A.
BACKGROUND a.
Formalism i.
Cannons of Construction, learned law as specific rules ii.
Based on the ideas that if judges were biased, didn’t matter because rules could be fixed, incorrect because hidden bias- rules are “outcome determinative” iii.
Strong emphasis on judicial deference- leave lawmaking to legislative branch b.
Legal Realists i.
Karl Llewellyn- wrote the UCC in 1920s ii.
Bias could be in the selection of rules (canons) to apply iii.
Judges decide how the result of that case would impact and influence next, future cases- what is the purpose of the ruling is for precedent (Law is dynamic not static) c.
Contractarian i.
Social contract: people give up sovereignty to a government or other authority in order to receive or maintain social order through the rule of law ii.
Historic period defined by contract- focus on entrepreneurship and laissez faire gov’t iii.
Third party couldn’t sue manufacturer iv.
Needed to establish privity - or contractual relationship between parties d.
Utilitarianism: John Stuart Mills & Jeremy Bentham i.
“Principles of morals and legislation” ii.
Bentham Criticized England for not having enough citizens be productive because they were being held down by the gov’t system
1.
Should evoke the “greatest good for the greatest number” iii.
John Rawls Can’t deprive others of the right of production and ability to create property: if you accumulate too much property, people have a right to take it away e.
Torts Revolution i.
Formalism declined during the rise of Torts ii.
Utilitarianism conflicted with contractarian belief established at the time
1.
By providing education, increase government income because give more productive people to tax, less people in jail iii.
Ronald Dworkin : Challenged utilitarianism by stating that intellectuals have embraced utilitarianism as a legal theory, but is a threat to liberty
1.
Tend to minimize the protection of individual dissent, minority interests- tension between utilitarianism and individual rights f.
Critical Legal Studies Movement Duncan Kennedy i.
Deconstruction of text in terms of its origin and meaning
1.
Where do these terms come from? Why? Ex: property was derived from early
English courts (King John and Robin Hood) a.
King John created laws to get the power he wanted
2.
King seized church property so they created their own legal system
(Ecclesiastical courts: can’t try church because we own God’s property) a.
Law written by the “have’s” to deny the “have not’s” ii.
“Crits” try to challenge class conflict and the legal and wealth differential- actively seek to balance power- courts should be an active forum to recognize wealth and power differentials to ameliorate differences g.
Feminist Scholarship Leslie Bender, Susan Estrich i.
Challenge the patriarchal bias in society- male orientation of laws (wife beating law)
1.
Laws written for the greatest good for the greatest number (of men) ii.
Feminists ask the question of why? Why do we assume this approach is the way?
Challenge the language that separates and dominates people
1

iii.
Trial by Combat: Originally thought god would favor whoever is right iv.
Trials by Ordeal: eventually allowed surrogates, advocate hired to fight for others- law is about one party dying and the other living
1.
Juris pathic systems - zero sum games- legally dead or alive v.
Should be juris generative - find middle ground instead of just one wins and one loses vi.
Recognize collective benefits, duty to help others even if not responsible for their issue vii.
Bias not in application of the rule, but in selection of the rule on date rape and acquaintance rape h.
Hagel i.
Property is an extension of personality ii.
Can only understand property a part of a relationship- can’t value the property without valuing the relationship- not the market value- but that’s often what’s used iii.
Seek damages for emotional distress? Ways to get around market value
B.
LEGAL THEORY a.
Judicial deference and administration i.
Judicial restraint can be tied to efficiency ii.
Market may be a better location to decide the questions iii.
A.C. Pigou claimed that we should try to leave things to the market, but then there are market failures (in which case you should legislate) iv.
Floodgate problem- recognize that precedent will determine # cases heard in the future v.
Judges shouldn’t attempt to answer political questions b.
Madisonian System of Government (James Madison) i.
Foundation based on what a human is, government stability dealing with human nature, motives, virtues: what were the causes of failures of government? factions were enemy a.
Cant have a system that ignores factions- but encourage them to be shown so that they can be dealt with ii.
Judges have to be careful not to usurp power but let the factions fight in congress (Article 3 of Constitution talks about courts- and is very short) c.
Institutional Competence/ Judicial Deference i.
What areas should be deferred to legislation through congress
1.
When should the courts decide? Brown v Board of Ed all might have come about through congress/ states so would have been more representative of the people
2.
Public should be heard through elected rep’s not courts d.
Floodgate Problem i.
When a judge is asked to find a form of liability to recognize a claim, but the result would be that too many other cases would enter courts ii.
Understand the injury, but issue is how to define and confine the tort iii.
Will rule in your favor, but have no tierra firma or ability to confine the doctrine (“slippery slope doctrine”) e.
Legislation i.
Can’t always agree on the detail so intentionally leave “gaps” to leave decisions to courts to
“gap fill” or because they want them to be interpreted in different ways ii.
Result of negligence in writing, political indecision, backroom deal iii.
Big companies (smaller groups) can get counter-majoritarian deals f.
Legisprudence i.
Judicial deference favored, emphasis on procedure and process ii.
What affects most citizens are legislation and regulation- not Constitution iii.
Hart & Sachs - role of courts in our system
1.
Process liberals that emphasize procedure over process (how > what)
2.
Need there to be open and deliberative debate in Congress
2

iv.
“Process of institutional settlement” believes that if you keep the three branches as designed by the constitution will result in disparate factional interest producing a single result g.
Public Choice School i.
Questioned the assumptions of the Madisonian system & Hart/Sachs ii.
Mancur Olson - “The Logic of Collective Action” smaller groups are more powerful than bigger groups- have more at stake and no free rider problem iii.
Studies politicians’ behavior- mostly self-interested agents, interactions in the social system either as such or under alternative constitutional rules. iv.
Assumes that people are guided chiefly by their own self-interests and, more important, that the motivations of people in the political process are no different v.
Easterbrook
: Apply laws as written, don’t gap fill- legislation gaps are bargained for vi.
Macey : DO gap fill; take Congress at its word and enforce the “ public-regarding purpose
” of legislation; Congress can fix it if wrong h.
Dealism vii.
Frank Easterbrook - any ambiguity or gap in a statue means that you don’t know if it’s a hidden deal or error, so you can’t
fill the gap viii.
This results in a change in the political system, if the majority of congress wants the special deal then can’t reverse the majority of Congress ix.
Best to treat legislation like a market, small groups buy and sell and the best we can do is to do nothing
C.
EFFICIENCY THEORIES a.
Posner i.
Easier to measure, efficiency, what’s efficient > what is moral ii.
More agreement on what is efficient than what is moral, so more consistent applications on efficiency-based decisions iii.
Can expand the universe of what is efficient under the Hand formula iv.
Morality is bad basis for law b/c of subjectivity b.
Pareto i.
Choice is efficient because it benefits a person without costing another person (produces all winners and no losers ) (road lines) ii.
Pareto Optimality- each next improvement is “Pareto superior” until reach Pareto
Optimality, then next one is a loser- no longer efficient a.
Can compensate losers making them winners- prolongs efficiency b.
Takings clause is Pareto efficiency- if the government takes your property they must compensate you for it (loser becomes winner) iii.
Pareto can compensate, wants no losers in transaction c.
Kaldor-Hicks i.
Efficient if you have more winners than losers ii.
Just like Bentham - greatest good for the greatest number (utilitarianism) iii.
Kaldor-Hicks is ok with losers, looks at big picture of regulation d.
Pigou i.
Only legislate when market fails & allows something contrary to society’s long-term needs e.
Wealth Maximization i.
People act in their own interest to maximize personal wealth- produces externalities f.
Coase Theorem i.
Will always be a social cost because people always act in own self-interest ii.
Coase 1: in a perfect market, the more valuable resource will prevail a.
In a perfect market, regardless of whether or not the law favors one party, the market decides a conflict of uses b.
System of entitlements- law creates certain entitlements, favors certain people in certain circumstances
3

c.
Law forces transfers of wealth- what does the market value more (cattle/crops?) iii.
Coase 2: how to incorporate transaction costs into imperfect markets a.
Recognizes that other parties “rides” on others, can have an inefficient result when you have transaction costs- more transaction costs leads to market failure b.
As the number of people goes up, the market may become less of an option because of inefficiency with transactional costs- outcome may change from C.1. g.
God Principle i.
To what extent should God/Moral Code guide decisions as the ultimate policy? ii.
Originally God gave a set of moral codes/laws that transcended man-made laws h.
Hardin i.
Tragedy of the Commons- Without privatization, everyone wants to add a cow to wealth maximize but eventually commons will be destroyed ii.
Commons- clean air, international fisheries, broadcast waves, space junk i.
Calabrisi i.
Says that instead of strict liability, should pick cheapest cost avoider ii.
Hand formula failed to recognize the impact of contributory negligence iii.
Party who is in the best position to avoid injury at the least cost, has the obligation to do so iv.
Common carriers more likely to be cheapest cost avoiders, have expertise, greater access to information can internalize costs, ability to make changes control passenger behavior j.
Expand the Universe i.
Expand universe of calculus by expanding the #/calculus of people who benefit ii.
Barriers aren’t just for the blind people, but for all other citizens, so still efficient k.
Hand Formula i.
Legal liability for harms caused by such negligent conduct depends on whether the aggregate risks (expected losses or costs) created by the conduct are greater than the aggregate utility expected gains or benefits) of the conduct ii.
Owner’s duty is to provide against resulting injuries based on (1-P) the probability that she will break away (2-L) the gravity of the resulting injury and (3-B) the burden of adequate precautions (if B< PL= then you’re liable) iii.
If B < PL, then are negligent - could have avoided accident at a smaller burden iv.
If B > PL, then aren’t negligent because took steps to avoid accidents
D.
NATURAL LAWS a.
John Locke i.
