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Torts Outline for Law School

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Intentional Torts a. Battery i. Prima Facie Case of Battery 1. Actor A is subject to other person P for battery if: a. A acts b. Intending to cause i. Harmful Contact with P, or ii. Contact with P that is offensive, and c. A’s act causes such contact ii. Vosburg v. Putney (Eggshell Skull Rule) 1. Plaintiff was fourteen years old and defendant was a little less than twelve years old. The plaintiff kicked the defendant on the leg, a little below the knee. The incident occurred in a schoolroom in Waukesha, during school hours, both parties being pupils at the school. The defendant had a pre-existing leg wound. 2. No intent to touch, plus unlawfulness of the touch, is all that’s required for battery 3. Intent to battery means intent to do the act, intention to hurt is irrelevant a. Wrongdoer is liable for all injuries directly resulting from the wrongful act iii. Leichtman v. WLW Jacor Communications (Offensive Contact) 1. Leichtman claims to be a nationally known anti-smoking advocate. On the date of the Great American Smokeout, he appeared on the WLW Bill Cunningham radio show to discuss harmful effects of secondary smoke. While in the studio, Furman blew smoke in his face to humiliate and cause physical discomfort 2. No matter how trivial a battery complaint, it is actionable. A person can commit a battery by intentionally directing smoke at another. Cunningham is equally as liable as one who commissions the action iv. Newland v. Azan (Professional Negligence) 1. Newland alleged that, while in the dentist chair, he sexually assaulted her after giving her several painkilling shots. The events happened while the dental services were being performed. 2. Newland must show that Azan’s acts fell below standard of care for dentist a. “Professional services” did not include sexual assault b. The scope of professional services does not include all forms of a medical professional’s conduct simply because he/she was a dentist c. Just because Azan is a dentist and it happened in his office does not make him liable 3. Newland Notes a. Distinction between intent and motive i. U believes every child should endure bodily harm for their own good. Punches N. N sues for battery. Intent to hurt the child, but acted out of benevolent motives. Still battery, but may decrease damages ii. Justified battery when performing a Heimlich maneuver. R reasonably believed that touching C in that way was necessary to prevent serious injury b. Intent and Knowledge i. Garratt v. Dailey: Pulling chair out under grammy. Dailey was certain that his aunt would fall as a result of the moved chair. Battery upheld. ii. If the actor knows the consequences of his action and still does it, he is treated as if he desired the result c. Knowledge Sufficient, not necessary

i. T throwing dart at B’s leg hoping to hit it, but he is a bad aimer…Probably won’t hit the leg. T hits B, battery ensues d. Knowledge is a subjective standard i. Serving a person food with nuts in it. Knowing it contained nuts and knowing of the allergies is battery, but knowing neither is not battery. (Didn’t set out to poison and didn’t know of allergy) e. Knowledge and On-going activities i. Deli owner sold 10,000 cups of coffee, two customers got burned in the past. Statistic knowledge sufficient to establish intent? No purpose for causing harm f. Knowledge versus foresight i. Y threw a homemade bomb over shoulder away from friends. Knowledge that it may cause injury but it wasn’t intentional (Recklessness) g. Intent and Mental Incompetence i. Mental illness does not defeat intent, but if person cannot maintain the intent necessary to establish liability v. Herr v. Booten (Battery) (Negligence) 1. Bottle of Jack Daniels received by Eric as a gift and which he drank in two sustained gulps. The first gulp occurred before midnight. The next morning, his roommates discovered that he had past away during the night. 2. Defendant’s win: here was no harmful or offensive contact with Herr’s body to incite battery. Supplying an alcoholic beverage is not intended to cause offensive or harmful bodily contact. Supplying alcohol is not an act that infringes physical dignity or inviolability. (2nd Restatement of Torts) 3. Klein, the host is not liable to 3rd parties for injuries by an intoxicated adult. (If Eric was indeed 21, he would be solely liable for his own death) 4. A lot also turns on the particular kind of harm. What if Herr had gone out and caused an accident. Would the victim of the accident be able to sue the friends for battery? Yes. 5. Herr Notes a. What Must be Touched? i. If P shoots at D, but only puts a hole in his shirt, P is liable for battery ii. Doctrine of extended personality: Battery for someone taking plate out of another’s hands (Plate is extension) b. Offensive Contact i. Offends against prevailing standards of acceptable touching ii. Tap on the shoulder isn’t offensive. Rubbing up against a coworker is offensive b. Assault i. Prima Facie Case 1. Actor A is subject to liability to person P for assault if: a. A Acts b. Intending to cause apprehension of: i. An imminent harmful contact with P, or ii. An imminent contact with P that is offensive, and c. A’s act causes P to reasonably apprehend an imminent harmful or offensive contact with P ii. Brooker v. Silverthorne 1. Plaintiff alleges that the defendant called the exchange where she was working as a telephone operator and asked for a certain connection. When she could not

complete the connection he cursed and threatened her in an outrageous manner. He also said, “If I were there, I would break your god damned neck.” She tried to reason with him but he continued the insults. This language put her in fear that he would come to the exchange and further insult her. She was shock and unnerved, not being able to sleep for weeks. She suffers in health, mind, and body on account of the threatening language. No cause of action for abusive or threatening language. The defendant’s language did contain a threat, but not one to put a normal person in fear for bodily hurt. No intention to carry out act 2. Rankin v. Railroad: Foreman of railroad cursed her, threatened to strike her, etc. Alleged two causes of action, trespass and abusive language. No cause of action 3. Cooley on Torts: An act or omission may be wrong in morals, or it may be wrong in law. Assault must be resisted on the instant. Reluctance of the law to give a cause of action on mere words. 4. Lipman v. R. Co.: A carrier is liable to abusive language to a passenger because carrier has a liability to protect the passenger. Special circumstances. 5. CONTEXT MATTERS FOR ASSAULT iii. Vetter v. Morgan 1. Profanities shouted at a stop light can constitute assault if there was evidence of a threat and the potential for physical harm 2. Notes a. Apprehension versus fear i. You can make out assault if there is no fear, you only have to be aware that contact might occur. May hurt the damages wrought b. Conditional or Indeterminate threats i. For a threat to constitute assault, it must be given in a way that the threatened believes that contact is imminent. ii. “One of these days…” won’t work c. Present ability and reasonableness of apprehension i. Lack of physical proximity in Brooker decreases reasonability in apprehending imminent contact. Vetter could have been imminent because the cars were so close ii. Western Union: Sapp told Hill he would fix her clock if she would love and pet him. He was close enough to be able to reach over the counter to justify assault d. Aiding and abetting i. Gaither could have abetted Morgan’s assault on Vetters ii. C Raping Budweiser girl at B’s house. She wakes up with B sitting next to her. No evidence that B encouraged, enticed, or participated to aid and abet. However, Bross could be sued for assault by getting into bed next to her and causing her to fear imminent contact c. Defenses to Intentional Torts i. Consent 1. Many states require plaintiffs to prove absence of consent, rather than leaving it to the defendant to prove that the victim consented 2. Comparative fault has no place in intentional torts 3. Doctrine of consent turns on the idea that the plaintiff cannot prevail because he has chosen to endure bodily contact, or the apprehension of contact, or otherwise it would be tortuous 4. Consent can be communicated expressly or implicitly through conduct ii. Koffman v. Garrett

1. Andrew Koffman, a 13-year old middle school student, participated in the school’s football team. Coach Garnett was in supervision of the defense. Garnett was upset by poor team tackling, and told Andy to stand motionless. Without warning, Garnett picked Andy up and slammed him on the ground to show proper tackling, breaking Andy’s humorous. Never before had the coach tackled a player. Yes to gross negligence and battery, no on assault 2. Ferguson: Gross negligence is that degree of negligence, which shows indifference to others amounting to the complete neglect of the safety of another. A degree that would shock fair-minded people 3. Disparity in size, not warned before tackle. No apprehension, no assault. Need to look at context of the fight. No coach has ever tackled a student before iii. Notes 1. Express consent – Patients sign statements that they were informed of all the potential risks and of the harmful contact. Surgery patients sign an express consent that they will be subject to bodily touchings. 2. Implied consent – People who enter crowded trains consent to involuntary jostling and touching. Also, prior history of the people is important, especially if they rough-housed before 3. If you actually and reasonably believe that another has consented, then you won’t be found liable. 4. Actual consent vs. Objective Indicia of Consent – Can someone be sued for battery if they believed the other had given consent? Bar of liability if the person had actually and reasonably believe the other consented to the contact. Ex. Vaccinations on immigrant ship…sickness…sue…not liable. 5. Fraud and Coercion – A tortfeasor cannot benefit from consent if he secured it in a fraudulent manner. Failure to disclose information relevant to victim’s decent constitutes fraud. a. A person who makes another drink poisoned wine cannot invoke consent as a defense. 6. Consent is not a defense if: Victim lacks ability to give meaningful consent and a reasonable person would perceive his lack of capacity 7. Subtler forms of coercion and incapacity – Consent is deemed ineffective if the defendant had reason to know that consent was not freely given. a. A patient can sue a therapist for battery after consensual sex if the therapist knew the patient was not in the position to make a free choice about sex. 8. Scope of consent – Even if the court determines that the act was consented to, the questions remains as to whether the actual contact was consented to. (Expressed and implied consent) 9. Surgery on an ear. Doc found that the other ear was diseased and operated on that one. Battery here because the action was out of the scope of consent. 10. Consent to Illegal Activities – Valid consents can be void against public policy. If A and B engage in an unlicensed boxing match where B is severely injured, he can sue A for battery because the licensing scheme would have provided fairer grounds iv. Self-Defense and Defense of Others 1. Haeussler v. De Loretto a. Plaintiff went to the home of the defendant search for his missing dog that frequented the defendants home. Upon answering the door, the dog ran out of the defendant’s home. The plaintiff started talking in a loud voice, waved his hands about, was excited and face flush. Defendant got afraid

and thought the plaintiff was going to strike him, so he struck him and closed the door. Holding: Yes, self-defense b. One who is involved in an altercation with another has the right to use force necessary to protect himself against bodily injury c. The court found that he used a reasonable force in self-defense, the force was not unlawful and the plaintiff failed to sustain the burden of proof 2. Notes a. Self-Defense, Provocation, and Imminence i. Self-defense available against imminent injury ii. The law does not privilege the use of force in non-threatening situations like teasing. iii. If you induce the fight, you cannot claim self-defense iv. Louisiana court rejected earlier decisions saying the victim’s provocation of a fight bars him from suing the defendant for battery and assault b. Objectivity of the Threat i. Self-Defense may only be invoked when there is a perceived risk of imminent injury to oneself. (Punching a delivery guy in the face who you thought was your enemy) c. Proportionality and Deadly Force i. In self-defense, the response must be in proportion to the threat ii. Deadly force in defense may only be used when the aggressor is using deadly force iii. A security guard can shoot and kill someone who attacked him from behind and was beating him iv. Law does not impose a duty to retreat, especially in the home. d. Conditional Threats, Dwellings, and Retreat i. The propriety of using deadly force is sometimes bound with the notion of “safe retreat”, if one believes that they could retreat from a situation that would justify deadly force one is not justified using deadly force. ii. If the attack is in one’s dwelling, deadly force may be used e. Defense of others versus defensive use of others i. If X were to use Y as a shield from bodily harm, and Y is hurt, X is liable to Y for battery v. Defense and Protection or Property 1. Katko v. Briney a. Facts: The defendants setup a 20-gauge shotgun trap in one of the rooms and pointed the gun towards the door to hit the intruder in the leg. No sign warning of its presence was posted. Plaintiff Katko considered the building abandoned, had been in there before to take some old bottles and jars. He entered the building through a boarded window, and got shot when entering the room above the anklebone. Stayed in hospital for 40 days, was on crutches for a year, and a brace the year after. Plaintiff had a permanent deformity, loss of tissue, shortening of the leg. Expenses: $2056.85 for hospital service, $61.80 for orthopedic services, $750 for loss of earnings. b. Is battery committed here? HOLDING: No, an owner cannot protect setups a gun-trap with death possibilities. c. No concern here for right to protect home and family…home was far away

