Tort- Legally recognized wrong for which a remedy may be obtained describes some conduct that falls
below the legal standard. Tort is decided on precedence or law and imposed by government and not
contracts between parties.
Goals of tort law
1. vindicate individual wrongs
2. detterence to prevent future liable acts by saying what is .
3. Retribution
1. Intentional Torts to persons or property- Battery, Assault, False Imprisonment, Intenional Infliction of
Mental Distress.
a. Intent
1. Types of intent
a. purpose- desire to bring about a certain result
b. knowledge to a substantial certainty that result will occur from actions.
2. Transferred intent- if you have knowledge or purpose to commit one intentional tort it
will support a claim for another intentional tort to that person or another person.
3. Rational understanding of conduct- in order to be liable must have been capable of
entertaining intent and must be entertained it in fact. (only is some jurisdictions)
Exceptions
Children- must be based on their experience, age, training, etc.
Insane- Does not have to be found capable of entertaining intent.
4. Arguments why insane liable.
- to ensure those responsible for estate watch more carefully
- difficulty in determining mental capacity
- should have to pay for support so should pay for harms that are inflicted.
- insane person with wealth should not continue to live well when harmed
person suffers.
5. Intent to act and not to hurt is the important thing
a. Etcher v. Blitch- defendant fired at plaintiff intending to frighten, not harm
6. Mistake generally does not excuse even when in good faith.
a. Ranson v. Kitner- shooting dog thinking it was wolf.
b. especially in csses of appropriating wrong property because it would be unjust
enrichment.
b. Battery
A. Elements
1. Act
2. Intent
a. purpose
b. knowledge or a substantial certainty that harmful or offensive touch
will occur.
3. Harmful of offensive touch - Does not have to be touch of person but can be
a thing intametly connected to that person. (i.e plate Fisher)
B. P does not have to be aware of touch (i.e. sleeping beauty)
C. Does not have to be direct application of force ( Garrett moving chait)
D. Mistake does not negate intent (shooting of dog that looked like wolf)
E. Transferred intent applies
F. Offensiveness judged by reasonable (objective) standard. Harm is not required.
a. if P has a physical or mental condition tht causes the harm to be greater than
expected, Di is not responsible unless
i. he knows about it
ii. intends a harmful or offensive touch
iii. Spivey v. Battaglia- friendly unsolicited hug paralyzed P on left
side and no battery.
b. consent assumed for ordinary touches like pat on back and touching in
crowded hallway
c. Assault- Attempt or threat, accompanied by apparent present ability, to inflict physical harm on
another person.
A. Elements
1. Act or conduct on part of D
2. Intent to make a harmful touch. Must be overt act to person and not property
a. purpose to put P in apprehension of harmful touch
b. substantial certainty that action will place P in apprehension of
harmful touch
3. P must be in apprehension (fear not enough) of harmful touch
4. Apparent Presentability (imminent ability to carry out touch from the victims
viewpoint but measured from objective standard.)
B. Reasonableness test- apprehension must be to a reasonable person
a. factors for consideration- race, location, weapons
b. words that mitigate the apprehension must be taken into account
i. state v. crow- if you were not old I would knock you out
c. the more threatening the less of an overt act may be needed.
B. Transferred Intent Applies
C. Threats of future harm not sufficient
E. Awareness- must be aware (sleeping beauty no assault)
D. Must be act or attempt to touch to prevent those who look scary. (ATM at night
example)
d. False Imprisonment- direct, immediate restraint of one person of the physical liberty of
another person without legal justification
A. Elements
i. Act or Ommision ( not legally allowing another to leave but only if you are
a cause of need to escape). Woman in storage unit.
ii. Intent
1. Purpose to confine
2. Knowlegde to substantial certainty that confinement will occur
iii. Confinement- physical not moral persuasion
1. Can be physical barriers
2. Can be threats of harm. P is not required to incur physical harm to
escape
3. Must be limited to specific area without means of escape (or
knowledge)
4. May be 1000’s of miles is still a boundary
5. retention of property and possibly job may provide restraint
necessary for false imprisonment
6. If act indirectly causes imprisonment that is enough. Ie.
Boyfriend driving car away making it impossible to escape
B. If you are convicted of crime you are arrested for no False Imprisonment
C. Awareness
i. Must be aware at time of confinement ie. Parvi driven out to golf course
ii. If there is an exit P must know about it i.e. it can not be hidden passage
D. Exit conditions- must be reasonably obvious exit or known to P.
i. Cannot threatan serious harm. Look at reasonable standard of what is
dangerous.
ii. If P does go through dangerous exit cannot recover for false imprisonment?
