1. 2. TORTS FINAL OUTLINE SCHOENBAUM, FALL 2012 TEST TIPS Best answers will identity the rule and then compare your fact pattern to cases you look at in class (and compare and contrast) Raise factors, compare to cases, then make predictions: “There are factors going both ways because the analysis shows that unlike bushey…etc.” a. b. c. A BRIEF OUTLINE OF THE NEXT 31 PAGES THAT MIGHT DECIDE YOUR FUTURE
Two main theories underlying tort law of when compensation for harm caused is required  POLICY ARGUMENTS i. Corrective justice  when you cause injury you’ve actually created moral imbalance and D needs to compensate P to take care of it (FAIRNESS ARGUMENTS) ii. Deterrence Arguments  deter injuries from happening
Two other considerations when we think about whether to allow tort system to shift loss and how we allow it to do so
i. Administrability – how hard will it to be for court to administrate the rule ii. Institutional competency – should this be enforced through courts or legislature, judges or juries?
Four different types of torts i. Triggering type of conduct of four types 1. Voluntary Act - Intentional 2. 3.
4.
Breach of Duty – Negligence Certain activity (abnormally dangerous) – Strict Liability
Seller – Defective Product d. Defenses – if D has appropriate defense, then even if all thee elements are met, the D may still be found not liable
Theories and Principles Underlying Tort Law 1. 2. iii. Damages
1. For intentional torts – need damages in first place to have a tort (you can get nominal damages) 2. Then how do we measure them (how much do we compensate P for her injury)
Corrective Justice
a. b. When one person causes an injury to another person, it creates a moral imbalance. Fairness – Make party responsible compensate injured party for loss
Deterrence 3. ii. Causation
1. Factual (injury resulted more likely than not from triggering conduct) 2. Proximate (standard - we don’t allow liability for all these types of conduct that constitute factual, limit to injuries foreseeable, of sort that made conduct fit the triggering standard in the first place) a. b. Want to deter people from committing actions that are likely to injure another. Making people liable for these damages works as a deterrence. Don’t want to punish people using due care. Would over-deter activities
Administrability
a. b. Want to create laws governing these actions that are easy and consistently applied to cases. Will law open floodgates to litigation?
4. 5.
c. Will ruling create a slippery slope?
Institutional Competency
a. Who is responsible for making and implementing the law? i. Courts v. Legislature b. c. Civil code easier to follow and more predictable, but change is slow (statutes) Often up to the jury to make choices of liability by applying law
Normative
a. Should base laws off what society determines is right and wrong
6. 7. 8. Bentham Utilitarianism
a. Should create laws that benefit society as a whole
Posner Law and Economic
a. Should not look at morals, should do what is economically efficient
Costs
a. b. Externalization – society bears the costs. Ex. Pollution Internalization – company spends more to make product safe, raises prices
INTENTIONAL TORTS (voluntary act + intent + causation)
1. Voluntary Act a. A defendant is not liable if the act which causes the harm is not voluntary

b. c. An act is not voluntary if it is the result of a pure reflex, or if unconscious when made Involuntary act in preservation of life? i. Laidlaw v. Sage – Man walked into bank, tells D he is going to set off a bomb. D moves P in front of him to shield blast. Court found NL, maxim of self preservation first law of nature, act done under pressing danger is done involuntarily to protect ones life. 2. Intent
a. b. c. d. An actor has an intent when the actor:
i. Desires to cause the consequences of his act; or ii. Knows or believes the result is substantially certain to occur 1. Garratt v. Dailey – kid pulls out chair from underneath girl, he was substantially certain she would hit the ground; liable for battery even if the D doesn’t touch the P
Substitutions for intent (Intent was unlawful)
i. If D intended to do the act or make the contact, which was unlawful or objectively inappropriate, and the contact turned out to be harmful/offensive, then intentional tort even if didn’t intend the harm. Whether the act was unlawful determines whether or not the intent to act was unlawful. 1. Vosburg v. Putney – D lightly kicked another boy in class with pre-existing knee condition he didn’t know about. This was against school rules b/c happened when class called to order and not at recess. Liable for 2. battery and harm that ensued from aggravating old injury w/o intending the harm. Eggshell plaintiff rule: in intentional torts, take plaintiff as they are. Liable for all damages that ensue, even if not foreseeable
Transferred Intent
i. Between People: If D had intent to intent to cause tort against one person, this intent will transfer to anyone who happens to be injured 1. Ex: A throws eraser at B, hits C. C can sue A for battery 2. Keel v. Hainline – Boys throwing erasers back and forth during class. A, throwing at B, hits C. A liable via transferred intent, B also liable for encouraging A to throw eraser. ii. Between Torts: If D intends to assault P, but instead punches P, he will be liable for battery even though only intended assault 1. Manning v. Grimsley – D, baseball player, throws ball at fence to scare heckling fans, ball breaks through fence and injures D. Intent to commit assault transfers to battery. 2. Does not apply to IIED.
Incompetency
i. Fact that D is mentally incompetent, insane, or a minor, does not preclude a finding that he possessed intent to commit tort 1. Polmatier v. Russ – D killed man, wife brought wrongful death suit. Found liable. D, although insane, did have intent to kill. Insanity does not void voluntariness of act.
ii. Incentives for this rule?
1. 2. 3. More injustice of denying injured party compensation Gives incentive to family to take better care of insane Ruling other way would create false insanity defenses
3. Causation
a. D’s act or a force set in motion by that act must cause P’s injury BATTERY – Intentional Infliction of Harmful or Offensive Bodily Contact b. Overview: (1) Act intending to cause harmful/offensive contact or imminent apprehension of such contact, (2) contact actually c. d.
e.
happens. Easy Battery Cases: Intend contact, act is voluntary, contact turns out to be harmful or offensive Hard Battery Cases: Wrongfulness/appropriateness if no intent to harm; imminent threat in terms of voluntariness
Intentional i. Actor intended to cause harmful or offensive contact
1. If intended act is unlawful, intention to commit it must also be unlawful
f. ii. Actor intended to cause imminent apprehension of such contact
1. Put P in fear of imminent harmful or offensive contact
iii. Must intend the act that actually causes the harm
1. Knight v. Jewett – P and D playing touch football game. D stepped on P’s finger causing damage. D not liable for assault and battery b/c he did not intend to step on her or harm her
Harmful or offensive contact
i. Harmful: causing physical pain or bodily damage ii. Offensive: damaging to a reasonable sense of dignity 1. Would an ordinary person not unduly sensitive as to his dignity be offended? 2. Mohr v. Williams – P consented to surgery on right ear, D operates on left ear bc he sees it as worse. This is a battery because was offensive contact

g.
3. White v. University of Idaho – D piano teacher lightly poked P student’s back at her home when she wasn’t looking causing insane muscle injuries. P says she wouldn’t have consented and that it was inappropriate. Might be violating implied license for teacher not to touch student. Outlier. 4. If you know person is extra sensitive to something and do it anyway, can be liable for battery.
Contact Results
i. Contact beyond level consented to (Mohr v. Williams) 1. Can be implied from past experiences, words. ii. Extends to personal effects 1. Don’t actually have to touch person, contact with anything closely identified with body (hat, clothing) iii. Contact doesn’t actually have to be from D’s body 1. Arrows, bullets, etc. iv. P does not have to be aware of contact at time (could be sleeping) As long as D commits the battery, liable for any consequences that ensue, regardless if unforeseeable h. ASSAULT – Intentional causing apprehension of harmful or offensive contact i. Overview: (1) Intent to cause harmful/offensive contact (or intent to cause action that puts person in apprehension) to (2) give rise to imminent apprehension of such contact, and (3) an imminent apprehension subjectively reasonably results
j. Intent
i. Actor intended to make harmful or offensive contact ii. Actor intended to cause imminent apprehension of such contact 1. 2. Put P in fear of an imminent harmful or offensive contact Bennight v. Western Auto Supply Co – P forced by B to work in warehouse with bats against her protests. Bats attacked her one day and then bit her the next day. P needed rabies treatment, reacted badly, went blind and suffered emotional problems. P’s husband sues for lack of consortium – assault turned into battery b/c manager intended to put her in the place (unlawful and objectively inappropriate thing to do b/c of the bats there) & knew with substantial certainty that she would have an apprehension with the bats  then when bats
k. l. Harmful or Offensive Contact
i. Harmful: Causing physical pain or bodily damage ii. Offensive: Damaging to a reasonable sense of dignity
Imminent Apprehension Results
i. P must undergo an offensive contact, or be put in apprehension of a contact happening 1. 2. made contact a battery resulted and intent transferred from assault to battery. a. Vossburg Special Sauce: contact that was apprehended in warehouse was objectively inappropriate or offensive If you know a person is super timid and scare him; assault Langford v. Shu – D set the stage for children to play a prank on neighbor. Prank scared her and she fell backwards, injuring herself. Liable for assault because she intended to scare P, and D expected to enjoy 1. prank. ii. The threat must be imminent Future threats and threats without present ability (from P’s point of view) to commit harm do not constitute assault 2. Brower v. Ackerley – D’s calling P saying they are going to “find out where he lives and kick his ass” and “going to cut him in his sleep” not assault bc threats were in future or near future, not imminent future. (IIED?) iii. Generally, words alone do not constitute assaults 1. Conditional threats are assault (give me money or ill kill you). iv. P must be aware of threatened conduct otherwise not liable for assault v. Threat to a 3 rd party not actionable vi. Intending to assault, striking at another and missing; assault. vii. Holding hand in a threatening manner and saying nothing, assault. 1. Tuberville v. Savage – D, holding hand on sword, and saying if judges were not in town he would not accept such language from P is not an assault, threat was not imminent, did not actually intend to assault P. OUTRAGE (Intentional Infliction of Emotional Distress) m. Definition: Restatement (Second) § 46 i. Intentional or reckless infliction, by extreme or outrageous conduct, or severe emotional or mental distress. Third party n.
o.
can recover if he intentionally or recklessly causes severe emotional distress to a member of such persons immediate family who is present, whether or not such distress results in bodily harm, or to any other person who is present, if such distress results in bodily harm. Overview: (1) by extreme or outrageous conduct (2) intentionally or recklessly causes (3) actual severe emotional harm to another (also liable for physical harm).
Intent

p. q.
i. Desire to cause P emotional distress ii. Substantially certain that P will suffer such emotional distress iii. Recklessly disregard the high probability that emotional distress will occur iv. Transferred Intent 1. Generally not available, except when: a. Immediate family members who are present at the time of act i. (No physical manifestation necessary) b. Non family members who are present and suffer bodily harm
Conduct by D was Extreme and Outrageous
i. Conduct so outrageous in character, and so extreme in degree, going beyond possible bounds of decency, utterly intolerable by civilized community 1. 2. Hustler v. Falwell – P publishes magazine saying D first time during drunken incestuous rendezvous with his mother in an outhouse. Supreme court says no IIED b/c political cartoons are part of civilized society humor. Murray v. Schlosser – D hosts of radio show “Berate the Brides” where they reviewed pics in newspaper wedding announcements and invited listeners to vote for “dog of the week”. D’s named P dog of the week and said hurtful comments. Liable for IIED b/c intent to hurt her and low social value hurting brides. ii. Words not usually enough (unless D knew how sensitive P was) 1. Greer v. Medders – P recovering from surgery in hospital bed w/ wife on hand, D (doctor left to care for P), made harsh comments to P, and also to wife which made her cry and D to experience episodes of shaking which required treatment. D liable for IIED, given P was post-op and fragile. iii. Must be beyond mean and hurtful 1. Roberts v. Saylor – D had poor medical history with patient P, and had settled a previous malpractice suit. Years later, while P was lying outside operating room waiting for surgery, D walked by and said, “I don’t like you”. D not liable, for mere insults that may hurt another’s feelings.
P suffered severe emotional distress
i. Conduct such that “no reasonable person could be expected to endure it” 1. Muratore – IIED when employee of cruise ship took pictures of her back against will, displayed pictures w/ superimposed gorilla head, and made statements that “she likes things from the back” ii. Usually have to show that medical aid was required iii. Courts look at the P’s character and susceptibility 1. iv. Court can take into account relationship between P and D 1. Pemberton – No IIED when D sent mug shots of P and information of wife’s affair to P’s union members. D was “rough-and-tumble” labor official, information sent was true, and D did not prove adequate distress. If D aware that P is very sensitive, easier to find IIED. 2. Nickel – D liable for IIED, being P’s psych and marriage counselor, knowing P’s sensitivity, anxiety, made comments to D to break up his marriage, while having affair with P’s wife, only because of D’s relationship with P. r. s. t. v. Bodily harm is a good indicator of severe emotional distress For a 3 rd person, the actor is subject to liability for emotional distress to: i. Member of immediate family who is present (Greer v. Medders) ii. Any other person who is present, if distress results in bodily harm Common Carriers and Public Utilities held to a stricter standard. Domestic violence now takes martial context into account, used to just say keep it in the house not in the courts. i. Feltmeir v. Feltmeir – D beats P wife constantly for years and in front of children. Court held for IIED taking context of relationship into account and lowering the bar for civility in marriages. TRESSPASS TO LAND u. One is subject to trespass, regardless of whether he causes harm, if he intentionally: i. Enters land or another, or causes a thing or 3 rd person to enter land; OR 1. Pegg v. Gray – D’s dogs entered P’s land, causing P’s cattle to stampede, breaking down fence that enclosed them. D owned dogs for fox hunting, intentionally, or knew that dogs would enter the land of another,
v.
2. without that owners consent. D liable for trespass. Malouf v. Dallas Atheletic Country Club – D not liable for golf ball hit that struck P’s car, no intent. ii. Remains on the land without a right to be there; OR iii. Fails to remove from the land a thing which he is under a duty to remove
Intent
i. You just have to voluntarily be on the land, doesn’t matter if you are a completely innocent person or were mistaken about anything 1. D cannot induce you on the land and then claim trespass
w. D is liable for all consequences as a result of trespass, no matter how foreseeable
i. Van Alstyne – D (phone company) liable for trespass when employees left lead drippings behind on P’s land. D liable for death of P’s dogs that ate lead.

