Torts Outline Fall 2010 Amanda Leiter Intentional Torts: Intentional and purposeful: intend to act for the

purpose of inflicting a harm or offensive contact on P, or realizing that such contact is substantially certain to happen Think of this as DESIRE to cause the end results (car hitting pedestrian due to speeding is not intent) -specific intent (you MEANT to do it) OR -general intent (substantially certain, but lacking in desire to do hurt)still a high threshold) *Remember, no intent if not a voluntary act (fainting and hitting someone-no intent) *Intent is the knowledge that the specific consequence will occur or a desire that it occurs Restatement Definition of Battery: 1. An actor is subject to liability to another for battery if: (a) He acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) A harmful [or offensive] contact with the person of the other directly or indirectly results. [2. No battery if no intent, though could still be negligence if act threatened bodily harm.] Garratt v. Dailey 1955 Harmful Contact does not have to be with body; here harmful contact was with the ground. Court held that a 9 year old can have intent. Age is not the primary interest, is experience, understanding and capacity are. Looking at the time sequence at the events, we can be substantially certain that he knew she would fall. Spivey v. Battaglia 1972 -Attorney alleged assault and battery and negligence -Defendant says he did assault and battery not negligence b/c of the statute of limitations that would protect him -The standard for battery is an objective standardwould a reasonable person be able to foresee these injuries? -Court says no, a reasonable man could not be substantially certain these results would follow (missing intent), so this should be a negligence case

Role of a Mistake: Ranson v. Kitner 1889 -Mistake does not negate the intent (if you have the intent to commit the action, even if its a mistake, youre still liable) -other examples: mistaken arrest -even if they made a mistake about WHO you were, they still had the intent to arrest you -other example: trespass (if you are mistaken about where you boundary line is and you build a shed on the wrong side of a property line-you are still liable for intent -Policy Reason: make people think twice (look up boundary line), also remember the purpose of Tort is to make the plaintiff whole again (so even if it is a mistake, the defendant is more liable) McGuire v. Almy 1937 -Just as for children, we will not relax the intent standard for people with mentally insanities (unless EXTREME circumstances...i.e.: 1 year old and severe mental retardation) -Once we recognize you have the metal capacities to understand circumstance, you are held liable -can they entertain the idea of intent? Public Policy Reason: we want to make the plaintiff whole again; we also want to make care-givers responsible (want to give the care giver full incentive to do a good job)

Transferred Intent: battery, assault, false imprisonment, trespasses to land and trespass to chattels Talmage v. Smith 1894 Defendant Smith has several sheds on his property, saw 6-8 boys on the roof of one of his sheds -Intention on the part of the plaintiff to HIT someone and to inflict unwarranted injury -Transferred intent: applied whenever both the tort intended and the resulting harm fall within the scope of the old action of trespass-that is where both involved direct and immediate application of force to the person or to the tangible property. There are 5 torts that apply: battery, assault, false imprisonment, trespasses to land and trespass to chattels. When the defendant intended any one of the five, and accomplished any one of the five, the doctrine applied and the defendant is liable, even if the plaintiff was NOT the intended target. -eggshell plaintiff rule (can be thought of as transferred intent): you intend to do something minor, but something much worse happenstransfer intent to the much worse offense Battery in Cole v. Turner 1704 -least touching of another in anger is battery -in a narrow passage, if one touches the other gently without and violence or design of harm, there will be no battery -there will be battery if one is to force his way in a rude inordinate manner or any struggle about the passage to that degree as may do hurt is a battery Wallace v. Rosen 2002

-Fire drill right after an actual real fire in the school -Wallace claims it was Rosens push that caused her to fall -We take an objective approach and add in crowded world rule and expect plaintiff to be toughened You have to get over the initial objective standard about a reasonable person to make then move into eggshell plaintiff (subjective) Fisher v. Carrousel Motor Hotel, Inc 1967 -battery extended to touching an object in ps immediate contact (purse, plate etc.) -Plaintiff was staying at the defendants hotel during a work conference. -narrow expansion of battery to touching of the plate instead of touching of Ps actual body. However, his arm/body was directly connected to the plate. Restatement Definition of Assault: 1. An actor is subject to liability to another for assault if: (a) He acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) The other is thereby put in such imminent apprehension. [2. No assault if no intent though could still be negligence if act threatened bodily harm.] Usually mere WORDS do not constitute an assault) -not every battery will constitute and assault: D kicks a sleeping plaintiff-battery by no assault -hinges on what the plaintiff believes (no assault for a loaded gun P believes is unloaded) de S et ux. V. W de S 1348 -innkeepers wife refuses to let customer in, and the customer strikes at the door with a hatchet -everyone agrees he didnt actually hit her Why are we allowing her to recover? -amounts to more than just scared - intent there to actually harm her -the law should dissuade people from acting in this way (liable for their consequences) -the law is slowly evolving towards recognizing more than just physical harm Western Union Telegraph Co. v. Hill 1933 The issue isnt so much what defendant knows--the issue is with plaintiff, could she reasonably think he could reach her (imminent apprehension) Hypos: pp 39: Can we meet the definition of assault: 1.) Leering and making kissing signs -doesnt matter unless really reaching towards you (assault is not just words) -depends on the context: where (dark alley), what is the distance between the people

2.) Brining a gun to an interview (lets say police officer) and leaves in briefcase -no intent and the interviewer doesnt know its there (impossible to have apprehension) Putting it on your lap: gesture of putting it on your lapcreates apprehension (implicit threatening message) -youd argue this guy had substantially certainty that taking out the gun during an interview would cause imminent apprehension 3.) Pointing a gun at Ds back (w/o Ds knowledge) subjective v. objective -this cannot be assault b/c the plaintiff was not aware at the time (subjective is right answer)obviously there is some ability for the jury to second guess you (if completely unreasonable) -this is different than sleeping beauty argument in battery 4.) Making threatening gesture while saying if you werent an old man Id hit you -are you holding back in an obvious way? Will depend in the way the words are delivered. 5.) Threatening to hit D, who happens to have a black belt in karate? -imminent apprehension is NOT fear -he could still have imminent apprehension can exist even if the plaintiff is never fearful -Yes, the words can change the gesture into something can be threatening *words themselves can never be an assault must be accompanied by a gesture (ie: reaching into a pocket) -words can both take the sting from a gesture or add a sting into a gesture

False Imprisonment 1. An actor is subject to liability to another for false imprisonment if: (a) he acts intending to confine the other or a third person within boundaries fixed by the actor, and (b) his act directly or indirectly results in such a confinement of the other, and (c) the other is conscious of the confinement or is harmed by it. [2. No FI if no intent, though could still be negligence if act threatened bodily harm.] (moral pressure to stay confined is normally not false imprisonment) Parvi v. City of Kingston 1977 -confinement: he was brought to the middle of nowhere with no way to get back -the courts have read confinement in a broad way -conscious of it? (New York doesnt have harmed BY it) -NY requires you to be conscious of the confinement at the TIME. -outside NY there would be liability w/o even having to prove conscious of confinement, b/c he is hit by a caras a consequence of his confinement. -there is specific intent for the confinement Hardy v. Labelles 1983

-in this particular case the words are suggesting shes guilty of a crime, and shes staying willingly to clear her name, no false imprisonment because she could have left, stayed at her own will -false imprisonment is parallel to assault here: threat of future action is not enough, the action must be imminent Enright v. Groves 1977 If you are convicted of the crime for which the police are arresting you, this is a complete defense to the tort of false imprisonment Here P was not convicted of failure to show ID, she was convicted of no leash rule, D is liable for FI Whittaker v. Sanford Supreme Court of Maine, 1912 -notion of consent in Whittaker: for the duration of your consent, you are not able to argue false imprisonment (example on an airplanethere are reasonable expectations to stay onboard) -it IS false imprisonment b/c they took away any means to get her to the shore (took away the dingy from the boat) -a situation becomes false imprisonment when it stretches past the limits of your consent Intentional Infliction of Emotional Distress One who by extreme and outrageous conduct intentionally or recklessly 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. (P must actually suffer the emotional distresstwo Ps could be exposed to the exact same treatment and one may have a claim and the other not) State Rubbish Collectors Assn v. Siliznoff 1952 (nature of the injuries) Intentional Infliction of Emotional Distress is a newly emerging tort at the time of this case It is a cause of action when one intentionally subjects another to the mental suffering incident to serious threats to his physical well being, whether or not the threats are made under such circumstances as to constitute a technical assault. -A couple arguments presented for only allowing this tort when the threats are so outrageous that they create a physical injury against the plaintiff (ie: him throwing up and missing work)goes against this. Solcum v. Food Fair Stores of Florida 1958 (nature of the actual threat) Case of first impression in Florida. They dont rule on whether IED should be adopted, but rather that it should not under these circumstances. -look to other authority: a line of demarcation should be drawn between conduct that is likely to cause OBJECTIVE view of the threats: this did not extend passed the bounds commonly tolerated in society -it is uniformly agreed that the determination of whether words of conduct are actionable in character is to be made on an objective rather than subjective groundthere is no inclination to include all instances of mere vulgarities *note 2: a certain toughening of the mental hide is a better protection than the law could ever be reflect the danger of creating too trivial a standard for the tort Harris v. Jones (about the emotional distress suffered) 1977

Harris was targeted and made fun of repeatedly by his boss for stuttering, nervousness. 1.) The conduct must be intentional or reckless 2.) The conduct must be extreme and outrageous 3.) There must be a causal connection between the wrongful conduct and the emotional distress 4.) The emotional distress must be severe Holding: (only information about the emotional distress, not the conduct) 1.) Clear he was intentional 2.) we need not decide 2 and 3 b/c 4 is lacking 4.) the evidence that Jones reprehensible conduct humiliated Harris and caused him emotional distress, which was manifested by an aggravation of Harris pre-existing nervous condition and a worsening of his speech impediment, was vague and weak at best *the humiliation endured was not, as a matter of law, so intense as to constitute severe emotional distress required in element 4 to recover for the tort *Conduct must exceed all Bounds Usually Tolerated by Decent Society* Taylor v. Vallelunga 1959 -P was a witness to the battery of her father, but D did not know she was there or could see -she cant claim battery or assault (no bodily harm, and no imminent apprehension for herself) -defendants did not know the daughter was there, so there could have been no intent (either strict intent for purpose of or substantially certain) -no substantial certainty or strict intent *Shows importance of the absence of transferred intent for this tort* -Courts have really tried to cabinet that the intent is aimed at the particular personso as not to become a kitchen sink tort

Trespass to Land Daugherty v. Stepp 1835 Yes, every unauthorized and therefore unlawful entry into the close of another, is a trespass (damages will depend on the acts done on the land and the extent of injury to it therefore) What are the damages: trampled on your shrubbery? -Court would award nominal damagesjust to commemorate the fact that the trespass occurred -adverse possession (in property law)a neighbor could slowly encroach on your land and you could lose itthese nominal damages were meant to deter this -Tripped and fell no liability (complete accident) v. mistake, you think the line for property is somewhere else. Herrin v. Sutherland 1925 -Does firing a shotgun through the air above the premise of another constitute a trespass? -Yes, the defendant interfered with the quiet, undisturbed, peaceful enjoyment of the plaintiff -land has an indefinite extent, upwards and downwardswhoever possesses the land posses all the space upwards to an indefinite extent

- also factor in danger of a shotgunto be subject to the danger incident to and reasonably to be anticipated from the firing of this weaponwould seem far from inconsequential -it cannot be stated that a cause of action is not stated, for nominal damages at least. Judgment affirmed. Leiters casenot in our book *Case about a smelter that was emitting a lot of particulate pollution into the air and then landed on different properties around. -Is this trespass? -this strict of a definition in trespass is counter to our industrial society in the case of these microscopic particles, you have to show substantial harm Rogers v. Board of Road Comrs for Kent County 1947

-cites the restatement saying that a thing left after consent is terminated is a trespass Holding: -judgment of the court dismissing the cause of action is reversed and the cause remanded for such further proceedings as shall be found necessary -principle of limited consent if you give permission for a limited time, then the continued trespass is a violation -parallel to whittaker case about the role of consent -plaintiff alleges the behavior, defendant alleges consent, plaintiff alleges its limited consent (either by time or by physical space) Trespass to Chattels 1.) A trespass to a chattel may be committed by intentionally a.) Dispossessing another of the chattel, or b.) Using or intermeddling with a chattel in the possession of another One who commits a trespass to a chattel is subject to liability if, but only if, a.) he dispossesses the other of the chattel or b.) the condition, quality or value is impaired c.) the possessor is deprived of the use of the chattel for a substantial time, or d.) bodily harm is caused to the possessor or to someone/thing in which the possessor have a legally protected interest

Glidden v. Szyiak 1949 Facts:

-to recover from a dog bite sustained by the plaintiff -plaintiff was encountered defendants dog, Toby and engaged in play with him, climbed on his back and pulled his earsthe dog snapped at her and bit her nose -minimal scars -defendants argue that the plaintiff Elaine was engaged in the commission of trespass at the time of her injury and is barred from recovery under the statute -statute: 23: strict liability of the owner of a petsee page 75theres no strict liability if there is a TRESPASS (defendant is saying no strict liability here because there is a trespass -Trespass to Chattels differs from trespass to property, on the grounds that it is not given the legal protection by an action for nominal damages for harmless intermeddling with the chattel -rather than given protection by nominal damages, he is afforded the privilege to use reasonable force to protect his possession against even harmless interference SOME level of harm to chattel is required -Because the dog was not hurt by her play, the intermeddling were harmless and she could not be accused of trespass to chattel (property) CompuServe Inc. V. Cyber Promotions, Inc. 1977 Trespass to chattel has been extended to encompass unauthorized use of the personal property Physical contact has been expanded to encompass electronic signals It is undisputed that the plaintiff has a possessory interest in its computer systems Contact w/ plaintiffs computers is clearly intentional Damages proved by expert witness and by the fact of its loss of customers for this reason

Conversion (forgotten tort) 1. Conversion is an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel. 2. [Relevant considerations include: (a) extent and duration (b) harm to chattel (c) inconvenience and expense to owner etc.] Pearson v. Dodd United States Court of Appeals, District of Columbia Circuit, 196 Because no conversion of the physical contents of appelles files took place, and because the information copied from the document in those files has not been shown to be property subject to protection by suit for conversion, the ruling by district court that appellants are guilty of conversion is reversed. -this is more severe than trespass to chattels, in TC the plaintiff still remained the owner, in conversion we argue that D is now acting as owner and should be liable for all. Privileges: If yes to each question, move from left to right, if no at end, you have an intentional tort, if yes at end, or no at any other point, no intentional tort. ALWAYS MAKE OUT THE INTENT AND TORT

ELEMENTS BEFORE MOVING TO PRIVLIEGE (defendant has the benefit of doubt about consent)

Did D: Have Ps Consent? Act in Defense of Self/Others/Propert y? Act out of Necessity? Have Other Privilege?

Did D Have INTENT?

Are Elements of (Any) Intentional Tort Met?