d. Property owners are not permitted to use excessive force to protect property except to prevent the commission of felonies of violence where human life is in danger. Breaking and entering is not a felony of violence e. Restatement of Torts 85: No privilege to use force intended to cause serious harm against another whom seeks to enter his premises, unless the intrusion threatens death of serious bodily harm…He cannot gain privilege to install a mechanical device whose only purpose is to cause serious harm f. At the point where you are protecting your life, courts are much more forgiving. In Katko, it is more a defense of private property. g. Restatement of Torts 79 – The intentional infliction upon another of a harmful or offensive contact or other bodily harm by a means which is intended or likely to cause death or serious bodily harm, for the purpose of preventing or terminating the other’s intrusion upon the actor’s possession of land or chattels, is privileged if, but only if, the actor reasonably believes the intruder is likely to cause death or serious bodily harm to the actor or to a third person whom the actor is privileged to protect 2. Jones v. Fisher a. Facts: Defendants owned and operated a nursing home. The plaintiff, 26, worked for the home as a nurse’s aid. The defendants loaned her money for a plate for her mouth because her teeth were in bad shape. $190 was paid to the dentist and $10 of the $200 loan was kept. She quit working at the nursing home shortly after her dentist appointment. When arriving at the home to pick up her $48 check for last week’s work, defendants tried to persuade her to stay. She declined. Mr. Fisher asked her how she was going to pay back the $200. She told them she’d pay them $20 a week. Mr. Fisher demanded that she pay the loan back in three days or leave the upper plate for security. She refused to leave the teeth and Mr. Fisher grabbed her and put her arms behind her back while Mrs. Fisher took the plate. She was released and it was found that she had no scratches or bruises, but was humiliated and could not sleep for a week. b. HOLDING: Guilty of assault and battery, compensatory and punitive damages assessed 3. Notes a. Other security measures and other victims i. What about a vicious guard dog? If that reasonable as a matter of law to protect the house? Undecided. ii. How else could they protect their house? b. Unclean Hands Doctrine and punitive damages i. An equitable doctrine applied to courts faced with injunctive relief as opposed to damages. Those seeking equity must have clean hands, or not have broken the law themselves. Should this doctrine prevent the plaintiff’s in Katko from collecting because they were breaking and entering? c. Defense versus recapture of property i. In cases of ending leases, the owner must use reasonable means t get the person off their property. ii. In the example of a car driving across defendant’s land. Defendant shot at the car, handcuffed them, and abused them…Unreasonable iii. The limited privilege to recapture chattel is at the loser’s peril. If the chattel is his, its ok…It not, then he can be sued for battery d. Battery and Trespass

i. Trespass case when employees of a home builder moved on plaintiff’s land with heavy machinery after being denied. Plaintiff awarded $1 in compensatory damages and $100,000 in punitive damages (To discourage the same act happening again) vi. Necessity 1. Vincent v. Lake Erie Transportation a. The Steamship Reynolds, owned by the defendant, was for the purpose of discharging cargo on the plaintiff’s dock. While unloading, a strong storm prevented exit from the dock. At that time, no master could have attempted to navigate his vessel. Reynolds signaled for a tugboat to remove the ship from dock, but none were found. When the lines broke new ones replaced them, and the boat caused $500 worth of damage from slamming into the dock. A witness reasoned that they could have warped the ship into a slip, but the people at the dock were not required to use the highest level of intelligence b. ISSUE: Should company be liable for damage to the dick, even if defendant’s conduct was objectively reasonable, appropriate, and necessary? c. Defense: Conduct during storm was rendered necessary by prudence and good seamanship over which defendant had no control. d. HOLDING: $500 damage implemented e. Appellant contends that because its conduct during the storm was necessary by prudence and good seamanship over conditions it could not control, it cannot be liable for the property of others. f. When ordinary rules of property rights are suspended, an injury must be attributed to an act of God, not to the wrongful act of the people to be charged. g. But here, those in charge of the vessel deliberately held the boat in a position that damage to the dock resulted. Having preserved the ship at the expense of the dock makes the ship owners responsible h. Ploof v. Putnam: Defendant responsible for damages because a worker of his unmoored the ship causing it to run ashore and cause damage. In the present case, if the vessel was permitted to remain and the dock suffered an injury, the ship owner would be responsible i. Public necessity may require the taking of private property for public use, but you must always provide compensation in the end. j. The defendant prudently and advisedly availed itself of the plaintiffs’ property for the purpose of preserving its own more valuable property, and the plaintiffs are entitled to compensation k. Cost internalization: force those who create the costs to bear them (internalizing otherwise external costs). By doing so, we encourage the choosing of the efficient result, and sometimes the fair result l. In Ploof v. Putnam, the dock owner unmoored the ship illegally at his dock in a storm and the Ploof’s sustained injuries on the ship. Sometimes docking illegally is a necessity in an emergency d. Intentional Infliction of Emotional Distress i. Prima Facie Case 1. Conduct that is outrageous 2. That is undertaken for the purpose of causing the victim emotional distress to severe it could be expected to affect adversely his physical health 3. That causes such distress ii. Dickens v. Puryear

1. 31 year-old Dickens shared sex, drugs, and alcohol with 17-year-old defendant’s daughter. Defendants lured plaintiff to rural North Carolina. Defendants identified themselves and the wife ran away crying because she didn’t want to see that SOB. Earl pointed a pistol at plaintiff and called his accomplices who, who proceeded to beat the plaintiff to semi-consciousness. After a couple hours, he was told to go home, rip the phone off the wall, and leave or be killed. 2. HOLDING: Factual showing on the motions for summary judgment were sufficient to indicate that the plaintiff may be able to prove a claim for intentional infliction of mental distress. 3. Threats for the future are actionable as IIED. 4. Stanback: Liability arises under this tort when a defendant’s conduct exceeds all bounds usually tolerated by decent society and the conduct causes mental distress of a very serious kind. 5. Conduct was willful, malicious, deliberate, and purposeful, acted recklessly and irresponsibly with full knowledge of the resulting consequences. 6. 2nd Restatement – IIED – One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another s subject to liability for such emotional distress, and if bodily harm results form it, for such bodily harm. 7. Statute of limitations ran out for assault and battery (1-year) 8. IIED – 3-year statute of limitations 9. However, the assaults and batteries can be considered in determining outrageous character of the ultimate threat and the distress caused by it. iii. Littlefield v. McGuffey 1. Littlefield (plaintiff) sued McGuffey (defendant) claiming that he denied her rental housing because he boyfriend, the father of her daughter, was not of the same race. After removing her belongings from the apt and telling her is was being rented to someone else he called her and left several degrading messages. He also made harassing and degrading phone calls to Littlefield's sister. Later he tracked her down at her new residence and left a note threatening the life of her boyfriend. These events have caused her to experience numerous episodes of disquiet and fright and to fear for the safety of her daughter. Defendant denies these allegations and claims that he refused to rent her the apt because she was a poor credit risk and had a history as an undesirable tenant, but presented no witnesses to substantiate that claim. Her witnesses, including her former landlord contradicted everything he alleged so his story was dependant on his less than wonderful credibility. She sought relief under the Equal Opportunity in Housing provision of the Civil Rights Act of 1866 and the Fair Housing Act. She also raised a claim for IIED under Illinois common law 2. Jury found McGuffey liable and awarded $50,000 in compensatory damages and $100,000 in punitive damages iv. Notes 1. IIED follows the assault prima facie case, but deviates because the defendant intentionally induces the plaintiff an apprehension of harmful contact that will take place in the indefinite future, rather than immediately 2. Statute of limitations: Substitute or complement? a. IIED is intended to supplement, not supplant existing torts. A claimant who is distressed as a result of actions constituting battery must seek compensation for that distress within the time limits set for battery actions b. Recognition of IIED actions resembles a finding of malice of reckless indifference that justifies an imposition of punitive damages

c. Women arranged for defendants to take in her horses on their farm. They took the horses for slaughter and covered it up. Even though they could have been held for tort of conversion, she could sue for IIED 3. Outrageous a. Defined as going beyond all possible bounds of decency leading someone to exclaim outrageous. Very blurry line. b. Insults, indignities, threats, annoyances not IIED. Some courts see it as for the jury, others for the judge 4. Proof of emotional distress a. So severe that no man could be expected to endure it 5. Intent and recklessness a. Plaintiff must offer proof to establish intent b. In its standard formulations, it also permits attachment for reckless infliction of severe emotional distress through outrageous conduct v. John Doe v. Diocese of Nashville 1. Edward McKeown became a Roman Catholic priest in 1970 and began working for Diocese of Nashville. Over 19 years, he worked for parishes across Tennessee. In 1973, minor boy informed Father Richards that McKeown had plied the boy with alcohol and molested him. In July 1986, parent told Bishop Neidergeses about he incident. McKeown admitted to the abuse. Father Giacosa sent him to St. Luke Institute for evaluation. Diagnosed with pedophilia. McKeown admitted that he had sexual contact with over 30 boys during the 14 years. Average age 12 to 13. Contact with victims made through the parish. Giacosa denied having knowledge of past abuses until the criminal trial. He testified that Niedergeses never brought McKeown’s predation to his attention. McKeown sent to institute of living in CT. Diocese was told that he should not have any further contact with children, and he should have follow-up treatment regularly. He was prescribed medicine. Upon return McKeown heard children’s confessions and spent time with children in overnight lock-ins. McKeown invited boys to play with his toy train. Father Mankel revealed to Niedergese that a parent told him McKeown had molested her 14-year-old son. McKeown presented a boy with a condom at an xmas party, and was removed of his priestly faculties as well as his ability to reside inside the diocese. In 1990, Niedergeses was told by McKeown that he was working for the Juvenile Court Clerk, where he would come into contact with minors. McKeown was paid in monthly installments by the diocese, and his meds were subsidized by the diocese. Even after his departure, he made contact via youth programs, teach classes at his parish, attend football games at the parish high school accompanied by an adolescent boy. Molestation continued from 1990 – 1996. Bishop Kiec was notified by a parent of a molestation and did nothing. In 1991 and 1995, McKeown met John Doe 2, a boy that lived in his trailer park community. McKeown befriended two families and molested their boys. 2. ISSUE: Must reckless infliction of emotional distress be based upon conduct that is directed at a specific person? 3. HOLDING: No, can be directed at a 3rd party 4. By not acting more forcefully in reporting him to the police and removing him from the diocese sooner, the gross misconduct for the 20 years living up to this is enough to create a prima facie case for reckless infliction of emotional distress. Even if its not against the plaintiffs per se. 5. DIRECTED AT REQUIREMENT - 2nd restatement, section 46 – Where such conduct is directed at a 3rd person, the actor is subject to liability if he

intentionally or recklessly causes severe emotional distress to a member of such person’s immediate family who is present at the time 6. Plaintiff must bear a close relation to the 3rd party 7. The defendant is guilty of reckless, willful, or wanton misconduct only if he was conscious of the risk or had specific reason to know about it and proceed without concern for the safety of others. The defendant does not intentionally harm another, but he intentionally or consciously runs a very serious risk with no good reason to do so. He is guilty of “conscious indifference” as the courts say vi. Notes 1. Recklessness and Known Vulnerabilities a. If an actor preys recklessly on another’s known vulnerability, it may become outrageous. b. For example, a pharmacist getting a women arrested for fraud in reckless disregard in what the pharmacist knew to be a woman’s vulnerable condition 2. Defenses a. A church member who consorted with prostitutes was outed in front a church congregation, and he cannot bring IIED because he consented to the normal practice by going to church regularly b. Hustler v. Falwell – Descriptions or depictions of public figures can never be deemed outrageous 3. Prima facie tort a. In New York, elements are: Intentional infliction of emotional harm, resulting in special damages, without excuse or justification, by a series of acts that would otherwise be lawful. vii. Jones v. Clinton 1. Outrageous Conduct Four Markers: a. Abuse of power or position, exploiting a position of dominance b. Taking advantage of or emotionally harming a plaintiff known to be vulnerable c. Repeating or continuing acts that may be merely offensive and thus tolerable when committed only once d. Committing acts of physical violence or economic harm to a person or property in which the plaintiff is known to have a special interest 2. Severe Distress a. Jones Factors b. Did not miss work c. Remained in job d. Never complained to supervisor e. Never consulted supervisor f. Never consulted a therapist g. Subsequent social encounters h. Did not suffer consequences in her marriage i. (Jones lawyers can say that these elements are not requirements of severe distress. viii. Hamaker v. Ivy 1. Hamaker, with an IQ of 75-100 and a speech impediment, hung around the Calhoun County courthouse. Teresa Ables found out he was telling townspeople that he was going to pay her $100 to have sex with him. She and Ivy made an invalid arrest warrant for Hamaker charging sexual harassment. Sheriff Johnson delivered the warrant, telling him to not bother Ables or the next will be real. For 30 minutes, plaintiff went around to witnesses and found it to be invalid.

Hamaker quickly saw a doctor, who found that he had increased blood pressure and heart rate. He saw doctors for various ailments for a little over a year. 2. HOLDING: defendants’ conduct extreme and outrageous was not enough to affirm a judgment for intentional infliction of emotion distress or outrage 3. Element 2 – Outrageous Conduct a. Period of time in which it took place – 30 minutes not a lot of time b. Relation between plaintiff and defendant c. Defendant’s knowledge that plaintiff if particularly susceptible to emotional distress by reason of some physical of mental peculiarity. – No evidence of emotional sensitivity d. Defendants were officials of county government – But they didn’t have influence over him more than any other citizen 4. Element 4 – Emotional Distress a. Trouble sleeping and increased heart rate are normal signs of anger, and do not rise to a high level to make out the prima facie case II. Negligence a. Duty of Reasonable Care Negligence is the most commonly relied on by accident victims to obtain redress from an alleged wrongdoer.

