Beruflich Dokumente
Kultur Dokumente
Lamkin 2015
tort: (wrong); the law governs legal responsibility for wrongs people inflict on one another
Purpose
to impose legal responsibility for inflicting harms on others, and
to require those responsible for harms to compensate victims (damages)
o claims should be required to pay for damage done
to furnish victim of conduct with a remedy against the responsible party
Fairness
Whats fair to the parties?
Does deserve compensation?
Does desrve to compensate?
Was or better positioned to avoid the risk which produced the harm?
Effects on Society
How will a particular outcome affect future s and s?
What is the most efficient outcome?
What result will encourage people in invest the right amount of precaution to prevent harm to others?
Intentional v. Unintentional Torts
intentional torts: deliberate conduct battery, trespass, conversion
o distinct prima facie case consisting of certain things (elements of the claim) that must allege
and then prove in order to win the lawsuit
o can respond to prima facie case either by denying what has alleged or by raising an
affirmative defense
unintentional torts: harms caused by accident (inadvertently)
o strict liability: requires to pay for damages caused by an activity regardless of how carefully
the activity was conducted
o negligent liability: requires to pay only for harms caused by s failure to use reasonable care
BATTERY: the nonconsensual touching of, or use of force against, the body of another with the intent to cause
harmful or offensive contact
HOLDING: yes; said the contact took her by surprise, was not consented to and thus was offensive
transferred intent: If A attempts to commit a battery against B, but mistakenly hits C, A is liable to C.
NOTE: As , would argue Grabowski (no consent to post-affair sex); as , would argue Brzoska (no different touch than shes used
to); if the husband caused harm to the wife, he is liableif not, he is not liable
Elements of Trespass:
Intent: The intent required is merely the intent to enter upon the land, cause the entry, or remain.
s good faith (but erroneous) belief that he has a right to be there, or his reasonable mistake
concerning title, right to possession, consent, or privilege, is no defense.
R2d 164 Intrusions Under Mistake
Unlawful invasion:
R2d 168 Conditional or Restricted Consent
(1) Without s effective consent, or
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Conversion: The interference with personal property of another, to such an extent that is required to pay its full value.
R2d 217 Ways of Committing Trespass to Chattel: A trespass to a chattel may be committed by intentionally
a. Dispossessing another of the chattel; or
b. Using or intermeddling with a chattel in the possession of another.
R2d 218 Liability to Person in Possession: One who commits a trespass to a chattel is subject to
liability to the possessor of the chattel if, but only if,
a. He dispossess the other of the chattel, or
b. The chattel is impaired as to its condition, quality, or value, or
c. The possessor is deprived of the use of the chattel for a substantial time, or
d. Bodily harm is caused to the possessor, or harm is caused to some person or thing in which
the possessor has a legally protected interest.
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Necessity: may interfere with the s property rights if a reasonable person in the s shoes would believe such interference to
be necessary in order to avoid injury, which is substantially more onerous (or worse) than the action taken to avert it.
R2d 197 Private Necessity
1) One is privileged to enter or remain on land in the possession of another if it is or reasonably appears to be
necessary to prevent serious harm to
a. The actor, or his land or chattels, or
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Greer is distinct from Roberts due to the relationship between the parties; in Roberts, there was no liability because
was not s doctor at the time. In Greer, was s own doctor, was already in a vulnerable state (recovery) and the
conduct caused harm (uncontrollable shaking, need for psychiatric treatment).
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Pemberton is distinct from Muratore because in Muratore, knew was susceptible to emotional distress due to her
first refusal, but continued their behavior. In Pemberton, truthful information was not considered outrageous to .
Figueiredo-Torres v. Nickel (1991)
FACTS: and wife sought marriage counseling from ; started affair with s wife; began to demoralize and suggest
should leave his wife; sued for professional negligence and IIED
PH: trial court dismissed; app. court reversed
ISSUE: did relationship between and affect cause of action for IIED?
RULE: Where is in particular position to harass and cause emotional distress, conduct is carefully scrutinized.
HOLDING: Yes
NOTES: came out this way due to the relationship between and ; extreme/outrageous character of s conduct may arise
from abuse of a position or a relationship with the other person that gives one authority over the other or power to affect the
others interests; probably wouldnt have been outrageous if not for relationship between the twothe patientpsychologist relationship focuses directly on psyche; suffered a loss due to intentionally inflicted severe emotional distress
Criminal conversion: a tort which consisted of having a sexual relation with the spouse of another; amatory torts
included seduction, alienation of affections, breach of promise to marry
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NEGLIGENCE: The failure to exercise the standard of care that a reasonably prudent person would have exercised in a
similar situation; any conduct that falls below the legal standard established to protect others against unreasonable risk of
harm, except for conduct that is intentionally, wantonly, or willfully disregardful of others' rights; the doing of what a
reasonable and prudent person would not do under the particular circumstances, or the failure to do what such a person
would do under the circumstances.
NOTES: This case was retried and found for , as the jury found it was the storm itself that caused s insanity, as no careful and
prudent man could have done more than to care for his ship until overcome with physical and mental exhaustionto do more was
Suppose a surgeon at an understaffed hospital performs surgery for 48 consecutive hours; she then capitulates to
exhaustion or madness and commits an act of malpractice. This would not likely limit her liability, as it would give all
hospitals incentive to lower the standard of care. However, medical errors under circumstances of disaster will answer
to a lower standard of care. (Example: Hurricance Katrina)
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NOTES: fact that he could not read English should not require to put up barriers or to post signs in every language;
cannot be allowed to claim that the same standard the general population is held to does not apply to him.
Weirs differs from Lynch, as the in the latter case had a defect that excused him from being able to act prudently, but
in the former case, was aware of his limitations and thus should modify his own conduct accordingly (failure to do
so is negligent). Also, the in Lynch failed to warn , whereas in Weirs took all reasonable precautions.
