TORTS OUTLINE – SPRING 2004 – SELMI

I. OverviewA. Definitions

1. Tort: wrongful (civil) act done to someone for which there is compensation

2. Compensatory vs. non-compensatory: the loss entailed in some injuries is simply borne by the person who was injured (non-compensatory), while for some, it is born be the person doing the injuring. The purpose of tort law is to compensate.

3. Fault: intentional or negligent tort. Without fault, every injury’s causation would be liable, which would be too many cases, and also would allow people to be punished when they weren’t blameworthy.

B. Categories of torts:1. Intentional Torts: someone intends an action that result in an injury

(very small portion of all torts)

2. Negligence: someone’s unreasonable act results in an injury (largest portion, especially with expansion in product liability)

3. Strict Liability: we only care about whether an injury occurred; fault is not relevant (second largest portion)

II. Intentional TortsA. General Characteristics of Intentional Torts

1. FAULT: Intent: Purpose to achieve result or Knowing that result is substantially certain. (Garrett)a. Capacity/Responsibility (characteristics of ) issues:

(1) Effect of child’s age:(a) Majority rule: Ability to have intent varies with the

child; no categorical definition.(b) Minority rule (“Rule of 7s”): if you’re under 7 you

can’t commit a tort.

(2) Insanity: If has intent, insanity is not a defense; crazy intent is still culpable. The reason he has the intent is that he is mentally ill, but we don’t care. If you have the requisite intent, you can be found liable for an intentional tort even if you are crazy. The law doesn’t care why you’ve got the requisite

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intent as long as you do.

(a) Critique: Is it correct to assign liability to an insane person? Assigning liability w/o fault is wrong (tricycle case)…we can’t give an innocent person liability just b/c they caused a result. Each reason from the Polmatier case can be questioned. The rule is what it is, but we should (on an exam) state that there is questionable justice.

On the other hand, a benefit is that you can administer the rule in the same way you for any intentional tort. We’re treating insane defendants like anyone else, and all has to do is

(b) Examples: Hypo: A who is insane believes he is Napoleon and the nurse who confines him in his room is an agent of someone. He attacks the nurse and breaks her skull. Can he be held liable for battery? Does he have the purpose or knowledge to have a harmful or offensive result? YES.

Hypo: A is suffering from epilepsy, goes into a state where he is unconscious of his acts and is unable to control them, and strikes B. Is there battery? NO. There’s no volitional act. And, there is no indication that the person had purpose or knowledge b/c he’s in a catatonic state.

b. Effect of mistake: Intending a tort against A in the mistaken belief that A is in fact B still has intent for the tort against A.

This is where hits the intended target, but they were mistaken about what the intended target was (hitting the twin, or hitting wolf aiming for Lassie). This issue here is mistake: they did what they intended to do. It’s just that they were mistaken as to the object of the intent. They still have the intent; it’s not quite transferred intent. (see transferred intent below, under doctrine of extended consequences.)

2. Doctrine of Extended ConsequencesA person is responsible for all of the consequences of their intentional tort. There is no restriction based on forseeability.

HYPO: throwing eraser away to wake someone up, but hits them in the

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nose. Victim becomes convinced (erroneously) that his nose turns inward in an unfixable way, and goes crazy. Is there a tort? Yes: battery. Liable for the bizarre damages? Yes; if there’s a complete tort, you’re liable for all consequences.

a. Transferred intent: Intending to commit a tort against A but resulting in a tort against B is culpable for intended tort against B.

Prosser thinks that you can have transferred intent between any of the old “Trespass” torts (battery, assault, trespass to land, trespass to chattel, false imprisonment. (Can’t use it for conversion or intentional infliction of emotional distress.)(1) Example of transfer b/c of unexpected victim:

Davis case where you hit a different target than what you were aiming at (bad shot).

(2) Example of transfer b/c of unexpected result:Altiers case where rock thrown with intent to scare (assault) A is liable for battery when it hits B, even though he didn’t know B was nearby. is liable for the battery despite intending the assault, and is liable for the battery against B despite intending the tort against A.

(3) Rationale: has a very culpable state of mind. When you commit a battery, you’re not doing something socially useful; there’s no reason to excuse you for being a bad shot or mistaking your target for someone else. This isn’t a very logically satisfactory outcome. It’s intended to fulfill the elements of an intentional tort…we just WANT to get him because he’s culpable.

3. Damages:a. Nominal: if there is an intentional tort, there will be a

recovery of at least $1.b. Compensatory: compensate for the losses caused by the tortc. Punitive: this is where there are big dollars…there’s not

punitive damages for unintentional torts.

B. Battery1. Purpose of the tort: to protect bodily integrity (the harmful contact)

and bodily autonomy (the offensive part)

2. Elements: “A person is subject to liability for battery when he acts intending to cause harmful or offensive contact, and when a harmful or offensive

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contact results. Contact that is offensive to a reasonable person is offensive contact. And, there must have been a lack of consent to the contact.Snyder

a. Fault: Intent. “To be liable for an intentional tort, the must act with the purpose of causing a harmful or offensive contact, or act with knowledge that a harmful or offensive contact is substantially certain to occur.”(1) Fault must be alleged for the to have a prima facie

case.Van CampFACTS: alleges that she was walking on a sidewalk, and was hit by a tricycle driven by a tricycle driven a 3 y/o. She alleges that a serious injury to her Achilles tendon resulted, requiring surgery. does NOT allege fault.

PP: Trial court dismissed the suit for failing to state a cause of action.

HOLDING: Appeals court affirms the dismissal. Fault is required for battery.

**Here, it is likely that fault wasn’t alleged because it couldn’t have been proven: it would be hard for a 3 y/o to have the reason that would constitute intent since there isn’t an appreciate for consequences. Similarly, it would be hard for a 3 y/o to act unreasonably since they don’t really possess reason. A 9 y/o, on the other hand, may have fault.

(2) Even if a harmful or offensive contact is not the ’s purpose, a defendant may have the requisite intent if he knew that a harmful or offensive contact is substantially certain to occur.Garratt

FACTS: alleges that as she was about to sit down in a lawn-chair in the backyard, Brian deliberately pulled the chair away from her. says that he moved the chair, sat down, and when he noticed that Ruth was going to sit where the chair was, tried to move the chair back but couldn’t. Trial court accepts the ’s version, finds that he lacked purpose.

HOLDING: Court remands to find out if he had knowledge that a harmful or offensive contact was substantially certain to occur when he moved the chair.

**Substantial certainty probably requires a certainty level

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in the mid 90% range. For levels of awareness of risk that is less, we may find for recklessness.**Note that age is relevant here only to the extent that it reflects the ’s ability to have the requisite intent.**It doesn’t matter HOW Brian knew: if he saw her sitting, there would be an easier sell that he had the requisite intent than if he didn’t, but not seeing doesn’t automatically preclude liability and seeing doesn’t produce liability inherently.

(3) It is possible that purpose to cause a harmful or offensive contact could exist even if there was not knowledge that there was a substantial certainty of harmful or offensive contact. The two are separate concepts.HYPO: Hating , throws a rock not expecting to hit her b/c she’s 40 yards away. Does defendant have enough intent for a battery? I.e.: is it possible to have purpose w/o knowledge? Yes. There was purpose to hit her, despite not thinking it could go that far.

(4) DUAL INTENT is demanded: the contact must be intentional, and the harmful or offensive quality of the contact must intended as well. This is the VAST majority rule (though a few courts have moved to demanding only that the contact be intentional).

White v. MunizFACTS: Alleged battery from a person with senile dementia. We need purpose or knowledge to make a harmful or offensive contact, and a resulting harmful or offensive contact. Here, ’s lawyer argues that a jury instruction that she had to appreciate the offensiveness of her conduct is in appropriate.

ISSUE: Is it possible to intend an act of striking but not intend harmful/offensive contact?

HOLDING: Yes. Dual intent is required.

DISCUSSION OF DUAL INTENT RULE:(a) Outcomes:

i. Dual intent seems to produce the wrong result for:HYPO: Italien guy on bus pinches someone. Is it a battery even though they don’t have the intent to offend through their contact? NO. You have to intend that your contact be offensive. Is this the right

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outcome though?