1.) Recovery of Prpoerty: Use of force to recover property, is NOT privileged, unless: 1. The actor acts promptly after his dispossession or after his timely discovery of it; 2. The force is reasonable (as for defense of property, deadly force is never reasonable); and The actor first asks the other to give up possession of the chattel, except where the actor reasonably believes a request to be useless or dangerous Hodgeden v. Hubbard 1846 -limited by time and reasonable force, further limited by UCC where there is a voluntary surrender you must seek legal remedies, not physical (limited use of force, after initial time period, we want P to seek legal remedies not physical) -privilege to use force to recapture chattel (limited in time: fresh pursuit or immediately after -the efforts cannot endure a lapse of time or a halt once the discovery of the dispossession was made or the privilege of force is lost and they must resort to law (restatement of torts 103) a resort to any force at all is justified UNTIL THE DEMAND has been made for the return of the property Bonkowski v. Arlans Department Store 1968 Appeal from jury verdict of false arrest and slander for plaintiff Did D have intentAre elements of any intentional tort met Did D have a privilege? (shes suing for false imprisonment) He had specific intent to detain herfalse imprisonment (if he did detain her)privilege of recovery of property Maybe he argued that she stayed to clear her name (parallel jewelry case) -restatement of torts 120a: privileges of a merchant to detain someone for a reasonable investigation when he has reason to believe they have taken chattel unlawfully -if d reasonably believed she had taken the chattel unlawfully he is protected by privilege

-Recovery of property is treated differently in different jurisdictionssidewalk? Entry way? -Jurisdictions divided over how convinced the shop keeper is? What constitutes reasonable belief? -How Long? -How far the privilege extends past the door? 2.) Defense of Property Katko v. Briney 1971 (unreasonable force)

The court ruled that using deadly force on intruders in an unoccupied property was not reasonable or justified. Briney would have been justified in defending himself with the shotgun if he had been home during the intrusion. The case stands for the proposition that, though a landowner has no duty to make his property safe for trespassers, he may not set deadly traps against them. --"the law has always placed a higher value upon human safety than upon mere rights in property"
3.) CONSENT: (consent doesnt have to be a defense, you can also think of it as an element of the prima facie case of an intentional battery: unwanted contact) 1.) Consent need not be expressly given (no words necessary, can be gestures) 2.) Evaluated objectively not subjectively (reasonable person in the defendants position) 3.) Interpret the plaintiffs conduct through the lenses of the cultural and social norms are of their interaction 4.) Consent can be limited in time and duration (think about boat case) *In order for fraud to negate consent, the fraud has to directly relate to the actual thing you are consenting toex: college boy saying he is in love with someone to get consent for sex, this doesnt negate her consent OBrien v. Cunard SS Co. 1891 -she has correctly made out the battery: it is a harmful, unwanted touching that the doctor did intentionally once youve established the tort, then you move to privileges If the plaintiffs behavior was such as to indicate consent on her part, he was justified in his act -His behavior must be considered in connection with the surrounding circumstances -she extends her arm, she stays in line with everyone, she accepts the card and uses it to get off the boatconsent Hackbart v. Cincinnati Bengals, Inc. 1979 Would this be battery in any other context?yes D argues that you give your consent to harmful contact when you go out onto the field. -violation of non-safety rules (offsides etc.) doesnt negate consent but violation of a safety rule does negate consent (this makes sense)like this to the back of his head -presumed consent extends only to the traditional scope of the game -battery not privileged by consent here (reasonably manifest consent even if no words)

Mohr v. Williams 1905 -when a doctor obtains a patients specific consent for a particular operation he may not perform another operation on the patient without her consent. A patients consent is implied when an emergency situation arises. However, this does not allow the doctor a free license to attempt to remedy all problems found that are not life threatening *Usually in emergency situations, especially life-saving, consent is implied. As a public policy reason, we dont want doctors hesitating when attempting to save someones life DeMay v. Roberts 1881

There is no consent b/c fraud in inducing consent negates the consent. The doctor acted in a way to intentionally mislead her (mistake on the part of the defendant is not a factorit is the responsibility of D) -note that informed consent cases are now commonly brought up under negligence, but it also fits well here under intentional privileges *think about HIV hypo-attorney for D would want to phrase it as consent to a non-infected partner

4.) Self Defense (if evidence of SD is unclear, benefit is given to Plaintiff) -to prevent an impending battery or stop one that is in progress, it cannot be used to remedy the initial wrong -limited to an objectively reasonable amount of force (must be appropriate to the threat) -typically words do not constitute a privilege to self defense -some jurisdictions require retreating force before responding with force -most however do have an exception for ones home -self-defense privilege is transferable: so if in an effort to protect himself against A, defendant accidently hits B, his privilege is transferred to the battery against B as well as As -even if you do not perceive the situation correctly, you can usually be privileged if it is a reasonable interpretation of the threat 5.) Defense of Others -similar to self defense: reasonable force in the circumstances -some jurisdictions hold that the intervenor is stepping into the shoes of the person he is defending and is ONLY privileged when the original person would be privileged -some are more liberal and say that if there is a mistake and intervention was not necessary or made in the wrong direction, it is privileged as long as the mistake was reasonable 6.) Necessity: (NON PERSONAL TORTS: trespass to land, trespass to chattels, conversion) A: PUBLIC NECESSITY One is privileged to commit an act which would otherwise be [trespass to land, trespass to chattels or

conversion] if the act is or is reasonably believed to be necessary for the purpose of avoiding a public disaster. (Note that the term necessity implies no reasonable alternatives to the act taken.) Surocco v. Geary 1853 -in the absence of necessity this would be a conversion case -the idea is that the house was going to burn down anyway, what the mayor did didnt cause any more damage to the house than what was going to happen anyway, the idea is that they would have had more time to get the rest of the physical goods out of the house -the only cause the mayor has against him is for the physical goods inside the house -mayor is acting out of public necessity, and he is privileged to destroy a couple houses to avoid a broader public disaster -there are good public policy reason behind thisyou dont want someone to hesitate when there is an immediate emergency B: PRIVATE NECESSITY (1) One is privileged to commit an act which would otherwise be [trespass to land, trespass to chattels or conversion] if it is or is reasonably believed to be reasonable and necessary to protect the person or property of the actor, the other, or a third person from serious harm... (2) Where the act is for the benefit of the actor or a third person, he is subject to liability for any harm caused by the exercise of the privilege. -FOR B: you are not guilty of the trespass, but you are still monetarily liable for the damages! Vincent v. Lake Erie Transp. Co. 1910 -tying my boat to the dock is both reasonable and necessary to protect it -therefore there is not tort of trespass, the action is privileged -the plaintiff now has no right to cut the boat lose and set the boat adriftif the plaintiff does this, then the plaintiff is committing trespass to chattels -the defendant will have to pay for the damages but is not guilty of a tort -doesnt seem fair that the dock owner would have to bear the burden of the damages to his dockso to make it fair, we say if you cause damage you still have to compensate *key point here is that this doesnt constitute trespassthe tort is excused the damage is not (think about this hypo: if P had cut the rope to Ds boat during the storm, P is nor privileged b/c she was technically not undergoing a tortprotecting private property is the privilege to the actual tort, so she technically would be liable for setting the boat free during the storm) 7.) Authority of Law: -defense of legal authority: police officers, military personnel, prison officials, regulatory inspectors, officials at mental health facilities -if D is duly commanded in doing the would be tortuous act, he is not liable for it -problem is with how far this extends: arrest v. arrest w/ warrant: if the court lacked the jurisdiction to issue the warrant, there is no privilege

-sometimes this is overlooked b/c the officer doesnt have to investigate ever warrant he obtains -remember, however, mistake does not protect the officer from torts: false imprisonment, false arrest -arrest w/o a warrant may be made (of course with narrow reason) by a police officer and a common citizen -common citizen more limited (felony already committed or about to be, breach of peace) -officer more expansive: sometimes for a misdemeanor, especially when committed in his presence -excessive force, even in a lawful arrest is not privileged 8.) Discipline: -Parent (or one deemed to stand in place of) and Child: necessity or orderly discipline gives person who have the control of others the privilege of exercising reasonable force and restraint upon them -there are several factors to consider: age, sex, condition of the child, nature of offense and apparent motive, influence of childs conduct as example on other children in same family; whether force or confinement is reasonably necessary and appropriate to compel obedience, whether it is disproportionate to the offense, unnecessarily degrading, or likely to cause serious or permanent harm -also may extend to those who are temporarily responsible for them (other family members, teenage babysitters, adult daycare providers, housekeepers, piano teachers, school bus driver) -in the case of teachers, discipline may be exercised even though the parent objects -there is debate about whether this privilege extends past the actual school -most school systems tightly regulate corporal punishment (held not to violate the 8th amendment or privilege against cruel and unusual punishment) -another example is military and naval officers: again limited to reasonable force necessary 9.) Justification: very narrow and rarely used privilege catch-all term for the privilege that applies: 1. When the facts meet the definition of an intentional tort, but 2. They dont meet the requirements for any traditional defenses or privileges; and yet 3. The circumstances are such that it would be unfair to hold liable. Sindle v. New York City Transit Authority 1973 -they are suing for false imprisonment-make out elements of the tort first - (yes there is specific intent and he is confining them in the bus) Looking at all Privileges: Consent-no Self-defense-arguable (this would be hard b/c there is no evidence that this particular kid was engaged in the actual activity) Defense of others-arguable Defense of property-arguable (same problem this student is not actually implicated) Recovery of Property-no Necessity-no (not a property tortnecessity doesnt apply by definition) (this was for false imprisonment) Authority of Law-no Discipline-arguable (maybe, teacher has privilege to discipline the whole class even though not all students are being bad)

Justification-the court uses this b/c none of the other privileges fits, and we believe that the bus driver did the right thingthink of this as a safety valve for the courtmatter or public policy, this is exactly how we would have wanted the bus driver to behave -kind of like an expansion of necessity (to non-personal torts) Negligence: A Duty to use reasonable care 1. 2. 3. 4. Duty to use reasonable care (reasonable under like circumstances)-Legal Question for Judge Breach of the duty (conduct that falls below the standard of care)-Usually factual for Jury Causation (causal link between conduct and harm) Damages (P may only recover for actual loss but note that this term may be extended to nontraditional losses like exposure to risk)

DUTY: Not to create an unreasonable risk of harm to another (question of law for judge) Lubitz v. Wells 1955 The father cannot be held liable b/c a golf club is not so obviously dangerous that is qualifies as negligence to leave it lying around Blyth v. Birmingham Waterworks Co. Court of Exchequer 1856 (English appellate court for civil actions) -D had installed water mains in the street, w/ a plug opposite the plaintiffs house; the plug sprung a leak during a severe frost b/c the connection of a water main was forced out by the expansion of freezing water -Large quantity of water flood ps house and caused damage - HOLDING (L states): a reasonable person acts in average circumstances, and in general you are not liable for circumstances outside those average circumstances -Objective standard of reasonable care: foreseeable risk of injury, extent of risks, likelihood of risk, any alternatives, cost Pipher v. Parsell 2007 Yes -there is a duty of a driver for care to his passengers b/c it is foreseeable that they may be injured (reasonable care, to protect other drivers, passengers, pedestrians etc.) -Second court makes a big deal that this was the second time she did this -Would this have come out differently if this was the first time this happened? YES, its not foreseeable that this would happen -if any of the elements (4) of the prima facie claim are missing, the defendant is entitled to judgment as a matter of law (no duty-no claim) -age standard often depends on the activity (driving=adult activity) -injury must be foreseeable to the driver (because this is the second time he is negligent) Chicago, B. & QR Co. v. Krayenbuhl 1902 -Ps daughter lost a foot from playing on an unlocked turn table that was part of the railway -she noted that the railway frequently left these turn tables unlocked

-inbtroduces cost benefit analysis later expanded by Judge Hand: (benefits arent avoiding the injury, the benefits are to society) 1.) likelihood that it will happen 2.) gravity of the injury -also look at the community surrounding the turntable (lots of children, families etc.)can tell you how high the risk is, or how Foreseeable it is for these acts to happen? -cost to the railroad (money and USE of the railroad)---what are the costs of having to install the lock?? Davison v. Snohomish County 1928 -cost benefit analysis of putting up guard rails for a car on a road, too high a cost for too low a risk (not many drivers in 1928) United States v. Carroll Towing Co. United States Circuit of Appeals, Second Circuit, 1947 (NY, NY)

BPL Doctrine: Judge Learned Hand B<PL B=burden of precaution, (COST) P=probability of the risk (likelihood) L=gravity of the injury *if b<PL no liability, if b>PL there is liability Critiques: its subjective, but it looks like math. This can also be pretty harsh to reduce this down to a mathematical equation (cold blooded to translate the risk of human life into dollar values), also doesnt think about alternatives (entirely different maybe even cheaper way of preventing harm)the reasonable choice, under hand is to forego the situation entirely (this is not realistic) Externalities: smoke stack example, pollution is an externality -one critique of BPL is that it doesnt account for broader society impacts that are not immediately included -Least cost avoiderthe party in a situation who could most cheaply or most cost affectively avoid the harmthink about this case: burden on families or burden on railroad to put on the lock (railroad example: apply the $20 lock rather than each family expend all the extra time/care) *keep in mind, as a risk grows, so does the duty to protect against it
(1) The Standard of Care: The Reasonable Prudent Person (TEACHES DUTY AND BREACH AT THE SAME TIME) Notes on Duty: Failure to Act: Courts rarely impose liability for failure to act. So bystander who watch a child walk into a busy street has no legal duty to act to protect the child. Creation of risk: Courts generally do impose liability for engaging in an activity that creates a risk to others. So, driver has a duty to exercise care toward those who may (foreseeably) be injured by his conduct (pedestrians, other drivers, etc.).

