Ch 3 (6) TRESPASS TO LAND (CB p. 66)
Dougherty vs. Stepp (N.C.1835)
Ch. 3 (6) – Trespass to Land
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Professor McNichols
1
Trespass to Land
Entry of
“Thing”
Early Comm. Law
Blackacre
Interest =
“Exclusive Possession”
vs. Modern Trespass Law
Direct Entry vs. Indirect
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Entry = Intentional
Trespass = Damage not Necessary
(“Nominal Damages” Awarded)
Professor McNichols
2
Trespass to Land
Entry
Blackacre
Interest =
“Exclusive Possession”
vs.
Nuisance
Interest = Use & Enjoyment of Land
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3
Bradley v. American Smelting (’85)
TRESPASS vs. NUISANCE
* Interests Invaded?
10/11/2006
Professor McNichols
4
Herrin v. Sutherland (’25)
AIR SPACE
NEAR GROUND
=
“Almost as inviolable” as soil
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5
TRESPASS BY AIRCRAFT
THEORIES
* PRIVILEGE (Rest. I)
* ZONE THEORY (Rest. II)
* NUISANCE
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6
Rogers v. Bd. of Commissioners (’48)
*
Trespass by Exceeding Scope of
Consent or Privilege?
*
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Applies Rest. I § 160
Professor McNichols
7
Defense of Property
Protect Property (by Force)
*
- Defending Existing
Possession
vs.
Regaining Possession
Real Property vs. Personal Property
* Self Help vs. Resort to Legal Remedy
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8
DEADLY MECHANICAL FORCE?
KATKO vs. BRINEY
When should a deadly “spring gun” be
legally permissible to protect property?”
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9
DEADLY MECHANICAL FORCE?
KATKO vs. BRINEY
Suppose Briney had posted a sign warning
intruders that he had set a “spring gun”
on the premises? Should that matter?
* Rest. II, § 85
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Professor McNichols
10
Glidden v. Szybiak (N.H. ’49)
TRESPASS TO CHATTELS
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11
Glidden v. Szybiak (N.H. ’49)
• Dog Bite Statute:
[Owner of dog = strictly liable for any damage
to a person or his property done by his dog]:
* “ unless the damage was occasioned while
[the person injured] was engaged in the
COMMISSION OF A TRESPASS OR OTHER TORT”
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12
Trespass to Chattels
Rest. 2d §218
Intent? - Intermeddle with Chattel
Result?
Impair
Chattel’s
-
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Condition
Quality
Value
or
Deprive Use for Substantial Time or
Cause Harm to Possessor’s Legally
Protected Interests
Professor McNichols
13
CompuServe v.Cyber Promotions(’97)
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14
Conversion
Intent? - Exercise Dominion or Control Over Chattel
Result? - Serious Interference With Right to Control
- - - - - - - - - - - - - - - - - - - - - - - - - - - Justice Require Pay Full Value?
YOU DID IT
YOU BOUGHT IT!
BALANCE FACTORS
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15
Conversion
Rest.2d §222A
Balance Factors:
1.
2.
3.
4.
Dominion & Control - Extent & Duration
Intent
Good Faith
Interference with Right to Control –
Extent & Duration
5. Harm to Chattel
6. Inconvenience & Expense
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16
Recovery of Property
Privilege: Recapture Possession of Personal
Property (Chattel)
*
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Limits?
Professor McNichols
17
Hodgedon vs. Hubbard (VT. 1846)
PRIVILEGE TO USE FORCE TO
RECAPTURE POSSESSION OF CHATTEL
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18
Recovery of Property
Bonkowski vs. Arlens (Mich. 1968)
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19
Recovery of Property
“Shopkeeper’s Privilege”
z
z
To detain for a reasonable investigation.
If there is a reasonable belief that the person
has taken chattel unlawfully.
Bonkowski: Extends privilege to immediate
vicinity of premises.
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20
Necessity
Plaintiff
Defendant
Reasonably Apparent Threat
vs.
Self Defense
Plaintiff
Defendant
Reasonably Apparent Threat
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21
Necessity
Public - Complete Privilege
(Threat to community or substantial part of
community)
vs.
