overview of torts

7/22/2019 Overview of Torts

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TORTS: Intentional Torts Nutshell OutlineOVERVIEW OF INTENTIONAL TORTS (prima facie case): Battery/Assault/False Imprisonment/Trespass to

Land/Conversion/Trespass toChattel/IIED

BATTERY: D will be liable for Battery if he/she acts with intent to cause a harmful or offensive touching and such a touching results, (plaintiff interest inbeing free from harmful or offensive touchings)

a. Actual intent or desire to bring about such harmb. substantially certain that such harm will resultc. transferred intent (between five trespassory torts; modernly between assault &

battery.)

d. offensive intent or contact based on sensibilities of a reasonable person (v.

defendant subjective belief that neither intent nor touching was offensive).Absence of express or implied consent strong indicator of offensiveness.

e. touching can result from instrumentality; can result if touching occurs to

property attached to plaintiff (purse, clothing, etc.).f. P awareness at time of touching not required.

ASSAULT: D will be liable for Assault if he/she acts with the intent to cause apprehension of an imminent harmful or offensive touching and such

apprehension results, (plaintiff interest in being free from apprehension of harmful or offensive touchings)a. intent satisfied as in battery (three ways).

b. Apprehension must actually occur.c. Words alone rarely sufficient.

d. Must be an imminent (no delay) touching (stalking may not satisfy this element).e. Apparent ability enough (toy gun hypo).f. Fear of physical harm not required (apprehension of offensive touching enough)g. Conditional threats (may negate assault; "if you weren't my brother, I'd hit you",

but not if defendant has no right to impose, "your money or your life".)

FALSE IMPRISONMENT: D will be liable for False Imprisonment if he/she acts with the intent to confine the P within fixed boundaries and Psuffers such confinement, (plaintiff interest in not being confined)

a. Intent satisfied as above (three ways)b. must be from use of force, threat of force, or colorable legal authority (or duress

of goods).c. Exclusion is not confinement.d. Any period of time is sufficient (may affect damages).e. Safe escape actually known to P negates confinement element.

TRESPASS TO LAND: D will be liable forI/Landif he/she enters the land of another and the entry was intentional, (plaintiff interest inpossessory interest in land)

a. Actual intent, substantial certainty or transferred intent (as above).

b. no need to intend a trespass, merely to intend to enter land is sufficient (that turnsout to belong to another). Reasonable mistake no excuse.c. Refusal to leave also basis for trespass.d. Nominal damages enough. Liable for all harms following trespass (some states

limit).

e. Possessors and landowners (possessor's interest is being protected; landlord canbe liable for trespass against tenant).

CONVERSION: D will be liable for Conversion if he/she acts with intent to assert substantial control (dominion) over chattel belonging to P andsubstantially damages or deprives P of it.

a. theft, destruction, permanent deprivation (no intent to return).

b. Reasonable mistake no excuse (serial conversions).c. P recovers full value of property.d. Look to Restatement factors (extent of control/good faith/harm done/et al)e. no transferred intent since not one of original trespassory torts (use T/Chattels).

f. intent to steal not required.

TRESPASS TO CHATTEL: D will be liable for T/Chattel if he/she acts with intent to harm or interfere with property belonging to P and Psuffers temporary loss of use or some damage (but harm or loss of use not sufficient to amount to Conversion).

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS. D will be liable for IIED if he/she engages in extreme and outrageous conductintended to inflict severe emotional distress and such distress results, [generally not allowed until 1948, except for some old death notice or handlingdead body cases].

a. actual intent, substantial certainty or recklessness (not transferred intent).b. Beyond all bounds of decency/shocking the conscience of the community; insults

generally not sufficient absent aggravating circumstances (repetition; abuse ofauthority).

c. Severe emotional distress often results in physical manifestations (shock).d. Third party actions when family member present or otherwise foreseeable.


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Battery

Restatement (Second) Torts, Section 13

An actor is subject to liability to another for battery if

(a)he acts intending to cause a harmful or offensive contact with the person of theother...and

(b)a harmful or offensive contact with the person of the other directly or indirectlyresults.

Comment:

*** (c). . . If an act is done with the intention described in this Section, it is immaterial that the

actor is not inspired by any personal hostility to the other, or a desire to injure him. Thus the factthat the defendant who intentionally inflicts bodily harm upon another does so as a practical joke,

does not render him immune from liability so long as the other has not consented. This is true

although the actor erroneously believes that the other will regard it as a joke, or that the otherhas, in fact, consented to it. One who plays dangerous practical jokes on others takes the risk that

his victims may not appreciate the humor of his conduct and may not take it in good part. So too,

a surgeon who performs an operation upon a patient who has refused to submit to it is notrelieved from liability by the fact that he honestly and, indeed, justifiably believes that the

operation is necessary to save the patient's life. Indeed, the fact that medical testimony shows

that the patient would have died had the operation not been performed and that the operation has

effected a complete cure is not enough to relieve the physician from liability.

Definition of Offensive Contact:

Restatement (Second) Torts, Section 19

A bodily contact is offensive if it offends a reasonable sense of personal dignity.

***Comment:

In order that a contact be offensive to a reasonable sense of personal dignity, it must be onewhich would offend the ordinary person and as such one not unduly sensitive as to his personal

dignity. It must, therefore, be a contact which is unwarranted by the social usages prevalent at

the time and place at which it is inflicted.


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Definition of Assault

Restatement of the Law (Second) Torts, s 21

ASSAULT

(1)An actor is subject to liability to another for assault if:(a)he acts intending to cause a harmful or offensive contact with the person of the

other or a third person, or an imminent apprehension of such a contact, and

(b)the other is thereby put in such imminent apprehension.

*** Comment:

*** it is only necessary that his act should cause an apprehension of an immediate contact,whether harmful or merely offensive. It is not necessary that it should directly or indirectly cause

any tangible and material harm to the other. If, however, any such harm results to any legally

protected interest of the other as a legal consequence of the apprehension, the other may recoverdamages for such harm as part of the damages recoverable in the action brought for the assault.

An act is done with the intention of putting the other in apprehension of an immediate harmful

or offensive contact if it is done for the purpose of causing such an apprehension or withknowledge that, to a substantial certainty, such apprehension will result.

W. Blackstone, Commentaries

Vol. 3, p. 120(1790)

[A]ssault [is] an attempt to offer to beat another, without touching him: as if one lifts up his cane,

or his fist, in a threatening manner at another; or strikes at him, but misses him; this is an

assault, insultus, which Finch describes to be "an unlawful setting upon one's person." Thisalso is an inchoate violence, amounting considerably higher than bare threats; and therefore,

though no actual suffering is proved, yet the party injured may have redress by action of

trespass vi et armis; wherein he shall recover damages as compensation for the injury.


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Definition of IIED Restatement of the Law Second Torts 2d, s46

OUTRAGEOUS CONDUCT CAUSING SEVERE EMOTIONAL DISTRESS

(1) One who by extreme and outrageous conduct intentionally or recklessly causes severeemotional distress to another is subject to liability for such emotional distress, and if

bodily harm to the other results from it, for such bodily harm.

(2) Where such conduct is directed at a third person, the actor is subject to liability if heintentionally or recklessly causes severe emotional distress

(a) to a member of such person's immediate family who is present at the time,

whether or not such distress results in bodily harm, or

(b) to any other person who is present at the time, if such distress results in bodily

harm.***

Comment:***

b. *** emotional distress may be an element of damages in many cases where other

interests have been invaded, and tort liability has arisen apart from the emotional distress***.[Modernly, IIED is recognized as] a separate and distinct basis of tort liability, without the

presence of the elements necessary to any other tort, such as assault, battery, false imprisonment,

trespass to land, or the like. ***

d. Extreme and outrageous conduct.

The cases thus far decided have found liability only where the defendant's conduct has been

extreme and outrageous. It has not been enough that the defendant has acted with an intent whichis tortious or even criminal, or that he has intended to inflict emotional distress, or even that his

conduct has been characterized by "malice," or a degree of aggravation which would entitle the

plaintiff to punitive damages for another tort. Liability has been found only where the conducthas been so outrageous in character, and so extreme in degree, as to go beyond all possible

bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized

community. Generally, the case is one in which the recitation of the facts to an average memberof the community would arouse his resentment against the actor, and lead him to exclaim,

"Outrageous!"

The liability clearly does not extend to mere insults, indignities, threats, annoyances, pettyoppressions, or other trivialities. The rough edges of our society are still in need of a good deal of

filing down, and in the meantime plaintiffs must necessarily be expected and required to behardened to a certain amount of rough language, and to occasional acts that are definitelyinconsiderate and unkind. There is no occasion for the law to intervene in every case where some

one's feelings are hurt. There must still be freedom to.


