- Intent Def: D must have intended to bring about some sort of mental or

physical effect upon the other person. It is formed if the actor desires to cause the consequences of his act and the consequences are substantially certain to result from it. OR If the actor desires to cause the consequences of his act or believes that the consequences are substantially certain to result from it. OR intentional infliction of harmful or offensive contact with the person of the P. D act must b intentional and the act must cause a contact with the victim and the intended contact must be either harmful or offensive to the victim. Willful Intent is formed if the action is:

o Purposefulo Knowing

Substantial Certainty Test If D knows with substantial certainty that an

particular event will occur as a result of his or her actions then you are deemed to have intended that result. A high likely hood is not enough it has to be more then that

If D know with substantial certainty that a particular effect will occur as a result of her action, she is deemed to have intended that result.

EX: When the 5yr old moved the chair he didn’t want his aunt to fall and hurt herself but he knew her falling would result because of his action.

o Merely intending to engaging in the act that caused the harm is enough

o The act requirement for intentional tort liability refers to a volitional movement on D part.

o Specific and General Intent Specific: An actor intends the consequences of his goal

in acting is to bring about these consequences General An actor intend the consequences of his

conduct if he knows with substantial certainty that these consequences will result.

o D intended to tap P lightly on the chin to annoy him I P has a glass jaw, which is broke by the light blow, D has still intended to cause the contact, and the intentional tort of battery has taken place even though consequences were not intended.

o Mistake Doctrine: If a D intends to do acts which would constitute a tort, it is no defense that the D mistakes even reasonably the identity of the property or person he acts upon or believes incorrectly there is a privilege. A shoots B dog reasonably believing it is a wolf, A is liable to B assuming B has not wrongfully induced the mistake

o Young children: Under the age of 7 incapable of intentional torts young children may be capable of intentional tort even though too young to be capable of neg

Child Liability Over 7

o children may be liable for torts they commit as long as the injured plaintiff can prove the required elements including intent.

o A child in most states cant escape tort liability bc of young age

Under 7o Presumed to be incapable of harmful intento Many states go further to say children under 7 are

assumed to be incapable of committing any tort at all Parental Liability

o If the statue authorizes a suit claiming parental liability so the statues requirements for recovery must be met or if the parents are themselves at fault

Statues imposing liability on parents for their children’s torts exist in almost every state limited in 2 ways:

o The child’s tort must have been committed willfully or wantonly

o The damages that may be obtained are limited o Some states cap damages at a low amount while others

are less restrictiveo Court will look for on a statutory claim to see whether

the child acts fit under the statutory definition that gives rise to parental liability

o P who sue parents will claim it was the parents own fault bc they negligently supervised the child and that caused the P harm

That’s diff to win Children do not have money so often parents

insurance company will cover the minor child living in the household

o Mentally Incompetent Person in most places are liable for intentional torts even though incapable of forming a purpose of understanding the consequences

o The act must be intentionally and substantially certain but the consequences need not be.

Ex: D intends to tap P lightly on the chin to annoy him. If P has a glass jaw which is broken by the blow, D has intended to cause the contact and the intentional tort of battery has taken place even though the consequences (broken jaw) were not intended.

o if harm is intended the tort is intentional. If not and D conduct merely creates a foreseeable risk of harm then D conduct is either neg or reckless depending upon the magnitude and probability of risk and D's consciousness of it.

EX: if Lopez faints and falls on Joe he is not liable for battery bc he has not acted intentionally.

Transferred Intento Applied very limited in this tort mostly P will not recovero Limitations on the Use of Transferred intent is limited to

assault, battery, false imprisonment, trespass to land, and trespass to chattel

o Immediate family present exception D directs his conduct to a member of P immediate

family and P is present and P's presence is known to Do D's Conduct: Must be extreme, outrageous, intolerable and

not merely insulting or profane. Unless D knows of some special sensitivity of P mere verbal abuse and threats to do what D has legal right to do are generally not actionable absent circumstances of aggravation.

o Transferred Intent: If D held the necessary intent towards person A but person B was injured by the action then the intent transfer to person B.If you miss your intended victim and actually harm another then the intent carries making you liable for the actual harm that resulted.

EX: D shoots at A, and accidentally hits B. D is liable to B for the intentional tort of battery.

o Under the "transferred intent" if D held the necessary intent with respect to person A. he will be held to have committed an intentional tort against any other person who happens to be injured.

o If the intent requirement is met for one person then it can be transferred to another.

o EX: If she tries to frighten Lopez by shooting near her, but the bullet hits her instead, she will be liable for battery even though she intended to commit an assault instead.

Intent is used to denote that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it.

o Minors and incompetents will be liable for their intentional torts they are said to hold to possess requisite intent

Intentional Torts are very avoidable bc they require a deliberate choice to invade another's rights, the actor need only restrain herself to avoid invasion. Where she fails to do so it ok to impose all the resulting damages even the unintended damages.

The causation requirement will be satified where the conduct of the D is a substantial factor in bringing about the injury

- Battery

Def: battery protects against intentional invasions of the P physical integrity. No contact is intentional if it is not the result of a voluntary act. Intentional infliction of a harmful or offensive bodily contact.

EE Def: the intentional infliction of a harmful or offensive contact with the person of the plaintiff

Touching of another person must be done in arude, angry ot insolent manner in order to constitute a tort

Intent: not necessary that D desires to physically harm P. D has the necessary intent for battery if it is the case either that: (1) D intended to cause a harmful or offensive(damaging to a reasonable sense of dignity) bodily contact or (2) D intended to cause an imminent apprehension of P's part of a harmful or offensive bodily contact

o EX: D shoots at P, intending to hit him with the bullet. D has the necessary intent for battery.

o EX: D shoots at P, intending to miss P, but also intending to make P think that P would be hit. D has the intent needed for battery

Reasonable sense of dignity= because a person of average sensitivity in Ps position would have her dignity offended

An act by D which brings about harmful or offensive contact to the P person; Intent on the part of the D to bring about harmful or offensive contact to the P person and causation.

Harmful offensive is determined by whether it would be considered harmful or offensive by a reasonable person of ordinary sensibilities. Contact is deemed offensive if the P has not expressly or impliedly consented to it.

Causation is direct or indirect and it is sufficient if he set in motion a force that bring about harmful or offensive contact to the P person

A person may recover for battery even though he is not conscious of the harmful or offensive contact when it occurs.

Battery can occur by intentional snatching of an object from one's hand is as clearly an offensive invasion of his person as would be an actual contact with the body

In most states children may be found liable of intentional torts. In some states children under 7 are assumed to young and incapable of harmful intent required

Was there contact? Was there intent to commit a contact or harmful touching? For a defense, was the defendant justified in committing the battery?

An intentional infliction of a harmful or offensive bodily contact. OR Harmful or offensive contact (direct or indirect) with P's person caused by D with the required intent. D must have acted intending to cause a harmful or offensive contact with P or another or apprehension of such contact. OR Harmful or offensive contact (direct or indirect) with P's person caused by D with required intent. D must have acted intending to cause a harmful or offensive contact with P (or another) or an apprehension of such contact

o EX: A intentionally punches B in the nose. A has committed a battery.

o EX: D shoots at P intending to hit him. That's the intent necessary for battery.

EX: If Smith pushes Lopez into Jones then Lopez has not acted and is not liable for battering Jones.

An act is an external manifestation of the actors will. To commit a battery the D must not only intent to act she must act

for the purpose of inflicting a harmful or offensive contact on the plaintiff, or realize that such a contact is substantially certain to result from it.

P's Person includes his body and things in contact with it or closely associated with it. P need not be aware of the contact at the time it occurs. it is not necessary that P have actual awareness

o EX: If D kisses P while P is asleep then a battery has been committed.

D only has to have intended contact doesn’t matter if they intended no harm or offense

If P consented to the contact then D is privilege and there is no harm.

However if the bodily contact goes beyond what is consented then the consent is invalid. Look for this in sporting events and medical/ surgical procedures

Intent: It is not necessary that D desires to physically harm P. D has the necessary intent for battery if it is the case either that: (1) D intended to cause harmful or offensive bodily contact or (2) D intended to cause an imminent apprehension on Ps part of a harmful or offensive bodily contact.

If consent given then cant go beyond the conduct that was consented to ...

It went beyond the level or type of contact D knew or should have known P impliedly consenting to then it would constitute battery

Harmful or offensive contact: If the contact is harmful (it causes pain or bodily damage). Battery also covers contacts that are merely offensive or interfere with a reasonable sense of dignity. A harmful contact is one that produces bodily harm. An offensive contact is one which offends a reasonable sense of personal dignity as by being hostile, insulting, loathsome, or unduly personal.

o EX: D spits on P. Even if P is not harmed (meaning no physical pain or injury) a battery has occurred because an avg person's dignity would be offended.

o Diff from socially accepted customso bodily harm is any physical impairment of the condition of

another's body or physical pain or illness. If the harm is minor the P will recover little.

o A contact that is offensive is one that would be offensive to a reasonable persons sense of dignity

If a person is sensitive and the D knows of this then they are liable if they however do not know of this then if a reasonable person would not have been offended then D is not liable

When one acts with a person which is surely an offensive contact and they succeed in causing the contact at the point that battery is complete then the D is liable for all the possible consequences of that battery

The test is what a reasonable person would find offensive under similar circumstances

If D is aware P is extra sensitive then although a reasonable person would not be offended and P is then because D knew ahead of time this is a battery.

An act by D done with the required intent which arises in a reasonable apprehension of an imminent battery. D must have acted intending to cause a harmful or offensive contact with P (or another) or to cause an imminent apprehension of such a contact.

Elements of Batteryo Contact that is offensive to a reasonable sense of personal

dignity may subject the person committing the contact to liability for battery

o The right to refuse medical treatment, if violated, can serve as the basis for a claim of battery or intentional infliction of emotional distress.

o P who claims battery must that the D intended to cause harmful or offensive contact with the claimant

o The intent necessary for the commission of a battery is present when the person knowing with substantial certainty that the harmful contact will occur. A party must have been aware of the offensiveness of her conduct in order to be held liable for battery

Purpose of the intent requirement is to make the D liable when their acts with a higher level of culpability then mere carelessness: where she acts with purpose, or with knowledge that the act will cause harmful or offensive contact to the victim.

Intent is met by either purpose to cause tortious contact or substantially certainty that such contact will result.

An actor can possess tortious intent even though she bears the victim no ill will at all.

Caseso Van Camp: P must plead and prove facts est the D wrongful

Conducto Snyder: Contact that is offensive to a reasonable sense of

personal dignity may subject the individual committing the contact to liability 4 battery.

o Cohen: The right to refuse med treatment if violated can serve as a basis for claim

o Mullins: P alleging battery must show that the D intended to cause harmful or offensive contact with the P.

o Garratt: Intent is present when the person acts knowing with substantial certainty that the harmful contact will occur.

o White: Party must have been aware of the offensiveness of her conduct in order to be held liable for the intentional battery.

Contact Requirement: The D need not actually touch the P at all or even be present at the time of the contact to commit a battery.

o EX: Setting out a trip wire and knowing that the P will trip on satisfies contact requirement.

o An actor is liable regardless of whether she uses her fist or another weapon to cause the contact if it is intended t cause a harmful or offensive contact tot he P.

o This also include object intimately associated with the victims body.

Liable for all the resulting injuries even the unexpected ones upon completion of the battery

If you do not intent to cause the harmful or offensive contact then you are not liable for it even if the contact in it of itself turned out to harmful consequences

-Assault Assault allows the recovery for interference with peace of mind

even where there is no physical invasion of the victims person or property. Protects against mental tranquility and ones right to be free from fear or apprehension of unwanted contact

words alone are not sufficient by themselves to be assault there must be some over act, physical gesture by D. Words alone do not make a actor liable for assault unless together with other acts that put a reasonable apprehension of imminent contact. Unless countered by words that negate the possibility of assault

Exception: surrounding circumstances or D's past acts may occasionally make it reasonable for P to interpret Ds words alone as creating the required apprehension of imminent contact

So where D is pulling a prank or making a bluff if P believes or knows that no imminent harmful or offensive contact will really occur and non does occur there is not assault.

An act by the D creating a reasonable apprehension in P of immediate harmful or offensive contact to P person; intent on the part of the D to bring about in the P apprehension of immediate harmful or offensive contact with the P person and causation

apprehension is not fear or intimidation rather expectation P must be aware of the D act. Contrasted with battery where the P

need not be aware of the contact at the time An act by the D creating a reasonable apprehension in P or

immediate harmful or offensive contact to P person; Intent on the part of the D to rbing about in the P apprehension of immediate harmful or offensive contact with the P person and causation

Intentional causing of an apprehension of harmful or offensive contact. An act by D with intent that arouses P to have a reasonable apprehension of a imminent battery. D must have acted intending to cause harmful or offensive contact with P (or another) or to cause an imminent apprehension of such contact. OR This is an act done by D with the req'd intent which in P a reasonable apprehension of imminent battery. D must have acted intending to cause a harmful or offensive contact with P or another or to cause an imminent apprehension of such a contact.

Was there intent to commit a harmful or unwanted touching? Was there the ability to commit a harmful or unwanted touching? Was the plaintiff in imminent apprehension of a harmful or unwanted touching?

Intent to create apprehension: D intends to put P in imminent apprehension of the harmful or offensive contact even if D doesn't intend to follow through

So D has the requisite intent for assault if D either "intends to commit an assault" or "intends to commit a battery."

Intent to make contact: Alternatively, D intends to in fact cause a harmful or offensive bodily contact.

o EX: D threatens to shoot P but doesn't intend to actually shoot P

o EX: D shots a gun at P trying to hit him. D hopes P wont see him but P does. P is frightened, but the shot misses. This is an assault

Ordinarily words alone are not sufficient, by themselves to give rise to an assault. Normally, there must be some overt act a physical act or gesture by D before P can claim to have been assaulted. surrounding circumstances or Ds past acts may occasionally make it reasonable for P to interpret D's words alone as creating the required apprehension of imminent contact.

Apprehension o P must have been aware of D's threatening act at the time

before it is terminated. Apprehension is all that is required, P need not be afraid. If D assault is direct at P, D is subject to liability even thou P apprehension is unreasonable.

o An assault may occur even when D's act is directed against a third person, or when it is apparent to P that D intended only an assault, provided P reasonably perceives the threat of a battery to P.

o Apprehension of harmful or offensive contact must be reasonable one. Courts generally will not protect P against exaggerated dear of contact (unless D knows of unreasonable fear and uses it to put P in apprehension).

Apprehension is not the same as fear or intimidation. Apprehension is the sense of expectation. Thus, one may reasonably apprehend an immediate contact although he believes he can defend himself or otherwise avoid it.

Knowledge of the Act Required : For there to be apprehension the P must have been aware of the D act. unlike for battery.

Knowledge of the D Identity Not Required : It is not necessary that the P know who the D is at the time of the act. (one only need apprehend an immediate harmful or offensive contact, not the identity of the person who is directing this unpermitted force at him.

D apparent ability to act is sufficient: A person may be placed in reasonable apprehension of immediate harmful or offensive contact even though the D is not actually capable of causing injury to the P person. For such apprehension to be reasonable it is necessary that the D have the apparent ability to being about such contact. EX: A points an unloaded gun at B. B does not know that the gun is not loaded. B apprehension of immediate harmful or offensive contact is reasonable.

Imminent: Contact must be perceived as imminent. There must be an apparent intent and apparent present ability to carry out the threat immediately. Mere words unaccompanied by physical act are not an assault. Words may give meaning to movement. A conditional threat may be an assault unless D is privileged to enforce the condition. P harms is imminent and that D has the present ability to carry out the threat.

Some over act is necessary as words alone no matter how violent do not generally constitute an assault because they cant create a reasonable apprehension of immediate harmful or offensive contact.

Words may negate an assault by making unreasonable any apprehension of immediate contact even though the D commits a hostile act. EX: Clenching ones fist while saying "If I weren't such a good person Id hit you." There is no reasonable apprehension of harmful or offensive contact.

If the words and act combine to form a conditional threat an assault will result. EX: Robber points a gun at the P and says " your money or your life". The robber is liable for assault

Apprehension must be of immediate harmful or offensive contact. Threats of future contact are insufficient. There is no assault if the D is too far away to do any harm or is merely preparing for the future harmful act.

EX: P sees D raise a pistol at Ps husband. D shot and misses. P cant recover for assault, because she did not fear a contact with her own body.

Cases:o Cullison: Assault is not sustainable where a jury could

conclude that the D intended to frighten the P and that the P apprehension of being injured was one that would normally be aroused in the mind of a reasonable person

- False Imprisonment Is defined as the intentional infliction of a confinement for a

reasonable period of time without known means of escape. intentional infliction of a confinement EX: D wants to have sex with P and locks her in his bedroom for 2

hrs hoping she willl agree. She does not and D lets her go. Thats is false imprisonment bc D has intentionally confined P for a substantially time.

FI cant be committed by merely negligent of reckless acts. idea of confinement is that she is held within certain limits not that

she si not allowed to enter certain places Can be committed by direct physical means but also by threats or

by assertion of legal authority If D threatens to use force if P tries to escape the requirement

confinement exists. D may assert that he has legal authority over P P must either be aware of the confinement or must suffer some

actual harm 2. P must show that D either intended to confine him or at least

that D knew with substantial certainty that P would be confined by D's actions.

3. P must be held in an area with no reasonable means of escape known to P.

4. The imprisonment may be carried out by direct physical means but also by threats or by the assertion of legal authority.

a. If D threatens to use force if P tries to escape the requisite confinement exists

b. D asserts that he has legal authority to confine P (even if D does not have legal authority) as long as P reasonably believes that D does.

5. P must know or be aware of the confinement. Or suffer actual harm.

6. Rule: Occurs when D intending to confine P or another w/in boundaries fixed by D so confines P and P is conscious of the confinement or is harmed by it

7. Intent. Merely the intent to confine. Mistaken identity is no excuse nor is good faith belief that the confinement is justified.

Were there reasonable grounds to detain the plaintiff? Was the plaintiff detained for a reasonable amount of time? Was the plaintiff detained in a reasonable manner? Was the plaintiff in fact confined? Was the confinement complete? Was the plaintiff injured or prevented from leaving the confinement? Was the plaintiff conscious of the confinement?

8. Confinement: When P is prevent from leaving a given area even when that area is relatively large. Confinement must be complete and P must have no reasonable or safe exit known to him. Confinement may be by means of actual or apparent physical barriers, physical force or credible threats of physical force, D threaten to harm another or property. Moral or social pressure is not enough.

9. Shoplifters: Shopkeepers may be privileged to detain persons suspected of shoplifting for a reasonable time only for the purpose of conducting an investigation.

Accessories: D must have been an active and knowing participant in procuring or instigating the confinement, including its wrongful aspect.