Padula v. New York (1979)
FACTS: heroin addicts in rehab find chemical in print shop with warnings all over it; know its dangerous, but drink it
anyway; one dies, one goes blind; living one sued guards for negligence for allowing them in, not stopping the drinking
PH: judge gave verdict to ; SC affirmed
ISSUE: Are heroin addicts held to the same standard of reasonableness?
HOLDING: No. Verdict for affirmed.
NOTES: addicts lack the ability to control certain kinds of actions where they could get high, but might be dangerous; court would be less
likely to rule for addicts if and not ; was in s custody who had duty to protect and keep chemicals like these out of reach of addicts
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Typically, the standard of care is an objective standard. A stupid person is held to the reasonable care standard, but
when has a defect and knows of it, has duty to protect, as cannot be held to reasonable care standard. If knows
of his own defect, it is not an excuseneeds to take precautions to compensate.
Fredericks v. Castora (1976)
FACTS: in car that was hit by two trucks (); sued for negligence
ISSUE: Should professional truck drivers with much experience be held to a higher standard of care than the average driver?
HOLDING: No. Verdict for
NOTES: changing standard based on experience would be make having reasonably uniform standard impossible
Restatement (Second) of Torts 299A. UNDERTAKING IN PROFESSION OR TRADE
Unless he represents that he has greater or less skill knowledge, one who undertakes to render services in the
practice or a profession or trade is required to exercise the skill and knowledge normally possess by members of
that profession or trade in good standing in similar communities.
Comment b. Profession or trade. The sectionapplies to any person who undertakes to render services
to another in the practice of a profession, such as that of a physician or a surgeon, dentist, pharmacist,
occultist, attorney, accountant, or engineer. It applies also to any person who undertakes to render services
to others in the practice of a skilled trade, such as that of airplane pilot, precision machinist, electrician,
carpenter, blacksmith, or plumber
Kerr v. Connecticut (1892)
FACTS: deaf walking home next to trolley line; trolley
sounded horn, didnt hear; was hit and died; family
sued
PH: trial ct found contributory neg on ; SC affirmed
ISSUE: Is neg. even though used reasonable care?
RULE: Those aware of their defects have duty to take precautions.
HOLDING: No. Law requires use reasonable care that
a man under his circumstances (deaf) would.
NOTES: was aware of his deafness; had duty to
Davis v. Feinstein (1952)
FACTS: blind walking along with cane and fell in s
open cellar; claimed was the negligent one
PH: jury for ; App. Ct. affirmed
ISSUE: Should blind people be contributorily neg. when
exercising due care?
RULE: Those aware of their defects have duty to take precautions.
HOLDING: No.
Kerr did not do what reasonable deaf man would, while Davis took the due care a blind man would.
Restatement (Second) of Torts 298. WANT OF REASONABLE CARE
Comment d. Necessity that actor employ competence available. The actor must utilize with reasonable
attention and caution not only those qualities and facilities which as a reasonable man he is required to have,
but also those superior qualities and facilities which he himself has. Thus a superior vision may enable the
actor, if he pays reasonable attention, to perceive dangers which a man possessing only normal vision would
not perceive, or his supernormal physical strength may enable him to avoid dangers which a man of normal
strength could not avoid.
Illustration 1. A is driving a pair of well-broken horses. They become frightened and run away. A is unusually
strong and could by the exercise of reasonable care in using his full muscular power bring the horses under
control. He is negligent toward anyone run down by the horses if he fails to do so, although a man of ordinary
muscular strength would be unable to control the horses.
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Arroyo v. US (2011) SOCIAL UTILITY But this motivational system works only if potential injurers and
potential victims are capable of exercising the care of the average person, or if incapable can at least avoid situations
in which they are likely to cause or suffer injury. . . But a blind person, no matter how careful he tries to be, cannot
cross a street as safely as a sighted person unless he can afford to hire an escort. Holding him to the standard of care
of a sighted person would just discourage him from going out of his house, and this is thought an excessive cost (in
contrast to forbidding blind people to drive); it could lead to levels of social isolation that are no longer found
acceptable.
Short people (Mahan v. State): It is true that persons of small stature may and do lawfully operate automobiles, but if
that condition makes it more difficult for them to discover the presence of children, or objects in the highway, it
imposes upon them the duty of exercising greater watchfulness to avoid injuring others also in the lawful use of the
highway than would be necessary for one of normal stature.
Purtle v. Shelton (1971)
FACTS: 17-year-old shot 16-year-old hunting buddy
()
ISSUE: Is a minor required to use same care as adult with
rifle?
RULE: For child to be held to standard of care as adult, must be
participating in dangerous activity normally engaged in by adults.
HOLDING: No.
Remember! A minor can only be held to an adult standard of care if doing something that is both dangerous to others
and normally only engaged in by adults!
Courts typically follow these guidelines
with potentially negligent minors.
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Remember! When Williams v. Hays was tried a second time, it was found s condition arose in
the process of taking reasonable care and was, therefore, not held liable for negligence, as he
cared for the vessel until overcome with exhaustion impossible to do anything more!
NEGLIGENCE: RISKS AND PRECAUTIONS
The Hand Formula: Liability when the burden/cost of taking precaution is less than the expected cost of not taking
it.
B < PL = Liability
o B = burden or expense of adequate precautions
o P = probability of an accident occurring
o L = magnitude of harm
Goes to the standard of care: What precautions would a reasonable person have taken? Think of the
precaution(s) might have taken to reduce the likelihood of the accident and determine whether should have
taken precaution.
Remember! The Hand Formula is not law, nor is it used to instruct juries; it is simply a way of analyzing
cost.
