TORTS by cs49KdsJ


I. Introduction
   A.   Torts – a civil action, other than contract.
        1. Damages - court awards $ damages. How does defendant pay these damages?
           How does it effect the defendant?
           a. Injunction – court requires someone to do something VERY RARE, usually
              just award money damages.

        2. Policy – compensate injured party as much as possible, prevent violent
           response, deter conduct in the future

        3. Theories of Tort Law pre 1850
           a. Absolute Liability – if I take someone to a bar and a sword falls on
              them, I‟m liable.
           b. No tort law – merely broad see of immunities
              a. Family, gov‟t immunity, charitable immunity (churches)
           c. Not enough info to make an assertion
           d. Distinction btn trespass and case. Look at forms of action
              a. Trespass – direct injuries, but no damages required.
                 i. intentional torts grew out of this
              b. Case – indirect injuries, but damages required
                 i. negligence grew out of this, so therefore need to show damages
                    to recover

        4. After 1850 in order to show liability must show that someone is either
           negligence or intentional
              a. Malone, even if care taken or P was careless, D still liable
                   i. if you have duty to take care, you should be liable, not
                       anyone else that might have hurt me
                  ii. rests on absolute liability
              b. Weaver v. Ward - Beginning to think about negligence not just
                  absolute liability.
              c. Brown v. Kendall
                 i. a person must show intention was unlawful or that the defendant
                     was at fault. Direct action isn‟t enough
                ii. Plaintiff has the burden of proving fault now

        5. Trespass v. case - If not enough there for trespass, then case (group of
           actions not formally listed)

    A. Generally
       a. Requirements
                i. Purpose, intent (either or, but don’t need not both)
                       1. intent to bring about a contact
                       2. even if intended a different kind of tort, still liable
                          for the one actually committed
                             a. ie, transferred intent or intended an assault but
                                actually battered the person
               ii. Knowledge w/ substantial certainty of harm
                       1. As risk increases and knowledge of that risk increases you
                          move from negligence to intent.
                       2. Garratt - Look at particular child to determine what he
                          knew and base it on age, intelligence, experience relevant
                          to determine what he knew as opposed to a generalized idea
                          of what kids at that age do. So it isn‟t just about his
                          age, it is about his total package
                             a. Court treatment of children (only some courts do

                                 i. Under 7 – conclusively incapable
                                ii. 7-14 – presumed incapable but can be shown
                                    capable of intent. Thru witnesses
                               iii. 14+ - presumed capable
                                iv. Most court prefer garret test
   b.   Liable for all results that occur bc of anti-social act.
   c.   Negligence v. intent
              i. Negligence – risk
                     1. liability – injuries proximately caused by negligent act.
                        Proximate cause enables courts to separate the forseeable
                        from the unforeseeable of the event.
             ii. Intent – risk gets more substantial so knowledge w/substantial
                  certainty increases toward intentionality
                     1. liability – for all damages foreseeable or not. D‟s act is
                        evaluated by its character and consequences as the shed
                        light on intentional nature of act
   d.   Damages
              i. Actual - all damages that flow from the injury, even if not
             ii. Nominal – if no physical damages can still recover nominal to
                  make D pay for something
            iii. Punitive damages can be recovered if act is outrageous or
   e.   There is Implied consent to some contact in the „crowded‟ world. (Wallace
        v. Rosen)
              i. But don‟t consent to rude touching or actions that person should
                  have known w/ substantial certainty that he could hurt someone.
   f.   Transferred intent (3rd party injury) - intent is to injury A, but B is
        injured, B can sue and recover.
              i. No transferred intent against inanimate object – if throw
                  something at a pole and injures person that D didn‟t see, no
                  battery, no recovery
             ii. Works for all intentional torts except IIED.
                     1. Exception to IIED – P is present when D hurts P‟s family
                        member and D knows about Ps presence
   g.   Thin skull rule – take P as you find him. If p has thin skull and injured
        by an act that would not injure a regular person. D is liable for ALL the
        resulting injury, even the injury that comes from existing thin skull

B. Battery
      a. Purpose – prevent retaliation, protect persons from intentional and
         unpermitted contacts.
      b. Requirements
            i. Intent - acting w/purpose or knowledge w/substantial certainty
               of risk
                  1. intent to do harm is not essential, just intent to bring
                      about the contact
           ii. Contact – harmful or offensive
                  1. Physical contact is not necessary to constitute a battery
                      so long there is contact w/ clothing or object closely
                      identified. Fisher v. Carrousel
          iii. No consent (this could be a defense)
      c. Mink v. U. Chicago, DES w/out knowledge is battery. Deliberate intent
         to deviate is present (offensive contact).
      d. battery w/out an assault - If someone comes from behind and hits you.
         You don‟t see it coming so don‟t have an assault. If the from the
         front, there would be the apprehension of harmful or offensive contact
         bc see the punch coming

     e. technical battery - all the elements are met, but there are trivial or
        no physical damages.
     f. There is battery when one plays a joke on another that involves
        harmful or offensive contact (Lambertson v. US)
     g. No physical injury requirement

C. Assault
      a. Elements
            i. Intent to cause contact (ie, attempted battery) or apprehension
               of offensive or harmful contact; AND
           ii. There is reasonable apprehension of harmful or offensive contact
                  1. Bouton (not reasonable apprehension. It was halloween) –
                     look at reasonable person and circumstances
                  2. apparent present ability – D must be near enough and be
                     able to make the assault
                  3. threat of future harm doesn‟t work
                  4. doesn‟t necessarily have to be afraid to apprehend the
          iii. No consent (but this is a defense)
      b. there must be a gesture, words are not enough (Conley v. Doe)
            i. showing the gun isn‟t enough, need to do something w/it, unless
               that person is a murderer
      c. Purpose – prevent retaliation. individual‟s dignity is part of
         assault. People can‟t go around threatening and hurting everyone

D. False Imprisonment
      a. Requirements
            i. Intent to confine
           ii. Confinement
          iii. Consciousness or harm (or harmed part of this is not supported
                by case law)
      b. Physical force not necessary – power, influence, physical
         intimidation, verbal threat of future harm is sufficient (Whittaker v.
         Sandford – physically restrained on boat, bc capt wouldn‟t let her
      c. Implied threat of physical restraint is sufficient (Dupler)
      d. Reasonableness is at center
      e. Still FI, if P doesn‟t know about a reasonable escape
      f. If imprisoned and only option is to do something dangerous – that is
         still false imprisonment
            i. escape must be reasonable to not get false imprisonment
      g. Hypos
            i. go to get purse left at party and person won‟t give it back.
                Can‟t go anywhere w/out purse (keys, money, etc). FI
           ii. drunk at party and friend won‟t give you keys. Not FI bc as
                social policy don‟t want drunk drivers

E. Intentional Infliction of Emotional Distress
      a. Elements
            i. Conduct was intentional/reckless
           ii. Conduct was extreme and outrageous
                  1. can come if one knows the other is peculiarly susceptible
                     to emotional distress
                  2. doesn‟t include the basic indignities of the world
                  3. must go beyond the bounds of decency
          iii. Causal connection btn act and distress
           iv. Distress was severe
                  1. sought medical attention for the distress

