9/5/2011 12:37:00 PM Torts Outline hdeboer@wesleyan.

edu teaching assistant Monday 1:30-2:30 Sept 1, 2011 class notes TWEN powerpoint posted-review the lecture

Chapter 2 Intentional Torts

Battery
Intentional Tort Doctrine Occurs when Defendant interferens with a legal interest Plaintiff has an individual right protedted by the law (common law or state) Eg. Battery: protects bodily integrity/right to be free from intentionally inflicted contact that is harmful or offensive Question: Is this protected right the same as a constitution Legal analysis Spot the issue Identify the law (legal theory) Look at the current case/facts (factual theory) Facts Procedural posture Issue Holding Reasoning

Act requirement Harmful Offensive contact

Directly or indirectly

Waters v Blackshear Contact Doesnt matter what the intent is. It only matters that he had intent to cause a contact Act requirement 2nd issue: whether D intended the injury (harm) which produced the injury Intent-desire-substantial certain R2nd,8A

Tort requirement

9.6. class notes Battery protect an individual being free from contact. Pull the chair out of the woman. If a child pull the chair, nothing changed. Same contact. Nelson v. Carroll Direct contact vs. indirect contact Contact: the first hit by the gun Issue: the intent contact with a bullet. He didnt intend to hit the plaintiff with a bullet. But he intended to make a contact. Theres initial intend to make contact. Hes responsible to the following contact. Theres no specific rule for the contact. The defendant doesnt need to have the intent to the unexpected contact. The first battery make the contact of the bullet not innocent. Cleaning gun and it goes off: If you are cleaning the trigger in the classroom with a lot of students Shooting flower bullets at you as a joke: If the flower hits you in the face, and you are very near to the gun, maybe a battery. Assault is much within the definition of battery. Battery requires contact. Definition of injury and definition of harm. Leichtman v. WLW Jacor Communications, Inc. Whether its a battery

Taylor v. Barwick Super. CT. 1997 Procedural Posture of Case: Taylor sued Barwick for Battery. Essential Facts:

Taylor alleges that Barwick poked him on the back side with a tree branch. Barwick then began to laugh at his and made some derogatory comments indicating his hairstyle was for girls. Barwick said the the contact to Taylor was an accident. Barwick observed a three foot stick on the floor and bent over to pick it up. As he was standing up , someone called his name, causing him to turn around, then the stick brushed against Taylor. Barwick said that he immediately apologized to Tayor Both parties moved for summary judgment. Plaintiffs motions was denied because issues of material fact (the intent to cause contact) remain for resolution by a trier of fact.

Issue: whether the action is too trivial to be recovered. Holding: Rule: Analysis:

No dissenting or concurring opinions. Judgment:

September 8, 11 Doesnt need to contact the plaintiff. Just contact the object that contacted the plaintiff. Eg. Pull out a chair under sb. Harmful v. offensive Objective test v. subjective test

Both look at the general principle : reasonable person sense, then give different factors, depending on the different factors, you can get different outcome. Ordinary average person. Make the argument, if offensive according to the factors, social context, social moral, look at the way and time they seem to be offensive. Need to argue to get the result of a case White v. Muniz Different jurisdiction has different rules. Depends on geography and subject State court decisions about the case law Court is trying to decide the rule it should apply Single intentwhether she want to do the harm or not, she is liable Dual intent-she need to intent to do the action, and she know the action is harmful The court need to decide what is the rule These elements frequently confuse court Try to make sense of the argument. So when you write a brief, make it straightforward. Make an analogy of the decedent. When you dont have a direct case, you make an analogy, to get a point. And decide which position you take. How do you read the case? There are factors in front of you. Its not theres no new rule of children and mental disability persons. Its just hard to prove their intent. P36Piano teacher The defendant is a professor who touch the plaintiffs back. The defendant didnt mean to do any harm. Theres no harmful intent. Its also not offensive. He uses this movement as a teaching methods all the time. Ordinary person who is not undually sensitive. How is the sensitivity of the person being touched, need to be consider. The idea of consent is something you can argue. Whether its consented. ITs not a definite yes or no. We dont know if she would consent such contact. P27hot coffee, a glass of water

Assault Battery without assault Victim doesnt perceiving impending contact Piano teacher Assault without battery No contact ever occurs Cullison v. Medley In class, just give us a general story of the case. Dont need to go over every detail of the facts. When reading the case, think about what facts are relevant. Injuryhe was apprehensive of some imminent harm. Harmrelated to damages. Actual result. Procedural postureplaintiff was appealing to reverse the trial court judgment in favor of the defendant. Trial court: plaintiff only claimed emotional distress. Theres no actual harm. The plaintiff didnt show intents. Legal reasoning whether its assault or not, the court have used a general rule. The touching of the mind, eg. Shake of a fist, to aim or strike at sb with a weaponthreaten position, If the father doesnt have a gun, will it be assault? Does it matter what the defendant thought? Whether the plaintiff is unduly sensitive? If the defendants know that the plaintiff is unduly sensitive? May use policy to argue if theres no precedents. Fairness argument, abuse the system, ill intent if you know that the plaintiff is unduly sensitive. Protection How do we run our society? No precedents, we dont know yet how this is going to go? Creativity of the lawyer. Courts that the trial court erred. The evidence need to be judged by jury. Its not clear cut. The trial court said that its clear cut. The appellate court said no. it s not.

