1

CHAPTER 1 :OVERVIEW OF MODERN TORT LIABILITY

Tort- a civil wrong remedy may be obtained form of damages
Largely a common law subject o States have autonomy except for the limitations of constitution Concerned with the costs of accidents past and future

o Distribute fairly cost of past accidents by determining if and the amount P entitled o And under different view question is who can best bear loss based on wealth @ odds with the fault principle o Also important to keep in mind competing Public Policy Base liability on fault Limit liability in proportion to fault Deter accidents Spread losses broadly Shift losses to deep pockets Reconcile burdens with benefits Foster predictability Facilitate progress and economic growth Promote administrative convenience and efficiency Discourage the waste of resources Accord due deference to co-equal branches Fully compensate victims
Categories

Remedies: Realities:

Intentional injury Failure to exercise care o recklessness o negligence Strict liability Damages, injunctions, restitution, self-help Settlement, cross-claims, contingent fees

Liability Based on Fault o Intentional injury Purpose Knowledge Recklessness Subjectively defined conscious disregard of serious risk Objectively defined-risk totally disproportionate to utility Negligence Conduct posing an unreasonable risk of harm Liability based on No fault o Strict Liability o Intentionally Inflicted Injury

2 o Intent state of mind accompanying an act; mental resolution or determination to do it. Requirement is necessary to establish intentional tort Purpose- subjective desire to produce a particular result Knowledge- substantial certainty Certain or all practical purposes that a particular result will occur, even if that end is not desired Vosburg v. Putney (kicked leg case) young schoolboy kicks classmate unexpectedly caused serious medical consequences for the boy who was touched b/c had previous injury D intended to cause unconsensual constact (a result prohibited by battery) he was held liable for the damages, even though he did not intend to cause serious harm to the Ps leg Intent to cause a result that he law forbids is sufficient enough for intentional tort liability even if one does not intend to cause harm Garratt v. Dailey (old lady knocked over case) A 5 yr. old boy moves chair from under old woman when she is trying to sit down. The woman sued the boy for battery. concluded old woman began slow process of sitting down, & boy knew with substantial certainty woman would fall. The boy was held liable. Actions Based on Lack of Care Negligence- risk reasonably perceived defines duty forseeability plays a big role in negligence a. Factors Foreseeable likelihood that will cause harm Foreseeable severity of harm will follow Precautions to eliminate or reduce the risk of harm Recklessness Subjectively : conscious disregard of a serious risk Objectively: risk totally disproportionate to utility (extreme lack of care) More blameworthy than negligence but less than intentional Precaution that would eliminate or reduce the risk of harm is so slight relative to the magnitude of the risk, and failure to avoid such harm is reckless Subject to punitive damages like intentional torts, but negligence cannot Contributory Negligence & Assumption of the Risk Apply only to negligence, recklessness, and strict liability Contributory Negligence failure to exercise reasonable care on ones own behalf Assumption of the risk Voluntary confrontation of a Subjectively appreciated danger With no expectation that D will exercise care

3 Effect of Contributory Negligence @ common law CN could be raised as a defense only in a negligence action and was always a 100% bar to liability Under comparative negligence CN is no longer always a 100% bar 4 states still have common law CN Under comparative fault CN is no longer always a 100% bar and may be raised in actions other than negligence, except typically suits based on intentional wrongdoing Does not apply to intentional torts, only recklessness, negligence, and strict liability TX is modified comparative fault Comparative Principles -2 varieties Pure-Negligence Ps recovery is reduced by Ps percentage of negligence or fault Modified Negligence If P <50% - reduced recovery If P>50%-zero recovery 50-50:Depends on phrasing of state law Effect of Assumption of Risk @ common law AR (or its counterpart consent) could be raised in any action and was a 100% bar to liability Under comparative principles AR is sometimes a 100% bar not liability and sometimes only reduces recovery (b/c in those cases it is merged with comparative negligence or comparative fault) Applies only to negligence, recklessness,& strict liability AR is more venturing in the face of danger v CN which is carelessness Contingency Fee Contracts Lawyers financial interest in his clients case depends on success If the lawyer wins the case and gets $ for client, lawyer gets to keep percentage of the recovery (about 30-35%) usually stipulate no upfront retainer fee paid Strict Liability What Makes it Strict liability Weakening or eliminating requirements of fault , namely Foreseeability Blameworthy conduct There are different varieties of SL Some are more strict than others

4 Strict liability-that is based on the breach of an absolute duty to make something safe limited range of tort cases, most important products liability respondeat superior (employer liability for the torts of employees within the scope of employment B. Consequences of Classification Scope of Liability willing extend liability and award greater compensation for intentional and reckless conduct v strict liability and negligence If conduct is highly blameworthy then there is a reduced risk of imposing liability that disproportionate to fault Punitive/exemplary Intended to deter & only available in egregious cases where D conduct is highly culpable(wrong, evil, improper) only for Intentional torts descended from the 5 writs of trespass battery, assault, trespass to chattels, trespass to property, false imprisonment Ordinary negligence will NEVER get punitive damages , but sometimes in gross negligence( a lack of slight diligence or care) Strict Liability cases awarded punitive ONLY when evidence shows high degree of blameworthiness on D Respondeat superior Person w/out fault held vicariously liable for the tortious actions of another because of their relationship Employer held liable for torts of employee acting within the scope of employment Time, place and whether conduct was done to serve the business purpose of the employer less available for intentional then negligent, recklessness falls in b/w there Parental Liability for Torts of Minor Children General rule a parent is not liable for torts of minor child by mere fact of parentage (common law rule) Bases of Liablity Vicarious Liablility (e.g. employer/employee, principal/agent) Personal Liability e.g. concerted action, failure to control Statutory Liablity child has to be a certain age must be a certain type of action amount is usually capped off in TX only liability for property, not personal injuries Why Sue a child

5 May be covered by parents insurance May have non exempt assets May later obtain assets But judgment may be dischargeable in bankruptcy Statute may transfer liability to parent in whole or in party **some states do not extend liability for children under the age of 5**
Tort Damages 1) Nominal 1) vindicate the technical invasion of the Ps rights only if no actual injuries are proved 2) Only when there are no compensatory 3) Only for intentional??? 2) Compensatory (a.k.a. actual) 1) To compensate for such things as lost wages ,medical expenses, and pain and suffering 2) Can get for humiliation even if there is no physical injury 3) Can get compensatory for all of them 3) Punitive (a.k.a. exemplary) 1) To punish or make an example of D for conduct that is very outrageous **majority of courts hold there must be an award of compensatory before punitive is given but small amount of courts give punitive when there are only nominal**

I.

Chapter 2: Intentional Torts

A. Intent a. Intent is a state of mind about consequences or results b. Intent to injure is not required c. A mistake as to the surrounding facts does not preclude a finding of intent, unless the mistake is induced by the P d. Intent produced by mental deficiency is sufficient to support tort liability B. **Concept of Intent** i. Intent by purpose a. Desire on part of the actor to bring about a certain result; OR ii. Intent by knowledge a. Actor knows with substantial certainty that his act will bring a prohibited result 1. Intent to injure a. Proof of intent to harm is not a prerequisite to intentional tort liability i. Lambertson v. United States meat hook case ii. Federal government meat inspector jumps on the P back and pulls a cap over the P face causing the P to strike his face on nearby meat hooks and caused him some serious injury iii. Court held that the intent that is necessary for battery is the intent to make contact, not the intent to do injury, and thus it was irrelevant that the inspector meant no harm. Injury was a battery and not negligent so the tort was outside the Federal Tort Claims Acts waiver of sovereign immunity and P could not recover from government. iv. Federal Tort claims act-can sue for types of negligence, but no intentional tort by employee b. Degrees of Probability

6 i. If actor knows consequences are certain or substantially certain to result from his act and continues then treated as fact that he desired to produce the result. ii. As probability that consequences will follow decreases, and becomes less substantial certainty , actors conduct loses intent and become reckless iii. As probability decrease further ,and amounts only to a risk that result will follow, it becomes ordinary negligence c. Motive to commit a particular result or harm to the victim is NOT required in an intentional tort 2. Intent & Mistake i. Mistake by the D about the facts is normally irrelevant to the question of intent a. Ranson v. Kitner wolf case, b. D shot Ps dog by accident, thinking that the dog was wolf. c. liable for trespass to chattels even though the defendants were acting in good faith since the intended result of the bullet striking the animal was wrong, not the inadvertence of killing the dog. d. good faith does not matter, even if reasonable or unavoidable, does not by itself serve to absolve the defendant of liability, so long as the result was intended. ii. Induced Mistake a. D may escape liability if the mistake about the facts was induced by the p a. Ex. owner in wolf case dressed up dog as wolf to trick D b. Volitional Act Requirement: There is NO tort liability for an involuntary act. i. Defendant unintentionally touches plaintiffs face as a result of plaintiffs abrupt movement passing by the defendant (on subway); ii. If a 3rd person takes hold of the defendants hand and strikes the plaintiff with it, the voluntary act is that of the 3rd person, thus the 3rd person will be liable for battery 3. Insanity & Intent i. McGuire v. Almy (crazy lady who strikes nurse) a. D mental case strikes and injures her nurse with a piece of furniture after threatening that if anyone entered her room she would kill them purpose established here). b. Rule: If D is capable of entertaining, and in fact entertains the same intent that would be sufficient to hold a sane person liable, then liability will be imposed regardless of whether the insanity produced intent. c. Court supported decision on a. policy of deterring accidents -Rule imposing liability that makes more watchful those persons who have charge of the D and who may be supposed to have some interest in preserving his property b. deep-pocket rationale a loss should be shifted to the one who caused the loss if that person can afford to bear it

7 c. Judicial efficiency unwise to expend judicial resources attempting to resolve legal questions which are mired in uncertainty or complexity that tone cannot reasonably hope to sort them out successfully d. Unnecessary to encourage the persons responsible for D to exercise greater care, because had duty to prevent D from harming herself or others e. **Authority case as to whether an insane person can be held liable for an intentional tort. Transferred Intenta. If both the tort intended and the tort resulting are within the 5 torts descended from the writ of trespass (battery, assault, false imprisonment, trespass q.c.f. and trespass d.b.a.), there is sufficient intent to impose liability iii. Dont require proof of harm with the exception of the last one iv. No proof then nominal traditionally $1 to vindicate technical right b. However, the intent transfers only if the D acts wrongfully v.if no proof then nominal traditionally $1 to vindicate technical right to P c. Ex. if D shoots to frighten A (assault) but actually strikes A there is an intentional battery a. If bullet to frighten A misses A and strikes B, even if Bs presence was unexpected still liable for battery. b. intention follows the bullet d. Keel v. Hainline(eraser battle case) c. Eraser battle erupted while teacher was absent from a classroom. Although the boy throwing the eraser intended to strike or scare someone near the far wall(battery & assault) the eraser hit a little girl who was not participating in the eraser battle and injured her eye (battery). The child was liable because his intent transferred and made him liable for battery. d. Keel also claimed that he was just getting the erasers and handing them to the other students that he was still just as responsible for the tort e. If D conduct was not wrongful then transferred intent does not work and P might be better off suing for negligence then on a transferred intent claim vi. Brudney v. Ematrudo (campus riot case) a. cop attempted to use reasonable force to free another officer from an attack by a demonstrator during a campus riot. The officer accidentally struck a 3rd person with his stick. This result was privileged. Court held that there could be no liability to the 3rd person for assault and battery because the D had acted within reasonable limits. f. In cases like Keel v. Hainline, the innocent unexpected victim would be better off suing for negligence or recklessness than an intentional tort based on transferred intent.

ii.

8 g. The idea behind transferred intent is that the defendants intended act is so wrongful that the defendant should not be permitted to escape liability for damages that were inflicted merely because the defendant did not fully anticipate the event that caused them injury. vii. Transferred intent does NOT apply to negligence or recklessness C. Battery intentional, unconsented, harmful or offensive touching of plaintiffs person a. Elements prima facie case Intent by purpose or knowledge to make contact (or transferred intent) Offensive(unreasonable) or harmful offense, the standard is that of an ordinary person, unless the D knows P has a peculiar sensitivity harmful if pain or illness results, or if the structure or function of any part of the plaintiffs body is altered in any way ,even if the alteration causes no other harm Contact - touching of the plaintiffs person or effects, and Protection from unconsented contact extends to every part of the body and to anything attached to it and practically identified with it. Absence of consent Consent assumed to minor touching warranted by social usages prevalent the time and place .ex is a tap on shoulder to get information b. Awards for Battery damages i. Nominal ii. Compensatory iii. Punitive/exemplary c. Noble v. Louisville Transfer Co (cab driver case) No battery b/c no harmful or offensive contact which is required for battery. d. **When considering un-consented physical contact Relationship of the parties (ex. one probably has to put up more with friends and family) Availability of alternatives (could the D have avoided making contact by detouring few steps) Degree of force that was used P voluntary presence at a location where touching is foreseeable e. Picard v. Barry Pontiac Buick (camera case) D placed his finger on the P camera while shouting who gave you permission to take my picture? Held liable b/c camera is attached to Ps body Result would have been the same had the item been clothing, a book, an umbrella, or a package. Useful to ask whether P owns chattel or has had a long association with it i.e. student who bangs on teachers podium may have committed a battery

9 contact required for battery need not be brought by direct application of force to the P person or effect ex liability could be imposed if D strikes window so glass goes all over the P giving P poisonous food , D may be liable for battery f. Moore v. El Paso Chamber of Commerce (rodeo case) During Western Week, officials were taking people to their corrals to encourage them to buy rodeo tickets. Young man chased P into a glass door while attempting to catch her, liability for battery was imposed. The fact the girl failed to exercise care on her own behalf was irrelevant since, contributory negligence is not a defense to an intentional tort. Indirect contact may give rise to battery. A plaintiff does not have to be aware of the offensive touching at the moment it occurs This was not a case of employee/employer but they were acting as agents of the chamber, so respondeat superior. D. Assaulta. Elements P must prove i. Intent (purpose or knowledge) to cause apprehension of contact (or transferred intent) To determine whether apprehension is well grounded, the standard is whether apprehension would be aroused in the mind of a reasonable person, as least if the D does not intend to exploit the P known timidity ii. Present apparent ability to make cause contact This element means that for the assault to lie P must be aware of the D threatening conduct at the time it occurs D apparent , rather than actual, ability to carry through on threat that is important If the victim is aware of an imminent threat, but the perpetrator stops before the blow is struck, there is ONLY an assault, and NOT a battery Ex .there is no assault if P learns only long after the fact that D had previously pointed a gun at the P back Ex. If P knows D gun is not loaded then there is no assault (if firing is of course the only way to make contact) Ex. if P is too far to be hit by stones that D is throwing, then there is no action stated iii. A threatening gesture by the defendant (at least in most instances), and iv. Well grounded apprehension of imminent contact, unconsented contact b. Western Union Telegraph Co v. Hill (let me pet you case)-issue of apparent ability i. Ds employee verbally propositioned a woman who wanted to have her clock fixed. He told her to let him pet her.

10 ii. The court held that the issue of assault was properly submitted, because employee had ability to reach over the counter and grab the women so there was an apparent ability to make contact. iii. No respondeat superior b/c D was acting with the purpose of only satisfying himself and not to further the business conducts of the company. iv. Errors in the text of this case Every battery DOES NOT include an assault Ex A can stab B from the back and no assault because element of apprehension is missing Assault not necessarily an attempt to commit battery. D may only intend to create apprehension and need not to intend to inflict battery c. Words alone not enough to be assault, no matter how violent the language is. Threatening gesture in addition to words is ordinarily required b/c must be something to show a willingness on the part of the D to put words into action. i. Castiglione v. Gaplin D threatened to shoot workers who came to turn off his water. D had coupled the threatening utterance with the physical gesture of getting up and getting his gun, he was liable for committing an assault. ii. Under extraordinary circumstances, the facts may show that even in the absence of a threatening gesture there may be well grounded apprehension of imminent contact and thus an assault. Ex. if robber stands with his finger on the trigger on the gun and say to a person exiting a convenience store , your wallet or your life, little reason to release robber of liability iii. Sometimes verbal qualifications may prevent P from proving well grounded apprehension of imminent contact If you were 20 lbs heavier, I would knock you down d. Intent (purpose or knowledge) to cause apprehension of imminent contact (or transferred intent) i. Standard for Apprehension : Generally, what would be aroused in the mind of a reasonable person EXCEPTION: If the defendant exploits a known timidity or fear of the plaintiff ii. Standard for Imminent Contact: Whether the plaintiff expects contact to occur without substantial delay, unless evasive action is taken immediately. iii. There is apprehension of imminent contact if the P expects the contact to occur without substantial delay, unless vague action is taken iv. A threat to cause harm in the future is not assault, because harm is not imminent Ex. if a threatens to shoot B , and A has to leave the room to get the gun that is several miles away = no assault If A threatens to shoot B, and can reach a few inches to grab the weapon = assault

11 e. Plaintiffs courage in face of imminent contact does not absolve defendant of liability i. P does not have to have fear of harm (can be courageous to use self defense or be intimidated), only a apprehension (fear) of contact ii. S&F Corporation v. Daley (bar case) 2 patrons in a bar had been told that if they did not pay for drinks which they had not ordered , they would be beaten up by 2 large men who were sitting nearby b/c the victims of the extortion scheme had every reason to believe that the threat would be carried out promptly , an assault had been committed it made no difference whether the P could have successfully fended off the bouncers f. Sexual Advances i. Mere verbal soliciting of another to engage in sexual relations is NOT assault ii. Unwanted physical advance is a battery iii. Threat of unwanted physical advance is an assault g. Verbal qualifications attached to what otherwise would be a threat may not be assault i. Ex. If I were ten years older, Id beat your ass h. Conditional Threats i. Whether a conditional threat to commit a battery constitutes an assault depends upon whether the condition is one which the defendant is privileged to enforce through physical contact or a threat to inflict the same Ex. get right out of my house or I will shoot you dead = assault may lie Ex. I will give you one minute to leave my house. If you dont, I will put you out. = no action Difference b/w the previous statements is that there is a privilege to use physical force, but not deadly force One can only threaten use the degree of force that it would be permissible to use i. Damages for Assault i. Can recover compensatory for resulting physical illness ii. In absence of proof of harm , jury can give nominal to vindicate( maintain) the P legal right to be safe from apprehension of battery iii. Punitive may be recovered for egregious facts E. Tort of Outrage ( intentional or reckless infliction of severe emotional distress) a. Intent to cause emotional distress or recklessness with respect thereto b. Extreme and outrageous conduct Must be beyond all possible bounds of decency ; atrocious; utterly; intolerable in a civilized community Very demanding standard c. Causation d. Severe emotional distress i. **must prove with evidence ii. **so great that no person would willing to deal with e. What is emotional distress?

12 Fright & shock at the time of the accident (e.g. while the car was careening down the hill toward the P) i. Humiliation (e.g. due to disfigurement or disability) ii. Unhappiness and depression over inability to lead ones prior life (e.g. work, sports, sexual relations iii. Anxiety about the future (e.g. possible birth defects or cancer) iv. Anger (e.g. about unfairness of life, why did it have to happen to me? Compensation for tort of outrage i. Key Concerns: Genuineness of claim (some jurisdictions require proof injury) Scope of Liability ii. Compensation is available when Incidental to a personal injury tort (parasitic damages) Incidental to certain non-physical injury torts (e.g. defamation, assault) in 2 independent tort actions tort of outrage intentional or reckless inflictions of very severe emotional distress negligent infliction of emotional distress Slocum v. Food Fair Stores of Florida(you stink to me case) i. woman told by a grocery clerk, If you want to know the price, youll have to find out the best way you can, you stink to me ii. P was not permitted to recover for tort of outrage, even though she suffered mental anguish which resulted in a heart attack. iii. Insulting words, even if profane, almost never constitute extreme and outrageous conduct. Exceptions to rule that abusive language is generally not actionable First exception: common carriers , businesses that transport goods or messages for a fee, utilities, and innkeepers are held to a higher standards not all potential P can get the benefit of the rule, it only applies to those are using the business for the purpose for which they are offered to the public public is still expected to be hardened to some rudeness and condition of P must be taken into account Lipman v. Atlantic Coast Line Railroad a. Liability was found where a train conductor called a pesky passenger a lunatic who belonged in an asylum and threatened to give the passenger 2 black eyes, the conductor were to come off duty Insult must be a gross one that would be highly offensive to a reasonable person 2nd exception if P is known to the D to be sensitive to distress if any time a D attempts to exploit the known sensitivity of another the law will be determined in its efforts to find a way to impose liability Harris v. Jones

f.

g.

h.

i.

