Torts I - Bauman by avidwan


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									                                  Bauman Torts I Fall 2004

I.   Intentional torts: FITTED CAB
     a. Why are most cases brought? Liability insurance
     b. To establish prima facie case for intentional tort liability - prove 3 elements:
                i. Act by D
               ii. Intent and
              iii. Causation
     c. Intent:
                i. Act with the purpose of causing contact
               ii. Knowledge substantially certain to occur -Garrett v. Daily
          1.) false imprisonment
                   a. intent to confine someone against their will and the other is conscious or
                         harmed by it. Elements:
                                i. Intent to confine п, п in fact completely confined
                               ii. Action
                              iii. Causation- P is aware of the confinement or suffers actual injury
                                   from the confinement
                   b. confinement - direct restraint of P or his physical liberty w/o adequate legal
                   c. Problem: were they confined? That is the issue…
                   d. Teich Miller- you must ASK to leave. Can‘t assume, but ask or else there is
                         no FI.
                   e. П has burden of proving the Δ confined her
          2.) trespass to land
                   a. intent to enter land owned by someone else or cause a third person or thing
                         to enter the land and fails to remove it
                   b. actual damages are not necessary because enforces boundary
                         policies…theory is so that ppl aren‘t intruding into other land
                   c. Amphitheater: smoke isn‘t a trespass to land because it‘s not a tangible
                         invasion. Ownership is from anything below or above it
                   d. Traditional view: an actor commits trespass to land when he intentionally
                         enters or causes an entry onto the land of another.
                                i. Entry can be made above or below through the surface of the land
                               ii. Ex. shooting a gun over your land to duck hunt
                              iii. Actual harm to the land is not required
                                        1. vindicates owners exclusive possession- that‘s what
                                             trespass is supposed to protect: there is injury in right of
                                             exclusive possession when ppl come onto your land
                   e. Modern New rule: intangible forces can be evasive but must violate legally
                         interest of the п. More than a ray of light.
                                i. Trespass interferes with the owner‘s right to exclusive possession
                               ii. Trespass can occur by means of a physical invasion of microscopic
                                   particles if the result is in interference with the right of exclusive
                              iii. When invasion involves microscopic particles, the п must show
                                   actual damage to the property.
                   f. Bradley: intent isn‘t hostile intent; it is enough to bring about a result:
                         bringing foot over property line. A good nature practical joke can be
                         trespass. Enter to land can be indirect or direct, damages must be actual and
                   g. Can‘t use ―mistake/good faith‖ as a defense to trespass
          3.) trespass to chattels
                   a. intentional act
                   b. Prima facie case:

                   i. Δ interferes with п right of possession
                  ii. Intent to perform the act- mistake is no defense, but intending to do
                      the act of interference is sufficient
                 iii. Causation, and
                 iv. Damages
       c. using or intermeddling with another person‘s chattel
                   i. dispossess (I don‘t have it anymore) the other of his chattel
                  ii. chattel is impaired
                 iii. possessor is deprive of use of substantial time
                 iv. bodily harm is thereby caused to a person in which S has a legally
                      protected interest
       d. CompuServe: intermeddling: intentional bring physical contact with the
            chattel; п can get cause of action without showing substantial interference
            with its right to possession of that chattel.
       e. Taking away of or damage to tangible personal property
       f. Usually used when the interference or damage is not serious enough to
            amount to conversion
       g. Actual damage to or loss of use chattel required
       h. Damages: value of loss of use or cost of damages to the chattel
4.) emotional distress
       a. extreme and outrageous conduct,
                   i. Intent: Conduct must be intentional to cause severe emotional
                      harm: intentional or reckless.
                  ii. causation
                 iii. damages- severe emotional distress
       b. Intentionally causes severe emotional distress or with recklessness
            regarding the infliction of such distress and severe emotional distress
       c. causal connection btw wrongful conduct and emotional distress
       d. Transferred intent doesn‘t work here: Caldor v. Bowen- severity is
            measured by intensity and duration. Need more than cursing or insult. Court
            will be harder if you take advantage of someone‘s vulnerability
       e. Nickel: you just have to have severe emotional distress- court wont take it
            easy if it‘s the boss
       f. Damages - how to prove severe emotional distress? Physical symptoms -
            something not seen before: Relationship. Missing work, inability to sleep,
            weight fluctuation. etc. severe enough to make client see Dr. (may note
            symptoms non—pro missed/ if not. D might say P didn‘t care enough to see
            Dr.. or ran up damages by failing to see Dr. One shot at getting
       g. The ―mere insult‖ is NOT outrageous conduct
5.) Conversion
       a. Conversion is where you borrow and steal- wrongful exercise of dominion
            over the personal property of another (taking, substantial use, altering,
            destroying, selling and buying)…must be tangible
       b. Prima facie case:
                   i. Δ interfering with п right of possession in the chattel that is serious
                      enough in nature or consequence to warrant that the Δ pay full
                      value of chattel
                  ii. Intent to perform the act bringing about the interference with п
                      right of possession
                 iii. Causation
       c. Damages: Δ must pay п the full value of the property at the time of
       d. Wiseman- tow truck case- conversion: is where you borrow and steal-
            exercise the dominion- you don‘t have to intent to own it.

         e.   What act constitutes so serious to make actor pay full value? P.56
                     i. Wrongful acquisition (theft)
                    ii. Wrongful transfer (misdelivering)
                   iii. Wrongful detention (refusing to return to owner)
                   iv. Substantially changing
                    v. Severely damaging or destroying
                   vi. Misusing the chattel
         f.   How to satisfy the element of conversion:
                     i. Took something that belonged to someone else. What act
                        constituted the conversion? Towing the truck (Wiseman v.
                        Schaffer- stolen truck, towed)
                    ii. This act of dominion of truck leads to loss of truck.
                   iii. Δ isn‘t excused- he intentionally meddled with the truck- real
                        owner didn‘t give him permission to do so.
         g.   Multiple factor test: different from notion of elements of a cause of action-
              in order to have COA for battery, must have….etc…but for multiple factor
              test- no one factor by itself absolutely has to be there. Look at all the
              factors: what court thinks are most significant factors and how do they
              operate in the situation?
6.) Assault
         a. Elements of assault:
                  i. An actor commits assault if he acts intending
                           1. to cause a harmful or offensive contact OR
                           2. to cause imminent apprehension of such contact AND
                           3. the actor has the apparent present ability to inflict the
                                contact AND
                           4. apprehension of harmful or offensive contact actually
         b. Use the reasonable person test:
                  i. Apprehension of immediate offensive touching
                 ii. No way to have actual damages because you are just afraid- must
                      be aware of Δ acts
         c. Holloway: actual damages not necessary and transferred intent is
            appropriate in assault
         d. Words only are not enough- must be coupled with acts
         e. Must be a reasonable apprehension
7.) battery
         a. Elements
                  i. Intent
                 ii. Contact
                iii. Harmful or offensive
         b. An actor commits a battery if he acts intending
                  i. To cause a harmful or offensive contact OR
                 ii. To cause imminent apprehension of such contact AN D
                iii. Harmful and offensive contact actually results
         c. In order to recover, you must have damages→tortfeasor is liable for all
            damages resulting from harmful contact.
         d. INTENT
                  i. Garrett v. Daily- substantially certain that a 6 year old will hurt this
                      woman? S have purpose of producing the circumstances. Mental
                      retardation can be liable for intentional torts.
                 ii. Shaw- smoking case: 2nd hand smoke is not a battery
                iii. Transferred intent (TI)- A meant to hit B but hit C. A still liable for
                      C damages

                              i. Can be intimately connected to body- vicarious liability: Fisher v.
                                  Carrousell (plate)
                             ii. Compensatory damages- I lost my lunch because you knocked trey
                                  out of my hand
                            iii. Punitive damages- punishment: you were a jerk so we are going to
                                  teach you a lesson. Only when we have wanton, malicious
                                  behavior (egregious)
                             v. Objective standard: reasonable person
                            vi. Passing by in a narrow space and gently touching them is not a
II.   Defense to intentional torts:
      a. Consent: nonverbal consent counts
                i. An objective manifestation of consent forcloses a claim that might otherwise
               ii. Consent may be shown by conduct ex vaccination
              iii. Consent bars recovery if there is consent to the act done, even though there is no
                   consent to the resulting injury
              iv. The consent obtained by fraud or concealment of important info is not effective
               v. Peterson: п must have sufficient mental capacity to consent- minor, drunkards,
                   incapacity can‘t consent to intentional tort. Patients must sign consent forms
                   with doctors.
              vi. Hackvard v. Cincinnati: court can‘t rule out certain conduct just because f-ball is
                   a violent game.
             vii. Determine if P had capacity to consent (intoxicated, mentally incompetent.
                   children, class protected by law incapable of consent to tortuous conduct:
                   majority no person can consent to criminal act, modern trend cannot consent to
                   breach of peace, but can to other, tight v. prostitution)
            viii. Expressed- words used negated by fraud
              ix. Implied- playing football
               x. Consent to contact in sports:
                        1. by participating in a sporting contest, one consents to the contacts
                             normally a part of the game
                        2. the limits of this consent are important: does every contact that is
                             outside the rules result in battery?
                        3. on the other hand, is consent to ―normal‖ illegal contact also presumed?
              xi. Consent to a criminal act
                        1. is effective and bars recovery for injuries received from the act:
                                  a. the important exception is where the criminal statute is
                                       designed to protect the class of persons to which the п belongs
                                  b. allowing consent as a defense would tend to frustrate the
                                       purpose of the criminal statute
                                  c. three important examples:
                                             i. statutory rape- if 14 consents to sex with 25, it‘s still
                                                a crime even though she consents- bars her from
                                                bringing civil action for battery
                                            ii. illegal prize fighting
                                           iii. voluntary euthanasia
      b. Self-defense:
                i. Use reasonable force against someone else
               ii. if you reasonably believe that you are under attack
              iii. Roberts: ct will consider if he‘s an aggressor
              iv. Self-defense is based on the reasonable appearance of need for defense
               v. Excessive force results in the loss of the privilege
      c. Defense of others
                i. If you have others, you have both defense… talk about both

