TORTS

FALL 2011 PROF. FELIX CHANG Outline

I) Intentional Torts a) Intent i) Most courts follow Restatement def.: either that the defendant desires or is substantially certain the elements of the tort will occur ii) Mistake doctrine if a defendant intends to do acts which would constitute a tort, it is no defense that the defendant mistakes the identity of person or property he acts upon or believes incorrectly there is a privilege iii) Insanity and infancy neither insanity or infancy is a defense for intentional tort; however, if defendant is extremely mentally impaired or very young, they may not possess actual intent b) Battery i) Battery occurs when defendants acts intentionally cause harmful or offensive contact; accidental contact must be analyzed under negligence or strict liability ii) No intent to harm required; only that the defendant intend to cause harmful or offensive contact (Vosburg v Putney) iii) Even trivial offensive contact can constitute battery iv) Defendant need not actually contact victim, only be the proximate cause of the contact v) Elements of battery: (1) Intent actor need not intend the specific harm that results from unwanted contact, but only to commit act of unwanted contact, transferred intent applies (a) Defining intent: (i) Garratt v. Dailey - Intentionality is central to the tort of battery, and while a minor who has committed a tort with force is liable as any other would be, a plaintiff must establish that the defendant committed his or her act for the purpose of causing the harmful contact or with substantial certainty that such contact will result. (ii) White v. Muniz - A jury, as trier of fact, may conclude that a mentally deficient person is liable for tortious conduct; however, in so doing the jury must find that the actor intended offensive or harmful consequences. (b) Child liability (i) In most states children may be liable for torts as long as injured plaintiff can prove the required elements, including intent (ii) Particularly young children are conclusively presumed to be incapable of harmful intent. A few states use particular age (often 7) to bar liability (2) Contact non-consensual contact may be made with either a person or that persons extended personality (yanking a necklace off without actually touching victim) (3) Harm physical injury not required, plaintiff must prove an unlawful and unpermitted contact with his or her person or property in a harmful or offensive manner (4) Damages vi) Cases: (1) Snyder v. Turk - An actor is subject to liability to another for battery if (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) an offensive contact with the person of the other directly or indirectly results. (2) Cohen v. Smith - When considering a motion to dismiss, the court must view all properly pleaded facts in the light most favorable to the plaintiff; a court may only dismiss for failure to state a cause of action, based solely on the pleadings, only when it is clear that the alleged set of facts cannot be proven. (3) Mullins v. Parkview Hospital, Inc. - Battery requires a harmful or offensive touching, without consent, with the intent to cause the resulting harm or offense. (4) Vosburg v. Putney - In actions for assault and battery, Plaintiff must show either that the intention was unlawful, or that Defendant is at fault. The wrongdoer is liable for all injuries resulting directly from the wrongful act whether they could or could not have been foreseen by him. (5) Leichtman v. WLW - The blowing of smoke on ones person meets the requirements of a cause of action for battery because, however trivial the incident, when the elements of the cause of action are met (in this case battery, i.e., when the defendant acts intending to cause an offensive or harmful contact and an offensive or harmful contact actually results) the court must permit a cause of action. c) Assault i) Assault occurs when defendants acts intentionally cause the victims reasonable apprehension of immediate harmful or offensive contact (1) Restatement removes the requirement that apprehension be reasonable

Defendant must desire or be substantially certain that her action will cause the apprehension of immediate harmful or offensive contact iii) Victim must perceive that harmful or offensive contact is about to happen to him iv) Apprehension must be of imminent harmful or offensive contact v) Imminent apprehension does not require victim to be in fear vi) An assault made conditional on the victim's noncompliance with an unlawful demand still constitutes an assault, even if the victim is confident no assault will actually occur if the victim complies with the unlawful request. vii) Cases: (1) Cullison v. Medley - Assault is found where one intends to cause a reasonable apprehension of imminent harmful or offensive contact in another. d) Trespass to chattel and conversion i) Trespass to chattel intentional interference with the right of possession of personal property (1) Defendants acts must intentionally damage chattel, deprive possessor of its use for a substantial period of time, or totally dispossess chattel from victim (2) Does not require defendant to act in bad faith or intend to interfere with rights of others; it is sufficient that the actor intends to damage or possess chattel which is in fact properly possessed by another (3) Cases: (a) School of Visual Arts v. Kuprewicz (p 70) - a former employee caused large volumes of pornographic emails and unsolicited job applications to be sent to P, thereby, severely limiting P's hard disk space and drained processing power. The court held that these facts, if true, would constitute a valid claim for trespass to chattels by harming "a materially valuable interest in the physical condition, quality, or value of the chattel" or depriving owner of the use thereof for "a substantial time. (b) Intel v. Hamidi (TWEN) - Ds emailing Ps other employees did not constitute a trespass to chattel because there was no harm. This case differs from the CompuServe case where bulk emails were being where interfering with the computer system/server. This case differs because there was no harm (no resulting problem with the server or the system due to Ds emails). The court rejected Ps claim that Ds emails caused harm because there was no proof that it caused any problems with Intels property (i.e. server). If the court had ruled in favor of P, the Californi tort law would be extended beyond its current perimeters. ii) Conversion intentional exercise of dominion and control over chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of chattel (1) Only very serious harm to property or other serious interference with the right of control constitutes conversion; less serious may still be trespass to chattel (2) Purchasing stolen property, even if in good faith, constitutes conversion by both seller and innocent buyer (3) Cases: (a) Unruh-Haxton v. Regents of UC (p 68) statute of limitations did not apply to patient complaints that physicians at a fertility clinic committed intentional torts by stealing the patients genetic material for undisclosed uses. Trial court erred in concluding that widespread media coverage of the fertility clinic theft issues established the plaintiffs constructive suspicion for purposes of their discovery of their injuries. (b) Moore v. Regents of UC (TWEN) - A claim for conversion does not lie for the use of a plaintiffs bodily tissue in medical research without his knowledge or consent. Under the duty to obtain informed consent, a doctor must disclose his intent in using a patient for research and economic gain. e) Defenses to Intentional Torts (Privileges) i) Self-defense (1) Privileged to use reasonable force ti defend against harmful or offensive bodily contact and against confinement (2) Defendants privilege extends only so far as reasonably necessary to prevent death or serious bodily harm (3) Covers only reasonable force; any excessive force is unprivileged (4) Provocation is not sufficient to raise the self-defense privilege, e.g. insults and arguments ii) Defense of third persons (1) One may defend others on the same basis that he may defend himself or herself iii) Defense and repossession of property (1) Katko v. Briney owner of premises is prohibited from willfully or intentionally injuring a trespasser by means of force that either takes life or inflicts great bodily injury; and therefore a person owning a premise is prohibited from setting out spring guns and like dangerous devices which will likely take life or inflict great bodily injury for the purpose of harming trespassers (2) Brown v. Martinez force used must be of a kind appropriate to the defense of the property. Since the law has placed a higher value on human safety than upon mere rights in property, it is the accepted rule

ii)