13 i. GM supervisor viciously taunted the P b/c of a speech impediment which he had been afflicted with for many years. P testified that he was shaken up and felt like going into a hole and hiding. He had seen a physician, and had allegedly suffered heightened nervousness and aggravated speech problems. ii. Court said P testimony was vague and at best weak recovery. iii. No evidence of intensity and duration of the emotional distress. iv. Needed to show that his stutter was more noticeable, and that the harassment affected the P ability to work, and the P showed visible signs of increased nervousness. Even more important is need for increased medical attention and stronger medication should have been played up more. P states that he saw a doctor but he had been under a doctors care for several years and there was no indication that the frequency of visits had increased v. Court recognized Jones actions were cruel but, there was no severe emotional distress j. In regards to solicitation of sexual favors it has been said that there is no harm in asking but if there is repetition, constant hounding, or indecent exposure, or any other aggravating circumstances then there could be an action for outrage k. Bystanders & Third Parties i. A person can have cause for emotional distress suffered as a result of witnessing or later learning about outrageous conduct toward another but ONLY IN LIMITED CIRCUMSTANCES ii. Key Question whether the D intended (purpose or knowledge substantial certainty) to inflict or was recklessly indifferent to inflicting emotional distress on the P iii. Intent Purpose- if another person is seriously harmed for the purpose of causing the P emotional distress, establishing liability is easy Knowledge- if a person is physically harmed when the P is known to be present, it might reasonably be said that the D was substantially certain that he P would suffer emotional distress and should be held responsible Recovery limited for emotional harm to bystanders who are close family members and who perceive the event These situations are similar with the law of negligent infliction of emotional distress a. Many jurisdictions recognize a claim for law of negligent infliction if 1)a family member 2)in close proximity 3) witnesses the death or serious physical injury of a loved one nd 2 restatement allowed the possibility of recovery by non-family members Ex. If teacher is shot in front of her students then possibly recovery If A (bystander) sees B and C arguing and B pulls pistol and threatens to kill C. B knows that A is pregnant , and that it highly probable that his conduct

14 will cause severe emotional distress to A, and then A suffers miscarriage. B is liable. iv. Recklessness Recklessness consists of conscious indifference to a known risk of serious harm 3 elements are a. 1) conduct complained of must have been reckless b. 2) the conduct must have been so outrageous that it is not tolerated by civilized society c. 3) conduct must have caused serious mental injury Damages Some courts hold that tort of outrage will support an award of punitive damages and some say that the outrageous conduct of the D forms the basis of the action and an award of compensatory is sufficiently punitive prima facie case P need NOT allege that D reckless misconduct was directed at a specific person or that it had occurred in P presence Taylor v Vallelunga (dad getting beat up ) o Young girl sees dad getting beat up and suffers distress o Man not liable b/c he didnt know of her presence or that dad even had a daughter o Knowledge of presence is necessary to render the D conduct; o recklessness as well as intent will suffice to whether the P could suffer emotional distress Some cases support the view that neither presence nor knowledge of presence are essential if the nature of the D conduct or relationship b/w victim and P establish a high probability that P would suffer a. Ex. Parents were permitted to recover when their 5 yr old daughter was molested by a teenage babysitter b. Ex. Women recovered when outside of her presence the D carried out a threat he had previously made to kill her husband c. severe emotional distress was substantially certain to result or that the D was at least reckless d. case against a church by children sexually molested by priest ,the court found reckless infliction of emotional distress was stated with regard to the churchs alleged failure to prevent foreseeable emotional harm from occurring e. Court held that the threat of harm need not be directed at a specific individual but merely against the class of children of which the P were members Constitutional Restrictions: Conduct that would otherwise be tortuous may be protected under the free-speech or free exercise of religion clauses of the First Amendment.

15 Hustler Magazine v. Jerry Falwell: The court invalidated Falwells tort of outrage suit because to hold defendants caricature was an opinion protected by the 1st Amendment. Constitutional restricts on religion a. Constitutional guarantee of free exercise of religion sometimes means that an outrage claim will fail 1. Ex. Holding that excommunication is a religious matter and claims of defamation and tort out outrage were not subject to judicial review 2. Not the case in all situations (ex. Holding church liable when a bishop told a child who was abused that if the abuse was reported to a child protective services that the child rather than her step father would be the cause of her familys break up and would be the center of church gossip Alienation of Affection /Criminal Conversation If a case in substance is a claim for criminal conversation then barred from tort of outrage At common law an action for alienation of affections would lie if wrongful conduct of a 3rd party caused one spouse to lose the affection or consortium of the other spouse Action still recognized in a few states rd 3 restatement without any supporting case law says that the concept of transferred intent applies to the tort of outrage a. Ex. If terroristic phone message is accidentally received by 3rd person, then an outrage action may be constructed by using transferred intent b. But a better way to put it would be that the D acted with reckless indifference to the interests of the class of persons of which the P is a member F. False Imprisonment (FI) a. Elements for prima facie case i. Intent (purpose or knowledge) to confine ii. Unconsented detention within boundaries fixed by the D , without reasonable exit apparent iii. By unreasonable force , threat of force, or assertion of legal authority iv. Harm to the plaintiff AND/OR Knowledge by the plaintiff of the confinement Intent to confine a. intentional tort so D conduct negligent/reckless, then NO action will lie ex. Janitor carelessly locking law library and students are confined = NO ACTION FOR FI, but they can bring up negligence or recklessness, but must prove damages b. Transferred Intent applies False Imprisonment v. a.

16 Unconsented Intentional Confinement Within Boundaries Boundaries May be large or even mobile Ex. P coerced into remaining w/in boundaries of a city by unlawful assertion of legal authority Ex. P detained in speeding car when driver refuses to stop until P yields to sexual advances Ex. P being forced to follow because D has effectively confined someone within boundaries Sometimes area of confinement large (country ) just turns into merely exclusion from another in which case action cant be alleged Action must be complete, not partial NO action if D obstructs P travel in one direction if the P is otherwise free to go Bird v. Jones ( man hops fence case) P climbed over a fence into a portion of the highway which had been enclosed for spectators of a boat race. The P was stopped from traveling further in the same direction, but allowed to return from where he came( REASONABLE EXIT) court held no FI , stating more required than mere loss of freedom to go where one wishes THERE MUST BE DETENTION WITHIN FIXED BOUNDARIES not complete when there is a REASONABLE EXIT Exit is not reasonable if there is a likelihood of harm to the P or P property , or to the person and property of others or if it would be offensive to an ordinary persons sense of dignity Ex. P whose clothes were stolen could escape by walking naked through lobby confinement complete person forcibly handcuffed to another individual could negotiate every moment only by bargaining with the other-confinement complete Reasonable may depend upon the facts as well -reasonable for young athlete to climb out of a window with a sill that is only 5 ft above ground vs. an 80 yr old woman some courts have held that if the only available means of escape is likely to cause physical harm to the P , and the P could safely remain imprisoned, there can be no recovery for injuries that are suffered in making an escape - P can only recover for confinement and not for extent to which damages were aggravated by unreasonable escape -avoidable-consequences rule- party may not recover for injuries which might have been avoided by reasonable post-accident conduct Retention of property FI may result from the D exercise of control over the P property if the P elects to remain with the property Ex. Holding ones car and car keys to prevent one from leaving a teen lock-in; retention of a womans purse to keep her from leaving

17 Sometimes not always action for FI Ex. P remained with repoed car before leaving D premises Ex. D sequestered P car for 3 hours to coerce payment of a disputed debt , no FI b/c P had control of the situation Consent will bar an action for FI Forced to Follow does not bar an action of FI o Must be forced or threatened by force, or compelled by legal authority Unlawful Force, Threat of Force, or Assertion of Legal Authority confinement must be INVOLUNTARY If caused by use of physical force or by an expressed implied threat of the same, whether against the P or a family member , the confinement will be actionable Confinement has resulted from the D retention of the P property Some DEGREE OF IMMINENCY is required in cases where FI is accomplished by a threat Ex. If P remains in a room after the D sys if you leave, I will shoot you next week then no FI b/c threat is future harm Morales v. Lee (mean evil boss case) Court ruled -No FI b/c D had threatened to the call the police & and have P arrested unless she stayed in office& Future threat of force does NOT count Dissent said that a threat to call cops may be accompanied by to her words or acts which indicate that the speaker will resort to imminent force if necessary to enforce a demand. Also said that other factors such as age, sex and relative size of parties could add to the intimidation If the plaintiff felt confined because of a tort of assault, that question will be left to the jury If confinement is to be accomplished by physical force all that is needed is that the D has the ability to apply force if P escapes. If P knows that D cant carry out threat, then no FI Ex. P knows D gun inoperable or unloaded NO FI Faniel v. Chesapeake & Potomac Telephone Co (D.C 1979) Case where P failed to prove that confinement was involuntary Women, who had taken a company phone to her house, accompanied her supervisors to her home to recover the phone during work hours. Nobody told her that she would lose her job or would otherwise be penalized if she refused to cooperate. She just assumed she had to go. Court held no wrongful detention b/c P went voluntarily Submission to verbal discretion that has no force or threats attached to it , is not FI

18 Moral pressure and economic coercion are normally insufficient predicates for FI (ex. Faniel) Knowledge of confinement or harm P knowledge of confinement may be proved by direct evidence (e.g. testimony by the P ) or circumstantially (through testimony of others) Parvi v. City of Kingston -1977 Cops picked up drunk P & took him to abandoned golf course, not fatal to the P case that he had no recollection of the incident. P permitted to rely upon the testimony of the cops to prove that he was aware of and had objected to his confinement in the car Some states embrace Restatement position that even if there is absence of knowledge of confinement, there is liability if confinement results in harm to the P Ex. P in a coma and placed in storage vault , deprived of care for 2 days action for FI may lie False Arrest variety of FI when one is taken into custody by a person does not have proper legal authority Enright v. Groves (Colorado, 1977) Cop took P into custody after she had refused to produce her DL Court found assertion of authority was unlawful, for there was no statute or decision in the jurisdiction which imposed on P a duty to produce DL under the circumstances in question No difference cop might have arrested P for violation of municipal lease law or that she was convicted of violation, because cop did not arrest her for that basis Civilian who unlawfully asserts legal authority be liable for FI also Ex. Train conductor tells accident victim law requires victim to stay at the scene to fill out a report, conductor (and probably employer respondeat superior) will be subject to an action for damages Private individuals may conduct a citizens arrest of a person who has committed a misdemeanor only if the crime was committed in the individuals presence and involved a breach of peace Johnson v. Barnes & Nobles sales clerk allegedly touched inappropriately by customer called other personnel who then detained the customer for more than an hour Court held store liable for FI b/c alleged misdemeanor was not committeed in presence of personnel who detained the P & there was no imminent threat of a breach of peace Malicious Prosecution Distinguished Privilege to disclose useful info to law but no privilege to give false info confinement which is voluntary and privileged can become involuntary and unprivileged Ex. Yacht must allow a guest to leave

19 Ex. Jailer must release prisoner at the end of their term Defenses to FI Peterson v. Sorlien (cult child case) adult child had allegedly been brainwashed by a cult, parents forcibly abducted their child to deprogram her confinement was initially non-consensual it matured to a point where the girl for several days consented to confinement by failing to avail herself of numerous opportunities to escape. prior period of consent constituted a waiver of the earlier forced detention and barred liability for false imprisonment. Court also state that the limitations upon the childs mobility did not constitute meaningful deprivations of personal liberty. 1st few days child lacked the capacity to consent or not consent , therefore the confinement was not unconsented 2 friends of D were held liable for tort of outrage C. Trespass to Land (Quare Clausum Fregit) wherefore he broke the close trespass to land protects possessors interest in exclusive possession of real property Direct invasion Ex unauthorized shortcut across P lot Indirect invasions Throwing trash onto property without personally crossing boundary are also actionable Failing to leave after have been asked If Trespasser causes no harm, nominal damages will be awarded to the P exclusive possession of the land. Elements to a prima facie case Intent (purpose or knowledge) on the part of the D to be present & without consent; Uncommented physical presence on , under, or above the land of another state of mind necessary -merely intent to be present at the place in question reasonable & honest mistake irrelevant to a prima facie case , except if the mistake is induced by P EXCEPTION: Privilege such as public or private necessity Acton only maintained by possessor of land-components of owner One who is in occupancy doing those things which manifest to the world a claim of exclusive control or If no one is present, one who last ceased occupancy without intent to abandon or If neither (A) or (b) apply then the one who has the right as against all other persons to immediate occupancy Tort of Nuisance : Considered in tandem with trespass q.v.c., is an action which protects the possessor from non-trespassory interference with the use or enjoyment of land

20 Examples: constant loud noise, toxic odors from anothers property, extreme bright lights, violations of municipal zoning ordinances D. Trespass to Chattels & Conversion -Intentional exercise of dominion or control over anothers personal property may give rise to an action for conversion or for trespass to chattels (de bonis asportatis-carrying goods away Minor Damages actual diminution in value caused by interference Elements of Prima Facie case for Trespass to Chattels 1) Intent (purpose of knowledge) to affect the chattel Good motive are no defense and while a mistake of fact or law not preclude a finding of intent , mistake may only bear upon whether the actor can establish a privilege 2) Minor interference with the Ps possessory interest and one who commits a trespass to chattels is subject to liability to the possessor of the chattel if, but only if; Dispossession Use; or Intermeddling(meaning physical contact) 3) In the absence of dispossession (from which damages may be inferred) , proof of damage in the form of a) substantial loss of use ; or b)impairment of condition quality or value damages must be proved Dispossession intentionally committed by Taking w/out consent (e.g. shoplifting) Obtained by fraud or duress ( e.g. buying a watch with a bad check or taking a purse at gunpoint ) Barring access ( e.g. refusing entry to a storage warehouse or changing the lock of the plaintiffs office Completely destroying (e.g. setting backpack on fire) Taking into the custody of the law (e.g. impounding an automobile) Glidden v. Szybiak (trespassing on doggie case) girl bitten while playing w/dog and pulling it ears. recovery for childs injuries was barred if injuries sustained in the course of committing a trespass or other tort girls intermeddling with dog not trespass to chattels b/c dog not injured When no dispossession, cause of action will not lie for jut a momentary loss of use Must be a SUBSTANTIAL INTERFERENCE ex. X moves Ys car for a few feet while, no dispossession , just momentary loss, no cause of action If X moves the car around the corner or to distant parking lot and it takes Y an entire hour to find his car=actionable trespass

21 CompuServe Inc v. Cyber Promotions D sent unsolicited e-mail advertisements internet users, who were customers of Ps online computer service, regardless of repeated demands by P to cease activities. D conduct constituted a trespass to chattels because, even though it did not physically damage P equipment, diminished equipments value by demanding disk space & draining processing power. D conduct harmed Ps legally protected interest in its relationships with its customers, for many had objected to receiving unsolicited emails a. Conversion i. serious interference is conversion ii. seriously interferes with right of another required to pay the other the full value of the chattel iii. Factors to determine seriousness of interference w/personal property 1.Extent and duration of the actors exercise of dominion and control (how long?) 2.The actors intent to assert a right inconsistent with Ps right of control (did D intend to keep hat knowing it belonged to P? 3.Actors good faith (was D reasonably mistaken in taking hat when leaving restaurant) 4.extent and duration of resulting interference (was hat quickly returned to original location?) 5. Harm done to chattel (hat soiled by D or still in same condition?) 6. Inconvenience and expense caused to other (Did P search the hat long time? Was securing replacement difficult? iv. Zaslow v Kroenert b. Court rejected Ps argument that Ds removal & placing of Ps furniture into storage was conversion c. Ds asserted no claim of ownership & warned P in advance of proposed course of action & had furnished notice of new location and how goods might be claimed d. Conduct at most constituted a claim for trespass to chattels , e. If P was not informed of new location of furniture or had been stored at great distance or destroyed by accident, case might have turned out differently EXCEPTION: If defendant refuses demand initially in to verify P right to chattel, not liable Ex. Lost and found at a department store or restaurant Thieves, Defrauders, and Bona Fide Purchasers o Thief liable for conversion o also finder of goods who intends to exercise dominion o Defrauder (bad check artist)-may also be held liable Even though voidable title passed when goods are delivered in exchange for bad check, P may exercise equitable rights to rescind transactions and sue for wrongful taking as if consent never given Bona Fide Purchaser

22 o No title if purchase from thief, even if in good faith and pays full value b/chave void title , o BFP may be held liable for conversion o BFP who buys goods from person w/voidable title =not liable for conversion o Purchase from a defrauder with notice of the prior fraud is not a bona fide purchaser may be held liable for conversion. o Bailees & Conversion o Bailees temporary holders of bailors property & required to inquire into title of items delivered. o Bailee liable for conversion Receiving with notice Re-delivering to bailor with notice of true owners claim Bailees remedy, when faced with adverse claims, is to deposit goods in court. Bailee NOT LIABLE FOR CONVERSION Receiving without notice Re-delivering without notice Re-delivering to the true owner o Russel-Vaughn Ford, Inc. v. Rouse Dealership would not return keys to Customer Amounted to Conversion Damages & Replevin Amount which a converter must pay the market value of the goods i.e. willing buyer would have paid a willing seller at the time of the conversion When good increases in value b/w time of conversion and time of trial---can be argued that P should be able to recover the value of the increase & D should not benefit from wrongdoing Majority view- allow highest intermediate value b/w the time of the conversion and the expiration of a reasonable time for making a replacement , assuming that replacement is possible If chattel has no market value b/c not saleable or if market value would not be adequate compensation, then may be recovery of its value to its possessor Sentimental Value ordinarily NOT compensated ---May apply more so in conjunction with tort of outrage against the converter This is b/c amount of damages might be totally disproportionate to the fault of the D Most states limit recovery for tortuous death of pet to animals market value, which is usually low so not worth it Few states have enacted statutes in certain types of case permit limited recovery of damages for o of loss of companionship and affection of pet, o punitive damages , o Or compensation for things like emotional distress suffered by owners Evidence of the cost of repairs is admissible if the compensation is sought for damage to property b-to the extent that repairs do not exceed value of chattel before damage Replevin: recover possession of the chattel in specie (as it currently is) and to recover incidental damages

23 Ex. Art theft Owner may wish to recover the painting stolen and also sue for the damages caused by actors conversion. Conversion and Demand for Return converters possession wrongful= no demand for return required for tort to be complete o Ex. A steals bs purse o converter gets item legit = demand must be made before action lies e.g. bona fide purchaser demand made & refusal to surrender possession= conversion good faith qualified refusal for reasonable period of time is ok trying to determine if P really owns property so having to verify if D imposes wrongful conditions ,conversion is complete ex. Excessive charges What May Be Converted? o Intangible property o Tangible may be converted, o some courts say taking of intangible property is conversion only if property is of type that is customarily merged in , or identified with some document Ex. Stock certificates, sketches, computer programs, circulation lists, commercial instruments, money, literary manuscripts Recently, electronic computerized entry rather than paper document Kremen v. Cohen rd -3 person fraudulently induced a domain name registrar to cancel the plaintiffs registration of the name sex.com and transfer the name to him. -registrar was liable for conversion as was the third person b/c registrar gave away Ps intellectual property. -electronic database domain names with computers connected to the Internet satisfied that document requirement. Electronic form rather than ink was held to be irrelevant to conversion. Moore v. Regents of university of California Court refused to recognize cause of action for conversion of excised human tissue After removing cells from the Ps body , a doctor had used the tissue in lucrative medical research w/out Ps permission court held that the Ps interest were adequately protected by the law of informed consent and it would be unwise to extend the law of conversion to like situations, b/c it would chill medical research , which routinely depends upon free copying and distribution of cell lines

Chapter 3 Defense & Privileges

CONSENT Violenti Non Fit Injuria: To one who is willing, no wrong has been committed Consent: A total bar to liability to ALL TORTS; plaintiffs consent to an otherwise tortuous act negates the wrongful element of the defendants conduct and prevents the existence of a tort. Burden of Pleading and Proving: Burden of proving lack of consent rests with the plaintiff for all intentional torts EXCEPT Trespass to land (Ds burden)

24 Types of Consent (3): -Actual/Consent in Fact: Plaintiff is actually willing for the conduct to occur (not necessarily the consequences of the conduct). Is manifested by---Words Go ahead, hit me! -Affirmative action pointing to ones chest to indicate where to be hit -Silence or inaction under circumstances indicating willingness Ex. not objecting to romantic advances by ones companion Davies v. Butler (hazing case) o Initiation into a college drinking society involved 3 straight days of drinking o consent by one of the initiates would not bar an action for his death based on negligence or recklessness, although he voluntarily participated in initial stages of induction, drinking had continued to point where he completely lacked capacity to consent Apparent Consent: -consent based on appearances, that is objective manifestations Ps conduct reasonably leads another to believe that P has consented words, actions, or inactions OBrien v. Cunard S.S. Co.(vaccine case) 1. woman held up arm to be vaccinated was held by the court to have consented to what otherwise would have been a battery because there was nothing in her conduct to indicate a contrary intent. 2. Key to this finding was her participation, having obvious notice (she was standing in line watching others get a shot), and choosing to give her arm to the doctor. Apparent consent may arise from failure to object to a well established customary practice 1. Ex. Commonplace in locale to tap another on the shoulder No action will lie unless the P has provided reasonable notice of an intent not to abide by the custom Implied Consent: No consent at all; a legal fiction and policy determination created by the court that the stated invasion should not be actionable. -Medical emergencies A court may even reject Informed Consent -Good Samaritan cases Some courts recognize the rule as to medical emergencies, but reject the rubric of implied consent and speak simply in terms of a right to act in the face of emergent conditions Miller v. HCA, Inc. o Court held that hospital could provide emergency resuscitative treatment to premature newborn child without parental consent. o Court found that parents prior refusal to provide consent for resuscitation was irrelevant because the child could not be fully evaluated for medical treatment until birth, and therefore the parents earlier decision was not fully informed o @ moment of birth, emergency circumstances required immediate decision and no time to consult parents o The court held no liability for battery or negligence based on unauthorized resuscitation of the child.

