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									If you make a mess, clean it up (but don‘t have to stop making the mess as long as you pay for it). Question is who made the mess and who has to clean it up. Battery
Elements:  Intentional (internal mental state) o Acting with purpose to produce consequence, or acting in a way that the reasonable man would know consequence is substantially certain to occur. (Hidden intent is irrelevant) [VanCamp v. McFoos] [Garret v. Dailey] (fault-mental state) o dual intent- need an intent to harm and a harmful touching and single intent- only need a harmful touching (intent to harm not needed)}[White v. Muniz] [Garret v. Daile o Transferred intent- liable if intend to commit one tort and commit another ex- assault to battery or also liable if intend to harm one person and harm another. [Hall v. McBryde}  Unconsented to o [Cohen v. Smith] Consent may be actual (expressed) or implied (a manifestation on which a reasonable person could rely)  Harmful/Offensive o To a reasonable sense of personal dignity (obj. standard) [Snyder v. Turk]. Must actually be harmful.  Contact o Touching (can have extension of self and Π, and it need not be immediate (poison or smoke) [Leichtman v. WLW]~light, sound Exceptions:  legal insanity is not a defense) [Polamiter v. Russ]  Consent: any touching, no matter how offensive, is permitted if consented to. o Exception- child cannot consent to sexual consent  Excuse/justification- Police officer can handcuff suspect Policy:  Coase- would say court not needed. Whichever party places more importance on either the touching or the right not to be touched, would pay for the right. Paying for it is determined by the cost to batter v. the benefit of the battery. Ex- factory polluting (grit) (midterm). Cost of polluting and lawsuits v. profits from operation and polluting. Does polluter place more importance on battery (pollution) bc the profits outweigh the costs? If so, D would pay for the right to batter. Kant- liability should put on the person who is morally at fault, regardless of result bc results have attendant circumstances like luck, even if there are exceptions in tort law that excuse them from fault. Ex in Cohen v Smith, Kant would not find the nurse morally wrong bc he didn‘t have bad intentions. Ex 2- If you intended to batter but missed, Kant would say you are still liable for battery. Nagel- attendant circumstances do not matter; the result is what is important. Luck can make you a better or worse person (Greek heroes- if the hero wasn‘t put in the situation where he could save, he wouldn‘t be able to save and be a hero, even if he has the potential. Potential without opportunity is useless.) Ex. If you intend to batter but end up committing an assault, you should be liable for just the assault. Ex 2- Cohen v Smith- he would say it was decided correctly, even though no intention to harm, harm was done (single intent). Luck here makes D a worse person, bc despite his intentions what he did was harmful to P. As luck would have it, if he was given a patient who did not have the same crazy values, his actions would have warranted a different result, making him not liable. Insurance: P must sue a solvent D (one with money or insurance) bc otherwise will not get money for damages. When P is liable, the cost of compensation to D goes to insurance company and therefore, the rest of the population that is also insured by same co., bc there premiums pay for Ps settlement. If gov‘t committing battery, then tax payers are the ones who end up paying for the compensation. o Then have to do cost benefit- is cost on insurance holders greater or lesser than the profits ins co makes by insuring these tortfeasors. Reason for law: Deters personal invasions and provides a civilized alternative to retaliation.






If you make a mess, clean it up (but don‘t have to stop making the mess as long as you pay for it). Question is who made the mess and who has to clean it up.
 π is placed in apprehension- reasonable person standard under same circumstances o 1) acting intending to commit battery 2)acting intending to put someone in imminent apprehension of battery [Cullison v. Medley] [Kaufmann v. Garnett---No apprehension] o Inferred intent- D does acts substantially certain, that consequences will occur from his/her actions. No intent, but D should‘ve reasonably known that an assault or battery would occur. o Transferred intent applies o do not need fear, but MIND MUST BE TOUCHED o If no apprehension according to a reasonable person, then no assault. Apprehension is of an imminent battery o *words alone lack immediacy, have to be in conjunction with something else [Cullison v. Medley] like carrying a weapon or shaking fist.You need actual conduct of a threatening kind o With conditional words ―If you were not my mother, I would….‖ Not usually enough. UNLESS they are forcing the party to choose between two tortuous alternatives ―I will hit you or take you purse‖ Exception: When there is legal right, i.e. stolen property o Apprehension can be caused by circumstances following a pattern of past interactions ex. The gang case  If a choice is presented for nontortuous action (option to run away or call authorities) then apprehension is not legitimate bc not imminent. would say should be liable for battery, not just an assault. Moral blameworthiness assigned based on actions and intentions. Nagel- If you are intending to batter somebody and you miss, should judge by the outcome (so liable for assault not battery). D was lucky to not cause more serious of an offense. Should judge by result, not just circumstances and intentions. Circumstances (where and when) do factor into the result, but ultimately result is most impt when assigning blame. Blameworthiness determined by situations and outcomes. Reasons for law: to deter retaliation. Also the right to be free from fear or apprehension of unwanted contact.




False Imprisonment [McCann v. Walmart]
Policy: o Kant- morally wrong in creating an apprehension of battery. D should be liable for what he intended, not just the outcome. So if intended to batter but missed, Kant Elements: o Intent to confine (motive is not consideration) o Confinement o π must know of confinement OR be harmed by it if not aware. (Harm can be physical or economical)

If you make a mess, clean it up (but don‘t have to stop making the mess as long as you pay for it). Question is who made the mess and who has to clean it up.
Bounded area= no reasonable means of escape. o Confinement need not be physical; can be accomplished by implicit or explicit threats but must have factual proof. o Any appreciable amount of time. o Within limited area (not a country) o Does not have lawful authority or restrains with illusion to lawful authority [McCann v. Walmart] Unconsented to (exclusion does not count) o


