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TORTS OUTLINE Tripod

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					I. Intentional Torts
        a. BATTERY
                  i. Act (volitional)
                          1. external manifestation of the will
                          2. volitional movement of some part of the body
                                   a. unconscious acts and reflex actions are not sufficient
                                             i. insane persons and minors are capable of volitional conduct
                 ii. Intent to cause contact which is harmful or offensive (subjective test)
                          1. purpose/desire, or
                          2. belief or knowledge to a substantial certainty (about 85%)
                                   a. just need intent to cause contact (Vosberg v Putney): kid kicked another lightly on shin
                                   b. Intent is subjective, except if the person is insane. Then, we look at the objective facts and impute
                                       intent if the facts warrant it.
                          3. transferred intent applies
                iii. Causes (directly or indirectly)
                iv. Harmful or offensive contact
                          1. harmful
                                   a. any physical impairment to another’s body or physical pain or illness
                                             i. physical impairment- any alteration of the structure or function of another’s body
                                                      1. pulling a hair out would count
                                                      2. we protect harmful contact more than offensive.
                          2. offensive- invasion of another’s sense of personal dignity.
                                   a. objective test, unless you have been put on notice of Pl’s hypersensitivity. Once on notice, it
                                       becomes subjective.
                                   b. Pl does not have to be aware of contact
                                             i. Sleeping Beauty or unconscious patient during operation
                          3. contact
                                   a. can be with anything so closely associated with the body as to be customarily regarded as part of the
                                       person
                                                      1. Examples: plate, hat, backpack---Grey areas: bicycle, car, house
                                   b. QUICK GLANCE AT BATTERY
                                             i. Act
                                            ii. Intent to cause (harmful or offensive) contact
                                           iii. Causes
                                           iv. Harmful or offensive contact
        b. ASSUALT
                  i. overt act
                          1. volitional movement of some part of the body
                          2. generally, words alone not sufficient
                                   a. exception one: unprivileged conditional threat
                                             i. ex. Coming up behind someone and saying, “don’t move or I’ll shoot.”
                                                      1. the surrounding circumstances force Pl to rely on the words alone
                                            ii. ex. If you don’t pay me my money now, I will kill you.
                                                      1. this is a threat with no privilege, even if the guy owes him money
                                   b. exception two: threat of danger from an independent source
                                             i. ex. “Look out! The spider is going to get you!”
                 ii. intent (to cause imminent apprehension of a harmful or offensive contact )
                          1. to cause contact, or
                          2. to cause imminent apprehension of contact
                                   a. this is a subjective test (what was in D’s mind when he acted?)
                                             i. purpose/desire, or
                                            ii. belief or knowledge to a substantial certainty
                          2. transferred intent applies
                iii. Causes
                iv. Imminent apprehension of (harmful or offensive) contact
                          1. majority approach: test is objective (would a reasonable person apprehend contact?)
                                   a. unless there is prior knowledge (I have been put on notice)
                                             i. ex. I know the guy can throw the rock 100 yards.
                                            ii. minority approach (also Restatement view): test is subjective
                                                      1. actual apprehension of the pl is what is important
                          2. pl must apprehend a contact to her own person
                                   a. threats to home or 3rd person are not enough

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                   if D’s words negate harm, then it is not assault
                  3.
                        a. If you weren’t such an old fool, I’d kill you!
               4. pl does not have to fear, just apprehend (anticipation, expectation)
                        a. ex. A small boy can assault a large bodybuilder
               5. apparent ability of D is sufficient
                        a. if man has gun, and it is unloaded, and threatens you with it, it is still assault if you think it is loaded
               6. mere preparation is not sufficient
                        a. standing and loading a gun is not enough. The gun must be turned on you to have imminent
                             apprehension
               7. apprehension must be of an imminent harmful or offensive contact
                        a. pl must be aware of threat at the time thereof
               8. threats of future harm insufficient
                        a. How do we know what imminent means?
                                   i. Without significant delay is test
               9. if there is no intervening by either the pl or another and the assault would happen anyway, then there is an
                   assault
                        a. ex. Roger Clemens and Kissing Bandit
                        b. pl is under no duty to intervene or avoid the assault
               10. harmful
                        a. any physical impairment to another’s body or physical pain or illness
                                   i. physical impairment- any alteration of the structure or function of another’s body
               11. offensive-invasion of another’s sense of personal dignity.
                        a. objective test, unless you have been put on notice of Pl’s hypersensitivity. Once on notice, it
                             becomes subjective.
                                   i. QUICK GLANCE AT ASSAULT
                                           1. Act
                                           2. Intent to cause imminent apprehension of a harmful or offensive contact
                                           3. Cause
                                           4. Imminent apprehension of harmful or offensive contact
b.   FALSE IMPRISONMENT (FI)
        i. Act
               1. volitional movement of some part of the body
                        a. physical force against pl or pl’s immediate family
                                   i. note: reasonableness of pl’s submission is immaterial
                                           1. ex. Nun could imprison huge weightlifter
               2. words alone may be sufficient
                        a. threats of imminent physical harm to pl or pl’s family or to pl’s property;
                                   i. future threats don’t suffice.
                                  ii. threats to economic well-being do not suffice
                                 iii. moral persuasion will not suffice (there must be duress)
                        b. words asserting legal authority---arrest by police officer
               3. If someone has a duty to let someone out, and they don’t, there can be FI.
                                           1. ex. Lady on boat who they won’t let off.
                                           2. refusual to release when under a duty to do so is intent to confine

          ii. Intent to confine within boundaries
                  1. subjective test
                           a. purpose/desire, or
                           b. belief or knowledge to a substantial certainty
                  2. transferred intent applies
         iii. Causes
         iv. Confinement within boundaries
                  1. within boundaries for some period of time, however short
                  2. pl must not be aware of a reasonable means of escape
                           a. If there is a reasonable means of exit that you are aware of, it is not FI.
                                      i. Pl is under no duty to risk harm to self (or dignity), property (including clothing), or
                                         another (3rd person) by attempting escape.
                                              1. ex. Pl would not be required to make his escape by crawling through a sewer.
                                     ii. Pl is under no duty to search for a means of escape
                                    iii. A larger person can be confined by words of force from a smaller person, even if he could
                                         easily escape the threat of force


