DUTY A. Negligence 1. Default rule: a person is held to the standard of care of a reasonable person acting in similar circumstances 2.

Special Rules: a. Children: measured at the level of a child their age, experience, and intelligence Adult activity exception b. Physical disabilities: measured at the level of a reasonably prudent person with their disability c. Professionals Medical malpractice standard of care based on ordinary medical practice, not ordinary care standard; expert must testify different schools of thought doctor will be based on a standard under his school of thought Expert testimony: (i) Old view: same area of practice and same locality (ii) New view: same/similar locality and knowledgeable about particular procedure; some courts also adopt a national standard of ordinary practice (iii)Courts are divided as to whether in a res ipsa loquitor action, should there be an expert that says whether or not something would normally not happen without negligence. Informed consent action: P was not adequately informed about the risks of a procedure, therefore the consent is void (i) old view: battery action (ii) new view: negligence action; doctor did not exercise due care in explaining the risk 1. ordinary patient standard v. ordinary doctor standard 2. causation reasonable person would not have had procedure if they had been told about the risk Accountant negligence Original rule: privity of contract NY rule: the end and aim of the transaction must affect the reliance of the plaintiff NJ rule: must be foreseeable that P will be affected by the transaction Legal malpractice: the lawyer is judged by the standard of a lawyer with skill, prudence, and diligence of a lawyer of ordinary capacity standard of care: the court may second-guess their decision with non-judgmental errors, but will not likely second guess with judgmental errors if there was negligence on the part of the attorney, the client can sue the attorney d. Duty to warn Default rule: no duty to warn Exception: Special relationship (Tarasoff): if a doctor has a special relationship with the party to be harmed, or likely to cause harm, he must warn e. Duty to Rescue Default rule: generally no duty to rescue Exception:

 If you begin a rescue, you must exercise reasonable care in finishing the rescue Special situation: If you caused the harm, you have a duty to rescue f. Landowners and Occupiers Classification System Invitees/Public Invitees: express or implied permission; host expects some kind of benefit (i) Duty against known dangers and those revealed by inspection, and to make those dangers safe Licensees: implied permission; social guest, solicitor, neighbor borrowing tools (i) Duty to make safe the dangers owner is aware of or to warn of dangers (ii) No affirmative acts of negligence Trespassers: enters property without owners express or implied consent (i) Duty not to wantonly or willfully harm (ii) Exceptions: child trespassers 1. the child had to be attracted onto the property 2. artificial condition 3. reason to know that child would trespass 4. reasonable risk of death or serious harm 5. child would not discover condition 6. burden is slight with respect to risk 7. failure to exercise reasonable care Heins view Combined invitee and licensee (higher standard) but retained the rules for the trespasser category Modern Rowland View (CA) No distinction between licensee, invitee and trespasser; all owed high standard of care No exception for child trespassers Recreational use statute: where P is using the land for recreational use, the owner is protected from liability, except for wanton and willful misconduct (i) Very restrictive; no duty is applied to children who are recreating g. Landlords Duty of due care if: Leased for public use Common area Landlord was negligent in repairing Landlord knew of a danger that tenant did not know of Crime by 3rd Parties: Traditional view: landlords have no duty to protect against crime by 3rd parties Next view: duty of due care when there were prior similar crimes on the premises Modern view (balancing test): balancing the foreseeability of harm against the burden of imposing a duty to protect against the criminal acts of third persons (i) Providing security guards: prior similar crimes are not required, but foreseeability can rarely be proven without prior similar crimes (ii) Has been softened; only requires prior crimes, not necessarily similar crimes Guest statutes: if you are a guest, you are not owed a duty of due care CA abolished this rule

h. Emotional Distress Traditional view: no recovery for emotional distress; fear of fraud, floodgate of litigation Modern Categories: Fear for own safety: (i) Evolution of rules: actual slight injury on impact slight impact no impact but physical manifestations of fear zone of danger (ii) Modern view (1): those who can show physical manifestations can recovery (iii)Modern view (2): those who can show extreme emotional distress can recover Direct Victim cases: (i) No fear for yourself or anyone else, but severe emotional distress 1. Corpse cases and telegram cases (ii) Gammon approach: 1. Emotional distress must be severe 2. Foreseeability by D 3. P must be a family member of the decedent Bystander cases: (i) Dillon factors: 1. Whether P was located near the scene of the accident, as contrasted with a distance away 2. whether the shock resulted from a direct emotional impact upon P from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others 3. whether P and the victim were closely related 4. severe physical injury or death (ii) Thing Factors: 1. P is closely related to the victim 2. P is present at the scene of the injury producing event at the time it occurs and is the aware that it is causing injury to the victim 3. P suffers serious emotional distress a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to such circumstances i. Loss of Consortium: a spouse may recover if their spouse is injured and they suffer from loss of companionship, sexual relations, etc. First, husbands could recover; next, husband or wife could recover; some jurisdictions, parents recover j. Limited duty Co-participants in a sport: only owe a duty not to intentionally injure each other or engage in conduct that is not traditional to the sport; Chilling effect Coaches: coaches are different from athletes, but they play an analogous role as coparticipants Owners of Sports Facilities: View 1: Owners of sports facilities have an obligation not to be negligent in the design of the facility; must provide a reasonably safe facility View 2: Owners of sports facilities have a duty to used due care not to increase the risks of the sport (i) they dont have a duty to eliminate inherent risks; ex: ski moguls, ski towers k. No Duty (abolished)