Privileges/Exceptions: o Officer improperly arrests is false arrest not false imprisonment. o When arrest is justified, overtime D may lose authority to confine detainee o Parents have privileges over child. o Confinement by contractual requirement o Shop keeper privilege- has power to confine, but has to be right about guiltiness. If not right, can be held liable. Must be a reasonable amt of time (can‘t be a day later) and distance (on premises) in which the P can be chased or apprehended by shopkeeper. Citizens arrest only applicable during crime. Policy: o Coase- Cost benefit analysis- Does the cost of detaining possible shop lifters (at the risk that they are not guilty) outweigh the benefit of not losing money of stolen goods (lost revenue)? (Under costs should think about possible negative publicity costs. If thinking about benefit of less stolen goods then that benefit could be greater than negative publicity.) If the benefit of preventing stealing is greater than that of cost of false imprisonment, then D will pay for the right to false imprison. o Insurance: If D choosing to detain people over preventing stealing of goods then cost of paying compensation goes to customers and employees. IF D choosing to lose revenue through stolen goods over paying compensation for false imprisonment- then customers and

employees are still going to eat the cost of insuring the good that were stolen. Then insurance?- which costs more to cover- stolen goods or false imprisonment compensation? Have to do their own cost benefit of which is economically sounder. o Kant- Not morally wrong to confine if have real suspicions as long as reasons are not morally ambiguous and cannot use false authority (morally wrong). o Nagel- would say legality of confinement up to luck. (Whether right or wrong about suspicions has to do with luck). If rightmorally better. If wrong- too bad. Liability assigned depending on result and luck. Still liable even if confinement was based on real suspicions that were not ill intended. Though morally not bad, still liable if wrong.

Trespass to Land Elements:
 Intent to enter o Only intent required is that ∆ get to the challenged location on purpose (doesn‘t have to know it is another‘s property-just intent to enter) o ∆ need not be aware that he is violating property rights. o Sleepwalking ≠ intent ≠ trespass to land o Unintentional entry or invited entry is not enough, but if there is a refusal to leave becomes trespass

If you make a mess, clean it up (but don‘t have to stop making the mess as long as you pay for it). Question is who made the mess and who has to clean it up.
Actual entry o 2 ways: (1) enter property; (2) extension of self o Non-physical invasion ≠ trespass to land (ex. Light)  Of Land of another o Includes air above & soil below, p heavens o Never has to actually touch the ground o Is not a matter of ownership (a renter can sue for trespass) NO harm or damages requirement o Owner entitled to nominal damages OR to rental value, for use of property and land had there been an understanding. o Punitive damages are granted if the defendant deliberately or maliciously used the land, whether there was an actual damage or not. (I told you not to do it and you still did) Rules for defending property: o You are not required to keep your property safe for trespassers. o You may not set up the hazard on purposespring gun/ shot gun. Value of person is greater than value of property a. Exceptions are attractive nuisance- if the thing on your property will attract children you are required to keep it safe o If you invite people to your property you are required it make it safe. o You can‘t use force if not in possession of property, must go to court. a. If D in bedroom P may use deadly force w/out proof that they were going to shoot you, b/c you are protecting the person. Privilege: o Law enforcement o Journalists not liable for truths from trespassing- extended liability rule. o If witnessed another tort while trespassing you are still liable for trespass. Ex. If you are trespassing and witness a battery and report this battery, you liable for a trespass. Policy: o Coase- becomes economic exchange. If property rights awarded to one party over another, they will negotiate as to who has right. Party that places more value on the  land will be willing to pay for it. Cost of doing business without the right to land is higher than benefit they get for just using the land (trespass). When negotiation is difficult give property right to party that will not have to pay for it (can‘t pay for it). Ex. Midterm- grit trespassed onto her land. Factory would pay plaintiff for right to have grit trespass if it was economically sound (cost beneficial over installing pollution filters) and if she was given the right by the court. If she was not given the right, they wouldn‘t care unless she was willing to pay to be free from grit trespass. a. Insurance co- will do cost benefit analysis as to who to insure and whether their policy should cover certain torts. Costs spread too others insurance holders. Kant- morally wrong to trespass or remain on land knowingly. But should not be liable for an innocent mistake of trespass. Is there greater/lesser moral wrongs? Nagel- Regardless of intent, the very fact that you have trespassed makes you blameworthy. Your luck that you happened to trespass unknowingly.



Elements:  Interferes (substantial damage or loss) with π‘s right of personal property, (does not have to be intentional) o Mistaken belief that you own the chattel is not a defense. 3rd person can be liable  to exercise SUBSTANTIAL DOMAIN over the property o Personal property= everything you own except real property ex- tangible property and docs that posses right to tangible property Remedy= get real market value of item (but not the item back)

If you make a mess, clean it up (but don‘t have to stop making the mess as long as you pay for it). Question is who made the mess and who has to clean it up.
Trover- recovery in court Third person: o If D commits conversion & sells chattel to 3rd pty, P can recover from either, even if 3rd pty is not aware of conversion (bona fide purchaser). a. Rationale: 3rd party can‘t purchase from D what he doesn‘t own (title) o or liability of using it without paying. If it is your land, and someone else is willing to pay more for it, then you will be willing to give it up (bc benefit of letting someone else use land is greater than keeping it yourself). If not paying for right and held liable goes to insurance. a. Insurance co must determine cost benefit (maximize profits). Kant- The D is morally wrong. Third person (ex stolen watch buyer) should not be held liable for circumstances beyond their knowledge. Not blameworthy if did not know they were doing something wrong, even if the result is wrong. Nagel- In line with tort law. Actual trespasser/converter liable bc result bad. Third party- held liable even if did not know doing something wrong, bc result is what matters and that is based on luck. Blameworthy regardless of intent and knowledge.

