Torts Outline Intentional torts Act Intent Causation Prima facie intentional tort To establish a prima facie case for intentional tort liability, generally the plaintiff must prove that the defendant acted, with intent, and caused the harm. The “act” in intentional tort liability refers to a volitional movement from the defendant. The intent will be met if the actor acts with purpose to bring about the consequences or knows with substantial certainty that his actions may bring about the consequences. The defendant does not have to intend the specific injury as longs as he acted to bring about the consequences that are the basis of the tort. The causation requirement will be met if the conduct of the defendant was a substantial factor in bringing about the harm. Battery Harmful or offensive contact Prima facie battery To establish a prima facie case of battery, the following elements must be proven by the plaintiff: 1) An act by the defendant which brings about harmful or offensive contact towards the plaintiffs person, 2) intent by the defendant to bring about the harmful or offensive contact, and 3) causation. The act is harmful if it brings about actual injury, pain, or disfigurement. The contact is offensive, if it is not consented to by the plaintiff, and it will be considered offensive if the reasonable person w/ ordinary sensibilities would consider it offensive. For purposes of battery anything connected with the person will be considered part of the plaintiff’s person. For causation it will be sufficient if the defendant sets in motion the force that causes the harm Garratt v. Dailey – 4 year old pulls chair out from underneath P who was about to sit down. i. Rule – Intent can be shown not only from the desire to bring about harm, but also if he knew w/ substantial certainty that it would occur as a result of his action. There need not be any express interest to injure. ii. Age is not a defense to battery – as long as D knew and understood P was about to sit down Beauchamp v. Dow Chemical Co. – P worked at D’s research facility; alleges D intentionally assaulted him by exposure to Agent Orange causing physical and mental injuries i. Rule – 2 theories of intentional tort 1. D truly intended the injury and the act 2. D intended the act that caused the injury and knew that the injury was substantially certain to occur from the act State v. Davis – slave tied to P by a rope to prevent escape; slave tied to rope considered part of P’s person – was a battery Intentional Infliction of Emotional Distress (IIED) Prima Facie Case [Restatements (Seconds) § 46(1)] The establish a prima facie case of intentional infliction of emotional distress, the following elements must be shown: 1) an act by the defendant to amounting to extreme or outrageous conduct, 2) intent by the defendant to cause severe emotional distress or recklessness as to the effect of the defendants conduct, and the defendant must be the proximate cause of the plaintiffs severe emotional distress Outrageous conduct- conduct that transcends all bounds of decency. Objective standard to protect against frivolous claims. Special relationship- common carriers and innkeepers owe special duties to their patrons. This will make the liable for conduct less than outrageous Known Sensitivity If defendant knows that plaintiff is more sensitive and thus more susceptible to emotional distress than the average person, liability will follow if the defendant uses extreme and outrageous conduct intentionally to cause such distress and succeeds. Eckenrode v. Life of America Insurance Co. – P’s husband died and D, the insurance company, failed to give her the husband’s life insurance policy that was supposed to be paid immediately. D failed to pay after demands from P. P says she suffered severe emotional distress and disturbance of mental tranquility unable to provide for children. Rule – Extreme character of a person’s conduct may arise from that person’s knowledge that one is peculiarly susceptible to emotional distress by reason of some physical or mental condition or peculiarity. Economic coercion is considered IIED Defenses to intentional torts --Consent- consent may be given expressly, or it may be implied by custom, conduct, words or by law. Consent a. Determining if consent has been given (2 objective criteria) i. Presence of consent is inferred from conventional meaning of P’s conduct 1. How does P’s conduct appear to other reasonable persons? ii. Content of consent is determined from what a reasonable person would understand herself to have consented to in the context at hand 1. Convention – what do people normally know or think when they deliberately enter into some activity? 2. Prescription – What kind of conduct is legitimate given the character of the activity? (ie. Game of football) iii. Consent is only effective if: 1. there is actual knowledge 2. there is an environment of freedom of choice *in emergency situations there is no freedom of choice if rescuing someone How is consent communicated i. Express 1. ex. contract ii. Implied 1. ex. Get on subway car at rush hour, you assume you will be jostled which may be offensive and harmful yet we consent to it even if we don’t say so iii. Presumed 1. ex. Imposition of consent in medical emergency and you expect paramedics on scene to save a life and nobody can give consent iv. Imposed – very similar to presumed c. How is consent vitiated i. Scope exceeded – not general enough to encompass every scenario ii. Withdrawn iii. Prohibited by public policy 1. incapacity, coercion, mistake/fraud O’Brien v. Cunard Steamship Co. – P was an immigrant at port waiting for smallpox vaccination. P was in line with others receiving the shot and saw others getting shot. When it was her turn, D found no mark from vaccination, said she needed one, and she held up her arm and accepted certificate after. P sues for battery. i. Rule – A reasonable person must be able to understand a lack of consent of P ii. Lack of consent must be reasonably present to others iii. Consider how power relationships affect consent iv. Does policy interest trump the dignitary interest? Hackbart v. Cincinnati Bengals, Inc. – P was injured by D’s player in an egregious conduct that was outside the scope of normal rules and regulation of the game. i. Rule – Injury caused out of retaliation in the course of a game that is not permitted in the rules is not assumed to be part of the game and its risks. Contact is outside the scope of consent Kathleen K. v. Robert B. – D had herpes and failed to disclose this information to P when she asked if he had no diseases. P said she would not have consented to sex if she knew he had diseases. i. Rule – Intentional misrepresentation/fraud will vitiate consent if it would not have been given w/o the fraud. Consent