Intentional Tort General

Intent: A person acts intentionally where: 1.he desires to cause the consequences of his act, or 2.the consequences are substantially certain to result from it.

The Intent Requirement 1.Specific Intent – exists when the defendant acts desiring his

conduct cause the resulting consequences

General Intent – exists where the defendant acts knowing with substantial certainty (a somewhat lesser degree than specific intent) that his conduct will cause the resulting consequences.

Transferred Intent – exists when the defendant intends tortious conduct against one party but the resulting harm is caused upon another party.  Transferred Intent applies only to the following torts: False Imprisonment, Trespass to Land, Trespass to Chattel, Assault, and Battery. [FiT TAB]  [BIC FATT]

The Act Requirement 1.There must be an external manifestation (some evidence that a

message got from the mind to the body, a perceptible movement or failure to move) and

2.involvement of the will (some evidence that the external manifestation was volitional and not the result of a reflex).  

INTENTIONAL TORTS- (FAT BITCH) 

a. BATTERY b. ASSAULT c. FALSE IMPRISONMENT d. INTENIONAL INFLICTION OF MENTAL DISTRESS e. TRESPASS TO LAND f. TRESPASS CHATTEL g. CONVERSION

 Battery

A. Definition: protects a person's bodily integrity, the right to be free from intentionally inflicted contact that is harmful or offensive.

 B. Elements

An actor is subject to liability to another for battery if (1) 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 (2) a harmful contact with the person of the other directly or indirectly results.

 C. Intent to Act:

(1) An act is a non-reflexive intended muscular movement that is an external manifestation of will regardless of whether the reasons for the intended act are irrational(2) External manifestation - something that can be perceived, even standing still.  

D. Defining Injury and Harm a. Injury is the invasion of a legally protected interest, which

must be intended. b. Harm is the loss or detriment suffered which need not be

intended or foreseen. c. Offensive -offends your dignity, found upsetting, rude,

insulting  

E. An act which is not done with intent does not make an actor liable to the other for offensive contact with the other’s person although the act involves a reasonable risk of inflicting it and, therefore, would be negligent or reckless if the risk threatened bodily harm

 F.   Prosser & Keeton on Torts

The act of the defendant must cause, and be intended to cause an unpermitted contact.

 G. Intent to Contact

a. (1) Intent is the desire to cause consequences or the belief that consequences are substantially certain, regardless of whether the resulting injury was the one intended or whether the reasons for the intention are irrational. 

1. Battery requires that the actor intended to cause a contact that is harmful or offensive. Freedom from intentionally inflicted harmful contact is the interest that law is trying to protect. 2. The interest is different from the harms suffered. The actor need not intend the harms suffered if the actor intended the contact. Citing in Waters v. Blackshear - Horton v. Reeves, 186 colo. 149“The extent of the resulting harm need not be intended, nor even foreseen.”

Example: Waters v. Blackshear "firecracker kids" pg.16 

Walters v. Blackshear , 591 N.E.2d 184 (Mass. 1992) .  Defendant Waters, a minor placed and lit a firecracker in Plaintiff Blackshear’s sneaker, also a minor.  Plaintiff sustained burn injuries.  The court cited Horton v. Reaves , 186 Colo. 149, 155 (1974), which found that “the extent of the resulting harm need not be intended, nor even foreseen.” Polmatier v. Russ "naked crazy guy kills father in law" (pg. 18)1. The plaintiff must prove that the def. acted. And act is an external manifestation of the actors will. 2. The plaintiff must prove that the def. intended for the act to cause a contact that is H or O.3. If the def.’s personal characteristics do not prevent the def. from exercising his will or forming an intent, they are irrelevant.

 Polmatier v. Russ , 537 A.2d 468 (Conn. 1988) .  Defendant shot and killed his father-in-law while visiting the home of his in-laws.  He claimed that he was insane at the time.  The court found that a muscular reaction is always an act, unless it s a purely reflexive reaction in which the “mind and will have no share"  Although the trial court found Defendant to be insane, the court believes that the act was done by choice, an irrational choice, but a choice nonetheless.  The court further believed that Defendant intended for the act to bring about harm to Plaintiff, as evidence by the reasons and motives for his actions that Defendant provided to police.  The court cited comment c to § 895J of the Restatement, which states that it is not necessary for a defendants reasons and motives for forming his intention to be rational in order for him to have intent.

 Restatement (Second) of Torts § 2 defines an act to denote an external manifestation of the actor’s will and does not include any of its results, even the most direct, immediate, and intended.

 Restatement defines intent to denote that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it.

  Citing Horton v. Reeves, 186 colo. 149

“The extent of the resulting harm need not be intended, nor even foreseen.”

    The Intent Requirement

A. Battery actions are based on claims that a defendant intended to cause a contact that is harmful or offensive.  Polmatier and Waters both involve defendants who desired to cause the contact, though it is clear that intent to contact may also be proved by demonstrating that the defendant was substantially certain the contact would occur.

 Polmatire and Waters both involve def. who desired to cause the contact, though it is clear that intent to contact may also be proved by demonstrating that the def. was substantially certain the contact would occur.

  

The ACT Requirement1. The external manifestation(some evidence that a message got from the mind to the body, a perceptible movement or failure to move) and2. Involvement of the will (some evidence that the external manifestation was volitional and not the result of a reflex)

 Proof

The plaintiff must prove that the defendant acted. The plaintiff must prove that the defendant intended for the act to cause a harmful or offensive contact. If the defendant’s personal characteristics do not prevent the defendant from exercising his will or forming intent, they are irrelevant.

  

Intending Contact That is HarmfulNelson v. Carroll "thug life, 50 cent" (pg. 23)1. A battery may occur directly through an intentional contact (hitting someone on the head with a gun ) or indirectly (bullet leaves a gun accidentally as gun is raised with the desire to hit someone on the head) 2. If the intent requirement is met, liability extends to unintended and unforeseeable consequences.

Sets forth in motion a chain of events.  Nelson v. Carroll.  Defendant hit Plaintiff over the head with a gun and it accidentally goes off.  Battery does not require a specific intent to produce a specific type of harm. 

Battery only requires an intent to harm.  If the intent requirement is met, liability extends to unintended and unforeseeable consequences.

  

Defining Injury and HarmInjury(the invasion of a legally protected interest) which must be intendedHarm (the loss or detriment suffered) which need not be intended or foreseen 

Intending a Contact That is Offensive (pg. 28)Leichtman v. WLW Jacor Comm., Inc. "Smoke in Face" (pg. 28)1. Battery included intent to cause an offensive contact2. Offensiveness of a contact is determined by an objective test of what would offend a reasonable sense of personal dignity. Injured Bodily Integrity!!

 Leichtman v. WLW Jacor Communications, Inc. , 634 N.E.2d 697 (Ohio Ct. App. 1994).  Defendant blows cigar smoke into Plaintiff’s face knowing Plaintiff was an antismoking advocate.  Battery includes intent to cause an offensive contact.  Offensiveness of a contact is determined by an objective test of what would offend a reasonable sense of personal dignity.  

Objective:Subjective: 

Andrews v. Peters , 330 S.E.2d 638 (N.C. Ct. App. 1985) .  Jokester taps back of Plaintiff’s knee causing her to fall and dislocate her knee cap.  For intentional torts, defendant need not intend the contact to be harmful, may intend only a practical joke, may honestly believe that the act will not harm the plaintiff, but if the contact is intentional and harmful or offensive, the act is battery.  White v. Muniz , 999 P.2d 814 (Colo. 2000) .  Elderly lady kicks nursing home employee.  In dual intent jurisdictions, the defendant must intend both 1) that the act will cause a contact and 2) that the contact will be harmful or offensive.

 Dual Intent - (minority rule) In dual intent jurisdictions, the defendant must intend both:

A. That the contact will be harmful (or offensive). In non-dual intent jurisdictions, the P only needs to show that the D intended contact, but not whether he intended the contact to be harmful or offensive. This removes from the jury a decision of the D's subjective intent regarding whether the contact was harmful. 

Damages for Intentional Torts A. Nominal damages are awarded in intentional tort cases where

the plaintiff suffered an inury but no harm, in order to establish the respective rights of the parties. $.06/$1

B. The principle of de minimis non curat lex limits plaintiffs right to recover even nominal damages for trivial invasions of their interests. Example: Taylor v. Barwick "jail guy gets hit in butt by guard" pg. 36

3. Guideposts for excessive punitive damagesDegree of reprehensibility of defendant’s conductDisparity between actual and punitive damagesComparison of punitive damages awarded and other civil penalties that could have been imposed.

4.Compensatory– for harms suffered 5.Punitive damages – intended to punish the defendant rather

than to compensate the plaintiff.6.Nominal damages – awarded instead of compensatory damages

when a plaintiff has suffered injuries but no harm. Nominal damages can be awarded when a plaintiff suffered injury, but no harm. 

 Assault 

Definition: Protects one's interest in being free from the apprehension of imminent harmful or offensive contact.  Restatement 2d Torts Section 21.  Assault (1) An actor is subject to liability to another for assault if (a) s/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.   Example: D threatens to kill + leaves = no assault D threatens to kill + leaves + gets gun and brings back = assault D has gun at his back – P has no apprehension = no assault

 Intending Apprehension of Imminent Contact

(1) Intent for assault requires that the defendant intend to interfere with another’s interest in being free from apprehension of imminent harmful or offensive contact. (2) The defendants conduct must be such as to arouse apprehension of present rather than future contact in a reasonable person. (3) Conditional language, threatening such contact unless the plaintiff modifies his future behavior in some way, does not suffice to show assault.

Cullison v. medley "perve and girl, crazy family" pg. 40   Threatened harm of physical harm must be imminent for conduct to be characterized as an assault, regardless of the extent of the resulting emotional disturbance. "Brower v. Ackerly, the billboard guy"

 Imminent v. ImmediateThe apprehension created must be one of imminent contact, as distinguished from any contact in the future. “Imminent” does not mean immediate, in the sense of instantaneous contact, as where the other sees the actor’s fist about to strike his nose. It means rather that there will be no significant delay. It is not necessary that one shall be within striking distance of the other, or that a weapon pointed at the other shall be in a condition for instant discharge. It is enough that one is so close to striking distance that he can reach the other almost at once, or that he can make the weapon ready for discharge in a very short interval of time. Restatement 2d of torts section 31 comment b.   Rest 2d Torts section 24Section 24 what constitutes apprehension? "In order that the other may be put in the apprehension necessary to make the actor liable for an assault, the other must believe that the act may result in imminent contact unless prevented from so resulting by the other’s self-defensive action or by his flight or by the intervention of some outside force." Comment: What is not an apprehension. If the other, thought knowing of the act done by the actor and realizing that it is intended to cause him a bodily contact, believes, whether reasonably or unreasonably, that the means adopted by the actor are in and of themselves incapable of effectively carrying out his purpose, he has not been put in such an apprehension as is necessary to make the actor liable. 

 Comment: Thus, is the actor, believing a revolver to be loaded, points it at another and threatens to shoot him, the actor is not liable under the rule stated in section 21 if the other believes that the revolver is unloaded. This is true though the other is mistaken in his belief, the revolver is in fact loaded, and the actor is only prevented from carrying out his purpose by a bystander snatching the revolver from him. Rest 2d Torts section 2424 What constitutes apprehension - comment"b. Distinction between apprehension and fright. It is not necessary that the other believe that the act done by the actor will be effective in inflicting the intended contact upon him. It is enough that he believes that the act is capable of immediately inflicting the contact upon him unless something further occurs. Therefore, the mere fact that he can easily prevent the threatened contact by self-defensive measures which he feels amply capable of taking does not prevent the actor’s attempt to inflict the contact upon him from being an actionable assault. So too, he may have every reason to believe that bystanders will interfere in time to prevent the blow threatened by the actor from taking effect and his belief may be justified by the event. Bystanders may intervene and prevent the actor from striking him. None the less, the actor’s blow thus prevented from taking effect is an actionable assault. The apprehension which is sufficient to make the actor liable may have no relation to fear, which at least implies a doubt as to whether the actor’s attempt is capable of certain frustration.  Prosser and Keeton on TortsApprehension is not the same as fear, and the plaintiff is not deprived of an action merely because of being too courageous to be frightened or intimidated.  Plaintiff need not be aware the danger proceeds from a hostile human being.. If a concealed defendant sets off an explosion which puts the plaintiff in fear of life or safety the same interest is invaded.    Apparent ability, or put another way, well-founded fear or apprehension of harm, combined with an intent to instill that fear, was sufficient to support a conviction for common law assault. The understanding reflected the general trend of combining the elements of common law criminal assault and common law tort assault to form the definition of common law assault.  

The general nature of the offense of assault is set forth in Porsser, Law of Torts sec 10 (4th ed. 1971) as follows: The interest in freedom from apprehension of a harmful or offensive contact with the person, as distinguished from the contact itself, is protected by an action for the tort known as assault. No actual contact is necessary to it, and the plaintiff is protected against a purely mental disturbance of his personal integrity. Armes v. Campbell , 603 S.W.2d 249 ( tex . Civ. App., 1980)  

 Transfer of Intent Among People and Between Torts (TI) (pg. 46) 

Hall v. Mcbryde, 919 P.2d 910 (Colo. Ct. App. 1996) 1) One who acts intending an assault is liable for battery if a harmful or offensive contact occurs. One who acts intending a battery is liable for assault if apprehension of imminent harmful or offensive contact occurs. 2) One who acts intending to batter or assault one person and batters or assaults another is liable to the other for the invasion that person suffers. Combining these in the context of this case, one who acts intending to assault a person is liable to another person who suffers a battery from that act.

