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					OUTLINE                                                                                   TORTS 2
                                                                                        Prof. Shapo

Spectrum of Intentionality

I         D      K/w/S/C            R           GN             N                SN           SL

I                Intent
D                Desire
K/w/S/C          Knowledge with Substantial Certainty
R                Reckless
GN               Gross Negligence
N                Negligence
SN               Strict Negligence
SL               Strict Liability

I.        Battery – An intentional contact with another person, either harmful or offensive, that is
          unconsented or unprivileged.
          A. Intentional
                 1.   Willful Purpose. Intent to make contact (which is harmful) or place in apprehension
                      of harmful contact. Vosberg, child had a willful purpose to kick the other student even
                      though did not intend to hurt or maim her.
                 2.   Knowledge with Substantial Certainty. Garrett v. Bailey, child didn’t have to
                      foresee the potential harm (as would be required for negligence) but only had to know
                      with substantial certainty that pulling out the chair could be harmful.
          B. Contact
                 1.   Direct. Vosberg v. Putney, kid kicks other kid in shin.
                 2.   Indirect. Garret v. Bailey, didn’t event touch  at all (an indirect touching…hitting
                      the ground).
                 3.   Connected Things Principle. Fisher, grabbing and holding plate in buffet line was
                 4.   Unconscious, reflexive, or acts by incompetents don’t count.
                 5.   Policy: touch objectively shows possibility of injuring another. Provides a clear rule.
          C. Harmful or Offensive

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                 1.   Either must be harm or contact which is outside the norms – everyday touching is not
                 2.   Policy, certainly can’t make all contact in a crowded society tortious.
          D. Unconsented or Unprivileged
                 1.   Consent – from individual.
                 2.   Privilege – granted by society. Unprivileged if unlawful or against the rules.
          E. Awareness of contact not necessary
          F. Unforeseen consequences. Responsible for all damages – “take victim as you find him.”

II.       Assault – Intentional act causing apprehension of a battery.
          A. Act. Hold up fist, draw sword or gun, or point a pitchfork. More than words or threat alone!
             Read v. Coker, men rolled up their sleeves and threatened to break his neck (abs. boundary).
          B. Intent to cause
          C. harmful or offensive contact or reasonable apprehension of such.
          D. Actual Apprehension.
                 1.   Person must be at least apprehensive of the contact (doesn’t need to be fear). An
                      unconscious or asleep person cannot be assaulted.
                 2.   Must be reasonable apprehension.

III.      False Imprisonment – Intentional infliction of an unconsented, unprivileged confinement.
          A. Intent to confine. Need only intend to confine (doesn’t have to be intent to wrongfully
             confine). Deliberate indifference to confinement also intent to confine.
          B. Confinement. “Within boundaries fixed by the actor.” Could include taking someone’s
             luggage thus compelling them to come with you.
          C. Act - Duress, Actual Force, or Arrest. Words alone not enough – must have something
          D. Unconsented and Unprivileged
          E. Knowledge of or harm from confinement. Semi-conscious diabetic thrown in jail even
             though not aware of confinement.

IV.       § 1983 (Constitutional Dimensions)
          A. Extra layer to ordinary tort theories (e.g., assault and battery).
          B. Constitutional Violation: 5th Amendment (false arrest / false imprisonment), illegal search
             and seizure (4th Amendment), due process (8th Amendment).
          C. Color of law. Acting under color of law.
          D. When apply:
                 1.   “Shock the conscience” majority opinion from Justice v. Dennis.

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                 2.   “Reasonably necessary” dissenting opinion – now the better law.
          E. Policy, balance between personal freedom and police authority to protect societal interests.

V.        Slander
          A. Spoken defamation. Defamation generally injury to reputation.
          B. Must plead special damages unless one of four categories of general damages
                 1.   The imputation of a loathsome disease.
                 2.   The imputation of the inchastity of a woman.
                 3.   The imputation that you have committed a crime.
                 4.   Other: Fourth “fall back”: show that intended to injure the person in trade, business, or

VI.       Domestic Abuse
          A. Continuing tort
          B. Pattern of events
          C. Statute of limitations. Treating as one continuing tort with a patter of events, rather than
             separate incidents, allows submission of all evidence including what might have been barred
             by the statute of limitations.
          D. Policy, to condemn domestic violence.

VII.      Intentional Infliction of Emotional Distress (Tort of Outrage), R.2d § 46.
          A. Outrageous conduct
                 1.   Atrocious and beyond bounds of decency.
                 2.   Average person exclaim, “outrageous!”
                 3.   Vulnerability of  is a consideration.
                 4.   Workplace sexual harassment is outrageous. Shaffer v. National Can Corp..
                 5.   Higher hurdle for public figures (“actual malice”). Hustler v. Fallwell, no right to
                      recovery because had to show magazine acted with actual malice when published
                      cartoon parody of Fallwell drunkenly having an incestuous relations with his mother
                      in an outhouse.
          B. Intentional or reckless (purposeful, willful or wanton)
                 1.   Must usually intentionally cause emotional distress.
                 2.   At minimum, must act with conscious disregard where there is a “high degree of
                      probability that the mental distress will follow.”
          C. Actual severe emotional distress. Must be extreme, severe, and disabling.
                 1.   Braski v. Ah-Ne-Pee, cannot be mere temporary discomfort. Also, evidence  never
                      consulted physician until immediately before trial showed not severe distress.

