11/12/11

Saturday, November 12, 2011 3:46 PM

Intentional - ALWAYS need intent Battery RESTATEMENT - intent to cause harmful or offensive contact and offensive contact directly or indirectly results PICARD - act intended to cause and in fact did cause offensive contact with unconsented touching of or trauma upon body of another, thereby generally resulting in the consummation of attack (includes any object attached to P's person_ Definitions Intent VOSBURG - social context matters (playground v class) & egshell P from battery, regardless of foreseeability RESTATE 2 s13, cmt c - intentional joke liable unless consent Mere knowledge and appreciation of risk not same as intent; CROWDED WORLD can determine permissibility of touching - WALLACE Substantial certainty that actions will cause harmful/offensive result Age only matters to determine what knew with substantial certainty - GARRATT - 5 yrs, 9 mos Harmful or offensive contact (need not be physical harm)- objective test - "ordinary person not unduly sensitive" (WISHNATSKY) WISH - RESTATE cmt c s.18 - need not be directly caused by act of actor and may include offense to reasonable sense of personal dignity without physical harm RESTATE cmt a s 19 - reasonable sense of personal dignity = not unduly sensitive as to personal dignity (social usages at time and place inflicted) Consent (also under defenses AND consider defenses to overriding someone's consent, e.g., asymmetric info) - no right invaded by permitted touchings, even if unintentionally harmful (STATE FARM no payment for punch to testicles because of history when drinking + no battery Affirmative defense vs. built in to P prima facie case - Civil procedure implications - see definition of battery Objective standard - 1) overt acts and manifestations; 2) surrounding circs (CUNARD) Not effective when no capacity to consent Implied consent may be deemed when 1) emergency procedure required and no opportunity to obtain consent from 2) fully conscious 3) informed 4) contemporaneous decision (WERTH - religion affected reasonableness determination re: "offensive") Separate side-note - RESTATE 892D - privilege to render emergency assistance to unconscious or endangered before opportunity to obtain consent (E111) Infancy, intoxication, mental incompetence Capacity to understand and weigh the harm and risks of harm against benefits from propsed conduct Cannot be obtained through fraud or misrepresentation (NEAL) Liable for injury lying outside scope of original consent (BARBARA A - "can't possibly get anyone pregnant") No consent when person mistaken about nature and quality of invasion intended by conduct (mistake must extend to essential character of act itself, or that what makes it harmful or offensive; not just collateral matter to inudce)
i. Woman consenting to intercourse may recover for contracting STD ii. Consent to sex but given counterfeit $ is still consent to sex and not rape iii. Possible for court to only hold that mistake vitiates consent when touch could not be deemed to be in any way offensive or indecent, under facts as they were assumed to be: 1) Consent to sex believing mock marriage was valid = invalid 2) Consent to sex out of wedlock procured by promise to marry = valid iv. Battery found when surgeons did not disclose consequences known to be certain, but otherwise rare (more negligence P121)

Touching PICARD - Restatement 18: Unpermitted and intentional contacts with anything so connected with the body as to be customarily regarded as part of the others personis actionable as an offensive contact with his person. Punitives for "disgraceful indignities" (ALCORN) No need for proof of pecuniary loss or actual physical harm (ALCORN) Size and object do not matter, BUT odors, smokes, gases traditionally treated as intangibles FORK on second hand smoke as battery - LEICHTMAN - intentioanlly blowing cigar in face offends reasonable sense of personal disgnity and is "offensive" by reasonableness (using social context as objective measure) std Assault Definition 1) Physical act of a 2) threatening nature or 3) an offer of corporal injury that puts an individual in 4) reasonable fear of 5) imminent 6) bodily harm (PICARD) Restatement 21 approach - 1) intent to cause 2) harmful or 3) offensive contact or an 4) imminent apprehension thereof, and 5) another is put in imminent apprehension Definition 1) Physical act of a 2) threatening nature or 3) an offer of corporal injury that puts an individual in 4) reasonable fear of 5) imminent 6) bodily harm (PICARD) Restatement 21 approach - 1) intent to cause 2) harmful or 3) offensive contact or an 4) imminent apprehension thereof, and 5) another is put in imminent apprehension "Intent" - subjective state of mind, but judged on objective evidence May be based on: DEF's purpose, or Substantial certainty that one's action will cause a harmful or offensive result (GARRATT V DAILEY - but battery) Intentional does not necessarily mean 1) bad motive or 2) conscious that committing a legal wrong Ex. Physician treating patient against will (good motives and erroneous belief he is acting rightfully will excuse his intended touching against patient's will) "Act" - external manifestation of will (RESTATEMENT 2 Involuntary spams, movements during sleep, etc are not acts, but quick reaction to emergency is (act has no moral content) "Reasonable fear" - mental, rather than physical invasion for assault Apprehension (judged by objective standard) must be Reasonable or well-founded DEF must have apparent present ability to complete the battery Words alone, without accompanying action, cannot count as assault - Criticism - all words occur in social context, so never "words alone" + apparent reality of threat matters - Restatement 31: "words do not make the actor liable for assault unless together with other acts or circumstances" May allow words alone + circumstances (E28) Examples (Prosser 43): - shaking a fist under another's nose - aim or strike at another with a weapon, or hold in a threatening position - Rise to advance to strike another - Surround with display of force - Chase in hostile manner - Lean over a woman's bed and make indecent proposals, in fear-invoking way "Imminent" Restatement 29 cmt b: "imminent does not mean immediate, in sense of instantaneous contact...means that there will be no significant delay. Not necessary that one shall be within striking distance of the other, or that a weapon pointed at the other shall be in a condition for instant discharge. It is enough that one is so close to striking distance that he can reach the other almost at once, or that he can make the weapon ready for discharge in a very short interval of time" (E26) Future danger not enough (not as intimidating + can take steps to prevent; e.g., go to police) "I will kill you in 3 weeks" is not enough for liability Conditions to threats are no defense, unless privilege to insist on condition, e.g., leave property or else Judge based on demonstration of actual intent (not "if you weren't an old man, I'd beat you up) vs. "if you don't get off this track, I'll do X" Reasonable person standard Prosser FORK? (p44) Says if DEF has knowledge of timidity and intends to act upon it there should be right to recover and Restatement (Second) Section 27 agrees???, but no cases and goes to IIED - Restatement 19 caveat - "no opinion as to whether the actor is liable if he inflicts upon another a contact which he knows will be offensive to another's known but abnormally acute sense of personal dignity (E17) Need ability to

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 Need ability to carry out threat, e.g, no assault if too far away to make contact, or preparing alone (bring gun to meeting) False Imprisonment Defintion - "unlawful restraint of an individual's personal liberty of freedom of locomotion (2nd Restatement 38-41) Ways to establish required confinement: Actual or apparent physical barriers Overpowering physical force or submission to physical force Threats of physical force Asserted legal authority Other duress Some cases where freedom of motion surrendered because of force directed against valuable property (e.g., purse taken) - BUT WARREN V PARRISH (Mo. 1969) - Prevented from driving home is not prevented from going in some alternative way. Other claims = conversion of car, IIED. Different from store manager grabbing purse to induce someone to stay; in this case, station owners did not bar from leaving, just using car as collateral (E85). Test (PARVI) 4 elements necessary 1) DEF intended to confine PLTF - Omissions and preexisting duties (i.e., prison guards failure to let prisoner go after sentence is up) - Actual or apparent physical barriers Sufficient to submit to apprehension of force reasonably to be understood from DEF conduct, even though no force used or expressly threatened. PLTF not required to incur risk of personal violence by resisting until actually used Restatement 68 - privilege to use self-defense to escape, e.g., smaller person holding you, but Restatement gives choice not to. Could submit and sue for false imprisonment and battery, or break loose and sue for battery. Restatement does this to discourage violence and allow someone to acquiesce and later sue for false imprisonment (E88). Imprisonment may entail restraint in open street; traveling car; confined to entire city; or compelled to go along with DEF Must be fear for safety or threat for loss of job or physical restraint; moral pressure or threats for future not enough unless sufficiently near (need IIED for that) Total confinement (SHEN - not whole country) Intent required? Think back to assault (must intend (includes substantial certainty) to threaten) and battery (murky - Prosser and Keeton split on unpermitted contact vs. only intent to bring about contact) + "mistake" is not a defense The actor must have actual or legal intent to restrain if they didnt actually mean to be intimidating yet performed an act that the reasonable person would find intimidating, probably still on the hook No excuse for false imprisonment when use probable cause and mistakenly exercise otherwise-legal restraint on an individual. (BRIGHT V AILSHIE) No proof of actual damage needed (descendent of trespass) 2) PLTF conscious of the confinement (leave to jury) a) Keeping people where they do not wish to be, or preventing from leaving Restraint must be total (not mere obstruction of right to go where please) FORK BUT Restatement 36 illus.5: person not required to make means of escape "if circumstances are such to make it offensive to a reasonable sense of decency or personal dignity," e.g., locked out of dressing room and naked and forced to go through hallway with members of both sexes (E86) 3) PLTF did not consent to confinement 4) Confinement not otherwise privileged Hornbook: Reasonableness to determine what was understood and implied by DEF conduct, e.g., tone of voice, etc for jury to decide q of fact Privileges Initial consent does not preclude, nor does apparent consent Possible except ion for "good imprisonment" (deprogramming cases with parents and cults; PETERSON - as long as eventually consents v. EILERS - apparent consent is no defense) Privilege to detain a customer to investigate apparent shoplifting COBLYN - suspicion must pass "reasonable to the reasonably prudent man test" Arrest when crime in fact committed - no excuse for mistake though (BRIGHT) Policy BRIGHT V AILSHIE - regime raising the economic costs of bounty hunting (by holding liable for wrong warrant) is same as regime for strict liability - even though no fault, you should pay via cost of doing business + if there's any way to avoid paying, you will Idea - control bounty hunters for public good IIED - Intentional Infliction of Emotional Distress One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another (Rest. 2nd Section 46) Compare to nuance in battery of PICARD with it FORK - some courts use it; some don't Serves as catch-all/new cause of action in cases like Lopez false imprisonment Definition of IIED: 2nd Restatement 46 One who by extreme and outrageous conduct intentionally or recklessly (i.e. known or should have known what would happen) causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm. Intentional or reckless conduct Outrageous conductexceeds all bounds of decency tolerated by a civilized society Severe emotional distress Mere insults are never outrageous unless Humiliated in a public place Repetitive or continuous conduct D is a common carrier or innkeeper P is a member of a fragile class (Young child, Elderly, Pregnant) Hypersensitivity is not enough unless D knew of and exploited the sensitivity

- Defenses to intentional torts Consent Legal capacity to consent Express Actual words spoken or written Exception: duress, fraud, mistake Implied Custom and Usage (i.e., football; hockey) Ds reasonable interpretation of Ps objective conduct Exceeding scope of consent makes you liable for the tort Self Defense; Defense of Others; Defense of Property (Protective Privileges) Timing: D acts when the invasion is imminent or in progress (no revenge) Accuracy: Reasonable belief Limitation: D must limit to the appropriate degree of force Never use deadly force for defense of property Necessity Property torts only Public D invades Ps property Emergency Protect community or significant group of people (savior of the public)

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Protect community or significant group of people (savior of the public) Absolute defense Private D invades Ps property Emergency Protect Ds own interest Not an absolute defense D must pay for actual harm caused D not liable for nominal or punitive damages P/owner must tolerate presence on land during emergency (sanctuary until emergency is over) Trespass to Land Intent to go to the challenged location (whether D is aware or not that property is private) Act of physical invasion (i.e., throwing a rock onto land of another) Land (air above and soil below where owner can use the space) Stupid Golfer is a trespasser; Bad golfer is not a trespasser Trespass to Chattels & Conversion Deliberate interference with personal property Interference means damages or taking Small interference = trespass to chattels Big interference = conversion Conversion: P gets the full value

Negligence RESTATEMENT 3 - Does not exercise reasonable care under all the circumstances Consider:) the foreseeable likelihood that the person's conduct will result in harm, 2) the foreseeable severity of any harm that may ensue, and 3) the burden of precautions to eliminate or reduce the risk of harm. Breach - if duty exists, failure to use ordinary or reasonable care (b<pL) (US V CARROLL TOWING) For pure accident, harm lies where it falls because all innocent (ADAMS V BULLOCK - unavoidable accident with all reasonable precautions; trolley wire) Rule Reasonably prudent person under the cirumstances Objective standard Acts Identify Ds wrongful conduct Determine whether D acted unreasonably Res ipsa loquitor Accident does not normally occur absent negligence Rule out other defendants Standard of care - objective (VAUGHAN V MENLOVE - man of ordinary prudence) b<Pl Policy for objective standard (A56) Too much variation with subjective - more difficult factfinding in individual's head Response - have to do intent in battery cases... Fraud and deception Incentivize care by DEF Policy for b<PL(A65) Treating as merely economic replaces "reasonable" with "rational" and ignores moral values trying to promote; but at same time, reasonable prudence avoids accidents "worth" avoiding, so it's all attempt to determine which risks we'll tolerate (A65). Policy on rephrasing this as choice between injury and money Econ efficiency may not be highest goal Still, law can't completely ignore ideas of resource allocation Ethically wrong that econ theory requires quantitative valuation of human safety and life Still, only way for jury to compensate Unrealistic to put monetary value on human safety Still, no alterantive. Would likely be another replacement measure of value. Money is practical in that it recognizes today's incentives Adjust standard of care for Complete physical unconsciousness Emergency doctrine (mental state matters here) (PEERLESS TRANSPORTATION - cab robbery) P didnt create emergency Sudden and unexpected (no reasonable opportunity to think) = show "honest exercise of judgment" (LEVEY v DENARDO) Note FORK - some states don't give special emergency charge like LEVEY, but just scale to circs Also, some emergencies must be anticipated, e.g., appearance of persons at intersections when driving (P197) ALSO DEFENSE to party suddently confronted with peril (car accident cases) Dangerous instrumentalities FORK WOOD v GROH - "highest degree of care" where ammunition kept in same location as gun Scale to circs (boiling water) Children 4 or under = no negligence because not capable of realizing that conduct could foreseeably lead to injury to another - ELLIS V D'ANGELO, but YES battery 4-18 - standard of care of reasonable person of like age, intelligence and experience under circs (GOSS v ALLEN - 17 year old skiing) Adult standard of care if engaging in activity dangerous to others and 1) only done by adults, 2) adult qualifications required (GOSS - RESTATEMENT 2 283A cmt C at 16). Superior ability Doctrine - for skills licensable and learned, have to meet standard of care of that profession or skill set if engaging in the behavior May adjust under circs like emergency doctrine, but held to higher standard to begin with Idea - you should have same level of fear of failing as average person, so scale up the standard; hold to standard of license if you have one. Ex: Doctor held to standard of reasonable doctor in malpractice suit Scales to community too, e.g., doc in rural town vs. urban Reasonable to have exploratory surgery where less invasive means not available, but not where they are (E126) Or for general practitioner to take antitrust case in area where there aren't any antitrust lawyers vs. Dc (E126) Infirmities and limitations (doctrine: whether mental or physical, really difficult to get different standard for reasonable care) Poor judgment doesn't count (VAUGHAN V MENLOVE) P failure to take ordinary precaution doesn't make a D negligent (MCCARTY V PHEASANT RUN) Driving doctrine - sudden physical infirmity = no liability Fainting = no liability; not strict liability Driving with fuzzy eyes - ordinary person standard Cerebral hemorrhage - "clouds or impairs consciousness" - NOT TOTALLY UNCONSCIOUS - so ordinary person standard (ROBERTS v RAMSBOTTOM) Sudden onset of mental deficiency - BASHI - ordinary person standard kids fighting in backseat of car-->accident. Distinguish LEVEY and show how it's BASHI?