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Prima facie case - Actor A is subject to liability to other person P for negligence if: o P has suffered an injury o A is owed a duty to a class of persons including P to take care not to cause an injury of the kind suffered by P o A breached that duty of care o A’s breach was an actual and proximate cause of P’s injury The injury element - Most obvious injury is physical harms o The easiest way to satisfy the injury element - First is bodily harms - Second is damage to tangible property like land, structures, and personal possessions - Loss of wealth is also an injury under negligence - Serious emotional distress is an injury in its own right o Raises questions of duty The duty element and general duty of reasonable care - The duty element requires a negligence plaintiff to establish that the defendant owed her, or a class of persons including her, an obligation to take care not to cause the type of injury that she has suffered. - An injured plaintiff has a cause of action against a defendant in negligence only if the defendant’s carelessness (negligence) amounts to a breach of a duty of care owed to a plaintiff or class of persons including the plaintiff. - To whom is Duty of Care owed? - By Whom? - Under what conditions? - In some contexts, the defendant owes a duty to any person whom, at the time of acting, she could reasonably foresee injuring were she to conduct herself carelessly. - In other contexts (qualified duties), the duty of care does not run to everyone for whom consequence of acting carelessly but only to subsets of potentially injured parties.

The unqualified duty to conduct oneself with reasonable care for the person and property of others - Easy duty cases – cases that neither litigants will spend much time on because all agree that the person being sued owed reasonable care to the plaintiff. - Ex. Where the defendant carelessly pursued an affirmative course of conduct that cause the plaintiff physical harm - Difficult duty cases arise out of allegations that the defendant’s carelessness consisted of a failure to act for the benefit of the plaintiff, or that the defendant caused some other kind of injury besides physical harm. English tort law - English tort law had recognized an array of situations giving rise to a duty to take reasonable care against causing physical harms to others. - If a person contracts with another to use ordinary care or skill towards him or his property the obligation need not be considered in the light of a duty; it is an obligation of contract - Whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill in his own conduct he would cause injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger - Reasonable foreseeability The Evolution of Duty Rules - Winterbottom v. Wright: The Privity Rule o Infamous instance of a rule declining to recognize a duty to regulate one’s conduct with care not to cause physical harms to another o Wright built carriages. Contracted with English postmaster to provide carriages for mail. Postmaster contracts drivers from another company. Winterbottom was lamed when a wheel collapsed. He sued Wright, arguing he had breach a duty of reasonable care to ensure the soundness of his coaches. ARGUMENT REJECTED o Necessary to reject Winterbottom’s claim lest the court invite an infinity of actions o The manufacturer of the wheel could not foresee the injury - Thomas v. Winchester – Imminently dangerous products o NY Court of appeals permitted plaintiff to proceed against a company that mislabeled a bottle of poison as medicine. Winchester claimed that under Winterbottom they had no duty of care because they sold it to distributor…pharmacist…customer…Rejected argument because the death or harm of a patent is the inevitable consequence of selling under false label. o Defendant’s duty arose out of the nature of his business and the danger to others incident to his mismanagement - Loop v. Litchfield o Defendant manufactured a wheel that was missing a portion of the rim so they patched it with lead. Defendant sold it to Collister who leased the frame to loop five years later who died. Court of appeals used winterbottom rule in saying no duty of care necessary - Losee v. Clute o Manufactured steam boiler for use in a paper mill defendant knew to be located next to other buildings. Boiler blew up, damaging Losee’s property. Court ruled that, under Winterbottom, manufacturer of boiler didn’t know it was being placed in a concentrated location, and therefore has no duty of care. - Devlin v. Smith o Painter killed because of faulty scaffolding. Court invoked Thomas. Poorly constructed scaffolding is imminently dangerous to human life, defendant owed duty of care - Torgesen v. Shultz o Domestic servant lost an eye after bottle of carbonated water exploded after put on ice and hit his eye. Thomas invoked…Bottle of aerated water is an inherently dangerous instrument.

o Statler v. George A. Ray Manufacturing Company  Negligent manufacture of a steam driven coffee urn that exploded and injured plaintiff. Inherently dangerous MACPHERSON v. BUICK MOTOR CO FACTS: Defendant manufactures automobiles. Sold an auto to a retailer who sold it to plaintiff. On of the wheels was defective and the car collapsed. The wheel was not made by defendant but bought from another manufacturer. There is evidence that the defects could have been discovered by reasonable inspection, but it was omitted. ISSUE: Whether the defendant owed a duty of care and vigilance to anyone but the immediate purchaser. HOLDING: Affirmed lower court with costs Buick relying on Winterbottom – Your duty doesn’t run to the world. Your duty runs to those whom you are in privity (Contractual relationship). No contract with future users of the product. Distinction between winterbottom and the privity requirement. Cardozo did not issue opinion as an exception to winterbottom. Replacement with a rule. GENERAL DUTY OF REASONABLE CARE THAT IS THE BACKGROUND FRAMEWORK FOR MOST NEGLIGENCE CARE. Options: 1. Agree with buick’s privity argument 2. Uphold verdict for plaintiff by overruling loop and Losee and by rejecting Thomas’s implicit embrace of Winterbottom on the ground that the privity rule lacks justification. 3. Uphold the verdict for plaintiff by articulating a principle that reconciles the cases and explains why the privity rule should not apply in this case A duty of care runs whenever: 1. The nature of the product alerts the manufacturer that, if carelessly made and not inspected, it is likely to pose a danger; 2. The manufacturer knows or should know that the dangers of personal injury posed by the product, if carelessly made and not inspected, extend to other persons other than those in privity with the manufacturer; 3. The manufacturer can expect that the product will not be inspected for safety by anyone prior to its use by persons not in privity with it Privity is normally not a necessary predicate for the recognition of a duty in the law of negligence with respect to liability for injuries caused by carelessly produced products. A broad range of activities carry with them a duty to be vigilant of others’ physical well-being that: o Is grounded in the view that bodily injury to another is a foreseeable consequence of pursuing those activities carelessly, and o Tend towards being general in scope (Extends to nearly all those who might foreseeably be injured ANALYSIS: Thomas v. Winchester – Poisonous bottle put human life in imminent danger. Loop: The risk was not imminent because the wheel lasted five years Scaffolding is not inherently a destructive instrument. It becomes destructive only if improperly constructed

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Whenever one person supplies goods or machinery for the purpose of being used by another person under circumstances that ordinary sense would recognize that unless he used ordinary care there would be danger of injury to the person whom the thing is being supplied. A duty arises to use ordinary care as to the condition or manner of supplying the thing. Expanding Winchester – If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Liability of the manufacturer of the finished product. If he is negligent, liability will follow. o The manufacturer must fail in HIS duty of inspection The nature of an auto gives warning of probable danger if construction is defective The defendant was not absolved from duty of inspection because it bought wheels from a reputable manufacturer. It is responsible for the finished product. It was not at the liberty to put the finished product on market without testing it. The more probable the danger, the greater the need of caution

NOTES: - Cardozo’s rejection of Winterbottom helped bring about the rejection of the privity rule in state courts, and also helped pave the way toward the development of modern doctrine of strict products liability - Users versus bystanders – Winterbottom would not permit a bystander to sue a manufacture for negligence in a car accident, but Cardozo and many other jurisdictions would uphold recovery

Qualified Duties of Care 1. Carelessly permitted or maintained hazardous conditions on property in his possession (Premises liability) 2. acted without reasonable care for the plaintiff’s economic prospects (Pure economic loss cases) 3. unreasonably failed to act for the benefit or protection of the plaintiff (affirmative duty to rescue) 4. Engaged in affirmative misconduct so as to risk physical harm to others, yet courts impose a limit on duty owed because pressing reasons of policy warrant ad hoc limitations Premises Liability: Summary - Invitees…licensees…trespassers - Claims for carelessness in maintaining unsafe physical premises that cause physical harms brought against property owners and occupiers of the premises are treated as a distinct class for purposes of duty analysis - Where there is a duty of responsible care owed to the plaintiff, or some lesser level of duty, depends on the status of the plaintiff with respect to the property (invitee, licensee, or trespasser) - Invitees are owed a duty of reasonable care. Licensees are owed a lesser duty that requires a possessor who is or should be aware of the licensee’s presence to disclose dangerous conditions of which the possessor is actually aware but that licensees could not reasonably be expected to observe or discover. Trespassers are owed no duty of care (though a possessor owes a duty not to intentionally harm them (Invitees are in a business context, licensees are majority…Home entering) - About half the states have abandoned the invitee/licensee distinction, holding instead that anyone on the premises by express or implied consent is owed a duty of reasonable care. About 10 jurisdictions follow the California Supreme Court’s decision in Rowland and have abandoned the entire status-based framework Even where special duty rules apply to premises liability cases, they are not applied where injury results from a risky activity that happens to take place on the property but has nothing to do with the condition of the premises. NOTES: - Plaintiff status categories

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o Like a licensee, an invitee enters the property with consent of the possessor. Because a customer is invited into a store for the material benefit of the owner, they are owed a duty of reasonable care for their safety Ownership, Possession, and Occupation o A person need not own property to be treated as a possessor. A tenant who rents an apartment is a possessor of property under tort liability Hazardous conditions and activities o Special duty rules in premises liability are designed to address dangerous conditions on property rather than dangerous activities on the property. Farmer and tractor going at unreasonable speed hits person intentionally walking onto property. No premises liability, because it was an action not an existing problem Trespassers o A trespasser is anyone who intentionally enters the property without permission. o If H loses his way hiking and goes onto P’s property and gets caught in a bear trap, he cannot sue for carelessness or failure to warn of its presence Exceptions to Rule for trespassers o General rule of no duty of care applies only to adult trespassers. o For children, the land possessor must have reason to foresee that children might enter the property and be endangered by the condition o Owners of pools must build a fence to prevent drowning Licensees versus invitees o Licensee – a person who visits the residence of another for a social function o A plaintiff who stops to use a gas station restroom is an invitee if the jury determines that a reasonable person would perceive that the station invited the public to use its restrooms irrespective of purchase Rowland v. Christian o Abolished categories into a general duty of care for reasonable persons, regardless of status o Whether the possessor failed to act with reasonable care for the well-being of any person who is injured by dangerous conditions on the premises. Liability to Non-entrants o What about injuries caused by conditions on land to persons not on the land? o C is biking down a public street and knocked off his bike by a low-hanging branch on D’s property o D is not liable to take care to protect against harms caused by natural conditions. Possessor may have a duty to ensure that the trees on his property don’t injure passenger son public roads with lots of traffic. o Man-made conditions do not adhere to the duty rule Municipal liability o NYC faced thousands of sidewalk injuries per year. Under city law, the city is not liable unless the pothole was reported 15 days before the accident. Big Apple Pothole and Sidewalk Corp. to identify the potholes o City enacted a statute that only people whose property borders the sidewalk may submit claims

Affirmative Duties: Duty to Rescue - Claims that the defendant failed to act in a situation where action on his part would have prevented plaintiff’s injury. - Allege negligence in the form of careless nonfeasance rather than careless misfeasance. - The general duty to take care not to cause foreseeable physical injury or property damage applies to misfeasance. - The absence of duty of care attached to nonfeasance, like an indifferent passerby who fails to rescue a drowning man

OSTERLIND v. HILL FACTS: Action brought by plaintiff as administrator of Osterlind’s estate to recover damages for the conscious suffering and death of his intestate. Boat hire let his son go out on a canoe while drunk, they made calls for help, then proceeded to drown PROCEDURE: - 4 counts o Willful, Wanton, or Reckless Conduct - Defendant was engaged in the business of letting for hire pleasure boats and canoes in Wakefield, that it is only the duty of the defendant to have a reasonable regard for the safety of persons whom he lets the boats and canoes. Defendant let for hire, in disregard of consequences, a frail and dangerous canoe to intestate and Ryan, who were intoxicated and unfit to use the canoe. Intestate and Ryan went in canoe and it overturned, with the two hanging on and yelling for help for a half hour before intestate drowned., As a consequence of the defendant ignoring the calls the intestate suffered great anguish and physical suffering. o Negligent conduct is alleged as well o Amended declaration noted that the two were intoxicated and incapacitated to enter into a valid contract or exercise care for their own safety that that intestate’s condition was involuntary - Trial court sustained demurrers and reported the case for the determination of the court ISSUE: - Did the defendant have a duty of care towards the boys drowning in the lake? HOLDING: No. ANALYSIS: - The intestate was not in a helpless condition. He was able to take steps to protect himself. - Defendant violated no legal duty in renting a canoe to a man in an intoxicated condition - Allegations of involuntary intoxication relating to contributory negligence become immaterial. The failure of the defendant to respond to the outcries is immaterial. - Frail and dangerous can characterize all canoes. It was not alleged that the canoe was in need of repair THEOBALD v. DOLCIMASCOLA FACTS: Plaintiff’s decedent Sean Theobald, was in a second floor bedroom of his house five 5 friends. The decedent produced an unloaded revolver and ammunition, examined by all friends. Discussion turned to talked of a friend dying playing Russian Roulette. Decedent indicated that he’d like to play. Sean put the gun to his head and pressed the trigger several times, checked the cylinder, and tried a few more times before it went off, killing him. Several attempts were made and the others just sat around and watched. PROCEDURE: - Trial judge determined that if none of the teens had actively participated, they had no duty to stop the decedent, therefore summary judgment was entered ISSUE: Whether any of the defendants, if they were mere observers to this tragic event, can be held civilly liable to plaintiffs. HOLDING: No, There is no common law duty owed by defendants to the decedent if defendants were mere observers of the shooting. Reversed and remanded.