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                                 iv. if the only means of escape could cause physical danger to pl, and he could remain
                                      “imprisoned” without any risk of harm, he may not recover for injuries he suffers in
                                      making his escape.
                                  v. pl does not have to break law to escape
                                           1. if D asserts that pl must break law to be released, compliance is not deemed a
                                                “reasonable” means of escape.
                                 vi. Keeping someone out is not FI
                                           1. ex. Keeping out of a concert or theater.
                                vii. Confinement can be in apparent barriers, what looks like a barrier to pl
                                           1. ex. Electric fence that is not working is still confinement if pl thinks it is working.
        v. Awareness of confinement necessary
                1. unless harmed by confinement
                        a. QUICK GLANCE AT FALSE IMPRISONMENT
                                   i. ACT
                                  ii. INTENT TO CONFINE WITHIN BOUNDARIES
                                iii. CAUSES
                                 iv. CONFINEMENT WITHIN BOUNDARIES
                                  v. AWARENESS OF CONFINEMENT NECESSARY UNLESS HARMED BY
                                      CONFINEMENT
c.   INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
         i. Extreme and Outrageous Act
                1. atrocious and utterly intolerable in a civilized community (reasonable man test)
                        a. Court is gatekeeper. If the facts say reasonable minds could differ, then the jury will decide. If
                            reasonable minds couldn’t differ, then the court will decide.
                        b. Extreme and outrageous is a very high standard
        ii. INTENT to cause severe emotional distress (subjective)
                1. Purpose or desire-to cause severe emotional distress, or (Pl, family, friend, dog, chattel)
                2. Believe to a substantial certainty that your behavior will cause severe emotional distress (Pl, family)
                3. Recklessness also suffices (restatement and majority) (Pl)
                        a. Conscious disregard of a high degree of probability
                                   i. recklessness only suffices when act is done to you, not to others or chattel
                                  ii. If you act with a purpose/desire to cause distress to someone watching by harming chattel,
                                      dog, or friend then there is liability. (purpose/desire will work for everyone or every
                                      chattel)
                                iii. If you act with substantial certainty that you could cause distress to someone watching by
                                      harming chattel, dog, or friend then there is no liability.
                                 iv. If you act with substantial certainty that you could cause distress to someone watching by
                                      harming a family member, then there is liability
                                  v. There is no transferred intent for IIED

       iii. Causation
        iv. Severe emotional distress
                 1. Distress beyond that which a reasonable person should have to endure, or
                 2. bodily harm results from severe emotional distress
                           a. QUICK GLANCE AT IIED
                                     i. Extreme and outrageous act
                                    ii. Intent to cause severe emotional distress (recklessness suffices under Restatement &
                                        Majority)
                                   iii. Causation
                                   iv. Severe Emotional Distress
d.   TRESPASS TO LAND
          i. Act
         ii. Intent to enter or remain on land which is in the possession of another
                 1. It doesn’t matter if he doesn’t know it is someone else’s land (no good faith mistake)
                 2. Person with immediate right to possession of land has right to bring suit.
                           a. Intent for particulate matter is different analysis
                                     i. Court distinguished environmental trespass (particulate matter):
                                            1. Act
                                            2. Intent to do an act which results in invasion
                                                      a. Reasonably foreseeable that invasion would occur
                                            3. Causes
                                            4. Invasion of land

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                                                   5. Actual damages
             iii. Causation
             iv. Entry or remaining on land in possession of another by person or thing
                       1. Difference between trespass and nuisance:
                                a. Trespass: interference in the exclusive possession of land
                                b. Nuisance: interference in the use and enjoyment of land
                       2. In common law, Owner of land owns above and below land; below to core of earth and infinitely above.
                                a. Courts have ruled that owner owns air space in immediate reach (whatever owner can reasonably
                                    use)
                       3. Overstaying your welcome can result in trespass
                                a. QUICK GLANCE AT TRESPASS TO LAND
                                           i. Act
                                          ii. Intent to enter or remain on land which is in the possession of another
                                        iii. Causation
                                         iv. Entry or remaining on land in possession of another by person or thing
       e. TRESPASS TO CHATTELS
               i. Act
              ii. Intent to deal with chattel in manner dealt with
             iii. Causation
             iv. Invasion of chattel through
                       1. dispossession for a substantial period of time, or
                       2. harm to chattel
                                a. Mistake is not a defense
                                b. D pays diminution of value of chattel.
                                c. Harm to chattel doesn’t have to be physical harm, it can just harm its value or usefulness
       f. Conversion
               i. Act
              ii. Intent to deal with chattel in manner dealt with
             iii. Cause
             iv. Invasion of chattel interest which is so serious that defendant is required to pay plaintiff full value of chattel
                  (forced sale)
                       1. factors to consider
                                a. extent and duration of D’s exercise and control over the chattel
                                b. extent and duration of interference with P’s right of control
                                c. D’s good faith
                                d. D’s intent to assert a right inconsistent with P’s right of control
                                e. amount of harm done to chattel
                                f. amount of inconvenience and expense to P
                       2. If D intends to steal it is an automatic conversion.
                       3. The value of the chattel for conversion is the fair market value.
                                a. Fair market value is determined at the time and place of conversion (common law). Some courts
                                    give highest intermediate value between time of conversion and the time of judgment.
                       4. Damages cannot be recovered for sentiment alone
                                a. Anyone in possession of chattel may maintain action
                       5. If conversion is found, pl elects remedy of either Trespass to Chattels or Conversion
II. PRIVILEGES (8)
       a. Consent-3 types (burden is on D to prove):
               i. Express (actual)-orally or in writing
              ii. Implied (apparent)-can be inferred through custom (ex. Shaking hands, hitting in football, or manifesting your intent
                  without objecting (lady getting shots on cruise ship)
             iii. Consent implied-in-law
                       1. Docs can act in the absence of express consent if
                                a. the patient is unable to give consent (unconscious, intoxicated, mentally ill, incompetent)
                                b. there is a risk of serious bodily harm if treatment is delayed
                                c. a reasonable person would consent to treatment under the circumstances
                                d. this patient would consent to treatment under the circumstances.
             iv. Exceptions to consent (burden is back on Pl)
                       1. Incapacity- consent invalid if person consenting is incapacitated
                       2. Fraud- Consent procured by fraud is invalid
                       3. Duress-consent invalid if given under duress (threats of harm to spouse sufficient)
                       4. Exceed scope of consent
                       5. Illegal---Consent to criminal acts:

