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					I. INTENTIONAL TORTS

Intentionally Inflicted Injury
1) Test for Intent:
    a) Desire/Purpose Intent: actor desires to cause the consequences of his act or
    b) Knowledge/Substantial Certainty Intent: believes the consequences are substantially certain to result from the
        act; even if that end act is not desired
        i) Garrett v. Dailey; chair pulling case
2) Intent
    a) Not intent to harm, e.g. battery but intent to cause offensive or harmful contact
    b) eggshell/thin skull doctrine; doesn’t matter if D knows of special fragile condition; D is still liable; take the P as
        you find them (except intentional or reckless infliction of emotional distress)
        i) need not be foreseeable (not negligence); presumed to have intended consequences of tort; proof less
             important
             (1) E.g. even though intending nothing more than a practical joke; can’t ―dress up intent in negligence
                 clothing‖; Piggy back wool over eyes case, touching not an accident, therefore not negligence
             (2) A boy kicking another in a school room causes serious injury; pulling chair out when someone is about to
                 sit
    c) POLICY: deter breach of peace; must keep hands to himself ―didn’t mean to harm irrelevant‖
    d) BUT if malice proven, possibly punitive damages
3) Mistake
    a) Mistake in good faith and reasonably so and unavoidably does not by itself serve to absolve D, so long as the
        result was intended; E.g. shooting another’s dog, thinking it was a wolf; bullet in the animal was intended;
        trespass to chattel
        i) Privilege exception: reasonable mistake; socially important interest
4) Insanity
    a) Policy considerations take precedence over fault principle; if capable of entertaining intent to injureliability;
        regardless of whether the insanity produced the intent
    b) Injured party shouldn’t bear the loss; if D is financially able should pay the loss
    c) Efficiency principle; unwise to expend resources attempting to resolve legal question mired in uncertainty or
        complexity e.g. as in criminal law
5) Transferred Intent
    a) D liable if: If D acts intending to cause any of the five ―trespass‖ torts and injury occurs to that person or to
        another person, he intends to commit transferred tort as well
        i) Battery; Assault; False imprisonment; Trespass to land; Trespass to chattel; E.g. throwing erasers across
             classroom in horseplay, accidentally hits third party
    b) Can transfer another tort to same person or same tort to another person
6) Principle and Agency
    a) Respondeat Superior: ―let the master answer‖; principle responsible for actions for acts of the agent if
       within the scope of employment
       i) Western Union love and pet case; acting in own interest
    b) relation of agency does not depend on express intent; can be an implied intention to create the
       relationship through words, conduct, circumstances;

Battery
1) Elements of Battery
   a) Affirmative Act/Volition
        i) No unconscious acts; no reflex actions; though incompetents still capable of volitional act (insanity)
        ii) No battery for inaction; no Good Samaritan law
   b) Harmful or offensive touching: no “physical” injury necessary
        i) Test: harmful or offensive to reasonable person
            (1) Harmful: any unconsented alteration of a structure or function of the human body, even if the change does
                not affect the person’s health
            (2) Offensive: would offend a reasonable person’s sense of dignity
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               (a) child vomited in cab, cab driver touched child; neither offensive nor harmful
      ii) No Incidental contacts of ordinary everyday life
           (1) Some bodily contact inevitable (crowded trains); one knowingly runs certain risks
           (2) Must consider time and place (circumstances)
               (a) Peculiar sensitivity/susceptibility to injury if unknown to D, ―harm‖ or ―offensiveness‖ not reasonable
               (b) Assisting an intoxicated person (no B)
                    (i) Contact with AIDS patient where risk is low (no B)
      iii) Indirect contact; intent to touch person or intent to cause contact with something else (yes B)
           (1) Responsible for putting the chain of events into motion
               (a) Pulling out chair where someone intended to sit; substantially certain will cause contact with ground;
                    Horseplay involves chasing pedestrian in an attempt to ―rope-in‖ (batter) caused contact with glass
                    door; Driving truck fast knowing P will be thrown from bed; Whipping on horse on which P sits
      iv) No knowledge of contact necessary at the time
           (1) Still a battery if P is unconscious or asleep and only learns of contact later
   c) To a person of ordinary person or something attached or closely associated with the person
      i) With a person’s body or something universally regarded as part of the person; camera, cane, hat, clothing, etc.
   d) Causation
      i) But for Test: But for D’s affirmative, voluntary act, P would not have been touched
      ii) Direct or indirect results: indirect: set in motion the force that brought about the actual touching (i.e. setting a
           trap; didn’t directly touch, wasn’t around when it happened; pulling chair out from under P(didn’t actually
           touch
   e) Intent: Not intent to injure or harm; intent to cause touching or contact
      i) Desire/Purpose Intent
      ii) Knowledge Intent: Substantial Certainty (or transferred intent)
           (1) ―Didn’t mean to harm‖ not a defense; only joking, horseplay, etc.
           (2) Actual injury need not be foreseeable if intent to cause contact (and all other elements of battery satisfied)
           (3) Administering first aid despite the objection of victim (yes B)
           (4) Surgeries with lack of consent, (yes B)
   f) Lack of Consent
      i) No implied consent despite express assertions to the contrary (baby and ―heroic measures‖ exception; despite
           objections of parents)
      ii) Certain circumstances an expressed objection or sensitivity to contact can render normally acceptable contact
           a battery
           (1) E.g. a patient because of religious beliefs refused to be touched by a male nurse
      iii) Good Intentions and Important Goals not a defense
           (1) No Good Samaritan defense; motives irrelevant
2) Damages
   a) Compensatory
      i) Actual losses: physical and mental harm
      ii) POLICY: If elements of battery shown, irrelevant that resulting injuries are more extensive than one would
           reasonably expect; no forseeability clause; fair that D should assume risk; eggshell case
   b) Nominal
      i) No losses; instead to vindicate technical right; deterrence
   c) Punitive
      i) Motives considered: malice; highly culpable D
      ii) POLICY: deterrence; severe punishment
   d) Professional discipline for attorneys (ethics)

Assault
1) Elements of Assault
   a) Volitional movement of some part of the body; however slight; threatening gesture
        i) Words alone not enough
            (1) Western Union ―love and pet‖
        ii) Exceptions:
            (1) surrounding circumstances require relying on words alone, e.g. blind person, coming up behind someone

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            (2) D knows P has certain sensitivities
    b) Intent: D intents to:
       i) To cause apprehension of contact or offensive touching on P or third person
            (1) Test: purpose/substantial certainty (or transferred intent)
    c) Reasonable Apprehension of Imminent Battery(imminent harmful or offensive touching to P’s own person)
       i) Put P or third person in apprehension of an imminent harmful or offensive touching
       ii) Reasonable apprehension (not necessarily fear) that battery will occur if no future intervention and
            (1) Some exception with family members of assaulted P
            (2) Must be imminent, no significant delay; proximity in time and space; e.g. so close to striking distance that
                D can reach P almost at once
                (a) Words can nullify or intensify assault despite bodily gestures
                    (i) ―Were you not an old man, I would knock you down‖ (no A)
                    (ii) ―I have a great mind to hit you‖; more imminence, but need to look at the context; (possible A)
                    (iii) Reaches into pocket and says ―I need a comb‖ vs. ―I’m going to kill you‖
       iii) apparent present ability to carry about the threat; (issue for fact finder)
            (1) P must be aware at the time thereof; unlike battery
                (a) Can be a mistaken belief at the time
                    (i) P believed gun is loaded when it wasn’t (yes A)
                (b) Mistaken assumptions can’t turn into assault though:
                    (i) P believed a loaded gun was unloaded (no A)
                (c) Can’t be hearsay; no assault for third person
                (d) Lack of fear or ability of self defense does not prevent from being actionable (yes A)
                (e) DEBATE: reasonableness of reaction?
                    (i) E.g. On Halloween it is reasonable to see ghouls, etc.
                    (ii) Should D know of P’s sensitivity?
       iv) POLICY: loss of mental tranquility; deter breach of peace
    d) Causation
       i) But for causation

Tort of Outrage: Intentional or Reckless Infliction of Severe Emotional Distress
1) Instances that allow for Recovery for Severe Emotional Distress
Can involve Fright and shock; humiliation; depression; difficult to measure
   1) Parasitic Damages
        a) Tort creates a physical injury coupled with emotional damages
        b) Compensatory damages for physical and emotional injury
   2) Torts without physical injury
        a) Invasion of privacy, false imprisonment, defamation, slander, etc.
   3) Negligent Infliction of Emotional Distress
   4) Intentional or Reckless Infliction of Severe Emotional Distress/Outrage Tort
2) Elements of Intentional or Reckless Infliction of Severe Emotional Distress: extreme or outrageous conduct
   (shocks the conscience), intentionally or recklessly (severe injury)
   a) Intent to cause emotional distress or recklessness with respect thereto
        i) Substantially certain that distress would occur
             (1) Counter argument: videotaping having sex with partnerintended for private use; not intended to get
                 out
        ii) Motive of D taken into an account
             (1) Knowledge of sensitivity; e.g. child, incompetent; invalid
        iii) Recklessness: utter disregard of the consequences that may follow and results in severe emotional distress;
             conscience indifference to a known risk of serious harm; or extreme lack of care
        iv) No transferred intent
        v) No eggshell doctrine; unless D knew of fragile condition
   b) Extreme and outrageous conduct
        i) must go beyond all possible bounds of decency
        ii) and to be regarded as atrocious and utterly intolerable in a civilized community
             (1) no petty insults, rough language, acts that are inconsiderate or unkind; no abusive language
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      iii) Exception: Monopoly Status
           (1) Common carriers, innkeepers, and utilities (historically enjoyed monopoly status)
           (2) Higher standard of care
           (3) Applies to patrons utilizing its facilities for gross insults which reasonably offend them, inflicted by the
               utility’s servants while otherwise acting within the scope of their employment
   c) Causation
      i) Must prove D’s extreme and outrageous conduct in fact caused severe emotional distress
   d) Results in severe Emotional Distress
       i) convincing proof intensity and duration of mental distress; actual damage
            (1) no recovery where because of general insensitivity, a stoic disposition, or uncommon courage the
                P was not significantly affected by what the P did
       ii) where the distress is so severe that no reasonable person could be expected to endure it;
            (1) such as evidence of physical consequences; interrupted work or social interests, need for
                professional help, pecuniary losses
       iii) POLICY: P must be expected and required to be hardened to a certain amount
3) In the context of a domestic relationship/domestic abuse (marriage)
   a) Feltmeier v. Feltmeier
       i) Ex-wife sues ex-husband for past abuse
       ii) The court recognize a cause of action for intentional infliction of emotional distress in the context of
            marriage; POLICY issues:
            (1) Behavior utterly intolerable in a civilized society trumps policy concern for marital harmony
            (2) Burden of proof on bars excessive and frivolous litigation
            (3) Tort for compensation not redundant because generally no compensation for domestic abuse (not
                taken into account when distributing property in a divorce)
                (a) Leg recognized big problem; penal statute Domestic Violence Act; assume that legislature
                    would want to include a civil cause of action (presumptuous distinction; courts will
                    frequently do this); Questioning:
                (b) Should private cause of action be construed from criminal statute that does not specifically
                    outline a civil cause of action: concerns:
                    (i) Is the P within the class of people that the legislature wanted to protect with criminal
                         statute? YES
                    (ii) Type of harm that the statute intended to prevent? YES
       iii) Statute of limitations: traditionally runs when harm occurs; no stale claims
            (1) Continuous tort: statute of limitations runs at incidence of last harmful act
                (a) V. separate incident, separate cause of action for each
                (b) V. Discovery rule does not apply: a cause of action accrues, and the statute of limitations
                    period begins to run when the party seeking relief knows or reasonable know of an injury that
                    it was wrong
            (2) Intentional infliction of emotional distress: based on a chain of events; need to show repetition of
                behavior to raise the conduct from offensive to outrageous
       iv) No fault divorce; release not binding for future claims
            (1) Can’t release future tortuous actions and can’t forgo legal protection
            (2) Courts suspicious of releases; can’t be too vague, too general especially of parties unequal
                bargaining power (no boilerpoint language; adhesion contract-party had to sign because no
                bargaining power; make sure parties know what they are getting into to); can’t give a right to
                batter and assault
2) Bystanders and Third Party Plaintiffs
   a) daughter’s claim arises out of witnessing another batter her father
       i) Cause of action for third party intentional infliction of emotional distress; whether a third party or
            bystander is able to bring a cause of action for intentional infliction of emotional distress?


