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					I.

Type II Analysis - Analytical Approach- If DF is not the source of the risk, must DF protect from risk?
Was the ∆ the cause in fact (―but for‖) of the accident? What is the scope of the duty? i. Duty to warn ii. Duty to inspect iii. Duty to repair iv. Duty to protect (from unreasonable harm) c. What is the source of the duty? i. Did the DF have a special relationship w/ π? (Product, Service, Landowner) ii. Did the DF have control of the risk? iii. Did the DF have knowledge of the risk? iv. Did the DF create the risk? d. Did the ∆ reasonably fulfill this duty? i. What things that cause harm are circumstances that the DF should have taken into account when determining how to act? ii. What circumstances that tie DF’s conduct to the PL’s injury is the DF allowed to ignore when determining how to act? e. Is there a reason to limit liability? i. Did the PL assume the risk? ii. Did the PL have the ability to protect? iii. Was the PL part of the blame for the risk? iv. Public Policy (Ripples) v. Was the risk ―freakish?‖ vi. Where no physical harm should recovery be allowed for emotional or economic harm? 1. Was the person within the zone of danger? 2. Was the person a by-stander? Portee 3. Was the emotional damage foreseeable?
a. b.

―Are the circumstances that link the DF's choice with the victim's harm, circumstances that a reasonable person should have taken into account. "
FUNCTION/GOALS of TORT LAW 1. Corrective Justice 2. Optimal Deterrence 3. Loss Distribution 4. Compensation 5. Redress of Social Grievance KEY CONFLICTING VALUES: 1) Compensating individuals who have been injured 2) Preserving individual Choice 3) Determining the social cost-benefit of a given policy 4) The emphasis on value choice 5) The emphasis on reason to elucidate the premise’s underlying choices.

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NEGLIGENCE LIABILITY
a. STANDARD OF CARE
i. Unreasonable risk – The DF is bound only to use that care that is commensurate with the hazards involved. The risk, reasonably perceived, defines the duty owed. Reasonable person is only bound to expect that which is usual rather than that which is exceptional and act accordingly. 1. Adams v. Bullock – Type II – Duty to protect from injuries - A child was shocked and burned when a wire the child was swinging over the side of a bridge contacted the trolley wire running below. Ordinary caution does not involve forethought of extraordinary peril. One is not guilty of negligence when one fails to foresee the unusual and remote conduct of others. a. Balancing of factors to determine whether a duty was owed. The foreseeability of harm is balanced against the ability to prevent injury. 2. United States v. Carroll Towing Co. – Type II – Hand Formula - Duty to Protect from Accidents -A barge, without a bargee on board broke a drift, was carried by wind into a tanker whose propeller broke a hole in barge’s bottom, and barge lost its cargo and sank. Absent a reasonable excuse, barge owner’s failure to take reasonable steps to prevent unreasonable risk of barge breaking away in busy wartime harbor by manning barge with bargee is negligence. If the burden of adequate precaution is less than the probability of the risk multiplied but the gravity of the resulting injury, then a person is negligent. i. B < P(L) = negligence . B > P(L) = no liability ii. B= Burden, P = Probability of Risk, L = Gravity of Harm

b. REASONABLE PERSON
i. Basic Standard – the “Reasonable Person” - Defendant’s conduct is measured against the reasonable, ordinary, prudent person. DF is expected exercise ordinary or reasonable care which persons of ordinary prudence would use in order to avoid injury to themselves or others under circumstances similar to those shown by the evidence. This reasonable person has the following characteristics, measured by an objective standard: 1. Physical characteristics – same as defendant’s 2. Average Mental Ability - Individual mental handicaps are not considered: low IQ or insanity is no defense. 3. Average knowledge as community member - individual shortcomings are not considered. If DF possesses superior knowledge they are expected or required to use it. ii. Bethel v. New York City Transit Authority – Type II – Duty of investigation of faulty repair - A man was injured when a wheelchair seat on a bus collapsed under him only eleven days after repairs had been made to the seat. A common carrier is subject to the same duty of care as any other potential tortfeasorreasonable care under all of the circumstances of the particular case. There is no stratification of degrees of care as a matter of law; rather, there are only different amounts of care as a matter of fact. iii. Andrews v. United Airlines, Inc. – Type II- Duty to protect from falling bags - A woman was injured when a briefcase fell on her from the overhead compartment of an airplane. Summary judgment is inappropriate. Common carriers owe both a duty of utmost care and vigilance of a very cautious person towards its passengers. c. ROLE OF CUSTOM - Following custom in the community or trade practice is not conclusive. The custom is merely evidence of the standard of care owed. The test still is whether the average reasonable person would have so acted under the same or similar circumstances. i. Trimarco v. Klein – Type II – Duty to Remedy - A man was badly cut in the DF’s apartment building when he fell through a glass shower door which was not made of shatterproof glass, as was the custom. When proof of a customary practice is coupled with a showing that it was ignored and that this departure was a proximate cause of the accident, it may serve to establish liability. Custom and usage may be used to prove that one charged with negligence has fallen below the required standard. d. ROLE OF STATUTES - If DF’s conduct violates a criminal statute that does not provide a civil remedy, PL might still remedy through negligence action. However, the statute must clearly define the conduct or duty required and the class or individual to whom it applies to. DF has available the defenses of contributory negligence and assumption of risk. i. Majority: violation of a statute gives rise to a conclusive presumption of negligence. ii. Minority: violation is merely evidence of negligence. iii. Violation is not negligence if: 1. It creates more danger to life and limb by compliance 2. Beyond DF control to comply with statute 3. Outdated (small number of cases) 4. Has no relationship to risk 5. Exception found by courts that is necessary and reasonable.

