Professional Documents
Culture Documents
09/13/2012
Intentional
Infliction
of
Serious
Emotional
Distress
1. Intent
2. Serious
Emotional
Distress
must
result
3. Defendants
conduct
must
be
Extreme
and
Outrageous
(beyond
al
boundaries
of
what
a
reasonable
person
has
to
bear
or
tolerate)
a. Mere
insults
(ethnic
or
otherwise)
are
not
sufficient
b. Relative
Relationship
may
create
Extremity
&
Outrage
c. Carrier
Doctrine
The
people
utilizing
a
service
of
kind
take
precedence
over
the
person
providing
it
4. Serious
Causes
severely
disabling
emotional
response
5. Percipient
Witness
a. Defendant
knew
that
the
Percipient
Witness
was
present
(because
you
might
see
them
hurt
and/or
dead
fortuitously
and
is
therefore
not
beyond
the
pall
and
the
court
must
cut
it
off
some
place)
b. Courts
have
much
trouble
with
this
because
the
so
dislike
the
first
one
Considerations
1. Dont
want
court
overwhelmed
by
these
cases
2. How
do
we
prove
these
cases
3. How
do
we
distinguish
the
meritorious
cases
away
from
the
non-meritorious
4. Bitchassedness
concern
Herskovitz
=
Loss
of
chance
NOT
Judge
decides
who
the
statute
protects,
etc.
(matter
of
law)
Torts
09/17/2012
When
determining
whether
conduct
is
extreme
and
outrageous,
the
atmosphere
in
which
said
conduct
is
said
to
have
occurred
must
be
taken
into
account,
along
with
the
type
of
person,
whether
there
is
a
pregnant
Conduct
can
grow
extreme
and
outrageous
if
repeated
over
a
specific
period
of
time
(3
a.m.
crank
calls)
Percipient
only
applies
when
the
victim
of
direct
attack
(sawed
off
head)
is
a
family
member
of
the
person
present
during
the
attack
Trespass
to
Land
1. Intent
2. Physical
Invasion
of
the
Possessory
interest
3. Directly
or
Indirectly
4. Privilege
Exist
a. Time
can
defeat
Privilege
b. Place
can
defeat
Privilege
Interference
to
Chattel
Continuum
Trespass
to
Chattel
(Repair
or
value
of
the
damages)
1. Intent
2. Interference
to
a
chattel
to
which
another
has
a
superior
interest
3. Harm
must
occur
(harm
is
irrelevant
if
the
harmed
party
is
)
a. To
the
chattel
(major,
i.e.
destroyed,
minor
i.e.
dogs
ears
pulled)
b. The
plaintiff
or
some
party
under
care
or
control
c. Dispossession
4. Mistake
doesnt
matter
Conversion
(Recover
the
value
or
cost)
1. Intent
2. Interference
to
a
chattel
to
which
someone
else
has
a
superior
interest
3. Harm
must
occur
(harm
is
irrelevant
if
the
harmed
party
is
trespassing)
a. To
the
chattel
(major,
i.e.
destroyed,
minor
i.e.
dogs
ears
pulled)
b. The
plaintiff
or
some
party
under
control
c. Dispossession
4. IN
JUSTICE,
defendant
should
be
required
to
pay
for
it
a. Chattel
is
destroyed
=
automatic
Conversion
b. Chattel
is
stolen
or
interfered
with
an
intent
to
steal
=
automatic
Conversion,
at
the
moment
said
chattel
is
touched
i. If
you
can
prove
that
the
Defendant
intended
to
steal
the
chattel
then
conversion
occurs
at
the
moment
it
is
interfered
with
with
the
intent
to
steal
it
c. Forced
Sale
In
a
case
where
a
chattel
is
destroyed
and
the
defendant
makes
restitution
the
defendant
has
in
effect
purchased
the
remnants
of
whatever
is
left
of
the
destroyed
chattel
Torts
09/20/2012
Privileges
1. Privilege
from
Consent
Not
actually
privilege
at
all
a. Removes
the
Tortiousness
from
an
action
b. Expressed/Actual
Consent
c. Implied
Consent
Hackbart
i. Defendant
bears
burden
of
proving
that
a
privilege
exists
i.e.
that
that
they
acted
reasonably
given
the
circumstances
1. UNDER
ALL
THE
CIRCUMSTANCES
WOULD
THE
DEFENDANT
CONCLUDE
THAT
THE
PLAINTIFF
CONSENTS
2. FAILURE
TO
SPEAK
UP
IS
NOT
(ALWAYS)
TANTAMOUNT
TO
IMPLIED
CONSENT
ii. Community
Customs
(i.e.