Cases:

o Mc.Cannv Walmart : Threat of physical force or a claim of lawful authority to restrain is sufficient to show confinement in an action for FI.

An act or omission to act on the part of the D that confines or restrains the P to a bounded area. Intent on the part of the D to confine or restrain the P to be bounded area.

D may imprison P by confining him through the use of physical barriers.

FI will result where P is restrained by the use of physical force directed at him or a member of his immediate family. An action may also lie if the force is directed against P property. EX: Lulu remained in abuilding bc her purse had been confiscated by Chauncey. She could have left the building but that would have necessitated leaving the purse behind. FI could result if the purse was wrongfully withheld.

Direct threats of force by the D to the P person or property or against persons of the P immediate family can constitute FI.

FI can also arise from indirect threats of force. Acts or words that reasonably imply that the D will use force against P person or property of P immediate family.

Invalid use of legal authority amounts to FI if it resuls in a confinement of P. When an arrest by private citzen pr police without a warrant is unlawful and is FI.

ADD DIF TYPES OF ARREST BY POLICE and private individuals that are and are not allow pg 27 from barbri inlcude am of force allowed for each

Shoplifting Detentions Are Privileged: By statue some states have given shopkeepers have given a privilege to detain for investigation. Conditions must be satisfied: There must be a reasonable belief as to the fact of theft; the detention must be conducted in a reasonable manner and only nondeadly force can be used; and the detention must be only for a reasonable period of time and only for the purpose of making an investigation.

Length of time is not relavent Generally awareness of confinement is needed but if P is not aware

then he must be injured by the confinement then the requirement is still met.

Bounded area restrains freedom of movement in all directions must be limited. With no reasonable means of escape of which the P is aware.

P confinement must have been legally cause by the D act or something set in motion thereby either directly or indirectly

FALSE ARREST

- Intentional Infliction of Emotional Distress D. Intentional Infliction of Emotional( mental ) Distress

(IIED)

1. Intentional or reckless infliction, by extreme and outrageous conduct , of severe emotional or mental distress, even in the absence of physical harm. When D by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to P, D is subject to liability to P for that emotional distress and for any resulting bodily harm.

An act by D amounting to extreme adn outrageous conduct; intent or part of D to cause P to sufer sever emotional distress or reckless as to the effect of D conduct

Was the conduct outrageous or in reckless disregard for the possibility of causing emotional distress? Did the plaintiff suffer severe emotional distress? Did the defendant’s behavior cause the severe emotional distress?

Must be present: o Conduct is intentional or recklesso Conduct is extreme and outrageouso Causal connection between conduct and emotional

distresso Distress must be sever

Intent 3 Types o D desires to cause P emotional distresso D knows with substantial certainty that P will suffer emotional

distress o D recklessly disregards the high probability that emotional

distress will occur. Only sever emotional distress is actionable. Unhappiness for a short

time is not sufficient. Most places no longer require that there be a physical manifestation from the mental suffering

Where a D intentionally socks the P but there is no physical injury or threat there of.

Offensive or insulting language is not sufficient unless there is a special relationship between the P and D where the D knows of the P sensitivity.

D will be liable for intentional conduct as well as reckless conduct acting in disregard of high probability that emotional distress will result.

When the D intentionally causes severe physical harm to a 3rd person and the P suffers severe emotional distress because of her relationship to the injured person intent and causation are harder to prove. P must prove then that P was present when the injury occurred to the other person; The P was a close relative of the injured person and; the D knew that the P was present and a close relative of the injured person

o EX: D called Susan and threatened to kill Mikes with whom D knew Susuan was living. D then made food on his threat. Liability will attach when Susan suffers sever emotional distress by showing that D purpose was to cause her severe distress even though she was not a relative of Mike and was not present when he was murdered.

This is only when there is outrageous conduct.o Outrageous conduct is conduct that transcends all bounds of

decency tolerated by society. EX: extreme business conduct, misuse of authority

Abuse of Power: When D threats go beyond the ordinary means of persuasion and are then flagrant abuses of power in the nature of extortion.

o 3rd Person: if D intentionally or recklessly causes sever emotional distress to P by such conduct that either

P witnesses D's conduct and the 3rd knows of Ps presence and 3rd is a member of P immediate family OR

P severe emotional distress results in bodily harm o D is liable only if P response is within reasonable bounds of

normal human reactions unless D knew od P extraordinary sensitivity and proceeded anyway.

o Transferred Intent doesn't apply here unless the above exceptions

o Next of kin may have a case for mishandling of a corpseo Public figures/officials may not recover here unless they can

prove actual malice with false statements. - Trespass to Land

Rule: D trespasses on Ps land when he intentionally (a) himself enters the land or causes a thing or 3rd person to enter (b) remains on the land after privileged to be there was expired or (c) fails to remove form the land something which he has duty to remove. P may only sue if they re immediate possessions of the land.

Def: Trespass occurs either (1) D intentionally enters P land, without permission; (2) D remains on Ps land without right to be there, even if she entered rightfully; or (3) D puts an object on ( or refuses to remove an object from ) Ps land without permission

Intent: Intent required is merely to enter upon the land, cause the entry or remain. D's good faith but erroneous belief that he has the right to be there is no defense

Mistake to enter even fi based on thinking it is your land is not a valid defense

May be above or below the surface exception for commercial aircrafts as the publics need for aviation.

Shooting a gun over the land is substantial interference thus it is treespass where airplanes are not due to policy

Still trespass if you cause something to enter the land If trespass is intentional w/out proof of actual harm then P may

recover. An act of physical invasion of P real property by D; intent on D part

to bring about a physical invasion of P real property. All that is necessary is to satisfy this element is that there be a

physical invasion of P land D need not enter onto Land: It is not necessary that the D

personally come onto the land ( D floods P land throws a rock on it or chases a 3rd person on to it)

A trespass to land may also exist where D remain on Ps land after an otherwise lawful right of entry has lapsed.

Trespass can occur above or below land with respect to the policy need for aviation

Mistake is no excuse Intent to enter onto the land is sufficient The action may be brought for anyone with actual possession of the

land Nuisance is different aspect of this tort it is an interference with the

use and enjoyment like loud music keeping someone up and thus not allowing them to enjoy the use of their land

- Trespass to Chattel D commits this when he intentionally interferes with it by physical

contact or dispossession and there is a diminished value. And P is the owner of the chattel.

Def: Any intentional interference with a person's use or possession of a chattel. D only has to pay damages not the full value of the property ( as in conversion)

o Loss of possession: If P loses possession of the chattel for any time recovery is allowed even if the chattel is returned unharmed.

o Electronic trespass on computer: If D interacts with Ps computer without permission, whether this is trespass depends on the type of harm that occurs.

D mistake that he owns the chattel even if mistaken with good faith is no defense.

o No harm to computer data: If D conduct is rather just bothersome and does not harm the computer. not trespass to chattel

o Harm done: computer or if data damaged then trespass to chattel occurs.

Any impairment of chattels condition, quality or value is a form of trespass.

Dispossession consists of taking the chattel from Ps possession w/out consent, fraud or duress barring P access to chattel or destroying it. Even for a short while is still trespass.

P must prove actual damages. An act of the D that interferes with P right of possession in the

chattel; intent to perform the act bringing about the interference with P right of possession

- Conversion Rule: Intentional exercise of dominion or control over a chattel

which is so seriously interferes with Ps right to control it that D may justly be required to P its full value. Extreme trespass to chattel as to justify P to purchase it.

Intentional interference with Ps possession or ownership of property that is so substantial that D should be required to pay the property full value.

Intent: Conversion is an intentional tot but all that is required is that D have intended to take possession of the property. Mistake as to ownership will not be a defense typically.

Photos are not conversion since the originals are not harmed Distinguish from trespass to chattels: Courts consider several

factors in determining when D's interference with Ps possessory rights is to sever enough to be conversion to just trespass to chattels. Facts: duration of D dominion over the property;2) Ds good or bad faith; 3) the harm done to the property; and 4) the inconvenience caused to P.

Different ways to commit:o Acquiring possession: D takes possession of the

property from P. Bona fide purchaser: Majority hold that a bona

fide purchaser of stolen goods is a converter, even if there is no way he could have known that they were stolen.

o Transfer to the third person: D can also commit conversion by transferring a chattel to one who is not entitled to it.

o Withholding good: D may commit conversion by refusing to return goods to their owner if the refusal lasts for a substantial time.

o Destruction: Conversion may occur if D destroys the goods or fundamentally alters them.

Forced sale: If P is successful with her tort suit, a forced sale occurs: D is required to pay the full value of the goods (not just the amount of the use or damage ad in trespass to chattel) but gets to keep the goods.

An act by D interfering with P right of possession in the chattel that is serious enough in nature or consequences to warrant that the D pay the full value of the chattel; intent to perform the act bringing about the interference with P right of possession

Wrongful acquisition (theft, embezzlement), wrongful transfer(selling, misdelivering, pledging), wrongful detention ( refusing to return to owner), substantially changing, severely damaging or destroying, misusing the chattel

Even a bona fide purchaser of chattel may become a converter if the chattel had been stolen

Ct considers several factor when deciding this: duration of D domain over the property, Ds good faith or bad faith, the harm done to the property and the inconvence cause to P.

Accidentally causing damage to or loss of another's chattel doesn't amount to conversion unless the actor using the chattel without permission when the accident occurred

Is taking a pic conversion? tangible and intangible property can be subject to conversion Interference wit P chattel interests must have been legally caused

by the D act or something set in motion thereby Important Factors:

o Duration of D's exercise of dominion or control

o Ds intent to assert a right which is in fact inconsistent with Ps right of control

o D's good faitho Harm doneo Inconvience and expense caused to Po Only intent required is the intent to exercise dominion or

control but mistake is no defense. o This can occur thru moving chattel, acquiring possession,

unauthorized transfer/delivery/disposal, withholds possession, destroys/materially alters and if value is diminished greatly by using then that is enough

o Damages can be the full value of the chattel at the time of conversion plus interest.

- Forcible Harms as Civil Rights Violations The §1983 Claim

o Was designed to protect all people and citizens from deprivation of any constitutionally protected rights. Many times can also be a suit for an intentional tort however this will bring the claim to federal court

o This places the burden on the plaintiff to establish that someone usually the state or municipal officer acted under the color of state law and that the action deprived the plaintiff of a federal right

Exemplars of the Constitutional Violations Every person under color of any statute, ordinance,

regulation, custom, or usage of any state, territory or DC cant be deprived of any rights, privileges or immunites secured by law or under the constitution shall be liable to the party injured in the action at law or the redress

o Designed to prevent states from denying freed persons the rights given to them by the federal govt it is not limited to racial discrimination

- Defenses to Intentional Torts: Privileges Protecting Against Misconduct of P -Affirmative Defenses-

o Self-Defense D has a privilege to use as much force as reasonably

appears to be immediately necessary to protect himself against imminent physical harm threatened by the intentional negligent conduct of another.

Self-defense must be in response to an immediate threat of harm

There is generally no obligation to retreat from force not threatening death or serious bodily harm

Retreat is often required unless within ones own home Majority of courts do not require a retreat assuming

that the threatened individual has a right to be there This is not a defense on when made reasonablyss

D may use deadly force only when he reasonably believes that he is danger of similar harm and he is not required to retreat or escape.

Privilege extend when he reasonably mistakenly self-defense is necessary

When a person has reasonable grounds to believe that he is being or is about to be attacked he may use such force as is reasonably necessary for protection against the potential injury.

Privileged to use reasonable force to defend against a battery or false imprisonment

If a mistake then you are privileged to use reasonable force to forestall the attack and minimize the effects

Insults and provocation is not merely enough Def. A person is entitled to use reasonable force to

prevent any threatened harmful or offensive bodily contact and any threatened confinement or imprisonment.

Apparent necessity: Self-defense may be used not only where there is a real threat of harm, but also where D reasonably believes that there is one.

Only for protection: Applies only where D uses the force need to protect himself against harm.

Retaliation: cant do this for a tort already committed.

Imminence: D may not use force to avoid harm which is not imminent unless it reasonably appears that there will not be later chance to prevent the danger.

Verbal provocation: D may not use self-defense in response to verbal provocation such as taunting or insults. Self-defines is purely a forward=looking idea: D is entitled to prevent imminent future harm, not redress past harm, especially purely verbal harm.

Degree of force: Only the degree of force necessary to prevent the threatened may be used. If D uses more force than necessary, he will be liable for damage caused by the excess.

Deadly force: Special rules limit the use of deadly force ( force intended or likely to cause death or serious bodily injury.

Danger must be serious: D may not use deadly force unless he himself is in danger of death or serious bodily harm.

Retreat: Courts are split on whether an dwhen D has a duty to retreat if the threatened harm could have been avoided this way.

Restatement: D may use non-deadly force rather then retreating; but D may not used deadly force in lieu of retreating except if attacked in his dwelling by one who does not reside in the dwelling.

When Is Defense Available? Reasonable Belief: The actor need only have a

reasonable belief as to other party's actions (apparent consent not actual consent is sufficient).

Not applicable for retaliation Retreat Not Necessary: Majority of the courts

hold that one need not attempt to escape but may stand his ground ( and even use deadly force when necessary to prevent death or serious bodily harm to himself). Modern trend would impose a duty to retreat before using deadly force where this can be done safely unless the actor is in his own home.

Not Available to Aggressor: The initial aggressor is not privileged to defend himself against the other party's reasonable use of force in self-defense. However, if the other uses deadly force against an aggressor who had only used non-deadly force the aggressor may defend himself with deadly force.

You can use only that force reasonably appears to be necessary to prevent the harm. Cant use deadly force unless you reasonably believe that is what is coming. If more force then necessary is used the you lose the privilege.

If in the course of defending oneself then you accidentally injures a bystander then you are still protected by the defense. If you however deliberately injury a bystander in trying to protect yourself them you probably cant use privilege

o Recapture of Chattels A property owner has the general right to use

reasonable force to regain possession of chattels taken from her by someone else.

Fresh Pursuit: The privilege exists only if the property owner is in fresh pursuit to recover his property. That is the owner must act without unreasonable delay. Imminent pursuit

Reasonable force: The force must be reasonable and deadly force can never be used. Never use deadly force.

Wrongful taking: The privilege exists only if the property was taken wrongfully from the owner. If the owner parts willingly with possession and n event then occurs which gives him the right to repossess the set, because A's original possession was not wrongful.

Merchant: Where a merchant reasonably believes that a person is stealing his property, many courts give the merchant a privilege to temporarily detain the person for investigation.

If a merchant or their security agents acts in good faith us allowed to act under this law

Immunity for liability is under 3 reasonableness requirement:

Must be a reasonable cause to believe that the person violated this

Manner of the detention and the actions taken in an attempt to detain must be reasonable

The length of time of the detention and the actions take to detain them

Must be in vicinity Limited time: The detention must be

limited to a short time, generally 10 or 15 minutes or less, just long enough to determine whether the person has really shoplifted or not. Then, the police must be called (the merchant may not purport to arrest the suspect himself.)

Merchants may use reasonable force to detain a suspect however if they are wrong can be liable for false imprisonment

o Defenses of 3rd Person (Others) Rule: A person may use reasonable force to defend

another person against attack. Same rules apply in self-defense: the defender may only use reasonable force, and may not use deadly force to repel a non-deadly attack.

Reasonable mistake: Courts are split n this effect holding that intervener steps into the shoes of the person sided, and thus bears the risk of a mistake. But the restatement gives a reasonable mistake defense to the intervener.

D is privilege to defend another person is the same reasonably standards as he would to protect himself.

If Dis under a duty to protect another or their chattel from harm then he is privilege to use reasonable force

Actor need only a reasonable belief that the person being aided would have the right to self defense. Even when the person aided has no defense his defender is not liable as along as he reasonably believed that the person aided could have used force to protect himself.

Defender assuming he is justified may use a much force as he could have used in self-defense if the injury were threaten to him

o Arrest and Detention (Authority of the Law)

Arrest with warrant: Where a police officer executes an arrest with an arrest warrant that appears to be correctly issued, he will not be liable even if it turns out that there was no probable cause of the procedures used to get the warrant were not proper.

Police are allowed to err more because they have the right of good faith

Private individual only has the right to detain for felonies or misdeameanors committed in you presence

Arrest without warrant: Officers are privileged to make an arrest

with a warrant. Also if there is probable cause to believe that a felony was committed

Private persons have no privilege to arrest for misdemeanor unless they are present when it happens

Private ppl under some circumstances are privileged to make a felony

Merchants must use a reasonable standard to detain a person on premises and they are given slight leeway to detain a person off premises

Felony or breach of peace in presence: A police officer may make a warrantless arrest for a felony or for a breach of the peace if the offense is being committed or seems about to be committed in his presence. A citizen may do the same.

Past felony: Once a felony has been committed then an officer may still make a warrantless arrest as long as he reasonably believes that the felony has been committed and that it is the right person. A citizen may make an arrest only if a felony has in fact been committed (though the citizen is protected is she makes a reasonable mistake and arrests the wrong person.)

Misdemeanor: Common law no warrantless arrest (either by an officer or by a citizen) may be made for a past misdemeanor not involving a breach of the peace.

Reasonable force: One making an arrest may not use more force that is reasonably necessary.

Prevention: Where the arrest to made to prevent a felony which threatens life or safety even deadly force may be used if there is no other way to prevent the crime. But where the felony does not involve such danger force may not be used.

Apprehension after crime: when a crime has already happened the police may use deadly force only if the suspect poses a significant threat of death or serious physical injury to others.

Justification A merchant is immune from suit for actions taken

while attempting to detain a suspected shoplifter beyond the merchant's premises.

One acting under the authority of the law is privileged in some circumstances to commit intentional torts but they must exercise discretion and proceed in good faith.

Most common types of acts are arrest and prevention of crime

One who makes an arrest under the mistaken belief that it is privileged may be liable for false imprisonment

Shopkeepers Privilege may have privilege to reasonably detain ppl who they reasonably believe to be in possession of goods.

Cases: Peters: Under Wisconsin stat a merchant is

immune from suit for actions taken while attempting to detain a suspected shoplifter beyond the merchants premises.

o Defense of Property A person may generally use reasonable force to

defend her property both land and chattel. Warning required first: Owner must first

make verbal demand that the intruder stop, unless it reasonably appears that violence or harm will occur immediately, or that the request will be useless.

The threat must be imminent Mistake: Effect of a reasonable mistake varies:

Mistake as to danger: if D mistake is about whether force is necessary, D is protected by a reasonable mistake. But if the owner is mistaken as to whether the person has the right to be there that is not privileged and thus they can be liable.

You an defend others but you must be right Privilege: But if the owner's mistake is

about whether the intruder has a right to be there, the owner's use of force will not be privileged.

