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I. Intentional Harm A. Prima Facie Case- unjustified, intentional infliction of harm on another person, resulting in damage, by one or more acts that would otherwise be lawful. B. Intent: a. Purpose: purposefully acting to produce harm; OR b. Knowledge: Acting knowing that the harm is substantially certain to result. c. Transferred Intent: Intent can be transferred from person to person, or tort to tort. i. Eg. intent to hit one person and hit another, or attempt to assault and you commit a battery. d. Garrett v. Dailey: D child pulls chair out and P adult is injured. Child did not have to have the intent of causing the injury, but may have known with substantial certainty something bad will result. Ct. held child had intent and P was awarded damages. C. Physical Harms- (intent) Trespass to a. Person i. Vosburg v. Putney: egg shell P ii. Kid kicks another kid at school; particular kid had weak shins and was severely injured. Eggshell P theory applies because the D had the intent to cause in the act, doesnt matter he didnt intend to cause the injury, so D is liable for all injuries. b. Land- Breaking the close of another unlawfully. i. Quare clausum fregit- Where D unlawfully and wrongfully trespasses on real estate of P. ii. Intent to trespass, not to cause harm. iii. Dougherty v. Stepp- D went on the land to survey, thought it was his own land, didnt really cause any damages, but it wasnt the intent to cause damages, it was the intent to go on the land, so P was allowed nominal damages. c. Chattels (personal property) i. No protection for harmless intermeddlings (diff. from land) ii. Only protection if intermeddling is harmful to the possessors materially valuable interest in the physical condition, quality, or value of the chattel, or if deprived of chattel for sig. amount of time. iii. Intel Corp. v. Hamidi: D former employee of P and was using their system to send emails to the employees of P. P could not recover damages because the emails did not cause damage or impair the functioning of the system. iv. Ebay v. Bidders Edge: D was probing Ps website with spiders, this was forbidden in Ps policies. This allowed the viewing of bidding without actually being on Ps website. P said damage of profits and functioning of website. P could recover because if people didnt have to go on Ps website customers wouldnt see advertisements and it would cause a loss of revenue. D. Emotional Harmsa. Assault- 24-Actions intending to cause harm or offensive contact or imminent 1

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apprehension of such a contact (NO CONTACT OCCURS). BlackstonesUnlawful setting upon ones person. **Compensating for legitimate fear. i. I. de S. and Wife v. W. de S.: Man threw hatchet at door. Never made contact with her. 1. Held: Woman had a legitimate fear the hatchet would hit her. Just because missed her doesnt mean she wasnt in imminent fear. 2. Apprehension: Enough that he believes the act is capable of immediately inflicting the contact upon him, unless something further occurs. **Concern may not rise to level of fear. ii. Tuberville v. Savage: D put hand on sword and said if not for judges in town I would kill you. D said he negated his action (hand on sword) by saying words. 1. Held: Words negate threat because it made it conditional, no imminent threat. NO assault. iii. Allen v. Hannaford: D discovers furniture being removed, appeared with pistol and says will shoot P will holes if you take furniture. D says gun wasnt loaded so no assault. 1. Held: The apprehension created in the mind of the person assaulted is more important than the secret intention of the person committing an assault. D didnt know wasnt loaded, imminent fear. Assault. iv. Brower v. Ackerley: Words spoken on the phone 1. Held: Ct. said that they were only spoken words, no immediate threat, NO assault. (some courts hold this is enough) b. Offensive Battery: 18- Acting with the intention to cause a harmful or offensive conduct or imminent apprehension AND offensive conduct results. **Compensating for the apprehension/fear and to deter people from committing action. i. NO intent = NO battery. ii. Alcorn v. Mitchell: D spit on P after a court hearing. 1. Held: P recovered, even though not harmful, still offensive contact. iii. Knowledge that unpermitted conduct has taken place is not necessary. 1. BUT if have knowledge and offensive contact doesnt occur, still might be an assault. a. Eg. Spit and miss, if see attempting to spit => assault. c. False Imprisonment: Showing of effective confinement, not a simple restriction on movement. (Completely confined, intent to confine) **Compensating for the mental distress of being physically restrained in an area and not being able to go wherever you want to go. i. No confinement1. Bird v. Jones: P was trying to cross a public highway, couldnt go the way that he wanted to. a. Held: Was more so excluded from going somewhere.

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Free to go in another direction, no one else could pass through either. ii. Large area of confinement1. Whittaker v. Sandford: P was on a boat, allowed off shore when it docked but had to be accompianed by other people when ashore, no opportunity to roam or stay ashore. a. Held: She was imprisoned by the boat, could not roam around, was a case of true imprisonment. iii. Emotional coercion1. Coblyn v. Kennedys Inc.: P was in store and as was leaving, Ds employees asked where got ascot. Employees suggested he come back into the store to discuss. a. Held: No physical coercion, but these were big men, and P knew that they could keep him at store. He felt emotionally restrained. iv. DEFENSES: 1. To protect Ds person or property: a. Eg. Coblyn- thought he was stealing. b. Reasonable manner, for a reasonable manner, for a reasonable time, and reasonable grounds. (3rd factor not fulfilled in Coblyn. c. Sindle v. New York City Transit Authority- D bus driver, took kids off route, kid got scared and jumped out. i. Standard apply is you can try to escape only if the risk of remaining in prison is greater than the risk of trying to escape. 2. Consent: a. Mohr v. Willams: Consented to oper. on right ear, dr. oper. On left b/c was worse. P won, no consent, unlawful. b. Difficult when P seeks to retract consent. (P. 91 ?) 3. Deprogramming: ? d. Intentional Infliction of emotional distress- Extreme and Outrageous Conduct: i. 46- Extreme and outrageous conduct intentionally/recklessly causing severe emotional distress to another is subject to liability for such emotional distress if bodily harm results. (OLD TEST) ii. Wilkinson v. Downtown: D tells P her husband was in a terrible accident and lying in the street and need to go get a cab and get him right away. P experienced violent shock to nervous system, permanent physical distress, incapacity, etc. 1. Held: Even though he didnt intend the consequence to come, he intended to do the act and this was enough. Emotional distress was so violent it caused physical distress. Made this an easy case to compensate for. 3

