torts - St. Thomas More

Torts: Professor Kim (Fall ’07)
Intentional Torts
a) Act
i) Definition
(1) Voluntary contraction of muscles
(2) External manifestation of actor’s will (restatement)
ii) Scope
(1) Non-action is not enough to establish an intentional tort
(2) Convulsions or other involuntary muscle spasms are not acts
b) Intent
i) Definition (Restatement)
(1) Purpose of producing the consequence
(2) Knowing the consequence is substantially certain to result
ii) Scope
(1) Transfer Intent – intent to commit a tort against A can transfer if B is the one who gets injured from
the tort because there is still intent to do the act.
(2) Tortfeasor is held liable for unintended consequences of an intentional tort.
(a) E.g. Pushing someone and them falling and breaking their elbow – there is act of pushing and
intent to push, therefore you are responsible for the consequence (damages from broken elbow)
(b) Thin-skulled Plaintiff Rule – Although you do not know about the plaintiff having a thin skull, you
are responsible for the injury caused by your negligent tort.
a) Assault
i) Elements
(1) Intent - Intent to cause to another person or 3rd person:
(a) Harmful or offensive contact (Attempted but incomplete battery)
(b) Or imminent apprehension of such contact (Threatened battery)
(2) Act - Actually causing imminent apprehension in that other person or 3rd person
ii) Scope
(1) Conditional threats do not possess the requisite imminence (e.g. if you run, I’ll hit you)
(a) Policy: recipients of mere threats should toughen up; it would flood the courts with litigations
based on mere threats; in terms of evidence, it would be a case of he said, she said; protection of
speech, punishing someone for speech is wrong
(2) However, if someone is making a conditional threat while holding a hammer up, it can be
considered enough to cause imminent apprehension
b) Offensive Battery
i) Elements
(1) Intent - Intent to cause to another person or 3rd person:
(a) Harmful or offensive contact
(b) Or imminent apprehension of such contact
(2) Act - Offensive contact results to the person either directly or indirectly
ii) Scope
(1) Offensive contact (a)– bodily contact that offends a reasonable sense of personal dignity
(a) The reasonableness standard bars people with unusual sensitivity of personal dignity to file
successful claims (Wishnatsky – closing the door on the paralegal, he was not considered to have a reasonable
sense of personal dignity).
(2) Offensive contact (b) – a contact that is unwarranted by the social usages prevalent at the time and
place at which it is inflicted (social usage standard)
Torts: Professor Kim (Fall ’07)
(a) Policy reasons – in order to prevent suits filed for every day conduct; flooding of the courts
(b) E.g. tapping someone on the shoulder to say hello would not be considered battery because it is
a social custom of greeting people.
(3) Extension of Body Rule – offensive contact may be established through touching of something the
injured party is holding, which is so attached that it can be considered a part of the person (Picard v.
Barry Pontiac – Touching the plaintiff’s camera was enough to constitute offensive contact)
c) Harmful Battery
i) Elements
(1) Intent - Intent to cause to another person or 3rd person:
(a) Harmful or offensive contact
(b) Or imminent apprehension of such contact
(2) Act - Harmful contact results to the person either directly or indirectly
ii) Scope
(1) Along with intent, if the actions injures the other person, there is a prima facie claim for battery
d) False Imprisonment
i) Elements
(1) Intent - Words or acts by defendant intended to confine plaintiff
(2) Act - Actual confinement
(3) Subjective Awareness - Awareness by plaintiff that he is being confined or plaintiff is harmed
ii) Scope
(1) Actual confinement – doesn’t require physical force can be
(a) Actual or apparent physical barriers
(b) Overpowering physical force or by submission to physical force
(c) Threats of physical force
(d) Other duress (economic duress, etc.)
(e) Asserted legal authority (“if you leave, I know a judge that will put you away for life”)
(2) Other aspects going into confinement (Winchells Donuts case – she voluntarily stayed to clear her name and
although the door was locked behind her, they would have let her go if she asked)
(a) Present threat – future threats are not enough
(b) Moral pressure is not enough (I need to clear my name! is not enough)
(c) Without consent
(d) Involuntary
(3) Shopkeeper’s Privilege – Affirmative defense of false imprisonment – Arises in context of shoplifters or
(a) Needs reasonable grounds to believe that the accused has committed retail theft and may only
apprehend for a reasonable amount of time.
e) Intentional Infliction of Emotional Distress (IIED)
i) Elements
(1) Act - Engages in extreme and outrageous conduct
(2) Intent - Intentionally (or recklessly)
(3) Subjective Injury - Causes severe emotional distress to plaintiff
ii) Scope (Womack – being accused of child molestation just by being at the wrong place at the wrong time)
(1) Extreme and outrageous conduct – offends against generally accepted standards of decency and
(2) Severe emotional distress – needs to be proof beyond trifling, mere upset, or hurt feelings. E.g. as a
result of the extreme and outrageous conduct, can’t sleep, needs therapy, depression, etc.
(3) Recklessness standard to intent – Satisfies intent merely by intending to do the action; because the
acts are extreme and outrageous, the actor knew or should have known that it would cause
emotional distress.
Torts: Professor Kim (Fall ’07)
(4) Title VII – harassment in the workplace (similar to IIED)
(a) Law trying to protect against discrimination in the workplace based on race, gender, sexual
orientation, etc.
