Torts 1

Battery Intentional

o Acting with purpose to produce consequence, or acting in a way that the reasonable man would know consequence is substantially certain to occur. (Hidden intent is irrelevant) [VanCamp v. McFoos] [Garret v. Dailey]

Unconsented to o [Cohen v. Smith] Consent may be

actual (expressed) or implied (a manifestation on which a reasonable person could rely)

Harmful/Offensiveo To a reasonable sense of personal

dignity (obj. standard) [Snyder v. Turk]

Contact o Touching (can have extension of self

and Π, and it need not be immediate (poison or smoke) [Leichtman v. WLW]~light, sound

{also analyze difference between dual intent and single intent}[White v. Muniz] [Garret v. Dailey]

{also the concept of transferred intent, either the tort, the Π, or both} [Hall v. McBryde]{also, legal insanity is not a defense) [Polamiter v. Russ]{Also note Law of Sevens} [VanCamp v. McFoos]

Assault π is placed in apprehension

o 1) acting intending to commit battery 2)acting intending to put someone in imminent apprehension of battery [Cullison v. Medley] [Kaufmann v. Garnett---No apprehension]

o do not need fear, but MIND MUST BE TOUCHED

Apprehension is of an immediate batteryo *words alone lack immediacy, have to

be in conjunction with something else [Cullison v. Medley]

o You need actual conduct of a threatening kind

o With conditional words “If you were not my mother, I would….” Not usually enough. UNLESS they are forcing the party to choose between two tortuous alternatives “I will hit you or take you purse” Exception: When there is legal right, i.e. stolen property

False Imprisonment [McCann v. Walmart] Act of Restraint ***look at notes

o π must know of confinement OR be harmed by it. (Harm can be physical or economical)

o It has to be intentional (motive is not a consideration)

o Unconsented to (exclusion does not count)o Bounded area= no reasonable means of

escape.o Confinement need not be physical; can be

accomplished by implicit or explicit threats. (and any amount of time)

o Within limited area (not Taiwan)o Does not have lawful authority or restrains

with illusion to lawful authority [McCann v. Walmart]

Trespass to Land Physical Invasion

o 2 ways: (1) enter property; (2) extension of self

o Non-physical invasion ≠ trespass to land (ex. Light)

Of Lando Includes air above & soil below, to heavenso Never has to actually touch the groundo Is not a matter of ownership (a renter can

sue for trespass) Intent

o Only intent required is that ∆ get to the challenged location on purpose

o ∆ need not be aware that he is violating property rights.

o Sleepwalking ≠ intent ≠ trespass to lando Unintentional entry or invited entry is not

enough, but if there is a refusal to leave becomes trespass

Trespass to Chattels Interferes with π’s right of personal property

o Personal property= everything you own except real property

o (1) damaging or (2) stealing/taking- dispossession or lost use

o Remedy = $ for loss of use or cost of repair, based on actual damage, not market value

Conversion Interferes with π’s right of personal property, to

exercise SUBSTANTIAL DOMAINo Personal property= everything you own

except real propertyo Interferes = substantial damage or loss.

Remedy = get real market value of item Mistaken belief that you own the chattel is not a

defense. 3rd person can be liable Is a matter of degree between trespass and

conversion, these factors determine: 1. Extent, duration of control 2. Δ intent to assert a right to the property 3. Δ’s good faith 4. Harm done 5. Expense or inconvenience caused

Torts 2Civil Rights Torts

Under color of lawo A person with state or federal

authority, or appearance of authority (gov’t must make them have that appearance) [Brown v. Muhlenburg]

o Can be brought under Fed. Constitution or Fed. Statute violations.

Third Party Ruleo Can be private citizen conspiring with

state authorityo Can be an officer who fails to protect

citizen Rule, must have passed ‘test’ and must have had realistic opportunity to intervene

1) excessive force was being used 2) that a citizen had been unjustifiably arrested, or 3) that any constitutional violation had been committed [Yang v. Hardin]

(Note: 3 can be satisfied by 14th due process clause, 4ths unreasonable search/seizure [Brown v. Muhlenburg] 8th cruel and unusual punishment, and 1983 statute [Alexander v. DeAngelo]

Government Immunityo Shocks the conscious [Sacramento v.

