Torts Outline CH. 1 Development of Liability Based Upon Fault A tort is a civil wrong for w ic t e law provides a remedy.

! is area of law imposes duties on persons to act in a manner t at will not in"ure ot er persons. A person w o breac es a tort duty as committed a tort and be liable to pay damages in a lawsuit broug t by a person in"ured because of t at tort. Annonymous# A man w ose actions directly cause an in"ury to anot er$ is liable to t e ot er person even t oug is actions were not unlawful$ and e did not ave t e intent to cause t e in"ury to anot er party. %eaver v. %ard# A defendant is liable for all is actions causing in"ury unless t e in"ury was caused utterly wit out is fault. &moving away from strict liability' Brown v. (endall# An individual$ w o during t e commission of a lawful act uses ordinary care$ is not liable for in"uries caused to anot er party as a result of is act. &moving fart er away from strict liability' Co en v. )etty# A party is not liable in negligence for t e in"ury caused by is unforeseeable and involuntary actions. *pano v. )erini Corp.# An individual w o as sustained property damage caused by blasting may recover for is damages wit out a s owing of negligence by t e defendant due to policy reasons. Based on determining# w en a party as engaged in a lawful but dangerous activity$ w o s ould bear t e cost of any losses occurring as a result of t e activity$ t e innocent part or t e party w o as c osen to commit t e lawful$ yet dangerous act. Clearly t e latter s ould. +ote t at in t is case t e defendant were not negligent$ w ic means t at wit out strict liability as a t eory for recovery$ t e plaintiff would never ave recovered for is damages in negligence.

CH., -ntentional -nterference wit )erson or )roperty 1. Intent -ntent is defined two ways &1' wit t e purpose or .nowledge of causing a conse/uence$ or &,' w ere t e actor as t e .nowledge t at a certain conse/uence is substantially certain to follow. 0arratt v. Dailey# A party is liable for battery w en e is substantially certain t at is act will result in armful or offensive touc ing. !o maintain an action in battery$ it is not enoug t at t e defendant commits t e act itself intentionally$ even t oug t e act may cause a great ris. of arm$ t e defendant must .now or reali1e wit a substantial certainty t at is act will bring about t e contact or armful touc ing. % ere a reasonable person would believe t at a particular result was substantially certain to follow$ e will be eld in t e eyes of t e law as t oug e ad intended it. *pivey v. Battaglia# A party w o acts wit .nowledge and substantial certainty t at a particular result will follow is liable for all results flowing from is acts regardless of ow unforeseeable or unreasonable. % ere a reasonable person would believe t at a particular result was substantially certain to follow$ e will be eld in t e eyes of t e law as t oug e ad intended it. 2anson v. (itner# 0ood fait mista.e is not a defense to intentional torts w ere t e defendant intended t e conse/uence of is act. &confusing neig bor3s dog for wolf and .illing it' 4c0uire v. Almy# An insane individual w o is capable of forming t e intent to stri.e anot er or commit a armful act and acts upon t at intent is liable to t at individual for t e in"uries suffered. ! e fact t at insanity may ave been t e cause of t e intent is irrelevant. !almage v. *mit # An individual w o intends an act or conse/uence against one party and instead in"ures a t ird party is liable to t e t ird party for t e in"uries suffered. !ransferred intent# A doctrine in tort law t at provides t at if defendant intends to arm A but instead arms B$ t e

intent is said to be transferred to t e arm befalling t e actual victim as far defendant3s liability to B is concerened. ! is is t e doctrine of transferred intent$ it olds t at as long as t e defendant eld t e necessary intent wit respect to one person$ e will be eld to ave committed an intentional tort against any ot er person w o appens to be in"ured. A person can be c arged wit an intentional tort even if t ey intended to commit anot er one. 2. Battery Battery is intentional infliction of harmful or offensive bodily contact. At common law$ battery is t e tort of intentionally and voluntarily bringing about an unconsented armful or offensive contact wit a person or to somet ing closely associated wit t em &e.g. a at$ a purse'. Unli.e assault$ battery involves an actual contact. ! e contact can be by one person &t e tortfeasor' of anot er &t e victim'$ or t e contact may be by an ob"ect broug t about by t e tortfeasor. Cole v. !urner# -ntentional touc ing of anot er in an unreasonable and violent manner is battery. -n t e common law rule$ anger or violence was a re/uired element for battery. %allace v. 2osen# -n a crowded world$ a certain amount of personal contact is inevitable and must be accepted. Absent e5pression to t e contrary$ consent is assumed to all t ose ordinary contacts w ic are customary and reasonably necessary to t e common intercourse of life$ suc as a tap on t e s oulder to attract attention$ a friendly grasp of t e arm$ or a casual "ostling to ma.e a passage. ! e time and place$ and t e circumstances under w ic t e act is done$ will necessarily affect its unpermitted c aracter$ and so will t e relations between t e parties. ! e test is w at would be offensive to an 62D-+A27 person not unduly sensitive as to personal dignity. Fis er v. Carrousel 4otor Hotel$ -nc.# ! e snatc ing of an ob"ect closely attac ed to an individual constitutes battery even t oug t ere was no actual p ysical contact to t e individual3s body. Unpermitted and intentional contacts wit anyt ing so connected wit t e body as to be customarily regarded as part of t e ot er3s person and t erefore as parta.ing of its inviolability is actionable as an offensive contact wit is person.

28*!A!848+! &*8C6+D' 6F !62!* &19:;' < 1= Battery# Harmful Contact An actor is sub"ect to liability to anot er for battery if &a' e acts intending to cause a armful or offensive contact wit t e person of t e ot er or a t ird person$ or an imminent appre ension of suc a contract$ and &b' a armful contact wit t e person of t e ot er directly or indirectly results. <1> Battery# 6ffensive Contact &1' An actor is sub"ect to liability to anot er for battery if &a' e acts intending to cause a armful or offensive contact wit t e person of t e ot er or t ird person$ or an imminent appre ension of suc a contact$ and &b' an offensive contact wit t e person of t e ot er directly or indirectly results. &,' An act w ic is not done wit t e intention stated in subsection &1$ a' does not ma.e t e actor liable to t e ot er for a mere offensive contact wit t e ot er3s person alt oug t e act involves an unreasonable ris. of inflicting it and t erefore$ would be negligent or rec.less if t e ris. t reatened bodily arm. 8lements of Battery 1. An affirmative act a. t e act must be voluntary b. -nvoluntary?unconscious acts do not /ualify ,. -ntent a. )urpose? .nowledge to cause armful or offensive touc ing@

b. *ubstantial certainty t at substantial or offensive touc ing will occur. =. Harmful or 6ffensive !ouc ing a. 6b"ective standard# is t e person armful? offensive to a reasonable personA b. 85treme sensitivities of t e individuals will not be considered unless t e defendant .new of t e sensitivities. c. )laintiff need not be aware of t e touc ing at t e time t at it occurs. d. !ouc ing must be wit t e individual3s person &body' or any ob"ect w ic may be considered a natural e5tension of t e individual3s body. B. )laintiff must prove t at defendant3s voluntary act caused t e armful touc ing. 3. Assault -n common law$ assault is t e tort of acting intentionally and voluntarily causing t e reasonable appre ension of an immediate armful or offensive contact. +o actual contact must be involved. %ords in t emselves$ no matter ow t reatening$ do not constitute an assault. %ords must be followed by some overt act$ no matter ow slig t$ t at adds to t e t reatening c aracter of t e words. - de * et u5. v. % de *# A defendant may be liable in assault of a plaintiff$ even t oug t ere as been no actual p ysical invasion of t e plaintiff by t e defendant. &D t rew t e atc et at t e )' %estern Union !elegrap Co. v. Hill# ! e actual ability of t e defendant to cause armful or offensive touc ing is not a re/uirement for actual assault. Alt oug it was a "ury /uestion$ t e case was reversed on grounds t at *app ad not acted wit in t e scope of is employment.

8lements of Assault 1. A voluntary?affirmative overt act a. %ords alone are not enoug b. ) ysical act alone is enoug c. %ords may undo act?conduct ,. -ntent a. )urpose? .nowledge to cause armful appre ension of armful or offensive touc ing@ or b. *ubstantial certainty t at armful appre ension of armful or offensive touc ing will occur@ or c. !ransferred intent applies across torts &especially between battery and assault' and targets. =. -mminent Appre ension a. )laintiff must ave been aware and must ave perceived t e defendant3s conduct. &unli.e battery'@ b. ! e appre ension must be imminent# threat of future harm is not sufficient@ c. )laintiff3s appre ension must be reasonable &ob"ective standard'. B. Causation# )laintiff must prove t at t e defendant3s voluntary act caused t e plaintiff3s appre ension. 4. False Imprisonment Direct and intentional restraint of t e p ysical liberty of anot er t roug mental or p ysical boundaries wit out ade/uate legal "ustification. ! e two .ey elements of false imprisonment are &1' t e restraint of an individual against is will and &,' t e unlawfulness of suc restraint. ! e individual may be restrained by acts or merely by words w ic e fears to disregard. Big !own +ursing Home$ -nc. v. +ewman# A defendant is liable for false imprisonment w en t e defendant as prevented t e plaintiff from leaving a certain limited area wit out legal "ustification. )arvi v. City of (ingston# A defendant is not liable for falsely imprisoning t e plaintiff w en t e latter was not aware of t e confinement at t e time it occurs.

Hardy v. Labelle3s Distributing Co.# A person cannot maintain an action for false imprisonment w en no t reat of force was used to compel t at person to stay against is? er will. 8nrig t v. 0roves# A police officer is liable for arrest w en e arrests an individual wit out a warrant or probable cause t at an offense as been committed by an individual. % itta.er v. *andford# Confinement of an individual to a bounded area$ wit out means of egress$ can result in false imprisonment even if t ere is no actual p ysical restraint used upon t e individual.

8lements of False -mprisonment Affirmative act or omission a. ) ysical confinement# actual confinement or restriction of one3s p ysical mobility. b. Confinement t roug ta.ing of a personal property wit out w ic e?s e can not leave. c. 4ental confinement# fear of arm forces t e individual to remain wit in t e limited space. d. Failure to provide t e fear of egress &way out'. -ntent 1. )urpose?.nowledge to confine@ or ,. *ubstantial certainty t at t e act will cause confinement@ or =. !ransferred intent applies across torts. Limited *pace 1. D act must confine ) to a limited space wit confined boundaries. ,. +o false imprisonment w en an individual is prevented from entering an area or space Awareness 1. ) must be aware if is or er confinement at t e time of t e confinement. &2estatement &*econd' of !orts < B, as ta.en t e position t at t ere is no liability for intentionally confining anot er unless t e person p ysically restrained .nows of t e confinement or is armed by it.' ,. 85ception# some courts waive t e awareness re/uirement if t e ) as suffered p ysical in"ury during or because of confinement. +o reasonable means of escape# ! ere is no false imprisonment# 1. ! ere is a reasonable means of escape$ and ,. ! e ) is aware of it at t e time of confinement -ndividual must be eld against is or er free will 1. mere obligation to stay is not enoug ,. submission to stay due to persuasion of anot er is not sufficient C. False Arrest# arrest and custody by a person w o claims$ but does not ave legal aut ority. False arrest may lead to false imprisonment if ot er elements of t e torts are satisfied. +o action of t e person arrested actually committed t e crime for w ic e?s e is arrested. Difference between false imprisonment and false arrest# A false arrest must be perpetrated by one w o asserts t at e or s e is acting pursuant to legal aut ority$ w ereas a false imprisonment is any unlawful confinement. 5. Intentional Infliction of Emotional Distress ! e intentional or rec.less infliction of severe mental and emotional distress t roug e5treme and outrageous conduct. < B: 6utrageous Conduct Causing *evere 8motional Distress &1' 6ne w o by e5treme and outrageous conduct intentionally or rec.lessly causes severe emotional distress to anot er is sub"ect to liability for suc emotional distress$ and if bodily arm to t e ot er results from it$ for suc bodily arm.

*tate 2ubbis Collectors Ass3n v. *ili1noff# 6ne w o causes severe and emotional distress to anot er is liable for suc emotional distress and for bodily arm resulting from it. *locum v. Food Fair *tores of Florida# Conduct t at causes mere emotional distress is not severe enoug to allow recovery based on an independent cause of action. Harris v. Cones# An individual must suffer a severely disabling emotional response to t e tortfeasor3s conduct in order to recover damages for intentional infliction of emotional distress. !aylor v. Dallelunga# A t ird party may not recover damages for intentional infliction of emotional distress w en t e defendant was not aware of t e t ird party3s presence at t e time t at defendant3s conduct was ta.ing place and t e t ird party did not suffer any p ysical in"ury. 6ne w o$ wit out a privilege to do so$ causes severe emotional distress to anot er is liable &a' for suc emotional distress and &b' for bodily arm resulting from it.

8lements of -ntentional -nfliction of 8motional Distress 1. The conduct must be extreme and outrageous a. Conduct must go beyond all bounds of decency b. Conduct must be e5treme and outrageous based on t e reasonable person3s standard c. An individual3s sensitivity will not be ta.en into consideration unless t e D is aware of t em. 2. The conduct must be intentional or reckless a. )urpose? .nowledge b. *ubstantial certainty c. 2ec.lessness =. There must be a casual connection between the wrongful conduct and the emotional distress. B. Emotional Distress must be severe e. ) must s ow actual in"ury f. ! ere as to be a casual connection between t e conduct and t e emotional distress. g. -n"ury of ) must not be p ysical. C. -ntentional -nfliction of 8motional Distress on t ird parties 1. D must be aware of t ird party3s presence ,. *ome "urisdictions re/uire t ird parties to ave suffered p ysical in"uries as well. 6. Trespass to an! -ntentional entry upon t e land of anot er wit out permission. -n order to maintain an action for trespass to land$ no p ysical in"ury to t e land is necessary. ! e old common law rule was t at all t e space below and above t e land was trepassable$ now@ owever$ it is limited to t e space above and below t e land of w ic t e possessor could ma.e reasonable use. -f t e intrusion interferes wit t e rig t to e5clusive possession of property$ t e law of trespass applies. 1. 8ntry of an individual ,. Causing t e entry of anot er individual or an ob"ect or =. !resspass may occur w en one e5ceeds t e scope of permission w en staying on anot er3s land t roug # a. e5ceeding t e prescribed period of permission eit er because permission as been terminated or t e purpose for w ic it was allowed as been accomplis ed@ or b. e5ceeding t e purpose for w ic one is permitted to stay on t e land@ or c. going beyond t e p ysical scope. Doug erty v. *tepp# -n order to maintain an action in trespass$ it is not necessary t at t ere be actual p ysical in"ury to t e land. !respass /uare clausum fergit is t e type of trespass w ereby t e trespasser Ebro.e t e close$F entered upon t e land of t e ). Bradley v. American *melting and 2efining Co.# A landowner?possessor must s ow actual p ysical damages for recovery in trespass by intangible ob"ects or substances.