A touching of the mind. Examples fo assault Apprehension of imminent Brower v. Ackerley Basis of the assault?? the court need to do the legal reasoning. P43, precedent: Dicta, holding Words alond are not enough to liability. Mere words are not enough. Accordin to the court ,only words is not enough. There need be some kind of action. What kind of action? What more is needed? Argument based on what action is enough? Imminentthe court didnt say how long imminent is enough. Theres no bright line of the time of imminent. You need to make the argument about this. The plaintiff is claiming that it is imminent. But the court didnt agree with the plaintiff. Keed in mind: the court didnt resolve this issue. Its a dicta. Its not a holding. Look for words with actionlook at the surrounding circumstances. Unless together with other acts If you dont do this, I will do.conditional. Interpreting apprehension: imminence Hypothetical: Conditional language: if you dont leave, I will break you neck. Does apprehension always mean fear? Anticipation of fear. Sometimes anticipation is not fear. If you see fear, you can go with that. But Apprehension is not always fear. Another importanta: also requires perception. It a want to assault B, B didnt see it, its not assault. Transfer of intent Transfer of intent between torts: recover If the defendant only intend an assault. transfer of intent between people.-allow people to recover relief if they are harmed.

Hall v. Mcbryde If no transfer of intent theory, the plaintiff cannot recover. Theres no battery, because theres no intent to battery. The appellate: theres assault. If theres assault, the assault can be transferred to battery. The dual use of transfer intent for the torts and people. September 13, 11 Apprehension Conditional: if the victim do something, there will be no injury. Theres no black and white rule about this. Look at the overall circumstance. Hall v. Mcbryde The trial court found it a assault. If the case is considered as a battery. In finding assault, apprehension, then transfer the intent to battery. Then transferred to another person. The intent follows the bullet. ( Transfer of the intent) Problem P49no apprehension, no assault; Consent Defense could be made. McQuigga v. Boy Scouts of America Whether he has consented to play the game. Where can you find consent Two type of consent, the ways of showing consent. Implied and express Express is easier to prove. He is giving the impression that he has given consent, so it doesnt matter whether he has the equipment to play the game. Withdraw of consentThe court think that he didnt properly show his withdraw to consent. Consent: Rule of withdraw: one who enters intoa sport, game or contest may be taken to consent to physical contacts consistent with the understood rules of the game. It is only when

notice is given that such conduct will no longer be tolerated that the defendant is no longer free to assume consent. Hogan v. Tavzel The court didnt have similar cases so it looks at other jurisdictions. Having the knowledge that he is infected but didnt tell.concealment The person has reasonable knowledge about the situation. Restatement: consent to sexual intercourse is not the equivalent of consent to be infected with a venereal disease. Problem P54 3. The express consent is more easy to figure out the implied consent. Consent to rough playing. He didnt consent to large playing. Richard v. Mangion What is consent vitiated? Defense of consent bars recovery Express or implied Test: reasonable appearances UNLESS unnecessary and unanticipated force What is excessive? P58 problem: September 15, 11 B. Defense of Self and Othersthe Proportionality Principle Proportionality Slayton v. McDonald Dangerous weapons It is generally not justified to use weapons in selfdefense If attaching party not armed but only commits battery with fists or in some manner not inherentl dangerous to life But Resort to dangerous weapons to repel an attack may be justifiable in certain cases When the fear of danger of the person attacked is genuine And founded on facts

Likely to produce similar emotions in reasonable men Reaonable person standard R(2nd) 63, comment i: A reasonable person must be a person of ordinary firmness and courage Objective/Subjective Test Actor have grounds which would: 1. Lead a reasonable person to believe the employment of a dangerous weapon is necessary and 2. s/he actually so believes 3. Proportion of force: must use in calculated way that is not excessive. Rules from Slayton v. McDonald Factors re reasonableness? Character and reputation of the attacker, Belligerence of the attacker, Differences in size and strength of the parties, Whether there was an overt act by the attacker, Whether serious bodily injury was threatened, Whether a peaceful retreat was possible. Proportionality: Basic Idea? Propriety of amount of force used depends on wighing: Interest actor is protecting Threatened harm to that interest VS. The actual amount of force used by the actor Young v. Warren Privilege of defense of self and others 1. Well grounded fear that assault (battery) was about to be committed against a family member. 2. Not in excess, no more force than necessary or reasonable. 3. Immediate attack (not threat/attack from past). ***Question of fact

Deadly force okay to prevent serious bodily injury. What is serious bodily injury? Woodard v. Turnipseed Review: September 19, 11 A can claim that Bs action is battery because B first incurred the fight by call A a wimp. B intentional contact A during the fight. But B can have a defense that their fight was mutual and A, by voluntarily fight with him, consented to the possible harm as a result of the fight. As consent is Bs defense as to the action of fight. A could also claim that Cs act constitute battery, because C used a knife to thrust him, even though C missed him. C may defend himself by contending that he was trying to protect his brother who was at the time beaten by A. By the time C saw A and B, they were fighting with each other furiously and A was about to win B. From what C had seen, it seems that it is possible that B would be hurt by A because A was at that time have more advantage to win B. C could contend that he understood that there was a apprehension that A would hurt B. So C was acting to protect B. Cs using of a knife was justifiable because it was possible that B could be receive bodily injury. C was entitled to use a weapon to defend his brother from being hurt by A. A may response As defense by saying that Cs use of a weapon was not justified because it is not proportionate to the harm B could receive. During the fight, A and B didnt use ant weapon. Cs use of a knife to defend B was not justified and was overreacted. E could claim that Ds action constitute battery. Ds intent to shot C transferred to E when the bullet actually hit E. As claims against B : Assault Battery Bs Defenses: Consent Self-Defense As claims against C Assault

Cs Defenses: Defense of Others Ds claims against D: Assault Ds defenses: Defense of others Es claims against D: Assault Battery Es claims against A,B,C: Assault Battery As claim of assault against B Rule: the elements of assault are (1) the defendant must act with intent (2) to place the victim in apprehension of a harmful of offensive contact or to Battery: rule: the elements of battery are Defense of land and personal property Woodard v. Turnipseed Is the defendants conduct a reasonable force to protect his property? Infliction of Emotional Distress Zalnis v. Thoroughbred Datsun Car Co. What is Outrageous Conduct? One who b extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject of liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm. Question of fact: the threshold for conduct being extreme and outrageous More than mere insults, indignities, threats, annoyances, petty oppressions, and other trivialities. (R(2nd ) 46, comment D) Positions of power R(2nd ) 46, comment E Permissible conduct can become extreme and outrageous if it is an abuse by the actor of a position which he has actual or apparent authority over the other, or the power to affect the others interest. Elements?

