I.

Intentional Torts a. Intent A person acts with intent to produce a consequence if: 1. the person has the purpose of producing that consequence; or 2. the person knows to a substantial certainty that the consequence will ensue from the persons conduct

i. Transferred intent 1. When an actor has intent to harm A but in the course of doing so unintentionally harms A in a different way than intended or harms B, then the actor has acted with intent. Assault and Battery b. Battery i. A person commits a battery when: 1. The actor intended to cause a harmful or offensive personal contact; a. In some jurisdictions, the actor must intend to make the contact and for it to be harmful (White v. Muniz: nursing home case) 2. The actor voluntarily contacted the victims person; and a. The contact doesnt need to be with the victims body: it can be with something that is attached or closely related to the persons body. 3. The contact was harmful or offensive. a. Make sure to make clear that the contact was harmful or offensive. b. Offensive contact is one that offends a reasonable sense of dignity. (Objective standard.) c. HIV: offensive contact only occurs when theres actual exposure. c. Assault: protection of peace of mind i. Black letter law 1. Reasonable apprehension. An actor commits an assault when the actor intentionally puts another in reasonable apprehension of a harmful contact with ones person. 2. Immediacy. The other is thereby put in apprehension of imminent battery. ii. Reasonable apprehension: 1. Apparent ability can create a reasonable apprehension (unloaded gun)

iii. Immediacy: 1. Words alone lack immediacy (NC telephone jack case.) Need a weapon or menacing gesture. 2. Words can negate the menacing gesture. IIED d. Intentional infliction of emotional distress i. Ds actions must be intentional or reckless; ii. Ds actions must be extreme and outrageous; iii. Ds actions must have been the cause of the distress; and iv. P suffers severe emotional distress as a result of Ds conduct. Trespass e. Trespass to land i. Trespass is a voluntary, unauthorized entry onto anothers land. ii. Includes the rights above and below the land, up to a point set by the FAA. iii. Mistakes are not a defense. iv. Exceptions are: 1. Privileged entry, such as implied consent (salespeople absent a no solicitation sign); or 2. owners capturing animals on land adjacent to a highway f. Trespass to chattels (personal possessions) i. Prima facie face 1. Ds act interferes with plaintiffs right of possession in the chattel 2. Intent to perform the act bringing about the interference 3. Causation and 4. Damages. ii. The act 1. Dispossession of anothers possession, or 2. Using or affecting use in possession of another iii. Intent required 1. Need only the intent to do the act of interference 2. Good faith or reasonable beliefs that one owns the chattels is not a defense 3. Transferred intent applies iv. Causation v. Must show actual damages g. Conversion i. Prima facie case 1. Interfering seriously enough to warrant the D to pay the full value of the chattel 2. Intent to perform the act

3. Causation ii. Seriousnesss factors include: 1. Extent and duration of the control taken 2. Extent and duration of the control lost 3. Actors intent to assert rights inconsistent with others right of control 4. Good faith 5. Harm done to chattel 6. Inconvenience and expense to other iii. Intent: must only intend to perform the act of interference. Act may be innocent iv. Examples of conversion: 1. Wrongful acquisition (theft, embezzlement) 2. Wrongful transfer (selling, misdelivering) 3. Wrongful detention (refusal to return it) 4. Substantially changing 5. Severely damaging or destroying 6. Misusing the chattel Defenses h. Defenses i. Insanity 1. Some jurisdictions use the dual standard for intent (for battery, most voluntarily make the contact and intend for the contact to be offensive. White v. Muniz Alzheimers gma). ii. Consent accepts the risk of accidental injuries that may occur. 1. In general a. Is not a defense when consent impossible to give, such as under duress or when it just cant be given. Must have legal capacity to consent. b. If able to get consent, one must get it; otherwise, liable. 2. Types a. Express (actual) consent: when P shows a willingness to submit to Ds conduct. i. Fraud or duress = no consent b. Implied consent i. Apparent consent a reasonable person would infer from Ps conduct ii. Consent by custom or common practice 1. Can be inferred from situations. Context matters Hellriegel rough and tumble horseplay with a history of such horseplay = consent. 2. Custom can go into stores (private property and not trespassing), ringing a doorbell, playing sports

