TORTS

Palsgraf v. Long Island Railroad Co.

A defendant is only liable for negligence if he owes a legal duty to the plaintiff and breaches that duty, and if the resulting harm was reasonably foreseeable. Fireworks package came loose pushing a guy onto a train, blew up and injured plaintiff. Totally unforeseeable.

♣ Santiago v. First Student, Inc.

A plaintiff in a negligence case has the burden of presenting evidence sufficient to demonstrate the existence of a material issue of fact relating to the defendant's negligent conduct Santiago couldn't produce any facts about how accident occurred

Posas v. Horton

Defendant was following too closely and rear-ended plaintiff when pedestrian stepped out into rode. ∆ wanted sudden-emergency instruction. Sudden emergency instruction: reasonable reaction to peril caused by no act of defendant's own.

Termination of Risk

Defendant's conduct created a risk, but the risk so created was is no longer existent. This idea emphasizes that the plaintiff has reached a position of "apparent safety."

Self Defense

Defenses or Privileges supply a legal reason or justification for the defendant's actions that render them non-tortious if (1) Reasonable force (2) Imminent danger

Hammerstein v. Jean Development West

Diabetic guest of hotel was placed in room on fourth floor. When a faulty fire alarm went off he had to walk down the stairs to get out; he twisted his ankle and got a blister that became a gangrenous infection (probably due to diabetes). Court held that faulty fire alarm would cause underlying/initial harm to a certain type of plaintiff (i.e. injury to ankle or foot on stairwell) is foreseeable, even if extent of infection was not

o Trespass to Chattels

Elements: 1. Intentionally 2. Without justification or consent 3. Physically interfered 4. With use and enjoyment of personal property of another 5. The other was harmed thereby Liability only if: "the owner's materially valuable interest in the physical condition, quality, or value of the chattel is harmed or if the owner is deprived of the use of the chattel for a substantial time"

o School of Visual Arts v. Kuprewicz

Ex employee Flooded servers with pornographic and spam emails. This was trespass to chattels because it interfered with the use of or damaged servers of the school.

Landers v. East Texas Salt Water Disposal Company

Example of an issue with But-For test- •East Texas' Salt water leaked into P's lake as did Sun Oil Co's oil Ds not in concert; each claimed the other was standalone but-for cause => Substantial factors test

NRS 41.505

Good Samaritan law

♣ United States v. Carroll Towing Co.

• Grace Line employees negligently caused the Anna C (barge carrying flour owned by the Conners company) to break adrift while operating Carroll Towing Company tug boat. The barge sank when it hit a tanker; there was no bargee on the Anna C. Had there been, the barge could have been saved. • Decided that the absence of a bargee on the Anna C reduced recovery to Conners, since the owner had been away for some time without excuse

Gonzalez v. Tallahassee Medical Center, Inc.

• In Gonzalez, a patron of a cafeteria slipped on a liquid that had been on the floor for at least ten to fifteen minutes. This length of time was sufficient to allow a jury to determine whether the defendant should have discovered the condition using reasonable care. o Mode of operation: the way they do business creates a hazard o Conscientiously by employee (dumps water and doesn't care/fix) o Constructive notice: above

Negligent Intervening Acts

• Liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant's negligence. o If the intervening act is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant's conduct, it may well be a superseding act which breaks the causal nexus

Foreseeability in the context of negligence

• Negligent only if his conduct created a foreseeable risk and the actor recognized, or a reasonable person would have recognized, that risk Typically now a question for the jury

Joint and Several Liability

• Plaintiff can enforce claim against either tortfeasor Gets judgment against both, but cannot recover more than her full damages Can enforce entirety against one or the other, or split

Intern. Union of Painters v. Great Wash Park LLC d/b/a Tivoli Village

• Projection of light alleging health code violations on the wall of a restaurant's building. • Not a trespass because there's no tangible trespass and no physical harm or damage.

Insolvent or Immune Tortfeasors

• Some wrongdoers are free to commit torts without any liability (immune) • Otherwise, insolvent meaning no assets/insurance from which to collect o Joint and several liability would recover from solvent Defendant 1, who couldn't recover contribution from insolvent Defendant 2

Bernier v. Boston Edison Co.