that there is no privilege to use any force calculated to cause death or serious bodily injury where only the property is threatened. iv) Consent (1) Relationship of parties: can be important to determining apparent (implied) consent, also consider power relationships (a) Robins v. Harris corrections officer and inmate, sexual acts, inmates alleged consent to the sexual contact is no defense (power relationship). Incapacity of adult to consent is usually established only by showing that the adult could not manage his own affairs, or that he did not understand the nature and character of the act. (b) Ashcraft v. King woman consented to operation on condition she would only accept transfusions from family-donated blood, that blood was not used, blood used had HIV, patient tested positive for AIDS, patient has claim for battery since transfusions exceeded the consent given (c) Duncan v. Scottsdale Medical Imaging patient getting MRI, would only accept demerol or morphine, nurse assured her so, patient received synthetic drug and suffered complications (d) Kennedy v. Parrott patient consented to appendectomy, doctor found cysts on overy and punctured them, plaintiff developed phlebitis in leg, doctor cut a blood vessel that developed blood clots, found for doctor because the law should encourage doctors to be trusted, and not dissuade them from shirking their duty. The consent will be construed as general in nature and surgeon may extend operation to remedy any abnormal or diseased condition in the area of the incision, using sound professional judgment (e) Doe v. Johnson one who knows he has a venereal disease and knows that his sexual partner does not know of his infection, commits a battery by having sexual intercourse (2) Consent may be bypassed in emergency situations where obtaining consent is impossible (3) Consent procured by fraud is no consent at all v) Privileges not based on plaintiffs conduct (1) Arrests and searches officers are privileged to enter land to execute a search or arrest warrant; not privileged to invite news media to cover their heroics (2) Public rights user of public utility or common carrier has the privilege to enter appropriate portions of the premises; in other words, the utility cannot deny the right of the public generally to patronize it (3) Necessity (a) Surocco v. Geary - A person who tears down or destroys the house of another, in good faith, and under apparent necessity, during a deadly fire, in an effort to save the adjacent buildings and to stop the fires progress, cannot be held personally liable in an action by the owner in connection with the destroyed property. (b) Wegner v. Milwaukee Mutual Ins. Co. two drug dealers fled from police, hid in third partys house, police fired tear gas into house breaking all windows and used flash bang grenades, extensive damage to house, municipality had to compensate innocent party for resulting damages (i) Restatement (second) 96 one is privileged to enter land in the possession of another if it is, or if the actor reasonably believes it to be, necessary for the purpose of averting an imminent public disaster (c) Ploof v. Putnam family sailing on rough water, moored the boat at defendants dock, D unmoored the boat, boat was destroyed and people were injured, found for plaintiff. An entry upon land to save goods which are in danger of being lost or destroyed by water or fire is not a trespass. One may sacrifice personal property of another to save his life or the lives of his fellows. (d) Vincent v. Lake Erie Transportation Co. - Where one reasonably believes his interests outweigh the loss or harm another may incur, his conduct is privileged. That person will be held liable, however, to the extent he or she causes damage to anothers property or land. (i) Economic perspective boat worth $500. If it goes out in storm, its value is lost. If not, it will cause $1000 of damage to the dock. Efficient allocation of resources would be to forgo the value of the boat rather than cause greater injury to the dock. II) Negligence i) Elements of negligence (1) D owed P a legal duty (2) D, behaving negligently, breached that duty (3) P suffered actual damage (4) Ds negligence was actual cause of damage (5) Ds negligence was a proximate cause of damage ii) Duty and Breach (1) Duty owed by all people standard of care they owe is to exercise the care that would be exercised by a reasonable and prudent person under the same or similar circumstances to avoid or minimize risks of harm to others.

(2) Stewart v. Motts P suffered burns after assisting D in auto shop when automobile ignited. The standard of reasonable care applies to all negligence actions, i.e., the reasonable person must exercise care in proportion to the danger involved in his act, and that he or she must exercise such care not only for his own safety and the protection of his property but also to avoid serious injury to others. Affirmed for (3) Bjorndal v. Weitman Ds vehicle collided with Ps vehicle when P was slowing down to pick up her father. P prevailed on appeal because of erroneous jury instruction. A person is negligent if he fails to exercise reasonable care, a standard that is measured by what a reasonable person of ordinary prudence would or would not, do in the same or similar circumstances. (4) Shepherd v. Gardner Wholesale, Inc. P tripped over concrete slab in sidewalk in front of Ds business, P had cataracts, a person with impaired vision is not required to see what a person with normal vision can seeone is not guilty of negligence by using the public sidewalks with the physical inability to see what a person with normal vision can see. Ordinary care in this case is such care as an ordinarily prudent person with a like infirmity would have exercised under the same or similar circumstances. (a) The conduct of an actor with physical disability is negligent only if it does not conform to that of a reasonably careful person with the same disability. R3d (5) Old age is not taken into account in setting standard of care (6) An intoxicated person owes the same care as a sober person, and that if his overt conduct would be negligence in a sober person, it is also negligence in a drunken one. (7) Sudden physical incapacitation that is not foreseeable does not constitute negligence (8) Creasy v. Rusk P was a nursing assistant, sued D, Alzheimers patient, for injuries suffered when D kicked her while putting D into bed. A person with mental disabilities is generally held to the same standard of care as that of a reasonable person under the same circumstances without regard to the alleged tortfeasors capacity to control or understand the consequences of his or her actions. However, exceptions to this general rule that a person with mental disabilities is generally held to the same standard of care as that of a reasonable person under the same circumstances will arise when the factual circumstances negate the factors supporting imposition of a duty, particularly with respect to the nature of the parties relationship and public policy considerations. (9) Hill v. Sparks D was seasoned at operating heavy machinery, had sister stand on ladder, she was thrown overboard and run over. R2d: standard of reasonable man requires only a minimum of attention, perception, memory, knowledge, intelligence, and judgmentif the actor has more than these minimum qualities, he is required to exercise the superior qualities that he has in a manner reasonable under the circumstances. (10)Robinson v. Lindsay P, a minor, involved in snowmobile accident caused by Anderson, also a minor. When the activity a child engages in is inherently dangerous, as is the operation of powerful mechanized vehicles, the child should be held to an adult standard of care. (11)Hudson-Conner v. Putney minor driving golf cart hit P, a minor, breaking her leg. Ds conduct is not to be judged under the adult standard of care because there was no evidence that adult skills were required and there was no evidence that golf carts were normally operated only by adults. Golf carts are not inherently dangerous. (12)Negligence per se legal doctrine whereby an act is considered negligent because it violates a statute or regulation. In order to prove neg. per se, plaintiff must show that: (a) the defendant violated the statute, (b) the statute provides for a criminal penalty but not by civil liabilities, (c) the act caused the kind of harm the statute was designed to prevent, and (d) the plaintiff was a member of the statutes protected class (i) Martin v. Herzog D, driving at night, crossed over center line, hitting a buggy occupied by decedent. Statute required vehicles with wheels to have lights on at night. Judge determined that decedent was only guilty of contributory negligence. Jury found for plaintiff. (ii) OGuin v. Bingham County Ps children were playing in landfill, wall collapsed and killed them, claimed that county was negligent per se, failing to fence the boundaries to state and federal regulations. Elements of per se were satisfied. (iii) R3d list of excuses for statutory violations (not negligent): 1. Violation is reasonable in light of actors childhood, physical disability, or incapacitation 2. Actor exercises reasonable care in attempting to comply with the statute 3. Actor neither knows now should know of the factual circumstances that render the statute applicable 4. Actors violation of statute is due to confusing way in which the requirements of the statute are presented to the public 5. Actors compliance with the statute would involve a greater risk of physical harm to the actor or to the others than noncompliance iii) Breach of Duty

(1) Brown v. Steel (hypo) - Company makes a conscious decision to use steel in lieu of concrete even though they know it will result in 3 injuries rather than 1 injury by using concrete. After construction begins, a worker is injured and a deli delivery boy making a delivery on the premises is also injured. (a) Should they be liable for an intentional tort under some sort of substantial certainty analysis? (i) Statistical certainty: Statistically speaking, 3 injuries will occur with steel whereas only 1 will occur using concrete. However, how these accidents will happen is still unknown and therefore not enough certainty to raise an intentional tort. (ii) Mechanical certainty: i.e. throwing a brick off of a building. You can be substantially certain that that action will cause someone immediate harm. (b) Was it negligent for Stiel to use steel construction instead of concrete knowing the increased probability of accidents? (i) Can we impose additional risks to save money? Yes. At some point, safety considerations do not weigh cost considerations. (ii) It's difficult to trace negligence back to basic decisions. A better argument would refer to some specific circumstance of the accident, not a past decision. (c) Should Stiel be made to pay for the injuries to the deli delivery boy? (i) Maybe, but their workers' compensation does not cover them. (2) Pipher v. Parsell P and another were passengers in Ds car, passenger yanked Ds wheel but D regained control, passenger yanked wheel again causing car to veer off road, hit tree, injure P. When actions of a passenger that interfere with the drivers safe operation of the motor vehicle are foreseeable, the failure to prevent such conduct may be a breach of the drivers duty to his passengers or the public. (3) Indiana Consolidated Insurance Co. v. Mathew D attempted to start lawnmower in brothers garage when it caught fire, tried to extinguish flames, ran home to call fire department, garage was completely engulfed. P claimed D negligently breached a duty of due care and was liable for damages. The central concept illustrated by this case is the sudden emergency doctrine which holds that when a person is confronted with an emergency not of his or her own making, he is expected to act in the same manner as that of the ordinary, prudent person and cannot be charged as negligent when acting in accordance with his or her best judgment. (4) Stinnett v. Buchele P was painting roof of barn without proper safety equipment, D was employer, D was not found negligent because An employer cannot be required to guarantee an absolutely safe place of employment. An employer is required to take reasonable and prudent steps to ensure safety, and there is no responsibility for additional steps where the employees means of knowledge of the dangers to be incurred is equal to that of the employer. (5) Bernier v. Boston Edison Co. Drivers foot slipped from brake to gas pedal, collided with another driver, proceeded across an intersection, down a sidewalk, hitting a pole owned by Edison, pole struck children on the sidewalk. Jury returned verdict against driver and Edison. A manufacturer is required to anticipate the environment on which its product will be used, and it must design against the reasonably foreseeable risk attending the use in that setting. (6) United States v. Carroll Towing Co. barge was damaged when it broke loose from a pier without an attendant aboard, liability to appellants for barge and lost cargo. There is no general rule to determine when the absence of an attendant will make the owner of the barge liable for injuries to other vessels if she breaks away from her moorings. If he is found to be liable for injuries to others, then he must reduce his damages proportionately, if the injury is to his own barge. Vessels invariably suffer accidents. The owners duty, as in other similar situations, to prevent against resulting injuries is a function of three variables: (1) The probability of the kind of incident in question; (2) the gravity of the resulting injury; and (3) the burden of adequate precautions. (a) Learned Hands formula to determine liability (i) The owners duty, as in other similar situations, to provide against resulting injuries is a function of three variables: 1) probability of the accident, 2) gravity of the resulting injury, and 3) the burden of adequate precautions. (B<PL; where: B=cost, P=probability of loss, and L=gravity of loss) (ii) Alternatives: 1. Reverse hand formula: using Hand's formula but makes the plaintiff bear the burden of accidents unless it makes cost-benefit sense for the defendant to prevent them 2. Cheapest cost provider: who could have avoided the accident at the cheapest cost 3. Judge determines it seemed negligent to him 4. Statutory prescriptions such as speed limits 5. Hard-and-fast rules developed by judicial prescriptions like you are always negligent if you drive so that you cannot stop within the range of your vision 6. Custom of the community or business involved 7. Moral rule that imposes liability if the defendant did anything more risky than he would have done to prevent the same harm to himself or his own property (7) Assessing responsibility when more than one person is negligent