Exceptions for Failure to Act: Courts may impose a duty to act if. 1.) If D has a special relationship with P: -Common Carrier/Passenger -Employer/Employee -Parent/Child (parent is responsible for keeping their child out of harm and for making sure the child doesnt create harm) -Caregiver/school/child -Doctor/Patient (Movie Theater v. normal resident and installing motion detecting lights. Movie theater hasnt created the risk, but they have a special relationship with their patronssomeone would still have to prove that a reasonable movie theater owner would have installed the lights) (factory owner and factory worker, train conductor and passanger)

2.) If defendant created the risk that injured P (negligently OR non-negligently). Ex: Driver who non-negligently injures pedestrian may have duty to come to pedestrians aid. (truck driver who breaks down should warn traffic or signal traffic to go around him) 3.) If D chooses to act despite the absence of duty and then fails to exercise care. So, rescuer who injures victim by failing to exercise due care during rescue may be liable (though note that Good Samaritan Laws may address this) 4.) Creation of Risk: Courts generally do impose liability for engaging in an activity that creates a risk to others. So, driver has a duty to exercise care towards those who may (foreseeable) be injured by his conduct (pedestrians, other drivers etc.) Duty versus Proximate Cause: (courts often confuse these but use both of them to let people off the hook by one or the other) Both are equitable inquiries, in which court evaluates whether to impose liability based on fairness and other policy considerations. (whatever action D, did or didnt take, we want to excuse some of the consequencescourt is saying they dont want to impose that duty on peoplechild in an intersection) Duty: In theory, duty limits are invoked when court wish to limit liability for consequences of Ds conduct even though consequences were foreseeable (Ex: no duty to act sometimes no damages for emotional distress) Proximate Cause: In theory, proximate cause limits are invoked to limit liability when consequences of conduct were not foreseeable. (Court will eventually need to draw the line between what you caused and what you didnthow far liable are you, just those foreseeable consequences)

Vaughan v. Menlove Court of Common Pleas, 1837 (court in England) -no reduced standard of care for someone who is less intelligent or clumsy (allows for prediction and to judge their conduct rather than his character) Why do we take the objective standard? -Every defendant would try to take advantage of this

-It would be hard to prove every individuals level of intelligence, and what they in particular could reasonably do -Purpose of tort law: victim is still harmed, and we still want to make them wholethis person should still be liable Why not the flip side of maximum prudence? -not reasonable to always expect them to do perfectly -people wouldnt take business or personal risks if we asked people to live up to these perfect standards Who would the least cost avoider be? -all neighbors, or the owner of the hayrick -owner of hayrick -each hayrick is a potential source of fire, its their single point source for them to control, as well as they should be the Expert on constructing it -it should be that individuals responsibility (you know how you built it and should know how dangerous it is, best practices etc.) Declair v. McAdoo Supreme Court of PA, 1936 -this case combines duty and breach: if you are a driver you are responsible for knowing the basics for maintaining the car -you are creating a risk by driving so you have an inherent duty to protect -its what the objectively reasonable person would know (the D should have known the tire was a risk, doesnt matter if he did or not) Trimarco v. Klein Court of Appeals of New York, 1982 Shower glass broke, it was not tempered -What is common practice MAY OR MAY NOT be reasonable -Practices in your industry are welcomed and helpful to the jury, BUT we wont tell the jury that the industry standards arent reasonable. -reasonable prudence not equal to common prudence (sometimes might be, but not always!) Cordas v. Peerless Transportation Co. City Court of NY, NY County, 1941 Reasonable Person in an Emergency Standard (technically this isnt needed-but may prove beneficial to D when it is the instruction given to jury) keep in mind negligence always considers factors of time and place and context An emergency is: unforeseen, sudden and unexpected -D has the burden that showing these instructions should be given -If the emergency is created by the D then the emergency instructions dont apply -think about difference with intent: intent more culpable, when you intentionally do out of private necessity D still pays, in negligence, he is privileged

Relaxing the Standard: Roberts v. State of Louisiana Court of Appeals of LA, 1981

-we relax the standard of care for people with physical disabilities. What would the reasonable blind person do? (this is different than a reasonable person closing their eyes) Robinson v. Lindsay Supreme Court of Washington, 1979 -there is a reduction/relax standard for the reasonable/ordinary child, taking into account: age, intelligence and maturity -however, this standard is not reduced when the child is conducting an inherently dangerous, adult activity (driving, golf, driving a snow mobile) -if it is a child activity, the child standard applies (bike riding, building outdoor fires, deer hunting-keep in mind the jurisdiction) public policy reason: discourages immature individuals from engaging in inherently dangerous activities (parents watch their kids) -remember what instructions to give is a legal question, and is up to the judge Breunig v. American Family Ins. Co Supreme Court of Wisconsin, 1970 -we do NOT relax the standard for mental disabilities -public policy: limit these peoples freedom and promote good care of them -there is a VERY limited defense when it is a real, first, completely unforeseeable attackno indication this had ever happened before Professionals and a Heightened Standard of Care: Malpractice (professional negligence) Heath v. Swift Wings, Inc. Court of Appeals of North Carolina, 1979 Standard for professional is still objective! (specialists may be exception) -There is a HIGHTENED standard (it is, to some extent keyed to the level of training for specialists), but to say its the ordinary pilot w/ the exact same training as him is OVERLY subjective. -Professionals are held to a higher standard, but it is an ordinary professional standard for professionals in that field RATHER than to this particular pilot in these circumstances -be careful not to use the word average, because otherwise the profession would fall short -ordinary member of the profession Hodges v. Carter Supreme Court of North Carolina, 1954 *Professionals are not negligent just b/c they fail to do what they were set out to doits not negligent just they may have been behaving negligently. No breach of duty Boyce v. Brown Supreme Court of Arizona, 1938 Importance of an expert witness: Medical community is tight knit and it would be hard to find a doctor to testify against a colleague -dont want to raise the bar for the future (or distort the standard)

-dont want to open the flood gates by setting a new standard *these problems are so recognized that now, as a matter of pleading, in some medical malpractice suits you have to state who your expert is going to be (have to secure an expert before the case goes to trial) -in cases like this, the expert is dispositiveb/c the jury may not know a lot about the subject matter, they have a lot of influence -it is not enough for the expert witness to testify that he may have taken the x-ray, he must show that it is a VIOLATION of customary practice *Often the P will need to bring an expert witness in order to prove what the ordinary pilot would do b/c the jury might not have the knowledge base (NOT NECESSARILY requiredbut usually there would be one or 2 expert witnesses) Morrison v. MacNamara 1979 Historically: STRICT LOCALITY RULE: medical practitioners were held to a standard of care within their own locality what are the pros and cons to this strict locality rule? -Encourages sub-standard care -based on resources of the local area (equipment) -dont want to disincentives doctors from going to rural areas by holding them to the higher standard of care (b/c they will recognize they could never live up to the high level of care) Scott v. Bradford Supreme Court of Oklahoma, 1979 -availability of experts (less of them, and from a very tight knit communityeven more so if they are within the same strict localityvery small communitylots of conflicts of interests) -over time courts have largely abandoned this rule -most jurisdictions have moved to a standard of care of similar communities (somewhere between strict locality and national which are on opposite sides) -national standard is most commonly applied to a nationally certified specialist, lab, hospital -downside for the national standard: professional experts making their living by testifying against doctors across the country

Informed Consent-Negligence Framework: 3 Part Inquiry for failure to warn cases: 1.) D physician failed to inform P of material risk before securing Ps consent: -majority: risks a reasonable physician would disclose -minority: risks a reasonable P would want to know (this would be really hard to determine) 2.) If P had been informed of the risk, s/he would not have consented: -objective in some states; subjective in others (minority rule) 3.) Risk was realized, injuring P. Scott v. Bradford 1979 Failure to warn or give potential risks can be negligence if it meets the framework above

This used to be considered under intentional tort framework and has now moved largely to negligence *keep in mind punitive damages are rarely given out in negligence as they are in international torts (society views intent as more culpable) Moore v. The Regents of the University of California Supreme Court of California, 1990 Rule: the duty to disclose (material benefit) at the time they perform the treatment---no fiduciary duty later on if you still had access to those cells or something else -would this be viewed differently as a reasonable patient v. reasonable physician (arguments that a patient would want to know more than a reasonable physician) -doctor may be conscious or unconscious of his bias -there was potential conversion claim here as well that court rules against (important for medical community) Negligence Per Se: Violation of a Statue to prove Negligence: Shortcut to proving duty and breach; Judge determines whether statute applies; Case law determines effect of unexcused violation of statute (NPS; rebuttable presumption of negligence; evidence of negligence) Jury determines: whether statute was violated; whether there was excuse; whether violation caused injury; extent of damages If P fails to convince judge that statute applies, she can prove negligence through D/B/C/D To determine if the statute applies: 1. The party seeking to prove negligence must be a member of the class of people whom the legislature (or regulators) intended to protect with the statute (or regulation) RIGHT P 2. The injury or other harm that occurred must be one the legislature (or regulator) intended to prevent RIGHT HARM 3. The statute must be appropriate for use as a standard for negligence per se. **the legislative body has basically made a generalized standard from the experiences of the community about what is likely to cause harmjury doesnt really have to determine what a reasonable man would do-the legislature already decided

Osborne v. McMasters Supreme Court of Minnesota, 1889 Ds clerk sold poison to P who died Poison was not labeled There was a statute that requires it to be labeled in Minnesota -under statutes there is no way for an individual to recover, so we use negligence per se to bring it in as a showing of reasonable standard for duty and breach Stachniewicz v. Mar-Cam Corp. Supreme Court of Oregon, 1971 -the court struggles with the issue of causationis the drink the bartended served to the intoxicated patron was the one that CASUED the battery -allowing for violation of the statute to be negligence per se is more likely for the jury to find for P that if just under common law negligenceit is harder to prove that the bar isnt acting as reasonable bar owner would -however, court of appeals allows it to go to jury Ney v. Yellow Cab Co. Illinois Supreme Court, 1954 *This case shows how difficult it is to decide the legislatures INTENT behind the statute islots of debate between majorities and dissent in this case (because so much goes into the statute and the people voting for it---it is hard to determine exactly what their purpose is)the supposedly clear cut inquiry for determining the purpose of a statute -JUGE has to decide whether the statute applied and then if it does, the jury has to decide whether the statute was violated (thats it!)they dont have to decide anything else (reasonable man etc. would be a larger issue for the jury to decide) Perry v. S.N. And S.N. Texas Supreme Court, 1998 There is no duty, under the common law for them to come to the aid of someone else in dangerthis is WHY P is trying so hard to show violation of statute, b/c under common law there is no negligence -court is worried that the language of the statute it too vague and would require too many innocent people to be brought to suit in future -the statute must be appropriate for use as a standard for negligence per se (FAILS HERE and court wont use the statute as negligence per se) Martin v. Herzog Court of Appeals of New York, 1920 -in New York, if a statute can be imported then the violation of the statute provides a prima facie case for duty and breach. You still have to prove causation and damages -this is the MAJORITY approach Zeni v. Anderson Supreme Court of Michigan, 1976 From this case we get excused violation of a legislative enactment

(on exam look for right class, right statute, intent of statute then MOVE to excuses) Excuses: 1. An excused violation of a legislative enactment is not negligence. 2. [Violation is generally excused when: 1. Reasonable b/c of actors incapacity; (unable to walk on sidewalks due to snow) 2. Actor neither knows nor should know of the occasion for compliance; 3. After reasonable diligence, actor cant comply; 4. Actor faces an emergency he didnt cause; 5. Compliance would increase the risk. Notes: reasonable child standard TRUMPS negligence per say this doesnt mean that the child automatically winsjust means that they have to decide is the CHILD behaved reasonably reasonable child: like age, intelligence, experience and maturity Proof Of Negligence Circumstantial v. Direct Evidence: Direct Evidence: Think about the Declair case where the tires were worn, what would be the direct evidence: car serviced the day before and mechanic warned about the tires, noted appearance of the tires (inner threading)this the better, more compelling evidence Circumstantial Evidence: hasnt had a service in past 10 years, brand of tire, life span of the tire nothing wrong with this type of evidence, but you will need more of it! (You have to make a factual inference from circumstantial evidence, whereas from direct, you do not) Goddard v. Boston & Maine R.R. Co Supreme Court of MA, 1901 P slipped on banana peel at Ds station Peel may have just fallen a minute before-exception No direct evidencehowever the circumstantial evidence may be in favor of defendants: busy station, etc. Anjou v. Boston Elevated Railway Co. Supreme Court of MA, 1911 P slipped on a banana peel at Ds station Peel was black in color and had been trampled over a great dealclearly had not been dropped a

minute before (THIS IS CIRCUMSTANTIAL EVIDENCE because I have to make a factual inference from the appearance of the banana that it had been there a while) D had a duty of care to keep the platform cleanassert reasonable care It was ds obligation of care that was breached and verdict for P Joye v. Great Atlantic and Pacific Tea Co. United States Court of Appeals, 4th Circuit, 1968 P slipped and fell on banana peel in Ds grocery store Diversity suit so we are in federal court There was no notice that A&P had put the banana peel on the ground or that they had actual notice of its presence Ps case turns on the sufficiency of the evidence to establish constructive notice (p was unable to show that the banana had been on the floor for a long period of time-circumstantial evidence, even as most favorably taken to P shows that the floor had been swept 35 min. before (this is still circumstantial evidence b/c you have to make a factual inference from the evidence)---no one saw banana until after she fell on it---we cant tell how long it had been there -jury had no idea if it was there 30 seconds of 30 days reversed Ortega v. Kmart Corp Supreme Court of California, 2001 P was shopping at Ds store and slipped on a puddle of milk on the floor adjacent to the refrigerator section and suffered significant injury to his knee-including ligament tears Kmart argued that P failed to carry his burden of showing the milk puddle existed for a sufficient time to establish constructive notice to the store Jasko v. F.W. Woolworth Co. Supreme Court of Colorado, 1972 (again making a double inferencebasically allowing the jury to hear information about how they serve their pizza is dangerous is allowing for twice removed circumstantial evidence) -is the jury permitted to make an inference from the manner of serving pizza to the thing which actually caused her injury this is a question of causation and the court basically allows for the circumstantial evidence to link this(here the court says yes!) P sustained injuries when she slipped on a piece of pizza outside a pizza/sandwich counter in Ds store Trial court verdict for D, appeals court affirmed -court holds that this was a dangerous method of sale and points to the constant cleaning of the floor as recognition of this danger by the stores manager -b/c inherently dangerous, (waxed paper)no notice must be shown by plaintiff -generally notice is needed because it is an incident that is out of the ordinaryhere this is not the casewhen it is easily and commonly foreseeable the notice burden on the plaintiff is no necessary

-remanded H.E. Butt Groc. Co. v. Resendez Supreme Court of Texas, 1999 -Here again, like Jasko case she is trying to make a claim that the very act is negligence, that she shouldnt have to prove the causation -the fact that a store has a sampling display (here of grapes and reasonably set up-cones, mats etc.) cannot constitute negligence -supreme court is reversing the verdict of trial and appeals court -P gave no evidence that this was an unreasonable risk of harm -P takes nothing -court says basically they will permit the inference but there is a TON of evidence on the other side: cones, slip resistant map, lip on table etc.---we are basically defeating your inference

Res Ipsa Loquitur These are usually rate exceptions where the action would not have happened without negligence (train derailing, elevator falls, electricity escapes from item) (the thing speaks for itself) this is a TYPE OF CIRCUMSTANCIAL evidence, but this is way out on the fringe. As a lawyer trying to prove negligence, we want DIRECT evidence; if you cant then you want the BEST circumstantial evidence possible. Res Ipsa Loquitur is a LAST resort type of evidence. P can get past directed verdict w/o direct or circumstantial evidence of negligence Judge determines whether RIL applies Case-law determines effect of RIL (permissible inference of negligence; rebuttable presumption of negligence; shift burden of proof to D) Jury must still determine: whether there was duty/breach; causation; damages If P cant convince court that RIL applies directed verdict (usually)

Was the item in Ds exclusive control? This would not have normally occurred without negligence? (some jurisdictions require P to show she did not contribute) Different Jurisdictions have different ways of applying res ipsa Loquitur: Majority View: inference of negligence (jury can still find against this) A Few: rebuttable presumption of negligence (d needs to present evidence that he wasnt) Some others: Shifts the burden of proof to defendant (minority view) Byrne v. Boadle Court of Exchequer, 1863 -the mere action occurring is enough to establish negligence b/c the item was in the control of DP who is injured should not be bound to show that it could not fall w/o negligenceif there are facts inconsistent w/ the negligence, it would be for DEFENDANT to prove them -in a specialized area, you may need an expert to tell you that it wouldnt have happened w/o negligencethe thing is speaking for itself, but in another languagethe expert witness is translating it for us