                ii. majority rule/ officious intermeddler may use reasonably necessary force to
                    defend another only when the other could have used force to protect himself- no
                    defense if mistaken. Modern trend - allows force when actor reasonably believes
                    the aided person had right to self -defense.
       d. Defense of property
                 i. Katco v. Browning: booby trap- can‘t use deadly force to repel the threat to land
                ii. Cannot do by mechanical means if you cant do it by person
               iii. Doctrine: recapturing chattel (hot pursuit)→ a Δ can peaceably enter another‘s
                    property to take back his chattel
               iv. Shopkeeper‘s privilege: reasonable person standard. Can detain for a reasonable
                    time to investigate for a suspicion of a wrongdoing. Merchant‘s privilege to
                    detain individuals for reasonable investigation they reasonably believe to have
                    taken chattel unlawfully/shoplifted goods. Policy: privilege is necessary for the
                    protection of a shopkeeper against the dilemma in which he would otherwise
                    find himself in when lie reasonably believes that a shoplifter has taken his
                v. 3 elements:
                         1. timing (happening right now)
                         2. reasonable belief
                         3. boundaries of defense privileges
               vi. Reasonable mistake is allowed as to property owner‘s right to use force in
                    defense of property
       e. Necessity:
                 i. Public- absolute privilege: usually involved pro-government. Act for the public
                    good. If interference w/land or chattels of another is necessary to prevent
                    disaster to community, no compensation to be paid by person doing damage.
                    (ex. shoot rabid dog; Mayor orders house torn down for fire break)
                ii. Private- qualified privilege: Δ still has to pay for damages to the land. Doesn‘t
                    matter if Δ is cautious or prudent. Act solely to benefit any person or protect any
                    property from destruction or serious injury. Owner of property may not resist
                    exercise of privilege of private necessity. (ex. tie boat to dock in storm)
III.   Negligence
        fault based
        Once you move from substantial certainty to extremely high risk that something will
           occur…you are moving towards negligence (reckless conduct, gross negligence)
        Risk that something will occur that isn‘t extreme but its serious enough that it‘s regarded
           as unreasonable risk of conduct/harm. It‘s the realm of negligence law.
        Individuals conduct is creating risk but the risks are ones that are considered in society as
           ―reasonable risks‖
                o ex: driving automobile- for the most part it‘s reasonable if you are obey the rules
                    but there are risks (like a child stepping in front of your car). It‘s a risk but not
                    an unreasonable risk.
       a. 4 elements:
                 i. duty of care
                ii. breach of duty
               iii. Causation: cause in fact, proximate cause
               iv. Harm/damages results
       b. The Duty of Due Care:
                         1. Tort duties arise out of a relationship between Π and Δ that imposes on
                              the latter a duty of due care
                         2. This duty requires Δ to recognize and avoid unreasonable risks of harm
                              to Π
                         3. The risks in question are those that a reasonably prudent person (RPP)
                              would recognize as unreasonable.
                         4. Once recognized, Δ must exercise the care that the RPP would exercise
                              to eliminate or reduce the risk.

c.   Breach of duty
          i. The Standard of Care:
                  1. Δ is held to the standard of the reasonably prudent person under all the
                  2. The amount of care that Δ is expected to exercise varies depending on
                     the circumstances
                  3. Applying the reasonable person standard
                          a. The general duty is to act as a reasonable person. Jury is asked
                               to make an objective, rather than subjective, determination.
                          b. 3 parts to the jury‘s finding of ―negligence‖:
                                     i. Does the duty exist at all?
                                    ii. the existence of duty and focuses on how the judge
                                         describes the duty to the jury
                                   iii. Once the jury is told what the duty is, the jury must
                                         apply the law to the facts to determine whether the Δ
                                         has breached that duty.
         ii. ―Under all the Circumstances‖
                  1. Some circumstances are external to the Actor:
                          a. The extend to which the risk is reasonably foreseeable
                          b. The existence of an emergency
                          c. The standard is always the same…but counsel for Δ may
                               argue the circumstances in an emergency situation that causes
                               you to change some things
                  2. Some circumstances are found in the actor‘s own characteristics:
                          a. Physical limitations of the actor
                          b. Mental limitations of the actor
                          c. How to apply standard of care to a child?
                                     i. Children change enormously in their judgment and
                                         abilities over their childhood. So gradually the child
                                         grows up to be an adult, but it‘s hard to have the
                                         same standard for a child from infancy to adulthood.
                                    ii. Also, child was Π (victim) suing someone for
                                         damages. Δ said you cant recover because you
                                         contributed to the negligence
                                   iii. So courts came up to ―child standard of care‖
                                              1. Did child live up to standard that is
                                                   reasonable to expect?
        iii. The Circumstances of the Actor
                  1. Age: In most cases, children are not held to the standard of care of an
                     adult. Children under 4 are incapable of negligent act/not liable
                  2. The standard is that of a child of the same age, intelligence and
                  3. The child standard usually applies to both child victims and child
                  4. Exception: The adult standard applies when the child is engaged in an
                     ―adult activity.‖ Adult activities almost always involves an internal
                     combustion engine (ex. Gasoline engine)
                  5. Age: It is not presumed that the elderly are unable to conform to the
                     standard of care (most ppl should be able to live up to, not to
                     perfection, ordinary prudence/ability)
                  6. It may be proved, however, than an elderly person was physically
                     incapable of exercising due care, due to the infirmities of age
        iv. The reasonable prudent woman
                  1. In a sexual harassment case involving a male supervisor‘s harassment
                     of a female subordinate, it seems only reasonable that the person
                     standing in the shoes of the employee should be ‗the reasonable

             woman‘ since the Π in this type of case is required to be a member of a
             protected class and is by definition female.
        2. Π gender should be an important consideration in determining whether
             a hostile work enviornment exists.
        3. Look at standard of if women is being harassed that it is from the
             standpoint of the women that we should judge the question of sexual
        4. What would a woman find as harassing since they are the target of the
        5. The standard is a hypothetical genderless reasonable prudent person
 v. Physical Disabilities
        1. If someone is ‗hasty‘ and accident prone and doing best to live to
             standard of care but can‘t do it, then maybe there is no fault there but
             there will be legal liability
        2. Physical disabilities are usually taken into account as part of the
             circumstances faced by the actor
        3. The actor must take the disability into account
        4. Protected in once sense…we don‘t expect you to live to the normal
             standard of care if you cannot do it (ex. Blind) but you do need to act
             like reasonable prudent person with this disability. (ex. It would be
             negligence to walk on street without cane to help you navigate). You
             could be negligence if you fail to take precautions that a normal person
             with this disability would take
        5. Where disability or illness strikes without warning, the actor is not
             negligence for failing to take precautions against it
        6. Intoxication
                  a. An individual who voluntarily becomes intoxicated is still held
                       to the standard of the reasonable sober person
                  b. Thus, the actor can be held liable even if incapable to
                       conforming to the standard because of intoxication
                  c. On the other hand, the actor is not negligent simply because
                       intoxicated: the actor‘s conduct must actually breach the
        7. Insanity
                  a. General Rule: insane persons are liable for their torts, unless
                       incapable of a particular state of mind, such as malice,
                       required by some torts.
                  b. Limited exceptions exist:
                             i. Sudden onset of mental disability
                            ii. Where the Π has accepted the risk
vi. Custom and Malpractice:
                  a. The standard of care imposed on professionals (doctors,
                       lawyers, engineers) is a special example of the use of custom
                       to establish the standard of care
                  b. The standard is the degree of care and skill ordinarily
                       possessed by members of the profession.
                  c. If the professional claims special skill or knowledge, the
                       higher standard of the specialist will apply
                  d. 2 ways to look at standard of care:
                             i. it‘s demanding- must keep up with standard in the
                            ii. protected aspect of the profession-allows professional
                                 to be wrong without being negligent. Professional is
                                 entitled to be wrong as long as the error of judgment
                                 could have been made by anyone in that same field of
                                 profession under like circumstances

                   e. The ―locality rule‖ is no longer applied in most jx
                   f. How does the п establish the standard of care?
                   g. What affect did the Locality Rule have on the ability of the п
                      to prove the standard of care
vii. The General Practitioner:
                 a. Is any accommodation made for the small rural practitioner
                      with limited resources? How does the standard take these
                      circumstances into account?
                 b. What is the obligation of the general practitioner when faced
                      with a particularly difficult case?
                 c. Cts rarely substitute their own judgment of what the standard
                      of care should be.
         2. US v Carroll Towing Co-Negligence: a Balance of Risks?
                 a. In the Evaluation of Conduct as Negligence:
                             i. Is there an unreasonable risk of harm?
                            ii. What are the foreseeable risks?
                           iii. Are the risks reasonable?
                           iv. Or unreasonable?
                            v. How can we determine when the risk is reasonable?
                 b. Reasonable Risks
                             i. Risk of harm low, benefits significant.
                            ii. Risk of harm low because danger is obvious (P can
                                easily avoid the danger).
                           iii. Risk of harm high, but benefits outweigh the danger.
                 c. Unreasonable Risks
                             i. Risks are unreasonable when risk of harm is high and
                                benefits from activity are low.
         3. Carroll Towing: The Hand Formula: The Hand Formula states that a
            party is negligent when B<PL
                 a. B is the Burden of taking precautions
                 b. P is the probability of harm occurring- may be high or low
                 c. L is the severity of harm if it occurs- may be high or low
                 d. If P is low, and L is too high, that justifies taking precautions-
                      ex. nuclear power plant. Many precautions are justified to
                      make sure there are no nuclear accidents.
                 e. Formula recognized as an interesting idea but then judge
                      Posner said this formula is economically meaning of
                      negligence. We live in world of limited resources so when it
                      comes to taking safety precautions law should promote
                      safety…invest enough in safety to achieve reasonable safety.
                 f. The formula is applied ―at the margin‖ to determine whether
                      the next dollar spent on accident avoidance will yield at least
                      one dollar in accident cost savings- at some point you don‘t
                      get the bang for your buck, we spend more money but avoid
                      less cost, so at some point it is better to just let accident
                      happen and pay off victims. (saves money). Only when Δ
                      failed to use duty of care. Think about negligence in terms of
                      cost of precautions v cost of accidents. Can reduce accidents
                      for not that much and you‘re not doing it.
         4. Informed Consent:
                 a. A physician seeking a patient‘s consent to treatment has a duty
                      to inform the patient of the risks and benefits of the procedure.
                      Give patient the full story of the surgery.
                 b. The physician must disclose material risks: Risks that a
                      reasonable person in the п‘s position would want to know
                      before deciding whether or not to undergo the procedure.