Private - Incomplete Privilege
(Threat to private interests)
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22
Public Necessity
Surocco vs. Geary (CA. 1853)
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23
Private Necessity – Incomplete Privilege
Vincent vs. Lake Erie Transportation Co. (MN ’10)
10/11/2006
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24
Newgarth Statutes §12A
“Whoever willfully takes the life of
another shall be punished by death.”
Held:
Guilty:
Not Guilty:
Not Decide:
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Conviction Affirmed (2/2)
Truepenny & Keen
Foster & Handy
Tatting
Professor McNichols
25
Newgarth Statutes §12A
Held: Guilty: Conviction Affirmed
Truepenny:
The Law = Clear.
Clemency= the Solution
(To mitigate Rigor of Law.)
Keen:
Legislature = Supreme
Judges must enforce the law.
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26
Newgarth Statutes §12A
Not Guilty:
Foster: 1. No Jurisdiction: Law does not apply
in a “State of Nature”).
2. Innocent - given the purpose of the
law. (The Law Incorporates Justice).
Handy:
10/11/2006
Be Realistic in Judging
- Public Favors Acquittal
- The Executive will not pardon.
Professor McNichols
27
Chapter IV
Negligence
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28
Prima Facie Case Negligence (PFC)
Prima Facie Case - Negligence (PFC)
Duty
+
Breach
+
Legal Cause
+
Damage
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(“Negligence”)
(Proximate Cause)
* Cause in Fact
* Limitations on Liability
Professor McNichols
29
NEGLIGENCE
=
UNREASONABLE RISK
(under all relevant circumstances)
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30
UNREASONABLE RISK?
FORESEABILITY OF RISK TO OTHERS
(= NECESSARY - BUT NOT - SUFFICIENT)
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31
UNREASONABLE RISK?
FORESEEABILITY OF RISK
*
Degree of Foreseeability
*
Gravity of Harm
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32
Restatement 2d §291
Negligence = Unreasonable Risk
Foreseeability
RISK
Gravity
vs.
Burden
UTILITY
Benefit
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33
Lubitz vs. Wells (1955)
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34
Lubitz vs. Wells (1955)
1.
2.
3.
Complaint =
Defendant (father)
Knew club on ground in backyard +
Knew children would play with it
+
Knew or should have known
negligent use by children would cause
injury to a child
+
4.
Neglected to REMOVE or WARN
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35
Lubitz vs. Wells (1955)
Complaint = the father
2. Knew children would [might?] play with it
+
Knew or should have known [foreseen] that the
children might play with it in a dangerous manner
+
3. Knew or should have known that negligence use by
children would [might] cause injury to a child
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36
NEGLIGENCE
Blyth v. Birmingham Water. (1856)
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37
Blyth v. Birmingham Water. (1856)
Issue: Sufficient evidence for JQ on negligence?
Held: No. There was no evidence to prove D’s negligence.
Rationale: D would be negligent if it did not act to protect
against the frosts that a reasonable person should have
guarded against. But those would be the frosts of
average temperatures in ordinary years, not this extreme
frost.
The result here was an “accident” (i.e. a contingency
against which no reasonable man can provide).
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38
Blyth vs. Birmingham (1856)
Act:
Omission:
10/11/2006
NEGLIGENCE =
Doing what a prudent &
reasonable person would not
do.
or
NOT doing what prudent &
reasonable person would do.
Professor McNichols
39
Blyth vs. Birmingham (1856)
“Accident” =
Contingency Against
Which a Reasonable Person
Would not Provide
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40
Brown vs Kendall – An “Accident”
(“Inevitable Accident”)
*
Recall that in Brown vs. Kendall (the
stick swinging case) the court referred to
an “inevitable accident” as:
•
one that could not be avoided
•
by using ordinary care
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41
NEGLIGENCE
Gulf Refining v. Williams (’38)
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42
Gulf Refining vs. Williams
FORESEEABLE?
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43
Restatement 2d §291
Negligence = Unreasonable Risk
Foreseeability
RISK
Gravity
vs.
Burden
UTILITY
Benefit
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44
NEGLIGENCE
Chicago B&Q R. v. Krayenbuhl (’02)
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45
NEGLIGENCE
Davison v. Snohomish Cnty. (’28)
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46
Rest. II §295 (1965)(CB p. 142)
Unreasonableness – How Determined?
