I.

Intentional Torts A. BATTERY: The intentional infliction of a harmful or offensive contact. 1. Elements: a. Intent on the part of the actor to cause bodily contact. The intent requirement is met either by a purpose to cause the tortious contact or substantial certainty that such a contact will result with another person (any person: you throw your running shoes into the crows upset at your loss in the race liable because you knew theyd hit someone). b. D sustains a harmful or offensive contact with Ps person. i. A harmful contact is a contact that causes pain or bodily damage. ii. An offensive contact is damaging to a reasonable sense of personal dignity. Under this test, a contact is offensive if a reasonable person in the circumstances of the victim would find the particular contact offensive (e.g., people accustomed to hugging each other would not prevail on a battery claim against one another). iii. An actor is not liable for a contact that is considered socially acceptable. iv. It is not necessary that P be conscious or aware of the contact but most of the time the victim is aware of the contact! [i.e. nurse touches patient inappropriately while patient is sleeping]. v. You have a duty to refrain from committing a tort- obligations created and we must follow them. vi. You don't have to physically batter a person. You can throw a stone and commit a battery. You can set up a trap and commit a battery. Battery is when someone creates a situation where harmful or offensive contact may happen. You pull the chair from under an old woman and cause harmful contact of her body with the ground. 2. Cases: a. Wallace v. Rosen (Fire Drill): socially-acceptable everyday contact i. D tapped P on shoulder in a crowded hallway during a school fire drill. Court rules that people must expect a certain amount of touching in a crowded world. This touching would not offend a reasonable sense of personal dignity and is not a battery. b. Fisher v. Carrousel (Black mans Plate yanked away) i. D ripped plate out of Ps hand in a rude and racist manner, and embarrassed P. The contact by D does not have to be directly to Ps body. If the contact is with something so intimately connected to Ps body, it is as if D made direct contact with Ps body. a. Fisher casewhen the employee went over and committed the batteryeven though it was an intentional torthe was upholding his duties as an employee. And was in a managerial position. Therefore there is liability for respondent superior. c. Spivey v. Battaglia (the unsolicited friendly hug case) Plaintiff and def. were coworkers at a company--for a fruit company. Lunch hour, several employees (including P and D) were eating lunch. The D in an effort to tease the P put his arm around her and pulled her close to his face. P suffered paralysis of her face. 1. Is this offensiveyes--he did it intentionally to tease her. a. (As a resultthe plaintiff suffered injury.) b. D is liable for all the harm that occurs d. Lambertson v. United States (Jumping on the back and the meat hooks) Since P battered the worker when he jumped on him, P is could be held liable for all the consequences of that battery facial injuries though he did not intend to cause them. 1

NOTE: it is crucial to distinguish the intent to cause harmful or offensive contact from the intent to cause a particular consequence which results from that contact. When the battery (or another intentional tort) is complete, the law holds D liable for all the consequences of it (why: deterrent purpose). This rule doesnt apply in negligence, where liability is limited to the foreseeable consequences of the Ds act (except for the egg-shellthin-skull cases). DONT FORGET: 1. If a battery has been committed (and we have an offensive contact and no physical harm) in such a case, the person is entitled to recover. The person has a right to be free from intentional offensive contacts with his physical person. 2. If a battery has been committed (offensive contact that results in physical harm) the plaintiff can recover for that physical harm. Whether or not that harm could have been predicted, does not matter. The defendant was acting harmfully. 3. The D need not actually touch the P at all, or even be present at the time of the contact to commit a battery (setting a trap and leaving battery). An actor is liable regardless of whether she uses her fist, a stick, or a bus to cause the contact, if it is intended to cause a harmful or offensive contact to the victim. The contact requirement has also been extended to include objects intimately associated with the victims body (e.g., knocking off the hat or pulling the lapels would suffice).Obviously, there are limits (hitting a bumper of a car is probably not a contact with P even though she is sitting in the car). 4. You may be acting with the best of motives but can still commit a battery (a case of Ds employee trying to set the Ps broken arm against her protests; P found this contact offensive battery). 5. No contact is intentional if it is not the result of a voluntary act. 6. Offensiveness is determined by an objective reasonable person test. 7. Remember about a hypersensitive P. Usually D is not liable unless he knows of Ps hypersensitivity, in which case a jury might find him liable. 8. You need not know the identity of your victim to be liable for battery (e.g., shooting at the crowd). 9. Immediate awareness is unnecessary (kiss a sleeping P or touch under anesthesia). Case: Mohr v. Williams (operating the wrong ear doctor is liable for battery). 10. Contact can be indirect. If you pour vodka into somebodys juice, you cause the victim to come into contact with the alcohol which s/he may find offensive. You rent somebody a room with bed bugs of which you know battery. B. ASSAULT: intentional causing an imminent apprehension of a harmful or offensive contact. i. A throws knife at you- u duck- was there an assault? Yes ii. A aims a rifle at you, you have a serious apprehension that you will get hit by a bullet--there has been an assault. A shoots or even doesnt shoot (and you reasonably apprehend that it can shoot)-assault. If the bullet lands-battery. 2. Elements: a. Actor intends to cause harmful or offensive contact or imminent apprehension of contact. The D must act with the purpose to cause apprehension of a contact or substantial certainty that the apprehension will result. Thus, as in battery, D may not avoid liability by claiming that he did not mean to place P in immediate apprehension of offensive touching, if he knew to a substantial certainty that fear of a touching would result. b. P must have imminent apprehension of the harmful or offensive contact. Fear of future contact will not support liability for assault (e.g., threats not imminent). 2

i. Apprehension does not necessarily mean fear. It is enough if P believes that if he does not take action, harmful or offensive contact will occur. Irrelevant if P is stronger than D and is confident in ability to stop contact. ii. An assault does not follow every battery. The patient at the hospital hypo was not aware of touchingno assault. You must be aware of it (i.e., imminent apprehension) c. Western Union Telegraph v. Hill (Fix the Clock): apparent ability to cause an imminent apprehension of harmful or offensive contact is sufficient for an assault i. D told P to come to other side of table so he could love and pet her and then reached over to touch her. Offer to touch in a rude and disagreeable manner combined w/ physical ability to do so will constitute an assault. It must appear to P that D has the immediate ability to commit a harmful or offensive contact. Absolute ability is not necessary. Apparent ability to cause an imminent apprehension is sufficient. i. Jury finds that during the act, the P thought D would have been able to touch her and was therefore in imminent apprehension of a battery, even though the battery did not occur. ii. The court said that the company is not liable for the acts committed by the D because he was acting out of the capacity of the job. REMEMBER: If a contact would not have been offensive had it been made, the threat of that contact is not an assault either. Apparent present ability to cause harmful or offensive contact means whether Ds act would put a reasonable person in apprehension of an unwanted contact, not whether P is in fact able to make the threatened contact (e.g., the unloaded gun hypothetical: even if P knows its unloaded, D doesnt, and thus, may reasonably apprehend). Mere words alone cannot constitute an assault. But words coupled with actions or other circumstances (e.g., D threatening to punch you and holding his fist in front of your nose) provide necessary evidence of an imminent intent to batter the P. Other factors, such as conditional threats, may undermine the imminence element of assault. For example, words can negate the intent: If you werent my friend, Id beat you up. Some threats, however, may constitute an assault even though they are conditional unless D has the right to impose the condition (Get out of my property, or I will throw you out): If you dont get out of this street, Ill rip you in pieces. Otherwise, bullies would go unpunished and your right to walk public streets would be undermined. Distinguish from criminal assault, which is an attempt to commit a battery (even if P isnt aware of it). Every battery does not include an assault (e.g., kicking a sleeping beauty) although often occur together. Victim need not be placed in fear or apprehension of a touching from the actor to constitute an assault: you cause someone to apprehend or fear a harmful contact with another (e.g., you push a person towards another person, or say: watch out, a brick is falling on your head; or you sound a buzzer behind the victim in the desert, placing him in fear of a rattle snake bite). As with battery, D is liable for all the consequences (theres no proximate cause limit on intentional tort liability) of Ds intentional tort of assault, even unintended ones. E.g., you commit an assault and P falls, breaks his arm, and also suffers a mental breakdown. You are liable. C. FALSE IMPRISIONMENT 1. Elements a. D intends to confine P b. Ds act indirectly or directly results in such a confinement of the other. P must be confined within physical boundaries determined by D by: i. Physical barriers/ physical force/ threat of physical force (must be imminent) 1. Can be implied or expressed. ii. Duress threat to family members iii. Assertion of legal authority. 3

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c. Plaintiff must show that plaintiff was conscious of the confinement or is harmed by it. d. There is no reasonable means of escape. i. Must not be physically dangerous to P or a 3rd person. ii. Must not offend a reasonable sense of personal dignity 2. Cases a. Big Town Nursing Home (Mental Hospital) i. If a person or business has no legal authority to block someones exit from a place through the use of physical barriers and physical force F.I. a. After moving in, he decided he didnt want to be there any longer and decided he wanted to move outhe tried leaving a few times and each time he was forced back b. Hardy (Jewelry Store) i. If P decides to remain confined to a room to clear herself of suspicion, there is no false imprisonment. Even though she was misled to back room, she was not falsely imprisoned. c. Enright v. Groves (Dog Leash) i. D took P into custody for not furnishing a license when he had no reason to ask her for it. She was later convicted of a dog lease ordinance violation. Usually, no claim for F.I. will lie if person is later convicted of crime he was arrested for no matter how unreasonable the arrest is. But officer detained her w/o legal justification and conviction was unrelated to his reason for arresting her. She has a claim for F.I. d. Whittaker v. Sandford (Yacht): p was offered a ride to America on a yacht. Upon arriving the d failed to furnish a boat that would get her to shore. The ct held his refusal to furnish the boat which restrained her in the boat for a month constitute f.i b/c she was confined, conscious of confinement, no means of escape. The ocean was like the walls. Hypo: person is locked in first floor room and there is a window openconfinement is not complete. reasonable means of escape locked in a sewer and has to crawl out50 ft.confinement is complete f.i. occurred. Actor does not become liable for FI by intentionally preventing another from going in a particular direction in which he has a right or privilege to go. Hypo: person is in an automobilethe passenger asks to get out and the driver says no and zooms down the roadthe door is unlockedin theory the passenger can get out but in reality he or she is confined against his or her willthere is no reasonable means of escape. Confinement within the boundaries fixed by the actor must be complete. Confinement by physical forceconfinement may be by overpowering physical force, or by submission to physical force. In hardy case, p can argue that b/c the presence of the officers in a closed room she felt compelled to stay. D can argue that she was not prevented from leaving and she did not ask to leave. Ct held no f.i. Talk of the shopkeepers defense. D. INTENT 1. D acts with intent if: a. He desires to cause the consequences of his act. Or b. He has knowledge to a reasonable certainty that consequences will result from his act. 2. It is the intent to cause the contact that matters, not the intent to cause harm. 3. Transferred Intent

a. Intent is transferable among people. As long as D holds necessary intent with respect to one person, he will be held to have committed an intentional tort against any other person who happens to be injured: 1. If A throws a rock at B, but instead hits C, his intent to cause a battery to B transfers over to C. b. Intent is transferable among the 5 intentional torts. i.i.e.d is not included. i. If A shoots at cat but instead hits B intent for trespass to chattel will satisfy intent to commit a battery. REMEMBER: transferred intent applies where a specific act is done with tortious intent and misfires. 4. Cases a. Garratt v. Dailey (Chair Mover) i. 5 year old D pulls out chair from P who falls and is injured. Court ruled that D may not have desired for P to hit the ground, but D knew to a substantial certainty that the harmful contact with the ground would result from his actions. Children are liable. ii. The foreseeability of the harm is not a factor. If offensive contact and result is unforeseeable, defendant is liable. b. Spivey v. Battaglia (Friendly Unsolicited Hug) i. Court held that D could not have foreseen freak events that followed hug so he was not liable. Usually, however, the court rules the other way. i.e. Lambertson (meatpacking) practical joke. P was unloading truckmeat inspector jumped out and screamed boo and jumped on his back to piggy back ride---p fell forward and struck his face on meat hooksP gets lawyerP brings suit against the US Governmentas opposed to the meat inspector US has more assets fed tort claims says you cannot recover for certain intentional torts c. McGuire v. Almy (Insane woman) i. Insanity does not negate intent. Does not matter if D could not understand consequences. All that matters was that she desired to make contact with low-boy or knew to a substantial certainty that by swinging low-boy, she would make contact with nurse. a. No special consideration is given to whether or not the D is a young child or a person with mental or emotional problems. But the questions remains, did he have the intent to cause the plaintiff to plunge back to the ground? i. The intent doesnt necc mean that the actor has to understand the consequences. d. Talmage v. Smith (Stick thrower at kids on roof) i. D was attempting to hit one of the boys but instead hit P with a stick. P lost eyesight. D was liable for battery to P b/c he had intent with respect to other boy. a. Transferred intent also applies to victimsin this case the D intended to hit one of the boys? i. Intent was toward A or B and the person who is injured is C. It can transfer from one victim to another or from one tort to another. ii. HYPO: D shot at a dogthis would be a trespass to chatteldog owned by AD missed and went further and hit a boy scouts 5

bullet struck one of the boysd had no knowledge of the boy scouts in the foresthe can sue the D for batterydid D had intent? Yes he intended to hit the dogwhich is a T to C. iii. One intentional tort resulted in another tort e. Ranson v. Kitner (Shot dog by mistake) i. Mistaken identity does not negate intent. D shot dog thinking it was a wolf. He is still liable for trespass to chattels. 5. HYPOS: a. A throws bomb into bs office to kill B; A knows C is there but has no desire to hurt C; C is injured; A is subject to liability to C for an intentional tort. i. A had the intent to cause a battery to B; what results in this case is a transferred intentwhere C is harmed by As act intended for B. E. TRESPASS TO CHATTELS: Occurs when D intentionally interferes with Ps use or possession of a chattel. 1. Elements a. P must show that D acted with intent b. D either dispossesses P of his chattel or use or Intermeddles with the chattel c. There must be some kind of harm (no damages for harmless intermeddling: i. P is dispossessed of chattel. OR ii. Chattels condition or value is impaired. OR iii. P is deprived of chattels use for a substantial time. OR iv. P suffers bodily harm or some other person or thing in which P has interest suffers harm. d. RESTATEMENT 217 and 218** v. 217If there is intentresults in dispossession of t he chattel/use or intermeddling--then there is a trespass of the Ds chattel vi. 218--P can recover even if there was no harm recovery will be nominal damagesP must show one of these four things: a. Dispossession (wrongfully taking), b. impairment of the chattelin regard to condition quality or value.; c. Deprivation of use.; d. bodily harm or other harm to the possessorthe act that constitutes the infringement of the possessorif it causes harm to the possessor or someone who the possessor has a legal interest. 2. Cases a. Glidden (dog bite) i. D played with Ps dog, dog was not harmed. There is no liability for trespass to chattels b/c no harm occurred. b. CompuServe (junk mail) i. D used Ps computer service to send junk mail. Ds actions slowed down computer service and angered Ps clients. Ps chattel (computer software) was impaired and D is liable for trespass to chattels. ii. Court concludes that there was a trespass to chattel. a. There was intent b. The intermeddling and use is that they use their compuserve database to sent their electronic mail. c. Is there harm? There are two typessection 218 harm under part b and part d!! 6

i. Under B they are making the system functional less efficiently. The value of the product is diminished. Impairment of chattel. ii. Under D the effect this has between compuserve and its subscribers is not good. iii. Many customers have terminated their services. c. Motorcycle Hypo i. A buys new bike, rides over to girlfriends house. B (g/f) throws clay at bike, hits front wheel. There is a stain that you can only see in sunlight if you look real close. Experts testify that has no affect on bikes value. But on behalf of A can argue that to him quality was impaired. It can also be argued that this is a battery b/c he was connected to the bike, therefore the bike was an extension. Like fisher where the tray was connected with his body. d. Toothbrush Hypo i. A uses Bs toothbrush. Value of it is not impaired. But it may now be unusable to A. 3. HYPO: a. Hypo of person touching your cardid the D have intent? Yes. Did he intermeddle with your car? Yes. Was there harm? No b. HYPO of person keying your carits going to cost money to have those repaired. There was intent, intermeddling and an IMPAIRMENT there was harm! F. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS 1. Elements a. D acted intentionally or recklessly i. Recklessness is somewhere b/n intentional and negligent conduct. b. Ds conduct must be extreme and outrageous i. Conduct must exceed all possible bounds of decency, regarded as atrocious, and intolerable of a civilized community. ii. P is expected to be hardened to certain amount of rough language & inconsiderate acts. iii. Conduct will be measured objectively, but if D has knowledge of Ps susceptibility to emotional distress, then it should be evaluated subjectively. 1. Pot of Gold Case c. P must suffer severe emotional distress. Sometimes a conduct that occurred once, the conclusion may well be that the conduct is bad-not be admired- but not so outrageous and extreme to meet the second requirement of IIED. If the conduct occurs continuously then it may well be outrageous and extreme. o State Rubbish collectors Assn v. Siliznoff: They try to make him agree to a business deal; as a result from their pressuring/ threatening him, he suffered mental and emotional distress and ct held their actions are sufficient for I.i.e.d. o Slocum v Food Fair Stores of Florida: Employee told P that if she needed to know the price of an itemshe needed to go find out on her own, and that she stunk. The missing element is- the employees utterance was not extreme and outrageous comment-court is focusing on the nature of the conduct of the employee PAGE 15 and 16highlighted area. Has to be significantly bad conduct ordinary person would be outraged d. Conduct must have resulted in severe and emotional distress suffered by the plaintiff 2. Ct held that p must show: intent/ outrageous and extreme which RESULTS in SEVERE EMOTIONAL DISTRESS: the distress must be serious. Cant fall asleep at night is not enough. There must be a casual connection between the wrongful conduct and the emotional distress 7