McDouglad v. Perry Supreme Court of Florida, 1998 P suing D (individual and employer) for an accident that occurred in 1990 D was driving a truck and the spare tire underneath came loose, then he drove over it and it flew into the air and struck Ds car This should be fairly intuitive to know it is negligent (no expert witness needed) Larson v. St. Francis Hotel District Court of Appeal of California, 1948
-This is the majority view on multiple defendants -Here the furniture was not in complete control of the hotel, could be a guest in the hotel 1.) That there was an accident 2.) That the thing or instrumentality which caused the accident was at the time of and prior thereto under the exclusive control and management of d 3.) That the accident was such that in the ordinary course of events, the d using reasonable care, the accident would not have happened -applying the rule to the facts of this case, it is obvious that the doctrine does NOT apply Ybarra v. Spangard Supreme Court of California, 1944 Narrow exception, even in jurisdictions that do support this, you wouldnt have liability for turkey case in note 3 (there is no central figure for the action) -we merely hold (suggesting a limited holding) that a P who receives unusual injuries while unconscious and in the course of medical treatment, all those D who had any control over his body or the instrumentalities which might have cause the injuries may be PROPERLY called on to meet the inference of negligence by giving an explanation of their conduct -also idea that the hospital could have forced the surgeons etc. to say whos at faultthere is a parameter responsibility of the hospital(central figure responsible) incentivize hospital to supervise care (court kind of thinks they are all lying for each other) Sullivan v. Crabtree Court of Appeals of Tennessee, 1953 -majority approach that Res Ipsa Loquitur be applied here as a brand of circumstantial evidence that the jury can weight to decide if the inference of negligence convinces them or not -driving off a steep embankment can speak for itself as negligence CAUSATION Causation in Fact: But, for analysis Judge makes determination of causation in fact (sufficiency of evidence for causation)

______________________________________________________________________ 0% 51% 100% Perkins gentry/ Reynolds D crosses the yellow line Think about the 51% as a line for the standard of proof that P must produce (holding P to convince the jury that the ds conduct caused your injury)

Perkins v. Texas and New Orleans R. Co. Supreme Court of Louisiana, 1962 -there are other causes for the accident besides the train speeding, even without the train speeding the accident would probably still have happened (this is not concurrent causation) Reynolds v. Texas & Pac. Ry. Co. Court of Appeals of Louisiana, 1885 -Court agrees in party but says that where the negligence of the defendant greatly multiplies the chance of accident of P and is of a character naturally leading to its occurrencethe mere possibility that it could have happened w/o it is not enough to remove negligence by breaking the chain of cause and effect Gentry v. Douglas Hereford Ranch Inc. Supreme Court of Montana, 1998 P is unable to say why he fell, if he fell etc. this fails but, for the stairs having been more properly maintained We would need another piece of evidence that shows he fell on the actual stairs? -if you invite people in, you have a duty Kramer Service, Inc. v. Wilkins Supreme Court of Mississippi, 1939 -court says no reasonable jury could find for P (on appeal) ---they need to focus on what his witness saidjust because there is a possibility, doesnt mean its probable (basically if it had been 51/100 might have been able to recover) -coexisting is not enough, for negligence we need to prove causation (essentially boils this down to probability) -cause of cancer is unknown, in general, so we cannot know that it was its cause here -when the injury lies beyond what a layman would know the expert testimony may be the substantial foundation of the verdict/conclusion Herskovitz v. Group Health Cooperative of Puget Sound Supreme Court of Washington, 1938 -51% rule: the malpractice has to be the cause (more likely than not) -if the patient had less than a 50% chance to live anyway, we cant say that negligence caused his death -the concurring opinion here says that the injury should be for the reduced percentage of survival rather than the actual DEATH (Leiter says this is better logic than the majority which basically gives no reason for letting this go to the jury)still this is a little bit of a stretch b/c if he was in the 25% that did survive, he wouldnt have been able to recover Concurrent Causation: A and B cause the harm together and BOTH are necessary for the harm. Both are additive for the harm to occur. -when there are separate acts of negligence combined to produce a single injury, each tortfeasor is responsible for the entire result, even though his act alone might not have cause it. Hill v. Edmonds Supreme Court of New York, Appellate Division 1966 -truck abandoned on highway w/ no lights and also negligent driver of the car who should have seen it, this is an example of concurrent causation, both are necessary for the injury Anderson v. Minneapolis, St. P & S. St. M. Ry. Co. Supreme Court of Minnesota, 1920

-two independent sources we dont know which one cause the harm (A or B could have been 100% liable) -A or B, this is NOT like Perkins as defendant tries to argue (b/c the harm would have happened anyway), b/c in Perkins there is another way to recover TEST: you ask (not whether D caused it specifically, BUT if the other cause hadnt been there, would this Defendant have still caused the harm? -in Perkins the court holds that the train speeding had nothing to do with it, it, on its own would NOT Have been sufficient to cause the harm (fails the 51% rule) Who did it?Different than concurrent causation: An indivisible harm, but we have no way of knowing who did it) Summers v. Tice Supreme Court of CA, 1948 How to prove causation: This is a proof issue (think had there been a narrator he would be able to tell us exactly who SHOT him, we just know there is a 50% chance of each of themthis wouldnt be enough in a traditional negligence case to prove causation) -both shot in the same direction, no way of knowing who caused the harm Burden of proof shifts to the defendants (once proved negligent) to absolve himself if he canthe defendant has to try to prove that they didnt shoot him This is different than concurrent causation: In concurrent they are both additive for the injury, here only 1 is technically negligent, but we dont know which one it is (CRITICAL for both to be deemed negligent BEFORE SHIFT OF BURDEN) Sindell v. Abbott Laboratories Supreme Court of CA, 1980 DES CASE Each manufactures liability for injury will be approximately equivalent to the damages caused by the DES it manufactured -pros: make plaintiff whole (maybe not 100%, but at least the amount of those that we can figure produced the DESnot completely parallel Somers b/c we dont have all possible defendants) -there is already admittance that the drug companies are culpable (generally) -probability that she took their drug (specific culpability) -if we assume that all the Ps who got injured from taking the judge file suit, we will eventually get to the correct % of injuries caused by them Against: -if we stick with our 51% rule: for several of them, it is more likely than not that they didnt make the pill -this is the judge that decides this, not a legislaturea little concerning -disincentives taking new risks with new drugs -this is in state courtthis is not inclusive of all drugs nationwide, just those produced in California -undermining the legal rule to find for this particular plaintiff (going against the 51% rule) -this should be the role of the legislature *many states dont follow this, but several of them, if they do just follow it in DES cases PROXIMATE OR LEGAL CAUSE: Only move to this once you have determined cause in fact, test is: FAIRNESS and FORESEEABILITY

-Determination of whether legal liability should be imposed where cause in fact has been established (a policy decision made by the courts or legislature to deny liability for otherwise actionable conduct based on considerations of logic, common sense, policy, precedent and justice) -these are a wide range, from RAT CASE (where mode of occurrence doesnt matter as long as injury is foreseeable) STEP 1: DRAWING THE LINE Ryan v. New York Central R.R. Co. Court of Appeals of New York, 1866 -importance of drawing the line at foreseeable consequences -BPL calculation and least cost avoider would lead to same conclusion Bartolone v. Jeckovich Supreme Court of New York, 1984 -eggshell plaintiff rule is exception to proximate cause determinations -take the plaintiff as she is -important that it is a foreseeable plaintiff not a foreseeable injury -all courts, universally, agree on the eggshell rule on PHYSICAL damages -a minority would not apply this rule if its mental damages -also generally applied if the extent of physical damages to property are worse than could have been foreseen (polemisheavy plank falls into ship of oil, ship is completely destroyed) you can foresee that your negligence might cause physical damages to the ship, the fact that the damages are much worse b/c you didnt know it was filled with oil, doesnt get you off the hook Overseas Tankship (UK) Ltd. V. Morts Dock & Engineering Co, Ltd. -two different holdings about what is reasonably foreseeable -foreseeability is an objective standard, but it can be tweaked by profession -what a chief should have known about oil spilling on water may be different than ordinary shipman Palsgraf v. Long Island Rail Road Co. Court of Appeals of New York, 1928 -direct causation with an unforeseeable plaintiff -injury was too remote, even if you have but for, we are drawing the line -also points at the shingles maybe being intervening cause of injury -court also talks about duty here, if there is no reasonably perceived duty to protect from these consequences, they cant be negligent for breaching the nonexistent duty STEP 2: EVALUATING INTERVENING CAUSES

Was the injury/harm a natural consequence of the particular kind of negligence IF NO, Was the intervening event extraordinary, unforeseeable and independent? If YES, Was the intervening act criminal? IF YES,

Intervening act is a superseding cause; severs chain of causation

Test is: was the act extraordinary, unforeseeable and independent? Can the intervention be foreseeable, is the injury the same which the original did not protect against, would also be held negligent for? Yun v. Ford Motor Co. Superior Court of NJ, 1994 -causation fails under foreseeability test and Yuns running across dark highway is intervening and superseding cause -Yuns act severs the chain of causation Derdiarian v. Felix Contracting Corp. New York Court of Appeals, 1980 -if an act is extraordinary it breaks sequence of causation -if it is a natural or normal result of Ds negligence we still hold D liable -here the defendants injury is foreseeable, and was the exact injury Ds negligence failed to protect against -the precise manner of the event need not be anticipated An intervening act may not serve as a superseding cause, and relieve an actor of responsibility, where the risk of the intervening act occurring is the very same risk which renders the actor negligent ****Tricky point: maybe its foreseeable that someone may be killed or injured (we dont care what the agent isin the RAT case)this is subtly different b/c its foreseeable that someone could be injured in the plane crash, butthe injury still needs to be a NATURAL consequence of the negligence Superseding Causes: Cut off proximate cause from original actor when the intervening cause is EXTRAORDINARY, UNFORSEEABLE and INDEPENDENT Acts of God: Volcano and plane crash example: No proximate cause. The volcano is not a natural consequence that they should have protected for. Volcano is superseding, not a natural consequence of the negligence. (different from rat case where the fire is a natural consequence of oil and fire) Criminal Acts: Will act as a superseding cause UNLESS IT IS ONE OF 3 exceptions where causation is

not broke: (generally if the criminal act is foreseeable, and is the very risk you are attempting to prevent, the act will not cut off causation) 1.) If there is a hotel guard whose job is to keep the hotels guest safe, falls asleep and then the robber comes in, even though the robber is criminal act, not an exception. (Premises liability) 2.) Tenant in your house that leaves a door open, even if you have good locks on it, the tenant can still be liable even if the robbery is an intervening criminal act. (Destroy protection P had taken) 3.) Defendant takes custody of a criminal and then fails to adequately restrain him or her when the criminal escapes and commits a crime, its intervening, but city will still be held liable. (Taken custody of criminal in question)

Watson v. Kentucky & Indiana Bridge & R.R. Co. Court of Appeals of Kentucky, 1910 -negligent rr with oil leak -fire ensues and cause will be evaluated on whether Watson negligently lit the match or intentionally, criminally lit it -a criminal intervening cause will sever causation -Guidance: usually when the intervening criminal act is unforeseeable, unusual or highly culpable it may be outside Ds original scope of risk -typically when an intervening act is criminal or tort it is more likely to be considered independent (not extending proximate cause) -the intervening act doesnt necessarily have to be criminal it can also just be intentional misconduct Fuller v. Preis New York Court of Appeals, 1974 -really hard to separate suicide from its intentional connotation, P really needs to show that there was NO awareness, even slight of P to what he was doing or could not resist an impulse -there would need to be an irresistible impulse to commit suicide as a direct effect of ds negligence -basically becomes an superseding cause when the wrongdoer is liable for his own death and knows what hes doing -some courts require a frenzy or circumstances to prove that it was an uncontrollable impulse (detailed note, planning will counterweigh this)) -more likely to support a claim where it was intentional tort by original actor McCoy v. American Suzuki Motor Corp. Supreme Court of Washington, 1998 -Rescue Doctrine allows someone who stops to rescue someone to sue the person who created the dangerous situation (danger invites rescues). The rescuer is a foreseeable injury of the peril created by negligence. 1.) Defendant was negligent 2.) Negligence cause peril or appearance of peril 3.) Plaintiff perceived perilestablish that you actually were a rescuer(accident down the road) 4.) Reasonably prudent person would recognize peril or appearance of peril 5.) Rescuer actually acted reasonably -even if the rescue doctrine applies you still have to prove proximate cause of your injuries -counter example where there is no proximate cause might be if lightening struck a tree while they were rescuing someone -you still need but, for causation and proximate causation analysis

LIMITING PROXIMATE CAUSE: Public Policy: Court limiting proximate cause in support of public policy considerations (this is similar to a defense) Kelly v. Gwinnell Supreme Court of New Jersey, 1984 Can a social host be held liable for the negligence of the injuries of P (an adult)? -NJ says yes and then later passes a statue which limits this slightly (D can only be liable to third party not the actual drunk driver) -this hinges on DUTY (nj gives social hosts a new duty)for public policy reasons the court thinks this is a good duty to enforce Enright v. Eli Lilly & Co. Court of Appeals of New York, 1991 -next generation of DES victim: Ps grandmother took DES which gave Ps mother defects of reproductive system which left P with premature birth defects -this is too far removed, and as a matter of public policy they are cutting of the chain of causation to just Ps mother DEFENSES TO NEGLIGENCE: (Do NOT apply to intentional torts) Plaintiffs Conduct Defense #1: 1.) Contributory Negligence: Only in DC, MD, VA, NC, AL Butterfield v. Forrester Kings Bench, 1809 -contributory negligence is a complete defense of ps negligence Davis v. Mann Exchequer, 1842 -Last clear chance doctrine: -if D had last clear chance to avoid the injury, he is back on the hook for the FULL consequences of the tort (still an all or nothing doctrine) -This is a still ALL or nothing doctrine, negligence will not be split Note: Some jurisdictions still have gross negligencemore severe negligence (not yet at an intentional tortmaybe not substantially certain, but MORE like reckless behavior) -if ds negligence was not ordinary negligence BUT extraordinarily negligentthey may waive the contributory negligence doctrine 2.) Comparative Negligence: Two Types: This is important for 50/50 cases, which are likely percentages the jury chooses A: Pure Comparative Negligence: 13 states Damage - % of Ps fault = recovery (doesnt matter how comparatively negligent P is) B: Modified Comparative Negligence: If P is more at fault than D, we go back to contributory negligence and find for D automatically

I: 49% rule: Ps blame must be less than (12 States) II: 50% rule: if 50/50 P can recover (21 states) (After this, the percentage of damages awarded will be reduced by ps percentage faultlike standard comparative negligence) ____________________________________________________________________________________ McIntyre v. Balentine Supreme Court of Tennessee, 1992 -TN adopts the comparative negligence rule at 49% level - Ps negligence must be less than D in order to recover and then the damages are reduced proportionally to how liable P was (this is the modified type of comparative negligence) Notes on Comparative/Contributory Negligence: --some states will instruct the jury about liability percentage, some states do not--there are public policy reasons for not giving the juries instructions for and against (make jury take calculation of fault seriously, make them possibly give more fault to a not really damaged party) --states dealing with specific situations where it doesnt feel fair not wearing seatbeltlegislatures have made a 5% peg in reduction for this type of liabilitywont let this go to the jury -When multiple defendants, almost all jurisdictions say Ps negligence should be compared to the total of Ds negligence rather than against each D independently

Assumption of Risk: Plaintiffs Action Defense #2 this can be difficult to distinguish from comparative/contributory negligencejust remember that we are evaluating Ps conductit CAN BE BOTH Remember this is about CONSENT, not FAULT.

