I. INTRODUCTION AND HISTORY: DEVELOPMENT OF LIABILITY BASED UPON FAULT 1) What is a Tort? i. Body of Law ii. A Civil Wrong (as distinguished from a public wrong or a Crime) 1. “A civil wrong other than a breach of K, for which the law provides a remedy” p. 1 CB – What a tort is NOT, not what it is. 2. A tort action os a civil action to recover damages for personal injury or property damage due to the action or inaction of the D where the action is intentional, due to the neg. of D or where D is strictly liable for his/her action(s) iii. Amendatory System – Trying to prevent Self-Help 2) Damages – 3 Types i. Verguilt 1. Damages if death occurred ii. Bot 1. Damages if Personal Injury Occurred iii. Vite 1. Damages for incidents of treason, acts against the state 3) Common Law Writ System i. Trespass Viet Armas 1. Trespass 2. Immediate Injury 3. When there was only Trespass Viet Armas, many pleaders would alter the facts of the case to fit the terms of the writ they needed to plead the case. ii. Trespass Contra Pacem Regis 1. Trespass on the Case 2. Consequential Injury 4) Where did Tort Law Begin? Fault-based v. no fault system: i. Fault-based system – D should be held liable unless D can show inevitable accident 1. Anonymous a. Case says: You act at your peril. b. Did we begin with a system of No fault liability? c. All liability is the same. 2. Weaver v. Ward (P accidentally shot by P during the course of military action) a. Under a no-fault, absolute liability system, when the D admitted the action but pled that it was w/o fault, there is then, no case. D asked for immediate jt. b. *D must prove that he was not liable/negligent. c. Difference btwn state of mind for criminal and civil cases. i. intent required for criminal cases. d. Non-faulty conduct = inevitable accident ii. No-fault system – Only requirement, your act caused an injury. a. i.e. Worker’s Comp. Injured worker received compensation w/o regard to whose fault it was. Began ion early 20th C. 2. Brown v. Kendall (A HUGE CASE – D accidentally hit P w/a stick while attempting to separate fighting dogs) (similar to the hypo posed by Brian in Anonymous) a. Was the act necessary or just proper and permissible? i. If Necessary Not held liable IF acting w/Ordinary care ii. If only Proper and Permissable Liable UNLESS using extreme/extraordinary care iii. If No Intent D must use Ordinary care Ordinary Care – “The kind and degree of care, which prudent and cautious men would use such as required by the exigency of the case, and such is necessary to guard against probable danger.” Pp. 8-9 b. Burden of Proof that D did NOT use care was on P. i. In some JDs, the distinction btwn trespass and case survived until comparatively recently and in trespass, the burden of proof fell on the D, while in the case, burden fell on P. Finally abandoned in England in 1959. (Note 5) RULE: In order to be held liable, D must have intended to cause harm or, if the act was unintentional, it must have been done w/want of ordinary care. Burden of proof on P. c. Defense of Contributory Care: (adopted in British Court in Butterfield) If both D and P were not using ordinary care, D not liable. i. A more protective approach to liability. Industrial revolution was beginning and many tort Ds in Mass. At the time were industrial employers. (Note 4) 3. Cohen v. Petty (D lost control of car after suddenly being stricken by illness – could not anticipate illness.) a. Evidence which is not a definite fact. (Question of speed) i. Should we accept this opinion testimony? ii. If we didn’t accept this, we would eliminate much of what helps us develop the case. RULE: One who is suddenly stricken w/an illness, which he had no reason to anticipate, is not chargeable w/negligence. If he had reason to believe that he would be ill, then he can be held liable. iii. Strict Liability 1. Spano v. Perini Corp.(Blasting of construction site nearby cause damage even though no trespass and care was taken) a. In Booth, ct believed that the neg. should be required b/c NYC was just being built up in the 1880s and they wanted to encourage growth. b. This ct. decided to impose Strict Liability i. Upheld precedent, but said that based on that precedent, Booth should have been decided differently. II. INTENTIONAL INTERFERENCE WITH PERSON OR PROPERTY Stems from Trespass Viet Armes Writ 1) Intent i. 2 Types of Intent 1. Subjective a. It is Clear that D had intent 2. Objective a. If a reasonable person could have foreseen that harm might occur. ii. Garrat v. Daily (Child sued for battery for pulling a chair out from under an adult, causing injury) 1. Intent must be shown in 2 ways Desired Intent or subjective intent. RULE: In order to determine Intent, the act must be done for the purpose of causing the contact or apprehension or w/the knowledge on the part of the actor that such contact or apprehension is substantially certain to be produced. 2. Is a child liable for his torts? a. Yes. b. Age only comes into play when considering his knowledge that harm might occur. iii. Spivley v. Battaglia (Smith says: difficult to understand. A “friendly, unsolicited hug” which caused harm and resulted in a case of 1. Negligence 2. Assault and Battery) 1. Characterizing btwn Intentional and Neg. Conduct. 2. This is a case of A and B, which was classified as a Neg. case b/c the statute of limitations for A and B had expired. DEF. OF ASSAULT AND BATTERY: Harmful and/or offensive bodily contact . BATTERY: Intent to bring about the harmful or offensive consequence. 3. ***Distinguish btwn: a. Intent to Act i. D fires a gun – intends to fire the gun. b. Intent to Cause Harm i. The bullet hits someone – It is the intent to act, not the intent to harm that determined whether there is a tort. 1. i.e.: D fired gun intending to frighten P, not to hit him. Liable if P gets hit. iv. Ranson v. Kitner (D shot and killed P’s dog, believing it to be a wolf – Trespass to Chattel) 1. Mistake a. Mistake of Fact is not enough to defend a tort b. Mistake of Intent does not mitigate the act c. Why impose liability for mistake? i. In cases of mistakenly appropriating P’s property or cutting down trees on P’s property, believing the land to be one’s own, not to impose liability would UNJUSTLY ENRICH the D. (Note 3) d. Possible exception for Privilages i. i.e,: If one reaches for a handkerchief and D reasonably believes it to be a gun, D may rely on privilege of self-defense. (Note 4) v. McGuire v. Almy (Action for A and B where one who is clinically insane threatened and struck her caretaker, causing injury.) 1. Insanity is not a Defense – The Insane are held liable for torts (it is a defense in Criminal law) a. Exception – Note 4. Some jurisdictions have carved out narrow exceptions for institutionalized mentally disabled patients who cannot control or appreciate the consequences of their conduct for injuries caused for those employed to care for them. 2. Intent must be shown a. One acting while in a comatose state is not liable 3. Voluntary Intoxication is not a defense vi. Talmage v. Smith (D threw a stick at one boy on his property w/the intent of scaring him, hit another boy P causing injury.) 1. If D had NO KNOWLEDGE that P was on roof and NO INTENT to hit Smith (just to frighten) P cannot recover 2. If D threw stick at Smith (INTENT) and if force used was REASONABLE and NOT EXCESSIVE P cannot recover a. Property owners may defend their property as long as their act is not unreasonable. 3. If D INTENDED to hit Smith and force was UNREASONABLE D is liable a. Doctrine of Transferred Intent: Intent may be transferred (intended to hit Smith, hit Talmage – judged as intent to hit even if the eventual target was not where the intent lie. 2) Battery i. Def. of Battery: Unlawful, undesired, and unprovoked use of force on another person w/the intention to harm or create the fear of harm in that person; harmful touching. (Black’s Def.) ii. Cole v. Turner 1. If no violence and no anger in a gentle touch – No Battery 2. Force against another – force in a rude, inordinate manner – struggle that may do harm. 3. What a reasonable person may find offensive. 4. Note 2: Casts doubt of Spivey v. Battaglia. a. Note after Spivey: If you act w/intent, the damages will probably be traced farther than if it is neg. iii. Restatement 2d 1. §13. Battery: Harmful Contact “An actor is subject to liability to another for battery if a. he acts intending to cause a harmful or offensive contact w/the person of the other or 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.” (The act is still actionable if the harm is indirect). 2. § 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 w/the person of the other or 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. c. An act which is not done w/the intention stated in the Subsection (1,a) does not make the actor liable to the other for a mere offensive contact w/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.” 3. Differs from #1 above – what if the touch is a pat on the bum? a. Hypo: If I try to scare you, but do not INTEND to harm you, but I accidentally do harm you, am I liable? YES. 4. When the injuries caused are more serious than those reasonably anticipated, as long as the act itself was intentional, the D is liable. (Note 2) a. Vosberg v. Putney: Schoolboy kicked in the shins – Seen as an offensive act since the kick was so light, P didn’t even feel it. Couldn’t have been an attempt to cause harm. If the incident happened on the playground, D would not have been liable. 