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f.

iv. Martin V. Herzog – Type II – Statutory Duty - The Martins (P) were driving a buggy without lights at night when they were struck by the DF car, which was traveling on the wrong side of the road. The unexcused omission of statutory is negligence in itself. Jurors ignored statutory laws. v. Tedla v Ellman – Type II – Statutory Duty - Two pedestrians were hit from behind by a car as they walked along the side of a roadway on the incorrect side (as defined by statute) of the route. A pedestrian is at fault if he fails without good reason to observe the statutory rule of conduct. Violation of a statute is not automatically considered negligence if there is a good reason to depart from the dictates of the statute. 1. Failure to obtain a license is not negligence per se. Proof of Negligence – Typically the PL’s burden. i. Negri v. Stop & Shop, Inc. - Type II – Constructive Notice - Duty to protect/ Investigate from spills in stores - PL slipped and fell in a grocery store on broken and spilled jars of baby food which the store had failed to clean up. PL having made out a prima facie case, it was error to dismiss the complaint. When the PL has made out a prima facie case, it would be error to dismiss the complaint. ii. Gordon v. American Museum of Natural History – Type II - A man sued after he slipped and fell on a piece of paper, which he claims came from a Museum concession stand. To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit the DF’s employees to discover and remedy it iii. K-Mart case - no evidence that indicates how Kmart sold birdseed: in bags of paper or plastic or burlap, or in boxes, or in canisters, or loose and in bulk. On this record, a reasonable jury could not find that Kmart’s method of selling birdseed created a foreseeable risk RES IPSA LOQUITUR (RIL) – means ―thing speaks for itself.‖ Inference that the DF was negligent, without any direct proof. The DF has the burden of introducing evidence to overthrow the inference. However, RIL does not apply if negligence by the DF is no more likely than another explanation; unless reasonable agree that 51% of the probabilities point to DF’s liability. i. Rational – The existence of an injured PL and a DF who has better access to the evidence concerning the cause of the injury. ii. Applying in situations where: 1. Highly probable that the injury would not have occurred in the absence of negligence and DF had control of the instrumentality. 2. The source of negligence is within the scope of a duty owed by DF to the PL 3. Neither PL nor any 3rd party contributed to PL injuries. iii. Byrne v. Boadle – Type II – Duty to Prevent Risk - DF injured when barrel of flour fell out of a window and hit him. If a person passing along the road is injured by something falling upon him, the accident alone is prima facie evidence of negligence, and if there is any state of facts to rebut the presumption of negligence, the DF must prove them. iv. Mcdougald v. Perry – Type II – Duty to Inspect - A spare tire bounced from under a trailer injuring the driver following the trailer. - RIL provides an inference of negligence when the accident is the type that does not occur without negligence and the DF is in control of the circumstances. PL does not have to eliminate all possible causes; PL only has to provide enough evidence based upon which reasonable persons can say it is more likely than not there was negligence associated with the event. v. Ybarra v. Spangard – Type II – Departure from the rule of exclusive control - DF lost the use of his arm due to an injury which occurred while he was unconscious and receiving medical treatment for another ailment. Where a PL receives unusual injuries while unconscious and in the course of medical treatment, all DF who had any control over his body or the instrumentalities which might have caused the injuries may be called upon to meet the inference of negligence by giving an explanation of their conduct.

g. MEDICAL MALPRACTICE
i. Helling v. Carey – Type II - After nine years of going to an eye doctor and complaining about her peripheral vision because of contacts, a doctor finally diagnosis the PL with glaucoma after sustaining permanent impairment to her vision. When the price of care is so low to prevent a loss so high, liability should be imposed, even if the DF did not violate the standard of existing care of the profession. There are precautions so imperative that even their universal disregard will not excuse their omission. ii. Matthies v. Mastromonaco – Type II – PL’s doctor treated her broken hip with bed rest instead of surgery, without consulting with her about her options, and she never walked again. To obtain a patient’s informed consent to one of several alternative courses of treatment, the physician should explain medically reasonable invasive and noninvasive alternatives, including the risks and likely outcomes of those alternatives, even when the chosen course is noninvasive. 1. Informed Consent - it is not whether a treatment alternative is invasive or noninvasive, but whether the physician adequately presents the material facts so that the patient can make an informed decision. CAUSATION - A causal relationship must exist between the DF’s conduct and the harm to the PL (both actual and proximate cause). If the DF did not cause the injury in fact, he is not liable, but even if the DF did cause the injury in fact, he is not liable if he was not the proximate cause.

II.

a. CAUSE IN FACT - Actual causation is always a question of fact for the jury. The court enters into the decision
only in deciding if reasonable persons could find such a fact. Stubbs v. City of Rochester – bad water supply – PL has the burden of proving that the DF’s negligence was more likely than not the cause of his injuries. i. Sine Qua Non (But For) Rule: If the injury to the PL would not have happened ―but for‖ the act or omission of the DF, such conduct is the cause in fact of the injury. ii. Zuchowicz v. U.S. – Type II – Duty to Inspect - Although the cause of PL disease was unascertainable, PL filed suit, claiming that a hospital’s negligence in prescribing 2X the maximum authorized dosage of a particular drug caused her to suffer from a rare disease. 1. Cardozo/Taylor rule: If (a) a negligent act was deemed wrongful because that act increased the chances that a particular type of accident would occur, and (b) a mishap of that very sort did happen, this was enough to support a finding by the trier of fact that the negligent behavior caused the harm. iii. Alberts v. Schultz – Type II – Duty to Prevent Risk - After losing his leg on account of gangrene, an amputee filed suit against his physician on the ground that the doctor’s negligence in failing to order the proper exams and promptly refer the case to a specialist caused the patient to lose a significant chance at saving his leg. A PL in a lost chance cause of action must show, to a reasonable degree of medical probability that, the doctor’s negligence caused a diminution in the chance of recovery. 1. Lost chance theory - Refers to lost opportunity of a better result not the harm that was caused by the presenting problem. Patient must prove that the harm for which he/she originally sought treatment was worsened by the lost chance. Subtract the percent chance of saving the leg on the day the patient received treatment from the percent of chance of saving leg when the patient first saw Dr. to find the loss of chance percentage attributable to the negligence of the dr. a. Problem w/LC: we don't have perfect knowledge of reliable %’s