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            (1) Intent: intend to cause emotional distress and know she was present (substantially certain that
                harm would occur based on nature of harm and relationship between third party and
            (2) Reckless intentional infliction of emotional distress; standard: deliberate disregard of a high
                degree of probably that severe mental distress will occur
False Imprisonment
1) Elements:
   False Imprisonment when: D intending to confine P or another within boundaries fixed by D that so
   confines P and P is conscious of the confinement or is harmed by it
   a) Unconsented
       i) Not within scope of consent (can partially consent)
   b) intentional
       i) purpose intent to confine or substantially certain that acts will confine(or transferred intent)
   c) confinement within fixed boundaries
       i) Not just freedom of movement or restraint or disturbance; more than a mere loss of power
   d) Based on P’s unlawful use of force, threats
       i) Words alone not enough; no subjective determination of false imprisonment
       ii) No economic threats; e.g. ―stay or you’re fired‖
       iii) No future threats: must be threatening immediate application of force to P’s person to members of
            P’s family, or to P’s property
            (1) D accuses P of theft; D threatens to call the police if P leaves; not enough
   e) or unlawful assertion of legal authority
       i) arrest or threat of arrest without privilege, probable cause
            (1) e.g. P refused to produce license when cop approached P in violation of city’s ―dog leash‖
                ordinance; officer arrested P; P wasn’t in car, so no probable cause to demand driver’s license;
                false arrest because police officer has the privilege of arrest under certain circumstances only;
                was not arresting for violation of ―dog leash‖ ordinance
       ii) probable cause or reasonable suspicion and subsequent conviction bars false imprisonment and false
            arrest
            (1) possible to bring a claim for excessive force or unreasonably delay in bringing the arrestee
                before a magistrate
       iii) Falsely informing an accident victim that the law requires the victim to complete a report before
            leaving the scene
   f) No reasonable means of escape
       i) Without threat to harm to person or property
       ii) Without encountering D
   g) Victim must be aware of or be harmed by confinement
   h) Can be a brief period of time
       i) Can still sue for right nominal damages
2) Defenses
   a) cult deprogramming cases
       i) Daughter (P) kidnapped for two days; resisted programming, then demeanor changed completely; P
            returns to cult and claim false imprisonment
       ii) Consent after the three days ok?
            (1) Holding: Various defenses offered for rationale:
                (a) P waived her right to claim false imprisonment through later assent
                (b) Lack of capacity to consent
                (c) De minimus argument: no harm, no foul; No meaningful deprivation of personal liberty
                (d) POLICY: Public necessity; society has a compelling interest in intervention for the greater
                    good;: Parents had a privilege (private necessity) to engage in an otherwise tortuous conduct;
                    engage in lesser harm to prevent greater harm from damage
            (2) Waiver to consent rationally sound under the circumstances? Rationale may not hold water
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              (a) Theory of statute of limitations says no; P has the right to bring a claim within a certain
                  period of time
              (b) P was 21 years old; Hypo: if P was 10 years old, less compelling case for false
                  imprisonment; a minor has no authority to consent
              (c) Freedom of expression
              (d) Majority specifically tailored because a cult, not an established religious institution

Trespass to Land:
1. Elements:
   a) Trespass to land is actionable if D:
      i) Intentionally enters the land of another or
      ii) causes a thing or third person to enter the land or
      iii) remains on the land or causes someone or something to remain on the land after the privilege
           to remain has expired or
      iv) fails to remove from the land something he/she has a duty to remove
   b) Causation: “But for” Test
   c) Intent:
      i) Purpose/substantial certainty to enter on, over, or under land, cause entry or remain (or transferred
           intent)
      ii) Motive or erroneous belief that he has a right to be there is no defense
   d) Damages:
      i) Liability attaches even if no harm
      ii) Compensatory damages and nominal damages for intentional intrusion if no actual damage
      iii) E.g. Daughter broke in to step mother’s house and stole coin collection after father died
           (1) Compensatory damages:
               (a) Return coins
           (2) Consequential damages: damages must be natural and proximate result of trespass
               (a) No damages for attorney’s fees; claim is regarding ownership not proximate result of
                   obtaining coins
               (b) No recovery for changed locks after a break-in for as a result of severe emotional distress
                   arising out of break-in
               (c) If P had claimed severe mental distress and shown proof, there might have been
                   consequential recovery
           (3) Nominal damages: public declaration of public right
               (a) Mistake not a Defense
           (4) Occasionally Punitive Damages:

Trespass to Chattel v. Conversion:
1) Trespass to Chattel: relatively minor interference in P’s right; D intentionally interferes with chattel by
   physical contact of dispossession; courts might say if no damages, no trespass to chattel
   a) Elements: (Restatement) trespass to chattels actionable if:
      i) P dispossess the other of chattel or
      ii) The chattel is impaired as to its condition, quality, or value or
      iii) The possessor is deprived of the use of the chattel for a substantial amount of time or
      iv) Bodily harm is caused to the possessor, or harm is caused to some person or thing in which the
           possessor has a legally protected interest
   b) Taking not necessarily enough; must interfere with rights in some way
   c) Intent to affect the chattel
   d) CompuServe Inc. v Cyber Promotions
      i) P attempted self help measures to avoid D’s spam, but D found a way around firewalls, which in turn
           caused further damage to P
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       ii) Damages to reputation and good will
       iii) Court granted preliminary injunction as equitable remedy hard to compute damages or damages
            would not be enough; ancient form of recovery; applies new immerging technology to Restatement
   e) Remedy: actual diminution in its value of chattel caused by the interference; sometimes loss of use;
       compensatory or nominal damages
       i) Split in the courts: typically must be some damage to property interest, can’t be a mere taking for a
            short period of time
2) Conversion: more serious intrusion; intentional exercise of dominion or control over a chattel which so
   seriously interferes with P’s right that D is required to pay for the chattel (forced sale, P gets money
   damages
   a) Elements:
       i) D exercises dominion and control over P’s chattel
       ii) Self Help: Demand for Return and Qualified Refusal exception:
            (1) P must demand return and demand must be refused by D; unless useless to ask; theft; etc.
            (2) No conversion if qualified refusal; demand must be reasonable: goods readily accessible,
       iii) Bonafide purchasers: protected from theft ; (thief has no right of title); but not necessarily protected
            if victim of fraud (some consent)
   b) No Duty for victim to exhaust all possible means to recover chattel
       i) Car dealers taking customers keys; symbol of car- got full value of car, as well as punitive damages
            because known practice in the industry
   c) Must have property interest:
   d) Intangibles:
       i) Originally conversion was a remedy for the taking of lost goods; did not include intangibles
       ii) E.g. trademarks, internet domain names
            (1) Theory of Merger in a Document (Restatement, strict rule): a right to the immediate possession
                of the chattel and the power to acquire such possession is represented by the document or when
                an intangible is represented by the document, which is regarded as equivalent to the obligation
                e.g. stock certificate: evidence of something out there of intangible value
                (a) Kremen; sex.com domain name given away
                    (i) Domain names stored in electronic doc; likened to torching file cabinets v. hacking into
                         computer; tangential connection to merged doc
                    (ii) Gave away name based on forged letter; e.g. giving away stock based on same
                         circumstances
                (b) Some courts still have strict interpretation of ―merger in document‖ e.g. must be paper, etc.
   e) Conversion of human tissue/body parts:
            (1) Must establish an actual interference with ownership or right of possession
   f) Remedy: market value of goods at time and place of conversion; P can ask the court for a forced sale of
       property from the rightful possessor to the converter;
       i) Unmarketable and Irreplaceable items: special value (original cost and condition at time and place of
            loss)
            (1) Replevin: original chattel and incidental damages; e.g. art theft
       ii) Usually no sentimental value
   g) Ethics: Treatment of Client’s Property; pg 126