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OVERVIEW OF NEGLIGENCE: DUTY AND BREACH ISSUES

DUTY: In the management of his or her person or property, Defendant owes a duty to

foreseeable plaintiffs.

What is the applicable standard of care? (a question of law for the court to decide.)

a. Reasonable Person Standard: party owes a duty to exercise reasonable care under thecircumstances: that level of care that a reasonable person would exercise under the same orsimilar circumstances.

i. emergency situations are treated as circumstances and do not change the standard of care("what would a reasonable person do under such an emergency circumstance?"),'emergency instructions' usually disfavored.

ii. extraordinarily dangerous activities: some courts impose a higher duty of care upon aparty engaged in such activities, stating that the party owes the 'highest duty of care' or

the 'utmost duty of care'. other courts stick to a 'reasonable person' standard, with the

activity taken into account as a circumstance that will affect the level of care taken ("whatwould a reasonable person do when engaged in such an extraordinarily dangerous

activity?"), for example, common carriers (given the significant risks involved) are oftensaid to have a duty to exercise the 'highest level of care' (see California Civil Code

section 2100).

iii. physical attributes: these are taken into account so that the duty is to exercise that level ofcare that a reasonable person with such a condition would exercise under the same or

similar circumstances, (for example, what would a reasonable person who was sight-

impaired do under the same or similar circumstances?).iv. mental condition: this factor generally is not taken into account, those with mental illness

or disability are required to conform to the 'reasonable person' standard even if theircondition prevents them from doing so. public policy arguments have supported this view

despite many challenges. Quirk: Restatement distinguishes between defendant or plaintiff

negligence. Mental illness of plaintiff not taken into account for purposes of contributory

negligence unless insane (insane plaintiff may have condition taken into account wheredefendant would not). See Fox v. CCSF (1975) 47 Cal.App.3d 164,169.

b. Child Standard of Care: Minors generally are not held to the 'adult' reasonable personstandard of care. Minors are held to a 'child' standard of care that requires them to exercise'that level of care that a reasonable child of the same age, experience, training, maturity,

education and intelligence would exercise under the same or similar circumstances". Unlike

the adult reasonable person standard, the child standard takes the subjective qualities of thechild into account. The old rules presumed very young children (under 7) were incapable of

any tortious conduct. Some courts still state that children of 'tender' years are incapable of

intentional torts or negligence.i. dangerous activity exception: all courts will impose the adult standard of care when

minors are engaged in dangerous activities that call for an adult standard. Most

commonly, children driving motorized vehicles (cars, trucks, motorcycles, snowmobiles,

jet skis, farm vehicles, etc.) or operating dangerous equipment will be held to the adultstandard of care. Courts have differed when confronted with minors engaged in hunting

or using fireworks.


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c. Negligence as a Matter of Law: Some conduct may be determined by the court to constitutenegligence as a matter of law. when a court determines that the conduct is indisputablynegligent), the judge decides what a reasonable person (or child) would do under similar

circumstances. This becomes the 'standard of care'. Since this would take issue away from

jury, and many factors may impact decision, most courts are hesitant to make such

determinations, in the absence of an applicable statute, unless no reasonable jury coulddecide otherwise.

i. conduct: even in the absence of a statute, the court determines what a reasonable personwould do under the same or similar circumstances, failing to conform to such conductwill result in breach, or negligence as a matter of law. conduct must be indisputably

below what a reasonable person would do. something upon which no reasonable jury

could disagree, (ex.: starting a charcoal bbq indoors; in other words, a reasonable personwould not do so.)

ii. statutes: often, the legislature or other branch of government has determined what areasonable person would do under similar circumstances. Statutes, regulations,

ordinances, may be used as the standard of care if applicable to the plaintiffs harm, even

if the statute doesn't specifically provide for a tort remedy, in order to determine if astatute can be used as the standard of care (a violation of which will result in a finding of

breach), a two pronged test is used:a. Class of Persons: Is the plaintiff within the class of persons the statute was

designed to protect?

b. Type of Harm: Did the plaintiff suffer the type of harm the statute was designedto prevent?

Further, the statute must clearly identify the prohibited conduct. If applicable, and if violated bythe party, the statute will be used as the standard of care, the violation of which would constitute

a breach of duty. Note that failure to comply with a statute may be excused under somecircumstances, provided a reasonable person would not be able to comply or would choose not to

comply under similar circumstances (where it would be safer not to comply, for example).

Generally, licensing statutes are not used as the standard of care since they serve anadministrative function and often fail to help evaluate the party's conduct on a given occasion.

Also remember that violation of an applicable statute results in a finding of negligence (a breachof a duty) or a presumption of negligence, not merely evidence of negligence (which a jury

might disregard).

d. Special Duties (covered in Spring Semester):

i. common carriersii. ultrahazardous activities

iii. landowners

iv. professionals

v. negligent infliction of emotional distressvi. nonfeasance

vii. duty to protect/control third parties


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BREACH: Breach results in the failure to conform to the applicable standard of care. A breach

of a duty results in a finding of negligence. Causation and damages are still required before aprima facie case of negligence can be established,but a breach of a duty means that the party

was negligent. It is critical that specific conduct be identified that is claimed to be negligent.

Presumptions or inferences of negligence can be made only in the absence of actual knowledge

of how an accident or harm resulted. It is the plaintiffs burden of proof to establish this and allother elements of the negligence action.

a. reasonable person standard: the most common factors that are considered inevaluating a party's conduct under this standard of care are those identified in the

famous case of U.S. v. Carroll Towing:

i. the likelihood of harm resulting from the party's conduct;ii. the gravity of the harm resulting from the party's conduct; balanced

against:

iii. the burden on the party of reducing the risk of harm; andiv.

the social utility, if any, of the challenged conduct.

This is a classic 'cost/benefit' analysis which defines the economic school of thought, it has beencriticized for its use in cases of personal injury because of its economic approach to risks of harm

to human beings. Although jury instructions rarely use these factors, they are argued extensively

by attorneys in presenting their case as to "what a reasonable person would do under the same orsimilar circumstances". They are also used by courts in determining whether a party would be

considered negligent (or not negligent) as a matter of law.

b. negligence as a matter of law: breach is established in these cases when the party failsto conform to whatever conduct or statute has been determined to apply as thestandard of care. The only question for the jury is whether the party complied with the

judicially established standard of care, not whether the party exercised that level of

care that a reasonable person would exercise under similar circumstances.

c. res ipsa loquitur: this is an evidentiary doctrine that will allow an inference ofnegligence in some circumstances where it is not known by the plaintiff how an

injury or harm occurred. It is an inference of negligence that the jury can accept orreject (unlike negligence per se, which establishes negligence and cannot be rejected

by a jury absent excuse or justification), in order for there to be an inference of

negligence from the happening of an accident, the following three prongs must bemet:

i. was the event one which ordinarily would not occur in the absenceof negligence?

ii. was the instrumentality which caused the harm in the exclusivecontrol or within the responsibility of the defendant at the time of

the alleged negligence?

iii. did the plaintiff contribute to the creation of the injury causingevent? If these elements are met, the plaintiff is entitled to an

inference of negligence.


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d. custom: generally, customary practices of an industry are admissible on the issue ofbreach, but are not determinative. In other words, compliance with industry custom

does not preclude a finding of negligence. Further, failure to comply with customary

practice does not mandate a finding of negligence. For example, an entire industry

may be acting negligently by following a particular custom or practice, (such'customary practices' are determinative, however, in professional malpractice cases.)

CAUSATION IN TORT LAW

Introduction: Some commentators and courts discuss all causation issues under the term "Proximate

Cause". This still requires the initial inquiry of whether the negligence is a "Cause-in-fact" of theharm. We will follow the casebook approach, which treats each causation issue as a separate

element. Of course, both are required in order to find liability. It will keep our analysis more

organized to treat these elements distinctly.

I. CAUSE IN FACT:The party's negligent conduct must be a Cause in Fact of the injured party's specific harm. This

establishes a causal connection between the negligence and the harm. It does not, in itself, establishliability, since proximate cause is also required.

BUT FOR TEST: The most common test used to establish Cause in Fact is this test (sometimesreferred to as the 'sine quo non' test.) It simply establishes that the party's harm would not have

occurred if the other party was not negligent. In other words, the negligence is a 'Cause in Fact' of the

harm if the harm would not have occurred had the party not been negligent. "But for the party'snegligence, the other party would not have been harmed because..."