                    2. physical harm – though this is not really required, but it
                        is a guaranty of IIED
                    3. reasonable person standard
                           a. exception – if D had notice that P was unusually
      b.   Restatement
              i. Thru extreme or outrageous conduct intentionally or recklessly
                 causes distress
      c.   on continuum - grotesquely intentional acts on one end and purely
           negligent acts on the other
      d.   Context is important – difference btn talking to a marine and a
           refined lady
      e.   Aggravated and repeated actions can be sufficient. Each on their own
           is not enough but as an aggregate they are bad
      f.   Public figures (hustler)
              i. Can‟t recover IIED for ad parody, bc not false statement of fact
                 and not done w/ malice (knowledge that statement was false or
                 w/reckless disregard as to whether or not it was true
             ii. Ad parody can‟t be reasonably believed
            iii. can‟t use outrageousness claim here – subjective and people
                 could recover just bc it was offensive to the jury
      g.   Why severe standard?
              i. Toughen the mental hide, prevent flood of suits
      h.   Problems – faking of claims. How do you show IIED?
      i.   IIED is not recovery from emotional pain and suffering from injury
           from another tort

F. Trespass
      a. Generally
            i. Requirements
                   1. Entry upon the land of another (w/out permission – might
                      be a defense) whether or not one knows they are doing
                         a. Intent to harm the land isn‟t necessary
                   2. intent, negligence or strict liability
           ii. Not about damage done, though law infers damage even if it is
               minimal (Doughtery v. Stepp)
          iii. Need tangible intrusion to constitute trespass
                   1. intangible intrusion may give rise to trespass if they can
                      show physical damage to property (Public Service Co of CO
                      – no physical damage shown, just an annoyance
                         a. Most jurisdictions don‟t allow for recovery for
                             intangible intrusion
      b. Trespass to Land and Nuisance
            i. Nuisance – interference w/ use and enjoyment of property, but no
               real damage
           ii. Minority rule (and not really trespass) - Modern trespass - for
               indirect invasions that were once just a nuisance, P must show
                   1. invasion affecting interest in exclusive possession of
                   2. intent
                   3. reasonable forseeability that act could invade
                   4. substantial damage
      c. Trespass to Chattels
            i. Intentional interference with the chattel of another with some
               actual damage to it (Huffman, p. 71)
           ii. No intent to do harm is necessary
          iii. Must be actual harm and damage (loss of possession for a period
               of time is sufficient actual harm
                   1. so no nominal damages like in trespass

   G. Conversion
         a. Definition (restatement)
               i. An intentional exercise of dominion or control over chattel
                  which so seriously interferes with the right of another to
                  control it that the actor may justly be required to pay the
                  other full value of the chattel.
              ii. Intentional destruction or material alteration of chattel will
                  subject actor to liability for conversion
             iii. Factors to determine if interference was trespass or conversion
                     1. Extent and duration of actor‟s exercise of dominion or
                     2. actor‟s intent to assert a right inconsistent w/other‟s
                        right of control
                     3. actor‟s good faith
                     4. extent and duration of interference w/other‟s right of
                     5. harm done to chattel
                     6. inconvenience and expense caused to the other
         b. Conversion v. trespass to chattels
               i. Conversion
                     1. measure of damages is strict – court can decree a forced
                        sale of property from rightful possessor to the converter
                     2. award of full value of the chattel
                     3. can be obtained w/only nominal damages
              ii. trespass to chattel
                     1. when intermeddling falls short
                     2. damages are not whole value of property. It is actual
                        diminution in its value bc of interference
                     3. liability exists only when actual damage
             iii. amount of control and interference is more in conversion
         c. Dickens v. Debolt (punitive damages for conversion re eating fish)
         d. Docs taken that aren‟t protected under property law, cannot fall under
            conversion (Pearson v. Dodd)

III. Defenses/Privileges
       exempts D from liability for an intentional tort even if concedes to
         facts that caused the intentional tort
       policy justification for the tort itself
       jokes and mistakes are not defenses
   A. Consent as a Defense to Battery
         a. Medical Arena
               i. Elements of Consent
                     1. Pt is unconscious, or
                     2. During op dr found something that if not dealt w/ would
                         endanger life or health, dr can perform op
                     3. p must prove her lack of consent
              ii. Elements of Battery (Ashcraft-HIV blood)
                     1. consent was conditioned by use of fam blood only
                            a. limits consent
                     2. D intentionally violated that condition
                     3. P suffered harm
                     4. In Ashcraft, if blood wasn‟t tainted, not enough for
                         recovery bc no physical harm
             iii. Mohr(left ear, right ear) didn‟t meet elements
                     1. If performed w/out consent and not necessary then
                         wrongful/unlawful and offensive so could be A& B
              iv. P’s elements to recovery
                     1. nature and extent of injury

                 2. beneficial nature of op
                 3. good faith of Dr.
           v. informed consent (Pauscher) – P will lose bc can‟t show it
              caused any harm. Need to show that would have decided
              differently if given the chance
     b. Sports Arena
           i. Individuals assume ordinary risk of activities but courts will
              allow recovery if it is reckless/intentional tort and not
                 1. intent – purpose, knowledge w/substantial certainty
                        a. ie, punch in the nose
                 2. reckless – individual realizes there is a strong
                     probability that harm will result
                        a. Vandall – doesn‟t like reckless aspect – too close
                           to negligence
          ii. Must go beyond was is ordinarily permissible behavior in the
              particular game to recover
         iii. One standard (rejected by Marchetti) - Look at p‟s consent to
              the game, then look at the rules of the game and then figure out
              if P consented to that particular touching that caused the
              injury. Court said too complicated
          iv. Hackbart – intent, unlike Marchetti. Court found for P, football
              customs/rules don‟t approve
                 1. There would have been liability had it been in an ordinary
                 2. Role of football in American society is addressed here.
                     Highly visible sport so need to be aware of its effect on
     c. Other Arenas
           i. Consent is not a defense for assault and battery bc A&B is
              unlawful. Could be a mitigating circumstance (Teolis)
                 1. other side – consent to an illegal fight is valid so loser
                     won‟t bring a suit
          ii. corporal punishment (Thomas)
                 1. teacher has discretion but to avoid liability must look at
                        a. nature of punishment
                        b. kid‟s misconduct
                        c. teacher‟s motive
                        d. age/physical condition of kid
     d. Mistaken Consent
           i. If D didn‟t know either, then consent is effective
          ii. If D did know and kept it from P then consent is ineffective

B. Self defense
      a. Person can use reasonable force to defend themselves, prevent harmful
         or offensive bodily contact or threatened confinement
            i. Force has to be parallel.
           ii. Before force can be used, a request to cease and desist must be
               made. Then reasonable forces can be used.
          iii. Deadly force can‟t be used until necessary for self-defense
               against threat of death or serious bodily harm.
           iv. Can‟t be used if a tort is already committed.

C. Defense of others – can use reasonable force to family members and even
   strangers being attacked.
      a. If step in and help a stranger and you mistakenly believe the other
         party is the aggressor and they aren‟t can‟t use privilege to get out
         of it.