Advantages of the Hand Formula:
o Structured analysis
o Formalizes institutions by drawing attn
to benefits of using reasonable care
o Reduces uncertainty
o Avoids allocation of resources to
non-beneficial undertakings
o Takes risks into account
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NOTES: this is where Judge Hand introduced the Hand Formula (burden of having bargee on board was lower than the cost of
injuries); court found it was a fair requirement that Conners have bargee on board during working hours; no excuse for bargee to be
gonehad he been there, could have gotten help for damage
NOTES: no evidence ignored duty to take all precautions to minimize perils; trolley wire placed so nobody standing on bridge/bending
over parapet could reach; could not have predicted point where accident like this would occur; no special danger here warned they would
need special precautions; insulation of all wires is impossible; Wright: trolley socially valuable; community decided risks were worth
Professor Richard Wright takes a different view from the Hand Formula. His theory suggests that:
It is not negligent to impose significant risks on others only when:
1) s are participating in the activity that is generating the risk, or
**If answering exam question
2) the activity being engaged in is socially valuable.
with Hand Formula, be sure to
give
Hand
Formula
Even then, risks imposed on others are only reasonable if the risks are:
calculation and the Wright
not too serious;
approach!**
necessary/unavoidable;
reduced to the maximum extent feasible without causing unacceptable loss in the desired benefit; and
significantly outweighed by the desired benefit.
Bolton v. Stone (1951)
FACTS: lived next to s cricket grounds, which were enclosed by 7 fence; hit with ball in her yard; evidence showed that on rare
occasions, balls had been hit over fence, but that none had caused injury before
ISSUE: Was liable for balls hit out of grounds, even though they had the 7 fence in place?
HOLDING: No. NL
NOTES: law of negligence more concerned with what is culpable than what is fair not guilty of culpable act or omission;
reasonable man would not have felt himself called on to either abandon the use of the grounds or increase the fence height
APPLYING HAND FORMULA: B was too higheven if L was high, P was low (no accidents like this before)
DISSENT: should not only take into account the remoteness of such an accident, but also the seriousness of consequences; would
not be right to taken into account difficulty of remedial measuresif cricket cannot be played safely, should not be played there.
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NOTES: blowing the horn would have been a tiny burden that would have greatly reduced the risk of all kinds of accidents.
Restatement (Third) of Torts 3. NEGLIGENCE
A person acts with negligence if the person does not exercise reasonable care under all the
circumstances. Primary factors to consider in ascertaining whether the persons conduct lacks reasonable
care are the foreseeable likelihood that it will result in harm, the foreseeable severity of the harm that
may ensue, and the burden of precautions to eliminate or reduce the risk of harm.
Compliance errors: failures to comply with an agreed upon standard of care; typically involve momentary
failures to take repetitive precautions (driver forgetting to look both was at intersection); occur frequently
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NEGLIGENCE: CUSTOM
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Ellis is distinguishable from Hooper because of the issue of foreseeability; in Hooper, it was foreseeable that radios
could have prevented exactly what happened, but in Ellis, everyone did the job the same way and it was
unforeseeable that it would cause Silicosis, especially so many years later.
MacDougall v. Penn. Power & Light (1933)
FACTS: was plumber hired to repair rain spout on roof; maintained unmarked fuse box on edge of roof, which conducted
electricity in wet weather; bumped head on box in the rain, was electrocuted, and fell off the roof, sustaining various injuries
ISSUE: Was liable for placing box in customary place for the industry and not marking it with a warning sign?
HOLDING: Yes.
NOTES: even if it followed custom, standard of due care is that which a reasonable person would exercise under the
circumstances; if box must be where people are likely to come into contact with it, there should be adequate warning given of its
In MacDougall, the PL was high enough to justify the precautions requestedthere was also no contractual
relationship or market relationship to keep safe, so the court provided a remedy where the market did not. In Ellis,
the PL was not high and there was a contractual relationship between and could have negotiated pay and
working conditions.
Rodi Yachts v. National Marine (1993)
FACTS: sent barge to TDIs dock to unload; s crew lashed barge and left; days later, before TDI unloaded, ship broke away and
caused more then $100k in damages to other dock and two boats
ISSUE: Were both and TDI at fault or just TDI?
HOLDING: Remanded for new trial. Compliance with custom is not a defense to a tort claim
NOTES: owners of damaged property have no contractual relationship to focus instead on the duties and TDI owed to each
other; both face potential liability to third parties; unable to determine what custom was broken; court needs to determine to see who is
Custom usually comes into play when parties are contractually obligated to one another!
NEGLIGENCE: CUSTOM IN MEDICAL MALPRACTICE
Brune v. Belinkoff (1968)
FACTS: dr gave 8mg of pontocaine to deliver baby, which
was custom dose in town50 miles away in Boston, customary
dose was 5mg or less; fell when she tried to get out of bed
ISSUE: Should the locality rule be used to determine
customary practice in the area and limit liability?
HOLDING: No. liable
While the doctor in Brune practiced in a town near a major medical hub (Boston), the doctor in Gambill practiced in a
rural area and thus would have less access and a modified standard of care based on the locality rule.
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NOTES: court determined locality rule is appropriate in regards to adequacy of facilities; not reasonable to hold hospitals in small poor
communities to same standard as big nice onescould make poor hospitals reluctant to provide care; information has become cheap,
but facilities have notpersonnel are considered a part of the facilities
The effect of the locality rule is to lower the standard of care in smaller towns; it is very rare to apply strict locality
in modern times. It has no effect on large, advanced cities and it makes it difficult to find an expert witness in small
areas that will testify as to the standard of care in that area.
In modern times, courts follow a less stringent locality standard modified locality which eliminates the problem of
finding expert witnesses.
NOTES: Alpine was 220 miles away with a population of 6k; population of El Paso was 314k; expert does not know local situation;
benefits from a national standard, while benefits from the locality rule!