(a) Using Bernier v Boston Edison (driver 20%, Edison 80%) (i) Comparative fault if driver had been injured and sued Edison, rules in most states would allow her to recover damages reduced in proportion to her fault (ii) Apportionment among defendants if defendants sued both driver and Edison, driver would pay 20% and Edison would pay 80% of damages (iii) Joint and several liability plaintiff can enforce tort claim against either tortfeasor. Judgment can be against both (or all), but not for more than 100% of damages. (iv) Contribution - if Edison paid entire judgment, it would pay more than its fair share. Under J&S liability, most states would allow Edison to obtain contribution from driver to obtain her 20% fair share (v) Insolvent or immune tortfeasors if driver had no insurance and no assets for the plaintiff collect judgment. Under J&S, P could collect from Edison, but Edison could not obtain contribution from driver (vi) Several liability and comparative fault apportionment jury makes a comparative fault apportionment. No tortfeasor is liable for more than his fair share. P would collect only 80% of damages from Edison. If P could not collect remaining 20% from driver, P would bear that loss. (8) Proving and evaluating conduct (a) Santiago v. First Student, Inc. P alleged that while being transported by Ds busses it collided with a car, P claimed her face hit the seat in front and she was injured. When actions of a passenger that interfere with the drivers safe operation of the motor vehicle are foreseeable, the failure to prevent such conduct may be a breach of the drivers duty to his passengers or the public. (b) Upchurch v. Rotenberry D was driving car, P was sole passenger, D lost control of car and struck a tree, P died from injuries and D was only witness, claiming an animal ran in front of her car, jury found in Ds favor. The jury is the judge of the weight of the evidence and the credibility of the witnesses. An appellate court will not intrude into the realm of the jury by determining the credibility of a witness and making findings of fact. The jury is the judge of the weight of the evidence and the credibility of the witnesses. (c) Forsyth v. Joseph car traveling at excess speed (determined by skidmarks) hit another car causing death of other cars passenger, circumstantial evidence helped determine negligence of tortfeasor. Circumstantial evidence is often the most important evidence in tort cases. (d) Thoma v. Cracker Barrel Old Country Store, Inc. lady claimed back injury in restaurant, foot slid out from her, she noticed the area was wet, didnt see anyone spill anything in the area. To recover for injuries incurred in a slip and fall accident, plaintiff must show that the premises owner either created a dangerous condition or had actual or constructive knowledge of a dangerous condition. Notice of a dangerous condition may be established by circumstantial evidence, such as evidence leading to an inference that a substance has been on the floor for a sufficient length of time such that in the exercise of reasonable care the premises owner should have known the condition. (i) Plaintiff can prove negligence by proving either that: 1. D created and failed to take reasonable actions to abate the hazard, as where a waiter spills sauce on the floor; 2. D did not directly create the condition but discovered or should have discovered a condition created by others and failed to take reasonable steps to prevent injury from that condition; or 3. Ds mode or method of business operations made it foreseeable that others would create a dangerous condition, and D failed to take reasonable measures to discover and remove it, as where a grocerys bean bin is constructed so that customers will regularly cause loose beans to fall on the floor. (ii) Whether a dangerous condition has existed long enough for a reasonably prudent person to have discovered it is a question of fact for the jury, and the cases do not impose exact time limitations. Each accident must be viewed in light of its own unique circumstances. (e) Wal-Mart Stores, Inc. v. Wright woman slipped on puddle of water in outdoor garden area, trial court held that violation of the stores safety handbook constituted negligence, appellate court reversed on improper judgment. (f) Duncan v. Corbetta P was injured when top step of stairway collapsed. Proof of a general custom and usage is admissible because it tends to establish a standard by which ordinary care may be judged even where an ordinance prescribes certain minimum safety requirements which the custom exceeds. (i) R3d says that a persons departure from the custom of the community, or of others in like circumstances, in a way that increases the risk is evidence of that persons negligence but does not require a finding of negligence. (g) The T.J. Hooper D is owner of barges that sank in a storm, D sued owner of tug boats towing the barges, barges were unseaworthy because of obsolete equipment, J&S liability to owners of barges

and tugs. There are precautions so imperative that even their universal disregard will not excuse their omission. (h) Graves v. Warner Bros. A negligence action may be maintained only if a legal duty exists that requires the defendant to conform to a particular standard of conduct in order to protect other against unreasonable risks of harm. In general, there is no legal duty obligating one person to aid or protect another. There is no general duty to anticipate and prevent criminal activity. While defendants' actions in creating and producing this episode of the show may be regarded by many as the epitome of bad taste and sensationalism, such actions are, under the circumstances, insufficient to impute to requisite relationship between the parties that would give rise to a legally cognizable duty. (9) Res ipsa loquitor - doctrine of law that one is presumed to be negligent if he/she/it had exclusive control of whatever caused the injury even though there is no specific evidence of an act of negligence, and without negligence the accident would not have happened (a) Elements of res ipsa loquitor (i) Traditional rule: 1. Accident doesnt happen without negligence 2. Instrument was under defendants exclusive control 3. No contribution by anyone else or the plaintiff (ii) R2d: 1. Event doesnt ordinarily occur without negligence 2. Eliminate plaintiff or third party contribution 3. Negligence is within scope of defendants duty to the plaintiff (iii) R3d: 1. Negligence can be inferred when the accident causing harm is a type that ordinarily happens because of the negligence of the class of actors of which the defendant is the relevant member (b) Res ipsa is typically not applicable to two or more defendants (c) Byrne v. Boadle - Defendants shop was adjacent to the road on which Plaintiff was walking, and the barrel appeared to have fallen, or was dropped from the shop. A plaintiff must persuade a jury that more likely than not the harm-causing event does not occur in the absence of negligence. The plaintiff does not have to eliminate all other possible causes for the harm, nor does the fact that the defendant raises possible non-negligent causes for the harm defeat plaintiffs effort to invoke res ipsa loquitur (Latin for the thing speaks for itself). The key is that a reasonable jury must be able to find that the likely cause was negligence. (d) Koch v. Norris Public Power District electric line broke starting a fire that damaged Ps property, P may rely on res ipsa. Power lines do not normally fall without fault on behalf o the company that maintains them and that res ipsa is applied in the absence of a substantial, significant, or probable explanation. Power lines should be built and maintained so they do not fall without intervention of nature or a person, line must have been negligently constructed or maintained. (e) Cosgrove v. Commonwealth Edison Co. power lines were seen sparking behind Ps house, power line was seen to fall, later that night a fire occurred in the alley by leaking gas line ignited by sparks, cannot rely on res ipsa to the electric company but can to the gas company. Other forces besides negligence may cause a downed power line, such as wind, lightning, storm, or an animal chewing through the wire. But ruptured gas line feeding a fire does not ordinarily occur in the absence of negligenceprobability is great that breaks therein are occasioned by defects in the pipes or improper utilitization thereof. (f) Warren v. Jeffries child was injured when a wheel of Ds car ran over his body, child dies. The conditions traditionally required for the application of res ipsa loquitur are: an accident that normally does not happen without negligence; exclusive control of the instrumentality by the defendant; and absence of voluntary action or contribution by the plaintiff. In order for the Plaintiff to have the benefit of res ipsa loquitur, she must convince the jury that each of these factors more likely than not exists. (i) Courts sometimes permit the jury to draw inferences against D. Jury may be permitted to find that the evidence was not produced because it would have been adverse to D, may be permitted to treat the case as if adverse evidence had in fact appeared. (g) Res ipsa does not apply when there is direct evidence as the precise cause of the injury and all of the facts and circumstances attending the occurrencebecause when direct evidence is presented, the underlying reason frequently advanced for applications of the res ipsa doctrine is not present: the chief evidence of the true cause of plaintiffs injury is practically inaccessible to plaintiff but accessible to defendant. (h) Giles v. City of New Haven elevator operator filed negligence claim against installer, trial court found judgment for D. To avail herself of the inference afforded by the res ipsa loquitur doctrine, a plaintiff must demonstrate that a defendant was responsible for the specific instrumentality that caused the event.

