INTENTIONAL TORTS OUTLINE 1) INTENT a) Garret v. Dailey i) Boy pulls chair out from π as π sits down. ii) If Boy knows with substantial certainty that a particular effect will occur as a result of his action, he is deemed to have intended that result. b) Spivey v. Battaglia i) Friendly unsolicited hug by ∆, who knew that π was shy. ii) Π suffered damages from hug, filed suit for assault and battery & negligence. iii) Intent (battery)—knowledge with a substantial certainly of harmful or offensive contact. iv) Negligence—when a danger is only a foreseeable risk, which a reasonable person would avoid. v) ∆ held liable for negligence because the ∆ did not know with substantial certainty that there was a harmful or offensive contact, so the risk was only foreseeable. c) Ranson v. Kitner i) Hunter shot what he thought was a wolf, but instead was plaintiffs dog. ii) It it’s the intent to invade the interest of another that matters. (GENERAL RULE) iii) Doctrine of Mistake is an exception to the general rule. (1) Generally, mistake to the identity of the person or animal does not negate intent. If he were not held liable for his mistake, he would be unjustly enriched. iv) Knowledge with substantial certainty that harm will occur.—required for intentional tort. d) McGuire v. Almy i) Mentally insane woman attacked her caretaker. ii) The particular intent that would be necessary in order to render a normal person liable, the insane person, in order to be liable, must have been capable of capable of entertaining that same intent and must have entertained it in fact. iii) ∆ was capable of entertaining and did entertain the intent to strike and injure π, and she acted upon that intent, therefore, she was liable. e) Talmage v. Smith i) ∆ threw stick intending to hit boy other than π. ii) Transferred intent: Law recognizes that intent can transfer from one cause of action to another and from one person to another. iii) There are 5 torts that fall within the trespass writ: battery, assault, false imprisonment, trespass to land, and trespass to chattels. When ∆ intends any one of the 5, and accidentally accomplishes any 1 of the 5, the doctrine applies and the ∆ is liable. 2) BATTERY a) Cole v. Turner i) Battery—intentional infliction of harmful or offensive contact. ii) What elements are necessary for cause of action? (1) The intent to bring about a harmful or offensive contact. (2) Knowledge with substantial certainly that my actions will bring about a harmful or offensive contact. iii) It is a reasonableness standard that is applied to the offensive contact. b) RESTATEMENT (SECOND) OF TORTS (1965) i) "§ 13. Battery: Harmful Contact (1) "An actor is subject to liability to another for battery if: (a) "He acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) “A harmful contact with the person of the other directly or indirectly results." ii) "§ 18. Battery: Offensive Contact (1) "An actor is subject to liability to another for battery if: (a) "He acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) “An offensive contact with the person of the other directly or indirectly results. (2) “An act which is not done with the intention stated in Subsection (1, a) does not make the actor liable to the other for a mere offensive contact with the other's person although the act involves an unreasonable risk of inflicting it and, therefore, would be negligent or reckless if the risk threatened bodily harm.'' c) Fisher v. Carrousel Motor Hotel, Inc. i) Plaintiff was waiting in line at a luncheon buffet, when an employee of the hotel snatched the plate out of the plaintiff’s hand and shouted, “Negro could not be served in the club.” Plaintiff was not actually touched, and there was no physical injury; but the plaintiff was highly embarrassed and hurt by the conduct in the presence of his associates. ii) To constitute an assault and battery, it is not necessary to touch the plaintiff’s body or even his clothing; knocking or snatching anything from plaintiff’s hand or touching anything connected with his person, when done in an offensive manner, is sufficient.” 3) ASSAULT a) I de S et ux. V. W de S. i) ∆ struck a hatchet into the door to the tavern as π’s wife stuck her head out, causing her a great fear of injury and assault. ii) Assault can still occur even though no physical harm is done. iii) Great-grandparent of all assault cases. b) Western Union Telegraph Co. v. Hill. i) ∆ allegedly made lewd comments and tried to grope π’s wife in the clock shop. ii) To constitute an actionable assault there must be an intentional, unlawful, offer to touch the person of another in a rude or angry manner under such circumstances as to create in the mind of the party alleging assault a wellfounded fear of an imminent battery, coupled with the apparent present ability to effectuate the attempt, if not prevented. (1) The well-founded fear has to be of an imminent battery, and the apparent ability to effectuate the attempt, if not prevented. 4) FALSE IMPRISONMENT a) Big Town Nursing Home, Inc. Newman. i) Π was checked into ∆’s nursing home, and when π tried to leave ∆ did not let him. ii) Π escaped and ∆ went after and captured him several times. iii) False imprisonment is the direct restraint of one person of the physical liberty of another without adequate legal justification. (1) If a way of escape is left open which is available without peril of life or limb, no false imprisonment. (2) If one exit of a room or a building is locked with the plaintiff inside, but another reasonable means of exit is left open, there is no false imprisonment. (3) A means of escape is not a reasonable one if the plaintiff does not know of its existence, and it is not apparent. iv) The cause of action is protecting his physical liberty. (1) The dignity of the individual is the interest that the cause of action is protecting. (2) The physical damage to the individual is said not to be necessary. v) Words by them selves maybe sufficient to have a cause of action for false imprisonment. vi) It is the restraint to a particular area; not restraint from a particular area that constitutes false imprisonment. vii) Intentional infliction of confinement; (1) Intent can be proven by showing ∆ had knowledge with substantial certainty. b) Parvi v. City of Kingston i) π was taken to the outskirts of town by the police while he was intoxicated, and π said he could not recall the incidents of that night. ii) In the case Broughton v. State of New York the held that, “…false imprisonment, as a dignitary tort, is not suffered unless its victim knows of the dignitary invasion. iii) Restatement (Second) of Torts § 42 too has taken the position that there is no liability for intentionally confining another unless the person physically restrained knows of the confinement or is harmed by it. iv) The court failed to distinguish between a later recollection of consciousness and the existence of that consciousness at the time when the imprisonment itself took place. (1) Just because the plaintiff cannot recall his imprisonment today, is a far cry from saying that he was not conscious of his confinement at the time when it was actually taking place. (2) At the very least, then, it was for the jury, in the first instance, to weigh credibility, evaluate inconsistencies and determine whether the burden of the proof had been met. c) Hardy v. LaBelle’s Distributing Co. i) Π was led to interrogation room because she was suspected of stealing. ii) The two key elements of false imprisonment are: (1) The restraint of an individual against his will, and (2) The unlawfulness of such restraint. [The individual may be restrained by acts or merely by words which he fears to disregard.] iii) The issue of whether the plaintiff actually had the frame of mind that she was being held against her will should have been left up to the jury. d) Enright v. Groves i) π was arrested for not showing her drivers license on demand of a police officer questioning her in her front yard about a dog off its leash. ii) False arrest arises when one is taken into custody by a person who claims but does not have proper legal authority. –W. Prosser, Torts §11 (4th ed.) iii) Court found no statute or case law in the jurisdiction which requires a citizen to show a driver’s license upon demand, unless, for example, she is a driver of an automobile and such a demand is made in that connection. iv) There must be restraint forced upon the plaintiff, but the apparent legal authority of the officer may create that state of mind in the plaintiff. e) Whittaker v. Sanford i) Π was restrained by ∆ to his yacht once they reached the American harbor from Israel. ii) Did the defendant, by not furnishing the plaintiff with a means to go to shore form his yacht, constitute a cause of action for false imprisonment? (1) The court instructed the jury that the plaintiff must show that the restraint was physical, And not merely a moral influence. (2) It is not necessary for the physical restraint to be such that the defendant physically touch, or held the plaintiff, but instead, (3) The restraint may be made by physical means; physical restraints, such as walls and a locked door, keep the plaintiff from escaping. (4) In this case the water between the boat and the shore served as that physical restraint. (5) The boat is analogous to a key to a locked door in this case. (6) By refusing the boat the defendant was turning the key, and thus locking the door. (7) The jury was warranted in finding that the defendant was guilty of unlawful imprisonment. The evidence is that the defendant refused her a boat. The defendant’s refusal was wrongful. (8) No false imprisonment if there is a reasonable means of escape. (a) Reasonable: if π’s use of it would not be physically dangerous to the π, harmful to his clothing, “offensive” to his “reasonable sense of decency or personal dignity,” or dangerous to some third person. 5) INTENTIONAL INFLICTION OF MENTAL DISTRESS a) State Rubbish Collectors Ass’n v. Siliznoff i) Siliznoff collected trash from Acme Brewing Co. ii) State, by the use of threats, coerced Siliznoff to sign notes of payment for the Acme Brewing Co. iii) One who, without privilege to do so, intentionally causes severe emotional distress to another is liable (a) for such emotional distress, and (b) for bodily harm resulting from it.” [Amended section 46 of the Restatement of Torts in 1947.] iv) A cause of action is established when it is shown that one, in absence of any privilege, intentionally subjects another to mental suffering incident to serious threats to his physical well-being, whether or not the threats are made under such circumstances as to constitute a technical assault. v) Calif. was the first state to adopt this attitude toward mental suffering and duress. b) Slocum v. Food Fair Stores of Florida. i) π alleges intentional infliction of emotional distress becuase ∆’s employee called her a name. ii) π seeks to recover damges from heart condition she alleges was aggrivated because of the actions of ∆’s employee. iii) Courts said that they don’t have to decide if there is a new tort for mental and emotional distress because that issue is clearly not present in this case. iv) The tort of intentional infliction of emotional distress is actionable standing alone if the following elements are satisfied: (1) The conduct must be intentional or reckless. (2) The conduct must be extreme and outrageous. (3) There must be a causal connection between the wrongful conduct and the emotional distress. (4) The emotional distress must be severe. c) Harris v. Jones i) ∆ teased π about his speech impediment at work. ii) The tort of intentional infliction of emotional distress is actionable standing alone if the following elements are satisfied: 1. The conduct must be intentional or reckless. 2. The conduct must be extreme and outrageous. 3. There must be a causal connection between the wrongful conduct and the emotional distress. 4. The emotional distress must be severe. iii) Harris’ humiliation was not so severe as to be recognized as actionable by itself. iv) Harris only sought a doctor once, and in the same manner that he was doing so before the claimed intentional infliction of emotional distress. He did not show the medical evidence to support his claim. v) Knowledge of sensitivity + environment. d) Taylor v. Vallelunga i) Vallelunga and others severely beat Taylor’s father. Taylor witnessed the beating and as a result suffered fright and severe emotional distress. No physical injury was alleged. Vallelunga unaware that Taylor was watching. ii) To recover for his own emotional distress, a plaintiff must show that the defendant could reasonably foresee the plaintiff’s presence. Intent to injure a third party is insufficient. iii) Extremely outrageous conduct directed against third parties, intentionally or with reckless disregard of the consequences, that cause severe emotional distress in the plaintiff, may be enough to hold defendant liable if such distress is accompanied by bodily harm. Restatements (Second) iv) Transferred intent does not apply to infliction of emotional distress. v) Reasonableness standard applied to Intentional Infliction of Emotional Distress. (1) Exception: when the ∆ knows that the π is unusaully sensitive. 6) TRESPASS TO LAND a) Trespass to land occurs when the ∆ enters the π’s land, or causes another person or an object to enter the π’s land. b) A person’s unlawful entry on another’s land that is visibly closed. i) This tort consists of doing any of the following without lawful justification: (1) Entering upon land in the possession of another (2) Remaining on the land (3) Placing or projecting any object upon it. c) Dougherty v. Stepp i) ∆ entered π’s land to survey adjacent property and did not cause any damages. ii) There does not have to be actual damages for an action of trespass. iii) Every unauthorized, and therefore unlawful entry, into the close of another, is trespass. d) Bradley v. American Smelting and Refining Co. i) Plaintiff claims that the microscopic particles emitted from defendant’s factory caused a trespass upon his land. ii) “If the intrusion interferes with the right to exclusive possession of property, the law of trespass applies.” iii) “If the intrusion is to the use and enjoyment of property, the law of nuisance applies.” iv) When airborne particles are transitory or quickly dissipate, they do not interfere with the property owner’s possessory rights and, therefore, are properly denominated as nuisances. v) When, however, the particles or substance accumulates on the land and does not pass away, then a trespass has occurred. vi) In citing Borland v. Sanders Lead Co., the court finds that the remedies of nuisance and trespass are not necessarily mutually exclusive. vii) Trespass action for pollutants only allowed by πs who suffered “actual and substantial damages” e) Herrin v. Sutherland i) Defendant shot a shotgun at waterfowl, in the direction that the ammo trespassed over the airspace directly above the plaintiff’s soil. ii) Does an invasion of the airspace directly above the property of another constitute an action of trespass? (1) Yes, an invasion of the airspace directly above the soil does constitute an action of trespass. iii) The Restatement (Second) of Torts § 159, now provides that air travel is a trespass only if it “enters into immediate reaches of the air space next to the land, and * * * interferes substantially with others’ use and enjoyment of the land.”