Development of Liability Based Upon Fault
1. Purposes of Tort Law a. to provide a peaceful means for compensating parties who might otherwise
“take the law into their own hands” b. to deter wrongful conduct c. to encourage socially responsible behavior d. to restore injured parties to their original condition to the extent possible
2. Three Categories a. Intentional—purposeful action b. Negligence—actor knew or should have known risk c. Strict Liability—action is so dangerous that actor is responsible even if no intent or negligence
3. Insurance a. Backbone of the tort system b. without insurance, public interest suffers (services stop being provided)
4. Four Basics of a Tort a. Liability b. Damages c. Recovery (Insurance/Compensation without insurance)
Intentional Torts—Require Intent, Proximate Cause, and Damages
1. Intent—must intend harm or intend action likely to cause harm a. liability for intent to cause harm or knowledge that an action is likely to injure b. children can be liable as adults if they can form the proper intent ( Garratt ) c. no liability when resulting injury is unforeseeable ( Spivey ) d. liable for action through mistaken intent ( Ranson , shot dog instead of wolf) e. mentally ill liable if capable of intent ( McGuire) f. liability for transferred intent ( Talmage )
2. Battery a. Elements
1. intent to cause harmful or offensive contact and
2. the resulting harm of that contact b. no liability if touching is not done in a rude, insolent, offensive, or angry manner (certain amount of touching in “crowded world”, Wallace ) c. “extension” rule; touching extends to something the person is holding or wearing—“dignitary tort” ( Fisher )
3. Assault a. Elements
1. apprehension or fear that battery will occur and
2. present ability to effectuate that threat (no actual contact necessary) b. liable for assault when well-founded fear threat could be carried out ( Western
Union Telegraph Co.
)
4. False Imprisonment a. Elements
1. restraining someone against their will
2. within a physical boundary (Thailand too big an area for imprisonment)
3. with no reasonable means of escape

b. “consciousness of confinement” required—later recollection not necessary
( Parvi ) c. must be an actual barrier to freedom (locked room, impassable sea, etc.,
Whittaker ) d. cannot be a legal justification for restraint for tort liability to exist e. false arrest ( Enright )
1. no action will lie if person actually committed a crime
2. liability if arrest is under false pretenses (i.e. for non-criminal activity)
3. shop owners have a right to detain if there is a reasonable belief that person shoplifted, otherwise they would be unable to stop shoplifters
5. Intentional Infliction of Emotional Distress a. Elements
1. intentional or reckless conduct
2. that is extreme and outrageous (must “shock the conscience”)
3. with a causal connection between the conduct and the distress
4. distress must be severe, usually manifested physically ( Harris , minor harassment at work insufficient) b. high-burden tort for plaintiff because easily faked and difficult to prove c. threats can constitute an action for this tort ( State Rubbish Collectors ) d. insults are insufficient (normal part of life, Slocum ), but common carriers have a higher duty not to insult e. distress must be intended or known to be likely to occur ( Taylor , no liability for witness to murder because killer not aware of witness presence)
6. Trespass to Land a. Elements
1. unauthorized entry
2. onto property of another b. permission can be limited to certain area or purpose on land c. no damage necessary to constitute trespass, just violation of exclusive right to property ( Dougherty ) d. trespass vs. nuisance ( Bradley , particle dispersal is nuisance)
1. trespass—interferes with owner’s exclusive right to property (must be tangible)
2. nuisance—interferes with owner’s right to enjoyment of property (need not be tangible) e. ownership of land extends a reasonable distance above and below property f. continuing presence—permission can expire and presence becomes trespass g. nominal damages even when no harm done to protect landowner rights
7. Trespass to Chattels a. Elements
1. use or intentionally intermeddle with a chattel
2. in possession of another
3. or take property of another to deprive them of possession
4. without permission b. chattel does not have to be tangible physical property c. must be substantial deprivation of use of property or actual harm to chattel