5. Battery does not require awareness on the part of the P. (Note 6) i.e.: act by Dr. while patient is unconscious. a. Does it make a difference if the Dr.’s act is beneficial? No, but may be taken into account when considering damages (see Mohr v. Williams) 6. Question of Consent: a. i.e. Transmission of an STD. Is consent for sexual relations consent if the P gets an STD? D must know that he is infected or must know that he has symptoms which should have made him aware that he had the STD or had unprotected sex w/someone they knew had and STD. (Note 7) iv. Fisher v. Carrousel Motor Hotel, Inc. (Action for A and B when a minority would not be served in a hotel, never physically injured) (Injury? An infliction of mental distress. A violation of Civil rights. At the time of this action, Tx had not instituted a law of emotional distress – had to be fit into A&B claim.) 1. Restatement said: the touch need not be direct. Even if there is no direct touching can constitute battery. a. How far removed does the action have to be for it to no longer qualify as a battery? i. What if the plate was snatched, but no words were exchanged, would that constitute a battery? No. ii. What if the waiter never touched the plate, but spoke the words, would that constitute a battery? No. Possible infliction if emotional distress or civil rights actions. Physical contact is necessary for a battery. iii. Blowing pipe smoke into one’s face, KNOWING they are allergic to it. Intent to do harm. (Note 3) 2. Responsibility of Employer a. Intentional torts are often outside the scope of the employment and the employer would, therefore not be held liable. (Why did the tct enter the jdgmnt “n.o.v.” (non obstante verdicto – Notwithstanding the verdict. A judgment by the ct in favor of one party notwithstanding the jury’s verdict in favor of the other party). May not have felt comfortable having a jury rule for monetary damages where no actual monetary damages exist.) 3) Assault Def. of Assault: The attempt or threat, accompanied by the apparent present ability, to inflict bodily harm on another; the display of force as to cause fear of bodily harm. (Black’s Def.) Restatement § 21. Interest in freedom from apprehension of a harmful action. i. I de S et ux. V. W de S (D came to home of P to buy wine, struck at P w/a hatchet but did not hit her) 1. May be liable for Assault even if there was no intent to harm. 2. Causing apprehension – an assault even w/o a battery. ii. Western Union Telegraph Co. v. Hill (Action for assault for threatened sexual encounter where D remained behind counter and never touched P). 1. Ability to commit the crime a. Important in Criminal but not in Civil cases b. It is the APPARENT, PRESENT ability to commit the battery, not the actual ability. i. As long as the P believes it COULD have happened. 2. Ct. states that every Battery includes an assault (p.35 CB) a. They are WRONG. i.e.: hit from behind i. Assault must be knowledge and apprehension (Note 6) 3. A conditional threat can constitute an assault a. i.e.: If you don’t pay me, I’ll kill you. 4) False Imprisonment Def. of False Imprisonment: the direct restraint of one person of the physical liberty of another w/o adequate legal justification. (p.38 CB) i. Big Town Nursing Home, Inc. v. Newman (Action for FI in a nursing home against the will of the P) 1. Freedom From Confinement (not necessarily total liberty) i.e.: can mandate that you only exit through one door, but there must be an exit. 2. If you have an unreasonable escape and are injured, that is false imprisonment. 3. “Confinement can be as large as U.S.A.” (Note 3) ii. Parvi v. City of Kingston (An action for FI by a boy who was drunk and loud in an alley and was taken to a golf course by police. P does not remember his confinement) 1. Issue of awareness. a. Restatement §42. There can be no liability for FI, unless the P is aware of the confinement at the time or is harmed by it. i. Freedom to go where the P pleases cannot be restrained if P is unaware. ?[Under the restatements 2nd, the case could have been found for P even if there was no awareness.]? from notes ii. Many states have statutory conditions for confining someone. If those statutes are followed, they are immune to liability, and if not, there may be a case. (Note 3) iii. Hardy v. LaBelle’s Distributing Co. (Action for FI where an ee of a dept. store was held in office after being accused of theft – she did not ask to leave and they did not tell her she could not go.) 1. How does one prove the necessary elements of confinements? a. There was no force to keep her. b. Did not tell her she could not go c. Did not lock the door. 2. She stayed out of “moral suasion” or “moral persuasion”. a. What is the diff. Btwn duress and moral persuasion. i. Difficult – a very fine line ii. Could you argue duress in this case? 1. If she didn’t stay to clear her name, she might loose her job. 2. Maybe she was under the impression that she was under arrest. iii. “I think that her att’y malpracticed” – Smith iv. Enright v. Groves (Action for FI where P claims that she was imprisoned for charges other than those she was convicted of) 1. D liable 2. No liability fot FI if the P actually committed the crime (Note 3) v. Whittaker v. Sandford (An action for FI where the D, a leader of a cult, kept P on his yacht for almost 1 month.) (Is this a case of breech of contract? Is the K necessary for the P to win the case?) 1. What is considered acceptable confinement? Do all ships need to allow people off the ship at port in order not to be liable? What about a cruise ship w/designated stops and only certain stops for debarkation? 2. Things to consider a. Age, Etc. i. What about parents wanting to “deprogram” a child in a cult. b. Be careful about making it determinant on the mindset of the P. ie: P in Hardy wanted to stay to clear her name, child in a cult, etc. 5) Intentional Infliction of Mental Distress i. A Very new Tort. ii. We are squeamish about embracing this kind of Tort. iii. difficult to administer. 1. Ranges from Screaming on the roadway (road rage) to the more serious case such as the one below. iv. State Rubbish Collectors Ass’n v. Siliznoff (St. Rubbish threatened P to get him to turn over his business. If he did not by tomorrow, then they would use violence. P finally agreed, but did not and D sued P for breach of K. P originally counter sued for Assault, but won for IIMD.) 1. What’s the diff. btwn. Assault and IIMD a. Assault must be the imminent threat of danger or harm. b. These threats made were for the future, not “imminent”, but mental distress. c. Damages for assault and IIMD are the same. 2. FI must be actual confinement. The threat of future confinement is not valid for FI. a. This was not a case of FI when they said get to the mtg or we’ll beat you, etc. b. Was he confined when he was at the board mtg? Smith thinks Yes. 3. the intentional action went on to cause a physical harm a. Smith believes that he could actually have sued for Personal Injury. (This was a new tort and Smith thinks that the ct didn’t actually have to go as far as they did w/this new tort and that they could have had the same result w/in the confines of already existing tort law.) b. Ct thinks that juries may be able to determine cases of Emotional distress which is outside the norm of reasonable conduct. BUT, it is difficult to ask them to try to connect a physical consequence w/emotional distress. c. Some states now require physical consequences, while others do not. 4. Intent a. This case shows intent in ways we have seen in other cases. b. Now, the def. Of IIED is when one Intentionally or recklessly causes severe emotional distress. Negligence /Recklessness /Intent (Note 7) v. Slocum v. Food Fair Stores of Florida (A clerk in a supermarket made a lude comment to P, aggravating a pre-existing heart disease, causing a heart attack) 1. Question of causal reaction a. It is not reasonable that one would have a heart attack from an insult. (even if P is sure that the comment was the cause) 2. Outrageousness a. What if the ee was aware of her condition? i. Intent --it turns this somewhat innocuous act into an outrageous act. b. Insults alone don’t usually apply to outrageousness c. Ct will take cases away from juries when it is clear that the jury cannot find the conduct to be outrageous . The conduct must be 1) outrageous and 2) cause severe emotional distress in a reasonable person. 3. Higher Standard a. There is a higher standard for common carriers and public utilities than to other businesses. i. People are more bound to the services of the public utilities than to other establishments. Restatement §46. “Conduct intended to cause emotional distress only.” A blanket provision for liability on the part of “one, who, w/o a privilege to do so, intentionally causes severe emotional distress to another,” indicating that the requisite intention exists “when the act is done for the purposes of causing the distress or w/knowledge *** that severe emotional distress is substantially certain to be produced by [such] conduct.” Note Abusive language is only one means by which the tort can be committed. CB p.52 vi. Harris v. Jones (Suit fir IIMD by GM ee w/a speech impediment) RULE: 4 elements must be fulfilled for one to be liable of intentional infliction of emotional distress: 1) Conduct must be intentional or reckless 2) Conduct must be extreme and outrageous 3) Must be a causal connection between the wrong conduct and the emotional distress 4) Emotional distress must be severe Restatement 2d of Torts: § 46. Outrageous Conduct Causing Severe Emotional Distress: 1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm. 1. Conduct of employees usually does not transfer to ERs. 2. difficult to show the causal connection of the emotional distress. 3. Jury Question a. Ct of app. Agrees that there is no jury question here. The question which must be determined is #4 of the Rule Causing severe, emotional distress. b. Smith still can’t believe this case. Doesn’t agree w/outcome He had always been surprised that the ct pulled the case away from the jury – it seems like a jury case. Today this case could have been addressed by the Am. Disability act. (Note 1 Jones v. Clinton case., Note 3. Johnson case., Note 6: Positions of authority or where D has the upper hand.) vii. Taylor v. Vallelunga (Where P was a witness to the battery of her father by D and, as a result, suffers severe fright and emotional distress but physical damages as a result of the mental distress.) 