Factors distinguishing between trespass and conversion: o 1. Extent, duration of control o 2. Δ intent to assert a right to the property o 3. Δ‘s good faith o 4. Harm done o 5. Expense or inconvenience caused


Trespass to Chattels
Elements:  Interferes with π‘s right of personal property (everything you own except real property). Something short of conversion o (1) damaging or (2) stealing/takingdispossession or lost use o Electronic interference can count (spam emails) o Remedy= $ for loss of use or cost of repair, based on actual damage, not market value.

Elements: o Interference with use and enjoyment of property, when invasion is less material, when one person's use of property is interfering with another. }

Policy for conversion, trespass of chattels and nuissance: o Coase- COST-BENEFIT! Which party is more willing pay for the use of the property? Does not need to be litigated, if it is, does not matter who is liable. Market forces will determine who gets the privilege regardless of what the court decides. The parties engage in cost benefit analysis to determine if whether they are will to pay for the property

If you make a mess, clean it up (but don‘t have to stop making the mess as long as you pay for it). Question is who made the mess and who has to clean it up.
Defenses to Intentional Torts: D has option of raising, P does not have to bring it up. Affirmative:  Self-Defense 1) Privilege to use reasonable force to defend against tort must be proportional to force being used against you. 2) Reasonable deadly force only when the threat is at same extreme 3) No requirement to retreat, unless before using deadly force or in home. 4) Any excessive force is unprivileged 5) That one was provoked is not enough to claim self defense 6) There is a right to resist unlawful arrest 7) One can use assault to forestall a crime, even when the battery it puts the other party in fear of would not be privileged 8) Words insufficient for use of self defense Policy: o Coase: Cost of danger v. benefit of acting. If acting in self defense but not considered defense by court, insurance will then play a role (cost benefit). If self defense holds up in court then D insurance will then apply. What insurance covers influences decisions of actors (both P and D). Courts should leave it to the market to sort out liability. o Kant- Morally wrong then you are liable. SO even in acting in self defense if you are wrong then you are blameworthy o Nagel- Even if you are morally wrong in applying self defense, but it works, you are lucky and therefore not liable. Bc result is what matters.  Defense of Property o Timing: must be imminent or in progress. (No revenge, if threat is over and done, timing is no good) o For property, never can use deadly force. (Kato v. Briney shotgun trap) (Brown v. Martinez Boy shot for trespassing on watermelon field) Value of human life outweighs possession of land. o One can use false imprisonment to defend property, put if person detained is not guilty then the detainer is liable (Great Atlantic v. Paul)And person must be held only as long as necessary o o Need valid reason ( property wrongfully taken from owner) Need to warn trespasser to leave before using force.

Policy: o Coase- doesn‘t matter who liability is put on. Whoever wants the benefit of the property more will be willing to pay for it (regardless who originally owns it). o Insurance- Cost benefit- pay for cost of stolen goods through insurance v. litigation for the recovery of stolen goods. o Kant- person who takes property morally wrong should be liable o Nagel- even if wrong, but did not get caught or court found u not liable then you are lucky.  Defense of Others o Defense as 3rd person must be no more than if you were the person being attacked could use o Reasonable belief that threat is genuine o *Deadly force only in life threatening situation. o Shoe-stepping- Person not allowed to use defense of others unless person being defended was not the aggressor Policy: o Coase- cost of helping others v. safety from liability. o Insurance- if you help you can be liable. Are insurance companies going to want to cover people for being a good Samaritan if they end up being liable for it? OR if people don‘t help each other insurance will have to cover more injuries that could have been prevented by a third person. (cost benefit) o Kant- if you don‘t help then you are morally wrong. Would believe in Good Samaritan rule. o Nagel- If you are a good Samaritan and not liable then you are a hero (had the luck, circumstances, ability). But if you did help and you were held liable then you are unlucky

If you make a mess, clean it up (but don‘t have to stop making the mess as long as you pay for it). Question is who made the mess and who has to clean it up.
 Consent o Express- words permitting ∆ to commit, but person must have capacity to give consent (Reavis v. Slominski) Also, person who has authority can consent for others. Have to consent to actual.  incapacity has to be substantial and impair ability to weigh harms and benefits  Δ must have knowledge of incapacity  EXCEPTION: Cannot consent to crime o Implied- (1) custom, usage (sports where there is a foreseeable consequence) (2) Reasonable interpretation (first date kiss) EXCEPTION cannot consent to crime o Medical- Cannot exceed scope of consent (Ashcroft v. King Consented to familial blood transfusion, was given other AIDS infected blood)  Exception: Medical professionals may exceed Kennedy v. Parrot removing appendix, also operated on cyst. Would be irresponsible for doctor not to operate on the cyst when found during other operation.  If patient is unconscious can only consent to what a reasonable person would (if relative present, must ask)  Dr touching without consent is a battery. o Consent can be invalid if based on Ds misrepresentation (failure to receive crucial facts) o Minor can‘t consent unless age appropriate Policy: o Coase- action (while thinking there is consent) v. inaction (while believe there is consent). Also cost of acting while under misapprehension of consent. o Insurance- if you have insurance you are more willing to take the risk of believing there is consent. o Kant- if actor believes there is consent (exception age) and act not in a morally bad way, then not liable. o Nagel- Even if you thought consent, but you were unlucky and wrong, then you should be liable. Discipline o Parent/teacher may use reasonable force to discipline child Privilege of Arrest (Also see above to defense of property) o Mistake of Felony committed- only police can make mistake. If private citizen makes mistake, can‘t claim privilege. o Mistake of Person committing felony- reasonable mistake allowed o Misdemeanors- must be committed in one‘s presence.
Necessity- when you don‘t have a reasonable choice, you can act in a way that is normally not allowed.

 


Public Nec. (Common Law)
If destroying someone‘s private property to save public there is no liability (Surroco v. Geary, Destroyed house to save town from fire) (if no liability, party that lost property needs insurance otherwise will not be compensated. If had insurance costs spread to other insurance holders).