Herrin v. *ut erland# -t is trespass to pass over$ or cause an ob"ect to pass over$ t e land of anot er$ even of t ere as been no touc ing of t e soil. 2ogers v. Board of 2oad Com3rs for (ent County# !respass may be committed by t e continued presence of a structure on land after t e landowner as effectively terminated is consent to ave t e property on is land. < 1:G Failure to remove a t ing placed on t e land pursuant to a license or ot er privilege A trespass$ actionable under t e rule stated in < 1;>$ may be committed by t e continued presence of t e land of a structure$ c attel or ot er t ing w ic t e actor or is predecessor in legal interest t erein as placed t ereon &a' wit consent of t e person t en in possession of t e land$ if t e actor fails to remove it after t e consent as been effectively terminated$ or &b' pursuant to a privilege conferred on t e actor irrespective of t e possessor3s consent$ if t e actor fails to remove it after t e privilege as been terminated$ by t e accomplis ment of its purpose or ot erwise. 8lements of trespass of land Doluntary act entry upon t e land of anot er@ or causing anot er individual or an ob"ect to enter t e land of anot er. -ntent 1. )urpose? .nowledge to enter upon t e land@ or ,. *ubstantial certainty t at one will enter upon t e land =. *o long as one as t e intent to enter$ it is not necessary t at one ave intent upon t e land of anot er. Damages 1. +o actual damage are re/uired for p ysical entry ,. Actual damages re/uired in trespass by intangibles suc as gases. ! e entry must be unaut ori1ed. ". Trespass to #$attels -ntentional interference wit a rig tful owner3s?possessor3s use or possession of c attel. Unli.e trespass to land$ trespass to c attels is not actionable unless t ere is an actual in"ury suffered by t e owner. ! e interference can be any p ysical contact wit t e c attel in a /uantifiable way$ or any dispossession of t e c attel &w et er by ta.ing it$ destroying it$ or barring t e ownerHs access to it'. As opposed to t e greater wrong of conversion$ trespass to c attels is only actionable if actual damage can be s own. 6ne w o commits a trespass to a c attel is sub"ect to liability to t e possessor of t e c attel if$ but only if# &a' e dispossesses t e ot er of t e c attel$ or &b' t e c attel is impaired as to its condition$ /uality$ or value$ or &c' t e possessor is deprived of t e use of t e c attel for a substantial time$ or &d' bodily arm is caused to t e possessor$ or arm is caused to some person or t ing in w ic t e possessor as a legally protected interest. -n sum$ t e basic elements of a claim of trespass to c attels are# 1' t e lac. of t e plaintiff3s consent to t e trespass$ ,' interference or intermeddling wit possessory interest$ and =' t e intentionality of t e defendant3s actions. ! e measure of t e damage in trespass to c attels is t e actual diminution in t e value of t e c attel caused by t e interference of t e c attel. 0lidden v. *1ybia.# An individual may not maintain an action for trespass to c attels unless e as suffered actual damages as a result of t e trespass. &little girl got bitten by dog s e was touc ing'

Compu*erve -nc. v. Cyber )romotions -nc.# !respass to c attel is actionable w ere t e value or condition of t e c attel is intentionally impaired. &)romotions company sending unsolicited email advertisements to Compuserve customers'. %. #on&ersion *ubstantial interference wit $ or control and dominion over one3s possessory interest in c attel. An intentional e5ercise of dominion or control over a c attel$ w ic so seriously interferes wit t e rig t of anot er to control it t at t e actor may "ustly be re/uired to pay t e ot er t e full value of t e c attel. ! e tortuous deprivation of anot er3s property wit out is? er aut ori1ation or "ustification@ re/uires a wrongful ta.ing$ a wrongful detention$ an illegal assumption of owners ip$ or an illegal use of anot er3s property. 1. -nterference is so substantial t at re/uires payment for t e full value of c attel. ,. Loss is more permanent t an trespass to c attel. )earson v. Dodd# ) otocopying of documents$ w ic contain information not protected by property laws$ does not constitute conversion.

Factors in providing conversion# &1' duration of dominion and control$ &,' intent of t e D$ &=' D3s good fait $ &B' e5tent of t e resulting interference$ &;' e5tent of t e arm to c attel and &:' inconvenience and e5pense to owner. %ays to convert t e c attel# &1' stealing$ &,' damaging$ &=' using c attel &especially by a baileeI a person w o olds t e personal property of anot er for a specific purpose agreed to between t e parties'$ &B' obtaining possession from a t ief$ &;' wrongfully selling c attel$ &:' delivery of c attel to t e wrong person$ &J' refusing to return c attel to t e rig tful owner. 2, < ,,,A % at is t e difference between trespass to c attels and conversionA Bot trespass to c attel and conversion are intended to protect t e wrongful$ intentional interference of personal property. ! e difference$ owever$ is t e degree of possession t e interfering person as assumed. -f t e interfering person as merely c allenged t e rig t of possession$ t en t ere as been a trespass to c attel. -f t e interfering person$ owever$ as created a virtual Kforced saleK of t e property to imself$ t en t ere is conversion. For e5ample$ if someone steals property from you and you are able to recover t e property wit minimal or no damages$ t en you may ave a cause of action in trespass to c attel. -f$ owever$ t e same person steals t e property and sells it to anot er$ t en you will ave a cause of action in conversion. CH.= )rivileges 1. #onsent D w o as committed an intentional tort may prevent liability by proving t at t e ) consented to t e D3s conduct. ) consent must be .nowing and voluntary. Consent obtained t roug fraud is ineffective. -t is also ineffective if ) is mista.en about a material fact$ and D .nows of t e )3s mista.e. Consent induced by fraud or misrepresentation as to a collateral matter$ rat er t an fraud as to t e essential c aracter of t e act itself$ will not invalidate consent. 2, << ;;$ ;J !ypes of consent# 1. 85press# verbal or written contractual agreement occurs. ,. -mplied# -mplied t roug )3s conduct$ applying t e reasonable prudent person standard# would a reasonable prudent person in D3s position believe t e ) consented.

4edical care providers may act in t e absence of e5press consent if &1' t e patient is unable to give consent &unconscious$ into5icated$ mentally ill$ incompetent' &,' t ere is a ris. of serious bodily arm if treatment is delayed$ &=' a reasonable person would consent to treatment under t e circumstances$ and &B' t e p ysician as no reason to believe t is patient would refuse treatment under t e circumstances. *cope of consent D must stay wit in t e scope of consent. *cope of consent may be determined based on custom and circumstances of t e case. Consent to criminal acts -n t e ma"ority of "urisdictions$ consent to criminal acts is ineffective. -n a minority of "urisdictions$ consent to criminal act is effective even of it involves a breac of peace. 63Brien v. Cunard *.*. Co.# % ere consent is not e5pressed$ an individual may rely on t e ot er party3s be avior and overt acts in order to determine w et er t at party as consented to t e individual3s conduct. Hac.bart v. Cincinnati Bengals$ -nc.# An individual is liable for t e intentional stri.ing of anot er during a violent game$ w ere t e rules of t e sport pro ibit suc intentional acts. 4o r v. %illiams# A doctor$ w o as obtained t e patient3s consent for a specific operation$ may not perform anot er operation on t e patient wit out is? er consent. De 4ay v. 2oberts# An individual3s consent is not valid if t e individual would not ave consented$ but for a mista.en belief about a material aspect of t e conduct or transaction in /uestion.

2. 'elf(Defense 8very individual is privileged to use reasonable force to defend against t reatened battery by anot er. Amount of force allowed under selfIdefense is t at w ic is reasonably necessary to protect against arm$ w ic includes force w ic may cause serious bodily arm or deat . 1. 0ood fait belief# individual must reasonably believe t at use of force is necessary to protect against t reat of arm. ,. 4ista.e does not vitiate &impair' t e defense unless it is unreasonable. ! reat of arm must be imminent 1. Harm must be occurring or about to occur. ,. +o self defense is allowed for battery or arm t at as occurred in t e past. =. 6nce t e aggressor as retreated and t e t reat of arm is no longer imminent$ t e privilege terminates. &*elfIdefense does not allow for retaliation'. )rovocations 1. Derbal t reats alone do not "ustify t e use of selfIdefense. ,. )rovocations must be accompanied by t e use of p ysical force. 2etreat 1. 4inority# before using force t e party must retreat if e?s e can do so. ,. 4a"ority# An individual does not ave t e duty to retreat. 3. Defense of Ot$ers A person may use reasonable force to protect ot ers against imminent t reat of arm. 8ffect of mista.e# &1' 4a"orityI privilege only applies w ere t e t ird party imself would be allowed to use self defense. -f t e intervener is mista.en$ e or s e is liable for battery even if t e mista.e was reasonable$ &,' 4inorityI privilege to defend a t ird person applies so long as t e intervener reasonably believes t at force is necessary. 2easonable mista.es do not vitiate t e privilege. 4. Defense of )roperty

A person is privileged to use reasonable force to protect personal or real property. 2easonable force &only as muc force as appears necessary to protect t e property' does not include deadly force or force w ic causes serious bodily arm. 6ne may only use deadly force to &1' protect one3s own personal safety or t at of ot er3s on t e property$ &,' prevent t e commission of a crime$ or &=' in some states if D gives ) clear notice of danger. (at.o v. Briney# An owner of property may not protect is property from trespassers by use of direct or indirect force w ic may cause serious bodily in"ury or deat .

5. *eco&ery of )roperty 6ne may use reasonable force to recover c attel$ w ic as unlawfully been ta.e from im? er. 2easonable force does not include use of deadly force for recovery of property. )rivilege may be used only if t e original possessor3s possession of t e property is not interrupted# &1' w en t e wrongdoer is in t e process of ta.ing t e c attel or$ &,' s ortly after t e wrongdoer as ta.en t e property and t e rig tful owner?possessor is in ot pursuit of t e wrongdoer. * op.eeper3s )rivilege# merc ants ave t e rig t to detain$ for reasonable investigation$ an individual w om t ey believe to ave ta.en a c attel unlawfully. 8lements# &1' reasonable belief t at detainee as ta.en property and &,' reasonable time and manner of investigation. Hodgeden v. Hubbard# A person may use reasonable force to recover property w ic is fraudulently obtained from im. Bon.ows.i v. Arlan3s Department *tore# A merc ant$ w o reasonably believes t at an individual as stolen merc andise from is? er store$ may temporarily detain t e individual for a reasonable investigation of t e facts.

6. +ecessity -n tort common law$ t e defense of necessity gives t e state or an individual a privilege to ta.e or use t e property of anot er. A defendant typically invo.es t e defense of necessity only against t e intentional torts of trespass to c attels$ trespass to land$ or conversion. A court will grant t is privilege to a trespasser w en t e ris. of arm to an individual or society is apparently and reasonably greater t an t e arm to t e property. Unli.e t e privilege of selfIdefense$ t ose w o are armed by individuals invo.ing t e necessity privilege are usually free from any wrongdoing. )ublic necessity is t e use of private property by a public official for a public reason. ! e potential arm to society necessitates t e destruction or use of private property for t e greater good. ! e in"ured$ private individual does not always recover for t e damage caused by t e necessity. *urocco v. 0eary# An individual w o destroys anot er3s property in good fait $ and under apparent necessity of preventing furt er arm to t e community$ os not personally liable in an action by t e owner of t e property destroyed.

)rivate necessity arises w en an individual in"ures or damages t e property of anot er in order to prevent in"ury to imself or to is own property or t at of a t ird party because in t at way a bigger arm will be prevented. Alt oug t e law allows individuals t is privilege$ unli.e public necessity t e individual w o damages t e property of anot er is liable for t e damage caused. However$ t e individual is not liable for tec nical trespass. Dincent v. La.e 8rie !ransp. Co.# An individual w o damages t e property of anot er as a result of private necessity is liable for t e damage to t at individual3s property.

". Aut$ority of a, 6ne w o commits an action aut ori1ed by law is not liable in intentional torts. ! e difficulty wit t is privilege is to define t e scope of t e conduct t at is wit in t is privilege and$ to determine w et er t e conduct of t e defendant in /uestion was in fact one t at was aut ori1ed by law. Arrest falls wit in aut ority of law$ eit er by citi1en of police officer wit out a warrant$ for breac of peace or felony committed in t eir presence. -ndividual can also arrest if t ey ave a reasonable suspicion t at t e person committed t e crime. A regular citi1en$ unli.e a police officer$ as t e privilege 6+L7 if t e felony was in fact committed. %. Discipline ! ere are a number of relations w ic t e necessity of some orderly discipline gives person w o ave t e control of ot ers t e privilege of e5ercising reasonable force and restraint upon t em wit out liability. &i.e. parentIc ild$ teac erIstudent$ etcL' -. .ustification Custification can be used as a defense w ere a defendant3s conduct does not fall s/uarely wit in any ot er defense. Under t is defense$ t e circumstances surrounding t e defendant3s conduct will be loo.ed at and assessed in order to determine t e D acted reasonably in lig t of t e circumstances. Also$ t e court could loo. at D3s position of aut ority and alternatives t e D could ave c osen in determining t e reasonableness of is actions. *indle v. +ew 7or. City !ransit Aut roity# 2estraint or detention w ic is reasonable under t e circumstances$ imposed for t e purpose of preventing anot er from inflicting personal in"uries or property damage is not unlawful.

CH. B +egligence ! e tort of negligence occurs w en D3s conduct imposes an unreasonable ris. of arm on t e )$ and t e ) as been in"ured as a result. 1. Elements of #ause of Action 1. A DU!7 to use reasonable care. ! is is an obligation recogni1ed by t e law$ re/uiring t e actor to conform to a certain standard of conduct$ for t e protection of ot ers against unreasonable ris.s. ,. A B28ACH of duty is a failure to conform to t e re/uired standard. &Acted against is duty' =. CAU*A!-6+I A reasonably close casual connection between t e conduct and t e resulting in"ury. -nvolves two elements# &1' causation in fact and &,' pro5imate cause. B. Actual loss or DA4A08 resulting to t e interest of anot er. 2. A +e/li/ence Formula An individual cannot be eld liable for ris.s t at are not reasonably .nown to im. An individual is not liable if is conduct conforms to t e standard of care followed by t e reasonably prudent person# &1' % ere a person3s conduct fails to conform to t e reasonableness standard$ e may be liable even if t e ris. of arm is ig ly unli.ely$ &,' w ere a person uses a socially beneficial$ yet in erently dangerous instrument$ e must ta.e reasonable precautions so t e ris. of arm does not outweig t e utility of t e instrument$ &=' w ere t e burden of certain conduct$ outweig s t e ris.s$ no liability attac es. 2-*(* 4U*! B8 8DALUA!8D A* D-8%8D A! !H8 !-48 A! %H-CH !H87 6CCU228D.

< ,91 Unreasonableness@ How Determined@ 4agnitude of 2is. and Utility of Conduct % ere an act is one in w ic a reasonable man would recogni1e as involving a ris. of arm to anot er$ t e ris. is unreasonable and t e act is negligent if t e risk is of such magnitude as to outweigh w at t e law regards as t e utility of the act or of t e particular manner in which it is done. Lubit1 v. %ells# An individual cannot be eld liable in negligence for ris.s t at are not reasonably .nown to im. Alt oug some ob"ects li.e a gun are in erently dangerous t at it is negligent to leave t em lying around wit out special andling$ ot er ob"ects li.e golf clubs pose less of a danger and it is not negligent to leave t em around even if it turns out t at$ une5pectedly$ t ey caused arm. ! e ris. is to be evaluated as it reasonably seemed before t e accident. Blyt v. Birming am %aterwor.s# An individual is not negligent if is? er conduct and precautions conform to t e standard followed by a prudent or reasonable person. 0ulf 2efining Co. v. %illiams# An individual may be liable in negligence even if is? er conduct creates a ris. of arm w ic is ig ly improbable and unli.ely. C icago$ B. M N.2. Co. v. (rayenbu l# An individual using a socially beneficial yet in erently dangerous instrument$ must ta.e reasonable precautions suc t at t e ris. of in"ury posed by t e instrument does not outweig its utility. Davison v. *no omis County# A county is not negligent for falling to build safety railing w ere t e construction of suc railing would create an undue burden on t e county and prevent construction of ot er roads. United *tates v. Carroll !owing Company# Learned and !alancing Test" -f ) &probability of t e problem arising' 5 L &t e gravity of resulting in"ury' O B &t e burden of ade/uate precautions' P liability e5ists. 4eaning$ t e degree of care demanded of a person by an occasion is t e resultant of t ree factors# t e li.eli ood t at t e conduct will in"ure ot ers$ ta.en wit t e seriousness of t e possible in"ury$ and balanced wit t e interest w ic e must sacrifice to avoid t e in"ury. Basically$ if t e li.eli ood of arm and t e in"ury t at arm can cause are greater t an t e costs of precaution$ t ose precautions must be ta.en. An individual may be liable for failing to ta.e reasonable precaution against great ris. of in"ury even w ere t e probability of in"ury occurring is very little.