ANALYSIS: - If the game was a joint endeavor, each of the participants may be held responsible, although most cases in this area involve criminal behavior. - A line has been drawn by the courts between active participation and merely one who instructed the decedent how to play the game - Dictum: Inducing an individual to engage creates foreseeable harm to engender potential civil liability. - Wytupeck: Duty arises out of a relation between particular parties that in right, reason and essential justice enjoins the protection of the one by the other against what the law by common consent deems an unreasonable risk of harm, such that it is reasonably foreseeable. - Defendant’s own negligence would probably preclude recovery even if it was a common enterprise - No encouragement of participation - 2nd Restatement – With regard to rescues, it has been stated that the general rule is that there is no liability for one who stand idly by and fails to rescue a stranger o Exceptions to rule are police-arrestee, physician-patient - Where there is no duty there is no liability Notes 1. Ames proposed that modern tort law could align itself with morality by recognizing a limited duty to rescue others from imminent physical danger where performing the rescue would cause little to no inconvenience to the rescuer 2. Epstein and liberalism – The moral duty to rescue strangers should not be recognized by law. It would violate principles of liberalism if it required more than refraining from injuring others 3. Heyman – Classical liberalism recognized a duty on each citizen to assist government officials in maintaining order and protecting rights of citizens 4. Vermont enacted principles to render aid to those in peril under threat of fine or prison. “Good Samaritan law”. 5. Common law exceptions a. Imminent peril to plaintiff caused by defendant i. When an actor knows he has by his own conduct caused the victim to be injured and at risk of further injury, duty to make reasonable efforts to prevent victim form suffering further harm ii. Panagakos – No basis of duty for friend of an 18-year-old to take steps to prevent him from being run over after walking in the street intoxicated after they helped him gain entry into a bar using fake IDs b. Voluntary undertakings i. Once the rescue is voluntarily undertaken, the rescuer owes a duty to a victim to perform the rescue with reasonable care ii. Wilmington Gen. Hospital v. Manlove 1. Hospital customarily accepted emergency patients undertook to take care of all patients iii. Once a rescue is undertaken, the rescuer owes a duty to the victim to perform the rescue with reasonable care c. Good Samaritan immunities i. Immunizes people who undertake rescues from liability for negligence ii. Does not apply to police or fire personnel on duty. d. Special relationships i. Carrier-passenger ii. Landlord-guest iii. Farwell – Special relationships based on the facts 1. After a 16 and 18-year old consumed some beer they approach some young women. They were attacked and Farwell was beaten badly. Seigel drove him

home and left him in the back seat after not being able to revive him. He was discovered in the morning but died. “Companions on a social venture” iv. Some states have enacted statutes placing a duty on certain individuals who know that a child has suffered injuries caused by abuse, to report their suspicions to authorities Non-feasance Issues 1. Agency/Action – Who is acting? Question of responsibility 2. Context of dependence – Careful attention to the facts 3. Importance of special relationships

NOTES - Special obligations of physicians? o Rejecting claims of negligence brought on behalf of victims of a school shooting against parents, fellow students, and teachers of the shooters - Scope of Tarasoff Duties o Mental health professions are in a unique position to get into the head of a person, judgments of predictability of violent behavior o The physician need not be actually aware that the patient is contemplating an attack on someone, as long as the physician knows of the risks o County that released a juvenile offender with a propensity to commit violent assaults to his mother not liable to parents of minor killed by offender; minor was not identifiable as required by Tarasoff, and county had no duty to issue general warning to mother’s neighbors - Contagious diseases o Physicians who are aware of disease outbreaks must notify public health officials o Physicians aware that a nurse may have contracted hepatitis from accident needle-stick owed duty of care to nurse’s boyfriend, who contracted hepatitis from nurse, to convey accurate information about duration of latency period for hepatitis o Physician who diagnosis patient with Rocky Mountain Fever has a duty of care to warn patient’s family of tick exposure - Forgotten keys o Driver D carelessly leaves her keys in the car ignition, enabling T to steal the car; T proceeds to drive into P. States are split in assigning duty. Some say T’s misconduct cancels out D’s carelessness. MCGUIGGAN v. NE TEL. CO. FACTS: The M’s held a grad party for Daniel, their 18-year-old son. Most of the guests were much older relatives, but there were a couple friends. Several people were acting as bartender serving alcohol to guests. Mr. M testified that he might have given Magee a drink, but didn’t see him drinking at the party or know how many he had. Mrs. M spoke to Magee before he left and he seemed normal. Magee admitted to drinking 5 umcokes. He left the party with Daniel and three other young guests to drive a youngin home and Daniel felt sick so he leaned his head and upper body out the window of the car and smacked himself against a cement post maintained by the telephone company to mark an underground conduit. Daniel died at the hospital. Magee registered .140 BA level 3 hours after the incident. It was enough to be unmistakably drunk during the incident. No evidence he ate dinner or when the last drink was. He pled guilty to operating under the influence. PROCEDURE: - Claim against M’s based on common law principle that a social host violated a duty to an injured third person by serving alcohol to a guest whose negligent operation of motor vehicle caused the injury

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Suit initially brought by Daniel’s estate v. NE Telephone, alleging negligent placing of the poll. NET brought in elder M’s by third party complaint “social host theory” (To shift responsibility away from defendant) Considerations o Whether social host had foreseeable risk of injury to third party resulting from intoxication? o If so, host would be liable

ISSUE: Whether a social host who furnished alcoholic beverages to an adult guest maybe be liable for a death caused shortly thereafter by that guest’s negligent operations of a motor vehicle while under the influence of alcohol. HOLDING: AFFIRMED. NO, Based on the facts of this case, the social host is not liable ANALYSIS: - Drinker’s voluntary consumption alone is “proximate” cause of the third party’s injury and host won’t be liable for injuries caused by his intoxication - With licensed vendors, “proximate cause theory fails” o Adamian: Court rejected arguments that liability could be imposed only by statute and drinker alone responsible for consequences o Do not require proof that vendor knew that intoxicated customer would drive a motor vehicle - Differences between commercial establishments and a home o Tort liability may offset commercial incentive to encourage drinking o Commercial has more experience in identifying intoxicated drinkers o Can better shut off consumption without embarrassment o Insurance against loss - Cases where social host is liable (Social host liability) o Coulter: Social host has duty to refuse to furnish another drink to a visibly intoxicated person if they constitute a foreseeable risk to injury 3rd persons o Kelly: Social host who serves liquor to a guest knowing he is intoxicated and will be operating an auto, is liable for injuries on third party - Easier to find violation of standard when intoxicated guest is underage or when a person was obviously intoxicated - No evidence M’s knew Magee was drunk at any time in their home - Evidence of Magee’s BA level does not raise a factual dispute…there was no knowing what his condition was, when he had his last drink. Lynch concurring - Jury decides what facts are known to the host and can analyze host’s conduct - Host is not a commercial setting where they can get insurance - Is it necessary to expose a person’s equity when serving alcohol to guests in their house? - Imposing liability on the host partially excused the drunken driver from the consequences of his own acts Notes - More on McGuiggan o The estate only brought suit against New England Telephone, alleging negligence in placing the cement post too close to the side of the road - Premises liability revisited o Landlords are responsible to take reasonable steps to prevent attacks on tenants - Gun litigation o Complex suits alleging negligence that enables wrongful acts of others have been brought by gunshot victims against manufacturers of handguns on the ground that the manufacturers’

careless marketing and distribution practices have enabled the victim’s shooters to more easily obtain handguns. Skeptical reception o Usually, gun manufacturers owe no duty to shooting victims to reduce their risk of guns sold via retail centers to criminal users DUTY EXEMPTIONS STRAUSS v. BELLE REALTY N.Y. 1985 Justice Kaye FACTS: A failure of Edison’s power system left millions in darkness for 25 hours in NYC. Strauss resided in a Queens apartment. Edison provided electricity to the common areas of the building pursuant to a contract with the landlord Belle Realty. Plaintiff descended the stairs to retrieve water (the electric water pump was not working) he fell on the darkened defective stairs sustaining injuries PROCEDURE: - Plaintiff alleged negligence against the landlord for failing to maintain the stairs or warn of their dangerous condition, and negligence against the utility in the performance of its duty to provide electricity. - Plaintiff moved for summary judgment against Edison to establish care of duty to plaintiff. - Edison cross-moved for summary judgment dismissing complaint maintaining it had no duty to a noncustomer - Court denied Edison’s motion to dismiss - Appellate division reversed and dismissed complaint ISSUE: Does Edison owe a duty to the plaintiff? HOLDING: No, Appellate decision affirmed and complaint dismissed ANALYSIS: - A defendant may be held liable for negligence only when it breaches the duty owed to a plaintiff. - Duty in negligence cases is not defined by foreseeability or privity of contract - Fixing the orbit of duty to limit the legal consequences of wrongs to a controllable degree and to protect against crushing exposure to liability - Policy plays an important role. An orbit of duty based on public policy may result in the exclusion of some who may otherwise have recovered in tort - Permitting recovery to plaintiff would violate the orbit of liability - A fact-finding hearing to establish the probabilities because the impact is obvious 1. 2. 3. 4. Issue of crushing liability Does a public utility have an important place with respect to liability Privity based argument. – Moch Cheapest cost avoider – Calabresi – Seek to identify the party who is in the best position to avoid the accident at the least cost. In this case, the injured party was in a better position to avoid the accident than was Con Edison.

Connection between Strauss and Winterbottom – Distinguishes between misfeasance and nonfeasance Strauss and Moch differences: The water company did not start the fire…but the Edison injury was a direct result of the blackout caused by Edison.

Meyer dissents - Conclusion based on assumption of far-reaching catastrophe - Are the plaintiff’s interests entitled to legal protection from the defense’s conduct? - Legislative regulation here with fixing the rate schedules, which incorporate the rule that liability be limited to damages arising from utilities gross negligence…that is satisfied here - Remedies: shareholder reduction in equity, increase in rates to pay judgments against it - Counterintuitive: The more persons injured, the less the responsibility for the injuries occurred Moch v. Rensalear Water Co. - Cardozo ruled differently here than in MacPherson. Privity is used here but not in MacPherson. NOTES: - Macpherson to Moch: Back to Privity? o Individual citizen are not parties to, or intended to be beneficiaries of, the contract between the city and the water company, and hence Moch had not right to sue for breach of contract. The water company’s carelessness amounted to nonfeasance o Absent privity, a party such as Moch could not sue for physical harm proximately caused by the carelessness of a utility o However, it is difficult to see what renders the water company’s failure to act so dramatically different from Buick’s carelessness in MacPherson. - Utilities o Regulators often conclude that it is desirable to limit utilities’ liabilities, particularly for economic loses flowing from interruption in services. If heavy regulated industries are entitled to a break from tort liability, what happens if they become unregulated? - 1977 NYC – Citywide blackout o Thousands trapped in elevators and subways. Traffic signals inoperable. Planes lost sight of runways. Looting. Con Edison was freed from a great deal of the economic liability suffered as a result of the blackout. Why did it deny Strauss’ claim? - Breadth of the Tort Matter o There is something counterintuitive about a ruling that says “because the tortfeasor has committed substantial and widespread damage by means of its carelessness, we must find ways to limit its liability” - Duty as element versus no-duty as liability exception o Heaven v. Pender ruling – Interpreted with Con Edison, it is not obligated to take care to prevent unnecessary blackouts and the physical injuries one might expect to accompany a blackout o Con Edison could not have foreseen that its carelessness may cause harm to Strauss - Threat of “Crushing liability” o Hamilton v. Beretta: Group of plaintiffs who had been shot by third parties with illegally obtained handguns sued gun manufacturers on the theory that the handguns were marketed to make it easier for the shooters to obtain them unlawfully. REJECTED. Duty proposed by plaintiffs would have extended to thousands of gun victims - Calabresi and Cheapest Cost Avoider o The economic issue is whether dollars spent on preventing accidents are spent efficiently, achieving the efficient mix of precaution-taking and injury o WHO is in the best position to take the precautions? Tort law should aspire to assign liability to the cheapest cost avoider: the person or entity who can identify and adopt the most efficient precaution more readily than anyone else. o Edwards v. Honeywell: Widow of a firefighter who was killed when falling through the floor of a burning building sued the company that provided the fire alarm service to the house owner. The alarm company carelessly failed to contact the firefighter’s unit in a timely manner, rendering the floor weaker. NO DUTY OF CARE. - Prosser and Sacrosanctity of Duty