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iii. Need all three: Extreme, outrageous, and severe emotional distress. 1. Hustler Magazine v. Falwell: Magazine placed ad that said first time Falwell had sex was w/ mother in an outhouse. a. Held: This was seen as a parody, not state of facts, Falwell mailed the ad to friends, no severe emotional distress. iv. Now we recognize emotional injury without physical injury (b/c med. Science) 1. Needs to be documented though, send to psychiatrist to be able to be a expert witness. a. Prob.- Clients dont come to you soon enough. II. Negligence A. Limitation on Ds liability for accidental harms. a. RST 3rd Negligent- Actor does not exercise reasonable care under all circumstances, primary factors to consider are: i. Foreseeable likelihood that it will result in harm, ii. Foreseeable severity of the harm that may ensue, iii. Burden that will be borne by the actor and others if the actor takes precautions that eliminate or reduce the possibility of harm. b. Four essential elements of NEG. i. DUTY- did the D owe P a duty to conform his conduct to a reasonable standard to prevent unreasonable risk of harm. ii. BREACH- did Ds conduct fall below the applicable standard of care. iii. INJURY/CAUSATION- must be actual injury; cause in fact/proximate cause (?) iv. DAMAGES- what can you recover for it? (must be actual injury) B. Duty a. General rule- Duty owed to Foreseeable Ps. C. Standard of Carea. General rule- People are held to a standard of a reasonable person (objective) i. Exceptions: 1. Children (standard of reasonable child of that age) a. Roberts v. Ring: P was minor child (7yrs) ran out in front of a speeding car. Could not be held contributorily negligent b/c held to a standard of care of a 7yr old. b. Daniels v. Evans: 19yr old- Motorcycle accidentNot an adult, but held to standard of a driver. c. Under 7 can not be negligent. 2. Mental Incapacitya. Must be held to the same standard of a reasonable person under the circumstances. (prior knowledge of condition and that it might affect you) 4

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b. Breunig v. American Family Insurance 3. Physical Incapacity (Disability) Reasonable care of other similar situated disabled people. a. Fletcher v. City of Aberdeen: Worker negligently forgot to replace barricade to block a hole where city was doing construction when left his shift at night. Blind man fell in hole. i. Held: City was neg., barricades were designed to protect all residents, shouldve foreseen a blind resident. Reasonable blind person standard. 4. Common carrier- (held to higher standard) a. Andres v. United Airlines: Bag fell on Ps head from overhead compartment. Airline knew about bags shifting, couldve put nets or something else to lessen the risk. b. Hand Formula- Cost/Benefit Economic Analysis i. Factors considered: Foreseeable likelihood that it will result in harm, foreseeable severity of harm that may ensue, burden that would be borne by actor and others if the actor takes precautions that eliminate or reduce the possibility of harm. ii. U.S. v. Carroll Towing Co.: 1. B< P x L (B- Cost of preventing, P- Probability, L-Cost) 2. P x L = Expected cost Average cost of the accident. 3. Cost of preventing was less then expected cost so negligent. iii. NEED FORESEEABILITY c. Custom- May be introduced to establish the standard of care in a given case (uses the industry) i. T.J. Hooper: Not general custom to equip boats with radios. ii. Restatment: Only considers custom as evidence of a standard, compliance doesnt mean cant be found negligent and vice versa. iii. Lucy Webb Hayes National Training School: P was in psychiatric hospital and slipped past nurses station to unsecured area and jumped out window and died. 1. Held: Hospital set and broke own standards (negligence), custom doesnt matter. iv. Doctors: Held to a reasonable person in the medical field- good standing - under like circumstances. (in a similar community) (EXPERT TEST. to determine SOC) 1. Multiple practices sometimes acceptable a. But cant be minority view, must be respected by a considerable # to create a school of thought. 2. Prima Facie Case of MedMal: basic norms of knowledge and medical care applicable to general practitioners/specialists; proof that medical personnel failed to follow basic norms in treatment; causal relation btw act of 5

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physican and injury suffered. a. Lama v. Borras: expert test said that reasonable dr. wouldve postponed surgery while patient was on bedrest, dr. did not postpone, causation ? for jury. 3. Locality Rule: Standard of care from same or similar communities. (smaller comm. May not have as many resources) a. Brune v. Belinkoff: Rule not applied, not diff. technology/resources, just a diff technique used there. i. Held: Standard of care is national, community is a circumstance. b. Medical students: Patients do not seek out interns (same level of care expected), hospitals shouldnt put interns in position they arent capable of handling. c. Helling v. Carey: P long time seeing eye Dr. for irritation issues. Glaucoma test never given b/c not customary w/ that age. i. Held: Used Hand formula and said no way a jury could find otherwise. Dr. neg. 4. Disclosure: objective standard, would a reasonable patient have had enough information to decide to go through with the procedure; informed consent. a. Canterbury v. Spence: P fell out of bed, ended up w/ paralysis. Ct. said even a very small risk must be disclosed. b. Scope: 1. What procedure entails goals/risks; 2. Alternative and goals/risks; 3. Risk of foregoing. c. Exceptions: i. Emergencies- dont have time to warn, person unconscious and harm from not doing outweighs risks of doing. ii. If disclosure will not allow a rational decision to be made. 1. Eg. too emotionally distraught. d. Ct. decides if there is a duty to disclose. d. Statute: relieves of duty to show that an action was reasonably negligentDs conduct simply breached the standard of care because it breached a statute. i. NEED to show: 1. P was in class of persons designed to be protected by the statute. a. Stimpson v. Wellington: D drove heavy truck on street, broke Ps pipes and prop. flooded. i. Held: The statute had dual purpose to protect the streets and to bring P in the class of 6