—shows evolutions of the law. iv) The Restatement approach changes a fundamental aspect of the tort of trespass from (Dougherty v. Stepp) “…every unauthorized, and therefore unlawful entry, into the close of another, is a trespass.” f) Rogers v. Board of Road Com’rs for Kent County i) Defendants contracted with the plaintiff’s to erect a snow fence on their property, and to remove it after each snow season. Defendants failed to remove the posts to the fence after the snow season. Plaintiff’s husband ran over the post with a moving machine and died from the injuries sustained. Plaintiff sued for an action of trespass against the defendants for leaving the post on the property after the privilege to do so had expired. ii) “§ 160. Failure to remove a thing placed on the land pursuant to a license of other privilege.” (1) “A trespass, actionable under the rule stated in § 158, may be committed by the continued presence on the land of a structure, chattel or other thing which the actor of his predecessor in legal interest therein has placed thereon: (a) With the consent of the person then in possession of the land, if the actor fails to remove it after the consent has been effectively terminated, or (b) Pursuant to a privilege conferred on the actor irrespective of the possessor’s consent, if the actor fails to remove it after the privilege has been terminated, by the accomplishment of its purpose or otherwise.” Restatement of the Law, Torts, p.368 (2) Strict liability for failure to remove property from π’s property only if there are actual damages suffered. 7) TRESPASS TO CHATTELS a) Chattel: movable or transferable property; esp. personal property. b) If trespass is dispossession then don’t need to prove actual damages; If trespass is intermeddling then need to prove actual damages [girl on dog] c) Trespass to chattels occurs when the ∆ “intentionally interferes” with the π’s “use or possession” of “a chattel”. d) Glidden v. Szybiak i) Π was bitten by ∆’s dog, and ∆ claimed trespass to chattels as a defense. ii) Π could recover because there was no harm to the chattel [the dog], therefore no trespass to chattel. iii) Trespass of Chattels [Restatement of the Law of Torts, s.218]: “One who without consensual or other privilege to do so, uses or otherwise intentionally intermeddles with a chattel which is in possession of another is liable for a trespass to such person if, (1) The chattel is impaired as to its condition, quality or value, or (2) Bodily harm is thereby caused to the possessor or harm is caused to some person or thing in which the possessor has a legally protected interest.” (a) In comment (f) to clauses (a) and (b), it is pointed out that “the interest of a possessor of a chattel in its inviolability, unlike the similar interest or a possessor of land, is not given legal protection by an action for nominal damages for harmless intermeddlings with the chattel. (b) Sufficient legal protection of the possessor’s interests in the mere inviolability of his chattel is afforded by his privilege to use reasonable force to protect his possession against even harmless interference.” iv) Liability of owner. Any person to whom or to whose property damage may be occasioned by a dog not owned or kept by him shall be entitled to recover such damage of the person who owns or keeps the dog, or has it in possession, unless the damage was occasioned to him while he was engaged in the commission of a trespass or other tort. v) Trespass is now applicable to any physical interference with a chattel in the possession of the plaintiff. vi) Trespass to chattels in now quite universally limited to intentional interferences with them. e) CompuServe Inc. v Cyber Promotions, Inc. i) π have requested that ∆ cease and desist sending mass-emails to its subscribers using π’s computer services. π claims that ∆’s actions: 1. puts a strain on the ablilty of their services to run efficently. 2. Angers its subscribers to the point of terminating services. π contends that the ∆ are trespassing upon its personal property. ii) The Restatement § 217(b) states that a trespass to chattel may be committed by intentionally using or intermeddling with the chattel in possession of another. iii) Restatement § 217, Comment (e) defines physical “intermeddling” as follows: ...intentionally bringing about a physical contact with the chattel. The actor may commit a trespass by an act which brings him into an intended physical contact with a chattel in the possession of another. iv) Electronic signals generated and sent by computer have been held to be sufficiently physically tangible to support a trespass cause of action. v) Restatement (Second) of Torts § 218 defines the circumstances under which a trespass to chattels may be actionable: One who commits a trespass to a chattel is subject to liability to the possessor of the chattel if, but only if, (1) he dispossesses the other of the chattel, or, (2) the chattel is impaired as to its condition, quality, or value, or, (3) the possessor is deprived of the use of the chattel for a substantial time, or, (4) bodily harm is caused to the possessor, or harm is caused to some person or thing in which the possessor has a legally protected interest. 8) CONVERSION a) Conversion occurs when ∆ so “substantially interferes” with π’s possession or ownership of property that it is fair to require ∆ to pay the property’s full value. b) Pearson v. Dodd i) Pearson snuck into Dodd’s office after hours; photocopied documents from Dodd’s file cabinet, and then replaced those documents, undamaged, back from which they came. ii) The Restatement (Second) of Torts has marked the distinction by defining conversion as “* * * An intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel.” iii) The removal and subsequent replacement of the documents does not constitute conversion so long as the documents are not important, basically they do not fall into one of these non-exclusive categories: (1) Ideas formulated with labor and inventive genius; such as literary works or scientific research. (2) Documents that constitute instruments of fair and effective competition. (3) Documents intended for sale as a commodity by the producer of such documents. iv) The theory of trespass to chattels was that the plaintiff remained the owner of the chattel, with possession merely interrupted or interfered with, so that when the chattel was returned, the owner had to accept it and recovery was limited to damages to the chattel, or to reimbursement for the time it was missing. v) The theory of trover was that the ∆, by “converting” the chattel to the ∆’s use had appropriated the π’s property, for which he was required to make compensation—generally computed as market value at the time and place of conversion. The defendant did not have the option of simply returning the chattel and paying damages. vi) Under conversion, if there is a substantial interference with the possessor’s rights of the true owner, and the defendant treats that property as if it were their own, then there is a cause of action for conversion. vii) Replevin—requires the return of property that is mine that is in your possession. viii) Mistake will not negate the intent for conversion. I mistakenly take your book, there is still a conversion. ix) Court takes the following for factors into account when determining conversion: (1) Dominion of the chattel (2) Good Faith of the ∆ (3) Harm done to the chattel (4) Inconvenience and expense caused to the π. Privileges Outline 1. Consent a. Except for trespass to lands, it is part of the π’s prima facia case to plead and prove lack of consent. Then the burden of proof is on the ∆. [Yes, I did that but the π consented.] b. O’Brien v. Cunard S.S. Co. i. Π held up her arm to be vaccinated by a doctor and never objected to the vaccination. ii. Π then sued for battery and ∆ raised the defense of consent. iii. If the π behavior was such as to indicate consent on her part, he was justifed in his act, whatever her unexpressed feelings may have been. iv. In determining whether she consented, he could be guided only by her overt acts and the manifestations of her feelings.—test applied. v. Test applied: whether a “reasonable person” in the position of the ∆ would believe that the π had consented to the invasion of his interests. c. Hackbart v. Cincinnati Bengals, Inc. i. A player for ∆’s team intentionally struck the backside of π’s head with enough force to knock both players to the ground. ii. The intentional actions of the ∆ were not consented to by the π, therefore π could bring tort laiblity suit for intentional battery. d. Mohr v. Williams i. π consented to an operation on her right ear ii. ∆, without π’s consent, proceeded to perform a successful operation on π’s left ear. iii. ∆ exceeded the scope of consent, therefore, liable for battery. iv. If, in the course of an operation to which the patient consented, the physician should discover conditions not anticipated before the operation was commenced, and which, if not removed, would endanger the life or health of the patient, he would, though no express consent was obtained or given, be justified in extending the operation to remove and overcome them. v. Medical care providers may act in the absence of express consent if: 1. The patient is unable to give consent (unconscious, intoxicated, mentally ill, or incompetent.) 2. There is risk of serious bodily harm if treatment is delayed. 3. A reasonable person would consent to treatment under the circumstances. 4. This patient would consent to treatment under these circumstances. vi. In the case of a minor child, consent of the parent is necessary to any major surgical operation, except in an emergency. e. De May v. Roberts i. π a women in labor, summons ∆ 1, a doctor, to her house to help her in child birth. ii. ∆ 1 has ∆ 2, a young unmarried man who is not a doctor [known only to ∆ 1], help him carry his things. iii. Π permits ∆ 2 to be present during the birth and hold her hand. iv. Π’s consent to ∆ 2’s presence ineffective, because it was a mistake induced by ∆ 1 and ∆ 2’ deceit. Therefore π may recover against both. v. Consent from mistaken identity is not valid consent. vi. Consent is ineffective if π is incapable of expressing rational will. vii. Misrepresentations of a material fact by the ∆, then there is no consent. f. Hart v. Geysel i. Cartwright and ∆ were involved in a prize fight. Both Cartwright and ∆ consented to the fight. ∆ killed Cartwright. ii. One who engages in prize fighting, even though prohibited by positive law, and sustains an injury, should not have a right to recover any damages that he may sustain as the result of the combat, which he expressly consented to and engaged in as a matter of business or sport iii. Majority: the π’s consent is ineffective if the act consented to is a crime. iv. Minority: [and Restatement (Second)] the π’s consent to the ∆’s criminal act is always effective even where a breach of the peace is involved. v. Π’s consent will be nullified if the ∆’s conduct violated a criminal statue designed to protect a class of persons to which the π belongs. 2. Self Defense a. Existence of Privilege. Anyone is privileged to use reasonable force to defend himself against a threatened battery on the part of another. b. Retaliation. The privilege is one of defense against threatened battery, and not one of retaliation. When battery is no longer threatened, the privilege terminates; and thereafter the original victim himself becomes liable for battery. c. Reasonable Belief. The privilege exists when the defendant reasonably believes that the force is necessary to protect himself against battery, even though there is in fact no necessity. d. Provocation. Insults, verbal threats, or opprobrious language do not justify the exercise of self defense. i. If the abusive words are accompanied by an actual threat of physical violence reasonably warranting an apprehension of imminent bodily harm, one may be privileged to defend. e. Amount of Force. The privilege is limited to the use of force that is or reasonably appears to be necessary for protection against a threatened battery. f. Retreat. The defendant must retreat if he can do so without increasing his danger, rather than stand his ground and use force. It is settled that he may stand his ground and use any force short of that likely to cause serious injury. g. Injury to Third Party. So far as “transferred intent” is concerned, the privilege of self-defense is carried over, and the defendant is held not to be liable to [Third Party] in the absence of some negligence toward him. 3. Defense of Others a. Nature of Privilege. The early common law recognized a feudal privilege in the master of the household to defend members of his family and his servants against attack. b. Reasonable Mistake. (a) Some courts hold that the intervenor steps into the shoes of the person he is defending, and is privileged only when that person would be privileged to defend himself. (b) Other courts hold that the defendant is privileged to use reasonable force to defend another even when he is mistaken in his belief that intervention is necessary, so long as his mistake was reasonable. The Restatement (Second) of Torts § 76, has adopted this position. 4. Defense of Property a. Property owner may only use reasonable force to protect the property. As much force as appears necessary. b. Owner must make a verbal demand that the intruder stop, before using force, unless it reasonably appears that violence or other harm will occur immediately, or that the request to stop will be useless. c. If the owner makes a reasonable mistake as to the danger represented by the intruder, then the owner’s actions will be privileged, provided that there is a real non-privileged intrusion. d. If the owner makes a reasonable mistake as to the intruder’s privilege, then the owner’s actions will not be privileged. e. Katko v. Briney i. ∆ places a spring-loaded 20 gauge shot gun, to be fired at the legs of the intruder, when the door, to a vacant house, it was affixed to was opened. Spring-gun went off, striking the π in the leg and causing perment injury. π sued for battery. ii. The value of human life and limb, not only to the individual concerned but also to society, so outweighs the interest of a possessor of land in excluding from it those whom he is not willing to admit thereto that a possessor of land has, as is stated in § 79, no privilege to use force intended or likely to cause death or serious harms against another whom the possessor sees about to enter his premises or meddle with his chattel, unless the intrusion threatens death or serious bodily harm to the occupiers or users of the premises. iii. When the invasion is peaceful and occurs in the presence of the possessor, the use of any force at all will be unreasonable unless a request has been made to depart. iv. A request does not have to be made, however, when the conduct of the intruder would indicate to a reasonable person that it would be useless or that it could not safely be made in time. 5. Recovery of Property a. No privilege exists when the owner of the chattel mistakenly believes that someone has taken their chattel and tries to recover it. b. The privilege only exists when the owner is in fresh pursuit to recover their property. i. Fresh pursuit is limited to prompt discovery of the dispossession, and prompt and persistent efforts to recover the chattel. Any undue lapse of time during which the pursuit has not been commenced, or has come to a halt, will mean that the owner is no longer privileged to fight himself back into possession, but must resort to law. c. The owner must use reasonable force, and can never use deadly force. i. Unless the wrongdoer resists with deadly force, then the use can use deadly force in self-defense. d. The privilege only exists if the property was taken wrongfully from the owner. i. If the wrongdoer obtains possession by fraud, most courts hold that his possession is wrongful from the beginning, and that the owner, if she discovers the fraud promptly, may use reasonable force to recover possession. ii. Hodgeden v. Hubbard 1. π fraudelnty purchased a stove from ∆, and ∆, in fresh pursuit, chased π down, and retook the stove. 