b. MULTIPLE DF’s
i. Hymowitz v. Eli Lilly Co. – Market Share Analysis - Type II – Duty to Protect/Warn - Several PL brought separate suits against the several manufactures of a drug used to prevent miscarriages which injured the PL prenatally. Due to the fungible nature of the drug, however, none of the PLs could establish which company manufactured the precise drug taken by their mother. If PL can’t prove which of multiple persons caused his injury, but can show that all produced a defective product, all of the DF manufactures will be held liable for the PL’s injuries in proportion to each manufacturer’s market share of that product at the time of injury. PROXIMATE CAUSE - Proximate cause is a question of law, not concerning facts; it involves conflicting considerations of policy—it comes into consideration only after causation in fact is established. It is an attempt to deal with the problem of liability for unforeseeable or unusual consequences following the DF acts. a. UNEXPECTED HARM – harm is different than foreseen due to some preexisting condition or subsequent circumstances. i. Benn v. Thomas – Type II – Duty to protect Eggshell PL - The estate of a man who died from a heart attack occasioned by a rear-end auto accident filed suit against the driver who caused the accident for damages flowing from the death. A tortfeasor whose act, superimposed upon a prior condition of the defendant, results in a greater than expected injury is nevertheless liable for the full extent of the harm. 1. Eggshell Plaintiff rule - "a tortfeasor whose act, superimposed upon a prior latent condition, results in an injury may be liable in damages for the full disability." The rule deems the injury and not the dormant condition the proximate cause of the plaintiff's harm. Rejects the limit of forseeability that courts ordinarily require.

III.

b. UNEXPECTED VICTIM
i. Palsgraf v. Long Island Railroad Co. – Duty to Protect from Explosion - PL sued DF for the injuries sustained when a package fell out of his hand of one of the train passengers and exploded. A DF owes a duty of care only to those PLs who are in the reasonably foreseeable zone of danger. The railroad was trying to benefit its passengers and if we suppress that act then the railroad would stop doing beneficial things. 1. Andrews (dissent) v. Cardozo 2. Duty is to the world 1. Duty follows the risk 3. Breach is a Wrong 2. Breach must be wrong to PL 4. Anyone Harm to can collect 3. unless we chop off 5. Unless we chop off

c. DIFFERENT INJURY FORESEEABLE
i. In re Polemis – Type II – Duty to Protect from Falling Boards - DF’s unloading cargo on PL vessel dropped a plank into the hold of the vessel which caused a spark that ignited petrol vapors and destroyed the vessel. Although foreseeability is important in determining the existence of negligence, once established, the negligent party is liable for all damages, regardless of foreseeability.

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(Wagon Mound I) – Type II – Duty to Prevent Risk - After being sued for causing an oil spill that later ignited, setting a nearby wharf ablaze, a shipping company sought to avoid liability on the ground that they could not be held liable because the fire was unforeseeable consequence of the oil spill. A DF is liable for only those consequences of his conduct that are reasonably foreseeable at the time he acts. iii. (Wagon Mound II) – Balancing Test - Duty to Protect - Same facts as Wagon Mound I. Here the suit was brought by the owners of the ships damages in the fire, and the court held for the PL on reasoning similar to that in Carroll Towing the burden of eliminating a risk must be balanced against the probability of its materializing times the potential gravity of the harm. The DF should have known that there was a serious risk of the oil on the water catching fire in some way and that if it did, serious damage to ships or other property was not only foreseeable, but very likely, thus making it unreasonable to dismiss such a risk. iv. Doe v. Manheimer - Type II – Duty to Protect from Harm - PL was assaulted by a man on DF’s property, and PL claimed that DF’s failure to remove the brush on the property caused the attack. A negligent act is the legal cause of a PL’s injury only if the injury would not have occurred without the act, and if the negligent act was a substantial factor in producing the PL’s injury. v. Hobo Hollows example: a train improperly carried PL a mile past her stop. Conductor told her to walk (bad neighborhood). Court held that the intervening criminal conduct did no insulate the railroad from liability. This is informed consent, because he had information that he knew she didn’t have, and a special relationship existed. DUTY – Legal obligation imposed on one person for the benefit of another. In negligence, the duty owed by the DF is to conform to the legal standard of reasonable conduct in light of the apparent risk; ii.

a. DUTY TO AVOID HARM FROM OTHER SOURCES
i. Harper v. Herman – Type II – Duty to Warn of Shallow Water - A man sues a boat owner when during an outing on Lake Minnetonka the man dove head first into three feet of water and was paralyzed. A boat owner hosting a social gathering on his boat is under no legal duty to warn his guests that the water is too shallow for diving because the boat owner’s relationship with his guests does not fall into one of the discrete categories that have been acknowledged as giving rise to such a duty. In the absence of a duty to provide protection, superior knowledge of a dangerous condition by itself does not establish liability in negligence. ii. Farwell v. Keaton – Type II – Duty to Care Assumed by DF - A man sues his son’s friend when the son died of severe head injuries after he and his friend got into a fight and the friend after making an initial effort to revive the son, abandoned him in a car in his grandparents’ driveway. When an individual comes to the aid of another, he is subject to the duty to take no action that would leave the victim worse off than before; and friends spending time together socially are under the affirmative obligation to come to each other’s aid in an emergency.