Property originates in some divine creation -Labor of body and work of hands
(excludes right of other man- conflicts with modern era of regulation) What you create is yours by an act of God, if there is enough, and as good left in common for others ii.
Neo-Lockians: narrow view of what government can do without compensations- believe in Locke’s Proviso- Leave as good and enough for others iii.
The right to property became the basis of legal doctrine- labor theory:
1.
All property was given to you/ability to get property, given to you by God
(Supports takings clause- gov’t can’t take without compensation) b.
Hobbes i.
Hobbs thought that state was like Leviathan (a giant) ii.
Natural rights (derived from God), but society is the creation of man, waive rights in man-made society (no way to exercise right of property in state of nature) iii.
Property requires a sovereign with protection and security- when society is created, we relinquish something natural
1.
We agree, that in exchange for all the good things of the sovereign (like security) we relinquish the right to do certain things (right to kill) c.
Neitzche : God was necessary to create society, necessary to enforce our laws i.
Purpose of law is morality and best enforcement is God ii.
But then we “killed God” because we no longer needed him
4

iii.
No longer need morality to govern society because legal theories have supplanted the
God principle
I.
INTENTIONAL TORTS a.
Need to show desire to commit/produce the legally forbidden product i.
OR act knowing that the legally forbidden product is certain to occur ii.
Transferred intent- (legal fiction) if you intend to do something that is illegal, but to a different person: successful if the chain of causation is short and clear iii.
Causation for intentional torts: if you cause the result directly or indirectly : still liable iv.
You’re the cause if you set in motion a force that causes the contact b.
Intent : A person acts with the intent to produce a consequence if: (a) the person acts with the purpose of producing that consequence OR (b) person acts knowing that the consequence is substantially certain to result i.
Garrett v Dailey - knew old lady would fall on floor if the little boy pulled the chair ii.
Classic intent (purposefully), substantial certainty (knowingly/recklessly), substitutions for intent (violate statutes/rules), or transferred intent iii.
Transferred intent: invoked where tort intended and tort that resulted were: assault, battery, false imprisonment, trespass to land or trespass to chattels (big 5) c.
Assault i.
Reasonable apprehension of an imminent battery ii.
Test: Defendant acted intending to (1) cause a harmful or offensive contact with the person, (2) or an imminent apprehension of such contact , (3) and the other is thereby put in such imminent apprehension
1.
Mere words lack immediacy- verbal threat without physical conduct/gesture isn’t assault, and conditional threats aren’t assault – need an overt act
2.
Even if there is a menacing gesture, if the words negate the immediacy of the gesture- might not be an assault
3.
Real threat, but promise action in the future- not assault
4.
D must be aware of the threat (not aiming gun at him while his back is turned) iii.
Use reasonable person test- apparent ability can create a reasonable apprehension
(unloaded gun) if a reasonable person would have thought it was loaded iv.
Example: if someone threatens to shoot you, but gun is unloaded, but you don’t know it’s unloaded, then still an assault v.
Damages : Don’t need to prove- P can recover nominal damages, and punitive if malice d.
Battery i.
A harmful or offensive contact : protects the integrity of the body ii.
Show: An actor is subject to liability if he (1) acts intending to cause a harmful or offensive contact or an imminent apprehension of such a contact AND (2) a harmful contact with the person of the other directly or indirectly results
1.
Harmful - hurts the person, Offensive - offends a reasonable sense of dignity
2.
Plaintiff’s body- includes whatever plaintiff is holding
3.
Plaintiff doesn’t have to be aware of contact (unconscious patient in surgery) iii.
Have long limits- hit your dog while you’re walking it, battery iv.
Damages
: Can recover nominal damages even if didn’t suffer, punitive if D had malice e.
False Imprisonment i.
An act or omission that confines or retrains plaintiff to a bounded area ii.
Show : Defendant acted intending to (1) confine the other (2) within boundaries fixed by the actor, and (3) the act directly or indirectly results in such confinement , (4) and the other is conscious of the confinement or is harmed by it.
1.
If not done intentionally, doesn’t make you liable, but if it imposes a risk of imposing confinement, is negligent - even though not intentional iii.
Plausible threat is an act of restraint
1.
I’m going to kill your son Billy if you leave this room, but door is open- F.I.
5

2.
Test : is the threat plausible to a normally person? iv.
Shoplifting: Suspected shoplifters can be held for a reasonable time in a reasonable place and manner (shopkeepers privilege)
1.
Threat to call the cops if you leave- probably enough for false imprisonment
2.
But depends on the person- if they’re timid, would work as an act of restraint, but if it’s a lawyer, might not be as threatening
3.
Must prove that there was (1) a reasonable belief of theft, (2) detention was conducted in a reasonable manner, and (3) plaintiff kept for a reasonable time v.
Failure to act can be an act of restraint as well if the defendant owes the plaintiff some kind of duty to facilitate their movements (not unlocking car door to let the person out) vi.
If plaintiff isn’t aware of restraint or suffers no harm because of it, then no tort vii.
No FI if there is a future threat against person/family/property viii.
Bounded area: can be marked by verbal terms of a threat “if you leave the store then I’ll call the cops”
1.
FI because you define the area, even if it has open doors or windows
2.
Coblyn v. Kennedy’s
: If a man is restrained of his personal liberty by fear of a personal difficulty, that amounts to a false imprisonment (shoplifter) ix.
Area isn’t bounded if there is a known and reasonable means of escape
1.
Don’t have to go out sewer-, don’t know about trap door- still F.I. x.
Damages : No need to prove damage to get nominal damages- show malice for punitive f.
Intentional Infliction of Emotional Distress i.
Extreme and outrageous conduct intended to cause severe emotional distress ii.
Show : (1) One who by e xtreme and outrageous conduct intentionally or recklessly causes severe emotion distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm
1.
(2) Where such conduct is directed at a third person , the actor is subject to liability if he intentionally or recklessly causes severe emotional distress a.
(a) To a member of such person’s immediate family who is present at the time, whether or not such distress results in bodily harm or b.
(b) To any other person present at the time, if distress results in body harm iii.
Used to be considered a “parasitic tort” that needed physical injury, but not anymore iv.
D must engage in outrageous conduct that exceeds all bounds of decency tolerated in a civilized society and P must suffer severe distress
1.
Wilkinson v. Downton : Pranked that husband died, she got sick v.
If you know of P’s sensitivity and use it to cause distress, IIED (exception to Eggshell) vi.
Outrageous conduct: The more indicators of outrageousness that are present, more likely that the conduct will be seen as outrageous
1.
Look at: high and low power, physical power, repetitive conduct
2.
Ex: lying to a person saying their daughter died vii.
Liability to a Bystander
1.
Bystander Closely Related to Target a.
Bystander present when injury occurred to target b.
Defendant knew bystander was so related to target
2.
Bystander Not Closely Related to Target a.
Bystander present when injury occurred to target b.
Bystander suffered bodily harm viii.
Handling Corpses: Heightened liability: loved ones are in heightened emotional states and so negligence and emotional distress is more outrageous/ extreme ix.
Damages : Don’t have to prove injury, show you suffered severe distress g.
Trespass to Land i.
Physical invasion of plaintiff’s real property
6

ii.
Test : Subject to liability, irrespective of harm to property if (1) he intentionally enters the land of the other , or (2) remains on land past invitation or (3) fails to remove from land a thing he had a duty to remove (ex: cattle)
1.
Interferes with a person’s exclusive right to that property iii.
If it wasn’t your purpose to enter land- like if you involuntarily were taken to the land- not your volitional movement to be taken there, so not intentional iv.
Real property includes air and subsurface space to height or depth usable by plaintiff v.
Dougherty v. Stepp : Surveying the land, but did not damage: still trespassing
1.
Damages for trespass depend on the action done on the property, but every unauthorized entry into the “close” of another is unlawful vi.
Also trespassing if you throw something tangible onto another’s land
1.
Bright lights shine onto neighbor’s property- nuisance but not a trespass vii.
Damages : Don’t need to prove injury to land for damages h.
Trespass to Chattels i.
Interference with plaintiff’s right of possession ii.
Test : Intentionally (1) dispossessing another of the chattel, or (2) using or intermeddling with a chattel in the possession of another
1.
Interferes with person’s right to possess property (intermeddling, dispossession) iii.
Crime of theft, take an object without the owner’s permission-must affect some other and more important interest of the possessor (must prove actual damage) iv.
One who intentionally intermeddles with another’s chattel is subject to liability only if his intermeddling is harmful to the possessor’s materially valuable interest in the physical condition/ quality/ value of the chattel, or if the possessor is deprived of the use of chattel for a substantial amount of time v.
Damages : Nominal damages not awarded unless proof of actual damage, but in case of dispossession, loss to chattel is evidence enough of damage i.
Conversion : i.
Serious invasion of or interference with plaintiff’s right of possession that amounts to total loss of the chattel ii.
Show : a voluntary act by one person inconsistent with the ownership rights of another iii.
Other person damages your property so much that you want value of the property, not the property itself, examples: a.
Wrongful acquisition (e.g. theft, embezzlement) b.
Wrongful transfer (e.g. selling, mis-delivery) c.
Wrongful detention (e.g. refusal to return to owner) d.
Substantial change e.
Severe damage or destruction f.
Misuse of chattel iv.
Conversion is a strict liability tort ( Moore v. UCLA - don’t want to extend liability to medical practitioners)- even person who buys stolen goods can be liable for conversion v.
Crits would say that the court is protecting one of the biggest economic interests in the state- have vs. have-not’s (P doesn’t have to take it back once it’s converted) vi.
Damages: P entitled to fair market value of chattel (at time and place of conversion) j.
Intentional Nuisance (Private Nuisance): i.
Show: Conduct is (1) a legal cause of an invasion of another’s interest in the private use and enjoyment of land, and the invasion is (2) intentional and unreasonable, or (3) unintentional and otherwise actionable under negligent/reckless conduct ii.