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Fall 2008 persons to be protected. 2. The harm suffered is one that the statute was designed to protect. a. Gorris v. Scott: Sheep washed overboard when not penned up. i. Held: Statute was designed to prevent disease, outside the scope of harm. b. Ct. looks at legislative history, or can interpret for themselves. Statute creates breach as a matter of law, causation is for jury to decide (would accident have occurred if statute was not violated?) 1. Prima facie- treated as evidence (d could have excuse) 2. Per se jury has no dispensing power. If custom and statute conflict: 1. Tedla v. Ellman: P child hit by car. a. Held: Read customary exception into statute and P could still recover. Licensing statutes: 1. Prima facie- P doesnt have to show standard was below standard of care, breach of statute is enough, but def. can escape liability if shows acted like a reasonable eg. dr. 2. Per se- relieves P of showing D acted below standard of care, just needs to show causation. 3. Brown v. Shyne: Didnt use either and put burden on P to show D didnt meet the standard of care by using expert witnesses. Intervening actions of third parties: 1. Ross v. Hartman: Ordinance said lock your car. D left keys in ignition car stolen and thief hits someone w/ car. a. Held: Ct. viewed statutes purpose to cut down on thefts but also for safety of public streets and said this type of harm was the harm that the ordinance was intended to prevent. 2. Richards v. Stanley: City ordinance specifically said violation could not be used in tort action. a. Held: Criminal act breaks causation, cant use statute of the standard of care, ct. rejected increased risk. Dram shop statutes: Commercial establishment serve until intoxication and causes injury to 3rd person. (only way establishment can be liable- no common law liability) 1. Vesley v. Sager: drunk driver, person who he hit sued bar. a. Held: consumption was cause not serving (check) 2. Ewing v. Cloverleaf: D overserved decedent b/c 21st bday. a. Held: Willful misconduct on D, shouldve been aware of probable injuries of drunk driving.

ii.

iii.

iv.

v.

vi.

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(overcome Ps contributory negligence) 3. Cal. Extended to non-commercial settings. a. Didnt go over well with voters and was overruled by legislature. e. Judge and Jury- Divides responsibility for deciding questions of fact btw a f. and jury, neg. falls btw law and fact. i. Judges- decide law => Tells jury what that is and jury must find facts. ii. Judge instructions to jury: 1. Decide with sense of fairness; 2. Judge decides if bare minimum to go to jury; 3. Instructs as to law, if you find A,B,C then must find negligence. iii. Baltimore & Ohio R.R. v. Goodman: Holmes wants to apply a per se rule for neg. as a MATTER OF LAW, jury not allowed to relax standard. If he didnt stop, look, and listen P was contributorily negligent. iv. Pokora v. Wabash Ry.: B/c of cars on firsts track P couldnt see cars on 2nd track. 1. Held: Cardozo limited Goodman for extraordinary circumstances. He left it up to the jury to decide what a reasonable person would have done. v. Jewell v. CSX Transp.: Intersection was not extra hazardous as a matter of law, jury can not answer that question. Can not find neg. if not extra-hazaradous. g. Res Ispa Loquitor: P uses circumstantial evidence used to prove neg.; fact that injury occurred may itself establish a breach of duty owed, can infer liability. Judge decides an inference may be drawn to use, then jury weighs inference by evidence P presents. BURDEN on D.Act i. Establishes Prima facie case so no directed verdict for D. P still must show: 1. Event wouldnt have ordinarily occurred in the absence of negligence. a. Byrne v. Boadle: barrel fell out of window and on P while walking by Ds premises. Barrels just dont jump out of windows. In custody and control of D employees. b. Pfaffenbach v. White Plains: Ds car cross median, ct said anytime car on wrong side of road a prima facie case has been made. c. Act of God can be an exception. 2. Whatever the injury was was under the defendants exclusive control. a. Larson v. St. Francis Hotel: chairs dont usually fly out of windows on V-J day, but ALSO hotel didnt have control. b. Connolly v. Nicollet Hotel: antics of guests gave notice of danger, hotel couldve taken stepts to 8

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control. c. Ybarra v. Spangard: P woke up from appendectomy w/ a bad arm, many diff ways it couldve been caused, P could not possibly know if it was caused by neg. D had complete control over patient. Allowed to use but then both P and D had to use expert test. to convince jury. 3. Plaintiff wasnt contributorily negligent D. Causation: Did breach CAUSE Ps injury (how far does this extend) a. Cause in fact- Did Ds act in fact cause Ps injury. i. D can win if shows Ps injury existed prior to accident. ii. But For test 1. An act or omission to act is the cause in fact of an injury when the injury would not have occurred but for the act. 2. New York Central R.R. v. Grimstad: Statute creates duty to have life preservers on board. P drowed on Ds boat. Ct. said even if the life preservers were on the boat could the wife have thrown it to him in time and he have caught it? Too many intervening acts to say but for did not even let go to jury. reasonable minds couldnt disagree. 3. Haft v. Lone Palm Hotel: father son drown in pool, no lifeguard, violation of statute requiring sign posted, P showed lifeguard couldve prevented it, Ct. shifted burden to D to prove causation. (shifting approach rejected by most states including IL) 4. Zuchowitcz v. United States: Breach- twice recommended dosage of med. prescribed. Question if this couldve been the cause of PPH, expert test. says yes, but for. iii. Slip and fall cases 1. Did Ds actions greatly multiply changes of accident. (mere possibility might have happened w/ out neg. isnt enough) a. Reynolds v. Texas & Pac. Ry.: P fell down unlighted steps going to train. No question of duty breach, no lights on steps, and multiplied chances P would be injured, leads naturally to injury. iv. Standards for admitting Expert testimony1. Daubert- (Binding on fed. Cts., most states use) # of questions: is it generally accepted, subject to peer evaluation, rate of error is acceptable. Judge = Gatekeepr. a. Standard of review- rarely will decisions be reversed. Only look to see if abused discretion. b. Kumho Tire Co. v. Carmichael: P had tired blowout. SC held this test extends to technical evidence. 2. Frye-(Few but Big states use: IL, NY) Is expert opinion generally accepted in med. profession? v. Toxic Torts: 3 levels of Causation. 9

