chattels of others b) likelihood that the harm that results from it will be great d) extent to which the activity is not a matter of common usage Note: c is threshold question, because if you can eliminate the risk by reasonable care, then negligence will suffice. Idea here is that no matter how much precaution is taken (B), harm can still occur.

Loss of chance

only appropriate where causation can't be established under traditional rule (you can't tell if negligence killed the patient or if the patient would have died anyways) - to avoid pocket of immunity Example: P has 1% chance of death; D's negligence increases to 3%; D liable under traditional rules because D more than doubled P's chance of death Example: P has 51% chance of death; D's negligence increases to 99%; D liable under loss of chance