Football/Boxing)
-
Hackbart
1. Custom
overrides
rules
when
2. This
privilege
is
removed
by
notice
that
one
will
not
be
bound
by
the
community
iii. Emergency
Doctrine
Mohr
v.
Williams
1. Life
Or
Limb
Serious
2. Time
is
of
the
Essence
3. Cant
Give
Consent
4. Reasonable
Person
would
consent
given
the
circumstances
5. The
defendant
wouldnt
know
the
plaintiff
would
have
refused
(golf
buddy
doctor
blood
transfusion)
iv. When
is
Consent
Not
Consent
1. When
given
under
duress
2. When
Consent
would
violate
the
positive
law
a. In
jurisdictions
where
the
law
is
designed
to
protect
individuals
from
their
own
foolishness
b. In
jurisdictions
where
it
isnt
3. It
is
given
pursuant
to
a
misapprehension
of
a
fact
that
is
material
to
the
conduct
(or
when
defendant
know
that
plaintiff
is
laboring
under
such
misapprehension
of
fact)
2. Self
Defense
a. One
of
the
oldest
privileges
b. Very
important
to
the
courts
and
as
such
is
accorded
great
breadth
Torts
10/04/2012
Negligence
1. Duty
Obligation
requiring
an
actor
to
conform
to
a
certain
standard
of
conduct
for
the
protection
of
others
against
unreasonable
risks
a. Foreseeability
by
Reasonable
Person
How
likely
is
it
that
the
action
will
make
life
more
risky
b. Danger
c. Utility
d. Burdensomeness
e.
2. Breach
The
failure
to
conform
to
such
obligatory
standard
3. Causation
Causation
in
fact
and
proximate
cause
4. Damage/Harm
Actual
loss
or
damage
resulting
to
the
interests
of
another
Courts
dont
expect
you
to
injure
yourself
to
save
another
person.
Judge
Learned
Hands
Formula/Carroll
Towing
Analysis
PL>B
P=
How
foreseeable
is
an
issue
L=
Potential
seriousness
B=
Burden
to
prevent
it
Read
through
Hodges
for
Read
Through
Medical
Malpractice
for
Thursday
10/08/2012
O.R.P.P.
=
The
Ordinary
Reasonable
Prudent
Person
is
a
SHIMMER!!!
U.T.C.
Under
The
Circumstances
Note:
O.R.P.P.
isnt
always
right
shims
always
rational
Vaughn
v.
Menlove
Must
act
as
a
would
a
man
of
reasonable
and
prudent
caution.
Standard
NOT
Best
of
his
ability
Standard
Because:
We
need
predictability
Delair
v.
McAdoo
I
didnt
know
is
not
a
defense
because
O.R.P.P.
would
know.
I
didnt
know
it
was
dangerous
not
a
defense
because
O.R.P.P.
would
know.
When
O.R.P.P
doesnt
know
what
to
do
he
takes
reasonable
steps
to
find
out
what
shim
should
do
When
O.R.P.P.
knows
more
he
does
more
Trimarco
v.
Klein
(Custom
Evidence
Case)
Evidence
of
Custom
X
is
done
customarily
Evidence
of
Custom
will
be
admitted
at
times,
but
it
is
probative
not
determinative
Elements
of
Evidence
of
Custom
a. O.R.P.P.
U.T.C.
is
aware
of
it
b. Its
Reasonable
in
General
c. Its
Reasonable
Under
the
Circumstances
Cordas
v.
Peerless
(Emergency
Doctrine)
When
theres
an
emergency
there
is
still
O.R.P.P.
U.T.C.
O.R.P.P.
Always
pits
himself
first
Emergency
Doctrine
isnt
available
to
a
person
when
they:
a. Creating
the
emergency.