1)Outrageous conduct by the defendant 2)The what is outrageous? Conduct is so extreme in degree as to go beyond all possible bounds of decency to be regarded as atrocious and utterly intolerable in a civilized community. What is a civilized community? Where is it? Local? State? National? Severe emotional distress Miller v. Wilbanks Is an expert witness needed? Jurisdictional split Policy? Majority rule v. minority rule Majority rule doesnt require expert testimony. Minority rule require expert evidence. Nana . Oak Park Marina, Inc Need cause of action to support the allegation. The court need to see if they recognize the cause of action. Recklessness They should have known. Its not a certainty, its a risk.

Trespass Elements of trespass: Acts Thomas v. Harrahs Vicksburg Corp. An invasion (a) shich interfered with the right of exclusive possession of the land, and (b)which was the direct result of some act committed by the D. what kind of acts? Enter land Place objects on land

Cause third person to enter land Stay on land after permission expires Quize10-15 question, multipal, true or false, intentional torts we learn so far, pass/fail, review after the quize, next class, a quize, tres September 27, 11 Consent can be expressed or implied. Concealment and fraud can vitiate consent Defense of trespass In class, we learn general rules of torts. Different jurisdiction might have different rules. Proportionality: reasonable force used upon the attacker. Cant be revenge for the past. Actual or apparent authority over the other. Test for severe stress. Trespass is strict liability, theres no fault needed. Its a very strict tort. Use the rule learnt in the class to apply for presentation for extra credit. Sth in the media, modia, cartoon, anything. Use the rules in class. Trespass Page 745 Problem 6 Chemical leaking to the Farmland Technically, whether they have knowledge that it may leak? B. Trespass to Chattel and Conversion Koepnick v. Sears Roebuck &Co. Dispossession R 2nd 221 A dispossession may be committed by intentionally There need to be some evidence that the person should have some intent to take possession of anothers chattel These facts Intentional Subtest of dispossession Simple meddeling is not enough But theres no harm to the truck or him Damages: is there any liability? There must be actual damages to recover.

When is there liability? Jurys assessment of $100. How did jury decide the damage to be 100? Even there is trespass, theres no damages, theres no tort. Its hard for P to recover. If the jurys decision is reasonable? How do you calculate the reasonable amount of damage? Not nominalcannot decide the amountthen overturn the amount of damage. Conversiondegree of personal property. US v Arora There is some overlapping language about this case. Conversion How this works in practice. Somebody is liable for the things they took. Paying the cost of conversion. Cost benefit. If they are doing something, what is the way to do that? Its a crime? Whether US owned the cell? Factors for determining conversion Policy of the rule: what motivate tort law? September 29, 11 Negligence: Duty of Care Intentional torts: somebody has fault, willful malicious. Negligence is also a kind of fault, but is another kind of fault. Certain fact pattern, need to figure out which kind of tort it is. Intentional torts: punitive damages Negligence: not punitive damages, why? If its careless and negligent. But we can challenge. Maybe they could be more careful. One chain of Remember: determine whether a person has duty. Look at duty. Duty to all person, or duty to a certain person. Figure out Reasonable person, standards, Test for Negligence. Duty, breach, causation and damages

Duty-care-whether the defendant breach the standard of the care? If they breach the duty, they maybe liable. If breach, decide whether the breach cause harm? Then if theres causation, determine the damage. Did the victim also contribute to the damage? How Later will look at special duty rules. The Beatle- a songDear prudence. Vaughan v. Menlove A prudent person What is the standard of a prudent reasonable person? Is that fair? If person said I really did my best, I didnt mean to hurt anybody, and he doesnt need to pay the damage, that would be not fair. We need a objective standard. Some person with lower IQ or children, a average person, below average person. Reasonable person A prudent person is a fictitious person. Who decide what is reasonable? The jury Why the jury is allowed to decide? What are they allowed to decide? Its not possible to not use ones own experience to argue what is a reasonable person? Gender neutralreasonable man or woman? Does that make sense? There would be discrimination. Should there be a different standard based on gender? If there is different gender, we cannot predict the outcome of the conduct. In the practice, its very had to disregard all the perception in the real life. This is the rule of the law, even though you know in reality, it is not practical, you have to follow the rule. Parrot v. Well Fargo & Co. (The Nitro-Glycerine case) There was a leasing contract between P and D. D rent Ps property to run a delivery company. S What did the court say about the standard? What are the options? The court said that its not reasonable to run business in that way. The court made a economic analysis.

Shipping things, what is the standard? What is reasonable for them? They are doing what the other shippers are always doing. In the industry, especially doctors, there are risk of harm. In this case the substance is unknown at that time. In terms of the generally requirement, Balancing analysisthe cost to avoid the risk, and the benefit Is there any rule to assess? Policy: cost benefit analysis What is the standard of care that a person is held to? Look at the circumstances. What the person would do under the circumstances. What a reasonable prudent person would do in that circumstances. Look at the facts. How do you make choices every day? How to make choice? Do you think what is the risk of doing in the daily life? People are balancing the risk everyday. P97 problem A: Make the argument: a ordinary home owner building a house. They are not building the best, but a ordinary house. What would be Ds standard of care? Maybe they will have argument about what a reasonable person would do in that circumstances. B: is he liable? Is he reasonable? Continuous of the risk and how much the risk is? Is there anything that can be done to prevent the risk? At what point is the risk big enough to determine that the person should not drive? He is reasonable, he did what the DMV asked him to do. He followed the law. Is that reasonable that DMV prohibit the people with epileptic to have a drivers license? The risk continues in the circumstances. Does it make sense for DMV to pass law to forbidden the drive of certain people? It is a way to legislate, but it may also have problem. What is the standard of care? The requirement of the standard doesnt change over time. What is change over time? The reasonable person in the circumstances changes. The circumstances changes over time. There are pressure in the industry. Distinguish the facts of different circumstances. The precedents are only precedents of standards, not facts. McCarty v. Pheasant Run, Inc Reasonable conduct as a balancing of costs and benefits.