D. Defenses to False Imprisonment
      a. Consent is a defense to FI
      b. Implied limitation to consent (Noguchi) – if D violated the limitation
         to consent that is FI
      c. Can have FI in a car bc of its mobility and dangerous to get out of
         while moving
      d. Cults - Ok for parent to step in when adult child‟s judgment is
         impaired. These limitations aren‟t deprivations of personal liberty to
         support FI (Peterson)
            i. Peterson – looks at her participation while “imprisoned”
           ii. Policy – society has interest in intervening w/cults. Don‟t want
               to endorse self-help
      e. if D had reasonable belief that P had stolen chattel, then privilege
         to detain her for a reasonable investigation of the facts. If jury
         finds D didn‟t come within this privilege, then can find for false
         arrest. (Bonkowski)

E. Defenses to Trespass to Land and Chattels
      a. Rule
            i. Reasonable force
           ii. Duty to use words first, unless the harm appears as if it will
               occur immediately
      b. No privilege to use force intended or likely to cause death or serious
         injury against person entering and meddling in chattel or land unless
         he threatens death or bodily harm to owner
      c. Can inflict force by mechanical means in the absence of the owner,
         only if he would be privilege to use similar degree of force if he
         were present and acting himself
            i. No privilege to use force, deadly or serious injury, to repel
               trespasser to land or chattel unless it is threat to personal
               safety. (Katko)

F. Necessity
      a. Private Necessity
            i. Necessity Doctrine – privilege of private necessity defeats a
               trespass. you can go on another‟s property in order to preserve
               life and you won‟t be liable for trespass (Ploof)
                  1. not a complete defense – even if exercised due care, if
                     damaged property, then liable. – Vincent v. Lake Erie
                        a. in Ploof, if boat had remained and caused injury to
                           dock, then boat would have been liable for dock
                        b. do a cost benefit analysis to

     b. Public Necessity
           i. Private rights of individuals yield to the consideration of
              general convenience and interests of society
                 1. sacrifice on to save the lot (Surocco)
                 2. must be reasonable apprehension of necessity for D to not
                    be liable
                 3. 5th amendment re eminent domain doesn‟t apply under public
                    necessity - in public necessity can take w/out
                        a. Eminent domain – can‟t take private property for
                           public use w/out just compensation
                        b. Exxon in Manila, US destroyed plants to keep out of
                           enemy hands. Exxon can‟t recover bc of public

                           c. Takings is a planned activity unlike public
                              necessity and what is taken is usually less
                     4. exception to the rule – Wegner
                           a. Third Party issues – when 3rd party is damaged by
                              police in course of catching a suspect, property is
                              damaged for public use so compensation allowed. If
                              allowed public necessity, innocent people wouldn‟t
                              be able to recover (wegner)
IV. Duty
 Must show D owed a duty to P. this a matter of policy as defined by the court.
   If reasonable person should know they will cause injury, then they have a duty
   not to do it
   A. Obligation to Assist Other
         a. D doesn‟t owe P a duty if P is in a perilous position that D could
             then be injured in the rescue (Yania) perhaps a moral obligation is
             owed but courts don‟t deal w/that.
                i.   Economic analysis – how great is the cost to D in the rescue?
                     What is the benefit of the rescue (a life saved perhaps)?
               ii.   Other view – VT statute – duty to rescue if not going to put
                     you in danger
              iii.   Exceptions where duty is owed
                       1. common carriers to passenger
                       2. innkeepers to guest
                       3. spouse to spouse
                       4. parent to children
                       5. Minority rule (Farwell) – friendship was a special
                          relationship and duty was owed
         b. If you are the only one around, then you have a duty
         c. Factors in determining duty
                i.   Foreseeability of harm
               ii.   Degree of certainty of injury
              iii.   Connection btn D‟s conduct and P‟s injury
               iv.   Moral blame
                v.   Policy of preventing future harm
               vi.   Extent of burden to D
              vii.   Administrative factors - consequences to community of imposing
                     duty to exercise care
                       1. a question for the courts – what are we going to do in the
                          next case
                       2. will there be a flood of suits, will it prevent biz
            viii.    Availability, cost and prevalence of insurance for risk
         d. Who determines duty?
                i.   Primarily – the judge
               ii.   If judge says yes to duty, then for the jury to answer whether
                     there are facts that answer the question
              iii.   Once duty found, attach obligation of reasonable care
         e. If there is action already been taken, then you have a duty to
             exercise reasonable care.
         f. If one knows that a third person is ready to give aid to another and
             negligently prevents the third person from doing so, he is subject to
             liability for harm cause by absence of aid. (Soldano)
         g. Duty can‟t rest on a bare promise
                i.   Exception - duty when there is a promise plus reliance and
                     physical injury
         h. Dr has duty to tell patients of dangers of medical devices

           i.    If dr finds that past med causes cancer need to balance it with
                 the difficult of finding files, etc. today, bc of computers
                 probably a duty
      i. Nonfeasance – failure to act when a duty to act existed.
      j. Misfeasance – lawful act performed in a wrongful manner. Start but
         don‟t finish or do it negligently
            i.   As opposed to Malfeasance – wrongful or unlawful act

B. Privity: Suits by Third Parties
      a. Def of privity – relationship btn 2 parties having legally recognized
         interest in the same subject matter (ie, a transaction, proceeding,
         property, etc.
            i.   Privity of contract – allows parties to sue each other, but
                 prevents a third party from doing so.
      b. Prevents indefinite liability
            i.   Strauss – even if negligent, duty may not extend to an injured
                 party bc of privity bc of court fear of suits
           ii.   Even though it was foreseeable courts care about containing
                 liability in these cases more than foreseeability
      c. Insurance and privity
            i.   courts tend to not allow privity if P doesn‟t have insurance
           ii.   allow privity when parties have insurance, bc cost can be
                 spread or covered
      d. Moch - Cannot maintain an action against someone contracting with the
         city to furnish water to hydrants unless an intention appears that
         promisor is to be answerable to individual members as well as the city
         for loss ensuing from not fulfilling promise. No intention here.
            i.   Non-feasance – no or insufficient action so no duty. Hadn‟t
                 gone forward far enough
           ii.   P claims misfeasance, gone far enough to continue bc entered
                 into K

C. Professionals
      a. atty not liable for mistake in judgment that is within the area of
         reasonable care
            i.   Judgment
                   1. w/in area of reasonable care, no liability (Lucas)
                         a. Vandall doesn‟t like Lucas holding. Attorney should
                            have referred to someone
                   2. outside area of reasonable care, liability
      b. when no privity, privity is not a defense (ie, notary public)

D. Duty to Control Others – duty to warn
      a. Dr/pt relationship duty to exercise reasonable care to protect a
         specific 3rd party against danger from pt. (Tarasoff)
            i.   weigh public interest w/ patient‟s privacy – usually public
                 interest outweigh‟s patient‟s privacy when threat to harm
           ii.   looks at violence as opposed to patient‟s privacy
          iii.   could be statute, code of conduct, etc that requires or
                 suggests this duty over confidential relationship
      b. Parent/child – parent has duty to warn babysitter of violent nature of
      c. If no special training or relationship to know for certain that harm
         is imminent, no duty bc you could be wrong and end of defaming
         character if you don‟t know what you are talking about
      d. Tort of negligent entrustment – combined negligence of both the one
         entrusting the car to an incompetent driver and of the other in its
         operation (Vince)

           i.    One who supplies a chattel for use of another who supplier
                 knows or has reason to know that its use of chattel will
                 involve unreasonable risk of physical harm to himself and
                 others is subject to liability for harm resulting
           ii.   Classic – when drunk person asks to borrow car and you give
                 them the keys
          iii.   Society likes this – if only allowed to sue driver, who
                 probably doesn‟t have any money then no point in suing.
      e. Media - tv owes no duty to victims of acts imitated from tv. First
         amendment would be too restricted if allowed action
      f. Good Samaritan Laws – allow dr to be relieved from liability if gives
         assistance at scene of emergency unless gross negligence
      g. Voluntary undertaking – One who assumes to act, even though has no
         obligation to act, may become subject to the duty to act with due care
         and be subject to liability if harm occurs.
            i.   Vandall thinks this is a stretch of a duty