is not valid when D misrepresented self to the extent that consent wouldn’t have been given w/o information Kennedy v. Parrott – P had surgery by D for an appendectomy. During surgery, D found ovarian cysts that D believed posed a dangerous risk to P so he removed them w/o consent. P w/ no injury or damage, sues D for negligence and battery. i. Rule – If during surgery, a condition is found that is potentially dangerous, a physician may use general consent to surgery to overextend the surgery w/o specifically consenting to that part of the surgery. Self Defense a. Privilege – erases tort based on D’s conduct i. Where it is used reasonably and proportionately so it justifies behavior for the allegation ii. Not retaliatory, must forestall an impending battery iii. Affirmative defense that wipes out possibility of liability iv. Either an excuse or justification 1. Excuse – subjectively acceptable for particular D to do this and not be liable in his specific circumstances 2. Justification – objectively acceptable for persons to do such things a. no moral problem, no legal problem Objective Standard i. Resort to the use of a dangerous weapon to repel an attack is not justified except in exceptional cases where the actor’s fear of danger is not only genuine but is founded upon the facts that would likely produce similar emotions in men of reasonable prudence 1. reasonable man in like circumstances Subjective Standard i. Jury needs to take into account the physical and psychological properties of the accused in addition to the surrounding circumstances when the force was executed. NEGLIGENCE Prima facie To establish a prima facie case of negligence the following elements must be proved: 1) there was a duty of care from the defendant extending to the plaintiff to conform to a specific standard of conduct for the protection of the plaintiff against an unreasonable risk of harm. 2)A breach of that duty, that the breach of that duty was, 3) the actual and proximate cause, of the 4) harm to the plaintiffs person or property Nitro-Glycerin Case – Sender of package failed to label it w/ handle w/ care sticker etc. and Ds, seeing it was leaking, as procedure warranted them, to open it and inspect it. They did so and it exploded, destroying P’s building around office and killed a couple of them. i. Rule – A party unaware of danger that a reasonable man would not have known is not negligence ii. Reasonable care w/ knowledge is different than reasonable care w/o knowledge THE DUTY OF REASONABLE CARE When a person engages in an activity he is required to act as a reasonably prudent person would under the circumstances to not put others in an unreasonable risk of harm. No duty is placed on people to take precautions against unreasonable risks of harm. Negligence analysis a. Did defendant have a duty? i. Duty is a matter of law that is appropriate for courts to decide ii. Execution of that duty (what is reasonable) is a matter of fact for a jury/community to decide *when reasonable minds cant disagree it will be a matter or law b. What risk were or should be been reasonably foreseeable to defendant? (L) *what were the losses that were foreseeable i. Focus on facts from the defendant’s perspective and see what risks were foreseeable to the defendant ii. What reasonable precautions should have been taken are based on what risk are reasonably perceptible iii. What loss/harm is out there? c. How likely is the risk? (P) i. Helps us understand if risks are reasonably foreseeable d. What, if anything, should defendant have done to reduce the risk to an acceptable level? (B) i. Measure of precaution; there is an obligation on plaintiffs to come up with theories of the burden/precautions ii. Impossible unless you understand the facts from the defendant’s perspective The general rule Duty is owed only to the foreseeable victim Andrews view exception- the directness test The defendant owes a duty to unforeseeable victims, if the harm was caused as direct and natural consequence of the negligent act. In short, defendant owes a duty of care to anyone who suffers injuries as a proximate result of his breach of duty to someone. REASONABLE CARE The measure of care that a person should take to avoid responsibility is that which and ordinary person of reasonable prudence would take to protect his interests, if the whole risk was his own Unreasonable Risk A risk is unreasonable if it is sufficiently great to lead a reasonable person to anticipate and guard against them Hand Formula (a.k.a. BPL Formula) i. Helpful tool, not a rule Æ Troutt isn’t necessarily a huge fan of this ii. PL = risk (probability of loss) 1. P = degree of likelihood harm will happen 2. L = gravity of harm threatened 3 B = burden (costly precaution which might be taken in order to avoid or reduce risk) iv. B < PL v. Ex. safety catch costs 20 bucks to put on a machine. 1 in 100 machines will cause an injury w/o the catch. Injury will cost 1000 bucks. Cost 2000 bucks to put catch on. Not compelled to put guard on Social utility of D’s conduct is also taken into consideration and the good it conveys to the public – railroads are needed for economic and social utility and progress Specific situations i- Rescuer – a rescuer is always a foreseeable plaintiff as long as the rescuer is not reckless in caring for his own safety § 292 Factors considered in determining utility of actor’s conduct i. Social value which the law attaches to the interest which is to be advanced or protected by the conduct; ii. Extent of the chance that this interest will be advanced or protected by the particular course of conduct; iii. Extent of the chance that such interest can be adequately advanced or protected by another and less dangerous course of conduct *why is this conduct worth protecting, and is there another way to protect the same societal interest without this conduct or with a less dangerous one. THE REASONABLE PERSON This is the Subjective standard Physical characteristics- same as that of the defendant. A person with a physical handicap is expected to know about the handicap and act as a reasonable person with the knowledge of that handicap *a person who suffers from epileptic seizures will be liable for a driving accident while he has an attack Objective standard Average mental ability- reasonably prudent person under the circumstances. Unlike the physical characteristic, individual mental incapacities are not considered. Knowledge- the defendant will be held to know the same as the average person of his community know. Individual shortcoming will not be considered. BUT if the defendant has superior knowledge (expertise) he will be expected to use that knowledge. Special Standards Professionals A person who is a professional or has special skills (e.g., doctor, lawyer, airplane