25 Capacity to Consent: In cases involving actual or apparent consent, the individual must have capacity or ability to appreciate the nature, extent, and probable consequences of the decision. In absence of capacity, consent will NOT bar recovery. May Occur where: In extreme cases of drunkenness, or forced inebriation, the plaintiff may be held to lack capacity Youth Infancy Mental deficiency Old agedness Medical disability Consents Relationship to Assumption of the Risk: Volenti non fit injuria may arise in non-intentional torts; in these cases the principle is used as partial or full defense to carelessness in order to reduce or bar recovery. Scope of Consent **for consent to be effective, must be consent to conduct that actually occurs or to acts which are substantially similar to that kind of conduct or are reasonably implied** Ex. Consent to participate in a fist fight is not willingness to be beaten with brass knuckles Ex. One allows a friend to gather loose firewood on property does not mean that one consents to having live trees cut down Ex. If however the P permits another to remove goods from a ranch, the P may have agreed implicitly to allow the others servants to enter the land to assist in the task

Consent Based on Mistake If the P has acted under a misconception in granting, the consent is not valid o Common Law/Traditional View on Consent Based on Mistakes (still embraced by some courts) If the mistakes concerned Nature of the invasion -ex. Getting teeth fixed, but also getting raped Harm reasonably to be expected The facts that made the invasion harmful or offensive o Ex. If P eats a chocolate given to him by the D, and does not know the sweet contains poison, then the mistake concerns facts with make the action harmful and goes to the question of the extent of harm reasonably to be expected o b/c someone who eats chocolate expects to get fat not ill o consent is invalid, ONLY IF MISTAKE WAS KNOWN TO THE D ** This mistake was called fraud in the factum (or fraud in the essence) and the consent was vitiated (destroyed) only if the mistake was known to the defendant o If the mistake went to A collateral matter (Ps reason for consenting)

26 ** This mistake was called fraud in the inducement and was deemed irrelevant; the consent was valid o Ex. Gigolo consents to have sex with a woman in exchange for $ that turns out to be counterfeit, action for battery will be barred b/c gigolo was fully aware of the nature of the invasion and was mistaken only with regard to the collateral matter of the validity of the money , which was his reason for consenting Consent Based on Mistake/Modern View o Any mistake made by the P as to a material fact that is known to the D , destroys consent o De May v. Roberts o Famous cause-stands for the right to privacy o physician brought a young man without medical qualifications to the Ps home to assist him while the P gave birth o b/c the assistants lack of training was not disclosed, the court held that the womens consent to his presence and touching of her was invalid to bar a tort action o The plaintiff had argued that but for her mistake of fact that the assistant was a qualified medical assistant, she would not have consented to his presence o Explained by the modern view o Consent may also be destroyed if the D negligently causes the P to misunderstand relevant facts -Ex. Doctor negligently misdiagnoses a patients medical condition and provides incorrect information to the patient, the patients consent to treatment will not bar a tort action , (if the mistake is an important one)

If the D is unaware of the Ps mistake and did not negligently provide misinformation, there is mutual mistake If mistake is mutual then the loss should fall on the party who made the mistake and if the mistake is mutual but not tortiously caused by the D =no good reason to hold that the D was not entitled to rely on the Ps manifestation of actual or apparent willingness o ** mutual mistake does not destroy consent** Consent and Duress: -Consent NOT effective if given under duress, - EXCEPTION: Courts are reluctant to except argument that consent is invalid as a result of economic duress -Ex. Giving consent to undergo a polygraph test in order to maintain ones job will not be allow a false imprisonment action Consent to a Criminal Act Some courts hold that consent to a criminal act is not valid to bar a tort action o Ex. If 2 people step outside to fight in criminal violations against assault and breach of peace , fight may support an award of tort damages because consent does not bar a tort action o Restatement says that consent to engage in criminal conduct is valid to a bar Fight in the streets may not be re-fought in courts

27 Hart v. Geysel Estate of the decedent was barred from bringing a wrongful death action by reason of the fact that the decedent had voluntarily participated in an illegal prize fight Hudson v. Craft o exception to view that treats consent to a criminal act as valid o If a statute is intended to protect the class of persons which the P is a member from the type of harm which occurred, the Ps consent will be invalid if there is a signification inequality between the parties o Here, the court held that youthful participant in an illegal boxing match could sue the promoter of the fight although the court expressed no opinion as to whether a suit could be maintained by the P against his opponent o In essence, court held that it was more important to deter those who organize fights than to fail to punish those whose break the law by participating in such activities o Had the suit been litigated b/w the 2 participants in the match both of whom fell in the protected class, consent likely have been valid bar to tort liability since pari delicto potior est condition defendentis (in equal guilt the position of the D is the stronger)

Privileges & Defenses Must be pleaded and proven by the defendant (affirmative defenses), and if they are not proven then they are not a part of the case. Defendant successfully carries burden of proof for his defense/privilege, tort liability will be precluded or at limited in amount. Ask: o Who may assert the privilege? o What belief is required? o What is the effect of a mistake of fact? o How much force can be used? o Are there special rules?

Self Defense Elements o anyone other than the aggressor o Who anticipates immediate physical harm o May use reasonable force in self-defense A reasonable mistake as to the necessity or degree of force required does not destroy the privilege Use of deadly force is justified only by a threat of deadly force, and retreat may be required Person must reasonably believe that force is necessary to protect oneself from bodily harm and in determining what force is reasonable age , size, and relative strength of parties should be taken into consideration

28 @ common law , deadly force (i.e. force likely to cause death or serious bodily injury) may be used only to defend against deadly force

Silas v. Brown Man who was upset in the Ds parking lot, because mechanic did a bad job on his car wanted the D to rectify situation, but mechanic was not even the Ds employee Disparity in size of the parties, belligerence of the P, and the Ps physical abuse of the D , it was reasonable for the D to fear serious bodily injury at the hands of the P So, the shot which the D fired striking the P in the foot , did not give rise to tort liability Status of the aggressor may shift as a confrontation escalates. -If B, the victim of the initial unlawful attack responds by using excessive force, B is liable for the injuries the original aggressor sustained as a result of the unreasonable force. -The original aggressor may regain the right of self-defense by communicating to the plaintiff an intent to cease the attack; thus if A starts fight and B defends himself, but A says I quit and B continues punching, A can then use self-defense does not permit retaliation, once there is no longer a threat of continued harm , the privilege terminates Mere words, unaccompanied by a hostile act, do NOT justify self defense Insulting words may give rise to the closely related defense of consent 1. Ex. If person intends provocative words or actions to induce attack (e.g. you are the most disgraceful human specimen I have ever seen ! you couldnt hurt me if you tried, 2. They amount to a challenge to fight and as such constitute consent which will bar an action to an intentional tort

@ common law , question of retreat only arises in connection with deadly force and only if a retreat can be made with complete safety o Many cases once held that no duty to flee o Some decision have held that one under attack has a duty to retreat instead of using deadly force, if they can retreat with complete safety o Now this does not apply to one at home , or work castle principle Defense of Others Elements o Anyone o Who believes force is necessary to protect another o May use reasonable force to do so Split of authority as to whether a reasonable mistake destroys the privilege Some decisions discourage defense of others by holding that an intervener steps into the shoes of the ones being assisted ; if that person has no right of self defense; interveners conduct =NOT PRIVLEGED, despite what intervener believes Drabek v Sabley

29 D apprehended young boy who had been throwing snowballs at passing cars and who might have been expected to do so Judge wrote that it was unreasonable as a matter of law to drive the child miles to the police station after taking him into custody Court reasoned that there were less severe alternatives o Identifying child and taking him o the parents or just reporting child to the police Defense of Property Elements o 1) a possessor o 2)May use reasonable, non-deadly force to defend property A reasonable mistake as to the necessity or degree of force does not destroy the privilege Ex. if homeowner shoots burglar , reasonably believing that he is armed and poses a threat to the inhabitants of the house, there is no liability But a mistake as to whether the P is privileged to interfere with the possession destroys the privilege Ex. if homeowner shoots one who under the doctrine of private necessity is entitled to seek shelter from a storm, there is liability Public policy maybe to encourage care & inquiry before using violence Deadly force may never be use to repel threat against land or chattels, unless there is also a threat to the safety of the D and others A person cannot indirectly use force (for example by mechanical device) that which person is not permitted to do directly o Katko v. Briney(spring gun case) Ds rigged a spring-gun to protect an unoccupied farmhouse from break ins they were held liable to a trespasser who was injured by the gun, for deadly force may not be used if there is no threat to personal safety Issue here was simply whether the invasion was reasonably believed to pose a threat to persons, and did not matter whether there was a giving of notice of the intended use of the mechanical device. Here, the building was unoccupied and no threat to individuals Some courts hold that indirect types of deadly force can be used if there is a visible sign or visibility of the force such as seeing the vicious dog or barbed wire May be suggested in these cases that the principle in operation is really of volenti non fit injuria

A possessors privilege to eject a person from property is restricted in the sense that the possessor may not expose the person to unreasonable physical danger -Ex. ill dinner guest be placed in his sleigh and sent off helpless into the cold winter night Recapture of Chattels

30 Elements o 1) a possessor o 2) wrongfully dispossessed by fraud or force o 3) may use reasonable non-deadly force to recapture the chattel o 4) if there is prompt discovery and fresh pursuit o any mistake destroys the privilege no force is reasonable until a demand for return of the chattel has been made, unless such a demand would be ineffectual or dangerous deadly force MAY NEVER BE used to recapture chattels unless used to defend life or limbs but then we would be talking about self defense or defense of others dispossession has already been completed prior to initiation of efforts to retrieve the goods, the owner or possessor is cast in the role of an aggressor and all risk of loss due to mistake , whether reasonable or not, falls upon the party asserting the privilege unless the mistake is induced by the P Hodgeden v. Hubbard o P purchased stove on credit by making false representations as to his credit. D promptly discovered the fraud, quickly pursued the P, and did not initiate the use of deadly force, their recapture of chattel was privileged o Default on a conditional sale does not justify assertion of the recapture of privilege o A contract giving the seller the right to enter the buyers premises when they default to repossess the goods , will ordinarily permit only a peaceful non-forcible entry If peaceful entry is not enough to get the goods , the seller must resort to the law for redress A contractual provision authorizing forcible retaking wont usually fall in line with public policy Privilege to Detain for Investigation o Most jurisdictions have a common law/statutory privilege which permits shopkeepers o Shopkeepers privilege To detain temporarily; In or near their store; One reasonably suspected of theft; For purposes of reasonable investigation **reasonable mistake does not destroy the privilege **this investigation privilege may be invoked by non-shopkeepers -Ex. law professor may detain a student for a reasonable period to investigate if he believes that student stole a copy of the final exam If request to remain refused, reasonable force may be used to detain o Deadly force never permitted, unless self defense or defense of others o Period of time for investigation-short, but will vary depending upon factors as the value of the item, nature of the misconduct suspected, and difficult of consulting sources of information o Privilege only applies to investigation and not to coerce a confession, demanding of payments, arrest, or act in an unreasonable manner by publicly disgracing the customer

31 o Dillard Dept Stores v Silva Court held that failure of store personnel to accompany a suspect to his car to see whether he had a receipt as he maintained and instead using force to handcuff the suspect until police arrived , was unreasonable Store was liable for false imprisonment Public policy call for shopkeepers so they can have the option to retrieve their chattel Public and Private Necessity Public Necessity-if the class to be protected by the action is the public as a whole, or a substantial number of persons (complete privilege) o Elements 1) anyone is completely privileged 2) to use reasonable force 3) actually or apparently necessary 4) to avoid an imminent risk of greater harm 5) to the community or many persons A reasonable mistake does not destroy the privilege Some statutes and cases abrogate the general rule and require compensation No liability for damages inflicted

Private necessity Same as public necessity except; Action benefits only one or a few persons Actor is liable for actual losses If P resists the assertion of the privilege, the privilege becomes absolute and no further compensation is required by the D for harm reasonably inflicted thereafter if the act is for the benefit of the P , there is no liability at all o Ex. if D uses Ps scarf to bandage Ps own wounds, then no liability o Privilege of private necessity does not exist if actor knows that the person whose interest would be protected is unwilling for the conduct to occur Ex. a person can normally rush on land of another to rescue chattels from a burning building , there is no privilege to do so if the owner of the chattels expressly forbids such action **privilege is never greater than the necessity** Ex. firefighter who needs to ride an accident scene cannot forcibly take anothers car , if that person reasonably offers to drive him to the site immediately Action is privileged only if harm to be prevented is greater than harm to be incurred o Ex. landowner may not channel flood waters onto a neighbors property if they are likely to cause harm there equal to or greater than that which would be prevented on the landowners premise o Privilege of necessity does not only encompass invasion of land or interference with chattels, but under appropriate circumstances, use of reasonable force against a person

32 Ex. rescuer may knock out drowning swimmer senseless in order to bring the panicked swimmer to safety A privilege of public or private necessity is not dependent upon whether the action achieves the desired goal Surocco v. Geary-----------Public Necessity o Blowing up Ps house did not stop spread of large fire, but privilege of public necessity precluded a suit in tort o All required for the privilege to apply is action reasonably appears to be necessary o Although action here was taken by the mayor privilege of public necessity may be exercised by private citizens as well as by public officials

o Common law rule on public necessity may produce harsh results by forcing 1 person to bear the costs of actions that will benefit the entire community o This rule is out of touch with the current jurisprudence , which holds that losses should be spread broadly rather than allowed to fall on a single person Wegner v. Milwaukee Mutual Insurance Co o A city was required to reimburse a homeowner whose house had been destroyed by a police SWAT team in the course of apprehending a suspect o fairness & justice, the court found required than an innocent homeowner not be forced to bear the entire cost of a benefit conferred on the entire community o city was required to reimburse her o one whose interests are being invaded by another who is acting pursuant to a privilege of private necessity may not resist the assertion of privilege, and by doing so becomes liable for damages resulting from the resistanceno resistance, liable for damages o Ploof v. Putnam A landowner had cast adrift a boat which P, who was with his wife and kids, had attempted to tie up at his dock during a storm, and by doing so becomes liable for damages resulting from the resistance. Landowner was held liable for the consequent injuries and damages suffered by the occupants of the vessel Doctrine of Necessity o Vincent v. Lake Erie Transportation Co Damage caused to a dock owned by P by a ship owned by D that was moored there during a bad storm. The court held that defendant should compensate the plaintiff for the actual damage to dock caused by its ship, but the defendant was not liable for trespass because one who has private necessity is allowed privilege to enter upon possessors property to protect his own property. Trespasser on Land vs. One who is on land w/incomplete privilege 2nd one is entitled to be on the land and therefore the possessor of the land is under a duty to permit him to come and remain there and hence is not privileged to resist his entry

33 Where the possessor of the land resists such a privileged entry, the actors use of reasonable force to overcome such resistance to his entry or remaining on the land so long as the necessity continues is completely privileged o Ex. if the P in Ploof had used reasonable force against the person of the landowner to avoid being cast adrift , the P would not have been liable for damages caused as part of the effort

Issue of resisting a privilege shades into the question of whether privilege exists in the first instance o Depue v. Flatau Dinner guest was privileged to stay in the hosts home after he became ill If the guests presence had seriously endangered the personal safety of those on the premises, it is reasonable the court would have held that the guest could have been forced to leave

Recapture of Goods on the Land of Another Aside from the privilege to recapture chattels , at least 3 other rules govern the right of a possessor to retrieve goods from the land of another o 1) if the goods came upon the land through wrongful conduct of the landowner, or w/the landowners knowledge of wrongful conduct by the 3rd person Ex. either X or Xs child stole the bicycle in question **possessor can enter at reasonable time, reasonable manner, and may use reasonable force to recover the goods , even in the absence of fresh pursuit Privilege is complete and the person asserting the privilege is not subject to liability for damages o 2)if the goods came upon the land through a force o nature Ex. Ys cat strayed on the land or Zs chattel was washed there by flood, or wrongfully placed there by a 3rd person w/out landowners knowledge or consent There is a privilege in the nature of private necessity allowing the possessor to enter upon the land to retrieve the goods Person here will be liable for actual damages 3) if the goods came upon the land of another with the consent or through the fault of their possessor Ex. baseball flew into the yard after the children were warned repeatedly not to play ball near the property No privilege to enter to retrieve the chattel and an effort to do so will be actionable as trespass

Recapture of Land Small amount of jurisdictions allow one who has a legal right to immediate possession of land to attempt to retake possession by reasonable non deadly force, but a growing number of states hold only peaceful means work Otherwise if no peaceful, must resort to the law o States make speedy and inexpensive remedy for forcible entry and detainer

34 Unlawful Conduct Ordinarily P is not barred from recovery merely because he or she was committing a tort or a crime at the time of the injury (restatement 2nd of torts, 229) However, under limited circumstances, some courts hold that recovery is barred if the Ps injury is o 1) a direct result o 2) of knowing participation o 3)in a serious criminal act o 4) involving prohibited (not merely regulated) conduct o Barker v. Kallash A 15 year old boy who was injured while constructing a pipe bomb was precluded from recovering from a nine-year old boy who had supplied the gunpowder if harm is a direct result of his own illegal conduct of a serious nature involving the risk of physical harm, then one is barred from any recovery not all forms of illegal activity will preclude an action for tort o Katko An action for injuries caused by a spring-gun was permitted, even though the P was a trespasser, Enright A woman failed to give her driver license to a police officer was allowed to sue for false arrest, even though she was later convicted of being in violation of the lease law at the time the tort occurred in some states , there is legislation which under certain circumstances will bar a person from recovering from injuries sustained while committing a felony or while operating a vehicle under the influence of alcohol/drugs Privileges to Discipline or Arrest parents are privileged to use reasonable force to discipline their children teachers- there are highly statutory and regulations that cover how much force they can use common law rules governing the privilege to arrest w/out a warrant have been modified extensively by statute privilege to arrest is more likely to exist if the crime is serious, the person making the arrest observed the crime, and there is a continuing threat of breach of peace

General Justification Sindle v. New York City Transit Authority o School bus driver was charged with false imprisonment. He asserted that he was privileged to drive the children to the police station when some of them engaged in repeated acts of vandalism despite requests to desist

35 o Court agreed that the bus driver was entrusted with the care of his student-passengers and custody of public property , and he had the duty to take reasonable measures for the safety and protection of both o Court held in determining the existence of privilege that it was appropriate to take into account (these similar factors will be relevant in other situations also) The need for the defendant to protect persons and property The Ds duty to aid in apprehending wrongdoers The manner and place of the occurrence ;and The feasibility of other alternative courses of action

Chapter 4 Damages
Jury Instructions on Damages o Likely action of a tort action is monetary, sometimes maybe injunctions o If the case is tried to a jury, the judge will instruct the jurors that if they find that the defendant is liable, they may determine the amount of money the plaintiff will receive. o The judge will tell the jury what types of compensation is available for the tort action being brought

Elements to consider when determining damage Past physical and mental pain Future physical and mental pain Future medical expenses Loss of earning capacity Approx. # of years worked, deduction of interest to be earned, and inflation buffer Permanent disability and disfigurement Hedonic damages loss of ability to engage in once enjoyable activities

If necessary judge will also instruct if there are no damages, then nominal award will be made as well as whether punitive damages may be assessed DAMAGES MUST BE PROVEN IN EVERY CASE -Plaintiff carries the burden of proving each of the elements of the tort, and that damages were caused by defendants conduct **An objection to the jury instructions may NOT be raised at appeal, UNLESS the error was first called to the attention of the trial court Remittur and Additur If the award is against the weight of the evidence, judge may order remittitur (giving P option of accepting a reduced amount or being relegated to a new trial)

36 o Reduced amount is determined under the maximum recovery rule , pursuant to which the amount offered to the P is equivalent to the highest award the jury would have been justified in making o Absent consent to remitter the court lacks authority to just decrease a jury awards o Anderson v. Sears Denied a motion for remitur because it found that a $2 million award to a seriously burned infant girl was less than the highest possible award supported by evidence Additur granted in cases of excessively low verdicts Gives the D the option of agreeing to pay a higher mount than awarded by the jury or being subject to a new trial on the question of damages Federal courts cannot use additur because the practice has been held to violate the right to a jury trial under the 7th amendment. This is also unavailable in some states Pain & Suffering some states allow per diem arguments o Counsel reduces discomfort to small units, such as minutes, hours, days ; sets value on each unit and argues that the jury should arrive at a total award by multiplying the unit value by the # of units of the time that the suffering may be expected to continue Ex. a penny a minute, a dollar an hour, ten dollars a day) Sometimes these figures can give rise to a large amount , a small amount of courts refuse to allow per diem arguments b/c they say theyre misleading Some courts consider awards in similar cases Use of video evidence is increasingly common o A) day in the life films o B) video settlement brochures o Some jurisdictions have statutorily limited the amount of money that may be recovered for pain and suffering These types of reforms have been under constitutional attack Fein v. Permanente Medical Group A California law which capped non-economic damages at $250,000 was upheld despite a constitutional challenge brought on equal protection and due process grounds Hedonic Damages o Hedonic damages-award for the Ps loss of the ability to engage in enjoyable activities ,such as sports, travel, and even sexual relations o Today many jurisdictions recognize the compensability of hedonic damages o some states reject the idea that loss of lifes pleasures are a separate category of damages Loss of Consortium o Provides Compensation for Expenses and Lost Companionship and Affection

37 o To a spouse ( in all states) o To parents (in many states) o To children (in few states) o To siblings (in a few states) o To grandparents in loco parentis (in one state) o To unmarried cohabitants (in one state) o consortium- a spouses legal right to the company , affection, and service of the other spouse o damages for L.O.C include medical expenses paid by the P for the injured spouse, the costs of hiring someone to do the work an injured spouse cannot do (either temporarily or permanently ) , and in cases involving serious injuries, compensation for the loss of companionship and affection of the Ps spouse ( sexual and otherwise) o ex. you must prove that you are missing something lazy father who does not work o one spouses action for LOC is an action different from the others spouses action for his or her own injuries o In nearly all the action for LOC must be tried together with the principal action o Defenses such as contributory negligence , will in most states have effect on loss of consortium as well Ex. wifes action for LOC may be limited or precluded by her husbands comparative negligence Many jurisdictions allow the parents of injured children to recover for financial losses, principally medical expenses Some states parents are able to recover for the childs companionship as well Medical Monitoring recovery of the cost of future periodic medical treatments intended to facilitate the early detection and treatment of diseases caused by exposure to toxic substances.