E. Emotional Harm - Negligent Infliction of Emotional Distress
      a. Fear of cancer - In absence of present physical injury or illness,
         recovery of damages for fear of cancer should be allowed if P proves
         fear stems from knowledge, corroborated by reliable medical and
         scientific opinion that it is more likely than not that cancer will
         develop in the future. As a result of D‟ negligent breach of duty owed
         to P, P is exposed to a toxic substance which threatens cancer
      b. Problems
            i.   Foreseeability – how do you determine this?
           ii.   difficult to determine emotional distress
      c. Recovery
            i.   Impact rule – don‟t need to have actual physical impact in
                 order to recover for NIED as long as there is some injury (ie,
                   1. If fright was consequence of dangerous situation brought
                      by D‟s negligence, that causes nervousness, shock,
                      convulsions and consequent illness, then negligence was
                      proximate cause of injuries
           ii.   Zone of danger – must be within zone of danger to recover
                   1. mom is not in zone of danger, when nurse drops baby, bc no
                      risk of mom being dropped
          iii.   Third Party test – Thing (gets rid of zone of danger)
                   1. P can recover for ED caused by observing injury of a 3rd
                      person if
                         a. p is closely related to injury (what constitutes
                            closely related?)
                         b. P is present at the scene when it occurs and is
                            aware of injury (what constitutes hearing presence?
                            Hearing the accident?
                         c. as a result suffers serious ED
           iv.   Resulting physical injury – resulting injury from emotional
                 distress (ie, heart attack)
            v.   Parasitic tort – ED is available as a parasitic damage in
                 negligence actions for physical injury
           vi.   Unique Facts of a situation – even if no physical injury can
                 still recover if dangerous situation could have occurred
                   1. some guarantee of genuineness (Quill, Potter
      d. Direct v. bystander – this is attenuated as a standard for recovery
         for NIED
      e. Physical injury requirement
            i.   Purpose – prevent flood of suits

             ii.    Underinclusive - would limit those really valid cases where
                    fear is serious and genuine even tho no injury
             iii.   Overinclusive - allows recover for fear of caner when distress
                    accompanies even the most trivial injury
         f. TX Cases –
               i.   Garrad - There is a duty to not negligently interfere with dead
              ii.   Boyles – overrules Garrad
                      1. can only recover if D breach‟s another legal duty
                         (battery, negligence, FI,, ect)
                      2. no duty to not negligently inflict emotional distress
                      3. no physical injury requirement
                      4. doesn‟t affect bystander rule
                      5. looked to Thing

   F. Injury to Unborn Children
         a. Preconception Issues
               i.   Foreseeability - risk of harm was reasonably foreseeable so
                    there is a duty – delay btn act and injury shouldn‟t keep the
                    case out of court
                      1. Right to be born free from prenatal injuries foreseeably
                         cause by breach of duty to child‟s mother
                      2. Not only factor though
              ii.   Can recover for act done prior to conception where the D would
                    be liable for same conduct had the child, unbeknownst to him
                    been conceived prior to the act
             iii.   Policy (Renslow)
                      1. Science has developed various techniques which can
                         mitigate or alleviate child‟s prenatal harm so we should
                         extend duty. – could have fixed the problem early on to
                      2. Administrative issue – this case is not likely to be
                         replicated. No flood of cases so not worried.
                      3. Prospective application – past kids born can‟t recover,
                         only for kids moving forward.
              iv.   Courts problem w/ these types of cases
                      1. No person in existence at time of injury
                      2. Does d have a duty to a person not in existence at the
                         time of the negligent act?
                      3. Med mal – but can apply to car crashes too
         b. Wrongful Life (Viccaro)
               i.   Usually child can‟t recover for wrongful life
                      1. loss is too speculative
                      2. can‟t quantify this
                      3. shouldn‟t even think about it
              ii.   But parents can recover for medical expenses, etc or child
                    rearing cost, etc depending on the case
                      1. viccaro – negligent diagnoses lead to child with severe
                         congenital birth defects
                      2. burke – faulty sterilization lead to birth
             iii.   No double recovery for parent‟s and child

V. Negligence - imposes an unreasonable risk upon another resulting in injury
   A. Elements
         a. Duty - must show D owes duty to P. this is a matter of policy. Defined
            by the court. if reasonable person should know they will cause injury,
            then they have a duty not to do it.
         b. Breach - must show there was a breach of the duty, failure to exercise
            reasonable care.

     c. Cause-in-Fact - must show D‟s conduct was a cause-in-fact in P‟s
        injury. Matter of science - had something to do with injury
     d. Proximate Cause – matter of policy. Even if shown that D had a duty to
        P, was careless, was a CIF of the injury, we may want to draw a line
        to sever liability.
           i. gun cases – wanting to hold manufacturer liable for victims of
              gun shots. Drew a line and said no liability
     e. Damages – must show damages. Physical, emotion

B. Standard of Reasonable Care
      a. The Reasonable Person Standard – what a reasonable prudent person
         would do – objective standard
            i. Stupidity is not a defense
           ii. Handicapped – what an ordinary handicapped person in D‟s
               position would do
                  1. look at familiarity of surroundings, special training and
                      other senses
                  2. public policy – want handicapped to be able to live in the
                      world so can‟t hold them to „normal‟ person standard.
          iii. Inebriation – liable when drunk or high bc it is a temporary
               state brought on by the drunk person
           iv. Children
                  1. child standard – reasonable care for child of like age,
                      intelligence, experience under like circumstances
                      (objective and subjective)
                         a. minority view
                               i. Under 7 – conclusively presumed incapable of
                              ii. 7-14 presumed incapable but as approaches 14
                                   presumptions are rebuttable
                             iii. 14+ - presumed capable but facts could show
                                   they were unusually immature
                              iv. Compare this minority view w/intentional tort
                                   – intentional tort is purely subjection -
                                   looks at individual child to see what that
                                   child knew
                  2. Exception - use adult standard when kid engages in
                      inherently dangerous activities (ie, cars, guns, etc)
                         a. if don‟t, then kids could get out of engaging in
                            certain dangerous activities by comparing to what
                            other kids would do
            v. Duty to Inspect Vehicles – absolute duty to inspect car and
               avoid dangers to others
      b. Unreasonable risk – D‟s conduct imposed an unreasonable risk of harm
      c. Economic Argument for determining Whether Conduct was so risky it was
            i. B <PL – cost/benefit analysis (Hand analysis)
                  1. B = burden of adequate precautions
                         a. Not only cost to person, but also broader social
                            utility of conduct he wouldn‟t be doing
                  2. P = probability of injury
                  3. L = gravity of injury
                  4. more serious the injury the less probable its occurrence
                      need be before D is held liable for negligence
                  5. if reasonable person realized that potential injury would
                      be grave, there can still be liability even if the chance
                      of the injury is small
      d. Custom – not conclusive but will be looked at to determine reasonable

