TORTS OUTLINE Tort law is based primarily on common law (varies statewide) Persuaded by Public Policy Liability should

d be based on fault, proportional to fault, used to deter accidents, spread broadly, costs shifted to those best able to bear them, those who benefit from dangerous activities should bear resulting losses, should foster predictability in human affairs, facilitate economic growth and progress, be administratively convenient and efficient, promote individual responsibility, victims should be fully compensated I. TORT LIABILITY A. Intentionally Inflicted Injury i. Garratt v. Dailey (boy pulled chair out from under woman) a. Knowledge with substantial certainty, of a potentially harmful contact, is enough to prove intent ii. Vosburg v. Putney (child lost leg after kick from schoolmate) a. Regardless of intended consequences, purpose and knowledge enough to create unlawful act b. REMEMBER: eggshell skull: take the plaintiff as you find him (Vosburg v. Putney) B. Failure to Exercise Care i. Doe v. Roe (defendant negl. transmitted herpes to plaintiff) a. Foreseeability established duty on behalf of , harm was easy to prevent b. Court adopts balancing test, appropriate to enforce a duty on even when foreseeability is slight ii. Foreseeability reasonable anticipation of the possible results of an action, such as what may happen if one is negligent or consequential damages resulting from a breach of K. iii. Recklessness higher degree of negligence, more blameworthy C. DEFENSES: i. Contributory Negligence when plaintiffs failure to exercise care for personal safety or self protection contributed to the injury or loss (all or nothing) ii. Comparative Negligence replaced contributory negligence (s negligence to s negligence) a. Pure damages reduced in proportion to plaintiffs fault b. Modified 50% threshold for recovery, recover nothing if plaintiff is more then 50% at fault iii. Assumption of Risk consent is still a total bar to recovery for an intentionally perpetrated tort iv. Cohen v. Petty ( unexpectedly fainted while driving car) a. No liability, could not establish foreseeabilty of harm b. Even if risk is foreseeable, can only do what a reasonable person would do in the circumstances D. Strict Liability i. Hossenlopp v. Cannon (Dog bite rule, no prior bite needed) a. Court adopted CA statute for dog bites b. strict liability breach of absolute duty to make something safe a. looked upon as impeding progress of society, would over-deter a lot of general behavior (ex. Driving) b. Typically in SL dont have to prove intent, foreseeability, or failure to exerc care E. Insurance (Tort Policy Concerns: deterrence and risk-spreading) i. Defendants intentional harm generally not covered by insurance ii. Liability insuring against others iii. First Party insuring yourself (life insur, medical insur, fire insur) iv. Crisci v. Security Insurance Co (insurance co must act w/in best interests of insured) a. Implied covenant of good faith and fair dealing a. In determining whether to settle must give interest of the insured at least as much consideration as it gives its own interests II. BASIC INTENTIONAL TORTS A. Concept of Intent (2 Varieties) i. Purpose: depends on s subjective wishes, exists when acts w/ purpose of causing consequence that the law forbids

ii. Knowledge: regardless of subjective purposes, knows w/ substantial certainty that act in question will cause prohibited result B. Intent to Injure i. Lambertson v. United States (injured while working after worker jumped on back, fell into meat hook) a. attempted to sue US under Respondeat Superior b. Federal Tort Claims Act allows suit against US for negligence, but not for intentional torts c. tried to dress claims as negligence instead of battery, court didnt allow d. Motivation (practical joke) isnt a defense C. Intent and Mistake i. Ranson v. Kitner ( shot s dog while hunting wolves) a. Intent is still present when mistake occurs, encourages people to be more careful when taking actions (if mistake was induced by there is no liability) D. Intent and Insanity i. McGuire v. Almy ( injured by mentally ill patient, claims assumption of risk) a. claims ill patient cannot form intent, court doesnt recognize defense unless patients intent wasnt meant to harm (disintegrating knife example) ii. Assumption of Risk is NOT a defense to Intentional Torts (consent is) a. AOR is defense to negligence iii. No consent here, was attempting to stop patient from hurting themselves, patient didnt have past history of violence iv. MINORITY VIEW: Anicet v. Gant (contrary outcome of McGuire) a. was employed in high risk mental institution, knew that they would encounter danger b. attack occurred within institution in secure room, not much else to do to prevent harm a. not fair to impose buren on s family, had patient institutionalied, not much else they could have done E. Transferred Intent i. Intent to commit first tort transfers to the second tort (only applies to 5 intentional torts) ii. Battery, Assault, Trespass of land, Trespass of Chattel, False Imprisonment (both torts must fall in one of the categories, original Writ of Trespass torts) iii. Keel v. Hainline (student hit in eye by eraser during horseplay in classroom) a. Court decided students throwing erasers intended to commit battery on eachother, applied transferred intent doctrine to hold s liable a. Goldfarbs opinion: court was wrong, no battery in first place, there was consent between the s to hit eachother with erasers iv. Vicarious Liability (responsible for something you didnt do) a. Present in Keel wasnt the one throwing erasers, but was retrieving for other classmates therefore aiding and abetting b. Aiding and abetting c. Respondeat Superior d. Common Law Parent Liability for Tort of Minor Children a. Absent a statute, parents not liable for torts of minor children i. Exceptions (child is employee of parent, parent ratifies childs tortious conduct, parent directs child to commit tortioius act or knowingly assists in the conduct) b. Court can keep judgment alive until minor reaches adulthood or may be covered by liability insurance F. Battery and Assault -Every Battery does NOT necessarily include assault (hit by something and not know it was coming) Battery Prima Facie Elements (intentional infliction of unconsented bodily contact that is harmful or offensive) 1) Intent to make contact (knowledge with substantial certainty OR purpose) 2) Contact (Harmful or Offensive) 3) No Consent

Assault Prima Facie Elements (intentional creation of apprehension of imminent battery) 1) Intent to make contact (Knowledge with substantial certainty OR purpose) 2) Apprehension of imminent contact 3) Present apparent ability to cause contact (gesture or movement usually needed) 4) Imminent i. Noble v. Louisville Transfer (taxi driver helping sick child, mother sues) a. Court found touch was not a battery, girl most likely gave implied consent by being sick b. Contact was not offensive, does not have to be attempt to harm for battery to exist, only intent to cause contact c. Contact must be harmful or reasonably offensive ii. Harmful Contact unconsented alteration of a structure or function of the body, even if the chagne does not affect the plaintiffs health iii. Offensive Contact objective definition, what would offend a reasonable persons sense of personal dignity, unless person knew of a sensitivity suffered by (Subjective) iv. Good Samaritan can still be liable for battery if intentional and unconsented touching is harmful or offensive even when trying to help v. Picard v. Barry Pontiac-Buick (garage attendant touched s camera) a. Contact with an object attached to (camera, umbrella, purse) can be considered equivalent to touch body vi. Moore v. El Paso C of C (girl put hand through glass after running away from during parade) a. Dont have to touch someone to commit battery, chase caused girl to put her hand through door (contrib negl not a defense b/c intentional wrong was done) b. Intent to injure not needed, only intent to make contact c. Implied Agency: authority to act on someone elses behalf/interest a. Cant permit conduct to occur until mishap and then claim party was not acting on their behalf b. Relation of agency can be implied from words/conduct of party c. Transferred intent of assault/battery (placed on Chamber of Commerce) vii. Western Union v. Hill (guy behind counter makes remarks to woman) a. Intent to cause Apprehension a. Imminent v. Future Threats: threat of future harm does not support assuault, must be imminent contact (no significant delay, but not immediate) b. Conditional Threat: depends on if it is a condition which is privileged to enforce through physical contact or a threat to do the sam i. Conditional threats can be assaults if the condition is illegal (crimes) viii. Views on Assault (3) a. Purely objective (reasonable person) b. Purely subjective (Restatement view) c. Usually apply objective, apply subjective if and only if knew of s vulnerability and chose to expose it (Prossers hybrid approach) Intentional or Reckless Infliction of Emotional Distress Prima Facie Elements 1) Intentional and Reckless 2) Extreme and Outrageous behavior 3) Must have causal connection b/t wrongful conduct and the emotional distress 4) Severe emotional distress (intensity and duration considered to determine if severe, must be proven) Recklessness (a) the person knows the risk of harm created by the conduct or knows facts that make that risk obvious to another in the persons situation (b) the precatution that would eliminate or reduce that risk involves burdens that are so slight relative to the magnitude of the risk as to render the persons failure to adopt the precaution a demonstration of the persons indifference to the risk G. Intentional or Reckless Infliction of Severe Emotional Distress (Tort of Outrage) -an actor who by extreme and outrageous conduct intentioanlly or recklessly causes severe emotional disturbance to another is subject to liability for that disturbance and, if the emotional disturbance causes

bodily harm, also for the bodily harm (prior to IIED only way a could collect damages for emotional harm was by showing there was physical injury) i. Infliction of Emotional Distress a. Must be extreme AND so severe that no reasonable person could expect to endure it b. Harris v. Jones (supervisor tormenting employee with stutter) a. Severe emotional distress wasnt proved c. Role of Motive motivation is important to determine if person liable for intentional or reckless infliction of severe emotional distress ii. Abusive Language a. Will not be liable for insulting language alone based on objective standard b. Slocum v. Food Fair Stores (employee insulted a customer, suffered heart attack) c. Exceptions a. Ultra Sensitive Person (which knows them to be) b. Common Carriers, Inn Keepers, Utility Workers i. Held to a higher standard b/c they deal with the public iii. Domestic Violence and Harassment a. Feltmeier v. Feltmeier (wife sues husband for IIED due to pattern of domestic abuse) a. Ct. saw imbalance of power as causing extreme/outrageous conduct b. Ct. rejected statute of limitations defense b/c husbands actions were considered a continuing tort i. Tort involves a continuing or repeated injury, the S.O.L. period does not begin to run until the date of the last injury or the date the last tortious act ceased c. Action not barred by marriage settlement contract (public policy reasons) d. Stalking recognized as tort of outrage in some states e. Punitive Damages awarded by large majority of courts for outrage iv. Bystanders and Third Persons a. Taylor v. Vallelunga (not the modern approach) a. Girl hidden in house watches her father being beaten, sues for IIED b. Court had not included Recklessness in IIED yet, s were not guilty of intentional infliction b/c they did not know girl was there (3rd party cant recover from unless conduct was intentional) b. Modern courts: recognize intentionally or recklessly, real question is intent, doesnt matter if bystander in room or that knows of their presence a. Actor must have intentionally or recklessely, acted with purpose of causing emotional distress, substantial certainty distress would occur, with reckless indifference False Imprisonment Prima Facie Elements 1) Intent to confine (on behalf of ) (no consent on behalf of ) 2) Confinement (does not have to be tangible or physical) 3) Use of unlawful force, threat of force, or assertion of legal authority 4) Harm to Plaintiff or Plaintiffs knowledge of confinement ( must be aware of confinement) H. False Imprisonment i. Intent to confine a. Must be intent to confine, not just an intent to do something wrong ii. Must be no apparent reasonable means of escape a. must not know of a reasonable means for escape b. If escape poses a substantial risk to then it is not reasonable c. False imprisonment gone if there was a reasonable means of escape and party did not take it d. Consent will bar an action for false imprisonment e. Exception: battered women can be seen to have no reasonable means of escape iii. Modes of confinement a. Physical barriers b. Use of force c. Threatening immediate application of force d. Assertion of legal authority

e. Being forced to follow by use of force/threats/authority iv. Transferred intent applies to False Imprisonment v. Bird v. Jones ( wants to cut through public street, parade security wont allow him) I. Unlawful Force, Threat of Force, or Assertion of Legal Authority i. Morales v. Lee (threats of future actions not usually sufficient to satisfy false imprisonment) ii. Must show confinement occurred from unjistified force, threat of force, or legal authority iii. Moral Pressure and Economic Coercion a. Normally insufficient predicates for false imprisonment iv. Confinement of Elderly a. False imprisonment used to redress involuntary confinement of senior citizens in nursing homes/hospitals, esp where physical coercsion and unwilling detention are evident J. Defenses i. Consent is the leading defense ii. Peterson v. Sorlein (girl joined religious cult, parents removed her to half-way house) a. Ct decided girl lacked capacity to consent for first 3 days, but regained senses during the rest of the time and therefore consented by not leaving a. If party lacks capacity to consent = implied consent b. Parents given privilege of necessity to perhaps inflict harm to prevent a greater harm a. Problem = who decides what is reasonable given situation? b. Girl was an adult, should be able to enjoy freedom of belief K. Tresspass to Land: Intentional tort designed to protect possessor of lands interests in that land i. LAND: included anything attached to land (harvested crops from land become chattels) Tresspass to Land Prima Facie Elements (s Burden of Proofunlike other torts where has burden) 1.) Intent Doesnt have to be intent to be a trespasser, but simply intent to be there Doesnt matter how benign the intention is (mistake not an excuse b/c there is intent) 2.) Physical presence on/under/above land possessed by another 3.) No Consent or Privilege L. Trespass to Chattels and Conversion (both considered intentional torts) i. Elements: a. Intent b. Interference with property c. No Consent ii. Similar in nature, differ in the amount of interference with the property and way damages are calculated a. MINOR (trespass to chattels) b. MAJOR (conversion) c. Need to look at the totality of circumstances to determine if interference is minor or major (kinds and degrees of interference) a. Extent/duration of actors exercise of control, actors intent to assert a right inconsistent with others right to control, actors good faith, extent/duration of resulting interference w/ others right to control, harm done, inconvenience/expense caused (needs to be some kind of damage done) iii. Damages a. Conversion ( wrongfully kept item) a. can recover market value of property converted (what a willing buyer would pay a willing seller when neither is compelled to buy or sell) at the time and place of the conversion i. For irreplaceable items (artificial eye) damages limited to replacement value b. Alternatively, can get replevin (recovery of chattel itself plus incidental damages) c. Punitive can be awarded for particularly outrageous conduct b. Trespass a. Actual reduction in value of the item plus incidental damages b. Must show either dispossession or some kind of damage present

i. Dispossession damage is inferred from any dispossession, may recover at least nominal damages for loss of possession c. Can receive nominal damages in absence of any actual damages iv. CompuServe Inc. v. Cyber Promotions (trespass to chattels for spam mail sent to customer base by use of s server) III. DEFENSES AND PRIVILEGES A. Consent (volenti non fit injuria: to who is willing, no wrong is done) i. Total Bar to Liability ii. Burden of Proof: a. s Burden (prima facie elements): needs to prove that didnt consent b. s Burden: in trespass to land needs to prove that consented to presence iii. Three Kinds of Consent a. Actual Consent: is in fact willing that the conduct occur (requires capacity to consent) b. Apparent Consent: s conduct reasonably leads another to believe that the has consented c. Implied Consent: legal fiction which the courts indulge in the absence of consent to justify desirable conduct which would otherwise be tortious iv. Actual Consent (consent in fact) a. Davies v. Butler (student died during frat drinking club event) a. At point of becoming intoxicated, lost ability to consent b. NO CAPACITY to consent if drunk/high, not mentally capable b. Must have capacity to consent to the particular conduct or substantially same conduct c. Agents: if authorized by another person to act on their behalf, agents actions are then attributed to the principal (all s in frat found guilty if cheering on actions) v. Apparent Consent a. OBrien v. Cunard (immigrant being given shot on board ship sued b/c blood poisoning) a. Ct. found s conduct would reasonably lead someone to believe that she consented b. Silence or no action can be considered as intent if reasonable person would consider it to be so vi. Implied Consent a. Miller v. HCA, Inc. (emergency treatment on newborn led to severe med. implications) a. Parents didnt give actual consent, general rule is unconsented medical procedure is considered a battery b. Exception: emergent circumstances situation medical providers relieved of duty to obtain consent altogether (docs couldnt evaluate child until birth) b. If behavior is such to indicate consent, then actor is jusitified despite unexpressed feelings (Ex. preservation of life or limb/emergency services) vii. Consent Given because of Mistake a. DeMay v. Roberts (doctor brought non-medical trained assistant to help deliver child) b. Must decide whether consent given was Valid or Invalid (2 question test) a. Was mistake sufficiently material to affect decision to consent? b. Was s mistake induced or known by ? c. If answer to both ?s is yes, consent was INVALID ( in DeMay proves yes to both of these questions) viii. Consent Resulting from FRAUD (Courts dont recognize anymore b/c very flexible) a. Fraud in the factum = mistake essential to transaction consent invalid b. Fraud in the inducement = mistake regarding peripheral issue consent valid a. Peripheral (collateral to the issue) b. Distinction between the 2 is not helpful b/c facts can be argued either way ix. Mistake not induced by or known to a. Mutual Mistake Consent is valid a. Fricke v. Owens (man went to rescue co-worker in tank, injured by gas in tank) b. Unilateral Mistake Consent is valid a. Mistake by not caused or known by c. Duress Consent is invalid if given under duress

Criminal Acts SPLIT AUTHORITY a. Some states say consent is valid, others reject b. Restatement of Torts says consent to illegal acts is valid c. Hudson v. Craft (illegal boxing match, wanted to sue promoter, was allowed) i. Statute making boxing illegal meant to protect participants not promoters, suit was allowed to continue x. Plaintiff bears burden of proof for consent EXCEPT IN TRESPASS TO LAND xi. Consent as an AFFIRMATIVE DEFENSE (burden on to prove affirmative defense based on preponderance of the evidence) B. Defense of Self and Others i. Self Defense (to intentional torts) a. Must reasonably believe that force is necessary to defend oneself from imminent harm b. Force must be reasonable under the circumstances ii. Use of Deadly Force (force likely to cause death or serious harm) a. Deadly force can ONLY be used in self defense in RESPONSE to deadly force iii. Silas v. Brown (garage attendant shoots big dude in foot after being threatened) a. Deadly force allowed b/c of size discrepancy b/t parties ( had no duty to retreat b/c he was in his own place of work) iv. Self Defense as a Complete Privilege ( not liable, bears cost of injury) a. Must use proportional level of force in return b. Mistake about need for self-defense (privilege is still good, burden is placed on if they create a fear of danger by pretending/giving impression of an attack) c. Retailiation (self defense will not apply) d. Words without hostile act (NEVER justifies use of self defense) v. Duty to Retreat a. NO duty to retreat over non-deadly force, but use of deadly force establishes duty to retreat b. Common law exceptions a. No duty to retreat in own home b. No duty in most cases when at work c. No duty if escape will put you in harms way vi. Defense to Others (COMPLETE PRIVILEGE + bar to liability) a. Privilege can be raised if actions were taken to prevent harm to others b. Must have reasonable belief that there is need to take reasonable force to prevent party from harming others (allowed to use same amount of force to protect 3rd parties as you would to protect yourself) c. Drabek v. Sabley (man puts kid in his car after snowballs were thrown at his car, once he put child in car force became excessive) vii. Mistake to Defense of Others (mistaken intervention) a. Split authority policy allows leeway just in case but mistake must be reasonable b. Traditional mistake invalidates priv in the defense of others b/c party has less information about situation then 3rd party does c. Modern mistake DOES NOT invalidate priv within reason, consistent w/ self defense C. Privileges Relating to Property i. Defense of Property (COMLETE PRIVILEGE) a. Katko v. Briney ( set up shotgun spring trap in cabin that was being looted) b. NO PRIVILEGE to use deadly force unless you are in serious danger a. Force used must be proportionate to force being used to take property c. No trespassing signs do not immunize from liability, doesnt know consequences of trespass b/c sign does not specify. d. Mistake in relation to propertyprivilege is valid if reasonable mistake of fact is present ii. Recapture of Chattels (COMPLETE PRIVILEGE) a. Efforts to recover personal property taken by fraud, force or other tortious conduct b. Can use reasonable, non deadly force to recover property if dispossession is discovered promptly (must exercise FRESH pursuit and prompt discovery) c. Any mistake regarding action on wrong person or unreasonable delay in purusing chattel destroys privilege

d.

iii. Detention for Investigation (COMPLETE PRIVILEGE) a. Dillard Dept. Stores v. Silva (store sec. guard used unecessary force in detaining customer, did not let him produce receipt from car) b. Retail stores have privilege to detain customers suspected of theft for a reasonable amount of time in order to investigate a. Reasonableness of time? i. Reasonable time necessary, depends on circumstances, must be prompt and w/out undue detention b. in Dillard used unreasonable force (handcuffs, physical touching_ c. Mistake in detention: for shopkeepers, does not invalidate privilege, law wants to protect them in certain situations D. Public + Private Necessity i. Privilege of Necessity = to inflict a lesser harm in order to prevent a greater harm ii. Public Necessity (COMPLETE PRIVILEGE) a. Where it is apparently necessary to avoid a greater harm to the public through invading interests of another party (exact # of people deemed necessary for public necessity has not been determined by courts) iii. Surocco v. Geary (where s house was destroyed in order to stop a fire from spreading) a. Traditional View not liable even though tactic did not work to stop fire, it was a reasonable decision to destroy house (privilege of public necessity) a. Actions must be reasonable to invoke privilege, unreasonable actions would have shifted liability to b. Privilege extends to private parties as well, not just public officials (cops, fire) iv. Wegner v. Milwaukee Insurance (Police destroyed s house while attempting to apprehend criminal) a. Minority View Privilege to exercise must be less then harm that is possible to occur a. Not for ALL public necessity cases, only ones involving municipality b. Municipality responsible for reimbursing damage to 3rd parties house b/c the city as a whole was benefitting at the 3rd parties expense c. Partial Privilege police were legally entitled to do what they did, but had to pay for damages v. Private Necessity (Partial Privilege) a. Invading the rights of a smaller group of people through necessity ( usually liable) b. Cant induce greater harm to protect something of lesser value c. Legally jusitified but still need to compensate a. must prove actions were reasonable + no alternatives available vi. Vincent v. Lake Erie (steamship owner tied up shipped during storm, badly damaged dock) a. Ct. decided it was ok to keep ship tied up, but responsible for damages it caused a. As , dont have to make MOST intelligent decision under circumstances, only a reasonable one (destruction of ship vs. minor damage to dock) vii. Ploof v. Putnam (Dock owner untied s boat during storm causing injuries) a. Distinct from Vincent, had no right to resist legitimate exercise of private necessity b. Human life/safety is more important then property damage a. Partial privilege transferred to Complete privilege for E. Unlawful Conduct i. Public policy generally denies judicial relief of those injured in the course of committing criminal acts ii. Barker v. Kallash ( attempting to recover for injuries sustained while making illegal pipe bomb) a. unable to recover b/c injuries were suffered as a direct result of illegal conduct b. Creates exception to Katko v. Briney a. must be engaging in prohibited activities and conduct constituted a serious violation of law AND injuries were the direct result of that violation IV. DAMAGES A. Plaintiff bears burden of proof for damages i. Only have one chance to recover, inevitably an element of speculation B. Anderson v. Sears Robuck (mother/daughter severely burned by exploding heater) i. Creates Maximum Recovery Rule: max amount a jury can award (5 elements)

C.