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                                   i. Where D’s act against P is a criminal act, courts are split.
                                           1. majority rule is that P’s consent is ineffective if the act consented to is a crime
                                                    a. Ex: P and D agree to fight with each other. In most states, each may
                                                        recover from the other, on the theory that consent to a crime – such as
                                                        breach of peace – is ineffective
                                           2. Minority rule: consent is effective, so no recovery available
                  6.   Mistake known or caused by actor
b.   Self-defense
           i. A person is entitled to use reasonable force to prevent any threatened imminent bodily harm
                  1. Degree of force: Only the degree of force necessary to prevent the threatened harm may be used. If D uses
                       more force than necessary, he will be liable for damage caused by the excess.
                  2. Apparent necessity: Self-defense may be used where D reasonably believes there is a real threat of harm
                            a. Reasonable mistake will not give rise to liability
                  3. D may not use retaliation for a tort already committed
                            a. Ex. P hits D with a snowball. Ten minutes later, D hits P with a snowball, in retaliation. D has
                                 committed battery on P, because D’s act was not done in true self-defense
                  4. You can threaten more force than you are entitled to use, as long as your purpose is to diffuse the situation.
                  5. When deadly force is threatened against you:
                            a. Majority view
                                       i. you can stand your ground and use deadly force, even if you can retreat
                            b. Minority view: If you can retreat safely, you must, unless you are in your house (also Restatement
                                 view)
                  6. If you intend to defend yourself, and you hurt someone else, you will have a defense (self-defense) because
                       Transferred Intent works.
                  7. You can’t use self-defense if you are the attacker and then the guy starts getting the better of you.
c.   Defense of others
           i. A person may use reasonable force to defend another person against attack. The same rules apply as in self-defense
          ii. The traditional view protects defender only if the person protected is actually privileged to defend themselves. The
              modern view protects the defender’s reasonable mistake
d.   Defense of Property
           i. A person may use reasonable force to defend their property, both land and chattels.
          ii. Warning required first
                  1. The owner must first make a verbal demand that the intruder stop, unless it reasonably appears that violence
                       or harm will occur immediately, or that the request to stop will be useless.
         iii. Mistake: The effect of a reasonable mistake by D varies
                  1. Mistake as to danger: If D’s mistake is about whether force is necessary, D is protected by a reasonable
                       mistake. (Example: D uses non-deadly force to stop a burglar whom he reasonably believes to be armed. In
                       fact, the burglar is not armed. D can rely on the defense of property.)
                  2. Mistake as to Privilege: But if the owner’s mistake is about whether the intruder has a right to be there, the
                       owner’s use of force will not be privileged.(Example: D reasonably believes that P is a burglar. In fact, P is a
                       friend who has entered D’s house to retrieve her purse, without wanting to bother D. Even non-deadly force
                       by D will not be privileged.)
                  3. Mechanical devices
                            a. You can’t use force calculated to cause death or serious bodily harm to protect property.
                            b. A mechanical device that won’t cause death or serous bodily injury is ok (such as electrical fence or
                                 barbed wire)
                  4. If someone hops on your train, you can’t throw them off until the next stop
e.   Recovery of property (recapture of chattels)
           i. Elements:
                  1. property taken tortiously (fraud, bad check, etc.)
                  2. you must be in fresh pursuit (w/o undue delay)
                  3. you must demand return (unless it would be futile or dangerous)
                  4. you can use reasonable, non-deadly force
                            a. General rule for a possession taken non-tortiously---You can’t use any force (no breach of peace)
          ii. Shopkeeper’s privilege
                  1. Reasonable suspicion of shoplifting
                  2. person on or near premises
                  3. must give notification of suspicion or demand return
                  4. reasonable search---includes reasonable amount of force
                  5. reasonable time of detention
         iii. Recapture of real property
                  1. General rule is no use of force is allowed