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Distinguish LEVEY and show how it's BASHI? No punitives because no deterrence and mentally incapacitated or deficient Policy : Tough to draw line between mental disability and variations in temperament, intellect, emotion Ease of faking + unsatisfactory evidence Liability incentivizes caretakers to take better care Doctrine - heightened standard of utmost care, not reasonable care, for innkeepers, common carriers (historical accident) Matters re: jury instruction Knowledge (Robinson - jaywalking?) 1) Unless attention is legitimately distracted (jury question, normally) May be negligent in failing to look, or in failing to observe what is visible when does look (P182) 2) Memory - which would make such an impression upon the standard person and, unless startled or distracted for sufficient reaoson, bear them in mind for a reasonable length of time (P182) 3) All adults should know: law of gravity, fire burns, water will drown, that inflammable objects will catch fire, that loose board tips when trod on, ordinary features of weather, etc (P183) i) About self, should know: amount of space occupies, balance and leverage applied to own body, effects of his weight, limits of his own strenth and elementaary rules of health (P183) 4) May be negligent for proceeding in face of known ignorance, e.g., attempting to give medical treatment as layman; driver going with mysterious wobble in front wheels 5) May be engaged in activity imposing obligation to investigate and find out so doesn't remain ignorant. i) Manufacturer of goods sold to public, occupier of premises inviting businesses to enter, carrier who transports passengers all have duty of affirmative action which would be taken by reasonable person in their position to discover dangers of which may not be informed...changes with scientific advancement too (P185) a. Anticipating conduct of others a. Must expect that horses unattended on road may become frightened and run; bees disturbed may sting; persons who are ill or drunk may wander into places of danger (PARVI); persons in position of peril will attempt to escape and may harm selves or others to do so (EILERS V COY?) (P198) b. Still, free to proceed on asumption that others will exercise proper care, e.g, motorists obey traffic laws. c. B < PL duty arises where reasonable person would recognize the existence of an unreasonable risk of harm to others through the intervention of such negligence (P199) a) May be required to guard insane patient from jumping out window; or letting drunk drive (P199) b) Child may play with a turntable (KAYENBUHL) or run into street 1. Could be negligence to entrust with a gun (or leave in place where likely to come and easily find), allow to drive, or throw candy will crowd of boys will scramble for it 2. Even cases where street vendors liable for drawing into the street (P200) d. Under ordinary circumstances, not reasonably to be expected that anyone will break law or behave irrationally (P201) e. Re: vicarious liability, no general rules, but take into account: i) Competence and reliability of person upon whom reliance is placed; person's understanding of situation; seriousness of danger and number of persons likely to be affected; length of time elapsed; likelihod that proper care will not be used and ease with which the actor himself may take precautions f. Misstatements or speaking without exercising proper care to ascertain the truth may lead to liability for negligent use of language when PLTF relies on assurance and suffers injury, e.g,. Doctor saying not contagious, seller of dangerous article who misrepresents safety (P205-206) a) Circumstances must be such that DEF under duty to PLTF to exercise reasonable care in giving information and reliance upon what is said, with resulting danger, is reasonably to be expected (P207) 1. Assurance from casual bystander asked for opinion not enough (P207) b) Failure to disclose existence of known danger may be enough too, e.g., surgeon silent about leaving sponge, landowner permitting one to enter without warning of hidden danger c) RESTATEMENT 2-311 - negligent misrepresentation - 1) one who negligently gives false info to another is subject to liability for physical harm caused by action taken by other in reasonable reliance upon such information, where harm results to the other (GARCIA V SUPERIOR COURT) Sometimes, abandon idea of uniform rule as futile or dangerous - extraordinary situations may not be fairly put to general tests (P218, POKORA) Must take into account the signals, visible and audible, in determining expectations of a reasonable person to determine negligence. ANDREWS V UNITED AIRLINES - Holding: Jury should decide when well-suited in a given way, e.g., whether the hazard serious enough to warrant more than warning from airline + jury experience as passengers ) - summary judgment held inappropriate - Involves reasonableness as a question of fact BUT ATKINS School district may favor clarity of rule, rather than standard for jury determination because can change behavior and rely on apparent predictability Judges should decide when case involves reasonableness as a question of law Custom may guide jury on how to define "due care". When proof of a customary practice is coupled with evidence that it was ignored and caused accident, this may establish liability, but not dispositive by itself (ALSO see custom and neg per se) Test: Need not be universal, just clear enough that actor can be charged with actual/constructive knowledge Must be reasonable Ex - jaywalking can be customary negligence...therefore unreasonable (P194) Can it be customary to have technology that it patented, such that it is required for reasonableness? Roofer falls - relevant if roofers ordinarily wear safety harnesses on that type of building (E125) Not conclusive merely because it is custom, but must meet challenge of "learned reason" and be given only the evidentiary weight a situation deserves (P195) May be evidence of reasonableness or even of foreseeability of risk. PLTF entitled to point to custom as evidence that others take a precaution so it's reasonable to take. DEF may point to it to justify behavior. Policy - may also show what's feasible and may lead to jury finding whole industry negligent Actor's own record of past conduct is "habit" not custom and is no evidence of any standard of reasonable care But when actor departs from it, may be used against him as indicating knowledge of risk and precautions necessary to meet it Occupiers of land a. Premises liability test from turntable case: 1) In determining negligence, focus on a. 1) character and location of the premises, b. 2) purpose for which they are used, c. 3) probability of injury therefrom, d. 4) precautions necessary to prevent such injury, and relations such precautions bear to beneficial use of premises (CHICAGO B&Q V KRAYENBUHL) 2) E.G., danger can be lessened by a simple change - use of a lock. Reasonable expectation that children will play on a turntable and endanger themselves, then liable for neg for failing to take adequate precautions to prevent them from accessing it (CHICAGO B&Q V KRAYENBUHL) JZ - premises liability - responsibility for your property Commercial establishments owe duty of safety to shoppers, but that may conflict with lack of special relationship/duty to control 3rd party How harmed D's activities on property Hazardous condition on property P's status Undiscovered trespasser - never owed duty of care; can sue under intentional tort Discovered/anticipated trespasser Activities - owed a duty of reasonable care Conditions - owed a duty of reasonable care if known, manmade death trap on land Artificial condition Highly dangerous Concealed from trespasser Occupier had advanced knowledge of conditions Licensee/social guest Activities - owed duty of reasonable care Conditions - owed duty of reasonable care for all known traps Occupier knows Licensee unilkely to recover Firefighters and officers (licensees) may NEVER recover from injury inherent in the job

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 Firefighters and officers (licensees) may NEVER recover from injury inherent in the job Invitee (open to public) Activities - owed duty of reasonable care Conditions - owed duty of reasonable care for all reasonably knowable traps on land Concealed from invitee Owner knows in advance or Owner could discover with reasonable inspection Child Trespassers owed a duty of reasonable care Hazardous Conditions: Duty met if hazardous condition is fixed Duty met if P is warned Statutory Standards of Care (Negligence Per Se) Borrow the statute that D violated to establish the duty and breach P must be in the class of person protected by the statute Injury must be in the class of risks sought to be avoided by the statute Exceptions: No statutory standard of care if Compliance with statute would be more dangerous than a violation Compliance is impossible under the circumstances

Negligence distinct from intentional torts

Duty to exercise reasonable care that is not violated by doing "a common and simple act in plain sight of those around." (GREENE V SIBLEY) TOPPS V FERRARO + ZITTRAIN'S BOOK (and see BENGALS case) Avoid strategic problem by pleading negligence instead of battery: one who intentionally hurts someone also fails to exercise a reasonable standard of care as to the other's safety Could be strategically difficult in front of jury though.

Negligence per se - pair with reasonableness analysis/look to excuses in every hypo

This is the standard of care and because you violated it, you breached. Now, I'll show causation, etc Or contributory negligence kills whole case. Or comparative negligence allows jury to apportion fault if both both breached. JZ - on the one hand, Cardozo's words re: it is the standard; on the other, the jury is apportioning fault (almost has to be more than 0, but could be low so as not to undermine the idea of neg per se) Courts adopt law itself as the standard of care where a rule of behavior is laid down by law (for purposes of safety and perhaps as part of the criminal canon). Not only basis for inference like res ipsa, but it's about judge's decision herself and 1) DEF loses case altogether if causation shown; or 2) depending on jurisdiction, PLTF loses because contributory negligence extinguishes the case SECOND RESTATEMENT - Statute or reg may set the standard for behavior when purpose is at least in part to: Protect the safety of someone like the claimaint Against the sort of harm that happened Test for neg per se: Statute interpreted as designed to protect class of persons in which PLTF is included (RUSHINK) and against risk of type of harm with has occurred (PLATZ; BROWN; Breach is established No sufficient excuse (MARTIN V HERZOG? 230) Unavoidable accident hypo; swerving to avoid deer; necessity defense (all maybe even possible within Cardozo's language in paragraph 15) So, there are still questions of causal relation between violation and PLTF harm, and defenses of contributory negligence, and assumption of the risk for NEGLIGENCE (cap N) And may need to show that "last clear chance" doctrine doesn't apply - no reasonable juror could have found that driver could have avoided accident once he saw appellant Res ipsa takes an easy case and lets you argue about it to a jury (makes it hard) Neg per se takes a hard case and makes it easy (not in hands of jury either) Proof of statutory violation creates presumption of negligence, but violator still free to rebut by showing reasonable person would've acted as did; most still hold that burden of proof remains on PLTF (if DEF offers no evidence of reason for violating, PLTF can win) Compliance is evidence of due care, but not dispositive (P233) Type of harm LICENSES - PLTF may only recover for the failure to exercise skill and care that caused her injury, for which evidence of training, learning, skill and methods is relevant, but not licensure (BROWN V SHYNE) Intent of license requirement is to protect general public against injury caused by unskilled practitioners, so a cause of action of negligent care is unrelated to this; Can't tell jury at all about licensing violation - DEF held to standard of care of a physician License gives no additional skill or immunity from physical injury if practitioner fails to exercise care. Dissent - violation of statute is direct and proximate cause of injury; if someone takes chances trying to cure disease wihout qualifications and license, he should not complain if the law says his violation of the statute is evidence of his incapacity Under this opposite view: license is still just a proxy for the actual harm of mistake in surgery; becomes like strict liability regime. if RR violates statute for public peace, morality and quiet, rather than safety by running train on Sunday that kills someone, cannot be found liable on that violation alone (223) Snow and ice removal for benefit of municipality or person avoiding a fall? (223) Auto registration is for revenue and do not make driver of unlicensed car liable to those with whom he collides if otherwise careful (223) Train whistle has no effect on a cow? (224 Protected class RUSHIINK - Statute meant to deter theft and injury caused by unauthorized driving, not to protect unauthorized users NO NPS, but possibly common law negligence building code may be intended to protect occupants, not workers constructing it; firefighter injured fighting fire in building without sprinklers (E150) factory providing for guarded machinery may only be intended to benefit employees; RR whistle only for crossing and not parallel traffic; rule of highway may not be for those on sidewalk or policeman pursuing a violator; regs governing land or buildings don't protect trespassers (224) EXCUSES/AVOIDING (but still need to have been "reasonable") - "If the statute is so obscure, outdated, or arbitrary as to make its adoption as a standard of reasonable care inequitable", trial judge may exercise discretion (SWEET V SISTERS OF PROVIDENCE) It's not just about making a reasoanbleness argument to the judge though - JZ you have to point to some basic fact that would convince anybody (higher threshold) ROBINSON case on jaywalking may have gone other way if corner was particularly dangerous and she showed reason to cross in middle of street (need something undisputed to point to that changes the dynamic) Distinct from TEDLA (though TEDLA was a close case) - the fact that everybody agreed that rush hour and muddy area between lanes changed the dynamic Where violations of law are common practice or where a reasonable person might also violate, these violations are not excused (ROBINSON V DC, Jaywalking Custom, 1990) LEIKEN standard requires that DEF make a reasonable attempt to comply with the law, which did not occur here. Generally, violation will be excused whenever it would be more dangerous to comply with the statute (TEDLA V ELLMAN - walking on right side of highway when heavy traffic on left) (229) RESTATEMENT 288A illustrative ex: Can violate letter where physical circs beyond driver's control, e.g,. Lights go out suddently at night or brakes fail; When emergency, e.g,. One way is blocked or swerve across center line to avoid hitting child; (228; E146) Situation where may be neg to obey literal terms of law Incapacity, e.g., actor is a minor and cant comply with usual std of care Lack of knowledge of need to comply, e.g., driver's tail light goes out when driving Applies to knowledge of FACTS, not the law. Ignorance of the law is never an excuse (E157) Inability to comply, e.g., blizzard makes impossible to keep rr clear of snow Compliance poses greater risk than violation, e.g., pedestrian walks with back to traffic with heavy traffic going other way Still need to show acted reasonably under circs