Public Nec (Governed by Statute or Const.)
These usually allow for destruction of the property to save public, but impose a liability to pay on the government (have to compensate) (Wegner v. Milwaukee Insurance, law in MN Constitution (if government liable cost is spread to taxpayers) (if private-> Other policy holders absorb costs of comp.)

Private Necessity

One can trespass or destroy another‘s property to save their own property or life, but they are liable for damages. (Ship/Dock Cases, Vincent v. Lake Erie-ship destroys dock) If the person you are moored to unties you and you or your property are damaged then they become liable Ploof v. Putnam-ship untied dock owner liable.

o Coase- benefit of taking action v. compensation. o
Whichever party places more value is more likely to pay for right to act or inaction. Insurance: who should pay? Was cost of action less than cost of inaction? Is the P or D solvent or insured? Need to be in these cases.

If you make a mess, clean it up (but don‘t have to stop making the mess as long as you pay for it). Question is who made the mess and who has to clean it up. Negligence: Negligence may be any conduct that creates an unreasonable risk of harm to others—it is actionable as a tort when that risk comes to fruition in actual harm
Rule: a) Defendant owed plaintiff a legal duty, b) defendant by behaving negligently, breached that duty, c)plaintiff suffered actual injury d) defendant’s negligence was an actual cause of the injury; and e) defendant’s negligence was a proximate cause of the injury
b. c. d. Whether the statute clearly defines the prohibited or required conduct Whether the statute would impose liability without fault Whether invoking the negligence per se doctrine would result in damage awards disproportionate to the statutory violation, and Whether the plaintiff‘s injury is a direct or indirect result of the violation of the statute


Duty: Rule: You have a legal duty not to increase the risk to other people. In general duty is that people have to act as a reasonably prudent person would in the same or similar circumstances. The degree of care varies with the situation, the standard of care is always reasonable care FORSEEABILITY=RPP
SOC, Factors considered when analyzing what duty is: - Heightened Knowledge or special training, dangerous instrumentalities same SOCdifferent circumstances (Hills v. Sparks, Stewart v. Motts) Children have childs SOC, except when they are operating a dangerous instrumentality (Robinson v. Lindsay) General Rule for Children: Duty of children is in exercising the same care that a reasonably careful child of the same age, intelligence, maturity, training and experience would exercise in the same or similar circumstances Hudson v. Putney - Physical Disabilities, then ‗in same or similar‘ (Shepard v. Gardner) * Sudden Unforseeable Medical Emergency, SOC doesn‘t change if Med emergency was foreseeable –epilectic-(Roman v. Estate of Gabbo) *Mental disability does not change SOC (Stewart v. Motts) 2. Neg. Per Se- is a violation of statutorily created rule or duty: Two part test to see whether violation of statute negligence per se (Martin v. Hertzong) **Talk about broad or narrow 1. Π is a member of the class of persons that the statute seeks to protect. (Rains v. Bend, Wright v. Brown, Haver v. Hinson) 2. Accident is within the class of injury that the statute seeks to prevent (If yes to test * analyze 5 factors from Rains) (narrow injury supported by Wright and Haver)
a. Whether the statute is the sole source of the defendant‘s duty to the plaintiff

Defenses to Neg. Per Se Rule: Unless legitimate excuse for violation of the statute is offered then is Neg. Per Se (Impson v. Structural Metals) 1. violation was reasonable because actors incapacity (ex. Child or med. Emergency) 2. Neither knows nor SHOULD know occasion for compliance 3. Unable to comply, even after reasonable diligence or care (Impossibility) 4. Emergency Doctrine, not due to own conduct (ex. Storm or tire blew out) 5. Compliance would have resulted in greater risk of harm to actor or another. (Nurse case)

Neg. as a Matter of Law: Rule: No reasonable jury could conclude that this is anything but negligence. Judge determined. (Marshall v Southern Railway, Chaffin v Brame)

If you make a mess, clean it up (but don‘t have to stop making the mess as long as you pay for it). Question is who made the mess and who has to clean it up.
B)Comparative Fault- Each will pay their own % (not Π friendly, allows poor to not be deterred, but saves from over detterance on rich Δ)

Breach: Rule: Where the actor has a choice of action he should engage in the action that will: 1. Result in the least amount of harm; AND, 2. Reduce the probability that anything bad will happen (must be foreseeable)
Rule: Preponderance of the evidence standard-Each element of Negligence must be proved more likely than not (roughly 51% standard)(US. V. Carrol Towing)

Proving Conduct:
      Must meet by a preponderance of the evidence (51%) (US V. Carrol) To prove cause you have to prove more likely than not that Δ was negligent (Santiago v. First Student) If there is a question of fact it should go to a jury and be upheld (Santiago v. First Student) (Upchurch) It is up to jury to determine witness credibility (Upchurch) Can use neg. per se, but may just be evidence of neg. Circumstantial evidence gives clues to weather breech has occurred (allows you to make inferences which can led to preponderance of evidence being met) (Forsyth v. Joesph) Expert testimony is only needed when topic is something a lay person would not be knowledgeable about (Dist. Of Columbia v. Shannon slide-thumb case) Non-expert witnesses can only testify as to facts, not opinions or conclusory statements Custom does not determine SOC (but could be used as evidence) (TJ Hooper) Policy manuals do not determine SOC (evidence) (Duncan, followed but wasn‘t enough, WalMart, didn‘t follow but okay) plaintiff must show that the owner either created a dangerous condition or had actual constructive knowledge of a dangerous condition-can be established by circumstantial evidence (Cracker Barrel) [SLIP] Even if Δ did not cause the danger he is liable if enough time passed Evidence that customary safety policy was violated- goes to jury Mode or method of business operations make it all to likely that a dangerous situation will occur[SLIP]


LH Formula

Apply B<PL analysis- burden of preventing harm is less than the probability of injury x seriousness of harm should the injury occur—if B<PL then breach of duty; if B>PL no breach (B=burden of precaution, P= probability of accident L= magnitude of accident) US v. Carrol Towing)

-****Policy For: is flexible and can change
with the times; is better than any other arbitrary standard -*****Policy Against- hard to quantify injuries/probability of injuries; everything that we do carries some risk and any activity has some benefit and any precaution some costs



 

Golden Rule Do unto others as would have done
unto you

Evaluating Conduct:
  

JURY: Intuitively, By Neg. Per Se, Neg. as Matter of Law, by Custom (can
hold to higher standard then Statutes- can be used as evidence)


Background Rules (Court made, not binding, rules of thumb)
1. 2.

