TORTS -- MASTER by mrdildine

VIEWS: 1,287 PAGES: 36

INTENT The Meaning of Intent ◘ Ways Plaintiff Can Establish Intent: 1. PURPOSE
--- An act of volition purposed to cause harmful/offensive contact

---Garrett v. Dailey: Judge establishes knowledge of boy via timeline of event in pulling of chair out from under old lady.

--- Transferred from victim to victim if both intention and invasion fall within one of the original trespass writ torts: battery, assault, false imprisonment, trespass to land, and trespass to chattels. --- Talmage v. Smith: Land owner throws rod at trespassing kids on shed and hits boy standing on ground by shed. *Does not have to intend to harm.

◘ Excluded Limits on Intentional Tort Claims 1. Age
---Garratt v. Dailey: Eight year old boy is liable for his tort.

2. Extended Consequences
--- “Extended consequences rule” : Actor is subject to liability for all resulting injuries even if they go beyond what a reasonable person would anticipate. Does not have to intend to harm. --- Vosburg v. Putney: Kick in leg “lights up” infection.

3. Insanity --- McGuire v. Almy: Crazy lady wacks nurse with lowboy leg.
i. The Harm of Act:  Intent to harm defined from perspective of a reasonable person in the plaintiff’s shoes.  Vosburg v. Putney (schoolboy kick)


1. An violable act, a. It cannot be just the act; it has to be act coupled with something that makes it wrong. b. An act of battery has top have a purpose. It cannot be done on accident. c. Act has to be done voluntarily and not as a reflex or involuntarily 2. 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, a. In order for battery to be established actor must act with knowledge on the part of the actor that such contract or apprehension is substantially certain to be produced --- Offensive contact: Contact which a reasonable person in the plaintiff’s shoes would find to be offensive. Surrounding circumstances, including words spoken, can aid jury in determining offensiveness. 3. Causing, --- Indirect causation is sufficient. Once it has been established that someone intended a tort, once that tort has been done, the person is liable for the extended consequences resulting from injury. Note: it is not intent to cause injury; it is intent to invade security. in order to commit battery the person has to be culpable


4. A harmful or offensive contact with the person. ---Contact with the person includes contact with something that the plaintiff is holding. If it is done in an offensive manor it can be a battery. It is contact that is offensive from a reasonable sense of personal dignity. ---Fisher v. Carrousel Motor Hotel: Anything grasped in one’s hand can be considered part of the person. [Transferred intent applies to battery]

1. An over act, --- Open to plaintiff; not just words alone or hidden behavior. However if the words bring in past actions that can make the words more real then they might be an assault. (Ex. Bringing a gun in one’s pocket to a meeting is not assault). 2. 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,


--- It is not necessary that the defendant actually be able to carry out the act. What matters is if a person in the P shoes would have a reasonable apprehension of the act. 3. Causing, 4. A reasonable, imminent apprehension of such contact. --- Not just fear, but anticipation. --- Western Union Telegraph v. Hill: Clock repair man reaches across counter in sexual advance at female customer. Jury issue: Could he have reached over counter and touch her? Actual issue: Could plaintiff have experienced a reasonable apprehension of contact?

---An omission to act can fulfill element, as long as there is a duty to act, which can be created by an agreement (Whittaker v. Sanford: transport of woman from Tel Aviv to USA by cult leader) or by status relationship (Ex. Person in control of premises has duty to act over other individuals in building.). ---Duty to act can be superseded by reasonableness of omission (Ex. Airlines do not have to stop planes on tarmac to let off passengers).

2. With the intent to confine within boundaries,
--- Confinement can be established by the plaintiff’s reasonable belief that he cannot leave. (Hardy v. LaBelle’s Dist. Co.: Sales clerk kept in office to determine innocence in case of a missing watch.) ---Fear, desire to clear name, risk of loss of job, a threat to call police, submission to persuasion, and a threat of future action are usually not sufficient to establish false imprisonment. If there is reasonable or safe escape then there is no FI. The P has to be aware of confinement. Boundaries do not have to have walls. Freedom must be restricted not mere inconvenience.

3. Causing, 4. The confinement of plaintiff within boundaries, --- Restatement 36: Means of escape is unreasonable if it involves exposure of the person, material harm
to clothing, or a danger of substantial harm to another.


o With Which Not Test -- Without the actions of the (D) I would not have suffered this harm. Whitaker v. Sanford – Woman trying to get out of cult accepts boat ride form cult leader. He parks the boat off shore and would not let her off. His omission held him liable because he did not give her an adequate way to get to shore.

5. With Plaintiff’s awareness of the confinement OR plaintiff’s harm from such confinement. --- Parvi v. City of Kingston: Drunken men left on public golf course to dry out, Rule: It does not matter
whether a plaintiff can later recall the experience, as long as victim is aware of imprisonment at time it is happening. Intent aspect- it is only necessary for the plaintiff to prove that the defendant had the purpose to confine him or her, or that the defendant was substantially certain that his conduct would cause confinement; motive is irrelevant

---Court must determine whether an average member of the community upon learning of the facts alleged by plaintiff would exclaim, “Outrageous!”

---Plaintiff’s sensitivity may be factor in determining whether defendant’s conduct is outrageous. Is
insult from girl to Marine?

2. Intentionally or recklessly,
---INTENT is calculation to cause severe emotional distress to a person of ordinary sensibilities in the absence of knowledge or notice of special sensitivity in Plaintiff; ---Slocum v. Food Fair Stores 1958: Store owner not held liable for heart attack of employee, which she claimed was triggered by emotional distress the boss caused her when he insulted her work. No liability because boss had no knowledge of her heart condition and no intent to cause severe emotional distress. ---RECKLESSNESS is calculation to cause severe emotional distress to a person of ordinary sensibilities with the knowledge or notice of a special sensitivity in Plaintiff; ---Exception to intent requirement in common law: recovery allowed against acts of common carriers without regard to intent or harm.


---Special requirements for intent when victim views an act against another (Exception exists in acts which are extremely outrageous, such as mutilating the dead):  Plaintiff must be family member of the injured,  Plaintiff must be watching when injury occurs, and  Defendant must know plaintiff is watching when act occurs.

3. Causing,
--- Harris v. Jones: Stuttering employee ridiculed by boss and others to point of increasing previous nervous condition. Case for emotional distress dismissed because of failure to prove that particular actions of Defendant caused emotional response of Plaintiff, even though boss had knowledge of special sensitivity.

4. Severe emotional distress.
--- State Rubbish Collectors v. Siliznoff 1952: F: Plaintiff threatened physical threat on Defendant for payment of union dues. In contrast to previous Restatement provisions, Siliznoff court holds Defendant liable for cause of fright only, not requiring any resulting bodily harm.

TRESPASS TO LAND 1. An act; ---Restatement Second 165: Trespass is invasion of interest in right to exclusive possession of

---Must be TANGIBLE ITEM for trespass. Intangible items are nuisance.
---Bradley v. American Smelting Co. 1985: Landowners around refinery sue for trespass of airborne particles of heavy metals. Court rules particles which accumulate on land and remain are trespass; but in this case, landowners must prove actual and substantial damage to recover so that refinery will be protected from potentially rampant claims.