i. Fire Hydrant Case - THEORY OF UNJUSTIFIABLE RELIANCE - DF had a K with city to supply
water and service fire hydrants. A building caught fire and the flames spread to PL’s warehouse, destroying it. The failure in such circumstances to furnish an adequate supply of water is at most the denial of a benefit, not the commission of a wrong. Randi W. v. Muroc Joint Unified School District – Type II – Duty to warn of impropriety of former employee when asked - A vice principal’s last four employers provided his new employer with glowing recommendations of his character and fitness without disclosing that complaints of sexual misconduct had been filed against him, and when he sexually assaulted one of his students, she sued. An employer has the duty to use reasonable care in recommending a former employee without disclosing material negative information that would relate to his fitness of the job. In the future it would be wise for previous employers to either provide full disclosure or provide only job title and dates of employment when giving a job reference. Tarasoff v. Regents of the University of California – Type II – Duty to Warn/Protect Victims from impending harm - A murdered woman’s parents sued the DF because therapists failed to warn their daughter of death threats made towards her by a patient. Once a therapist does in fact determine, or under applicable professional standards reasonably should have determined, that a patient poses serious danger of violence to others, he bears a duty to exercise reasonable care to protect the foreseeable victim of that danger. Uhr v. East Greenbush Central School District - A family sues the school district when, in violation of state law, the school failed to test their daughter for scoliosis with the result that her illness progressed undetected. A court will not infer a private right of action under a statute unless the PL is a member of the class the statute was intended to benefit; recognizing a private right of action would promote the legislative purpose; and recognizing a private right of action would be consistent with the legislative scheme.

ii.

iii.

iv.

b. POLICY BASES FOR INVOKING NO DUTY i. Strauss v. Belle Realty Co. – Type II – Duty to Protect from Fall - A man sues his landlord and the
electric company after he fell down a flight of stairs in his apartment building during a blackout. A public

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utility does not owe a duty of care to those who do not have a contractual relationship with it. Court is protecting customers against shooting themselves in the foot. ii. Reynolds v. Hicks – Type II – Duty to Prevent a Minor from Drinking - The under-age nephew of the groom was served alcohol at a wedding reception and when he caused a car accident on his way home, the injured driver sued the bride and groom. A social-host that supplies a minor with alcohol does not owe a duty of care to third persons that might be injured through the drunk minor’s misconduct. iii. Vince v. Wilson – Type II – Duty to Prevent Risk by not giving money to nephew - After getting into a car accident with a drunk, unlicensed driver, the injured passenger sues the dealership that sold the car to the drunk driver and the woman that paid for the car. The doctrine of negligent entrustment, under which liability arises out of the combined negligence of the incompetent driver and the person that sold him the car, is applied to anyone who sells, lends, leases, or gives a car to an incompetent driver, as well as anyone who financies a car for an incompetent driver. Duty of owners and occupants of land – i. Carter v. Kinney – Type II - Duty to Warn/Protect from Slippery Sidewalk - A man sues the host of a weekly Bible study group after he slipped and fell in the host’s icy driveway. A guest at a weekly social gathering in a private home is not an invitee, but rather a licensee; and the home owner is not subject to the elevated duty of care owed to persons entering his property in order to do business with him. ii. Heins v. Webster County – Type II – Duty to Warn/Protect from Slippery Sidewalk - A PL sues hospital after he slipped and fell on hospital property while visiting his daughter, a nurse. Nebraska courts will no longer apply the common-law distinction between invitees and licensees; instead, landowners will owe a duty of reasonable care to all lawful visitors. 1. In cases applying the Heins approach, juries will determine whether a landowner breached a duty toward all lawful visitors. iii. Posecai v. Wal-Mart Stores, Inc. – Type II - Duty to Protect from Mugging – A woman sues Sam’s Club for negligence after she is mugged in the store’s parking lot. Business have the duty to exercise reasonable care to protect their patrons from the reasonably foreseeable criminal actions of third persons. 1. Balancing Test - balancing the foreseeability of the harm against the burden of imposing a duty to protect against the criminal acts of a third person the existence, frequency, and similarity of prior incidents of crime on the premises are the most important factors with consideration also given to location, nature, and condition of the property.

V.

HARM
a. PHYSICAL HARM b. EMOTIONAL HARM
i. The law permits recovery for emotional distress is limited categories: 1. Emotional distress accompanies physical injury 2. The emotional distress is the result of witnessing the physical injury of a close relative. A ―bystander‖ 3. The emotional distress is inflicted intentionally 4. The PL sustain a physical impact or was placed in immediate risk of physical harm – was in the ―zone of danger‖ created by the defendant’s negligence ii. Typically negligent infliction of emotional distress requires proof of the following elements: 1. The death or serious phsyical injury of another is caused by DF negligence. 2. A marital or intimate familial relationship between PL and the injured person 3. Observation of the death or injury at the scene of the accident; and 4. Resulting severe emotional distress iii. Metro-North Commuter Railroad Company v. Buckley – Type II - Duty to protect from Harm of Asbestos - A railroad employee filed suit under the Federal Employer’s Liability Act, claiming that he suffered emotional distress as a result of the fear of contracting cancer or asbestosis. A PL suing under the Federal Employer’s Liability Act may not recover for emotional distress where he has been exposed to the risk of contracting a disease but has not yet suffered any symptoms of the disease. iv. Gammon v. Osteopathic Hospital of Maine, Inc., - Type II - Duty to Inspect for Body Party in a Bag After the decedent died in a hospital, the decedent’s son was given a bag which contained the severed leg of the pathology specimen; as a result, the son suffered severe emotional distress. A DF may be liable for any foreseeable emotional or psychic harms he negligently causes. v. Porter v. Jaffee – Type II - Duty to Inspect Elevators - After son was trapped in an elevator shaft and died as a result, a woman sued for the mental and emotional distress caused by witnessing her son’s predicament and resulting death. A cause of action for the negligent infliction of emotional distress may be maintained were the plaintiff witnesses the death or severe injury of a close relative at the scene of the accident caused by the DF’s negligence. vi. Johnson v. Jamaica Hospital – Type II - Duty to Prevent Kidnappings - The parents of a baby abducted from a hospital sought to recover from the hospital damages for emotional distress caused by the abduction

