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									                TORT OUTLINE BUSH FALL 2008

  I. Negligence and Strict Liability
         a. When should unintended injury result in liability?
                i. Hammontree v. Jenner
                       1. Facts: Jenner (D) had an epileptic seizure and lost consciousness
                           while driving his car. D’s car crashed into Hammontree’s (P) store.
                           D had had seizures in the past but had not had one in several years
                           and the DMV had issued him a license to drive. P pursued strict
                           liability damages rather than negligence. D argued that he was not
                           liable because he had taken all necessary precautions to prevent a
                           seizure and the accident was unforeseeable. At trial, the court
                           entered judgment in favor of D and P appealed on the grounds that
                           the court erred in not granting P’s motion for summary judgment
                           based on strict liability
                       2. Holding and Rule: The driver is only liable if the seizure is
                           foreseeable and he took no special actions to prevent it. The
                           standard for liability is essentially negligence. D did not have a
                           reason to expect to have a seizure and was therefore not liable.
                           Strict liability doesn’t apply to drivers.
                ii. Negligence – risk is greater than the cost of avoidance, where risk includes
                    all forseeable injury. For exam purposes always start with the did
                       1. Bolton v. Stone

                       2. Policy : Social Welfare – don’t unreasonably cause harm

               iii. Plaintiff needs to show: (show a standard of conduct and show that the D
                    didn’t meet it)
                       1. Did and Should of done

                       2. Risk of the did: the loss was a foreseeable harmful occurrences
                           and try to show that the probability (facts: i.e. lots of cars on the
                           road) of that risk was high.
                       3. Cost of avoidance was insignificant
               iv. Defendant needs to show:
                       1. Mirror Plaintiff’s argument
                       2. The risk of did was low – contradict facts and probability was low
                       3. Cost of Avoidance was high (i.e. expensive to get/install, can
                          endanger other people, etc.)

TORT OUTLINE BUSH FALL 2008                                                                Page 1
               TORT OUTLINE BUSH FALL 2008

        b. The Litigation Process
        c. The Parties and Vicarious Liability
  II. Negligence: Risk/Avoidance Analysis
        a. Historical Development of Fault Liability
                i. Tort Law and the Economy in Nineteenth Century America: A
               ii. Notes and Questions
              iii. Brown v. Kendall
                      1.   Man Poked In The Eye v. Man Breaking Up a Dog Fight With a Stick

                      2.   The plaintiff must prove as part of his case either that the intention
                           was unlawful or that the defendant was at fault in order to recover.

                      3. Rule: If the act was unintentional, and done in the doing of a lawful
                           act, then D is not liable.

                      4.   Ordinary care is the kind and degree of care that prudent and cautious
                           people would use, such as is required by the exigency of the case, and
                           such as is necessary to guard against probable danger.

                      5.   Plaintiff can’t recover if both P/D are using ordinary care, or if both
                           aren’t, or if P isn’t and D is.

              iv. Notes and Questions
        b. The Central Concept
                i. The Standard of Care
                      1. Adams v. Bullock
                               a.   12-Year Old Boy v. Trolley Line Operator; Cardozo

                               b.   One is not guilty of negligence when one fails to foresee the
                                    unusual and remote conduct of others.

                               c. Rule: Ordinary caution does not involve forethought of
                                    extraordinary peril.

                               d.   Negligence is the doing of something which a reasonably
                                    prudent person would not do, or the failure to do something
                                    that a reasonably prudent person would do, under
                                    circumstances similar to those shown by the evidence. It is the
                                    failure to use ordinary or reasonable care.

                               e.   No accident like that had happened before, and no custom had
                                    been ignored.

TORT OUTLINE BUSH FALL 2008                                                                  Page 2
               TORT OUTLINE BUSH FALL 2008

                      2. Notes and Questions
                      3. United States v. Carroll Towing Co.
                               a. The “Hand Formula” from Carroll Towing
                                        i.    B<PxL

                                        ii.   B = Burden (cost) of preventing accident

                                       iii.   P = Probability of accident occurring

                                       iv.    L = Liability (cost) of accident

                               b. Rule: Without a reasonable excuse, a barge owner’s failure to
                                    take reasonable steps to prevent damages should the barge
                                    break from her moorings is negligence

                               c.   BPL used. Since probability changes with place and time, it
                                    needs to be monitored with reasonable care.

                               d.   That said, the barge must not be the attendant’s prison, even
                                    though he lives aboard. He must go ashore at times.

                      4. Notes and Questions
  III.Negligence: Risk Avoidance Analysis and Reasonable Person Standard
        a. The Reasonable Person
               i. To establish you can use risk avoidance or a statute (cheaper)

        b. Qualification
               i. Youth - every jurisdicdtion has its own age rule
               ii. Age, experience, intelligence (10, naïve, stupid)
              iii. Physical Impairment but not mental impairment
              iv. Superior skill and training raises the standard
               v. A fact sensitive rule have to go to the jury
              vi. What would the reasonable person have done?
              vii. Bethel V. NYC Transit Authority
                      1.   Injured Bus Passenger – wheelchair seat v. Bus Company

                      2.   There is no level of degrees of care as a matter of law, only different
                           amounts of care as a matter of fact.

                      3. Rule: Common carriers have the same duty as anyone else:
                           reasonable care under all the circumstances of the particular case.

TORT OUTLINE BUSH FALL 2008                                                                 Page 3
               TORT OUTLINE BUSH FALL 2008

                      4.   Fictional person: the reasonable person of ordinary prudence.

                      5. Wood v. Groh (dangerous instrumentality),

                              a. accidentally shot by 15 year old who had opened
                                 father’s gun cabinet w/ screwdriver. Ammunition
                                 was also in cabinet

                              b. trial judge gave an ordinary negligence charge, jury
                                 found for D

                              c. P appealed on ground that D should have been held
                                 to highest degree of care

                              d. appeals court decided parents owed the highest
                                 duty to protect public from misuse of gun

             viii. Notes and Questions
  IV. Substitutes for R/A and Reasonable Person: Judge Made Rules and Custom
        a. Reasonable person
               i. Judge-made rules – constantly over turned
               ii. Business Practice/Custom – courts decided this is only evidence of a RPS,
                   b/c a RP would know about the Risk and cost of avoidance.
              iii. Statutory Rules – This works. There are 4 ½ conditions that have to be
                  met, or the statute is inadmissible. Plaintiff needs to prove all of these, if
                  the Defendant negagtes one of the m this statute is kept out.
                      1. Requirements:
                              a. The statute has to covers/regulates defendants conduct

                                       i. Regulates what the defendant was doing at the time,
                                          and it shows that legislative judgment is about our
                                          situation. (ex: using an elevator for construction )
                              b. The purpose of the statute has to be for safety/accident
                                       i. Ex: damage to life/limb not about morals/economy
                              c. The purpose of the statute is to prevent this type of accident
                                       i. This type of accident is in our target class/case i.e.
                                          falling material
                              d. The purpose of the statute is to protect this type of victim

TORT OUTLINE BUSH FALL 2008                                                                Page 4
              TORT OUTLINE BUSH FALL 2008

                                      i. I.e. a deliverer , worker
                              e. Defendant has no excuse for the violation
                                      i. Not that it was safer to violate it (Tedla) but the
                                         Excuse being that it was impossible to comply
                                         because of emergency circumstances (Bassey)
                    2. You can argue this from:
                              a. The statutory language itself (De Haen)
                              b. Legislative History – look at what they intended in the past

                              c. Public Record – newspapers, articles, etc.

                              d. Actual Effect/Impact - medical records, etc.

                    3. Cause in fact still required, which the defendant can still argue
                        (Martin) i.e. my bad conduct If there is an unexcused violation
                        then you negligence per se and don’t need the R/AV
                    4. If this statute is negated, then it is excluded, separate hearing
                       without a jury, plaintiff must argue Risk/Avoidance
                    5. Defendants complying does not equal due care, he still must
                       respond to Risk/Avoidance argument.
       b. The Roles of Judge and Jury
              i. In General
                    1. Baltimore & Ohio RR Co. v. Goodman
                              a. Goodman killed by one of Baltimore & Ohio R.R.’s
                                 (D) trains as he was driving across as railroad
                                 crossing. Goodman’s view of the crossing was
                                 blocked and he did not stop, look, or listen for
                                 approaching trains. Goodman’s widow (P) sued and
                                 D asked for a directed verdict on the grounds that
                                 Goodman’s death was the consequence of his own
                                 negligence. The trial court entered judgment in
                                 favor of P, the court of appeals affirmed, and D

                              b. A directed verdict should be entered against a
                                 party who has suffered injury because he failed to
                                 take reasonable precautions to guard against a
                                 known risk. The court held that Goodman was
                                 contributorily negligent for not stopping and

TORT OUTLINE BUSH FALL 2008                                                             Page 5
            TORT OUTLINE BUSH FALL 2008

                            looking. No reasonable jury could have found in
                            favor of P under these facts.

                       c.    Normally the question of due care is left to the
                            finder of fact but when the standard of conduct is
                            clear it should be laid by the courts.

                 2. Notes and Questions
                 3. Pokora v. Wabash RR Co.

                       a. The plaintiff carefully approached a
                          railroad crossing with an obstructed
                          view, but got hit anyway and sued the
                          railroad company for negligence. His
                          complaint was dismissed on the basis
                          that his conduct constituted contributory
                       b. The existing rule was that a driver must
                          stop, look, and listen, as well as get out
                          of his car and look around if necessary.
                          This Court limits the rule by saying that
                          this plaintiff had no such duty unless he
                          could have safely stopped such that he
                          could have gotten out and looked
                 4. Notes and Questions
                 5. Andrews v. United Airlines
                       a. Upon arrival of a United Airlines (D) flight at the
                          gate, a briefcase fell from the overhead
                          compartment seriously injuring Andrews (P).
                          Passengers were warned on arrival that items
                          stored in overhead bins may have shifted and that
                          passengers should use caution. Expert testimony
                          revealed that there had been 135 reported
                          incidents of items falling from overhead bins.
                          Andrews appealed the district court’s grant of
                          summary judgment in favor of United Airlines.

                       b. For the jury. Common carriers must use the best
                          precautions in practical use known to any company
                          exercising the utmost care and diligence in keeping

TORT OUTLINE BUSH FALL 2008                                              Page 6
               TORT OUTLINE BUSH FALL 2008

                                    abreast with modern improvements in such
                                    precautions. Many jurors have been airline
                                    passengers and are equipped to decide if D should
                                    have done more to warn the passengers. Summary
                                    judgment was not appropriate.

