TORTS II - FINAL OUTLINE - SPRING 2011

NEGLIGENCE: 1. Duty of reasonable care (D created unreasonable risk of harm) 2. Breach of duty 3. Causation i. Cause in fact ("But-For" Test) ii. Proximate cause (Scope of liability) or ( "Direct Cause" Test and Foreseeability of Risk)? 4. Damages Negligence: 1. Duty of reasonable care (D created unreasonable risk of harm) i. Objective Standard = the reasonably prudent person standard ii. Subjective Standard for: minors, elderly, mentally disabled 1. Superior skills or knowledge = held to higher standard (EX: doctors/professionals) 2. Physical characteristics = minors, elderly, mentally disabled a. Minors = compared to children of a like age, experience, and intelligence (sub. and obj. but usually sub.) i. Exception: minors engaged in adult activities are treated as adults (obj. stnd) b. Elderly = only where old age was cause of a physical infirmity, held to a physical standard of care that can objectively be observed and measured c. Mentally disabled = liability determined by D's knowledge and foreseeability of D's conduct resulting in injury 2. Breach of duty i. Calculus of risk--> Learned Hand formula: Probability of accident X Likely resulting harm > Burden = Unrsble Conduct 1. Reasonably prudent person stnd = if conduct is such that reasonable person would foresee as involving a risk of harm then risk is unreasonable and conduct is negligent ii. Custom = way ppl usually behave in particular situation: "custom is floor, not ceiling" meaning start of something NOT maximum (not conclusive evidence of reasonableness) 1. Non-Compliance --> P shows custom as stnd; proves D did NOT adhere i. Jury believe custom is rsble --> custom supports that D had duty and is liable (is NOT conclusive) ii. D's lack of knowledge of custom in industry is NOT enough to prove noncompliance! 1. MUST show D should have known 2. Compliance --> D shows custom as stnd; proves he adhered to custom i. Jury believes custom is rsble --> custom supports defense EXCEPTIONS: medical malpractice cases the stnd of care = locality (small town), similar community (AZ/NM), national (U.S.) (conclusive evidence of reasonableness) iii.Negligence Per Se = violation of criminal statute if: (compliance w/ statute is NOT conclusive evidence of reasonableness) 1. P w/in class of indivs statute meant to protect? 2. P suffered type of harm statute specifically meant to prevent? 3. Statute established a stnd of conduct? - EX: Dram Shop Acts: a. CL = no duty/liability of D who supplied liquor to tortfeasor b. Modern = commercial vendor liable for injuries attributable to intoxicated patrons

c. Private parties (social hosts) i. adults as social host serving other adults = no liability (Majority) ii. adults as social host serving other adults = liability if host's service was reckless (Minority) iii. adults serving minors = liable (AZ) iv.Res Ipsa Loquitur = "the thing speaks for itself"; fact that accident happened is evidence of unreasonableness; applies if: 1. Injury would NOT ordinarily happen if D used ordinary care 2. D had exclusive control of instrumentality of injury 3. P did not contribute to the accident (contributory negligence) - Standard-->P must show more likely than not D's negligence caused injury i. Exception: if multi D's = burden shifts to each D to prove s/he was not cause of injury (Ybarra case; very rare) 3. Causation i. Cause in fact ("But-For" Test) 1. Slip and Fall = SINGLE CAUSE USE "but for" test = but for D's unreasonable conduct, injury would not have occurred i. Dangerous condition existed on premises ii. D knew or should have known of condition (constructive or actual knowledge) iii. D failed to use reasonable care to correct it iv. Cause in fact--> dangerous condition created by D's negligence caused the fall 2. Multiple causes = concurrent or joint i. Concurrent = several acts combine to create injury, none of acts standing alone is sufficient, "but for" any of the acts, injury would not occur ii. Joint causes = substantial factor test = D's unreasonable act more likely than other factors to have caused P's injury i. Several acts combine, any one alone would be sufficient to cause injury; any D's negligent act that was a material or substantial factor in causing injury then D liable 3. Loss of Chance/Opportunity = (gen. med mal cases) allows P to recover when D's negligence possibly, i.e. probability of 50% or less, caused P's injury i. Pure lost chance approach = more likely than not P would have suffered injury even if D NOT negligent (full damages) ii. Proportional approach = same as pure only P limited to damages equally % of chance lost X total damages i. EX: P total damages $100K; D lowered chance by 30% so P gets $100K X .3 = $30K iii. Substantial possibility approach = same as proportional only P must show "substantial" possibility that D's negligence caused injury and it does not have to be > 50% (possibly full damages depending on jury) ii.Proximate/legal cause ("Direct Cause" Test and Foreseeability of Risk) Limitation of liability gen rule: D liable for all foreseeable harm w/in scope of risk caused by negligent act Direct Cause aka "chain of causation"- injury results in natural and normal sequence of events w/o intervention of independent/intervening cause D liable for foreseeable harm so long as no independent/intervening cause Foreseeability of Risk - preponderance of evidence that facts and circumstances existed were a person of ordinary prudence would have reasonably foreseen injury would be natural and probable consequence of negligence