She was proposing reasonable to request the hotel to do better. The court didnt buy it about the plaintiffs claim. She didnt prove it. Have to show the cost of the lock is. How to calculate the cost and benefit of it? What evidence would help her to upheld her claim? Look at the community, the safety She didnt notice there was a door behind the curtain. Law & Economics This was a federal court. The torts is state law. Diversity of citizenship. The judge didnt apply the state court. The courts gets around that curtain. Judge Posner used an economic tool to get to the reasonable person standard. The Hand Formula B<PL=negligence The tool and the outcome is ok? Is the burden the cost of the precaution and the likely of the harm The anticipation enter into the balance. How many people was harmed? Calculation: how to make calculation to make the balance? Life insurance. Just because its immoral to calculate. Even people doesnt feel comfortable, you have to figure out a way to make the calculation.

October 4, 11 Evidence, fact pattern, use them as a argument to defend for the plaintiff or D. Stewart v. Motts Especially dangerous instrumentalities. High duty of care Does ordinary care requires additional care? The key clauseunder the circumstances They are not separate standardsreconcile the standards of ordinary care and extraordinary care. Application: behavior of the judges, the court is looking at the idea: if there is a dangerous circumstance, reasonable care requires extra care. Model jury instructions October 6, 2011 Robinson v. Lindsay Jury instruction at trial Child standard of care:

o Usually a separate standard given policy o But what about when engaged in activity that is Normally Inherently dangerous Downhill skiing: inherently dangerous, but not adults only Hunting: inherently dangerous and adult only, Golf: not inherently dangerous; not adult only; Outdoor cooking: not inherently dangerous; not adult only; Peterson v. Taylor Youth : special treatment for minors The child was hyperactive Question of fact: Question of law: Reasonable minds: If there is a statute of book any child of this case is incapable to have such mind, .-this is a issue of law. When the law tells your answer and your fact meets that law, you dont even need to go into litigation.

Test: o Subjective test: o Objective test: o October 11, 11 Negligence: Duty of Care Reasonable person standard Being intoxicated doesnt have its own standard. Also apply to reasonable person standard. Creasy v. Rusk Physical and Mental Disabilities. This case, its purely mental disability. Subjective to same standard for the mental disabilities. In this case, the court did have a different standard.

The court want to change the rule. Look at policy reasons why they want to change the rule. o The person was institutionalized. o Factors: Protect innocent parties Incentive for caretakers Prevent fakers/fraud Avoid evidence issues of proof Cost of being in normal world o D didnt have the duty to ordinary care.

Duty owed? o Relationship between the parties. o Reasonable foreseeability of harm to the person injured. o Public policy concerns. o o Normal standard: we almost own a duty to anyone. Recklessness Elements of recklessness theory Negligence is that people should know. Reckless is that people do know. To have cuse of action must show: o R(3rd) 2: o 1.P must show that actor knew of the risk o 2. Knew of fats that made the risk obvious

Proving Breach Martin v. Herzog Issue: jurys instruction o October 18, 11 Problem P168-169 Doctrine of res ipsa loquitur (1). whether the d had exclusive control over the situation? (2). whether the incident ordinary would not happen? 1.Normally the chair would not collapse ordinarily.

2. A health child had brain concussion at pickup time. Alternative explanation as to why the incident occurred. When the facts was weak, cannot do the analysis, use the doctrine of Res Ipsa Loquitur. 3. Box of groceries fell from a large display 4. bottle of carbonated drink exploded whether D shook the bottle? Mfg of the bottle, even the waitress shook the bottle, she bottle should have been produced without explosion. Is the bottle safe enough for the consumer to use it. 5. a girl cut her foot when play soccer exclusive control how she injured herself who takes care of the playground? Help you to think about what kind of facts you need to solve the problems in the book. Causation Legal Cause: Cause in Fact Courts always Cause in fact, proximate cause But-for cause Even if but for cause test is met, there may be more than one proximate cause. Even if proximate case is settled, there may still be more than one causes. But for test: but for that conduct, the negligent event would not occur. The lawyers dont use too many time on but-for test. Its more important to focus on the exact cause that cause the event.

Chapter 5 Legal Cause: Cause-in Fact

I. Introduction Causation Doctrines Connect a Defendants Conduct to a Plaintiffs Harm Superseding causation Duty Proximate cause

Terminology Legal cause Encompassing all aspects of causation o Cause-in-fact o Proximate cause o Superseding cause II. Basic Cause-in Effect: The But for Test Whether the plaintiff would have been free from harm but for (in the absence of ) the defendants negligent conduct But for test Cay v. State of Louisiana, Dept of Transportation and Development La. 1994 Procedural: o P sued D for the wrongful death of D who was killed in a fall from a bridge construed and maintained by D. o The trail court rendered judgment for plaintiffs, concluding that Cay accidently fell from the bridge. o P appealed. The court of appeal affirmed. o Reversed. Fact: o The deceased was 27 years old, he was intoxicated when he returned to his home after work. Later in that afternoon, he was seeking to obtain a hunting license and shotgun shells for a hunting trip the next day. He then went to a ball room. He declined a ride to his home and carried an open beer with him. o Five days later his body was found on a rock bank of the little river, 35 feet below the bridge across the river. o Cay would have had to cross the bridge in order to travel from Jonesville to his home. o The thicket of brambles and brush indicated that he had fallen from the bridge. Theres no evidence suggesting suicide or foul play. There was evidence that Cay who was wearing dark clothes was walking on the wrong side of the road for pedestrian traffic and was intoxicated. o Cays parents sued on the grounds that the guard railings on the sides of the bridge were too low and therefore unsafe for pedestrians whom D knew were using the

