Torts Outline

1. Intent a. A voluntary purposeful or deliberate act. Or an act done with the knowledge to a substantial certainty of its outcome b. If consequence is unlawful = Tort i. Ranson: mistaken identity does not negate intent ii. Talmage: doctrine of transferred intent 1. D threw stick at a boy, missed the boy and hit the P, he was liable because the intent to hit the first boy transferred to the P 2. Doctrine of Transferred intent Even if P is not intended target and D accomplishes any 1 of the 5 intentional torts that fall under the Trespass Writ, D is liable for that tort (applies to five intentional torts: Battery, Assault, Trespass to land, Trespass to Chattel, False Imprisonment. NOT IIED!) iii. Mcguire: mental illness does not excuse conduct for an intentional tort, cannot negate intent as long as plaintiff did not assume the risk 1. Trying to protect the most innocent, nurse in this case is more innocent than the insane person she was taking care of 2. Intentional Torts a. Battery i. A voluntary intentional act which results in the harmful or offensive touching of another ii. Designed to protect your person, once the touching occurs, actor is liable for the consequences that follow. 1. If two people meet in a narrow passage way and without any violence or design of harm, one touches the other gently it will be no battery (NYC Subway) iii. Fisher: Battery can be the invasion of your personal integrity, snatching a plate from your hand is viewed as an extension of your body, furthermore the racial slur showed his touching was meant to be offensive b. Assault: i. Voluntary intentional act that puts another person in immediate reasonable apprehension of harmful or offensive contact, and with an apparent ability to carry it out (must be aware). Designed to protect your personal space 1. When actions and words contradict, actions always win, with a blind person words alone are fine a. If I say I am not going to hurt you but I cock my arm back as if I am going to punch you, I have committed an assault ii. Hill: Just because someone cannot physically touch you, if you are put in reasonable apprehension it is assault. 1. Ex: I know when I swing my bat it will come within three inches of your head but it will not touch you. You do not know this so when I swing the bat and if you are in reasonable apprehension, I have just committed an assault c. False Imprisonment i. A voluntary intentional act that confines a person within boundaries against their will with no reasonable means of escape and without legal justification. ii. Confinement no reasonable means of escape, if there is a reasonable means, and P does not know, he is still falsely imprisoned, additionally can be confined by words but they must threaten your safety, must be immediate and direct threat 1

1. If you take an unreasonable means of escape and get injured you cannot recover under false imprisonment a. Ex: jump off 20th story of building to escape and hurt yourself, cannot recover under false imprisonment (not reasonable means of escape) iii. Designed to protect a persons freedom of movement 1. Taking your child this is false imprisonment because the child, the personal property, is so closely connected it effects your freedom of movement 2. Taking your wallet is false imprisonment, but taking your car keys is not! a. Taking your wallet restricts your ability to move because without any identification the police could arrest you, restricting your ability to move. The taking of your keys only restricts you from using your car but you are still free to move by any other means, therefore the taking of the keys is not false imprisonment 3. PROPERTY NEEDS TO BE PERSONAL ENOUGH THAT IT RESTRICTS YOUR FREEDOM TO MOVE iv. Big Town Nursing Home: P checked in to nursing home under the condition that he could leave when he wanted, when he tried to leave they forcefully brought him back and confined him in crazy ward and strapped him to a chair multiple times: FALSE IMPRISONMENT v. Parvi: P was confined in police car and dropped off at a golf course, he was unaware/unconscious during confinement so it cannot be false imprisonment unless he could prove that he was harmed from the confinement 1. Must be aware during confinement otherwise you cannot sue for false imprisonment. Only exception to this is if you are harmed during confinement or as a direct consequential result. 2. If P is harmed directly from confinement (if when he was dropped of at the golf course a mower chopped his head off he could have recovered based of off false imprisonment consequential damage/reasonable connection, but once he wonders into street and gets hit by a car this is not a direct consequence of the confinement. vi. Hardy: P was escorted to the managers office under a false pretense to be questioned if she stole from the store, she was never told that she could not leave therefore this was not false imprisonment, furthermore she wanted to stay to clear up this mishap 1. If she was told if you leave you are fired this would not be false imprisonment because her person was not threatened 2. If you stay voluntarily you cannot recover under false imprisonment d. Intentional Infliction of Emotional Distress (IIED) 1. A voluntary intentional act that is extreme and outrageous that causes SEVERE emotional harm i. Severe emotional harm 1. Physical manifestations help to prove this, but physical symptoms are not necessary 2. Mere vulgarities will not suffice unless the D is in a power position (ex: teacher calls student a bitch, doctor verbally abuses patient) ii. Extreme and Outrageous conduct 1. Conduct must exceed bounds that are tolerated by a civilized society 2

2. If you told an average person on the street what happened they would say Outrageous! iii. State Rubbish Collectors: D told P that if he didnt comply with the unions demands D would seriously hurt him, his business, and property. These threats made P physically ill (physical manifestation). This was IIED because conduct was extreme and outrageous which caused severe emotional distress (think of Tony Soprano saying if you dont do this you will sleep with the fishes.) iv. Slocum: P asked D who worked at a grocery store where something was and D insulted P, she then went into cardiac arrest because she had a prior heart condition blaming it on Ds insult. It was ruled not to be IIED because it was not apparent that she had a prior heart condition 1. If P would have had a visible pacemaker she could have recovered from IIED a. Certain people require more care such as pregnant women, person with a visible pacemaker. It must be apparent though (it is apparent when a women is pregnant) v. Harris: P had a stuttering condition; his manager (D) constantly ridiculed him and allegedly made his stutter worse. He was already self-conscious of his condition and had admitted that bosses made him nervous. Lost IIED case because he was unable to show how much of the stutter worsened from Ds actions vi. If you are a family member you can recover under IIED if something terrible happens to your loved one 1. Ex: father is beaten up and you witness, D does not have to know that you are there but D is still liable because D knows that you will find out. Presence is not necessary, can hear from another room 2. Ex: husband killed in action, his coffin is left at wifes front door when she comes home to see this, it is IIED e. Trespass to Land i. A voluntary intentional act that physically invades the boundaries of anothers land. Do not have to prove actual damages for this tort. 1. Exception: if physical invasion is intangible must prove actual damages ii. Pertains to usable airspace above ground, also pertains to your land underground 1. Exception if you find vein of oil underground on your land, you can follow the vein wherever it leads iii. Who can be proper Ps in Trespass to Land tort owner, guests, family members on property, someone who has an ownership interest (hotel guest, lessee), burglar in some instances iv. Nuisance different than trespass interferes with owners use and quiet enjoyment of land. In nuisance you have to show damages 1. Every trespass is a nuisance but not every nuisance is a trespass v. Dougherty: D was a surveyor who physically invaded Ps land, caused no actual damage but still committed Trespass to land because no actual damage needs to be shown vi. Bradley: When airborne microscopic particles are transitory and quickly dissipate they are a nuisance not a trespass. However when they accumulate on the land and dont pass away they are properly denominated as a trespass but in order to recover, must prove damages vii. Herrin: D used a shotgun to shoot a bird over Ps land, even though the bird and bullet never hit the Ps actual land, it was a trespass because the bullet passed 3

over the usable airspace which interfered with quiet, undisturbed, peaceful enjoyment of the Ps land thus committing a trespass in the very least. viii. Rogers: D placed snow fence on Ps land with the consent of the P because D had a license to do so. Once license expired D had to remove snow fence in its entirety. D left an anchor of the fence, which P crashed into with his tractor leaving him fatally injured. License allowed defendant to leave snow fence until snow season was over 1. Once license has expired, licensee no longer has permission and now becomes a trespass 2. Ex: July would no longer be the snow season 3. Privileged entry is limited to time, space, and purpose. a. Purpose ex: allow handyman on property to fix roof, handyman then lounges in pool, this is trespass because the handyman moved beyond scope of invitation f. Trespass to Chattels i. A voluntary intentional act, which intermeddles (which interferes with the affairs of others) with a chattel, which is in possession of another. ii. Liable to a person for trespass to chattels if: chattel is impaired to its condition quality or value, or physical dispossession of the chattel (must show damage), deprivation of its use for a substantial period of time, or bodily harm is caused to the possessor or harm is caused to some person or thing which the possessor has a legally protected interest. iii. For trespass to chattels you have to show actual damage, the remedy of which it the restoration of the chattel before it was intermeddled with 1. Ex: you have a one of a kind car that D takes and crashes you sue for Trespass to Chattel because you want the car back in its previous condition iv. Glidden: P was a four year old girl that played with Ds dog and got bit, she sues for damages, D countersues for trespass to chattels, D is unsuccessful because P was too young to be convicted of negligence, therefore she is too young to be convicted of Trespass to Chattels v. CompuServe: D sending mass emails to Ps customers using Ps servers, these mass emails are slowing down Ps servers which is enough to show actual damage for a cause of action for Trespass to Chattels g. Conversion i. A voluntary intentional act in which the person exercises dominion or control such that there is an interference with the owners ownership right to control the chattel 1. Theft = conversion 2. Every conversion could be a trespass but not every trespass is a conversion 3. Treat like you own it 4. In conversion, value of damage is the price to get a new one usually governed by fair market value at the time when it was converted. You break you buy it 5. Acting in good faith is not a defense when receiving a converted item, unless you are a bailee (mailman) a. Exceptions to bailee good faith exemption: bailee is complicit, when bailee is delivering a good and two people claim to be rightfully recipient, if bailee gives the item to the wrong person = conversion 4