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Vicarious liability - every hypo - 1) follow the money and attach, 2) then other reasons to bring in (negligent parenting, negligent hiring, neg entrustment, neg misrep, etc - CAREFUL - employee behavior, record on job, etc only matter for this, not vicarious)
Employee or IC? Action within scope?
Common vicarious liability - "respondeat superior" where an employer is liable for any actions under an employee's scope of employment (hard case - when does "employment" occur, on lunch break away from work, club owner pay for injuries when bartender beats up customer who refuses to pay?) Keep eye out of vicarious contribtory negligence Imputed negligence - A's negligence could be charged to B, even though B had no part in it (499) Imputed contributory negligence - B, in action against C for his own injuries, barred from recovery because of A's negligence, just as if B had been negligent himself Principal-agent (e.g., actual or apparent agency) SUE BOTH EMPLOYEE and EMPLOYER + not joint tortfeasors (E523) Animals can't commit torts OMISSIONS COUNT - employee negligently performing duty, e.g., NOT doing it/leaving a machine unattended, is an omission that employer may be liable for (E529) Policy To distinguish between purely personal torts and ones for which company responsible "Leading to the [right level of] future injuries" "...at least partially in the employer's interest"? "Assure compensation" "Spread losses" That employer, by profiting from what knew through past experience would harm, should bear costs; better able to absorb and distribute through prices, rates or liability insurance to public, therefore shifting costs to society at large Plus, incentivizes to take precaution to see that enterprise conducted safely (501) Public policy argument for non-delegable duty May be imposed by statute, contract, franchise, common law, e.g., common carriers, RR to fence tracks and have safe crossings, municipalities to have repaired streets, lateral support to adjoining land, don't obstruct public highway, keep premises safe, landlord to maintain common areas, etc (511-512) Owner of land who entrusts work on it to contractor is liable for any negligence when he retains possession of land, but not during the work (512) No real criterion; just importance to society Test - "1) within scope if of the kind he is employed to perform,2) occurs substantially within the authorized limits of time and space, and 3) is actuated, at least in part, by a purpose to serve the master " Anchor for all these cases = employee relationship = When employees act on behalf of the company, theyre the company NOT the case for hypo of diagnosing machine at hospital because not a person. Then BIRKNER factors (from Christensen lunch break case): Conduct must be of general kind employee hired to perform (not wholly involved in personal matter) Reasonable could differ - part of job was to "see and be seen" and went in uniform to caf at plant vs. not hired to get lunch Tacitly sanctioned - must eat, employer aware, never sanctioned, menu posted in plain view at gate Conduct must occur substantially within hours and ordinary spatial boundaries of employment (so, no "goings and comings" unless BUSSARD harm arises from work) During working hours, at post to use lull to eat Not on employer property when accident occurred but within geographic area accessible during break Dispute of fact over whether allowed to use own car Conduct must be motivated, in part, by purpose of serving employer interest Breaks benefit both employee and emploiiyer Short break called for speed/efficienciy - driving saved time and returned immediately "happiness" + return immediately afterward policy would allow vacations, weekends, etc to mean employees still in scope of employment (all the time, essentially). Reasonable mind could not find those within scope (MILLER) If force, "not unexpectable" = intentional tort = a vicarious liability relationship plus "not unexpectable" behavior (Sage hunt club - "shadow of intentional tort") Liable where purpose, even misguide=further master's business, e.g., bus driver pushing competitor bus to ditch; salesman fraudulent statements about what selling; defaming competitor; falsely imprisons; malicious prosecution; RR ticket agent who assaults passenger believing he gave counterfeit bill No liability if completely on own motives, e.g., over wife or something unrelated to employment, departed and no liability (506); also where conduct is unprovoked, highly unusual, outrageous Even there though, common carriers and innkeepers with responsibiltiy to protect passnegers against assaults, may be liable if servant assaults (506) Trend-->tendnecy to allow recovery on ground that employment provided opp and even incentive for loss of temper (507) SAGE CLUB duties of bartender include collecting money, over which lost temper, and keeping order at bar and removing disruptive customers, which he did Prohibition is evidence, but not conclusive (can't say, "act carefully" and avoid liability; or tell clerk never to load gun and be free if clerk does trying to sell it; servant doing own thing to accomplish means liable) Peculiar risk of certain kinds of work may be held as vicarious liability if courts can to make employer absorb costs while others may not to emphasize personal motivation of tortfeasor, e.g., sexual misconduct in medical care cases (E516) BUT see KUEHN WA rule upheld - employee who willfully and for own purposes(purely personal) violates rights of another is not acting in furtherance of employer's business (outside scope). Only if expressly conferred or fairly implied from nature of employment and incidental duties, e.g., where servant authorized to maintain discipline and disputes likely. ZITTRAIN BOOK (93) Construe act narrowly (striking) and it looks like not vicarious; construe act broadly (bartender responding to patron for X) and it looks vicarious. Construe employment broadly or narrowly re: duties and get different results too Would outcome have been different had he not ejected from bar afterward? DOCTRINE CASE; shadow of intentional tort Dangerous instrumentalities (BUSSARD)- tendency is strict liabiilty when instrumentalities are extremely dangerous in themselves, so employer liable even if entrusted to indep contractor (507) Inherently dangerous activities - construction sites, keeping vicious animals, high tension electric wires, blasting, fireworks, maybe crop dusting (513) - all dangerous despite reasonable care Extended to work on chimneys, constructing dam, controlled fires, etc - appears to be limited to work with high degree of risk in relation to surroundings or specific risk recognizable in advance Often emphasizes " peculiar character of the risk" and need for special care (514), e.g., hiring a trucker must realize truck could be driven too fast or with bad brakes is normal standard of negligence, but maybe special care with giant logs need to fastened securely (514) Collateral negligence - employer liable for risks inherent in work itself and not for "collateral" or "casual" negligence on part of contractor (515) Related to inherent danger, but hard to parse(515) Going-and-coming exception: When employee endangers others with risk arising from or related to work (foreseeability test = "conduct that is neither startling nor unusual"), the employer is vicariously liable for her negligence Ex - liability for car accident afer drinking at work with permission Lower bar than negligence - so employer need not be negligent to be liable Apparent agency (contractors - "backstop Roessler: Test): Representation by purported principal Reliance on that represneation by 3rd party; and Change in position by third party in reliance on representation RESTATEMENT TORTS 429

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RESTATEMENT TORTS 429 Employ a contractor Services acceped "...with a reasonable belief that they're being rendered by the principal" RESTATEMENT AGENCY 267 (need conduct; tougher than TORTS) Principal, by conduct, causes PLTF to reasonably believe that services are rendered by principal PLTF justifiably relies on that belief (mistake in head of PLTF because of DEF's representation) Nondelegable duty RESTATE 2d - nondelegable duty if work involves inherent danger or requires special precautions ("peculiar risk" cases) (E518) ROESSLER - Concurrence - need a predictable rule and not a standard, so make hospitals vicariously liable as general rule where patient cannot and does not realistically have ability to shop open market/negotiate (theory of nondelegable duty) Dangerous instrumentalities (BUSSARD)- tendency is strict liabiilty when instrumentalities are extremely dangerous in themselves, so employer liable even if entrusted to indep contractor (507) Inherently dangerous activities - construction sites, keeping vicious animals, high tension electric wires, blasting, fireworks, maybe crop dusting (513) - all dangerous despite reasonable care Extended to work on chimneys, constructing dam, controlled fires, etc - appears to be limited to work with high degree of risk in relation to surroundings or specific risk recognizable in advance Often emphasizes " peculiar character of the risk" and need for special care (514), e.g., hiring a trucker must realize truck could be driven too fast or with bad brakes is normal standard of negligence, but maybe special care with giant logs need to fastened securely (514) Collateral negligence - employer liable for risks inherent in work itself and not for "collateral" or "casual" negligence on part of contractor (515) Related to inherent danger, but hard to parse(515)

Special liabilities of multiple DEFs (NOT RES IPSA; FIREMAN'S FUND - 4 smokers) (D381)
"Surgery cases"/caretakers - FORK & debated "Captain-of-the-ship doctrine for chief surgeon treated as temp employer of all others in OR and might be held liable for vicarious, not res ipsa. Nondelegable duty doctrine - hospital may be liable for acts of independent contractors on theory that some duties cannot be delegated (dissent in Roessler) *These two are different than res ipsa in that they don't hold nurses in OR liable Generally though, 2 people and not sure who's negligent is not a res ipsa case because need to have res ipsa tied to a specific DEF (E175 and FIREMAN'S FUND) FIREMAN'S Holding - NOT RES IPSA when there is no direct evidence as to particular DEF or instrumentality (close to YBARRA but not in hospital) Distinct from other cases where instrumentality or person causing damage was established. Shouldn't be able to recover for falling flower pot from all tenants of an apartment building unless innocents can ID the guilty When cause of problem under control of innocent as well as guilty, how should courts respond? Spoliation of evidence liability - milder than res ipsa - liable if have duty to preserve evidence and knowingly or negligently destroy it *Note - vicarious liability theories get close to idea of strict liability for anyone caretaking for infirm or helpless because of implicit terms of consensual arrangements but res ipsa coupled with joint control rule does not (D383)

Res ipsa Avoid summary judgment (doesnt mean will win, just gets past summary judgment) JZ - Shortcut when no evidence ("this doesn't normally happen unlesss there's a breach/negligence"), so PLTF gets saved from summary judgment and jury can infer negligence. Still need causation and DEF can defend. Res ipsa is estimating probability of unknown acts of neg, NOT inferring specific neg acts (373) Test (Prosser/BYRNE V BOADLE): Jury must conclude that neg was more probable than not the cause of injury 1) accident of the kind that does not ordinarily occur without negligence even though we don't know for certain what the negligence was; Not only conceivable explanation, but common knowledge points to negligence e.g., newborn matched with wrong mother; plane disappears without a trace in good weather; glass in can of spinach; oil spills from truck on highway (E168) 2) caused by agency or instrumentality within the exclusive control (ST FRANCIS HOTEL - NOT MERELY PHYSICAL CONTROL; YBARRA - "RIGHT OF CONTROL," NOT JUST "ACTUAL CONTROL") of the DEF; ESCOLA + plane caes - can get even if outside exclusive control if P can show used due care afer receiving product BUT see LARSON V ST FRANCIS HOTEL - Chair not under exclusive control of hotel; guests have some control and most logical inference is that someone threw it, so doctrine doesn't apply. Plus, no law requiring hotel to have guards in every room. Not only physical control, but right of control over instrumentality. Example cases: Explosion from leaking gas when DEF in ownership, control, mgmt of supply, flow, existence of gas Glass portion of electrolier fell -owned and maintained by DEF and wouldn't have fallen if under ordinary care Plaster from hotel ceiling Hospital exception(YBARRA) No need to show particular instrumentality; enough to show injury resulting from external force applied when unconscious in hospital Therefore, Exception to typical rule, specific for modern hospital (patient likely to come under care of number of persons in different types of contractual and other relationships with each other) Exclusive control SCENARIOS Eliminating fault of other actors can point probabilities to DEF ("serial control cases") Here, could point to multiple actors with evidence (neg in causing defect, neg in failing to discover it) manuf of contaminated food likely neg even though sold through store (D378) "Public access cases" - public access to instrument of harm may defeat res ipsa or, in cases where due care required, e.g., hospital wheelchair collapses, elevator malfunctions, auto door closes on you, one can claim res ipsa Banana peel cases - must offer circ evidence that it was there long enough for employees to have seen and removed it, e.g., dark brown, trampled from others walking on it (E165) 3) no contribution by PLTF Corrollary of this req - PLTF shows she was not responsible for, or not an active participant in her own injury. **subject to qualifications though (D370) PLTF may react to an initial res ipsa-inferred neg act and still not be liable (or just partially liable) for injuries. That's a separate question from the underlying/initial neg act (E185) Alt test (Wigmore) Res ipsa --force defendants to talk (to exonerate themselves, as in a case like Ybarra) YBARRA - 1) a DEF can produce evidence of the cause that only the DEF has; 2) DEF must be persuaded to share it when forced to with res ipsa trial threat Less of a problem now that trials have lengthy deposition and discovery periods. YBARRA - need 2 factors for the smoke-out: 1) at least one DEF must actually have knowledge about the true cause; 2) any DEF who does have useful evidence must be willing to lie in a depositoin, but tell the truth at trial (A101). Defenses Most effective - prove actual cause of accident (E173) Not in exclusive control - Others affected product after left my hands; evidence for other common causes If no evidence of exact cause, show exercised ordinary care (E173) But could backfire - if due care, then less likely accident would have happened if they had been followed, but accident did happen YBARRA - shifts burden of proof to DEF Policy reasons for res ipsa: Limited availability of evidence Sometimes may be more fair to shift burden Encourages DEFs to tell on each other

Duty
"Acting about the world," with some exceptions owes duty of reasonable care Conduct and risk (danger that should be apparent to actor), not intent Consider alternative courses and cost - risk-benefit standard Arises when