o Duty is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy that lead the law to say that the particular plaintiff is entitled to protection o Courts cannot solve disputes simply by invoking the word duty. You must articulate reason to support that allegation o Second claim: the duty element only seems to pose a question about the existence and scope of a defendant’s obligation to be vigilant in some aspect of the plaintiff’s well-being. Duty issue is different question of whether, on balance, it would be good for society to impose liability on the defendant, whether the sum total of policy considerations warrant the attachment of liability. THE BREACH ELEMENT ROGERS v. RETRUM Ariz.App. 1991. FACTS: Rogers, a 16-year-old high school student anticipated a good grade on his electronics test, but was publicly given a failing grade. When asked why, Retrum said, “Because I don’t like you.” Rogers left class with Russo and got into his car. Russo drove recklessly and lost control while driving 90 mph around a curve. Rogers was ejected and sustained injuries. Retrum later admitted that Rogers passed the test and he just wanted to make him feel what it was like to fail. ISSUE: Does Rogers have a case for negligence against the district and Retrum? BREACH OF DUTY OF REASONABLE CARE? HOLDING: No, trial court affirmed. There was a duty, but no negligence ANALYSIS: - No evidence Retrum’s words to Rogers affected Russo’s operation of the car - Target: “open campus policy” Defendants allegedly breached their supervisory duty to plaintiff and exposed him to the risk of highway injury when he should have been in class - Defendants owed Rogers a duty of reasonable care - Defendants argue that Russo’s reckless driving was so unforeseeable, the district was not duty-bound to guard against this. No o It is not unforeseeable that mobile high school students could be exposed to the risk of highway accidents after leaving school. o If duty entails foresight and prevention, it is not beyond the scope of duty of reasonable care - Unreasonable risk o The school did nothing to increase the general risk of auto accidents o The standard of reasonable conduct did not require the defendants to take precautions against that risk - To impose the duty on the school district, it would force the school district to ensure the safety of students driving on campus. That would be an unreasonable policy Three grounds for affirming: 1. No duty 2. Duty owed but rule as a matter of law that school did not breach that duty by maintaining open campus policy (Duty is a legal question, Breach is a fact intensive question) – taking breach away from jury 3. Duty owed and leave to jury to determine whether open campus policy was reasonable (or that Russo’s careless driving was a superceding cause) Breach of duty - Caliri v. N.H. DOT

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o Standard form of breach instruction (Deviation from that degree of care that would be exercised by the reasonable person of ordinary prudence) Pingaro v. Rossi o Basic contrast between fault-based liability and strict liability (plaintiff needs only to prove that dog was owner by D and that it bit her while she was lawfully on the premises Jones v. Port Authority o Reasonable care v. extraordinary care o Illustrates differing standards within liability Beausoleil v. Natl. R.R. Passenger Corp. o Amtrak owed lesser duty of not causing injury through willful or reckless conduct

Spectrum of views: Least onerous  Most onerous Beausoleil  Strauss (Ch.2)  Caliri  Jones  Pingaro PINGARO v. ROSSI N.J.Super.App.Div. 1999. FACTS: Pingaro was meter reading for NJNG. She arrived at Rossi’s house and her computer beeped that there was a bad dog at this house. She had never been to Rossi’s home before, knocked on the door, rattled the gate and her keys and yelled, “gas company” to no response. She unhooked the gate and immediately was attacked by Rossi’s two dogs. She sustained bites that needed stitches, got physical therapy, couldn’t work for over a month, and suffered anxiety and depression and scars. ISSUE: Was Rossi negligent? BREACH? HOLDING: Yes ANALYSIS: - Rossi had a large beware of dog sign on his gate. Rossi had talked to several meter-readers over the years and it had never been a problem. - Plaintiff fulfilled the three elements necessary to establish Rossi’s liability under the statute N.J.S.A - Rossi was the owner of the dog, the dog bit the plaintiff, and bite occurred when plaintiff was on owner’s property CALIRI v. NH DOT FACTS: Mr. Hobart was a passenger in an auto when the car hit a patch of ice on Hampshire Road, a class II highway in Derry, NH. Plaintiff argued that the DOT had a duty to maintain the road for the safety of its travelers. It was required to conduct ditching on private property abutting Hampshire Road. Water flowed from the ditch onto the road, forming ice, which caused an accident resulting in Hobart’s death. PROCEDURE: - Jury returned a verdict for the state of NH. - Plaintiff appeals, arguing that the trial court erred in its jury charge ISSUE: Did the trial court err in its jury charge? BREACH? HOLDING: No. Trial court affirmed ANALYSIS:

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Plaintiff argues the trial court erred when it refused to give instructions involving state’s duty owed to travelers on the roadways, giving the jury no guidance. DISAGREE Court was under no obligation to give the instructions, because that standard of care is not supported by law The court need not use identical language requested as long as the court adequately states the law as applied in the case Instructions adequately presented the law of negligence

JONES v. PORT AUTHORITY OF ALLEGHENY COUNTY FACT: Jones testified that he was injured on a PAT bus. He was climbing the stairs to the platform on which the seats were located. Before he got up the stairs the bus pulled out and stopped suddenly. The doors did not close. His arm was injured. PAT posited that the accident never happened, and if the incident happened, the PAT driver’s actions did not constitute negligence. PROCEDURE: - Jury decided in favor of defendants. Appellants filed post-trial motions which were denied - The Jones’ appealed ISSUE: Did the trial court’s charge does adequately explain the principle involved? HOLDING: No, reversed and move for new trial ANALYSIS: - Appellants make allegations of error, all dealing with the court’s charge to the jury. o Trial court erred in refusing the charge the jury that PAT owes the highest duty of care to its passengers o “Now, this degree of care is different than would be for an ordinary person.” - If the trial court’s charge does not adequately explain the principle involved, a new trial must be granted - The attempt to explain the higher level of care was not sufficient. NOTES: - Foreseeability versus reasonableness o Rogers - Foreseeability is the risk of physical harm to students driving to and from campus is necessary to establish that the school owed a duty to take care to prevent such harm to them o A separate inquiry should be whether it was reasonable for the school, in light of the foreseeable risks, to leave the building open - Shifting Sands o Washington v. Chicago: Plaintiff sued the city after a fire engine winding its way through traffic drove onto a median, hit a plantar box, went out of control, and hit a plaintiff’s car. REJECTED CLAIM. The accident that gave rise to plaintiff’s injuries was not a reasonably foreseeable consequence of the condition of the median. Foreseeable but not unreasonable risk of physical harm to drivers. - Breach instruction o Juries resolve breach by reference to the reasonable person standard, which is explained to them before they deliberate - Strict Liability o Owners of dogs are strictly liable for injuries caused by them, whether on or off the owner’s property o Common law rule of liability applies to owners who know of have reason to know that the animal in question poses a danger. Under common law, as long as the owner should have known

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his dog was prone to viciousness, the owner cannot escape liability even if he employed all means to control the animal. Reasonable care versus extraordinary care o Modern courts have determined that conduct of common carriers towards their passengers be judged under the ordinary reasonable person standard o Bethel v. NYC: Common carriers are not sufficiently distinct from other actors as to warrant the imposition of a higher standard of care because a reasonable person takes into account all relevant factors Unreasonable versus Reckless Behavior o Ex. A passenger on a train was killed when she attempted to cross the tracks by foot…Run down by an Amtrak train. Under MA law, the passenger was deemed a trespasser because she did not cross the tracks at the established crossing. Amtrak owed her a lesser duty of care Emergencies o D is driving on the highway a safe distance behind a truck. Crates fall off the truck, D swerves to avoid them crashing with P, who sues D for carelessly swerving his car into hers. Juries can take into account that D swerved in response to an emergency situation in determining the reasonable person standard. Should the jury receive a general reasonable person standard like Caliri, or should there also be an instruction on emergency changes in conduct? No breach as a matter of law – Judge takes breach away form jury o Adams v. Bullock: 12-year-old boy walking across railroad bridge that ran over a street swinging an 8-foot-long wire. The wire contacts a electrical line and shocks the boy. Jury found no breach as a matter of law. There was a duty to adopt all reasonable precautions to minimize the resulting perils. No evidence the duty was ignored.

Defining the Reasonable Person

VAUGHAN v. MENLOVE FACTS: Plaintiff had 2 cottages in Salop. Defendant possessed some buildings near the cottages with stacks of hay next to them. Plaintiff warned the defendant that the stack of hay could burst into flame, and the defendant negligently and improperly kept the stack of hay. The haystack burst into flame, engulfing the defendant’s barn, and spread to the plaintiff’s cottages, and wreaking 500 pounds worth of havoc. ISSUE: Whether the fire has been occasioned by gross negligence on the part of the defendant, adding that he was bound to proceed with such reasonable caution as a man would have exercised under such circumstances. HOLDING: Guilty ANALYSIS: - Judge was wrong in leaving to the jury a case of gross negligence - Question should have been whether the defendant acted honestly and to the best of his own judgment (Too vague) - The borrower is bound to the strictest care and diligence to keep the goods so as to restore them back again to the lender - The care taken by the prudent man has always been the rule - With the rule as their guide, has there been negligence? Yes - He said he would “chance it” - Had repeated warnings, procrastinated Classic source for the rule that the “reasonable person” standard is objective rather than subjective Issue: Does the law of negligence determine liability by looking at whether the defendant was doing his best to be careful, or does it look to whether the defendant lived up to some standard of reasonable care that transcends a particular person’s capacities or attitudes? Holmes (n.1, P.157) – Negligence law (and tort law generally) aims to set a standard of liability that falls between a notion of subjective fault or blameworthiness on the one hand, and a notion of strict liability on the other. Objective reasonable person standard mediates between the demands of a purely moral notion of responsibility (subjective fault) and the law’s practical need to set standard of liability that are clear and capable of being administrated easily and consistently.

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Options for “Menloves” - Example: A person realizes he is a worse driver than most people he knows - Invest in safety - Insure against accidents - Omit the risky activity altogether Reasonable person standard Rule: The fault standard asks whether the actor behaved, as would an ordinarily constituted person acting reasonably under the circumstances. The standard is not adjusted downward for attributes that lessen a particular actor’s capacity to be careful, not is it adjusted upward to reflect a given actor’s heightened capacity to be careful.

APPELHANS v. MCFALL Ill. App. 2001.