HYPO: highschool football player who doesn’t know when to stop on a date. He really doesn’t know of lack of consent, he

ii. But…it produces the right result for

The hug that results in the injury. With the dual intent rule, there is no liability to the hugger. But, if there’s a singular intent rule, we would find liability if the hug was intentional, no matter how unintended the harmful result.

(b) Potential solution: Keep DUAL intent, but say that the intent you need is to cause a harmful contact or offensive contact, or if you don’t have that contact, if a reasonable person would know that the contact would be harmful or offensive, then you do have the requisite intent. This lets off the hugger (a reasonable person wouldn’t know) possibly lets off the bus guy, gets the football player.

(c) Problem with the solution:This takes intent out of the person’s head, and redefines it to say that someone is liable even if a reasonable person should have had it. We’ve turned it from a subjective test to an objective test.

(d) Bottom line:majority rule is dual intent. The problem is only going to arise in idiosyncratic situations: a foreigner or an autistic type person who does something offensive but does not have the dual intent. Adding an objective component could solve some of the problems that the dual intent leads to, but this changes the nature of an intentional tort.

(The objective component in how the offense is perceived is to constrain idiosyncratic plaintiffs…but does the situation ever really come up where we need it? CHECK ON THIS.)

(5) Transferred intent applies: if has the requisite intent for a battery upon A, but unintentionally hits B, he is liable for battery upon B even if he didn’t know B was there.

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Davis

FACTS: shot at A who was riding a motorcycle, hit B by accident.

HOLDING: Liable for battery at B despite having the intent only to cause harmful contact with B.** This illustrates the culpable nature of the tort: you had the requisite (culpable) intent, it just turned out differently. (We also have a “doctrine of extended consequences, where you are liable for a MORE harmful contact than the one you intended).

HYPO: Mortal enemy, who you see walking down the street. You loose control of yourself, tackle him to the ground, but it’s his twin. Is this a battery? Yes, because of doctrine of transferred intent, but in a way we don’t really need this. You had intent to harm THIS person, you just made a mistake as to WHO this person was. Pure transferred intent is where the person you intended to harm isn’t harmed because of a “miss”, not because of mistaken identity.

Remember, with transferred intent, we have to make sure the had the requisite intent to cause harmful/offensive contact with A.HYPO: Dean and the pie. near end of semester, everyone is eating pie. Class wiseacre says “food fight”, and everyone starts throwing pie at everyone. You throw your portion at a classmate near the door (across the room), but it hits the Dean instead. Is there the requisite intent? If everyone is in the on the game, there is no knowledge of a substantial certainty that a harmful or offensive contact will occur. If this was a bystander, maybe it’s different?

b. ACT: the threshold test is that the ’s action must be voluntary; a volitional act

HYPO: At party, football team plays “pick on DuPris” (100 lb weakling), throws DuPris into the pool. In the pool, DuPris hits Palmer who breaks his arm. Palmer sues DuPris for battery. Can this be a battery? No. DuPris lacks intent, but before we even get there, we note that there is no voluntary act.

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c. CONTACT:

There is no requirement that physically touch the defendant; a gunshot is still a battery. However, contact must be physical in nature. Particulate matter may be capable of contact, but waves (sound and light) probably cannot.Leichtman

FACTS: DJ blows smoke in the face of an anti-smoking advocate.

HOLDING: Battery. Contact resulted from the particulate matter in the smoke, and the act was intended to be offensive (we infer this b/c the DJ knew that this was an anti-smoking advocate, so at minimum we say that he had knowledge of the substantial certainty , and was offensive.

HYPO: You live next door to a person who is totally offended by most modern media, and you blare loud Eminem music at them for 24 hours. No battery; the sound wave isn’t capable of contact. This might be a nuisance though.

Also, pulling the plate out of the patron’s hand (the black man in the 50’s) was a battery b/c the object was connected to the person. Same result for a case where a rock hits a bike someone is riding.

d. Harm: was there a physical/emotional injury (i.e.: something painful)?**Note that there is still battery if harm is intended and offense results.

e. Offensive: was there contact that would offend a reasonable sense of personal dignity?**Note that there is still battery if offense is intended and harm results.

A determination of the intent of the actor is subjective: we are trying to get at what is going on in someone’s mind. However, the determination must be made through inferences from facts.SnyderFACTS: In frustration, a doctor grabs nurse by shoulder and forces her near wound after she presents him with what he feels is an inappropriate surgical instrument

PP: Case had been dismissed for failing to state a cause of action.

HOLDING: This reverses. A reasonable person could conclude

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that the doctor had intended offensive contact. The contact is possibly offensive because the doctor had other alternatives for whatever his motives were, and the forcing to the wound is possibly humiliating. This is a closer case if it’s just the grabbing.

Contact that has been explicitly not consented to (where the knows of the lack of consent) is inherently offensive in most cases, despite the “good intentions” of the toucher, b/c part of the point of tort law is to enforce the idea of personal autonomy; it’s not just about redressing and preventing injury.

Cohen- FACTS: Patient told hospital that her religious beliefs make it unacceptable for her to be touched while naked by a member of the opposite sex. A male nurse DOES touch her.

- HOLDING: Because of the expressed lack of consent, we can say that the contact was objectively offensive. We will have no trouble allowing the religious basis for this out of mainstream belief, but someone leaving a classroom who didn’t want to be touched couldn’t probably create a battery.

Real action here is whether the nurse intended to cause the offensive contact. If he didn’t know of the objection, then there is no intent. However, if he did know, then there’s intent. CHECK ON THIS.

However, there are boundaries. We won’t allow too idiosyncratic refusals of contact. Note that the rule contains an OBJECTIVE requirement for a perception of offense in the , but a SUBJECTIVE requirement for perception of offense in .HYPO: Leaving the classroom just before the crunch at the door, someone declares loudly that they do not consent to be touched. Is touching them a boundary? No. This is not an objectively reasonable perception of offense on the part of the .

f. Lack of consent is necessary for the tort as well.

3. Other issuesa. Defenses

Insanity is not a defense to a tort; it is relevant only to the extent that it reveals a lack of requisite intent.Polmatier

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FACTS: Insane guy kills someone, says he wants to kill him for various crazy reasons. Under normal situation, this is a slam dunk case.

HOLDING: No insanity defense, but rationale is problematic. Court says we’ll allocate cost of harm to the person who caused it despite a lack of meaningful responsibility (assuming that insanity precludes culpability generally b/c it’s not the person’s fault that they had whatever intent they had.) This is problematic because it’s exactly the same as why we didn’t hold the kid on the tricycle liable: we generally want fault to be a part of the equation.

b. Liability for the acts of others.

There can be aiding and abetting of a tort: Is this because encouragement of another to act is itself an act? CHECK ON THIS.Leichtman: Other DJ in room who didn’t blow smoke found liable for the tort too.

Employer liability: Respondeat Superior or “Vicarious Liability”Leichtman: Employer not liable for employee’s intentional torts if not performed in an employment capacity; just being on the job isn’t enough to confer liability on the employer.

Parental liability is Respondeat Superior as well, if child is ordered to do something by the parent, is acting as the parent’s employee (if so, the employer rule of having to be in the employment capacity), or through the failure to control a wild child.

4. Approach:First, ask: “Was there an intent to cause a harmful or offensive contact?”Second, ask: “Did a harmful contact result?”If not, ask: “Did contact that offended a reasonable sense of personal dignity result?”**Make sure there was no consent to the harmful or offensive contact; a lack of consent is an element as well.

5. Illustrations:a. Wife-beater: angry at wife, repeatedly hits with fist. This is a tort

because the hitting is intentional and we can infer an intent to achieve a conduct that was harmful, and a harmful contact resulted.