NEGLIGENCE = RISK outweighs UTILITY
§ 293 Magnitude of Risk– Balance Factors:
* Social Value - of the Interests
Endangered
* Extent of Chance - of Invading
Interests of Others (in Class of PL’s)
* Extent of Likely Harm
* Number of Persons Likely to be
Harmed
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47
Rest. II §295 (1965)
Unreasonableness – How Determined?
NEGLIGENCE = RISK outweighs UTILITY
* § 292 Utility = Balance Factors:
* Social Value - of (D’s) Interests/Conduct
* Chance of Advancing (D’s) Interests by the
Particular Conduct
* Chance of Advancing (D’s) Interests by less
Dangerous Conduct.
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48
NEGLIGENCE
U.S. v. Carroll Towing Co. (’47)
10/11/2006
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49
U.S. vs. Carrol Towing
If
(P X L
10/11/2006
>
B = Negligence)
Professor McNichols
50
U.S. vs. Carrol Towing
(P X L
>
B = Negligence)
[In Posner’s terms]:
Benefit in (Accident Prevention)
vs.
Cost of Safety
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51
Posner - “A Theory of Negligence”
“Orthodox View” - of Negligence
(View of “reformers” -Seeking to Expand Strict Liability)
3 points:
1. Negl. Standard = subsidy (of expanding industry)
2 . Primary Purpose = Compensation (of Tort Liability)
3. “Negligence” = [outdated] Moral Concept)
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52
Economic Meaning of Negligence
L. Hand was perhaps unwittingly setting out an “Economic
Meaning of Negligence” :
Discounting (multiplying) the Cost of an Accident
by its probability yields a measure of
Economic Benefit
to be anticipated from incurring the
Costs Necessary to Prevent the Accident
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53
“Economic Meaning”
If Risk
>
Benefits of
Accident
Prevention
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Utility = Negligence
Cost of
>
Accident
Prevention
Professor McNichols
54
Fault System Justification?
COMPARE
Holmes:
Reasonable Behavior
(Conformity to Community Norms)
Posner:
Rational Behavior
(Cost/Benefit Efficiency)
Fairness
10/11/2006
vs.
Professor McNichols
Efficiency
55
Abraham (p. 63) – Posner’s Economic
Theory of Negligence
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56
Kelman - Ethical Critique of
Cost/Benefit Analysis
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57
Sources of Ethical Principles/Rules?
Ethical Theories
Utilitarian
10/11/2006
Kantian
Professor McNichols
Natural Law
58
Standard? =
Reasonable Person
Under “Same or Similar Circumstances”
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59
Vaughan v. Menlove (1837)
NEGLIGENCE STANDARD
Subjective v. Objective?
10/11/2006
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60
Delair v. McAdoo (PA ’36)
Reasonable Person
knows or should know
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61
Delair v. McAdoo (PA ’36)
Distinguish:
•
•
Knowledge: tire worn to thread = “Fact”
vs.
Judgment: too dangerous = “Opinion”
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62
Delair v. McAdoo (PA ’36)
Need for Expert Testimony?
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63
Trimarco v. Klein (NY ‘82)
CUSTOM
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64
Custom
Relevant?
Conclusive?
1.
CONFORMITY TO CUSTOM
( = Non-Negligence)
vs.
2. NON-CONFORMITY TO CUSTOM
( = Negligence)
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65
Cordas vs. Peerless Trans. (NY City Ct ’41)
EMERGENCY
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66
Roberts vs. State of La. (LA ’81)
REASONABLE PERSON
PHYSICAL DISABILITIES
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67
Robinson vs. Lindsay (WA ’79)
STANDARD
CHILDREN vs. ADULTS
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68
Children’s Standard
Rest 2d §283A
“the standard of conduct . . . is that
of a reasonable person of like age,
intelligence and experience under like
circumstances.”
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69
Exception to Children’s Standard
=
Adult Activity
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70
Breunig v. Amer. Fam. Ins. (WI ’70)
REASONABLE PERSON
MENTAL DISABILITIES
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71
MENTAL DISABILITY
General Rule:
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72
Breunig v. Amer. Fam. Ins. (WI ’70)
10/11/2006
73
MENTAL DISABILITY
Rationale for General Rule (Bruenig)
* As between two innocent persons
the one who caused loss ought
bear it.
