Torts Outlin1

Torts Outline Professor Cochran I. Intentional Torts to the Person and to Property A. The Meaning of Intent 1. Ways Plaintiff Can Establish Intent a. Purpose b. Knowledge to a substantial certainty that an invasion of the protected interest would take place c. Transferred intent – if defendant intended an invasion which falls within one of the original trespass writ torts (battery, assault, false imprisonment, trespass to land, and trespass to chattels) and causes an invasion which falls within one of them, intent is established 2. Not a Limit on Intentional Tort Claim a. Age b. Extended consequences c. Insanity B. Intentional Torts – The Plaintiff’s Case 1. Battery a. An act; - Must be voluntary b. With the intent to cause a contact with a person which is harmful or offensive, or with the intent to cause the imminent apprehension of such contact; - Judged from the perspective of a reasonable person in the plaintiff’s shoes. c. Causing - Indirect causation is sufficient d. A harmful or offensive contact with the person - Contact with the person includes contact with something that the plaintiff is holding 2. Assault a. An overt act; b. With the intent to cause a contact with a person which is harmful or offensive, or with the intent to cause the imminent apprehension of such contact; Malice is not necessary c. Causing; d. A reasonable, imminent apprehension of such contact. - Actual ability to make contact not required, so long as apprehension is reasonable - Apprehension (not fear) is required. - No Apprehension for a third party 3. False Imprisonment a. An act; - No physical forces necessary, only that the plaintiff be physically restrained. A false imprisonment occurs when there is an intentional breach of obligation to take active steps to release plaintiff. b. With the intent to confine within boundaries; - Can be shown with substantial certainty. - Transferred intent applies c. Causing; - Use of threats, if D threatens to use force if P tries to escape and appears to have the ability to do so. - Threats to harm others count - Threats to property may cause the necessary duress - Threats must be imminent harm, no future threats d. The confinement of plaintiff within boundaries; - The restraint must be unlawful and against the person’s will. - Plaintiff must be held within certain limits, not prevented from entering certain places. - Means of escape must be reasonable e. Plaintiff’s awareness of the confinement [or plaintiff’s harm from such confinement – Restatement.] - A plaintiff’s present recollection of a previous consciousness of confinement is not required. Not remembering is not the same as saying he was unaware of the dignitary invasion when it occurred. 4. Intentional Infliction of Emotional Distress a. An extreme and outrageous act; - In the absence of a privilege, any conduct of D which exceeds the bounds of societal decency - Abusive language which causes mental anguish is not enough. D is not liable for mere insults - The relationship between the parties can make conduct extreme and outrageous - If the plaintiff is very young, retarded, or senile conduct might be outrageous even though it would not be so if the plaintiff were a normal adult. - Defendant’s knowledge of plaintiff’s sensitivity. Defendant must have been aware of these characteristics. b. Intentionally [or recklessly – Restatement] - D desires. - D knows with substantial certainty. - D recklessly disregards high probability. - The intent has to be for severe emotional distress, not just a little distress, to a reasonable person. To recover damages to a third person the plaintiff must show that the defendant reasonably anticipated mental distress would be inflicted on the plaintiff. Defendant must be aware of plaintiff’s presence - Transferred intent is not generally applicable. An exception to this is when D directs his conduct at a family member of the immediate family of P, and P is present, and the presence is known to D. c. Causing; d. Severe emotional distress - Plaintiff must show that the distress suffered by him was “severe” - At a minimum, the P must always show that his mental distress was sufficiently severe that he sought medical aid. - It must be such that a reasonable person would suffer such distress. If person is an unusually sensitive person there will be no recovery. Unless the D has knowledge of a special condition. 