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                 2.   Russell v. Salve Regina College, (app. ct.), because student enrolled elsewhere and
                      completed nursing degree wasn’t severe emotional distress.
                 3.   Usually need medical testimony and physical manifestations of distress.
          D. Third parties can collect. Child witness of father’s verbal abuse of mother.
          E. Most often involve dead bodies or debt collection.

VIII.     Not a tort - Worker’s Compensation for Mental Illness
          A. “Arising out of and in the course of employment.”
          B. Mental or physical injury.
          C. Workmen’s Compensation Plans
                 1.   Don’t need to show fault.
                 2.   No bar from recovery because of contributory negligence.
                 3.   Cannot try and recover for tort.

IX.       Invasion of Privacy – intentional conduct that intrudes upon a confidential zone or sphere in a
          way that the law deems offensive.
          A. Intentional conduct
          B. Improperly intrudes – is offensive.
                 1.   Wiretapping definitely improper. Nader v. GM.
                 2.   Following and surveillance probably not unless overzealous. Nader v. GM.
                 3.   Harassing phone calls and being accosted by loose women not. Nader v. GM.
                 4.   Interviews of third parties not. Nader v. GM.
                 5.   Police looking in car with search light not because car not in private place and within
                      privilege. Navratil.
                 6.   Collection of person’s hair from hospital comb to entrap for extra-marital affair was.
                      Froelich v. Adair.
          C. Confidential zone / sphere. Intrusion into “something secret” versus merely “personal
          D. Policy, protect dignity and personhood.

X.        Personal Property Torts
          A. Conversion. Someone treats another’s property as their own or severely interferes with the
             property (take car, drive to Alaska, and return it much later).
          B. Trespass to Chattel. Very minor tort when someone exercises some amount of control over
             another’s property (take, drive around block, and return it).

XI.       Prima Facie Tort (A tort on the “face of it”).
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          A. Intentional infliction of harm
          B. Causing special damages
          C. Without justification (spiteful). “Disinterested Malevolence.” Illegal strike by union
             employees not prima facie tort because not acting with disinterested malevolence.
          D. Act or series of acts otherwise lawful.
          E. Policy, traditional classifications of tort don’t cover all wrongs.

XII.      Morrison (Judge Brietel opinion)
          A. Intentional Conduct. Not intentionally causing harm. NBC wasn’t trying to hurt Morrison –
             was trying to run a game show.
          B. Causing foreseeable harm. Was foreseeable that would harm Morrison’s reputation.
          C. Corrupt Purpose. Morally wrong. Tricky issue because judge is moralizing. Plus, isn’t
             their societal value to game shows?
          D. No social justification. Defendant does have purpose (distinguishing from prima facie).
          E. Different from other torts:
                 1.   Prima Facie: not disinterest malevolence because working for their economic gain.
                 2.   Defamation: nothing published or said that was derogatory about Morrison and didn’t
                      really care what happened to him.
                 3.   Deceit / Fraud: misrepresentations weren’t for the purpose of inducing reliance.
                 4.   Negligence.
          F. Appellate court rejected because said was essentially claim of defamation barred by statute of

XIII.     § 870 (Liability for Intended Consequences)
          A. Intentionally cause injury
          B. Generally culpable
          C. Unjustified under the circumstances.

                              Prima Facie                 Morrison                   § 870
Intent to Harm                Yes                         No                         Yes
Foreseeable Harm              Yes                         Yes                        Yes
Spite                         Yes                         No                         No (but ulterior
Need to be unjustified        Yes                         No                         Yes
Otherwise legal               Yes (maybe not –            Yes                        Yes

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I.        Self Defense
          A. Proportional force to that presented
          B. Deadly Force (R.2d § 65)
                 1.   Only when believes necessary to prevent death or serious bodily harm.
                 2.   Attacked in own home.
                 3.   Not allowed if have opportunity to retreat (except in own home / dwelling).
          C. Non-deadly Force (R.2d § 63)
                 1.   Must still be proportional.
                 2.   Don’t need to retreat.

II.       Defense of Property
          A. No deadly force. Only allowed deadly force to protect human life.
          B. Unprivileged intrusion
          C. Reasonable force to prevent intrusion
          D. Warning. Provide adequate warning.
          E. Spring guns. Banned per se for trespass. But, reasonableness test applies for other types of
             defense. Katko v. Briney, spring gun on vacant property causing serious injury not allowed to
             defend against trespassers…exceeded reasonable necessity.