D.

E.

F.

G.

H.

I.

Past and Future physical/mental pain a. Per diem approach (damages awarded by day-to-day calculation) b. Majority of cts allow per diem arguments b. Future medical expenses a. Ongoing medical care for special needs c. Loss of earning capacity a. Assumptions based on life expectancy + years of employment b. Difficult to calculate b/c of discounting future earning to their present value and must take inflation into account d. Permanent disability and disfigurement Remittitur (judge thinks award is too high, used in excessive damages cases) i. Only in federal courts, has 2 options a. Accept judges own assessment b. Go back to jury and retry on damages alone (risk getting nothing) Additur (judge thinks award is too low, very rare) i. Barred from use in federal cts. (violates 7th amendment right to jury trial), 2 options a. Accept higher amount b. Go back to jury and try on damages alone (risk getting nothing) Loss of Consortium Damages i. Legal right to company, affection, and service of spouse a. Included medical expenses paid for spouse, cost of hiring work spouse did ii. Includes parents, children, grandchildren as well Hedonic Damages i. Loss of ability to engage in lifes pleasures ii. Traditionally no award for loss, recent courts have considered as a component of physical and mental pain + suffering Collateral Source Rule i. s recovering compensation from source entirely independent of tortfeasor a. Insurance, pension, continued wages, disability payments a. Subrogation: s usually not able to double recover b/c insurance companies will collect some money back if compensation is high (exception: 9-11 families) ii. Helfend v. Southern California ( did not want jury to be told of insurance coverage) a. Ct. agreed with , tortfeasor should not benefit from victims prudence in having insurance iii. Not available in all jurisdictions iv. Public Policy: want to encourage people to be insured, telling jury would deter people from paying for insurance b/c jury would award lower damages Avoidable Consequences Rule i. Places responsibility of minimizing damages on , cant claim damages for what would be a permanent injury if injury could have been avoided by submitting to treatment when a reasonable person would under the circumstances ii. Zimmerman v. Ausland ( didnt pursue surgery and suffered permanent injury) a. was not unreasonable in not getting surgery, was not advised by doctors that she must have the surgery iii. Burden of proof is on the to prove s actions in avoiding consequences were not reasonable Survival and Wrongful Death Actions (both granted by statute) i. Wrongful Death creates cause of action for the benefit of those left behind when the has tortiously killed someone a. Under NY law, can only be brought by distributee (someone allowed to share in estate of someone who dies w/out a will, every state has diff. statute regarding it) a. Can recovery only Pecuniary damages (financial, tangible damages) b. Gonzalez v. NYC Housing (grandmother killed after robbery attempt) a. Grandkids were seen to have lost the welfare and responsibilities of the decedent (homemaker tasks) ii. Survival prevents a lawsuit from coming to an end when one of the parties dies, the action survives the death of either party (action brought be estate of decedent) a. Can sue for pain and suffering of victim if proven that they experienced it before death iii. Wrongful Death claims are derivative of Survival claims (if survival is barred by contrib negl so will wrongful death, as well as loss of consortium)

a.

J.

Damages for Loss of Earning Capacity i. Inflation a. OShea v. Riverway Towing Co. ( injured, unable to continue work, asks for damages) a. used economist to testify as basis for estimating wages lost b. Court awarded damages: i. previous wages do not put a cap on award of lost future wages ii. inflation should be considered both when projecting earning AND when looking at interest rate (either both or neither) ii. Taxation of Awards a. Compensatory damages in cases including physical injury are NOT taxable b. Punitive damages and some non-physical harm damages (defamation, pain/suffering) are taxable (wages would have earned and interest/dividens earned are taxable) K. Punitive Damages i. Damages intent on punishing the tortfeasor and deterring others from similar conduct ii. Conduct must be particularly blameworthy (views vary from state to state) iii. Supreme Court: very rare that punitive damages will be more then 9 times greater then award of compensatory damages a. State Farm Mutual v. Campbell ($145 million in punitive ruled excessive, looks to 3 areas of reasonableness) a. Degree of reprehensibility b. Disparity between actual or potential harm suffered by the and the punitive damages award c. Difference between the punitive damages awarded by the jury and civil penalties authorized or imposed in comparable cases iv. Liability Insurance for covering punitive damages a. View is split whether allowing coverage is against public policy v. Majority of states require clear and convincing evidence before punitive damages can be considered vi. Fed Tort Claims Act doesnt allow fed govt to be held liable for punitive damages NEGLIGENCE Prima Facie Elements Duty Breach Causation -Proximate -Factual Damages V. NEGLIGENCE A. Concept of Duty i. Palsgraf v. Long Island (paramount negligence case: dropped box of firecrackers while attempting to board train, explosion caused to get hit with falling object) ii. MAJORITY (Cardoza): duty does not exist in this case a. It was not reasonably foreseeable that this particular was at any risk, negligence is relational b. has a duty to exercise care only if there is a risk to be reasonably perceived iii. DISSENT (Andrews): duty is universal, everyone owes to the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others a. Agrees w/ majority that not all s will succeed b/c they will not be able to show proximate causation b. PROXIMATE CAUSATION: there will be a line drawn saying harm is too far removed to hold the liable iv. ALI endorsed Andrews view of negligence but endorsed Cardozas result when drafting the 3 rd Restatement of Torts B. Negligence Balancing Test (how foreseeable must harm be before liability can be attached?) i. Nussbaum v. Lacopo ( lived on golf course, ball hit ) a. No liability b/c careless performance of an act does not necessarily result in actionable negligence (shot was not directed towards in manner that would put him in danger) b. Courts view not very good, use % likely to cause harm test

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ii. Gulf Refining Co. v. Williams (oil drum malfunctioned and exploded on ) a. Actor will be liable for all such harm as a reasonably prudent person would or should have anticipated as the natural and probably consequences of act b. Duty of care around a dangerous commodity (gasoline) is higher than normal c. Balancing of FORESEEABILITY and RISK, must look at foreseeability in the gravity of the risk of harm iii. U.S. v. Carroll Towing Co. ( negigently moved lines of barge, broke off collided w/another ship and sank) a. claim the should have had an attendant (bargee) on board ship to watch for such problems b. Introduces Learned Hand Balancing Test (B < L x P) Burden, Loss, Probability a. If burden of preventing a loss is less then severity of potential loss times probability loss will occur, then actor had duty to take steps to prevent loss from occurring c. In Carroll a. Probability of barge breaking free (very high) b. Probability of loss of ship, cargo, other ships (very high) c. Burden of keeping bargee during daytime hours (not very high) d. Court concludes: Burden of keeping bargee < Prob x Loss i. Actor had duty to take steps in preventing loss d. Equation not used when communicating with juries (could easily confuse them) a. Instead convey reasonable person standard iv. Chicago v. Krayenbuhl (UTILITY)( child foot severed when playing in unsupervised R.R. equipment) a. Court examines relationship between negligence and public good a. Utility factor added to Learned Hand test i. Utility is bringing the greatest amount of good to the greatest number of people b. Benefit to public is determined based on social interests and likelihood activity will advance those interests c. Ct. determined utility x burden < probability x loss (R.R. negligent in not locking turnt.) a. Burden low (easy to put lock on), probability (high b/c kids were known to play on equip.), loss (high injury probability), utility (RR turntable high utility) C. Reasonable-Person Standard i. Standard used by juries as opposed to Learned Hand Formula, assumption is that juries will undertake Learned Hand test anyways ii. Jury is instructed as to what to take into account when determining what should be considered reasonable iii. Considerations jury may take into account a. Emergencies a. Young v. Clark (car crash caused by another driver ahead of traffic) i. Ct. saw as acting reasonably, no evidence showing was driving recklessly or caused the emergency b. Sudden Emergency Doctrine (not applied by all states) i. Only reasonable actions are required when actor is put in an emergency situation c. Medical Care in Emergencies i. Good Samaritan statutes typically provide that volunteers who render aid at scene of an accident are liable only for conduct more blameworthy than ordinary negligence b. Physical Disabilities a. People with phys disabilities have duty to observe same amount of care as people in their situation i. How a reasonable blind or deaf person would act? c. Good Faith a. Taking precautions in good faith not enough to excuse negligence, reasonable person standard was meant to give some sort of predictability of human behavior (Vaughan v. Menlove hay-stack on fire case) d. Intoxicated parties

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e.

f.

g.

h.

Intoxication not an excuse to liability, a reasonable person would not have been intoxicated in that situation (exception is involuntary intoxication) Religious Beliefs a. Williams v. Bright ( refused blood transfusion b/c of religion, attempted to recover for damages resulting from accident) i. Ct. issued jury instructions asking how a reasonable Jehovahs Witness would have acted in situation (CANT DO THAT) ii. Govt not allowed to set a standard for any religious beliefs Age a. Goss v. Allen ( collided with while skiing down a beginners slope) i. Ct. stated required standard is that of a reasonable person of like age, intelligence and experience under like circumstances (cutoff age 18) ii. EXCEPTION: when children are undertaking an adult activity (ex. firing a gun, driving a motor vehicle, hunting) Mental Deficiencies a. General rule: mental illness normally has no affect on reasonable standard of care i. Permanent: should give rise to liability b/c precuations should have been taken ii. Temporary: unanticipated event of insanity, cant hold liable b. Breunig v. American Family Ins. (car accident caused by driver having mental delusions) i. Limited Exception to General Rule 1. Cant hold person responsible for conduct which he is incapable of avoiding and which incapability was unknown to him prior to the accident 2. Sudden mental incapacity equivalent in its effect to a physical cause (heart attack, stroke, seizure) and should be treated alike 3. PAST CONDUCT of insanity can destroy exception c. Mental illness can be relevant when determining if was comparatively negligent (injured s incapable of protecting own interests) Legal + Medical Malpractice (pg 272-276) a. Attorney owes duty of care to anyone who becomes a client, even if relationship is created informally b. Medical professionals have NATIONAL STANDARD c. Issue is whether an attorney acted reasonably, not whether they acted in good faith i. Not act of negligence if attorney makes decision which a reasonably prudent attorney COULD make in the circumstances d. Heavy burden of proof on Plaintiff (must prove s breach of applicable standard of care resulted in damage) e. DEFENSES to Malpractice i. Contributory Negligence (client fails to provide necessary info) ii. Failure to Appeal iii. Fee Offsets iv. Exoneration or Innocence f. Damages normally include only economic loss suffered by clients g. Biomet v. Finnegan Henderson LLP (attorney sued for breach of care for not raising an objection to punitive damages) i. Courts 3 prongs for legal malpractice 1. must establishapplicable standard of care 2. Breach of that standard occurred 3. Causal realtionship b/t the violation and the harm ii. Attorneys decision was an exercise of professional judgment and exercised reasonable care in making his judgment h. Russo v. Griffin (attorney sued for not including non-compete clause in K) i. Court endorses a statewide view for standard of care

a.

12

i.

j.

ii. Appropriate standard of care for lawyer is that degree of care, skill, diligence and knowledge commonly possessed by a reasonable prudent lawyer in this jurisdiction Doctrine of Informed Consent i. Imposes a duty on a physician or surgeon to inform a patient of his options and their attendant risks 1. Breach of this duty destroys patients consent 2. Has been held as applicable to attorneys, must inform clients of potential claims of law/choices of action ii. Exceptions to Informed Consent 1. Disclosure detrimental to patient (sensitivity) 2. Emergency situation 3. Common knowledge or reason to believe patient already knows risks iii. Scott v. Bradford ( had surgery, wasnt told of possible consequences) 1. Ct. takes minority view on informed consent 2. Minority subjective stnd, what would this particular do? 3. Majority objective stnd, based on reasonable person Gender i. Conclusions of Carol Gilligan based on gender (pg 291) ii. Men (dont look at specific parties) 1. Examine in the abstract (cost/benefit) iii. Women (look at relationships) 1. Focus on responsibility, caring, relationships

STANDARDS OF CARE Does legislation/regulation explicitly create standard of care for Tort case? -Apply to facts -Constitutionality Will Judge choose to adopt legislation/regulation as standard of care? - member of class meant to be protected? -Type of harm mean to be prevented? -Causation (Stachniewicz 3rd question exception) Procedural effect of violation of legislation/regulation -Per se -Prima facie -Some evidence Compliance with legislation -If no special circumstances, conclusively proven non-breach -If special circumstances, then might be breach of duty iv. Judge-Made Standards -disadvantage of fact finder standards is they are determined on case-by-case basis, whether has exercised reasonable care in similar cases may give rise to different results a. Helling v. Carey ( medical malpractice suit for misdiagnosing glaucoma) a. Very rare case, court stepped in and establishing a standard of care v. Standards Created by Statute (ct taking shortcuts to desirable duty) a. Explicitly creates standard of care for tort cases b. Ct can also interpret implicitly determined statute (asks 2 questions) a. Is the member of the class meant to be protected? b. Is the harm type sought to be prevented? vi. Standards of Care based on Legislation -Ct may determine that it will adopt the terms of the statute as embracing the applicable level of care for civil suits (essential inquiry is whether statute was intended to protect this class of persons from this type of harmif yes ct may find it appropriate to say statute defines what a reasonable person would do under the circumstances) a. Gipson v. Kasey ( gave prescription drugs to who died) a. Criminal statute established duty of care to people who have not been prescribed drugs (no medical need + not instructed on how to take them)

13

Stachniewicz v. Mar-Cam Corp. ( injured in bar fight, standard of care for owner?) a. Both a statute (legislative material) and regulation (executive agency) in place regarding conduct at the bar b. Ct found it reasonable to assume standard of care was present in the regulation, it was intended to keep patrons of bar safe from injury vii. Unexcused Violations of Statute a. Martin v. Herzog (car accident, driving w/out lights, driving in center of road) b. Ct concluded when an actor violates a statute that the court decides breaches a standard of care, that is the law (per se) c. 3 views as to the procedural effect of evidence establishing unexcused violation of a standard-setting statute (can be avoided by an excuse) a. Negligence per se (negligence in itself) i. Unexcused violation conclusively establishes that breached a duty of reasonable care to the b. Prima Facie Evidence i. Evidence of the violation raises a presumption of negligence, breach of duty is established if not rebutted by proof or evidence of an excuse c. Some Evidence i. Proof of a violation is only some evidence of negligence which the jury can either accept or reject viii. Excused Violations of Statute a. Ranard v. ONeil ( child ran into street, hit by car, violated statute for pedestrians) a. Ct found statutory violation may be excused if actor lacked capacity to know risk involved b. Excuses to statutes (relieving negligence) i. Childs nature/incapacitation ii. Actor exercises reasonable care iii. Actor doesnt know of factual circumstances rendering statute applicable iv. Violation of statute is due to confusing way in which requirements are presented to public v. Actors compliance would have involved a greater risk b. Zeni v. Anderson (woman walking on common footpath on road struck by car) a. Walking in street was violation of statute but evidence was presented that it was more dangerous to walk on sidewalk then actual road (someone else had previously walked on sidewalk and fallen earlier) ix. Compliance with Statute a. Montgomery v. Royal Motel (s robbed in hotel room, didnt need to take additional care then was already provided) a. In absence of special circumstances, compliance with statute is sufficient to satisfy duty of care x. Special Standards of Care a. In general, courts have not accepted special standards of care b. Exceptions a. Common Carriers (more demanding standard) b. Gratuitous bailee (someone holding property for another w/out charging a fee) VI. PROVING NEGLIGENCE Ordinarily burden on the to prove by a preponderance of the evidence A. Evidence of a Custom i. Compliance with a Custom (Inference of non-breach) ii. Non Compliance with a Custom (Inference of breach) iii. The T.J. Hooper (tugboat sank, boats not equipped with working radio to hear storm reports) a. Ct found there was no custom one way or another whether radio was required to be present on board (used some evidence approach, inference of non-breach) b. Could still have been negligent in absence of custom if it was unreasonable iv. Low v. Park Price Co. (auto mechanic custom of leaving car parked outside, transmission stolen) a. Duty of care shifted to , had to prove acts were reasonable as a mechanic B. Circumstantial Evidence 2 types of evidence (Circumstantial and Direct)

b.

14

Circumstantial -evidence not of a disputed fact, but of one or more other facts from which the existence or non-existence of the fact in issue may reasonably be inferred Direct tends to directly support fact at issue i. Constructive Notice ii. Banana Peel Cases (Goddard + Anjou) a. Actual Notice (knew the actual peel was present) b. Constructive Notice (should have known that the peel could have been present) c. Duty is determined by knowledge of peels presence iii. Sheehan v. Roche Bros Supermarket (mode-of-operations approach) a. Shifts burden of care to to prove reasonable care was taken 1. Res Ipsa Loquitur the thing speaks for itself (RIL C. ) -works as a common sense doctrine, w/out RIL would be often unable to establish s negligence RES IPSA LOQUITUR ELEMENTS 1) Character of accident most likely not have happened w/out negligence on part of the 2) had control of the instrumentality that caused the harm i. Form of Circumstantial Evidence ii. If successfully proven by , establishes BREACH and CAUSATION a. Court decides if has given sufficient evidence to submit res ipsa to jury a. From the evidence could a reasonable jury decide that partys negligence probably caused the accident and resulting injuries? b. Works as a last resort to avoid directed verdict/summary judgment iii. Test outlined in Mobil Chemical Co. v. Bell (what must establish to obtain res ipsa instruction) a. (1) Character of accident most likely not have happened w/out negligence on part of the b. (2) had control of the instrumentality that caused the harm a. CONTROL: important distinction, which party had control iv. Possible rebuttals for res ipsa a. Client did not have control when accident occurred b. Nature of the accident likely to occur w/out any negligence present v. Procedural Effect of RIL a. When judge gives RIL instruction to jury, does not automatically win suit a. (1) Jury would be entitled but not compelled to infer was negligent i. gives inference of negligence ii. MAJORITY OF STATES USE THIS VIEW b. (2) Shifts burden of production of evidence to i. Jury must find to have committed breach and causation unless they come forward w/ evidence to rebut finding of negligence c. (3) Shifts burden of persuasion to to prove they were not negligent by a preponderance of the evidence vi. Control a. Focused on which party had control over the instumentality that caused injury b. Mahowald v. Minnesota Gas a. Ct identifies additional way to prove RIL, even if didnt have exclusive control, they had responsibilty to control Gas Lines and keep them safe vii. Plaintiffs Conduct a. Strict rule of Comparative negligence not used in RIL b. Most states follow Montgomery Elevator rule a. Under comparative negligence a RIL is required to show only that the s inferred negligence was, more probably than not, a cause [not the cause] of the injury,even though s negligent acts or omissions may also have contributed to the injury. viii. Multiple Defendants a. Ybarra v. Spangard (primary multiple RIL case)

15

b.

c. d.

VII. FACTUAL CAUSATION Causation in General (need both factual and proximate causation) Factual: did it actually cause s injury? Proximate: even if it did cause the injury, do we want to hold the liable?