2. π drew a knife and ∆ held him down to take the stove. 3. ∆ had right to reclaim stove, and by π drawing a knife he became the agressor and the ∆ had right to use reasonable force to recover the stove and in self defense. iii. Restatement (Second) of Torts § 106: If the wrongdoer resists, the owner may use any force reasonably required to defend his own persons. iv. Restatement (Second) of Torts § 104: A resort to any force at all will not be justified until a demand has been made for a return of the property; but this is not required when it reasonably appears that the demand would be useless or dangerous. v. When a buyer has purchased on an installment plan, the title has remained in the seller, and upon such default he his entitled to possession; and if he can retake the chattel peaceably he may do so without liability. vi. On the other hand, since he has voluntarily surrendered possession in the first place, he has no privilege to recapture it by force [when not in fresh pursuit]; and if the buyer will not give up the chattel, he must resort to his legal remedy. 1. The retaking of possession by a seller under a conditional sale, on default by the buyer, is now controlled by § 9-503 of the Uniform Commercial Code, which provides that “unless otherwise agreed a secured party has on default the right to take possession of the collateral. In taking possession a secured party may proceed without judicial process if this can be done without breach of the peace. 2. Repo-Man: 679.609 of Florida Statutes: allows repossession of financed property with a secured interest in default through judicial system or without use of the judicial system if there is no breach of the peace. e. Bonkowski v. Arlan’s Department Store i. ∆ suspected π for shoplifting and detained π, but π had not shoplifted. Π filed suit against ∆ for false imprisionment. ii. Merchants have privilege to temporarily detain for investigation a person who is reasonably suspected of stealing property. 1. Merchant can detain suspect even when they are around the store’s property, like in the parking lot. a. 812.015 Florida Statutes: allows this same privilege. Allows a shopkeeper to detain for a reasonable manner for a reasonable amount of time a person suspected of shoplifting. 6. Necessity a. Under the ∆ of “necessity,” ∆ has a privilege to harm the property interests of π where this is “necessary” in order to prevent “great harm” to third persons or to ∆ himself. b. Surocco v. Geary i. house was to be blown up in order to stop the fire ii. ∆’s conduct was privileged. iii. At such times of emergency, the individual’ rights of property give way to the higher laws of impending necessity. iv. Necessity provides a privilege for private rights. [Necessitas inducit privilegium quod jura private.] c. Vincent v. Lake Erie Transp. Co. i. ∆’s ship, unable to leave π’s dock because of a violent storm, was slammed into π’s dock, with enough force to do $500 worth of damages to π’s property. ii. If the ∆ causes actual damages to the π, private necessity provides only a limited privlidge, and the ∆ has the right to interfere with the π’s property rights, but he must pay for the damage he causes the π. iii. Here the ∆ had the right to use π’s dock out of necessity, but π has the right to recover any damages created by ∆. 7. Authority of law—if one has the authority to do an action then there is a privilege, and therefore no liability. [Ex. Arrest by a police officer.] 8. Discipline—certain relationships [parent-child relationship] involve the exercise of discipline of one party from another. So long as a reasonable force is used. 9. Justification a. A catch all phrase: used where there are good reasons for exculpating the ∆ for what would otherwise be an intentional tort. b. Sindle v. New York Transit Authority i. Bus driver takes loud and destructive kids to the police station instead of home, and one student sues for false imprisonment. ii. ∆ had a duty to take reasonable measures for the safety and protection of the passengers and the property, and his conduct may have constituted such reasonable measures. Negligence Outline A negligence formula: Elements of the cause of action: 1. A duty to use reasonable care. [This is an obligation recognized by the law, requiring the actor to conform to a certain standard of conduct, for the protection of others against unreasonable risks.] 2. Breach of this duty. [A failure to conform to the required standard. These two elements go to make up what the courts usually have called negligence; but the term is frequently applied to the second alone. Thus it may be said that the ∆ was negligent, but is not liable because he was under no duty to the π to use reasonable care. 3. Causation—a reasonably close causal connection between the conduct and the resulting injury. 4. Damages—actual loss resulting to the interest of another. a. To demonstrate the ∆’s conduct failed to meet the duty of care imposed on him, the π must show that the ∆’s conduct imposed an unreasonable risk of harm. b. Π must show that the ∆’s conduct, viewed as of the time it occurred¸ without the benefit of hindsight, imposed an unreasonable risk of harm. 2. Lubitz v. Wells a. ∆ leaves golf club in back yard and son hit π in the head with it, and π sued ∆ for negligence. b. Inherently dangerous objects: it can be negligence to leave inherently dangerous objects lying around, ex. a gun. c. In this case a golf club was not an inherently dangerous object. d. But, if ∆ knew that his son had a history of violence, then it might be negligent to leave the golf club lying around because it was reasonably foreseeable that the son could use it to hurt someone. 3. Blyth v. Birmingham Waterworks Co. a. During a bad frost the ∆’s water plug in front of π home sprung a leak and water enterd the π’s home and caused damages, π sued for negligence. b. Law of negligence looks to a reasonable expectation, c. Because the frost was not a foreseeable risk, the conduct did not breach the duty owed by the ∆s. 4. Gulf Refining Co. v. Williams a. If a reasonable person would realize that a potential injury, if it came to pass, would be extremely grave, there may be liability even though it was relatively unlikely that the accident would occur. b. ∆ sold a gasoline drum to π with a faulty bung hole, and therefore knew that it could explode, even though it would be highly extraordinary if it were to do so. c. Held, irrelevant that there was a small chance of accident occurring, because in view of the fact that the potential harm in question was so grave, a reasonable person in ∆’s position would have mended the cap, since there was at least some substantial chance of the accident. 5. Chicago, B. & Q.R. Co. v. Krayenbuhl a. In calculating the burden which the ∆ would incur in order to avoid the risk, the courts must take into account the ∆’s burden as well as the societal burden [social utility of the ∆’s acts]. b. Π’s child looses arm in railroad turntable. c. ∆ was negligent in not keeping the turntable locked and guarded. d. The burden of not allowing turntables, even though very dangerous, does not outweigh the social utility of them. e. But the burden of keeping them locked and guarded is so small that the danger of not doing so outweighs this burden. 6. Davison v. Snohomish County a. Π crashed car into railing maintained by ∆, and railing was built for horse drawn buggies. Rail gave way to car, and car went off the road. Π sued ∆ for negligent construction of the rail. b. In this case, to change the guard rails to be able to sustain the impact force of an automobile in a part of the country where automobiles are not the main mode of transportation would have put a burden upon the public which it could not bear. It would prohibit the building of new roads and tend to the financial ruin of the counties undertaking to maintain the old ones. c. Cost of the burden too great to out weight replacing the rails. 7. United States v. Carroll Towing Co. a. ∆ negligently handled π’s barge and it broke free and crashed into another ship, and destroyed all the cargo. Π sued ∆ for negligence. b. The owner’s duty to provide against resulting injuries is a function of three variables: 1. The probability that she will break away. 2. The gravity of the resulting injury if she does. 3. The burden of adequate precautions. 4. Or, whether B is less than PL. o The degree of care demanded of a person by an occasion is the resultant of three factors: 1. The likelihood that his conduct will injure others. 2. Taken with the seriousness of the injury if it happens. 3. And balanced against the interest which he must sacrifice to avoid the risk. o Considerations that courts have employed in various contexts to determine the existence and scope of duty are: 1. The foreseeability of harm to the π. 2. The degree of certainty that the π suffered injury. 3. The closeness of the connection between the ∆’s conduct and the injury suffered. 4. The moral blame attached to the defendant’s conduct. 5. The policy of preventing future harm. 6. The extent of the burden to the ∆. 7. Consequences to the community of imposing a duty to exercise care with resulting liability for the breach. 8. The availability, cost, and prevalence of insurance for the risk involved. The Standard of Care: A. The reasonably prudent person 1. Vaughan v. Menlove a. The ordinary reasonable person is not, however, deemed to have the particular mental characteristics of the ∆. [For instance, the ∆ is not absolved of negligence because he is more stupid, hottemppered careless or of poorer judgment than the ordinary reasonable person. b. ∆ built a hay rick at the edge of his property, and was warned it would catch fire, then it did and burned π’s property. c. The standard formula for instructing the jury has been that of “a reasonable man of ordinary prudence.” 2. Delair v. McAdoo a. ∆’s tire blew out, and he collided with π, π sued ∆ for negligence in the maintenance of his tires, which were worn bare. b. Duty to investigate: a person has a duty to investigate certain acts which a failure to do so could result in an injury to another. c. The are certain facts that are so basic to participate in our society, that we will assume that the person knows the dangers involved. [Ex. Bad tires.] d. If participate in a certain activity, you will be regarded as having knowledge of the dangers and risks to others created by that activity. e. ∆ was under a duty to know of the conditions of the tires and was also under a duty to know that worn tires are dangerous. 3. Trimarco v. Klein a. Custom: the vast majority of courts allow evidence as to custom for the purpose of showing the presence or absence of reasonable care, but such evidence of custom is not conclusive. b. Π is cut by glass in ∆ apartment house’s shower. Π sues for negligence asserting that it is the custom for the showers to be made of plastic or safety glass instead of glass. c. It was proper to allow the π to enter the customs of the trade as evidence, although it is not conclusive of negligence. 4. Cordas v. Peerless Transportation Co. a. Emergency: the ∆ will be held to the standard of a reasonable person confronted with the same emergency. b. ∆, a cab company has an employee held hostage, so employee slams on breaks and jumps out of the cab, the cab rolls down the street and injures π. Π sued ∆ for negligence. c. Cab driver did not behave negligently because he acted as a reasonable person would have done if confronted with the same emergency. d. [But, if the emergency is caused by the ∆’s negligence, it will not absolve them of liability and the ∆’s act that caused the emergency and not the subsequent acts will make the ∆ negligent.] e. [And, the ∆ must still act reasonable under the circumstances of the emergency; if he acts unreasonably he will still be negligent.] 5. Roberts v. State of Louisiana a. Physical Characteristics: a reasonable person under the circumstances has been expanded to include the physical characteristics of the ∆ himself. b. Physical Disability: if ∆ has a physical disability, the standard for negligence is what a reasonable person with that physical disability would have done. c. ∆’s employee, a blind man, made his way from his spot of work to the restroom using his facial sense, which he had done so for three years prior, and not his cane, and bumped into π along the way. Π sued ∆ for liability of blind man’s negligence under respondeat superior. d. Blind man was not negligent because he acted as a ordinary reasonable person who was blind, would have under the same situation. 