SUBSTANTIAL FACTOR TEST: Courts will turn to this test when the 'But For' test would

exonerate a responsible party or otherwise ignore a significant cause of plaintiff s harm. This arises

primarily when there are two or more negligent causes acting concurrently to create an indivisible

injury (the two oil spills combining in plaintiffs lake to kill fish). Using the "But For" test wouldexonerate both culpable parties. The alternative test asks whether the party's negligence was "a

substantial factor in bringing about the harm". Certainly, if the harm wouldn't have occurred but for

the negligence, it is a substantial factor. However, even when the harm would have occurred becauseof another concurrent cause, the party's negligence will be a substantial factor if it did play a role in

bringing about the harm (even in combination with the other causes).

Note that a case involving multiple causes does not dictate the substantial factor test unless there is an

indivisible harm. The But For Test can work well with multiple causes, either concurrent or

sequential.

A minority of courts (such as California) now use the Substantial Factor test for all cause-in-fact

issues. ' Therefore, you should discuss both tests when addressing Cause in Fact.

1 Some states, such as California, have abandoned the "But For" test of causation and will find proximate cause if the negligence is a 'substantial factor' in bringing aboutthe harm (provided the type of harm is foreseeable and further proximate cause analysis is not needed). Thus, it appears that such states are using the 'cause-in-fact'

analysis to establish proximate cause. They are simply demonstrating that proximate cause will be found if the negligence is the 'cause-in-fact' of the harm and that nointervening acts (or other policy issues) interfere with a finding of proximate cause.


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Joint and Several Liability: The general rule holds that joint tortfeasors are jointly and severallyliable for plaintiffs indivisible harm. This allows plaintiff to recover all damages from either

defendant. Modernly, many states have followed California in abolishing Joint and Several liabilityfor general (non-economic) damages when the harm can be apportioned between tortfeasors basedon their respective fault (even in cases of indivisible harms).

NOTE: Cause in Fact is often very clear. Modernly, however, especially in medical malpracticeand toxic tort cases, this element can be difficult to prove. See Lord v. Lovett 146 N.H. 232 (2001),for a good discussion of the various approaches used in malpractice cases where the plaintiff claimsthe loss or reduction in the chance of survival (ex: plaintiff would have had a 40% of survival haddefendant discovered cancer, now has less than 10% chance to survive). Although most courts allowrecovery for some form of this 'loss of opportunity', California does not; see Dumas v. Cooney, 235CA3d 1593 (1991).

EXCEPTIONS: Summers v. Tice shows an exception to the traditional rule about the burden ofproof in causation. The burden in causation will be shifted to negligent defendants even though onlyone of them actually caused the harm when plaintiff is not in a position to discover who actuallycaused the harm. Note that this alternative approach only applies when both or all defendants arenegligent and it is established that at least one of them actually caused the harm.

Another exception emerged in a Res Ipsa setting. Again, a plaintiff was unable to establish which

defendant caused her harm while she was unconscious in an operating room. The court in Ybarra v.Spangard was willing to hold all medical professionals in the operating room liable even though not

all were negligent (in order to counter the common 'code of silence'). Certainly, facing this shift in

the burden of proof, nonculpable defendants are now more likely to try to exonerate themselves by

explaining what actually happened.

Finally, a unique approach to causation was established in Sindell v. Abbott Laboratories, where it

was impossible to establish which one of 267 drug manufacturers provided the particular generic drugingested by plaintiff (DBS litigation). The California Supreme Court adopted a 'market share theory'

where each company would be liable to plaintiff in proportion to their percentage of the market share

of that drug without proof that the specific dosage of the drug taken by plaintiff came directly fromtheir company (impossible to prove).


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II. PROXIMATE CAUSE

INTRODUCTION: Proximate cause may very well be the most confusing area of modern tort law.It helps to understand it as a policy determination based on several factors. The most prominent

factor is foreseeability, but it is not always determinative. Modernly, most courts have adopted a formof the 'scope of risks' approach to determine if the plaintiffs harm, however caused, was within thescope of risks created by the negligent conduct. Public policy considerations may still compeldiffering results or courts may avoid proximate cause analysis altogether by denying recovery under

duty.

General rules: The modern view of proximate cause finds liability for those types of harm orconsequences that were a reasonably foreseeable result of the negligence (reflecting the olderWagonmoundview where defendant would be liable only for those types of harms that were foreseeable).

An older view, now a minority view, held that a negligent defendant would be the proximate

cause of all harms directly caused, whether or not they were foreseeable (Polemis).

In personal injury cases, however, most courts hold that a defendant will be liable for all harms

directly caused if some physical harm was foreseeable, whether or not the full extent or type of theharm was foreseeable. In other words, if defendant's negligent conduct directly caused a broken armthat developed unforeseeably into a life-threatening condition, defendant's negligence will still beconsidered a proximate cause of all harm, even if most plaintiffs would suffer only a bruise.

It is, therefore, critical to determine if plaintiff suffered the type of harm that was a foreseeableconsequence of the defendant's particular negligence.

INTERVENING ACTS: Sometimes, plaintiff will suffer additional harms following defendant'soriginal negligence. These harms are often the result of subsequent acts or forces (rescuer conduct,medical malpractice, or a second accident, for example). A foreseeable intervening act generally doesnot cut off the original defendant's liability. It is considered within the risks created by a defendantwho negligently harms the plaintiff.

Originally, all intervening criminal acts were considered superceding, thus relieving the originaldefendant of any liability, regardless of their foreseeability in any particular case. Modernly, mostcourts will find a defendant liable for foreseeable intervening criminal acts, but only under specificcircumstances as part of a duty analysis.

Generally, defendant's negligence will not be the proximate cause of harms suffered from an

unforeseeable intervening act arising after the original negligence. Such an act is considered to be'superceding', thereby cutting off defendant's liability at that point [of course, the actor causing the

intervening act, if acting tortiously, may be liable, but the original defendant's liability will be cut

off].

An exception to the general rule exists when the resulting harm is foreseeable, even though theintervening act was not. In such cases, the defendant will not be relieved of liability since the


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plaintiff suffered exactly the type of harm that was a foreseeable consequence of the negligent

conduct. The manner in which the harm was brought about, or the extent of harm ('thin-skulled'plaintiff rule) need not be foreseeable provided the type of harm was foreseeable. [The only

exception to this rule is in the case of an unforeseeable criminal intervening act, which is always

superceding.]

Approach to Proximate Cause issues: The first question could be whether or not plaintiff suffered the

TYPE OF HARM that was a foreseeable result of defendant's negligence. In other words, was the

risk of this type of harm one of the reasons the defendant's conduct was considered negligent?

For example, if the defendant was driving negligently, the risk of harm is that other motorists,passengers, pedestrians, or property owners in the vicinity might suffer harm, either physical harm orproperty damage. If the defendant's negligence causes that type of harm, it will be considered theproximate cause of such harm. This holds whether or not the manner in which the harm was broughtabout was foreseeable.

But if the plaintiff suffered harm that was not within the risk created by the defendant's negligence,

most courts would limit liability by saying that the negligence was NOT the proximate cause of thatparticular harm.

Be careful when using the foreseeability test. It does not require that a particular harm be one thatwas likely to occur. It only requires that the harm be of the type that might occur, or whoselikelihood was increased by the defendant's negligence. In other words, to be foreseeable, in someways, means that it was NOT unforeseeable. For example, we don't normally expect medicalmalpractice when we get treated. But it is a RISK of getting treated; it is NOT unforeseeable.Therefore, medical malpractice is most often considered a foreseeable intervening act if thedefendant's negligence caused plaintiff to obtain medical care (as when the defendant acts in a way torisk physical harm to plaintiff). On the other hand, it would not be considered foreseeable, generally,

to be violently assaulted while waiting for emergency treatment in a hospital.

Directly caused harm v. indirectly caused harm: It can be helpful to determine whether or not theparticular harm suffered by the plaintiff was directly or indirectly caused. If the harm was indirectly

caused, you need to analyze whether or not the intervening act(s) was foreseeable. Generally, if theintervening act was foreseeable, proximate cause is not broken. If it was unforeseeable, proximatecause will be cut off at that point, subject to the exception about foreseeable resulting harm.

Example: In Bernier v. Boston Edison, the defendant was negligent by designing light poles that felltoo easily upon contact. It was foreseeable that cars might hit the poles in accidents and cause themto fall on other motorists or pedestrians. So, the intervening act of someone accidentally running into

the poles would NOT cut off liability. But suppose the poles fell from an unforeseeable cause; say acow that had escaped a farm from miles away. The cow bumps into the pole and it falls on apedestrian. Is Boston Edison off the hook? There was an unforeseeable intervening act that generallywould cut off liability. But here, the plaintiff suffered exactly the TYPE OF HARM that made the

defendant negligent in the first place. Therefore, proximate cause would NOT be cut off just becausethe MANNER OF HARM (the cow) was unforeseeable.


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WHERE DOES PALSGRAF FIT IN?