3. T$e 'tan!ar! of #are 6ur negligence system focuses on t e actor3s level of care in carrying out t e activity$ a defendant w o engages in a fairly safe activity but does so negligently is li.ely to be liable for damages. 0A1 T$e *easona2le )ru!ent )erson 6b"ective standard# % at would t e average reasonable person of ordinary prudence under similar circumstancesA E%ould a reasonable person of ordinary prudence$ in t e position of t e defendant$ ave conducted imself as t e defendant didAF Daug an v. 4enlove# ! e standard of care used to determine negligence is t at of t e reasonable prudent person in similar circumstances and not t e good fait or sub"ective standard ad ered to by t e D. &fire started by ay ric.' Delair v. 4cAdoo# A reasonable driver of an automobile s ould be c arged wit t e .nowledge t at driving wit warn tires poses a danger to t e ot er individuals on t e road. !rimarco v. (lein# 8vidence of custom$ common usage$ and practice$ alt oug compelling$ may not be used as t e compelling test of negligence. Cordas v. )eerless !ransportation Co.# ! e conduct of an individual w o is in an emergency situation is not measured by t e standard of care of a reasonable person in a nonIemergency

situation. ! e law does not old one in an emergency to t e e5ercise of mature "udgment re/uired of im under circumstances w ere e as an opportunity for deliberate action. 2oberts v. *tate of Louisiana# -n determining t e negligence of an individual$ t e court must ta.e into consideration t e p ysical attributes or s ortcomings of t e individual to determine w et er an individual as ta.en reasonable care in is? er conduct. -n ot er words$ we ave to as. ourselves ow an average$ reasonable$ person wit t e same andicap$ would conduct imself in t e same circumstance. 2obinson v. Lindsay# A minor c ild engaged in t e operation of mac inery ordinarily used by adults is eld to an adult standard of care. Breunig v. American Family -ns. Co.# -nsanity is not a defense to negligence conduct w ere t e defendant ad prior warning and .nowledge of is? er insanity. 0B1 T$e )rofessional

)rofessionals are usually eld to a ig er standard of care$ t e standard of care of t e ordinary prudent person wit s.ill and .nowledge t at is commonly eld by professionals in t e community. Heat v. *wift %ings$ -nc.# A professional3s negligence is not determined based on t e degree of ordinary care and caution e5ercised by professionals aving t e same e5perience and training. Hodges v. Carter# An attorney w o as acted in good fait and in t e best interests of is client is not liable in negligence for mere error in "udgement. Boyce v. Brown# -n a medical malpractice case$ t e plaintiff must prove t e standard of care in t e medical community and t at t e defendant3s conduct departed from t is standard. 4orrison v. 4ac+amara# ! e conduct of ealt professionals w o are certified t roug a system of national board certification must be measured against nationally accepted standards of care$ as opposed to local standards of care. *cott v. Bradford# A p ysician is liable in negligence if e does not inform t e patient of is options and its attendant ris.s before treating t e patient. -f treatment is completely unaut ori1ed and performed wit out any consent at all$ t ere as been a battery. However$ if t e p ysician obtains a patient3s consent but as breac ed is duty to inform$ t e patient as a cause of action sounding in negligence for failure to inform t e patient of is options$ regardless of t e due care e5ercised at treatment$ assuming t ere is in"ury. For medical malpractice actions# patient must s ow# &1' D failed to inform im ade/uately of a material ris. before securing is consent to t e proposed treatment$ &,' if e ad been informed of t e ris.s e would not ave consented to t e treatment$ &=' t e adverse conse/uences t at were not made .nown did in fact occur and e was in"ured as a result of submitting to t e treatment. 4oore v. ! e 2egents of t e University of California# -n order to satisfy is fiduciary duty to t e patient and obtain t e patient3s consent$ a p ysician w o is see.ing a patients consent for a medical procedure must disclose is own personal interests &i.e. researc or economic'$ unrelated to t e patient3s ealt $ t at may affect t e patient3s decision. Failure to disclose suc interests may give rise to a cause of action for performing medical procedures wit out informed consent or breac of fiduciary duty.

+ote# ! e professional contracts to render services$ but t e suit is usually in t e tort for damage caused by negligence. ! ere is no need to contract specifically to e5ercise t e normal s.ill of t e professionalI t e law imposes t e duty. 0#1 A//ra&ate! +e/li/ence Degrees of care# ! e care re/uired by t e standard of t e reasonable person varies according to t e ris.. As t e danger increases$ t e actor is re/uired to t e e5ercise caution proportionate to it. ! ose w o deal wit t ings t at are more dangerous$ suc as e5plosives or electricity$ must e5ercise more care t an one w o is

wal.ing down t e street. Li.ewise$ t ose w o ave accepted a special responsibility towards ot ers$ must e5ercise more care in accordance wit t e duty underta.en. Degrees of +egligence# *lig t negligenceI failure to use great care$ ordinary careI failure to use reasonable care$ and gross negligenceI failure to use even slig t care. ! ese ave largely lost t eir significance t oug . %illful$ wanton$ rec.less conduct# ! is type of conduct is defined as consisting of a deliberate and conscious disregard for a .nown ig degree of probability of arm to anot er. 4. *ules of a, +egligence standards of care are not ordinarily determinate as a rule of law. 2at er$ t e standards are sub"ective$ based on t e e5igencies of eac situation. -n !altimore # $hio %. &o. v. 'oodman$ Custice Holmes concluded t at one standard ad to be set out to be used by all courts$ but is rule was too strict and infle5ible to be used in all cases. He as said t at if a driver wanted to cross over railroad trac.s$ e must first stop is ve icle$ loo. down t e trac. and if necessary get out of is ve icle for an additional loo.. -n (akora$ owever$ t e court decided t at was too infle5ible. )o.ora v. %asbas 2y. Co.# An automobile driver w o is crossing over t e railroad trac.s does not$ under all circumstances$ ave t e absolute legal duty to stop t e car and loo. for oncoming trains.

5. 3iolation of 'tatute *ometimes t e legislature passes a statute t at appears to define reasonable conduct in a certain .ind of situation. A court may treat t e violation of suc legislation as negligence per se. ! e negligence per se doctrine is t e general rule t at w en a safety statute as a sufficiently close application to t e facts of t e case at and$ an une5cused violation of t at statute is negligence per se$ and t e D will not be allowed to s ow t at t e legislature set an unduly ig standard of care. ! ree re/uirements for application of negligence per se# 1. D violated a *tatute ,. t e statute was designed to protect against t e same type of accident t at D3s conduct caused@ and =. t e accident victim falls wit in t e class of persons t at t e statute was designed to protect. 6sborne v. 4c4asters# An individual w o breac es a duty imposed on im by statute is liable for in"uries to t ose w om t e statute is designed to protect if t e in"uries resulted from t e breac . % ere a statute or ordinance imposes upon any person a specific duty to for t e protection of ot ers$ if e neglects to perform t e duty e is liable to t ose w ose protection or benefit it as imposed for any in"ury$ w en caused pro5imately. 0A1 Applica2ility of 'tatute *tac niewic1 v. 4arICam Corp.# A violation of a statute or regulation constitutes negligence per se w en t e violation results in in"ury to a member of t e class of persons protected by t e statute or regulation and w en t e arm is of t e .ind w ic t e statute or regulation is designed to prevent. +ey v. 7ellow Cab Co.# A plaintiff w o bases is claim for negligence on a defendant3s violation of a statute$ must prove t at is in"uries were directly and pro5imately caused by t e defendant3s violation of t e statute. -4)62!A+! !824*# I -ntervening cause# Also .nown as Esupervening$F t at cause w ic comes into active operation in producing t e result after t e negligence of t e defendant. A separate act or

omission t at brea.s t e direct connection between t e defendant3s actions and an in"ury or loss to anot er person$ and may relieve t e defendant of liability for t e in"ury or loss. I )ro5imate cause# ! e type of cause w ic in natural and continuous se/uence unbro.en by any new independent cause produces an event$ and wit out w ic t e in"ury would not ave occurred. -t is an event sufficiently related to a legally recogni1able in"ury to be eld t e cause of t at in"ury. )erry v. *.+. and *.+.# A c ild abuse reporting statute does not create civil liability for one w o fails to report abuse.

+ote# ! e court must decide w et er a criminal statute can be used as a standard of care in a tort suit. -n doing so$ t e court determines t e same two t ings as in negligence per se. 0B1 Effect of 'tatute 4artin v. Her1og# )roof of negligent conduct$ wit out a s owing of casual connection between t e conduct and in"ury suffered$ is not enoug to impose liability on t e party w ose conduct was negligent. 6ne w o violates a statute imposing a standard of care as fallen below t at standard$ and t erefore is negligent. However$ for t is negligence to be actionable a ) w o as suffered an in"ury because of t e violation must prove t at is? er in"ury was caused by t e violation. Qeni v. Anderson# ! e violation of a statute w ic is found to apply to a particular set of facts creates a presumption w ic can be rebutted by a s owing of an ade/uate e5cuse or "ustification for a violation of t e statute. )ossible e5cuses# violation is reasonable because of t e actor3s incapacity$ neit er .nows nor s ould .now of t e occasion for compliance$ e is unable after reasonable diligence or care to comply$ confronted by an emergency not due to is own misconduct$ compliance would involve a greater ris. of arm to t e actor or ot ers. 2, < ,>>A.

6. )roof of +e/li/ence ) as t ree burdens of proof on t e issue of negligenceI t e burden of pleading$ t e burden of coming forward wit enoug evidence to avoid a directed verdict against im$ and if e urdles t at$ t e burden of persuading t e trier of fact to find in is favor. 0A1 #ourt an! .ury4 #ircumstantial E&i!ence Circumstantial evidence as been defined as Eevidence of one factLfrom w ic t e e5istence of t e fact to be determined may reasonably be inferred. -t involves in addition to t e assertions of witnesses as to w at t ey ave observed$ a process of reasoning$ or inference$ by w ic a conclusion is drawn.F Function of "udge and "ury# Bot t e "udge and "ury play a significant role in t e ad"udication of a negligence case. ! e "udge decides all /uestions of law$ meaning$ t at t e "udge will decide w et er reasonable people could differ as to t e facts of t e case$ if t e "udge decides t ey could$ e?s e will ma.e it a "ury /uestion. ! e "udge will also determine w at t e D3s duty to t e ) was. Finally$ t e "udge may remove t e case from t e "ury by directing t e verdict. ! e "ury is t e finder of facts. ! at means if reasonable persons may differ as to t e facts t e "ury must determine &1' w at appened and &,' t e particular standard of care &w et er t e facts as found indicate t at t e defendant breac ed is duty of care to t e ) in a way t at pro5imately caused t e )3s in"ury'. 0oddard v. Boston M 4aine 2.2. Co.# -n a negligence action$ in order to avoid a directed verdict$ t e plaintiff must provide sufficient evidence from w ic reasonable "urors could infer t at t e defendant was engaged in negligent conduct and t at is negligence caused t e plaintiff3s in"ury. An"ou v. Boston 8levated 2ailway Co.# A directed verdict in favor of t e defendant is not appropriate w ere t e plaintiff as presented evidence sufficient to support an inference of negligence on t e part of t e defendant. ! e banana peel was dar. in color and gritty in te5ture$

t erefore it could be inferred t at t e peel ad been t ere for a w ile and not "ust dropped by anot er passenger and if t e D3s employee ad e5ercised reasonable care$ t ey would ave pic.ed up t e banana peel. Coye v. 0reat Atlantic and )acific !ea Co.# Actual or constructive .nowledge of a dangerous condition$ establis ed t roug direct or circumstantial evidence$ must be proven to impose liability for in"uries caused by t e condition. 6rtega v. (mart Corp.# A storeowner owes its patrons a duty to e5ercise a reasonable care in .eeping t e premises reasonably safe. !o impose liability for in"uries suffered by an invitee due to a a1ardous condition$ t e plaintiff must s ow t at t e defendant ad eit er actual or constructive .nowledge of t e dangerous condition$ or s ould ave been able to discover t e a1ardous condition by t e e5ercise of ordinary care. A a1ardous condition is one t at poses an unreasonable ris. to invitees on t e premises. Cas.o v. F.%. %oolwort Co.# A plaintiff need not prove defendant3s notice of t e dangerous condition w ic as caused er in"uries$ w en t e dangerous condition is one w ic is continuous and easily foreseeable. H.8. Butt 0roc. Co. v. 2esende1# -n order to recover$ t e defendant needed to prove actual or constructive .nowledge of a dangerous condition$ t at t e condition posed an unreasonable ris. of arm$ t at t e plaintiff did not e5ercise reasonable care to mitigate t e ris.$ and t at t e failure to use suc care pro5imately caused in"ury. 0B1 *es Ispa o5uitur

%es ipsa lo)uitur is a common law t eory on t e use of circumstantial evidence in tort liability on a negligence t eory. ! e term comes from Latin and means Kt e t ing itself spea.s$K but is more often translated Kt e t ing spea.s for itself.K ! is t eory allows t e ) to point to t e fact of t e accident and to create an inference t at$ even wit out a precise s owing of ow t e D be aved$ t e D was probably negligent$ it ma.es t e )3s tas. significantly easier. ! e t eory allows t e plaintiff to use circumstantial evidence to meet t e burden of proof in negligence cases for only t e first two elements# duty and breac . )roving t ese two elements means t at$ in fact$ t e defendant was negligent. However$ t e plaintiff must still prove$ by a preponderance of t e evidence$ t at t e defendantHs negligence was t e causeIinIfact of t e arm and t e pro5imate cause of t e arm before e can recover from t e defendant. ! e 2estatement &! ird' of !orts$ < 1J describes a two step process for establis ing res ipsa lo/uitur. ! e first step is &1' w et er t e accident is t e .ind t at would usually be caused by negligence$ and t e second is &,' w et er or not t e defendant ad e5clusive control over t e instrumentality t at caused t e accident. -f found$ res ipsa lo/uitur creates an inference of negligence. Byrne v. Boadle# A plaintiff need not provide evidence of negligence on t e part of t e D w en t e mere fact of t e accident or in"ury aving occurred is evidence of negligence of t e D. 4cDougald v. )erry# 2es ispa lo/uitur provides an inference of negligence w en t e accident is t e type t at does not occur wit out a negligence and t e defendant is in control of t e circumstance. Larson v. *t. Francis Hotel# ! e doctrine of res ipsa lo/uitur does not apply in a case w ere t e plaintiff3s in"ury could be attributable to more t an one cause$ some of w ic are not wit in t e e5clusive control and management of t e defendant. A otel as does not ave e5clusive control$ eit er actual or potential$ of its furniture. ! e guests ave at least partial control. 7barra v. *pangard# 2es ispa lo/uitur may apply to situations w ere more t an one D is t e cause of t e )3s in"ury and t e various instrumentalities w ic caused t e plaintiff3s in"uries were in control of t e D in /uestion. *ullivan v. Crabtree# % ere a ) establis es t e prima facie case for defendant3s negligence based on res ispa lo/uitur$ t e court must not always as a matter of law enter a verdict for t e ). ! e truc. rec. could be due to &1' drivers negligence or &,' no fault of is own$ t oug t an

unavoidable accident cased by t e brea.s failing or some ot er mec anism in t e tric. failing to wor. properly. *ince bot inferences are possible from t e information in t is case$ it is proper t at a "ury s ould decide t e issue of negligence.