EXPRESS: SIGNING LIABILITY AWAY -courts are reluctant to enforce them and usually require that the person is made aware of them, has read then, understood them and agreed to them (on back of a ticket may not be enforced), whereas in a highlighted portion of an agreement is would be more likely-VA does not recognize there -a release that actually states the risk (broken bone) is more likely to be upheld 1.) CLEAR, unambiguous contractsome jurisdictions require you to have the word negligence in it, some do not 2.) Must be Freely given. The parties must have equal bargaining power. If there is only 1 provider of something (electricity, water) or P is forced into signing it, not enforced. ( cant be a lack of choice) 3.) Remember to the actual risknot stretched to collateral risks beyond Ps contemplation. (Sign waiver to play baseball, this would stretch over being hit with the ball or by a player, not for a sink hole on the field) ---some courts are more likely to say he has assumed the risks he actually knows of (others are less subjective)

IMPLIED: INTENTIONALLY and KNOWINGLY PUTTING YOURSELF IN HARMS WAY 1.) Plaintiff has to be aware of the risk (this must be the EXACT risk that happenedif you are playing baseball, falling in a hole under 1st plate is not aor) 2.) Aware of the scale of the risk 3.) Encounter it voluntarily (this is qualified, you must have options and you CHOSE the risky one the risky option must not be one that was necessary for you to take) A: The defendant is NOT negligent. This is typical of sports, other risky activities where the risk is known to both parties, but the defendant is not acting unreasonable just by providing the opportunity (rock climbing, skiing etc.) B: The defendant is negligent. A: P encounters the risk reasonably. Usually when P is reasonable, the court will not evaluate this as comparative negligence and will not bar recovery under AOR. A few jurisdictions will still apply AOR as a complete defense b/c she has given her consent, regardless if reasonable or not. (Storage of furniture in only facility close to her house that she KNOWS doesnt have fire alarm or sprinklersdrivers ed. hypo) B: P encounters the risk unreasonably. Usually here, they treat this as comparative negligence b/c P is negligent in her choice. The jury will be instructed to attribute percentages of fault. (If they were acting reasonably cant be co-negligent. Driver Ed hypo---driver may have known the scope of the risk and volunteered, but if his behavior was reasonable he wasnt contributory negligent)

Seigneur v. National Fitness Institute, Inc. Court of Special Appeals of Maryland, 2000 -example of Express Assumption of Risk where P has signed away her right to sue for negligence by signing a waiver when joining a gym -Maryland and several other jurisdictions will typically uphold these types of waivers when they are unambiguous, must be a CLEAR contract and you do not need to use the word negligence 3 exceptions in MD: (VA doesnt recognize these clauses AT ALLstrange b/c usually pro-d) 1.) intentional/reckless/gross negligence (employee does and intentional tort) 2.) Bargaining power (think about powerPepco, you have to have electricity so you are kind of completely at their control) -ER in a hospital, housing -Schools (public school in your district) -situations where you need something and you have no choice about who you are buying it from 3.) Transactions with the public interest in mind Rush v. Commercial Realty Co. Supreme Court of New Jersey, 1929 Ps landlord negligently maintains floor in bathroombut she really has NO CHOICE, its her only bathroom, so while she may have voluntarily assumed a known risk and fell through-----we are learning what is meant by voluntary and a meaningful choice

*P must know that the risk exists, must know something about the scale of the risks, and here the BIGGEST THING WE LEARN is about what is meant by voluntary Blackburn v. Dorta Supreme Court of Florida, 1977 (this is a consolidated opinion on several cases wrapped up into one) -assumption of risk was not a favored defense because it was a complete bar to recovery and because it is already covered in the concept of contributory/comparative negligence and the element of duty within the actual negligence tort -this is a merger of applied assumption of risk into comparative negligence affirmative defense-jury does same calculation of Ps negligence and then reduces recovery Defenses Continued (no longer Ps actions): Statutes of Limitation and ResponseThe date by which the case must be filed (NOT resolved) Teeters v. Currey Supreme Court of TN, 1974 When does the statute of limitations begin to run? When the injury occurs of at the date of discovery of the injury? 1 year from injury -traditional approach was 1 year from when the injury actually occurred, but here she wouldnt have even known of negligence in the operation then -Tennessee adopts the discovery doctrine: The SOL runs once P knew or SHOULD have known about the cause of action -the Discovery Rule is not the MAJORITY (not recognized in Virginia) Important Notes: -in most jurisdictions the SOL will be extended for minors so they can reach maturity before filing suit -Statute of Repose: (page 646, not 15): limits potential liability by limiting the time during which a cause of action can arise (these happen within particular industries that the legislature wants to either incentivize them to keep going: ex: Toyota can only be liable for a defect for 10 years from the date of sale) even if the injury happens after this, they still cant recover -way to sweep the slate clean for a particular defendant Immunities: Defense to Negligence: Spousal Immunity, Parent-Child Immunity, Employer, Government THIS IS AN ANALYSIS OF DUTY Freehe v. Freehe Supreme Court of Washington, 1972 -courts are hesitant about over extending into the family dynamic -P and D are married and P wants to sue his wife for negligence in maintaining a tractorthe tractor, farm and property are all separately owned by D -gets rid of spousal immunity in Washington -majority rule is now no immunity but have to show that it is a excessive or gross abuse of what would normally be a privilege *as of 1993: 32 states had done away with interspousal immunitysome say that if youve already had divorce proceedings then you can bring the tort suit---or if it were an intentional tort you could bring the suit -think of public policy reasons herewant families to solve disputes on their own, at home

Zellmer v. Zellmer Supreme Court of Washington, 2008 P is the wife of D, Ps child is Ds stepchild---they were all living together and the child was under the control of D D says he put on a video and then went downstairs, found her an hour later drowned in pool and died Lower and appeals court used parental immunity defense However, there is some discrepancy here about whether he was acting in loco parentis (like a parent) to Ashley b/c mother says no financial support/didnt know her well/short relationship - Uphold parental immunity on family autonomy, however, they hold that it can only extend to stepparents when the parent is truly acting in loco parentis Here there is a question of fact whether he was actually acting that way, so we will remand for that finding Notes: -Parent Child immunity is still majority rule but exceptions for gross negligence, willful or wonton behavior -19 states dont apply this at all -Some have exception for when child dies -And some for legally emancipated children -Stepparents who have not adopted child are often exceptions -Automobile accidents are removed b/c not a role of parental authority/care etc. (insrance is the correct remedy not suing a parent) -Some courts have adopted a reasonable parent standard Public Policy Reasons: Negligent supervision is a slippery slope b/c parent is expected to know the nature of their particular child and there are no firm rules about how much supervision a child should have at any particular age People would be able to second guess parents all the time (third parties suing) Parents, although much more rare, are also immune from suing their children In Loco Parentis can be used to extend the immunity to step parents who are truly acting in place of a parent, consider: 1.) Financial Support 2.) Have they adopted the child? 3.) Was he/she entrusted with enough responsibility that he should benefit from the immunity (balancing)? 4.) Was he/she acting more like a parent or more like a babysitter? Charities: Abernathy v. Sisters of St. Marys Supreme Court of Missouri, 1969 (Removes Charity negligence immunity) P was injured by negligence of an employee of Ds hospital The hospital is a charitable organization and believes it is immune to negligence suits Lower court holds this and issues summary judgment for defendant Holding: Yesnongovernmental charitable organization are not liable for negligence or the negligence of its agents and employees acting within the SCOPE of their employment - trust fund and implied waiver doctrines that used to support this immunity but basically said they are fictions and found on weak grounds (encourages their existence and their donors to donate to them

(their donation wont go to tort suits)creates a protective status to encourage them to create these charities) -also held that notion of charity has changed and now charities are large organizations that can purchase insurance etc. (Charities are now big business) Notes: -VA still has charity immunity but has removed it for gross or willful conduct -some have limited it just to hospitals not having immunity -some have made it just to beneficiaries (patient, church member etc.) -some will limit it past liability insurance -some still hold b/c they think public policy reasons support the immunity -charity purchasing insurance can be viewed as a waiver or immunity Employer Immunity: Duty Analysis -worker compensation statutes in all jurisdictions provide that employees can recover from their employers for work related injuries w/o having to show fault of the employer -This is an alternative from the tort system so it confers immunity from tort liability on the employer and co-employees---therefore the injured employee cant file a tort action against employer or other negligent employees State and Local Government Immunity: Duty Analysis (always address whether D was acting within the scope of his employment FIRST) -Historically you could not sue your government b/c your suit remedy CAME from them, it was a conflict of interest -Every state has waived their immunity to suit, but it is completely legal for them to limit this, create caps or make it exclusive remedy (cant sue their employees, just the STATE government) *Again, remember the actor must be within the SCOPE of their employment Clarke v. Oregon Health Sciences University Supreme Court of Oregon, 2007 Ps child was a victim of negligence of employees at OHSU hospitalbaby was deprived of oxygen leaving him completely disabled They are suing for 2 million against hospital However Oregon has a statute that makes the hospital liable only up to a 150k damage cap and employees cannot be sued (they are essential state actors)P says its unconstitutional -essentially the state has a right to amend or limit the remedy but this is not a completely unlimited abilitythis would essential deprive them of any remedy at all -even though hospital would have been given sovereign immunity in 1857 they still would have been entitled to a common law decision and common law remedies that preexisted the constitution can NOT constitutionally be abolished (here they remanded and legislature made a new cap) -This is a state entity: functioning/doing something that is RELATED to the states functioneducational and health care benefits Notes: -every state have a torts claim act that consents to suit or limits w/ damage caps and exceptions - the US did in 1946 (FTCA) -state statues for immunity extend to state agencies and instrumentalities prisons, hospitals, educational institutions, state fairs, conservations districts, commissions for public works -most states drew a distinction between private functions and government functions for municipal corporationssaying that when a municipality was acting in a private waya function normally engaged in the private sector there was no immunity

-in addition some states hold parallel with charitable immunity, that when a municipal corporation purchases liability insurance it is an implied waiver of the immunity to the extent of the insurance Riss v. New York New York Court of Appeals, 1968 P had a stalker who made numerous threats that if she engaged/married another man he would hurt her or kill her, she reported it to the police over and over, but nothing was done She was engaged and received a final threat which she again reported and pleaded for help Later a thug hired by the man threw lye in her eye she was blinded and her face permanently scared SHE IS SUING saying there is a duty owed to her by the police that has been breached. We need to show that it is more likely than not that if they had not breached their duty she would not have been injuredeven thought the manner of injury may not be foreseeable, the injury itself seems to be -no this would be a role for legislature and would overwhelm the court system with suit and financial ruin Dissent: Because we owe a duty to everybody, we owe it to no one Public Policy Reasons Behind upholding the Immunity: How do you take the general duty and narrow it to the specific case: -there is not a duty in general for failure to act! -of course the police dept. has a general duty, but we cant get down to an individual personal duty b/c they have to defer to the citys responsibility to run the police station -the city should be able to make their own decisions about how to run the police department DeLong v. Erie County New York Supreme Court, Appellate Division, 1982 P was a resident of Erie County and called 911 in the morning when she saw a robber outside 911 call was only 14 seconds and made 5 critical mistakes: gave the respondent wrong address, didnt repeat the address, didnt use her name, didnt issue a follow up call when couldnt find that address and just declared it a fake call P was killed and estate is now suing for negligence This is DIFFERENT from Riss case b/c the 911 number was a voluntary duty enacted by the state to assist its residents -when a relationship is created between the police and an individual that gives rise to a special duty the municipality LOSES its governmental immunity -it is assumed they will act with REASONABLE care, and the P needs to show actual damages -here the court believes real damages, she may have survived and she seemed to rely on the 911 call rather than escaping or calling a neighbor Proximate Cause: as a result of the police not responding within a reasonable amount of time, it is foreseeable that whatever you were calling about might happen Duty: process in place for responding to emergencies (kind of parallels that a situation where someone is coming to their aidand then you negligently makes it worse) Breach: failed to carry out the duty of the 911 call line Notes: -Where is the line between special duty (DeLong) and general citizen (Riss)? -cities/states are more often given immunity for discretionary decisions than for ministerial acts (how many snow plows to buy, how much money to spend on police etc.) -Ministerial acts are mandatory manifestations of public policy decisions and the government can be subject to liability for negligence

The United States: FEDERAL TORTS CLAIM ACT Deuser v. Vecera United States Court of Appeals, Eighth Circuit, 1998 Over July 3-6th in St. Louis was a fair to celebrate the VP on the grounds of the Jefferson National Expansion memorial (this is a case about FTCA b/c the police were national park rangers) B/c of the large number of visitors and people in St. Louis there was a new SOP (standard operating procedure) in place for the park rangers The law enforcement was stretched so thin he basically removed the drunken man to a parking lot rather than arrest him The man strayed into traffic and was killed By enacting the FTCA Congress opted to waive sovereign immunity Holding: 1.) Were the actions discretionary? -yes 2.) Of the kind the DFE was designed to shield? (if an agency creates a policy that is so far outside the scope of their job, the court is able to review the policy and say that it is not the type of policy they were intended to create) -court looks at the handbook for this event: if there had been an EXACT policy in place, this would not have been a discretionary function and the US may have been liable (think about there being a drunk, holding tank) if the policy had been in place and they violated it, there is liability **even though its clear that the choice that they made is unreasonable, b/c the operating procedure was so lax, they cant be sued for violating procedure Federal Claims Torts Act: FTCA Liability Provision, 28 U.S.C. 1346(b) With exceptions, it makes the United States liable for injuries caused by the negligent or wrongful act or omission of any federal employee acting within the scope of his employment, in accordance with the law of the state where the act or omission occurred. Three major exceptions, under which the United States may not be held liable, even in circumstances where a private person could be held liable: -exclusive remedy (only against the US not against the individual)Since there are several exceptions and its exclusive, if it falls within an exception you are COMPLETELY bared from recovery and have no alternative remedy -you never are suing the individual, the government is taking their place Three Major Exceptions: 1.) Military Service (1950s): Feres doctrine he was an active army officer who was killed when his barracks burned down and sued US government for negligence---Supreme Court said there is no comparable private person analog for the military and there would also be way too much litigation. Precludes suits by military personnel for injuries sustained incident to service 2.) Intentional Torts are precluded: exception to the exception is if the employee is a police or law enforcement dont want to promote someone who is privileged to used physical conduct to abuse that power (police/law enforcement) -also here, the exempted intentional torts, the individual is usually not acting within the scope of his employment, so you can maintain a standard tort suit against that person 3.) Discretionary Function Exceptionmost litigated and most criticized ---excuses discretionary functions of an employee (completely removes their duty even if the public policy choice is completely unreasonable) as soon as you say they are making policy choices there is no suit

**When there is a protocol in place and the actor fails to comply with the policy, then you have an ordinary negligence suit --United States v. Verig Airlines: there was a policy for random spot checking of planes (protocol), no violation of protocol, no suit-we wont review the procedure (to allow their own decisions), but we will review negligence of it --NIH case: here the NIH had a policy of checking every batch and the employee was negligent in complying WITH that policy, if not checked, US can be suedif this had been a policy of spot checking there would be no suit)