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of their child. A parent may not recover damages attributable to emotional distress suffered as a result of the direct injury inflicted on her child by the DF’s negligence, unless the parents was in the zone of danger and witnessed the infliction of the injury. ECONOMIC HARM - When a negligent DF causes injury of purely economic loss, recovery may be obtained, but it usually requires a strict showing of foreseeable PL and foreseeable harm. Usually can’t sue unless physical or property damage. However, where the nature of the negligence is able to be deterred, is one that courts want deterred, the event is easily identifiable, the class of PL is easy to pick out, and the PL are located in close proximity to the event. Airport and NJ case PL allowed. i. Nycal Corporation v. KPMG Peat Marwick LLP – Type II – Duty to Investigate Financial Risk - A company that entered into a stock purchase agreement with the controlling shareholders of a target corporation filed suit against the accounting firm that performed an audit of the target. An accountant who performs his duties negligentlymay be liable to third parties with who he is not in a contractual relationship, if the accountant had actual knowledge of the limited groups of potential parties who would rely on his work and actual knowledge of the particular transaction his work was designed to influence. ii. 532 Madison Ave. Gourmet Foods, Inc. v. Finlandia Center Inc. – Type II – Duty to Prevent Risk of Building Collapse - PL brought suit against DF and others for economic losses it suffered as a result of a partial collapse of a building in NYC and the subsequent closure of streets in the area, which cut off the public’s access to the PL’s 24 hour delicatessen. A landowner may not recover for economic losses caused by an adjoining landowner’s construction defects absent personal injury or property damage.

VI.

DEFENSES
a. CONTRIBUTORY NEGLIGENCE b. COMPARATIVE NEGLIGENCE
i. A negligent PL’s recovery depends PL’s negligence compared to the DF’s. 1. ―pure‖ comparative negligence - the PL who is 90% to blame for an accident can recover 10% of damages from the DF who was found to be 10% at fault 2. ―modified‖ - a PL who is at fault can recover as under the pure system but only so long as that negligence is ―not as great as‖ or ―no greater than‖ the ∆’s. c. AVOIDABLE CONSEQUENCES – If PL fails to act as a reasonable person in order to mitigate her damages, PL can’t recover damages that could have been avoided. i. EX: PL's failure to obtain medical attention or to follow medical advice. No damages for complications that could have been avoided by exercise of due care after an accident. d. ASSUMPTON OF THE RISK - PL voluntarily encounters a known danger and, by his conduct, expressly or impliedly consents to take the risk of the danger. i. Rule: When should assumption of risk be an absolute bar? 1. Not only when you are really unreasonable, if it’s a person who actively chose the unreasonable decision because they wanted the risk and the thrill, wanted the risk for the risk's sake. ii. Elements (from Davenport): 1. PL must have knowledge 2. PL must know conditions are dangerous 3. PL must appreciate the nature of the extent of the danger 4. PL must voluntarily expose himself to the danger iii. Express Agreement 1. Dalury v. S-K-I, Ltd. – Type I&II – Duty to Inspect for Unforeseeable Hazards - Injured skier, PL, sought to invalidate exculpatory agreement based upon violation of public policy. A skier’s assumption of the inherent risks of skiing does not abrogate the ski area’s duty to warn of or correct dangers which, in the exercise of reasonable prudence under the circumstances, could have been foresee and corrected. a. An exculpatory agreement should be upheld if it is "freely and fairly made," between parties "who are in equal bargaining position," and "there is no social interest with which it interferes." Restatement Second of Torts iv. Implied Assumption of the Risk 1. Murphy v. Steeplechase Amusement Co. – Type II - Duty to Warn of Possible Injury - PL sued DF for injuries but the court held that he assumed the risk of sustained injuries by electing to go on the ride. One who partakes in a sport accepts the dangers that inhere in it so far as they are obvious and necessary. 2. Davenport v. Cotton Hope Plantation Horizontal Property Regime – Type II – Duty to Remedy by Fixing Broken Lights - PL was injured during a fall down a stairway when he knew that the floodlight was broken, yet he continued to use the stairway. Assumption of risk is not a complete bar to recovery where a state has adopted a modified comparative negligence system, unless the degree of fault arising there from is greater than the negligence of the DF.

VII.

STRICT LIABILITY

a. THE DOCTRINE
i. Fletcher v. Rylands – Type II - Duty to Investigate for Mine Shafts - A cotton mill operator built a reservoir on land adjacent to an underground mining operation. When the reservoir was filled, the water escaped through some old mine shafts and into the operational mines. **The person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril and be answerable for all the damage that is the natural consequence of its escape. ***A landowner is not responsible for damage to neighboring land caused by the natural use of his land, but is strictly liable for damage caused by the non-natural use of his land. WORLD VIEW    "Pockets" of strict liability The pockets apply to certain activities Abnormally dangerous activites 2 different test: Restatement 3(P.526.) 1) Really dangerous, highly significant risk of harm and; 2) Not of common usage.  purpose is to divide SL and Negligence Restatement 2 pg. 519 1)High degree of risk; 2) harm result great; 3) can’t eliminate risk by exercising reasonable care; 4) activity inapprop. In place or circ; 5) value to community ADVOCATE's VIEW    Negligence: Act without "due care" We focus on the act itself.