D owes a duty of care ONLY to those w/in reasonably foreseeable "zone of danger" (Majority) If D owes duty of care to someone, then owes duty to ANYONE who is in fact injured (Minority=AZ) Rescuer Doctrine - "danger invites rescue" D owes duty to rescuer but generally rescuer does NOT assume the risk of injury unless grossly negligent then act will be superseding (unforeseeable intervening cause) i. EXCEPTION: firefighters/police Rescuer status a party MUST show: i. D was negligent to person rescued ii. Negligence caused imminent peril or appearance of peril to person rescued iii. Reasonably prudent person would have concluded such peril/appearance of peril existed iv. Rescuer acted w/ reasonable care in effectuating the rescue Intervening Cause -normal or foreseeable consequence of a negligent act that causes harm to P = D generally liable Subsequent medical malpractice Subsequent accident (Marshall case) Negligence of rescuers (Exception: gross negligence - McLaughlin case) Superseding Act - unforeseeable or intervening act which occurs after D's neg. conduct that's extraordinary under the circumstances that's independent or far removed from D's conduct which breaks the causal connection cuz after D's neg. conduct = D is gen. NOT liable for: Intentional intervening tort (unless foreseeable) Criminal act (unless foreseeable - Brauer case) i. EXCEPTIONS: 1. D has duty to protect P against criminal conduct and fails to do so 2. D destroyed protection P erected around himself or his property (Brauer case) 3. D puts P in contact w/person D knows or should have known is likely to commit act 4. D has custody of person w/ dangerous tendencies, fails to restrain him iii.Multiple Tortfeasors 1. Joint and Several Liability - each negligent D is fully responsible for a P's damages that proximately caused inseparable harm. a. Injury is indivisible --> each tortfeasor liable for entire damage incurred, even if each acted independently i. P can get entire judgment from: any one D, party from each, or any combination 2. Several Liability - each negligent D is liable ONLY for identifiable portion of harm (separate injuries does NOT always mean they are divisible) a. Injury is divisible --> comparative fault = each D liable for their % of fault 3 Situations Joint and Several Liability Apply: 1. Tortfeasors act in concert 2. Tortfeasors fail to do a common duty to P 3. Negligence of several tortfeasors acting independently combines to produce an indivisible injury to P

Landowner's Duty: EXCEPTION to trespassers: attractive nuisance 1. Intelligent child 2. Generally, bodies of water are well known and NOT attractive nuisance! (Most J's)