ii. When P is deciding to sue for either trespass to chattels or conversion, P must decide what they want in damages, do they want the personal property restored to its original condition, or do they want a new one 1. In order for P to have this decision, COA has to rise to the level of conversion iii. Pearson: Ds agents broke into Ps office took documents and photocopied them to use a source for a newspaper story. Once done photocopying the document the agents put them back in their original condition. 1. Not conversion because they were put back 2. Technically a trespass to chattel because they were dispossessed but not able to sustain this COA because no actual damages occurred. If the documents contained nuclear secrets, then damages could have been proven for trespass to chattels, but documents were mere letters and correspondents, this is more like defamation and invasion of privacy iv. Conversion ex: Jimmy sees a corvette, enters it and attempts to hotwire in order to steal. He then notices a police car on patrol, he gets out of the corvette and leaves 1. This is still conversion because jimmy exercised dominion and control when he was attempting to hotwire the car. v. Conversion ex: P has one of kind car; D steals it and then wrecks it. This is conversion, but since P wants the car restored to its original condition he sues for Trespass to Chattels Comparison Chart Issue What Owner Gets Back Who Keeps Chattel What D. did to Chattel Amount of $ Recoverable Interest Interfered with Trespass to Chattel Property and Damage Owner Borrowed/used/return Amount used of property Temporarily Possessory right Regular stuff Everything else Conversion Full Value Converter Converts it Full Market Value Control / Ownership

Type of Chattel Involved

Personal, Independent Scientific, literary Ideas

3. Privileges a. Consent i. A voluntary intentional act in which there is an expression of permission that someone agrees to the act being performed - consent can be verbal, can be actions, or can be silence ii. Cannot consent to something illegal ever (majority opinion) 5

1. Minority Rule looks at the statute and determines who the statute is trying to protect (ex: third trimester abortions, is the statute designed to protect the mother or the baby? Can consent if statute is designed to protect mother even though this is an illegal act) iii. The two most important facts when determining if someone gave consent 1. Capacity make sure you are rational state of mind 2. Voluntariness making sure you are not under duress iv. OBrien: P did not pull back arm when doctor went to give P a vaccination, her action of not pulling back her arm constitutes as consent because a reasonable person would have pulled arm away v. Hackbart: (NFL football case) after the play was over D ran over to P when P was kneeling down and D elbowed P in the neck. No penalty was called, but this was still a battery because even though P agreed to play football he did not consent to this act, which was outside the bounds of the game. Consent has limits vi. Mohr: P is diagnosed by D in needing surgery for infection in right ear. While under anesthesia the D decides surgery is not required on right ear but is necessary on left ear, so operates on left ear. P did not consent to left ear surgery; this cannot be implied by a doctor. Only time doctor can imply consent is if the patient is incapacitated and in this emergency setting the consent would be necessary to save the patients life or prevent serious bodily harm 1. This was a battery, because battery protects the integrity of your body vii. De May: D brings a person who P believes is a doctor, D knows he is not a doctor but lets P assume this, P consents to Scattergood being at the delivery (P is giving birth). When P learns that Scattergood is not a doctor, she sues D saying that she did not consent to Scattergood being there. P is successful in suit 1. For P, Unilateral Mistake is a defense for giving consent (D knows the true identity, but P does not). Bilateral mistake is not a defense for consent. viii. Intoxication, insanity, etc play on ability to give consent but they do not defend intent ix. Consent hypos: 1. Identical twins, one with both kidneys failing, the other twin has two healthy kidneys. Parents consent to the removal of a kidney from healthy child to save other child. Healthy child does not consent, whose consent is superior? Parents consent wins in this case. Usually when child is under the age of 15 or 16, parents consent is superior. 2. If I tell G I am going to punch him and he stands his ground, is he giving me consent to punch him? Probably not (illegal act) b. Self Defense i. Self-defense must be proportionate. Shooting someone who is trying to stab you is okay, but you cannot shoot someone who is pushing you ii. Self Defense must happen the moment you are put in jeopardy and must be proportionate iii. Mere words cannot invoke self defense there must be an act iv. It is okay if you make a reasonable good faith mistake when exercising self defense 1. When coming to the protection of others, the self defense privilege applies but you cannot make a mistake v. Ex: If aggressor is trying to kill you, and you shoot at him and miss and hit an innocent bystander, self defense privilege still applies 6

c. Defense of Property i. Only non-deadly force in authorized (unless you are in Florida) ii. Katko: D had a spring loaded shotgun in his abandoned farmhouse, P broke in to steal some jars, when he entered the one of the rooms the spring loaded gun went off and shot P in the leg, causing him to loose part of his leg. 1. D said that having the gun aimed at his leg was reasonable and not deadly force. Court did not agree, stating that in defense of property you cannot use deadly force or force that will cause great bodily harm iii. Ex: If intruder is on your property and you see him, so you shoot a warning shot, but the warning shot shoots him killing him or causes great bodily harm, you would be liable because of the action, regardless if you did not intend to have the bullet actually hit the intruder. d. Recovery of Property i. In todays day you should resort to the legal process to recover your property, but if you want to do it yourself you have to be in fresh pursuit (limited to prompt awareness of dispossession), demand the return on the property, you can also not breach the peace. ii. Hodgeden: D bought stove on false credit, when Ps realized they chased him down. When they attempted to recover the stove, the D pulled a knife, defense of property then turned into self defense and proportional force was allowed to regain stove (Ps held D down and beat him up, this was okay because it was proportional in defending against a person with a knife.) iii. Bonkowski: P walked out of store, Ds security guard had P return so he could question her if she was shoplifting. Security guard had her empty purse when he found out that she did not steal anything he let her leave (he had reasonable suspicion to believe P stole, because another customer told him). 1. P sued for false arrest because of the detainment, court said it was not because of the shopkeepers privilege. 2. Shopkeepers privilege: If they have a good faith belief that you are stealing, they can stop, detain, and question person once they leave the store. Exception, if you are stealing underwear they can stop you before you leave because shoplifter is not going to undress in the public store to remove the stolen items. a. Detainment requires proportionate force, search must be proportionate (cant do a cavity search if they think you stole a basketball, if male searches female, must be in the presence of another female) b. Must tell you what they think you stole. (If you are in Macys they cant search you for allegedly stealing pills) e. Necessity i. Public Necessity: a voluntary intentional act that is reasonable to commit a tort to prevent threatened harm to the public (protects completely against liability). Three characteristics: public interest, reasonable belief action was needed, action took was a reasonable response to the need, 1. Suroco: Ps house was on fire, fire was going to threaten surrounding homes, D (mayor of San Francisco) destroyed house out of necessity to protect surrounding buildings. This was allowable under public necessity ii. Private Necessity: a voluntary intentional act that is reasonable to commit a tort to prevent harm to a private citizen (not a complete defense to liability). Must compensate owner of property with fair market value for damages 7

1. Vincent: Ds boat was attached to Ps dock during a terrible storm. Boat damaged the dock, court ruled that D acted in necessity but since this was private necessity, D was liable for damages to Ps dock. 4. Negligence a. Negligence: when the conduct of the D falls below the established standard for the protection of others against unreasonable harm b. In every negligence case you must prove all 4 elements by a preponderance of the evidence (more likely than not). The 4 elements are: i. Duty to exercise reasonable care ii. Breach of Duty iii. Causation 1. Cause-in-fact 2. Proximate Cause iv. Injury c. Duty i. When LH+SH>CP = unreasonable risk duty to exercise care exists ii. When LH+SH<CP = reasonable risk no duty to exercise care exists iii. When LH+SH=CP = usually no duty because you cannot prove more likely than not iv. Carroll Towing Co: LH was high (many ships in the harbor during wartime), SH was high (a huge barge floating through a harbor unattended) was greater than the CP (make sure there is a bargee on the barge or tie the ropes tighter). 1. Because LH+SH>CP, the court held that there was a duty to exercise reasonable care v. The Standard of Care: 1. What a Reasonably Prudent Person would do under the same or similar circumstances. a. This standard is not subjective but it dynamic, can change depending on the facts 2. Ex: a skier on a black diamond ski run will be judged by what a reasonably prudent person on a black diamond ski run would do. a. We will take into account extraordinary skills (which can raise the standard, if you are an Olympic skier), but we will not take into account that you are a beginner because the standard of care establishes what the minimum appropriate conduct would be in a particular situation. d. Breach of Duty i. To determine breach of duty, must look at Ds actions and see if they fell below the standard of care (RPP) ii. Vaughan: D built hey rick on one side of his property near Ps cottages. Hey rick fire spread to Ps cottages and destroyed them. D breached his duty to exercise the proper standard of care 1. Duty exists: LH (hey catching fire) + SH (cottages burning down) > CP (put hey rick on other side of property) 2. Breach: D told P that he would take his chances and leave the hey rick where it was. A reasonably prudent person under the same or similar circumstances would put the hey rick on the other side of the property. iii. Delair: D was driving on highway, when he pulled up alongside P his tire blew out and he crashed into P. There was evidence that the tire was worn through the fabric before it blew out. A reasonably prudent person under the same or similar circumstance would know to change his tire when it has worn through to 8

iv.