        i. TJ Hooper – even if D shows that everyone is doing it, jury can
           still decide if it is unreasonably dangerous and thus negligent
       ii. Look at cost of remedy to determine
e.   Emergency Doctrine - When actor is faced w/sudden/unexpected
     circumstance that leave little or no time for thought or deliberation
     or causes actor to be reasonable disturbed that actor must make speedy
     decision w/out weighing alternatives, act may not be negligent if
     actions taken were reasonable and prudent in emergency context
        i. Why can‟t use in car crashes?
              1. one driver brought it upon themselves
              2. reasonable person std still applies
              3. must be split second and car crashes aren‟t
f.   Degrees of Negligence
        i. Slight Negligence – failure to exercise great care
              1. 5 mph over speed limit
              2. getting close to strict liability – liability w/out
       ii. Ordinary negligence – failure to exercise ordinary or reasonable
              1. 12 mph over speed limit
      iii. Gross negligence – absence of even slight care
              1. going over 40 mph above speed limit
              2. this is close to intent
g.   Automobile Guest Passenger Statutes – passenger can recover from host
     driver when driver is more than ordinarily negligent
        i. Policy behind statute
              1. prevent collusion and fraud
              2. preserve hospitality of host driver (driver would be
                  scared of doing something wrong)
       ii. Most states have found unconstitutional bc of equal protection
h.   The Professional
        i. Doctors - dr is presumed to possess degree of skill and
           learning possessed by the average member of the profession and
           to apply that skill and leaning w/ ordinary and reasonable care
              1. Expert Testimony
                     a. standard of med practice must be shown by
                        affirmative evidence. Jury can‟t speculate
                     b. specialization of P‟s expert
                            i. licensed member of school of medicine
                           ii. must show familiarity w/ methods, procedure,
                               treatments ordinarily observed in D‟s
                               community or one similar
                         iii. if P falls underneath this threshold can‟
                               sustain his allegations
              2. patient rule – dr MUST inform patient of all material risk
                  in terms of what the reasonable patient would want to know
                     a. requirements
                          i.   existence of material risk unknown to patient
                               (including dr. economic interest in procedure
                        ii.    failure to disclose the risk
                       iii.    CIF in informed consent – disclosure would
                               have lead reasonable patient to reject the
                        iv.    injury
              3. Informed consent – right to exercise control over her body
                            i. Dr. has duty to disclose

                              ii. may be liable for failing to inform the
                                  patient of what might happen if patient
                                  rejects the procedure (risk of not getting
                   4. liable even if not negligent
                   5. Professional rule – duty to disclose danger he has
                      knowledge and patient doesn‟t but should have to make
                      decision – Pauscher rejects this, dr shouldn‟t be in
                      charge of this decision
                   6. 2 Schools of Thought – if 2 reasonable schools of thought,
                      doctor won‟t be held liable for picking one over the other
                   7. Duty to search and find patients and warn them of risks or
                      problems from a procedure (Dalkon Shield)
           iv.   Carriers – duty of utmost care – responsible for even the
                 slightest negligent. Passengers at mercy of carrier and are
                 entitled to assume highest degree of care re their safety
      i. Expert testimony
            i. Std to determine if expert is needed – whether layperson can
               understand the work
                   1. not necessary when res ipsa loquitor
           ii. Daubert - court makes initial determination about expertise –
               battle of experts started
                   1. p must have written statement from doctor that D was
                      negligent and that he will testify
                   2. Old Rule – Frye Test - P and D each get an expert and the
                      jury worked it out. There was no need for them to be
                      necessarily qualified.

G. Relationship Btn Judge and Jury
      a. Usually, Judge states the standard and then gives it to the jury
            i.   Statute/regulation
           ii.   Standard of reasonable person
          iii.   Relevant custom
      b. Court can set standard if it is clear
            i.   Helling – glaucoma under 40 if symptoms
           ii.   This doesn‟t usually happen. Only if court is mad
      c. If judge decides, decision could be harsh in next case depending on
         the facts. (Goodman and Pokora)
            i.   Goodman – court laid down rule - must yield to train
           ii.   Pokora – should be for the jury, court set standard from
                 previous case can be too rigid and unrealistic and following it
                 lead to impossible results.

H. Violation of Statute
      a. Negligence per se – take statute and apply it to negligence case,
         statute gets ultimate weight in establishing that D was negligent
            i.   Court must direct a verdict as a matter of law, jury has no
           ii.   D can use defense of assumption of risk or contributory
          iii.   Contributory negligence per se
      b. Statute must apply to Facts. Need to look at…
            i.   Class of persons statute is for
           ii.   Hazard that statute is trying to prevent
          iii.   If class and hazard are met then per se rule applies and don‟t
                 need to talk about proximate cause bc that is what class/hazard
      c. Excuse of violation – greater risk of harm (Tedla)

             i.    If adhering to the statute puts one at a greater risk of harm
                   then per se doctrine will not apply
      d.   Other Interpretations of a Statute – once determined it applies
              i.   Rebuttable presumption – presumption of negligence that is
                   rebutted by an excuse
                     1. speed limit sign is down
             ii.   Evidence of negligence – use of statute violation as evidence
                   of negligence
                     1. Goes to the jury and weighs the violation with other
            iii.   Strict Liability – some statutes construed strictly. An
                   absolute duty
                     1. selling glue, guns to kids, pure foods act
                     2. much more severe than neg per se, permits no defense
      e.   Compliance – weight given to statute when there is compliance
      f.   Failure to have a license is not evidence of negligence.(Shyne). Need
           to show that D didn‟t exercise care and skill which would have been
           exercise by a qualified dr and that lack of skill/care caused the
           injury. Need CIF to go to the jury
              i.   If violation is proximate cause of P‟s injury then recovery. If
                   violation has no effect on injury, then it is irrelevant.
      g.   Criminal intervening cause (Rushnik)
              i.   Sometimes it will sever liability
      h.   Dram Shop Acts – doesn‟t extend to one who injuries themselves, only
           to the ones who are injured by drunk driver.

I. Proving the Negligence Case Before the Judge and The Jury
      a. Stop searching for the smoking gun
            i.   Most cases don‟t have direct(statement of witness), real(actual
      b. Circumstantial Evidence
            i.   Imputed knowledge
                   1. constructive notice – defect must be visible and apparent
                      and exist for a sufficient length of time prior to the
                      accident to permit D to discover and remedy it.
                         a. Negri, Anjou
                         b. No notice – Goddard, Gordon
                   2. mode of operation – look to particular mode of operation
                      and not events surrounding the accident (Chiara, Jasko
                      pizza spill)
                         a. don‟t need notice if reasonably anticipate the
                            hazardous condition
                         b. forseeability of a 3rd party
                         c. prove mode of operation, can get it to the jury and
                            should be able to infer negligence in maintenance.
                            Jury can make the inference or not.
                               i. Burden is on D to show evidence of care or
                                   assumption of risk
                   3. court may infer negligence re product design (Pietrone)
                         a. D‟s burden to justify design or provide reasonable
                            alternative design
                               i. Increases cost of trial bc need an expert.
                                   Encourages settlement

      c. Res Ipsa Loquitur– the thing speaks for    itself. The fact that the
         incident happened is evidence there was    negligence (Bryne – 1st case)
            i.   It is a permitted inference from    circumstances that gets it to
                 the jury
                   1. jury then either accepts or   rejects the inference