Charitable immunities: normal rules of respondiat superior would not be applied to a charitable hospital Family immunities: family members couldnt file neglig./intentional tort actions against family members Governmental immunity: the government could not be sued for the negligence of its employees l. Release Default rule: waivers not to sue generally enforced Exception (Tunkle standard) Not enforced if: concerns a business of a type generally thought suitable for public regulation D is performing a service of great importance to the public, often a matter of great necessity D holds itself out as willing to perform the service for any member of the public who seeks it essential nature of the service gives a decisive bargaining advantage to D theres a standardized adhesion contract as a result of the transaction, P is placed under the control of D m. Statutes No negligence per se jurisdiction: Life and limb = negligence per se Rules of the road = no negligence per se, but can be considered by the jury Negligence per se jurisdiction = cant recover if you break a law/statute, no matter what type B. Strict Liability 1. Ultra-hazardous dangerous activity a. 1st Restatement: An activity was considered ultra-hazardous if it: necessarily involves a risk of serious harm to the person, land or chattels of others which cannot be eliminated by the exercise of utmost care, and is not a matter of common usage b. 2nd Restatement: To determine if an activity is abnormally dangerous, these factors are considered: whether the activity involves a high degree of risk of harm to the person, land or chattels of others; whether the gravity of the harm which may result from it is likely to be great; whether the risk cannot be eliminated by the exercise of reasonable care; whether the activity is not a matter of common usage; whether the activity is inappropriate to the place where it is carried on; the value of the activity to the community c. Siegler decision: gas truck; ignored some factors (common usage and appropriate to the place); found for P d. 3rd Restatement: an activity is abnormally dangerous if it creates a foreseeable and highly significant risk of harm even when reasonable care is exercised by all actors 2. Products liability a. Manufacturers, wholesalers, retailers, and lessors have strict liability for a defective product b. SL applies to sales, hybrid sale/services, and license to use cases 3. Defective products

a. Manufacturing defects: P must prove that the product departed from its intended design b. Design defects Consumer expectations test: the product did not perform as an ordinary consumer would expect After Soule, can only be used where the products users can create a conclusion of the products safety based on the consumers everyday experience Risk/Benefit Analyis: Learned Hand analysis, weighing cost and benefit 2nd Restatement: talked about SL in terms of reasonableness; not good b/c thats not really SL Landmark decision (Barker decision): ordinary consumer expectation test: the product didnt perform as ordinary consumer would expect risk/utility test (alternative to ordinary expectation test): (i) balancing test gravity of the danger, likelihood that the danger will occur, adverse consequences of making product safer (ii) P has the burden of proving that the products design was the proximate cause of Ps injury (iii)the jury can determine the risk in hindsight/ at the time of trial the product must have been used in its intended or foreseeable manner 3rd Restatement: uses risk/utility test, with reasonable-alternative-design requirement c. Failure to warn 2nd Restatement: consumer should be warned if a danger is not generally known, or if known is one which the consumer would reasonably not expect to find in the product 3rd Restatement: warnings must be provided for inherent risks that reasonably foreseeable product users and consumers would reasonably deem significant in deciding whether to use the product C. Intentional Torts 1. Battery: (1) intentional (2) voluntary act (3) offensive/harmful contact (4) without consent a. Intentional: purpose of causing contact or knowing that contact will occur; transferred intent applies b. Contact Harmful contact: direct or indirect (indirect is something closely attached to Ps body) Offensive contact: depends on context of situation; need not be reasonable if D knows of Ps sensitivity c. Consent: can be explicit or implied 2. Assault: (1) intentional (2) voluntary act (3) causing reasonable apprehension (4) of imminent physical harm or offensive contact a. Intentional: for apprehension of offensive or harmful contact; transferred intent applies. b. Voluntary act: requires physical movement, not just words/threats. c. Reasonable apprehension: a well founded fear of contact, not just being afraid. To find assault, P must be aware and feel apprehension. An actual ability to commence the contact must exist Apprehensions that are not normally reasonable can be so if D knows of the susceptibility. d. Imminent: immediate; threats of future action and conditional threats do not count. 3. False Imprisonment: (1) intentional (2) unlawful exercise (3) confines (4) w/out consent. a. Intentional: purposely or knowingly; transferred intent applies