5. Private Nuisance a. An act; b. Negligently or intentionally; c. Causing; d. A substantial, unreasonable interference with the plaintiff’s use or enjoyment of plaintiff’s land. 6. Trespass to Land a. An act; - Every unprivileged entry onto the land of another is a trespass regardless of the amount of damages. - An action for trespass can be maintained without any proof of any actual damage. - When the trespass involves particulate matter or gasses, one must establish that they accumulated (they didn’t dissipate quickly) and that there was actual and substantial damages. If it dissipates quickly it constitutes a nuisance. b. With the intent to enter or remain on land; - Even if the decision to enter land was based on a mistake, and even if it was reasonable, there will still be intent if you are where you intended to be. Wrongfully remaining, it can occur if the D remains on the plaintiff’s land without the right to be there, even if she initially entered rightfully - Failure to remove, a trespass can occur if the defendant fails to remove an object from the plaintiffs land which he was under a duty to remove c. Causing; - D is liable for all injuries that result from his trespass, even the ones that are unforeseeable. - - d. The entry or remaining on land in which plaintiff has a possessory interest by the defendant, a third person, or a thing. - If an alien object disturbs the airspace reasonably close to the surface of the land then a trespass is deemed to have been committed. 7. Trespass to Chattels (D only has to pay damages, not the full value of the property) a. An act; b. With intent to affect a chattel; - It is unnecessary that the defendant had intended to cause harm to plaintiff’s interest in property. He must merely intend to do an act which turns out to constitute an interference. c. Causing; d. Damages to a chattel in which plaintiff has a possessory interest or loss of its use for a substantial time or injury to plaintiff or a person or thing in which plaintiff has a legally protected interest. - In order for a cause of action based upon trespass to chattels to be sustained, chattel owner must prove more than nominal damages to or intentional interference with the chattlel - Plaintiff is not entitled to nominal damages where he merely shows that defendant has touched his property. - A loss of possession for any time, no matter how brief will be considered to be actual harm. 8. Conversion (D may have to return property and damages, or pay the full value of the chattel) a. An act; b. With the intent to exercise dominion over a chattel; - an innocent mistake by the defendant as to the ownership of goods, will not negate the existence of the required intent. - However, innocent intentions may be a factor in determining whether the interference with P’s rights is so severe as to constitute conversion c. Causing; d. An interference with the right of the plaintiff to control the chattel; - Most courts hold that a bona fide purchaser of stolen goods is a converter. - Some states have held that he is not liable if he is willing to give back the goods. e. And the interference is so serious that the defendant may be justly required to pay the plaintiff the full value of the chattel. Any of the following may be of sufficient seriousness to justify this remedy: 1. The defendant’s exercise of dominion and control for a substantial amount of time 2. Substantial harm done to the chattel 3. Substantial inconvenience and expense cause to the plaintiff, or - 4. The defendant’s interest to assert a right that defendant knows is inconsistent with the plaintiff’s right of control Under rare circumstances, the defendant’s good faith may be a defense to an action for conversion. C. Privileges 1. Consent Implied Consent, objective manifestation. Consent may be implied from custom or circumstances. Silence and inaction may imply consent to defendant’s acts if the circumstances are such that a reasonable person would speak if he objected. An injury inflicted by one player upon another during sports may be held liable if the action was outside the rules of the game and outside the customs of what is normal and usual. Exceeding the scope of consent. If the defendant’s actions exceed the consent given, and he does a substantially different act than the one authorized, then he is liable. Unless it’s a life threatening emergency. - - 2. Self Defense - Anyone is privileged to use reasonable force to prevent any threatened harmful or offensive bodily contact, and any threatened confinement or imprisonment. - The defendant bears the burden of proof. (In some jurisdictions burden of proof is reversed if the defendant is a police officer. - Only reasonable belief is necessary. - Retaliation does not constitute self defense. - Provocation by words alone is not enough in almost all courts - D is allowed to use force that is, or appears to be reasonable. - To justify resistance with a deadly weapon, D must have a reasonable apprehension of loss of life or great bodily injury. D had burden of proof of showing it was reasonable. - Retreat. Most courts hold that you can stand your ground. A minority of courts require retreat if you can do it safely. - Transferred intent. The privilege is carried over. (Defending himself A unintentionally harms B. No liability to B) 3. Defense of Others - Subject to the same rules of self defense. - Reasonable Mistake. Some courts use “steps into the shoes” and can only use force if the person would have been privileged to. Other courts say there is a privilege even when he is mistaken as long as it was reasonable. 