II. DEFENSES & PRIVILEGES
Even if P has succeeded in proving elements in prima facie case; D escapes liability…
1) Consent: some indication on the part of the P suggesting that there is consent
    a) Consent in Fact/Actual Consent: P is willing that the conduct (not necessary consequences) occur
       i) Capacity and Scope: requires mental ability to appreciate nature, extent and probable consequences
           of the conduct consented to e.g. P consents to drinking, but not to drinking until death (esp pouring
           liquor down throat; P can’t even stand; lacks capacity to consent)
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       ii) Minors: no capacity
   b) Apparent Consent: either words or conduct would suggest that P has consented and are sufficient to
       create a privilege for D to act in light of the apparent consent, even if P’s actual (but undisclosed) state
       of mind was to the contrary
       i) Woman vaccinated on ship; held out arm; waited on line for immunization ; privilege for the doctor
            (1) Opposing argument: consent not valid if under duress
            (2) Possible immigrant status, power of doctor, etc.
       ii) Man says he’s going to punch P; P does nothing; reasonable person would not assume consent to
            punch
       iii) BUT D announces kiss that is unwanted by P sitting on a park bench in the moonlight; reasonable
            person would assume consent
       iv) Giving consent for entire neighborhood to use backyard even though only really intended for sexy
            next door neighbor
   c) Implied Consent: legal fiction; courts indulge in absence of consent (either actual or apparent) to
       justify desirable conduct which would otherwise be tortious
       i) parents denied consent to resuscitation of newborn baby; hospital claimed it was the policy to decide
            on the spot if resuscitation was necessary; no way to determine informed decision until they saw the
            baby;
       ii) Implied consent based on emergent condition; life or death circumstances: if not treated
            immediately, death will result
       iii) Parents don’t have an absolute right to make decisions about their children; state’s role as parens
            patriae gives superseding authority to intervene
   d) Consent given because of Mistake: if there is a mistake that is material enough that it will play a part
       in the decision making of P, the mistake or misrepresentation invalidates consent.
       i) Doctor allows friend to help/assist patient undergoing labor
            (1) Consent was based on a mistake; misrepresentation of friend as assistant to doctor or med
                student to help in private matter (giving birth)
2) Self Defense or Defense of Others: Privilege to prevent against imminent apprehension of a battery if
   force is reasonable force under the facts
   a) Privilege to assault, batter, falsely imprison based on self defense and others (and/or property)
   b) Force must be reasonable:
       i) P is a young, large athlete who threatens older smaller man; In self defense, D fires ―warning shot‖
            that actually hits P
       ii) Use of deadly force: must claim that D reasonably feared for his life
            (1) D asked P to leave, but he refused
            (2) Duty to retreat; no duty if occurs at own place of business (or home); West/South: no duty to
                retreat ever!; North/East: duty to retreat (exceptions home and business)
   c) Too much force: self defender can become the aggressor
   d) Mistake about Need for Self Defense
       i) Reasonable mistake about degree of force doesn’t destroy privilege of self defense;
       ii) However mistake in concluding that intruder is not acting in the exercising of superior privilege
   e) Defense of Others:
       i) Burden of the mistake; if mistake;
       ii) defender can become the aggressor
3) Privileges Relating to Property
   a) Defense of Property:
       i) Privilege prevents D from being liable; renting out an apt believing a potential renter is an
            intruder; locking them in and calling the police (possibly no false imprisonment)
       ii) Defense/use of force must be reasonable:
            (1) Setting up a spring gun to protect property unreasonable
                (a) Policy: spring gun has no discretion; life is more precious than property
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           (2) Although property owners have a right to protect their property, they can’t set up traps that
               would unreasonably harm someone; not reasonable for trespasser to expect trap
           (3) Use of force must be proportionate
      iii) Law frowns on deadly force in defense of mere property
   b) Recapture of Chattels/Recovery of Property
      i) Burden of mistake;
      ii) Fresh pursuit
      iii) Requires demand for property prior to attempt to recapture
   c) Detention for Investigation
      i) Privilege protects from reasonable mistake
           (1) Store owner must act within reasonable bounds: circumscribed; depends on proximity of time
               and place; e.g. when someone has departed from the store must be reasonable
           (2) NY General Business Law shoplifting statutes: sometimes more definite; reasonable time is
               determined by statute
               (a) Reasonable matter, reasonable time, reasonable grounds
               (b) Defense for defamation action
           (3) Common law was extended because of modern methods of marketing goods
4) Necessity: Public and Private
   a) Public necessity: if action in good faith to prevent further harm, is D liable for damages;
      i) no hesitation to allow to salvage goods before house is destroyed; hesitation would render the
           destruction of the house useless; innocent third party’s property is destroyed
      ii) Individual rights of property destroyed gives way to higher laws of impending necessity
      iii) Necessity must be clearly shown; appeared at the time to be
           (1) Property owner’s judgment is clouded; no requirement of consent of property owner
           (2) Privilege not necessarily vested only in the public official; also a right open to private citizen
           (3) Doesn’t matter if home owner has insurance or not; no compensation for public necessity
   b) Vs. “taking‖ clause under federal and state constitution; no condemnation without just compensation
      i) Arms suspect enters P’s house, cops cause damage in attempting to apprehend suspect
      ii) City can’t defend on grounds of public necessity; city taxpayers is better able to allocate the loss;
           officers though can not be individually held liable
      iii) Notions of fairness and justice
   c) Conflict: Tort and Public Necessity v. Taking (Constitutional law) minority rule:
      i) Strict tort remedy: public necessity; complete defense, no compensation
      ii) vs. taking; protection under the constitution; just compensation; novel way of getting compensation,
           of drawing the line; courts have a fair amount of discretion; convenient for court to use the taking
5) Private Necessity: One has a right to protect private interest, but also held liable to compensate for
   damages (if deliberate action); must pay for any damage caused
   a) Boat docked to P’s dock during a storm; D reattached lines to boat to prevent it from drifting away in
      storm; boat caused damage to dock by slamming up against it during storm
      i) Storm caused by ―act of God‖ not D’s wrongful acts; BUT private necessity of protecting property at
           the expense (reattached lines to protect property interest in the boat)
      ii) Still liable for damages
   b) Boat docked to a dock during storm to protect family and property; D unmoors boat, claims trespass;
      boat drifts off family is injured
      i) Private necessity as a defense to trespass; preservation of life! Dock owner must allow the trespass;
           (1) Property interests give way to higher laws when life and limb at issue
           (2) Hypo: P lights fire on dock to warm family during the storm; fire spreads destroys dock; must
               pay for the damage
6) Wrongful Conduct:
   a) No cause of action or recovery available for injuries directly resulting from unlawful conduct of a
      serious, egregious nature
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           (1) No comparative negligence claim; serious and egregious nature of conduct; court writes in
               exception to comparative negligence claim
7) Authority of Law
   a) Ppt
   b) Extension of privilege
   c) Police officer asks for assistance; individual can under those circumstances be engaged in intentional
      tort and not be held liable; everything viewed under lens of reasonableness
8) Discipline
   a) Parents and those in locus parentis such as teachers can use reasonable force to discipline
9) Justification
   a) General privilege that can appear in any context when the D’s intentional tort is excused (Sindel school
      bus driver falsely imprisons students to drive them to the police station)
      i) Take into account need to protect persons and property
      ii) Duty to aid in apprehending wrongdoers
      iii) Manner and place of the occurrence
      iv) Feasibility of other alternative courses of action.


III. DAMAGES
Introduction:
1) Maximum Recovery Rule: allows for the review of jury awards; directs a trial judge to determine
    whether the jury verdict exceeds the maximum amount which the jury could reasonably find based
    on the weight of the evidence:
    a) Remittitur: discretion to order a new trial if it finds the jury’s verdict not to be supported by the weight
        of the evidence; the judge may reduce the verdict to the highest amount a jury could have properly
        awarded based on the weight of the evidence; if P refuses to accept: new trial
    b) Additur: allows a court to award a court to award the P a new trial on damages unless the D agrees to
        pay a larger amount than the jury awarded; only if the award is against the weight of the evidence
    c) POLICY: Protects the constitutionally protected role of the jury as finder of facts AND prevents the
        predilections of the judge from infecting the jury’s determination
2) Collateral Source Rule: P’s recovery from D tortfeasor should not be reduced if P received
    compensation from a source wholly independent of the D such as:
    a) insurance payments; gratuitous wages; disability; veterans’ benefits; services donated by family or
        friends
    b) POLICY:
        i) Encourage insurance coverage: compensate those who have coverage as well as those who don’t
        ii) Deterrence: D should not benefit from P’s foresight in paying insurance premiums
        iii) No real windfall or ―double compensation‖
             (1) Insurance company often regains recovery (subrogation and refund of benefits); attorney’s fees
                 on contingency fee basis;
3) Avoidable Consequences Rule: P must take reasonable action (due care) to mitigate damages
    resulting from injury caused by D
    a) Burden of proof on P: to prove injury is permanent
    b) Burden of proof on D: to show P unreasonably failed to mitigate damages by submission to reasonable
        treatment (such as physical therapy or surgery); Must consider:
        i) Risk involved
        ii) Probability of success and expenditure of money and effort required
        iii) Pain involved
             (1) Courts cautious about insisting that due care requires submission to an operation
    c) If a dispute over the evidence whether P failed to mitigate damages: question of fact for the jury

                                                                                                                 10
   d) If clear and conclusive: proper for court to decide as a matter of law (P allows cut on leg to develop
       gangrene)
   e) In some states treated as one form of comparative fault
4) Pre-Judgment Interest: typically legislatures choose to set a rate of interest to take into consideration
   that recovery may take a while; prejudgment interest typically starts sometime after suit has been
   filed to discourage P from sitting on a claim to allow interest accrue and unnecessarily delay litigation
   a) Settlement offers may stop the prejudgment interest from accruing regardless of whether or not
       settlement offer is less than judgment; encourages P to accept settlement offers
Survival and Wrongful Death
1) Common law: if either party died; litigation stopped (except contract claims and conversion); favored killing
   someone rather than injuring them!
2) Survival Statute: action continues after the death of either party; extension of prior action; brought by the
   estate
   a) Action is transferred to P’s estate; estate subject to the same defenses that could have been brought
       against the decedent; e.g. comparative fault, etc.
   b) Unless the statute recovery is the same that the decedent would have been entitled to:
       i) Lost wages before and after death;
       ii) Pre-death medical expenses before the death
       iii) Pre-death pain and suffering
   c) Creditor can attach a portion of the award
3) Wrongful Death Statute: creates a new cause of action that belongs to victim’s dependents or heirs for
   their own loss; for the benefit of those left behind
   a) POLICY: under common law survivors were destitute
   b) Dependents bring the action (may or may not be beneficiaries)
   c) Statutes will name who can bring an action; e.g. creditors of the deceased can not reach the award
   d) Statute determines benefitters people who would have gained under no will; dependants
4) NY Statute ties in survivorship and wrongful death claims; don’t necessarily need separate actions
   a) Pecuniary damages: loss of support, voluntary assistance and possible inheritance, as well as medical
       and funeral expenses incidental; measurable by money
       i) Loss of consortium, grief, loss of society and companionship denied
       ii) E.g. grandmother provided meals, shelter, babysitting services, counseling, etc. ; grandchildren
            defined by statute as dependents (distributees)
   b) pain and suffering; whether decedent was consciousness during attack informs pain and suffering
       damages
5) Inflation:
   a) Require inflation be treated consistently; inflation out of both wages and discount rate or not used at all
6) Taxation: minority rule taxation: juries should be instructed about taxation ; allow evidence of
   decedent’s income taxes to reduce award so that jury will not inflate the award
   a) BUT Majority rule: in wrongful death actions income tax consequences should not be taken into
       consideration in determining the amount of a decedent’s probable future earnings that would have been
       available to decedent’s beneficiaries
       i) NY rule: Court of App has held that the damages component of a P’s award as to lost wages in a
            wrongful death action should be based on gross projected earnings and no deduction or consideration
            of after tax net should be allowed in to evidence or charged to the jury without express statutory
            direction to the contrary
            (1) NY statutes: in a wrongful death action in medical or dental malpractice: evidence shall be
                admissible to establish the federal, state, and local income taxes which the decedent would have
                been obligation by law to pay; court must instruct the jury; if no jury, the court must take into
                consideration
7) Parties must appeal to damages at the trial court level; can not object for the first time on appeal
8) Punitive Damages
                                                                                                                  11
a) Insurance companies
b) Bifurcated trial: looking at different issues at different times
c) Statefarm v. Campbell: limits on punitive damages and allowable evidence; balance all factors
   i) Nexus between specific harm suffered by the P and the reprehensible behavior of the D
   ii) Strict guidelines on state courts single digit ratio between punitive and compensatory damages;
        ―reasonable and proportional‖
   iii) Ps in an initial case are the pioneers to prove pattern of reprehensible behavior
d) Grimshaw v. Ford
   i) Cost benefit analysis
   ii) Malice definition: conscience disregard that their action would injure others
e) Arguments countering Tort Reform regarding Punitive Damages
   i) High end punitive damages rarely awarded
   ii) Usually comparable to P’s injuries
   iii) Usually reserved for truly egregious circumstances
f) Tort Reform: read article online….
   i) States vary regarding position on punitive damages
   ii) Procedural guidelines
   iii) Immunize corporate defenders
   iv) Capped by jurisdictions; two trials (bifurcated); raise burden of proof




                                                                                                         12
IV. NEGLIGENCE
1) Definition:
    a) conduct that falls below the standard established by law for the protection of others against
       unreasonable risk of harm;
    b) foreseeable risk, much less than substantial certainty; if foreseeable risk, then a reasonable person
       would be expected to anticipate the risk and would be expected to take precautions to avoid risk

2) Prosser’s Four Elements:
   a) Duty: Duty or obligation requiring the D to conform to a certain standard of conduct in order to protect
       others against unreasonable risk; matter of law; frequently based on a legal relationship between the
       parties (doctor, patient)
   b) Breach of duty: failure of the D’s part to conform to the standard required; question of fact
       i) Duty and breach together form negligent conduct
   c) Causation: two parts: close causal connection between the conduct and the injuries; breach resulted in
       the injuries
       i) cause in fact
       ii) legal or proximate cause
   d) Injury/Damage/Loss: actual injury, damage, or loss is required; no nominal damages; P must have
       suffered to recover in negligence
3) Negligence: Mixed questions of law and fact; must be proof of facts that give rise to a duty; facts must
   support a question of law (duty); court retains preliminary power of decision about whether duty exists; if
   no duty, case does not move forward; automatic J for D
   a) Sample questions of law
       i) Whether RR is under an obligation to protect Mrs. Palsgraf from fireworks explosion?
           (1) If duty: standard of conduct: reasonable person under the circumstances (jury instruction)
       ii) On occasion: Directed Verdicts and JNOVs ok in negligence: e.g. driving without lights on at night
           no reasonable jury could find that conduct is not negligent;
   b) Anytime reasonable people could differ; must be brought to the jury
4) Burden:
   a) P has burden of proof of breach and causation; burden of production of evidence (otherwise DV); if
       evidence prima facie casejury; and burden of persuasion; judge’s instruction that if jury is not
       persuaded (preponderance of evidence/more likely than not/more than 50%), must find for D
   b) D has burden of proof for affirmative defenses: contributory negligence; comparative fault, etc.