x.
y.
RS (2d) Torts § 164 (Intrusions under Mistake): One who intentionally enters land in the possession of another is subject to liability to the possessor of the land as a trespasser, although he acts under a mistaken belief of law or fact
Exceptions
i. Desnick v. ABC – no trespass occurs when a person enters a business open to the public under the pretense of seeking its services but engages in undercover investigative journalism without disrupting the business’ activities. ii. RS (2d) Torts § 166 (Non-Liability for Accidental Intrusions) – Except where the actor is engaged in an abnormally dangerous activity, an unintentional and non-negligent entry on land in the possession of another, or causing a thing or third person to enter the land, does not subject the actor to liability to the possessor even though the entry causes harm to the possessor or to a thing or third person in whose security the possessor has a legally protected interest. DEFENSES TO INTENTIONAL TORTS
z. Consent i. RS (2d) Torts § 892 (Meaning of Consent)
1. Consent is willingness in fact for conduct to occur. It may be manifested by action or inaction an need not be communicated to the actor. 2. If words or conduct are reasonably understood by another to be intended as consent, they constitute apparent consent and are as effective as consent in fact. 3. Comment c (Apparent Consent): Even when the person concerned does not in fact agree to the conduct of the other, his words or acts or even his inaction may manifest a consent that will justify the other in acting in reliance upon them. This is true when the words or acts or silence and inaction, would be understood by a 4. 5. reasonable person as intended to indicate consent and they are in fact so understood by the other. Example: A, young man alone with B, a girl, in moonlight proposes to kiss B. Although inwardly objecting, B says nothing and doesn’t resist nor protests by any word or gesture. A kisses B. A is justified upon the basis of apparent consent. Example: While fighting A threatens to punch B in the nose. B says nothing but stands his ground. A punches B in the nose. A is not justified upon the basis of apparent consent. 6. 7. Example: A permits B to punch him in chest as hard as he can. B does so. Unknown to either of them, A has defective heart and as result of punch drops dead. A’s consent is effective to bar recovery for his death. Example: Same facts as above except without intent or negligence on part of B, A is knocked against valuable vase which is shattered. Same result. 8. ii. If P gave D consent to an intentional interference with P’s person or property, D will not be liable for that interference 1. Example: A consents to fight with B. Unknown to A, B uses brass knuckles and hits A inflicting same harm as if he used his fists. A’s consent not effective to bar his recovery. Can be overridden for public policy reasons
iii. Express Consent iv. Implied Consent
1. Inferred from P’s conduct, custom (customary for P to consent to certain actions by D), or circumstances a. b. Would a reasonable person in the position of D have believed that P consented to the invasion of interests? Werth v. Taylor – D gave blood transfusion to P because she was going to die without it. P was a Jehovah’s Witness, and had filled out form refusing blood transfusion. When talking to P and c. husband, husband was unclear in answer. NL. Law implies implied consent of an unconscious patient to medical procedures needed to save life. Brzoska v. Olson – would it have been reasonable in 1990 to object to having a dentist with AIDS? Maybe, but no real risk b/c no fluid-to-fluid contact necessary to give disease to patients to not reasonable to object so consent was valid. Cohen v. Smith – P admitted to hospital to deliver baby. Religious views made her being seen by d. male doctors delivering a baby not okay. She informed doctors beforehand and there was a male present. No valid consent.
v. Informed Consent
1. Ex. Consent forms by doctors. These are only as good as their clarity and fairness, if unconscionable will be
2.
overturned.
Subjective v. Objective approach
a. Objective approach i. Bernard - whether reasonable person would have consented to the surgery if they had b. been informed of the risks of the surgery before hand? Subjective approach – takes into account specific P and particular operation and whether they would have consented.
c.
i. Used in cosmetic surgery cases. ii. People argue subjective approach places Dr. in jeopardy of patients hindsight and bitterness
Objective approach is majority rule, more administrable, less room for error.

vi. Invalid Consent 1. Mistake
a. b. c. Neal v. Neal – P discovered husband D having an affair. Sued for battery b/c she would not have had sex with him if she knew the affair was occurring and thus the consent she granted to her husband was fraudulently induced. No valid consent b/c sex based on substantial mistake and wasn’t aware of offensiveness until after it happened. If P consented but D knew he was mistaken about some fact of the transaction i. If D did not know of mistake, consent valid If D induced P’s mistake, not valid consent. i. Ex. A permits B to throw walnut juice on his face. A does not know it will stain, B knows this. B liable to A for battery.
2. 3. Criminal Acts
a. If D’s act against P is a criminal act, P’s consent is not valid b. Legislature determines that even express consent is not valid for a criminal act, protects persons against own poor judgment c. d. McNeil (Majority Rule) – Men consented to a fight. Court held consent to an assault is no justification. No defense for defendant in this tort claim. Better for losers in a fight. Hart v. Geysel (Minority Rule) – Consent to unlawful act valid, cannot bring claim. Better for winners in a fightf.
Fraud/Coercion a. Consent is valid/not valid under Fraud/Coercion based on the following:
i. How invasive of a person’s interest was the fraud? ii. Was there bodily harm versus just harm to someone’s dignity? iii. Was the fraud different in kind/lacking the essential character of the offense? iv. Administrability concerns v. Social value/deterrence concerns b. Desnick v. ABC – D sends 7 people posing as patients to P’s eye centers. P agreed to let D shoot the practice but didn’t know they were sending undercovers in. Posers had hidden cameras and critically exposed their practices of discriminating on national TV. P says wouldn’t have consented to ABC being there if he knew their true identities. Consent needed for trespass claim was valid (consent not vitiated) b/c fraudulent entry was not invasive in sense of infringing the kind of interest of the P’s that the law of trespass protects (not an interference with the ownership or possession of land since activities of office not interrupted, space is business and open to public/not a home). i. Policy: Critics are necessary for the good of society (Social Value)
4. 5. Lack of Capacity a. If P is a child, intoxicated, or unconscious, consent not valid. i. Except when P is:
1. Incapacitated 2. Immediate action necessary to save life 3. No indication would not consent if able to 4. A reasonable person would consent ii. Hollerud v. Malamis – P engages in arm wrestling match with bartender while drunk at D’s bar. P sustains injuries to fingers. Consent not valid b/c he was drunk.
Invalid Medical Consent
a. Mohr v. Williams (Different procedures)– Consented for doctor to do surgery on right ear. Doctor did surgery on left ear. P did not consent to this, no implied consent b/c not an emergency and not in course of consented-to surgery. D liable for battery. i. Except when, during the course of consented surgery, D discovers conditions not b. anticipated, which if not removed, would endanger life or health of patient, or
ii. In an emergency
Grabowski v. Quigley (Different surgeons) – P gave consent for D to do surgery. D had to leave, had other doctors perform surgery. D liable because P did not give consent to other doctors. i. Exception: Restatement 52 – when patient goes to hospital and is assigned Dr., relying on hospital, may reasonably be interpreted to include acts of other qualified persons. vii. Ineffective Consent Examples (D is Liable) 1. 2. Counterfeit bill induces blood transfusion Sex with someone and omitting STD results 3. 4. 5. Induce someone into sexual favors at a medical procedure Pose as a meter reader to see someone’s home Pose as a Dr’s assistant to see a delivery
viii. Effective Consent Examples (D not Liable)

1. 2. 3. Counterfeit bill induces prostitute to give it up Dentist operating on patients when he has an STD if being safe about it Misrepresenting sex as love 4. 5. Posing as customer to review restaurant Posing as a patient to expose discrimination
aa. Private Necessity
i. Any person can prevent injury to himself, to his property, or to person or property of a 3 rd person, but liable for injuring another’s private property if there is no other way to prevent harm. ii. If D’s necessity causes damage to P’s property, D liable for those damages
iii. Owner of private property has no right to use reasonable force to resist in necessary situation
1. Ploof v. Putnam – P moored his boat to D’s dock to avoid damage during a serious storm. D’s servant 2. unmoored boat, injuries to P and his boat ensued. P had right to “trespass by necessity”, D liable for damages Texas Midland Ry. Co – D’s liable for making family leave station to walk to shelter in cold rainy weather, causing P to become ill, when D knew of P’s fragile state and vulnerability to illness
iv. Necessity defense does not apply in some cases:
1. London Borough of Southwark v. Williams – Necessity not afforded for homeless people who entered into abandoned house and squatted.
a. Policy
i. Incentive: Too much theft would occur otherwise/alternatives available ii. Fairness: Unfair to people who are waiting for legal housing for others to jump in front of them illegally (but, unfair to have empty buildings not being used and not allow privilege to use them for families who need them) iii. Administrability: Flood of litigation issues, costly for courts to deal with agency could deal with it better iv. Institutional Competency: Agency better suited to deal with it or agency not adequately dealing with it concerns
v. Economic Justification?
1. Property rights must give way when human life or severe property damage is threatened. When situation makes it hard for parties to bargain (transaction costs high), by awarding damages caused, law makes the deal that parties would likely have made if they could have bargained 2. 3. When transaction costs are low, law is more likely to protect property rights by imposing fines on top of damages Vincent v. Lake Erie Trans. Co. – D moored to P’s dock to unload cargo. Violent storm rolled in, and D could not set sail so D takes affirmative act of retying boat to dock. D’s boat caused damage to dock during storm. D must pay for those damages caused. a. Majority (D Always Pays Rule) i. Loss Boat > Loss Dock = Dock
b.
ii. Loss Boat < Loss Dock = Not Dock iii. Minimize cost of overall accident
Dissent (D Never Pays Rule)
i. Loss Boat > Loss Dock = Dock ii. Loss Boat < Loss Dock = Dock iii. Always protect life & health versus property
bb. Public Necessity (Complete privilege defense b/c circumstances can cause harm to many people)
i. Exists where interference with the property of another is necessary, or reasonably appears necessary, to prevent disaster to community or a lot of people.
ii. In these cases, D normally doesn’t have to repay P.
1. Mouse’s Case – P was owner of ship with 50 passengers that began to sink. D’s are the passeneers who threw off cargo to save everybody. D brings action for trespass to goods. No trespass to goods because public necessity justified by danger to everybody’s life. 2. Surocco v. Geary – D mayor of San Fran, ordered for P’s house to be destroyed in an attempt to stop a fire that was raging through the city. D not liable, protection of many outweighs individual property interest.
iii. The D must be careful to decide whether there really is a public necessity deserving of his actions, otherwise can be held liable for the losses that the P may incur from D’s mistake.
1. Struve v. Droge – D landlord saw smoke coming from P’s window. D knocked and received no response. Door was locked to apartment so D broke in, saw no fire and left (smoke came from chimney nearby). D’s efforts caused damages to P’s property. No public necessity defense b/c court wants D’s to be careful about whether there’s a necessity to begin with and quickly act to avert disaster if there isn’t any. Off the hook if you make a reasonable error, but if you make a mistake you have to make good the loss.
NEGLIGENCE (duty + breach + causation + damages)
1. Generally:

2. 3. 4.
5. a.
b. c.
Conduct falling below the standard established by law for the protection of others against unreasonable risk of harm. i. Objective test – did D take reasonable precaution against harm that occurred?
First question – whether D owed a duty of reasonable care to P
i. Duty to act as a reasonable person under the circumstances
Second question – did D breach that duty by failing to use reasonable care?
i. The reasonable person considers foreseeable risks of injury that his conduct will impose on the community ii. The reasonable person considers the extent of the risks posed his conduct iii. The reasonable person considers the likelihood of a risk actually causing harm iv. The reasonable person considers whether alternatives would achieve the same purpose with lesser risk v. The reasonable person considers the costs of various courses of action in determining what is reasonable
1.
Doesn’t always choose precaution which reduces risk of injury, just ones where injury outweighs cost of the precaution
d. Third question – was there factual and proximate cause? Under negligence, will not punish people who were using due care
a. If punished people when using due case, would over-deter normal activities b. c. Do not want to open up the floodgates to litigation Torts are expensive
Under strict liability, will punish person who causes harm even if they are using due care a.
b. c. d. e.
Only for ultra-hazardous and abnormally dangerous activities
Want to control these activities Using care cannot reduce risk of harm No reciprocity of risk in strict liability Leads to more litigation, but much easier to determine in court
Historical Review: Negligence v. Strict Liability
a. Historically, England took a strict liability approach, US took negligence approach b. Rylands v. Fletcher (1868) England – D built a reservoir on his land unaware his neighbor P’s mine shaft. Reservoir burst, flooding and damaging P’s mine. i. A person who for his own purposes keeps anything on his land likely to do harm if it escapes, must keep it at his peril, c. d. and is strictly liable for all the damage which is the natural consequence of its escape ii. D must stop at the natural use of their land Posner says negligence is best standard, because strict liability: i. Forces cost internalization ii. Forces out those activities with greater costs than benefits Losee v. Buchanan – D’s paper mill exploded, caused neighbor P damage, court rejected P’s assertion for strict liability because: e. i. Says business that contributes to the benefit of society is not liable for damage they accidentally do to neighbor, and that D benefitted, and has same right to have things of that nature on his propery ii. Said D had no fault or negligence, had a right to put steam boiler there, it was not a nuisance and there was no negligent handling Brown v. Kendall – D and P’s dogs were fighting, trying to break them up D accidentally hit P in the eye with a stick. NL when undertaking a lawful act and an accidental injury occurs. f. g. Holmes The Common Law – Talks about the necessity of an objective reasonableness standard and why we need to adopt negligence Elements of Negligence (Restatement Second § 281)
a. b. c. d.
i. Put burden of proof on P to prove D acted without due care. Lubin – Strict Liabiliy for D city who deliberately and intentionally left water pipes underground past inspection until they burst. Inherently dangerous activity.
D owed P a legal duty to conduct himself to certain standards Failure by D to conform his conduct to this standard of duty (breach) D’s failure to act with reasonable care was the cause in fact in P’s injury i. But For causation (Factual causation) There is sufficiently close connection b/w D’s act of negligence and P’s harm i. Proximate cause (Legal cause) e. P suffered actual damage DUTIES AND LIMITATIONS 1. General Guidelines: a. Sources of Duties i. Affirmative acts ii. Special Relationships iii. Land owners b. Limits i. Pure Economic Losses

2. 3. 4. 5. 6.
c. ii. Negligent Infliction of Emotional Distress iii. Foreseeable P (Cardozo) Generally:
i. If you don’t take an affirmative action and you don’t have a situation where there are exceptions where duty arises from other action or legal responsibility, there is no general duty. ii. Risk Creation (90% of Tort Cases)  defendant’s choice to engage in risk-creating conduct for his own benefit imposes the reciprocal duty to exercise due care toward those who may foreseeably be injured by it! Affirmative Acts and Undertakings a. Affirmative Act – sort of act where law imposes a duty because it creates risks for others b. Affirmative Duty – duty of behaving towards P with a degree of care that a reasonable person would exercise in like circumstances c. d. A defendant ordinarily cannot be held liable for doing nothing, even if failure to act causes P harm. i. Nonfeasance – doing nothing, NL (most of the time) ii. Misfeasance – affirmative acts done carelessly, D may be held liable RKO Radio General – D radio station announced first person to locate stations red van would receive cash prize. Two teens racing to get to man forced P off road killing her. D Liable. D’s affirmative act created risk of harm, misfeasance. Blocking Rescues a. General Rule: If there is an imminent threat of physical harm, there may be a duty. If not, no duty usually. b. Globe Malleable Iron – Fire broke out at P’s factory. D’s train blocked fire trucks from reaching fire at several rail crossings. D c. could have easily stopped train. D liable. Should manage its trains not to increase the public hazard. Soldano – L for D who didn’t allow man to use phone at his bar to call cops and report threat of man being murdered. Man was soon murdered. Business open to public, during time of business, has duty only when threat of imminent harm exists. d. Stangle – NL for D who had no duty to allow P to use phone to cops and report theft that occurred b/c only for staff use and no imminent threat of physical harm. Duty to Rescue a. General Rule: unless you have a special relationship with P, you don’t have a duty to rescue him, unless you cause the risk/injury. b. i. Ex. A, seeing B drowning, has no duty to rescue him Posner Criticism – Should have a duty to rescue i. Rule is inefficient as it causes social loss and prevents people from using info/ability to gain wealth, especially from low cost rescues (people would pay a lot to be rescued) c. d.
e.
ii. Requiring a rescue would be efficient for society Yania v. Bigan – D asked P to jump into trench to help him start a pump. P jumped in and ended up drowning. D did not go for help after P jumped in. i. D had no duty to rescue P, P voluntarily undertook the affirmative act that placed him in danger ii. D did not force P to do it. Would be different if P was a child or mentally deficient Hurley v. Eddingfield – D physician refused to threat P who ended up dying. NL. i. Dr. has not legal duty to rescue/provide treatment to all who request it.
Good Samaritan Doctine
i. If D voluntarily begins to render assistance, she must proceed with reasonable care, and may not discontinue her aid, if it leaves P worse off than if left alone Duties Arising From Undertakings a. Sometimes, a D who had no duty may acquire a duty by undertaking to provide assistance or voluntarily assuming responsibility. Don’t want people who don’t know how to rescue properly to attempt to resuce. b. Liable if after undertaking such a duty, D:
i. Fails to exercise due care and increases risk of harm ii. The harm is suffered because P relies upon the undertaking
iii. O’Neill – P brought husband to hospital after suffering symptoms of a heart attack. Hospital did no accept their fell and died. D liable. D undertook action to save P, negligently performed the undertaking which killed P. v. Frank v. US – P wife sues Coast Guard b/c tugging husband and he decided to walk along boat in motion and fell off, stopped the boat to let him get back on but he drowned. No Liability b/c only duty they undertook was towing of boat and no duty to rescue him unless they made affirmative act to do so (ie. turning the boat around, which they didn’t do ) Special Relationships
a. Doing nothing when a special relationship exists between P and D may lead to liability.
i. Trans-Pacific Fishing Co – three crewmen on fishing boat were washed off boat by a wave. Captain did not search for them b/c it was dangerous. Court found D liable. Special relationship btwn ship owner and crew creates duty to use every possible means to rescue from the sea crewmen and persons who go overboard. D neglected this duty, and was
b.
insurance plan. P called Dr., who after hearing of his symptoms told them to return next day at 8am. Man died when he got home. Physician who undertakes to examine or treat a patient, and then abandons him, may be held liable for malpractice. P relied on this medical advice. iv. US v. Lawter – Coast guard attempted to rescue P. While raising her to helicopter, did not raise cable high enough, she negligent in not using best efforts to search and rescue the men.
Common Carriers

7. 8.
c.
i. Brosnahan – Passenger dropped bag on P’s head on airplane. D breached duty to P because they did not have attendants stationed to help passengers.
Social Hosts
i. Charles – D not liable for serving alcohol to party guest who died driving home. ii. Kelley (minority) – Host liable for drunken guest who crashed w 3 rd party Duties to Protect Others from Third Parties a. There are situations where D has a duty to protect a P from a third party, when D has special relationship with such third party. b.
c.
Examples: Businessman/patron, employer/employee, hospital/patient
Doctor Patient i. Dr. patient confidentiality may be broken if it will save people from danger
1. Dr’s have a problem with this, takes away from therapy, gives them incentive to not take on patients who may be dangerous ii. Tarasoff v. Regents U of Cal – P was murdered by a patient of D who had confided his intentions to kill the girl. D did not warn P or family of danger. D liable. 1. Therapist has a duty to warn foreseeable victims of threats when there is a serious likelihood of violence. 2. This rule will not usually be applied unless specific victim is known iii. Thompson – Five-year-old boy murdered by D. County had known D was dangerous and planned on doing harm
d. e.
before releasing him. Specific victim was not known, not reasonable to warn whole community.
Landlord Tenant
i. Kline – P assaulted in apartment. Apartment had removed their doorman, and a number of tenants had already been robbed in building. D liable. Type of injury was foreseeable, was a special relationship; D could have taken measures to prevent it.
Public Entity and Citizen
i. Riss v. City of NY – P broke up with man who made threats to her life. She reported it to police numerous times. He killed. City not liable, imposing general duty for city to protect all citizens would be expensive and inefficient. ii. Schuster v. City of NY – Court found city does have a duty to protect people who collaborate with police to arrest someone, from foreseeable dangers resulting. Duties of Land Owners and Occupiers a. The standard of care applied to land owners varies according to the type of person on the land, and the type of activity that caused the damage to the person. i. Activities: injury to P derived from the conduct of person on land ii. Artificial Conditions: the injury to P derived from circumstances created by persons on the land, such as building and b. cultivation iii. Natural Conditions: the injury to P derived from circumstances not created by persons but naturally existing on land. Trespassers: i. General rule: Owner owes no duty to a trespasser, including duty to warn of artificial dangerous activities. (Cant intentionally injure from reckless conduct) 1. 2. Haskins – D hunting woodchucks on his property, thinking he saw one, shot it, turned out to be P. NL for mere negligence to trespassers. People invited can become trespassers if they fail to stay within scope of area, or they stay longer than allowed. ii. Exceptions:
1. Discovered/Anticipated Trespassers a. b. c. Owner has a duty to warn them of any known artificial dangerous conditions on land that could potentially cause harm Do not have to warn of natural conditions Duty to trespassers that D knows are there
i. Herrick – D liable to P for damages suffered from firework hitting his eye at D’s circus. While P was a trespasser, he was sitting in crowd and was known and discovered. Injury from dangerous activity.
2. Attractive Nuisance a. Owner has a complete duty to warn and prevent child trespassers if:
i. Owner knows children are likely to trespass ii. Owner knows an artificial condition poses an unreasonable risk of serious injury or death to children iii. Child cannot realize the danger posed iv. Benefit to owner is slight v. risk to child v. Owner failed to use reasonable care to eliminate the danger to protect children b. Keffe – P (7 years old) caught leg in D’s railroad turntable causing serious injury. Turntable was unfenced. Found D liable because he knew it was attractive, was dangerous to children, and knew that children were in the habit of playing on it.