bridge and that D failed to provide pedestrian walkways or signs warning pedestrians about the hazardous conditions. o Trial court: o Cay accidently fell from the bridge. o The fall was caused in part by the inadequate railing and in part by Cays intoxicated condition. o The court found that D breached its duty to pedestrians by failing to build the side railings to a height of thirty-six inches, as required by American Association of State Highway and Transportation Officials standards for pedestrian railing. Appeal: affirmed. o If the railing was higher, Cay may or may not fall off the bridge. o Granted Certiorari: o The statement was not correct articulation of the preponderance of the evidence standard for the plaintiffs burden of proof in circumstantial evidence cases. Burden of Proof o In a negligence action, the plaintiff has the burden of proving negligence and causation by preponderance of the evidence. o Proof is sufficient to constitute a preponderance when the entirety of the evidence, bot direct and circumstantial, establishes that the fact or causation sought to be proved is more probable than not. o Issue: whether there is sufficient evidence to show that Ds negligence caused the deceaseds death. Holding: While a higher rail would not have prevented Cay from jumping or a third party from throwing Cay over the rail, one could reasonably conclude that a rail above Cays center of gravity would have prevented an accidental fall. Cause-in-fact: o But for inquiry Whether the injury would not have occurred but for the defendants substandard conduct. o Whether a higher railing would have prevented Cays fall from the bridge? o Circumstantial evidence suggested that it is more likely that Cay fell accidentally by being forced to avoid upcoming traffics and didnt commit suicide because his plan of hunting is not something a people would do if he want to commit suicide.

o Trial judge found that a higher railing would have prevent the fall from the bridge, which is why the minimum height requirement exist. o Judgment: Reversed. The railing was below the standard. This was negligent. Negligence per se Harm: to prevent people to fall off the bridge. The deceased was protected by the statute and within the class of member that the statute was aiming to protect. If you do the but-for analysis, whats the first question you want to ask? But for the bridge was higher, would the deceased fall off the bridge? D was drunk, traffic forced him to move to avoid the car. The car might be negligent. State court : customary standard as to the standard of the height of the bridge-the associations standard. Looking at the average person Look at his situation, whether he would not fell over the bridge based on his height Proximate cause and but-for cause is mixing up in the analysis of this case. Burden of proof: what the P need to show?

Lyons v. Midnight sun Transportation services, Inc. Alaska 1996 Procedural: o P sued D, alleging that D had been speeding and driving negligently, causing the death of Ps wife. o Trial court: jury entered a verdict for the D. o P appealed. Facts: o Esther Hunter-Lyons was killed when her car was struck broadside by a truck driven by Jette. Jetter was a driver of D. Jette was driving south in the right-hand lane of a road. Esther was pulling out of a parking lot in from of him. Jette braked and steered to the left but Hunter-Lyons continued to pull out further into the traffic lane. Jettes truck collided with Hunter-Lyonss vehicle. o Jettes speed was 53 miles per hour and the speed limit was 35 miles per hour.

o The plaintiff appealed on the ground that the jury instruction erred. o Jury instruction: Sudden emergency doctrine Jury found D had negligent, but his negligent was not a legal cause of the accident. D was driving negligently or responded inappropriately when Hunter-Lyons entered the traffic lane, and therefore didnt exercise the care and prudence of a reasonable person under such circumstances. Lyons claims were defeated because of lack of causation. The negligence was not the legal cause of the accident. The court held that the jurys find that the negligent was not a legal cause of the accident was reasonable. Expert testimony: The primary cause of the accident was Lyons pulling out of the parking lot and entering into the lane in front of the traffic. Based on Lyons speed, the accident would have happen even though D was driving within the speed limit. D responded properly when a unexpected automobile entered into the lane.

Issue: o Whether Ds negligent cause the accident, which killed the deceased. Holding: o No. Although all of this testimony was disputed by Lyons, a reasonabl jury could have concluded that Ms. Hunter-Lyons caused the accident by abruptly pulling out in front of an oncoming truck, and that David Jettes negligence was not a contributing factor. With the element of causation lacking, even the most egregious negligence cannot result in liability Analysis: o D was negligent. o Ds negligent was not the legal cause of the accident. o Expert testimony suggest that the accident could have happened even if D was not negligent; the accident was caused by the deceaseds enter into the oncoming traffic; D responded reasonably under the circumstances. o Judgment: o Affirmed.

Emergency: it looks like a emergency in this case. The court said that theres a causation. Do they say what they found negligence on? 1. He was speeding 2. He steered to the left. The appellate court said that the jury rendered verdict for the plaintiff, so why are you complaining? Question is how do you phrase the but for question of steering. But for the steering, the accident would not happen. But in the trial court, the jury focused on speeding. Question: but for the speedingalternative: driving within the speed limit, if jette drove within the speed limit, the accident would have happened anyhow. Issue upon appeal o Sudden emergency instruction o Legal cause/cause in fact Even the defendant appears to be P181-3 Problems o A. o B-D are there any alternative explanations? If the wire was marked, what could happen? 1. The unmarked part but for the unmarked wire, could have changed the outcome. Even if it was marked, it is possible that shes still hurt. 2. Steel wire at all to be in there. But for the steel wire was there, will she be injured? Probably than not she would not be injured. Not only about the hourse, also about whether the rider could have seen the wire.