1. No transfer of intent. a. Not one of the first 5 trespass viet armis torts. Those are the only torts for which transferred intent is used. i. Why – Cts are still trying to limit the use of this tort. 2. Restatement § 46.2 states that a member of the immediate family can sue for IIMD, but non family members can have an action for IIMD only when there is Physical harm. Hypo: If they knew someone was there, but did not know that it was his daughter, would there be a claim? 6) Trespass to land i. Mistake is not a defense. Is it an intentional tp to land when one goes onto the property of another, causing no damage but, believed it to be his land. (Similar to case of shooting a fox v. dog.) ii. Good Faith is not a defense iii. Dougherty v. Stepp. (Where D went onto the property of P w/a surveyor and chain carriers for the purpose of surveying P’s land and claiming it as his own. No damage was done to property.) 1. Don’t have to prove damages to recover Hypo: If one is driving a car which accidentally goes off the road and onto someone’s land. Intentional? The P would only be liable if there are damages. iv. Bradley v. American Smelting and Refining Co. (Where P lived north of D’s plant and Sued for damages of TP and nuisance from heavy deposit on their property of microscopic and airborn particles of heavy metals.) 1. Protecting the exclusive right of possession 2. Must show actual and substantial damage. (I.e. get soil samples) v. Herrin v. Sutherland (While the D was hunting ducks and migratory game birds, and while standing on the property of another, shot repeatedly at waterfowl flying over P’s land.) 1. Air Space a. It can be a trespass for a plane to fly over P’s property. However, today most courts find liability only if: (1) the plane enters into the immediate reaches of the airspace (below federally prescribed minimum flight altitudes); and (2) the flight substantially interferes with P’s use and enjoyment of his land (e.g. by causing undue noise, vibrations, pollution). Rule of Law: A trespass to the land occurs when bullets or other foreign particles violate the airspace above the land. The interests of the land extend to bullets traveling over land, but not landing upon it. The modern approach would consider this a nuisance. 2. What about under the land? (Note 9) a. Whatever is in direct line btwn the land and the center of the earth belongs to the owner of the surface. P.69 CB vi. Rogers v. Board of Road Com’rs for Kent County (When D failed to remove an anchor post of snow fence and decedent was thrown to the ground causing fatal injuries while driving his mower, striking the post.) (The complaints were TP and negligence) vii. The privilege that the gov’t had to enter the land of the D ended when the K ended and the post which remained on the land was a tp to the land w/o privilege. Rule of Law: Subsequent to the expiration of a license to enter land, any injury due to the continued presence of that object, regardless of the fact that negligence was not a cause of the injury, is a trespass. A trespass that occurred only when the owner withdrew his invitation is actionable. 1. Possessor has the right to revoke an invitation for any reason. (Note 3) With the exception of civil rights acts (Note 5). Rule: Damages need not be foreseeable to constitute a tp claim. (note 4c) Although: cases where a pebble was accidentally knocked onto P’s property or a run-away car went onto P’s property doing damage, D not liable. (p. 15, note 1) 7) Trespass to Chattel Definition of trespass to chattels: “Trespass to chattels” is defined as any intentional interference with a person’s use or possession of a chattel. D only has to pay damages, not the full value of the property (as in conversion, below). i. Glidden v. Szybiak (where a 4 yr. Old girl was playing w/a dog on a neighbor’s porch and received a dog bite) 1. The P sues under a statute claiming that one is entitled to recover damages from a dog owner if injured by their dog UNLESS engaged in TP or other tort at the time. (the dog was not injured in this case). 2. There must be damage or deprive the owner of the use of the chattel for a substantial amount of time. Rule of Law: In order for a cause of action based upon trespass to chattels to be sustained, chattel owner must prove more than nominal damages to and intentional interference with the chattel. See: CompuServe Inc. v. Cyber Promotions, Inc. (Where D sent spam mail over P’s server – was the use of the server tp to chattel?) What is the damage in this case? Smith thinks that a better argument would have been intentional interference of Economic actions. 8) Conversion i. Tort of trover – established by alleging that someone took/found an item of yours and converted it to their own use. Damages that are recoverable. Damages are the value of the item on the day of the conversion (a forced sale of the item) Def of Conversion: Restatement --An intentional exercise of dominion or control over a chattel which so seriously interferes w/the right of another to con troll it that the actor may justly be required to pay the other the full value of the chattel. ii. Pearson v. Dodd (Former Ees of Sen. Dodd Copied files and replaced them in the cabinets. D published articles based on material. Dodd was not dispossessed of the items b/c they were returned and remained in Dodd’s possession.) 1. Holding was that the P was not deprived of the use or control of the items. No claim of Conversion. (Smith thinks the case is troublesome.) Restatement §222a makes it clear that motive may make a difference. Intention is looked at in these cases. III. PRIVILEGES REASONABLE is the watchword of privilege defenses. • Privilege is a consideration which avoids liability where it might otherwise follow. • Compare privilege and immunity. A privilege exists when D acts from a justifiable motive while there is immunity means you do not even look at motive. • Privilege only exists in intentional torts; negligent torts deal with assumption of risk to exculpate the defendant. A. MISTAKE 1. If the defendant entertained the intent necessary for the particular tort, such as trespass to land, battery or false imprisonment, mistake will be no excuse ordinarily, that he/she was mistaken as to something justifying his/her conduct. 2. If the defendant’s motive or purpose is that of self-defense or defense of another, then even though he/she may be acting under an erroneous belief as to the necessity for the exercise of this defense, he may be justified. 1) Consent 1. Express Consent: If P expressly consents to an intentional interference with his person or property, D will not be liable for that interference. Consent negates the existence of a tort completely. The act is no longer wrongful if it is consented to. 2. Implied Consent: Existence of consent may also be implied from P’s conduct, from custom, or from the circumstances. a. Objective manifestation: It is the objective manifestations by P that count—if it reasonably seemed to one in D’s position that P consented, consent exists regardless of P’s subjective state of mind. 3. Lack of capacity: Consent will be invalidated if P is incapable of giving that consent, because she is a child, intoxicated, unconscious, etc. a. Consent as a matter of law: But even if P is incapable of truly giving consent, consent will be implied “as a matter of law” if these factors exist: (1) P is unable to give consent; (2) immediate action is necessary to save P’s life or health; (3) there is no indication that P would not consent if able; and (4) a reasonable person would consent in the circumstances. 4. Exceeding scope: Even if P does consent to an invasion of her interests, D will not be privileged if he goes substantially beyond the scope of that consent. a. Emergency: However, in the surgery case, an emergency may justify extending the surgery beyond that consented to. b. Consent to operate on the right ear is not necessarily consent to operate on the left, and a patient who agrees to a minor operation on his nose does not thereby consent to a spinal tap. 5. Consent to criminal acts: Where D’s act against P is a criminal act, courts are split. The majority rule is that P’s consent is ineffective if the act consented to is a crime. 6. Consent can be done by agent if that agent has: a. The legal right to do so and b. Authority extends to include the act consented to, while c. The court should not be involved in the decision. (e.g. Parents have the legal right to consent to actions for their children, however, their authority does not extend to denying them medical treatment to save their life.) 7. Consent is not present when made under duress, or if D is responsible for P’s mistaken belief as to what actually will occur, or if there is fraud. 8. Consent to emergency medical care has requirements: a. Patient must be unconscious or without capacity and no one who has the legal right to consent is present; b. Time must be of the essence c. A reasonable person and plaintiff would probably consent. i. O’Brian v. Cunard S.S. Co. (Where P was vaccinated against her will on a ship and got a bad reaction to the vaccine. She did not voice opposition at the time and it was for her benefit) 1. When consent is in doubt, the circumstances can tell us whether the conduct of the P constitutes consent. 2. For a touching that could be deemed harmful and which causes a harmful reaction, the D cannot be deemed liable when there is consent. 