When Cardozo decided the Palsgraf case in the 1920s, the older Polemis view of proximate cause

prevailed. That meant that the defendant's negligence would be the proximate cause of all harmsdirectly caused to Helen Palsgraf, whether foreseeable or not. Cardozo bypassed the proximate causeissue and went back to DUTY and BREACH. He decided that there was NO DUTY to a plaintiff whowas not foreseeable. That is, the defendant owed a duty of reasonable care only to those within aforeseeable zone of danger created by his or her negligence. Under that approach, Palsgraf wasoutside the zone of danger, defendant's negligence didn't pose any foreseeable risk to her, andtherefore, under Cardozo's view, no duty was owed to her or that there was no negligence as to her.

It was a brilliant move by Cardozo in many ways. The analysis became a question of law for thejudge (duty), not question of fact for a jury (breach). A judge could now limit the liability of thedefendant under this analysis without the case going to a jury. Analytically, it incorporated modemproximate cause factors (around foreseeability) into the duty analysis. For that reason, the case isalways included with the proximate cause materials. It really speaks to identifying the 'type of harm'that plaintiff suffered and relieving the defendant of liability if plaintiff suffers an unforeseeableharm, one that the defendant could not foresee and therefore would not be on guard to prevent.

The minority view in Palsgraf, authored by Justice Andrews, holds that the limitation on duty

pronounced by Cardozo was not warranted. Andrews argues that a negligent defendant owes a duty'to the world', not just those within a foreseeable zone of danger. Andrews reasons that if a defendantis negligent, it means that some harm to someone is foreseeable. Andrews sees no reason to limit the

scope of liability of a defendant who has risked harm to someone. This view, adopted by manycourts, would not limit the class of plaintiffs to whom a duty is owed, as does the Cardozo view.

For our purposes, the Palsgraf opinion means that you have a new issue to cover under DUTY,provided no special duties apply (which take precedent). Was the plaintiff foreseeable? In otherwords, was the plaintiff within the zone of danger created by defendant's negligence? If so, a dutywas owed. If not, no duty was owed under the Cardozo view and the defendant wins. Under theAndrews view a duty would be owed to all plaintiffs, whether or not they were considered foreseeable.

Struggling with causation is expected. The more you read about it, the more confused you maybecome.


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OVERVIEW OF DEFENSES AND PRIVILEGES TO INTENTIONAL TORTS

1) SELF-DEFENSE: One may use force, or threat of force, or imprisonment, in self-defense if thereis:

a)

a reasonably apparent need for such force, andb) the force, threat, or imprisonment is reasonable in degree and responsive to the apparentthreat.

c) Retreat not required to avoid deadly force (maj)d) Provocation not sufficient

2) DEFENSE OF OTHERS: One may defend third persons from attack to the extent one maydefend him or herself (reasonably apparent need applies). Old rule required defendant to be right,even if making a reasonable mistake, and could only intervene on behalf of family or employees

privileged to defend themselves.

3)

ARREST & DETENTION: A private person cannot arrest or detain another unless:

a) defendant witnessed a felony; orb) defendant had probable cause to believe that the plaintiff committed a felony and one was

actually committed; or

c) defendant witnessed plaintiff committing a misdemeanor amounting to a breach of the peace(personal injury/vandalism).

EXCEPTION: Shopkeepers Privilege (Restatement view): Defendant can detain plaintiff

believed to have taken property if:

a) reasonable belief that plaintiff took property wrongfully; andb) detention conducted in a reasonable manner; andc) detention conducted for a reasonable time.

Original shopkeeper's privilege under the common law allowed shopowner to detain plaintiff,but shopowner had to be right (recapture of chattel standard).

POLICE ARRESTS & DETENTIONS: Even if wrong, police are privileged to arrest

provided they have 'probable cause' or are acting on a warrant that is 'fair on its face'. Lookto criminal procedure for constitutional requirements for detentions and interpretations of

'probable cause'. No privilege to resist an unlawful arrest (but may be privileged to resist

excessive force.

4) DEFENSE OF PROPERTY: Defendant can use reasonable non-deadly force to defendproperty. Can use reasonable non-deadly force to recapture chattel only if in hot pursuit. Requestto vacate property may not be needed iffutile.


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TEMPLATE FOR NEGLIGENCE ANSWERS

(FALL SEMESTER)

DUTY: Does D owe P a duty? Was [name] a foreseeable P within the zone of danger created by

D's negligence? DISCUSS.

Standard of Care: Generally, D will owe a duty of reasonable care [look for issues re: child

standard; common carrier; abnormally dangerous activity; mental illness; physical condition;emergency].

Negligence Per Se (if statute/ordinance/regulation mentioned in facts): P will arguethat the statute/ordinance/regulation should be used as the standard of care, a violation

resulting in a finding of negligence per se (unless noncompliance is excused).

1)was P within the class of persons the statute was designed to protect?2)did P suffer the type of harm the statute was designed to protect?DISCUSS (note: licensing statutes rarely apply since they do not identify conduct at

issue).

BREACH: If statute applies, violation results in negligence per se (unless excused). If statute

does not apply, identify specific conduct that plaintiff will claim is negligent:

"Plaintiff will argue that Defendant was negligent when he/she [explain specific

conduct]." Analyze/discuss conduct using RISK/UTILITY factors:

"[The conduct] created a risk/increased risk of [identify risks created by conduct, from

minor risks to major risks of harm]. It was/was not foreseeable that such risks would arise/be

created because [explain facts pertaining to foreseeability/likelihood of harm].

"The burden on defendant to reduce/eliminate the risk of harm was

[significant/minimal] because she/he would have to [explain cost/effort required toreduce/eliminate risk of harm].

"Further, the defendant will argue (if applicable) that the challenged conduct had social utility in

that it [explain social utility of challenged conduct]."


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IF NO FACTS EXPLAIN HOW ACCIDENT MAY HAVE OCCURRED:

"The facts do not explain why the accident occurred or how defendant may have been

negligent in causing the accident. Plaintiff will try to use the doctrine of Res Ipsa Loquitor toestablish an inference of negligence from the happening of the event.

a) was the accident one that ordinarily would not occur in the absence ofnegligence? [discuss fully with explanation of likely causes of accident;

negligence needn't be the only possible cause, just the most likely cause].

b) was defendant in exclusive control of the instrumentality at the time of theaccident or at the time of the alleged negligence? DISCUSS.

c) did plaintiff contribute to causing the injury producing event? DISCUSS.

CAUSATION:

Cause-in-fact: "But for the negligence of defendant in [explain negligent conduct]

plaintiff would not have been harmed because [explain how injury/harm would not haveoccurred].

"Was defendant's negligence a substantial factor in bringing about plaintiffs

harm?" (use when concurring causes create indivisible injury).

Proximate Cause: "Did plaintiff suffer the type of harm that was within the scope ofrisks created by defendant's negligent conduct?"

"By [describe defendant's negligent conduct], defendant created the risk that [describe

risk/risks created by the conduct]. Plaintiff suffered/did not suffer any of the risks created bydefendant's conduct."

IF INTERVENING ACTS: Generally, an unforeseeable intervening act cuts off proximate causeand is considered superseding. Here, the [describe the intervening act] appears to be

[foreseeable/unforeseeable] because [explain].

Caveat: There is an exception to this general rule: an unforeseeable intervening act will not

be considered superseding if the resulting harm is still within the scope of risks created by the

defendant's negligence (with exception of unforeseeable intervening criminal acts).

DAMAGES: Defendant will be liable for all harms proximately caused by defendant's negligence.


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TORTS REVIEW SESSION FALL 2011INTENTIONAL TORTS:

Prima Facie Tort:BatteryAssault

False ImprisonmentIntentional Infliction of Emotional Distress

Trespass to LandTrespass to Chattel

Conversion

Liability of Parents

Liability of Children

Liability of Mentally Ill

Defenses to Intentional Torts:

Self DefenseDefense of OthersDefense of Property Recapture of ChattelArrest & DetentionShopkeeper's PrivilegeNecessity (Public/Private)ConsentDiscipline

NEGLIGENCE DUTY:

Does D owe a duty to P?

(Cardozo foreseeable plaintiff rule from Palsgraf: was P within the zone of danger created by D's

negligence?; Andrews finds duty to all)

What is the Standard of Care?

Reasonable Person Standard Child Standard of Care Negligence Per Se (two-prong test) excuse fornoncompliance or rebuttable presumption of negligence

BREACH:

What is the conduct alleged to be negligent? If facts have some explanation as to 'why' theaccident occurred, analyze the conduct using Risk/Utility factors.

Res Ipsa Loquitor: only if there's not a complete explanation as to how and why the accidentoccurred. Three prongs. Inference of negligence only. Explain doctrine before using.

Violation of applicable

statute = breach (neg per se).