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         f.Necessity
                 i. Public Necessity- no compensation to the injured party for damage caused by necessity, because it is for the public
                     good (common law) (there are statutes which disagree)
                         1. Rule: Any person is privileged to commit a tort if it reasonably appears necessary to avert a public disaster.
                                   a. Any force reasonable is allowable, including deadly force.
                                   b. Mistake is ok.
                ii. Private Necessity- person claiming necessity must compensate the injured party
                         1. Rule: You can preserve your more valuable property at the expense of someone else’s less valuable
                             property, but you must pay the owner damage that is caused to his property.
                                   a. This rule gives the trespasser legal right to trespass to save his property, but he must pay damages.
                                             i. If there is a detour, you have the right to trespass to get around it (necessity), but you must
                                                pay for any damage that occurs.
        g. Discipline
                 i. General rule: kids can’t sue parents
                         1. But this is changing, and a lot of states have said kids can sue parents
        h. Justification
                 i. a catch-all term used when there is a good reason for exculpating D from what would otherwise be an intentional tort.
III. NEGLIGENCE (Duty, Breach, Factual Cause, Proximate Cause, Damages)
        a. DUTY
                 i. The average reasonable person in the same or similar circumstances
                         1. level of intelligence is irrelevant
                                   a. If you have superior knowledge (say, a truck driver with 20 years experience), majority says you are
                                       held to your superior knowledge, not ARP
                                   b. Superior physical and mental capabilities are considered, so you are held to a higher standard than
                                       ARP
                         2. Exceptions:
                         3. Custom Rule: Proof of custom allowed, but
                                   a. Custom is probative, but not dispositive (conclusive). We still must ask the question of B<PL
                         4. Emergency Doctrine: ARP in an Emergency
                                   a. If the emergency is created by the negligence of the actor, the emergency doctrine does not apply
                         5. Disabled persons: Average Reasonable disabled person
                                   a. Ex. Average reasonable blind man, deaf man, etc.
                                             i. But we don’t use this standard for mental deficiency, ie. Low IQ
                                                     1. Rationale: it is easier to fake being dumb, but you can’t fake blindness
                         6. Intoxication
                                   a. You are held to the standard of ARP who is not intoxicated.
                                   b. Courts refuse to make allowance for intoxication where it is voluntary or even negligent.
                         7. General Child Rule:
                                   a. Average reasonable child of the same age, intelligence, and experience
                                   b. Exception:
                                             i. Inherently Dangerous Rule:
                                                     1. When the activity a child engages in is inherently dangerous, the child should be
                                                          held to an adult standard of care (ARP)
                                                               a. Ex. Driving boat or snowmobile
                                                                         i. Inherently Dangerous Activity- capable of resulting in grave
                                                                             danger to others or the minor themselves.
                                            ii. Adult Activity Rule:
                                                     1. If kid engages in adult activity, then he is held to standard of adult.
                         8. Mental disabilities (not IQ, but mental sickness)
                                   a. Majority rule is sudden mental deficiencies (insanity) are not an excuse, you are still held to ARP
                                   b. Minority Exception: A sudden mental incapacity is an excuse, if
                                             i. The incapacity is unexpected
                                            ii. You did not know of possibility of occurrence
                         9. Sudden physical disabilities are an excuse and you are not held to ARP
                         10. Professionals- those with extra knowledge, more expertise
                                   a. ARP in a certain profession in same or similar circumstances
                                             i. Just because you are new at a profession does not relieve you from the duty to act as an
                                                ordinary reasonable professional in the same or similar circumstances.
                                                     1. However, if you claim to be an expert, you are held to a higher standard
                                   b. Malpractice: attorneys, teachers, docs, clergy, architect
                                   c. duty of care of a profession?
                                             i. possesses ordinary skill

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                                    ii. exercises best judgment
                                   iii. exercises reasonable care and diligence
                                             1. Person suing for legal malpractice still has to show that “but for” attorney
                                                  negligence, they would have won the case
                        d. Med Malpractice (6 elements)
                               1. Reasonable prudent doc
                               2. fell below standard
                                         a. Originally, local standard applied. Modern trend is a National Standard
                               3. must have evidence, not just speculation
                               4. It must be affirmatively proved
                               5. need expert testimony, unless negligence is grossly apparent to a layman
                               6. difference in doc’s judgment not enough, doc must have deviated from standard methods
      ii. Informed Consent
         1. duty of doc to give informed consent is breached
                 a. doc must give adequate info regarding treatment
                 b. must tell patient the options/alternatives the patient has
                 c. doc must disclose material risks- things likely to effect decision
                             i. Is it what a reasonable doc would think should be disclosed, or a reasonable patient would think
                                 should be disclosed? (the courts are split on this)
                                       1. If doc failed to give informed consent, the doc can show 3 affirmative defenses
                                               a. patient knew or should have known of risk
                                               b. full disclosure would not have been in best interest of patient
                                                          i. where a disclosure would alarm an emotionally upset patient
                                               c. Emergency
         2. causation
                 a. patient must show that they would not have gone forward with treatment if informed consent would have
                      been given
                             i. some courts use objective standard (majority rule)
                                       1. would a reasonable person have gone forward with treatment
                            ii. some use subjective (minority)
                                       1. would that patient have gone forward with treatment
         3. actual injury occurs
                 a. the burden is on patient to show the above 3 elements
iii. Duty to Act
         1. Common law- no duty to act to rescue someone in peril
         2. If you try to rescue someone you won’t be liable: However,
                 a. If you start to rescue, and you induce the person to rely on your rescue or you leave them in a worse
                      position than they were originally, then you will be liable; and
                             i. If you are negligent in rescue then you will be responsible for damage inflicted trying to rescue.
                                 You are held to a reasonable standard.
         3. Docs have had laws passed saying that if they do come to aid of someone, they will not be liable for negligence,
             only recklessness
                 a. however, they are not under the duty to come to aid
         4. Often, courts find a university liable for physical protection, but not moral decay
         5. Exception to common law of no duty to act:
                 a. If someone has an instrumentality under their control, then they have a duty to come to aid (ex.
                      Elevator)
                 b. If someone has a special relationship, then they have a duty to come to aid
                             i. Employer/employee
                            ii. Teacher/student
                           iii. Innkeeper/guest
                           iv. Common carrier/passenger
                            v. Jailer/prisoner
                           vi. Husband/wife
                          vii. Partent/child
                         viii. Doc/patient
                                       1. This is typically a relationship of control, so they have a responsibility to protect, an
                                           obligation to come to aid
                 c. If someone negligently causes peril to another, they have a duty to come to aid
                 d. If someone innocently causes peril to another, they have a duty to come to aid
                 e. If someone innocently causes injury to another, they have a duty to come to aid