b. Unlawful exercise: willful act of D c. Confines: restricts liberty of movement; P is aware of confinement. Physical force to self or immediate family. Barriers to escape closing off the only exit(s); no means of escape that P is aware of. Verbal threats imminent; to self or immediate family. False authority by D and submission by P. d. Without consent: if P asks to leave and is permitted to, no FI. e. Exception employers are allowed to use reasonable means of interrogation when questioning employees. 4. Intentional Infliction of Emotional Distress: (1) intentional act (2) extreme and outrageous in nature (3) causing severe emotional distress. a. Intentional act: caused by intentional and willful actions. b. Extreme and outrageous: goes beyond all bounds of decency Abuse of positions of authority. Ds knowledge of Ps particular sensitiveness. c. Emotional distress: resulted from Ds actions; actual physical manifestations are not required 5. Defenses a. Consent Implied: acts beyond scope of what is impliedly consented to are no longer consented to; touch football. Express b. Self-defense: (1) using a reasonable means of force (2) because of an imminent fear of bodily harm/death Reasonable force: measured based on the available options Imminent fear: the use of force is based on a well-founded, immediate apprehension. c. Retreat

BREACH A. Use duty to establish proof of negligence 1. Circumstantial proof: no direct evidence, the case must be established in other ways 2. Constructive Notice: the substance was there sufficiently long that it should have been discovered and cleaned a. General negligence is insufficient; there must be negligence with respect to the specific harm or accident 3. Business practice rule: used in self-service operations (supermarkets) where hazardous condition regularly arises a. P only has to prove that the store was negligent in its overall safety practices but does not have to prove negligence with respect to particular harm; some courts require proof that particular hazard regularly arises b. imposes close to strict liability 4. Res Ipsa Loquitor: the accident speaks for itself a. P is unable to point to a particular action by D that was negligent, but can show that: the accident would not ordinarily occur without negligence D had exclusive control over the accident P did not contribute to the accident

b. Modern view: Escola expansive interpretation; res ipsa loquitor was applied even though the bottle had been handled by more people than D c. Ibarra (injury to shoulder after surgery; medical malpractice) res ipsa loquitor could be applied to a group d. defective product suit against hospital: court applied Ibarra standard (P must bring all possible Ds in action)

CAUSATION A. Cause in Fact: establishes the actual cause of Ps harm 1. But for test: But for Ds negligence, P would not have suffered harm a. Exception: where there is more than one cause of the harm, each cause can be liable if they were a substantial factor in bringing about the outcome. 2. Multiple Ds a. Concurrent liability: conduct of D and 3rd party(s) caused harm; each is a substantial factor Joint and several liability b. Joint and Several liability: where there are several Ds who were negligent and who were but-for causes, P can recover full damages from one of the Ds In CA, no joint and several liability for pain and suffering damages c. Alternative liability: multiple possible Ds; true D unknown; not acting in concert Burden of proof for exculpation shifts to D

d. Market share doctrine: DES cases, where exact manufacturer is unknown P must bring the action against manufacturers of a substantial share of the market burden of proof shifts to D D can exculpate himself by proving that he was not the manufacturer (ex: wrong color pill) Liability (majority): D only liable for the percent of the damages equal to that Ds percent of the market some courts based the market on national market, some based it on state market B. Proximate Cause: Puts a limitation on liability for policy reasons, even where D was negligent 1. Intervening cause a. Does not completely bar recovery, but more intervening acts = lower likelihood of liability (1 house fire rule) 2. Unforeseeable harm: a different type of harm than what actually occurred was foreseeable, but the harm that occurred was not foreseeable a. Polemis rule: P can recover if the harm was directly caused by Ds actions; can be no intervening causes b. Wagon Mound rule: there is no recovery for unforeseeable harm 3. Unforeseeable P a. Cardozo (Palsgraf): if there is no foreseeable risk to P, then P cannot recover; no duty to an unforeseeable P b. Andrews rule: P can recover if there is a direct link; favors P factors to help decide: (1) natural and continuous sequence, (2) but-for cause, (3) direct connection without too many intervening causes, (4) remoteness in time or space c. Rescuers are always deemed foreseeable 4. Intervening Acts a. If there is an intervening act by a 3rd party, that cuts of liability to D Ex: heating block case; Dissent: if the negligence that intervened was foreseeable, D should still be liable 5. Medical treatment: D is liable for any harm resulting in medical treatment to any P that D has negligently injured 6. How to approach a proximate cause issue: a. (1) Was the harm was foreseeable? if no, P would not be able to recover in a Polemis jurisdiction if yes, move on to section (2) b. (2) If the harm was foreseeable, but was not foreseeable as to P, can P recover? not in a Cardozo jurisdiction yes in an Andrews jurisdiction; move to question (3) c. (3) If there are intervening acts between Ds actions and Ps harm, can P recover? Minority view: no, intervening gross negligence, or knowledge of danger, by 3rd party cuts off Ds liability Majority view: yes, gross negligence does not cut off liability if the negligence/incident was foreseeable DAMAGES A. Focus on whether there are legally recognized damages 1. Emotional distress 2. Compensatory damages for physical injury a. Medical expenses