(i) Control rule many courts routinely list Ds exclusive control over the instrumentality of harm as one of the elements the plaintiff must prove to establish res ipsa 1. Modern view: control is only one way of establishing the important point that negligence was probably that of D, not of someone else. It is enough, with or without control, instrument or no instrument, that D was one of the persons who was probably negligent. (i) Collins v. Superior Air-Ground Ambulance Service, Inc. elderly woman admitted to care center, via the ambulance service, while daughter left town, upon returning, daughter of woman discovered that woman was dehydrated and had a broken leg. Res ipsa does apply complaint is sufficient for pleading purposes to raise the inference of negligence under the doctrine. (i) Multiple actors typically, res ipsa does not apply. However, in some cases further information [may be] needed in order to establish that any one of them was probably the negligent party. Burden is then on the plaintiff to prove either one. iv) Harm and causation in fact (1) Actual harm plaintiff must suffer a legally cognizable harm (2) Cause in fact (a) Hale v. Ostrow Ds overgrown bushes obstructed sidewalk, P forced to step into street, tripped on crumbling sidewalk, fell and crushed hip. Negligence requires both the elements of cause in fact and proximate cause. The test for determining whether an action is the cause in fact of an injury is to ask whether the injury would have occurred but for the defendants act. If not, then the defendants conduct is a cause in fact of the injury. It is not necessary that the defendants act be the sole cause of the plaintiffs injury, only that it be a cause. (b) Salinetro v. Nystrom P sustained back injuries in car accident, required medical exam for injury benefits, D did exam, not knowing she was pregnant, gave x-rays, fetus was aborted and found dead at time of procedure, filed suit for medical malpractice. An element of a negligence prima facie case is cause in fact or actual cause. The plaintiff must prove, not only that she suffered legally recognized harm, but that the harm was in fact caused by the defendant. This is expressed as the but-for rule: but-for defendants conduct, the pedestrian would have avoided injury. When this statement can be shown to be true, cause in fact or actual cause has been proven. (i) Problems with but-for test (p 200) 1. Divisible injuries: but-for can allow liability to be apportioned to each tortfeasor for each injury 2. Indivisible injury: fault apportionment based on J&S or comparative fault 3. Causation cannot be separated by tortfeasor, must be based on fault apportionment (c) Landers v. East Texas Salt Water Disposal Co. P owned small lake which was cleaned and stocked with expensive fish, two defendants caused large quantities of salt water and oil to flow into lake and kill fish. This case overrules the holding in Sun Oil Co. v. Robicheaux when it was held that a plaintiff could not proceed to judgment and satisfaction against the wrongdoers separately because in such a suit he cannot discharge the burden of proving with sufficient certainty the portion of the injury attributable to each defendant. In this case, the court adopts a new rule which states that when (1) the tortious acts of two or more wrongdoers join to produce an indivisible injury, that is, an injury which from its nature cannot be apportioned with reasonable certainty to the individual wrongdoers, all of the wrongdoers will be held jointly and severally liable for the entire damages and (2) the injured party may proceed to judgment against any one separately or against all in one suit. (d) Anderson v. Minneapolis, St. Paul & Sault Ste. Marie Railway P owned property near railroad tracks, sued for fire allegedly caused by sparks from Ds train that destroyed property. In Anderson, the court approved a jury instruction that allowed the jury to find actual causation if the Defendants fire was a material or substantial element in the harm done. When the but-for test seems to produce clearly wrong results, as in the duplicative cause cases, the substantial factor test has been widely accepted. If two or more causes concur to bring about an event, then the cause-in-fact is established by the substantial factor test. When either the but-for or substantial factor test is satisfied, a party has established that the other partys conduct was the cause in fact of an injury. (i) Two types of but-for causation 1. duplicative if each fire in Anderson was sufficient to burn the plaintiffs property and would have done so regardless of the other fire, both fires are duplicative causes 2. preemptive ex: illustrated by case in which one poisons the victims tea. Just as victim puts tea to his lips, other tortfeasor shoots him dead. Victim died of gunshot, poisoner is not a cause (ii) If two or more causes concur to bring about an event, then cause is established by the substantial factor testWhen either the but for or substantial factor test is satisfied, party has established the other partys conduct was cause of an injury. (iii) But-for test applies in most cases, substantial factor test is reserved for cases in which conduct of each of two or more tortfeasors is sufficient to cause the harm

(iv) R3d: if tortious conduct of one tortfeasor, A, fails the but-for test only because there is another set of conduct also sufficient to cause the harm, As conduct is still a cause in fact or factual cause (v) Increased risk showing causation: if (a) a negligent act was deemed wrongful because that act increased the chances that a particular type of accident would occur, and (b) a mishap of that very sort did happen, this was enough to support a finding by the trier of fact that the negligent behavior caused the harm. This puts burden on negligent party to bring in evidence denying butfor cause and suggesting that in the actual case the wrongful conduct had not been a substantial factor. (e) Summers v. Tice P and Ds went on hunting trip, Ds accidentally shot P in the face, judgment for P, Ds failed to meet burden of proving who was responsible, court let jury apportion fault. If Defendants are independent tortfeasors, and thus each liable for the damage caused by him alone, but it is impossible to prove whose conduct actually caused the harm, many jurisdictions presume that each Defendant was the actual cause of the Plaintiffs injury. The wronged party should not be deprived of his right to redress. (f) Lord v. Lovett P suffered broken neck in car accident, treated by Ds who allegedly misdiagnosed her spinal cord injury, causing her to lose opportunity for a better recovery. A plaintiff may recover for a loss of opportunity for a better recovery in a medical malpractice case when the defendants negligence aggravates the plaintiffs preexisting injury such that it deprives the plaintiff of a substantially better outcome. (g) Relaxed causation and lost chance Recovery Total Liability Traditional rule $0 $0 Relaxed causation $100,000 each $300,000 Lost chance $33,333.33 each $100,000 Omniscient trier $100,000 to one estate $100,000 (h) Alexander v. Scheid P had x-ray done, density in lung was discovered, no follow up. The mass grew but was not discovered until the plaintiff went to another doctor, now suffering from advanced cancer, probability of long-term survival was reduced due to delay. Reversed in favor of P because many jurisdictions have recognized a decrease in life expectancy as a cognizable injury. (i) Dillon v. Evanston Hospital patient had catheter inserted, upon removal a portion broke off and remained in body, hospital never told, later she discovered the parts had made it to her heart and embedded in the wall, judgment for plaintiff is permissible. Theories of lost chance recovery and increased risk of future injury have similar theoretical underpinnings. Jury instruction failed to require evidence of increased risk of future harm and damages proportioned to the probability that the risks of future harm would materialize. (j) Causation in fact, in general: The defendant is liable without proof that his conduct caused legal harm if, but only if (i) The defendant has acted negligently; and (ii) The negligence created an identifiable risk; and (iii) The plaintiff was one of the persons subjected to that risk; and (iv) The plaintiff actually suffered harm of the kind risked by the defendant. v) Scope of risk (1) In general: Liability for negligence is liability for the unreasonable risks the defendant created, not for reasonable risks or for those that were unforeseeable. (2) Medcalf v. Washington Heights Condominium Assn, Inc. - The term proximate cause, includes both cause in fact and foreseeability components. The harm that occurred to plaintiff must be of the same general nature as the foreseeable risk created by the defendants negligence. This means that: Liability must be rejected unless a reasonable person would have reasonably foreseen and avoided harm of the same general kind actually suffered by the plaintiff; or the defendant who negligently creates a risk to the plaintiff is subject to liability when that risk or a similar one results in harm, but not when some entirely different risk eventuates in entirely different harm. (a) R3d 29: An actors liability is limited to those physical harms that result from the risks that made the actors conduct tortious. (3) Hymowitz v. Eli Lilly & Co. - Where identification of the manufacturer of a drug that injures a plaintiff is impossible, New York courts will apply a market share theory, using a national market, to determine liability and apportionment of damages. (a) Market share theory is not one of joint and several liability. (4) A third party, with no reasonable anticipation of a duty, is not responsible for an accident occurring while first party took an alternative measure. (Abrams v. City of Chicago) (5) Palsgraf v. Long Island Railroad Co. - To recover for negligence, the plaintiff must establish each of the following elements: duty, standard of care, breach of duty, cause-in-fact, proximate cause (scope of liability) and damages.