Deadly force: Owner may use deadly force only where 1) non-deadly-force will not suffice; and 2) the owner reasonably believes that without deadly force, death or serious bodily harm will occur.

Burglary: Homeowner is generally allowed to use deadly force against a burglar, provided that she reasonably believes that nothing short of his force will safely keep the burglar out.

Mechanical Devices: An owner right to use a mechanical device to protect her property only if she would be privileged to use a similar degree of force if she were preset and acting herself.

Reasonable mistake: An owners right to use a dangerous mechanical device in a particular case will be measured by whether deadly force could have been used against that particular intruder.

a. Reasonable force may be used to protect property but not such force as will take human life or inflict great bodily harm.

b. A possessor is privilege to use reasonable force to expel another or a chattel from his land or to prevent another imminent intrusion upon or interference with his land or chattels or to prevent his dispossession even if the conduct would otherwise be a tort??

The possessor must request the intruder resist unless it cant be made before harm is done or it seems useless.

May use the amount of force equal to the threat but use only the minimal force required. Force likely to cause death or serious harm is not privilege unless it is equal.

The use of rigged spring guns, and attack dogs make the D liable if they inflict harm that he would not have inflict had he been there all in all not a good idea.

Mistake not a defense in this area Forcible Retaking of Chattel

D must be in fresh pursuit and first demand its return then and only then can reasonable force be used.

Possession of Land D who is entitled to the immediate

possession of land may peacefully retake their land without liability and is not subject to trespass.

Reasonable force may be used to protect property but not such force as will take human like or inflict serious bodily harm. Force is reasonable given the circumstances

One my use reasonable force to prevent the commission of the tort against her prop

Entry Upon Land to Remove Chattel On Wrongdoers Land: privilege to enter after a

reasonable time and in a reasonable manner On Land of Innocent Party: same as above

notice of presence to remove must be given A request to desist must preceded the use of force

unless the circumstances make it clear that the request would be futile/dangerous. When recapturing your chattel

This defense is limited to preventing the commission of a tort against the D prop.

Whenever an actor has a privilege to enter upon the land of another because of necessity, right to re-entry, right to enter upon another's land to recapture chattels, that privilege supersedes the privilege of the land possessor to defend her property.

Must use reasonable force You can recapture your property only from the

tortfeasor or 3rd person who knows or should know that the chattel was tortiously obtained but if they do not know then you loose that privilege to recapture

One may use reasonable force to defend property. You may not use force that will cause death or serious bodily harm. One may not use indirectly deadly force such as a trap or spring gun.

When another possess your land you can peacefully try to recover it. Force can be used only when in hot pursuit of the person who took it. 1st you must deman the return. The only can you recover from wrongdoer not 3rd innocent unknowing party

Reasonable force is used to recapture not deadly or serious bodily harm.

Entry Upon Land to remove Chattel On Wrongdoer's Land: Where chattel are

located on the land of the wrongdoer, the owner may enter and reclaim her chattel at a reasonable time and in peaceful manner when the landowner has been given notice of the presence of the chattel and refuses to return it. Chattel owner will be liable for any actual damage cause by entry.

Cases Reasonable force may be used to protect

property but not such force as will take human life or inflict great bodily harm.

o Discipline Parent: Privilege to apply reasonable force or impose

reasonable confinement upon his child as he reasonably believes necessary for control, training or education

The reasonableness depends upon whether D is the parent, the age, sex, physical, and mental condition of the child, the nature of the offense and necessity of compelling obedience

Loco Parentis: privileged of parents extends to persons having responsibility for custody, control, training or edu of a child except so far that the parent has restricted their authority to do so.

Must be administered in good faith and w/out malice but with purpose

A parent or teacher may use reasonable force in disciplining children, taking into account the age and sex f the child and the seriousness of the behavior.

Teachers must have a process before discipline and the bus driver can kick a kid off the bus who is being disruptive

Even where children are permitted to sue their parents the parents still maintain this privilege as long as they exercise reasonable force

However, teachers and others do not share the same privilege as parents/guardians

o Consent Express consent: If P expressly consents to an

intentional interference with his or her person or property. D will not be liable for that interference.

Persons privileged to enter without consent: Firemen, policeman, public officials

You can revoke consent at any time Power relationships there is no consent given the type

of relationship If one has an STD and doesn't warn partner nor

provides any protection then it is a battery Medical Care Providers are not liable if:

Patient is not able to give consent ( unconscious, intoxicated, mentally ill, incompetent)

Risk of bodily harm if treatment delayed A reasonable would consent Physician had no reason to believe patient

would refuse Implied consent: Existence of consent may also be

implied from Ps conduct, from custom, or from the circumstances.

Objective manifestation: It is the objective manifestation by P that counts - if it reasonably seemed to one in Ds position that P consented, consent exists regardless of P's subjective state of mind.

Lack of capacity: Consent will be invalidated if P is incapable of giving that consent because she is a child, intoxicated, unconscious, etc

Consent as a matter of law: Even if P is incapable of giving that consent, consent will be implied "as a matter of law" if these factors exist: 1) P is unable to give consent;2) immediate action is necessary to save Ps life or health; 3) there is no indication that P would not sent if able;4) a reasonable person would consent int he circumstances.

Exceeding scope: Even if P does consent to an invasion of her interests, D will not be privileged if he goes substantially beyond the scope of that consent.

Emergency: In the surgery case an emergency may justify extending the surgery beyond consented to

Consent to criminal acts: Where Ds act against P is a criminal act courts are split. Majority rule is that P consent is ineffective if the act consented to a crime.

Defense to almost any tort but applied most frequently to intentional torts.

Consent is valid whether it is verbally communicated or not thru actions

Ps words or conduct manifesting consent are sufficient to create a privilege to D to actin light of apparent consent even if Ps actual state of mind (unknown) was to the contrary.

Consent can be inferred thru social/cultural customs or from prior dealing with the other party/ existence of a relationship of some sorts

Consent can only be given if one has the capacity to do so.

Children can consent to things that are age appropriate.

Intoxication and Mental Incapacity will negate consent

Implied Consent: When an emergency actually or apparently threatens ones life of serious injury and there is no opportunity to btai consent it is implied

Once consent is given to D conduct then P can' t complain of the consequences no matter how unforeseen. D privilege is limited to conduct that is consented to.

Consent can be conditional or limited If P misunderstands what they consented D to then

that consent is still valid until P communicates that to D.

IMFORMED CONSENT ASK BLACK Duress negates any consent given. P can't consent to a crime A D is not liable for an otherwise tortious act if the P

consented to the D act. Consent may be given expressly; it may also be implied from custom, conduct or words or by law.

Express (actual) Consent: exists where the P has expressly shown willingness to submit to D conduct

Consent by mistake then the consent is still valid unless D cause the mistake or knew of the mistake and took advantage of it

Consent Induced by Fraud: If the expressly given consent has been induced by fraud the consent generally is not a defense. Fraud must go to an essential matter.

Consent obtained by duress may be held invalid.

Implied Consent: P consent may also be implied in a case.

Apparent Consent: Is that which a reasonable person would infer from P conduct. Somebody who voluntarily engages in a body contact sport impliedly consents to the normal contacts inherent in playing it.

o Inferred from Usage and Custom: Such consent may also be inferred as a matter of usage or custom. A person is presumed to consent to the ordinary contact of daily life ( minor bumping in a crowd)

Consent Implied by Law: This is when an action is necessary to save a person's life or some other important interest in person or property. Consent will implied in an emergencey situaion where the P s incapable of consenting and a reasonable person would conclude that some contact is necessary to prevent death or serious bodily harm ( surgery when the person is unconscious)

Capacity Required: Incompetent, drunken ppl, and young children are deemed incapable of consent. Consent of parent or guardian is necessary to constitute a defense.

You can consent to a crime

Children can only consent to things that are age appropriate

C. Privileges not based on P conduct Necessity

o Rule: D has the privilege to harm the property interest of P where this is necessary in order to prevent great harm to 3rd persons or to the D herself.

o Public necessity: If the interference with land or chattels of another is necessary to prevent a disaster to the community or to many people, the privilege is that of public necessity. Here no compensation has to be paid by the person doing the damage.

o Private necessity: If a person prevents injury to himself or his property or to the person or property of a 3rd person, this is protected by the privilege of private necessity if there is no less-damaging way of preventing the harm.

Actual damage: When it exists then it will be complete defense to a tort claim where P has suffered no actual substantial harm. but if the actual damage occurs P must pay for the damage she has caused.

Owner may not resist: Main purpose is to prevent the person whose property might be injured from defeating the exercise of the privilege.

o May be invoked when D in the act of defending himself or his prop from some threat or serious harm for which P is not responsible intentionally does some act reasonably deemed necessary toward that end which results in injury to Ps property and which would otherwise be a trespass or conversion

o a. A privilege to damage property to avert threatened disaster when necessary in exigent circumstances.

o b. Public necessity may require the taking of private property for public purposes; but our system requires compensation be made.

o 1. If the danger affect an entire community or so many persons that the public interest is involved the privilege is complete and D's tort liability is entirely excused

o c. Private Necessity: If the danger threatens only harm to Ps property then the privilege to commit the act or trespass or conversion subjects him only to compensatory damages ( damages only to replace the lost/damaged item)

o d. the scope of privilege under the necessity doctrine is D's reasonable belief that his act is necessary is sufficient. But his conduct must be reasonable to the extent of threatened harm in relation to the foreseeable damage to Ps property.

o e. Law recognizes a privilege to damage property to avert threatened disaster when necessary in exigent circumstances

o Public necessity may require the taking of private property for public purposes; but our system says compensation must be made

o where the act is for public good the defense is absoluteo Where the act is solely to benefit a limited number of ppl (the

actor ties up his boat to another dock in a storm) the defense is qualified (the actor must pay for any injury he causes). the defense is absolute is teh act is to benefit the owner of the land.

o Cases Suroccco: the law recognizes a privilege to damage

property tp avert threatened disaster when necessary in exigent circumstances.

Vincent: Public necessity may require the taking of private property for public purposes; but our system of jurisprudence requires that compensation be made.

NegligenceIV. Negligence

- Negligence occurs when D's conduct imposes an unreasonable risk upon another which results in injury to that other. The negligent tortfeasor mental state is irrelevant.

- 5 Components of a prima facie case ( has to prove all elements)1. Duty: legal duty requiring D to conduct himself according to a

certain standard so as to avoid unreasonable risk to others. 2. Breach of duty: A failure of D to conform his conduct to this

standard. Carelessness some what but more so. A manufacturer is required to “anticipate the

environment on which its product will be used, and it must design against the reasonably foreseeable risk attending the use in that setting.

it must design against the reasonably foreseeable risks attending the product’s use in that setting,” and thus bore liability in connection with the design and maintenance

The owner’s duty, as in other similar situations, to prevent against resulting injuries is a function of three variables: (1) The probability of the kind of incident in question; (2) the gravity of the resulting injury; and (3) the burden of adequate precautions.

is the burden greater the the cost or vice versa is a test the court may use to see if a duty was breached

EX: if a warning of possible danger is all that is required then that is free and thus there can be a breach of duty

foreseeability of injury that occurred Evidence that the D violated customary safety precautions of

the relevant community is usually sufficient to get the P to the jury

o Departure from the custom of the community or of others in like circumstances in a way that increases risk is evidence of that person neg but does not require a finding of neg

D who complied with all the safety requirements of a statute might still be neg if failed to follow a safety

Custom might prove that the D knew or should have known of the risk

3 common theories of liability

o lawyers have created several when P slips and falls to prove D neg. P needs to prove

D created and failed to take reasonable actions to reduce the amount of the hazard

D did not directly create the condition but discovered or should have discovered a condition created by others and failed to take reasonable steps to prevent injury from that condition

D mode or method of business operations made if foreseeable that others would create a dangerous condition and the D failed to take reasonable measures to discover and remove it

3. Causation: A showing that Ds failure to at with reasonable

care was the cause in fact of the injury to P. Typically means the but-for cause ( a cause without which the injury wouldn't have occurred). A reasonably close causal connection btwn the conduct (D neg act) and rhe resulting injury (harm suffered by P). Proximate cause

4. Proximate cause: A sufficiently close causal connection between D's act of negligence and the harm suffered by P that it's fair to hold D liable, as a matter of policy.

5. Actual damage suffered by P. - Warning: One of the ways the risks of conduct can be reduced is by

giving warnings of danger. The fact that D gave a warning of dangers to P in particular, or the general public will make D less likely to be found liable for neg.

i. Failure to warn itself can be neg when D knows about and the warning could have been easily given the mere failure to warn can itself constitute negligence. Doesn't immunize D from total liability if Ds activity is unreasonably dangerous

- The reasonable person1. Standard: Reasonableness of D conduct is viewed under an

objective standard. Would a reasonable person of ordinary prudence have acted the same in the circumstances.

o Which factors are relevant when applying the RPP standard? Physical disabilities: relevant, youth: reasonable standard for someone of that age, relevant; old age is not relevant unless it produces physical/mental disabilities; exceptional physical ability: must hold to the same level of reasonable care as a person of the same ability…if you are strong and could have avoided the problem by exercising your strength, then you shouldn’t have done it, relevant; if you're intoxicated then you still are expected to adhere to the same level of reasonable care—not a defense; insanity: can’t conform their conduct any other way, but they are still expected to act as anyone else, not relevant; sudden physical incapacity: would need to take a case-by-case approach, sometimes it is foreseeable (if you have had a heart attack before, it would be relevant); mental disability would not be a relevant factor

2. Physical and mental characteristics: Whether D behaved reasonably under the circumstances generally include the physical characteristics of himself.

i. If D is physically disabled then the standard is what a reasonable physically disabled person would have done

ii. Mental characteristics: If D is stupid this is not a defense

iii. Intoxication: No defense still held to reasonable sober person standard.

iv. Children: held liable to the level of conduct of a reasonable person of that age and experience not that of an adult unless they are engaging in adult activities.

3. Custom: may be used to help eliviate the level of liability.4. Emergencies: If D is confronted with an emergency and is

forced to act with little time for reflection, D must merely behave as a reasonable person would have when i the same situation not a person with plenty of time to think.

i. Parental Supervision: A parent has a duty to exercise reasonable care to supervise the conduct of his or her minor child to prevent the child from intentionally harming others or posing an unreasonable risk of harm to others.

5. A reasonable person has limited ability to anticipate the conduct of others.

- Automobile guets statutes1. non paying party no duty

a. Objective Test: Whether D's conduct was that of a hypothetical "reasonable prudent person" placed in the same similar circumstances.

b. The standard or care is reasonable care under the circumstances. D need only protect others against unreasonable risks of harm.

c. Elements: the existence of a duty on the part of the D to conform to a specific standard of conduct for the protection of the P against an unreasonable risk of injury; breach of that duty by the D;that the breach of duty by the D was the actual and proximate cause of the P injury and ; damage to the P person or property

c. D will be charged with what he knew or observed or should have known bc a reasonable person would have known

d. If D is physically definency then his conduct is measured against others with the same characteristic

e. If D is mentally incompetent, insane, intoxicated it does not matter his conduct is measured against others in that same circumstance

f. Minors are tested to what a child of the same, age, intelligence and experience under the circumstances would do. However a child is treated like an adult when they engage in adult activities.

g. If D is confronted with a sudden emergency that requires rapid decision that is taken into account in determining the reasonableness of the actions taken.

h. D's conduct during a period of sudden incapacitation or loss of consciousness resulting from physical illness is neg only if D ought to have foreseen such incapacity and was neg in failing to take reasonable precautions to prevent its occurrence

i. It may be neg to fail to warn or instruct another so that he can take proper precautions for his own safety. D must reduce the risk so far as reasonably possible.

j. any conduct may be neg under the circumstances. Neg can be failure to act, lack of competence, lack of preparation or misrepresentation. It may be neg to prevent protection of another if the activity is under D control so as to subject another to an unreasonable risk or harm.

k. A risk is seen as unreasonable when there is a probability that the harm will result in conjunction with the gravity or seriousness of the potential harm. Weigh each side out.

l. You weigh the magnitude of the risk against the burden of alternative conduct.

m. The burden is weighed against the cost 1. the cost can include feasibility of alternative safe conduct,

relative cost, social value of activity/goal. n. In determining whether conduct was neg the customary conduct of

the community, industry, profession or other group is relevant but not conclusive. Like for Dr's they follow customary conduct to the profession standard of care

o. Common carriers like pilots, amusements park devices, trains, taxicab drivers, are said to owe their passengers the highest degree of care consistent with the mode practical operation of business.

p. People responsible for dangerous instrumentality like explosives must exercise a high degree of care.

q. Reckless Conduct

1. conduct is in reckless disregard of the safety of another aka willful and wanton misconduct when D knows or has reason to know that it creates an unreasonable risk of harm and the risk is relatively high either in degree or in the probability that harm will occur.

2. Neg conduct merely creates an unreasonable risk; no awareness of that risk is required. For conduct to be reckless, D must be conscious or a reasonable person in D's situation would have been conscious that the conduct creates a relatively high risk of harm to another.

3. Reckless conduct is diff from intentional conduct bc intentional conduct is when D either intend to bring about the consequences or knows that they are substantially certain to occur. Reckless conduct lacks that certainty of result.

4. Conduct is intentional when D either intends to bring about the consequences or knows that they are substantially certain to occur. Reckless conduct lacks that certainty of result.A. Duty: The general prudent person standard

a.A duty by D to act or refrain from actingb. D has a duty to exercise reasonable care to avoid subjecting others

and their property to unreasonable risks of physical harm. - When a person engages in an activity he is under a legal duty to act

as an ordinary, prudent, reasonable person. It is assumed that an ordinary, prudent, reasonable person will take precautions against creating unreasonable risks of injury to other persons. The most important situations are 1) D generally has no duty to take affirmative action to help ; 2) D generally has no duty to avoid causing unintended mental suffering to P; and D has no duty to avoid causing pure economic loss

- Old age is not taken into account in setting of standard of care- Conduct of an actor with a physical disability is negligent only if it

does not conform to the reasonably careful person standard with the same disability

- Probability seeks to look at the likelihood of the harm-causing occurrence taking place. Probability must be considered in relation to the magnitude and burden, where there is a slight likelihood of harm it is doubtful that the D breached.

- Failure to Act: No general duty to act thus a person cant be liable on the grounds that she failed to act solely. UNLESS if D injures somebody negligently he has a duty to act and if D injures somebody innnocently by creating a dangerous condition without negligence he has a duty to take action to help

- So if D sees that P is in danger and fails to render assistance (even though D could do so easily and safely) D is not liable for refusing to assist.