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1. Substance for which D is responsible for can cause injury or disease. 2. D and not someone else was source of substance. 3. P exposed to substance in a way that caused the disease. vi. Lost Chance Doctrine: P deprived of a percentage of change to survive. (exception to general rule) 1. Hersovits v. Group Health Cooperative: P had 5 year chance of survival 39% when came to Dr. By time Dr. 5 yr chance of survival only 25%. Cause of death was cancer but Dr. not diagnosing it reduced chances of recovery. 2. If over 50% chance of survival and less than 50% by time diagnosed could recover all damages. (?) vii. Multiple Factors of Causation: 1. Kingston v. Chicago & N.W. Ry.: Two fires merge and destroy Ps house. One started by RR one started by a human agent. a. Either fire wouldve completely destroyed Ps property so full liability, sufficient if Ds conduct was a substantial factor in causing injury. b. If other fire was caused by natural causes (wind), D can NOT be liable. 2. Restatement: Tries to divide joint causation. a. When there is more than one thing/person that couldve caused the damages, Ds can work it out between themselves to apportion the damages. 3. Joint and several liability: arises when it is conceded that each of two or more Ds play some causal role in bringing about the injury. a. 433A: Apportionment of harm to Causes: Damages are to be apportioned among two or more causes where there are distinct harms or there is a reasonable basis for determining contribution to each cause or single harm. i. Summers v. Tice: 3 hunters, two Ds shoot, P gets hit. Entire universe of Ds named (only those two). Both breached, so both fully liable. Shifted burden to Ds to show who was the cause in fact. ii. Sometimes difficult to decide what harms are attributable to which D. b. DES customers/patients: not all possible Ds named, courts created market share liability. i. Sindell v. Abbott Labs: P could only name 5 Ds that manufactured the drug. No Guarantee the liable party was before the court. 10

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1. Held: The P named a substantial portion of the market. Drug was fungible (all produced from identical formula.) Also P has burden of naming as many Ds as possible bc her recovery is limited to % of market she brings the claim against. (?) ii. Skipworth case: Lead paint caused injury, market share liability did not work. No fungible product, P unable to point to who manufactured the lead pigment child ingested. b. Proximate cause- legal causation, how far does liability extend, limitation of liability and deals with liability or non-liability for unforeseeable or unusual consequences of ones acts. i. General rule of liability: D liable for all harmful results that are the normal incidents of and within the increased risk caused by his acts (foreseeability) 1. Ryan v. New York R.R.: D breached duty (fire to own woodshed), ct listed factors that added to fire (heat, wind, material) that were not ordinary or natural result of liability ct draws arbitrary line to protect snowball effect. 2. Smith v. London: Spark from Ds engine started fire in trimmings left by the RR. Ct said D was negligent and therefore liable for all consequences. 3. City of Lincoln: Albatross hit by City of Lincoln and totally destructed. Navagation system shot, P was deprived of means of managing ship. Loss of equipment was cause of accident, and therefore D is responsible. Natural and reasonable result of Ds act. 4. Jones/Tuttle: Emergency situtations, P wouldve been fine if didnt move, but were motivated by REASONABLE fear. 5. Position of Safety: if D force comes to rest creating new or increasing risk and foreseen dangers happens, injury is consequence of D act: if Ds forces comes to rest in position of safety, some new force later combines w/ condition to create harm, result is remote from D act. a. Central of Georgia v. Price: P misses stop on RR. Common carrier so higher standard of care, but RR put her up in hotel. Lamp explodes in hotel and P is injured. i. Held: RR not liable because lack of foreseeability. Neg. becomes hotels. b. Hines v. Garrett: P missed stop. RR knew it was a dangerous unsettled area but still let P walk back through it. RR increased the risk, their actions 11

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Fall 2008 became a cause of the injury rather than a condition. c. Pittsburg v. Horton: Child playing w/ blasting cap he picked up from ground by unenclosed plant premises. Mom picked up caps child played w/ and knew i. Held: Parent was intervening act that broke causal chain. d. Marshall v. Nugent: Oil truck drove Nugent off the road. They are two Ds, Marshall was passenger in Nugents car and went up hill to try to warn other drivers, and gets hit by a car. P was just coping w/ situation D created. Ct said liability extended until the situation is totally over. 6. Deliberate intervention by third parties: can D foresee possibility of third actor? Restatement substantial factor test universally followed says D should be liable precisely b/c third party DID exploit dangerous condition created by D. a. Watson v. Kentucky: accident gasoline on street individual throws a match. Ct used foreseeability test. Criminal act could not be foreseen. (trad. View) b. Brower v. NY Central H.R.R.: Collision resulted in death of horse and goods fall out. Thieves steal all spilled goods. Ct doesnt assume criminal act breaks causation, applies foreseeability test, treats D and thieves as joint tortfeasers. c. Danger invites rescue: rescuers should be foreseeable (Wagner v. International Ry.: cousin thrown from train, should be foreseeable cousin would want to go try to rescue him) 7. Harm within the risk- RST 281: harm to person diff. class to whom actor could not have anticipated injury not liable. 8. Direct Cause: Breach + Damages (as a direct. Consequence) = liability. a. Polemis: any direct consequence arising from breach of duty whether or not foreseeable, uninterrupted chain of events led to explosion of boat. The dropping of the plank on the petrol, causing a spark, and blowing up was not a natural cause of the action. b. Palsgraf: yes owed duty, cause in fact, direct consequence, but denies breach of duty, risks foreseeable define duty to be followed, only owe duty to protect from foreseeable risks. i. Only owe duty to foreseeable P for foreseeable harm. ii. Few cts follow Palsgraf, usually follow Andrews minory: Substantial factor 12