iii. Ps actions based on context 1. Body language, etc. 2. Require reasonable interpreting of the body language / situation 3. Exceeding consent given scope of consent a. One can consent to some actions but not others. Can consent to a fight without consenting to one out of all proportion to the occasion. Lane v. Holloway monkeyfaced tart. 4. Informed consent requires: a. Knowledge of the risks which are reasonably likely b. Possible alternatives and risks associated with them c. Not required when announcing risks would be detrimental to the patient. iii. Protective privileges (self-defense, defense of property, and defense of others). Important factors: 1. Timing a. heat of the moment threat must be imminent or in progress 2. Reasonable belief the threat is genuine a. Its okay to make an error, as long as the error is reasonable 3. Level of force and the rule of proportionality a. Can always respond with force necessary under the circumstances b. No excessive force! c. No deadly force for non-deadly threats. d. No deadly force to protect property. (Spring gun farmer case) iv. Self-defense 1. In general: a. When a person has reasonable grounds to believe that he is being, or is about to be, attacked, he may use such force as is reasonably necessary for protection against the potential injury. 2. When available? a. Reasonable belief as to other partys actions b. Retaliation not allowed c. Retreat not necessary d. Not available to the original aggressor i. Unless the self-defending party uses deadly force when the original aggressor had used nondeadly force, then original aggressor may defend with deadly force. e. Can threaten more force, in excess to what would you would be allowed to do, if actor intends and reasonably

believes that threatening force will do no more than create an apprehension. 3. When no risk of serious bodily harm: a. Can use reasonable force to prevent offensive contact or harm to self. b. Actor doesnt have to retreat or comply with command he is under no duty to comply with. 4. When risk of serious bodily harm: a. Can defend self or others from what the actor reasonably believes is about to be serious bodily harm which can only safely be prevented by immediate use of deadly force. b. No need to retreat if attacked at actors own home v. Defense of property 1. Using reasonable force (not intended or likely to cause serious bodily harm) to stop anothers intrusion to land or chattels: a. The intrusion isnt privileged b. The actor reasonably believes such force is the only way to stop the intrusion c. Actor has either (1) requested the other to cease and desist or (2) reasonably believes such requests would be useless or (3) substantial harm will be done before the request can be made 2. Using deadly force to stop anothers intrusion onto land or chattels is privileged if and only if the actor reasonably believes that the intruder is otherwise likely to cause death or serious bodily harm to the actor or to a third person whom the actor is privileged to protect. a. A reasonable person must be in apprehension that the trespassers assault would inflict serious bodily harm. b. Cannot use deadly force to protect place of business property c. Can use deadly force to stop a felony (except when person is retreating) d. Requires an offer of physical force (more than words). e. Differences of age, size, and relative physical strength matter. 3. Reasonable (non-deadly) force may be used to recapture a chattel when: a. The person against whom the force is used has tortiously taken the chattel; b. The actor is entitled to take immediate possession c. The recaption is effected promptly d. The actor has first requested the other return the chattel, or the actor reasonably believes that request would be useless or likely to defeat the effective exercise of the privilege e. The force is employed for the purpose of getting it back.

vi. Discipline 1. Generally in the case of parent/child or teacher/student 2. Generally an issue of statute, but one can sue. 3. Discipline must use reasonable force vii. Necessity 1. Public necessity: where a D invades property during an emergency to protect the community as a whole. a. Sometimes dont require compensation from the state i. Destruction of property during a war ii. Destroying private property during some emergencies (to prevent spread of fire, wallpaper in the bedrooms of smallpox victims) b. State sometimes must compensate for destruction i. Public necessity doesnt always protect municipalities ii. Some areas require great public necessity to prevent having to pay compensation c. Private actors can destroy for public necessity (destroying whiskey stores before an invading army took over, shooting a rabid dog) d. An absolute defense. 2. Private necessity: invading property in an emergency for a selfinterested reason. . a. Not an absolute defense. An immunity against technical liability (no nominal or punitive damages, still liable for any harm done.) Vincent v. Lake Erie. b. One cannot stop another from trespassing when its necessary. Plouff. c. Necessity doesnt justify force to defend trespass. Negligence II. Negligence a. Prima Facie Case i. Duty to the Plaintiff ii. Breach by the Defendant iii. Legal causation actual and proximate cause. iv. Actual damages b. Standard of Care (duty) i. Reasonable person (general standard of care) 1. In general, one has a duty to act as an ordinary, prudent and reasonable person under the circumstances. This means to refrain from exposing others to a reasonably foreseeable risk of injury a. Its an objective standard. Doesnt matter if youre dumber than average, crazy, or any other number of things.