-In determining the reasonableness and necessity of monitoring consider: -significance and extent of Ps exposure - toxicity of the chemicals; Relative increase in the chance of onset of the disease compared to The Ps chances without exposure; and The chances of the members of the public at large of developing the disease; The seriousness of the disease; and Clinical value of early detection & diagnosis Meyer ex rel. Coplin v. Fluor Corp o Case involving pollution from a lead smelter, the court held that the class of children who lived in the area could recover medical monitoring damages even though they had not yet suffered a physical injury o Causation principle-very important to show that the Ds actions caused the damages to P o Other courts treat proof of physical harm as a pre-condition to recovery of medical monitoring damages

38 Credit monitoring Unauthorized access to a database containing computerized person information ) e.g. social security number, date of birth) can be analogized to toxic exposure b/c victim may be best served by early detection of whether his or her personal data is used to commit identity theft some courts have approved awards for credit monitoring damages Stollerwork o Court here stated that a claim for medical monitoring requires evidence of direct toxic exposure that by itself creates a big increased risk of later illness; o But here thieves would use the information only by taking further steps after stealing the severs and the risk they would so given the nature of the theft was low The Collateral-Source Rule Collateral source rule - Where the defendants liability is NOT reduced despite the plaintiff receiving compensation from a source wholly independent of the tortfeasor defendant. Rule has been extensively modified by statute in some areas o Ex. insurance company, taken care free of charge by hospital or neighbor o Public policy these amounts are the result of the Ps own hard work and they are a gift to the P , not the D o Heflend v. Southern California Rapid Transit District Ps medical expenses already paid by insurer, court held that he may recover the value of his damages from D effect of the collateral source rule had the effect of encouraging persons to look out for themselves by maintaining insurance and it served compensating the P for their expenditures on attorney fees No double recovery because Ps insurance company was subrogated to the Ps rights

The Avoidable-Consequences Rule o P has duty to mitigate damages through reasonable post accident conduct o P may not recover compensation for any aggravation of damages which could have been avoided by the exercise of reasonable care o In determining what is reasonable o Risk of the treatment needed o Probability of Success of the necessary treatment o Expense of the treatment o Effort (needed to obtain the treatment) o Pain to be caused to the plaintiff by the treatment o Zimmerman v. Ausland The question was whether the P could recover for an impairment in physical condition which could have been remedied by an operation Court said that in determining whether the Ps refusal to submit to the operation was unreasonable, it was appropriate to consider such matters as cost, risk of other harm, likelihood of success, and pain

39

R2T says post accident failure to mitigate damages is no bar unless Ps fault was as great as the Ds Negligent failure to mitigate damages is a defense to a claim for damages in a negligence action, but not in an action based on recklessness or intent Similarly, an intentional failure to mitigate is a bar to recovery in an intentional tort action Ex. if a trespasser intentionally left a gate open so that the cattle will escape the Ps award will be limited if the P intentionally failed to re-latch it (Let the cattle escape! Ill sue) someone who is careless is protected from intended or reckless consequences , but a person who stubbornly refuses to protect personal interests is given no redress for harm that could have been avoided Issues related to avoidable consequences rule are now resolve differently under the comparative fault statutes in many states o Ps failure to mitigate damages is treated as a form of fault that may reduce or preclude recovery in actions based on negligence, recklessness , or strict liability o Still carelessness on part of the P usually does not reduce the liability of an intentional tortfeasor Pre-Judgment Interest Traditionally, not allowed pre-judgment interest Many states have by statute or judicial decision modified this rule Public policy keep D from foot draggin by the risk of liability of pre-judgment interest , but depends on the rate of interest is computed

Survival Actions & Wrongful Death Actions Survival statutes o Allow a claim to survive the death of either party o If the P dies, the claim is prosecuted by the estate o Pain and suffering damages may be awarded if the decedent survives or dies immediately. -If the decedent survives for some time then dies, the court will look at the decedents suffering prior to death -If the decedent dies immediately, many courts will allow juries to give damages for preimpact terror o Wrongful Death Statutes o Permit a designated class of persons to recover for losses sustained as a result of the death of another Companionship and Society: Most states in wrongful death suits allow for the recovery for lost companionship, guidance, society, or advice. Statutes may allow for it expressly OR By interpretation of Actual or Pecuniary damages

40 Pecuniary Damages: damages that can be estimated and monetarily compensated. o pecuniary loss generally proceeds by determining the amount of support the decedent would have provided to the P but for the death Ex. a D who kills a surgeon or a partner in a law firm is likely to face a greater liability than the D who kills a low-income worker or an unemployed person Some courts allow a recovery for the loss of the inheritance the Ps would have received had the decedent lived longer and saved more

Grief many statues permit recovery for emotional grief or anguish o expressly or o by interpretation

Gonzalez v New York City Housing Authority o A wrongful-death award to the independent, adult grandchildren of a brutally murdered woman was affirmed o Grandchildren who had received meals, advice, and other forms of help from the grandmother who had raised them, were deemed to have suffered pecuniary injuries within the meaning of the statute o Jurys award of more than $1 million for wrongful death was reduced on appeal of $100,000 Loss of Earning Capacity o History of earnings is useful, but not essential o The probability of the Ps being employed (as affected by age, health, etc.) is taken into account o An award of lost past earnings may be enhanced by pre-judgment interest. o An award of lost future earnings is reduced to present value Present value-amount that it would take to purchase an annuity capable of generating the lost income or that would have to be invested at a given interest rate to do the same o Inflation should be taken into account in calculating both future earnings and the discount rate, or or left out of both calculations OShea Riverway Towing Co o Inflation should either be taken into account both in projecting future lost earnings and in discounting those losses to present value, or inflation should be left out of both calculations altogether P employed at a fixed wage at time of injury ordinarily may recover for lost earnings the amount of the fixed wages However if the P s employment was not conducive to exact compensation, or if the P was unemployed or if the Ps compensation reasonably would be expected to increase during the period of disability , recovery will be allowed of impairment of earning capacity Permanent injury- mortality tables introduced to aid the jury in its assessment of loss of future earnings
An award of compensatory damages in a personal injury case is not taxed. Taxation of the earnings on investment of a lump sum award can be avoided by a structured settlement.

o o

Taxation of Awards

41
In wrongful death cases in which damages are measured by the amount the decedent would have contributed to the survivors, courts usually admit evidence of the decedents tax liability on future earnings. Federal courts hold that juries should be instructed that damages for loss of future earnings are not subject to taxation. ***Some states differ.**

Punitive damages are income to the P who gets them , as are some compensatory damages in cases involving non-physical injuries , such as harm to reputation or emotional distress Can be taxable In re Air Crash Disaster Near Chicago The court held the failure to give such an instruction was an error which raised the possibility that the jury would inflate the award on the assumption that part of it would go to taxes Court also held that the evidence of decedents income tax status should have been admitted in the wrongful death statute measured damages by the amount the decedent would have contributed to the survivors; if the decedent had lived , he obviously could not given the survivors money that would have been taken by taxes

However, many states do not allow introduction in a wrongful death action of evidence relating to the decedents future tax states o Hoyal v. Pioneer Sand Co, Inc Court found that such evidence was inappropriate for purposes of calculating the survivors net pecuniary loss because future tax rates are a matter of speculation and allowing such evidence would unduly complicate tort lawsuits.
o P filed for a motion In Limine Limitation of how much evidence can be shown to the jury Is a motion made before or during a trial requesting that the judge rule that certain evidence may, or may not, be introduced to the jury in a trial.

Tex. Civ. Prac. & Rem Code 18.091 (2004) (a) not withstanding any other law, if any claimant seeks recovery for loss of earnings, loss of earning capacity, loss of contributions of a pecuniary value, or loss of inheritance, evidence to prove the loss must be presented in the form of a net loss after reduction for income tax payments or unpaid tax liability pursuant to any federal income tax law (b) if any claimant seeks recovery for loss of earnings, loss of earning capacity, loss of contributions of pecuniary value, or loss of in heritance , the court shall instruct the jury as to whether any recovery for compensatory damages sought by the claimant is subject to federal or state income taxes Assessment of Punitive Damages Intended to punish or to make an example and not for compensation May require clear and convincing proof Not available in some states absent compensatory damages Are insurable in some states May be limited in amount by statute Are never available for mere negligence May necessitate a bifurcated trial o Guilt phase and then punishment phase May be subject to partial forfeiture (remitter) Micari v. Mann

42 o Court recognized that punitive damages may be awarded if the alleged wrong is morally culpable or actuated by evil and reprehensible motives o It held that his standard was satisfied where a respected acting teacher exploited is position of trust by inducing his students to engage in various sexual acts to release their inhibitions and thus improve their acting skills o Court held that it had the power to require additur of punitive damages to a small compensatory damages for society has a major interest in ensuring that punitive damages are imposed for deterrence purposes in cases of flagrant conduct Punitive Damages Factors to consider for judge/jury Magnitude of risk Awareness of danger Duration of failure to act Compliance with regulations Purposeful creation of danger for P Need for deterrence Wealth of the D Gyrc v. Dayton- Hudson Corp A little girl was severely burned when her PJs caught fire Relevant factors in assessing punitive damages o Existence and magnitude of danger to the public o Cost or feasibility of reducing the danger o Manufacturers awareness of the danger, the magnitude of the danger, availability of feasible remedy o Nature and duration of , and the reasons for , the manufacturers failure to act appropriately to discover or reduce the danger o The extent to which the manufacturer purposefully created the danger o Extent to which the D is subject to federal safety regulation o Probability that compensatory damages might be awarded against D in other cases ; and o The amount of time which has passed since the actions sought to be deterred **There have been many constitutional challenges to awards of punitive damages ** Punitive Damages: Constitutional Due Process o Respondeat superior liability is permissible o may be grossly excessive depending o the reprehensibility of the conduct (egregious) o ratio between compensatory and punitive damages and; o the difference between the award and civil or criminal penalties for similar conduct Browning-Ferris Industries v. Kelco Disposal, Inc o A suit b/w private parties, the supreme court considered whether an award of punitive damages more than 100 times the size of a compensatory damages award was so large as to violate the Excessive Fines prohibition of the 8th amendment o Court concluded that the clause does not constrain an award of money damages in a civil suit when the government has neither prosecuted the action nor has any right to share in the damages awarded Pacific Mutual Life Insurance

43 -Supreme court held that punitive damages may be imposed on an employer under a respondeat superior theory without violating the due process requirements of the 14th amendment BMW of North America v. Gore Court overturned a $2 million punitive damage award to a car purchaser who had not been told about the pre-delivery damage and repair of the vehicle he purchased elementary notions of fairness require that person gets fair notice of the conduct that will subject him to punishment but also of the severity of the penalty that a state may impose 3 guideposts which indicate that BMW did not receive adequate notice of the magnitude of a possible punitive damages sanction led to the conclusion that the award was grossly excessive Gore Guideposts o Degree of reprehensibility (egregious) of the non disclosure o Disparity between the harm or potential harm suffered by the P and the punitive damages award o Difference between this remedy and the civil penalties authorized or imposed in comparable cases State Farm Mutual Automobile Insurance Co v. Campbell
Punitive damages cannot be based on: Conduct that was lawful where it occurred Conduct occurring outside the State Other dissimilar acts Hypothetical claims of third parties **A defendant should be punished for the conduct that harmed the plaintiff, not for being an unsavory individual or business. ** [F]ew awards exceeding a single-digit ratio will satisfy due process.... Nonetheless, there are no rigid benchmarks. Greater ratios may comport with due process where a particularly egregious act has resulted in only a small amount of economic damages. When compensatory damages are substantial, a lesser ration, perhaps only equal to compensatory damages, can reach the outermost limit of due process

Phillip Morris USA v. Williams o Jury made a large punitive damages award to the estate of a heavy smoker after the P argued that many other smokers had been killed by the Ds o In remanding case, supreme court made it clear that an award for damages may not be based in part, even in part, on a jurys desire to punish a D for harming non parties o Exxon Shipping v. Baker o A case arising from an Alaskan oil spill, the court held that under maritime law an award of punitive damages could not exceed the jurys award of 507.5 million in compensator o There is a split of authority as to whether an insurance contract term purporting to cover punitive damages is against public policy o Price v. Hartford Accident and Indemnity Co. o Court upheld the coverage here. o Arguments were made that the law should not allow irresponsible drivers to escape punishment and that permitting insurance would but the burden of punitive award onto the public at large o Court concluded that the insurance company was obligated to honor the clear language of the policy

44 o In any event, the D and other drivers would be adequately deterred from misconduct by fear of criminal liability, increased insurance premiums, and the risk that a punitive damages award would exceed insurance coverage limits. o Traditionally , full amount of punitive damages award has been paid to the prevailing party o Several states have enacted law requiring some portion of each punitive damages award to be paid to the state, either to the general fund or to a special fund dealing with rehabilitation, medical assistance, or compensation of injuries. o This has been subject to attacks stating that these were unconstitutional takings of private property o Has not produced lots of money , because most large punitive damages dont survive on appeal o Also, P and D can and do deprive a state of its shares by settling cases in which punitive awards are likely o Some states have enacted limits on the amount of punitive damages o Texas statute generally limits punitive damages , except in cases of certain felonies to the greater of 1) 2 times the amount of economic damages , plus an amount equal to any noneconomic damages found by the jury , not to exceed $750,000 or 2) 200,000 o Many states have also changed the burden of proof -In at least 1 state, punitive damages require proof beyond a reasonable doubt, in others clear and convincing proof Sometimes major obstacles to recovery of punitive damages o o o o Nebraska constitutional provision precludes an award of punitive damages Washington State similar rule applies as a result of an early judicial decision New Hampshire- punitive damages are not available unless expressly provided for by statute Connecticut- punitive damages may not exceed litigation expenses less taxable costs

o Federal tort claims act does not permit the federal government to be held liable for punitive damages o FDA defense prevents an award of punitive damages in a case where a seller of pharmaceuticals has marketed the product in conformity with FDA regulations and has not misrepresented information o Punitive Damages Statutory language o some states limit punitive damages awards to intentional acts of malice
o

E.g., Wis. Stat. Ann. 895.85 (2005): The plaintiff may receive punitive damages if evidence is submitted showing that the defendant acted maliciously toward the plaintiff or in an intentional disregard of the rights of the plaintiff. o Other states require only willful indifference, wanton or reckless conduct or gross negligence.

Chapter 5: Negligence, Basic Principles

45 o Negligence - conduct which poses an unreasonable risk of harm to others

o o o o Lack of care Not reasonable Requires INJURY NEEDED TO BRING SUIT Not actionable unless it involves the invasion of legally protected interest, the violation of right.

o Prossers 4 elements of negligence Plaintiff has to prove these o Duty o Breach o Causation o Damages Plaintiff has to PROVE ALL OF THEM Palsgraf Duty Rule: The risk that can be reasonably perceived defines the duty to be obeyed o One owes a DUTY of reasonable care to those who may be harmed by ones actions if that harm is foreseeable to the actor Palsgraf v. Long Island Railroad Here, railroad guards had attempted to boost a passenger safely on to a slowly moving train that he was running to catch. In the process a package was dislodged from the mans arms. It fell to the tracks and exploded. Question was whether a woman who was standing on the other end of the platform could recover from the railroad for the injuries she sustained when the shock of the explosion caused a scale to fall A duty runs only to those who are within foreseeable area of danger. And if there is a risk reasonably perceived to the P, there is a duty to be obeyed Nothing in this situation to suggest the most cautious mind that the parcel wrapped in newspaper would spread wreckage through the station William Andrews(dissent) o Offered the view of universal negligence o Said that everyone owes to the world at large the duty of refraining from those acts that may unreasonable threaten the safety others o Points out that even if there is a duty to the P, there are other questions that bear on the fairness of imposing liability o Would make that inquiry under the rubric of proximate causation and not duty ***The fact that there is a remote possibility of personal injury or property damage is ordinarily not enough. Nussbaum v. Lacopo Golf course case 1. The plaintiff, whose property abutted a golf course, was injured by the defendant when his tee shot struck the plaintiff. The golfer was not found liable. 2. The case illustrates the rule that a person cannot be expected to guard against harm for events which are so unlikely to occur that the risk, although foreseeable, would commonly be disregarded. Gulf Refining Co. v. Williams Bung Cap case 1. A spark caused by a defective bung cap on a gasoline drum which was supplied by the D started a fire which injured the plaintiff.

46 2. D argued there should be no liability when an occurrence is unusual, extraordinary, and improbable 3. Illustrates rule that Where the gravity of potential harm increases, the reasonable prudent person would take corrective action to avoid the small risk of serious harm. o Learned Hands Balancing Test: Conduct is negligent if the Burden of the prevention is outweighed by the gravity of the Loss times the Probability of the harm. B < L x P = NEGLIGENCE B > L x P = NO LIABILITY United States v. Carroll Towing Co. 1. A barge belonging to the plaintiff had broken away from its mooring because of the negligence of the defendants employees in moving the ropes. 2. As defense, D argued that the P was at fault in not having a bargee on board to take corrective action and that the damages should be reduced according to a comparative negligence rule in admiralty. 3. The court held that the plaintiff was contibutorily negligent in not having a watchman aboard to take corrective action and could not recover since the burden of having a watchman was low, but there was probability of great harm in such a busy wartime harbor. Known for Learned Hands test in this case. B < L x P

Utility v. Risk Balancing Test: Risk of harm may be balanced against the utility of the actors conduct taking measures to prevent the harm. 1. Utility: Social value of the interest to be advanced Likelihood of advancement of its Availability of alternatives: technical feasibility, economic and other costs, efficacy 2. Risk: Social value of the interest imperiled (made dangerous/harmful) Likelihood of harm Extent of harm Number of persons affected 3. Example: Chicago B&Q RR Co. v. Krayenbuhl (S. Ct. of NE, 1902) A 4 yr. old child was injured while playing inside an unlocked railroad turntable area. Court focused on the utility of the Ds conduct and on the availability of alternatives, held that while railroad turntables serve an important public interest, the use of a lock would have interfered only slightly with the pursuit of that goal and therefore the Ds conduct was negligent B < L x P 4. Davison v. Snohomish County Ps car broke through a wooden railing on an elevated approach to a bridge and plunged to the ground

47 The court in reversing a verdict for the Ps considered the financial and technical feasibility of other types of construction It found no practical alternative and therefore concluded there was no negligence B>LxP

Reasonable Person Standard o 4 ways to establish what a reasonable person would do Fact finder determination Fact finder focuses attention on the circumstances of single case, may determine on an ad hoc basis whether a particular defendant acted reasonably Court/jury may w/in limits define the conduct of the reasonably prudent person Circumstances must be taken into act o Ex. faced with emergency, blind, experienced relevant to determination Difficult because flexibility of the case-by-case approach allows the decision maker to take into account numerous factual variables that might be ignored by a more rigid rule of law Judge made standards Judicial decision If there is a problem of recurring nature, then the court as a matter of law can state what conduct is required of a person confronted with those circumstances Jury will be instructed if determines that D failed to take the required steps , it must find that the D acted unreasonably and breached its duty of care to the P This use will not work where the factors bearing upon the question of unreasonableness are too numerous or variable to adequately be taken into account by a hard and fast rule Legislatively determined standards Representatives of the pubic express in legislative body that failure to take certain actions will give rise to civil liability , courts recognize such expressions as defining the applicable level of care This is good method because , fair notice, uniformity of results, and allows judiciary to express appropriate deference for the determination of co-equal branch of government Judicially declared standards based on legislation Even if legislative enactment does not imply or expressly establish a standard of care, may define standard of care with reference to that legislative enactment if the court finds that legislation calls for appropriate behavior Similar to 2nd approach of judge made standards , because the in essence the court is not required to adopt the standard, but its exercising its law-giving prerogative to do so But differs from 2nd because it allows the court to draw upon the legislative history and vote underlying he enactment to support the reasonableness of its decision o Vaughan v. Menlove (1837)

48 o Improper location of hay rick led to a fire which destroyed the Ps cottages o Test here is the objective, reasonable person test o Not sufficient that Vaughan had tried to do his best o Good faith not good defense to preclude a finding of negligence liability o It is an error to tell jurors the question for determination is whether they as reasonable persons would have done differently, because the reasonable person is a hypothetical character o Reasonable person is merely reasonable and prudent, nothing more and nothing less o Facts that are generally known to all adults in the community are imputed to the reasonable person Ex. person who is from the city but is on vacation in the country , will be deemed to know that mules kick Jurys decision will be guided by instructions from the trial judge Ex. such as physical disability, mental deficiency) Some of these considerations are relevant to whether care has been exercised and others are not Some of these actually change the standard of care also Different Circumstances Are these relevant? Do they change the standard of care-no Physical handicap Mental deficiency Youth Agedness Superior skill, knowledge , or experience Gender emergency Emergencies Considerations a Jury May Take into Account (Do they change the standard of care?) 1. Emergencies: Does NOT change the standard of care, only a FACTOR on whether the person behaved reasonably in the emergency situation. 2. Young v. Clark Evidence showed that the emergency leading to a rear-end collisions was caused by the actions of an unknown driver several cars ahead B/c it could not be a matter of law that the D was traveling too close or too fast , D was able to have jury instructed on the subject of emergency
3. Sudden Emergency Doctrine Recognizes that a person confronted with sudden or unexpected circumstances calling for immediate action is not expected to exercise the judgment of one acting under normal conditions. No Fault of your own Emergency Reasonable person standard

4. EXCEPTIONS: A. When the actor creates his own emergency by his own actions, the Sudden Emergency Doctrine does NOT apply.