(b) Benefits of having a statutory scheme – clear cut rule
(c) Don’t need to prove severe emotional distress or outrageous conduct, only need to prove hostile
working environment
a) Consent
i) Types
(1) Express – objective manifestation of actor’s desire to consent; doesn’t need to be by words, physical
expression is sufficient
(2) Implied – judicially-determined finding that a person consented to a particular invasion of their
interest; actions might not be clear but courts can deem that there is implied consent
ii) Scope
(1) Minority Rule – when parties engage in mutual combat, unless there is excessive force or malicious
intent to do serious injury, there is no civil liability; allows for general rule that consenting to a fight
relinquishes rights
(a) Hart v. Geysel (Illegal prize fighting leading to death case) – a boxer consenting to participating in even an illegal
act of prize fighting can be implied consent to relinquish his rights to sue. (minority rule doesn’t fully apply because
there is no anger)
(b) Policy – no one should profit from illegal activities
(c) Exception – Using excessive force in a football game (punching another player during timeout)
would be considered excessive force outside the scope of the consent, thus making him civilly
(2) Majority Rule – when parties engage in mutual combat in anger, each is civilly liable to the other for
injuries sustained; voluntary engagement in such actions is not a defense
(3) Example of implied consent – woman waiting in line for a vaccination implies that she gives consent
for the doctor to stick her with a needle.
b) Self Defense
i) Elements
(1) (D) acted honestly in using force
(2) (D)’s fears were reasonable under the circumstances
(3) (D) used reasonable means
ii) Scope
(1) Even if actor is mistaken in his belief that self defense is necessary and the mistake is reasonable,
there is still a successful affirmative defense (Courvoisier case – man shoots cop thinking he was a rioter)
(2) There needs to be proportionality in the means used for self defense – you cannot shoot someone with
a gun when they only trying to hit you.
(3) Someone threatens to beat you up and approaches you. You can hit them in self defense. However
if he gets up it is questionable if you can or not again
(a) Majority – there is a chance you can be liable because he the threat isn’t apparent anymore
(b) Minority – you would not be liable because he can still be trying to attack you.
c) Protection of Property
i) Rule
(1) Cannot use force calculated to cause death or serious bodily injury unless there is a threat to
personal safety to justify self-defense
ii) Scope
(1) Spring guns to protect your property is not justified unless there is a threat to personal safety (which
is not likely going to happen because spring guns tend not to differentiate) – Katko case
Torts: Professor Kim (Fall ’07)
(2) Proportionality is an important factor when it comes to protection of property. Killing someone or
severely injuring them is not proportional to stealing from you.
d) Privilege of Necessity
i) Elements
(1) (D) must face a necessity
(2) Value of thing preserved must be greater than harm cause
ii) Scope
(1) There is an absolute and an incomplete defense – Determined by the disparity between the damages
incurred to the (P) and the thing that is saved by the (D). (Vincent case – boat owner reties boat to dock in
storm and causes damage to dock in order to save his boat)
(a) Damage to dock ~ $500, damage to boat ~ $10,000 – still not enough disparity to make it an
absolute defense; incomplete defense, (D) is not liable for the trespass, but still owes damages to
the (P)
(b) Public necessity argument – destroying one house in order to prevent a fire from spreading to other
houses on the block. Will lead to an absolute defense.
(2) Act of God – when the damage is caused strictly by a naturally occurring act (i.e. if the boat owner
didn’t re-tie the boat to the dock), the (D) is not liable to pay damages to the (P).
(3) Public policy – if dock owner knew that he would not be compensated, he would try to cut the
(4) Moralistic argument – if a starving man steals bread to prevent from starving to death, when he is
able to pay at a later time, he should compensate for the bread that was stolen.
Vicarious Liability
a) Doctrine of Respondeat Superior
i) Rule – employers are vicariously liable for the torts committed by employees while acting within the
scope of their employment
ii) Scope
(1) Determining scope of employment - elements:
(a) Acting on the job - Generally what he is hired to perform
(b) Time/Place - Occurs generally within hours and spatial boundaries of employment
(c) Serve the employer’s interest – motivated for the purpose of serving the employer’s interest
(2) Christenson v. Swenson – it can be debatable that an employee going to get lunch is within the scope of employment
and should not be granted summary judgment
(3) Policy – preventing future injuries, assuring compensation to victims, spreading the losses caused by
enterprise equitably.
a) Argument against liability
i) An employer does not have sufficient control over the conduct and actions of an independent
ii) Not as highly supervised as regular employees
b) Apparent Agency Doctrine – for liability to independent contractors (majority)
i) Apparent Authority – authority which a principal knowingly tolerates or permits, or which the principal by
its actions or words holds the agent out as possessing
ii) Elements
(1) Representation – by principal that agent has authority
(2) Reliance – by third party upon the representation
(3) Change in position – by third party in reliance on the representation
iii) Roessler v. Novak - (P) sues hospital for complications due to the actions of an independent contractor
Torts: Professor Kim (Fall ’07)
iv) Inherent is the idea of reasonable belief that the IC is an employee of the principal.
v) Possible defense – You should have exercised due diligence to figure out if the person was an IC or an
c) Nondelegable Duty Doctrine – for liability to independent contractors (concurrence)
i) Rule – as a general rule, hospitals should be vicariously liable for the activities within a hospital where
the patient cannot and does not realistically have the ability to shop on the open market for another
ii) If the work entails a peculiar risk and an independent contractor fails to take appropriate precaution in
light of the risk, the employer should be liable.
iii) Policy – Clearer rule, predictability  less litigations, efficiency of legal action, gives incentives to
employers to avoid injuries caused by IC’s
Negligent Torts
Conduct which falls below the standard established by law for the protection of others under unreasonable risk of
harm. Prima facie elements: duty and breach of duty.
a) General Duty Intro
i) Traditional View of Duty (pre-1960s) – duties exist only where there is privity between the parties
ii) Modern General Duty – all persons have a general duty to act with reasonable care to everyone in
society not to create unreasonable risk of harm.
iii) Existence of duty is a question of law; judges determine.
iv) Misfeasance v. Nonfeasance
(1) Misfeasance – actively causing harm to another; most cases of negligence; when the conduct of the
(D) causes injury to another person
(2) Nonfeasance – passively allowing harm to befall another; few cases of negligence; liability is only
imposed when there are exceptions
b) Duty to rescue
i) There is generally no duty to rescue anybody.
(1) Policy – individual autonomy; you do not need to risk yourself in order to save anyone else; even if
you do not need to put yourself at risk, it is difficult to bring suits against every person that is within
the proximity of an injury (possible floodgates argument)
ii) Exception – When there is a special relationship
(1) Types of special relationships that bring about duty to rescue:
(a) Common carriers, innkeepers, possessors of land open to public
(b) Persons who have custody of another person under circumstances in which that other person is
deprived of normal opportunities of self-protection.