Licensee (social guest) - someone who is on the land NOT for the benefit of the owner, rather, on the land for their own benefit (they are there w/ permission but ONLY for their own benefit *Status can CHANGE = A walks into store (invitee cuz for store owner's economic benefit) then asks if she can have some boxes (licensee cuz for her own benefit) and then goes into employee only area (trespasser cuz no permission) Was there a duty owed? - duty of reasonable care based on the standard of a reasonable, foreseeable person (Paulsgraf case) RULE as to foreseeable P: 1. Cardozo's view (Majority) - "zone of danger" - person is within the physical proximity where they could have been harmed but they were not. 2. Andrew's view (Minority) - if duty owed to anyone, then a duty is owed to anyone who is injured Landowner's Duty: (Majority) = P's status (Minority) = Duty of rsble care under circumstances First, determine the person's status: trespasser, guest, invited, have consent to be on land, etc. NO duty to trespasser if they are undiscovered 1. Trespasser --> NOTHING: If landowner aware of trespasser, landowner has a duty to warn and make safe any known artificial conditions that may involve serious injury/harm (serious = death) Express consent = Oral or written Implied consent = actions or past conduct Discovery = actual or constructive knowledge Actual knowledge - actually see a person Constructive knowledge - someone tells you abt it or you see evidence left behind by person EXCEPTION to trespassers: attractive nuisance - dangerous, artificial condition existing on property, landowner knows or has reason to know of the danger, danger due to child's inability (understanding due to age) to appreciate the risk, and risk outweighs the utility of burden to protect/fix condition. Attractive Nuisance Doctrine - requires landowners exercise ordinary care, to avoid harm to children, which is due to a rsbly foreseeable risk, caused by a dangerous artificial condition on the land where children are likely to trespass. ALSO, risk of injury MUST outweigh cost of remedying the dangerous condition! 2. Licensee --> WARN (social guests) - landowner has a duty to warn of known, non-obvious dangers but NO duty to inspect premises! 3. Invitee --> WARN, INSPECT, REPAIR; express or implied invitation to conduct biz w/ owner or land is open to public (public officials and utility workers gen. invitees) Duty to warn of known dangers, MUST inspect premises for dangers, and duty to remove/repair known dangers. **P can switch to trespasser, to invitee, back to trespasser, etc!!!** EX: business invitee staying after closing is then a trespasser or a person going in an area that is for employees only EXCEPTIONS: Public officials: (Majority) fire fighter rule - fire fighters and police are licensees = no recovery if injury caused by same conduct for reason they were called there to begin with Subsequent negligent acts = landowner may have a duty (Minority) fire fighter rule - rule is abolished --> reasonable standard of care under the circumstances Recreational users: = licensees (invited or permission to be on land even if there for some business transaction)

Criminal assailants: generally NO duty UNLESS business knows or has reason to know that criminal acts against its customers ON its premises are reasonably foreseeable = nature, similar criminal activities, location, prior incidents

Landlord's Duty to Tenant: (Majority rule) = NO duty of care to tenants or their guests EXCEPTIONS: Common areas = landlord liable for harm caused by dangerous conditions, if by reasonable care, could have discovered danger/condition AND made that danger/condition safe EXCEPTION: Voluntary repairs = if landlord volunteers to repair danger/condition they have to do so in a nonnegligent manner Hidden defects = not likely to discover by tenant w/ reasonable inspection that landlord knows or has reason to know of at time of leasing Commercial/Public use = must look at lease to determine if tenant has responsibility to make repairs; landlord has duty to repair/make safe and is liable for unreasonably dangerous conditions existing at time of leasing (warning of defect is NOT enough) (Minority Rule) - landlord is under duty of ordinary care to maintain premises Generally tenant owes a duty to the guest Duty to Third Person: Generally NO affirmative duty to act; ONLY duty to NOT interfere or prevent someone to help out that person (Happy jack case) EXCEPTION: Special relationship = duty to act (parent-child, employer-employee, teacher-student, retailer-invitee, doctor-patient, etc.) (Terasoft case) - doctor has duty to warn a foreseeable victim of known/predicted/diagnosed danger (Thompson case) - victim MUST be foreseeable; special relationship MUST exist; AND victim has to be identifiable Sometimes special relationship has to be based on MORE than a duty owed to general public --> duty to a particular/class of persons; volunteers = if duty assumed and P relies on that duty, it MUST be performed in a non-negligent manner Standard of care is objective as to a reasonable prudent person (look at what D knew or should have known) intoxicated = NOT a defense for negligence disabled ppl = standard of care for other ppl w/ same physical disability to determine reasonable conduct children = (Majority rule) subjective stnd of care = what is reasonable for children of like age, intelligence, and experience (Minority rule) - children under 7 are incapable of negligence; 7-14 they are assumed incapable but evidence can prove otherwise; over 14 they can be held to adult standard of care. EXCEPTION: child engaged in an activity normally pursued by adults or which adult qualifications are required = child held to adult standard of care; Mental illness/capacity = (majority rule) mental illness/capacity is irrelevant UNLESS it is foreseeable OR to such a degree that they do NOT have the mental capacity Breach: (D fell below standard of care and did NOT act like reasonably prudent person)