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CAUSE IN FACT:But For TestSubstantial Factor Test

Alternative Liability

(Summers v. Tice)

PROXIMATE CAUSE:

Did P suffer a foreseeable type of harm within the scope of risks created by D's negligence (scope ofrisks rule)?

Manner harm came about or extent of harm need not be foreseeable.

Any intervening acts? Foreseeable intervening acts generally won't cut off proximate cause.Unforeseeable intervening acts generally DO cut off liability UNLESS the resulting type of harm wasforeseeable. Caveat: unforeseeable intervening criminal acts always cut off liability.DAMAGES: P can recover compensatory damages proximately caused by D's negligence. Actualharm must be proven, nominal damages not awarded.

DEFENSES: Contributory Negligence:

Did P fail to exercise reasonable care for her own safety (or did she violate an applicable statute)?Analyze using Risk/Utility factors (as with any other breach). IF negligent, old C/L would barrecovery unless Last Clear Chance allowed P to recover (D had last clear chance to avoid harm tohelpless P).

Modern comparative fault principles reduce recovery in proportion to fault (modified form preventsrecovery if P negligence greater than that of D).

Assumption of Risk:

Express A/R: enforceable if not against public policy (workplace; mass transit; medical care) andlanguage is clear and unambiguous. Often allowed in recreational activities (skydiving). Sometimesarises as duty issue when employee specific duty is to confront danger.

Implied A/R: did D knowingly and voluntarily confront a specific risk? Needs to be full knowledge

of magnitude of risk and purely voluntary. Ex: voluntarily sitting in openly exposed area of hockeyarena where pucks could fly into seating area. Modernly, in comparative fault states, most implied

A/R treated as contributory negligence to reduce, but not bar recovery.

Watch for activity that abrogates duty to plaintiff (required to face danger in employment; recreationalactivity under Knight v. Jewett)


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Defenses

1. Defense of selfa. One is privileged to use force or the threat of force if there is a reasonably

apparent imminent need and the force used is reasonable.

i.

Under the majority view, retreat is not required.1. Defense of othersa. One is privileged to defend others to the extent one is privileged to defend

oneself.i. Traditionally the privilege only extended to family and employees but

modernly extends to others. Also, the one being defended had to be

privileged but modernly if they believe and force is reasonable It'sprivileged.

1. Defense of propertya. One is privileged to use reasonable force or threat of force in the defense of ones

property if a request would be futile but the use of deadly force merely for the

protection of property is never privileged.1. Defense (recapture) of chattela. One may use reasonable force in the defense or recapture of chattel when in hot

pursuit but one responsibility for mistakes and damages.

i. Shop keepers have the additional privilege for reasonable mistakes so longas the belief, method of detention and time of detention was reasonable.

1. Arrest and Detentiona. A private citizen is not privileged to arrest another unless he witnesses a

dangerous felony, has probably cause a felony was committed; and one was, orwitnessed a misdemeanor that amounts to the breach of the peace.

i. Law enforcement is privileged under any warrant issued that is fair on it'sface even though it may have been issued in error.

1. Consenta. Consent is permission which may be expressed or implied but may be invalidated

by capacity (age, mental state and illegality), duress, fraud or scope.i. There is a jurisdictional split for mutual combat unless an actor was a

protected class of persons such as a person not of the age of consent.

1. Disciplinea. A parent has the privilege to discipline a child.

1. Necessitya. One is privileged to cause a lesser harm when avoiding a imminent public disaster

and privileged to trespass or interfere with chattel when its a private necessity.

However, one is liable for damages when a harm is caused out of private

necessity.


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TEMPLATE FOR NEGLIGENCE ANSWERS

(FALL SEMESTER)

DUTY: Does D owe P a duty? Was [name] a foreseeable P within the zone of danger created by

D's negligence? DISCUSS.

Standard of Care: Generally, D will owe a duty of reasonable care [look for issues re: child

standard; common carrier; abnormally dangerous activity; mental illness; physical condition;

emergency].

Negligence Per Se (if statute/ordinance/regulation mentioned in facts): P will argue

that the statute/ordinance/regulation should be used as the standard of care, a violationresulting in a finding of negligence per se (unless noncompliance is excused).

1)was P within the class of persons the statute was designed to protect?2)

did P suffer the type of harm the statute was designed to protect?

DISCUSS (note: licensing statutes rarely apply since they do not identify conduct atissue).

BREACH: If statute applies, violation results in negligence per se (unless excused). If statutedoes not apply, identify specific conduct that plaintiff will claim is negligent:

"Plaintiff will argue that Defendant was negligent when he/she [explain specificconduct]." Analyze/discuss conduct using RISK/UTILITY factors:

"[The conduct] created a risk/increased risk of [identify risks created by conduct, from

minor risks to major risks of harm]. It was/was not foreseeable that such risks would arise/be

created because [explain facts pertaining to foreseeability/likelihood of harm].

"The burden on defendant to reduce/eliminate the risk of harm was

[significant/minimal] because she/he would have to [explain cost/effort required to

reduce/eliminate risk of harm].

"Further, the defendant will argue (if applicable) that the challenged conduct had social

utility in that it [explain social utility of challenged conduct]."


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IF NO FACTS EXPLAIN HOW ACCIDENT MAY HAVE OCCURRED:

"The facts do not explain why the accident occurred or how defendant may have been

negligent in causing the accident. Plaintiff will try to use the doctrine of Res Ipsa Loquitor to

establish an inference of negligence from the happening of the event.

a) was the accident one that ordinarily would not occur in the absence ofnegligence? [discuss fully with explanation of likely causes of accident;negligence needn't be the only possible cause, just the most likely cause].

b) was defendant in exclusive control of the instrumentality at the time of theaccident or at the time of the alleged negligence? DISCUSS.

c) did plaintiff contribute to causing the injury producing event? DISCUSS.

CAUSATION:

Cause-in-fact: "But for the negligence of defendant in [explain negligent conduct]

plaintiff would not have been harmed because [explain how injury/harm would not have

occurred].

"Was defendant's negligence a substantial factor in bringing about plaintiffs

harm?" (use when concurring causes create indivisible injury).

Proximate Cause: "Did plaintiff suffer the type of harm that was within the scope ofrisks created by defendant's negligent conduct?"

"By [describe defendant's negligent conduct], defendant created the risk that [describe

risk/risks created by the conduct]. Plaintiff suffered/did not suffer any of the risks created bydefendant's conduct."

IF INTERVENING ACTS: Generally, an unforeseeable intervening act cuts off proximate causeand is considered superseding. Here, the [describe the intervening act] appears to be

[foreseeable/unforeseeable] because [explain].

Caveat: There is an exception to this general rule: an unforeseeable intervening act will not

be considered superseding if the resulting harm is still within the scope of risks created by the

defendant's negligence (with exception of unforeseeable intervening criminal acts).

DAMAGES: Defendant will be liable for all harms proximately caused by defendant's negligence.


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SPECIAL DUTIES IN NEGLIGENCE

Generally, everyone is liable for harms caused by their negligence in the management of

their person or property (see California Civil Code section 1714 for an example of thisdoctrine). Courts will limit this duty by considering the following factors enunciated in Rowland v. Christian (1968):

a. foreseeability of harm to plaintiffb. degree of certainty that plaintiff suffered harmc. closeness of connection between defendant conduct and plaintiff harmd. moral blame attached to defendante. policy of preventing future harmf. burden to defendant by imposing dutyg. consequences to community by imposing dutyh. availability and cost of insurance

In other words, are there compelling policy reasons to limit or deny the duty owed toplaintiff?

I. COMMON CARRIERS: Most jurisdictions state that common carriers owea duty to exercise the utmost care for the safety of its passengers. Others point out that acommon carrier exercising merely reasonable care would still exercise a high level ofcare for the passenger safety, given the risks involved.

II. GUEST STATUTES: These were statutes passed by most states in the1920s and 1930s that sought to limit the duty owed to non-paying passengers in vehicles.Common carriers would owe a duty, but not someone giving a ride to another withoutgetting paid for the service. Legislatures claimed that allowing such actions wouldpromote fraud amongst acquaintances, but it also promoted fraud, by having parties claimthat it was a hired driver, no longer in existence.

III. EXTRAORDINARILY DANGEROUS ACTIVITIES: Many jurisdictionswill impose a duty to exercise the highest level of care on defendants engaged inextraordinarily dangerous activities, such as explosives or weapons. Again, some arguethat the reasonable person standard would reach the same result given the level of care

needed to meet the risks involved, (these activities may also be subject to strict liability)

IV. LAND POSSESSORS:

This doctrine applies to dangerous conditions on real property possessed orcontrolled by the defendant land possessor or occupier. The defendant need notbe the owner.

a. Common Law: Duty owed will be based on status of plaintiff.