III.      Merchant’s Privilege
          A. Probable Cause. Must manifest unequivocal intent to steal by exercising control and
             attempting to leave without paying..
          B. Specific Purpose for Detention. Detain to recover property, investigate ownership, deliver
             to police officer, etcetera.
          C. Restraint within limited area. Within store or (possibly) immediate vicinity.
          D. Detention exercised reasonably
          E. Detention for a limited time
          F. Detention occurs reasonable time after incident
          G. Policy, balance merchant’s interests to protect property and cope with pervasive problem with
             protection of suspects from false imprisonment, false arrest, invasion of privacy, etcetera.

IV.       Privilege to Arrest
          A. False arrest. Unlawful assertion of police authority resulting in restraint of personal liberties.
          B. Probable Cause. Must always have probable cause even where officer acts in good faith.

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                 1.   Lynn v. City of New Orleans Police Dept., police officer had probably cause to arrest
                      woman who had been antagonizing the officer because was obstructing his attempt to
                      arrest two suspects in a hit and run accident.
                 2.   McIntosh v. Arkansas Republican Party, state troopers had probably cause to arrest
                      political activist because reasonable person would have believed he was going to
                      cause a disturbance.
          C. Reasonable Force in relation to crime.
          D. Deadly force to prevent escape. Allowed only if 1) felony, 2) force creates no substantial
             risk to others, 3) suspect is dangerous (crime involved use or threat of deadly force or believes
             suspect will cause death or serious injury if not captured). Tennessee v. Garner, Supreme
             Court upheld declaration TN statute was unconstitutional for allowing deadly force of non-
             dangerous, fleeing suspect.

V.        Consent (counter-argument to privilege element within intentional torts)
          A. Manifest Assent. Verbal or physical, Express or Implied, Action or Inaction. Irish
             immigrant who raises her arm up for vaccination.
          B. Legal Capacity. Minor doesn’t have legal capacity to consent.
          C. Vitiated by fraud, misrepresentation, or duress.
          D. Scope of consent. During surgery, doctor may not go beyond scope of surgery or else
             potentially liable for battery.
          E. Consent in sports. Consent to risk for negligence but not for intentional torts.
          F. Policy, 1) unwillingness to intervene in private, consensual matters; 2) public health, safety
             and welfare; 3) who is in the best position to acquire the relevant information regarding the
             risks; 4) corrective justice.

I.        Basic Negligence
          A. Duty. Is there sufficient relationship between the parties to establish a duty of care?
          B. Standard of Care
                 1.   General formulae (“reasonably prudent person under the circumstance”):
                         a) Ordinary, prudent person under the circumstances
                         b) Ordinary care and skill
                         c) Foreseeability
                         d) Knew or should have known
                 2.   Economic based formulas:
                         a) Learned Hand Test. B < P * L (negligent if burden or cost to avoid is less
                            than the probability of the harm times the loss).
                         b) Cost justified level of accidents. Judge Posner extension of Learned Hand
                            test: a reasonable person would never spend more to avoid less.

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                          c) Risk / Utility Test, R.2d § 291. (prima facie negligence – benefit is
                             outweighed by the risk).
                          d) Lowest Cost Avoider. Sometimes the person who we think of as the victim, is
                             the person in the best position to avoid the accident.
                          e) But, Coase Theorem. It doesn’t really matter to whom assign liability. Absent
                             transaction costs, parties will put the resources to their highest and best use on
                             their own which will lead to the greatest social product.
                 3.    Industry Standards
                          a) Comporting with industry standards will usually demonstrate not negligent.
                          b) But, TJ Hooper. Sometimes an entire industry can be acting negligently.
                             Apply the Learned Hand cost/cost test to determine.
                 4.    Enactments (statutes and regulations)
                          a) Violation of an enactment can be treated in one of 4 ways:
                                   (1) Liability per se.  can present no defense at all.
                                   (2) Negligence per se.  can present no defense except perhaps the
                                      victim’s contributory negligence.
                                   (3) Rebuttable presumption of negligence
                                   (4) Evidence of negligence. Most common position of courts.
          C. Causation. Created an “unreasonable risk of harm.” Act or Omission.
          D. Damages
          E. Judge / Jury. Could “reasonable persons” differ on whether the conduct was appropriate?
          F. Policy,
                 1.    Efficiency. Court should attempt to put resources to their best uses possible – uses
                       which the market would dictate.
                 2.    Compensation. By itself not persuasive, because can better accomplish through
                       government programs, but idea is to make victim whole.
                 3.    Aristotle’s Corrective Justice. Try and achieve a balance between profit (injurer)
                       and loss (injured person). Easy to measure the loss but not always the profit.
                 4.    Loss spreading. Not really trying to correct injustice but at least trying to distribute
                       the cost of injuries over parties somehow related to one another. Probably better
                       replaced with insurance.
                 5.    Deterrence. Behavior affecting.
                 6.    Fairness.