(a) Relationship of guards action to Palsgrafs injury was too indirect for liability, no way guard could have known the package was dangerous and that pushing the passenger would cause an explosion (b) Without any perception that ones actions could harm someone, there could be no duty towards that person (c) Palsgraf could not sue the guard for pushing the passenger because the act did not violate a duty to her (d) Dissent thought it was a matter of proximate cause, and since the injury can be traced back to the original act there was negligence, should be left to the jury (e) Modern courts use a mix of dissents proximate cause language and the foreseeability test, making proximate cause today rely heavily on foreseeability (6) Rescue doctrine: a rule of law holding that one who sees a person in imminent danger caused by the negligence of another cannot be charged with contributory negligence unless the rescuer acted recklessly. Since comparative fault, most courts allow allocation of fault to be determined by a jury. (7) Defendant is liable only for types of injuries foreseeably risked by his negligence and to classes of persons foreseeably risked by his negligence. (8) In defining scope of risk, must consider: (a) Manner of harm (i) Hughes v. Lord Advocate - Where a plaintiffs injury is foreseeable, but the injury is caused in a unique way or manner which could not have been foreseen, the result is within the chain of proximate causation and that element of negligence is satisfied. (ii) Doughty v. Turner Manufacturing Co., Ltd. P worked at D, near a vat of molten chemicals, someone dropped a lid into vat, no splash, soon after vat erupted and P was covered in molten chemicals. Appellate court ruled in favor of D: found that risk of negligence was from a splash, but there was no splash, all subsequent events were unforeseeable and outside scope of risk, no breach of duty. (b) Degree of harm (i) Hammerstein v. Jean Development West P was guest at Ds hotel, knew he was diabetic, no room on ground floor but had elevator. After fire alarm, P walked down stairs and twisted his ankle, resulting in blister that became a gangrenous infection because of diabetes. Ruled for P. It should have been foreseeable that if the fire alarm system was faulty, harm to a certain type of P could result. 1. Eggshell skull rule a. Does not impose liability without fault b. D's act must have been one that would cause some harm to a normal person, or defendant must have been at fault because he knew or should have known of the plaintiff's susceptible condition c. P must prove by a preponderance of the evidence that the defendant actually caused the plaintiff harm (c) Intervening actors (i) Intentional or criminal intervening acts 1. Watson v. Kentucky & Indiana Bridge & Railroad D negligently derailed gasoline tank car, it leaked, third party threw match into the area, explosion happened, causing P injury. If the intervener does something completely unexpected, the railroad is not bound to anticipate the criminal acts of others by which damage is inflicted and hence is not liable. a. Opposing view: proximate cause applies where the risk of harm created by the defendants negligence allegedly extends to an intervening criminal act by a third party. Criminal acts may in themselves by foreseeable and so within the scope of the created risk. (ii) Negligent intervening acts 1. Derdiarian v. Felix Contracting Corp. - Foreseeability is the reasonable anticipation of the possible results of an action. Proximate cause is determined by whether an intervening act is a foreseeable consequence of the defendants negligence. If it is not foreseeable, then it is a superseding act which would sever the causal connection. (Manner in which injury came about does not necessarily matter. Hughes) 2. Ventricelli v. Kinney System Rent a Car, Inc. - A plaintiff must demonstrate that the defendant is culpable, i.e., her actions are the legal cause of the plaintiffs injuries. The corollary is that the defendant should have reasonably foreseen, as a risk of her conduct, the general consequences or type of harm suffered by the plaintiff. The foreseeable harm test has two requirements: (1) a reasonably foreseeable result or type of harm; and (2) the absence of any superseding intervening force.

a. virtually all courts agree that when a defendant causes harm to a person, that defendant will also be liable for any enhanced harm caused by the later negligent provision of aid, including negligent medical treatment. 3. Marshall v. Nugent - One is liable for the harmful consequences that result from the creation of unreasonable risk, i.e., risk that is foreseeable and is the immediate cause of the plaintiffs injury. The assigning of such liability is a question for the trier of fact. a. Termination of the risk: plaintiff must have reached a position of apparent safety; intervening actor may break the causal connection if his action has rendered nonexistent the risk created by original tortfeasor. For example, a boy found dynamite caps negligently left by the defendant, but when the boy's friend lost a hand while playing with the caps, the defendant was held not liable on the ground that the boy's mother knew of the caps but did nothing. Pittsburgh Reduction Co. v. Horton. b) Defenses i) Contributory/Comparative Fault (1) Contributory negligence -> common law rule (a) Butterfield v. Forrester - The plaintiffs failure to exercise reasonable and ordinary care in this case is a complete bar to recovery from the defendant, initializing the concept of contributory negligence. (i) Complete, all-or-nothing defense. Even relatively minor failure of plaintiff to exercise ordinary care would completely bar recovery. (2) Comparative fault rules (a) Policy shift after determining cont. negligence was too harsh, leading to statutes for comp. negligence (i) NY statute: damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages. (ii) Wisc. Statute: ifnegligence was not greater than the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of negligence attributed to the person recovering (b) Applying the rules: (i) Four cars, driven by P, B, C and D all collide. P is guilty of 5% of the negligence, B 10%, C 40%, D 45%. P has damages of $100,000. What does P recover? 1. Under joint and several: P can bring suit against any of the other drivers for the full amount (any combination) 2. If B, C, and D also have damages and sue each other to recover damages in New York, Wisconsin, or North Dakota, NY WI ND P (5%) $95,000 $95,000 $95,000 v. all v. all v. all B (10%) $90,000 $90,000 $90,000 v. all v. C&D v. all C (40%) $60,000 $60,000 $60,000 v. all v. D v. all D (45%) $55,000 $0 $55,000 v. all v. all (ii) In Maine (n. 9) - damages are determined on basis of what is "equitable and just" 1. Maybe bad public policy because it moves away from any objective standard (c) Wassell v. Adams - A new trial can be granted only when the jurys verdict is against the clear weight of the evidence, and the court of appeals can reverse only when persuaded that in applying this standard, the district judge abused his discretion. (i) Court looked not only at fault, but also the relative cost to avoid 1. Wassell could have prevented the attack by simply not opening the door. Adams could only have prevented the attack by spending lots of money on security guards and alarms. (ii) Court found that verbal warning would not have avoided the attack, also it should be obvious not to open the door for a stranger in the middle of the night (iii) Apportionment of fault in res ipsa cases after determining res ipsa is applicable, the judge should instruct the jury to compare the negligence of the plaintiff, if any, with that of the defendant to decide what percentages to attribute to each party. Courts should not require plaintiff to disprove their own fault in order to rely on res ipsa (iv) Apportionment by an equitable and just approach in Maine: Instead of requiring the jury to reduce plaintiffs damages in proportion to plaintiffs relative fault, the statute requires the jury to make a reduction it considers to be equitable and just. (3) Allocating full responsibility to defendant in interest of policy/justice