FACTS: 66 year-old plaintiff was walking along when a 5 year-old boy collided his bike with the man and fractured his hip. Daylight, pavement clear, no pedestrians, autos, or bicyclists present. Roadway was straight and flat. PROCEDURE: - Count 1 o Parents negligently failed to instruct their son on proper bike usage and supervise him riding because they should have known that his youth would prevent him from considering the safety of those around him - Count 2 o William negligently cause the injury - Defendants filed motion to dismiss - Trial court granted the motion, saying that William’s youth rendered him incapable of negligence and plaintiff did not allege sufficient facts to put parents on notice of negligent bike riding - Appealed HOLDING: The court correctly dismissed the charges. William was incapable of negligence and Plaintiff did not allege the two elements of negligent parental supervision ANALYSIS: - Tender years doctrine o Plaintiff contends adoption of MA Rule, under which a child can be found capable of negligence if the fact finder decides that the child failed to exercise a degree of care of a reasonable child. o Tender years doctrine – Child is incapable of negligence if he is under 7 years old. Seven is incapable of recognizing risk o Modern days have shown children are instructed to use good judgment at an early age and therefore we may hold them to a reasonable standard of care based on age o Eckhardt: MN high court recognized that children were sophisticated enough in 1937 to be held to a reasonable standard of care o The arbitrariness of the rule support abandonment, but stare decisis requires tender years doctrine rules the day. o Invite legislature or supreme court to look at the issue - Negligent Parental Supervision o The parent-child relationship doesn’t automatically render parents liable for the torts of their minor children o To prove negligent supervision:  Parents were aware of instances of prior conduct sufficient to put them on notice an act similar might occur  Parents had the opportunity to control the child o Holding parents strictly liable for failing to prevent their children’s negligence is unreasonable - Even when you feel inclination to sue the parents, but you need some kind of legal doctrine to get the claim directed at the parent. Very hard to accomplish here…But respondent superior is easier

Reasonable person standard: Exceptions and qualifications 1. Courts adjust the standard downward to take account of certain actors’ physical appearances. 2. Courts rarely, if ever, ratchet down the standard for actors with mental disabilities 3. A child is typically held to a standard that is calibrated to the capacities of an average child at the same age and experience, unless the child is engaged in an adult activity, such as driving a motor vehicle, in which case the child is held to the ordinary standard. 4. In many jurisdictions, children under a certain age are not held to a duty of care at all (the tender years doctrine) 5. The standard of care is ratcheted up for conduct by certain professionals within the domain of their professional competence (Reasonable open-heart surgeon) NOTES: - The objective/subjective distinction o Whether the conduct of the defendant was reasonably careful (objective) versus whether the defendant’s attitude was one of trying to be reasonably careful (subjective). Objective is conduct based o However, sometimes courts are willing to raise or lower the standard of care based on the defendant’s attributes o Vaughn likes objective  Once menlove undertook an activity posing a risk of physical harm to others, those others were entitled to rely on his competence, and hence Menlove is precluded form claiming an incapacity to foresee and protect against those harms o Inadvertence and Breach  The nature of the faulty careless conduct…Advertent negligence  D is driving 40 on a deserted 25mph street, fully aware he is speeding. P backs his car onto the street, D collides with P. The fact that D was aware he was speeding doesn’t establish that he committed anything graver than negligence. No intentional wrong here: speeding wasn’t meant to injure. o Physical disabilities  A court would never hold that a blind person who bumps into someone else on the street has failed exercising reasonable care because she didn’t look where she was going. Basis for comparison is that of an ordinary blind person  If a blind person were to attempt to drive a car, he would have acted unreasonably as a matter of law o Older children and adult activities  Compare children’s behavior to “other children of the same age, experience, and intelligence.”  Appelhans notes that minors who engage in adult activities like driving are held to the responsible standard of adults o Parental liability: Direct versus viacarious  A person injured by a child’s carelessness who wishes to recover from the child’s parents must establish a form of direct negligence, parental carelessness.  Negligent supervision – Parent should have known of the child’s tendency to commit wrongful acts and failed to exercise reasonable care to restrain him  Negligent entrustment – Parent carelessly gives a child access to a dangerous instrumentality. o Reasonable child and comparative fault  Comparative fault, like suing the parent of a child for not looking after them before they drove into the street and got hit by a car

o Mental incompetence  Mental incompetence may serve as a defense to criminal prosecution. No equivalent to insanity defense in tort law  Insanity could defeat battery because that requires the defendant to act knowingly and with purpose o Temporary insanity  Breunig v. American Family Ins. Co: P injured when D operated under the delusion that she could make the car fly and hit P’s truck. D’s insurer defended on the ground that D was schizophrenic and incapable of driving reasonably. DECLINED DEFENSE o Cultural Reasonableness  A Viet man shot another Viet man who attacked and threatened him the night before. Defendant sought to establish self-defense. Reasonableness (Death threats are taken literally in Viet culture) REJECTED DEFENSE. No basis for perceiving an imminent threat at the time he shot the man. ELLISON v. BRADY (GRAY) FACTS: Ellison worked near Gray for the IRS in San Mateo. The two co-workers never worked closely together. He asked her to lunch. She accepted. She got a tour of his house. He began to pester her. She declined an invite to a drink after work. 10/22/86, Gray gave Ellison a note. It escalated from there. PROCEDURE: - Ellison filed a complaint in the federal district court. - The court granted the government’s motion for summary judgment on the ground that Ellison had failed to state a prima facie case of sexual harassment due to a hostile working environment - Ellison appeals ISSUE: Whether Gray’s conduct was severe enough to alter the conditions of Ellison’s employment and create an abusive working environment. (Reasonable women standard…Tailored) HOLDING: REVERSED. Yes, the conduct was severe enough ANALYSIS: - Scott v. Sears: Slapped butt, commented that she must moan during sex (Not sufficiently hostile) - It is the harasser’s conduct which must be pervasive or severe, not the alteration in conditions of employment - Title VII’s protection of employees of sexual discrimination - Gray’s conduct was sufficiently severe to create an abusive working environment - Although a single act can be enough, repeated incidents create a stronger claim of hostile environment, with the strength of the claim depending on the number and intensity of the incidents - Focus on the perspective of the victim o Conduct that many men consider unobjectionable may offend many women o Because women are disproportionately victims of rape and sexual assault, women have a stronger incentive to be concerned with sexual behavior - A female plaintiff states a prima facie case of hostile environmental sexual harassment when she alleges conduct which a reasonable women would consider sufficiently severe to alter the conditions of employment and create and abusive working environment - The reasonable victim standard classifies conduct as unlawful sexual harassment even when harassers do not realize it - No evidence that Gray harbored ill will, and offered to leave her alone in a love letter o However, she became very upset and frightened again, requesting Gray or herself to be transferred. A reasonable women would have a similar reaction

Stephens dissents - Factual gaps that can only lead to speculation - Reasonable women term inadequate and vague o It is incumbent upon the court to use terminology that will meet the needs of all those who seek recourse (gender neutral approach) o Majority insinuates difference between reasonable women and reasonable man, when men can go through the same experiences or have the same thoughts - Case should be reversed with trial instructions to uncover evidence and testimony HARRIS v. FORKLIFT SYSTEMS FACTS: Harris worked as a manager at Forklift Systems where Hardy was the President. Hardy insulted Harris because of her gender and made sexual innuendos. Harris complained to Hardy, he apologized and told her he would stop, but it happened again. She took her last paycheck and quit. PROCEDURE: - Harris sued Forklift, claiming Hardy’s conduct had created an abusive work environment for her because of her gender. - U.S. District Court of Middle TN held that Hardy’s conduct did not create an abusive environment. Some of the comments would offend the reasonable woman but was not so severe as to affect her psychological well-being, to interfere with her work performance - U.S. court of Appeals, 6th circuit, affirmed the decision ISSUE: Whether conduct, to be actionable as abusive work environment harassment must seriously affect an employee’s psychological well-being or lead to plaintiff suffering injury. HOLDING: Reverse. Abusive work environment harassment can be found without evidence of a change in employee’s psychological well-being. ANALYSIS: - title VII of the Civil Rights Act of 1964. - When a workplace is permeated with discriminatory intimidation, ridicule, and insult, that us sufficiently severe to alter the conditions of victim’s employment and create an abusive workplace environment - Middle path between making actionable any conduct that is merely offensive and requiring tangible injury - Title VII comes into play before a nervous breakdown - Title VII does not require concrete physical harm - We can say that an environment is abusive or hostile when looking at the circumstances - The environment could be reasonably perceived as hostile without causing injury Scalia concurs - “Abusive” does not seem like a clear standard - No single factor is determinative, but there is no better way I can think of to solve the problem Industry and Professional Custom THE T.J. HOOPER FACTS: Barges No. 17 and 30, belonging to Northern Barge Company, had lifted cargoes of coal at Norfolk. They were towed by the petitioner’s tugs, the “Hooper” and “Montrose.” Each tug had 3 coal barges in tow, the lost being on the end. The weather was fair as the tows passed the Delaware Breakwater on the 8th, but the morning of the 9th a gale came. The barges sprang leaks and were abandoned. Both barges were anchored.

The cargoes and tugs maintained that the barges were not fit for service; the cargoes and barges held that the tugs should have gone into the Delaware Breakwater and didn’t handle their tows properly. PROCEDURE: - The cargo owners sued the barges under the contracts of carriage. The owners of the barges sued the tugs under the towing contract. - All suits were joined together; the judge determined that all vessels were unseaworthy; the tugs were not carrying radio receiving sets by which they could have gotten word of the conditions - Interlocutory decree holding each tug and barge jointly liable to each cargo owner, and each tug for half damages for the loss of the barge. - Petitioner appealed, and the barge owner appealed and filed assignments of error ISSUE: Whether the tug captains acted carelessly in not turning into the Delaware Breakwaters given the information that was available at the time which they passed it. Were the tugs seaworthy and did a lack of seaworthiness cause the barges to be lost? HOLDING: Here there was no custom as to receiving sets. Had the tugs been properly equipped, they would have heard the Arlington reports. The injury was a direct consequence of this unseaworthiness. Alternatives: - Whether most people did or didn’t carry radios (industry custom) o Did not carry radio  Not negligent - Relationship between industry custom and reasonability o Maybe the industry custom is causing actors not to follow a standard of reasonableness - TJ Hooper Rule o Even if a defendant has acted with the care that, under the circumstances is customary for persons such as defendant to take, that alone does not establish that defendant acted reasonably o The custom itself may be reasonable ANALYSIS: - Barges were extensive and floundered in weather they were bound to withstand. - Barges weren’t seaworthy, no due diligence to examine them - The Arlington evening report predicted harsher weather, and if the tugs had been equipped they would have heard about them - The master of the Montrose said he would have put in if he had heard the evening report - Their private radio receiving sets were not in working order - No general custom to equip tugs - Adequate receiving sets are cheap and reliable, giving a great source of protection for the tows - They can have at hand protection against dangers of which they can learn no other way The Anti-TJ Hooper rule in particular contexts - TJ Hooper Rule does not apply in certain contexts, in particular in cases of professional malpractice - If a defendant acted in the manner consistent with other qualified professionals, then as a matter of law no breach has occurred JOHNSON v. RIVERDALE ANETHESIA ASSOC. FACTS: Decedent Clair Johnson suffered and adverse reaction to anesthesia received during surgery. Her oxygen supply was interrupted, resulting in brain trauma and death. PROCEDURE:

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Husband Donald Johnson and her estate sued anesthesiologist and his employer alleging malpractice Alleged the doctor failed to preoxygenate before surgery Trial court granted Riverdale motion in limine to prevent Johnson from cross-examining the defendant’s medical expert about whether he would have personally preoxygenated the patient Cert. granted in medical malpractice action in order to consider the Court of Appeals ruling forbidding the plaintiff from cross-examining the defendant’s expert witness as to how he personally would have treated the plaintiff’s decedent.

HOLDING: AFFIRMED. Because the standard of care in med mal cases is that which is employed by the medical profession generally, and not what an individual physician would do under similar circumstances, how another physician would have treated the plaintiff is irrelevant. ALSO, how a testifying medical expert personally would have treated a plaintiff cannot be used to impeach the expert’s credibility ANALYSIS: - Riverdale claimed that Johnson’s treatment was consistent with the applicable standard of care o Standard of care employed by the medical profession generally - Georgia law holds that questions aimed at determining how the expert would have treated the patient are irrelevant 1. Trial court did not abuse its discretion in granting motion in limine 2. Questions of how med expert would have personally treated the patient are irrelevant to attempts to try to impeach the physician. a. In the same situation, different physicians will use different methods, all complying with the same standard of care Carley dissents - Prevost v. Taylor: Here, the plaintiff did not present the individual opinion of the defendant’s expert to establish the standard of care, but to impeach the expert’s opinion that the procedure followed the standard of care - Eason v. State: Where purpose is to impeach or discredit witness, great latitude should be allowed in cross-examination - Plaintiff’s council also sought to ask expert how he teaches his med students in similar situations Why does the law require a med mal plaintiff to prove that a physician deviated from prevailing standard of care in his or her profession? How is medicine different from the tug boat industry? o Need to reduce health care costs o Juror incompetence to second-guess medical decisions o Professionals already held to higher standard of care on account of their expertise o Norms of patient of client care permit more trust in professionals to attend to safety considerations than other industries o VERY PRO PHYSICIAN HOLDING LARGEY v. ROTHMAN FACTS: In a physical, detected a vague mass in Largey’s right breast. Mammogram revealed ill-defined density in subareola region and enlarged lymph nodes. Defendant recommended biopsy, but there was a dispute about whether the biopsy would also include the lymph nodes. Plaintiff claims that defendant never mentioned the nodes. Biopsies showed that both were benign. Later, plaintiff developed lymphedema resulting from the excision of the nodes. Defendant did not advise plaintiff of this risk. Plaintiff’s experts said that defendant should have notified the plaintiff. Defendant’s experts noted that the condition was too rare to discuss with a patient.