II.       Possessors of Land
          A. Invitee (commercial context)
                 1.    Public Invitee - one who is invited to enter or remain on land as a member of the
                       public for a purpose for which the land is held open to the public

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                 2.    Business Invitee – one who is invited to enter or remain on land for a purpose directly
                       or indirectly connected with business dealings with the possessor
                 3.    Must surveil and inspect and take measures to prevent harm.
                 4.    Saying, “I am open for business and my property is safe for your use.”
          B. Licensee (social context)
                 1.    A licensee is “a person who is privileged to enter or remain on land only by virtue of
                       the possessor’s consent.”
                 2.    Examples: people who play football on a vacant lot with the owner’s permission;
                       invited guests.
                 3.    Must know of risk (possibly includes should have known – R.2d says “has reason to
                       know of the condition” - and, therefore, possibly must surviel and inspect) and
                       warn of risk.
                 4.    Licensee takes the premises as he finds them.
                 5.    Saying, “You may come on my property but I haven’t done anything to it beyond what
                       I have already done for myself.”
          C. Trespasser (unprivileged)
                 1.    Person without privilege to be on property. Typically must be an adult.
                 2.    No duty unless 1) trespassers constantly intruding or 2) maintain “an artificial
                       condition which involves a risk of death or serious bodily harm to persons coming in
                       contact with it,” or 3) maintain a “trap” near perimeter of the property.
          D. General standard. Do away with categories and replace with “reasonable person” standard.
          E. “Attractive nuisance” doctrine
                 1.    5 elements:
                          a) area children are likely to trespass,
                          b) possessor knows or has reason to know of unreasonable risk of death or serious
                             bodily harm,
                          c) children are unaware of the risk,
                          d) burden of eliminating the danger and utility of maintaining condition are slight
                             compared with the risk, and
                          e) possessor fails to exercise reasonable care to eliminate the risk.
          F. Policy,
                 1.    Economic. Categories of visitors emphasize the most economic outcomes.
                 2.    Predictability. Categories makes the law more stable and predictable.

III.      Control Over Third Parties (Negligent Security or Premises Liability)
          A. Negligent (duty of reasonable care under the circumstances to avoid risk of foreseeable harm)
                 1.    Can apply the Learned Hand test.
                 2.    Knew or should have known. R.2d § 448.
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           B. Foreseeable
           C. Injuries / harm proximately caused by the negligence
           D. Power to prevent / protect
           E. Relationship between the parties
           F. Third party causes harm
           G. Power based rationale
           H. Functional: prisons, schools, apartment / condominium complexes
           I.   Policy considerations, 1) limited resources and alternative uses of resources, 2) deterrence, 3)
                loss spreading, 4) power relationship, 5) relative ability to avoid accidents, 6) always a more
                direct tortfeasor – the third party.

IV.        Liability for Employee Acts
           A. Respondiot Superior. Master or employer is liable for injuries resulting from the negligent
              acts of his agent when the acts are committed within the scope of employment.
                   1.   Detour: short detour to stop for lunch is still within the scope of employment.
                   2.   Frolic: longer detour to go home for errand, etcetera is outside of scope.
           B. Negligent Hiring, Retention, or Training. An employer can be liable for the intentional
              torts of an employee if the employer was negligent in hiring or retaining the employee.

V.         Professional Standards of Care
           A. General negligence standards. Foreseeability, Learned Hand, T.J. Hooper, Risk/ Utility.
           B. Lay person or professional standard of care.
                   1.   Lay person – person has right of self determination and should be thoroughly informed
                        (nature of procedure, risks, alternatives, anticipated benefits, provide “framing” – what
                        is the significance of .001%).
                   2.   Professional Standard of Care – doctor knows what is best and occasional there is
                        therapeutic value of not informing.
           C. Traditional torts. (Versus looking for negligence) Battery or fraud.
           D. Exercise of Judgment versus Acquiring Knowledge
           E. Local v. National Rule
           F. Expert Testimony Rule. Non-specialists can sometimes testify as long as have basic degree
              and knowledge. But, will be subject to cross-examination of actual experience and