                                         c.   The physician‘s failure to inform the patient of a material risk
                                              is a breach of duty.
                                         d.   Liability also requires that п to prove causation by showing
                                              that if properly informed, the п would have refused to undergo
                                              the procedure.
                                         e.   Liability also requires that the risk not disclosed be the cause
                                              of harm to the patient. Exceptions: The Δ bears the burden of
                                              proving exceptions to the requirement of disclosure.
                                                     i. The first exception is the emergency where the
                                                        patient is unable to give consent and life-saving
                                                        treatment must be given at once
                                                    ii. The second exception is where the disclosure itself
                                                        would be harmful to the patient

*Specifying the Standard of Care: Criminal Statutes, Civil Statutes, and Negligence Per Se
Why do we look at custom? To get a more specific statement of what the standard of care requires in that
situation. You do whatever because that is the custom.
                              5. Negligence per se:
                                        a. Sometimes courts find that it is necessary to specify a
                                             particular duty, rather than simply leaving the question open
                                        b. One source of specific duties is a statute enacted by the
                                             legislature, which specifies what the Δ must do in particular
                                        c. When a statute is used to specify a duty to the п it is known
                                             as negligence per se.
                              6. When to use the Statute:
                                   a. The statute must:
                                             a. Impose on the Δ a specific duty for the protection and
                                                  benefits of others.
                                             b. Δ will be liable for harm caused by a breach of that duty:
                                                        i. If the п is member of the class of persons that the
                                                            statute was intended to protect, and
                                                       ii. The п suffered the type of injury the statute was
                                                            intended to prevent.
                                                      iii. Similar to risk rule regarding proximate cause
                                                      iv. Important how to interpret the statute…what
                                                            kind of harms it was intended to prevent, who
                                                            does it protect…?
                              7. Avoiding the Statutory Standard:
                                        a. Legislative specification of duty may be avoided:
                                                   i. By finding the violation excused
                                                  ii. By interpretation of the statute→ customary
                                                       exception ex. if walking towards traffic is dangerous
                                                       but walking on opposite side isn‘t then do what is
                                                       safer (Tedla case)
                                                 iii. By the existence of other policies that render the
                                                       legislative standard inappropriate.
                              8. Licensing Statutes:
                                        a. Licensing statutes are a special case
                                        b. Violation of a licensing statute is not usually considered
                                             negligence per se.
                                        c. Ex. person‘s DL is expired. Someone rears end them. The
                                             victim sues and the Δ who rear ended them says you are
                                             driving w/out a license and you are contributing negligence.
                                             You shouldn‘t be able to recover, says the Δ. Ct says that by

                                     doing something w/out a license isn‘t proof that it is done with
                                     negligence. Doesn‘t mean he was acting w/out due care.
                                 d. The п must prove that the Δ in fact caused the injury by failing
                                     to meet the standard of care.
                       9. Other types of statutes:
                                 a. Statutes that forbid leaving the key in the ignition of an
                                            i. What was the statute‘s purpose?
                                           ii. Who was the statute designed to protect?
                                          iii. That‘s how you can tell who can recover…if liability,
                                               interprets these statutes as safety statutes-- to prevent
                                               this type of situation.
                                 b. Statutes that forbid giving alcoholic beverages to an obviously
                                     intoxicated person
IV.   Cause in fact: would the accident occur but for the Δ negligent conduct?
      a. Proving but-for: slip and fall- difficult to prove that the banana peel caused the fall
                       1. Two part test of Causation:
                                  i. Actual cause: as a matter or ordinary reasoning, did the Δ
                                     negligent conduct cause the injury to п?
                                 ii. Proximate or Legal Cause: If Δ conduct was a cause in fact
                                     of п's injury, was it a sufficiently important cause that the Δ
                                     should have to pay damages in compensation.
                                iii. If you don‘t have actual cause, you can‘t have proximate
                                     cause. No way to have proximate cause without actual, but can
                                     have actual without proximate (it‘s just not causation)
                       b. But For Test of Causation
                                  i. The ―but-for test‖ is the basic test for actual cause.
                                 ii. It asks: “but for the Δ negligent conduct, would the injury to
                                     the п have occurred?”
                                iii. This requires the trier of fact to consider what would have
                                     happened if the Δ had not been negligent.
                       c. Proof of Causation:
                                  i. Even in simple cases, it is often hard to obtain evidence of
                                 ii. Sometimes the п, for example, is unable to testify as to how
                                     the accident occurred
                                iii. The lawyer must then look to other eye witnesses, expert
                                     witnesses, or the Δ‘s own testimony to try to establish this
                       d. The ―Substantial Factor‖ Test
                                  i. The ―but for‖ test does not work well when multiple causes
                                     are operating, any one of which would be sufficient to cause
                                     the injury to the п.
                                 ii. In these situations, the courts apply the substantial factor test,
                                     asking whether the Δ’s negligent conduct was a substantial
                                     factor in bringing about the injury to the п.
                       e. Joint Causation:
                                  i. When two Δ are both negligent, and their negligence combines
                                     to injure the п, two approaches can be taken:
                                            i. Require the п to prove how much of the harm was
                                               caused by each Δ (called apportioning the harm).
                                           ii. If the harm cannot be apportioned because the injury
                                               is indivisible, hold the Δ jointly liable.
                       f. Loss of Chance:
                                  i. Loss of chance involves situations in which the negligence
                                     of the Δ deprived the п of a chance of avoiding harm, even

                                     though it was still more likely than not that the injury
                                     would have occurred even if the Δ had not ben negligent.
                                 ii. If this doctrine is recognized, how should damages be
                       g.   Pure Last Chance:
                                  i. Pure last chance equates the loss of chance with causation of
                                 ii. Under this doctrine, п recovers in full even though it is more
                                     likely than not that the injury would have occurred anyway.
                                     →not really fair if the Δ did something really insignificant but
                                     would be held responsible for the entire thing.
                       h.   Proportional Lost Chance:
                                  i. Under this variation, the п does not recover the total damages
                                     caused by the injury
                                 ii. Instead, the total damages are multiplied by the percentage of
                                     chance lost as the result of the Δ negligence.→what if chance
                                     of recovery was 51%?
                                iii. Under this scheme, should п recover in full if the lost chance
                                     exceeds 51%?
                                            i. Under traditional approach: you would recover
                                           ii. Below that you don‘t recover in full, but just a
                                                percentage of that
                       i.   Substantial Possibility:
                                  i. Substantial possibility allows full recovery only if the lost
                                     chance of recovery is considered sufficiently significant
                                 ii. It is not clear how substantial the lost chance must be to allow
                                     full recovery
                                iii. Proximate Cause: Should the Δ be liable to pay damages?

V.   Proximate Cause
     a. Proximate Cause: Rule Choice
              i. Direct Cause: no independent (independent of Δ negligence) or intervening
                 forces interrupt the path of causation from the Δ negligence to the п harm
             ii. Risk rule: The Δ is liable for the type of harm, the risk of which made the Δ
                 conduct negligent in the first place. (Also known as the Foreseeability Rule).
                               a. What exactly do you have to foresee? Ex: if you drive
                                    negligently and have an accident, it is foreseeable that another
                                    accident could occur from that accident. Where do you draw
                                    the line?
            iii. Direct Cause:
                     1. Focuses on the sequence of events, looking for intervening forces that
                           might interrupt the chain of causation
                               b. Does not consider whether the injury that occurs was
                                    foreseeable or not, so long as the Δ was negligent and that
                                    negligence “directly” caused the harm
                               c. Two problems:
                                           i. Liability is imposed even for unforeseeable results of
                                              the Δ negligence
                                          ii. Liability is not imposed for foreseeable results that
                                              are not ―direct‖
                     2. Foreseeability and Duty:
                               a. One way to deal with the problems of the Direct Cause test is
                                    to impose a foreseeability requirement on the duty element
                               b. Thus, unless harm to the п is foreseeable as the result of the Δ
                                    conduct, no duty or care arises and therefore no negligence