c. d. c. Ryan – D not liable when kids broke hole in wall to get into his abandoned warehouse and are then injured. Licensees
i. A licensee is a person who has the owners consent to be on the property, but is not there for business purposes. Only thing entitling him is the consent. (Social Guests)
ii. General Rule: Must exercise reasonable care towards licensee and:
1. Duty to warn of known hidden dangers, including natural conditions
a. b. Do not have to warn of open and obvious dangers No duty to fix condition, just to adequately warn
2. No duty to inspect for dangers, just to warn of known dangers iii. Fireman’s Rule: Fireman/police are mostly treated as licensees; therefore you have a duty to warn of known dangers if you are there
1. Some states treat them as invitees 2. 3. If owner misrepresents dangers, some allow negligence for injury Some only allow lawsuits for negligence iv. Davies – P went to father in laws to take care of him. P and Father died of carbon monoxide poisoning. P was a social guest, therefore because D did not know about the sealed furnace, No Liability. v. Lordi – D was told to turn off gas in basement. P later went down and struck a match, causing deadly explosion. D liable. Knew gas was on and did not fix it. Invitees i. Public Invitee – person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public ii. Business Visitor – person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealing with land owner
iii. General Rule: Must exercise reasonable care towards invitee and 1. 2. 3. Duty to inspect premises for hidden dangers and make reasonably safe Duty to remedy these dangers, or to warn and make sure injury does not occur
a. Must inspect, warn, or fix natural conditions
Duty to take reasonable exercise of control over 3 rd persons on premises
a. Security measures to prevent attack or theft 4. Owner is usually liable to others for harm caused by a failure of on of their agents to perform a duty
5. Non emergency public employees normally treated as invitees
iv. City of Boca Raton v. Mattef – P hired by city to paint sign. Contract was not yet ready, but P took his equip and went to do work anyways. Rung on ladder attached to tower broke, causing Mattef’s death. Court held there was no e. liability. He was not yet an invitee because he had not yet been invited to do the work. He was at most a licensee, and owner did not know of danger. v. Jacobsma – P shopping in D’s store. Man robbing the store tried to flee. Manager yelled “stop thief”. P grabbed the man and they struggled, causing P to be injured. Managers call for help seen as requesting for assistance. Was also a benefit to D that P stop the man. D liable to P because P was an invitee. Rulings against Classification System i. Rowland v. Christian (California) – P cut his hand on D’s faucet while a guest in her apartment. Cal Supreme Court ruled that distinctions between duties owed to different classes of guests are obsolete. D argued crack in faucet was obvious, but did know it was there and harmful. Found failure to warn of this harmful risk was breach of due care regardless of P’s status. (Minority Outlier – eliminating distinctions) ii. Eleven states have abolished distinction between all classes iii. 9 states have abolished the distinction only btwn Invitees and Licensees. iv. Having no distinction gives greater ability for cases to get through and go to a jury over the negligence claim LIMITATIONS ON DUTIES f. Pure Economic Losses i. General rule: If P doesn’t suffer any property or physical damage, only suffer economic losses, which don’t result out of breach of contract – No Recovery 1. Third party being injured by breach of K which they were not involved in cannot recover purely economic losses. ii. Robins v. Flint – P chartered a boat from D. Agreement was that boat could be withdrawn for service every 6 months. During service found a crack in propeller, hired D to fix it. One of D’s employees dropped the replacement prop, breaking it, delaying P from using boat for 2 more weeks. P sued for losses suffered during 2 weeks lost time. NL. D had no obligation to P, different if P and D were in own K. iii. Madison Ave. Gourmet Foods – D’s building collapsed during renovations, causing P’s to shut down business because debris from collapse closed road-preventing business. NY Ct. of App. Reversed, holding NL. Landowner owes no duty to protect entire area from pure economic losses, even if resulting from his negligence.

g. h. iv. Barber Lines – D’s ship spilled oil in Boston Harbor, preventing P’s ship from docking and incurring damages. Court found NL for D. 1. Administerability – foreseeablilty standard makes it hard to draw lines. Most P’s foreseeable to a certain 2. extent. Can handle these claims through insurance, or attaching claim with another party Disproportionality – Imposing liability in these situations creates chilling effect, opens floodgates to litigation, gives P no incentive to limit damages
v. BP Oil Spill Article/Discussion in Class
1. 2. 3. 4. Direct property damage and bodily injury from accident First order economic loss profits from people who make living off gulf Second order economic loss by the future losses (people who wont take vacations there now) Should be able to recover because they acted badly (not taking precautions they knew of), and special class of foreseeability oil rigs vi. Exceptions? 1. Newlin – P owned mushroom factory. D owned telephone pole, which fell over, causing D to loose power, ruining mushrooms. Court held liability for D for negligently maintaining its pole. 2. 3. Why? a. Actually suffered somewhat physical damage? b. Utility companies held to higher standard? People Express Airlines – fire started at D’s rail yard, city ordered evacuation of 1-mile radius, including P’s terminal at airport. Employees unable to work and flights cancelled. Court held D liable. Held that in this case, due to P’s close proximity, D’s knowledge of risk of their own activities, and foreeability that this would happen to P, allow for recovery. Negligent Infliction of Emotional Distress 1. Generally: It must be reasonably foreseeable that the act may cause emotional distress to P i. Impact Rule (Minority): No NIED if there is no impact resulting in physical injury. Since fright alone not a cause of action, consequences of fright alone not a cause of action. ii. Zone of Danger Rule: If you weren’t physically injured, you can recover if you were within the zone of danger. 1. Robb v. Penn. Railroad Co – D negligently allowed rut to form on railroad track. P’s tire got stuck, P saw train coming, jumped from car seconds before car was crushed by train. P suffered great fright and shock interfering with ability to nurse her child and work as a horse breeder. a. b. Trial judge – NL under Impact Rule. Appeal – Rejected impact rule. Found P should be able to recover if in immediate zone of danger, and fright from this manifests into a physical injury proximately caused by D’s negligence.
Bystanders?
i. A third person cannot recover for seeing an injury occur only if they were in the zone of danger themselves.
ii. Dillon Test:
1. How close was the bystander to the accident? 2. 3. anticipated for a witness.
iii. There is split authority on whether you actually have to be there and see the accident occur:
1. Marzolf – L when father arrived at scene of accident 10 minutes after it happened and saw his son actually 2. 3. 4. Did bystander actually see the accident occur? How closely related was the victim to the bystander? a. To recover, one still must experience severe emotional disturbance, beyond reaction normally die. Gain – NL when father saw footage on TV of son dying Barnhill – L when son saw his mother traveling behind him get in an accident. She was minimally injured. He claimed physical damages due to worrying about his mother. (Mistaken about extent of injuries) Barnes – NL for mother who thought she saw son get into accident but turned out to be different person (Mistaken about victim of accident)
EVALUATING WHETHER STANDARD OF CARE WAS BREACHED: (1)
 The Reasonable Person Standard f. Would a reasonable person under the circumstances behave the same way?
g. Personal Circumstances That Raise or Lower Standard of Care i. Physical characteristics of D are taken into account
1. Physical Supremacies - standard of care raised to meet added abilities to avert harm a. Ex. Man who is unusually strong is negligent for letting horses run away, where a man of ordinary 2. strength would not be able to Physical Deficiencies – ill or physically disabled person must confirm to standard of reasonable man with similar illness or disability a. Kerr v. Connecticut Co – reasonably prudent deaf man – P was walking on railroad track hard of hearing, D driving train sounded gong and applied brakes but hit and killed P. P actually negligent b/c he didn’t take such care as a reasonably prudent deaf man by looking around him.

h.
b. Davis v. Feinstein – D liable when blind man fell through open cellar door b/c took reasonable precaution using cane and blind men can’t feel every single thing on the street, just a reasonable amount. P not contributory negligent. ii. Mental characteristics - (dumb, ignorant) of D usually not taken into account 1. Vaughan v. Menlove – D’s liable for fire near P’s property caused by haystack that destroyed P’s barn, 2. stables & cottages. Being unintelligent not an excuse, held to reasonable person standard Lynch v. Rosenthal (outlier case) – P 22 year old man w/ mental capacity of 10 year old living on D’s farm after D’s wife took him out of mental retardation institute. D asked him to walk behind corn picker, P stumbled into picker and cut arm off. D liable b/c P needs special consideration in cases where tort committed by caretaker not giving reasonable care knowing condition. Wiers v. Jones County – No liability for county when P couldn’t read but bridge posted “unsafe” and he 3. drives wagon over it and falls killing his horses and destroying his wagon. Court thinks learning English is a socially valuable trait and D took reasonable precautions.
iii. Physical vs. Mental Infirmities Note
1. Distinct Defects (Holmes): People can recognize distinct defects and take precautions; easier to spot physical infirmities so more leeway given to them than people with mental infirmities iv. Religion – at times court will take in consideration the religion of the person, and its influence on the decision they made 1. Freedman v. State – P Jewish 16 year old girl not allowed to stay in place with man without access form third party stuck on chairlift with guy friend operated by D ski resort. Act of jumping from chairlift to get help when D accidentally shut it down for the night reasonable. D liable. v. Professionals – one who engages in an occupation must recognize their skill with reasonable and ordinary care. If you engage in a profession, you are held to standard of reasonable person in that profession. Specialists held to even higher standard than general practitioner. 1. Fredricks v. Castora - P riding in car hit by two trucks driven by D professional drivers with over twenty years of experience. D not Liable b/c everybody, not just professionals drive and therefore standard of care for driving encompasses entire population and they acted as reasonably and ordinary as everyone else. vi. Age – Children are held to a standard of reasonable person with the same age, intelligence, and experience. 1. Purtle v. Shelton – D accidentally shot P while hunting. P barred for recovery because he’s equally contributory neg. D could only be neg. if he failed to use degree of care reasonable person of his age/intell 2. and hunting has no adult-only standard. Exception: If activity is dangerous to others, and normally only engaged in by adults, will hold D to
3.
4. standard of a reasonable adult. a. Dellwo v. Pearson – D, 12 year old boy driving powerboat hurting P held to adult standard b/c driving adult activity and no way to know if you’re encountering a driving minor.
Other standard for child negligence (minority rule)?
a. <5/7 years – Incapable of negligence b. c. d. 5/7 – 11 – presumed to not be negligent > 14 – are capable of negligence Dunn v. Teti – P & D six year old boys, D swings stick negligently and injures P. No liability b/c e. six year olds are incapable of negligence per rule above. Briese v. Maechtle – 9 & 10 year old boys playing during recess. P playing marbles, D playing tag. D runs into P and injures him. No liability. Not battery b/c unlike Vossburg when class was called to order, playing not unlawful during recess time. Older people do not have reduced standard of care. a. Roberts v. Ring – P’s son was 7 year old hit by D 77 year old driver with defective sight & hearing. D travelling at 4 miles an hour, saw boy five feet in front of car and couldn’t stop, drove over him killing him. D Liable b/c elderly is adult capable of normal reasonable qualities of mind and body and should be held to reasonable person standard while child didn’t know any better. Burden on D not to make the mistake if elderly. vii. Insanity or mental deficiency - is not an exception to negligence unless it is sudden and hasn’t been experienced before. If know about condition, must use precaution. 1. Williams v. Hays – D captain of ship not liable for neg. when battling storm was up for 3 days battling storm, bringing about insanity, ship crashed. viii. Gender – Generally no difference in reasonable standard of care based on gender 1. Mich. Cent. R.R. Co v. Hasseneyer – 13 year old girl carrying milk along road approaches train track and train sounds horn. Girl crosses track and hit and killed. Held contributory negligent b/c women can enter into any profession as men can and can exhibit same reasonable care as men.
Knowledge of reasonable person i. Ordinary experience of a reasonable person 1. Strangers held to same standard as people living in the community ii. May have a duty to investigate if reasonable person would think something is wrong