Lewis]You can only sue the government if they allow you to [Alexander v. DeAngelo]

o Note on damages: Get attorneys fees if you win

Torts of Outrage

Restatement elements IIED:

a. Conduct of the defendant was extreme and outrageousb. Intended to cause severe distress or was reckless in risking severe distressc. Actually caused severe distress

[Nickerson v. Hodges] (gold diggers burry a fake pot of gold):One of the first cases to cite an IIED, but claimed malicious deception and conspiracy. Example of extreme conduct: Taylor v. Metzger (African-Am. Woman sheriff, called ‘jungle bunny’ was held to be beyond bounds of decency)Further in Nickerson the award was reduced because Π died (this would not happen in modern times)

Intentional Infliction of Emotional Distress Outrageous Conduct

o Outrageous= Exceeds all bounds of decency tolerated in a civilized society

o Mere insults ≠ not outrageouso Plus Factors: Hallmarks of

Outrageousness- (1) Continuous or Repetitive Conduct; (2) ∆ is a common carrier or Innkeeper; (3) π is a member of a fragile class of persons (i.e. children, elderly, pregnant woman.)

o It is outrageous if you exploit Severe Emotional Distress

o Severe= interferes with daily activities of life.

o Must be severe Intent

o Recklessness (in addition: purpose, desire, knowledge)

Defenses to Intentional Torts Self-Defense

1) Reasonable force to defend against tort 2)Reasonable deadly force only when the threat is at same extreme 3) No requirement to retreat 4) Any excessive force is unprivileged

Torts 35) That one was provoked is not enough to claim self defense 6) There is a right to resist unlawful arrest 7) One can use assault to forestall a crime, even when the battery it puts the other party in fear of would not be privileged

Defense of Others/Propertyo Timing: must be imminent or in

progress. (No revenge, if threat is over and done, timing is no good)

o Defense as 3rd person must be no more than if you were the person being attacked could use

o Reasonable belief that threat is genuineo *Deadly force only in life threatening

situation. For property, never can use deadly force. (Kato v. Briney shotgun trap) (Brown v. Martinez Boy shot for trespassing on watermelon field)

o One can use false imprisonment to defend property, put if person detained is not guilty then the detainer is liable (Great Atlantic v. Paul)And person must be held only as long as necessary

Consento Express- words permitting ∆ to

commit, but person must have capacity to give consent (Reavis v. Slominski a)incapacity has to be substantial and impair ability to weigh harms and benefits b)Δ must have knowledge of incapacity) EXCEPTION Cannot consent to crime

o Implied- (1) custom, usage (sports); (2) reasonable interpretation (first date kiss) EXCEPTION Cannot consent to crime

o Cannot exceed scope of consent (Ashcroft v. King Consented to familial blood transfusion, was given other AIDS infected blood) Exception: Medical professionals may exceed Kennedy v. Parrot removing appendix, also operated on cyst

Disciplineo Parent/teacher may use reasonable

force to discipline child Privilege of Arrest (Also see above to defense

of property)

o Mistake of Felony committed- only police can make mistake. If private citizen makes mistake, can’t claim privilege.

o Mistake of Person committing felony- reasonable mistake allowed

o Misdemeanors- must be committed in one’s presence.

Necessity

Public Nec. (Common Law)

Public Nec (Governed by Statute or Const.)

Private Necessity

If destroying someone’s private property to save public there is no liability (Surroco v. Geary, Destroyed house to save town from fire)

These usually allow for destruction of the property to save public, but impose a liability to pay on the government (Wegner v. Milwaukee Insurance, law in MN Constitution)

One can trespass or destroy another’s property to save their own property or life, but they are liable for damages. (Ship/Dock Cases, Vincent v. Lake Erie) Note: If the person you are moored to unties you and you or your property are damaged then they become liable Ploof v. Putnam

Policy Considerations:When there is not a clear outcome you can use these

to arg. For what you think result should be Utilitarianism Social Justice Natural Law Efficiency Cost/Benefit

Negligence:Negligence may be any conduct that creates an unreasonable risk of harm to others—it is actionable as a tort when that risk comes to fruition in actual harm

Torts 4 Rule: a) Defendant owed plaintiff a legal duty, b) defendant by behaving negligently, breached that duty, c)plaintiff suffered actual injuryd) defendant’s negligence was an actual cause of the injury; and e) defendant’s negligence was a proximate cause of the injury

Duty:Rule: You have a legal duty not to increase the risk to other people. In general duty is that people have to act as a reasonably prudent person would in the same or similar circumstances. The degree of care varies with the situation, the standard of care is always reasonable care FORSEEABILITY=RPPSOC, Factors considered when analyzing what duty is:

- Heightened Knowledge or special training, dangerous instrumentalities same SOC- different circumstances (Hills v. Sparks, Stewart v. Motts)

Children have childs SOC, except when they are operating a dangerous instrumentality (Robinson v. Lindsay) General Rule for Children: Duty of children is in exercising the same care that a reasonably careful child of the same age, intelligence, maturity, training and experience would exercise in the same or similar circumstances Hudson v. Putney

-- Physical Disabilities, then ‘in same or

similar’ (Shepard v. Gardner)* Sudden Unforseeable Medical Emergency, SOC doesn’t change if Med emergency was foreseeable –epilectic-(Roman v. Estate of Gabbo)*Mental disability does not change SOC (Stewart v. Motts)

2. Neg. Per Se- is a violation of statutorily created rule or duty: Two part test to see whether violation of statute negligence per se (Martin v. Hertzong) **Talk about broad or narrow 1. Π is a member of the class of persons that the statute seeks to protect. (Rains v. Bend, Wright v. Brown, Haver v. Hinson) 2. Accident is within the class of injury that the statute seeks to prevent (If yes to test * analyze 5 factors from Rains) (narrow injury supported by Wright and Haver)

a. Whether the statute is the sole source of the defendant’s duty to the plaintiff

b. Whether the statute clearly defines the prohibited or required conduct

c. Whether the statute would impose liability without fault

d. Whether invoking the negligence per se doctrine would result in damage awards disproportionate to the statutory violation, and

e. Whether the plaintiff’s injury is a direct or indirect result of the violation of the statute

Defenses to Neg. Per SeRule: Unless legitimate excuse for violation of the

statute is offered then is Neg. Per Se (Impson v. Structural Metals)

1. violation was reasonable because actors incapacity (ex. Child or med. Emergency)2. Neither knows nor SHOULD know occasion for compliance3. Unable to comply, even after reasonable diligence or care (Impossibility)4. Emergency Doctrine, not due to own conduct (ex. Storm or tire blew out)5. Compliance would have resulted in greater risk of harm to actor or another. (Nurse case)

Neg. as a Matter of Law: Rule: No reasonable jury could conclude that this is anything but negligence. Judge determined. (Marshall v Southern Railway, Chaffin v Brame)

Breach:Rule: Where the actor has a choice of action he

should engage in the action that will: 1. Result in the least amount of harm; AND,

Torts 5 2. Reduce the probability that anything bad will happen (must be foreseeable) Rule: Preponderance of the evidence standard-Each element of Negligence must be proved more likely than not (roughly 51% standard)(US. V. Carrol Towing)

LH Formula Apply B<PL analysis- burden of preventing harm is less than the probability of injury x seriousness of harm should the injury occur—if B<PL then breach of duty; if B>PL no breach (B=burden of precaution, P= probability of accident L= magnitude of accident) US v. Carrol Towing)

-****Policy For: is flexible and can change with the times; is better than any other arbitrary standard-*****Policy Against- hard to quantify injuries/probability of injuries; everything that we do carries some risk and any activity has some benefit and any precaution some costs

Golden Rule Do unto others as would have done unto you

JURY: Intuitively, By Neg. Per Se, Neg. as Matter of Law, by Custom (can hold to higher standard then Statutes- can be used as evidence)

Background Rules (Court made, not binding, rules of thumb)

1. Life above property (Bernier v. Edison, Indiana Consol. Ins)

2. Person who has greater knowledge (Sinnet)

3. Foreseeability is low when you are depending upon an expert (Sinnet v. Buchele)

4. If burden is high, and likelihood of injury is low, then no breach (Lee v. GNLV Corp) 5. When one is confronted with 911 he may act in his best judgment without being neg. (Indiana Consolidated v. Matthew)

6. Degree of harm can be weighed against right to protect ones property/ sterilize camp experince(Fintzi v. New Jersey)

a)Joint and Several- Can enforce total against A, who can then recoup from B. (Π friendly, meets goal of compenation)

B)Comparative Fault- Each will pay their own % (not Π friendly, allows poor to not be deterred, but saves from over detterance on rich Δ)

Proving Conduct: Must meet by a preponderance of the evidence

(51%) (US V. Carrol)

To prove cause you have to prove more likely than not that Δ was negligent (Santiago v. First Student)

If there is a question of fact it should go to a jury and be upheld (Santiago v. First Student) (Upchurch)

It is up to jury to determine witness credibility (Upchurch)

Can use neg. per se, but may just be evidence of neg.