mechanic, etc.) is required to possess and exercise the knowledge and skill of a member of the profession or occupation in good standing in similar communities. Subjective standard– person who is reasonable but also has some of the particular capacities and traits of the particular individual whose conduct is being judged Restatement (Second) §238B i. Unless actor is child, insanity or other mental deficiency does not relieve the actor from liability for conduct which does not conform to the standard of a reasonable man under like circumstances Vaughan v. Menlove – D had some hay next to P’s property which caught fire even after D was warned of danger and took his chances. D argued he acted to the best of his judgment in a bona fide manner Rule – Court should adhere to standard of what a man of ordinary prudence would reasonably foresee and know ii. Policy – Pandora’s Box would be opened if we held each individual to its own specialized standard of care Always look for the policy consideration- slippery slope DETERMINING DUTY Restatement (Third) §7 Duty i. Even if D’s conduct can be found negligent * * * and is the legal cause of P’s harm, D is not liable for that harm if the court determines D owes no duty to P, either in general or relative to the particular negligence claim. Determinations of duty are unusual and are based on judicial recognition of special problems of principle or policy that justify withholding liability 1. duty is usually implied 2. matter of foreseeability and reasonableness 3. person are harmed outside the scope of one’s duty – not liable Scope of Duty -i. No duty will be found, in general, where reasonable persons would not recognize it and agree that it exists Miller v. Wal-Mart – Duty – established when it can be said that it was foreseeable that his act or omission to act may cause harm to someone Randi v. Muroc – “A court’s task….in determining duty – is not to decide whether a particular P’s injury was reasonably foreseeable in light of a particular D’s conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party” i. Difference between proximate cause and duty Duty “Foreseeability” Test i. likelihood of the injury; ii. magnitude of the burden of guarding against the injury; iii. consequences of placing that burden on the negligent actor; and iv. policy consideration Stages of foreseeability 1 duty- can the defendant foresee the category of harm 2 reasonable care- can the defendant foresee the specific harm *could he foresee what happened in this scenario to the plaintiff 3- proximate causation- but for this harm would the defendant have suffered this specific harm Common carriers and Innkeepers-Rule – D is a common carrier and the owner of the premises; An owner of a premises has a duty to take reasonable steps in maintaining the safety of the property. Reasonable precautions should be taken to protect patrons from foreseeable dangers from use of property and actions of 3rd parties. Negligent conduct of third parties Generally, there is no duty to protect a person from harm by a third party. The situation may arise when the person has the actual ability, and authority to control that third party. The defendant must also have knowledge of the defendants aggressive propensity. Standard of care in Emergency Situations The defendant must act like the reasonable person under the same emergency circumstances would have acted. This may not be considered if the emergency situation was brought about by the defendant. Restatement (Third) § 11 Disability i. If an actor has a physical disability, the actor’s conduct is negligent if it does not if it does not conform to that of a reasonably careful person w/ the same disability (not subjective) 1. ex. blind person must act as a reasonable careful person who is blind ii. If an actor engages in substandard conduct b/c of sudden incapacitation or loss of consciousness brought about by physical illness, this conduct constitutes negligence only if the sudden incapacitation or loss of consciousness was reasonably foreseeable to the actor Restatement (Third) § 12 Knowledge and Skills i. If an actor has knowledge that exceed those possess by most others, these skills or knowledge are circumstances to be taken into account in determining whether the actor has behaved as a reasonable careful person Minors i. Children held to degree of care usually exercised by an ordinarily prudent minor of the same age intelligence and experience of the child ii. Children can be held to adult reasonable care standard if they are operating an adult instrumentality/participating in overtly adult activity 1. ex. driving a car, operating a speedboat 2 step test 1- subjective- kids of same age, knowledge, and experience 2- objective- acting like a kid of similar age and like capacity CUSTOM AND PROFESSIONAL STANDARD Situations where specialized, formalized knowledge is required Customary norms are looked at skeptically while professional norms are treated deferentially. Customary standards have weight, but are never conclusive, while professional standards are usually conclusive. Customary standards The defendant will be measured like the reasonably prudent person in that line of work No one can be held to higher degree of care than that person of reasonable prudence within that particular line of work. This will be given weight but it is not conclusive. The custom of that industry may still be deemed negligent. Meeting the customary standard is not conclusive affirmative defense against negligence. “A whole calling may have unduly lagged in the adoption of new and available devices. It never may set its own tests, however persuasive be its usages. Courts must in the end say what is required”(TJ Hooper) There are precautions so imperative that even their universal disregard will not excuse their omission -When there is a high degree of acceptance, it doesn’t violate the law, public policy, or common sense, a customary standard may be persuasive. -Reasoning: law wishes to allow industry to grow and develop without legal interference and not to deter trade and profession due to expertise and efficiency. -Customary standard often not a defense due to the customs purpose being increased profitability or low standards to protect themselves from lawsuits as opposed to protection of the public. Professional standard. Degree of care of the ordinary reasonable prudent person in that profession under good standing. -When the physician makes a good faith choice between two acceptable alternatives there is no malpractice. -Plaintiff must use expert witness to establish professional standard and to show that he D fell outside of it -Take into account special knowledge 1. does not make standard subjective or professional 2. just fleshes out the standard Nature of the group must