* Induce guardians to control
* Fear of false claims of insanity
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74
MENTAL DISABILITY
Rest. 3rd Gen. Prin. (TD #1): Sec. 11
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75
Ch. 4(B) STANDARD FOR
PROFESSIONALS
CONFORM TO STANDARDS OF:
• PROFESSION
•
BUSINESS
•
TRADE
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76
STANDARD FOR PROFESSIONALS
Heath vs. Swift Wings (N.C. 1979)
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77
Heath vs. Swift Wings (N.C. 1979)
Jury Instruction:
“Negligence is. . . the failure to exercise
tha degree of . . . caution which an ordinary
prudent pilot, having the same training and
experience as Fred Heath, would have used
in the same or similar circumstances.
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78
STANDARD FOR PROFESSIONALS
ATTORNEYS
Hodges vs. Carter (N.C. 1954)
10/11/2006
79
Professional Negligence (Medical)
Standard = Conform to Custom (Med. Practice)
Accepted
Medical
Practice
Locality Rules vs.
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National Standard
Professor McNichols
80
LOCALITY RULES
LOCALITY RULES =
Same Locality
vs.
Same or Similar Locality
vs.
National Standard
(76 O.S. § 20.1)
(Expert = Qualified vs. Standard of Care)
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81
Standard? =
Reasonable Person
Reasonably Prudent Physician
Under “Same or Similar Circumstances”
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82
PROF. STANDARD - MEDICAL
Boyce vs. Brown (AZ 1938)
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83
PROF. STANDARD - MEDICAL
Morrison vs. McNamara (D.C. 1979)
10/11/2006
84
LOCALITY RULES
LOCALITY RULES =
Same Locality
vs.
Same or Similar Locality
vs.
National Standard
(76 O.S. § 20.1)
(Expert = Qualified vs. Standard of Care)
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85
Standard of Care
76 O.S. § 20.1
“The Standard of Care Required
of Those [in The Healing Arts]
Shall be Measured by
NATIONAL STANDARDS”
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86
Informed Consent
Informed Consent
Battery
vs
Negligence
Negligence
Professional
Standard
10/11/2006
vs.
Professor McNichols
Reasonableness
Standard
(Lay Oriented)87
Informed Consent - Limits
Courts Are About Evenly Split
* Standard = Professional Standard
vs.
* Standard = Reasonableness (Lay Oriented)
* “ Material Information”
(eg. D.C., Cal., Ok., Wisc.)
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88
Informed Consent - Oklahoma
Scott vs. Bradford (OK 1979)
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89
Canterbury vs. Spence
464 F.2d 772 (DC 1972)
Duty to Disclose = Objective
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90
Informed Consent - Oklahoma
Masquat vs. Maguire (OK ‘81)
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91
Informed Consent - Oklahoma
Smith vs. Reisig (OK ‘84)
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92
Possible Extensions of Doctrine
Beyond Medical Information?
Moore vs. Regents (Cal. 1990)
* Conflict of Interests Information
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93
Informed Consent – Oklahoma
OKLA.= Disclose “Material Information”
See: McNichols, “Informed Consent in
a “Material Information” Jurisdiction,
What Does the Future Portend?, 48
Okla. Law Review (1995)
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94
Ch.IV(5) Negligence: Rules of Law
Pokora v. Wabash Ry. Co. (USSC ’34)
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95
Rules of Law
Setting the Standard
CUSTOM
COURT
Jury
Sub-Group
Trial Court
LEGISLATURE
(Fixed Rule:
Violation
=
Medical
Profession
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App. Ct.
Professor McNichols
Negligence?)
96
Standard of Care
Duty: = avoid
“Negligence”
General Standard
Particular Standard
(Reasonable Person
in “Circumstances”]
(Breach of Duty)
This Conduct =
Unreasonable.
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97
“Rules of Law”
Tension
Fixed Rule
vs.
Flexibility
(Justice)
Predictability
(Justice)
10/11/2006
General Standard
(Particular Facts)
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98
Rules of Law
TENSION
Predictability
vs. Flexibility
(Holmes)
Justice
(citizens need to
know what law
requires)
10/11/2006
(Cardozo)
Justice
(in the particular
circumstances)
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99
Rules of Law
TENSION – Setting the Particular Standard
Court’s Role vs. Jury’s Role
(Holmes)
(Cardozo)
fixed rules
case by case adjudication
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100
Rules of Law
Pokora Case (U.S.S. Ct. 1934)
Issue:
Contributory Negligence?