Circumstantial evidence gives clues to weather breech has occurred (allows you to make inferences which can led to preponderance of evidence being met) (Forsyth v. Joesph)

Expert testimony is only needed when topic is something a lay person would not be knowledgeable about (Dist. Of Columbia v. Shannon slide-thumb case)

Non-expert witnesses can only testify as to facts, not opinions or conclusory statements

Evaluating Conduct: Custom does not determine SOC (but could be

used as evidence) (TJ Hooper) Policy manuals do not determine SOC (evidence)

(Duncan, followed but wasn’t enough, WalMart, didn’t follow but okay)

plaintiff must show that the owner either created a dangerous condition or had actual constructive knowledge of a dangerous condition-can be established by circumstantial evidence (Cracker Barrel) [SLIP] Even if Δ did not cause the danger he is liable if enough time passed

Evidence that customary safety policy was violated- goes to jury

Mode or method of business operations make it all to likely that a dangerous situation will occur[SLIP]

AOR- Use Soft Crews analysis

1. Did the plaintiff have knowledge of the risk—objective test-Reasonable person

2. Did the plaintiff appreciate the risk- objective/fact specific test

3. Did the plaintiff voluntarily expose himself/herself to that risk?( Crews v. Hollenbach) Do this when analyzing in breach or here (see page 12 for when to do what)

RES IPSA LOQUITER

Torts 6

RES IPSA LOQUITERThe Thing speaks for itself. It is a form of circumstantial evidence, the rationale is that facts can sometimes be inferred from other facts. Res Ipsa allows the jury, based on evidence about the accident itself, to infer that it must have resulted from some negligent act of the defendant. To invoke res ipsa, plaintiff must show that under the circumstances negligence is more probable than not (Koch, Cosgrove), and must show OLD RULE1. The Instrumentality at issue is within the defendant’s exclusive control (Is a flexible term-Giles) (Cannot have more than one Δ with the exception of Collins) 2. Accident is of the type that doesn’t ordinarily happen without some negligence 3. Plaintiff and 3rd parties didn’t cause or contribute (Is flexible too, can have contributory neg., Giles)(Valley and Eaton for all 3 rules) * Crucial impact of res ipsa loquitur is that it allows plaintiff’s case to go to the jury even though he has not proved a specific act of negligence* Majority: Res Ipsa creates an inference of negligence that allows you to survive summary judgment and go to the jury- then jury then decides if it wants to accept or reject the inference—plaintiff still has burden of proving the rest of the elements- injury and causation *Minority: Res Ipsa creates a rebuttable presumption of negligence- the burden shifts to the defendant to prove that he is not negligent—it is presumed more likely than not that a duty was breached—better for plaintiffs—if defendant rebuts the burden gets shifted back to the Π, if not Π wins. NEW RULEModern Rule:Either inference or rebuttable presumption when:

1. The accident is of the type that normally does not happen without neg.

2. Δ was more likely than not neg.

*If 2 or more Δ then no RIL (Collins is exception)Notes:

a. RIL gives you breech and maybe duty, still need to prove rest (with maj. Rule)

b. If no RIL can just default to neg. c. Π has to exclude other causes when

“it is easy to do so” (Warren)d. If Π has superior K then less likely to

get RIL, if Δ has superior K than RILe. More likely to get res ipsa where

there is no reciprocal risk- because it is an indicator that the defendant had exclusive control of the instrumentality (Wyndemere)

f. Π is not required to negate other possible causes (Wyndemere)

Torts 7

INJURY:Rule: Plaintiff must suffer a legally cognizable harm Preston v Cestaro4 things to be aware of: 1. injury must have resulted due to the defendant’s breach of duty; 2. injury can be a loss of market value in many instances; 3. at common law emotional distress alone are not legally cognizable injuries; what the advent of IIED and negligent injury of emotional distress have helped to resolve this4. At common law future risks created by negligence generally don’t count as injuries—this may have changed a bit with the lost chance doctrine* Also plaintiff cannot recover damages if there was no injury suffered-because injury is an element of the prima facie case

Note: causing inpermanent bodily change but no pain = no injury – (orphan)

LOST CHANCE DOCTRINE IN ACTUAL CAUSATION SECTION

ACTUAL CAUSE:

Torts 8

3 ways to establish:1. But for X (most common) (Salinetro v Nystrom)2. Substantial Factor Test (Anderson v. Minneapolis, Dillon v. Twin) when two or more causes concur to bring about an event , then cause-in-fact is established by the substantial factor test- was the actors action a substantial factor in bring about the harm3. Summers v. Tice rule: where there are multiple defendants, but only one caused the harm, they can both be held liable and it is up to the defendants to apportion liability (only works if Π can prove all Δ’s were negligent (Doe v. Baxter))—do joint and several or comparative, pg. 10)

LOST CHANCE:d. Lost Chance—its own animal- could

talk about it under causation because of policy considerations(But for works with 3. All work with substantial factor test, none work with Summers.) If general do #3, and why others no. If asked to apply lost oppt. Apply approach from Lord v. Lovitt, also apply all 3 in essay- 1. Traditional- Plaintiff must prove that as a result of the defendant’s negligence, the plaintiff was deprived of at least 51% chance of a more favorable outcome than they actually received. Once a plaintiff meets this burden, they would recover damages for the entire preexisting illness or condition. 2. Variation of Traditional- The causation requirement is relaxed by allowing the plaintiff to submit their cases to the jury upon demonstrating that a defendant’s negligent more likely than not increased the harm to the plaintiff or destroyed a substantial possibility of achieving a more favorable outcome. If jury buys it- can get 100% recovery. 3. Lost Opportunity—majority rule- The lost opportunity for a better outcome is, itself, the injury for which the negligently injured person may recover. The plaintiff will prevail if they can show more likely than not that defendant increased the risk of harm, but damages are limited to the value of the lost opportunity. Thus if defendant by their negligence eliminated a plaintiffs 40% chance of survival, the plaintiff would be able to recover 40% of damages.

* Lord v Lovett- p 225 plaintiff broke her neck and doctors misdiagnosed her injury causing her to lose the opportunity for a better recovery. Court held that plaintiff may recover for lost opportunity where defendant’s alleged negligence aggravates the plaintiffs injury and deprives them of a better outcome.* McDaniel v.Org- if Π would not have taken advantage of lost opp. Then no damages, but this should go to a jury (Jorgenson v. Vener) * Alexander v Scheid- radiologist reported density on lung and concluded the dr should follow up, dr didn’t and mass grew and metastasized. Can proceed because of lost opportunity- here no problem with causation- so suggests that lost chance can be a part of causation or in changing the injury * Verdicchio- Plaintiff couldn’t prove whether cancer had metastasized at the time of misdiagnosis. Court says irregardless, the chance for better recovery was reduced and plaintiff could recover. Had 85% of survival if cancer had not metastasized at time of misdiagnosis and 30% chance of survival if it had. 55% x 5m = 2,750,000 = value of lost opp. * If defendant’s negligence eliminates the plaintiff’s chance of survival he could be held liable for that percentage of chance—i.e. Lost Opportunity* Hypo: Assume that a woman is pregnant and that she is bleeding from her rectum. She tells her OB this, but the OB says that some bleeding is normal and the patient doesn’t worry about the bleeding anymore. After she delivers, she is still bleeding and sees her primary care doctor who has her screened for colon cancer. It turns out that she has stage 3 colon cancer. The doctor’s negligent act did not create the cancer, but let’s say that if the cancer had been caught sooner there is a 49% chance it would have been stage 2 cancer and not stage 3. Survival rates from stage 2 cancer are substantially higher (80%) than survival rates from stage 3 cancer (40%). * Traditional Approach: No one knows whether cancer was at stage 2 or 3 when the woman first complained. If it was at stage 3 (here, there is a 51% chance of this), then the woman’s damages would be $0 because there was not greater than 51% chance of survival- only 51%.* Modified Traditional Approach- if 40% is more likely than not, based on the evidence- then full recovery* Lost Opportunity- Majority Rule- the chance of survival was reduced by 40%- difference between stage 2 and stage 3. (Multiply value of life x lost % chance)= value of lost opportunity. (5 million x 40%) = 2 million. There is a 49% chance she will suffer $2M in damages (lost chance) and a 51% chance that catching cancer sooner would have made a difference ($0 in damages) –so 49% x 2M + 51% x 0 = 980,000 ( % chance it would have been stage 2 x value of lost opportunity) + (% it would already be at stage 3 x damages allowed) = damages awarded if cancer was at stage 2 when misdiagnosis occurred