III. Alternatives to the But-for Test A. Reasons for Alternatives B. B. Multiple Sufficient Causes Kingston v. Chicago & Northwestern Railway Co. Wis. 1927 Procedural: o P sued to recover the damage of his property caused by two fires. Facts:

o The northeast fire was set by sparks emitted from Ds locomotive and a northwest fire of unknown origin, which is caused by human agency instead of natural phenomena. Jury found that each fire constitutes a proximate cause of the destruction of Ps property. o Each fire would have accomplished the damage of Ps property separately. Rule: o It is settled in the law of negligence that any one of two or more joint tort-feasors, or one of two or more wrongdoers whose concurring acts of negligence result in injury, are each individually responsible for the entire damage resulting from their joint or concurrent acts of negligence. Issue: o Whether D was liable where theres another concurring proximate cause which could also lead to the result independently? o Holding: o The fact that the northeast fire was set by the railroad company, which fair was a proximate cause of plaintiffs damage, is sufficient to affirm the judgment. This conclusion renders it unnecessary to consider other groungs of liability stressed in respondents brief. Analysis: o To permit each of two wrongdoers to plead the wrong of the other as a defense to his own wrongdoing, would permit both wrongdoers to escape and penalize the innocent party who has been damaged by their wrongful acts. Judgment: o Affirmed You cant really tell which fire it was that cause the damage of the property. Would it be an issue that the second fire was caused by a human agency? Both fires are responsible of the fire. Joint Tort feasors: Multiple efficient cause: The causation question is that you cannot prove who are responsible, maybe both could escape the liability. So both are responsible. Logically why would that matter regarding whether the other fire was caused by human or nature cause? Possible defense: o If it is a nature cause, it would have happened anyhow, d would not be liable.

o Compare the force of the two fair. o Cook doctrine: Other cause of natural origin Other cause was of greater proportion Theres no clear evidence about the force of the two fires. Looking at the facts thats available. The court tried to figure human agency. The court reasoned that it would be very impossible that the fire was caused by nature force. How could you decide whether it was caused by nature? Railroad was held liable under the statute. Brisboy v. Fibreboard Paper Products Co. Mich Ct App 1986 Procedural: o P sued D, seeking damages for the wrongful death of his husband, alleging that D had negligence in failing to warn the Ps decedent of the danger of working with asbestos products to be the proximate cause of his death. Facts: o He was died as a result of lung cancer caused by asbestosis contracted during his 26-years career as an asbestos insulation worker. o P listed 9 employers as defendants and settled with 8 of them instead of the D. Ps deceased husband had worked for D for about 6-9 months. The testimony of the co-worker said that the air in which the deceased was working was very very dusty, and theres no way to avoid breathing this dust. o The deceased was a heavy smoker and smoked 3 packs of cigarette per day for 30 years. o Medical expert testimony: There were disputes as to the expert testimonies. 1. One doctor on behalf of P discounted the impact of smoking cigarettes because the deceased was died of adenocarcinoma, while cigarette was more related to another type of cell. So cigarette smoking does not increase an asbestos workers risk of developing lung cancer. 2. The doctor on behalf of P admitted that smoking can be related to the adenocarcinoma of the lung, and could have been the sole cause of the lung

cancer of the deceased. But he believed that there is a strong link between asbestosis and cancer than cigarette smoking and cancer. Ds expert testified that the deceaseds cancer was soly cause by cigarette smoking. V. the combination of cigarette and asbestosis created a greater risk of developing lung cancer.

o Rule: o Under Michigan law, an actor will not be held liable for his negligent conduct unless that conduct was a legal or proximate cause of the harm to the plaintiff. o Restatement 2d: Where a number of events each contribute to the ultimate harm, one may have such a predominant effect as to make the effect of a particular actors negligence insignificant. On the other hand, where none of the contributing factors has a predominant effect, their combined effect may act to dilute the effect of the actors negligence and prevent it from becoming a substantial factor in bring about the harm. Issue: o Whether D is liable for the death of the deceased when his negligent contributed to causing the lung cancer? Holding: o Yes. There was sufficient evidence to find the the harm caused by Ds negligent conduct was a substantial factor in bringing about the disease which led to Mr. Rands death. Analysis: o Evidence: even one month of exposure may cause asbestosis and ultimately result in the victims death. There is no safe level of exposure to any carcinogen. o This evidence was sufficient to permit reasonable minds to conclude that Mr Rand died, at least in part, due to the development of asbestosis in his lungs as a result of his inhalation of asbestos fibers during his working career. o P established that during the time the deceased was working for D, the air was extreme dusty and when asbestos dust is visible, it necessarily implies an extreme exposure. o Judgment: o Affirmed.

The defendant doesnt settle with the plaintiff, he would go through the whole process of the lawsuit. The deceased was a smoker. There were distinguishing expert testimony about the cause of cancer. What would jury think about those disputing witnesses? When you have competing expert testimony, jury need to judge which would be accepted. What would you look at to decide whether theres causation. Substantial factor of the causation o R2nd 433 (a) & comment d o How to analysis substantial factors

o Wont use it unless you have multiple substantial causes o It says that if all of them contribute it, it might dilute the liability of the defendant. Fire scenario: if use this doctrine, the defendant would not be liable. So the court use the doctrine that all the defendants would be liable. o Theres no safe level of the substance that could cause cancer o His employment record showed . o P189 problem-flooding; It not obvious about which conduct is more responsible. Substantial factor doctrine: o Need to find out which cause has more force as to the flooding o Look at the nature of the causes to compare the force. o

C. Concert of Action Shinn v. Allen Tex. Ct. app. 1998 Procedural: o P sued D alleging that D was negligent and was liable for Shinns death under the concert-of-action theory of liability. Facts: o D was the passenger of a vehicle driven by his friend Shinn, who was intoxicated while driving and was killed in the accident. Rule: o R2d 876