Intentional if the actor acts for the purpose of causing the interference, or knows that it will result or is substantially certain to result
II.
STRICT LIABLITY & NEGLIGENCE a.
Strict Liability: Defendant prima facie (what at first glance seems to be sufficient) liable for any harm that he causes to the plaintiff’s person or property
7

i.
D has an absolute duty to make safe, a breach of that duty, breach was the actual and proximate cause of the injury, damage to P’s person or property ii.
Absolute duty to make safe, but only to foreseeable plaintiffs
Animals i.
Owner strictly liable for reasonably foreseeable injuries from trespassing animals ii.
Domesticated animals - negligence standard unless owner knows or has reason to know that the animal has abnormally dangerous propensities- then strict liability i.
Display animus riven tendi - habit of returning, owner needs to have dominion and control over the animal ii.
Gehrts v. Bateen : When owner didn’t
know of animal’s dangerous propensities- negligence standard of foreseeability will be applied iii.
Wild animals - Strictly liable for personal injuries if in your possession i.
By statute or animus resuntendi
, or if you’re inducing onto your property ii.
But negligence standard for a zoo iii.
Only licensees or invitees- no S.L. for trespassers- they must prove negligence
1.
Unless- killer guard dogs- seen as a death trap like Kato v. Briney
Ultra Hazardous Activities iv.
Even if you can prove a substantial degree of care, still responsible for dangerous activities that impact your neighbor (dams, blasting, chemicals, etc.) v.
Dangerous if: i.
(1) High degree of risk of some harm to others no matter what care exercised ii.
(2) Likelihood that the harm that results will be great iii.
(3) Extent to which the activity is not a matter of common usage iv.
(4) Inappropriateness of the activity to the place where it is carried on v.
(5) Extent to which its value to community is greater than dangerous attributes vi.
Fletcher v. Rylands : Man-made dam releasing water, damaging P’s land: Person who brings on his lands and keeps anything like to do mischief if it escapes must keep it in at his peril, and if he doesn’t, he is prima facie answerable for all the damages which is the natural cause of its escape vii.
Rylands v. Fletcher : If damage is done from an act of god, the defendant is not liable, but if it is done from the defendant acting in any other way than a normal usage of the land, then he is liable for the damage (Blackburn)
1.
Dam was considered an ultra hazardous activity viii.
Holmes, The Common Law: So for every voluntary act that results in harm, the perpetrator is liable irrespective of any negligence toward the injured party
1.
Based on principle that every man has the right to his person free from detriment at the hands of his neighbors
2.
BUT - only liable if the dangerous activity cased the harm- not the truck carrying explosive materials blew a tire and hit you- only if chemicals exploded b.
Negligence: allows plaintiff to recover only if (intentional harms aside) the defendant acted with insufficient care i.
Test
: (1) the foreseeable likelihood that the person’s conduct will result in harm, (2) for the foreseeable severity of any harm that may ensue, and (3) the burden of precautions to eliminate or reduce the risk of harm
1.
Negligent if: person doesn’t exercise reasonable care under the circumstances ii.
Brown v. Kendall : Hit friend in eye while trying to hit dog: If it the act was unintentional, and done while exercising due care, then the burden of proof was on P to prove that there was a lack of reasonable care by the D iii.
Stone v. Bolton : Cricket ball out of bounds: If D reasonably knew that damaging event would occur, and didn’t prevent it, they are responsible for resulting damages
1.
BUT: If a reasonable man would disregard such a small risk, then there is no negligence (crits view- favoring the wealthy cricket club, they’re CCA)
8

iv.
Hammontree v. Jenner : D had seizure while driving: Thee driver is only liable if the seizure is foreseeable and he took no special actions to prevent it. D did not have a reason to expect to have a seizure and was therefore not liable v.
EXCEPT: Fletcher v. City of Aberdeen : Blind guy fell into hole: Physically disabled people are required to use the care that a reasonable person with their disability would use under the circumstances. The city has to give enough protection to warn people with those disabilities about the danger. vi.
EXCEPT: Robinson v. Pioche, Bayerque & Co: Drunken man still entitled to a safe sidewalk: Can’t use drunkenness as a defense to contributory negligence vii.
Just because there is an injury doesn’t mean that someone was in fault- court can still find that you acted reasonably in doing what they did
III.
NUISANCE a.
Private Nuisance i.
Substantial, unreasonable interference with use and enjoymen t of property
1.
Two conflicting uses that you should allow the market to determine
2.
What would be offensive, annoying, inconvenient to an average person? ii.
Test : Use objective standard of what would be a nuisance to person of ordinary prudence?
1.
Eggshell Thin Skull doctrine doesn’t apply in nuisance iii.
Also for utilitarianism - most nuisance cases come down to section f for ultra hazardous activities- what’s the value of both activities to community? What’s higher?
1.
Fountaiebleau Hotel- Property is useful and beneficial to the public, so even if the addition is constructed out of spite, can still construct because it’s useful a.
Nuisance = interference with use and enjoyment b.
Trespass = interference with exclusive possession iv.
Legislature can adopt exemptions from nuisance- sometimes adopt a public policy that private interests must endure some inconvenience for general population to get the benefits of the utility v.
Use must produce a tangible and appreciable injury to neighboring property or such as to render its enjoyment specially uncomfortable or inconvenient
1.
Spite fences usually not ok, but if useful, might be allowed under live and let live vi.
Michalson v. Nutting : Can’t make neighbor cut down trees encroaching in their yard neighbors have reciprocal harms b.
Public Nuisance i.
Unreasonably interferes with health, safety, or property rights of the community ii.
Not all states allow private rights of action for public nuisance
1.
Private action maintainable only for “special” or “peculiar” or “disproportionate” harm to the individual plaintiff separate from those felt by community iii.
The more common the problem, the less likely someone is able to litigate it iv.
Anonymous : Have to prove that one man suffered more than another from blocked access to road, otherwise can’t sue because everyone could sue v.
Beretta : Rejected public nuisance because Beretta lacked the exclusive control over the nuisance required for it to be abated vi.
Public nuisance is an unreasonable interference with a right common to the general public- defendant must exert control over the source of the nuisance vii.
Remedies: injunctive relief, damages c.
“Coming to the nuisance” isn’t complete defense i.
If nuisance takes away from new homeowner’s enjoyment of land (feedlot,
Ensign v.
Walls - St. Bernard dogs), still have to stop or compensate for loss of enjoyment ii.
Is use of the area appropriate (under the circumstances)?
iii.
Purchaser is entitled to reasonable use or enjoyment of his land
9

d.
Remedies i.
Injunctive relief- making them stop e.
Takings Clause i.
A takings if the law reduced the value or use your property significantly ii.
If something is considered a nuisance, and you’re prevented from doing it, then not a takings, because no right to do that activity in the first place iii.
Eminent domain- government takes your property, but they pay you for it so not unconstitutional- and it’s in the public interest
IV.
AFFIRMATIVE DEFENSES a.
Shift from liability for misfeasance (misdeeds) to liability for nonfeasance (failure to act) b.
Consent i.
To a willing person, no injury is done, but did P have legal capacity to consent?
1.
Except : minors (can consent to age appropriate invasions), incompetents, criminal acts, mistake, fraud, coercion/duress, exceeding consent given
2.
Except
: Consent is invalid if the law that’s violated is in place to protect that group (statutory rape- consent is invalid) ii.
Express consent : literal statement granting a person to act in a way that otherwise would be considered a tort
1.
Sometimes see an express consent procured through fraud or duress- that express consent is negated by fraud or duress
2.
The omission of important piece of data or misrepresentation of a key fact (I’m a doctor, can I do surgery on you? Yes. But not really a doctor, consent by fraud) a.
Mohr v. Williams : Exceeded consent- consented to surgery on one ear, but not the other: Performing a surgery other than the one consented to by the patient characterizes assault and battery and is unlawful
3.
Except : a.
Emergency rule - most common way to act without consent, is to claim an emergency, generally an “imminent threat to life or serious bodily injury” b.
Substituted consent - Get consent from someone who is in a legal position to do so (guardian, spouse, parent)
4.
Scope of consent: Kennedy v. Parrott : Hit vein during surgery, patient was unconscious, no family nearby, did added surgery even though no consent- ok because during internal operations doc can’t be found for trespass although the patient is unaware of the action- for the patient’s benefit
5.
Substituted Consent for the Benefit of Others: a.
Lausier v. Pescinski - can’t remove the kidney of an incompetent to save the life of a family member without the “guardian’s” consent b.
Strunk v. Strunk - can donate an organ with “guardian’s” consent c.
Parents or guardian. But adult child > parents iii.
Implied consent :
1.
Implied by custom/common practice: go into store that is private property
2.
Not trespassers to walk to your door to ring the doorbell
3.
Not a battery to get elbowed in basketball- common practice
4.
O’Brien v. Cunard Steamship
- Giving a vaccine: Doctor was following her
“overt acts and manifestations of her feelings” c.
Insanity i.
In general, insane persons are liable for their intentional torts ii.
McGuire v. Almy : Where an insane person by his act does intentional damage to the person or property of another, he is liable for that damage in the same circumstances in which a normal person would be liable iii.
Exception: Breunig : Insanity can be used as a defense if the jury believes that the defendant had no reason to believe an “attack” would occur
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d.
Minors i.
Under 7 = not liable b/c incapable of negligence (based on capacity) ii.
7 – 14 = rebuttable presumption of no liability
1.
Can show the jury that he knows that this was an unreasonable action, but the burden of proof is on plaintiff- still in defendant’s favor iii.
Over 14 = rebuttable presumption of liability
1.
Presumption of capacity for negligence- Flips back on defendant- burden of proof on defense to prove he isn’t capable iv.
Exception: adult activity rule e.
Defenses i.