d. when committing trespass to chattels one cannot recover for injury
8. Conversion a. Nature of the Tort—Elements
1. exclusive dominion over chattel
2. which so seriously interferes with the right of another to control it that the actor may be required to pay the other the full value of the chattel b. Effect of Good Faith
1. good faith or mistake does not prevent liability for conversion
2. liability for purchase of stolen goods (no title) but not for purchase of goods obtained fraudulently (where purchaser receives title) c. Necessity of Demand; Return of Chattel
1. some states hold that an innocent converter is not liable unless they refuse to return the chattel upon demand
2. if goods are returned, liability is possible but return reduces damages d. Damages
1. usually measured by market value
2. if Δ’s conduct is outrageous plaintiff can recover for emotional harm
3. punitive damages only when conversion was malicious e. What May Be Converted
1. moveable goods
2. intangibles such as stock f. Who May Maintain the Action
1. one in possession of a chattel
2. one in temporary possession of a chattel
3. one in unlawful possession of a chattel if there is some colorable claim of right to the chattel
Defenses to Intentional Torts (Privileges)
1. Consent a. need not be verbal—implied consent OK (
O’Brien v. Cunard
) b. action that extends beyond given permission is not consented to ( Hackbart v.
Cincinnati Bengals ) c. medical attention requires consent unless:
1. patient is unconscious or unfit to give consent immediate medical attention is necessary, or
2. in the course of an operation there is discovered a condition requiring immediate attention ( Mohr v. Williams
—operation on other ear) d. medical consent must be “informed”—must disclose all relevant information, including risks and alternatives ( DeMay v. Roberts
—birth attendant) e. consent under fraud or duress is not valid
2. Self-Defense a. anyone can use force to defend against a threat of unlawful force b. force must be only proportional to force threatened; retaliation not allowed c. only reasonable belief in threatened force required (not actual threat) d. retreat is not required unless the self-defense will require deadly force e. in one’s own home, generally no retreat is required even for deadly force
3. Defense of Others

a. usually some relationship to 3rd party is required b. some jurisdictions accept reasonable mistake, others still hold liability
4. Defense of Property a. deadly force not allowed to defend property ( Katko v. Briney
—also holds that if force is not allowed in presence, it is not allowed in absence) b. a few states will allow it if warning posted (“beware of dog”) c. if house is occupied, there is a threat to life and deadly force may be allowed
5. Recovery of Property a. a rightful owner has the privilege to take property back by force if:
1. the force used is reasonable (usually detention—very narrowly defined)
2. there is no breach of the peace, and
3. the pursuit is “fresh” b. “shopkeeper’s privilege” (to falsely imprison)
1. store owner may detain if a. he reasonably believes theft occurred and b. the investigation is reasonable
2. privilege extends to outside store
3. allows for detention only—cannot arrest or use force
6. Necessity a. public policy—commission of a tort to prevent a greater evil—no recovery allowable because it would hinder gov’t officials from making good choices (fire marshal case—burned down house to stop fire spreading) b. private property—still liable for damages even though morally correct choice
(moored ship to dock which was damaged in storm)
7. Authority of Law a. otherwise tortious actions may be authorized by law b. must be reasonable c. must have probable cause
8. Discipline a. allowed by parents (or those with temporary responsibility for them) for kids b. amount of force for stand-ins may be less than for parents c. corporal punishment does not violate 8th Amendment d. but some instances do support tort liability between parent and child e. societal pressures are removing this privilege from favor
9. Justification a. catch-all category—similar to necessity b. reasonable restraint/imprisonment allowed to prevent injury to others or damage to property ( Sindle , NYC school bus case)
Negligence
1. Elements of Cause of Action a. Duty to use reasonable care (standard of conduct) b. Breach—failure to conform to required standard c. Proximate Cause—must be a reasonably close causal connection between breach and injury d. Injury—actual damage must occur
2. A Negligence Formula