Rule:
Held:
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101
Violation of Statute–The Problem
What is the relevance for TORT
PURPOSES that an actor’s
conduct is a violation of
CRIMINAL LAW?
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102
Violation of Statute
THE ANSWER:
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103
Violation of Statute (Negl. Per Se)
Osborne vs. McMasters (1889)
Violation of Statute – Theory
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104
Violation of Statute
Stachniewicz vs. Mar-Cam
Violation of Statute or Regulation ( =
negligence as a matter of law) if it is:
APPROPRIATE AS STANDARD
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105
Stachniewicz vs Mar-Cam
Statute: “No person shall . . . make available
(alcohol) to a person visibly
intoxicated”
Regulation: “No licensee shall permit . . . any
visibly intoxicated person to remain
upon his licensed premises”
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106
Stachniewicz vs Mar-Cam
Notes After Case
N. 2 What if an employee of the drinking
establishment had been injured in the melee?
* What if the plaintiff had been injured when an
intoxicated patron stumbled and fell on him?
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107
Violation of Statute
(Negligence Per Se)
Analysis
z
z
z
z
z
z
Type?
Appropriate as Standard?
Violation?
Excuse?
Procedural Effect?
Other issues?
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108
Violation of Statute = Standard?
(Legislation - Regulation)
Type?
Statute, Ordinance, Regulation
Appropriate?
(as Standard)
Factors: - person w/in class protected?
- harm/hazard w/in class protected?
- other?
Statute Violated?
Excuse?
Any available?
( strict liability)
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Type? e.g.
- emergency
- compliance = more dangerous
- reasonable attempt to comply
Professor McNichols
109
Violation of Statute = Standard?
(Legislation - Regulation)
Procedural Effect?
z Conclusive Evidence
z Rebuttable Presumption
z Some Evidence of Negligence
Other Issues?
z Causation
z Defense
z Contributory Negligence
z Assumed Risk
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110
MARTIN vs. HERZOG (NY ‘)
CONTRIBUTORY NEGL – Negl. Per Se?
10/11/2006
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111
Prima Facie Evidence?
Meanings?
z
z
z
Sufficient to Get by Directed Verdict
Inference (“Permissible ”)
Constitutes Proof
z
Presumption (Would Support Directed
Verdict for Plaintiff).
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112
Procedural Effect?
z
Conclusive Evidence (Negligence per se)
z
Rebuttable Presumption
z
Some Evidence of Negligence
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113
Excuse?
z
z
Any Available? e.g.
z Strict Liability Statutes.
Type? e.g.
z Emergency.
z Compliance = More Dangerous.
z Reasonable Attempt to Comply.
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114
ZENI vs. ANDERSON (MI ’76)
EXCUSED VIOLATION?
10/11/2006
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115
Violation of Statute
Violation (conduct)
Proximate
Cause
(Connected)
Harm to Plaintiff
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116
NEY vs. YELLOW CAB CO. (Ill. ’54)
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117
PERRY vs S.N. (TX ’98)
STATUTE: Any person with “cause to
believe” [child abuse has occurred] must
report to police or to child welfare
authorities.
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118
Proof of Negligence
Court & Jury: Circumstantial Evidence
Fact
“A”
Fact
(Inference)
Length of Skid
“B”
Speed
Circumstantial evidence is evidence of one fact or set of facts from
which the existence of the fact to be determined can be inferred
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119
KEY TERMS - DEFINED
A. Burden of Proof
(Persuasion)
vs.
Burden of Going
Forward with Evidence
B. Strength of Evidence
•
PRESUMPTION
•
PERMISSIBLE INFERENCE
•
PRIMA FACIE EVIDENCE
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120
Prima Facie Evidence?
Meanings?
z
z
z
Sufficient to Get by Directed Verdict
Inference (“Permissible ”)
Constitutes Proof
z
Presumption (Would Support Directed
Verdict for Plaintiff).
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121
Burden of Proof/Going Forward with Evidence
Burden of Proof
(Preponderance)
“JURY LAND”
DV for Pl
DV for D
DV for Def.