Damages resultant may be actionable.
iii. Cannot involve exposure of person i.e. taking someones clothes while
swimming.(also if you take their jacket and they don’t want to leave without
it then it may be false imprisonment) (if exit conditions will harm their
clothes it is false imprisonment)
E.Exceptions
i. Airleines- privileged not to let someone off until the destination is reached(
common carrier)
ii. government- at times like jails(police when it is for correct arrest and they are
convicted of crime).
iii. people viewing arrests and helping of police
a. if you know the arrest is false and cop asks then you are liable
b. if cop asks you and you act in good faith you are not liable
c. if police do not ask and you help and bad arrest then you are liable
iv. mental institution
a. with stautory commitment procedures even if doctors
diagnosis was negligent no false imprisonment.
b. Without statutory commitment proceedings. False
imprisonment I coerced into signing voluntary
commitment
c. During statutory commintment proceedings no false
imprisonment when done in good faith.
E. Intentional Infliction of Mental Distress- traditionally had to be linked to another tort
a. Elements
i. Act- must be outrageous (exceeds all bounds that could be tolerated by
society)
1.period of time took place
2. relationship of parties and power of each
3. known vulnerability of party
4. location(saying mormons are stupid in Utah)
ii. Intent.
a. can be purpose or substantial knowledge
b. Can be reckless (conciousness awarness of danger and lack of
concern)
c. Not transferred unless D is aware of third party presence and some
jurisdiction require suffering on part of third party
iii. There must be causal connection between intentional outrageous act and
severe emotional distress
iv. Emotional distress must be severe.
a. more than ordinary person can be expected to endure
b. must show injury but not necessarily physical
b. exceptions
i. carrier rule(must be correct kind of plaintiff and need duty to them)
ii. discrimination and sexual harassment.
iii. Public figures and when first amendment in play( must be believable and
malicious)
c. Criticisms
i. Lead to flood of fraudulent lawsuits (hopefully screened by contingency
fees)
ii. Difficult to distinguish and quantify recovery
iii. Could lead to exaggerated facts.
d. Common carriers held to higher standard.
F. Trespass to Land- many times it is instituted to decide ownership of land.
a. Elements
i. Act- coming onto the land even if no harm is done because treading on
grass is seen as a harm
ii. Intent- must intend to be on property or substantial certainty that you will
enter property. Do not have to know it is not your property. Reasonable
mistake does not mitigate intent. Liable even if not forseeable
iii. Intrusion onto land
a. Can be physical intrusion
b.
c.
b.
c.
d.
e.
Does not matter if intrusion is beneficial
Today it can be accumulation of particles on land (and
damages)(majority)
d. Can be direct or indirect intrusion (diverting a stream)
e. Can be in airspace above land or below ground.
Transferred intent applies
Permission
i. Trespass occurs instant permission is rescinded(must give reasonable time
to leave)
ii. Trespass occurs if it is beyond scope of invitaion
Must be physical invasion (odor does not matter)
Damages
i. Nominal
ii. Actual
iii. Punitive as in steenberg homes
G. Trespass to Chattels
a. Elements
i. Act- intermeddling with chattel
ii. Intent
a. Purpose to intermeddle or knowledge to substantial certainty
iii. Must be harm to chattels
b. misstate- does not matter if D thought that chattels where his own.
c. Need actual damages
i. Because chattels not as important as land
ii. Dissposession of by P for a substantial amount of time
iii. Harm to owner including economic harm
d. Damages- is actual damages to chattel
H. Conversion
a. Conversion is the intentional control of a chattel which so seriously interferes
with the right of control as to warrant payment of the full value of the item.
Must be greater interference than a mere intermeddling - an exercise of
dominion or control.
b.
c.
d.
Factors
i. Extent and duration of D exercise and control
ii. D’s intent to interfere with right to control
iii. Good faith
iv. Level of harm done to chattel
v. Inconvienience and harm to owner
Intangible and tangible things can be converted
Damages are full market value of item and D gains title
i. No damages for sentimental value only fair market value
I. Defenses of Intentional Tort
A. Consent- use objective standard. Would reasonable person think
she consented.