CH. ; Causation in Fact. 1. 'ine 6ua +on -n order to prove t at a defendant caused t e plaintiff3s in"ury$ t e plaintiff must prove two separate aspects of causation. ! e first is .nown as causation in fact$ also called Ebut forF causation or sine /ua non. ! e plaintiff must show that the in*ury would not have occurred without the defendant+s negligent conduct . A defendant3s negligence may be t e cause of an in"ury if it is a substantial factor in causing t e arm. A mere suspicion t at a party was t e cause of an accident is insufficient. ! ere must be some actual evidence t at t e party was negligent.

)er.ins v. !e5as and +ew 6rleans 2y. Co.# +egligence is t e cause in fact of in"ury to anot er if it is a substantial factor in causing t e arm. 7ou cannot sue for negligence unless suc negligence was an actual cause of t e arm. +egligence is an actual cause if it was a substantial factor in bringing about t e arm.

2. )roof of #ausation % ere a defendant3s negligence greatly increases t e c ance of an in"ury$ t e possibility t at t e accident could ave occurred wit out t e negligence does not brea. t e c ain of causation. ! e ) bears t e burden of proving t at t e D actually caused t e in"ury$ "ust a s e must bear t e burden of proving t e ot er parts of is prima facie case by preponderance of t e evidence. 2eynolds v. !e5as M )ac 2y. Co.# % ere t e negligence of a defendant greatly increases t e c ances of an accident giving rise to t e plaintiff3s in"ury$ t e possibility t at t e accident could ave appened wit out t e negligence does not brea. t e c ain causation. 0entry v. Douglas Hereford 2anc $ -nc.# 8vidence t at defendant3s conduct was a cause in fact of t e accident must be offered to ma.e a negligence case. (ramer *ervice$ -nc. v. %il.ins# -n order to impose liability on a D$ it is not sufficient t at t e ) prove t at t e D3s negligence and t e )3s in"ury coIe5isted or t at t e in"ury came after t e negligent conduct of t e D. Hers.ovits v. 0roup Healt Cooperative of )uget *ound# An action in a negligence can be maintained w ere probable reduction in t e decedent3s c ance for survival can be proven$ even t oug t e decedent would not ave lived to normal life e5pectancy. Daubert v. 4errell Dow ) armaceuticals$ -nc.# ! e Federal 2ules of 8vidence do not re/uire Egeneral acceptanceF of a scientific tec ni/ue in t e scientific community as an absolute prere/uisite to admissibility of e5pert witness testimony.

3. #oncurrent #auses % ere two separate acts of negligence combine to cause an in"ury to a t ird party$ eac actor is liable$ even t oug t e in"ury would not ave appened but for t e negligence of t e ot er actor. -nclusive as t e Ebut forF test is$ it nonet eless rules out one .ind of cause w ic t e courts ave generally eld does constitute a true cause in fact. ! is is t e situation w ere two events concur to cause arm$ and either one would ave been sufficient to cause substantially t e same arm wit out t e ot er. !o provide for t is case$ it is generally

stated t at eac of t ese concurring events is a cause of t e in"ury$ insofar as it would ave been sufficient to bring t at in"ury about. *ubstantial factor standard# % ere eac of t e two events would ave been sufficient by itself to bring about t e arm$ t e test for eac event is often said to be w et er it was a substantial factor in bringing about t e arm. -f so$ t at arm is a cause in fact. Hill v. 8dmonds# % ere separate acts of negligence combine to produce a single in"ury$ eac tortfeasor is liable for t e entire result even t oug is act alone may not ave caused t e result. Anderson v. 4inneapolis$ *t. ). M *. *t. 4. 2.2. Co.# % ere a plaintiff is in"ured by t e negligent conduct of more t an one tortfeasor$ eac is independently liable if it was a substantial factor in bringing about t e plaintiff3s in"ury.

4. )ro2lems in Determinin/ ,$ic$ )arty #ause! t$e 7arm *ummers v. !ice# % ere defendants are negligent toward t e plaintiff$ but only one defendant3s negligence as caused t e plaintiff3s in"ury$ t e plaintiff may recover from bot defendants even t oug t e plaintiff is unable to s ow w ic defendant actually caused t e plaintiff3s in"ury. -n t at case$ eac defendant as t e burden to proof e did not cause t e in"ury. *indell v. Abbott Laboratories# % ere more t an two defendants ave negligently produced a drug causing t e plaintiff3s in"ury$ t e latter may recover from t e defendants even t oug t e plaintiff does not prove w ic defendant3s drug was t e direct cause of t e plaintiff3s in"ury. ! e mar.et s are t eory# -f ) cannot prove w ic of t e t ree or more persons caused t e in"ury$ but can s ow all were negligent &or produced a defective product'$ t e court may cast upon eac D t e burden to proving t at e did not cause t e in"ury. -f a given member of t e class of D3s is unable to prove t at e did not cause t e in"ury$ t e court may well re/uire im to pay t at percentage of t e )3s in"ury w ic t e D3s sales of t e product bore to t e total mar.et sales of t at type of product.

CH. : )ro5imate or Legal Cause -n addition to proving causation in fact$ a plaintiff must s ow t at t e defendant3s conduct was t e pro5imate cause of t e in"ury. )ro5imate cause re/uires a natural se/uence$ unbro.en by intervening causes$ t at results in some in"ury. A pro5imate cause is an event sufficiently related to a legally recogni1able in"ury to be eld t e cause of t at in"ury. Atlantic Coast Line 2. Co. v. Daniels# Courts s ould not set rigid limitations in defining pro5imate cause as a basis of liability.

1. 8nforeseea2le #onse5uences A defendant is liable only for t e ordinary and natural results of is negligent conduct. ! e foreseeability of t e conse/uences of a defendant3s actions depend on t e balancing between t e li.eli ood of ris. and t e magnitude of damages flowing t erefrom. 2yan v. +ew 7or. Central 2.2. Co.# A defendant is only liable for t e ordinary and natural results of is negligent conduct. ! e action cannot be sustained$ for t e reason t at t e damages incurred are not t e immediate but t e remote result of t e negligence of t e Ds. ! e immediate result was t e destruction of t eir own wood and s eds$ beyond t at$ it was remote. Bartolone v. Cac.ovic # A D must ta.e a ) as e finds im and is liable to t e plaintiff in damages for t e aggravation of plaintiff3s preIe5isting illness due to t e defendant3s negligent conduct.

-n re Arbitration Between )olemis and Furness$ %it y M Co.$ Ltd.# % ere it is reasonably foreseeable t at t e defendant3s negligent conduct would cause damages to t e plaintiff$ t e defendant is liable even t oug t e e5act e5tent of t e damages is not foreseeable. -f t e act would or mig t probably cause t e damage$ t e fact t at t e damage it in fact causes is not t e e5act .ind of damage one would e5pect$ is immaterial$ so long as t e damage is in fact directly traceable to t e negligent act$ and not due to t e operation of independent causes aving no connection wit t e negligent act$ e5cept t at t ey could not avoid its results. 6verseas !an.s ip &U.(.' Ltd. v. 4orts Doc. M 8ngineering Co.$ Ltd. E%agon 4ound +o. 1F# A defendant is not liable for unforeseeable conse/uences of is negligent conduct$ even t oug t ey were t e direct result of defendant3s conduct. E-t does not seem consonant wit our current ideas of "ustice or morality t at for an act of negligence$ owever slig t or venial$ w ic results in some trivial unforeseeable damage t e actor s ould be liable for all conse/uences$ owever unforeseeable and owever grave$ so long as t ey can be said to be direct.F 6verseas !an.s ip &U.(.' Ltd. v. 4iller *teams ip Co. E%agon 4ound +o. ,F# ! e foreseeability of t e conse/uences of a defendant3s actions depend on t e balancing between t e li.eli ood of ris. and t e magnitude of damages flowing t erefrom. )alsgraf v. Long -sland 2.2. Co.# &Cardo1o' A defendant owes a duty of care only to t ose plaintiffs w o are in t e reasonably foreseeable 1one of danger. Q6+8 6F F628*88AB-L-!7 &Andrews$ dissenting' % ere an act t reatens t e safety of ot ers$ t e doer is liable for all its pro5imate conse/uences$ even w en t e in"ury is to one w o would generally be t oug t to be outside t e radius of danger. U+B26(8+$ +A!U2AL *8NU8+C8 6F 8D8+!* 7un v. Ford 4otor Co.# % en t e court determines t at an in"ury was not reasonably$ foreseeably caused by t e defendant$ t e issue of pro5imate cause may be ta.en away from t e "ury. % ere concurrent forces are involve$ t e manufacturer of a defective product may negate strict liability upon a s owing of an intervening$ superseding cause or t e e5istence of anot er sole pro5imate cause of is own in"uries.

!o test for forseeability# 1. As. I w at was t e negligenceA -n )alsgraff$ t e negligence was t e L-22 employee pus ing t e passenger and causing im to drop t e bo5. ,. As. I w at was t e ris. created from t at negligenceA -n )alsgraff$ t e ris. from pus ing t e passenger was t at t e passenger imself could ave been urt if t e pus was really ard or t at t e employeeHs pus could cause damage to t e contents of t e bo5 t at t e passenger was olding. =. As. I was t e in"ury t at occurred a result of t e ris. t at was created from t at negligenceA -n )alsgraff$ t e arm was not wit in t e scope of t e ris. &see above'. ! us$ it was not foreseeable. )us ing someone on to a train wit a pac.age in t eir and does not create a ris. t at a bystander will be urt by an e5plosion. L-22 only would ave been liable for damage to t e passenger w o was pus ed on t e train and possibly for t e contents of t e pac.age t at was dropped. ! at$ owever$ would not be t e same result if )olemis was usedI t e direct causation & indsig t' view olds t at t e D is liable for all conse/uences of er negligent act$ provided t at t ese conse/uences are not due in part to a superseding intervening cause &Andrews view was nebulous test'. 2. Inter&enin/ #auses

A separate act or omission t at brea.s t e direct connection between t e defendantHs actions and an in"ury or loss to anot er person$ and may relieve t e defendant of liability for t e in"ury or loss. An intervening cause relieves a defendant of liability only if it would not ave been foreseeable to a reasonable person$ and only if damage resulting from t e defendantHs own actions would not ave been foreseeable to a reasonable person. *ome "urisdictions use two terms to define t e intervening cause doctrine# intervening cause and superseding cause. -n t ese "urisdictions intervening cause describes any cause t at comes between a defendantHs conduct and t e resulting in"ury$ and an intervening cause t at relieves a defendant of liability is called a superseding cause. 6t er "urisdictions do not use t e term superseding cause. ! ese "urisdictions simply as. w et er t e intervening cause is sufficient to relieve a defendant of liability. All "urisdictions differentiate between an intervening cause t at relieves a defendant of liability and one t at does not# t e only difference is in t e terminology. Derdiarian v. Feli5 Contracting Corp.# % ere t e act of a t ird party intervenes between t e defendant3s negligent conduct and t e plaintiff3s in"ury$ t e casual connection is not severed if t e intervening act is a normal and foreseeable conse/uences of t e ris. created by t e defendant3s negligent conduct. An intervening act may not serve as a superseding cause$ and relieve an actor of responsibility w ere t e ris. of t e intervening act occurring is t e very same ris. w ic renders t e acto negligent. %atson v. (entuc.y M -ndiana Bridge M 2.2. Co.# A negligent defendant is not liable for t e intentional intervening malicious acts of a t ird party w ic are not reasonably foreseeable. ! e mere fact t at t e concurrent cause or intervening act was unforeseen will not relieve t e D guilty of t e primary negligence from liability$ but if t e intervening agency is somet ing so une5pected or e5traordinary as t at e could not or oug t not to ave anticipated it$ e will not be liable$ and certainly e is not bound to anticipate t e criminal acts of ot ers by w ic damage is inflicted and ence is not liable t erefore. Fuller v. )reis# An act of suicide is not$ as a matter of law$ a superseding cause in negligence law w ic precludes liability of t e initial tortfeasor. 4cCoy v. American *u1u.i 4otor Corp.# ! e rescue doctrine may be invo.ed in product liability actions and$ if it is$ t e rescuer is re/uired to s ow t e defendant pro5imately caused is in"uries. ! is means t e rescuer is allowed to sue t e party w ic caused t e danger re/uiring t e rescue in t e first place$ but t e ) must s ow t e D pro5imately caused is in"uries.

8ssentially$ in its pure form t e 2escue Doctrine boils down to B main elements I all of w ic must be met in order to bring it to bear for t e person asserting its privilege. 1. ! ere must be peril or t e appearance of peril to a t ird party$ caused by t e defendant. ,. ! at peril or appearance of peril must be imminent =. A reasonable person would recogni1e t e peril or appearance of peril and t e plaintiff must also ave actually recogni1ed it. B. ! e plaintiff must ave e5ercised reasonable care in effecting t e rescue. +ote# 6ne w o fails in is duty to remedy a defective or dangerous condition is liable for t e in"uries resulting t erefrom$ alt oug t e immediate cause of t e in"ury is an act of 0od. Dependent vs. -ndependent intervening causes# A dependent intervening cause is set in motion by t e DHs own conduct$ and will not relieve t e D of liability unless it is e5traordinary. For e5ample$ suppose t e D po.ed an associate in t e c est during a friendly discussion around a watercooler$ and t e associate subse/uently "umped out a window. ! is unusual reaction may be deemed an e5traordinary intervening cause t at relieves t e D of liability.An independent intervening cause arises t roug no fault of t e defendant. -t relieves a D of liability unless it was foreseeable by t e defendant.

3. )u2lic )olicy (elly v. 0winnell# A ost is liable for t e negligence of an adult social guest w o as become visibly into5icated at t e ost3s ome$ and w ere ris. of arm to ot ers is foreseeable. &! e great weig t of aut ority supports t e view t at in t e case of an ordinary ableIbodied man$ it is t e consumption of t e alco ol$ rat er t an t e furnis ing of t e alco ol w ic t e pro5imate cause of any subse/uent occurrence.' 8nrig t v. 8li Lilly M Co.# An in"ury to a mot er$ w ic results in in"uries to later conceived c ild$ does not establis a cause of action in favor of t e c ild against t e original tortfeasors.

