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Torts

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

c. Deadly force can be used


i. In most jurisdictions you must try to retreat first
(unless you are at home)
d. As a defense to transferred intent battery, self-defense
transfers
3. Defense of third parties
a. When a relationship actually exists i.e. en loco parentis
employer/employee(?)
b. When a mistake occurs the onus falls on the protector of the
third party should it turn out that said party didnt have the
privilege
4. Defense of Property
a. REASONABLE NOT DEADLY force is permissible
i. Deadly force is any force that causes serious damage
b. Permitted to threaten to use more force than you are actually
permitted to use
c. Once possession is lost legal recourse is the only option
d. May take property back
e. Interruption of Possession
i. Legal fiction
ii. If in pursuit then possession is just interrupted
iii. Reasonable force pursuant to demanding property back
while in pursuit provided that such is not futile
f. Shopkeepers Privilege
i. Reasonable suspicion that some nefarious action is
afoot (stats or a feeling will not suffice)
ii. Detainment for a reasonable amount of time
iii. Reasonable search
iv. Can be exercised in the immediate area
5. Privileges Must be ranked Property Recovery Hypothetical

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


10/11/2012 Professional Standard


Roberts v. Louisiana
O.R.P.P. with impediments/disability WHEN THEY ARE RELEVANT
Respondeat Superior Let the master answer for the torts of his servant
Both legal theories require that the blind gentleman was negligent

Robinson (Child Standard)
1. Rule of 7 p.169
2. What Kind of activity 2 types of jurisdiction
a. Inherently dangerous
b. Adult activity
Insane Person
1. O.R.P.P. still applies
2. Sudden nature of insanity
3. Nature of the Insanity must affect ability to be O.R.P.P.



10/18/2012 Professional Standard
Professional Standard Member of the profession in good standing
1. Heath v. Swift Wings Inc.
2. Expert Witness Necessary, except for some very rare circumstances (loop-de-
loops over the Rockies)
3. Duty doesnt depend upon contract, even if it is for specific result
4.
Lawyers
1. Hodges v. Carter
a. Trying two (2) cases in a legal malpractice suit
b. Defense for lawyer: the underlying case was a uncollectable
c. Blowing the Statute of Limitations is pretty much an automatic
malpractice ruling, no expert witness needed
d. Client must decide to settle, not the attorney
Doctors
1. Boyce v. Brown
2. Scott v. Bradford
3. Morrison v. McNamara
Teacher
Clergy

Read through





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

1. Those that have no bearing on the action at hand


(emissions sticker statute in a car crash)
2.
c. Judge Made O.R.P.P. would always
i. Must be made with care (Cardozo in Pokora)
d. Legislation that Creates Torts in Common Law (e.g. Dram Shop Act)
i. Precludes the jury making things up

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

The Causal Nexis


Was it the sine qua non (but for)? (Perkins v. Texas & N.O. R. Co.)
If the damages would have come about whether the negligence occurred or
not then it was not a but for cause.
Burden of Proof is More Likely Than Not
Two Types of Causation
1. General Whatever were focusing on can cause what is being
complained of (1/100 chance qualifies)
2. Specific In this case more likely exposure to defendants negligence
was the cause (1/100 is no help)

Practice Exam Review
Negligence requires misfeasance and doesnt deal with nonfeasance, although some
jurisdictions find a cause of action for negligence based on the ________ Doctrine if
there was a promise made that was serious and the promisor knew that the promise
was depending upon to his detriment
Assumption of the Risk Defense Party understands the risks and their magnitude
and willingly assumes the risk
Negligent Infliction of Emotional Distress
Collateral Source Rule Defendant doesnt get benefit of a third party paying any
fees

Burden of Proof

Burden of Production Could reasonable people find that each element
(judge)

Burden of Persuasion More likely than not did the person do it (finder of
fact, either judge or jury)
Read through Legal Causation

ADD PROOF CASES!!!



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

DO NOT USE PROXIMATE CAUSE!!! IT LEGAL


CAUSATION!!!!
Either an

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

ii. Defendant is liable because of the


directness/immediacy i.e. there was no intervening
cause
1. There must be a set stage: all factors have to be
in place at the time except Defendants
negligence
2. Particular Plaintiff must be at risk
c. Wagon Mound Wagon Mound Rule
i. Wagon Mound Approach Liability is limited to
foreseeability no matter what


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

Talk to Turezyn about Notes


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

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