I. Duty (matter of law)
1) Duty owed only to a foreseeable plaintiff within the zone of danger (Cardozo), Palsgraf v. LIRR
    a) Andrews dissent; proximate causation; expansive view of duty to the world at large; but for causation;
       not a matter of law, should go to the jury
    b) Courts use both formulations Cardozo and Andrews
       i) Andrews: public policy dictates that we need to cut off liability is too remote;
           (1) Counter argument: she was a ticket holder, not truly an unforeseeable P

II. Breach of Duty: Standards of Care (question of fact);
1) Probability of Harm: Act must be probable not merely possible; but overstating what is required for
    burden of proof more than the concept of preponderance of the evidence; not necessary that likely to
    keep happening; more likely than not
    a) Nussbaum v. LacopoI; Golf course hooked and landed on P’s property; did the golfer had a duty to shout
       ―fore‖ before hitting a shot;
    b) carelessness must be commensurate with the risk and danger; could not have been reasonably
       anticipated that the harm complained of would result from the natural and probable consequences of the
       act claimed to be negligent
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2) Gravity of Harm: Inherent danger resulting from obvious defective product regardless of improbable
   occurrence
      i) Gulf Refining Company. v. Williams; Duty to anticipate that there would be harm from defective
         cap; D’s argument unusual, extraordinary, improbable occurrence; but gasoline as inherently
         dangerous, cap was obviously damaged; breach of duty; (risk utility analysis) cost of replacing cap
         (preventing the harm) miniscule compared with dangers for failure to replace the cap; public policy:
         shouldering the loss; careful manufacturing

3) Risk Utility/Cost Benefit Analysis Standard (Hand Formula): Burden of preventing the harm must
   be less than probability of harm Xs gravity of resulting injury (B<PL); economic analysis point of view
   a) E.g. Attractive Nuisance: duty of care owed to child trespasser attracted to dangerous machinery or
       i) Risk Utility/Cost Benefit Analysis: cost of preventing harm v. public good (utility obtain); burden of
           locking the turntable is far less than probability that trespassing children would be injured (attractive
           nuisance) Xs injury of life and limb (Hand formula)
       ii) Not really possible to quantify the intangibles; but consider the concept

4) Reasonable Person Standard: whether D’s conduct poses an unacceptable harm to P; much more jury
   friendly; juries won’t get lost in attempting to quantify factors (v. a person using their ―best judgment‖ too
   subjective a test); hypothetical person; don’t need to examine all possibilities and ultimately choose the
   best option; must be a reasonable option under the circumstances

   a) Four ways of determining what a reasonable person would do:
      i) Factfinder Determination
      ii) Judge Made Standards; e.g. driving at night above speed limit without lights is unreasonable; no
           need for jury determination
      iii) Legislatively Determined Standards: statutes set standards
      iv) Judicially Declared Standards Based on Legislation if no definitive standard set in statute, but
           legislature has talked about or has passed similar or related statutes; Court will refer to legislative
           enactment

   b) Factfinder Determinations and Added Considerations for the reasonable Person Standard

       i) “Sudden Emergency” Doctrine: how a reasonably prudent person would have acted under the
          sudden unexpected emergency circumstances; D not expected to entertain reasoned discussion
          and thoughts about all possible responses to the situation; must be a reasonable decision under the
          circumstances; if P created the emergencya factor for jury to consider
          (1) Burden of proof on P to provide evidence that P was at fault regardless (despite
              emergency)
          (2) Burden of proof on D to prove emergency situation to get jury instruction
              (a) Comparative Negligence to ameliorate harsh effects of contributory negligence (v.
                  Contributory Negligence: any contributory negligence on Ps’ part, even 1% barred recovery)
                  (i) Pure Comparative Negligence: As long as P isn’t 100% liable; (e.g.)P 99% liable can
                       still recover 1% of harm that belongs to D; no cutoff P; NY standard in statute
                  (ii) “Not as Great As” Comparative Negligence: If D’s fault is not as great as P’s fault, P
                       wins (some jurisdictions say P wins everything-total recovery; some say that P wins % of
                       recovery due to them)
              (b) Look at statute or case law to determine what the jurisdiction applies

       ii) Physical Impairments: must act as a reasonable person with that disability would have acted
           (1) Exceptions: Inability to Control One’s Actions
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       (a) Voluntary alcohol consumption: NO benefit of physical disability standard
       (b) mental deficiencies still negligentno varying standard of care (some jurisdictions have
           allowed for exceptions if a sudden mental incapacity); policy: hard to prove
       (c) Old Age and Alzheimer’s Disease ?

iii) Religious Beliefs/Reasonable Believer Charge: e.g. avoidable consequences rule: duty to mitigate
     damages; Jehovah’s Witness refused surgery which would have involved a blood transfusion;
     religion as one factor, not the determining factor; not proper to assert or challenge validity of
     religious beliefs (First Amendment)

iv) Minors: held to standard of reasonable child of similar age, intelligence, and experience
    (capacity); some young children can not engage in negligence (cut off under 5; depends on the
    jurisdiction)
    (1) Exception: Adult Activity (license required) or Inherently Dangerous Activity: held to an
        adult standard Judicial notice: court by own motion (sua sponte) will make a determination as a
        matter of law; e.g. skiing not an ―adult activity‖ as a matter of law; minors held to an adult
        standard

v) Common Carriers and Inn Keepers
   (1) Higher standards that ordinary person
       (a) E.g. bus driver insults passenger: outrageous conduct?
   (2) Must have right type of P: passenger, guest


vi) Superior Skills and Knowledge/Professional Standards of Care: held to a standard of a person
    with same skills in same or similar communities
    (1) Legal Malpractice
        (a) Duty requires a) general degree of adequate training (learning, skill and ability) as compared
            to other lawyers necessary to practicing law, b) best judgment, c) reasonable ordinary care
            and due diligence;
        (b) Exception: no subjective good faith exception for attorney negligence;
    (2) objective standard of reasonably prudent attorney in jurisdiction; state standard; based on
        bar requirements; overturns locality rule; if attorney made a mere error of judgment on
        unsettled point of law NOT negligent
        (a) Establishing the rule in the jurisdiction: expert testimony
        (b) Rationale for state wide rule: standard of care shouldn’t vary based on geography; code of
            silence regarding what sort of practice occurs; bar examination: each jurisdiction has
            different rules
        (c) Dissent argues nationwide standard; nationwide training in law school and multistate bar
            exam

vii) Medical Malpractice
     (1) Doctors held to national standard: national exams
     (2) Laymen’s exception to the general rule: no expert needed if any layman would know it to be
         gross negligence
     (3) Duty to Inform: if no informed consent no consent; negligence; based on self determination:
         only individual has the right to make decisions about own body
     (4) Exceptions
         (a) Disclosure would be detrimental to patient’s total care and best interests (patient is
             emotionally upset or apprehensive)
         (b) Risk known, ought be known by everyone or is known by patient
                                                                                                    15
               (c) Emergency
               (d) Patient lacks capacity
           (5) Objective Reasonable Prudent Person Standard: what a reasonable person under the
               circumstance having sufficient knowledge of risk and alternatives would do; not circumstances
               that come to light after: NY Rule
           (6) Subjective Standard: jury must decide credibility of patient’s testimony that they personally
               would not have gone through with procedure

5) Judge Made Standards; Compliance with standard may not immunize professional from liability; apply
   Hand formula: B (small burden of glaucoma test)<probability of injury (low) X actual injury (very bad
   injury, irreversible blindness)

6) Standards by Statute: expressly gives cause of action

7) Standards Adopted by Courts Based on Legislation/Violation of statutes in establishing duty and
   breach
   a) Negligence Per Se Standard: (alternative to reasonable person standard); when a statute does not
      provide for civil penalty but courts look to criminal statute to set civil standard; jury no longer
      determines breach;
      i) Generally: applying criminal statute as a standard to show what reasonable person would have
          done; if person failed to follow statute  breach of duty
      ii) BUT jury must still consider causal connection between breach and injury; defenses, and damages;
          majority position and NY
          (1) Relevant Questions for Determining Duty and Breach:
              (a) Whether P was within the class of persons the legislature intended to protect by the
                  statute?
              (b) Was the hazard the type of hazard that came about the type of hazard the legislature
                  sought to eliminate?
              (c) Whether harm is the type of harm suffered is the type of harm the legislature intended
                  to be protected?
          (2) Look to the intent of the legislature: language of the text, including the title, legislative history,
              statements by the bill’s sponsor, committee findings, and the like
          (3) Then look to causation and injury (licensing statutes: may get through duty and breach, but does
              not automatically establish negligence; must show causationlack of skill caused injury, not
              lack of license in itself );
              (a) however current law: violation of the statute is negligence per se: N.Y.C.P.L.R. § 4504: now
                  provides that the absence of a license to practice medicine shall be ―prima facie evidence‖ of
                  negligence in a medical-malpractice action. Must still show causation

       iii) If Statute Established Duty: Procedural Effects of Violation:
            (1) Negligence per se: violation of statute is negligence in itselfconclusive proof of breach; no
                burden on D to rebut (no jury for negligence determination); not liability per se; must still look
                to causation and injury; e.g. lifeguards, smoke detection devices, lights on a ship etc.
            (2) prima facie negligence; violation of statutepresumption of negligence; if evidence not
                rebuttedbreach of duty; burden on D to rebut; allowing limited excuses—D can rebut that
                his conduct was reasonable under the circumstances (possible excuses for jury: emergency,
                compliance would involve greater risk…)
            (3) some evidence of negligence : violation of statute only some evidence of negligence (jury
                candecide either way)

       iv) Excused Violations of Statute: Restatement Third § 288A; pg 319
                                                                                                                 16
   (1) Capacity: e.g. 8 year old ran into street, did not look both ways, hit by car; rebutted/excused if P
       lacked capacity; reasonable child in accordance with age, intelligence, and experience
   (2) Compliance Involved Greater Risk: e.g. nurse walking in street to avoid more dangerous icy
       sidewalk; hit by car; § 288A (e)
   (3) Emergency
   (4) No Knowledge of or occasion for compliance (light burns out while driving)
   (5) Inability after Reasonable Diligence to Comply: (e.g. snow falls faster than ability to keep streets
       clean and safe)

v) Regulatory Agency reasons why juries might not necessarily rely on legislative actions

vi) Defenses to Liability Based on Statute
     (1) Where a statute creates absolute liability can comparative negligence be a defense?
         (a) Liability without fault: total damages must be paid by the owner based on two conditions: P
             is peaceably conducting himself in any place where he may lawfully be; does not provoke
             dog
vii) Special Standards of Care: e.g. ―gross negligence‖ typically described by the legislature