EVALUATING WHETHER STANDARD OF CARE WAS BREACHED: (2)
 The Hand Formula
i. D’s conduct imposed an unreasonable risk of harm to P
i. D’s conduct must be viewed at the time it occurred, without hindsight
j. Tests used to determine if reasonable care was used (would a reasonable person take a precaution?) i. Cheapest Cost Avoider
1. Who can avoid the injury at the cheapest cost? a. Normally the person who has more knowledge of the type or specific situations.
ii. Learned Hand Formula – not used by juries, either used by appellate courts if appeal couched in cost-benefit terms or ignored by disposing of cost-benefit claims under reasonable person standard. 1. B > P*L = Not Negligent. B < P*L = Negligent.
a. b. B = burden/cost of D to take adequate precaution to avoid the injury P = probability of injury occurring (objectively). 2. c. L = Loss/Injury/Cost of injury to P U.S. v. Carroll Towing Co. – D did not have an employee on barge while it was tied to other barges. 3. 4. 5.
6.
Employee was included by D in contract for package deal. Broke loose and caused damage. B was low to keep someone on duty, P and L were high, and thus D was negligent. Criticisms of hand formula? – doesn’t account for if P was contributory negligent, treats others as means to ones own ends if private benefit outweighs others expected losses. Adams v. Bullock – P swinging long wire while crossing bridge. Wire made contact with D’s trolley wire under bridge, causing P injury. D not negligent. Was not foreseeable that kid would be swinging long wire. Could not touch wire normally if on bridge. Other precautions unreasonable b/c insulation of wires impossible and only other option to put them underground. Trolley beneficial to society as well. B was high; P and L were somewhat low. No negligence. Bolton v Stone – No liability for cricket club owner when ball was hit into P’s yard across the street that injured her. Evidence showed only on rare occasions have balls been hit out of field in 30 years and never injured anyone, and hit was extraordinarily powerful in this circumstance. Acted reasonable given low P and somewhat low L.
Marginal Cost Analysis of Bolton
a. No Fence. B = 0, P*L = 5000 b. c. 7 Ft Fence. B = 2000, P*L = 1000 i. Should build. 2000 < 5000-1000 10 Ft Fence. B = 2500, P*L = 900 i. Comparing 7 ft to 10 ft. Don’t Build
k.
l. 1. 2500-2000 > 1000-900 ii. 10 ft. vs. No Fence? Build. 1. 2500 < 4100
iii. Should you rescue?
1. Eckert v. Long Island RR – P ran out on tracks to save child, P was killed by train instead. Voluntarily saving a child’s life, unless reckless, is not negligence. Reasonable person would do so, want to encourage this. a. Posner’s Recent Different Analysis i. P of child killing if no rescue attempted > P that Eckert would certainly be killed ii. Eckert life value at least = Child Life value iii. Expected B of rescue to RR in reducing liability cost to parents > cost of rescue 2. iv. RR would have hired Eckert to attempt rescue so it should compensate him! Margharita – P fell overboard and shark bit half leg off before being pulled aboard. D did not diverge from path to seek aid. Not Liable because P’s injuries did not get worse, only suffered more pain that would beyond worst stage soon anyway, and D would have suffered heavy losses if he did decide to break path and go to nearest port. a. B derailing ship High > P (high) * L Pain Temporary is low
Wrights Utility Risk Analysis
i. Need to take into account the social utility of the activity. The greater to social utility of an act, less likely D will be found to have breached duty. 1. Ex. Driving. High P of colliding with others, high L. Fairly low B of driving slower or avoiding driving. Utility of driving so great, such precautions are outweighed, and a reasonable person would not undertake them. Most of the cases in this section, those dealt with under the hand formula, have to do Durable Precautions, or some sort of safety measure that can be implemented with a single decision (hiring a bargee, running trolley wires under ground). Compliance errors are momentary failures to take repetitive cautions that violate reasonable standard of care (such as failing to look both ways). Law does not forgive these compliance errors. i. Ex. Davis v. Consolidated Rail Corp – Conductors failure to blow horn before moving train a compliance error.

EVALUATING WHETHER STANDARD OF CARE WAS BREACHED (3)
 Customs and Standard of Care m. Generally – Look at industry custom, risk of injury, and B (cost of precaution). i. Normally customs can be looked at but are not conclusive or controlling (compliance w/custom no defense) 1. Jury may consider it when looking at reasonableness, but not totally determanitive of whether a reasonable person should take a precaution ii. TJ Hopper – D’s tugboat lost cargo bc of storm, did not know of storm because they did not have working radios. Custom showed that some had radios some didn’t. Court held that had their been radios, would have gotten weather reports, injury was a direct result of seaworthiness. D liable. (B low? P*L high?) iii. Ellis v. Lousiville & Nashville Ry – NL for D not providing masks to P; was following strict industry custom. 1. Policy: Court may have thought more socially important to make tugboats have radios than preventing breathing sand. iv. MacDougall v. Penn Power & Light Co – P electrocuted when head bumped fuse box installed by D when raining out on roof. D liable, even though following custom of not posting warning on box. Where custom is obviously dangerous, not a justification. v. Rodi Yachts Inc v. National Marine, Inc – Where there is no contractual relationship, there is no way for injured persons to incentivize D to take better standard of care. Defer to custom for standard of care. n. Custom and Medical Malpractice i. Locality rule for Dr’s (Minority) - Dr. must adhere to the accepted practices of similar community, with similar facilities and access to recourses. 1. Gambill v. Stoud – D aborted P’s wife’s operation b/c of anesthesia problems and as result wife suffers cardiac arrest & brain damage. NL under locality rule. Court refused national standard rule, holding Dr’s in small towns do not have access to same info as those in big cities. ii. Locality rule for Facilities (Majority) – Standard of care is of similar hospitals of similar communities 1. Johnson v. Wills Memorial Hospital & Nursing Home – Patient in D’s hospital went crazy and jumped outside window and died after staying in cold for too long. Sheriff deputy stationed outside the room but didn’t check for three hours after he initially went nuts. NL b/c local standard applied. iii. Majority rule – national standard of care. Professional must act with level of skill and learning commonly expressed by members of profession in good standing. 1. Court may make allowances if D has below-average recources 2. 3. Usually need expert testimony to prove national standard Brune v. Belinkoff – D, following local customary dose administered 8mg. National standard was 5mg or less. Using national standard, found D negligent iv. Specialists usually held to a higher standard of care v. Physicians have a duty to disclose to patients all information that a reasonable DR. would disclose to enable patient to give informed consent 1. 2. 3. Unless patient is unconscious and procedure necessary to save life If severe injury or death may result, must be disclosed Bernard – P went to D with tooth pain. D said either root canal or extraction. P chose extraction bc couldn’t afford canal. P suffered injuries from extraction. D liable for not informing of risks. vi. If you hold yourself to be a licensed professional, even though you aren’t licensed, still held to a reasonable professionals standard of care. Brown v. Shyne. vii. Legal Malpractice: Locality Rule Majority b/c every state has different licensing and rules for law 1. Cook v. Iron: P tripped on sidewalk in El Paso and hired D lawyer. D lawyer only sued one of three potential defendants. P’s expert from Alpine, TX says D failed to exercise standard of care for legal practitioner in TX for not suing all three potential D’s. NL b/c expert was inadequate (in vastly different locality from El Paso and can’t question El Paso’s experienced attorney). NEGLIGENCE PER SE: (1)  CRIMINAL STATUTES o. Definition: i. When D violates a rule or statute, that has a close application to the facts, this unexcused violation establishes p. negligence per se 1. Can establish negligence as a matter of law 2. Can be presented to the jury as evidence of negligence Elements: i. D violated a statute 1. 2. If you cant prove the rest of the elements, this is still evidence of neg. Martin v. Herzog – P driving at night w/o lights on. D veered into middle of road. Accident ensued. Violating statute of driving without lights on at night negligent in itself. Lights being on may have prevented accident. ii. Statute was designed to protect against same type of accident caused by D’s conduct

q. 1. 2. 2. Gorris v. Scott – P’s sheep swept overboard when storm hit. Statute says sheep must be kept in cages, to prevent spread of disease. Not negligence per se because this was not accident statute meant to protect. Ross v. Hartman - D driver left truck unlocked with unlocked gear shift and keys in ignition in public alley. Person steals truck and runs over P. P sues D b/c violated traffic ordinance saying you cant leave vehicles unlocked with key in ignition. D liable b/c statute designed to protect against this exact accident. iii. The victim falls w/in the class of persons the statute was designed to protect 1. Tingle – D’s train ran over P’s cow. Train was operating on Sunday in violation of state law. No neg per se. Statute not meant to protect cows. Segler – Dog pooped on sidewalk in front of D’s store. P slipped on it and was injured. Statute says D must 3. 4. keep sidewalk clean. Not negligent. Duty was owed to city to keep it clean, not to public to keep sidewalk safe. White v. Levarn (Outlier) – P & D squirrel hunting. P wore hate color of gray squirrel and D shot at it. Negligence per se b/c statute said cant discharge firearms on Sunday. Outlier b/c they both went hunting together, not sure if this is who statute meant to protect. Vesely v. Sager – P injured by drunk driver. P sued bar that served him alcohol. Statute against serving of drinks to any intoxicated person. D negligent per se by violating statute, statute meant to prevent these accidents, and P fell within class of victims statute meant to protect. (statute amended making proximate cause consumption of alcohol rather than serving of alcohol). iv. Have to have a duty to person or thing injured v. If you don’t prove negligence per se, you can use evidence to go into breach analysis Excuse of Violation: i. Excused because of D’s disability/incapacity (minors too) ii. D exercised reasonable care in attempting to comply w/ statute but was unsuccessful 1. Ex – D’s light goes out while driving at night. Didn’t know. iii. D violated statute to avoid greater risk of harm than complying (Emergencies) 1. Tedla – Statute saying must walk on one side of road. P was walking on other side violating statute because the correct side of the road had heavy traffic, whereas the other side had almost no traffic. Violation of statute excused b/c safer alternative taken. iv. Contributory negligence of P v. Reasonable ignorance or confusion and then acted reasonably (exercise due care but violate statute by ignorance and you’re let off) NEGLIGENCE PER SE: (2)  JUDGE MADE RULES r. s. Judge can rule negligence as a matter of law, or allow jury to decide. Holmes – The Common Law i. Tort law should be reduced to objective, readily applied rules by judge. t. u. Baltimore & Ohio RR v. Goodman – Judge Holmes - P crossing railway, view was obscured, continued over railway and was hit by train. Found P’s failure to stop, look and listen was negligence as a matter of law. Holmes said when dealing with a clear standard of conduct, court lays down the law. Pokora v Wabash Ry – Cardozo – P was struck by train when crossing railway. P stopped, looked and listened, but view was obscured, could not have safely looked if train was coming. Cardozo says P was not cont. negligent, and that issue should have v. gone to the jury. Theisen v. Milwaukee Automobile – D negligent as a matter of law for falling asleep at the wheel while driving. Foreseeable to fall asleep at the wheel at 3am when exhausted from lack of sleep. i. Does not apply to cases where loss of consciousness resulted from unforeseeable circumstance w/ no warning (sudden illness, heart attack, etc.) w. Blaak v. Davidson – question of negligence should go to the jury when D, during sudden dust storm looses visibility, slows down but still hits P’s car. i. Torts is a jury driven field: 1. 2. 3. 4. Questions of fact decided by juries Findings of law by judge are much easier to overturn Judge can restrict evidence that a jury hears Jury has power to nullify.
RES IPSA LOQUITUR
x. Definition: i. The action speaks for itself, prove negligence when evidence is not available 1. Is not factual causation 2. Proves negligence in reasonableness, must do separate causation analysis ii. “There must be reasonable negligence. Where the thing is shown to be under the arrangement of the defendant or his servants and the accident is such as in the ordinary course of things does not happen if those who have the management