- Exceptions to this rule:1. Special relationship: A duty may arise to give

assistance may arise out of a special relationship between D and P.- A common carrier with its passengers- Innkeeper with its guest- A Business or other possessor of land that holds

its premises open to the public with those who are lawfully on the premises.- an employer with its employees

- a school and its students- a custodian with those in its custody

2. D involved in injury: If the danger or injury to P is due to Ds own conduct or to an instrument under Ds control, D has the duty of assistance. This is true even if D acted without fault. A car driven by D strikes P a pedestrian. Common law duty to stop and give reasonable assistance to P.

3. D and victim as co-venturers: Where the victim and the D are engaged in some common pursuit so that they may be said to be co-ventures some courts have impose on the D a duty of warning and assistance. If 2 friends went on a jog together or on a camping trip, their joint pursuit might be enough to give rise to a duty on each to aid the other

4. Assumption of duty: Once D voluntarily begins to render assistance to P (even if D was under no legal obligation to do so ) D must proceed with reasonable care.

- Preventing assistance by others: if D began to render assistance then disuaiding others from helping P.

5. Duty to control others: If D has a duty to control the third person D can be found negligent for failing to exercise that control.

- Special relationship: Some courts have now held that any business open to the public must protect its patrons from wrongdoing by third parties.

D can be found liable for failing to protect P from third persons

- A duty of care is owed only to foreseeable P- D owes a duty of care to anyone who suffers injuries as a proximate

result of his breach of duty to someone- P2 can recover only if she can est that a reasonable person would

have foreseen a risk of injury to her circumstances that she was located in a foreseeable zone of danger

- Rescuers: D is liable if he negligently put himself or 3rd person in peril and P is injured in attempting to rescue.

- Firefighters rule: - Prenatal Injuries: Are actionable a duty of care is owed toward a

fetus. The fetus must have been viable at the time of injury.- Wrongful Life Action Not Recognized: The failure to diagnose a

congential defect of the fetus or to properly perform a contraceptive procedure does not permit the unwanted child to recover damages for wrongful life even if the child is born handicapped.

-Basic Standard "the reasonable person": D conduct is measured against a reasonable, ordinary prudent person.

- It is assumed that the D and P have the same physical characteristics but if D knows that P is mentally or physically handicapped then he has a duty to exercise the care ot a person with such knowledge.

- D must act as would a person with average mental ability. Low IQ or insanity is no defense.

- D is deemed to have the same knowledge as an average member of the community.

- Particular Standards of Conduct: Some ppl have a diff standard of conduct diff from the ordinary person

1. Professionals: A person who is a professional or has special skills is required to possess and exercise the knowledge and skill of a member of the profession or occupation. Thus a specialist might be liable where a general practitioner may not be. Medicine is a national standard of care

- Duty to Disclose Risks of Treatment: A doctor proposing a course of treatment or surgical procedure has a duty to provide the patient with enough information about its risks to enable the patient to make an informed consent to the treatment. If the undisclosed risk was serious enough that a reasonable person in the patient position would have withheld consent to the treatment the doctor has breached this duty.

- Children: A child is required to conform to the standard of care of a child like age, education, intelligence, and experience.

- AGES OF CHILDREN- Children who engaged in adult activity like driving a car are

held to an adult standard of care.- Common carriers and Innkeepers are required to exercise a high

degree of care toward their passengers and guests. In some cases duty owned depend on where the event occured

- The duty owed by the driver of an automobile to a rider is one of ordinary care must refrain from gross, wanton or willfull misconduct.

- DUTY TO BAILER AND BAILEE?c. Relationship btwn P and D

1. Typically D is not subject to liability to P unless D breached a duty owed to P and not to someone else. Important factors include a pre-existing relationship btwn P and D, foreseeability of harm, the nexus btwn D and P's injury and reliance by P upon D to protect him.

- In the event of an emergency there is little time for reflection thus D must act as a reasonable person would under the same emergency. It cant be an emergency under the D making.

- Standard of Care Owed by Owners- Duty to Those Off the Premises

- Natural Conditions: General rule is that a landowner owes no duty to protect one outside the premises from natural conditions on the land. EX: One is not liable for bug that line in trees on ones land but that visit the neighbors from time to time

- Artificial Conditions: There is also no duty owing for artificial conditions Exception (1) a landowner is liable for damage caused by unreasonably dangerous artificial conditions or structures abutting adjacent land. EX: whole on would not be liable for natural collections of ice on the sidewalk but might be liable for negligently permitting water to drain off his roof and form ice on the sidewalk.

- Duty to Protect Passersby: Duty to take due precautions to protect persons passing by from dangerous conditions

- Conduct of Persons on property: An owner of land has a duty to exercise reasonable care with respect to his own activites on the land and to control the conduct of others on his property so as to avoid unreasonable risk of harm to others outside the property

Duty to licensee, tresspassors...etc invitees d. Nature and Scope of Riske. Cases

1. Stewart: Under the reasonableness standard Cases:

o Stewart: Under the reasonable care standard the level of care must be proportionate to the danger involved in the act.

o Bjorndal: o Creasy: a person with mental disabilities is generally held to

the same standard of care as that of a reasonable person under the same circumstances w/out regard to the alleged tortfeasor's capacity to control or understand the consequences of his actions.

o Robinson: A child will be held to an adult standard of care when he engages in an inherently dangerous activity, such as driving a car.

o Chaffin: It is not negligent as a matter of law to continue driving while blinded due to oncoming headlights.

o O'Guin: For a P to recover under violation of a statute under neg per se the P must be a member of the class of persons the statute seeks to protect and the plaintiff harm must be the type of harm that statue was designed to prevent.

o Impson: Unless a legitimate excuse for noncompliance is offered, violation of a statute causing injury is neg epr se.

B. Breach of Duty What is the standard of care required (reasonable or ordinary?

Professional? higher standard due to dangerous instrumentality? lower due to emergency? Did D breach that standard? Res Ipsa locquitur? Custom?

When D conduct falls short of that level required by the applicable standard of care owed to the P she has breached her duty.

o It must be shown what in fact happened (that there was a duty)

o Must be shown from the fact that the D acted unreasonably. Proof of what happened may be est by either direct or circumstantial evidence.

Custom or usage may be introduced to et the standard of care D would have violated a stat RES IPSA LOQUITOR a. Assessing Reasonable Care by Looking at Foreseeable Risks and

Costs Looking at Responsibility When More Than One Person Is Neg Cases:

o Pipher: When it is foreseeable that the actions of a passenger may interfere with a drivers ability to operate the vehicle safely, a drivers failure to prevent such conduct may constitute a breach of the driver's duty to other passengers and the public.

o Indianan Consolidated Insurances: One who is confronted with an emergency not of his making is not negligent if he acts accordingly to his best judgment.

o Stinnett: Evidence of negligence must existo Bernier: The maker or distributor of a product must

anticipate the environment in which the product will be used.o Carroll Towing: there is a duty of care to protect others from

harm when the burden of taking adequate precautions is less than the product of the probability of the resulting harm and the magnitude of the harm.

o Santiago: reasonable interferences?o Upchurch: The resolution of disputed facts is duty that

devolves upon the finder of fact(jury)o Thoma: to recover for injuries incurred in a slip-and-fall

accident, the P must show that the owner of the premises either created a dangerous condition or had actual or constructive knowledge of a dangerous condition.

o T.J.Hooper: Common standard of care in a given industry or relevant community it is nevertheless not conclusive but rather must meet the test of reasonable prudence.

o Byrne: Where an accident could not have happened in the absence of a D neg a P doesnt have to prove the D neg.

- Res Ipsa Loquitor Means simply the thing speaks for itself. This allows P to point to

the fact of the accident and to create an inference that even without a precise showing of how D behaved. D was probably negligence.

4 requirementso No direct evidence of Ds conduct. P has no direct

evidence of how D behaved in connection to the event.

o Seldom occurring without negligence: P must demonstrate that the harm which occurred does not normally occur except through the negligence of someone. P only has to prove that most of the time negligence is the cause of such occurrences.

o Negligence most likely by D (exclusive control): Negligence was probably that of the D. Or that negligence is more likely then not to be D than by someone else.

Effect of Res Ipsa Loquitor: Permits an inference that D was negligent even though there is no evidence of negligence.

Typical Context: Airplane accidents (airplanes don't usually fly into an obstruction in good weather then a dead passenger will be deemed to have established negligence merely by showing that the plane crashed into an obstruction in good weather.

o Car accidents this is also applicable but not in multiple vehicle accident because other ppl cant be sufficiently eliminated by the evidence. This is easier to show when there is only one care involved in the accident.

If P makes a prima facie showing that his injury was caused by an instrumentality or condition which was under D's exclusive management or control at relevant times and in the ordinary course of events, P's harm would not have occurred unless D was then and there neg then the jury instructed on res ipsa loquitor and may infer D was neg.

P need not show that Ds negligence was the only possible explanation only that the inference that it was D's negligence outweighs the sum of the other possible causes

In many cases the P will have circumstantial evidence that a jury could reasonably infer that the D was neg.

This requires that the P prove that the accident was more probably than not

Use this when the P can not for certain show that D was a direct cause

Used when circumstances of the accident itself because they bespeak negligence even without a more a more specific showing of the chain of events

In res ipsa cases based on the evidence about the accident itself allows the jury to infer that it must have resulted from some negligent act by the D

P use this when there no showing of exactly how the accident happened but the fact that it happened at all suggests that someone was probably negligent

Allows the jury to make some inference about the negligence that most of us would make from our common experience

P can make a case by showing:o he was injured by an accident that would not ordinarily

happen without negligenceo that the negligence is more likely that not attributable

to the D rather than to the P or a 3rd partyo the thing must be under the control of the D or show

that no one else could have done the negligenceo even if the D did not have exclusive control of the

source of harm then as long as the P can demonstrate that the negligence was likely that of the D rather than other parties

o P must show not simply that the accident happened but that it would not have happened without D negligence

It tells the jury that they may conclude that the D was negligent, if they find that it was the type of accident that does not ordinarily happen without negligence, and that the thing which caused it was under the D control at the time of the negligence

Cases:o Warren: Res Ipsa doesn't have to apply where the neg of D is

not only reasonable explanation for an occurrence.C. Harm and Causation in Fact ( Actual Harm and Proximate Cause)

a. Actual Harm- Negligence is a cause in fact of the harm of the harm of

another if it was a substantial factor in bringing about that harm.- 3 rd element means a legally recognized harm

b. Cause in Fact: Before the D conduct can be considered a proximate cause of P injury, it must first be a cause in fact of the injury

- The D has acted negligently; and the negligence created an identifiable risk; and the P was one of the persons subjected to that risk; and the P actually suffered harm of the kind risked by the D

- Substantial Factor Test: requires that the D materially contributed to the P injury. Helpful when there are multiple D

- P must show that Ds conduct was the cause in fact of Ps injuryi. But-for test: Majority of the time P shows "cause in

fact" is to show that D's conduct was a "but for" cause of P's injuries - had D not acted negligently, P injuries would not have resulted. Can be 2 persons causing separate or divisible injuries, or two persons causing a single indivisible injury

-But for test is used to determine whether the D act was a cause in fact of the P harm. The D conduct is the cause of the event if the event would not have occurred but for the conduct; conversely the D conduct is not a cause of the event if the event would have occurred without it

- Dominant test for causation- Joint tortfeasors: There can be multiple "but

for" causes of an event. D1 cannot defend on the grounds that D2 was a "but for" cause of P's injuries - as long as D1 was also a "but for" cause, D1 is viewed as a "cause in fact"

- Concurrent Causes: Sometimes D conduct can meet the cause in fact requirement even though it is not a "but for" cause. This happens where two events concur to cause harm, and either one would have been sufficiently to cause substantially the same harm without the other. Each of these concurring events is deemed a cause in fact of the injury, since it would have been sufficient to bring about injury. EX: Sparks from D's locomotive start a forest fire; the fire merges with some other unknown fire, and the combined fires burn P's property. Either fire alone would have been sufficient to burn Ps property. Therefore D's fire is a cause in fact of Ps damage, even though it is not a "but for" cause.

Multiples fault: If P can show that each of two (or more) D was at fault, but only one could have caused the injury, the burden shifts to each D to show that the other caused the harm. joint and severally liable

o Joint and several liability generally: D may argue that they are not join tortfeasors acting in concert but that they are jointly and severally liable. As J&S liable, since it is not clear whos bullet struck P they would both be exonerate unless P could show who was directly responsible. If more then one person is a proximate cause of Ps harm and the harm is indivisible each D is liable for the entire harm. Liability then is joint and severally liable. One when capable of apportionment?? EX: D negligently scratches causing her to lose her arm. Then P can recover damages from either D2 or D1 but cant collect twice.

o The "market share" theory: In product liability cases courts often apply the market share theory. If P cannot prove which of 3 or more persons caused his injury, but can show that all produced a defective product, the court will require each of the Ds to pay that percentage of Ps injuries which that Ds sales bore to the total market sales of that type of product at the time of injury. Depending upon how socially valuable the product is (like a vaccine) the less likely the court will apply this.

o No joint-and-several liability: Courts adopting the "market share" approach often reject joint and several liability- they allow P to collect from any D only that Ds proportionate share of the harm caused.

o Indivisible versus divisible harms: Several liability is in force where Ps harm is indivisible not capable of being apportioned between or among the D each will be responsible only for the directly attributable harm. If they act in concert then apportionment does not take place. Successive injuries often courts are able to apportion harm if the harms occurred in successive incidents separated by substantial periods of time.

Indemnity: Sometimes the court will not merely order two joint and severally liable D to split the cost but will instead completely shift the responsibility from one D to the other.

Increased risk, not yet followed by actual damage: If the increased risk is one that the P is predicting will happen later but the damage has not yet occurred the courts will likely deny this. Unless he can show that it is more likely than not to occur eventually. but some courts now allow recovery for such damage, discounted by the likelihood that the damage will occur. Indeterminate P: Sometimes it's clear that D has behaved negligently and injured some people, but not clear exactly which people have been injured. Most often in toxic tort and other mass-tort. Class action suit where ppl show that they were exposed to a toxic substance made or released by D and that they suffer a particular medical problem, can recover something even if they cant show that it's more probable than not that their particular injuries were cause by D's toxic substance

1. But-For Test: An act or omission to act is the cause in fact of an injury when the injury would not have occurred but for the act. When P shows cause in fact is to show that Ds conduct was a but for cause of Ps injuries. EX: Failure to provide a fire escape in a cause of death of one who is thereby unable to flee a fire, but it is not a cause of death of one who suffocated in bed.

- But for test applies where several acts combine to cause the injury but non of the acts standing alone would have been sufficient. But for any of the acts the injury would not have occurred.

- Under some circumstances the but for test is inadequate to determine causation. Court must rely upon other tests.

-Joint Causes (substantial factor test): Several causes concur to bring about an injury - and any one alone would have been sufficient to cause the injury- it is sufficient if D conduct was a substantial factor in causing the injury. EX: 2 fires meet and burn a farm. Either fire alone would have done the damage without the other. Under the but for test neither.

2. Problems w/ and Alternatives to Bur-for Tests3. Proof: What was Caused?

Did the injury or damage result from the alleged negligence? Circumstantial evidence? Burden shifting?

Caseso Right: Neg claim require prove of actual damageso Hale: A D action is a cause in fact of P harm i the harm would

not have occurred but for the D action.o Salinetro: A party will be liable 4 neg conduct only if such

conduct causes the injury in question.o Landers: Where concurrent independent torts produce an

indivisible injury, the tortfeasor will be jointly and severally liable

o Anderson: If one negligently sets a fire which combines with another fire of no responsible origin, he is liable if his fire would have caused the damage, independent of the other fire or if his fire materially cause the damage.

o Summers: When two or more persons by their acts are possibly the sole cause of harm, and the P has introduced evidence that one or two persons is culpable(responsible), the D has the burden of proving that the other person was the sole cause of harm.

o Lord : A P may recover for loss of opportunity injury in medical malpractice cases when the D alleged neg aggravates the P preexisting injury such that it deprives the P of substantially better outcome

D. Scope of Risk or Proximate Cause Element Scope of Risk Assessing the Scope of Risk i. Intro: Scope of Risk and Natural and Continuous Sequence ii. Intentional or Criminal Intervening Acts iii. Neg Intervening Acts Proximate cause cuts off liability even when there is cause in fact Lapse of time is one major variable in proximate cause Has to be a foreseeable risk/ harm D is liable for all harmful results that are the normal incidents of

and within the increased risk caused by his acts. If one of the reasons that make Ds act negligent is a greater risk of a particular harmful result occurring and that harmful result does occur, D is generally liable. Basic test foreseeability.

General: Even after P has shown that D was the "cause in fact" o f Ps injuries, P must still show that D was the proximate cause of those injuries. The proximate case requirement is a policy determination that a D even one who has behaved negligently, should not automatically be liable for all the consequences no matter how improbable or far-reaching of his act. D will not be liable for the consequences that are very unforeseeable.

o Multiple Proximate Causes: Just as an occurrence can have many "causes in fact", so it may well have more than one proximate cause. EX: Each of two drivers drives negligently, and P is injured. Each driver is probably a proximate cause of the accident.

Proximate Cause - Foreseeabilityo General rule: D is liable only for those consequences of

his negligence which were reasonably foreseeable at the time she acted.

Restatement: A D is not liable for harm different from the harms whose risk made the D conduct tortious.

o Unforeseeable P: Rule that D is liable only for foreseeable consequences is also usually applied to the unforeseeable P problem. That is if D conduct is negligent as to X in the sense that it imposes an unreasonable risk of harm upon X) P will not be able to recover if through some fluke he is injured.

o Extensive consequences from physical injuries: Key exception is D is liable only for foreseeable consequences is once P suffers any foreseeable impact of injury, even if relatively minor, D is liable for any additional unforeseen physical consequences.

Egg shell test: You take the P as they are. Takes his plaintiff as he finds him. So even if the P has a thin skull and a normal person would not have suffered an injury even if you dont know of their condition then you are still liable

o General class of harm but not same manner: Exception s that as long as the harm suffered by P is of the same general sort that made D's conduct negligent, it is irrelevant that the harm occurred is an unusual manner. NEED GOOD EXAMPLE OF THIS

o P part of foreseeable class: Exception the fact that injury to the particular P was not especially foreseeable is irrelevant as long as P is a member of a class as to which there was a general foreseeability of harm.

- Proximate Cause - Intervening Cause Elements to consider for proximity

o Breach timeactionsdistanceinjury Definition: An intervening cause is a force which takes

effect after D's negligence and which contributes to that negligence in producing Ps injury.

o The mere fact that an intervening cause ws unforseen will not relieve D but if the intervening act is something unexpected or extraordinary as that he couldnt or should have anticipated it he will not be liable. Not bound to anticipate criminal acts.

o Superseding cause: Intervening causes are sufficient to prevent D's negligence from being held to be the proximate cause of the injury. Intervening causes that are sufficient to prevent D from being negligent are called superseding causes since they supersede or cancel D's liability.

