Rules Outline
I.
Vicarious Liability/respondiat superior
a. Christensen V. Swenson
b. Birkner Test
i. employee’s conduct must be of the general kind the employee
is hired to perform (must be about the employer’s business
and the duties assigned to the employer)
ii. employee’s conduct must occur substantially within the hours
and ordinary spatial boundaries of the employment
iii. employee’s conduct must be motivated, at least in part for
purpose of serving the employer’s interests
II.
Strict Liability
a. Always liable
b. Must have voluntary action
III.
Elements of Common law Trespass
a. Injury
b. Voluntary act
c. Due care (ordinary care)
IV.
Careful
Careless
Result
P&D
No Tort
P&D
No Tort
D
P
No Tort
P
D
TORT
V. BPL formula US V. Carroll Towing
•
NEW Rule:
o P=probability of breaking away
o L-gravity of injury
o B=Burden of adequate precautions
o Liability depends
•  IF B<PL= liability
•
IF B>PL no liability

P&L vary with place and time
VI. Reasonable Care Standard and Exceptions
- The Jury decides (unless it is clear Judge decides)
- Custom DOES NOT necessaryily set reasonable Care (in the
old rule it did)
- generally there is a reasonable person standard Objective,
external norm standard, but take into consideration the
situation of D
- EXCEPTIONS
o Dumb & Clumsy D- rpp No special standard
o Physical Disability- hybrid 283C
 283C- actor must conform to standard of conduct to avoid
being negligent that of a reasonable man under like
o
disability
Children- hybrid –reasonable care of a child of their age, intellect,
experience
 More like physical disability
 Except when doing adult activity (RPP)
 Allows change in age of child
Old People-RPP
Mental Disabilities- RPP
Superior Abilities- use the higher standard than RPP
Gender RPP
o
o
o
o
o
Medical malpractice custom IS the standard of Care (Sheeley V. Memorial
Hospital)
 Expert testifies as to the standard of care
 Expert testifies as to how the D deviated from the standard
2 RULES
1) Strict/Same locality rule
• - expert testifying must be from the same community as the defendant
• - rationale for this rule:
• o opportunities, experience and conditions may differ between
densely and sparsely populated communities
• - arguments against:
• o low standard of care in smaller communities
• o failed to address or compensate for conspiracy of silence
 it is anachronism – old fashioned
2) National Standard
physician is under the duty to use the degree of care and skill that is expected
of a reasonably competent petitioner in the same class to which the or she belongs
acting in similar circumstances
Informed Consent Standard
(Reasonable Patient Standard)
- whether the physician adequately presented the material facts so that the
patient can make an informed decision; obligates the physician to
disclose only the information material to a reasonable patient’s informed
decision
- NO EXPERT WITNESS NECESSARY
- EXCEPTIONS- no consent needed if it is an emergency situation (shine V>
Vega)  but this is not always the case appellate court reversed and
said could only give treatment without informed Consent if the person
was unconscious and the family was not around
An alternative standard/ Reasonable Physician standard/Disclosure standard
-that which a reasonable physician would disclose
VIII. Negligence Per Se
ELEMENTS
- violation of safety statute
- type of harm that the statute sought to protect
- class of person that the statute sought to protect
o Martin V. Herzog
•
Section 286 Restatement
• a.
Court may adopt statuate as standard of RPP if
• i.
Enacted to protect a class of persons including that
whose interest is invaded and
• ii.
To protect the particular interest being invaded and
• iii.
To protect that interest against the kind of harm which
ahs resulted and
• iv.