         3. Rescuers Doctrine:
                 a. The rescuer doctrine says that a Δ is liable to one who
                       attempts to assist a person placed in peril as the result of the Δ
                       negligent conduct.
                              i. Example: 3rd party goes to help the victim that the Δ
                                 put in danger, and that 3rd party gets hurt as a result
                                 of this, then the Δ is liable for both the first victim
                                 and now the 3rd party
                 b. In other words, the Δ owes a duty to the rescuer, foreseen
                       or not, based on the status of the rescuer.
        4. Risk Rule:
                 a. A related approach to the issue is to consider what sorts of
                       risks of injuries made the Δ conduct negligent in the first place
                 b. One then asks whether the injury that the п suffered is of the
                       type that made the Δ conduct negligent
                 c. If so, the harm is ―within the risk‖ and the Δ is liable
                 d. Requires all the elements of the negligence tort to fit all
                       together- was the conduct the cause in fact and were the
                       injuries that occurred the type to result in the injury in the first
        5. Characterization of the risk:
                 a. How the risk rule works in any given case will depend on how
                       the parties succeed in characterizing:
                              i. The risks created by the Δ conduct, and
                             ii. The nature of the harm suffered by the п
iv. Foreseeability of the extent of harm
        1. The Thin-Skulled Plaintiff:
                 a. ―You take your victim as you find him or her‖
                 b. Won‘t let Δ argue that the harm was unexpected- too bad if п
                       had a thin skull
                 c. This means that the Δ cannot limit liability by arguing that the
                       harm that the п suffered was unexpectedly severe
                 d. However, this rule is tempered by a related rule which requires
                       the trier of fact to consider whether the п condition was such
                       that some such injury was likely to occur eventually anyway.
                 e. This is inconsistent with the risk rule. The risk rule doesn‘t
                       require you to foresee exactly what will happen, just the sort
                       of harm that makes Δ conduct negligent in the first place
        2. Intervening Causes:
                 a. The direct cause test tells us to look for independent and
                       intervening causes, and suggests that they may excuse the Δ
                       from liability
                 b. The risk rule tells us to ask whether the intervening cause was
                 c. The possibility of the intervening cause coming along to
                       trigger the harm to the п may have been one of the factors
                       suggesting Δ was negligent.
                 d. Ex: Herman v Air Rifle:
                              i. Manufactured air rifles and it was loaded. Customer
                                 looking at it and shot saleswoman in store
                             ii. What was Δ negligent conduct? Why? Shipping the
                                 rifle loaded with shots. Unreasonable risk of harm:
                                 people would assume it is not loaded and someone
                                 can get hurt from it
                            iii. 2nd argument Δ makes: that they didn‘t pull the
                                 trigger (a customer did). The customer is the

                       intervening customer. D said the customer is
                       responsible because he pointed the gun to someone
                       and pulled the trigger. D blames the intervening
                       cause (the customer).
                  iv. Under risk rule, would customer‘s conduct cut off Δ
                       liability? What made d conduct negligent to begin
                       with? Because someone can get hurt (there is a risk
                       that someone will handle gun carelessly). Ct said
                       there is a foreseeable risk that someone will miss-
                       handle the gun and that happened. The existence of
                       the customers conduct is foreseeable. Therefore, the
                       harm to п is foreseeable. They could have also sued
                       customer (joint tortfeasor).
                   v. The result is precisely what you would expect would
          e. Ex: Derdianrian v. Felix Contracting Corp.
                    i. What should they have done (precaution) could they
                       have taken to prevent the injury?
                            1. The barricade was not in a good location
                                 They should have set up a better barricade,
                                 such as something that will keep a car out so
                                 that if they lose control, it would stop the car
                                 and prevent them from entering the work
                            2. The intervening act was the guy that had a
                                 seizure while driving. He failed to take his
                                 medicine. He lost control of his car and hit
                                 п. The Δ said it was a freakish accident and
                                 not forseen
                            3. This is the ―risk rule:‖ what was the
                                 negligent conduct? Failing to barricade the
                                 job site properly, because of the risk that is
                                 foreseeable. Our foreseeable risk of harm is
                                 a car a negligently entering a site (this
                                 intervening act is the sort of thing you see to
                                 make you take precautions from blocking a
                                 car to entering the job site at all).
                            4. This is the result of the risk- Intervening
                                 negligent act by 3rd party that triggers the
                                 harm, but that harm is foreseeable…it made
                                 their conduct negligent in the first
                                 place…that is why they had the duty to take
                                 precaution against that
                            5. Odd ball reason for the accident occurring-
                                 the negligence isn‘t the ordinary thing you
                                 would think, but that doesn‘t matter (it was
                                 still negligent driving).
3.   Intervening Negligent Act
          a. Some intervening negligence is foreseeable
          b. The possibility of negligent conduct by others may create a
              duty of care, which Δ breached (eg Derdiarian)
          c. Some types of negligence are considered a foreseeable
              additional risk created by the Δ negligence (e.g. medical
              malpractice in treating the п injuries)…if п is hurt and has to
              go to the hospital…and then the doctor injures the п more
              (malpractice), then the original tortfeasor is responsible for the

                                       original injury and for the malpractice. The Doctor is
                                       responsible for just the malpractice. You never recover twice
                                       for the same injury.
                         4.   Coping
                                   a. One type of situation involving intervening forces is when
                                       they involve the efforts of individuals to try to cope with the
                                       dangers created by the d negligence
                                   b. In such situations, the intervening forces are often found to be
                                       foreseeable, on the ground that one could expect some
                                       reaction to the dangerous situation.
                         5.   Superseding Negligent Acts
                                   a. Sometimes intervening negligent actions are held to supersede
                                       the negligent conduct of the Δ. This means that the Δ
                                       negligence is not the proximate cause of п injury.
                                   b. To supersede, the negligence must be unforeseeable, such as
                                       conduct that is bizarre or grossly careless.
                         6.   Intervening Criminal Misconduct
                                   a. Deliberate criminal misconduct may be superseding
                                   b. It is not superseding if the Δ is found to have a duty to protect
                                       the п from the risks of criminal misconduct. Examples:
                                              i. Landlord‘s duty to tenant
                                             ii. Store owner‘s duty to customer
                                            iii. Where Δ conduct defeats the п own precautions
                         7.   Requirements of negligence per se (be in class of person and suffered
                              harm that statutes was meant to prevent)= Statutes that require owners
                              of vacant buildings-- so no one can enter that is unauthorized. Now the
                              п has a better chance of prevailing because of this statute. Now the п is
                              within the risks. She is in the type of person that the statute was
                              designed to protect.
VI.   Multiple Tortfeasors
      a. Indivisible Injury:
                i. Where the misconduct of two (or more) Δ combines to inflict an ―indivisible
                   injury,‖ the two tortfeasors will be ―jointly and severally‖ liable.
               ii. Injury is ―indivisible‖ when you cannot separate the harm done by each
              iii. ―Joint and several liability‖ means that the п can sue any or all of the tortfeasors
                   and collect the full amount of damages from any one of them who if found
              iv. Comparative negligence (%) v. contributory negligence (п can‘t collect anything
                   if contributory)
                        1. Comparative- can compare negligence of Δ to each other and assign %
                             of fault to each Δ
                        2. Should we keep this and abolish the jointly and severally liable rule?
                        3. Basic Issue: who bears the risk? If one of the d cannot pay its share of
                             the judgment. In joint and several liabilities, the other d bears the risk if
                             one of the d‘s can‘t pay his part. When you get rid of joint and several,
                             the risk shifts to the P…
      b. Concert of Action
                i. If two or more wrongdoers are acting ―in concert‖ and one of them causes an
                   injury, all the actors are liable for harm inflicted by any one of them
               ii. Acting ―in concert‖ means acting together, with at least a tacit understanding of
                   a common goal or purpose.
              iii. No formal agreement is required in order to act in concert.
      c. Enterprise Liability
                i. Sometimes the п cannot identify which one of a number of possible Δ was the
                   cause of her harm

          ii. Enterprise liability imposes liability on all members of the group of possible Δ
         iii. П must prove:
                   1. Joint awareness of the risk
                   2. Joint capacity to control the risk
d.   Alternative Liability
           i. Again, the п cannot identify which of the two or more negligent Δ in fact caused
              the harm
          ii. Alternative liability holds both negligent Δ liable unless one or the other can
              exonerate himself
         iii. In effect, the burder of proof is shifted on the issue of causation, rather than
              exonerate both negligent Δ
e.   Market Share Liability: the DES case
           i. П must join manufacturers representing a substantial share of the market for the
          ii. П must be unable to identify the manufacturer of the particular product that
              caused the harm.
         iii. The burden shifts to the Δ
         iv. If unable to show it did not make the product that caused the injury, Δ is liable
              for the percentage share of п damages represented by its market share of the
          v. NOTE: this approach does NOT result in joint and several responsibility
         vi. If we had perfect info in each case and know which mother took the pill from
              each company, we would have a situation where company A (10% of market) is
              100% responsible in 10% of the cases. But we can‘t do that…the info is gone.
              Instead, say company A pays 10% of damages of all of the cases.
        vii. Sindell v Abbott Lab
                   1. Daughters of mothers who took DES developed cancer
                   2. Who do you sue? The difficulty: there were tons of companies that
                        produced this drug! So there was vastly more potential Δ→the odds of
                        one of them producing the drug is small.
                   3. Can sue and recover? Ct goes through various forms of joint liability:
                        concert of action, enterprise, and alternative. In each case, none fits this
                   4. These companies didn‘t get together- no common plan, no concert of
                   5. Ct rejects enterprise: we don‘t just have 6 companies here like in Hall.
                        There are hundreds of companies. No joint awareness of the risk. No
                        way to control the risk.
                   6. So Ct rejected all of the theories: so they come up with market share
       viii. After Sindell:
                   1. MSL is a response to the Sindell problem- MSL originated in a Student
                        Law Review article. It was picked up in Calf in Sindell case.
                   2. Some courts eliminated the requirement that п sue manufacturers
                        representing a substantial share of the market
                   3. Other courts eliminate a Δ liability to exonerate itself and escape
                   4. NY takes the market- the theory is market share- no exoneration-
                   5. One court extended market share liability to products other than DES
                   6. Reasons why п didn‘t recover under MSL:
                             a. If п doesn‘t sue a substantial share of the market.
                             b. Each manufacturer wasn‘t making a fungible product→
                                   weren‘t interchangeable
                             c. Not all car batteries are made the same way and have the same
                                   risks- not all car batteries are defective-