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b. The tree in ’s yard that appears to be healthy is actually rotten and blows over in the wind and strikes someone. Clearly no intent. Negligence? Would we require someone who owns a tree to have inspect it? Probably not: the law doesn’t usually require affirmative acts; obligations to do something require people to spend money. We would have to balance the costs of that expense vs. the benefits that would be created. In many cases, we would say that costs of prevention would be too high.

c. Standing on sidewalk: a car veers out of control and runs you over. The driver remembers nothing about the event. Can you recover? Probably not. Point is that we have to show fault…and that may be hard here. We may give the plaintiff a break and assume was at fault absent other allegations but that’s not likely the case here.

d. Shoving into locker despite no physical injury: a lack of a harmful result is just means there has to be an offensive result that was intentional. Here, we can infer no purpose other than intending an offensive contact from the shove, and offensive contact clearly resulted.

e. Electric shock horseplay when victim was trying to avoid it: the victim was not involved in the horseplay as a willing participant, thus indicating a lack of consent that we can infer the knew about. Thus, there was contact with an explicit lack of consent: we can infer an intent to cause offensive/harmful contact and harmful/offensive contact clearly resulted.

f. Kissing Judge: Judge kisses stenographer after he says “I don’t want to clash (i.e.: fight?) anymore”. Judge says “well, we just clashed. Is there the requisite intent? Probably. Not to have harmful contact (there was no physical injury), but probably to offend.

g. Sleeping Beauty: Assuming Prince had requisite intent, could this be a battery if she found out later she had been kissed while asleep and then was disgusted? Yes. She doesn’t have to be awake at the time.

h. Medical Emergency: In the midst of a normal procedure, Dr. moves patient in a way he knows will be painful and was painful. Is there a battery? Yes. Don’t be fooled into normatively assessing situation to decide if it’s a battery. Check each element: there was an intent to cause a harmful contact (albeit for a good motive) and a harmful contact resulted. HOWEVER, note that there is a defense here, despite there being a prima facia case.

C. Assault1. Purpose: protects freedom from apprehension of a harmful or offensive

contact with one’s person. We ought to have freedom from apprehension that is intentionally caused by others.

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2. Elements: An assault is intentional (and actual) infliction of apprehension of an imminent harmful or offensive contact.a. Intent: Purpose & Knowledge of substantial certaintyb. Apprehension: Fear is not apprehension. The Rock doesn’t have

“fear” of a punch thrown by Danny DeVito, but he has apprehension.

c. Imminent: The contact threatened has to be imminent; future threats aren’t assault. Future threats are intentional infliction of emotional distress. This makes sense when one considers that the emotional reaction to an object coming at you is much different than the reaction to hearing of a threat.

3. Rules:a. Mere words are not assault. There has to be an overt act that

accompanies the words. The overt act must accompany the words. (Does this make sense? Really no…words can cause the same kind of apprehension. Fortunately, it takes very little of an overt act to take care of the apprehension.)

b. Reasonable apprehension on the part of the must be caused. Strange apprehensions must be excluded.

c. Does every battery include an assault?No. B/c it’s possible not to have that apprehension if you aren’t aware of the contact before it’s happening. Still, some courts will toss out this logic and say that every battery includes an assault. It just isn’t right to say every battery includes an assault … conceptually, Sleeping Beauty wasn’t assaulted b/c there was never any apprehension of contact.

d. Words as negating intent as a matter of law:HYPO: Greg tells Selmi that he pays good money for his education, and you’ve taught me nothing. If it weren’t for your gray hair, I would thrash you. Apprehension is created, but there is no assault. The words negate the intent…we have to look at what the person is saying. Words as a matter of law can negate intent. Here, there is no chance Selmi will lose his gray hair imminently.

HYPO: “I would whip your ass any time anywhere.” Assault (assuming there is actual apprehension)? Probably not. He may have had the requisite intent, but the court says this is a jury question.

e. Apparent ability (corollary of reasonable apprehension rule) can create a reasonable apprehension even if there was no actual ability to create an imminent harmful or offensive contact.

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HYPO: Robbery; defendant points a gun at everyone in the bank, and says hand over your money. They catch guy later, but gun was unloaded. Assault? Yes: he intended to cause apprehension, and there was (reasonable) apprehension. As long as the has the apparent ability to do so.

If it’s clear to everyone in the building it’s a toy gun, then any apprehension is probably not reasonable. On the other hand, if the guy looks violent, there’s an argument to be made it’s reasonable.

f. Improper condition.

HYPO: Robbery w/ knife to throat. “Give me all your money now; if you give it to me, you’ll be fine.” Assault? This is called an “improper” condition, like “your money or your right.” can’t claim no assault because of putting a condition. There was clearly intent to create apprehension, and apprehension was actual and reasonable.

g. Fear vs. apprehension: fear of being harmed isn’t necessary. Apprehension of the harmful contact is different than fear of it.

h. Tranfered intent applies: intent for battery against one person, and resulting assault against another person is still liable for assault.

D. False imprisonmentIf intentionally and actually confines with the ’s knowledge (note that knowledge is not required if harm results) and against the will of the , the is liable for false imprisonment.

1. Purpose of the tort: protection of the freedom to move.

2. Discussion of elements:a. INTENTIONAL: purpose or knowledgeb. ACTUAL CONFINEMENT:

(1) Physical restraint is not needed for the confinement to be actual; there’s a difference between restraining and confining.McCann v. WalmartFACTS: Employees initially prevent from leaving the store by (we think) grabbing a shopping cart, and then detain family on suspicion of theft for one hour, telling them that police are being called and that they “have to stay.” An employee is with them at all times during the detainment. In fact, police WEREN’T called, and they didn’t shoplift, which became apparent when the security guard who was called to see if these were the shoplifters said they weren’t.

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HOLDING: Tort. No requirement of actual physical restraint.

**As a lawyering technique, it is important to not only identify facts that meet the elements of the tort, but also those that illustrate the severity so that recovery for damages can be high. There’s no precise formula for damages, so illustrating severity is key. Here, the length of time and the lack of good faith are both key elements for the damages question.

(2) Confinement means restricting someone within boundaries such that they are precluded from undertaking the activities of their daily lives. It is thus possible that someone could be confined to a city, but it gets harder to think of situations (maybe the jet-setting business leader) where someone would be confined to a state or country.HYPO WESTERN MOVIE: there’s been a murder, and the detective interviews someone who they think has committed a crime, and they say “don’t leave town.” If they had no right to do that, is that false imprisonment? Is there intent to confine? Yes. Is this like excluding someone from a place (which wouldn’t be confinement…lack of access isn’t confinement)? This is different. This IS confinement: there are boundaries all around you.

(3) Lack of access to a place is not confinement: telling someone not to come into a bar is not confining; it’s excluding.Student activists: faculty wants to change the grading system and students want to attend the meeting, Dean posts security guard outside. LACK OF ACCESS TO SOMETHING IS NOT FALSE IMPRISONMENT.

(4) Without an obligation to act, the omission of not freeing someone from an imprisonment (assuming you didn’t cause it) is not a voluntary act of actual confinement.

An obligation to act can result from promising to release someone, or possibly from a relationship suggesting an obligation to assist in this way.Fighting neighbors: husband and wife are always fighting, and you’re coming home one day, and as you’re walking by the front, you hear a yell for help from the husband. Wife has blocked husband in from the outside with a couch. You can’t move the couch easily. Husband says he’s confined by the back door too when you suggest that. All windows are covered with bars. You CAN move the

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couch, but you say you don’t have time. Guy stays all night, decides to sue you for false imprisonment.

Is there knowledge that confinement was substantially certain to occur by not moving? Was there actual confinement? Yes. Was there knowledge on his part? Yes. Was there a lack of consent? Yes.

Here, this is like an omission to act, but there was no obligation to act. If someone undertakes an obligation to get someone out (maybe a promise to release), THEN there’s liability.

(5) is not actually confined if there is a reasonable means of escape. What constitutes a reasonable means of escape is based on the situation, but as the is very unsympathetic, it will take very little risk to the to make escape unreasonable. This is basically just another way of asking if they are actually confined.Angry roommate: is angry at , blocks only door out of apartment very effectively so there’s no exit. However, there is a window out, and the apt. is on the first floor. It depends on whether there is a “reasonable” means of escape. If yes, you’re not imprisoned. If no, you are imprisoned. EX: if person is very heavy and couldn’t lift himself over the ledge. Not a reasonable means of escape. Probably not a reasonable means to escape if it’s the second story.

c. ’s KNOWLEDGE: must be aware of his confinement at the time of the confinement. However, if actual harm results from the confinement, there is no requirement of plaintiff’s knowledge.Nice police officer: people are drunk on memorial day weekend. Cops find guys drunk in an alley. One leaves, but the other two are ordered by the officers into the police car. Instead of arresting them, they take them to an abandoned golf course outside of town and let them go. Guy who sues says that he doesn’t remember being in the car? Is this false imprisonment? At first, it seems that No, b/c there is a lack of the awareness of the confinement. On the other hand, he might have been aware of the confinement at the time. We would have to have a witness saying that what he said or reacted at the time suggested awareness.