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Arises when You act intentionally (act about the world) Or your actions create a particular situation, e.g., subsequent realization of risk of harm (RESTATE 2-321); some is non-negligently harmed by your and needs help (RESTATE 2-322) [but one is not one's sibling's keeper] Unless: vicarious liability rules; parents & kids; negligent entrustment; negligent misrepresentation Otherwise, no action, no duty Unless: "special relationship," e.g., guest in home, common carrier and passenger, innkeeper and lodger, $ exchange, relied-upon promise, custodial relationships, reliance on proffered superior knowledge, joint social venture ("co-adventurers") If you attempt to come to someone's aid, you can't make his or her situation worse; If you attempt to come to someone's aid, you must carry through reasonably Preventing 3rd party from rendering aid D causes Ps peril preexisting relationship between the parties family common carrier and innkeeper invitees Reasonable rescue only (dont kill yourself to rescue another) Once you undertake the rescue, must finish the rescue UNLESS: You are a large utility company UNLESS You're the government Common cases without duty: Sovereign immunity Purely emotional harm or purely economic harm (think to how neg per se cases all based on underlying physical harm) Cases where harm is mediated through another person may mean no duty rule for upstream wrongdoer, e.g., bartender serving drinks to someone who causes a car accident Good Samaritan Statutes - reduce duty of care owed by health care providers when assisting at scene of emergency outside regular job (D663); Theory - encourage physicians to assist in emergencies, but due care should adjust to circumstances in common law negligence to protect them (D664) Policy ABRAHAM - common principles through cases (A238) DEFs are strategically placed to take precautions reducing risk of third party injuring PLTF (not enough though - look at social hosts not liable) Often, primary wrongdoer is judgment proof, so enabling defendant is source of payment Factors that get weight (E269) For imposing duty Foreseeability of harm , e.g., foreseeable that mental patient threatening to kill will, if released (E269) Morality - particularly persuasive if DEF is uniquely positioned to prevent harm, e.g., police officer who stops drunk driver (E269) Legislative policies, e.g., police duty to arrest drunk drivers (E270) Against imposing duty Duties that impose excessive burdens on actors, e.g., hospital warning all patients on risks of medications (better for doctor) (E269) Admin problems of enforcement, e.g., infliction of emotional distress for years because of risk of fraud and excessive litigation Chilling effect, e.g., college doesnt have duty to control acts of parolee admitted because would force discriminatory restrictions on people they wanted to reintegrate (E270) Categories of cases Action vs. inaction (MOCH, UNION PAC) - key for JZ - have to "become part of the situation" Special relationship (HARPER, MENU) Duty to 3rd parites (REST 2-311, RANDI W. Joint social venture (FARWELL v KEATON) Duty to control others (BROADBENT, TARASOFF, HAWKINS, EINHORN, BOYD, CHARLES, CUPPY) Action v inaction - If inactive, NEED SPECIAL RELATIONSHIP MOCH V RENSSELAER WATER CO - "Failure to supply water during a fire" - water company with contract with city. Told of fire destroying PLTF's warehouse, but did nothing even though equipped to supply water to stop the fire Should courts draw a distinction between inaction that has consequence of harm and positive action that creates harm? Holding - Failure to provide water is at most denial of a benefit, not commission of a wrong. Test - whether DEF advanced to such a point as to 1) have launched a force or instrument of harm, or 2) has stopped where inaction is actively causing an injury (14) Ex of latter - surgeon working without pay and without sterilizing instruments; engeineer failing to shut off steam; carmaker not making adequate inspection Maybe even if DEF withheld water or reduced pressure with malicious intent to injure, but not issue here Reasoning - slippery slope worry if liability extended indefinitely Ex -coal dealer if runs out of fuel Not always clear-cut - has DEF gone far enough to get into relationwith PLTF to affect PLTF's interests adversely and not just failing to confer a benefit (P375) Failure to blow a whistle or shut off steam treated as negligent operation of train Failure to repair gas pipe = neg distribution of gas Failure to heat a building = mismgmt of a boiler Physician who starts to treat and then neglects or abandons = breach of duty undertaken (P375) However, duty of affirmative action extended via public sentiment, custom, social policy changing Shifting for when PLTF is particularly vulnerable and dependent on DEF who holds power of PLTF's welfare, where idea is fairness - PLTF expects protection and DEF should use power to help PLTF (P374) Largest group with aff duty = owners and occupiers of land (more later, he says) Where performance clear has been begun, there is no doubt a duty of care (P380) Landlord who makes repairs despite no obligation has duty to exercise proper care; RY providing warning signals at crossing is liable if traveler injured in reliance on the usual and not provided Most often, DEF has made situation worse by 1) increasing danger; 2) misleading PLTF to thinking it's gone; 3) depriving of possibility for help from other sources Can't prevent aid by others UNION PAC - No fault in RR company for accident, so no duty to help PLTF as an individual. Allowing courts to enforce moral obligations through interp of law is dangerous. Compare to driving on road and hit someone in car (statute may need to create duty because per se is about breach?) Author of the risk Driver whose truck suddenly becomes disabled and doesnt warn oncoming traffic -- not negligent, but "author of the risk" and AFF duty to warn others of danger Actor who injured another, even without neg, AFF duty to render assistance to prevent further harm, e.g., hit with car Gratuitous Services exception - when DEF under no initial duty, goes to aid of another Took charge of another who was helpless? Exercised reasonable care? Discontinued aid and left in worse position? Policy - 1) could be precluding others from helping if you act (but don't need to prove that others were actually around); 2) don't want suits for unknown reason (not putting self in situation doesnt warrant legal liability) Special relationship - PREREQUISITE for liability from INACTION HARPER - SOCIAL HOST does not create duties to guests on that status alone. RESTATEMENT 2ND 314(A) - special relationship only if Herman had custody of Harper under circs where Harper was deprived of normal opps to protect self, or if a common carrier, or if possessor of land holding it open to the public; not here. "Custody" - "when PLTF is typically in some respect particularly vulnerable and dependent on the DEF (FN 2) P21 - superior knowledge of dangerous condition, WITHOUT DUTY TO PROVIDE PROTECTION, is by itself insufficient for liability; reasonableness doesn't matter in this duty question MENU - here is no special relationship between cab diver and PLTFs because cab 1) did not act affirmatively to induce PLTFs to rely on him, or 2) create a peril (none created by not calling police or transporting Menu) or 3) changed the nature of the existing risk Controlling intoxicated SOCIAL HOST + MINORS (majority rule - legislature preempts duty for social hosts; minority - liability , see below)

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 SOCIAL HOST + MINORS (majority rule - legislature preempts duty for social hosts; minority - liability , see below) Majority - Social host liability does not stretch to third parties injured by intoxicated minors --difference between social hosts and commercial vendors: social hosts less capable of monitoriing behavior + availability of insurance as alternative (CHARLES) Without legislative Act, duty? No special relationship. Minor at a party - yes, because in some way have custody (scale reasonableness to age), but adult is different. Minority - If host directly serves liquor to an adult social guest, knowing both that he is intoxicated and will after drive, she is liable for injuries to the third party as a result of the negligent driving when caused by intoxication. (KELLY v GWINNELL) Drunk driving friend WITHOUT special relationship 2d-315 - No duty to control conduct of third person from causing physical harm unless: Special relationship exists between actor and third person, which imposes duty to control third person's conduct, or Special relationship exists between actor and the other which gives the other a right to protection Cmt b is appropriate - if no special relation like those in a or b, actor is not liable if fails to exercise ability to control actions of a third person to protect another. Even riding in car as a guest and failing to get driver's attention when knows of danger and driver doesn't doesn't bring liability (p26) If there is a relationship - may stop when reasonable care given, unclear where that is 3rd parties - Action Action (distinguish from TARASOFF) - locksmith committed no intentional or negligent act directly on PLTF as guest of tenant. No special relationship between them, though landlord may be liable (dicta) as in past cases when tenant was victim of crime as a result of a defective lock (EINHORN). Negligent misrepresentation - RANDI W - duty not to misrepresent facts if it would present a substantial, foreseeable risk of physical injury to third persons. Misleading half-truths constitute misrepresentation in context where obligation was to disclose all relevant facts - California Supreme adopting RESTATEMENT 2-311 Need 311 because 1) just words; 2) distant party If HARPER had said positive things about the water before HERMAN dove, probably duty Availability of insurance (JZ - can't mention to jury, but can factor on appeal) or alternative courses of conduct - Yes, there's business liability insurance for negligent misrepresenation or nondisclosure AND here, alternatives could have included writing "no comment" letter or "full disclosure" letter RESTATE 2-311 One who negligently gives false info to another is subject to liability for physical harm caused by action taken by the other in reasonable reliance on such info, where such harm results to the other, or to such third persons as the actor should reasonably expect to be put in peril by the action taken. Such negligence may consist of failure to exercise reasonable care in ascertaining the accuracy of the information, or the manner in which it is communicated Joint social venture special relationship FARWELL Men were companions on a social venture and implicit in that is understanding that one will assist other when he's in trouble if he can do it without endangering himself All have legal duty to avoid affirmative acts to make a situation worse. If attempt to help and take control of situation, he is then liable for failure to use reasonable care for PLTF *JZ - set of holdings giving various alts to find duty - left worse off, co-adventurers...seem to settle most on latter. STD OF CARE THOUGH?? Dissent 1) only a physician would know of need for medical attention; DEF did not and should not have known of serious injury based on behavior; 2) Question of duty is a legal question, not factual (quoting Prosser): where such a relation exists to impose legal obligation for one on behalf of another is a question of law to be determiend by reference to statutes, rules, principles, precedents" (p73). where duty to rescue required, calls for nothing more than reasonable care under the circs and DEF not liable when doesnt know or sholdnt know of unreasonable risk or illness or injury (P377) Duty to control others or relationship with foreseeable victim (how particularized) + ALWAYS consider neg misrepresentation RESTATEMENT 2 316-318: An actor who knows or should have known that she has the ability to control the 3rd person and knows or should have known of the need for the action, comes under a duty to do so as to parent and child, master and aervant, poosessor land or chattels and user of land or chattels 319 One who takes charge of a third person whom he or she knows or should have known to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent her from doing such harm Inaction - RESTATE 3 - specifically includes mental health professionals and patients - Generally, no duty to control conduct of another or warn those endangered by such conduct, but special relationship with psychiatrist's patient gives rise to affirmative duties of therapist to third parties (TARASOFF) Exception to rule against duty to control: DEF in special relationship with either person whose conduct needs to be controlled (here, killer) or in relationship with foreseeable victim of that conduct (RESTATE 2-315-320) Amicus brief argues therapists can't predict future harm, but disregarded here because therapist knew intentions Theory Personal safety trumps confidentiality concerns for court Therapists should only disclose a confidence when necessary to avert danger to others and even then, discreetly and in way that protects patient's privacy to fullest extent can in preventing danger, but patient-psychotherapist communications do stop at essential disclosure to protect others. JZ - bartender hypo - no duty Inaction causing harm to third party - Physician's duty runs to identified third parties who physician knows the existence of, so no duty to Hawkins (later gets hep c) when he had not yet been identified or known to the physician at the time of diagnosis (p25 - HAWKINS) Cite case where doctor's failed to advise mother of genetic nature of her disease when daughter (identifiable at the time) didn't know to treat it: duty was to patient's children and patient as identified third parties that physician knows (p21) Easy - 2nd party question - Duty DOES include warning patient of posssible transmission (p24) JZ - if he had known fiance, this court would say liable Issue of drawing line before getting to unbounded liability JZ - RESTATE2-311 could apply here. Negligent misrepresentation relied upon that harms a third party. Duty based on special relationship to the victim - brings duty to take AFF steps to minimize or avert harm No duty to accede to criminal demands on worker facing hostage situation, not because of duress, but for lack of special relationship for duty to control 3rd party (BOYD) BUT-FOR CAUSE - Compliance would not necessarily have helped PLTF + would have put teller in harms way. Policy - duty to comply would incentivize criminal hostage-taking Cite 2 other cases on topic GENOVAY v FOX - proprietor didn't comply with robbery and induced resistance by patrons. One patron shot in process and sued. Court held that jury should decide of DEF conduct was reasonable. (p21) NOLL v MARIAN - Bank teller dropped down and gunman shot PLTF. Court found no cause of action for negligence when teller attempted to save self and employer's property (22) Dissent - proximate cause is a question of fact for the jury Ex Train conductor sees passenger being assaulted and fails to help vicim Factory owner fails to assist employee trapped in elevator when working Employer uniquely situated to mitigate harm + employee on premises to benefit her School officials don't seek medical care for a feverish child School officials take charge of kids knowing they need protection Prison inmate complains to guard of stomach pains, but guard ignores Prison takes charge of prisoner and deprives of ability to protect self Perpetrator special relationships EXAM QUESTION POSS - prison door left open and prisoners escape. Victims are not particularized, but generally in danger. Not in list of special relationships. Duty? jailers to prisoners special relatonship "Dangerous proclivities" - RESTATEMENT 317 - one who takes charge of third person whom he knows or should know to be likely to cause bodily harm to others if not controlled has duty to exercise reasonable care to control third person to prevent from doing harm Typical note - duty is for reasonable care

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 Typical note - duty is for reasonable care Primarily applies to those in charge of mental patients or prisoners See TARASOFF - psychiatrist's relatoinship to dangerous patient when threatened to kill a particular person (another court didnt find duty when threat was general) Government - CARDOZO MOCH CITED IN EVERY CASE IN THIS SECTION Government as private actor - Duty exists - negligence test Acting as shopkeeper, e.g., USPS But see Weiner - "specific act or omission, not general proprietary activity" that matters Government as public protector - police and "custodial" relationships: no duty unless exception: RISS - no general duty of protection (leave to legislature) Protection is limited community resources and it's a legislative-executive decision as to how to use those resources. "Duty to all is duty to no one" (see also STRAUSS, KOCH) Police officer can ignore dangerous and illegal conduct in her presence, e.g., not arrest drunk driver (unless statute), city inspectors ignoring fire safety standards Exceptions Statutes may create duties (724) Egregious misconduct Intentional wrong Malice or recklessness Many feel RISS is wrongly decided - police should be held to reasonableness standard What standard for breach - reasonable cop or reasonable person? RISS would not give immunity if handcuffed murderer with string and he escaped...so there is something there... Exceptions SCHUSTER (FBI flyer)- "special relationship" 1) assumption/promise of duty to act; 2) knowledge that inaction could lead to harm; 3) direct contact with victim; 4) justifiable reliance on promise Reliance as main factor- means promises communicated to party in need If don't promise, it's RISS. If do or conduct induces to rely, see also GARCIA (look for reliance); also FLORENCE (reliance on crossing guard) protective orders, hiistory of violence can = assuance that police would take action (SORICHETTI) 911 cases too: 1) promise, 2) reliance (has to matter to your ultimate behavior; could have done something different if hadn't relied) If I call and all circuits are busy (because of negligence), it's RISS. If they commit and do poorly and I rely, then it's GARCIA/SCHUSTER Ex - no liability if do nothing to fight fire or ignores call, but yes, if negligently use dangerous/inadequate methods to fight fire Ex - police chases are affirmatively dangerous conduct, so liable when dangers of chase outweigh benefits (D730). FORK though - sometimes courts want immunity, rather than simple negligence standard to treat all cases alike and not scale to pursuit of known criminal vs. traffic violator (D730 If neighbor calls and person in danger doesn't know, no reliance Could make a shot with action/inaction card, but JZ seems a tad skeptical JZ again with CPR broken rib hypo - may be able to abandon helping if leave person no worse off Uses this to contrast "reliance" as a policy rationale vs. actual requirement in doctrine. Reliance only really comes in latter for S 311 and special 911 cases; usually not using in regular negligence cases Wheelchair to Buddhists story DONT FORGET-for causation (Terminator ex - even if police were fantastic, can't do anything to stop him, so no causation Compare to WEINER Court ruled that public transit authority owes no duty to protect a person on its premises from assault by 3rd party in the absence of a special relationship. Reasoning is that such liability would affect allocation of public resources. Compares to MCCARTY - hotel sliding door case - trying to go after police for redress for $ Dissent in HOYEM - worried about absolute liability. Holding - School may be held liable for failure to exercise due care in supervision on school premises if that negligence is found by jury and found to be proximate cause of injuries Government as policymaker - no duty Exceptions Govt planning is "plainly inadequate" or "no reasonable basis" for finding Courts try to strike compromise for liability in pothole cases Once decision is made though, must follow through reasonably Policy Action/inaction Unbounded liability Cannot insure/predict costs Too many Ps in system Achieving right social outcome Social host example - commercial hosts know better from experience and expertise so liable for serving to drunk driver, but we have different view of personal responsibility when it comes to social hosts