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I.         Express Assumption of Risk
           A. Exculpation clause: prospective  agrees in advance will not sue for injuries, even those that
              occur because of ’s culpable conduct.
           B. Clear (readily understood by an ordinary person)
           C. Conspicuous:
                  1.    Cannot be small print.
                  2.    Disclaimer buried within document that extols product’s features and benefits
                        probably not clear and conspicuous.
                  3.    Disclaimer under title: “Terms of Warranty” suggests a warranty not a disclaimer.
                  4.    Higher standard for consumer agreements.
           D. Full knowledge of risk
           E. Voluntary / Unequivocal intent to hold harmless by parties to agreement.
                  1.    Hulsey v. Elsinore Parachute Center,  signed exculpatory clause and then suffered
                        injuries.  took the course and was informed of all the risks which were very clearly
           F. Exceptions for public policy
                  1.    Henrioulle v. Martin Ventures,  injured by rock in common stairway of apartment.
                        Because of public interest in housing, the exculpatory clause which was small and not
                        explained was insufficient to relieve landlord of duty of care required by law.
                  2.    Six criteria to determine if clause is contrary to public policy (main points 1)
                        important public service, 2) adhesion, and 3) no buy out):
                           a) Business type generally thought suitable for public regulation.
                           b) Business type of great importance to the public – often a type of practical
                              necessity for some members of the public.
                           c) Service available to any member of the public (commercial context).
                           d) Decisive bargaining advantage of party seeking exculpation.
                           e) Use of standardized adhesion contract and no provision whereby purchases may
                              pay additional fee to obtain protection against negligence.
                           f) Purchaser placed under control of sell, subject to the risk of carelessness by the
                              seller or his agents.
           G. Policy:
                  1.    Economic Efficiency approach
                           a) Making a deal at the market clearing price which reflects that package of risks
                              and benefits.
                           b) But, court says if there is unequal bargaining power will not allow the
                              exculpatory clause.
                           c) But, party will get the same terms no matter where they go.

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                          d) But, party could always buy the insurance on their own.
                  2.   Social justice rationale
                          a) All people want this protection and might as well spread the cost over all
                  3.   Behavioral: put people on notice that these clauses must be conspicuous
                  4.   Individual justice / Corrective Justice
                          a) Redistributive mechanism similar to incremental income taxation. Take from
                             the rich and give to the poor.
                          b) But, should we allow courts to get into this business especially when: when you
                             do that you are going to louse up the market. Housing is not a bad market. All
                             people may want protection from negligence but may value other things higher:
                             the view, the location, etc. Notion is that the people who will fare the worst in
                             this area is the poor.
                          c) When should something be done by the court when should be done by the
                             legislature? Some make the argument that all forms of welfare should be
                             explicit (should have some sort of voucher system rather that judicially imposed

II.        Implied Assumption of Risk (very similar to contributory negligence & comparative fault)
           A. Hazard or Risk
           B. Basic Definition (general contributory negligence – person failed to take precautions a
              reasonable person would):
                  1.   Subjective knowledge of risk:  knew or should have known of the risk and the
                       extent / gravity of the risk.
                  2.   Voluntary: ’s act cannot have been compelled by duress, fraud, etcetera.
                  3.   Unreasonable:  acted unreasonably in choosing to confront the risk (same
                       requirement as within contributory negligence).

III.       Open and obvious
           A. Usually means  has acted unreasonably; also sometimes means  had no duty to .
           B. Court application of “open and obvious” generally means ’s claims do not merit
              consideration by jury.
           C. Glittenberg v. Doughboy Recreational Indus., Inc., danger of head first dive into swimming
              pool is open and obvious
           D. Ruther v. Robins Eng’g and Constructors, danger of working for an hour and a half on a
              feeder machine that generated hot flue dust is not open and obvious.

IV.        “No Duty”
           A. Very closely related to “open and obvious” and “implied assumption of risk.”

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           B. Sometimes  owes “no duty” to  - especially where the risk is “open and obvious.”

V.         No Negligence!

VI.        Negligence in the Workplace
           A. Economic duress or risk of losing job makes employee’s unreasonable, imprudent
              act involuntary.
           B. Disalvatore -  working over open elevator shaft and removing planks alone without his work
              buddy was contrary to policy and, therefore unreasonable and imprudent. But, employer still
              negligent because employee’s act was not truly voluntary.
           C. Arnold v. Union Oil Co. –  while working on an offshore drilling platform was injured after
              working with a hose that burst and started a fire. The  noticed bubbles forming on the hose
              and, therefore, knew of and appreciated the danger. However, the  was ordered to continue
              working by his supervisor who assured the  that there was no danger.
           D. Fireman’s Rule
                  1.    Certain employees assume the risks inherent in their employment.
                  2.    A fire fighter is barred from suing a building owner whose negligence caused a fire in
                        which the fire fighter was injured.
                  3.    Could say there is definitely and implied assumption of risk if not an express
                        assumption of risk.
           E. Policy:
                  1.    Very controversial because many would argue that the employee’s wage rate include a
                        premium to compensate for the risk.
                  2.    Who has ability to avoid the accident? Initially, the employer has more control over
                        avoiding accidents. Immediately before an accident, the employee often more
                        information and control over the accident.
                  3.    Moral principals. Do necessity and duress (the need to put food on the table) cancel
                        out the assumption of risk?
                  4.    Simplifying Doctrine. Just use a general negligence standard across the board and
                        evaluate the ’s and ’s conduct under the circumstances.