 Element two and three are not independent they are interconnected to know if the conduct was extreme and outrageous- u can take into account how severe the emotional distress was OR VICE VERSA 3. Cases a. Siliznoff (garbage union) i. Threats to beat up P and put him out of his business made by D were so outrageous and extreme that they were liable. Does not have to be physical harm? a. He can claim---intentional infliction of emotional distress. b. Two to three referencesthis tort is called outrage court says yes it is extreme and outrageous conductgoes beyond the bounds of how honorable people do business. b. Slocum (You stink to me) i. Mere vulgarities obviously intended as meaningless abusive expressions are not extreme and outrageous enough. 1. The Court found that the comments were offensive and rude but the misconduct is not extreme and outrageousdoes not go beyond the bounds of how people act. c. Sexual Advances i. If man propositions a woman once, conduct is not extreme or outrageous. But if he continuously does it, it may be held that it is extreme and outrageous. d. Harris v. Jones (speech impediment) i. Humiliation is not enough to show severe distress. The court finds that P was already suffering from emotional distress and did not suffer a significant enhancement to this distress as a result of Ds conduct. Also must take into account environment in which act occurs i.e. a. In Ps defense we may argue that the person who was being taunted is an employee and it is his supervisor who is making these statements makes it more insulting and more difficult the employee also asked to be transferred which was denied by his supervisor! b. Court mentions this in the last paragraph even though the conduct was cruel and insensitiveeven though we consider the position of authority nonetheless we conclude that the actions of the D do not constitute IIED! e. Taylor v. Vallelunga (girl watching dad get beat) i. There may be liability for action directed at a 3rd partys immediate family member even if there is no physical harm. But P must be aware of 3rd partys presence. If 3rd party witnesses another person being beat, and suffers bodily harm and emotional harm, may recover from emotional harm. a. If another person is emotionally or physically hurt by your actionsA person can recover for emotion distress and bodily harm.. f. Bradley v American Smelting and Refining Co.

i. Lady thought there was a pot of gold in her backyardD buried a pot in the back and persuaded her to take it to town and open it in front of everyone and she was laughed it when the pot contained priceless items she knew she was being laughed at. ii. D did this b/c he knew about her condition so it was extreme and outrageous- she fell for it (bc she had this unusual belief) she suffered severe emotional distress. Its not a series of things he did it happened once but it was still extreme and outrageous. II. Privileges [Defenses to Intentional Torts] A. CONSENT: If P consents in some way to Ds conduct, it is not an unlawful act. 1. Express Consent: P either verbally agrees or agrees in writing to Ds act. 2. Implied Consent: Based on Ps manifestations, it reasonably seemed to D that P consented to the act even if he actually did not (use common sense to determine the scope of consent). Failure to reveal crucial facts relevant to Ps choice or Ps misunderstanding of facts take away from D the defense of consent. Example: P consented to have sex with D but D never told her he had a venereal disease (D cannot assert the defense of consent).Also, where the legislature has waived in to protect the disadvantaged class, Ps consent may not create a privilege (e.g., if minor consents to sex, such a consent does not bar the minor from suing for battery). a. Consent based on prior conduct by P. D must show that it was customary for P to consent to similar act based on past behavior. i. HYPO D has kissed P (his girlfriend) a thousand times. He sits down to kiss her there is an indication that she has implicitly consented to this. ii. HYPO Frat brothers play jokes on each other all the time. If P plays joke on D jury can find P consented to it b/c of past actions. iii. Hypo: lets say the D gets a personal foul for that hit it is considered a late hit the game is over and the D still hits the P one of the officials calls this as an illegal hit it was outside the rules of the gamewhich resulted in the physical harm of the Plaintiff. a. We as Ds counsel can argue that there is a lot of gray area in the enforcement of the rules a lot of the times coaches or players will call the hit in two different ways. Its hard to determine exactly when the rules have been violated. It is not right to say that someone who plays football never expected to be involved in a late hit. We can argue that this is outside of the rules of the game. iv. Hypo: A family game at a county park-uncle zack thinks he is a great playeras if he is a professional playerhe runs to the second base with his legs up in the air and knocks the infielder out. This was a family game 18 guys between the ages of 18-28.--> a lot of them played baseball in the past. v. Hypo: Its just a group of people from the family includes everyone from grandpa bob (88) and suzzie brown who is 8 and playing second baseIts a very mixed group of people and we have a young 20s athlete that knocks down an 8 year old kid. In which of these two hypos would you have a better chance of claiming consent?? In Hypo 1 while in hypo 2 there is no consent!! b. Consent implied by law (Dr.s Privilege) i. Patient is unable to give consent and ii. Immediate attention is needed to save him and iii. No indication that he would not consent if able to and 9

iv. A reasonable person would consent under the circumstances Distinguish from informed consent cases. Here, the issue is whether the patient consented to a procedure at all. By contrast, in informed consent cases, the patient admits that she consented to the procedure performed, but claims that the doctor did not provide her with sufficient information about the risks and consequences to make a proper judgment about whether to consent. Informed consent cases are viewed as negligence cases. c. Conditional threat. If an aggressor threatens to hit a victim if she doesnt comply with a condition (Ill kick your ass if you dont get out of the street) and the victim doesnt comply and he hits her, the victim has not consented. Condition is something the aggressor has no right to impose, and it constitutes an assault. By the same logic, the aggressor commits a battery if he follows through on the threat. 3. Cases a. OBrien v. Cunard (Boat Vaccination) i. P held arm for D to vaccinate. She consented to vaccination and cant recover. Ps behavior indicated consent. D can only be guided by outward acts and expressed feelings. b. Hackbart v. Cincinnati Bengals (Football Cheap Shot) (consent by implication) i. Violent nature of football does not mean that players consent to all contact. If contact w/n rules of game occur, there is no cause of action. But if there is an illegal hit that is not a customary part of the game (technical violations are ok), there is no consent. a. There is an implied consent when the P decided to play the sport that is the normal nature of the game Most courts would not hold as the trial court did in the case its a violent sport and so the court dismissed the case. App court said that P is entitled to his day in court if he can prove that there was no consent c. Mohr v. Williams (Wrong Ear) i. Drs are justified to perform unconsented to operation if it was necessary to save a persons life. But patient has right to decide how what medical procedure to undergo otherwise. Drs act in this case constituted an unwanted, offensive touching. 1. there needs to be expressed consent Doctor was to operate on one ear and saw nothing wrong with it but then saw that the left ear needed to be operated on he went ahead and operated that goes beyond the consent given for surgery it was an offensive touching and a battery the jury returned for over 14,000.00 but the trial court held that damages were excessive and ordered a new case on damages damages come to $39.00. d. De May v. Roberts (fraudulent doctor) i. D cannot obtain consent through fraud or misrepresentation. Even though P expressly consented to Ds presence, she did so thinking he was a dr. B. DEFENSE OF PROPERTY 1. Property owner may use only as much force as appears reasonably necessary to protect the property. a. Must first ask the other to desist. 2. Property owner may use deadly force against an intruder only if he believes he is in danger or his family is in danger of death or serious bodily harm. Cant kill someone just b/c theyre acting unlawfully or stealing from property. E.g. Surratt hypo of running over pedestrian at green light, defense of he was jay walking, unlawful 10

3. Mechanical devices a. Owner is privileged to use them only if he would be privileged to use a similar degree of force if he were present and acting himself. Therefore a property owner cannot gain a privilege to install, for the purpose of protecting his land from intrusions harmless to the lives and limbs of the occupiers or users of it, a mechanical device whose only purpose is to inflict death or serious harm upon such as may intrude, by giving notice of his intention to inflict, by mechanical means and indirectly, harm which he could not, even after request, inflict directly were he present. Katko v. briney. 4. Case a. Katko v. Briney (Spring Gun) i. A mechanical device capable of deadly force is not allowed when there is no threat to inhabitants of the property. Shot by setup gun case. 1. the owner does not have the right to use deadly force to protect a property where the intruder did not threaten his life or the lives of his family. Cannot setup devices that can injure/kill another for the purpose to safeguard your property. C. RECOVERY OF PROPERTY 1. A person who has been disposed of a chattel, may use reasonable means to recapture property. 2. Shopkeepers dilemma if X, a store owner, reasonably believes that someone is shoplifiting, they can detain them for a reasonable investigation in a reasonable manner and time. The shopkeeper privilege allows the store owner to not worry about getting sued for f.i if they stop a person they reasonably believed was stealing. 3. Shopkeepers Privilege: If a shopkeeper has a reasonable suspicion that a shopper has taken something, he may temporarily detain the shopper for the purpose of conducting a reasonable investigation. a. Investigation: must be reasonable as to time (usually less than 60 minutes) and manner. b. It is not reasonable to hold someone for the purpose of obtaining a confession. c. Can someone accost the person outside the premises to ask them back in to investigate? a. But is in the immediate vicinity of the premises. There is no opinion on this it is generally allowed 4. Cases a. Hodgeden v. Hubbard (Fight for Stove) i. If P fraudulently obtains property, he has no right to it, and no right to resist Ds attempt to recapture it. D has right to retake it if can be done w/o unnecessary use of force. Also, it was allowed to retake the property if it could be done without unnecessary violence to the person, or without breach of peace. ii. Fresh pursuit is limited to prompt discovery of the dispossession, and prompt and persistent efforts to recover the chattel. Any undue lapse of time during which the pursuit has not been commenced, or has come to a halt, will mean that the owner is no longer privileged to fight himself back into possession, but must resort to the law. b. Bonkowski v. Arlans Department Store (Shopkeepers Privilege) i. If a jury decides that private policemen of Ds store had reasonable belief that P stole from the store, then he had the privilege to detain her for a reasonable investigation. 1. There must be reasonable belief on the part of D. 2. It does not matter if P is innocent, as long as Ds belief was reasonable. 3. Detention must be reasonable as to time, place, and manner. REMEMBER: mistake of property or identity of a person is not a defense (e.g., you hit John thinking he was Mark, or you enter a land of another mistakenly believing that it is yours).Ranson v. Kitner (D shot and killed Ps dog, thinking it was a wolf: tort law places the risk of the mistake on the D). 11

SELF-DEFENSE a. Use of Force. As a general rule, one may use reasonable force to protect oneself from an aggressor. However, self-defense is a limited privilege. It is not a general license to attack an aggressor, or to respond to unwarranted provocation, or to give blow for blow. It only authorizes the use of force to prevent an impending battery or to stop one which is in progress. Example: if someone slaps you on the face, you cannot use force because the battery is over. You now have legal remedies. In other words, it is a privilege to forestall an impending battery, not to retaliate for prior ones. Similarly, theres no right to attack another simply because s/he may deserve it. Legal remedies serve to prevent people from taking the law into their own hands. Even where the privilege arises, it is limited: the victim of an aggressor may only use reasonable force in selfdefense. You cannot shoot somebody to avoid a slap in the face but you can block it. Self-defense is not warranted to remedy the wrong already inflicted, but to prevent further intrusion that cant be avoided by waiting for legal redress. On the other hand, the victim will sometimes be privileged to use more force than was necessary if s/he reasonably believes that force is necessary, even if, in fact, it is not. If D raises a knife, P doesnt have to wait to see his real intentions. P can strike D if P reasonably concluded that D was about to stab him, even if D actually wanted to scratch his back with the knife. b. Use of Deadly Force in Self-Defense (i.e., force intended or likely to cause death or serious bodily harm) Generally, an actor may use deadly force in self-defense only if she reasonably believes that she is threatened with deadly force which can be prevented only by the immediate use of such deadly force. Thus, there is no right to use deadly force in response to the lesser threat of non-deadly force. The majority rule is that a victim of deadly force does not have a duty to retreat; though the minority of jurisdictions requires it if one can safely do so (policy: prevent serious breach of peace). Even there theres no duty to retreat in ones own home or place of work. To determine which force the victim could use, it is necessary to characterize the type of force one is threatened with/reasonable anticipates (if someone threatens to tear an emblem off your coat, you cannot use a knife to stab him even if it is your only reasonable means of defense; on the other hand, if youre threatened with a baseball bat, you can use a brick or a gun). c. Defense of Others. Generally, an intervenor has the right to use the same force to defend the victim that victim could use to defend oneself (non-deadly v. non-deadly, deadly v. deadly). Though this privilege is subject to conditions: 1.) The intervenor must reasonably believe this person should have been privileged to defend herself (i.e., s/he is not an aggressor himself); 2.) S/he must use reasonable force (proportional); 3.) Such intervention was absolutely necessary to prevent harm to the victim. Two approaches used by different jurisdictions: reasonable perception (reasonably perceive you can defend); shoe-stepping (only has privilege to defend a victim if such a perceived victim was actually privileged to defend oneself)-better look before you get involved. III. Negligence A. ELEMENTS 1. Duty: a duty to use reasonable care. This is an obligation recognized by the law, requiring the actor to conform to a certain standard of conduct, for the protection of others against unreasonable risks. a. Actor had a duty to use reasonable care. D must act reasonably to protect others. b. The D had duty to use reasonable care. Every person has a general duty to act reasonably with regard to the safety of othersone must at all timesact reasonable. 2. Breach: Failure to conform to the required standard. Failure to act reasonably under the circumstances. 12

a. P must show that the Din the subject/conduct of the dutybreached dutyi.e. he failed to use reasonable amount of care. In occasions, failure to do something will not constitute negligence b/c party did not have a duty towards the person. 3. Causation: There must be a reasonably close causal connection b/n the conduct and injury. a. Factual Causation: Was the conduct a cause of the injury in the dictionary sense? b. Proximate Cause: Was there a reasonably close causal connection b/n the conduct and the injury? Were Defendants conduct reasonable or unreasonable. c. Broad view v. Narrow view. i. Broad view: here, plaintiff want to argue that it is a simple case. the general type of harm that occurred was foreseeable. i.e: this case is simple your honor, the perfume was highly flammable, it is foreseeable that this product will be used in a household maybe near a kitchen, a candle, someone smoking a cigarette and therefore it is foreseeable that it can catch on fire. Do not focus on the detail. Make the occurrence like a natural consequence of ds conduct. ii. Narrow view: when dealing with proximate cause, you need to characterize the facts to your benefit. Defendants argument would create a picture that the actions were complicated, complex, that they could not have foreseen what occurred. i.e: your honor, this case is complex. As a manufacturer of a perfume it is unforeseeable that the p would use in a candle, perfume are not used for candles and we did not intend them for such use, therefore it is unforeseeable and we should not be liable. 4. Actual Damage: P must show that he suffered actual injury no nominal damages. a. If defendants risk-creating negligent conduct threatens but does not harm plaintiff, however, he may be able to obtain an injunction and stop the activity as a nuisance. B. UNREASONABLENESS: P must show that D failed to act reasonably under the circumstances. P must show that Ds conduct posed an unreasonable risk at the time it occurred. Test is whether the risk outweighs the utility of the act. 1. BPL Formula: Liability exists if the gravity of the potential injury times the probability that harm will occur is greater than the burden of taking adequate precautions. a. Burden: A function of the cost that D would incur to avoid the risk and the broader social utility that would be impaired. b. Relationship b/n gravity and probability: The more serious the potential injury, the less probable its occurrence b b/f D will be held negligent for not guarding against it. i. i.e. Bung Cap. 2. BPL: where the burden is high, making everyone lock up their golf clubs, in a situation where the probability of the harm occurring is minimal then it is not unreasonable to have a golf club in the backyard. -this goes to the aspect of breach of duty. Did the defendant act unreasonably to have breach a duty everyone has. a. L= injury: when we assess L the proper focus is on the likely harm not the actual harm that occurred. The more serious the harm is the less probability of its occurrence is needed to satisfy that the act is unreasonable therefore party breaching their duty. Restatement 291: where an act is one which a reasonable man would recognize as involving a risk of harm to another, the risk is unreasonable and the act is negligent if the risk is of such magnitude as to outweigh what the law regards as the utility of the act or of the particular manner in which it is done. 3. Cases a. Barge Case: BPL formula was established by late Judge Learned Hand. The burden was small to require employee to be aboard barge compared to risk and gravity. 13

b. Lubitz (Golf Club): D left golf club in yard and his 11 yr. old son swung it and hit his friend. Court held Ds conduct not negligent. A golf club is not an intrinsically dangerous object that it was negligent to leave it unattended. i. the 11 year old boy was negligent in the matter in which he was playing golf. c. Blyth (Water Main): D installed water mains leading to fire hydrants. 25 yrs. Later, a hydrant in front of Ps house springs a leak due to frost of extreme and unprecedented severity. D is not liable b/c the heavy frost was so remote it was not the kind of risk that an ordinarily reasonable person would have took precautions against. i. some risks are so small that a reasonable person would not take them into account D had set up a system of under water pipes in a way that it would not be damaged by the winter but it was!--> D argues that this is not a normal winter judge says that D only has to take into account only what can be predicteda normal winter. Court reverses the lower court decision there are some risks that are so small that a reasonable person would not take them into account.
The defendants might have been liable for negligence, if unintentionally, they omitted to do that which a reasonable person would have done, or did that which a person taking reasonable precautions would not have done. Note 1pg 137: if there is some probability of harm sufficiently serious that ordinary men would take precautions to avoid it, then failure to do so is negligence.