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                                     i. You are train conductor and you run over a man who tied himself to the track and there was
                                         no way to stop
                  f. When you undertake to act (and induce detrimental reliance)
                                     i. Ex. Person on beach starts to save drowning boy, so others don’t act. Then you decide not
                                         to save them, and the boy drowns.
                                                a. You don’t need detrimental reliance, but it will strengthen your argument
           6. Duty to prevent harm to others (Protecting ‘others’ from the other you have a special relationship with)
                  a. General Rule: no duty to prevent harm to others
                  b. Rule: You owe a duty to protect others from the other you are in a special relationship with,
                       provided you are aware of a problem, and you have ability to control the person.
                  c. other Special Relationships
                              i. Patient/Psychiatrist
                                       1. Expert testimony will allow the jury to decide what a reasonable psychologist would
                                           have done
       iv. Licensee, Invitee, Trespasser
                1. Majority common law:
                          a. Landowner owes a higher duty to Invitee, then to Licensee, then to Trespasser
                2. Invitee- one who enters the land of another, with consent of the land owner, as either a business invitee or
                     public invitee
                          a. business invitee-one who is on land for potential economic benefit of land owner
                          b. public invitee-on who is on land held open to public at large
                                     i. You have a duty to use reasonable care to make the premises reasonably safe, or to warn of
                                         dangers;
                                              1. You are responsible for what you knew or should have known
                3. Licensee (aka Social Guest)- one who enters the land of another with consent of the landowner but who is
                     not a trespasser or invitee)
                          a. You have a duty to warn Licensee’s of dangerous conditions on your land of which you are aware
                                (majority rule)
                                     i. Minority rule: you have a duty to warn a licensee of conditions you knew or should have
                                         known
                                              1. A loiterer who goes in to get out of rain or cold is usually held to be a licensee
                4. Trespasser- One is a trespasser who enters or remains on the land of another without consent
                          a. Unknown - You have no duty of due care to unknown trespassers (for negligence)
                          b. Known-
                                     i. Artificial conditions- something I am doing or creating that could harm you (example-
                                         swimming pool hole)---I have a duty to warn
                                    ii. Natural conditions- something that naturally occurs on your property (ex. Natural hole)
                                              1. I have no duty to warn
                                                      a. Frequent trespassers fall under known trespassers
                          c. Trespassers injured on your prop, you have a duty to rescue
                5. Modern minority approach (CA)
                          a. You owe a general duty of care to all: ARP in same or similar circumstances
                                              1. On test use minority and majority
b.   BREACH analysis is
         i. The BPL Test
                1. B=burden of adequate precautions
                2. P=probability of harm to others
                3. L=gravity of harm
                          a. P times L equals magnitude of risk
                          b. (B<PL) If the burden is less than magnitude of risk then the person is responsible for negligence
        ii. Rules of Law- If you act this way, the courts will determine that you were automatically negligent (from case law)
       iii. Negligence per se-
                1. Statute violated (determined by jury)
                2. Class of person statute was designed to protect (determined by judge)
                3. Type of harm that statute was designed to protect (determined by judge)
                          a. Most courts apply negligence per se on violation of state and fed statutes
                          b. Regulations qualify for neg per se in some courts (there is a split)
                          c. Ordinances – can qualify for neg. per se in some courts (there is a split)
                          d. Advisory codes and industry standards can be evidence, but will not support neg per se
       iv. Negligence per se (3 views)
                1. Majority: violation of statute as negligence per se (actually strict liability) (judge decides) (there can be an
                     excuse, but judge will decide if excuse is sufficient)