PROCEDURE: - Husband and plaintiff claimed they were never told about the removal of the lymph nodes (battery) and that the defendant was negligent in failing to warn them about the risk of lymphedema and therefore consent was uninformed. - Jury rejected both claims - On the plaintiff’s appeal, Appellate court affirmed, noting Kaplan case o Kaplan: ISSUE: Whether the professional standard is the correct standard to apply in this case Distinction between battery and negligence If there is no consent - Battery If consent if not fully informed – Negligence (except in PA; Battery) Here, she claimed that there wasn’t fully informed consent Standard of care: Professional standard (Salgo, Natanson) – What information a reasonable doctor should impart to the patient Prudent patient standard or materiality of risk standard (Canterbury v. Spence) – what the physician should disclose to a reasonable patient in order that the patient might make an informed decision HOLDING: REVERSED. Adopt Canterbury reasonable patient standard ANALYSIS: - Cardozo – Patient’s right to be free of uninvited, unknown surgery - Plaintiff gave consent, no battery claim here - Informed consent – the duty of the physician to disclose to a patient such info that will enable the patient to make an evaluation. - Nathanson: When a physician is either affirmatively misrepresenting the nature of the operation or failing to disclose the probable consequences of the treatment, he may be subject to claim of unauthorized treatment - Support of professional standard – Physician would waste time reviewing EVERY possible risk, interfering discretion on the best possible treatment for the patient - Canterbury: Duty of a physician to warn of the dangers lurking in the proposed treatment and to impart information that the patient has every right to respect, as well as a duty of reasonable disclosure of the choice available and dangers involved - OBJECTIVE - Supporting prudent patient rule o The existence of a discernable custom reflecting medical consensus is open to doubt o Professional custom should not furnish legal criteria for measuring physician obligation to disclose o Professional standard subject to physician’s whim and unlimited discretion in determining scope o Problem trying to find physicians willing to breach the community of silence and speak out against a fellow doctor - Subjective CAUSATION standard puts burden of every disclosure on the physician o Patient’s position would have decided differently if adequately informed Shift from the doctor as trusted, to the patient. Largey v. Rothman - Difference between battery (intentional tort) and negligence claims o Negligence – not fully informed consent

NOTES: 1. Per Se versus Evidentiary approaches a. Outside of professional negligence, adherence to customary business practices does not in itself establish that defendant acted with reasonable care 2. Customary precaution is not irrelevant to the issue of reasonableness. What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a reasonable standard of prudence 3. Custom as Sword or Shield a. Posner argued that a per se equation of customary and reasonable care ought to apply when the parties were in a relationship, but not when they are strangers, because the parties in a relationship can bargain to adopted practices that provide an adequate level of care 4. Types of custom a. Hetcher argues that customs develop out of several different circumstances and warrant difference legal treatment depending on their type 5. Proof of custom a. How does one prove existence of custom? A practice must be widespread of common to be a custom 6. Professionals versus nonprofessionals a. In medical cases, proof of compliance with professional custom does establish reasonable care 7. Local versus national custom a. Must use general custom. Modern medical training is more standardized b. “Similar” localities standard is flawed because plaintiffs residing in sparsely populated areas would have a hard time finding a second physician or other expert willing to testify against the first doctor. 8. Expert testimony and standard of care a. Unless professional is so unrelated to professional experience that lay jurors can understand, plaintiffs must introduce expert testimony to establish breach of standard of care b. Expert must testify of a broken standard of care i. Plaintiff expert failed to identify a standard of care for injections by testifying that hypodermic needles break off in a patient only because of improper technique; he didn’t give a description of how defendant should have acted. 9. Administrative versus professional judgments a. Administrative decisions do not fall under professional malpractice. Injuries arising from inadequate hospital security is negligence not professional malpractice 10. Helling v. Carey a. Assaulted per se rule. Doc didn’t give pressure test for glaucoma. Reasonable person standard here because the decision not to give the test was on its face unreasonable 11. Informed consent a. Per se rule for professional malpractice does not apply to claims of malpractice that assert a tortuous failure to inform the patient risks attending medical procedures 12. Exceptions to informed consent a. No informed consent necessary to operate on an unconscious person in need of emergency assistance b. A surgeon must disclose that he is HIV positive 13. Med Mal Statutes a. Enacted in response to crisis in med mal insurance markets that threatened to increase costs of medical care of diminish availability b. Damages caps, cap on attorney’s fees 14. MCO’s and ERISA a. Managed care orgs. Imposing cost-benefit analysis on health care decisions to promote efficient expenditures on medical procedures. Can they be held negligent for bad advice?

15. Breach and Cause in Fact a. If there is an allegation that lawyer was negligent in handling the litigation of C’s breach of contract claim, C is damaged only insofar as the contract suit was likely to succeed. C would be required to establish that they would have won the case to collect damages. Reasonableness, Balancing, and Cost-Benefit Analysis 5 reasons for this section: 1. Highly influential general approach to analyzing the concept of reasonable care: the reasonableness of a course of conduct is determined by balancing the harm that is expected to flow from the conduct against the difficulty of taking precautions against the harm 2. Most famous version of this balancing approach: the Hand Formula 3. Most famous application of the Hand Formula “U.S. v. Carroll Towing” 4. Economic interpretation of the Hand Formula P.193, note 8 5. Balancing analysis is a tool for thinking about levels of care U.S. v. CARROLL TOWING CO. FACTS: There are 3 piers that extend into the Hudson River. 4 barges were attached to public pier in a tier formation. Six barges were tiered on Pier 52 right next to public pier. A tanker is attached to pier 51. The inner Pier 52 barge is the Anna C owned by Connors Marine; it contained flour. The harbormaster ordered the tugboat named the Carroll, owned by Carroll Towing and leased to Grace Line, to tow away a barge in the public pier. After fixing some ties, the crew unhitched itself with the outermost of the Pier 52 barges. The entire Pier 52 tier broke away and floated towards Pier 51. The Anna C slammed into the tanker on pier 51, sinking them both. The Anna C bargemaster from Connors Company was not aboard the barge. He would have recognized the leak and been able to bring the barge to safety after notifying the tug. PROCEDURE: - Lower court held that Carroll Towing and Grace were equally negligence in inspecting the Anna C and holding the lines for Pier 52. They were liable for half the damages each - On appeal, Carroll and Grace argued that Connors should also have been found at fault for failing to have a bargee on the barge at the time of the incident. ISSUE: Whether a barge owner is slack in the care of his barge if the bargee is absent. HOLDING: REVERSED. It was a fair requirement that the Conners Company should have a bargee aboard during the working hours of daylight. All parties are 1/3 liable? Remanded ANALYSIS: - No fault of the Anna C that the Pier broke off, because the Carroll crewmen wouldn’t have paid attention - She may recover against Carroll and Grace Line for collision damages - If the bargee had been aboard, he would have gone below at once to examine the injury, call over the tug, and save the cargo and barge - There are occasions when vessels break their moorings. It is the owner’s duty to prevent against: o The probability she will break away = P(robability) o The gravity of the resulting injury = L(oss) o The burden of adequate precautions = B(urden) - Proper care would require that precautions be taken if the cost of doing so (b) is less than the product of P x L. - If B is greater than or equal to PL, then the failure to take the precaution is not a failure of proper care - Proper care: Is B<PL?

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Here, the burden on Connors of having the bargee remain on board was less than the magnitude of the probability of damage to the barge or others multipled by the magnitude of such potential damage. By presenting the question of proper care in terms of valued on two sides of the formula, the Hand Formula clearly illustrates that there is more to breach analysis than simply asking whether the defendant failed to take an available precaution that would have prevented plaintiff’s harm. A failure to take an available precaution is not necessarily a breach of duty – one needs to know if the failure was unreasonable, and that inquiry will tend to include some assessment of how burdensome it will be to the defendant to take that precaution. If a storm threatens, the greater the danger of breaking he moors, especially in a crowded harbor where many barges are being shifted about The bargee had been away from the barge for 21 hours, and there was no excuse for his absence.

Cases - The Kathryn B. Guinan: When a barge was made fast to a pier in the harbor, the bargee’s absence would not be the basis of the owner’s negligence - The Sadie: It was actionable negligence to leave without a bargee on board a barge made fast outside another barge in the face of storm warnings - The Conway No. 23: The absence of the bargee had no connection with the damage done to the vessel itself - O’Donnell v. Tracy: Refused to charge a barge whose bargee had been absent having left the vessel to do his business RI HOSPITAL TRUST NATIONAL BANK v. ZAPATA FACTS: A Zapata employee stole blank checks from Zapata and cashed Zapata checks varying from $150-800 each in Zapata’s accounts at Rhode Island Hospital Trust National Bank. The bank paid them from March – July 1985. Bank statements were regularly sent since April, and Zapata recognized then in July. Immediately the bank stopped paying out the checks. The bank already processed checks totaling $109,000. The bank will reimburse Zapata cleared before April 25, two weeks after it was recognized. Checks cleared after April 25 the bank need not reimburse Zapata because Zapata failed to exercise reasonable. ISSUE: Whether Zapata has shown that the system used by RI Bank lacks the ordinary care that a bank must exercise under the U.C.C. Whether Zapata can recover for the post-April 24 checks on the theory that, if it was negligent, so was the bank. HOLDING: Zapata failed to carry its burden of establishing lack of ordinary care on the part of the bank. ANALYSIS: - Ordinarily a bank must reimburse an innocent customer for forgeries that it honors. - The customer must exercise reasonable care and promptness to examine the statement and items to discover his unauthorized signature and must notify the bank promptly after discovery of. - 14 days reimbursement. - The preclusion doesn’t apply if customer establishes lack of ordinary care on the part of the bank - Bank described its ordinary practices are follows: examines all signatures on checks over $1000, examines signatures on $100-$1000 checks if there are problems. Most other banks in the country follow this practice. - Made out a prima facie case of ordinary care - The industry practice saved $125,000 annually. - Changing to the new system did not significantly increase the number of forgeries - Zapata provided no evidence showing the increased loss was unreasonable in the light of the new practice - The marginal benefit of protection attained by shifting from random to individualized inspection is $0

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Minimal valuation problems (case is about dollars and cents, not lives, emotions, bodily integrity, or other interests) Mostly concerns internalized rather than externalized costs (Costs will be absorbed by the bank and passed along to customers). Question of level of care is optimal – customers benefit by decision to minimalize the sum of costs of detection plus costs of loses through forgeries

•Owner’s duty is function of three variables: 1.The probability that the barge would break away [=P (probability)] 2.The gravity of the injuries that would likely result if it did [=L (loss)] 3.The burden of taking precautions adequate to prevent the barge from breaking away [=B (burden)] It is the one universal, the duty that all shoulder without any undertaking beyond acting in a way that creates risks for others. At first blush it seems odd that so central a structure in law should take so long to appear on the scene. While the idea is ancient, the duty of care has been directly actionable in negligence for only two hundred years. Many nations do not recognize an action for breach of the duty of care at all. For much of its life the duty of care was unexcavated. Defendants were said to have a duty of "due care," "ordinary care," "reasonable care," the words simply serving as pointers to the jury's sense of proper behavior. In 1947 Judge Learned Hand (United States v. Carrol Towing, 159 F.2d 169 [2d Cir. 1947]) penetrated the concept in what was to prove an enormously fertile way. Restating it a bit, he said that as a person acts he creates risks. These risks can be represented as "p," the probability that the action will cause an injury, times "L," the severity of the resulting injury, or Loss. Facing the possibility of p times L-the expected loss from the action-the ordinarily prudent person, the one who accords due care, will employ that level of loss avoidance such that "B," the Burden of taking the loss avoidance, is at least equal to p x L, the expected loss. Where B is greater than p x L-which is usually true in those cases where the probability is very low or the expected loss is very slight, the person of ordinary prudence will not take loss avoidance. The losses will fall upon the victims, who will be unable to recover for them under a negligence theory. Under negligence, we are all taken to willingly accept the fact that there will be occasions on which our prospects are dimmed through no fault. All of this presupposes two enormously important things about due care. First, it assumes that the reasonable person will exercise foresight, so that as he plans an action he anticipates its affect on others. The Hand formula does not allow people to claim that they could not have taken loss avoidance because it never occurred to them that their actions created a risk, if a prudent person would have foreseen the risk. Second, it assumes that if a person foresees that his action will place a specific person at risk he will deal with that person to gain her willing acquiescence to the risk. If I am selling a car that I know will roll over under certain circumstances, for example, it is not consistent with due care for me to take your money without telling you about the risk, even if it is true that B < p x L, that is, even if it is not feasible for me to remove that risk. Knowing you are the buyer, I must apprise you of that fact and you must willingly shoulder the risk. Posner on the Hand Formula o Hand’s Formula provided the basis for a more rigorous conception of balancing that asks the factfinder to measure the dollar precautions against the dollar value of such harm o Unreasonable conduct is merely the failure to take precautions that would generate greater benefits in avoiding accidents than the precautions would cost. o Due care is care which is optimal given that the potential that the victim himself is reasonably careful Criticism of Posner’s interpretation