NEGLIGENCE PER SE: court determines violated a rule; violation establishes s negligence as a matter of law
NOTES: the duty was owed to the city an did not create a standard of care owed to traveling public (therefore no negligence per
se); city did not intend for rule to keep sidewalk in front of business clean to put people on the hook for $400k in damages; dogs
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HAND FORMULA:
P: likelihood of barrel falling, causing harm: high
L: how much someone will get hurt: high
B: enough care in handling/barrier: not very high
*Shouldnt happen if using reasonable care
B>PL
Exclusive control: The instrumentality causing the injury must have been in s exclusive control.
Byrne v. Boadle
o Modern standard of exclusive control
o Must show that D is likely to be the only one to have undertaken or omitted the relevant acts
Widespread public access
o When numerous others have access o the place of the accident or the instrument involved, res ipsa is
generally unavailable
Larson v. Francis Hotel
FACTS: injured by an armchair that presumably fell out of
the hotel window.
ISSUE: Does res ipsa apply?
HOLDING: No. NL.
Multiple exception: Can use the doctrine to establish liability of multiple s in certain limited situations.
Brauner v. Peterson
FACTS: s cow escaped and entered roadway. drove his
car into cow. had no evidence to prove how the cow
escaped from s prop.
HOLDING: NL
RULE: The event must be of a kind not ordinarily occurring
in the absence of someones neg.
REASONING: Cow can readily escape from perfectly
adequate confines. The expected cost of a cow wandering
off is pretty low. Not enough to create assumption of neg.
Guthrie v. Powell
Bondfalls
Wolf
v.v.American
Otis
Elevator
Tract
Co.
Society
FACTS: Cow
through
2nd story
floor, injures .
FACTS:
was
working
as athat
contractor
when
a brick
FACTS:
was
on an elevator
went
intofor
a free
fall. Both
Otis
HOLDING:
Ct. said
appropriate
case
for
res
ipsa.
fell
from
the
construction
site
and
struck
him
on
the
head.
and
Adolphus
were
in
charge
of
maintaining
the
elevator.
had
REASONING: Cost of potential accident is so high that
No
proof ofaswho
dropped
the but
brick
orboth.
from where it fell.
no
evidence
to
who
was
neg.,
sued
should have taken all possible precautions. The right
sued 2/19Both
subcontractors.
HOLDING:
liable. the floor is zero.
number
of cows falling
through
HOLDING:
NL
REASONING:
s
hadw/joint
control
of the elevator.
Both
Need res
ipsa b/c it interacts
Hand
formula
The
REASONING:
Rescontrol.
ipsa loquitur
applies,here.
but
some
proof
shared
exclusive
Instrumentality
has
to
be
under
accident must
wouldnt
havetohappened
had been using
be given
exclusive
control
ofenable
! the jury to point out or identify
reasonable
care.
the author of the wrong. Each of the 19 contractors
Distinct
from Wolf, where subcontractors did not have
responsible only for the neg. of his own employees, not
exclusive
control. of the other contractors. Better for
for the employees
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R2d 303 Acts Intended or Likely to Affect the Conduct of the Other, a 3 rd person, or an Animal as to
Involve Unreasonable Risk
An act is negligent if the actor intends it to affect, or realizes or should realize, that it is likely to affect the
conduct of another, a 3rd person or an animal, in such a manner as to create an unreasonable risk of harm to
the other.
General rule: no duty to rescue
Justifications
Reflects tort laws commitment to promoting individual autonomy, not imposing choices on
people libertarianism
Costs of imposing duty to rescue could outweigh the benefits
o Rescuing puts rescuer in danger
o Duty would inhibit action because of fear of liability
o Impossible to sort out who had the duty which of the 30 people on the street had the
duty to keep the person from getting hit by a car?
o Would encourage carelessness on the part of potential victims because they count on
everyone else recuing them
o Might dampen altruism if its required
More problematic in the subclass of cases where rescue would be easy
Slippery slope issue would this principle require is to give all our money to the homeless
Yania v. Bigan
Stangle v. Firemans Fund Insurance Co.
jumped in s trench and drown after taunted him to
Diamond was stolen, asked receptionist to use buildings
jump in. did not attempt to save .
phone to call for help. Receptionist refused. sued
Nobuilding.
liability.
Taunting
and enticing an adult in full mental capacity does
No liability.
not
constitute
actionable
The above rule applies
onlynegligence.
to physical harm, not harm of
A property.
person does
not
have
to rescue another unless the
Not nature ofa duty
true emergency.
person
was
legally
responsible
for putting
themjust
in the
No relationship exists between parties,
they were
in
perilous position.
building conducting their own business.
Distinction from Globe
Globe: Liability
B/c policy concerns
Stangle: No Liability
Line drawing issue
Distinction from Plooth (save boat/fam, so used s dock)
Plooth: life in dangerstate of emergency
Stangle: not true emergencyno physical harm
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Hurley v. Eddingfield
, a Dr., refused to treat for no apparent reason. died.
No duty.
The physician is not required to practice on other terms than
he may choose to accept.
U.S. v. Lawter
s wife was killed when the coast guard () negligently
performed the rescue.
Liable.
The law imposes an obligation upon everyone who attempts
to do anything, even gratuitously, for another not to injure
him by the negligent performance of that which he has
undertaken.
Placed decedent in worse position & negligently brought
about her death.
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Frank v. U.S.
was drowned when being rescued by the only available
coast guard boat that happened to be ill equipped for the
rescue. The ship did not succeed in rescuing but did not
make the situation worse off.
Not liable.
A party is not liable for a diligent rescue effort, which is
ineffectual due to lack of adequate equipment, preparation,
or personnel.
No duty b/c undertook to rescue entire ship, did not increase
the risk, and materially changed his position. was not
relying on rescuers at the time of accident.