Foreseeability rule: Courts use a foreseeability rule to determine whether a particular intervening cause is superseding.

o Test: if D should have foreseen the possibility that the intervening cause or one like it might occur or if the kind of harm suffered by P was foreseeable (even if the intervening cause was not itself (foreseeable) D's conduct will nonetheless be the proximate case. But if neither the intervening cause nor the kind of harm was foreseeable the intervening cause will be a superseding one relieving D of liability.

Foreseeable intervening causes: The risk of a particular kind of intervening cause is the very risk or one of the risks which made D's conduct negligent in the 1st place. NEED EXAMPLE AND MORE UNDERSTANDING HERE

o Foreseeable negligence: The negligence of third persons may similarly be an intervening force that is sufficiently foreseeable that it will not relieve D of liability

o Criminally or intentionally tortious conduct: not superseding but can be foreseeable. More likely you be superseding if it is criminal or intentionally tortious than where it is merely negligent.

Response to D actions: Where the 3rd party's intervention is a normal response to the D act that response will generally not be considered superseding. EX: Escape as a response to a danger created by D so the escape will not be a superseding cause as long as it is not irrational or bizarre.

o Rescue: D may be liable to the person being rescued or to the rescuer bc they are viewed as foreseeable intervening forces.

o Aggravation of injury by medical treatment: If D negligently injured P who then undergoes medical treatment, D will be liable for anything that happens to P as the result of negligence in the medical treatment infection. not superceding?? unless gross and unusual then not superseding.

Unforeseeable intervention, foreseeable result: If an intervention is neither foreseeable nor normal but leads to some type of harm then usually not superseding.

Unforeseeable intervention, unforeseeable results: If the intervention was not foreseeable or normal and it produced results which are not of the same general nature as those that made Ds conduct negligent the intervention will probably be superseding.

Extra ordinary acts of nature are likely to be superseding

A third persons failure to discover and prevent a danger will almost never be superseding. But if P does discover and willfully and negligently fails to warn P D may escape liability if D took all the reasonable steps to remedy the danger.

Independent v. dependent intervention??? Cases

o Medcalf: Proximate cause in an actual cause that is substantial factor in the resulting harm.

o Palsgraf: Liability for damages based on negligence exists only where the injuries to the P were reasonably foreseeable from the act or omission committed.

o Hughers : When actual cause of an injury results from an unforeseeable action fo known risk, the unforeseeability of the manner in which the risk occurs does not excuse negligence.

o Delaney: A P suicide attempt may be an intervening cause, relieving the D of liability, where the risk of intervening act occurring i the very same risk which rendered the D neg.

o Derdiarian : An intervening act will not serve as a superseding cause, relieving the D of liability, where the risk of the intervening act occurred is the very same risk which rendered the D negligent.

o Ventricelli: Recovery for neg may be obtained only where the injuries incurred were reasonably foreseeable from the acts or omissions constituting the breach of duty

o Marshall: D remains liable for the full consequences of his negligent act when the intervening force is one which a reasonable man would have foreseen as likely to occur under circumstances, and the issue of foreseeability remains a question of fact for that triar.

E. Neg Per Se

o Just takes away duty and breach from the jury for neg per se

o Just bc there is s statue doesn’t mean neg per se applies- If n individual has violated an applicable statue do you have to show anything else?

In addition to showing the statue was violated you must showo Causation o (actual and proximate and harmo Neg per se only does is supplants on to elements of a

neg claim duty and breach. Their duty is what the statute says it is

What are the Elements of neg per se:o statute or regulation clearly defines standard of conducto statue must have been intended to prevent the type of

harm caused

o p must be a member of the class of persons it was designed to protect

o violation must be proximate cause

a. Statutory neg 1. Applied when a safety statute has sufficiently close application to the

facts of the case at hand an unexcused violation of the statute by D is negligence per se and thus conclusively establishes that D was negligent. c. The statue est the duty and breach because the statute explains and it is not a required element to prove here d. P must show that the statute was intended to guard against the kind of injury in question and P must be a member of the class of persons whom statute was designed to protect.

- Injured person must be in a class of persons that the statute is designed to protect and the type of harm as well

V. Defenses for NegligenceA. Contributory Negligence a. Contributory Neg Rule: The doctrine of contributory negligence applies. Doctrine provides that a P who is negligent and whose negligence contributes proximately to his injuries is totally barred from recovery.

- P is held to the same standard of care as the D both held to be reasonable person in like circumstances.

- the burden of this defense is on the D- not a defense to an intentional tort but is a defense for neg per se- In some places this is an all or nothing defense this it true even if D

negligence was extreme so long as it was not reckless or wanton act- Contributory negligence only applies where P's negligence

contributes proximately to his injured. - Knowing contributory negligence/ implied assumption of the risk is

when (1) one sees the risk (2) unreasonably, voluntarily takes on the risk- Unknowing contributory negligence: P doesnt see the precise risk, P is

just careless- Any contributory neg completely bars recovery.- Contibutory negligence defense is not a good defense for reckless

tortious conduct- Claims where this defense is not usable: Intentional torts this defense

cant be used. - Willfull and wanton: Similarly if P conduct is found to have

been willful and wanton and reckless the contributory negligence defense will not be allowed. (But if D negligence is merely gross then it will be allowed. The idea is that the defense does not apply where D disregards a conscious risk. - Neg per se: can but use unless the P fits the class of persons clause. b. Adopting and Applying Comparative Fault Rulesare you a comparative fault JD or contrib neg Jd ass of the risk but it is comparative fault that is more damages related

- A comparative fault system rejects the all-or-nothing approach of contributory negligence. It instead attempts to divide liability btwn P and D in proportion to their relative degrees of fault. P is not barred from recovery by his contributory negligence, but hit recovery is reduced by a proportion equal to the ration between his own negligence and the total negligence contributing to the accident. Adopted by 46 states

- Pure versus 50% systems: the rest that haven't adopted the other states completely bar P if his negligence is depending on the state as great as Ds greater than D's.

- Pure Comparative Fault: No amount of negligence by hte P can bar recovery not even 99%

- Modified Comparative Fault: P must be less than a certain percentage at fault to recover from D...usually 50%

- Multiple D this is harder to apply. but they will do it via percentages. Even if D's conduct is not merely negligent, but willfull and wanton or reckless most states nonetheless will reduce Ps damages.

- Intentional tort most courts will not apply comparative negligence. c. All-or-Nothing Judgments After Comparative Fault d. Allocating Full Responsibility to the D in the Interests of Policy or Justice e. Exceptions to the Contributory Neg

1. Rescue Doctrine: One who sees a person in imminent danger caused by the negligence of another cannot be charged with contributory negligence unless the rescuer acted recklessly but it is assessed case by case given it is an emergency situation

o To achieve rescuer status one must demonstrate: the D was negligent to the person rescued and

such negligence caused he peril or appearance of peril to the person rescued

the peril or appearance of peril was imminent a reasonably prudent person would have

concluded such peril or appearance of peril existed

2. Remaining in Danger: It may be contributorily negligent to fail to remove oneself from danger (remaining in the car with a drunk driver)

2. Last Clear Chance or Discovered Peril: This doctrine of last clear chance acts as a limit on the contributory negligence defense. If just before the accident D had an opportunity to prevent the harm, and P did not have such an opportuinty the existence of this opportunity, the existence of this opportunity (last clear chance) wipes out the effect of Ps contributory negligence.

3. D Reckless or Intentional Misconduct4. P Illegal Activity Cases

o Butterfield : A P will not be able to recover where his lack of due care contributed to occurrence of the accident.

o Wassell: A jury finding of comparative negligence and not be disturbed unless clearly contrary to legal standards.

o Bexiga: The defense of contributory neg is unavailable where considerations of policy and justice dictate.

o Christensen: As a mater public policy, school children do not have a duty to protect themselves from sexual abuse by their teachers

o LeRoy Fibre: The uses by one owner of his property may not be limited by the wrongful use of another owner

C. Assumption of the Risk another Defense on Negligence - Def: P assumes the risk if they have voluntarily consented to take the chance harm will occur. thus at common law barred from recover.a. Contractual or express Assumption of Risk

- Express Assumption: If P explicitly agrees with D in advance of any harm that P will not hold D liable for certain harm, P is said to have expressly assumed the risk of that harm.

- Exceptions: when D either intentionally causes the harm or brings it about y acting in reckless or grossly negligent way. Also, the bargaining power of the party protected by the clause is grossly greater than that of the other party typically a status the courts finds to exist only when the good or service being offered is essential. Finally where the court concludes that there is some overriding public interest which demands that the court refuse to enforce the exculpatory clause.

Caseso Moore: A court errs in failing to consider the scope of release

before granting summary judgment in a negligence actiono Avila: Applied in the sporting context, assumption of the risk

bars liability for injuries arising from risks that are inherent to the sport involved.

- Implied Assumption of the Risk: even if never an agreement can be made by conduct or voluntary consenting, with knowledge of the risk . Can not be given under duress bc P is left without a choice but to encouter D and the known dangers

- often P assumption of the risk normally constitutes contributory negligence. this is important when Ds conduct was reckless ( contrib neg no defense for reckless conduct but ass of the risk is)

D. Defenses Not on Merits Statutes of Limitationo If P does not discover the injury until long after Ds negligent

act occurred then the statue of limitation can start when the act happens and other times it can start when P discovered the injury.

Caseso Crumpton: The statue of limitations commences from the

date of injury and is not tolled during negotiating for settlement absent an express or implied tolling agreement.

o Schiele: o Hoery: Both the continuing migration and ongoing presence

of toxic chemicals into property constitute a continuing trespass that permits a tort claim to keep accuring

V. Limiting or Expanding the Duty of Care According to Context/Relationship

A. Carriers, Host-Drivers and Landowners Invitee: person is there for the benefit of the landowner and

thus your duty here is reasonable care. Public invitee for general space for anyone

Liscenee: often are social guests, consent to enter, but you have consent to enter but no real benefit for the land owner. Everybody who isnt in either group. There for ur permission

o Duty of care owned to them is for the land to not act reckless or wantonly or willful more then just general neg avoid basically intentionally or willful harm

o Not keeping ur land in good repair isn’t enough Trespasser same duty as liscenee Benefit is someone who is paying you to o you a service or

buy ur good. Some sort of benefit for u diff from public invitee still have a duty of reasonable care

For a private landowner =must be a benefit hardest part is to figure out which category ppl fit in? what does the ct say about the status here?

o When he first enters he is an invitee initially bc he bought a tik is there to confer a benefit

o Once he entered upon the track whether willful or by other means he became something else but that doesn’t change the duty

P argue he is not a trespasser here bc he didn’t intentionally enter the area but the ct says trespass is not the same as trespasser under intentional torts

o Doesn’t matter how u got there bc u aren’t authorized to be there

Exception is when a land owner discovers a trepassee then the duty changes back to reasonable care

o This speaks to the foreseeability bc u should have to maintain something for an area where u don’t expect ppl to be there

o Only trespassee who are in apposition of peral / Ie some risk if you don’t action

- raise the duty for common carriers but assume they are under a normal duty of care- no lower duty when u give someone a free ride

a. Carriers and Host-Drivers- Cases

o Once an invitee goes outside the area of invitation, his status becomes one of a licensee or trespasser, depending on the circumstances

o Under the attractive nuisance doctrine a landowner is liable for injuries to an unknowing child trespasser cause by an artificial condition if (1) the landowner knows or has reason to know that children are likely to trespass on his land and that the condition is reasonably likely to cause injury or death to child trespassers (2) the child trespasser does not discover or appreciate the danger of the condition, (3) the landowners burden of safeguarding the condition is not outweighed by the degree of risk to the child, (4) the landowner fails to reasonably eliminate the danger

o Rule of Law:  A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon land if:(a) the possessor knows or has reason to know that children are likely to trespass on that place;(b) the possessor knows or has reason to know the condition will involve unreasonable risk of death or serious bodily harm to such children;(c) because of their youth the children do not discover the condition or realize the risk involved(d)  the risk of harm to the children outweighs the possessor’s utility of maintaining the condition and his burden of eliminating it;(e) the possessor fails to exercise reasonable care to eliminate the danger or to otherwise protect the children.”

o P theory of liability bc they knew neighbors had children bc they could see foresee if but did nothing to avoid it

o The child is a trespasser even if neg don’t owe them a duty of reasonable care just to not engage in reckless conduct which they were doing

o the statutory abolition of assumption of the risk defense did not implicitly abolish the defense that a landowner has no duty to warn of an open and obvious danger.

o the firefighters rule bars tort recovery by a firefighter or police officer for on-the-job injuries sustained during the discharge of his or her duties. firefighters rule

o they are an invitee but you treat them as liscenee same with police officer unless they are hurt by conditions or things that are on the property that are unrelated to their reason for being there

o like a dog biting a fire fighter exampleo

o a landlord is under a duty to exercise ordinary care in maintenance of the premises

o a landlord owes a duty of reasonable care to all who enter upon his land

b. Landowners Duties to Trespassers, Licensees..etc (Owners and Occupiers of Land)

- general rule is that all entrants are owe a duty of reasonable care except in exceptional cases, then provides that land possessors owe flagrant trespassers only a duty not to intentionally willfully or wantonly injure them

- Make sure that D is the owner or operator of the land or one who is on privity with one.

- Did the injury occur on or off the land?- Is the P an undiscovered trespasser? If so there is no duty - no

standard of care owed to the P. If P is anyone else then ask what the injury caused by an activity or a dangerous condition

- Activity: If you were doing something on the property, treat as ordinary neg. Do not worry about who the P is.

- Dangerous condition: If the injury occurs due to a dangerous condition, must consider who P is.

- Who the P is determines what the duty of care owned is:- Outside the Premises

Effect Outsides: There are some rules that lower a landowners standard of care. However, these rules do not apply to conduct by the landowner that has effects outside of his property. Therefore, the general "reasonable care" standard usually applies to such effects.

o An owner owes no duty to warn or protect others from a defective or dangerous condition on neighboring premises, unless the owner had created or contributed to it

oNatural Hazards: if a hazardous condition exists naturally on the land, the property owner generally has no duty to remove it or guard against it, even if it poses an unreasonable danger to persons outside the property. Courts are less likely to apply this in urban areas but still can be found liable may just need a stronger case

oArtificial Hazards: Where the hazardous condition is artificially created the owner has a general duty to prevent an unreasonable risk of harm to persons outside the premises.

TrespassersoGeneral rule: No duty to a trespasser to make her land

safe, to warn of dangers on it, to avoid carrying on dangerous activities on it, to protect the trespasser in any other way. No duty before discovering trespassers presence.

oLandowner is libale for dangerous conditions from an artificial source involving risk of serious injury that the owner knows of.

oExceptions: 3 major to the general rule

Constant trespass on a limited area: If the owner has reason to know that a limited portion of her land is frequently used by various trespassers, she must use reasonable care to make the premises safe or at least warn of dangers.

Discovered trespassers: Once the owner has knowledge that a particular person is trespassing the owner is then under a duty to exercise reasonable care for the trespasser's safety.

Children: Owners owes a duty to trespassing children only if all the requirements are met: Attractive nuisance rule: Owner knows that the area is one where children are likely

to trespass; The owner has reason to know that the condition poses an

unreasonable risk of serious injury or death to trespassing children;

the injured child either does not discover the condition or does not realize the danger, due to his youth;

the benefit to the owner of maintaining the condition in its dangerous form is slight weighted against the risk to the children and;

the owner fails to use reasonable care to eliminate the danger.

GET THAT REDICIDCULOUS RULE ABOUT THIS FROM BOOK CASES??

LicenseesoDefinition of licensees: A licensee is a person who has the

owner's consent to be on the property, but who does not have a business purpose for being there, or anything else entitling him to be on the land apart from the owner's consent. Social gues

oLandowner is liable for dangerous conditions that he knows ofoDuty to licensees: the owner does not owe a licensee any

duty to inspect for unknown dangers. On the other had, if the owner knows of a dangerous condition, she must warn the licensee of that danger.

Inviteeso Duty to invitee: reasonable inspection to find hidden

dangers. Also, the owner must use reasonable care to take affirmative action to remedy a dangerous condition.

o On the and for the purposes of the landownero Landowner will be liable for dangerous conditions that the

owner know about ot should have known about. Landowner must conduct a reasonable inspection of the premises to learn about defects/dangers

o Definition of "invitee: The class of invitess today includes: (1) persons who are invited by O onto the land to conduct business with O; and (2) those who are invited as members of the public for purposes for which the land is held open to the public.

Scope of invitation: If the visitor's use of the premises goes beyond the business purpose or beyond the part of the premises held open to the public, that person will change from invitee to licensee.

Owner owes an invitee the duty of reasonable care: o Owner has a duty to inspect her premises from hidden

dangers. O must use reasonable care in doing this inspecting. This is true even as to dangers that existed before O moved onto the premises.

o Warning: the giving of a warning will often but not always suffice. If O should realize that a warning will not remove the danger, then the condition must actually be remedied.

oSocial guest: are the main class of persons here but remember they can be come trespassers and each group can change given the facts. EX: if they go into an area uninvited they become trespassers.

o Control over third persons: Reasonable care by O may require that the exercise control over third persons on her premises.

- Some courts have rejected the categories of trespasser, invitees, licensee's, and use a general standard of reasonable person standard of liability. All non-trespassing social guests are entitled to reasonable care under the circumstances. And theses are often unwilling to abolish the category of trespassers and these courts also follow that an owner owes a trespasser no duty of care and only the duty to refrain fro the maliciously injuring the intruder.

Caseso Gladon: If an invitee trespasses into areas beyond the scope

of the invitation, then in those area the landowner owes no duty except to refrain from wanton or reckless conduct that would likely injure the trespassing invitee.

o Bennett: The attractive nuisance doctrine applies where an artificial condition on a prop owner's land creates an unreasonable risk of harm to trespassing children, who, because of their youth, do not realize the danger of the condition.

o O' Sullivan: the open and obvious danger rule operates to negate the existence of duty of care.

c. Firefighters Rule

Firefighters, police, and public safety( what about ambulance ppl? ) who come onto private property in the performance of their duties are treated as mere licensees so that the owner does not owe them a duty to inspect the premises or to make the premises reasonable safe. Most common application of this is a firefighter who is injured while fighting a blaze cannot recover from the owner of the premises even if the owner's negligence caused his fire.