                      6. Notes and Questions
               ii. The Role of Custom
                      1. Trimarco v. Klein
                               a.   Tenant Fell Through Shower Door v. Landlord

                               b.   Custom and usage may be used to prove that one charged
                                    with negligence has fallen below the required standard.

                               c. Rule: If a common practice or customary usage is reasonable
                                    but ignored, and ignoring it is a proximate cause of the
                                    accident, then there is negligence.

                               d.   What usually is done may be evidence of what ought to be
                                    done, but what ought to be done is fixed by a standard of
                                    reasonable prudence, whether it usually is complied with or

                      2. Notes and Questions
  V. Substitutes for R/A and Reasonable Person: Statutory Rules/Neg. Per Se
        a. The Role of Statues
               i. Martin v. Herzog – “Negligence Per Se”

                      1. If your conduct violates a statutory command you are negligent if
                         you violate the 4 ½ requirements.
                      2. Rule: Ignoring a statute is negligence per se.
                      3.   To omit safeguards prescribed by law for the benefit of another’s
                           safety is to fall short of the standard of diligence to which those who
                           live in organized society are under a duty to conform.

               ii. Notes and Questions
              iii. Tedla v. Ellman
                      1.   Injured Carriage-Pushing Pedestrians v. Car Driver

                      2.   Violation of a statute is not automatically considered negligence if
                           there is a good reason to depart from observing the statute.

TORT OUTLINE BUSH FALL 2008                                                                 Page 7
                TORT OUTLINE BUSH FALL 2008

                      3. Rule: The general duty is established by statute, and deviation from it
                           without good cause is a wrong and the wrongdoer is responsible for
                           the damages resulting from his wrong.

                      4.   Must also look to legislative intent of the statute.

               iv. Notes and Questions
  VI. Proof of Negligence: Res Ipsa Loquitur
        a. Proof of Negligence
                i. Elements:
                      1. The accident is a type of accident that normally involves
                         negligence, or that doesn’t occur normally without negligence.
                               a. i.e. prior cases (McDougal v. Perry) have proved this type
                                  of accident RIL or by creating scenarios and showing
                                  which one is more likely.
                      2. The instrumentality of the harm was in the control of the
                           defendant which is the hardest one to prove.
                               a. Control/responsible for the acts of all others, who has the
                                  most frequent contact with it? Problem is when the
                                  instrument passes through the hands of multiple controllers.
                      3. Victim had nothing to do with it i.e. no the controller.

               ii. RIL only always the case to get to a jury, doesn’t guarantee negligence
               iii. Defendant response:
                      1. Try and defeat on of the three elements
                      2. Prove everything they did was with due care and careful
                      3. Hard to rebut the case which is why RIL is so powerful.
               iv. Evidence of Past Bad Acts is inadmissible. You cannot prove what they
                   have done today, by bringing evidence that happened in the past.
               v. RIL should be used when you not sure of a specific bad act and especially
                   when you have no other way to prove negligence. And you can use it with
                   other methods.
               vi. Wolf v. Kauffman

                      1. Defendant didn’t have a light on a stairway in an apartment
                         building. Should have had a light on, even had a statute.
TORT OUTLINE BUSH FALL 2008                                                             Page 8
            TORT OUTLINE BUSH FALL 2008

                   2. Plaintiff needs to show that darkness caused the fall:
                   3. A jury verdict would be based on nothing – eyewitness and
                      circumstantial evidence will get you to a jury.
           vii. Reynolds – Didn’t have a rail, should have had a rail

          viii. Ingersoll v. Liberty Bank of Buffalo
                   1. Stairs were not kept up to par -> Plaintiff dies,
           ix. Negri v. Stop and Shop
                   1. slipped and hit her head on the floor in a Stop and Shop
                      (D) grocery store. There were broken jars of “dirty and
                      messy” baby food nearby. A witness had not heard any
                      jars break in that area for approximately twenty minutes
                      before the accident and the aisle had not been cleaned
                      for one or two hours. The trial court found in favor of P
                      and D appealed. On appeal, the Appellate Division
                      reversed in favor of D and P appealed.

                   2. The circumstantial evidence presented enabled P to
                      establish a prima facie case that the store had
                      constructive notice of the hazardous condition. The
                      evidence was sufficient to withstand summary judgment
                      in favor of D and it was error to dismiss the complaint. A
                      store has a duty to protect invitees from known or
                      concealed dangerous conditions. The circumstantial
                      evidence permitted the inference that D had constructive
                      notice of the dangerous condition of the floor.

            x. Gordon v. American Museum of Natural History
                   1. P slipped on pretzel wrapper on the outside steps of the
                      museum, claimed that D should have had constructive
                      notice like in Negri.

                   2. Ct. Disagreed because it was outside. Why should they
                      have constructive notice out on the steps where anything
                      can be blown in by the wind instantly and with no
                      warning. Ct. found for D

           xi. Notes and Questions
           xii. Byrne v. Boadle
                   1.   Injured Pedestrian From Flour Barrel v. Flour Shop

                   2.   Negligence can arise from the fact of an accident

TORT OUTLINE BUSH FALL 2008                                                       Page 9
               TORT OUTLINE BUSH FALL 2008

                      3. Rule: If a person is injured by something falling on him, the accident
                           alone is prima facie evidence of negligence, supporting RIL.

                      4.   When you are surprised with an unforeseen accident, you are not
                           bound to show that the accident could not have happened without
                           negligence, but rather, it is for the defendant to produce facts
                           disproving negligence.

             xiii. Notes and Questions
             xiv. McDougald v. Perry

                      1. The plaintiff was driving behind a tractor-
                         trailer driven by the defendant when its spare
                         tire came off and hit the plaintiff’s
                         windshield. The plaintiff sued and won at
                         trial when the judge instructed the jury on res
                         ipsa loquitor. The defendant appealed and
                         had the judgment overturned. Then the
                         plaintiff appealed.
                      2. Res ipsa loquitor applies when (1) the thing
                         that caused the injury was in the exclusive
                         control of the defendant, and (2) the accident
                         wouldn’t have happened without someone
                         being negligent.
                      3. The court finds that the spare tire coming loose is the sort
                         of accident that can only be caused by negligence and
                         that the person who was in charge of keeping the spare
                         tire from flying off was the defendant.
              xv. Notes and Questions
             xvi. Defenses for Res Ipsa
                      1. Challenge one of the three conditions (best to do) - show not the
                         kind of accident that normally invovles accidents (usually happens
                         w/o neg), there were multiple controllers (best way to defend) with
                         no exclusive control.
                      2. Rebut the Res ipsa by coming forward and saying look how careful
                         I was.
  VII. Causation in Fact: Concepts; Evidence/Proof Standards

TORT OUTLINE BUSH FALL 2008                                                               Page 10
                       TORT OUTLINE BUSH FALL 2008

               a. Burden of Proof
                        i. On the plaintiff
                       ii. Has to prove a preponderance of the evidence (50% or higher)
               b. Cause in Fact = but for

                        i. Basic Doctrine
                               1. Stubbs v. City of Rochester
                                        a. FACTS: Stubbs claims he got sick from drinking public
                                            water. Plaintiff presented witnesses (some experts),
                                            documentary evidence (sample of water, report of sample),
                                            circumstantial witness (57 people claim they drank water
                                            and also got typhoid ), Statistical evidence: shows statistics
                                            show that there was an odd increase in typhoid cases.
                                            Epidemiological evidence (stats show increase in disease),
                                            all the cases occurred around the same time, a 1/3 of them
                                            were in the same district.
                                                i. After plaintiff finished his case, he moved for a non
                                                   suit (i.e. a directed verdict) at the close of the
                                                   plaintiff’s case. Don’t dispute evidence at all.
                                                   Defendant didn’t want this case to go to the jury,
                                                   b/c this jury might find for the plaintiff. So the
                                                   defendant moved for this verdict on the basis of
                                                   insufficient evidence to get to the jury.
                                                ii. Reasonable Possibility (30%), would the jury be a
                                                    reasonable jury if they found in favor for the
                               2. Notes and Questions
        VIII. Causation: Statistical Evidence
               a. Zuchowitz v. United States
 i.          Cause In Fact may be inferred where the plaintiff’s injury is one of the core risks created by the
      defendant’s negligence.
 ii.         Rule: If the defendant’s conduct is negligent and creates the likelihood of the plaintiff’s harm,
      then causation can be reasonably inferred.
 iii.        When a negative side effect is demonstrated to be the result of a drug, and the drug was
      wrongfully prescribed in an unapproved and excessive dosage, the plaintiff has generally shown enough
      to permit the finder of fact to conclude that the excessive dosage was a substantial factor in producing
iv.          Cites Cardozo and Traynor for modern theory of causal uncertainty: if (a) a negligent act was
      deemed wrongful because that act increased the chances that a particular type of accident would occur,

      TORT OUTLINE BUSH FALL 2008                                                                  Page 11
                      TORT OUTLINE BUSH FALL 2008

   and (b) a mishap of that very sort did happen, this was enough to support a finding by the trier of fact
   that the negligent behavior caused the harm. Where such a strong causal link exists, it is up to the
   negligent party to bring in evidence denying but for cause and suggesting that in the actual case the
   wrongful conduct had not been a substantial factor.
v.         An allowable inference does not mean that the plaintiff is relieved of proving causation by a
   preponderance of the evidence.
                     vi. She was given double the amount of dosage, of Danocrine, which
                         eventually killed her
                    vii. First question to decide: Does Danocrine cause PBH? There was a lot of
                         things that could have caused it, but they were ruled out.
                   viii. They didn’t just have to show that it was danocrine that caused it, but also
                         the overdose. The negligence was the overdose. If they had some
                         epidemiological study is what would be good, but 348 there were no
                         formal studies of excess doses of this drug, b/c there wasn’t a large enough
                         sample, so they couldn’t get one
              b. Guidelines:
                      i. 3 rules:

                              1. Quality of evidence  if your evidence has high quality it will
                                       a. Eye witness, physical (documentary) evidence

                              2. Effort Ratio  Plaintiff has to do something to show effort. Show
                                    court that you really tried to find evidence.