Negligent Infliction of Emotional Distress - duty as on/off gate before rest of Negligence
Causing fright for ones own safety Ds negligence exposed P to physical harm but missed doctrine: if in plane, it's FALZONE and recovery; if on ground, no recovery Policy - 1) too many people; 2) too speculative re: who's close enough Connect to TARASOFF and how identifiable the victim need be "Shoot up Safeway" hypo: could call police to easily warn vs. too general and anyone could say, "I was at Safeway on X day" Subsequent physical manifestations from the distress (i.e., heart attack) Fear of future injury - PLTF permitted in limited circs to recover damages resulting from fearing future injury, usually after actual impact, e.g., asbestos exposure (A246), so still based in DEF's failure to act with reasonable care in not causing physical harm Bill Gates mosquito hypo Grief or anxiety over injury caused to another Bystander present Victim is close family member High foreseeability of agitation but no risk of physical harm Generally, no independent duty to avoid causing emotional distress Policy - fear of fraud and too many PLTFs litigating Foreseeability of such distress argues for restraint - unreasonable burden if DEF must pay for all those disturbed (E296, quoting Prosser and Keeton) Reluctance to impose duty to persons with no relationship to DEF (E396) Difficult for courts to verify claims or attribute distress to DEF conduct (E296) Zone of Danger Rule - you must also be in the zone of danger and subjectively believe you are in the zone of danger to recover , and must suffer "substantial bodily injury or sickness (FALZONE - almost car accident) Symptoms must result from reasonable fear of immediate personal injury SUBJECTIVE TEST Lines - in plane - yes; near plane crash - no. Recovery amount may depend on whether you saw your impending doom coming (where sitting on plane) Rare exception to impact test: (1995) PL alleged she was diagnosed with HIV due to Ds negligence, and thought she had it for 18 mos. Court held that emotional distress must flow from physical injuries, and therefore PL does not have a claim. Could phrase this as a duty or a proximate cause case (toolkit options to get result you want) *Generally needs to be family member (E309) Dillon rule: 3 factors for both jury and judicial determination to survive summary jment (A245) (FORK re: whether need all 3) DEFs have duty to avoid inflicting emotional distress if foreseeable, where foreseeability based on 3 factors: Proximity - Whether PLTF was located near accident

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 Implies exclusion of close relative when not present Visibility- sensory and contemporaneous observance, notlearned from others afterward Implies exclusion of PLTF summoned to scene afterward Unclear on whether must know injury is caused by negligence or treatment of antecedent negligence (e.g., car mechanic, not driver, neg) (E312) Relationship - Whether PLTF and victim were closely related ROMAN - A dog is personal property, so no damges for emotional distress from witnessing injury to property. PIZARRO - no immediate family member for decapitation Hypo - dad stops car and goes around to check what's wrong with trunk. Gets hit. Mom and son turn around after and see him pinned. See PORTEE case First sue dad to collect insurance. Then, sue other driver. Court struggles with liability lines... PORTEE (child dying in elevator) adds - severity of the physical injury causing distress GAMMON: "GENERAL NIED" - hospital reasonably should have foreseen that family members would be vulnerable to emotional shock at finding a severed leg; DEF must avoid foreseeable severe emotional distress caused in reasonably sensitive person By strict reading, case does not limit to family NO physical injury or sickness required, but distress was severe Separate "Loss of consortium" - impairment of relative's opportunity to relate to party directly injured by DEF, e.g., spouse when injury prevents her from enjoying usual satisfactions of marital relationship (comfrot, affection, advice, support, other associational losses) Distinct from witnessing accident or trauma - it's impairment over a period of time Distinct from grief of sadness because impairment may persist as long as injury and doesnt fade over time Can be awarded damages for it (E303) Spousal claims are well established Parents or children claims = no consensus **See exs for damages ideas for JZ's coverage

Pure economic harm

Economic harm - no recovery unless there is a physical or property harm Exception - concretely identifiable and foreseeable P (2nd, not 3rd party) Recovery is allowed for economic harm to a specific PLTF or a particular class of PLTFs when it is particularly foreseeable (i.e., 1) close proximity; 2) obvious nature of PLTF's business operations; 3) existence emergency plan) (PEOPLE EXPRESS - fire evacuation included airport-->business interruption) Passengers on canceled flights are too variegated; like STRAUSS and BELL. Neighbor airport is boundable Examples on p32 - all are 2nd party relationships via contract; tort is about 3rd parties and foreseeability Rule - public expenditures (by public utility company) made in performance of govt functions are not recoverable generally; here, claims for purely economic harms of lost wages and revenue due to blackout are invalid (KOCH) But does note exceptions for fire fighting and police power services (fire dept can request outside municipality to for reimbursement for costs of helping; municipality can sue for reimbursement for sums paid to injured police as salary and med expenses) (p31) paid to injured police as salary and med expenses) (p31) ALWAYS USE ON EXAM - STRAUSS V BELLE REALITY - man who tripped down the stairs - blackout. No water. Went to basement for water. Fell on dark stairs. Alleged neg v landlord for failure to maintain and failure to warn and Con Ed for failure to provide electricity, duty. Only customers (privity) when literally serving as paying customers (not in common area or visitor, etc) recover from company Customer relationship is key; if was in apartment, yes duty. It's about fear of extending liability too far, so court drew line with idea of contracts as its "limited and defined" marker to deal with extraordinary situation of unbounded liability by an obvious tortfeasor Policy - unbounded liability fear - 1) incalulable so can't predict and insure; 2) too large to contain; implicate affairs of too many and other areas of neg (prox cause) couldn't contain it Amount of liability is unpredictably large, so hard to sell insurance to protect (A248)-->no insurance discourages DEFs from taking risks and acting in ways for possible economic gain for fear of loss (248) Slippery slope - could trace economic losses too far and hard to develop bright line, liet alone foreesability Distinct from medical expenses and lost wages in ordinary negligence cases. Negligent misrespresenation too - that's where DEF provided a service negligently and caused economic loss - falls into that category(A247) Like negligent infliection of emotional distress - derivative of standard applied for physical harm, so not pure risk of economic loss so much as negligently risking economic loss as a result of also negligently risking physical harm (A249)

Causation - always consider Terminator but-for problem

Takeaway: We care most about innocent defendants, then injured plaintiffs, then negligent defendants Factual General Rule: But for Ds conduct, injury would not have occurred Usually, must show "more likely than not" (HOWARD V WALMART vs. NEGRI V STOP N SHOP (dusty jar - there a while) that something is the causal link, but small changes in phrasing can affect jury Stubbs - when KNOW THE D WAS NEG - will fudge "but-for" and require "reasonable certainty" Where 2 or more causes and DEF could only be liable for one, and PLTF presents facts where there can be reasonable certainty that the cause of the injury was one for which the DEF was liable, the standard is met; don't need to eliminate other possibilities (p27) ANOTHER MOCH REFERENCE - Here, though, there was city action to provide water, so no no-duty escape Note - can have "but for" causation with inaction (E288) Failure to extinguish a fire, to fence a railway track, etc (P265) Ex If fall off boat with no life preserver and sink immediately...no causation because no way for preserver to reach me. Different if bobbed and could've been saved, but would require testimony about likelihood of throwing a preserver to me (someone on board who could throw that far, etc before getting to jury (A104)

Multiple sufficient causes

2 simultaneous causes: both negligent - sufficient but not necessary problem ANDERSON - If fire caused by DEF united with fire caused by another, there is joint and several liability, even though either fire would have been sufficient to destroy PLTF property (p59). If DEF conduct was material and substantial element in bringing destruction about, then it is a cause overdeterrence over underdeterrence 2 simultaneous causes: one negligent, one not Lightning bolt example - fork, but probably liable if arrives at same time..? If second fire caused by lightning ? JZ - Bad stuff happens and donn't get compensated fully...changes ADAMS to say kid falls and grabs wire and gets electrocuted before hitting ground Reading COOK from ANDERSON case dicta...maybe... Sequential causes: pre-emptive causation 2 fires and one gets there first - only the first party can be held liable, assuming negligence, but not a but-for cause (A112) If tsunami goes through next day? Only damages for one day of home? If Seffert killed a week after injury on greyhound? Yes impacts damages - not DEF's fault she died. Indivisible injury distinction RAVO successive tortfeasors but injuries cannot be reasonably divided (p18), each is jointly and severally liable (even if not acting at same time or in concert (22))).

Multple possible causes

SUMMERS - Where multiple DEFs are negligent and but for their actions PLTF would not have been harmed, but PLTF can't prove which (causation is missing), the burden of proof shifts to each DEF to show that he didn't cause the harm (p18). If can't show that, both will be jointly and severally liable. If hadn't acted wrongly, no liability (GARCIA V JOSEPH VINCE) One of a group of DEFs must have committed wrongful act (bad sabre), but no evidence proving that all members of group acted negligently. YBARRA - inference of negligence; this = inference of causation, but it doesn't meet but-for causation RARE - usually only applied to 2 DEF cases.--->rationale could be inferred as: each is nearly more probably than not liable (50/50), but with a 3rd DEF, goes to 33...

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 RARE - usually only applied to 2 DEF cases.--->rationale could be inferred as: each is nearly more probably than not liable (50/50), but with a 3rd DEF, goes to 33... Industry Loss of a chance to survive Market share liability HYMOWITZ V ELI LILLY & CO Drug taken causes cancer, but impossible to know which manufacturer caused injuries. Rejects SUMMERS' alternative liability as limited to small number of tortfeasors and in better position to give evidence-->here, lots of manufs and small probability of guilt and DONT know/have evidence about the cause Holding: liability according to national market share Even if in an individual case they can prove not the cause Liability is several but NOT joint, so PLTF may not get full recovery Breaks with causation requirement This theory ONLY holds when it is proven that both defendants are negligent. Garcia v. Joseph Vince (Cal. App. 1978): Deals with a situation where only one defendant was negligent; Plaintiff fencer was hurt by a defective saber. Plaintiff could not ID which of two manufacturers was the source of the defective saber because it had been put back into a pile of sabers. His effort to invoke Summers v. Tice was rejected and the case was dismissed. Because only one of the possible defendants was at fault, wouldnt hold them joint and severally liable off of mere statistic possibility Toxic harms and statistical proof of causation - some courts won't take statistical evidence alone (STUBBS) Policy - discourage discovery of particularlized evidence, threat of full liability is deterrent to potential DEFs, but may game system if knowns chances of cancer are only 30 percent and would never be held liable under conventional approach (alternative to this is to charge 30 percent of each PLTF's damages) Critique of alternative - no precedent; 2) radical shift Joint and several liability - apply when 1) multiple DEFs act together and one is negligent; 2) injuries incapable of reasonable division among multiple DEFs (RAVO); 3) industry wide liability Joint and several liability - each wrongdoer can be found liable for up to 100% of harm and PLTF may elect from whom to collect what, so long as no overcollection What about when intentional and negligent acts combine? Puts burden on DEF to pursue other tortfeasors to get reimbursed Situations (A114): Joint tortfeasors acting in concert Successive tortfeasors with successive and independent liability-->initial tortfeasor liable for whole damage Independnet tortfeasors for single theoretically indivislbe harm Car speeding hits car going through red light and one runs into pedestrian-->each jointly and severally liable Independent tortfoeasors for single, theoretically divisible but practically indivisible harm No evidence to show divisibility RAVO Phantom tortfeasor (BROWN V WALMART) - D may not attribute fault to a nonparty who isn't sufficiently identified for P to serve process (under state statute), even if nonparty's existence by clear and convincing evidence (37) Decision depends on interp of comparative fault statute and no clear majority rule This court's policy arg - to allow fault attribution by DEF to unidentified nonparty would diminish her incentive to identify additional tortfeasors (risk spreading) and impose burden on PLTF to defend the nonparty (p35) Problem arising from comparative negligence shift Do I still pick DEF who pays (joint and several) or do numbers merely show how much they each owe FORK BY JURISDICTION THAT JZ NOTES - in wal-mart case, it's comparative negligence regime and no intentional tortfeasor to pin it on, so a tough case

Proximate cause - 1) was DEF negligent (unreasonably risked harming someone/thing); 2) was harm to particular PLTF or class in her position a foreseeable result of DEF's negligence (prox

cause) Proximate: Is it Fair to Make D Pay? Defendant always liable: Intervening medical negligence Intervening rescuers negligence Intervening protection or reaction forces Subsequent disease or accident 4 categories - could impose liability Unforeseeable degree of harm - BENN V THOMAS (delayed heart attack)- 1) eggshell PLTF rule for intentional and negligence; 2) rule of causation and damages; "take PLTF as found" 2 conceptions for damages Once DEF is otherwise negligent (duty, breach, causation, harm), reponsible for unforeseeable extend of damages Once other elements established, DEF responsible for extra susceptibility to harm, even if it isn't foreseeable Eggshell for proximate cause - rejects requirement of foreseeability in "thin skull" cases No defense that PLTF had unforeseeable weakness/"thin skull" Harm must be "precipitated" by accident (STEINHAUSER - schizo) But, the existence of prior tendencies might greatly affect the damages collected (STEINHAUSER) The rule holds for resulting suicides (more and more courts are allowing this) [CB 405] Fuller v. Preis: Victim was a surgeon who sustained injuries in a car accident that left him subject to seizures and caused physical deterioration. Meanwhile, his wife, who had been partially paralyzed suffered nervous exhaustion. Seven months after the crash he learned his mother had cancer. Allowed for the possibility of recovery despite suicide notes that suggested these other factors had something to do with it. POLICY to reconcile with PALSGRAF Practicality - don't force PLTF to prove severity of injuries foreseeable, especially with such variance in society Deterrence - DEFs should be on look-out for thin skulls Unforeseeable PLTFs - depends PALSGRAF Cardozo - only owe duty toward foreseeable P (duty case); maybe neg toward passenger or vis a vis passenger in not giving due care to package, but NOT to Palsgraf b/c no duty Cardozo saying unforeseeable as a matter of law; Andrews , no Deciding whether the PLTF is foreseeable is closer to a rule than a standard Different than "duty to be careful as go about the world" Hypo - point gun at self and accidentally hit another - duty to myself and them in Cardozo world? Andrews - not duty question; proximate cause and look case-by-case To determine proximate cause, look to was the one a substantial factor in producing the other; direct connection without too many intervening causes; effect not too attenuated; could the result be foreseen; is the result too remote from the cause (in time and space) Still disagreemnt on whether should have strict liability type situaiton where harm suffered by unforeseeable PLTF is liable or not (deterrence vs. unpredicable args) Unforeseeable types of harm - no D liability WAGON MOUND - not about being direct/natural/probable, but liability is whether the damage is of such a kind as the reasonable man should have reasonably foreseen WAGON MOUND - overrules POLEMIS - no liability when foreseeable PLTF suffers unforeseeable type of harm, but extent of harm is ok as unforeseeable So, not were you negligent? But rather were you negligent regarding a certain risk? DARBY - Even if a duty to warn of a disease caused by rat urine required a no swimming sign, this duty does not extend to a drowning from a cause other than the disease (p33) Policy reasons may step in to deal with unbounded liability Unforeseeable manner of harm - D liability Manner generally doesn't bar recovery unless in retrospect looks crazy Analysis - foreseeable results and unforeseeable causes Lightning strikes negligently left oil residue = liable even though danger realized through unforeseeable factors 3 types