Self Defense
1.
For protective privilege, need: (1) timing, (2) reasonable belief as to (3) necessity of action and (4) degree of force a.
Timing- acting in the heat of the moment- imminent or in progress threat b.
Reasonable belief- won’t be liable if the mistake of threat is reasonable
2.
Rule of Proportionality: Respond with force necessary – they attack with a gun, you attack with a knife
3.
Initial aggressor can’t use self-defense to justify other party’s retaliation of force a.
Courvoisier v. Raymond: Shot cop, after robbers robbed his store: If one believes his life is in danger he is justified in using self-defense, even against an innocent victim, if he reasonably believes that victim posed an immediate danger to him
4.
Hobbes - when we leave the state of nature, we give up the right to do violence, so privilege is taking back some of the rights you gave up when entering society
5.
Duty to Retreat a.
Usually no duty to retreat (unless you’re the aggressor), some require it if you can do so safely, BUT Castle Doctrine - no duty to retreat in your home/curtilage ii.
Defense of Others
1.
Reasonable belief that other would have the privilege of self-defense
2.
Same limits as if defending self (necessity, proportionality, immediacy) iii.
Defense of Property
1.
Reasonable force to prevent commission of tort against property
2.
Can never use deadly force to protect property- disproportionate a.
Defense of property is superseded by public/private necessity
3.
Kato v. Briney : trap gun to defend property, shot off legs- excessive force
4.
Exception: Castle Doctrines - “make my day stakes” a.
Don’t have to establish actual threat- can kill unarmed intruder, as long as you thought they were a threat in your home, they were, you’re justified
5.
Common law allows some battery- mali manus “to lay gentle hands upon” someone to get back your property but you can’t use a level of force that will result in serious bodily injury or death
6.
Can’t forcibly regain property from someone who thinks they have it rightfully f.
Public and Private Necessity i.
Invasions of others property is allowed when necessary to avoid threatened injury from a natural or other source and where threatened injury is more serious than invasion ii.
Public - D invades property in an emergency to protect the community as a whole
1.
Public necessity is an absolute defense - no liability
2.
Start fire on private property to create a fire wall, but burn his house
3.
Get insurance to protect from people destroying your property under public necessity and not entitling you to recovery iii.
Private - Defendant invades property in an emergency for a self-interested reason
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1.
Incomplete defense- not absolute- provides immunity against technical liability, no nominal/ punitive damages, but liable for any harm caused a.
Caught in snowstorm, knock on door, technically trespassing, but b.
Can’t throw someone back from cabin into a storm, allowed to be there until the emergency is over
2.
Vincent v. Lake Erie : Tied boat down to dock during storm a.
Can stay safely on plaintiff’s land as long as emergency lasts
3.
Ploof v. Putnam : Using your dock to land my ship in a storm a.
You tie on a dock, they untie you, you are liable for the damage that you cause them, but they can’t make you leave during storm g.
Immunity i.
Federal Torts Claims Act- immunity, including for discretionary authority
1.
Ex: Waco Texas Raid ii.
Feres Doctrine : Can the military be sued by military personnel for negligence
(peacetime), gov’t claims that everything they do is wartime function, even in peace iii.
Say that it’s bad for discipline to allow military personnel to sue their superiors h.
Assumption of Risk i.
Standard ( Knowledge of risk & Voluntary assumption of risk) ii.
Express ( Exculpatory clauses in adhesion contracts) iii.
EXCEPT
1.
Common carriers may not exculpate themselves
2.
Members of protected class under statute
3.
Fraud, Force, Emergency, Intentional torts
V.
THE NEGLIGENCE ISSUE a.
Requires all people to take risk reducing precautions in our daily activities b.
Test : (1) duty of care, (2) breach of duty, (3) breach was the actual and proximate cause of injury, (4) damage to plaintiff’s person or property i.
Duty:
1.
Did the defendant owe the plaintiff a duty to conform his conduct to a standard necessary to avoid an unreasonable risk of harm to others?
2.
Must take the amount of precautions as would be taken by a reasonably prudent person acting under similar circumstances a.
Same standard for all activities- under those circumstances
3.
In general, only owe a duty of care to foreseeable plaintiffs
4.
How many risk-reducing precautions are needed? a.
Depends on circumstances- speeding ok? Rain or snow? b.
Standard of care of “reasonable under the circumstances” is the same, but the degree of care changes with the circumstances c.
D with superior knowledge is required to use that knowledge d.
Medical Professionals: Must acquire informed consent e.
Children Standard: a child of like age, education, intelligence , and experience (i.e. subjective standard) ii.
Breach:
1.
Did the defendant’s conduct, by way of act or omission, fall below the applicable standard of care?
2.
Defendant breached the standard of care by __. This is unreasonable because reasonable people ____ .
3.
Breach of duty involves identification of wrongful behavior
4.
Then must explain why the conduct falls short of the standard iii.
Causation:
1.
Was the defendant’s failure to meet the applicable standard of care causally connected to the plaintiff’s harm? (Cause in fact and legal cause)
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2.
Proximate cause (legal cause) that would leave defendant liable to plaintiff
3.
Was the intervening cause foreseeable? iv.
Damage:
1.
Did the defendant suffer any harm?
2.
Eggshell Thin Skull Principle-
3.
Once the defendant has committed all the other elements of a tort, they are responsible for all damages suffered by the plaintiff, even if they’re surprisingly great in scope
4.
Take your plaintiff as your find them Vosburg v. Putney - liquidated leg
VI.
DUTIES OF CARE a.
Foreseeable Plaintiffs i.
Have a duty to protect the foreseeable plaintiff from injury b.
The Reasonable Person i.
Reasonable Person Standard: even if you are stupid, still liable
1.
Vaughan v. Menlove : Said he was too stupid to know the hay would catch fire, didn’t matter- was held to the reasonable person standard (despite any disability) ii.
Reasonable person is the standard of a reasonable, ordinary, prudent person
1.
Everyone has duties to everyone else in society, but want to lower the chances of hurting someone- need to take effort to lower risk iii.
Considered person with same physical characteristics ad defendant
1.
Assumed to have same knowledge as others in the community
2.
Individual mental handicaps aren’t considered
3.
Except : May be negligent for an epileptic person to drive iv.
Except : If the person has higher than normal skill, knowledge held to higher standard
1.
Reasonable person with similar skill or intelligence- standard goes up, not down
2.
If you’re a race car driver, need to use all you know to drive a car reasonably
3.
Even if you’re stupid, but know of dangerous conditions on one part of the road from experience, held to higher standard
4.
Physical condition: reasonably prudent blind person standard v.
You will be held to the standard that they set themselves out to be- if claim that you’re a doctor, held to a reasonable doctor’s standard of care vi.
Lawyer’s job is to create a model of a reasonable man to compare with client vii.
Beginners usually held to the same standard as someone reasonably practiced in the art c.
Children i.
Under certain ages, don’t owe anyone a duty of care (usually under 7 years old) ii.
Behave according to what is reasonable for a child of similar age, experience and intelligence/maturity as a child in similar circumstances iii.
All have subjective standard of care- not objective like adults (pro-defendant) iv.
EXCEPT: If the child is engaged in adult activity, then they are held to the objective adult reasonable under the circumstances standard
1.
When a minor undertakes an adult activity and imposes danger to others and himself, minor’s conduct should meet the same standard as an adult d.
Professionals i.
Different standard of care for people who are professionals (doc, chiropractor) ii.
Hurley v. Eddingfield : Doctor does not have a duty to help because it’s not the doc’s duty to respond any more than it is the duty of a lawyer to take any client iii.
Professional must provide that degree of care that is given by the average member of the same profession providing the same service iv.
In malpractice, compare the defendant to real world colleagues- not an imaginary reasonable person (either in his community or across the boards)
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v.
Evidence of what is customarily done is an indication of what reasonableness requires normally, but in malpractice, evidence of what is normally done is the standard of reasonable care (usually through expert witness) vi.
Sometimes standard of other professionals in the same community, others say nationwide, some from similar communities, depends on jurisdiction
1.
Lama v. Borras : Should have bed-rested before back surgery, unreasonable vii.
Duty to disclose :
1.
Have to provide patient with enough information about risks to enable the patient to make an informed consent to the treatment e.
Premises Liability- Duty of Owner/Occupier i.
Duty of care owed by land owner to protect/warn entrants of dangerous conditions ii.
Person on land gets hurt by a stationary hazardous condition on land iii.
Increasingly broad level of protection as we move from groups iv.
Person loses their status as a licensee or an invitee if they overstay their welcome v.
Tenant remains liable to invitees/licensees, landlord liable for dangerous conditions too
1.
Invitees : Highest duty of care a.
Invited for a purpose connected with business of landowner for economic gain, or the land is open to everyone in the public at large (museums) b.
Protect against (1) concealed hazardous condition, and (2) that possessor knows about, or (3) could have discovered through reasonable inspection c.
Possessor must protect invitee from all reasonably knowable traps on land- make safe those dangerous conditions (warn or fix)
2.
Licensees : Middle duty of care a.
On land with owner’s permission, but don’t confer economic benefit on the owner real estate. Like a social guest (includes police/firefighter) b.
Possessor must protect a licensee from any condition that is (1) concealed from the licensee and (2) known by the possessor c.
No duty to inspect, and no duty to repair known dangers d.
Rowland v. Christian : Cut hand on porcelain, owner owes ordinary duty of care to all people on his premises
3.
Trespassers : No/little duty of care to trespasses a.
No duties owed to undiscovered trespassers b.
Unless you know that they’re there, or should expect them to be there, and don’t make them leave (tolerated trespasser might become licensee) c.
Exception: Attractive Nuisance i.
Inherently dangerous condition on land that D knows/should know ii.
Owner knows that children frequent vicinity of dangerous area iii.