Minnich: This rule doesnt bar an emergency professional such as a police officer or firefighter or public safety officer who is injured as a result of performing his or her duties from recovering tort based damages from the party whose neg caused the injury.

d. Adopting a Reasonable Case Standard for Landowners Rowland: Where a land occupier is aware of a concealed condition

involving in the absence of precautions, an unreasonable risk of harm to those coming in contact with it, and is aware that a person is about to come in contact with in and failure to warn or to repair the condition constitutes neg

e. Lessors A tenant is treated as if she were the owner all the rules of

owner liability apply equally to them. Generally a lessor is not liable in tort once he transfers

possession to the lessee. however, there are a umber of exception to this ruleoKnown to lessor, unknown to lessee dangers existing

at the start of the lease which the lessor knows or should know about and which the lessee has no reason to know about.

oOpen to public: If the lessor has a reason to believe that the lessee will hold the premises open to the public, the lessor has an affirmative duty to inspect the premises to find and repair dangers before the lease starts.

oCommon areas: Lessor has a general duty to use reasonable care to make common areas safe.

oLessor contracts to repair: Lessors contracts as part of the lease to keep the premises in good repair. EX: P must show that D failed to use reasonable care in performing it is not enough t show that D breached the contract.

oNegligent repairs: if the landlord begins to make repairs and either performs them unreasonably or fails to finish them. Courts are split about what happens when the landlord starts the repair then abandons it without worsening the danger.

Pagelsdorf: A landlord is under a duty to exercise ordinary care in the maintenance of the premises

A landlord generally doesnt have a duty of care to the social guest of a tenant with 6 exceptions

o Undisclosed or dangerous condition known to the lessor and unknown to the lessee

o Conditions dangerous to persons outside the premiseso Premises leased for admission of the publico Parts of land retained in lessors control which lessee is

entitled to use like community areaso Where lessor control to repair then he must repairo Negligence by lessor in making repairs.

b. Duties of Medical and Other Professionals- Cases

o It is insufficient for a P to establish a prima facie case of medical malpractice merely to present testimony of another physician that he would have acted differently from the D

o A physician must exercise that degree of care, skill, and proficiency exercised by reasonably careful, skillful, and prudent practitioners in the same class to which he belongs, acting under the same or similar circumstances.

o the doctrine of res ipsa locquitor permits a fact finder to find negligence simply from the fact that an injury occurred, when the injury is of a kind that ordinarily does not occur absent negligence.

o Where a P receives unusual injuries while unconscious and in the course of medical treatment the doctrine of res ipsa may be used to infer negligent conduct on the part of all those D that had control over him or the instrumentalities which might have caused the injuries.

o A physician owes his patient the duty to disclose in a reasonable manner all significant medical information that the physician possesses or reasonably should possess that is material to an intelligent decision by the patient whether to undergo a proposed procedure.

o a hospital must provide appropriate medical screening within the capability of the hospitals emergency department to determine whether an emergency condition exists and if it does the patient may not be discharged until he has received stabilizing treatment or has been appropriately transferred.

- the standard of care is determined by the customary care provided by other physicians of the same type of practices

- When there are diff standards of care and the medical authority is divided then the which ever side the physician sits on is the one he is held to follow

- Malpractice: If D has a higher degree of knowledge skill or experience then a reasonable person with the same and they must use a higher level.

1. level of care is the one that is common to the standard accepted by that practice.

- P must show more than an unwanted result. Nor is the coming about of an inherent risk proof of malpractice. P must show that the D doctors deviation from customary practice caused P injury.

i. Good results not guaranteed: A professional will typically not be held to a guarantee that a successful result will occur only that she will use the minimum skill and competence

ii. Differing Schools: D will be held to be in the school he follows even if there are conflicting schools

iii. Specialist: If D is a specialist then D will be held to the standard of his specialty

iv. Novice: one who i novice is generally held to the same standard of care that a seasoned professional is

2. Informed Consent: In the case of a physician, part of the professional duty is to adequately disclose the risks of proposed treatment to the patient in advance. The rule requiring adequate disclosure is called the rule of informed consent. Doctor must disclose to the patient all risks inherent in the proposed treatment which are sufficiently material that a reasonable patient would take them into account in deciding whether to undergo the treatment. Failure to get teh patient adequate consent is deemed as a form of malpractice informed consent the doctor must only disclose however the risks inherent

What must be disclosed? What is the nature of the treatment? What is the risk of the treatment? What are the feasible alternatives? What are the consequences of non-

treatment? What does not have to be disclosed?

Known & obvious. No duty to inform what should be reasonably known by others.

Where the knowledge of risk may cause harm.

Emergencies - no need to give informed consent

Immaterial risks - things that are not of consequences; only material risks are required.

Learned intermediary doctrine for drugs: In the case of prescriptive drugs the warning generally needs to be given only to the physician- who is a "learned intermediary" between manufacturer and user- not to the user.

Hospitals do not assume liability for physicians directed actions. However, they will be liable if they fail to train or for inadequate facilities

a. Traditional Duties of Health Care Providers in Traditional Practice

Caseso Walski: The Plaintiff has the burden of proving a D doctor

violated the prevailing standard of care in order to est medical malpractice

o Vergara: The standard of care to which a physician should be held accountable should not be dictate by local customs but rather national standards

b. Res Ipsa Loquitor Applies only when a permissible inference arises that the event

would not ordinarily occur without negligence States: It is proper in medical malpractice cases to allow the use of

expert medical testimony to inform a jury decision on the 1st element of res ipsa loquitor ie that the injury-causing event is of the kind that ordinarily does not occur in the absence of neg.

Ybarra: Where unexplained injury occurs during a medical procedure to a part of the body not under treatment, res ipsa loquitor applies against all of the drs and medical employees who take part in caring for the patient.

c. Informed Consent Ever person has the right being an adult to determine what shall be

done with his own body and a surgeon who performs an operation without patients consent commits an battery for which he is liable

Some courts also treat cases where the patient has consent without appropriate information as liable to a battery but it is informed consent on negligence not battery

Harnish: A physician owes his patient the duty to disclose in a reasonable manner all signifigant medical information that the physician possesses or reasonably should possess that is material to an intelligent decision by the patient whether to undergo a proposed procedure.

Does not require that the patient be warned about the succes rate but simply warned about risks, consequences of the medical procedure

Dr has no duty to what is not standard within the medical community

d. Other Professionals-Nurses are held to the standard of other nurses in similar practice- Educator may be committing intentional torts by failure to remove a

dangerous condition on the school grounds- Hospitals owe a duty of reasonable care under the national

standards set forth by hospital accrededation commission- Pharmacists owe their clients no duty to warn of possible side effects

as they are not the ones who prescribe the medicine. the doctor held liabled. Governmental Entities Immunity

Cases

o The FTCA requires a court to look to the state law on the liability of private entities, not to those of public entities, when assessing the governments liability under the FTCA in the performance of activities that private persons do not perform

o Because removing an obvious health hazard is a matter of safety rather than policy, the government alleged failure to do so is not protected under the discretionary function exception

o A municipality is not liable for failure to provide special police protection to a member of the public who was repeatedly threatened with personal harm and eventually suffered injuries for lack of protection

o in order for the discretionary function exception to apply to governmental acts the conduct must involve making a policy or planning judgment

o Qualified immunity does not attach when the state deprives an individual of a constitutional right that is clearly established at the time of deprivation

o A municipality may be liable for civil rights violations if there is proof of the existence of a custom or informal policy with repeated constitutional violations for which municipal officials were not discharged or reprimanded, even if the official policy-makers did not have actual knowledge of the custom and practice.

Traditional Immunities and Their Passingo P must submit a claim to the agency first then if the

agency refuses payment or has delayed for over 6 months in making a decision then they can file a suit

o Public Policy Doctrine: public entities and officers are not liable to individuals for failure to carry out a duty, even a statutory duty, owed to the public at large rather than to particular individuals or groups. Can be narrowed if the officer or entity takes affirmative action that endangers the P or if the duty becomes individualized because of a special relationship with the P

o the officer is not liable for failure to arrest a drunk but he is liable if he himself causes injury by driving negligently

Federal Tort Claims Acto Government not liable for intentional torts. o The discretionary function doctrine applies only to those

discretionary acts that are founded on planning or policy considerations.

o 2 factors are usually considered in determining whether an act is discretionary

the act must have been discretionary that is involving judgment of choice

the discretion must have been exercised on the basis of some governmental policy

o Can only sue if the discretionary acts are funded on planning or policy

o A special relationship between the city and the caller. The victims plea for assistance was not refused. The special relationship btwn the D and the caller required the D to exercise ordinary care in the performance of a duty it has voluntary assumed. Once they decide to provide protection then they have a duty to protect

o Yes. Absent a specific legislative mandate to the contrary the govt is under no duty of care to protect the public generally from external hazards and particularly to control the activities of criminal wrongdoers and immunity applies even where specific threats have been made known to the authorities by particularly endangered persons.

o Absent a specific legislation mandate to the contrary the govt is under not duty of care to protect the public generally from external hazards and particularly to control the activities of criminal wrongdoers

o The General Structure of the FTCA

o Cases US v. Olson: Under the Federal Tort Claims Act the

United states waives sovereign immunity only where local law a would make a private person liable in tort not where local law would make a state or municipal entity liable.

o The Discretionary or Basic Policy Immunity Cases

Whisant: The discretionary function exception of the Federal Torts Claims Act applies to the design of a course of governmental action but not to its implementation

o Immunities Under State Law Cases

Riss: Absent a specific legislative mandate to the contrary the govt is under no duty of care "to protect the public generally from external hazards and particularly to control the activities of criminal wrongdoers.

Harrry Stoller: The discretionary function doctrine applies only to those discretionary acts that are founded on planning or policy considerations

o Officers Cases

Vaughn: A social service worker is not entitled to qualified immunity from a due process claim where the social service worker informs a parent that the State will more likely let the parent have custody of the parent's children on condition that the parent submit to sterilization.

o State and Municipal Liability under § 1983 States often had copied fica in their immunities that

they seek Cases

Navarro : If a municipality operates under a particular custom and that custom visits constitutional deprivations upon certain individuals, then the municipality will lose its immunity from 1983 liability even though the custom has not received formal approval from the municipal body's official decision-making body.

e. Nonfeasance a. The No Duty to Act Rule

General common law rule is that one person owes another no duty to take active or affirmative steps for the others protection.

Nonfeasance is doing nothing and thus you are not liable A person has no duty to rescue another person unless he is

responsible for placing that person in peril Misfeasance is negligence is doing something active which you are

liable for Cases

o A person has duty to rescue another person unless he is responsible for placing that person in peril. There is no duty to rescue or assist one who is in a position of peril

o one who voluntarily undertakes to render services to another is liable for bodily harm caused by his failure to perform such services with due care or with such competence and skill as he possesses

o Social companions have a duty to aid one another in situations of peril

o when there is some relation btwn strangers then a duty exists to aid the other who is in danger

o a public entity must have custody of another in order to hold it liable for depriving the person of federal due process rights by failing to prevent harm caused by a 3rd person

b. Exceptions, Qualifications and Questions

If a person knows or has reason to know that his conduct, whether tortious or innocent has caused harm to another person he then has a duty to render assistance to prevent further harm

If a person has created an unreasonable risk of harm, even innocently, a duty of reasonable care arises to employ reasonable care to prevent the harm from occurring

A court may use a statute to find an affirmative duty to assist or protect that is enforceable

Special Relationshipo Formal relationships that place the D under a duty of

reasonable care for the P safety, including reasonable affirmative efforts to rescue. The relationships are those of carrier-passenger, innkeeper-guest, landowner-lawful entrant, employer-employee, school-student, landlord tenant, and custodian-person in custody. Not exclusive just examples

o here the D is already doing something affirmatively that should produce a duty of acting reasonably under the circumstances.

o Where this exists then the D will have a duty of reasonable care whether or not the D had anything to do with creating or increasing the risk of harm to the P

Caseso Wakulich: Where someone takes actions demonstrating an

undertaking concerning another's well being the former voluntarily assumers a duty to care for the latter

An actor who undertakes to render services to another, when the actor knows or should know that those services will reduce the risk of harm to the other, has a duty to use reasonable care in rendering those services if the failure to exercise care would increase the risk of harm beyond which would have existed without undertaking; or if the other person relies on the actor's using reasonable care in the undertaking.

o Farwell: When one attempts to aid another person, a duty arises that requires him to act as a reasonable person.

o Podias: When a driver is unwilling or unable to seek emergency aid for a victim struck by the drivers vehicl,e the driver passengers have an affirmative duty to see emergency aid or take other precautionary measures to prevent further harm to the victim.

o DeShaney: Govt officials do not violate a minor's civil rights by not removing him from a violent guardian, even if they have knowledge of the guardian's violent tendencies.

f. Contract and Duty Unenforceable Promises:

o Cases:

Under the common law, once who undertakes to do an act for another without reward is not answerable for omitting to do the act and is only responsible when he attempts to do it and does it amiss.

When on person promises to do something for another and that promise is gratuitous that person is not liable under tort law if they take no action to fulfill the promise

Under MI law in order for an action in tort arise out of a breach of contract, the act complained of must constitute (1) a breach of duty separate and distinct from the breach of K and (2) active negligence or misfeasance

A party can not maintain an action in torts based on a contract ot which they are not neither a party nor an intended 3rd party beneficiary

When the D does nothing to increase the risk of physical harm to P beyond that which already existed at the intersection, a D will not be held liable for simply failing to complete before the P accident a project that might have reduced the preexisting hazard.

A police department having assumed the duty to special class of persons and having gone forward with performance of that duty in the past has no obligation to continue its performance

Enforceable Promises: o An actor who undertakes to render services to another, when

the actor knows or should know that the services will reduce the risk of physical harm to the other, owes a duty of reasonable care in carrying out that undertaking if (a) the failure to exercise care increases the risk of harm beyond that which would have existed without the undertaking, or (b) the other person relies on the undertaking

o If the D conduct would be a tort without a contract then you are in the clear.

o Lessor is subject to liability for physical harm to the lessee and others on the land with the lessee's permission caused by a condition of disrepair, if (1) the lessor had contracted the repair, (2) the disrepair creates an unreasonable risk, and (3) the lessor fails to exercise reasonable care to perform his contract

o Person in a special relationship with another owes the other a duty of reasonable care with regard to risks that arise within the scope of the relaionship

o Cases Spengler: In order to establish breach of tort duty

against a contracting party, the contracting party must commit some act that breaches a duty separate and distinct from that party contractual obligations.

Promises to 3rd Persons (actions as promises or undertakings)o Cases

H. R. Moch: A party whose performance of a contract incidentally confers a benefit upon third parties does not owe any duty to continue to perform in a manner which is satisfactory to those parties.

Paz: One who undertakes to render services to another which he should recognize as necessary for the protection of a third person is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to perform his undertaking if his failure to exercise reasonable care increased risk of such harm, he had undertaken to perform a duty owed by the other to the 3rd person, or the harm was suffered because of the reliance of the other or the third person on the undertaking.

Actions as a Promise or Undertakingo Cases

Florence: A city may be liable for failing to provide a crossing guard on a particular day when normally such a guard is assigned.

- Governemental Immunities-Relationship or Their Absence: Non-Action, Contract and protection from Others

Nonfeasance 437-458 Contract and Duty, 458-477 Defendant's Relationship and Plaintiff and Dangerous Persons

- Duty to Protect from Third Persons Duty to warn of criminal conduct may only exist to a third party only if

a special relationship exists between them. Landowner does not owe a duty to protect patrons from the violent

acts of third parties unless he is aware of specific, imminent harm about to befall them

Cases:o An affirmative duty to warn or protect against the criminal

conduct of 3rd party may be imposed on one for the benefit of another only if there exists a special relationship between them

o A very high degree of foreseeability is required to give rise to a duty to post security guards but lower degree of foreseeability may support a duty to implement lesser security measures

o Failure to report abuse in accordance with the statute could give rise to liability provided the P can show that reporting would have prevented the subsequent abuse

o Once you realize someone is noticable intoxicated then you have a duty to not serve them

- Emotional/Mental Harm/Distress

An actor who by extreme and outrageous conduct intentionally or recklessly causes severe emotional disturbance to another is subject to liability for the emotional disturbance causes bodily harm, also for the bodily harm.

A single request for sexual conduct is not sufficient however repeated and harassing requests for sexual attention can be outrageous

Abuse of power by the D takes many forms. It might involve employers and employees or public officials and those is subordinate positions

Further proof if the D knows of the P vulnerability A person can not be held liable for merely by exercising a right even

when they are substantially certain that it will cause emotional distress such as filing for a divorce

P must prove a sufficient link between the D conduct and P distress Determining whether conduct is extreme and outrageous is a fact and

case by case decisiono Most common

repeated or carried out over a period of time; or an abuse of power by a person with some authority over

the P; or Directed at a person known to be especially vulnerable

Accompanied by physical threat: If D causes an actual physical impact to Ps person D is liable not only for the physical consequences of that act but also for all of the emotional of mental suffering which flows naturally from it.

If no physical contact then or direct physical injury to P courts limit right to recover for mental suffering.

If P suffers some type of emotional harm of being at risk after exposure to some type of substance and there is an increased likelihood thus they are upset most courts will not allows recovery for this

Physical injury without impact: Where D negligently act 1) physically endangers P, 2) does not result in physical impact on P, and 3) causes P to suffer emotional distress that has physical consequences nearly all courts allow recovery.

Fear for others safety: If P suffers purely emotional distress and no physical consequences and Ps distress is due solely to fear or grief about the danger or harm to 3rd persons court are split.

o Zone of danger: If P was in the zone of danger nearly all courts allow recovery for mere distress due to another person's plight. EX: D narrowly avoid running over running over P, and in fact runs over P's child S. Most courts will allow P to recover for her emotional distress at seeing S injured.

Bar recovery for bystanders who are not directly involved If he was close enough to the D negligent conduct to be

placed at risk of physical injury, even though he was not actually touched. Under the zone of danger rule a mother walking next to a child hit by a negligent driver would recover for emotional distress due to witnessing injury to her child since she was not hit herself.

Injury of a bystander is foreseeable the D has a duty to avoid injury either physical or emotional to him

P who suffers a direct injury can also recover for EHo Abandonment of zone requirement: A number of states

probably still a minority have abandoned the zone of danger requirement. In theses courts so long as P observes the danger or injury to X, and X is a close relative of P, P may recover.