 Restatement 2d Torts-Section 21. Assault (1) An actor is subject to liability to another for assault if (a) s/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. 

Defenses to Assault and BatteryConsent1) An actor may relinquish his or her right to be free from harmful or offensive contacts. 2) McQuiggan treats consent as an element of the tort: Consent prevents the existence of  a tort. The absence of consent is the gist of the action. 3) Consent and withdrawal of consent are inferred from the plaintiffs manifestations of a willingness to be contacted and giving notice that all such conduct will no longer be tolerated. Example: McQuiggan v. Boy Scouts of America , 536 A. 2d 137 (Md. Ct. Sp. App. 1987) "paperclip game-hurt eye" Apparent consent will be ineffective as a defense if it was induced by fraudulent concealment of risks or if the consent was mistaken

about the nature and quality of the invasion intended. The result is that there is no consent. Example: Hogan v. Tavzel "genital warts" (pg. 52)  1. In the context of a fist fight as in other contexts, the reasonable appearance of consent will be the basis for the defense.2. Apparent consent may also be nullified as a defense if the other exceeds the boundaries of contact to which the inured person consented.  Example: Richard v. Mangion "boys fight at swing rope"  CONSENT: Agreement, approval, or permission as to some act or purpose, esp. given voluntarily by a competent person; legally effective assent. (Assent- Agreement, approval, or permission, esp. verbal or nonverbal conduct reasonable interpreted as willingness.)    Consent is an affirmative defense to: Assault, Battery , Other related torts such as, Defamation, Invasion of privacy, Conversion, Trespass   Consent may be a defense to a crime if the victim has the capacity to consent and if the consent negates an element of the crime or thwarts the harm that the law seeks to prevent.   EXPRESS CONSENT-CONSENT THAT IS CLEARLY AND UNMISTAKABLY STATED. IMPLIED CONSENT-CONSENT INFERRED FROM ONE’S CONDUCT RATHER THAN FROM ONE’S DIRECT EXPRESSION INFORMED CONSENT-A person’s agreement to allow something to happen, made with full knowledge of the risks involved and the alternatives. Patient’s knowing consequences of medical procedure and consents.  

 DEFENSE OF SELF AND OTHERS - THE PROPORTIONALITY PRINCIPLE

 1. Nature of privilege. A privilege is similar to that of a self defense in that it is recognized for the defense of third persons.  Example: When a master of the household defends the members of his family, or his servants from attack. Most of these cases involve members of the same family defending one another or the relation of master and servant. 2. The Closest questions concern whether defendant used reasonable force in the circumstances. 

 Defense of Self and others(six factors) – “BICDOT”

(1) belligerence of the attacker; (2) impossibility of a peaceful retreat;(3) character or reputation of the attacker; (4) difference in size and strength between the parties; (LARGE)(5) overt act by the attacker; and(6) threats of serious bodily harm. Example: Slayton v. McDonald "crazy boy get's shot when entering others home"  1. Deadly force may be used in self-defense by a person threatened with force inherently dangerous to life. 2. Test for permissible force is objective: fear must be founded on facts likely to produce similar emotions in reasonable people. 3.A person threatened with deadly force is not obliged to retreat before resorting to deadly force in self-defense.

 Some Considerations: 1. How much force the defendant is entitled to use and then2. How much force the defendant actually used. The first question is answered by identifying a level of force proportionate to the harm threatened.

 Rest. 2d Torts Section 65An Actor may use deadly force if he is “put in peril of death or serious bodily harm or ravishment.”

 Young v. Warren One may use the same degree of force to protect others as one would be entitled to use to protect ones self. The proportionality principle applies as does the objective test for whether force was necessary.

  

Intentional Infliction of Emotional Distress (pg. 72)ACT REQUIRMENTINTENT TO CAUSE DISTRESSINTEND THAT DISTRESS TO BE SEVEREACT MUST BE OUITRAGEOUS We will also discuss Reckless conduct There is an Act requirement, that defendant's conduct be extreme and outrageous, which is usually a jury question.

 The test for outrageousness is the effect on an ordinary person in that community with ordinary sensibilities unless defendant has knowledge of the injured persons peculiar susceptibility to emotional distress.  The actor must Intend to cause distress that is severe.  Plaintiff must prove that he or she actually suffered severe emotional distress. Zalnis v. Thoroughbred Datsun Car Co. (pg. 73)645 P.2d 292 (Colo. Ct. App. 1982(1) Defendant’s conduct must be extreme and outrageous,which is usually a jury question.(2) Test for outrageousness is effect on ordinary person withordinary sensibilities unless defendant has knowledge ofthe injured persons peculiar susceptibility to emotionaldistress.(3) If the defendant is in a position of actual or apparentauthority over the injured person, that is a factor to beconsidered when evaluating the outrageousness of theconduct.(4) Outrageous conduct may be a single act or a series ofincidents.

 Cochran v. Cochran, 76 Cal., Rptr. 2d 540 (Cal. Ct. App. 1998)

 Strauss v. Cilek, 418 N.W.2d 378, (Iowa Ct. App. 1987)"Cheating wife, hubby sues" Outrageous conduct is so extreme in degree as to gobeyond all possible bounds of decency, and to beregarded as atrocious, and utterly intolerable in acivilized society. It must be so extreme that arecitation of the facts of this case to an averagemember of the community would lead him or her toexclaim . . . Outrageous! The decision rests on whatan average member of the community would think.

 Severe Emotional Distress (pg. 78) Miller v. Willbanks (pg. 78) 8 S.W.3d 607(Tenn. 1999)"drug baby"Jurisdictions disagree about whether a plaintiff claiming intentional infliction of severe emotional distress must

introduce expert testimony to prove that he or she actually suffered severe emotional distress. The court says majority rule is that expert testimony is not required.  There is an Act requirement, that defendant’s conduct be extreme and outrageous, which is usually a jury question. The test for outrageousness is the effect on an ordinary person in that community with ordinary sensibilities unless defendant has knowledge of the injured persons peculiar susceptibility to emotional distress. The actor must Intend to cause distress that is severe* Plaintiff must prove that he or she actually suffered severe emotional distress. When is conduct outrageous? “BRIW”Be regarded as atrocious and utterly intolerable in a civilized societyReciting facts would cause average community member to exclaim outrageousIt is so extreme in degree as to go beyond all possible bounds of decencyWhat would an average member of community think?  

Intent and Recklessness (pg. 82) 

Recklessnessa)The person knows of the risk of harm created by the conduct or know facts that make that risk obvious to anyone in the persons situation, andb)The precaution that would eliminate or reduce that risk involves burdens that are so slight relative to the magnitude of the risk as to render the persons failure to adopt the precaution a demonstration of the persons indifference to the risk. Dana v. Oak Park Marina, Inc. (pg. 82)Conduct is reckless if an actor disregards a substantial probability of serious harm associated with the actors conduct.  Green v. Chicago Tribune Company, 675 N.E.2d 249 (Ill. App. Ct. 1996)Transferred Intent for Infliction of Emotional Distress (pg. 85)

 To state a cause of action for IIED, plaintiff must allege facts establishing:

1.The tribune's conduct was extreme and outrageous;2.The tribune either intended its conduct should inflict severe emotional distress, or knew a high probability existed its conduct would cause severe emotional distress; and

3.the Tribune's conduct in fact caused severe emotional distress.

 Restatement 2d of Torts § 46(2)Where [outrageous] conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotionaldistressa. to a member of such person’s immediate family who is present at the time, whether or not such distress results in bodily harm,orb. to any other person who is present at the time, if such distress results in bodily harm. For the tort of outrage, intent may be transferred from the person the defendant intended to suffer severe emotional distress to:(a) family members who were present at the time of the defendants conduct and(b) non-family members who were present at the time of the defendants conduct and suffered bodily harm in addition to severe emotionaldistress. The court (clearly) held that Mrs. Green stated a cause of action for intentional infliction of emotional distress for its actions on December 31 and January 1st - -as they were clear claims for her (barring her from seeing the son, featuring her private statements in the newspaper). The court held that the other two incidents could not supporther cause of action for intentional infliction of emotional distress via transferred intent, as she was not present at the time of the outrageous conduct. So the only claims that were supported were the ones where she was actually herself the victim of outrageous behavior.The court also held that the doctrine of transferred intent would NOT apply in this case to the other actions, specifically because she was not present.

 Trespass to Land

 

Thomas v. Harrahs Vicksburg Corp., 734- So.2d 312 (Miss. Ct. App. 1999)."Casino trespasses"Intention for trespass means that the actor must desire or be substantially certain that his or her act will lead to an invasion of the others interest in exclusive possession of real property. This intent is the desire or substantial certainty of being at the place on the land where the trespass occurred. It is the intent to enter upon the particular piece of land in question, irrespective of whether the actor knows or should know that he is not entitled toenter. Baker v. Shymkiv(Ohio 1983) "guy dies in driveway"A trespassers liability is not restricted to foreseeable damages. This result isconsistent with the rules for assault and battery, where the tortfeasor’s liability is based on the interference with the victims interest, the injury not the harm. 

Trespass to ChattelsSix Factorsa)extent and duration of the actors exercise of dominion and controlb) the actors intent to assert a right in fact inconsistent with the others right of controlc)the actors good faithd)the extent and duration of the resulting interference with the others right of controle) the harm done to the chattelf) the inconvenience and expense caused to the other What is dispossession under trespass to chattel? “BDOT”Barring owner accessDestroying the chattelObtaining possession by fraudTaking chattel without consent Koepnick v. Sears Roebuck & Company "guy said they trespassed to chattels when they got in his truck" The tort of trespass to chattels is designed to protect ones interest in freedom from another’s dispossessing or using or intermeddling with ones personal property.Dispossession interferes with another’s possessory interest in the property by acts such as taking control over the others property.

 

ConversionUnited States v. Arora, 860 F.Supp.-1091 (D. Md. 1994)."kill cells"While a trespass to chattel nominally covers the impairment of the condition, quality, or value of chattels, the intentional tort of conversion applies to acts that would otherwise be trespasses but are particularly serious, ones that so severely interfere with the right of another that the actor may justly be required to pay the other the full value of the chattel. Factors when determining if Conversion has occurred – “EDDEHI”(1) Extent and duration of the actor’s exercise of dominion and control (2) Defendant’s intent to assert a right of control; (3) Defendant’s good faith(4) Extent and duration of the resulting interference; (5) Harm done to the chattel; and (6) Inconvenience and expense caused to the other. 

Privileges: Private and Public Necessity  Vincent v. Lake Erie Transportation Co., 124 N.W. 221(Minn. 1910)An actor who intentionally interferes with another's interest in possession of land in an emergency in order to prevent harm to the actor and the actors property is not liable for nominal or punitive damages as a trespasser might be, but is liable to the possessor of land for all actual damages caused.  Marty v. State of Idaho, 786 P.2d 524 (Idaho 1989).Public necessity doctrine: The common law gives those acting on behalf of the public a privilege to enter private land when exercising reasonable care in an emergency that protects them from all liability. State statutes, as in this case, sometimes change this doctrine designating certain officials who can act with immunity in an emergency and describing conditions they must meet to retain their immunity. Defense of land and personal property , pg. 66  Woodard v. Turnipseed 1. Reasonable but not deadly force may be used to protect an interest in property from reasonably perceived threat to that interest. From the concurring opinion.

2. A person in possession of property has a privilege to use reasonable force if necessary to eject a trespasser. 3. This privilege to eject a trespasser applies only after the possessor has demanded that the other leave, unless the possessor reasonably believes such a demand would be useless or too late to prevent substantial harm.

  

NegligenceA Plaintiff may recover damages if the defendant owed the plaintiff a DUTY to act in a certain way, BREACHED the duty to act to the standard required, and CAUSED some HARM to the plaintiff.

 DUTYBREACHCAUSATIONHARM

 Approaches to a STANDARD OF CONDUCT1.)A defendants own sincere judgment;2.)Reasonable person's conduct; or3.)Detailed rules for activity. The "Reasonable Person" StandardDefining and Justifying the Reasonable Person Standard Negligent conduct is conduct that is worse than the conduct a reasonable prudent person would do.A person who does the best that he or she can do may still be negligent, if his or her conduct is less careful than a reasonable prudent persons conduct would have been. "Vaughan v. Menlove"

 Reasonable prudence depends greatly on the knowledge an actor possesses or should possess. Opening a crate of nitroglycerine with a mallet can be reasonable, if the chemicals dangerous qualities are reasonably unknown to the actor. "Parrot v. Wells Fargo & Co."

 Perspective: Social Costs and BenefitsB<PL

 Reasonable Conduct as a Balancing of Costs and BenefitsThe "Learned Hand Test," though not explicitly part of a state's law, may be useful in estimating the legitimacy of a jury's verdict. It may provide a sensible method of defining reasonable conduct. "McCarty v. Pheasant Run, Inc."