1) no duty to trespassers (no permission or privilege)


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absent exception:a)known trespassers (actually known to D, not"should have known")b)habitual trespassers (not merely foreseeable, butvirtually guaranteed to be there based on past

experience)c)attractive nuisance (trespassing children; needno know all elements necessary to find a duty)

2)licensees (primarily social guests) owed a duty to bewarned of known, concealed dangers (some states, suchas California pre-1968, held no duty to licensees at all)

3) invitees (business visitors or those in building open topublic) duty to exercise reasonable care, except as toopen and obvious dangers.

b. Modern View (Rowland v. Christian):

duty of reasonable care owed to all who enter the landregardless of status of plaintiff, some jurisdictionsmaintain the 'no duty to trespassers' rule while eliminatingdistinction between licensees and invitees.

c. Lessors: Old Common Law: no duty to tenants or guests once property is

leased, except as to:

1) common areas2)promise to repair3)negligent repair4)concealment5)property open to public

Modernly: Duty to exercise reasonable care.

V. PROFESSIONALS

a. Duty to exercise that level of skill and expertise ordinarily possessed and

exercised by other professionals in good standing in the relevant community.

standard of care based on what is customary in the profession, originally,courts looked to other professionals in good standing in 'same or similar'community, modernly, courts moving to general or national standard,relies on expert testimony for breach and causation, res ipsa allowed(Ybarra v. Spangard for shifting burden of proof)-

b. Informed consent:physicians also are under a duty to inform patients of allmaterial risks associated with medical procedures. A negligence action based onlack of informed consent is established when the following elements are shown


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(encompassing duty, breach, causation, damages):1)m.d. fails to inform of a material risk (one that a reasonable patientwould consider significant in making a decision whether or not to goforward with the procedure)2)patient consents without being informed of the material risk3)patient would not have gone forward with procedure had risk beendisclosed4)reasonable patient in plaintiffs position would not have gone forward5)failure to disclose proximately causes harm

c. note: for attorneys, malpractice claim must establish that underlying lawsuitwas more likely than not to result in judgment at trial (not settlement probability).

VI. NONFEASANCE

No duty to take affirmative steps for safety of plaintiff absent:a) special circumstance (defendant creates peril or takes charge of plaintiff scare)b) special relationship: employer-employee

custodian-ward landowner-invitee innkeeper-guestcommon carrier-passenger

c) statutory duty: parents-guardians-childrenexpressly found in statute

d)contractual duty: babysitters; life guardse)public policy: parties in position of mutual dependence

(hiking together; out on boat, etc.)

note: police have no special relationship with individual members of publicabsent special circumstances, such as being in custody (Balestreri).

VII. DUTY TO PROTECT PLAINTIFF FROM THIRD PARTIES

Generally, no duty to protect plaintiff from third parties absent special

circumstance or relationship.

a. Landowner duty to protect against intervening criminal conduct:(originally, intervening criminal conduct considered superceding as a matter of

law; courts now adopt particular approach under duty in addressing these cases)

Modernly, defendant may not owe a duty to plaintiff to protect fromintervening criminal conduct, depending on approach adopted by court:

1)defendant knows of specific threat of harm to plaintiff (earliest view)2)history of prior similar incidents on property putting D on notice3)totality of circumstances points to foreseeability of such interveningacts; or4) balancing test: foreseeability of harm balanced against burden of taking

precautionary measures before duty owed (California and a few others).


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most common approach is either#2 or#3 above.

b. Defendant with special relationship to plaintiff will often owe a duty to protectif within ability control third party and danger is foreseeable.

c. Defendant with special relationship with source of harm (as in Tarasoff) butnot with plaintiff may still owe plaintiff a duty given foreseeability, ability tocontrol, and public policy reasons.

d. Liquor cases: generally, no duty to plaintiff harmed by customer or socialguest of defendant who assisted in getting person drunk, despite foreseeability ofsuch harm. Dram shop acts imposed liability, no longer in force, mostjurisdictions decline to find a duty, same with key-in-the-car cases. Public policyoverrides foreseeability.

e. negligent entrustment can be independent basis for liability: parent allowsdrunk child to drive or take possession of gun.

f. medical community duty to third parties (not patients) who may be harmed by

patient with contagious disease, often decided on public policy basis in absenceof special relationship between doctor and plaintiff.

VIII. NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

When does defendant owe a duty to protect plaintiff from suffering severeemotional distress when the defendant does NOT cause physical harm toplaintiff? (if defendant negligently causes a touching of plaintiff, plaintiff canrecover emotional distress/pain and suffering as part of damages).

A. Impact Rule. Required plaintiff to be physically impacted by defendant'snegligence, old rule, few jurisdictions modernly follow this.

exceptions which often may exist: a) negligently sent death messages

b) negligent handling of corpse

B. Zone of Danger Rule: Modern majority view.

Arises in two settings: when plaintiff is threatened with physical harm that causessevere emotional distress or when plaintiff is a bystander witnessing actual

physical harm negligently inflicted upon a closely related person.

i) direct victim cases: plaintiff is owed a duty ifa)plaintiff is in the zone of danger created by defendant'snegligence (plaintiff is at risk of suffering physical harm)b)plaintiff suffers severe emotional distress as a result ofdefendant's negligent conductc)plaintiff suffers such severe emotional distress that it results inphysical manifestations, such as shock.

these cases are typically 'near-miss' cases where plaintiff fears that


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he or she will be physically harmed, but no contact results. Aminority of jurisdictions allow this recovery in misdiagnosis cases,even though no physical harm has been threatened (Molien) and nozone of danger can be established.

ii) bystander cases:plaintiff is owed a duty ifa)plaintiff is in the zone of danger created by defendant'snegligence (plaintiff is at risk of suffering physical harm)b)plaintiffs severe emotional distress is caused as a result ofwitnessing physical harm negligently inflicted by defendant upon aclosely related person (usually required to be a legally recognizedrelationship such as legally married spouses or children);c)plaintiff suffers such severe emotional distress that it results inphysical manifestations, such as shock, (some jurisdictions, suchas California, no longer require proof of physical manifestations).

c. Minority View: Dillon v. Legg

a number of jurisdictions follow this 1968 California decision which does notrequire plaintiff to be in a zone of danger in bystander cases. The courtsfollowing this approach will analyze several factors to determine if it is fair toimpose a duty upon the defendant. The court will look to these factors:

a. proximity: was the plaintiff in close proximity to the underlyingvictim or was the plaintiff far away from the accident scene?

b. sensory and contemporaneous observance: did the plaintiff have asensory and contemporaneous observance of the underlying accident or did the

plaintiff hear about the accident from a third party. Did the plaintiff come uponthe scene of the accident in its immediate aftermath or did the plaintiff first seethe victim after treated by medical staff? Note: California has since tightenedthis factor by requiring the plaintiff to witness the underlying accident and beaware that the victim was then being harmed (Thing v. LaChusa).

c. close relation: did plaintiff have a close relationship with the victim orwere they strangers. Note: most courts require a legally recognized relationship,friends or intimates are not enough to find a duty.

IX. WRONGFUL DEATH

No common law action in England for wrongful death (either by intentional or negligentconduct). All actions died with decedent. All states enacted wrongful death and survivalstatutes identifying survivors who can recover and the measure of damages.

a. Survivial Statutes: If decedent had a legal claim while alive, either asdefendant or plaintiff, that claim "survives" the death as an asset or debt of the decedent'sestate. Action to be brought or defended by estate.


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b. Wrongful Death Statutes: Surviving family members (defined in the statute)are able to bring an action for the intentional or negligent killing of the decedent.Damages often limited to pecuniary measure ("loss to survivors" or "loss to estate"), butmany courts now allow "loss of consortium" or "loss of society" claims by survivingspouses, sometimes by surviving children. Recovery is for loss of positive aspects of

relationship, not for emotional distress or grief over loss of life.

X. PRENATAL HARMS and WRONGFUL BIRTH

A. Harm to Fetus: Generally, defendant will owe a duty to a fetus that is injuredduring pregnancy and is born alive, whether or not the injury occurred while the fetuswas 'viable' (capable of sustaining life outside the womb). Ex: negligently prescribeddrug causes chromosomal damage to mother a year before pregnancy; results in harm tofetus. Most courts would allow the action by harmed infant if born alive (would look torecovery under wrongful death if not born alive).

Wrongful death actions only allowed if fetus harmed while viable, whether stillborn or

initially born alive.

Generally, no action allowed if injury or harm occurred before fetus was viable and notborn alive.

B. Wrongful Conception/ Wrongful Birth: an action brought by parents whenmedical efforts to prevent conception negligently fail (negligently performed vasectomy,for example) or when mother deprived of legal right to abort fetus (misdiagnosis ingenetic counseling/amniocentesis, when purpose was to consider terminating thepregnancy, etc.).