a. out of foreseeability arises duty b. Lubitz v. Wells
—golf club left out was not so “obviously and intrinsically” dangerous that it was negligent to leave it out c. Blyth v. Birmingham Waterworks Co.
—harsh winter that froze water mains was a circumstance outside the scope of what was reasonable d. Gulf Refining Co. v. Williams —damage was observed to defective oil drum cap—employee had duty of care (dangerous and foreseeable) e. “Attractive Nuisance Doctrine”—extra care owed to dangerous circumstances that would be attractive to children, even on private property and especially when burden is minimal compared to possible damage f. as danger increases, duty increases g. harm that is known is foreseeable
3. Standard of Care a. The Reasonable and Prudent Person
1. duty does not vary with defendant’s intelligence (
Vaughan v. Menlove , hayrick case)
2. users of everyday items (i.e. cars) have a duty to keep them in reasonably good condition
3. departure from industry standard not necessarily negligence, but it can be evidence weighed by jury (shattered glass shower door case)
4. “ordinary person” standard circumstantial—changes in an unusual situation to “what would reasonable person in this situation do?”
“emergency” doctrine, reasonable person w/blindness
5. a child can be held to an adult’s standard of care if engaged in adult activities; otherwise held to standard of a child
6. mentally ill person almost never an excuse
Crazy Wisconsin Rule: cannot be liable if their illness: a. affects the person’s understanding of their duty b. affects the ability to act prudently c. the person has no notice or forewarning of incapacitation b. The Professional
1. professions held to a higher standard of care a. health care b. legal c. builders/engineers d. financial e. teaching (sometimes) f. clergy (sometimes) g. common carriers (i.e. pilots)
2. establishment of the professional standard requires a. expert testimony OR b. conduct so egregious that a layperson would recognize it as malpractice (i.e. scissors in body in X-ray)
3. standard is for one who has the knowledge, training, and skill (ability, competence) of an ordinary member of the profession in good standing
4. reasonable mistake insufficient to establish malpractice

5. some jurisdictions apply locality rule a. standard of care is what is available in the area (limits liability of rural doctors without access to technology and ensures continued rural care) b. now most jurisdictions apply “similar community in similar circumstances” but Iowa still applies locality rule
6. consent a. no consent = battery b. no informed consent = malpractice c. clients need to be able to decide not only what to do but whether d. medical attention requires consent unless:
1. patient is unconscious or unfit to give consent immediate medical attention is necessary, or
2. in the course of an operation there is discovered a condition requiring immediate attention ( Mohr v.
Williams —operation on other ear not justified w/out consent because not immediately necessary)
7. professionals must disclose information that would affect their practice
(i.e. financial gains for certain practices)—standard is what a reasonable client would want to know, not what a reasonable doc would disclose c. Aggravated Negligence
1. higher standard of care
2. encompasses conduct with known risks that have high consequences
3. requires willful/wanton misconduct
4. automobile guest statutes—limits driver’s liability to only aggravated negligence, not regular negligence
4. Rules of Law a. determination of standard of care owed in a particular situation by judge b. judges are reluctant to do so; usually a question for the jury—only do so if no issue of fact
5. Violation of Statute a. if statute establishing standard is breached, there is negligence per se
1. jury must determine if plaintiff is protected under statute
2. jury must determine if harm was harm that statute intended to prevent b. jury need not decide standard of care because statute already has c. rebuttable with excuse in 6 states (i.e. walking on road when sidewalk is icy)
6. Proof of Negligence (Breach of Duty that proximately caused harm) a. generally proved with strong direct evidence
1. physical evidence
2. witness testimony b. Court and Jury: Circumstantial Evidence
1. banana cases—appearance of bananas told if they had been there long enough that they should have been picked up (burden of proof still on plaintiff, but object of proof can be lack of inspection in reasonable time)
2. an inherently dangerous situation (pizza served on terrazzo floor) provides foreseeability—reasonable time allowed to clean up not required