Torts 9

PROXIMATE CAUSE-Is the harm of the same general nature that was created by the Δ’s negligence [WHEN DOING ANALYSIS DO IN TERMS OF NARROW V. BROAD CONSTRUAL, use policy and particular facts applied to rules] Ways to think of:

1. (One to focus on) Scope of risk/forseeability (: type of harm; class of person; manner of occurrence/extent of harm)

2. Intervening Tortfeasor3. Policy Considerations, we have to draw a

line in causal continuum somewhere4. Duty, what would a RPP do? Apply

Learned Hand formula.SCOPE OF RISK (also look at manner/extent; cut off liability, acts of god):

a. Type of Harm- compare what is foreseeable with what actually happened- defendant is only liable for types of injuries risked by his negligence- - if a reasonable person would foresee no harm to anyone as a result of his actions- do not reach issue of proximate cause (Medcalf v. Washington, Abrahms v. City of Chicago both not within scope)

b. Class of Persons: is the person affected by the act, the class of person foreseen- only liable to the classes of persons risked by negligence- defendant’s conduct is not a proximate cause when the defendant could not foresee harm to persons situated as the plaintiff is (Palsgraf v. Long Island Railroad (not in class), Mellon v. Holder (not in class and not forseeable)

EXCEPTION TOFORSEEABILITY: if you put someone at a risk of harm and it is foreseeable that they would need rescue, the scope of risk then expands to include the rescuer in the class of persons that are foreseeable- Rescuer can recover from the defendant whose negligence prompts the rescue—this includes cases where the defendant negligently injures or endangers himself

and the plaintiff is injured in attempting a rescue- only those who are in close proximity in time and distance to the party requiring assistance are within the class of potential rescuers and a rescuer must in fact attempt to rescue someone (Wagner v International RR)

Other considerations (Notes)1. Manner of Occurrence- Manner of

occurrence doesn’t really matter unless it is completely unique and therefore unforeseeable (Hughs v. Lord Advocate, Doughty v. Turner)

2. Extent of Harm- if you harm the plaintiff then you are responsible for everything that happens to them

Thin Skull Rule: Restatement 435(1)Rule: When defendant’s conduct otherwise qualifies as a proximate or legal cause of the plaintiff’s harm, the defendant does not escape liability merely because the harm was more extensive than anyone foresaw or could have foreseen Fire Cases- extension of thin skull- when a person’s negligence starts the fire, they are equally liable for the consequences whether they foresaw them or not

2. Intervening Tortfeasor- - When tortfeasors act in sequence, the first tortfeasor will often argue that the second is an intervening cause that supersedes him and cuts off liability—an intervening cause that lies within the scope of the foreseeable risk, or has a reasonable connection to it, is not a superseding cause (Austenmiller v. Dostek, Deridian v. Felix) (Not forseeable: Sheehan v. City of New York, Ventricelli v. Kinny)- any unfolding events caused by ∆’s negligent act and π’s injury even though bizarre could be foreseeable and proximate—up to the jury to decide (Marshal v. Nugent)-If you are neg. then injuries that happen after you are held liable for as well (Anaya) - If it is foreseeable that negligent action will cause intervening tortfeasors to come forward, then that brings more people within the class of persons in the scope of risk - If the intervening tortfeasor was intentional then likely to cut off liability (Watson v. Kentucky and Indiana Bridge and RR)(Policy: New with intentional tortfeasors: compensation, you as a business have a duty (to x, install y) because of your financial gain)

SOR: TERMINATION OF RISK: shifting responsibility- when an intervening tortfeasor steps in, original tortfeasor’s liability gets cut off and all responsibility gets shifted to intervening

Torts 10--tortfeasor (Pittsburg v. Horton, Kent v. Commonwealth)

SOR:INTERVENING FORCES OF NATURE:intervening ‘acts of god’ can cut off liability unless they are foreseeable—i.e. if you build in San Francisco and don’t take earthquakes into consideration when you construct—you are liable because it is foreseeable there could be an earthquake

Calm Waters analogy: cuts off liability

Torts 11

ASSESSING DAMAGES- Joint and Several Liability- you can enforce the claim against any tortfeasor,

and if one tortfeasor pays the entire amount they can get ‘contribution’ from the

other tortfeasor for their proportional amount; better for plaintiff- more likely to be compensation—not really applicable in comparative fault jurisdictions any more

- Comparative Fault/Several Liability- Plaintiff’s recovery is generally reduced by their negligence to reflect their fault; and each faulty party must bear their share of losses. Here, the tortfeasor is only responsible for their portion of the claim—pro-defendant rule in that they only have to pay there share—plaintiff can’t get all of their money from one party and then expect them to get

contribution elsewhere-plaintiff bears risk of this if defendant is judgment proof.