Suppose when they’re out on the golf-course, they wander onto a freeway and get killed. If there’s false imprisonment, now we can use doctrine of extended consequences to get the damages for the deaths.

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will be liable for harm during imprisonment, and harm resulting form imprisonment because of where they’re let out.

Exception to requirement of knowing of confinement: if you have no knowledge of confinement but are injured while in there, you can recoverEx: sleeping while confined, baby in the bank vault.

d. AGAINST THE WILL OF THE : if you’ve agreed to the confinement you can end it at any time, but if by ending it you are backing out of an original agreement AND there is some detriment to the confiner, there is no false imprisonment.Airplane ride: you ask your friend to ride from LA to SLO. You get to SB, and demand to be let out. Can you sue on the theory that at the time you asked him, the imprisonment became against your will? If your friend is on a business trip, and you knew that he can’t land in SB. Here, no false imprisonment.

Other question is what if it’s a car and you demand to be let out in SB? This is a closer question. The detriment to the driver is so little here (pulling over for five minutes) that this might be false imprisonment.

3. Policy problem: Shopkeeper’s dilemma:There’s no right to detain on suspicion for theft for shopkeepers under the common law. If a shopkeeper detains, they are risking liability for false imprisonment if it turns out that no items were stolen by the detainee. Because of this, most jdx. have given stores the right to detain for a reasonable investigation if you have a reasonable belief that they’ve stolen.

E. Torts Against Property1. Trespass to land (real property)

Intentional entry onto the land of another is trespass to land, as is staying or leaving an object behind after entering involuntarily or permissively.

a. Purpose of the tort: to protect the right to exclude from real property

b. Discussion of elements.INTENT: The intent here must just be to enter. There is no requirement that there be knowledge that the land belongs to another, or that you have no right to enter.HYPO: slight two second detour onto property to avoid ants. Is this trespass to land? YES. The intent needed is the intent to enter

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the land.

HYPO: You’re visiting grandma in Iowa in a little white house. You drive up, park, see house, knock, and it’s someone else (you’re at the wrong house). Is it a defense that you thought you had the right to enter that property? NO. The intent needed is the mere intent to enter the property. If it turns out that it’s not the property you thought it was, it doesn’t matter, even if your mistake is reasonable.

STAYING OR LEAVING AN OBJECT BEHINDHYPO: Rogers case. is with state dept. of transportation that leases part of guys field to put a snow fence on during winter. Lease elapses. They then come to get the fense off, but they leave the post in the ground. Spring comes, grass grows, farmer runs into the base with his mower and is killed. Is that trespass to land? At time the post got there, there was permission. However, leaving something on the property after the right to do so, leaving something on the property is wrongful.

**Note that there are multiple theories for recovery here: through extended consequences, there is liability for the death as a consequence of the trespass to land. And, through transferred intent, there is a battery.

c. RationaleWhy have such a strict rule? This reflects the esteem the common law held for property rights. Remember though that the tort itself would be worth almost nothing…probably just nominal damages.

2. Trespass to chattel & conversion (personal property…NO TRANSFERRED)a. Purpose of the tort(s): to protect the interest in the owner of the

exclusive right to possess personal property

b. Distinction between trespass to chattle and conversion is one of degrees; TTC is about when there is a harm (INTERMEDDLING) to chattle (a loss of use can substitute for actual damage), while conversion is about totally consuming something so it’s no good for the owner anymore. TTC IS WHEN PROPERTY HAS BEEN “INTERMEDDLED” WITH. CONVERSION DEMANDS THAT WE CAN SAY SUBSTANTIAL DOMINION IS EXCERCISED OVER THE OBJECT.

Ex: denting someone’s can of Dr. Pepper (TTC b/c of the harm) vs. drinking their Dr. Pepper (conversion b/c now it’s gone.

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Ex: Taking a car for a day and returning it vs. taking it for 5 minutes and totaling it. (Second is conversion, first is ttc).

THERE’S NO BRIGHT LINE DIVIDING THE TWO; IT’S ABOUT DEGREES OF INTERFERENCE.

FACTORS (Rst. § 222a) that point to conversion:

(1) Extent and duration of control (2) the defendant’s intent to assert a right to the property (3) the defendant’s [bad] faith (Rst. says “good”, but I’m

organizing this as factors that the more of, the more likely conversion is to be found)

(4) the harm done(5) expense or inconvenience caused

c. Distinction in remedies.

(1) Remedy for TTC is damages (though note that there can also be “parasitic” damages, where the value of an object is one part, and another is the emotional distress that “attaches” to the TTC tort.)Ex: taking someone’s dog and returning it after an hour unharmed. It’s TTC because of the deprivation of use (substituting here for harm). Little diminished value in the dog, but the emotional distress could create parasitic damages.

(2) Remedy for conversion is that the tortfeasor buys the property. (parasitic damages ok here too).Ex: aunt’s ashes being stolen and blow away: both urn and ashes have been converted. Damages for urn are whatever the urn is worth, and damages for ashes are their worth (likely nothing). However, parasitic damages could attach for the emotional distress of losing the ashes of a loved one.

d. Illustrations(1) pets dog despite being told not to. Dog is not harmed. Is

this either conversion or ttc? NEITHER. It’s nowhere near conversion, and it’s not ttc because there’s no actual damage. (NOTE THAT LOSS OF USE CAN SUBSTITUTE FOR ACTUAL DAMAGE).

(2) leans against car. Is there conversion? No; no substantial dominion. Is there ttc? No loss of use or actial damage, so no.

(3) takes care for a joyride against the ’s and puts the dog in the front seat. There is loss of use for car certainly, and

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probably for loss of use of dog (even if it’s only use is being cute).

(4) Kicks dog and pushed car over cliff: if there’s substantial dominion (b/c of substantial damage) to car, then conversion for the car. Less damage to dog, so it’s probably ttc.

(5) Hot area is to bring lawsuits for spam on email for trespass to chattel. Also, harassing emails (no actual damage, but there is use of the computers resulting from loss of time from employees reading them, so we can get loss of productivity…CA supreme court says no way, because they were unwilling to recognize this as actual harm). If there was actual interference in using the system, that might do it.

e. Other issues: (1) Dominion by controlling access

Guy in Alabama is negotiating to buy a car with a dealer, reaches a deal, dealership asks for keys to old car. Deal breaks down, and they refuse to give him the keys back. Then they make him wait for two hours. One possibility is false imprisonment. Also, possibility of conversion for the keys, question is whether there is conversion of car too. This is dominion by controlling access. If there’s some item that controls acces to a larger item and person can’t use the larger item, you can argue conversion. (Court here said this was conversion, but most courts would say this isn’t long enough for conversion).

(2) Receiving property that was wrongfully acquired.(a) If B steals A’s property and sells it to C, both B

and C are liable for conversion, even if C has no way of knowing that B stole it. (I.e.: no reasonable mistake exception).

(b) BONA FIDE PURCHASER IN GOOD FAITH EXCEPTION: If B defrauds A of his property such that A gives it up willingly b/c he’s fooled by the scheme and then sells to C, C is NOT liable for conversion (though B clearly is) b/c B had some title to pass. Of course, if C knows about B’s defrauding, then he could be liable.

**Reason there’s a difference is because A voluntarily gives up the property. Here, B has some right in it (he can pass title), so if C gets it in good faith, A can’t sue C.

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F. Intentional Infliction of Emotional Distress (NO TRANSFERRED INTENT HERE)1. Elements

If intentional OR reckless conduct that is extreme AND outrageous causes emotional distress that is severe, is liable.

a. Defendant acted intentionally OR recklessly (DUAL INTENT APPLIES)

b. Conduct was extreme and outrageous.

“Mere” insults are not extreme and outrageous UNLESS made by public carriers, innkeepers (they have to serve the public so they’re held to a higher standard…however, even this is starting to fade as an exception.)

A power relationship with a vulnerable can make conduct E & O that otherwise would not be, as can repetition of otherwise not E & O conduct.

Ex: could be a tort to try to collect a bill 50 times where one collection clearly would not be.