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Relationship
Ordinary
trespasser
Class
takes shortcut
across s property
Child
trespasser
takes shortcut
across s property
Business visitors;
or public if premises
are open to the
public
Social guests;
others present with
owners consent
Invitee
Licensee
TRESPASSER
Duties to trespassers
Law imposes affirmative obligations on landowners to use care toward those who come onto their property
May be held liable if do nothing when guest is injured by a hazard on the premises as a result
Landowner has no duty to trespassers; dont need to make property safe for them
General rules governing landowners duty of care
Generally no duty
If landowner sees trespasser or knows (or should know) trespassers are likely:
o Duty of ordinary care in carrying out activities
o Maybe duty to warn of hazardous conditions
o In some states, just a general duty to avoid inflicting injury by willful or wanton conduct
R2d 333 General Rule
Except as state in 334-339, a possessor of land is not liable to trespassers for physical harm caused by his
failure to exercise reasonable care
(a) to put the land in a condition reasonably safe for their reception, or
(b) to carry on his activities so as not to endanger them.
R2d 334 Activities Highly Dangerous to Constant Trespassers on Limited Area
A possessor of land who knows, or from facts within his knowledge should know, that trespassers constantly
intrude upon a limited area thereof, is subject to liability for bodily harm there caused to them by his failure to
carry on an activity involving a risk of death or serious bodily harm with reasonable care for their safety.
R2d 337 Artificial Conditions Highly Dangerous to Known Trespassers
A possessor of land who maintains on the land an artificial condition which involves a risk of death or
serious bodily harm to persons coming in contact with it, is subject to liability for bodily harm caused to
trespassers by his failure to exercise reasonable care to warn them of the condition if
(a) the possessor knows or has reason to know of their presence in dangerous proximity to the condition, or
(b) the condition is of such a nature that he has reason to know that the trespasser will not discover it or
realize the risk involved.
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Haskins v. Grybko
, while hunting woodchucks on his property,
accidentally shot who was hidden in the bushes.
No liability.
A person is not liable for negligence if the injured
person is a trespasser. He only has a duty to refrain
from intentional injury and from willful, wanton and
reckless conduct.
Herrick v. Wixom
snuck into circus w/o ticket and was injured when
set off a firecracker.
Liability.
Where a trespasser is discovered upon the premises by
the owner or occupant, any negligence resulting in
injury will render the person guilty of negligence
liable to respond in damages.
Presence of was known. No change in burden of
clown to take reasonable care since owed that already
to the audience.
Ryan v. Towar
, a kid, was injured while playing in an abandoned
pump house that he entered through a hole he had
made himself.
No liability.
The defendant is not at fault because they did not lure
the children; were using reasonable care to keep
people away from water wheel; kids broke in.
Cranky judge who hates children case.
More jurisdictions follow Keffe.
INVITEE
R2d 332 Invitee Defined
Public invitee or a business visitor.
o Comment l. If the invitee goes outside of the area of his invitation, he becomes a trespasser or a licensee,
depending upon whether he goes there without the consent of the possessor, or with such consent.
R2d 341A Activities Dangerous to Invitees
A possessor of land is subject to liability to his invitees for physical harm caused to them by his failure to
carry on his activities with reasonable care for their safety if, but only if, he should expect that they will not
discover or realize the danger, or will fail to protect themselves against it.
R2d 343 Dangerous Conditions Known to or Discoverable by Possessor
A possessor of land is subject to liability to his invitees for physical harm caused to his invitees by a
condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it
involves unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
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(c)
Rowland v. Christian
cut his hand on a water faucet in s apartment. knew
of the faucet danger but did not warn . argued that
knew of the faucet danger.
Cal. Supreme Court ruled that the traditional distinctions
between duties owed to trespassers, licensees, and
invitees had become obsolete.
Test: whether in the management of his property, he has
acted as a reasonable man in view of the probability of
injury to others, and, although the plaintiffs status as a
trespasser, licensee, or invitee may in the light of the
facts giving rise to such status have some bearing on the
question of liability, the status is not determinative.
Lordi v. Spiotta
P was killed when lighting the heater in Ds bungalow. D
thought he had turned off the heater earlier, but had not.
Because the heater was left on, there was an explosion when P
lit a match.
Liability.
1. A person is liable if his negligence creates a hazard on his
property that injures a guest.
o It was an affirmative act that created the danger as
opposed to failing to discover a danger.
o The distinction is that the defendant in Lordi acted
negligently and then directed the plaintiff to perform a
task that resulted from the defendants negligence.
Whereas, in the Davies case, it is not clear that the
defendant knew of the condition, or that it resulted
directly from his negligence. Furthermore, the
defendant in Davies did not instruct the plaintiff to
perform a specific act that resulted in her death.
50
BUT-FOR CAUSATION: the first issue in cause in fact (requirement than must show s negligence caused
his injuries, after has established acted negligently), in which shows the injuries would not have occurred if
had used due care. The standard is that injury was more likely than not caused by s negligence.
New York Central R.R. v. Grimstad (1920)
FACTS: Angell Grimstad was captain of barge, fell
overboard when tugboat hit barge; could not swim; wife ()
ran to cabin for a line, but he had drowned when she
returned; sued owner of barge (), claiming negligently
failed to provide lifesaving equipment on the vessel
PH: jury/trial court ruled for ; appeal reversed
ISSUE: Would a life buoy have saved s husband?
RULE: If s husband would have lived if not for s
negligence, is liable.
HOLDING: No; overturned a jury verdict! Proximate
cause of death was falling into the water; there is no way
to know if additional equipment would have prevented
his drowning.