d. Gulf Refining (Bung Cap): Gravity. D is negligent if he knew of or should have known of the risk. Even though it was rare for a gas drum to explode, D should have known that the old gas drum was in bad condition. D should have reasonably anticipated that an explosion would occur and cause injury. It does not matter that the probability was less than 50 50. In view of potential harm, D should have mended cap b/c there was at least some substantial chance of an accident. e. Railroad Turntable Case: Burden. Kid played on RR turntable which was supposed to be locked but was not at the time. Court held that public good demands use of lock b/c the burden of maintaining a sufficient lock is insignificant when weighed against the danger to be anticipated by not locking it. and the rr turntable was a valuable instrument that the public demanded its use. f. Guard Rail Case: D is not negligent b/c the burden of constructing guardrails on every road is too great and impracticable when weighted against possible injures. g. Vaporizer HYPO: Young girl was burned when vaporizer fell over and was burned when scalding hot water came out. Facts show that the manufacturer had knowledge of the possibility that someone could get burned by the fact that inside there is a large amount of scalding hot waterit just sits thereits not attached. D could have designed cap so water didnt gush out so fast. D is liable b/c the burden of taking precaution was less than gravity x probability. b. Williams case where the P was burned working on a farm, he was trying to open an industrial size can of gasoline---it was hard to get the cap off(as proven by evidenceit was used too many times that it was banged up and misshapedboth the container and the top). In the process of it being unscrewed a spark flew out and the P (it was neg on the part of the supplier of the Gasoline (D) to provide gasoline in a can that was this beat up) was burned. Jury came in with verdict for PApp court affirms c. Krayenbuhl the fact that children were trespassers on ds property did not deprive them on the right to enforce ds duty to use reasonable care to make its premises safe. In regard to the turntable, its use facilitates railroading, thus the general benefits resulting from its use outweigh the occasional injuries inflicted by it; hence the public demands its use. However, the machinery can easily lessen the danger by kids attracted to them by simply putting a lock. b/c the burden to take precaution is 14

slight and which will result in safer conditions, and a man of ordinary care and prudence would put on a lock, a failure to do so is negligence. a. In all cases of this kind in the determination of the question of negligence, regard must be had i. To the character and location of the premises, ii. Purpose for which they are used iii. Probability of injury therefrom iv. Precautions necessary to prevent such injury v. Relations such precautions bear to the beneficial use of the premises. In every case the nature of the precautions should be such as a man of ordinary care and prudence would observe under like circumstances. d. Snohomish County Ps driving and crashon a bridgeand fall to the groundclaimed that D was negligent that it should have had a barrier that a car (after hitting the barrier--) it would be stopped a. Court saysthe burden is sometimes too great it would cost a tremendous amount of the states money to ensure a car from falling off the road. i. Was the D negligent. 1. Court says NO not for the reason that the P is claiming b c the burden on the county to make sure all the roads have barriers to secure cars from falling off would be too great. e. Go back to the Lubitz case: Allegation that the little boy was negligent and the father was negligent in that he didnt put away the golf club and that he didnt warn his son about it a. Court says no negligence on the part of the father, risk of harm to anyone from a hose , rake, bat etc. is low could they harm someone Yes but the risk is low. 1. If it were a loaded shotgun that is negligence

b. Meteor HYPO: Ps car is hit by meteor and Ps injured when the roof collapses. P sues manufacturer for roof not being strong enough. Even though gravity is high, likelihood is rare, and burden is high. The burden would be too great to invest in what the P is looking for. Almost no chance of success for P. B. STANDARD OF CARE: Objective standard. Must analyze the circumstances in light of how a reasonable person would have acted in the same or similar circumstances. i. SOMETIMES question of the Ps act (reasonably act or was P negligent) will be raised. Contributory negligence-- In theory the question of the Ps contributory negligenceis the same as the negligence of the D. (still a standard of reasonableness). 2. Cases a. Vaughn v. Menlove (Hay Rick): It does not matter that D acted honestly to the best of his judgment. This case establishes objective standard. D built hay rick near Ps cottages. P warned D of danger. Jury should be instructed to determine how a reasonable person would have acted, not whether D acted to the best of his judgment. i. Reasonable person standard what level of care would be exercised by a reasonable person in these circumstances ii. objective standardA person is negligent if a person fails to exercise a reasonable amount of 15

care as a reasonable person would have in the same situation. 3. Physical Disabilities: If actor is physically disabled, he must use the care of a reasonable person under like disability. a. Roberts v. LA (Blind Man): Court takes into account physical attributes. The standard is still objective but modified to take into account Ds physical characteristics. D bumped into P while walking in post office w/o cane. Court holds the test is what a reasonable person who is blind would do under the circumstances. b. Roberts sues the State. Based on the actions of Mike Burson (blind) negligently. Runs a stand in a public building in the post office. The state as bursons employer is being sued here. i. Standard of care is an objective onethat the Ds duty is to exercise the same degree of care that a reasonable person under like disability would exercise in that situation. ii. The law does take into account the persons disability. The objective standard is, in essence, what would a reasonable person under like disability would do. a. Issuewas Burson negligent when he went to the bathroom without his cane. i. He worked there for almost three years ii. The Standard is we take the physical disability into account but still treat it in an objective way. Standard here is what would a reasonable blind person do. c. Children must use the care of a reasonable person of like age, intelligence, and experience under like circumstances. d. But if the child is engaging in an adult activity where adult qualifications are required, he will be held to the adult standard of care. Usually applies to dangerous activities, driving.. e. Snowmobile Case: B/C D, 13 year old boy on a snowmobile, was using a powerful motorized vehicle, he should be held to the standard of care expected by an adult. 4. Insanity a. court says if a person did not have knowledge of their disabilitythey cant be considered negligent in that emergency situationdid they act in a reasonable manner as a reasonable person would have in that same situation. b. This caseperson had insane delusion if she had no reason to know if that would ever occurcourt says she already had reason to know that she could be overcome by these delusions i. Maybe the lawyer for the D can argue that the person did not understand or have knowledge of the riskwe do not incorporate that into the jury instructions. c. Breunig v. American Family Ins. Co. (Batman Case): Mental illness is usually not taken into account unless the illness is sudden. If D had no reason to know, she should not be held to regular standard of care. 5. Acting in an Emergency: Court must consider all circumstances. D must exercise the level of care that a reasonable person would when under the same stress and pressure in making a split second decision. a. TRUCK DRIVER HYPO: Truck driver is driving down the road and there is pipes on the back of the truck driver is aware that if he slams on the brakesome of the pipes may come rushing forward and hit the cabin and crush the D. i. Lets say the D doenst stopbc it will kill himhe decides he just keeps drivinglaw of negligence doesnt say that Ds have to balance things i.e. my death against the death of those two people. 16

a. D is not required to be a heroin the emergency situationif the D decides not to slam on the breaks b. What about the fact that d was aware that the truck was dangerously loadedloading it in a way that you cant stop is negligent the D played a role in creating the emergency. b. Darting Child HYPO: Child jumps out in front of Ds car and if D swerves will go off road and at least severely injure himself. If D hits child, court must determine what a reasonable person would have done when presented with the same or similar sudden emergency. Think about the decision D was faced with at the very moment. 6. Professionals a. Professionals are required to use the knowledge, training, and skill of an ordinary member of the profession in good standing. The reasonable person takes on the profession of the actor and an objective standard is applied. b. B/C the jury is not in position to understand technical nature of work, P must offer expert testimony unless its something really easy for the jury to understand. i. Unless the lay person could easily identify Ds negligence b/c it is so blatant. 1. i.e. D amputates wrong leg or leaves scalpel in body. ii. Heath v. Swift Wings (Pilot Case): P was required to exercise the objective minimum level of care applicable to all pilots. It is irrelevant if he was inexperienced or had less personal training than most. 1. Heath was someone who was acting as a professionalacting with expertise. Jury instruction169ordinary prudent personthe court did not say that the D had the duty to exercise as much care as a reasonable personinstead the court said as a pilot with the same training etc. App court says the TC made error when it designated a profession as part of the standard of care. c. General rule is that it is the completely objective standardwe are asking the jury to decide what degree of care would be exercised by a reasonable person (if that reasonable person was acting as a doctor, engineer, lawyer etc.). i. The medical professionthe law is a little more differential to the medical field. 1. The standard is not what would a reasonable person do if he or she was engaging in conduct in of a doctorthe st--> what is the customary practice in the medical profession. 2. As a general ruleP must provide testimony of what the medical standard is 3. ***Part of the Ps burden of proofis offering evidence in the form of expert testimony. a. Laypeople ordinarily wouldnt understand. b. If the alleged act of malpractice is something that lay people can understandthe court can rule that need for testimony of an expert, is no more. 4. Except for exceptionsthere must be expert testimony. a. HYPO: Person goes to Dr. A and doesnt get the issue taken care ofgoes to Dr. Bwho uses x ray-and is able to treat the problem. The problem in the Ps proof she didnt provide expert witnesses as to what customary practices are. Dr. B said what I always do that is the closest P came to having testimony close to an expert testimony. i. All that tells the jury is that This particular doctor would do X Y Z. 17

7. Medical Malpractice: Customary practice evidence is usually found to be controlling. a. Boyce (Ankle X-Ray Case): Ps expert testified that he would have x=rayed Ps foot but did not present evidence that by not x-raying, D failed to conform to good practice standard in the profession so case cannot go to jury. i. A doctor is presumed to possess degree of skill and learning which is possessed by an ordinary member of the profession and apply that skill and knowledge w/ reasonable care. ii. D must have neglected to do something required by recognized standard of good practice. iii. P must present expert testimony unless negligence is obvious. iv. Negligence cannot be shown by the mere fact that operation was unsuccessful. v. A standard is not violated merely b/c expert disagrees w/ treatment of D. b. Morrison v. MacNamara (Locality Rule): D is held to a national standard of care expert testimony showing standard does not have come from same locality. i. Eliminates problem of P getting experts from same community to testify against D. ii. What is customary in the same community is that standard of care the locality rule. Many jurisdictions have modified the locality rule to say in a similar community. One of the criticisms of the original rule is that makes it extremely difficult to bring a medical malpractice case. 1. Lets say wrong foot cut off so you need an expert so you need to get a local doctor and get them to testifywhich is tough b/c no one wants to testify against his or her own colleagues. a. There are practical considerations. c. Scott v. Bradford (Hysterectomy): Informed Consent. P suffered injury after surgery and sued Dr. on grounds that he did not inform her of the risks involved. D must disclose risks of treatment and alternatives. All material risks must be disclosed. A risk is material if it would affect patients decision. i. P must show: 1. Dr. failed to inform patient of material risk or alternative. 2. P would not have consented if he was informed. 3. Adverse consequences P was not informed of actually happen to him. ii. Exceptions: 1. If risks should be known. 2. If disclosure would be detrimental to P. 3. Emergency situations. C. NEGLIGENCE PER SE: essentially means that if there is a criminal/or administrative statute that applies and the D was violating the statute at the time of the event the statute may be used to set the standard of care in a negligence case and therefore a party can be said to act unreasonable if they violate the statute. ( breach of duty) 1. Violation of a safety statute can be the basis for finding that the actor failed to exercise reasonable care. 2. The majority of courts will hold that violation of a safety statute is conclusive evidence that D failed to act with reasonable care under the circumstances. 3. It is not an automatic finding of negligence, however, the court may find that the party violating the statute established a valid excuse for doing so. 4. P must show: 18

a. P is member of class of people the statute was intended to protect. b. The type of harm P suffered is w/n the type of harm the statute was intended to prevent. 5. Excused Violation: An excused violation of statute is not negligent conduct. When an excuse is demonstrated, the violation is treated as merely evidence of negligence for the jury to weigh. A violation is excused when: a. Violation is reasonable under the circumstances. b. Person doesnt know or shouldnt know of occasion for compliance. c. Person is unable to comply. d. Person is confronted by an emergency. e. Compliance would pose a greater risk than noncompliance. 6. Court would instructif you find that the D was violating the statuteyou must find that he was also negligent. You dont need any more fact if the jury finds that the D was in violation of the statute---no more evidence is necessary. a. Surely a person acting reasonably will at least obey the statutory law! And thus the jury can be properly instructed that if you find the D violated the statute then YOU must find he was being negligent. 7. Three approaches to negligent per se: a. True negligence per se conceptif party without an adequate excuse violated a statute. b. Presumption approachtells jury that there is a presumption of negligenceit can be overcome with an excuse* Some jurisdiction say that it not negligence per se rather it is negligence 8. There can be a valid excuse for violation of statute if the actor has a valid excusethere is ordinarily no violation of a statute and the statutory standard is inapplicable. 9. Cases a. Martin v. Herzog (Headlights): P failed to have lights when traveling by wagon in highway. D failed to stay in the right center of the highway. P is negligent b/c P did not have headlights turned on while driving at night in violation of a safety statute. b. Zeni v. Anderson (Snow Path): Excused violation. P was walking to work in street when sidewalk was covered in snow (against a statute). P walked on cleared off road and was hit by D. P was not contributory negligent b/c observance of the statute would subject her to more danger than if she had followed the state. She had excuse to the statute and therefore the appropriate standard of care then becomes that established by common law. c. Safety Feature HYPO: Statutes are minimal requirements. A violation is negligence per se. But compliance does not establish that the person acted reasonably. When a court adopts a penal stature as the standard of care in an action for negligence, violation of that statute establishes a prima facie case of negligence, with the determination to be made by the finder of fact whether the party accused of violating the statute has established a legally sufficient excuse. If the finder of fact determines such an excuse exists, the appropriate standard of care then becomes that established by the common law. D. PROOF OF NEGLIGENCE 1. P carries burden of pleading raising the issue--filing the complaint. 2. P carries burden of producing evidence to avoid directed verdictthat there is a jury issue raised that a jury can find that there was negligence. 3. P carries burden of persuasion at trialburden is to convince the jury by a preponderance of the evidence that the D acted negligently and injury occurred as a result. If the jury can find that there is a majority that the answer is yes, then the preponderance of the evidence has been met. 4. D carries burden of proving contributory negligence b/c it is an affirmative defense. 5. Cases a. Goddard (Banana Peel not enough): P fell on banana peel in Ds train station. D was not liable b/c P did not present sufficient evidence that D should have seen and remedied the 19

banana peel. P presented no evidence as to how long peel was there. Case does not go to trial. b. Anjou (Banana Peel Enough): Constructive Notice. P gave evidence that banana peel was dirty and grimy evidence that the peel had been on the ground for a long time. Case should go to trial b/c D should have known and remedied banana peel. Here the evidence is sufficient to infer that d was negligent. c. Joye (Banana Peel not enough): P offered no evidence showing how long banana peel was on the ground. Case does not go to trial. i. The evidence is not sufficient so that a reasonable juror may infer negligenceand in the Anjou case the lawyer argued that the evidence was stronger bc the banana peel had physical characteristics that would indicate that the peel had been there for a long enough amount of time. ii. Jury could infer that it was there for a long time and that the D was negligenthad they been exercising care they SHOULD have had the knowledge that the peel was there. iii. It may be that the marking and character of the peel could have resulted from the actual fall. Court says these items are circumstantial evidence. P provided no direct evidence. d. Ortega v Kmart (Milk Slip): P slipped on puddle of milk in Ds grocery store. P did not present evidence as to how long it was there but did present evidence that D had not inspected floor in a long time. Case goes to trial b/c reasonable jurors could have found that D had constructive notice. i. the P need not show actual knowledge where evidence suggest that the dangerous condition was present for a sufficient period of time to charge the owner with knowledge of its existence. e. Jasko v. FW Woolworth Co. (Pizza Slip): The method of serving pizza created dangerous conditions that are continuous and foreseeable. There is no need to prove that D had constructive knowledge b/c the method of service created unreasonably dangerous condition. i. Plaintiff said we dont have to show conventional notice requirements b/c D created a dangerous conditionnotice to the specific item on the floor need not be shown! a. Paragraph 3the practice of not be shown b. What gives them constructive knowledge is the way they are serving the food.--> they should have at all times exercised reasonable care. f. HE Butt Groc. v. Resendez (Grape Display): P slipped and fell near grape display at Ds grocery store. Court held that display did not create unreasonable risk b/c there were cones around display, floor had non-skid surface. 1. Can argue that this case is very similar to the pizza onea. Customer fell by grape displays set up for sampling by customers. The court here takes the side of D b. The pizza case it was a tile floor with a slanted table. This casethe table was flat with protective floor mates. Enough distinctions between these two cases i. The manner of display of the grapes did NOT put them on constructive knowledge or notice. P fails to show how CK or CN may have existed. ii. PAGE 237Doctrine of Res Ipsadifferent category of circumstantial evidence cases. 20

6. Res Ipsa Loquitor: signifies that further details are unnecessary; the proof of the case is self evident. Allows P to point to fact of the accident to create an inference of negligence, even w/o specific evidence. Case can go to trial based on circumstantial evidence w/o any specific proof. Aids P where there is no direct evidence that D was negligent by providing a basis for inferring that D was negligent. P can show that a reasonable juror could infer that D was negligent by showing: 7. It is a rule that permits, but does not compel, an inference of negligence under certain circumstances. a. Three requirements: i. The event is out of the ordinary and would not normally happen in the absence of negligence. such events do not ordinarily occur unless someone has been negligent. ii. The instrumentality was under the exclusive control of D. iii. Plaintiff could not have contributed in any way. b. Majority View: The case can go to jury and jury may or may not draw an inference of negligence. The strength of the inference depends on the circumstances of the case. c. Cases i. Byrne (Barrel of Flour): P was walking by Ds flour mill when a barrel fell on him and injured him. This event woud not have normally occurred in the absence of negligence; it was under ds control; plaintiff was walking and did not contribute. Court held that even though there is no direct evidence that D was negligent, a barrel does not fall out of a building w/o negligence. A reasonable juror could find that it is more likely than not that D was negligent. ii. Larson (Hotel Armchair): P was walking by Ds hotel when a chair fell out of the window and injured him. RIL is not applicable b/c D did not have exclusive control over the chair a hotel guest may have thrown it. If a guest does something in the hotel there is no doctrine of respondtit superior. 1. Court will not ordinarily allow P to apply RIL when there are multiple potential Ds such as in a hotel; however, that is not the case as the case below will prove. 2. P must show by preponderance of evidence that negligence was probably Ds. iii. Ybarra (All Medical Workers Negligent): P is injured during operation and sues various medical workers who were present. P demonstrates that at least one of them was negligent but does not establish who. P may apply RIL. The event is out of the ordinary and should not occur absence of negligence. His shoulder was good. Ds had shared control of the instrumentality during surgery and he was unconscious for the procedure which had nothing to do with the part of body he feels pain. Therefore the defendants have the burden to exonerate themselves. P was unconscious and it would be unfair to make him prove one specific person was negligent. iv. Sullivan v. Crabtree (Truck Crash): Jury is permitted to infer that D was not negligent even though case went to trial on RIL. Here, there was a truck crash w/ no evidence as to what went wrong. Jury found that D was not negligent. Court affirms b/c RIL merely permits a jury to choose the inference of Ds negligence to other permissible inferences. It does not prove D is liable. RIL helps with Ps 2nd burden burden of production. He still must meet 3rd burden , persuasion. This case, this accident would not have occurred if it was not defendants negligence. The instrument was in his control or failed to proved that he lacked control of it and finally, the deceased could not have been contributory. d. Hypos i. HYPO 1 lets say a new hotel is opening. Everyone in the building is an employee of the hotel..as P was walking, she was struck by a chair that fell out of the window--? No one admits fault P can show that the chair fell from somewhere above and struck her.. she argues that there is enough evidence to get to the jury on res ipsa loquitur. 21

1. This is not an ordinary event that would occur absence negligence. 2. The hotel is in charge of all it s employees. 3. The plaintiff could not have contributed to this act in any way. IV. Factual Causation A. DEFINTION 1. P must show that Ds conduct was a factual cause of Ps injuries. (perkins case) 2. Logical connection b/n negligence and injury. B. TESTS FOR CAUSATION 1. But For Test: a. But for Ds negligence, P would not have suffered his injuries. If we take the factual scenarioand we take out of it the Ds negligencewould the result be changed? If so, then we have factual causation

b. The defendant's conduct is a cause of the event if the event would not have occurred but for that conduct. c. Plaintiff has the burden of proving but for causation. Plaintiff must prove causation by a preponderance of the evidence. Plus, plaintiff must prove that more likely than not the defendant was a but for cause of her injury.