(c) Social companions – Farwell case – friends try to holla at girls and one of them gets beat up by the girls’
friends; the (P) leaves the friend in his car in front of his grandparents’ house and he eventually dies from his
wounds (would have survived had be received medical attention).
(i) Normally, courts will follow the Harper case and confine special relationships to where the
(D) had special control of the situation in which the accident occurred.
(ii) This court extends the idea of special relationship to companions on a social venture
because implicit to that relationship is the understanding that assistance will be rendered if
there were to be any trouble
(2) Harper v. Herman – the owner of the boat did not have a special relationship to the uninvited guest so he had no duty
to aid when the guest jumped into shallow water; fact that an actor realizes of should realize that action on his part is
necessary for another’s aid or protection does not of itself impose upon him a duty to take action; nonfeasance w/o
special relationship.
iii) Exception - Commenced rescue
Torts: Professor Kim (Fall ’07)
(1) Rule from 2nd Restatement: One who, being under no duty to do so, takes charge of another who is
helpless is subject to liability caused by:
(a) The failure of the actor to exercise reasonable care to secure the safety of the other while in the
actor’s charge (Pro-Plaintiff)
(b) The actor’s discontinuing his aid or protection, if by doing so he leave the other in a worse
position than when the actor took charge of him. (Pro-Defendant)
(2) 3rd restatement requires that an actor exercise reasonable care in discontinuing aid for someone who
reasonably appears to be in imminent peril.
(a) There can be argument as to what constitutes reasonable care in light of the peril.
(b) Hypo – Maybe Farwell driving the car to the grandparents’ house and allowing him to be found
by the grandparents can constitute reasonable care; court didn’t think so. But where do you
draw the line? Does he need to take him to the hospital himself? To the police? Informing
iv) Exception – Non-negligent injury
(1) If actor knows or has reason to know that by his conduct, whether tortious or innocent, he has
caused such bodily harm to another as to make him helpless and in danger of further harm, actor
has a duty to exercise reasonable care to prevent further harm.
(2) Hypo – beat someone up and they lie unconscious in the middle of the street; you have a duty to
prevent them from further harm, so if you do not move them out of the street, you are liable if they
get run over by a car.
v) Exception – Non-negligent creation of risk
(1) An actor who subsequently realizes or should have realized that his actions create an unreasonable
risk of causing physical harm to another has a duty to exercise due care to prevent the risk form
occurring even if at the time there was no reason to believe that the act would create risk.
(2) Hypo – chopping down a tree and leaving on the middle of the road, leaving and then later realizing
that people might run into it when it gets dark; you have a duty to return and remove the tree from
the road.
c) Duty to protect or warn 3rd parties
i) Letters of recommendations (duty through malfeasance)
(1) Writers of LORs owe to third parties a duty not to misrepresent the facts in describing the
qualifications and character of a former employee, if making these representations would create a
substantial or foreseeable physical injury to third persons (Randy W. v. Muroc Joint USD - (D)
recommended a previous employee with complaints of sexual misconduct to another school district which led to the
victim being sexually assaulted by the employee)
(a) Elements
(i) Misrepresentation in describing qualification and character
(ii) Creates substantial or foreseeable physical injury to 3rd person
(iii) Then there is a duty to 3rd person
(b) Scope
(i) Rowland foreseeability test
1. Foreseeability of harm to (P)
2. Degree of certainty that the (P) suffered injury
3. Closeness of connection between the (D)’s conduct and the injury suffered
a. Hypo – Kim writes a LOR for cheater, who ends up stealing in the workplace.
There is no connection between cheating and stealing. It wasn’t a foreseeable risk of
the particular injury.
4. Moral blame attached to the (D)’s conduct
5. The policy of preventing future harm
6. The extent of the burden to the (D) and consequences to the community of imposing a
7. The availability, cost, and prevalence of insurance
Torts: Professor Kim (Fall ’07)
(ii) Misfeasance v. Nonfeasance
1. Misfeasance - (D) made affirmative misrepresentations
2. Nonfeasance - (D) just omitted information about him.
3. An affirmative act of misrepresentation is required to impart duty in this circumstance.
No representation will not bring about liability.
4. In Randi W. the court found that the (D) made half truths in their LOR and therefore it
was an affirmative act of negligence (misfeasance)
(iii) If the (D) conducts himself or herself in a manner that aided a foreseeable harm, court is
going to come up with a reason to justify enforcing a duty.
1. Hypo – Please give us your opinion about X. If we don’t hear back from you in 2 weeks,
we will assume that everything is fine. You know that X has complaints against him of
sexual assault. – Your conduct has aided in the foreseeable harm and the court will find a
reason to assign duty to you.
(iv) Policy against finding duty in this case – it will prevent the free flow of information because
people will be nervous that they might find themselves in litigation because they made a
LOR for someone.
1. However, the concern of the foreseeable risk outweighs this policy argument and
therefore duty will be found.
ii) Therapists duty to warn 3rd parties from their patients (duty through nonfeasance because of special
(1) Arguments against imposing special relationship to therapist/patient scenarios:
(a) Predictions of violence are unreliable – hard to differentiate between someone just talking and
someone actually planning something
(b) Inaccurate warning will harm patients – If it is that the patient is just talking and the therapist
warns the authorities, it can lead to the patient being unjustly treated
(c) Releasing such information violates the patient/doctor confidentiality
(2) Why the therapist/patient relationship is considered a special relationship (Tarasoff case – Therapist
failed to warn the victim after his patient confesses in trying to kill her):
(a) Evidence code:
(i) Normally there is a privilege in therapist/patient and courts honor the confidentiality in
terms of admitting evidence. However, this privilege does not exist when there are serious
risks of harm.
(b) Through precedent
(i) Duty of hospitals to control dangerous patients
(ii) Doctor’s duty to warn patient if patient’s condition or medication renders conduct like
driving dangerously
(iii) Doctor’s duty to warn family member of a patient with contagious diseases.