i. Exceptions: Ds with superior skill or intelligence must act as a similar person with skill or intelligence. NASCAR racers should drive safer. ii. Exception 2: Actors physical conditions. (Standards for blind people = reasonably prudent blind person, when relevant.) b. The ordinary person is presumed to know certain facts of common experience c. Car owners have duty to keep their cars in safe driving condition. ii. Variations of reasonable person 1. Persons have duty to act reasonably given their ascertainable defects, such as age and relevant physical defects (subjective standard) 2. Children: take into account age, experience and intelligence a. If you have a 17 year old who is like a 12 year old, treat as a 12-year-old. b. If you have a 17-year-old who is like a 21-year-old, treat as if 21. c. At a certain age (18-21, depending), tortfeasors are presumed to have the prudence of an ordinary adult. (Objective). d. Circumstances that are so potentially dangerous require a minor to assume the adult standard. i. Such as driving a car. 3. Handicaps a. A person with handicaps must act as a reasonable person with their handicap under the circumstances. b. An actor has a duty to disabled people to act reasonably when the actor knows or should anticipate the presence of disabled people. Can use statistical evidence for this. (Haley v. London Electricity Grid blind person who became deaf when tripping) 4. Professionals can have higher standards a. Standard of care: a professional must provide that degree of care as is given by the average member of the same profession providing the same service (natl standard there are other standards too). b. In malpractice, dont use reasonable standard; compare to real-world colleagues. iii. Calculus of Risk: what is foreseeable? 1. Dont need to foresee the actual type or extent of injuries, just that an injury is foreseeable. (Barker v. Philadelphia truck driver who ran over child shouldve foreseen some injury. Didnt need to foresee injury to child for negligence)

2. No duty to take precautions against unusual and improbable occurrences. 3. BPL: Liability if burden < probability * liability (extent of damages) US v. Carroll Towing Co 4. A risk is unreasonable and the act is negligent if the risk is of greater magnitude than the utility of the act, or of the particular manner in which its done. Restatement. (Utility v. interestbalancing) a. Factors for utility: i. Social value of actors conduct ii. How advanced / protected the interest will be by the particular course of conduct iii. How advanced the interested could be by a different course of conduct b. Factors for magnitude (P*L plus social value): i. Social value of the interests imperiled ii. Probability of injury to the imperiled interests iii. Harm likely to be caused to the imperiled interests iv. Number of persons whose interests would be harmed if theres a harm 5. Use of experts and custom a. Testimony as to experts and custom can help to inform what reasonable care is, but it does not replace the standard of reasonable care. (If custom is to jump off a cliffs without looking, not reasonable.) iv. Function of judge and jury 1. Judge-only: a. Decide questions of law b. Overrule unreasonable jury decisions as a matter of law 2. In jury trials, jury-only: a. Decides questions of fact 3. Mixed roles and the three parts of the legal universe a. Alpha facts: directly observable. (was D a redhead? Was it raining the night of the crime?) For juries. b. Aleph facts: non-directly observable facts. Determined by reflecting on the evidence i. Alpha facts can be aleph facts ii. Include: was the D a reasonable person? Was there an appreciable risk to third persons? iii. Judge can more easily disregard juries aleph facts than alpha facts c. Questions of law: solely for judges (What is the duty of care?) v. Statutory standard of care: when a D violates a statute intended to protect D, courts view this three ways: 1. Violation of a safety statute is negligence per se.

a. Remaining question: proximate cause? b. Not having a license to practice medicine inherently proximate cause. c. Justification can rebut negligence per se: i. Incapacity (actor is a minor who cant comply) ii. Lack of knowledge needed to comply (tail light goes out while driving, before driver can discover it) iii. Inability to comply (blizzard prevents railroad from keeping snow off fences) iv. Emergency v. Compliance poses greater risk than violation (Tedla: old siblings on the highway) 2. Violation creates presumption of negligence a. Presumption can be rebutted by D showing a reasonable person would act the way D did. b. Burden of proof still on P 3. Violation as evidence of negligence a. Admissible at trial, and jurors may consider it. But even without rebutting evidence from D, not required to find D negligent. vi. Proof of negligence 1. Expert testimony a. Can give opinions. Can: i. Explain parts of a case (what are the parts of a crane) ii. What happened (crash reconstructionists) iii. Set a standard of care (customs) 2. Custom a. Practice of an industry or community b. Does not define standard of reasonable care, and violation of an industry standard is not negligence per se 3. Malpractice a. Strict locality rule: standard of care exercised by Drs in Ds own community or locality b. Similar locality rule: standard of care of Drs of ordinary skill and care in either Ds locality or similar communities (ALIs rule) c. National standard d. Specialists have higher standards 4. Res ipsa: Requires: a. The accident ordinarily does not happen without negligence i. Yes: a barrel falling out of a window (Byrne v. Boadle), b. The negligence is attributable to the defendant. (Or, the D had exclusive control of the instrument.)