                                                                                                        17
Proving Negligence
1) Custom: test is never ―what has always been done;‖ can’t hide behind custom if court determines under
   the circumstances a reasonable person would have done more (e.g. consider cost benefit analysis:
   B<PL; reasonable tug boat owner); if no evidence to suggest that a reasonable person would need to do
   more than adhere to the custom, then custom is reasonable; Restatement of Torts: inference, not a
   conclusion of immunity from negligence;
       i) Same for Compliance With Statute does NOT mean a person acted reasonably if you have reason
           to act and do more than statute required

2) Circumstantial Evidence: evidence which can be reasonably inferred, like footprints in the sand

   a) Constructive Notice: P must prove facts to establish that it is more likely than not that the dangerous
      condition existed long enough that a proprietor should have known of its presence, there is simply no
      basis for recovery; e.g. flattened, dirty brown banana peel; if constructive notice evidence of breach of
      duty
      i) Considerations:
          (1) Discoloration
          (2) Proximity and Opportunity to Discover
          (3) Absence of Inspection
          (4) Prior Occurrence
          (5) Mode of Operation: e.g. self service grape station in supermarket; policy in store to put mat
              under grapes; company policy as circumstantial evidence that store knew harm was foreseeable;;
              no need to prove constructive notice if harm was foreseeable; logical basis for notice requirement
              dissolves

3) Direct Evidence
   a) Actual Notice: someone directly notifies D that dangerous condition exists; eye witness

4) Res Ipsa Loquitur: ―the thing speaks for itself‖ Special nature of the accident and D’s relationship to
   it may justify a jury’s decision that the D more likely than not was negligent; aid to P in making case
   a) POLICY: helps P when not able to get evidence; rule of necessity
   b) Two Questions in Determining whether to give Res Ipsa Instructions:
       i) Nature or character of the accident is such that it would not ordinarily occur in the absence of
            negligence and; inference that someone was negligent;
            (1) P must prove: common knowledge/common sense and/or experts
       ii) The instrumentality causing the injury was in the exclusive management and control of the D
            (lax interpretations); inference that D was negligent;
            (1) P must Prove: D had exclusive control (has been lax), etc.
       iii) Some jurisdictions ask third question: circumstances such that there was no contributory negligence
            on the part of the P; less important in most modern courts because of comparative negligence
       iv) Some jurisdictions: evidence must be more readily accessible to D than to the P

   c) Procedural Effects (varies by jurisdiction)
      i) Majority: another form of circumstantial evidence; negligence of the D is the most plausible
          explanation for the injury, the doctrine applies inference of negligence, but jury may still find D
          not negligent; no burdens shifted; in some cases inference of negligence is so clear, that no
          reasonable jury could find otherwise (e.g. human parts found in food; trains collide on same
          track); allows P to get passed DV and get to the jury; prima facie case of negligence
      ii) Minority of jurisdictions: presumption of negligence of Dshifts burden of production of the
          evidence to the D—or creates a presumption which requires a DV for P unless D introduces
          sufficient evidence to rebut; greater effect than mere permissible inference; D must rebut
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      iii) Even smaller minority: presumption of negligenceshifts ultimate burden of proof to D to
           introduce evidence of greater weight than that of the Ps; presumption shifts burden of going
           forward with the evidence and burden of persuasion—D must rebut; e.g. D has access to kind of
           evidence that would be necessary

   d) Proof of negligence does not necessarily preclude res ipsa jury instructionsif proof is not
      conclusive (Mobil Chemical); majority procedural effect; inference only

   e) “Exclusive” control loosened: gas company has non-delegable duty regardless of others digging
      around on the street tapping into gas lines; majority procedural effect applied—inference only

   f) Multiple Ds, multiple instrumentalities, not all employees under respondent superior, and not
      quite sure who had exclusive control; does not preclude res ipsa; e.g. unconscious operation
      (Ybarra); burden of proof shifted to Ds; shifts burden of production of evidence

5) Disposing of Unfavorable Evidence: no separate tort even if lack of evidence precludes recovery;
   because no separate harm; only sanctions available; look to text! Pg 356




                                                                                                       19
Factual Causation
1) Intro: Factual Causation v. Proximate Cause

   a) Factual Causation/Cause in Fact of the injury
      i) Sine Qua Non “But for” causation;
      ii) Substantial factor/Material Element: potential for multiple causes or two independent factors
          (more refined test)
   b) Proximate Causation/Legal Cause
      i) Fairness/policy issues forseeability; e.g. person of ordinary intelligence would foresee running out of
          gas and stalling on well traveled highway creates a risk

2) Traditional Approach
   a) But For Causation:
      i) Definition: P’s negligence is such that without which no harm would have occurred the act or
          omission is a cause in fact of the injury

       ii) Multiplying the Likelihood: If D’s negligence multiplies the likelihood of injury and is of a
           character naturally leading to its occurrence, the mere possibility that the injury would have occurred
           in the absence of negligence does not break the chain of fact

       iii) Remote possibilities: mere possibility not enough of causal connection not enough, must be
            probable to be cause in fact; no speculation; e.g. no remote possibilities that cut in head led to skin
            cancer


   b) Substantial factor Test P must prove that there was a substantial link or nexus between D’s
      omission and P’s injury (cause in fact); e.g. FedEx lasy attacked; D building owners not to be insurers.

       i) Independently Sufficient Causes and Related Problems: But for test doesn’t work when multiple
          causes to harm; e.g. combined fires destroyed the property; D’s conduct as a material element in
          bringing about the event; notes 375-377

   c) Loss of a Chance: The failure to act appropriately at a particular point was the cause in fact of lost
      opportunity of avoiding the problem and getting a better result; e.g. failure to timely diagnose loss of leg
      i) P must present expert testimony; must prove doctor’s malpractice
      ii) Damages based on proportional basis as determined by the percentage value of the patient’s chance
          for a better outcome prior to the negligence act;

3) Modification of Traditional Approach: inability to show factual causation
   a) Multiple Fault and Alternative Liability: innocent P and culpable Ds and P can’t show cause in fact
      burden of proof shifted to Ds; res ipsa (shows duty and breach); Summers v. Tice
      i) If Ds can not prove can be held jointly and several liable because Ds must have better
           information (supported by Restatement)
      ii) Joint and Several Liability
           (1) P can go after either D1 D1 can go after D2
           (2) Must join all potential culpable Ds
   b) Enterprise Liability
      i) Small # of Ds
      ii) Joint knowledge of the risks inherent in the product and join capacity to reduce risk
      iii) Each D failed to take steps to reduce risk, delegating responsibility to trade association
      iv) Most, if not all, Ds are joined
                                                                                                        20
     c) Market Share Liability: P unable to show factual causation
        i) Shifts the burden of disproving factual causation to D;
        ii) Liable for what percentage of the market they had and damages paid out proportional to injury;
            DES suits; enterprise liability doesn’t apply because large number of Ds (200 manufactures, not all
            Ds joined); 5 Ds responsible for 90% of the market (in CA)


State      Methods Used                             Ps Recovery                       Exculpation Allowed
CA         Market share; regional                   Several liability only (not       Yes if product could not
           marketnational market                   joint); each D is only paying     have caused the injury;
                                                    for their share of the market     e.g. I wasn’t in business,
                                                                                      my pill was pink; didn’t
                                                                                      sell it to that hospital
WI         Proportion of the risk to individual P; Joint and several; 100%            Yes if product could not
           risk created by D; question of fact        recovery                        have caused the injury;
           market share is one factor (market                                         e.g. I wasn’t in business
           share is relevant, along with testing,
           warnings, etc.,); case by case basis
WA         Market Share Alternative Liability         Joint and several 100%            Yes if product could not
           Each D presumed to have 100%                                                 have caused injury
           market share until D rebuts; among all
           Ds that can’t rebut; inflated so P
           receives full recovery
NY         Market Share National Market               Partial/several; less than 100% Yes, but only if drug was
           More fair D can not avoid liability if     recovery                          never marketed for
           drug not marketed in specific region                                         prevention of miscarriage
           of P
        i) When market share is applied:
            (1) Injury caused by a product that is viewed as fungible (products indistinguishable from each
                other/interchangeable), manufactured by all Ds joined in the law suit
            (2) Injury of illness is due to what might be considered a ―design hazard‖ with each D having sold
                the same type product in a manner that made it unreasonably dangerous (product liability)
            (3) Inability to identify the specific manufacturer of the product
            (4) Enough of the manufacturers have been joined to represent a substantial share of the market

4) Liability Based on Concerted Action: form of vicarious liability
   a) Concerted action: participation in general plan, aided, actively take part, further, by cooperation
      or request, or who lend aid or encouragement to wrongdoer, or ratify and adopt his acts for their
      benefit are equally liable with wrongdoer

     b) P has joint and several liability 100% recovery (one D may go after other Ds and seek ―contribution‖ by
        impleading other Ds)
        i) Herman v. Westgate; stag party P thrown overboard in 2 feet in water, unsure of which of the Ds
             who harmed him; jury question as to whether Ds acted in concerted action
     c) Elements of Civil Conspiracy, 408
        i) An agreement between two or more persons
             (1) tacit enough no need for explanation
        ii) To participate in an unlawful act, or in a lawful act in an unlawful manner
        iii) An injury caused by an unlawful overt act performed by one of the parties to the agreement
        iv) Which overt act was done pursuant to and in furtherance of the common scheme

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d) Elements of Aiding-Abetting
   i) The party whom the D aids must perfirm a wrongful act that causes an injury
   ii) The D must be generally aware of his or her role as part of an overall illegal or tortious activity at the
        time the assistance is provided
   iii) The D must knowingly and substantially assist the principal violation
        (1) Look to nature of the act
        (2) Amount of assistance
        (3) Whether D was present
        (4) Relation to tortious actor
        (5) State of mind

e) Joint Enterprise: includes a partnership, or less formal arrangement for cooperation during a more
   limited period of time and for more limited purposes
   i) Elements
       (1) An agreement, express or implied, among the members of the group
       (2) A common purpose to be carried out by the group
       (3) A community of pecuniary interest in that purpose among the members
       (4) An equal right to a voice in the direction of the enterprise, which gives and equal right of control

f) Incitement
   i) Where a communication results in an action that results in injury
   ii) For this to arise the P must establish that publication went beyond mere advocacy and amounted to
       incitement, and that the incitement was directed to imminent action
       (1) E.g. newspaper publishing the name and address of a witness to a crime while the perpetrator is
           still at large




                                                                                                              22
Proximate Cause: Scope of Liability
1) Intro: Three Approaches and Definitions:
   a) Direct Causation: minority liability extends to any harm which flows in an unbroken stream from
       the actor’s tortious conduct, no matter how unforeseen the harm may have been at the moment
       the acts occurred, unless intervening-superseding cause arises must be unbroken by intervening
       causes (similar to transferred intent)
       i) Polemis, 421 P passenger in D’s car; D is speedinglightening strikes tree which hits car, causing
           injuries; D’s negligent driving was the direct cause of P’s injuries (but for D’s speeding never
           would have put car in position to be hit by tree)
       ii) Wagon Mound No. 1; oil spill on wharf; across wharf P weldingfire and destruction (direct
           causation)

   b) Forseeability: reasonably foreseeable that this kind of injury resulted from negligent act;
      practical, logical policy reason to cut off liability (Andrews);
      i) Forseeability test used not only to establish duty, but also to establish proximate cause
      ii) Prospective; limited to act foreseen by D at the time
      iii) P must fall, at least generally within class of persons foreseeably endangered by the D’s conduct
      iv) broad outline of harm must be foreseeable, but the precise details or manner of its occurrence need
           not be anticipated by the D
      v) apply Hand formula; if gravity of harm is great and cost of prevention is minimal can still say
           foreseeable (public policy)
           (1) Wagon Mound 2; ship engineer; D can be held liable for remotely foreseeable risk if cost of
               preventing harm is small relatively easy and inexpensive; D is not justified in ignoring a small
               risk if burden is small (Hand formula applicable also to establish breach)
      vi) but rare case, even if forseeability of the harm that results, proximate cause may be found wanting
           on the ground that the injury is too tenuous and too remote to require that D pay compensation (e.g.
           traffic jam halts business)
           (1) Injury too remote from negligence
           (2) Injury wholly out of proportion to the culpability of the negligent tortfeasors
           (3) In retrospect appears highly extraordinary that negligence would have brought about the harm
           (4) Fraudulent claims
           (5) No sensible or just stopping point

   c) Result Within the Risk: was the risk that was created by negligent act of the same hazard from
      which P was harmed; Law doesn’t require specific details or manner of occurrence
      i) The end result must fall within the scope of risks that made the D’s conduct negligence or otherwise
           tortious
      ii) Damage from same physical force that required due care and the harm was of the same general sort
           that was expected, even if harm greater than expected D will be liable; not everything has to be
           foreseeable
      iii) e.g. car rolls back at gas station and injures P (didn’t turn off car at gas station; gas attendants should
           tell drivers to turn off cars) but risk created by leaving one’s car running is the risk that will cause an
           explosiontherefore actual result of car rolling away and causing injury to P not within risk of fire
      iv) e.g. Union picnic lacking security; picnicker drove car into picnic area and