(3) Duty imposed:
(a) Therapist has a duty to warn when
(i) He determines or should have determined that a patient presents a serious danger of
violence to a foreseeable (identifiable) victim (Reasonable Professional Standard)
1. Hypo – “I’m going to kill a public official” poses problem of the victim being
2. Hypo – “I’m going to kill the president of the US” poses a problem of whether it poses a
serious danger or not. Therapist must use his professional standard.
(ii) Has a duty to exercise reasonable care to protect the intended victim (RPP standard)
(4) Hypo – There is no tort liability for doctors to warn 3rd parties about a patient diagnosed with aids.
This is because AIDs lacks imminence (as opposed to someone trying to murder someone) and the
stigma attached to AIDs.
(a) However, there is a duty to inform the patient.
(5) Hypo – Woman with Hepatitis C marries a man. Doctor did not have a duty to warn the husband
because he was not identified.
Torts: Professor Kim (Fall ’07)
(6) Hypo – Man talks to therapist about committing suicide and does it. Therapist does not have duty
to parents because it does not apply to self-inflicted harm and there was no threat to the 3rd party (i.e.
parents) – the therapist/patient special relationship invoked duty to warn 3rd parties of possible
dangers to them.
(7) Statute established creating a duty for therapists to warn victims and law enforcement agency.
d) A FAIR DEAL (Acronym for public policy goals for dealing establishing duty)
i) Allocation of Losses – potential for spreading losses (if the a store can spread losses more efficiently
than the clerk)
ii) Fairness – negligence should be fair, just, moral and ethical; accounts for social morals and values
iii) Deterrence – wants to deter injuries, criminal behavior and generally undesirable behaviot
iv) Economic considerations – Who should internalize the costs, who is the cheapest cost avoider,
consideration of insurance, if other compensation schemes are available
v) Administrative concerns of courts – what will be efficient for courts to adjudicate
vi) Legislative consideration – is there a statute, should courts stay away from making new law, should
changing certain laws be exclusively for legislatures?
e) Limited duty when there is a statute (legislative intent)
i) When the statute explicitly provides for a private right of action:
(1) Duty can be established to follow the statute
(2) Negligence per se
ii) When the statute does mention anything about a private right of action:
(1) Court must determine if a private right of action may be implied
(2) Determined through test:
(a) Whether (P) is one of the class for whose particular benefit the statute was enacted; (P) is the one
statute is trying to protect
(b) Whether recognition of a private right of action would promote the legislative purpose
(c) Whether creation of such a right would be consistent with the legislative scheme
(3) If all these conditions are met, there is an implied private right of action. If at least one of these
conditions is not met, there is no private right of action.
(4) Hypo – Uhr case – School didn’t do a scoliosis test as the statute provided and the child got a condition that could
have been prevented through early recognition.
(a) The statute was definitely meant to protect children
(b) Purpose was to promote public health and avoid costly hospitalization
(i) (P) claims it will promote the purpose by creating a risk of liability for failure to comply,
thereby encouraging the purpose
(c) It was found that giving a private right of action is not consistent with the legislative scheme
because they charged the commissioner of education to implement the statute and to punish the
schools by withholding public funding in case of noncompliance.
(i) In terms of whether a private right of action would also be consistent with the administrative
enforcement, they also ruled that it wasn’t because the statute provided immunity in the case
of misfeasance and it would be incongruous to provide immunity for nonfeasance.
(d) No private right of action was found in this case, therefore no negligence per se.
(5) Hypo – Vermont law mandates for duty to rescue. If this statute is not followed, it allows for $100
fine. There is no private right of action because it would not be consistent with the legislative
scheme because it sets aside the fine to be sufficient to punish noncompliance.
(6) Hypo – Statute to make it a duty to report child abuse – meets the test and private right of action is
f) Limited duty when the parties are not in contract (policy reasons)
i) Trend
Torts: Professor Kim (Fall ’07)
(1) Traditional common law – there as no duty unless there was privity
(2) Modern trend – While the absence of privity does not foreclose recognition of a duty, it is still the
responsibility of courts to limit the legal consequences of wrongs to a controllable degree and to
protect against crushing exposure to liability (policy reason)
(a) Policy plays an important role to fix the bounds of duty. Through public policy, the orbit of
duty might result in the exclusion of some who might otherwise have recovered for losses or
injuries if traditional tort principles had been applied.
ii) Restatement:
(1) An actor ordinarily has a duty to exercise reasonable care when the actor’s conduct creates a risk of
physical harm.
(2) In exceptional cases, when an articulated countervailing principle or policy warrants denying or limiting liability
in a particular class of casesm a court may decide that the (D) has no duty or that the ordinary duty
of reasonable care requires modification.
iii) If there is a contractual relationship:
(1) There is generally civil liability if someone gets injured from a breach of that contractual duty.
iv) If there is not contractual relationship
(1) Duty depends on whether or not there is public policy against imposing duty.
(a) Crushing liability – if imposing duty to those not in privity with the (D) would bring about
ruinous liability, duty will not be imposed.
(b) Boundless liability
v) Hypo – Strauss v. Belle Realty Co. – man sues electric company after he fell down a flight of stairs in his apartment
building during a blackout; no duty was imposed on the electric company because the blackout affected a
major part of the city and if they allowed one person (not in privity with the company) to sue the electric
company, it would open up the flood gates for litigations against the company which would have
crushing effects to the electric company (which provides a valuable service to society). Therefore, there
is no duty
vi) Hypo – Fan falls off and falls on nurse; nurse sues maintenance company – although there is no privity
between nurse/maint co, there can be duty because she is of a limited population that is definite and
identifiable. (cannot create a crushing liability argument because the injured population is limited to the
vii) Hypo – Pedestrian struck by a car driving out of a parking garage; ped sues garage. – there is no duty
because there is no duty between driver and garage because garage has no reasonable control over the
conduct of the driver. Would lead to boundless liability.
g) Limited duty of social hosts
i) Generally, there is no duty for social hosts to protect third parties from guests who drink and drive.