NOTES: lost on causation: had she said they should have
had a large net around the boat, she would have lost on
breach of duty (as a net would have saved him, but is too
high a B to be within the reasonable standard of care; this
seems like a farfetched outcome with the evidence that we
havea life preserver would have probably saved him
seems like the biggest factor was how quickly he drowned
Gardner v. National Bulk Carriers, Inc. (1962)
FACTS: s decedent (Gardner) went missing from s
ship; he had last been seen six hours earlier; ship continued
on course and did not look for him; court exonerated ,
saying captain had acted reasonably, a ship had traveled 100
miles when Gardner was found missing and he was
probably dead
PH: trial court exonerated ; appeal reversed for
ISSUE: Was captain negligent in not searching for him?
HOLDING: Yes; while it is conceivable that Gardner
was dead, it is known with certainty that seaman often
survive for many hours after falling overboard. The
burden to search for him was very low, as only time
would be lost (maybe half a day); captain neglected his
duty to rescue.
NOTES: trial court said there was no reasonable way they
could have saved him (so unlikely they would have found him)
and their not going back was not the proximate cause of
Gardners death; causation in this appeal lies in the increased
certainty of Gardners death (If he wasnt going to die anyway,
he definitely will now!); failure to go back and look is a breach
51
recurring-miss problem: if courts always apply the traditional standard of causation (such as in cases like
Gardner and Haft), courts could potentially create a pocket of immunity, which would allow people to not
try to save someone, if it was unlikely they would actually be able to save them; thus, people would not
exercise as much care
52
53
Loss of Chance Damages Options: court will award one of three in the case of a loss of chance situation
o Full damages: if s neg. increased potential risk of death and patient dies, can collect wrongful death
damages
o Reduce damages to reflect patients chance of survival in the absence of negligence: if patient had a 30%
chance of survival without s negligence, can recover 30% of wrongful death damages
o Impose damages based on the share of risk created: Herskovits odds were 75 chances to die out of 100
situations; 14 of those chances were caused by s negligence; 14/75 is 19%; is liable for 19% of wrongful death
damages
Daugert v. Pappas (1985)
ALTERNATIVE LIABILITY: requires to bring forth all possibly responsible s; by bringing all potentially
culpable parties, shows a 100% chance one of them caused your injuries; the common law is more
comfortable shifting the burden of proof to (to show they did not cause the injury) when both s were
negligent.
54
55
56
(2) If two forces are actively operating, one because of the actor's negligence, the other not because of any
misconduct on his part, and each of itself is sufficient to bring about harm to another, the actor's
negligence may be found to be a substantial factor in bringing it about.
If s get to escape liability b/c exact sequence of events that are foreseeable doesnt occur, too few s
would be held liable
If like Polemis, too many s would be held liable
Courts try to strike balanceharm, force foreseeable
How would a court rule?
Depends on how court/jury frame foreseeable harm
o Explain how and would frame it
o **If given s approach and told to defend against it, say why is wrong
o s want to broaden frame
o s want to narrow frame
o ***The key is why it was neg. not to remove the harm, etc.
Connection / overlap between proximate cause and duty
Hard to distinguish proximate cause cases from duty cases
One difference is who decides
o Duty judges
o Proximate cause jury
Distinguish by thinking about what they focus on
o Duty asks to decide whether this should be liable to this or class of s (who question)
o Proximate cause asks the what question for what injuries should be held liable?
In re Polemis
Board falling and igniting the gasoline case.
Liability, falling of plank directly caused ship to explode.
Damage was direct result of negligence.
If the act would or mightcause damage, the fact that the
damage it in fact causes is not the exact kind of damage
one would expect is immaterial, so long as the damage
is in fact directly traceable to the negligent act, and not
due to the operation of independent causes having no
connection with the negligent act.
Not the current common law.
Kinsman Transit
The boat came loose, knocking other boats loose, piling up,
blocking and flooding the river.
Liable for flood damage.
A person is liable where the damage resulted form the same
physical forces whose existence required the exercise of greater
care than was displayed and were of the same general sort that
was expectable, unforeseeability of the exact developments and
of the extent of the loss will not limit liability.
Negligence: Continental (dock owner) supplied a defective dead
man, which negligence predates the onset of the accident why
Judge Friendly has trouble linking up the damage; Kinsman
didnt properly deploy the ships anchors once the accident had
begun; City didnt raise the drawbridge in time, which
negligence post-dates the onset of the emergency.
Doughty v. Turner
o Lid on cauldron fell into cauldron and caused an explosion.
o No liability.
o The kind of harm that occurred is the same kind that you would foresee from knocking the lid into the cauldron. (Good
argument, but did not win).
o Court says the damage had nothing to do with the agitation caused by dropping the lid into the cauldron.
o Yet, injury is of the same type as the foreseeable type of injury.
But they were products of two different forces.
Colonial Inn Motor Lodge v. Gay
o D backed into a heating unit at 2mph. This caused gas from the unit to collect in the hotel and ignite.
o Liability.
o If the defendants conduct is a substantial factor in bringing about the injury, it is not necessary that the extent of the harm or
the exact manner in which it occurred could reasonably have been foreseen.
o For liability use Kinsman: Foreseeable injury property damage, Foreseeable force backing into the property. Actual = the
same.
o Against liability use Doughty: Foreseeable injury crushed bricks, actual fire damage. Foreseeable force impact of car,
actual explosion.
DiPonzio v. Riordan
o An unoccupied car that was left running, rolled into P breaking his leg. Ds gas station had a policy that its patrons were to
turn off their engines while fueling. P sued D alleging that it failed to enforce the policy.
o Not liable.
o The defendants duty only extends to that which is within the scope of what is reasonably foreseeably.
o The policy was created for the foreseeable hazard that the running engine would cause an explosion, the hazard that occurred
was a rolling car causing a broken leg
o Stronger case for NL than Doughty.