include a special relationship w/ its clients that assure society that those standards will be set w/ primary regard to protection of the public Locality rules i. Strict locality rule – compare conduct to others in same locality to find standard of ordinary care ii. Modified locality rule – compare conduct to others in similar localities to find standard of ordinary care iii. New standard – reasonable care compared to practitioners in same class to which he belongs 1. not geographically rooted 2. must act in same or similar circumstances Corporate Negligence – expands duties i. Arises from policies, actions or inaction of institution itself instead of actions of specific employees INFORMED CONSENT If an undisclosed risk was serious enough that a reasonable person in the patient’s position would have withheld consent to the treatment, the doctor has breached this duty Purpose – unlimited discretion in the physician is irreconcilable w/ the basic right of the patient to make the ultimate informed decision a. Right to determine what shall be done to his body For a case of Informed Consent Nondisclosure of required information Harm resulting from undisclosed risk Causation -this patient would not have consented to the procedure if he was aware of undisclosed risk(subjective) -The reasonable person would not have consented(objective) *Was the patient aware and did he authorize the performance of this duty Two ways to determine standard i. Medical standard – using experts, similar circumstances, and national community (specialists) to determine amount of disclosure necessary ii. Materiality/patient standard – giving patients all the information a doctor can reasonably expect a patient to want to make a decision (experts not required 1. Locus of control belongs to the patient and now it is what goes on in patient’s mind, doctor serves as a conduit to this agency iii. Difference - experts can tell us that what the standards are and if they are met under medical standard, materiality just relies on juries, maybe without experts, if enough disclosure was made What should patient be told i. The diagnosis ii. The general nature of the contemplated procedure iii. The material risks involved 1. Materiality - relevant information that a reasonable patient would need and want in order to make a decision iv. The prospects of success v. The prognosis if the procedure is not performed vi. Alternative methods of treatment, if any Exceptions i. Where the patient is unconscious or otherwise incapable of giving consent and harm from failure to treat is imminent; or ii. When risk disclosure poses such serious psychological threat of detriment to the patient as to be medical contradicted NEGLIGENCE PER SE Statutory negligence – if an actor violates a pertinent safety statute, and the violation results in injury, the fact of the violation by itself – per se – conclusively establishes the actor’s negligence The plaintiff may use the doctrine of negligence per se to establish that the defendant’s violation of a pertinent statute established a duty and a breach of that duty. The plaintiff must show that he was within the class of people that the statute aims to protect, and that the harm suffered was the type of harm the statute aims to prevent. Sword – P claims D’s conduct was negligent in regards of failing to comply w/ the statutory standard Shield – D claims conduct was in compliance w/ the statutory standard and in compliance w/ relevant safety statute 1. Negligence per se works better as a sword than a shield Elements of Negligence Per Se claim i. P must prove he was a member of the class sought to be protected by the statute ii. Injuries were of a type sought to be avoided (Purpose) Is it designed to protect this particular interest? Is it designed to protect this type of harm? injury must be related to the type of harm the statute is in place to protect against restrictive narrow interpretation is unfashionable iii. Does it provide a relevant standard of care? Excuses for violation The defendant may be excused in violating the claim if: 1-compliance with statute would be more dangerous than violating the statute 2- Compliance with the statute was impossible Effect of Establishing Violation of Statute Most courts still adhere to the rule that violation of a statute is “negligence per se.” This means that plaintiff will have established a conclusive presumption of duty and breach of duty. (Plaintiff still must establish causation and damages to complete the prima facie case for negligence.) A significant minority of courts, however, are unwilling to go this far. They hold either that (i) a rebuttable presumption as to duty and breach thereof arises, or (ii) the statutory violation is only prima facie evidence of negligence. Rebuttable Presumption - shifts burden of production onto the other side if sufficient evidence is submitted to get the presumption 1. if presumption is rebutted, goes back to evidence of/weight; or 2. if presumption isn’t rebutted, it becomes conclusive res ipsa loquitor “the thing that speaks for itself” when the specific fact pattern I not know but the accident that happened usually would not happen without negligence. Why resort to Res Ipsa Loquitur? i. Do not know exact negligence at issue ii. May be reasonable to infer from evidence iii. Circumstantial evidence – evidence of facts from which a jury could infer that the defendant was negligent 1. evidence must sustain the burden of proof by making it appear more likely than not i. The accident is of a type that ordinarily doesn’t happen in the absence of negligence ii. D was in exclusive control of the instrumentality that caused the accident 1. modern law – downplays “exclusive” 2. can include multiple defendants or where the precise instrumentality of injury is unknown iii. iii. P was not responsible for causing the accident i. Some courts say that burden of proof is shifted to D ii. Some say it simply permits jury to draw inference of negligence w/o P introducing direct evidence of negligence, but jury is not required to find negligence iii. Some courts say P has a rebuttable presumption of negligence and it is up to D to produce rebutting evidence 1. If D does so, burden of proof still rests on P Multiple Defendants Problem 3 parties- When there are 2 defendants one must be completely absolved before res ipsa can apply to the remaining party. Exceptions – Policy concerns and highest care duties where there is a special responsibility 1. Duties require D to explain or pay ex. Common carrier, doctors, surgeons, hospitals etc. A substantial minority of courts in such cases where defendants have control of the evidence require each defendant to establish that his negligence did not cause the injury. [See, e.g., Ybarra v. Spangard, 25 Cal. 2d 486 (1944)]) Plaintiff is not required to eliminate all other sources of that could have been the cause, must simply show that defendants negligence was the most likely cause. Up to the defendant to rebut the presumption. other responsible causes, including the conduct of P and 3rd persons, are sufficiently eliminated by the evidence 1. ex. exploding bottles and shipping being handled w/ care – manufacturer’s fault SPECIAL DUTIES The general rule- there is no legal duty placed on anyone to act affirmatively for the benefit of others. The general rule is subject to some exceptions: Special Relationships i. Assumption of a contractual duty or had created in the victim a reasonable expectation that he had assumed a duty ii. Victim is in rescuer’s custody and w/o access to alternative rescuers iii. Where the peril is created by a rescuer Restatement’s Exceptions §314A and §314B i. Common carrier to passenger ii. Innkeeper to guest iii. Land possessor to privileged public iv. Voluntary control of another v. Employer to employee within scope of employment Undertakes or aggravates the condition Emergencies Assumption of Duty by 1)Acting If the defendant aids the plaintiff, without any original requirement to do so, the defendant now has a duty to continue the rescue and act like a reasonably prudent person. Duty to avoid any affirmative acts which make P’s situation worse b. To fall under voluntary rescue doctrine, a rescuer must know a danger is present and take steps to aid an individual in need c. Elements of voluntary rescue doctrine where D makes P’s situation worse: i. Increasing the danger; ii. Misleading P into believing the danger has been removed; or iii. Depriving P of the possibility of help from other sources 2)Custody (Third Persons) a. Rule - duty arises to protect the person in custody and a duty to protect 3rd parties from the person in custody i. scope of the duty key as well ii. scope is commensurate w/ the scope of the risk created by its breach iii. must keep the duty manageable iv. 3rd persons must be a foreseeable victim While generally there is not duty to protect a victim from harm by a third person, there can be an affirmative duty when the defendant had actual ability and authority to control the 3rd person. It is also generally required that the defendant know or should have known that the third person is likely to commit the acts that require control. 3)Peril Due to Defendant’s Conduct One whose conduct (whether negligent or innocent) places another in a position of peril is under a duty to use reasonable care to aid or assist that person. *if you created the danger then you must act. Special Relations Duty of Common Carriers Common carriers are under a duty to use reasonable care to aid or assist passengers. Duty of Places of Public Accommodation Innkeepers, restaurateurs, shopkeepers, and others who gather the public for profit have a duty to use reasonable care to aid or assist their patrons and to prevent injury to them from third persons. a. b. c. d. Doctor/Patient Parent/Child Spouse/Spouse Employer/Employee (employer cannot escape liability by giving notice) School/Student (does not apply to colleges) The Variable Duty of Landowners (premise liability) Trespasser – One who remains on the land without the consent of the landowner Undiscovered trespasser is owed no duty except that the owner should refrain from reckless or intentional harm caused to the trespasser. Discovered trespasser- Landowner owes duty to 1) warn/make safe 2) artificial conditions 3)which could cause death or grievous bodily harm 4) and are unlikely to be discovered by the trespasser. Trespasser children Landowner owes a duty to trespasser children from artificial conditions. Attractive Nuisance Doctrine The plaintiff must show the following 1) Owner is or should be aware that there is a dangerous condition on his property 2) owner knows or should know that young persons frequent this dangerous condition 3) condition is likely to cause harm 4) the burden of protecting against the harm is slight compared to the magnitude risk Definition of Licensee A licensee is one who enters on the land with the landowner’s permission, express or implied, for her own purpose or business rather than for the landowner’s benefit. Licensee: guest on your property for their own benefit with no benefit to the landowner (social guest, rescuer, meter readers, post men) Landowner has no duty of care as with trespassers. Duty to warn the licensee of concealed dangers known to the landowner that are unlikely to be discovered by the Licensee *NO DUTY TO INSPECT Duty Owed to an Invitee (1) Definition of Invitee An invitee is a person who enters onto the premises in response to an express or implied invitation of the landowner. Basically, there are two classes of invitees: (a) Those who enter as members of the public for a purpose for which the land is held open to the public, e.g., museums, churches, airports; and (b) Those who enter for a purpose connected with the business or other interests of the landowner or occupier, e.g., store customers and persons accompanying them, employees, persons making deliveries, etc. There is a duty to exercise reasonable care and protect the invitees against known dangers included those revealed by inspection and those that should be reasonably foreseen by the owner. Duty to give notice of non-obvious dangers known to the landowner. Reasonable care by the owner may require exercising control over third parties on their premise. Scope of invitation: If the visitor’s use of the premise goes beyond the scope of their invitation, that person is no longer an invitee but a licensee. *DUTY TO INSPECT Open and Dangerous Condition Rule: relieves landowner of liability to a person’s injury when the injury sustain was from an open and obvious danger on the premises. No duty owed by landowner when danger is open and obvious No longer is a complete bar due to comparative negligence, each party responsible for the portion of the injury attributable to them. People shouldn’t assume that others will act reasonable and should take precautions to protect against unreasonable risk of harm. DEFENSES TO NEGLIGENCE Contributory negligence plaintiff’s unreasonable conduct contributed to the harm and therefore barred recovery unless the defendant knew of the plaintiff’s peril or should have reasonably known and therefore owed the plaintiff a duty of care. Elements of contributory negligence: The plaintiff was negligent The plaintiffs negligence was the actual cause of his injury The plaintiff did not merely enhance severity of his injuries Defense is unavailable if: The plaintiff still would have been harmed in the situation, even if they acted in a reasonable matter. The defendant is being accused of an intentional tort, breach of safety codes, or strict liability. Last Clear Chance Doctrine: If, just before the harm was caused, the defendant had an opportunity to prevent it, and plaintiff did not have the opportunity to do so, the last clear chance wipes of the contributory negligence defense. Plaintiff has the burden to show the following: 1. Plaintiff was in a position of danger caused by the plaintiff’s negligence. 