4. Defense of Property - - - Reasonable force Duty to use words: The owner must make a verbal demand to stop before force can be used. Exception is if it reasonably appears violence will occur immediately, or that the request to stop will be useless. No privilege exists to maintain a mechanical device which defends property by automatically inflicting serious bodily harm on the intruders. Dwelling Place. Deadly force is allowed when someone is breaking into a dwelling place and the owner is present. 5. Recovery of Property 6. Necessity Fresh Pursuit Reasonable Force, cannot be deadly. Self defense rules apply. Wrongful taking No privilege exists for mistake There is a shopkeeper’s privilege 1. Reasonable belief. 2. Limited time. Limited privilege, must be limited to a short time. Public necessity. 1. defendant does not have to pay for damage. 2. Defendant only has to believe its necessary Private necessity. 1. Compensation must be made. 2. The defendant must reasonably believe it is necessary. This forces the defendant to make a cost benefit analysis. 7. Authority of Law - Warrant arrest. - A police officer will be privileged if the court has jurisdiction to issue the warrant, formally complete and consistent, and the officer uses proper procedures in making arrest. - Officer will be liable for mistaken identity. - Arrest without warrant - May be made by a police officer or a citizen. - Felony or breach of peace in presence or reasonably appears about to be committed. - Past felony as long as the officer reasonably believes that the felony has been committed and that he has the right criminal. - Citizen arrest is valid only if a felony has in fact been committed, and he has reasonable grounds to suspect the person arrested. His authority depends upon the fact of the crime, and he must take full risk if none has been committed. - Misdemeanor. An officer or citizen cannot arrest without a warrant. Some states have allowed the officer to if it was committed in his presence. - Must be reasonable force, deadly force only when there is significant threat of death or serious physical injury to others 8. Discipline - Reasonable use of force. May not use more force than necessary to maintain the discipline. Factors to consider: severity of misconduct, age, strength, sex, etc. Motive of discipliner. Negligence Torts A. Duty – Part One 1. Persons not foreseeably injured - Majority rule (Cardozo) is you are not liable for harms that are unforeseeable - Minority rule (Andrews) is duty to all injured. B. Breach (Defendant was Negligent) 1. Negligence Factors and a Negligence Formula Liability Exists When: B (Burden) < Foreseeable risk = P (probability of loss) x L (amount of loss or injury) a. Foreseeable Probability of Injury - Negligence involves the creation of an “unreasonable risk, by act or omission, which a reasonable and prudent person in the circumstance would not create. b. Foreseeable Loss if injury occurs - As the anticipated injury increases in magnitude, the apparent probability of its occurrence needs to be correspondingly less to constitute negligence. c. Burden of safety (How related to a & b?) - There is a duty of care to protect others from harm when the burden of taking adequate precautions is less than the product of the probability of the resulting harm and the magnitude of the harm. 2. The Reasonable Prudent Person – The Standard of Care is founded on the judgment of the person of ordinary prudence, not the subjective judgment of the defendant, even though this judgment was based on an honest attempt to act reasonably. a. Custom - Evidence of custom and usage by people engaged in the same business is admissible as bearing on what is reasonable conduct under the circumstances - Custom does not completely define the standard of care though, the jury may only consider it. b. Emergency Situation II. An actor will not be held liable for injury to others if he acted in a way that an average reasonable person under similar circumstances would act. Still possible to be negligent. - If defendant caused the emergency it will not absolve him of liability. c. Physical Disability - The Standard of care applicable to handicapped persons is that which an ordinary, reasonable person would do if they were similarly handicapped. i. Voluntary or negligent intoxication is not legitimate disability. - Not negligent for sudden disability unless you know that you are subject to it. d. Youth - In general children are not held to adult standards of care in negligence actions, only what is reasonably expected from a child of his age. - When a child engages in an inherently dangerous activity that is normally pursued only by adults they will be held to an adult standard of care. - Dangerous but not adult: The courts are split. e. Mental Deficiencies - A person who is seized with a sudden mental disability for which he had no warning will be excused from the general rule of holding an insane person liable for his negligence. - One whose mental capacities are diminished, not amounting to total insanity, is capable of cont. neg. but is not held to the objective reasonable person standard. Rather, only to the exercise of such care as he was capable of exercising. - Defendant’s negligence – ordinary negligence (objective standard) - Plaintiff’s contributory negligence – subjective standard. 