Life above property (Bernier v. Edison, Indiana Consol. Ins)  

Person who has greater knowledge (Sinnet) 3. Foreseeability is low when you are depending upon an expert (Sinnet v. Buchele) 4. If burden is high, and likelihood of injury is low, then no breach (Lee v. GNLV Corp) 5. When one is confronted with 911 he may act in his best judgment without being neg. (Indiana Consolidated v. Matthew) 6. Degree of harm can be weighed against right to protect ones property/ sterilize camp experince(Fintzi v. New Jersey) a)Joint and Several- Can enforce total against A, who can then recoup from B. (Π friendly, meets goal of compenation)

AORUse Soft Crews analysis 1. Did the plaintiff have knowledge of the risk—objective test-Reasonable person

If you make a mess, clean it up (but don‘t have to stop making the mess as long as you pay for it). Question is who made the mess and who has to clean it up. 2. Did the plaintiff appreciate the riskobjective/fact specific test 3. Did the plaintiff voluntarily expose himself/herself to that risk? (Crews v. Hollenbach) Do this when analyzing in breach or here (see page 12 for when to do what) rebuts the burden gets shifted back to the Π, if not Π wins. NEW RULEModern Rule: Either inference or rebuttable presumption when: 1. The accident is of the type that normally does not happen without neg. 2. Δ was more likely than not neg. *If 2 or more Δ then no RIL (Collins is exception) Notes: a. RIL gives you breech and maybe duty, still need to prove rest (with maj. Rule) b. If no RIL can just default to neg. c. Π has to exclude other causes when ―it is easy to do so‖ (Warren) d. If Π has superior K then less likely to get RIL, if Δ has superior K than RIL e. More likely to get res ipsa where there is no reciprocal risk- because it is an indicator that the defendant had exclusive control of the instrumentality (Wyndemere) f. Π is not required to negate other possible causes (Wyndemere)


The Thing speaks for itself. It is a form of circumstantial evidence, the rationale is that facts can sometimes be inferred from other facts. Res Ipsa allows the jury, based on evidence about the accident itself, to infer that it must have resulted from some negligent act of the defendant. To invoke res ipsa, plaintiff must show that under the circumstances negligence is more probable than not (Koch, Cosgrove), and must show

OLD RULE1. The Instrumentality at issue is within the defendant’s exclusive control (Is a flexible term-Giles) (Cannot have more than one Δ with the exception of Collins) 2. Accident is of the type that doesn’t ordinarily happen without some negligence 3. Plaintiff and 3rd parties didn’t cause or contribute (Is flexible too, can have contributory neg., Giles) (Valley and Eaton for all 3 rules) * Crucial impact of res ipsa loquitur is that it allows
plaintiff‘s case to go to the jury even though he has not proved a specific act of negligence

* Majority: Res Ipsa creates an inference of negligence that allows you to survive summary judgment and go to the jury- then jury then decides if it wants to accept or reject the inference—plaintiff still has burden of proving the rest of the elements- injury and causation *Minority: Res Ipsa creates a rebuttable presumption of negligence- the burden shifts to the defendant to prove that he is not negligent— it is presumed more likely than not that a duty was breached—better for plaintiffs—if defendant

If you make a mess, clean it up (but don‘t have to stop making the mess as long as you pay for it). Question is who made the mess and who has to clean it up.

INJURY: Rule: Plaintiff must suffer a legally cognizable harm Preston v Cestaro 4 things to be aware of: 1. injury must have resulted due to the defendant‘s breach of duty; 2. injury can be a loss of market value in many instances; 3. at common law emotional distress alone are not legally cognizable injuries; what the advent of IIED and negligent injury of emotional distress have helped to resolve this 4. At common law future risks created by negligence generally don‘t count as injuries— this may have changed a bit with the lost chance doctrine * Also plaintiff cannot recover damages if there was no injury suffered-because injury is an element of the prima facie case

Note: causing inpermanent bodily change but no pain = no injury – (orphan) LOST CHANCE DOCTRINE IN ACTUAL CAUSATION SECTION

If you make a mess, clean it up (but don‘t have to stop making the mess as long as you pay for it). Question is who made the mess and who has to clean it up. 1. Traditional- Plaintiff must prove that as a result of the defendant‘s negligence, the plaintiff was deprived of at least 51% chance of a more favorable outcome than they actually received. Once a plaintiff meets this burden, they would recover damages for the entire preexisting illness or condition. 2. Variation of Traditional- The causation requirement is relaxed by allowing the plaintiff to submit their cases to the jury upon demonstrating that a defendant‘s negligent more likely than not increased the harm to the plaintiff or destroyed a substantial possibility of achieving a more favorable outcome. If jury buys it- can get 100% recovery. 3. Lost Opportunity—majority ruleThe lost opportunity for a better outcome is, itself, the injury for which the negligently injured person may recover. The plaintiff will prevail if they can show more likely than not that defendant increased the risk of harm, but damages are limited to the value of the lost opportunity. Thus if defendant by their negligence eliminated a plaintiffs 40% chance of survival, the plaintiff would be able to recover 40% of damages.