4. '$iftin/ *esponsi2ility %e ave encountered several situations w ere t e D acts negligently$ and is negligence or ot er wrongdoing of t ird persons$ in combination produces t e )3s in"ury. ! ose are situations in w ic t e D will be allowed to say$ in effect$ t at responsibility for t e dangerous conditions created in part by er as passed to t at t ird person$ absolving t e D of responsibility. ! at is$ t e responsibility is to be Es ifted.F Difference between cause in fact and pro5imate cause# cause in fact is w at actually caused t e in"ury &i.e. in )alsgraf$ it would ave been t e pac.age e5ploding'. However$ pro5imate cause loo.s at t e natural se/uence of events or 1one of foresseability &w ic ever t e "urisdiction uses'. ! e distinction between cause in fact and pro5imate or legal cause is not merely on e5ercise in semantics. ! e terms are not interc angeable. Cause in fact refers to t e cause and effect relations ip between t e D3s tortuous conduct and t e )3s in"ury or loss. ! us cause in fact deals wit t e but for conse/uences of an act. ! e D3s conduct is a cause of t e event if t e event would not ave occurred but for t at conduct. -n contrast$ pro5imate cause or legal cause concerns a determination of w et er legal liability s ould be imposed w ere t e cause in fact as been establis ed. )ro5imate or legal cause is a policy decision made by t e legislature or t e courts to deny liability for ot erwise actionable conduct based on considerations of logic$ common sense$ policy$ precedent and Rour more or less e5pressed ideas of w at "ustice demands or of w at is administratively possible or convenient.3 CH. J Coint !ortfeasors Coint tortfeasors are two or more persons w ose negligence in a single accident or event causes damages to anot er person. -n many cases t e "oint tortfeasors are "ointly and severally liable for t e damages$ meaning t at any of t em can be responsible to pay t e entire amount$ no matter ow une/ual t e negligence of eac party was. Under several liability$ eac tortfeasor pays no more t an is apportioned s are$ and t e in"ured party bears t e loss of any uncollectible s are. *ome courts ave found t at t e public policy reasons for re/uiring tortfeasors rat er t an in"ured persons to bear t e burden of t e uncollectible portions of damages continue to control even wit t e adoption of comparative negligence. -f more t an one person is a pro5imate cause of t e )3s arm$ t e arm is indivisible$ t en under t e traditional common,law rule$ eac defendant is liable for t e entire arm. ! e liability is said to be "oint and several. &4eaning t e ) can sue and collect from eit er of t em or bot of t em.' ! ree types of factual situations t at create "oint and several liability# &1' tortfeasor acted in concert$ &,' D3s failed to perform a common duty to t e )$ &=' D3s w o acted independently to cause an indivisible arm. 1. ia2ility an! .oin!er of Defen!ants

Coinder is t e "oining of parties as defendants in a suit$ it is permitted w ere t e D3s acted in concert$ w en t e D3s acted independently to cause t e same arm and even w en t e D3s acted toget er to cause different arms.

Bierc1yns.i v. 2ogers# !wo parties w o engage in an illegal car race are wrongdoers acting in concert and t us are "ointly liable for in"uries to a t ird person regardless of w ic party directly inflicted t e in"ury or damage upon t e t ird person. Coney v. C.L.0. -ndustries$ -nc.# ! e doctrine of comparative negligence does not eliminate "oint and several liability. Comparative negligence does apply to product liability torts. KS-f t e court were toT eliminate "oint and several liability as t e defendant advocates$ t e burden of t e insolvent or immune defendant would fall on t e plaintiff@ in t at circumstance$ plaintiffHs damages would be reduced beyond t e percentage of fault attributable to im$K and t us "oint and several liability remains under comparative negligence. Bartlett v. +ew 4e5ico %elding *upply$ -nc.# -n a comparative negligence *urisdiction$ a concurrent tortfeasor is not "ointly and severally liable for t e entire amount of t e plaintiff3s "udgment$ t ey are only liable for t eir percentage of culpability in terms of damages.

2. 'atisfaction an! *elease A ) may bring a series of separate actions against D3s liable for t e same damage and ta.e eac to "udgment so long as e only collects on one. ! ere can be only one full satisfaction$ if t ere is partial satisfaction$ it must be credited to t e ot er parties w o are also liable. *atisfaction of "udgment is paying off t e sum ordered in a court "udgment or fulfillment of all obligation under it. A ) w o as a possible cause of action against two or more D3s$ may settle wit one w ile pursuing a law suit against t e remainder. Until recently$ settling wit one$ meant releasing t e ot er D3s as well. ! is rule was t e product of t e common law fiction t at a ) ad only one$ indivisible cause of action against all "oint tortfeasors$ and it could not be e5tinguis ed as to one and alive as to t e ot ers. 2elease is basically liberation from t e obligation or duty to pay claim. Bundt v. 8mbro# A party w o as suffered an indivisible arm by negligence of several parties in not entitled to more t an one satisfaction for t e same arm. Co5 v. )earl -nvestment Co.# A contract between one tortfeasor and t e plaintiff$ w ere t e parties intend to reserve to t e plaintiff t e rig t to sue t e coItortfeasor$ does not release t e coItortfeasor from liability. 8lbaor v. *mit # 4ary Carter agreements &a ( by w ic one or more but not all coID3s settle wit t e ) and obtain a release$ along wit a provision granting t em a portion of any recovery from t e nonparticipating coID3s'$ w ere a settling defendant as a sta.e in t e outcome of a case against coI defendants$ are violative of public policy.

3. #ontri2ution an! In!emnity Contribution is w en t e D get reimbursement against ot ers w o were also negligent wit t e arm. im and caused

(nell v. Feltman# ! e rig t to contribution does not e5ist only between tortfeasors against w om t e plaintiff as obtained a "udgment. ! e common law rule disallowing contribution between nonI intentional tortfeasors is ereby overruled. 6t erwise$ t e ) and one D could gang up against anot er D and force im to pay for t e )3s entire damages. ! e appellant3s t eory t at t ere can be no contribution unless t e )l as first obtained a "udgment against bot wrongdoers is baseless for anot er reason. ! e rig t to see. contribution belongs to t e tortfeasor w o as been forced to pay$ and t e e5istence of t e rig t cannot logically depend upon a selection of dfs made by t e )l. % en a tort is committed by t e concurrent negligence of two or more persons w o are not intentional wrongdoers$ contribution s ould be enforced@ t at "oint "udgment against suc tortfeasor is not a prere/uisite to contribution between t em $ and it is immaterial w et er t ey were$ or any of t em was$ personally negligent.

7ellow Cab Co. of D.C.$ -nc. v. Dreslin# Coint liability is re/uired before any contribution can be ordered. Contribution may not be obtained from a tortfeasor w o as no liability to t e in"ured party. &immunity in t is case of usband nor wife is liable for t e tortuous acts of one against t e ot er.' 4a"ority rule t at nonIimmune tortfeasors may not see. contribution or indemnity from t ose w o are immune. *locum v. Dona ue# A "oint tortfeasor is not entitled to indemnification from a fellow tortfeasor. *ince Dona ues released Ford$ t at at t e same time disc arges Ford from liability for contribution to Dona ues. He is not entitled to indemnification eit er because indemnity allows someone is wit out fault$ compelled by law to defend imself against t e wrongful act of anot er$ to recover from t e wrongdoer t e amount of is loss. -ndemnity is limited to t ose cases w ere t e wouldIbe indemnity &Dona ue' is derivatively or vicariously liable for t e wrong act of anot er.

4. Apportionment of Dama/es Bruc.man v. )ena# A defendant cannot be eld liable for a plaintiff3s subse/uent in"ury w ere t e plaintiff cannot apportion t e damages between t e causes of in"uries. 4ic ie v. 0reat La.es *teel Division$ +at3l *teel Corp.# % ere t e independent concurring acts of defendants ave caused an indivisible arm to t e plaintiff and no reasonable means of apportioning t e damages is evident$ t e court may old t e defendant3s "ointly and severally liable. Dillon v. !win *tate 0as M 8lectric Co.# % ere a plaintiff$ regardless of t e defendant3s negligence$ would ave suffered in"ury$ t e plaintiff3s damages would be measured based on t e plaintiff3s in"ured condition.

CH. > Duty of Care ! e proposition is t at w enever one person is by circumstances placed in suc a position wit regard to anot er t at every one of ordinary sense would at once recogni1e t at if e did not use ordinary care and s.ill in is own conduct wit regard to t ose circumstances$ e would cause danger of in"ury to t e person or property of t e ot er$ a duty arises to use ordinary care and s.ill to avoid suc danger. 1. )ri&ity of #ontract +ofeasanceI D made a promise and bro.e it$ as a contract action. 4isfeasanceI D attempted to perform$ but did t e wrong t ing$ recovery in tort is greatly augmented as well as breac of .. %interbottom v. %rig t# A person may not sue anot er on a nonIpublic contract w ere e?s e is not privy & aving mutual interests in t e same action or t ing' to t e contract. 4ac) erson v. Buic. 4otor Co.# A manufacturer owes a duty of care to remote purc asers if t e product is reasonably certain to cause t e in"ury w en negligently made. -f t e nature of t e t ing is suc t at it is reasonablt certain to place life and limb in peril w en negligently made$ it is t en a t ing of danger. -ts nature gives warning of t e conse/uences to be e5pected. -f to t e element of danger t ere is added .nowledge t at t e t ing will be used by persons ot er t an t e purc aser$ and used wit out new tests$ t en$ irrespective of contract$ t e manufacturer of t is t ing of danger is under a duty to ma.e it carefully. ! at is as far as we need to go for t e decision of t is case . . . . -f e is negligent$ w ere danger is to be foreseen$ a liability will follow. H.2. 4oc Co. v. 2ensselaer %ater Co.# A party w o is in no contractual or special relations ip to anot er may not be eld liable for refusal to aid t e ot er. Clagett v. Dacy# An attorney may not be eld liable to a person w o is not intended to benefit by is performance$ and wit w om t e attorney does not ave a contractual relations ip.

2. Failure to Act

0enerally$ a person cannot be liable in tort for failure to act. However$ t ere are e5ceptions to t is rule including employer to employees$ sc ool wit students$ landlord wit tenants$ ectL Hegel v. Langsam# A university does not ave t e duty to control t e private lives of its students. L.*. Ayres M Co. v. Hic.s# A store owner of an inviter as t e duty to rescue a person in peril if t e instrumentality causing t e person3s in"ury is in control of t e owner or inviter. C.*. and 4.*. v. 2.!.H.# % en a spouse as actual .nowledge or special reason to .now of t e li.eli ood of is or er spouse engaging in se5ually abusive be avior against a particular person or persons$ a spouse as a duty of care to ta.e reasonable steps to prevent or warn of t e arm and a breac of suc duty constitutes a pro5imate cause of t e resultant in"ury. !arasoff v. 2egents of University of California# ! e relations ip between a t erapist and a patient supports t e duty on t e part of t e t erapist to e5ercise reasonable care to ot ers against dangers posed by t e plaintiff3s illness.

3. )ure Economic oss -f t e arm is pure economic loss$ t e courts ta.e more seriously t e claim t at liability s ould be restricted. Cases fall into two categories# &1' +egligent misrepresentation or misstatement causing economic loss and &,' negligent acts causing economic loss. *tate of Louisiana e5 rel. 0uste v. 4?D !estban.# A plaintiff may not recover for pure economic loss if t e loss resulted from p ysical damage to t e property in w ic t e plaintiff ad no interest.

4. Emotional Distress 4ost "urisdictions ave been willing to award for D3s negligence conduct t at emotionally distresses an individual and causes a p ysical impact. However$ most courts are less willing to permit recovery for emotional suffering alone. Daley v. LaCroi5# A plaintiff w o as suffered p ysical in"ury as a result of emotional distress caused by a defendant3s negligence may recover damages$ even in t e absence of any p ysical impact upon t e plaintiff. % ere a definite and ob"ective p ysical in"ury is produced as a result of emotional distress appro5imately caused by D3s negligent conduct$ t e ) may recover damages not wit standing t e absence of any p ysical impact. ! ing v. La C usa# A parent w ose c ild was struc. by a negligent driver may not recover damages for emotional distress w ere t e parent did not witness t e accident.

5. 8n2orn #$il!ren Alt oug istorically court ave denied liability for fetuses$ beginning in 19B:$ an overw elming ma"ority of "urisdictions ave allowed a cause of action for prenatal in"uries w en t ey were inflicted on a viable fetus w o was conse/uently born alive. 8ndres1 v. Friedberg# ! e parents of a stillborn c ild may not maintain a wrongful deat action for t e deat of an unborn c ild. )rocani. by )rocani. v. Cillo# An infant may not file a wrongful life claim to recover general damages for diminis ed c ild ood and pain and suffereing.

CH. 9 6wners and 6ccupiers of Land 1. Outsi!e t$e )remises

!aylor v. 6lsen# A landowner is under t e duty to use common and reasonable met ods to e5amine conditions on is? er property w ic may give rise to p ysical in"ury. *alevan v. %ilmington )ar.$ -nc.# A landowner w o .nows or s ould .now of dangerous conditions on is? er property must ta.e reasonable precautions to prevent in"ury to ot ers using roadways ad"acent to is? er land.

2. On t$e )remises 0A1 Trespassers *urprising to many omeowners is t e fact t at a duty of care is also owed to people w o ave no permission or lawful rig t to be on t e premises. A trespasser is a person w o enters t e premises of anot er wit out e5press or implied permission of t e owner$ for t e trespasserHs own benefit or amusement. A omeowner cannot lawfully prepare pitfalls or traps for a trespasser in order to purposefully in"ure t e trespasser. 6nce t e owner is aware of t e trespasserHs presence or can reasonably anticipate suc presence from t e circumstances II evidence of s.ateboarders in an unfinis ed swimming pool would fall into t is category II t en t e owner as a duty to e5ercise ordinary care to avoid in"uring t e trespasser. * ee an v. *t. )aul M Dulut 2y. Co.# A landowner does not owe a duty of care to a trespasser of w om t e landowner as no actual or constructive notice. 0B1 icensees

A licensee is a person w o as no contractual relation wit t e property owner$ but w o is permitted II e5pressly or implicitly II to be on t e premises. A licensee is t ere for is? er own interest and not for occupiers benefit. A social guest at a residence is normally considered a licensee. ! e omeowner is usually liable only for willful or wanton in"ury to a licensee. ! is means t at t e omeowner is re/uired to e5ercise enoug care to prevent in"ury to a licensee w o is actually .nown to be II or could reasonably be e5pected to be II wit in t e range of a dangerous act or condition. Barmore v. 8lmore# ! e owner?occupier of a property as t e duty to warn a licensee ?social guest of idden dangers un.nown to t e latter. 0#1 In&itees

% en a omeowner invites or induces ot ers to enter t e premises for any lawful purpose$ t is triggers t e omeownerHs duty to e5ercise ordinary care to .eep t e premises safe. -nvitees ave an e5press or implied invitation to enter or use anot er3s premises$ suc as a business visitor or member of t e public to w om t e premises are eld open. 6wners want t em t ere for t eir own purposes &usually financial'. An invitation may be e5pressed &i.e. t roug words suc as Kplease come inK'$ implied from .nown customs or use of t e premises$ or inferred from t e omeownerHs conduct. Campbell v. %eat ers# An individual$ entering a place of business open to t e public$ need not ma.e a purc ase in order to be considered an invitee. % elan v. Dan +atta# An invitee ceases to be an invitee after t e e5piration of a reasonable time wit in w ic to accomplis t e purpose for w ic e is invited to enter or remain. 0D1 )ersons Outsi!e t$e Esta2lis$e! #ate/ories 011 #$il!ren ! e attractive nuisance doctrine is landowner may be eld liable for in"uries to c ildren trespassing on t e land if t e in"ury is caused by a a1ardous ob"ect or condition on t e land t at is li.ely to attract c ildren w o are unable to appreciate t e ris. posed by t e ob"ect or condition. ! e doctrine as been applied to old

landowners liable for in"uries caused by abandoned cars$ piles of lumber or sand$ trampolines$ and swimming pools. However$ it can be applied to virtually anyt ing on t e property of t e landowner. According to t e 2estatement of !orts standard$ w ic is followed in many "urisdictions$ t ere are five conditions t at must be met for a land owner to be liable for tort damages to a c ild trespasser. ! e five conditions of 2estatement of !orts < ==9 are# A possessor of land is sub"ect to liability for p ysical arm to c ildren trespassing t ereon caused by an artificial condition upon land if#
&a' t e place w ere t e condition e5ists is one on w ic t e possessor .nows or as reason to .now t at

c ildren are li.ely to trespass$ and

&b' t e condition is one of w ic t e possessor .nows or as reason to .now and w ic

e reali1es or s ould reali1e will involve an unreasonable ris. of deat or serious bodily arm to suc c ildren$ &c' t e c ildren$ because of t eir yout $ do not discover t e condition or reali1e t e ris. involved in interImeddling wit it or in coming wit in t e area made dangerous by it &d' t e utility to t e possessor of maintaining t e condition and t e burden of eliminating t e danger are slig t as compared wit t e ris. to c ildren involved$ and &e' t e possessor fails to e5ercise reasonable care to eliminate t e danger or ot erwise to protect t e c ildren 021 )ersons )ri&ile/e! to Enter Irrespecti&e of an!o,ner9s #onsent 0E1 *e:ection or ;er/in/ of #ate/ories 2owland v. C ristian# An occupier owes a duty to warn ot ers of .nown dangerous conditions w ic are .nown to t e owner?occupier or to repair t e conditions in order to prevent t e ris. of unreasonable arm to ot ers. essor an! essee Borders v. 2oseberry# A landlord does not$ as a matter of law$ owe a duty of care to a social guest of is tenant to remedy known dangerous conditions. 85ceptions# &1' undisclosed dangerous conditions .nown to lessor and un.nown to lessee$ &,' conditions dangerous to persons outside t e premises$ &=' premises leased for admission to t e public$ &B' parts of land retained in lessor3s control w ic lessee is entitled to use$ &;' w ere lessor contracts to repair$ and &:' negligence by lessor in ma.ing repairs. )agelsdorf v. *afeco -ns. Co. of America# A landlord owes a tenant$ or ot er individuals on t e property wit t e tenant3s permission$ t e duty to e5ercise ordinary care in maintaining t e premises in safe condition. (line v. 1;GG 4assac usetts Ave. Apartment Corp.# A landlord as t e duty to ta.e reasonable precautions to protect tenants from foreseeable criminal acts of t eir parties.