(Turezyn
disagrees)
b. Fail
to
anticipate
the
emergency
10/22/2012
end
of
violation
of
statute
10/25/2012
Two
Schools
of
Thought
Doctrine
If
there
is
evidence
that
a
doctor
of
good
standing
would
follow
either
procedure
A
or
procedure
B
then
the
case
should
not
go
to
the
jury
because
there
is
no
harmony
amongst
the
medical
community
regarding
the
matter
Review
1. Medical
Malpractice
2. Informed
Consent
a. Test
The
patient
must
be
apprised
to
the
degree
to
which
a
reasonable
patient
would
desire
to
be
apprised
i. Either
prove
Fraud
or
Mere
Lack
of
Info
ii. Reasonable
Patient
v.
This
Patient
iii. Extent
of
Disclosure
1. Research
Interests
2. Financial
Interest
3. Alcoholic
4. Deals
w/
Insurance
Company
if
any
b. Evidence
of
Custom
If
the
thing
is
customary
then
it
is
not
for
the
court
to
weigh
in
on
what
is
customary
i. Except
in
these
cases
1. Helling
v.
Carack
Glaucoma
Case
2. U.S.
v.
Cantus
AIDS
Screening
Test
3. Incolingo
v.
Ewing
Telephone
Prescription
Test
c. Medical
Malpractice
Crisis
Resolution
Attempts
i. Hard
Cap
on
Damages
ii. Cap
on
Pain
&
Suffering
iii. Disincentivization
of
Lawyers
and
Law
Suits
iv. Tribunal
3. Determining
Standard
of
Care
a. Finding
of
Fact
i. Type
of
ii. No
Precedential
Value
b. Adoption
of
Statute
as
Standard
of
Care
(e.g.
Osborne;
Perry
v.
S.N.)
i. Two
Foundational
Facts
that
allow
this:
1. The
statute
designed
to
Protect
the
Class
of
Person
that
was
damaged
2. The
risk
at
action
is
the
same
or
at
least
one
of
risks
that
the
statute
seeks
to
circumvent
ii. Types
of
Statutes
typically
borrowed
1. Those
with
a
pre-existing
common
law
duty
(Vehicular
Statutes)
2. Misfeasors
v.
Nonfeasors
3. Trickiness
or
Obscurity
of
the
statute
4. Violation
of
Statute
Direct
cause
or
Indirect
Cause
iii. Types
of
Statutes
typically
declined
11/01/2012
Procedural
Effects
of
Borrowing
a
Statute
1. Unexcused
Violation
of
s
Statute
is
Negligence
Per
Se
(i.e.
no
room
for
proving
rationality)
Cardozo
in
Herzog
2. Presumption
Created
which
must
be
refuted
(room
to
prove
rationality
of
violation
granted)
3. Mere
Evidence
Jury
Call
if
violation
of
statute
Proof
of
Negligence
1. Burden
of
Proof
a. Preponderance
on
party
with
burden
of
persuasion
b. Defendant
-
c. Plaintiff
Burden
to
come
forward
2. Types
of
Evidence
a. Circumstantial
b. Direct
11/05/2012
Burdens
1. Burden
of
Production
Reasonable
people
could
believe
from
the
evidence
2. Burden
of
Persuasion
Did
the
jury
find?
3. Burden
of
Proof
(Preponderance)
What
are
we
proving?
1. Created
unreasonably
dangerous
condition
(duty
as
soon
its
created)
2. Didnt
Create
it
but
had
knowledge
(Duty
as
soon
as
there
is
awareness)
a. Direct
Evidence:
Told
the
official
b. Circumstantial:
Official
walked
a
around
the
banana
peel
Theory
of
Negligence
1.
2. Grape
Case
Res
Ipsa
Loquitur
Circumstantial
Evidence
of
Negligence
1. Old
School
a. Defendant
must
be
in
exclusive
control
of
the
instrumentality
or
event
b. Plaintiffs
negligence
did
not
contribute
to
the
harm
c. The
event
usually
doesnt
occur
in
the
absence
of
negligence
2. Modern
Approach
a. When
the
event
happens
it
is
usually
the
product
of
negligence
(McDougald
v.
Perry)
b. If
there
is
negligence
the
defendant
is
the
most
likely
source
of
negligence
(Larson
v.
St.