v.

vi.

vii.

the fabric. The fact that the D did not do this, his actions fell below the standard of care, therefore there was a breach of the duty. 1. Most people do not check their tires every time they drive their car, however the standard, a reasonably prudent person would check his tires before he drives. Trimarco: D was landlord to P. When P shut the glass shower door, the glass shattered everywhere. D had not installed shatterproof glass b/c at the time of door installation common practice was non shatterproof glass. 1. LH + SH > CP (installing shatterproof glass) 2. A RPP would have installed shatterproof glass, D excuse of saying that is was common practice of not installing shatterproof glass in not bought by the court a. What usually is done may be what ought to be done, what ought to be done is judged by what a RPP would do. This means that just because everyone is doing it, does not mean that it is the right thing to do Cordas: D was driver of taxi, gunman enters his taxi and puts gun to his head. D jumps out of taxi which then hits P. 1. LH + SH > CP (staying in taxi and driving it), however in an emergency circumstance the standard of care changes, what a RPP in this emergency situation would do. Because of this D did not breach a duty 2. Reason he did not breach his duty is because RPP under the same or similar circumstance would jump out of the taxi to avoid being killed. Emergency Circumstance 1. In an emergency circumstance standard of care is what a RPP would do under the same or similar circumstance. We take into account an emergency but not if D causes emergency or if D has special training for emergency situations (ex: police officer, bank teller) 2. Ex: (emergency circumstance) breaks on your car go out, due to no fault of your own, you are able to safely jump out of your car, once you jump out, the car crashes into a parked car. Your actions did not fall below the standard of care b/c a RPP in this emergency circumstance would do the same. Special Standard of Care for people with a handicap 1. When using the Standard of Care for someone who is handicap, for example a blind person, they will be judged by what a reasonably prudent person who is blind in the same or similar circumstances. a. Ex: A RPP who is blind would never drive b. Roberts: D was a blind man working at a post office concession stand for three years, left concession stand to go to the bathroom without his walking stick, he bumped into P causing him to fall. Court held that D did not breach standard of care because a RPP who is blind under the same circumstance (familiar setting) would walk to the bathroom without his walking stick. Additionally, in a crowded area like the post office, a walking stick could create a more dangerous situation 2. For children: What a RPP who is a child of the same age under the same or similar circumstances will be the standard of care. UNLESS the child is engaged in an inherently dangerous activity, then the standard of care will be of an adult 9

a. Ex: if a child is driving a car at 100 mph on the highway, this is an inherently dangerous activity that children usually do not engage in, therefore, the standard of care will be of an adult b. Robinson: D was 13 yrs old, driving a snowmobile, with P being pulled on the back. Ps thumb caught in towrope and thumb was severed. D was held to an adult standard of care because when the activity a child engages in is inherently dangerous, as in the operation of mechanized vehicles, the child should be held to an adult standard of care 3. Insanity is not seen as an excuse because you cannot be judged as a RPP who is insane. Therefore, you are judged by a mentally sound person. 4. Ex: If you are insane and you wind up driving and crash into someone because of your mental disease, this will not be taken into account when determining the standard of care. The standard of care will be what a RPP would do who is driving. viii. Professional Standard of Care 1. This standard of care is used for what we traditionally think of as professionals for ex: doctor, lawyer, accountant, pilot, nurse, architects, teachers, clergy and engineers 2. Standard of Care is what a reasonably prudent person who is in same profession would do under the same or similar circumstances. Standard of care has two elements a. A reasonably prudent person in that profession who has all the required knowledge, skills and training b. The person applies that skill, knowledge and training as a RPP in that profession would 3. Heath: D was a pilot who was taking his wife and kid on the plane to go on a trip. Once they took off they immediately crashed and they all died. P (family of wife and child) sued D on ground that his conduct fell below the professional standard of care. In this case the standard of care was what a RPP who is a pilot would do in the same or similar circumstance 4. Hodges: P sued their lawyer for negligence because he served a summons according to a state statute, which was later found to be unconstitutional. Court held that D (lawyer) was not in breach of duty because a RPP who is a lawyer in the same circumstance would have done what D did. It is too much to ask, for a RPP who is a lawyer to anticipate when a court will find a statute to be unconstitutional sometime in the future a. For a lawyer to be found negligent not only do you have to show that lawyer was negligent by breaching professional standard of care, you also have to show that the lawyer would have won the case that they were representing the P in. 5. Boyce: P went to D (doctor) who placed a screw in her ankle. Several years later it began to hurt so she went back to the D, who then wrapped it up. Ps ankle continued to hurt so she went to another doctor who took an x-ray and realized that the screw needed to come out. D was not found in breach of the standard of care. a. Reason why D was not in breach was because when the other doctor testified at the trial he said that he would have taken an x ray and not just wrapped like the D. But when looking at the standard 10

of care that is not important. We need to know what a RPP who is a doctor would do in the same circumstance. Court believed that not taking an x ray was not a deviation from the standard of care. This case was tried in 1938. 6. Informed Consent another way to bring suit against doctors. They are inherently difficult, especially difficult in FL, hasnt been a successful case in over 10 years. 7. In a medical malpractice action a patient suing under the theory of informed consent must allege and prove: a. Defendant physician failed to inform him adequately of a material risk before securing his consent to the proposed treatment; b. If he had been informed of the risks he would not have consented to the treatment c. The adverse consequences that were not made known did in fact occur and he was injured as a result of submitting to the treatment 8. Morrison: rejected locality rule a. Locality rule: when using standard of care it would be what a RPP who is a doctor in the same local geographic area. It was rejected because of advancement of technology and communication. It is easy for doctors to find out what the common practice is around the country. Additionally, doctors now have to be nationally certified. e. Negligence Per Se (proving the essential elements are inherently difficult to prove) i. Duty (The Statute) ii. Breach of Duty (Violation of the Statute) 1. P must be the type of person the statute was designed to protect (intent of legislature) 2. Injury falls within intent of statute, which statute was designed to protect iii. Causation iv. Injury v. Exceptions: there is adequate justification to violate a statute when: there is an emergency (that you didnt cause yourself), when compliance would cause greater risk to the actors than if the actors were not comply with the statute, or when there is a reasonable attempt to comply with the statute but the actors incapacity makes the violation reasonable vi. Osbourne: D sold bottle of poison to P without properly labeling it. P then ingested the poison and died. P sued because it was a violation of a state statute to sell poison without proper label 1. Statute was designed to protect people who buy poison (P was this) 2. Statue was aimed to prevent the injury of ingesting poison (P suffered this); therefore P can sue using this statute for negligence per se. vii. Stachneiwitz: fight erupted between drunken patrons at a bar of Native American descent and the Ps party. P sustained severe injuries as a result (no one cold attest to how P sustained the injuries), P sued bar based off of a violation of a statute that prohibits the serving of alcohol to any visibly drunk person and prohibits the bar from allowing a drunk, loud, rowdy, etc person from remaining on premises. 1. P was within the class of people designed to protect, his injury was also that type of injury the statute aimed at preventing. However, it fails the but 11