                                    d. Products containing asbestos (doesn‘t work either)
        f.   Indemnity and Contribution
                   i. Indemnity is a rule that requires one tortfeasor to fully reimburse another
                      tortfeasor who has paid the п judgment.
                  ii. Where the rule applies, it usually requires full reimbursement regardless of
                      rules such as comparative negligence. When is it required?
                           1. Indemnity may be required by a K between the two parties
                           2. A Δ who is only vicariously liable may seek indemnity from the party
                               who was actively at fault (ex: employee driving negligently and
                               employer is responsible)
                           3. A retailer held liable because of a defective product may seek
                               indemnity from the manufacturer
                 iii. An obligation to indemnify arises out of the relationship between the two
        g.   Contribution
                   i. Contribution refers to a sharing of responsibility between 2 tortfeasors
                  ii. Contribution usually requires that the two (or more) tortfeasors be jointly and
                      severally liable for an indivisible injury
                 iii. Before comparative responsibility, the tortfeasors usually shared pro rata
                 iv. With comparative responsibility, shares are based on the relative percentages of
                           1. We are trying to figure out responsibility among all the Δ that they
                               caused to the п
                           2. Old common law: п could enforce judgment against any jointly Δ. No
                               contribution under common law. A few states modified that- many
                               created rights by contribution by statutes.
                           3. Indemnity is a full reimbursement, comparative is partial
                           4. Examples: Problem 1 pg. 331

                           П ($1000 damages)               v         Δ 1 (pays $300 to settle)
                                                                     Δ 2 (held liable at trial)

    So п can go to trial against Δ 2. Jury finds Δ 2 liable. How much does Δ2 have to pay? There are 2
    ways ct used to deal with this:
                   i.     Δ2 should get some type of credit for the partial settlement that Δ1 gave.
                          ―Dollar for dollar credit‖ (so they pay $700). Can Δ 2 seek contribution from
                          Δ 1 for $200 to make it even? If you allow that contribution, it discourages
                          settlements, like the one Δ 1 made. As long as settlement was in good faith,
                          there would be no right of contribution.
                  ii.     Pro rata credit- when п settles with one of two Δ, the settled half of the case.
                          So if there is $1000 of damages, he settled half of the damages by getting the
                          $300 from Δ1. Δ2 would then have to pay $500. п ends up with only $800,
                          but cannot go back and get more money from Δ1.
                 iii.     Most jx favor the ―dollar for the dollar credit.‖

    What if Δ1 pays $700 to settle? П still has $1000 damages. How much should Δ2 pay? They only
    pay $300- not fair to Δ1. P is satisfied. Does Δ1 have contribution to Δ2? No, once he paid the
    $700, that is it. The only way he would be allowed to collect from Δ2 is if he paid for the whole
    case in full and then he could seek contribution from Δ2.

     What if п has $10,000 damages? Δ1 pays $x to settle (he is 50% responsible), Δ2 is 30%
     responsible, and Δ3 is 20% responsible. If Δ1 pays everything, but only 50% responsible, he
     should get $3k from Δ2 and $2K from Δ3.
VII.     Damages for personal injury
         a. Past Economic Loss:

           i. Wages lost up to date of trial
          ii. Medical expenses incurred up to date of trial
b.   Future economic loss: total and reduce to present value:
           i. Wages to be lost in the future
          ii. Medical expenses to be incurred in the future
c.   Past and future pain and suffering
           i. No market to value it
          ii. Humiliation
         iii. Embarrassment
         iv. No longer able to do things
d.   Past economic loss:
           i. Lost wages and medical expenses up to the date of trial
          ii. These losses are capable of precise calculation and proof, but you have to
              actually take the time to prove it
e.   Future
           i. These losses are more speculative, as it is necessary to predict that п would have
              earned but for the accident, and what п will have to pay for treatment, because
              of the accident
          ii. One must predict not only what the losses would be, but how long they can be
              expected to continue
                   1. Will п ever fully recover and return to work?
                   2. How long will п likely live?
                   3. How long would п have worked but for the accident?
         iii. These totals are usually reduced to present value
         iv. The lump sum satisfies п for up to the trial and beyond the trial into the future:
              we count around 20 years from now and see how п is doing…you have to
              predict how they are going to do 20 years from now.
f.   Structured settlement: annuity- pay out instead of in one lump sum, it will pay out every
     year a certain amount of money. Tell insurance company how much you want every year
           i. Adv for п: automatic financial mgmt
          ii. Adv for Δ: although you are paying a lot of money over time, you might end up
              spending less- a little bit at a time
         iii. Adv: provides tax benefit- money for personal injury is not taxable- but if you
              put it in an interest bearing account, it is taxable.
g.   Pain and Suffering
           i. There is no mathematical formula that can precisely calculate the award for P&S
          ii. P&S compensates for the pain of the injury itself, the psychological effects of
              the pain, and also usually for the ongoing suffering experienced because of
              lasting effects of the injury (also known as loss of enjoyment of life).
         iii. This element also has past and future components
h.   Loss of consortium:
           i. Loss of consortium is compensation for the loss of society and services of
          ii. Originally it was compensation to the husband for loss of services of his wife
              resulting from tortiously inflicted injury
         iii. All jx now allow the wife a similar action
         iv. More controversial are actions by parents for injuries to children, and vice versa
i.   Avoidable consequences
           i. П will not recover for losses that the п could have avoided by taking reasonable
              precautions after the accident occurred. This is a general rule of damages
          ii. In the case of personal injuries, this may require the п to obtain medical care to
              treat and cure the injuries suffered in the accident
         iii. Whether the п must undergo a major operation depends on the danger from the
              operation and the chances of a cure
         iv. What about religious groups? What if they don‘t allow you to do things to
              mitigate damages (ie: going to the doctor)? They can go either way

VIII.   Limited Duty
        a. Non-feasance and Special Relationships
                  i. ―Limited Duty‖ means that the court, usually for some reason of policy, adopts
                     as a legal rule that no duty of care is owed by the Δ
                 ii. If no duty of care exists, then the п negligent action fails at the first element.
        b. Nonfeasance
                  i. Nonfeasance means non-action, and usually refers to the conclusion that the Δ
                     conduct amount to a failure to act, as opposed to an action that may have been
                     performed without due care
                 ii. In some situations this will mean that the Δ is not liable because Δ had no duty
                     to act
                iii. If you do act (or do something) that is no longer nonfeasance- it might be
                     misfeasance though
                iv. This is a rule of non-feasance- it can’t lead to liability if you had no duty to
                     do it- there is no duty to help another
        c. Misfeasance
                  i. Misfeasance usually expresses the conclusion that the Δ acted and acted badly
                     (without due care)
                 ii. It is often possible to argue that what appears to be ―mere‖ nonfeasance is
                     actually misfeasance: Acting and acting badly (ex: urging someone to jump in
                     water and when they do, they begin to drown but you don‘t help them and they
        d. Creating a duty to act
                  i. Another way of attacking a nonfeasance claim is to argue that Δ in fact did have
                     a duty to act and was negligent in breaching that duty
                 ii. One situation in which a duty is created is when the Δ, although under no duty to
                     act, in fact undertakes to do something and does so badly
        e. Duty Creation: Examples
                  i. One‘s negligence (or even non-negligent) conduct injures another. One may
                     have a duty to aid, and a duty to rescuers.
                 ii. One‘s voluntary assumption of a duty may create a duty to continue to perform,
                     or at least to warn that it will be discontinued, where one knows that others have
                     come to rely on the performance of the duty
                iii. Ex: Florence v. Goldberg: The ct makes it clear that there wasn‘t a free standing
                     existing duty to have a guard stand at the intersection. So the п wouldn‘t have
                     been able to exercise that if the child got hurt and there wasn‘t a guard there, the
                     п can‘t complain that there should have been someone standing there
        f. Special Relationships:
                  i. Special relationships create a duty to act
                 ii. Ct find special relationships in certain traditional categories, such as the
                     common carrier-passenger relationship, which creates a duty to protect the
                     passenger from others
                iii. Ct also recognize special relationships where the actor has a duty to control
                     another to prevent harm
        g. NIED: (negligent infliction of emotional distress)
                  i. In the beginning:
                           1. Originally the common law did not recognize a cause of action for
                                conduct that caused only emotional injury, unless it could be fit within
                                an existing coa such as offensive battery (remember the Fisher case?)
                                Negligence tort requires there to be damage
                           2. On the other hand, the law did allow damages for mental suffering if it
                                was the result of a physical injury
                           3. Searching for limits:
                                    a. The continuing concern has been how to set reasonable and
                                         reliable limits on an action for purely emotional harm.

                     b.     First, what sort of conduct by a D that causes emotional
                            distress should result in liability?
                      c. Second, what guarantees of the genuiness of the P‘s injury
                            should we require?
  ii.   The Impact Rule:
            1. An early attempt at setting limits was the impact rule
            2. The D‘s negligent conduct would not lead to liability for emotional
                 harm unless the P suffered some physical ―impact‖ on his or her person
            3. The impact itself did not have to cause physical injury
            4. Negligence was judged in the usual sense of creating unreasonable risk
                 of physical harm
            5. Ex: woman at circus- horse took a dump and it landed on her- she had a
 iii.   Zone of Danger
            1. Courts then began to allow recovery if the P, although not physically
                 touched, was placed in danger by the D
            2. Under this test, the cts bean to allow recovery for persons who suffered
                 fright at the threat to their own personal safety
            3. Recovery for persons placed in serious jeopardy by D‘s conduct and
                 suffered injuries
 iv.    The Physical Injury requirement
            1. Some cts also adopted a requirement that the P‘s emotional distress
                 must result physical injury to the P (like a heart attack, or stroke)
            2. This often gets watered down to a requirement that the P show
                 objective physical symptoms caused by the emotional distress
  v.    Bystander Recovery
            1. The next extension allowed recovery by ―bystanders‖ to an accident
            2. Bystanders are close relatives of an accident victim who suffer
                 emotional distress at witnessing the injury to the victim
            3. Recovery is allowed even though the bystander was not in the zone of
 vi.    Dillon Factors:
            1. Dillion case: mom saw D kill her son- mom and sister sued for NIED.
                 Sister has good coa because she was right next to him (she satisfied the
                 zod test and could recover), but the mom was not in the zod (she was
                 across the street) so she couldn‘t recovery. Mom was not in any danger.
                 Mom said she suffered watching her son get killed. Calf SCt said the
                 zod test causes different results when there really are the same
                 situations. The mom and sister suffered the same. It was foreseeable
                 that if you injure a child like this a parent who sees this will suffer
                 emotional distress- so they got rid of the old case and in with this new
            2. You can recover (MOM-in place of safety) if you meet these 3
            3. Was the bystander at the scene of the accident? Yes
            4. Did the bystander witness the accident and the injury to the victim?
            5. Were the bystander and the victim closely related? Yes
vii.    Dziokonski case:
            1. Ct recognizes Dillion precedent- and the foreseeability issues here
            2. P didn‘t witness the accident
            3. Ct allowed recovery
viii.   Thing v. LaChusa
            1. Ochoa case: parents visiting son in juvenile home: he was ill- he was
                 getting worse