Unconcious injured during a surgery, couldnt identify precisely who was the negligent party in the operating room RIL can be applied to multiple s, every is bound to exercise ordinary care to see that no unecessary harm came upon during surgery a. s must be working in a joint exercise (ex. surgery) Public policy: would never be able to prevail if s agree not to speak of who was negligent Limitation if multiple s are strangers, RIL typically not allowed, need some sort of causal relationship amoung s a.

Proving Factual Causation (dont need all of them) (1) But for causation = indispensable (Williams) -greatly multiply the chances (Reynolds) -factual causation cant be speculative (Kramer) (2) Independently sufficient but for would fail if 2 or more causes concur to bring about an event and any of them, operating alone, would have been sufficient to cause identical result (3) Otherwise substantial factor courts dont like this proof, Rejected in 3rd Restatement (4) Multiple fault and alternative liability (Summers) (5) Market Share Liability A. Proving Proximate Cause i. Williams v. Steves Industries ( car ran out of gas + stalled in highway, hit by truck) a. 2 elements of proximate cause (cause in fact, foreseeability) [same as factual/prox] a. Factual causation (cause in fact) i. If negligent act/omission is substantial factor in bringing about injury AND w/o which no harm would have occurred, act was cause in fact of injury (apply but for test, but for act harm would not have occurred) b. Proximate causation (foreseeability) i. Actor of ordinary intelligence should have anticipated dangers of negligent act ii. Not required that accident is foreseen, but that injury be of such a general character as might reasonably have been anticipated b. found to be comparatively negligent because of her conduct of not having enough gas in care to make the trip c. Not having gas in car was an indispensible cause of the injuries received ii. must show all 4 elements of negligence and factual + proximate causation present to prove comparative negligence B. But For Test: sine qua non FACTUAL CAUSATION i. Possibility that an accident may have happened anyway, w/out negligence, does not break cause and effect chain b/t negligence and injury where s negligence a. Multiplies chances of accident and b. Is of character naturally leading to its occurrence ii. post hoc ergo propter hoc after this therefore because of it a. must determine cause following someones behavior as opposed to cause relating to someones behavior iii. Reynolds v. Texas and Pacific R.R. ( falls down unlighted RR entrance steps) a. Plaintiffs behavior might have been likely to happen, but s actions made it much more likely to happen iv. Kramer Service v. Wilkins (glass shard falls from door, cuts s head) a. Jury could not reasonably find liable for resulting cancer b. Must be shown by a preponderance of the evidence that s actions more likely than not caused the cancer (expert witness said only 1% chance of the cause) C. Independently Sufficient Causes (but for test will not work)

16

i. Two or more causes concur to bring about an event, and any one of them, operating alone, would have been sufficient to cause the identical result, some other test is needed ii. Anderson v. Minneapolic (2 fires set by arsonists, only one proved to be set by ) a. Courts test Substantial Factor Test b. must establish that s conduct was a substantial or material fact in causing the destruction (dont need to prove but for cause of fire or negligence was an independently sufficient cause) D. Loss of a Chance Rule i. Used primarily in medical malpractice cases, views a persons prospects for surviving a serious medical condition as something of value a. When physicians negligence diminishes or destroys a patients chance of survival, patient has suffered real injury b. With single , conduct measured by the but for test ii. Majority of courts recognize loss of chance a. Viewed as a theory of injury as opposed to theory of causation iii. Some states limit recovery when starts out with more then 50% chance of survival iv. Measured a. What is being valued b. How to calculate monetary value for loss of chance c. Fact finder must determine damages based on formula (most appropriate way is through proportional damages) Modifications of the Traditional Approach -burden of proof on causation shifts from to E. Multiple Fault and Alternative Liability i. When multiple s at fault, burden of proof shifts to a. Nature of the type of acts that occurred makes it impossible for to determine which was liable b. Narrow set of circumstances that lead to burden shifting to a. Better info accessible to vs b. Small # of s c. More then one breached duty and acted tortiously d. All s are before the court ii. Summers v. Tice (3 men hunting, 2 s shot at bird uphill, injuring ) a. Distinct from Ybarra b/c in Summers both s breached duty by shooting uphill, in Ybarra it was assumed that more then one did not breach their duty (also all s were in a professional relationship in Ybarra) F. Market-Share Liability and Enterprise Liability i. Sindell v. Abbott (DES case against many s, institutes market-share liab theory) a. Combines liability theories from Summers (multiple fault/alt liab) a. b/t innocent and negligent , should burden the cost b. is in better position to bear cost of liability c. burden of proof of showing they did not manufacture drug would be lessened if joined manufacturer to case b. Market Share Liability Requirements a. All s have breached a duty b. must join substantial share of manufacturers c. Burden shifts to to prove they could not have made DES that s took d. Damages: Market Share (not defined by ct.) i. Dissenting Justice: market share too broad, deep pocket theory is not appropriate, rule should be determined by legislature ii. Hymowitz v. Eli Lilly and Co. (DES case, addresses problems in Sindell of damages) a. Modified Market Share Liability using a national market view a. Practical adavantage b/c hard to determine market share on local basis b. Concerned with how the injured the general public more then indivd a. Very different, tort law usually looks at v. relationship c. Damages for liability will be several only a. Joint and Several liability

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i. Several: s only liable for amount of damages related to them ii. Joint: s liable for damages/fault of all joined parties d. Public policy goal attempt at administrative efficiency (anticipation of future DES cases) e. Allowed revival of claims from cases where 1 year statute of limitations had passed G. Concerted Action Liability i. Herman v. Wesgate (people jumping off boat, received injuries) a. Concerted action liability rests upon principle that all those who took pare in the negligent activity are equally liable w/ b. Any assisting or encouragement is legally equivalent to taking part in the tort ii. Examples a. Civil Conspiracy a. Conscious agreement to do something illegal b. Aiding and Abetting a. Substantially assisting alleged joint tortfeasor c. Joint Enterprise a. Conscious agreement to cooperate in a joint endeavor for mutual benefit VIII. PROXIMATE CAUSATION -deals with how fair it is to make liable for all consequences of their negligent act PROXIMATE CAUSATION ELEMENTS 1) Direct Causation 2) Foreseeability -Modified Foreseeability -Eggshell Skull Doctrine -Damage to the same general sort that could be foreseen -Too tenouous or remote Proximate Cause Policy Aspects -Prox cause rule is essential to prevent the law from over-deterring conduct that can cause injuries -proper deterrence requires making those who contemplate dangerous conduct liable for all of the increased harm that occurs whenever that dangerous conduct is undertaken -important in cases involving defendants who are vicarious liable (employers) Differs from State to State -Direct Causation (Polemis) completely outdated -Foreseeability (W.M. #1) no state uses pure foreseeability, W.M. #2 Modified foreseeability -Result w/in the Risk (DiPonzio, Merhi) popular within courts -Eggshell Skull Doctrine (McCahill) foreseeable conseq are same general type as conseq that occur -Medical Negligence yes, as long as none of the exceptions apply -Too remote/Tenuous (Kinsman No. 2) rarity and anomaly -Purely economic loss courts are hesistant, but applied to Kinsman No. 1 What Courts Look at in Proximate Causation (pg 437) -vary depending on the case, tend to be ambiguous Directness (foreseeability of any damages) - did it happen b/c of parties conduct? (looking backwards) Foreseeability (precautions vs. risk) - what would happen as a result? (looking forward) Risk -Normal risk? Ordinary risk? A. Direct Causation i. liability is assessed whenever there is a direct connection between the negligence of the and the injury to the ii. Polemis (outdated, not followed by courts) a. As long as it is foreseeable that some kind of damage would pursue, then will be liable for ALL resulting damage that occurs (focuses on directness) B. Foreseeability

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i. Wagon Mound 1 (wharf damages after oil leaked from barge and set fire by welders on dock) a. Court rejects Polemis view, oil leak was unforeseeable to workers (actions of workers were not direct cause of damage to wharf) ii. Wagon Mound 2 (same fire destroyed 2 ships at the wharf) a. Reasonable person would attempt to prevent foreseeable risk b. Even if possibility of damage is only slightly foreseeable, still need to take precautions if harm could be severe and prevention is minimal c. Modified foreseeability approach + cost/benefit analysis C. Eggshell Skull Doctrine i. If a tort is committed, will be liable for all injuries that occur to , even ones that are not foreseeable due to fragility (must take how he is) a. is liable for all physical consequences, so long as they do not stem from superseding causes ii. McCahill v. New York Transp. Co (cab driver hits alcoholic, dies of delerium tremors) a. Fact that injury is more extensive in scope than one expects does not relieve of liability b. Decedents alcoholism might be relevant to reduction in damages, but still liable iii. Criticism of Eggshell Skull a. It inflates determination of fault b. Does work as a balancing test, just as good of a chance of bumping into a strong/sturdy person as much as a fragile person D. Manner of Occurrence + Kind and Extent of Harm i. Merhi v. Becker (company picnic, alcohol served, not enough security) a. Failure to provide adequate security equal to foreseeable risk presented by large number of people being served alcohol was proximate cause of s injuries b. Dont need to show absolute certainty of specific risk, only that s negligence significantly multiplied the probability of harm occurring ii. Kinsman No. 1 (boat ripped loose, floated downstream hitting another ship and ran into bridge, forming a dam and causing property damage) a. Court finds 3 s were proximate cause of damages to property a. Even if exact chain of events wasnt foreseeable, all the factors taken together should have formed presumption of risk could occur b. Circumstances were such that failing to exercise due care, s exposed s to danger iii. Kinsman No. 2 (suit by cargo ship against s who caused river blockage) a. s claim of loss for spoilage of cargo too tenuous to hold s liable, consequences too far removed E. Result Within the Risk -cases in which the plainly should not be liable even for some foreseeable harms i. DiPonzio v. Riordan (gas station owner not liable for s injury b/c result wasnt part of the risk) a. Type of accident that occurred was not among hazards associated w/ leaving a car engine running during operation of gas pump b. The natural and foreseeable risk associated with such action is danger of explosion ii. Example: leaving a loaded gun out where a child could reach a. If the child shoots the gun injuring a person, the will be liable b. But, if the child takes the gun and drops it on someones foot, would not be responsible for resulting injury b/c it wasnt a result of the risk a. Such an example would fail the foreseeability test iii. Commonly seen in medical malpractice cases where is injured and result of hospital treatment aggravates injuries a. General rule is who caused initial injury is responsible for ALL injuries, even those suffered at the hospital b. Exceptions (possible joint and several liability against doctor) a. Medical misconduct so extraordinary that it cant be thought of as being related to inherent risk exposed to in the first place b. If failed to seek medical care in the first place F. INTERVENING AND SUPERSEDING CAUSES i. Intervening Cause

19

ii.

iii. iv.

v.

vi.

a. Something that comes into play separate in time b. Some but not all intervening causes are superseding (ct. decides this) c. Doesnt break chain of proximate cause b/t original tortfeasor d. (foreseeable criminal acts are intervening) Superseding Cause a. Act of 3rd person which by its intervention prevents the from being liable for harm that acts caused b. Breaks chain of causation c. (unforeseeable criminal acts are superseding) Difference between the two? a. If the intervening force is reasonably foreseeable OR ultimate harm is reasonably foreseeable it is an intervening cause Foreseeable End Results a. Derdiarian v. Felix Contracting Corp. ( injured after car crashed into construction site) a. = Construction company, argued that car was a superseding cause b. Ct. rejects, says it was intervening cause b/c it doesnt matter how the harm occurs, the ultimate harm was reasonably foreseeable i. Driver of car was liable too b/c he failed to take medication to prevent the seizure c. Jury could have reasonably found that negligently failed to safeguard the excavation d. If the intervening force was an unforeseeable criminal or intentionally tortious act, then the force was a superseding cause Intervening Acts a. Spears v. Coffee (kid punched another kid at s house) a. Breach of duty by to protect child was not cause of injury b/c there was a superseding cause (punching of other child) b. The criminal act was not foreseeable b. Contrast against Nixon v. Mr. Property Management Co. ( took to vacant apt building and raped her, rapes had previously happened in building) a. Court found that b/c crime was foreseeable, it was an intervening cause b. s actions was a proximate cause of the injuries to the c. Negligence that has Run its Course (some cts focused on whether the risks created by the initial tortfeasor had run their course or come to rest prior to intervening act a. Marshall v. Nugent (original [driver] liable for injuries sustained by plaintiff [3rd party who got out to help] when he was hit by another car when trying to flag down help) i. is liable for situation b/c it had not yet returned to normal, situation was still revolving around 1st accident Special Applications of the Rules on Intervening and Superseding Causes a. Altamuro v. Milner Hotel (s husband died while trying to rescue people from burning hotel) a. Decedent husband not seen as acting imprudently or negligently as put forth in rescue doctrine (he had no duty to rescue) b. The Rescue Doctrine (covers only amateur rescuers) a. Superseding Cause: The initial tortfeasor can be liable to the victim for injuries arising from the rescuers intervention. Rest 3rd 35. If rescuers actions unreasonable than superseding cause. Another exception arises when rescuer does something unreasonable to 3rd party, and that breaks nexus. i. E.G., if while rescuing, rescuer threw someone out of window, couldnt sue hotel b/c actions are superseding cause b. Liability to Victim & Good Samaritan: If rescuer carelessly intervenes, could be liable for harm caused Rest 2nd 296 (states limit liability like in TX) c. Injuries Sustained by Rescuers: If place another in danger could be held liable for injuries sustained by rescuer. Duty of care owed by tortfeasor to the victim extends to potential rescuers (lack of proximate causation N/A) Rest 3rd 32

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d.

e. f.

g.

Defenses Based on Rescuers conduct: Std of care for rescuer is not to act rashly or imprudently (some uncertainty) SOME CTS hold that rescuer barred from recovery only by recklessness, while others indicate that contributory negligence is a defense. Rest 2nd 472 Injuries to Rescuers from Anothers Negligence in Rescue: Requirements for Rescue Doctrine to Apply i. Risk of imminent peril to the person/property of another ii. Act of intervention in response to the peril by the purported rescuer iii. must establish that peril resulted from creators tortious conduct Responding to a Peril of Ones Own Making i. TRAD: no recovery if contributory negligent to the creation of the peril ii. MOD: rescuers contribution to the creation of the peril will not necessarily bar reliance on the rescue doctrine,taken into account in determining compensation damages

II. LIMITED DUTY: FAILURE TO ACT (exceptions to the usual rule on duty) Common Law: NO DUTY to render assistance to another, no matter how easily aid might be furnished and regardless of whether the failure to act is inadvertent or intentional (unless special duty arises). Palsgraf (no duty to everyone) & proximate cause are safe harbor for . Look at exceptions to general rule that have to exercise duty of a reasonable care. GOLDFARB SUMMARY o Exceptions to No Duty to Act: Special Relationship between and ( Common Carrier. Landlord, Voluntary Undertaking) Special Relationship between & wrongdoer (Peck, Tarasgoff, Linder, Remsburg created or exacerbated hazard) caused or increased the harm/danger (La Raia, Rocha) voluntarily assumed duty (Coffee) (Soldano) If there is case law abrogating no duty to act rule in whole or in part Negligent Entrustment A Traditional Rule of No Liability for Nonfeasance 2. Johnson v. Minnesota Released convict commits crime spree a. Ct: Halfway house not responsible. No duty to control and he hadnt arrived yet. Rest 315 (1) No legal duty to control b/c no custody (steward did not arrive yet), so could not take charge b. General Rule: No duty to prevent someone from being injured by 3rd party, unless a special relation. Rest 2nd 314 (1) Parents and children (2) Master and servants (3) Possessors of land and licensees (4) Common carrier and customers (5) Pple who have custody of dangerous persons c. Failure to act or Failure to rescue, unless there is an exception that would give rise to duty. If in prison, have duty to protect someone from foreseeable harm but once released, duty no longer exists iii. Does General Rule Make Sense? Want to deter poor procedures of prison/halfway home. Not making anyone liable does nothing towards this policy. (Olympic swimmer / kid drowning in puddle example) (1) If say that Halfway House does have responsibility, where do we draw the line? (a) If not paying attention, should we be liable for 20 things going on around us that we dont notice? (b) Not just Q of swimmer and kid drowning. Other people will be hurt by death of 2 year old. Outweighs even minor harm it may cause self (Bender-look 2 relationships) (2) Rule rests on differentiation b/w Nonfeasance (failure to act) & Misfeasance (acting wrongly). Can take almost anything and say that it is either a failure to act, or a doing something wrong. (3) Good Samaritan Law: Dont require people to help 1 another, but if someone performs reasonable rescue, they are not liable. Minn. has statute that there is a duty to get involved (extremely limited) (a) **Has also been enacted for Drs helping in emergency situations (N)

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(4) David Cash Case (Nevada): Young man killed girl & friend saw attack & walked away. NV passed statute saying violation to report offenses to young children. Not a duty to stop crime. Many states have a statute for a duty report, especially for doctors, teachers, etc HYPO: Criminal @ halfway house escapes halfway had duty HYPO: Olympic swimmer 2 yr old drowning walks away swimmer not liable she didnt do anything B Qualifications & Exceptions 2. Duties Based on s Relationship to Victim or Injurer (some persons have duties to protect certain others from harm or to prevent persons in their custody from causing harm) a. De Vera v. Long Beach (Rear Ended Bus Fails to Get Information for customers to make insurance claims) iii. Exception to General Rule (Failure to act or rescue): Common Carrier/Passenger Rltsp, Rest 2nd 314 (1) Ct said: Foreseeable that the passenger would need this info. If has a relationship w/ Common Carrier, duty to act in this case. Bus driver failed to get info from car driver that hit the bus. Higher std to ccs. Specific and not expanded to all common carriers for ALL duties. (2) Ct said bus driver had duty to get info. It would be dangerous for all passengers to try to get info. Imposes no undue burden upon carrier to obtain the information. iv. Special Relationships (1) Invitors: If guest on Ds land at time need for assistance arose, may have duty of care there are limits to how much invitor must do on behalf of. Duty based power of control or expulsion in the best position to protect against harm (2) Educational Institutions: Schools have certain obligations (3) Wardens / Prisoners: Warden obliged to exercise reasonable care to prevent harm to prisoner (4) Family Members: Little precedent for special relationship on family members (5) Social Companions: Companions on a social venture there is an implicit understanding that one will render assistance to the other w/o endangering himself. b.