                              3. Common Sense Statistical Evidence (Appealing generalization)
                                    common sense statistical argument that allows a case to go to the
                                    jury. Imagine a statistical study that has never taken place.
                                    Something that everyone knows.
                                       a. sobachinsky case, - don’t light stairs ITS PROBABLE that
                                          someone is gonna fall, its probably due to the dark and not
                                          some other cause.
                                       b.    Zuchowicz case, - overdose ITS PROBABLE that
                                            someone would get sick, its usually b/c of the drug and not
                                            something else. (p.347)
                                       c. Reynolds case (handout)) - don’t have railing ITS
                                          PROBABLE that someone would fall
                      ii. Problem with that evidence:

                              1. Admissibility of that evidence  p. 350

 TORT OUTLINE BUSH FALL 2008                                                                     Page 12
                       TORT OUTLINE BUSH FALL 2008

                                     a. Zuchowicz: Expert witness problem had to deal with
                                     b. Daubert rule
  i.      Based on Federal Rule of Evidence 702
 ii.      A witness may testify.
iii.      More easily satisfied standard of qualification.
iv.       If specialized knowledge will assist to understand the evidence, a witness qualified as an expert
   may testify.
v.        The information being offered must have a level of acceptability within the scientific community.
                              2. Statistics very powerful, b/c of their numbers, can be misleading
                                 and carry more weight than they deserve. They have 2 problems:
                                     a. They can mislead
                                     b. We use a certainty about what is generally the cause, in this
                                        individual case. Allows us to drop from a conclusion about
                                        a group to an individual.
                                     c. Don’t say what happens in this case, just what usually
                                     d. Put individual cases into groups, so then you make
                                        assumptions. We don’t know to which group this particular
                                        person belongs to in a statistical evidence that shows that
                                        750 died from medication and 250 from something else.
               c. Notes and Questions
         IX. Causation: Special Rules
               a. Alberts v. Schultz – Medical malpractice

                       i. They didn’t do the right test at the right time that would have saved him,
                          the result he lost his leg no matter what he did.
                              1. Evidence that he would have lost his leg no matter what:
                                     a. Evidence of causation:
                                              i. Evidence wasn’t good, b/c they had incomplete
                                                 records but we know that with proper treatment in
                                                 this type of case, 40% of people keep their leg.
                      ii. They give him 40% of his injury but if you prove your case by
                          preponderance you get 100% (individual)
                      iii. Lost Chance Rule: Rule of Recovery to Proportional to Proof (if all you
                          have is statistical evidence)

       TORT OUTLINE BUSH FALL 2008                                                             Page 13
                     TORT OUTLINE BUSH FALL 2008

1.       Not used outside of medical malpractice.
2.       Relies on probability, not an actual outcome.
3.       Instead of trying for negligence on the lost leg, which may well have happened anyway, the lost
chance   remedy lets you try for negligence under having been robbed of the chance to try and save it.
                             4. Only need statistical evidence
                             5. We are going to accept stat evidence, but we understand the
                                  over/under comp that results from this type of evidence and we
                                  know that he can’t bring any other evidence. We are going to
                                  allow pure stat evidence we are not going to use preponderance
                                  standard. You can recover a statistical portion to the degree of the
                                  likelihood of causation that you showed. Recover damages
                                  proportional to you damages.
                                      a. Deterrence is perfect, but victims can be over/under comp.
                    iv. Alberts has a solution to purely stat evidence…we accept it but we don’t
                        grant full recovery. Doesn’t apply anywhere else except in medical
                        malpractice torts.
                             1. Only when they prove less than 50%.
                             2. And only in medical malpractice case.
             b. Notes and Questions
             c. Introduction to Joint and Several Liability
                     i.   Not suitable for large numbers of defendants, because the probability that any
                          one of them caused the injury decreases with the increase in defendants.

             d. Multiple Defendants
                     i. Summers v. Tice
                             1. Unusual fact: One of these defendants was the one who definitely
                                caused this injury…so we are 100% sure where this injury came
                             2.   The plaintiff is relieved of the burden of proving causation when there
                                  are multiple defendants, only one of which caused the injury, but it is
                                  impossible to prove who was the cause in fact.

3.     Rule: Where multiple defendants have acted negligently and it cannot be determined which
defendant caused the injury, even though only one of the negligent acts caused the injury, the
defendants have the burden of disproving causation.
                             4. Problem: The most he can prove for either one is only 50% which
                                is less than preponderance. There is a 50% chance that either one
                                caused the injury. No connection to the bullet and what shotgun it
                                came out of. No way to prove causation under the normal rules.

TORT OUTLINE BUSH FALL 2008                                                                     Page 14
                    TORT OUTLINE BUSH FALL 2008

                            5. Jointly and separately liable (new rule)– all are liable for 100% of
                               the harm, but plaintiff can’t collect more than 100% of the
                               damages. Sue 1, and they go to collect it from the other.
                                    a. Liability can also be just joint and just liable. Decide how
                                       to split it up. definitely going to charge responsible party
                                       50%, and non responsible party 50%
                    ii. Notes and Questions
                   iii. Hymowitz v. Eli Lilly & Co.
1.      Market Share may be used as causation where the plaintiff was injured by a product when
determination of the actual manufacturer is not possible.
2.      Rule: If the plaintiff cannot prove which of multiple entities caused his injury, but can show that
all produced a version of the defective product, then all the defendants will be held liable in according to
their market share at the time of the injury.
3.      Pro: Provide for relief when the circumstances make it impossible to prove who actually caused
the harm.
4.      Con: Liability is predicated on the risk imposed and not the actual causation.
                            5. Fact pattern:
                                    a. Like Zuckohwitz, drug, for very positive reasons, all made
                                       from the same ingredients.
                                    b. Negligence: they DID NOT test it properly
                                        (intergeneratiationally, i.e. the effects on the pregnant
                                        women’s children/grand children) didn’t test beyond 1st
                            6. Not a causation problem. Problem: this happened 25 years ago
                            7. Summers and tice can’t be used. When you increase the number of
                               parties you decrease the likelihood that anyone of them was the
                               cause. If 3, then only a 1/3, if 10 defendants it’s 1/10.
                                    a. If we were gonna use summers and tice one company
                                       would pay 100% even tho it was a 90% it wasn’t them.
                   iv. Rules of SvT Conditions: liability on a group, the toxic leak hypothetical
                       it was liability to a group
                            1. 2 or more. Must have been one, but can't tell which 50/50 chance
                               it was either of them
                            2. All negligent
                            3. All possible causes have been joined/sued (most important part)
                            4. Plaintiff is innocent
TORT OUTLINE BUSH FALL 2008                                                                     Page 15
              TORT OUTLINE BUSH FALL 2008

                              a. If you prove all of these conditions you show cause in fact
                              b. If they are found guilty, plaintiff can collect 100% from
                                 any one of the defendant. This rule hangs an innocent one
                                 to make sure they also hang the guilty one.
                              c. Watch for how many people you have, the more you have
                                 more uncomfortable they get using this rule
             v. Concert of action: don’t need all the defendants in court, just one b/c they
                are all involved and liable even if not present. Elements:
                      1. All together
                      2. In a joint activity - They participated in a way that promoted each
                         other's negligence. Needs mutual encouragement… at the very
                         least, doesn't have to be active there can be tacit encouragement,
                         i.e. I won't tell anyone if you don't tell anyone
             vi. Notes and Questions
       e. The Special Case of Toxic Harms
              i. If you just relied on preponderance no one would ever recover.
             ii. You can't sue 200 companies, b/c it would unfair to hold one company
                 100% liable when there is a small % that they caused the harm. The use
                 the Concert of Action rule (sindell say's you can't use it) - you sue the
                 entity, not a group.
             iii. enterprise liability: (industry wide liability)
                      1. A special application of the concert of action rule
                              a. All negligent in the same way
                              b. Jointly, they met together how to design it and shit.
                              c. They found that drug co's were engaging in parallel bad
                                 conduct (they were doing bad conduct, just not together)
             iv. Give recovery proportional to proof (Market Share Liability) (under 50%).
                 When you can’t use Summers b/c too many people are involved or some
                 can’t be sued. Can’t use Concert of Action b/c they weren’t involved
                 together. This is usually used against producers. Only use against
                 fungible products that can’t be traced to a certain manufacture.
                      1. Only need statistical evidence
                      2. No joint and separately liable.
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                     3. The liability is several in proportion
                     4. Each defendant is going to pay a share of the plaintiff's damages
                        proportional to how much product they marketed.
                     5. What is achieved: is almost perfect deterrence.
                     6. Based on the statistics (share of the market that is had)
              v. Conditions of Market Share Liability: rejected by half the states b/c want
                 perfect justice and want victim to recover 100%
                     1. Several, many, possible cause but must have been someone in this
                     2. It is impossible to identify (fungibility, no distinguishing
                        characteristics, can't be identified)
                     3. Plaintiff is innocent
                     4. If you have to sue a substantial share of the market producers -->
                        you have to sue a number of manufactures whose total share is a
                        substantial portion of the market…sue more than 50% of the
                     5. All possible causes are negligent
                     6. All pay according to their market share
                             a. Sindell version: How to prove that it couldn't have been
                                     i. Can say it couldn't have been our pills because we
                                        havent started, or stopped by then.
                                    ii. The Defendant took red pills, we make blue pills
                             b. Hymowitz: (unless rule) (NY adopts this - so that victims
                                recover more) Doesn’t matter if it couldn’t have been you.
                                Can't live with the idea, that a person hurt doesn't recover
                                full compensation
             vi. Environmental Liability and the Tort System
            vii. Notes and Questions
       f. Ybarra v. Spangard - Res ipsa loquitor case

              i. Don’t know what caused the injury. Have a causation and negligence
                 problem. Trying to bring everyone into the law suit
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                       ii. Shifting burden of proof:
                                1. All are negligent till they come forward
                                2. Burden of proof on Defendants
                                3. Never been applied outside of medical mal practice cases.
                       iii. Consorted action – joint activity based on joint encouragement in a
                            negligent activity. Everyone knows its negligent (not in summers and
                            tice) since they are individuals they get off the hook.
               g. Notes and Questions
               h. The Special Case of Medical Malpractice
         X. Proximate Cause: UF Intervening Cause
               a. Proximate Cause
  i.          Proximate cause is the relationship between A and the resulting injury.
 ii.          It is foreseeable that if Dalton holds class too long, it will affect student’s performance in the
      next class, for arriving late. It is not foreseeable that if Dalton holds class too long, a student will go
      out, and get into a car accident that he would not have gotten in five minutes prior, had Dalton let the
      class out on time. Have to prove but-for as well as foreseeable in order to have proximate cause.
 iii.         The possibilities for liability in situations like these led courts to require that there be some
      proximity (proximate cause) b/t D’s negligence and P’s injury. Courts use a number of terms to discuss
      proximate cause: foreseeability, scope of risk, likelihood, etc. While it is generally accepted that some
      form of proximate cause is required today, it was not always so.
iv.           Forseeability is the casual link: D’s action must be extremely close in time and space to the
                        v. Defense argument, but plaintiff needs to prove it
                       vi. Superseding Causes
                                1. Doe v. Manheimer
                                        a. The landowner had a very large bush, and a person raped
                                           someone. The rapee sued the landowner for not having the
                                           bush properly trimmed, and in fact aiding in the rape.
                                        b. RULE: Reckless behavior will not get you off the hook, if
                                           it is reasonable that it might happen.
                                2. Notes and questions
               b. Defense arguments
                        i. Intervening Clause - Breaks the chain between defendant's act and
                            plaintiffs harm. The act of the intervener must be reckless or worse…i.e
                            worse than negligent