• To avoid negligence, a manufacturer must consider the reasonably foreseeable risks of injury created by a product's use in its normal environment and design the product to prevent an unreasonable risk of such injuries. • Broken electric pole case, known to fall over and did when hit. • Edison Co. is the party with all information about poles. Obligation on them with the information to address the forseeable risks •

Touchet v. Hampton

• Touchet left voicemails on Hampton's phone after Touchet's termination from Hampton's company. Hampton went to Touchet's new place of employment and beat him senseless. • Self-defense cannot be used when in response to words/threats alone, and cannot be invoked when force used is disproportionate(Can't shoot someone who attempts to slap you). • "Self-defense is for the prevention of harm."

insolvent

• no assets/insurance from which to collect

Constructive notice

• occurs when the defendant, exercising reasonable care, would have discovered the dangerous condition. Circumstantial evidence may be used to establish constructive notice, such as when a slippery substance, on the floor for an extended period of time, could have been detected by the exercise of reasonable care.

False Imprisonment

o Elements: 1. Intentional confinement and causing confinement of another person 2. Within a limited area (doesn't require physical restraint) 3. For a period of time, however short 4. Without lawful privilege 5. Without consent 6. Person confined is aware of or harmed by confinement

Assault

o Elements: 1. Voluntary act 2. Intent to create fear or apprehension of imminent bodily harm or contact 3. Fear or apprehension occurs (causation between act & fear/apprehension)

Battery

o Elements: 1. Voluntary act 2. Touching (contact) •Need not be a direct contact (i.e. blowing smoke, gunshot, etc) 3. Harm or Offense 4. Intent to touch 5. Intent to cause harm or knowledge to a substantial certainty that harm or offense will occur

Remittitur

o Judge can take away from award impermissibly high

Shopkeeper's Privilege: allows for shopkeeper to detain if there's

1) reasonable cause 2) for a reasonable time 3) for the purpose of investigation •Reasonable force can only be used if the subject is acting forcefully or in immediate flight

Strict Liability Elements

1. Abnormally dangerous activity 2. Tortfeasor benefits from dangerous activity ($) 3. Harm occurs that is the kind that makes activity dangerous

Elements of Negligence

1. Defendant owes Plaintiff Legal Duty 2. Breached legal duty by behaving negligently 3. Defendant negligence was actual cause 4. Defendant negligence was proximate cause 5. Plaintiff suffered actual damage

Strict Products Liability

1. Unreasonably dangerous defective condition 2. Defective condition when left manufacturer (∆)'s control 3. Proximate cause

o Trespass to Land

Elements: 1. Ownership or possessory interest in the land 2. Intentional and TANGIBLE invasion, intrusion, or entry by the defendant onto plaintiff's property

Thin Skull Doctrine

"Defendant may be liable for the full extent of plaintiff's harm, even where the extent of that harm was unforeseeable, where the other elements of a prima facie case are established"

Katko v. Briney

"Life interest is more important than property interest." •Shotgun trap in abandoned farmhouse because people kept breaking in. Blew the leg off Katko. •Defense of property not a defense in this case; serious bodily harm only permissible where intruder is committing felony of violence, felony punishable by death, or threatens/likely causes bodily injury or death. o Reasonable force standard

NRS 41A.100 - Rebuttable presumption without expert testimony for negligent acts:

(a) A foreign substance other than medication or a prosthetic device was unintentionally left within the body of a patient following surgery; (b) An explosion or fire originating in a substance used in treatment occurred in the course of treatment; (c) An unintended burn caused by heat, radiation or chemicals was suffered in the course of medical care; (d) An injury was suffered during the course of treatment to a part of the body not directly involved in the treatment or proximate thereto; or (e) A surgical procedure was performed on the wrong patient or the wrong organ, limb or part of a patient's body. Otherwise, need expert testimony

o Garratt v. Dalley

5-year-old Dalley moves chair out from under Garratt, she falls and Garratt is harmed. Appellate Court remanded for consideration because Dalley could have known to a substantial certainty that harm would occur • Age doesn't matter, you can commit a tort; but age can go to ability to have intent

Tunkl v. Regents of University of California

- Mr. Tunkl was a patient at a university hospital - Mr. Tunkl dies at the hospital - Mr. Tunkl had signed a contract with the hospital that contained an exculpatory clause - However, court found the exculpatory clause used by the hospital violated the public interest (public policy)

Factors of trespass to chattel: (Restatement 222A)

1. Extent and duration of control 2. Defendant's intent to assert a right to the property 3. The defendant's good faith 4. Harm done 5. Expense or inconvenience

Factors to Conversion of Chattel Restatement 222a

1. Extent and duration of control 2. Defendant's intent to assert a right to the property 3. The defendant's good faith 4. Harm done 5. Expense or inconvenience

Negligence Per Se Elements

1. Regulations clearly defines the standard of care 2. Harm is of the type regulation was meant to prevent 3. Class of persons applicable to 4. Violation is proximate cause of injury