Francis
Hotel)
i. Unless
a
patient
who
is
1. Unconscious
2. Damage
is
to
a
healthy
part
of
the
body
ii. Then
a
duty
to
protect
from
negligence
of
other
parties
3. Will
require
expert
testimony
11/08/2012
Procedural
Effects
of
Res
Ipsa
Loquitur
Doctrine
1. In
majority
of
jurisdictions
Res
Ipsa
Loquitur
creates
an
inference
which
means
that
it
is
only
circumstantial
evidence
(Crabtree)
2. In
some
juridictions
Res
Ipsa
Loquiutr
creates
a
presumption
of
negligence
3. In
other
jurisdictions
Res
Ipsa
Loquitur
creates
a
prima
facie
switches
the
burden
of
persuasion
Negligence
Per
Se
(Borrowing
the
Statute
for
the
Standard
of
care)
1. Looking
to
the
statute
to
determine
what
O.R.P
would
do
under
the
circumstances
2. Two
Foundational
Fatc
a. Statute
designed
to
prtect
type
of
person
b. State
designed
to
mitigate
this
particular
risk
3. 6
Perry
Factors
a. Create
a
duty
a
that
didnt
b. Crate
a
dfuty
to
act
where
on
wasn;t
c. Was
statute
obscure
d. Ruinous
liability
4. If
allowed
jury
must
decide
a. Was
statute
violated
b. Did
the
c. Were
there
damages
5. Civil
procedure
Effect:
a. In
the
majority
of
jurisdcitions
an
unexcused
violation
of
the
statute
is
Negligence
Per
Se
b. Violation
of
statute
creates
presumption
that
may
be
rebutted
by
an
excuse
c. Violation
of
statute
is
just
evidence
6. If
the
court
says
the
statute
cant
be
used
the
argument
can
still
be
made
that
they
didnt
act
as
O.R.P.
Res
Ipsa
1. Just
a
way
of
helping
the
party
get
what
we
would
usually
call
direct
or
circumstantial
evidence
2. Two
Foundation
Facts
a. Almost
always
explained
by
negligence
b. If
there
were
negligence
the
defendant
was
the
most
likely
cause
c. Some
jurisdictions
still
use
the
exclusive
control
and
contribution
3. Jury
Questions
4. Procedural
Effect
of
Res
Ipsa
a. Majority:
Inference
of
Evidence
(creates
circumstantial
evidence)
b. Minority:
Creates
a
presumption
c. Very
Few:
Switches
the
burden
of
persuasion
5. If
court
denies
Res
Ipsa
Loquitur
the
party
that
tried
to
invoke
it
almost
always
out
of
court
because
its
only
used
when
you
dont
evidence
November
12
2012
Causation
in
Fact
Perkins
(25
Mph
Train)
1. Can
we
say
that
but-For
defendants
negligence
this
wouldnt
have
happened?
(i.e
would
it
have
not
happened
anyway
2. Lifeguard
v.
Yacht
Hypothetical
Reynolds
(Stairway)
1. More
likely
than
not
standard
as
Burden
of
Persuasion
Gentry
(Shotgun)
1. Bankruptcy
stays
a
lawsuit
Kramer
(Broken
Transom)
Medical
Causation
1. Sometimes
expert
testimony
is
required
to
establish
Causation
In
Fact
a. Severed
Toes
Hypothetical
b. Elevated
Blood
Pressure
2. Only
Specific
Exposure
will
get
you
to
the
jury
a. General
Causation:
1/100
Chance
b. Specific
Causation:
Only
one
way
a
thing
could
happen
Herskovits
Loss
of
Chance
1. 50/50
chance
the
jury
cannot
be
convinced
that
the
decedent
would
have
lived
because
the
defendant
cannot
meet
the
burden
of
proof
2. Where
the
decedent
has
a
51%
of
survival
the
case
is
able
to
be
maintained
at
bar
3. What
is
the
harm
that
the
doctors
negligence
caused:
Loss
of
Chance
4. Damages
=
Value
of
remaining
life
*
%
of
Life
Taken
5. Many
jurisdiction
will
not
adopt
Loss
of
Chance
because
the
damages
associated
therewith
are
based
on
a
false
syllogism
6. Have
PA,
NY,
NJ,
CA,
and
TX
all
but
Texas
Daubert
Courts
must
consider
whether
scientific
method
was
used
1. Evidence
must
be
relevant
to
the
proceeding
in
that
it
satisfies
the
burden
of
production
in
that
it
proves
that
more
likely
than
not
2. Proposed
evidence
must
relevant
and
reliable
3. Courts
want
anecdotal
evidence
from
expert
testimony
as
opposed
from
statistical
evidence
4. Jurisdictions
that
allow
statistical
evidence
want
Hill
v.
