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1.
Torts
Fall 2008
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7.
Subject
Privileges
Consent
Privileges
Defense of Property
Negligence
A Negligence
Formula
Negligence
A Negligence
Formula
Negligence
Standard of Care
Negligence
Professional
Standard of Care
Negligence
Professional
Standard of Care

Medical
Malpractice
Case(s)
Mohr v. Williams
Bonkowski v.
Arlan’s Department
Store
1968)
(Michigan
Gulf Refining Co. v.
Williams
Or any other negligence case.
U.S. v. Carroll
Towing Co.
Roberts v. State of
Louisiana
Heath v. Swift
Wings, Inc
Scott v. Bradford
Tests, Rules, and Exceptions
Informed Consent Rule
A surgeon cannot perform a non-life saving surgery on an anesthetized patient without that patient’s consent.
Three Exceptions to Informed Consent General Rule
(1) When the patient’s life is at stake,
(2) When the patient’s judgment is impaired, and
(3) When a parent gives consent for his or her child.
The Merchant Detention Doctrine
Merchant has the privilege to detain a shopper if he reasonably suspects that shopper is stealing.
(1) There must be a reasonable suspicion of theft and
(2) A shopkeeper’s detention of a customer must be reasonable.
A Negligence Formula
(1) A duty of reasonable care
(2) A breach of that duty
(3) Actual and proximate cause connecting the breach to the damage/loss
(4) Actual damage or loss.
The Duty Function
(1) The probability the risk will materialize
(2) the gravity of the resulting injury
(3) the burden of adequate precautions
Disability Duty Exception
The standard of care applicable to handicapped persons is that they must take those precautions that ordinary, reasonable persons would take if they were similarly handicapped.
The Professional Standard of Care
(1) Possession of Skill: Possessing requisite learning, skill, and ability to practice the profession.
(2) Exercise of Best Judgment: An exertion of one’s best judgment.
(3) Use of Due Care: An application of that knowledge, skill, and training with reasonable care and diligence.
Proving Malpractice
(1) Duty to Inform: The doctor failed to inform the patient
(2) Causation: The patient would not have consented to treatment
(3) Injury: Adverse consequences that were not made known occurred and the plaintiff was injured as a result.
Defending Malpractice:
(1) That the patient knew of the risk
(2) That full disclosure is detrimental to patients total care/best interests ( a very small window)
(3) That an emergency existed which required prompt treatment and that the patient was in no condition to decide

8. Negligence
Violation of Statute
Osborne v.
McMasters for himself.
Per Se Plus Principal: In most states violation of statute is negligence but the following must still be proven
(1) That the plaintiff was in the class of people that the statute was enacted to protect, and
(2) That the harm causing the plaintiff’s injury was prohibited by the statute
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Negligence
Excuse for Violation of Statute
Negligence
Res Ipsa Loquitur
Causation
Cause in fact (Sine
Qua Non)
Proximate Cause
(Legal Cause)
Causation
Expert scientific evidence
Causation
Intervening Causes
Proximate Cause
Intervening Cause
Zeni v. Anderson
Larson v. St. Francis
Hotel
Bartolone v.
Jeckovich
Daubert v. Merrell
Dow
Pharmaceuticals,
Inc.
Derdiarian v. Felix
Contracting Corp.
McCoy v. American
Suzuki Motor Corp.
Per Se Exceptions : Unless the enactment or regulation is construed not to permit such excuse, the following excuse its violation.
(1) The violation is reasonable because of the actor’s incapacity.
(2) He neither knows nor should know of the occasion for compliance
(3) After reasonable diligence of care he is unable to comply.
(4) He is confronted by an emergency not due to his own misconduct
The Res Ipsa Requirements
(1) No direct evidence of D’s conduct – injury is unexplainable.
(2) That the instrumentality is under the exclusive control of
(3) There is no comparative fault of the plaintiff
(4) Such an injury does not happen unless negligence is involved
Two Prongs of Causation: a plaintiff must prove both parts of causation for negligence:
(1)That the defendants conduct was the cause in fact of the plaintiff’s injury
(2)That the defendant’s conduct was the proximate cause of the plaintiff’s injury.
*Proximate Causation footnote: A defendant must take his plaintiff as he finds him.
Daubert Doctrine
In complex proof cases, expert scientific evidence on causation must be:
(1) scrutinized and published in peer review journals
(2) must be reliable
(3) must be based on scientific inquiry
(4) must be generally accepted by medical community.
*This is especially true when issues are on the edge of medical science if scientific evidence departs from general standard.
Causation Foreseeability Formula: In order for a intervening cause to be considered superseding
(1) Intervening cause must have been unforeseeable to the defendant
(2) Manner of harm must be unforeseeable
(3) Kind of harm must be unforeseeable
The Rescue Doctrine : A tortfeasor is equally liable to one who rescues an injured party so long as a plaintiff provides:
(1) The defendant was negligent to the person rescued and such negligence caused the peril or appearance of peril to the