Activity based negligence o Where o When o How often - tricky o How you do it Taking down a tree is an activity. Where the choices made by the person in charge of the activity reasonable?

ii. Sullivan v. Dunham – Type II – Duty to Warn/Protect From Falling Trees - A woman was walking on a public road when she was struck and killed by a piece of wood that was thrown by a landowner who was blasting a tree that was on his land. If a landowner cannot use his land in a particular way without causing damage, he must either use his land in some other way or be held responsible for the damage. iii. Indiana Harbor Belt R.R. Co. v. American Cyanamid Co. – Type II – Duty to Inspect for Leaky Train Cars - DF loaded a railway car with toxic chemicals. At PL’s rail yard, these chemicals leaked, causing PL to incur cleanup charges. The manufacture and shipping (as opposed to carrying of toxic chemicals) is not abnormally dangerous.

b. THE THEORY
i. Goals of Strict liability: 1. Loss spreading- assures that the effects of otherwise devastating losses are ameliorated by diffusing them among appropriate entities and individuals; 2. Loss avoidance (risk reduction) – Reductions of accident costs and severity; 3. Loss Allocation (Internalization) – smarter decision for enterprise; 4. Administrative efficiency; 5. Fairness PRODUCT LIABLITY A product can be considered unsafe if it is defective in MFG (workmanship or materials) or design, which defect or danger renders it potentially harmful to normal individuals in the foreseeable use of the product. Initially privity of contract was required, then the foreseeable plaintiff including non-purchasers, a negligence/strict liability approach (IDP and Res Ipsa), now warranty express and implied. i. Restatement 3rd §1: "One engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect." § 2 Outlines three types of defects: 1. Manufacturing defects, product "departs from its intended design"; 2. Design defects, "foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design.."; 3. Inadequate instructions or warning, "when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributors.

VIII.

b. DOCTRINAL DEVELOPMENTS
i. MacPherson v. Buick Motor Co. – Type II – Duty to Inspect Wheels for Stability - PL, a purchaser of a car, was permitted to sue the manufacturer for negligence in spite of the lack of privity of contract. A MFG owes a duty to the users of the product even though the user did not purchase the product directly from the manufacturer. 1. Rule: If a reasonable person would have foreseen that the product would create a risk of harm to human life or limb if not carefully made or supplied, the MFG and supplier are under a duty to all foreseeable users to exercise reasonable care in the MFG and supply of the product.

ii. Escola v. Coca Cola Bottline Co. of Fresno – Type II – Duty to Inspect Bottles - DF was sued for negligence for injuries sustained due to exploding bottle, and concurring opinion advocated strict liability for manufacturer. A non-manufacturer bottling company, which has exclusive control over bottles, can be held liable in negligence for an exploding bottle, even though it is not clear why the bottle exploded, doctrine of Res Ipsa c. MANUFACTURING DEFECTS - Whether the product was flawed or defective because it was not constructed correctly by the manufacturer, regardless to whether the intended design was safe. Defects result from mishap in the manufacturing process, improper workmanship, or use of defective materials. The defect is generally apparent in the flawed unit by the time of trial, and courts have concluded that strict liability should follow. i. SL: The seller is held liable for injuries caused to the PL irrespective of the seller's negligence or even his exercise of all possible care. The rationale of this theory of liability is that the DF is considered better able to assume the risk of loss through insurance or otherwise than is the innocent consumer. d. DESIGN DEFECTS - Risk is the result of a condition intended to exist by the manufacturer. The plaintiff claims that a design choice carries a risk of harm in normal use. i. TEST APPLIED: 1. Unreasonably dangerous - In order to recover, the plaintiff must prove that the design is a defective condition that is unreasonably dangerous (judged by a reasonable consumer standard). 2. Consumer expectations – Consumer doesn’t have to prove that product was unreasonably dangerous, but must only prove defect. To tests to determine whether a product is defective: a. The failure to perform as an "ordinary consumer expects" - products must meet ordinary consumer expectations for safety, or they are defective. b. A product may also be defective if its benefits are outweighed by the risk of danger it creates. (RAD test) ii. Soule v. General Motors Corporation – Type II – Duty to Prevent Risk of Harm to Toes - PL injured in car accident sued DF for design defect, and jury was erroneously instructed on ―consumer expectation‖ test, rather than ―risk-benefit‖ test. Use of the consumer expectations test is not appropriate where the evidence does not permit an inference that the products performance did not meet the minimum safety expectations of its ordinary users, and the jury should therefore be instructed on the alternative risk benefit test of design defect. 1. When the ordinary consumer expectations test is used, expert witnesses may not be used to demonstrate what an ordinary consumer would or should expect. Whenever that is so, "The jury must be instructed solely on the alternative risk- benefit theory of design defect. The second prong in Baker v. Lull. iii. Camacho v. Honda Motor Co. Ltd. – Type II – Duty to Prevent Risk of Harm to Ankles - PL, injured which riding his motorcycle, sued DF the MFG for design defect in not providing crash bars on the motorcycle. Where the danger of the product is open and obvious, the danger-utility test is the appropriate design defect test to use rather than the consumer expectation test. 1. Reasonable Alternative Design (RAD) - PL must prove that a reasonable alternative design would have reduced the foreseeable risk of harm. Experts aren’t necessary, but are permissible, b/c it may be obvious knowledge if other products already on the market serve a similar function at lower risk and comparable cost. a. FACTORS: the magnitude and probability of foreseeable risks of harm, the instructions and warnings accompanying the product (portrayal from marketing), relative advantages and disadvantages of the product and it proposed alternaive (production costs, product longevity, maintenance repair, esthetics). i. MFG should not only consider accidents they cause in design of MFG, but also avoidable harm from accidents caused by third parties or customers using product.