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Fall 2008 1. 431- Legal cause if substantial factor in bringing about the harm and there is no rule of law relieving the actor from liability b/c of the manner in which his negligence has resulted in the harm. 9. Foreseeability of harm: a. Wagon Mound I: D discharges oil it shouldnt have, P sees in water, asks D if contact w/ flammable stuff will it explode. D says no, piece of rag falls in the water and explodes. i. Held: Privy counsel reversed overruling Polemis saying you needed foreseeability. b. Wagon Mound II: P owner of ship introduced evidence that D engineer should have foreseen fire, no excuse for discharge of oil. Slight risk of harm that is foreseeable, no justification for act of negligence. (GO OVER) c. Doughty v. Tuner Manu: D employee knocked asbestos cover into vat, caused explosion, damage was not foreseeable. d. Hughes v. Lord Advocate: Lamp fell in hole after P tripped over it, explosion. D said harm wasnt foreseeable. Ct says dont need specific type of harm just the general harm to be foreseeable and explosion/fire was general harm. 10. Foreseeability of Extent of Harm: a. Take P as you find them, eggshell rule (same for negligence?) b. Petition of Kinsman: Boat tied up wrong, broke loose, hit another boat, no one to answer the phone when they are calling to tell them to lift up drawbridge, hits bridge, causes flood. i. Held: Owe a duty to everyone on the river, similar to road in a driving situation. Rejects foreseeability and uses direct consequences test so long as the harm is of the same general sort of harm that is risked. 11. Emotional Distress a. Impact rule i. Mitchell v. Rochester Railway: Wanted impact before P could recover. (IL used till 1980s) b. Zone of Dangeri. Dulieu v. White & Sons: Nearly run over by horses, must be in the zone of danger and 13

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Fall 2008 fear physical harm. Here she wasnt in the zone. c. Dillon Test i. Dillon v. Legg: Says general rule of negligence can be applied we dont need special rules. Foreseeabilty test: 1. Locationclose proximity; 2. Contemporary sensory observance; 3. Relationship. Here mom who witnessed child hit by car could recover. 1. Limited application- Cts resisted extention to non-family, not present, not observe but hear. d. Molien v. Kaiser Foundation Hosptials: Misdiagnosis of syphilis, caused dissolution of marriage. Ct said that risk of harm to P was reasonably foreseeable that would result in marital problems and emotional distress.

E. Duties: a. Affirmative Duties i. Duty to rescue 1. General rule: No legal duty to affirmatively act for the benefit of others (nonfeasance) a. Buch v. Amory Manufacturing Co.: P was trespassing and injured by machine. P didnt allege any negligence in the keeping of equipment, only said D shouldve picked up and removed from premises. i. Held: No duty to rescue because D did not put in a position of harm. b. Hurly v. Eddingfield: D doctor wouldnt leave home to care for patient (not stranger relationship), knew he was the only one who could help. i. Held: No contract to save, no duty. c. Yania v. Bigan: D taunted P to jump into quarry water. i. Held: D had no duty, only an act of force or taking advantage of the inability to realize something creates duty to rescue. 2. Assumption of duty: One who gratuitously acts for the benefit of another is then under duty to act like reasonable person and continue assistance. a. Good Samaritan statutes: Medical personnel will be exempt from liability for ordinary neg. (willful and wanton still liable) if they voluntarily help someone in an emergency situation. Encouraging assumption of duty. 14

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Fall 2008 b. Erie R.R. v. Stewart: No statutory duty to have watchman at crossing, R.R. assumed duty because usually provided a guard at crossing. P relied on this when crossed and was hit. c. Marsalis v. LaSalle: D assumed duty to watch animal for 10 days after bite, P relied on watching the animal, animal escaped, P went under treatment anyways, D liable. 3. If have placed another in a position of peril, under duty to aid or assist, also cannot make someone worse off than before. (misfeasance) a. Montgomery v. National Convoy & Trucking Co.: D truck stalled on highway, knew view obstructed. Put flares up around car. Even though it was not their fault the car stalled, they knew of the risk it created, and did not take precautions would reasonably be calculated to prevent injury. (not high enough up on road to prevent accident) b. Zelenko v. Gimbel Bros: P was in store and got sick. D employees started to help, but left in bathroom for 6 hrs. Ct said put him in a worse position and were liable. c. RST 324: Liability if: 1. Failure to exercise reasonable care; 2. If discontinuing aid puts other in a worse position. 4. Willful and Wanton Exception a. Excelsior Wire Rope Co. v. Callan: two P hands crushed in D machinery, D knew children were in the area (swarming with children). Ct held D liable saying he did not check to see if machinery was clear even though knew that when it started the children there would be exposed to grave danger. b. Gould v. DeBeve: Child fell out of window, statute said that D conduct willful and wanton by not putting up a screen on the window b/c violated statute, Statute said needed screens to keep mosquitos out, ct construed to mean keep mosquitos out and kids in. c. Attractive Nuisance: Most courts allow child trespassers to recover when lured onto D premises by condition created & maintained by D, some courts reject because cannot be limited. i. RST 339: Four factors P must show: (must be artificial condition) 1. Possessor knows or has reason to know a child may trespass. 2. Unreasonable risk of death or serious 15