Basically a medical malpractice action alleging that costs of raising child would not havebeen incurred if defendant had not been negligent. Courts open to awards for specialexpenses in raising child with special needs, but usually not for all expenses. Damagesother than special needs offset by benefits of having the child.

C. Wrongful Life: Occasionally, an action is brought in the infant's name claimingdamages for being born at all, asserting that it would have been better not to have beenborn. Courts have not granted these actions (other than to provide damages for parents topay for special needs of severely challenged infants).


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TORTS SPECIAL DUTIES OVERVIEW(and exam answer approaches)

1. LANDOWNER/OCCUPIER ISSUES.

C/L: Under the Common Law, the duty owed by landowners to protect entrants on theland from dangerous conditions was based on the status of the plaintiff. Here, defendantwould argue that plaintiff was a licensee/invitee/trespasser because ................. As alicensee/invitee/trespasser defendant would (not) owe a duty to a) warn about knownconcealed dangers; b) exercise reasonable care. I would conclude that plaintiff would beconsidered a licensee/invitee/trespasser because ...................... (don't forget aboutexceptions to 'no duty to trespasser' rule: known trespassers/attractive nuisance.

MODERNLY: Modemly, many jurisdictions have abandoned the common law approach

and provide that defendant owes all plaintiffs, whatever their status, a duty of reasonablecare. The status of the plaintiff is relevant, but not determinative of the standard of care.(Some jurisdictions following the modem view have eliminated the distinction betweenlicensee and invitee but still maintain a 'no duty' rule as to trespassers.)

2. PROFESSIONALS

Professionals such as the defendant owe the plaintiff a duty to exercise that level of carethat would be exercised by other professionals in good standing in the relevantcommunity. Courts will look to what is customary practice in the profession to establishthe standard of care. In addition, physicians owe patients a duty to disclose all materialrisks associated with a particular procedure or treatment. The majority view considersrisks material if they would be considered significant by a reasonable personcontemplating the procedure. The minority view would use the professional standard ofcare and determine what would be customary in the profession to disclose.

3. NONFEASANCE

The general rule is that defendants are under no duty to come to the aid of another absenta special relationship or circumstance. Here, plaintiff will argue that there was a specialrelationship (discuss) or special circumstance (discuss). Absent a special relationship orcircumstance, courts may consider public policy arguments particularly when defendantand plaintiff were in a relationship of mutual dependence. Here, .........

4. DUTY TO PROTECT PLAINTIFF FROM THIRD PERSONS (or duty to protect

third persons)

The general rule is that defendants are under no duty to come to the aid of another absenta special relationship or circumstance. Further, defendants are not under a duty to protectplaintiffs from third parties absent such a relationship or circumstance, foreseeability andability to intervene productively. Here, plaintiff will argue that .............


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5. NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

Under the majority view, defendant does not owe plaintiff a duty to protect her fromnegligently inflicted emotional distress absent an impact, unless the plaintiff was in thezone of danger resulting from defendant's negligent conduct. Further, plaintiff must

suffer severe emotional distress evidenced by physical manifestations, such as shock.

As a bystander suffering severe emotional distress as a result of witnessing the defendantnegligently cause serious physical harm to a loved one, the plaintiff must be in a closerelationship with the injured person and also be in the zone of danger.

Here, (discuss all facts pertaining to above elements) .............

Modemly, many jurisdictions follow Dillon v. Legg and no longer require plaintiff to bein the zone of danger. The court will, however, evaluate several factors to determine if aduty should be owed. First, the court will see if the plaintiff was in close proximity to thescene of the accident or was far away. The court will also determine if the plaintiff

suffered a contemporaneous observation of the injury or had heard about it from anothersource. Finally, the court will consider whether the plaintiff was in a close relationshipwith the victim or not.

Here, (take factors one at a time and use all relevant facts in analysis).


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KANIOS' CHEAT SHEET ON LAND OCCUPIER DUTIES

INTRODUCTION: we don't look to Palsgraf to see if the plaintiff owes a duty since thesespecial duty rules determine the issues of whether a duty is owed and, if so, what standard of

care applies.

COMMON LAW APPROACH: The duty owed by land occupiers (often, but not always,owners), if any, depended on the status of the plaintiff who entered upon the land. This duty onlyapplied to actions based on dangerous conditions on the land. Common injuries would be slipsfrom dangerous substances, things falling from ceilings, fires, swimming pools, collapsingstructures, vicious dogs, and other artificial conditions.

TRESPASSERS: those on the land of another without consent or privilege. Under theC/L, land occupiers owe NO DUTY in negligence to trespassers, (a "duty" would only exist toavoid intentional, willful, or wanton harm a trespasser, but that would give rise to an intentionaltort action, not a negligence action).

Exceptions: known trespassers: if the defendant actually knows of the presence of atrespasser, reasonable care must be taken to avoid harm. For example, if you see trespasserswalking in your field, you can't intentionally or negligently drive over them. But this onlyapplies to trespassers who you actually know are there, not to those who you "should" haveknown were there (D not liable for negligently failing to discover t/p).

habitual trespassers: not common modernly. This exception was often used for poorpeople hanging out near railroad tracks (the so-called 'hobos'). Conductors "knew" that somefolks always based themselves around a particular corner. Not just "foreseeable", but "known" toregularly be there.

Trespassing children: known as the 'attractive nuisance' doctrine. This exception applieswhen young trespassing children are attracted onto the land of another and there exists adangerous condition (children no longer need to be attracted by the condition).

a)the land occupier knows (or has reason to know) that children are likely totrespass and encounter the dangerous artificial condition;

b)the dangerous condition creates an unreasonable risk of serious harm or deathto the children;

c)the children are too young to fully appreciate the risk; andd)the risk is greater than the burden of preventing the harm or the social utility of

the condition.

In such a case, the land occupier owes a duty of reasonable care to the children and willbe in breach. The classic case here is a swimming pool or construction site.But remember: thisdoctrine only applies as an exception to the 'not duty to trespassers' rule under the common law.

It does not apply in modern 'Rowland v. Christian 'jurisdictions (unless the jurisdiction holdsonto the 'no duty to trespassers' rule).

LICENSEES: The most common license is a social guest. This person has consent to beon the premises, may be there for his or her own benefit (unsolicited door-to-door sales prior to


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the occupier agreeing to transact business), but does not rise to the level of an invitee. Althoughfire fighters or other rescue workers responding to an emergency will be treated as if they arelicensees (pre-existing duty type analogy), the classic licensee is the social guest. Difficultiesarise when 'business and pleasure' are combined, typically in work situations.

The land occupier owes a duty to licensees to warn of known, concealed dangers. That's it. There is NO DUTY to take affirmative steps. In other words, no duty to inspect orremedy. If the land occupier negligently fails to learn of a dangerous condition on the land, thereis no breach for that failure.

Note: some common law jurisdictions treat licensees and trespassers alike and affordplaintiffs no duty in negligence. California held this rule prior to Rowland (explaining why thetenant \vasn 't under a duty to warn the guest of the broken faucet).

INVITEES: Two types of invitees. Business guests or customers (or potentialcustomers) and visitors to buildings open to the public. The most common invitee is a customerat a department store, a guest at a hotel, a student at a school, a business person at a company, apatron at a bar, or a shopper at a grocery store. The public building invitee is a member of thecommunity visiting City Hall, going to a government office, a sightseer at a government building.These involve people visiting buildings that are open to the public

The land occupier owes a duty to invitees to exercise reasonable care. This duty is the highestduty owed and may involve taking affirmative steps (inspection, repair, warning), depending onthe circumstances. The only caveat is that, under the common law, there is a loophole for thoseconditions found to be 'open and obvious'. There is no warning required to licensees, and noduty to warn to invitees if the condition is an obvious one (one whose existence serves as it'sown warning), (this caveat is usually not present in the modern Rowland v. Christian view.)

MODERN VIEW: Many courts now have abandoned the common law approach and providethat a single duty is owed to all who come onto the land. That duty is simply to exercisereasonable care under the circumstances, the status of the plaintiff being one of thosecircumstances. This was the decision of Rowland v. Christian, a 1968 California Supreme Courtcase.

Note: all the above analyses would be made under the 'Duty' section of your answer. Youwould then continue your answer with the remaining elements of the negligence action (breach,causation, etc.). You may need to discuss how the case would develop under both the commonlaw and modern views in each of the remaining elements. For instance, there may not be abreach to a licensee if the dangerous condition wasn't known to the land occupier, but a duty mayhave been breached to that same plaintiff under the modern view of Rowland v. Christian.