e. SAFETY INSTRUCTIONS AND WARNINGS
i. Purpose of the warnings 1. To deter hazards that occur during the intended use and how to get the benefits from the product without hazards from intended use. 2. Warning from unintended use of the product. 3. Warn what to do if an accident happens. 4. Warn of risks and harms that are associated with the use "side effects" ii. Not to avoid harm. But, allow the consumer to choose the level of risk they want when pursuing a certain benefit. iii. Adequacy of Warnings iv. Hood v. Ryobi America Corporation – Type II – Duty to Warn if Take Guard off Saw - PL, injured while using saw without a guard argued that MFG warnings were not specific enough concerning blade detachment if used without guards. A MFG of a product need not warn the user of every mishap or source

f.

of injury that could possibly flow from the product; rather, the warning need only be one that is reasonable under the circumstances. 1. In determining the adequacy of a warning, ask whether the benefits of a more detailed warning outweigh the costs of requiring the change. More information threatens to undermine the usefulness of the warning altogether. v. Learned Intermediary Doctrine vi. Edwards v. Basel Pharmaceutcals – Wife sued for husband’s wrongful death after he died from smoking while wearing a nicotine patch, and contended that the MFG should have warned her husband of risk, not just the doctor who prescribed the patch. When the FDA requires warnings be given directly to the patient with the prescribed drug, an expectation to the ―learned intermediary doctrine‖ occurs, and the MFG is not automatically shielded from liability by properly warning the prescribing physician. vii. “Hindsight Analysis” No Longer Applied to Duty to Warn viii. Vassalo v. Baxter Healthcare Corporation - Breast implant MFG, DF, challenged state’s law concerning the duty to warn even though the risk was not known at the time of sale. A MFG need only warn of risks that were reasonably foreseeable when the product was sold, or that could have been discovered through testing prior to marketing the product. 1. Manufacturers must look at all the knowledge they have; the burden to investigate is related to the expected harm. If any hint that something would go wrong, must act reasonably with respect to that information. . DEFENSES - Where user discovers the danger and nevertheless proceeds unreasonably, comparative fault may be applied (assumption of the risk). Contributory negligence is always a defense in an action based on negligence. i. General Motors Coporation v. Sanchez – Type II - Duty to Warn of Shifting Problems - MFG, DF, sought to defend wrongful death action based upon deceased’s failure to properly park vehicle in ―Park,‖ which caused it to slip out of gear and crush him. A consumer has no duty to discover or guard against a product defect, but a consumer’s conduct other than the mere failure to discover or guard against a product defect is subject to comparative responsibility. 1. If PL misuses the product or engages in an abnormal use that was not foreseeable, the DF will not be held liable, even under a strict liability theory.

I.

Type I analysis – D is source of risk or created Risk.
Harm - Type 1 Intent – Substantial certainty. Knowledge of Consequences v. Knowledge of the Risk. Cause – ―But for‖ Duty - did you have a duty to not do this? Did you have duty to protect against injury? Victim's duty to protect oneself i. Proximate Cause - Consider Slippery slope, Public/private property [Location], Cost / Benefit (Hand Formula) INTENTIONAL TORTS & HARM -Intent is not only the desire to bring about the physical results, but also the knowledge or belief that certain results are substantially certain to follow from the actor's conduct. It need not be immoral, malicious, or hostile; instead, it need only be intent to affect a legally protected interest in a way that will not be permitted by law. i. Knowledge of the consequences rather than knowledge of the risk is what distinguishes intentional torts from negligence. Knowledge of the risk (which is not intent->leads instead to question of unreasonable risk) and knowledge of the consequences (which is intent to harm). i.e. distinguish intent from negligence. ii. Substantial Certainty 1. Objective standard - Actual knowledge or belief, or lack thereof, on the part of the DF is immaterial if a reasonable person in the position of the DF would have believed that certain results were substantially certain to follow from the conduct of the DF. However, DF age, physical abilities, mental capacity, and special skills, etc are considered, it is the theoretical reasonable person who possesses the same characteristics as the DF. 2. Garratt v. Dailey - A woman brought suit against a young boy when she was injured in a fall that resulted from his pulling his chair out from underneath her. When a person has knowledge to a substantial certainty that harmful or offensive contact will result from a certain action, a battery occurs if that action is taken, even if there is no intent to cause harm to another. b. ASSUALT - DF’s volitional, external movement (no unconscious act or reflex), that causes apprehension of immediate offensive touching. Words alone don't suffice without indication of present ability and intention to do personal violence. Children are liable & doctrine of transferred intent applies. i. Intent - The DF must intend to inflict harm on the PL or put her in fear of an immediate harmful or offensive touching, ―transfer of intent theory" valid. ii. Apprehension - DF must actually put the PL in apprehension of an imminent harmful or offensive touching. Standard is objective reasonable person. iii. Causation – PL apprehension must be caused by DF’s action iv. Damages - it is not necessary to prove actual damages. c. BATTERY – Like Assault (Act + Intent). Volitional act which causes injury and must have been done with the intent to commit the harmful or offensive touching. 1. Test: Did DF act with the desire to cause, or substantially knew that his actions would cause, harm or offense? a. Entirely subjective, DF desires and beliefs. ii. Harmful or offensive touching – direct touch or tantamount to a touching of the PL. 1. Harmful touching - one that inflicts any pain or injury. 2. Offensive Touching – one that offends a reasonable person’s sense of personal dignity. iii. Causation – DF actions must be the legal cause of or force that put in motion the force that results in the PL’s injury’s iv. Damages - Not necessary to prove actual damages. Award based on the commission of the harmful or offensive touch. PL can receive compensatory damages for direct and consequential harm or punitive damages if motivated to intentionally harm the PL. v. Picard v. Barry Pontiac-Buick, Inc. - After PL took a picture of DF service worker inspecting her brakes, the DF became angry, moved toward her, put his finger on the camera she was holding, and said, ―who gave you permission to take my picture?‖ (1) An assault requires an act which puts a person in reasonable fear of immienet bodily harm. (2) A battery occurs when a person intentionally causes an offensive bodily contact with another person, which includes contact with an object connected with that person. vi. Wishnatsky v. Huey -DF was conversing with attorney Cray in Cray’s office, PL Cray’s paralegal, tried to enter without knocking, and DF closed the door pushing PL back into the hall. A person commits an offensive contact battery if he acts with an intent to cause a harmful or offensive contact with another person, and his act directly or indirectly causes a contact with another person which would offend a reasonable sense of personal dignity. d. FALSE IMPRISONMENT - Total obstruction and detention where PL is aware, within enclosed boundaries, it is for any length of time, and with intent by the DF to obstruct or detain the PL or another, without privilege or consent. i. The PL prima facie case includes the following elements: a. b. c. d. e.