i. The inference requires probable certainty ii. Chance that D is neg must be > 50% c. The accident isnt due to the Ps voluntary actions d. Notes: i. Burdens: 1. Burden of pleading: still on P. Must plead duty, breach, causation and damages 2. Burden of coming forward usually on P. 3. Burden of proof P still has this. Res ipsa merely lets jury draw an inference. ii. Multiple Ds: 1. RIL applies where a P cannot determine which of several Ds committed the neg 2. Leaves the Ds to sort out whom is liable iii. Ds uncontradicted evidence beats res ipsa when evidence shows that: 1. Occurrence caused by some outside agency D had no control over 2. It was the type which occurs without negligence on anyones part or could not have been avoided by exercise of all reasonable care. c. Causation i. But for / cause in fact 1. In general: a. But for is the sine qua non test. More complicatedly: b. X caused Y when there is a sufficiently high statistical correlation between events X and Y, and c. In the case at hand, there is no other plausible explanation for Y that does not require X 2. Level of proof a. Just because X can cause Y, and both X and Y occur, doesnt mean X caused Y. (Correlation != causation. No post hoc ergo propter hoc.). i. Kramer Service v. Wilkins: just because a head injury can cause cancer doesnt mean this particular head injury caused cancer. ii. Mere possibility doesnt mean Ps burden of production 3. Multiple causes / multiple possible causes a. When there are multiple sufficient causes, any negligent actor can be held liable. i. In these situations, use a substantial factor test ii. Kingston: 2 fires, one natural and one neg by RR, the railroad was held liable.

b. When there are multiple defendants who were negligent and its impossible to tell which of them was the cause, then they can be held jointly liable. Summers v. Tice (cant know which of two quail hunters shot Summers in the face). Different from res ipsa because in res ipsa, burden for duty and breach shift to D, whereas here, burden for causation shifts to D. i. Generally happens only for 2 Ds ii. For companies, instead of all being jointly and severally liable, hold each company responsible for its percent of the market share. iii. Restatement 876: persons acting in concert. For harm resulting to a third person from the tortuous conduct of another, a person is liable if he: 1. Orders or induces such conduct, knowing of the conditions under which the act is done or intending the consequences which ensue, or 2. Knows that the others conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or 3. Gives substantial assistance to the other in accomplishing a tortuous result and his own conduct, separately considered, constitutes a breach of duty to the third person 4. Loss of chance a. When it applies i. When one loses > 50% chance ii. When one loses > 50% chance iii. When one loses any chance b. What damages you receive i. 100% of the damages ii. Jury decides how great the loss was iii. Jury decides how big the overall loss was, then discount by appropriate percentage. 5. Medical proof a. Medical proof isnt the same as legal proof. Medical proof has an alpha of .01. Legal alpha = .499 b. Where there is a difference in opinion among medical experts, the jury decides whether the Ps injury is the result of an accident. ii. Proximate cause: the question is: what is the scope? 1. Direct cause test. Liable for all damages directly caused by ones negligence. a. In re: Polemis: liable for all consequences of negligence. Foreseeability doesnt matter. (No longer used.)

2. Duty defined by foreseeable P by location orbit of danger. a. Orbit of danger defined by reasonably foreseeable risks b. Cardozo in Palsgraf. c. Doughty v. Turner Mfg: Unlikely that P would have been hit by a splash, so he was out of the orbit of danger. 3. Factor test: Andrews dissent in Palsgraf. Note that foreseeability is a factor, and he lists it near the end. a. Natural and continuous sequence between cause and effect? b. Was it a substantial factor in producing the event? c. Direct connection or lots of intervening causes? d. Too attenuated? e. Is the cause reasonably likely to produce the result? f. Was it foreseeable? g. Remoteness in time and space? 4. Foreseeable P by type of event a. WM1: Responsible only for damages one could reasonably foresee from the relevant breach. b. Dont need to foresee the exact cause of the injury, just that an injury of the general type that happened would happen. i. Hughes (manhole): could foresee an injury to a child, though you couldnt foresee an injury from an explosion. Nevertheless, still liable. ii. Doughty (spill at factory): a splash was foreseeable, not an explosion. However, outside the orbit of danger for a splash, so the explosion hitting P doesnt matter. iii. Kinsman: When damages, caused by negligence, resulted from the same physical forces as the negligence caused, and the damages were of the same general sort that was foreseeable, the unforeseeability of the exact developments and extent of loss doesnt limit liability. 1. However, cts will draw a line somewhere, which will vary from age to age. 5. Gray zone cases a. WM2 BPL: P wins as to bigger less foreseeable damages iii. Intervening causes 1. Active and continuously negligent defendants liable despite intervening causes if the intervening cause is at all foreseeable, even if the specific intervening cause isnt. a. Glasgow Realty Co. v. Metcalfe (kid pushed on window (intervening cause), it shattered, people below injured. Realty co liable). b. Negligent Ds can be held liable for 3rd parties intentional criminal acts if those acts are foreseeable. Brauer: RR companys neg caused a guy to go into shock and spread