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                  2.   Minority 1: violation of statute as rebuttable presumption- (there is liability, unless the D can show an
                       excuse, and jury will decide if excuse is sufficient)
                   3. Minority 2: violation of statute is evidence of negligence (which jury decides)
          v. 2nd Restatement (Excuses for Neg per se)
                   1. Unless the enactment or regulation is construed not to permit such excuse, its violation is excused when
                            a. -the violation is reasonable because of the actor’s incapacity
                            b. -he neither knows nor should know of the occasion for compliance
                            c. -he is unable after reasonable diligence or care to comply
                            d. -he is confronted by an emergency not due to his own misconduct
                            e. -compliance would involve a greater risk of harm to the actor or others
                                       i. This list is not intended to be exclusive
         vi. Proof of Breach
                   1. What if we don’t have direct evidence?
                            a. -Actual Notice (and then did nothing about it), or
                            b. -Constructive Notice (the D should have known that danger had arisen) (this is a reasonable amount
                                 of time test) (ex. Banana has been laying there 5 hours on store floor)
                            c. –Or, D was responsible for hazard themselves
        vii. Res Ipsa Loquitur (the thing speaks for itself)
                   1. accident does not ordinarily occur absent negligence
                   2. instrument of injury was in exclusive control of Defendant
                            a. pl must prove, unless
                                       i. multiple D’s are acting in concert
                   3. other potential causes have been sufficiently eliminated
                            a. We use Res Ipsa when we don’t have evidence and don’t know what happened. This is a substitute
                                 for proof.
                            b. If we know what happened, we don’t use Res Ipsa
                                       i. When a group of d’s are acting in concert, and one of whom was probably negligent, then
                                           we shift the burden of proof to the D’s to show that they were not negligent. If they can’t
                                           show they were not negligent, then they will be liable.
                                                1. Courts are divided on this.
                            c. Where a car, w/o apparent cause, runs off the road and causes harm, the normal inference is that the
                                 driver was negligent, and res ipsa loquitur is usually held to apply
                   4. 3 approaches to Res Ipsa Loquitur
                       1. inference (Majority view)
                                 a. it warrants an inference of negligence which the jury may draw or not
                       2. Rebuttable presumption (minority approach and Ca)---Tie goes to D
                       3. Rebuttable presumption with a shifting burden of persuasion
                                 a. Requires D to prove by a preponderance of evidence that injury wasn’t caused by his
                                      negligence---Tie goes to pl
c.   Cause in fact (“but for” cause) (Factual Cause)
          i. But for the negligent conduct, harm would not have occurred
                   1. must be proved by a preponderance of the evidence (more likely than not; probable)
         ii. The majority approach is that there has to be 51% survival rate for there to be ‘but for’ cause.
                   1. Herskovits v. Group Health (minority)
                            a. Guy goes to doc, doc misdiagnosis. But had he made correct diagnosis, the man only had a 39%
                                 chance of living. Now the man only had a 25% chance of surviving
        iii. There can be multiple ‘but for’ causes
                   1. Rule: If 2 forces are actively operating, and either would have caused harm themselves, then both are liable
                       for but for cause
                            a. 2 forces, both are sufficient (would have caused damage anyway), neither are ‘but for’ (because the
                                 other force would have caused damage), but will be held liable as “but for” cause anyway
                                       i. Minority- Substantial factor test- neither has to be a “but for”, but both are liable b/c they
                                           are substantial factor
                   2. Rule: When 2 parties are negligent and cause a single injury, and the pl can’t prove which did it, the burden
                       shifts to D’s to prove they were not neg. If they can’t, then they will both be liable.
                            a. Summers v. Tice
                                       i. 2 hunters shoot at bird, and another hunter gets hit in eye. Pl can’t prove which one shot
                                           him.
                                      ii. The pl can’t prove ‘but for’ cause.
                                                1. How is this different to the turkey mom case? In turkey mom, only 1 party was
                                                     neg. In the present case, but hunters were neg.
                            b. Market share theory of liability Sindell v. Abbott Labs (holding all liable for drug negligence)

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                                           i. This is a substitute for but for cause
                                          ii. Requirements:
                                                   1. Pl has to enjoin substantial share of D’s, and then we shift the burden of proof to
                                                        D’s for factual cause
    d. Proximate Cause: 5 approaches
1. Andrews (who wrote minority in Palsgraf)
         a. Said prox. cause is a question of policy
                    i. You owe a duty to the whole world
                            1. If you breach a duty to one, you breach a duty to all
                   ii. Prox cause from Andrew’s viewpoint:
                            1. Because of convenience, public policy, a rough sense of justice, practical policy, expediency, common
                                sense, fair judgment, in keeping with the general understanding of mankind
                  iii. Factors Andrews urges us to consider:
                            1. Natural and continuous sequence
                            2. Substantial factor
                            3. Directness
                            4. Foreseeablity- assumes prevision of what would occur
                                     a. Analyzed after the accident
                            5. Remoteness in time and space
2. Cardozo
              ii. foreseeable PL analysis (zone of danger), looking thru the lens of breach of duty (B<PL)
3. –Reasonable Foreseeability approach
         a. manner of injury need not be foreseeable
         b. extent of injury actually suffered need not be foreseeable (eggshell skull rule)
                    i. Bartolone case (car accident started chain reaction leading to schizo)
                                     a. You take the Pl as you find him; you are still liable (eggshell skull rule)
         c. type of harm must be foreseeable for the D to be liable
         d. plaintiff- was the pl who received injury foreseeable as a victim?
                    i. Was the plaintiff within the scope or zone of my conduct?
4.-Restatement 3rd approach
         foreseeable type anlaysis: is type of harm within scope of risk?)
                   -Do a separate B<PL for each type of harm
5-Direct approach (easiest to apply)
         e. If there were no intervening act, then there is prox. cause
         f. If there is an intervening act, then there is no proximate cause
             iii. not used very much anymore
                            1. Criticism: if you leave a loaded gun next to a kid, it is foreseeable that he will cause damage.
                                     a. However, in a direct approach jurisdiction, there is an intervening act (the kid using guns), so
                                          there would be no prox. cause, and therefore no liability
    e. New York Fire Rule: For fires, you are responsible for one house after your own (Minority rule)
               i. Most courts reject this and apply a strict foreseeability rule
    f. Intervening causes- those that occur after alleged breach of duty by the defendant, but before damages occur. This intervening
         cause assists (combines with ‘but for’ cause) in the damages
               i. can’t be the pl himself. He would be considered contributory negligence
              ii. 3 approaches to intervening act
                       1. Traditional rule-
                                a. If intervening act is reasonably foreseeable, then there is proximate cause.
                       2. Restatement 3rd approach
                                a. don’t look at intervening act; just look if type of harm (injuries) was foreseeable
                       3. Historical approach (this has been almost uniformly rejected)
                                a. looks at whether intervening act was foreseeable or unforeseeable;
                                b. however, criminal or intentional intervening acts are by definition unforeseeable
                                           i. this view is almost completely rejected b/c you can foresee people acting criminally
             iii. Special rules for intervening act:
                       1. suicide breaks the causal chain for prox cause
                                a. suicide is not foreseeable
                                           i. -minority approach is if suicide is an irresistible impulse, then the jury can find prox cause
                                                   1. if a note is left, then it is not irresistible impulse
                       2. Attempt to escape from danger created by defendant: D who caused the danger will be liable to someone
                            who is injured trying to escape from it.
                       3. Medical malpractice is foreseeable; so if you have to go to hospital as a result of the originally neg party,
                            then the original neg party will be liable