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3 types Original negligence exposes/contributes to risk and that continues through intervening act Ex - termite-ridden telephone pole knocked over by car up over sidewalk; ladder left standing in street blown down by wind; loose lumber knocked over; insecure gas pipe hit by car (P316-317) If set fire, failure of 3rd party to extenguish it, however unreasonable, doesn't stop liability; if give dynamite to kid, then parents take it, then kid gets it again, original giver may still liable, but court may also say point forward is parents' responsibility (P318) GIBSON v GARCIA - corporation in charge of negligently maintained pole could have reasonably anticipated that its pole would be knocked over by its own weight, nature, or other forces, and injure someone, so whether car accident is a concurrent or superseding cause goes to the jury. Key - DEF need not foresee extent or manner of harm if conduct is a substantial factor in bringing harm to another(p16) Reasoning Intervening cause doesnt kill prox cause if original negligence continues to injury and contributes substantially in conjunction with intervening act (p14) Intervening act could be unforeseeable and still not be superseding act that kills prox cause (p15), for example when DEF conduct exposes class to a foreseeable risk, contributes substantially to it, and it happens even though an unforeseeable intervening act is also a concurrent cause (p15) Unforeseeable MANNER or EXTENT doesnt prevent liability - RESTATEMENT 435 (p16) Intervention and enablement Most courts Ex - leaving keys in ignition and thief drives negliently - foreseeable; serving to drunk who drives and kills - foreseeable , so actions of bartender and car owner are mere intervening, but not superseding causes (A130) So, some tortious or criminal acts are sufficiently foreseeable, but FORK depending on how blameworthy the third-party conduct is Ex - if thief of car is driving carefully and injures - not sufficiently foreseeable, BUT DOCTRINE: if I injure you and you get bad medical care - that's common enough to be foreseeable. Ex of no liability when responsibility shifts to second actor (would be relieved even if foreseeable): leave hole in sidewalk and someone negligently pushes stranger into it (different if deliberate, perhaps); chair left on balcony and purposefully thrown Ex of no liability - 3rd party fully discovers danger and deliberately disregards= responsibility shifts, unless extreme danger that not allowed to shift via policy Hard cases - time passage- need stopping point somewhere... Supplemental examples (PALSGRAF dissent factors in relation to: Rescuer WAGNER - rescuer of man who fell off train due to crew negligence can sue because "danger invites rescue" even if wrongdoer doesn't foresee rescuer coming MOORE - man who gave kidney can't recover as rescuer - action not "spontaneous or instantaneous" but deliberate and reflective = no emergency Time FIRMAN - DEF hit a three yearold, who suffered brain injury and then shot PLTF. Too much time passed since initial tort and not "within the range of apprehension" Distance FERROGGIARO - DEF negligently hit box with master traffic signals and liable for crash caused miles away Fire (minority approach below) RYAN v NYC RR - Sparks from engine ignited a shet and fire spread to PLTF's builiding, but no recovery because not a "necessary or usual result" that fire spreads to other buildings Prox cause purpose - solve problem of "fortuity" Unexpectly fragile PLTF--->DEF pays difference Unexpected degree of harm---> DEF pays difference unless policy intervenes Unexpected type of harm--->POLEMIS v WAGON MOUND; DARBY Unrelated harm--->speeding ambulance vs. regular ride to hospital Succeeding events---> rescuers; ancillary events tied to accident; negligent doctors Minks - where animal breaks chain of causation Catch-all; policy -based limits Time, distance Harm-within-the-risk test - way to clarify foreseeability Negligence increases the general risk of what happened or doesn't = test; e.g., Skidding car is no more likely to skid into a negligently parked car by a hydrant than one a legal distance from it (A126); speeding and tree falls on car. Speeding didn't increase the risk; just a coincidence; sheep washed overboard when not in cages, but reg designed to deal with disease, not washing overboard. Primary v secondary purpose of a statute - livestock fence rule with RR tracks, but sent to jury after child goes on trakcs (A128) WAGNER V INTERNATIONAL RAILWAY - DEF negligent in failing to close door, permitting PLTF's cousin to be thrown. PLTF injured when attempting to help. Clear negligence for door, but how about resuer. Cardozo holding: one of the risks that makes it negligent to risk harm to another negligently is risk that another will be injured while resucing, so it's up to a jury to decide foreseeable. Harder situations

Defenses to Negligence Assumption of the risk

Sampson v. Baptist Memorial - Signs at hospital and forms saying independent contractor stopped PLTF from suing hosptial Likely it's not about the contract, but about tort. Just telling you that it's an independent contractor, so refusing to sign may be indication you know and you're still out of luck.. Relevant to informed consent and malpractice - reasonable patient vs. reasonable physician standard (A77)? 4 Categories Express assumption of risk - waiver ahead of time - knowingly, voluntarily, appreciating their significance D non-neg from the start when: risks inherent and acceptable and STEEPLECHASE - taking part in a sport accepts inherent dangers that are 1) obvious and 2) necessary (p17)-->awareness of danger can = implicit acceptance of danger Purpose tool - Maybe different if injury wasn't what you'd expect from a fall or if so many accidents to show inherently dangerous (p18) Purpose of parks is simulated violence, not actual violence Unlike taxi hypo - purpose is to fall PLTF knowledge (SUBJECTIVE - if no knowledge, maybe failure to warn; warning must be specific) of risk m RULE REQS (Prosser) - SUBJECTIVE TEST (SHORTER): Must know risk is present General may not be enough; may need to be specific (p67) - subjective standard based on P's situation (so factor in age and experience) , unless something is clear and obvious (488) (SHORTER Past experience could be evidence and momentary forgetting doesnt save DISTINCT from contributory negligence may be that failure to exercise ordinary care to discover danger is not part of assumption of risk Must appreicate and understand its nature Must make free and voluntary choice to encounter Consent Running in street is maybe contributory negligence but may not be assumption of risk unless manifests consent -could be expecting they'll take reasonable precautions Not assuming risk if dash in to save your property that would otherwise be harmed by D's negligence (whether contributory neg depends on value of property and proportion to danger) Applied Assumed specific risk that P might die if refused transfusion; didnt assume risk of direct consequences of doc's negligence; risk of death came from failure to receive transfusion (p70-71) (SHORTER) Implication - religious beliefs are negligent JZ push - HART V GEYSEL was consenting to possible injury; this P had no choice (hard philosphical q). Doc may have failed std of care by not offering other procedure when knows she'll refuse blood EGGSHELL P - in ALL cases (intentional or neg), still a duty to mitigate damages. Jurisdiction may lump assumption, comparative, and duty to mitigate together in one kitchen sink Vet's rule because risk is specific known hazard of occupation P engaged voluntarily (p24); like sports where liable only when act outside range of ordinary activity (COHEN) HACKBART v BENGALS

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HACKBART v BENGALS Not outside reasonable expectations of particpants b/c no rules explicitly set; in context of sports not realistic to expect limited conduct from participants; previous play learned it was aggressive (KNIGHT V JEWETT) Skiing hypo - if spike or things outside scope of expected = contract can't excupate Firefighter's rule - negligent fire-starter not liable for injuries to firefighter who fights it (policy rationale = no duty to fighter) (p22) Different hypo - neighbor, not firefighter Policy - firefighters know of risks ahead of time and can plan accordingly (insurance, salary) Harder case - volunteer firefighter, not on clock when goes to save Emergency doctrine; any neg misrepresentation about nature of fire Exception - where reckless or misrepresntation and that changes the nature of the danger P faces (e.g., dog had rabies and didn't tell) entering business and finding dangerous conditions like slippery floors or unsafe stairs and still proceeding freely; or accepting ride with drunk or in defective car; or using product where you know its dangerous defects , but other factors may affect "voluntary choice" and no guarantee risk

actually assumed
Z - courts are going to let baseball games hurt people even if they're from another planet and don't know what's going on. Exception - Duty not to increase inherent risks that spectators at baseball games are exposed to and assume. (whether Tremor breached is jury question) (LOWE) e.g., properly marked ski slope = no liability b/c P could assess inherent risks and take knowingly Could be just "no breach of duty" in these cases Release must cover situation, but court may not always allow to apply General health care disclaimers of liability for malpractice almost always invalid - language in SHORTER Note - cannot contract to commit intentional tort (prize fighter case)? No blanket contracts for reckless, willful Hard case- garden variety negligence and contract/express agreement - balancing test (but JZ says we dont need to know) Public policy may refuse to enforce for: 1) possibility of insurance and "risk spreading"; activity is necessary and/or risk is necessary to participate Contractual surrender of right to sue (need not be written contract though) Compare purpose of contract (express agreement - a) create duty; b) eliminate duty) to purpose 2 - cover failure to warn and change P knowledge so D acted reasonably in warning Assuming risk itself, not negligence that follows necessarily, but any negligent failure to warn of risk, e.g., paintball waiver, "Flopper" - built-in to name No duty of care breached by D - common accepted risks Net at baseball game hypo (like ATKINS?) - not about assuming risk, but just that exercising reasonable care = no net (so no breach), so assumption of risk is just different way of saying Still, phrase is valuable for distinguishing openness of risk and voluntariness of P participation (baseball game vs. walking down street) (A162) Secondary assumption of risk - defense to prima facie case - P acknowledges D's negligence and moves ahead anyway Could be just contributory (or comparative) negligence against yourself 2 ways (contributory neg) for P to unreasonbly risk harm: 1) fail to appreciate risk; 2) conscious taking unreasonable risk (negligent risk-taking) This one = a defense (and contributory negligence still too) Conscious, Reasonable risk-taking (non-negligent) Trend to side with case where man saving child from tracks is killed is not unreasonable under circs (leave to jury) (164) Still, A notes that case where P has no choice but to take ride with drunk to get to hospital, we may want to make it strict liability on the P and not protect for open, voluntary informed decision to ride, even though it's reasonable (A165)

Comparative and Contributory Negligence

Contributory P's negligence must be actual cause and proximate cause of harm. Generally, D must prove P's contributory negligence. All or nothing - total bar harshness---> breeds common law exceptions = negligent rescuers may still recover + won't apply against gross D negligence ASSUMPTION OF RISK - still complete bar to recovery in contributory negligence regimes, but not for intentional torts? Think HART V GEYSEL on intentional cases like WMATA. Mitigating damages (DERHEIM) - According to expert medical testimony, some of the plaintiffs injuries would have been prevented if he had worn his seat belt. Unfair to mitigate damages of someone who is hurt in accident that he wasn't responsible for when there's no statutory duty to wear seatbelts and when state hasn't adopted comparative negligene doctrine(says adopting seat belt defense would be tantamount to adopting comparative) (p46, p48) MITIGATE DAMAGES SHOULD HAPPEN BEFORE HARM ITSELF - "avoidable consequences" (didn't work in FRITTS) seatbelt negligence happened before D's negligence, rather than usual situation of conduct contributing to accident in contributory neg situation (p34). Avoidable consequences doctrine as possible solution - like mitigation of damages, but unlike here, applied after the occurrence when P doesn't meet standard of care (p35) Exceptions to contributory Safety statute exception - if D's negligence breaches a statute designed to protect P (and class of P) against that negligence, then any contributory negligence doesn't stop recovery, e.g., bus driver doesnt put out warning sign, kid negligent, kid gets hit. No defense for kid cont negligence (A146) Greater-degree-of-blame exception - no contributory negligence for intentional tort (policy - intent to harm is worse and worth deterring than failure to take sufficient care to protect yourself from harm) ; same goes even if D is not negligent, but still more blameworthy Some courts say no need to categorize blame in comparative neg world; just compare degrees of fault. Others, say comparative neg statutes only apply to neg actions, not intentional torts, so P neg not a defense to intentional tort Last clear chance - if negligent D had last clear chance to avoid harming P, then P's cont negligence doesn't bar recovery Helps P Where applicable, P's contributory negligence irrelevant Only a defense in cases of negligence - if not, defense would be contributory recklessness or contributory willful misconduct CANNOT impute contributory negligence (passenger in P's negligently driven car has a case against D negligent driving, but P doesn't) Requirements P in helpless peril [caused by neg of P and D - WMATA] and D knew or should have known in time to avoid P's plight by due care Helpless NOT same as negligently inattentive P oblivious to danger, but if behaving reasonably, could b/c aware of it and avoided harm + D had actual knowledge of P's danger in time to avoid harm Intentional act can remove P's duty of last clear chance WMATA - Public policy - suicide as intentional cannot lead to recovery because of perverse financial incentives on behalf of surviving family members (p26) JZ hypo to push - P takes pills for suicide. Medics drunk when neighbor calls. Fail to save. Duty - WMATA driver had duty to stop; his job, regardless of why person has fallen/jumped. Clear there's a duty, JZ says. Pushing on contributory negligence comparison to possibly show hypos are irreconcilable even though he says ethical tugs us to say that medics are diifferent. In WMATA, prong 4 met because driver drunk. Policy - may be that clear chance is open and obvious so D is more blameworthy (DAVIES V MANN and donkey may fit here) BUT doctrine is just "reason to know" which is not same as knowing, so DEF may have been careless or equally negligent and still get bit + P may be careless and not paying attention THIS PUSHED US AWAY INTO COMPARATIVE NEG WORLD Most courts hold that last clear chance does not apply in comparative negligence regimes because includes own method for apportioning fault (E568), BUT COULD FACTOR INTO JURY'S NEGLIGENCE DETERMINATION (A157) Can't logically use last clear chance pegged to modified comparative negligence regime - need all or nothing with it - otherwise, get 51% neg P full recovery, and 49% neg P 49% recovery (A157) Comparative (A151) - all but a few states adopt it. Ps recovery reduced in proportion to the amount of negligence attributable to her" (A151) NOT COMPARATIVE CAUSATION - can be slightly negligent and cause a lot of harm and vice versa (A153) P's fault should relate to damages as a whole, not to D's fault (E568) FRITTS -