15. Proximate Cause
Public Policy
16. Joint Tortfeasors
Liability and Joinder of Defendants
17. Joint Tortfeasors
Liability and Joinder of Defendants

Joint and several under comparative fault
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19.
Joint Tortfeasors
Satisfaction and
Release
Joint tortfeasors
Apportionment of
Damages
Kelly v. Gwinnel
Enright v. Eli Lilly
& Co. person rescued.
(2) Proof of imminent peril necessitating a rescue.
(3) Proof that a reasonable prudent person would believe that peril existed.
(4) Proof that the rescuer effectuated the rescue with reasonable care.
Public Policy Principals
(1) liability may be imposed for the purpose of general deterrence
(2) Liability must be confined within manageable limits
(3) Public policy requires innovative risk for the benefit of society at large
Bierczynski v.
Rogers
Bartlett v. New
Mexico Welding
Supply Inc.
Three Basic Categories of Joint Tortfeasors:
(1) Acting in concert : Inducing and encouraging. (i.e. Street racing in Bierczynski )
(2) Vicarious Liability : Ex. Hakbart v. Cincinnati Bengals
(3) Defendants acting independently to cause an indivisible harm. (i.e. Bartlett )
Coney v. J.L.G.
Industries Inc.
Bartlett v. New
Mexico Welding
Supply Inc.
Cox v. Pearl
Investment Co
Bundt v. Embro.
Three Jurisdictions and Comparative Fault:
(1) Joint and several trumps comparative fault. A defendant who is attributed only 30% at fault could be forced to pay all damages due to joint and several liability. Coney v. J.L.G.
Industries Inc. (Majority Rule)
(2) Exclusively comparative fault Bartlett v. New Mexico
Welding Supply Inc.
: “The concept of one indivisible wrong, based on common law technicalities, is obsolete, and is not to be applied in comparative negligence cases in New
Mexico.”
(3) Modified comparative fault: Iowa, joint and several only applies if a defendant is at least 50% at fault. The defendant only pays for economic damages. A defendant less than 50% at fault never pays less than his assigned percentage of damages.
3 Categories a) Release – release of one D from a specific claim (before or after satisfaction) releases all others for that specific claim
( Cox v. Pearl Investment Co.
).

But when contract expressly limits release to one D it only applies to that defendant b) Global release – release of all claims and any entity related to the D. c) Full satisfaction – once the P receives full satisfaction, she may not recover again ( Bundt v. Embro )

Settling with one does not preclude award from another when full recovery is not met
Michie v. Great
Lakes Steel Division,
Nat’l Steel Corp.
Rules of Apportionment:
(1) Action in concert – If two Ds can be said to have acted in concert, each will be liable for injuries directly caused by the other. So, no apportionment. i.
(2) Successive injuries – Harm apportionable if it occurs in successive incidents, separated by substantial periods of time.