3. Consent is not a defense to neg. Hypo: What about school children receiving vaccination? Can one opt out of consenting? ii. Hackbart v. Cincinnati Bengals, Inc. (During the course of a professional football game, the D Stepped forward and struck a blow w/his right forearm to the back of the kneeling P’s head causing both men to fall to the ground. This act is one which is prohibited by the official rules of the game. This occurrence was not seen or called by the refs and could therefore not be clearly stated as a violation of the rules of the game.) 1. Tct said that by playing this dangerous game, you are consenting to these acts. Assumption of Risk -If rules are developed to protect the safety of the players – and those rules are violated, the D can be liable, but not of violations of rules of mere decorum or gameplay. a. In the case of the child who’s shin got infected, the judge said that if it happened on the playground, then there would have been a different result than if it happened in the classroom. iii. Mohr v. Williams (P consented to an operation in her right ear, D operated on her left ear.) Rule: If a person should be injured to the extent of rendering him unconscious, and his injuries were of such a nature as to require prompt surgical attention, a physician called to attend him would be justified in applying such medical or surgical treatment as might reasonably be necessary for the preservation of his life or limb, and consent on the part of the injured person would be implied. P.92 1. If the act was beneficial and was performed in good faith, it does not excuse liability, but would be factored into the damages awarded. 2. If a conscious adult refuses treatment, the doc. cannot operate unless the patient is not of sound mind. 3. In most cases, consent of a parent is necessary before treating a child. Hypo: What if the parents refuse treatment which is necessary to the child? iv. De May v. Roberts (Doctor brought his friend to help deliver a baby and didn’t tell the P that he was not a physician) 1. Consent granted based on false beliefs is not consent. 2. Must be informed consent to patients a. Note 6: A physician must inform the patient of known risks associated w/treatment. Early cases treated these cases as a battery, now handled as neg. (Beginning 1960) v. Hart v. Geysel (The parties engaged in a prizefight during which the decedent received a fatal blow. Prizefighting is illegal.) 1. Typically, consent to an act negates liability for harm done as a result of that act. 2. One who is engaged in an illegal act should not collect for liability. 2) Self-Defense 1. Privilege Generally: A person is entitled to use reasonable force to prevent any threatened harmful or offensive bodily contact, and any threatened confinement or imprisonment. 2. Apparent necessity: Self-defense may be used not only where there is a real threat of harm, but also where D reasonably believes that there is one. Mistake may be acceptable in these cases. 3. Only for protection: The defense of self-defense applies only where D uses the force needed to protect himself against harm. a. Retaliation: Thus D may not use any degree of force in retaliation for a tort already committed. (Example: P hits D with a snowball. Ten minutes later, D hits P with a snowball, in retaliation. D has committed battery on P, because D’s act was not done in true selfdefeense. b. Imminence: D may not use force to avoid harm which is not imminent, unless it reasonably appears that there will not be a later chance to prevent the danger. 4. Degree of Force: Only the degree of force necessary to prevent the threatened harm may be used. If D uses more force than necessary, he will be liable for damage caused by the excess. a. Deadly force: Special rules limit the use of deadly force, i.e., force intended or likely to cause death or serious bodily injury. i. Danger must be serious: D may not use deadly force unless he himself is in danger of death or serious bodily harm. 5. Retreat: Courts are split on whether and when D has a “duty to retreat” (i.e. to run away or withdraw) if the threatened harm could be avoided this way. a. Restatement view: The 2nd Restatement holds that: (1) D may use non-deadly force rather than retreating; but (2) D may not use deadly force in lieu of retreating, except if attacked in his dwelling by one who does not reside in the dwelling. 3) Defense of Others i. General Rule: A person may use reasonable force to defend another person against attack. The same rules apply as in selfdefeense the defender may only use reasonable force, and may not use deadly force to repel a non-deadly attack. 1. Reasonable mistake: The Courts are split on the effect of a reasonable mistake. Older courts hold that the intervener “steps into the shoes” of the person aided, and thus bears the risk of a mistake. But Rest.2d gives a “reasonable mistake” defense to the intervener. 4) Defense of Property 1. General rule: A person may generally use reasonable force to defend her property, both land and chattels. a. Warning required first: The owner must first make a verbal demand that the intruder stop, unless it reasonably appears that violence or harm will occur immediately, or that the request to stop will be useless. 2. Mistake: The effect of a reasonable mistake by D varies: a. Mistake as to danger: If D’s mistake is about whether force is necessary, D is protected by a reasonable mistake. b. Privilege: But if the owner’s mistake is about whether the intruder has a right to be there, the owner’s use of force will not be privileged. 3. Deadly force: There is no privilege to use any force calculated to cause death or serious bodily injury to repel the threat to land or chattles, unless: there is also such a threat to the defendant’s personal safety. An element of immediate personal danger must be present. a. Escalation of a situation allows one to escalate accordingly the amount of force he/she may use with privilege. b. Burglary: But a homeowner is generally allowed to use force against a burglar, provided that she reasonably believes that nothing short of this deadly force will safely keep the burglar out. a. Spring guns and other man-killing devices are not justifiable against a mere trespasser or even a petty thief. b. Courts will not forgive an impersonal mistake. i. Katko v. Briney (D set up a spring gun to stop Tpers on his land when he was not there) 1. Mechanical devices: Property is never equal to value of life. Some states permit force if you are trying to repel a burglar or a violent intruder. a. Restatement §79. Mechanical Device: May be used if you could personally use it to inflict serious bodily harm or death if intruder threatens life and limbs of occupiers. (Self-Defense or Defense of Others, but not defense of property. 5) Recovery of Property 1. Generally: A property owner has the general right to use reasonable force to regain possession of chattels taken from her by someone else. One must demand the property back before using force, and if such a demand is rebuffed then one can use necessary force. Any excessive force is actionable, unless it was in response to the wrongdoer’s force (applying the “escalation rule”). a. Fresh pursuit: The privilege exists only if the property owner is in “fresh pursuit” to recover his property. That is, the owner must act without unreasonably delay. b. Reasonable force: The force used must be reasonable, and deadly force can never be used. There is less tolerance for the use of harmful force when dealing w/the recovery of chattel. c. Wrongful taking: The privilege exists only if the property was taken wrongfully from the owner. If the owner parts willingly with possession, and an event then occurs which gives him the right to repossess, he generally will not be able to use force to regain it. 2. Merchant: Where a merchant reasonably believes that a person is stealing his property, many courts give the merchant privilege to temporarily detain the person for investigation. a. Limited time: The detention must be limited to a short time, generally 10-15 minutes or less, just long enough to determine whether the person has really shoplifted or not. Then, the police must be called (the merchant may not purport to arrest the suspect himself). i. Hodgeden v. Hubbard (Merchant tried to recover a stove by force from a customer who misrepresented his credit rating) ii. Bonkowski v. Arlan’s Department Store 1. Most believe that the privilege of the shopkeeper is useless w/o also the privilege of some basic force. You generally cannot physically force someone off of your real property 6) Necessity 1. General rule: Under the defense of “necessity,” D has a privilege to harm the property interest of P where this is necessary in order to prevent great harm to third persons or to the defendant herself. 2. Public necessity: If interference with the land or chattels of another is necessary to prevent a disaster to the community or to many people, the privilege is that of “public necessity.” Here, no compensation has to be paid by the person doing the damage. i. Surocco v. Geary (Geary blew up buildings owned by Surocco in order to prevent the fire from spreading to the community.) Rule of Law: The law recognizes a privilege to damage property to avert threatened disaster when necessary in exigent circumstances. 1. Privilege of Public Necessity case. 2. If the mayor had made a mistake, would he be held liable? a. Reasonableness might make him not liable. ii. Vincent v. Lake Erie Transp. Co. (D kept that ship tied to a dock belonging to P during a violent storm causing damage to the dock.) 1. Private Necessity Rule of Law: Private necessity of avoiding destruction or damage to one’s property gives rise to a privilege is limited to entry and compensation must be made for any damage resulting from it. Forgiven for TP but responsible for damage incurred. 7) Authority of Law i. Descressionary ii. Administririal iii. 8) Discipline i. Privileges of parents. 1. Parent can exercise reasonable corporal punishment. “Family immunity” on the wane. There are exceptions for severe discipline. 2. Not unconstitutional for teachers to administer reasonable corporal punishment for disciplinary purposes. 