Kline v. 1500 Mass Landlords duty to protect in common areas iii. Exception to General Rule (Failure to act or rescue): Landlord/tenant relationship (Saelzer) (1) Ct: LL has control in common areas. Tenants by nature relinquish control over common areas, LL not an insurer of tenant safety but not a bystander either. Dont criminal acts break chain of causation? (if similar acts in past, can prevail by showing acts were foreseeable, or that there were prior similar acts as some areas require) (a) s arg proximate causation wont hold b/c foreseeable crimes are not superseding causes, they are intervening causes (lawyer: use relevant statute, reas LL industry) (b) Unlike Johnson, relationship was defined. HYPO: What if crime committed by another tenant? Is LL liable based on this reasoning? Failure to keep front door locked would not be factual cause of injury. Need to find evidence that LL knew assaulter was a criminal, or that laundry room was not well lit & lent itself to type of crime being committed. Jury would apply reasonable LL standard. (2) Linder v. Bidner (a) Liable for sons assault b/c parents had knowledge & ability to control the son, which they did not exercise. If son in CA & parents in NJ, son wouldnt be in their ability to control. (b) Why sue parents instead of child? (able to collect more money from homeowners insurance policy) (c) Generally parents not responsible for torts committed by children. (i) In this case, child is minor (18 when age of majority is 21). (ii) If son 30 & facts same, cts may say that b/c not a minor parents may not be liable. c. Remsburg v. Docusearch, Inc. (p485); s executrix sued , an information broker, after the broker disclosed to its client information about the decedent which the client used to find the decedent, whom he then shot and killed iii. Exception to General Rule (Failure to act or rescue): Business/Client/3rd Party Relationship (1) Ct: Risk of criminal conduct foreseeable (identity theft/stalking) investigator created duty to exercise reasonable care in disclosing 3rd partys personal info (especially true when investigator does not know client or clients purpose for info) (a) How to act reasonably? 1) inform pple being sought 2) background info on client (b) Under tort liable for negligent entrustment iv. Identity Theft Ct held that relationship btwn credit card issuers & potential victims of identity theft is TOO ATTENUATED to rise to the level of duty btwn them d. Peck v. Counseling Service(pg 488) Therapist gives no warning that s son would burn the barn

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iii. Exception to General Rule (Failure to act or rescue): Therapist/Patient Relationship (1) Ct: docs negligence Reas Pers Std. reasonable degree of skill, know, care ordinarily possessed and exercised by members of that professional specialty under similar circumstances (a) Therapists obligations to his patient require that he does not disclose confidences UNLESS disclosure is NECESSARY to avert DANGER to others and even done discretely. See #3 (2) Therapist believed son wouldnt burn down parents barn b/c promised he wouldnt. So why should service be liable for violent act, when therapist sincerely believed there was no risk. (a) What does court think they did wrong? (i) The therapist didnt know sons history, b/c they didnt have the records they should have (ii) Good faith not enough. Have to act as reasonable therapist, and a reasonable therapist would have gotten a complete medical file and seen the history (3) General malpractice standard. If look at record & decide there is a risk, have to discretely give a warning to balance privacy of patient w/ warning of danger. (4) Lawyers and Their Cleints who make threats: Under ABA rules, lawyer forbidden to disclose infor such as this (many states dont follow ABA verbatim, make up their own rules) iv. Why suing therapist? If suing son, this would be a tort of trespass to land (not chattel; chattel can be picked up and walked away with). They are trying to get money. Son probably doesnt have money. Also 1) no recovery on home owners insurance for intentional tort and 2) exclude acts committed by household members. e. Tarasoff v. Regents of U of CA. s daughter in Brazil & guy told therapist he would kill her upon return. Therapist called cops, and they couldnt do anything. This wasnt enough. iii. Rule: Doc who knows patient will cause harm has a duty to make reasonable predictions about dangerous tendency of his parents and to warn potential victims when appropriate. Rest 3rd 42 (1) Burden on therapist outside of ability. Studies show therapists dont know real threats /not real iv. Statute to Mitigate: Ruling influential & has altered practice of therapy. CA implemented statute to mitigate. The therapist still be in trouble b/c requires he tell victim & law enforcement agency. v. If CA statute in place, would Peck still be liable? Depends on if consider arson a crime of physical violence. Also a question if it is a serious threat, because the son promised that he would not do it. HYPO: If in VT, controlled by Peck, and Goldfarb knows that I am going to break my lease, does this apply? (1) Only therapists covered by this rule. Yes. Same goes for CA. (2) Rule for attorneys, if say going to kill someone? Lawyer-client rule is confidentiality. Higher duty to client. P.492 (a) Exceptions: (i) Prevent client from doing criminal act resulting in imminent death / substantial bodily harm. (ii) Some states differ. NJ says must also disclose harm to financial interest in property of another. 3. Liability Based on s involvement in Accident a. La Raia v. Superior Court (pg 488) Using the Wrong Pesticide, LL lied about using wrong chemical iii. Pesticides caused harm (1) If created or exacerbated hazard, have a duty to intervene and make things better. (a) Duty to aid another harmed by actors act Rest 2rd 322 (b) had the info @ hand intentionally providing false info cause new or further s injury (2) Ct does not adopt intentional tort of spoliation of evidence. Not necessary b/c this is an exception under no duty to act. It is covered by regular negligence, so LL will be liable. (3) There are 2 separate harms, Janitor (using wrong poison), Manager (lied about it) b. Rocha v. Faltys; 21-year-old college junior and a fraternity mem drank beer at a fraternity party, then went to a local swimming spot, where members climbed to the top of cliffs overlooking the river. Some dove into the river from the cliffs He could not swim, and drowned. His parents sued for wrongful death arising out of alleged negligence. iii. Ct: Raia is good rule but N/A to this case b/c did not create hazard b/c decedents choice to jump. s did not cause/increase danger/harm to decedent, NO legal duty for negligently creating a dangerous situation. (friendship usually doesnt give rise to special duty) Voluntarily Undertaken Efforts a. Coffee v. McDonnell Douglas (pg 492)Failure to disclose after pre-employment physical about s anemia iii. Ct: voluntarily assumed duty so breached duty when failed to look @ blood results

4.

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(1) There was a relationship btwn the parties such that was entitled to legal protection against the s wrongful conduct (2) If employer voluntarily undertakes task of giving physical exams to employees, have to do so w/ due care and disclose if something is wrong. iv. This is difference between nonfeasance and malfeasance. (1) If dont do exam at all & gets cancer, did nothing (nonfeasance) (2) If gives exam & fails to exercise reas. care not testing blood, & gets cancer, committed malfeasance. v. Loss of Chance Doctrine: Maybe apply b/c got worse in 7 months after exam. needs to show substantial reduction in chance of recovery (doesnt need to be dead / death bed) vi. Limited exam does not require to test everything (e.g., if only need to test eye sight) vii. Scope of the Undertaking: some dont impose duties to do anything more than what did p. 500 viii. Assumed Duty to 3rd Parties: If undertake for free/consideration to render servces, subject to liability to the 3rd person for physical harm if failed to exercise reas care.Rest 2nd 324A ix. Contagious Disease: If doc gives wrong advice about communicable disease, & 3rd person gets, can sue doc. x. The Auto Club (pg 498, n. 2); tow truck fails to find pple, while waiting, driver get injured, auto clubs duty? If driver relied on club, auto club is liable unless if performed reasonably under circumstances (1) Truck company assumed duty by telling customer they would be coming to tow, must exercise reasonable care after it assured driver it would send out a truck b. Sall v. Ts, Inc. (pg 498) struct by lighting while out on golf course, course had weather policy intact iii. Ct: voluntarily assumed duty to protect by implementing a storm safety procedure (1) Summary judgment was improper b/c there were material factual issues of whether course implemented reasonble methods of care iv. Voluntary Undertaking (valid assumption of duty) (1) Offer to help other person / pattern of conduct (means of assuming a duty) (2) Reliance (3) Action on part of (required in some states, not in others) v. Pattern of conduct can substitute verbal offer. (e.g., Cross RR track to get to work for yrs, & train blows whistle when coming. 1 day it doesnt & car doesnt think train coming) See HYPO5 HYPO1: What if mom never said anything to de-ice? s no reliance,no duty on HYPO2: What if never left room, and knew that may be no duty may even be contributory negligent HYPO3: Insurance salesman, A buys fire insur, house burns, A never had fire insur, A sues insur co, prevail? yes HYPO4: Insur co promises insurance, but no action,insur co not liable HYPO5: Driver crossing RR tracks,gets hit by train,train whistle always blow before crossing,no whistle,RR liable?,Yes! RR voluntarily assumed duty,Pattern of conduct-Crossing Guard, Florence p.524 ft 3 (if pattern is sporadic,no voluntary assumption of duty) HYPO6: Ring Buoy (p.505) Betty liable? Yes b/c Betty attempted rescue. What is the applicable test? Reas Pers Std! 5. Negligent Entrustment (providing someone with chattel when actor knows it will likely cause harm) a. McKenna v. Straughan(pg 505)Parents knowingly buy alcoholic daughter a car and crashes into car iii. Doctrine of Negligent Entrustment: Exception under No Duty to Act (1) Ct: Parents breached duty. Does not matter if gave car or gave $$ to buy a car. (a) Ct stretches the def. of negligent entrustment b/c parents gave her the ability to cause destruction. (2) Normal Use of Rule: If loan someone chattel & they use it to harm someone, you can be liable. You have to know or have reason to know that they will use for harm. (a) Theres a duty, & is liable if give someone chattel & knows they will use it in a negligent manner (3) Here, provided daughter finance for getting a car. They did not actually hand her the chattel (car). Still use this doctrine (a) Nonsensical to use negligent entrustment to lend car, but not to give money for buying own car. (b) If she concealed alcoholism, parents not as liable. Lender has to know or have reason to know (c) What about Commercial lender? Typically not liable, unless special circumstances. If actually knew person was a risk or were informed, they may be liable. But that is not the norm.

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(d) Doesnt matter that she is a minor. If element of knowledge was or should have been there AND then took steps to make it possible for them to do the act. HYPO: What if was a commercial bank? Liable? NO b/c did not know she was an alcoholic Hamilton v. Beretta (p.507); s sued 49 handgun manufacturers alleging negligent marketing, design defect, hazardous activity and fraud. Since NYC Ct of Appeals has not adjudicated issue, 2nd Ct still reverts to NY ct b/c they do not want make state law. iii. Ct: N/A b/c s did not have knowledge of the distributors they sold to. (1) If sold to certain distributors and knew those distributors were selling to particular pple and for specific usage (i.e. black market),then negligent entrustment (2) needs to prove not just general stuff BUT DIRECT PROCESS,particular distributor sold particular gun to particular person which killed particular person (factual causation) 6. Statutes Relating to Rescue a. Minn Stat. Ann. (pg 511) -iii. (N) Feminist Perspective on NO Duty to Rescue (L. Bender): (1) Duty to help other from dying seems more urgent than any possible infringement of individual autonomy by imposition of affirmative duty. Helping him and also others that care about him. (2) Maybe should impose duty of acting with same self conscious care we would give neighbor b. BENDER (NOTES) p 513-14 iii. Instead impose a duty of acting responsibly w/ the same self-conscious care for safety of others that we would give our neighbors or pple we know (consider human consequences of failure to rescue) iv. Whether one met that duty would not be determined by how a reasonable person would have acted under the circumstances but by whether one acted out of a conscious care and concern for safety, health, and well-beinglike neighbor or friend HYPO: A on way to class,sees Dean collapsed on flr,does nothing b/c not late for class,walks around him,Dean dies As Liability 1. Liability under Common Law (no duty to act),No duty, Does not fall under exceptions (may be liable for loss of chance) 2. Liability under Minn statute,Yes/No,interpretation issue,includes can be interpreted as includes only or includes limited 3. Liable under VT statute,Yes 4. Liable under BENDER,Yes, special relationship, community responsibility 5. Criminal Statute,petty misdeamor,negligence per se (2 reqs),1) member of class protected 2) anticipate harm Criminal statute can provide std. of care for civil tort case (import std into tort case) b. C Abrogation of General Rule 2. Soldano v. ODaniels (pg 510) Would-be helper ran into bar & asked bartender to call police or let him call police b/c someones life was threatened. Bartender said no. Threatened person is killed. a. Ct: Bartended Liable. Didnt act. No special relationships. There is no statute. He didnt start to act, & then stop,NEW DUTY b/c NEW RULE (like Bender) iii. Ct looks at Factors,Bartender has a Duty. (1) Foreseeability of harm to (2) Degree of certainty suffer injury (3) Closeness of connection btwn conduct & injury suffered (4) Moral blame attached to s conduct (5) Policy of preventing future harm (6) Burden to & consequences to community of imposing duty to exercise care iv. NARROW HOLDING: If theres a telephone in a public establishment & someone is facing imminent harm, public establishment needs to let person use phone to call for help. (1) Bartenders burden was minimal and exposed him to no risk (2) From this case, duty does not require that one must go to the aid of another. BUT impose liability for negligent interference w/ a 3rd person seeking aid. Rest 2nd 327 p.518 (a) Preventing Aid,individual who knows 3rd person attempting to give aid and negligently prevents 3rd person from doing so,subject liability for harm by the absence of aid (i) Also, intentional prevention of assistance may also give rise to liability. Rest 2nd 326 p.518 (3) If private setting, no duty (its your home) p.518 Public Duty Rule (police and firefighters duty) 2. Riss v. City of NY(pg 515) Rejected suitor threatens repeatedly. Eventually throws lye on her face. repeatedly ask police for help. tries to sue police for lack of protection. Cant.

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Ct: no public duty b/c not recognizable duty to an individual, no specific person, for society as a whole iii. Public Duty Rule. Duty to public in general, but not to individual person, in absence of special relationship (many states) iv. Exceptions: (1) Special relationship b/w police & . (File for restraining order.) Nowadays (2) If witnessing crime (cant watch something happen to you and walk away) (a) Firsthand Observation: public officer merely knows of a risk of a harm to an individual may be distinguished from officer actually witnessing infliction of harm (3) Some juris have abandoned the public duty rule (4) MAJ: focuses on separation of powers (hands-off) b. Sovereign Immunity: applies only to federal govt & states. Alive & Well. c. Municipal Immunity: Most municipalities have enjoyed some immunity, but most states abolished. 3. DISSENT,There is a duty (reas std). Innocent victim shouldnt have to bear cost. Should deter cops from acting this way Case may come out differently today due to stalking rules. 4. Voluntary Govtl Assumption of Duty: Florence,no substitute crossing guard a. Municipality assumes duty to a particular person or class of persons, it must perform duty in nonnegligent manner b. Failure to provide crossing guard gave rise to duty b/c they had provided one in the past, assumed the duty to protect children crossing street IX. Statutory Duties: May be imposed when police violate statutory duty to take action a. III. LIMITED DUTY: PREMISES LIABILITY Cases reducing duty b/c is owner/possessor of land are based on old and long standing law, dividing into 3 categories: 1) Trespassers: persons w/o privilege or consent of the possessor (least protection) 2) Licensee: persons present w/ consent, but for their purposes family members of homeowners and social guests (somewhat greater care) 3) Invitee: persons present on land @ possessors invitation and for the possessors benefit, property open to public such as business properties (owed reasonable care) **Some states have rejected traditional approach** **Many states retain traditional approach** **Some states enacted statutory protection for landowners** Special Limited Duty rules for occupiers of land are Limiting Occupiers duty to keep land safe. They are not license to engage in negligent conduct!!! Traditional Categories: Trespassers, Licensees, Invitees 2. Trespassers a. Bonney v. Canadian Natl RR Involved 15-Thibodeau year old, who rides bike home across bridge, falls & dies. Case is brought by wife of police officer-Bonney who tried to save him. iii. Ct: RR did not violate duty b/c RR was not wanton, willful or reckless. If no duty to kid, no liability to police officer. The kid was a trespasser so no legal right (present w/o consent or privilege) (1) Liability to the rescuer relates to the liability of injured person,if not tortious,no duty iv. Trespasser: Someone present on someone elses land (or building) without consent or privilege (1) General Rule: duty owed to trespasser is to refrain from wanton, willful, or reckless acts. (Under ME Law) (2) Departure from normal common law rules of reasonable care, b/c owner is possessor of land. (3) No duty to boy crossing bridge, so none to the Police. v. If you put yourself at risk by riding bike across shaky bridge, then you are liable to those who help you. (1) UNDER ME LAW,trespasser is deemed to enter @ own risk, must take the premises as they are, trespasser assumes all risk of injury from their conditions (2) KID knew bridge was dangerous (previous deaths), no special circumstances HYPO1: If not a cop & just a passer by, widow could sue. If person acted reasonably they would benefit from doctrine that if create emergency (the kid riding bike), you are liable to person who tries to rescue you. HYPO2: If RR knew the constant stream of pple (switch to trespasser into licensee), Still does not change the case outcome HYPO3: Trespasser shot?, RR not liable b/c not wanton, willful or reckless A

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HYPO4: Broken gate, failure to make safe, RR not liable b/c not required for trespassing b. Humphrey v. Twin State G&E injured while hunting on property by negligently fixed elec. Wire. Reverse and remanded,more questions of fact, RIL could possibly to this case iii. Ct: One should not be allowed to defend and indefensible act by showing that party injured was engaged in doing something (as to 3rd party) was unlawful iv. Which can invoke special protections of 3 party categorization? Who gets to benefit from the reduced duty? According to this case: (1) Only the land possessor (if tenant, the tenant is the possessor, the LL is the owner) (2) Member of the possessors family (3) Someone acting on the possessors behalf can benefit. (a) E.G., If elec. Company was stringing line across yard b/c want new barn v. Utility company had no right to the land, so trespass claim is irrelevant to power company. vi. Exceptions to General Rule: (1) Discovered Trespassers (licensee) - SOME states, Once landowner discovers someone on land, duty arises to take reas care for persons safety, including duty to warn of concealed artificial conditions (some states this duty does not exist) (2) Constant Trespass on Limited Area (licensee): If know or should know that trespassers constantly intrude upon limited area,then must conduct dangerous activities w/ reasonable care for safety of those trespassers & must take reasonable steps to warn them of dangerous, artificial conditions (if trespassers are unlikely to discover the conditions) Rest 2nd 334-35 (3) Attractive Nuisance Doctrine (invitee): duty to children, converts child tres/lic to invitee, particularly where the dang condition is one children are likely to find attractive (reasonable care duty owed) (See Banker)

Banker v. McLaughlin (pg 532) 5 year old drowned in pit filled with water on property, child became invitee iii. Ct: Landowner liable under Attractive Nuisance Doctrine (N/A to adults) iv. What circumstances need to be in place so (possessor) has duty of reas care towards Children? Rest 2nd 339 (1) Possessor knew it would be attractive to children (frequency) (2) Possessor knew condition would involve unreasonable risk of death/serious bodily harm (must be risky) (3) Children do not appreciate the risks b/c of youth (a) If 14yrs vs. 5yrs,may come out differently b/c of factor 3 (14yrs may be contributory negli) (4) Utility of eliminating danger v. prob of injury resulting (a) This Case: No utility to owner, burden to fill the pit was (b) BUT if owner needed the pit,may change the balancing test p.539 v. Natural Conditions Rest 2nd 339 (1) Cts say N/A to natural hazards (e.g., pool created by something natural) HYPO: What if put up signs? Reas Std Test for 5yrs c. Licensees & Invitees, Rest 2nd 332 Andruschenko v. Silchuk (difference b/t licensees and invitees) a. Boy injured by scalding water in s bathtub b. Child deemed to be a licensee b/c he was considered a social guest at s house c. Duty to licensee is take the premises as the residents themselves have, no special inspections or precautions d. s did not violate duty to boy (exercise care in active operations, warning licensee of concealed dangerous conditions of which possessor knows or should know) e. s did not know of the thermostat problem Trespasser Licensee Invitee 3. 4. Defn Present on land of another w/o consent or privilege Present w/ consent or privilege for own benefit / purposes (not for possessor) Expressed or tacit consent General or local custom Present for benefit of possessor (majority is view that this does not have to be material/pecuniary benefit)

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Example

Social Guest Household member (nonpaying more traditional family members; does not include boarders or live in maid) Customary in Community Unsolicited Sales People (loiters) Rest 2nd 330 Special rule: Police/Fire Fighters Constant Trespass Duty of Refrain from wanton, willful Refrain from actively endangering care by or reckless Conduct Warn of known concealed hazards possessor NO duty to inspect Notes If in library & stay accidentally past midnight, become trespasser

Public Invitee: land held open to the public Business Invitee: on land to do business with Plaintiff Many visitors, may be placed in either class

Reasonable care (higher than licensee) Maybe a duty to go out and inspect for a hazard/damages Greater duty for I (customer) than L (friend), b/c friends more familiar w/house. Customer has no idea what to expect

***Owner of land must indicate in some way that the public is encouraged to use the land, cant be determined to be open to the public just b/c members of the public use land for their own purposes*** STATUS CAN SHIFT 1. Invitee whose activities exceed the scope of invitation may become a tresspasser or licensee 2. Why higher duty to invitee (public/business) vs. licensee (family/friends)? Customer no clue what to expect? a. SOME cts abolish distinction btwn invitee & licensee b. CA abolish all 3 c. SOME abolish trespassor, but keep licensee and invitee A. Inkel v. Livingston (exceeding scope of invitation) a. was having construction done on his property, invited over for dinner, injured on construction site b. was not given permission or consent to walk around construction site, exceeded scope of his invitation by entering construction zone c. s status shifted from licensee (when invited to dinner) to trespasser (when entering construction zone) Ct. sees there as being NO IMPLIED INVITATION Carter v. Kinney (pg 542) going to s house for church activity; slips & falls on icy driveway. iii. Ct: gave permission to limited persons to enter property. They think this is a licensee. (1) ,non-tangible benefit,but not enough to make an invitee (2) Limited notions of what benefit means,more material. Ct ignores the non-tangible stuff iv. says they are invitee & says is licensee. didnt open house to public, so not a public invitee (If put up a sign on house and say everyone come to my house then those people are public invitees) v. Looks like a social guest. Not someone going to church on a Sunday morning, which would be an invitee. vi. If didnt know driveway was icy and (1) is a licensee, didnt breach duty. Didnt know driveway was icy. (2) is an invitee, than could say violated duty of reas care. Would have to investigate, & make sure driveway is clear in winter in MO. HYPO1: A invites B to get rid of fence (B brings tools),B helps remove fence,B leaves,B falls through rotten step,A didnt know about rotten step,B was invitee despite being a friend,not a social visit, so A B/duty for reasonable care (inspection), BUT if A knew of staircase,duty to inform under licensee HYPO2: During social visit, A asks B to fix fence,Did change the characteristic of visit,Cts are split,need to argue both HYPO3: A does not know gate is broken,A sees B trespassing,B becomes licensee,A no reasonable care to inspect f. g. Campbell v. Weathers (pg 545) Guy falls through trap door at store where made past purchases, but hasnt made purchases that day. Going to use the bathroom in the back of the store. Guy a regular at the store iii. Ct: was invitee,visit fits both defs (business-even if not buying anything) & (public-open to public) (1) Invitee for following reasons

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(a) Business invitee: ongoing business relationship w/ the store. (b) Public Invitee: Toilet open to public (not closed off, and used by other customers on regular basis) (i) Having toilet is a marketing ploy, and is part of their way of doing business iv. Invitee/Licensee can become trespasser if exceed scope of invitation (if sign saying no customers, & U go) HYPO1: If hallway sign says no entry and enters, A becomes trespasser b/c invitee exceeded scope of invitation HYPO2: If A walks into business and engages in other business,A not a business invitee HYPO3: If A walks into store to sell something related to business,A is a business invitee HYPO4: If A allows kids to play ball on land, kids are licensees. If A installs court & says open to all kids , Invitees HYPO5: Driving on NJ tpke,rest area,slip & fall at McDs (did not buy anything),Business invitee b/c possibly buy something, Public Invitee unless customer only sign,then trespasser HYPO6: Bonney,if RR knows pple trespassed to use bridge,trespassers becomes licenseesbut RR has no duty b/c hazard was not concealed,so no B/duty. B Rejection and Reinstatement of Traditional Approach 2. Abrogation a. Rowland v. Christian (pg 547) knew faucet handle broken, had complained to LL. Didnt warn guest & he was then injured. iii. Ct: No duty to licensee, uses Soldano balancing test to determine if there should be duty (1) Yes Duty, occupier of land is aware of concealed condition & aware that another is about to come into contact, failure to warn/repair,negligence (2) MAJ: duty to everyone, reasonable person test implemented (balancing considerations) (3) Dissent: homeowners should not be responsible to everyone (duties placed on stores extended to homeowners) iv. Social visitor = Licensee. (1) MOST states,s duty b/c concealed hazard was know (2) BUT CA never adopted rule of requirement to reasonably warn of known danger, so lost. CA dumps the classification system all together. (3) Concern that since distinction abolished, someone (even criminal) can sue if they trip & fall on your land 3. Recreational Use Statutes: After Rowland a. CA Civil Code CA adopted statute, if someone on land for recreational purposes, cant sue for harm occurring. Want land to be open & so relieve landowners of what would otherwise be significant liability. Also passed legislature so those on land to commit felony cant sue land owners if they get hurt. iii. Problem: Thieves and Birdwatchers (CA 846 + Rowland): 2 pple injured while trespassing on s land (1) Thieves,N/A under CA specific statute,apply Rowland,Better case (2) Birdwatchers,Applies under CA specific statute,no duty by landowner

C Lessors and Lessees p.548 Possessor of Land Rest 2nd 328E a. Person who is in occupation of land w/ intent to control. or b. Person who has been in occupation of land w/ intent to control, if no other person has occupied w/ intent to control, or c. Person entitled to immediate occupation, and if no other person in possession under (a) or (b) 3. Matthews v. Amberwood Assoc. (pg 549) Pit Bull kills visitors son in apt. Many complaints to LL about pit bull. a. Issue of LL ability inside apt (saw it w/ common areas). If LL has no control / knowledge, then no responsibility or liability towards guest who comes into apt. Normally LL not liable,MOST CIRCS,after rent is paid,LL has not idea/control so not liable for hazards p558 b. General Rule: LL not liable for hazards w/in a tenants premises iii. Ct: BUT in this case, LL does have control b/c 1) No pet clause and 2) everyone afraid of dog, people complained) (1) Usual voluntary assumption N/A in this case iv. Possible Exceptions

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v.