about his wagons contents. RR detectives watched the contents get stolen. RR held liable. 2. Intervening negligence that is not at all foreseeable generally gets originally negligent party off the hook. a. The grossness of the intervening negligence is a factor courts use to determine its foreseeability. The more reckless it is, the less foreseeable it is. iv. Contributory Negligence 1. Where a P is at all negligent, and Ds negligence is a proximate cause, then there is no recovery. (Not the general rule!) a. Violation of safety statutes is generally contributory negligence per se. b. Classic case: Butterfield v. Forrester: guy goes too fast on his horse at night, horse trips on an obstruction he would otherwise have seen. His neg = no recovery. c. Need proximate cause: Smithwick v. Hall & Upson: someone negligently working on an unsafe part of a platform. The wall next to the platform collapsed, and he was injured. He would have been injured whether or not he was on the bad side. Not contrib. because he didnt cause he wall to fall and he wasnt the legal cause of the injury. Didnt know about wall so had taken reasonable care to prevent being injured by it. 2. Willful and reckless negligence overcomes contrib. 3. Last clear chance: a way around contrib. a. Helpless Plaintiff: when P negligently exposes himself to Ds negligent harm, P can still recover when: i. P cant avoid Ds harm by reasonable care; and ii. D didnt use reasonable care / competence to avoid the harm when D: 1. Knows Ps peril or 2. Would discover Ps peril if D had done Ds duty b. Inattentive Plaintiff: P who could have discovered the danger of Ds neg in time to avoid it can recover if and only if D: i. Knows of Ps situation; and ii. Knows or should know P is inattentive thus unlikely to discover peril in time; and iii. Neg in failing to use reasonable care to avoid harm v. Comparative Negligence: the replacement of contrib. 1. In general: a. When both D and P negligent, allow jury to apportion fault as it sees fit between the negligent parties whose negligent was a legal and proximate cause of any loss or injury; and

b. Have jury apportion the total damages resulting from the loss or injury according to the proportionate fault of each party. 2. Proposed Restatement (3d) draft for how to figure out relative fault (factor test): a. Nature of each persons risk-creating conduct b. Comparative strength of causal connection between each persons risk-creating conduct and the harm c. How unreasonable conduct was under the circumstance d. Extent to which conduct was negligent e. Circumstances f. Abilities or disabilities of actors g. Awareness, intent, and indifference to risks 3. Why the switch to comparative a. Less arbitrary and more equitable b. Original justifications no longer valid (to help growth of transport industry) c. Societal values change 4. When and how to allow recovery a. Add up total damages, multiply by % negligent, apportion that way (pure comparative) i. Pro: Less arbitrary ii. Con: $1 million in damages at 90% at fault vs $10,000 in damages in 10% at fault most of the money goes to the 90% at fault b. Allow recovery only if youre < 50% at fault i. Pro: prevents the above problem ii. Con: Still arbitrary, just shifts it to a different point 5. Allow recover only if youre < 50% at fault vi. Assumption of risk 1. Indemnity agreements are unenforceable when: a. Negligence was more extreme or intentional b. Contract was unconscionable, which is when: i. One party has far greater bargaining power, causing great hardship or risk to weaker party; or ii. If provision is inseparable, contract as a whole is against public policy. iii. In such a case, the party enforcing the K has a burden to show the provisions were explained to the other party, which was a real and voluntary meeting of the minds, not merely an objective meeting. c. Express assumption of the risk is a complete defense because the K between parties relieves defendant of responsibility. Must be written. 2. One assumes the risk by engaging in a particular behavior when: a. The injured party knew it was unsafe