9) Justification i. Sindle v. New York City Transit Authority IV. NEGLIGENCE 1) Standard of Care i. Reasonable and Prudent Person ii. Professional iii. Aggravated Negligence 2) Rules of Law 3) Violation of Statute i. Applicability of Statute ii. Effect of Statute 4) Proof of Negligence i. 2 main elements: 1. D or an ee of the D directly committed the act OR 2. D had actual notice and could have prevented the act. ii. Evidence 1. Kinds of Evidence a. Testimonials b. Real Evidence i. i.e.banana peal, torn tire, etc. c. Demonstrative Evidence i. Photos, diagrams, models, etc. d. Writings 2. 2 main categories of evidence a. Direct b. Circumstantial i. Allows a fact finder to infer from the facts. ii. Burden of Proof is on P. Question: Re-read Brown v. Kendall to see how the case might have been decided by directed verdict. iii. Court and Jury: Circumstantial Mixed question of law and fact-court decides questions of law, and jury decides questions of fact 1) The Sufficiency of the Evidence to Permit a Finding of the Facts • Before duty/standard of conduct may be set, must be proof of facts which give rise to it; once the standard is fixed, must be proof that the actor has departed from it. • If evidence is such that no reasonably intelligent person would accept it as sufficient to establish the existence of a fact essential to negligence, it becomes the duty of the court to remove the issue from the jury, and to nonsuit Ρ, or to direct a verdict for , or set aside a verdict once rendered. 2) The Weight of the Evidence as Establishing the Facts • Jury decides the probative value of the evidence and conclusions to be drawn from it 3) The Existence of a Duty • Whether the interest of Ρ which has suffered invasion was entitled to legal protection at the hands of . Question of law, to be determined by the court. 4) The General Standard of Conduct • In negligence cases, once a duty is found, the duty always requires the same standard of conduct as a reasonable person under the same or similar circumstances, except where statutory/common law modifications have recognized “degrees” of care, and higher/lower standards. Matter of law to be applied by court. 5) The Particular Standard of Conduct • What reasonable person would have done under the circumstances, to be determined in doubtful cases by the jury. 1. Goddard v. Boston & Maine R.R. Co. (Ρ fell on a banana peel in a railroad station.) a. no testimony as to the color or composition of the banana, since it is unknown how long it had been there, the D may not have had advance warning to rectify the hazard – no liability. b. If Proof that an ee dropped the peal or that the ee saw it and did not pick it up – liable. c. Carrier might have been held to the highest degree of care. 2. Anjou v. Boston Elevated Railway Co. (P slips on a banana peel left on the railroad platform.) a. No testimony as to how long Peel had been there BUT b. Testimony as to color and condition of the peel which suggested that the peel had not been freshly dropped and that D should have had ample warning. i. Showed a lack of due care. 3. Joye v. Great Atlantic and Pacific Tea Co. (P slipped and fell in D’s A&P supermarket) a. Supermarket customers are “invited” guests and are guaranteed, at least, due care. b. ct states that it cannot determine how long the peel had been there no liability (Smith disagrees and believes that, since supermarkets don’t tend to sell rotten bananas, it can be inferred that the banana had been there a while liable) 4. Jasko v. F.W. Woolworth Co. (P slipped on a slice of Pizza in D’s Woolworth) a. Despite the fact that P could not prove that it was not on the floor long enough for to have been put on actual or constructive notice, found that D followed a dangerous practice and should have known that something like this COULD happen liable. b. very close to a STRICT LIABILITY case. No need for notice. c. Burden of proof on the one most likely to win the case – party asking for relief has the burden of proving need for relief. d. This case uses Circumstantial Evidence. iv. Res Ipsa Loquitor “The thing speaks for itself” (ii) Allows Ρ to point to the fact of the accident, and to create an inference that, even without a precise showing of how behaved, was probably negligent (iii) Must be evidence from which reasonable persons may conclude that it is more likely that the event was caused by negligence than that it was not. Four requirements: 1. No direct evidence of ’s conduct 2. Seldom occurring without negligence 3. Exclusive control of 4. Not due to Ρ 5. Evidence more available to (some courts) -Inference that Negligence was ’s • Never enough for Ρ to prove injury by the negligence of someone unidentified. Purpose is to link with probability, already established, that the accident was negligently caused. • Ρ has burden of proof on preponderance of evidence. • Injury must be traced to specific instrumentality or cause for which was responsible, or it must be shown that Ρ was responsible for all reasonably probable causes to which the accident could be attributed. • must be in exclusive control of instrumentality causing accident -Multiple s • Unless vicarious liability or shared control, logical rule applied is that Ρ does not make out a preponderant case against either of two defendants by showing merely that Ρ has been injured by negligence of one or the other. Ybarra v. Spangard-decision based on special responsibility for Ρ’s safety undertaken by everyone concerned • not applied against multiple s, where inferable that only one has been negligent. -Eliminating the Plaintiff • Ρ is rarely static, and not necessary that Ρ be inactive, but merely that there be evidence removing the inference of Ρ’s own responsibility. • Should not preclude application where ’s probable negligence consisted in a failure to protect Ρ from hurting himself. • advent of comparative fault should eliminate this element from the doctrine, unless Ρ’s negligence would appear to be sole proximate cause of the event. • Comparative fault converts Ρ’s contributing fault from traditional function of barring liability into one of merely reducing damages. -Evidence More Accessible to Defendant • RIL cannot be applied unless evidence of true explanation of the accident is more accessible to D than to P. -Breach of Defendant’s Duty • has not exercised reasonable care, and is no proof that he had duty to do so. Res Ipsa Loquitur-Procedural Effect Usually, effect of res ipsa is to permit an inference that was negligent, even though there is no direct evidence of negligence. Thus allows a particular kind of circumstantial evidence. When res ipsa used, Ρ has met his burden of production, and thus entitled to go to the jury. “Where there is no direct evidence to show cause of injury, and the circumstantial evidence indicates that the negligence of is the most plausible explanation for the injury, the doctrine applies.” Specific Evidence Introduced by Ρ • Where facts are disclosed by evidence there is no room for inference, or by attempting specific proof, Ρ has waived the benefit of the doctrine. Pleading Specific Negligence • Four positions of court: Ρ by specific allegations has waived or lost his right to rely on the doctrine Ρ may take advantage if inference of negligence to be drawn is consistent with the specific allegations it may be applied only if the specific pleading is accompanied by a general allegation of negligence it is available without regard to the form of the pleading Effect of Rebutting Evidence General evidence of due care: If ’s rebuttal is merely in the form of evidence showing that he was in fact careful, this will almost never be enough to give a directed verdict. Rebuttal of res ipsa requirements: if ’s evidence directly disproves one of the requirements for the doctrine’s application, then will get a directed verdict (on prima facie case) 1. Byrne v. Boadle (While walking past the D’s shop, a bag of flour fell upon P’s head.) Rule of Law: When it is highly probable that an injury is due to the negligence of , and the had better access to the evidence concerning the injury, the doctrine of res ipsa loquitur creates an inference that was negligent, and puts the burden on to introduce contrary evidence. a. If P’s conduct contributed contributory neg.. no recovery b. When D is a common Carrier, Burden of proof shifts to rest upon them (notes 4&5) 2. McDougald v. Perry (Car driving behind Truck on highway, truck ran over RR tracks and the spare tire came out of its cradle and smashed into the windshield of the car.) a. Inference that the act is neg. liability i. The act could only have happened b/c of neg. by D. Restatement §328 Hypo: Airplane cases – weather is clear, there was a mechanical check of the plane, a crash – Res Ipsa Loquitor? 3. Larson v. St. Francis Hotel (P was walking on the sidewalk by the hotel and was struck on the head by a falling chair.) a. D did not have exclusive control over the chair in this case not liable. b. Something about this case bothers Smith i. D has more control over the evidence in this case. ii. D could have used preventative measures 4. Ybarra v. Spangard (P went to hospital for operation, ened up w/a paralyzed arm) a. Many Ds – Trying to impose Liability en mass. b. 2 conditions i. not due to P’s voluntary actions ii. accident must be one which does not ordinarily occur unless someone was neg. V. CAUSATION IN FACT 1) Sine Qua Non i. P must establish a prima facie case, “more probable than not” There must be some reasonable connection between the act /omission of and the damage Ρ has suffered. “legal cause” Merely the limitation which the courts have placed on the actor’s responsibility for the consequences of the actor’s conduct. Often legal limitation on the scope of liability is associated with policy 1. Causation as Fact • The classic test for determining cause in fact directs the fact finder to compare what did occur with what would have occurred if hypothetical, contrary–to-fact conditions had existed. • Cause in fact embraces all things which have so far contributed to the result that without them it would not have occurred. • P must show that ’s conduct was the cause in fact of Ρ’s injury. 