               a. if jury rejects inference then D wins
         2. Burden is on D to rebut one of the elements or that he
            used due care, if D doesn‟t introduce any evidence then he
            risks losing
 ii.   Elements
         1. d had exclusive control
         2. event doesn‟t ordinarily happen in the absence of
         3. some courts add P is not contributorily negligent (an add
            on bc it is required in all negligence)
iii.   Doesn‟t apply when injury can happen in the absence of
       negligence unless occurrence is more likely to result of
       negligence than some cause for which D isn‟t responsible.
         1. P should look at informed consent as cause of action.
         2. calculated risk – dr knew of risk of paralysis when using
         3. bad result – risk of death when using anesthetic (just cuz
            someone dies doesn‟t mean there is negligence)
         4. if allowed, burden to big on dr and wouldn‟t try new stuff
            even if used due care
 iv.   Applies to
         1. classic case – sponge left in the body
         2. bottling cases - P has burden to show it was handled
            w/care after it was in their possession (Excola)
         3. airline accident (Cox) – the fact that it crashed means
            that someone was negligent even if don‟t know exactly when
            negligence occurred.
               a. exception (Campbell) - Didn‟t allow jury to
                  speculate on whether it was the pilot‟s
                  inexperience, the leesor of the plane or the
                  mountains that caused the accident.
  v.   Multiple Ds doesn‟t preclude RIL
         1. shared control - this is rare (Ybarra) – RIL will be
            applied against numerous med D that had some control over
            P‟s body when he was injured in an operation
               a. burden is still on D. Can‟t expect P to explain if
               b. good – otherwise P couldn‟t recover if unconscious
                  and in the care of the dr.
               c. problem – one of the D‟s could be completely
               d. Has been applied to bottlers, contractors,
                  manufacturers of explosives, but not so much to med
         2. Akin to RIL (don‟t see this often) – radical situation
            when negligence isn‟t the only or most probable theory,
            but where alternate theories of liability accounted for
            the only possible causes of liability
               a. Court says that one of the Ds was negligent and
                  tells jury they „must‟ find one of the Ds liable
                     i. B4 told jury that they „may‟ infer negligence
               b. burden on D to prove innocence
               c. encourages settlement
               d. problem – forces liability on those who might be
                  free of blame
 vi.   RIL applies against driver in suit brought by passenger when
       car leaves the road and crashes into a tree.
vii.   Doesn‟t apply to other driver when 2 cars crash into each other
       bc jury would guess as to negligence

           viii.   In collision btn bus and car, bus passenger can argue RIL bc
                   driver is held to the highest std of care and it is likely that
                   driver violated std of care
             ix.   Hotel – duty of care to protect public against foreseeable risk
                   of danger (Connolly)
                     1. for jury to determine if hotel took reasonable precautions
                        to eliminate conditions they should have been aware of. If
                        so negligence.
                     2. doesn‟t apply to spontaneous things
V. Cause in Fact
         A. Def – Did D‟s act have something to do w/ P‟ injury as a matter of
            a. In tough cases it is a matter of policy, not science (Hymowitz,
               Summers, dirty stream, 3 cars negligently collide)
                  i. As a matter of policy need to come up w/ a way for Ps to
                     recover bc so tragic
            b. Necessary but not sufficient by itself to prove liability
            c. Tests
                  i. „But for‟ – whether injury would have happened but for D‟s
                        1. in some cases, P won‟t win under this test, but will
                            under substantial factor test. (dirty stream problem,
                            p. 276)
                        2. summers – P would lose under but for
                 ii. „Substantial factor‟ – broader than „but for‟. Whether D‟s
                     conduct was substantial factor in the injury
                        1. popular test, esp. in products cases
                        2. Reynolds – precursor to test – liability can be found
                            even if there were several causes
                               a. Where chance of negligence increases chance of
                                  accident if leads to its occurrence, mere
                                  possibility that it might happen w/out negligence
                                  isn‟t sufficient to break the chain of cause and
            d. Always more than 1 CIF but only one goes to the jury (Grimstad)
            e. CIF must be shown as a probability, a mere possibility is not
            f. For the jury
            g. Re media/music – no CIF, bc multiple interpretation, free speech

         B. Concurrent Causes
            a. 2 events concur to cause harm and either one would have been
               sufficient to cause substantially the same harm w/out the other.
                  i. Each is a cause of the injury as each would have brought the
                     harm on its own.
            b. If jury finds D‟s act was a material or substantial factor in cause
               damage then D is liable, even if there is another factor involved.
                  i. Anderson – joinder of fire case
            c. Substantial factor test used
            d. Damages
                  i. Joint and several – p can recover whole amount from one or
                     the other or from both
                        1. several liability – bring suit against 2 and each is
                           liable for amount of injury they caused by you
                        2. joint liability – if injury is indivisible, then joint
                           tortfeasors so P can recover whole amount from either
                              a. joint implies several

                 ii. ie, if P sues A and A can bring in B based on contribution.
                     Contribution state by state but court would finer either
                     50/50, based on fault or no contribution by B
         C. Failure to ID the Specific Actor
            a. Alternative liability - If 2 Ds and can‟t figure out who pulled the
               trigger, both are liable and burden is on each to absolve oneself.
               (Summers – here CIF was matter of policy)
            b. Market Share Concept (Hymowitz) – liability is based on how much of
               the product D sold in the total market
                  i. Need substantial number of Ds to go forward
                        1. in Sindell, 51% of manufacturers in the state
                        2. in hymowitz, looked at national market
                              a. liability is based on overall risk, not just that
                                 particular situation
                 ii. This means that P will not recover 100%. It depends on the
                     market share. If only 1/3 of market, then no recovery
                        1. under joint and several liability, P could get 100%,
                           but if allowed that then no market share theory
                iii. Someone can be held liable even if didn‟t CIF the injury
                 iv. Policy – manufacturers better able to bear cost of injury bc
                     then can discover and guard against defects, this will make
                     manufacturers more careful.
                  v. Theory – over time, manufacturer will be brought to court
            c. Concert of Action Theory
                  i. D‟s worked together to cause the negligence
         D. Difficulties in Proof of Causation
            a. More probable than not standard – need chance of 50% or more and
               can recover 100% (kind of like substantial factor)
            b. Lost chance of survival – a more relaxed standard, can recover even
               if less than 50% chance. Loss of an opportunity for a more
               favorable result is compensable (Falcon)
                  i. Need not show certainty of survival
                 ii. not all courts accept this
                iii. Damages – recover whatever the percentage time damages
                     recoverable for wrongful death
            c. If there is a spike in the amount of injuries in a specific group
               of people that is higher than the general population, then
               causation is more likely
            d. Experts – battle of the experts to prove CIF
                  i. Problem – law is ahead of science. Usually not studies about
                     issues that are in the courts
                 ii. Need to look to see if there is a spike in the amount of
                     injury re class at issue. If not, then very hard to prove CIF
                iii. Daubert – fed decision so states not bound to follow though
                     many do.
                        1. judge is the gatekeeper of experts. Before it was for
                           the jury to figure out

VI. Proximate Cause – a matter of social policy
      A. Basic Theories
         a. there is no rule
               i. Does liability extend to this specific P for this particular
              ii. Assumes that D‟s conduct was CIF of P‟s injury
             iii. Either for the court or the jury
              iv. Controls the jury
               v. Already have determined negligence and CIF b4 proximate cause
         b. Directness (Polemis)

          i. Was damage a direct result of the negligence? if so liable for
             all damages whether or not you foresaw that particular damage
         ii. Don‟t need to foresee that particular damage, just some damage
        iii. Thin skull rule applies to people – D must take P as he finds
             him and thus will be liable in damages for the aggravation of a
             preexisting illness from D‟s negligence
         iv. Leon Green – term of art, defined by the circumstances of a
             particular case
  c.   Remoteness First Building rule – (Ryan) only liable for first building
       damage in a fire, not the rest. Those are too remote
  d.   Reasonable foreseeability (Wagon Mound #1) – if damage is foreseeable,
       then negligent
          i. No such thing as negligence in the air – no negligence if no
                1. Vandall thinks this exists – car going 100mph, no accident
                   but it is negligent
  e.   Foreseeable small risk (Wagon Mound #2) – if you have a small risk
       that is foreseen, then liability will flow
          i. Expansion of foreseeability bc looking at little risk
         ii. Similar to Polemis‟ directness
        iii. Kinsman – lable fore particular class of Ps if it is foreseen
                1. small risks are enough for liability
  f.   Palsgraf – foreseeable P – specific P must be specifically foreseen.
       If P is foreseeable then liability is established by directness but it
       can‟t exceed the scope established by the foreseeable P
          i. foreseeability establishes duty
                1. for the jury
         ii. First case to stress duty
        iii. Direct result to an unforeseeable action – no recovery
         iv. If the result is foreseeable, the manner of the result need not
             be foreseeable
          v. Practical Politics - Andrews dissent – proximate cause is
             practical politics
                1. duty to whole world
                2. kind of like polemis
                3. was the act unreasonable