2. With the intent to enter or remain on land;
---STRICT LIABILITY ACT: Every unauthorized and therefore unlawful entry into the close of another is a trespass. Intent is just to be on the land. ---Doughtery v. Stepp 1835: Defendant came onto Plaintiff’s land with means to survey it, claiming that the land was his own. Trial remanded to determine damages, even though no harm done to land. ---Rogers v. Board of Road Com’rs 1947: Anchor of snow fence left on Plaintiff’s land past its agreed welcome; Plaintiff’s husband killed when tractor hits fence. Rule: Trespass is not vitiated by initial consent of owner to entry or remaining on land. Also, because this is intentional tort, extended consequences rule applies-holding Defendant liable for harm which he could not have foreseen.

3. Causing;

4. The entry or remaining on land in which plaintiff has a possessory interest by the defendant, a third person, or a thing. ---“Land extends in indefinite extent upwards as well as downwards.” Owner of realty is entitled
to free and unfettered control of his land, above and below. ---Herrin v. Sutherland 1925: Defendant liable for firing bullet across Plaintiff’s land; bullet was tangible item, crossing area under interest of Plaintiff. ---Exception with regard to air travel: (Restatement Second 159) air travel is trespass only if it enters into immediate reaches of air space next to land and interferes substantially with the others’ use and enjoyment of land.


2. Negligently or intentionally;
---Different culpability requirement from trespass---not strict liability!!!

3. Causing; 4. A substantial, unreasonable interference with plaintiff’s use or enjoyment of plaintiff’s land.
---Must prove substantial interference---unlike trespass, not just any entry will do!!! ---Special factors employed in determining reasonableness: * Social use of land or action of defendant * Who was there first?

TRESPASS TO CHATTELS 1. An act; 2. With intent to affect a chattel;
---STRICT LIABILITY as in trespass to land, no room for negligence.

---Glidden v. Szybiak 1949: F: Dog bites girl on nose in front of candy store. If someone else’s dog
causes damage to you or your property, owner is liable as long as you were not in commission of trespass or other tort.


3. Causing;
Liability for intentionally intermeddling with chattel of another if: -- dispossession another of chattel -- chattel is impaired in its condition, quality, or value, OR -- possessor is deprived of the use of the chattel for a substantial period of time, OR -- bodily harm is caused to possessor

4. Actual damages to a chattel in which plaintiff has possessory interest, or Loss of its use for a substantial time, or Injury to plaintiff/person/thing in which plaintiff has a legally protected interest. ---Measure of damages = diminution in value of chattel, plus chattel returned.
---Compuserv v. Cyber Promotions 1997: Trespass to chattel found in spam causes damaging interference with Compuserv’s file service, costing subscriber’s money. * the difference between trespass to chattels and trespass to land is that you have to show the damage in chattels. CONVERSION {THIS IS ALL ABOUT WRONGFULNESS}

1. An act;
Used when a defendant completely dispossesses the plaintiff of an interest in personal property a defendant need not physically damage a plaintiff’s property to convert it court have allowed a plaintiff to recover the full value of converted property even if the defendant has not damaged the property

2. With the intent to exercise dominion or control over a chattel; 3. Causing; 4. An interference with the right of the plaintiff to control the chattel;
---Unlike trespass to chattel, conversion requires only interference with nominal damages.

5. 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:

   

The defendant’s exercise of dominion and control for a substantial amount of time, Substantial harm done to the chattel, Substantial inconvenience and expense cause to the plaintiff; or The defendant’s intent to assert a right that defendant knows is inconsistent with the plaintiff’s right of control.

---Measure of damages = value of the whole or return of chattel.
---Pearson v. Dodd 1969: Senator’s papers taken from office, copied, and returned; info on papers given to reporter. No damages for conversion, because files not kept, just copied and ideas on paper were not type protected by property law (info gathered at some cost and sold as commodity, ideas formulated with labor and inventive genius, or info which is instrument of fair and effective commercial competition).

* Defendant’s good faith, under rare circumstances, may be a defense to conversion. * Only way to have conversion w/o trespass to chattels = exercising dominion w/o damage.


Types of Consent: 1. EXPLICIT CONSENT
If plaintiff signed a waiver, then explicit consent. Or if you tell someone they have your consent. For example the guy in the snow fence case gave his consent for the pole to be in his yard.

If plaintiff’s overt acts and manifestation of feelings would indicate consent to a reasonable person in the defendant’s shoes, then defendant was justified in his act. ---O’Brien v. Cunard S.S. Co. 1891: Plaintiff received vaccination on ship which caused ulceration and bleeding; alleged assault, but not allowed recovery because she stuck her arm out and received the shot without protest, after informing doctor she had already been vaccinated. If intentional conflict falls within expected contact of plaintiff, there is no liability. ---Hackbart v. Cincinnati Bengels 1979: Plaintiff struck intentionally in back of neck by another player in NFL game; no recovery unless there is intent to act outside the rule or custom of the game.


Consent of patients are implied when patient is unable to give consent, there is a risk of serious bodily harm if tx is delayed, a reasonable person would consent to tx under circumstances, and particular patient would consent to tx under circumstances. ---Mohr v. Williams 1905: Plaintiff agreed to surgery on right ear; after put under anesthesia, MD finds left ear needs work, so he fixes it at no harm to patient. Patient charges assault for breach of personal autonomy. Best argument of MD: consent implied because of great risk in pulling patient out of anesthesia to ask consent and then put back under.

FACTORS WHICH NEGATE CONSENT: * FRAUD – explicit misrepresentation, implied misrepresentation, or mistake made by plaintiff to
knowledge of defendant.

* INCAPACITY—age (A child can consent to a contact of international tort, if able to appreciate the
nature or consequences of the act.) or mental capacity (Liability only if able to understand nature and probable consequences).

* DURESS * VIOLATION OF POSITIVE LAW – Defendant’s act must be lawful for consent to be valid defense.
---Hart v. Geysel 1930: Plaintiff is administrator of estate of decedent who was killed by blow in an illegal prize fight. Majority view: When parties engage in mutual combat in anger, each is civilly liable to other for any injury inflicted during fight—consent is no defense. Minority view: When parties engage in mutual combat in anger, act of each is unlawful and relief for injury is denied unless as a result of excessive force. Court holds minority view. ---Restatement view: Plaintiff’s consent will be nullified if defendant’s conduct violated a criminal statute designed to protect a class of persons to whom the plaintiff belongs.

SELF-DEFENSE Anyone is privileged to use reasonable force to defend himself against a threatened battery on the part of another. Elements: RETALIATION --Privilege of defense against threatened battery; when battery is no longer threatened, privilege terminates. REASONABLE BELIEF

--Defendant must reasonably believe force is necessary to protect him against battery, even though there is in fact no necessity. * Reasonable mistake on part of actor will protect him. PROVOCATION --Oral abuse and overt hostile act, reasonably warranting an apprehension of imminent bodily harm. AMOUNT OF FORCE --Use of force must be limited to that which reasonably appears to be necessary for protection against a threatened battery; differences in age, size, and relative strength may be considered. RETREAT --Importance of dignity and honor of individual usually upheld over requirement that plaintiff retreat as far as possible. You cannot shoot someone in the back as they are running away. INJURY TO THIRD PARTY --Self-defense transfers with intent as long as there is no negligence on part of defendant.