The Range of Application of the Reasonable Person Standard

Especially Dangerous Instrumentalities The reasonable care standard applies in cases that involve dangerous substances and a specialized instruction requiring something like extraordinary care is not necessary, since reasonable care in a context of high danger will require care in proportion to the danger involved. "Stewart v. Motts" page 100 

Should We Impose a Duty – “FEDCAMP”(a) Foreseeability of harm; (f) extent of the burden to the defendant and the community of imposing a duty;(b) degree of certainty that the victim suffered the harm; (c) Closeness of connection between defendants conduct and harm (proximate cause); (g) availability, cost, and prevalence of insurance.(d) moral blame attached to defendants conduct; (e) policy of preventing future harm; 

EmergenciesOnly in cases which…The party seeking the instruction had not been negligent prior to the emergency, The emergency had come about suddenly and without warning, andReaction to the emergency was spontaneous without time for reflection. Myhaver v. Knutson (Ariz. 1997)-Sudden emergency instruction is used in some jurisdictions to encourage jury to be generous in evaluating conduct of actor who is faced with a sudden emergency for which the actor has no blame.-Critics believe the instruction is unwise, but many courts allow it.-This court declines to overrule a case in which it was used, but urges future courts to use it sparingly. 

An Actor's Knowledge and SkillIf an actor's attributes such as attention, perception, intelligence, and judgment are superior to those of a typical individual, those traits must be considered in evaluating whether the actor's conduct has been reasonable. "Cervelli v. Graves" pg. 107 Exerpt from Pediatrics

Snowmobiling is a popular family sport, with annual expenditures over 9 billion. The size and speed of snowmobiles make them potentially dangerous to children. Pediatric snowmobile related trauma has not been studied in the US. Nonfatal injuries most often involved ejection from the snowmobile but striking stationary object was the most common mechanism in fatal crashes. The review of state legislation revealed that few age restriction or helmet laws exist. Children as young as 8 years old may legally operate a snowmobile in some states. Often restrictions do not apply to snowmobile use on private property, where 43 of pediatric snowmobile related injuries occurred. Head, neck, and face injuries are common nonfatal injuries and are the most common cause of death. State legislation often lacks age restrictions on private property, and laws requiring helmet use are rare.  

Youth: Special Treatment for MinorsA child's conduct should be evaluated with a standard that compares it to conduct of a reasonably careful child of the same age, intelligence, maturity, training and experience. This rule is withdrawn when a child's activity is inherently dangerous. "Robinson v. Lindsay" pg. 111 (A TIME) Age-sameTrainingIntelligenceMaturityExperience 

Perspective: Fairness to Victims?A jury uses its own knowledge of children when it applies the child's standard of care, but must base its fact finding on evidence that informs it of the attributes of the particular child whose conduct it must evaluate. "Peterson v. Taylor" pg. 114 

Physical and Mental DisabilitiesPoyner v. Loftus 119Creasy v. Rusk 123 For a physically disabled actor, the reasonable person test is applied with reference to the disability.  Notes: If you get drunk, then we will ignore it, and use the reasonable person standard. "physical we take into account,

mental we do not take into account" It would be the reasonable person with that disability.  

Public Policy Reasons making disabled people liable:-Allocate losses between two innocent parties-Provide incentives to those responsible for [them] to prevent harm-Remove inducements to fake a disability-Avoid administrative problems of assessing disabilities-Forces person to pay if they are to live in the world. 

PUBLIC POLICY REASONS For holding the mentally disabled to the same standard of care: “People Forbidden Another Reasonable Approach”PFARA1.Provide incentives to those responsible for them to prevent harm2.Forces persons to pay if they “are to live in the world.”3.Allocated losses between two innocent parties4.Remove inducements to fake a disability4.Avoid administrative problems of assessing disabilities

 Tort law ordinarily makes no allowance, in terms of a standard of care, for an actors mental disability. Courts may moderate this rule in particular circumstances, such as a setting in which the mentally disabled persons opponent ought not to be owed a duty by the mentally disabled person.

 Notes: Mental impairments, sometimes the jury will take a sudden mental impairment into consideration.

 Recklessness

To be reckless, conduct must involve an unreasonable or intentional disregard of a risk that presents a high degree of probability that substantial harm will result. Notes: What kind of harm? What is reckless? They tell us what is reckless, what is not reckless. Give many examples. Revolver holds 6 bullets, put it to head and click it, 1 in 6 chance, this is reckless because there a chance of death. When u talk about losing a life it's hard to really decide.   Notes: A person acts with recklessness in engaging in conduct if:

a)The person knows of the risk of harm created by the conduct or knows facts that make that risk obvious to anyone in the person's situation, andb)The precaution that would eliminate or reduce that risk involves burdens that are so slight relative to the magnitude of the risk as to render the person's failure to adopt the precaution a demonstration of the person's indifference to the risk.

 Professionals: page 417

Professional Standard's Basic Definition and RationaleIndustry custom is considered but not controlling, in professional cases the industry custom is controlling.

 For professional malpractice, custom sets the standard.If expert testimony can establish the customary or accepted practice standard in the profession, that standard fully describes the professional's obligatory level of care.

 Who is a professional? “WIMP”Work is intellectual and non-routineInvolves consistent exercise of discretion & judgmentMust not be standardized in terms of timePosition acquired by specialized study in school Testimony about what should have been done, if it advocates deviation from customary care, cannot overcome the controlling power of custom (and ought to be treated as not relevant) "Osborne v. Irwin Memorial Blood Bank"

 Nowatske v. Osterloh "detached retina, goes blind after surgery"Professionals have a duty to exercise reasonable care.

 Reasonable care is determined by comparing an actor's conduct with the conduct of others similarly situated and with similar professional training.

 The court concludes that these propositions are different from saying that the professions sets its own standard, since a jury could find that a standard failed to recognize the state of medical science.

 Rossell v. Volkswagen of America "Battery"Notes: Court looks at some of the policy. They don't want people to care for themselves and avoid caring for the people.

 The professional standard should be used where it will impose an even higher standard of care than that of the reasonable prudent person.

 The standard should be applied for actors whose callings have professional obligations, relationships with clients, and freedom from commercial pressures.

 29 USCS 152 (12) Professional The work must be predominantly intellectual and non-routine…Involving the consistent exercise of discretion and judgmentAnd must not be standardized in terms of time.The position also must require knowledge customarily acquired by specialized study in an institution of higher learning.

 Geographis Scope of Professional Standard

Vergara v. DoanThe professional standard has been applied with locality rule, modified locality rule, and national standard.The national standard fits modern conditions best.  Locality rule and Modified Local RuleNotes: Problem with strict - if u have to find an expert witness there may only be 2 doctors in the little town. One dr. will not want to testify against the other. National standard of care- Doctor must be a professional, but under the same circumstances.

1Strict Locality (page 433)2Modified Locality Rule (example on page 433)3National Standard.

 Slide: The professional standard has been applied with locality rule, modified locality rule, and national standard.

 The national standard fits modern conditions best.

 Geographic Scope of the Professional StandardThe strict locality rule particularly had drawbacks: it was hard to find neighbor doctors to testify against neighbor doctors, and a small community might indulge in specially poor practices.

 The modified locality rule leads to waste of time and difficult decisions about which communities are similar to each other.

 

Modern training makes a national standard appropriate. While applying that standard, a jury may consider advances in the profession, availability of facilities, and whether the defendant is a specialist or a general practitioner.

  

Strict locality rule: measure the d conduct against dr. in the same community (all drs. In FW)Modified locality rule: measures defs conduct against drs. Of similar localities (arlington, other cities of with same population, technology,

 Common Knowledge

McGraw v. St. Joseph's Hospital "Big Man Falls"Notes: You need expert testimony to prove the professional standard. Physicians will not always be held to professional standards, when they are doing normal layperson things, jury will see what is reasonable.

 A common knowledge exception withdraws the requirement of expert testimony about professional standards in some medical malpractice cases.

 Those cases involve gross lack of care, non-complex matters of diagnosis, and custodial or routine hospital care.

 Informed Consent

Largey v. Rothman "Operation gone wrong, plaintiff signed consent but was not informed of all risks"Slides:Physicians owe patients a duty of informed consent that mandates providing patients with information prior to patients agreeing to medical work.

 One view defines the needed information according to a professional standard; another view asks what information a prudent patient would want to have.

 Causation is an element in these cases, so that whatever standard defines the required information, a plaintiff who claims injury because of inadequate information must show that the lack of information caused the patient to undergo the procedure.

 Measure dr.

 OWNERS AND OCCUPIERS OF LANDTraditional Rules:TRESPASSERS

 Ryals v. United States Steel Corporation "Thief killed in mine"(DBCD)For Negligence you must:Prove DUTYPROVE BREECHCAUSATIONDAMAGES

 "IF A PERSON COMMITS A CRIME THEY ARE HELD TO A DIFFERENT STANDARD"

 In most places, the duty a landowner owes to a trespasser is to refrain from intentional or wanton injurious conduct.

 Alabama's Supreme Court recognizes this doctrine, but elaborates it to create a sub category of trespassers to whom a lesser duty is owed. The subcategory is trespassers who enter the land to commit a crime.

 Merrill v. Central Maine Power Company, "Attractive Nuisance, Ben Dover case"Attractive nuisance doctrine protects some child trespassers from application of the ordinary limited duty rules applicable to trespasser-landowner cases.

 A child's lack of knowledge of the risk is a crucial element, although the restatement identifies a group of factors for application of the doctrine.

 Swimming pools and ponds are not attractive nuisances??

 North Hardin Developers, Inc. v. Corkran "injured by horse on acreage"The unreasonable danger aspect of the attractive nuisance doctrine can be crucial.Also, judicial resolution of the scope of danger can preclude application of the attractive nuisance doctrine that would otherwise have allowed a jury to evaluate the defendant's conduct.

 Licensees and Invitees

Licensee: Knorpp v. Hale "cutting a tree at in laws and dies"A land entrant is an licensee if he or she is invited to enter or remain on the land;

1.As a member of the public for a purpose for which the land is held open to the public; or

2.For a purpose connected with business dealings with the possessor of the land.

 A land entrant is a licensee if he or she is invited in any other way of for any other purpose. Social guests are usually licensees.

 Invitee:Duty owed to invitee is to exercise ordinary care with respect to risks the land possessor knows or should know with reasonable inspection.

 Duty to licensee is ordinary care to warn about or make safe a danger that the possessor knows and the licensee does not know…. More..

 Example: Church people = licensee. If you were going into the church to buy a cake then you would be an invitee. When u just go to church you would be licensee. If you are an employee then u can't really sue cause u will get work comp.

 Richardson v. The Commodore, Inc. "ceiling falls on guy"A land possessor owes invitee a duty to use reasonable care to protect an invitee against an unreasonable risk of harm that the possessor knows or should know.

 Notes: The "possessor" has a duty to warn of any forseeable dangers in the home? When u have someone coming into ur home you may have a release or waiver to release u from any accidents that occur, or forcing them to pay for anything that they ruin in your home. Duty - land possessors, special relationships like employee/employer, inn keepers, duty is modified for professionals, etc...Breech -Causation-Damage-

According to Cordozo you only have a duty if it was forseeable. Says u have to build reasonable,

 Slip-and-Fall Cases

Nisivoccia v. Glass Gardens, Inc. "slip and fall on the grape"To recover in a slip and fall case, a plaintiff must do more than show that a hazard was on the floor of a defendant's premises. The plaintiff must show that the hazard was unreasonable. This requires a finding that the hazard was known or reasonably knowable to the defendant.

 The constructive notice doctrine allows a plaintiff to satisfy the reasonably knowable element with circumstantial evidence about the hazard itself (supporting a finding that the hazard was on the floor for a significant period of time)

  The mode of operation doctrine allows a plaintiff to satisfy that element with evidence showing the overall nature of the defendants enterprise (supporting a finding that hazards are always likely to be on the floor.

 Knew or should have known. We are going to look at the lapse of times, how long were the items on the floor, and how long did the def. have to move or clean the items.

 Open and Obvious Dangers

Valance v. Vi-Doug, Inc. "super windy"Land occupiers ordinarily have no duties with regard to natural accumulations of snow or water. Also, in many jurisdictions, land occupiers are free from obligations with regard to open and obvious hazards.

 Criminal Conduct by Third Parties

Seibert v. Vic Regnier Builders Inc. "woman shot in parking lot"Landowners and occupiers owe a duty to invitees to protect them from foreseeable criminal conduct by third parties. Courts use different tests for defining the foreseeability required for this duty; prior similar incidents and totality of circumstances.

 Liability to Tenants and Their Guests

Borders v. Roseberry1.Undisclosed dangerous conditions known to lessor and unknown

to lessee

2.Conditions dangers to persons outside the premises present at time of lease

3.Premises leased for admission of the public.4.Parts of premises retained in lessors control.5.Instances where lessor contracts to repair. 6.Instances of lessor's negligence in making repairs.

 Landlords generally are immune from liability to tenants and tenants guests for injuries related to dangerous conditions on the leased premises, although a number of exceptions limit the immunity.

 REVIEWPage 487 REVIEW!!!!!! Note 3. LOOK OVER!!! Battery (single or double)Is this person an invitee or a licensee? Just because something is moral, does not mean that u have to do it. Like a dr. It is very likely that a car that is susceptible to , prove it

 Modern Approaches:Rejection of the Three-Category System

Nelson v. Freeland 'trip over stick"The trespasser licensee invitee system has been hard to administer and does not seem to provide fair results in cases involving legal entrants on land.

 The trichotomy is rejected and a two category system is adopted, treating entrants in two classes; legal entrants and non legal entrants.

 A duty of reasonable care is owed to legal entrants.  