49 B. Competence may be considered in deciding if the doctrine should apply. C. Medical Emergencies typically allow volunteers to render aid at the scene but may be liable for conduct more blameworthy than ordinary negligence. D. even if entitled, might be found that D acted unreasonable -Swerving to the left into oncoming traffic to avoid an obstacle in the street some states dont use doctrine, feel it misleads the jury that actor should not be held to the standard of ordinary care certain situations , people are required to anticipate an emergency o ex. may be necessary to foresee that person who are ill or intoxicated may wander into places of danger o in general if risk is slight the reasonable person is free to proceed upon the assumption that other people will exercise proper care o but if the risk is a serious one , either because the threatened harm is great, or because there is a high likelihood that it will occur, reasonable care may demand precautions ex. when children are at hand it may be necessary to anticipate conduct one would not expect from adults , such as running into the street

Physical Disabilities Hill v. City of Glenwood o Addressed the question of whether a persons physical handicaps are relevant to the determination of whether that individual acted reasonable o In Hill a blind man had been injured in an accident on a public sidewalk o In regards to contributory negligence, court said that a blind person need not exercise a higher degree of care than a sighted person , but merely the ordinary care that would be exercised by a person who is blind o Handicap was a relevant circumstance but it did not change the standard of care

o Courts have normally refused to make any allowance for infirmities caused by intoxication of the ingestion of the alcohol was involuntary Religious Beliefs Williams v. Bright o Issue was whether the P had unreasonably failed to mitigate damages due to her religious beliefs as a Jehovahs witness which allegedly precluded her from having a knee operation because the procedure would require a blood transfusion o Court found that Ps religious beliefs were relevant to the issue of mitigation but not dispositive. o Jury instruction should be phrased in terms of what a reasonable prudent person would do not in terms of what a reasonable Jehovahs witness would do.

50 o This is not a final decision on the issue, just the way the court handled this particular case -Avoidable Consequences Rule: A party who claims to have suffered damages by the tort of another is bound to to use reasonable and proper efforts to make the damage as small as practicable, and if an injured party allows the damages to be unnecessarily enhanced, the incurred loss justly falls upon him. o Now seen as fault by the defendant in Comparative Fault Age Goss v. Allen o P was injured when she was struck by a 17 yr old 1st time skier o Court held children are normally to be judged by a special standard , whether their conduct measures up to the level of care that would be exercised under similar circumstances by a child of like, age, intelligence, and experience o Also in the case , there are some occasions where children will be judged by adult standards o Court held some activities engaged in by minors are so potentially hazardous as to require that the minor be held to an adult standard of care Gave ex. minor must be licensed and must first demonstrate requisite of adult competence. rd 3 restatement says child will be held to an adult standard of care, where the child is engaging in a dangerous activity that is characteristically undertaken by adults Maximum age to which childrens standard has been applied appears to be 17 , some courts apply a non adult standard only to children below 14 years of age minority of jurisdictions have embraced categories children above 14 assumption in favor of the childs capacity to commit negligence 7-14 against capacity Under 7 incapable of committing negligence **3rd restatement rejects minority approach, but says that less than 5 years old incapable of negligence

Mental Deficiency Most jurisdictions hold an actor who is mentally deficient, or temporarily or permanently insane, is normally not a relevant consideration in determining whether the actor behaved reasonable Mental deficiency or insanity is disregarded , and the person is liable for negligence unless the conduct measures up to that of a reasonable ,prudent, fully sane individual -EXCEPTIONS: Some jurisdictions hold that in cases of sudden, unexpected, temporary insanity should be regarded like other temporary medical emergencies like seizures, but this is a question of fact for jury. o Breunig v. American Family Insurance Co.

51 A woman believed that God was in control of her car and therefore accelerated it, thinking she could fly over an oncoming truck like Batman and injured P. Court holds that permanently insane people are liable for their torts, found that a different rule should apply in cases of unanticipated, sudden insanity for it is unjust to hold a man he is incapable of avoiding (unexpected insanity rule) There was evidence here to show that the D had reason to believe that hallucinations might occur that would affect her driving, the unexpected insanity rule was deemed in applicable and a judgment of liability was upheld A few courts hold that if one is unable to control ones actions (as opposed to unable to understand the nature and consequences of ones acts), liability may not be imposed, even if the deficiency in ability to control results from a condition of long standing Padula v. New York Court held that certified heroin addicts, who could not resist the temptation to get high , could not be held to have been contributorily negligent for having ingested a dangerous concoction made from duplicating fluid and a Tang Many jurisdictions hold that an actors mental deficiency is always relevant to the issue of contributory negligence. Question is not what degree of care an actor must exercise on behalf of others , but what degree of care a person must exercise for self-protection Issue is whether a negligent D should escape liability for a loss caused to a mentally deficient who was incapable of guarding against such harm rd 3 restatement provides now that the rule that a persons mental disabilities shall be disregarded applies to contributory negligence issues, as well as to issues of negligence

Superior Knowledge, Training, or Skill Professional Malpractice General rule o A person with superior, skill, or training or experience must exercise those abilities specialized profession (lawyer/doctor/engineer) that standard of care will be defined with reference to that group, and the actor will be found negligent for failing to perform with the degree of knowledge/training/skill possessed by an ordinary member of that profession in good standing. Public policy o consumer should depend upon a predicable level of performance from those with special expertise o utilize talent Standard of care for professionals is defined with reference to the ordinary rather than the average member of the profession Professionals who specialize (patent lawyers , gastroenterologists) are often held to a higher standard of care then general practitioners
greater experience does NOT change the standard of care Heath v. Swift Wings Inc. o Alleged negligence of a pilot whose plane had crashed

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o o Court erred by asking what degree of care would have been exercised by a pilot with the same experience as the pilot in question Rather the question of negligence must be a minimum standard generally applicable to all pilots

Legal Malpractice and Medical Malpractice Legal Malpractice An attorney implicitly represents that he or she: 1) Possesses the ordinary degree of learning, skill, and ability 2) Will exercise his or her best judgment 3) Will be diligent and careful in using professional skill and knowledge Generally, there is: 1) No liability for a mere error of judgment on which reasonable lawyers may differ 2) No guarantee of success An Attorney Implicitly Represents that He: -Possesses the ordinary degree of learning, skill, and ability -Will exercise his or her best judgment -Will be diligent and careful in exercising his professional skill and knowledge 1) Duty owed mainly to clients and former clients extends as far as the scope of representation standard of care is reasonableness and not good faith liability is imposed only if D o did not what no attorney could do OR o failed to do what every attorney must do specialists are held to a higher standard of care

Categories of Clients Attorney Could Owe Duty To (**duty extends as far as the scope of representation**) o Attorney owes a duty of care to anyone who becomes a client o Sometimes duty to former clients - confidentiality o Obligations of more limited nature extends to prospective clients who engage in preliminary discussions with attorneys with a view towards entering into an attorney-client relationship o Some courts hold that duty runs to 3rd party beneficiaries such as those who would benefit under a will or trust drafted by the attorney o Duty may also be owed to nonclients in special circumstances Those who may rely on documents provided by an attorney like opinion letters addressing tax questions or regulatory issues Expert testimony usually be required on the issue of whether a particular course of conduct is negligent Expert Witnesses o o o o Voluminous material Research of the law Normally paid by the hour Testimony is sometimes based on facts of the case, but sometimes on hypothetical cases

53
o o o o Independence vs. partisanship Consistency with prior statements Confidentiality Discoverability

Expert Witnesses: Effectiveness o o o o Competing versions on the facts o E.g. whether an AC rel existed Intellectual honesty Testimony on Causation and Damages Ethics Rules Reliance on Awareness of Departure from Expert Witness malpractice Expert witnesss Reference is usually state or federal Expert must not say what he would have done, but that it was negligent for the D to do what he has done Boyce v. Brown o P alleged that it was negligent for the D physician to fail to take an x-ray in treating her ankle into which a screw had previously been inserted o Ps expert testified that he personally would have taken an X-ray, but did not say that it was negligent for the D not to do s o Judgment in the Ds favor was affirmed o also noted that if negligence is so grossly apparent that a layperson would have no difficulty in recognizing it, expert testimony is not required ex. surgeon amputates wrong leg, an expert need not be called also shows how the standard of care applicable to malpractice actions protects the exercise of professional judgment must be reasonable though Biomet Inc v. Finnegan Henderson, LLP reasonable exercise of judgment will not give rise to liability D lawyer chose not to appeal an adverse $20 million punitive damages judgment against their client at the time they challenged the related compensatory damages award The choice was reasonable at the time it was made b/c there was no basis to constitutionally challenge the punitive award until the award of compensatory damages was reduced And raising a weak punitive damages claim might have weakened the initial appeal and risked and adverse ruling on the compensatory damages issue but on 2nd appeal of the punitive damages not allowed P sues D for medical malpractice, but judgmental immunity doctrine protects D, because the error was one of professional judgment and that the attorney exercised reasonable care in making his judgment Also, the law was unsettled as to whether the constitutional challenge was waived if not raised in the initial appeal Judgmental Immunity Doctrine o An informed professional judgment made with reasonable care and skill cannot be the basis of a legal malpractice claim.

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Many courts have abandoned the locality requirement (locality rule), especially in cases involving medical specialists Russo v. Griffin o An attorney was charged with malpractice, based on failure to advise his client of the desirability of obtaining a covenant not to compete from the party who was selling the client an interest in a paving business. o Court held that malpractice was not precluded by the fact that only out of town experts had testified such advice was required o Majority of judges say that frame of reference was minimum expectation of a practioner in the Ds state because attorneys are licensed by the state and are subject to state rules of practice and b/c substantive law often differs from one state to the next o Concurring justice said should be one in favor of a national standard may be logically applied to nationalized fields Ex. copyright law or federal tax law

Duty : Specific Duties of Lawyers o A reasonably prudent lawyer must normally Conduct legal research Investigate the facts Be aware of trends in the law Communicate with the client and gain informed consent There is no liability for Reasonable errors of judgment Failure to predict the resolution of unsettled questions Failure to question well-settled law Reasonable failure to assert novel theories Lawyer must refer a client to a specialist if under the circumstances , a reasonably careful lawyer would P must prove that the lawyers breach of the applicable standard of care resulted in damage o Burden of proof is high must prove that lawyer breached an applicable standard of care as well as they would have prevailed if it was not for the breach of duty o If you would have still lost then you will not win o Causation The but for rule Requires a trial within a trial o Transactional errors are different in regards to proof of causation of damage o Some courts say that P must prove that but for the error there would have been more of an advantageous results Better deal or no deal at all Many disputes resolved by settlement , so even if P might not have won at trial, causation of damages may be established if the P proves that but for the lawyers negligence , a dispute would have settled on favorable terms Courts generally require a former criminal defendant client to prove innocence of the crime charged as an essential element of their malpractice claim Medical Malpractice Doctors subject to many of the same malpractice principles that apply to lawyers They owe a duty of care to patients and sometimes to non-patients

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Communicable diseases o The fact that someone would have done something different is irrelevant to decide malpractice look at doctors procedure and decide if that was conduct no other doctor would have done in the same instance Doctors will usually be judged by the community or school which they trained under or prescribe to There are some laws that generally limit doctors exposure to liability, but few attempts to legislatively protect lawyers from liability so largely governed by common law Boyce v. Brown o P alleged that it was negligent for the D physician to fail to take an x-ray in treating her ankle into which a screw had previously been inserted o Ps expert testified that he personally would have taken an X-ray, but did not say that it was negligent for the D not to do s o Judgment in the Ds favor was affirmed o also noted that if negligence is so grossly apparent that a layperson would have no difficulty in recognizing it, expert testimony is not required ex. surgeon amputates wrong leg, an expert need not be called also shows how the standard of care applicable to malpractice actions protects the exercise of professional judgment must be reasonable though o Informed Consent (medical malpractice) Medical Malpractice: Informed Consent The failure to obtain informed consent is professional negligence even if treatment is skillfully rendered. Treatment Alternative Risk associated with treatment A physician must disclose all material risks and alternatives, except if: 1) The information is, or should be, known to the patient 2) Disclosure would be detrimental to the patients best interests 3) There is an emergency Cantebury Reasonable person standard Would a reasonable person in similar circumstances acted the same way. Limits the protection granted to an injured patient Doctrine of informed consent is rooted in the fundamental belief that every human being of adult years and sound mind has a right to determine what shall be done with his own body. o Doctor may held liable for negligence even if the doctor obtained the patients consent to treatment and exercise all due care in performing medical services, if in getting the consent the doctor failed to disclose the material risks and relevant alternatives to the treatment (uninformed) o Test of materiality matter be likely to affect the patients decision, o Not that it would change their mind o b/c all negligence require proof that damage was caused by the breach of the duty patient must show in an informed consent action not only that there was a failure to disclose but also that the non disclosure was casually related to some injury no action will lie if fact finder believes that patient would have consented to the same course of treatment had full disclosure had been made

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Scott v. Bradford A patient had experienced problems subsequent to hysterectomy Previously, her surgeon had neglected to disclose the risks of the operation and the available alternatives Court adopted a subjective test which simply asks whether there is a credible evidence to support a finding that this particular patient would not have consented This test seems to invite perjury, or be an undependable legal guide Most jurisdictions have rejected this subjective approach and have adopted an objective test This test inquires whether a reasonable person would have consented to the treatment if the risks and alternatives had been disclosed If a reasonable person would have refused treatment, it is likely that this particular P would also have refused Problem with this objective test is that it sacrifices some measure of the patients right to self-determination , because persons have a right to act unreasonably when it comes to their own affairs o If treatment is completely unauthorized and without consent at all, the action is one for battery

Educational Malpractice

o Courts have typically refused to recognize educational malpractice as a cause of action o Reluctance due to many considerations o Deference to other branches of government with regard to matters of educational policy o opinions differ widely about what constitutes effective educational pedagogy o Wariness of difficulties in establishing causation of damages o A students failure to learn may be the result of many factors other than allegedly negligent educational practices Judge Made Standards of Care When juries apply reasonable prudent person test problems may arise involving consistency and predictability of results b/c disputes may be decided differently by different juries Alternatives to determine conduct of reasonable person o Established by legislative enactment which expressly or implicitly provides for civil liability o Adopted by the court on a legislative enactment which does not expressly or implicitly provide for civil liability o Established by judicial decision without reliance on legislation o Pokora v Wabash o shows judge made standards of conduct = can be inflexible at times o P and looked and listened but did not get out of his car to walk and see around parked box cars o P was hit by train o There was a rule that said once and for all if a driver cannot tell if train is dangerously near then to get out and see .lower court found P here negligent o Supreme court reversed and said this was not applicable here, because complex and extraordinary situations cannot be governed by ordinary rules fitted for common place o Helling v. Carey o D followed custom and did not test P for glaucoma b/c she was under 40 years old o Test = simple, inexpensive, dependable, and without it detection of disease is impossible o Gravity of potential harm and the slight burden it would have cost to administer test = court said it was negligent of the D not to administer the test B<PL o Had been his patient for years & there was plenty of time to administer the test o Ruling set the standard of care not only for the case pending but for future cases (applied here)

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diseases. Hand Rule Risk Utility Analysis o B < PL o B is the Burden of adequate precautions; o P is the Probability that the event will occur; o L is the Injury resulting out of the situation. If Burden is greater than PL than it is not Event should not occur The liability depends upon whether B s less than PL

o Duty of the courts to say what is required to protect patients from damaging results of common

Negligence Based on Violation of Statute

1. Did the statute set the standard of care (2 kinds) a. Legislature expressly says will result in Civil liability; i. look constitutionality of rule ii. applicability of facts to rule Standards Adopted by Courts : the statute sets the standard because the court thinks that it

is a good idea
iii. Consider 1. Class of persons 2. Types of harm to be prevented 3. Other considerations a. Causation problems b. Obsolescence c. Exclusivity of remedy Was there an excuse for the violation? (Possible Excuses for negligence per se) a. Incapacity to Comply (too young, physical disability, etc.) b. Ignorance of the need to comply (you dont know you broke rule) c. Inability to comply despite ones diligence (try but cant) d. No compliance because of an emergency e. Compliance would result in greater risk of harm f. There may be other excuses What is the procedural effect of an unexcused violation? 3 types a. Negligence Per Se (Sure Breach) Jury is instructed that if it finds that the facts establish an unexcused violation no further inquiry needed; statute set standard b. Prima Facie Negligence (if not rebuttable breach) Violation establishes Presumption of negligence that may be rebutted by showing of a adequate excuse i. Can use the excuse that you were violating the statute carefully c. Some Evidence of Negligence (Arguable breach) Violation is only evidence to which the jury may accept or deny as proof of negligence Was the violation causally related to the plaintiffs damages? Is recovery barred by available defenses?

2.

3.

4. 5.