United Novelty Co. v. Daniels
o P was instructed by D to clean a machine with gasoline. This was near a lighted gas heater. Gasoline fell on rat, rat caught fire
and ignited the fumes from the gasoline.
o Cause of accident?
59
R2d 457 Additional Harm Resulting from Efforts to Mitigate Harm Caused by Negligence
If the negligent actor is liable for anothers bodily injury, he is also subject to liability for any additional
bodily harm resulting from normal efforts of third persons in rendering aid which the others injury
reasonably requires, irrespective of whether such acts are done in a proper or a negligent manner.
R2d 460 Subsequent Accidents due to Impaired Physical Condition Caused by Neg.
If the negligent actor is liable for an injury which impairs the physical condition of anothers body, the actor
is also liable for harm sustained in a subsequent accident which would not have occurred had the others
condition not been impaired, and which is a normal consequence of such impairment.
60
o Standard: to be a superseding cause (and relieve an intial tortfeasor of liability), the intervening act
must be so highly extraordinary that antecedent negligence should be ruled out as a matter of law
as a substantial factor in causing the accident.
Invokes some notion of reasonable foreseeability
o Acts of God usually count as superseding causes
NOTE: cause in fact does NOT create proximate cause!
Can still find negligence even if act of 3rd party (intervening act) is intentional
Important if breaks causal chain or not
o Train hits carriage caseforeseeable that items would be stolen
o Other train casenot foreseeable someone would intentionally burn it down
R2d 448 Intentionally Tortious or Criminal Acts Done Under Opportunity Afforded by Actors
Negligence (paraphrased)
If A commits negligence that creates an opportunity for B to commit an intentional tort against C
Bs intentional tort is a superseding cause of Cs injury that absolves A of liability
Unless A should have realized:
1. The likelihood that his conduct might create that situation, and
2. That a person like B might take the opportunity to commit a tort or crime.
62
63
R2d 449 Tortious or Criminal Acts the Probability of Which Makes Actors Conduct Negligent
If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which
makes [A] negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not
prevent [A] from being liable for harm caused thereby.
64
entered
anCo.
industrial tank containing nitrogen gas in order to clean it. The gas caused him to become delirious.
Wagner
v. International Ry.
No
liability.
He
was
taken
to
the
hospital
bit
off apart
of because
a is
finger
belonging
to
a nurse
there.
Nurse
sued at
.
s
cousinliability
was thrown
off theand
train
on
the doors
were
leftefforts
open.
The
train stopped
and and the
Imposing
for unforeseeable
types
ofturn
harm
unlikely,
therefore,
tonegligently
evoke
greater
preventing
accidents.
Noconductor
liability. left the train to search for the cousin. fell off the bridge and sued the RR claiming that his injuries were attributable
The
problem of proving causation in such a case is a formidable one, and the plethora of potential defendants makes it difficult
to the same
act of negligence
that
his cousin
to fallthe
offparties.
of the train.
Whether
a dutyoriginal
exists depends,
in part, on
thecaused
relationship
between
(we should think) for an alarm company to estimate its likely liability even if it does foresee the kind of accident that occurred
Liability.
We
hold that did not owe a duty of ordinary care.
here.
Danger
invites rescue.
The wrong
thatatimperils
life isliability
a wrong
to theextend
imperiled
a wrong
also it
to was
his rescuer.
o Accepting
plaintiffs
argument
face value,
would
to thevictim;
world itatislarge,
because
conceivable, though
highly
unlikely,
Wells
wouldthat
have
anyone
he came into contact while in a state of delirium.
Rescuers
are within
thethat
class
of people
areharmed
foreseeable
in with
an actwhom
of negligence.
o doesn't
Publicdiscriminate
policy does not
support
imposition
of duty
in this
Law
between
rescuer
oblivious
to peril
andcase
the one who counts the costenough that the act is the child of
o
Proximate
cause
framework,
but
policy
concern
that
ASSUMPTION OF RISK: claims not that was negligent but that assumed the risk of the harm that
occurred and therefore should be barred from recovering from ; chose to encounter a risk negligently
created by
67
68
Tunkl Test:
(1) Business is subject of public regulation.
(2) Party seeking exculpation:
a. Provides service of great importance to public
b. Performs service for any (qualifying) member of public
(3) Because of essential nature of the service, party involving exculpation has decisive advantage of
bargaining strength.
(4) Release makes no provision whereby a purchaser may pay additional reasonable fees and obtain
protection against negligence.
(5) The person or property of the purchaser is placed under the control of the seller, subject to the risk of
carelessness by the seller or his agents.
Shorter v. Drury (1985)
FACTS: pregnant, fetus died; dr recommended procedure to remove; was Jehovah Witness; signed release for no blood
transfusions; procedure went badly, begged her to take blood; refused and died
ISSUE: Did waiver release from liability?
RULE: An exculpatory clause can absolve from liability out of his own negligence, but it must state that it releases the party from
liability for its own negligence.
HOLDING: No.
NOTES: found to have done operation negligently; agreement did not cover s negligence (would have been against
public policy if it did); court decided question of proximate cause (s refusal or s negligence) was a question for the jury
69
PRIMARY ASSUMPTION OF RISK: doctrine which prevents from recovering for injuries they suffer
when they freely undertake dangerous activities
Restatement (Second) of Torts 496G. BURDEN OF PROOF
If would otherwise be subject to liability to , the burden of proof of s assumption of risk is upon .
Restatement (Second) of Torts 496D. KNOWLEDGE AND APPRECIATION OF RISK
Except where he expressly so agrees, does not assume a risk of harm arising from s conduct unless he
then knows of the existence of the risk and appreciates its unreasonable character.
Murphy v. Steeplehouse Amusement Co. (1929)
FACTS: broke his kneecap when thrown from The
Flopper; had watched the ride before getting on
ISSUE: Did willingly participating bar s recovery?