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                       1. The behavior must be RECKLESS and UNFORESEEABLE
               ii. Unforeseeable type of harm - If type of harm that results is unforseeable.
                   That a reasonable person can assume from this that something would
              iii. Argument of Proximate cause - I was not a proximate cause of your injury.
                   2 versions:
                       1. Some 3 party involved. Intervening clause.
                       2. Something that was unforeseeable
              iv. Issue of Duty - I had no duty to you
        c. Plaintiff case
                i. Duty
               ii. Breach
              iii. Cause in fact
              iv. Proximate cause
               v. Damages
  XI. Proximate Cause: UF Harm
        a. Unexpected Harm
                i. McLaughlin v. Mine Safety Appliances Co.
                       1. DID: did not provide good warning. Made it look like it was
                          insulated when it wasn't.
                       2. SHOULD HAVE DONE: Could have had a big warning that said
                          do not use without wrap (Engrave into the flock coded block) the
                          warning was there but it was on the box. Put insulation around the
                       3. What is the Defendant's argument:
                              a. Block goes into the hands of Fireman Traxler
                              b. Hands it to the Nurse, and she is one who puts it on the
                                 plaintiff's body. (2 people who intervene between the
                       4. Who claims there was a trial error?

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                          a. Trial Judge's error was focused juries attention on the
                             behavior of the Nurse (told jury that if she didn't know then
                             defendant is guilty)
                          b. Judgment for the plaintiff affirmed by the appellate
                             division. Plaintiff wins, appellate court says that this
                             judgment has to be reversed and go back for a new trial.
                             Appellate court said you should have focused attention on
                             the fireman.
            ii. Benn v. Thomas
                   1. Expecting to cause only a little harm, and you end up causing a
                      enormous amount of harm doesn’t get you off the hook. Even if
                      the injury wasn’t expected.
                   2. The conduct of a party is a proximate cause of the
                      damage when it is a substantial factor in producing the
                      damage and when the damage would not have happened
                      except for the conduct.

           iii. Steinhauser
           iv. Notes and Questions
            v. In re an Arbitration Between Polemis and Another and Furness, Withy &
               Co., Ltd.

                   1.   The plaintiffs’ boat was destroyed and they
                        sued the defendants for the entire value of
                        the boat. The defendants claimed that the
                        damages were too remote to be foreseeable
                        and thus that the defendants were not the
                        proximate cause of the damages. The
                        arbitrators found that the plaintiff’s ship was
                        destroyed by fire, that the fire was caused by
                        a spark igniting gasoline vapor, and that in
                        turn the spark was caused by a falling board.
                        The arbitrators found that damage of this
                        magnitude was not reasonably foreseeable,
                        though the falling board was the result of the
                        defendants’ negligence and at least some
                        damage was foreseeable. The arbitrators
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                                   awarded heavy damages to the plaintiffs.
                                   The defendants appealed
                              2. As long as there is a natural connection, which is unbroken,
                                 unforeseeability is irrelevant. Only relevant to see if intervening
                                 clause is sufficient.
                              3.   Once an act is negligent, the fact that its exact operation was not
                                   foreseen is immaterial.

                              4. Rule: The consequences which may reasonably be expected to result
                                   from a particular act are material only in reference to the question of
                                   whether the act is or is not a negligent act.

                              5. The defendants will only be held responsible
                                 for the proximate (i.e. not too remote) results
                                 of their negligence.
vi.       Notes and Questions
                     vii. Overseas Tankship (U.K.) Ltd. V. Morts Dock & Engineering Co., Ltd.
                          (The Wagon Mound)
                              1. A ship spills oil and the oil is left behind when the ship takes off.
                                   The garbage floats to the dock and somehow the oil catches on fire
                                   and burns down the dock. The dock owner sues the oil spiller.
                              2. Oil spiller says even though they were negligence, they shouldn’t
                                 be liable because it was unforeseeable that this oil could catch on
                                 fire. What was expected was that the dock would get clogged up,
                                 but instead it burned down. So there were:
                                       a. Unforeseeable extent and type of damages
                              3. Court says Polemis is no longer good law. The damage has to be
                                 of such a kind that a reasonable person would foresee it.
   4.      RULE: A defendant is liable only for the foreseeable consequences of their negligent conduct. A
   defendant is liable for only those consequences of his conduct that are reasonably foreseeable at the
   time he acts. Those consequences of a defendant’s conduct that are natural (direct) and probable are
                              5. Unforeseeable type of occurrence argument:
                                       a. Particular accident is Unforeseeable per se. In wagonman,
                                          get an expert in there to say it is impossible/unforeseeable.
                                       b. It is a different type of occurrence from the other
                                          foreseeable occurrence that are in the foreseeable type

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                                        arrogant. This is the tough part. Occurrence not only
                                        different but came from a different source.
                                             i. The occurrence, not the harm, is the result of a
                                                different type of risk which comes from different
                                                threatening forces then the risks in the foreseeable
                                                risk arrogant.
                                            ii. Would the same constrains that are effective for the
                                                foreseeable automatically eliminate it? If it does its
                                                not unforeseeable.
                                    c. Cork Snark Test:
                                             i. Imagine a safety precaution that would constrain the
                                                foreseeable dangerous forces. If this precaution
                                                would nevertheless have not helped, then you are
                                                not liable. If it is different, not subject to the same
                                                constraints. Show that it is 2 different types of
                                                forces and therefore a different type of occurrence.
                  viii. Thin Skull - The defendant takes the victim (the plaintiff) as he or
                        she finds him or her

                   ix. Friendly
                            1. Defendants are expected and required to protect against the
                               dangerous forces inherent in what they are doing or the material
                               they are using.
                    x. Notes and Questions
     XII.   Proximate Cause: UF Victim
            a. Unexpected Victim
                    i. Palsgraf v. Long Island Railroad Co.
1.      A defendant is only liable for damages to a plaintiff to whom he foreseeably owes the duty of
2.       Rule: A defendant only owes a duty of care to those who are in the reasonably foreseeable
zone of danger.
3.       Cardozo View: the second P can recover only if she can establish that a reasonable person
would have foreseen a risk of injury to her in the circumstances, i.e. that she was located in a
foreseeable zone of danger.
4.       Before negligence of the defendant can be determined, it must be found that the defendant
owed a duty of care to the plaintiff, and that the defendant could have avoided the injury to the plaintiff
had he observed this duty.
5.       Andrews Dissent: Every plaintiff is a foreseeable plaintiff, regardless of how near or far, or
foreseeable. Basically, a defendant owes a duty of care to anyone who suffers injuries as a proximate
result of his breach of duty to someone.

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                           6. A man was trying to jump into a RR, one guard was holding the
                              door the other guard was trying to help push him in.
                           7. The negligence is that he shoved the guy from behind, when they
                              should have stopped the train
                           8. Adds a 3rd rule for no proximate cause: the victim is an
                               unforeseeable victim, then there is no proximate cause. The other
                               two are super sceeding intervening clause and unforeseeable
                           9. Judge Andrews - (cardozo wrong on result/reasoning) everyone
                              owes a duty to the world at large not to do dangerous things. Duty
                              defined to everyone in the world, need to draw a line somewhere
                              (p. 431-432) you won't be crushed by an economic burden - real
                              reason for no proximate cause of this kind. If it didn't it would be
                              over detterence no such thing as a reasonable risk, b/c the D can be
                              kept brought into court.
                   ii. Notes and Questions
   XIII. Duty: Affirmative Conduct and Special Relationship
           a. Introduction
                    i. No duty argument: Most powerful Defense, even though I may have been
                       negligent and a cause in fact it doesn’t matter because I had no duty to act.
                       This is done at the outset of a case to avoid going to a jury.
                           1. No Feasance (no risk increasing behavior): Judge Andrews and
           b. Affirmative Obligations to Act
                    i. Harper v. Herman
                           1. No duty to come to the aid of another
2.      Boat owner has no duty to warn guests when the water around the boat is too shallow to dive
3.      Superior knowledge of a dangerous condition by itself, in the absence of a duty to provide
protection, is insufficient to establish liability in negligence.
4.      Rule: A boat owner hosting a social gathering on his boat is under no legal duty to warn his
guests that the water is too shallow for diving because the boat owner’s relationship with his guests
does not fall into one of the discrete categories that have been acknowledged as giving rise to such a
                   ii. Notes and Questions
                  iii. Farwell v. Keaton

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                   1. A non feasance argument.
                   2. Plaintiff needs to show that a defendant created a new risk and
                        didn’t manage it. Either directly or indirectly by getting other
                        people to behave in a way that they would not have behaved…i.e.
                        they don’t go save the kid, b/c you are there and acting like you
                        will or via an broken promise.
                   3.   Father of Dead Friend v. Friend Who Left Him

                   4.   Friends spending time together socially are required to come to each
                        other’s aid in an emergency.

                   5. Rule: When an individual comes to the aid of another, he is subject to
                        the duty to take no action that would leave the victim worse off than
                        before; and friends spending time together socially are under an
                        affirmative obligation to come to each other’s aid in an emergency.