3.

CH. 1G Damages -n any action based on negligence$ t e e5istence of actual in"ury is a re/uirement. Unli.e intentional tort actions$ t erefore$ nominal damages may not be awarded. ! e ) must s ow t at e suffered some .ind of p ysical arm. !ypes of Damages# Compensatory damages# li.e t e name suggests$ are intended to compensate t e in"ured party for is loss or in"ury. -t is suppose to ma.e ) w ole again$ and restore t e ) to t e position t e ) was in before t e tort occurred. )unitive damages# are awarded to punis a wrongdoer. Additional sum to punis D.

+ominal damages# w ere t e court awards a nominal amount suc as one dollar. A small sum awarded w en a legal in"ury suffered but t ere is no substantial loss or in"ury to be compensated. 1. )ersonal In:uries Anderson v. *ears$ 2oebuc. M Co.# A trial court may review a "ury3s award of damages to determine w et er it e5ceeds t e ma5imum amount t at t e "ury could reasonably award. 2ic ardson v. C apman# An award of damages will be deemed e5cessive if it falls outside t e range of fair and reasonable compensation or results from passion or pre"udice$ or if it is so large t at it s oc.s t e "udicial conscience.

UEconomic Losses ! e ) can recover is direct outIofIpoc.et losses stemming from t e in"ury. ! ese include medical expenseslost earnings- and t e cost of any labor re/uired to do t ings t at t e ) can no longer do imself. U.on,economic losses ) ysical pain and suffering$ mental anguis # t e ) may also re/uired for actual p ysical pain suffered from t e in"uries. ! is could included suffering before t e trial as well as an estimate of suffering w ic will occur during t e future. Also$ for mental distress$ t e ) may recover for various mental conse/uences of t e in"ury &i' frig t and s oc. at t e time of t e in"ury &ii' umiliation due to disfigurement$ disability$ edonistic damages &damages for t e loss of t e ability to en"oy life' &iii' un appiness and depression at being unable to lead one3s previous life and &iv' an5iety about t e future. U/udicial &ontrol of 0mounts %ecovered 2emittitur# a ruling by a "udge &usually upon motion to reduce or t row out a "ury verdict' lowering t e amount of damages granted by a "ury in a civil case. Usually$ t is is because t e amount awarded e5ceeded t e amount demanded@ owever$ t e term is sometimes used for a reduction in awarded damages even w en t e amount awarded did not e5ceed t e amount demanded$ but is ot erwise considered e5cessive. -f t e motion is granted$ t e plaintiff may eit er accept t e reduced verdict or submit to a new trial. Additur# Additur refers to t e power of a trial court to assess damages or increase a "ury award of damages found to be e5cessively low. -t is a means of avoiding a retrial w ere t e damages awarded by t e "ury are deemed to be so low as to amount to a miscarriage of "ustice. ! e defendant must agree to t e additur$ but t e plaintiff is not re/uired to consent. -t is typically involved w ere t e "ury is influenced by pre"udice$ corruption$ passion$ or mista.e. -t is not allowed in all states or by t e federal government. ULegislative &ontrol of 0mounts %ecovered Legislatures can and ave passed laws limiting t e amount of damages recoverable. 4ontgomery %ard M Co.$ -nc. v. Anderson# 0ratuitous or discounted medical services are a collateral source not to be considered in assessing t e damages due a personal in"ury plaintiff. Collateral source rule# evidentiary rule t at pro ibits t e admission of evidence t at a victimHs damages were or will be compensated from some source ot er t an t e damages awarded against t e D. Qimmerman v. Ausland# A person may not recover damages for permanent in"ury if t e permanency could ave been avoided by treatment and a reasonable person under t e same circumstances would undergo t e treatment.

2. )$ysical 7arm to )roperty

Damages for p ysical arm to land or c attels is closely tied in wit t e concept of value$ or in ot er words$ w at t e property is wort . 4ar.et value is w at t e property in /uestion could probably ave been sold for on t e open mar.etI t e ig est price t at could ave been reali1ed. ! e rule of ig est intermediate value allows as damages t e ig est value w ic goods ave reac ed during t e period from time of t e wrong to trial. ! e +ew 7or. rule is t e ig est mar.et price between time of conversion and reasonable period. 3. )uniti&e Dama/es C eat am v. )o le# !o t e e5tent punitive damages are recoverable$ t ey are a creature of t e common law. ! e legislature is free to create$ modify$ or abolis common law causes of action. And$ as a matter federal constitutional law$ no person as a vested interest or property rig t in a rule of common law. ! e award to t e Fund is not t e property of t e plaintiff. +or is er pre"udgement claim a property interest. ! erefore$ because t e punitive damages do not compensate t e )$ t e ) as no rig t or entitlement to an award in punitive damages in any amount. Any punitive damage given to ) is a creation of state law$ w ic means t e money ta.en by t e ) is not t e property of t e )$ nor a property interest. *tate Farm 4utual Automobile -ns. Co. v. Campbell# ! e Court eld t at t e punitive award of V1B; million was neit er reasonable nor proportionate to t e wrong committed$ and it was t us an irrational$ arbitrary$ and unconstitutional deprivation of t e property of t e insurer. ! e Court reasoned t at evidence of dissimilar outIofIstate misconduct was an improper basis for punis ing t e insurer for t e limited arm and noted$ Kfew awards e5ceeding a singleIdigit ratio between punitive and compensatory damages$ to a significant degree$ will satisfy due process.K

CH. 11 %rongful Deat and *urvival ! e difference between a wrongful deat statute and a survival statute is t at a survival action permits recovery for t e wrong to t e in"ured person and is confined to is personal loss w ile t e wrongful deat action is for t e wrong to t e beneficiaries$ confined to t eir loss because of t e deat . ! e latter begins w ere t e former ends and recovery on bot is not double recovery for a single wrong but rat er separate recoveries for different wrongs. 1. <ron/ful Deat$ %rongful deat statutes create a cause of action for any wrongful act$ neglect$ or defect t at causes deat @ t e action may be broug t by t e e5ecutor or administrator of t e decedent3s estate or by is surviving family and is e5pected to compensate t e family for t e loss of economic benefits t at would ave ad in t e form of support$ services$ or contributions ad t e decedent lived. 2ecovery for wrongful deat was eld to cover damages for &1' loss of support including all financial support t at t e D would ave made to is dependants ad e lived$ &,' t e monetary value of services t at t e decedent provided and would ave continued to provide but for is wrongful deat &i.e. nurture$ training$ education and guidance and services t e decedent performed at ome for is spouse'$ &=' compensation for loss of society &including love$ attention$ care$ affection$ companions ip$ comfortL' &B' damages for funeral e5penses. 4orangne v. *tates 4arine Lines$ -nc.# 4aritime law s ould allow a cause of action for wrongful deat . *elders v. Armentout# ! e measure of damages for t e wrongful deat of a minor c ild s ould include loss of society$ comfort and companions ip of t e c ild.

2. 'ur&i&al *urvival statute w ic preserves for a decedent3s estate a cause of action for infliction of pain and suffering and related damages suffered up to t e moment of deat by t e decedent. ) ysical and mental pain and

suffering are of t e decedent are allocated to t e survival action$ as are medical e5penses. As well as decedent3s loss of potential earnings during is life e5pectancy. 4urp y v. 4artin 6il Co.# ! e spouse of a decedent may maintain an action for t e loss of property$ loss of wages$ and pain and suffering of t e decedent during t e interval between t e in"ury and deat .

CH. 1, Defenses 1. )laintiff9s #on!uct 0A1 #ontri2utory +e/li/ence Contributory negligence is conduct on t e part of t e plaintiff t at falls below t e standard to w ic e s ould conform for is own protection$ and w ic is a legally contributing cause in addition to t e negligence of t e defendant in bringing about t e plaintiff3s arm. At common law$ any amount of contributory negligence barred recovery by t e plaintiff. Basically$ it is a doctrine of common law t at if a person was in"ured in part due to is? er own negligence & is? er negligence KcontributedK to t e accident'$ t e in"ured party would not be entitled to collect any damages &money' from anot er party w o supposedly caused t e accident. Under t is rule$ a badly in"ured person w o was only slig tly negligent could not win in court against a very negligent defendant. Butterfield v. Forrester# An in"ured plaintiff may not recover damages against a negligent defendant if t e plaintiff did not e5ercise reasonable care to avoid t e in"ury. Davis v. 4ann# A negligent defendant$ claiming contributory negligence on t e part of t e plaintiff$ may not escape liability if t e defendant ad t e last c ance to prevent t e in"ury ad e?s e not been negligent. &Last clear c ance doctrine# A doctrine t at a defendant may be liable for t e in"ury e caused even t oug t e plaintiff was contributorily negligent$ if t e defendant could ave avoided t e in"ury to t e plaintiff by e5ercising ordinary care.' 0B1 #omparati&e +e/li/ence Comparative negligence is t e allocation of responsibility for damages incurred between t e plaintiff and defendant$ based on t e negligence of t e two@ t e reduction of t e damages to be recovered by t e negligent plaintiff in proportion to is fault. )rior to t e late 19:Gs$ owever$ only a few states ad adopted t is system. % en comparative negligence was adopted$ t ree main versions were used. ! e first was called KpureK comparative negligence. A plaintiff w o was$ say$ 9GW to blame for an accident could recover 1GW of is losses. &6f course$ if t e defendant suffered in"uries in suc a case$ e?s e could counter claim and recover 9GW of is? er losses from t e ot er party.' ! e second and t ird versions are lumped toget er in w at is called KmodifiedK comparative negligence. 6ne variant allows plaintiffs to recover only if t e plaintiffHs negligence is Knot greater t anK t e defendantHs &vi1.$ t e plaintiffHs negligence must not be more t an ;GW of t e combined negligence of bot parties'. ! e ot er variant allows plaintiffs to recover only if t e plaintiffHs negligence is Knot as great asK t e defendantHs &vi1.$ t e plaintiffHs negligence must be less t an ;GW of t e combined negligence'. ! e apparently minor difference between t e two modified forms of comparative negligence are t oug t by lawyers andling suc cases to be significant in t at "uries w o ordinarily assign degrees of fault are muc less willing to award damages to a plaintiff w o is e5ually at fault t an to one w o is less at fault t an t e defendant.

4c-ntyre v. Balentine# ! e doctrine of contributory negligence s ould be replaced by a system of comparative fault to allow t e plaintiff$ w ose negligence is less t an t e defendant$ to recover damages w ic are reduced in proportion to t e plaintiff3s percentage of fault. 0#1 Assumption of *is=

Assumption of ris. w ic bars a plaintiff from recovery against a negligent tortfeasor if t e defendant can demonstrate t at t e plaintiff voluntarily and .nowingly assumed t e ris.s at issue in erent to t e dangerous activity in w ic e was participating at t e time of is in"ury. 011 E>press -f t e ) e5pressly agrees wit t e D$ in advance of any arm$ t at t e ) will not old D liable for certain arm$ t e ) is said to ave Ee5presslyF assumed t e ris. of t at arm. -f t ere is no Epublic policyF against t e assumption of ris. involved$ t e agreement will be enforced and t e ) may not recover. *eigneur v. +ational Fitness -nstitute$ -nc.# )ublic interest will render an e5culpatory clause unenforceable w en# &1' t e party protected by t e clause intentionally causes arm or engages in acts of rec.less$ wanton$ or gross negligence@ &,' t e bargaining power of one party to t e contract is so grossly une/ual so as to put t at party at t e mercy of t e ot erHs negligence@ and &=' t e transaction involves t e public interest. ! e court places itself in t e position of t e parties at t e time t ey made t e contract$ so as to view t e circumstances at t e time and to "udge t e meaning of t e words in t e contract in conte5t. +one of t e t ree conditions apply in t is case$ so t e clause is up eld and t e club is released from liability. ! e ultimate determination of w at constitutes t e public interest must be made considering t e totality of t e circumstances of any given case against t e bac.drop of current societal e5pectations. 021 Implie! 8ven if t e ) never ma.es an actual agreement wit t e D w ereby t e ris. is assumed by t e former$ s e may be eld to ave assumed certain ris.s by er conduct. -n t is situation t e assumption of ris. is said to be implied. ! e ) must ave .nowledge of t e ris. &1' it must be s own t at t e particular risk in )uestion was .nown to t e D &,' t e ris. was one w ic was actually .nown to t e ) &=' owever$ in some situations ) indicates consent for un.nown ris.s. )rimary assumption of ris.I t e D not negligent eit er because e owed no duty to t e ) in t e first place or because e did not breac t e duty owed. *econdary assumption of ris.I affirmative defense to an establis ed breac of a duty owed by t e D to t e ). 2us v. Commercial 2ealty Co.# A person does not voluntarily accept a ris. w en no reasonable alternatives e5ist. Blac.burn v. Dorta# -mplied assumption of ris. is subsumed by t e doctrine of comparative negligence.