b. Lost earnings/ future earnings c. Pain and suffering 3. Damage to property B. Without damages, there can be no liability C. Seffert v. Los Angeles Transit Lines 1. Traynor dissent: a. Orderly distribution of damages b. More people should be awarded less money D. Single recovery rule: you can only recover once, so you must bring all claims for damages in the first suit DEFENSES A. Contributory negligence: Ps conduct was unreasonable and contributed to the harm 1. Focus is on Ps negligence 2. Absolute bar on recovery B. Comparative negligence: recovery award decreases, as Ps negligence increases 1. Focus is on Ps negligence 2. Not an absolute bar 3. Pure Comparative negligence a. the jury is instructed to evaluate the degrees of negligence of P and must reduce the award by the percent of which P was negligent b. doesnt matter if P was more negligent than D 4. Modified comparative negligence a. P can recover from D, less the percentage of negligence that P contributed b. if P was more negligent than D, then P cannot recover C. Release 6. Default rule: waivers not to sue generally enforced 7. Exception Not enforced if: a. concerns a business of a type generally thought suitable for public regulation b. D is performing a service of great importance to the public, often a matter of great necessity c. D holds itself out as willing to perform the service for any member of the public who seeks it d. essential nature of the service gives a decisive bargaining advantage to D e. theres a standardized adhesion contract f. as a result of the transaction, P is placed under the control of D D. Assumption of the risk 1. Implicit assumption of the risk: P voluntary accepts a specific, known, appreciated risk and voluntarily encounters it 2. Traditional view: a. Focus is on Ps negligence b. Absolute bar on recovery for reasonable or unreasonable assumption of the risk 3. Assumption of the Risk after Li a. unreasonable: where the assumption of the risk is unreasonable, it merges into comparative fault; so P is not barred from recovery, but may have their recovery reduced b. reasonable: the court did not address reasonable assumption of the risk, so it stays the same P cannot recover if the assumption of the risk was reasonable

this didnt make sense, because a reasonable person could recover less than another unreasonable person 4. Assumption of the risk (Modern View): a. Completely merged into comparative negligence; only the name really remains MISCELLANEOUS D. Standard of Care 1. Learned hand test: likelihood that harm would occur given Ds conduct, how serious harm will be if it occurs, how much it would cost to avoid accident 2. Upmost Care Standard: common carriers are held to the standard of upmost care (airplanes, rides, elevators) - Andrews 3. NY returned all cases to normal negligence standard, but CA maintains the standard of upmost care 4. Custom standard: D cannot show lack of negligence based on what is customary, but it can be presented as evidence E. Statutes: courts have used the statutory standard to set the standard of care 1. negligence per se (Martin buggy with lights of case) 2. life or limb statute v. rule of the road statute (tedla case walking on wrong side of highway); establishes an excuse where it is safer to violate the statute than to comply 3. courts may, but do not have to, adopt the standard of a statute as the standard of care if the statute is aimed at protecting someone from the type of harm that occurred a. licensing statutes are usually not thought to create negligence per se F. Role of judge and jury 1. Learned Hand: determination of negligence is for jury; sometimes judges take the case away from the jury and rule as a matter of law that something is negligent (railroad cases; contributory negligence) 2. Holmes was for limiting the jurys role (Goodman) 3. Cordozo felt that having an iron clad rule would be foolish and that cases should be given to the jury 4. current minority feel that judge should have discretion over the jury; modern majority is that the jury should decide G. Judges 1. Oliver Wendell Holmes, Jr. >> U.S. Supreme Court. a. Author of The Common Law. b. Did not believe in loss sharing, ~the cost of faul c. Historical context of the law, the life of the law is not logic, it is history. d. Did not want to give negligence cases to juries b/c of sympathy-bias. 2. Judge Cardozo >> NY Court of Appeals and U.S. Supreme Court. a. Eliminated privity requirement in PL/warranty cases. 3. Judge Traynor >> CA Supreme Court. a. **Loss distribution in a mechanized society! b. Disagrees w/ pain and suffering damages in negligence cases. c. Manufacturer incures absolute liability for products he places on the market. 4. Judge Tobriner >> CA Supreme Court a. In products liability cases, moving away from negligence but not all the way to absolute liability. b. Tarasoff expanding the duty requirements to psychologists. c. Led the body of CA cases where express agreements not to sue were not enforced for policy reasons, (Dalury, ski resort.)