JQ
Permissible Inference
Presumption
Prima Facie Evidence
DV for Pl
Burden of Going
Forward With Evidence
10/11/2006
“More likely
than not”
50%
Professor McNichols
Burden of Going
Going Forward
Shifts to D
122
Prima Facie Evidence?
Meanings?
z
z
Sufficient to Get by Directed Verdict
* Inference ( = “Permissible ”)
Constitutes Proof
* Would Support Directed Verdict for Plaintiff
* Presumption
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123
Proof of Negligence
(A)
Court & Jury: Circumstantial Evidence
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124
Res Ipsa Loquitur
The thing speaks for itself
“Sed quid in
infernos dicet”
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125
Res Ipsa Loquitur
Basic Idea:
In certain kinds of accidents the facts
of the accident themselves support an
inference that it occurred because of
defendant’s negligence rather that
exclusively because of some other person
or cause.
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126
Res Ipsa Loquitur
*
Relation to Proof by Circumstantial Evidence:
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127
Res Ipsa Loquitur
1.
Someone
2.
Defendant = Negligent
10/11/2006
=
Negligent
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Res Ipsa Loquitur :
Traditional RIL Elements
The Circumstantial Evidence Adequately Proves:
1. The Event = does not usually occur unless
SOMEONE = NEGLIGENT.
2. Defendant had exclusive control of the
instrumentality that caused plaintiff’s injury.
3. Plaintiff’s conduct was not a cause.
(Prosser & Keeton Hornbook 5th edit, p. 244)
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129
Res Ipsa Loquitur
Byrne vs. Boadle (Ct. Exchequer 1863)
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130
Res Ipsa Loquitur
McDOUGALD vs. PERRY (FL 1998)
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131
Res Ipsa Loquitur
LARSON vs. St. FRANCIS HOTEL (CA App. ’48)
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132
Larson vs. St. Francis Ht. (CA ’48)
Problem: Multiple Control of Instrumentality
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133
Rep Ipsa - Rest. 2d 328D
It may be inferred . . . that plaintiff’s harm = caused
by defendant’s negligence when:
1.
2.
3.
Event = not ordinarily occur without negligence.
Other responsible causes (including conduct of
plaintiff) = sufficiently eliminated by evidence.
The indicated negligence = is within scope of
defendant’s duty to plaintiff.
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REST. 3RD Torts: Gen. Principles
(Tent. Draft #1)(2/28/01) – § 17
RES IPSA LOQUITUR
“It may be inferred that the defendant has been
negligent when the accident causing the
plaintiff’s physical harm is”
*
a type of accident that ordinarily happens
*
because of the negligence of the class of actors of
which the defendant is the relevant member
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135
Rep Ipsa Loquitur
Traditional RIL Elements:
Circumstantial Evidence Adequately Proves:
1.
2.
3.
Event = not usually occurs unless someone
= negligent.
Defendant had exclusive control of the
instrumentality that caused Plaintiff’s injury.
Plaintiff’s conduct not a cause.
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136
Res Ipsa Loquitur
SULLIVAN vs. CRABTREE (TN ’53)
Procedural Effect of RIL?
(weight to be given the inference)
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137
Burden of Proof/Going Forward with Evidence
Burden of Proof
(Preponderance)
“JURY LAND”
DV for Pl
DV for D
DV for Def.
JQ
Permissible Inference
Presumption
Prima Facie Evidence
DV for Pl
Burden of Going
Forward With Evidence
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“More likely
than not”
50%
Professor McNichols
Burden of Going
Going Forward
Shifts to D
138
Res Ipsa - Procedural Effect/
1.
Permissible Inference.
2.
Rebuttable Presumption
3.
Shifts Burden of Proof
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139
RIL in Medical Cases?
Rare Event = Negligence?
(Inherent Risk)
“Complication”
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140
Res Ipsa Loquitur
YBARRA vs. SPANGARD (CA ’44)
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141
RIL (Medical)
(76 Okla. Stat. §21)(McN. Supp.
p. 48)
A Presumption Arises : if the Foundation Facts
Establish:
1.
2.
3.
Plaintiff sustained an injury
Such injury = proximately caused by an
instrumentality within the exclusive control
of defendant or defendants
Such injury does not ordinarily occur
(without negligence by) the defendant.
* Discretion of court = to require expert
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testimony 142