Misfeasance - acting wrongfully Non-feasance - failure to act or doing nothing Calculus of risk --> Learner Hands Theory - (Carol Towing case) burden is LESS than probability of injury/accident occurring TIMES likely resulting harm/injury B<P*L = D breached that standard of care Factors regarding risk: Gravity of the harm Social harm Extent conduct invaded another's interest v. social value of act/not acting Cost of burden Alternatives that could have achieved same end purpose Custom is the floor NOT the ceiling and is NOT determinative Negligence per se - (Majority rule) violates statute (usually criminal statutes) and two part test: (1) P w/in class of individuals statute was meant to protect? AND (2) P suffer the type of harm the statute was meant to protect against? DEFENSES to Negligence per se: RSTMT 288A (depends on jurisdiction) D did NOT have capacity/understand that compliance was required D was unable after reasonable care to comply Emergency existed that D did NOT create Compliance would involve greater risk of harm than non-compliance Most common example of negligence per se is DRAM SHAW ACT - traditionally D NOT liable; modern trend --> commercial vendor is liable for injuries contributed from intoxicated person (Majority rule) - social host NOT liable to guests (Minority rule) - IF social host was reckless/negligent in serving guests then liable Most J's find social host liable for serving to minors Res Ipsa Loquitur - "thing speaks for itself" 1.injury would NOT ordinarily happen absent someone's negligence 2.D had exclusive control over the instrumentality that caused the injury; 3.injury NOT attributable to P themselves, P MUST show more likely than not that D was likely to cause injury. Generally MUST prove each prima facie case for each D when multiple D's (Ibarra case = very rare) burden shifts from P to D; usually occurs in medical field; conspiracy of silence in med mal cases

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Negligence: Duty of Care Breach of Duty Causation Damages Was there a duty owed? - duty of reasonable care based on the standard of a reasonable, foreseeable person (Paulsgraf case) RULE as to foreseeable P: 1. Cardozo's view (Majority) - "zone of danger" - person is within the physical proximity where they could have been harmed but they were not. 2. Andrew's view (Minority) - if duty owed to anyone, then a duty is owed to anyone who is injured Landowner's Duty: (Majority) = P's status (Minority) = Duty of rsble care under circumstances First, determine the person's status: trespasser, guest, invited, have consent to be on land, etc. NO duty to trespasser if they are undiscovered

1. Trespasser --> NOTHING: If landowner aware of trespasser, landowner has a duty to warn and make safe any known artificial conditions that may involve serious injury/harm (serious = death) Express consent = Oral or written Implied consent = actions or past conduct Discovery = actual or constructive knowledge Actual knowledge - actually see a person Constructive knowledge - someone tells you abt it or you see evidence left behind by person EXCEPTION to trespassers: attractive nuisance - dangerous, artificial condition existing on property, landowner knows or has reason to know of the danger, danger due to child's inability (understanding due to age) to appreciate the risk, and risk outweighs the utility of burden to protect/fix condition. Attractive Nuisance Doctrine - requires landowners exercise ordinary care, to avoid harm to children, which is due to a rsbly foreseeable risk, caused by a dangerous artificial condition on the land where children are likely to trespass. ALSO, risk of injury MUST outweigh cost of remedying the dangerous condition! 2. Licensee --> WARN (social guests) - landowner has a duty to warn of known, non-obvious dangers but NO duty to inspect premises! 3. Invitee --> WARN, INSPECT, REPAIR; express or implied invitation to conduct biz w/ owner or land is open to public (public officials and utility workers gen. invitees) Duty to warn of known dangers, MUST inspect premises for dangers, and duty to remove/repair known dangers. **P can switch to trespasser, to invitee, back to trespasser, etc!!!** EX: business invitee staying after closing is then a trespasser or a person going in an area that is for employees only EXCEPTIONS: Public officials: (Majority) fire fighter rule - fire fighters and police are licensees = no recovery if injury caused by same conduct for reason they were called there to begin with Subsequent negligent acts = landowner may have a duty (Minority) fire fighter rule - rule is abolished --> reasonable standard of care under the circumstances Recreational users: = licensees (invited or permission to be on land even if there for some business transaction) Criminal assailants: generally NO duty UNLESS business knows or has reason to know that criminal acts against its customers ON its premises are reasonably foreseeable = nature, similar criminal activities, location, prior incidents Landlord's Duty to Tenant: (Majority rule) = NO duty of care to tenants or their guests EXCEPTIONS: Common areas = landlord liable for harm caused by dangerous conditions, if by reasonable care, could have discovered danger/condition AND made that danger/condition safe EXCEPTION: Voluntary repairs = if landlord volunteers to repair danger/condition they have to do so in a nonnegligent manner Hidden defects = not likely to discover by tenant w/ reasonable inspection that landlord knows or has reason to know of at time of leasing Commercial/Public use = must look at lease to determine if tenant has responsibility to make repairs; landlord has duty to repair/make safe and is liable for unreasonably dangerous conditions existing at time of leasing (warning of defect is NOT enough) (Minority Rule) - landlord is under duty of ordinary care to maintain premises Generally tenant owes a duty to the guest