II.

e.

f.

1. Act by the DF; 2. Obstruction or detention of the PL 3. Intent; and 4. Casual relationship. ii. Lopez v. Winchell’s Donut House A donut shop clerk voluntarily joined two other employees in a back room where they accused her of theft and questioned her. False imprisonment requires confinement against a person’s will, which may be effected by physical force, a threat of force, or the assertion of authority, but not by moral pressure or a threat of future action. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS - Physical injury or severe mental suffering by the PL resulting from emotional disturbance (without physical impact), caused by highly aggravated words or acts of the DF, done with intent to cause mental suffering or reckless disregard that such is likely to result from such words or acts, and without consent or privilege. i. The words or acts must be extreme and outrages, exceeding all socially acceptable standards, and must cause injury of serious kind to the PL. ii. Generally there is no longer a requirement that there be some physical. The law recognizes that humans must occasionally "blow off steam," and ordinarily DFs are not liable for mere insults that may cause emotional disturbance. iii. Womack v. Eldrige - An investigator took PL picture for an attorney to use in a child molesting case, thus involving PL in the case and causing him severe emotional distress. A person may recover for emotional distress absent physical injury if the distress was severe and resulted from conduct which was outrageous and intolerable or reckless. iv. Objections to this Tort: 1. Difficult to determine, can’t see mental anguish 2. Damage is subtle and speculative (peculiar, variable, hard to asses) 3. Mental distress lends itself to fictitious claims 4. Recognition of liability will open floodgate of litigation 5. Permitting recovery will encourage perjury by overstating facts or fabrication. DEFENSES AND PRIVILEGES - Consent of the PL or the existence of a privilege in the DF will exonerate the DF from liability for an act which, on its face, would otherwise give rise to tort liability. Burden on DF. i. Consent – it must be actual given and be effective. It can be express or implied. 1. Implied-in-fact if PL actions would be understood by a reasonable person to give consent 2. Implied-in-law if circumstances create the privilege (doctor saving a patient). 3. Consent is not effective & not a defense if mistake of fact or law by PL 4. Consent procured by fraud or duress is also ineffective. ii. Hart v. Geysel - PL died as a result of a blow he received in an illegal prize fight he engaged in with DF. One who consents to a particular conduct has no right to recover damages for an injury he sustains when another acts on that consent. iii. Self Defense: If reasonable belief of imminent harm, non deadly force is allowed and there is no duty to retreat or comply w/demands. Deadly force may be used if reasonable belief others conduct will result in death or serious bodily injury, but duty to retreat unless in own home or attempting to arrest. 1. There is no right to retaliate once danger has passed. 2. If excessive force is used in self-defense, the other party can use comparable protection. iv. Courvoisier v. Raymond After being attacked by rioters and unsuccessfully trying to scare them away, DF saw PL approach him, mistakenly believed he was a rioter, and, fearing for his life, shot him. A person is privileged to act in self-defense if the surrounding circumstances would lead a reasonable man to believe that he was in danger of losing his life or of receiving great bodily harm, and the person does so believe. v. Defense of Property (parallels rule of self defense) 1. Katko v. Briney DF set a spring gun in his unoccupied farm house, and the gun seriously injured PL when he broke in the house to steal old bottles and fruit jars. An owner has a privilege to use reasonable force to protect his property, but this privilege does not allow him to use a deadly trap in an unoccupied building to protect his property against trespassers and thieves. vi. Private Necessity – When no public interest involved and DF acts to protect his own interest, he is not liable for the technical tort, but only for actual harm caused. The landowner has no privilege to expel him. vii. Public necessity – There is privilege to enter land if it is necessary or appears reasonably necessary. Rationale is when peril threatens everyone, one is justified to act. Complete defense. To invoke necessity there must be: 1. An immediate and imperative necessity and not just one that is expedient or utilitarian. 2. An act that is in good faith, for the public good. viii. Vincent v. Lake Erie Transportation Co. During a fierce storm, a steamship was repeatedly thrown against a dock, causing damage to the dock. Damage caused to another’s property due to necessity requires compensation for the actual harm caused.


				
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