Three-part test traditional/Common Law for Res Ispa Loquitur

1. The event is of a kind which ordinarily does not occur in the absence of negligence 2. Instrumentality or agent causing accident is under exclusive control of ∆ 3. Circumstances indicate the event was not caused or contributed to by the negligence of the injured person

EXCEPTIONS - informed consent doesn't apply

1. medical emergency 2. treatment required to protect health 3. impossible or impractical to obtain consent from patient or someone authorized to consent for patient 4. no reason to believe the patient would decline

Ways to falsely imprison without physical force

Contractual Duress of goods (stealing your pants when you're in changing room) Assertion of authority Threats or demands Instigating (falsely tells other employee to stop/confine customer for crime they didn't do)

Last Clear Chance

Allowed the negligent plaintiff full recovery when the plaintiff was left in a helpless position by his own negligence and the defendant, who had the last clear chance to avoid injury, negligently inflicted it anyway. No longer in Nevada.

♣ Stinnett v. Buchele

An employer is not negligent for failing to provide an employee with a safe place to work when the employee's knowledge of the risks involved with the specified activity is equal to or greater than that of the employer.

Right v. Breen

Automobile accident, but with no damages to the plaintiff (if any, were caused by 5 prior accidents) To succeed on a negligence action, a plaintiff MUST prove actual damages

o Shepherd v. Gardner Wholesale, Inc.

Bad eyesight (cataracts) caused tripping - negligence suit for raised concrete slab in front of defendant's business Physical impairments don't cause higher degree of care; reasonable person with the same physical disability

Baska v. Scherzer

Baska was breaking up a fight between two guys, got punched and lost teeth Transferred intent: while boys meant to batter each other, they commit battery on Baska.

o Dickins v. Puryear

Beat the shit out of the Dickens out in the woods, threatened to castrate him, then threatened if he didn't leave town they'd kill him. Threat that if he didn't leave town wasn't sufficiently imminent enough because it was conditional on a future act.

Ventricelli v. Kinney System Rent A Car, Inc.

Broken trunk; trying to close it on side of road when a car behind them "jumped" and struck them. They were in a safe place; might have come out differently if they were pulled over on freeway trying to fix broken trunk. Ruled- exceptional/ unforeseeable

Van Camp v. McAfoos

Case: 3 yo rammed old lady with his tricycle. Rule: a child of tender years is not liable for tortious conduct because no intent

o White v. Muniz

Colorado case requiring "dual intent" White placed Everly (grandmother) in care home, where she hit her caretaker • CO Supreme Court found intent to touch, no intent to harm or offend, so no battery

Conversion of Chattels (Personal property, NOT LAND) (Trover)

Elements • Intent to exercise "substantial dominion" over the chattel of another

The T.J. Hooper

Custom is the floor; something may not be custom, but if you omit it you may still be liable. Not custom to provide tugs with radios but they should; foreseeable danger of things being unseaworthy in bad conditions. Tugs are responsible for cargo

o Raess v. Doescher

Doctor confronting peer that reported his conduct. Outward manifestations of anger creates reasonable apprehension of bodily harm, satisfied assault.

o Avila v. Citrus Community College District

Facts: Plaintiff on baseball team and while batting the opposing pitcher beaned him in the head (maybe as retaliation). Defendant is the opposing team's college. Holding: This case demonstrates primary implied assumption. Whether intentional or not, getting beaned is within the normal risks/typical inherent risks of baseball. No recovery for plaintiff.

Hale v. Ostrow

Hale (plaintiff) was walking on a sidewalk when she encountered an overgrown bush owned by Ostrow (defendant). The bush grew across the sidewalk so she decided to circumvent the bush by walking into the street. Hale tripped on a loose piece of concrete and fell, breaking her hip. Hale brought a negligence claim against Ostrow. A defendant need not be the sole reason for the plaintiff's injuries to be found negligent. THERE CAN BE MORE THAN ONE BUT-FOR CAUSE Although the defective sidewalk caused Hale's injuries, so did bushes. Reversed at Supreme Court level, finding for Hale

o Cullison v. Medley

If requirements of assault are met, can hold defendant liable for emotional harm. This is the case with the family coming over and intimidating Cullison, Mr. Medley having and gesturing towards a gun, causing apprehension in the minds of reasonable people. Cullison had lots of emotional issues as result, including causing him to not be able to work, therefore recovered damages because of it

Avila Test

If the conduct does not fall outside of the ordinary activity of the sport, there is an implied assumption of risk and no liability.