2. Plaintiff was oblivious to the danger, or unable to extricate himself from the position of danger. 3. Defendant was aware, or by the exercise of reasonable care, should have been aware, of the plaintiff’s danger. Defendant could have avoided the injury to the plaintiff Doctrine of Avoidable Losses: plaintiff has an obligation to mitigate his own damages, which only becomes relevant after the injury has occurred. Remaining in harm- If plaintiff, after being put in harm’s way, remains there then that could be contributory negligence. ASSUMPTION OF THE RISK The plaintiff may be denied recovery if he assumed the risk of any damage caused by the defendant’s acts. This assumption may be expressed or implied. To have assumed risk, either expressly or impliedly, the plaintiff must have known of the risk and voluntarily assumed it. It is irrelevant that plaintiff’s choice is unreasonable. Knowledge of Risk Plaintiff must have known of the risk. Knowledge may be implied where the risk is one that the average person would clearly appreciate, e.g., risk of being hit by a foul ball in a baseball game. Voluntary Assumption The plaintiff must voluntarily go ahead in the face of the risk. However, plaintiff may not be said to have assumed the risk where there is no available alternative to proceeding in the face of the risk, e.g., the only exit from a building is unsafe. Certain Risks May Not Be Assumed -Because of public policy considerations, the courts uniformly hold that some risks may not be assumed. These include: a) Common carriers and public utilities are not permitted to limit their liability for personal injury by a disclaimer on, e.g., a ticket, a posted sign, etc. b) When a statute is enacted to protect a class, members of that class will not be deemed to have assumed any risk. Example: When a statute imposes safety regulations on an employer, the employee is held not to have assumed the risk where the statute is violated. c) Risks will not be assumed in situations involving fraud, force, or an emergency. Thus, for example, one could take action to save his person or property without assuming a risk unless his actions involve an unreasonable risk out of proportion to the value of those rights. No Defense to Intentional Torts Assumption of risk is not a defense to intentional torts. It is, however, a defense to wanton or reckless conduct. Involuntary exposure if: Defendant’s tortuous conduct leaves plaintiff no alternative to exercise of protect a right to which D has no authority to deny. Plaintiff acted to avert harm to himself or another caused by D Plaintiff acted out of duress caused by defendant Types of Assumption of Risk Defenses Express: plaintiff signed a waver assuming risk (recovery barred) Does not apply if releasing defendant of liability was against public policy or if the plaintiff was at an obvious disadvantage to bargain. Exculpatory clauses will only stand if they do not hurt public interest Primary implied: implied by conduct of the parties. Where risks are inherent to the activity being undertaken There is no duty to protect plaintiff from the risks that are inherent in the activity- getting tackled in a game of football. The risks are inherent to the activity if they would materially alter the nature of the activity. Secondary Implied: implicit agreement where plaintiff assumed the risk If plaintiff’s assumption of the risk was: Reasonable, then plaintiff may recover full damages Unreasonable, can only recover partial damages Firefighters rule: rescuers (civil servants, firefighters, police officers) who expose themselves to harm as a part of their occupation for benefit of the public cannot bring suit for the negligent conduct that required their presence in the first place. Exceptions: rescuer can recover if their harm is caused by a separate act unrelated to the reason he was called to the scene. 1.Person being rescued acts in a willful or affirmative manner which causes injury 2.Injury is caused by a third party unrelated to the reason why the rescuer is in the situation he is in (driver negligently hits a police officer while he is on the side of the road after pulling over another person). Comparative Negligence The vast majority of states now permit a contributorily negligent plaintiff to recover a percentage of his damages under some type of comparative negligence system. In every case where contributory negligence is shown, the trier of fact weighs plaintiff’s negligence against that of defendant and reduces plaintiff’s damages accordingly “Partial” Comparative Negligence Most comparative negligence jurisdictions will still bar the plaintiff’s recovery if his negligence passes a threshold level. In some of these states, a plaintiff will be barred if his negligence was more serious than that of the defendant (i.e., the plaintiff will recover nothing if he was more than 50% at fault). In the other states, a plaintiff will be barred from recovering if his negligence was at least as serious as that of the defendant (i.e., the plaintiff will recover nothing if he was 50% or more at fault). “Pure” Comparative Negligence The “pure” variety of comparative negligence, adopted in a third of the comparative negligence states, allows recovery no matter how great plaintiff’s negligence is (e.g., if plaintiff is 90% at fault and defendant 10%, plaintiff may still recover 10% of his damages). How to Compare Fault i. Uniform Comparative Fault Act § 2(b) – In determining the percentages of fault, the trier of fact shall consider both the nature of the conduct of each party at fault and the extent of the causal relation between the conduct and damages claimed 1. (1) whether the conduct was mere inadvertence or engaged in w/ an awareness of the danger involved 2. (2) magnitude of the risk created by the conduct, including the number of persons endangered and the potential seriousness of the injury 3. (3) significance of what the actor was seeking to attain by his conduct (utility) 4. (4) actor’s superior or inferior capacities, and 5. (5) particular circumstances, such as the existence of an emergency requiring a hasty decision Seat-Belt Defense: Defendant has the ability to reduce the damages sought by a plaintiff through the consideration of their own fault due to their lack of wearing a seat belt. i. Not a defense in all jurisdictions, but more likely to be used in jurisdictions using the