Condition is likely to cause injury (dangerous in and of itself, or kids can’t appreciate the risk) iv.
Reasonably feasible to render condition safe (proportionate cost) d.
Discovered trespasser : duty to warn/make safe if (1) condition is artificial , (2) condition is highly dangerous , (3) condition is concealed from person, and (4) defendant knew about dangerous condition e.
No duty to warn from open and obvious conditions/ natural cond (lake) f.
Anticipated trespasser : treated the same as discovered trespassers-
Defendant knows or should reasonably know trespassers are there g.
Robert Addie v. Dumbreck : Machinery attracted kids, knew kids were on the property, didn’t make them leave- liable to “trespassers” h.
NY Subway Alley Users : constructive easement if using it regularly vi.
Ways to satisfy the duty of care: Either fix the broken stair, or warn of danger f.
Statutory Duties and Negligence Per Se i.
In normal negligence cases, jury has a great deal of discretion - decides if behavior was reasonable or not- provides for individual circumstances
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1.
Presence of a regulation doesn’t mean satisfaction of that means you’re being reasonable, but if you violate it, you are per se unreasonable ii.
Statutes make more objective standard of care- regulatory law used as standard of care
1.
Use the statute (frequently criminal statutes) in a way that it wasn’t meant to be used (is it really negligent if you don’t stop at the red light?) iii.
Test : Is there a private right of action for this plaintiff?
1.
Is the plaintiff a member of the protected class ?
2.
Does the statute cover the particular harm to be avoided ?
3.
Is a private right of action consistent with the legislative scheme ?
If you meet all three, then statute replaces the reasonable standard of care iv.
When that’s met, statute language will become the standard of care- then it becomes negligence per se if the statute is violated v.
Plaintiff’s prefer statute used as standard- more consistent, takes away question of fact of what is “reasonable under the circumstances” vi.
A statutory duty doesn’t per se grant a remedy to a private person: scoliosis case vii.
EXCEPT: If (1) complying with the statute would be more dangerous than ignoring it
(swerve over line to prevent hitting a kid, but hit parked car), or (2) if complying with the statue was impossible under the circumstances (defendant had a heart attack, swerved and hit plaintiff)
1.
Then you litigate according to the reasonable prudent person under similar circumstances standard viii.
If a violation of statute has no direct bearing on the injury, proof of that violation is irrelevant . Violation of an administrative statute related to licensing of professionals is not negligence per se. The standard of care for an unlicensed party is the same as that of a licensed professional in that field. g.
Duties to Act Affirmatively i.
In general, no duties to act affirmatively ii.
No requirement to drive, but if you do, then need to act reasonably iii.
Because there is no duty to do anything in the first place, no duty to rescue iv.
Except : Duty to act when there is a preexisting relationship between the parties
1.
OR a formal relationship (employer-employee, if you caused the peril) v.
Good Samaritan Statutes: Have exempted licensed doctors who voluntarily and gratuitously render emergency treatment from liability for ordinary recklessness h.
What is the duty then? Rescue reasonably under the circumstances i.
Never required to put yourself at risk of death for rescue ii.
Once you do choose to rescue voluntarily, they will then be held to a reasonable rescue iii.
Rescuer Status: (1) D was negligent to the person rescued, negligence caused appearance of peril to the person rescued, (2) the peril was imminent (3) a reasonably prudent person would have concluded such peril/ appearance of peril existed and (4) the rescuer rescued reasonably ( Wagner - fell off train, danger invites rescue) iv.
Eckert v. Long Island R.R.
: Saved kid from train tracks, when a person puts their life in peril to save property, it’s always reckless, and so can’t recover, but when a person tries to save a life, it’s not negligent unless it’s a reckless choice v.
Gratuitous rescuer is liable for carelessness that causes injury vi.
Yania v. Bigan
: No duty to rescue, if you don’t induce the action- fierce individualism vii.
Some states have Good Samaritan laws- protect gratuitous rescuer from liability
1.
Some only protect from negligence, but not gross negligence, some only protect trained rescuers (paramedics) viii.
Rescues : Reasonableness of a risk depends on the purpose of the actor, nature of his act and the harm that may result from action or inaction
1.
Action is negligent if the expected los exceeds the expected gain
2.
Posner said if it’s a low-cost rescue, should rescue, Feminists argue that no duty to rescue is a male-orientation of the law
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ix.
Duty to Warn:
1.
Montgomery v. National Convoy : Trucks owed a duty to warn others that there was a dangerous situation- made in a manner reasonably calculated to prevent the injury - should have set flares at the top of the hill so that notice could be made in time to prevent injury x.
Special Relationships
1.
Special relationships : Parents might be liable for the acts of their children
2.
Common Carriers : Under a duty to use reasonable care to aid or assist passengers
3.
Create the Risk: Radio DJ defendant created the risk of harm , so liable to injuries received ( Weirum v. RKO )
4.
Landlord-tenants : landlord liable to take steps within his power and capacity to make to protect tenants from foreseeable criminal acts committed by third parties a.
Should make safe common areas- give leasee warning of existing defects
5.
Patient-doctor : Tarasoff v. Regents of UCA : Therapist need only exercise that reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of that professional specialty under similar circumstances
6.
Employer-employee : If you have a worker or injury at the workplace, have to deal with respondeat superior (master-servant law) a.
Whatever an employee does within the “scope” of their employment, employer is liable, unless it is within a “frolic” or “detour” of the employee (ex: Teen Angel ) b.
Respondeat superior cut off with a crime/ intentional tort of employee
7.
Contractual Duty : Usually no tort duty of care for nonfeasance, regardless of whether you promise to undertake the actions gratuitously or for consideration a.
Liability for breach of contract only extends to parties in privity b.
Failure to preform for misfeasance may give rise to violation of duty xi.
Gratuitous Undertaking
1.
Gratuity/bailments- usually result of giving or accepting something that’s not urs
2.
Gratuitous bailment- states have retained a standard of slight due care- if you’re doing it as a favor, only slightest due care
3.
If you offer to do something, bound to do it and liable for whatever happens as a result of your not doing it
4.
If bailee is given goods by thief, liable for conversion if he gives it back, but not liable for conversion if he gives it to the rightful owner
5.
Bailor is not vicariously liable for tortious conduct of his bailee i.
Negligent Infliction of Emotional Distress i.
Whenever D commits a physical injury, usually also creates some emotional harm ii.
Near miss: defendant commits the negligent act and although the plaintiff doesn’t sustain a physical injury, he almost does
1.
Can recover from the stress if the stress results in observable physical symptoms
(heart attack), if no physical symptoms, usually not enough iii.
Mitchell v. Rochester Railway : almost hit by carriage, but didn’t get hit, later had miscarriage- court found not guilty, but might have been settled differently today
1.
Zone of Danger Rule (some courts require physical impact, some held that physical damage can be done by mental injury alone) or Bystander Rule
(witnesses negligent injury to close family member)
2.
Dillon v. Legg : mother and sister saw kid get hit, mom- no, sister-yes a.
Mental injuries are “parasitic” but emotional distress, inflicted intentionally, is an independent tort b.
Determination depends on each case- no easy rule about what emotional damages are foreseeable in all cases c.
If you were in fear of impact, then have a claim
16

d.
Dillion broadened some, but said that a family member close to the accident can sue, or third parties with a physicality element can sue
3.
Relationship Cases: Distress is a highly foreseeable consequence of negligence a.
Dillon Test : Absence of physical injury only recoverable if (1) P is closely related to the injured victim (2) P is present at the scene of injury producing event when it is occurring and is aware that it is causing injury and (3) suffers emotional distress beyond that which would be anticipated in a disinterested witness b.
Engler Test : (1) zone of danger, (2) objectionably reasonable fear for her own safety (3) had severe emotional distress with physical manifestations,
(4) close relationship with third party victim c.
Used to look for physical injury or contact- need physicality for emotional distress claim (blood splatter counts)
VII.
BREACH OF DUTY a.
General Approach i.
Need to state why the behavior breached the reasonable duty owed to plaintiff ii.
Burden of proof is on the defendant if they owe a duty to the plaintiff b.
Res Ipsa Loquitur (the thing speaks for itself) i.
Sometimes plaintiff doesn’t have evidence of what defendant did wrong ii.
Byrne v. Boadle : falling flour hit defendant, couldn’t prove negligence iii.
Ybarra v. Spangard: Hurt shoulder after surgery, prevent “conspiracy of silence” iv.
Aids the plaintiff by allowing proof of defendant’s negligence by circumstantial evidence- P must show…
1.
(1) Of a kind which ordinarily does not occur in the absence of negligence
2.
(2) Caused by an agency/ instrumentality within exclusive control of the D
3.
(3) Other causes eliminated (plaintiff is not at fault) v.
Can get to the jury even when no evidence of breach of duty- Q goes to jury vi.
NOT an automatic victory- defendant can still prove no negligence c.
Statute i.
Violating statute may show negligence, but abiding by it doesn’t always show due care d.
Custom i.
Can introduce evidence that you acted according to custom, but this doesn’t establish a controlling standard of care and showing what’s negligent or not ii.
The TJ Hooper : Didn’t have radios on ship, per se negligent because it was custom to have it, and just because something is universally adopted doesn’t mean it’s reasonable, just because something isn’t adopted doesn’t mean that its unnecessary e.
Non-Delegable Duties: How do you know if you have a non-delegable duty?
i.
Public area (escalator company) ii.
“Dangerous instrumentality” that passes through a third party’s hands before it is used by the plaintiff, can still apply RIL iii.
Independent contractors- bear sole responsibility iv.
BP is shielded from liability from negligence of subcontractors- but victim wants to
“pierce the veil” to sue BP- if they gave supervisory advice v.
Allowed discovery to prove that there was a non-delegable duty- if there was, IC doesn’t shield them from liability
VIII.
CAUSATION a.