6. Robinson v. Lindsay a. An exception to the reasonable person standard is children. b. Children must conform to the conduct of a “reasonable person of like age, intelligence, and experience under like circumstances. c. Children playing on snowmobile and one is injured, and sues the other. d. Exception to the child standard of care: When the activity a child engages in is inherently dangerous, as is the operation of powerful mechanized vehicles, the child will be held to an adult standard of care. 7. Breunig v. American Family Ins. Co a. Insanity: Insane persons will be held to a reasonable person standard, unless there insane state prevented them from understanding or avoiding the danger. b. ∆ had an insanity attack while driving her car and crashed into π. c. The policy basis of holding a permanently insane person liable for his tort is: 1. Where one of two innocent persons must suffer a loss it should be borne by the one who occasioned it. 2. To induce those interested in the estate of the person (if he has one) to restrain and control him. 3. The fear an insanity defense would lead to false claims of insanity to avoid liability. d. Since ∆ had notice of possibility of insanity attacks occurring while she was driving, she could be held negligence for failure to stay off the road. The Professional 1. Heath v. Swift Wings, Inc. a. Objective standard for professionals: the standard of care for one who engages in a business, occupation, or profession, is objective, not subjective, thus a ∆’s own training and experience are irrelevant. b. Issue is whether the ∆ matched the standard of care commonly found among other members of the same profession. c. ∆, a professional pilot, crashed shortly after take off, and kills π. d. Standard is whether ∆ matched the standard of care commonly found among other members of the same profession, not based on the ∆ skills and training. e. Standard is not modified for professionals giving their work pro bono. 2. Hodges v. Carter a. The ∆ is charged with using a higher level of care when the ∆ has a higher degree of knowledge (malpractice) b. Professionals must act with the level of skill and learning commonly possessed by members of the profession in good standing. c. Good results not guaranteed: the professional will not normally be held to guarantee that a successful result will occur. d. ∆’s lawyers mistakenly used the wrong service of process procedure, and ∆ was later barred from the proper service by statute of frauds. ∆ sued her lawyers for malpractice. e. ∆ were not negligent for “mere error of judgment” so long as they practiced in good faith and conformed to the standard of practice of the profession. f. In attorney negligence cases the plaintiff-client must show that but for the attorney’s negligence the client would have been successful in prosecuting or defending the claim. 3. 766.102 Medical negligence; standards of recovery; expert witness. a. 766.103 Florida Medical Consent Law. b. 766.104 Pleading in medical negligence cases; claim for punitive damages; authorization for release of records for investigation. c. Duty of care in malpractice and duty of care for informed consent, set by legislature last malpractice crisis: 766. i. 102: held to the standard the physician held themselves out to be. ii. 103: (3) no recovery allow in Fl. Unless (a)(1), which establishes the physician standard of care by looking to the standards of the profession. [Not would this patient have gone ahead with the procedure, but would a reasonable patient have gone ahead with the procedure.] iii. Fl. has adopted this policy mainly because of the political process. iv. Written consent forms must contain what risks are associated with any invasive medical procedure. 4. Boyce v. Brown a. Expert testimony: Almost always the ∆ professional’s negligence may be shown only through expert testimony. i. In medical malpractice, the π must produce another doctor to testify to the ∆’s negligence. And this testimony must normally establish both the standard course of conduct in the profession, and that the ∆ departed from it. b. Difficult burden: Expert must testify both all the standard courses of conduct in the profession and that the ∆’s conduct departed from the all courses of conduct in the profession. c. ∆ fixed π’s ankle with screw and never took another x-ray when π complained of pain in the ankle. Years later π went to another doctor who removed the screw. Π sued ∆ for negligence. d. Π’s expert witness stated that he would have done it differently but didn’t state that ∆’s conduct was a failure of proper medical care. e. ∆ won because π’s expert witness failed to show the ∆ did not conform to any of the courses of conduct in the profession. 5. Morris v. MacNamara a. Standards of the community: professional used to be held to the standards of their local communities, but today, since education has become more uniform nationally, there is generally one standard of care for all the professionals in the field. b. Trial court applied the community standard of care, and barred the π’s expert witness, who was from outside the ∆’s community. ∆ was a medical lab who administered a urinary test to π while π was standing, and π fell and struck his head. c. Appeals court applied national standard of care and allowed the π’s expert witness’s testimony as to the national standard of care. 6. Scott v. Bradford a. Informed consent: the risks of a proposed treatment must be disclosed to the patient before he consents to that treatment. There must be adequate disclosure of the risks. b. General principle: the doctor must disclose to the patient all risks inherent in the proposed treatment which are sufficiently material that a reasonable patient would take them into account in deciding whether to undergo the treatment, provided that the patient’s wellbeein would not be unduly disturbed by such disclosure. c. And disclosure is itself a question of the professional standard, which can be established by expert testimony. d. Causality: Π was not aware of the risks involved with the operation performed by the ∆, and suffered damages from the risks. i. Π sued ∆ and the court held that the π must show that she would have probably declined the treatment had full disclosure been made. [if π would have done it anyway, then lack of informed consent cannot be the proximate cause of the injury.] ii. Court applied whether this individual patient would have declined the treatment. [Jury doesn’t have to believe π...can find π not crediable]. iii. Other courts apply whether a “reasonable patient” would have declined the treatment. e. If the treatment is completely unauthorized and performed without any consent at all, there has been a battery. f. In a medical malpractice action a patient suing under the theory of informed consent must allege and prove: i. ∆ Physician failed to inform him adequately of a material risk before securing his consent to the proposed treatment. ii. If he had been informed of the risks he would not have consented to the treatment. iii. The adverse consequences that were not made known did in fact occur and he was injured as a result of submitting to the treatment. g. If full disclosure would be detrimental to the patients care, or the patient is unable to be informed, (unconscious). Then there can be privilege not to inform. 7. Moore v. The Regents of the University of California a. Disclosure of doctor’s research intents: some courts have required disclosure of any research or financial interest that the doctor may have in the proposed procedure. b. ∆ removed π’s spleen, which benefited π, then established a cell line from the cells of π’s spleen and benefited from it. Π sued ∆. c. If the ∆ knew of the intent to use the cells at the time of the operation then ∆ had a duty to inform π of his research intents, but if ∆ did not have the intent to use the cells at the time of the surgery then there was no duty to inform of research intentions. 8. In legal mal. Have to prove negligence on the part of lawyer to show cause of damages and then prove the underlying case which should have been won, but for the negligence of the attorney. a. Generally statutes of limitations are shorter for malpractice negligence (2 yrs.) than regular negligence cases (4 yrs.). b. Difference between mal.prac. or regular neg.: i. Slip and fall in the hospital hallway. [Non-patient] Regular. ii. Slip and fall while getting out of hospital bed to use R.R. 1. Depends on the circumstances of the event. 9. The standard of care, the care of a reasonable prudent person under the circumstances, an objective standard which applies to all, so both parties can judge whether their conduct would result in liability or injury. Automobile Guest Statutes: 1. Gross negligence, willful or wanton disregard, or recklessness: refer to a more serious departure from the standards of ordinary care that would be required to constitute ordinary negligence, because the risk of harm is substantially greater than the risk of whose disregard constitutes ordinary negligence. 2. Automobile Guest Statutes: precluded a non-paying passenger in an automobile from filing suit if injured, against the driver owner, unless the driver was grossly negligent or reckless. a. Present: repealed in all but eight states. b. Intoxication is considered gross negligence, and the statute is inapplicable in those states that still follow it. Rules of Law 1. Judges often try to lay down standards once and for all to regulate certain behaviors, but these standards are often proven to be too inflexible. 2. Pokora v. Wabash Ry. Co. a. Court tried to apply a once and for all standard of behavior: π, arrives at a railroad crossing, and because of ∆’s rail car, has his view obstructed. Π looks as best he can, but doesn’t get out of the truck to look, and then is struck by a train as he crosses the tracks. b. The rule requiring the π to get out of the truck and look to see if there is a train comming, does not prove π’s negligence, because it was possibly more dangerous for π to stop the truck and get out to look. c. Up to the jury to decide whether π was negligent by not getting out to look. d. Once and for all rules about getting out to look at rail road crossings overruled. 3. Cardozo, general rule is to use reasonable care under the circumstances. 4. Today, courts have abandoned almost any attempt to establish definite and precise standards of conduct which individuals must meet. Violation of the Statute 1. Negligence per se: when a safety statute has sufficiently close application to the facts of the case at hand, an unexcused violation of that statute is “negligence per se,” and the ∆ will not be permitted to show that the legislature set an unduly high standard of care. 2. Osborne v. McMasters a. ∆’s clerk sells a bottle of poison without a label (poison label required by statute) to π, π ingests it and dies. b. Where a statute or municipal ordinance imposes upon any person a specific duty for the protection or benefit of others, if he neglects to perform that duty he is liable to those for whose protection or benefit it was imposed for any injuries of the character which the statute or ordinance was designed to prevent, and which were proximately produced by such neglect. 3. Stachniewicz v. Mar—Cam Corp. a. Class of persons protected: the π must be in a member of the class of persons whom the statute was designed to protect. b. Π must prove 1. that they were in the class intend to have protection by the statute, and 2. that the statute was intended to protect against the particular kind of harm that the π has suffered. c. Two classes of persons protected: a statute may be held to have been intended to protect both the public at large as well as a particular class of individuals. d. Π, sitting in the bar of ∆, is injured when a barroom brawl breaks out. i. There is a statute providing that no bar operator “shall allow…[they type of conduct of a fight in the bar]. ii. The statute was to protect the public at large, as well as, the people in the bar. iii. Therefore, π was within the class of persons intended to be protected by the statute, and the violation by ∆, the bar owner, constituted negligence per se. e. A violation of a statute or regulation constitutes negligence as a matter of law when the violation results in injury to a member of the class of persons intended to be protected by the legislation and when the harm is of the kind which the statute or regulation was enacted to prevent. f. Violation of administrative rule does not constitute negligence per se, but may be admissible as evidence of negligence. g. Statutes are designed to protect against particular risks, and if the damages arise from a risk not protected by the statute, it is not appropriate to base negligence on the violation of the statute. h. The judge will decide whether the π falls within the class of people that are protected by the statute.—question of law. i. Judge has to decide whether the violation of the statute is negligence per se. 4. Ney v. Yellow Cab Co a. Protection against a particular harm: π must show that the statute was designed to protect against the particular kind of harm suffered by π. b. No-keys-in-car: If the purpose of the statute was to guard against theft [and reckless driving by thieves], negligence per se has been found. c. No-keys-in-car: If the purposed of the statute is intended to guard against some non-theft type of harm [mere negligence of a passerby], a theft and a consequent accident have not been found to trigger negligence per se. d. ∆ left the keys in his car, which was running, on a Chicago street, and a thief stole the car while it was on the street, and crashed it into π. π sued ∆ for negligence, based argument on violation of the statute. e. Court must determine: i. What was the legislative intention? ii. Is the violation of the statute the proximate cause of the injury? iii. Is the act of the thief an intervening, independent, efficient force which breaks the causal connection between the original wrong and the injury? f. If the theft was reasonably foreseeable as a result of the negligent act of leaving the keys in the car, then there is a proximate cause, because the statute was intended to prevent thieves from stealing cars. 5. Perry v. S.N. and S.N. a. Imposition of a new duty not existent at common law: statute imposes a duty to act, where the standard common law is no duty to act. b. State statute that required any person having cause to believe a child is being abused to report the abuse to authorities, and makes the knowing failure to do so a misdemeanor. c. ∆’s not liable, even though in violation of the statute, because the statute goes against the common law, and if there was liability, it would have major policy concerns, because too many people would be liable for a tort. d. Generally, if the π is not permitted to use the statute to prove the standard of conduct, the π’s case defaults to the reasonable person standard and may still succeed if the π can prove that the ∆ failed to act as the reasonable person would act. e. And violation of the statute can still be used as evidence of breach of duty of a ordinary reasonable person. 6. Martin v. Herzog a. Π’s buggy was hit at night, but it did not have any lights on, which is in violation of statute. b. Π sued ∆, and ∆ won because π’s actions were negligent, and a cause of the accident, so π was contributory negligent, and ∆ wins. c. Even where the statute is applicable to the facts of the case, the “negligence per se” does not make the ∆ liable unless the π shows that there is a causal link between the act constituting a violation and the resulting injury. d. [Minority of states hold that a statutory violation is never more than evidence of negligence, which a jury may find is outweighed by other evidence of due care. 7. Zeni v. Anderson a. A violation may be excused if compliance would have involved a greater risk of harm to the actor or third persons than the path of noncompliance chosen by the ∆. b. Π excused from contributory negligence for violation of a sidewalk statute, when the sidewalk was more dangerous than the snow path the π chose. c. Π was struck by ∆ while on the snow path. 8. Rebuttal-able presumption: [negligence per se] Doctrine of Excuse. a. Inference: jury may find from evidence. [See skin marks behind car, skidder caused accident.] b. Presumption: jury must find from the evidence. [Skid marks, care stopped short.] i. All presumptions must be rebuttalbe, which means the accused party must have opportunity to come forward and disprove the presumption. ii. Acts to shift the burden of proof to the ∆ to prove that ∆ was not negligent, and ∆ acted as a reasonable person under the circumstances. 