(1) Voluntarily undertakes to rectify situation (a) Negligent or Promised Repairs (2) Defective / dangerous condition violating statutes (3) Common Areas,under lessors control , and knowledge Abrogation - Few juris abolished general rule of non-liability of LL and use Rea-Care Std.

D Demands of Reasonable Care for Possessors p. 554 * After stating a duty of ordinary care,one must still determine what ordinary care requires,what the possessor must do 2. 3. Ill and Injured Invitees: Invitees owed first aid/help if possessor has reason to know they are ill/injured. Duty of reas care not to further expose to harm Known or Obvious Dangers: No duty to warn an invitee to take other precautions w/ respect to a known or obvious danger, UNLESS reason to anticipate harm despite knowledge/obviousness of danger a. If person on land will be distracted or will forget about hazard b. If person unable to see hazard c. If person cant see hazard iii. May even have to do something about the hazard iv. Warning signs often inadequate (e.g., person slips on stores wet floor. Didnt see sign b/c looking at items) Protection from Crime: Duty for possessor of land to protect/ warn customers of foreseeable crim. attacks p.563 Duties to Persons Outside Premises: Persons Invited onto Land of Another: Person may be held liable to others on property other than own, if you invite that person there.

4. 5.

IV. LIMITED DUTY: NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS (NIED) p.569 If other C/A, NIED can be piggybacked to those claims,parasitic damages p.581 More strict tort b/c more difficult to prove Tort of Outrage/IORISED (Ch 2) ***distinct b/c NIED is negligent, IORIOSED is intentional*** 1. Intentional or Reckless on part of 2. Extreme + Outrageous Behavior 3. Causation 4. Severe Emotional Distress Cts concerned w/: a. Genuineness of claims b. Limiting scope of liability to manageable bounds NIED, Ct Approaches in dealing w/ the concerns 1. Impact Rule: Sue for NIED only if experience physical impact, BUT arbitrary b/c not always a physical impact w/ NIED MOST states no longer require impact as essential p581 2. Physical Consequences: Sue for NIED if show physical consequences of activity, BUT not always manifest in physical ways 3. Person of Ordinary Sensibility: objective std Lewis (new approach, moving away from impact rule & phys conseq) A Serious and Genuine Harm 2. Lewis v. Westinghouse Electric (pg 577); Women stuck on elevator for 40 minutes due to stall. Suffered aggravation of pre-existing cardiac and circulatory problems. No recovery a. Ct: Does not let recover. Tries to come up w/ new approach, person of ordinary sensibility, Ct finds person would not act like ,Recognizes no exception! iii. OBJECTIVE STD,no attention to s vulnerability (no eggshell skull rule, even if knew of s weakness) b. Traditional Ways of Limiting Scope of Liability: iii. Impact Rule (e.g., elevator stopped and hits head on ceiling) (1) Tort was NIED & manifestation is physical symptoms. In past, states relied on Impact Rule to determine if NIED claims should proceed. may have won if used this rule. Thought

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c.

d. e.

liberalizing law by not requiring physical impact but instead loses, where under Impact Rule, she may have won. iv. Physical Consequence Rule (e.g., elevator stops, and she gets nervous causing high blood pressure) (1) Focuses on another form of distress being present (nausea, irritation, sleep loss) (2) Manifestations resulting from mental distress substitute for phys. impact Modern Approach: Objective Standard (Lewis objective standard) iii. Severe emotional distress to person of ordinary sensibilities. (1) Had pre-existing condition. Court didnt take into acct s sensibilities (like Eggshell). (ordinary sens.) (2) Have seen objective/subjective standard conflict before. Slocum (IORIOSED case). (a) Normally use objective standard. EXCEPTION: if vulnerable AND knew it , subjective std iv. If s lawyer, it always helps to point to physical manifestation to substantiate claim. Fear of AIDS (other diseases): Many cts say can only recover if exposed (difficulty defining). Can recover for window of anxiety p.579 Distress From Property Damage: Most cts hold that negligent harm to property is insufficient for mental

B Some Special Cases p.575 Some cts recognize certain interests/legal rights,violation would lead to NIED w/o physical/impact damage 2. Johnson v. NY(pg 584) Daughter was negligently told mother died & to prepare for funeral, At viewing realized it wasnt her mother a. 2 Exceptions of prevailing with no physical consequences (if either happened, distress would be genuine) iii. Negligent erroneous transmission of message from carrier saying someone dies iv. Mishandling of corpse b. Although neither exception applies, court says within orbit of danger. Stretches 2 exceptions by adding a 3rd Incorrect Identification. Case is close enough, but they dont open floodgates c. Didnt need to get info first hand b/c it was very foreseeable sister would automatically call daughter. d. Other Notes (586) iii. False imprisonment: Kind of tort where 1 would may expect to suffer emotional distress. Even if only injury is emotional (not physical). iv. Harm to property is not enough to recover for NIED, especially where is not present when it occurs. v. Some states dont recognize tort. There is little coherence with how states handle this tort. Some states dispensed with specific tests/factors & treat NIED like every other tort. vi. Rowe v. Bennett: sought treatment for marital relationship, and therapist then had affair w/ partner. Nature of this relationship allowed to recover p587 C Distress Caused by Harm to Another (BY-STANDER) p.588 What happens if bad thing doesnt happen to , but to someone about whom cares a great deal and suffers? 2 views (Foreseeabilty and Zone of Danger approach) 2. James v. Lieb (pg 588) Sister killed by garbage truck a. Foreseeability approach. Rather than ask if in danger, ask if it was foreseeable to driver that person would be traumatized. iii. Old Test was the Zone of Danger Test,only collect from A only if B himself was also in fear of safety (need to be close enough for physical injury & risk of safety) HYPO: RN drops baby,Mom is N/A b/c outside of Zone of Danger iv. Foreseeability Rule (to whom is the emotional distress foreseeable?) States differ factor reqs (strict/loose) (1) Close relative (a) Marital or intimate familial (b) Can recover if surviving gay partner? If go to VT to get civil union (= marriage in VT), & go back to Neb? Depends on if the court recognizes as intimate familial relationship. Possible to prevail. (c) NY trial ct. allowed surviving gay partner to bring wrongful death suit (medical malpractice) (2) Proximity to incident (3) Sensory or Contemporaneous Observation (did actually see it happen)

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(4) Emotional Shock suffered (5) Death or serious bodily injury (a) Factor added by Neb court; only one of the 4 not in Dillon v. Legg (CA) b. Under CA (Dillon) law, must witness accident to recover. James v. Lieb may be more lenient (if go to hospital right after and see the broken body, may still be able to recover) iii. Dillon abolished zone of danger, allowing bystander to recover for emotional distress, based on few yards. c. Presence and Observation Requirements,very inconsistent d. Relationship Requirement Dunphy: not necessarily limited to relationships of blood or marriage, but N/A to gay relationships, BUT A LOT HAS CHANGED!!! (1) Dogs are N/A b/c considered property 3. Eskin v. Bartee (pg 580) (Child hit by car at school, s didnt witness firsthand but arrived very soon after and witnessed scene basically undisturbed) a. Court expanded view on bystander NIED recovery b. Emotional shock experienced by mother and sister was equally as foreseeable b/c scene of accident had not changed. c. NIED can be brought even where there is no relationship, if accident is actually witnessed D Relationships to Other Actions 2. Loss of Consortium a. Lozoya v. Sanchez (p.586) The husband and son were injured in the first accident, in which the driver rearended them. Ten months after this accident, they were rear-ended by the trucker and allegedly sustained more injuries. The husband and his wife lived together for over 30 years and were formally married during the time between these accidents. iii. Ct: Loss of Consortium is ok, there was close familial relationship w/ the victim, factors test p.588 (1) NMs broad application of loss of consortium (a) MOST states,husband-wife, SOME states,parent-child C/A for Loss of Consortium C/A for NIEDC/A Survival Action C/A Wrongful Death (p.599) (i.e. NY Law) 1. Duration of Relationship 1. Close relative 1. What person would 1. Able to prove 2. Degree of Mutual Dependence 2. Proximity to incident have had if lived inheritance if person died 3. Common Contributions to Life 3. Sensory or Contemporaneous 2. Can sue for pain and Together Observation suffering they died 4. Extent & Quality of Shared 4. Death or serious bodily injury Experience 5. Emotional Reliance, etc. Damages: loss of services + loss of Damages: the shock/stress of Damages: Financial losses companionship observing the accident pecuniary. (future earnings). None for society or loss of companionshipother states allow it (2) Court was not adopting Common Law Marriage practice (entered w/o license or ceremony) (a) State recognition, same as legal marriage (only 10 state allow common law, some states recognize if couples move to their state) (b) 3-Part Test for CLM (i) Cohabitation (ii) Publicly hold out as married (iii) Concurrently consider themselves as married 3. Breach of Fiduciary Duty -Fiduciary relationship is where one party places trust and confidence in another who is in a dominant or superior position (fiduciarys obligations to dependant party include a duty of loyalty and a duty to exercise reasonable skill and care, fiduciary will be liable for harm resulting from a breach of the duties imposed by the existence of such a relationship) a. F.G., v. MacDonnell (pg 590) This is a lawsuit for alleged improper relationship with member of clergy who was counseling her at the time. In this case they didnt want to set a practice of clergy malpractice. 4

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claims,1) B/fiduciary relationship, 2) Clergy malpractice(dismiss), and 3) NIED (more like an afterthought), 4) 2nd clergyman for publicizing the affair (dismiss) p.601 b. General malpractice standard: Reas Pers , Reasonable clergyman. N/G b/c of 1st amendment. c. Breach of Fiduciary Duty: (deals with trust, diff from negligence). iii. Fiduciary: What is the duty of the person in the dominant position? (1) Obligation to places party ahead of your own interests (cannot exploit trust-good faith) (2) Ct: Individual was a counselor vs. priest d. Dissent: Not a tort to have sexual relationship btwn adults,only liable b/c hes clergy. BUT DISSENT OVERLOOKS the FIDUCIARY RELATIONSHIP,abuse of power when took responsibility e. ABA has new model rule prohibiting sexual relationship with client (not adopted by any states yet, however it is pending). Concerns of lawyers professional judgment being distorted, and the clients inability to really consent because of the balance of power in the relationship. P.606-07 ft 6-7 f. **Not necessarily a universal rule. Some states have created legislation, with criminal or civil liability. And this varies a lot from state to state. HYPO: Not pastor but a lay person,yes, there is still fiduciary relationship,WHOLE PT OF HOLDING IS NOT B/C HE WAS A PRIEST BUT HE HAD AN OBLIGATION & RESPONSBILITY AS A COUNSELOR E Abrogation of Independent Actions Based on Negligence 2. Boyles v. Kerr (pg 607) Young woman had sex with young man both college students. He agreed to video tape them, & showed tape to 2 or 3 groups of friends. Pretty soon, everyone on both campuses were talking about it. a. Sued for NIED, for trauma experienced. TX supreme court decided that they wouldnt recognize a freestanding tort where no independent legal right was invaded and the only claim was that emotional distress was avoided. If wants to sue for IORIOSED, then she can. iii. Can she prevail, and would she want to bother? iv. If did prevail, would have hard time getting recovery because insurance wont cover. If she sued for battery, could recover for emotional damage? For battery, she could say that having sex was based on mistake (videotape). F Goldfarb Summary 2. Analyze differently depending on if the harm happens to self v. bystander. ** On Exam, if not told which juris in, can look at each of these, saying that we arent sure how the trier of fact would decide. a. NIED (Happens to Oneself) iii. Impact Rule (If in juris that applies this rule, need to show physical impact/injury as result of injury) iv. Physical Consequences Rule (Did experience physical symptom arising from condition) v. Would Cause Severe Emotional Distress to person of ordinary sensibilities (Lewis) vi. Invasion of legally protected rights (1) Telegram / death (Johnson v NY), Mishandle corpse (Johnson v NY), Assault/battery, F. Imprisonment vii. Other states are very liberal and dont have any rules at all, and treat NIED claims just like any other negligence case b. Bystander (Witnessing Harm to Another) iii. Zone of Danger (1) In practice, it is almost unheard of that courts apply Zone of Danger to apply this outside of the familial relationship. iv. Foreseeability (Requirements are not necessarily rigid requirements; states do not treat these all the same) (1) Marital or intimate familial (James v. Lieb) (2) Proximity (James v. Lieb) (3) Contemporaneous observation (James v. Lieb) (4) Death or serious bodily injury (James v. Lieb) c. Relationship to Other Actions (1) Loss of Consortium (Lozoya) (2) Breach of Fiduciary Duty (FG) d. Abrogation of Independent Actions based on Negligence

V. LIMITED DUTY: ALCOHOL RELATED INQUIRES Pg. 603 (Dram Shop Acts and Social Host Liability) Common Law Rule: Traditionally, sellers & donors of alcohol were not liable to 3rd persons for injuries caused by drunken behavior. Many cts said proximate cause was the drinking and not the dispensing of alcohol. More than one proximate causation. Much of the law is statutory,varies from state to state.

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VOLUNTARY INTOXICATION IS NOT A REASONABLE EXCUSE Moving away from no liability,liab of commercial sellers (DSA) under certain circumstances (minors, alcoholics, etc). If s lawyer, what characteristics would want to see? Injury to person Seller of alcohol would be better than social guest. o Dram Shop Act (old word for liquor store); makes commercial seller responsible o Social host not liable under DSA gave alcohol to minor High blood alcohol problem Alcohol knowledge knew individual was going to drive home Small gathering, where provider knew who/what they were dealing with Would rather have being innocent, rather than being drunk and then plowing into tree Many juris dont allow to sue provider of alcohol, b/c is the one who was intoxicated and hurt himself A Liability Under Dram Shop Acts NY General Obligations Law,MOST STATES have ADOPTED DSA 2. Variations on Statutory Dram-Shop Liability a. What is prohibited: limited to cases of fairly serious conduct b. Who is liable? Not expressly limited to commercial sellers, but NOT applied to those who simply give alcohol away (even to minor) or even in business setting, wholesalers not usually liable b/c they dont know whether ultimate purchaser will be intoxicated at time of the sale c. May the Recipient Sue? Does not give an illegal drinker who injures himself a C/A. In states that allow injured recipient of alcohol to sue,recovery based on comparative negligence 3. Non-Statutory Liability,Many states vendors may be subject to liability at common law in addition to, or instead of, liability under dram-shop statutes 4. Dram-Shop Liability & Proximate Causation: In a rare case, a vendor who negligently provides alcohol to a minor who then injures a 3rd person may be saved from liability to the 3rd party by lack of proximate causation. Similar causation issues can arise in cases involving social-host liability (social hosts not covered by dram shop acts)

(Following 2 Cases Expand Liability for Alcohol Rule) B Liability of Social Houses 2. Kelly v. Gwinnell (pg 619) drinks at s house. Says has 3 drinks, but blood alcohol = .286. a. MINORITY RULE: (Overturned in NJ by statute) b. Ct: Limited Holding: Impose liability on Social Host if: iii. Knew / should have known guest intoxicated and iv. That guest would be driving and v. Social host directly served this guest and vi. An accident occurs. c. Narrow holding. Not situation where this is a large social gathering, or where the host is drunk, or where the didnt know that this person was drunk or going to be driving. d. Claim like this, does not preclude also suing the driver. Small price to pay for lives saved e. Ruling enforced prospectively only, court wants to give homeowners chance to attain additional coverage from insurance for situations such as this (public policy view) HYPO: If accident happened 4 hours later & had drink at bar, could make bar liable too. (Joint & Severally Liablesocial host would be severally liable) iii. Issues of factual & proximate causation. iv. Could argue that bar serving additional drink was superseding (breaking chain), but may not be successful. Accident was so foreseeable as result of first 13 drinks & so last drink was probable not a superseding cause. f. Policy Considerations: 1) deterrent effect, 2) victim compensation, 3) social costs (costs shifts,host/vict/driv?) g. MOST STATES impose liability to adult social hosts + commercial sellers serving to minors (accident occurs) HYPO: Keg party?,Host liable?,Not under this decision HYPO: @ As house,Drunk B tells A hes gonna hit his wife,B goes home and hits wife

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Ct apply to domestic violence p620 (b/c habitual/drinking)?,treat same as drunk driving?,where to draw the line?,NJ statute,exclusive only to drunk driving p622 HYPO: Host is drunk,hands out,no excuse, host still liable (voluntary intoxication is never an excuse) C Other Theories of Liability

A. Entrustment: Some juris, liability theory may even extend to cases involving injuries to person to whom the car was entrusted and not just to 3rd persons. B. Assumed Duty: Another basis for liability is voluntary assumption of duty (cases are inconsistent) C. Duty to Invitees: Even if an establishment is not liable for violation of dram shop laws, it may have duty to protect its patrons if a fight breaks out. D. Public Duty: A municipality may be liable for the negligent failure of its officers to remove from the highway an drunk motorist who causes injuries to other travelers. E. Intentional Tort: A recipient of alcohol may also be liable to state a claim for battery (Davies) F. Respondeat Superior: Employer may be held liable for drunk driving by an employee w/n scope of employment G. Taking Charge of an Intoxicated Person: difficult to establish liab for alcohol related injuries based on taking charge of an intoxicated person