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o Keating says the moral significance society attaches to particular activities and purposes matters in the default determination, and cannot be captured by economic means only. Lord Reid’s Disproportionate Cost Test o If risk that the actor’s conduct would cause harm of the sort suffered by the plaintiff was exceedingly small, no need to protect against it o If the risk of harm was real, but very small, the actor is obliged to take precautions against the harm unless the burden is disproportionate to the harm produced o If the risk is substantial, the actor must do everything possible to prevent the harm

Proving Breach: Res Ipsa Loquitur – thing speaks for itself - Burden of production and burden of persuasion o Burden of production is the requirement of providing to the court some evidence in support of an alleged fact or set of facts that the party bearing the burden seeks to establish o Burden of persuasion comes into play after there is evidence before a judge upon which it must make a decision - Criminal: Beyond reasonable doubt - Civil: preponderance of the evidence o It is more likely than not - Here, plaintiff has 2 pieces of circumstantial evidence: defendant acted in some manner towards the plaintiff and during the interaction, plaintiff sustained an injury BYRNE v. BOADLE FACTS: P was on Scotland Road outside D’s shop when a barrel of flour fell from a window and knocked P down. A horse and cart came close with barrels of flour on it. P doesn’t think the barrel was lowered from a rope. No one saw the barrel hit P. P lost all recollection, was taken home in a cab, and suffered all night. D was a flour dealer PROCEDURE: - Defendant alleged that there was no evidence of negligence for the jury - Verdict for plaintiff with 501. damages. - On appeal, D argued that facts disclosed offer no evidence for negligence and that plaintiff had burden of proof - Res ipsa loquitor – the mere fact of the accident occurring is evidence of negligence HOLDING: Affirm. Verdict for plaintiff ANALYSIS: - It is the duty of persons to keep barrels in a warehouse to make sure they don’t roll out - A barrel couldn’t roll out of a warehouse without negligence, and it is preposterous to make a P provide witnesses. - The fact of a falling barrel is prima facie case for negligence - Defendant has burden of proof KAMBAT v. ST. FRANCIS HOSPITAL FACTS: D performed an abdominal hysterectomy on P. 10 laparotomy padswere marked and used. Several pads were placed near the bowel. Patient was unconscious during the surgery. P complained of stomach problems, an X-ray showed a foreign object in the abdomen, there was surgery to remove it. P’s condition deteriorated and she died to infections.

PROCEDURE: - Med mal action against D, alleging that D was negligent in leaving the pad inside P o Was the same type and size as used in the hospital o Patients wouldn’t have access to them o Experts disagreed as to precise area found - Defendants introduced evidence that standard procedures were used o P swallowed the pad o Pads were in reach of patients - P’s witnesses said you can’t swallow a pad like that - Trial court denied P’s request for Res Ipsa Loquitur. - Plaintiff moved to set aside verdict or grant new trial…Denied - Appellate division affirmed dismissal of complaint HOLDING: REVERSE. Res Ipsa Loquitur possible ANALYSIS: - Some accidents by their very nature would not ordinarily happen without negligence o Must be event that does not normally occur in the absence of someone’s negligence  Simple med mal cases requires no expert to determine that the accident wouldn’t have happened without negligence o It must be caused by an agency or instrumentality within the exclusive control of the defendant  Plaintiff’s expert testimony of how presence of pad led to ultimate injury doesn’t render res ipsa inapplicable o It must not have been due to any voluntary action or contribution of P - In cases where conflicting inferences may be drawn, choice made by jury NOTES - Res ipsa loquitur applies to certain tort causes of action, including negligence. It permits a jury to infer that the plaintiff’s injury was caused by D’s carelessness even when P presents no evidence of acts or omissions on part of D that may be careless - Effect of Res Ipsa o Relieves P of the burden of producing evidence as to what exactly the defendant did wrong - In standard cases, Res ipsa doesn’t work because surgery, even when properly performed, often fails to produce complications. Even though many patients can’t speak as to what went wrong in a surgical procedure, they must still provide expert testimony as to the doctor’s failure to meet the standards of his profession. - Lourdes hospital: Res Ipsa can be invoked when expert testimony is required to establish event’s leading to P’s injury o Educate the jury - Most places it is enough to show that the defendant is likely to be the only one to have undertaken or omitted the relevant acts o When numerous others have access to the place of injury…res ipsa is usually not found - “Exclusive control” requirement – if plaintiff played a major role in bringing about her injury, the likelihood of defendant’s negligence decreases Res Ipsa Loquitor 1. What happened to the plaintiff must be the type of event that ordinarily doesn’t occur in the absence of someone acting carelessly (most difficult to find) 2. The instrumentality of the harm suffered by the plaintiff must have been within the defendant’s exclusive control 3. The harm to the plaintiff must not have resulted from any conduct on the part of the plaintiff a. Number 2 and 3 go together

Justification for Res Ipsa - Evidentiary: Res ipsa alters the usual demands upon the plaintiff to provide proof of particular careless acts. It permits a mere happening of certain kinds of harms to suffice as at least prima facie evidence that a certain kind of conduct actually occurred - Strict liability: If the instrumentality was under the defendant’s control and the plaintiff did not contribute to the injury, then the defendant should be liable regardless of the defendant’s fault (or lack of fault) Negligence Per Se (as such) - certain acts are considered intrinsically negligent. This occurs when an actor's violation of a statute (or regulation) causes the kind of harm the statute was intending to prevent - Incorporating standards of behavior in criminal and regulatory statutes that, on their face, say nothing about tort liability - The power to sue as vicarious beneficiaries of rights possessed by others (Wrongful death acts) - Implied rights of action – Certain statutes identify a protected class – a group who’s members are beneficiaries of the standard DALAL v. CITY OF NEW YORK FACTS: Auto accident. Plantiff testified that he stopped at a stop sign controlling traffic, looking both ways for one block, and proceeded into the intersection. Half-way through, his vehicle was struck on the driver’s side by D. P alleged that he didn’t see D’s car until impact. D testified that she was 10-15 feet from the intersection when she saw P’s car 14 feet behind the stop sign but moving, 5-7 seconds elapsed before collision. Although D was nearsighted and required glasses, she wasn’t wearing them. PROCEDURE: - P appeals from judgment finding the defendant not negligent. Only P was negligent, and he was the proximate cause of the collision o Plaintiff contends the trial court erred in refusing to charge the defendant’s violation of Vehicle and Traffic Laws restriction requiring wearing corrective lenses while driving. HOLDING: Plaintiff is entitled to a new trial. The statute set up a standard of care, the unexcused violation of which is negligence per se. ANALYSIS: - An unexcused violation of a statutory standard of care, if unexplained, constitutes negligence per se - The absence or possession of a driver’s license relates only to the authority for operating the vehicle and not to the manner thereof - A restriction on wearing corrective lenses when driving has a direct relation to the actual operation of the vehicle Negligence Per Se Elements: (1) the defendant violated a statute or regulation; (2) the violation caused the plaintiff's injury; (3) the injury resulted from the kind of occurrence the statute or regulation was designed to prevent; and (4) the plaintiff was one of the class of persons the statute or regulation was intended to protect.

BAYNE v. TODD SHIPYARDS CORP. 568 P.2d 771 (Wash. 1977) FACTS: Plaintiff was not employee of defendant, but of a trucking company engaged in a delivery. While unloading goods, plaintiff fell from a platform. Plaintiff contended that the defendant’s loading platform lacked a guardrail required by safety standard regulations by the Dept. of Labor, pursuant to statute. PROCEDURE: - Plaintiff sued for personal injuries sustained while unloading goods being delivered to defendant’s premises - Trial court refused to instruct that a violation of that administrative regulation was negligence per se, but it was evidence of negligence - Superior court affirmed ISSUE: Whether violation of an administrative safety regulation is negligence per se or only evidence of negligence HOLDING: Reversed. ANALYSIS: - The statute in effect imposed a duty upon the director of Dept. of Labor to promulgate safety regulations to provide a safe workplace as is reasonable o “All elevated walks shall be provided with a standard railing on platforms - Under appropriate circumstances violation of an admin. Order is negligence per se. - Kness: Restatement of Torts 2nd §286 o To protect a class of persons which includes the one whose interest is invaded o To protect particular interest which is invaded o To protect that interest against the kind of harm which has resulted o To protect that interest against the particular hazard from which the harm results - Director of Dept. of Labor held a public hearing for the new standards - No reason why the regulation should have less force - In protected class? o Yes, statute requires a safe place of work for workmen. Not limited to solely employees Defendant’s cases showing admin. orders are only negligence: - Engen v. Arnold: Violation of safety rules promulgated by Dept. of Labor constitutes negligence o Did not hold that it would not be negligence per se - Vogel v. Alaska: Alleged violations for federal safety regulations governing stevedore employers o Regulations on seaworthiness was objective criteria…evidence of negligence o Here, employer is governed by workmen’s comp act - Nordstrom v. White Metal Rolling: Standards adopted by a trade association – negligence o Trade standards not as forceful as statutory admin. regulation Hicks Dissents - Administrative agencies have a penchant for spawning regulations without end - Negligence is sufficient

VICTOR v. HEDGES 91 Cal. Rptr. 2d 466 (Ct. App. 1999) FACTS: Hedges parked his auto on the sidewalk in front of his apartment building. Plaintiff and Hedges were standing in front of the car when an inattentive motorist drove onto the curb and into the plaintiff. Hedges parked there to show P his CD player in the rear of the Explorer. Driver saw bumps ahead because of construction, looked down at his tape deck, went out of control, and his plaintiff. PROCEDURE: - P brought an action for damages alleging that Hedges, and Williams were operating their cars negligently - P appeals judgment entered in favor of Hedges following grant of D’s motion for summary judgment and from denial of motion for a new trial ISSUE: Whether a statute prohibiting the parking of a vehicle on a sidewalk may be employed to fix upon Hedges the presumption of negligence in the circumstances of this case and whether reasonable people could conclude that he subjected plaintiff to unreasonable risk of harm HOLDING: Affirm. Statute in question was not designed to prevent the type of occurrence that resulted in plaintiff’s injury, and P has failed to raise a triable issue of fact that an ordinary prudent person in D’s place would have foreseen an unreasonable risk of harm to plaintiff ANALYSIS: - D argued that proximate cause couldn’t be established - Negligence Per Se o Vehicle Code 22500 which prohibits parking on a sidewalk  Section’s prohibitions appear designed to prevent vehicle-pedestrian collisions. Pedestrians walking around an illegally parked vehicle are a threat  Here, D’s parked auto didn’t obstruct P’s way o P was insufficiently aware of vehicle and walks into it, causing injury.  Here, they were simply looking at a CD player - Ordinary Negligence o Clear distinction between forseeability or proximate cause and general negligence o P argues that D could have foreseen the likelihood that another vehicle could lose control and come onto the public sidewalk o P’s expert declared that the bumpy road and other factors biased William’s van to the right.  D doesn’t have that specialized knowledge  D was not aware of any prior accidents in this area. NOTES - Martin v. Herzog – Distinction – It depends jurisdiction to jurisdiction. In NY, the criteria is negligence per se in itself. It’s not that the jury gets to waive the defendant’s failure to follow the statute as evidence of negligence; it is negligence. The defense doesn’t get to come back and show why not doing so was reasonable under the circumstances. - Negligence per se allows a negligence plaintiff to satisfy the breach element by proving that the defendant violated a statutory rule of conduct - Breach versus actual cause – The person driving without his lights on should not have to pay damages for his fault unless the absence of lights created the disaster - Excused violations – Some courts excuse violations where the violation of statute was more prudent course of conduct for the defendant to follow. - NOTE 7 – Negligence Per Se Red Herring. Some statutory or regulatory provision that is an exception.

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o Chevron v. Forbes – Plaintiff, a patron at a gas station, slipped in a puddle of gas. P attempted to invoke negligence per se on the basis that self-service stations must be staffed by an attendant to clean up spills. Court held that cleaning up spills was a fire safety hazard, not designed to prevent slips and falls. o Wawanesa v. Matlock – Lumber company lost lumber because minor dropped a cigarette in the batch. Insurance company sued the parents because it is illegal to give cigs to a minor. Negligence per se rejected, because the statute was designed to prevent young people from getting addicted to cigarettes, not to reduce the risk of fire from them being lit. o De Haen v. Rockwood Sprinkler: P’s decedent was killed when another worker bumped into a radiator placed near the edge of a hoist-away being used to construct a building. The plaintiff successfully invoked negligence per se on the ground that the company failed to comply with a statute requiring that hoistaway openings be fully enclosed on two sides and that the remaining sides be guarded by a bar Establishing a violation of a conduct-oriented statutory command is necessary but not sufficient to make out negligence per se. In addition, the party must establish that the law was meant to protect the class of persons against injury suffered.