Torts 12DEFENSES TO NEGLIGENCE 1. Trad/Common Law Contributory Negligence: Rule: no matter how small plaintiff’s liability is, there is no recovery (Butterfeild v. Forrestor) (very few states use)2. Pure Comparative Fault- look at plaintiff’s % of fault and that reduces the verdict3 Modified Comparative Fault:

A. Sollin: plaintiff gets recovery only if their fault is less than all other defendants- 49% or less. (Sollin v. Wangler)

B. Wisconsin- plaintiff only recovers if their fault is equal to or less than others so 50% or less (Wassel v. Adams)

c. Maine Rule: requires the jury to make a reduction of damages based on what it considers to be equitable and just. –policy reason- gives flexibility to jurors; negatives- allows for prejudice without justification

Restatement 3rd of Torts §8 Factors for assigning shares of responsibility include:

a. nature of the person’s risk-creating conduct, including awareness or indifference with respect to the risks created by the conduct and any intent with respect to harm created; and

b. Strength of the causal connection between the person’s risk-creating conduct and the harm

Rescue Doctrine and Comp. Fault:-there is no comparative fault on the part of the rescuer unless the rescuer acts recklessly—encourages policy of protecting and encouraging rescuer (Ouelette v. Carde)- rescue doctrine applies even when a 2nd rescuer is rescuing the rescuer—this applies as long as it is foreseeable that someone might have to save the rescuer (Govich v. North American System)

EXCEPTIONS WHEN YOU ARE DEALING WITH TRAD/COMMON LAW CONTRIBUTORY NEG. a. Last Clear Chance Doctrine- Under traditional contributory negligence, if the defendant could/should have discovered plaintiffs peril, then the defendant must bear 100% of the responsibility—cuts off all liability of the negligent plaintiff

Under Comparative fault this is no defense- Courts will just assign % of fault to π and ∆

b. Plaintiff’s Illegal Activity- Generally, if plaintiff was harmed negligently while engaging in illegal activity they wouldn’t recover. (Baker v. Kallas, Alami v. Volkswagon, Zysk v. Zysk)

Some jurisdictions have relaxed this, particularly comparative fault—where they just assign percentages

c. Intentional/Reckless Conduct- A plaintiff charged with contributory negligence was traditionally allowed a full recovery against a reckless or wanton defendant.

* In comparative fault jurisdictions- reckless actions % of fault are assigned; in the case of intentional actions- plaintiff’s liability is still cut off

d. Mitigation- Traditional rule: If you fail to mitigate/minimize damages then you lose out on the entire damages because you are seen as an intervening tortfeasors; under comparative fault- just apportion faultInstances where Comparative Fault Won’t Apportion Liability/Contributory Negligence Not AvailableIntentional/Intervening Tortfeasors, and Other Public Policy Reasons-Hold Dr.s accountable, even when Π is at fault for original injury (Mercer v. Vanderbilt University)-Special rules for manufacturers need to have safety precautions (Bexiga v. Havir)-Self abuse or destructive acts cut off neg. (ex. Suicide, McNamara v. Honeyman)-You are allowed to take risks to own property (Leroy Fibre v. Chicago M and St.P)

Torts 13**only applies to non-strangers/ASSUMPTION OF RISK (DEFENSE)1. Contractual Assumed Risk: Restatement Rule- Parties should be able to contract with each other and this should be binding—so whenever there is a valid contract, it should bar all of plaintiffs claims-Things to Consider when trying to figure out whether the release should be valid and binding:

1. Did the plaintiff have bargaining power? (If 2 are sophisticated then less valid)

2. Is the service provided essential or was it a choice? If it is essential then the release is probably invalid (Tunkl v. Regents of University of CA)

3. What is the scope of the agreement? Does the scope of the agreement include the particular injury—in torts the scope generally only includes the type of negligence that is inherent in the type of activity itself (Moore v. Hartley Motors)

4. All other general contracting procedures (Lack of capacity, coercion, consideration)

5. Was it a K of adhesion (generally not okay because of policy reasons)

2.Implied assumption of risk-in comparative fault- this is not a defense, goes under breach analysis- for exams do analysis under both—Use Crews analysis

1Did the plaintiff have knowledge of the risk—objective test-Reasonable person2Did the plaintiff appreciate the risk- objective/fact specific test3Did the plaintiff voluntarily expose himself/herself to that risk?