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22. Owners and
Occupiers of Land
On the premises
Chicago, B. & Q.R. v. Krayenbuhl
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Owners and
Occupiers of Land
On the Premises
Owners and
Occupiers of Land
On the Premises
Owners and
Occupiers of Land
On the Premises
Owners and
Occupiers of Land
On the Premises
Campbell v.
Weathers
Campbell v.
Weathers
Rowland v.
Christian (Supreme
Court of California)
Three Status Categories:
(1) Trespassers. Duty owed: A landowner owes no duty to a trespasser.
(2) Licensee / Social Guest. Duty owed:
A landowner must warn them of known dangers. These people come onto the landowner’s property for their own interests.
(3) Business Invitee. Duty owed:
A landowner must exercise reasonable care to keep the premises safe. These people are invited, they come for the landowner’s benefit.
Status Analysis
(1) The Invitation Test - Does the person exceed the invitation of the landowner.
(2) The Economic Benefit Test - Does the person’s presence confer an economic benefit on the landowner.
The Attractive Nuisance Doctrine
A landholder has a duty of reasonable care to protect children from harm when
(1) knows or has reason to know that children are likely to trespass
(2) know or has reason to know that there is condition creating an unreasonable risk of harm
(3) the children because of their youth do not discover the condition or realize the risk
(4) burden of eliminating the danger are slight compared to the risk
(5) failure to use ordinary care i.e. turntables in rail roads, swimming pool, etc.
* Child Licensee - There may be an obligation to inform a child licensee about a risk when there would be no duty with regard to an adult.
Alternative Treatments of Public Officials
(1) classified as licensees;
(2) classified as invitees;
(3) classified as licensees or invitees depending upon the highest duty which landowner already owes to some other person at that place and time;
(4) give a separate classification, with a special duty owed to it;
(5) held entitled to reasonable care under all circumstances.
Reasons for rejection of the categories:
(1) Difficulty to differentiate between the categories
(2) The categories of more reflective of property & contracts law.
(3) To soften the harshness against trespassers and social guests
(4) This would heighten a landowner’s duty from merely warning to repairing.
Factors For Determining the Duty Owed to a Non-owner
When Categories are Abandoned

25. Owners and
Occupiers of Land
Lessor and Lessee
26. Damages
Personal Injuries
(1) closeness of the connection between injury and D’s conduct
(2) policy of preventing that type of harm
(3) prevalence and availability of insurance
Borders v. Roseberry In general, lessor is not liable in tort once he transfers possession to the lessee. However there are six exceptions:
(1) Undisclosed dangerous conditions know to the lessor and unknown to the lessee.
(2) Conditions dangerous to persons outside of the premises.
(3) Premises leased for admission to the public.
(4) Parts of land retained in the lessor’s control which lessee is entitled to use, common areas.
(5) Where the lessor contracts to repair.
(6) Where the lessor acts negligently in making repairs.
Anderson v. Sears,
Roebuck & Co.
3 Basic Categories of Damages
(1)Nominal damages – A trifling sum awarded when a legal injury is suffered but when there is no substantial loss or injury to be compensated.
(2) Compensatory damages – these are intended to represent the closest possible financial equivalent of the loss or harm suffered by the plaintiff, to make the plaintiff whole again, to restore the plaintiff to the position the plaintiff was in before the tort occurred.
Economic Damages
(i) past medical expenses
(ii) future medical expenses
(iii) past loss of earnings
(iv) future loss of earning capacity
(v) past and future special care expenses
Non-Economic Damages
(i) Past and future physical and mental pain and suffering
(ii) Loss of Consortium
(iii) Loss of enjoyment life
*Past = Before the trial, future = after the trial.
(3) Punitive damages – these are an additional sum, over and above the compensation of the plaintiff, awarded in order to punish the defendant, to make an example of the defendant, and to deter defendant and others engaging in similar tortuous conduct.
*Totality of Evidence- In most states, the totality of evidence is taken into account to determine whether the amount exceeds the extent of injury or damage.