(a) In McNamara v. Honeyman, court held that although mentally ill people can be comparatively negligent in some circumstances, nevertheless there can be no comparative negligence where the defendants duty of care includes preventing the self-abusive or self-destructive acts that caused the injury. (b) Christensen v. Royal School District No. 160 - Defendant teacher sexually abused Plaintiff middle school student. Plaintiff sued for negligence and the teacher and school district claimed contributory fault on Plaintiffs part. The court did not permit a contributory fault defense in this case. (i) R3d 7(h) in light of principle or policy, plaintiffs (like defendants) might sometimes have noduty to act reasonably in self protection 1. Dissent argues that no-duty rule plaintiffs to act recklessly (here, sexual misconduct) (c) Leroy Fibre Co. v. Chicago, Milwaukee & St. Paul Railway Co. Sparks from train ignited Ps stack of straw. Jury found D negligently operated its train by allowing it to emit large quantities of sparks. However, jury also found P guilty of contributory negligence by placing stacks within 100 feet of railroad tracks. The rights of one man in the use of his property cannot be limited by the wrongs of another. (i) Property law, emphasizing the owners right to use property as she pleases, is sometimes at odds with negligence law, which emphasizes the safety of conduct and judges safety case by case after the event has occurred. ii) Assumption of the risk (1) Express assumption of risk (a) Boyle v. Revici patient had cancer, several doctors recommended surgery, she went to Dr. Ravici, who used an atypical method not FDA approved, patient died. Trial court found for P but reduced damages with comparative fault, appellate court reversed, stated jury should have been instructed under assumption of risk. (i) a valid contractual limitation on liability, within its terms, creates an absolute bar to a plaintiffs recovery from the other party to the contract (b) Tunkl v. Regents of University of California P admitted to hospital on condition that he execute a release absolving D from liability. No bar of liability. The releasing party does not really acquiesce voluntarily in the contractual shifting of the risk, nor can we be reasonably certain that he receives an adequate consideration for the transfer. (c) Moore v. Hartley Motors - An exculpatory release for a dangerous activity releases the providing party from the risks inherent in that activity and ordinary negligence associated with those inherent risks. However, an injured party may still have recourse if her injuries were caused by unreasonable risks or unnecessary dangers that are not inherent in the activity. (i) Such preinjury releases are unenforceable if they offend public policy (2) Implied assumption of risk (a) Betts v. Crawford P was housekeeper for D, tripped over items on stairs and was injured. Judgment for P. Homeowners must use reasonable care to avoid injury to those permitted on the premises, that an employer had a duty to furnish a safe place to work, that all persons owed a dity of ordinary care, and that comparative fault applied. No distinction between contributory negligence and assumption of risk when raised as a defense to an established breach of duty. (i) Contemporary view: assumed risk is to be treated as comparative fault. If plaintiff is reasonable in facing a risk, she is not negligent, but that when she unreasonably confronts a known risk, her negligence in doing so reduces her recovery of damages. (ii) According to restatement: 1. If the defendant reasonably believes that the plaintiff has accepted the risk, the defendant may not be negligent at all in relying on the plaintiff to achieve safety. 2. Recognizes a separate and complete defense based on express assumption of the risk. (b) Avila v. Citrus Community College District - In determining whether primary assumption of the risk bars liability in a sporting context, the court must evaluate the fundamental nature of the sport and the defendants role in that sport in order to determine whether the defendant owes a duty to protect a plaintiff from the particular risk of harm. In general, a defendant does not have a duty to protect a plaintiff from injuries arising from risks deemed inherent in a sport. (i) If a participant in sports makes an informed estimate of the risks involved in the activity and willingly undertakes them, then there can be no liability if he is injured as a result of those risks. (ii) Personal injury cases from athletic event must be predicated on reckless disregard of safety iii) Defenses not on the merits (1) Statutes of limitation (a) Attorneys responsible for failure to file a meritorious suit (or a defense) in time are subject to liability to the client for malpractice.

(b) Shearin v. Lloyd D performed operation to remove Ps appendix, left sponge in abdomen, knot in incision rose up and bursted, found for D with 3-year statute of limitations. A cause of action accrues so as to start the running of the statute of limitations as soon as the right to institute an action arises. (i) Reflects rule in 1957traditional rule. (ii) Discovery rule: delays the accrual of the claim until 1. All the elements of the tort are present; and 2. The plaintiff discovers, or a reasonable person should discover, both the injury and defendants role in causing it. (iii) Some states adopted rule that delays the start of the statute of limitations until the medical treatment for which the patient consulted the physician has been concluded. (c) Schiele v. Hobart Corp. - The statute of limitations begins to run when a reasonably prudent person realizes her injury or condition, and discovers the role the defendant played in causing his or her condition. (i) Some courts made statute begin to run from the time of the first exposure or first negligent act. Others used a last exposure or termination of employment trigger. Still others have adopted the discovery rule. (ii) Different interpretations of discovery rule: 1. US v Kubrick: statute begins to run when he was aware of the injury and possible cause of it, even though he was not then aware of possible negligence 2. Walk v. Ring: whether the plaintiff knew facts that would put a person of reasonable diligence on notice, either that she had a potential suit against the defendant or that she should investigate further 3. In Connecticut: the statute runs from the time injury is or should have been discovered, but that 'injury' means actionable injury (injury caused by negligence). Statute would not commence to run until plaintiff discovered or should have discovered all the elements of a cause of action, including both the defendant's negligence and the defendant's causal link to the injury, or at least reason to investigate those issues. 4. In California: the discovery rule similarly 'delays accrual until the plaintiff has, or should have, inquiry notice of the cause of action." (d) Latent potential harm (i) Ex.: Hagerty was drenched with carcinogen, had some effects that disappeared after showers, does not presently have cancer and cancer is not more likely than not, but present fear of future cancer is real. Options for the court: 1. Allow plaintiff to recover now for any actual injury plus all possible future injuries that might result from it, but future injuries would be reduced to reflect their probability. 2. Reject enhanced risk recovery, allow present actual damages only, but with present damages including mental anguish or suffering resulting from plaintiffs fear of future cancer. 3. Reject enhanced risk and fear claims, allow plaintiff to recover what he can prove in actual damages, and bar any future claims under res judicata. 4. Reject enhanced risk recovery but allow present damages and leave open possibility for a second suit if substantially different kinds of damage occur. Allows recovery for cancer if it later develops. c) Limiting or expanding duty of care according to context relationship i) Carriers and host-drivers (1) Doser v. Interstate Power Co. Ds bus was in accident, passenger was injured. A carrier of passengers for hire must exercise more than ordinary diligence for their protection. Its duty stops just short of insuring their safety. It is bound to protect its passengers as far as human care and foresight will go and is liable for slight negligence. (a) Shifts burden to defendant to prove non-negligence (b) Many courts have rejected this higher standard of care in favor of general negligence standard based upon reasonable care under all circumstances. (2) Guest statutes (a) Standard stated as gross negligence or willful or wanton misconduct (b) Who is a guest? (c) California guest statute was deemed unconstitutional because it treated guests and non-guests differently without any rational reason for doing so. (d) Guest statutes are now mostly repealed and deemed unconstitutional ii) Landowners duties to trespassers, licensees, invitees, and children (1) Gladon v. Greater Clevelan Regional Transit Authority - A landowner owes a duty to an invitee to exercise ordinary care for the invitees safety and protection. Conversely, a landowner owes no duty to a licensee or trespasser except to refrain from willful, wanton, or reckless conduct that is likely to injure him. (a) Traditional classifications:

(2)

(3)

(4)

(5)