Being aware of a victim’s idiosyncratic vulnerability and exploiting it is E & O; you can’t be a predator and then accuse someone of being hypersensitive. We don’t need to individualize for idiosyncratic distress in ’s b/c of E & O standard takes care of it. On the other hand, if doesn’t know if ’s vulnerability, conduct that isn’t E & O that offends it won’t meet the E & O element, obviously.

c. Actions of the defendant caused the plaintiff emotional distress** This element is implicit in every tort: Conduct has to CAUSE the result. It doesn’t really need to be articulated as an element of the tort, but we do traditionally.

d. The resulting emotional distress was severe.

For severe, juries may want to see one or more of:(1) Counseling or other medical attention: we infer great

distress if they’re seeking help about it.(2) External changes in behavior

(3)Really, though, many juries will just ask themselves if they would feel extreme distress. Technically, it’s a subjective standard, but it’s clear that many juries go with a gut

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reaction.

e. However: “a claim for intentional infliction of emotional distress cannot be maintained when the risk that emotional distress will result is merely incidental to the commission of some other tort. Accordingly a claim for IIOED will not lie if emotional distress is not the intended or primary consequence of the defendant’s conduct.

f. **Problem: we don’t want too many claims (i.e.: everyday things shouldn’t be enough), but we allow reckless conduct to qualify. This is incongruous.

2. Illustrations of basic elements:

Conduct that taken as itself wouldn’t be extreme and outrageous may make it E & O. And, the context of the relationship of parties defines the nature of conduct: a common theme is that an employer’s conduct may be termed outrageous even though another person doing it might not be E & O. The idea is that someone in a power position preying on a more vulnerable person is E & O.GTEFACTS: Employer repeatedly and after requests to stop does things like charging at employees, verbally abusing them, forcing them to stand for 30 minutes in the office while he stared.

HOLDING: IIED. Even if he argues that the PURPOSE was to get them to shape up and work harder, the complaints about the behavior made it KNOWING that there was IIEOD, which was intent under Garratt.

An extreme insult (though normally just “mere words” and not IIOED) combined with an employment relationship may be enough for IIOED…it’s a close call.TaylorFACTS: Sheriff calls a black female deputy a jungle bunny in front of someone else.

ISSUE: Extreme and outrageous?

HOLDING: Yes. The employment context seems to trump the fact that this would often be termed a “mere insult”. The idea of a particular vulnerability that the employer knows about may be in play as well, and this court seems to hold a public official to a higher standard (which we wouldn’t normally do), but most courts might not convict here w/o repetition.

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3. Interaction with third party:If the is a third party who becomes aware of an interaction between and another, can only claim IIOED from the interaction if was PRESENT during the action that was covered, AND must have KNOWN that was present. This is a bright line test.

WHAT’S THE RST. § HERE? (NOTE THAT THIS MAY GET RELAXED WITH THIRD PARTY PLAINTIFFS COMING ACROSS CORPSES OR BECOMING AWARE OF THE SEXUAL MOLESTATION OF A CHILD, THOUGH IT’S UNCLEAR WHAT DIVIDES THIS FROM OTHER CASES.)Homer v. Long

FACTS: ’s interaction was with ’s wife. Allegation in the case has to do with a set of actions taken by the defendant in response to a situation where the wife was vulnerable, suffering from depression, and uses confidential info to seduce the wife. Accusation is that marriage falls apart.

HOLDING: B/c wasn’t present during the “seducing” there was a missing element, and the tort was not met.

**Courts are very concerned with limiting liability in the “third person” scenario. Ex: h & w have 10 kids, have been married 30 years. W is depressed, goes to therapist, and is seduced. Now, there’s 11 lawsuits, b/c everyone is distressed. There could be no limit.

**Rationale for third party rule: we are arbitrarily limiting liability, accepting that we are going to exclude liability for some individuals who intend that third parties be distressed.

HYPO: Father & daughter live in same house. goes up to house, rings, has deal with elderly father. starts beating up F, daughter sees father with blood all over his face getting beat up. looks up, sees the daughter, and then starts beating the father again. Is there IIOED against daughter? would have to know that this was the daughter, or there’s no intent against daughter. All other elements are met: Present and knew he was present.

HYPO: Same as above, except doesn’t look up and see the daughter. Can daughter recover? No: rule demands that he be aware third party was present.

HYPO: Guy is lurking outside, says to Dad she’s just going to get milk. returns just 20 seconds after the slitting of the throat. Now, the case gets

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worse: neither presence or knowledge of presence is met.

HYPO: Babysitter molests child during babysitting. Parents find out later. Severe emotional distress? No. Not present, no knowledge of presence. HOWEVER, THIS IS ONE OF THE CATEGORIES WHERE THE RULE MAY GET RELAXED.

G. Defenses (Privileges) to Intentional Torts**Do the prima facia elements first, then defenses. For prima facia case, burden of proof (through preponderance of evidence standard) is on the , but for defenses, it shifts to .

1. Protecting Against Apparent misconduct of the a. Defense of Body

(1) Privilege of Self-DefenseAn individual may use as much force as is reasonable to defend himself from attack (i.e.: proportional in response to the force…retaliation is never reasonable).

Deadly force is reasonable in response to a threat of death or great bodily harm (including sexual assault), though some jdx. have a retreat rule for the use of deadly force (must retreat if reasonable under the circumstances, but never from the “castle.”)

REASONABLE: What is reasonable depends on context. Size, physical abilities, weapons of attacker are all relevant. And, the force exerted determines what is reasonable in response. Retaliation is never reasonable. A reasonable mistake does not make self-defense unavailable.

HYPO: You’re in a fight in a bar, and the instigator leaves, you wait inside, and someone says you’d better be careful in the parking lot b/c he’s still out there. At closing, you go to car, and someone runs up behind you. You turn and swing, and hit a cop in the jaw who had come to help. Will self defense be a defense to the claim of battery?

Most courts will not hold liabile for battery: a reasonable mistake in self defense is okay; you can still use the privilege of self-defense. The contrast with this and the Barnum & Bailey principal (battery against the twin not knowing it’s him is just a mistake as to the target and doesn’t change the battery analysis) and the contrast suggests that we hold self-defense in very high regard.

(2) Defense of third parties(a) Accurate perceptions of the need to defend.

The rules in general for the defense of third

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parties (i.e.: “playing the hero”) are the same as for self defense: reasonable force in proportion to the threat may be used, and retaliation is never permissible.

(b) Mistaken perceptions of the need to defend.HOWEVER, if the perception of threat is in error (i.e.: “aiding” someone when they don’t need it, such as when THEY are committing a battery, etc.), there is a SPLIT:i. Some courts treat this like self-defense,

where a REASONABLE mistake is permissible and does not preclude using the defense.

ii. Other courts say that mistaken defense of another is not privileged, thus it would be a battery. (Rationale here is that there ought to be a high bar for inserting yourself in defense of others.)

b. Defense of Property(1) Arrest and Detention

(a) Common-law Privilege: Capture of ChattelsA store can defend itself from shoplifters, but i. Must be in “hot pursuit” of the chattel

(i.e.: have to run after immediately…can’t send detective three days later)

ii. If you make a mistake and detain person and they don’t have the chattel, then you have no privilege. The privilege is to recapture, and since they didn’t have it, therefore there was no privilege. W/o the privilege, liable for battery, assault, false imprisonment, whatever was committed. (see, e.g., Great Atlantic Pacific Tea)

(b) In addition to the Capture of Chattels privilege MOST jdx. have adopted Rst. § 120a: One who reasonably believes that (EITHER)i. another has tortiously taken a chattel

upon his premises, ORii. has failed to make due cash payment for a

chattel purchased or services rendered there,

iii.…is privileged, without arresting the other, to detain him on the premises for

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the time necessary for a reasonable investigation of the facts.

I.e.: (1) A reasonable belief that chattel has been taken creates a privilege for a shopkeeper (2) to detain for a reasonable investigation.

REASONABLE BELIEF: Though theoretically this could include a situation where a defendant has unequivocally manifested his intent to take something w/o paying but has not left, we can’t really imagine a real life situation where a defendant hasn’t yet left and wouldn’t have a good case that they were intending to pay or had only temporarily forgotten. Really, the belief can only be certain to be reasonable if they are past the checkout w/o paying.

REASONBLE INVESTIGATION: This is going to vary with the situation…there’s no bright line rule, so it’s a lawyering point. We can be pretty sure that a public search is going to be unreasonable, as is a search by an investigator of the opposite gender. THIS IS A PLACE TO ARGUE IN THE ALTERNATIVE.