DEFENSE OF OTHERS Self-defense extends to third persons when force used is reasonable. Reasonable mistake of defendant: various jurisdictional views * Intervener steps into shoes of person defending and is liable to privileged only when that person would be privileged. * If intervener aids aggressor, he is liable. * Defendant is privileged to defend another even when he is mistaken in his belief that intervention is necessary, as long as mistake is reasonable. DEFENSE OF PROPERTY

The value of human life and limb outweighs property interest of exclusion. There is not privilege to use death of great bodily harm against another who is seen just entering one’s land or meddling with one’s chattel, unless the trespasser is threatening death or great bodily harm to property owner.
---Katko v. Briney 1971: Defendant set spring gun in abandoned house in front bedroom in response to repeated trespassing. Plaintiff breaks into house and loses part of leg when shot. Holding: you can’t set a device to do what you couldn’t do in person—defend property with use of potentially deadly harm.

RECOVERY OF PROPERTY Limitations: * Requires prompt discovery of dispossession and persistent effort to recover chattel. * Force must be reasonable to circumstance; serious bodily harm not included. * Defendant must first make demand for property, unless such demand reasonable appears to be useless. * Loss due to reasonable mistake must fall on one who makes it.
---Hodgeden v. Hubbard 1846: Store owner acts promptly to get back stove ―bought‖ by plaintiff with no credit; though store owner was original aggressor in recovering stove, plaintiff drew a knife, justifying store owner’s holding him by force. ---Bonkowski v. Arlan’s Dept. Store 1968: If store owner reasonably believes patron shoplifted something, he can conduct reasonable investigation, even if search turns up nothing and his suspicion was a mistake.

RE-ENTRY UPON REAL PROPERTY ―Forcible entry and detainer‖ – rightful owner can retake possession of his land only if he does not use force. Peaceful possessor may have claim for assault and battery for trespass to goods upon forcible entry by owner or for intentional infliction of emotional distress if owner’s entry is outrageous or extreme. NECESSITY PUBLIC NECESSITY Private rights of individual must yield to considerations of general convenience and interests of society. Compensation is not required. Defense available if: (1) Destruction is in fact needed AND, (2) If actor is public official, he must believe destruction needed; OR, if actor is private citizen, he must reasonably believe needed.

---Surocco v. Geary 1853: Defendant blew up house to stop spread of fire in San Francisco; but fire spread beyond plaintiff’s house. Plaintiff not held liable because of public necessity. Policy: to support action of city official in abating nuisance.

PRIVATE NECESSITY A person is entitled to use of property of another to protect his own, but must pay for damages. Private rights of individual which are taken are not abandoned—damages must be compensated.
---Vincent v. Lake Erie Transp. Co. 1910: Defendant tied his ship to plaintiff’s deck during storm which prevented him from leaving the harbor. Plaintiff held the boat throughout the storm, inflicting damage to his dock to save the boat. Defendant must pay, because he availed himself of plaintiff’s property for preservation of his own more valuable property.

AUTHORITY OF LAW If defendant is duly commanded or authorized by law to do what he does, he is not liable for doing it. DISCIPLINE Relationships in which necessity of some orderly discipline gives person of control the privilege of exercising reasonable force and restraint over the other.

Failure to conform to a reasonable standard of care Determining reasonable standard of care: HAND FORMULA Liability exists when: B (BURDEN) < FORSEEABLE RISK = P (PROBABILITY) x L (LOSS OR INJURY). - IF THE BRUDEN TO WARD AGAINST SOMETHING OR MAKE A CHANGE IS LESS THAN FORSEABILITY AND THE


Blyth v. Birmingham Waterworks Co. 1856: Water main installed by Defendant 25 years prior to it breaking and flooding in extremely severe freeze. Rule: A reasonable man would have acted in reference to average temperatures, not accounting for extreme frost. Injury was not foreseeable.

Gulf Refining v. Williams 1938: Appellant distributed a drum of gasoline to farm, which had a cap in disrepair that sparked explosion when farmer opened it. Rule: Potential danger was great, and even though probability of injury was small, Defendant was liable.

What would it take to make things safe? Elements in determining burden of safety: character and location of premises, purpose of premises, probability of injury there from, precautions necessary to prevent injury, and relation such precautions bear to beneficial use of premises.
Chicago, B + Q RR v. Krayenbuhl 1902: Kid gets foot cut off when playing on RR turntable which had defective lock. Rule: When reasonable means to reduce danger exist, which would not interfere with benefit provided by the machine, they should be employed. Burden small. - the more serious the injury, the less likely it has to be to occur for liability to be found. U.S. v. Carroll Towing Co. 1947: After its mooring lines were shifted, ship drifted into tanker and tore whole. Rule: Because many barges were in area, ships fastened in haste, and towing company working quickly, probability for drifting was high. Burden small: leave attendant on ship to respond in case of drifting. Note: there could be an exception if the alternative might cause harm to a third party or the defendant. i.e. train example where conductor stopped the train at a slower pace and hit a car so not to hurt passengers.

REASONABLE PRUDENT PERSON Objective standard of reasonable care; unlike subjective standards of intent and perceived intent which characterize intentional torts. - Question of the
jury in negligence: “Would a reasonable person or ordinary prudence, in the position of the D, have conducted himself as the D did?”

♦ CUSTOM May be admitted as evidence of standard of care; but jury must still decide if custom is evident and reasonably applicable.

If Defendant has complied with custom, he will introduce it is as evidence of reasonable standard of care; if Defendant has not complied with custom, Plaintiff will introduce it.
Trimarco v. Klein 1982: Shower glass door; standards of care—federal government releases pamphlets on danger of glass doors and local building industry established pattern of replacing doors in tenant’s homes for safer materials.

♦ EMERGENCY SITUATION Emergency—a sudden, dangerous, unexpected situation; does not excuse all negligence, but reasonable prudent person is considered in same situation as actor.
Cordas v. Peerless Transp. Co. 1941: Cab driver jumped out of moving cab when threatened by passenger with gun; cab rolled into sidewalk injuring mother and child. Rule: what would be negligence in a normal situation may not be when actor responds to an emergency, not of his own making. Who can be wise and amazed in a moment?

♦ PHYSICAL DISABILITY Handicapped person must take precautions, be they more or less than non-handicapped actor, which an ordinary reasonable handicapped man would. Exception: Voluntary or negligent intoxication is not legitimate disability.
Roberts v. Louisiana 1981: Old man runs into blind man, walking without his cane to restroom. For Defendant—argues custom of other blind people in his situation who do not use canes in familiar locations to evidence reasonable blind man standard of care. He is held to the reasonable standard of a blind person. A blind person would act as he had.

♦ YOUTH General standard of care: what is reasonable to expect of children of like age, intelligence, and experience. [Note: someone driving down a street that has a lot of kids has a duty of care since we know that kids do not always pay attention.] Common Law Age Restrictions on Negligence Claims
Age 1-7 Incapable of negligence Age 7-14 Presumed incapable, but may be proven capable Age 14-17 Presumed capable, but may be proven incapable.