3. Malpractice – one holding himself out as an expert is held to the standard of the ordinary member of that specialty (minimum standard). a. Legal Malpractice - An attorney acting in good faith is not liable for mistaken advice in an area of unsettled law. - A lawyer is liable when the loss to his client is the proximate cause of a lack of knowledge and skill ordinarily possessed by others in the profession. Or omission of reasonable care or failure of good faith. b. Medical Malpractice - Defendant’s standard is that of the profession i. Depending on the jurisdiction 1. Within the local community 2. Within this or similar communities, or 3. A National Standard - ope of disclosure ausation Must be established by an expert unless the negligence is so grossly apparent that a layman would have no difficulty in recognizing it. - Informed Consent, to recover must show: i. The doctor failed to inform the person adequately of a material risk. ii. Had the person been informed he would not have consented to the treatment. 1. Some Jurisdictions require subjective and 2. some require objective Canterbury: Objective Scott: Subjective Traditional: Reasonable standard Standard Standard Measured according to what Measured according Measured according to what information is reasonable to particular patient’s physicians usually tell patients under the circumstances. need to know to make about a particular procedure. informed choice. Liability only if non-disclosure Liability exists if the Liability exists if disclosure of would have affected decision particular person MD fails to meet customary of a fictitious reasonable would not have standard for particular procedure. person consented to treatment iii. The non-disclosed risk did in fact occur. Exceptions of the duty to inform i. Risks are either already known or so obvious that they should have been known. ii. Full disclosure might be harmful, ex. Emotionally upset patient would be unduly alarmed or shocked iii. Where there is an emergency and patient is in no condition to decide for himself. 4. Sources of the Standard of Conduct a. Reasonableness determined by trier-of-fact b. Reasonableness determined by Judge as issue of law. c. Rule of law established by Appellate court Decision - Unless reasonable minds could not differ on the point, the standard by which negligence is to be measured if for the jury to decide. i. In the end courts must say what is required, there are precautions so imperative that even their universal disregard will not excuse their omission. d. Statute or regulation adopted by a court with no specific provision about civil liability. - Applies when: i. Victim is a member of the class of persons the statute was designed to protect. ii. Injury of victim must be of type statute designed to prevent. - Consequence of violating the statute i. Majority – unexcused violation of statute must be declared negligence - - ii. Minority 1 – violation of statute gives rise to presumption of negligence, which may be rebutted by legally sufficient excuse. iii. Minority 2 – Violation of statute is only evidence of negligence which jury may accept or reject as it sees fit. e. If a statute contains an explicit provision that their violation will give rise to civil liability the court has no choice. f. Excuses for violation of statute - Violation is reasonable because of actor’s incapacity - Actor is justifiably unaware of the need for compliance - Actor is unable after reasonable diligence to comply - Actor is confronted with an emergency not caused by his own conduct which makes it impossible to comply - Compliance would involve a greater risk to actor or to others. 