9. Florida Supreme Court: a. 1. Strict liability: broad class of statutes that constitute negligence per se. [fireworks to minor.] b. 2. Negligence per se. c. 3. Some statutes are only evidence of negligence. [Ex. Traffic violations.] 10. Can ∆ argue no negligence because no violation of any statute? a. No, there can be clear actions within the bounds of statute that are unreasonable. b. Evidence that ∆’s acts were in compliance with the statute usually will not be heard by the jury, because judge will not allow it. c. There are a few cases where this is not the rule. [Dangerous airbags required by Federal Government, and car manufactures sued for negligence by consumers, from injuries from airbag.] Proof of Negligence Court and Jury: Circumstantial Evidence Circumstantial Evidence: 1. Evidence based on inference and not on personal knowledge or observation. 2. All evidence that is not given by testimony. Banana Peel Cases: 1. Goddard v. Boston & Maine R.R. Co a. Nothing for the jury to infer the peel had been there fore a while, no circumstantial evidence, therefore cannot prove breach of duty by ∆. 2. If owner has notice of safety hazard, they have duty to clean it up. 3. If owner has no notice of safety hazard, they have duty to keep the premise reasonable safe. a. Owner has duty to reasonable inspect the premise for safety hazards. b. If they are on notice or have a duty of a reasonable person to be on notice, they have a duty to reasonable clean it up. c. Length of hazard being there is significant, and the allowable length of time if no notice will vary from case to case, circumstance to circumstance, and location to location. 4. Cannot infer from accident that there was negligence, need some evidence to prove or show negligence. 5. Anjou v. Boston Elevated Railway Co. a. Testimony that the peel was black and gritty, therefore the jury could infer the peel was there for a substantial period of time, and that ∆ had breached its duty. 6. Joye v. Great Atlantic and Pacific Tea Co. a. Testimony that the peel was only seen after, and not before, the π slipped on it, so the jury could infer that it had only been there for a few seconds, not long enough to put ∆ on notice. 7. Jasko v. F.W. Woolworth Co. a. Because of the dangerous condition in which ∆ served its pizza (on wax paper with the customers standing) ∆ could be liable to π for slipping on a slice on the floor, because ∆ was on notice since he served pizza in a potentially dangerous manner. Res Ipsa Loquitur 1. Byrne v. Boadle a. Res Ispa Loquitur: [Latin “the thing speaks for itself”] i. The doctrine providing that, in some circumstances, the mere fact of an accident’s occurrence raises an inference of negligence so as to establish a prima facie case. b. Barrel of flour stuck π while walking past ∆’s flour store. c. In some cases, where accident occurs, the mere fact of the accident is enough to show negligence, unless ∆ can show facts inconsistent with negligence. d. There shall be no burden of proof by π of negligence for cases of res ipsa loquitur because the act or accident itself is negligent. 2. McDougald v. Perry a. Four requirements: i. No direct evidence of ∆’s conduct: First, there must be no direct evidence of how ∆ behaved in connection with the event. ii. Seldom occurs without negligence: Second, the π must demonstrate that the event is of a kind which ordinarily does not occur except through the negligence of someone. iii. In ∆’s control: Third, π must show that the instrument which caused her injury was, at the relevant time, in the exclusive control of the ∆. iv. Rule out the π’s contribution: Fourth, π must show that her injury was not due to her own action. b. If the details of ∆’s actions are known then no need to use doctrine of res ipsa. c. Inference of someone’s negligence: π not required to prove that such events never occur except through someone’s negligence; all π has to show is that most of the time, negligence is the cause of such occurrence. d. Spare tire, of ∆, broke loose and struck π’s car. Π sued on res ipsa. Verdict for π because the jury could infer from the type of accident that such accident would not usually occur had ∆ not been negligent is securing the tire. e. If common human experience does teach us about the inference to be made, then no expert testimony. f. If common human experience does not teach us about the inference to be made, then need expert testimony. 3. Larson v. St. Francis Hotel a. Showing that negligence was ∆’s: the π must show by a perponderance of the evidence that the negligence was propbably that if the ∆. i. Traditional Rule: was to show the instrumentality which cause harm was in the exclusive control of the ∆. ii. Modern Rule: require π to show that, more likley than not, the negligence was the ∆’s, and not someone else’s. 1. π must produce evidence negating other possiblities, however the evidence need not be conclusive, only need to show greater possiblity. b. During party, π walking on the sidewalk outside ∆’s hotel is struck by a falling chair. Π sues under res ipsa and loses because the chair was not in the exclusive control of the hotel, it was in the control of a drunk partier. 4. Ybarra v. Spangard a. Multiple ∆s: can sometimes use res ipsa against multiple ∆s. Then the burden shifts to the ∆s, to prove they were not negligent. b. π went in for surgery, was unconcious for the operation, and awoke with damages. Π sued all the medical staff that was present for the operation under the doctrine of res ipsa, because the π had no way of knowing the actions of ∆s. c. Jury found against all ∆s, even though some of them testified that they were not negligent to π. d. Courts allowed res ipsa for the multiple ∆s because of the special relationship they bore with the π. But if the ∆s were complete strangers, the courts generally do not allow the doctrine of res ispa to apply. e. There is general agreement that when π’s car collides with the ∆’s, neither driver has a res ipsa loquitur case against the other. f. When the collision injures a third person, such as a bystander on the sidewalk, most of the decisions have held that he does not have a res ipsa case. g. When one of the vehicles is operated by a common carrier, and the injury is to its passenger, some courts apply res ipsa loquitur against the carrier alone. 5. Sullivan v Crabtree a. Res ipsa is merely a doctrine that sanctifies the use of a particular kind of circumstantial evidence. The consequence of the doctrine’s application is that the π has met her burden. b. Jury can used the prima facia case of res ipsa as a weight of evidence, but it is still up to the jury to decide whether the ∆ was negligent or not, and just because the π has a prima facia case of res ipsa does not guarentee a verdict. c. Π is a passenger in ∆’s truck, which crashed and kills π. Π’s estate sues ∆ on res ipsa, and the jury finds for ∆. Court said that even though there is res ipsa, the jury could find for π, but is not required to do so. Causation in fact [Actual and proximate cause] Sine Qua Non Once the π has shown that the ∆ behaved negligently, he must then show that this behavior “caused” the injury complained of. Actually, P must make to quite distinct showing. Actually π must make to distinct showings or causation: o Cause in fact: π must 1st show that ∆’s conduct was the “cause in fact” of the injury. This means that π must show that “but for” ∆’s negligent act, the injury would not have occurred. o Proximate cause: π must also show that the injury is sufficiently closely related to ∆’s conduct that liability should attach. 1. Perkins v. Texas and New Orleans Ry. Co. a. “But for” test: the ∆’s conduct is the (or a) cause of the π’s injuries if it can be said that, “Had the ∆ not so conducted herself, the π’s injuries would not have resulted. b. Π is injured when his car collides with speeding train, and even though ∆ behaved negligent by speeding, the train would not have been able to stop in time no matter what the speed was, so ∆ not found negligent because the excess speed was not a substantial factor in causing the accident. c. Here if we said but for the excessive speed, there is the possibility that the accident would have occurred anyways, and since the excess speed is the only negligent behavior, and it was not a cause of the accident, then ∆ not negligent for π’s injuries. d. Negligence is a cause in fact of the harm to another if it was a substantial factor in bringing about that harm. Proof of Cause 1. Gentry v. Hereford Ranch, Inc. a. Need to provide some evidence of causation, and a mere suspicion that the ∆’s negligence caused the π’s injuries will not suffice. b. Π is killed when ∆1 tripped or fell, while going up the stairs of ∆2’s ranch, and dropped a gun which shot π. Π’s estate sued ∆s and the only evidence of ∆2’s negligent maintenance of the stair, was ∆1’s testimony stating that he could not recall why he tripped. c. Court held that there has to be some proof of a causal relationship between the ∆’s negligent behavior and π’s injuries, therefore, ∆2 wins, because π offered no such evidence, and mere suspicion of negligence will not do. 2. Reynolds v. Texas & Pac. Ry. Co. a. Π must prove actual causation by a preponderance of the evidence. i. All π has to do is show that it is probable that the injury would not have occurred with the ∆’s act. ii. A mere possibility raised by the ∆ will not be enough to break the causal chain. b. π fell down ∆’s unlit stairway at night. Π argues that the failure to light the staircase was the actual cause of her injuries, and ∆ contends that the π may have fallen during the day, so the darkenss does not matter. c. Π had established enough for actual cause, “Where the negligence of the ∆ greatly multiplies the chances of accident to the π, and is of the character naturally leading to its occurance, the mere possiblity that it might have happened without the negligence is not sufficent to break the chain of cause and effect between the negilgence and the injury. 3. Kramer Service, Inc. v. Wilkins a. Expert testimony: sometimes expert testimony may be necessary to prove actual causation by the ∆. This is frequently true in medical malpractice cases. b. π is cut in the head by ∆’s negligence, then two years later π develops cancer at the point of injury. Π offers expert opinions that there is a remote possibility that the cancer was caused by the injury to π’s head. c. Court found for ∆, stating that mere possibility of an actual causal relationship is not enough to fulfill the π’s burden of preponderance of the evidence. 4. Wilder v. Eberhart a. Rebuttal by the ∆: the ∆ may rebut the π’s proof of “but for” causation by showing that some event other than the ∆’s negligence might have caused the event. b. Medical malpractice case: π’s expert testified that the probable cause of the damage to π was ∆’s negligent act during surgery, and ∆ was permitted to rebut this by putting on medical testimony that there were other “possible” cause of the injury, even though none of these was more likely than not the cause of the injury. c. ∆ need not prove another cause, he only has to convince the trier of fact that the alleged negligence was not the legal cause of the injury. 5. Motion in Limine: a. A pretrial request that certain inadmissible evidence not be referred to or offered at trial. b. Typically, a party makes this motion when it believes that mere mention of the evidence during trial would be highly prejudicial and could not be remedied by an instruction to disregard. 6. Herkovits v. Health Cooperative of Puget Sound a. Increased risk followed by actual damages: b. ∆ failed to diagnose π with cancer, decreasing his chance of survival of 14% and then π dies. i. Court held that once the π has demonstrated that the ∆’s acts or omissions have increased the risk of harm to another, such evidence furnishes a basis for the jury to make a determination as to whether such increased risk was in turn a substantial factor in bringing about the resultant harm. c. Dissent: i. Should not stray from the traditional proximate cause standard Concurrent Causes: 1. Hill v. Edmonds a. Multiple negligence: a ∆ may not claim that she is not an actual cause of the π’s injury merely because some other person’s negligence also contributed to that harm. b. Π a passenger in ∆1’s car, is injured when the car crashes into an unlit truck in the middle of the road owned by ∆2. Evidence that ∆1 was negligent for not seeing the truck and ∆2 was negligent for leaving the truck in the middle of the road unlit. c. ∆2 should not be dismissed by claiming that but for ∆1’s negligence the accident would not have occurred. d. Where separate acts of negligence combine to produce directly a single injury each tortfeasor is responsible for the entire result, even though his act alone might not have caused it. 2. Anderson v. Minneapolis, St. P. & S. St. M. R.R. Co. a. Concurrent causes: Where two events occur to cause harm, and either one would have been sufficient to cause substantially the same harm without the other. Each of these concurrent events is a cause of the injury, insofar, as it would have been sufficient to bring that injury about. b. ∆ causes a fire, which merges with another fire of unknown origin, and the fire burns π’s home. c. Even though π’s property would have been burned had ∆ not started his fire, that fire must still be regarded as a “material and substantial element” in π’s damages, and therefore ∆ is liable for the entire damage. d. The “substantial factor” test would retain “but for” causation as an essential precondition except in situations, such as the participle case, in which two or more actively operating forces, for only one of which the ∆ was responsible, combine to bring about the harm, while each alone would have been sufficient to bring about the harm. Problems with determining which party caused the harm 1. Summers v. Tice a. Double fault and alternative liability: the burden shifts where the π can show that each of two persons was negligent, but that only one could have caused the injury. In this situation, it is up to each ∆ to show that the other caused the harm, and if they cannot they will be held jointly liable. b. Π was injured when ∆1 and ∆2 shot their shotguns in the direction of π. Both ∆s were negligent but π could not determine which one caused the injuries. c. Burden shifts to the ∆s to prove the other was responsible for the damages. [Analogized with Ybarra v. Spangard] 2. Sindell v. Abbott Laboratories a. Enterprise or “Market share” liability: the double fault and alternative liability theory has occasionally been applied to situations involving three or more parties. i. Usually in product liability cases, where the π was injured by her long-ago usuage of a product which she can only identify by type, and not brand name. ii. If a given member of the class of ∆s is unable to prove that they did not cause the injury, the court may require them to pay that percentage of the π’s injuries which the ∆’s sales of the product bore to the total market sales of that type of product. iii. If π can join the companies who represented “substantial share” of the of the market place, an shows that there was negligence and a causal relationship between the product and the harm, the burden will shift to the ∆s to prove that they did not cause the harm to the π. iv. Question of what makes a “substantial share” or what is the “relative market” is left up to the lower courts. v. Π sues 5 companies representing 90% of the market share of a drug that injured her mother and caused cancer in π. Π did not have to include all 200 of the companies that made the drug, because it was partially ∆s fault for the lack of evidence because the effects of the drugs only occurred after a substantial period of time, and if ∆s could not prove that they did not cause the harm [i.e. mother did not take their drug] they could be held liable for the π’s damages based on their share of the over drug market. Proximate Cause Definition of Proximate Cause Two types of proximate cause: direction causation rule and foreseeable consequences rule. [Foreseeable consequences is the more readily applied today] Need cause in fact, and one of the above to prove causal element of negligence. 