 Changes in Landlord-Tenants Doctrines

Newton v. MagilSome jurisdiction like this one have eliminated the traditional landlord immunity in landlord tenant suits and replaced it with a general duty of reasonable care owed by landlords to tenants.

 Slides:A land entrant is an invitee if he or she is invited to enter or remain on the land:

1.As a member of the public for a purpose for which the land is held open to the public; or

2.For a purpose connected with business dealing with the possessor of the land.

 A land entrant is a licensee is he or she is invited in any other way or for any other purposes. Social guests are usually licensees.

 Duty a landowner owes to a trespasser is to refrain from intentional or wanton injurious conduct.

 Duty a landowner owes an invitee is to exercise ordinary care with respect to risks the land possessor knows or should know with reasonable inspection.

 Duty a landowner owes a licensee is ordinary care to warn about or make safe a danger that the possessor knows and the licensee does not know. The trespasser-licensee-invitee system has become difficult to administer and does not always provide fair results in cases involving legal entrants on land.  The trichotomy has been rejected by courts and legislatures in many jurisdictions, and a two-category system is usually adopted, treating entrants in two classes: legal entrants and non-legal entrants. A duty of reasonable care is owed to legal entrants.

 Landlords generally are immune from liability to tenants and tenants guests for injuries related to dangerous conditions on the leased premises, although a number of exceptions limit the immunity.

1.Undisclosed dangerous conditions known to lessor and unknown to lessee.

2.Conditions dangers to persons outside the premises present at time of lease.

3.Premises leased for admission of the public.4.Parts of premises retained in lessor's control. 5.Instances where lessor contracts to repair.6.Instances of lessor's negligence in making repairs.

 Six exemptions under landlord immunity – “FW PPEN”(1) Failure to disclose a dangerous condition known to the lessor and unknown to the lessee; (2) where lessor contracts to repair;

(3) premises is leased for admission of the public; (4) parts of land retained in lessor’s control; (5) Existence of dangerous conditions to persons outside the leased premises on the premises at the time of the lease; (6) negligence by lessor in making repairs.

  

Special Duty RulesDuty to rescue or protect: General No-Duty-to-Rescue Rule and Its Exceptions

General Rule: No duty to rescue (there are some exceptions.  

Lundy v. Adamar of New Jersey, Inc. pg. 507An individual has no duty to rescue or offer first aid to another individual, but his general rule is subject to exceptions for innkeepers, common carriers, and others who invite the public onto their land. Def. covered by the exception must use reasonable care to aid a sick injured individual.

 Notes: Dr. could have a duty if they were a patient, if they caused the accident, just because it is moral does not mean that u have to.

 Statutes: Good SamaritansAlabama Code 6-5-332 (2002)Liability of physician, dentist, nurse, or emergency medical technician for rendering emergency care.  Mississippi Code 1972 Annotated 73-25-37 (1972)Each statue is intended to provide that a person who is within its coverage has limited liability for acts or omissions in rendering first air or emergency care.

 The Mississippi statute would apply to any person who gives emergency aid. The Alabama statute has a long list of people covered but does not have a phrase like or any other person as the Mississippi statute does.  Special Duty – “SB BRIL FACE” (Look at this??)Severity of risksBalance of social interest involvedBurden on DefendantRelationship with partiesInability of plaintiff to protect himselfLikelihood of occurrenceForeseeability of harm

Ability to comply with dutyCost of providing protectionEconomic benefit to defendant 

Statute: Good Samaritan law duty to assistDifferences among statutes. The Minnesota and Rhode Island statutes apply to one who is at the scene of an emergency. The vermont and wisconsin statutes apply when one has knowledge of another's peril, regardless of how one acquires that knowledge. The descriptions of required conduct provided in these statutes are quite similar. They require reasonable assistance, and withdraw that requirement if the bystander would be placed in personal danger by providing that assistance.

 In some states there are duties to exist. Or an actual duty to rescue. Most jurisdictions are not doing this.

 Obligations to Rescuers

McCoy v. American Suzuki Motor Corp.,One who creates a situation of peril has a duty to an individual who attempts to rescue in response to that situation. Normal proximate cause rules apply in an action brought by a rescuer.  Rescuer Status

1.The defendant was negligent to the person rescued, and such negligence caused the peril

2.The peril or appearance of peril was imminent3.A reasonably prudent person would have concluded such peril

or appearance of peril existed4.The rescuer acted with reasonable care in effectuating the

rescue. 

When are you a Rescuer? – “DAPR”Defendant was negligent to the person rescued and such negligence caused the perilActing of reasonable care by the rescuerPeril or appearance of peril was imminentReasonably prudent person would have concluded that the peril or appearance of peril existed

 Moody v. Delta Western, Inc. The firefighter rule bars professional rescuers like police or firefighters from negligence based recovery against those whose negligent conduct creates an occasion for their work.

 Protecting Third Parties from Criminal Attacks or Disease

Emerich v. Philadelphia Center for Human Development, inc. "crazy kills girlfriend"When a mental health care professional identifies or should identify a specific and immediate threat to a third party from the professionals patient, the professional must exercise reasonable care to protect that third party with a warning.

 Duty of Parent to control conduct of child (section 316)A parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them, if the parent

(a) knows or has reason to know that he has the ability to control his child, and(b) knows or should know of the necessity and opportunity for exercising such control.

 Duty of Master to control conduct of servant (section 317)A master is under a duty to exercise reasonable care so to control his servant while acting outside the scope of his employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if

(a) the servant(i) is upon the premises in possession of the master or upon which the servant is privileged to enter only as his servant, or(ii) is using a chattel of the master, and

 (b) the master

(i) knows or has reason to know that he has the ability to control his servant, and(ii) knows or should know of the necessity and opportunity for exercising such control.

 Duty of possessor of land of land or chattels to control conduct of licensee (section 318)If the actor permits a third person to use land or chattels in his possession otherwise than as a servant, he is, if present, under a duty to exercise reasonable care so to control the conduct of the third person as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if the actor

(a) knows or has reason to know that he has the ability to control the third person, and(b) knows or should know of the necessity and opportunity for exercising such control.  

Duty of Physician when there is disease. "Rocky Mountain Fever"Physician who should have known patient had disease that is found in geographic clusters had duty to warn patients family that they might be at risk of contracting the same disease.

 Physicians may be liable to persons infected by a patient, if the physician negligently fails to diagnose a contagious disease, or having diagnosed the illness, fails to warn family members or others who are foreseeable at risk of exposure.

 Duty Limited by Type of HarmNegligently Inflicted Emotional Distress

Robb v. The PA Railroad Co. "she is emotionally distressed because a train does not hit her??"

1.Negligent conduct by def. 2.Some impact on the plaintiff due to the defendants negligent

conduct3.Emotional distress suffered by the plaintiff 4.Physical manifestations of the plaintiffs emotional distress.

 The court compares the impact rule and zone of danger rules for negligent infliction of emotional distress cases. It selects the zone of danger rule.

 Impact Rule:

a. Since fright alone does not give rise to a cause of action, the consequences of fright will not give rise to a cause of action

b. The physical consequences of fright are too remote and that the requisite causal connection is unprovable.

c. Public policy and expediency demand that there be no recovery for the physical consequences of fright in the absence of a contemporaneous physical injury ( fright is subjectgive, so it is too easy to disprove thus it is a Pandora's Box)

 Zone of Danger Rule:

a. Where negligence proximately caused fright, in one within the immediate area of physical danger from that negligence, which in turn produced physical consequences

such as would be elements of damage if a bodily injury has been suffered, the injured party is entitled to recover.

 Bystander Recovery Plaintiff (SAC)Bystander Recovery allows an individual a cause of action for emotional distress caused by seeing a person seriously injured by a defendants negligence, even if the individual was outside the zone of danger created by the defendants negligence, if the individual. Sees the injuryAt the sceneClose familiar relationship with the seriously injured person

 Example: kid sees his sister get run over by the garbage truck "fiancee could not sue"

"dog gets shot does not count, it is property" 

In Texas no IED alone, must be Tort along with that.  

Mere Economic HarmMajority Rule: A plaintiff who suffers economic harm related to a defendants negligent conduct but who is free from physical impact to self or property related to that conduct has no cause of action for the economic harm.  Exception to Special Relationship Rule – to mere economic harm “TACT”Plaintiff particularly foreseeable in terms of:Type of personApproximate member in the classCertainty of their presenceType of economic expectations that would be disrupted

 Example: Wall falls down building on 55th Avenue in Madison Gourmet "building falling"

 Minority Rule: Mere economic loss claim may be actionable where the plaintiff was particularly foreseeable in terms of type of person, certainty of their presence, approximate numbers of those in the class, and type of economic expectations that would be disrupted.

 Example : an evacuation of a business leads to loss. People Express Airlines Inc. v. Consolidated Rail Corp. "evacuation leads to loss"

 

 Wrongful Pregnancy , Wrongful Birth, Wrongful Life

1.Wrongful pregnancy-when a failed sterilization procedure leads to the birth of a normal child.2.Wrongful Birth- Parents claim that they would have aborted the pregnancy if they had received accurate genetic or diagnostic information.3.Wrongful Life- An action by a child who is born with birth defects. 4.Medical malpractice principles support a mother's recovery for unusual expenses related to the support of a child born with birth defects, where def. negligence prevented the mother from terminating the pregnancy. 5.Statutes generally affect when a person can recover and what damages are recoverable.6.These principles may cause physicians to be overly cautious and order tests that are not necessary to protect themselves.

  

Primary Assumption of Risk.a.Primary assumption of risk means that a defendant either owed

no duty or did not breach any duty because the risks were obvious to the plaintiff could have chosen to avoid the risks by not participating in the activity or the risks are inherent risks of an activity that can not be eliminated with reasonable care.

 Clover v. Snowbird Ski Resort "ski guys ignores sign, at high rate and hits a lady on the head"A statute that bars liability for injuries caused by an inherent risk of skiing applies to risks that are desired by participants and risks that cannot be eliminated with reasonable care.

 A no-duty rule applies to operators of baseball facilities for inherent risks associated with operating such a facility. Example: Baseball

 Limits on Liability: duty and proximate cause… You need to have limits on liability so that people won't be liable for EVERYTHING…

 Hegyes v. Unjian Enterprises, Inc. (page 229)Notes: But for is a very minimal test, such as in the baby being born early because of the shunt. This case would pass the but for test. But for the accident, no shunt, but for the shunt, no baby born early. What is the limit to forseeability? This case adds to Palsgraf.

 "Duty is typically limited to those types of plaintiffs and types of harms reasonably foreseeable to a person in the defendant's position at the time of the defendant's negligent conduct."

 Dykema v. Gus Macker Enterprises, Inc. "basketball and tornado" "Generally, one person has no duty to aid or protect another. One exception: a duty may arise if there is a special relationship between the parties based on one person entrusting himself to the control and protection of the other with a consequent loss of control to protect himself."

 Examples of Special Relationship (employer-employee, inn keeper-guests, landlord-tenant, common carriers (planes, trains, automobiles, boats), parent-child) there was no special relationship when he did not pay.

 One has some control over the safety of others. CONTROL is something that we look for.

 Example of Cowboys Stadium and the basketball game. Cowboys you would be paying to be there, basketball game you would not have to pay, and there would not be control. If u paid money if you want to leave you may not be able to come back, in this free event you could come and go as you pleased.

 No duty to help others but there are exceptions. A duty may be found if there is a special relationship between the plaintiff and the defendant.

 Duty to warn is good, but if you go out the back door, the movie theater can't do anything to warn you.

 Graff v. Beard "social host and drunk driver" (remember majority and minority rule!!" (page 233)Dram Shop statutes impose a duty on commercial vendors of alcohol to third parties injured by intoxicated patrons, but states are split on whether such a duty should be imposed on social hosts. The court in this case finds imposition of such a duty unrealistic and impractical.

 Notes: In Texas they limit the duty of care to the experts. Social host may have a moral duty but no legal duty.

 Majority- Texas Rules: no social host liability)

Minority-Social host liability  

Dram shop statutes impose a duty on commercial vendors of alcohol to third parties injured by intoxicated patrons, but states are split on whether such a duty should be imposed on social hosts. The court in this case finds imposition of such a duty unrealistic and impractical.

 N.J. Stat. 2A:15-5.6 (2000)Exclusive civil remedy for damages in accident involving vehicle resulting from negligent provision of alcoholic beverages by social host to person of legal age.

a. This act shall be the exclusive civil remedy for personal injury or property damage resulting from the negligent provision of alcoholic beverages by a social host to a person who has attained the legal age to purchase and consume alcohol.

b. A person who sustains boidly injury or injury to real or personal property as a result of the negligent provision of alcoholic beverages by a social host to a person who has attained the legal age to purchase and consume alcoholic beverages may recover damages from a social host only if:

 1.The social host willfully and knowingly provided alcoholic

beverages either:a. To a person who was visibly intoxicated in the social hosts

presence orb. To a person who was visibly intoxicated under

circumstances manifesting reckless disregard of the consequences as affecting the life or property of another, and

 2.The social host provided alcoholic beverages to the visibly

intoxicated person under circumstances which created an unreasonable risk of foreseeable harm to the life or property of another, and the social host failed to to exercise reasonable care and diligence to avoid the foreseeable risk and

3.The injury arose out of an accident caused by the negligent operation of a vehicle by the visibly intoxicated person who was provided alcoholic beverages by a social host.