5. Proof of Negligence a. Direct Evidence - Eye witnesses, etc. b. Circumstantial Evidence – In General - When a dangerous condition is out of ordinary, plaintiff must prove either that: i. Defendant placed item creating danger, ii. Defendant had actual notice, or iii. Defendant should have known of danger (constructive notice) - No liability for slipping on banana peel on platform which contained many passengers because none of the three notices evidenced - Liability can exist for slipping on a black flattened banana peel because there could be constructive notice that peel had been on platform long enough for Defendant to know about it. - When the operating methods of a proprietor are such that dangerous conditions are continuous or easily foreseeable, conventional notice requirements need not be met. c. Circumstantial Evidence – Res Ipsa Loquitur (How can plaintiff establish breach when he does not know what Defendant did?) - Elements: i. Accident of kind that does not ordinarily occur in absence of negligence 1. Plaintiff establishes by expert testimony or common knowledge that it is reasonable to assume that it is more likely than not that defendant was negligent. ii. Is it reasonable to conclude that defendant was negligent? (Modern View) 1. The old rule is that the defendant had to be in “exclusive control” of the thing. iii. Plaintiff was not himself negligent (Minority Rule) - Exception: Medical negligence with doubt to defendants liability. - i. Where an unexplained injury occurs during a medical procedure to a part of the body not under treatment, res ipsa loquitur applies against all of the doctors and medical employees who take part in caring for the patient. ii. Not usually applied outside the medical field because no overriding employer exists, each defendant acts independently of the other. iii. Policy consideration: to smoke out offender, obviously the medical personnel would keep silent to avoid implicating one of their members. Effect of res ipsa loquitur – merely affords reasonable evidence in the absence of an explanation. The jury may still refuse to make a finding of negligence. i. View # 1 (Majority) RIL meets burden of production by creating inference of negligence, but P still bears the burden of persuasion to convince jury of defendant’s negligence by preponderance of evidence. ii. View # 2 Creates a presumption of negligence and shifts burden of production to defendant which he can meet simply by rebutting the presumption. If rebuttal offered, plaintiff then has burden to convince jury of defendant’s negligence by preponderance of evidence. (If no rebuttal, negligence established as matter of law). iii. Burden of production and persuasion shifted to Defendant in presumption of negligence with burden to show by preponderance of evidence that injury was not caused by his negligence. Defendant must not only rebut presumption, but do so with a preponderance of evidence. C. Cause-in Fact 1. The “Without Which Not” test a. Do not need to prove to absolute certainty that the injury wouldn’t have occurred. Only that it is probable that the injury would not have occurred without the defendant’s act. b. The loss of a chance to live. In some courts, % lost x value of life. c. Proof may require expert testimony if beyond the understanding of the ordinary person. - Frye test – Scientific evidence admissible if it is based on a scientific technique generally accepted as reliable within the scientific community. (Still followed in many states) - Daubert (federal rule) – admitted if i. it is a matter of “scientific knowledge” that will assist the trier of fact – FRE 702. ii. Trial judge considers whether tested, subjected to peer review, published, and whether studies created independent of preparation for the litigation. 2. Exceptions to “Without Which Not Test” a. Loss of a chance to live. Damages = % reduction in chance of survival x Value of life. - If original chance of survival before encounter with actor’s negligence was higher than 50% then actor may be liable for full damages. b. Twin Fires – If either of two causes would have independently caused the loss, plaintiff may merely prove that defendant’s negligence was a substantial factor in plaintiff’s loss c. Twin Guns – If either of two negligent causes could have caused the loss, shift burden to each defendant to show that he did not cause the loss. If burden not met, joint and several liability. d. Enterprise liability – Small number of alternate negligent causes, all before the court, and delegation of safety standards to a trade association. Shift burden of proof regarding cause in fact. If burden not met, joint and several liability. e. Market Share liability – large number of alternate negligent cases and manufacturers of a substantial percentage before the court. Each is liable for its market share times the plaintiff’s total damages. 3. Multiple Causes, Generally – When separate acts of negligence combine to produce directly a single injury, each tortfeasor is responsible for the entire result, even though his act alone might not have caused it. D. Proximate Cause 1. All jurisdictions Accept: a. Egg Shell Skull – defendant takes the plaintiff as he finds him. Once plaintiff suffers any foreseeable injury, defendant is liable for any additional unforeseen physical consequences. b. Foreseeability View – makes defendant liable only for the consequences of his negligence which were reasonably foreseeable at the time he acted. - The foreseeable cause must be an actual harm not just an economic harm. - However, if there is direct injury and economic injury the plaintiff may recover for both. c. Foreseeable injury that happened in an unforeseeable manner. Must be the kind of injury foreseen. 