1. In most jurisdictions consent is not a privilege and must be proved by
the Π
2. Capacity to consent
i. Children may or may not be able to consent
a. Depends on age
b. Depends on what is being consented to. Can consent to baseball but not to procedures
beyond what they can understand.
ii. Mental capacity
a. Retardation
b. Drugs or alcohol
c. consciousness
iii. Statutes laying out for others in family when there is no capacity. Or durable
power of healthcare
3. How judged
i. Don’t need verbal or oral (explicit or implicit)
ii. Objective standard of what reasonable person would have understood from Π
iii. Can be by not objecting (vaccine case)
4. Scope of Consent
i. Use general customs (football player)
ii. Can apply to any voluntary participation
iii. In emergency and imminent harm then doctor has consent
a. Reasonable person would consent
b. This person would consent (if you know jehovas witness)
1. If child then this child’s parent must consent.
iv. Does not extend beyond where person gives it (left ear consented by operated
on right)
5. Things that can bar consent
i. Nullified if obtained by fraud
a. Positive misrepresentation
b. Failure to correct a misrepresentation
ii. Can be withdrawn at any time
a. Think about airline v. surgery
iii. Undisclosed information sometimes (STD)
iv. By statute such as statutory rape
v. Scope of consent
vi. When obtained through coercion
vii. Age
viii. Criminal activities
6. Consent forms
i. Difference between necessary and appropriate and necessary or appropriate.
7. When engaging in something illegal. Ex. Fighting- two rules
i. When parties engage in mutual fighting both are liable to each other. Even
though you consented, it does not count because you can’t consent to crime
ii. When engaged in mutual fighting neither can recover because consent counts
and precludes recovery
iii. Even where can not recover are exceptions
a. Statutory rape
b. Selling glue to minor
B. Self Defense- Δ has burden of proof. Recognition that touch or
confinement is okay. Threatened invasion of legal right
1. Must be reasonable appearance of imminent offensive or harmful
touch
i. Can be wrong about actual need as long as it is reasonable mistake
ii. Can hit use it against wrong person
iii. Can inadvertently hit wrong person while defending against the right person
2. Some courts say look at it subjectively through eyes of person being
attacked. Take into account physical and physiological attributes
3. Things that can contribute to reasonableness
i. Previous threats by tortfeasor
ii. Physical attributes like age, height, strength
iii. Numbers threatening
iv. Prior bad experiences
4. Amount of force is judged on reasonableness
i. Generally amount of force is what reasonably appears necessary to prevent
threatened invasion.
ii. Deadly force can only be used when reasonably threatened with deadly force
which includes serious bodily injury
a. In some jurisdictions must you retreat before using deadly force (never for regular force
1. Exceptions- house or business
5. Defense of third partiesi. Mistake- split jurisdictions
a. Reasonably appears that need rescuing
b. Stand in shoes of person rescuing and if they have privilege then you do as well (police)
c. When subjective standard for reasonable appearance can create large fight
6. Defense of property
i. Can use non deadly force to protect property (no spring gun)
a. No property is worth as much as human life
C. Protection of Property- Can use more force to protect property
than to get it back. Must be yours
1. Some circumstances where you can use reasonable force to get it back
i. When it was wrongfully taken
ii. When in hot pursuit
a. Can use reasonable force to take it back as long as in hot pursuit. Must demand first
iii. Must make demand for it back first to avoid breach of peace
iv. Don’t get a reasonable mistake
2. Shop keepers privilege- Merchants can use reasonable force to act
upon a reasonable suspicion to make a reasonable investigation to
recover property
D. Necessity – property must be itself dangerous when used
1. Must be reasonable necessity
2. Must be emergency
i. Can be wartime
ii. Fire coming
3. Do not make public pay because it would deter officials from making
timely decisions to better society because of fear of liability.