ACTUAL CAUSE: 3 ways to establish: 1. But for X (most common) (Salinetro v Nystrom) 2. Substantial Factor Test (Anderson v. Minneapolis, Dillon v. Twin) when two or more causes concur to bring about an event, then cause-in-fact is established by the substantial factor test- was the actors action a substantial factor in bring about the harm 3. Summers v. Tice rule: where there are multiple defendants, but only one caused the harm, they can both be held liable and it is up to the defendants to apportion liability (only works if Π can prove all Δ‘s were negligent (Doe v. Baxter))—do joint and several or comparative, pg. 10)

LOST CHANCE: d. Lost Chance—its own animal- could talk about it under causation because of policy considerations(But for works with 3. All work with substantial factor test, none work with Summers.) If general do #3, and why others no. If asked to apply lost oppt. Apply approach from Lord v. Lovitt, also apply all 3 in essay-

* Lord v Lovett- p 225 plaintiff broke her neck and doctors misdiagnosed her injury causing her to lose the opportunity for a better recovery. Court held that plaintiff may recover for lost opportunity where defendant’s alleged negligence aggravates the plaintiffs injury and deprives them of a better outcome. * McDaniel v.Org- if Π would not have taken advantage of lost opp. Then no damages, but this should go to a jury (Jorgenson v. Vener) * Alexander v Scheid- radiologist reported density on lung and concluded the dr should follow up, dr didn‘t and mass grew and metastasized. Can proceed because of lost opportunity- here no problem with causation- so suggests that lost chance can be a part of causation or in changing the injury * Verdicchio- Plaintiff couldn‘t prove whether cancer had metastasized at the time of misdiagnosis. Court says irregardless, the chance for better recovery was reduced and plaintiff could recover. Had 85% of survival if cancer had not metastasized at time of misdiagnosis and 30% chance of survival if it had. 55% x 5m = 2,750,000 = value of lost opp. * If defendant‘s negligence eliminates the plaintiff‘s chance of survival he could be held liable for that percentage of chance—i.e. Lost Opportunity

If you make a mess, clean it up (but don‘t have to stop making the mess as long as you pay for it). Question is who made the mess and who has to clean it up.
* Hypo: Assume that a woman is pregnant and that she is bleeding from her rectum. She tells her OB this, but the OB says that some bleeding is normal and the patient doesn‘t worry about the bleeding anymore. After she delivers, she is still bleeding and sees her primary care doctor who has her screened for colon cancer. It turns out that she has stage 3 colon cancer. The doctor‘s negligent act did not create the cancer, but let‘s say that if the cancer had been caught sooner there is a 49% chance it would have been stage 2 cancer and not stage 3. Survival rates from stage 2 cancer are substantially higher (80%) than survival rates from stage 3 cancer (40%). * Traditional Approach: No one knows whether cancer was at stage 2 or 3 when the woman first complained. If it was at stage 3 (here, there is a 51% chance of this), then the woman‘s damages would be $0 because there was not greater than 51% chance of survival- only 51%. * Modified Traditional Approach- if 40% is more likely than not, based on the evidence- then full recovery * Lost Opportunity- Majority Rule- the chance of survival was reduced by 40%- difference between stage 2 and stage 3. (Multiply value of life x lost % chance)= value of lost opportunity. (5 million x 40%) = 2 million. There is a 49% chance she will suffer $2M in damages (lost chance) and a 51% chance that catching cancer sooner would have made a difference ($0 in damages) –so 49% x 2M + 51% x 0 = 980,000 ( % chance it would have been stage 2 x value of lost opportunity) + (% it would already be at stage 3 x damages allowed) = damages awarded if cancer was at stage 2 when misdiagnosis occurred

v. Washington, Abrahms v. City of Chicago both not within scope) b. Class of Persons: is the person affected by the act, the class of person foreseenonly liable to the classes of persons risked by negligence- defendant‘s conduct is not a proximate cause when the defendant could not foresee harm to persons situated as the plaintiff is (Palsgraf v. Long Island Railroad (not in class), Mellon v. Holder (not in class and not forseeable) EXCEPTION TOFORSEEABILITY: if you put
someone at a risk of harm and it is foreseeable that they would need rescue, the scope of risk then expands to include the rescuer in the class of persons that are foreseeable - Rescuer can recover from the defendant whose negligence prompts the rescue—this includes cases where the defendant negligently injures or endangers himself and the plaintiff is injured in attempting a rescueonly those who are in close proximity in time and distance to the party requiring assistance are within the class of potential rescuers and a rescuer must in fact attempt to rescue someone (Wagner v International RR)

PROXIMATE CAUSE -Is the harm of the same general nature that was created by the Δ‘s negligence [WHEN DOING ANALYSIS DO IN TERMS OF NARROW V. BROAD CONSTRUAL, use policy and particular facts applied to rules] Ways to think of: 1. (One to focus on) Scope of risk/forseeability (: type of harm; class of person; manner of occurrence/extent of harm) 2. Intervening Tortfeasor 3. Policy Considerations, we have to draw a line in causal continuum somewhere 4. Duty, what would a RPP do? Apply Learned Hand formula. SCOPE OF RISK (also look at manner/extent; cut off liability, acts of god): a. Type of Harm- compare what is foreseeable with what actually happeneddefendant is only liable for types of injuries risked by his negligence- - if a reasonable person would foresee no harm to anyone as a result of his actions- do not reach issue of proximate cause (Medcalf

Other considerations (Notes) 1. Manner of Occurrence- Manner of occurrence doesn‘t really matter unless it is completely unique and therefore unforeseeable (Hughs v. Lord Advocate, Doughty v. Turner) 2. Extent of Harm- if you harm the plaintiff then you are responsible for everything that happens to them
Thin Skull Rule: Restatement 435(1)Rule: When defendant‘s conduct otherwise qualifies as a proximate or legal cause of the plaintiff‘s harm, the defendant does not escape liability merely because the harm was more extensive than anyone foresaw or could have foreseen Fire Cases- extension of thin skull- when a person‘s negligence starts the fire, they are equally liable for the consequences whether they foresaw them or not