Edmonds
Multiple
Causes
of
Action/Concurrent
Causation
1. Double
But-For
Causation
Anderson
(Breakdown
of
But-For)
Multiple
Sufficient
Causes
1. Multiple
Sufficient
Harm
Any
one
of
the
multiple
causes
in
and
of
itself
to
cause
the
harm
but
they
combined
2. So
long
as
a
partys
cause
was
a
substantial
factor
they
will
be
liable
3. Legal
Fiction
created
to
avoid
the
joint
tortfeasors
from
injuring
the
plaintiff
and
said
plaintiff
not
being
able
to
make
out
a
case
Tice
-
Independent
Alternative
Causation
1. When
the
defendant
gets
all
possible
defendants
and
plaintiff
shows
that
all
possible
defendant
were
negligene
and
despit
due
diligence
they
cant
determine
which
one
it
was
the
burden
is
shifted
to
each
of
the
defendants
to
show
that
more
likely
than
not
it
wasnt
my
round
and
if
they
cant
exonerate
themselves
they
will
each
be
liable
for
the
entire
amount
of
the
damages
(the
plaintiff
will
not
be
able
to
recover
more
than
100%
of
the
damages)
11/15/2012
Sindell
1. Marketshare
Rule
So
long
as
those
defendants
sued
singly
or
collectively
hold
a
substantial
amount
of
the
total
marketshare
and
defendant(s)
were
negligent;
plaintiff
after
having
done
due
diligence
cant
determine
the
the
court
will
shift
the
burden
of
showing
no
factual
causation
onto
each
of
the
defendants
and
if
they
cannot
they
will
be
held
liable
to
the
injured
party
up
to
their
share
of
the
market
a. Marketshare
Problem
b. Judgment
Difference
Redistribution
1. Four
Circumstances
a. The
Unexpected
Happened
b. Intervening
c. Public
Policy
d. Where
we
might
have
an
example
of
shifting
liability
2. See
Turezyns
Chart
a. Courts
adopt
one
either
approach
A
or
B
3. Proximate
v.
Remote
Harm
-
Ryan
a. Proximate
Harm
Harm
that
is
immediate,
ordinary,
natural,
reasonably
anticipated,
and
within
the
defendants
control
b. Remote
Harm
Unimmediate,
unordinary,
unanticipated,
and
without
the
control
of
the
defendant
c. Defendant
does
not
pay
for
remote
stuff
4. Triggering/Aggravating
Rule
Rule
Bartolone
v.
Jeckovich
a. Egg
Shell
Plaintiff
Rule
You
must
take
the
plaintiff
as
you
find
them
b. Factual
Causation
must
be
proven
by
expert
testimony
c. Only
applicable
to
Mental
Illness
5. Polemis/
Magon
Mound
a. Factual
Predicate
i. Plaintiff
can
prove
that
defendant
was
negligent
ii. The
risk
that
came
to
fruition
was
not
the
risk
that
was
reasonably
expected
iii. There
was
direct
causation
b. Polemis
Polemis
Rule/Direct
Rule
of
Direct
Causation
i. Defendant:
Its
true
that
we
were
negligent
but
the
thing
was
not
foreseeable
Finish
Chapter
&
Read
Four
Cases
on
Respondeat
Superior
11/19/2012
Legal
Causation
1. When
the
unforeseeable
happens
2. Defendant
is
negligent
but
before
his
negligence
come
to
fruition
something
else
happens
3. Policy
4. Shifting
Liability
Wagon-Mound
II
Fire
was
Foreseeable
this
time
Palsgraf
If
you
arent
in
the
zone
of
danger
fuck
you
Duty
is
only
owed
to
those
in
the
zone
of
danger
Orbit
of
Danger:
The
risk
reasonably
perceived
(circumstance
specific)
Its
not
enough
that
a
duty
was
owed
and
breached
the
plaintiff
in
the
zone
of
danger
must
make
a
claim
Hindsight
Approach:
Whether
or
not
what
occurred
was
an
unreasonable
risk
that
was
foreseeable
or
not
Kinsmin
I
What
was
the
risk
that
as
created?