4. Reasonable mistake is allowed in public necessity.
5. Private necessity- privileged to save property but must compensate
(when source of danger is not Π).
i. Must pay to stop unjust enrichment
6. LOOK AT R2 72??? Looked it up
E. Differences of Self Defense and Necessity
1. Source of danger.
i. If I trespass to save myself from the storm I am privileged to stay but must pay
for damage
ii. If your dog threatens and I jump on truck I am trespassing from danger
which you are responsible
F. Authority of law- Δ is duly commanded or authorized by law to do
what he does, he is not liable for doing it
1. A citizen takes full risk if he arrests wrong person
2. If not a felony must be in officers or citizens presence and must be in
fresh pursuit
3. For misdemeanors you can’t arrest without a warrant
G. Discipline
1. Parents are privileged to use reasonable force to discipline children
2. In some jurisdictions there is a teachers’ privilege to maintain
reasonable order in the classroom.
H. Justification
1. Restraint or detention, reasonable under the circumstances and in
time and manner, imposed for the purpose of preventing another from
inflicting personal injuries or interfering with or damaging real or real
personal property in one’s lawful possession or custody is not unlawful.
I. Can have new defenses that don’t fit in
1. Bus driver protecting own property by taking whole bus load to
police station.
II. Negligence
A. Elements- traditional formula includes
1. Duty to use reasonable care. Law obligates to live up to standard
2. Breach- failure to conform to required standards. Negligence if
fails to do what reasonable person would in similar situation
3. Causation- a reasonably close causal connection between the
conduct and resulting injury
4. Harm- Damage or actual loss to interests of another. Must have.
Driving 90 in school zone but with no harm there is no tort.
REQUIRES ACTUAL HARM. Can not recover for nominal damages
5. Basic elements of compensation. If liable pay all 3
i. Past and future medical expenses
ii. Past and future lost income
iii. Past and future pain and suffering
B. Breach
1. Standard of care- whether conduct conformed to what reasonable
person would do under similar circumstances. Objective and not if Δ
forsaw risk. Menlove is premier case.
i. Constructive knowledge- you should have known(tire case). Doing
your best may not be enough.
ii. Reasons objective is better.
a. Eliminates defense of I didn’t know better. .
b. Judicial administration- easier to apply and more uniform than subjective
c. Creates incentives to find out things when engaged in risky activity
iii. Customs- help to show what is reasonable. Market presumably
makes customs efficient and reasonable. Not conclusive but will get case
to jury
a. Does not have to be universal but must be fairly well defined
b. Customary practices can be found to be unreasonable.
iv. Exceptiona. Superior knowledge taken into account.
b. Reasonable person can be distracted
c. Emergency- what would a reasonable person do in emergency.
1. Can not create the emergency and then use it to negate conduct
d. Physical impairments- blind and hold to what reasonable blind person can be
expected to do.
e. Child standard
1. Held to reasonable child of same intellingence, experience, maturity, training, and age.
2. Exception- When the instrument is inhenertly dangerous(adult activity). Matter of law
and not for jury
f. Not held to reasonable conduct of insane person. When there are 2 innocent
the one who does harm should be punished.
1. Those who control estate are more likely to watch them more carefully
2. Fear of insanity as defense
3. Exception is WI that has flexible standard that says insanity will sometimes be factored in
if it prevents Δ from understanding what is required or prevents from conforming to
standard if there is no forewarning
g. Old people- some jurisdictions hold people in same age, conditions,
circumstances
v. Eaton thinks that rules for Π contributory negligence should be
judged the same way
vi. Economic Analysis
a. Take precautions against what is reasonable to occur and not extreme (water
main break)
b. Take into account
1. Location of the premises
2. Purpose for which it is used
3. The probability of injury
4. Precautions to prevent the injury
5. Relations such precautions bear on use of premises
c. Look at cost benefit- could precautions that would be more benefit to society
than cost (turntable case)
1. Do not need to go to extreme lengths because turn table is beneficial to society
2. If cost for prevention is more than probability of injury might not have to take
precaution. Some things might be so beneficial that accidents are not worth preventing
3. Things may become reasonable when technology makes prevention measures cheaper
over time.