(i) Trespasser any person who has no legal right to be on anothers land and enters the land without the landowners consent (ii) Invitee any person on the premises (1) at least in part for the pecuniary benefit of the landowner or (2) who is on premises held open to the general public (iii) Licensee someone who is on the land with permission, but with a limited license to be there (iv) Social guests are considered licensee (b) Duties owed to traditional classifications: (i) Invitee duty of reasonable care (ii) Trespassers and licensees no duty of reasonable care, only duty to avoid intentional, wanton, or willful injury (only when landowner has not discovered or received notice of imminent danger to entrant) 1. If landowner knows of entrant and imminent danger and fails to act reasonably, he can be found guilty of willful or wanton misconduct 2. Some courts have imposed a duty of care when landowners havent discovered an entrant, but is aware that trespassers frequently use a limited area (c) A duty of care is usually only limited with respect to dangerous conditions and not dangerous activities (d) An owner owes no duty to warn or protect others from a defective or dangerous condition on neighboring premises, unless the owner had created or contributed to it. (e) Persons injured while on public way or on adjoining property are not entrants and do not fit within any of the three categories. Some courts impose a duty only where a natural condition on the land actually extends onto the adjacent property. Bennett v. Stanley - A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon land if: (a) the possessor knows or has reason to know that children are likely to trespass on that place; (b) the possessor knows or has reason to know the condition will involve unreasonable risk of death or serious bodily harm to such children; (c) because of their youth the children do not discover the condition or realize the risk involved; (d) the risk of harm to the children outweighs the possessors utility of maintaining the condition and his burden of eliminating it; (e) the possessor fails to exercise reasonable care to eliminate the danger or to otherwise protect the children. (a) Attractive nuisance rule is widely accepted in the states today (b) Applies to children who, because of their tender years, are foreseeably unlikely to appreciate dangers and to avoid them. (c) Common hazards such as fire and pools of water cannot be considered attractive nuisances and the trespassing child who drowns in the stock pond is entitled to no protection from the landowner. OSullivan v. Shaw - A landowners duty to protect lawful visitors against dangerous conditions on his property ordinarily does not extend to dangers that would be obvious to persons of average intelligence. (a) Some courts still hold view that landowner is not liable for injuries even to an invitee caused by open or obvious dangers. (b) Some courts interpret rule as a rule based upon contributory negligence or assumed risk (c) Some courts follow rule that landowners owe no duty, not even to invitee, with respect to dangers created by natural accumulations of snow and ice. Rowland v. Christian - Ordinary principles of negligence may be used to determine the liability of a landowner to a person coming onto the property. (a) Abandons traditional categories for a reasonable care standard based on the fact that the categories do not reflect the major factors which should determine whether immunity should be conferred upon the possessor of the land, such as closeness of connection between injury and defendants conduct, moral blame of defendants conduct, policy of preventing future harm, and prevalence and availability of insurance (i) Dissent states that the categories supply a reasonable and workable approach to the problems involved, and one which provides the degree of stability and predictability so highly prized by law. (b) By 2008, about half of states partly abolished the categories, all or most non-trespassing entrants upon land are entitled to reasonable care under the circumstances. (c) In a state that has abolished all of the categories, the duty of general care has been held to apply to child trespassers as well, thus eliminating those special rules. Bullock v. Tamiami Trail Tours, Inc. - dealt with the 1957 assault by a bus passenger of a married couple from Jamaica. The couple was sitting in the front of the bus when they were assaulted. The husband appeared black and the wife appeared white. The narrow legal issue was whether the bus company should have had a duty to protect the couple from an assault by a fellow passenger. The District Court had answered this question in the negative, circuit court reversed. Concluded that an attack of some sort on these passengers was foreseeable and should have been prevented.

(6) Scurti v. City of New York minor electrocuted in railroad yard after crawling through fence, no categories of entrants. Landowner must take reasonable measures to prevent injury to those whose presence on the property can reasonably be foreseen. (a) After abolishment of common law entrant distinctions, the status was no longer controlling but remained one factor to consider in assessing landowners duty of care (b) Reasonable care standard is being more widely adopted without much change in results of the cases d) Nonfeasance i) One person owes another no duty to take active or affirmative steps for the others protection ii) Yania v. Bigan - A possessor of land becomes subject to liability to a business invitee for any physical harm caused by any artificial or natural condition upon the land: (1) if, but only if, the owner knew or could have discovered the condition which, if known to him he should have realized involved an unreasonable risk of harm to the business invitee; (2) if the owner had no reason to believe the business invitee would discover the condition or realize the risk of harm; and (3) if he invited or permitted the business invitee to enter upon the land without exercising reasonable care to make the condition reasonably safe or give adequate warning to enable him to avoid the harm. (1) Rocha case: Drunk, Rocha and friends went to swim in the river, friend dove in and encouraged Rocha to jump, Rocha dove in and drowned, Rochas parents sued others for negligence, court cited basic nonfeasance rule and held no duty was owed to Rocha (2) Rationale for common law rule (people should not count on nonprofessionals for rescue; the circle of potentially liable nonrescuers would be difficult to draw): liability could reduce number of altruistic responses iii) Exceptions: (1) If a person knows or has reason to know that his conduct, whether tortious or innocent, has caused harm to another person, he then has a duty to render assistance to prevent further harm. (2) If a person has created an unreasonable risk of harm, even innocently, a duty of reasonable care arises to employ reasonable care to prevent the harm from occurring. (3) If a statute or ordinance requires a person to act affirmatively for the protection of another. iv) Wakulich v. Mraz - One who voluntarily undertakes to render services to another is liable for bodily harm caused by his failure to perform such services with due care or with such competence and skill as he possesses. (1) R3d 43 an actor who undertakes to render services to another, when the actor knows or should know that those services will reduce the risk of harm to the other, has a duty to reasonable care in rendering those services if the failure to exercise care would increase the risk of harm beyond which would have existed without the undertaking or if the other person relies on the actors using reasonable care in the undertaking. v) Farwell v. Keaton - Courts have been slow to recognize a duty to render aid to a person in peril. When such a duty has been found, it has been predicated upon the existence of a special relationship between the parties; in such a case, if defendant knew or should have known of the other persons peril, he is required to render reasonable care under all circumstances. Such a defendant will then be liable for a failure to use reasonable care for the protection of the plaintiffs interests. (1) R3d 44(b) where the defendant discontinues aid, imposes liability if the defendant, by acting unreasonably, has left the victim in a worse position than existed before the defendant took charge. (2) R3d 44(a) when a person voluntarily takes charge of an imperiled and helpless person, he has assumed a duty to take charge in a reasonable manner. (3) 7 kinds of formal relationships that place defendant under a duty of reasonabl care for plaintiffs safety, including rescue (R3d 40) (a) Carrier-passenger (b) Innkeeper-guest (c) Landowner-lawful entrant (d) Employer-employee (e) School-student (f) Landlord-tenant (g) Custodian-person in custody (h) Etc(not an exclusive list) (4) Ad hoc relationships special relationship formed for the event that took place vi) Podias v. Mairs - The mere knowledge of serious peril threatening death or great bodily harm to another, which an identified defendant might avoid with little inconvenience, creates a sufficient relation to impose a duty of action. (1) Duty of defendant depends on degree of defendants involvement, coupled with the serious peril threatening imminent death to another that might have been avoided with little effort and inconvenience, suggested by the evidence, that in [the courts] view creates a sufficient relation to impose a duty of action.

e) Duty to protect from third persons i) Iseberg v. Gross - When a special relationships exists between parties, and an unreasonable risk of harm arises within the scope of that relationship, an obligation may be imposed on the one to exercise reasonable care to protect the other from, or warn him about, such risk, if the risk is reasonably foreseeable, or to render aid when it is known that such aid is need. (1) Special relationship rules apply much the same way in criminal and negligence cases where the plaintiff alleges that the defendant failed to protect her from third party. ii) Posecai v. Wal-Mart Stores - Under the duty-risk analysis, the plaintiff must prove that the conduct in question was the cause-in-fact of the resulting harm, i.e., that the defendant owed a duty of care to the plaintiff, the requisite duty was breached by the defendant and the risk of harm was within the scope of protection afforded by the duty breached. Under the duty-risk analysis, all inquiries must be answered in the affirmative for plaintiff to recover. (1) 4 tests of foreseeability: (a) Specific harm rule: landowner does not owe a duty to protect patrons from the violent acts of third parties unless he is aware of the specific, imminent harm about to befall them. (b) Similar incidents test: foreseeability is established by evidence of previous crimes on or near premises (recency, frequency, and similarity) (c) Totality of the circumstances test: takes additional factors into account, such as nature, condition, and location of the land, as well as any other relevant factual circumstances bearing on the foreseeability, places greater duty on business owners to foresee the risk of criminal attacks on their property and has been criticized "as being too broad a standard, effectively imposing an unqualified duty to protect customers in areas experiencing any significant level of criminal activity. Almost exact opposite of specific harm rule. (d) Balancing test: seeks to address the interests of both business proprietors and their customers by balancing the foreseeability of harm against the burden of imposing a duty to protect against the criminal acts of third persons. "In determining the duty that exists, the foreseeability of harm and gravity of harm must be balanced against the commensurate burden imposed on the business to protect against that harm." iii) Tarasoff v. Regents of University of California - A defendant owes a duty of care to all persons who are foreseeably endangered by his conduct, with respect to all risks that make the conduct unreasonably dangerous. When the avoidance of foreseeable harm requires a defendant to control the conduct of another person, or to warn of such conduct, liability is imposed only if the defendant bears some special relationship to the dangerous person or to the potential victim. (1) In Thompson, court refused to impose liability upon a county which had released a dangerous criminal who was threatening to kill some unnamed child, when he was released he did kill a 5-year-old (a) How to reconcile Thompson and Tarasoff: In those instances in which the released offender poses a predictable threat of harm to a named or readily identifiable victima releasing agent may well be liable for failure to warn such persons. (2) A duty to warn exists, but only where the patient communicates a thread to an identifiable person. (3) Some courts modify or reject Tarasoff by basing duty to warn on a promise made to the victim (mental health center failed to notify wife of husbands release, after promise to do so) (4) Some courts extend Tarasoff, holding that a defendant owed a duty not only to the direct victim or a threatened beating but also to her son, who was emotionally upset at seeing his mother attacked. (5) A court also held that public-school counselors were under a duty to use reasonable means to attempt to prevent the suicide of a student once they were on notice of suicidal intent. (6) Doctors warning to patients (7) Doctors warning to non-patients (a) California statute: permits doctor to disclose a positive test for AIDS to anyone reasonably believed to be a spouse, sexual partner or needle-sharer, but the doctor is not permitted to disclose any information that will identify the patient, doctor is never required to make disclosure to non-patient (b) NY courts held that a physician owes a non-patient no duty of care, unless the physicians treatment of the patient is the cause of the non-patients harm iv) Brigance v. Velvet Dove Restaurant, Inc. - One who sells intoxicating beverages for on the premises consumption has a duty to exercise reasonable care not to sell liquor to a noticeably intoxicated person. (1) Negligent entrustment a person in control of chattel owes a responsibility not to entrust that chattel to a person whom the entruster knows or should know is apt to use it in a dangerous way, once the duty is imposed it is just like any other negligence case, entruster could be liable to third party and entrustee (2) Alcohol as negligent entrustment (a) Vince v. Wilson P, injured in an accident with an incompetent driver, stated a claim against the drivers great aunt who provided money to buy the car knowing that her grand-nephew was a substance abuser who had failed the drivers test many times