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bodily harm to children. 3. Children because of youth dont know condition or risk (defenseassumption of risk) 4. Burden of eliminating risk is slight compared with the magnitude of risk. ii. Cts that reject (including IL) take view of it is parents duty to keep children safe, rather than landowners. (everything is an attractive nuisance, no limits) ii. Duties of owners & occupiers 1. Invitees: business (conferring a benefit on owner- highest standard)/Licensees: private (social guests)/Trespassers (lowest standard) a. Rowland v. Christian (Cal.): P was washing his hands faucet broke and severed nerves. D knew about it. Ct applied reasonable care to all. i. Most states keep trespassers separate from invitees and licensees. b. Sargent v. Ross: Court abolished the distinction between licensees/invitees for landlords. i. Left intact distinction for trespasser. c. Trespassers only owed duty to refrain from willful or wanton injury. i. Pridgen v. Boston Housing Authority: Child P was trespasser stuck in elevator, D knew he was in there and danger, therefore duty because knowingly refrained from taking reasonable action. d. IL uses both the invitee/licensee language but same standard of care for both. e. Ward v. K-Mart Corp: (IL approach) P goes to store, gets a large mirror, runs into a post outside store. i. Open and obvious danger on land, not liable, but exception for distraction if distraction at placement was foreseeable (and slight burden). 2. Firefighters rule- Generally, if you were injured by putting out the fire you cant recover, but if you were bit by dog or something unrelated to the fire you could recover. a. IL classifies as invitees and when they are not dealing with the fire highest standard of care. 3. Use of Recreational Landa. No fee- not liable for injuries suffered by recreational user unless landowner willfully and maliciously failed to guard against or warn of 16

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dangerous condition or activity. iii. Special Relationship that creates a duty 1. Contract duty 2. No duty to control third parties to prevent them from harming others unless: A special relationship exists between the actor and the third party that imposes a duty upon the actor to control the third persons conduct; or a special relation exists that gives the other a right to protection. (RST 315) a. Duties of D high when they facilitate injuries: Weirum v. RKO General Inc. radio promotion aimed at teenagers, foreseeable the teenagers would drive recklessly, creation of unreasonable risk. (competitive scramble) b. D should be shown to have the ability and authority to control persons action. c. Tarasoff v. Board of Regents: P told psychologist he was going to kill student, relationshiop between patient and therapist under RST shouldve warned. i. Foreseeability of harm to P, degree of certainty, closeness of D conduct and injury, moral blame of D conduct, policy of preventing future harm, burden on D (like hand formula) d. Thompson v. County of Alameda: Juvenile prisoner said if Im ever released Im going to kill someone, Dr.s thought getting better, released for the weekend to his mom, he killed and sexually abused a child No duty i. Missing an identifiable victim ii. Drs thought he was getting better. e. Lundgren v. Fultz: D, psychiatrist of paranoid schizophrenic, wrote letter to police to secure guns that were confiscated. D liable because placed the gun in the potential assailants hands F. Plaintiffs Misconduct a. Contributory Neg. P does not take reasonable care i. Breach of Statutory Duty 1. May be established by violation of statute under same rules that govern whether a statute can establish Ds negligence. a. Koenig v. Patrick Construction Corp.: P was in class of persons for whom statute was enacted to protect. i. If barred Ps claim would defeat the purpose of the statute Therefore D cannot use it. ii. Five exceptions: workplace, custody, emergency, statute, and within 17

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risk. iii. Workplace: 1. Gyerman v. U.S. Lines Co.: P failed to use ordinary care for own safety but lack of care was not cause of injury, D must prove P neg. and causation (substantial factor). (D didnt show that if P did report wouldve done something about it) a. RST 465: P neg. must be a substantial factor in bringing about the harm; and causal relation test is same as for Ds. iv. Harm Within the Risk 1. Smithwick v. Hall & Upson: Employer said dont go to that side of the building because there was ice and he could fall off, P went over there and roof collapsed. a. Held: The harm was not within the risk v. Custody 1. Padual v. State: Tang case. Ps were in the treatment center because they couldnt control themselves. D had duty to protect. vi. Reckless D, Reckless P 1. Law leaves where it finds them. b. Assumption of Risk- P deliberately and voluntarily encountered known risk created by D negligence. Ps conduct doesnt fall below the standard of care. i. Work Related Injuries 1. Lamson v. American Axe & Tool: P was hanging up the hatchets; he knew the new shelf was more dangerous. (overruled w/ workers comp.) ii. Duty to warn 1. Murphy v. Steeplechase Amusement Co. a. P got on ride and got injured. b. Huge sign that said warning Assumption of risk. 2. Russo v. The Range, Inc.: (IL case) P injured riding the Giant Slide, signed waiver saying he assumed all risk, court said he wasnt injured by the risk he assumed. iii. Spectator Sports- courts hold all spectators share common knowledge of injury from attendance. 1. Professional Sports- Maddox v. City of New York: Yankee P outfielder injured when slipped on wet grass, assumption of risk as a matter of law, knowledge of injury causing defect appreciation of risk. (no ultimatum) c. Comparative Negligence i. Partial Comparative Negligence- (Majority) bar P recovery if his neg. passes a threshold level 1. Less serious- P may recover only if was 49% or less at fault. 2. No more serious- P may recover only if 50% or lessa t fault. 3. IL P must be more than 50% negligent to not be able to 18