Exception: When activity child engages in is inherently dangerous, as operation of powerful mechanized vehicles, child should be held to adult standard of care. i.e if the child operates a snowmobile he could be found negligent.

♦ MENTAL DEFICIENCY Majority: No exception to reasonable prudent standard of care for insanity.


Policy: fairness argument—where one of two innocent must suffer loss, burden should fall on one who caused loss; to induce family restraint of insane, and to avoid encouraging false claims of insanity. Exception: Mental illness must affect person’s ability to understand and appreciate duty he has to exercise ordinary care or his ability to control conduct. Sudden effect of mental illness must come in absence of notice or forewarning to actor. ♦ INTOXICATION MAJORITY: A DRUNK PERSON WILL BE TREATED FROM THE ORDIANRY CARE OR REASONABLENESS STANDARD OF A SOBER PERSON. CANNOT BE USED AS A DEFENSE IN NEGLIGENT CASES.

PROFESSIONAL STANDARD General standard of care: Minimum standard of care generally applicable to profession.
Exception: Professionals who proclaim themselves to be specialists will be held to a specialist standard of care. They are held to the minimum specialist standard of care which is higher than the ordinary actor in the profession. Heath v. Swift Wings 1979: Pilot crashed with wife, son, and friend, killing all. Rule: proper standard of care is not that of an ordinary prudent pilot having Defendant’s same training and experience, but rather minimum standard of care expected of a “first day pilot.”

→ ATTORNEY MALPRACTICE NO LIABILITY: good faith, honest belief that advice and acts are well-founded and in best interest of client erase liability for error of judgment or mistake of law, not settled by highest court of state. LIABILITY: Attorney is liable for any loss to client resulting from want of knowledge and skill ordinarily possessed by others of his profession, from omission to use reasonable care, and from failure to exercise his best judgment in good faith.
Hodges v. Carter 1954: Case dismissed for attorney’s failure to properly serve insurance companies in suit; no negligence because attorney acted in line with local custom in service, despite defendant’s objection to lack of notice. Rule: it is enough to do what is commonly done, even if objection raised.

→ MEDICAL MALPRACTICE Standard of treatment customary in medical community must be shown with affirmative evidence, established through expert testimony, unless negligence is so grossly apparent that lay person could see it. Majority: ―similar community in similar circumstances‖ rule—standard of care found outside local community in a similar one.

Minority: ―strict locality‖ rule—standard of knowledge and skill found in terms of practitioner in good standing in local community in which Defendant practices.
Boyce v. Brown 1938: MD repaired Plaintiff’s ankle with screw, Plaintiff has repeated difficulties with ankle, eventually sees another physician who x-rays ankle and removes screw. Defendant did not x-ray. Rule: No community standard of care concerning x-ray established in expert testimony.

☼ INFORMED CONSENT Elements of informed consent malpractice claim: scope of disclosure, causation, and injury. Risks of proposed treatment must be adequately disclosed to the patient before he consents to the treatment. 1. Scope of Disclosure Material risk—what patient would want to know before procedure, tempered by condition that if he knew the information, he might chose differently. - It is generally held that a doctor must disclose all inherent risks associated with the treatment that a
reasonable person would take into account, provided that the well-being of the treatment is not impaired.

Moore v. Regents 1990: Physician must disclose any personal interests unrelated to patient’s health, research or economic based, that may affect MD’ professional judgment. However you might now have to disclose research or financial interests.

Exceptions to communication of material risk: if disclosure would present detriment to patient’s health, if disclosure was not necessary because risk was obvious, or if procedure administered in the midst of an emergency. 2. Causation Only exists if patient would not have agreed to tx if he had been properly informed of material risk. STANDARD OF CARE IN ISSUES OF INFORMED CONSENT
Scope of Disclosure Cantebury: Objective Standard Measured according to what information is reasonable under circumstances. Liability only if nondisclosure would have affected decision of a fictitious reasonable pt. Scott: Subjective Standard Measured according to particular patient’s need to know to make informed choice. Liability exists if the particular pt. would not have consented to treatment. Traditional: Reasonable Physician Standard Measured according to what physicians usually tell patients about a particular procedure. Liability exists if disclosure of MD fails to meet customary standard for particular procedure.


3. Injury Material risk must have actually materialized and plaintiff must have been injured as a result of submitting to the treatment.

RULE OF LAW Test for establishing standard of care by rule of law: 1. Preponderance of previous case law
Pokora v. Wabash RR 1934: Plaintiff pulled up to RR crossing, listened for oncoming train, heard none and crossed though could not see north bound tracks because of visual obstruction. Rule: Previous case law revealed rule that driver must get out of car and look before crossing, if he could not be sure whether or not train was coming. Majority interpretation: driver must look and listen, but does not always have to stop.

2. Standard set of facts exist without variation (risk and burden are known).
Helling v. Carey 1974: Undiscovered glaucoma in young person caused blindness though it could have been avoided by simple test, which by custom was not given to patients of victim’s age. Rule: Courts must in the end say what is required in standard of care; there are precautions so imperative that even their universal disregard will not excuse their omission.

STATUTE If no statute applies, then apply reasonable person standard of conduct via custom, Hand, etc. Test for establishing standard of care by statute: 1. Victim must be of class of persons the statute was designed to protect. 2. Injury of victim must be of type statute designed to prevent. Consequence of using statute as standard of care:
 


Majority—Unexcused violation of the statute must be declared as negligence as a matter of law, not left to evaluation by jury. Minority #1—―Rebuttable Presumption‖ Approach: Violation of statute gives rise to presumption of negligence, which may be rebutted by legally sufficient excuse. (If excuse determined to exist, then appropriate standard of care shifts to common law negligence standards—custom, Hand formula, etc.) Minority #2—Violation of statute is only evidence of negligence which jury may accept or reject as it sees fit.

Perry v. S.N. & S.N. 1998: Complaint against non-reporters of child abuse in daycare center. Because negligence per statute involves liability for all violators of statute, must consider whether or not imposing tort liability will disproportionately penalize conduct that is less morally blameworthy or not specifically defined than substantive crime (child abuser).

♦ Legally Sufficient Excuses (applicable in all three jurisdictions, above)  Violation is reasonable because of actor’s incapacity

   

Actor neither knows or should know of occasion for compliance Actor is unable after reasonable diligence or care to comply Actor is confronted by an emergency not due to his own misconduct Compliance would involve greater risk of harm to actor or others.

Zeni v. Anderson 1976: Plaintiff walking to work on wrong side of street and not on sidewalk, against statute, because snow covered sidewalk on correct side of street. Plaintiff hit by car and sues for injuries. Defendant raises statute as evidence of contributory negligence. Court applies ―rebuttable presumption approach‖— legally sufficient excuse presented, no ―strict liability‖ negligence per se, and standard of conduct for Plaintiff shifted to common law standards.