Where
the
risk
comes
about
albeit
in
an
unforeseeable
manner
the
negligence
will
still
be
he
same
Mere
economic
loss
is
where
the
court
will
cut
liability
where
the
defendant
was
merely
negligence
Judges
dont
decide
when
to
cut
off
liability
09/21/2012
Intervening
Factors-Force
Majeure
When
dealing
with
a
force
majeure
you
must
make
certain
there
is:
1. Negligence
2. Act
of
God
Completely
unforeseeable
Most
courts
where
the
act
of
God
brings
about
the
same
risk
that
was
created
by
the
negligence
will
still
hold
you
liable
as
in
Kinsmin
I,
unless
the
intervening
cause:
1. is
intentional
2. one
was
contracted
to
protect
someone
(bodyguard),
or
3. one
defeats
protection
that
plaintiff
has
against
intentional
action
(window-
washer
fails
to
put
alarm
back
on)
4. Bring
into
contact
someone
you
know
or
should
know
has
dangerous
predilections
5. If
you
brought
into
custody
someone
you
know
had
criminal
tendencies
and
you
allowed
them
to
escape
Policy
1. Providing
alcohol
to
a
person
does
not
create
liability
for
the
social
host
Shifting
Liability
Someone
takes
complete
charge
of
the
risk
Kids
sold
shotguns
11/26/2012
Date
of
Repose
Immunities
1. Governmental
2. Charitable
3. Parental
Contributory
Negligence
v.
Comparative
Negligence
Comparative
Negligence
1. Not
As
Great
As
2. Not
Greater
Than
Express
Assumption
of
the
Risk
No
breach
but
one
has
agreed
to
hold
another
party
harmless
1. Usually
in
contracts
but
need
not
be
2. 2
Defenses
a. Is
the
risk
that
occurred
one
of
the
risks
that
the
party
agreed
to
accept
b. Even
if
I
have
indeed
accepted
this
risk
giving
full
force
to
this
violates
public
policy
11/28/2012
Implied
Assumption
of
the
Risk
1. Primary
-
Baseball
in
the
stands
at
a
ball
park/Not
tempting
Dennis
Rodman
2. Secondary
defendant
has
exposed
the
plaintiff
but
the
plaintiff
knowingly
and
voluntarily
agree
to
the
risk
or
remains
in
the
orbit
of
danger
a. Must
Know
of
and
Appreciate
the
danger
b. Must
make
the
choice
i. Was
there
a
reasonable
choice?
(Rush)
Limited
Duty
Failure
to
Act
1. No
Duty
to
Act
Unless
College
Girl
Case
a. Relationship
i. Parent
Child
ii. Teacher
Student
iii. Employer-Employee
b. Factual
Responsible
even
if
not
legally
responsible
(Place
under
Aggravated)
c. Relationship
with
Aggressor
When
youre
in
the
best
possible
position
to
do
something
(Biting
Child
that
does
not
warn)(Wife
of
pedophiliac)
d. Take
on
a
Duty
i. Where
theres
a
promise
for
serious
duty
ii. Cannot
Negligence
Intention
of
Emotional
Distress
1. Impact
Rule
a. There
must
emotional
distress
&
b. There
must
impact
(however
slight
touching)
2. Zone
of
Danger
Rule
(Daley
v.
Lacroix)
a. Plaintiff
must
have
been
in
the
zone
of
physical
danger
but
suffered
Emotional
Distress
b. Defendants
conduct
must
cause
a
physical
manifestation
of
emotional
distress
c. Exception
of
Sui
generis
i. Negligent
Transmissions
of
Messages
About
Death
ii. Mishandling
of
Corpse
3. Thing
v.
LaChusa
Rule
(California)
a. Member
of
the
household
immediate
family
member
b. At
the
scene
of
the
accident
Unborn
1. Wrongful
Life
a. Life
is
not
a
damage
Jurisdiction
b. Expenses-Less-Healthy
Child
Costs
2. Wrongful
Death