Torts I - Bauman

Bauman Torts I Fall 2004

Outline



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

justification

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

possession.

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

substantial.

g. Can‘t use ―mistake/good faith‖ as a defense to trespass

3.) trespass to chattels

a. intentional act

b. Prima facie case:





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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

results.

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

compensation)

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

conversion.

d. Wiseman- tow truck case- conversion: is where you borrow and steal-

exercise the dominion- you don‘t have to intent to own it.





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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

results

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

e. HARMFUL OR OFFENSIVE CONTACT







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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)

iv.

v. Objective standard: reasonable person

vi. Passing by in a narrow space and gently touching them is not a

battery

II. Defense to intentional torts:

a. Consent: nonverbal consent counts

i. An objective manifestation of consent forcloses a claim that might otherwise

exist

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





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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

goods.

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.





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c. Breach of duty

i. The Standard of Care:

1. Δ is held to the standard of the reasonably prudent person under all the

circumstances

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

experience

3. The child standard usually applies to both child victims and child

tortfeasors

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





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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

harassment

4. What would a woman find as harassing since they are the target of the

conduct

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

standard.

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

profession

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





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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
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.





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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

ended.

b. One source of specific duties is a statute enacted by the

legislature, which specifies what the Δ must do in particular

situations.

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





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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

automobile

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

causation.

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

element.

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





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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

calculated?

g. Pure Last Chance:

i. Pure last chance equates the loss of chance with causation of

harm

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

exists.





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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

place.

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

foreseeable

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





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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

happen

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

site.

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





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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

wrongdoer.

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

liable.

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





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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

product.

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

product

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

situation.

4. These companies didn‘t get together- no common plan, no concert of

action

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

liability:

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

liability.

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-







15

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

tortfeasors

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

fault

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

reimbursement

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:





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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

another

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





17

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

die).

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.









18

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

coa

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

danger

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

case.

2. You can recover (MOM-in place of safety) if you meet these 3

requirements:

3. Was the bystander at the scene of the accident? Yes

4. Did the bystander witness the accident and the injury to the victim?

Yes

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









19

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

suggestions

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

person)

4. Don‘t categorize the P and then think you are done- the duty is another

step!

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









20

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

invitee.

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

contractor.

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

(vii).

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

precaution.

a. A duty of care is owed to children even if they are trespassers

if:

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

child

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









21

i. Drunk man-police came to arrest him, and in the

process of arresting drunk man, police man was

injured

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

licensee

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





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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
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.

precedent:

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









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2. Duty in Calf towards a licensee is more limited and restricted than

normal

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

things…

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

breached

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

both

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





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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

(misfeasance)

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?







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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,

siblings)

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

losses

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.





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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

recover

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

negligence

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

―Modified‖

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

damages

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.









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2. P can recover the judgment against either D- or by the % (pursue them

separately)

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-

claimant…)

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

(b):

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

case

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





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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?

How?

3. The Ct will examine the release to determine whether it offends public

policy

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

risks

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







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i. If P voluntary reasonably encountered a risk, he

should recover and that recovery should not be

reduced

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

question

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

sport

Final Exam

1. General recommendation: get a copy of the exam regulations that apply

and read them- there are extremely stringent regulations during the

exam

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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