To protect that interest against the particular hazard
from which the harm results and
•
Regulatory Compliance IS NOT A DEFENSE (Hall CHemical C. Silverman)
EXCEPTION: TEDLA V. Ellman
- violation of safety statute is excused when the violation sought to avoid
the very harm which statute meant to protect
IX. Elements of Negligence
1) Duty- Reasonable care generally( D must have constructive noticeGordon V. American Museum of Natural History)
2) Breach (of duty causes negligence)  question for jury
3) Causation
4) Harm
X. RIL- Res Ipsa Loquitur- presumption of negligence
Elements (Goodyear tire & Rubber V. Hughes)
1) instrumentality under exclusive control of D
2) accident would not occur ordinarily without negligence
3) accident not 2nd degree voluntary action or contributable by P
3 ways it is applied
1) permissive inference- jury can decie either way
2) rebuttable presumption burden still on P (if D silent P wins)
3) shift of burden to D
Policy Reasons RIL
1) compensation
2) evidence forcing- someone other than P can tell what happened
(because they know better than the P)
3) fairness
Ybara Type Fact patterns Factors:
1) unconscious
2)
3)
4)
5)
common purpose
conspiracy of silence
medical treatment
entrustment
XI. Not Duty to Rescue- Generally
A) Negative duty- everybody owes duty to avoid causing harm
B) Affirmative duty- no duty to act, generally
C) Exceptions
1) special relationships (Restatement of Torts section 314A-may be
proven by compensation for services
Examples
a) common carriers
b) inn keepers
c) possessors of land held open to the public
d) persons who have custody of another and that person is
deprived of normal opportunities of self-protection
e) co-adventurers
-reliance
-mutual dependency
f) Social adventure creates social duty? (Farwell V. Keaton)
FACTORS
1. in custody
2. deprived of opp. To protect self
3. expectation of protection
4. existing or potential economical advantage
BEING FRIENDS IS NOT ENOUGH ( Farwell V> Keaton)
2) Undertakings
324 Restatement of Torts
- failure to exercise reasonable care to secure safety of
others while in his charge
FACTORS
1. assuming control of custody
2. leaving worse off
3. reasonable reliance
3) non-neglgient Injury
OLD View- innocent harm(non-negligent) do not have to
help (Union Pacific Railway V. Coppier
NEW VIEW any injury creates duty (Moldanado V. Southern
Pacific Transportation CO.)
4) creation of risk5) Contract relationship
a. Privity not required for duty but K can give rise to duty
1) Tarasoff Case- duty to 3rd parties Generally No Duty
a. Factors
i. Foreseeability not enough
ii. Special relationship (in tarasoff no relationship to V
because therapist did not know her)
iii. Professional (in tarasoff therapist) seems to be important
iv. Identified victim (not necessarily by name)
v. Ability to control/custody- Restatement 315
vi. Safety/ Preservation of Human Life – trumps other dutys
like the confidentiality between patient and physician
b. Other possible third parties & Duties
i. Spouses- duty to warn partner
ii. Non-spouses future partners
1. Riesner case- duty owed
2. Hawkins case-> identity not know NO DUTY
iii. children
iv. friends No Duty
v. parents
vi. other drivers – no Duty; but Duty to warn the patient
before he drives
vii. HIV cases- NO duty to warn spouse, but if he did, no liability
for breaking confidentiality
viii. Tenant in a building where there is a K between landlord
and electric Company but not the tenant and electric
company I nteh common area where the incident
occurred NO DUTY (strauss case)
1. Reasons:
a. No K
b. Crushing liability
c. Foreseeability
d. Identified victims
e. Public utility
2) policy reasons for no Duty Rule
a. autonomy- freedom to do what you want not required to help
i. genovasi case
b. hard to determine who has duty
i. diffusion of responsibility
3) UHR Test
a. When there is a statute not followed(non feasance) that does not
specifically give rise to tort liability court must decide whether
there is a private cause of action (tort liability)
i. Whether the P is one of the class whose particular benefit
the statute was enacted
ii. Whether recognition of a private right of action would
promote the legislative purpose
1. What is the legislative purpose
2. Would a private right of action promote this
purpose
iii. Whether creation of such a right would be consistent with
the legislative scheme
1. Who is to enforce it
2. How will it be enforced
3. Does statute give liability for nonfeasance or
misfeasance
4) Dram Shop Liability
D
P
Injurer
Minor
Self
Drinker
Dram Shop
Social Host
Yes liability Hansen Yes
greater duty
liability (p.
than in
177)
Hanson; RCW
statute
Adult
Drinker
3rd Party
Self
No?
No?
Adult
Burkhart-Yes
liability
3rd PArty
minor
Yes Liabiltiy
Burkhart
No liabilityBurkhart
(p.178)
Reynolds V.
Hicks NO
Parent
No? not sure;
RCW
exemption
statute that
protects
parents
No b/c RCW
exemption
(statute not
enacted to
protect 3rd
persons)
XII. Premise Liability
2 Schools of Thought
1) Types of Entrants
• 1. Trespassers- no permission to enter
• 2. Licensees- someone who has been granted permission to enter
premises
• a. Social guests- person who has received social invitation
• 3. Invitees- someone who has been granted permission to enter for the
land possessor’s benefit or who is a member of the public who has been
granted permission to enter
• a. Public invitees- one of a class of public who is invited to enter
when the premises have become open to the public
• b. Business invitees- those who have been invited for the benefit
of the possessor (directly or indirectly connected with business
dealings)
Duty of Land possessor to each entrant
a. 1. Trespassers- Generally No Duty
b. a. Exceptions
i. i. To warn where the person is known to constantly
intrude upon limited area
ii. ii.