for causation test. Because we cannot say MLTN but for the serving of the drunk person the injuries to the P would not have occurred. Cant say this because the aggressor was already drunk, therefore the serving of the alcohol is not a cause in fact. 2. Court still held in favor of the P, Flynn believes this is a racist opinion viii. Perry: P (parents of children who witnessed abuse) sued Ds (people who knew that the daycare was molesting kids). Suite was brought as a negligence per se case because the family code statute stated any person who has cause to believe that a childs physical or mental health may be adversely by abuse must be reported to police. Court held in favor of Ds because they did not want to extend negligence per se to this case because it could cause immense tort liability on people who are extremely removed from the situation 1. Possible reasons for outcome: a. Ps children were not in the class of people to be protected (the class of people designed to be protected were the actual children who were being molested) b. Can you say MLTN but for the failure to report abuse the injury would not have occurred? No and there was no proof they were injured. c. Court made policy argument not to extend this statute to civil liability because the floodgates to tort litigation would become wide open, this statute is too vague because it says cause to believe. ix. Martin: The three procedural views on Negligence per se came out of this case: 1. The Cardozo view: Once P proves negligence per se, he automatically wins the case. 2. The Majority view: Negligence per se shifts the burden to the D, D must show legitimate excuse for negligence per se, if no excuse P wins, if there is a valid excuse jury must decide if D has legitimate excuse. 3. Florida View: Negligence per se only permits a permissible inference that the jury can decide to accept or disregard. x. Zeni: D hit P when P was walking on the street, D was driving a car. P sued D for negligence, D countered suing for negligence per se because was a statue that stated pedestrians must walk on the sidewalk. Court held in favor of P because they believed P had valid excuse to disobey the statute. 1. Sidewalk was covered in snow and ice, and it would be much more dangerous for P to walk on sidewalk then to walk on the side of the street which plowed a. This is the exception when a person is allowed to disobey the statute because complying with the statute would be more dangerous f. Res Ipsa Loquitur i. Literally means the thing speaks for itself ii. This is a last ditch effort when you have no evidence 1. Its like going all in all in on the turn and you only have one out going to the river iii. MLTN this event or incident does not usually occur unless someone had a duty to exercise reasonable care and breached that duty to exercise reasonable care. MLTN the D was in exclusive control or management of the object causing injury iv. Once you bring evidence into the equation you move out of res ipsa, res ipsa is all about lack of evidence and it satisfies the duty and breach of duty elements inside of negligence. 12

v. Ex: single car crash into tree, that is all we know. Can you say MLTN single car crashes occur into trees unless driver was negligent? No. Driver had exclusive control over the car. This is an example of Res Ipsa. vi. Byrne: P was walking on sidewalk past Ds shop; a barrel of flour fell upon P from roof Ds shop, which seriously injured P. No other evidence 1. Can you say MLTN that barrels of flour fall from roofs unless someone acted negligent? No. MLTN did D have exclusive control over the handling of the barrels of flour? Yes. Therefore this is res ipsa. vii. Larson: P was walking down street when a chair fell on him that came from a window in a hotel. D (hotel) was not able to be brought on negligence charges based of off the doctrine of res ipsa 1. Reason: D did not have exclusive control or management of furniture viii. Ybarra: P went it in for surgery, when we awoke is right arm and shoulder were in pain, this led to paralyses of the muscles in Ps shoulder. P sued using the doctrine of Res Ipsa 1. Cant say MLTN that it was anyone of the health staff on their own, there is not shared responsibility because each of them do something different. Res Ipsa cant be applied to all of them because one of them would be enough for the injury. 2. Exception: Interdependence of function allows exclusive control to be extended to all of them, not shared responsibility and not joint responsibility. This only applies to select groups (besides surgery teams this has only been extended to bottle cap manufactures, dynamite, and dynamite caps.) 3. Res Ipsa under the interdependence of function shifts the burden to the Ds who had any control over Ps body or the instrumentalities that might have caused injuries. Ds will be called upon to meet the inference of negligence by giving explanation of their conduct. ix. Sullivan: P was riding in a truck that swerved off highway and overturned which killed P. P sued D (driver) using Res Ipsa; P claimed that Res Ipsa required jury to find for P. 1. Court held that Res Ipsa merely case for injury and permits the jury to choose the inference of res ipsa or disregard it. x. Turkey example from class 1. 9 moms made 9 separate turkeys. Some of the moms made a turkey salad using all 9 turkeys. P got ill from eating the turkey salad. Can P hold all 9 moms liable under res ipsa a. No, cannot hold all 9 moms liable under res ipsa because it is just as likely that it could be anyone of them. Can hold the some of moms liable that made the turkey salad because they had concert of action of making the salad. MLTN does someone get sick from eating turkey salad unless someone is negligent? No. Did the some of moms have exclusive control over the making of the turkey salad? Yes. Hence the some of the moms can be held liable under Res Ipsa. xi. Theories to prove exclusive control with Res Ipsa when there are multiple Ds 1. Vicarious liability: employer/employee or principle agent has to look at employees in scope of employment or that agent is acting under direction of the principle 2. Concert of Action: when all the parties are doing the same thing (turkey salad example) 13

3. Interdependence of function: (Ybarra), all wrongdoers are dependent upon each other 4. Shared Responsibility: More than one person led to the injury without the ability to identify the wrongdoer. 5. CAUSATION: a. Cause in Fact: Its essentially proving cause and effect (you never get here unless you have already proved duty and breach of duty). It can be an act or omission. i. Cause in Fact Test for a single defendant: 1. (THIS IS THE BEST TEST) MORE LIKELY THAN NOT, BUT FOR, the defendants breach of duty, injury would not have occurred. a. Ex: P walks and slips on Ds slippery floor b/c it hasnt been cleaned. Can you say, more likely than not, but for the Ds failure to clean the floor, P wouldnt have fallen? YES, because the floor would not have been slippery if D cleaned it up earlier. 2. (THIS IS 2ND BEST) MORE LIKELY THAN NOT, Ds breach of duty MULTIPLIED OR INCREASED THE RISK of injury to P. a. Ex: D is a landlord in a bad neighborhood who doesnt install deadbolts on his tenants doors, only has a flimsy bathroom door type lock. P is a tenant, and their apartment gets broken into. You cannot say, more likely than not, but for the Ds not installing deadbolt, the Ps apartment would not have been broken into. But you can say, more likely than not, the failure of D to install a deadbolt increased or multiplied the risk of Ps apartment getting broken into. You can say this because not having a deadbolt makes it easier for someone to break in. ii. Cause in Fact test for MORE THAN 1 Defendant: 1. MORE LIKELY THAN NOT, BUT FOR BOTH Defendants breach of duty, the Ps injury would not have occurred. NEITHER one alone is enough to satisfy the but for test, need both Ds. a. Ex: D1 hits D2s car, D2s car swerves into oncoming traffic and hits P. Need both Ds actions to injure P. You can say, more likely than not, but for both the Ds breaches, P would not have been injured, because in order for P to have been hit by D2s car, you needed D1 to first hit D2. 2. MORE LIKELY THAN NOT, BOTH DS MULTIPLIED OR INCREASED RISK OF INJURY to Plaintiff. a. Have to show that each D is a substantial factor in causing the harm. EITHER one alone is enough. b. Ex: 2 fires merge and burn down Ps house, but dont know which b/c they merged. B/c either one alone is enough, you cant use but for test here, but you can say, more likely than not, the two fires that merged multiplied or increased the risk that Ps house would burn down. iii. Exceptions to cause in fact test 1. Only use when other tests do not work. These exception tests are only for multiple Ds. a. Summers v. Tice test: P was shot while hunting when D1 and D2 both shot in Ps direction, and one pellet hit him in the eye. i. Can you say, more likely than not, but for shooter 1, P is not injured? NO (same for shooter 2). Can you say, shooter 1 alone multiplied risk to P? NO, b/c one bullet hit him (same 14

iv.

v.

vi.

vii.

for shooter 2). Can you say but for both, P would not have been shot? NO, b/c one bullet hit him. Can you say, more likely than not, both Ds increased the risk of Ps injury? NO, b/c only one bullet hit him. ii. Join all possible Ds and show more likey than not, one of them caused the harm. Once that is done, the burden shifts to Ds to show that it is not them. Ds would need to show that they didnt cause the harm. Must make sure that these are the only people who could have committed the tort. b. Enterprise liability: product that caused injury manufactured by small number of Ds. Have to get them all into court. This hardly ever happens. i. Ex: there are only 3 companies that make a drug so must get them all into court. c. Market Share liability: P must sue enough manufacturers to cover a majority of the market. Each manufacturer is then responsible for their percentage of the market. i. Ex: Sindell: Ds covered 90% of market, so could sue all of them and they had to pay their %. 1. Problem is that you have to get a large enough share of the market and a large enough field. Perkins: P was passenger In car, the car entered the railroad tracks at 6:02 am. Ds train hit the car, killing the P. Train was traveling at 37 mph when it was supposed to be traveling at 25 mph. P sued based off the fact that train was traveling too fast and therefore hit P. Court said there is no cause in fact b/c even if the train was traveling at 25 mph, it still would have hit the P. 1. More likely than not, but for the train traveling at an excessive speed, P would not have been injured. Cant say this, b/c he still would have been hit at 25 mph. a. Flynn says the court is full of shit, b/c if they were traveling at 25 mph they would not have been at that intersection at 6:02am. Reynolds: P was a fat lady, who was walking down unlit steps that had no railing, and she slipped and fell while rushing to catch Ds train. You cant say more likely than not, but for Ds failure to light and put handrails on the stairs, P would not have been injured (P could have still fallen, people slip down stairs all the time). But, you can say, more likely than not, the failure to put hand rails and light stairs multiplied or increased the risk of injury to P, b/c without these precautions, it is more dangerous to travel the stairs. Gentry: P was visitor on friends farm. Mr. Bacon was walking to a staircase in Ds house carrying a loaded rifle. When he went to ascend the stairs, he fell and accidently shot P in the head and killed her. P brought suit against D b/c D had a hole in one of the stairs, P alleges this is what caused Mr. Bacon to fall and shoot her. 1. But for and increased the risk test do not work here b/c there is a lack of evidence. The court only knows that Mr. Bacon fell when he was about to climb the stairs, but dont know why. Therefore we cannot say more likely than not that the hole in the stairs caused or increased the risk of injury Kramer: P was injured by a piece of glass that fell from Ds hotels ceiling which cut Ps head. The cut didnt heal and P developed cancer on that same spot. He sued D saying that the glass that fell from the ceiling caused cancer. 15