Intentional and Negligent Infliction of Emotional Distress, 511-43o Cases:

Where outrageous conduct is directed at a third person the conduct must be witnessed by a member of the third person's immediate family for that family member to recover damages for the intentional or reckless infliction of emotional distress.

to establish this in the workplace an employees must prove the existence of some conduct that brings the dispute outside the scope of an ordinary employment dispute and into the realm of extreme and outrageous conduct

There are situations in which conduct directed principally at one person has been regarded as extreme and outrageous as to another, but normally the other person must be present to witness the conduct in order to recover

a worker within the zone of danger of physical impact will be able to recover for emotional injury caused by fear for physical injury to himself, whereas a worker outside the zone will not

a toxic exposure P need not meet the more liekly than not threshold for fear of cancer recovery in a negligence action if the P pleads and proves that the D conduct in causing the exposure amounts to oppression, fraud, or malice, which authorizes the imposition of damages

o The Emotional Distress Claim Grube: Fpr an individual to recover damages for the

negligent infliction of emotional injury caused by witnessing an accident not only must the individual be within the zone of danger of physical impact, but the individual must also suffer emotional injury caused by fear of physical injury to himself.

o The Loss of Consortium Claim This claim relates to spousal person who lose the spouse

and it relates to more then sex, activites...etc Can not claim for a parent child loss Cases

Boucher: Parent of an adult who is injured dur to medical malpractice may not recover for the trauma of observing his injuries or for the loss of consortium

Toxic Exposures, 585-598

o Fear of Future Harm: Limits on Recovery: Cases

Potter: The absence of a present physical injury after exposure to a toxic substance will not preclude recovery for emotional distress engendered by the fear of future illness.

- Special Types of Harm-Prenatal Harms and Death,

Caseso A mother is not liable for her child's prenatal injuries caused by

the mothers negligenceo A parent may recover the child-rearing expenses for an

unwanted child when the parent successfully proves a physicians medical malpractice

Most courts have rejected have rejected the traditional view that an infant injured in pre-natal accident could never recover if born alive. Today, recovery for pre-natal injured varies:

o Child born alive: If the child is eventually born alive, nearly all courts allow recovery. EX: prenatal deformities after mother has taken a drug from D Doctors and manufacturors, hospitals

o Child not born alive: Courts are split about whether suit can be brought on behalf of a child who was not born alive, Usually, a court will allow recovery only if it finds that a fetus never born alive is a "person" for purposes of the wrongful death statue.

before a wrongful death suit may be filed a child must be born alive even if it is just for one seconds

o Pre-conception injuries: Above assumes that the injury occurred while the child was in utero. Suppose, however that the injury occurred before the child was even conceived, but that some effects from the injury is nonetheless suffered by the later-conceived child. Here, courts are split as to whether the child may recover.

o Wrongful Life: If a child is born illegitimate, or with an unpreventable congenital disease, the child may argue that it should be entitled to recover for wrongful life, in the sense that it would have been better off aborted. Courts often do allow the parents (only never children) to recover for their medical expenses and perhaps their emotional distress from the child condition.

and Preconception Injuryo Cases

Remy: A child, born alive, cannot maintain a cause of action in tort against the child's mother for personal injuries incurred before a birth because of the mothers negligence.

Wrongful Life, Birth or Conceptiono Cases

Chaffee: A parent may seek to recover child-rearing costs from physician who has negligently performed a procedure to prevent conception by the parent.

- Vicarious Liability, Cases

o Where the employer and employee have made the travel time part of the working day by their contract and the employee is using the time for the designated purpose of returning home, the doctrine of respondeat superior is applicable

o the smoking of a cigarette if done wile engaged in the business of the employer, is within the employee's scope of employment because it is minor deviation from the employee's work-related activities, and thus merely an act done incidental to general employment

o a sexual tort will not be considered engendered by the employment unless the motivating emotions were fairly attributable o work-related events or conditions

o foster parents are not deemed to be agents or employees of state family service agencies

o An employer remains liable for injuries caused by its independent contractors when the employer is under a non-delegable duty to take special precautions to prevent a peculiar risk of harm to others

o to prevail against a principal for hiring an incompetent contractor the P must show that the contractor was in fact incompetent or unskilled to perform the job for which he or she was hired that the harm that resulted arose out of that incompetence and that the principal knew or should have known of the incompetence

Respondeat Superior and Scope of Employmento Definition of Respondeat superior doctrine: If an employee

commits a tort during the scope of his employment, his employer will be liable ( jointly with the employee). This is the rule of respondeat superior.

o the employer is liable even if it took stringent measures to prevent accidents. Liability flows automatically from the employees tort regardless of the care the employer exercised in selecting or supervising him

o the acts done by the masters bidding are treated as though the employer performed them himself

o Scope of employment outside-going and coming Inside factors ( furtherance, time and space, kind of

work authorized by the employer) Intentional torts: can be diff

depends on the motivation for the intentional tort and if it arises out of work

is there something about you work that makes you engage intentional torts or is it just you and your personal predilection

o EX: Employment at mall at xmas time diff

o EX: if you hire a bouncer then it is reasonable to expect that they will punch someone

o EX: Diff from a dentist who cleans you teeth and sexually assault ppl

Minor deviations are still within the scope of employment

o Who is an employee? Know the diff btwn employee and independent contractor.

Distinction: Main idea is that an employee is one who works subject to the close control of the person who has hired him. Independent contractor although hired to produce a certain result, is not subject to the close control of the person doing the hiring.

Physical details: "Control" required to make a person an employee rather than an independent contractor is usually held to be control over the physical detail of the work not just the general manner in which the work is turned out.

Scope of employment: Respondeat superior applies only if the employee was acting within the scope f his employment when the tort occurred. The tort is within the scope of employment if the tortfeasor was acting with an intent to further his employers business purpose, even if the means he chose were indirect, unwise or even forbidden.

Conduct of a servant is within the scope of employment if and only if

o it is of the kind he is employed to performo it occurs substantially within the authorized

time and space limitso it is actuated at leas in part by purpose to

serve the master and o if force is intentionally used by the servant

against another the use of force is not unexpectedly by the master

Ex: suppose that an employer is smoking on the job or bumps a visitor on the way to the bathroom then the acts do not directly further the masters enterprise but they are normal incidents of the work experience

if the Bogart provides all the tools pays Bacall by the hour, determines when she will work and exactly what she will do, Bacall would likely be characterized as an employee. If bacall works with his won truck and tools and works when she choose and decides what work needs to be done then she is likely an independent contractor

often said that a person is an employee ( or servant) if the employer has the right of control over the person in the performance of the work

Factors that court will look to: the extent of control which the master is

authorized to exercise over the details of work

Whether the actor is engaged in a distinct occupation or business

Whether the type is customarily performed under the employers supervision or by a specialist without supervision and the extent of skill required

Who supplies the tools other equipment and places of work

the length of time for which the person is employed

whether the person is paid on time basis or by the job (contractors are hired to accomplish a certain goal

Whether the employer is in business and whether the work is part of the employers regular business

the parties belief as to the nature of the relation

Coming and Going Rule: Trips from home: Most courts hold that where an accident occurs where the employee is traveling from her home to work she is not acting within the scope of her employment. If the employee is returning home after business, courts are divided.

o Exceptions to the Coming and Going Rule If the employee is engaging in a

special errand or mission on behalf of the employer

the employer requires the employee to drive his personal work vehicle to work so that the vehicle may be used

for work related tasks and the employee is on call

Frolic and Detour: May be found within the scope of employment if the deviation was reasonably foreseeable. How do you determine what deviation is reasonably foreseeable?

Forbidden acts: Even if the act done was expressly forbidden by the employer is will be within the scope of employment if done furtherance of the employment.

Intentional torts: this does not relieve the employer of liabilityoPersonal motives: But if the employee

merely acts from personal motives the employer will generally not be liable

oVicarious liability for intentional torts: courts do hold employers liable for at least some intentional torts. EX: courts have fairly consistently held employers liable where an employee commits an intentional tort in order to serve (however misguidedly) the employers purpose.

o Independent Contractors: No general liability for one who hires them . franchise owners are seen as independent contractors

unless you can prove that the injury of harm that result was some from direct action although it is not a strong case

Liability for Individual Contractors ( employer who are not masters)

General Rule: No you are not liable for the acts of the independent contractor bc they are not your employee

Who is a Ind Contractor? DC v. Hampton ( control is the biggest but find the other factors)( if you have enough control then that puts you In)( what do they have control over)

Notes ( see if they have other ppl they work for helps determine if they are a contractor) ( who is supplying the tools)

Exceptiono Non delegable duty (pusie v. bater find

policy if we dont do this then you get away with it by hiring a 3rd party)( when you bring ppl on to do things that are inherently dangerous then you still have a duty to maintain a safe home, worksite, and keep customer/employee safe)

inherent danger landowners

o Incompetent Contractors: holding them liable bc they hired an incompetent contractor bc you need to make sure they are competent to do what you need them to do. Reason to know they are incompetent and reasonably maintain supervision

Exceptions:

Employers own liability: 1st If the employer is herself negligent in her own dealings with the independent contractor, this can give rise to employer liability.

Non-delegable duty: 2nd some duties of car that are deemed so important that the person doing them will not be allowed to delegate them to anyone. Some situations where duties are non-delegableo the work is likely to involve a peculiar risk of

physical harm to others unless special precautions are take.

o the work is done in a public place like on the sidewalk or side of the road, in a park

o the person hiring the contractor is landowner who owes the P a duty to use reasonable care to keep the premises safe.

o Joint Enterprise Generally: where it exists may subject each of the

participants to vicarious liability for the others negligence. Like a partnership, except that it is for a short and specific purpose ( a trip, used often in car accidents?? example)

Requirements for joint enterprise: 4 (1) agreement express or implied between the members (2) a common purpose to be carried out by the members; (3) a common pecuniary interest in that purpose; and (4) an equal right to a voice in the enterprise ( an equal right of control)

o Cases: Hinman: Where the employer and employee have made

the travel time part of the working day by their contract, the employer should be treat as such during the travel time so that the doctrine of respondent superior applies as long as the employee is using the time for the designated purpose.

Edgewater: An employer can be held vicariously liable for his employee's negligent smoking of a cigarette if the employee was otherwise acting in the scope of his employment at the time of the negligent act.

Henry Mayo Newhall Memorial Hospital: While neither are dispositive, the factors of employee motive and foreseeability of misconduct are both relevant to the analysis of respondeat superior liability for intentional torts.

Employers Who Are Not Masters:o Cases

DC v. Hampton: A principal must have the right to control an agent in the performance of her duties

Pusey v. Bator: An employer is liable for the negligent acts of an independent contractor, armed security guard.

O'Banner: If a principal creates the appearance that an entity is an agent an innocent third party must still show reliance on the appearance and a resulting harm before the principal will be liable for acts or omission of a apparent agent.

Puckrein: A principal will be liable for the actions of an independent contractor if the independent contractor was incompetent, the harm involved arose out of the incompetence and the principal knew or should have known about the contractors incompetence.

- Strict Liability

Liability without fault it is strictly policy based Standard of care is that D has to make sure that nothing happens

to P Cases

o A D is strictly liable for trespasso The P must prove that the D was negligent and at fault

for the injury to recover for trespasso A landowner's unusual or uncommon use of his land

that interferes with adjoining property owners enjoyment and use of their land subjects the landowner to liability for nuisance

o A landowner is strictly liable for damage to adjoining land resulting from the unnatural or abnormal use of his lnad

Abnormally Dangerous Activities, Strict liability Generally: Nature of D activity imposes an absolute

duty to make safe; the dangerous aspect of the activity is the actual and proximate cause of the P's injury and; the P suffered damage to person or property

Must be proved: Absolute duty owed by a commercial supplier, production or sale of defective product, actual and proximate cause and damages

o Special situations of defective products 3 major contexts. Liability regardless of Ds intent and regardless of whether D was negligent. Types include

Strict liability for carrying out abnormally dangerous or ultra hazardous activities and

strict liability on the part of an employer for the employees on-the-job injuries a liability that is enforced by workers compensation statutes enacted in all states.

o Abnormally Dangerous Activities General Rule: A person is strictly liable for any damage

which occur s while he is conducting an abnormally dangerous activity.

6 factors how are they considered all or some must or may?

high degree of risk of some harm to others harm that results is likely to be serious risk cannot be eliminated by the exercise of

reasonable care the activity is not common the activity is not appropriate for the place where

it is carried on; and the danger outweighs the activity's value to the

community Requirement of unavoidable danger: Most important

factor is that the activity be one which cannot be carried out safely even with the exercise of reasonable care

Examples: nuclear reactor, explosives, crop dusting, airplane accidents

A company that processes volatile chemicals will more likely be held strictly liable if its factory is located in a densely populated area than a sparsely populated countryside

It is unlikely that courts will reject strict liability for high risk activity simply because the D choose an appropriate locale for the activity

The fact that the activity could have been carried on elsewhere with less risk to the community will stregthen the case for liability but choosing an appropriate site will probably not by itself preclude application of strict liability

strict liability doesnt apply to collateral injurieso Limitations on Strict Liability: there is strict liability for

damage which results from the kind of risk that made the activity abnormally dangerous. EX: D operates a truck carrying dynamite and the truck strikes and kills P. P must show negligence. Transporting dynamite may be ultrahazardous but Ps death has not resulted from the kind of risk that made this activity abnormally dangerous.

Scope of risk: There is strict liability only for damage, which results from the kind of risk that made the activity abnormally dangerous

Abnormally sensitive activity by P:D will not be liable for this abnormally dangerous activities if the harm would not have occurred except for the fact the P conducts an abnormally sensitive activity.

Abnormally sensitive activity by p: that D will not be liable for his abnormally dangerous activities if the harm would not have occurred except for the fact that P conducts an abnormally sensitive activity. EX: D's blasting operations frighten female mink owned by P; the mink kill their young in reaction to their fright. D is not strictly liable, because P was conducting an abnormally sensitive activity.

Contributory negligence no defense but assumption of risk is

Unreasonable assumption of risk: Assumption of risk is a defense to strict liability. If P knowingly and voluntarily subjects herself to the danger this will be a defense whether P acted reasonably or unreasonably in doing so. Ordinarily is not a bar from strict liability recovery

o Defenses Based on Plaintiff Conduct Contributory negligence: A D is not as useful for strict

liability and warranty as it is against a negligence claim Assumption of the risk is the only defense to an action

based on abnormally dangerous activity the fact that the P failed to use reasonable

Strict Liability: Only certain types are defenseso Failure to discover danger: If Ps

contibutory negligence lies in failing to inspect the product, or otherwise failing to become aware of the danger from it, virtually all courts agree that this is not a defensse

o Abnormal Use: If P contributory negligence consists of her abnormal use or misuse of the product this is a defense of strict liability but only if the misuse was not relatively foreseeable

o Comparative negligence: Courts are split about whether P contributory negligence should result in a proportionate reduction in P strict liability recover.

o Workers Compensation Generally: all states have a WC statute which

compensate the employee for on the job injured without regard either to the employers fault or the employee's

No fault: employer is liable for on-the-job injuries even though these occur completely without fault on the part of the employer. Even if the employee is contributorily negligent the statutory benefits are not reduced at all.

Arising out of employment: Typical statute convers injuries arising out of and in the course of employment. Thus activities which are purely personal ( traveling to and from work) are not typically covered

Exclusive remedy: WC statute is the employees sole remedy against the employer. Employee gives up his right to sue in tort and does not recover anything for pain and suffering. Unless P can show that employer intentionally

injured him but then you can pursue common law action. Few cases have allowed the employee to sue where the employer has willfully disregarded safety regulations. But most have haled that the employers failure to observe safety regulations or to keep equipment in good repair does not amount to an intentional act and thus does not permit the employee to escape WC as the sole remedy

3rd parties: WC statute does not prevent the worker from suing a third party who under common law principles would be liable for the workers injuries.

o add slides on twen

SL when: D activity creates reasonably foreseeable risk of physical harm, that risk is signifigant risk, the risk remains even when reasonable care is exercised, the activity is not matter of common usage.

If reasonable care will reduce risks to less that signifigant SL does not apply. Thus the terms above apply only to avoidably dangerous activities

Person engaging in activity shouldnt reap all the benefits and not suffer he burdens. You need to carry your own weigh. If there is certainty the arm will result then your short

get all from nots impoundment of noxious substances(slime ponds). SL can be imposed

whether suddenly escape or percolate, hazardous wastes are good candidates for SL because of abnormal danger, removing lateral support of neighbors land, SL generally applies to either storage or blasting explosives,

Strict Liability for Trespassory Torts and the Advent of Fault Theory:

o Cases Weaver: An actor is liable for injury directly caused by his

act unless he can prove himself utterly without fault. Brown: If in the prosecution of a lawful act, a casualty

purely accidental arises, ie the injury was unavoidable, and the conduct of the D was free from blame no action can be supported for an injury arising therefrom.

Strict Liability Cases Rylands: Where one brings on his land something

which, if it escapes, will naturally do harm to the land or person of another, he will be liable regardless of fault unless the injured party was somehow neg.

Sulivan v. Dunham: abnormally dangerous activity. Held strictly liable for harm resulting from blasting bc it cause direct harm. Reject the requirement of fault for liability

Exner v. Sherman: they created an unacceptable danger to the community and it was for their benefit only. sks whether abonormally dangerous activity. Holds that when D has engaged in perilous activity.....

- Products Liability Introduction 3 theories: refers to the liability of a seller of a tangible item which

because of a defect causes injury to its purchaser, user, or sometimes bystanders. Usually the injury is personal injury. Liability can be based upon any of the 3 theories. Negligence, Warranty, strict liability

Negligenceo Negligence and privity: neg rules apply to a case in which

personal injury has been caused by a carelessly manufactured product.

Privity: use of negligence in product liability actions was limited by requirement of privity ie the requirement the P must show that he contracted directly with D. But every state ha no rejected the privity requirement where a negligently manufactured product has caused personal injuries. It is now the case that one who negligently manufactures a product is liable for any personal injuries proximately caused by his negligence. the connection of relationship between two parties, each havin a legally recognized interest in the same subject matter ( such as transaction, proceeding, or piece of property); mutuality of interest

ONLY parties to the contract or in PRIVITY to the contract can be bound by them. HOWEVER 3rd parties who stand to beenfit from the contract are sometimes found to have rights within that contract

Nonfeasance: when there is only the promise and breach of contract only the contract action will lie and no tort action can be maintained

Misfeasance: When the D misperforms the contract the possibility of recovery in tort is greatly enhanced

Bystander: P is a bystander then P can recover in negligence if he can show that he was a foreseeable P.

o Conduct is critical - four types (breach of duty of care) Negligent design - all products are defective Negligent manufacturing - only that product is defective Negligent warnings Negligent inspection

o Who can be a P? Anyone who is in the foreseeable "zone of danger" including bystanders

o Classes of Defendants: Manufacturers: the manufacturere is the person in the

distribution chain who most likely to have been negligent. May be negligent because he

carelessly designed the product carelessly manufactured it carelessly performed (or failed to perform)

reasonable inspections and tests of finished products

failed to package and ship the product in a reasonably safe way or

did not take reasonable care to obtain quality components from a reliable source

Retailers: a retailer who sells a defective product may be but usually is not liable in negligence. Mere fact that D has sold a negligently manufacture or designed product is not by itself enough to show that she failed to use due care. The retailer ordinarily has no duty to inspect the goods. Thus suit against the retailer is now normally brought on a warranty or strict liability theory not negligence.