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                          a. If we can connect the 2nd injury to the 1st injury, the original neg party will be liable
                 4. Rescue Doctrine- (Danger invites rescue)
                          a. Rule: someone coming to the aid of someone in peril is foreseeable
                                      i. If the rescuer is injured, the original negligent party is liable
                                     ii. If the person being rescued is further injured by rescuer’s negligence, then the original
                                         negligent party is still liable
                                    iii. However, if the rescuer is reckless, original party is not liable for his injuries or the ensuing
                                         injuries to the party being rescued
                                              1. Anyone injured in the rescue is covered by the original negligent party
                                                        a. Reckless- conscious disregard of a high degree of probability
                          b. 4 elements:
                                      i. D was negligent and such neg caused the danger to the person needing rescue
                                     ii. the danger was imminent
                                    iii. ARP would have concluded such danger existed
                                    iv. the rescuer must not have undertook the rescue recklessly
                                              1. Firefighter rule: firefighters can’t recover under Rescue Doctrine
                                                        a. Why? They are already compensated for their services
                                                        b. Minority: negligent party is liable to firefighter also
       iv. Social Host Rule:
                 1. Majority- There is no liability for the social host
                          a. No duty or no prox cause
                 2. Minority- NJ ; social host is liable for neg for serving alcohol, and allowing an intoxicated adult to drive
                          a. Minors are exception:
                                      i. Majority: there is liability for allowing a minor to drink and then drive
                                              1. Dram Shop Act: commercial establishments are liable
        v. Cutting off liability---Grandchildren of DES takers cannot hold drug manufacturer liable
g.   DAMAGES-For Negligence, you have to show damages
         i. Damages- you can collect all these damages for negligence and intentional torts. You don’t have to show damages for
            intentional torts, but you can collect them. You will usually get Nominal damages for intentional torts, unless you can
            show actual damages
        ii. For negligence
                 1. Nominal- those given to vindicate a right
                 2. Compensatory- those that make pl whole (restore to pre-injury status)
                          a. General- pain and suffering, emotional distress, disfigurement, disability, loss of consortium: not
                                monetarily quantifiable
                          b. Special- things we can reduce to a dollar figure, lost wages, medical costs, economic damages,
                                property damages: monetarily quantifiable
                 3. Punitive- those given to punish and deter
       iii. 4 principles that govern damages
                 1. -compensatory damages are designed to restore the pl to pre-injury condition as near as possible
                 2. -the only tool available for jury to put pl in pre-injury condition is money
                 3. -all damages, whether past, present or future, that jury awards must be included in one lump sum verdict on
                     the day of the judgment
                 4. -judicial review of jury verdicts is very limited
       iv. Recoverable damages:
                 1. Past medical costs
                 2. Future medical costs
                 3. Past lost wages
                 4. Future lost wages
                 5. Disability
                 6. Disfigurement
                 7. Pain & Suffering (past and future)
                 8. Property damage
                 9. Loss of consortium- loss of intimacy, relationship (between husband and wife or parent and child)
        v. Judges role in remittitur is to find if jury verdict was fair & reasonable
                 1. Was it so large that it shocks the judicial conscience?
                 2. Was it a result of passion or prejudice?
                          a. If the amount is unreasonable, then the judge has 3 options
                                      i. judge can leave it alone
                                     ii. judge can order a new trial
                                    iii. issue remittitur-judge lowers amount and offers it to pl, and says if you accept this amount,
                                         I won’t request a new trial

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                                                       1.   some judges do what is known as an additur, meaning they add to the amount of
                                                            the award---fed courts have ruled this unconstitutional---some states still have it
                vi. Lost wages
                          1. if person working, easy to calculate
                          2. experts req on how you would have progressed; how your salary would have increased, inflation, future
                               interest rates, etc
                                    a. What is gaining popularity is the Total Offset Method: we expect the market interest rate to be offset
                                         by inflation.
                                                i. We do this for future wages and future medical expenses
                                                         1. For expenses that were paid in the past (med expenses, past lost wages) the pl gets
                                                              amount plus interest on the money from time of expenditure to time of judgment
                          3. if not working, then what would compensate?
                                    a. you can be compensated for having to hire someone to do what you couldn’t do; ex. Babysitting,
                                         cleaning, etc.
               vii. What if Pl not injured now but maybe later?
                          1. Medical Monitoring: company sets up a fund and former workers who are asymptomatic can receive periodic
                               checkups and then get reimbursed.
              viii. Do you have to pay taxes on a Personal Injury award?
                          1. no, except punitive damages
                                    a. Do you have to pay taxes on other types of claim besides PI???
                                                i. Yes (this includes IIED)
                ix. Loss of enjoyment of life/hedonic damages
                 x. Collateral Source Rule: a trial court must exclude from evidence the payments received by injured party from sources
                     collateral, such as insurance company or gov’t benefits
                          1. Collateral Source rule doesn’t work for a 2 nd D’s insurance co. paying your bills. The 1st insurance co. could
                               reduce from your reward what the other D’s ins. paid you.
                xi. What if a pl can undergo an operation to restore hearing, but refuses to do so because of the risks involved?
                          1. The standard is that if a reasonable person would undergo the surgery, then D wouldn’t have to pay for
                               hearing loss. (We use B<PL analysis)
                          2. Defendant has burden of proving that a reasonable person would undergo surgery
                                    a. (this is the rule that pl must mitigate the damages, or they will not be able to collect from D)
       h. Negligent infliction of emotional distress
                  i. Direct (D’s actions directed toward Pl)
                          1. Parasitic damages: if physical injury results in emotional distress, then pl can recover for both
                                    a. all courts allow this today
                          2. physical manifestation of the emotional distress
                                    a. there must be severe ED, and it must produce a direct and objective physical injury
                                                i. this is a very high std, such as heart attack
                                                                  a. -some courts say a very serious physical manifestation must be proved by
                                                                      clear and convincing evidence
                 ii. Bystander Liability (you saw someone else almost get hit and it causes you emotional distress) Thing v. La Chusa
                          1. Bystander Rule: a pl may recover damages for emotional distress caused by observing the negligently
                               inflicted injury of a 3rd person if the pl:
                                    a. is closely related to the victim, and
                                                i. spouse (majority- have to be married) (minority: living together or fiancé is enough)
                                               ii. child or parent or sibling
                                    b. is present at and contemporaneously perceives the injury, and
                                    c. as a result suffers serious emotional distress
                                                i. a reaction beyond that of a disinterested witness, and
                                               ii. it is not an abnormal response to the circumstances
IV. Unborn Children
       a. Personal Injury- child must be born alive for him to have PI or wrongful death claim (until you are born, you have no rights)
       b. Wrongful Death- majority view: a parent can bring a wrongful death action for an unborn child
       c. Wrongful Conception
                  i. doc is negligent in performing sterilization and then a couple gets pregnant.
                          1. Damages for Wrongful conception:
                                    a. all med damages up to time of birth; pain and suffering thru birth and no more;
                                                i. possibly future damages (cost of raising child) if the reason you didn’t want to get pregnant
                                                   was economic (this is minority)
       d. Wrongful Birth
                  i. after conception, parents should have learned, but for the docs negligence, that there was something wrong with there
                     child. If they would have known, they would have aborted the child. So they sue the doc for wrongful birth.