2. Direct Causation view – holds that defendant is liable for all consequences of his negligence, provided that the stage is set and no superseding causes are involved. May provide limitless liability. 3. Intervening Causes – not superseding if the risk is foreseeable. If it is unforeseeable and extraordinary it is superseding. a. Examples of non superseding causes b. Rescuer not superseding when: - D’s negligence to one person and caused peril or appearance of peril rescued. - Peril or appearance of peril imminent. - Reasonable person would have concluded such peril or appearance of peril existed, and - Rescuer acted with reasonable care. c. Second Accident - Second injury caused by weakened or dangerous condition resulting from first injury is foreseeable intervening cause. d. Escape - Attempted escape is a foreseeable intervening cause, making defendant who caused danger liable for resulting injuries. e. Doctor’s Negligence - Patient’s response/conduct resulting from negligence of Doctor’s instruction is foreseeable intervening cause. i. Ex. MD gives script to patient without warning of drowsiness; patient driving while drowsy was foreseeable intervening cause. f. Economic Damage Alone – economic damage alone is not recoverable unless it is accompanied by some physical injury. g. Criminal Act - Traditionally, malicious and wanton acts and criminal acts were not foreseeable and therefore superseding. - The trend in certain circumstances is not to make it a superseding cause. h. Social Host serving alcohol - The Majority says that it is a superseding cause unless it was a minor that was served. Commercial dispenser liable for consequences of all intoxicated guests whom they serve. - The Minority claims that it is not a superseding cause. A social host who knowingly serves liquor to intoxicated guest who she knows will be driving is liable for injury resulting. Host must show reasonable care to prevent scenario. i. Suicide - Majority says it is a superseding cause. - Minority says suicide by an “irresistible impulse” is not superseding cause if: i. Person did not knowingly control or commit suicide but succumbed to foreseeable injury. E. Duty – Part Two 1. Failure to Act a. General rule is that a Bystander has no duty to take an affirmative action to aid a plaintiff, unless the Bystander: - Has a special relationship with the plaintiff, requiring him to exercise affirmative care to protect Plaintiff from harm – relationship of dependence. Examples: i. Business invitee and their host ii. Employer and employee, when acting in course of employment iii. Teacher and students. iv. Common carrier and passenger v. Temporary legal custodian and ward vi. Husband and wife; parent and child b. L.S. Ayers v. Hicks: kid fell on escalator and got hand stuck; store owner was not negligent in operation or installation of escalator, but was negligent in unreasonably delaying to stop escalator, thus aggravating injury. Rule: An invitor or one who has control of an instrumentality has the legal obligation to aid a helpless person, even if he did not cause the original situation that the helpless person finds himself in. c. Defendant has a duty to take affirmative steps to rescue if he or his instrumentality creates a dangerous situation or injures plaintiff. Even if they were not negligent. - If you hit a cow in the middle of the road you cannot just drive off and leave it there. You have a duty of taking reasonable steps toward trying to correct it. d. Voluntarily Begins Aid, then he must exercise reasonable care to aid. - Duty can terminate as long as you don’t leave injured person in worse condition. - Under common law a doctor is not required to act, but once you do act then you can be subject to liability. - You must use reasonable care e. Promises Aid on which the plaintiff relies to his detriment (personal injury). - Ex. Woman who relied on promise of sheriff to warn her of the release of dangerous inmate whom she had testified against; sheriff did not inform and the woman was killed. f. Special Relationship with one who causes the injury, requiring him to use reasonable care to control actor’s conduct and prevent injury to others, when he is aware of the potential danger – relationship of control. Ex. - Parents of dangerous children - Persons taking charge of lunatics or criminals - Wards with contagious disease. - Wife to girls spending time with known sexually abusive husband. i. The parents of two girls brought suit against their neighbor and his wife, seeking damages based on his sexual abuse of their daughters. 