VII.       Negligence in Sports and Recreation
           A. Professional Sports
                  1.    Implied Consent
                           a) The dangers inherent in the sport are recognized by the athlete.
                           b) Turcotte – jockey’s claim that the race track was negligent in its watering and
                              grooming of the race track was denied because of ’s implied consent to certain
                              dangerous aspects of his sport.
                  2.    No Duty
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                           a) If the risks are fully comprehended or perfectly obvious,  has consented and 
                              has no duty.
                  3.    Obviousness
                           a) Maddox v. City of New York -  was a center fielder for the New York
                              Yankees who slipped on wet grass injuring himself. The court ruled that the
                              danger of falling on wet grass was obvious and part of playing the game
                              (implied consent).
           B. Recreational Sports
                  1.    Implied Assumption of Risk and No Duty
                           a) Smith v. Seven Springs Farm, Inc. – Court ruled that the  “took his chances”
                              when he choose to ski down an icy slope rather than going back to a gentler
                              slope or side stepping down to safety.
                  2.    State Statutes often bar plaintiffs from recovery in sports related activities.
                  3.    No negligence!

VI.        Informed Consent (defense to professional malpractice)
           A. Less of a defense and more of a necessary element of the tort of professional malpractice.
           B. See the layperson definition of informed consent above at 10.
           C. Defense to both professional malpractice AND battery.
           D. Policy:
                  1.    Self determination. Cardozo, a person has a right to determine what happens to their
                        own body.
                  2.    Economic. Economic analysis doesn’t necessarily work. Doctor must often disclose
                        alternative even if the statistics indicated those alternatives would not be chosen by a
                        rational person. On the other hand, there is not a large cost to explaining the

VII.       Contributory Negligence
           A. Conduct on the part of the plaintiff which falls below the standard to which he should
              conform for his own protection.
           B. Originally was a complete bar to recovery but has been replaced in most jurisdictions with
              comparative fault.
           C. Objective: No knowledge required. Versus implied assumption of risk where the plaintiff
              must have knowledge of the risk.
                  1.    Smith v. Fiber Controls -  insisted he did not know that there were moving parts
                        inside the machine in which he placed his hand causing injuries. Court held there was
                        contributory negligence because an ordinary prudent person would not have put
                        their hand in the machine.

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           D. Judge / Jury. Court will sometimes take away the contributory negligence issue from the
              jury ruling that no reasonable person could conclude that the  was not contributorily
                  1.    Voss v. United States – Court dismissed claim where  was fatally shot after
                        confronting an escaped mental patient.  was driving in his car when the patient
                        walked in front of ’s car carrying a rifle which he then pointed at .  drove around
                        a bit, became upset, ignored pleadings of his passenger, drove past a parked police
                        officer, found the patient, and then yelled a vulgar comment at the patient. The
                        patient then shot the . Court ruled there was no reasonable aspect of the ’s conduct.
           E. Contributory negligence not a defense where the ’s conduct caused the injury or harm but 
              was negligent in preventing ’s conduct.
                  1.    Hospital where ’s suicide attempt caused injuries after jumping out a window.  had
                        committed the very act which  was under a duty to prevent.
           F. Policy:
                  1.    Deter careless conduct – accident victims will be penalized where their own conduct
                        contributed to the accident.
                  2.    Intuitive fairness. Unfair to impose full liability on  when accident wouldn’t have
                        happened without ’s unreasonable conduct.
                  3.    Deter careless conduct which also threatens third parties – victim not only
                        jeopardizing their own safety but often the safety of others as well.

VIII.      Comparative Fault
           A. Replaces contributory negligence and implied assumption of risk in many jurisdictions.
           B. Compare each parties’ negligence and then reduce ’s damages based on the comparison.
           C. Different forms / models:
                  1.    “Pure” Comparative Fault -  can still be partially responsible even if  was 90%
                  2.    “Not Greater Than” Comparative Fault -  can only recover if ’s negligence is not
                        greater than ’s ( can still recover if 50% liable).
                  3.    “Greater Than” Comparative Fault -  can only recover if ’s negligence is greater
                        than ’s ( cannot recover if 50% liable -  must be at least 51% liable).
                  4.    “Gross by Comparison” Comparative Fault -  can only recover if ’s fault is “slight”
                        and ’s negligence is “gross by comparison.”
           D. Policy:
                  1.    Deterrence. Reduce accidents rates more so than with contributory negligence
                        policies because negligence is more often going to result in liability. But, may have
                        opposite affect on potential plaintiffs.
                  2.     Fairness. Only fair that shouldn’t be barred from recovery because of slight
                  3.    Systemic effects. Will result in more law suit but will also result in more settlements.
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                  4.   However, can theoretically create perverse outcomes. Motorists A and B collide in an
                       intersection. A did not come to a complete stop at the intersection but otherwise acted
                       prudently. B was drunk and driving recklessly. A sustains $5,000 in damages while B
                       sustains $100,000 in damages. The jury finds A 20% liable and B 80% liable. Though
                       A’s contributory fault was only slight (20%), A will be liable to B for $20,000 in
                          a) It may seem perverse but is in some ways appropriate. A was, after all,
                             partially responsible.
                          b) Liability has important practical results.