2. Intervening Tortfeasor- When tortfeasors act in sequence, the first tortfeasor will often argue that the second is an intervening cause that supersedes him and cuts off liability— an intervening cause that lies within the scope of the foreseeable risk, or has a reasonable connection to it, is not a superseding cause (Austenmiller v. Dostek, Deridian v. Felix) (Not

If you make a mess, clean it up (but don‘t have to stop making the mess as long as you pay for it). Question is who made the mess and who has to clean it up. forseeable: Sheehan v. City of New York, Ventricelli v. Kinny) - any unfolding events caused by ∆‘s negligent act and π‘s injury even though bizarre could be foreseeable and proximate—up to the jury to decide (Marshal v. Nugent) -If you are neg. then injuries that happen after you are held liable for as well (Anaya) - If it is foreseeable that negligent action will cause intervening tortfeasors to come forward, then that brings more people within the class of persons in the scope of risk - If the intervening tortfeasor was intentional then likely to cut off liability (Watson v. Kentucky and Indiana Bridge and RR) (Policy: New with intentional tortfeasors: compensation, you as a business have a duty (to x, install y) because of your financial gain) SOR: TERMINATION OF RISK: shifting responsibility- when an intervening tortfeasor steps in, original tortfeasor‘s liability gets cut off and all responsibility gets shifted to intervening -tortfeasor (Pittsburg v. Horton, Kent v. Commonwealth) SOR:INTERVENING FORCES OF NATURE: intervening ‗acts of god‘ can cut off liability unless they are foreseeable—i.e. if you build in San Francisco and don‘t take earthquakes into consideration when you construct—you are liable because it is foreseeable there could be an earthquake

Calm Waters analogy: cuts off liability

If you make a mess, clean it up (but don‘t have to stop making the mess as long as you pay for it). Question is who made the mess and who has to clean it up. them to get contribution elsewhere-plaintiff bears risk of this if defendant is judgment proof.

ASSESSING DAMAGES - Joint and Several Liability- you can enforce the claim against any tortfeasor, and if one tortfeasor pays the entire amount they can get ‗contribution‘ from the other tortfeasor for their proportional amount; better for plaintiff- more likely to be compensation— not really applicable in comparative fault jurisdictions any more - Comparative Fault/Several Liability- Plaintiff‘s recovery is generally reduced by their negligence to reflect their fault; and each faulty party must bear their share of losses. Here, the tortfeasor is only responsible for their portion of the claim—prodefendant rule in that they only have to pay there share—plaintiff can‘t get all of their money from one party and then expect

If you make a mess, clean it up (but don‘t have to stop making the mess as long as you pay for it). Question is who made the mess and who has to clean it up. reason- gives flexibility to jurors; negatives- allows for prejudice without justification Restatement 3rd of Torts §8 Factors for assigning shares of responsibility include: a. nature of the person‘s riskcreating conduct, including awareness or indifference with respect to the risks created by the conduct and any intent with respect to harm created; and b. Strength of the causal connection between the person‘s risk-creating conduct and the harm

DEFENSES TO NEGLIGENCE 1. Trad/Common Law Contributory Negligence: Rule: no matter how small plaintiff‘s liability is, there is no recovery (Butterfeild v. Forrestor) (very few states use) 2. Pure Comparative Fault- look at plaintiff‘s % of fault and that reduces the verdict 3 Modified Comparative Fault: A. Sollin: plaintiff gets recovery only if their fault is less than all other defendants49% or less. (Sollin v. Wangler) B. Wisconsin- plaintiff only recovers if their fault is equal to or less than others so 50% or less (Wassel v. Adams) c. Maine Rule: requires the jury to make a reduction of damages based on what it considers to be equitable and just. –policy

Rescue Doctrine and Comp. Fault: -there is no comparative fault on the part of the rescuer unless the rescuer acts recklessly—encourages policy of protecting and encouraging rescuer (Ouelette v. Carde) - rescue doctrine applies even when a 2nd rescuer is rescuing the rescuer—this applies as long as it is foreseeable that someone might have to save the rescuer (Govich v. North American System)

EXCEPTIONS WHEN YOU ARE DEALING WITH TRAD/COMMON LAW CONTRIBUTORY NEG. a. Last Clear Chance Doctrine- Under traditional contributory negligence, if the defendant could/should have discovered plaintiffs peril, then the defendant must bear 100% of the responsibility—cuts off all liability of the negligent plaintiff  Under Comparative fault this is no defense- Courts will just assign % of fault to π and ∆

If you make a mess, clean it up (but don‘t have to stop making the mess as long as you pay for it). Question is who made the mess and who has to clean it up. b. Plaintiff’s Illegal Activity- Generally, if plaintiff was harmed negligently while engaging in illegal activity they wouldn‘t recover. (Baker v. Kallas, Alami v. Volkswagon, Zysk v. Zysk)  Some jurisdictions have relaxed this, particularly comparative fault—where they just assign percentages c. Intentional/Reckless Conduct- A plaintiff
charged with contributory negligence was traditionally allowed a full recovery against a reckless or wanton defendant.  * In comparative fault jurisdictions- reckless actions % of fault are assigned; in the case of intentional actions- plaintiff‘s liability is still cut off

d. Mitigation- Traditional rule: If you fail to mitigate/minimize damages then you lose out on the entire damages because you are seen as an intervening tortfeasors; under comparative faultjust apportion fault Instances where Comparative Fault Won’t Apportion Liability/Contributory Negligence Not Available Intentional/Intervening Tortfeasors, and Other Public Policy Reasons -Hold Dr.s accountable, even when Π is at fault for original injury (Mercer v. Vanderbilt University) -Special rules for manufacturers need to have safety precautions (Bexiga v. Havir) -Self abuse or destructive acts cut off neg. (ex. Suicide, McNamara v. Honeyman) -You are allowed to take risks to own property (Leroy Fibre v. Chicago M and St.P)