2. Substantial Factor Test: requires that defendant materially contributed to the ps injury. a. Ds conduct was a substantial cause of the injury. b. Usually applied to situations where there are concurrent causes. Two fires A and B. in the absence of either fire, the other fire would have consumed ds house. when there are redundant cause. 3. There can be more than 1 cause: a. Ds negligence must be a cause of Ps injuries, not the cause. 4. Concurrent Factual Causes a. Tests Almost Always lead to same result. b. There is one exception when two or more negligent parties are involved and it cannot be determined which one of the concurrent acts was the cause of the injury. i. The burden of proof regarding causation shifts from the p to the ds to prove that they were not the actual cause of whatever occurred. KEEP IN MIND, p still has to satisfy that d had a duty, breached the duty and the harm occurred. ii. 2 FIRES HYPO: 2 fires move toward each other and unite to destroy Ps land. D may be able to argue under the but for test that the harm would have happened even if he were not negligent. Substantial factor test would show that both fires were substantial causes of the injury. C. CASES 1. Perkins v. TX RR (Train hits Car): Train was traveling over speed limit and hits car. There was negligence per se b/c speeding violated safety statute. But the evidence showed that the train would have hit the car even if the train had been going the speed limit. Thus, Ds negligence was not a factual cause of Ps injuries. They were going to get hit regardless. 2. Reynolds (Large Woman Falls Down Steps): P falls down stairway of Ds company. There was no light and no handrail. Court holds that if P can show that Ds negligence multiplied chances of injury, it is a factual cause. 3. Gentry (Trip on Steps Gun Shot): A man fell up steps and accidentally shot and killed P. P alleged that D was negligent for not maintaining deck stairs. Court holds that P must show that more likely than not Ds actions caused the injury. Speculation is not enough. He failed to proffer evidence to show that the steps were the cause of the accident as he claims. 4. Hill v. Edmonds (2 causes to car collision): Driver was negligent in accident but he hit a parked truck whose driver was negligent for not having lights on. Court holds that where separate acts 22

5.

6.

7.

8.

combine to produce a single injury, each D is responsible for entire result even if his act alone might not have caused it. Ds conduct a factual cause, not the factual cause. Trench HYPO: Constructor workers dig trench and dont put up reflectors. Truck drives ball and crashes, driver leaves seen w/o reporting. Another car comes along, with negligent driver, crashes and passenger is injured. Workers are negligent, truck driver negligent, and car driver negligent. All three are factual causes of the injury. When there is a single, indivisible injury, there can be more than one act of negligence that causes the injury. Anderson (2 Fires Merge): Def R.R. Company set fire to a bog which swept over a large area and connected with another fire already in existence. The combined fires burned over the Ps property. P claims the material element causing the injury was the fire which was started negligently by the D. D argues when a fire joins with another and then causes the damage to the property, if either would have destroyed the property, the D is not liable. a. 2 fires merge to burn Ps property. There is joint and several liability b/c either fire would have destroyed Ps property. Should apply substantial factor test. Summers v. Tice (Two Gun Shot): 2 Ds shot at quail in Ps direction. P was struck by one bullet but cannot show whose bullet it was. Court holds that Ds have burden of proof of showing who did not shoot P. The Ds have to fight it out and find out who is at fault. One of them was the factual cause to the P. a. It is fair, when both Ds are negligent, to take burden from P. i. BURDEN IS SHIFTED TO Dsto prove that he was not the one who caused itand so the other will be liable. Sindell v. Abbott: P cant show who manufactured the drug her mother took while pregnant. Market share liabilityP sues manufacturersand those manu. Can bring in other manu., as third parties. The manufacturers will pay the percentage of judgments- i.e. own 10% then they pay 10% of the judgment. a. FACTUAL CAUSATION i. It is a question of causea question of causation 1. If all the defendants jointly controlled the risk of harm, and the Plaintiff could establish by a preponderance of the evidence that the product was manufactured by one defendant, the burden of proof as to causation would shift to all defendants, so long as it only applies to a small unit of producers. Where in this case there are some 200 manufacturers this doctrine does not apply. a. In determining causation, measure the likelihood that any of the defendants supplied the product, by the percentage of DES sold by each of them for the purpose of preventing miscarriages. P asserts that 5 or 6 companies produces 90 % of the DES marketed.(that leaves only 10% for the rest of the companies to cover) Each manufacturers liability for an injury would be approximately equivalent to the damages caused by the DES it manufactured.

9. HYPOS a. HYPO 1: law students outside smoking cigarettes. The smoker tosses the cigarette over his shoulderlets say the court says that is an action of an unreasonable person. i. You can burn someone property damages- start a fire. b. HYPO 2: Lets say a cat is running by (drenched in flammable something) and the student throws the cigarette and burns the cat cat keeps running and goes to a gas stationthe truck there explodessomeone running half a mile from this building is sturck by the piece of the flying metal from the truck that just exploded. 23

a. Even if student was negligent what happened here is beyond what anyone could have foreseen i. Factual causes of this case: student throws cigarette down.

V.

Proximate Causation: a concept about limiting the liability of negligent actorsnegligent actors be held for the injuries caused by the negligent act of the D not ALL the harm that was caused to the P. a. Proximate cause issues arise when something surprising or out of the ordinary occurs strange results--- can the D argue that there was no proximate cause! 1. Maybe the D can argue that there is no proximate causewhen an aspect of the fact pattern is unusual 2. P must prove the defendants culpable conduct is the proximate cause of the plaintiffs injuries. B. LIMITATION OF LIABILITY 1. A policy determination that D should not be liable for improbable or far-reaching consequences of his act there must be a limitation on his liability. 2. The court will apply an evaluative process there is not a clear-cut rule. C. FORESEEABILITY: 1. We ask did the harm that occurred or injury, was within the realm of that d should have reasonably foreseen. In other words, foreseeability of injury. a. If it was- then we have proximate cause. b. If it was notthen no proximate cause-no liability. 2. D is liable only for those consequences of his negligence which were reasonably foreseeable at the time he acted. 3. The injury must be w/n the scope of risk created by Ds negligent conduct. 4. Foresseability is a flexible concept it should not be applied strictly. 5. Narrow View: Whether specific facts that occurred were foreseeable. a. D wants to argue this view. Make the facts complex and seem like what occurred was very bizarre and unusual. b. Can D reasonably foresee exact sequence of events in exact manner in which harm occurred? 6. Broad View: Asks if general type of harm that occurred was foreseeable. a. P wants to argue this view. Break the facts down simply and clearly. Dont focus on the details. Make the occurrence seem like a natural consequence of Ds conduct. b. Can D reasonably foresee general risk of danger posed when the product is used in its normal and natural environment? 7. Case: a. Moran v. Faberge (Cologne on Candle Case): P poured cologne on candle. P sued D for not have warning about the products highly flammable nature. Court takes General View of foreseeability. D is liable b/c it should have foreseen that its product w/ a flammable nature would be brought into a home and near a flame which could burn someone. Manufacturer should have foreseen the general field of danger it does not have to foresee exact nature of the events. Manufacturers should also anticipate uses other than which the product is intended. Dissent argues Narrow view. There was no evidence that D should have foreseen the exact use of the product. 8. HYPOS: a. Hypo: Puddle of vomit 24

Facts: Two friends, Lucy and Ethel, are having lunch and Lucy orders the seafood dish; Lucy, after eating the seafood dish feels nauseous and walks into the bathroom but instead of making it to the toilet, barfs everywhere on the bathroom; Ethel, wondering what happened to Lucy goes into the bathroom to make sure she's okay; as Ethel walked into the bathroom and not noticing the puddle of vomit, Ethel slipped on Lucy's vomit and fell suffering injuries. I: Did the negligence of the restaurant proximately cause Ethel's injuries? A: Ct's holding It was not foreseeable that the negligence of the restaurant in undercooking the seafood would cause a third person to slip and fall on the vomit of the person of to whom the seafood was served to (narrow view). A2: The intervening acts: (1) Lucy going to the bathroom; (2) Ethel going to the bathroom to check up on Lucy. Neither of these acts are unforeseeable, in fact, both of these acts are reasonable, normal and foreseeable. If then, these acts are normal/foreseeable, then the intervening acts are not so extraordinary or unforeseeable and thus are not superseding causes that break the link of causation. It is foreseeable that bad food served by the restaurant would cause someone to get sick in which the sickened person might vomit on the floor and thereby create a situation where someone would slip and possibly cause injuries to the slip (broad view).

o o

Hypo 2: Same facts as above, but Lucy falls on her own vomit and not Ethel.
o

Lucy had a pre-existing condition in which the fall aggravated and Lucy becomes paralyzed from the waist down. Should the tort feasor be liable for more damages that was unforeseeable? Yes. If the tortfeasor's negligence would normally amount to $2,000 in damages, but the injured person already had a pre-existing condition where the negligent conduct caused an aggravated injury and thus much more expensive damages tortfeasor is liable to pay those expensive damages.

D. UNFORESEEABLE CONSEQUENCES 1. D is normally liable only for foreseeable consequences of his conduct. 2. Cases a. Palsgraf: Unforeseeable plaintiff. A man is about to fall off train. Ds employee push him to help him get in. in the process, the man drops his package which had fireworks that went off. The explosion caused scale from roof at other end of platform to fall and injure P. D is not liable b/c P was not a foreseeable P. P was not in zone of danger. i. There was nothing in the situation to suggest, even to the most cautious person, that the package would explode when dropped. It was the explosion that was the proximate cause of plaintiffs injuries an act which could not have been foreseeable and therefore the railroad was neither negligent nor the proximate cause of plaintiffs injuries. . b. Little Girl Finger in the Tractor: Little girls finger is severed when she is playing around her grandfathers tractor. Court holds that D was not negligent b/c there was no proximate cause. The holes were so small that only a small child could fit finger. Tractors 25

and farm equipment are operated by adults. It was not reasonably foreseeable that a young child would be around it. c. Yun v. Ford Motor Co. (Spare Tire): Ps father tried to cross 2 lanes of heavy traffic to recover tire that fell off of Ps car. Court held that manufacturer of spare tire assembly cannot be held liable b/c Ds conduct was not reasonably foreseeable. His conduct was highly extraordinary and bizarre. 1. Intervening actor can be a third-party or intervening actor himself. In this case, the Ct determined that Mr. Chang's intervening act was unforeseeable and thus a superseding cause which broke the causal link of proximate cause. a. Broad view of foreseeablity- If a defect is present in a car that eventually causes something to fall off from a moving vehicle, then it is foreseeable that someone would be injured (the course of the events that lead to the injury do not matter, just the fact that an injury happened.) b. Narrow view of foreseeability-If a defect is present in a car that eventually causes something to fall off from a moving vehicle, is it foreseeable that a person would suicidaly run across the highway to retrieve the fallen part and thereby get injured by a third-person? c. This was the decision that the majority held stating Mr. Chang's actions were extraordinary, unforeseeable, not normal, a intervening act that became a superseding act that broke the causal link. d. Furniture Polish Case: Look at environment. Ps baby grabbed polish and drank it. P sued D for not having a warning. Court found that it was foreseeable b/c D should have foreseen that its product would be used in homes with children and children are curious. 3. Eggshell Rule: D must take P as he finds him. If P has preexisting physical or emotional condition, he cannot be denied recovery b/c his condition was unforeseeable to D. something happens that causes a bump on the head for one person and death or serious harm to another with the eggshell skull. The fact that the injury was more serious to one person than it would be to anotherdoes not let the D off the hook. If it wasnt foreseeable that there would be no injury at allthen this principle does not apply at all. a. Case i. Bartolone: D was liable in a car crash with P. P suffered minor physical injuries that prevented him from weightlifting. Weightlifting was only way for P to deal with problems and his only source of control over his life. P had a preexisting paranoid schizophrenic condition that was aggravated by the crash. P could no longer lift and suffered a break down. It was ok for jury to find proximate cause b/c D must take P as he finds him E. INTERVENING AND SUPERCEDING CAUSE: 1. Restatement of Torts second 2. If cause in fact is not present, then there is no need to inquire whether there is proximate cause. a. Intervening becomes a SUPERCEDING cause when it does break the chain of causationmakes the D not liable or NOT SUPERCEDING because the intervening act was extraordinary under the circumstances. Not every intervening act is superceding. NOT EVERY INTERVENING CAUSE IS A SUPERCEDING CAUSE. b. Highly improbable and extraordinary intervening forces are generally found superseding and preclude liability. 26

c. A person must foresee the normal consequences of his conduct, but is not responsible for extraordinarily negligent intervening acts of third persons. d. FORSEEABLE or UNFORSEEABLE if it is a foreseeable intervening causethen the D is liable. But if it is unforeseeable intervening cause then the D cannot be held liableno proximate cause. 3. Intervening Cause: Actions that occur b/n Ds negligent conduct and Ps injury and contributes to Ds conduct in producing Ps injury. a. Do not break chain of causation if D should have foreseen the event. b. Forces set in motion by Ds conduct are not intervening factors. c. Not all intervening causes are superceding causes, but usually will help Ds case by adding to the bizarre nature of the event. d. Most of the time, the court will say that there is an intervening cause BUT*** that does not take away the liability of the Dit is a matter to be decided by the jury if there is proximate cause. 4. HYPOS: a. HYPO: suppose for some reason X is angry at Y. both in law library X picks up a huge book and hits Y against the side of the head with a booksuppose Y decides to sue the publisher of the book as negligent in creating a book that was dangerous Y will obviously not win the case it is unforeseeable, and independent of the publisher. The Court would say there is no issue for the juryor could say that the publishers were not negligent the probability of this happening were very small. b. HYPO: person having steak dinner and uses the knife to get the eyelash out of his eye=-> it injures the P but no court would give this case to the jury bc what happened was unforeseeable and should be superseding in nature. Hypo: A and B were playing a game which requires one to touch the other with a lighter. A does so and B caught on fire b/c the jacket he was wearing is highly flammable. B sues the manufacturer of the jacket. Is there proximate cause? Should always start with the D what will D argue is there cause? Factual? (yes, most jackets of similar nature would not catch on fire) Proximate cause? (Tommy was an intervening actor a superseding intervening cause). D's argument-No, b/c the causal link was broken when Tommy deliberately placed a lit match against Barry's clothing during a role playing game. This intervening act from Tommy was not foreseeable and thus this intervening act from Tommy was a superseding cause (narrow view). P's argument-Yes, b/c it was foreseeable that a negligently manufactured jacket that was susceptible to flammability might brush against some igniting agent such as a cigarette ash or bon fire ash. There is no need to view it so narrowly to say that it is unforeseeable that while playing a role playing game my jacket was ignited when Tommy deliberately placed a match to kill me in a game of killer 5. Superceding Cause: A force that intervenes and breaks chain of causation. a. If D could not have foreseen the possibility that intervening cause might occur, Ds conduct will not be a negligent cause. i. If the cause was bizarre and extraordinary. b. If intervening act is negligent will not automatically make conduct superceding. But if the conduct is bizarre, it will be a superceding cause. i. i.e. HYPO about manager driving car w/o working brakes. c. If act is criminal, general rule is no liability b/c D should not be expected to foresee criminal acts. 27

i. But if the intervening conduct is the type of harm that makes original conduct negligence, it is not a superceding cause. (Hotel HYPO). 6. Cases a. Derdarian (Car Crashes into Construction Site, man gets hit and burned): A car crashed through construction site b/c driver had seizure is not a superceding cause that will relieve Ds negligence for failing to protect its workers. D should have anticipated the general threat of cars crashing into construction site and injuring workers. i. court says that this is a kind of a casethat should go to a jury bc this intervening cause was foreseeablethe automobile being driven in less than an deal manner. EVEN if the car was being driven negligently. b. Watson (Lighting Cigar causes explosion): Criminal Conduct. Ds negligence caused gas to go onto street. A man lit a match and people testified he caused explosion purpose. If this is so, D is not liable b/c should not be expected to anticipate such criminal conduct i. He was malicious!! Cannot charge railroad for the malicious acts of an intervening party that is not foreseeable. ii. App court says if you find that it was intentionalthen he liable not the RR. But if it was negligence then the RR is guilty c. Hotel HYPO: Criminal Conduct. Hotel puts cheap and insufficient locks on doors. Cannot get off the hook if someone breaks into room and injures guest b/c it should have foreseen this conduct. d. YUN: The P went after a rolling tireand got injuredthe intervening act should be considered a superseding act. i. Dissent: A jury may think that the actions of P were something that others would do. In every case, you want to characterize the facts in a certain way so that if youre in defendant side you characterize the facts as complex. i.e surely its not foreseeable that splashing cologne would be lying in a laundry room and further that two girls would use to cologne to scent a burning candle that would ultimately cause harm. Try to build your case as to make it complex if youre defendant. a. If youre plaintiff, try to keep it very simple: argue that all that matters is the general type of harm: the cologne here was used near the fire flame. 2) Foreseeable event or harm: was the thing foreseeable. Whether plaintiff was a foreseeable plaintiff, i.e palsgraf. Plaintiff was not foreseeable plaintiff. 3) Ought to be able to use the fact patterns to relate to precedent. Someone is injured, a child, by a big dangerous farm machine, d side, be able to focus on an argument that child is not a foreseeable plaintiff, they are big machines to be used by adults. Mention the case palsgraf, if they are not foreseeable then they are not liable, b/c of nature of machine. On the other hand, farms are family farms its almost inevitable that children be around these machines and machine the sprewler case: the young child who drank nail polisher. 7. DEGREE OF CUPABILITY--other cases: a. Lifeguards rescue a girl that almost drowned. A fireman nearby offered to give blocks to a nurse on the scene. The blocks would prevent the girl from going into shock. However, he forgot the instructions that there must be something between the blocks and the girls skin. As a result, the girl got burned and P sued the blocks company for failing to put a warning sign. Company argued that there is no proximate cause b/c the fireman had knowledge of the requirement of using the block. Court held: both judges agree that T is an intervening actorand failed to tell the nurse anything about how to safely use the heat blocks One judge said T had actual knowledge from a meetingfor him not to tell the nurseshows a disregard for the child harmedhe deliberately withheld information that would help the little girl. The other judge claimed that his negligence was only that he forgot something he was told orally months earlier common human error. 28

b. In the officer getting shot casewhere the radio stopped working and his backup didnt get the message that a robbery was goind on and was armed. The P was shot and harmed sues the manufacturer of the walkie talkie. The criminal who shot him was an intervening actor but the manufacturer was at fault. F. RESCUE DOCTRINE 1. Because it is foreseeable that a rescuer will come to the aid of injured person, tortfeasors owe same duty to rescuer as he does to person he puts in peril. Ds negligence to original P can be proximate cause of rescuers injury. 2. Case a. McCoy (Rescuer): P stopped to help person whose car rolled over on highway. P was struck on the highway by a hit and run vehicle. P sued manufacturer of car. Court says that if the car is defective, the jury could find that it was reasonably foreseeable that the car would roll, someone would stop to help, and would be injured by another car. i. The negligence of the automobile manufacturer was the proximate cause for P's injuries. ii. The Ct determined that the rescue doctrine does apply for products liability cases why couldn't a rescuer recover for damages that was proximately caused by defect of a product which was negligently manufactured? 1. The Ct held that it was foreseeable that a defect in an automobile which would result in an accident would invite rescuers to come and thus any injury suffered by the rescuer entitles him to recover for his injury Make arguments for both plaintiff and defendants side. Defenses to Negligence: Plaintiffs Conduct A. CONTRIBUTORY NEGLIGENCE 1. If P is negligent and his negligence was a proximate cause of his injuries, he is totally barred from recovery. 2. Burden to prove Ps negligence is on D. 3. All or Nothing Rule. Majority of states have alleviated the harshness of this rule by switching to comparative negligence system. Vast majority have abandoned contributory negligence and adopted comparative neg. B. COMPARATIVE NEGLIGENCE 1. Divides degree of fault b/n P and D. Jury assigns a percentage of the fault to each side. Ps recovery is reduced by a proportion equal to the ratio b/n his own negligence and total negligence contributing to the accident. i) If jury find p and d acted negligently, then comparative negligence kicks in. ii) Jurys are asked to assign percentages of negligence that equal 100. 2. Pure Comparative Negligence: P may recover whatever % of the total damages are not attributed to his negligence even if his fault is greater than Ds. a. i.e. if P was 90% at fault, he can recover 10% of the damages b. Assume that D's negligence=75% and P's negligence=25%; the total amount of damages is $100,000; P will recover $75,000 (.75 x 100,000). i. P has to compensate for the percentage negligence of his part. If p was 15percent negligent then he recovers 85percent. ii. Note: New York follows the pure form. 3. Modified 50% Form [Not Greater Than]: P may recover only if his negligence is not greater than Ds. If his negligence is not greater than 50%, he can recover. a. i.e. if P was 50% at fault, he can recover 50% of total damages proportional amount can be recovered! b. If P is greater than 50% at fault, P cannot recover. If P is less than 50%, he can recover. c. 29

VI.