( Crews v. Hollenbach) Do this when analyzing in breach or here

Dobbs Law of Torts- Traditional assumed risk rules find tacit consent when the plaintiff, knowing of the risk and appreciating its quality, voluntarily chose to confront it. Dobbs argues that you don’t really need assumption of risk as a bar in a comparative fault system. Because the consent really goes to effect the duty of the defendant—if the plaintiff consents to a type of risk, this changes the duty owed.

Prevailing Rule for Implied AOR-If a plaintiff is reasonable in facing a risk, she is not negligent except when she unreasonably confronts a known risk then her negligence in doing so reduces recovery of damages (Betts v. Crawford)

Restatement: if you have a contractual assumption of risk, then defendant is relieved of all liability; but if there is an implied assumption of risk- then defendant’s liability maybe reduced by comparative fault percentages

3. Assumed Risk as a Limited Duty/No Negligence on part of DefendantThe plaintiff only assumes the risk that are inherent in the activity in which they are engaging, they don’t assume the additional risk created by the defendants negligence (Siragusa v Swedish Hospital, Sunday v Stratton Corp.)

Assumption of risk in comparative fault jurisdiction is no real defense; you just go up to the analysis of breach in that the consent/assumption of risk given is a factor in the consideration of the circumstances. In other words, when you assume the risk inherent in the activity then you relieve the duty of the defendant in this regard. (Turcotte v. Fell)

In sports cases analyze under what Δ’s duty under the circumstance were (Gauvin v. Clark- MA)

In Trad. Comparative Fault: ΔMA: DutyTurcotte/NY: Duty, ΔIf no jurisdiction: Breach, Δ

Torts 14STATUTE OF LIMITATIONSStatute of Limitations- Under state law, you have a certain amount of time to bring your claim and if you don’t bring your claim during that period of time you are out of luck.

Approaches to when the Statute of Limitations will begin:

1. Accrual Rule: At the time of the first exposure to the tort, even though the individual may not know of it- rule from Crumpton and Shearin (least Π friendly)

2. Whenever the last exposure to the treatment or when employment was terminated

3. Discovery Rule-Majority Rule- the statute begins to run when the plaintiff discovered or should reasonably have discovered the injury; when you find perm. Injury and know Δ role. just because you suspect a danger it doesn’t necessarily count as discovery; but if everyone knows of a particular danger then the statute of limitations begins- Sciele

4. Extended discovered, permenant damage and role.

5. Actionable Injury Rule- minority rule- the statute doesn’t start running until plaintiff discovered or should have discovered both negligence and causation

(if doc tells you SOL runs, if is common K then SOL runs)ANALYZE ALL APPLICABLE

Things that will Toll the Statute of Limitations:

1. If someone purposefully conceals information from the plaintiff to prevent a law suit- acting fraudulently will toll the statute—but, wearing a mask to conceal your identity during the tort will not toll it because it is not purposeful concealment to bringing the suit

2. Tolling for disabilities- generally the statute will be tolled for minors or mental incompetence

3. AZ tolling statute- incarcerated persons when disc/ release from prison, whichever 1st

4. Equitable Estoppel- if there is an affirmative misrepresentation, and the plaintiff relies on this to their detriment-this will toll the statute—i.e. doctor says he works for a private practice, but turns out he is state employee

Note: Notice Bar- some states will require the plaintiff to give notice before filing-this will in essence shorten the statute of limitation

ADDT DEFENSES

1)Compliance with StatuteMiller v Warren- hotel didn’t have smoke detectors and customers got injured during fire. But the building code did not require smoke detectors.Holding: Complying with a regulation is competent evidence of due care, but not conclusive evidence of due care

Compliance with a statute or regulation is not a defense. Statutory requirements usually reflect the minimum standard of care. Compliance with the statute is some evidence of due care

2)PreemptionPreemption- generally if there is a conflict between fed and state law, or there is an area where fed law occupies the field- the fed law trumps state law2 ways:1. Case law- judges determine if fed trumps state law; meaning if there is a state cause of action is preempted by federal law means that you don’t have a state claim- but you can still bring federal claim2. Federal statute or law specifically says that federal law trumps state law (FDA does not bar)