XIV. STRICT LIABILITY Dont Need to Prove: Fault or Foreseeability (fewer things to prove!, good for s) In strict liability, only need to prove that D did something, not necessarily that it was harmful Employer & Employee 1. Workers Comp-relatively new development (helps wkers & employers),compromise w/ automatic remedy (modest $ if successfully sue in negligence) a. Wkers: Unlike in negligence,wkers compensation is automatic, get some $ w/ very little effort b. Employers: Protects them from large/expensive lawsuits c. Not every type of injury is covered (stress related injuries have mixed results, Intentional Torts generally not covered) 2. NY Workers Comp law, fairly representative a. Basis for computing money: (Average weekly wages) multiplied by (some number depending on the disability) i. Workers Compensation (1) What kind of tort is it (a) ONLY accidents (b) Does not cover Intentional Torts (c) Bars action against co-employers (2) Did it happen during course of employment (if no, cant use Workers Comp) (3) Does Workers Comp cover it? (a) Blue collar vs. white collar duties, States have tried to figure out how to apply injuries not listed in the Wkers Compensation Scheme. ii. Bars law suits against Employer, not against mfg, etc.. iii. Originally a compromise btwn interest of employees & employers. How does it help both? (1) Employer: Workers Comp only remedy employees have, and the amounts are quite low. (2) Employee: Dont have to prove negligence or get into res ipsa, etc Very straight forward iv. What if injury is stress condition causing hypertension, or if become sterile by working w/ chemicals? (1) Look at the statute to see if it is covered. (2) It is only a bar to suing employer if it is covered in the statute HYPO: Employer Discrimination,N/A to Wkers Compensation System, so need to file lawsuit Strict Liability Policy Basis Achieves more effective deterrence than a negligence standard

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Increases the likelihood that injured persons will be compensated May be effictively employed as a device for spreading losses or shifting losses to deeper pockets Can be used to ensure that persons who benefit from dangerous activities bear the burden of resulting losses Easier to apply than the negligence standard

3. Respondeat Superior-Responsible for Acts of Employee (Form of Vicarious Liability) a. What needs to prove for RS Claim i. W/n scope of Employment ii. Has to be an employee (independent contractors are N/A) iii. Employee committed a tort (most often negligence) **Some intentional torts are not covered under RS** (Smith is an exception, P recovering for intentional tort) b. Smith v. Lannert (pg 661) , Store Mgr, spanked when she went to bathroom instead of returning to work i. Ct: under scope of employment when spanked ,in favor of against the store (1) RS would not apply if a joke, b/c not w/n scope of employment or to advance employers interests. He spanked to get her back to job so advancing employer interest. (a) This case: spanking was to promote the business (2) Could be battery claim. Batter and RS not mutually exclusive,can sue for both. (3) This is about making the employer vicariously liable for the actions of the employee. ii. Why did Ct allow to bring lawsuit outside of Wkers Comp? (1) violated work order to stay @ her station,when she left,out of employment scope, so thats why Lannert spanked her,BUT Lannert was w/n scope of employment (2) can also sue Lannert for battery & assault,she can sue Lannert and the ER b/c not mutually exclusive (multiple claims possible) (3) v. B-R for respondeat superior (vicarious liability), negligent hiring/supervision (ER actually committed this one-directed liability b/c B-R did not act as a reasonable supermarket in handling Lannert) (a) Damage: $20,000 total,from all 3 claims (i) Indemnification of an Employer,ER held liable solely on the basis for RS can indemnify for the full amt from EE HYPO1: Lannert is a co-worker and does the same thing,ER still liable under RS if promoting the business HYPO2: Lannert spanks as a practical joke,ER not liable, N/A to RS b/c not promoting business interest HYPO3: First time Lannert spanked,change outcome?,No b/c still serving business interests p.666 ft 6 Rest 2nd 228 HYPO4: Accident during wk hrs, but happened while running personal errands,FROLIC & DETOUR,So under Frolic, B-R not liable (maj deviation from job duties), BUT under Detour, B-R liable (minor deviation from job duties),depends on juris iii. Respondeat Superior (1) Form of Strict Vicarious Liability. Other vicarious liability: (Agency, Apparent Agency where hospital treats hospital as if Dr. is agent, aiding & abetting, negligent entrustment) (2) 2 Conditions For Respondeat Superior (a) Employee acting in scope of employment (i) Show that employee acting for employers benefit / furthering (scope of employment) Frolic: Major deviation from employment duties: RS does not apply Detour: Minor deviation from employment duties: RS applies DEPENDS ON JURIS,CASELAW ON PT FOR EACH ONE!!! (ii) Rest 2nd 228 (dont have to show all) If actions are of kind employed to perform Occurs w/n authorized time / space limits It is actuated, at least in part, to save the master Force is intentionally used by servant against another, the use of force is not unexpected (b) Has to be an Employee who committed the tort OR Independent contractor performing non delegable duty. These are duties an employer cannot delegate legal responsibility for. Rest 2nd 409 (3) Traditionally did not apply in intentional torts. Today some will apply if intentional tort committed wholly / partially to further the business interests.

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(4) Even if employer not at fault, can be vicariously liable for employee tort. Even if company has policy. (a) Employer has more ability to control employee than the victims does iv. Scope of employment (RS ) and course of employment (Wkers Comp) usually same, but could be different depending on policy goals. John R. Oakland Unified Sch. District at teachers house for after school instructional work experience program, where teachers/students work together - allowed to do in privacy of their own home. i. SCt: Teacher is liable for battery & assault ii. Is school liable under RS? Trial Court says yes. Although above factors (666) dont really work, the act made possible b/c employer conferred authority upon employee to do activity. (1) SC: Majority disagrees and says school NOT liable. (public policy reasons) Authority bwtn school & teacher was too attenuated. Dont want to discourage programs. Think having a gun makes a difference: (a) Wife v. County of Orange: sheriff pulled over female driver, threatened to rape . Found county liable b/c they gave him uniform/ gun, & that gave him authority to be able to commit tort. (2) Dissent: By virtue of exercise of his official authority + school set up the unsupervised program,teacher was able to perpetuate sexual assault,so school should be liable for RS (3) Could sue for negligence (training, supervision, etc..). RS is strict liability. Stand alone even if separate negligence claim. What if school argued teachers act was superseding cause in negligence case? If Criminal act foreseeable to then it is merely an intervening cause and not a superseding cause iii. Non-Delegable Duties: More a conclusion (liability will be imposed) than an aid to analysis. Rest states that principal will be held vicariously liable for the torts of an independent contractor involving the breach of a non-delegable duty, Rest 2nd 416 (a) Disclaimers where principal cannot shift proper responsibility to an ind. Contractor (b) Duty that is so important that you cant get off the hook for delegating them to independent contractors Ostensible or Apparent Agency a. Baptist Memorial Hospital System v. Sampson ; Respondent bite victim sued petitioner hospital system on a vicarious liability theory when physicians in petitioner's emergency room failed to properly treat respondent's spider bite. i. Hospital would be liable, docs not liable b/c they are ind. contractors. Hospital is the ostensible and apparent agency. was under the impression the docs were hospital employees. ii. CT: BUT FAILS IN CLAIM!!!-->waiver form,hospital gave no impression agent/employees (1) 3-Part Test to Establish Hospital Liab. for Ind. Contractors Malpractice under Ostensible Agency Rest 2nd 429 (a) Reasonable belief that doc was agent/employee of the hospital (b) Belief was generated by hospital affirmatively holding out the doc as its agent/employee or knowingly permit doc to hold herself out hospitals agent/employee (c) justifiably relied on the representation of authority (2) Other ways for to recover: 1) strict liability, 2) sue hospital for negligence (3) could also argue Non-Delegable Duty Exception ,if successfully argue that docs fall under non-delegable duty,still hold hospital liable despite ind. contractors iii. Apparent Authority, Rest 3rd 2.03 (1) Applies to any set of circumstances under which it is reasonable for 3 rd party to believe than an agent has authority, so long as the belief is traceable to manifestations of the principal (a) 3rd partys reasonable understanding,reflect general business custom (b) Agents success in misleading 3rd party as to the existence of actual authority does not in itself make the principal accountable c. Fellow Servant Rule a. F-S Rule holds that despite RS, an employer cannot be held liable for harm to an employee which results from the conduct of a fellow wker (injured employee deemed to have assumed the risk of co-wkers negligence by reason of having accepting employment) b. Not practical today b/c injuries are covered by workers comp

4.

5.

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Harm Inflicted By Animals p.684 1. General / common law rule. Some districts apply stricter rules, that hold animal owner liable for all harm caused by dog. Statutes can make strict liability more strict or less strict. Rest 3rd 22 2. A has animal that hurts person / property of B. Ask the Following: a. Does plaintiff POSSESS the animal? (Doesnt matter if owning or renting) b. Is it Wild/Domestic? (Wild = not domesticated, tendency to cause harm if not controlled) i. WILD animal, strictly liability if animal: (1) Is of a dangerous propensity of species OR (2) Dangerous propensity of particular animal which knew/should known (3) Everything else = negligence ii. DOMESTIC animal, strictly liable where the injury is a product of (1) Abnormal dangerous propensity that knew / should have known (2) Everything else = negligence c. Did it cause an injury, which was the product of the dangerous tendency? d. 3 Exceptions: 1) trespass, 2) provocation, 3) voluntarily exposes to danger, Rest 3rd 24 i. Of course, even is strict liability N/A, may seek to recover for negligence p.686 HYPO1: Toy poodle,old lay,barks,lady falls,strict liable? Domestic,not abnormally dangerous,not stri lia,negligence HYPO2: Cobra,escapes from animal park,knocks down vase,strict liable? Wild,not characteristic harm,not stri lia,negligence HYPO3: Sleeping bear on the road,car accident,strict liable? Wild,not characteristic harm,not stri lia,negligence HYPO4: Cobra,bites child,strict liability Wild,characteristic,yes HYPO5: Gentle dog,dog bites,strict liable? Domestic,not abnormal dangerous propensity,no stri lia,negligence HYPO6: Pet raccoon outside,bites,strict liable? Wild,characteristic harm,yes HYPO7: Not a pet raccoon,strict liable? N/A b/c not an owner/possessor HYPO8: Pet raccoon,trespasser,strict liable? NO! trespasser cannot invoke benefits Rest 3rd 24 C Abnormally Dangerous Activities (may be governed by strict liability rather than by negligence) p.678 1. Revitalization of Hazardous Activity SL a. Rest 2nd 520: If carry on abnormally dangerous activity, subject to liability for harm to person, land, chattel resulting from activity, even if exercised utmost care to prevent harm. P679 i. Factors to help determine if something is abnormally dangerous (1) Existence of high degree of risk of some harm to person, land, chattel (2) Likelihood harm will be great (3) Inability to eliminate risk by exercising reasonable care (4) Extent to which activity is not a matter of common usage (5) Inappropriateness of activity to place where it is carried on (6) Extent to which its value to community is outweighed by it dangerous attributes 2. Yommer v. McKenzie Owners kept gasoline in underground tank, that contaminated neighbors water. a. Q: is storing gasoline in these circumstances abnormally dangerous activity. Look @ Rest 2nd factors. s watned to follow Rest 1st (b/c not liable) i. (e): proximity of the next door neighbor. Is activity appropriate to place where it occurs? NO! (1) Reason the tank is abnormally dangerous is that it is so close to the well. ii. Criteria developed to restrict recovery. Think that taking location into account, may be harder for to prevail, b/c can do things (like blasting) in unpopulated areas. In this case opposite happens iii. can sue for SL and negligence, not mutually exclusive (1) SL,liability w/o fault (a) Public policy, altering peoples choice (to think twice & act more carefully) (2) Negligence,under Palsgrafs orbit of danger (a) No evidence?, use RIL doctrine iv. s Defenses (1) SL, only assumption of risk

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(2) Negligence, comparative-partial def/contributory-complete negligence or assumption of risk Abnormally dangerous itself, doesnt turn on danger level. Better explanation is SL can be found by considering if likelihood of accident turns upon only s activities & safety precautions, or both & (1) SL standard: appropriate if person carrying on activity is only on in position to control harm (single injurer (2) Negligence: Both potential injurer & victim can take precautions vi. Law doesnt want to over-deter with strict liab b/c it could deter people from undertaking certain activities (such as driving) vii. NOTE: Selling explosives is NOT treates as strict liability (actually using the explosives is) viii. Actions of seller did not cause the injury, the buyer is the party who has control over when/where the explosives are used ix. Cross-Subsidization (pg 685) causes harm by making the activity artificially expensive, but also makes it artificially cheap for one party (Ex. automobile manufacturers being liable for accidents caused by demolition blasting) v. 3. Kent v. Gulf States (pg 685) Electrocuted while creating grooves in road w/ very tall pole, and throwing it around. a. Ct: Not SL case b/c (1) some activities cannot be undertaken w/out high risk of injury, (2) b/c conduct of young man was crucial in bringing harm (single injurer accident rule) i. He initiated contact w/ power line so unfair to unload full cost onto utility company b. Use negligence (not SL) b/c of s conduct. knew of high tension wires & had role in bringing about accident. c. When use Negligence v. SL? i. Strict Liability (if permit SL, costs) (1) When dangerous activity itself is the cause of the accident (2) Only 1 person controls danger the (in this case there are 2 factors: high tension wire & P) ii. Negligence: Where it is likely that 2 people have control over the accident. (1) Claim Reasonable Company Std (2) Problem w/ comparative/contri neg, (L.Hand Form is N/G) why? iii. Wkrs Comp,barred from suing employee d. Abnormally Dangerous Activities (in relation to Strict Liab.) i. Rest 2nd,MANY cts rely on them (weigh & balance the factors) p.679 ii. Rest 3rd,Diff formulation,Encompass the single-injurer accident rule p.687

XV. PRODUCTS LIABILITY (PL) (sum of many diff parts, no one approach) p.691 A Historical Background 1. From No Liability to Negligence 2. From Negligence to SL a. Fault reintroduced i. Products Liability version of SL is not identical to abnormally dangerous conditions / animals. It is not necessarily that strict. ii. Stri Lia is only 1/3 possible claims can bring after being injured by defective product (not mutually exclusive). C/A for Negligence, Breach of warranty. (Each of these has different characteristics & types of damages). iii. Advantages/Disadvantages to these (1) SL: Desirable b/c sidesteps some of breach warranty/negligence claims; can sue anyone in selling chain (manufacturers, wholesalers, retailers-Rest 2nd 402A). Sidestep issue of privity of K. Dont have to worry about some defenses. Looks at safety in retrospectively. (Escola) (2) Breach of Warranty: Only apply to party or in privity btwn retailer and consumer (K parties). N/A to wholesaler or manufacturer. If only dealing with seller, and dont have express/implied warranty from mfg, but be restricted to suing retailer. Damages = no punitive, only tort claim (Henderson) (3) Negligence ( Prove breached a duty, trigger contributory negligence claim, Res Ipsa) (4) Comparative Fault (negligence can claim against you even in SL case)

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Escola v. Coca Cola Bottling injured by exploding coke bottle; alleged that (bottler/deliverer) was negligent for not detecting defect i. Ct: In casebook, CONCURRING OPINION Basic Concepts Applied Today (Dual Limitation, Public Policy). Traynor: Uses economic analysis ii. Res Ipsa isnt best way to proceed. Best way to proceed is strict liability (even in absence of negligence). (1) Innocent victim should not bear burden. Should not have to prove (2) MFG should bear cost / spread cost b/c only position to spread the costs (pass along to consumers) (a) MFG has access to info showing what caused defect. (3) Difference b/w Res Ipsa & SL for : If dynamite explodes (something that blows up even when person exercises case) and injured. Better chance of winning under SL. Problem with Res Ipsa is that it could have occurred w/o negligence. iii. Traynor: Defective if: (1) unsafe b/c normal-proper use, or (2) unsafe when reached the market iv. For PL, has to show 4 things: (1) MFG actually made the product (2) Show is injured Dual Limitation imposed on SL: (3) Injuries can be traced to product as it reached the market (In same condition as when it left company) (4) It was in normal & proper use v. Of $100 spending on safety gets $80 in harm prevention. Negligence: will not spend the $100, and wont be negligent for failing to do so. SL: Still wont spend, b/c cheaper to spend $80 in damages c. Restatement 2nd 402A (1965 p699). More recently 3rd Restatement adopted. Both out there & need to be considered, but case law predominately reflection of the 2nd. (Burden on ) i. If sell defective product in unreasonably dangerous condition to user or consumer or property, seller is liable for physical harm caused b/c of this danger, if (1) Sell in engaged in business of selling product (Anyone who sold product to anyone (retailer, mfg, wholesaler); Not all states follow. Some permit against mfg & if sue other people, have to show they are negligent. Minority approach.) (2) AND It is expected to and does reach user/consumer without substantial change in condition (a) Seller not liable if product sold in safe condition, & subsequent events cause it to be unsafe (b) Has to be dangerous beyond what consumer expects ii. This rule applies even if (1) Seller exercises all care AND (2) There is no K relationship between buyer and seller d. Restatement 3rd . Still burden on . i. Limited SL e. Notes p.700 1. Non-Manufacturer Sellers (p.700)-One who sells a product for SL raises a number of problems. a. SEVERAL states have adopted legislation to limit the liability of non-manufacturer sellers to cases in which the sellers were negligent (TX) b. SOME states provide a non-manufacturer seller is entitled to indemnity c. Wholesalers and retailers generally determined sellers 2. Long-Term Leases: Widespread acceptance that long term leases are typically considered sellers: Little difference b/t selling & leasing for a couple of years HYPO1: BUT if rent car for a weekend, prob. couldnt apply b/c SL not analogous to a sale. 3. Used Products: Cts are divided over whether to extend SL to commercial sellers of used products. a. May also increase number of dangerous second-hand products in use. b. 3rd Rest 8 limits liability of used goods sellers (Commercial Sellers) to harms caused by negligence or by the products failure to comply w/ safety statute or regulation. BUT if the sellers marketing practices would cause reasonable buyers to think that the product in question is as good as new, SL for manufacturer defect may be imposed. HYPO2: Couldnt sue neighbor in SL if bought used car b/c isnt engaged in business of selling product. 3d Rest typically meant for those that are commercial sellers. 4. Products v. Services a. Some who sell products in the ordinary sense of the term have been exempted from SL b/c they providers of services rather than mere sellers. (i.e. pharmacists in DES not subject to SL) b.

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b. SEVERAL tests emerged to distinguish products from services REVIEW: What does have to establish? a. Defective at time left sellers hands b. That it caused the injury c. That it was defective unreasonable dangerous to him / property d. Seller is engaged in selling product HYPO3: Coke exploded b/c someone else dropped at store, N/G b/c product became defective after left sellers hands. HYPO4: Dropped coke on her foot b/c in flimsy container, need more info HYPO5: gets run over by the truck, SL N/A b/c negligence of the driver, not the product 5. B MFG & Design Defects 1. Greenman v. Yuba Power (pg 702) Concurring Escola Judge. gets Shopsmith, used a few times & while working on piece of wood, it flew out from device, hit him in head & caused injuries. Sues for breach of warranties, but MFG says not enough notice of Breach of Warranty w/n reasonable time. a. Ct: combines 3 product defects together (MFG design/defective design/failure to warn), typical app to 2nd Rest i. Not limited to warranty claim. If put product on market, it is assumed it is safe. Shouldnt matter if bought b/c of brochure, or b/he assumed it would be safe, etc just that it had defect that injured an innocent user. ii. Use SL, b/c cant use contributory negligence, and more likely to get punitive damages. (Cant we just rely on free market/competition to develop safe products?) iii. To impose SL on mfg, not necessary to establish express warranty; SL when item is place on mkt, mfg knows it will be used without inspection for defects, and defect causes injury to human. iv. Purpose of PL is to ensure that costs of injuries resulting from defective products are borne by manuf rather then Ps v. Plaintiff wants to bring case as SL b/c they CAN SUE EVERYONE RELATED TO SELLING OF PRODUCT AND DONT HAVE TO PROVE BREACH OF DUTY b. NOTES: Look at 3rd Rest: Explicitly defines 3 categories of claims [product defects] i. MFG Design: Product departs from intended design, even though all care was taken in preparation and marketing (E.G., Put wrong size screw in; didnt follow their own design) ii. Defective Design: when foreseeable risk of harm could have been reduced/avoided by reasonable alternative design (Product entered market as intended, but design is not safe enough) Importing negligence in a SL scheme, care, foreseeable, reasonable Makes it harder for to bring, b/c almost have to go halfway to prove was negligent. s / Consumer advocates hate 3d Rest; Companies love it. Design cases not requiring proof for reasonable alternative Few cases relieve the of the obligation of establishing reasonable alternative design to recover on design-defect theory. IF something is outrageous enough, dont have to prove iii. Failure to Warn: Inadequate instructions / warnings when foreseeable risks of harm posed by product could have been reduced or avoided by provision of reasonable instructions or warnings by seller or other distributor (1) Courts find this to be very pro-, and this is why sometimes courts wont apply. It is a political process in implementing the Rest 3d. 2nd Restatement MFG, Design, Warranty 3rd Restatement (1997) (Ds like) (a), (b), (c) Care, Foreseeable, Reasonable -Few exceptions where dont need reasonable alternative design -Imports negligence concepts Yes N/A 2d-Less burden on to prove Most cases under 2d 3d-More burden on to prove Still relevant

Products Liability Stri Liability

Negligence Warranty

Yes N/A

2.