b. The injured party appreciated the danger c. There was a deliberate and voluntary choice of the injured party to expose self. 3. Implied assumption of risk: a. Types i. Primary implied: P voluntarily accepts known risks, thus D has no duty of care other than reckless / intentional / behavior outside the ordinary activity (getting hit by baseball at a game) ii. P voluntarily encounters known risk created by Ds neg. (P uses a lawnmower he knows is defective because its inconvenient to repair it) iii. P unreasonably accepts known risk in pursuing particular course of conduct (taking an unnecessary shortcut to destination despite known dangers). b. Sports i. Baseball operators have a duty to protect against unforeseeable risks. No duty to common, frequent and expected risks associated with baseball. (Duty for baseball bats, not baseballs.) 1. Jones v. Three Rivers Management Corp: Jones hit by a baseball at a stadium during an early batting practice. However, the baseball stadium was designed in an abnormal way, so she wouldnt expect it when walking there, so the risk wasnt reasonably foreseeable to her. Thus baseball stadium was neg. 4. Implied assumption versus comparative negligence a. Some states use comparative negligence instead of implied assumption. (NV and the gelded horse.) The pro is that its malleable and easier for the jury. b. D has duty to act reasonably within the rules of the game or ordinary scope of the activity. vii. Various cases of comparative and contributory negligence 1. Social use of alcohol: people who give it to guests arent liable for their guests car wrecks. Some statutes make bars liable. 2. Suicide: people who are injured and then kill themselves. Ds not liable if the suicide was willfully done, but Ds are liable if the suicide is due to injuries and the decedent couldnt control self. 3. Acts of Gd: D liable for reasonably foreseeable ones. 4. Aggravation of injuries: doctors malpractice is a foreseeable injury, so original tortfeasor can be held liable for aggravation of injuries during medical treatment. Not liable for unforeseeable aggravation (especially foolhardy treatment). Also liable if P

reinjured when going about normal life and reinjured due to injury (falls on crutches). d. Vicarious liability i. There are situations in which A does something wrong. B, who does nothing wrong, must pay for As wrongdoing. Classic example: respondeat superior. 1. Occurs when eee is within the course and scope of employment a. Course: while on the job b. Scope: doing something eee is supposed to be and allowed to be doing 2. Defenses a. Detours v. frolics i. Eeer liable during eees detours, but not frolics. ii. Intentional torts are excluded, unless an employer orders it or it happens to further the eeers interests. e. Joint and / or several liability i. Joint and several: burden is on Ds to collect from others. No defaultd shares unless solvent Ds together cant pay. ii. Several liability only: p collects from each D only their pro rata shares, and P doesnt collect defaulted shares. iii. Modern trend: spread out defaulted shares among the non-defaulted Ds and the P. f. Duty, special situations. Often, when two parties have a special relationship, there is a greater duty to exercise reasonable care than would otherwise exist. These duties can manifest themselves as: i. Duty to aid 1. There is a legal obligation to rescue only when the actor put the endangered person in danger. a. Yania v. Bigan: Yania drowned in Bigans ditch after Bigan taunted Yania into jumping in. 2. Exceptions for when required to rescue: a. Liable if: if you start to help someone out, dont finish, and that help increased their risk of harm, or leads to another harm because they relied on your promise. (Promissory estoppel.) b. When you have a special relationship: i. Businesses, sometimes. Poescai v. Wal-Mart (Sams Club robbery). Several tests exist. 1. Totality of circumstances test (most common). Takes into account the nature of the condition and location of land, along with if there were prior similar incidents (foreseeability of injury). 2. Interest balancing test (BPL-esque). Balance business interests (burden) against

foreseeability / gravity of harm to customers. a. Almost always requires prior injuries on the property. It takes into account BPLs factors, and also recognizes especially high B on businesses in high-crime areas. ii. People on social ventures together. Farwell v. Keaton: the two guys who got beat up by 6 others when they unsuccessfully tried to flirt with some girls. iii. A common carrier must protect passengers against unreasonable risk of physical harm and give them first aid iv. Innkeepers have similar duties v. People who let others onto their land as invitees vi. When someone takes anothers safety into their own hands (like jailors) 3. Some states require 3rd parties to help persons in danger, or to report certain crimes (rape, murder) 4. Duty to use reasonable care to prevent further injury when an actor harms another, even if the act itself is non-tortuous. a. No duty to put ones own life in danger in these situations ii. Duty to warn need special relationship 1. Thompson v. County of Alameda. a. Factors for whether theres a duty: i. Foreseeability of harm to the plaintiff 1. The P must specifically be known to establish a special relationshiip ii. Degree of certainty that the P suffered injury iii. Closeness of connection between Ds conduct and injury suffered iv. Moral blame attached to Ds conduct v. Policy of preventing future harm vi. Burden on D and consequence to community of imposing that burden vii. (Essentially, BPL + foreseeability to that P, moral blame, closeness of connection, and policy of preventing further harm) b. Factors specially for government agencies: i. Extent of agencys powers ii. Role imposed on it by law iii. Limitations of budget c. Thompson: there was no duty because the threats were nonspecific iii. Duty to intervene