comparative fault system as opposed to contributory negligence. Jury will analyze defendants fault in causing the accident, plaintiff’s fault in causing the accident, and then whether damages were exacerbated or even only caused due to plaintiff’s negligence in failing to use the seatbelt. Causation There must be actual and proximate causation to prove liability Actual Cause (Causation in Fact) Before the defendant’s conduct can be considered a proximate cause of plaintiff’s injury, it must first be a cause in fact of the injury. “But For” Test An act or omission to act is the cause in fact of an injury when the injury would not have occurred but for the act. Concurrent Causes The “but for” test applies where several acts combine to cause the injury, but none of the acts standing alone would have been sufficient (e.g., two negligently driven cars collide, injuring a passenger). But for any of the acts, the injury would not have occurred. There are times where the “but for” would not apply and bring about unjust results so there are alternative tests Joint Causes—Substantial Factor Test Where several causes commingle and bring about an injury—and any one alone would have been sufficient to cause the injury—it is sufficient if defendant’s conduct was a “substantial factor” in causing the injury Determining substantial factor Plaintiff was exposed to harm in excess of the normal exposure to the alleged harm Injury to the plaintiff sustained is of the type consistent with harm alleged Plaintiff was exposed to or resided in the proximity of the alleged harm Loss of Chance Doctrine: negligent conduct of a defendant deprived the plaintiff of a chance to avoid injury (defendant didn’t cause the disease, but made it worse, chances of recovering from the disease has been diminished by defendant) Probabilistic Harm: where plaintiff may have developed a disease due to exposure to a harmful substance by the defendant, but that disease occurs naturally in society among other members of the population not exposed to the harmful substance by defendant. i. Determining Probabilistic Harm: 1. Probability that plaintiff was exposed to harm 2. Plaintiff’s injury is consistent with exposure to the harm 3. Time and extent of the exposure 4. Unusual sensitivity to harm (age, immune system) 5. Dose estimations (how much exposure) 6. Latency period between exposure and effects of the harm Alternative causes approach Where the plaintiff was harmed by one of multiple defendants, and any of them could have been the cause but there is uncertainty as to which one. The plaintiff must show that he was harmed by one of them, and then burden shifts to the defendants to show that they were not the cause Alex and Basil both negligently fire shotguns in Clara’s direction. Clara is hit by one pellet, but she cannot tell which gun fired the shot. Under the alternative causes approach, Alex and Basil will have to prove that the pellet was not theirs. If unable to do this, they may both be liable. [Summers v. Tice, 33 Cal. 2d 80 (1948)] Multiple Party Causation: when multiple defendants have caused the injury and a but-for analysis would exculpate both defendants of liability. Joint and Several Liability: all negligent parties are held liable for the full amount of damages pro rata, ensuring plaintiff is made whole for his injuries. The defendant has the burden to prove he was not a proximate cause of harm If there are more than one negligent parties proven to be the proximate cause of harm, and that harm is indivisible, each defendant is liable for the entire harm (common liability) If indivisibility of an injury is uncertain, lack of clarity is treated as indivisible as to not exculpate any negligent defendant. Once plaintiff proves proximate cause for all defendants, defendants can then point fingers at each other to determine if one was more at fault than the other. Deep Pockets Concept: if one negligent defendant is incapable of paying the plaintiff, the other negligent defendants are responsible for paying their share. They can then recover on basis of contribution. Contribution: one defendant paying for another defendant’s portion of recovery to a plaintiff if one party paid more than his pro rata share of the liability. Joint wrongdoers are each individually responsible for the entire damage done by their joint negligence when either of them would have produced the outcome regardless of the other. Limits to Contribution Intentional Torts: usually an intentional tortfeasor may not get contribution from his cotortfeasors who have behaved intentionally as well. Medical Malpractice: original tortfeasor is responsible for the injury and the doctor may be responsible for the aggravation of the injury, but not the injury itself. They are not jointly and severally liable to each other and owe no contribution to each other’s damages. Examples of Joint and Several Liability regarding natural disasters If there are 2 fires, both necessary and sufficient and both from wrongful or negligent origin, then the defendant is liable If there are 2 fires, both necessary and sufficient, with one of their origins being unknown, then defendant is liable If 2 fires, both necessary and sufficient, with one of wrongful in origin while the other natural, the defendant is not liable (natural disasters or “acts of God” vitiate all liability) If known fire got there first, defendant is liable If unknown fire got their first, defendant is not liable If unknown fire swallows known fire, no liability Indemnity: shifts the damages from secondary party to primary party, even when secondary is negligent (often when a contract precludes liability from one party) Appropriate where one party has a greater liability or duty which justly requires him to bear the whole burden. Vicarious liability: most commonly, indemnity is granted to a defendant who is only vicariously liable for another’s conduct. Retailer v. Manufacturer: a retailer, which is held strictly liable for selling a defective, injury cause product, will usually get indemnity from other further up the distribution chain including the manufacturer of the product Right to Indemnity by Contract Contracts in which one person promises to indemnify another against consequences of his own negligence are generally upheld. The right to indemnification will not be read into an agreement unless there is evidence that the right was clearly intended. Vicarious Liability When one is held for damages caused by another simply because of his relationship to that person (e.g., employer for employee’s torts, landowner with nondelegable duty breached by an independent contractor, etc.), this party may seek indemnification from the person whose conduct actually caused the damage. Identifiable Difference in Degree of Fault A number of