2. 'tatutes of imitations an! *epose % en t e ) does not discover is in"ury until long after t e D3s negligent act occurred$ does t e statute of limitations start to run at t e time of t e act$ or at t e time of t e discoveryA

!eeters v. Currey# A cause of action for malpractice does not accrue$ and t e statute of limitations does not begin to run$ until t e in"ured party discovers or s ould ave discovered t e in"ury. Under t e discovery doctrine$ t e statute does not begin to run until t e negligent in"ury is or s ould ave

been discovered. ! e traditional rule is a ars and oppressive rule. ,> states now embrace t e discovery doctrine. -n t ose classes of cases w ere medical malpractice is asserted to ave occurred t roug t e negligent performance of surgical procedures$ t e cause of action accrues and t e statute of limitations commences to run w en t e patient discovers or in t e e5ercise of reasonable care and diligence for is own ealt and welfare$ s ould ave discovered t e resulting in"ury. 3. Immunities An immunity is a defense to tort liability t at is given to an entire class of persons based on t eir relations ip wit t e prospective )$ t e nature of t eir occupation$ t e status as a governmental or c aritable entity. ! e common law created a number of virtually complete immunities$ but all of t ese are beginning to brea. down at least to some e5tent$ eit er by statutory reform or "udicial overruling. 0A1 Families Husband and wife# At common law$ t e usband and wife were considered as one person. +ow$ over alf t e states ave completely abolis ed t e interIspousal immunity$ even for personal in"ury suits. -n states t at ave not completely abolis ed t e immunity$ a number of limitations on it are commonly applied. Free e v. Free e# *pouses are not immune from liability in personal in"ury cases. 2e"ected all traditional reasons for t e immunity including# &1' oneness of usband and wife$ &,' peace and tran/uility &if t ere is suc peace and tran/uility t e situation is suc t at eit er no action will be commenced or t at t e parties will allow t e action to continue so long as t eir personal armony is not "eopardi1ed' &=' flood of litigation & as not materiali1ed in ot er states t at ave previously abolis ed t e immunity' and &B' collusion and fraud.

)arent and c ild# Common law barred suit from a c ild against is parents or vice versa &e5ception violence against t e c ild'. About a t ird of t e states ave now abolis ed t is immunity$ at least in automobile accident suits. 6ne factor t at is fre/uently stressed is t at nearly everyone as liability insurance. 2en.o v. 4cLean# ! ere is no e5ception to t e parentIc ild immunity doctrine for in"uries sustained in motor tort cases occurring during t e c ild3s minority. 0B1 #$arities C aritable organi1ations$ as well as educational and religious ones$ received immunity at common law. 2easons given for t is &1' trust fundI t e c arity olds t e donations it receives in trust$ and t e donor as not given t ese funds wit t e intention t at t ey be used to pay tort claims$ &,' implied waiverI t e beneficiary of c arity as impliedly waived is rig t to sue in tort$ by virtue of aving accepted t is benevolence. However$ by now$ more t an t irty states ave abolis ed c aritable immunity. Abernat y v. *isters of *t. 4ary3s# +ongovernmental c aritable institutions are liable for t eir own negligence and t e negligence of t eir employees. 2elied on t e availability of liability insurance in abolis ing t e defense$ alt oug t e e5istence of suc insurance in any particular case is irrelevant to liability. -n reference to t e reasons given to favor t is immunity$ &1' t e court said t e trust fundI liability s ould not be determined based on w et er t e c arity can satisfy a "udgement$ and &,' in terms of t e implied waiverI t ere are some people w o could not ave possibly waived t eir rig t to sue$ suc as an unconscious accident victim carried to a c aritable ospital$ meaning implied waiver is a legal fiction. 0#1 Employer Immunity

*ince statutes allow employees to recover from t eir employers for wor.Irelated in"uries wit out aving to s ow any fault on t e part of t e employerI an employee w o is in"ured on t e "ob generally cannot file a tort claim against is employer even if employer was negligent. 0D1 'tate an! ocal ?o&ernments At 8nglis common law$ sovereign immunity? immunity of t e .ing developed. ! e doctrine$ w ic was connected to t e divine rig ts of .ings$ was sometimes e5pressed by saying t at t e .ing can do no wrong. 8arly American courts applied t e 8nglis rule to old t at t e United *tates could not be sued wit out its consent. ! e first ma"or and meaningful consent by t e United *tates to torts claims was embodied in t e 19B: Federal !orts Claims Act &F!CA'. ! e act continues today to be dispositive of almost all possible tort claims against t e government. !oday$ almost all states ave limited sovereign immunity to some e5tent. 4any states and t e federal government continue immunity for discretionary functions &t ose w ere t e government is acting to establis policy$ i.e. ow muc money to spend on police' but ave eliminated it for ministerial acts &t ose t at implement or effectuate t e policies i.e. police officer negligently driving car'. Ayala v. ) iladelp ia Board of )ublic 8ducation# 0overnmental entities are not immune from tort liability. 2iss v. +ew 7or.# Cities are immune from liability for t e negligent failure to provide ade/uate police protection. DeLong v. 8rie County# 4unicipalities are not immune from liability w en t ey voluntarily assume a duty to provide police protection for a particular individual. 0E1 T$e 8nite! 'tates Deuser v. Decera# Discretionary conduct of government agents acting wit in t e scope of t eir aut ority are protected by t e discretionary function e5ception to t e Federal !orts Claims Act. 0F1 )u2lic Officers )ublic officers can be eld individually liable for torts committed in t e course of t eir official duties. )ublic officials ave limited commonIlaw immunities# &a' legislators and "udges ave been granted immunity for acts wit in t e scope of t eir office &b' t e president of t e U.*. is absolutely immune for acts wit in t e scope of is office$ but presidential aides are only entitled to /ualified immunity$ &c' some states officers ave official immunity$ but only for acts t at are discretionary in nature. CH. 1= Dicarious Liability Dicarious liability is w en one person is liable for t e negligent actions of anot er person$ even t oug t e first person was not directly responsible for t e in"ury. 1. *espon!ent 'uperior 2espondent superior is a commonIlaw doctrine t at ma.es an employer liable for t e actions of an employee w en t e actions ta.e place wit in t e scope of employment. Bussard v. 4inimed$ -nc.# Foreseeability as a test for respondeat superior merely means t at in t e conte5t of t e particular enterprise an employeeHs conduct is not so unusual or startling t at it would seem unfair to include t e loss resulting from it among ot er costs of t e employerHs business. *uc a test is useful because it reflects t e central "ustification for respondeat superior# t at losses fairly attributable to an enterpriseI t ose w ic foreseeably result from t e conduct of t e enterpriseI s ould be allocated to t e enterprise as a cost of doing business. ! is means t e employer could ta.e

precautions &li.e in t is case w ere t ey as.ed t e employee if s e was capable of driving ome' and still be liable. 63* ea v. %elc # -f an employee w olly abandons$ even temporarily$ t e employerHs business for personal reasons$ t e act is not wit in t e scope of employment$ and t e employer is not liable under respondeat superior for t e employeeHs conduct during t at lapse. *lig t deviation rule# it must be determined w et er t e employee was on a frolic &abandonment of employer3s business w ile in pursuit of employee3s own personal business' or a detour &slig t deviation from employer3s own business for employee3s own reasons'.

2. In!epen!ent #ontractors ! e employer of an independent contractor is generally not eld vicariously liable for t e tortious acts and omissions of t e contractor$ because t e control and supervision found in an employerIemployee or )rincipalIAgent relations ip is lac.ing. However$ vicarious liability will be imposed in t ree circumstances# 1. t e contractor is involved in an ultraI a1ardous activity &one li.ely to cause substantial in"ury$ suc as blasting wit e5plosives' ,. ! e employer is erself negligent in er dealing wit t e independent contractor. =. +onIdelegable duty$ or duties of care t at are deemed so important t at t e person doing t em will not be allowed to delegate t em to anyone. 4urrell v. 0oert1# 8mployer is not liable for t e torts of is independent contractor. 4aloney v. 2at # A motorist cannot delegate er duty to .eep er bra.es in wor.ing order to an independent contractor. 3. .oint Enterprise A "oint enterprise is li.e a partners ip$ e5cept t at it is generally for a very s ort and specific purpose. 6nce t e various re/uirements for "oint enterprise are met$ t e negligence of one "oint enterpriser is imputed to t e ot er. 2e/uirements of "oint enterprise# &1' an agreement e5press or implied between t e parties$ &,' a common purpose to be carried out by t e members$ &=' a common pecuniary interest in t at purpose and &B' and e/ual rig t to a voice in t e enterprise$ i.e. right of control. )ope"oy v. *teinle# A defendant is not vicariously liable for t e negligence of anot er under a t eory of "oint venture unless t e "oint venture was motivated by profit.

4. Bailments A legal relations ip created w en a person gives property to someone else for safe.eeping. !o create a bailment$ t e ot er party must .nowingly ave e5clusive control over t e property. ! e receiver must use reasonable care to protect t e property. * uc. v. 4eans# 85presses modern view. A car rental agency is liable for t e negligence of an individual w o drives its rental car$ even t oug it did not rent t e car to t at individual. )roving lac. of consent in t ese situations re/uires a strong s owing t at t e car was being used by t e permittee wit out t e ownerHs .nowledge and contrary to is e5plicit instructions$ or t at t e subpermittee was driving wit out t e permission of t e first permittee under conditions w ic approac t e status of conversion or a t eft.

5. Impute! #ontri2utory +e/li/ence

-mputed contributory negligence as ac/uired a bad reputation in t e law. !raditionally$ imputed contributory negligence as been w en a person &A' is vicariously liable for t e tortuous actions of anot er &B' and a t ird person &C' brings an action$ and t at ma.es B3s contributory negligence impute to A w en A sues C. ! at doctrine caused in many cases an entirely innocent person$ w o was seriously in"ured by no fault of t eir own$ be barred from recovery against anot er a person w o negligently in"ured t em$ because t ey were c arged wit t e negligence of anot er w o ad contributed to t e in"ury. Historically$ t ere ave been several areas in w ic contributory negligence was imputed# &1' Driver and )assengerI A driver3s negligence was fre/uently imputed to is passenger$ so as to prevent t e passenger from recovering against t e driver of anot er ve icle w ose negligence contributed to t e collision between t e two cars. ! is resulted in ma.ing t e entire loss of t e accident fall upon t e one person w o was free from negligence. &,' Husband and wife# A usband3s negligence was fre/uently imputed to is wife and vice versa. !oday$ t e contributory negligence of one spouse is no longer imputed to bar a recovery by t e ot er. &=' )arent and c ildI A parent3s negligence was imputed to is c ild. 4odern rule# -n most states$ contributory negligence will be imputed only if t e relations ip between is one w ic would ma.e t e ) vicariously liable if e were a D &contributory negligence could not be imputed unless negligence could be imputed'. Bot ways test# ! e formerly accepted test t at if t e relations ip is one w ic would give rise to vicarious liability$ contributory negligence must be imputed &if negligence could be imputed$ contributory negligence will also be'.

*malic v. %estfall# Contributory negligence may not be imputed to a passenger riding t eir own automobile wit out t e finding of eit er a masterIservant relations ip or a finding of "oint enterprise. A plaintiff oug t not to be barred from recovery against a negligent defendant by t e contributory negligence of a t ird person unless t e relations ip between t e plaintiff and t e t ird person is suc t at t e plaintiff would be vicariously liable as a defendant for t e negligent acts of t e t ird person.

CH. 1B *trict Liability 1. Animals !respassing animals# -n most states$ t e owner of livestoc. or ot er animals is liable for property damage caused by t em if t ey trespass on anot er3s land. ! is liability is strict even if t e owner e5ercises utmost care to prevent t e animals from escaping$ e is liable if t ey do escape and trespass. A person is also strictly liable for all damage done by any dangerous animal e .eeps. %ild animals# A person w o .eeps a wild animal is strictly liable for all damage done by it$ as long as t e damage results from t e dangerous propensity t at is typical of t e species in /uestion. However$ in"uries caused by domestic animals suc as dogs or cats$ do not give rise to strict liability unless t e owner .nows or as reason to .now t at of t e animal3s dangerous propensities1characteristics. 2. A2normally Dan/erous Acti&ities Abnormally dangerous activity is an underta.ing t at necessarily carries wit it a significant ris. of serious arm even if reasonable care is used$ and for w ic t e actor may face strict liability for any arm caused. An actor may be strictly liable because &1' involves t e ris. of serious arm to persons or propery$ &,' cannot be performed wit out t is ris. regardless of t e precautions ta.en and &=' does not ordinarily occur in t e community. ! e pat to strict liability for abnormally dangerous activities was begun in t e 8nglis case of 2ylands v. Fletc er. -n law$ t ere is a difference between t ings t at grow or occur naturally on t e land$ and

t ose t at are accumulated t ere artificially by t e defendant. For e5ample$ roc.s and t istles naturally occur on land. However$ t e defendants in 2ylands v Fletc er broug t water onto t e land. 2estatement < ;19 states t e general principle for liability$ and < ;,G provides several evaluative factors. *ection ;19 provides for strict liability for one Ew o carries on an abnormally dangerous activityF causing arm to persons or property even if e E as e5ercised t e utmost care to prevent t e arm.F *ection ;,G suggests evaluative factors to assist in determining if an activity s ould be termed abnormally dangerous &ultra a1ardous'$ and includes &1' t e e5istence of a ig degree of ris. of some arm@ &,' t e magnitude of t at arm &li.eli ood t at t e arm will be great'@ &=' t e inevitability of some ris. irrespective of precautionary measures t at mig t be ta.en@ &B' t e ordinary or unusual nature of t e activity &e5tent to w ic t e activity is of common usage'@ &;' inappropriateness of t e activity to t e place w ere it is carried on and &:' t e activityHs value to t e community in comparison to t e ris. of arm created by its presence. 2ylands v. Fletc er# A person carrying on an abnormally dangerous activity is absolutely liable for any damage caused by t at activity$ even t oug e was not negligent$ t at principle applies only to a KnonnaturalK use of t e defendantHs land$ as distinguis ed from Kany purpose for w ic it mig t in t e ordinary course of t e en"oyment of land be used.K *trict liability e5ists for arm resulting from t e miscarriage of lawful activity t at$ considering its place and manner$ is unusual$ e5traordinary$ or inappropriate. 4iller v. Civil Constructors$ -nc.# ! e essential /uestion is w et er t e ris. created is so unusual$ eit er because of its magnitude or because of t e circumstances surrounding it$ as to "ustify t e imposition of strict liability even t oug t e activity is carried on wit all reasonable care. ! e use of guns or firearms$ even t oug classified as dangerous or even ig ly dangerous$ is not t e type of activity t at must be deemed ultra a1ardous. -ndiana Harbor Belt 2.2. Co. v. American Cyanamid Co.# ! e manufacture and s ipping &as opposed to carrying' of to5ic c emicals is not abnormally dangerous. imitations on 'trict ia2ility Foster v. )reston 4ill Co.# A person carrying on an abnormally dangerous activity is not strictly liable for damage t at is not wit in t e scope of danger created by t at activity. 0olden v. Amory# A person carrying on an abnormally dangerous activity is not absolutely liable for if damage caused by t at activity was precipitated by an act of 0od. *andy v. Bus ey# ! e owner of an animal .nown to t e owner to be vicarious is strictly liable for damage caused by t e animal. Contributory negligence is not a defense to strict liability.

3.