(c) Illustration of both rules:Great Atlantic Pacific TeaFACTS: Geriatric Paul was detained by the manager b/c the manager believed he was stealing one can of tick spray, probably worth <$1. The belief arose as Paul was closely examining labels for compliance with his heart medication, and the detention began in the store (the registers were up front.) After a search, it became clear that Paul did not have the tick spray.

HOLDING: As the jdx. had not adopted Rst. 120a (and the court declined to adjust common-law, as there was legislative intent against it), there was clearly no privilege for Capture of Chattels, as Paul didn’t have the chattel. However, even if Rst. 120a was adopted, it would not create a privilege b/c neither the belief (hadn’t left yet w/o paying) nor the investigation was reasonable.

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**Damages were 10K compensatory, 30K punitive. From a practical standpoint, this type of liability severely constrains what employers can do, so strict safeguards are employed.

(2) Defense of Real Property**Key distinction b/w this and chattels is that someone can’t walk off with property like they can with chattel. (Recapture of chattle is b/c they could lose it permanently.) With real property, they could just go to court to get it back.

(a) Use of force in defense of property.Reasonable force may be used to defend property, generally AFTER a request to the trespasser to depart.

REASONABLE: Deadly force is never reasonable to defend property (we just value life more than property), though normal self-defense privilege can be invoked if the invasion onto real property – e.g., into a bedroom – creates a reasonable fear of death or bodily injury. LIFE IS WORHT MORE THAN PROPERTY.**Note that if a trespasser resists the privileged use of force (again, make sure a request to depart has occurred) there’s no self defense when being rightfully ejected…the trespasser’s response might be a battery.Katko v. BrineyFACTS: Spring gun trap is set up against repeated burglar, blows away half of guys leg. The house is not the residence of the owners, and the owners were not present.

HOLDING: No privilege; can’t use deadly force to protect against property unless the intrusion also accompanies reasonable fear of death or serious bodily harm. Here, owners weren’t present.

**This case’s “spring gun rule”, where a mechanical item can use deadly force in the owner’s absence if it would have been permissible for the owner to use it MAKES NO SENSE. The whole point is that it’s only reasonable to use deadly force if you are in fear for your bodily integrity, and if you aren’t there, then you aren’t going to be in fear

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for it.

**Lawyering point: this burglar got both compensatory AND punitive damages. To frame this for a jury, it would be a good idea for the to frame this in terms of how ridiculous it is to defend bottles with this sort of force, while would want to emphasize the fact that he had no right to be there anyhow.

HYPO: Guard dogs, sign says “Warning, Dobermans loose, beware.” Can you use deadly force if you warn people if there’s deadly force on the property? Outcome will turn on the defense of consent. Is the person by reading the sign in essence consenting to the conduct? No cases on this yet.

(b) Threats of force in defense of property

There is a privilege to threaten force (i.e.: create an apprehension of contact), even deadly force, if reasonable in defense of property. Brown v. MartinezFACTS: After thefts the night before, watermelon patch owner sees boys in southwest corner, he fires a gun to the southwest not knowing anyone is there. This all takes place at nighttime. No intent to inflict harmful contact, in fact he took care to aim in other direction, so there was clearly just intent to create an apprehension of contact. Unluckily, he hit a third boy he didn’t know was there.

HOLDING: Here, the court uses transferred intent in a problematic (probably wrong) way: they transfer his privileged intent for the assault into an unprivileged (b/c of Katko) and hold him liable for the battery. This seems ridiculous b/c the whole point of transferred intent is to punish CULPABLE states of mind, and here his state of mind for the assault was perfectly privileged (it was probably reasonable to fire the gun here).

**Note that the gun use wasn’t even negligent here: there was no way of knowing that the person was there. (BUT ISN’T THERE SOME CASE TO BE MADE THAT FIRING IN A DIRECTION YOU CAN’T SEE MAY BE NEGLIGENT???

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Privilage is only good when it turns out the way you thought it would. “is it possible that privilege intent can be transferred because the amount of force used was not proportional to the need?” Negating any privilege he had “extended consequences”. Office hours

(c) Summary of Defense of real propertyi. First step should be to ask trespasser to

leave, Warning if feasibleii. If the trespasser doesn’t leave, reasonable

force is permissible, but it would be smart to start out gently.

iii. Trespasser has no right to resist. If they do, it escalates to battery and full self-defense privileges can occur.

iv. If someone HAS your real property: SPLIT- SOME courts say you can use trickery only but not force, b/c it’s too risky. Remember, no one is going to walk off with your real property, so it’s better to just go to court for an action for ejectment.- OTHER courts say that you can use force but not deadly force (b/c of Katko)

c. Privilege of DisciplineParents have privilege to use force or confinement within reasonable limits.

Others (teachers, school bus drivers) have same privilege, but it’s going to be a more limited privilege. Teachers can’t use the same discipline that parents are allowed.

2. ConsentWhether there is consent depends on all circumstances; a reasonable appearance of circumstances can suggest that there was consent even if subjectively did not welcome the contact. Said another way: one person is entitled to rely on a reasonable appearance of what the other does to infer consent, which will inherently involve an evaluation based on societal norms. (Berwyn v. Austin ) THUS, OUR JOB ON AN EXAM IS TO SEE THE ISSUE AND MAKE THE ARGUMENTS BOTH WAYS. ISSUES THAT DEPEND ON VIEWS OF CIRCUMSTANCES OFTEN ARE JURY QUESTIONS. “Does no really mean no?”Elements of Consent:(1) person must understand.

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(2) person must be able to weigh the consequences.(3) other person must know of any non-consent

Reverse of the Doctrine of Extended Consequences: once you consent, you consent to all effects of the conduct to which you’ve consented.

Consent demands that the was able to voluntarily and freely weigh all risks and harms known to her and the against any benefits.

(Reavis v. Slominski)If person is unable to say no, then they have no ability to consent. They are always saying yes and they lack the ability to weigh the

benefits and consequences.

a. Entering into consent(1) Expressly: Oral or written consent

(2) Implied through actionsex: Austin v. Berwyn romantic dinner, the moving from the table to the couch.ex: raising one’s arm to receive a shot despite earlier having said you didn’t want it.

(3) Implied in lawex: emergency operation: we assume that the person would have consented.

Doctors who discover an additional need during a surgery may act to address it even in the absence of an express consent because we will imply consent in law.

Kennedy v. Parrot: Doctor performed an operation to remove ovarian cysts where only an appendectomy was planned. Battery? No. Consent is implied in law because we assume that most people would have consented to the further operation here rather than choosing to undergo a second operation.

**now this case wouldn’t come up anymore b/c doctors now use disclaimers. And, medical malpractice is a negligence pursuit in most cases, b/c malpractice insurance covers negligence so there can be bigger verdicts. Still, an unconsented to touching by a doctor is still a battery; it’s just that in a Kennedy situation, we assume that patient would consent rather than going BACK under the knife.

b. Scope of consentThe ability to define the scope of one’s consent flows from the right to personal autonomy.

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Remember though, once consent to a conduct is given, it gives consent to ALL consequences -- regardless of forsseability -- of THAT conduct (i.e.: Berwyn couldn’t claim she didn’t consent to the broken neck if she did consent to the touch.)

(1) Geographicex: if operating on the left ear, starting a right ear operation exceeds the scope of consent…there was no consent to operate on the right ear, and it wasn’t even in the ballpark, so it’s not like Kennedy v. Parrot “unexpected” where there was an implied general consent.

(2) Temporal ex: lease to put the fence on the property for a certain period. Once the lease (i.e.: the consent) expired, there was no consent, so leaving it was a trespass.

(3) ConditionalAshcraft: consent to blood transfusion conditioned on family blood being used. When the condition was not met, there was no consent thus the contact was not privileged.

(Another example is bringing in a resident rather than a doctor to do the operation. Your consent could be conditioned on someone of a specified skill level performing the operation.)

c. Effectiveness of consent(1) Incapacity

(a) In GeneralConsent is not effective if a person lacks capacity to give consent. HOWEVER, if is an adult, incapacity renders consent ineffective ONLY if ’s condition substantially impairs her capacity to understand and weigh the harm and risks of harm against the benefits flowing from the proposed conduct AND has knowledge of ’s incapacity.