2. The But-For Rule -Sine qua non/But for test: The defendant’s act or an omission is not regarded as a cause of an event if the particular event would have occurred without it. ’s conduct is a cause of an event if the event would not have occurred “but for” that conduct. -Vast majority of the time, the way Ρ shows cause in fact is to show that ’s conduct was a “but for” cause of Ρ’s injuries-had not acted negligently, Ρ’s injuries would not have resulted. -Joint tortfeasors: There can be multiple “but for” causes of an event, D1 cannot defend on the grounds that D2 was a “but for” cause of P’s injuries—as long as D1 was also a “but for” cause, D1 is viewed as the “cause in fact.” B. Proof of Causation • In general, Ρ has the burden of proof. Perkins v. Texas and New Orleans Ry. Co. Facts: A locomotive traveling at an excessive speed was involved in an accident that would have occurred even if the train had not been speeding. Rule of Law: Negligence will not give rise to liability if the injury would have happened even if the negligence had not occurred. Reynolds v. Texas & Pac. Ry. Co. Facts: Ρ, who was very fat, fell down unlit stairs at a train depot owned by . Rule of Law: Although an injury might possibly have occurred even in the absence of another’s negligence, if the negligence greatly multiplies the chances of accident to the injured person and is of a character naturally leading to the accident’s occurrence-the mere possibility that the accident might have happened without the negligence is not sufficient to break the chain of cause and effect between the negligence and the injury. Kramer Service, Inc. v. Wilkins Facts: cut his forehead on a piece of glass which fell from a broken transom when he opened the door in ’s hotel. Two years later, Ρ discovered that skin cancer had developed at the point of the glass injury. Rule of Law: One cannot recover for an injury if he shows just a possibility that the injury was caused by another’s negligence. Wilder v. Eberhart Facts: , a doctor being sued for malpractice, was not allowed to introduce expert testimony that there were other possible causes for Ρ’s injuries because the expert conceded that his opinion could not be expressed in terms of probability. Rule of Law: ’s expert witness may render an opinion regarding possible causation. Herskovits v. Group Health Cooperative of Puget Sound Facts: The negligence of caused a reduction in the chances of survival in a patient whose chances of survival were already less than 50%. Rule of Law: Ρ need not demonstrate that a decedent probably would have survived but for medical malpractice to state a cause of action for such malpractice. Dabert v. merrell Dow Pharmaceuticals, Inc. Facts: Ρ was not allowed to present expert testimony about studies that showed a drug manufactured by caused birth defects because the studies had not been verified by the scientific community. Rule of Law: An expert theory on causation need not be generally accepted as reliable in the relevant scientific community in order to be admissible. ii. 2) Proof of Causation Wilder Does burden of proof shift to D? Jury must still find whether D was neg. Granted motion in lemminy There were other possible causes other than the movement of the stomach Possibilities are enough and in this case the possibility offered is the least likely. Herskovits That the doctor misdiagnosed lung cancer is a stipulation in this case. Even if the cancer was diagnosed in the beginning, his chance of survival was 39%. Kramer says that causation must show that the cause of death must be, more probably than not, the result of the neg. Damages Additional med bills due to delayed diagnosis Shortened life b/c of late diagnosis Other approach to damages Reduced chance of survival 14% --Damages are 14% of what damages would have been for a misdiagnosis. Some JDs follow this and some don’t. Daubert Frye – S.Ct’s describing when an expert witness is qualified to testify in a Fed. Case. Question as to whether expert witnesses can be given an equivalent to a lie detector test (they could not). (1923) Follows the S. Ct’s decision in which the Frye case was overturned. No prior studies or articles had proven P’s case. P’s experts used animal studies and reinterrprete past studies and articles. Rule 702 Fed. Rules of evidence: S.Ct. said that this rule supplanted the Frye standard. Frye became one of 5 standards. Evidence that can be or has been replicated, tested, generally accepted in the med. Community. What substantive law applies? CA’s law of causation. Approaches: 1) Was it foreseeable? 2) Direct Consequences test: a. Christiansen Case (see p. 296): This test Once neg. can be established, D is responsible for all results that occur so long as nothing else interferes and that the damage is the result solely of the liability. i. 3) Concurrent Causes 4) Problems in Determining Which Party Caused Harm VI. PROXIMATE OR LEGAL CAUSE Must look at Neg. before we can ever get to proximate cause. If there was a duty of the D to the P. Claim for personal injury. Questions of Prox. Cause are USUALLY questions for the jury, unless the incident is highly extraordinary. Relation to Duty • Was under a duty to protect Ρ against the event which did in fact occur? • Duty may serve to direct attention to the policy issues which determine the extent of the original obligation and of its continuance, rather than to the mechanical sequence of events which make up causation in fact. • Is the conduct the proximate cause of the action • No duty cases: causal connection between the act and the harm is usually clear and direct, and the attempt to subdivide the indivisible by way of proximate often proves to be an obstacle to the determination of the real issue. • duty has been confined to questions of the existence of some relation between Ρ and which gives rise to the obligation of conduct in the first instance, and to deal with the connection between that obligation and the proximate consequences. Confusion with Standard of Conduct • Standard of Reasonable Conduct does not require to recognize the risk, or to take precautions against it. Confusion with Defenses to Negligence Action • in ordinary contributory negligence, causal connection clear, and no doubt that both parties have played an important part in bringing about the result • underscored when rule that contributory negligence is a complete bar is replaced by a comparative negligence rule; becomes an anomaly to use the proximate cause requirement as a basis for denying even partial damages • Proximate cause has been an extraordinarily changeable concept of chameleon quality Proposed Formulae 1. Nearest Cause 2. Last Human Wrongdoer 3. Cause and Condition 4. Substantial Factor Test 5. Justly Attachable Cause 6. Systems of Rules Problems Involved •Approaching proximate cause as a series of problems: 1. Problem of causation in fact: what part has ’s conduct played in bringing about the result? 2. Problem of apportionment of damages 3. Problem of liability for unforeseeable consequences: to what extent should be liable for results which could not reasonably have been expected to foresee? 4. Problem of intervening causes: should be relieved of liability by some new cause of external origin coming into operation at a time subsequent to ’s conduct; is new cause treated as superseding ’s responsibility? 5. Problem of shifting responsibility: is there another person to whom was free to leave the duty of protecting Ρ? 1) Unforeseeable Consequences RULE: One is liable for the consequences of ones acts and thus liable for damages resulting as a proximate cause of those acts, but NOT for remote damages. Often difficult to determine proximate v. remote damages. RULE: Consequences which follow in an unbroken sequence, without an intervening efficient cause, from the original negligent act are natural and proximate. Limitation of Liability to Risk A. Pollock : same criterion of foreseeability and risk of harm which determined whether negligent in the first instance should determine the extent of the liability for that negligence; no should ever be held liable for consequences which no reasonable person would expect to follow from the conduct Natural and probable consequences Time and Space The Same Hazard B. Limitation on Requirement of Foreseeability: The way in which the event occurs need not be foreseeable, so long as the event itself is to be anticipated. C. Keeton: Liable only for results which are connected to risk that you created. Anticipated “foreseeability” test. Must be foreseeable when you act. 1. What a reasonable person would determine as being the risks. 2. What were the bundle of risks created at the moment of negligence? (example: What are the risks when you place a can of poison on a shelf?) 3. Who is to be protected and from what harm? D. Restatement §435(2): Defendant is not liable for consequences which, looking backward after the event with full knowledge of all that has occurred would appear to be “highly extraordinary.” i. Ryan v. New York Central R.R. Co. (Where a RR engine sets a woodshed on fire, thereby causing the house near the woodshed and many other houses to catch fire.) 1. First house rule: the first house is the only one that can claim damages for a fire set. In this case, the D’s house was the first one to catch fire. The P can, therefore, cannot recover damages from the D. (Policy based rule, concerned about insurance regulations, growing cities and railroads) (Diff result in diff. JD) a. Similar to the insurable interest rule – One can only purchase insurance if they have an interest, there could be intentional damages done to claim insurance. (One cannot take out insurance on another’s home) ii. Bartolone v. Jeckovick (P was involved in a 5 car accident which aggravated a pre-existing paranoid schizophrenic condition which has totally and permanently disabled him. Proud of his physique, due to injuries, can’t work-out.) 1. case of unforseeability – Intervening event 2. RULE: When you cause harm due to your neg. you are responsible for all the injuries that occur as a result of your neg. a. pre-existing factors may be a consideration for damages awarded, but have no effect in determining liability. iii. In re Arbitration Between Polemis and Furness, Withy & Co., Ltd. (While the ship was being unloaded it was destroyed by fire when a servant negligently dropped a plank setting off a spark in the hold which exploded vapor seeping from the cargo of petrol and benzyne.) 