♦ Strict liability ―negligence per se‖ statutory violations—not rebuttable by excuse: o Child labor acts o Pure food acts o Federal safety appliance acts o ―Safe place‖ statutes (i.e. for public lighting) o Firearm sale to minors.

Direct evidence establishes fact of consequence; Circumstantial evidence establishes intermediate fact, from which can infer fact of consequence.

EVIDENCING NOTICE OF DEFENDANT ♦ When dangerous condition is out of ordinary, Plaintiff must prove either that: * Defendant placed item creating danger, * Defendant had actual notice, or * Defendant should have had known of danger (―constructive notice‖).
Goddard: No liability for slipping on banana on platform which contained many passengers, because none of three notices evidenced. Arjou: Liability for slipping on black and flattened banana peel, implying constructive notice—peel had been on platform long enough that Defendant should have known. Joyce: No liability for slipping on sticky, brown peel in place of much foot traffic, where none of three evidenced clearly. No indication of how long peel on floor.


♦ When dangerous conditions are constant, Plaintiff need not prove notice.
Jasko: Liability for slipping on piece of pizza, though no notice—because practice of selling pizza on slices of wax paper to standing customers was inherently dangerous.

RES IPSA LOQUITUR Inference that Defendant was negligent in a narrow set of circumstances when Plaintiff does not know what Defendant did. Elements: 1. Accident of kind that does not ordinarily occur in absence of negligence, → Plaintiff establishes by expert testimony or common knowledge that it is reasonable to assume that it is more likely that not that Defendant was negligent.
McDougald v. Perry 1998: Plaintiff’s car struck by spare tire which came loose from undercarriage of semi. Causation element of presumption met by general knowledge that events like this do not occur separate from negligence of controlling agent.

2. Thing is shown to be under ―exclusive control‖ of Defendant → Modern trend—It is enough for Plaintiff to meet Element #1 and show that it is reasonable to conclude that the Defendant was negligent. You have to show there was negligence.
Byrne v. Boadle 1863: Plaintiff struck by flour barrel which rolled out of upper window of flour shop. No witnesses as to what caused accident. Negligence presumed because barrel of flour owned by Defendant whose workers had exclusive control over the barrel. Larson v. St. Francis Hotel 1948: Plaintiff struck by overstuffed chair falling from hotel window during Vday celebration. Rule: If evidence shows that the accident could have or was caused by reasons for which Defendant was not responsible then Plaintiff must fail. H: No negligence because guests of hotel have partial control of hotel furniture.

3. Plaintiff was not, himself, negligent (Minority element). ♦ EXCEPTION: MEDICAL NEGLIGENCE WITH DOUBT TO DEFENDANT’S IDENTITY Where Plaintiff receives unusual injuries while unconscious and in course of treatment, all those Defendants who had any control over his body or instrumentalities which would have caused injuries—may property be called upon to meet inference of negligence.


Policy: to treat hospital/clinic like an employer who should have control of employees, to combat inter-profession loyalties and smoke out offender, to encourage doctors and nurses to regulate each other.
Ybarra v. Spangard 1944: Plaintiff gets dropped while unconscious for appendectomy. Rule: Manifestly unreasonable to insist that Plaintiff identify any one Defendant who committed negligent act upon him when he was unconscious, so can assert RIL against group who each had exclusive control of patient at any one time.

Not usually applied outside the medical field, because in other scenarios (Band Mothers’ chicken salad) no overriding employer exists who should be responsible for control, each Defendant acts independently of the other, and no deep pockets. ♦ PROCEDURAL FUNCTION OF RES IPSA LOQUITOR: Views: View #1: RIL meets burden of production by creating inference of negligence, but Plaintiff still bears burden of persuasion to convince jury of Defendant’s negligence by preponderance of evidence. (You get to jury, but they may decide either way.) View #2: RIL creates a presumption of negligence and shifts burden of production to 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.) View #3: Burden of production and persuasion shifted to Defendant in presumption of negligence with burden to show by preponderance of evidence that injury not caused by his negligence. Defendant must not only rebut presumption, but do so with a preponderance of evidence. REBUTTAL—SHOWING ANOTHER LIKELY CAUSE FOR ACCIDENT OR HARM BY REASONABLE INFERENCE IF NO EXPLANATION AVAILABLE.
Sullivan v. Crabtree 1953: Passenger of truck killed when driver lost control and overturned it on steep embankment; In View #1 jurisdiction, Plaintiff argues that Defendant should be negligent as matter of law, because he could not produce a sufficient explanation for the accident beyond his own negligence. Rule: Defendant’s testimony to potential causes of accident, including faulty breaks, created a reasonable inference and, in turn, a question of fact, which should have gone to jury. Requirements for doctrine II. The first must be no direct evidence of how D behaved in connection with the event. III. They have to show that it seldom occurs without negligence


IV. V.

The P must show that the instrument that caused her injury was, at the time, in the exclusive control of the D. Must show that the P did not contribute to the injury.

GENERAL RULE: WITHOUT WHICH NOT TEST—Plaintiff must show that more likely than not, without the negligence of the Defendant, the harm would not have occurred. Problem in attorney malpractice cases: proving causation and harm—must show that without attorney’s malpractice, client would have won case and for how much. Example: Negligence in not informing client of ADR—client must show that he would have pursued ADR if informed, that other party would have agreed to do same, and what result would have come of ADR process. MORE LIKELY THAN NOT
Reynolds v. TX & Pac. RR 1885: Fat lady rushed out of passenger car trips on poorly-lit stairs. Defendant argues that lady could have fallen in daylight. Rule: Mere possibility that event might have happened without negligence will not break chain of causation when negligence greatly multiplies chance of accident or negligence is of a character which naturally leads to its consequence. Kramer Services v. Wilkins 1939: Glass falls from door, cuts Plaintiff’s head, cancer develops there later; Rule: causation is not possibility but probability. Expert testimony must reveal that it is more likely than not that cancer resulted from cut.

♦ EXPERT TESTIMONY Proof of causation may require expert testimony if it involves understanding beyond ordinary person. Tests for admissibility of expert testimony: → Frye Test: scientific evidence admissible if based on scientific technique generally accepted as reliable within scientific community. → Daubert Test: Part I: Expert testimony must reflect scientific knowledge, derived by scientific method, resulting in ―good science.‖


Indicators: theory generally accepted by scientific community, theory can and has been tested, potential rate of error is known and acceptable, theory has been subject to peer review, and research conducted independent of litigation. Part II: Expert testimony must fit case and be ―helpful‖ to finder of fact. Indicators: must be valid scientific connection to pertinent inquiry. In case of causation, theory must reveal that there is a ―more likely than not‖ relationship between Defendant’ conduct and harm caused.
Daubert v. Merrell Dow Pharmaceuticals 1995: Benedictin babies bring suit for birth defects; no liability because experts failed to show that drugs more than doubled the risk of defect in Plaintiffs. Policy: requiring ―more likely than not‖ rather than ―increase in risk‖ standard protects Defendant from paying for harm he did not cause.