4. Modified 49% Form [Not as Great As]: P may recover only if his negligence is not as great as Ds. If his negligence is not greater than 49%, he can recover but if he is 50% or greater, he cannot recover! a. i.e. if P was 49% at fault, he can recover 51% of total damages. b. i.e. if P was 50% at fault, he cannot recover. C. ASSUMPTION OF RISK: is a term of art in negligence law that denotes acting with knowledge of a risk( a defense) 1. Express assumption of riskparties will contractenter into an agreement where one party says that--I recognize there is a risk in this activity but I agree that t he other party will not be liable to me if I am harmed. a. One party has promised to not enter into legal proceedings against the other look at the gym case seigneur v. national fitness pg 601. o Exculpatory clause: whether the provision says it expressly that the other party will not be liable if anything goes wrong and also making it clear that the company is not responsible for any consequences including negligence. o 3 exceptions have been identified where the public interest will render an exculpatory clause unenforceable. 1) When the party protected by the clause intentionally causes harm or engages in acts of reckless, wanton or gross negligence. 2) When the bargaining power of one party to the contract is so grossly unequal so as to put that party at the mercy of the others negligence. To possess a decisive bargaining advantage over a customer, the service offered must usually be deemed essential in nature. Unlike a fitness center. 3) When the transaction involves the public interest. 2. Implied Assumption of Risk: Focus on this! a. If D can show that P assumed the risk P is barred from recovery. b. Subjective standard: It has to be proven that P HAD knowledge of the risk NOT should have known or a reasonable person would have known. i. Today, the concept of implied assumption of risk has merged w/contributory negligence. 1. A form of unreasonable conduct by P, graded on a comparative scale. 2. How does D show that P assumed the risk? Three (3) Ways: a. (1) Knowledge of the risk P needs to have actual knowledge of the risk subjective standard that a jury would need to decide. Plaintiff knows of the danger. b. (2) Voluntary decision to encounter a known or risk danger. c. (3) Unreasonable decision to encounter a known risk or danger. 3. P has assumed the risk of harm (must have knowledge of the facts and appreciate the danger of those facts) if he has actual knowledge of the risk and voluntarily encounters the risk. 4. D can not use this as a defense if P acted reasonably under the circumstances. a. i.e. P goes into a burning house to save a child. 5. Three Elements a. P had actual knowledge of the risk. Subjectively know. He must know. 30

b. P voluntarily encounters the risk. c. The decision to encounter the risk was unreasonable. 6. Traditionally, P is completely barred from recovery where he has assumed the risk. 7. However, today, courts have combined assumption of risk principles w/ comparative negligence. a. It is not an automatic bar to recovery. b. It is one form of contributory negligence. It is one form of unreasonable conduct by P. 8. Why differentiate b/n Assumption of Risk and Contributory Negligence? a. If Ds attorney can show that Ps voluntarily and unreasonably chose to encounter the risk, the jury will probably return with a greater % of fault attributable to P. Hypo: I went home. My house is on fire. My hat is burning, 20dollars. So I run into building to rescue my hat= unreasonable risk for a hat. As oppose to going into a burning home to rescue his child = reasonable decision to enter into a burning home, voluntarily, knowing the risk or danger. D. CASES 1. Forklift HYPO: Assumption of Risk. P was operating a forklift that had a guard. Ps employer demanded all employees use the lift w/o a guard. P can argue that it was not unreasonable and not voluntary conduct so no assumption of risk. 2. DAVIES v. MANN: 1842 case (contributory negligence) Donkey off to the side of the road, grazing. The Ds wagon of three horses ran into the donkey, knocked it down and ran over it. the D might have avoided injuring the animal and did not. He is liable for the consequences of his negligence though the animal may have been improperly there. 3. McIntyre (P is drunk, D was drunk and driving faster than speed limit): Court decides to adopt a comparative negligence system 49%. Jury must assess fault. It is not fair to make a negligent P bear all the responsibility even if his fault is minor when compared to D. 4. Butterfield (Horse trips on a Pole): Illustrates Old Contributory Negligence Rule. D left pole in road and Ps horse hit it. D argues P was driving fast. Court finds P was negligent and is barred from recovery. ABSOLUTE BAR P claims D is negligent in leaving the pole in the highway and D claims that P was negligent in that he was riding too fast and not being careful If jury finds that both were negligentthen P is a complete bar from recovery. 5. Blackburn v. Dorta: Assumption of risk is no longer a bar to recovery. It is one form of contributory negligence for the courts to consider in a comparative negligence scheme. 6. Seigneur V. Natl Fitness Ins, Inc. (express assumption of risk). P hurt while undergoing an initial evaluation at a fitness club owned by D. she had signed membership contract (which stated that D was not liable for harm) and had disclosed that she had lower back problems. Court held that she signed the K she went to the gym she knew the risks; she gave up her right to fight it out later. There were other gyms she chose this one. There is no special legal relationship and no overriding public interest which demands that this K provision, voluntarily entered into by competent parties, should be rendered ineffectual. a. Exception: If D engaged in intentional or wanton injurious behavior or grossly negligent behavior, P may circumvent around the clause and recover. i. If there is a public policy incentive, Cts will not enforce exculpatory provisions however, health clubs were not within the scope of important public policy (health clubs are good for you, but is not necessary for the function of society). 7. Rush v. Commercial Realty (Implied assumption of risk--Women falls through floor of Outdoor Toilet): P lived in apartment owned by D and only had an outdoor toilet. She went to use and it fell through the floor. A person does not think they will fall through the ground when they go to use the bathroom. The landlord should have properly maintained the floor. Court held that P did not assume the risk b/c she did not voluntarily and unreasonably assume the risk she had no other choice but to use the outhouse. 31

8. House Burning Down HYPO: P arrives to her house and a fire truck is driving bythe Ps house is on fireat trialP can prove that Ds negligence caused the firePs 3 year old is in the house and runs into the house to save her kids life- and gets injured as result of being in the burning house i. Did the P have knowledge? Yes ii. Was it voluntary? Yes iii. Was it unreasonable? Probably notto go into the house to save her child from the fire most people would not see this as unreasonable. iv. But it would be unreasonable to run in to save a hat. Most jurisdictions require all three elements***for assumption of risk. 9. Moran v. Fabrege: if D decided to assert that Randy (third-party) was contributorily negligent, total damages against D may be lessened. VII. Defenses to Negligence: Immunities and Statute of Limitations A. Taken too long to bring a cause of action in which a state's statute of limitations has run and P is timebarred. 1. Limits the amount of time P has to file a lawsuit based on when the claim arose. 2. In most cases, it is clear when the claim arose the date there has been an actual injury to Ps body or his property. 3. But some jurisdictions apply a time of discovery rule rather than the time of damage rule to certain types of situations when it is fair and just to do so. 4. Discovery Rule: The cause of action arises when the claimant knew or reasonably should have known of the alleged wrongs (tort). 5. Statute of Repose: Deals mainly w/product liability issues where a product has been sold and in the possession of a consumer for so long that the consumer is barred from bringing an action against the manufacturer. The time accrues from the time of the sale of the product 6. Cases a. Teeters v. Currey i. P had operation from D to avoid future pregnancies. SOL ran and 3 years later P had a baby w/ sever complications as a result of the surgery. Court holds that SOL does not bar Ps claim. The claim arose when people discovered the injury or should have reasonably discovered the injury. B. IMMUNITY 1. Concept: Law has decided for policy reasons that certain class of Ds should not be subject to suit. a. Workmens Compensation System: If employee is injured at work, he does not have to show fault on employer to recover. But recovery is limited and employer is immune from lawsuit. (workers comp) 2. Trend: Today we give more rights to injured party were are a more litigious society and more concerned about consumer protection. Trend is moving away from immunities. 3. State and Local Government Immunity: Most courts have abolished state and local government immunity. Worker's Compensation: One immunity that is not dying out is employer's immunity i.e. worker's compensation from tort actions. Non-fault compensation system; P does not have to show culpability of employer to recover. a. This is a state-imposed bargain where both worker and state benefits: i. What does employee get? 32

1. Right to recovery-The worker will always get recovery for his injuries (essentially, if you're injured, you recover). 2. Right to legal action barred-However, worker is barred from bringing suit to his employer. a. Note: injured employee can still bring suit against a 3rd party; worker's compensation provides immunity only to direct employer. b. Important: If P receives worker's compensation and P sues a 3rd party and also recoverP may have to give worker's compensation back to employer if P prevails in his suit against the third party and receives recovery. ii. What does employer get? 1. Employer must pay claims-Must always pay damages incurred by employee's injuries. 4. Employer is immune from legal action-Injured employees cannot bring suit against employer a. Ayala (Shredding Machine): Ps arm was caught in shredding machine at school. Arm was amputated and P sues school. P can maintain negligence action government immunity is abolished. i. They had the right to try the case. if the court did not change to abolish the schools immunity, the ayalas will not have the chance to sue the school. b. HYPO IMMUNE TORTFEASORS. i. A is the employerB is the manufacturer employee (P) got hurt in the factory the guard that usually keeps the area small so no ones hand gets caughttaken off for the machine to work better. ii. Can make a claim for workers compensation benefits. 1. Grants the employer immunity from suits by employeeso the P can go after the manufacturer. There was an intervening causethe conduct of the employer to remove the guard intervening superceding cause. So the manufacturerif hes going to get sued in Tort then he will bring in the employer!! a. Most courts held that B should not be able to assert a right of contribution against A--? A is immune and since the legislator decided that A is directly immune from suit by P then the court will imply that to mean between B and A. b. If B could bring in Aas a third party and the jury could assign percentages to themlets say jury says 60% is the fault of the B and 40% to A. c. B has to pay it all A is immune. 5. Governmental Immunity: abolished immunity; a. Procedures a person seeking recovery must present his claim to the appropriate federal agency before instituting suit. i. Claim is made, it must be filed in the US Dc of the district where the P resides. ii. The suit will be tried by a judge not a jury iii. The Ps attorneys contingent fee is subject to express regulation and imposition of a higher fee constitutes a federal crime. Note 3 pg 654. 6. United States Government Immunity: after 1946, Federal government may be liable for tort acts under Federal Tort Claims Act (FTCA), where the government has waived its immunity w/ regards to several torts. a. But government cannot be sued for intentional torts. 33

b. Government cannot be sued for a tort arising out of a discretionary activity of an employee. i. Deuser (Park Rangers) 1. State park rangers arrested man at fair and released him at some parking lot, didnt want to deal w/ booking him, and he was killed walking home. Court holds that government is immune from suit here b/c releasing P was a discretionary function reserved to the rangers judgment. The conduct was protected b/c it was grounded in the social, economic, or political goals of Rangers enforcement guidelines. Dismissed by trial judge. Family members appeal. Trial judge decided that it comes with discretionary function. Appellate court rule trial court was correct the discretionary function as applied by court is broad. Two things inquiry: Thus there is no law suit against federal govt b/c park rangers acted within the discretionary given to them. Were their actions discretionary, was it a matter a choice by park rangers? Which requires an element of judgment. Whether the judgment is of the kind that the discretionary function exception was designed to shield the conduct must be grounded in the social, economic or political goals. REMEMBER: EXCEPTION TO INTENTIONAL TORT THAT ARE NOT COVERED UNDER THE ACT, WHICH MEANS ARE STILL UNDER IMMUNITY. WERE NOW SAYING GOVT CAN BE SUED EXCEPT THE EXCEPTION OF INTENTIONAL TORTS AND OTHERS. FEDERAL TORTS CLAIMS ACT= REVIEW. c. Note 5 note c pg 656, federal tort claims act does not apply to any military claim or activity. If its battery or other intential torts on note b pg 656 state why battery, assault cannot be pursued under federt tort claims act against govt. VIII. Vicarious Liability: (still a negligence case) (party b will be held for the negligence for his employee) Employer employee situations give rise to most vicarious liability casesA is the employee and B is the employer.--> A is negligent and as a result the B is held by the P for the negligence of the A. A. GENERAL CONCEPT 1. In some situations, tortuous act of one person may be imputed to another b/c of a special relationship. a. A is negligentb is notc is harmedb is held responsible bc B has a relationship with Aeven though B had no part in what happened. B goes to sue C for the harm that came to him as a result of the situationbut B is barred from recovery b/c of As negligenceas if he had been negligent himself. IMPUTED CONTRIBUTORY LIABILITY. 2. A special relationship makes A answer for Bs negligence, even though A was not negligent. a. B, in Cs action against him, becomes liable as a Defendant for Cs injuries, to the same extent as if he had been negligent himself i.e. he has to take the burden of the accidentIMPUTED NEGLIGENCE B. RESPONDEAT SUPERIOR (let the superior respond) so that the injured party is not left without compensation. Let the higher up respond for damages general reference to the principle that an employer can be held liable vicariously for the negligent conduct of the employee. 1. Applies to employer employee relationship. a. The employer is held responsible for his employees negligence if the employee commits a tort while acting in the scope of his employment. i. Negligent act of the driver may not be the negligent act of the employer or company the company is liable for that negligence. ii. That is not considered a negligent act of the employerhowever if the employee was acting within the scopethe company is still liable. 34

iii. If the company itself was negligent(i.e.) employee is negligent but the employer is negligent in how they went about hiring the employee was in the cause of the injury to another party if you can show negligence on the part of the company itselfyou dont need vicarious liability. If youre driving a car and in scope of employment, employer can be held liable. Employer cannot avoid liability by adopting rules that forbids the kind of negligence that occurred. 2. Ps apply this to find D w/ deep pockets. 3. Scope of Employment a. W/N Scope If employee is acting w/ an intent to further employers business purpose. b. Coming and Going Rule: Employee is not acting w/n scope during ordinary commute to and from work. c. Hypo: A worked for insurance company. His bosses urge him to go drinking with other colleagues as much as possible. One night he did and when he was coming back got into an accident. He testified that one of the reasons he went to bar was b/c his boss told him to socialize. Company argued that he was just driving home. Jury found for plaintiff, that the driver of the car was in scope of employment. He was driving back from a place the supervisor told him to go. Court said that was sufficient to make it a situation that falls outside from the coming going rule. i. Exception: When employee endangers others w/ a risk arising from work. Can employer foresee the risk arising from act? 1. Lets say the employee is running some errands for the employer Freddie is picking something up for the employerso that employee wasnt just driving home he was still within the scope of employment. ii. Limitations: 1. Courts may hold that the acts were such a deviation that it cannot be considered within the scope of employment. 2. Did the driver engaged in a detour? Or doing something personal? 3. If owner restricts employees from speeding and they do and cause a crash. Ct agreed that employer cannot safeguard itself against liability by setting rules for the employees to follow. iii. 1. Bussard (Pesticide Case): Employer has office sprayed w/ pesticide. Employee breathes in fumes and becomes ill. On her commute home, she rear ends P. P sues employer. Court holds that case goes to trial on respondeat superior and jury can find that employee endangered others w/ a risk that arose from work and employer could foresee the risk. 2. The coming and going rule does not apply when something occurs at works wthat impairs the employees ability to drive back home. 3. its much harder if someone is suing for battery or any intentional tort. The court still asks whether they were acting in the scope of employment. In westernunion case, the court held it was a personal behavior not within the scope of employment. In fisher, the company was held liable b/c a managerial person carrying out company policy. 4. HYPO: Employer gets drunk at work party. Injures someone on drive home. Employer is vicariously liable. The employer can obtain indemnity from the employee the company is not fund to be negligentbut is being held liable vicariously.