IX.        Functional Overview
           A.  does not fall below the standard of care in the activity (no negligence!).
           B.  falls below the standard of care (negligence!) but  acts unreasonably.
           C.  falls below the standard of care and  subjectively knows of the danger but acts reasonably
              in the circumstances.
                  1.   Gulfway General Hosp., Inc. v. Pursley
           D.  falls below the standard of care in the specific activity at issue and  acts knowing of a
              hazard in a way that is objectively unreasonable in the circumstances but because of the
              nature of an environment like an industrial workplace,  arguably did not act voluntarily.
           E.  falls below the standard of care in the specific activity at issue but arguably behaves
              reasonably toward the .

I.         Abnormally Dangerous Activities
           A. Rylands v. Fletcher
                  1.   Owners of a mill who constructed a reservoir on their land from which water poured
                       into the mine shafts of the .
                  2.   Apparently, the ’s were unable to show that the mine owner’s had been negligent.
                       However, from the record it appears they were! Old mine shafts had been improperly
                       filled with rubbish.
                  3.   Court held for  saying the ’s made “a non-natural use” of their land and, therefore,
                       acted at their own peril.
                  4.   No matter how responsible or careful the defendant may have acted, defendant is
                       liable for any damage which results.
           B. Rs. 2d § 520
                  1.   Sets out a 6 prong factor analysis for ultra-hazardous activities
                          a) Risk was great
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                          b) Harm would be great
                          c) Can’t be prevented by due care
                          d) Unusual occurrence
                          e) Activity was inappropriate to the place it took place
                          f) Value to the community is not great to offset the risk.
                  2.   Some of them are akin to the factors in the negligence test
                  3.   Issue with the § 520 is what weight to give each of the factors. The laundry list gives
                       a lot of discretion to the judge. Difficult for the trial judge to apply all of these
           C. Courts apply strict liability with great caution! Generally, only liable if there is negligence!
           D. Policy (why impose liability on someone who is without fault?):
                  1.   Fairness. The party who benefits from the risk creation should bear that risk.
                       Fletcher’s “non-reciprocal risks.”
                  2.   Loss spreading.
                  3.   Economic efficiency. Usually cuts against imposing strict liability. As Posner pointed
                       out in the case involving the rail yard chemical spill, imposing strict liability might
                       actually increase the risks of accidents. The shipper would be forced to reroute
                       around cities forcing the use of longer routes or poorer track.
                  4.   Moralizing deterrent. “Technology forcing.”

II.        Private Nuisance
           A. Nuisance. Another’s conduct is harming a possessor’s interest in land.
                  1.   Interference with use and enjoyment
                  2.   Spectrum of culpability
                          a) Intentional and unreasonable, or
                          b) Unintentional but actionable as negligence, recklessness, or strict liability
                             (abnormally dangerous activities)
                  3.   Unreasonableness
                          a) Gravity of harm outweighs utility of conduct, or
                          b) Compensating for the harm would make continuation financially unfeasible.
                  4.   Factors
                          a) Nature of the activity. Social judgment of activity (tennis court v. brothel).
                          b) Gravity of harm to .
                          c) Frequency of occurrence
                          d) Comparative economic interests
                          e) Environmental / circumstantial context. Normalcy of use – hog farm in city not

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                          f) Priority in time. Did  “move to the nuisance?”
                  5.   Remedies
                          a) Damages
                          b) Injunction
                          c) Injunction with ’s paying off defendants.
                  6.   Policy:
                          a) Economic balancing
                                  (1) “Best use.” What will produce the most economic outcome?
                                  (2) Externalities.  should be forced to compensate  for negative
                                     consequences to ensure  has internalized all costs – including social
                          b) Extortion.  can extort money from  beyond ’s costs.
                          c) Wealth distribution. Vacationers may believe polluter is harming them but
                             closing the polluting plant would harm the workers who view the pollution as a
                             necessary evil.
                          d) Least cost avoider.  might be able to avoid the harm cheaper than .
           B. Trespass
                  1.   Invasion of another’s exclusive possessory interests in land.
                  2.   Usually physical entry on land or when push or hurl physical objects onto land.
                  3.   Even invisible particulates / gases can constitute trespass.
                  4.   Absolute liability – no defense for reasonable care.
           C. Rylands Doctrine
           D. Negligence

III.       Public Nuisance
           A. Interference with a right common to the public.
                  1.   Obstruction of a public highway
                  2.   Keeping of diseases animals
                  3.   Storage of high explosive in urban area
           B. Distinguished from private nuisance because is interference with a right open to all – public.