Other Suppliers: bailors of tangible property. sellers, lessors of real estate and suppliers of product-related services may all be used on a negligence theory

o Warranty under Products Liability A buyer of goods which are not as they are contracted to

be may bring an action for breach of warranty. Two types of warranties EXPRESS and IMPLIED Express Warranties: A seller may expressly represent

that her goods have certain qualities. If the good turn out not to have those qualities, the purchaser may sue for this breach of warranty

Strict Liability: D's liability for breach of an express warranty is a kind of strict liablity as long as P can show that the representation was not in fact true it doesnt matter that D reasonably believed it to be true, or even that D could not possibly have known that it was untrue

Implied Warranty: The existence of a warranty as to the quality of goods can also be implied from the fact that the seller has offered the goods for sale

Good must be fit for ordinary purposes for which they are used

Seller must be in business and must regularly sell the kinds of goods in question

states have nearly all rejected the idea of a privity requirement for the implied warranty

Privity: States have nearly all rejected any privity requirement for the implied warranties

A manufacturer warranty extends to remote purchasers down the line

In most states any user and even any foreseeable bystander may recover

Warranty Defenses: There are 3 Disclaimers: Seller may disclaim implied and

express warrantieso Merchantability: A seller may make a

written document of a warranty of merchantability but only if it is conspicuous ( letters big and in bold). Also the word merchantability must be specifically mentioned.

Limitation of consequential damages: Seller may limit the remedies available for breach

Products Liability o Strict liability

Rule: Nearly all states apply the doctrine of strict product liability. Basic rules is that a seller of a product is liable without fault for personal injuries (or other physical harm) caused by the product if the product is sold in a defective condition. Once defect is shown seller is liable

even though he used all possible care and even though the P did not buy the product from or have any contractual relationship with the seller.

Non-manufacturer: Strict product liability applies not only to the product's manufacturer but also to its retailer, and any other person in the distributive train (wholesaler) who is in the business of selling such products. EX: Consumer can recover against dealer even though dealer merely resold the product and behaved completely carefully.

Types of Defects: Manufacturing, design, and failure-to-warn defects: there are 3 diff types that may exist 1) a manufacturing defect 2) a design defect; and 3) a warning defect. Diff rules governing diff defect

o Manufacturing: In a manufacturing defect the product is diff from and more dangerous than all the others because the product deviated from the intended design. Something went wrong when it was made so its a lemon of sorts

o Design: All the similar products manufactured by D are the same and they all bear a feature whose design is itself defective and unreasonably dangerous.

o Warning: In a failure to warn case the maker has neglected to give a warning of danger in the product and this lack of warning makes an otherwise-safe product unsafe.

What products meets test: only if it is defective ( What is a Defective Product?)

Defective definition: a product is defective if the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product.

Manufacturing Defects: P will prevail if the product was dangerous beyond the expectation of the ordinary consumer becuase of a departure from its intended design.

o Defective Food Products: Approached with the consumer expectation method

Unavoidably unsafe products: if it is this plus it benefits outweigh its dangers

Prescription drugs: mere side effects are not enough. They are no unavoidably unsafe as long as there is a single group of patients for whom the benefits outweigh the harms

o Consequences: As long as the drug has a net benefit for one group of patients the

maker doesnt need to make the drug safe as it could be with reasonable effort! Because of this many courts have rejected this and require manufacturers to make reasonable effort to make the drug safe

Unknowable dangers: If the danger was unknowable at the time of manufactured there will be no liability. A design defect will exist only "when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design"- so if the risk of harm from the design is unknowable at the time of manufacture, there was no "foreseeable risk" and thus no design-defect liabilty

Failure to Warn: similarly there can be no "failure to warn" liability for a danger whose existence was unknowable at the time of manufacture

Food Products: Where the product is food, most courts apply a "consumer expectation test". Under the test the food product is defective if and only if it contains an ingredient that a reasonable consumer would not expect it to contain.

Obvious Dangers: the fact that a danger is obvious may have an impact on whether the product is deemed defective, and thus on whether D is liable. The treatment of obviousness depends on whether the defect is manufacturing defect, a design defect, or a failure to warn.

Manufacturing defect: When a defect is a manufacturing defect the fact that the danger or defect is obvious probably wont block P from recovering (though under comparative fault - generally applicable in products liability cases- might reduce P's recovery)

Design Defect: If what's alleged is a design defect, under the modern view the obviousness of the defect is a factor bearing upon liability, but it doesnt automatically mean that P cant recover. Instead the question is whether the designs benefits outweigh its dangers considering possible alternative designs if no then P can recover even though he danger was obvious

Failure-to-warn: If the defect or danger is obvious, this will normally prevent failure-to-warn liability. because if P is actually aware of the obvious danger the warning wont add anything, and if P isnt aware of the obvious danger he is unlikely to notice or respond to the warning either.

Proving the case: P in a strict liability case must prove that the item was made or sold by the D that the product was defective

that the defect caused the P injuries and that the defect existed when the product left the

D handso

Cases on Excluding Stand-Alone Economic Harm: Moorman: Strict products liability does not apply to purely economic

losses Manufacturing Defect Cases:

o Lee: A defect in a product may be inferred from circumstantial evidence making a defect more likely than not.

- Design Defects, Def: A design defect must be distinguished for a manufacturing defect.

In a design defect case all teh similar products manufactured by D are the same and they all bear a feature whose design is itself defective and unreasonably dangerous

P must show a reasonable alternative design ie that a less dangerous modification or alternative was economically feasible

o Factors that the courts consider Feasible alternative Usefulness and desirability of the product Availability of safer alternative products the dangers of the product that have been identified by

the time of trial likelihood and probable seriousness of injury obviousness of danger normal public expectation of danger Avoidability of injury by care in use of product ( including

the role of instructions and warnings Feasibility of eliminating the danger without seriously

impairing the products function of making it unduly expensive

diff from a manufacturing defect. guns have no alternative design bc they are meant to inflict damage Here a the similar product manufactured by D are the same and they

all bear a feature whose design is itself defective, and unreasonable dangerous

Negligence predominates: a product has a defective design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor ... and the omission of the alternative design renders the product not reasonably safe.

o P must show that there was a reasonable alternative design (RAD) courts will look at costs and utility

Requires the P to prove that a reasonable alternative design (RAD) was or reasonably could have been available at the time the product was sold or distributed. This is not by itself enough must also show that the product was unreasonably dangerous and foreseeably would cause harm similar to that suffered by the P

Strict Products Liability: Product is defective in its design when the seller could have reduced or avoided the products foreseeable risks of harm by the adoption of a reasonable alternative design and the omission of the alternative design renders the product unreasonably safe.

Obvious danger and design defect: A product that presents an obvious danger and thus provides its won warning may still be defectively designed. Diving into a pool of unknown depth is obviously dangerous so no warning for that is required. However if the manufacturer could have foresee that harm will befall users in spite of obvious danger, the manufacturer may be liable for design defect if it could easily mark the depth and failed to do so.

A product can be unreasonably dangerous under the risk utility test even if it is not more dangerous that the consumer expected; the consumer expectation test cannot be used to bar the P in such a case

2 types of claims for design-defect o Structural defects: P shows that because of D's choice of

material, the product had a structural weakness which caused it to break or otherwise become dangerous

o Lack of safety features: P shows that a safety feature could have been installed o the product with so little expense (compared the costs of the product and the magnitude of danger without the feature) that it is a defective design not install that feature.

State of art: D will be permitted to rebut this by showing that competitive product similarly lack the safety feature.

Suitable for unintended uses: D may be liable not only for injuries when product is used intended but also unintended.

o Unforeseeable misuse: if not reasonably foreseeable misuse then D has no duty to design the product against misuse

o Foreseeable misuse: If the misuse is reasonably foreseeable by D then D must take a reasonable design precautions to guard against the danger from that use. and sometimes a warning is sufficient. Must anticipate reasonably foreseeable uses

Military products sold to and approved by government then the manufacturer will typically be immun even if the design is grossly negligent What if it is done by a independent govt contractor who has a history of this? then under above rule would they be liable in some way GET GOVT LIABILITY FROM CLASS

Complying with all regulations to make your product does not absolve you from product liabilty

o if regulations require a label P may still bring a suit claiming that the design or labeling was inadequate and constituted a defect

o Labeling: If government requires that a substance be designed or labeled in a particular way, and the manufacturer follows that then P may still be able to being a product liability on the theory that the design or labeling was inadequate and constituted a defect.

Cases

o Knitz: A product is defective in design if it is more dangerous than a consumer would reasonably expect or the benefits of the design do not outweigh the risk.

o Norman: A claimant not only must meet the proof requirements of the statue but must who that a product was defectively designed so as to be unreasonably dangerous, taking into consideration the utility of the product and the risks involved in its use.

o McCarthy: A products defect is related to its condition, not its intrinsic function

- Duty to Warn Duty to warn is essentially an extra obligation placed on

manufacturer Manufacturing defect: is a product is defectively

manufactured no warning can save D from strict liability.o Physical departure from a products intended design. o Can occur even if there is nothing at all wrong with the

products designo Typically affect only a small percentage of a manufacturer

products in a particular product lineo A product contains a manufacturing defect when the product

departs from its intended design even though all possible care was exercised in the preparation and marketing of the product.

Design Defect: If this is the case then a warning will generally not shield D from strict product liability

Properly manufactured and designed product: D must nonetheless give a warning if there is a non-obvious risk of personal injury from using the product. Similarly, D may be liable for not giving instructions concerning correct use, if a reasonable consumer might misuse the product in a foreseeable way.

Consumer Expectation test: In effect imposes strict liability when the product was defective and unreasonably dangerous. it tested defect/unreasonable danger by asking whether the product was dangerous beyond the contemplation of the consumer.

o If the danger is truly obvious the product seldom be defective under the consumer expectation test since the consumer could not expect safety in the fact of obvious danger.

Risk-utility basis: Liability for failure to warn is usually based on a negligence like risk-utility analysis. A product will be deemed defective on account of inadequate instructions or warnings when the foreseeable risks of harm imposed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings...and the omission of the instructions or warnings renders the product not reasonably safe.

Unknown and unknowable dangers: If D can show that it neither knew nor in the exercise of reasonable care should have

known of a danger at the time of sale, most courts hold that there was no duty to warn of unknown danger

Danger to small number of people: If the manufacturer knows that the product will be dangerous to a small number of people, the need for a warning will usually turn on the magnitude of the danger; if the danger is great enough even a small number of potential bad results will require a warning.

Government labeling standards: The scope of D's duty to warn may be affected by the fact that the government imposes certain labeling requirements

Post-sale duty to warn: Courts have disagreed about the extent to which a manufacturer has a duty to make a post-sale warning about dangers of which the manufacturer was not aware at the time of manufacture.

o Duty to warn when manufacturer learns of the risk: Most common approach is to hold that if the manufacturer eventually learns about the risk it has an obligation to give a post-sale warning, assuming the risk is great and the user of the product can be identified. A duty to warn probably exists event though the defect was not knowable at the time of manufacture.

Warnings must be reasonably clear and of sufficient force and intensity to convey the nature and extent of the risk to a reasonable person

o Duty to monitor: Some courts have held that the manufacturer has a duty not only to warn about dangers or defects that it learns about but also an affirmative duty to keep abreast of the field by monitoring the performance and safety of its products after sale. Such an affirmative duty of monitoring and testing is most likely to be found in cases involving prescription drugs.

Obvious danger: If the danger is obvious to most people this will be a factor reducing D's obligation to warn. But where a warning could easily be given, and substantial minority of people might not otherwise know of the danger the court may nonetheless find a duty to warn.

Hidden causation issue: In any failure to warn situation, be sure to check that the requirement of a causal link between the failure to warn and the resulting injury is satisfied. if the provision of a warning would not have prevented the accident from occurring then the D will not be liable for failing to warn.

o P who does not read warning or ignores them: For example, in a case in which the injured P is the one who was the user of the product, and the claim is based upon the D manufacturer's failure to place a warning liable on the product, evidence that the P never read any warning labels would prevent failure to warn liability. Similarly, if there is evidence that even had P read the warning P would have ignored the warning and used the product is the same way

so that the accident would have happened anyway, failure tow ant will not be the basis for liability.

- Warning Defects

- needs to be a reasonable clear warning and of sufficient force and intensity to convey the nature and extend of th risk to a reasonable person pg 674

- warning to the intended consumer -sophisticated user: experts at using the product so dont need the

same detail warning- learned intermediary: many courts say that a manufacturer must

provide warning only to the doctor who might prescribe not only the patient in fact give appropriate warning or information to the physician it is said that the physician is a learned intermediary upon whom the manufacturer can properly rely and the warning can be couched in terms the physician can understand not necessarily terms the consumer would grasp

- Prescription Drugs: whether the harm the drug prevents is outweighed by the harm that it avoids. Risk utility almost always yes.

- basic standard when the product could produce foreseeable risk/harm could have been reduced or avoided with a warning

- does not eliminate there is a design defect. There can also be one warning that covers both design and warning defect

-policy for not putting warning everywhere is that they would lose their efficacy

Cases on Warning or Information Defectso Liriano: What kind of conduct is required to reach the usual

standard of care is a question of fact and therefore a question for the jury. Only warning that makes things better is required. Just becuase a danger is obvious then it does nto take away your duty to warn as an alternative.

o Lewis: P's state a claim for civil conspiracy where they allege an agreement and tortious conduct in furtherance of the agreement, even if they are unable to identify which of the D was the active tortfeasor. NOT ON EXAM

o Ruth v. pittaway- Who May be a D?

Chattels: In any case involving a good or chattel both strict and warranty liability will apply to any seller in the business of selling goods of that kind.

o Retailer: Retailer who sells the good but has not manufactured it will have strict liability as well as warranty liability, even if she could have done nothing to discover the defect. But this is true only if the seller is in the business of selling goods of that type.

Indemnity: If the retailer is held liable in this way she will be entitled to indemnity from the manufacturer or wholesaler as long as the retailer was not herself negligent

o Used goods: Courts are split as to whether there is strict or warranty liability for the seller of used goods. Probably most courts would hold that there is no such liability.

Lessor of goods: Courts sometimes impose strict liability here'o Negligence or warranty liability: may be liable for neg in

failing to discover the defect or on an implied warrant theory Sellers of real estate: only subject to strict and warranty liability so

if a dangerously defective only builder probably liable Services: One who sells services rather than goods doesnt fall within

the standard of strict liability nor UCC warranties. Unless a product is incorporated in service.

Remote purchaser and non-purchaser: Where P is suing not his own seller, but a remote person (the manufacturer) he will probably not recover anything if his only harm is an intangible economic one.

o Warranty: Most courts would deny an implied warranty claim on the grounds that P must sue his won immediate seller for such breaches

o Strict Liability: Almost all courts would deny recovery to the remote buyer for economic harm on a strict liability theory.

o Negligence: Most courts deny P recovery in negligence for pure intangible economic harm

o Non-purchaser: Same is true where P is not a purchaser at all ( P is a bystander) P probably cant recovery on any theory for his intangible economic loss.

o Combined: Remember that if P can show that he has received either physical injury or property damage, he may then be able to tack on his intangible economic harm as an additional element of damages. Definetly the case in a negligence action and possibly true in a strict liability or warranty action.

- Defenses Based on Plaintiff's Conduct: General rule of P negligence applies: Usually whatever JD standard

method of dealing with P negligence (if they apply contri/comparative) then that method applies to product-liability actions.

Differnet types of negligence by P: There are a number of different ways in which a P might behave negligently with respect to a product.

o Failure to discover the risk: P may fail to negligently discover that there is a defect at all. This not negligence because one is entitled to assume that is not defective.

o Knowing assumption of the risk: P may be aware of the product defectiveness but may decide to still assume the risk of that defect this will be treated as comparative negligence to the extent that Ps decision to use the product in the face of unknown risk was unreasonable it will cause P recovery to be reduced proportionately ( not necessarily an absolute bar)

o Use for unintended purpose: If P totally misuses the product, D will not be relieved from liability unless the misuse was so unforeseeable or unreasonable that either: (1) the misuse couldn't reasonably be warned against or designed against or (2) the misuse is found to be superseding.

- Defenses

- when is food defective?: If a reasonable customer doesn't expect the food to contain it and foreign natural doctrine (it its natural but not in the food. like crab cakes with shell under the customer expectation test there would have been liabilty

- if strict liability then it doesn't matter if its natural bc it still could have injured you??

- most jd go with consumer expectation- potential problem with consumer expectations when cusumer dont have a knowledge to form expectancy, bystanders

- when doesnt the consumer expectation test work?- when do manufacteror who are dealing with more experience user then you get another test where you do a risk outweighing the benefit relavative to the reg ppl getting injur an dproductivity going up

likelihod that product will cause injuryrestatement

not expecting perfection in product liability even if you have been careful and done alot of research then in neg context you have to spend more money to find more dangers so they say you dont have to research any that is not forseen but product libaility says pend alot of mney think of all the uses your product could be put to use to WHAT CASE WITH the ricky car door is good for the exam adn risk utility fo the designa nd still have to prove there is a reasonable alternative design Honda v. Norman.

policy leveldefenses as they apply to strict liabilty and product liability are diffpost sale warning with cars re statement ON EXAM statutory recalldefenses to strict products liability accepted and rejceted here contrib neg rejected herehow substantial is the modification and how easy is it to achievea mere disclaimer does not absolve you of tort libaility but can disclaim warranty liabilityno workers compensation but simply know the employee cant sue employer simply know the basis- Nuisance

Type of injury: Injury is the loss of any right that P has b virtue of being a member of the public or interference with his use or enjoyment of his land.

o 3 Mental States Intentional interference with P's rights Negligence Abnormally dangerous activity or other conduct giving

rise to strict liability Public Nuisance: Interference with a right common to the general

publico Need not be a crimeo Health hazardo Improper businesso Obstruction of a public area

o Must be an injury to the public at large Private Nuisance: Unreasonable interference with P's use and

enjoyment of his land in a substantial way (either negligent conduct, abnormally dangerous or intentional)

Types of situations o D knows that its conduct causes non-trespassory invasions and

knows it causes substantial and significant annoyance.o D knows only that her conduct causes a non-trespassory

invasion and does not know or believes the invasion is serious (burning leaves in the fall)

o D knows only that its conduct risks an invasion of P interest but does not know that any invasion is certain.

o D causes no physical invasion at all, even by microscopic particles.

Survivors Act ( prior to death)allows you to bring a claim on behalf of the deceasedcan recover for pain and suffering between life and time of death (lost

wages)allows you to sue D if D diesoly prob is when died quickly