(1) Reynolds v. Hicks – kid gets drunk at a wedding and while he was driving home he got into a car accident. The
driver of the car sues the bride and groom for allowing the kid to drink at their wedding – Court found no duty on the
part of the bride and groom
(a) Statute: prohibits alcohol from minors within (even within social host circumstances)
(b) Hanson case – If minor is injured from alcohol intoxication, there is liability against the social
host for supplying the alcohol
(c) (P) is trying to say, however, that the duty should extend out to third parties injured by the drunk
(d) Commercial vendors generally have a duty to third parties (Dram Shop Laws), but social hosts
do not because:
(i) Commercial vendors are capable of handling the responsibilities of monitoring their guests’
alcohol consumption, while social hosts cannot.
(ii) Implications of social host liability is far more wide sweeping because most adults can be
social hosts and it is far more difficult for them to monitor their guests.
h) Duty for negligent entrustment
Torts: Professor Kim (Fall ’07)
i) General Rule – A (D) who supplies chattel, has a duty to not let it fall into the hands of another, whom
the (D) knows or should know, may use it in a manner involving unreasonable risk of physical harm to
himself/herself or 3rd persons.
ii) Vince v. Wilson – Aunt pays for car for nephew who is unlicensed and is a drunkard (aunt is aware of this and so is the
car dealer). Nephew gets into an accident and the injured party sues the nephew, aunt and the car dealer (negligent
iii) Scope
(1) Hypo – Father co-signs a car for her daughter who he knows is a habitual drunk. Gets into an
accident 3 years later – there is no duty because there are imminence issues.
(2) Hypo – Parents giving cars to teenage drivers who don’t have much experience driving – there is no
duty because of policy (floodgates)
(3) Hypo – Gun shop owner selling gun to someone; that person using it to injure someone – no duty
on gun shop owner because there are statutes against it (lobbying in action).
(4) Hypo – Leaving keys in the car by accident and a thief coming and driving off with your car; thief
hits someone – there is a chance that duty can be found – depends on foreseeability (where car was
parked, how long it was there, how safe the neighborhood is, etc)
i) Duty as a landowner or occupier
i) Traditional Common Law Duty
(1) Determine Status
(a) Invitees
(i) Business Visitors – enters land with permission (express or implied) for a purpose directly or
indirectly connected with possessor’s business
(ii) Public Invitee – enters land open to the public for a purpose for which the land is held open
to the public
(b) Licensee – enters land with permission, but not for a business purpose that serves
owner/occupier; includes social guests
(c) Trespassers – enters land without permission and whose presence is either unknown or objected
to if known.
(2) Duty that attaches to the status
(a) Invitees – Reasonable care to make safe or warn against both known dangers and those that
would be revealed by reasonable inspection
(b) Licensee – Duty to warn against known, non-obvious dangers
(c) Trespassers - No duty to protect or warn against dangers; only to avoid willful misconduct or
reckless disregard of safety
(3) Carter v. Kinney – man going to bible study slips on ice in front of the house; sues homeowner; duty to licensee
(a) There was no business purpose for the (P) to be at the (D)’s house
(b) The bible study was not open to the public; only open to interested church members
(c) Homeowner had no knowledge of the slippery conditions so there was no breach of duty.
(4) Hypo – Tupperware party – all the people there are invitees because Tupperware parties are for the
purposes of selling Tupperware.
(5) Scope
(a) Courts are divided as to whether landowners’ duties to invitees include open and obvious
(b) These duties are for dangerous conditions, but when it comes to activities that causes the injury,
the landowner owes a duty of reasonable care to both invitees and licensees
(c) Attractive Nuisance Doctrine (duty to child trespassers caused by an artificial condition upon the
(i) Landowner knows or has reason to know that children are likely to trespass
(ii) Landowner knows or had reason to know that the condition is one that involved an
unreasonable risk of death or serious bodily injury
Torts: Professor Kim (Fall ’07)
(iii) Children because of their youth don’t realize the danger
(iv) Burden of eliminating the danger is slight compared to risk to children
(v) Landowner fails to exercise reasonable care to eliminate the danger
ii) Modern View of Duty
(1) Gets rid of distinction between invitees and licensees
(a) Both are held to general duty – landowners are liable if the injury is foreseeable.
(b) However, the status categories are still relevant in that they determine foreseeability
(c) A person in possession of land owes a duty to use reasonable care in the maintenance of their
premises for the protection of lawful visitors
(i) Not for trespassers – not foreseeable that a trespasser will be there.
(d) Not retroactive – so landowners are not liable for people whom they were not liable for in the
(2) Heins v. Webster County – man slips and falls outside a hospital, man was supposed to be Santa Claus for
Christmas at the hospital and was there to talk; could be argued as an invitee or licensee, but court uses this case to
move away from the common law tradition.
(3) Policy arguments against removing distinctions
(a) Allows for predictability
(b) Stable standard for liability
(c) Landowners are less able to guard against risks
(d) Established system of loss allocation
(e) Exceptions take care of strict rules
(4) Policy arguments for removing distinctions
(a) Status should not be determinative – they are artificially created and should not determine
discretion in duty.
(b) Urban society, no longer feudal
(c) Creation of exceptions too complex and unpredictable producing confusion and conflict
iii) Duty of Landowners to Prevent Criminal Activities
(1) Landlord/Tenant
(a) Generally a duty is imposed on the landlord to prevent crimes from happening to tenants in
common areas (Kline v. 1500 Mass Ave.)
(i) Rationale
1. Landlords have more power to protect tenants on their property. Landlord has
possession of common area where even law enforcement cannot monitor
2. Urban violence in the area makes the prospect of a crime more foreseeable and the
landlord should take precautions to avoid injury to tenants.