IV.        Product Liability
           A. Personal injury or property damage. No recovery for economic loss.
           B. Three types:
                  1.   Manufacturing Defect

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                        a) Easy idea to understand because the notion is that the common terminology is
                           of a “flaw” – what we ordinarily think of as a defect.
                        b) A hairline crack in a coca-cola bottle. Had anyone known of the crack in that
                           one bottle – no one would have let that bottle out.
                        c) Would say that the bottle did not conform with its design.
                                (1) Pay even though used the best standards (industry customs or even state
                                   of the art technology).
                 2.   Design Defect
                        a) Not always a distinct line between manufacturing defect and design defect.
                           Sometimes manufacturing defects are because of a process design defect.
                        b) Design defect is a safety problem in a product that is made just the way that the
                           maker wanted it to be made. Unlike flaw in a coke bottle, or metallurgical flaw
                           in rod in car’s suspension, say, “look at this product. Is this the way you wanted
                           it to be?” Then, the answer is, “yes.” Just the way it was intended.
                        c) Definitions:
                                (1) California Supreme Court: defect is a “defect.” Tautological definition.
                                (2) R.2d § 402a: product is defective when it is in an “unreasonably
                                   dangerous condition.”
                                (3) Dean Wade’s catalog
                                        (a) Usefulness and desirability of the product
                                        (b) Safety aspects of the product - likelihood it will cause injury and
                                        seriousness of the injury
                                        (c) Availability of substitute products
                                        (d) Manufacturer’s ability to eliminate the unsafe character without
                                        impairing its usefulness or significantly increasing its cost
                                        (e) User’s ability to avoid danger by exercising care
                                        (f) User’s anticipated awareness of the inherent dangers
                                        (g) Feasibility of loss spreading by the manufacturer.
                                (4) Barker Test. Two pronged test:
                                        (a) Consumer expectation test: what is the expectation of the
                                        ordinary consumer about this product?
                                        (b) Alternatively if first test not met, risk-utility test (cost – benefit
                 2.   Failure to Warn
                        a) Was there a duty to warn?
                        b) Was the warning adequate?
           B. Rationales:
                 1.   Conduct control (deterrence).

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                          a) If make it more expensive to do something (sell / make a product), will get
                             fewer defective products.
                          b) Couple of ways courts see deterrence.
                                 (1) Efficiency based.
                                 (2) Moralizing deterrence. A judicial perception that the accident level for
                                    that product needs to be brought down even if it is brought down below a
                                    level the market would actually support.
                 2.   Fairness. Not entirely vaporous.
                          a) Individualized corrective justice between the parties.
                          b) Distributional justice (Aristotle). “Spreading” fairness.
                                 (1) Notion of risk spreading and loss spreading (are two separate things).
                                 (2) If all people benefit and one gets hurt, should try and achieve a general
                                    judicial justice to compensate the one person.
                 3.   Proof Problems.
                          a) Over comes the proof problems in negligence cases. Instead of saying that
                             negligence is the only explanation, simply say that it isn’t necessary to say is
                             negligence (as in res ipsa loquitor).
                 4.   Apportionment Upwards point
                          a) A lot of concern (even today) about imposing strict liability on retailers or
                             wholesalers that don’t have anything to do with the design or manufacture of the
                             product. Nevertheless, many courts do impose this liability.
                          b) Is a way of reaching upwards through the chain to eventually reach the
                             manufacturer. Puts onus on the seller to know who the retailer is (maybe even
                             set up indemnity agreement) and kick the liability upward.
                          c) Also, many retailers are very large themselves that are sometimes much bigger
                             and powerful than the small producers. They are the appropriate place to put the
                             liability because they have the power to change things.
                 5.   Product Promotion
                          a) Interstitial response to they way products are sold and promoted.
                          b) Courts recognizing the tremendous impact of advertising on the consumer
                             (“bewitched and bewildered” by the way products are displayed).
                          c) Image created by the seller of the product (usually quite willfully) of the
                             product’s safety and reliability.
                          d) This image trigger the product sales.
           C. Theories:
                 1.   Tort representational theory
                          a) Specific statements by the seller on which the purchases can be said to have
                             specifically relied.

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                          b) High end (most culpable) is fraud. Statement that is made by the maker
                             knowingly or at least reckless with an intention that the buyer rely. Buyer does
                             indeed rely to his detriment.
                          c) Negligent misrepresentation.
                                 (1) Representation made without taking due care.
                          d) Innocent misrepresentation.
                                 (1) § 402b.
                                 (2) Not many courts have adopted it specifically. Many courts have done
                                    so implicitly though.
                  2.   Contract theory
                          a) Breach of express warranty.
                          b) Implied fitness for a particular purpose.

II.        Necessity – privilege of a certain activity may be extended in certain cases of necessity thus
           rendering an otherwise unprivileged action to be privileged under the circumstance. Those
           circumstances are generally when the injury caused will be less than the injury prevented. But, the
           actor is nevertheless liable.
           A. Deliberate or Intentional
           B. Reasonable. Actor is not negligent and has acted reasonably under the circumstances.
           C. Liable. Actor is liable despite no fault.
           D. Rationales
                  1.   Fairness (contract theory of unjust enrichment).
                  2.   Economic theory doesn’t really apply (Coase theorem)
                  3.   Negligent cost/cost (L. Hand) theory doesn’t apply.

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