B. Intervening Causes
   a. Liable if you create an undue or unreasonable risk of harm
   b. Foreseeable result but unforeseeable intervening cause shouldn‟t cut
      off liability
   c. Superseding cause
         i. If it foreseeable, then it doesn‟t sever liability
        ii. If it isn‟t foreseeable, it does sever liability
       iii. Alcohol
               1. Kelly v. Gwinell - Social host liable for damage cause by
                  drunk driver (not really followed)
               2. Dram Shop Acts – commercial venders can be held liable
               3. it is about tracing the alcohol
               4. need to exercise reasonable care
        iv. suicide is a superseding cause
               1. exception (Fuller)
   d. Rescue – once someone begins a rescue and is injured recovery is
         i. Must be reasonable
        ii. Scope is broad to encourage rescues
   e. Negligent driver is liable for subsequent negligent acts as long as it
      is not extraordinary and not wholly unexpected
         i. Exception – operates on the wrong patient – too extraordinary

      C. Economic Loss
         a. General Rule – cannot recovery economic damages if no physical damages
         b. People Express – an exception
               i. D owes duty of care to take reasonable measures to avoid the
                  risk of causing economic damages aside from physical harm, to
                  particular Ps that D knows or has reason to know are likely to
                  suffer damages from its conduct
                     1. p needs to be foreseeable w/particularity – specific
                     2. economic loss – a subset of proximate cause

      D. Duty v. Proximate Cause (Green)
         a. Green – eliminate proximate Cause and look at duty factors
               i. Duty Factors
                     1. precedent
                     2. prevention
                     3. economics
                     4. justice
                     5. judicial administrative factors
                     6. loss shifting – Ds ability to carry the loss
              ii. foreseeability – would reasonable person in the same situation
                  have anticipated injury to the P or someone so situated.
             iii. Looks at facts of each case
              iv. Questions to determine duty?
                     1. is there evidence of CIF
                           a. if not, case ends
                     2. if CIF is there evidence of negligence?
                           a. if no case is over
                     3. if yes, does D‟s duty extend to this particular P for this
                        particular injury?
                           a. Only get to duty after you answer yes to CIF and

VII. Strict Liability
  A. Social policy drives SL, should D be liable even though P cannot show
      a. History – foundation of tort law (Heaven v. Pender)
      b. Modern view – rests on negligence

 B.   Three Approaches to SL
       a. 4 Factor Test (Rylands)
          i.   Substance brought on the land that is dangerous if it escapes
         ii.   Substance escapes
        iii.   Damages
         iv.   Substance must be non-natural
       b. Restatement 520
          i.   High degree of risk of harm
         ii.   Likelihood that harm will be great
        iii.   Inability to eliminate risk by exercising reasonable care
         iv.   Common usage - Extent to which activity is not a matter of common
               usage (vandall doesn‟t like this, likes non-natural usage bc it is
               more policy oriented as opposed to just seeing if lots of people do
               it. Lots of people do illegal things so that doesn‟t make sense)
                 i. car crashes are common usage so SL doesn‟t apply (Hammontree,
          v.   Locality – inappropriateness of activity to place
         vi.   Community value – extent to which this outweighs dangerous

      c. Spano - SL applies to blasting in an urban area whether damage results
         from concussion or entry of material
         i.   Overrules rule that if only concussion then no recovery under SL,
              had to prove negligence

 C.   Factors to determine naturalness (turner)
       a. Character of the activity
       b. Place and manner
       c. Relationship of act to surroundings
               i.   Different result if drilling in atl than in the country
              ii.   In Turner, even though non-natural may not be liable if it is
                    essential to the survival of the industry
                       a. Exception to Rylands

 D.   Hazardous or abnormally dangerous activity – those engaging in hazardous
      activities which are socially desirable it is now reasonable they pay their
      own way (Cities Services)
        a. Dynamite is element that one stores at their own peril and is
           absolutely liable (Exner)

 E.   Defenses to SL
       a. Assumption of risk
       b. Proximate cause
       c. Act of god
       d. Contributory negligence – is rejected

 F.   Animals
         a. Wild animals – possessor is subject to SL except to trespassers
         b. Domestic animals – possess which has reason to know of his dangerous
            propensities is subject to SL for harm cause

 G.   Guns (richman)
           a. 520 has to do with land, not products
           b. Criminal intervening cause severs liability of gun manufacturers
           c. Gun manufacturers usually win. Could win under product defect if
              there really was one. But if shooting someone, that doesn‟t work
                 i. Too remote – Hamilton v. berretta

 H.   Absolute v. strict
           a. Absolute liability – all you need to show is causation and that is
              the only defense
           b. Strict – there are more defenses

VII. Defenses
   A. Contributory Negligence – if P is even a scintilla at fault, then no
         a. Only 3 states still use this
   B. Last Clear Chance Rule
         a. Even if P is contributorily negligent, can still recover if D had last
            opportunity to prevent harm and didn‟t use reasonable care to do so
         b. this is P‟s rebuttal to D‟s defense of contributory negligence
         c. CA abolished this rule when adopted comparative negligence bc it
            really is just a subset of comparative fault and if had both, P could
            get a windfall if D‟s fault happened last.
         d. Davies v. Mann – fettered ass case
               i. Even if P‟s act was illegal, proximate cause is attributable to
                  D‟s want of proper care and D is liable
         e. Safety belt Issue – 6 approaches

           i. Vandall likes – don‟t permit recovery for those damages which
              would not have occurred if P had seat belt on
          ii. Safety kleen – no seat belt is evidence of comparative
              negligence, but jury must calculate a single percentage
                 1. in determining percentage consider
                       a. negligence in driving the car
                       b. negligence in failing to use the seat belt
         iii. Negligence per se – P is precluded, bc it is against the law to
              wear seat belt
          iv. Contributory negligence if not wearing
           v. Failure to wear seat belt is evidence of negligence, but recover
              can be reduced to maximum of 5%
          vi. Not evidence of negligence and doesn‟t reduce damages

C. Comparative Fault – distribute responsibility in proportion to fault
     a. Pure – P recovers in proportion to fault even if it is more than Ds
     b. Modified – P recovers as long as fault is less than Ds
D. Assumption of Risk
     a. Elements
           i. Actual or constructive knowledge of the risk
          ii. Appreciated the character of the risk
                   1. this is subjective and some courts don‟t look at this
         iii. Voluntarily accepted the risk, w/ the time, knowledge and
               experience to make an intelligent choice
     b. Goepfert – jumped from moving car and assumed the risk
     c. One can assume the risk of one activity but not an additional
        unforeseeable or negligent act
           i. Ray v. Downes – don‟t assume the risk of someone acting
     d. Signing of a release before treatment at hospital that you assume the
        risk of treatment is a violation of public policy
     e. Implied Assumption of Risk – Blackburn v. Dorta
           i. Primary – jostling on a crowded train, lent car w/bald tires to
               someone who knew
          ii. Secondary implied
                   1. unreasonable qualified – merged w/ contributory negligence
                      – man rescues hat from fire, he can‟t recover
     f. Sports - liability may be imposed on sport participant when she
        intentionally injuries another or reckless conduct that is totally
        outside the ordinary course of the sport. Absent intent, then no duty.
           i. Careless conduct of others is treated as inherent risk of the
               sport thus barring recovery by the injured participant
     g. AR when basis of liability is SL
             i. Marshall v. Ranne – P didn‟t assume the risk bc no choice, hog
                 came onto P‟s property