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Damages
Personal Injuries:
Compensatory
Damages
Personal Injuries:
Compensatory
Damages
Punitive Damages
Montgomery Ward
& Co., Inc. v.
Anderson
Zimmerman v.
Ausland
State Farm v.
Campbell
Collateral Source Rule
If the plaintiff receives compensation from a source collateral to the defendant tortfeasor, that benefit can’t be used by the defendant to reduce the full amount plaintiff can recover since that benefit was not conferred by the defendant.
Exceptions to the Collateral Source Rule
(1) Rebut plaintiffs claim that he was compelled by financial necessity to return to work or forego additional medical treatment.
(2) To show that plaintiff had attributed his condition to some other cause, such as sickness
(3) To impeach plaintiff’s claim that he or she had paid his medical expenses himself
(4) To show that the plaintiff had actually continued to work instead of being out of work as claimed
Reasonableness of Mitigation Test
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(1) Risk involved
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(2) Probability of success
3.
(3) Expenditure of effort or money required
4.
(4) Pain involved
Guide Posts for Evaluating Punitive Damages:
(1) Reprehensibility of defendant’s conduct
(2) Disparity between compensatory and punitive damages
(3) Difference between punitive damages awarded by jury and civil action penalties in comparable cases
30. Defenses
Plaintiff’s Conduct:
Contributory
Negligence
31. Defenses
Plaintiff’s Conduct:
Comparative
Negligence
32. Defenses
Assumption of Risk:
Express
33. Defenses
Assumption of Risk:
Implied
Davies v. Mann
McIntyre v.
Balentine
Seigneur v. National
Fitness Institute, Inc
Rush v. Commercial
Realty Co.
Last Clear Chance Doctrine
Acts as a limit on contributory negligence defense. If, just before the accident, the defendant had an opportunity to prevent the harm, and the plaintiff did not have such an opportunity, this last clear chance negates a contributory defense. Thus, the plaintiff may recover if the defendant had
‘last clear chance’ to avoid injury.
* Contributory negligence jurisdictions: Alabama, Virginia,
Maryland, and NC.
Types of Comparative Negligence
(1) Pure form – Recovery is reduced by percentage fault attributed to the plaintiff. 13 states have this.
(2) Modified (50%) form – Plaintiff is barred from recovery if his negligence is (depending on state) “as great” as the defendants.
Grounds Upon Which Courts May Void a Waiver of
Liability
(1) when D intentionally causes harm or act with willful or reckless disregard of well-being of P;
(2) contracts of adhesion;
(3) when transaction involves public interest.
Test for Showing an Implied Assumption of Risk
(1) plaintiff knew of the risk in question;
(2) voluntarily consented to bear risk himself
(3) defendant has left the plaintiff other reasonable

34. Defenses
Statutes of
Limitation
Teeter v. Currey alternatives
*in most states assumption of risk is evidence of comparative negligence.
Discovery Exception Rule
In cases alleging medical negligence the action must be filed within 2 years of the date that the negligence is discovered or should have been discovered.
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Defenses
Immunities
Vicarious Liability
Deuser v. Vecera Original Immunites
(1) Interspousal tort immunity (widely abolished)
(2) Parental Immunity
(a) Exceptions to Parental Immunity
(i) A child may sue a parent for unusually malicious conduct
(ii) A child may sue a parent’s business partner for negligence committed in the operation of the partnership
(3) Charity Immunity (widely abolished)
(4) Employer Immunity (workers comp.)
(5) State and Local Government Immunity (widely abolished)
(6) Federal Government Immunity
(a) Exception is the Federal Tort Claims Act allows suit against the government of negligence.
(b) The discretionary function exception to this exception
(i) No liability may be based upon the government’s exercise of a discretionary or policy-making function, even if the discretion is abused.
(c) The Discretionary Function Test :
(i) must determine if actions taken by government employee were discretionary;
(ii) and whether that judgment is of the kind that discretionary function exceptions was designed to shield.
(7) Common Law Official Immunity
Vicarious Liability
(1) Respondeat Superior
(2) Joint Enterprise
(3) Bailment
37. Vicarious Liability
Respondeat Superior
38. Vicarious Liability
Respondeat Superior
Bussard v. Minimed Going-and-Coming Rule
Driving to or from work is not furtherance of business.
* Exception to the exception is when the employee endangers others while “going-and-coming” due to a work related risk foreseeable to the employer.
O’Shea v. Welch Frolic and Detour
A frolic is a major deviation that is not within the scope of employment and a detour is a slight deviation that is within the scope of employment.
Spotting a Slight Deviation
(i) The employees intent
(ii) Nature, time, place of the deviation
(iii) The time consumed in the deviation
(iv) The work for which the employee was hired
(v) The incidental acts reasonably expected by the employer
(vi) The freedom allowed the employee in performing job duties