Person acting in concert For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he (a) does a tortious act in concert with the other or pursuant to a common design with him, or (b) knows that the others conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or (c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes

a breach of duty to the third person. Comment of R2d Factors 1. The nature of the wrongful act 2. The kind and amount of the assistance 3 the relation of the defendant and the actor 4. The presence or absence of the defendant at the occurrence of the wrongful act 5. The defendants state of mind.

o Issue: o Whether D was liable for the death caused by a car accident when the deceased was driving the car, intoxicated and D didnt assist or encourage the deceased to drink. Holding: o No. In reviewing the above factors in the context of the summary judgment standard of review, we conclude that the evidence conclusively disproves that Allen breached the concert-of action theory of duty to Shinn. Analysis: o 1. Nature of the wrongful act antisocial or dangerous behavior that is likely to cause serious injury or death to a person or certain harm to a large number of people. Driving while intoxicated was such conduct. o 2. The kind and amount of the assistance didnt buy the beer, order the beer, or pay for the bear, didnt encouraged the deceased to consume the beer or drive recklessly.

o o

D just request a home ride. 3. Relation of the parties no special relationship, only friends. 4. Presence or absence of the defendant Passenger. Only presence is not sufficient to liability. 5. Defendants state of mind didnt know the deceased was intoxicated. In reviewing the evidence in the context of the above five factors, the court

concluded that P didnt raise a material fact issue that D substantially assisted or encouraged the deceased in operating the vehicle. o The fact in this case distinguished with the precedents which held that the defendant was liable. Judgment: o Affirmed. October 20, 11 Shinn v. Allen October 27, 11 Duty-reasonable care-breach of the duty Proximate cause Duty and Foreseeability Hegyes v. Unjian Enterprises o Relationship Special relationship No special relationship o Possibility of harm Mere possibility of harming P not enough Through hindsight everything is foreseeable o o

Dykema v. Gus Macker Enterprises o Whether the owner had a duty? o Review of duty o General rule: Theres no duty to aid or protect another. Theres no affirmative duty to help the others. Special relationship triggers the duty. o Element of control Did P entrust himself to the control and protection of D. Was there a consequent loss of control of control himself? o Policy Factors/Balance test Roberts v. Pinkins, 1988 o The court took the test P can control himself. Free tournament. No special relationship between P and D.

Problem: P 234 o Relationship in the movie theatre. They are in the theatre. They are paying. They cannot see anything. o Whether driving out actually incurred liability of the manager? o The manager do has a duty to warn. o Once the duty is established, the manager do has a duty to warn. o Factors Eisel v. Board of Education of Montgomery County o Policy limits to duty o Factors o Foreseeability of harm to P o Policy of preventing future harm Prevention school program Whether this act creates cause of action? If they create the duty, dont need to move on to analysis other factors Closeness of the P and D. She committed suicide. She caused her own death. Death would cut off all causations?

 Community standard Duty Two words of duty Harmful conduct: duty to others Burden: at least notify the girls parents, like a phone call. Is a phone call enough? Public policy analysis Changing social conditions may generate new duties. Creating due relationships. o Proximate Cause o Dont need to include all the cases in the outline. Just include the cases that can help you understand the principles. Discuss both sides of the cases. even though the question said choose one side, you can mention the other side. Eg. A but B may argue Review Session Nov. 2: Cause in Fact/Duty of Care Cause in Fact 1. Both the car driver and the train driver were negligence by the time of the accident. The facts suggested that both drivers conduct met the But for test which suggests that harm would not have occurred if the person had acted properly. But for the car drivers negligence, the accident would not occur; and but for the train drivers negligence by the time of the accident, the accident would not occur either. Therefore, the negligence of the car driver and the train driver together contributed to the accident occurred. Therefore, the car driver and the train driver should both be liable for their own fault of negligence. The car driver and the train driver both own a duty of care, because they are driving a car or a train, they should have been careful to pay attention to the condition of the road. The train driver should have been more careful and horn when the train passed the crossing. The train driver was negligence. Even if the train driver whistled the car driver was listening to the music, he would not hear the whistle anyway.or jury need to decide whether the music was loud enough that the car driver would not hear the whistle anyway, the car would need to show preponderance of proof to show the music was loud enough.

2. Both fire was started by human being by negligence. Both fire would have caused the fire of Cs house. Therefore, both A and B are liable for the harm of Cs house. Even though the but for test is not met, A and Bs negligence is the proximate cause of Cs damage of the house. It would be unfair to let A or B to be free from the responsibility for Cs damage. Both A and B should be liable for Cs cause. In fact, A and Bs conduct caused the fire, therefore A and Bs negligence is liable for Cs damage. The but for test would not be satisfied. But the result of but for test is not satisfactory. Considerations: Cause in fact can be satisfied. Both fires were substantial factors in causing Cs house to burn down. Cause in fact would be satisfied for claims against both A and B. Duty to care A had a duty of care to B. As car collided with Bs car by negligence of A. Therefore, A owned a duty of care to help B to get out of the car to avoid injuries. A should be liable for Bs injury and the damage of the car. C didnt have a duty of care to B. Even though C can help B, but C was only a passer-by, he did cause the accident or the harm to B. C was not required to do anything. A is liable for Ds injury, because A actually caused the accident, and is the proximate cause of Ds harm. But for As negligence, Bs car would not caught on fire, B would not be stuck up in the car and D would not be burned in order to help B to get out of the car. Therefore, As negligence satisfied but for test and A is liable for B and Ds harm. A would argue that it is not foreseeable that D would come to help B and get burned. But D would argue that is foreseeable that any time theres accident, people would come for help. D will likely be able to establish that A had a duty to him, because danger invites rescue and therefore it was reasonable foreseeable that As negligence would cause the harm that D suffered. Foreseeable? May go either way. Exam; A would argue this.. and B would argue that..and then come to a conclusion P246 Independent causes Cause in fact: infinite number of independent causes Proximate cause: how do you determine when one cause is sufficient to break the chain of causation?