Larsen v. GM(pg 714) Larsen in head on collision. Cause steering wheel mechanism to thrust backward and hit him in head. Alleged a design defect. AKA 2nd Collision is the body in contact w/ interior. 1 st Collision is car crash

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a.

b.

Ct: Products can still be defective if (1) does not protect reasonably-failure to be crash-worthy b/c crashes are foreseeable (2) that when accident occurs, causes more serious injuries than should have been. i. Widely followed principle Case is really about negligence. Dont have to look at SL b/c looking at the reasonableness of the design i. Under 2nd Rest, defective design is where a product is not safe enough. (1) Under SL, look at retrospectively (given that this happened, was product safe enough). (2) Under negligence, ask when they were designing car, was it reasonable that they designed it a certain way (prospective view) ii. would prefer retrospective view b/c must establish the defect n the product. iii. Damages: injures resulting from steering wheel shaft and not the accident.

Barker v. Lull Defective design case where high lift loader tips, coworkers tell him to jump, and he does. a. Minority Holding: 1) no state follows, 2) departure from 2nd Rest, 3) inconsistent w/ 3rd Rest, 4) Cali ct limits b. Ct: Jury should have been given 2 Test to Prove Alternative Design i. Consumer Expectation Test. Was it safe enough in keeping with expectations of reasonable consumer (1) Soule (p.724): Cali Sup Ct held this test should be used in only in a few cases where everyday experience of consumers gives them a basis for expecting a minimum level. (2) evaluating a design. Rest 3rd 2 p.724. ii. Risk-Best Test (special procedural rule): Was it as safe as should have been when weighing risks and benefits of design (1) Once proves proximate causation of injuries, has burden of proof (ANOMALY) (2) must show that benefits of the design outweigh the risks of the design c. Barker illustrates 2 advantages for ( doesnt have to prove all the elements) i. If Ct adopts special legal tests (diff from negli): pro- ii. If Ct adopts procedural rules: pro- d. SL is retrospective inquiry, whereas negligence takes prospective inquiry. Barker court is influenced by this, and is why they think it is ok for burden to shift to e. Many juris require an alternative reasonable design, which Barker doesnt require. In addition, CA (3rd Rest) have cut back on consumer expectation test (p724, note 3). So consumer expectation & burden shifting approach are very much the MINORITY. This is window into pro- formulation, but not majority. HYPO: If injured in car accident, can you sue mfg & seller by saying you got into accident & were injured? Look at notes (p723, note 2) Even with no evidence it may be enough to get to court, & burden of proof shifts to D to prove there was no defect. Barker opinion shows this may be sufficient Risk-Benefit Test (Barker) Negligence L.Hand Formula Barker Scenario -Prospective inquiry -POV of before accident -Likelihood of Damage -Focus on was bad 4. Strict Liability 3rd Restatement Wkrs Comp

3.

-Retrospective Inquiry -Brings in foreseeability Bars employee liability -POV of after accident -Harder for s to prove -Focus on product was bad

Wilson v. Piper has evidence that engine subject to icing and fuel injection not. Sup Ct says not enough for to get to jury. [Case is more Pro- than Barker) Supports 3rd Rest. view on alt. design a. Ct: lacked sufficiency of evidence. needed to show it would be technically feasible & practicable to use the fuel injection system. Not enough to say fuel injection safer to stop icing. Have to show a reasonable alternative design exists (holistic pov) i. Which would be the most safe (e.g., maybe fuel injection is less likely to ice, but is more likely to stall) ii. Cost if adding fuel injection, would triple cost, then it isnt practicable. iii. Economy of operating iv. Maintenance requirements b. Relevance of Fed Regulations? (minimal stds)

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c. d.

Compliance does not mean loses & wins, but taken into consideration Narrower view of design defect. SL Test is whether reasonable prudent mfg would sell product knowing of the defect. (this is retrospective view) Consistent w/ 3rd Rests reliance alt reasonable design (poses more burden on ): pre-3rd Rest but foreshadowed Notes p.716 i. Products Liability & Aircraft: Congress General Aviation Against Aircraft Manufacturers (1) Small-aircraft industry was destroyed by productspromoting safety by expanding liability (2) vaccines) (a) Like the 3rd Rest runaway liability by imposing discipline & limits ii. Cost-Benefit Analysis in Products-Liability Cases p. 717 (1) MOST states versions of design-defect law require factfinders to make judgments about product design (2) Barker: If improving a product would cost more than the benefits of the improvement, the manufacturers failure to make the improvement does not render the product defective (3) Consumer Expectations: Cali Sup Ct and 3rd Rest abandoned this approach i. ii.

5. Goldfarb Summary Outline a. MFG Defect b. Design Defect i. Barker (1) Consumer Expectation Test (was product safe when seen from view of reasonable consumer) (2) Risk Utility Test (cost benefit): Shift Burden of Proof to D ii. Wilson (1) Reasonable Alternative Design c. Failure to Warn i. Goins C Failure to Warn 1. Goins v. The Clorox Co. (pg 719) s mom mixed cleaning products, created nerve gas, which killed mom & injured friend. Concept behind failure to warn is that some products are dangerous in and of themselves, and others are dangerous b/c seller has provided insufficient warnings to use the product properly. a. Ct: loses b/c labels was in compliance w/ TN law + fed statute, so presumption was adequate. So burden on to prove not effective. Lost b/c didnt do that (could have gotten affidavit from expert saying not adequate). b. How prove label not adequate? i. Not prominent enough ii. Language not specific enough c. 2nd and 3rd Restatement both recognize Failure to Warn as a cause of action d. Notes: p720 i. Rebuttable Presumption Based on Govt Compliance: MANY states hold that compliance w/ govt reqs on labeling, licensing or product approval raises a rebuttable presumption that a product is not defective. (1) How to Rebut? (TX) (a) fed std/reg was inadequate to protect public from unreasonable risk of injury/damage (b) MFR w/held or misrepresented before or after making product ii. Warnings Never Read (1) Depends on juris, SOME cts that who admits to failing to read inadequate warning cannot recover under failure-to-warn theory. OTHERS takes opposite position. Goins said this means they cant prove causation. Other courts dont agree, & say fact didnt read is b/c there was something wrong with it, and it was inadequate and didnt reach user. iii. Heeding Presumptions in Warning Cases (1) Pro-: SOME States entitled to rebuttable presumption so presumption shifts burden of proof to on the issue of causation. SOME cts say enjoys rebuttable presumption only in a case where no warning was given not if warning is allegedly inadequate (2) Pro-: p733

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(a) Rest 2nd 402A: adequate warnings immunize seller from PL (if not defective, nor unreasonable) (b) Rest 3rd 2: warnings are not a substitute for a reasonably safe design (label ok, if RAD to avoid risk cannot be reasonably be implemented). Pro- perspective on failure to warn. Pretty clearly that omission of instructions/warnings can make product defective. **Warnings are not substitution for a reasonable safe design. iv. Vaccines v. Expert Testimony in PL Cases FRE 702 D Damage to Property p.425 (Cant usually bring tort case for harm to product itself) 1. Economic-Loss Rule: In a product-defect case, rule prohibits recovery of damages for economic losses involving harm to product itself, but recovery of damages for harm caused to other property or persons is allowed. a. Product defect which has not caused physical injury ordinarily will not support an action for damages in tort. 2. Product Itself: 2nd Rest & 3rd Rest create SL in some circumstances when user or product is physically injured/property damaged, but dont cover circumstance where only the product itself is damaged b/c of defect. MOST courts hold that only remedy in this type of case is warranty (branch of K law). This may limit who can be sued, access to punitive damages. Basically tort remedies are not available at all where the product simply destroys itself

b/c exclusive remedy of warranty law. can only sue retailer b/c no K w/ MFR and retailer. E Defenses 1. State of the Art a. Bershada v. Johns-Manville Products. (p 729) Asbestos MFG wants to claim state of art defense. says not liable b/c didnt know product was dangerous i. Majority Holding: Most states allow SOA defense, Rest 3rd endorses SOA defense ii. State of the Art Defense: Product was the best/safest it could be at time of distribution given scientific knowledge at the time. Can be used for any PL. (1) Ct: Not valid to say product was as safe as it could be given knowledge at the time. Asbestos industry knew more than claimed. Ct says this is SL & looking retrospectively & asking if it is defective knowing what we know now. (2) How determine if product reasonably safe looking in retrospect. (a) Risk Utility Test (b) NJ Court does not do burden shifting think that Barker did, ruling limited to asbestos (3) To prevail on SOA defense, s lawyer cannot simply say this is the safest product available at the time. What does lawyer have to show to prevail on SOA defense? (a) Safest X that was reasonable attainable at the time, and that could be developed at the time. (4) Policy: Risk Spreading, Victim compensation, accident avoidance. (Notes suggest risk spreading is fallacy. iii. Minority Approach: Doesnt allow State of Art at all. Other courts split (even NJ allows it sometimes) (1) NJ did not allow state of the art here b/c feel MFG knew about the harm being caused. iv. Post-Sale Knowledge: A MFRs post-sale knowledge of hazards arising from modification of its product may support an action for failure to warn, even though MFR could not be held liable for defective design. 2. Misuse and Other Misconduct p. 733 (not a defense) a. In any PL case, element of s prima facie case will be to show 1) did not misuse it or 2) if misuse, it was foreseeable/predictable to . i. Product not defective if it is reasonably safe for the kind of use that is objectively foreseeable. ii. s defense, to show that accident was the s fault iii. In the Groins case, argued that they did misuse the product b/c didnt tell how to use properly. b. Known and Obvious Dangers: Misuse may also relieve of any duty to protect from harm, if confronts a danger which is known or obvious. In PL (like other areas of law), there is typically no duty to warn of a known or obvious danger. BUT cts may differ on what dangers are obvious. c. Modifiction by P - What happens when user modifies product and gets injured? This doesnt necessarily relieve of liability, if could have foreseen just that kind of event happening.

44

d.

Rest 3rd 2: Like in Robinson, cases should be dealt w/ by asking whether the product had a defect that proximately caused s injury, rather than by invoking an absolute rule that the MFR has no duty to anticipate modifications Misuse under Comparative Principles: Whether s negligence should reduce recovery. Variety of answers. i. for negligence or refers to s fault or wrongful conduct cts may be inclined to hold statute N/A to PL cases. ii. In many juris, comparative NEGLIGENCE has now been replaced by comparative FAULT (1) COMPARATIVE FAULT: Permit in a SL action to introduce evidence of s misconduct for the purpose of reducing/precluding recovery by the . i.

3.

Pre-emption of Fed Law a. Fed law is supreme unless Congress made it clear or something about fed scheme that makes it clear b. But there is a presumption against fed pre-emption

Policy Issues pg 743 1. Liability & Safety a. There are many ways that liability can make wld dangerous b/c it stifles R& D in fear of liability. Also costs for consumer b/c passed onto them. (i.e. overweight man and snowblower) 2. Product-Category Liability One way of making liability even more strict is to abolish the defect requirement entirely, making MFR liable to anyone hurt using the product. FEW CTS have held that a jury can decide that a particular product may be defective not b/c of some feature that might be improved but b/c the dangers of having the product on the market outweigh its utility. a. OBrien v. Muskin injured when dove into swimming pool, & injured b/c hands slide apart when make contact w/ vinyl lining & head strikes bottom of pool. i. MINORITY HOLDING ii. Ct: Majority find that entire product line/category is unsafe (all above-ground pools). Ct can determine that certain products should just not be on the market. Product can be defectively designed even if there is not safer way to design it. Anomalous b/c ct can find an entire product defective w/o an available RAD. NO Barker here (no indication of burden shifting rule) iii. On remand, analysis should take form of risk-utility. should try to show that the risk of having the product outweighs the benefit of having this product. will try to get jury to agree that 4 ft deep vinyl lined swimming pools just arent worth it. iv. Rest 3rd would stay case was wrongly decided. Permits a few products to be very unsafe (e.g., exploding cigar..risk, utility). Very narrow category. For most part, not defective if no reasonably alternative design is available. v. NJ Stat Annotated NJ Legis undid this. would lose b/c no alternative design. HYPO1: Similar to OBrien, under NJ Statute, would probably lose b/c no RAD HYPO2: s argument that OBrien was trespassing, Not relevant b/c this is SL, Tres/Inv/Lic only affects the owner under negligence and not the product Goins stuff) 1. 2. 3. 4. 5. 6. 7. XVI. A Risk-Benefit Analysis (Barker, OBrien): Role of compact cars ($, fuel efficient)] a. In Cali (Barker), s burden, other states s burden RAD (Wilson): whether technically feasible and practical a. Small cars are small for a reason (no other RAD alternative for them) Consumer Expectations (Barker): You know what youre getting Design Defect (Greenman, Larsen): Defective if not crash-worthy Fed Pre-Emption Rule: Not automatic (factors): If Congressional intent is clear by language or by law. Rest 2nd : less burden on Rest 3rd: more burden on (need alternative RAD) DEFENSES BASED ON PLAINTIFFS CONDUCT pg 747 Traditional Contributory Negligence 1. In General What is the impact of each of these defenses to damages?

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Contrib. Negligence: Comparative Negligence Pure: Modified: Strict Liability: Comparative Fault: Pure: Modified: Absolute Liability:

Complete Bar to damages Partial bar (% responsibility to client) Partial bar OR complete bar depending on what % negligence (cut-off) Does not recognize negligence, so no bar Takes in / negligence and other tortious conduct Partial Bar Complete or partial bar No effect if client is negligent. Does not permit defense.

Traditionally it was all or nothing approach. On common law, if was slightest bit negligent then completely barred from collecting anything. MOST states have adopted some form of comparative negligence or comparative responsibility usually by statute but sometimes by judicial decision. Victims negligence will reduce recovery, but not eliminate Rest 2nd 464: Negligence, conduct creating an undue risk of harm to other, Contributory Negligence, conduct creating a risk of harm to the actor. Rest 3rd 3: Rejects distinction: s negligence is defined by the applicable std for s negligence

For negligence on behalf of the the plaintiff -Failure to exercise reasonable care for own safety -Defendant must prove that plaintiffs failure was the factual AND proximate cause of the plaintiffs injury -DEFENDANT bears burden to prove contrib/compar negligence on behalf of the plaintiff 2. Imputed Cont. Negligence a. Western Union v. Hoffman (p 748) Failure to deliver telegram resulted in kids broken arm healing improperly i. Ct: punitive towards , so cts are looking to mitigate ii. Contrib Neg: must show that breached duty of care and that unreasonableness b/c was factual cause of injury iii. Parents Contri Neg does not bar sons right to recover (not imputed). Son not contri negli b/c did not know what would happen if arm was not set (Reas Per Std-15yrs) . (1) Fathers negligence does not bar sons right to recover. (2) Courts tend to be unwilling to impute contributory negligence because dont want to restrict lawsuits. However in limited situations this happens. (See Notes) iv. Duty of reasonable person to self may be higher or lower than duty to another person v. Notes: p749 (1) Imputed Contributory Negligence: Rest 3rd 5 p749 (a) Both Ways Rule (employer-employee under respondeat superior) (i) Generally, if negligence would have been imputed had the plaintiff been a defendant, negligence will be imputed to a plaintiff as well (b) 3 Principal Situations (principal-agent, joint venture, and suit based on injury to someone else) (c) Exceptions: Parent-Child, Spouse-Spouse, Driver-Passenger (d) When a relationship exists, s negligence is not imputed (i.e. employee negligently damages an employers vehicle, imputed negligence will not bar employer from suing or reduce recovery.) (2) Wrongful-Death, Survival, and Loss of Consortium Rest 3rd 6 (a) Derivative claims: damages resulting from a tort against a 3rd person (b) BUT ripple effect (i.e. contributory negligence) (c) Exception: seeks to recover for emotional distress caused by injury to a family member (3) Parent-Child Tort Immunity: Boy cant sue parents. Parents need to be able to raise children & discipline as they see fit. Still in force in a minority of states. (4) ONLY 4 STATES & DC retain strict common-law Contributory Negligence (5) Last Clear Chance Doctrine only applies in those systems still retaining common law Contributory Negligence (provides that negligence on the part of the P will not defeat recovery if the D through the exercise of ordinary care, had the last chance to avoid the accident) HYPO1: If doc on vacation when msg delivered, No contri negligence o telegram was not the factual cause of the injury. Since there was no factual causation, neither the parents nor the

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son could successfully make out a prima facie claim for negligence against the telegraph company, so there is no need to get to the question of contributory negligence, which is an affirmative defense. HYPO2: Husband walking on street w/ heavy traffic, killed by speeding driver (under contri neg juris) XIV. Wife files negligence+survival action+wrongful death+ loss of consortium, ripple effect it judgment good/bad B Comparative Negligence 1. Hilen v. Hays (pg 750); passenger injured when the car was in drove into the back of another vehicle. Whether passenger failed to exercise reasonable care b/c she knew or should have known driver was intoxicated. a. KY Court adopts pure compar. negligence b/c modified is unfair like contributory negligence i. Quick Review of Comparative Negligence: (1) Pure, liability proportion to fault (a) Pure Flaw, if 99% responsible, still sue for 1% (best arg to have modified) (2) Modified, cutoff, s contri neg above cut-off: no recoverys contri neg below cutoff-% to damage (very similar to common law contrib negl) (a) Modified Flaw, Many see as unfair based on the actual proportion of fault (49% v. 50%) ii. Make liability proportionate to fault, & modified doesnt do this b/c it enables 1 person not to be liable at all. If reading case from 1852, comparative negligence still in effect. Even today, a small # of states do this. iii. HYPO: If have 2 drivers in accident. Both injured and both negligent. (1) Driver 1: 51% responsible , Damages $100K (2) Driver 2: 49% responsible , Damages $100K (3) Under Pure Comparative Negligence State (proportional): (a) D1 v. D2, D1 would collect $49K, and D2 will collect $51K. This means that D1 started with $100K of damages, and he then has to pay $51K to the other driver. But he collects $49K. His ultimate outlay is $102K (IN hole $100K, Paid $51K, and Gets Back $49K) (4) Under Modified Comparative Negligence State (cut-off): (a) D1 collects $0, and will be out $151K (b) D2 will collect and will only be out $49K iv. Some courts base Modified on if is 50% or more negligent, and some say >50%. This is a big difference. (1) If 40% responsible and 60%, will recover 60% regardless if pure or modified (2) If 60% responsible and 40%, will recover 40% regardless if pure or 60% modified

C Assumption of the Risk (3 Kinds) p754 (defense for Negl and Strict Liab) XV. 2nd great defense @ common law was AOR. Like contri negli, it completely barred recovery by the A (1)Express (contract concept): 1. Some kind of explicit/actual agreement btwn parties where someone is relieved of liability B (2)Primary Implied (duty concept): 1. Risk is intrinsic in activity, & by participating you assume risk of activity, D has no duty to protect P from course of action they have consented to C (3) Secondary Implied (pg 20): 1. 3 pre-requisites. Ad hoc inquiry. (treated same as comparative neg, but not the same) a. Voluntarily elect to confront b. Subjectively appreciated the risk c. Manifested willingness to relieve D of any obligation of care, or had no expectation that care would be exercised 1. Introduction a. Coleman v. Ramada (pg 771) Going to corporate retreats and told to do an obstacle course for miniOlympics. Injured while going up slide backwards. i. Ct: Primary AOR, so no duty of to protect . ( argued/preferred Secondary AOR) (1) Primary implied, b/c the risk intrinsic to the activity of climbing up a slide backwards. The slide wasnt broken, electrified, etc and being asked to climb it. She consented! (2) This matters b/c under comparative fault scheme, (a) Secondary assumption of risk: only a Partial Bar. It is compared to degree of s fault. (b) Primary implied assumption of the risk: Complete Bar to recovery. ii. Notes p773 (1) Most states agrees that Express & Primary AOR are still a complete bar to recovery, but Secondary AOR is treated like comparative negligence.