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FRITTS Consider reasonableness of patient conduct only rarely in med neg cases, e.g, failure to reveal med history that would've helped doc; giving false info about condition; failure to follow doc advice; delay to seek further rec'd attn; trying to treat self (p29) Substance abuse is relevant to determining life expectancy for damages, but NOT for claim against doctor, because self-injured patients entitled to non-negligent treatment (p47, p30). FORK whether comparative should also apply to intentional torts, e.g,. Negligent hiring results in sexual assault (E568) Different - VEAZEY - landlord's failure to secure premises. 3rd party intentional tortfeasor intervenes and rapes. Holding: Negligent tortfeasors shouldn't reduce fault by intentional tort of another when they had a duty to the P (p36) Negligent tortfeasor should not benefit by allocation of fault to intentioanl tortfeasor under comparative principles because public policy calls for incentive for lessor to prevent this harm from occurring (p37) Intentional torts are entirely different nature than negligence, so often not possible to compare them (p38). Comparative fault determination should be made on case-by-case basis on policy concerns; comparison here is inappropriate. NO MATTER WHAT, if P's negligence didn't cause injury, jury shouldnt consider (E566). **Comparative negligence does not affect basic rule of joint and several liability that each DEF is liable for full judgment award to PLTF, so it doesn't mean that PLTF judgment will be apportioned to DEFs in proportion to their negligence (E566) 2 kinds Pure - Ps negligence is never a complete bar to recovery Modified - if P is more negligent or as negligent (some juris) than D, no recovery; if recovers, gets pure comparative amount Applications Multiple Ds P is 40% neg; D1: 35%; D2: 25% Majority rule - if left contributory b/c of fairness concern, makes most sense to allow recovery if P neg is less than 50% (A156) Joint and several liability Contributory - know P is innocent, so place risk of D1 insolvency on D2 Comparative - 3 approaches when P is 40% neg; D1: 35%; D2: 25% Ds jointly and severally liable for 60% of P losses (if Ds are concurrent not joint tortfeasors, this is illogical) (A156) D1 pays 36/60ths; D2 pays 26/60ths; if one can't pay, P out of luck for that share (liability for your share, no more) A's fav - assume D2 involvent. Apportion responsibility for D2's share; 75% of negligence caused by P and D1. D1 owes P 35/75ths of D2's + his own share, and P bears remaining 40/75ths of D2's share Majority rule - assumpiton of risk mostly used for unreasonable/negligent P assumption anyway, so fold into comparative neg review (A158) Interaction with strict liability (A158) NO COMPARISON WHEN P'S CONDUCT IS SOCIALLY OFFENSIVE? BARKER - no recvoery for pipe bombs because of "prohibited", not merely "regulated activity" (compare to ASHMORE) BARKER- P precluded from compensation where injuries directly resulted from serious violatio of law involving hazardous activities not justified under the circs; this is a public policy rule separate from comparative negligence rules (p22) Distinguish conduct 1) regulated by statute (PLATZ and HERZOG cited) and constituting neg or comparative neg, from 2) conduct entirely prohibited by law = no suit for P's injuries if conduct was serious violation of law and if injuries direct result of violation (p19) ASHMORE - RESTATEMENT 2d 889 - Not barred from recovery for an interference with your legally protected interests merely because at the time of the interference you were committing a tort or crime; Cmt b - doing illegal act doesnt prevent action for harm caused by neg or abnormally dangerous activities of a 3rd person (p17) Let public policy be promoted through penal code (p18)

Strict Liability: Safety Precautions are Irrelevant Strict liability - still requires causation, proximate cause, harm
Contrast to absolute liability - insurance - pay by contract even if didn't cause harm (NY riot law) o negligence necessary when there's trespass on someone's person---> absolute liability (p29) (SULLIVAN) Compares to land trespass cases where motive of person drpriving another's use of property does not matter (p17), like Hay where blasting stones onto another's land is a trespass even if the state did it (p21) "Safety of travelers upon public highway is more important to state than improvement of one piece of property to its owner (p29) If multiple strict liabilities overlap (imagine if all cars had it), then any accident = HART v GEYSEL and then COASE - where place burden to pay for risk Limited to type of harm that makes conduct dangerous (E341) Animals Domesticated Animals (dog bites)- No strict liability Exception: D has knowledge of vicious propensities Trespassing Cattle and Wild Animals strict, not absolute liability for wild animals as pets (SIOUX CENTER) Public benefits from zoos, not from one with a pet; about discouraging tigers as pets Note - still possible defense for victim exposing self to injury (p25) Strict liability if treated as a pet, strict liability if treated like a zoo animal. DIFFERENCE - Assumption of the risk and comparative negligence allowed even in strict liability cases, so P avoids it if animal presented as tame pet RESTATEMENT does allow for this generally - ex - elephant giving rides to kids that goes nuts; chimp that does same (p47) RESTATEMENT 2d 510 - Strict liability even if caused by unexpectable innocent, negligent conduct of 3rd person, another animal, or force of nature (p24) Ultra-hazardous Activities Activity that cannot be made safe Severe risk of harm Uncommon in area where conducted Fact patterns Major explosives Toxic chemicals Nuclear energy Nuisance Inconsistent land use Liability if Ds activities interfere with Ps enjoyment of Ps land to an unreasonable degree Activity-based, not act-based like negligence (A166) Liability even when avoidance costs > accident costs Won't make Ds act more safely than is already in their self-interest Difference is who bears cost of non-negligent harm - potential victims or potential injurers (A168) If it's victims, you have negligence liability for injurers, but strict liability for victims => you always have strict liability; question is where to place it to maximize benefits HOWEVER - pain and suffering not covered by insurance (only insure against hard costs); pet insurance? Parent insuring children or else neglient not to? Goals Loss avoidance Incentives If goal is to induce proper care in b<pL cases, then SL and negligence are roughly equal HOWEVER - SL brings in aspects of care the court may not consider in deciding negligence, e.g., checking mirror AND - Level of activity/purpose for actions are unimportant for negligence---> SL makes firms moderate activity level through price because know they'll be strictly liable Research incentives Loss/risk allocation Loss allocation - injurers likely to have more resources than victims, but not always - victims have health insurance Risk spreading/insurance - incentive not to do X more safetly, but to engage engage in safer activities (internalizes true costs of activity)

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Risk spreading/insurance - incentive not to do X more safetly, but to engage engage in safer activities (internalizes true costs of activity) Imposing it for automobiles doesn't make truck companies safer (they have to drive); just increases cost of driving (A171), So, makes me look for alternative delivery methods that become comparatively cheaper 2 keys Need to actually have alts available Sometimes it's better to shift strict liability to victims because better equipped to alter behavior (A172) Admin efficiency Negligence more complicated, but SL = more cases Fairness Make victim whole Greater accuracy where evidence is missing - like res ipsa - jury more likely to be wrong where evidence is hard to find or missing (10% right, but 60% negligent Ds), so more accurate to impose liability on 100% of Ds Why not just adjust standard of care - because it's a nonreciprocal risk (unlike driving) and asymmetry between victim and tortfeasor justifies strict. EXAM WILL LOOK TO THE LINE - TEST - "abnormally dangerous activities" - multi-factor test leads to lower level of generality (e.g., case at hand, not asking whether activitiy generally abnormally dangerous) (179) Dangerousness (degree of risk, probability of harm, inability to eliminate risk with reasonable care) traditional key thought - More dangerous it is, more violent likely to be and more likely to destroy evidence that would enable P to prove neg Commonness (extent to which activity is uncommon, inappropriateness to area) Traditional key though t More uncommon it is, the more likely research and alternative-seeking incentives are to be effective (A177) especially for land use because already engaged in common use when potential injurer decides to do uncommon thing and you can't just pick up and leave If activity is common though, both vpotential victims and injurers do it, so makes less sense Functions like zoning Look to 1) evaluation of how specialized activity is; 2) when and where conducted; 3) nonreciprocal risk imposed Ex - driving - more killed by it than by drilling, but because so common, no strict liability But e.g., gasoline truck - can define common by how visible activity is, or how many people engage in it (comparatively, very few and with expertise), or by how many enjoy benefits of it (gas transmission is common usage accding to RESTATEMENT THIRD) (E335) Value of activity to community outweighted by dangerousness Most significant factors: whether dangers can be eliminated through reasonable care; 2) whether activity of common usage STILL NEED PROXIMATE CAUSE (only strict liability for consequences it's designed to address) Mink case - D not strictly liable - 1 view - foreseeable; better view - risk is more foreeseeable AND MORE CONTROLLABLE to mink owners (better position to make activity-level and research calculations of strict liability) (A181) Planes Like res ipsa - planes don't normally fall out of sky, so shift burden to D to rebut (missing evidence issue) Cases irreconcilable Use strict liability to go after property owners in plane theft case for $$$ Property rule v. liability rule If pure accident, no need to pay. VINCENT - if pilot has some control (of if ejected) - necessity defense, but still pays for damage CROSBY V COX AIRCRAFT CO - "Airplane that ran out of fuel" - Plane crash-landed on P's property. P alleges negligent operation, negligent mainetanance, and vicarious liability for pilot's employer, and strict liability (p19) Holding - Airplanes are not inherently dangerous instruments, so only liability for damage caused by design defect or negligent operation (p52) Failure to discover a latent defect is not negligence if carrier exercised highest degree of care reasonably consistent with practical operation of its business and best precautions that were in common, practical use in the same business (p64 Rejected Restatement 519 - Strict liability for harm to person, land, or chattels resulting from abnormally dangerous activities (even when exercising utmost care) Restatement 520 - abnormally dangerous activities; High degree of risk of some harm to person, land, or chattels of others; Likely that resulting harm will be great; Can't eliminate risk with reasonable care; Not a common activity Activity is inappropriate where it's being done; and Community value outweighed by its dangerous attributes Restatement 520(A) - strict liability for ground damage from airplane or object falling from it + vicarious liability Dissent Victim not made whole TORCHIA v FISHER - "Stolen Airplane Case" - Pilot student took plane WITHOUT PERMISSSION and crashed. Property owners sued. Statute imposes absolute liability on plane owners for damage caused to persons and property on the ground (one of only a few states with such an act (p12, 17). Even if aviation is not ultrahazardous anymore (p23), still should be loss spreading for victims of airplane crashes by stolen planes Policy for absolute liability for plane owners for ground damage (p21-22) Difficulty and cost to victim of proving negligence Plane owner is better risk bearer Plane owner benefits from plane; victime suffers burden without ability to protect selves HAMMONTREE v JENNER - "strict liability while driving?" - D claimed epileptic seizure. Drove car into bike shop. Holding - Insurance does not justify strict liability for drivers - settlement and claims adjustment would be chaotic with that holding, so only the legislature can make that type of reform Contrast to products manufacturers - they are engaged in business of goods distribution and part of marketing enterprise that should bear cost of injuries to defective parts (p22) Court notes history of seizures but regularly seeing doctor and taking meds: "no inkling or warning that he was about to have a seizure" beforehand (p14) General rule - driving illness and becomes unconscious cases are negligence cases (p19) Cites product defect case - strict liability when product place in market knowingly wasn't inspected for defects and has a defect (p20) P wants that theory on drivers with physical conditions that could lead to unconsciousness=>strict liability (p20) Courts split on liability when intervening and unexpected event, natural disaster, or intentional act of third party occurs Those that don't impose liability are retreating from strict liab logic that fault doesn't matter; it's about unusual risk (E340)

Products Liability - Purpose - we don't expect/care if you inspect it;

Distinguish from strict liability

Merchant Casual seller excluded Service provider is not merchant of goods used to provide services Commercial lessors are included D is a merchant whether or not P dealt directly with merchant (i.e., everybody in the commercial chain from mfg. to sale is on the hook) Defective Product Mfg. Defect (production anomaly) Product is different from other products and is more dangerous than consumers could expect E.g., one in a million Design Defect Alternative way to physically construct the product
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 Alternative way to physically construct the product Alternative is safer Alternative is cost-effective Alternative is practical (does not impair the intended purpose of the product; i.e., butchers knife can be made dull, but it wont serve its purpose) Warnings Clear, prominent, understandable to the class of anticipated customer (i.e., bilingual etc.) No warning = defective product Defect existed when the product left the hands of the D P makes foreseeable use of the product even if non-intended use Defenses: comparative negligence most prominent

Manufacturing defect - just have to show product departed from intended design; manuf liable even in used reasonable care in every aspect of process
Basis is condition of product, not conduct of DEF (E349) Closest to "no fault" strict liability Rare today with manufacturing proceses standardized

GM - not strictly liable if product not defective when shipped; if defect introduced after sale, no strict liability for dealer Manufacturing defect - imperfections in small % of process that doesn't conform to majority of products according to design (misconstructed regardless of whether intended design was safe (p67) RESTATEMENT 2 402A - strict liability under manufacturing defect theory Design defect - entire product line KEEN - Rule - 1) injury from condition of product; 2) condition was unreasoanbly dangerous (defective); 3) condition existed when product left manufacterer's control and arrives to consumer without substantial change in condition (p16) Design defect - unreasonable risk of harm even if made according to manufacturer plans - design itself improper (p71) Lots of different ways to define it, but using Uniform Act balancing test: Unreasonably dangerous if manufacturer shouldhave used alt design, based on: Reasonable probability that product as originally designed would cause serious harm Reasonable prob of harm from original vs. from alternative design Tech feasiabiliy of alt Relative cost of alt Time reasonably required to implement alt Manufacturer who sells defective product liable for harm to ultimate user
Consumer expectations test - "dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics (RESTATEMENT SECOND402A cmt i.) Positives Doesnt require PLTF to demonstrate safer way to design product Limits May fail to get to jury if ignores that simple redesign would have fixed, even though otherwise functioned as expected Risk/utility - "negligence test for product" (A205) - balance cost of designigng product to prevent risk, effect redisgn would have on utility of product and extent of risk product poses Foreseeability? A says not crux of issue because easy to show except in long-latency diseases (A205) THIRD RESTATEMENT - PLTF must also establish a reasonable alterantive design to eliminate risk to recover Bad for unreasonably dangerous and no redesign, e.g., asbestos, cigarettes KEY TURNS - 1) have expertise to redesign? 2) possible to separate defective parts from whole design when complex combo of design choices? Means saying product shouldn't be made at all? Consumer choice vs. tort liability theoretical split (A107) Manufacturer liable for foreseeable misuse Failure of warnings - may be cheaper to have consumer take precautions in use