Duty to Third Person: Generally NO affirmative duty to act; ONLY duty to NOT interfere or prevent someone to help out that person (Happy jack case) EXCEPTION: Special relationship = duty to act (parent-child, employer-employee, teacher-student, retailer-invitee, doctor-patient, etc.) (Terasoft case) - doctor has duty to warn a foreseeable victim of known/predicted/diagnosed danger (Thompson case) - victim MUST be foreseeable; special relationship MUST exist; AND victim has to be identifiable Sometimes special relationship has to be based on MORE than a duty owed to general public --> duty to a particular/class of persons; volunteers = if duty assumed and P relies on that duty, it MUST be performed in a non-negligent manner Standard of care is objective as to a reasonable prudent person (look at what D knew or should have known) intoxicated = NOT a defense for negligence disabled ppl = standard of care for other ppl w/ same physical disability to determine reasonable conduct children = (Majority rule) subjective stnd of care = what is reasonable for children of like age, intelligence, and experience (Minority rule) - children under 7 are incapable of negligence; 7-14 they are assumed incapable but evidence can prove otherwise; over 14 they can be held to adult standard of care. EXCEPTION: child engaged in an activity normally pursued by adults or which adult qualifications are required = child held to adult standard of care; Mental illness/capacity = (majority rule) mental illness/capacity is irrelevant UNLESS it is foreseeable OR to such a degree that they do NOT have the mental capacity Breach: (D fell below standard of care and did NOT act like reasonably prudent person) Misfeasance - acting wrongfully Non-feasance - failure to act or doing nothing Calculus of risk --> Learner Hands Theory - (Carol Towing case) burden is LESS than probability of injury/accident occurring TIMES likely resulting harm/injury B<P*L = D breached that standard of care Factors regarding risk: Gravity of the harm Social harm Extent conduct invaded another's interest v. social value of act/not acting Cost of burden Alternatives that could have achieved same end purpose Custom is the floor NOT the ceiling and is NOT determinative Negligence per se - (Majority rule) violates statute (usually criminal statutes) and two part test: (1) P w/in class of individuals statute was meant to protect? AND (2) P suffer the type of harm the statute was meant to protect against? DEFENSES to Negligence per se: RSTMT 288A (depends on jurisdiction) D did NOT have capacity/understand that compliance was required D was unable after reasonable care to comply Emergency existed that D did NOT create

Compliance would involve greater risk of harm than non-compliance Most common example of negligence per se is DRAM SHAW ACT - traditionally D NOT liable; modern trend --> commercial vendor is liable for injuries contributed from intoxicated person (Majority rule) - social host NOT liable to guests (Minority rule) - IF social host was reckless/negligent in serving guests then liable Most J's find social host liable for serving to minors Res Ipsa Loquitur - "thing speaks for itself" 1.injury would NOT ordinarily happen absent someone's negligence 2.D had exclusive control over the instrumentality that caused the injury; 3.injury NOT attributable to P themselves, P MUST show more likely than not that D was likely to cause injury. Generally MUST prove each prima facie case for each D when multiple D's (Ibarra case = very rare) burden shifts from P to D; usually occurs in medical field; conspiracy of silence in med mal cases

Causation: (MUST have cause in fact AND proximate cause) 1. Cause in fact aka actual cause - "but for" D's negligence the injury would NOT have occurred. Slip and Fall cases = see slides; MUST prove: Dangerous condition existed on the premises Reasonable care to correct it Condition caused the injury EXCEPTION: (Multiple D's) = Substantial factor - if multiple acts have combined and any one alone would be sufficient to cause injury/damages, D is liable if their specific act was material or substantial factor in causing the injury/damages Lost Opportunity/Chance = "but for" D's negligence, the chance of recovery would NOT have been lost; gen used in med mal cases Pure - more likely than not P would have suffered injury even if D was NOT negligent Proportional - P's damages are limited based on percentage of lost chance that was caused by D Acting in Concert - when 2 or more ppl acting together/in concert, regardless of who caused the injury ALL D's are liable Enterprise Theory - (industry wide theory) If P knows P did it but can't prove one D is liable, then ALL D's are liable (manufacturing cases usually w/ smaller number of D's) Alternative Theory - (Somers v. Tice) multiple D's are negligent and P can prove injury resulted from their actions but P can't prove injury resulted in one of D's actions; then burden shifts to D's, and EACH has to prove they were NOT actual cause of injury in order to NOT be liable; MUST try to figure out (using due diligence) who is liable before burden shifts Market Share Liability - burden shifts to EACH manufacturer to prove their product did NOT cause the injury If D's CANNOT prove it was not their product, they are liable for damages determined by percentage of their product's market share 2. Proximate cause - foreseeability AND direct cause Limits potentially unlimited liability in terms of fairness in holding D responsible General rule - Risk rule or scope of risk rule - D liable for foreseeable harm w/in the scope of the risk or harm resulting from NOT acting or for acting wrongfully) Direct cause - D still liable if there is an intervening cause that is NOT totally unforeseeable or independent intervening cause - some other circumstance/force that comes into play = D still liable Intentional tort is generally intervening cause Rescuers generally foreseeable