After P has established that D has engaged in some wrongful conduct, must next prove that
D’s conduct caused P’s harm (actually and proximately) b.
Factual Cause (cause in fact) i.
Link between the breach and the injury that occurred ii.
But-For Test
: “But for the (breach), plaintiff would be uninjured today”
17

1.
Not defendant as but-for cause- the breach is the cause, not defendant
2.
Rebuttle: “Even-if” argument: Even if I had been watching the road, I had no time to slam on the brakes because you darted out at the last minute
3.
Test
: Was the chain of events that occurred “foreseeable/ natural/probable” for the defendant to be held liable for the ultimate harm? iii.
NY Central RR v. Grimstad: To prove factual causation, you must prove that the harm to the plaintiff would not have occurred absent the defendant’s conduct
1.
But for no life jacket, would he have lived? Maybe not- can’t swim iv.
Defense: any alternative cause? BUT if two or more persons negligent, and plaintiff cannot determine who was at fault, then the burden of proof for causation shifts to each defendant ( Summers v. Tyce - quail hunt, both shot friend in face)
1.
If there are concurrent causes- use the “substantial factor” test v.
Sindel/Market Share
1.
If you’re involved in a DES-type case, defendants have to prove themselves out c.
Proximate Cause i.
Was the defendant’s conduct a substantial factor in bringing about the plaintiff’s harm
1.
Test
: Did the defendant bring about the plaintiff’s harm? ii.
Direct: If an uninterrupted chain of events, if it was foreseeable- liable, if not, not iii.
Indirect: Is there an intervening, superseding force that breaks the causal chain ? a.
Superseding forces break the chain of causation b.
Foreseeable Results by Unforeseeable Forces = D liable c.
Unforeseeable Results by Foreseeable Forces = D not liable d.
Unforeseeable Results by Unforeseeable Forces = D not liable iv.
Foreseeable Results by Foreseeable Forces
1.
Dependent intervening forces are almost always foreseeable
2.
Subsequent medical malpractice, disease, accident ( iff first accident substantial factor in brining about the 2nd), negligent rescue, negligent acts of third person
3.
Efforts to protect persons or property, criminal acts (and intentional torts) of third persons, “reaction” forces (i.e. reaction after gun fired at one’s feet)
4.
Acts of Nature (left a hammer on the roof, wind blew it off and hurt P- D liable)
5.
Independent intervening forces may be foreseeable where defendant’s negligence increased the risk that these forces would cause harm to the plaintiff v.
Defendant is liable for any aggravation of existing harms he caused- just because the extent of the damage is unforeseeable, doesn’t matter ( Vosburg v. Putney melting leg) d.
Merged Causes i.
Two negligent defendants cause a force that creates ii.
So use the Substantial Factor Test : Would each breach by itself have been capable of causing the injury to the plaintiff?
1.
Negligent campfires- two merged forest fires: individually they would have caused the same social harm (destruction of plaintiff’s home)
2.
If two wrongdoers, and their negligent acts unite and cause the injury, each is held liable for the entire damage ( Kingston- fire caused by RR and unknown)
3.
Should apportion harm when you can decide what portion was caused by which defendant (cattle damaging crops- who had more cattle) iii.
Market Share/Sindel Liability ( Skipworth )
1.
Market share liability theory is an exception to general rule that P must establish that D proximately caused his or her injury
2.
Ensures that each manufacturer’s liability would approximate its responsibility for the injuries caused by its own products
3.
Need to prove a.
(1) Absence of records- don’t kno who caused injury, know all could have b.
(2) Identical Manufacturing (fungible) (same DES chemical composition) c.
(3) P was not expected to know which manufacturer produced the drug
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4.
Need to join all parties to get 100% of your injury- if only sue one company who had 10% of market share- then only get 10% of injury costs e.
Alternative Causes i.
Two defendants’ commit negligent acts, but only one of the acts caused the injury, and we don’t know which one ii.
Summers v. Tyce : Hunting quail, both shoot pellet in same direction, hit friend iii.
Responsibility is on the defendant to say why he isn’t liable, but if neither can prove that they didn’t do it, then they are jointly liable
IX.
PROXIMATE CAUSE a.
P must show that he was a foreseeable victim & sustained a foreseeable type of harm b.
Ryan v NY Central RR : Every person is liable for the consequences of his own acts, he is liable in damages for the proximate results of his own acts, but not for remote damages i.
If person sets their house on fire, then probable and expected for it to burn down, but don’t expect your neighbor’s house to burn - each man runs the hazard of his neighbor c.
Is the plaintiff foreseeable? d.
Phalsgraf : pushed man onto train, fireworks exploded, girl down train was hurt- court held that she couldn’t demonstrate the right to recovery because she was an unforeseeable victim i.
No duty to protect someone who is far away- unforeseeable to be hurt ii.
To be a proximate cause of injury, P must demonstrate they were a foreseeable victim iii.
Rule for Foreseeability of Plaintiff : ( Phalsgraf fireworks rule)
1.
(1) Andrews- a.
Defendant owes a duty of care to ANYONE who suffers injuries as a proximate cause of defendant’s breach of duty to SOMEONE b.
Clear chain of causation from act of negligence to Palsgraf’s injury c.
Explosion caused scales to fall- so within zone of danger
2.
(2) Cardozo a.
Defendant owes duty ONLY to the people in “zone of danger” b.
Who could be hit by the explosive? That’s the zone of danger c.
Negligence needs to be directed at a specific person d.
Zone of Danger determined by reasonable person- who was in snapshot? e.
Polemis : Dropped a plank down into the hull, spark caught ship on fire i.
Rule: D can be held liable for all consequences flowing from the wrongful conduct regardless of how unforeseeable f.
Wagonmound : oil on water, spark lit cotton, ignited water and burned ship i.
If there is a change of harm that is not foreseeable and not the natural consequence of the action, then it cuts off the chain in causation- Defendant no longer liable ii.
Rule for Change of Harm :
1.
(1) Polemis rule- most permissive change of harm. Liable if there was (1) an act of negligence and whether (2) the act was a direct cause of the injury not whether the harm was foreseeable a.
Injury can be caused by unforeseeable harms as long as there is a direct relationship between action and harm- fact for the jury
2.
(2) Wagonmound/ Foreseeability Test: a.
More likely to see liability cut off if there is a change in harm b.
Negligent actor is held liable for all consequences that could have reasonably be foreseen from his action
3.
Could argue either way by expanding the zone of danger g.
The breach of serving bad shrimp was not a proximate or legal cause of the broken arm for which the restaurant should be held liable. h.
Marshall v. Neugent : Car blocked road, plaintiff injured while directing traffic: Any extra risk created by a negligent tortfeasor is the proximate cause of P’s injuries if its reasonably foreseeable (expect him to help to move car so he can keep going)
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i.
What situation you set up after that accident is your responsibility too i.
Intervening Causes: i.
Third Person: The act of a third person intervening and contributing a condition necessary to the injurious effect of the original negligence, will not excuse the first wrongdoer if such act ought to have been foreseen ( Brower cider thief) ii.
If you leave someone in a weakened condition, then you’re liable for his resulting injuries- ex: doctor messed up cast, he tripped on crutches and broke an arm, etc.
X.
Negligence Damages and the “Eggshell Thin Skull” a.
Take your plaintiff as you find them- not limited to negligence b.
But for every tort? But for nuisance, you look at how a reasonable person would react c.
An actor’s liability is limited to those physical harms that result from the risks that made the actor’s conduct tortious d.
Need to prove damages for negligent cases- aren’t presumed like in privacy/defamation e.
Economic Damages: medical expenses, lost earnings f.
Non-Economic Damages: Pain and suffering g.
Can also recover for fear of future disease ( Herskowitz ) h.
Can get punitive damages if defendant’s conduct was wanton/willful, reckless/malicious i.
No recovery for attorney’s fees, interest from date of personal injury for negligence
XI.
Defenses to Negligence a.
Contributory: Defendant is always entitled to show that the plaintiff did not exercise proper care for their own safety (reasonable care under the circumstances)
1.
Not a defense to strict liability
2.
Contributory negligence is never a defense to an intentional tort ii.
Common law- if you were contributorily negligent, you couldn’t recover at all except iii.
Last Clear Chance : Person who had the last clear chance to avoid an accident and didn’t is liable for negligence- plaintiff’s rebuttal against defense of contributory negligence
1.
Helpless Peril - P through contrib. negligence (1) put himself in a dangerous situation from which he couldn’t escape, and (2) D knew/should have known
2.
Inattentive Peril - Through P’s own negligence is (1) in dangerous situation from which he could save himself if he were attentive and (2) D actually knew of P’s situation iv.
Doesn’t matter if you’re 1% or 51% contributorily negligent- barred unless LCC b.
Comparative Negligence: i.
Trier of fact weighs plaintiff’s negligence against that of defendant and reduces plaintiff’s damages accordingly [last clear chance rule not used in comparative jur’s] ii.
Partial - Most jurisdictions will still bar plaintiff’s recovery if they’re over 50% at fault or some will bar if they’re exactly 50% at fault, if under 50%, then recovery permitted
1.
Complete bar for contributory negligence in partial jurisdictions if over 50% iii.
Pure - Will allow plaintiff to recover for whatever percentage they weren’t at fault
(even if they were 90% responsible, can still sue defendant for 10% of damage
1.
Contributory negligence is never a bar in pure jurisdictions iv.
Contributory negligence is never a defense to strict liability c.
No defense : i.
Contributory negligence isn’t a defense if their negligence violated a statute designed to protect that class of plaintiff (school zone speeding, kid jumps into road, not contributorily negligent because the school speeding zone was set up for the kid’s protection) d.
Assumption of the Risk i.
P must have known of the risk and voluntarily assumed it ii.
Express : Complete defense to plaintiff’s claim of negligence
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1.