                   6. Every person is subject to the legal duty to avoid any affirmative
                        actions that could worsen a situation involving a person in distress

                   7.   If a person helps another, then he is required to act as a reasonable

           iv. Notes and Questions
            v. Tarasoff v. Regents of the University of California
                   1. Sue Dr. Moore is sued b/c a patient of his had talked about killing
                      a specific person and he actually did it.
                   2. Court says the birth of risk occurs not through a specific act of
                      conduct, there was the initiation of a relationship of 1 of 2 kinds
                      (control or protection)
                            a. Control: When you take someone under you control, you
                                remove others from that scene and other can't protect
                                themselves b/c they rely on you (like a detrimental alliance
                                argument) only act is the initiation of the type of
                                relationship. Between the Defendant and a 3rd party injurer.
                                Such as the Warden’s, teachers, parents, etc. Factors:
                                    i. What would that person (warden, teacher, etc)
                                       normally do? Do they recognize the need for
                                    ii. Does the controller have the actual ability to
                                        exercise control over the other party (ex:
                                        quarantining a sick person)

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                                  iii. Does the controller usually control the other person
                                       and does the submissive person actually submit to
                                       and follow the directions and control of the
                            b. Protection – between the defendant and victim. Harper v.
                               Herman – no special relationship between a social host and
                               a guest, b/c no precedent. Kline v. 1500 Massachusetts
                               Ave – detrimental alliance (you assume that you are renting
                               a place that is safe from someone else, give up self
                               protective ability). Other cases doctor/patient,
                               student/school, parent/child, buses/passengers. Factors:
                                   i. Does protector recognizes the need for protection
                                       i.e. do teachers recognize who the weaker students
                                       are who needs protection
                                   ii. Does the protector have the ability to exercise
                                       protective power
                                  iii. Does the weaker party surrender self protective
                                       power and rely on the protectors guarding wings
             vi. Pulka v. Edelman (non feasance argument fails to work)
                    1. Pedestrian struck by car exiting a parking garage, which has a exit
                       ramp across the sidewalk. P sues garage owner, and the garage
                       owner claims that he didn’t do anything to him.
                    2. He assumed risk by putting the garage up when it opened for
                       business before that date there were no car’s going across that
                       sidewalk. Have to be able to point in time when they increased the
                       behavior, always want to be able to point at the moment that a risk
                       is made.
            vii. Notes and Questions
       c. The Duty of Landowners and Occupiers
              i. Posecai v. Wal-Mart Stores, Inc.
                    1. Involves a merchant and customer, customer gets assaulted in the
                       parking lot and wants to sue for lack of protection. This case would
                       have to be a Kline protection type.
                    2. Policy for not suing them in court? Negative aggregate impact.
                       The communities that need them the most won’t get there low
                       prices (high crime low income areas) and you don’t want to

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                           encourage private employers to use their own security force and
                           not the police.
                      3. Rule: Businesses have the duty to exercise reasonable care to protect
                           their patrons from the reasonably foreseeable criminal actions of third

                      4.   Foreseeability

                               a.   Specific Harm: Duty exists only when the possessor is aware
                                    of the specific, imminent harm about to occur.

                               b.   Similar Incidents: Plaintiff can establish foreseeability by
                                    presenting evidence of similar crimes on or near the property.

                               c.   Totality of the Circumstances: Considers similar incidents,
                                    including the nature, condition, and location of the land, the
                                    level of the crime in the surrounding area, and any other
                                    relevant factual circumstances that might bear on

                               d.   Balancing Test: Weigh the foreseeability and gravity of harm
                                    against the burden imposed on business to protect its
                                    customers from that harm.

  XIV. Duty: Policy/Government Immunity
        a. Policy Bases for Invoking No Duty
               i. Strauss v. Belle Realty Co. – 2nd no duty rule

                      1. Negative Aggregate Economic Impact No Duty Rule: Let them be
                         sued, but not held liable and don’t have a trial.
                               a. If the aggregate economic impact that it would affect public
                                  interest that it would cause dislocation like a lack of service
                                  just to stand trial we won’t allow it. Especially if it is a
                                  public utility. We can’t afford to bring these law suits.
                               b. Bigger you are the harder it is to get sued.
                      2. Plaintiff had slipped and fell and sued Con Edison and Belle
                         Realty. Con Ed claimed they didn’t have a duty and the court said
                         they should be immune from trial b/c they are a public utility and a
                         essential service that can’t deal with crushing liability and can’t go
                      3. Judge Meyers dissented and said you should have to at least come
                         in and show that this huge impact would incur.
                      4. Policy: Social Justice if rates go up ppl wouldn’t be able to pay

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             ii. Notes and Questions
             iii. Reynolds v. Hicks
                    1. Encouraged a person to drink alcohol at a party, they go out on the
                       road and run over a child and kill them, parents sue.
                    2. You can’t sue a social host for this Social Host No Duty Rule
                    3. Social Relations/Lubricant policy – ppl need to meet each other
             iv. Notes and Questions
       b. Governmental Entities
              i. Government Immunity
                    1. Certain governmental actions are beyond the right of question they
                       are essential when government decision makers make policies even
                       if they are bad, no one has the right to question them. No duty for
                       negligent policy making
                    2. Can’t question policy in court b/c we voted on those ppl to make
                       those rules and courts can’t question policy making of other
                       branches of government b/c its not their job (separation of power)
                       only exception is questioning on constitutional grounds. So you
                       can only sue when they don’t act on the policy in the right way.
             ii. Municipal and State Liability
                    1. Riss v. City of New York
                            a. They complain about the policy about when people are sent
                               out for 911 calls.
                            b. Cases
                                      i. Page 236 note 3 Weiner - they are suing because
                                         there weren't enough cops located in the subway
                                         station, court says not hat is a governmental
                                             1. Imposing duty on a public authority would
                                                affect resources.
                                             2. No right to have that decision questioned.
                                      ii. 238 note 7: Pratt - school bus districts create a
                                          school bus routes, the bus maps forced a child to
                                          cross the street and the kid got hit. Sued for not
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                                         having enough bus stops and in the wrong spot.
                                         Court says not actionable.The district did not have
                                         to run a door to door service, and we can't tell them
                                         that they must b/c they may not have enough loot.
                                    iii. Klinger case: person assaulted in subway station
                                         where construction goin on and someone pulled this
                                         person behind some metal plates that had been
                                         stacked up and assaulted her. Court says this could
                                         be considered a proprietary act (where did they put
                                         and did they create an opp for this to happen) or it
                                         can be a governmental one. Decided it was a
                                         governmental act (page 237)
                                     iv. Sorichetti (pg. 235 note 2(b)) Feasance never apply
                                         to gov entity, b/c the whole purpose is to protect
                                         individual autonomy but gov is not a person, but
                                         there is a separation of power issue.
                                     v. Florence (237 note 5) - police voluntary to send a
                                        cop to let some cross when a guard is sick, guard
                                        was sick and a cop didn't come
                                             1. It was ministerial decision. But since they
                                                 didn't have to do it in the first place, since
                                                 they didn't do antything it’s a non action.
                                                 But they started to apply guards so ppl
                                                 counted on them
                     2. Notes and Questions
                     3. Lauer v. City of New York
                     4. Notes and Questions
              iii. The Federal Tort Claims Act
                     1. Cope v. Scott
                              a. You can’t sue a government employee for hurting you
                                 unless it is a discretionary act, doesn’t apply if they were
                                 exercising a discretionary function.
                     2. Notes and Questions
  XV.   The Duty of Landowners and Occupiers
        a. Carter v. Kinney

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                       i. A person is not an invitee merely because that person was

                      ii. The Kinneys (D) hosted a bible study meeting at their home. The
                          sessions were sponsored by the Northwest Bible Church and
                          participants signed up for the sessions at the church. The
                          sessions were hosted at various times at the church and at the
                          homes of other members. Carter (P) came to one of the morning
                          sessions, slipped on a patch of ice in the driveway, and broke his
                          leg. Kinney had shoveled the driveway the previous evening and
                          was not aware that ice had formed overnight. D did not receive
                          any financial or other benefit from P in connection with the bible
                          study meeting. P sued D and the trial court granted D’s motion
                          for summary judgment, holding that P was a licensee and that D
                          did not have a duty to warn P of a dangerous condition of which
                          D was not aware. P appealed.

                      iii. Carter is a licensee because he was a social guest; Kinneys were
                           not receiving any benefit from Carter’s presence in their house.
                           Court refuses to deem Carter an invitee – there was not a public
                           invitation because it was limited in scope to the bible study
                           group. Plaintiff argues that Kinneys were receiving a benefit in
                           the sharing of ideas – but court identifies this intangible benefits
                           idea as the hallmark of licensee’s permission to enter (p. 193)

               b. Notes and Questions
               c. Heins v. Webster County
                       i.   Hospital Visitor v. Hospital

 ii.         Invitee-Licensee distinction abolished in Nebraska.
iii.         Rule: Nebraska courts will no longer apply the common law distinction between invitees and
    licensees. Instead, landowners will owe a duty of reasonable care to all lawful visitors.
iv.          Abandon the distinction for the policy reason that a visitor’s status should not determine the
    level of duty that a landowner owes him.
 v.          The common-law distinction should not be able to protect a landowner from liability when he
    would otherwise be held to a standard of reasonable care.
vi.          Factors to use when considering whether a landowner has exercised reasonable care:
    1.       Foreseeability of harm.
    2.       Purpose of entrant’s visit.
    3.       Time, manner, and circumstances of visit.
    4.       Use to which the property is or is expected to be put.
    5.       Reasonableness of the inspection, repair, or warning.
    6.       Opportunity and ease of inspection, repair, or warning.
    7.       Burden on the landowner and/or community in providing protection.
               d. Notes and Questions
               e. Intrafamily Duties
         XVI. Duty: Emotional Distress Damages

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       a. Compensatory Damages
             i. Seffert v. Los Angeles Transit Lines
                   1. Damages:
                           a. Economic/Pecuniary:
                                    i. Medical Expenses - Present and Future.
                                   ii. Lost Income - Before hand she operated her job
                                       with her foot, but now she can't do it anymore and
                                       now she needs a new job that could be a less paying
                                       job. So it can mean less pay and less earning
                                   iii. How do you prove causation, and we are concerned
                                        about fraudulent claims,
                           b. Non Economic:
                                    i. Pain and Suffering - physical pain and emotional
                                       suffering (she won a 134,000) (parasitic damages)
       b. Emotional Harm
             i. Falzone v. Busch
                   1. Defendant negligently drives his car and narrowly misses the
                      plaintiff, but scares the heck out of him. This Defendant caused
                      emotional distress – so she primarily suffers fear and she may/may
                      not suffer a subsequent injury b/c of the fear.
                   2. Can you recover damages for being scared independent of a
                      physical injury? Yes but only in 3 cases.
                           a. Zone of danger: The threat of injury cases (no duty for
                              NED unless it falls under one of these)
                                    i. As long as the defendants conduct creates a
                                       reasonable fear of immediate and serious personal
                                       injury (threat of injury rule) and where the
                                       circumstance who that the D did something that put
                                       the plaintiff in a position of immediate fear/death.
                                       Duty is not to put P in a zone of danger. Req:
                                          1. Threat of immediate injury