2. Is the service provided essential or was it a choice? If it is essential then the release is probably invalid (Tunkl v. Regents of University of CA) 3. What is the scope of the agreement? Does the scope of the agreement include the particular injury—in torts the scope generally only includes the type of negligence that is inherent in the type of activity itself (Moore v. Hartley Motors) 4. All other general contracting procedures (Lack of capacity, coercion, consideration) 5. Was it a K of adhesion (generally not okay because of policy reasons) 2.Implied assumption of risk-in comparative fault- this is not a defense, goes under breach analysis- for exams do analysis under both— Use Crews analysis 1Did the plaintiff have knowledge of the risk—objective test-Reasonable person 2Did the plaintiff appreciate the riskobjective/fact specific test 3Did the plaintiff voluntarily expose himself/herself to that risk? (Crews v. Hollenbach) Do this when analyzing in breach or here Dobbs Law of Torts- Traditional assumed risk rules
find tacit consent when the plaintiff, knowing of the risk and appreciating its quality, voluntarily chose to confront it. Dobbs argues that you don‘t really need assumption of risk as a bar in a comparative fault system. Because the consent really goes to effect the duty of the defendant—if the plaintiff consents to a type of risk, this changes the duty owed.

**only applies to nonstrangers/ASSUMPTION OF RISK (DEFENSE) 1. Contractual Assumed Risk: Restatement Rule- Parties should be able to contract with each other and this should be binding—so whenever there is a valid contract, it should bar all of plaintiffs claims -Things to Consider when trying to figure out whether the release should be valid and binding: 1. Did the plaintiff have bargaining power? (If 2 are sophisticated then less valid)

Prevailing Rule for Implied AOR -If a plaintiff is reasonable in facing a risk, she is not negligent except when she unreasonably confronts a known risk then her negligence in doing so reduces recovery of damages (Betts v. Crawford) Restatement: if you have a contractual assumption of risk, then defendant is relieved of all liability; but if there is an implied assumption

If you make a mess, clean it up (but don‘t have to stop making the mess as long as you pay for it). Question is who made the mess and who has to clean it up. of risk- then defendant‘s liability maybe reduced by comparative fault percentages 3. Assumed Risk as a Limited Duty/No Negligence on part of Defendant The plaintiff only assumes the risk that are inherent in the activity in which they are engaging, they don’t assume the additional risk created by the defendants negligence (Siragusa v Swedish Hospital, Sunday v Stratton Corp.)  Assumption of risk in comparative fault jurisdiction is no real defense; you just go up to the analysis of breach in that the consent/assumption of risk given is a factor in the consideration of the circumstances. In other words, when you assume the risk inherent in the activity then you relieve the duty of the defendant in this regard. (Turcotte v. Fell)  In sports cases analyze under what Δ’s duty under the circumstance were (Gauvin v. Clark- MA) 1. Accrual Rule: At the time of the first exposure to the tort, even though the individual may not know of it- rule from Crumpton and Shearin (least Π friendly) 2. Whenever the last exposure to the treatment or when employment was terminated 3. Discovery Rule-Majority Rulethe statute begins to run when the plaintiff discovered or should reasonably have discovered the injury; when you find perm. Injury and know Δ role. just because you suspect a danger it doesn‘t necessarily count as discovery; but if everyone knows of a particular danger then the statute of limitations beginsSciele 4. Extended discovered, permenant damage and role. 5. Actionable Injury Rule- minority rule- the statute doesn‘t start running until plaintiff discovered or should have discovered both negligence and causation (if doc tells you SOL runs, if is common K then SOL runs) ANALYZE ALL APPLICABLE Things that will Toll the Statute of Limitations: 1. If someone purposefully conceals information from the plaintiff to prevent a law suit- acting fraudulently will toll the statute— but, wearing a mask to conceal your identity during the tort will not toll it because it is not purposeful concealment to bringing the suit 2. Tolling for disabilities- generally the statute will be tolled for minors or mental incompetence 3. AZ tolling statute- incarcerated persons when disc/ release from prison, whichever 1st

In Trad. Comparative Fault: Δ MA: Duty Turcotte/NY: Duty, Δ If no jurisdiction: Breach, Δ

STATUTE OF LIMITATIONS Statute of Limitations- Under state law, you have a certain amount of time to bring your claim and if you don‘t bring your claim during that period of time you are out of luck. Approaches to when the Statute of Limitations will begin:

If you make a mess, clean it up (but don‘t have to stop making the mess as long as you pay for it). Question is who made the mess and who has to clean it up. 4. Equitable Estoppel- if there is an affirmative misrepresentation, and the plaintiff relies on this to their detriment-this will toll the statute—i.e. doctor says he works for a private practice, but turns out he is state employee Note: Notice Bar- some states will require the plaintiff to give notice before filing-this will in essence shorten the statute of limitation

ADDT DEFENSES 1)Compliance with Statute Miller v Warren- hotel didn‘t have smoke detectors and customers got injured during fire. But the building code did not require smoke detectors. Holding: Complying with a regulation is competent evidence of due care, but not conclusive evidence of due care  Compliance with a statute or regulation is not a defense. Statutory requirements usually reflect the minimum standard of care. Compliance with the statute is some evidence of due care 2)Preemption Preemption- generally if there is a conflict between fed and state law, or there is an area where fed law occupies the field- the fed law trumps state law 2 ways: 1. Case law- judges determine if fed trumps state law; meaning if there is a state cause of action is preempted by federal law means that you don‘t have a state claim- but you can still bring federal claim 2. Federal statute or law specifically says that federal law trumps state law (FDA does not bar)

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