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d. Slight Deviation: If employee makes a slight, foreseeable deviation from employment duties for a personal errand, he is still w/n scope of employment. But if deviation is substantial and unforeseeable, employer is not vicariously liable. i. OShea (Football Ticket Delivery Employee was driving from his office to another office to deliver football tickets to company managers. He turns off road to get estimate on his car and gets into a crash. Court holds that a jury could find employer vicariously liable b/c it was a slight deviation from employees employment duties. ii. incidental things that have to be done for personal reasons such as going to the bathroom will still be deemed to be in scope of employment. if he went to get gas= still within scope. If he went to get gas, and went to bathroom still within scope. He suddenly sees a sign of a jewelry store, he decides to drive a quarter of a block to get jewelry. He gets jewelry then gets into accident. He then is not in scope of business. Hypo. A truck driver is giving an assignment to drive good from point a to point b. he then thinks of aunt shawty and she only lives 40miles of the course of the highway. He does so and on his way back he has a collision= this equals to a frolic. He has gone some distance off his route. Enough of a departure off route to say he is not on scope of highway. Lots of cases are given to juries to decide whether it is reasonable for the detour or frolic. 1. HYPO OF OSHEA: Lets say he goes a mile off the road to get some dinnerif he has an accident nowcoming backhe could very well still be in the scope of employment. a. Court says slight deviations do not lead to a finding that the driver was outside the scope of employment. Court said a jury could properly find the employee was in the scope of employment. iii. Truck Delivery HYPO: Driver does not take direct route from point A to point B and goes and visits his uncle who lives 50 miles out of the way. Driver gets into crash. Employer is not liable b/c driver substantially deviated and the deviation was unforeseeable. iv. Insurance Conference HYPO: Employer was at conference and encouraged to mix w/ experts. He goes to bar to look for experts, sees theyre not there, drives back to hotel. It would be reasonable for jury to find that he was acting w/n scope of employment b/c he may have been acting to advance the position of the corporation.

C. INDEPENDENT CONTRACTOR 1. General Rule: One who hires an independent contractor is not generally liable for torts of that person b/c the contractor is not subject to his supervision, dominion, or control. a. Classic hypo of independent contractor: adding a room to a house, prof and his wife. They hired a company. The company was doing work for prof and at the end prof will pay them. They are not profs employees and he doesnt control them. They are independent contractors. If one of the workers has an accident when getting a paint, can prof be sued. No he is not their employer. He gives us employer question. b. 1. No questions about independent contractors. c. Independent contractors are not liable for vicarious liability. d. MURELL v. GOERTZ (Newspaper Deliver Case): Delivery boy punches customer. Newspaper not vicariously liable b/c the boy was hired through another independent deliverer. Newspaper had no control over the boy, no contacts w/ boy and cannot be held vicariously liable for his actions. 36

i. Can the newspaper be successfully sued for the acts of employee he is an independent contractor 1. 669 distinction between a servant(old fashion way of saying employee) or employee and a independent contractoris said that the IC does his or her own workwithout control of anyone elseso whoever hired him or herdoes not have control over that person in how and when they do the work. a. Exceptions where an independent contractor will not insulate the party choosing the independent contractor from vicarious liability. i. Nondelegable duties ii. Apparent Authority iii. Inherently or instrinsically danagerous activities (collateral negligence) iv. Illegal Activities. 2. Strict liability in tort: for policy reason it takes the position that you can sue any seller of the allegedly defective product. If plaintiff can prove that the product is defective any seller can be held liable. Heres the point: if you can show that the product is defective you can win against the retailer under strict liability in tort not in negligence. This is a form of vicarious liability. Courts have recognized that when retailers are held liable for a defective product, the retailer can be held liable, vicarious liable = is held liable for policy reasons. 3. Exception: Non-Delegable Duty. There are some duties that are so important that the person owing them will not be allowed to delegate them to anyone. The person can delegate the work to someone else but cannot shift the duty to act reasonably or liability for negligence. a. Maloney v. Rath (Bad Brakes Case): D hired a X (mechanic) to fix brakes. He does work negligently and D is in accident caused by bad brakes. Ds duty to keep her brakes in good working order was so important and could not be delegated. Thus, she could not delegate the duty act reasonably and she is liable. i. Her duty was to exercise reasonable careand maintain the brakes on the car. Her duty is to act reasonably in regards to maintaining the car. She has certain responsibilities under the law (of cali) and she has delegated those responsibilities to Melvin the mechanic. Court says its such an important duty that you cant delegate it to others. Court says she is liable (vicariously) for the negligence of the mechanic. If this duty is breachedbrakes on an automobilecan cause some very serious results. This duty falls upon the ownerit cannot be delegated to others! The person that was negligent was an independent contractor that did the work for her CAN SHE SUE MECHANIC? Yes! B.c he was the one who was actually negligent. ii. Notes in class: California supreme court is considering a case where the car driven by x is involved in accident b/c of the bad brakes. California supreme court considers a statutory provision which said that the brakes should be maintained in good working order. This is not strict liability. Its a negligence based standard. If brakes are not in good working order b/c negligence of the owner then he is liable. The trial court said in this case there was no negligence. She took the car to the auto mechanic, the evidence shows that the auto mechanic was negligent in repair the car. The owner was not negligent. California supreme court held that she can be liable although she was not negligent b/c of the doctrine nondelegable duty: is in certain situations where the court says some duties are so important that you cannot delegate the duty to another. It is so important that the owner of the car has a duty to refrain from negligence in regards to the brakes, she delegated the brakes to the auto mechanic did the work negligently, but the court said she can be held liable she had a nondelegable duty to act non negligent in 37

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regards of the brakes. She can be held liable b/c of the negligence of the mechanic worker who was an independent worker. 1. A gave responsibility to b to do the work. Because she cannot get rid of the duty if the b acts negligent then a can held liable. 2. If he gives me a non delegable duty he will say so. Joint Tortfeasors B. JOINT AND SEVERAL LIABILITY( multiple tortfeasors) situations where two or more tortfeasors. Contribution: a sharing of the liability. Two parties both acted negligently and the act contributed to the injury, A and B as defendants, they will split the damages accordingly. 1. Traditional Rule: If more than one person caused Ps harm, and the harm is indivisible, each D is held separately liable for the entire harm. (culpable conduct) 2. P can go after both or one of tortfeasoreach is jointly and severaly liableif one cannot paythe other gets screwed. If both could paythey would pay their percentage for the damages not all. Ps like the concept of joint and several liabilitythe Ds would bear the risknot the P. The trend of the law seems to be towards ABOLISHING joint and several liability. a. The purpose of contribution is to make sure one of the tortfeasors doesnt get stuck paying for more than his/her share. 3. Consequence: P may sue and collect the entire amount from any one he chooses. If one D is unable to pay, other D bears the risk of paying P for entire loss. 4. Modern Trend: Many courts are moving away from joint and several liability based on principles of comparative negligence. Jury allocates to each party a % of contribution to the harm and each D is not liable for more than their %. This eliminates the need for indemnity and contribution. a. Ex. C suffers $100,000 harm as a result of A and Bs negligence. Jury finds A is responsible for 60% of the fault, B is 30%, and P is 10%. A is responsible only for $60,0000 and B is responsible only for $30,000. B. INDEMNITY: one hundred percent shifting of liability. Ex: 1. Employer could seek indemnity from employee. A retailer can sue the manufacturer the indemnity. A is sued for negligence for an accident that she had no way of preventing because b the mechanic negligently fixed her break. A is sued but can sue b for indemnity. Employer can be held vicariously liable due to his employees negligence. If the retailer was held liable for some negligence of a product. The retailer can sue the manufacturer for indemnity. indemnity:100% shifting and you can add the third party or after case sue the manufacturer. Complete reimbursement. Manufacturer indemnified the retailer. The retailer seeks indemnity from the manufacturer. 2. Allows a non-culpable party who is held vicariously liable to shift 100% of the loss to the culpable party. a. Arise out of a general sense of fairness or b/c of a great degree of culpability b/n defendants. b. Usually only applies to vicarious liability situations. 3. Employment Ex. a. EE is culpable and ER is vicariously liable b/c of EEs negligence. In theory, EE should indemnify ER. But, ERs rarely assert indemnity claims against EEs. 4. Strict Liability Defect a. P buys lawnmower from a retailer and is badly injured b/c of a design defect. P sues retailer and jury finds retailer liable. Retailer can assert a claim for indemnity against the manufacturer b/c it is the culpable party. C. CONTRIBUTION: 38

1. Hypo: suppose a and b driving negligently. The cars collide. Both fly up in the sky and one cars lands and injures a person. at trial they will both be found guilty. A and b. we have 2 tortfeasors. 2 negligent acts. a. Joint and several liability: if more than one tortfeasor contributed to one negligent claim, they can be separately or jointly liable. Under joint liability, if damages are 100k then P can choose which negligent actor pays the whole amount. For instance, A and B jointly hit C. C sued for 100k and had option to choose who would pay the whole amount. If suppose B is chosen to pay 100k, then A would be responsible to repay B 50k. If they both have assets and money then the plaintiff can collect from both tortfeasors. More recently, many jurisdictions have adopted the comparative negligence and apply percentages. When a jury finds 2 parties negligent, it assigns percentage of each partys negligence. Therefore, if A, B, C all contributed to the negligence action and a jury finds each party respectively liable for a certain amount. If there is no joint liability, there will be no need for contribution anymore b/c each negligent party will only pay its own portion. 2. Where 2 or more Ds are jointly and severally liable, P may obtain a judgment against one of them for the entire amount. That D then has right to contribution from other Ds. 3. Historically, courts apportioned the loss among parties by using a Pro Rata method. a. Ex. 2 tortfeasors each pay 50%. 3 tortfeasors each pay 33%. 4. However, today most courts apply a Comparative method to apportion the loss. a. Each tortfeasors is responsible for paying the percentage of total damages in proportion to its percentage of total fault. The jury will determine % of fault to allocate to each D and attribute a % of damages based on the % of fault. i. D can recover no more than the amount paid to P in excess of Ds comparative share in the responsibility. b. Ex. P sues D1 and D2. Ps damages = $100,000. D1 is 30% responsible and D2 is 70% responsible. P sues D1 who pays $100,000. D1 permitted to recover $70,000 form D2. D. APPORTIONING THE LOSS OF 1 INJURY 1. Knell (Cab collides with car): L was passenger in Ks car. Car collides w/ car driven by F. L sues F. This was a joint and several liability system. Jury found F and K were both negligent. F can receive contribution from K even though K was not a party to the original lawsuit. a. Driver one sought contribution from driver twowas successful in proving the contributory negligence driver two is obligated to pay a portion of the 100,000 i. In the past percentage is determined by a pro rata basis.based on how many tortfeasors were involvedin this case-50% 50%--> Each would have had to pay 50,000. ii. NOW where there is a right to contributionthe percentages are based n the juries determination of percentagesof liability of each tortfeasor. Breaks down to 70% and 30%--> suppose one of the two cant pay ithas no assets under traditional rule of joint or several liabilityeach is obligated to pay the 100000 and seek contribution..so if one cant paythen he is responsible for the whole 100000. a. Driver one makes claim against dirver two of also being negligent if the P recovers from one driver one has paid more than his sharedriver one may seek indemnity from driver two 2. Yellow Cab v. Dreslin (Wife sues other driver): D cannot collect contribution from an immune tortfeasor. Non-immune tortfeasors may not seek contribution or indemnity from those who are immune. Ps husband was driving and collides w/ Ds car. Jury found that Ps injures 39

were caused by concurrent negligence of her husband and D. P can collect entire amount from D but D cannot seek contribution from Ps husband b/c the injured party did not have a cause of action against her husband. a. Immune tortfeasor. Worker get injured in a workplace. He claims that the injury was because of the faulty design of the machine he was working on. Lets suppose there was a guard in the machine he was working on, the employee takes the guard off and as a result gets injured. Why doesnt an employer file a tort suit against employer. BECAUSE the employer is immuned from any tort cases, employees relief would be through workers compensation. However, ps lawyer knows you can get a lot more money if the lawsuit deals with a tort so they can pursue a tort action against the manufacturer of the machine. The employer immunity does not carry to a third party. Therefore ps lawyer can sue the manufacturer. b. Employee sues manufacturer. Very often the manufacture wants to make a claim against the employer, the claim will be contribution or if there is no joint several liability, the manufacturer can claim employer is another tortfeasor so they can share the damages. Suppose the jury finds the manufacturer is 40percent at fault, and employee 60 percent at fault, most court have held, employee gets works comp benefits from employer but cannot file a lawsuit against employer. But can file a lawsuit against third party, many courts have held that the manufacture cannot/ it is barred from suing the employer, the employer has paid his share. The immunity from suit from the legislature of the workers comp, so the employer is not liable. Therefore if it is found that the manufacture was liable for a tort it would pay all of the expenses. 3. Slocum (Man backs out of driveway and hits neighbors son): D2 settled b/f trial. D1 wants to seek contribution from D2. Court holds that he cannot do so. Other courts allow D to recover contribution from a settling D. 4. Lawnmower HYPO: Ps foot slips under lawnmower and is injured. He sues retailer for the design defect under a strict liability theory. Retailer can seek indemnification against manufacturer b/c manufacturer was the culpable party. Usually retailer would file a 3rd party complaint against manufacturer and bring him into the action. E. APPORTIONING THE LOSS OF MORE THAN ONE HARM: note 2 pg 398: several dogs kill sheep that belong to plaintiff. p can recover only by the owner of the dog that killed the sheep. If he cannot prove which dog killed the sheep then he cannot recover. Each owner may be held liable for a proportionate to the death of the sheep. review note 2 on pg 398) bcde are example of court that seems to be struggling to find their own stance on this topic. F. 1. Cases a. Bruckman (2 separate crashes): P is injured in a crash by D. A year later he is injured in another crash. P sues D for injuries. Court held that D is not liable for total injuries. P can only recover for injuries P proximately caused. P has burden of showing every element of the case, including apportionment. b. Michie (Corporate Polluters): 37 Ps injured by pollutants of 7 Ds. If jury cannot apportion harm, injuries will be looked at as indivisible. Ds will then have burden of showing what portion of damages are attributable to them (apportionment). Homeowner alleged that the Michigan factories emitted pollutants which reached their property. There is no way to establish which defendants pollutants reached defendants homes. The courts held that they will treat this as indivisible injury if the p cannot establish the tortfeasor. An indivisible injury treats all defendants liable unless defendants can establish otherwise. Essentially the burden of proof shifts to defendant. 40

2point: pg 383: knell v. Feltman, 2vehicles collide, one of the drivers was knell the other driver was an employee of taxicab company owned by mr feltman. p sued feltman and feltman filed a third party action to knell. So now that everyone is in the lawsuit, the damages the jury found was 10k. feltman pays 10k, he is entitled from knell half of that amount, under joint and several liability. Today of course, it will be decided by juries by percentages. HERE IS THE POINT: there couldl be defendant, plaintiff could have sued 3 people, mr employee, feltman, knell.3 defendants in this case. why dont we have 3defendants? The answer is feltman and the employee are not two different tortfeasors, they were only two actors in this case. mr feltman comes only through vicarious liability, the principle respondent superiat. You bundle them together as if they are one tortfeasor. As between the employee and feltman, feltman has a right on employee for INDEMNITY. c. Note 2 authors of the casebook saynotice the opinions allusion to the marauding dogs and the helpless sheep? The problem was how do we decide which sheep was killed by which dogP can recover for the sheeps death that they can prove was killed by a particular dog. Unfair b/c in almost all cases the owner of the sheep cannot prove which dog killed which sheepall owners escape liabilityand the owner of the sheep that suffered the loss is screwed. The court saideach owner may be divided into parts depending on the amount of. Each owner is liable for the amount of sheep the owner can prove its dog did not kill..burden on the D. The dogs acted in concert multiple tortfeasors that acted as oneThis was an indivisible result since the dogs may have combined on individual sheep.since any sheep may have been attacked by numerous dogs at one time. d. Hypo: I am walking down the street. Two people. From each direction. One hits me with a brick and then the other throws a knife. Im going to the hospital. It should be clear there is no reason to add up all the damages. G. ENHANCEMENT OF INJURY 1. When an injury is divisible, D should have to pay only for the enhancement of the injury the portion of the injury suffered b/c of Ds negligence. a. Enhancement: The amount by which the harm was aggravated by Ds negligence. 2. Cases a. Dillon (Bridge Electrocution): Boy starts to fall from bridge and grabs wire operated by D and is electrocuted. D is only liable for its enhancement of Ps injury. If jury finds that P would have been killed by the fall, D is only liable for the amount P suffered on top of this. If jury finds P would have fallen and been severely injured, jury is to measure the value of his life from this condition. i. We are responsible for the increase of the harmthe only way to be fair to D is to instruct the juryhow much would he have been injured had he never reached for the wire?! b. Escalator HYPO: P gets stuck in escalator and sues D for not responding fast enough. Fingers caught for 45 seconds. Jury finds that if D acted reasonably, fingers would be caught for 30 seconds. Instead, b/c D did not act reasonably, Ps fingers were caught for 15 seconds. D should argue that injury is divided into 2 parts and is not liable for entire injury. D should only be held liable for the aggravation of Ps injury as a result of its negligence the enhancement of the injury as a result of Ds negligence. 3. HYPO: akira and victor attack surratt akira throws brick at headvictor throws knife at leg TWO injuriestwo harmscannot just go after one for the entire harm. X. Duty of Care 41