c. Res Ipsa Loquitur
1. “the thing speaks for itself”
2. elements a. defendant must have exclusive control over instrumentality b. no explanation possible other than negligence
3. this is a last resort for a plaintiff
4. enables (does not compel) jury to infer negligence from fact scenario
5. applicable even as to multiple defendants if no other explanation
6. Larson v. St. Francis Hotel , chair thrown from window; hotel not liable
Causation in Fact
1. Sine Qua Non (“Indispensable Condition”) a. if harm would have occurred without negligence, negligence is not cause b. causation in fact (“but for”) and proximate cause required for recovery
2. Proof of Causation a. if negligence greatly multiplied the possibility of injury, there is causation b. there must be evidence that negligence caused harm c. possibility of causation insufficient; must be reasonably likely d. liability for “lost chance of survival”—not full recovery but partial e. standard for expert witness testimony
1. research must have been done before litigation began
2. research must be published/peer reviewed
3. Concurrent Causes a. when two + parties cause harm and both are negligent b. made far easier with comparative fault doctrine c. fire case—if 1st fire, caused by defendant, was a “substantial factor” in causing harm of total fire, defendant is liable; question for the jury
4. Problems in Determining Which Party Caused the Harm a. when two possible defendants might have caused the harm, if each breached a duty and there was proximate cause and injury, both can be held liable if fault cannot be determined b. burden of proof shifts to defendants to prove they were not cause (if possible) c. causation based on probability—minority rule
1. Sindell v. Abbot Labs
2. defects from drug, cannot determine which manufacturer actually made specific drug taken
3. liability allowed based on percentage of market share
Proximate (Legal) Cause
1. Unforeseeable Consequences a. foreseeability is gauged from perspective of defendant b. proximity can be in time or distance, if too far removed, no liability c. foreseeability of exact consequence unnecessary, need only foresee injury or damage of some kind ( Polemis , drops plank, causes fire) d. BUT defendant must “take plaintiff as he finds him” even if damage is unforeseeable ( Bartolone , car crash causes injury that later triggers psychosis) e. Palsgraf v. Long Island R.R. Co.

1. train car employee helped a man onto train, but passenger’s package fell—it contained fireworks and exploded, throwing down scales, which fell and struck plaintiff
2. no liability because consequence was completely unforeseeable f. fires—house adjacent is foreseeable but no further
2. Intervening Causes a. when foreseeable, do not interfere with causal chain b. when unforeseeable, actions supersede and break causal chain ( Yun , man runs across highway to get tire, no liability for Ford because action unforeseeable) c. criminal acts do not break causal chain if danger is foreseeable ( Watson , man lights match in gas spill) d. suicide—if rational act, it is a superseding cause; if “irresistible impulse” it could be more easily causally linked to accident and liability would exist ( Fuller ) e. “Rescuer Doctrine”
1. allows a rescuer to sue the party which caused the danger requiring the rescue in the first place
2. applies to product liability issues if they cause a situation in which one would be likely to rescue another
3. plaintiff must still show proximate cause, not just cause of original danger
4. elements of rescue situation a. defendant negligent to person being rescued (caused situation) b. peril is imminent c. reasonable and prudent person would conclude peril existed d. rescuer acted reasonably during rescue
3. Public Policy a. social host liability— Kelly v. Gwinnell , hosts liable for guest driving home drunk because they were aware of/assisted intoxication; accident was foreseeable b. Enright v. Eli Lilly
—public policy removes legal barriers to DES remedy, but multi-generational liability not allowed—line must be drawn somewhere
4. Shifting Responsibility a. extremely unusual b. involves conduct of third party which, through action or inaction, relieves the defendant of responsibility (kid brings home dynamite caps, parents see them but fail to get rid of them effectively, responsibility has shifted to parents)
Joint Tortfeasors
1. Liability and Joinder of Defendants a. Joint and Several Liability—multiple defendants
1. plaintiff can recover all damages from any negligent defendant if one defendant is judgment-proof or insolvent
2. burden of damages should lie with a guilty party rather than innocent
3. applies when: a. defendants act in concert b. defendants fail to perform a common duty c. defendants act independently but cause an indivisible injury b. Contributory Negligence—if plaintiff has any fault, they cannot recover