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                     ii. All jurisdictions have wrongful birth
                              1. damages for extraordinary med expenses post birth (majority rule)
            e. Wrongful Life
                      i. brought by child saying I should have been aborted
                     ii. Virtually all courts have rejected wrongful life claims
                              1. exception was the case we read because the parents SOL had run
                                        a. damages for extraordinary med expenses post birth (majority rule)
            f. Hypo: woman having triplets, in a car wreck; one baby is stillborn, one is born and lives 5 min., one is born and has defects
                      i. What are the remedies?
                              1. -Mother- can recover for emotional distress, physical pain and suffering, etc. for losing her child (Neg. claim)
                              2. Stillborn child- the child has to be born alive for a personal injury claim
                                        a. there can be a wrongful death claim by parents (majority), and can recover for ED & pain & suffer
                              3. baby born alive for 5 min and then dies
                                        a. the child can have a personal injury claim (physical pain and suffering) (usually these types of
                                             damages are low)
                                        b. the child can recover for a wrongful death
                              4. baby born with defects
                                        a. PI claim
            g. Should a pregnant woman owe a duty of care to take reasonable precautions to protect her fetus from harm?
                      i. There is a split of authority
  V.    Contributory Negligence- if any negligence on part of Pl, then pl’s claim was barred
            a. Defendant has burden to prove this
 VI.    Comparative negligence-
            a. Pure- the pl’s recovery is reduced by the percentage fault attributed to the pl
            b. “Less than”- pl loses 50/50 (pl has to be “less than” 50% of fault)
                      i. the pl’s recovery is reduced by the percentage of fault attributable to the pl if pl’s fault is “less than” the d’s.
                              1. If the pl’s fault is equal to or greater than d’s, the pl is completely barred from recovery
            c. “Not greater than”- pl wins 50/50 (pl has to be “not greater than” 50% of fault)
                      i. the pl’s recovery is reduced by the percentage of fault attributable to the pl as long as the pl’s fault is “not greater
                         than” the d’s.
                              1. If the pl’s fault is greater than d’s, the pl is completely barred from recovery
VII.    See comparative negligence problems handout and read thru
            a. Ex. Pl is 40%, D1 is 10%, D2 is 50%, P’s damages are 100k
                      i. Pure—Pl recovers 60k (10k from D1 and 50k from D2)
                     ii. “less than”- split
                              1. Majority says barred as to D1 (not less than), but can recover 50k from D2
                              2. Minority says can recover from each D because less than the aggregate fault of other tortfeasors
                    iii. “not greater than”- same as less than
            b. Ex. P is 80%, D is 20%--each party claims injury and each has 100k in damages
                      i. Pure—P collects 20k and D collects 80k (some jurisdictions)
                              1. in Setoff jurisdictions, P gets nothing and D collects 60k
                     ii. “less than”- D collects 80k, P gets nothing
                    iii. “not greater than”- same as less than
            c. Ex. P is 50% with 100k in damages, D1 is 25% with 60k in damages, D2 is 25% with 20k in damages
                      i. Pure with no setoff- P gets 25k from each; D1 gets 30k from P and 15k from D2; D2 gets 10k from P and 5k from D1
                     ii. Pure with setoff—P pays D1 5k, and gets 15k from D2; D1 gets 5k from P1 and gets 10k from D2; D2 gets nothing
                    iii. Less than—P gets nothing; D1 gets 30k from P; D2 gets 10k from Pl
                    iv. Not greater than—P gets nothing; D1 gets 30k from P and 15k from D2; D2 gets 10k from P and 5k from D1
VIII.   Assumption of Risk
            a. knowledge of risk, and
            b. you voluntarily proceed and encounter risks
                      i. therefore you are barred from recovery (in common law)
                              1. 2 types:
                                        a. express, where you put it in writing, or implied
                                                  i. now, we look at assumption of risk under comparative negligence, and assign fault that
                                                      way; so it doesn’t completely bar recovery anymorewe give the jury the facts, and they
                                                      assign percentage of fault




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