Is the lack of hot water alone enough to cause foreseeable damage? What else happened? Compare with Polemis case: difference? Some of the reasoning: intervening actions Responsible for our own action

November 3, 11 Next Thursday-quiz Limits on liability: Proximate cause Where the liability is most likely to be contributory. November 8, 11 Next class 18 questions-quiz quick to pass make up class Proximate cause Problems P 155 A. harmless conduct until acted upon. B. object itself: the conduct is harmful? The pole: Continuous C. cause of the fear of contracting the disease Potentials that the needle would cause the contraction? Proximate cause: the worker was injured, would other be injured in the similar way? Whether the familys fear would be legitimate interest that should be protected by the law. What about the lapse of time. Is it relevant? From the initial throwing of the needle to the fear? Question: different facts patterns, if theres causation of not. Foreseeability Tieder v. Little o Cause of the death o It seems that the struck of the car caused the death.

o But the actual cause of the death is the badly constructed of the wall. o Had the wall be constructed better, the death would not have happened. o Directness test: Directness test seems similar to the but-for test. Its so highly and unusual o Figure out a way to get to a just result o Foreseeability: o Test used to establish the causation: o Whether it was a reasonable to foreseeable the harm o Dont need to be the exact harm happened. o o o o o o o o o o o o o o 2. Identify: what is negligent. What is the general harm that could be caused by the negligent? Foreseeability test: What question need to be asked. What is the negligent action? What is the type of harm that is foreseeable? Question: whether the negligence would cause any harm? Whats the type of harm that can be caused? Suffering of the pedestrian died.

Duty analysis Read the cases, they talk about the rule, the test, then apply the rule. Kind of harm you would expect is that the fall could fall over sb Whether the general type of harm could be caused by the negligent. Whether the harm is foreseeable?Cadozo testthe Cadozo harm is very general. o The proximate cause harm is narrow. o Breach of duty: assumed o If theres no negligence of building the wall, there would be no liability. Problem 259 o The type of harm that could happened: o Burn of the finger o Sb creating the fire and burn themselves. o It doesnt matter how the fire was caused and how the harm happened. o What is the general kind of harm that could happen? o Eggshell plaintiff

Schafer v. Hoffman o Foreseeable that drunk driving would cause the driver to strike sb. o P has preexisting medical issues. o D argued: he shouldnt be liable for the greater damage. o Ct: D was the person that put P in there. o Shabby millionaire rule: o You take the victim as he/she is. o The initial injury is sth D has to pay for. o Looking for what D should be liable for. o What have to be shown to ask what D should be liable for. o Still need to link what happened and the injury. Price v. BKA o Question: whether BKA should be liable for the damage? o But for causes o It is for the jury to decide whether it is foreseeable that sb would be annoyed by the mask of Bush and push the person with the mask. It could be foreseeable. Intervening act o Share liability o Superseding act: o D can get out of the litigation without paying for the damages. McClenahan v. Cooley o Negligence: leaving keys in the car of your ignition o Foreseeable: sb else would drive away the car and cause accident. o Where this occurs? Occurs where the public safety is heightened. D may have more awareness of the areas safety. Many jurisdictions follow a rule, minority followed a rule. Potential liability: Majority: no, theres no liability Minority: you can foresee that it created risk. This court followed the minority rule: The court held that it is foreseeable that sb would stead the car and do something bad.

Problem 283

o Similar facts o Foreseeable that the key in the ignition, this is a urban area, increasing automobile thefts. o If it happened in countryside, probably different result: more safe in the countryside. o High school, same result? o A reasonable person would think it to be a safe area? o It doesnt matter what the defendant think about the area. o It has to be a reasonable person. o Community thought about the safety of the area is relevant. o Weems v. Hy-Vee Food Stores, Inc o It is foreseeable that he would be treated o Foreseeability: going to the doctor is foreseeable, it is also foreseeable that the treatment could fail. o If sb is injured, it is foreseeable that the patient could be contracted a disease as a result of the treatment and D should be liable. o November 10, 11 Defense A. traditional common law treatment of a plaintiffs negligence Wright v. Norfolk and western railway co. o Figure out duty Cadozo: foreseeability limit liabilitymatter of law by the judge Cadozo didnt say anything about proximate casue o Then figure out the standard of carereasonable person (including all the variations of reasonable person standard of care) o Then have to show breach of duty Whether the person fulfill the standard of care Negligence Per Se Larger N: negligence in tort Little n: little n within the larger N in tort o Then show cause But-for (cause in fact) Proximate cause

Directness Substantial factor Foreseeability test Some court use one of them, some court use more than one of these. Andrews: proximate cause limit dutymatter of fact by jury

o o Damages An injury If no injury, no damage, dont recover o Reasonable person In this case the ct considered other factors: P have been in there for many times, lived there for several years P was contributed negligence P couldnt recover. Ps negligence bar him from recover. Even 1 percent of Ps contribution to negligence, he is bar from recover. Its not fair. McIntyre v. Balentine o Pure comparative of negligence o Modified comparative of negligence 49%--court adopted 51% o P and D, who had more amount of causation of the injury o Duty of reasonable care o How much care you take? o The knowledge of the party about the risk o Have to apportion the percentage of negligence o Which party can do better to care? o Court decided that D is in the better position to prevent the harm. o o Liability Big N is the Negligence Tort Small n: negligence in the big N negligence Thinking throughget clarity of the rules.

 November 15, 11 I. Reckless Conduct a. Coleman v. Hines i Willful and wanton ii Last clear chance iii Facts: a father showed up and gave the kid the spare key. iv Obvious to the kid but not obvious to the father. II. November 17, 11 Procedural: o Facts: o Issue: o Holding: o Analysis: o Judgment: o