Walker v. Bignell Held that although a statute required municipalities to cut /trim vegetation along highway it did not expressly provide that it could be used as a predicate for civil liability There was a necessary implication of the language of the statute Used class of persons/type of harm test Statutes Intended by Courts to Set Standard-case examples Gipson v. Kasey o party goer who violated statute prohibiting giving prescription drugs to people who did not have prescriptions could be held liable for death of another party guest because he gave him the drugs

58 o the death = type of harm that the statute was intended to prevent o Pelkey v Brennan o 13 year older girl injured while roller skating o Court held statute prohibited kids from being at rink under 16 after 7 without adults did not set the standard of care here o Statute was intended not to prevent physical injuries, but to protect the moral of well-being and study habits of children -even if statute is found to set the standard, judge does not have to impose liability discretionary ?? Stachniewicz v Mar-Cam Corp o P injured during barroom brawl o Argued that bars negligence could be established by regulation and statute o Statute = prohibited giving liquor to a person who was visibly intoxicated and regulations forbade liquor licensee from tolerating disorderly conduct o Statute intended to prevent physical harms like Ps court refused to hold violation of it to prove negligence, but hard to determine whether Ps injuries were caused by the extra drinks But for failed here But regulation set an appropriate standard of care Court can ignore foolish or obsolete legislation (ex 6 mph no longer enforced but still recorded) Court wont set standard of care if says should not be used to establish standard of care Some statutes are vague & not good for setting the standard of care but can be taken into account to determine whether a common law duty should be recognized Other statues just restate common law obligations and negligence here is already proved Ex. a rule requiring motorist to travel at a reasonable and prudent speed In deciding class of persons and type of harms consider: o Language of provision o Other parts of the act o Titles of the statute and subdivision o Legislative history o Ney v. Yellow Cab P hit by Ds taxi after had it stolen by 3rd party Vehicle was left unattended with the motor running and the key in the ignition looking@ legislation court said that key removal statute was intended to protect the public from harm to persons /property and no reason that they intended to differentiate b/w harm by criminal dissent said there was no indication meant harm by thief

just because statute does not set standard of care = you can still find negligence Effect of Unexcused Violation of Statute
a. Negligence Per Se (Sure Breach) Jury is instructed that if it finds that the facts establish an unexcused violation no further inquiry needed; statute set standard i. Martin v. Herzog 1. Ps decedent had failed to equip his buggy with alight for night driving, which was required by a statute 2. Trial court instructed jury that this violation of the law merely some evidence o negligence 3. Court ruled that the violation was negligence in itself and that the jury was not free to relax the standard established by the statute

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b. Prima Facie Negligence (if not rebuttable breach) Violation establishes Presumption of negligence that may be rebutted by showing of a adequate excuse i. Jury directed that if the facts show no excuse for violation then must conclude that the Ds conduct fell below required standard of care and was negligent ii. **makes this difference-if there is no credible evidence of recognized excuse then you can say that you violating the statute with due care **prima facie and per se have the same result in that once it is shown that there is an unexcused violation of a statute, the negligence issue (breach of duty is ordinarily taken from the jury but not the other negligence elements c. Some Evidence of Negligence (Arguable breach) Violation is only evidence to which the jury may accept or deny as proof of negligence

Proving unexcused violation of statute usually helps P b/c jury does not have use the totality of circumstances (gravity of loss , probability of foreseeable harm, utility of defendants conduct , and the availability and burden of alternative causes of action) but rather the rule and related facts Brown v Shyne o P became paralyzed after getting chiropractic treatments from D o P said that chiropractic had never been licensed as required by statute o Statute was intended to protect the public only against unskilled and unlearned practioners and not to impose Strict Liability upon those who exercise skill and because of fact lack licenses o P wouldve had to show lack of skill and care to bring injury within the category of harm the legislation had sought to prevent, negligence would already be established without regard to the violation of the state o Drivers License example o Just b/c lack of license does not mean gives rise to negligence o Could be several different reasons why lack of license Excused Violation of Statute o Excuses for Violation o Reasonable because incapacity b/c Ex. child too young to read to comply with walk light at intersection o actor exercises reasonable care in attempting to comply with a statute ex. snow falling faster than owner can shovel to keep walk clear o the actor neither knows nor should know of the factual circumstances that render the statute applicable ex. tail light goes out while D was driving o actors violation of the statute is due to the confusing way in which the requirements of the statute are presented to the public o actors compliance with the statute would involve a greater risk of physical harm to that person or to others than noncompliance ex. if road bends sharply to the left and it is safer for pedestrians to walk on the right with their back to the traffic and to the left **actors personal opinion, ignorance of the law, or that it customarily is violated = not defenses** o Zeni v. Anderson o rule of greater danger o P had to comply with law that pedestrians were supposed to use sidewalks and it was argued that she was contributorily negligent o Had defense = using sidewalk which was covered with snow and ice would have been more dangerous than walking on the roadway o Ranard v Oneil

60 o Excuse based on incapacity o P , a child almost 8 yrs old was struck by a car after failing to yield the right of way to the Ds vehicle o Court held that not all children are capable of understanding what care should be exercised in relation to traffic o Case remanded for consideration of such matters as age, intelligence, and experience of the child Compliance with Statute o Compliance with statute ,does not necessarily show that D acted reasonably o If situation is more hazardous than usual , precautions beyond the statutory minimum may be required o Ex. When rain on road , may be unreasonable to drive speed limit o Montgomery v Royal Motel D motel installed deadbolt locks as required by municipal ordinance P injured when criminal intruder entered and said hat motel should have taken greater precautions such as self-locking doors court stated that the facts posed a normal situation and that the motel had done his full duty by complying with statute Statutes Allowing no Excuse or Defense o these type permit no excuses = STRICT LIABILITY o ex. Minimum age for employment in hazardous occupations o Requirements for safety of employees, tenants o prohibiting sale to minors of firearms and other dangerous articles o prohibiting sale of adulterated food o Seim v Garavalia o Young girl bitten by neighbors dog o Defense of contributory fault could not be used because the dog bite statute was intended to impose absolute liability on owner of animal o Absolute liability is applicable when legislature by enacting a statute intends to preclude certain defenses and putting all responsibility on the violator o these types of statutes intended to protect a vulnerable class of persons from their own inability to protect themselves Special Standards of Care o gradations relevant to the exercise of care slight, ordinary, and gross negligence o prevailing view o not useful anymore o rarely used except with bailments common carriers, utilities, innkeepers some statutes
o automobile guest statutes o o o said the owner of car was liable to non-paying passenger only for aggravated misconduct these were held to be unconstitutional because they barred not only the few fraudulent ones but the great valid ones also Whitworth v Bynum o Justifications were protection of hospitality and prevention of collusive lawsuits In this case they said that these two reasons did not give good support for statute

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When courts have out of date statutes the idea is that the court exercise common law expertise in determining when a rule is outdated and to then act in a way which best facilitates reconsideration and perhaps revision of the obsolete rule

Chapter 6- Proving Negligence

Proof of Negligence Direct Evidence o Evidence of the fact in question E.g. eyewitness testimony as to the identity of the assailant Indirect Evidence o Evidence from which the fact in question may be inferred E.g. fingerprints, skid marks o Can use direct, circumstantial, or both Evidence of Custom Custom does not determine the standard of care Conforming- inference of reasonableness Departure from custom raises an inference of unreasonableness o Sometimes this can be rebutted if it was more reasonable to stray from custom Ex. walking on left side facing street, but you walk on the right maybe b/c @ that time it was more reasonable to walk on the right Low v. Park Price o D followed customary practice in community & stored Ps car outside & cars transmission was stolen o no evidence to overcome the inference of reasonableness arising from observance of the custom, judgment for garage upheld o The T.J. Hooper o 2 barges capsized in a storm after the tugboats pulling the barges had failed to receive a report of bad weather because the tugs had no working radios on board o no established custom with respect to having a radio receiver on a tugboat o Negligent- B < L x P o Adhering to custom does not mean not negligent Circumstantial Evidence o Circumstantial or more other facts from which the existence or non existence of the fact in issue may reasonably be inferred o Ex. skid marks can prove circumstantially that Ds car was traveling faster than speed limit o one is not stronger than the other
o

Constructive Notice o Signifies that a person or entity is legally presumed to have knowledge of something, even if they have no actual knowledge of it.

o o Goddard v Boston & Maine Railroad vs. Anjou Boston Case o Cases in which Ps slipped on banana peels o considered whether circumstantial evidence could show that the peel had been there long enough for the exercise of reasonable care to have required its discovery and removal o Goddard = no indication of banana peel condition so no basis for finding

62 o Anjou= showed peel was black and dry and was there for long time so it could show an inference of duration , since it was unlikely that peel was recently dropped o Joye v. Great Atlantic o Similar to Anjou case but different result here o Court held that jury could not tell whether banana had been there for 30 seconds or 3 days o Shows how courts faced with similar facts may vary with inferences Evidence of Notice o Liability for negligence depends on foreseeability, not notice o If harm was not otherwise foreseeable, P must establish that Ds had actual or constructive notice of the danger o Constructive notice is established by evidence that the danger existed so long that it should have been discovered through the exercise of reasonable care o Notice =NOT ESSENTIAL ELEMENT IN NEGLIGENCE o Notice = only required if dangerous condition is out of the ordinary o Ds mode of operation makes injury foreseeable, failure to take precautions may give rise to liability even if absence of notice of condition o Jasko v. Woolworth o Ds method of operation = selling pizza on waxed paper to customers who would consume it while standing on a slick terrazzo floor o It was probable that food would drop and create dangerous situation so notice not necessary o Corbin v Safeway Stores o Foreseeable that loose grapes would fall onto the grocery store floor, and therefore failure to supply non skid mats or take other precautions = negligence o Sheehan v Roche o Mode of operation used as alternative to proof of actual or constructive notice o Small # of states say if P can prove injury occurred as premises hazard or in self service store then rebuttable presumption of negligence and burden shifts to D to prove that it exercised care in maintenance
o P could not show constructive notice

Burden of Proof Distinguish o The burden of going forward with evidence From The burden of persuasion Res Ipsa Loquitur-the thing speaks for itself **helps w/ breach and cause** o Is one kind of circumstantial evidence from which breach of duty and causation may be inferred

o o

$ The character of the accident is such that it would not ordinarily occur in the absence of negligence. $ The instrumentality causing the injury is shown to have been under the management and control of the defendant No direct evidence Plaintiffs injury was not due to his own action D has a greater access to information Dont use Res Ipsa if you have Prima facie evidence Control o Exclusive Control Who was in control of the situation at the time that negligence occurred. o Control by the Plaintiff

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Despite the fact that the plaintiff exercised some control over the situation does not rule out Res Ipsa o Rebuttal Evidence Defendants introduction of evidence of due care does not rule out Res Ipsa o Specific Evidence If specific evidence (i.e. witnessed) is available Res Ipsa is precluded. o $ A legal aid o Merely preventing the plaintiff from being thrown out during litigation Common Sense o It recognizes that is appropriate to draw conclusions from circumstantial evidence A form of circumstantial evidence which may satisfy the plaintiffs burden of proof on the issues of breach of duty and causation The Burden of Persuasion o Defendant needs to prove by preponderance of evidence that he was not negligent.

o o o o o

Exclusive Control o Not required D have exclusive control not rigid o One way of fair wau to conclude D was cause of harm o Mobil Chemical Co v. Bell Workers injured from acid spewing P required to show that instrumentality was under control of D @ time of injury RIL applied b/c likely that negligence took place while in Ds exclusive possessionmachine was fine before got into hands of D Superior Knowledge Not necessary that D have superior knowledge or superior opportunity to obtain knowledge of how the event occurred Mahowald v. Minnesota Gas Co o Gas main explodes injuring people /property o Court in part allowed use of doctrine b/c company had superior knowledge of the gas distribution system and access and opportunity to identify persons acting in the vicinity of the gas mains Rebuttal Evidence D will respond by producing evidence that due care was exercised Question then is whether this evidence precludes doctrine from giving rise to an inference or presumption of negligence
Defendants introduction of evidence of due care does not rule out Res Ipsa

Cox v. Northwest Airlines o Ps husband killed when Ds flight disappeared over ocean o D brought evidence that it had exercised due care regarding maintenance, training o Court held that due care evidence did not preclude RIL doctrine because crash still remained unexplained o This evidence could help jury consider negligence, but will not warrant directed verdict **RIL only works when P does not and cannot know how the accident occurred** **If P is aware of how occurred = will have to prove negligence (cant take advantage of presumption) Specific Allegations or Proof Issue whether reliance on RIL precluded in cases where P alleges or proves some specific act of negligence (ex. derailment of train caused by open switch)

64
If specific evidence (i.e. witnessed) is available Res Ipsa is precluded.

Courts differ o Some say allegation or proof irrelevant to reliance o Some say that the evidence precludes reliance o Intermediate per Mobil Pp leads specific acts of negligence only proof limited to these acts and may consist of circumstantial evidence If p pleading give fair notice that not relying on specific acts alone but also on other negligent acts reasonably inferable from circumstances proof not limited to specific acts

Fault on Part of the P Fault on part of the P no longer always requires a denial of recovery Montgomery Elevator v Gordon o Held under comparative negligence a res ipsa loquitor P only required to show that Ds inferred negligence was more probably than not a cause of injury o Ps negligence doesnt matter Multiple Defendants RIL may be applied against multiple Ds Ybarra v. Spangard **very important and know it by name** o During surgery P suffered injury to his shoulder & brought suit to several people (nurse, doctor) o No dispute that injury normally would not have occurred in the absence of negligence & P was not a responsible cause o Unreasonable to have P who was unconscious at the time of injury to identify the wrongdoer o P was allowed to rely on RIL to raise presumption of negligence as to each D , but any D could meet that presumption by giving explanation of their conduct o Ds here had a special relationship to each other o When Ds are strangers to one another reliance on the doctrine has generally not been allowed **joint control is the key test for determining whether res ipsa loquitur will apply against multiple Ds**
$Ybarra Doctrine o Every defendant in whose custody the plaintiff was placed for any period was bound to exercise ordinary care to see that no unnecessary harm came to him and each would be liable for failure in this regard.

$Procedural Effect 3 views o Permissible inference (majority) Inference satisfies the Ps burden and will support a finding of negligence Jury free to accept or reject the inference , except in clear cases o Presumption that shifts the burden of going forward with evidence The presumption depending on the state shifts to D either the burden of production of evidence or the burden of persuasion Under former, RIL evidence requires directed verdict for P if D fails to show any evidence to rebut the presumption of negligence o Presumption that shifts the burden of persuasion Under latter, D in a RIL case must prove by preponderance of evidence that injury was not caused by the Ds negligence **shifting burden since D often has better access to a true explanation of the event**

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Spoliation of Evidence Some states permit an independent action Others use presumptions or sanctions Consider o Is there a duty (statutory, regulatory, or ethical) to preserve? o When does a duty arise? Pre-litigation? o Was the duty breached without excuse? o Was the breach intentional, reckless, or negligent? o Did the breach hinder presentation of the case? o Was the evidence of relevant, cumulative, critical? What sanction is appropriate? Dismissal of Action Exclusion of Evidence Presumption 1)rebuttable presumption used when the nonspoliating party cannot prove its prima facie case without the destroyed evidence o Jury should presume that the destroyed evidence was unfavorable to the SP SP bears burden to disprove the presumed fact or issue Presumption does not disappear until fact finder believes it has been overcome Prevents non spoliating party from having summary judgment against them 2) less severe- adverse presumption that the evidence would have been unfavorable to the SP Does not relieve non spoliating party to prove each element of its case Another tool for fact finder to weight the cases This action does not apply to testimonial evidence b/c physical evidence lends itself to being made unavailable, destroyed, altered hard to evaluate testimony Some say common law duty Party has duty when they are on notice of potential litigation after viewing totality of circumstances and party either actually anticipated or a reasonable person in their position would have anticipated litigation Once duty discovered, then we need to know whether it has been breached Reasonable care = standard When duty is just too burdensome then dont have to do it Smith v. Superior Court of LA o D had promised the P to maintain certain car parts relating to an accident o Afterwards D had allegedly destroyed, lost or transferred the parts o Court held that an action for intentional spoliation of evidence would lie even though it was not possible for P to plead specific damages because product liability case had not yet been tried Trevio v. Ortega o Court found availability of other remedies made recognition of an independent tort action for spoliation unnecessary and undesirable o Can impose sanctions Excluding evidence or testimony, dismissing an action, default judgment Or by submitting instruction the jury Choice of remedy depends on the culpability and prejudice to non spoliating party Many decisions have found that spoliation is better addressed through sanctions than separate cause of action

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But w/3rd parties litigation sanctions are not possible so stronger case here for separate cause of action Some claims against 3rd parties fail because 3rd party has no legally enforceable duty to preserve the evidence in question

Chapter 7- Factual Causation

Causation: Two Step Inquiry Duty/Breach of Duty Causation Factual Causation o A factual inquiry into whether the defendants conduct precipitated the inquiry Plaintiff has burden of proof Conduct is a Substantial Factor if it was But For or Independently Sufficient Proximate Causation A policy inquiry into whether it is fair to impose liability on a defendant whose conduct was a factual cause Damages P normally has the burden of proof Conduct is a substantial factor if it was o Indispensable but for o Independently sufficient o If the defendant was a substantial factor in contributing to the negligent action, they can be held liable o o The But-For-Test and Alternatives o Causation is required o Injury would not have occurred but for the negligence by the person o Causation = factual causation + proximate or legal cause (must have both!!!) Factual causation inquiry into what actually occurred. Focuses on whether the Ds conduct in fact caused the injury to the P-but for Proximate/legal issues of policy, asks whether even if there is a factual cause relationship b/w Ds conduct and Ps injuries there is good reason not to hold D liable Is it fair?? / **Foreseeability** Williams v. Stevies Industries Illustrates the 2 part test for causation Court held that an award of damages for the death of the Ps children had to be reduced by reason of the Ps comparative negligence since but for the Ps negligent failure to keep gas in the car, the car would not have stalled on the highway where it was foreseeably struck by the Ds truck But-for is not met Factual causation can still be established if 2 or more causes concur in bringing the harm & either one by itself would be sufficient to cause the result Ex. Caesar gets stabbed by lots of men and any 1 wound was fatal Stabbing by Brutus is factual cause because it was independently sufficient to cause the death Many authorities say the 2 are only ways to establish factual causation 1) must prove indispensable but for ; or

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2) independently sufficient contribution to the production of harm (w/multiple causes) Some cases say the relevant question is whether Ds conduct was a substantial factor and but for and independent are only the 2 most common ways but there are really 3 tests So in some cases with multiple causes = substantial factor is pretty good Anderson v Minneapolis Ds property was destroyed by A) Fire negligently started by D B) Another fire uncertain origin C) Both P was not required to show that but for Ds actions but rather that Ds fire was a substantial element in causing Ps damage, liability could be imposed P not required to establish causation in fact w/absolute certainty o Sufficient that Ds conduct more likely than not brought accident o Reynolds v Texas & pacific railway o Women fell down in unlighted train station stairway and sustained injuries o D claimed that P failed to show that absent the light she could have fell during the day also o Court said that where the D greatly multiplies the chances of the accident, the possibility that it would have happened w/out negligence is not enough to break the cause and effect o Jury can look at circumstantial evidence to determine whether an act was more likely than not the cause of an injury o Kramer Service v. Wilkins Court held that P failed to introduce sufficient evidence to support a jury finding that a negligently caused cut on Ps forehead had caused the P to get cancer 1 expert said no causal relationship and one said chances are small Jury could not find that cancer more likely than not was caused by Ds conduct Also jury could not rely on common knowledge to remedy the deficiency in expert testimonyaward was reversed Kramer v. Reynolds Broken transform Reynolds stands for simple proposition that the Ds conduct can never be a factual cause unless the chances of the harm to the P have been multiplied As to how much = simply the chances of harm must usually rise to the level where they make a but for contribution to the harm Kramer-when events are viewed retrospectively, the evidence must show that more likely than not the Ds acts were a factual cause No SPECULATION!! Experts testimony must be rooted solid in evidence Saelzler v Advanced Group Expert testified that the assault and attempted rape of a delivery person at an apartment complex was caused by the absence of daytime security personnel and poor maintenance of the gates leading into the complex Court said that his statement was speculative and could not support finding of factual causation b/c P could not identify her assailants w/out identification could be attacked by not intruders but tenants Loss of Chance Doctrine

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Loss of Chance Rule Doctrine that allows the plaintiff to recover damages where the defendants conduct was a substantial factor in causing the plaintiff a loss of chance to escape from the harm in question (death, paralysis, blindness, loss of limb, etc.) Loss of Chance Doctrine A persons prospects for surviving a serious medical condition as something of value, even if the possibility of recovery was less than even prior to the physicians tortious conduct Some states reject this doctrine Matsuyama v Birnbaum o Medical malpractice here deprived the P of a less than even chance of surviving cancer o Able to estimate patients probability of survival w/reasonable certainty o Recovery for lost opportunity of curing a disease was appropriate Assessment of Damages o Jury bases decision on evidence of Ps opportunity of survival and factors important to individual Ps circumstances o Multiply lost % change of survival by damages that could be recovered in a wrongful-death case o Some courts allow additional damages for heightened mental anguish or physical pain

Multiple Fault & Alternative Liability Burden of proof on factual causation shifts to the Ds, if; o 1)each is shown to have acted tortuously o 2) actual wrongdoer is one of the small number of Ds before the court; and o 3) nature of the accident makes it impossible for the P to prove causation Each D is subject to full liability for the Ps injuries , absent proof of lack of causation SUMMERS v. Tice o While attempting to shoot an animal, 2 Ds negligently fired @ the same time in direction of P o P;s eye was shot o Unreasonable to require P to prove which D caused injury, both Ds were shown to have been negligent (as compared to P who was innocent) o Burden of proof of causation shifted to the D o **burden will shift only in cases where it is shown that all Ds are negligent** o Per Summers suggests that Ds must be acting in concert, but other cases have said that burden will shift even if Ds acted independently Alternative Liability o When multiple defendants are involved in an action in which harm was inflicted by the plaintiff and the plaintiff cannot reasonably prove which actor caused the harm, the burden of proof shifts to the defendants Joint Several Liability o All defendants are held in a collective liability Ybarra and Summers o Showed that holding a collective of defendants can be held equally o Fault All the parties in Summers were at fault to being with, where as in Ybarra, there was no distinctive person accountable for fault

Enterprise Liability & Market Share General Rule

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Imposition of Liability depends upon a showing by the plaintiff that their injuries were caused by the act of the defendant or by an instrumentality under the defendants control Exceptions o Places burden of proof of causation on the defendants - Summers o Defendants acted in concert o Theory of Enterprise Liability or Industry-wide Liability Removes the need to identify the manufacturer o Find all defendants at fault o Small number o Industry wide association o o California version: If a DES-daughter joins in an action the manufacturers of a substantial share of the DES her mother could have ingested, each defendant will be liable for the part of the judgment proportional to its share of the market, unless that defendant demonstrates that it could not have made the dosages which caused the plaintiffs injuries. percentage of sales o New York version: 1) manufacturers shares are calculated on the basis of a national market; 2) a defendant who marketed DES for use by pregnant women cannot escape liability by proving that it did not make the dosages consumed by the plaintiffs mother; and 3) the plaintiffs recovery is limited to a percentage of her losses equivalent to the percentage of the national market represented by the defendants in the case. o R3 11 o w/respect to market share liability things to consider when adopting rule of proportional liability Nature of product? Long latency period of injury? Inability of Ps to discover the identity of the D even after exhaustive discovery? Clarity of the causal connection b/w the defective product and injury suffered by Ps Absence of medical or environmental factors that could have caused or materially contributed to the injury Availability of sufficient market share data to support rational apportionment of liability Sindell v Abbott o P claimed cancer as prenatal exposure to DES o Sued some manufacturers who sold DES o Ds negligent in testing & marketing the drug, but impossible to show which manufacturer made dosages that were taken by the Ps mom o Summers could not be used here b/c only 5 of almost 200 manufacturers were in court o came up with market share liability if liable only liable for proportion of judgment equal to Ds share of the overall DES market o shifted burden to the Ds 1) unavailability of proof of causation as much as fault of Ds 2) D better absorb or spread the cost of injury 3) placing burden of proof on Ds would be an incentive to safety in future Why defendants can be held liable: Manufacturer is in a better position To discover and guard against defects in its products To bear the cost of injury resulting from the defective product o Cost can be absolved by the consumer o Spread of Cost How the defendants can be held liable: o