1. When a spouse knows or has reason to know, the spouse has a duty to warn of the harm. - CA: psychiatrist (attorney) to warn potential victim, when patient expresses intention to harm an identifiable victim. 2. Mental Harm Alone – No duty to those who suffer mental harm alone, unless: a. Physical Contact + Physical Consequences (largely left behind) b. Objective Physical Manifestations of injury (Majority) - Plaintiff may recover where a definite and objective physical injury is produced as a result of emotional distress proximately caused by defendant’s negligent conduct. Measured by reactions to be expected by a normal person absent specific knowledge. Nervousness seems to be enough. c. Severe distress + high likelihood of severe distress given the defendant’s actions (Minority) - Allows recovery if there was severe distress + a high likelihood of the distress occurring from the conduct. 3. Severe distress to a third person (must still meet one of above requirements and one of the following). a. In New York there is no recovery allowed for a case like this. b. Zone of physical danger rule – if you yourself are within the range of physical danger then you can recover for the emotional distress of seeing someone else injured. c. Loss must be foreseeable (direct victims) - Wife negligently diagnosed with syphyliss; MD advised plaintiff to have husband tested; resulted in a divorce. Husband allowed to recover because it was foreseeable d. Loss must be foreseeable, plaintiff must suffer shock from contemporaneous observation, and plaintiff must be closely related to third party. - Mother who did not see her son involved in a car crash was denied recovery because she didn’t contemporaneously observe it happen and suffer from shock. 4. Unborn Children a. Former Rule: No duty to unborn children, but there are modern exceptions b. Injury to fetus, later born alive – duty of reasonable care to child/parents. c. Wrongful death of Fetus – duty of reasonable care to parents. - Duty extends to: i. Majority: Viability (capable of surviving outside the mother) ii. Minority: Conception iii. Minority: Birth 1. Mother injured in car accident denied recovery for still born twins. Rule: Parents of an unborn fetus whose birth was prevented may not bring a wrongful death action to redress the wrong which was done. d. Wrongful birth: Negligence action brought by PARENTS for birth of disabled child - Majority – Parents can recover for extraordinary expenses. - Minority – Extraordinary expenses plus emotional distress. - Minority – No Recovery. e. Wrongful Life: Negligence action brought by disabled CHILD for his own birth. - Majority: No recovery - Minority: Child can recover extraordinary expenses i. An infant plaintiff may recover special damages for “wrongful life” but may not recover general damages therefore. 5. Owners and Occupiers of Land (Majority Rule) a. Adult Trespassers General Rule - No Duty (in negligence) b. Known Trespassers, Trespassers in frequented areas, Licensees (1. People permitted on your property for their business purposes, 2. Social guests, 3. Police and Fireman) - Active Conditions i. Majority – Reasonable care ii. Minority – avoid recklessness. - Passive, concealed, dangerous conditions (trap) of which owner is aware i. Duty to warn. - Obvious, passive dangers i. No duty. c. Business Invitees - Duty to exercise reasonable care (also affirmative care) d. Minority: Several jurisdictions require reasonable care to licensees as well but not trespassers. e. California Minority: reasonable care to everyone. F. Negligence Defenses Based on Plaintiff’s Conduct 1. Plaintiff’s Negligence a. Contributory Negligence - A plaintiff will not be able to recover where his lack of care contributed to the occurrence of the accident - Last clear chance doctrine: plaintiff’s negligence has put him in a dangerous position, and defendant discovers plaintiff’s danger and fails to use due care to avoid injuring the plaintiff, plaintiff’s negligence will not bar his recovery. b. Comparative Negligence - Pure Comparative negligence: The plaintiff is allowed to recover even if his fault is greater than the defendants but only to the extend that the defendant was negligent. - 50 percent Systems: Majority of states bar recovery when the plaintiff’s negligence is as great as the defendant’s. - The remainder bar recovery when the plaintiff’s negligence is greater than the defendants. Allows for 50-50 recovery. c. Failure to Take Advance Precaution Against Extent of Injury. - P negligently fails to wear his seatbelt and is more seriously injured than he would have been had he worn it. i. Restatement says unless there is a statute precluding consideration, such conduct should be taken into account in assigning percentage of fault. ii. A minority but increasing amount of states have adopted this logic and reduce the plaintiff’s damages in some way to reflect the fact that the plaintiff’s injuries would have been less.