EMERY - Rule - failure ot warn requires: Product defective - unreasonably dangerous to user *Can be rendered unreasonably dangerous by failure to warn of injury-causing risk associated with use of technically pure product (p44) *Also if purchasers misinformed or inadequately informed about risks or how to minimize it (p44) Defect caused accident/injuries; and Defect traceable to D Holding - marshmallows are hazardous for young children - sweet and appears soft and innocuous, but can obstruct breathing--->evidence at least raises genuine issue of material fact re: causation (foreseeable that reasonable parent would not have known of danger without warning p50, 53)
May turn on reasonableness standard re: adequacy of warning Consider Extent of risk Likelhood it will arise (i.e., type of misuse is sufficiently likely) User's likely understanding about danger Means available to convey warning Likelihood that too many warnings will reduce effectiveness of each Etc STILL HAVE TO SHOW CAUSATION - JZ TURN - VACCINATION EX ON A210 Warnings may be too dangerous even with warning (design defect blurry line) Exception - Rx - if unavoidably unsafe, can get away with warning over alternative design

DEFENSES Possible contributory neg - negligent failure to follow instructions; 2) failure to discover defect; 3) unreasonable or negligent use with knowledge and appreication of danger; 4) misuse (but not foreseeable misuse) Hard case - intervening cause as one of above killing proximate cause Assumption of risk (even if strict liability situation - check JZ case to see if cont is allowed in strict liability circs)
Breach of express warranty - seller makes specific representations about product and buyer injured from failure to fulfill them RYAN - warranty case where special circ allows you to recover more than cost of product (food exception)--->no need to show negligence, but still must show privity (not with the baker) MACPHERSON - negligence case where no longer need privity, but still have to show negligence Limits Only applies to specific reps about product feature May also require buyer to notify seller in short time May have to prove reliance on warranty (not case under UCC though) Feature that was subject to warranty caused injury Breach of implied warranty of merchantability - arises by law, not based on seller reps - PLTF shows DEF was dealer of goods of X kind, sold goods, they were not fit for ordinary purposes for which they were sold, personal injury resulted from unfitness Limits Can be disclaimed States may limit recovery so bystanders lack claim Requires timely notice of breach to seller Misrepresentation - DEF made misrepresentation (either intentionally, recklessly, negligently, or innocently) about fact material to transaction, 2) PLTF relied on misrep, 3) injury because product not as represented (E346) Limits

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Limits Must establish awareness of representations Must have been inaccurate representation May not support recovery by third parties/bystanders Policy Products more sophisticated-->difficult for consumers to assess risks Buyers lack personal relationship with sellers, so can only rely on information from distant manufacturer Extensive advertising encourages use-->quid pro quo to stand by products

Traynor ESCOLA concurrence Availability of insurance Cost of damage from defectively dangerous products best borne by developers, even if no negligence (as a cost of doing business) (P693) Manufactuerers can anticipate and guard against injury, but public cannot (in no position to to refute evidence or find cause of defect in manufacturing process) (p30)
Better suited to redistribute cost of injuries through insurance to all users Price will reflect true cost/not externalize accident costs Risk of liability will encourage manuf to make safer products, discover and disclose risks

Deterrence Can show proper care to defeat inferred negligence if it is clear, proper, and can't rationally be disbelieved (p31) Mass production - producer and consumer more distant; consumer lacks means or skill to investigate product + advertising builds up confience in products (p38) Access to evidence Obligation to consumer holds even though product goes through intermediary and retailer is in no position to test product, but just a conduit (p38)
Ex Loss of business doesnt count, need physical harm 402A - liability limited to those "engaged in business of selling a product"

KEEN - shopping cart provided to customers for convenience is NOT a product SOLD or RENTED by store or placed into stream of commerce by store, so just reaonable care for part of premises standard Premises standard for storekeeper - reasonable care; not strict products liability when not part of distributive chain of defective product (p25) When giving a liecnse to use something, different to be in business of doing it and charging for it like rentals (laundromat) and when transaction not all enterprisers subject to strict liability for harm thatresults from unreasonably dangerous conditions utilized by them, i.e., defective shopping cart is similar to a slippery floor Those who render services to others - reasonable care, not strict liability (719) Doctors, hospitals, and medical pros NOT treated to strict liability because not like mass producers that can bear costs of accident + not bargaining for product, but professional services Fine line in servies - repairmen - generally not strictly liable for defects in component parts used or repair process (even though hard to prove whether product failure was due to part or process used) (P720) Installers - may be less protection a la strict liability if it's not the seller, but an independent contractor like a plumber
Usually no recovery if physical harm is limited to product itself May say need "sale" but court has rejected this argument when user harmed 402A covers products, not services Both manufacturer and intermediate seller can be liable, yep, all intermediate sellers under SECOND RESTATEMENT But indemnification, state statutes and judicial decisions can limit Test for manufacturing vs. design defect - did problem arise from aberration or were all designed in same faulty way Warning generally not accepted as defesne for failure to redesign to make reasonably safe EMERY not just"intended" use, but case law recognizes duty to warn re: foreseeable misues that result from human nature Could use theory of comparative negligence or assumption of risk on part of user though True warning goes beyond how to use sufficiently and includes nature, severity, scope, means of avoidance With failure to warn, still need causatoin, so where user not likely to have seen warning, no cause Re: failure to warn - no duty to tell people what already know

MACPHERSON V BUICK MOTOR CO. - "Broken wooden wheel case" - D is car manufacturer. Sold to retailer. Retailer to P. Wheel of defective wood - collapsed. D bought wheel from another manufacturer, but D did not inspect it (no claim knew of defect though) (p1) Holding - manufacturer of anything who puts the product on the market without inspecting it that could foreseeably harm a third party if negligently made = subject to liability (p7) Overruled contract privity requirement (can sue even if no contract relationship), BUT still need to show 1) known "probable" danger based on a known use; 2) knowledge that danger shared with others and not just buyer; 3) defective when left manufacturer's possession (have to prove negligence)(A198) BYSTANDERS now that contract privity is gone Negligence coud come from failing to inspect or test, misrepresentation in advertising, fail to disclose known defects (P684) Res ipsa could help, but more uncertainty as products get more complex Applied - D was car dealer and manufacturer, so responsible for finished product and for inspecting (p13) RYAN V PROGRESSIVE GROCERY STORES - "Pin in the Bread case" - buys bread after asking for Ward's bread. Pin in it. Rule - where buyer makes a purchaser in reliance on seller's skill or judgment (regardless of whether she's a manufacturer), there is implied warranty that goods should reasonably fit the purpose (p13) Statute says no implied warranty whfor name brand specified goods (p16) Rule - where seller sells good of X description (even though seller didn't make it) and I buy goods by that description from that seller, there's implied warranty that they will be of merchantable quality (p18) Holding - Sale was by description, defect was hidden, and inspection was impossible--->burden on seller, who can blame manufacturer if she wants (place loss where blame lies) (p27) Damages - for more than just cost of bread because seller knew it would be eaten (p28)
RESTATEMENT SECOND 402A - basically warranty without privity requirement - still must show duty (ordinary consumer), cause, proximate cause, harm, but no breach Recovery By a user or consumer From a seller who is engaged in business of selling the product and product is expected to and does reach user or consumer without substantial change in condition in which sold (dealing with res ipsa) For a physical harm Caused by a product in a defective condition unreasonably dangerous (some courts remove "unreasonably" to avoid confusion with negligence) Unreasonably dangerous - "dangerous to extent beyond which would be contemplated by ordinary consumer who purchases it , with ordinary knowledge common to community as to characteristics THIRD - avoids problem of whether can be defective and not dangerous and vice versa by dropping "unreasonably dangerous" and setting out three categories Doughnut Case (Ferguson v. Winkler) - machine made in way that knew workers would jimmy it to turn off safety stopper?

Miscellaneous Tort Issues Vicarious Liability Look for active tortfeasor and passive party and their relationship

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Look for active tortfeasor and passive party and their relationship Employer and employee Employer liable for employees torts done in the scope of employment Rule of Detour = liability for employees minor detours on the job Rule of Frolic = no liability for employees major detours on the job Generally, intentional torts are outside the scope of employment unless (1) force required for the job (bouncer); force furthers the employers purpose; (3) collecting practices are part of job Hiring Party and Independent Contractor No vicarious liability Exception: Occupier of land vicariously liable if IC hurts an invitee Automobile Owner and Authorized Driver No vicarious liability Exception: use furthers the owners purpose (i.e., running errands for the ownerGo get my fuckin laundry, punk) Parents and Children: No vicarious liability at all for childrens torts Multiple Defendants General Rule: Out-of-Pocket D can recover from co-D pursuant to percentage of fault found by the jury Indemnity Exception: Out-of-pocket D can recover 100% from co-defendants if Out-of-pocket D was vicariously liable only Products Liability Case: any party other than mfg. can get indemnity from mfg. Immunities Governmental Immune when engaging in traditional governmental activities involving discretionary decisionmaking or Duty owed to the public as a whole and not just to the P at the time Can be liable if Routine Non-discretionary or Proprietary Employers Immunity in Workers Compensation Cases Boss is immune from negligence suit; workers compensation is exclusive remedy for on-the-job accidents Co-workers are not immune Family and Charitable Immunities Abolished Loss of Consortium Must be married Uninjured spouse gets separate action against tortfeasor Gets compensation for (1) loss of services (2) loss of society or companionship (3) loss of sex

Damages/Harm - actual loss; no nominal damages or threat of future harm

Harm/Damages No nominal damages where no actual loss occurred Threat of future harm not enough Eggshell Skull Doctrine: D takes the P as he finds him D must pay for all damages suffered by P even if extent of damages is unforeseeably great Applies to all torts How should jury assess pain and suffering? (usually through single award for past and future harms - single recovery rule (administrative difficulty of periodic recoveries)); money is vehicle to do it Single recovery rule (E400) Possible exception - cancer as separate disease giving rise to separate cause of action (E414) Policy - multiplies litigation; erodes single recovery rule; could award damages for in initial action for increased risk of developing cancer (loke the "loss of a chance" cases) (E415) Laws given Massachusetts General Laws - Enumeration[ of actions which may survive] Wrong death; damages Collateral source rule - hold DEF responsible for losses even if PLTF has them paid by 3rd party so no windfall for DEF by PLTF being cautious; still pay so long as charity that was given to pay for your injuries; goal is to not deter charity (criticism - compensates for losses that don't occur) (E419) Subrogation - if you get damages, you may have to give back to insurance company. Wrongful death (D804) Create new cause of action and vests it in survivors, so recovery does NOT go to deceased's estate and NOT subject to claims of deceased's creditors Based on idea that heirs are harmed by absence of decedent in their lives (e.g., loss of companionship and advice) So, wrongful death is NOT a separate tort in itself; it's an action for a recognized tort, so only differences is how deal with damages (E425) Pecuniary loss damages in wrongful death actions (D807) Courts estimate in two ways Loss to dependents measure Direct or indirect financial support lost by dependents Evidence of reasonable value (e.g., living quarters), or total income Loss to estate measure - acccumulations or savings cut short by untimely death (add up what probably would have earned after subtracting costs would have had to maintain) Non-pecuniary damages in wrongful death cases Traditional - "pecuniary loss standard" - says only direct financial contributions or services decdent would have given to survivors (E427) Strict standard would mean that wealthy survivors would receive nothing (E428) Child...nothing for emotional loss, but no evidence of actual financial loss to survivors (E428) Companionship, society, love, advice, guidance Most states allow recovery for companionship, society, advice and guidance, sometimes on theory that these have pecuniary value (D812) Survival action (D804) Provide for survival of whatever action deceased would have at if able to sue at moment of death, e.g., pain and suffering, loss of wages, medical expenses between injury and death. Right to sue vested in estate and subject to claims of creditors Calculating future Y Community earnings would incentivize dangerous plants to be located in poor areas? Still, risk that retired and kids hurt by purely economic measure, though juries may find own reasonable figure (430) Types of damages Nominal

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Nominal Punitive NO punitives for NEGLIGENCE (MCDOUGALD) Liability after death Liability after death of tortfeasor - most courts deny recovery of punitive damages Liability after death of victim - no pain and suffering where victim died, but recovery of punitive damages may be allowed Compensatory (PER DIEM??) (usual: medical/related; lost earnings and capacity; pain & suffering E401) SEFFERT - Pain and suffering (PER DIEM) Literal feeling of pain and suffering anticipating/during/after accident Fear and anxiety Humiliation Loss of life's pleasures? Damages not excesssive because injuries painful, disabling, permanent Pain and suffering for past and future using per diem calculation Calculating damages System makes tradeoffs - judge has to weigh whether X evidence has probative value or will just have prejudicial effect (anecdote of woman falling at Giant Eagle and hand shaking in ambulance - questions in front of jury about alcoholism) Issue of taxation in calculating lost earnings Compensatory damages are not subject to income tax (but lawyer gets 1/3) Figuring future lost earnings (how long WOULD HAVE worked, benefits, pay, costs of employment) Most calculate future wage for original life expectancy , but with that, no living expenses for any years his new life expectancy is short his full work life expectancy, so coldblooded could go to jury with that if not too worried it sounds calculating (E 408) FORK in courts on life expectancy as element in damages, but most deny (though those may still allow jury to consider as part of pain and suffering - mental anguish at realizing he'll die before his time + lost earning capacity is assessed based on pre-accident life expectancy) Type of work would have done (partner at firm,but hated and planning to quit; unemployed but planned to work What salary would have been (prior advancement, employer's fortunes projected, state of economic sector, prospecs for promotion, alternative employment after injury, etc) Fringe benefits (insurance, retirement, company car, et) Compensation for being deprived of option to work is possible, should circumstances (e.g., has a child) require her to do so + odds are good a young mother would return (E415) FLIP FOR AGE - old, retired person may not get pension or social security income compensation because will continue to receive despite injury (collateral source rule doesn't bar) (E419 Discount to present value/inflation rate Med expenses include future (future cost of surger, value of pain, costs of rehab, lost time at work, therapeutic expenses) Loss of enjoyment of life (most courts recognize as compensable, but FORK over whether fit in pain and suffering or separate - MCDOUGALD V GARBER) (E405) Whether or not combined, key is PLTF's "ability to function as a whole person" (E405) Distinct from disability - loss of enjoyment = consequence; disability = condition and losses can result from that (E406) Assessed based on pre-accident life expectancy-->if they do, they makes up partially for any separate award for lost years themselves (E414) Alternatives Worker's comp tables for treating all equally based on injury But loss of hand to pianist different than to X Account to draw from during life for therapy, etc But incentive to linger + no lump sum to pay lawyers from.. "Lodestar of tort" - "make whole"

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