EXCEPTIONS TO WITHOUT WHICH NOT TEST: PROBABILITY NOT REQUIRED ♦ LOSS OF CHANCE TO LIVE Unlike other causation cases in which proof of probability equals liability for 100% of damage, here actor is liable, when his act or omission increased risk of decrease in victim’s chance of survival, for the value of the percentage decreased. Damages = (% reduction in chance of survival) x (value of life). → If original chance of survival before encounter with actor’s negligence was higher 50%, then actor may be liable for full damages—i.e. full value of life lost.
Herskovitz v. GHC of Puget Sound 1983: Both parties concede that negligence of physician caused 14% decrease in chance of survival when failed to diagnose lung cancer; MD pays 14% of value of life.

♦ TWIN FIRES (EACH ACTING INDEPENDENTLY WOULD HAVE CAUSED LOSS) 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.
Anderson v. Minneapolis RR 1920: A fire started in bog by spark from train combined with independent fire and destroyed Plaintiff’s property. Rule: No ―but for‖ causation required since damage was result of two actively operating forces, only one of which the defendant had control or was responsible for. Need only prove that Defendant’s force was substantial factor in damage.

♦ TWIN GUNS (EACH ACTING INDEPENDENTLY MIGHT NOT HAVE CAUSED LOSS) If either of two negligence causes could have caused loss, shift to each Defendant the burden of proving that he did not cause the loss. If burden not met by either, there is joint and several liability.


Summers v. Tice 1948: Defendants’ negligently fired at quail in direction of Plaintiff; one bullet struck him in eye. Rule: Because Defendants acted in concert, jointly causing harm and making identification of faulty party impossible, burden of exoneration is shifted to each to absolve himself if he can. Hills v. Edmonds 1966: Plaintiff passenger in car which collided with tractor truck that was parked in middle of road on stormy night with no lights. Two Defendants, which acting together created cause-in-fact, but whose individual negligence would not have caused the harm—driver of truck not paying attention and owner of truck who left it in road. Rule: Each is responsible for entire result.

♦ ENTERPRISE LIABILITY Small number of alternate negligent causes, all before the court, and delegation of safety standards to a trade association. Hall v. Du Pont: ♦ MARKET SHARE LIABILITY Large number of alternate negligent causes and manufacturers of a substantial percentage before the court. Sindell v. Abbot Laboratories 1980:

ANALYSIS: 1. Look for proximate cause under universal rules and exceptions. 2. Look through remaining three rules and exceptions. 3. If no rule applies, then no proximate cause. 4. Always evaluate ―Practical Politics.‖ UNIVERSAL RULES ♦ EGG SHELL SKULL

Foreseeable Physical Injury + Unforeseeable Extent of Injury


Rule: Defendant may be liable for aggravating a pre-existing vulnerability or illness. Bartolone v. Jeckovich 1984: Plaintiff involved in four car chain collision caused by negligence of
Defendant; Plaintiff suffered neck and back pain, but trauma sparked paranoid schizophrenic condition which left him dysfunctional. R: Egg Shell; no defense in argument that condition may have occurred without accident. H: For Plaintiff.


Foreseeable Consequence or Foreseeable Intervening Cause
FORESEEABLE CONSEQUENCE Rule: Defendant liable for existing foreseeable damage. (Most also allow recovery for ―egg shell skull,‖ even though extent of injury unforeseeable.) Wagon Mound #1: Defendant negligently discharged furnace oil into harbor; sparks from workmen on
dock ignited particulate matter floating in oil; dock and two ships burned. H: Liability for foreseeable damage to dock—oil on dock; No liability for unforeseeable damage arising out of same incident—fire to dock and ships.

Rule: Manner in which event occurs need not be foreseeable as long as the event itself is anticipated. Wagon Mound #2: New evidence: Ship captain knew of risk in releasing oil; R: A reasonable ship captain
should have known that scenario had occurred before and thus taken steps to prevent it. Even though the risk was small, his burden to prevent it was minimal—so his neglect of the risk makes him liable for the now foreseeable consequence of burning dock.

FORESEEABLE INTERVENING CAUSE (NOT SUPERSEDING) Rule: Defendant liable for injury resulting from foreseeable intervening cause. 1. RESCUER Rule: Actions/injuries of rescuer are foreseeable intervening cause, when:  Defendant negligent to person rescued and such negligence caused peril or appearance of peril rescued;  Peril or appearance of peril imminent;  Reasonable prudent person would have concluded such peril or appearance of peril existed; and  Rescuer acted with reasonable care.


McCoy v. American Suzuki 1998: Plaintiff aids in directing traffic after he sees Suzuki roll and calls police. Hit by a car from behind when walking back to scene.

Defendant also liable for aggravation of injury caused by negligence of rescuer in attempting to alleviate harm.
o Fire Fighters Rule: if it is someone who’s professional job is rescue they do not get to recover for the loss that was suffered

2. SECOND ACCIDENT Rule: Second injury caused by weakened or dangerous condition resulting from first injury is foreseeable intervening cause. 3. ESCAPE Rule: Attempted escape is a foreseeable intervening cause, making Defendant who caused danger liable for resulting injuries. 4. DOCTOR’S NEGLIGENCE Rule: Patient’s response/conduct resulting from negligence of MD instruction is foreseeable intervening cause.
MD negligently gives script to patient without warning of drowsiness; patient’s driving while drowsy was foreseeable intervening cause.

RKO Radio: Negligent radio instruction—first person to find mobile broadcast wins prize. Rule:
negligent driving of teenage listeners in search of mobile was foreseeable intervening cause.

EXCEPTIONS TO FORESEEABILITY RULE: ▪ ECONOMIC DAMAGE ALONE Rule: Economic loss not recoverable in tort. Kinsman #2: Claim by owners of wheat stored aboard ship on the river which flooded because the bridge fell for extra expense in transporting wheat and replacing it denied. ▪ CRIMINAL ACT


Watson v. Kenticky & Indiana Bridge & R.R. Co.: Train spilled a large amount of gasoline. Third party dropped a match that caused the gas to explode. Court ruled that D was liable if a third party dropped the match or started the fire inadvertently because it was foreseeable that a fire would start. However D was not liable if a third party dropped the match maliciously and intentionally to start the fire. ▪ SERVING ALCOHOL Majority: Social host is only liable for consequences of intoxicated minor guest; commercial dispenser liable for consequences of all intoxicated guests whom they served while drunk. Minority: Social host who knowingly serves liquor to intoxicated guest who she knows will be driving is liable for injury resulting from guest’s operation of vehicle. Host must show reasonable care to prevent scenario. Kelly v. Gwinnell 1984: Social host liable for injuries to Plaintiff resulting from head on collision between one of her intoxicated guest and Plaintiff after an office party. ▪ SUICIDE Majority: Suicide is superseding cause: Person who knowingly committed suicide is culpable wrongdoer Minority: Suicide by ―irresistible impulse‖ is not superseding cause: If person did not knowingly control or commit suicide but succumbed to foreseeable injury, Defendant is liable. Fuller v. Preis 1974: Seven months after traffic collision, decedent developed seizures and unconsciousness
due to mental trauma; shot himself in head after a bad spell.