1. Cant say but for the glass falling and cutting Ps head, P would not have gotten cancer b/c the cause of cancer is unknown. 2. Cant say that the glass falling from the ceiling and cutting Ps head increased or multiplied the risk of cancer, b/c the cause of cancer is unknown. a. The fact of the injury is never cause in fact. You are confined to what you can prove. Association is not causation. If P would have sued for damages for the cut received from the glass falling from the ceiling, this would have been easy to prove using cause in fact. viii. Herskovits: Ds failed to diagnose Ps wife with lung cancer on first visit. b/c of this, Ps survival chances dropped from 39% to 25%. Can you say, more likely than not, but for Ds failure to diagnose lung cancer on the first visit, she would have survived? NO, b/c at that point she still had 35% chance. Same thing with the increased risk test. But you can say, more likely than not, but for Ds failure to diagnose Ps lung cancer on the first visit, the P lost a chance a survival. Can say the same thing for multiplied risk test. 1. Loss of chance can be measured in cause in fact and is accepted in tort law. ix. Concurrent Causes: 1. Anderson: fire which caused by Ds negligence merged with another fire that was caused by unknown origins. Ps house was burned down from this fire. a. Cant use but for one test, b/c either one could have done it, and cant use but for both test b/c either one could have done it alone. b. Can say, more likely than not, both fires increased or multiplied the risk of Ps house burning down, b/c both were contributing factors and either one more likely than not could have been enough. b. PROXIMATE CAUSE: i. How far do we extend liability? ii. You never get to proximate cause unless you have proven duty, breach, and cause in fact iii. 2 ways to construct argument for PC, CARDOZO and ANDREWS approach. Must do both on exam. iv. CARDOZO approach (FORESIGHT APPROACH): 1. Look from Ds original act to see what is foreseeable 2. Ask would a RPP in Ds position at the time of the act would foresee Ps injury. 3. The court stands in Ds shoes in time of the act and looks forward to see if injury was foreseeable. 4. Steps of analysis: a. Determine Ds breach b. Characterize risk of that breach c. Determine the zone of danger i. Zone of danger is anything that is at risk from Ds breach d. Determine if the zone of danger includes the P i. If P falls within zone of danger, that means injury to P is foreseeable and therefore D is the proximate cause of injury. v. ANDREWS approach (HINDSIGHT APPROACH or chain of events): 1. is there an intervening act? 2. If there is you want to look at it from Ps perspective 16

3. The court stands in shoes of P at the time of incident and looks backwards at Ds breach of duty to see if there is an unbroken chain of events 4. Look at remoteness in time, space and distance 5. Steps of analysis: a. Look for any intervening acts. Is there a presence of such an act? i. Start at P and go backwards and determine what constitutes an intervening act. If there is an intervening act that supersedes, it will break chain of events and D will not be liable. b. Remoteness of time, space, distance i. Time: want to look at the breach of duty and this is time on the clock (seconds, minutes, hours; the longer, the more remote and therefore LESS LIKELY to be the proximate cause.) ii. Space: tangible objects between the P and incident. For example, chair in between. iii. Distance: actual distance that is between the breach and the injury. iv. Public policy: a higher set of standards. This determines whether you should or should not hold D liable for breach of duty. 1. Sovereign immunity v. Common carrier? Held to a higher standard. vi. INTERVENING ACTS to determine if intervening acts are foreseeable, use Cardozo analysis from original Ds perspective to determine if act and/or injury are foreseeable 1. Act of god: act and injury have to be unforeseeable to supersede original actors liability. a. Ex: hurricane in FL is foreseeable, but an earthquake in FL is unforeseeable b/c it never happens. 2. Negligent act: act and injury must be unforeseeable for this type of intervening act to supersede original actors liability. a. Must do mini analysis on the elements of negligence. 3. Criminal/intentional act: only act has to be unforeseeable to supersede original actors liability a. Must do a mini analysis of the intentional act, for example, if intentional act is a battery, must define battery first. 4. Lawful act: both act and injury need to be unforeseeable for act to supersede original actors liability. 5. Strict liability: the act and the injury need to be unforeseeable to supersede Ds original actors liability. vii. Intervening act cases: 1. Derdiarian: D1 is contractor of construction site, who negligently failed to put up barricades around work site which was a hole on the side of a road. D2 is driver who negligently failed to take his seizure medicine and had a seizure, drove into work site, hitting P which caused P to fly up in the air and then land in molten hot enamel, which lit him on fire, but P survived. a. D1 contended that D2s action should supersede D1s negligent act of not putting up barricades. Court did not agree b/c standing in D1s shoes, it is foreseeable that not installing a barricade around the work site would make the workers inside the hole at risk to cars 17

that lose control and drive into hole. Since this act is foreseeable, the intervening act does not supersede and therefore D1 is still liable. 2. Watson: D railroad was negligent in securing a tank car full of gas which derailed and spilled gas onto the street. A person lit a match and it fell on the gas, causing an explosion which injured P. it is contested whether the person who dropped the match did so intentionally or accidentally. Court held that this needed to be determined in order to decide if this intervening act was unforeseeable and therefore superseded. If this was a criminal act, court said that it would supersede b/c D could not foresee that someone would purposefully light the gas on fire. 3. McCoy v. American Suzuki: a. Defines rescue doctrine: allows injured rescuer to sue the party which caused the danger requiring the rescue in the first place. i. If you are a rescuer, your injury is always foreseeable and therefore PC is easy to prove. Property loss in the course of a rescue is foreseeable as well. ii. Doesnt apply to emergency personnel b/c theyre being compensated already. iii. Cardozo: peril invites rescue iv. If you have a good faith belief that someone is in peril and you go to rescue and get injured, even if they were not in peril, you can still recover under the rescue doctrine b/c you had a good faith belief. v. With intervening acts, malpractice is always foreseeable, but gross malpractice is not. 1. Ex: you go to hospital b/c of injuries from D, doctor aggravates injury b/c of malpractice. This does not supersede b/c its foreseeable. You go to hospital from injuries to hand and they amputate your leg. This is gross negligence and supersedes. 6. Joint Tortfeasors a. Liability and Joinder of Defendants: i. Bierczynski v. Rogers (concert of action): D1 and D2 were involved in an auto race. D1 hit P, P sued both Ds. D1 wanted to be excused from the suit b/c he did not cause any actual damage to the plaintiff. Court held that D2 could not be excused b/c his action of racing w/ D1 made this a concert of action case, D2 was needed for the actual injury b/c if D2 wasnt involved, they would not have been racing, which was the cause of the accident. Both are liable for the entire amount, so P can choose to only seek money damages from one, and one would be responsible to pay for everything, even if the person being sued didnt do the damage. This means that this D could make a contribution claim against the other D to extent that they are allowed 1. Joint and several liability: when P sues both Ds when joint and several liability apply, this means that P can receive entire damages from one of the Ds even if they are not solely responsible for the action. P should go after D with the most money. a. When acting in concert (concert of action), even though one actually caused the injry, they are both jointly and severally liable.

18

b. Joint and several liability applies in concert of action cases, or in the circumstance of shared responsibility, or indivisible injury i. Shared responsibility: vicarious liability, employee/employer relationship, both Ds could have shared responsibility when there is not concert of action. Ex: store owner in a shopping mall and shopping mall owner, sign is hung out of store that falls onto a walking pedestrian. ii. Indivisible injury: death is most common indivisible injury. Ex: P is killed when one car runs over him and another car runs over him. Both Ds would be joint and severally liable. iii. For Ps joint and several liability is great b/c its easier to recover. iv. FL no longer has joint and several liability, you pay to your percentage that you are at fault. Most states do not have joint and several liability anymore, must have D pays % that they are at fault. b. Satisfaction and release: i. Bundt v. Embro: D1 (driver of the first car), D2 (driver of second car), and D3 (contractor repairing highway and negligently obstructed view of the sign). P sues all the Ds. P fully recovers against D3, then tries to recover again from D1&2. THERE CAN BY BUT ONE SATISFACTION. Once you fully recover, you cannot recover again. Doesnt matter which D pays. ii. Cox v. Pearl Investmment Co.: P slipped and fell at Goodwill, Goodwill agreed to pay P $2,500 if P agreed to sign covenant not to sue w/ goodwill. P then sued owner of the building for the additional money that it wanted. The building owner claimed that the covenant not to sue barred P from suing building owner. Court held that covenant not to sue only applied to goodwill, not building owner. 1. Covenant not to sue is only applicable to the parties in the agreement. In this case, P and goodwill. iii. Release: a extinguished agreement: 1. Old rule is if you sign a release w/ one D, it applies to all Ds. So, P better have received enough money before signing this b/c once you sign, youre screwed as a P. 2. Modern rule: if you release D1, havent released other Ds, only released D1. 3. Only way release can become void is through fraud. c. Elbaor v. Smith i. Mary Carter agreement: essentially fraud, no longer legal. 1. P agrees to settle w/ one D, and P then sues other Ds. if P gets the amount of money that they want form other Ds, the D that signed the mary carter agreement is repaid by the P. 2. High/Low: P and Ds meet before trial, they agree that P is guaranteed a low amount and if P wins in court, they are limited to the high amount in the agreement. These are legal. a. Ex: P agrees w/ D if they lose the case they will receive $100K, but if P wins the case, no matter how much the jury awards P, P will only receive $500K. d. Contribution & Idemnity i. Knell: P sued taxicab owner for injuries sustained in a car accident. Taxi cab owner then sued driver for contribution, claiming that driver was negligent in 19