CH. 1; )roducts Liability )roducts liability is t e umbrella term for t e liability of a manufacturer$ seller$ or ot er supplier of c attels$ to one wit w om e is not in privity of (.$ w o suffers p ysical arm caused by t e c attel. 1. De&elopment of T$eories of *eco&ery 0A1 +e/li/ence ! e general rules of negligence apply to one w o sells a product. 4ost commonly negligence t eory is used to ma.e a manufacturer liable for w ere e failed to use reasonable care in designing$ manufacturing$ or labeling t e product. 4ac) erson v. Buic. Co.# % en t ere is an element of probable danger wit a product$ t e manufacturer is under a duty to ma.e it carefully. ! is case establis ed t e general principle t at once t e ) s ows t at t e product will be unreasonably dangerous if defective$ e may sue in

negligence wit out privity. 8very state as accepted t is case$ meaning one w o negligently manufactures a product is liable for any personal in"uries pro5imately caused by is negligence. 0B1 <arranty Frea. ybrid# Eborn of t e illicit intercourse of tort and contractF 011 E>press <arranties An e>press ,arranty is a guarantee from t e seller of a product t at specifies t e e5tent to w ic t e /uality or performance of t e product is assured and states t e conditions under w ic t e product can be returned$ replaced$ or repaired. -t is often given in t e form of a specific$ written K%arrantyK document. However$ a warranty may also arise by operation of law based upon t e sellerHs description of t e goods$ and per aps t eir source and /uality$ and any material deviation from t at specification would violate t e guarantee. An e5press warranty can be made orally$ in writing and wit out t e intent of t e seller to actually create t e warranty. -n t e United *tates$ a seller is allowed to assert statements of opinion of value$ .nown as puffery$ t at t e buyer cannot "ustly rely on as part of t e basis for t e bargain. Ba5ter v. Ford 4otor Co.# ! e breac of an e5press warranty is actionable in tort$ even absent privity of contract$ if a purc aser of ordinary e5perience and reasonable prudence could not ave discovered defect. 021 Implie! <arranties An implied warranty is one t at arises from t e nature of t e transaction$ by putting good in stream of trade$ and t e in erent understanding by t e buyer$ rat er t an from t e e5press representations of t e seller. ! e ,arranty of merc$anta2ility is a warranty implied by law t at goods are reasonably fit for t e general purpose for w ic t ey are sold$ unless e5pressly disclaimed by name$ or t e sale is identified wit t e p rase Kas isK or Kwit all faults.K !o be Kmerc antableK$ t e goods must reasonably conform to an ordinary buyerHs e5pectations$ i.e.$ t ey are w at t ey say t ey are. ! e ,arranty of fitness for a particular purpose is implied w en a buyer relies upon t e seller to select t e goods to fit a specific re/uest. Henningsen v. Bloomfield 4otors$ -nc.# A contract of ad esion does not trump statutory implied warranties of merc antability. ! is case drastically restricted t e privity re/uirement in warranty cases in almost e5actly t e same way as 4c) erson ad restricted t e privity re/uirement for negligence actions. All states ave now accepted t e olding in t is case$ meaning t at t ey old a manufacturer3s warranty e5tends to remote purc asers furt er down t e line$ and t ey also old t at once t e final purc aser is covered by t e warranty$ t e warranty also applies to at least members of t e ouse old w o may reasonably be e5pected to use t e goods. 0#1 'trict ia2ility in Tort 0reenman v. 7uba )ower )roducts$ -nc.# 4anufacturers are strictly liable for in"uries caused by defective products if t e user does not .now of t e defects. A manufacturer is strictly liable in tort w en an article e places on t e mar.et$ .nowing t at it is to be used wit out inspection for defects$ proves to ave a defect w ic causes in"ury to a uman being.

2, < BG,A *pecial Liability of *eller of )roduct for ) ysical Harm to User or Consumer#

&1' 6ne w o sells any product in a defective condition unreasonably dangerous to t e user or consumer or to is property is sub"ect to liability for p ysical arm t ereby caused to t e ultimate user or consumer$ or is property if &a' t e seller is engaged in t e business of selling suc a product$ and &b' it is e5pected to and does reac t e user or consumer wit out substantial c ange in t e condition in w ic it is sold. &,' ! e rule stated in subsection &1' applies alt oug &a' t e seller as e5ercised all possible care in t e preparation and sale of is product$ and &b' t e user or consumer as not boug t t e product from or entered into any contractual relation wit t e seller. U < BG,A applies also to t e product3s retailer$ and any ot er person in t e distributive c ain &e.g. a w olesaler'. 2estatement ! ird of !orts# )roduct Defective )roducts < 1. Liability of Commercial *eller or Distributor for Harm Caused by Defective )roducts &a' 6ne engaged in t e business of selling or ot erwise distributing products w o sells or distributes a defective product is sub"ect to liability for arm to persons or property caused by t e defect. < ,. Categories of )roduct Defect A product is defective w en$ at t e time of sale or distribution$ it contains a manufacturing defect$ is defective in design$ or is defective because of inade/uate instructions or warnings. A product# &a' contains a manufacturing defect w en t e product departs from its intended design even t oug all possible care was e5ercised in t e preparation and mar.eting of t e product@ &b' is defective in design w en t e foreseeable ris.s of arm posed by t e product could ave been reduced or avoided by t e adoption of a reasonable alternative design by t e seller or ot er distributor$ or a predecessor in t e commercial c ain of distribution$ and t e omission of t e alternative design renders t e product not reasonably safe@ &c' is defective because of inade/uate instructions or warnings w en t e foreseeable ris.s of arm posed by t e product could ave been reduced or avoided by t e provision of a reasonable instructions or warnings by t e seller or ot er distributor$ or a predecessor in t e commercial c ain of distribution$ and t e omission of t e instructions or warnings renders t e product not reasonably safe. 2. )ro!uct Defects Defective products can cause serious in"ury and even deat . Defects can be traced to t ree main stages# w en t e product is designed$ w en t e product is manufactured and w en t e consumer s ould receive instructions or warnings. 0A1 ;anufacturin/ Defect % en a manufacturing defect occurs$ it can appen despite careful design. +o matter ow e5acting t e planning$ t e process can still brea. down during manufacturing. 8ven if t e /uality control is reasonable$ t e manufacturer is still at fault if$ for instance$ t e product as a wea. spot$ a crac. or anot er flaw. A manufacturer t at produces a product wit a manufacturing defect faces t e strict liability standard. ! is means t at no matter w at safety steps t e manufacturer too. during t e production process$ it is at fault if t e product causes in"ury due to a manufacturing defect. ! is standard encourages manufacturers to be vigilant during t e manufacturing process$ and it eases t e plaintiffHs burden of proof.

2i5 v. 0eneral 4otors Corp.# *ellers are strictly liable for manufacturing defects t at reac t e consumer wit out substantial c ange in t e defective condition. 0B1 Desi/n Defect

Design defects are in a manner of spea.ing$ intended. ! is type of defect is in erent in t e design of t e product. A design defect occurs in t e infancy of a product. -t is a fundamental flaw t at ma.es t e product unsafe. -f a consumer uses t e product in t e intended manner &or in a foreseeable manner'$ and t e consumer is in"ured by t e product$ t en t e consumer may be able to recover compensation. ! e in"ured plaintiff must s ow t at t e armful product was defectively designed. Depending on t e state in w ic t e legal action ta.es place$ t is will mean proving t at t e design was unreasonably dangerous or t e design was negligent. ! e plaintiff also may need to s ow t at a safer alternative design was available and feasible. )rentis v. 7ale 4fg. Co.# Design defects cases s ould be "udged under a negligence test$ weig ing t e ris.s of in"ury against t e costs of safer designs. 2is. utility test# a test used in product liability cases to determine w et er a manufacturer is liable for in"ury to a consumer because t e ris. of danger created by t e productHs design outweig s t e benefits of t e design. 63Brien v. 4us.in Corp.# A plaintiff must ma.e a prima facie s owing of a defective product$ based on t e ris. utility analysis. 0enerally spea.ing$ a plaintiff as t e burden of proving t at &1' t e product was defective@ &,' t e defect e5isted w en t e product left t e ands of t e defendant@ and &=' t e defect caused in"ury to a reasonably foreseeable user. -n a designIdefect case$ t e plaintiff bears t e burden of bot going forward wit t e evidence and of persuasion t at t e product contained a defect. !o establis a prima facie case$ t e plaintiff s ould adduce sufficient evidence on t e ris.Iutility factors to establis a defect.

*ome factors relevant in ris.Iutility analysis are# &1' ! e usefulness and desirability of t e product II its utility to t e user and to t e public as a w ole. &,' ! e safety aspects of t e product II t e li.eli ood t at it will cause in"ury$ and t e probable seriousness of t e in"ury. &=' ! e availability of a substitute product w ic would meet t e same need and not be as unsafe. &B' ! e manufacturerHs ability to eliminate t e unsafe c aracter of t e product wit out impairing its usefulness or ma.ing it too e5pensive to maintain its utility. &;' ! e userHs ability to avoid danger by t e e5ercise of care in t e use of t e product. &:' ! e userHs anticipated awareness of t e dangers in erent in t e product and t eir avoidability$ because of general public .nowledge of t e obvious condition of t e product$ or of t e e5istence of suitable warnings or instructions. &J' ! e feasibility$ on t e part of t e manufacturer$ of spreading t e loss by setting t e price of t e product or carrying liability insurance. 0#1 <arnin/s Defect 8ven w en a product as been properly designed and manufactured$ it still may not be safe for all uses. 4anufacturers and sellers must ta.e ade/uate steps to avoid unreasonable ris. to consumers. ! is means t at

w en a product could be dangerous$ manufacturers must warn t e consumer of dangers t at are not obvious and instruct on proper use. -f a satisfactory warning is in a prominent or proper location and t e consumer fails to read it$ t en t e consumer typically may not later collect damages from t e manufacturer for failing to provide ade/uate warning. -f$ owever$ t e warning is absent$ ard to see or unclear$ t en t e consumer may ave a viable case. ! e manufacturerHs failure to warn must be t e cause of t e consumerHs in"uries. Anderson v. 6wensICorning Fiberglass Corp.# 8vidence t at a particular ris. was neit er .nown nor .nowable by t e application of scientific .nowledge available at t e time of manufacture and?or distribution provides a defense to warnings defect cases. California cts$ eit er e5pressly or by implication$ ave to date re/uired .nowledge$ actual or constructive$ of potential ris. or danger before imposing strict liability for a failure to warn. *tate of t e art evidence may be relevant to t e /uestion of .nowability and s ould be admissible. 85clusion of t e evidence would ma.e t e manufacturer a virtual insurer of t e products safety. ! e warning defect relates to a failure e5traneous to t e product itself. % ile a manufacturing or design defect can be evaluated w?o reference to t e conduct of t e manufacturer$ t e giving of a warning cannot b?c t at warning re/uires a communication of somet ing to someone. *trict liability is not concerned w? t e standard of due care or t e reasonableness of a manufacturer3s conduct. ! e fact t at a manufacturer acted as a reasonably prudent manufacturer in deciding not to warn$ alt oug per aps absolving t e manufacturer of liability under a negligence t eory$ would not preclude liability under strict liability principles if t e trier of fact concluded t at$ based on information scientifically available to t e manufacturer$ t e manufacturerHs failure to warn rendered t e product unsafe to its users. +ote# %arnings is one factor to consider in t e ris. utility analysis$ but warnings alone will not save a product from being unreasonably dangerous. % en reasonable minds may differ as to w et er a ris. is obvious &no warning re/uired for obvious ris.s' or generally .nown$ t e "ury decides. 3. )roof ! ree t ings ) must prove# &1' t e product t at in"ured t e ) was in fact manufactured by D$ &,' product was defective and ) was in"ured as a result$ and &=' t e defect was present in t e product at t e time of t e sale. Friedman v. 0eneral 4otors Corp.# Circumstantial evidence of defects may be used to ma.e a prima facie case. A defect may be proven by circumstantial evidence$ w ere a preponderance of t at evidence establis es t at t e accident was caused by a defect and not ot er possibilities$ alt oug not all ot er possibilities need be eliminated.

4. Defenses 0A1 )laintiff9s #on!uct

Daly v. 0eneral 4otors Corp.# Comparative fault principles can be applied to strict products liability actions. ! e )3s in"ury must ave been caused by a Edefect$F in t e product. ! e manufacturer is not deemed responsible w en in"ury results from an unforeseeable use of its product. ! erefore$ loss s ould be assessed e/uitably in proportion to fault. Comparative negligence is a defense to strict liability. *trict liability was imposed against manufacturers to relieve consumers Efrom t e problems of proof in erent in pursuing negligence and warranty remedies.F Cts ave soug t to place t e burden of loss on manufacturers rat er t an Ein"ured persons w o are powerless to protect t emselves.F )3s own conduct$ relative to t e product$ is not allowed to escape une5amined$ and as to t at s are of )3s damages w ic flows from is own fault t ere is no reason w y it s ould be borne by ot ers. A system of comparative fault s ould be and is ereby e5tended to actions founded on strict products liability. )rinciples of comparative negligence e5pressed in t is decision apply to actions founded on strict products liability$ t ereby reducing plaintiffHs recovery only to t e e5tent t at is own act of reasonable care contributed to is in"ury@ in suc cases$ t ere e5ists no separate

defense of Kassumption of ris.K to t e e5tent t at suc assumption of ris. is a form of contributory negligence.! e separate defense of assumption of ris. in its form of contributory negligence is abolis ed. Ford 4otor Co. v. 4att ews# 4anufacturers are liable for reasonably foreseeable$ albeit abnormal$ uses of products. Alt oug misuse of a product t at causes an in"ury is normally a bar to strict liability$ it is said t at E! e manufacturer is not liable for in"uries resulting from abnormal or unintended use of is product$ if such use was not reasonably foreseeable. The issue is one of foreseeability and misuse may be foreseeable. ! ese are factual issues of foreseeability of a particular use t at are left to t e "ury. ! e tractor was designed to prevent its starting in gear. -t could be foreseeable by Ford t at one day a tractor operator mig t carelessly cran. t e engine w?o first ma.ing certain t at it was not in gear$ especially if e were aware of t e purpose of t e safety switc system. 8ven if )l were negligent$ suc negligence was reasonably foreseeable by Ford and is not a bar to an action based on strict liability resulting from a defective tractor. 0B1 )reemption an! Ot$er ?o&ernment Actions

4edtronic$ -nc. v. Lo r# ! e 4edical Device Amendments of 19J:$ a federal statute$ does not preempt a state commonIlaw negligence action against t e manufacturer of an allegedly defective medical device.

5. Defen!ants Ot$er t$an )rincipal ;anufacturers@ 7arm Ot$er t$an )ersonal In:ury 0A1 Ot$er 'uppliers of #$attels +ot every party in t e distribution c ain is necessarily sub"ect to strict products liability. ! e policy rationale is t at remote distributors are in no position to e5ert pressure on manufacturers to create safe products. )eterson v. Lou Bac rodt C evrolet Co.# A remote retailer$ w o outside of t e original producing and mar.eting c ain$ is not sub"ect to strict products liability. 0B1 'er&ices )roviders of services generally are not sub"ect to strict products liability. 8ven w ere t e services involve t e provision of a product$ suc as a pacema.er$ t e service provider is not an integral part of t e distribution process and e5cept. Hector v. CedarsI*inai 4edical Ctr.# )roviders of medical services are not sub"ect to strict products liability. 0#1 7arm Ot$er T$an )ersonal In:ury &1' 8conomic loss resulting from personal in"ury &i.e. lost wages' are recoverable in strict liability actions$ &,' economic loss w?o personal in"uries is limited &=' unless t e alleged defect creates an unreasonable ris. of in"ury to persons$ even t oug no one was actually in"ured &B' courts allow for damage to property under strict liability. 6. e/islation an! )ro!ucts ia2ility

4any states adopted statutes similar to t e 2estatement &*econd' of !orts < BG,A in t e 19:G3s. %it tort reform in t e 19JG3s$ states passed laws restricting t e scope of products liability in order to protect manufacturers and reduce liability insurance premiums. ! e federal government proposed a Uniform )roducts Liability Act in 19JJ$ w ic was adopted by some states and followed by courts in

ot er states in creating common law. 4ore tort reform legislation was passed in t e 19>G3s and 199G3s in furt er efforts to reduce insurance rates$ products manufacturers and promote fairness.