2) Eggshell Doctrine:
   a) Personal injuries: if some are foreseeable, it is irrelevant that the full extent of the injuries is not
      foreseeable
   b) Take P as is; D triggers worsening of preexisting condition
      i) Direct causation
      ii) Factor in fixing damages: life expectancy
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3) No Duty (judge, matter of law; precedential value)
   a) even if negligent not a proximate cause because no duty to P, Palsgraff

4) Superseding-Intervening Causes
   a) Definitions:
      i) Intervening Cause: force which comes into play after the negligence of the D, and which
          participates along with the D’s negligence in causing injury to the P
      ii) Superseding-intervening Cause: third party action breaks the chain of liability between another D
          and P’s injury
          (1) Dediarian v. Felix: D2 doesn’t take meds, has seizure, hits P on construction site; construction
              site did not erect barriers to protect workers, regardless of D2’s seizure; not a superseding cause
              as a matter of law
          (2) Huddleston v. City of Charleston: Reckless motorcycle driver; crashed into police road blocks;
              passenger on motorcycle died
              (a) Can have multiple proximate causes; e.g. If cops’ actions as superseding causeabsolves
                  motorcyclist (antecedent tortfeasor)but doesn’t work in reverse if cops’ actions not
                  superseding causethey can still be a proximate cause

   b) Criminal Acts as Superseding Causes: criminal acts generally not foreseeable
      i) Exceptions:
         (1) Foreseeable criminal acts: e.g. past acts of criminal activity at the location gives
             constructive notice
             (a) Nixon; Criminal acts of D not the superseding cause, girl raped in abandoned building;
                 evidence showed there was a lot of criminal activity in the neighborhood, particularly in the
                 abandoned building

   c) Rescuers Doctrine
      i) No duty for ordinary person to rescue
      ii) Liability: if someone goes to try and rescue a person, the tortfeasor responsible for initial injury to
           person being rescued, liable for rescuer’s injury as well ; Wagner; Cardozo case ―danger invites
           rescue‖ unless the rescuer acted rashly and imprudently; contributory negligence, (which would bar
           recovery) or for comparative negligence (recovery proportional)
           (1) Altamuro; rescuer reentered burning building after firefighters warned otherwise; reasonable to
               go back in and make more successful; modified comparative negligence jurisdiction;
               comparative negligence
      iii) Rescuing not a superseding-intervening cause
           (1) Even if rescuer aggravated P’s injuries; as long as rescue was reasonable and not wanton
      iv) Two Requirements:
           (1) There must be a risk of imminent peril to the person or property of another AND
           (2) there must be an act of intervention in response to the peril by the purported rescuer

   d) Relationship to Comparative Principles
      i) Adoption of comparative fault1 (take P’s liability in account)abrogates superseding causation?
          Depends on the jurisdiction
      ii) No conflict between concept of superseding-intervening cause and comparative negligence
          statute, Control Techniques v.
          (1) Might help a jury but instruction for superseding cause left to the discretion of the courts

                 1
           (1)    Comparative negligence
           (2)   Comparative fault: broadergoes beyond negligence, recklessness, strict liability; defense assumption of the risk
                                                                                                                                     24
            (2) Under comparative fault or under superseding cause, D’s liability would be 5%, therefore jury
                would have found not a superseding cause
                (a) Not giving jury instructionharmless error; even if jury got superseding intervening
                    instructionjury still can determine not a superseding cause and then apportioned damages
                    based on D’s comparative fault
       iii) Doctrine of superseding causes abandoned; instruction will confuse a jury, Barry v. Quality; ,
            (Conn. 2003)
            (1) Superseding doctrine still applicable in limited cases: unforeseeable intentional tort, force of
                nature, or criminal event supersedes its tortious

   e) Shifting Responsibility
      i) A third person’s failure to prevent harm is a superseding-intervening cause which relieves the
         original tortfeasors of liability for any harm incurred subsequent to the shifting of the
         responsibility
         (1) E.g. Goar v. Village of Stephen; contractor put up electrical lines; contractual responsibilities for
             maintenance of wires was turned over to the village; 17 month lapse of time; deprived of means
             of inspection; Concern of unlimited liability for contractor; Responsibility for maintenance
             shifted to village; village’s omission becomes superseding cause
         (2) Balido v. Improved; manufacturer urges installation of safety device, owner refuses, P worker
             injured but for safety installation; superseding-intervening cause question of fact for jury;
             (a) Guidance to juries: whether the manufacturer has taken all reasonable steps (Restatement)

       ii) Relevant Factors for Shifting Responsibility Restatement 2d § 452; pg 469
           (1) Existence of a contract to define obligations
           (2) Magnitude of threatened harm (electric shock)
           (3) Character and position of third person and that party’s ability to take remedial action
           (4) Likelihood that third person will act to prevent harm, including such considerations as expense,
               inconvenience, and exposure to, or immunity from, legal liability
           (5) The third person’s relationship to the P and
           (6) The lapse of time (greater the time, the more likely the burden will shift)

       iii) Shifting Responsibility and Duty
            (1) First Assembly v. Texas Utilities pg 469…

5) Limited Duty: Failure to Act (Exceptions to Duty to Rescue)
   a) Common law principle: no duty to rescue unless
      i) Special relationship with person
      ii) A puts B in harm’s way
      iii) Can’t begin rescue then abandon mission or discourage others from coming to the rescue ; duty to
           proceed non-negligently
   b) Duty to control
      i) If no duty to control, no custodyno special relationship, no ability to control
           (1) E.g. jail released paroled con to halfway house, never showed uphalfway house never called;
               parolee went on 8 day crime spree

   c) Duties Based on the D’s relationship to the Victim or the Injurer
      i) Common Carriers:
         (1) Restatement 2d § Torts; duty to protect against unreasonable harm and render first aid if
             reason to know passenger is ill or injured, and to care for them until they can be cared for
             by others
             (a) Also duty to stop and get information in the event of an accident injuring the passenger
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           (b) Policy: can readily see foreseeable harm to P if didn’t stop; no undue burden on bus
               company e.g. passenger on bus injured when car rear-ended bus; bus driver didn’t stop to
               collect information from other driver, P precluded from suing

   ii) Property Owners/Landlord:
       (1) areas under landlord’s exclusive control landlord has exclusive power to make repairs
           (a) common areas: landlord has a duty to protect tenants from foreseeable (crime in
               neighborhood, crime in building) criminal acts

   iii) Providing Information/Private Investigators:
        (1) Duty to ask purpose, duty not to disclose certain information (SSN), etc.
        (2) Policy concerns of stalking and identity theft override (prevalent statutes among states)
            foreseeable that injurer’s requests for information would lead to his criminal acts
        (3) E.g. Private investigation company finds and reveals information; man (injurer) used information
            to stalk and kill P’s decedent; injurer never revealed purpose for information; D argues: Criminal
            acts as superseding intervening cause of P’s injury

   iv) Threats posed by Children
       (1) If people in special relationship are aware of other’s violent propensitieswill be held
           liable
           (a) E.g. child had long history of assault, parents held liable
       (2) Also possible negligent entrustmente.g. parents gave knife to their violent child who later
           stabbed girl on bicycle

   v) Counselors/Mental Health Clinics/Lawyers:
      (1) Although no general duty to warn 3rd parties and despite doctor-patient privilegeif harm
          is foreseeable there is a duty to warn
      (2) psychotherapist has a duty to make reasonable predictions about the dangerous tendency
          of his patients and to warn potential victims when appropriate;
          (a) Appropriate to waive policy of doctor-patient privilege in favor of public safety; analogy
              between physical diseases and mental diseases; doctors have duties to disclose contagious,
              though private diseases for public health (e.g. venereal disease)
              (i) E.g. Young man counseled by psychotherapist says he is going to burn down father’s
                  barn; promises not to do it; counselor believed in good faith that he wouldn’t do it;
                  patient burned down barn; health clinic didn’t have updated medical records (was
                  foreseeable)
          (b) California Statute: duty to warm against serious threat of physical violence against a
              reasonable identifiable victim or victims; e.g. specific threat + specific third party
          (c) Restatement: virtually all hold that psychotherapist has a duty to warm with regard to
              dangerous patients

d) Duties Based on D’s Involvement in an Accident/Negligently Creating a Dangerous Situation
   i) Common law exception: if you are the person who actually caused the harm whether
      innocently or tortiouslyduty to rescue (D must come forward with correct information about
      pesticide poisons)
      (1) Restatement § 322: Duty to Aid Another Harmed by Actor’s Conduct: if actor knows or
          reason to know that by his conduct , whether tortious or innocent, he has caused such bodily
          harm to another as to make him helpless and in danger of further harm, that actor is under a duty
          to exercise reasonable care to prevent future such harm
          (a) E.g. landlord sprayed outdoor pesticide in tenant’s apt; landlord tried to prevent P from
              learning of true ingredients of pesticide poisons; P grew sicker
                                                                                                          26
ii) D does not negligently create a dangerous situation when:
    (1) E.g. drunken frat boys jump off cliff; P couldn’t swim, was encouraged to jump by other frat
        boys; P drowned; P’s argument: D negligently created a dangerous situation; no duty for adult
        who is voluntarily drunk
    (2) E.g. providing a reference when someone else does the hiring

iii) Voluntary Involvement
     (1) Where D voluntarily undertook an act and caused P to reasonably rely to her detriment on
         the statementsD has a duty to perform act in a reasonable, non negligent manner
     (2) Restatement § 323: one who voluntarily or for consideration undertakes to perform an action is
         liable to the other for any harm resulting from his failure to exercise due care, if his failure
         increases the risk of harm or the harm is suffered because of the other’s reliance upon the
         undertaking; e.g. generally no duty for employer to discover disease from blood test unless
         voluntarily opts to do so:
     (3) § 324A Assumed Duties to Third Parties: one who voluntarily or for consideration undertakes
         to perform an action is liable to the other for any harm resulting from his failure to exercise due
         care, if he has undertaken to perform a duty owed by the other to the third person, or if his failure
         increases the risk of harm or the harm is suffered because of the other’s reliance upon the
         undertaking; e.g. architect’s faulty plans injures 3rd party
         (a) E.g. pilot took blood test for fitness for employer, employer never checked blood test
             (company policy); P contracted bone marrow cancer that would have been apparent had
             employer checked results; P argued D had duty to discover as well as duty to disclose
         (b) e.g. woman visit house, tells host that her steps are icy; host tells daughter in the presence of
             P to salt steps; P assumes steps have been salted; when she leaves P injured; D owed duty;
             respondent superior: agentprinciple relationship between mother and daughter
             (i) No recovery under traditional rule of licensee:

iv) Negligent Entrustment
    (1) Restatement § 390 Negligent Entrustment: one who supplies a chattel for the use of another
        whom the supplier knows or has reason to know to be likely because of his youth, inexperience,
        or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and
        others whom the supplier should expect to share in or be endangered by its use, is subject to
        liability for physical harm resulting to them.
        (a) E.g. parents finance a car for daughter with known drinking problem; daughter crashes car
            and hits P; Financing car under these circumstances (special relationship, knowledge, and
            forseeability) constitutes negligent entrustment; Financing the car was more blameworthy
            than if they just lent her the car (relinquished total control of a dangerous instrumentality to
            known drunk driver)
        (b) BUT not all lien holders will be held liable; depends on additional criteria:
            (i) Forseeability
            (ii) Degree of certainty that P suffered injury
            (iii)Closeness of connection between D’s conduct and injury suffered
            (iv) Moral blame attached to D’s conduct
            (v) Policy of preventing future harm
    (2) No duty from forseeability alonemust affect specific P or specific D; special duty to P
        based on relationship to either P or D
            (i) D must be in a position to control the third party’s action; must be in the best
                 position to prevent harm to P
            (ii) E.g. P suing gun manufacturer for negligently marketing and distributing guns to areas
                 with weak gun control laws and shady Ds (negligent entrustment); also marketing of
                 inherently dangerous product (products liability)
                                                                                                          27
                  (iii)No proof that manufacturer knew or had reason to know guns distributed in black market
                       on constant basis and didn’t do anything about it; had knowledge that third party had
                       capacity to use chattel in a dangerous way…; general statements about an industry not
                       enough negligent entrustment fails
                  (iv) Policy: concerns about limitless liability

   e) Statutes Relating to Rescue (Mn, Vt)
      i) Requires some persons to render emergency assistance; combines duty-to-rescue with a “good
         Samaritan” statute that limits liability;
         (1) Reasonable assistance to the extent that person can do so without danger or peril to self or others;
             may include attempting to or obtaining aid from law enforcement or medical personnel
         (2) Limited liability unless willful and wanton or reckless

   f) Abrogation of General Rule
      i) No Good Samaritan rule generally, but can not impede Good Samaritan from rendering aid;
         applies only to establishments open to the public and open at the time; asking to use the phone
         not extraordinary
         (1) E.g. D did not allow P to use phone to call police to alert of imminent danger to his father; father
             was murdered; nonfeasance by D
         (2) Cites 7 factors in Rowland v. Christian; forseeability of harm to P; degree of certainty that P
             suffered injury; closeness of connection between D’s act and injurt suffered; moral blame
             attached to D’s conduct; policy of preventing future harm; extent of burden on D and
             consequences to the community or imposing duty to exercise care with resulting liability for
             breach; and availability, cost, and prevalence of insurance for the risk involved

   g) The Public-Duty Rule: law enforcement officials have a duty to general public as whole, not to
      any individual specific person (absent a special relationship)
         (1) Policy: limited police resources, not up to the courts to allocate funds; limitless liability

       ii) Special relationship between police and injured party; e.g. court order; awareness of threat-
           maker’s violent propensity; promised protectione.g. P relied on police protection of daughter from
           violent father; passage of time-occurred after he was supposed to have brought child back and after
           the police said they would act

Limited Duty: Premises Liability
1) Categories:
   a) Trespasser:
      i) Defined: no consent to be on land
      ii) Duty: no duty unless or trespasser is a child; or if property owner is reckless, willful and wanton
           (e.g. hidden traps, spring guns, etc.)
   b) Licensee:
      i) Defined: ―social guest‖ coming onto property for own benefit or purposes;
      ii) Duty: higher duty than trespasser, but not by much, no obligation to inspect premises to discover
           dangers unknown to possessor (hidden dangers) ONLY to give warning or protection against
           conditions that are known (open and obvious); treated as similar status as possessor of land;
      iii) Examples:
           (1) someone seeking coverage from storm
           (2) Cops and firefighterstypically presence not expected
           (3) Family members
   c) Invitee:

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       i) Defined: ―business visitor‖ invited expressly or impliedly invited to do business with occupier; or
            lands open to the general public,
            (1) Scope of Activity for land open to the general public: invitees’ use must be within the scope
                of permitted activity for the lands (i.e. probably not be allowed to barbeque on a playground)
       ii) Duty: highest duty; under affirmative duty to protect invitee not only against dangers known to
            occupier, but also against those that with reasonable care, he might discover, i.e. from dangers that
            could be known upon reasonable investigationreasonable care standard
       iii) Scope of Invitation: Restatement: an invitee who exceeds the scope of the invitation may become a
            trespasser or a licensee e.g. shop is in the same building as shopkeeper’s residence: trespasser if
            patron goes into residential part of a building without shopkeeper’s consent; licensee if shopkeeper
            permits him to go to the bathroom or to pay a social visit
       iv) Examples:
            (1) E.g. gardener
            (2) No intangible benefits (bible study)

2) Further Examples/Exceptions:
   a) No independent duty to rescuer in the absence of underlying tortious act to the person actually
      placed in peril (no original duty to trespassertherefore no duty to rescuer)
      i) Bonney v. Canadian National RR; (1st Cir. (Me) 1986); RR bridge hazardous; often traversed by
         pedestrians, no warnings, no signs, etc. 15 year old rode bike across bridge against the warning of
         friend; kid fell off bridge into river; police officer drowned in attempted rescue;
         (1) RR’s failure to warn was not reckless in maintaining open and obvious danger of bridge used
             by pedestrians; no general duty to protect trespassers even from foreseeable harm

   b) Only possessor of land can claim limited duty based on trespasser standard
      i) Humphrey v. Twin State Gas and Electric; (Vt. 1927); trespasser injured by fence electrified by the
         negligence of electric co.; electric co. attempts to invoke trespasser no duty rule
         (1) Regular negligence duty

   c) Attractive Nuisance/ Restatement § 339 “Artificial Conditions Highly Dangerous to Trespassing
      Children”
      i) Trespasser exception for children of tender years
      ii) Requirements:
           (1) Possessor knew or should have known that small children were likely frequent the place and play
               about it
           (2) Condition was one that possessor knew or should have known, involved a an unreasonable risk
               of death or serious bodily harm
           (3) The child because of his tender years did not realize the risk involved in the dangerous condition
               (a) e.g. pool of water: (adults might test depth of water, won’t go in if can’t swim…)
           (4) the utility if any, of eliminating the danger was slight as compared to the probability of injury
               resulting therefrom; burden of removing danger on landowner and community was slight as
               compared to risk to posed to small children
      iii) Natural v. Artificial Exception: no obligation on landowner to make all natural phenomena safe,
           as opposed to man-made ―artificial‖ dangers
      iv) Example:
           (1) Banker v. McLaughlin; (Tex. 1948); child drowns in artificial pool on construction site; owner
               not using it for any purpose that was a benefit to himself or surrounding property owners

   d) Invitee v. Licensee?: question of law for the courts
      i) Must be tangible or economic benefit; not a social benefit

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           (1) P attends bible study at D’s house not open to the public; limited invitation to church members;
               D received no benefit

       ii) Scope Exception
           (1) P familiar with business; injured on route to bathroom which was not in public area (scope); P
               had used bathroom on previous occasions when actually made purchases and had never been
               advised that bathroom was not for public use; even if no purchases made this time not
               converted into licensee; has purchased in the past, will purchase again

3) Abrogation of Premises Liability Categories
   a) Abolishes distinctions and applies ordinary standard of care based on reasonable person under
      the circumstances
      i) Determining duty under the circumstances entails balancing a number of considerations (instead
          of basing duty of the status of P as trespasser, licensee, or invitee):
          (1) 7 factors from Rowland: forseeability of harm to P; degree of certainty that P suffered injury;
              closeness of connection between D’s act and injury suffered; moral blame attached to D’s
              conduct; policy of preventing future harm; extent of burden on D and consequences to the
              community or imposing duty to exercise care with resulting liability for breach; and availability,
              cost, and prevalence of insurance for the risk involved
          (2) NY follows
   b) A number of states have abolished the distinctions between licensees and invitees but retain special
      duties regarding trespassers
   c) At least twelve states have declined to abolish distinctions

4) Liability of Landlords Exception
   a) Not an abrogation of general rule that landlord has duty over common areas only
   b) Exception under certain circumstances wherein landlord reserves control of areas not common
      i) E.g.; tenant owned pitbull with known vicious propensities; landlord was made aware through
          complaints; ―no dogs allowed‖ clause; tenant’s visitor was killed by dog; dangerous condition exists
          inside the apartment ; preprinted form; policy in place for breach of ―no pets‖ clause; easy procedure
          for eviction; therefore under the circumstances, landlord had ability to control premises
      ii) No breach if landlord would have taken steps to enforce procedure regarding dog even if hadn’t
          evicted tenant

5) Protection Against Crime
   a) Owner of premises has no duty to comply with criminal demands
      i) E.g. P’s decedent was patron of business; armed robber entered and took decedent as hostage and
          demanded money; teller refused demand; speculative that compliance would prevent harm; would
          only encourage hostage taking; umbrella of no duty to rescue

6) Duties to Persons Outside the Premises:
   a) Even though D doesn’t own propertyif treats it as if in possession and control, D’s lack of title
      immaterial for liability
          (1) E.g. Orthman v. Appl River Campground; (7th Cir. 1985) boy injured while on property adjacent
              to property owned by D; attempted to dive off banks near tree from which other kids dove; D
              cleaned and maintained river banks; knew property was used by their patrons; cut down tree after
              incident; boy treated as invitee on adjacent property

   b) Duty to warn of foreseeable off premises danger


                                                                                                                30
       i) Lessees: under the circumstances, duty to exercise ordinary, reasonable care for their safety
            which includes an obligation to advise of off premises danger that might reasonably be
            foreseeable
       ii) Policy: changing social conditions, rule no longer appropriate under the circumstances
       iii) keeping rule for landlord (no duty to warn), changing the rule for lessees
            (1) e.g. movie patrons not warned about flooding dangers upon leaving movie; child drowns;
            (2) No duty for landownersno control over movie goers; lessees: exclusive control over the
                premises

Negligent Infliction of Severe Emotional Distress
1) Intro:
   a) concern fraud factor, possible to fake symptoms
   b) scope of liability
   c) Liability disproportionate to fault: limitless damages and Ps
   d) Limits/Barriers in some jurisdictions:
       i) Ordinary sensibilities:
       ii) Physical impact or injury necessary:
            (1) Impact requirement possibly more lenient: i.e. spitting on another
       iii) Not a separate tort; another breach of legal duty necessary; parasitic damages
       iv) Bystanders: familial connections
       v) Zone of Danger: unforeseeable P outside scope