jurisdictions extend the principle of indemnity to allow one joint tortfeasor to recover against a co-joint tortfeasor where there is a considerable difference in degree of fault. Joint and Proportionate Liability: coming to rise in comparative fault jurisdictions. Even when an injury is indivisible, defendants are liable only for their proportion of the fault. a. Once not used for intentional torts, now is used for them. b. Deep pockets theory widely accepted c. Rejects pro rata contribution and replaces it with comparative fault liability. d. Contribution still available through determination of a jury e. Plaintiff bears the risk that one or several tortfeasors cannot be identified or are insolvent. Court says, based on fairness, each party is responsible for only their own fault and it is the responsibility of the plaintiff to find all partied who inflicted harm on them. Comparative Contribution A majority of states have now adopted a comparative contribution system based on the relative fault of the various tortfeasors. Comparative contribution changes the traditional method of apportionment in contribution cases (supra) and supplants indemnification rules based on identifiable differences in degree of fault. In both situations, nonpaying tortfeasors are required to contribute only in proportion to their relative fault. Example: Plaintiff suffers $100,000 in damages from the combined negligence of D1 and D2. The jury determines that D1 is 80% at fault and D2 is 20% at fault. Applying joint and several liability rules, plaintiff recovers all $100,000 of her damages from D2. Under comparative contribution, D2 can recover $80,000 from D1. PROXIMATE CAUSATION The doctrine of proximate causation is a limitation of liability and deals with liability or no liability for unforeseeable or unusual consequences of one’s acts. General Rule of Liability The general rule of proximate cause is that the defendant is liable for all harmful results that are the normal incidents of and within the increased risk caused by his acts. In other words, if one of the reasons that make defendant’s act negligent is a greater risk of a particular harmful result occurring, and that harmful result does occur, defendant generally is liable. This test is based on foreseeability. Direct cause case Where there is an uninterrupted chain of events between the negligence by the defendant and the harm to the plaintiff. There are no intervening or superseding causes. Foreseeable Harmful Results—Defendant Liable If a particular harmful result was at all foreseeable from defendant’s negligent conduct, the unusual manner in which the injury occurred or the unusual timing of cause and effect is irrelevant to defendant’s liability. Example: D is driving her sports car down a busy street at a high rate of speed when a pedestrian steps out into the crosswalk in front of her. D has no time to stop, so she swerves to one side. Her car hits a parked truck and bounces to the other side of the street, where it hits another parked vehicle, propelling it into the street and breaking the pedestrian’s leg. D is liable despite the unusual way in which she caused the injury to the pedestrian. Unforeseeable Harmful Results—Defendant Not Liable D, a cabdriver, is driving too fast on a busy elevated highway, threatening P, his passenger, with injury. Without warning, the section of highway that D is on collapses because its support beams had deteriorated with age. P is seriously injured. Even if D’s negligent conduct was an actual cause of P’s injury (because the cab would not have been on that section of the highway but for D’s speeding), courts would not hold D liable for the injury to P. Proximate cause asks whether the alleged cause was too remote or trivial, whether the harm occurred in an unusual way, or was an unusual result, that could never have been foreseen by the plaintiff Conceptual/Foreseeability (Cardozzo): If the risk of injury to the plaintiff was not one of the risks which made the defendant’s conduct wrongful, then the plaintiff should not be allowed to recover even if the defendant’s breach of duty directly and immediately injures the plaintiff Unforeseeable Extent or Severity of Harm—Defendant Liable Thin Skull Doctrine: carves out an excepting to the foreseeability test. It injects the element into something that is unforeseeable, since defendants cannot know what every plaintiff’s prior conditions are. Therefore, the defendant is responsible for the plaintiff “as he lies”. Although the plaintiff may be particularly hypertensive, he is not barred from recovery, and defendant will still be liable for harms caused. Directness Approach (Andrews): there is a duty to the public at large for any and all injuries resulting UNLESS there is a superseding cause; foreseeability is not needed WHERE INTERVENING FORCES ARE PRESENT. Whether an intervening force will cut off defendant’s liability for plaintiff’s injury is determined by foreseeability Foreseeable Results Caused by Foreseeable Intervening Forces—Defendant Liable FR+FI=Liable Where defendant’s negligence caused a foreseeable harmful response or reaction from an intervening force or created a foreseeable risk that an intervening force would harm plaintiff, defendant is liable for the harm caused. Dependent intervening forces are almost always foreseeable 1- Subsequent Medical Malpractice UNLESS there is gross mistreatment 2- Negligence of Rescuers UNLESS RECKLESS in rescue 3- “Reaction” Forces 4- Efforts to Protect Person or Property 5- Subsequent Disease 6- Subsequent Accident Acts of God Acts of God will not cut off defendant’s liability if they are foreseeable. Example: D, a roofer, negligently left a hammer on P’s roof at the end of the day. P is struck by the hammer when a strong wind blows it off the roof. D is liable to P. Foreseeable Results Caused by Unforeseeable Intervening Forces—Defendant Usually Liable Most courts would generally find liability here because they give greater weight to foreseeability of result than to foreseeability of the intervening force. An EXCEPTION exists, however, where the intervening force is an unforeseeable crime or intentional tort of a third party; it will be deemed a “superseding force” that cuts off defendant’s liability Unforeseeable Results Caused by Foreseeable Intervening Forces—Defendant Not Liable Unforeseeable Results Caused by Unforeseeable Intervening Forces— Defendant Not Liable STRICT LIABILITY PRIMA FACIE CASE To establish a prima facie case for strict liability, the following elements must be shown: 1. The nature of the defendant’s activity imposes an absolute duty to make safe; 2. The dangerous aspect of the activity is the actual and proximate cause of the plaintiff’s injury; and 3. The plaintiff suffered damage to person or property.