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recover. a. 50.1% cant recover. ii. Pure comparative negligence- 1/3 of states, allows recovery no matter how great P neg. (P 90%; D 10%) 1. D damages offset against P damages. a. Eg.: P- 90% at fault- $100,000; D- 10% at fault$10,000. P would recover $10,000 and D would recover $9,000 discounted by his 10%. (??) Ask questions. G. Strict Liability or Liability without Fault (nature of the activity) a. Prima Facie Case: 1.) Existence of an absolute duty to make safe; 2.) Breach of duty; 3.) breach was actual and proximate cause of P injury; 4.) Damage to P person or property. b. Animals i. Wild- Strict liability as long as no contributory negligence. ii. Domestic- Knowledge required that animal has a dangerous tendency. c. Abnormally Dangerous Activity i. Cant be mitigated or controlled no matter how much care is exercised 1. RST (2d) 520- existence of a high degree of risk of harm, likelihood that the harm that will result will be great, inability to eliminate the risk by reasonable care, extent its not a matter of common usage, inappropriateness activity and where it is carried on, and extent to which the value of the community is outweighed by its dangerous attributes. a. Doesnt say how these should be weighed. 2. RST (3d) 20- Strict liability when activity creates a foreseeable and highly significant risk, not common risk ( minority rule) a. Adds foreseeability takes out utility to community. 3. Natural v. Non-natural use of the land a. Fletcher v. Rylands: D reservoir floded P mine by escaping water. Considered abnormal; Non-Natural use Strictly liable. b. Common use does not equal natural use: Tanning chemical storage case Even though it was a common use in that industry, it was still a classic case of non-natural use. c. Turner v. Big Lake Oil Co.: Lack of water in Texas so it was a natural use to have to store it in large quantities in cisterns. 4. Aircrafts: Own section in RST a. RST (2d) 520(A): Applies using a categorical approach saying it will apply to damage on the ground from dropping or falling of an object from 19

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the aircraft. 5. Transporting chemicals: Strict v. Negligence (?) need. ii. Defenses to strict liability: (only focus on activity engaged in) 1. Act of God a. Can raise for situations beyond your control, eg. medical emergency you would not have expected. 2. Ps interference a. RST 524- if the harm would not have resulted but for the abnormally sensitive character of Ps activity. i. Eg. Mink farming case- she ate her babiesextremely sensitive activity under the RST. 3. Consequences of vis major- Ps default a. Eg. Go over and pet the bear on Ds prop. d. Vicarious Liability- Company is liable for its employees acts. i. Vicariously liable for tortuous acts committed by employee if the act occurs within the scope of the employment relationship. 1. Ira Bushey & Sons v. U.S.: Coastie came back drunk and wrecked dry dock, was acting in relation to employment, authorized to be in area, but for employment wouldnt have been. (Foreseeable b/c had to pass through that area to get to the ship.) 2. EXEPTION: Frolic and Detour employee was doing something for their own purpose. a. Eg. using company car, and stopping to get a few beers on the way back. 3. Alternative is Negligent Hiring. a. May have been an intentional tort so cant recover for vicarious liability but... i. Eg. Teacher molests child not characteristic of employment, but can say negligent in hiring because did not run a background check. 4. Independent contractors (distinguished from employers by right to control, details, and method by which employer controls their work) a. In general not liable for independent contractor w/ exceptions i. Held itself out to the employer ii. P relied on conduct of HMO to provide care iii. Petrovich v. Share Health Plan of Illinois: Turned on right to control, agency relationship established means liable. H. Product Liability a. Combines neg. and strict liability; built out of K theories of express warranty, implied warranty, misrepresentation, negligence, strict liability. i. Proper Plaintiff 20

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1. UCC 2-318 gives three options a. Family/guests- most restricted, must be reasonable foreseeable to expect they would use it. If not in the scope then it only applies to person who bought the product. Limits for personal injury, no prop. damage or economic loss. b. Limited to any person who reasonably expects to use the goods. Gets rid of the person in the household or family. Still maintains injury to person. c. Broadest- lead adopted. Extends past natural persons (includes corporations) Doesnt limit recovery to personal injury. ii. 402 (A)- One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability if: a.) in the business of selling; b.) it is expected to reach the consumer without substantial change; applies even though taken all possible care, and no contractual relationship exists. (shifts focus from conduct to product itself) 1. Occasional seller not liable (garage or bake sale) 2. Bystanders can also now recover, doesnt come up often. 3. Macphearson v. Buick Motor Co.: Purchaser of automobile brought suit against the motor co. It was more foreseeable P would be driving it then the manufacturer. iii. Proper D under 402(A): Business of selling Manufacturer, wholesale, or retail dealer or distributor, restaurant operator (chain of distribution) 1. Service Exception: a. Cafazzo v. Central Medical Health Service, Inc.: Defective TMJ implant. Surgery is a service with essential products. (hospital gown wouldnt be an essential product) b. Murphy v. E.R. Squib & Sons: Pharmacist is a long arm of a doctor they are distributing a service. Only way could be liable is if gave wrong drug. 2. Resale a. Tillman v. Vance Equipment: Resale was on an asis basis, D did not design, test, maintain product, and no direct relationship, with the seller. No liability. b. BUT a re-builder, or re-furbisher, would have opportunity to know of and remedy the defect. 3. Acquired Assets Generally successor corporations arent liable for injuries. EXCEPT a. Express or implied agreement to assume the selling corp.s liability b. When two corp.s merge into one. 21