c. Comparative Negligence—each party assigned percentage of fault, including π
1. some states apply J&S even with comparative negligence
2. some states have abandoned J&S with comparative fault
3. some states only apply J&S if Δ is more than 50% responsible
2. Satisfaction and Release a. plaintiffs cannot get more than one satisfaction b. full satisfaction discharges any future defendants c. in a covenant not to sue one Δ, right to sue others must be expressly reserved d. partial satisfaction allows suit against other defendants e. “Mary Carter” agreements—settlement with some Δs, who then help bring suit against remaining Δs (supposedly to pressure settlement—now void)
3. Contribution and Indemnity a. Contribution
1. contribution available even as to defendants not included in lawsuit
(defendants can bring in other parties) if D1 is paying more than fair share
2. contribution used to be 50/50, now assigned in comparative fault
3. if a defendant settles with the plaintiff, that defendant cannot be brought in (encourages settlement as good public policy) b. Indemnity
1. when a non-negligent party is brought into the lawsuit due to its relationship with the tortfeasor, they are allowed to recover damages from negligent party
2. theoretically should be common in vicarious liability but rarely used because insurance usually covers damages and it lowers employee morale
3. indemnification can apply to future earnings c. Contribution and Indemnity are mutually exclusive!
4. Apportionment of Damages a. comparative fault is main way to apportion damages
1. each party assigned % fault
2. if subsequent injuries from intervening cause, part of the fault may be apportioned to original injury b. if the jury decides the injury is indivisible, joint and several liability is used instead of comparative fault c. existing circumstances affect future damages (terminal cancer patient eligible for lower damages than healthy person
Owners and Occupiers of Land
1. Outside the Premises a. no duty to those outside premises for conditions arising in the state of nature b. EXCEPT for trees—reasonable care must be exercised (i.e. inspection) c. for conditions NOT arising in nature
1. there is liability for injury that is reasonably foreseeable (foul balls)
2. prevention required is reasonable and not overly burdensome
2. On the Premises a. Trespassers
1. no duty owed except to children under “attractive nuisance” doctrine
2. trespassers assume the risk—no duty required for unlawful activity

3. duty does arise at the moment of discovery of trespasser
4. duty does exist when trespass is foreseeable (“well-worn path” rule) b. Licensees (social guest—there for their own benefit)
1. duty to warn of known dangers
2. no duty if danger is unforeseeable (mentally ill person attacks guest, no violent episodes for over 10 years, no duty to warn) c. Invitees (those who further landowner’s benefit, i.e. customers)
1. duty to keep premises safe for them
2. No purchase necessary!
3. if they enter part of the premises not for customer use: a. with consent, they become a licensee b. without consent, they become a trespasser
4. duty not necessarily discharged by posting signs warning of danger d. Persons Outside the Established Categories
1. Children—“attractive nuisance” doctrine—reasonable care required
2. Persons Privileged to Enter Irrespective of Landowner’s Consent a. usually invitee status because there for landowner’s benefit b. govt. officials, public utility workers, etc. c. firemen and policemen are usually licensees e. Rejection of Merging of Categories
1. California rule only
3. Lessor and Lessee a. landlord is liable when:
2. eliminates categories and applies standard of reasonable care
3. all other states have retained use of categories
1. when the lessor is aware of danger unknown to lessee (duty to warn)
2. when a condition is dangerous to those outside premises (lessor should not be able to escape duty by leasing)
3. when premises is leased for admission of public (goodwill—landlord should make sure premises is safe)
4. when land remains in lessor’s control but lessee can use (common area)
5. where lessor contracts to keep premises in good repair (implied warranty to maintain code standards)
6. negligence by lessor in making repairs b. Pagelsdorf v. Safeco Ins. Co.
—Crazy Wisconsin abolishes rule of landlord non-liability and enacts standard of reasonable care for public policy reasons c. landlord responsible for taking reasonable measures to prevent criminal acts of
3rd parties when risk is foreseeable
Damages
1. for the purposes of compensation and accountability
2. money is the law’s only tool, though it rarely completely restores victim
3. types of damages a. nominal—small amount for vindication b. compensatory—to restore victim
1. pecuniary—calculable
2. non-economic