39. Vicarious Liability
Respondeat Superior
40. Vicarious Liability
Bailments
41. Vicarious Liability
42.
Strict Liability
Animals
Maloney v. Rath
*Acts that are necessary to the comfort, convenience, health, and welfare of the employee are not considered outside the scope of employment
Independent Contractor Rule
Employer who hires an independent contractor is not generally liable for torts of that person.
Exceptions to the Independent Contractor Exception
(1) Employer’s own liability – If employer is negligent in dealings with the independent contractor, this can give rise to employer liability.
(2) Non-delegable duty – There are some duties of care that are deemed so important that the person doing them will not be allowed to delegate them to anyone.
(3) Inherently dangerous activities – One who employs an independent contractor will be liable when the work is such that, unless special precautions are taken, there will be a high degree of danger.
Shuck v. Means Bailments
(1) Family Purpose Doctrine – Provides that a car owner who lets members of her household (immediate family members only) drive the car for their own personal use has done so in order to further a “family purpose,” and is, therefore, vicariously liable.
(2) Automobile Consent Statute – Some states have enacted this statute, which provides that the owner of a car is vicariously liable for any negligence committed by one using the car with the owner’s consent.
(3) Non-statutory Bailment – If there is no consent statute, the mere existence of a bailment does not make the bailor vicariously liable for the bailee’s negligence
Smalich v. Westfall Imputed Contributory Negligence
(1) Traditional Rule – Common law recognized doctrine of
“imputed contributory negligence” in many three-party situations. That is, because of some relationship between A and B, B’s suit against C might be defeated because of A’s contributory negligence, “imputed” to B.
(2) Modern rule – In vast majority of states today, contributory negligence will be imputed only if the relationship is one which would make the plaintiff vicariously liable if he were a defendant.
(a) “Both ways” rule – If relationship is one which would give rise to vicariously liability, in most courts contributory negligence is still imputed.
Animals
(1) Trespassing Animals – Typically the owner of livestock is strictly liable for property damage caused by them if they trespass even if utmost care is exercised in preventing this.
A person is also strictly liable for damage done by any
“dangerous animals” he keeps.
(2) Wild Animals – A person who keeps “wild” animal is strictly liable for all damage done by it, as long as the damages result from a “dangerous propensity” that is typical

of the species in question. This is considered an abnormally dangerous activity.
(3) Domestic Animals – Injuries caused by a “domestic” animal such as cat, dog, cow, pig, etc. do not give rise to strict liability unless the owner knows or has reason to know of the animal’s dangerous characteristics.
One-bite Rule – you know the animal is vicious after one bite.
43. Strict Liability
Abnormally
Dangerous Activities
44.
45.
Strict Liability
Limitations on Strict
Liability
Product Liability
Rylands v. Fletcher Elements of an ultra-hazardous or abnormally dangerous activity.
(1)Existence of high degree of risk of some harm to the person, land or chattels
(2) Likelihood that the harm that results from it will be great;
(3) Inability to eliminate the risk by the exercise of reasonable care;
(4) Extent to which the activity is not a matter of common usage;
(5) Inappropriateness of the activity to the place where it is carried on; and
(6) Extent to which its value to the community is outweighed by its dangerous attributes.
Examples of Dangerous Activities
(1) Storage and Transport of toxic chemicals
(2) Blasting
(3) Pile Driving
(4) Crop dusting
(5) Fumigation with Toxic/Poisonous gas
(6) Testing of Rockets
(7) Fireworks
(8) Hazardous waste disposal site
(9) Oil Wells
(10) Storage of Water
(11) Wild animals
Foster v. Preston
Mill Co.
Limits on Strict Liability
* There is strict liability only for damages which results from the kind of risk that made the activity abnormally dangerous.
Proximate cause is limitation on strict liability. Still need to establish proximate cause.
MacPherson v. Buick
Motor Co
Product Liability
The manufacturer of any product capable of serious harm if negligently made owes a duty of care in the design, inspection, and fabrication of the product , a duty owed not only to the immediate purchaser but to all persons who might foreseeably come into contact with the product. Modern products liability law is the direct descendant of MacPherson , both in tort and in implied warranty. Liability for negligence of manufacture of defective product doesn’t hinge on contractual relationship, but on duty.
Warranties
(1) Express: Buyer of goods which are not as they are contracted to be may bring an action for breach of warranty.
(2) Implied: Implied warranty is applicable when:
(i) seller knows that the buyer wants goods for a

particular (& not customary) purpose; and
(ii) buyer relies on seller’s judgment to recommend a suitable purpose.