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c. The purchaser corp. is merely a continuation of the seller corp. i. Ray v. Alad Co.: P must show couldnt have remedy against original manufacturer, essentially the same product was being made, and the D was benefiting from it. d. Transaction is done fraudulently. ** RST (3d) rejects these exceptions: Successor cant know the scope of liability. How many products already out there? b. Manufacturing Defects i. Product emerges from manufacturing process different than other products, but also more dangerous than if it had been made correctly. (Objective standard of other products) 1. Use same model from same manufacturer to compare it with to see if something is different. Dont ask WHY! ii. Dangerous if beyond the expectation of the ordinary consumer (Consumer Expectation Test) 1. RST (3d) 3: Kind of accident that occurs as a result of a product defect (res ispa loquitor) and the incident was not the sole result of causes other than the product defect existing that the time of sale or distribution. a. Escola v. Coca Cola Bottling- Coke bottle exploded, type of accident that doesnt normally occur, D need not have control (unlike res ipsa loquitor) as long as P can show no other causes. b. Causation: P will always say was using properly and becomes a jury question. i. The older a product is the more difficult it is to prove a defect existed while in manufacturers control. c. Substantial Factor: i. Speller v. Sears & Roebuck: P fire destroyed house and she died. Claimed it was faulty wiring in refrigerator. If the defect was a substantial factor in causing the injury the manufacturer could be liable. 1. Lots of expert witnesses. d. Food: i. Natural v. non-natural: Mix v. Ingersoll Bone in meat dish not foreign substance. ii. Reasonable customer expectations: Schaffer Dont expect bones in clam chowder. c. Design Defects i. What the manufacturer intended to design was defective, cant compare because all the same, P must show less dangerous 22

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modification or alternative was economically feasible (majority) 1. Feasable: Usefulness and desirability of the product; availability of safer alternative products; dangers of the product identified by time of trial; likelihood of injury; obviousness of danger; normal public expectation; availability of injury; feasibility of eliminating the danger without seriously impairing the products function. 2. Crashworthiness: a. Evans v. GM (7th Cir) nature of manufacturers duty, intended purpose. No liability b. Larsen v. GM (8th Cir)- Indended use includes crashes c. Volkswagen v. Young P seat broke, thrown into backseat ( 2nd collision), design caused greater injury. i. Even though accident isnt intended use, it is a foreseeable use. ii. Consumer Expectation Test Duty to not subject to unreasonable risk of injury. ii. Test for Design Defects is not Strict Liabilty RST (3d) preserves strict liability only for manufacturing defects. 1. Design standards can be set by legislation a. Uniformity, predictability of duty, evidence of standard 2. P must show the defect was a SUBSTANTIAL factor in injury. a. If P can show D must show for eg. what injuries were result of first collision, if cant, they bear the full burden of the loss. b. Wilson v. Piper Aircraft Corp. required P to show evidence of alternative design, FAA standard is minimum standard (now jury will decide if was safe instead of FFA) c. Barker v. Lull Engineering (Cal) Allowed P to show either risk outweighed benefit or the reasonable consumer expectation (IL approach too). But went further and said D must show no alternative design. i. IF he was P wouldve showed alternative design anyway to be safe, but Cal doesnt have to. 3. Open and Obvious Danger Becomes more like an assumption of risk, but still only a factor in balancing the risk benefit analysis. (Doesnt preclude P from showing alternative design wouldve prevented/reduced injury) 4. State of the Art/Subsequent Changes- given technology at the time of the sale, not trial 23

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a. Later changes made to design not held as evidence Policy fears it would inhibit changes made by manufacturers for fear of future liability. 5. Modification- Product must be expected to reach the user without substantial change in condition a. Can be seen as an intervening cause but does not always relieve manufacturer of liability because it depends if injury was within the risk of modification i. Printing Press eg. Safety guard removed to make go faster could be seen as foreseeable. 6. Disclaimers are irrelevant in neg. or strict liability cases if personal injury or property damage has occurred. d. Defects in Warning (Inadequate Instructions or Warnings) i. Some products are dangerous but their social utility requires them to remain adequate warning should be given. 1. Failure can be to warn about actual product 2. Or use of the product (inadequate instructions) ii. Duty to warn generally directed at the consumer 1. EXCEPTION Prescription drugs: Dr serves as learned intermediary so needs to be warned, will make decision based on medical history and knowledge a. Exception to Exception: Birth control i. MacDonald v. Ortho: Distinguishable because it is a passive process by the dr. Patient goes in and says I want birth control, instead of I have a cold, and Dr. actively chooses what to give. b. Some courts see intermediary as an absolute exception, others apply as a factor to consider. 2. Pharmacists No duty to warn unless know of drug interactions iii. Duty to warn of risks that did know or should have known at the time (discovered by way of reasonable testing prior to marketing the product) 1. Vassallo v. Baxter Healthcare Corp.: Did have constructive notice of risks with the implants at the time of the sale. iv. Defenses to Product Liability 1. P must show (defenses can go to any of these): a. D is seller of product b. Product left sellers control in defective condition and was unreasonably dangerous. c. P was the user or consumer of the product d. P suffered injury to their person or property e. Product was actual & proximate cause of the injury 2. P failure to notice is never a defense (?) 24

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3. P misuse of the product can be a possible complete defense a. Conveys idea of active fault intentionally using the product in a way it shouldnt be used. b. D must show the use was not reasonably foreseeable to the seller. Different than ordinary and contributory negligence and assumption of risk. v. Federal Preemption 1. Supremacy clause: When a state law conflicts with the federal law the federal law is supreme. 2. 3 ways federal law can preempt state law a. Congress preempts state action (express) b. Filed Preemption: Congress has implemented a regulatory system that governs an entire area (implied) c. Where state action conflicts with federal law (implied) 3. Geir v. American Honda Motor Co. (2000): State law requiring airbags was preempted by federal law that did not require them 4. Reigel v. Medtronic (2008): Held suits involving injuries from medical devices are preempted by the federal law. 5. Wyeth v. Levine (current case): FDA didnt prohibit push injection that caused the injury in administration of medicine. a. Real issue: Do FDA regulations only set minimal standards that the states are free to change, or make judgments about the optimal balances that the states must follow b. Wyeth arg. FDA must approve the labels implied preemption. c. Levine Stricter is always better d. In 2006 Vermont (state here) held it provided floor and not the ceiling, now SC must decide the parameters of that.

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