1. Atlantic Coast Line R. Co. v. Daniels a. Cause in fact and proximate cause are not interchangeable terms. b. Cause in fact refers to the cause and effect relationship between the ∆’s tortious conduct and the π’s injury or loss. c. Proximate cause, or legal cause, concerns a determination of whether legal liability should be imposed where cause in fact has been established. Unforeseeable consequences 1. Ryan v. New York Central R.R. Co. a. The direct causation rule is often attacked on the ground that is may result in limitless liability. b. ∆ train starts a fire, which destroys its shed and then spreads to π’s home. ∆ wins because destruction of the π’s home was too remote to be foreseen as a consequence, and to “sustain such a claim…would subject ∆ to a liability against which no prudence could guard. c. Policy concerns for the railroad weighed heavily in this case. 2. Bartolone v. Jeckovich a. Extensive Results from physical injuries: once the π suffers any foreseeable impact or injury, even if relativley minor, it is universally agreed, even by courts following the foreseeability rule, that the ∆ is liable for any additional unforeseen physical consequences. [So long as they do not arise from superseding causes]. b. Egg-shell skull rule: the ∆ takes the π as he finds them, and the damages do not have to be forseeable. c. Π is injured in a car accident by ∆, and suffers injures so he cannot workout, and because he cannot workout he becomes psychotic to the point that he is completely disabled. d. ∆ was liable for the minor injuries of the accident as well as any damages that stemmed from the accident [so long as no superceding cause] therefore, ∆ is liable for the π’s complete disability because it aggravated a preexisting condition. e. The tortfeasor’s duty of care is measured by the ordinary person, but the π’s injuries may not be. 3. In re Arbitration Between Polemis and Furness, Withy & Co., Ltd. a. Direct causation: b. Π’s charted their ship to ∆. While ∆ were unloading the cargo, a plank fell which caused a spark, which ignited the fumes and destroyed the ship. c. ∆ had acted negligently in dropping the plank, and no one could reasonably forsee the plank would cause the ship to be destroyed. Nonetheless, because the fire was the “direct” result of the negligent act, the ∆’s were held liable. d. Don’t need foreseeable damages, need foreseeable harm. e. Overruled by Wagon Mound No. 1 4. Wagon Mound No.1 a. Foreseeability view: seeks to apply the same factors to limit the scope of liability as are used to determine whether the conduct is negligent in the first place. i. ∆ is only liable for those consequences of his negligence which were reasonably foreseeable at the time he acted. ii. ∆’s ship spilled oil into the harbor, which was set afire by one of π’s employees and π’s whole harbor burned. iii. Not reasonably foreseeable to the ∆s that the oil could be set afire on the water, and the damages were therefore unforeseeable, and ∆ is not liable. iv. Rejected the direct causation rule. 5. Wagon Mound No. 2 a. Foreseeable but highly unlikely: As long as the actual harm to the π was remotely foreseeable, there is liability even though these consequences were highly unlikely. b. Same facts was No. 1, but the owner of the two ships in the harbor brought suit and claimed the it should have been foreseeable to the ∆ that discharge of oil posed some small risk of fire. c. ∆ cannot ignore the risk no matter how small, and the ∆ should have weighed the risk against the difficulty of eliminating that risk, and avoiding the spillage would have been so unburdensome that it should have been done. 6. Palsgraf v. Long Island R.R. Co. a. Unforeseeable π: b. Π is injured when a scale falls on her, and the scale falls because of the negligent acts of ∆, towards another person, getting on a train who drops fireworks. c. Majority: Cardozo: ∆ not liable because π was not forseeable. [not within the zone of danger.] i. Stated it in form of duty to the π, which has the adaventage of not making the question sound like one of factual causation when it is really one of policy. ii. Negligence in the air, so to speak, will not do. d. Minority: Andrews: ∆ should be liable because the direct cause of the damages to π, and every person bears the burden to protect society from unnecessary danger, not just A, B, or C. i. Recognizes there must be limiting factors, but foreseeability should not be one of them. e. Cardozo’s opinion is more followed, but Andrew’s may be more convincing. 7. Yun v. Ford Motor Co. a. Restatement “extraordinary in hindsight” rule: the ∆’s conduct will not be the “proximate cause” [legal cause] of the π’s harm where “after the event and looking back from the harm to the ∆’s negligent conduct, it appears to the court highly extraordinary that it should have brought about the harm.” b. Π owns a van with a spare tire bracket that was loosened in an accident. ∆1 services the van and informs π that the bracket is broken. Π does not have it fixed. The spare tire comes loose and lands across the highway and π is killed while trying to retreve it in the middle of the night. c. The foreseeability of the π running across the highway to remote, or it was highly extraordinary. Dissent says it was reasonable foreseeable that the π would be injured in retrieveing the tire if it were to fall out and should be decided by the jury, and the Supreme Court agreed with the dissent. Intervening Causes o An intervening cause is a force which takes effect after the defendant’s negligence, and which contributes to that negligence in producing the π’s injury. o Superseding cause: some, but not all, intervening causes are sufficient to prevent ∆’s negligence from being held as the proximate cause of the injury. They supersede, or cancel the ∆’s liability. 1. Derdiarian v. Felix Contracting Corp. a. Foreseeable negligence: the negligence of third persons may be an intervening force that is sufficiently foreseeable that it will not relieve the ∆ of liability. And it will amount to negligence on the part of the ∆ not to anticipate, and guard against the negligence of others. b. ∆ failed to properly guard road construction site from cars slamming into workers. Car slammed and molten metal burden π worker. ∆ held liable because it failed to protect workers from the foreseeable negligence of drivers, and the negligent act of the driver, while and intervening cause, was not a superseding cause, and therefore did not absolve the ∆ from liability. c. One standard type of intervening force is called an “act of God,” “vis major,” or “force of nature.” i. Penn. Court: One who fails in his duty to remedy a defective or dangerous condition is liable for injuries resulting therefrom, although the immediate cause of the injury is a force of nature [such as the wind]. ii. The casual connection is not broken, and the original wrongdoer is liable for the injury sustained. 2. Watson v. Kentucky & Indiana Bridge & R.R. Co. a. Criminally or intentionally tortious conduct: a third person’s criminal conduct may be sufficiently foreseeable that, even though it is clearly an intervening act, it will not be a superseding one. However, it is very hard to prove that the ∆ could foresee the intentionally criminal or tortious acts of a third party. b. However, an intentional or criminal act is usually sufficient to break the chain of causation. c. ∆ negligently spill gasoline in the street and a third party lit a match and all the gas exploded in a fire. Court said that if the third party was merely negligent in lighting the match, that would not be a superseding cause because the negligent acts of another could be foreseen. But if the third party intentionally lit the match and threw it into the gas, then that would be a superseding cause because the ∆ could not have foreseen the intentional acts of another, and could not be expected to guard against it. 3. Fuller v. Preis a. Suicide: If the π was sane at the time he committed suicide, the courts unanimously hold the suicide was a superseding cause, and the ∆ has no liability to it. i. Insanity: If the injury drives the π insane, and the suicide is the product of this insanity, recovery is usually allowed. The requisite insanity has generally be found only where the suicide is shown to be the product of an irresistible impulse on the part of the π. b. π suffers damages in an car accident caused by ∆, and damages result in him going crazy. Seven months after accident he commits suicide, and leaves notes. Π’s suicide must have been an irresistible impulse stemming from his injuries. Even if π thought he was sane, he might not have been and the case was remanded. 4. McCoy v. American Suzuki Motor Corp. a. Rescuer need to show proximate cause: The rescuer must show that their injuries are reasonably closely tied to the rescue, and that one in the ∆’s position could reasonably have foreseen not only that there might be a rescuer, but that harm might come to the rescuer in roughly the manner that did in fact occur. b. Left up to the jury: where some attempt at rescue was reasonably foreseeable, courts generally leave it to the jury to determine whether the precise mechanism by which the rescuer was injured was also foreseeable. c. π, a rescuer, was struck from behind by ∆1 after helping with a rescue. Π sued ∆2, the car manufacturer, claiming that ∆2 product was defective and that ∆2 could have foreseen a rescuer being injured in helping someone injured as a result of the defective product. ∆2 claim that the rescue doctrine should not be applied to products liability cases. Court said the doctrine could be applied to product liability cases, and that it was up to the jury to determine whether injury to the π was foreseeable. 5. The Rescue Doctrine: a. The doctrine allows an injured rescuer to sue the party which caused the danger requiring the rescue in the first place. i. The heart of the doctrine is the notice that “danger invites rescue”. Cardozo. b. This doctrine serves two functions : i. First, it informs a tort-feasor it is foreseeable a rescuer will come to the aid of the person imperiled by the tort-feasor’s actions, and, therefore, the tort-feasor owes the rescuer a duty similar to the duty he owes the person he imperils. ii. Second, the rescue doctrine negates the presumption that the rescuer assumed the risk of injury when he knowingly undertook the dangerous rescue, so long as he does not act rashly or recklessly. c. To achieve rescuer status one must demonstrate: i. The ∆ was negligent to the person rescued and such negligence caused the peril or appearance of peril to the person rescued; ii. The peril or appearance of peril was imminent; iii. A reasonably prudent person would have concluded such peril or appearance of peril existed; iv. The rescuer acted with reasonable care in effectuating the rescue. d. Some states do not permit recovery by professionals, at least against the property owner, under the so-called “firefighter’s rule,” which is premised on the theory that those professionals already have been compensated for their potential liability. [Police officers, firefighters, lifeguards, paramedics, etc.] i. The rule operates to preclude recovery only if the risk created was the type of risk reasonably anticipated by the job. e. The ∆ who caused the danger will be liable to someone who is injured trying to escape from it. Duty of Care o Π cannot recover unless ∆ owned π a duty of care. Failure to Act: 1. At common law there is no duty to act. a. Misfeasance: an affirmative act which harms or endangers the π. b. Nonfeasance: a mere passive failure to take action. c. Duty to protect or give aid: Unless there is some special relationship between ∆ and π, the ∆ is not liable for her refusal to help. 2. Hegel v. Langsam a. University-student relationship: Courts, in some situations have recognized a special relationship between a University and a student, imposing upon a University a duty of special care. [University has duty to protect students from criminal attacks on the campus of the university in broad daylight.] b. Private affairs: Courts have been less willing to hold that the university has an obligation to regulate the private affairs of its students so as to prevent them from harm. c. Π went to ∆ university where π became sinful, and ∆ did not return her at her parents request, court said that ∆ had no duty to regulate the private affairs of π, therefore there was no liablity on there part for π becoming sinful. 