(2) Storeowner/Customer (exemplified by Posecai v. Wal-Mart Stores – Woman mugged in Sams Club parking
(a) Majority Rule – Although business owners are not insurers of their patrons’ safety, they do have
a duty to implement reasonable measures to protect their patrons from criminal acts when those
acts are foreseeable
(b) Foreseeability – 4 tests
(i) Specific Harm – no duty to protect unless owner knows of the specific, imminent harm
about to happen to the patron
(ii) Prior, Similar Incidents – foreseeability established by evidence of previous crimes on or
near the premises
(iii) Totality of the Circumstances – takes into account nature, condition and location of the land,
as well as other relevant factual circumstances bearing on foreseeability
(iv) Balancing Approach – balances foreseeability of harm against the burden of imposing a duty
to protect against the criminal acts of 3rd persons
(c) Posecai adopts the balancing approach: i) is too restrictive, ii) leads to arbitrary results, iii) tends to
place a greater duty on business owners
Torts: Professor Kim (Fall ’07)
(d) Hypo – bank robber takes a hostage and tells the teller to open to bulletproof window; teller
doesn’t comply and shoots hostage. No duty on the bank to protect the hostage patron because
of policy reasons: ruling saying the teller should have complied will encourage hostage taking
with assured benefits.
j) Duty/Immunities of family member
i) Parental Immunity Rules
(1) WI Rule (Goller Standard) – No parental immunity except for two major exceptions:
(a) Negligent act involves exercise of parental authority
(b) Negligent act involves exercise of parental discretion of providing food, clothing, housing,
medical/dental services and other care.
(2) NY Rule – Complete immunity limited to cases of negligent supervision
(a) Based on concerns of cultural diversity and economic differences
(3) CA Rule – Reasonable parent standard – No parental immunity – Always goes to the jury to decide
while others are determined by judges.
ii) Broadbent Case – Child almost drowns because mother was doing something else; court adopts the CA rule of the
reasonable parent standard
iii) Hypo – Father doesn’t repair brakes for a week. Brakes fail and son is injured
(1) WI – Not an act involving parental authority or discretion so there is duty as a driver
(2) NY – Not negligent supervision, there is duty as a driver
(3) CA – Father has duty as a reasonable driver and reasonable parent
iv) Hypo – Mother hits child with leather belt for stealing and it’s not too severe but hurts
(1) WI – It is within the exercise of parental authority so immunity
(2) NY – Immunity
(3) CA – Reasonable parent standard and jury decides
v) Hypo – Parents saves money on food to buy a TV; children suffer malnutrition
(1) WI – Within exercise of parental discretion of food, so immunity
(2) NY – Food assumed to have to with supervision so immunity
(3) CA – Reasonable parent standard and jury decides – probably found negligent
vi) Hypo – Dad leaves mop in the middle of the hallway to answer the phone and daughter trips and breaks
her ankle
(1) WI – Within exercise of parental discretion (cleaning) – immunity
(2) NY – Immunity
(3) CA – Reasonable parent standard – doesn’t seem unreasonable but it’s for the jury to decide.
vii) Scope of Parental Immunity
(1) Fetal injuries – child born alive can sue 3rd party that caused damage while unborn.
(2) Religion and duty – Christian Science family; child ends up suffering from illness, court decides it
should be reasonable parents standard instead of reasonable Christian Science parents standard.
k) Duty/Immunities of government
i) Traditional Rule – Government has sovereign immunity derived from English law.
ii) Modern trend for municipalities (not considered sovereigns because they were chartered by states,
however, they have some governmental functions that are given immunity)
iii) Step 1 - Governmental functions (immune) v. Proprietary functions (not immune, negligence standard)
(1) Governmental – resource allocations that are discretionary and best left up to the legislature
(a) Policy - Courts don’t want juries to second guess the policy functions of the legislatures and
(b) Riss v. City of NY – girl gets lye thrown at her face after she asked for help by the police based on threats.
Courts ruled that this was a governmental function because this is a matter of lack of officers to respond to calls
regarding threats only. It is a matter or resource allocation, and courts should not be making decisions about how
government resources are to be allocated, legislature is in a better position to do that.
Torts: Professor Kim (Fall ’07)
(i) Requires a degree of predictability – how many people call the police based on threats, how
predictable the threat is of being carried through, how many officers should be on the force
based on the predictions of crime rates in the city. These are all questions that the legislature
has more resources to try to answer.
(ii) Policy reasons against finding for (P) – crushing liability (there can be boundless liability
from all the people that call in about threats that eventually get injured and it would prove to
be a fatal blow for the police department), flood gates (similar to previous), question of
whether jury should have the burden of making such decisions because they are not well
equipped to see from the government’s perpective.
(2) Proprietary – Normal government activities; municipal worker driving around, maintaining
roadwork, etc.
iv) Step 2 – Cuffy Factors in determining if there is a special relationship between police officer and injured
(1) Assumption of promise or action on the part of the injured party
(2) Actual knowledge of officer that inaction would create risk of harm
(a) Not merely should have known standard
(3) Direct contact between officer and injured party
(4) Justifiable reliance by the injured party on the promises from the officer.
v) Other instances where there is duty on the part of the officer to the injured party
(1) When there is an actual crime being committed – officer can’t just say “eh, someone else will take
care of it” when he sees a crime taking place
(2) When the police encourage people to come and report crimes and not help the person if there is a
threat to his/her safety – by encouraging people to come forward and face possible danger, there is
a duty for the police to protect the informant because they are benefiting from his/her information
and the party came forward relying on that protection; reneging on witness protection (reliance on
that led to duty)
(a) There is no crushing liability here because this is a very specific liability the police exposes
themselves to. No flood gates because it is very predictable and foreseeable that there might be
danger to the informant
vi) Step 3 – Look at the foreseeability of the injury. The more foreseeable it is, the more likely there will be
a duty imposed. Foreseeability is also important to prevent the flood gates policy concern; requiring
foreseeability limits the sort of claims that will be deemed valid.
