TORTS
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)
II. INTENTIONAL TORTS
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
this
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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
foreseeable
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
malicious
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
condition.
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
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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
contact.
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
leave)
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
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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
sensitive
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
property
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
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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
control
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
control
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
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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
negligence
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
setting
2. Role of football in American society is addressed here.
Highly visible sport so need to be aware of its effect on
viewers
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.
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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
damage
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
compensation
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
necessity
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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
transaction
viii. Availability, cost and prevalence of insurance for risk
involved
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
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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
another
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
child
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)
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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
(Potter).
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,
miscarriage)
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
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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
bodies.
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
help
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.
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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
negligence
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
unreasonable
i. B
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
care
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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
negligence
ii. Ordinary negligence – failure to exercise ordinary or reasonable
care
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
clause
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
(Pauscher)
a. requirements
i. existence of material risk unknown to patient
(including dr. economic interest in procedure
(Moore)
ii. failure to disclose the risk
iii. CIF in informed consent – disclosure would
have lead reasonable patient to reject the
procuedure
iv. injury
3. Informed consent – right to exercise control over her body
i. Dr. has duty to disclose
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ii. may be liable for failing to inform the
patient of what might happen if patient
rejects the procedure (risk of not getting
pap)
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
(Widmyer)
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
power
ii. D can use defense of assumption of risk or contributory
negligence
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
is
c. Excuse of violation – greater risk of harm (Tedla)
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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
evidence
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
knife)
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
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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
negligence
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
surgical
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
unconscious.
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
innocent
d. Has been applied to bottlers, contractors,
manufacturers of explosives, but not so much to med
profession
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
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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
science?
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
conduct
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
effect.
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
sufficient
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
D.
a. joint implies several
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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
injury?
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)
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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
damages
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
allowed
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
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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
foreseeability
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
negligence
VII. Strict Liability
A. Social policy drives SL, should D be liable even though P cannot show
negligence?
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,
1971)
v. Locality – inappropriateness of activity to place
vi. Community value – extent to which this outweighs dangerous
attributes
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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
recovery
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
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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
negligently
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
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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
whenever
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
purposes.
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
trees
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
something
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
contribution
d. Doesn‟t apply to divisible harms
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B. Pure Several liability – p can recover from each D in proportion to their
fault
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
beneficiaries
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
life
B. Survival Statutes – adopted to preserve the action at death (except for
defamation)
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
FILL THIS IN a LITTLE MORE
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
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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
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Terms
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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