c. punitive—to punish tortfeasor
4. if judge deems jury award excessive, he can reduce by remittitur a. in most states evidence of damages in record is used to reduce/eliminate b. generally award cannot be judicially raised (additur) c. does award “shock the conscience”?
5. juries naturally reluctant to award damages—usually much expert testimony required
6. awards must reflect evidence, not passion or prejudice (aligned with expert testimony)
7. Personal Injuries— Anderson v. Sears
—little girl burned by house fire from heater a. categories
1. past physical and mental pain
2. future physical and mental pain
3. past and future medical expenses
4. loss of earning capacity (and loss of past wages)
5. permanent disability
6. loss of consortium
7. past and future special care expenses
8. loss of enjoyment of life
9. disfigurement b. future damages must be mitigated insofar as possible and are calculated according to mortality tables c. awards for compensatory damages are not taxable d. collateral source rule
1. plaintiffs may enter all damages incurred even if insurance paid all/part
(insurance can recapture claimant payout)
2. defendant should not be able to escape liability
3. evidence of 3rd-party payment inadmissible EXCEPT: a. to rebut plaintiff testimony of necessity to return to work prematurely or forego additional medical care b. to show that plaintiff had attributed condition to some other cause like sickness c. to impeach plaintiff’s testimony of payment of expenses d. to show plaintiff had actually continued to work
4. usually costs negotiated or insurance paid for by plaintiff anyway e. avoidable consequences rule
1. refusal to accept reasonable medical care precludes damages
2. factors considered in defining reasonable medical care: a. risk b. probability of success c. pain involved d. money/effort required
3. mitigation of damages is required f. future damages are reduced to present value (expert economist to account for inflation, etc.) g. if a new trial is required due to excessive/insufficient award, it generally only occurs if one party refuses amount assigned (additur possibly unconstitutional) h. legislatures often define amounts recoverable

i. contingent fee
1. used by torts plaintiff’s attorneys
2. usually about 1/3
3. allows plaintiffs without money access to excellent legal services
4. motivates counsel
8. Physical Harm to Property a. usually cars b. damages equal to cost of repair or market value where wrong occurred and when plaintiff learns of loss c. 1st remedy is plaintiff’s insurance, which acquires subrogation right over defendant (to recover damages paid out to plaintiff) d. some compensation is available for personal value (i.e. heirloom)
9. Punitive Damages a. rare—only when defendant’s conduct is willful or wanton b. usually get appealed c. not used to compensate victim but to punish wrongdoer so not unconstitutional to divert to state account rather than award to plaintiff d. Iowa Rule
1. conduct must be willful and wanton
2. if directed specifically at plaintiff, plaintiff gets 100%
3. if not, plaintiff receives 0-25% of damages e. new tort of insurance bad faith—when insurance company doesn’t defend policyholder properly in a suit (with good faith) f. State Farm v. Campbell
1. U.S. Supreme Court ruled that generally punitive damages need to be within a single-digit multiplier of compensatory damages ($145 million punitive award ruled excessive compared to $2.6mil compensatory)
2. cannot look outside damage done in instant case to find damages
3. punitive damages cannot be a substitute for criminal penalties g. evidence of defendant’s wealth admissible to determine effect of punishment h. punitive damages are subject to federal income tax
Wrongful Death and Survival
1. Wrongful Death a. estate of one killed by a tortious act can bring a wrongful death suit b. damages are calculated according to what decedent would have “accumulated” had they lived (not what they earned) c. some jurisdictions allow survivors/relatives to bring a wrongful death action d. offspring
1. some states allow parents to bring wrongful death for a child
2. some states allow parents to bring wrongful death only for a MINOR e. can include action for loss of consortium (companionship, love, etc.)
2. Survival a. claim brought on behalf of decedent for an action that survives their death b. i.e. pain and suffering during death
Defenses
1. Plaintiff’s Conduct