Salinetro v. Nystrom

If the harm would have occurred regardless of defendant's conduct, defendant cannot be found negligent. Salinetro was injured in car accident, received x-ray from Nystrom who didn't ask about pregnancy. Discovered later that she was pregnant and fetus was dead (likely from x-ray). No negligence because if Nystrom had asked, Salinetro would have said she wasn't. No causation

Walski v. Tiesenga

In a medical malpractice case, a plaintiff must establish a generally accepted standard of care by which to measure the defendant doctor's conduct through expert testimony.

Additur

Judge can add to award impermissibly low

Tenny v. Atlantic Assocs

Landlord leasing apartment failed to control access to landlord's keys. Someone used the keys to enter and rape plaintiff. Court said "the happening of the very event the likelihood of which makes the actor's conduct negligent and so subjects the actor to liability cannot relieve him from liability" •You were supposed to keep this from happening, so it happening cannot be an intervening criminal act the likes of which gets you off the hook

Extended liability principle

Liability for harms as a direct result of tortious action, even if unforeseen ("think skull doctrine")

NRS 41A.035.

Limits noneconomic damages recoverable in professional negligence to $350,000.

o McCann v. Wal-Mart Stores, Inc

McCann family were leaving store and mistaken for shoplifters, asked to the back and held in office for an hour until released. Trespassory torts, like False Imprisonment, don't require harms - McCann family were aware of confinement; implicit or explicit threats of force or false assertion of legal authority can satisfy confinement.

o NEVADA NRS 41.141

Negligence: Recovery if Plaintiff 50% or below (not greater than; so, equal or less than)

A doctor has conclusively obtained the consent of a patient for a surgical or dental procedure if s/he has done the following

Obtained the signature of the patient to a statement containing an explanation of the procedure alternative methods of treatment risks involved

Comparative Negligence (comparative fault)

Percentages of fault dictate recovery (percentage proportionate of damages)

o Hill v. Sparks

Person with special training or expert knowledge held to "higher" standard; reasonable professional/expert => Jury decides

o Harnish v. Children's Hospital Medical Center

Plaintiff underwent cosmetic surgery to remove benign neck tumor, lost tongue function. A physician owes a duty to his or her patient to disclose in a reasonable manner all medical information that the physician possesses or reasonably should possess that is material to an intelligent decision by the patient whether to undergo a procedure. Two parts of the test: 1. Violation of a standard (Uninformed risk occurs) 2. Is of the kind that patient wouldn't have undergone surgery (causation/material) Would have altered their decision / reasonable person wouldn't have taken the risk [objective and subjective test]

Comparative Fault

Plaintiff's recovery reduced by proportion they are at fault for their own losses

o Christensen v. Royal School District No. 160

Public policy concerns dictate that minor children do not have a legal duty to protect themselves from sexual abuse by their school teachers

o Snyder v. Turk

Surgeon grabbing nurse in surgery, shoving head toward surgical site. Intent was not to harm, but there was intent to offend or knowledge to a "substantial certainty" that it would cause offense

Res Ipsa Loquitur

The mere fact of the accident having occurred is evidence of negligence

o Vergara v. Doan

The standard of care in a medical malpractice action is defined by the degree of care, skill, and proficiency exercised by reasonably careful, skillful, and prudent medical practitioners in the same class, acting under similar circumstances.

What is the duty of someone to protect someone else from a third party

There is no duty, unless special relationship

Comparative Negligence (comparative fault)

This is the rule. Percentages of fault dictate recovery (percentage proportionate of damages)

♣ Thoma v. Cracker Barrel Old Country Store, Inc.

To prove negligence in a premises liability case, the plaintiff must show that the defendant either caused a dangerous condition or had actual or constructive notice of the dangerous condition.

States v. Lourdes Hospital

To use res ipsa loquitur in a medical malpractice case, a plaintiff may use expert testimony to establish the likelihood of the injury occurring in the absence of negligence when a basis of common knowledge is lacking.

Apparent Present Ability:

Toy gun scenario, doesn't have present ability, but has apparent present ability

Duty to Inform of Risks of NOT Doing Procedure

Truman v. Thomas Pap smear refused by patient (over six-year period), doctor never informed of risk of missing cervical cancer diagnosis. Did get cancer, did die. Doctor had duty to inform. Doctors DO have duty to inform of risk of foregoing test

o Wagner v. State

Utah "single intent" case Mentally handicapped/developmentally disabled man guilty of battery because he had intent to contact • State not liable because it couldn't be at fault (failure to supervise) if the result is battery

Butterfield v. Forrester

When a plaintiff fails to use ordinary care in avoiding an obstruction caused by a defendant, the plaintiff may not recover damages from the defendant. While repairing his house, Forrester (defendant) placed a pole across a public road. Butterfield (plaintiff) was riding his horse so hard down the road he was not exercising ordinary care and did not see the obstruction. He crashed into it, was thrown from his horse, and experienced severe injuries.