♦ RR LOOP Foreseeable Injury in Unforeseeable Manner or Intervening Cause


UNFORSEEABLE MANNER AND FORESEEABLE INJURY RR Loop: Foreseeable potential to cause great harm, but actual harm occurred as a result of unforeseeable consequence of act or manner. UNFORSEEABLE INTERVENING CAUSE AND FORESEEABLE INJURY Rule: Where foreseeable risk of intervening cause occurring is same risk which standard of care would have prevented, Defendant is liable for not taking reasonable steps to abate risk. Rule: You can have liability when there are foreseeable injuries in an unforeseeable manor. Derdarian v. Felix Construction 1980: Plaintiff working to seal gas main in excavation sight injured when
driver with epileptic seizure struck him. Rule: foreseeable risk was negligent driver; actual risk was epileptic driver. Defendant negligent in not preventing risk by posting sign men, parking truck by hole as barrier, etc.

EXCEPTIONS TO RR LOOP: ▪ UNFORESEEABLE INTENTIONAL OR CRIMINAL INTERVENING CAUSE INTENTIONAL Yun v. Ford Motor 1994: Plaintiff decedent got out of van, crossed two lanes of traffic to get spare tire
which fell off back; and was hit and killed. H: Defendant is not liable because decedent’s act was unforeseeable and extraordinary.

CRIMINAL Rule: No liability for tortfeasor if intervening act is unforeseeable and actor has greater culpability. But if actor’s culpability is equal to tortfeasor or criminal act is foreseeable, then tortfeasor is liable. Watson v. KY and Ind. Bridge and RR 1910: By Defendant’s negligence, tank car full of gasoline derailed
and gas ran everywhere; Plaintiff injured by explosion resulting from match thrown by another actor. Rule: Because injury was forseeable: if match thrown maliciously, then match-thrower is liable; if match thrown negligently, then RR is liable.

HYPO: Car with bad trunk; man stops on highway to fix trunk and gets hit.

Rule: Not foreseeable that defective trunk lid would cause injury on road; man could have driven to safety. Car with tire falling off; man stops to fix tire and gets hit. Rule: Foreseeable that wheel might have directly led to injury on the road.

OTHER RULES ♦ DIRECT CAUSE Rule: Consequences which follow in unbroken sequence without intervening cause from the original negligent act are natural and proximate; irregardless of whether manner or harm was foreseeable. Key: Stage is set; all necessary actors and elements are in place to cause resulting harm before the negligent act occurs. Polemis v. Furness Co. 1921: Ship crew of chartered boat negligently drop plank into ship’s hold causing
spark which explodes in contact with fumes from cargo. Rule: So long as damage is traceable to negligent act and not due to independent cause, Defendant is liable.


Rule: Defendant liable for unforeseeable damages which are of the same sort that was foreseeably risked, even if they are other than or greater than expected. Kinsman #1: Moored ship on icy river, negligence on part of dock owner, city workers, and ship owner;
damage to homes upstream from bridge. Rule: Owner of ship liable to all property owners; foreseeable sort of damage—ship could have come loose from its negligent mooring on icy night and either run aground on property or blocked narrow waterway itself and flooded river. Owner of dock liable to property owners downstream from dock—ships could foreseeably come loose from negligent installation of mooring, but since negligence occurred in summer months, the flooding scenario of icy night was less foreseeable. City workers: liable to all as ―experts‖ who could foresee result of their negligence.


PRACTICAL POLITICS Practical politics may lead court to ignore the rules, if justified. Factors: 1. Was Plaintiff performing a valued service? 2. Is there insurance available to Defendant which would cover harm? 3. Is there a way to spread cost? Is cost to consumer too great? 3. Will creating liability open door for unlimited suit? 4. Does court want to protect a valued industry from burden of suit? FOR PLAINTIFF LA Rescuer: Truck left in middle of road without lights; second vehicle crashed into truck; rescuer pulls
victims from car and hands pistol in back seat of vehicle and hands it to one of victims; victim shoots rescuer. H: Even though harm to rescuer was not foreseeable, recovery against truck driver on part of rescuer allowed.

POLICY: courts like rescuers and wants to encourage them. FOR DEFENDANT NY Fire Rule: Defendant negligently enabled train engine to set fire to wood shed which spread to house.
Rule: ―One building rule;‖ no liability for damage to house, because the fire’s spread was unforeseeable— only liable for immediate, expected consequence in first building.

POLICY: extending liability beyond first building would create liability against which no one would insure (1866) and damages which no fortune could meet; also protecting valued railroad industry. DES Granddaughter: Liability stretched too far; drug manufacturers not around. ?

Plaintiff must show that he suffered compensatory damage which Plaintiff can make whole. PROPERTY DAMAGES


  

If property is destroyed, damage is market value of property at time of wrong. If property damages, damage is difference between MV before and after accident. If depravation of use of property, then rental value of period Plaintiff without use of property.

    

Past and future pain and suffering, Past and future medical expenses, Lost earnings and lost earnings capacity1, Permanent disability and disfigurement, and Hedonic damages—loss of pleasure.


WRONGFUL DEATH STATUTES—spouse, kids, siblings can recover for lost income and companionship. SURVIVAL STATUTES—damage = how much decedent lost as a result of his death.


Does Defendant have duty to exercise reasonable care to protect this Plaintiff from this harm? RULE: Duty to exercise reasonable care to protect all persons from all types of harm. Exceptions to general rule:

Earnings capacity not dependent on earnings at time of death, but potential (i.e. surfer could have been lawyer.)


NO DUTY TO CLASS OF PERSONS ♦ UNFORESEEABLE PLAINTIFFS Persons whom the Defendant could not have foreseen injuring at the time he acted. Split in jurisdiction: 1. Cardozo Rule: No duty. 2. Andrews Rule: Duty to all injured.
Palsgraf v. Long Island RR: man being helped onto train dropped package wrapped in paper; package contained dynamite; explosion knocked over scale several feet away injuring Plaintiff waiting on boardwalk. Rule: No liability for injuries of woman who was outside the ―orbit of [foreseeable] danger.‖

♦ INJURED RULE: Bystander has no duty to take an affirmative action to aid Plaintiff, unless Defendant:

Has SPECIAL RELATIONSHIP WITH PLAINTIFF, requiring him to exercise affirmative care to protect Plaintiff from harm—relationship of dependence. Examples: o Business invitee. o Employer and employee, when acting in course of employment. o Common carrier and passenger. o Temporary legal custodian and ward. o Husband and wife; parent and child.
L.S. Ayers v. Hicks 1942: 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.


Defendant or his instrumentality CREATES DANGEROUS SITUATION OR INJURES Plaintiff.
o If you create a dangerous situation you have a duty to protect other from harm by using reasonable care (i.e. if you are driving a hit a cow, killing it. You cannot just leave the seen for someone else to hit the cow. You have to call the police or move the cow)


VOLUNTARILY BEGINS AID, then he must exercise reasonable care to aid. → Duty can terminate as long as don’t leave injured in worse condition.
 Majority: You can terminate you aid so long as you do not leave the person in a worse condition than you found him.