Complete bar to recovery for strict liability (can’t recover if you were passing the dynamite truck on a curvy road and you swerved so it turned over and exploded) iii.
Implied : Complete bar to recovery for contributory states
1.
No defense for comparative fault jurisdictions
2.
Complete bar to recovery for strict liability analysis iv.
Except :
1.
Can’t assume the risk for a common carrier- they have to protect you
2.
When a statute is passed for your protection, you can’t assume risk of breaking it
3.
Assumption of the risk is no defense to intentional torts
XII.
EXPERT TESTIMONY a.
Frye test provides that expert opinion based on a scientific technique is admissible only where the technique is generally accepted as reliable in the relevant scientific community b.
Daubert - Federal rules of evidence allows more cases than Frye standard, judge still gatekeeper, Relaxes barriers to admissibility of scientific evidence
XIII.
PRODUCTS LIABILITY a.
Injuries caused by defective products- consumer products or industrial products b.
Don’t need to show privity c.
Show : i.
Product is defective and unreasonably dangerous to the consumer ii.
Product actually and proximately caused the injury. iii.
Defendant is a commercial supplier iv.
Product reached consumer without substantial change d.
Products liability governs activities of manufacturers & distributors who placed product in the stream of commerce- no longer in possession of the product at time it causes damage i.
Not like abnormally dangerous activities where the defendants have direct control over the activities at the time they caused the injury e.
Defendant’s level of precautions is legally irrelevant- liable for any damage regardless of the precaution you took (strict liability- no privity of contract necessary) i.
Don’t have to sue under strict liability, might sue on breach of warranty or negligence f.
Escola v. Coca Cola : Should use strict liability for manufacturers who put defective products into stream of commerce i.
Manufacturing company would be more effective- cheapest cost avoider, can internalize costs, consumer can’t afford to inspect everyone ii.
Manufacturer assumes absolute liability when an article that he has placed on the market proves to have a defect that causes in jury, when they know it’s going to be used without inspection iii.
Regardless of privity, manufacturer is responsible for an injury caused by such an article to a person who comes in contact with it
Four elements to hold people liable for strict liability for product defects g.
(1) Defendant Must be a Merchant i.
Casual sellers like a garage sale- not a merchant, not strictly liable ii.
Service provider isn’t a merchant of the products (like a hospital that replaces your knee, only sells the service, not strictly liable for viability of knee) iii.
Any merchant in a distribution chain is vulnerable to strict liability cause of action- not a claim limited to the merchant that plaintiff dealt with directly
1.
Can sue both Target and the manufacturer of bad product iv.
Plaintiff has to prove that the product was defective h.
(2) The Product was Defective i.
Three main claims through which you have a valid cause of action ii.
(1) Manufacturing Defect - Product departs from its intended design
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1.
Different than the others on assembly line- dangerous beyond the expectation of the ordinary consumer (use consumer expectation test for food too)
2.
Speller v. Sears : Messed up fridge, caught fire: P did not have to submit evidence of specific product defect when D brings up alternative causes, since P had circumstantial evidence a.
Party injured as a result of a defective product may seek relief against the product manufacturer or others in the distribution chain if the defect was a substantial factor in causing the injury
3.
Test : What was the consumer expectation? iii.
(2) Design Defect -
1.
Barker v. Lull Engineering : Designed defectively if product (1) failed to perform as safely as ordinary consumer would expect when used in an intended or reasonably foreseeably manner; or (2) the benefits of the design do not outweigh the risk of danger, inherent in such design
2.
An alternative design that would make the product safer than the original version, not prohibitively expensive, would still do the intended act
3.
Could have designed the Ford Pinto differently, cheaply, same result
4.
Micallef v. Miehle : Person tries to remove a foreign objective of the printing press and gets severely injured, maker makes the “open and obvious” attack but machine could be defective in design even when the dangerous condition was open and obvious
5.
Burden is on plaintiff to show that the product is defective, then on defendant to prove wrong, or to prove that balance favors not changing it
6.
Reasonable Alternative Design (minority test)- a.
(1) Usefulness and desirability of product b.
(2) Likelihood that product will cause injury c.
(3) Availability of a safer alternative d.
(4) Manufacturer’s ability to eliminate the unsafe character without impairing its usefulness or making it too expensive e.
(5) Avoid-ability of injury by careful use f.
(6) Consumer expectation of danger, or existence of suitable warnings/ instructions g.
(7) Feasibility of spreading the loss by setting the price of the product or carrying insurance iv.
(3) Warning Defect - Product has residual risks that can’t be eliminated by a physical redesign, that a consumer would not be aware of, and it lacks warnings about the risks
1.
Product is defective if its warning doesn’t comply with the government standard
2.
MacDonald v. Ortho Pharmaceuticals : BC manufacturer not justified in relying on doctor to impart warnings, had a common law duty to warn of nature, gravity and likelihood of risk (even though complied with FDA warning)
3.
Will a normal customer see and understand the warning?
4.
Must include warning for special sensitivities if group is large enough
5.
Learned Intermediary: a.
Assume Dr. will adequately warn patient of the risk i.
Dr. gives product to patient, warns against foreseeable misuse b.
Complete defense, applies to warning defects c.
BUT once you market to public, lose learned intermediary defense
6.
Tests : a.
Consumer Expectation Test i.
b.
Hybrid Test: i.
c.
Alternative Design Test:
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i.
v.
Issues : Suppliers are required to anticipate reasonable foreseeable misuse of product i.
(3) Product Was Not Altered i.
Plaintiff must prove that the product was not altered after leaving the defendant’s hands- presumed if the product traveled in ordinary channels of distribution ii.
But if substantially altered in some way that doesn’t affect what injured you- ok j.
(4) Plaintiff was Using Product in a Foreseeable Way i.
Plaintiff was making a foreseeable use of the product during the time of injury ii.
Is the injury foreseeable based on the natural use of product? iii.
Person might be misusing product (in a way that was not the intended purpose) but that wouldn’t bar recovery as long as the misuse was a foreseeable use iv.
If you know that the product is being misused, and the misuse is making the product dangerous, they are still liable (ex: hoof cream) k.
Except : Comment K- Some products have such a huge benefit to society that it would be against good public policy to apply strict liability to it i.
In some cases, courts impose a negligence standard (ex- polio vaccine) ii.
Apply negligence, not strict liability- don’t want to prevent industry advancement iii.
OR apply negligence standard for any pharmaceutical that a reasonable care giver would prescribe to any patient class (or give safely to more than one class) l.
Statutes: If comply with government standard, non-determinative evidence of lack of defect, but if you don’t comply, per se evidence of defectiveness m.
Damages : Can get for personal injury, property damages, not usually economic damage i.
Punitive damages in product liability cases- only up to 10:1 punitive: compensatory n.
Defense : Assumption of risk, contributory negligence usually not defense (misuse, overdose) i.
Unless the product’s misuse was unforeseeable o.
Implied Warranties/Merchantability i.
No implied warranty unless privity of contract ii.
Merchantable if they are generally acceptable among those who deal in similar goods and are generally fit for the ordinary purposes for which such goods are used
XIV.
DEFAMATION a.
Communication is defamatory if it (1) tends to harm the reputation of another as to lower him in the estimation of the community, or to deter third persons from associating or dealing with him. i.
Defamatory language must identify the plaintiff to a reasonable reader ii.
Can introduce extrinsic facts (“the lady next door is a slut”- who is neighbor?) b.
Defamatory language
1.
Adversely affect’s plaintiff’s reputation, includes product disparagement
2.
Opinion and parody are usually not defamatory c.
Publication is Required i.
Publication if its communication intentionally or negligently to a third person
1.
OR one who intentionally and unreasonably fails to remove defamatory matter that he knows to be exhibited on land or chattels in his possession or under his control- subject to liability for its continued publication
2.
Has to be communicated to someone other than person being defamed
3.
Doesn’t matter that P didn’t know who D was- intent to publish, not intent to defame that matters ii.
Single Publication Rule
1.
Series of copies is one publication, repetition of statement is republication iii.
Re-publisher- treated same as if original publisher
1.
BUT person who delivers publications isn’t liable if they don’t know of material in the delivery, and had no reason to know (paper delivery man) iv.
Intra-corporate privilege (i.e. not publication)
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1.
But , no privilege if malice , or outside the scope of employment d.
Types of People i.
Public Officials/Public Figures : Show actual malice ( NYT v. Sullivan standard)
1.
Knowledge that the statement was false, or
2.
Reckless disregard for its truth or falsity (subjective standard)
3.
Public official (government) or public figure (celebrity or famous) or a person with a central role in a public controversy ii.
All Members of Large Groups : Generally no successful defamation actions iii.
All Members of Small Groups : May be successful ( Neiman-Marcus case)
1.
Have to show some fault in negligence- NYT v. Sullivan standard too iv.
Some Members of Small Group
1.
Can only bring action if reasonable ppl would see P as member of group v.
Limited Public Figures : have to show actual malice for defamation vi.
Private Individuals
: Don’t have opportunity to fight back- don’t have to prove malice, so only deal with con. limitations on free speech if it’s a “matter of public concern”
1.
Prove defamation through negligence if not malice e.
Issues i.
Dead people can’t be defamed ii.
Corporations can be defamed (including product disparagement, financial sitch) iii.
Internet service providers- protected from defamation f.
Damages i.
General damages are presumed if there is damage to P’s reputation, (only if public figure, defamation was false, and D is at fault) ii.
Need to prove pecuniary damages- loss of employment, etc. iii.
When it’s an issue of public concern, general damages limited to actual injury sustained when D was malicious/negligent in publication- must prove impairment of reputation, humiliation, mental anguish, etc. g.
Libel i.
Defamatory statement in writing or other permanent form
1.
Statements on radio and TV count as libel ii.
Damages : presumed (actionable per se ) iii.