  

Eisel v. Board of Education of Montgomery County "little girl kills her self and counselor had some notice"1)Foreseeability of harm2)Degree of certainty that the victim suffered the harm

3)Closeness of connection between defendants conduct and harm (proximate cause),4)Moral blame attached to defendant's conduct,5)The policy of preventing future harm,6)The extent of the burden to the defendant and the community of imposing a duty, and,7)Availability, cost, and prevalence of insurance.

 When there is no precedent for imposing a duty on an actor, often because a victim has a novel factual theory, courts consider a variety of factors to decide whether it is sensible public policy to impose a duty.

 Proving Breach

Defendant's conduct did not rise to the level of standard required andDefendant did not act reasonably.

 Violation of a Statute

Martin v. Herzog "buggy accident"An unexcused violation of statute (a breach of a statutory duty) is considered equal to negligence ("n") Negligence per se establishes the duty and breach in a cause of action in negligence. The court reminds that causation must still be proved.

 Notes: Negligence per se does not mean you win, it is only a starting point. Example of Negligence per se no good in this case. Page 139. Guy dies in the indoor swimming pool. Family sues hotel. Hotel is not held liable because even if they had CPR guy there, they don't really know how the guy died.

 Thomas v. McDonald "car on the side of the road causes an accident" (May be on Test?)-For negligence per se to apply, the proponent must show that he or she is a member of the class the statute was meant to protect and that the harm suffered is the kind of harm the statue was meant to avoid. -Proponent must establish that the statute actually was violated. - "Negligence per se" They failed to meet the standard when they did not put out the flashing lights, or other devices to warn others.

 

Five Criteria that a plaintiff must prove in a negligence per se case in order to prevail. (TEST Material!!!)

1.The defendant violated the particular statute2.The statute was enacted to protect a specific class of persons3.The plaintiff is a member of that class4.The plaintiffs injury is of the sort the statute was enacted to

prevent and5.The statute was intended to regulate members of defendant's

class.  

Wawanesa Mutual Insurance Co. v. MatlockUnless legislation was intended to prevent the type of harm that occurred, proof of statutory violation has no relevance in a tort case.

Sikora v. Wenzel, Ohio 20001)The procedural effect of proof of violation of a statute may depend on the jurisdictions choice among three possibilities: conclusive proof of negligence, proof of negligence that may be negated by excuse (negligence per se), or merely some evidence of negligence2)Where negligence per se treatment is appropriate, reasonable ignorance of a statutory violation is recognized as an excuse.

 

Type of Jurisdictions

No excuse evidence offered

Some excuse evidence offered

Some Evidence

Case may go to jury; jury may find negligence

Case may go to jury; jury may find negligence

Prima Facie

Case must go to jury; jury may find negligence, or in rebuttable presumption jurisdictions, jury must find negligence

Case must go to jury; jury may find negligence

Negligenc Case must go to Case must

e per se jury; jury must find negligence

go to jury; jury may find negligence.

  

Negligence per se: The statute must be designed to protect against the kind of harm which occurred.

 Prima Facie: The establishment of a legally required rebuttable presumption. 2. A party's production of enough evidence to allow the fact-trier to infer the fact at issue and rule in the party's favor.

 Rebuttal: In court contradiction of an adverse party's evidence. 2. The time given to a party to present contradictory evidence or arguments.

 Industry Custom

The T.J. Hooper "tugboats and barges sink" (153)Proof of compliance with industry custom is relevant to the question of reasonableness of conduct, but is not controlling on that issue.

 Elledge v. Richland/Lexington School District Five (154)"industry custom - kid got hurt on monkey bars at school""school monkey-ing with the monkey bars" A safety code adopted by an industry group is admissible evidence that can support expert testimony about the proper standard of care.

Wal-Mart Stores, Inc. v. Wright, "slip and fall"(157)A company's own rules or policies show the standard of care the actor has chosen to impose on itself. Those rules or policies may represent care greater than a reasonable care standard would require. Violation of one's own safety standards is not necessarily equivalent to a violation of the reasonable person standard.

 Res Ipsa Loquitur "the thing speaks for itself"

1)The type of injury was usually associated with negligence,2)The defendant had exclusive control of whatever caused the injury,

3)The plaintiff had made not causal contribution to the harm, and4)The defendant's access to information about the event was superior to the plaintiffs. (we use this when we do not know the facts. We are not sure what happened so we use Res Ipsa Loquitur)

 Byrne v. Boadle "flour falls out of the window and hits guy on head"It can't be proven but barrels are usually not dropped out of a window unless someone was negligent in handling barrels.

 Proof that an injury occurred in circumstances that make it very likely that it was caused by a def. negligence can be treated as equivalent to proof that a def. was negligent.

 Shull v. B.F. Goodrich Co. "truck driver goes to pick up tires and gets hurt"a)The exclusive control element of the res ipsa loquitur doctrine can be satisfied even if the def. is not in control of the injury causing instrumentality at the time of injury, so long as the def. was in control of it at a time when negligence related to the injury was likely to have taken place.

 Dover Elevator Co. v. Swann "guy gets hurt in the elevator"Courts may refuse to allow a res ipsa instruction where a plaintiff has a factual theory of what the defendant did that was negligent and offers evidence to prove the defendant was negligent in some particular way.

 Expert inferred, in Dover he said pretty much what happened.

 Legal Cause: Cause in Fact

Negligence 

Legal Cause:

Cause in Fact

Negligence: Duty

  Breach

  Causation

  a. cause in fact + Proximate Cause =

Legal Cause

  Harm and Damage

 CAUSE IN FACT: THE BUT FOR TEST 

Cay v. State of Louisiana, Dept. of Transportation and Development "falling off bridge case"We need Preponderance not Beyond a reasonable doubt!Must be the accident caused by the negligence. You can have a zillion causes in fact. There can also be more than one proximate cause or legal cause.

 1)Plaintiff must prove, by a preponderance of the evidence, that the defendants negligence was a cause in fact of the plaintiffs harm. 2)There may be more than one cause in fact here, both the defendants negligence and the plaintiffs negligence were causes in fact.3)Cause in fact means that the harm would not have occurred but for the act in question, here, no harm if the railing had been higher4)Where specific evidence is lacking, cause in fact may be inferred by considering the likely ways the harm could have come about, the likelihood of each course of events, and the role the act in question played in each.

 Here, the harm may have been caused by:1.Suicide2.the intentional act of a third party3.being hit by a vehicle, or4.accident Lyons v. Midnight Sun Transportation Services, Inc. " lady pulls out of parking lot and gets hit"Expert said either way, negligent or not, she would have still been hurt. That's why it was not cause in fact. But-for-causation-test is really easy to find.

 Even if an actor was negligent, his or her act must separately be proved to be a cause-in-fact.

 Multiple sufficient causes current tortfeasors, each sufficient to cause the harm;

Alternative liability concurrent tortfeasors, plaintiff cannot determine which caused the harm; andIndivisible harms concurrent tortfeasors, each of whom contributed inseparably to the plaintiffs harm.

 Alternatives to the But For TestReasons for Alternatives & Multiple Sufficient Causes

Kingston v. Chicago & Northwestern Railway company" rail road catches land on fire. Pg.181 (Might be on Test)"Old doctrine" With the doctrine of But For test does not work, you will have to see if there is an alternative that works.  1)Where the acts of two concurrent tortfeasors combine to produce a harm to another and either act would have been sufficient to produce the harm, the burden is on each tortfeasor to show that its act was not a legal cause of the harm.

 2)A tortfeasor in such a circumstance may show that its act was not a legal cause by proving:

a. That the other contributing cause was not the result of a tortious act or

b. That the other's act created a force so much greater than the tortgeasor's act that the torfeasor's act was not a cause of the harm.  

Know if it was act of god, u can show that it was not the cause in fact

 Restatement (second) of Torts sec.432(2)If two forces are operating to cause the injury, one because of the defendant's negligence, and the other not, and each force by itself is sufficient to cause the injury. Then the defendant's negligence may be found to be a substantial factor in bringing about the harm.

Look for More Likely than not rather than beyond a reasonable doubt.

 When the acts of two or more, You can use but for test when there are two negligent parties. It can happen.

 Brisboy v. Fibreboard Paper Products Corporation "guy works with asbestos, dies, wife sues" pg.185When the acts of two or more tortfeasors combine to produce a harm to another and either act alone would have been

sufficient to produce the harm, each defendant may be found to have been a legal cause of the harm if its act was a substantial factor in producing the harm.  The substantial factor test includes an evaluation of the number of factors that contributed to producing the harm and the extent of the contribution of each in a comparison of the relative importance of multiple but for causes.

 Cause in Fact 

"BUT FOR""but for test usually works"  Alternatives to the but for test:

Multiple sufficient causesSubstantial factorConcert of actionAlternative LiabilityModified Alternative Liability(Market Share) 

Concert of Action876 Persons Acting in Concerta)does a tortious act in concert with the other or pursuant to a common design with him, or b)knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, orc)gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person. For harm resulting to a third person from the tortious conduct of another, one is subject to liability if

 Factors to look at1)Nature of the wrongful act. (if he bought the beer, )2)The kind and amount of assistance3)Relation of the parties4)Presence or Absence of the Defendant5)Defendants state of mind

 Concert of Action

 

Shinn v. Allen "drunk kid drives and kills, but they sue passenger" Can't hold someone responsible if they don't have a duty.Under the concerted action theory, an actor may be liable for the harm caused by another if he:a)does a tortious act in concert with the other or pursuantto a common design with him orb)knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself orc)gives substantial assistance to the other in accomplishing a tortious result and his own conduct separately considered, constitutes a breach of duty to the third person.  Factors for determining if there is a Concert of Action - “NARDS”Peter Stated No Apparent Reason

Nature of wrongful actKind and amount of assistanceRelationship of the partiesDefendant’s presence or absence State of maid of defendant

 Alternative Liability

 Summers v. Ticeonly one of them could have done it, and we don't know who did it, so they invent this new doctrine, where two people do something tortious, they use alternative liability theory. Both defendants will be liable and figure out how they will divvy it up.

Elements of Alternative Liability – “Can Only Eight Appear?”Summers v. Ticeconcurrent tortfeasors breach duties to the plaintiffonly one caused the harm and plaintiff cannot determine which oneeach of the defendants created a substantially similar risk of harm all of the tortfeasors who might have caused the harm are being sued by the plaintiff Where only one of two independent, concurrent tortfeasors who breached a duty to the plaintiff injured the plaintiff, but

the plaintiff, through no fault of his or her own cannot determine which one caused the injury, the burden shifts to each defendant to prove it was not the cause.

 Jointly liable- both responsible for 100 percent. (many will be responsible for 100 percent of plaintiffs loss).

 Separately liable - held to your part of the damages

 Elements of Alternative Liabilitya)Concurrent tortfeasors breach duties to the plaintiff, andb)Only one caused the harms and plaintiff cannot determine which one, c)Each of the defendants created a substantially similar risk of harm. Implicit in the third element is a requirement sometimes broken out a fourth element,d)All of the tortfeasors who might have caused the harm are being sued by the plaintiff.

  

Burke v. Schaffner, "girl hits pedal, while other guy drives"For the alternative liability theory to apply,1)All of the concurrent tort feasors whose conduct might have injured the plaintiff must be joined in the action and2)All must preset a similar risk of harm to the plaintiff.

 Market Share Liability:  

Hymowitz v. Eli Lilly and Company "poster child"Difference with this case was that there were many def. and could not get them all in court. They limited liability to those who marketed toward pregnant woman. This was Not concerted action, because they were not all planning this. 1)Modified alternative liability loosens the requirement that all wrongdoers must be before the court. States vary in how many must be present; some require a majority, some require a substantial number. 2)Modified alternative liability loosens the requirement that all of the wrongdoers breached a duty to the plaintiff.3)Each def. is severally liable only for its market share or, for the portion of the total risk that is created, rather than being jointly and severally liable. 4)States vary in how market share is determined; some refer to national market share while other attempt to determine the

share of the market that served the plaintiffs areas (such as plaintiffs state).

 Modified Alternative liability

 Black v. Abex CorpElements for modified alternative liability

 1)Injury caused by fungible product made by all defendants,2)Injury due to unreasonably dangerous product design, 3)Inability to identify specific manufacturer4)Joining substantial proportion of relevant manufacturers, the fungible products requirement reflects the equitable basis of imposing liability based on market share when all manufacturers products created the same risk.  Elements for Modified Alternative Liability: (a) injury or illness occasioned by a fungible product (b) injury or illness due to a design hazard(c) inability to identify the specific manufacturer (d) joinder of enough of the manufacturers  Elements for Modified Alternative Liability (Market Share Liability)Drug Manufacturers Case(a) injury or illness occasioned by a fungible product (identical- type product) made by all of the defendants joined in the lawsuit; (b) injury or illness due to a design hazard, with each having been found to have sold the same type product in a manner that made it unreasonably dangerous; (c) inability to identify the specific manufacturer of the product or products that brought about the plaintiff’s injury or illness; and (d) joinder of enough of the manufacturers of the fugible or identical product to represent a substantial share of the market. 

Liability for Lost Chance of Recovery or for Increased Risk of Eventual Harm

Lord v. Lovett1)Where malpractice reduces the chances of full recovery, states adopt one of two rules for deciding how great the loss must be:

a)The plaintiff must prove by a preponderance of the evidence that he or she was deprived of at least 51% chance of a more favorable outcome.b)the plaintiff must prove by a preponderance of the evidence that he or she was deprived of a substantial possibility of a more favorable outcome.2)States have adopted one of two rules for deciding how damages for such a loss are calculated.a)under the all-or-nothing rule, the plaintiff recovers full damages andb)Under the percentage recovery rule, the plaintiff recovers damages reduced to reflect the reduction in the probability of a more favorable outcome.