DAMAGES:
Themes: TO MAKE THE PLAINTIFF WHOLE (ONE TIME)
-proof of damages is an essential part of the plaintiffs cause of action -All losses, even noneconomic ones must be translated into money -all damages: past, futures, present are awarded in 1 lump sum -judicial review of jury verdict is limited, most jurisdictions allow a new trial if the award is so high or so low it shocks the conscience -punitive damages focus on behavior of defendant rather than plaintiff **Property: If the property is destroyed you will recover the market value pre-loss. If the property is just damagedyou get loss in value. (repair cost can be submitted as damages, but is NOT dispositive) 1.) Nominal Damages: small sum of money awarded to P in order to vindicate their rights, amount is trivial and unimportant (usually $1) 2.) Compensatory Damages: closest possible financial equivalent of the loss or harm suffered by P, to make P whole again or restore P to the position he/she was in before the tort occurred (Try to be as exact as possible but is usually speculative at some level) Special/Economic Damages: Can be measured in an accurate dollar amount (as accurate as possible). General/Non-economic Damages: Cannot be easily measured in dollars but would be inferred from special damages and facts of the case (pain and suffering, loss of enjoyment in life) 3.) Punitive Damages: an additional sum, over and above compensatory that are awarded to punish the defendant, to make an example of defendant and to deter others from engaging in similar tortuous conduct (judicial review of punitive damages is more common that w/ compensatory). They are almost always available for willful or reckless behavior, but Supreme Court says there does need to be some sort of cap on these. Categories of Compensatory (economic /special damages): Economic can actually be calculated with math. 1.) Medical Expenses (past, present and future) : must be BOTH reasonable(up to the jury to decide) and necessary (as a result of this injury) (would need a physician to testify to this) Examples: surgery, any doctors visits (diagnosis), psychiatric care, medication, in home care (recovering), physical therapy and rehab, equipment, medical monitoring, travel expense for treatment (special condition), relocation expenses (need to move to a warm climate)

-you would want doctors statistics about how successful a surgery typically isprognosis and likelihood you can recover in full for what you have now, but only by % for what the chance of getting something else is 2.) Fear of future Injury and Medical Monitoring costs: some states dont allow for these, some insist that they go into a fund so that you only use them for this), both relatively new additions in the tort law as medical technology has developed over time -Fear of Future Injury (dumping chemicals into a streamconcern that you may develop cancer in the future)very few allow for this type of recovery unless you show this was a REAL exposure, and to convince a jury that your level of fear is reasonable (given the actual likelihood of the injury) this is not treated like a psychiatric injury, treat this as a real injury -Insurance: you will get damages for the full amount, but usually there is a clause in your insurance that you have to indemnify the insurance company -Collateral Source Rule: if the insurance company negotiated w/a doctor to get you a reduced rate, you do not need to put on evidence of those differences (windfall to the plaintiffyou would still only have to pay the insurance company how much they actually paid, even if negotiated) . You recover in FULL, and you only have to pay the insurance provider what they actually paid 3.) Lost Wagesthis particular plaintiffs lost wages -time spent away from work - if youre a stay at home caregiver (for children or for grandchildren)you get cost of replacement (you can do this even if this costs you nothing, you got a family member to do it for free) -Student: delay in income, tuition if appropriate -Child: recover for the cost of caring for the child who has to be at home rather than at school (nanny, nurse etc.remember reasonable and necessary), during summer you now have to go to summer school when he would have normally worked Past/Present/Future: What happens when someone is killed? -very speculative and at the same time concretelook at their job, you would need testimony about how they were doing (about to be fired?) -1L killed in accident: maybe state at average Catholic starting salary: but also want to think about grades, type of practice, internships etc. -will be even more difficult for an infant (very speculative), usually settle very quickly.type of family, location, 4.) Lost Earning Capacity: (future earnings) Men v. Womenlower salary, stop working due to kids, Race Consideration: probably not something you would bring to the jury Cant recover for your reduced life expectancy as distinct from your reduced earning (cant recover for the mere fact that you lost time off your life) Compensatory (noneconomic, general damages): These cannot be calculated with math and accounting tactics by the jury. 1.) Pain and Suffering: (noneconomic, general damages): -physical pain (p must actually suffer itin some jurisdictions: if you only live for 10 seconds after the pain as opposed to 1 hour of physical pain) -Disfigurement, Change of Personality, Emotional Distress: Usually only if consequent from a physical injury or direct invasion of rights (slander, malicious etc.) 2.) Loss of enjoyment of life: some treat this as a subsidiary of pain and suffering, some a separate category (as a plaintiffs lawyer you would want it separate)

3.) Loss of consortium generally recognized for married couples for permanent loss or loss of some time NOTE: Attorney fees: NOT SEPARATELY calculated (This is traditional of the American legal system)

Personal Injuries:
Anderson v. Sears, Roebuck & Co. United States District Court, Eastern District of Louisiana, 1974 -Home was destroyed by a fire ignited by a defective Sears heater -mother and infant daughter were severely burned and mother suffered multiple permanent injuries -jury awarded them 2 million in compensatory damages and defendants moved for a new trial or remitter -this would invoke the maximum recovery rule: the judge must determine whether the verdict of the jury exceeds the maximum amount which the jury could reasonably find, and if it does, the trial judge can reduce the verdict to the highest amount that the jury could properly have awarded: considering 5 factors: past physical and mental pain, future physical and mental pain, future medical expenses, loss of earning capacity and permanent disability and disfigurement Did the jury award an amount within the range a reasonably jury could have--yes Richardson v. Chapman Supreme Court of Illinois, 1997 Facts: Plaintiff, Keva Richardson was the driver of a car w/ plaintiff Ann McGregor as a passenger, when they were stopped at a traffic light their car was struck by a semi-trailer driven by defendant Chapmen who was employed by Tandem/Carrier -At trial judge direct verdict in Ps favor and in damages it was 22,358,814 and $102,215 for each -intermediate court rejected the defendants challenged to the amounts of damages awarded by the jury and defendants appealed Were the plaintiffs expert witness calculations about costs/life expectancy and potential earnings correctly calculated? Were the damages excessive? -he used lower and upper bound figures rather than having to predict the exact rates that would prevail b/c there is no absolute about the levels of the interest and growth rate -The rest they say is reasonable and falls within the range of reasonable compensation it is not shocking and it does not lack evidentiary support -say that the 100K award for pain and suffering for McGregor is excessive (only a small scar, off work 2 weeks and in and out of hospital same day) reduce these by half to 50K Taxes: -compensatory damages are not subject to federal income taxes, but punitive usually are -some courts hold that this tax free nature must be taken into account when calculating it -however, several jurisdictions do not b/c there is no way to tell what future tax rates will be, what deductions P will have, most jurisdictions dont tell the jury that the award is tax free -tort damages are generally unliquidated and p is not allowed to collect interest on the award until judgment is entered or until a verdict is reducedthis rule is criticized as discouraging settlements b/c it is to Ds advantage to keep the money as long as possible Judicial Control of Amounts Recovered: -only when contrary to the law, outside maximum amount, shocking the conscience -grossly excessive or inadequatecan grant new trial or vacate the verdict or partial trial on liability or damages etc.

-conditional granting of trial on Ps refusal to accept a lesser amount (remittitur) or defendants refusal to pay a larger sum set by court (additur or increscitur) remittitur does not deny jury trial, additur was denied by supreme court Legislative Response: -about half the states have statutes that apply to particular damage claims: medical malpractice is a good example -some have been declared unconstitutional Collateral Source Rule: Montgomery Ward & Co. Inc v. Anderson Supreme Court of Arkansas, 1998 -collateral source rule case Her attorney negotiated with UAMS and had the bill reduced by P wanted to have the amount she actually had to pay presented not the TOTAL bill -Collateral source rule applies! to any benefits or compensation the P receives to the tortfeasor: insurance, employee benefits, discounts -payments dont apply if they are made by a joint tortfeasor, one who mistakenly thinks hes a tortfeasor, insurance company or another person on behalf of the tortfeasor -when gratuitous treatment etc. the plaintiff is entitled to recover the reasonable value of the services from the defendant since they are gifts to the plaintiff -minority rule does not allow P to recover when something is given to them at no charge Duty To Mitigate Damages: is the doctrine of avoidable consequences that does not allow recovery of those damages that P could have avoided by reasonable conduct (reasonably prudent person) on the part of the P after a legal wrong has been committed by the defendant Zimmerman v. Ausland Supreme Court of Oregon, 1973 D introduced an expert witness who said that if she had it surgically fixed she should be able to make a complete recovery --Does P have to consent to the surgery to maintain damages for a permanent injury? -test is whether under the same circumstance of the particular case an ordinary prudent person would do soduty of reasonable care under the circumstances Factors considered are risk involved, probability of success, expenditure of money or of effort required, probability of success, pain sometimes Here the facts are not so clear that this can be decided as a matter of law, there was no error in submitting it to the jury -this is distinguished from contributory negligence which is unreasonable conduct on the part of P that contributes to the accident in the first place these are POST accident

Punitive Damages:
-additional sum over and above compensation to the P for harm suffered -purpose is to punish defendant -supreme court has limited these and made sure they are limited to this particular case Cheatham v. Pohle Supreme Court of Indiana, 2003

Cheatham and Pohle divorced in 1994 and Pohle retained photos he had taken of her in the nude and during consensual sexual acts She sued for invasion of privacy, intentional infliction of emotional distress, 100K in compensatory damages and 100K in punitive damages from jury Indiana code made 25% of punitive damage payable to her and 75% payable to treasurer of the state and it went into a fund against violent crimes She said this violated the state constitution and the 5th Amendment taking clause--negated -state legislatures have broad discretion for awarding and limiting punitive damages and they are controversial -they are part of the common law and can be modified or abolished and no person has a private interest or right to a rule of common law Notes: -compensatory damages are required for punitive in this case, but that is not always true -usually for intentional torts you can get it, in negligencegross, willful, wanton, reckless even in strict liability where the is actual malice if they knowingly knew of defect and disregarded the foreseeable harm -showing of malice allows, usually for punitive damages but does not REQUIRE the jury to award them State Farm Mutual Automobile Ins. Co. v. Campbell Supreme Court of the United States, 2003 Facts: Campbell was driving with his wife in Utah and decided to make an unsafe pass by 6 trucks on a two lane high way -he hit an oncoming small car while driving on the wrong side of the road -The driver, was killed, and the other car involved and Slusher was permanently disabled -Campbells completely fine -in ensuring wrongful death and tort action, it was ultimately determined that Campbell was the cause of the accident -jury awarded 1 million compensatory damages and $145 million in punitive for Campbell -Yes punitive damages largeand it far exceeds its purpose of being a determent and retribution -completely unforeseeable damagesdefeats due process b/c due process prohibits grossly excessive -this is not a role for the courts, this is overreaching by manner and JURISDICTION, must be a punishment for the ACTUAL CONDUCT THAT HARMED P -refuse to instate a bright line number but in Gore said 4-1 ratio p to c damages is close to the line of excessive and unconditional -also mentions that damages for IED kind of wrap up punitive damages within Exxon Shipping Co. v. Baker Supreme Court of the United States, 2008 Super tanker Exxon Valdez off the Alaskan coast fractured its hull and spilled millions of gallons of crude oil into Prince William Soundowner settled w/ damages over 1 billion -Baker and others (commercial fisherman, native Alaskans) are bringing suit for their lost livelihood -Accident facts are sketchy: operator negligently left the bridge and his Blood alcohol level showed he had been drinkingevidence that Exxon knew about this and his alcoholic tendencies -damages awarded by the jury were 2.5 billionSC SAYS EXCESSIVE -unpredictable/random -clear pattern of arbitrary behavior w/ punitive damages across the country, we need to set rules, clearly verbal admonishing and levels shock of conscious etc. are not reliable -we need to limit outlying punitive damages by more rigorous standards than the constitutional limit -sets a limit at .65:1 ratio for MOST CASES

-and here they say 1:1 will be the limit for maritime cases such as this -punitive damages reduced to 507.5 million Vicarious Liability: Remember the person vicariously liable does NOT need to be negligent in any way, and if they were could be sued in a straight negligence suit. (again, this is just DUTY, so we still need breach, causation and damages) A: Respondeat Superior: Employer responsible for eees torts committed in course of employment. Commuting is not in course of employment (going-and-coming rule). Personal acts that are not far removed in time, space, and purpose are within course of employment (detours). Personal acts that are far removed are outside course of employment (frolics). -Usually scope of employment=advancing the MISSION OF the employer (often difficult for intentional torts) Caveats: Courts will impose liability on Employer: Even if eer was not negligent (that is, even if eer was behaving reasonably); and Even if eee committed an intentional tort. BUT, most courts do not hold eer liable for punitive damages for intentional tort unless Eer authorized the intentional tort; or Eer was reckless in hiring the eee (for example, if eee has prior record). Factors to Consider for Determining if someone is an Employee: Extent of control master has over their work Whether the actor is engaged in a distinct occupation or business (handy man is more typically an employee than a computer repair person or electrician) Specialized skill or just work under employers supervision: specialized skill more likely independent contractor Who supplies the tools, equipment and location of work The length of time for which someone is employed: people hired for a short period of time for a single purpose are typically not employees Paid on a full time basis or by the job Whether the employer is in business and whether the work is part of employers regular business ---renovating jewelry store or hiring a jeweler for you store Partys belief as to the nature of the relationship Factors to consider for whether it is within the scope of their employment: 1.) It is of the kind he is employed to perform 2.) It occurs substantially within the authorized time and space limits 3.) It is actuated, at least in part, by the mission of the employer (sever the master) 4.) If force is used by the servant against another, the use of force is not unexpectable by the master *Intentional torts can be tricky to fit within the scope of employmentif the employee believes, even if misguided, that it is advancing the employers purposes, it may be held vicariously liable **Motivation to serve test

Public Policy Reasons Behind it: -encourage employers to uphold their safety rules -adds consequences to the hiring decision (reckless in your hiring can even get you punitive damages) -employer is benefiting from the employees activities -fairness about where costs should lieif you are trying to make the plaintiff whole, the employer is more at fault than the general public maybe this is a slightly fairer way to make the plaintiff whole -remember that its a jury questionso even if you think that scope of employment are drawn to widely, it is a jurys instinct that declares it (jury question) -critics say this is just b/c of deeper pockets Bussard v. Minimed, Inc. California Court of Appeal, 2003 Ps employer hired pest control agents who sprayed her office, she got into her car and drove home and cause an accident This is not a case for respondeat superior. First, we prove the P was negligent (Negligently drove light headedly), you would then have to determine that P was working in the scope of her employment The test is that the result must be generally foreseeable consequence of the activity in the enterprise (company) -Note here that MiniMed did act reasonablybut if this was in the scope of her employment, they would STILL be held liable regardless of how they acted, however, this could not be a straight negligence case against MiniMed b/c they did not act unreasonably For Employer/Employee: The Employee must be acting within the scope of their employment Coming and Going Rule: General exception for scope of employmentgenerally driving too and from work is not considered within the scope of employment (there is a narrow exception for if your employer did something that would directly hinder your drive homeWORK HAPPY HOUR) OShea v. Welch United States Court of Appeals, Tenth Circuit, 2003 Facts: -D was an Osco store manager driving from his store to the Osco District office to deliver Kansas City Chief Football tickets that had been obtained from a vendor for distribution among Osco managers -According to Kansas law an employee is only acting within the scope of his employment when he is performing services for which he has been employed or when his is doing anything which reasonably incidental to his employment----factors to consider whether slight or substantial deviation: employees, intent, nature, time and place of deviation, time consumed by the deviation, work for which the employee was hired incidental acts reasonably expected by the employer, freedom allowed to the employee in performing his job responsibilities -here, maintenance was for a work car, this could be of enough mixed purpose to sustain a jury -time and place, accident was before the actual turn into the service station -also managerial positionfreedom to do other things at work Assuming that he was acting within the scope of his employment on the initial trip, a reasonable jury could find that he was acting within the scope of his employment when going to the service station -summary judgment is inappropriate here Independent Contractors: Did B control As work? -basic rule is that there is no liability for someone who is an independent contractorso you have to decide whether someone is an employee or an independent contractor (this will be a factual inquiry for the jury of whether or not eh EMPLOYER was controlling the way that this guy was doing his work)