E. Statue of limitations and Repose
     b. Discovery Rule – state begins to accrue time of SoL at the date you
        discover the injury (and its nature and cause), not when the injury
        was sustained.
           i. Avoids the harsh result that innocent P must suffer bc of SoL
          ii. Applies to SL and negligence
     c. Statute of Repose
F. Statute of Repose – limits the discovery rule
     a. Causes cause of action to die before it is even born
     b. Ie, 10 year state of repose and a 2 year SoL
           i. If injury discovered in the 9th year, you must file by the 10th
              year otherwise no case
          ii. If injury discovered in the 11th year, then no cause of action

         c. Policy – these suits have negative impact on doctors and makes it hard
            for insurance providers to come up with rates if allowed to sue
         d. Not all jurisdictions have this
         e. RI struck down re products liability bc violated access to courts
            provision of constitution
               i. Special class legislation – enacted to benefit one class [WHAT
                  DOES THIS MEAN?]

VIII. Owners and Occupiers
      A. This is about duty D owes to P for non natural things
               a. Trespasser – no duty of care to trespasser
                     i. There is a duty of care to a discovered trespasser.
               b. Licensee - on the land w/ owner‟s consent but for licensee‟s own
                     i. Ie, social guest.
                    ii. Duty to warn of known dangers, but not unknown dangers
               c. Invitee
                   i.    Public invitation – public library
                  ii.    Biz visitor – for economic benefit to the land owner –
                         shopping at Publix
                 iii.    Duty of reasonable care including inspection and repair
                  iv.    No duty for an obvious danger
                                  a. Ice of the sidewalk
                                        i. If stays open, then duty of care to take
                                            care of it. It is foreseeable that
                                            customers will use the sidewalk even
                                            there is ice on the sidewalk
               d. Trespassing child
                 i. Turntable doctrine – kids are invitees, bc owner knows they
                      hang out there
                     i. Invitee, to licensee to trespasser issue
               e. Lessor/lesee – when landlord turns property over to tenant, he
                  give up duty, but must be tempered w/ habitability
               f. Trees – duty to cut down and trim urban tress but not rural

      B. Jurisdiction Approaches
               a. California abolished these categories
                     i. Roland v. Christian – P was guest of a tenant, threw out
                        categories and said that there is a duty of reasonable
                        care to ALL people on the property.
               b. Many jurisdictions have followed.
               c. Some have limited the abolishment by holding that nevertheless
                  there is no duty of care to a trespasser.
                     i. What is reasonable depends on the circumstances?

IX. Joint and Several Liability
      A. Joint liability
               a. 2 or more persons are held jointly liable if
                     i. They acted in concerted – get together and plan to do
               b. Single Indivisible Result
               c. Joint and Several liability - P can recover the whole amount
                  from either one of the Ds or both
                     i. If recovers from only 1 D, D can sue other D for
               d. Doesn‟t apply to divisible harms

      B. Pure Several liability – p can recover from each D in proportion to their
               a. Liberalizes the joint liability rule, bc before large corps
                  would fit the bill bc they had more money even if they were only
                  2% liable and the other party was 80%liable

X. Wrongful Death and Survival Statutes
      A. Wrongful Death – not a cause of action, it continues the cause of action
         that would have died but for the statutes
         a. Old rule – if P or D dies, the action ends, so cheaper to kill
            someone, then not, bc wouldn‟t be liable
         b. Wrongful Death Act – creates a new cause of action for certain
               i. Spouse, child, parent, (executor/administrator - usually bring
                  suit and gives damages to applicable family members)
                     1. step child and live in lovers don‟t count – courts
                        construe the statute strictly
              ii. Recovery - Compensates for loss of economic benefit they would
                  have received from decedent had she lived
                     1. pecuniary benefits only, which is pretty broad –
                        intercourse, companionship, grief, etc.
                     2. No recovery for pain and suffering of decedent
             iii. D‟s defenses are the same
              iv. Death of Child
                     1. old cases – no recovery when child dies
                     2. new cases – recover for child‟s contribution to the family
      B. Survival Statutes – adopted to preserve the action at death (except for
         a. Damages awarded to the estate
         b. Recovery – only losses prior to death
               i. pain and suffering up until Ps death, which you can‟t get in
                  wrongful death
              ii. medical expenses
             iii. lost profits prior to death

      C. if both survival and wrongful death in a jurisdiction, pain and suffering
         and loss of earning are under survival action timeline and loss of
         earning after the death are allocated in the wrongful death action

XI. Damages in Negligence
      A. Economic Loss
      B. Physical pain
      C. Mental distress
      D. NO nominal damages, bc must show physical damage to win on negligence
      E. Punitive Damages
         a. BMW v. Gore – sold repainted bmw to gore and lied about it and Gore
            got $2mill punitives, court reduced the award
               i. 3 part test for excessiveness of punitive damage award
                     1. degree of reprehensibility of D‟s conduct – punitives may
                         not be grossly out of proportion to the offense
                     2. ratio of punitive to compensatory damages
                            a. 2-4x compensatory is okay, up to 9x
                     3. Sanction of comparable misconduct
                     4. look to civil and criminal fines

             ii. Effect – attorneys less likely to take the case, bc award is
                 going to be less

         b. Vandall – punitives are needed to punish corps
      F. Types of Punitive Damage Reform
         a. Cap on award
         b. Give damage award to the state not the P
               i. In GA, 75 % of punitives go to the state
         c. Bifurcate the decision about injury and damages


 Remittur – P gets a large verdict. D thinks that is to much and orders a new
   trial. Judge can remit (reduce) judgment. P can appeal that if he wants. Judge
   could grant new trial or see if D wants to accept Judge‟s remmittur.
 Additur – P gets a small verdict and moves for a new trial. Judge agrees and
   increases the verdict and denies the new trial.
               i. Isn‟t the law. Depends on the jurisdiction if judge can change
                  the verdict like this.
 Condemnation – when gov‟t takes your property
 Inverse condemnation – airport ex. Gov‟t taking of land without formal
   condemnation proceedings so gov‟t need to pay value of property.
          This rests on the constitution, not on trespass.
 Subrogation - Insurer pays owner of the house. Then attorney brings suit for
   insurance company. Insurance co steps in to shoes of injured party and gets
   rights of injured party, all defenses available. Insured gets what is left over
               i. Tobacco litigation - all tobacco actions lost. tobacco hasn‟t
                  paid a penny on defense of assumption of risk or stupidity
              ii. When state sues tobacco, it isn‟t subrogation. State is not
                  standing in the smokers shoes. Damage to state. Money that have
                  to pay out for indigent cancer patients.
             iii. Key to largest settlement $206 billion – understanding
                  subrogation and this wasn‟t subrogation suit.
              iv. Is it immoral for attorney to collect fee of $10bill? Maybe not
                  here, bc such a huge advance in medicine.


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