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                                     2. A physical consequence of that fear (some
                                        states require a symptomentology i.e. has to
                                        be in a doctor’s book to be recognized)
                                        (mental/physical fear) – have an expert.
                                     3. Has to be immediate
                                     4. Threat of serious bodily injury or death.
                      b. The shocking situation case
                              i. D directly exposes P, negligently, to a shocking
                                 situation (where a reasonable person would suffer
                                 severe distress, Gamon)
                              ii. Usually about the death of a loved one, survivor of
                                  a lone one (mishandling of a dead body), negligent
                                  misdiagnosis/misnotification notices (i.e. sorry to
                                  tell you that you had AIDS)
                            iii. Gammon – reasonable person wouldn’t be able to
                                 cope with this. Don’t need objective
                                 symptomentology. If obvious enough from the
                                 facts that it is real you can win the case based solely
                                 on your testimony.
                      c. Bystander/3rd party harm cases

                              i. Can be considered a subdivision of number 2
                              ii. Dillion v. leg – You negligently forced her mother
                                  to watch her children die before her eyes.
                            iii. Rules vary by jurisdiction
                                     1. Broad Recovery Version – Dillon v. Leg –
                                        Hilton Hotel
                                             a. The witness (Plaintiff) physically
                                             b. Bystander observed injury to 3rd
                                                party with own senses
                                             c. Bystander was closely related
                                     2. Moderate Recovery Version – Porti Case

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                                                    a. Interfamily/ marital relationship (i.e.
                                                        not a cousin or long lost grandfather)
                                                    b. Observation of death at the scene
                                                    c. Victim either dies or suffers a severe
                                                        physical injury.
                                                    d. Resulting in a severe emotional
                                            3. No Recovery Version – NY State Rule
                                               Toben v. Grossman, Vossi v. San Perry
            ii. Original Rule: There is no duty to avoid emotional impact. (impact rule)
                has to be some contact, if not harm. No longer exists. Don’t require
                injury, just impact.
           iii. Rule Today: As long as D’s conduct creates a reasonable fear of
                immediate and serious personal injury (threat of injury rule) and where the
                circumstances show that D did something that put the Plaintiff in a
                position of immediate fear/death.
           iv. Notes and Questions
            v. Metro-North Commuter RR Co. v. Buckley
                   1.   A plaintiff suing under the Federal Employer’s Liability Act may recover
                        for emotional distress only where the plaintiff has suffered a physical
                        impact or was placed in a risk of immediate impact.

                   2. RULE: A plaintiff suing under the Federal Employer’s Liability Act may
                        not recover for emotional distress where he has been exposed to the
                        risk of contracting a disease but has not yet suffered any symptoms of
                        the disease.

           vi. Notes and Questions
           vii. Gammon v. Osteopathic Hospital of Maine, Inc.
                   1. Must be really bad and severe to recover w/o personal injury.
                   2. Erroneous Aids test results.
                   3.   A defendant’s liability for emotional or psychic harms he inflicts upon
                        the plaintiff should be limited by the foreseeability of the harm.

                   4. RULE: A defendant may be liable for any foreseeable emotional or
                        psychic harms he negligently causes.

          viii. Notes and Questions

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                    ix. Portee v. Jaffee
1.      A defendant who negligently causes the death or severe injury of his victim will be held liable to
any close relatives of the victim who witnessed the accident first-hand.
2.      RULE: A cause of action for the negligent infliction of emotional distress may be maintained
where the plaintiff witnesses the death or severe injury of a close relative at the scene of an accident
caused by the defendant’s negligence.
3.      Foreseeability test:
a.      Whether the plaintiff was located near the scene of the accident;
b.      Whether the shock resulted from the direct and contemporaneous sensory observation of the
accident, as opposed to learning of it from third parties;
c.      Whether the plaintiff and the victim were closely related; and
d.      The harm witnessed must be death or severe bodily injury.
4.      The risk of an extraordinary reaction to a slight injury does not justify the imposition of liability.
                    x. Notes and Questions
                    xi. Johnson v. Jamaica Hospital
                             1. Mom and dad come to see a baby in the hospital and the baby is
                                not there b/c the baby was kidnapped b/c they negligently failed to
                                secure the hospital. Parents go nuts and the baby is brought back
                                and is brought back uninjured. Parents sue the hospital.
                             2. Justice Kay says not law suit b/c:
                                     a. Not zone of danger case
                                     b. Bystander recovery, the kid wasn’t injured at all
                                     c. Shocking situation – only for certain cases
                                     d. Policy reasons for not adopting, blank denial of recovery
                                        and the reason for the strictness is that we have a public
                                        policy that if we were to grant liability to the bystander we
                                        couldn’t limit it in any way so we could have unlimited
                   xii. Notes and Questions
            c. Economic Harm
    XVII. No Duty Argument Review
            a. No Feasance – no risk increasing behavior, I didn't partake in any risk increasing
                behavior (affirmative conduct) Policy Autonomy
            b. Negative Aggregate Economic Impact
            c. Social Host

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       d. To Avoid Negative Infliction of Emotional Distress P needs: Duty, negligence,
          Cause in fact and damages. (Seffert v. LA Transit)
       e. Governmental Immunity
               i. Governmental/discretionary function – the policy itself not sue able
              ii. Proprietary/ministerial function – action of government employees
                  carrying out this policy is sue able – need to show feasance, and not just
                  them not acting
       f. Premise Liability – duty of owners and occupiers of land. Injuries caused by the
          condition of the property, not to someone outside but to someone who was
          become a visitor to your property (i.e. like someone coming to your house and
          slipping on your icy sidewalk) but this is actually a limited duty. Use the rule that
          is best for you, but address every rule.
               i. Carter v. Kinney – a couple offer a bible study, a guy decides he is going
                  to go (doesn’t say he will) and slips on the sidewalk. Since coming for
                  bible class, he has nothing to complain about because he is a licnesee. IF
                  he was an accountant who had come to file a tax return, and slips then he
                  could complain because he would be an invitee. Categories:
                      1. Invitee – a person who is coming to confer on you a commercial or
                         material or economic benefit. A business guest.
                              a. Duty owed: full duty to act as a reasonable person, in the
                                 maintenance of the a safe premises – discover dangerous
                                 defects and take reasonable measures to fix them.
                                 Warnings of the dangerous conditions are not enough.
                                 What would a reasonable person have done.
                      2. Licensee – a person who is not trying to get a material benefit, i.e.
                         a social guest.
                              a. Duty Owed: Warn of known and hidden dangers. You
                                 only have to warn about duties that you know of and that
                                 they don’t see or notice or know by themselves.
                      3. Trespasser – a person who is unwanted and on your premises
                         without permission.
                              a. Duty Owed: to avoid willful and wanton misconduct,
                                 basically deliberate injury or setting a trap. For ex: you
                                 know that someone always passes out drunk on your lawn
                                 and you just decided to mow your lawn with a John Deer

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                      4. Single Standard – Hines v. Webster slip on a sidewalk case. This
                         standard abolished the above and established a single standard.
                              a. When someone on your property you need to take
                                 reasonable steps to fix dangers in a reasonable period of
                              b. Almost impossible to avoid law suits.
                              c. Hines old rule for trespassers, Combine Invitee and
                              d. Child Trespasser Rule
       g. Loss of Consortium - when a neg individual disabled spouse by running them
          over, this is when the healthy spouses sues b/c they lose something i.e. the loss of
          a natural marital relationship (physical/emotional). This is for the emotional lose
          that the healthy spouse has suffered, its a loss of services. Only one spouse to
       h. Wrongful Death Statutes (not compesnatable at common law)
               i. Economic loss to the family, the survivors (not estate) can recover the
                  economic loss of the decedent to the family. i.e. the salary that person
                  would have earned. Economic factors.
              ii. What about things beyond economic factors, i.e. pay and suffering? You
                  don’t get money for E/D
              iii. If person is very old or very young, the negligent injurer did the family a
              iv. E/D for non traumatic events are recoverable to certain parties/states.
       i. Survival Statutes (no compensatable at common law) - gave a cause of action to
          the estate of the dead person to recover expenses so the estate wouldn't be out the
          money (funeral, medical expenses, etc.) Should the estate be able to recover from
          the pain and suffering that the dead person went through? Yes for designated
          survivors (ED) in a proper case.
       j.   prove in formal order (D wants to negate the P's affirmative argument)
               i. Duty
              ii. Breach (negligence)
              iii. Cause in fact
              iv. Proximate cause

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               v. Damages
  XVIII. Defenses: Contributory Negligence and Assumption of Risk
        a. The Plaintiff’s Fault
                i. Contributory Negligence
                      1. You were neg, b/c you took an unreasonable risk to yourself, not to
                         others. That risky conduct was also a cause in fact to your harm. D
                         not saying I wasn't a cause in fact, saying but for your inattention
                         to your own welfare the accident wouldn't have happened. Also a
                         proximate cause - b/c no intervener and no inforseeability and the
                         damages are what you cause to yourself.
                      2. A mirror of negligence, Plaintiff negligence, but not a perfect
                         mirror (p. 441 3rd full paragraph)/ And should be Plead upfront.
                         Even thought it not liked by courts.
                      3. Applies as an absolute Bar when D was reckless even tho P was
                         unnattentive to own safety and Last clear chance, if D driving neg
                         down the road and the P neg strayed across the road and should
                         have been able to avoid but didn't pays 100%
        b. Assumption of Risk
                i. Express Assumption of risk - Victim recovers nothing from a bad
                   defendant. Involves a written agreement about who will bear certain risks.
               ii. Implied Assumption of Risk
                      1. Primary – no duty/no negligence. Not a defense because the
                         defendant wasn’t one of these things
                      2. Secondary (top of 484) - This is a true defense, Where the D was
                         negligence. Plaintiff Conduct:
                              a. Reasonable
                                      i. There is duty, and Neg. on part of the D. So we
                                         need a defense.
                                     ii. Can't use contrib.
                              b. Unreasonable - Plaintiff Recklessness, Contrib.
                                 corresponds to Neg. on the D's side.
                                      i. Diff btw this and contrib. neg and how does
                                         Davenport show us? The difference is that the P had