Murrell v. Goertz Court of Appeals of Oklahoma, 1979 -alleged assault and battery from co-defendant Bruce Goertz -Goertz was making his monthly collections for the delivery of OK publishing cos newspaper -Murrell had an argument w/ him over hole in screen door and Goertz hit him, Murrell was injured and required hospitalization -IC is one who engaged to perform a service for another according to his own methods and manner free from control and direction of his employer in all methods and manner -test is whether the principal controls the physical details of the work or not -he is an independent contractor and the level of control from appellee is not enough -just arranging for work to be done from an independent contractor is not enough, IC does work on his own time, servant does not -this rule still remains but has TONS of exceptions Nondelegable Duties: certain DUTIES that the courts will not permit to be delegated to an independent contractorduty can be delegated to another but the responsibility for a negligent failure still remains with the owner -commonly the actual owner is also negligent on his OWNand the plaintiff can bring negligence charges and vicarious liability charges for the independent contractor Maloney v. Rath Supreme Court of California, 1968 Facts: Ds automobile collided with P and it was cause by a brake failure -three weeks prior D had her breaks redone by a mechanic: Evanchick -Trial court determined that Evan chicks negligent repair effort was the cause of the accident -One who carries on an activity that threatens a grave risk of serious bodily harm or death unless instrumentalities used carefully---can be liable for negligence that causes damage -this is an nondelegable duty in this casethis is a grave risk of threatened bodily harmthe duty to drive a car with functioning breaks is so important that you will always be liable for the negligence will always be attributable to you (you cant benefit from the independent contractors rule) -she is free to select the IC and to demand indemnity from him, however BECAUSE this duty is Nondelegable under Vehicle Code, the fact that the break failure was a direct result of their negligence is no defense Public Policy: -this is a public policy reasoning that one cannot put really important duties or avoid responsibilities by placing them on another, encourages safe choices of maintenance providers -exception: homeowner not liable for the actions of ic (roofer example on 701) -no negligence collateral to the risk (no liability if the negligence is a collateral of the risk the IC assumed) -illegal activities: one who contracts for these is an illegal actor and liable vicariously -negligence in selecting a contractor: failed to give appropriate instructions, continued even in light of danger etc.the company is liable for its OWN negligence Joint Enterprise -company or business venture where a couple of parties have a business relationship w/ each other, you can be liable for each others torts in pursuance of the business tort is committed in furtherance of the business -more turned on the nature of the business (depends on your structure)

Popejoy v. Steinle Supreme Court of Wyoming, 1991 -D was driving to w/ daughter and a niece to pick up a calf -joint enterprise, burden of proof is on party asserting it, Popejoy here -it is a business or commercial undertakingexpress or implied agreement, common purpose, community interest, equal right to a voice in direction of the enterprise -this is an attempt to warp the relationship into a business oneno contract, no profit motive -summary judgment for P Bailments: Exception for Vicarious Liability Typically when you entrust your property to someone else, you are not liable to torts committed w/ that property when it has been entrusted to someone else (Lend someone your ladder and then hit someone with it, there is no liability through this action to you just b/c you are the owner of this) Family Car Doctrine: -Exception for cars: if you loan your car to someone (especially in a family situation), you can be liable for their actions (express or IMPLIED consent) -Almost as though there is negligence in your choice about loaning the car to a particular person Federal law: Graves Amendment: removes vicarious liability for car rental companies: car companies used to ALWAYS be the deeper pocket ---now they are carved out Malchose v. Kalfell Supreme Court of North Dakota, 2003 P and D in accident Ds parents liable under Family Car Doctrine (they were owners of the car) Issue: Did the lower court properly apply Family Car Doctrine? Application/Holding: -FCD asserts liability on owner of vehicle for negligent operation by a person using the vehicles with the express or implied consent for the owner for purposes of the business or pleasure of the owners family -affirmed thought he had moved away for college etc. Imputed Contributory Negligence: Imputed negligence under respondeat superior or vicarious liability bars B from recovery against another defendant in a contributory negligence jurisdiction and reduces recovery in a comparative negligence jurisdiction. (historical common law rule that has been limited in many instances) *Typically these are limited to cases where B would be vicariously liable for As negligent acts (for cars, there is not really a master-servant relationship where A would monitor Bso we say its more like an agency of IC and dont impute the negligence) Smalich v. Westfall Supreme Court of PA, 1970 -Smalich is asleep in car operated by her friend Westfall and they get in an accident -Smalich is killed and her estate tries to sue Westfall and Blank -trial court bars recovery for Smalich b/c Westfalls contributory negligence was imputed back to her -Since we have imputed Westfalls negligence to Smalich, when Smalich wants to be P to Blank and she can NOT recover due to contributory negligence

DO NOT do anything with background doctrine of imputed, contributory negligencebut they LIMITED it b/c they dont want the passenger to be a backseat driver (still said it would be allowed for masterservant relationships or joint enterprises) -It has been largely rejected in the areas of driver and passenger, husband and wife (historically a husbands negligence was imputed to the wife), parent and child -Both Ways Test: under attack: if negligence can be imputed, contributory negligence will also be. Courts do still allow this in situation with an employer and an employee: Taxi Driver accident with Smith (both are driving negligently) Taxi Company would attempt to sue smith for the damage to the taxi----this is a situation where the court would impute the drivers negligence through respondent superior so now when the taxi company sues Smith, they cant recover b/c they are negligent -in a contributory negligence jurisdiction this would BAR your recovery, in a comparative negligence case it would reduce your recovery Joint Tortfeasors: Both Intentional and Negligence Torts Exception for Contribution for Intentional Tortfeasors: generally cannot collect contribution from the other parties. (common law rule that has been resistant to change) Joint Liability: Getting multiple defendants on the hook for the same tort. Joint and several liabilities in ONLY three situations: REMEMBER, if DAMAGES are independent (2 separate fires), there is no joint and several liability 1.) The Ds acted individually to cause an indivisible harm (a car accident caused by several drivers negligence) 2.) The Ds share a common duty to P (owner and driver of a car; eer and eee in instance of respondeat superior liability; etc.) 3.) The parties acted in concert (but the less joint planning, the less likely that the court will impose J&S liability)

Contribution: Apportionment of the damages between joint tort feasors (goes in this order) With contributory negligence, P can sue any 1 defendant and collect the full amount, then D can then indemnify himself by other defendants, ---Where there is Joint and several liability the damages are just divided by # of tortfeasors. ---There is no contribution for intentional torts Bierczynski v. Rogers Supreme Court of Delaware, 1968 -Joint and several liability: the ubiquitous common law rule-you could sue anyone who was involved in the tort and they could be on the hook for all the damagesor you could sue all of them and the court would apportion damages -codefendants drag racing but only one D hits the carhowever, court calls this concurrent negligence -yes, there is a general consensus that this is all negligence regardless of actual contact, there is an overall negligence at play here -it is an act of concurrent negligence conferring liability on each defendant (concerted action so joint and several liability can apply)

1.) Concerted actionpreplanned, concerted activity (drag race) (plan to beat someone up)even if 1 person technically causes the injury, both are joint and severally liable for the damages. 2.) Defendants Acted Independently but produced an Indivisible Harm-- (both parties are to blame for a harm, and there is no way to divide out and figure out who was responsible for the harm) -5 CAR pileups where all drivers were driving negligently ---this is an indivisible harm where everyone would be on the hook for the full extent of the damages or for their share of the damages if the lawsuit was brought against several of them -1 d leaving a gate to construction site open, other D knocks into a person and they fallJOINT HARM, both are jointly and severally laible 3.) Defendants fail to perform a common duty to the plaintiff : (2 parties based on their relationship with eachother: employer/employee, seller/buyer) **the plaintiff can choose how they want to go after each of the five defendants (whatever seems easiest and fastest to the plaintiff) -in most jurisdictions the defendants can do lots of things to sort this out, Cross-claims (to get a judgment in his name), Third party Complaints or file a later action against the other defendants Joint and Several Liability and Comparative Negligence:

Joint and Several Liability is VERY plaintiff friendly and remains in all 5 jurisdictions which have contributory negligence (dont want the jury thinking about % fault) -any D can sue other defendants but the total damages will just be divided by # of tortfeasors -CONTRIBUTION IS STILL ALLOWED where there is joint and several liability, even when there is contributory negligence (so D can seek contribution from another D even when he is negligentthis is not barred) Several liabilities (% liability for each defendant) is defendant friendly and more in line with comparative negligence. -4 jurisdictions that have comparative negligence that have also retained joint and several liability (IL example)tension in the lawsome will figure out contribution by %, some just by dividing tortfeasors -15 jurisdictions have pure several liability (jury is asked to figure out how much responsibility each party fairs, and a P can recover that % damages) -28 jurisdictions have a mishmash of various several liability schemes: some have several liability but where the is an insolvent defendant, then that defendants share of the liability is reapportioned among the other defendants (make up unfairness to P of a missing defendant), others have a threshold for imposing joint and several liability-the defendant who is on the hook has to be more than x percent responsible for the accident in order for joint and several liability to apply

HYPO: P is 20% negligence, D 1 is 30% and D other driver is 50% In a Joint and Several liability jurisdictions, p can recover 80%, from any defendant J+S with contributory negligence: 0, b/c she is also negligent In a several liability jurisdiction the p can recover 30% from D1 and 50% from D2 (NEW MEXICO RULE) Coney v. JLG Industries, Inc. Supreme Court of Illinois, 1983 -remember he cant sue his employer b/c employers are immune from suit under state statues -Should comparative negligence mean we should remove joint and several liabilities?

-They want to keep joint and several liability to keep fairness to the plaintiff and the point of tort law is to make the plaintiff whole--- Here b/c the mfr. Was negligent, they can be at fault for all of it, even if there is another defendant that should have been liable (the employer, who has immunity) -So while this unfair, at least it is unfair to a defendant rather than to a plaintiff (dont want the burden of an insolvent or IMMUNGE party to be on the plaintiff) Bartlett v. New Mexico Welding Supply, Inc. Court of appeals of New Mexico, 1982 -one defendant was completely unknown, so even though P was not negligent at all, the two defendants were negligent under comparative negligence -joint and several liability cannot be maintained in our pure comparative negligence system on the theory of one indivisible wrong (no unity in injury) -Negligence of the individual should be % based30% of harm, 30% money damages (rejects the idea that the damage is unitary) -In NM, we have opposite of IL, and will only be able to recover for that particular persons share of the blamethis is a comparable unfairness, but it is different from in Illinois -in NM the unfairness will fall on the plaintiff or in IL the unfairness is on the defendant (inverse rules of each other) Satisfaction and Release: P may have many suits, but only ONE satisfying monetary judgment -if P settles with 1 defendant, their recovery is reduced by that settlement -Prevents p and a friendly defendant colluding outside of court and splitting the difference of the rest of the damages Bundt v. Embro Supreme Court of New York, Queens County, 1965 -many suits but only one satisfaction: if you are satisfied by one judgment all other defendants are discharged -you can sue as many times as you want but only one judgment to collect on -dissatisfaction with the verdict or amount of damages may be actionable for appeal but does not prevent collateral estoppel on the second action requested by second defendants to estop p from relitigating damages -Satisfaction is different from judgment: P is entitled to full compensation for the injury so it is compensated when it is ACTUALLY PAID Release: P settles with D and pledge never to sue about the accident ever again, the literal terms of K were a release for all defendants involved in the tortcourts in most jurisdictions will read this as a MORE NARROW contract not to sue that one particular defendant Covenant not to sue: not to sue that particular defendant b/c they have settled (more narrow than a release) Cox v. Peal Investment Co. Supreme Court of Colorado -negligence case for falling on property -d and p had agreement not to sue -p tries to sue another tortfeasor and that D says it is release b/c original was release -no, not here, if you waive your right to sue one for just a small damage this does not imply that you cannot sue other tortfeasors, this was a harsh and illogical rule and overly benefits a defendant Elbanor v. Smith Supreme Court of Texas, 1992

-Mary Carter agreements exists anytime a settling defendant has a financial interest in the outcome of the remainder of the case (usually the settling defendant will agree to testify against other defendants) No-while some argue they promote settlements, only the initial settlement and then they distort the entire case and also persuade the worst defendants to settle for the least -the public policy concept of favoring fair trials outweighs public policy of partial settlements, and this is a prime example of that

Contribution and Indemnity: Exception for Intentional Torts: intentional tortfeasor typically does not have a right to contribution
Contribution: *Contributory Negligence contribution rules: just divided by the number of tortfeasors *Comparative Negligence they are usually % based for the % that defendant is at fault *Most states permitting contribution do not require that a judgment be obtained against a tortfeasor before he pays and seeks contribution -in many jurisdictions a d can file a cross claim for contribution or a (motion for contribution w/o a cross claim) -Majority view is that contribution hinges on joint liability so the defendant from whom contribution is sought must be individually liable to the plaintiffif there was never any liability due to immunity, assumption of risk, contributory negligence to P, then this D is NOT liable for contribution. Important Caveats: -you can still collect contribution in a jurisdiction with contributory negligence -you cannot collect contribution from an immune defendant -Most jurisdictions divide contribution by a pro rata share (# of Ds) but some appropriation liability on the basis of % at fault Knell v. Feltman United States Court of Appeals, District of Columbia, 1949 The taxi drivers company can be on the hook for drivers negligence b/c of vicarious liability under respondent superior and acting within the scope of employment -Whether the plaintiffs choice about who to sue in the first instance can bind the defendant to pay the damages --YesCRFP 14 and P is allowed to pick whichever defendant she wants and then they are to sort it out -When a party is not an intentional and willful wrongdoer but are made so by legal inference or intendment, contribution may be enforced Exception for Intentional Torts: -You can allow recovery from a different defendant (as long as not an intentional tort)---the defendant who you chose to sue can seek damages from the other defendant Yellow Cab Co. of D.C. Inc. v. Dreslin Court of Appeals DC, 1950 In DC so contributory negligence, complete bar to recovery applies

YOU CANNOT SEEK CONTRIBUTION from an immune party (Here, since the rights of contribution arise out of a common liability-since a husband and wife are not liable to each other, there is no cause of action from W to H, so no contribution) P and D collide, negligence established by both parties Taxi cab and husband are both comparatively negligent, of damages YCs drivers negligence is imputed to the company so YC cannot recover from Mr. Dreslin b/c of contributory negligence barring recovery -Mrs. D cant sue Mr. Dreslin b/c of immunity, but she can collect the full amount from YC due to joint and several liability, however YC cant get contribution from Mr. Dreslin b/c of his immunity and b/c of imputed contributory negligence No-an injured party plaintiff in a suit from which the right of contribution develops must have a cause of action against the party from which contribution is sought (wife has no cause of action against her husband) Solcum v. Donahue Court of Appeals for MA, 1998 P files a suit for negligence and gross negligence P also files third party complaint against Ford denying negligence seeking contribution and indemnity Prior to suit Ford had reached a settlement and nonsuit with P for 150K So when it was impleaded it sought summary judgment on the grounds that settlement was made in good faith and claims for contribution were extinguished Yesthis is valid if in good faith -a settlement out of court with the injured party is allowed as long as the other party is a joint tortfeasor and the settlement is reasonable -not all states protect a settling defendant from contribution -typically contribution allows a defendant to collect portion of the damages where indemnity allowed an entire coverage of damages (hold harmless contract clause) imposed by law b/c of relationship rather than wrongdoing

Strict Liability: Defendant pays damages without fault (no negligence or intent needed)the DAMAGE or INJURY must be the exact type that the strict liability was designed to prevent againstRIGHT HARM (like negligence per se) -DUTY+BREACH, still need causation and damages
Animals: A: Domestic Animals: The person in possession of the animal (not necessarily the owner) knows or has reason to know of its vicious tendencies. The injury must be the exact injury the strict liability was meant to protect against (biting, as opposed to knocking someone over when excited) B: Wild Animals -usually strictly liable, dont need to have reason to know it is dangerous -most states have created statutes about these and you can have a negligence per se case if it is the RIGHT HARM Ultrahazardous Activities: This is extremely rare (blasting, transportation and storage of toxic chemicals and inflammable liquids, pile driving, crop dusting, fumigation with toxic chemicals, fireworks displays, testing rockets, plutonium production facilities, hazardous waste disposal facilities, oil wells, storage of large quantities of liquids and water) Remember this is NOT absolute liability; it is just liability w/o intent or negligence for a SPECIFIC harm.