UNDERSTAND AND WEIGH THE HARM: Consent isn’t just lack of protest. It demands an active ability to freely weigh costs and benefits of conduct. If that ability is absent due to age, physical infirmity, prior experiences, etc., and knows of this there is no consent. Even an incapacity brought on by drunkenness is enough to

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make consent effective (of course, unless didn’t know of the condition.)

’s KNOWLEDGE: We require to know of ’s incapacity to preclude the consent privilege b/c his knowledge of the infirmity is what makes the behavior culpable; if he didn’t know, he could be operating on what seemed reasonable from the circumstances.

SmolenskiFACTS: took off her own shirt and gave words reasonably interpretable of consent to sex, but claimed she suffered sexual abuse as a child, creating an inability to refuse sexual intercourse, and was thus unable to consent. Suit is for battery.

HOLDING: It would be unfair to hold the doctor responsible if he’s not aware of the plaintiff’s inability to refuse consent; without that knowledge, he would REASONABLY take her actions as consent. On the other hand, if he knew this, then he could not reasonable take her actions as consent. Here, he would be taking advantage of the situation. He would know that there is no consent: if she’s incapable of consenting, there is no consent.

(b) MinorsParents can consent on behalf of minors, and as minors get older and thus increase their capacity to weigh risks and benefits, they become capable of consent to more significant conduct. An 8 year old likely can consent to contact in a football game, while a 16 year old can likely consent to a procedure to mend a broken arm.

(2) Disallowed by Statute (a) Age related

Ex: child labor laws don’t let children consent to the situation.

Some statutes say that minors can’t consent to sexual contact.

(b) Consent to crime (ex: the illegal prize fight)The policy here would be to reduce the illegal

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conduct in general, but it seems unclear which policy does that best..

SPLIT:MAJ: Can’t consent to a crime (i.e.: you could still sue your prizefight opponent) “go ahead risk the crime and the consent is not valid, you’ll have to pay.Minority: you can. “go ahead break the law, there will be no tort challenges,”

(3) Fraud, misrepresentation, or coercion(a) Fraud/misrepresentation

To be effective, consent has to be “informed”; to consent must have been made aware of any risks that the knew of and were not readily available by the circumstances. If one person has material information that the other needs in order to form a full consent grounded in understanding of the consequences and risks, there must be disclosure for the purported consent to create a privilege.Doe v. JohnsonFACTS: Someone sleeps with Magic, and he doesn’t tell her he’s HIV. Consent? No. The withholding of the information means that although the sexual act was consensual, she is missing the crucial piece of information that allows her to assess the risks and thus voluntarily agree to encounter those risks.

**Note that the prima facia case here may or may not depend on Magic’s awareness of his own HIV status. If he knew and didn’t tell, then there’s clearly a battery: he had intent (purpose or knowledge) to contact in a way that was harmful or offensive, and harmful or offensive contact resulted. However, it’s different if Magic doesn’t know: we might be able to hang our hat on his awareness of his own risky activity creating a substantial certainty that offensive or harmful contact would result.

Is there any way that she may recover? If she sues in a jurisdiction that did not have a dual intent need. The intent only needs to be a harmful and offensive contact.

HYPO: Before affair, she asks “do you have

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herpes”, he says “no”. He does have it. He claim consent? No. There’s an affirmative misrepresentation of a fact that goes directly to the consent.

HYPO: Instead, she doesn’t ask, and he doesn’t tell. Is the consent valid there? Now it’s just the Johnson case: he has an obligation to disclose. The man has the knowing intent and there was a harmful offensive contact.

HYPO: She knows, he knows, but never says anything. Here, there is no need to tell…the other party has the requisite info.

HYPO: She should have known. Doesn’t matter in theory…whole point is what she knows, unless we imply consent from the societal circumstances.

HYPO: If doctor in Kennedy v. Parrot knew that cysts are often found in such a case and didn’t mention it, there is no privilege because the purported “consent” did not occur in a situation where the defendant could voluntarily weigh all the risks and harms against benefits.

You can deinitiate consent bc affirmative misrepresentation or an affirmative

omission of the facts.

(b) CoercionIf consent was obtained only through coercion, there is no privilege.

Coercion suggests that consent wasn’t there b/c it was obtained only unwillingly. Remember, consent requires a weighing of risks and a VOLUNTARY acceptance of them. If the acceptance was not voluntary (i.e.: there’s a gun to your head), then consent was not meaningful and there is no privilege.

Payton v. DonnerDoctor gives his patient medication in exchange for sexual touching. Patient sues for battery. Consent is invalid b/c it was obtained under coercion.

**Does lack of coercion this require that there be

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some benefit available to the OTHER than simply avoiding other tortious behavior? Can’t a weighing of evils be consent? CHECK ON THIS.

(4) Treatment of medical consent issues is now under negligence for insurance reasons

3. Necessity: Who should bear liability?a. Public Necessity

(1) Traditional RuleA public official may claim privilege when his facially tortious conduct was ACTUALLY or REASONABLY APPARENTLY a public necessity. Allocate the cost to the invididual who’s property had to be destroyed.

7-up B”public necessitySurocco v. GearyFACTS: Bad fire, Geary blows up house to save others. Suit is for trespass to land (for blowing up the house) and conversion (for destroying the chattels inside…it’s not trespass to chattels because they were DESTROYED). Here, the house would have burned anyway, so it can’t be argued that Geary deprived them of anything re: house. HOWEVER, they could have gotten other things out of the house if they hadn’t blown it up, so the chattels case is reasonable. Geary argues that public necessity makes it okay. It is agrueable that at the time the house was destroyed it was considered a public nussciance. And since it was going to be destroyed it was worthless.

ISSUE: Whether govt is allowed to escape culpability for destruction of a house due to the privilege of the public necessity.HOLDING: Conduct was privileged. Once there was an apparent necessity then the privilege of necessity can be inacted. By destroying Suroccos house they are conferring a benefit on society.

HYPO: Mayor destroyes house, fire sweeps by and its clear that house wouldn’t have burned. Here, the APPARENT necessity is enough to make the conduct privileged.

HYPO: If the house was going to blow up any way, could the ∏ recover? No, its destruction was inevitable. There was no liability because the house was not worth anything, it may not have been destroyed, but it was already

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destroyed.

Freeway HYPO:Why when they were building the 110 Harbor freeway did they not implement Surrocco, necessity to confer a public good?

(2) One state’s modern ruleNO PUBLIC NECESSITY PRIVILEGE: Public may not allocate all of the cost to an individual when it received the benefit of acting out of necessity. SO LONG AS THAT INDIVIDUAL didn’t create the necessity for their own property to be destroyed, e.g.: by participating in the criminal act that was being averted or addressed, they are entitled to compensation (i.e.: the conduct isn’t privileged).

Wegner case: instead of house being destroyed, it was semi-destroyed to capture a dangerous criminal. MN court says you have to pay for this…it’s unjust to make a single individual bear the costs. **Note that this raises a 5th amendment question, but don’t worry about it.To what extent was the courts holding rest upon the constitution.HYPO: New car is wrecked during a police chase. Does Wegner rest on the fact that the property was intentionally destroyed? Not necessarily. Though public necessity is a privilege to intentional tort, we have to look beyond that. Here, we’re using private property to accomplish a public goal. It shouldn’t matter if property was destroyed On the other hand, there is a qualitative difference between intent and negligence; maybe the

HYPO: Person who’s house in Wegner who is destroyed is the drug dealer. Could argue that this is the distinction that makes Surrocco different. You can argue that a fire gathering momentum (i.e.: it gets worse), where the person who owns the house HERE might have created the problem himself and we shouldn’t bail him out then.

b. Private Necessity(1) There is a privilege to commit facially toritious conduct

when necessary to protect one’s own life or property (Ploof v. Putnam). Whether the circumstances make the conduct NECESSARY is a jury question. However, if ACTUAL damages result, the will still be responsible for them (though not for the nominal $1 damage nor any punitive damages (Vincent v. Lake Erie).

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There is a privilege to commit facially toritious conduct when necessary to protect one’s own life or property.

Ploof v. PutnamFACTS: During storm, to save wife and kids, moors the boat on ’s property. Owner says ∏’s trespassing and ejects (unmooring the boat), resulting in injury and destruction of property. sues for trespass to chattel, conversion. (Also possible is the battery, on the theory of contact with an object under the person’s control – like pulling the plate out of the guy’s hand).