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                                             Actual knowledge of hazard (484-485). In Davidoff
                                             they didn't realize that it was a possibility. Sounds
                                             like Recklessness, in reference to the D, Fireman
                                          ii. Here is an intervener who was obviously reckless
                                              (union oil company and the shop owner who knew
                                              that he had received a mixed up shipment) .
                                              Contrib. a complete bar to recover
              iii. Davenport - definition (top 483) - P must know that he is encountering a
                   danger and he must appreciate nature and extent of that danger and he
                   voluntarily goes ahead anyway. Do we need a separate defense of
                   assumption of risk? No we don't. If p assumes risk he recovers nothing
                   even if D is negligent.
              iv. Knight - no duty to avoid negligently hurting your co-participant. Can't
                  reckless hurt someone though. Social lubricant policy
                      1. Murphy v. Steeplechase Amusement Co.
                      2. Notes and Questions
                      3. Davenport v. Cotton Hope Plantation Horizontal Property Regime
                               a. Contributory negligence (he went down a dark stairway,
                                  when he could have taken the lightened stairway) He
                                  should of went down the lighted stairway
                      4. Notes and Questions
  XIX. Defenses: Express Assumption of Risk and Comparative Fault
        a. Assumption of Risk
               i. Express Agreements
                      1.   Waiver

                      2.   Disclaimer

                      3.   No duty; therefore no negligence to talk about

                      4.   No liability

                      5.   All or nothing for verdict/outcome

                      6. 2 questions:

                               a. 1: will a court enforce a contract even if it’s clearly
                                  drafted, given the type of activity involved?

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                               b. 2: is so is the contract sufficiently clear?

              ii. Dalury v. S-K-I, Ltd.
                     1. Why does P get to sue? Not a matter of tort law, this is simply
                        contract law. This was invalid, the consideration for saying you
                        won't sue, you got something of value (went sky diving for a 100
                        bucks) i.e you get the benefit of doing something at a certain price.
                        What are the grounds for a contract to be unenforceable/get out of
                               a. Lack of consideration
                               b. Duress - sum1 made you sign it
                               c. Fraud
                               d.   Bad Faith
                               e. Missing Terms of a Contract, lacking a material term
                                  (usually courts will just supply it)
                               f. Unconsciousablity - one person in a much higher position
                                  than another, completely unfair where you take advantage
                                  of someone.
                               g. Impossibility
                               h. Against public policy - if contracts violate it
                     2. Grounds for violating a contract in this case: Public Policy.
                     3. Unless N for a public service, not enforceable
                     4. If a contract is ambiguous against the drafter.
                     5. EAR - stupid conduct, deliberate decision to take a risk of self and
                        waive the ability to recover for neg. A person who subjects
                        themselves to risk of neg. caused injury. You recover nothing.
              iii. Notes and Questions
        b. Levandoski v. Cone
        c. Notes and Questions
  XX.   ADA Strict Liability

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       a. Doctrinal Development
              i. Fletcher v. Rylands
                    1. A Cotton mill, driven by water. On the neighbors land was
                       running a mining operation. He built a huge reservoir so that it
                       flew through his mill, but it then broke and flooded. And
                       unbeknown to both P and D, there was someone mining before the
                       other guy that actually went to the D property and it destroys the
                       mine shaft so P sues b/c of the flooding.
                    2. Found D was free from all blame, even though somebody else that
                       they employed hadn't done a good enough inspection, so they are
                       not at fault.
                    3. Liability imposed even though no fault on the D's.
                    4. Principal - person that brought something on his property that was
                       not naturally there, they are likely to do damage (mischievous) if
                       they escape.
             ii. Notes and Questions
                    1. Note 3, p. 512 (losie) - D says not Neg even though boiler destroys
                       their house. We totally reject this rule, formally rejects fletcher v.
            iii. Rylands v. Fletcher
                    1. Liability for cause in fact.
                    2. P.447 at the bottom, first sentence of subsection B
                    3. SL - compare fault on both sides (CF)
       b. When do you use ADA Rule?
              i. When you can't prove that the D didn't do anything, did everything with
                 most care possible. No way to prove negligence. Impossiblity of showing
                 that D was doing what he was doing in a Neg way. Contains High Risk
                 that can't be avoided.
                    1. First prove high Risk
                    2. 2nd Prove in a bad location/low volume activity
             ii. Notes and Questions
            iii. Sullivan v. Dunham

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                 1. Someone is using dynamite and it threw rocks and debris onto
                    someone's property, but it was used properly. Was a pure accident,
                    no negligence.
                 2. Losie v. Buchannan - when we hold ppl for holding wild animals,
                    the liability is the same prinicpal. Animals have a known dispotion
                    to stray and the owner, knowing their nature, is liable. Not liablity
                    w/o faulty, it’s a presumption of fault.
                 3. Court says (515) there is liability but according to Losie there
                    shouldn't be
                        a. If you can describe the activity the D was involved in, as a
                           ultra hazardous activity (risk that can't be eliminated by
                           exercise of the upmost care. No matter how much care,
                           still a high risk of harm) this rule is called: Restatement 1
                           Rule for SL for Ultra Hazardous Activity (UHA)(activity
                           based rule, not how you were doing something, what
                           matters is that you were doing it, p. 514 blasting cases) they
                           say Fletcher v. Rylands should be applied. This is the same
                           rule. (under ground pools, Gill v. Swann (hot air
                           ballooning)). What enterprise is he in, is it: this is the US
                           rule. Neg in how you do something, def of neg.
                                i. High non eliminateable risk –
                                ii. Not a matter of common usage in the particular area
                                    that it was being done.
                        b. More modern rule. Neg is where you did it, doing it at all is
                           negligent. 2nd restatement of torts (p. 519 note 6) you are
                           SL for a Abnormally Dangerous Activity (ADA) if (6
                           factors). Not a rule for liability without fault.
                                i. A high probability of an accident (risk) (P) –
                                ii. If the accident would occur the harm or loss would
                                    be a serious/great loss (risk) (L) – Necessary
                               iii. That high probability of a high loss is non
                                    eliminatable no matter how much due care you take.
                                    (risk) - Necessary
                               iv. Appropriateness or inappropriateness of the location
                                   of where that activity is carried on. How much of a
                                   possibility of moving the activity. (AV)

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                                    v. How valuable or useless is this activity to the
                                       community. - is it costly or pricey to stop/move the
                                       activity all together. (AV)
                                   vi. Not Common.
                                  vii. Page. 526 Yukon - rule 1- dynamite storer - prove
                                        high risk uneliminateable activity. (flip side of 1st
                                        condition of Res Ipsa) that dynamite was essential
                                        to that mining community. Impose absolute liability
                                        just have to prove non-eliminate able and not
                                        common. - sounds like the fireman rule (Deliberate
                                        risk assumer for profit) a deliberate risk imposer for
                                        profit. Blaster an insurer of everyone around him.
                                        He would not pay under rule 2.
              iv. Notes and Questions
              v. Indiana Harbor Belt RR Co. v. American Cyanamid Co.
                     1. Posner - what fatal flaw, reason D has to fail? Risk could have
                        been eliminated by Due care, this is poisonous not caustic (can't be
                        successful contained). If it was causitc, then transporting it would
                        be a harm that was unavoidable. Spells out everything on pg. 521.
                        even if you can't eliminate it by due, you can by shifting it to a
                        different local, changing it or stop it. (so relocate, change it, or
                        stop it). Says that SL is another name for Neg.
                     2. Someone is transporting a poisonous chemical D accused of Neg.
                        in this toxic spill
              vi. Notes and Questions
  XXI. Intentional Torts
        a. Basic Doctrine
               i. Intent
                     1. Garratt v. Dailey

                            a. Garratt is an arthritic old lady. Dailey is
                               a kid. Garrett started to sit down, but
                               Dailey moved the chair she was going to
                               sit in before she could sit down, and she
                               fell and was injured. She sued Dailey for
                               battery. The lower court found for the
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                                defendant, and the plaintiff appealed to
                                the State Supreme Court, asking for
                                damages or a new trial.
                          b.    Rule: If the defendant “knew with substantial
                                certainty” that his actions would cause harmful
                                contact, then the defendant is liable for battery.
                          c. The court remanded the case back to
                             the trial court for clarification. The court
                             instructed the trial court to determine
                             whether the defendant “knew with
                             substantial certainty” that he would
                             cause harmful contact. The trial court
                             subsequently found for the plaintiff and
                             awarded her damages.
                   2. Notes and Questions
            ii. Assault and Battery
                   1. Battery
                          a. Act with the purpose of the consequences that follow
                          b. Know the consequence is substantially certain to occur
                             from their conduct.
                          c. What we need to prove - a mental component, his state of
                             mind (this is not need in negligence, we don't care about
                             you we care about a reasonable person) he has to know that
                             if he pulls this chair out from beneath her that she is going
                             to fall. Rule p.886 - you are substantially certain. He had to
                             know with substantial certainty, i.e. a reasonable kid would
                             have known she would have fell down, he doesn't have to
                             know but a reasonable kid has to know.
                          d. Elements (picard): intended to cause and did cause
                             uncontested touching of another.
                                   i. Don't have to intent to hurt, just substantially certain
                                      that you will come into contact with that person.
                                      Contact doesn't have to be harmful or offensive.
                                      Don't need intent, just substantial certainty

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                                       1. Transferred intent - intent transfers between
                                          victims, if all the other elements are there
                                          then it transfers to anyway and it can travel
                                          from one common law tort to another.
                               ii. Non consensual - P have to prove lack of consent
                              iii. Contact with the person of another. Any type of
                                   contact (regardless of how small) that is small…
                                   don't need to prove damages or that there was an
                                   injury. Dignitary Tort - harm to dignity.
                              iv. Person and any physical objects directly connected
                                  to the person (i.e. stepping on someone's shoes,
                                  don't have to actually touch the body of the person
                                  it’s anything in direct contact with the person i.e.
                                  knocking the glasses out of a persons hand)
                        e. DAMAGES - punitive and compensatory.
                 2. Assault
                        a. P.892 a physical act of a threatening nature or corporal
                           injury that puts them in fear of eminent harm.
                        b. Elements - Intent or substantially certain to cause a
                           reasonable person in the position of the recipient of that
                           action apprehension of eminent nonconsensual contact of a
                           person. Doesn't have to put you in fear of injury, but non
                           consensual bodily contact.
                        c. Bushanaski
                                i. You should be apprehensive when you open the
                                   door, you are not reasonable. You are implying
                                   consenting that the door will slam in ur face. (895)
                               ii. Apprehension has to be of an imminent batter. i.e.
                                   you have to be able to get hit by something. i.e. its
                                   an assault if some one says if you don't get out of
                                   the way I will slam this door in your face, but if you
                                   are 2 feet from the door and he says that its not
                                   assault b/c he can't reach you.
                 3. Where you have the intent to commit one of the common law torts,
                    and it is unforeseeable that the other tort would happen, intent
                    transfers. So btw victims and crimes. So proximate cause doesn't
                    play a very strong role.