A. Requires D to behave toward P w/ same degree of care that a reasonable person would exercise in the same or similar circumstances. B. We have a duty to act reasonablehowever, there are some situations in which the law sayswe dont have a duty with regards to this person or situation. 1. Exceptions: Suppose you come across another person who is in need of helpyou are out in a rural area and see a motorcycle has gone off the roadand the driver is lying there in need of medical assistanceand we assume that without risk or costyou can give aid that will make sure that person gets some sort of medical care. Alis notes: duty, breach, causation: factual/ proximate, injury/harm Always assume there is a duty to act reasonably to the safety of others. A person drowning, screams for help, youre the only person that can hear him. There happens to be a life safety tire that you can toss it to the person whos drowning, however, you decide you do not want to get involved. The law of tort allows you to walk away as far as torts is concerned. You do not have any duty to save or aid anyone who is in trouble, if had nothing to do with him being in that situation. Even if it is not dangerous. Reasonable person is not a heroic person, is according the reasonable person standards would act reasonably. You dont have to risk your life b/c a reasonable person would not risk their life. When you are negligent in creating the negligence, then you have the duty to reasonably act to help the person. If you hit a cow on road you have a duty to remove it from the road so others will not get hurt. If the instrumentality is under your control and caused harm to one, you have the duty to aid. C. FAILURE TO ACT 1. Generally, person has no duty to act affirmatively to rescue another party and cannot be held liable for failing to act. 2. Exceptions a. Special Relationship b/n P and D. one party has a duty to aid. i. i.e. employee employer relationship. ii. Business and invitees. iii. Husband and wife. iv. Parent and child v. Undertaking: if you started to help someone you have to complete the aid and cannot change your mind. You undertook to help. A picks up B who needs to go to hospital. 5miles later A changes his mind and refuses to complete the trip. A is liable. vi. Hegel (Sleazy College Girl): Parents sue college b/c she becomes associated w/ criminals and does drugs. Court held that college did not have a duty to monitor lives of students and monitor comings and goings. 1. A university does have a reasonable duty to keep the students safe in the premises. vii. Duarte (Rape and Murder in Dorm): Court held that there was a duty to act reasonably to keep students safe and the jury could properly find that such a duty means the school should provide adequate security in dorms. 1. The location. It was in the campus. b. Special Relationship b/n D and 3rd Party. i. Ds Husband Abuses Young Girls: Court held that a wife of a child molester owes a duty to victims if she had actual or constructive knowledge. D was in special relationship to husband to control his actions. Not a professional obligation. Its husband and wife. Man assaulted the young daughters of his neighbor. Parents sued the sexual molester and his wife. Does the wife have a duty. The court said that the wife does a duty. Unlike the robbery of the convenience store hypo, this case the court said the wife should be liable b/c of her failure. The court comes to a conclusion that there is 42

a duty if the wife knew or should have known sexual abuse was happening or would happen, then she had a duty to take a reasonable action to respond to that. ii. Tarasoff (Psychiatrists): Patient tells Dr. he is going to kill someone. Dr. owed duty to victim to warn of the threat. Psychologist finds out from a patient that he wants to kill his girlfriend. 2 months later the patient kills her. Her parents file lawsuit against the psychotherapists. The court said they didnt have any duty to do anything to stop it but the question is whether they have a duty to warn. This court concludes that at least the case can proceed on the theory that they had a duty to warn. They had a duty to warn b/c they had the relationship the psychoterapst/patient relationship. The court rejects the argument that there shouldnt be a duty to warn b/c nobody can predict what will occur.the court also rejects the argument that it would interfere the relationship between psychotherapist and patient, if the patient cannot rely on dr to keep things confidential. c. Instrumentality which caused the peril is under control of D or is injured b/c of Ds conduct. i. i.e. if person is injured by a train, RR has duty to act to help. 1. Hicks (Escalator): Boys finger gets caught in escalator of store. P sued D for not taking action to stop escalator sooner. D owed a duty to P b/c of a special rel. b/n shopper and store owner and b/c instrumentality was under Ds control. The only alleged negligent act is the store didnt act QUICKLY enough as reasonable employees of such a store would have acted under the same circumstances. The store is only liable for the proportion of harm that was caused by the delay** so the court will instruct the jury to decide at what point would a reasonable store/employees stopped the escalator. So the issue at hand is only the consideration of the injuryenhancement after the hand was already caught! 2. two exceptions: when they find that the fingers are caught on the escalator, technically its not their fault, however, the instrumentality belongs to defendant. a. If its your instrumentality, i.e escalator. b. Business invitee. Drs will not be liable for any negligence for rendering any aid. d. Assumption of Duty: Once D voluntarily undertakes to help someone, he must proceed w/ reasonable care. if there is a relationship between the parties i.e. an employee the relationship is enough to cause the employer to provide aid to the person in trouble. Undertaking the person has no duty---but decides to help the personhas created a relationshipcannot simply leave that person in peril after already accepting the duty to help him or her. i. D must make reasonable efforts to keep P safe and cannot discontinue aid if it would leave P in a worse position. 1. Drowning Person HYPO: D sees P struggling in river. D tells P he will help. D grabs a flotation device and flings it toward P once. It does not work. D cannot simply walk away. He now owes P a duty to act w/ reasonable care. Hypo: A hears of a robbery that will occur the next day. A says nothing to anyone. The robbery occurred. Somehow the store owners found out that A knew prior and sued him. A has no duty to them, and not liable. XI. Strict Liability: underlying notion with strict liabilitydont have to show any fault or wrongful conductsome times of activities engaged in by actors in our society create types of risks that should be treated very strictly. If someone else is harmed by those actsthere will be strict liability 1. When a court imposes strict liability-on a D it is saying that the D must pay damages although the D neither intentionally acted nor failed to live up to the standard of reasonable care that 43

traditionally has been at the root of negligence law. Sometimes referred to as strict liability. Also calledabsolute liability, strict products liability, and liability without fault. B. BACKGROUND 1. D is held liable to P for harm caused by Ds conduct even though D has exercised utmost care to prevent the harm. 2. Some activities are so inherently dangerous that those who engage in them should be liable for harm created by the activity. 3. Mere ordinary contributory negligence is not usually a valid defense. 4. Assumption of the risk is a defense. C. ANIMALS a) Trespassing Livestock: Owner is strictly liable for property damage caused by his livestock if they trespass on another persons land. general rule: owner of animals of a kind likely to roam around and damage anothers property is strictly liable for the trespass. i. Some states used to apply the fencing out statuteswhich provided that if the P fenced his land properly there was strict liability when the animals broke through the fence. Do not cover ii. A common type of statute permits a county to choose the rule it wishes to apply. In some statsanimals are permitted to run at large unless a county adopts a fencing in or fencing out ordinance do not cover. b) Domestic Animals: Owner is strictly liable only if the possessor knows that the animal has vicious propensities. if the owner knows or has reason to know that a domestic animal has vicious propensities, this is sufficient to classify that animal with wild ones and impose strict liability. One bite is not the law. the law is: no strict liability for domestic animals unless the owner knew or had reason to know that the domestic animal had vicious tendency. i. Although many of the case use the term vicious the test is really whether the animal has a dangerous propensity abnormal to its class 1. if a person is injured due to the failure of the owner to comply with the ordinance, the owner is negligent per se and so liable for the damages. 2. Causation must still be proved! c) Wild Animals: Owner of a wild animal is strictly liable for harm. Under the common law of England, the owner or possessor of a non domesticated animalwas subject to strict liability if the animal injured anyone. 1. Case a. Sandy v. Bushey (Colt kicks Man): P is kicked by Ds horse while feeding his own horse. Court held that P is strictly liable b/c he had reason to know that horse had a vicious disposition. Mueller rule (authority on these cases) holds D not liable if person knows animal is vicious and excites it or put himself in danger when he couldve avoided it. Note 2 pg 716: D. ABNORMALLY DANGEROUS ACTIVITIES: P would have to show that the D took part in an abrnomally dangerous activity must be proven Court says bc of the nature of the activitiythe activity has to pay its own wayeven without showing thatthe D has to pay damage for their lack of care. Know restatement 520******* 1. Rest. 519. General Principal: One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land, or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm. a. Strict Liability is limited to the kind of harm the possibility of which makes the activity abnormally dangerous. 44

2. Rest. 520. 6 Factors to consider to determine whether an activity is abnormally dangerous: a. Existence of a high degree of risk of some harm to person, land, or chattels of others; b. Likelihood that harm that results from it will be great; c. Inability to eliminate the risk by the exercise of reasonable care; d. Extent to which the activity is not a matter of common usage; e. Inappropriateness of the activity to the place where it is carried on; f. Extent to which its value to the community is outweighed by its dangerous attributes. 3. Cases a. Rylands (Reservoir Case): D, owners of mill, hired contractors to build a reservoir, at permission of land owner. Ps leasing land from same owner had mining operation on it, was damaged by reservoir. Court held that P could be liable for the damages even though he was not negligent b/c he made non-natural use of land. b. Miller v. Civil Constructors (Shooting Range): P was injured when a bullet ricocheted during firearm practice at shooting range. Court held use of guns is not abnormally dangerous and D is not strictly liable. Risk of harm could be eliminated by using reasonable care, use of firearms is common, activity was carried in appropriate place, and target practice is of utility to the community. 1. If the P does not win on the claim that the activity is abnormally dangeroushe may proceed with a negligence case 2. If the court holds that it is an abnormally dangerous activitythere wont need to be a trialb/c the basic facts will have already been agreed in the pleadings. 3. How do we decide what activities are abnormally dangerous?? Look at 520! a. high degreerisk of harm (has to do with the probability of harm) b. harm will be great (with the degree of harm) c. inability to eliminate the risk by exercising reasonable care. d. common usage? e. Location f. value to the community i. Arguments for the P its too close to the populationneed to know more about the location. c. Indiana Harbor (Chemical on RR): Chemical leak on RR. D manufacturer of chemical. Leak was caused by someones carelessness could be avoided by using reasonable care. The standard is applied to activity, not substance. Transportation relevant activity. Court must analyze the transportation of the chemical not the substance of the chemical. a. Court says we have to analyze the activityits not the fact that the chemical is dangerousdoes not mean the activity is dangerousin this case the activity is shipping! Notes from class: activities abnormally dangerous such as blasting in urban areas. Fireworks some courts have said yes and said no. there are some limitations to strict liability. d. Foster (Blasting causes Mink to kill kittens): D conducts blasting activities by Ps home. The noise frightens mink. D is not strictly liable b/c this is not the kind of harm the possibility of which makes the activity abnormally dangerous. a. the risk that is created from blastingexpectedthings flying someone getting hurtbut the mink getting scared and killing her kittens does not fall under a harm that u would expect from the blasting. 45

this strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous. What is the kind of harm that would normally occur from blasting cases, flying debris or the vibration of the earth causes personal or property damages. The court is saying that the fact that mother mink would get nervous and eat the mink is not one of the dangers of blasting. The court said no liability, they even analogized it to the proximate cause of negligence, this is not the type of harm that induces the court to hold that blasting is an ultra hazardous activity. e. Golden (Hurricane causes Flood-not liable): Ds hydroelectric plant overflows and damages Ps real estate. Court held that D is not strictly liable b/c the injury resulted from an act of God which the owner had no reason to anticipate. Even if storing water was abnormally dangerous, D is not strictly liable. Another limitation: the reservoir caused flooding in peoples land. one of the things they said letting water leave your land and harm someone else, the owners of the land where the water came from are liable. However the court said this does not apply to this case because of the hurricane, an act from god. A fierce hurricane in 1938, and the court said the act of god which the owner of the property could not have anticipated. b/c the owner could not have foresee he should not be able for the water that escaped his property. In the present case, the flood was beyond anyones anticipation. So if something unusual happens, that other could not anticipate, sometime the injury incurred by plaintiff, the court might not compensate the plaintiff. f. Sandy v bushy (colt kick-LIABLE): Sandy turned his mare and colt out in the pasture of a neighbor. Other horses occupied the pasture during the season, including the df's threeyear old colt. Pl went to the pasture to grain his mare and, while so doing, was kicked by the df's horse and seriously injured. i. Owners or keepers of domestic animals are not answerable for an injury done by them in a place where they have a right to be, unless the animals in fact, and to the owners' knowledge, are vicious. A careful consideration of the evidence discloses facts which fairly tend to establish that the defendant's horse had exhibited a vicious and ugly disposition at various times prior to the day on which the plaintiff was injured, and notice of the animal's vicious propensities had been brought home to the defendant. XII. Products Liability:402b is the umbrella terms for the liability of a manufacturer, seller, or other supplier of chattels, to one who suffers physical harm by the chattel. Most of the time it is consumer products: cars, toasters, microwave, bike.(things that are chattels.) either the product is defective in some or there is some misrepresentation of the product.

A. MANUFACTURING DEFECT 1. General Concept: One particular unit of a product line is defective. a. The actual process of making a particular product was defective in some way. b. A departure from the regular manufacturing process. c. Something Missing: A toaster missing a safety part even though all other toasters in the product line had the part. d. Something Extra: A mouse in soda bottle. 2. Negligence Theory of Recovery. a. P has to show that D failed to act reasonably in manufacturing the product. b. Conduct based theory of recovery. General negligence principles apply. c. Apply BPL analysis. d. Downstream Entity: To sue retailer, P would have to show that D failed to act as a reasonable retailer. This will be very difficult for P to do b/c retailers not the ones making the products. Strict Liability in Tort 46

e. 402(A)(1): One who sells a product in a defective condition unreasonably dangerous to the consumer is liable for harm if: i. (a) The seller is engaged in the business of selling such a product and ii. (b) It is expected to and does reach consumer w/o substantial change in condition. f. (2) This rule applies although (a) seller has exercised due care and (2) consumer has not bought product from or entered into contract w/ seller. g. Applies to both manufacturer and down stream entity (retailer). h. You can sue anybody regardless of the privity with the seller. i. The six requirement i. lease is regarded as a sale. so if I lease a Lamborghini and it is defective, it is the same as they sold me the car. ii. Duty to avoid unreasonable conduct. Breach of duty. Plaintiff must show causation both factual and proximate and finally the plaintiff must show that he incurred injury. 1. Duty: is to avoid selling defective products. 2. Plaintiff has to show the breach of that duty. 3. Plaintiff has to show causation.-->factual and proximate cause. 4. Plaintiff must show injury/harm. Defectiveness: how do we define defective. o One who sells product in a defective condition unreasonably dangerous. The consumer expectation test: cannot deviate from what the consumer had expected. o A productive is defective if it is not what it was intended to be. It departed from intended design. o Toaster HYPO: P buys toaster takes it home and is burned by sparks. P discovers a part was missing. P sues manufacturer. j. Negligence against Manufacturer: P must show there was a defect part was missing and that D was negligent in creating it. D may be able to show that it had careful QC and inspection procedures and was not negligent. P cannot recover. k. Negligence against Retailer: P will probably not be able to bring action against the retailer for negligence. The retailer was not involved in the manufacturing process. It did not act unreasonably. l. Strict Tort: P must show that product departed from its intended design. Here, the part was missing and this made the product unreasonably dangerous. P can collect from manufacturer and/or retailer. i. If P sues retailer (R), R has right to seek indemnity against manufacturer. 3. Case a. Greenman: Strict liability in tort D1 manufactures and D2 sells the Shopsmith power tool. Justice Traynor says that he is liable in tort, not just contract. A manufacturer is strictly liable in tort when an article he places in the market proves to have a defect that injures a human being. i. Literal language of 402(a) look at section for the elements a. Surratts six elements: i. D must be a seller and ii. Product was defective iii. which caused iv. injury or harm v. To the P (P must be a user or consumer). b. Rix (Water Tank): D was not liable if jury found that truck was equipped w/ a water tank after sale. To be held liable, jury must find that product was defective when it left Ds assembly line. 47

c. Eyeball on Dashboard HYPO: Ashtray had jagged edge when supposed to be round. P dropped cigarette, went to pick it up, smashed eye on jagged edge. Under negligence, D could argue the burden to take precautions was great and that it acted reasonably. But under strict liability, it is irrelevant if D acted reasonably. All P had to prove was that there was a flaw. B. DESIGN DEFECT 1. General Concept: P is challenging an entire product line. Every unit of this product is defective. 2. Negligence: A manufacturer is required to include the safety features that a reasonable designer would include. a. P must show that D failed to act reasonably in making the design decisions. Ds conduct was not reasonable. b. Apply BPL analysis. c. Unless there are unusual facts, P will rarely be able to recover from downstream entities (retailer) under a negligence theory of recovery. i. The retailer is not involved in the decision-making process in the products design. ii. Retailer is not required to take extreme measures to inspect the products it sells for safety. Bpl formula should be used in design defect cases. Jury decides would a reasonable manufacturer design such product.

Design defect: Risk Benefit analysis is useful. How much the design change affects the utility of the product. The design is defective if it is not reasonably safe. o Hypo: P sued the manufacturer of lawnmower he purchased from a retailer. While using it his foot slips and get injured from the blades. His allegation is the whole line of this type of lawnmower is defective. He brings forth evidence from expert witnesses who claim that the mower can be safer by installing a plate. Hes also claimed that the mower manufacturer was negligent. Almost in every case, where the design defect case, the plaintiff offers an alternative safer design. The evidence of the alternative design is admissible. D is also allowed to bring in evidence showing that it may not work as P is claiming. P may also show that it will not be financially burdensome to install such plates to protect from injuries. P can use this testimony to prove that the burden is lower than the potential and probability of injury (bpl). o Defendant is also allowed to show the burden outweighs taking precaution. o Did the manufacture act reasonably in designing the lawnmower? o the judge would allow all relevant data to distinguish what would a reasonable mower manufacturer would do. o If plaintiff can show defendant failed to comply with government requirement regulations(negligence per se), plaintiff allowed to show that but it is not conclusive. o A reasonable person, the hypothetical person would of course comply with all safety regulations. The mere fact that he complied with govt safety regulations does not mean that they were not negligent in designing and manufacturing the product. o The jury would only be instructed and they suppose to decide whether the defendant was negligent in not reasonably manufactured the lawnmower. In negligence we ask did the manufacture act reasonably or not. If they did not then they were negligent In strict tort, was the design of the product reasonably safe or not. If it is not reasonably safe it defective. In manufacturing defect, we ask in negligence, was the manufacture negligent in that product. Physical flaw of the product and the negligence of the manufacture. 3. Strict Tort: 402(A) Applies. a. Standard for defect: The product is defective if it is not reasonably safe. i. Apply BPL analysis to the facts to determine if the product itself was reasonably safe. 48

4.

5.

6.

7.

ii. Determining if D breached duty to avoid selling or distributing defective products. b. If P can show that the product that caused the harm was not reasonably safe, P can collect from both manufacturer and retailer. Merger of Negligence and Strict Tort: Manufacturer Liability a. In a design defect case where P is suing the manufacturer under a negligence theory, standard is whether D acted reasonably in making the design decisions of the product. b. In a design defect case where P is suing under a strict tort theory, the standard is whether the product itself was reasonably safe. Design is ultimate result of all design decisions. c. Thus, ultimate question the court must ask under each theory of recovery is whether the product was reasonably safe. d. Because the standard for determining Ds liability is the same under each theory, the court will apply the same analysis for each. e. If the court reaches the conclusion that the product was not reasonably safe, P can recover from the manufacturer under either theory. f. Apply BPL Analysis to determine if product is reasonably safe. i. If the court finds that the burden of taking precautions is less than the gravity x probability of the harm, then manufacturer is liable under each theory. Retailer Liability a. If jury finds that the product is defective, retailer is liable under strict tort b/c anyone who is in the business of selling and does sell the product is liable. b. Retailer will not be liable under negligence unless there is a very rare set of facts. Indemnity a. If Retailer is held liable, he can assert an indemnity claim against the manufacturer and shift 100% of the loss. b. Manufacturer is the true culpable party. c. Retailer is only vicariously liable due to the manufacturers culpability. d. If R is brought into original action and the manufacturer is available for P to sue, R would file a motion to dismiss b/c P could collect damages directly from the culpable party. Reasonable Alternative Design a. In design defects case, P will usually present evidence of a reasonable alternative design. i. Some courts hold P must prevent this evidence. ii. Other courts hold P does not have to. iii. Either way, it will bolster Ps argument b/c it will show that the risk of harm could have been feasibly reduced or avoided by using the alternative design.