y.
use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.”
Elements: Must meet them all
i. There is no direct evidence of D’s conduct in connection to the event ii. The event is the kind which ordinarily doesn’t occur without negligence 1. Accident is of a type that ordinarily does not happen without negligence iii. The instrument which caused the injury was in D’s exclusive control
z.
1. Negligence is attributable to the defendant iv. P must not have contributed to the injury
Burden of Proof i. D bears burden of proof
ii. Avoid Pockets of Immunity iii. Information Forcing: Access to information/joint, otherwise won’t rat out
aa. Cases:
bb. Byrne v. Boadle – barrel of flower fell from D’s business on P’s head. Even though no evidence that D was negligent, was likely that someone in D’s control was negligent, and D has better access to evidence allowing him to defend case. cc. Hunsberger – No res ipsa when D, working in factory, using wedge, which slips out and falls down shaft injuring P. Mere falling of tool on construction site cannot be presumed to have resulted from negligence. Might be different if tool fell onto a highway. dd. Larson – No res ipsa when chair falls from hotel and injures P. D does not have exclusive control over furniture, guests have partial control. Care may not have prevented this. ee. Connolly – Res ipsa when P hit by mud falling out of hotel into eyes and D already gave notice to patrons that they shouldn’t be doing that stuff which means they knew it was happening and could’ve taken more action to prevent it. ff. Brauner – P hits cow on highway in car. Cow can readily escape from adequate confines, does not prove res ipsa. gg. Guthrie – res ipsa when D keeps 600 lb bull on second floor of building hh. Wilson – post op infection does not prove negligence when chance of infection is rare. ii. Judson v. Giant Powder Co – explosion occurred at D’s dynamite factory. No evidence from either side as to cause. Court applied res ipsa, holding that no explosion would have occurred under due care. i. Policy: When equality of ignorance by both parties and no evidence of no neg. provided by D, P will always win. We allow this b/c pockets of immunity for defendants would be unfair where there is a high probability of D’s negligence being the cause. jj. ii. NL for boat that disappears at sea (Walston) v. L for plane that disappears (Haasman)? 1. Policy: Accidents w/ most safety equip are strongest res ipsa cases. Most accidents on airplanes avoidable with technology and low chance of survival in accidents, rather than on boats where technology is usually ancient and higher chances for survival in accidents. Res Ipsa With Multiple Parties? i. Ybarra v. Spangard – P awoke from appendix surgery w/ pain in shoulder. P sued all doctors, nurses, and hospital under Res Ipsa Loquitur 1. Where D is unconscious, and suffers unusual injury in course of medical treatment, all those D’s who had control over body or instrumentalities may be liable 2. Will help eliminate the conspiracy of silence, where D’s stick up for each other and no one talks. Gives parties incentive to talk. ii. Bond v. Otis Elevator – P in elevator that one D owned and other D operated that free-fell and resulted in P being injured. Res Ipsa b/c one party needs to fess up. iii. Wolf v. American Tract Society – Brick fell on P’s head under building where 19 independent contractors were working. No Res Ipsa. 1. 2. All actors were independent of each other, Res Ipsa would not bring about new information b/c parties do not know who dropped brick Generally, when court thinks that D’s have knowledge of who was at fault, will use Res Ipsa, however, if numerous parties and cant know who was negligent, do not iv. Samson v. Riesing (Turkey Problem) – P gets salmonella poisoning from turkey salad that 9 mothers of high school contributed to indepdendently at home before combining it. 1. 2. Res Ipsa Should Apply Argument – 1 out of 9 knows, pressure to rat one out Res Ipsa Shouldn’t Apply  Can’t rat out because how the hell would they know?
CAUSATION (Cause-in-Fact + Proximate Causation)
1. Cause in Fact/Factual Causation a. First must show but for D’s negligent act, the injury wouldn’t have occurred b. P’s injuries were more likely than not caused by D’s breach of duty c. P usually bears the burden of proof for proving actual cause (except in double faults)
d. More Likely than Not?
i. Speculative but for causation not enough to prove negligence

2. e. f.
g.
h. ii. NY Central RR v. Grimstad – P falls of D’s boat. Wife sues for wrongful death for negligently failing to provide lifesaving equipment. Court finds NL. Says it is speculative to determine what outcome would have been with preservers on boat. Exceptions? – Courts hold cause in fact, even if not certain, to avoid pockets of immunity i. Gardner v. Bulk Carriers – P a seaman aboard D’s vessel. P was found missing. D did not alter speed or go back and look for him. Court held D liable. People who fall overboard often survive for many hours. Turning around would have created no risk. Found failure to turn around breached duty, and was likely cause of death. ii. Haft v. Lone Palm Hotel – P’s son and husband died in D’s pool. D violated statute by failing to provide lifeguard or sign that no lifeguard was present. Court held D’s violation to comply with statute was negligent, and this switched burden of proof on them to prove was not proximate cause of death. They did not prove this. L. Spiderman Hypo – Tries to save woman from falling to her death. Dies from the web grabbing her. Not Liable. Did not leave her worse off than she would have been.
Medical Consent and Causation
i. Subjective Approach – Would P have consented to the procedure if he had known of the possible risks which ended up injuring him?
1. Used in cosmetic surgery cases, no alternatives (either get surgery or don’t)
2. No medically significant benififts 3. Zalazar – P went to D for plastic surgery. P suffered injuries from the surgery. Ct. of Appeals reversed for P, holding objective standard not applicable to cosmetic surgery. Subjective standard should be applied bc no expert evidence can show what a reasonable person would have done in the situation. ii. Objective approach – Would a reasonable person in P’s position have refused the surgery knowing of the risks before hand?
1.
2.
Used in regular medical cases where other alternatives were available
Expert testimony required to weigh the benefits and risks of procedure to determine what reasonable 3. person would decide. Bernard – D performed tooth extraction on P that led to pain and injury. P claimed D failed to warn him of risks of operation. Court ruled for P. Used objective standard, whether reasonable person would have consented if they knew the risks. If they could not have, failure to warn is proximate cause of P’s injury. Loss of Chance + Statistical Evidence (See 317-327 for more applications) i. Only willing to apply this when we have statistics  more likely than not is easily administrable rough justice ii. But for D’s act or omission, P would have had a better chance of survival.
iii. Given P did die, how likely is it that doctor caused the death?
1. Able to recover for damages caused directly by premature death, such as lost earnings and additional medical expenses. a. b. All or nothing denies recovery even when conduct causes loss Also creates pressure to manipulate rules 2.
3.
Kings approach to damages a. If P had 40% chance of surviving, but negligence causes him to die, can recover 40% of value of life had he survived.
Majority Rule – All or Nothing approach/More likely than not (Not Loss of Chance)
a. If but for D’s negligence P would have had 51% chance of living, can recover, if less than 50%, no 1. 2. Says traditional rule produces less error than loss of chance rule Don’t want to chill doctors from seeing such patients. Alternative Liability
a. Divisible Harm: Two Breaching Defendants, One Cause
i. 2 parties acting simultaneously negligent can both be found liable even though only one of the caused the harm when neither can cause who in fact caused the harm ii. Burden of Proof shifts to D’s iii. Summers v. Tice – Both D’s shot in P’s direction while hunting, P hit and injured. Both parties liable BC they cannot determine who actually caused the harm. Up to D’s to explain cause of injury. Court found each D liable for whole
b.
b. recovery. Ex. 40%  60% i. 20/60 = 33.3% < 50%, no negligence iv. Herskovits v. Group Health – P brought wrongful death suit against D for failing to make earlier diagnosis of husband’s lung cancer. Dr. testified that D reduced chance of surviving for 5 years from 39% to 25% (36% reduction). Held for P, rejected D’s argument that P must have had a 51% or better chance of surviving if hospital had not been negligent. Held reduction of chance of survival sufficient evidence to allow proximate cause issue to go to jury. v. Dumas v. Cooney – does not follow loss of chance rule. damage.
Single Indivisible Harm from 2 Different Parties: Concurrent Causes
i. Each of two events is a cause of the injury if either one would have been sufficient to cause the injury without the other

3.
c.
ii. Kingston v. Chicago – D negligently caused a fire, combined with another fire of unknown origin, destroying P’s property. D liable for all damages.
Market Share Liability
i. Where P can only identify the product by type, not brand, court may order D’s to pay % of P’s damages in proportion of their total market share for that product 1. 2. D can prove it was not their product and get out of it Some states apply regional market, others apply national market 3. 4. No joint/several liability, D only pays his market share D’s must make up substantial portion of the market share ii. Sindell v. Abbott – DES pill caused birth defects to children of women who took the pill. P’s mother knew what product it was, but didn’t know which company manufactured it, was impossible to find out.
d.
1. 2. All companies were liable for % of market they held. Hardly used besides in DES cases!
iii. Elements Needed:
1. All named D’s are potential tortfeasors 2. Harmful products identical, share same defective qualities 3. P unable to identify which D caused injury through no fault of her own 4. Substantially all the manufacturers that made the product during the relevant time are named as D’s.
Apportionment
i. If plaintiffs injury is indivisible, and was caused by more than one D, D’s can be held joint and several liability. ii. Joint and Several Liability – D can collect complete damages from either D 1. Common law – D has no right to seek reimbursement from other D’s 2. Ex – P injured. D1- 95% liable, D2 – 3% liable, D3 – 2% liable a. D1 insolvent, P able to collect entire award from D2 + D3. Proximate Causation/Legal Cause a. Factors (Directness (polemis), Foreseeability (Kinsman/Wagon), Same force and damages, Not exact developments leading to damage)
b. c.
iii. Contribution 1. If P recovers entire injury from D1, can sue other 2 D’s for reimbursement
iv. Several Liability
1. P can recover amount from each D to which they were responsible.
In General
i. Proximate cause determines whether someone who behaves negligently should be liable for improbable for far reaching consequences
Two Types Of Tests for Legal Cause i. Majority – Foreseeability (Forward looking approach)
1. D is only liable for consequences that were reasonably foreseeable at the time he acted. 2. Wagon Mound (Unforeseeable Harm) – D’s ship spilled oil, carried by tide to P’s wharf. P was told it was not flammable, welding causes P’s wharf to burn down. a. Court held D is not liable because injury was not reasonably foreseeable in that no one knew oil in b. water was flammable Note: In separate case where owner of boat destroyed sued D, court held that a reasonable man would have foreseen risk from spilling so much oil into the water that it might be flammable. L. 3. 4. Palsgraf v. Long Island RR (Unforeseen Plaintiff) – Man tries to board train, 2 employees help, man drops package which explodes, injuring P standing far away. Court found D not liable. a. Cardozo (Majority Approach) – D is liable to all P’s “within the reasonably foreseeable zone of danger. If P not in zone of danger, cant recover because he is an unforeseen plaintiff. (More of a b. duty argument) Andrews Dissent – Owe duty to all of society to not injure them. Kinsman Transit Co – Boat was hooked to D’s deadman. Ice caused the boat to become detached, floating downstream, hitting another boat, and then damning up causing flooding and serious damage. 5. a. D liable for negligently maintaining the deadman. Court held that damages that resulted from negligent deadman were of the same sort that was expectable, unforeseeability of the exact developments and magnitude will not limit liability. Doughty – Employee knocked cover into cauldron, leading to explosion. NL. Was not foreseeable that this would cause explosion.
ii. Backward looking approach (no longer good law) - Directness
1. D is liable for all consequences, no matter how far-fetched or unforeseeable, so long as they flowed directly from D’s act. 2. In Re Polemis – P chartered boat, negligent workers (D) dropped a board which caused the boat to explode. a. D liable because there was a direct link between the act of negligence and the injury, even though unforeseeable

4.
e. iii. Restatement § 448
1. The act of a third person committing an intentional tort or crime is a superseding cause of harm unless the actor at the time of his negligence knew or should have known that a third party might take advantage of the opportunity to commit such a tort or crime. (See Brauer).
Examples of Intentional Intervening Acts
i. Scott v. Shepard – D threw a lighted firework into a crowd. Landed next to a man who then threw it again, next man threw it again, landed next to P who was injured. Court held blame lies with the first thrower, was foreseeable that people would protect themselves by throwing the squib. ii. Roman Prince – D’s ship negligently struck barge P was on. She declined to originally board another boat. Half hour later when realizing boat would sink, tried to get on other boat, slipped and injured. D NL. Collision was not proximate cause of injury, P’s decision to wait was proximate cause. iii. Thompson – D not liable for rear-ending P. Clowns dancing at station were.
DEFENSES TO NEGLIGENCE CLAIMS 1. Contributory Negligence (Minority Approach)
a. Any P who is negligent, and whose negligence contributes proximately to his injury is barred rom recovery. No recovery if P is contributory negligent. i. P will not recover whether he is 1% or 99% at fault
2.
ii. P held to same standard of a “reasonable person under like circumstances” 1. Still must meet all elements of negligence iii. Only a defense to intentional or reckless torts if P’s negligence was gross
Comparative Negligence (Majority Approach)
a. Different types: i. Modified (Majority) 1. P can recover as long as not more liable than D (50% or less) ii. 49 Percent rule (Minority)
3.
3. Andrews Dissent Palsgraf (Minority Approach) – D is liable for anyone who gets injured from a negligent act, regardless if in the zone of danger or foreseeable. a. D has a duty to protect society from unnecessary danger, and is liable if his act substantially caused the injury.
iii. Remember the Egg Shell Plaintiff Rule
1. If D’s act causes P a foreseeable injury, any additional unforeseen consequences will be attributed to D as well. Intervening/Superseding Causes a. Factors (foreseeability, creates unique opportunity for X to happen, exact developments) b. Intervening Cause – A force which takes effect after D’s negligence, and which contributes to that negligence in producing P’s injury. c. Rule: If D should have foreseen the possibility that the intervening cause might occur, or if the kind of harm suffered by P was foreseeable, D will be the legal cause. i. Brauer v. NY Central Co. – D’s train negligently collided with P’s wagon. Afterwards, third party stole the contents of D’s wagon. D liable for all damages because it was foreseeable that goods would be stolen from an un-protected wagon. ii. Village v. Cook – D village maintained sidewalk 6 feet high with no railings. P walking on sidewalk bumped by d. another walker, fell off sidewalk and was injured. D liable, was foreseeable that this could happen. Superseding Cause – A cause that will alleviate D from liability i. Watson v. Bridge Company – P’s house demolished after D’s railroad care spilled oil from being negligently derailed. 3 rd party dropped match in gasoline that caused the explosion. Turned on whether 3 rd party intentionally set fire to the gas. 1. Court held D not liable. Could not have foreseen that someone would maliciously or wantonly have thrown match to create the explosion a. Would have been different if person accidentally dropped the match. ii. Alexander – P sued D for negligently failing to close a pit that had been dug on its street. P was injured when 3 rd party intentionally threw him into the pit. Court found D wasn’t liable for third party intentionally throwing P in the pit. 1. 2. P can recover as long as not more than 49% liable McIntyre v. Balentine – P was speeding and D was drunk driving. Court adopted 49% rule, found that both parties were equal in fault and that P could not recover. iii. Pure (Assume This on Exams if not Given) 1. P can recover whatever % of DAMAGES D is responsible, even if P was more liable than D was (ex – D 30% liable, P 70% liable, P recovers 30% of damages). iv. Comparative negligence does not allow recovery for a P who commits an intentional, willful or wanton act (reckless in some jurisdictions)
Assumption of Risk