1. RULE: The fact that the kind of damage which an act might probably cause was not the damage anticipated is immaterial so long as the resulting damage is directly traceable to the negligent act, and not due to independent cause having no connection with the negligent act. a. If all intervening features are in the control of the D, then D can be held liable b/c the intervening fetures could have been controlled and prevented or anticipated. iv. Wagon Mound No. 1 (Ρ’s wharf was seriously damaged when oil negligently discharged from ’s ship, spread across the water and later caught fire when molten metal dropped by ’s workmen ignited cotton waste floating on the surface.) 1. RULE: Even though injury may result from a negligent act, liability for that injury is limited to the risk reasonably known to be foreseen. a. Should be liable for all damage directly resulting from his negligent act? No b. From Polemis: Do not go for direct consequenceswwa the harm foreseeable? v. Wagon Mound No. 2 (Similar to above) 1. Gravity, probability and burden test. a. reasonable people in the position of officers would consider the furnace oil very difficult to ignite; b. their personal experience would be that this probably occurred rarely; c. risk of fire would have been regarded as a possibility but occurred only in exceptional circumstances; d. the chances of a fire would be considered remote; e. damage to Ρ’s ships would not be reasonably foreseeable, and, accordingly, damages could not be awarded. 2. If you can anticipate the risk of fire, than you must reduce the risk when possible and economically feasible. vi. Palsgraf v. Long Island R.R. Co. (Question of Proximate cause when a woman is hit by falling scales when a box, unknowingly containing fireworks, is dropped by the conductor. 1. “unforeseen P case”, Duty case v. Proximate Cause case 2. Cardozo: P was outside of the zone of danger/orbit of risk; Plaintiff must establish that there was a breach of duty owed to her and she must prove exposure to the risk in a reasonable way. 3. Andrews: If you are negligent, you are negligent. The negligence does not need to be directed towards a particular individual. There is a general duty of care owed to the society at large. 4. See note 9: exam-type question 5. §281 Restatement of Torts 6. This can be harmonized w/polimis case 2) Intervening Causes -Foreseeable rule generally: Most courts hold that is liable, as a general rule, only for those consequences of his negligence which were reasonably foreseeable at the time she acted. -Whether to be held liable for an injury to which has in fact made a substantial contribution, when it is brought about by a later cause of independent origin. -Most proximate cause issues arise here Ρ’s injury is precipitated by an intervening cause. An intervening cause is a force which takes effect after ’s negligence, and which contributes to that negligence in producing Ρ’s injury. -Intervening cause: cause which, in a time sense, comes into active operation in producing the result after the negligence of . Foreseeable Intervening Causes Often the risk of a particular kind of intervening cause is the very risk which made ’s conduct negligent in the first place. Intervening cause will almost never relieve of liability. •If intervening cause is one in which ordinary human experience is reasonably to be anticipated, or in which has had reason to anticipate, may be negligent for failure to guard against it, or simply for that reason. • Intervening cause + ’s conduct to produce the result, and ’s negligence = failure to protect Ρ against that very risk. • May include intervention of foreseeable negligence of other. • Even though foreseeable, not liable unless ’s conduct created or increased an unreasonable risk of harm through its intervention. Unforeseeable Results of Unforeseeable Causes • If can foresee neither any danger of direct injury, nor any risk from an intervening cause, simply not negligent. Question of negligence failure to anticipate that extraordinary/unprecedented rainfall will flood streets that pedestrian will slip and fall on an apparently safe highway. Acts of nature, animals, fall of an airplane, unpredictable behavior of irresponsible persons or children. Superseding causes: reckless/unusual driving of vehicles; tampering with dangerous articles left unguarded; stampede of a frightened crowd •Line drawn to terminate ’s responsibility, courts believe unfair to hold liable. Foreseeable Results of Unforeseeable Causes • Many cases have held the liable where result which was to be foreseen was brought about by causes unforeseeable loose pile of lumber knocked over by a stranger ladder left standing in the street blown over by an unforeseeable wind obstruction in the highway with which a runaway horse collides •If the result is foreseeable, the manner in which it is brought about need not be, and is immaterial. •Occasionally should not be held liable excavates a hole in the sidewalk and Ρ is pushed into is deliberately by a stranger Difference is a matter of intangible factors, lies in conclusion of courts as to whether responsibility is shifted. Dependent v. independent intervention: Courts sometimes distinguish between dependent intervening causes and independent ones. A dependent intervening cause is one which occurs only in response to ’s negligence. An independent intervention is one which would have occurred even had not been negligent and an independent intervention can be Normal Intervening Causes • Could not have been contemplated by reasonable person in the place of at the time of conduct, but which are nevertheless to be regarded as normal incidents of the risks has created. foreseeable in the sense that any event not abnormal may reasonably be expected to occur now and then, and would be recognized as not highly unlikely if it did suggest itself to the actor’s mind. Normal intervening causes held not to supersede ’s liability. Defensive acts will not relieve original wrongdoer of liability. • Rescue Doctrine-efforts to protect the personal safety of another have been held not to supersede the liability for the original negligence which has endangered it The risk of rescue, if only it be not wanton, is born of the occasion. The emergency begets the man. Thus independent duty of care owed to the rescuer, even when endangers no one’s safety but ’s own, even when time for thought. If defensive act unreasonable, may amount to contributory negligence which may affect recovery by the actor, but will not prevent ’s liability to a third person injured. i. Yun v. Ford Motor Co. (While driving on the Parkway, the plastic cover, spare tire and support bracket broke off P’s van. P’s father, 65 yrs old, ran across parkway to retrieve the tire and was killed as he was headed back to the van.) 1. Restatement Torts § 435(2): The actor’s conduct may be held no to be a legal cause of harm to another where after the event and looking back from the harm to the actor’s neg. conduct, it appears to the ct highly extraordinary that it should have brought about the harm. Rule: A tortfeasor will be held responsible for his neg. conduct if it is a “substantial factor” in bringing about P’s injuries. Where, however, concurrent forces are involved, the manufacturer of a defective product may negate strict liability upon a showing of an intervening, superseding cause or the existence of another. ii. Derdiarian v. Felix Contracting Corp. (Ρ was severely injured while working at an excavation site constructed by , when an automobile driven by an epileptic, careened onto the site.) 1. Rule: An intervening act will not serve as a superseding cause, relieving of liability, where the risk of the intervening act occurring is the very same risk which rendered negligent. 2. Intervening cause becomes the superseding cause when the intervening cause cannot be foreseen a. Restatement §442 When is an intervening act a superseding act? iii. Watson v. Kentuckey & Indiana Bridge & R.R. Co. (Through ’s negligence, a tank car of gasoline derailed and began leaking. One Duerr struck a match causing the vapor to explode and injure Ρ.) 1. If the fire was set unintentionally, then the result is foreseeable and D is liable 2. If the fire was set intentionally or maliciously, the criminal act is not foreseeable and D is not liable. (Ky ct may not follow this today) a. At one time, a criminal act automatically negated neg. NOW, if we can expect some criminal conduct, D may still be liable. Note 3 iv. Fuller v. Preis (Ρ’s decedent committed suicide, allegedly the irresistible impulse of head injuries suffered in a car accident.) 1. As a matter of law, an act of suicide is not a superseding cause in negligence precluding liability. 2. RULE: An initial tort-feasor many be liable for the wrongful acts of a 3d party if foreseeable. v. McCoy v. American Suzuki Motor Corp. (P attempts to aid a man whose car turned over. After the incident, as he was returning to his car, he was hit by a car.) 1. Rescuers are Foreseeable Plaintiffs 2. Rescue doctrine (see above) does away w/the assumption of risk. a. Prof. Rescuers can’t avail themselves of the rescue doctrine (also b/c they have workers comp and can recover) 3. Even in a rescue case, P has to prove proximate cause. 