1. School counselors have a duty to use reasonable means to attempt to prevent suicide when on notice of suicidal attempt. Reasoning: a. There was foreseeability b. Theres a policy of preventing further harm c. Closeness of connection between conduct and injury. On the macroscale, want a policy of proximate cause. d. Moral blame: ct uses BPL. B is nothing, and blame someone for the huge L when B is low. iv. Duty of volunteer rescuer 1. For helpless P, volunteer rescuer D cant: (a) act unreasonably when trying to help P; or (b) take P away from one danger and put the person in an equal and worse danger. Parvi v. City of Kingston: police liable for unreasonably putting drunk person near highway. a. P must be helpless and danger to P must be foreseeable. v. Duty to volunteer rescuer 1. Rescuers are foreseeable Ps so long as rescue isnt wanton. vi. Duties of owners and occupiers of land 1. In general a. 2nd restatement, three categories: i. Public invitee: one who is invited to land as a member of the public for a purpose for which land is open to the public 1. Duty for no willful or wanton negligence. 2. Includes social visitors. ii. Business visitor: one who is invited to enter and remain for either directly or indirectly with business dealings w/ lands possessor 1. Duty to exercise reasonable care 2. That includes fixing or warning of nonobvious dangers. Duty to reasonably inspect premises. iii. Trespasser (separate section) iv. This test became very confusing with lots of exceptions b. Newer version: i. Landowners and occupiers of land have duty to use reasonable care in maintenance of their premises for the protection of lawful visitors ii. Essentially, duty to use reasonable care under the circumstances to non-trespassers. 2. Duty to trespassers a. In general i. Duty to not willfully injure trespassers. b. Liable to trespassing children when: i. D knows or should know children are likely to trespass, and

ii. Condition of the land is one which D knows or should know is likely to cause death or personal injury to children, and iii. Children, because of their age, dont discover the condition or understand the risk, and iv. Utility of condition / burden of eliminating it are slight when compared to risk to children, and v. D doesnt use reasonable care to eliminate the danger or otherwise protect children. 3. Other duties of owners (landlords) a. Reasonable care standard: i. Landlords must exercise reasonable care to not subject others to unreasonable risk of harm. Use BPL. 1. Sargent v. Ross. b. Restatement (3d): i. Duty of reasonable care to premises over which lessor retains control ii. Reasonable care for risks lessor creates iii. To disclose dangerous conditions that: 1. Pose a risk to entrants, and 2. Exist on leased premises when lessee takes possession, and 3. Latent or unknown to lessee, and 4. Known or should be known to lessor iv. Reasonable care for any dangerous condition on premises at time lessee takes possession if: 1. Lease for a purpose that includes admission to public, and 2. Lessor has reason to believe lessee will admit persons onto the premises without fixing it vii. Immunities 1. Charitable a. People who reasonably do charitable things are immune. b. Exceptions include: i. Automobiles ii. Hospitals / medical providers (some jurisdictions) iii. More than ordinary negligence 2. Interspousal generally gone 3. Parent-child a. The idea: parents should be immune from suits for acts arising out of the prosecution of their parental duties. Want parents to let children become socialized and to not interfere with parents doing that.

b. Parental immunity prevents child from suing parent (or in the case of Brunner, D joining child as 3rd party P to seek indemnity c. Goller: No parental immunity, except for (1) parental discretion or (2) provision of food, clothing, shelter, etc. i. Parental discretion includes bringing a child to farm work and locking him in the truck. Brunner. d. CA: Duty to provide reasonable care to child. 4. States / governmental a. Federal agencies: Federal Torts Claims Act i. Federal employees are liable for the actions of its employees where the employees action would be tortuous in the forum state, including defenses. ii. Liable for negligent or wrongful act or omission of federal employees. iii. Wrongful acts are 1. Only negligence, not strict liability (Laird v. Nelms: no strict liability for ultra-hazardous activities, such as sonic booms from military planes) iv. Discretionary functions are exempted 1. Legally authorized activities are not wrongful acts (such as where to flood areas, Congressional acts, when following guidelines for releasing federal prisoners but incorrectly applying those guidelines was not discretionary) b. Suits against the states i. Most states either have no sovereign immunity or have substantially modified it c. Suits against other governmental entities (various approaches) i. Municipalities may not have sovereign immunity when they owe a special duty to P. Duties occur when: 1. Actual knowledge of dangerous condition 2. Reasonable reliance by persons on official representations and conduct 3. Ordinance / statute for particular class safety (as opposed to general public) 4. Failure to use due care to avoid increasing harm. a. Actual knowledge: requires actually knowing, not failing to know. Needs foreseeable P with foreseeable injury and the ability to act.