4. BP>L – identify specific acts or omissions that Π says are unreasonable and then what
precaution should have been taken.
i. If burden times probability is less than loss there is no negligence.
ii. Does not matter size of company or resources of Δ
iii. Look at total probability of accidents and not just how it specifically occurred here
iv. For B think about all training involved and everything needed to implement burden
vii. Brief overview of law and economics
a. Liability should only be imposed if efficient accident avoidance measures are
not done
b. Over investment in safety is evil just as under investment
c. Ideally no tort law because people would bargain for efficient safety ( need
tort law because of transaction costs)
d. Bender article disagrees and says should be caring neighbor standard but this
would lead to spending more than BP>L says and not being economically
efficient.
viii. Professional responsibilities
a. Held to standard of care of reasonable professional person
b. Use experts to establish standard of care. Experts are necessary. .
1. Custom takes on added importance because more skill and training, self regulation like
BAR, it is technically more complex so jury less likely to be able to figure out what is
reasonable on their own, also that there is fiduciary relationship between professional and
lay person whereas think car dealer out for self
c. Breach of standard is shown through experts and fact witnesses or
combination of two
d. Must act in good faith with same learning and skill and use diligence of
reasonable professional. (not average but reasonable. No difference is out of
law school for 40 yrs or 1 yr.)
1. However not held to standard when there is not established way of doing something(like
issue not being addressed before in law)
e. For legal malpractice must prove that negligence caused harm and that it
made difference in suit so practically proving case against lawyer and original
case.
1. Must have knowledge and skill of reasonable lawyer, must use it, and in good faith.
f. Not all professions are held to standard
1. Teaching not. Many different ways to teach and many reasons why pupil did not learn
2. No clergy malpractice recognized
3. Accountant held to standars
4. Architects and engineers
5. Specialists held to higher standard than even doctors. If you hold yourself out to have
special knowledge.
g. Medical Malpractice- must prove standard and deviation to get to jury
1. Standard of Care-
i. What another doctor would have done does not establish standard of care. Must be
what reasonable care is.
a. Standard of medical community only found negligent in a few cases like opthamoligst
case where did not run eye test. Controversial
ii. Geographic standard- locality rule- created because of the historical disparity between
doctors in rural areas v. urban areas. Both info and equipment are different.
a. Similar locality- look to other communities alike around country. However could have
completely different standards.
b. National standard- increases pool of experts and raises standards. Allows for
standards to be used of national organizations.
c. This community
1. If standard is low in community it would immunize doctors
2. Limits pool of experts because they must testify about the locailty.
iii. Expert testimony not needed if so outrageous that laymen can think for themselves.
Narrowly construed.
a. Leaving objects in body
b. Leaving body of person under without rails up on bed
iv. King article about accepted v. customary practices
a. Customary practice describes what people are doing
b. Accepted practices describes what people should be doing
c. Encourage learning but people might not be able to afford newest equipment.
2. Informed Consent- patient not told about all risks so could not give informed consent.
Different than traditional malpractice because not questioning judgment of skill of
physician.
i. Must prove that physician did not disclose material risks. The undisclosed risks must
be part of harm.
a. Two standards- split in jurisdictions.
1. Patient Standard- would patient still go forward with procedure if risks disclosed. 1.
Would reasonable patient go forward if informed of risk. 2. Would particular patient go
forward if informed of risks. Expert not necessarily needed expect to talk about
procedure
2. Physician standard- customary practices about what would be disclosed. Expert
needed to talk about risks and what alternatives to procedure was and risks associated
with alternatives. Another approach is that any material risks should be disclosed no
matter the probability.
3. Laid out by statute (as in GA)
ii. Employed because society values patients right to chose after given all facts
iii. Not a battery because consent to exact nature of touching
iv. Must inform of research and financial interests in some jurisdictions. Might come out
differently with reasonable physician standard.
a. No real answers about how much must be disclosed about personal life.
v. Expands to psychological risks such as claustrophobia in MRI
vi. Exceptions
a. Emergency such as when unconscious or incompetent.
b. If disclosure would be detrimental to patient
c. Risks that doctor has reason to believe are known to the patient
1. For instance if nurse already told them
vii. GA informed consent
a. No common law informed consent in GA
b. Statue covers surgery involving specified anesthesia, amniocenteses, and any
procedure that involved intravenous or intraductal contrast material. If you have one of
these surgeries there are 6 categories of outcomes that must be disclosed.
c. Use reasonable patient standard
h. Effect of Statute
1. Two different ways it is handled
i. Negligence per se with excuse-majority of jurisdictions. greater weight to it. If it is
found that statute it is negligence and nothing for jury to decide.
ii. Reputable presumption of negligence- when evidence is shown burden shifts to Δ to
rebut what is said by Π
iii. Evidence of negligence and that is all.