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(b) West v. East Tenn. Pioneer Oil Co. convenience store could be held liable on a negligent entrustment theory when its clerk sold gasoline to a clearly intoxicated motorist and helped him pump the gas (c) Most courts appear to hold that the adult drinker is responsible for his own injury and the provider owes him nothing. (d) Courts are not willing to impose liability upon social hosts who provide alcohol. (e) Even where duty is owed by an alcohol provider, defendant might still avoid liability in some cases because the injury is outside the scope of risk Vicarious liability i) Respondeat superior and scope of employment (1) Employers could be held liable for the torts of certain employees, provided those torts were committed within the scope of employment (2) Goals of vicarious liability (a) Prevention of future injuries (b) Assurance of compensation to victims (c) Equitable spreading of losses caused by an enterprise (3) Riviello v. Waldron D employed as cook, talking to customer and flipping open knife, struck customer in eye, bar owner is liable. Based on theory that employee is typically too impecunious too recover from and insurance coverage permits most employers to spread the impact of the costs. Test is whether the act was done while the servant was doing his masters work, no matter how irregularly, or with what disregard of instructions. (4) Fruit v. Schreiner P was life insurance salesman at a convention where his employer required him to be, drove to bar and back to convention center, struck D whose legs were crushed. P was within scope of employment. (a) Employers vicarious liability does not exclude liability of employee. P may sue employee directly, either alone or joined with employer. Employer has a theoretical right to indemnity from the employee. (b) Vicarious liability may be found even where employee disregards the employers instructions. Employers vicarious liability extends to the negligent, willful, malicious, or even criminal acts of its employees when such acts are committed within the scope of the employment. (c) Test is whether at the time of the injury the employee was performing service in the furtherance of his employers business, not whether it was done in exact observance of the detail prescribed by employer. (5) Note: Enterprise Liability (a) If the price of a particular product or service actually reflects its total costs, including accident costs, the market will tend to favor the cheaper (safer) product or service. (6) Note: Serving two masters (a) Liability depends upon which employer is in the better position to take measures to prevent the injury suffered, looking at which employer has a right to control an employees conduct. (7) Note: Serving gratuitously (a) Relationship of master and servant can be established without payment or promise of payment. Ex. church member accepts duties of delivering cookies, absent an immunity, the church is liable if he negligently runs someone down while delivering cookies. (8) Hinman v. Westinghouse Electric Co. - The losses caused by the torts of employees, occurring in the conduct of the employers enterprise, are placed upon that enterprise itself, as a required cost of doing business. (9) Faul v. Jelco, Inc. construction worker, drove to a show up location where he was then driven to job site, crashed into P. (a) Employee is not within scope of employment when going and coming. (i) Exception when travel involves a special hazard, but distance alone is not a hazard (ii) Exception dual purpose doctrine (when, in addition to merely commuting, the employee performs a concurrent service for his employer that would have necessitated a trip by another employee if the commuting employee had not been able to perform it while commuting) (10)Ahlstrom v. Salt Lake City Corp. P injured in collision with off duty marked police car (negligently driven), P argued dual purpose exception. Found for D, unfair to impose unlimited liability on an employer for conduct of its employees over which it has no control and from which it derives no benefit. (a) When employee engages in conduct benefitting the employer of which is controlled by the employer, benefit and control is weighed against the personal nature of the trip. (11)Exceptions to going and coming rule (a) Employee is engaged in a special errand or mission on the employers behalf (b) Employer requires the employee to drive his or her personal vehicle to work so that the vehicle may be used for work-related tasks (c) Employee is on-call

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(12)Frolic and detour (a) Frolic not necessary to complete and not in pursuant of work-related tasks, no vicarious liability (b) Detour still in pursuant of work-related tasks, vicarious liability will apply (13)Edgewater Motels, Inc. v. Gatzke - The smoking of a cigarette, if done while engaged in the business of the employer, is within an employees scope of employment because it is a minor deviation from the employees work-related activities, and, thus, merely an act done incidental to general employment. (a) Vicarious liability applies where employees do something necessary to the comfort, convenience, health and welfare of the employee while at work, though strictly personal and not acts of service, as long as employee is either combining his own business with that of employer, or attending to both at substantially the same time. (14)Lisa M. v. Henry Mayo Newhall Memorial Hosp. - The rule of respondeat superior is applied when an employer is vicariously liable for the torts of its employees committed within the scope of the employment. An employees willful, malicious and even criminal torts may fall within the scope of his or her employment for purposes of respondeat superior, even though the employer has not authorized the employee to commit crimes or intentional torts. (a) A sexual tort will not be considered engendered by the employment unless its motivating emotions were fairly attributable to work-related events or conditions. (15)Rodebush v. Oklahoma Nursing Homes, Ltd. aide slapped resident suffering from Alzheimers, aide was intoxicated and had criminal record. Employer was vicariously liable, applies when act is one which is fairly and naturally incident to the business, and is done while the servant was engaged upon the masters business and arises from some impulse of emotion which naturally grew out of or was incident to the attempt to perform the masters business. (16)Fahrendorff v. North Homes, Inc. P was in group home, employee made sexual advances, vicarious liability was jury question, inappropriate sexual conduct or abuse of power in these situations, although infrequent, is a well known hazard in this kind of enterprise. (a) Relationship between injurer and injuree must be one that has been sponsored and encouraged by employer for vicarious liability to exist. Employers who are not masters (1) District of Columbia v. Hampton - To prevail on a respondeat superior theory of liability, the plaintiff must show that a principal-agent relationship existed and that the agents negligent act occurred within the scope of the relationship. Under the most recent case law, foster parents are not deemed to be agents or employees of state family service agencies. (a) Subject to exceptions, rule is that the employer is not vicariously liable for the torts of an independent contractor. (b) Tests for status of independent contractor (i) Right to control details of the work as a sign that the employee is a servant (ii) If employer can only determine what is acceptable as end result, thats a sign that the employee is an independent contractor. (iii) If employee runs own business and works for others, not likely to be a servant. (iv) If employee provides own tools or uses special skills, not likely to be a servant. (2) Pusey v. Bator - Although an employer is generally not liable for the negligent acts of an independent contractor, there is an exception to this rule which stems from the nondelegable duty doctrine. Nondelegable duties can be imposed on an employer where the performance of the work itself is inherently dangerous. (a) When a duty is nondelegable, person who hires an independent contractor does not escape liability under the independent contractor rules. Independent contractor himself is also liable. (b) Inherently dangerous activities are often under nondelegable duty. (c) One who is required by statute to provide safety protections for others may not avoid ultimate responsibility for this duty by use of independent contractor.