Subsequent negligence - generally foreseeable; medical negligence at hospital after injury/act superseding act - If harm is so totally different from risk of that conduct or intervening cause is so different that it will rise to the level of superseding act = D is NOT liable! superseding acts - generally unforeseeable like criminal acts UNLESS: D has duty to protect against criminal act D put P in contact w/ someone they knew or should have known that would create that criminal act D had custody of person committing criminal act and failed to control/restrain bad act

PROXIMATE CAUSE: 1. DIRECT CAUSE: Rescue Doctrine - "danger invites rescue"; foreseeable that a rescuer will come to aid Intervening cause = even if rescuer is ordinarily negligent If rescuer is GROSSLY NEGLIGENT = superseding act D owes a duty of care to the rescuer 2. FORESEEABILITY: Foreseeability - foreseeability of resulting harm that arises from the scope of the risk or danger that D created If harm too unforeseeable it can be a superseding event

Egg Shell Plaintiff Doctrine - if physical injury is unexpected and you have an egg shell P = D is still liable Thin Skinned Plaintiff Doctrine - same as egg shell P but deals w/ mental illness

DAMAGES: (actual harm or injury) negligence = compensatory or punitive damages 1. Special Damages - ECONOMIC DAMAGES = lost profits, lost wages/future earnings, medical expenses (past, present, future) i. Present Value Doctrine - P receives an amt that, if securely invested, would produce the income that jury wishes P to have; total award amount = award amount + interest (discount award amount to PV to avoid an excess award) 2. General Damages - NON-ECONOMIC DAMAGES = pain and suffering, loss of enjoyment of life (must be aware/cognizant of it; McDugal case), loss of consortium/companionship = loss of companionship/benefits one party is entitled to receive from another (generally limited to spouses but some J's allow parents and children) 3. Punitive Damages - seek to deter/punish and awarded if D's conduct = "wanton and willful," reckless, or malicious (pg. 321 factors for punitive damages regarding products liability) i. Marketing and enterprise? ii. Conduct of company? iii. Gore guideposts: (regarding egregious/excessive punitive damages) (State Farm case) Reprehensibility of D's conduct a. Harm physical or economic?

b. Conduct wreaked of indifference? c. Target of conduct had financial vulnerability? d. Repeated conduct or one time thing? e. Harm intentional, malice, deceit or an accident? Disparity btwn P's harm and punitive damages awarded Diff btwn punitive damages awarded and civil penalties available by law

**Nominal Damages = NOT part of negligence MULTIPLE TORTFEASORS: Doctrine of Avoidable Consequences aka Mitigation - P has duty to mitigate damages by taking reasonable steps to do so D has burden of proving P's conduct was unreasonable (didn't go to doctor or have treatment when they should have) Traditional CL rule = Collateral Source Rule - damages awarded to P are NOT offset by payments they have already received as a result of the injury (some J's allow and some do not) (i.e., insurance payments, workers compensation, etc.) Minority rule for damages w/ multiple D's: Joint liability - injury is indivisible btwn D's so all D's liable; P has right to get award from anyone (either all from any 1 D or amt from each D) Majority rule for damages w/ multiple D's: Several liability - injury is divisible btwn D's according to proportion they are liable for = comparative fault

Indemnity - the right of a party who is secondarily liable to recover from the party who is primarily liable for reimbursement of expenditures paid to a third party for injuries Contracts - gen. based on K where insurance co. pays for your claim and then seeks money from you Vicarious liability - employer liable for employee's negligent acts and then employer can seek money from you (LAST SEMESTER) Strict products liability - product seller, who is NOT otherwise at fault but had to pay, can seek money from the manufacturer who caused the problem (i.e. guy buys can of beans at grocery store, chips tooth on stone in can, and can sue grocery store and manufacturer; if grocery store pays part of that award and were not at fault, they have right of indemnity against manufacturer) Contribution - multiple D's and one of them paid more than they were actually liable for so that D can seek money from the other D's Proportional - (Majority rule) each D is ONLY liable for his fault Pro Rata - (Minority rule) damages divided equally among D's