2. Why give statutes more weight
i. They are designed to promote safety
ii. There is a bright line test for behavior. It is more efficient
iii. Legislative body made standard and going to defer to that. Elected officials better
gauge then case by case verdict.. Not bound by rules of evidence when formulation
standard
iv. Reasonable man does not violate statute
i. Negligence Per Se
1. 5 things factors that need to be asked to apply negligene per se. If not all factors there
must still look at it from traditional negligence.
i. Is statute one that should be enforced by negligence per se.
a. Ex. Child abuse case example where not applied because of irregularities in standard
and causation
b. No duty present under common law
ii. Was a statute violated
iii. Is the Π in class of people who were intended to be protected (lot of wiggle)
iv. Is the injury that occurred within the risk covered ( lot of wiggle)
v. Is there a causal connection between violation and injury
2. Defenses that show some mitigating circumstance. When 5 elements of negligence per se
are shown it switches burden to Δ to show defense.
i. Restatement 288A pg. 223
a. The violation is reasonable because of the actor’s incapacity
b. He neither knows nor should know of the occasions for compliance
c. He is unable after due diligence to comply
d. He is confronted by an emergency not due to his own misconduct
e. Compliance would involve a greater risk of harm to the actor or to others.
ii. Exceptions will be made for children, especially in contributory negligence situations.
iii. Ex. Statute about light on bicycle. Child that does not have light can be evaluated
under children standard of care and could be found negligent using that standard.
iv. For some statutes no excuses or defenses under common law. designed to prevent
vulnerable people. Like selling airplane glue to kids.
3. Just because Δ can show compliance with statute does not show that there was no
negligence as matter of law. laws are bare minimum.
4. No big difference between negligence per se with excuse and rebutabble presumption.
Should we enforce regulations the same way
i. Given some weight but courts will take statutes 1st then regulations 2nd and then
advisories 3rd.
j. Res Ipsa- the thing speaks for itself. Presumption is that some things will not
happen without negligence.
1. Three kinds of procedural differences in jurisdictions
i. Inference of negligence- jury does not have to find negligence. Majority of
jurisdictions. Gets over directed verdict.
ii. Provides presumption of negligence. If shown it is up to Δ to rebut and Π can get
directed verdict. In a tie Δ wins
iii. Full shifting of burden of proof and if there is showing of res ipsa then burden of
persuasion is shifted meaning in a tie Π wins.
2. Saves Π from proving exactly what happens and shifts the burden
3. Not everything rare means negligence or res ipsa
4. Elements
i. Conclusion that event does not ordinarily occur without negligence
a. Use general knowledge to figure out. Experts can be used if beyond common
knowledge. Would ask expert is it more likely than not that it was caused by negligence
b. Ex. When operating on stomach and arm is injured.
c. Note- If defense is that it is foreseeable without negligence might have informed
consent issue.
ii. Need exclusive control- more than physical custody at time of injury. Responsibility
for the injury producing object at time of negligence.
a. When having this must be damn sure who did it
b. CA supreme court shifted burden to all in operating room in Spangard. Exclusive
control of group. Incentive for truth to come out.
1. Split in jurisdictions accepting this.
iii. That Π had nothing to do with event. If so Δ should not have to pay. Not often an
issue
5. Res ipsa limited in medical context
Notes say this is end of discussion on reasonable care and gives a
check list if conduct is reasonable when looking at fact pattern.
Physical characteristics that may be taken into account, mental
capability generally not taken into account; reasonable person might
be distracted, act differently in emergency. Reasonable person in
terms of economic considerations BPL. Role of coustoms and to
what extent it is relevant and even define the standard of care, role of
expert witnesses, compliance and violation of statutes, how to deal
with local ordinances. Circumstantial evidence, presumption,
inferences.