Libel per quod: Defamatory if tied to some extrinsic fact- show special damages h.
Slander i.
Defamatory statement is spoken or gestured (republication is repeating it) ii.
Damages are NOT presumed a.
Except: Special damages are presumed for slander per se i.
Criminal conduct ii.
Attack on their abilities in their business or profession iii.
Loathsome disease (i.e. STD, AIDS) iv.
Crime involving “moral turpitude” (e.g. assault, adultery) v.
Unchastity of a woman i.
Defenses i.
Consent or truth ii.
Absolute privilege
1.
Judicial, legislative, or executive (i.e. governmental ) proceedings
2.
“Compelled” broadcast or publication, communication between spouses iii.
Qualified privilege
1.
Some states protect person who reasonably believed that the defamatory statement is true
2.
Reports of public proceedings, fair comment or criticism (book reviews)
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3.
When facts are considered important for public interest: public meetings, local government documents, and information about public bodies (cops)
4.
Protect publisher’s interest, protect recipient or third person’s interest, protection of a common interest, family relationship or pubic interest iv.
Conditional privilege
1.
Self defense- person reasonable believes that his interest in his own reputation has been unlawfully invaded by another person and that the defamatory matter that he publishes about the other is reasonably necessary to defend himself (calling the other guy a liar)
2.
Allowed to comment about a former employee if it doesn’t include false or malicious statements or misleading information
3.
BUT statement must be within your scope or privilege, no malice
4.
Defendant bears burden of proof that privilege exists v.
Opinion - protected when based on already known or stated facts
1.
Parody and humor are protected as a form of opinion
2.
BUT can be actionable when based on undisclosed/ personally known fact vi.
No strict liability for media vii.
If defendant was provoked by plaintiff, might mitigate defamation j.
Mitigation i.
No malice, retraction, provocation by plaintiff (and uttered in angry response)
XV.
PRIVACY a.
Appropriation of Name or Likeness: Right of Publicity i.
An unauthorized appropriation of P’s picture or name for commercial gain
1.
Limited to advertisement of products and services ii.
One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy
1.
Protected individual’s exclusive rights to his identity as far as it is represented by their name or likeness- in so far as the use may be of benefit to him or others
2.
Creates a right in the nature of a property right- exercise of which an exclusive license may be given to a third person which will entitle the licensee to maintain an action to protect it (your name is your property)
3.
Common law has always recognized value of name, likeness and reputation iii.
Impact: Vanna White v. Samsung
1.
Samsung had a robot that turned on TV’s like Vanna White did
2.
But it was a clear parody so shouldn’t have found for White
3.
Difference between parody is a knock off is the difference between fun and profit (but comedy central is a parody but it’s profitable) iv.
Human Cannonball- stole his name and likeness by filming his stunt v.
Issues :
1.
Some states require showing that the appropriation be done for a business or commercial purpose- used in promotion or advertisement for product
2.
Suit can be brought by estates- goes against “can’t defame the dead” issue b.
Intrusion upon Seclusion: Right of Privacy i.
Prima Facie Case
1.
Intrusion highly offensive to reasonable persons’
expectation of privacy
2.
Protects intrusion upon plaintiff’s private affairs or seclusion ii.
Personal autonomy (“get out of my face”)
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1.
Actionable space around your person a.
But , expectations of privacy decrease in public (v. in private) iii.
One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy if his invasion would be highly offensive to a reasonable person
1.
Evolving standard- what is “highly offensive” to a reasonable person? a.
Increased government’s ability to search without a warrant because we expect to be watched more (CCTV)
2.
Act of being intruded upon- like neighbor taking pictures of you iv.
Getting in a person’s space can be intrusion upon seclusion- has to be highly offensive- no “eggshell thin skull plaintiff” in privacy- objective standard v.
Issues :
1.
Doesn’t require publication,
2.
Doesn’t include acts done in public (BUT Nader said “ a person doesn’t make public everything he does just by being in a public place” (Nader v. GM) c.
Public Disclosure of Private Facts i.
Prima Facie Case
1.
Publication and disclosure of private information
2.
Publication is highly offensive to a reasonable person ii.
One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that
1.
(1) Would be highly offensive to a reasonable person AND
2.
(2) Not of legitimate concern to the public iii.
Must have actual public disclosure, not private disclosure of private fact iv.
Private Facts: Ex: showing video of birth, no liability for matters of public record v.
Can link public disclosure of private facts with intrusion upon seclusion
1.
Like the girl didn’t know she was taped, boyfriend filmed and copied
2.
Publicity rather than publication is required vi.
Issues:
1.
No recovery for someone who is extra sensitive (reasonable person)
2.
Still public disclosure of private facts whether they’re true or false vii.
BUT exception if there is a value for the public to know- sometimes do talk about private lives of public officials
1.
If candidate is running on morality and they have a sex scandal- they’re a liar so relevant to the public viii.
Damages : Don’t need to prove special damages- emotional distress is sufficient d.
False Light i.
Prima Facie Case
1.
Publicity of fact
2.
Facts place plaintiff in a false light in the public eye a.
False light = views not held or actions not taken by plaintiff
3.
False light is highly offensive to a reasonable person
4.
Iff a matter of public interest , then malice required. ii.
One who gives publically to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy if
1.
(1) The false light in which the other was placed would be highly offensive to a reasonable person
2.
(2) The actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed
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iii.
Issues :
1.
Information alleged must be false as in defamation
2.
No exception for matters of legitimate public interest
3.
Photo journalists are most worried about false lights- like Obama checking out the intern
4.
But has the limitation so it doesn’t make it equal to defamation iv.
Impact : Time v. Hill
1.
Requires a showing of known falsity or reckless disregard under NYT v. Sullivan
2.
Court voted, then changed their opinion
3.
Sanctions against innocent or negligent misstatements would discourage the press from exercising their constitutional
4.
In both defamation and privacy, court allows the media breathing room
5.
Don’t want to create a chilling effect- don’t want to change how people relate to each other (tape recorder on table) a.
Don’t want reporters to have to fear being sued- risk averse e.
Scope i.
Applies only to individual persons ii.
Does not apply to corporations or to property f.
Defenses i.
Truth is not a defense! ii.
Consent, absolute privilege, qualified privilege are defenses
XVI.
IN GENERAL a.
Vicarious Liability i.
Liability that is derivatively imposed- person is liable for third party’s acts ii.
Respondeat Superior
1.
Test : Employer is vicariously liable for torts committed by employees within the scope of employment
2.
The same reasoning that would make a man answerable in trespass for all damages to another by force directly resulting from his act, would make him liable for injuries resulting from the acts of his servants
3.
Partners and joint ventures vicariously liable for the others’ tortious acts
4.
Exceptions a.
Not liable if employee acts outside the scope of employment
(i.e. frolic and detour - Teen Angel ) b.
Not liable for employee’s intentional tort (unless he’s a bouncer) c.
Employers are not liable for acts of independent contractors i.
Unless , engaged in inherently dangerous activities or duty is non-delegable on the basis of public policy ii.
Not liable if actually an employee, even if called independent contractor iii.
UNLESS person “offers supervisory suggestions” d.
Car owner isn’t liable for tortious acts of a person driving his car i.
But may be negligent for letting that person use the car e.
Parents aren’t usually vicariously responsible for kids tortious acts i.
But they can be negligent in allowing a child to do something iii.
Dram Shop Rules
1.
Common law- no liability on vendors for injuries resulting from drunk guy
2.
MADD wanted to codify a behavior- wanted to make it illegal for bars to overserve customers that would result in injury
3.
Dram shop just codifies the standard of negligence for certain people
4.
Most, but not all, laws exclude private social events (hosting parties)
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b.
Joint and Several Liability i.
Tortfeasors acting in concert
1.
Each is jointly and severally liable for entire injury that occurred ii.
Contribution
1.
Allows any tortfeasor to have a claim against the other jointly liable party for the excess of what he was responsible for
2.
Comparative contribution ( majority ) a.
Damages apportioned according to proportional fault among D’s
3.
Equal Shares ( minority ) a.
Each defendant at fault pays an equal share of the damages iii.
Indemnity
1.
Shifts entire loss to the other tortfeasors (through contract, employer sues employee after being sued under respondeat superior, can sue higher up in the manufacturing chain, etc.) iv.
If all working together, can be held jointly and severally liable for accident, can sue one for the full amount of damages v.
Other people can be sued by the one defendant picked up by plaintiff for
“contribution” for remainder of the group that was responsible c.
Feres Doctrine i.
1950 series of cases- acts of extreme negligence by US military ii.
FTCA doesn’t have exception for military, but does have exclusion for combat
1.
Easterbrooke- FCTA didn’t expressly exempt military, so should be able to sue iii.
But the gov’t claims that everything they do is part of wartime function, even in peacetime iv.
Say that it’s bad for discipline and order to allow military personnel to be able to sue their superiors v.
Civilian companies are free from liability under Feres because military keeps all the proceeds vi.
But it would cost too much if military had to internalize that cost vii.
Path dependence- spend so much money doing one things, that it would take too much time and money to undo it d.
Federal Preemption i.
Relatively rare ii.
Constitutional basis = supremacy clause
1.
Express preemption = in the statute
2.
Implied preemption = legislative intent iii.
Pseudo-Preemption
1.
Basis: Non-constitutional ( not true preemption)
2.
Punitive damages a.
Unconstitutionality? If damages too high, they violate due process b.
Standard: Limited to 10x the compensatory damages e.
Recklessness i.
A person acts recklessly in engaging in conduct if:
1.
The person knows of the risk of harm created by the conduct or knows facts that make the risk obvious to another in the person’s situation and
2.
The precaution that would eliminate or reduce the risk involves burdens that are so slight relative of the magnitude of the risk as to render the person’s failure to adopt the precaution a demonstration of the person’s indifference to the risk
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