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2. Express Assumption of Risk a. Gross v. Sweet (pg 758) goes to parachuting school. Student signs release when jumping. He has a pin in his leg. What he signed wasnt clear in the terms i. Ct: Express AOR, but s claim not barred b/c form needed to specify negligence. Form only barred actions arising under normal circumstances. (1) Waiver was for all unavoidable risks in the air. Doesnt preclude from suing where the business ran a sloppy operation / negligence. (2) Waiver agreement has to be specific (in that all claims to negligence waived) and in clear & coherent language. has to be able to understand. (a) BUT there is a diff btwn a corporate executive & person in an amusement park. (i) Cases will recognize broadly worded clauses in less precise language than would normally be required (formality issue, there is unmistakable intent of the parties) ii. Notes p761 (1) Express Negligence Doctrine p.761 (a) Some cts refer to the rule that a valid pre-accident release must focus the s attention on negligence as the express negligence doctrine, specified w/n the 4-corners of the K (2) Insufficiently Clear Language p. 762 (a) Even if release uses the word negligence, it may not survive scrutiny of the ct. (b) Turnbough (scuba-diving): Wording should express as clearly & precisely as possible the extent to which party intends to be absolved from liability. (3) Releases Void as against Public Policy p.762 (a) Winterstein (horse-racing, injured by another car during race) (i) Ct: Action against track for negligence was barred by release. Rejected s argument that agreement violated public policy. (ii) Ct: Car-racing not an essential activity and not heavily regulated by the state. Performing a service of great importance to the public?, No Type of business suitable for public regulation?, No (iii) Tendency for courts to not uphold releases due to public policy reasons. Rest 2nd emphasizes disparity of bargaining power as reason for not being able to uphold an agreement. (4) Releases Upheld: p764 (a) MANY cts uphold releases, especially in cases involving participants in sporting events. If release is less clearly written, ct is confident that understood what was being signed, especially if has prior experience. (b) A signed release may even be valid if claims not to have read it. (5) Parental Waiver of Childs Cause of Action p.764 (a) Scott (ski school release for son) (i) Ct: Although language was clear, goes against public policy b/c parent does not have legal authority to waive a childs future C/A for injuries resulting from 3 rd partys negligence. HYPO1: Z in rush to find parking, parks in parking lot, given tix stub (park @ own risk), comes to pick up car, car is stolen, Z sues parking garage for negligence, Z barred from C/A under Express AOR? 1. No, not waived b/c negligence was not expressed on tix stub HYPO2: What if negligence was written on ticket stub? Z barred under Express AOR? 2. Most likely not b/c release can be void b/c goes against public policy. Look @ factors on pg 779 ft 3 a. b. T 3. Primary Implied Assumption of Risk (burden of proof ALWAYS on P to show D had duty to protect) a. Turcotte v. Fell (pg 783); horse-racking jockey i. Ct: Primary AOR, no duty concept to protect from risks. Respect to hazards intrinsic to the activity. (1) Isnt really affirmative defense, but rule about duty. (2) Have to find that injury is intrinsic to the activity (sport, in this case) (a) If professional jockey & engage in horse races on regular basis, accepting risks inherent to activity, & so race track & other racers have not duty to protect you. (3) Making it a duty rule is important, b/c if no duty to protect from injury intrinsic to court, then comparative principles dont even come into play ii. HYPO: If on outward bound trip, get lost, suffering frostbite & hurt self. Could say it is a primary AOR. Supposed to get lost on an outward bound trip. could create waiver to be sure.

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iii. Notes p786 (1) AOR and Athletic Injuries: Spectators at athletic events have sometimes been held to have said to have only a limited duty to provide screening. Rest 2nd 50 p.786 HYPO: If jockey saw trench and consented to racing, possibly Second AOR b. Minnich v. Med-Waste, Inc. (p772); Public safety officer seeking recovery from owner of unoccupied tractor-trailer truck for injuries allegedly sustained when officer jumped inside truck to stop it from rolling into street i. Ct: Does not recognize Firefighters Rule and not part of states common law. (1) In general, justifications are inconsistent b/c there are so many exceptions. ii. Professional Rescuers (Firefighters Rule) p774 (1) Public employees (firefighters, officers) are precluding from recovering against a whose negligence caused the on-the-job injury. (a) Public Policy: Dont want to dissuade pple from calling in if fear of liability (2) In cases under primary assumption of risk. (a) Intrinsic to being firefighter/police that you will be subject to certain injuries, etc (i) Does not bar Exceptionally harmful risks (etc there is gasoline somewhere), (ii) E.G., Where lights used for marijuana plantation & there are also flammable chemicals. If there was an explosion, this rule may not apply b/c these are not run of the mill risks. (3) Notes p792 (a) Abnormal or Increased Risks (i) Even under FFs rule, liability has been imposed when s negligence increases the dangers ordinarily confronted by firefighter (i.e.failing to warn of a known hidden peril) (b) Intentionally Created Risks (i) ALL cts hold that ffs rule does not immunize an intentional or reckless wrongdoer from liability to a professional rescuer. (c) Abrogation of FFs Rule (i) # of juris has been legislatively or judicially repudiated.

Neg AOR

Summary i. Consequences of Negligence v AOR : Negl : Negl : Strict Liability Contributory Comparative Negligence Negligence Complete Bar Pure: Partial Bar Irrelevant Modi: Partial or Complete Bar Complete Bar Complete Bar Complete Bar c.

Comparative Fault S negligence, implied secondary AOR v. s negligence, SL

ii.

Difference btwn contr negligence and Secondary Implied AOR (1) Negligence = Failure to exercise reasonable care in protecting oneself. (2) AOR = some kind of risk taking behavior/willingness to take a risk. Daredevil type of mentality These are not mutually exclusive. Can both be negligent and assume risk.

iii. Assumption of the Risk (1) Express ( K based concept, so it too remains a complete bar to liability even after adoption of comparative fault) (2) Primary Implied (a) not affirmative defense, but a rule about duty (b) has no duty to protect from risk inherent/intrinsic in activity

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(c) B/C it is a duty, most jurisdictions say this is a complete bar to liability even after the adoption of comparative fault (3) Secondary Implied (a) Subject appreciation (b) Voluntary confront (c) Willingness to relieve 4. Implied Secondary Assumption of the Risk p775 (affirmative defense) Cts recognize 3 requirements (evidence of s conduct) 1. Subjectively appreciated the risk o If the risk in question was not in fact known to the , it is not sufficient, for purposes of establishing defense, that a reasonable person would have appreciated the risk 2. Voluntarily elected to confront it o Do not assume that knowingly and voluntarily confronting a risk necessarily establishes the defense 3. Manifest willingness to relieve the of any obligation of care or had no expectation that care would be exercised (probably Second AOR). o Some cts have held that affirm defense of AOR does not require proof of consent to relive the of his obligation of care, but merely evidence that knew nothing would be done to prevent harm from occuring. a. Pachunka v. Rogers Construction (pg 775) P slipped on wooden ramp while exiting house to avoid mud i. Ct: P had no reasonable alternative to using the wooden ramp in exiting the house, he did not voluntarily assume the risk of using the ramp ii. Notes: (1) Economic Duress & AOR at work p.778 (a) Individual who, in the face of an employers ultimatum or direction, elects to encounter a known dangerous condition, rather than risk losing the job, does not voluntarily AOR of injury. 5. Comparative Fault p.779 a. Treats on comparative basis all kinds of s misconduct as against all kinds of s misconduct. b. INTENTIONAL TORTS are not subject to COMPARATIVE FAULT c. Reducing Damages only effects compensatory, not punitive (punitive based soley on Ds conduct) i. Comparative Fault: Embrace more kinds of + behavior into comparative scheme. (a) States preference b/c will treat + more consistently, partial bar (b) MANY states now hold that negligence by the is a defense, in actions on SL (c) MOST states hold that s unreasonable conduct should mitigate s liability for recklessly inflicted harm (2) Conduct not encompassed in comparative fault (a) Intentional Torts, particularly by s Rest 3rd 1 (i) E.G., A beats up B. A cant defend self by saying that B was negligent for being in dark ally (ii) Some states allow to have s intentional torts to be involved. E.G., A taunts B, & then B hits A. Some states may allow B to defend by saying being taunted (3) Express & Primary Implied AOR excluded by Comparative Fault. They arent about fault so excluded Absolute Liability also excluded ii. Comparative Negligence: Comparing principles when & were negligent. When include more types of conduct, start to look at comparative fault. s Secondary AOR s negligence

Both (1) Under traditional common law, s negligence + Second AOR are identical, Complete Bar iii. HYPO1: A goes into burning house for $1, Both iv. HYPO2: A goes inside b/c of child, Sec AOR v. HYPO3: A jay-walks into heavy traffic, Negligence vi. HYPO4: Setting off fireworks in public & carelessly putting others in danger. A is there, approaches area b/c curious and tells the person shes consents to possible danger. B also wanders up and is

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daydreaming. Has no idea what is going on. Person ignites fuse and injures both A and B. What would happen at traditional common law? Traditional Common Law s Conduct C/A Negligence C/A Strict Liability AOR Complete Bar Complete Bar Contributory Negligence Complete Bar N/A

(1) Person negligent for setting off firecrackers in public place, creates unreasonable risk of harm. (a) As Claim: Secondary Implied AOR. When A sues, person will defend by saying that she subjectively and voluntarily encountered the risk that it is a complete bar. (b) Bs Claim: Doesnt voluntarily confront. Sounds like she was a bit negligent and unreasonable in preserving own safety. This would be a complete bar as well. (2) Another possible suit could be strict liability. Case will proceed under second count of SL. (a) As Claim: Complete Bar (b) Bs Claim: Contributory negligence doesnt matter. Not an affirmative defense to SL, so irrelevant & B can recover Pure Comparative Fault s Conduct s Conduct Negligence Negligence Second AOR Strict Liability Misuse, etc Reckless, etc Partial Bar Partial Bar

vii. Under Modified, cut-off proportionality applied to and . viii. When talking about comparative neg / comparative fault, talking about reducing compensatory damages. BUT DO NOT reduce punitive damages. ix. Uniform Comparative Fault Act p.803 (1) Model statute, generic version of pure comparative fault d. Kaneko v. Hilo Coast (p 779); , an ironworker, was injured when steel girt on which he was standing came loose b/c it had not been fully welded. i. Bar to Liability: (1) Under traditional common law, negligence and AOR were complete bar to liability (2) Under comparative negligence only changes rules on negligence, not AOR. AOR still a complete bar. ii. Kaneko moves towards comparative fault (merges w/ strict product liability) (1) Comparative Negligence only affects negligence where is sued for negligence. (2) Comparative Fault brings in broader category of misconduct for broader types of cases. iii. Instead of having different results depending on what person is being sue on (SL or Negligence as in above Hypo), but we are going to focus on what % of responsibility w/ and . (1) Concept is weighing & balancing fault v. fault, of variety of kinds. Liability should be apportioned according to fault. Comparing broader range of fault v. a broader range of fault. Examples p803 ft4 (We should be able to manipulate these types of examples) Wisconsin UCFA (Pure Comar. Fault) $75000 $50000 $0 $75000 $50000 $10000

NY 1 2 3 $75000 $50000 $10000

HYPO5: 6 s, jury finds 40%, each 10%, under modified compar negli juris, s recovery?

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1st arg, <6s, so can recover 2nd arg, >1, so cannot recover

XVII. JOINT TORTFEASORS p789 -holds that two or more tortfeasors may be subject to liability for the same harm and may be sued by the P, together or separately Whether the conduct on the part of other actual or potential s reduces a particular s exposure to liability. o Answer is based on whether is subject to several liability only or to joint and several liability. o Same rules often apply to liability based on intentional, reckless, and SL conduct. 3 Situations Giving Rise to Joint & Several liability (pg 808) 1) Indivisible harm (Kinsman No. 1) o Indivisible harm to was legally caused by the tortious actions of 2 or more actors (Kinsman) o Ex: Each driving own car, each collide negligently and collide, and hurt A. A can not separate harm caused by each driver. She has one harm caused by both of the drivers o BURDEN SHIFTING ONLY APPLICABLE!!! 2) Act in Concert (Keel, Hainline) o Persons acting in concert tortiously caused harm to the , regardless of whether that harm was divisible. o Aiding & abetting, and conspiracy o Ex: 2 people decide to batter A one hitting head, the other kicking shin. Although 2 separate injuries that could be put together, it is considered as one b/c acting in concert o NO BURDEN SHIFTING 3) Operation of law (vicarious liability) o Liability imposed by the operation of law o Respondeat superior, or other basis where vicariously liable for injuries o NO BURDEN SHIFTING A Joint and Several Liability p807 1. Definitions: Holds 2 or more tortfeasors may be subject to liability for the same harm and may be sued by the , together or separately. a. can collect in fully only ONCE, either all from A or all from B, or in part from both b. If A pays more than B, indemnify to recover the amount (i.e. employer-employee under respondeat superior) c. J&S liable is hugely beneficial, b/c can collect full damages from one of the however many s that were responsible. 2. Divisibility & Apportionment of Harm a. Rest 3rd 26 p.809 i. Divisible harms when: (1) Damages for an injury can be divided by causation (factfinder divides then into their indivisible component parts and separately apportions liability for each indivisible component part) (2) Damages can be divided by causation when the evidence provides a reasonable basis for the factfinder to determine: (a) Any legally culpable conduct of a party or other relevant persons to whom the factfinder assigns a % of responsibility was a legal cause of less than the entire damage for which the seeks recovery (b) Amount of damages separately caused by the conduct. ii. Otherwise, the damages are indivisible and thus the injury is indivisible. iii. If unclear whether damages are divisible, burden-of-proof issue may be extremely important b. Indivisible Harm (burden is on D to show harm is divisible) i. Michie v. Great Lakes Steel Division (pg 791) Gp of s stating harmed by pollution caused by 3 steel companies. s claiming indivisible harm. (1) Ct: s are Jt & Sev Liable. Burden on to prove injuries/harm divisible and proportional. Until then assume they arent divisible, so assume amount in controversy is met. Puts Burden of Proof on to show that harm can be apportioned. Widely held principle (a) s Evidence to Apportioned Harm (i) Try to prove harm can be apportioned & if succeed wont hold client jointly & severally liable, but just severally liable (just liable for harm they caused) & not be forced to pay for harm caused by others.

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ii.

(ii) How could prove this? Company Size New Plant Diff pollutant types (b) How to know if harm is divisible? (i) If s are unable to meet burden of proof that harm is proportional (2) BURDEN SHIFTS (Similarities btwn Michie, Ybarra, Sommers, DES, RIL, etc) (a) WHY? B/c is in the better position to show fault (greater access to superior information on what went wrong) Bruckman v. Pena(pg 793); s injury in 1st accident by 1sts, s injury in 2nd accident aggravated by 1staccident. sues 1st s (1) Minority Approach: Places Burden on to show that injuries are indivisible (2) Ct: Burden on to separate harm from 1st and 2nd accident!! Takes exception to the usual rule b/c incidents occurred @ separate times (a) This is prob b/c injuries occurred in one accident, and then gets injured again in another accident (i) If happened in concert, outcome may be different where has burden of proof (b) How to generalize why burden on ? (v. burden on ) (i) has superior and better access to info (like in Michie, where has superior access to info)

-s broken arm, 2HYPO4: Bruckman scenario-2nd accent was a consequence of the 1st accident. (apply proximate causation) 1st accident=broken leg, 2nd accident=weaken leg, so fell. to docs malpractice c. Act in Concert HYPO: 2 s acting in concert to break s arm+leg, Can s prove divisible harm?, doesnt matter b/c they were acting in concert so both Jt + Sev Lib. (irrelevant inquiry for Acting in Concert!!) 3. Effect of Comparative Negligence & Comparative Fault p.795 Before adoption of comparative negligence + comparative fault, Traditionally, joint tortfeasors were always Jt + Sev Lia for the full amt of the s indivisible injuries Adoption of comparative fault, which involves juries in assigning %s of responsibility has led to take tortfeasors %s of responsibility into account in dividing damages among s. a. American Motorcycle v. Superior Court (pg 795); Teenage boy seeks to recover damages for serious injuries when participating in cross-country motorcycle race for novices. 2nd complaint for negligent designed, management, supervision, administration of race. s file cross complaint against parents, that parents should indemnify AMA and that fault of AMA and parents should be calculated separately. i. C: Jt + Sev liability is still good law but N/A in this case, still gets $$. (1) s negligence is the not the proximate cause of the entire indivisible injury. (2) s culpability not equal to that of (a) s negligence relates only to a failure to use due care for the safety of other, while s negligence relates to lack of due care for the safety of others ii. Procedural Method: (1) does not have to sue all Joint Tortfeasors. In most states, has right to implead the other joint tortfeasors. Then can claim indemnity against other 3rd party , so that if one liable the remedy can be split across all s. (2) Organizers of race wanted to bring in whomever they could and try to push off damages. It didnt succeed in this case, but it is a common strategy. iii. Notes p799 (1) JS Liability: Cali S.C.-Comparative negligence retaining JS Liability, No majority rule Rest 3rd 10 (a) MANY juris enacted legislation abolishing/modifying JS liability. (i) r noneconomic damages such as for pain and suffering.

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(b) (2) Tort-Reform Movement p820 (a) Ill Legislation: Eliminated JS in actions for death, personal injury & property damages (medial malpractice exceptions) (b) Manufacturers: Unfair to make whose fault was very slight in comparison to other person pay full costs of s injuires (deep pockets, i.e. drunk driver-car manufacturer pays) (3) Calculating Shares of Fault p.820 (a) Immune Parties: If s injuries caused by negligence of s employer (not subject to suit b/c reduced b/c of employer? SOME CTS-Yes (b) Intentional Wrongdoers: Some s are intentional wrongdoers & others negligent? (i) Portion of fault can be allocated to intentional wrongdoer. SOME-Yes, MOST-No reduce/eliminate recovery from negligent s. (4) Persons who have Settled (a) s portion of s damages can be calculated to apportion fault to persons who have settled. Joint and Several Liability Today (Five Tracks) -Third Restatement notes there is no majority rule on this matter (referring to the prevalence of pure joint and several liability and comparative negligence together) -matter is largely statutory, many jurisdictions modifying or abolishing joint + several liab (California abolished J+S liab for noneconomic damages such as pain and suffering) 3rd Restatement identifies 5 patterns of liability for multiple tortfeasors (pg 799) -Joint and Several Liability -Pure several liability -Joint and several liability with reallocation -Hybrid liability based on threshold percentage of comparative responsibility -Hybrid liability based on type of damages 4. Releases from Liability a. McMillen v. Klingensmith (pg 821) B Contribution and Indemnity p806 (Contribution is not applicable to intentional torts)

HYPO: A injures B (broken leg), B goes to hospital, Docs negligence causes infection in Bs broken leg B sues A and Doc o As liable for 1) broken leg, 2) Docs negligence (proximate causation b/c foreseeable) o Docs liable 1) infection due to malpractice (severally liable) Damages: A pays all. But Doc indemnifies A for his malpractice (vicariously liable). Hospital can also be responsible under ostensible agency, so Doc indemnifies hospital. Indemnity complete reimbursement of one defendant by another Contribution partial reimbursement to one defendant by another 1. Notes p828 a. Indemnity & Contribution Distinguished p828 i. Indemnity-Shifts all the loss from one tortfeasor to another ii. Contribution-Tortfeasors sharing the loss (pro-rata, sometimes in proportion to responsibility) iii. Rest 3rd 23: Both are alternatives (1) But if 1 is entitled to indemnity from another, question of contribution will not arise b. Cases in which Indemnity is Allowed p809 i. Indemnity Allowed Only in 3 Cases, Rest 3rd 22 (1) When agreed to by K btwn the indemnitor and the indemnitee (2) When indemnitee is liable only vicariously for the indemnitors tort (respondeat superior makes an employer liable for employees negligence) (3) When a product seller (not otherwise at fault), is liable for injuries caused by a defect in a product manufactured by the indemnitor)

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c.

d. e.

f. g.

h.

i.

j.

Other Indemnity (supported by caselaw) (1) Indemnitees negligence allowed the indemnitor (intentional wrongdoer) to harm the (i.e. stores lax security precautions allow mugging) Indemnity based on K p828 i. If K expressly provides for indemnity, document will be enforced as written ii. BUT mere breach of K duty that does not expressly refer to indemnity may be insufficient predicate for full indemnity. Statutory Indemnity p810 i. Some indemnity rights created by statute (TX) Satisfaction-of-Claim Requirement i. Contribution or indemnity is normally available only to one who has extinguished the liability of the person from whom reimbursement is sought. ii. Ex: Doc who settled claims against him from administering bad drug had no right from drug mfr and drug distributor who remained s in the trial. Contribution and Intentional Torts i. Generally agreed that intentional tortfeasor may not obtain contribution Pro-Rata v. Proportional Contribution p810 i. Pro-Rata Old: If 3 joint tortfeasors, divide by 3 (regardless of fault degree), 1/3 of loss ( obtain same 1/3 from each) ii. Modern: Based on tortfeasors % of total fault Contribution from Settling Tortfeasors i. 3 Views (none are entirely satisfactory) (1) SOME permit action for contribution against a settling tortfeasor (2) OTHERS deny contribution from a settling tortfeasor if the settlement is made in good faith (3) OTHERS avoid contribution issue by holding that , by settling w/ a , gives up some portion of judgment obtained against non-settling s ii. ersion of Uniform Contribution Among Tortfeasors Act iii. Contribution issues do not arise if liability of joint tortfeasors is several (each tortfeasor liable only for an appropriate share of the s damages) Contribution Actions from Settling Joint Tortfeasors i. MANY states hold that tortfeasor who enters into a good faith settlement extinguishes the liability of other joint tortfeasors may bring an action for contribution. (also contrary authority) Contribution Actions barred from Immunity i. Person immune from suit by may also be immune from a contribution action by a joint tortfeasor. ii.

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