C. Causation- even if there is duty and breach no liabity unless
the breach is cause of harm. Two issues
1. Cause in fact- If the injury would have been avoided with the
exercise of reasonable care. If beyond knowledge you need expert.
i. Identify the negligent act or omission and then consider whether
injury would have occurred in absence of negligence
a. Train could not have stopped even if going 25 mph. Time begins when the
car was seen. Fact that if it was traveling 25 mph for previous mile car would
not have been on tracks does not matter
b. Use the but for test
c. Standard is more likely than not
1. 1/100 chance is not enough as in cancer from glass case
2. Must be 50%+ to get to jury
3. Not widely used test is when Δ negligence increases the risk to the Π then will let jury
decide if Π would have survived. Full damages as in but for test.
4. Lost chance theory- more likely than not negligence was cause of lost chance of life
i. Percentage is of chance lost. In one case it went from 39% to 0% and that is loss of
39% and recover is based on that. In another it goes from 39% to 25% and recovery if for
14%.
ii. Give recovery as percentage of value of life.
iii. Policy reasons for adopting
a. Will raise standard of care for those with below 50% chance of living
b. Taking chance is definitely something worth protecting
d. Think about what reason it is negligent. Having stairs in disrepair is not
negligent because someone will be shot but because someone will trip
e. Expert witness testimony- lower courts ruling can only be overturned for
abuse of discretion
1. Traditional common law rule was frye rule but supreme court said superseded by federal
rule
2. What makes it admissible
i. Published in peer review journals
ii. Did scientist produce own data
iii. Generally accepted methodology
3. Must have increase of more than twice for statistician to talk about causal relationship
ii. Examples of not
a. Runaway horses falling into ice hole. No warning of ice hole not negligent
because horses could not have been stopped
b. If person does not read warning label then does not matter if specific warning
on label
iii. Concurrent Cause- more than one but for cause. Two independently
sufficiently acts of negligence.
a. Hill Case- Car left in road and then person negligently hit is
1. Negligent act would not have happened without both negligence. A cause in fact but not
the cause in fact.
2. Both are held jointly liable and Π can recover 100% from either
b. Anderson Case- only happens when two independently sufficient causes
1. A Δ will be held liable even if the other independently negligent act is of unknown
origins(two fires)
2. When there are two must be material and substantial to be held liable
i. To avoid both getting off hook( car with no brakes and guy does not attempt to apply
brakes.) No but for cause with either
iv. Problems in determining which party caused harm. Three ways to
shift to all Δ.
a. Summers v. Tice(two shooters I bullet. )Traditional approach would not allow
recover because not 50%+ chance either caused
1. CA shifted burden to Δ to prove they didn’t do it
i. Π can recover from either
ii. Says Δ in better position to exonerate themselves.
iii. Both must be negligent that way sure that one is wrongdoer
iv. More equitable than res ipsa because both parties are already negligent.
b. Treat as concerted activity where they all got together and decided to do
something wrong and they will all be responsible.. To do this must have assisted
in wrongdoing
c. Sindell v. Abbott Laboratories- not sure which DES manufacturer sold drug
1. CA court comes up with market share
i. Substantial share of market required to impose this
ii. Only responsible for the amount of damages that equals market share
2. Problems
i. Geography. If you do individualized market share might be inequitable
ii. Think it is important to have one who did harm to be responsible. No individualized
justice
d. You know that in assessing reasonableness of conduct you must identify
individual act or omission and run it through the gauntlet of standards. After
you reached conclusion about if conduct was reasonable you think about if it
was the cause in fact of the injury. Starting point is but for. But there are times
when the but for test is problematic which is when there are multiple
independently sufficient causes. There we use the substantial factor test. There
is another time when causation is inherently problematic which is lost chance
where people are in bad shape to begin with. Then we finished up with whose
responsible line of question in summers and sindell. Always remember that
plaintiff does not always recover
2. Proximate Cause- cluster of rules to define limits of legal liability of
a negligent act that is cause in fact.
i. Must limit because for anything can go back to birth(must be
necessary and usual)
ii. Unforeseeable consequences.
a. Ryan v. NY Central RR- RR caught fire to woodshed and limited to first house
burned
1. Justification is that it is the natural and expected results that a first building would burn
i. Later said first property adjoining.