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Market share at the time of injury Exculpate Defendants can show that they were not responsible General Rule Imposition of Liability depends upon a showing by the plaintiff that their injuries were caused by the act of the defendant or by an instrumentality under the defendants control Exceptions Places burden of proof of causation on the defendants - Summers Defendants acted in concert Theory of Enterprise Liability or Industry-wide Liability o Removes the need to identify the manufacturer Find all defendants at fault Small number Industry wide association

Hall v. Du Pont o Several kids had been injured by blasting caps in separate incidents o Suit brought against the 6 manufacturers which made up the virtually the entire industry in the US o Evidence showed that the groups had adhered to industry wide standards on safety features o b/c of small size of group & evidence of interrelated conduct, Hall court held that if Ps could establish by preponderance of the evidence that the caps in issue were manufacture by one of the Ds , burden of proof on causation will be shifted to the D Hymowitz v. Eli Lilly o Held that to reduce burden on litigants and ensure consistency b/w individual cases , market shares should be calculated on national basis o Measured by amount of risk that each D created to the public at large o Manufacturer who distributed drug for use by prego moms couldnt avoid liability by proving that it did not make the dosages of the drug which had harmed the P o NY- liability of DES is several only & should not be inflated when all participants in the market are not before the court in particular case Commingled Product Theory of Causation o In re MTBE products liability litigation Country water suppliers could not prove which manufacturers of gasoline containing MTBE were responsible for contamination of wells Manufacturers could be liable unless they were able to prove that their MTBE was not at the relevant place at relevant time D severally liable because joint and several is unjust where there are a large number of actors , each of whom gave a relatively small and insignificant part of the total harm , that the application of the rule of joint and several liability may cause disproportionate hardship to the Ds Three Tests for Shifting the Burden of Proof of Causation o Summers v. Tice only small number of Ds All Ds at fault Have to meet standard of requirement for the burden of proof Few Ds Plaintiff finds it impossible to identify the Defendant o Concerted Action Concerted Action Lumps the defendants into one group Active involvement Civil Conspiracy By Agreement Aiding and Abetting By Substantial Assistance o Industry Wide Trade Association Industry Wide Standards

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Landmark Cases for Perspectives on Factual Causation Paradigm case NOTE TO JOHN WTF o P has the burden of proof Ybarra v. Spangard- Res Ipsa Loquitur o Ps burden is eased Summers v Tice-Alternative Liability o Burden shifts to Ds if all were negligent and the responsible party is in court Hall v Dupont- Enterprise Liability o Burden shifts to Ds if they jointly controlled the risk and if is virtually certain the responsible is in court Sindell v Abott California Market Share o Burden shifts to Ds if the number sued is sufficiently substantial to prevent injustice Halberstam v Welch Concerted action o P need not show that D caused harm, but only that D acted in concert with wrongdoer Hymowitz v Eli Lilly NY Market Share o D who engaged in a particular type of conduct is liable even if it neither caused the Ps harm nor acted in concert with one who did Hall v. Dupont Blasting cap case

Concerted Action Liability Joint and Several Liability o The Plaintiff may: Either sue each or all tortfeasors separately or in a single action Obtain a judgment against one tortfeasor alone or against all tortfeasors Not collect more than one full compensation Cannot have Unjust Enrichment o Grounds for JS Liability Concerted Action Lumps the defendants into one group Active involvement Civil Conspiracy By Agreement Aiding and Abetting By Substantial Assistance Respondeat Superior p62 Moore v. El Paso Chamber of Commerce Joint Enterprise See p.405: An agreement; A common purpose; community of pecuniary interest; equal voice 2 varieties o Suit can be maintained against a person who stood in a particular relationship to the actual wrongdoer Civil Conspiracy & Aiding-abetting o 2 basic forms of concerted action liability o Elements of civil conspiracy (by agreement) 1) Agreement b/w 2 or more people The agreement may be tacit or implied. Explicitly agreed is not needed 2) To participate in in an unlawful act , or in a lawful act in an unlawful manner 3) Harm caused by the act of a party to the agreement 4) Done in furtherance of the common scheme

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Element of agreement is a key distinguishing factor here Proof of tacit as opposed to explicit understanding is enough to show agreement Ex. 2 cars in adjacent lanes continue to accelerate , neither allowing the other to get ahead ,there is a tacit agreement to race , if unlawful and injuries then will support an action under concerted action theory No wrong committed = conspiracy to commit a wrong not actionable Some instances you can in a timely manner withdraw from the conspiracy Proof that P was injured by an unlawful overt act is essential for civil conspiracy Prove Concerted Action Prove Foreseeability Aiding and Abetting (substantial assistance) Elements 1) a wrongful act by the principal causing injury 2) general awareness by the D of his or her role in the overall illegal activity 3) substantial assistance o Nature of the act encouraged o Amount of assistance o Ds presence or absence at the time o Ds relation to the tortfeasor o Ds state of mind o Duration of assistance 4) Does not involve an agreement to participate Advice/encouragement to tortfeasor= enough to hold liable **One who assists a tortious act is liable for reasonably foreseeable acts done in connection with it. o Both give rise to joint and several liability Herman v. Wesgate o P thrown overboard during a floating stag party and sustained injuries o Court refused to allow the complaint to be dismissed against certain D just b/c they were not the ones who laid hands upon the P o Ds encouraged or otherwise aided the misconduct of the primary actors then can be held fully responsible for the resulting injuries Keel v Hainline Another example of aiding and abetting Halberstam v Welch A wife who for years had helped her husband to dispose of the loot he had acquired through illegal activities was held liable under both theories of concerted action for a murder he committed during a burglary, even though she did not specifically know that he was committing burglaries Use of violence to avoid detection and apprehension was a foreseeable risk of several types of criminal conduct that were foreseeable from the regular acquisition of the loot Person standing there smiling while someone is getting beat up Probably no liable De minimum non curat lax- law does not concern itself with trifles Joint enterprise Another form of concerted action In the nature of a partnership

o o

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Can also be less formal arrangements for cooperation during more limited period of time and for more limited purposes Joint enterpriser-agent /servant of the others act and of any one within the scope of the enterprise is charged vicariously against the rest Elements of Joint Enterprise o Agreement ,e express, or implied among the members of the group o A common purpose to be carried out by the group o A community of pecuniary interest in that purpose among the members ; and o An equal right to a voice in the direction of the enterprise , which gives an equal right of control o Some cases reject suggestion that community of interest be of a business of pecuniary nature Incitement Words can play role in concerted action liability ,b but must consider whether they are protected under the 1st amendment Herceg v Hustler Magazine o Raises issue of whether statements in a widely distributed publication can give rise to tort liability for physical injury based on tortuous incitement o Boy here died of asphyxiation while engaging in sexual acts shown in the magazine o Court found that under no reading could the article been seen as advocacy, let alone incitement b/c it repeatedly warned the reader against engaging in the practice it described o Cases against the media for incitement of tortuous conduct have typically failed o Courts have typically relied on Bradenburg v Ohio, which established clear and present danger test or constitutional principles limiting liability for defamation o those publications that have involved material information relating to P have been held liable ex. Newspaper publishes name and addy of witness while perp is still at large and may be held liable if witness is killed

Chapter 8 Proximate Causation

Generally o An inquiry into fairness of imposing liability o Subset of factual causation o Is not a difficult issue in most cases o Policy Decision o Proximate causation public policy call on how far liability should extend for harm factually caused by tortuous conduct o Theory-one should not be automatically held liable especially if results are unexpected o Factual causation does not mean you will always have proximate cause of the harm o May be more than 1 proximate cause in situation o CN-must also be a proximate cause of the Ps harm or else irrelevant o 3rd restatement proximate cause is now termed scope of liability
o closest to harm Notes on Proximate Cause o It is a legal tool that limits the liability of defendant to the harms that are reasonably connected to the wrongdoer o Questions whether such negligence could reasonably be expected o May be used when an aggravation of a pre-existing condition occurs

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o Damages are equal to the harm caused

o 4 different views of proximate causation o 1) Directness/Remoteness-natural and continuous sequence

A proximate cause is one that produces an injury through a natural and continuous unbroken chain of events

o 2) Foreseeability fair to hold D liable for harm that was foreseeable and if not then not fair o 3) Result w/in the Risk whether injury fell w/in scope of risks that made Ds conduct tortuous o Determining this requires assessment of whether negligence ran its course or whether things went back to normal o 4) Normality and Bizzareness- fair to impose liability for results that are normal or ordinary rather than bizarre or extraordinary o Depending on facts one might be better than the other o Scope of PC naturally extends further with intentional or reckless conduct o Less change of imposing liability that is disproportionate to fault (important pp) Proximate Causation as a Multifaceted Inquiry Andrews in Palsgraf -was there a natural and continuous sequence b/w cause & effect -was there a direct connection between them, without too many intervening causes -is the effect of cause on result not too attenuated? -cause likely, in the usual judgment of mankind, to produce the result? -by the exercise of prudent foresight, could the result be foreseen? -is the result too remote from the cause, and here we consider remoteness in time and space -we draw an uncertain and wavering line, but draw it we must as best we can Direct causation v. foreseeability o DC- liability extends to harm which flows in an unbroken stream from the actors tortious conduct no matter how unforeseen harm may have been o not until there is an intervention of superseding cause does the scope of liability cease o Foreseeabilty liability limited to damages which were or should have been foreseen by actor Polemis - The action is directly traceable to the negligent act o Plank negligently knocked into hold of ship o Plank struck spark which ignited petroleum vapor and fire destroyed vessel o Court said that foreseeabilty was immaterial even though spark could not be reasonably anticipated to fall o Damage was directly traceable to negligent act and not due to another intervening cause so D was liable

75 o Modern rationale in states now proximate cause is one that produces an injury through a natural and continuous sequence of events unbroken by an effective intervening cause o Wagon Mound 1 o Careless discharge of furnace oil into waters near the OPs wharf o Motel metal dropped by Ps workers ignited floating oil and fire started which destroyed wharf o Court said that ideas of justice now an actor should be liable for all direct consequences regardless of foreseeabilty is not fair o Foreseeabilty matters here and that it was not foreseeable that the oil could be set afire when spread on water , so D was not liable Modified Foreseeability *what must be foreseen? -general class of persons ( palsgraf , kinsman #1) - General type of harm - Only a remote possibility of harm (wagon mound #2) - Not the exact manner of harm (mehri) - Not the full extent of the physical harm (Kinsman #1) - Not the full extent of physical injuries (mccahill ) - Not ordinary rescue efforts * However : - The result must be within the risk created by the Ds conduct (Diponzio) and - Foreseeablity is not sufficient to create liability if harm is too tenuous and remote (Kinsman #2) o Tortfeasor need only foresee the broad outlines of harm o 1) As set out in Palsgraf teaches it is never necessary for the D to foresee the identity of the particular P o Enough that there is a danger of harm to the class of persons of which the P is a member o 2) d need not anticipate the precise manner of the occurrence o Ex. giving child loaded gun is negligent b/c of foreseeable risk that it might discharge , it is irrelevant that the gun fires b/c dropped , rather than b/c trigger is pulled o Mehri v. Becker P injured @ union picnic Large crowd and lots of alcohol was there and there had been some fights Risk of physical harm to the P was a foreseeable consequence of the Ds failure to have adequate security, made no difference that the precise manner of the injury, namely the Ps being struck by a car driven by an angry picnicker , would not have been anticipated 3) foresight of a remote possibility of harm may be sufficient to establish proximate causation Wagon Mound No 2 o Suit brought by the owners of 2 ships which were destroyed by the fire while docked at the ill-fated wharf o Court here determined that there is a duty to anticipate even remotely possible risks, at least to the extent that the prospective danger can be easily avoided o Since D had offered no justification for the discharge of oil, which in fact was illegal , the court reversed judgment in the Ds favor

76 4) D need not foresee the exact extent of harm, so long as the harm which ensues is of the same general sort that was risked by the Ds conduct o Kinsman No 1 Riparian landowners sustained flood damage when a ship broke from its dock & went downstream ,toppling a drawbridge and causing water to backup up behind a dam formed by the wreckage Court held that each of the 3 Ds Ship-owner failed to properly moor the ship Wharfinger- which had neglected to exercise due care in the construction and inspection of deadman to which ship had been anchored City failed to have men on duty to raise the drawbridge (easier to prove up this liability P- within the class of persons to which danger was foreseeable Impossibility of the advance identification of the particular persons who would be hurt was w/out legal consequence Either indorses direct causation view of proximate causation or loosely interprets the foreseeability view so that foreseeability of the full extent of harm is not required 5) with regard to personal injuries , D takes the P as is and need not foresee the full extent of the resulting injuries in order to be held liable o McCahill v NY Transportation Co (eggshell skull case) Ds taxi negligently struck Ps intestate 2 days later man died of delirium tremens , which would not have happened had he not been an alcoholic D was responsible for death b/c the negligent act had directly set into the motion the sequence of events which caused the death Fact that D might would have died later of delirium tremens is not good defense but can be taken into account with damages
o McCahill Doctrine o The defendant is held liable even for results that could not easily have been foreseen o Damages are equal to the harm caused

Eggshell skull- once a P suffers any foreseeable personal injury, even a trivial one, het D is liable for all physical consequences ,even unforeseeable injuries, so long as they do not stem from superseding causes Eggshell is only for physical injuries Dont need foreseeablity here Liability only imposed to the extent that tortious conduct aggravates the pre-existing condition , not for sickness already present may have liability for harm disproportionate to the Ds fault
o Eggshell Doctrine A person with an eggshell head suffers greater than normal injuries as a result of a blow to the head Foreseeable Injury Defendant is liable for all physical consequences, foreseeable and unforeseeable

77 even if there is foreseeablity, courts have declined to find proximate causation Kinsman 2 o Ps were owners of wheat stored aboard a ship which could not navigate the river b/c of wreckage of the collapsed bridge o Brought suit to recover the costs of being forced to transport the wheat via an alternative route o Court held that even though it was foreseeable commerce would be disrupted & some parties would incur such costs, that relationship b/w costs to the Ds negligence was too remote to permit recovery o Temporal remoteness- @ some point too much time has passed an too many developments occurred that it becomes unfair to impose liability Result within the Risk Result must fall within the scope of risks that made the Ds conduct tortious DiPonzio v Riordan o D operator of gas station was allegedly negligent in training its employees o They violated a company rule allowing customer to leave car on while pumping fuel o P injured b/c Ds car rolled back into him When vehicles engine is left running in area where gas I pumped , natural and foreseeable risk of fire or explosion b/c of highly flammable properties of the fuel But here accident was not among the hazards that are naturally associated with leaving a car engine running during operation of a gas pump, so Ds employees were not liable so here, difference in manner of occurrence is irrelevant only if the result within the risks that made the Ds conduct negligent

Superseding Causation Superseding Causation & Foreseeablity if either the intervening cause or the ultimate harm is foreseeable, the Ds liability is not superseded here foreseeable means nothing more than bizarre or abnormal Exceptions - Liability is not supersed by a foreseeable intervening cause, if the Ds conduct neither created nor increased the risk of harm - Even if the ultimate harm is foreseeable , liability is superseded by intervention of an unforeseeable intentionally tortious or criminal act Intervening Cause- force which comes into play after tortious conduct has occurred and actively contributes to the production of the harm for which recovery is sought o ex. strong wind arises after D leaves fire unattended may be intervening cause if it whips the flames an causes fire to spread to Ps place Superseding cause- when an intervening cause supersedes or cancels the antecedent actors liability for harm foreseeablity & superseding causation means that force was a normal consequence of the Ds conduct (not abnormal) foreseeablilty of precise nature is never required for intervening force

o o

End Results within the Risk

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o Derdiarian v. Felix Contracting Corp o D contractor negligently failed to guard a construction site o P who was an employee of D got injured when a car crashed into site after driver had seizure o Intervening act was not a superseding cause b/c the foreseeable , normal and nature result of risk was the injury of a worker by a car entering into the work area o Did not matter that D could not anticipate precise manner of accident /extent of injuries

Foreseeable Intervening Acts o Kimble v. Mackintosh Hemphill o Negligently maintained roof blown off during high wind and killed Ps husband o Jury could have found that strength of wind caused the harm was foreseeable o Ds conduct was negligent because of risk that such wind would produce injury , so wind was not a superseding cause Exceptions to the General Rule o 2 exceptions o 1) liability is superseded even if the intervening force is foreseeable , if the Ds conduct in no way increases risk of harm by intervening force Ex. driver causes accident , blocks highway during storm, 3rd partys car struck by lightning while waiting for road to be cleared But no basis that drivers conduct increased likelihood that lighting would strike Rule is consistent with requirement of factual causation Ds conduct must multiply the chances of harm to the P 2) if ultimate harm is foreseeable, liability for antecedent tortious conduct is superseded by the intervention of unforeseeable criminal or intentionally tortious conduct Intervening Criminal or Intentionally Tortious Conduct o o o Unfair to hold original actor responsible for the resulting harm if there was no opportunity to anticipate or guard against such intervention PP- decrease risk of imposing liability disproportionate to fault Spears v. Coffee o Violent attack by one minor guest on another was so unforeseeable that the owners of the home where the attack happened could not be held liable for alleged failure to protect the injured guest from harm o Attackers intentional criminal act was found to superseding cause of the victims injuries Nixon v. Mr. Property management Co o Criminal conduct was held to be foreseeable and not a superseding cause Girl raped in abandoned apartment complex o Action against complex for negligent failure to comply with city ordinance regarding maintenance of buildings o Criminal acts of abductor did not prevent finding of proximate causation o 34 crimes committed previously , not rapes but crimes involving harms to people so it was foreseeable that another crime of violence would have happened o Important here that abductor went straight to vacant building , b/c if this was last resort it would be hard to show that the negligence of D was a substantial factor in causing rape (multiplying chances0 Watson v. Kentucky & Indiana Bridge & R.R. Co o P injured by gas negligently discharged by railroad and was ignited by match struck by bystander o Conflicting testimony as to whether bystander intentionally struck match

o o

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o Court held if bystander had acted intentionally that a finding of proximate causation against railroad was precluded

Absence of Similar Prior Incidents o 1st view-Some jurisdictions say absence of prior similar incidents, dont bound land owners to anticipate criminal acts , esp. if occupier is stranger to victim and assailant & act was sudden o 2nd view-dont like it o Discourages landowners to protect dangerous property o Uncertainty of how similar prior incidents must be o Denies recovery to 1st victims even if harm is foreseeable Situations in which D likely to be found liable for harm by intervening criminal act o Fails to perform duty o E.g. security company neglects to patrol complex o Defeats Ps efforts to achieve self protection o E.g. maid leaving key in front door of Ps home o Brings into association with the P a person known likely to commit a crime o Ex. school hire coach with record of violence against players o Fails to restrain dangerous person over which it has custody o Ex. detention facility neglects to confine dangerous juveniles o impose liability for harm that thief causes only if D carelessly leaves keys in car in area that is dangerous Normal Situations o Marshall v. Nugent o P was passenger in car forced off highway by D o P walked toward to hill to warn oncoming traffic and in process was hit by 3rd party o court held that Ds negligence caused subsequent harm to P if the intervening act was foreseeable or was at least a normal consequence of the situation created by the D o risk of being hurt while trying to offer assistance at scene of highway was one of the many risks to which Ds negligence subjected the p o Whitaker v Kruse o Generally, initial wrongdoer is liable for aggravated injuries caused by negligently performed medical services related to the original injury ,since risk of errors are a normal part of obtaining medical care o But if medical mistake is so extraordinary then antecedent tortfeasor will not be liable for aggravation of Ps injuries o Some say reckless intervening act like an intentional one will break chain of causation o 2nd injuries caused by a weakened physical condition resulting from 1st injury , liability for 2nd injury imposed on initial tortfeasor on basis that complication was a normal consequence of the tortious conduct ex. virus affects bedridden P or P falls while trying to walk on crutches Rescue Doctrine o The Rescue Doctrine o Requirements: Imminent peril An act of intervention Tortious conduct by the defendant o The doctrine governs liability for losses subsequent to intervention.