Rescue Doctrine

When the rescuer is injured and sues the tortfeasor whose negligence creates the need for the rescue (no comparative fault unless the rescuer is reckless).

o Cohen v. Smith

Woman expressed her religious belief that she couldn't be seen or touched by a man when she was naked; was operated on, touched by male nurse. Because of her expression of belief, the touch was found offensive, satisfying battery. Explicitly revoked consent, which would otherwise be implied.

Single intent

a person need only willingly touch another and cause a harmful or offensive result to be liable for battery.

Transferred Intent:

intent to commit one tort constitutes intent if another occurs OR intent to commit tort on one person constitutes tort that occurs on another OR both

Dual intent

requires that a tortfeasor both intend to cause the contact and INTEND for the contact to be harmful or offensive. Brings purpose into the equation

Pipher v. Parsell

• Dude yanked the wheel twice; unforeseeable and owed no duty the first time, but did the second. • A driver owes a duty of care to his passengers because it is foreseeable that passengers may be injured if through inattention or otherwise, the driver involves the car in a collision. • Jury is to decide what is reasonable care

♣ Indiana Consolidated Insurance Co. v. Mathew

• Garage on fire, no duty to save the garage when the lawnmower on fire • In a negligence action, a person is held to the 'reasonable person in like circumstances' standard, which values human life over property and applies even in the face of a sudden emergency not of the person's own making. • Common practice substantial over advisable approach due to reasonableness

What happens if If negligence increases the possibility that a particular kind of injury will occur and it does occur?

the burden of production shifts to the D or neg. party

Forsyth v. Joseph

• Going 55mph @ time of impact after skidding/braking 129 feet. Left skid marks, vehicle continued moving after impact. • Circumstantial evidence can be used for inferences drawn by the jury

Contributory Negligence

traditionally, plaintiff could not recover if they were at all to blame for contributing to the accident (affirmative defense)

Upchurch v. Rotenberry

• Appellate Court won't interfere with JNOV absent clear error because jury is finder of fact and weighs credibility of witnesses • One-car crash. Rotenberry was driving, Upchurch being sole passenger. Rotenberry was only witness, and jury believed her when she claimed an animal darted in front of her, causing her to swerve, lose control, and strike tree. Upchurch died. Found for defendant.

Apportionment Among Defendants

• Defendants contribute to compensate plaintiff's losses in proportion to their liability • Includes joint and several liability

Gortarez v. Smitty's Super Valu Inc

•Clerk thinks he sees Gortarez's cousin Hernandez of stealing. Security guard, Gibson, chases them out of parking lot and searches Hernandez (who doesn't resist and says he didn't steal anything, which he didn't). oViolent scuffle between Gibson and Gortarez (putting Gortarez in a headlock) causes damages •May not be a proper purpose. Not reasonable use of force, so not under shopkeeper privilege.

♣ Collins v. Superior Air-Ground Ambulance Service

•Elderly woman at care facility, then transported by ambulance; returned home with broken leg and dehydrated •D argues claim of RIL couldn't have multiple D because undermined instrumentality requirement •Held: 2 Ds can hold exclusive instrumentality

Brown v. Martinez

•Kids break into a melon patch, Martinez scares them with rifle shot to opposite corner and shoots the third kid that was hiding there. •Martinez obviously not scared for safety, use of force was disproportionate to defense of chattels. •Transferred intent: intended assault on the first two boys, double transfer to battery on the third.

o Dillon v Frazer

♣ Dillon injured in car accident and awarded $6,000 then with additur upped to $21,000 • Unacceptably low when evidence of over $500,000 damages • Award must be based on evidence, not passion/malice/error • Judge told jury 3rd party compensation doesn't matter (Collateral Rule Source)

Hirpa v. IHC Hospitals

♣ Good Samaritan: immunity to doctors outside their place of practice w/no preexisting duty (want to allow them to help)

Five Categories of Excuse for Negligence Per Se

♣ Violation is reasonable because of actor's incapacity ♣ Neither knows nor should know of the occasion for compliance ♣ Unable after reasonable diligence or care to comply ♣ Confronted by emergency not due to his own misconduct ♣ Compliance would involve greater risk of harm to the act or others