driving. This can be done in one lawsuit, or two, depending on what D wants to do. 1. Contribution is the right of one joint tortfeasor to sue the other for a proportionate share. This is among negligent tortfeasors (does not apply to intentional torts). 2. Idemnity: 100% contribution a. Ex: if youre injured in a car wreck, insurance co. will pay you all your damages. This is usually done by contract. e. Bruckman v. Pena: P involved in an accident where 1 st injury of 1st accident was aggravated. 2nd accident occurred a year later, we now have 1st injury and a 2nd injury. In order for P to recover from driver of the 1st car that caused 1st injury, P needs to apportion damages to the injury from the first accident in injury to 2 nd accident. i. Ex: if arm was injured in one crash, and a year later arm was further injured due to weakened condition, P will have to show what portion of the injury is due to D1s accident. This is how P will be able to recover proper damages from D1. f. Mitchie v. Great Lakes Steel: Ps are 37 people from 13 diff. families. D are 3 factories across river emitting pollution. If it is all the same type of pollution, it is easy and this is an indivisible injury and Ps are jointly liable. However, the pollutants are all different types, so it makes it much more difficult to show which D is liable for injury. i. Sometimes torts will call this concert of action so P will recover. However, indivisible injury is the easiest way to go. If P is sick, it is an indivisible injury. All Ds contributed to this, so they are all liable. Ds will counter that the sickness was not due to their pollutant. 7. FAILURE TO ACT: this could be negligence. This is complete omission of action of somebody who had a duty to act. a. Usually the duty to act is established by some type of special relationship i. Ex. Emergency room doc does nothing when a patient is brought in with a gunshot wound, or parent who doesnt save child when drowning in a pool. b. Hegel v. Lansgam: girl goes to college, gets involved with wrong crowd, and becomes a major slut. Parents sue the university b/c they did nothing to stop this (failure to act). i. Court does not buy the parents argument, no duty by school to make sure daughter does not become a slut. ii. This case is very different from a university not properly securing the dorms, and people who live in the dorms are harmed. University has a duty to keep their school safe, but not to be a nursery school to make sure students behave. c. Ayres: kid was on escalator, got his hand caught on Ds escalator. D did not stop escalator for a considerable time period, making childs injury much worse. i. There are circumstances where a duty is imposed to help (as in the present case, D needed to act swiftly to turn escalator off) ii. Certain special relationships define when there is a duty to act, usually relationships built on trust. These are: common carrier/passenger, innkeeper and guest, temporary legal custodian and child, occupier of land and entrant onto land (trespasser, licensee, invitee), or if you put someone in greater peril than they were originally. 8. NIED: a. Can claim emotional distress from negligent acts. Emotional distress damage is called a parasitic damage. It is connected to physical injury. All states allow this. b. Question arises when there is a claim of emotional distress from negligence when there is no physical damage.

20

c. Daley v. La Croix: D flipped car, hit a pole, caused an electric explosion which then caused physical property damage. But, P, who was never physically injured, claims emotional nervousness and other fucked up shit. i. 5 diff ways a court could handle this: 1. Absent physical injury, cant recover for NIED. This is most conservative approach, but can screw over people who actually suffered emotional distress. 2. Whatever you can prove you can get. Does not matter if there is physical injury. Usually requires medical testimony. 3. If you have physical injury, you can prove emotional distress 4. Even without physical injury, if you can prove physical manifestation of emotional distress, then you are allowed to recover (ex: twitch, insomnia, etc.) 5. Even if there is no physical injury, if you can show physical impact, then youre allowed to recover (ex: impact can be dirt kicking up. In one case, it went as far as dust. FL is under this approach) ii. Thing v. La Chusa: P mom was told by daughter that her son was hit by a vehicle. She ran to the scene shortly after and sees son lying on the street bloody. She claims ED. 1. NEARNESS NOWNESS CLOSENESS: if you fit nearness, nowness, closeness, you will be able to recover for ED as bystander. a. Nearness: 3rd party actually viewed it at the time it occurred or came upon the scene reasonably promptly, must have physical nearness. b. Nowness: contemporaneously with the actual observation, the person suffers emotional harm (emotional harm happens when they see it.) c. Closeness: family relationship, relationship must be familial, cant be a fiance or significant other. d. Exceptions to this is handling of dead bodies. This is the stretching of the nearness element. Also, telephone calls (ex. A doc fucks up and says you have AIDS via telephone, and then calls back and says OOPS!) 9. Owners and Occupiers of land: a. There is a limitation on the duty element with regard to property owners. b. 3 types of people when they are on your property. i. Trespassers: dont have permission to be there. ii. Licensees: have permission to be there, but reason for being there is not of benefit to the landowner iii. Invitees: customer in a store or someone in a public park. The person who primarily benefits from an invitee is the person who invited them. Ex. Nova with me, they get my fucking $. c. When we look at this duty, can divide it into 3 categories: natural conditions on the property (river, lake, etc), artificial conditions (anything added to land, e.g. merry go round), and activities (e.g. sports being played on land) d. Taylor: tree falls onto public road, and P runs into it. i. With trees that fall outside of your property, the only duty you have is not to intentionally injure someone. ii. If property is next to a public roadway, you have a duty to exercise reasonable care not to have it fall down. This is an exception. 21

e.

f.

g.

h.

i.

1. Duty to exercise reasonable care not to have tree fall down depends on facts. If tree has exterior signs of rotting, then you need to do something. Owner has a duty to look, or duty to observe. Salevan v. Wimington case: i. With an artificial condition, must exercise reasonable care. in this case, there were several fly balls flying out of the baseball park every day, so fence needed to be built higher. They may have to build it higher again if the first reconstruction proved to be insufficient. ii. No clear answer, have to keep exercising reasonable care. iii. With artificial conditions, owner has duty to exercise reasonable care to people outside the property. With natural conditions, it is just to people on the property. ON THE PREMISES: trespassers: i. What is the duty of care in regard to trespasser? ii. No duty owed to trespasser, just that you cant intentionally injure them. iii. Duty is when you discover them, must warn them of hidden or concealed dangers that owner actually knows of. 1. To constitute a hidden or concealed danger, it would not be apparent to a reasonable person. iv. If trespasser is a tolerated trespasser (kids cutting through your grass on a regular basis), they are treated the same way as a discovered trespasser. v. Note: the above info is for natural and artificial conditions. As to activities, it is reasonable care. ON THE PREMISES: licensees i. Primary purpose of being there is not the benefit of the landowner, e.g. social guest. ii. Theres a duty for property owner to warn of concealed dangers that owner knew or should have known through the exercise of reasonable care. iii. Duty to discover hidden danger, but dont have to fix it, just have to warn them (with an invitee, its different, b/c you would have to fix it eliminate the risk) iv. MUST WARN A LICENSEE OF HIDDEN DANGERS that through the exercise of reasonable care you would know of. This is for artificial and natural conditions. v. Barmore: keeping the son in the basement was considered an artificial condition, and D through the exercise of reasonable care, could not have known that crazy son would have come up and stabbed him b/c he hadnt done something like this before. vi. For licensees, must warn of dangers you would have found if exercising reasonable care. ON THE PREMISES: Invitees i. If the person could buy something, then they are an invitee. Ex. If you walk by a store, you have a chance of buying something, which makes you an invitee. This makes the category of licensee shrink. ii. If you ask business owner to use the employees only bathroom, you are a licensee while in the bathroom, and an invitee the second you leave it. iii. Natural and artificial conditions duty to exercise reasonable care. within the duty, have to warn or make safe any concealed dangers that you know about, and have duty to discover. 1. Must fix the danger. Children: only issue is when they are trespassers i. Attractive nuisance doctrine: landowner always has a duty to discover kids who are trespassing, and a duty to exercise reasonable care to discover kids. 22