3. Volunteer Protection Act of 1997 a. [To eliminate the number of tort claims and reduce damages by immunizing volunteers from personal liability for torts they commit in the scope of their services.] b. The Act limits the personal tort liability of volunteers as long as they are: i. Acting in the scope of their responsibilities for a nonprofit or government entity at the time of the act or omission, ii. Properly licensed, certified or authorized to perform the activity causing harm by the State where the injury occurred, iii. Not acting with intent to commit harm or criminal negligence, and iv. Not driving a vehicle that the State requires a license or insurance to operate. c. The Act absolves volunteers from punitive damages unless they commit harm in a manner that would constitute criminal conduct. d. The Act also limits a volunteer’s liability for non-economic loss to that which is proportional to the volunteer’s responsibility of the harm. e. As a final caveat, the Act contains a preemption and election section that allows states: i. To pass laws that extend further protections to volunteers, or ii. Opt out of the Act through legislation that mentions the Act by name. 4. L.S. Ayres & Co. v. Hicks a. Business relationships: (business generally) anyone who maintains business premises must furnish warning and assistance to a business visitor, regardless of the source of danger or harm. b. Π, without negligence from ∆, gets his fingers stuck in ∆’s escalator, and ∆ delayed stopping the escalator further aggravating π’s injuries. ∆ had a duty to come to the aid of an invitee who is using an instrumentality provided by, and under the control of, the operator. But since ∆’s negligence did not cause the injury they are only liable for the aggravation to the injury caused by ∆’s negligence. c. There is no duty to rescue but, having effected it, the “rescuer” is “not entitled to harm the person whom he has rescued.” d. A promise by itself does not create a tort duty, even if there is reliance on the promise. i. There must be an undertaking, and then a duty may arise. ii. The duty, generally, will arise only when you harm the party, so undertakings won’t be discouraged by liability. e. “Hit and run” statutes, requiring an automobile driver involved in an accident to stop and give aid, have been held in a number of states to mean that a failure to do so is negligence per se. 5. Good Samaritan Statute: Fl Statute 768.13: Any person, who in good faith renders care w/o objection from the person, is not liable when they act as an ordinary reasonable person would act under the circumstances. [Even doctors on the scene of the accident, but not in hospitals. a. (c)(1) if a doctor, in an emergency in the emergency room and there are no other doctors available, gives emergency aid when not required to do so, they are not liable for civil damages unless do so under willful or wanton conduct. 6. J.S. and M.S. v. R.T.H. a. Duty to control others: Spouses: Courts sometimes hold one spouse has the duty to restrain the other from harming the π. If the wife knows that the husband is sexually abusing a minor, the wife has a duty to intervene. b. Π’s were sexually abused by ∆1, and π’s claim that ∆2, his wife, had a duty to protect the girls from ∆1, and her failure to do so was a proximate cause of the sexual abuse. Court said that ∆2 did have a duty to protect, only if the acts were particularly foreseeable. This is because the wife is in a unique position to observe firsthand the telltale signs of sexual abuse. 7. Tarasoff v. Regents of the University of California a. ∆-third party relationships: the relationship between the ∆ and the thirdpaart may be such that the ∆ has a duty to control that party and prevent him from harming the π. b. ∆ psychotherapists had a doctor-patient relationship with Poddar, who told them of his intent to kill π. Because of the special relationship between ∆s and Poddar, ∆s had a duty to warn π of Poddar’s intentions, which he carried out, if a reasonable person would have done so. c. Exception to the rule of no duty to warn those in danger, is in cases in which the ∆ stands in some special relationship to either the person whose conduct needs to be controlled or in a relationship to the foreseeable victim of that conduct. Pure Economic Loss 1. State of Louisiana Ex Rel. Guste v. M/V Testbank a. Traditional rule disallows pure economic losses: π may not recover anything for his econimic losses, since he has not suffered any personal injury or property damage. This is true even though ∆ is clearly a tortfeasor, and even though ∆’s negligence foreseeably brought about the injuries to π. b. Two tankers (∆) collide causing massive damages to the surrounding waters. Many people bring lawsuits against the negligent tanker for there damages caused to them as a result of the accident. Majority: held for ∆ because all the damages were purely economic, so no recover, seems unfair, but to have it the other way would create too much liability. [Court made exception for local fishermen.] Minority: need to apply a rule of recovery based on conventional tort principles of proximate cause and foreseeability and limit eligibility only by the requirement that a claimant prove “particular” damages. Mental Disturbance and Resulting Injury 1. Daley v. LaCroix a. Physical injury without impact: Majority of courts allow recover where the π sufferes emotional distress which itself has physical consequences. [Over the last 30 years the impact rule has been rejected by every court to consider it.] b. Demise of the impact rule: impact rule eroded to the point that π’s own response of fainting and falling from fright could satisfy it. c. ∆ crashed into a telephone pole, resulting in a large power surge, and explosions of appliances in πs’ home. πs allege they suffered severe emotional disturbance and nervous upset as a result of the explosion and the attendant circumstances. i. Where a definite and objective physical injury is produced as a result of emotional distress proximately caused by ∆’s negligent conduct, the π may recover in damages for such physcial consequences to himself notwithstanding the absence of any physical impact upon π at the time of the mental shock. ii. Absent specific knowledge of π’s unusual sensitivity, there should be no recovery for hypersensitive mental disturbance where a normal individual would not be affected under the circumstances. iii. Π has the burden of proof that the physical harm or illness is the natural result of the fright proximately caused by ∆’s conduct. d. Where π had narrowly escaped imminent and serious harm to his own physical well being, the courts have readliy allowed recovery upon a demonstration of ensuing mental disturbance. (pedestrian almost struck by automoblie. 2. Thing v. La Chusa a. Presence at scene plus close relation: π who is not within the zone of danger must satisfy three requirements to recover: [Bystander liability] i. Is closely related to the injury victim; ii. Is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim; and iii. As a result suffers serious emotional distress—a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances. b. Π hears that her son has been struck by car and runs down the street to see him lying on the ground, and suffers severe emotional distress, and sues ∆. Π cannot recover because she does not satisfy the three requirements above. c. Traditional Rule: Zone of danger: one had to be in the zone of danger created by the ∆ in order to recover from purely emotional damages. [Mother could not recover] d. FL has retained the impact rule, [maybe], there are a few exceptions, but the general rule has not been abolished. i. Food exception [coke/condom case.], this exception, is made for the ingestion of a product that causes emotional distress. ii. But for the most part, there must be some sort of impact 762 So. 360. But because of the arbitrary nature of this rule, there are many exceptions to it. Unborn Children 1. Endresz v. Freidberg a. Requirement that child be born alive: An action can be brought for a stillborn only if it is determined on how the word “person” is interpreted in each state’s wrongful death act. Some states consider a fetus a person, and others do not. b. Restatement §869(2): will not allow recovery unless the state’s wrongful death statute so provides. c. ∆’s negligent act causes a car accident where π is injured, and two days later π gives birth to stillborn twins. Π sues ∆ for the wrongful death of the twins. Majority: tort protection beings at birth there for stillborns cannot recover. Dissent: if nurse or doctor causes stillborn at birth then they are immune from liability for the death of the baby, seems unjust. 2. Procanik by Procanik v. Cillo a. Wrongful Life: π argues that it would have been better off not being born at all, and that but for the negligence of ∆, the parents would have aborted. [Faulty contraceptive, misdiagnosis of the serious birth defect, etc.] b. Courts have never allowed recovery for this, but a small number of courts have allowed recovery for the medical expenses and emotional distress arising from the child’s condition. c. Congenital Defect: i. Parents of π would have aborted, if not for the negligence of ∆, a doctor who misdiagnosed the mother, and therefore led to the defects of π. ii. Wrongful Life: a cause of action brought by or on behalf of a defective child who claims that but for the ∆ doctor’s negligent advice to or treatment of its parents, the child would not have been born. iii. Wrongful Birth: a cause of action of parents who claim that the negligent advice or treatment deprived them of the choice of avoiding conception or, as here, of terminating pregnancy. iv. A child or his parent may recover special damages for extraordinary medical expenses incurred during infancy, and that infant may recover those expenses during his majority. v. Pain and suffering damages too arbitrary because the child would have been born that way. General damages also to arbitrary because the π would have had the same outcome, so long as born. 3. Kush v. Lloyd: In Fl, there must be a live birth in order to fall under the wrongful death act, and it was a fact question to determine whether the child was born alive. Owners and Occupiers of Land Outside the premises 1. Taylor v. Olsen a. Natural hazards: With regard to most conditions on land that arise in the state of nature, most courts have held that there is no duty upon the landholder to protect persons outside the premises. b. Π logged trees and a tree on his property fell over into the street where ∆ ran her car into it. ∆ was not negligent because he needed to exercise reasonable care to prevent an unreasonable risk of harm, and the only way he could have done that would to have drilled into the tree to see that it was rotten, and that is not a reasonable inspection. [Rejection of the Rural/Urban distinction] c. This rule has been extended in a number of cases where the owner of rural land has been held not liable for the growth and spread of weeds, on the ground that they were the “natural growth of the soil,” even though the cultivation was a contributing cause. d. An exception has evolved with regard to trees, and there is agreement that the landowner is liable for negligence if he knows that the tree is defective and fails to take reasonable precautions. e. Some states recognize a “self-help” rule, under which a landowner can resort to self-help and cut off tree branches and roots intruding onto his property from adjoining property. f. General Rule is the duty to use reasonable care in the maintenance of property. g. Common law, there was no duty for natural conditions, but once you altered the land, you owed a duty of care. 2. Salevan v. Wilmington Park, Inc. a. Artificial Hazards: the owner has a general duty to prevent an unreasonable risk of harm to persons outside the premises. This includes not only man-made structures, but also living things which have been artificially placed on the land [shrubs] as well as changes in the physical conditions of the land [excavations] b. Conduct of others: the landowner’s duty of reasonable care may require her to control the conduct of others, whose behavior on her property may cause injury to those off it. i. General Rule: the owner is responsible for preventing the activities of anyone on her property if she knows or should know there is danger to outsiders. ii. Π struck on the head by baseball as he walked past ∆’s park, ∆ had duty to protect those outside the premises from the conduct of those on the premises. Public has right to free and unmolested use of the public highways, and the ∆ was required to take reasonable precautions to guard against such injuries. iii. Most courts agree that a landholder owes a duty to a traveler who accidentally falls into excavations on land immediately adjoining the highway. iv. There is no liability as to dangers a considerable distance from the highway. v. But, when the land has a deceptive appearance of being a continuation of the public way, a duty may be imposed on the landholder to guard a trap or excavation even though the hazard is actually a considerable distance within private property. On the premises o Common law for people on the premises: duty that was owed depended on the status of the person: trespasser, licensee, and invitee. o Level of duty owed depended on the status of the person. o Trespasser: owed no duty, except from willful and wanton contact and reasonable care once the trespasser was discovered. o Licensee: duty to warn of hidden dangers or make those dangers safe if owner is aware of such dangers. [Social guest] o Invitee: same as licensee, but the owner also had duty to search the land for dangers. o Business invitee was the person there for the economic benefit of the owner. o If there was a potential economic benefit, that would do. o In Fl, Post, in Palm Beach: open house for tours, touree tripped and fell on plastic runner placed there by tour givers. What was the status of the touree? Expanded the test for invitee to any person on the premises with the express or implied invitation. o Social Guests were considered Licensee. People who were on the premises with implied consent [postman], and not an express or implied invitation. Any body who is neither an invitee nor trespasser is a licensee. o California rejects common law classification, and accepts the reasonable care, but the status of the π at the time of incident. o Fl: Wood v. Camp: redefine: instead of trespassers, licensee, invites; o Trespassers, uninvited licensee, invited licensee. o Social guests are invited licensee. o Duty owed to the uninvited licensee was the same as the old licensee. o Invited licensee was the same as invitee. o Duty that is owed by the condition of the premises, not by negligence. Persons outside the established categories: Children Attractive Nuisance: o If the owner or occupier enticed a child onto the property that owner owed a duty of care to the child to make that property safe. o Enticed: generally, some condition on the property which lured the child onto the property. o This condition overcame the child’s sense that a duty arose. o [House under construction, swimming pool] o Enticement was an artificial idea, and what was really sought was the foreseeability of children being on the property, or drawn onto the property in trespass. o § 339 Restatement (Second) of Torts: o A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if: o (a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and o (b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and o (c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and o (d) the utility to the possessor of maintaining the condition and burden of eliminating the danger are slight as compared with the risk to children involved, and o (e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children. o Location and prior knowledge of trespassing children is going to be significant. o Age of the child and nature of the condition are going to be factors of the duty owed. o Requires allegation in the complaint and then proof that the child was enticed onto the property. [In Fl.] o In California, duty of