Duty to NOT willfully or wantonly cause
trespassers harm
1. 1. Bennett V. Napolitano (dog walker at night I nteh
park that was closed-court found plaintiff was
trespasser duty was to not wantonly or willfully
cause harm NO BREACH)
2. 2. Licensees- Duty to make safe dangers for which the possessor is
aware
3. 3. Invitees- reasonable care to protect the invitee from known dangers
and those that would be revealed by inspection
2) Reasonable care in the maintence of premises for the protection for lawful
visitors (merges licensee and invitees)
Other Rules for land owner liability
Open and Obvious Dangers
Divided on Duty of possessors to entrants
• - some courts say NO Duty if the danger open and
obvious
• - Others say DUTY if the danger is foreseeable
Activities
Traditionally
-trespassers and licensees could not revcover for active negligence
while on the premises
Today Restatement 341
• - Land Possessors owe duty to licensee when he is
injured by either affirmative duty or failure to carry out
activities with due care; AND
• - If the land possessor should expect the licensee will not
discover or realize the danger; AND
• - The licensee does not know or have reason to know of
the activities and the risk involved
Child Trespassers -
Attractive Nuisance Doctrine
Section 339 - Artificial Conditions Highly Dangerous to Trespassing
Children - A possessor of land is subject to liability for physicial harm to
children trespassing thereon caused by an artificial condition upon the land if:
(a) the place where the condition exists is one upon which the possessor knows
or has reason to know that children are likely to trespass, and
(b) the condition is one of which the possessor knows or has reason to know
and which he realizes or should realize will involve an unreasonable risk of
death or serious bodily harm to such children, and
(c) the children because of their youth do not discover the condition or realize
the risk involved in intermeddling with it or in coming within the area made
dangerous by it, and
(d) the utility to the possessor of maintaining the condition and the burden of
eliminating the danger are slight as compared with the risk to children
involved, and
(e) the possessor fails to exercise reasonable care to eliminate the danger or
otherwise to protect the children.
Holland V. Baltimore &O.R. CO- (9 year old trespasser injured by
freight train) said even a 9 year old knew the danger of a freight train
(SECTION IN APPLCIABLE)
Recreational Use of Land
Liability of land owners is limited in these cases ; willful misconduct required
Business Owners
• 1) Specific Harm Rule• a. Definition
• i. No duty to protect against violent acts of third persons
unless the landowner is aware of specific imminent harm
about to befall on them
• b. pitfall
• i. too restrictive in limiting the duty of protection that
business owners owe to invitees
• ii. outdated
iii. 2) Similar Incidents Rule
c. a. Definitioni. i. Foreseeability established by prior crimes on or near
the premises
ii. ii.
Past history gives the landowner notice of future
risk
iii. iii.
Consider the nature AND extent of previous
crimes as well as recency, frequency and similarity to the
crime in question
d. b. Pitfalls
i. i. Leads to arbitrary results
ii. ii.
Applied with different standards regarding the
number of previous crimes and degree of similarity
required to give rise duty
iii. 3) Totality of the Circumstances Test
e. a. Most common
f. b. Definitioni. i. TAKES ALL factors into account
1. 1. Nature, Condition, Location of land
2. 2. Similar incidents taken into consideration but
the lack of a previous similar incident will NOT
preclude a claim where landowner should have
known the criminal act was foreseeable
3. 3. Focuses on level of crime in surrounding area
4. 4. Property and minor offenses pre-cursors to
more violent crimes
5. 5. Greater duty on business owners to foresee risks
g. c. Pitfallsi. i. Greater duty on business owners
ii. ii.
Too broad of a standard
iii. iii.
Effectively imposes duty to protect customers in
areas experiencing any significant level of criminal activity
iv. 4) Balancing Test
h. a. Definition
i. i. Addresses interests of both business owners and
customers
ii. ii.
Balances the foreseeability of harm against the
burden of imposing a duty to protect against criminal acts
of third person
iii. iii.
High degree of foreseeability of harm and
probable harm is great burden on defendant substantial
iv. iv.
Lesser degree of foreseeability and harm less
substantial burden
v. v. High degree of probability necessary to impose duty to
provide security will rarely if ever be proven in absence of
prior similar incidents of crime on the property