SPECIFIC TYPES OF NEGLIGENCE: Professional negligence: learner professionals have higher stnd of care than average person Licensed - stnd of care compared with other licensed members in good standing in that profession or geographic area Specialist - stnd of care possessed by other specialists Medical malpractice: i. Locality - other dr's/lawyers in that town or rural towns ii. Similar Community - other dr's/lawyers in that state

iii. Nationally - other dr's/lawyers nationally in U.S. Informed Consent Doctrine - dr's have duty to disclose material risks to patient (risk of being treated and NOT being treated) P MUST prove they would NOT have consented IF they had known of that risk Minority rule = subjective stnd; P would NOT have consented Majority rule = objective stnd; reasonable patient would NOT have consented AND P claims they would NOT have consented Defenses: Risk was gen. known by lay person Immediate need/emergency (usually when patient is unconscious or incapacitated) Disclosure would be detrimental to P (psychologically/emotionally distraught/upset); ct's gen. go w/ dr.'s professional judgment Legal Malpractice - stnd of care = compared w/ members of that profession who are licensed and in good standing w/in that J (state generally) Model rules for professional conduct = evidence of negligence but NOT per se negligence Majority -P MUST prove: Would have won the case (if attorney was NOT negligent) Would have collected the award Minority - D's affirmative defense that P would NEVER have collected even if they had won Negligent Infliction of (Severe) Emotional Distress - (NOT THE SAME AS PAIN AND SUFFERING!!) still have to prove basic elements of negligence AND: Foreseeability of P First determine if you have direct victim or bystander? CLASS 12 NOTES Direct victim: Minority - Impact rule - P cannot recover UNLESS somehow physically impacted regardless if injury was foreseeable EX: P nearly run down by carelessly driven stage coach which comes close but never touches P = No recovery; but if mud was splattered on P as it passes = recovery Majority - (Palsgraff case CLASS 5 NOTES) physical manifestation of the distress = recovery Zone of danger/impact - P cannot recover UNLESS somehow physically impacted cuz P w/in foreseeable zone of danger EX: P suffers miscarriage as result of distress caused by near miss w/ stage coach but no physical manifestation = no recovery EXCEPTIONS: no physical harm required IF: Negligent notification of close relative's death Negligent handling of close relative's corpse Phobia cases --> fear of latent problems after exposure due to D's negligence EX: Snowmen of Grant Central case = gen. even if P can prove impact/exposure, CANNOT recover under NSIED w/o physical harm or develop symptoms of disease Bystander: Majority - physical manifestation of the distress = recovery Zone of danger/impact - P NOT physically impacted but w/in zone so as could have been (foreseeable P) Minority (Thing case; narrows Dillon factors) P closely related to victim P MUST be at scene at time injury occurs AND aware of injuries being caused to third party

P/Bystander suffered severe emotional distress that is more than what a disinterested witness would experience but NOT abnormal to the circumstances Dillon factors (MUST KNOW NAME OF CASE!) 1. P near accident 2. P closely related to victim 3. Shock resulted from direct emotional impact from the sensory and contemporaneous observation of the accident

Type of harm resulted Survival statute - COA survives after death of one of the parties and action gen. brought by administrator of deceased/executrix Damages = what the deceased suffered and would have asked for Wrongful death statute - Gen. brought by decedent's beneficiaries Damages = Loss of consortium; what beneficiaries suffered