a. Contributory Negligence
1. plaintiff cannot recover if responsible for ANY part, even 1%
2. only used in 4 states
3. does not apply to intentional torts or where defendant is recklessly negligent (willful/wanton)
4. “last clear chance” doctrine—if defendant could have avoided the injury after that opportunity ceased to be available to the plaintiff, the defendant should be responsible even if plaintiff partly at fault b. Comparative Negligence (Comparative Fault)
1. sometimes judicially instituted, sometimes legislative
2. pure form—each party pays percentage of fault that is theirs
3. modified—more common a. “not as great as”—plaintiff 49% or less at fault b. “not greater than”—plaintiff 50% or less at fault c. South Dakota—plaintiff’s negligence slight compared to defendant’s gross negligence
4. damage can be assigned to parties immune or unknown c. Assumption of Risk
1. Not a separate doctrine but evidence of plaintiff’s negligence
2. has been absorbed into comparative fault
3. applicable when plaintiff does something they know is dangerous
4. Express a. plaintiff signs acknowledgement of risk assumption b. contractual waivers are void when:
1. they are adhesion “take it or leave it” contracts with parties providing essential needs and create unequal bargaining power: a. schools b. housing c. hospitals d. public utilities
5. Implied
2. the protected party (defendant) intentionally causes harm or engages in reckless, wanton, or gross negligence
3. when transaction violates public interest (i.e. fraud) a. by actions plaintiff assumes risk b. no assumption of risk if risk is not foreseeable c. no assumption of risk if no reasonable alternative d. affirmative defense of implied assumption of risk is the same thing as contributory negligence
2. Statutes of Limitation and Repose a. statutes of limitation bar action after certain amount of time
1. most states limit tort actions after 2 years from date of incident, sometimes 3 years
2. medical malpractice—2 years from time plaintiff discovers/should have discovered evidence of malpractice

a. statutes of repose protect manufacturers from product liability over time
(questionable constitutionality)
3. Immunities—no liability due to position, status, or relationship to plaintiff a. Families
1. inter-spousal immunity is rare
2. parental immunity—in most states a child can sue a parent a. generally no action will lie where parent is exercising authority or discretion in parenting (no standardized “reasonable parent”) b. most suits are motor vehicle injury where it is to benefit of both parent and child for child to recover (insurance money) b. Charities
1. charitable immunity obsolete—promotes justice and encourages care
2. charities are now big businesses and have insurance (i.e. hospitals) c. Employer Immunity—worker’s comp precludes tort actions even if employer was negligent d. State and Local Governments
1. generally no immunity
2. but no duty to provide protection for individuals who request it (overly burdensome) a. EXCEPT: when duty has been assumed and then breached b. i.e. 911 call during which operator agrees to assist (party likely to rely on that promise) e. The United States
1. Federal Tort Claims Act a. waives sovereign immunity b. consents to suit for negligent actions
1. except no suit will lie for negligence when employee is using discretion a. involves making a choice or judgment call b. must be grounded in social, economic or political goals c. does not involve ministerial duties
2. state fair arrest case—termination of arrest not proscribed by SOP—made with discretion for public policy so no liability
3. case in federal court, bench trial only, no punitive damages, strict limitations on attorney fees
2. cannot sue U.S. for intentional torts f. Public Officers
1. may be subject to personal liability for tortious conduct committed in the course of their official duties
2. however, official immunity may still protect (to prevent officials from avoiding difficult decisions due to fear of liability)
Vicarious Liability
—imposition of tort liability on non-negligent party due to relationship status
1. Respondeat Superior—“let the superior answer” a. employer liable for torts of employees within scope of employment