Strict Liability Factors: 1.) Existence of a high degree of risk of harm 2.) Likelihood that the harm will be great 3.) Inability to eliminate the risk by exercising reasonable care (if you can eliminate the risk by using reasonable care the proper recovery is through negligence, not strict liability) 4.) Extent to which the activity is/is not a matter of common usage (Driving-inherently dangerous, but TOO COMMON) 5.) Inappropriateness of the activity to the place where it is carried on; and (this can be debatedsome courts say if its ultra-hazardous it should be ultra-hazardous everywhere some carve out exceptions-blasting in residential area) 6.) Extent to which its value to the community is outweighed by its dangerous attributes Who should bear the riskthe plaintiff or the defendant? What is more efficientencouraging reasonable behavior or driving D out of business? -If the activity is determined to be so hazardous that even reasonable efforts to reduce harm may not, the best argument to avoid strict liability will be its an activity of common usage (DRIVING) Rylands v. Fletcher 1865 Facts: Ds were owners of a mill, P had a mine built underneath it -a part of their mill negligently bust and flooded the plaintiffs mine (mining common use here!) here we must look at the action of Dhe has a responsibility to keep what he built SAFE, b/c there is apparent danger if it escapes -if we look at example of cattlethe person bringing it there to their land, they are responsible if it wander, responsible for all mischief Miller v. Civil Constructors, Inc. Illinois Court of Appeal, 1995 P was injured when a stray bullet ricocheted during the course of firearm practice in a nearby gravel pit and causes him to fall from a truck -2 charges are brought, one against the owner of the gravel pit and two is against the employer of the police officers involved in firearm practice -no strict liability (this might be hazardous but is not an ultra-hazardous activity) : reasonable care can eliminate most of the risk, common use, appropriate location, valuable to the community, harm can be great, but can be reduced easily Indiana Harbor Belt R.R. Co. v. American Cyanamid Co. United States Court of Appeals, 7th Circuit, 1990 -P is a producer of acrylonitrile, a highly toxic, flammable chemical -D was the manufacture of the chemical (who actually put the stuff into the shipping car) -It spilled over 20,000 gallons and caused concern and the DEP had to decontaminate a huge area -Sued for 981K to recover for these efforts -This is not a case for strict liability: here there was an actual negligent act (leaving a latch open) negligence is the proper way to seek recovery here, also there is a list of dangerous chemicals and this is midway so all those above it would have to be strict liability

-you have to have trains go through economically efficient areas---maybe its more negligent to have the housing development near the hubs and spokes system of the train (this is the way that the system operates, and is the most efficient way) -It is more efficient to encourage people to be reasonablein other situations it may make more sense to drive D out of business or at least out of urban areas -here negligence claim is a better way to get around this

Limitations on Strict Liability: Right Harm, (proximate) Causation, Assumption of Risk (no comparative/contributory negligence)
Foster v. Preston Mill Co. Supreme Court of Washington, 1954 MUST BE THE RIGHT HARM Ps mink was killed by ds blasting Even though Blasting in WA is an area of strict liability there is no recoveryit is the nervous and special characteristics of the mink that must bear the burden here, not the blasting operation itself -this is not what the strict liability was designed to protect -it must be the actual risk that the statute was put in to place to protect against Other examples: vicious dog knocking someone over when excited, not the harm that was used to make it strictly liable Golden v. Amory Supreme Judicial Court of MA, 1952 PROXIMATE CAUSE LIMITATION (intervening act of Godunforeseeable, no proximate cause) Ps activity may have been inherently dangerous but the act of god, the hurricane was the true issue that caused the flooding not the inherently dangerous activity -even the act of a third party to who the D has no control cannot give rise to strict liability even where Ds activity is subject to strict liability---or Gods act of weather -notes on 740 -Strict liability has a proximate cause limitationit wasnt foreseeable that there would have been a storm this big Sandy v. Bushey Supreme Judicial court of Maine, 1925 P kicks Ds horse, horse responds and injures P There is evidence of a vicious temperament in the horse, so strict liability is involved Can we have contributory negligence?claim against the plaintiff -no, the cause of action is not based up on negligencewe need more than just the standard level of contributory negligencethey would need wanton or reckless negligence here for example (remember this is in Maine, but most states have moved in this direction anyway) -some states do allow comparative negligence to reduce how much P can recover when D is strictly liable and have called these statues responsibility statutes (some also apply the comparative or modified rule, if her fault is more than cant recover even with strict liability) -now this is still usually good law, but you can also use the more limited defense of assumption of risk however, you would have to prove that the plaintiff knew about the risk and its scope and voluntarily encountered it (some states still allow this to be a complete BAR to recovery, others reduce the percentage of damages similar to comparative negligence) -For states where AOR is a complete bar, if the plaintiff did not know the danger, but should have, she may have reduced recovery whereas if she did know and consciously continued to use it she will have no recovery

Nuisance: Field of liability rather than to a particular tort

Public nuisance: Unreasonable interference with an interest of the community: 1.) P must have standing: He or SHE is personally injured (they have to be able to state a particular claim)want to limit the courts time to those who have an actual adverse problem between P and D, not just a general charge that P doesnt like Ds behavior (owning a fishing business v. Fishing once a summer in a contaminated lake). 2.) Injury must be caused by invasion of public right. 3.) Interference must be objectively unreasonable (This has been extended to nontraditional public nuisances for gang activities, gun manufacturers) Private nuisance: Substantial and unreasonable interference with individuals use and enjoyment of property (BUT caveat emptor) -remember that you may not have a private nuisance claim when you have purchased a bad piece of property 2**Unreasonableness of interference

Nuisance claims may stem from: (Prerequisites for Liability) Negligence OR RECKLESS: (negligently maintaining something etc.) Intentional: (deliberately or with substantial certainty interfere) Strict Liability: (ultra-hazardous) *ON TOP OF THIS YOU MUST PROVE THE INTERFERENCE WAS UNREASONABLE: -typically interference is unreasonable when the harm to P outweighs the value of Ds conduct or production -Unreasonable is a BALANCING test and is highly factual and is a question for the jury. Will consider both P and Ds perspectives -THIS IS AN OBJECTIVE STANDARD (what the ordinary/reasoanable person would consider unreasonable) Categories of interferences considered: 1.) Natural, normal and necessary consequences of running a lawful (properly zoned business): increase traffic, people etc. are not sent to the jury for a factual finding and are not indicative of nuisance 2.) Unnatural Consequences: Flood lights, air vents. These are often indicative of nuisance, even when lawfully zoned, when interference is unreasonable there can still be nuisance. THEN YOU NEED BUT, FOR AND PROXIMATE CAUSE AND DAMAGES Philadelphia Electric Company v. Hercules, Inc. United States Court of Appeals, Third Circuit, 1985

Public and Private Nuisance has limited STANDING: For public nuisance, your injury must be of the same KIND as the general public P sued D under theories of private and public nuisance hoping that D would clean up the property it formerly owned and produced hydrocarbon PECO is the new owner of the property and is ordered by the department of environmental services to clean it up for 400K) want to sue PICO but it had been taken over by Hercules PECO is suing Hercules for the old PICOs mess For private nuisance, it must be to separate property (this is the same land), and the public nuisance requires you to assert an actual interference, the same interference as the publicHere P had no standing to contest the contamination of Delaware River -this is a bizarre holding that eventually led to environmental protection laws b/c the common law could not grapple with this---PECO had to pay for PICOs mess (caveat emptor) Morgan v. High Penn Oil Co. Supreme Court of North Carolina, 1953 P sued D, his neighbor that was an oil company for creating a nauseating gas odor in great quantities that wafted onto Ps land -nuisance is not the same as negligence and does not require the same testnuisance can exist with or without the presence of negligence or intent (although they do call it intentional nuisances) -it is a field of tort liability rather than a single type of tort action -P can recover on nuisance charge here regardless of whether D acted negligently or carefully or reasonable manner *Negligent care of ones property can lead to interference with a neighbors property *Strict Liability, for example, of damage cause by blasting neighbors house, can also create a nuisance Carpenter v. The Double R Cattle Company Supreme Court of Idaho, 1985 P is the neighbor to Ds large 9,000 cattle ranch P is suing for nuisance saying that since the expansion of the farm there have been bugs, odors etc. onto their land -seeking an INJUNCTION to stop the ranchno injunction or damages awarded -Majority thinks injunctive relief is not possible here b/c the economic value of the defendant is so high, money damages would lead to an increase cost of meat which would impose harm on others aw well TEST FOR UNREASONABLENESS is a balancing actreasonable minds could differ on what is reasonable (majority v. dissent here) -general if the harm to P outweighs the value of defendant the conduct is found unreasonable -this can be narrowed by a smaller injunctionmaybe if they dont feed on these 500 feet, then we weight those particular factors as opposed to the whole cattle lot versus the plaintiff -the dissent says that this is ridiculous and outdated and thinks that Idaho should adopt the more modern comments to the restatement which allow for money damages to the plaintiff when there is good reason to compensate them for dealing with the harm or invasion to their property Important Notes: *Harm is generally held to be reasonable (same a common person, in that community, would suffer does not account for hyperactivity) -Zoning laws and Right to Farm Statutes have helped to prevent new residents from overriding established agricultural practices Winget v. Winn-Dixie Stores, Inc. Supreme Court of South Carolina, 1963 *Zoning Laws can be helpful against nuisance, but are NOT DISPOSITIVE, when there is unreasonable interference, even when lawfully zoned, there can still be nuisance

*Decreased value of a property is not allowed to be put on as evidence before the interference is proved unreasonable, it is not a factor in determining nuisance, but can be put on after -this case tells us more about what is unreasonable by splitting types of interferences into categories: 1.) Normal, necessary and natural consequence of the lawful operation of the business (increased traffic etc.) 2.) Unnatural consequences (flood lights in the parking lot, air conditioning fans) We are limiting the balancing test again her to just look at unnatural consequences Natural consequences wont even go to the jury b/c they are necessary for running the business -just ask the jury to do a balancing act (no particular right answer to whats reasonable and whats not) (prior to zoning laws, nuisance suits were the only way to control the location of certain types of activities and the court would hinge on the extent of the undesirably activityhow serious the interference was, from hospitals to funeral parlors) Role of Injunction v. Money Damages: Historically as long as ANY (even small) nuisance could be proved, an injunction would be granted, modern trend is to balance the factors and if the nuisance is not large to one P and economic reasons support allowing for it, the injunction is denied and money damages for permanent, continuous damages (past, present and future) are granted) -More lenient for injunctions for PUBLIC nuisance, rather than private nuisance Boomer v. Atlantic Cement Co., Inc. Court of Appeals of New York, 1970 Injunctions typically harder to receive (especially for large corporations) than money damages for permanent or continuing nuisance Lurking policy issue of air pollution in background, court extremely hesitant to extend hererole of legislature P, a neighbor, sues D who operates a cement plant in Albany for nuisance from dirt, smoke and vibration (injury to property) for injunction and damages the court should basically not try to make law as a by-product of this one private litigation typically in NY even if the nuisance produced small economic damages to P, the injunction would be grantedas long as nuisance has been properly identified (100 dollars or more of damages could be proved), however, here there must be a change in the ruleif true here the plant would have to be immediately shut down, it employs over 300 people -Uses Balancing test for unreasonable interference: was D acting in good faith, what are Ps damages? What is Ds economic value to society? How severe is the harm to P? -court issues a PERMANET money damage for all past, present and future damagesthis may not completely compensate the plaintiff, but is a common approach when the court cannot make policy decisions *injunctions are flexible and can be delayed or modifies (in order for technology to develop, or for cattle case area of land) or limited to times blasting can be done, time to make efforts to stop the nuisance

-this opinion was criticized by environmental activists for not inducing the industry to improve its state of technology and eventually lead to the Clean Air Act Amendment with strict deadlines forcing industry compliance for technological advancements Spur Industries Inc. v. Del E. Webb Development Co. Supreme Court of AZ, 1972 P is suing neighbor D who operates a cattle feed lot of over 30,000 cattle for Public and Private Nuisance No question of nuisanceodor and files and P is meeting resistance from potential buyers (he has over 1300 residential lots) and constant complaints from current residents -judgment for injunction of the feedlot of the lower court is affirmed -also talk about coming to the nuisance rule (this is not a complete barbut part of balancing test) where if you knowingly move beyond the city for lower taxes or other advantages you cant complain about the disadvantages of zoning laws not being there and lawful agricultural rules -this would apply only is WEBB Was sole plaintiff, but the homeowners didnt consent to this---there is no fault on D since he built this feedlot before Sun City was expanded close by, but this is the proper and legitimate regard of the courts for the interests of the public (if Webb was the only one to complain injunction would not be granted, but this is for the entire Sun City community) -however, Webb (who took advantage of cheap, large tracts of land at the cost of D) is required to indemnify Spur for a reasonable amount of the cost of moving or shutting down (this is limited to when the developer has with foreseeability brought a previously agricultural or industrial area the population which makes it necessary for granting an injunction against a lawful business and for which the business has no adequate relief)

Defenses To Nuisance: 1.) Intentional private nuisances, there is no contributory negligence defense (like with intentional torts) 2.) When it is not intentional, and stems from negligence most courts allow for a contributory negligence defense to eliminate or reduce recovery 3.) When nuisance is based on strict liability, contributory negligence of P in failing to discover the danger is not a defense but if P discovers the damage and deliberately proceeds to encounter it then we allow for contributory negligence or assumption of risk defense 4.) Coming to Nuisance Rule: Majority Rule is not dispositive of baring recovery, but it is a factor that is considered in the balancing test---if everything is equal it will BAR recovery. Self-Help to Abate a Nuisance: Privilege, not a DEFENSE: -Privilege to self-help to abate nuisance is like reasonable force to protect against trespass (it is available to the individual to whom the condition is a nuisance-usually limited, even by mistake, to that individuals premises) -The abatement of nuisance must be reasonable: personal injury or breach of peace is not privileged -Sometimes it can be required that P notifies D about the nuisance (as long as D doesnt already know) before he has a cause of action (overhanging branches can be a nuisance where it constitutes actual harmmust attempt self help) CT v. AEP DEFINITION: Unreasonable interference with an interest of the community P must prove standing; Injury must be caused by invasion of public right; Interference must be unreasonable; Interference must be: intentional (general or specific),

negligent or reckless, or ultrahazardous (strict liability) Causation (both but-for and proximate) DAMAGES