                           a.    SCT said he had bystander recovery- there were at the scene
                                 (seen son day by day getting worse)
                            b. Ct stretched Dillion case more
                  2. Problem: gone from having an arbitrary bright line to no law at all (no
                       one can predict if there is liability)
                  3. Ochoa case might still be good law- you still have the 3 elements in
                       Dillion (they are just taking place over a longer period of time)
                  4. This case took elements of Dillion and said they are required, not
        ix. The Molien Case
                  1. In the previous situation, the d‘s conduct was negligent in the usual
                       sense of creating an unreasonable risk of physical injury.
                  2. The present frontier of emotional distress litigation involves whether
                       there should be liability for conduct that creates only an unreasonable
                       risk of emotional harm
                            a. D sued over syphilis: married women went to doctor and he
                                 negligently diagnosed her as having syphilis (but she didn‘t
                                 have it). Her reaction is that her husband has been sleeping
                                 around and he gave it to her (same was true for him). Their
                                 marriage destroyed and suffered NIED.
                            b. Problem: could husband sue for NIED?
                            c. Doc owed a duty to husband.
h.   Limited Duties- Premise Liability: Duties of Owners and Occupiers of Land
          i. The rules about the duties owed by owners and occupiers of land to those
             entering onto the land can be thought of as a highly developed variation of
             ―limited duty.‖
         ii. In this case, the scope of the landowner‘s duty depended on the status of the P
             who comes on the property.
        iii. Holzheimer v Johannesen
                  1. P wants the jury to determine that he was an invitee-
                  2. Trial left it to the jury to determine if he was an invitee or licensee-
                       can‘t be a trespasser because he was invited on to the premises.
                  3. He is a licensee- it was customary to do this business practice in this
                       town- D was not benefiting anything (more of just a courtesy to a
                  4. Don‘t categorize the P and then think you are done- the duty is another
        iv. The Categories:
                  1. Trespasser: one on the land without permission: owned only a duty
                       not to willfully and wantonly injure. Makes a difference: unknown
                       trespassers are owed minimal duty because you don‘t know they are
                       there. If you know of the presence of a trespasser, and you know that
                       they are about to confront some sort of harm, you have to warn them.
                  2. Licensee: One on the land with permission but not for the benefit of the
                       owner: owed only a duty to warn of known dangerous conditions.
                  3. Invitee: One on the land for the benefit of the owner: owed a duty of
                       due care. You may have the responsibility to make the area safe.
                  4. Why do it like this? Why not just use a reasonable objective standard?
                       If you are doing business purpose, it is different from a social event.
         v. The Prima Facie Case- steps to take!
                  1. Categorizing the P establishes the duty of care, if any.
                  2. P must still prove that the duty was breached
                  3. P must still prove that the breach of the duty was the actual and
                       proximate cause of the harm to the P
        vi. Palmtag v Gartner Construction

                  1.   This was the P own house- how can P be licensee? Because D had
                       control over the house while they were remodeling it. P says she was an
                  2. Determine was there a duty? Determine which category P is.
                  3. Ct said she was an invitee as a matter of law- there for the benefit of
                       herself and D- P was on the premises to check on the house that she
                       paid D to remodel- so part of business relationship between owners of
                       house and contractors. So there was an economic benefit to the
        vii. Ex: if have a business held open to the public, and if you go in there you are an
             invitee (even if you are just browsing, going along with a friend, etc). Since it is
             open to the public, you are an invitee.
       viii. With regard to business, not every part of the premises is open to the public.
             What if you go to the store and employee tells you that you can go to the back to
             get some empty boxes. Sign on door says Employee only, but you still go in.
             What if she falls back there? Well, she is not a trespasser because she had
             permission. She was back there for her own purposes- so she will be classified
             as a licensee. If she falls while in the produce section, she is an invitee look at
         ix. Exceptions to the 3 categories
                  1. Trespassing Children (―Attractive Nuisance”) (“Turntable‖)- it is a
                       beautiful illustration of the Hand Formula- it is an industrial equipment
                       used in RR. It looks like a merry-go-round and kids‘ feet would get
                       stuck in it and severed off. It would be too much of a burder to get rid
                       of the turntable though. So how can we have it and still protect kids?
                       Put a lock on it when no one is using it. Burden=minimum. Probability
                       of harm/severity of harm=significant. It is negligent not to take that
                            a. A duty of care is owed to children even if they are trespassers
                                       i. The D has reason to know of the children‘s presence;
                                      ii. The D has reason to know of the existence of a
                                           dangerous condition
                                     iii. The D should realize that the children will not
                                           recognize the danger
                                     iv. The D then fails to use due care
                            b. According to the R2K, this applies to artificial conditions to
                                 the property. Doesn‘t state a position to natural conditions.
                            c. What about swimming pool? Put up a fence, gate, lock…
                            d. Texas follows the R2K rule: you have basic requirements. The
                                 rule is most protective of the younger children.
                  2. Attractive nuisance= both parts are inaccurate because the condition of
                       the property that causes the accident doesn‘t have to be a nuisance. It‘s
                       not really a nuisance at all.
                  3. Mozier v Parsons
                            a. Whatever it is on the premises must entice the child to trespass
                            b. But now the R2K does not require that the premise entice the
i.   Landowner Duties
          i. Firefighter‘s Rule
                  1. A landowner owes no duty of due care to a firefighter with respect to
                       the condition that made the firefighter‘s presence necessary. (Licensee)
                  2. However, a landowner does owe a duty to the firefighter with regard to
                       other distinct hazards that may be present on the property.
                            a. Chapman v. Craig

                                       i. Drunk man-police came to arrest him, and in the
                                          process of arresting drunk man, police man was
                                      ii. Trial Ct: granted summary judgment to D because of
                                          firefighter‘s rule- P appeals
                                     iii. The Rule: Police is a licensee, not an invitee; why is
                                          the duty limited? So people won‘t feel hesitant to call
                                          the police if they need them
                                     iv. Most cts abide by this rule
                                      v. Equal protection argument: you are treating parties
                                          differently under the law for no good reason-kicks in
                                          when classifications are being draw on particular
                                          suspects of race
j.   Social Guests
          i. A social guest receives an invitation, and so is classified as:
                   1. Licensee:
         ii. The rationale is that social guests are on the premises with permission but not
              for a business purpose, and so must be licensees
        iii. Some courts are willing to classify guests as invitees if some incidental business
              purpose or benefit to the landowner can be shown
                             a. Hambright v. First Baptist Church
                                       i. P sues that she is an invitee to church- she fell-
                                          claims says she is licensee
                                      ii. Lower ct: granted summary judgment to D. On what
                                          basis could they enter summary judgment? Was there
                                          a duty and if so was it breached? The duty owed
                                          depends on if she is a licensee or invitee.
                                     iii. She says they breached this duty by waxing ground
                                          with wrong type of wax
                                     iv. She has evidence to show she is an invitee- and that
                                          they owed her a duty because they breached the duty.
                                          The church argues this by saying that this is
                                          benefiting the entire community so she is a licensee.
                                          A licensee is to have a more limited duty- warning to
                                          warn about any dangers.
                                      v. A summary judgment is available when there is no
                                          issue of material fact that has to be tried to a jury
                                     vi. If the ct says there is not dispute of who she is, if she
                                          is a licensee, then they did not breach the duty owed
                                          to her.
                                    vii. D can get summary judgment and keep the case from
                                          getting to the jury- her status is a matter of law.
                                   viii. Church wins in getting summary judgment- P tried to
                                          say that the Church is open to the public and they are
                                          there for the purpose of the premises of being open,
                                          so then anyone is an invitee.
                   2. Ct rejects this notion and says that anyone who goes to the Church is a
k.   Recreational Premises
          i. Recreational use statutes limit the duties of owners and occupiers of property
              who make their land available, without fee, for recreational uses such as
              hunting, fishing, and hiking
         ii. The duty owed may actually be less than that owed a licensee, since some
              statutes eliminate even a duty to warn
        iii. Statute must be construed. The D must show that the statute in fact applies.
                   1. Reed