 This is a loss of opportunity.

 Alberts v. Schultz, (N.M. 1999)Most court apportion damages by valuing the chance of a better result as a percentage of the value of the loss.  Petriello v. Kalman, (Conn. 1990) Plaintiff can be awarded compensation for an increased chance of future adverse consequences, as for decreased chance of recovery.

 Negligence

 A DUTY to someoneA BREACH of that DUTYCAUSATION Cause in Fact ("But-For" or and "Alternative")

And Proximate CauseDAMAGES

 LIMITATIONS TO LIABILITY: DUTY and Proximate causeIntroduction

Palsgraf:  Slide1:

1.Even if an actor is negligent to another and even if the actor's negligent conduct was a cause-in-fact of the plaintiff's harm, the actor is not liable to a plaintiff unless the actor had a duty to the plaintiff.  An actor has a duty to a person if it is reasonably foreseeable that the actors conduct would harm people in that persons position.

 Because there was no duty, there was no liability. Causation was, therefore, not an issue in this case.  

2.The existence of a duty is a question of law. 3.While harm to people in the plaintiff's situation must be

foreseeable for there to be a duty, the particular method by which the harm arose need not be foreseeable.  Slide2:Dissent:Even if an actor is negligent to another and even if the actors negligent conduct was a cause in fact of the plaintiffs harm, the actor is not liable to a plaintiff unless the conduct was a proximate cause of the plaintiffs harm, which is determined by a multi-factor test.  Slide 3:

 1.Was the act a "but-for" cause of the harm?2.Was there a natural and continuous sequence between cause

and effect?3.Was the act a substantial factor in producing the harm?4.Was the harm a direct result of the act without too many

intervening causes?5.Was the effect of cause on the result too attenuated?6.Was the act likely to produce such a result?7.By the exercise of prudent foresight, could the result be

foreseen?8.Was the result too remote from the harm in time so that

intervening causes are more likely to have affected the result?9.Was the result too remote from the harm in space so that

intervening causes are more likely to have affected the result Slide 4:Conflicting factual inferences on which the question of duty is based are for the jury to decide, but the ultimate question of whether there is a duty, given those facts, is a question of law for the court. Notes in Class: conduct was a prox. CauseMultifactor Test was looked at. Mcgrath: "You must establish a but for cause before looking at proximate cause"

There was 9 relevant considerations when looking at this case.Palsgraf: "Nothing bizzare, very clear of why we try to limit liability, on whether there is a duty. General way to prove duty is the forseeability" Exam: is there negligence? U must go through all the steps. Don't just say no negligence. Work through all of the elements. DISCUSS all of the elements… 

Proximate Cause"a proximate cause is one which in natural and continuous sequence, unbroken by any efficient intervening cause produces the injury and without which the result would not have occurred" The directness test treates a defendants conduct that is a cause in fact of a plaintiffs harm as a proximate cause if there are no intervening forces between the defendants act and the plaintiffs harm. The foreseeability test treats a cause in fact as a proximate cause if the plaintiffs harm was reasonablyu foreseeable.  The substantial factor test treats a defendants conduct as a proximate cause of a plaintiffs harm if the conduct is important enough compared to other causes of the harm to justify liability. How do I know which one will be used?

 Directness

 In Re an Arbitration between Polemis and Furness, Withy & Co., LTD "Board falls and sets boat on fire""But for Test is a crappy test" per McGrath For the purpose of the proximate cause element, it does not matter whether the harm was foreseeable. The direct cause test requires only that the harm was directly traceable to the defendant's conduct rather than the operation of some independent unrelated cause.  Laureano v. Louzoun, "lady gets burned when trying to make hot water "Crappy "but for test" is met in this case. There was no direct cause between landlord not providing water and her burning herself.

 Under the direct cause test, the intervention of an independent act will prevent the defendant's act from being a proximate cause of the plaintiff's harm. Direct is usually a very simple test.  

Foreseeability "Linking Liability to Foreseeability" pg. 247Tieder v. Little "Car accident leads to brick wall falling and killing Tieder" (TEST MATERIAL)To be a legal cause of a plaintiff's harm, an actor's conduct must be the cause in fact and a proximate cause. 1)an actor's conduct is a proximate cause of the harm if the harm was within the scope of the danger created by the defendant's negligence, or, stated differently, if the harm was a reasonably foreseeable consequence of the defendant's conduct. 2)it is not necessary that the exact sequence of events that led to the accident were reasonalby foreseeable only the general type of harm that resulted.  Negligence in this case was the design of the wall, and it was foreseeable because it was around a lot of people. Was cause in fact proven? Question he asked? McCain v. Florida Power Corp. "Electrical Cable struck McCain"(review for test)1)Duty is a question of law based on general consideration of whether the defendant's conduct creates a zone of risk to others. 2)Proximate cause is a question of fact based on a specific question of whether the defendant's conduct created the foreseeable risk of the harm that occurred to the type of plaintiff that suffered. 3)Foreseeablity is "genuine foreseeability" or reasonable foreseeability, not a foreseeable but improbable or freakish event.  (TEST) Problem #3? Shotgun given to kid, but it does not harm her. She is only harmed by it falling on her toe. "Must establish cause in fact, but that's not enough. Once you establish cause in fact with but for test or alternative, then you find proximate cause. If you are not told what type of

jurisdiction, then you must discuss all of them." He will give us red herrings but we have to look at it closely" "Relating the "Eggshell Plaintiff" Rule to a foreseeability Analysis"Schafer v. Hoffman, "eggshell plaintiff case""the thin skull or eggshell plaintiff rule required def. to take their victims as they find them. Damages are not reduced by the fact that the plaintiff had a preexisting condition making her more susceptible to harm. Notes: Lady already had issues when the defendant hit her. He does not have to pay for a back surgery that was already scheduled but he will pay for whatever he exacerbated because of the accident. Must pay for damages that were caused. Sometimes you will hit someone that was already old, and was gonna die anyway but you would only pay them what they had left? It is not foreseeable but you may still have to pay.Shabby millionaire-u see someone walking down the road, all drunk, old, poor, you may think poor. If u hit him u probably don't think you would have to pay a lot. He may be a shabby millionaire. "Difficulty in Applying Foreseeability Analysis"Petition of Kinsman Transit Co.Considering whether to extend liability beyond that which is reasonably foreseeable, the court holds that where, as here, the damages resulted from the same physical forces whose existence required the exercise of greater care than was displayed and were of the same general sort that was expectable, unforeseeabilty of the exact developments and the extent of the loss will not limit liability. 

Substantial Factora.The number of other factors which contribute with one another

in producing the harm and the extent of the effect which they have in producing it,

b.Whether the actor's conduct has created a force or a series of forces that are in continuous and active operation up to the time of the harm, or has created a situation harmless unless acted upon by other forces for which the actor is not responsible, and

c.Lapse of time. 

American Truck Leasing, Inc v. Thorne Equipment "fire, elevator, causes damage"Slides: Substantial Factor (a) the number of other factors which contribute with one another in producing the harm and the extent of the effect which they have in producing it,(b) whether the actor's conduct has created a force or a series of forces that are in continuous and active operation up to the time of the harm, or has created a situation harmless unless acted upon by other forces for which the actor is not responsible, andc)lapse of time. To decide whether an actors conduct is a proximate cause of another's harm under the substantial factor test, consider1.the number of other factors that contributed in producing the harm and the extent of their effect,2.whether the actor's conduct has created a force or a series of forces that are in continuous and active operation up to the time of the harm, or has created a situation harmless unless acted upon by other forces for which the actor is not responsible, and3.lapse of time. Since there can be more than one substantial factor, the ultimate question is whether the actors conduct is substantial enough, relative to other causes, to justify the imposition of liability. Notes: Substantial factor is an alternative to but for test. Gross failed to clean her property, started fire, burned front street neighbors property and vehicles. While taking elevator down property is ruined. But for test says she is cause in fact of the accident, Direct test says no proximate cause, Foreseeabilty test shows not foreseeable, Different tests get different results Chelcher v. Spider Staging Corp. "Spider Scaffold which was mis-rigged"1.the substantial factor test focuses on whether the def. conduct compared with other factors causing the injury was substantial enough to justify holding the def. liable.2.there may be many sub. factors and hence, proximate causes3.the combination of other factors here contributions by other defendants but potentially other "but for" causes as well may have such a dominant effect that a particular def. conduct is un-substantial.4.The restatement second test for substantial factor includes consideration of the number of other factors which contribute

in producing the harm and the extent of the effect which they have in producing it.

Substantial Factor Test – “LOW”Lapse of time;Other factors that contributed in producing the harm and the extent of their effect; Whether the actors conduct has created a force or a series of forces that are in continuous and active operation up to the time of the harm, or has created a situation harmless unless acted upon by other forces for which the actor is not responsible Taylor v. Jackson "the big mess accident"1.lapse of time between a def. conduct and a plaintiff's harm is a consideration in determining whether that conduct is a sub. Factor in producing that harm.2.if other considerations point to defendant's conduct as being a substantial Factor, a great lapse in time alone will not prevent that conduct from being a substantial factor. Notes: Restatement on page 270."Experience has shown that where a great length of time, etc…" (check this out) 

Combining ApproachesSumpter v. Moulton "heart attack while cleaning city's ditch" Slide: under this combined substantial factor and foresee-ability approach, an act is a proximate cause if, first, it was a substantial factor in producing the harm and, second, the result harm was reasonably foreseeable.  Notes: He says the city was negligent in not cleaning ditches. Plaintiff tried to use eggshell to make city liable. Take the plaintiff as you find him. In this case we want to see if this drain ditch thing was the proximate cause. They used two tests to try to determine if there was proximate cause. Ended up using a combo but they did not do it correctly. Court says this is a mixed approach.  "read questions carefully to see what standard I should use?" 

Intervening and Superseding Forces"When is an Intervening Force Treated as Superceding?"

Price v. Blaine Kern Artista, Inc. "Big President Head" "Stupid"Slide: The intervening act of a third party, whether or not an intentional tort, does not prevent a defendant's conduct from being a legal cause of plaintiffs harm if the intervening act was reasonably foreseeable.  Notes: Every superseding act must be intervening, also must be unforeseeable and highly extraordinary. This was unforeseeable, but another's act will free  McClenahan v. Cooley, "thief takes key and car and kills"Slides: States differ on whether an auto owner whose vehicle is stolen because he or she left the keys in the vehicle will be liable for harms caused by the intervening act of the thief.  Some courts deny liability altogether while others, including this court, apply the superseding cause test to see whether the intervening theft prevents the owner from being liable. Liability will be imposed if the owners conduct was a substantial factor (proximate cause) and the intervening act was reasonably foreseeable (no superseding cause). notes: we want this to be unforeseeable so that cooley won't be liable. Will it be foreseeable that someone will steal, accident, etc… The court in this case takes the. Example page 282: dealership and leaving the keys in the ignition, was this foreseeable. Maybe, there was a higher risks of thiefs, this would be intervening, not superseding.  (REVIEW FOR TEST)Superseding must be unforeseeable. 

Negligent Treatment of a Plaintiff's Injury: Intervening or Superseding?

Weems v. Hy-Vee Food Stores, Inc., "slip and fall at the store"Trying to get proximate cause not "but for"See page 289  Slides: Adverse consequences of medical treatment, whether negligently administered or not, are not a superseding cause of the tortious conduct that gave rise to the treatment if the medical treatment was a normal consequence of that conduct, reasonable foreseeable within the risk created by the conduct.  

 Corbett v. Weisband, (see slides to finish) "2nd dr. says 3rd dr's actions highly extraordinary so he not liable"Jury should have had the chance to determine if this was highly extraordinary. Slides 1:Restatement (second) of Torts Section 447The fact that an intervening act of a third person is negligent in itself or is done in a negligent manner does not make it a superceding cause of harm to another which the actor's negligent conduct is a substantial factor in bringing about, if

1.The actor at the time of his negligent conduct should have realized that a third person might so act, or

2.A reasonable man knowing the situation existing when the act of the third person was done would not regard it as highly extraordinary that the third person so acted, or

3.The intervening act is normal consequence of a situation created by the actor's conduct and the manner in which it is done is not extraordinarily negligent.   Slide 2: whether an intervening act is superseding cause is a jury question.

 Testimony must establish that the intervening medical treatment was not normal., was not foreseeable, or was not within the scope of the risk created by the original tortious conduct.

 Apparently it is not enough to establish that the intervening conduct was negligent, even highly negligent, insane, or inhumane.

 Notes: Intervening conduct by plaintiffs: generally third person.Effect upon chain of proximate cause - drunk guy almost kills, someone tries to resucitate and person dies, then drunk driver still at fault. Damages must be provedCompensatory damages

General-noneconomicSpecial-economicPunitiveNominal for intentional tort

 Chapter 12: DamagesCompensatory Damages

Intro:Gunn v. Robertson "looking at damages in this case you can't tell the jury what's reasonable!"General points about damages:

1.Appellate courts reverse jury findings on damages if jury abused its discretion.