PROMISES AID on which Plaintiff relies to his detriment. Example: Women who relied on promise of sheriff to warn her of the release of dangerous inmate whom she had testified against; no inform; woman killed. Has SPECIAL RELATIONSHIP WITH ONE WHO CAUSES 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. Examples: o Parents of dangerous children. o Persons taking charge of lunatics or criminals. o Wards with contagious disease. o Wife to girls spending time with known sexually abusive husband. o CA: psychiatrist (attny) to warn potential victim, when patient expresses intention to harm an identifiable victim.
J.S.+ M.S. v. R.T.H. 1998: Defendant’s husband sexually abused two neighbor girls in barn several times over a year; Wife admitted to knowing of her husband’s proclivity for young girls. Rule: When spouse had actual knowledge or special reason to know of likelihood of spouse engaging in sexually abusive behavior against a particular person, she had duty to take reasonable steps to prevent or warn of harm. Tarasoff v. Regents of UC 1976: Patient told psychologist that he planned to kill old love interest; Psychologists detained patient for a while and then let him go without warning intended victim; patient murdered. Rule: Psychologist in type of special relationship to patient that he could control foreseeable behavior against a reasonably identifiable victim.


♦ UNBORN CHILDREN Former Rule: no duty to unborn children. Modern exceptions: 1. Injury to fetus, later born alive—Duty of reasonable care to child/parents. 2. Wrongful Death of Fetus—Duty of reasonable care to parents. Duty extends to: * Majority: Viability * Minority: Conception * Minority: Birth
Endresz v. Friedberg 1969: Mother injured in car accident denied recovery for still born twins. Rule: Defendant’s duty did not begin until twin’s birth.

3. Wrongful Birth: Negligence action brought by PARENTS for birth of disabled child. Majority: Extraordinary expenses. Minority: Extraordinary expenses plus emotional distress.

Minority: No recovery. 4. Wrongful Life: Negligence action brought by disabled CHILD for his own birth. Majority: No recovery. Minority: Child can recover extraordinary expenses.
Procanik v. Cillo 1984: Infant sues MD for negligence in misdiagnosing German measles immunity in mother, which denied her the choice to abort. Rule: recovery for special expenses in caring for child allowed because calculable damage separate from question of value of life with or without defect.

♦ NON-CLIENTS Rule: Duty only to client and those who client intends to benefit (Ex. Testate beneficiaries).
Clagett v. Dacy 1980: Plaintiffs were high bidders in foreclosure sale which attorney screwed up twice; Plaintiff lost potential profit in resale of property. Rule: Attorney, hired by mortgagee to get high price for property—interests of employer conflicted with those of bidders who sought lowest price.

NO DUTY FOR TYPE OF INJURY ♦ EMOTIONAL HARM ALONE HARM DIRECTED TOWARD PLAINTIFF: Rule: No duty for bystander to take an affirmative act to aid the Plaintiff, unless: 1. Distress, held against standard of reaction of normal person, plus objective physical manifestation of injury or consequence, OR
Daley v. La Croix 1970: Two plaintiffs claim ED in response to electrical explosion in home after Defendant struck pole. Rule: Need distress and physical consequence. Court finds manifestation of injury in neurosis and nervousness, aggravated by event. The physical consequences must flow from the distress. The P has the burden of proof that the physical harm is the natural result of the fright proximately caused by the D conduct. (Thin Skin Rule: There is not recovery for hypersensitive people where a normal person would not be disturbed)


2. CA/Minority: Severe distress and high likelihood of stress. HARM DIRECTED TOWARD A THIRD PARTY Rule: If emotional distress is suffered at the shock of seeing injury to a third person, jurisdictions require Plaintiff to meet above requirements plus one of the following:

▪ Plaintiff must be within the zone of physical danger. ▪ Loss must be foreseeable (―direct victims‖).
Molien v. Kaiser 1980: Wife negligently diagnoses with syphyliss; MD advised Plaintiff to have husband tested; resulting strife caused divorce. R: Husband allowed to recover for ED because he was a reasonably foreseeable direct victim of MD’s negligence.

▪ Loss must be foreseeable, AND ◦ Plaintiff must suffer shock from contemporaneous observation. ◦ Plaintiff must be closely related to third party.
Thing v. La Chusa 1989: Sister who saw brother rolled over by car allowed to recover even though out of zone of danger, but mom who did not see or hear the crash when it happened denied recovery.

▪ No recovery at all for ED resulting from observing injury to third party.

DUTY TO EXERCISE SOMETHING LESS THAN REASONABLE CARE ♦ AUTOMOBILE GUEST STATUTES Rule: Duty to guest is only to avoid recklessness driving (aggravated misconduct). Negligence Objective standard of appreciation of risk No knowledge of what should have been aware. Recklessness Appreciation of risk subjective to Def. Conscious disregard of high probability of risk of harm (still lower than substantial certainty of risk in intentional torts)

♦ OWNERS AND OCCUPIERS OF LAND MAJORITY (Traditional Rule): Duty depends on the status of the Plaintiff: 1. UNKNOWN ADULT TRESPASSERS generally—no duty in negligence. 2. KNOWN TRESPASSERS, TRESPASSERS IN FREQUENTED AREAS, LICENSEES  Active Conditions (Active machinery, railroad):  Majority: Reasonable care  Minority: Avoid recklessness.


Licensees: Persons permitted on premises for business purpose; social guests; police and firemen.  (trap) Passive, concealed, dangerous conditions of which owner is aware—Duty to warn.  Obvious, passive dangers—No duty. 3. Business Invitees—duty to exercise reasonable care (also affirmative care). MINORITY: Several jurisdictions require reasonable care toward licensees as well. CALIFORNIA: reasonable care toward all.
Q1 Your first question is what is the status of the person? Q2 What duty is owned to them? Q3 Was the duty met under the circumstances?

1. 2. 3. 4. There is liability if there is an artificial condition and; Children are likely to trespass and; There is a risk of death or serious bodily injury and; Burden of safety id slight compared to the risk.

Butterfield v. Forrester -- D placed pole along road with space to go through. P was riding extremely fats and hit the pole. Court ruled that P contributed to the negligent by riding to fast. Refused any recovery. If he had used ordinary care he would have seen the pole. Contributory Negligence: Comparative Negligence: (he does not think this is fair) Last Clear Chance: entitles P to full recover if the D had last clear chance to avoid the recovery. It was all based on timing. o Does not take into consideration relative fault.




Primary a of r = df was not negligent b/c he owed no duty to pl. Secondary a of r = establishes a breach of a duty owed by df to pl.

    Do not be an early writer; take time to write an outline. First thing to do is to look to the call of the question Do not miss a cause of action Identify who has lost something or any type of injury o Those will be your potential P. o Look to who caused the loss o Once you have done that, is there a theory that we have talked about that allows a potential p to recover. Then identify your elements for each cause of action


A v. B – Battery - Act - Intent - Causing - Contact A v. B – Assault - Act - Intent - Causing - Apprehension D v. C – Negligence - Duty - Breach - Cause in Fact - Proximate Cause - Damages * Defenses – Contributory Negligence or Assumption of the Risk If the issues are unclear go deeper into it. Focus you attention on the elements that are at issue. Everything is fair game for the exam. Everything that we have read is fair game. Look for the majority and minority rules that are at issue. There could be two different results so discuss both.


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