4. Liability extends to all harm done as a result of the act if the intervening causes are foreseeable. a. E.g. If one in injured in a tort and taken to the hospital and receives bad med. Care under malpractice. Original tort-feaser is liable. b. E.g. One is weakened in health b/c of a tort and b/c they are weakened, and gets another illness (eg pnamonia) and die of the 2d illness, Original tortfeese is liable. 3) Public Policy i. Kelly v. Gwinnell (D was at the home of a co-worker having a couple of drinks and caused an accident while driving home. P sued the Social Host for serving D knowing he was driving home.) 1. In most states, a social host cannot be held liable (that is not how this ct rules) 2. Policy: drunk driving is such an egregious act that ct should impose liability. 4) Shifting Responsibility 5) 5. Intentional Infliction Of Mental Distress 6. Trespass To Land Is it an intentional tp to land when one goes onto the property of another, causing no damage but, believed it to be his land. Mistake is not a defense. Similar to case of shooting a fox v. dog. Dougherty v. Stepp. Note 6: Don’t have to prove damages to recover Mistake is not a Defense Good Faith is not a defense If one is driving a car which accidentally goes off the road and onto someone’s land. Intentional? The P would only be liale of there are damages. Bradley v. American Smelting and Refining Co. Why is this case in a Fed. Dist. Ct? Diversity of citizenship. Protecting the exclusive right of possession Must show actual and substantial damage. I.e. get soil samples Note 1: Is there a claim for affecting contractual relationship w/other? Herrin v. Sutherland P wants a jt sayng that D is tping. Is it sufficient that the item “fly over the land.” or does the item need to lands on the property directly. Note 9: Rogers v. Board of Road Com’rs for Kent County The complaints were TP and negligence In this jurisdiction, there is gov’t immunity in neg, but not in cases of intentional Torts. Therefore, this case must be tried as a tort case and nor as a neg. case. What was the intentional tort? The privilege that the gov’t had to enter the land of the D ended when the K ended and the post which remained on the land was a tp to the land w/o privilage. The See note 3: Yes, Note 5: Exceptions include civil rights acts See Note 4 b,c The statute quoted in the case notes exception for Tp. This could have been built in b/c many people use dogs to protect their property. If this is the case, is it appropriate to try this case based on tp to chattel? See p. 15, note 1 Note 3: can you exclude people from your land? Yes Note 5: exceptions to the above include civil rights statute. Almost looks like strict liability, but is not. (p. 15 note 1, Randall v. Shelton – Must be negligent and intentional) Consequences for what we call liability. We can explain treating this individual as being liable for personal injury by transferring the intent of trespass to land to intent of personal Injury. Note 4b,c: Glidden v. Szybiak P sues on a statute claiming The statute claims unless engaged in TP. This may have been built into the statute to protect people who keep dogs to protect property. One must look at the full picture of the item and its use to know if a tp to chattel has occurred. CompuServe Inc. v. Cyber Promotions, Inc. What is the damage in this case? Smith thinks that a better argument would have been intentional interference of Economic actions. 8. Conversion A. Nature of the Tort Tort of trover – established by alleging that someone took/found an item of yours and converted it to their own use. Damages that are recoverable. Damages are the value of the item on the day of the conversion (a forced sale of the item) Pearson v. Dodd Dodd was not dispossessed of the items b/c they were returned and remained in Dodd’s possession. Holding suggests no breech of privacy and no conversion. P could have looked to other areas of torts – TP to land? The case is troublesome. §222a makes it clear that motive may make a difference. Intention is looked at in these cases. Mistake of fact is not a defense. A person knowingly purchasing goods from a thief did not purchase in good-faith and could be guilty of conversion. Question as to whether one who tries to return the goods after conversion must pay value if so requested by the orig. owner. In many cases, if the goods were gotten in good-faith and there was no damage to the goods, one may be able to return the goods in lieu of paying market value for them. Damages: Fair market value at the time of theft. The possessor of the goods has the cause of action. One may FI one by taking goods of value which belong to them Restatement 2d (Torts) §222A: What Constitutes Conversion? P.82 B. Effect of Good Faith C. Necessity of Demand; Return of Chattel D. Damages E. What May be Converted F. Who May Maintain the Action VII. PRIVILEGES 10 Defenses to intentional torts Consent Standard defense Defense of others Defense of Property Recapture of Property Public necessity Private necessity Assumption of risk 1. Consent O’Brian v. Cunard S.S. Co. She sued for Battery and Negligence. Neg is nit discussed in this case, but the ct claims no neg. b/c the neg. of the doctor does not carry over to the ship. Was there consent in this case? Yes. When consent is in doubt, the circumstances can tell us whether the conduct of the P constitutes consent. What if she didn’t want it, but didn’t express that. Does that change the result? No. The doctor would not have been privy to her discontent and could only go by her words and actions. For a touching that could be deemed harmful and which causes a harmful reaction, the D cannot be deemed liable when there is consent. What about school children receiving vaccination? Can one opt out of consenting? Note 1: No. Not a willing recipient. Note 2: married, No. Date, ?. Stranger, Yes. Hackbart v. Cincinnati Bengals, Inc. This occurrence was not seen or called by the refs and could therefore not be clearly stated as a violation of the rules of the game. Tct said that by playing this dangerous game, you are consenting to these acts. -In the case of the child who’s shin got infected, the judge said that if it happened on the playground, then there would have been a different result than of ot happened in the classroom. If rules are developed to protect the safety of the players – and those rules are violated, the D can be liable, but not of violations of rules of mere decorum or gameplay. If one player is intentionally hit from behind is not injured, is there liability. Possible nominal damages If one player is hit in the normal course of the game, but incurs serious injury. No liability. Note 2: Softball injury. Liable? Was it intentionally done? If yes than liable, if no, not liable. S.Ct states that it may be worth bringing the suit and in dicta states that we must look at whether the injury/act was foreseeable. Mohr v. Williams What harm was done? “this surgery was no mere pleasantry” An offensive touching. The jt of this case could do harm to future patients b/c it requires 2 doses of anesthesia. This case was beneficial and was performed in good faith, so while this does not excuse liability, it is factored into the damages awarded. A technical battery Meets the criteria for a battery, but doesn’t cause harm. P sues for battery. Appellate ct talks about A & B. Was there assault. Must be aware for there to be assault. What if an adult comes in and is dying and conscious, but refuses treatment can the doctor operate? It would depend on the mental capacity and stability of the patient. If they are deemed in good mind, they have the right to refuse treatment. What if the patient says she only wants female health care workers and finds out when she wakes up that a man worked on her. Hospital is liable. Note 7: Thor case. A prisoner jumped off a wall and was paralyzed. Decided to refuse food and the prison health care worker tried to get a tube inserted to force feed him. Prisoner was deemed of sound mind and had the right to refuse food. Is the consent of the parent necessary to give treatment to a child. Yes. W/some exceptions. Note 13: Yes, but doctors will often get a ct order before performing the procedure just to protect themselves. What if the parents refuse treatment which is necessary to the child. De May v. Roberts Was there consent in this case? When the doctor enters he house, he says that he brought along a friend to help carry his things. The husband should have been able to ascertain from this statement that the man was not a physician, but that was not the case here. Was there assault and battery, or just battery, since the P was not apprehensive, believing Scattergood to be a doctor. Consent granted based on false beliefs is not consent. Note 2: Consent to sexual intercourse is not consent to a sexually transmitted disease. Last case in this note re: husband who has an affair. Note 5 Note 6: A physician must inform the patient of known risks associated w/treatment. Early cases treated these cases as a battery, now handled as neg. (Beginning 1960) Hart v. Geysel Typically, consent to an act negates liability for harm done as a result of that act. Since the conduct here is unlawful, can D be held liable? Ct states that they don’t believe one who is engaged in an illegal act should collect for liability. 1. Self-Defense Use of force which is necessary, and no more, is acceptable. Here, we may forgive a mistake. If one believes that one is reaching for a weapon, but is not, and the belief that they were reaching for a weapon was a reasonable belief, then the mistake is forgiven. Do you have to retreat? Some say yes, most say NO Defense of others – you may go to the help of others, but if you go to the aid