b. Reasonable reliance: requires specific actions or representations by D, causing them to forgo alternate ways of protecting themselves. c. Particular class: just not general public. d. Failure to avoid increasing harm: D must either cause the harm or expose P to new or greater risks. Failure to diminish is insufficient. g. Negligent Infliction of Emotional Distress i. The Dillon rule: 1. Ds have duty to avoid infliction of emotional distress that is reasonably foreseeable, including to indirect victims. Foreseeabilitys factors: a. Whether P near the scene of the accident; b. Whether shock resulted from direct emotional impact from witnessing the accident at the time, versus learning of it after its occurrence; c. Whether P and victim were closely related, distant relationship, or no relationship. ii. Alternate rules for foreseeability: 1. Dillon rule plus requirement that the P suffer physical symptoms of the emotional distress (such as a heart attack) 2. Impact rule: must have been physically touched by D to get recovery. a. Emotional distress claims are then parasitic to the initial negligent injury. 3. Zone of danger: P must have been in zone of danger of Ds original fault. (e.g., mother and daughter go out for a walk, driver hits daughter standing next to mother. Mother has NIED claim.) iii. No general duty to not inflict emotional distress NIED is not an independent tort. 1. D must also be tortuous in some other capacity to bring about an NIED claim. 2. Boyles v. Kerr: sex tape case. D didnt have general duty to not inflict emotional distress against Kerr. iv. Requirement for physical injury: multiple rules 1. Dillon: none required 2. NIED with important personal injury simultaneously or immediately after the accident 3. NIED with substantial physical injury, though not necessarily immediately after 4. NIED without PI is actionable when the D directs her actions at the P. (Molien). Minority rule.

a. Whether someone is a bystander or a direct victim relates to foreseeability, which is judged on a case-by-case basis. b. Molien: husband whose wife receives a false-positive syphilis test is a foreseeable and direct victim to v. Rules relating to bystanders 1. No recovery without impact 2. Recovery only within the zone of danger 3. Dillon-type foreseeability test with limits vi. Concerns about NIED 1. Fraud fears 2. Whether or not to require physical manifestations the emotional distress a. Yes: root out fraud, need to draw a line b. No: encourages extravagant pleading and testimony, fraud argument problematic (overinclusive because fraud for physical injury, underinclusive because there are people who arent fraudulent), no clear border between mental and physical, sense of justice. vii. Loss of consortium is actionable. h. Strict Liability i. Prima facie case 1. Strict liability fact pattern (i.e., blasting). Happens for only animals, inherently dangerous activities, and products liability. 2. Actual causation 3. Damages ii. Animals 1. A possessor of a domestic animal known to be abnormally dangerous for its class is subject to strict liability. a. Every bull has one free goring. Duren v. Kunkel. 2. Owners of wild animals are subject to strict liability for harm from those wild animals. a. Wild animal is one that hasnt generally been domesticated and which is likely, unless restrained, to cause personal injury. iii. Dangerous activities 1. Previously, Rylands v. Fletcher: a. D who brings an unnatural entity onto his land which is likely to be mischievous if it escapes is subject to strict liability for all damage that is a natural consequence of its escape. b. It was about property only. c. Now, its even more than property: can include injuring others. 2. Restatement: general principal a. People who do abnormally dangerous activities are subject to strict liability

b. Liability is limited to the kind of harm that makes the activity abnormally dangerous c. Abnormally dangerous activities are (factor test): i. Likely to harm others ii. Likely for the harm to be great iii. Inability to eliminate risk using reasonable care iv. Extent to which activity isnt commonly done v. Inappropriateness of activity to its location vi. Balance between value to community vs. its dangerous attributes vii. At least one of factors 4-6 must be present d. Notes on factor test: i. Foreseeability not explicitly there, but perhaps presumed that abnormally dangerous activities have foreseeable risks ii. Big question: whats a matter of common usage? 3. Scope a. Suit must be about the activity, not the substance i. Indiana Harbor Belt RR Co: No strict liability for putting a dangerous chemical into the stream of commerce. Cant collect simply because one manufactured a dangerous chemical. The manufacture wasnt the issue; it was the transport (which must have been negligent anyway). III. Damages