a. b. c. Definition
i. P is said to have assumed the risk of a certain harm if she has voluntarily consented to take chance that risk will occur (can be implied or express consent)
Express Assumption of Risk i. P has explicitly agreed with D, in advance of any harm, that P will not hold D liable for certain types of harm ii. This is a complete defense in all jurisdictions
iii. Exceptions: Courts carefully look at agreements to determine if they are unconscionable contracts or agreements against public policy. 1. If D intentionally causes the harm, or brings it by acting grossly negligent 2. Look at Relationship/Type of Service
a.
b.
Public Policy? Look at Tunkl Factors
i. Does agreement represent a free choice on part of P? Or is he forced to accept clause by necessity of situation? 1. If latter, usually agreement is against public policy Tunkl v. Regents U of Cal – P admitted to UCLA med center, signed document releasing hospital from any and all liability for neg or wrongful acts or omissions of employees. P brought suit for injuries from malpractice. Trial court held D was not liable b/c of release. Cal supreme court reversed because this agreement involved “public interest” factors: i. Business of a type suitable for public regulation? ii. Is service of great importance to public? iii. Party offers to perform service for any member of the public who seeks it? iv. Did party offering service have advantage in bargaining strength against member seeking service? v. Didn’t offer extra costs to protect against negligence?
3.
vi. Is person or property of purchaser placed under control of seller, subject to risk of carelessness?
Did P Read The Contract?
a. Must appear that he read and assented to the terms b. Particular risks D is exculpated against must appear in the contract and be specific against what they are protected against.
Implied/Primary Assumption of Risk i. Doctrine that prevents P’s from recovering for injuries they suffer when they freely undertake dangerous activities
ii. Under primary assumption of risk, P is prevented from making out even a Prima Facie case of liability iii. Usually only assume risk this way when P can see risk was inherent before engaging in it, if risk is obscure or unobserved, or if accidents occur frequently, might not apply. 1. Murphy v. Steeplechase Amusement – P injured while riding the “Flopper” at D’s amusement park. Was watching people riding it before deciding to ride, saw people falling off. Court found the belt was not out of order, and that the risk was invited and foreseen, and that accepting to ride it accepted the dangers that were obviously present. iv. If P assumes certain risk, but D acts in a way that increases risks in a way that was unforeseen or not agreed to, P can recover 1. Woodall v. Wayne – D hired P to perform his human kite act. P told D of certain things necessary for act to work (driver needed to accelerate slowly to 30 MPH and then slow down), and that failing to do this would cause kite to crash. D assured P he had a professional driver who would follow this. During show, D’s driver went over 45 MPH causing kite to crash and P to be injured. Court ruled for P. If accident occurred from anything not attributable to D, would be different. However P surrendered his judgment upon assurance of safety or promise of protection, he does not assume the risk unless danger so obvious or extreme there can be no reasonable reliance on the assurance.
STRICT LIABILITY 1. Definition
a. Liability regardless of D’s intent and regardless of whether D was negligent because even if reasonable care was exercised, the risk still remains high b. Generally, activities where (1) the risk is great, (2) likelihood of risk creating injury is high, and (3) use of reasonable care doesn’t negate or diminish the risk
c. Purpose of Strict Liability
i. Encourages people to stop high risk activities or to make sure that the benefits far outweigh the high risks associated ii. Encourages those who continue high risk activities to take precautionary measures and try to develop safer ways of going about the activity iii. Forces the cheapest cost avoider (who can spread the costs) to absorb the cost of the abnormally high risk. (Do not want to force loss on P)

2. 3. d.
1. Internalization of costs allows price to reflect true cost of activity
Theories/First thoughts of strict liability
i. Rylands v. Fletcher (1968) – D built reservoir on his land which burst and damaged his neighbors mining shaft 1. A person who for their own purposes keeps on his land anything likely to do harm if it escapes, must keep it at his peril, and if he does not do so, is strictly liable for all the damage which is the natural consequence of 2. its escape D must stop at the natural use of their land ii. Lubin v. Iowa City – D city strictly liable for damages that occurred to P from intentionally leaving underground water pipes in place until they broke. Not reasonable or just to intentionally leave watermain underground beyond inspection and maintenance until a break occurs and escape liability.
1. First look at “inherently dangerous activity” Ultra-hazardous or Abnormally Dangerous Activities
a. Factors that an activity is abnormally dangerous: i. Restatement Second (520) Test for Strict Liability: 1. Risk of harm is great 2. 3. The harm that would ensue is great The activity is not one of common usage 4. 5. 6. The harm cannot be prevented by utmost care Activity is inappropriate for location where it took place Social value is not sufficient to offset the risk (Value < Danger)
7.
ii. Look For:
See comments on page 417
1. 2. Activity levels v. Care levels
a. Only SL will control activity levels
Reciprocal risks v. Non-reciprocal risks
a. Ex – driving reciprocal risks, no SL
3. Common
a. b. c. Is this something that is not unusual or rare? What does common mean? Trend towards moving to this understand of common Restatement 2d  whether its common is based on whether mass of man kind engages in activity
4.
d. Restatement 3d  uses the example of electrical wires (only may be one part of community involved in maintaining electrical wires, but they go to everyone’s house and benefits everyone  so its common because its not strange or unusual t the place and provides many benefits even if only one entity engages in it)
Social Value a.
b.
Is value < danger?
Losee v. Buchanan – NL when D’s steam boiler exploded causing damage to P’s land. Value of plant to society was great, was not a nuisance, common practice, risk of this was not great? iii. Indiana Harbor RR v. Am. Cyanide Co. – D loaded chemicals in railroad car and chemicals leaked onto P’s railroad switching line, causing evacuation of area. 1. D not strictly liable bc D’s reasonable care could have prevented accident 2. 3. 4. 5.
6.
a. Use due care negligence analysis instead Leak was no due to inherent properties of the chemical, chemical not dangerous enough to impose SL Claim should be brought under negligence Would be hard to re-route a train as opposed to a truck or car Activities were beneficial to society Whether we should use Due Care or address activity using SL which is re-routing  which is not feasibly (too expensive)  don’t need to re-route, the place isn’t inappropriate, and he is implicitly
b. 7.
saying that the social value outweighs the danger of shipping the harmful chemical  implicit
judgment here
“It takes two to tort”  Posner
Other Rationales
i. Loss Spreading  put the harm (loss) onto the defendant, the D is a larger entity typically on these cases with asymmetrical risks, they can better absorb these losses and can better spread them (by increasing prices of goods, etc.)  Some disagreement on this in courts
Respondeat Superior a. b. Form of vicarious liability – someone bearing the loss for the tort of another Theory that employer is liable for employees action when employee was:
i. On duty (not always, see Bushey); AND 1. Bushey v. United States – D employee returns to his work site (where he lived) while drunk, messed with drydock which caused damage. Held employer strictly liable because: a. Was within scope of his employment

b. At time, was foreseeable that these employees would get drunk and return to boat where they c. d. worked and lived Wasn’t personally motivated Employee had access to this area from employer
ii. Acting within the scope of his employment
1. Generally look at: a. Place/Time injury occurred (authorized?) 2. 3. b. c. d. e. Foreseeability Motive – don’t support personally motivated actions Specific kind of activity? Employer exercises control? f. Confers benefit on employer? Miller v. Reiman – D while at work, was granted permission to go to bank. On way back got into accident. D’s employer not liable because this was not within scope of employment. Went to bank for person reasons. Konradi v. United States – D was a mailman, was driving to work when he got into accident with P. Held D’s employer liable because they required that employees drive own cars on job, also required them to take the fastest route to work, not allowed to stop on way. Liable because: 4. 5. 6. a. b. c. d. Could have provided vehicles for employees, then employees could take public transporation to work Requiring them to get there as fast as possible made it in scope of employment Was within employers control Benefits employer Roth v. Bank of NJ – D not liable for employee who alerted friend that P left bank with large sum of cash, and person robs P. a. b. Employees action was in pursuit of own ends Not within scope of employment Forster – P delaying D bus driver by driving slowly. D got out of bus and hit P’s in the face. Held D’s employer liable because D was motivated to stay on schedule and benefit employer Reina – P was passenger on D’s bus, argued with D, when P got off bus flicked off driver who stopped bus, chased P and beat him. D’s employer not liable because actions were not to benefit employer, motivated by own anger.
iii. Fast Times @ Ridgemont High Hypothetical
1. Want to ask is this risk of the employee throwing the hat out the window characteristic of the enterprise? (Pirate themed food delivery) 2. 3. 4. More or less like bushey or crew member that causes accident in street? Or like Roth? Difference from bushey again – court has evidence there of sailors doing drunk stupid things but no evidence
c.
5. 6. in fast times case about these types of risks Motive here is worse than it was in bushey – here its contrary to the employer, at best personal motive, making it look like roth Question of control – employer could control manner of delivery – more control here instead of bushey 7. because employee was actually on duty here and employer could reduce risk if we put liability on employer If you could construe the hat throwing as employee being like screw you, then you can see this as a frolic like we had in miller where the employee has effectively taken himself out of duty
Why?
i. Fairness ii. Loss Spreading
d.
iii. Get at activity levels iv. Provides compensation for victims when employee is solvent
Exceptions:
i. Does not apply to independent contactors ii. Employers are not always liable for intentional torts committed by employees 1. Sometimes they are – Forester 2. Sometimes not – Reina a. Have to look at reasons for committing the tort b. Also look as to whether employer gave the employee an opportunity to commit the intentional tort
DAMAGES
1. Generally:
a. Compensatory Damages
i. Meant to make up for the damages actually suffered, such as lost wages, medical bills, and property damages
b. Nominal Damages
i. Recognition of a violation of a right, limited to intentional torts