1. “scope of employment” defined broadly
2. helps compensate innocent victims b. used primarily to access party with insurance c. does NOT include coming to/leaving from work (“portal-to-portal” rule)
1. except if injury arises out of a foreseeable risk caused by employment
2. i.e. pesticide sprayed at work, employee drives home sick and injures someone on the way d. “frolic”
1. an act while at work that is clearly outside the scope of employment
2. no employer liability e. “detour”
1. act at work that is only a slight deviation from scope of employment
2. employer still liable
2. Independent Contractors a. negligence cannot be imputed to employer (no control over actions) b. EXCEPT when non-delegable duty of employer
1. i.e. where instrumentality (car, gun, etc.) can cause death or SBI
2. employer retains liability
3. Joint Enterprise a. Elements
1. agreement, express or implied, among the members of a group
2. common purpose being carried out
3. common pecuniary interest in that purpose
4. equal right of control b. negligence of 1 partner can be imputed to other partner c. all elements must be satisfied AT TIME of injury
4. Bailments a. when another party takes control of owner’s property with consent b. car rental companies are often statutorily responsible for renters’ negligence c. other than that, generally bailors are not responsible for bailees’ acts d. “family purpose doctrine”—parents liable for minor’s negligence in driving
5. Imputed Contributory Negligence a. cannot impute negligence of a driver to car’s owner unless special relationship b. borrower/lender not a sufficient relationship
Strict Liability
—Liability without intent and without negligence (without fault)
1. Animals a. having wild animals is considered so dangerous there is strict liability if the animal injures someone b. also applies to domestic animals with a known vicious propensity
2. Abnormally Dangerous Activities a. categories
1. blasting
2. storage of toxic chemicals and flammable liquids (in urban areas)
3. pile driving
4. crop dusting
5. fumigation with toxic gases

6. testing of rockets (WTF?)
7. fireworks displays
8. operation of hazardous waste disposal sites
9. operation of oil wells
10. storage of large quantities of water or other liquids b. factors to determine if activity is abnormally dangerous/ultra-hazardous
1. existence of a high degree of risk of some harm to the person, land, or chattel of others
2. likelihood that resulting harm would be great
3. inability to eliminate risk with reasonable care
4. extent to which activity is uncommon
5. inappropriateness of activity in place where it is carried out
6. extent to which the value to the community outweighs the dangerous attributes of the activity c. does not apply to:
1. use of firearms
2. transport of hazardous chemicals that is not ultra-hazardous
3. Limitations on Strict Liability a. lack of proximate cause will eliminate strict liability (mink eating kittens 2 miles away NOT proximately caused by demolition blasting) b. no strict liability for an act of God c. assumption of risk can negate strict liability (i.e. zoo-keeper)
Products Liability —injuries to people or damage to property caused by products
1. Negligence a. if a manufacturer negligently designs/makes a product, they are liable for damages caused by product b. MacPherson v. Buick Motor Co.
—wood used in wheel was defective—should have been caught on assembly line so Buick liable c. early cases were about torts overcoming privity of contract—torts wins because contract is between Buick and dealership but it is totally foreseeable (in fact, desired by plaintiff) that product will end up in stream-of-commerce
2. Warranty a. Express—when warranty is express and is breached, manufacturer is liable b. Implied
1. all products have an implied warranty of reasonable fitness for use
2. when product is used as intended and it causes harm, implied warranty is breached
3. liability cannot be disclaimed for a product dangerous to life
4. an adhesion contract is void for public policy (cars necessary to life so disclaimers by auto companies are made with unequal bargaining power)
3. Strict Liability for Products—applies even if no intent and no negligence a. a seller of a 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 user or consumer, or to his property if:
1. the seller is engaged in the 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
4. Misuse of a product is a defense to any action for products liability