2.Basis for awards are individual circumstances of individual plaintiff

3.Awards in other cases are a general guide, but point (2) is more important

4.Defendants take plaintiffs as they find them5.All courts may reduce jury damage awards (remittitur); some

jurisdictions do not permit courts to raise damages (additur). TEST (There will be a question like this on the exam!!!!)Jordan v. Babtist Three Rivers Hospital "Med-Mal"

1.Survival damages are awarded to the estate of the person whose death is caused by the tortfeasors act.

2.Wrongful death damages are awarded to those who depended on the decedent for emotional or financial support.

3.Who may recover each heading, the categories of damages for which recovery is allowed under each heading, and caps on damages under each heading are all governed by statute because neither type was recoverable under the common law.  Notes: For test look up next of kin and decedents estate.Additur - not available in federal courts..def. decidesRemittur - plaintiff decides 

Pain and SufferingRael v. F&S Co., Inc.,

1.Majority opinion: Some states require medical expert testimony to support claims for pain and suffering for subjective injuries, injuries with which the type of pain claimed would not obviously be associated.

2.Concurring/dissenting opinion: Pain (a jangling of the nerves, consciousness of ones serious hurt) and suffering (worry or apprehension concerning extent of injury) are subjective, not easily measured; measure is the enlightened conscience of impartial jurors.  Giant Food Inc. v. Satterfield "slip and fall"

3.Some states permit per diem arguments for pain and suffering amounts arguments suggesting that the jury consider a specific dollar amount for a unit of time multiplied by the length of time the plaintiff will suffer the pain. Some states don't allow these arguments at all.

4.Some states allowing per diem arguments give juries specific cautionary instructions that the dollar amounts suggested by the attorneys making these arguments are not evidence and it is up to the jury to decide on the proper pain and suffering award.  Find pros and cons on page 587.

 Hedonic Damages

Loth v. Truck-A-Way Corp. "loss of enjoyment of life, hedonic damages"

1.In this state, damages for loss of enjoyment of life's pleasures are part of the pain and suffering award, while in others they are separate; the majority of states recognize compensation for hedonic damages.

2.General damages, including hedonic, must be based on evidence specific to the plaintiff. Most courts take the view that such generalized economic testimony is not admissible. 

Special DamagesMoody v. Blanchard Place ApartmentsFor all lost wages, the general rule is to compare what the earning capacity before and after the accident for the remainder of the plaintiffs working life.  Past wage loss: For wage loss prior to trial, practical approach is look at work history prior to the accident, project those earnings to the time of trial, and subtact wages the plaintiff actually earned.  Future wage loss: When figuring lost future wages, the award is, strictly speaking, based on changes in the plaintiffs earning capacity. In practice, consider the plaintiffs physical condition before and after injury, past work record and consistency thereof, amount plaintiff would have earned absent the injury and the probability that he would have continued to earn wages over the balance of his working life.  Kaczkowski v. Bolubasz

1.Inflation and lost future wages. This case is about how to take inflation into account in calculating lost wages. Inflation enters the calculation at two points:

a. Adjusting wages from year to year to reflect increases in the cost of living and likely cost of living wage increases and

b. Determining what discount rate to use when deciding whether and how to discount projected lost future wages to their present value.  These two questions are related. If future wages are to be discounted to their present value (some states do not discount at all), the following rule is generally true: if projected wages are increased to reflect the rate of inflation, a higher discount rate should be used and it should be higher by the amount of the rate of inflation.

2.Projected future wages should be increased to reflect the increased productivity of the wage earner to the same extent that the wage earners salary would have increased to reflect increased productivity, as long as the estimates are not too speculative.

 ADD CHART (CUT AND PASTE FROM LEXIS)

 Punitive Damages

Peete v. BlackwellPunitive damages are appropriate when act was committed with malice, willfulness, or wanton and reckless disregard of the rights of others, when the act was wrongful and attended with an insult or other circumstances of aggravation. Shugar v. Guill

1.Punitive damages are intended to punish and deter.2.Punitive damages may be awarded when assault and battery is

accompanied by an element of aggravation such as malice, or oppression, or gross and willful wrong, or a wanton and reckless disregard of plaintiffs rights.   State Farm mutual Insurance Comp. v. CampbellThe constitutionality of punitive damages must be evaluated under guidelines established in BMW v. Gore:

a. Degree of reprehensibility of defendant's conduct,b. Disparity between actual and punitive damages, and

c. Comparison and punitive damages awarded and other civil or criminal penalties that could be imposed for similar misconduct.  

Guideposts for excessive punitive damagesDegree of reprehensibility of defendant’s conductDisparity between actual and punitive damagesComparison of punitive damages awarded and other civil penalties that could have been imposed. 

 Adjustments to Damages; Collateral SourcesAnd Statutory Ceilings

Perreira v. Rediger1.The collateral source rule traditionally allowed a plaintiff to

recover for value of medical treatment even if the plaintiffs insurance company had reimbursed the plaintiff. More generally, a tortfeasor may not reduce the payment of a tort judgment by amounts of money or services received by the injured person from other (collateral) sources. No evidence of those other payments may be offered in evidence.

2.Legislation in many states has modified the collateral source rule and allows some (varying) evidence of collateral benefits to reduce tortfeasor's liability.  Etheridge v. Medical Center HospitalLimits on damages may be challenged on constitutional grounds, including, here, the state constitutional right to jury trial and the federal constitutional rights to procedural and substantive due process.

3.Court here finds the jury trial right limited to having the jury find facts, not apply law such as the damage cap.

4.With respect to procedural due process, the court finds that the plaintiff was not denied notice or a reasonable opportunity to be heard.

5.With respect to substantive due process, court here finds damage cap to be economic regulation for which only a rational relationship to a legitimate objective is required and finds that relationship.  Knowles v. USLimits on damages may be challenged on constitutional grounds, including here, the state constitutional right to a jury trial and due process.

6.Court here finds the jury trial right includes right to have jury determine damages and no reason to limit that access to the

jury for some plaintiffs (those with damages above the cap) and not others.

7.With respect to due process, the court here finds there is no real and substantial relation between the statutory damage cap and any objective, questioning whether there was a malpractice insurance crisis and whether damage caps would make any difference if there was a crisis.  

Chapter 8: Apportionment of DamagesJoint and Several Liability 

Lacy v. CSX Transportation, Inc.1.A plaintiff is entitled to collect whatever portion of the

recoverable damages the plaintiff wishes from any of the jointly and severally liable defendants, regardless of their relative degrees of fault,

2.The doctrine of comparative contribution allows a defendant who has paid more than its share to recover any overpayment form the other defendants.  A jurisdiction might favor this joint several liability because

 Sitzes v. Anchor Motor Freight, Inc., "When a plaintiff has collected more from a jointly and severally liable defendant than that defendants share, that defendant may sue the other defendants in a contribution action for the excess. The amount of each defendants share collectible (or payable) in a contribution action is based on either a pro tanto share (equal division per defendant) or, in many jurisdictions that have adopted comparative negligence, a fraction based on relative degree of fault.  Pro Tanto???? Under old comm. Law, if one person was 1 percent responsible, you could get all money from that one person and no one else would be sued. Assumption of risk (mentioned test)  

Several LiabilityPiner v. Superior Ct. "guy gets in two accidents in one day"1.Individible harms are those caused by the combined acts of multiple tortfeasors which cannot be attributed to a particular tortfeasor

2.When a plaintiff suffers indivisible harms, the plaintiff is unable to meet his or her vurden of proving that a particular tortfeasor is a cause in fact of a particular harm. 3.To escape liability for indivisible harm, each defendant bears the burden of showing that its act was not a cause in fact of the harm. 4.Defendants who fail to meet this burden are either jointly and severally liable or severally liable according to relative degrees of fault, depending on the jurisdictions approach. Roderick v. Lake "who let the horses out, who?"Notes: In this case only one negligent act caused the accident. Alternative Liability. Like Summers v. Tice. Only one person did it, we used the alternative liability to find out negligence, but  Slides: In cases involving application of exceptions to the cause in fact rules, such as alternative liability (Summers v. Tice) one modification of joint and several liability requires liability to be apportioned according to relative degree of fault.  

General points about damages;1. Appellate courts reverse jury findings on damages if jury abused its

discretion.2. Basis for awards are individual circumstances of individual plaintiff.3. Awards in other cases are a general guide, but point (@) is more

important.4. Defe. Take p as they find them5. All courts may reduce jury damage awards remittitur; some

jurisdiction do not permit courts to raise damages ____.  

Negligence (DBCPD)A duty to someoneA breach of that dutyCausation -cause in fact )but for or an alternative)And Proximate Cause (substantial factor, foreseeability)DamagesDefenses

 DEFENSESTraditional Common Law Treatment of a Plaintiff's Negligence

Wright v. Norfolk and Western Railway Co. "guy goes over the train track and gets hit"Notes: be aware that some states still use the contributory negligence system.

 Slide: Under the contributory negligence system, a plaintiff whose own negligence is a cause of his or her own injury is barred from recovery. Can Recover under the last chance doctrine but you have to prove (PHADK) 

Modern Comparative Treatment of a Plaintiff's NegligencePure Comparative negligence allows a contributorily negligent plaintiff to recover some portion of his or her total damages as long as the defendant's negligence was also a proximate cause of the accident. The damages will be reduced by whatever percentage the jury assigns to the plaintiff's negligence. 49% - less than 50 Modified Comparative - neglience has been adopted in two forms. In one system, a neglient plaintiff is allowed to recover damages only if his or her negligence is less than that of the defendant or defendants. In other words, a 49 percent share of responsibility will allow recovery, but a 50 percent share will not. 50% - equally responsible49% P can recover if it is less that 50 %.50% Can recover is p is liable 50 or less. It can = def. negligence or be less than. Difference between-they want to make sure the plaintiff is less negligent than the defendant. McIntyre v. BalentineNotes: they looked at rail road, but that was federal law. The court does not want to make a mistake so they rejected "pure" (where they assign a percentage of negligence or fault to someone, and they pay that percentage of estimated damages.  Slide: Contributory negligence has been widely rejected and replaced with either pure or modified systems of comparative negligence.  Dobson v. Louisiana Power and Light Company - "tree trimmer hurt by power line"B<PL (Burden<potential Loss)??B=how much would it cost, what is the burdenPL=what would the probability of loss be. (McGrath does not thing this is good here" 

Slide: The relative degrees of negligence of various parties can be determined using the Learned Hand test to determine the extent to which each departed from the standard of care.  Jensen v. Intermountain Health Care, Inc. "guy dies in er"Notes: Wisconsin rule says plaintiff has to be less negligent than any of the defendants. They fail to adopt this rule because depending on this case it might not work. Wisconsin is the minority rule. The negligence of each defendant is compared to the plaintiff’s negligence separately.

Unit Rule: The negligence of all def. is taken together in making a comparison to the plaintiff’s negligence to determine if a def. is liable. (Majority Rule): Neg. of all the def. are taken into account.  Slides: In a multi-party modified comparative negligence case, the outcome may be affected by choosing to compare the plaintiff's percentage either to the total of all defendants percentages or to the percentage assigned to each defendant.  Utah chooses to compare the plaintiff with the total of all defendants shares using the unit rule and rejecting the individual rule. Restatement 2d of Torts 439If the effects of the actor's negligent conduct actively and continuously operate to bring about harm to another, the fact that the active and substantially simultaneous operation of the effects of a third person's innocent, tortious, or criminal act is also a substantial factor in bringing about the harm does not protect the actor from liability. 

Reckless ConductColeman v. HinesContributory negligence jurisdictions have excused a plaintiffs negligence in cases where the plaintiff was negligent and the defendant's conduct was worse than negligent. 'Another doctrine that avoided application of the contributory negligence bar was the last clear chance doctrine, excusing a plaintiff's negligence when the plaintiff was in peril, could not escape it, the defendant knew it, and the defendant acted unreasonably in failing to avoid the harm.  

Last Clear Chance – PHADK (Only Under Contributory Neg. Jurisdictions!!!)Peril from which the plaintiff could not escapeHarm occurred to the plaintiffAvoidance of the accident by the DefendantDefendant acted unreasonable or failed to avoid accidentKnowledge by the defendant that the plaintiff could not escape

Last Clear Chance1.Plaintiff by her own negligence placed herself in a position of

peril from which she could not escape;2.Defendant saw, or by the exercise of reasonable care should

have seen and understood, the perilous position of plaintiff;3.Defendnat had the time and the means to avoid the accident if

defendant had seen or discovered plaintiff's perilous position;4.Defendant failed or refused to use every reasonable menas at

her command to avoid impending injury to plaintiff; and 5.Plaintiff was injured as a result of defendant's failure or refusal

to avoid impending injury.  Downing v. United Auto Racing AssociationA defendant's liability for willful and wanton misconduct can be reduced to reflect a plaintiff's ordinary negligence under a comparative fault system.  Under contributory negligence, the plaintiff is entitled to full recovery.Under comparative negligence in some jurisdictions (minority) a plaintiff is entitled to full recovery.Under comparative negligence in most jurisdictions (majority), a plaintiff is entitled only to whatever recovery the jurisdictions comparative negligence rules would provide if all parties had been negligent.

 Assumption of Risk – giving up the right to sue a def. for harms that might be caused in the future by the def’s negligence.