2.
c. a. Punitive Damages
i. Damages that are for a particularly bad behavior that we want to deter.
Compensatory Damages Property Damages
i. Market Value 1. 2. Did not give increased value of horse because they were trained Sentimental value not taken into account ii. Loss of Use 1. Ex – loss of transportation and thinning of herd from taking of horses 2. 3. Have to take into account age/health of horse and whether the thinning might have occurred anyways Have to ask what losses were actually caused by D’s negligence/act
b.
4. Lost profits from loss of use? iii. No Mental anguish recovery for loss of property iv. United States v. Hatahley – P’s were members of a Navajo Tribe, D gov’t agents wrongfully took their horses and donkeys to sell to a factory. Trial court awarded total of $186,017, set rate of $395 for each horse and donkey, and each P was awarded $3500 for mental pain and suffering. 1. On appeal from US, court held damages should put P’s in position as if this never happened. Found P’s were entitled to fair market value for their horses and burros, plus the use of the animals during time between taking and when they could have reasonable replaced them. Found trial court should have viewed evidence that replacement animals were readily available, and costs of training. Trial court also should have looked to see if the unlawful taking was the proximate cause of the herd reductions. Found damages should be limited to time in which a prudent person would have replaced the horses and burros. Remanded a new trial for damages only, found the personal injury awards for pain and mental suffering should have been handled on an individual basis.
Personal Injury
i. Lost earnings/ Loss of Society/Consortium 1. Meant to make spouse whole, as close to normal as possible 2. Loss of time with person who died 3. Do not accept opportunity costs evaluations:
a.
Ex – someone who gives up a 100,000 salary to raise children, cannot ask for damages of that 4. 5. 6. 7. amount. Evidence based on persons character? Usually need expert testimony to proves $ amounts. Landers b. Ghosh (1986) – P was shot, evidence showed that P called D (Dr.) who said he would be there soon, but didn’t arrive for 3 hours. P died during surgery. P was 22, was unemployed, court calculated damages based on P working as a carpenter for life as $411,000 + 40-60 K for his services around the house. Jury awarded $400,000 for loss of financial support and loss of society to P’s wife. P appealed claiming money wasn’t enough, but judgment was affirmed based on seasonal nature of carpenter occupation. Pescatore v. Pan Am Airways (1995) – P was 33 when he died in the flight, had an MBA and was a VP and BP. Experts made claims as to his chance of continuing to move up at BP, as well as his loving character towards fam. Wife was awarded $9 Million in lost earning and 5 Million for loss of society. (He was making ~200 K a year at time of death).
a. Under Pescatore, you take things the way they are at the time person died and assume they will continue in same nature
Haddigan v. Harkins (1970)– P sued for wife dying in car accident. Jury awarded $65,000. P proved 8. 9. damages by showing the hours wife spent each week doing various duties, and valued services based on these hours. Benwell – Didn’t mitigate damages b/c wife had remarried ii. What if the person who dies is a child? 1. Louisville Ry v. Creighton (1899) – boy died when 4. Jury awarded 10,500. D appealed claiming damages excessive. Court reversed for new trial, holding should look at earning capacity at time, and that this was excessive.
a. Rule For Children: Get what you can prove, what are they contributing or what can you prove they will contribute?
iii. Would a jury give more to a child with a higher IQ? Class Hypothetical 1.
Don’t use IQ
a. b. Unfair  too much Speculation on IQ and future earnings Systemic fairness concern (poor kids don’t have the same opportunities to become smarter as rich kids, could overcompensate rich families)  equality
2.
Use IQ
a. b. If there is data or projections reasonably available maybe its fair Better than the alternative? (No recovery or lower recovery based on generic determination)

iv. Insurance Coverage? 1. First Party Insurance – protects holder against losses from a particular event, like medical expenses from automobile accident 2. 3. Third Party Insurance – protects holder against threat of paying damages to another harmed by insured’s conduct Liability Policies – limited to accidents, excluding coverage for intentional torts, do not cover punitive damages
a. b. c.
Insurance company usually makes decision about when to settle Has obligation to do so in good faith If company places own interest in front of policy holder, can bring suit for bad faith. v. Pain and Suffering and Hedonic Damages 1.
Hedonic Damages – “Lack of the good stuff” a.
Olin Corp v. Smith (1999) – gun discharged in P’s lap as a result defective bullet, and P had to amputate his leg. Jury awarded $6.35 million, most of which for “physical pain, mental anguish, disfigurement, and physical disability”. P was 16, took into account prosthetics he would need in future, pain from fake leg, phantom pains.
b.
Williams v. United States (1990) – P was an inmate, while in prison contracted bacterial infection, medical officer misdiagnosed and condition worsened turning into gangrene, but they did not tell hospital it was this so it continued to be mistreated, and eventually had to be amputated. P was 48 when amputation occurred. Was awarded $500,000. 2. 3. c. Analysis Between the Two: Maybe pain and suffering in Olin case is worse (you can get pain and suffering not just for your physical pain and suffering but for your emotional distress as well and maybe the pain and suffering comes from lost leg when youre younger is actually worse than it is in older life)
Assessable (loss of smell) v. Unassessable (loss of violin enjoyment)
a.
Daugherty – P’s injuries disfigured head and face, requiring surgery and head cast, also lost sense of taste and smell. Trial court awarded $5,000. Court ordered for new trial holding award was “so inadequate and unjust”.
b.
Hogan v. Sante Fe Trans. Co. – loss of enjoyment from playing violin too speculative to form basis for awarding damages.
Pre-Fright Impact? a.
Beynon – D failed to put up sign that traffic was stopped up ahead. P noticed too late, slammed 4. 5. 6. 7. 8.
b.
brakes but collided with truck and died. On top of other damages, was awarded 1 Million (reduced to $350 K) for “pre-impact fright, evidenced by 71 feet of skidmarks leading to crash.
Only get pre impact fright award if P became conscious of fact of imminent danger and it closed with his death. Humiliation
a.
Restatement § 905 – “A feeling of degradation or inferiority or a feeling that other people will
regard him with aversion or dislike. This state of mind may result from a physical harm, an imprisonment, a defamatory statement, the disruption of the marital relation, or even deliberate trespass of land or destruction of chattels”
i. Recovery based on length of time which pain or other harm has been or probably will be experienced, and intensity of the distress are all factors considered assessing damages.
b.
Also consider sex, age, condition of life etc. ii. Will not consider wholly abnormal or unreasonable disturbances iii. Ex – person fearing death from rabies even though there is proof that the dog who bit P was healthy Douglass v. Hustler – P posed nude and signed release for photos to be in playboy. Years later, Hustler published the pictures. Jury awarded $500,000 (300,000 for emotional distress). Court found this amount was absurd and excessive, that she only suffered mild emotional distress and no severe or permanent psych damage.
c.
Weller v. ABC - $1 Million awarded to P when D ran reports that P might have stolen (the silver candelabra that he sold to museum for $65,000), also claiming the museum overpaid for it. P suffered “worry, loss of sleep, loss of appetite, depression” which settled into long term depression. Was humiliated with family and friends.
Courts skeptical or per diem arguments a.
Can make per diem arguments, but cant suggest an actual sum
Golden rule a.
Attorney can’t ask jury to put a value on certain damage from their standpoint. Ex - “how much would you value your leg?” Injury Funds – See page 550 Fixed payment schedules? – See page 551

PRODUCTS LIABILITY
1. A claim for injuries caused by products (must be a legit seller, not a causal seller)
a. Restatement (2 nd ) § 402a
i. One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate consumer/property if: 1. The seller is engaged in business of selling such a product, and 2. It is expected to and does reach the user or consumer without substantial change in the condition in which it is sold
b. c.
ii. The rule in (i) applies although: 1. The seller has exercised all possible care in the preparation and sale of his product, and 2. The user or consumer has not bought to the product from or entered into any contractual relation with the seller.
Restatement (3 rd ) § 1
i. One engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect
§ 2 Categories of Product Defect
i. A product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warning. A product 1. 2. Contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product Is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by adoption of a reasonable alternative design by the seller or distributor, or a predecessor in the commercial chain of distribution, and the omission of an alternative design renders the product not
2. 3.
3. reasonably safe Is defective because of inadequate instruction or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor or predecessor, and the omission of instructions or warnings renders a product not reasonably safe
Main issue in these cases is CAUSATION a.
Was the problem introduced after it was in the consumer’s possession? Because then its no longer caused by the manufacturer.
b.
This is fact question that goes to the jury.
Generally look for: a. Was the person a seller/manufacturer or retailer? i. Not a casual seller (yard sale) b. Was there a defect in the product?
i. Manufacturing Defect – Strict Liability 1. 2. 3. A defect that occurs when something went wrong during the manufacturing process Liability can fall on manufacturer, distributor or seller Proof of specific defect is not required when the injury:
4.
a. Is the kind that ordinarily occurs because of a defect, AND b. Some portion of the injury can be traced back to the defect Escola v. Coca Cola – P was injured when a bottle of Coca Cola broke in her hand, because the bottle contained too much pressure. Manufacturer of the bottles tested them, court inferred that the error must have occurred when coca cola filled and distributed them. Court found that this error would not have occurred if due care were used. (Applied Res Ipsa to assume that D was negligent in some way)
a. Taylor Concurring (MAJORITY RULE) – believed this should be a strict liability case, not negligence. Company putting product on market knowing it is not inspected should be absolutely liable for harm caused. Deters companies from putting defective products on market. Fairer and easier to administer.
i. Best way to deter is to hold strict liability on manufacturer ii. Loss spreading  manufacturers have the ability to spread cost by increasing prices, etc. iii. Manufacturers benefit off of the trust that consumers get from their brand and safety so they should be held to high standard iv. Res Ipsa is stupid here ii. Design Defects – Negligence 1. 2. Manufactured according to the design, however the design itself was defective and dangerous Was it reasonably foreseeable that defective design would cause injury? 3. 4. Look to hand risk utility comparison Were other safer and more reasonable alternatives available? iii. Failure to Warn – Negligence 1. Product failed to warn of certain risks of using product

c.
2. 3. a.
When a reasonable, safer design could have been adopted that would have reduced or eliminated the residuum of risk that remains even after a warning is provided, a seller can still be liable even
if they warned Was the risk commonly known? Would knowing of risk have changed behavior? a. Liriano v. Hobart Corp. – P was injured when using meat grinder whose safety guard had been removed. Company putting a safety guard shows risk of machine. Should have known that people would take the guard off. People using it may not know that guard is available, and that it would be safer with one. Should put a warning on it that product is more dangerous without the guard. i. Class Analysis 1. Manufacturers changed the default for standard of risk 2. 3. Once it adds the guard, introduces the risk of removing the guard Increase of P and L 4. Folks might not be so aware of that risk that guard is available and that the use of the grinder would be must safer with the guard 5. Additional risk and so you need to warn of it ii. Dissent: wait isn’t this going to set bad incentives for manufacturers of grinders if they can be held liable for bad incentive to warn for putting on guards, they wont put it on on purpose Look at the likelihood and the seriousness of potential harm 4. 5. a. Brown v. McDonalds Corp – P ate vegetarian sandwich from McDonalds, had a severe allergic reaction because there was seaweed in the sandwich, claimed McD’s failed to warn of ingredient. Sent the case to the jury, to decide whether McD’s had an obligation to warn in view of her evidence and severity of reaction, and whether the steps the restaurant took to notify was adequate (flyer person could ask for to see ingredients of product) Can bring in subjective evidence to show P would not have followed warning a. b. People are given a heeding presumption, which is they would have followed the warning if it were posted. This is easy to get by, using subjective evidence, gets issue to the jury. American Tobacco v. Grinnell – P started smoking in 1952, warnings did not appear until 1966, P died from lung cancer. Claimed product failed to warn the were dangerous and that they were addictive. D claimed it was common knowledge that they were dangerous and addictive. Court looked at marketing defect law. Found that in 1952, while the dangerous quality of cigs may have been common knowledge, addictive quality was not. P claimed he never would have started smoking if he knew they were addictive. Sent issue to jury to decide whether failure to warn made product defective. i. Hand Analysis? 1. Addictiveness increases P, justifies greater B
Causation
i. Did the defect cause the injury? Or did P’s actions or use of product cause the injury? ii. But For Causation? 1. Justifiable Reliance – could P have taken other actions had he not relied on the product? 2. 1. Factual Misrepresentation – had the product done what it said, would P not have been injured? a. See pepper spray case b. Should not rely on puffery iii. Proximate Causation Was it foreseeable that the person would be injured in this way? Or that using product in certain way would lead to such an injury? iv. Causation in Failure to Warn 1. Would adequate warning have changed P’s activity or use 2. Shifts burden of proof to D, gives P the presumption that if there was a warning they would have heeded it. a. D allowed to give evidence that P wouldn’t have heeded warning b. c. P then has to offer counter proof Graves v. Church & Dwight – P’s stomach ruptured from drinking Arm & Hammer and Water. Court found product was defective for not warning, but that P would not have heeded the warning, based on the fact that P smoked cigarettes despite their warning of possible risk. (Subjective evidence allowed court to rebut heeding presumption) 3. Have to look at the type of harm that could result from the failure to warn. Greater probability it will effect someone, or greater injury that may possible result will