                           a.   D signed the lease as a representative for the hunting lease
                           b.   P fell from tree stand and sues D to recover
                           c.   Why didn‘t P sue landowner? Because owner didn‘t put up the
                                tree stand. There was nothing that the landowner did- the D
                                put it up.
                           d.   What is the basis for holding Gimber liable? He was actively
                                negligent in the way he set up the tree stand. So the D is trying
                                to gain immunity created by the statute.
                           e.   D argues that the land meets 3 of the requirements-
                           f.   Ct found that D was not an occupant- he signed the lease as a
                                Rep of the club-not a personal capacity. If P sued the hunting
                                club, then the club could have taken adv of the statute (they
                                were the leasee).
l. Criminal Attacks
         i. A business may owe an invitee a duty to take reasonable precautions against
            criminal attack
        ii. Usually the business must be aware of criminal activity in the area, which makes
            the possibility of such an attack foreseeable.
      iii. ―Reasonable precautions‖ is open to interpretation regarding what must be done,
            and over what area. Remember, B<PL!
       iv. McClung
                 1. P abducted at gunpoint- her husband sued D (and Walmart) saying they
                     were negligent for not providing security for the parking lot.
                 2. Lower Ct: summary judgment for D- relied on existing Tenn.
                           a. No duty unless they know that acts are occurring or about to
                                occur that pose imminent harm to an invitee
                           b. The attack has to be in progress-store owner has to be aware
                                of it before any duty of care can kick in- what is the burden
                                you put on the business owner if you do hire a security guard.
                 3. Foreseeability to the prior incidents rule- look at how many times there
                     have been other criminal acts. When store owner is put on notice that
                     there are other attacks, once the incidents occurs, and the owner has
                     notice of the problem, well then the owner has a duty of care.
                           a. Problems with prior incidents rule:
                                       i. Contrary to public policy
                                      ii. It will lead to arbitrary results
                                     iii. Erroneously equates foreseeability of an act with
                                          previous occurrence
                                     iv. Removes too many cases
                 4. So moved to the ―totality of the circumstances:‖ weighs all of the facts
                 5. Ct finally adopts a balancing approach- will Walmart be liable since
                     there was a duty of care? Look at elements of negligence: if they had
                     security would it have prevented the attack more likely than not?
                 6. The old rule put a heavy burden on P; if D could show they had no idea
                     that a crime was occurring- they get sum judgment. The new rule: they
                     will preclude summary judgment if there are disputive factual issues.
                 7. D view: traded a nice clear cut rule (easy to get sum judge) with an
                     open-ended fact specific inquiry- you still have defenses. P want cases
                     that make you an invitee and sent to the jury.
m. Limited Duty and Exceptions-Abolishing the Categories Lessors of Real Property
         i. Rowland v Christian (Calf)-know what this case did for the final
                 1. P injured himself at neighbor‘s house by the faucet handle- he is a
                     licensee because he is a social guest- as a licensee, he is owed a duty to
                     refrain from willful or wanted injury

                   2.   Duty in Calf towards a licensee is more limited and restricted than
                   3. Trial Ct: granted sum judge to Δ because P couldn‘t show that D
                        willfully/wontedly hurt her.
                   4. SCT: said public policy changed-so they got rid of the tri-part
                        classification- because it is not taking into consideration the proper
                   5. Dissent: if adopt new approach- moving from a set of clear cut rules to
                        one which is dependent on the jury‘s fact finding
          ii. Abolishing the Categories
                   1. What was wrong with the categories?
                             a. Needless complexity
                             b. Based on the wrong considerations
                   2. What is the proper approach?
                             a. Impose a duty of due care under all the circumstances
                             b. The status of the P is now merely one circumstance to
                                  consider in determining whether a duty was owed and was
                             c. You have to look at the particular facts: a trespasser is
                                  unknown/unexpected and unforeseeable, so no duty. But you
                                  might know people are always trespassing on your property
                                  (now harm to trespasser is not unforeseeable)
                             d. Summary judgment for the D won‘t happen anymore-it is
                                  tougher now
        iii. Jones v. Hansen (Kansas)
                   1. P fell down stairs-she was a licensee (social guest) playing bridge
                   2. D cannot wantonly/willfully injure her
                   3. Trial Ct: sum judge for D
                   4. Abolished licensee/invitees, but kept trespassers
                   5. To be applied retroactively does not mean to go back and open up final
                        judgments: it means that any case that hasn‘t been fully litigated (still
                        pending); they would have to use the new rule. Ct don‘t make law, they
                        only discover the law.
                   6. Prospective means: applies to cases that accrue after the date of
                        decision so that the next person that falls down the stair case after this
                        Kansas case would be able to take adv of this new rule.
                   7. The Ct here says it will only be applied prospectively because the ct is
                        making a new rule and they can‘t pose that on the homeowners- they
                        are blowing off stare decisis- gives the owners a new chance to
                        conform to the new rule
                   8. The D in this case got screwed because they applied it ‗prospectively‘
                        but not to the D in this case.
         iv. Halfway Measures
                   1. Short of totally abolishing the categories, some courts have eliminated
                        only the distinction between licensees and invitees
                   2. A landowner would owe a duty of due care under all circumstances to
                   3. Trespassers would be still owed only a limited duty. Their presence on
                        the land without permission is still considered a decisive factor in
                        limiting the landowner‘s duty.
n.   Lessors: Traditional Rules
           i. The traditional rule was that the lessor owed no duty of care to a lessee or to the
              lessee‘s invitees
          ii. The rule was based on the view that the lease of the premises acted as a
              conveyance of the property for a period of the lease.
        iii. Under that view, the lessee was responsible for the condition of the premises

             iv. Coggin v Starke Brothers Realty
                       1. P fell down in apt because the hand rails were not safe
                       2. Under old rule, the landowner would not owe her a duty, but the
                            argument in this case that he does her a duty is: someone has to have
                            responsibility to the general apt area
                       3. Trial ct: sum judge to D because no duty rule
              v. Exceptions:
                       1. The exceptions to the no duty rule recognized that the lessor did retain
                            some control and responsibility for the condition of the premises under
                            some circumstances
                       2. For example, the lessor retained responsibility for ―common area‖
                            because they were not part of the ―conveyance‖ but remained in the
                            lessor‘s control
                       3. The lessor was responsible for repairs negligently performed
                       4. The lessor was responsible for undisclosed latent defects in the
                            premises (Duty to warn)
                       5. Where the premises are leased for the purpose of permitting the public
                            to enter (ie. For a business), the lessor owes a duty
             vi. Pagelsdorf (Wis)
                       1. D owned 2 story duplex: D would make repairs to the premises-hand
                            railings were deteriorated- landowner never fixed it, so they moved out.
                            When moving out, P fell because of the railings
                       2. Factual issue: there was no sum judge to D because there was an issue
                            about if owner knew there was a rotting in the rail-family had to tell
                            him and she said they told him, but he said no they didn‘t.
                       3. Jury found that owner didn‘t know/no duty to repair→no liability
                       4. Issue on appeal: whether D owed a duty to exercise and maintain the
                            premises? Ct said yes- if it is foreseeable there is a duty (abolished
                            lessor/lessee duty)
                       5. What is implied warranty of habitability? It is implied that when the
                            landlord turns over to the tenant, it will be safe/livable.
            vii. Abolishing the No Duty Rule
                       1. As the modern lease came to be viewed as a k rather than a
                            conveyance, the basis for the no duty rule disappeared
                       2. At least for residential leases, the courts have tended to abolish the no
                            duty rule and replace it with a duty of due care
                       3. The courts say it applies retrospectively-why? Because no landlord
                            could have looked at our rules and thought they had no duty-the rules
                            were such that the landlords would know that they did have a duty
IX.   Wrongful Death
      a. Original CL: there was no coa that existed when someone‘s wrongful negligent act
         caused the death of another
               i. Personal actions terminated by the death of either party- the death of one of the
                  parties meant the action was over
              ii. If the tort resulted in the death of the victim, the victim‘s coa died with him or
                  her. The cause of action, it was said, did not ―survive‖ the victim‘s death
             iii. Others who may have depended on the victim for support did not have a coa,
                  either. The death of another was not an injury to them.
      b. Statutory changes
               i. ―Survival Statutes‖ proved that the cause of action belonging to the deceased
                  victim is not lost by reason of the victim‘s death.
              ii. ―Wrongful Death‖ acts (AKA Lord Campbell‘s Act) create a new coa for those
                  injured by the loss of the deceased‘s financial support and companionship.
      c. Whose Death? Who Recovers?

               i. The deceased‘s own claim usually passes to the estate, is asserted by the
                  representative of the estate, and any award is distributed through the estate.
              ii. Those who may sue for wrongful death are defined by the statute.
             iii. Jx disagree whether an unborn child is a ―person‖ for whose death a wrongful
                  death will lie.
             iv. In TX: the coa can be brought by parent, spouse, and children (not grandparents,
     d. Moragne v. States Marine Lines
     e. O’Grady v. Brown
               i. Pregnant lady looses her baby-she has coa to herself personally for doctor‘s
                  negligence, but does she have a coa for her fetus? If child is born alive, then
                  there is a coa.
              ii. But what to do if fetus is stillborn? Most jx say there is a wrongful death action.
                  But the states that said no coa are the biggest states (NY,Calf, TX, Fl).
             iii. In this case, they said the fetus was a child
             iv. When you have a statute, still determine if it is constitutional or not.
     f. Murphy v. Martin Oil
               i. Wrongful death action and the survival action representing the victim‘s own
     g. Damages in Survival Actions
               i. These are the deceased‘s own losses:
                       1. Lost wages up to the time of death
                       2. Medical expenses until death
                       3. Conscious pain and suffering until death
                       4. Funeral expenses
                       5. Damage to deceased‘s property
     h. Damages for wrongful death
               i. Keep in mind that this action allows recovery for the injury that others suffer as
                  a result of the victim‘s death
              ii. Many statutes originally limited recovery to ―pecuniary loss‖
             iii. Pecuniary loss was defined as the amount that the deceased could have been
                  expected to contribute to the support of the P.
     i. Loss of Society
               i. The pecuniary loss limitation had the effect of making recovery for the death of
                  a child small to non-existent
              ii. By judicial decision or statutory amendment, many jx now allow recovery for
                  loss of society of a child; in effect, for emotional distress
             iii. If the child is old enough, some estimate of future earning capacity is possible
     j. A derivative Action
               i. Both statutory actions depend on the ability of the deceased to recover (if
                  deceased had lived and brought a lawsuit against D, would that P/deceased
                  prevail?) He must have a good tort claim.
              ii. If the deceased would have been barred by contributory negligence, that will
                  also bar recovery for both statutory actions.
             iii. If a party entitled to sue for wrongful death negligently contributed to the
                  victim‘s death, that will also limit recovery.
     k. Damages in wrongful death cases are the same in the ―damages‘ chapter: calculate future
         loss earnings. Make estimate of how much they would have earned. How long would he
         work? Etc…
X.   Defenses: the п conduct as a defense
     a. Contributory Negligence
               i. The P‘s failure to use due care for his or her own safety was a total bar to
                  recovery in negligence.
                       1. Duty of due care- ordinary reasonable care under all the circumstance
              ii. In most jx, contributory negligence was an affirmative defense on which the Δ
                  had the burden of proof.