7) BREACH – when judged from the perspective of a reasonably prudent person in the (D)’s position, the
(D) fails to act with reasonable care in creating an unreasonable risk of harm to another
a) Acting with reasonable care
i) Hand Formula – PL < B (reasonable care), PL > B (no reasonable care)
(1) P = probability of loss, L = possible loss, B = burden of taking precaution
(2) US v. Carroll Towing Co. – negligence because there was no one on the barge that broke loose from the tugboat and
caused damage.
(3) Additional factors going into balancing test – Foreseeability of harm, magnitude of harm, social
utility of (D)’s behavior, anything that impacts the cost-benefit analysis (when the balancing test is
too close to tell)
(4) Posner – the P, L and B and imply monetary numbers (economic analysis)
(a) Problem – cannot take human injuries or death into account
(5) Potential obstacles – difficult to always associate numbers to the letters; cannot always quantify these
b) Acting as a reasonably prudent person (RPP) under the circumstances
i) Definition – objective standard; a hypothetical person who exercises those qualities of attention,
knowledge, intelligence and judgment which society requires of its members for the protection of their
own interest and the interests of others.
Torts: Professor Kim (Fall ’07)
ii) Bethel v. NY City Transit – common carriers used to be classified to have to exercise the “highest standard of care” but as
times changed and common carriers became more and more regulated, it became unnecessary to put them to such a standard.
This case changed the standard to a RPP standard.
iii) Modified RPP standards:
(1) Physical Handicaps – E.g. Reasonably prudent blind person
(2) Children – E.g. Reasonably prudent 8 year old
(3) Exceptions:
(a) Mental deficiencies – no special treatment because they are very subjective and overly broad
(b) Children engaging in adult activities – no special treatment; held to RPP
(i) A potential victim will not be able to distinguish whether they are a child or an adult so
neither should the court
(ii) The child takes on the responsibility of the possible risks associated with the adult activity.
(c) People with a higher scale of knowledge – the standard should be raised.
a) In general
i) Judges are charged with answering questions of law, juries are charged with answering questions of facts.
ii) If a reasonably jury could disagree at all about the issue presented, it must go to the jury.
iii) Justice Holmes favors rules to be laid down when it comes down to negligence claims (Baltimore v.
Goodman – Holmes laid down a rule that if one can’t see a train coming, he should get out of his car and look to make
sure. Rules like this will make it less of a question of dispute and can be ruled through summary judgment.
(1) Will make negligence cases a lot more efficient and with clear cut rules, people will know what to
expect and comply in order to avoid negligence.
iv) Justice Cardozo believes that juries are the best at determining fact circumstances of negligence cases
and judges should not take it away from them. (Pokoro case – there are more facts involved with this railroad
crossing case, therefore it should go to the jury to decide whether or not (P) exercised ordinary care)
b) Inside/outside industry customs
i) Deviation from a relevant safety custom can serve as persuasive evidence of negligence
ii) Compliance with a relevant safety custom can serve as persuasive evidence of due care
iii) Question will go to the jury as to whether or not reasonable care was taken in light of the industry
iv) Trimarco v. Klein – Shower windows made with glass doesn’t follow the industry custom. Although proof that there is an
industry custom is not enough to be conclusive, it is enough to survive summary judgment and go to the jury.
v) Custom must be a safety custom; a custom of how certain machinery works will not even have a
persuasive affect.
c) Violation of safety statute
i) Violation of a safety statute is negligence in itself and not a question of fact (for judge to decide, not a
jury) (Martin v. Herzog – driving without lights on in breach of safety statute is in itself negligence – negligence per se)
ii) Negligence Per Se – Elements
(1) No excuse – i.e. driving above speed limit to take pregnant woman to hospital
(2) Violates a statute
(3) Statute designed to protect against the type of accident the actor caused
(4) Accident victim is within class of persons the statute is designed to protect
iii) Excuses to statutory violations:
(1) Disability excuse - Violation is reasonable in light of actor’s childhood, physical disability, physical
(2) Reasonable care - Reasonable care was exercised in trying to comply with the statute
(3) Ignorance of application - Neither know or should know of the factual circumstances that render
the statute applicable
(4) Statute is confusing – actor violated because of the confusing way its requirements are presented
Torts: Professor Kim (Fall ’07)
(5) Compliance makes more risk – to either the actor or others as opposed to noncompliance
(6) Excuse of emergency
iv) Statutory purpose doctrine – when a statute is designed to protect against the type of incident and the victim
is within the protected classes
(1) Need to look at statute and see what it is trying to protect. If not expressed, the courts will try to
figure out legislative intent
v) Other statutes (not safety statutes) – non-compliance can be persuasive evidence of falling below
standard of care, compliance can be persuasive evidence of meeting standard of care. Neither are
conclusory and should be a question for the jury.
a) Constructive Notice
i) Exemplified by – Negri v. Stop n Shop – baby food was broken and on the ground for about 20 minutes. Even if the
shop owner didn’t know, the court will deem he should have known (constructive notice). Since it is foreseeable that the
spill would cause an injury, the store is negligent by not cleaning it up.
ii) Elements
(1) Defect must be visible
(2) Must have been there for a sufficient length of time before the accident occurs
(a) Gordon v. American Museum of Natural History - (P) slipped on a piece of wax paper in front of the museum,
next to the food stand. Court said that (P) didn’t establish that the paper was there a sufficient length of time to
establish constructive notice.
b) Business Practice Rule
i) Doesn’t require constructive notice for business practices that create a reasonably foreseeable risk of
harm to invitees. Need to practice reasonable care due to the nature of the business that causes a
reasonably foreseeable risk of harm.
ii) Business can, as a defense, show that it took steps to prevent injury sufficiently.
c) Res Ipsa Loquitor (RIL)
i) Definition – Special evidence rule within negligence law that infers breach based on circumstantial evidence
ii) Circumstantial evidence – indirect facts that are presented to persuade the fact-finder to infer other facts
or conclusions.
iii) Elements
(1) Accident must be a kind that does not occur in the absences of someone’s negligence
(2) Instrumentality alleged to have caused the (P)’s injury was within the exclusive control of defendant
(3) Accident was not due to any voluntary action or contribution on the part of the (P)
iv) Hypo – Byrne v. Boadle – barrel falls and hits a pedestrian. Barrels don’t fall out of second story windows unless there is
negligence, barrel was in exclusive control by the (D) and (P) was just walking by so did not contribute to the accident.
v) Hypo – McDougald v. Perry – Spare tire falls of truck and hits the car behind. Court deems that one can infer negligence
from the circumstances because the chain holding it up is within the control of the (D) and it was his duty to make sure it
was in good shape.
vi) Ways that RIL can be used in court:
(1) Majority – Permissible Inference – jury is allowed to infer negligence from the circumstances of the
accident but it doesn’t need to if they don’t believe it.