ii. Even through exercise of reasonable care, landowner could nto discover that kid was trespasser, then landowners duty of natural and artificial stuff is attractive nuisance, but as to activities its still duty to exercise reasonable care. for this attractive nuisance doctrine: 1. Iook at the things that attract kids 2. Could a landowner through reasonable care determine that a child would be lured into the condition. 3. The kid who is lured would not appreciate the magnitude of the risk involved. iii. If these 3 are met, then the attractive nuisance doctrine applies, and reasonable care must be exercised. iv. 2 exceptions to the attractive nuisance doctrine: 1. Only covers artificial condition 2. The open and obvious danger a. You will not be responsible for the open and obvious dangerous artificial conditions in the eyes of a child. 10. WRONGFUL DEATH statute: a. Wrongful death: if D is the cause of death, the survivors have a right to bring a wrongful death lawsuit. Minor children, wife, dependent parents, these types of people will be enumerated in the statute. Beneficiaries cannot sue under emotional distress or any other non-economic damages of the dead person (the emotional distress of the victim while he was lying in pain before he died). Ex. Im run over by a car and I die. My wife, kids and parents now have an action against D who killed me under the wrongful death statute. However, they cannot sue for my emotional distress. b. Wrongful death claim. Can recover for the emotional distress of the survivors (loss of consortium or companionship). Survivors can sue for economic loss too, which is the cost of support of the surviving spouse. They can also recover funeral and burial expenses. Minor child in FL for wrongful death is 25 or younger. c. Survivor claim: if a doctor malpractices on me, and I have a claim for malpractice, and I die (not b/c of the malpractice, but because of something else) my claim survives, b/c it wasnt a negligent act of the doctor that killed me. i. Ex. I had malpractice done on me, I now have ailments, but then I am hit by a bus. 1. Claim against bus driver would be wrongful death claim brought on by beneficiaries. And, the malpractice claim that didnt kill me is a survivor claim. d. Contributory negligence on the part of the decedent is available in both actions where contributory negligence of the beneficiaries in a wrongful death claim would also be available. 11. CONTRIBUTORY NEGLIGENCE: This is negligence on the part of the plaintiff a. Conduct on the part of the plaintiff is called contributory negligence (contributory negligence defines conduct on the part of the plaintiff that is negligent TERM OF ART) b. Butterfield v. Forrester: D negligently left a pole in the middle of the road, and plaintiff riding his horse in full speed rode right into the pole. i. Intervening act in this instance is the plaintiff crashing into the pole ii. P was contributorily negligent b/c he wasnt paying attention when he hit the pole in the middle of the road. (must do whole negligent analysis when doing contributory negligence) iii. To determine if contributory intervening act supersedes, do normal intervening act analysis (foreseeability from original D using Cardozo approach) 23

c. The majority rule is that contributory negligence is not a bar from recovery, it is comparative. d. Comparative negligence defines how much everybody has to pay. Ex. D 60% negligent, P 40% negligent. e. Last clear chance doctrine i. This doctrine applies to jurisdictions where contributory negligence bars Ps recovery. This is the exception. ii. if P can show more likely than not that D had the last clear chance to avoid the injury to the P, then the contributory negligence on the part of the plaintiff will not bar Ps recovery. iii. Ex. (HELPLESS P): P faints as crossing the street (neg. b/c didnt take meds), D driving and runs over P (negligently driving) 1. Observant Defenant: saw P in the middle of the road so had LAST CLEAR CHANCE to avoid injury P NOT BARRED FROM RECOVERY 2. Inattentive D: if D had exercised reasonable care and saw helpless P, he HAD THE LAST CLEAR CHANCE to avoid injury to P P NOT BARRED FROM RECOVERY. iv. Ex. (INATTENTIVE P): P licking an ice cream cone and worried about ice cream falling so not paying attention, and D hits P with his car. 1. Observant Defendant: had last clear chance to avoid harming P P NOT BARRED FROM RECOVERY 2. Inattentive Defendant: both P and D are equal (both not paying attention), so court says the doctrine of last clear chance doesnt apply. P is contributorily negligent BARRED FROM RECOVERY. f. Mcintyre v. Balentine: Ds neg act is speeding, Ps contributory neg act is drinking. Some states say if percentage of fault is above 50% they are barred from recovery (50% rule). i. There are pure comparative negligence states which means that you pay to the percentage of your fault. 12. ASSUMPTION OF RISK a. EXPRESSED ASSUMPTION OF THE RISK: it is written, ex. On the back of a sporting event ticket. Idea is that you are releasing the potential D. if the contract that you signed is valid and your injury falls within the assumption of the risk, you are barred from recovery. b. National fitness case: when P signed up for gym membership with D, D had P sign an exculpatory clause which essentially is like a release, so P cannot sue D. i. It was expressed assumption of risk. Therefore P cant sue D b/c it was valid and didnt violate public policy. (Ex. Didnt violate public policy b/c P could go to another gym, compare with emergency room, this would be a diff. story and the K would be invalid) c. IMPLIED ASSUMTPION OF THE RISK: i. In order for D to make out implied assumption of risk, they must prove more likely than not that this P subjectively understood the risk, knew of the risk, and the magnitude of the risk, and choose to take on the risk anyway. ii. Implied assumption of risk is through conduct. iii. Rush: P was lesee of Ds property, D had an outhouse that P could use. P went to use the outhouse, fell through floor. 1. P did not act negligently going to the outhouse. D claiming that P impliedly assumed risk by going to the bathroom in the outhouse. a. First, must have risk here, the outhouse 24

b. D must prove this particular P subjectively understood the risk, knew the risk, and the magnitude of the risk. DONT HAVE THIS HERE, b/c P didnt know the risk that the floor would fall through b/c there were no visible signs of deterioration. 13. STATUTE OF LIMITATIONS: a. The time period within which a person must file a lawsuit. If they do not they are barred from filing one. b. Most states start the SOL once the injury is discovered. c. If you hear that SOL is tolled, that means its stopped running. This happens sometimes when person who is injured is a minor, then it is tolled until they reach majority 14. Statute of repose a. This sets out a time frame within which, no matter what, a case must be filed. b. SOL can be tolled but SOR is not. 15. VICARIOUS LIABILITY: employer can be held directly responsible for the acts of their agents in three situations which is not under vicarious liability. These are direct causes of action, have nothing to do with vicarious liability. They are Negligent hiring, negligent supervision, or negligent retention. a. Vicarious liability liable for acts of someone else. b. Respondeat superior: employer/employee, principal/agent, master/servant c. Brussard v. Minimed: company hired someone to come in and do pest control spray. Employee gets sick at work, D employer says you should go to the doctor (this does not exclude D from liability). Employee drives home and hits another car b/c she is light headed from pest spray. Person who is his is P, and is suing employer. No evidence that employer acted negligently towards employee. P trying to hold employer liable when they did nothing wrong. For vicarious liability to attatch to employer, employee must be acting WITHIN THE COURSE AND SCOPE of employment. Employee is coming home from work, this is commuting, which is usually not in scope of employment, however, b/c of exceptions, P allowed to recover. d. Analysis must go into what is inside course and scope of employment. This is proven factually. e. Commuting to and from work are not within scope of employment, except in two circumstances. i. If risk is created at work, it is extended to the person when they leave (like the case above) ii. If a situation occurred in a circumstance that is not so startling or unreasonable and there is a risk that could create a risk outside of work (ex. Employer tells employee to go home b/c he is out of it, b/c he is on xanax. Employer knows this but still tells employee to drive home anyway.) f. Oshea case: Employee is using a company car to drop off football tickets to other managers. When he is pulling into service station he negligently crashes into another car. P sues employer and wins b/c this is considered within employment b/c employee driving company car. i. Difference between DETOUR and FROLIC if FROLIC, its outside scope of employment. If DETOUR, it is within scope of employment. 1. A detour is a deviation that is related to employment so that it is within the scope (on company route, stop to get gas). 2. A frolic (on company route, but stopped to go to a strip club) 3. 6 factors to determine If detour or frolic: a. Employees intent b. The nature, time and place of deviation c. The time consumed in the deviation 25