2. States other factors come into play like wind
3. First party in better place to get insurance. Better establish worth of property
4. Must set limit somewhere or will have ridiculous liability and it will be disproportionate
5. Different states have different rules. In KS with uninsured grains said it was liable.
6. Most decisions holding Δ liable for fires spreading to distances are liable for whole
amount
b. Thin skull rule
1. Bartolone v. Jeckovich- take Π as you find them
i. Fairness because Π is innocent
2. Even if something will need hernia surgery later if you caused it now you are liable
i. And if you make it more likely to happen
3. Applies to property. Regardless of whether package is ming vase or newspapers
c. Polemis(boat fire with board going into hold)
1. Will be responsible for unforeseeable consequences so long as it was direct series of
causation.
2. Could foresee some harm coming from dropping board so does not matter does not
foresee extent
3. If independent forces come into play will cut liability
4. Can be completely different type of harm as long as your act does cause some harm
leading to natural string of things that resulted in greater harm.
d. Wagon Mound- embraces distinction between extent and type of harm. Is it
foreseeable type of harm.
1. Rule adopted is that Δ is liable for probably consequences of his act(foreseeable risks)
2. Is the harm that occurred foreseeable from the negligent act
i. Must prove that each act that contributes to the event is itself foreseeable
ii. Does not need to foresee the exact way the harm occurs so land as harm itself is
foreseeable.
a. If you are Δ want it to be as narrow as possible. More detail needed less likely it is
foreseeable
iii. Foreseeable that bad shrimp will cause someone to throw up but not someone else to
slip on it
iv. This is position adopted by R3. An actor is not liable for harm different from the harm
whose risks make the actors conduct tortuous. Does not distinguish from differences that
are greater or less magnitude only that what is anticipated is different
3. Justification
i. First party insurance is easier to deal with
ii. When tortfeasor has insurance claims are settled through litigation
4. Criticizes Polemis
5. Reaffirms thin skull rule.
i. Difference between personal injury and other harm?
ii. No preexisting condition of dock
READ ARTLCE BY PROSER AND KELLY THAT DEAL WITH PALSGRAF
e. Palsgraf- type of person expected to be injured
1. Not foreseeable that person who was harmed would be harmed
2. Take into account time and space
3. Does your negligence cause the Π to become a Π
4. Dissent
i. Would take into account things that are substantial factors
f. Yum v. Ford
1. Appeals court says only reasonable conclusion is that running out into highway caused
harm.
2. Dissent says leave it up to jury and supreme court reverses this appeals court and agrees
with dissent
3. When there is a question it is best left up to jury
g. Intervening cause- come in after the negligent act. Don’t address unless
there is negligence and it is cause in fact.
1. Superseding cause- subset that cut of liability
i. How do we know if intervening are superseding
a. The extent to which the intervening forces are factually foreseeable
1. Felix Contracting does not cut of liability because it was foreseeable that car would
crash into worksite if no barricade
b. The culpability of intervening forces- were they done with bad state of mind
1. Watson case if striking of match was malicious then takes away culpability. Match
being struck is foreseeable but not intentional act.
2. However there are times where criminal conduct will not relieve. Ex. Movie theatre
with no security and someone is stabbed. It is foreseeable that security would stop
stabbing.
ii. Suicide
a. In NY was there an irresistible impulse. Meaning involuntary.
b. Workers comp- if it is substantial factor in suicide. Broadens scope of recovery
iii. Rescue doctrine- allows injured rescuer to sue the party which caused the danger
requiring the rescue
a. 4 elements
1. Δ must be negligent to the rescuer
2. Peril must be imminent to rescue from
3. Reasonably prudent person would have to have thought peril was imminent
4. Rescuer acted with reasonable care
b. Do not need forseeability because we value rescuers and will give them extra
protection.
c. Can extend to rescuer of rescuer
d. Exception.
1. Fireman’s rule- professional rescuers can not sue. Recently split in jurisdictions
iv. Negligent by others after fact
a. If injured at hospital after negligent act are responsible for doctors negligence
1. Tortfeasor can bring suit against doctor
b. Responible for second injuries that occur because of weakened condition resulting
from first negligent act.
v. Public Policy
a. Allows social host to be liable for injuries to person caused by drunk driver
1. Problems. Puts burden on host to determine drunkenness
2. Legislature then tinkered to set bright line test about when someone is visible drunk.
3. Most states have rejected social host liability. Even those states extend it to underage
people served alcohol.
b. Decide not to extend liability to negligent act that occurred before conception
1. Done to keep tort liability in manageable scope.
2. Don’t want to over deter pharmaceutical companies from investing in risky medicines.