(2) Minority – Rebuttable Presumption – jury must presume negligence and the (D) must rebut that
presumption in order to not be liable.
(a) Shift burden to the (D) who might have the ability to provide more evidence.
vii) Extension of the RIL doctrine
(1) Ybarra v. Spangard – while patient is unconscious for surgery his arm gets damaged leading to paralysis and atrophy.
Court allows to go through with RIL doctrine against everyone that was a part of the surgery and the hospital
(a) Argument against allowing this – (P) doesn’t know who caused the injury and by allowing him to
sue everyone, it can hold people that shouldn’t be held accountable, accountable.
Torts: Professor Kim (Fall ’07)
(b) However, no one confessed to it and the RIL doctrine can “smoke out” the truth.
(c) Extension of element (2) about the (D) having exclusive control over the instrumentality that
caused the injury. In this case, this isn’t very clear. But court follows through with RIL saying
that the doctors themselves were the instrumentality.
Medical Malpractice
a) Characteristics
i) Higher standard of care
ii) Customs determine the standard
iii) Expert witnesses establish the custom
iv) Expert witnesses may also establish RIL
b) Prima Facie Elements
i) (P) must prove the relevant recognized standard of medical care exercised by other physicians
ii) Then show that (D) departed from that standard while treating (P).
c) Customs
i) Respectable Minority Doctrine – if there are 2 approaches to a medical procedure, the (D) doctor can
establish that their procedure is respected among a respectable minority of practitioners (though it may
not be the norm) and be relieved of liability.
d) Use of Expert Witnesses
i) Old Common Law Rule – When a physician undertakes to treat or diagnose a patient he or she is under
a duty to exercise the same degree of diligence and skill which is commonly possessed by other
members of the profession who are engaged in the same type of practice in similar localities having due
regard for the state to scientific knowledge at the time of treatment
(1) Same type of practice – i.e. OB/BYN is different from family practice doctor
(a) Policy – similar customs might not apply because of the difference in qualification. The witness
might hold the (D) to a higher standard than he should be held at.
(2) Similar localities
(a) Policy – in order to protect doctors in rural areas from bearing the standard that an urban doctor
would be held to.
(3) Having due regard for the state of scientific knowledge at the time of treatment – cannot have been
out of practice for too long
(a) Policy – to prevent testimony from being out of date; also against doctors for hire who get paid
to testify.
ii) Modern trend – exemplified by Sheeley v. Memorial Hospital – complications from a c-section; (P) was not allowed
to bring in her expert witness because of common law restrictions on expert witnesses; the court changes the restrictions.
(1) Same type of practice  no more
(a) Rationale – standard of care should not be compartmentalized by a physician’s area of
professional specialization or certification and should be focused on the procedure performed
(2) Similar locality standard  National standard
(a) Rationale – because of technological improvements in terms of communication (doctors around
the nation can have access to the same information); Conspiracy of silence – might be difficult to
find a doctor within the same locality because it is a profession of reputation and not many
doctors within the same community will be willing to go against another doctor within the same
(3) Current experience issue stays the same (was not an issue in this case)
e) Witnesses for RIL doctrine
i) Reasons against
Torts: Professor Kim (Fall ’07)
(1) RIL doctrine is based on everyday experience. Bringing in an expert is counterintuitive because the
thing needs to “speak for itself.”
(2) It is difficult to bring a jury of laypersons up to speed with the common knowledge of doctors
(3) Don’t want to determine whether the (D) is liable based on mere empirical facts
ii) Reasons for
(1) There is nothing with the RIL doctrine that says that it must be to lay people. It could based on the
general knowledge among doctors that it would not happen without negligence.
iii) What happens – the expert witness usually presented empirical data to establish that it is negligence in
itself (e.g. out of 100 times, 5 are unsuccessful and 4 are a result of doctor negligence)
iv) Jurisdictions are split upon this issue
(1) Majority Jurisdictions – Allows for expert witness to establish RIL
(2) Minority Jurisdictions – Do not allot for expert witnesses to establish RIL
a) Definition – doctor has a duty to disclose to patients the material risks and benefits associated with medical
procedures (Mastromonaco case – woman with broken hip; doctor didn’t give the patient with the alternatives and proceeded
with what he thought was the best procedure)
i) Materiality is generally determined by a “reasonable patient” standard
(1) No need for an expert witness to establish the standard that should have been followed.
(2) It is “whether a reasonable patient would have considered the risk as material” – objective test
ii) Allows for a distinct cause of action based on doctor’s failure to obtain the patient’s informed consent
to treatment
b) Battery v. Negligence
i) Battery theory of informed consent (traditional) – consent needed to touch the patient because if not,
there is battery
(1) Problem: doesn’t require informed consent for noninvasive procedures when noninvasive
procedures can nonetheless have detrimental consequences.
ii) Negligence theory of informed consent (modern) – there is a duty for doctors to obtain consent and if
they do not fulfill that duty, it is a breach.
c) Duty to present reasonable alternatives
i) Rule – To obtain a patient’s informed consent to one of several alternative courses of treatment, the
physical should explain medically reasonable invasive and noninvasive alternatives, including the risks
and likely outcomes of those alternatives, even when the chosen course is noninvasive.
ii) Must provide all alternatives that are medically reasonable
iii) Policy – patients should have a choice of all reasonable procedures and have as much information as
possible; Patient’s self determination
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