1.Endeavor usually thought suitable for public regulation.2.Service of great importance or practical necessity.3.Activity generally offered to public or to defined limited classes.4.Party invoking exculpation controls the bargaining.5.Contract is standardized with no opportunity for purchase of

protection against negligence for a reasonable fee. 6.One who seeks services covered by the release will be under the

control of the furnisher of services.  Express Assumption of Risk

1. An express agreement to forgo a right to sue may bar a plaintiff from recovery due to a def. negligence.

2. Enforceability of a release to forgo risk involves two questions;

a. Does public polity permit releases in connection with the activity

b. If public policy allows assumption of risk, does the particular release provided by the plaintiff merit enforcement

Wagenblast v. Odessa School DistrictExculpatory agreements (releases of future claims) are sometimes valid contracts, but in certain situations courts will refuse to treat them as valid.  Turnbough v. Ladner, "scuba diving waiver"Courts will often analyze express assumption of risk cases from a plaintiff perspective and apply very demanding criteria for effectiveness of a release.  Six characteristics waiver should be invalid - ESCAPP(1) endeavor of a type generally thought suitable for public policy;(2) service of great public importance; (3) contract is standardized – no opportunity to purchase insurance(4) activity generally offered to public or to defined limited class(5) party invoking labor has control over bargaining(6) party waiving right is under control and at risk for carelessness by the other  

Implied Assumption of the RiskSchroyer v. McNealSlide:Plaintiff must have knowledge of the facts constituting a dangerous conditionPlaintiff must know the condition is dangerous.Plaintiff must appreciate the nature and extent of the dangerPlaintiff must voluntarily expose him/herself to the danger.  Notes: She was reasonable so not contributory negligent but she did assume the risk knowing the harm. Difference on page 328.

 

Secondary implied unqualified assumption of risk is a voluntary taking of the risk, "qualified" adds an additional element that the person was objectively unreasonable in exposing herself to the risk.  If the person was unreasonable either in taking the risk or avoiding the risk after voluntarily confronting it, that may be both contributory negligence and secondary implied Implied assumption of risk requires that a risk is knownm, the danger is appreciated, and the taking of the risk was voluntary - intentional and voluntary exposure to a known danger created by the fault of the defendant.  

Davenport v. Cotton Hope PlantationNotes: know some states have complete bars to recovery Conduct manifesting a willingness to assume a risk may be reasonable or unreasonable depending on circumstances; consistent with the purpose of comparative fault, all such conduct will be treated in the comparative system.  Look At Slides!! And add hereKnow about Secondary Implied!!!! Only TESTING ON OVERALL ABOVE. SEE SQUARE ABOVE.  Secondary implied assumption of the risk. There are four elements. See square above. This is a defense.  Know difference between Primary and Secondary Implied assumption of the risk.  Slide 2: Modified Comparative Negligence

Plaintiff is only allowed to recover if his negligence is LESS THAN the defendant "49 percent rule" Plaintiff is only allowed to recover if his negligence is Less than or equal to THE DEFENDANT."50 PERCENT RULE" 

Slide 3:Page 334

"It is contrary to the premise of our comparative fault system to require a plaintiff who is fifty percent or less at fault to bear all of the costs of the injury.

 We therefore hold that a plaintiff is not barred from recovery by the doctrine of assumption of risk unless the degree of fault arising there from is greater than the negligence of the defendant.  Notes:The doctrine of secondary implied assumption of risk applies to those risks created by the def. 334 We care if it is Primary or secondary, we can get rid of it because of no duty. One has to have duty. Primary = duty, breach, etc… 

Mitigation and Avoidable ConsequencesMiller v. Eichhorn, "accident and lady does not go to dr. regularly"Unreasonable failure to mitigate damages can be treated as fault that can reduce or bar recovery under comparative principles.  Klanseck v. Anderson Sales & Service, Inc. "motorcycle case"Unreasonable failure to mitigate damages can prevent recovery for any damages that would have been prevented by mitigation.  Law v. Superior Court "young girl and other party not wearing seatbelts"Failure to wear a seat belt May be treated as fault, and can thus reduce recovery of a person injured in a vehicular accident. Minority Rule!!!  Notes:Other two cases were about mitigating your damages after the accident. This one was before the accident.  Slides:Failure to wear a seat belt MAY be treated as fault, and can thus reduce recovery of a person injured in a vehicular accident. Minority Rule!!!

 ImmunitiesSovereign Immunity

Coulthurst v. Unites States "prison accident suing accident"May be on testNotes: Can only sue when they say so. Slides: The Federal Tort Claims Act discretionary function exemption applies when the acts alleged to be negligent:

1.Are not compelled by statute or regulation and2.Involve an element of judgment or choice that is grounded in

consideration of public policy. Notes:Remember about the discretional

1.Gov. is going to protect itself in terms of discretionary functions. Not going to second guess their employees.

2.However, if someone not doing their job, the fed. Gov. will have to pay.  Carter v. Chesterfield County Health Commission.Slides:State Immunity: Some states also use the distinction between operational and planning decisions to identify discretionary functions.  Slide:Local government units are often immune from tort liability. One common approach to applying the immunity asks whether the injury was caused by a governmental or proprietary activity. One approach to determine a proprietary activity is to examine if it involves "maintenance or operation of the service being provided," as opposed to activities undertaken for the common good, or exercises of power imposed on the municipality. 

Other Immunities: (not on test)The reasons that justified interspousal immunity are not persuasive in the 21st century. Parental immunity is a desirable doctrine in some cases, but a variety of doctrines have developed to limit its applicaction.  

Intrafamiliar Immunity: Interspousal immunity- the reasons that justified interspousal immunity are not persuasive in the 21st century.

Parental immunity is a desirable doctrine in some cases, but a variety of doctrines have developed to limit its application.

California New York Tennessee-

Reasonable parent

Duty owed to all

Parental supervision

  

Statute of Limitations/Repose: Statute of limitations begins to run when the plaintiff reasonably has notice that someone may have caused an injury to the plaintiff.Fraudulent concealment tolls a statute of limitation.The limitations period of a statute of repose may expire prior to the time an injury occurs.  Hanley v. Citizens bank of Mass.Slide: Statute of limitations begins to run when the plaintiff reasonably has notice that someone may have caused injury to the plaintiff. Kern v. St. Joseph's Hospital "x-ray" "fraudulent concealment"Slide: Fraudulent concealment tolls(stops) a statute of limitations.  Sedar v. Knowlton Construction Co. The limitations period of a statute of repose may expire prior to the time an injury occurs.  

Chpt. 13 Traditional Strict LiablityInjuries Caused by Animals

Clark v. Brings. Common Law Divided animals into two classes, wild and domesticated. It imposed strict liability for injuries inflicted by wild animals, and imposed strict liability for injuries inflicted by domestic animals when the owner knew or should have known that the animal had harmful propensities.

 Byram v. Main Owner of a domestic animal will be subject to strict liability for injuries it inflicts while trespassing.

 Selected Dangerous Activities

Six Factor Test to determine if it is an unusual or extraordinary activity under strict liability. – “HIHINE”

High degree of risk.Inappropriate where carried out.Harm likely to be great.Inability to eliminate the risk with reasonable care.Not a matter of common usage.Extent that value is outweighed by danger.

 For example: Clark Aiken Co. v. Cromwell Wright Co.

 The Rylands v. Fletcher innovation, strict liablity for one who brings something unusual or non-natural onto his or her land that is likely to cause harm to others if it escapes, is adopted in many American jurisdictions.

 Klein v. pyrodyne corp.Restatement Second) six-factor test for imposition of strict liability can identify conduct that imposes unusual, non-reciprocal risks. The test is subject to lots of judgment calls in its actual application.

 When something unreasonable happens they may not be liable. Like someone running into the running building.

 Especially dangerous = reasonableAbnormally dangerous = strict liability

 Chapter 14 Products LiabilityAllowing "Strangers" to Recover for Negligence: Abrogation of the Privity Requirement

MacPherson v. Buick Motor CompanyEven if the victim of a product related injury had no contractual relationship with the manufacturer, the victim is entitled to seek damages for negligence despite the lack of privity between the manufacturer and the victim.

 Allowing Recovery w/o Proof of Negligence: Developments of Strict Liability"Early Development"

Escola v. Coca Cola Bottling Co. of Fresno "coke lady"Justice Traynors concurrence posits risk spreading, the calamitous effect of product injuries on typical individuals, and the imbalance of information between sellers and buyers as reasons to recognize strict liability for product related injuries.

 ADD CHARTS FROM LEXIS HERE

 Res ipsa is like strict liability

 If applied in cases where the inference of a def. negligence is very weak (as was arguably done in Escola) res ipsa would be close to strict liability. Look at charts

 Elements of a claim of product liability under a theory of strict liability – “I DUCK”InjuryDefect in design or manufactureUse of product in intended mannerCausal connection between defect and injury;Plaintiffs lack of knowledge of defect. Greenman v. Yuba powerP states a claim against a man. By showing that he was injured using a manufacturers product in a way it was intended to be used and was injured as a result of a defect in design and manufacture that made the product unsafe for its intended use, if the plaintiff was unaware the defect.  

Manufacturing Defects:In Re Coordinated Latex Glove LitigationA manufacturing defect exists when a particular unit of a product deviates from its intended design or deviates from other ostensibly identical units of the same product line.

 Myrlak v. Port Authority of New York and New Jersey.Inference of product defect may b permitted in a strict liability case, where the type of incident usually is assoc. with a product defect, and was not solely the result of causes other than product defect existing at the time of its sale or distribution.  

Design Defects:"Consumer Expectation and Risk Utility Test"Morton v. Owens Corning Fiberglass'Consumer expectation tests (outer limits) test treats a design as defective if the product fails to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner.  Consumer expectation test and the

risk benefit test are used to determine defect. Risk Benefit AnalysisUtility of product.Likelihood and seriousness of injury.Availability of safer substitute productsAbility to eliminate danger without impairing utility or raising price too much. Users ability to avoid danger. Users awareness of danger. Feasibility of manufacturers loss spreading.  Warner Fruehauf Trailer Co. Inc. The risk benefit test characterizes a design as defective if its risk outweigh its benefits. A seven factor analysis can organize application of the risk benefit test.  Factors under the Risk Benefit Analysis “AFUUULA” A Fairly Unusual Undertaking Under Law Analysis

1) Availability of safer substitute products2) Feasibility of manufacturer’s loss spreading3) Utility of Product4) User’s ability to avoid danger5) User’s awareness of danger6) Likelihood and seriousness of injury7) Ability to eliminate danger without impairing utility or raising price too much What the hell is the learned at hand test? Denny v. Ford Motor Co.A product may satisfy the risk utility test and yet be defective under a consumer expectation test. A warranty claim might permit recovery where a strict liability products claim might not.  "Mandatory Proof of a feasible alternative design." General Motors Corp. V. SanchezRequirement that plaintiff show evidence of a safer alternative design can be met with an experts opinion testimony about alternative even if the alternative design has not been tested or been subject to peer review.  

Warnings and InstructionsRichter v. Limax International

Manufacturer is required to provide warnings of dangers that are reasonably foreseeable in light of the intended use of the product.  

Plaintiff's Carel;essness or Misuse of ProductSmith v. Ingersoll-Rand co.All types of plaintiffs negligence in connection with a product related injury will be treated under comparative fault principles.  Daniell v. Ford Motor Co. Misuse of a product may prevent imposition of design defect liability. Trull v. volkswagen of america, inc.Crashes are within the foreseeable uses of motor vehicles. In a crashworthiness case, one plaintiff shows that the design was a substantial factor in producing injuries greater than those probably caused by the initial impact, the defendant has the burden of showing which injuries were atributable to the initial impact.  Hernandez, v. Tokai corp. risk benefit The plaintiff sought damages on behalf of a young child who was injured in a fire started by another child's use of a disposable cigarette lighter. The plaintiff alleged that the lighter was defective because it was not childproof. The trial court granted summary judgment for the defendant, on the ground that the defendant had no duty to incorporate features that would increase safety only for unintended users of the product.  Texas- must prove proof of feasible alternative design in discussion.  Res ipsa loquitur permits an intference of defendant's want of due care when the following three conditions have been met: "a. the occurrence itself ordinarily bespeaks negligence b. the instrumentality was within the defendants exclusive control; and c. there is no indication in the circumstances that the injury was the result of the plaintiffs own voluntary act or neglect.  

Words to use an Know:______________________________________   Actual damages – an amount awarded to a complainant to compensate for a proven injury or loss; damages that repay actual loss  

Compensatory damages – damages sufficient in amount to indemnify the injured person for the loss suffered.   Nominal damages -   Punitive damages – Damages awarded in addition to actual damages when the defendant acted with recklessness, malice or deceit.   What is the purpose of policy? To deter antisocial behavior   Subjective -  Get in the mind of the wrongdoer  Objective - The reasonable person   Dual intent -intend contact plus that the contact be harmful or offensive (to the dignity of a reasonable person)   Dignitary tort: A tort involving injury to one’s reputation or honor. In the few jurisdictions in which courts use the phrase dignitary tort(such as Maine ) defamation is commonly cited as an example.    

1. Survival damages are awarded to the estate of the person whose death is caused by the tortfeasors act.

2. Wrongful death damages are awarded to those who depended on the decedent for emotional or financial support.  Questions: noneconomic damages; how do we value what a persons life is worth? -Pain and suffering: per diem calculations in some jurisdictions but are based on nothing. Two different types one is objective and one is subjective.

Break arm is objective.Headaches from a knee injury is subjective. Where no physical manifestation can be seen. Not readily apparent to most jurors. Must be proven by expert.