RULE: One who takes part in such a sport accepts the dangers
therein so far as the dangers are obvious and necessary.
HOLDING: Yes. NL
NOTES: risk (falling) was obvious and knew that going in;
this kind of injury was foreseeable, even if this was the first
accident of this type; would have been different if the hazards
were unobserved or were obscured from view; saw them all
70
71
NEGLIGENCE IN SUMMATION
72
STRICT LIABILITY: liability imposed without regard to the actors state of mind or fault
Some activities are somewhat dangerous and, when injury results, one can be held liable for negligence, as
danger could have been minimized using due care. Other activities, however, are inherently dangerous and
are still dangerous even when all reasonable precautions are taken. These activities, when injury is caused,
can be cases for strict liability.
Strict liability creates incentive to not engage in ultrahazardous activity. engage in ultrahazardous
activity less, or take ultrahazardous activity elsewhere
NOTES: did not assume the risk from the uses for which built the reservoir had there been reciprocity of risk between and
, this would be a case of negligence; imposed the risk on purely for s own gain (for his own purposes); Cairns analysis
that strict liability applies when there is a non-natural use of the land by is ambiguous even today, as natural can mean just
about anything; this is a good case for strict liability because even if used all due care, accident still could have happened,
as large bodies of water like this carry risk of serious danger (very high L, even if P hard to determine); a case like this
differs from a highway accident even though driving is a very dangerous activity, it is common and the community benefits
from everybody driving here, building the reservoir was not a common activity and it was solely for s benefit
Crowhurst v. Burial Board (Exhequer, 1878)
FACTS: planted yew tree close to railing, grew over to a
horse, who ate it and died; did not know planted yew tree
PH: trial court for ; appeal affirmed
ISSUE: is tree planter strictly liable under Rylands?
73
74
NOTES: manufacturer of product is not considered to be engaged in abnormally dangerous activity merely bc product becomes
dangerous when it is handled or used in some way after it leaves his premises, even if danger is foreseeable; shipper held to
negligence standard, as spill was result of negligence somewhere throughout shipment; strict liability only applies when risk
cannot be eliminated through due care (could have been here); as for question of strict liability applying due to route through city,
manufacturer did not determine routeand even if they did, would have used more track (higher P even if lower L); Posner
thought it better if residents around rail yard moved; no more realistic to propose to reroute shipment of all hazardous materials
around Chicago than to propose the relocation of homes around rail yard to more distance suburbsprobably less realistic;
One economic rationale for strict liability is that it puts the pressure on parties to consider whether they
ought to be engaging in some other activity altogether; a negligence standard, by contrast, considers only
whether the activity the actor chose engage in was undertaken carefully.
Common to get summary judgment for in these cases; burden typically likes with when it is as easy as
This happened, did it.
Siegler v. Kuhlman (SC of Washington, 1973)
FACTS: drove truck/trailer of 9k gallons of gas;
performed all safety checks; pulled onto ramp, trailer jerked
loose; gas spilled and killed who drove over the puddle,
ignited it
ISSUE: strictly liable under Rylands?
HOLDING: yes
NOTES: gas in large quantity is ultrahazardous; no amount
of care can eliminate the danger; destroys evidence that
could be used to prove negligence
Distinct from Inidana Harbor, as actual transporter is
being sued here!
Klein v. Pyrodyne Corp. (SC of Washington, 1991)
FACTS: was GC hired to provide aerial fireworks on the
4th of July; mortar was knocked over, fired into crowd and
caused injuries sued
ISSUE: strictly liable under Rylands?
HOLDING: yes
NOTES: any time a person ignites rockets to blow them up
with large crowd present, a high risk of damage is created;
no way to eliminate risk with reasonable care
Some jurisdictions go the other wayusing fireworks on
special occasion can be considered common usage.
75
HOLDING: no; outside of the scope of foreseeable harm; mother minks intervention broke the chain of causation and therefore
required an allegation of negligence and not strict liability.
Miller v. Civil Constructors (Ill. App. 1995)
FACTS: firing range in rural area; struck by stray bullet
ISSUE: strictly liable under Rylands?
HOLDING: no
76
his is an example of vicarious liability: liability for one based on the wrongs of another.
The general rule is that an employer is not liable for torts committed by an employee while on a detour.
The rule finds its origins in Joel v. Morison (English case, 1834): The master is only liable where the
servant is acting in the course of employment. If he is going out of his way, against his masters implied
commands, when driving on his masters business, he will make his master liable; but if he was going on a
frolic of his own, without being at all on his masters business, the master will not be liable.
Classic case of frolic and detour is the employee who departs from the route assigned by the employer to pursue
his own private interests. Size of deviation needed to invoke respondeat superior is usually a question for the jury.
Konradi v. United States
A rural mailman was driving to work when he was in a car accident with . sued the United States. Rural mailmen were
required to drive their own vehicle for work and to drive in the most direct route to and from work.
Liability.
If it is true that one objective of the doctrine of respondeat superior is to give employers an incentive to consider changes in
the nature or level of their activities, the scope of employment can be functionally defined by reference to the likelihood that
liability would induce beneficial changes in activity.
o The Postal Services rule pretty much guarantees that its mailmen will drive to and from work, and by doing this it
increases the amount of driving compared to a system in which, since the mailman does not need to have his own car at
work, he can take a train or bus or join a car pool.
o If the Postal Service insists for times sake that the carrier always travel to and from work by the most direct route,
which may not be the safest route, the Service should be liable for the accidents that result from this directive.
Impose liability on employer when it would create an incentive to change their activities in a beneficial way. (Posners
economic theory)
77
It was left entirely to Molesworth to select the conveyance which he would use to transport the papers from the point of
origin to the subscribers front porches.
79