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PRODUCTS LIABILITY CHEAT SHEET

[as with other cheat sheets, use at your own risk. These are pretty much 'off the top of my head' outlines

of major issues that arise in the field. they are generally reliable, but perhaps with some oversights.

feedback always appreciated. their main value is to get an overview of the topic. I encourage you to

develop your own notes, outlines, flash cards, or other materials to help become fluent with this doctrine.]

Introduction: Products Liability is an umbrella term to cover all possible actions that may be brought

when a product causes harm and a commercial supplier of the product is brought in as a defendant. Themajor theories of liability fall under Negligence, Warranty, and Strict Liability in Tort. Actions may also

be brought under Misrepresentation, Fraud, or statutes. This outline focuses on negligence, warranty and

strict liability in tort.

NEGLIGENCE: Privity requirements used to bar consumer actions against manufacturers of productssince most products were purchased from retailers, not directly from manufacturers. Modernly, privity is

no longer required. Duty is owed to consumers and foreseeable users/bystanders. Standard elements of

negligence are applied in a products setting.

Duty: Manufacturer or other commercial supplier owes a duty of reasonable care in all aspects ofproduct development (design, manufacture, assembly, inspection, testing, warning, instructions,

marketing, etc.). Retailers generally have no duty to inspect sealed goods (or goods without any signs of

disrepair) absent notice. Government regulations can result in negligence per se.

Breach: As in other negligence actions, plaintiff needs to identify the negligent conduct and

analyze under risk/utility factors. If there is a negligent design claim, plaintiff must show reasonable

alternative design (economically and technologically feasible). Res Ipsa permitted. Plaintiff may claim

defendant was negligent in more than one aspect of product development: manufacture, design,

inspection, warnings, etc.

Cause-in-fact: But for defendant's negligence (or substantial factor test), plaintiff would not

have been harmed. Be sure to identity exact harm suffered and reference it to the specific negligentconduct.

Proximate Cause: Did plaintiff suffer the type of harm that was within the scope of risks created

by defendant's negligence? Manner or extent of harm not controlling. Intervening acts do not cut off

liability if foreseeable or if resulting harm foreseeable (except for unforeseeable intervening criminal acts,

which do cut off liability even if result foreseeable). Unforeseeable misuse can be a superseding cause or

a defense under assumption of risk or contributory negligence.

Damages: Plaintiff entitled to compensatory damages.

Defenses: Contributory negligence (modernly applying comparative fault

principles) and Assumption of Risk (knowing, voluntary assumption of specific risk).

REMEMBER: this is a standard garden-variety negligence action that happens to involve

products. Very little variance from other negligence actions in elements to be proved (litigating products

cases, on the other hand, can be very challenging).

WARRANTY: Arising out of contract, breach of warranty can give rise to a tort action when

damage to product, person or other property. Recovery is more limited than with strict liability in tort.

For instance, UCC provisions dictate who can bring an action (most states follow Alternative A, only


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allowing the consumer and his or her family household and guests to bring action). Further, warranty

actions may have more restrictive statutes of limitation. Finally, disclaimers may be allowed in warranty

where such might be against public policy in strict liability in tort actions.

Express Warranty: Based on claim that plaintiff made an express representation that the

product possesses certain characteristics or performance ability. Does not apply to 'puffing' or

other nonfactual assertions ('this is the best there is'). Can be modified or disclaimed.

Implied Warranty of Merchantability: Prior to recognition of this warranty, caveat emptoroften applied. Arising from UCC 2-314, implies that every product is expected by an ordinary

consumer to be 'fit for its ordinary purpose'. Absent a disclaimer, applies to all new products

distributed by a commercial supplier. Is the product as fit for its intended use as an ordinary

consumer would expect?

Implied Warranty of Fitness for a Particular Purpose: Separate from warranty of

merchantability, this warranty relies on the commercial seller's skill and representation regarding

the fitness of a product for a particular purpose (which may not be within the ordinary purposes

for which the product was originally designed).

Once breach of warranty established, plaintiff proceeds to show causation and damages.

Defenses available include misuse and assumption of risk.

NOTE: Warranty may be the exclusive remedy for plaintiff when the plaintiff only suffers harm

to the product itself Strict liability in tort is available ONLY if the defective product causes personal

injuries or harm to other property. Stand alone economic loss (loss of business or income, for example)

cannot be recovered under Strict Liability in Tort absent personal injury or property damage (other than

the product itself).

STRICT LIABILITY IN TORT:

This is the legal theory which allows recovery for personal injuries and property damageproximately caused by defective products placed into the marketplace by commercial suppliers.

Introduction: With the fall of privity early in the 20th Century, negligence and breach of

warranty actions were the actions available to plaintiffs injured by products. Old strict liability recovery

(once common place within old writs of trespass) was overtaken by the so called 'triumph of negligence'

in the mid-nineteenth century, with only a few strict liability actions surviving (nuisance, abnormally

dangerous activities, trespassing livestock, etc.). It wasn't until the 1960's that strict liability in tort

emerged to respond to personal injuries and property damage claims caused by defective products placed

in the stream of commerce by commercial suppliers who could absorb the loss as a cost of doing business.

Greenman v. Yuba Power, a 1963 California Supreme Court case, heralded the arrival of this new theory

of recovery (Justice Traynor, who authored the Greenman majority opinion, had called for such recovery

some twenty years earlier in his concurring in Escola v. Coca-Cola).

A majority of states soon followed Greenman. The Restatement Second of Torts section 402A

(1964) quickly followed suit and strict liability for defective products was firmly established. In the

1980's, some retrenchment occurred, with increasing efforts to limit strict liability in products cases. By

1998, a new Products Liability Restatement (3rd) had adopted many of these limitations (requiring

negligence principles in design or warning cases). The new limitations, along with movements to cap

damages and plaintiff's attorneys fees, have received limited or mixed acceptance in the courts.


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Under the general theory of recovery for strict liability in tort, an injured plaintiff can recover

against a commercial supplier whose defective product proximately caused personal injury or property

damage. The plaintiff need not prove negligence. Recovery without a finding of fault has been justified

under public policy concerns when the defendant is a commercial supplier of products who can absorb the

cost of injury as a cost of doing business and who cannot prevent some defective products from entering

the market place even with the exercise of reasonable care. On the other hand, an injured plaintiff may

have a difficult time proving negligence and would otherwise have to bare the entire loss individually.

a. Parties: Defendant must be a commercial supplier of products, as opposed to aprovider of services. Blood banks, for instance, have been generally found to be

providers of services, thereby barring strict liability claims and requiring a finding of

negligence. Pharmacies have often primarily been considered providers of services as

opposed to products, despite the huge retail aspect of modem pharmacies. Although

the Restatement doesn't bar actions against sellers of used goods, most actions arebased on the distribution of new products since it is easier to establish that the defect

existed at the time it left the defendant's control (as opposed to the various

opportunities for alterations or modifications of a used product, such as 'reconditioned'

'refurbished'). Defendants can be any commercial supplier in the chain of commerce,

from manufacturers, assemblers, distributors, wholesalers, and retailers. Casual sellers(flea market sales) are generally not included. Plaintiff need not be in privity with the

defendant, but needs to be a foreseeable consumer, user, or bystander.

b. Defective Product: Was the product defective and unreasonably dangerous?The original Restatement (section 402A) required the product to be both defective and

unreasonably dangerous (California dropped the unreasonably dangerous requirement,

concerned it may introduce negligence concepts) when used in its intended manner.

Modernly, intended orreasonably foreseeable manner is sufficient (even if not an

intended use). Further, the defect must have existed at the time the product left the

defendant's hands. A product would be considered defective in one of three ways:

manufacturing defect, design defect, or defective based on an inadequate warning orinstructions. These categories are now clearly spelled out in the Restatement 3d.

i. Manufacturing defect: did the product depart from its intended design? Here, we

need a product that emerged from the defendant's hands in a condition that was not

intended. Safety features may be missing, parts may malfunction, a foreign substance

may be present in a food product, a piece of metal may have an unintended weak spot,

etc. Such defective products are considered 'unreasonably dangerous' if the defect

renders the product less safe than an ordinary consumer would expect. Would an

ordinary consumer expect to bite into a sharp piece of metal when eating a bowl of soup

that came from a can? Would an ordinary consumer expect to contract food poisoning

from an animal product such as chicken from a fast food restaurant? Would an ordinary

consumer expect to lose a finger from a power tool that failed to have a safety featureproperly installed? Res Ipsa can also apply. The Consumer Expectation Test remains

the sole test used to determine whether a manufacturing flaw renders a product

unreasonably dangerous for purposes of strict liability in tort.

ii. Design Defect: did the design of the product render it unreasonably dangerous and

therefore defective? Here, the product emerged from the defendant's hands exactly as

intended, but the plaintiff clai

overview of torts

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