8. BPL Analysis a. Court should Weigh: i. Usefulness of the product. ii. Likelihood the product will cause injury. iii. Probable severity of injury. iv. Manufacturers ability to eliminate unsafe character. 9. Cases a. OBrien (Vinyl Pool): Ds pool was made of vinyl, which was slippery material. Court held that case could go to jury on strict liability theory even though P did not present evidence that an alternative material existed. b. BPL Golf Cart HYPO i. Ps Arguments: 1. There is a feasible alternative design that would reduce injury. 2. Burden of replacing defective design w/ alternative is relatively low. 3. The gravity of the harm is great. ii. Ds Arguments: 49

1. Low probability of injury. 2. High burden alternative will increase price and decrease the utility of the product. 3. Industry custom all U.S. manufacturers use this system. The system complies w/ all U.S. safety features. a. This is allowable as evidence b/c it shows that actual manufacturers use ABC system. b. However, it is not conclusive b/c ultimate standard is what hypothetical reasonable manufacturer would use. c. Prentis (Forklift): P was riding forklift that did not have a seat and was injured. Court held that jury should apply BPL analysis to determine if the forklift design was reasonable. State of the art: not tested (technical knowledge at the time of the manufacturing). C. PROOF A defect may be proven by circumstantial evidence, where a preponderance of that evidence establishes that the accident was caused by a defect and not other possibilities, although not all other possibilities need be eliminated. The evidence is construed in favor of the Ps, so as to determine if reasonable minds could differ. Res ipsa-like inference can be made. In manufacturing defect strict products liability actions, P must be prepared to show: (1) That the product that injured P was, in fact, manufactured by D. Keep in mind that one who sells or distributes a product as its own that was manufactured by another is subject to the same liability as if it were the manufacturer. (2) That the product was defective and P was injured as a result. (3) That the defect was present in the product at the time of sale and was not introduced by a distributor or installer or repairer. D. DEFENSES TO PRODUCTS LIABILITY a. Comparative negligence 1. Analyze the same way under both theories of recovery. a. Applies to negligence and strict tort. 2. Daly v. GM (Door Latch): P sues for death of driver under strict tort arguing there was a defect in door latch. D presents evidence that driver was drunk. Issue: Do principles of Comparative Negligence apply to actions founded upon Strict Products Liability? Court: Comparative negligence principles apply to strict tort to make liability commensurate w/ fault. b. MISUSE of product. 3. If product was misused, D can argue: was it foreseeable misuse? a. No proximate cause. b. Contributory negligence. 4. But the misuses must be unforeseeable. If foreseeable manufacturer is liable. 5. Ford v. Matthews (P starts tractor in gear): D argues this was misuse and bar to recovery. Court held that this misuse did not relieve D from strict liability b/c the misuse was foreseeable. The tractor in question was designed to prevent its starting in gear, but it did. RECAP: When P uses a product in a manner unintended by the manufacturer, courts often treat this as a matter of defense. Evidence concerning a misuse or alteration of the product could be used to argue that (1) there was no defect in the product (failure of prima facie case), (2) that any defect in the product did not 50

cause the Ps injury (no causation), or (3) that the Ps conduct in contributing to the cause of the accident should reduce the Ps recovery (comparative fault/negligence). Whether regarded as a matter of defect or causation, the manufacturer is not subject to liability for an unforeseeable abnormal use of his product (issue for the jury). Question from test on pg 2 and 3 If it is a design defect case and its is a question that deals with both a manufacturer and a retailer deal with manufacturer first. Mention that the analysis is the same for negligence or in strict tort. Mention risk utility bpl analysis. What you want to do is look at the facts of the case pull out relevant fact facts and explain in a factual way what elements the plaintiff or defendant would argue. Touch upon the burden of taking precautions v. the potential gravity of the harm and the probability of the injury. Also, point out that the plaintiff has an alternative reasonable design that is technological feasible and is xyz in hypothetical, one of the things I would point out from defendant perspective, that there is very small number of accidents, plaintiff is saying you should resign this product but the probability of the accidents are really small. The plaintiff can argue that the gravity of the harm are very serious/ great. Another factor: plaintiff can argue, 300dollars for a 5000dollars product is only 6percent increase, is not a big increase. Defendant 6percent is fairly significant increase and maybe cost is competition between competitors and might cause them damage. plaintiff this is for safety and increase the safety product, would eliminate or reducing the danger. 4th thing, although xyz is better on steep slopes can cause the car to stop when the driver does not intend to stop, it is inconvenient = Plaintiff*(review) can argue this is a significant decrease in the utilityof the product, its suppose to drive around without any unexpected stoppage by the brakes, this is a real inconvenience, significant decrease of the utility of the product. Plaintiff* would argue no one would be hurt by it. Acme defendant can argue that we have complied with the custom of the industry, all the manufacturers use the abc brakes, they are fine and they cost effective. Plaintiffs respond that is not conclusive, even if every manufacturer uses the abc uses b/c the jury decides what a reasonable person would do, even that reasonable person would be the manufacturer of the cart. Plaintiff could also say that it is not the universal trend it is an xyz brakes that uses this brake. The most expensive car, luxury model, it is not fair to compare. Defendants can argue we compliance with all safety regulations. Plaintiff, it is not conclusive, so what if they complied. On the issue of risk benefit, risk analysis benefit. Bpl one way to assess the risk benefit. Issue of fact for the jury. Now we can speak about the retailer, strict tort because retailer in the business of selling the product, can be held liable if the jury decides the product is defect in design. The retailer as well as the manufacturer can be liable. However, in regards to negligence it does not appear that the retailer was negligent all he had to do was to be careful as a retailer. Lastly, at the end of the answer, if the retailer is held liable under strict tort, then retailer is actually held vicariously liable for the design defect of the manufacture, thus the retailer can bring an action of indemnity against the manufacturer. Products liability: 2 cases in the casebook about design defect: Prenetis case pg 743; Obrien case 750 Prenitis case; the court ultimately held that because in design defect, there is no reason to have more than one instruction for the jury. Trial court simply give instruction on negligence. Strict torts and negligence are the same so there is no need to give two instructions to the jury. Obrien case: the court held that it is not absolutely necessary in all cases that a plaintiff should have a reasonable design, most jurisdiction say you do have that. Proof: in manufacturing defect, one of the things the court said, whether the car/product was defected at the time it came out from the factory. Sometimes, defendant should argue that the product was not defective when it came out. o Hypo: case in state Nevada, a person purchased a soft drink, he drank part of it and then he saw a dead mouse in the bottle. How did the mouse get in the bottle? Defendant was the bottling 51

company, admitted that there was a dead mouse was in the bottle but we dont believe the dead mouse was in our bottle before it left the plant. 11/25/08: will treat lessor as a sellor for purpose of strict liability. court said the giving of the forkflift was like of a sale b/c they gave it to them for marketing and trying to sale. they gave it to him to try it out and to purchase it. Three part test.1) Defendant is commercial entity 2) the defendant gives another possession and 3) they do it for financial gain. Suppose: a hotel on a beach, in florida, is renting out sail boats you have to bring it back sometime that day. Now, is this a sale? it is a commercial entity, did it financial gain, did they turn over possession? Its questionable you dont take it home, they only have a limited right. The court held that this is like leasing the truck and it was treated as a sale. Review note 4 pg 769: suppose p goes to theater on Friday. In the lobby, he stepped back and fail, incurred injury. The owners of the movie theater put the guard rail after 3 weeks p sued. To support ps claim at trial can p bring into evidence about the owner of movie theater built the guard rail afterward. The courts held is NO. am not permitted to bring evidence to put guard rail b/c 1) argument based on logic, the evidence does not do much to prove negligence on the part of management. It has less probative value. All it does is show that they put a guard rail after the injury occurred, not whether a reasonably person before knowledge of the accident would have put a guard rail. Its not fair for defendant because jury will bias plaintiff.2) we want the law to encourage safety measure. For policy rules, if the evidence was brought in it might prevent parties from putting the guard rail or any protective measures b/c it would call for their guilt. Exception: if d should say this is as safe as it could possibly be. Nothing else could make it safer. If the p has a claim that should have been designed safer, and p later included safety measure x, great majority of jurisdiction that evidence is not allowed to prove negligence, or defect in product, (strict tort action). Chapter 9: owners and occupiers of land: Three categories of suits against owners: trespassers (less rights): people on land with no privilege o Licensees: (more right than trespassers) more than trespassers but less than invitee: the person who has been invited to come home. Licensee those that are invited for social activities or anything. o Invitee: basically people who have a privilege to be on the land. business invitees, invitees from the owner that the owner benefits from. o In general, owner and occupier are liable to people outside for negligence. A person who is the owner, occupier of land, if something happens on a roadway passing by and was negligent he could be liable. The owner is not responsible for natural things. Except trees. If a tree falls or a branch, supposedly a landowner could be liable b/c they have a right to inspect trees not in rural areas the burden is too great. Look at facts of the case. o Saliva case. 482. Minor league baseball. 1950. Note pg 483.must exercise reasonable care. Did they recognize reasonable care? Courts say they could have prevented this if they exercised reasonable care. o In regards to natural conditions on land, the landowner has not duty and is not liable. If it rained or snowed. NOTE 5 PG 482. NATURAL CONDITION = NO LIABILITY. Exception: in regards to trees: agreement landowner is liable if the tree is defective and the owner did not know that. Exception: only to urban, to someone with small amount of land. if the tree is diseased to possibly harm someone, you have a duty to inspect and act reasonably to might what happen to the tree. If the tree falls and injures someone walking by your land, lets say you did not plant the tree, it was natural, but it was a tree, 52

therefore you have a duty to inspect and act reasonably if there is a danger. Duty to trim the tree; however, IF THE TREE IS IN RURAL AREA, MUCH LARGER PROPERTY, if someone is in the suburbs with 100 acres, they will not be able to inspect. It is not logical to make them inspect all the trees. Court rejects the rural urban standard in TAYLOR V. OLSEN. Rather it held that the situation needs to take into perspective all relevant factors: the property. o Up to the jury whether or not to act reasonably to inspect the trees. Once a landowner altered the condition of the land then the owner must exercise ordinary care. Note 10 pg 495. The person traveling on the road had to sit down and tie his shoelace, the court allowed him to covered. The landowner must exercise ordinary care for his safety. He was doing something incidental to travel. In the second case, where he sat down and spoke to his friend, he was departing from his traveling, he was talking to a friend and therefore if he dont have the status to be on the property, he became a trespasser and was not allowed to recover. In this case, it was not incidental to travel. ON THE PREMISES: either a TRESPASSER, LICENSEE OR INVITEE. o TRESPASSER: people who dont have a privilege to be on the land. Has very few right. If trespasser doesnt mean you can shoot them, they still have a few rights against the landowner. In SHEEHAN v. st.apul: p walked on the railroad tracks. Railroad had no knowledge of his presence. Hes not an outlaw you can shoot him. But he is cloth with very few rights. He couldnt get out his shoe from the railroad when the train passed and cut his foot. The train did not see him. Does he have any right to assert over the railroad. The court said no. he had no right to be there. The railroad did not owe him any duty until the railroad discovered its presence. No indication of negligence by railroad so the duty of the railroad was until they discovered of his presence. So, the court said they did not act unreasonabely, they tried but failed to stop the train, but they were too close when they discovered him. They owed no duty to him until they discovered him on the railroad. In areas of high trespassers the railroad should anticipate the trespassers. Trespassers. Few rights. o Invitee: basically a business visitor. Like a customer at a store. A business visitor. Invited on the land or store for business purpose. For shopping. The advantage for the store from the invitee. Its only fair that the invitor owe a full range of duty to invitee , owe them ordinary care. o Licensee. Has privilege to be on land but does not have a status of invitee, such as a social guest. Has more right than a trespasser but less than invitee. A social guest in the home. Licensee has the right to be warn of concealed dangers that the landowner has knowledge of. Has the right to be warned about concealed danger. Trespassers/ licensees/ invitees. o Licensees: barmor v. elmor: plaintiff is a licensee b/c he was a social guest. Well, invitee means a business guest, shopping in a store. Basically the court said the plaintiff here was a social guest. Plaintiff said he was there on business. He talked about business with the defendant. The court however said well that was not the homeowner business. The business cant make profit from you being there. This was an organizational purpose not the individuals. the court did not count that as an invitee and held he was licensee. As a licensee, the father only had to give notice of the licensee of known danger. Therefore the father only had to argue that he did not know of the sons danger. Plaintiff argues that their son was danger and should have known that he would attack. o Invitees: Whelan v. van natta: plaintiff came into a grocery store and purchased cigarettes. After that he asked defendant for boxes. Defendant said go into the storage room to get them. When he 53

went he fell and was injured. His argument is he is an invitee, he came into the store to purchase goods. The defendant however said he was not an invitee because he made the purchase and went into the storage room for his personal gain. The court said you have invitee while youre doing business. However if you change your status youre not an invitee anymore. yOU MAY ASSUME THAT THE MAJORITY RULE THAT THE LICENSEE IS MERGED WITH INVITEE. THERE IS A DUTY TO EXERCISE REASONABLE CARE. BUT KNOW THE TRADITIONAL RULE.

Hypo: mean if the court say having a golf course, carrying the activity of golf, is the kind of activity that you can apply strict liability. All plaintiff has to prove is that defendant engaged in the activity and plaintiff was injured and harmed by it. Hypo: paradigm of strict liability, a core idea of strict liability, is the blasting cases: so typical that sometimes, in urban area, to use dynamite for blast is strict liability. Were making a tunnel in nyc, so were blasting, suppose somebodys property is harm, all you have to show that they engaged in the activity and you incurred a harm. So much danger inherent, it is only fair that someone who engaged in such activities should pay damages without them showing negligence. If strict liability does not apply, I have to find something for their negligence such as lights or something else. You dont have to establish any negligence, if the court recognizes the tort as strict liability all you have to show is that defendant engaged in that harm, and plaintiff incurred danger. You can sue under negligence and strict liability. Ultra hazardous activity. Rylan: Non delegable duty: There is strict liability if something of control of one persons land goes into their neighbor. If cattle leaves the owners land and cause damages to a neighbors farm, there is liability. When it leaves the land and goes somewhere else and causes damages there is strict liability. LEARN THE FACTORS OF STRICT LIABILITY: MEMORIZE THEM. SECT 519 AND 520 Strict liability on abnormal dangerous activity also known as ultrahazardous. Note 8 pg 709. o First paragraph: observe also that the decision whether an activity is subject to strict liability is for the court, not the jury, to make. Were talking about the six factors of the restatement. a) Probability of the harm: b) The gravity of the harm: likelihood that the harm that results from it will be great; c) Reasonable care standard: inability to eliminate the risk by the exercise of reasonable care; d) Common usage factor: extent to which the activity is not a matter of common usage e) Location factor: inappropriateness of the activity to the place where it is carried on; and f) Community value of the activity: extent to which its value to the community is outweighed by its dangerous attributes. These factors have influence on the courts. In Indiana harbor belt r/r/ co v. American Cyanamid co. A) In the balloonist hypo provided in the case, the judge said that all of the 6elements existed, therefore, plaintiff could claim strict liability B) Automobile accidents: so in relation to the six elements; a and b are present, if everybody drives automobile always exercise reasonable care we would still not eliminate risk, this is a case where we are unable to totally eliminate the risk by always exercising reasonable care, and no court will hold driving an automobile is an abnormally dangerous activity. Also driving is a common usage, therefore d is not 54

present. Location factor and community value are not present bc it is valuable to the community and society, therefore e and f are not present. a. Now the fact that the factors split, three factors from the restatement say that the activity Is dangerous and the other three is no, however driving an automobile is clearly not an abnormal dangerous activity. b. Blasting cases perhaps the most obvious example of strict liable. Blasting in urban areas where the location is inappropriate are held abnormally dangerous activity. c. Fireworks display: common usage and community value factors: is it of common usage? No a small amount of people that know how to exercise fireworks. Highly specialized activity such as blasting. What about value of the community? The value of the community is not great if it is dangerous. Miller: a) Plaintiff wants to entitle recovery under strict liability. The court held the first element is not a situation where it applies. b) All four of of the elements except a or b, all indicate that the factors point to the direction of not being strict liability. Indiana harbor belt r.r. co. v. American Cyanamid: a) We cant say someone is strictly liable just because the contents were toxic. b) We have to focus on the activity in dealing with the hazardous material. The activity here is the transportation of this chemical. It seems kind of strange that the transportation company is suing the loader. It makes no sense to hold the manufacturers liable for the transportation unless they had a bigger role c) Virtually nothing. Remember more the balloonist case. or the automobile case. or the firing range of the miller case. disregard what the Indiana harbor belts case. d) certainly know the six factors and know how to apply the six factors.

DAMAGES: 3 kinds pg. 520.MUST REVIEW. On exam its going to deal with PUNITIVE DAMAGES. PUNITIVE DAMAGES: the amounts are very controversial. Idea is: generally, if someone has done something negligently which causes injury the plaintiff should be compensated. If the defendant acted outrageously, beyond the bounds of what a member of society would do, then the law says the jury may award punitive damages. It goes beyond compensation this goes to punish the wrongdoers, and to deter future wrongdoers. From notes in casebook, very often in intentional torts, plaintiff can commit punitive damages. 5 intentional torts plus i.i.e.d, in many cases punitive damages can be given in intentional damages. Most negligence cases dont get punitive damages but some do. Review pg 554. There is some states where gross negligence can be sufficient to invoke punitive damags. Pg 555 note 3. Argument against punitive damages in strict liability tort. The court said in the case where the dude published nude pics of his wife is sufficient to invoke punitive damages. It is up to the state to receive punitive damages. No one has a vested right to get punitive damages. Its strictly the states privilege to give punititve damages. Whether or not plaintiff get punitive damages is a question of state law. The due process clause limits how much plaintiff gets. Gore case.

Know all three of the pure 5050, 50 40 main forms of comparative negligence. 55

Federal tort claims act under immunity. Pg 648 review it . . Manufacture defect: Damages: punitive damages: what state law provides with punitive damages. 75% goes to state fund. 25% to individual. Due process restricts limits. Nature of punishment. The damage award a punishment. 145,000,000 for punitive damages on 1,000,000 compensatory damages= not allowed its too much. If it is more than a single digit relationship, 9 to 1 is okay, 10 to 1 is not good. Stay in the single digit. Calculation of amount note 2 pg 562:

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