DEFENSES: Contributory negligence - (Minority) - complete bar to recovery no matter what percent P is liable/fault to D (ct's gen. do not like contributory negligence) (Burden of proof --> D to show P's neg. was actual + proximate cause of P's injury) EXCEPTION: Last Clear Chance Doctrine - D was last in chain of causation and failed to act reasonably to avoid harm at time of injury Comparative negligence/fault - (Majority) - does NOT completely bar damages but P's damages are reduced based on their proportion/% of fault Pure: even if P more at fault than D, P can still recover; AZ --> NO last clear chance (Minority) Modified: either 50% = no recovery if P equally at fault; or 51% = no recovery if P is more at fault (Majority) Slight gross: if P's fault is slight when compared to D's fault = P can still recover (only 2 states use) Assumption of risk - P voluntarily and knowingly knew or had constructive knowledge of risk Traditionally = complete bar to recover damages MODERN = gen. a factor under comparative negligence in determining who is at fault No assumption of risk if D's conduct left P w/ NO reasonable alternative to escape harm or if D infringes on P's property Implied Primary: gen. NO duty owed if risk is inherently dangerous (sporting event injury) Implied Secondary: reasonable existence of preventive measure AND if P had a choice/alternative = no recovery (sat behind screen at baseball game or sat on baseline and got injured) NOTE 4 Statute of Limitations - starts to run when harm happens from negligence Statute of Repose - starts to run for another reason articulated in statute (often when defect product is sold) Tolling - limitation stops for specific reason then starts again (gen. paused until minor reaches age of majority or incompetent ppl) Medical Malpractice has different rules for tolling and SOL: Discovery Rule - either when discovered the problem OR should have discovered the problem = SOL starts running Immunities:

Parental - gen. parents immune from being sued by their children EXCEPTIONS: if child injured working for parent's commercial business = parents liable car accident = parents liable Charities - NOT immune Governmental - discretionary or ministerial act? Discretionary - act involving formation of a policy = municipality IS immune Ministerial - act carrying out that policy = municipality NOT immune UNLESS statute/regulations telling employees how to properly carry out policy Pg. 518 exceptions to federal torts claim act = just be aware of

PRODUCT LIABILITY: CANNOT SUE FOR PURE ECONOMIC LOSS for loss of product itself; MUST have either personal injury or property damages other than for loss of product itself!! What is the product and what is the defect? Three theories to sue under: Negligence - regular elements but duty = reasonable manufacturer instead of reasonable person; breach = product was unreasonably dangerous; intermediaries are generally NOT liable if all they did was fail to discover defect; causation = actual + proximate(substantial rlshp) Breach of Warranty - K law and warranty must be state of the bargain meaning opinions are NOT warranties Express: given by merchant or consumer either orally or in writing; represent goods have certain qualities and absent them buyer can sue Implied: 2 types Merchantability: MUST be merchant making sale of that kind of goods and implies warranty in product that it is safe and fit for ordinary purpose of use Fitness for Purpose: Involves consumer reliance on product and merchant or consumer who sold product MUST have known or had reason to know of particular purpose product is to be used and buyer relying on seller's skill/judgment in supplying product Product sold "as is" = no implied warranty Disclaimer for liability of personal injuries = gen. NOT allowed Strict Liability - MUST prove negligent elements but duty is strict, meaning product is safe P Must Prove: Defect existed Defect caused P harm Defect at time left manufacturer Product part of healthcare service is NOT a seller! Seller's of used products are gen. NOT liable Manufacturing defects: product differs from rest of product line at time left manufacturer Design defects: all products meant to be that way but blueprint was wrong Failure to warn: lack of warning or inadequate warning of risk that makes safe product unsafe Gen. NO warning required if danger is obvious/overt Comment K: warnings req. for prescription drugs Learnered Intermediary Rule - manufacturer has duty to warn DR ONLY and DR has duty to warn the patient Comment J: allergies Misuse of product is foreseeable = manufacturer or seller may have breached their duty Pure Economic Loss NOT allowed for damages to product itself but allowed for other property damages TESTS for determining whether product is unreasonably dangerous:

Consumer Expectation Test: product is unreasonably dangerous beyond that which an ordinary consumer would expect Risk Utility: gravity of risk or likelihood of harm, burden, consumer's choice, availability of safer product Wade Factors: another form of risk utility but add the cost of avoiding harm Usefulness and desirability of products - to user and public as a whole Safety aspects of product - likelihood it will cause injury and probable seriousness of injury Availability of substitute which would meet same need and not be as unsafe Manufacturer's ability to eliminate unsafe character of product w/o impairing its usefulness or making it too expensive User's ability to avoid danger by exercising care in product use User's anticipated awareness of dangers inherent in product and their avoidability Feasibility, by manufacturer, of spreading loss by setting price of product or having liability insurance

Defenses: Negligence = gen. defenses Breach of warranty = MUST be more than failure to discover or guard against defect; allows assumption of risk ONLY if P knows of defect and still uses product; seller is req. to give buyer notice w/in reasonable time of defect Strict Liability = same as breach of warranty; gen. NO assumption of risk but misuse of product could rise to level that could bar recovery State of art = safer alternative available at time