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The act of rescue will normally not be a superseding cause unless it is performed in a grossly careless manner (rashly and imprudently) o Issues: Superseding causation Liability of rescuer to victim Liability of creator of the peril to rescuer Contributory negligence of rescuer Liability of third-party to rescuer Rescue Doctrine o Policy: Induce help, but not at all costs Three Participants Creator of the Peril Victim Rescuer o Participants: Typically, the cases involve three persons (the creator of the peril, the victim, and the rescuer), but the doctrine also applies where the peril has been created by the victim. 1) normal rescue efforts dont break chain of proximate causation between tortfeasor and victim, even if rescuers negligence aggravates Ps injuries ; and 2) an injured rescuers claim against the creator of the peril cannot usually be frustrated by claims of lack of proximate causation Risks to rescuer and victim are foreseeable as a matter of law as a result of tortious conduct Some courts say that an injured rescuer will be barred from recovery only recklessness and not mere negligence Some say ordinary negligence is a defense Compensation is not an all or nothing under comparative principles Courts reluctant to find rescuers confrontation of known danger amounts to contributory negligence Good Samaritan Statutes o Limit the liability of rescuers to cases of aggravated misconduct, as long as rescuers did not act rashly and imprudently o

o o o o o o o

Altamuro v Milne Hotel o Decedent re-entered burning hotel after he performed 2 previous successful rescue missions o Firemen had ordered all civilians out o Court still did not find him to be contributorily negligent o Elements for rescue doctrine to apply o Risk of imminent peril to the person or property of another o Act of intervention in response to the peril by the purported rescuer o If tort action is against the creator of the peril, the P must establish that the o Peril resulted from the creators tortuous conduct , rather than from an unavoidable o Barnes v. Geiger o Held that rescue doctrine does not apply to those who go to see what happened, but who perform no act of aid o Until recently, it was held that benefits of the rescue doctrine could not be invoked by one whose negligence created the peril o But now rescuers contribution to creating peril, may be taken into account in determining whether compensation is available under comparative principles Intervening Acts of the Victim o

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Tortfeasor may be liable for injuries sustained by another in effort to escape harm and this is true if victim even adds to danger because of panic Damages may be reduced on a comparative basis due to fault on part of P Whether victims intervening acts become a superseding cause depend on victims state of mind and ability to exercise control o Victim delirious and rips off bandages and bleeds to death likely that death will be a normal consequence of Ds negligence o What if victim has some degree of awareness and decides to put an end to his life? Traditional view- even the slightest awareness will preclude initial tortfeasor for liability Some recent decisions have said that life may have been so physically and mentally painful that victim may not of had a choice Ex. Fuller v Preis (irresistible impulse test) o Head injuries suffered as result of Ds negligence o Decedent depressed , unable to continue surgery, seizures o Court said that he knew what he was doing when he killed himself , but because of mental derangement he was incapable of resisting the impulse to kill himself o If risk of suicide is unforeseeable to D most states say that death was not proximate caused by D negligence o Ex. Minor gets gun from shop and kills himself, shop owner will not be liable o Risk that is unforeseeable to an ordinary person may be foreseeable to person with expertise Medical professionals fall into this category Foreseeable suicide by patient will not prevent a doctor from being held liable for having failed to take reasonable steps to prevent suicide

Limits on Foreseeablity McPeake v. William T. Cannon , Esquire o Attorney allegedly negligent in representing client charged with rap o Guilty verdict returned and client jumped from fifth floor o Suicide was foreseeable b/c client had threatened to kill himself if he was found guilty, but attorney not held liable for death of the client because lawyers have no special expertise in identifying or treating that kind of problem o Impose risk of liability that would discourage attorneys from representing large #s of unstable Ds

-intervening action may still be considered a superseding cause , even though it is foreseeable Robinson v. Reed-Prentice Division of package Machinery co. o P/employee injured when his hand was caught b/w plates of plastic molding machine o Foreseeable to D that employer would cut hole into Plexiglas gate and defeat the machines safety features o Manufacturer knew that machine did not operate property b/c strings of plastic beads had repeatedly gotten stuck in the machine o They were also aware that to fix a similar problem with other machines sold by the D , the employer had cut holes into their safety gates. o Also foreseeable that w/out safety gate the machinery would be dangerous to employees, who were expected to reach through the hold in the safety gate and place their hands b/w the moving mechanisms to correct problems

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o o However, manufacturer not liable because they produced a product that was safe at the time of the sale Superseding Causation and Comparative Principles o Superseding causation is an all or nothing o Some courts feel that the adoption of comparative negligence and comparative fault logically necessitates the abandonment of superseding causation rule o Control Techniques, Inc v. Johnson Court held adoption of comparative fault did not abolish doctrine of superseding causation but that b/c an instruction on superseding cause would only further clarify proximate cause , trial courts failure to give separate jury instruction on superseding cause was not reversible error Shifting Responsibility Shifting Responsibility An omission ordinarily does not break the chain of proximate causation. When the initial tortfeasor has done everything possible to avoid the harm, or if the omission is unforeseeable, responsibility may shift and the tortfeasor will not be liable for subsequent losses. If D causes harm, generally irrelevant that person fails to prevent the harm Extraordinary circumstances may allow responsibility for prevention of harm to pass to the 3rd person o Relevant factors Contract between D and 3rd person showing that 3rd party is to assume full responsibility Degree of danger and magnitude of risk of harm More serious the danger, the less likely that responsibility will shift Character and position of the 3rd person o Ability to act o Knowledge of danger o Likelihood that 3rd person will or will not exercise proper care Expense Inconvenience Insulation from liability Relationship to P Lapse of time Greater passage of time since wrongful conduct, more likely burden has shifted rd 3 persons relationship to P or D Parent expected to exercise greater care for child then stranger Goar v. Village of Stephen o Power company had negligently installed electrical line for village o Contract where village had duty to inspect lines and doing all maintenance after o No inspection made and they did not see that wires were rubbing together and wearing through o Current discharged into Ps home and she was injured o Liability shifted to village b/c Contract stated that the duty to inspect and maintain was on the village after the 1st year They had exclusive control Time passed and village failed to perform their duty Balido v. Improved o Years after machine had been built and sold, manufacturer found defect and notified current owner of its willingness to remedy the problem o Company did not accept offer and one of their employees hand got crushed

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Manufacturer held responsible and there was no superseding cause, because found that second hand purchaser might ignore the warning and reuse to spend 500 dollars to buy additional safety equipment , judgment in favor of manufacturer was overturned o Important to ask whether initial tortfeasor had done everything reasonably possible to prevent harm ; if so responsibility shifts Mere sale of item to another does not relieve seller of liability for injuries caused to 3rd person after sale o Bailey v. Lewis Farm, inc Company negligent in maintenance of tractor-trailers axle and sued for injuries a year after the trailer was sold to another party Sale did not shift responsibility to prevent harm solely to b of the tractor trailer Failure of buyer to properly maintain vehicle did not absolve seller of liability for injuries caused by a dangerous condition which is negligence allegedly created o

Chapter 9 Limited Duty Failure to Act

-Traditional Rule of No Liability for Nonfeasance -misfeasance v. nonfeasance a. misfeasance-active involvement in assistance another which falls short of reasonable care & will be liable b. nonfeasance-mere failure to act, absent an exception to the duty not actionable Limited Duty Categories -failure to act (non feasance) - premises liability -negligent infliction of severe emotional distress -conception, pregnancy, birth, and adoption - alcohol-related injuries 1. General rule of no duty to act ii. There is no duty to render assistance to another who is in peril no matter how easily aid might be furnished doesnt matter if intentional or inadvertent iii. Still the rule today iv. Union Pacific Railway Co v. Cappier 1. Train w/out fault ran over trespasser 2. Court held that railroad was under NO duty to stop and give aid v. Bishop v. City of Chicago 1. Held that city under no obligation to dispatch a rescue team to a plane which had crashed into the lake more than a quarter mile from airfield 2. Mere knowledge of the accident gave rise to no affirmative duty of care vi. Johnson v Minnesota 1. Halfway house under no duty to inquire into why a parolee did not report to the facility and not liable for a murder committed by a parolee under 8 day crime spree 2. House never had custody over him and no ability to exercise control b/c parolee had never arrived 3. Duties under Criminal Law and Good Samaritan Laws 4. Absence of tort duty does not mean cant be held criminally liable 5. Some states have statutes which say that if person without risk of person harm or inconvenience to others can give assistance to person in danger then person must do so or small fine might be charged 6. Most civil tort courts will not rely on these statutes for tort actions , because often reason to conclude that the legislature intended the exclusive sanction for a violation to be a minor fine 7. Duty creating statutes also create immunities on person who render aid at scene of accident-Good Samaritan acts

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a. Ex. Relive actor from liability conduct undertaken in good faith or may limit liability to cases of aggravated misconduct B. 314 Duty to Act a. The fact the actor realizes or should realize that action on his part is necessary for anothers aid or protection does not of itself impose upon him a duty to take such action b. A - Common Carrier/Innkeeper/Possessor of Land who extends invitation i. Is under the duty to care to its passengers ii. Protection against of unreasonable harm iii. Render first aid iv. Care for the passengers until they can be cared for by others C. 315 General Principle on Duty to Control a. There is no duty to control the conduct of a third person as to prevent him from causing physical harm to another unless i. A special the relation exist between the actor and the third person which imposes a duty upon the actor to control the third persons conduct or ii. A special relation exists between the actor and the other which gives to the other a right to protection 5. Nonfeasance: Policy A no-duty rule qualified by exceptions may be preferable to a general-duty rule in that it: i. Avoids the slippery slope of deciding who should act ii. Imposes a duty in the most egregious cases iii. Imposes no duty in trivial cases iv. Recognizes the limits of the law 6. Duty Policy Factors: 1) Foreseeability of harm 2) Close connection between conduct and injury 3) Certainty injury occurred 4) Moral blameworthiness 5) Prevention of future harm 6) Burden on the defendant 7) Consequences to the community and courts 8) Insurance i. (Re Public Agencies) extent of power and budgetary limitations 7. Exceptions to common-law no duty to rescue 1) Relationship to Victim Family Carriers, innkeepers, utilities Custody -ex. Warden knows that inmates have been hurting each other has duty to take precautions Employment Property ownership/possession 2) Relationship to tortfeasor Children -parents can be liable if they know child has specific problem and they fail to control their child -if child is simply bad and there are no specific dangers then parent doesnt have notice he will be fine Mental health patients Tarasoff rule 3) Entrustment of dangerous instrumentalities 4) Involvement in the accident 5) voluntary assumption of the duty

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6) statutory duties (Minnesota statute) De Vera v. Long Beach Public Transportation (carrier) Held that a carriers duty to passengers extends to investigating an accident caused by 3rd party tortfeasor so that passengers claims against tortfeasor will be facilitated Reasoned passengers would be harmed if accident information was not obtained it would be a burden to make passengers get off bus to get relevant data b/c time consuming and dangerous burden would be small for carrier, esp. since they had an interest in preserving the interest themselves employer has common law duty to provide employees w/reasonably safe workplace many crts say that employers also have a duty to protect their employees from foreseeable criminal attacks but some say that duty to protect citizens is government job may be liable for negligently increasing risk of criminal attack Wolfe v. MBNA America Bank o D bank issued credit card w/Ps name to another unknown person @ an addy that P never even lived at o Cardholder incurred charges which exceeded cards limit and failed to pay o P informed bank that he was victim of identity theft , bank failed to resolve dispute and notified credit reporting agency of delinquent account o P got rejected at job b/c poor credit score o Court held that P stated cause of action for negligent failure to verify the authenticity and accuracy of a credit account application before issuing a credit card o Possessors of land Person who holds land open to others is under a duty to protect those who enter from an unreasonable risks of physical harm and to render assistance if they become ill or disabled Duty continues as long as guest is on the premises w/in scope of invitation Ex. Farmer invites salesman for dinner and guest gets sick and farmer puts him out he could incur liability Landlord/Tenant o Has duty to protect tenants against foreseeable attacks by 3rd persons in areas under landlords control Kline v. 1500 o Landlord had notice that there were an increasing amount of attacks on tenants in common areas of large apt building o Landlord has duty to take precautions as are within the landlords power and capacity. No means insurer of safety of its tenants and not obligated to give police dept protection. o Landlord here had discontinued the use of a security guard who had been previously employed o Landlord was the only one in a position to take measures to secure area o Lessors duty to lesee may sometimes consider off premises dangers o Ex. Hazardous highway/ creeks o Many cases say though that property owners duties cease at the boundary of real estate o Condos might owe members range of duty similar to lessor as well o Custodians/Schools o Ex. Warden must exercise reasonable care to prisoner o Ex. Operators of medical care facilities o School may also have responsibility to protect its students and to be ready to render assistance o Kleinknect v . Gettysburg College

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Lacrosse player suffered cardiac arrest during practice and died Court held that college has a duty to be reasonably prepared to handle medical emergencies arising from intercollegiate contact sports Relationship to the Tortfeasor o D & tortfeasor stand in a special relationship o Duty of care is normally to control the tortfeasor or to warn the prospective P of the danger the 3rd party poses o Parents/Custodians Of Dangerous Children Parent have a duty to exercise reasonable care to control a child Linder v. Bidner Ds son an 18 yr old had assaulted and injured the P, younger child Crt said parents had knowledge of sons propensity for mistreating younger children and they had failed to avail themselves of the opportunity to control their child Parent who fails to exercise due care in the face of knowledge of specific dangerous habits is subject to liability NOT VICARIOUS LIABLITY unless defined by statute Non-parental custodians Nova Univ. V. Wagner o Held residential center for children w/behavioral problems could be held liable for harm caused by children who were allowed to roam at large o ***information providers stopped here!!!! Information Providers -a person who gives info about another person to a 3rd person under circumstances where it is foreseeable that the 3rd person may use the info to harm the person may have a duty to exercise reasonable car -Remsburg v. Docusearch, Inc. -man gets womans job addy from internet investigation service -man goes to her job and kills her -court held that PI or info broker who gives information to a client in regards to 3rd party must exercise reasonable care in disclosing that info Mental Health Care Providers Tarasoff v. Regents of Univ. of California& Peck v. Counseling Service of Addison County o Tarasoff- mental patient had informed a psychiatrist that he intended to kill a young woman who had spurned his affections o Doctor failed to warn woman o She as out of country might have been difficult o Wrongful death action by womans parents court held that once therapist determines or under appropriate professional standards should have determined , that a patient presents a serious danger to others, therapist has a duty to exercise reasonable care to protect the foreseeable victim from violence o Statute created that therapist could fulfill legal duties by communicating to the law enforcement officers Peck v. Counseling Service o Therapist told by a patient that he intended to burn his fathers burn o Therapist concluded in good faith that threat would not be carried out, but fathers barn burned down o Evidence that therapists good faith belief was based on inadequate information/consultation

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Once therapist determines or reasonably should have determined that patient poses a serious risk of danger to another , the therapist must take whatever steps are reasonably necessary to protect the foreseeable victim from danger o Action must discrete to protect privacy of patient o Imposed liability for failure to predict\ o Public interest is more favored than protecting patients privacy or imposing liability for failure to predict Entrustment of Dangerous Instrumentalities o Possessor of land or a chattel who permits its use by a 3rd party must exercise reasonable care to see that it is not used to harm others Ex. Firearm o Possessor present = duty arises from possessors inherent right to control property o Even if possessory not present , duty requires possessor to exercise vigilance in entrustment of property o Advancing funds Mckenna v Straughan Ds knew daughter had history of DWI Gave her money to buy a new car, accident occurred Parents held liable for giving her the money b/c same as giving her weapon Cosigning not enough b/c no exclusive control Victims of harm caused by illegal handguns have argued that gun manufacturers should be held liable for negligently marketing handguns in a manner that feeds the illegal gun marker Hamilton v. Beretta Negligent entrustment extends to manufacturers Where manufacturer knows or should have reason to know those distributors are engaging in substantial sales of guns into the gun trafficking market on consistent basis Involvement in an Accident if persons actions , whether tortious or innocent, have rendered another helpless or susceptible to harm, the person is under a duty to provide remedial assistance LaRaia v. Superior Court o Tenant became ill after an employee of the D apartment complex sprayed her unit with an improper pesticide o Court held that the Ds involvement in the accident gave rise to a duty to furnish correct information to medical personnel Rule is same if harm is caused by instrumentality under the Ds control L.S. Ayres v Hicks o Young boy got fingers caught in the Ds escalator o Store was unreasonably slow in stopping the mechanism which aggravated injuries o Store had an obligation to render aid to the boy once the injury came to its attention o Liability was limited to the injuries sustained after the duty arose Creating a Dangerous Situation o One who creates a dangerous situation must exercise reasonable care to prevent harm from occurring o Hit and run driver Negligence per se Courts are sometimes reluctant to conclude that a D created a dangerous situation Rocha v. Faltys College student encourage another student to jump from cliff into water (did not know how to swim) 2nd student was drunk, jumped and drowned Crt said that o He was an adult, he made decision, D did not actively encourage or coerce him to jump o D had no legal duty Voluntary Assumption of Duty Voluntary Assumption of Duty o

o o

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Persons who choose to get involved must exercise reasonable care. Two Questions: Has there been an undertaking? Past practice (e.g., crossing guards) Holding out (e.g., emergency rooms) Promises without action that induce reliance What is the scope of the duty? Duty to whom? Duty to do what? o some situations socially desirable even if lack knowledge to help person despite risk of making injury worse but o sometimes incompetence is so great that it becomes unreasonable to help and maybe held negligent for that person to give assistance o standard is reasonableness of situation with people who lack competence o not required to give continuing aid when assuming duty of care o question whether discontinuing aid is reasonable under the circumstance **this is only 1 factor to determine with worsening of the Ps condition o if moved them and put them in more danger ex. Driving person to hospital and then dropping them off on side of the road person cant throw a ring buoy to drowning person and then decide to pull it out halfway o deprive of possible help from others o induced victim to ease personal remedies o **termination not permissible o Parvi v. City of Kingston o Cops pick up 2 drunk guys and drive them to deserted golf course in night o Abandoned while drunk w/in feet of dangerous highway o City held responsible for injuries they sustained when they wandered into traffic o Cops removed them one perilous situation to another o Brownsville Medical Center v. Gracia o Hosp began preparing child for survey o When Hosp learned about childs parents lack of financial resources, they quit services o Child transferred to another hosp and child died o Hospital subject child to greater unreasonable risk of harm and therefore could be found responsible for the death o Important question to asko In whether there has been a voluntary assumption of duty , determine whether there was an undertaking by the D Ex. Cops taking men into custody Ex. Past practice Railroad has always had signal at street to warn of trains, but on one day they fail to and P is injured then they may be held liable b/c held to have assumed and breached a duty of care Holding yourself out to the public as available to provide services required Public emergency ward that turns people away seeking medical treatment will be held liable for aggravation of injuries caused EMTALA (emergency medical treatment and active labor) o Requires hospitals that get Medicare to give medical treatment that is necessary to stabilize patients condition o o o In some cases , question is whether Ds undertaking to do something creates a duty o the P Coffee v. McDonnell-Douglas: Arguments (Con) o We did not cause your disease o We did not know you had a disease o You did not rely; you had no right to rely o You are a stranger

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We were only acting to protect our own interests (and if we want to be negligent in protecting our own affairs, we can be) Coffee v. McDonnell-Douglas: Arguments (Pro) You were dealing with serious matter that had serious consequences I was not a stranger; you dealt with me personally Requiring you to read the test results entailed little burden Promise/reliance Recent cases reject old rule that promise plus reliance without further action did not constitute an undertaking Now, a promise w/out further action constitutes an undertaking if P relied Marsalis v. LaSalle Owner of cat promised to confine animal to determine whether it was rabid, but then failed to take precautions cat disappeared P forced to under painful treatment and became ill b/c P relied upon Ds promise and passed up opportunity to have public health officials lock up cat D liable Johnson v. Souza Ds failed to take steps to remove ice on front steps of home They had promised that they would so Court held that liability could be imposed if the jury found the injured guests reliance to be reasonable Sall v. Ts Inc. Golfer struck by lightning and seriously injured Crt found Ds procedures for warning golfers to leave course were undeniably for the protection of their patrons in the event of threatening weather Court still had to determine whether golfers had relied on this promise and if the course had been negligent in performing this duty No reliance, but promise is enforceable and there is breach .will there be an action for damage o Probably not! o Coyle v. Englanders Nightclub had breached contractual obligation to provide stagehands to load heavy equipment, which led to band managers injuries o Court held that failure to perform contractual term by itself create liability for personal injury damages, if breach of contract does not also violate a common law duty o Sometimes assumption of duty to one person will carry with it other duties to 3rd parties ex. Doctor gives bad advice about communicable disease to patient and 3rd person whose health is likely to be threatened by patient gets disease, 3rd party may be able to sue doctor obligation to 3rd party will rise if actors performance of service for another o increases the risk of harm to the 3rd party ; o induce detrimental reliance by 3rd party ; o or actor has undertaken to perform a duty owed by the other person the third party o Ex. Ricci v. Quality Bakers Bakery employee injured while running to fix problem with lids that were stuck on conveyor system He sued the consultant who had advised his employer to install some type of conveyor system and who was allegedly negligent in inspecting or failing to inspect the system which was failed

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Court said no liability because consultant did not increase risk of harm to the Pconsultant could just make recommendations but not assume employers duty to provide a safe workplace for employees

Abrogation of No-duty Rule Soldano v. Odaniels Man was helping to prevent injuries to another person and asked tavern keeper to call cops or allow him to call and tavern keeper said no and person died from injuries Even though tavern keeper had no special relationship and did not increase threat of harm, he was liable Crt said he was obliged to exercise minimal care today, many statutes encourage assistance or require exercise of care under given circumstances Termination of Rescue Efforts o Consider: Was victims condition worsened? Were others discouraged from helping? Did the plaintiff detrimentally rely? Was the discontinuance otherwise reasonable? Interference w/Rescue Efforts One may not negligently interfere with anothers efforts to give aid Intentional interference even more likely to give rise to liability Ex. Carelessly injuring rescuer or ripping band-aids out of rescuers hands