d. The work for which the employee was hired e. The incidental acts reasonably expected by the employer, and f. The freedom allowed to the employee in performing his job responsibilities. 16. INDEPENDENT CONTRACTORS VICARIOUS LIABILITY: a. With a true independent contractor, employer not liable for your tortuous acts, but in order for them to be an independent contractor, employer cannot control details of employment. The employer only hires for a result. i. Just because someone is labeled an independent contractor does not always mean that they are really one. 1. Ex: at hospital, doctors are labeled independent contractors, but they wear the hospital logo. And the hospital has guidelines for the doctors to perform a certain way. Therefore, they are not really independent contractors and vicarious liability will apply. b. NON-DELEGABLE DUTY: b/c of nature of particular activity, cannot hide behind shield of hiring an independent contractor i. The duty can be delegated to another, but the responsibility for a negligent failure remains with the owner. There is no obvious criterion to determine what duty is delegable or not, but as a matter of public policy, one cannot avoid particular responsibilities by hiring someone else to discharge them, b/c of the importance of the duty. 1. Ex. Hiring independent contractors to build a dome over a stadium. If the dome collapses during a game due to no fault of the stadium owner, he will still be liable b/c this is a non-delegable duty. There was a risk of building the dome, b/c it exposed people to harm. ii. Inherently or intrinsically dangerous activities when there is a peculiar risk, it will override the independent contractor shield, and make the employer liable. The contract for performance of illegal acts are always vicarious liability. 17. STRICT LIABILITY - Abnormally dangerous activities a. Liability without fault. Not looking at conduct of defendant. If you engage in this abnormally dangerous activity, as a matter of law, liability attaches to the activity. b. Six factors to determine if the activity is an abnormally dangerous activity. This is the risk/utility analysis. If risk outweighs utility, it will make the activity, it will make activity abnormally dangerous. ORDER IS 3,5,4,6,1,2 in order of importance, 3 most important. i. Existence of high degree of risk (LH) ii. The harm that would ensue if the risk materializes (SH) iii. Such accidents could not be prevented by exercise of reasonable care iv. Activity is not a matter of custom usage v. Appropriate Location appropriateness of the location weighs against strict liability. vi. Is the value of the activity to the community high? Luxury v. necessity c. THREE AND FOUR ARE MOST IMPORTANT. Then comes five and six. One and two are least priority. d. Artificial water direction is considered strict liability (ex. Reservoir, man made lake, man made canal). e. For strict liability analysis, do abnormal dangerous activity analysis instead of duty and breach of duty. Cause in fact and proximate cause come after. f. Contributory negligence can be a defense to strict liability. It is applied the same way that it is applied to negligence cases.

26

g. For Cardozo analysis in proximate cause, the characterization of the risk comes from the abnormally dangerous activity (so for blowing up a building, it would be flying debris). 18. Strict Liability with Animals: a. Some states say owners of animals can be strictly liable for the injuries that their animals inflict on someone else. Usually with a dog. If you fence In your property and someone elses animal comes in and bites you it is strict liability to the owner of the other animal. If you fence in your animal and your animal gets out, no strict liability for you b/c you fenced your area. b. Wild animals = strict liability all the time, exception is zoos (then you would have to prove negligence) 19. PRODUCTS LIABILITY: a. 3 Theories for Recovery for Products liability i. Intentional battery or trespass are most common ii. Negligence must do negligence analysis iii. Strict liability b. 3 diff types of defects i. Manufacturing ii. Design iii. Warning and Directions. c. Strict Liability with PRODUCTS i. 402A RULE Special Liability of Seller of Product for Physical Harm to User or Consumer 1. One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby cased to the ultimate user or consumer, or to his property, if a. The seller is engaged in the business of selling such a product, AND b. It is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. 2. The rule stated in Subsection (1) applies although a. The seller has exercised all possible care in the preparation and sale of his product, AND b. The user or consumer has not bought the product from or entered into any contractual relation with the seller. ii. From here, must identify and fully explain why the product is either a manufacturing, design, or warranty defect (could be more than one) iii. MANUFACTURING DEFECT: 1. Look at the product and decide whether the product with the defect lives up to the reasonable consumers expectation. ex. Coke cane w/ knife sticking out of mouthpiece; a reasonable consumer looking at this product with the defect would not live up to the consumers expectation b/c drinking out of this coke can would cause severe injury making the defective condition unreasonably dangerous. Therefore, this defective condition which is a manufacturing defect is unreasonably dangerous. 2. Once you prove manufacturing defect, would a reasonable consumer who is exposed to this product expect it to be in this condition? This is the test. If the answer is no, then it is unreasonably dangerous.

27

a. Example of manufacturing defect that is not unreasonably dangerous belt that doesnt have a belt buckle. This isnt unreasonably dangerous b/c this wont create injury. iv. DESIGN DEFECT: 1. To determine if there is a design defect you have to do the risk/utility analysis. This is a balancing test. Any one factor can tip the scale in favor of risk or utility. i. Usefulness and desirability of the product. Usefulness is a much stronger argument if its a necessity. This weighs in favor of utility. ii. Safety aspect of the product, the LH and SH that could be caused from the use of the product. 1. The higher this is, the more it weighs towards risk over utility. iii. Availability of a REASONABLE FEASIBLE alternative design. This is one of the most important factors. 1. This is shown with state of the art evidence. D will bring up 2 counterarguments, that this product was the state of the art, and that the reasonable feasible alternative is a PRODUCT ENHANCEMENT. P wants to anticipate this defense by saying what really was state of the art at the time by expert testimony, and what is the reasonable feasible alternative. iv. Ability to eliminate risk without impairing the usefulness. 1. Deals with cost. If eliminating the risk makes the cost unreasonable, then this helps Ds argument. v. Users ability to avoid the risk of injury by use of reasonable care 1. Did consumer use the product properly. vi. Can manufacturer spread the risk by raising the price of the product or able to buy insurance to spread the risk. 1. If he cannot, this will weigh in favor of the D. vii. The users awareness of the danger associated with the product (open and obvious danger) 1. The more open and obvious the danger, the less the product tends to have a defect. viii. Reasonable user expectation when using the product 2. After you determine that there is a design defect, to determine if that design defect is unreasonably dangerous, the test is: i. Put yourself in the position of the manufacturer ii. Impute the knowledge of the design defect to the manufacturer (assume whether its true or not, that the manufacturer knew of the design defect) iii. Then ask: would a reasonable prudent person in the position of the manufacturer with knowledge of this design defect still sell the product? (this is the rule statement) 1. If they would, its not unreasonably dangerous. 2. If they wouldnt, it is unreasonably dangerous. v. 3 exceptions that are different, only apply for design defect: 1. Prescription drugs: 28

a. Ex. drug that helps with MS but most likely side effect is that you will go blind. This is the state of the art at the moment. b. Could make an argument that the risk outweighs the utility, but as long as this drug comes with proper and adequate warning, there is no design defect, and it is not unreasonably dangerous. 2. Inherently dangerous product: a. Ex. salt, sugar, alcohol, etc. as long as there is a proper and adequate warning, there is not a design defect and not unreasonably dangerous. b. Dont need to warn about risks that are common knowledge. Ex. butter. 3. Food: a. Majority rule: foreign natural substance: i. Ex. if you bite into a chicken bone when eating chicken noodle soup, this is not defective b/c not a foreign substance to chicken noodle soup. If instead it was a toe nail, this is a design defect. vi. Warning (marketing) Defect Strict Liability 1. To determine if there is a defective marketing condition, we must see if there is any warning or instructions with the product, OR if the product has any warnings or instructions, are they adequate? a. To determine adequacy of warning, we use THE 3 CS TEST: i. Conspicuousness the warning/directions MUST BE READABLE! ii. Completeness every known and knowable risk has to be included, MUST HAVE ERRTHANG. iii. Clearness/specificity must be completely clear as to the warning. Tells the user what the risk is and how to avoid it. 2. To determine if it is unreasonably dangerous: ask what the manufacturer knew, or should have known, of any risk. If he knew or should have known of the risk, manufacturer must warn of it. 3. If you cant design away the risk, you must warn about it. 4. If warning is not enough in strict liability context it is inadequate. If warning is not enough in negligence context it is improper. 5. Dont have to warn about common knowledge hazards of using a product. a. Ex. common knowledge that a knife cuts and a lighter starts fires. 6. Learned Intermediary Rule: if the manufacturer provides adequate warning to a learned intermediary, then manufacturer is no longer liable for warning problems b/c they informed the learned intermediary. a. ex. drug co. provides a prescription only drug that is marketed only to doctors for them to prescribe at their discretion. Drug co. only needs to warn about things that the doctor would not know about. However, if it is marketed to the public, drug co. is fucked and needs to warn about everything so retards know what the risks are. 7. Govt. specifications and standards in regards to products:

29

a. If you comply w/ govt standard in the actual manufacturing of the product, that is SOME evidence that the product does not contain negligence and SOME evidence that it does not contain defects. b. However, if you comply w/ govt specs, in some jurisdictions, it is conclusive evidence that it was not negligence and not defective. 8. Malfunction theory: ex. toaster blows up, so if it does, some kind of defect (strict liability version of res ipsa) vii. Warning defect for negligence: 1. Same negligence analysis except it is for a warning defect, only thing that is different is the breach of duty: 2. Breach of duty: what rpp would do under same or similar circumstances (what manufacturer knew or should have known at time product was sold) 2 steps: a. What did they know, or what they should have known when sold b. If they knew or should have known, would a rpp warn? d. Doctrine of Misuse for products liability: i. Different than contributory negligence, goes to counter the defect. 1. If it was foreseeable misuse (ex. person standing on a chair), this does not bar recovery. 2. If it was unforeseeable misuse, then this bars recovery. a. Ex. using a weed whacker to trim your balls. THIS IS THE END OF TORTS, GOOD LUCK BITCHES.

30