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                 4. Victim's do much better if the D is a intentional wrong doer they
                    get both punitive and compensatory damages. Their neg don't
                 5. DEFENSES
                        a. Reactive defense that negates one of the elements of the P's
                           case. p. 931 Hart v. Geysel - Consent Defense. Its not not
                           consensual. Negates the required field of non
                           consensuality. Hart - sporting event. Issue of the scope of
                           the consent - i.e. 2 hand touch game of football you tackled
                           me. What determines if the person consented or not? When
                           a reasonable person would think that the person consented.
                           Reasonable mistake about consent is admissible.
                        b. Courvoisier case
                                i. Privileges - admits that P proved all elements of the
                                   case, D says my tort was privileged, similar to
                                   structure to negligence case.
                                       1. Self Defense - I hit you b/c you were about
                                          to hit me, so my batter was in self defense
                                          (bottom of p. 935) P drew gone and shot
                                          somebody and if the victim was not
                                          assaulting him then you should find for the
                                          victim. B/c a reasonable person would think
                                          they are about to get assaulted. You are
                                          allowed to a reasonable mistake.
                                              a. Forced used has to proportional to
                                                 the threat that a reasonable person
                                                 would perceive.
                                              b. In some states, if there is a escape
                                                 you have to take it
                                       2. Defend a 3rd party - you are not entitled to a
                                          reasonable mistake, you have to be damn
                                       3. Private necessity (p. 493) - limited, can use
                                          and damage their property subject to
                                          compensation but protects you from punitive
                                          damages. But there has to be a necessity to
                                          saving your own life and maybe your

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                               6. Picard v. Barry Pontiac-Buick, Inc.
                                       a.   Punitive damages need a showing a malice or bad faith.

                               7. Notes and Questions
                               8. Wishnatsky v. Huey
                               9. Notes and Questions
                      iii. Intentional Infliction of Emotional Distress
                               1. Page 909 Siliznoff - had own private co. some big guys walked
                                  into his office and asked him how he didn't join some association.
                                  Threatened to hurt him if he didn't join, but they did it very nicely
                                  and said they would hurt him in a week (not imminent, so no
                                  assault). He sued him for this shit.
                                       a. The act has to be extreme and Outrageous and intolerable
                                       b. Cause distresses in a reasonable person.
                               2. CASES: Russo, p. 919 note 12 (creditors), p. 914 (race and gender
                               3. Help
                                       a. Objective character of the act
                                       b. Relative power of victim and actor - Q is who is insulting
                                          who i.e. a manager cursing a worker is much more
                                          outrageous then vice versa.
                               4. Womack v. Eldridge
     a.      An investigator took P’s picture for an attorney to use in a child molestation case, thus involving
     P in the case and causing him severe emotional distress.
     b.      RULE: PFC for emotional distress:
  i.         Wrongdoer’s conduct was intentional or reckless.
 ii.         Conduct was outrageous and intolerable, offending generally accepted standards of decency and
iii.         Causal connection between wrongdoer’s conduct and the emotional distress.
iv.          Emotional distress was severe.
  c.     The defense attorneys for a molestation case tried to raise doubt by flashing
  pictures of other employees as potential suspects. One of the other employees
  who’s picture was shown is now implicated. He has a shadow cast over his
  reputation. Not a deformation case, but sues for intentional infliction of emotional
  distress. Court finds that that this can be considered as an intentional infliction case
  and sends it to a jury. The deceipt may be enough to make it extreme and

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                              5. Notes and Questions
                     iv. Defenses and Privileges
                              1. Hart v. Geysel (consent)
    a.       Cartwright died as a result of a blow he received in an illegal prize fight he engaged in with
    b.       RULE: One who consents to particular conduct has no right to recover damages for an injury he
    sustains when another acts on that consent.
 i.          MAJORITY: When the parties engage in mutual combat in anger, each is civilly liable to the
    other for any physical injury inflicted by him during the fight.
ii.          MINORITY: Where parties engage in a mutual combat in anger, the act of each is unlawful and
    relief will be denied them in a civil action; at least, in the absence of a showing of excessive force or
    malicious intent to do serious injury upon the part of the defendant.
    c.       Case follows minority rule that consent to criminal conduct is effective bar to recovery in tort.
                              2. Notes and Questions
                              3. Courvoisier v. Raymond
                                       a.   Self-defense.

                                       b.   After being attacked by rioters and unsuccessfully trying to
                                            scare them away, P saw D approach him, mistakenly believed
                                            he was a rioter, and, fearing for his life, shot him.

                                       c. RULE: A person is privileged to act in self-defense if
                                                i.    His fears were reasonable under the circumstances;

                                                ii.   He acted honestly in using force; and

                                               iii.   The means of force used were reasonable.

                              4. Notes and Questions
                              5. Katko v. Briney (protection of propert)
  a.      D set a spring gun in his unoccupied farm house, which seriously injured P when he broke into
  the house to steal old bottles and fruit jars.
  b.      RULE: No privilege to use any force calculated to cause death or serious bodily injury to repel
  the threat to property, unless there is also such a threat to the defendant’s personal safety as to justify
  a self-defense.
  c.      An owner has a privilege to use reasonable force to protect his property, but this privilege does
  not allow him to use a dangerous trap in an unoccupied building to protect his property against
                              6. Notes and Questions
                              7. Vincent v. Lake Erie Transportation Co.
                                       a. A steamship owned by Lake Erie Transportation Co.
                                          (D) was moored at Vincent’s (P) dock to unload
                                          cargo. A storm arose and the vessel was held

  TORT OUTLINE BUSH FALL 2008                                                                      Page 46
               TORT OUTLINE BUSH FALL 2008

                                  secure to the dock causing $500 in damage to the
                                  dock. Vincent sued to recover damage to the dock
                                  and the jury decided in favor of Vincent. D
                                  appealed, alleging that it was not liable under the
                                  defense of private necessity. A steamship owned by
                                  Lake Erie Transportation Co. (D) was moored at
                                  Vincent’s (P) dock to unload cargo. A storm arose
                                  and the vessel was held secure to the dock causing
                                  $500 in damage to the dock. Vincent sued to
                                  recover damage to the dock and the jury decided in
                                  favor of Vincent. D appealed, alleging that it was
                                  not liable under the defense of private necessity.

                              b. The ship was secured to the dock deliberately to
                                 avoid damage to the ship resulting in damage to
                                 the dock. The court held that while D cannot be
                                 held liable for trespass due to private necessity, D
                                 used P’s property to preserve his own and D is
                                 therefore liable for resulting damages to P. If the
                                 boat had remained secured to the dock without
                                 further action by D, D would not have been liable. D
                                 was held liable because affirmative measures were
                                 taken to secure the boat. The ship was secured to
                                 the dock deliberately to avoid damage to the ship
                                 resulting in damage to the dock. The court held
                                 that while D cannot be held liable for trespass due
                                 to private necessity, D used P’s property to
                                 preserve his own and D is therefore liable for
                                 resulting damages to P. If the boat had remained
                                 secured to the dock without further action by D, D
                                 would not have been liable. D was held liable
                                 because affirmative measures were taken to secure
                                 the boat.

                              c. This case is an example of private necessity which
                                 is an incomplete privilege. Public necessity is a
                                 complete privilege.

                       8. Notes and Questions
  XXII. Miscellaneous and Definitions.
        a. Constructive notice – if the evidence/stuff was there for a extended period of time,
           we construe you knew it was there.
        b. Motion for Summary Judgment – at the beginning of trial, before anyone has
            provided any evidence. But do tell what evidence they intend to prevent. After
            deposition but before trial.

TORT OUTLINE BUSH FALL 2008                                                          Page 47
               TORT OUTLINE BUSH FALL 2008

       c. Preponderance rule requires individuating evidence.
       d. Preponderance applies for causation and negligence, sufficiency of evidence.
            More likely than not the D was a cause of harm, fell below RPS, if insufficient
            evidence its below preponderance.
       e. Clarification of Snark v. Qwark
                i. Great analogy pollution risk the Qwark (thing we know that exists), the
                   snark (fire hazard) is not only UF prima facia (factually) and it has to be a
                   separate entity is the UF hazard really different from the pollution hazard
                   from the oil (use constraint test). Get rid of the qwark, if snark still there
                   its different.
       f.   Definition of a trespasser for premises liability
                i. Who comes on your premises w/o permission and remains there. Can
                   convert them to a licensee by saying oh you can stay. Duty you owe don't
                   set a trap and misconduct (worse then reckless)
       g. Wagonmound v. Polemis
                i. Polemis also allows for a no proximate cause based on remoteness of
                   victim in time and space.
               ii. Difference is (argue both rules, first talk about the one that helps you the
                   most) Polemis only no proximate cause that works is a reckless and
                   unforseeable actor
              iii. Wagonmound - UF type of occurrence
       h. Wagonmound the first conditon had to do factual unforseeability, elaborate on it.
                i. Has to be different, get an expert prove that this doesn't happen. (always in
                   wagonmound argument) then 2nd is the magically restraints.
       i. Direct Affirmative conduct v. risk increasing behavior
                i. try to help them but hurt them anyway, or telling them you would help and
                   then don't (they rely on you) (this is affirmative conduct)
       j. When is the youth standard not used for a juvenile
                i. Unless there is an adult activity - an activity that you wouldn't think that
                   juvenile would do

TORT OUTLINE BUSH FALL 2008                                                             Page 48

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