reasonable care is owed to everyone, so no doctrine of attractive nuisance. o Special Limitations on the Rules Protecting Children. There are two limitations that some jurisdictions have placed on rules that create a special duty to trespassing children. o First, some courts have eliminated "common hazards" on the ground that any child of sufficient age to be allowed at large by his parents, and so to be likely to trespass, can be expected as a matter of law to appreciate the danger and avoid it, or at least make his own reasonable and intelligent choice. o A second and more enduring limitation eliminates hazards that arise in the state of nature. o Courts have expressed a continuing reluctance to place a burden on the landholder to protect children from these conditions. Persons Priviledged to Enter Irrespective of Landowner’s Consent o Public Employees or officals: o At least five different answers have been given to the question of how public officials are to be treated. They have been: o (1) classified as licensees, o (2) classified as invitees, o (3) held as entitled to the duty owed to licensees or invitees depending upon the highest duty which the landowner already owed to some other person at that place and time, o (4) given a separate Classification, with a special duty owed to it, and o (5) held entitled to reasonable care under all the circumstances. o Private Persons. o The same kinds of problems, with some additional complications, exist in regard to private individuals who come on the premises for self-protection or to rescue or aid someone. o They may be privileged as a matter of law to enter, regardless of the landowner's consent. o Should the duty owed to them be derivative, depending upon the classification of the person being rescued? What would be the effect of that person's contributory negligence? If the duty owed is an independent one owed to the rescuer in his own right, do all of the possible answers listed in the previous paragraph apply? Perhaps all of this is an appropriate introduction to the next Section. Vicarious Liability o Is there are relationship between the two parties? o Respondeat Superior: o An employer is viciously liable to the acts of the employee if there is a close enough connection with an employment relationship: o If the act is committed when the employee is in the course of employment (job related) and act occurs while the relationship exists. o Generally, employer is only vicariously liable for the negligent acts of the employee, because intentional torts are not foreseeable. Employer has the ability to control the employee while employee is on the job. Foreseeability of the possibility of negligent torts committed by the employee. Damage caused by the negligence of the employee is a cost of the enterprise, therefore, it is reasonable for the enterprise to bear that cost, and they can shift that cost to the customer. o If there is a significant deviation from the course of employment [no liability], but if it is a minor deviation from the course of employment [liability]. Can be hard to determine. o Independent contractors are not within the control of the employer and therefore employers are not liable for their negligent actions. Cannot transform employer/employee relationship into independent contractors because it is the amount of control the employer has over the employee and not the words in the agreement. There is some employer liability for independent contracts: • Liability in the negligent selecting of the independent contractor, or • Nondelegable duties: if there is an extremely dangerous job, like nuclear power plants, or • Apparent authority: when one who expressly or impliedly represents that another party is his servant or agent may be held vicariously liable for the latter’s negligent acts to the extent of that representation. Relies on the representation to hold the party who made the misrepresentation liable. o Respondeat superior is on the basis of the employer/employee relationship. o Generally, it is appropriate to impute the negligence of the driver of the automobile to the owner of the automobile. [Also applies, to members of the family, because the law will view the family as a business] o Fl: The Dangerous Instrumentality Act: one who is driving the car with the consent of the owner, and negligently injuries third party, is going to have his negligence imputed to the owner. Makes no difference where the car goes, starts, or stops, so long as use is consensual. o 617 So.2d 1051: Hertz rents car to a mismatching license and credit card. Rentee negligently damaged another. Since car was eventually stolen; even though initially was consensual; the Dangerous Instrumentality Act did not apply. o What about cars that are leased; therefore driver is not owner? FL legislature: 324.01: lease for more than one year which requires a leasee to obtain insurance, in 100,000/300,000/50,000 amounts then the leasor is not responsible, and the driver/insurance policy is liable. Leasee less than one year (rental), the lessor is owner and liable up to $100K/person and $300K/accident. Unless driver does not have insurance in the amount of 500K in property damages and liability. For almost all leases, the lessor will maintain some liability b/c few drivers have that amount of coverage. If the owner is a natural person and loans a car to someone, liable for 100K/person 300/K incident, if the user doesn’t have up to 500K, the owner is liable up to 500K. If the driver doesn’t have 600K liability, you’re liable. o One who contracts for illegal activities is vicariously liable for any damages even if the agent is an independent contractor. o Negligent entrustment is when the owner might be liable for entrusting a chattel to a bailee. [Cars and guns given to minors, etc.] Imputed Contributory Negligence Smalich v. Westfall Facts: 1. π was a passenger her own car drinven by ∆, car was in an accident with Blank and π was killed. π’s estate brought wrongful death action and survival action against ∆ and Blank. This case only looks at wrongful death. Trial court found for π against both ∆ and Blank. Trial court overturned verdict against stating the as a matter of law that the contributory negligence of ∆ must be imputed to the owner of the automobile [π] and this precluded recovery by π’s estate against Blank. π’s estate appealed. Holding/Rules: o A π ought not to be barred from recovery agasint a negligent ∆ by the contributory negligence of a third person unless the relationship between the π and the third person is such that the π would be vicariously liable as a ∆ for the negligent acts of the third person. o A driver’s negligence will not be imputed to a passenger, unless the relationship between them is such that the passenger would be vicariously liable as a ∆ for the driver’s negligent acts. i. We therefore not state unequivocally that only a master-servant relationship or a finding of joint enterprise will justify imputation of contributory negligence. o The Supreme Court of Minnesota re-examined the whole problem of imputed contributory negligence recently in a well-reasoned opinion that deserves close study: i. There the court repudiated the application of the doctrine of materserrvan relation in automobile negligence cases, stressing the absurdity of the control argument, and the absence of need for a solvent ∆, unlike vicarious liability cases where the master properly is held accountable for the negligence of his servants. Notes: o Husband and Wife: o Today, the result is that, except in community property jurisdictions, the contributory negligence of one spouse is no longer imputed to bar a recovery by the other, on the basis of the marital relation alone. o “Both ways test”: a general rule adopted in many jurisdictions that contributory negligence will not be imputed unless negligence could be imputed. Many courts then accepted the converse of this proposition: if negligence can be imputed, contributory negligence will be also. o Liability is imputed to the permissive owner/driver situation. o No strict liability because there has to be an act of negligence for it to be imputed. Strict Liability o When a court imposes “strict liability” on a ∆ it is saying that the ∆ must pay damages although the ∆ neither intentionally acted nor failed to live up to the objective standard of reasonable care that traditionally has been then root of negligence law. o Thus far we have seen that most activities are judged on the basis of intent or negligence. This chapter focuses on activities that have been selected by judges over the past two centuries to bear the burden of strict liability. Animals o The liability being imposed, whether it is strict liability or negligence, is imposed on those who keep, possess, or harbor the animal, not just the owner. o Strict liability is not available against owner of escaped animal once someone else has taken possession of it. o Rule: the owner of animals of a kind likely to roam and do damage is strictly liable for their trespasses. [A definite barnyard pattern.] o Florida has a fencing in statute that requires the π to show ∆’s intent or negligence in order to recover if animals escape onto the highway. o Four variants of the rule: strict liability; fencing out; fencing in; and no liability without fault. o Wild Animals: o Under the common law of England, the owner or possessor of a non-domesticated animal was subject to strict liability if the animal injured anyone. o On the other hand the owner of a domestic animal such as a cat, dog, sheep, or horse was subject to strict liability only if the owner knew or had reason to know that the animal had vicious propensities. [Breed of animal was not enough to give notice, ex. Pit bull, or Doberman pinscher.] o The majority American position has followed the rule of strict liability in regard to wild animals. o Domestic Animals: o If the π is unable to prove that the owner knew or should have known of a domestic animal’s dangerous propensities, then strict liability does not apply and the π must prove neglignce in order to recover. o If the person is injured due to the failure of the owner to comply with the ordinance, the owner is “negligent per se” and so liable for the damages. o FL Statute 767.04: o The owners of any dog that bites a person shall be liable to that person, regardless of the prior viciousness the dog, but not be liable if the person mischievously aggravates the dog. o In Florida, statutory immunity is created for a dog owner who displays an easily readable sign that says “BAD DOG” in a prominent place in his premises. o Only liability if the π is in a pulic place or legally on the property. o Owners are liable for damages to sheep, other livestock caused by dog. o Fl Supreme Court said there must be an affirmative action by the dog to cause the damage, and therefore the dog’s act of chasing was an affirmative action and there was liability of the dog owner to the child that was injured. [So, tripping over a sleeping dog does not extend strict liability for the dog to the owner. Because the dog was not partaking in an affirmative action.] Abnormally Dangerous Activities Rylands v. Fletcher 1. ∆ put resovir on property to run mill, resovir flooded mine shafts which ran onto π’s property and flooded π’s mine shafts. π sued ∆ for strict liability for abnormally dangerous activities. Trial court found no liability. π appealed. Issue: Whether ∆ was strictly liable to π for damages resulting from abnormally dangerous activies. Holding/Rules: o Liability existed because, the court said, the ∆s put their land to a “nonnattura use for the purpose of introducing [onto it] that which in its natural condition was not in or upon it,” i.e. a large quantity of water. o If on the other hand, the court said, the water had entered during a “natural use” of the land, and had flowed off onto the π’s land, there would have been no liability. o Blackburn’s opinion: what is the responsibility of one who brings onto his land that which will do mischief? i. If one brings that object or condition onto the land, is answerable for all damages of the consequences of its escape. o Cairns opinion: Whether the ∆’s use of the land was a natural or nonnattura use of the land. i. If use for non-natural purpose, and use causes damage to third party, then strict liability. o Look at both the activity involved as well as the appropriateness of that activity in that location. o American Courts apply the view of the Restatements. i. First Restatement: Strict liability for ultra hazardous activity: an activity not a matter of common usage and which harm cannot be eliminated no matter how much reasonable care is used. ii. Second Restatement: [followed today]: strict liability for one who engaged in abnormally dangerous activities. 1. Court weighed six factors to determine whether an activity was abnormally dangerous. Don’t need to meet all factors, it is a weighing process. [Emanuel’s] 2. Looked to see if activity was inappropriate for the area. a. So if in proper area, there might not be strict liability. iii. The risk that causes the activity to be abnormally dangerous has to be the risk that causes the damages. [No strict liability for non-eggs laying chickens scared by explosion, no strict liability for horse smelling elephant from circus and running the other way.] o Strict liability proves the first two elements, but the last two still need to be proved, cause in fact, and damages. Indiana Harbor Belt R.R. Co. v. American Cyanamid Co. 1. ∆ was manufacturer of acid that was shipped by railcar to π. While railcar was on π’s property it leaked and cost π 1 million in clean up. π sued ∆ to recover damages for clean up on strict liability, because the acid was an ultra hazardous. Issue: Whether ∆ is strictly liable to π for damages from leaky railcar. Holding/Rules: o Accident was caused by carelessness, and since this type of accident can be eliminated by the use of due care in the part of all concerned, there is no reason to make the rail transport of the chemical more expensive by imposing strict liability on one party, the shipper/manufacturer. o Judge Posner, was an economical lawyer, and often followed the belief that when a wider rule of liability is imposed than necessary, costs will go up, and that the narrowest rule of liability sufficient to give the actors adequate incentive to control risks is all that should be used. Defenses: o Contributory negligence at common law was a complete defense, when asserted by the ∆. o Hoffman v. Jones: Comparative negligence is more attune to current policies in this country. [Instead of Contributory negligence] o A pure form of comparative negligence: under which the π can recover for the amount of damages caused by the ∆, reduced by the amount of fault the π contrubted to their own injuries. o Counter claims: jury must determine amount of negligence on the parties, and then return two verdicts. Judge will set off the judgments and enter one judgment for the remaining sum. o Do A/B; and A/C, then B/C. o Need jury form with specific questions to the jury. o Not all states follow “pure” comparative negli