        iii. Butterfield v Forrester
                   1. P running down the road really fast- ran into obstruction put up by Δ
                   2. P was not using ordinary care and couldn‘t recover
                   3. App ct upheld judgment- one judge said he can‘t recover because it was
                        his own fault- but that judge was wrong-it was P fault and D fault
         iv. Contributory was ―all or nothing‖- if P was in any way at fault, he could not
b.   Avoiding the Bar
           i. Several doctrines mitigated the harshness of the all or nothing rule of
              Contributory Negligence:
                   1. Last Clear Chance- because P own negligence, he was put in position
                        of hopeless peril-he couldn‘t avoid the situation, but the Δ has the
                        opportunity to use ordinary care/avoid the harm, and fails to do so
                             a. Exonerated the P of the contributory negligence and allows P
                                  to recover in full
                             b. Provided an out from contributory negligence. P recovered in
                                  full even if P was at fault
                   2. Contributory negligence was not a defense to intentional torts or to
                        willful and wanton misconduct
                             a. The rule was: P was not barred from recovery for contributory
                   3. Δ may have a duty to protect the P from the P‘s own carelessness
c.   Comparative Negligence
           i. All comparative negligence rules are aimed at avoiding the harshness of the
              contributory negligence doctrine, by reducing rather than barring the recovery of
              the negligent п.
          ii. The two basic types of Comparative Negligence rules are ―Pure‖ and
d.   Rule Choice:
           i. Pure comparative negligence allows some recovery so long as the P is not 100%
              at fault-almost all ct use Pure comparative negligence
          ii. Modified systems reinstate the total bar to recovery once the P‘s negligence
              exceeds some defined level, usually 50% or 51%.
                   1. If jury assigns the percentages as 51% to P and 49% to D, P gets
                        nothing- it is a total bar to recovery
                   2. Texas statute: P cannot recover if he is 51% or more responsible
        iii. Bradley case
                   1. Instruct the jury about how to proceed- because now we need to get
                        specific % for each party that is at fault- jury is told to state total or
                        gross amount of damages from each party entitled to recover-up to trial
                        judge to look at gross amounts awarded and figure out how much to
                        allocate to P.
                   2. Ct has to also decide how to fit comparative negligence in with all the
                        other rules in place- these can be extensive
                   3. Established a 50% bar
e.   Possible Affect on other Rules
           i. Joint and Several Liability- if Δ is 25% responsible, then he owes 25% of
          ii. Last Clear Chance- still available since they haven‘t removed the bar of
              contributory negligence. If jury thinks Δ had final opportunity, they will
              probably assign a higher % of fault to Δ
        iii. Assumption of the Risk- was a total bar to recovery- can it survive?
         iv. Multiple Tortfeasor cases
                   1. P can be more responsible than one D, but as long as he is not more
                        responsible with all of the D combined.

                       2.   P can recover the judgment against either D- or by the % (pursue them
               v. Settlement with some Δ before trial
                        1. If one D settles, but it is joint and several liability. Jury can still return
                            verdict saying that D was __% negligent, even though he settled. How
                            should ct enter judgment against D2? Dollar for Dollar credit- so if D1
                            paid 10K, and all D were 60% liable, then D2 owes 60K-10K=50K.
   If both sides are insured, you would enter judgment for both parties
   Both sides get the damages they are entitled to.
   If one party isn‘t insured, this becomes difficult
              vi. Texas Proportionate Responsibility
                        1. A claimant may not recover damages if his % of responsibility is
                            greater than 50%
                        2. % of responsibility- means that % attributed by the trier of fact…with
                            respect to causing/contributing to cause in any way, etc… personal
                            injury/death/etc…the jury is being told to assign to each party a %
                            representing how much that party‘s conduct attributed to the injury
                        3. Jury determines responsibility for each:
                                 a. Claimant-person seeking recovery of damages (п, counter-
                                 b. Δ (any person who the claimant seeks recovery of damages)
                                 c. Settling person (someone who paid or promised to pay money
                                      in consideration of the liability), and
                                 d. Responsible third party (any person who alleged to have
                                      caused/ contributed to causing harm for which recovery of
                                      damages is sought)
                        4. Designation of Responsible 3rd party- done by a Δ by filing a motion-
                            ask to add them as responsible 3rd party because they
                            caused/contributed to the harm
                                 a. What is responsible 3rd party status? Doesn‘t mean 3rd party
                                      is liable… so what are they? It eats up % of responsibility-
                                      these are individuals who are not actual parties to the case (not
                                      being sued for damages), so they are not liable.
                                 b. Jury can assign % of responsibility- the more parties Δ can
                                      use, the less the jury will assign to the parties that are apart of
                                      the case (so Δ % will be a lot less)
                                 c. Gives P opportunity to bring in the 3rd party and amend their
                                      case to bring them in
                        5. 33.013: Amount of Liability
                                 a. Δ is only responsible for however much % he is resonsible
                                 b. There is no joint and several liability in Texas, except under
                                 c. So if a Δ is found to be greater than 50% responsible, he is
                                      jointly and severally liable for the entire loss-that means there
                                      is only one possible D to be jointly and severally liable in that
                                 d. Most tort cases are governed by (a) and (b)= no joint and
                                      several liability unless Δ is found to be more than 50% at fault
    f. Assumption of the Risk
               i. Seat belt defense:
                        1. Problem: how to fit it in with the structure of tort law? It doesn‘t fit
                            with the usual defenses of damages/it didn‘t work as contributory
                            negligence. Failing to wear the seatbelt wasn‘t a proximate cause of the
                            accident- that is the problem
                        2. There are doctrine of voidable consequences: refers to steps that P
                            needs to take after accident occurred to limit the extent of the harm

                 a. Required that P receive medical treatment for his injuries
         3. Some jx, by statute, said it can‘t be considered→TX statute was
            phrased in a curious way: ct would not admit evidence of wearing/not
            wearing a seatbelt: but then changed it to let jury consider wearing the
            seatbelt in order to consider damages
        4. Ex: victim was a Johova witness: she refused to be operated on because
            of religious beliefs- she died from the injuries by the Δ. Can that bar
            recovery? It is unreasonable in spite of that- the P was barred from the
            wrongful death
ii. Express Assumption of the Risk
        1. Express assumption of the risk is a contractual agreement allocating
            certain risks to the potential P
        2. The scope of the release must be construed – who does it release?
        3. The Ct will examine the release to determine whether it offends public
                 a. Ex: in Texas, if you release the other party for their negligence,
                      the release has to explicitly say ―negligence‖
                 b. Ex: Wolf v Ford
                            i. P investing money into broker acct-Δ didn‘t need her
                                permission every time to do transactions- there was a
                                release that she signed: gave Δ authority, but
                                wouldn‘t hold him responsible unless if Δ was
                                grossly negligent
                           ii. Ct says that this falls on the side of the line to allow
                                parties to freely contract to the allocation of these
        4. Implied Assumption of the Risk
                 a. Implied assumption of the risk was once thought of as an
                      implied k to allocate certain risks to the P
                 b. It required a subjective awareness of the unreasonable nature
                      of the risk created by the Δ, plus conduct that showed a
                      voluntary decision to encounter the risk
                            i. Murphy
                                      1. Was it an unreasonably dangerous and P
                                          recognized that, but assumed the risk, or it is
                                          just really unreasonably dangerous? It is
                                          hard to figure out
                 c. Such conduct constituted consent to allow Δ to imposed risk
                      on the P
        5. Contributory Negligence Compared
                 a. If the п voluntarily encounters a risk known to be
                      unreasonable, is that really contributory negligence?
                 b. If the п voluntarily encounters a risk that is not unreasonable,
                      is that really a ―no negligence‖ situations for the Δ?
                 c. With the arrival of comparative negligence, cts had to decide
                      whether assumption of risk survived as a total bar to recovery?
                 d. The alternative was to treat it as a form of contributory
                      negligence that could be considered in assigning a percentage
                      of fault to the п
        6. Secondary Assumption of the Risk
                 a. Secondary assumption of risk occurs when the conduct of the
                      п consists in voluntarily encountering the unreasonable risk
                      created by the Δ
                 b. This is treated today as a form of comparative negligence

                                 i. If P voluntary reasonably encountered a risk, he
                                    should recover and that recovery should not be
             7.   Primary Assumption of the Risk
                      a. Primary Assumption of risk occurs when we determine that
                          the duty owed by the Δ to the п is limited, because the п is
                          deemed to accept certain risks
                      b. When the Δ meets the limited duty, the doctrine is a bar to
                          recovery because the Δ is not negligent
                                 i. Ex: Baseball stadium: when you go to the game, bats
                                    and balls fly around very fast and can hit people and
                                    injure them. P will lose because Δ has a very limited
                                    duty to protect п
                                ii. Ex: auto races- if precautions were taken to protect
                                    the spectators then there will be no liability
             8.   Knight-implied assumption of risk
                      a. Primary assumption of risk: scope of Δ duty is the primary
                      b. Victim wants: Injured victim‘s subjective understanding of the
                          risk involved in the game and which ones she actually accepts
                      c. Ct adopts duty analysis: question is what kind of duty of care
                          is imposed on people who are getting together and
                          participating in activities like this? Duty breached if conduct
                          so reckless as to be outside the range of normal activity in the
Final Exam
             1.   General recommendation: get a copy of the exam regulations that apply
                  and read them- there are extremely stringent regulations during the
             2.   ½ MC (45 Q) and ½ Essay- either one long essay or 2 shorter essays
                  (like 30 mins/60 mins). 90 mins for the essay and 90 mins for MC
             3.   Essay: pay attn to what the question asks you to do- either ―discuss‖ or
                  ―look at only claims between A and B‖ or whatever
             4.   MC will be similar to the midterm: multi-state bar review- fact pattern
                  with question after it
             5.   RES IPSA LOQUITUR is not on the exam!


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