2) Examples:
   a) Ordinary Sensibilities: objective standard
      i) D’s conduct must show severe emotional distress to a person of ordinary sensibilities, P’s
           reaction not reasonable under the circumstances; not reasonable fear
      ii) No eggshell: concern of fraud, but caveat in intentional, infliction, of emotional distress: if person
           who causes distress is aware of the sensibilities; not clear as to whether courts have required caveat
           in negligent infliction of emotional distress
           (1) E.g. woman stuck in elevator for 40 minutes; claims aggravation of pre-existing conditions
      iii) Fear of Aids, Cancer, or Other Diseases, pg 581
      iv) Ways of Establishing Genuineness of Claim: note 4, pg 581
   b) Impact rule: x ray, splattered blood
   c) Physical consequences: small tap, dust in eye
      i) Invasion of particular kinds of legal rights
      ii) No special requirements

   d) Zone of Danger:
      i) Generally evidence of physical harm necessary:
      ii) Two Exceptions
           (1) Negligent transmission of telegraph company misinforms someone of death of relative
           (2) ―Property right‖ in mishandling of body
      iii) Zone of Danger: foreseeable Ps ; duty e.g. hospital misinforms family members of relative’s death;
           set up funeral; realized at funeral not mother/aunt; sued for recovery of funeral expenses and
           negligent infliction of severe emotional distress

   e) Distress Occasioned by Harm to Another: Bystanders and Familial Connections
      i) Forseeability approach:
         (1) Relationship between parties: sufficiently close familial relationship
         (2) Sensory perception of the accident

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               (a) So long as the shock closely on the heels of the accident; no contemporaneous observation
                   necessary; e,g. rushing to scene of the accident or the hospital
               (b) Even if outside ―zone of danger‖
           (3) Harm to the other must result in serious physical injury or death
           (4) No physical showing of injury necessary

       ii) Loss of Consortium: bystander’s loss of companionship
           (1) For finder of fact to determine legal relationship
               (a) Factors to consider closeness of familial relationship, pg 599
               (b) Further Limits and Presumptions based on Marital Relationships
                   (i) Only one person can claim loss of consortium based on intimate familial relationship
                        which is committed and exclusive
                   (ii) Burden on claimant but with a presumption if engaged, married, or met the test for
                        common law marriage

   f) Breach of Fiduciary Duty: existence of a special relationship between parties may justify
      imposing a special duty on one of those parties to avoid hurting the other; nature of relationship
      based on trust and confidence and superior knowledge
      i) First Amendment issues/Freedom of Religion: no breach of fiduciary duty for priest who has sex
         with parishioner; court will not engage in entanglement in free exercise in religion to recognize of
         breach of fiduciary duty with respect to clergy and parishioners; no punishing for behavior that
         occurred because of religious position
         (1) Concern for unlimited liability for breach of general duty on part of all fiduciaries to refrain form
             sexual conduct
         (2) As to claim against second priest who disclosed the information in sermons and letters to
             parishioners

3) Independent cause of action?
   a) Texas: No general duty not to negligently inflict emotional distress; recovery only in connection with
      breach of some other legal duty
      i) E.g Boy taped himself having sex with partner; shows tape to 10 friends, word got around; negligent
          infliction of emotional distress because D’s homeowner’s insurance prevents recovery from
          intentional tort;
          (1) Dissent: treating dead people better than dead woman; (negligent mishandling of corpses;
              telegram regarding dead)

Limited Duty: Alcohol-Related Injuries
1) Dram Shop Acts: typically for vendors
   a) Serving alcohol to minors
   b) Or visibly intoxicated persons
   c) NY: limited to unlawful transfer of alcohol; courts have construed to applying only to the selling of
      alcohol

2) Social Host Liability: Expands liability to social hosts who serve alcohol to adult guest who is visibly
   intoxicated and host knows guest will soon drive be driving; host may be liable for consequences of
   drunken driving
   a) Forseeability; public policy of problem of drunk driving
       i) Considerations/limitations in situations: host not actually serving-open bar; also at a party situation,
           many guests
       ii) Concerns: slippery slope;

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            (1) commercial establishments usually have insurance, possibly training, better equipped to deal
                with situation (bouncers)
       iii) NJ legislatures’ response: exclusive civil remedy liability for host; presumptions based on blood
            alcohol levels

   b) Exercising Control Over Drunks (similar to voluntarily taking action)
   c) When, because of an employee’s incapacity, an employer exercises control over the employee, the
      employer has a duty to take such action as a reasonably prudent employer under the same or similar
      would take to prevent the employee from causing an unreasonable risk of harm to others
      i) Foreseeable: employee known drunk, concerned about P operating vehicles, heard about accident
         knew it was probably him; knew highway was congested

Torts Involving Conception, Pregnancy, Birth, and Adoption
1) Wrongful death for fetus: fetus was never a ―decedent‖ because was never alive; but mother can still sue
   for own injuries and father can sue for loss of consortium, NY Rule
2) Unwanted Pregnancy
   a) No recovery for normal healthy child rearing costs
   b) Speculative and violates public policy
   c) Benefits rule: costs of child rearing -benefits of child; but impossible to calculate ―benefits‖; benefits
       don’t always outweigh burden to rear a child
       i) Problems with Benefits Rule:
          (1) Serious psychological harm from parents making argument that child is a burden
          (2) Doctor as surrogate parent without any benefits
          (3) Possible limitless liability: contraception fails all the time
          (4) Don’t want to force parents to mitigate damages (avoidable consequences)

Torts Involving Conception, Pregnancy, Birth, and Adoption
3) Wrongful death for fetus: NY fetus was never a ―decedent‖ because was never alive; but mother can still
   sue for own injuries and father can sue for loss of consortium
4) Unwanted Pregnancy
   a) McKernan v. Aasheim; (Wash. 1984) Negligent sterilization operation resulted in unwanted pregnancy;
       parents sue for ordinary costs of rearing a normal healthy child
       i) No recovery for normal healthy child rearing costs
       ii) Speculative and Violates public policy
           (1) Benefits rule: costs of child rearing -benefits of child; but impossible to calculate ―benefits‖;
               benefits don’t always outweigh burden to rear a child
           (2) Serious psychological harm from parents making argument that child is a burden
           (3) Doctor as surrogate parent without any benefits
           (4) Possible limitless liability: contraception fails all the time
           (5) Don’t want to force parents to mitigate damages (avoidable consequences)

5) Wrongful birth and Wrongful Life and Damages
   a) Whether doctor violated duty test for and diagnose; to inform expectant mother about possible effects of
      child’s health
      i) Smith v. Cote; NH, 1986: cause of action for wrongful birth, but not wrongful life brought by child;
          damages only for extraordinary maternal care and child rearing costs;
      ii) Developments:
          (1) Easier to diagnose birth defects these days
          (2) Roe constitutional right to terminate pregnancy in first trimester: possible for her to take action to
              abortpermits wrongful birth action

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       iii) No cause of action for wrongful life: really a theological/philosophical question; subjective;
            problems with calculating damages; most courts refuse to recognize; public policy: rights of
            disabled: less valued life contradicts progress of disables rights

6) Pre-Natal Injuries and Wrongful Death
   a) Evidence of viability to be considered in allowing cause of action for wrongful death suit?
      i) Farley v. Sartin; W.Va. (1995); allowed cause of action regardless of viability; viability not the test;
           statute’s use of word person should be broadly contstrued
      ii) NY: wrongful death: not a person because not born alive;
      iii) Viable: cause of action:
   b) Possible to bring ED claim in the absence of physical or economic injurybecause duty to both fetus
      and especially to mother as patient
      i) Broadnex v. Gonzalez; (NY, 2004);
      ii) Problems with precedent of Tebutt: recovery only if fetus survives but if doctor kills childeven
           though greater injury no recovery

7) Wrongful Adoption
   a) Action for fraud lies where concealment/misrepresentation and reasonable reliance

DEFENSES:
1) Contributory Negligence
   a) Imputing to another?
      i) Father’s contributory negligence in not seeking alternative medical help; but not imputed onto son’s
          case
      ii) Because of son’s age and mental and physical condition caused by injury; minor can’t force minor to
          do anything

   b) Last clear chance: if D was a person who had the last least chance to prevent the injuryP can
      recover despite contributory negligence; P will recover fully; avoids harsh implications of
      contributory negligence
      i) Only in contributory negligence states

2) Comparative Negligence: NY
   a) Pure Comparative Negligence: recovery for % of fault not attributable to them
      P 60% liable, P’s damages: $10,000
      D 40% liable
      P recovers : $4,000
   b) Modified
      i) “Not as great as”
          (1) When both are 50% liableneither party recovers; winfall for insurance companies; juries likely
              to find a split
          (2) Under 50% P recovers; as long as P’s liability is not as great as D’s liability; Otherwise get
              portion not attributable to their own fault
                P: 60%
                D: 40%
                No recovery for P
      ii) “Not greater than”
          (1) When both 50% liableP recovers if her negligence was 50% or less;
          (2) when the P is 51% or more, no recovery for P
                P: 60%
                D: 40%
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               No recovery for P
c)   Contributory Negligence: judge made, but leg has gotten involved
d)   Assumption of the Risk
     i) Affirmative defense: must be pleaded and proved by D
     ii) D must prove:
         (1) P has knowledge of facts regarding the dangerous condition
             (a) Not a hidden danger, went up slide backwards saw teammate do it
         (2) P appreciates the nature and extent of the danger
             (a) E.g. carefully going up slide
         (3) P voluntarily exposes himself to the danger
             (a) Climbed up ladder herself
e)   Express Assumption of the Risk
     i) Release of liabilitymust provide specifically that a negligence claim would be released or words to
         that affect
         (1) Any vagueness in languagerelease will be construed against them
         (2) Sometimes releases void against public policy
         (3) No releases from malpractice
f)   Assumption of the Risk and Athletic Injuries
     i) Particularly if engaging in professional sports; very broad
         (1) Even for other kinds of injuries; slipping and falling on water because of a leak in the stadium
         (2) Statutes for skiing; help to protect ski lodges
g)   Professionals Engaged in Safety of the Public whose profession that involves large amount of risk
     i) Engaged in a profession that involves a large amount of riskif injured on the jobno negligence
         (1) Not foreseeable, worker’s comp, not a trespasser, no penalties exchanged for protection offered
             by firefighters

h) Comparative Fault:
   i) Whether doctrine of comparative negligence should merge with products liability
       (1) Concept of justice and proper compensation demand merger should take place; The court
           rejected the academic argument that the merger of the two concepts was prevented because of
           semantics. Comparative negligence would only reduce the award by the degree to which a
           plaintiff is contributorily negligent, and not the liability of a manufacturer of a defective product
           (juries have been doing it in maritime law for quite some time)
   ii) Not applied for intentional torts

i) Joint and Several Liability
   i) Joint tortfeasors: join enterprise (i.e. all dragracing) A20%, B50%, 30%
   ii) P has two choices:
        (1) P can sue A for 100% under joint liability, and then A must go over B and C for their shares; if
            any of the Ds are J proof;
        (2) Several liability: P can sue A,B,C all in one suit; if any of
            (a) Only severeal applied: when joint liability is not appropriate
   iii) Sometimes a burden shifting situation: if D has greater access to information (Ybarra)

j) Exacerbation of Injuries
   i) Newbury Rule: eggshell doctrine: pre-exting injury aggravated by a second injury
   ii) Concurrent injuries: injuries so close in time deemed to be concurrentjoint and several liability
   iii) Must apportion what is the percentage due to D1 and D2

k) Releases
   i) No unity of release: releasing one party does not release all
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            (1) Unity potentially shortchanges P or overcharges D
       ii) Common law: must have specific language stating intent; no so today
       iii) P only

   l) Collateral Source Rule
   m) Successive Tortfeasors
   n) Indemnification:
      i) Modern rules: implead in original suit and plead in alternative for contribution
      ii) Some jurisdictions: abolished indemnity – allow only for Contribution
          (1) But if both parties settled with P, neither party allowed contribution



Statutes: section 14 NY adopts comparative fault: 1975
1) Personal injury, injury to property, wrongful death, the culpbable consuct including any contributory
   negligence or assumption of the risk, shall not bar recovery, the amount of damages otherwise




Courts can determine how they are going to limit a holding when it considers precedent




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