ISSUE: Assuming a prima facia case for conversion/battery, does have a defense for defense of real property?

HOLDING: No. The ’s mooring on the property of was privileged due to private necessity. Thus, there was no trespass to land to defend against in privilege. Thus, there is no defense to ’s suit. is liable.

HYPO: Say you know the storm is coming but you stay out on water anyway. Is there still a privilege? Unclear. Is there a difference between the privilege to save yourself and the privilege to save yourself? Maybe no necessity to save property, as you’ve taken on a risk: Life is more important than property (Katko).

If ACTUAL damages result from conduct privileged by private necessity, the will still be responsible for them (though not for the nominal $1 damage nor any punitive damages.)Vincent v. Lake Erie FACTS: Storm comes up, keeps ship lashed to harbor, which damages the dock. Actions were reasonable: there is no negligence. If anything, there’s a trespass to land/trespass to chattel question. Unquestionably, there is the requisite intent: the captain kept replacing the ropes, which suggests he had purpose and CERTAINTLY knowledge to stay on the dock, which he must have known would be harmful. No question that elements of prima facia case is there for trespass to chattel.

HOLDING: Though this was private necessity and thus privileged conduct, is responsible for the actual damages

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to the dock. He is not, however, responsible for nominal or punitive damages.There are damages, this is the difference between this case and Ploof. Once there is damages your private necessity is the reason you must compensate, the develop an unjust necessity. Difference between surrocco is that this was a private necessity vs. a public necessity. Ploof v. Vincent on privileged compensation.

III. NegligenceA. Overview

1. Elements of the Prima facia case for negligent tortsa. owed a LEGAL DUTY

Did the have any obligation to act reasonably toward others? In most situations where someone does something affirmatively, there is no real question about duty.

b. ’s negligent behavior (i.e.: behavior that created an unreasonable risk) was a breach of that duty of careOrdinary or reasonable care is that care which ordinary persons would use to avoid injury to themselves or others under similar circumstances.(“Neglignece” can mean breach of duty: “did they act negligently?” = “did they breach?” Other courts ask about both a and b, others mean all 5 things. We just have to see the context.

c. ’s negligence was an ACTUAL CAUSE of this damage

d. ’s negligence was a PROXIMATE (LEGAL) CAUSE of the damageWe also might have policy reasons for not holding the defendant liable.

e. suffered ACTUAL damages

2. Analytical Stepsa. Figure out which party is the .b. Determine whether the has committed each of the prima

facia elementsc. Ask if there’s a defense because the was negligent as well

“contributory negligence”: did the plaintiff’s conduct meet the prima facia case for negligence?

B. Breach:

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1. Default Standard of care = Reasonably Prudent Person under the CircumstancesIf has exercised the care that a reasonably prudent person would exercise under the CIRCUMSTANCES (internal and external), he cannot by definition have breached the duty of care. The ONLY standard of care is this “reasonably prudent person” standard; the standard of care doesn’t change, though the AMOUNT of care demanded by the circumstances does.RPP TEST “objective”1. What the RPP would have done? objective. 2. What would a RPP have done according to the circumstance?

Subjectivea. individual difference; height, intelligence, etc.

3. How does RPP act if no risk?Not reason to change conduct.

4. If you fail RPP test: your at fault and element 2 of negligence is achieved

Stewart v. Motts “Reasonable Prudent Person” TestFACTS: tried to help with carborator and gas plan (tried to start it w/o gas tank hooked up), but it “backfired” and was burned. wants this jury instruction: “that gasoline due to its inflammability is a very dangerous substance if not properly handled. When an appreciation of such danger, and under conditions where its existence reasonably should have been known there follows high degree of care which circumscribes the conduct of everyone.”

ISSUE: Whether the jury instruction which did not use the term, a higher degree of care is needed?

HOLDING: Instruction would be inappropriate. This is setting up a double-tiered system in determining negligence. It would have a reasonable care standard and a hightened degree of reasonableness. Reasonableness is supposed to be proportionate to the danger, but the standard of care doesn’t change. There is no higher duty of care just reasonable care, which must be proportionate to the danger of the activity. The risk “probability of harm” is higher and since the gas is flamible and explosive.

**Determining what is reasonable under the circumstances is the quintessential jury function; the source of the litigation’s

controversy will be trying to get the jury to go one way or the other. Reasonable care is a legal standard not a juries decision “constant”, by the

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amount of care needed is a jury instruction “always changes” propotionaly to the risk.

a. External Circumstances (Objective element): The PROBABILITY that harm will occur + how WHAT harm would occur = “risk”(1) As risk increases, the AMOUNT of care that a

reasonably prudent person would exercise increases, though the standard of care remains the same.“Ordinary care is the care a reasonably prudent person would use under the circumstances presented in this case. It is the duty of every person to use ordinary care not only for his own safety and the protection of his property, but also to avoid serious injury to others. What constitutes ordinary care varies according to the particular circumstances and conditions existing then and there. The amount of care required by law must in keeping with the degree of danger involved.”

Ex #1: Brenda tries to catch a water bottle with one hand, but tries to catch baby thrown at her with both hands and standing. Why? If the water fell, the most that would happen is water would be lost. If the baby is dropped, it could die or fracture its skull, and we know that a life is worth more than property.

Circumstances change the amount of care that is necessary. There’s a higher possibility that the baby will be hurt than water lost (broken bone more likely than bottle breaking), and harm would be more (person more valuable than property).

(2) Forseeability of risk

There can be no breach of the duty of care for not responding to UNFORESEEABLE circumstances; a reasonably prudent person does not take steps to avoid risks that are unforeseeable.

(3) EmergenciesThough SOME jdx. still use the “Emergency Doctrine”, it’s redundant, and possibly biased in favor of the because it emphasizes the uniqueness of the situation and. Really, the standard of care doesn’t change in an emergency. “Under the circumstances” includes circumstances that constitute an emergency. In an emergency you don’t have the time to properly weigh

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the decisions. The standard of care is the same, but the amount is lower because of the instantaneous nature of an emergency “circumstances”

Lyons v. Midnight Sun Transport Servers IncFACTS: Fatal car crash, where victim was pulling out of a parking lot, and was driving in right hand lane. Conflicting evidence as to whether was speeding or undertook a sufficient move to steer around . wants the following instruction: “In an emergency, a person is not expected or required to use the same judgment and care that is required in calmer and more deliberate moments. If, in an emergency, a person acts as a reasonably careful person would act in a similarly emergency, there is no negligence even if in hindsight it would appear that another course of action would have been safer.”

ISSUE: Whether the instruction is allowed?

HOLDING: Don’t use the instruction. Sudden emergency instruction serves no positive function, duty of care is that of a reasonable person in a situation. No need for subjectivity.

** In an emergency, people don’t have as much time to think, and thus a broader spectrum of activities could be reasonable than if you had time to think about it and later on evaluate the conduct. The “under the circumstances” aspect of the “reasonably prudent person” standard takes this into account, and emphasizing the emergency in a jury instruction would favor the defense.

b. Internal Circumstances (somewhat subjective for characteristics of the )In a case, the appears on “screen one” where we examine his actions as they occurred. On screen two is the “reasonably prudent person”, whose conduct is the standard against which the acts of the are evaluated. If the reasonably prudent person acts the same as the acted, the acted reasonably there can be no breach of the duty of care, because the duty of care is to act as an RPP.

Internal circumstances are those characteristics of the ∆, that we will allow the RPP to take on based on the characteristics of the . In general, (a) we will give the RPP ’s physical infirmities, but (b) will demand a certain minimum amount of mental capacity (likely ordinary intelligence, perceptiveness,

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etc.) regardless of whether ’s capacity is unusually low. However, if ’s capacity is unusually high, we will hold him to the standard demanded of someone with his capacity, giving the RPP his heightened capabilities.

(1) Physical InfirmitiesWe will give the RPP ’s physical infirmities. To do otherwise would hold the physically handicapped to a standard of which they are incapable of attaining.

Risks (probably both the probability of harm and the AMOUNT of harm that would result) to a blind person are heightened in relation to a sighted person in that they can’t be seen. A blind person must exercise the standard of care that a reasonably prudent blind person would exercise in order to avoid injury to himself or others under the circumstances.

Shepherd v. GardnerFACTS: Blind, cataracts, woman trips on raised sidewalk, sues for negligence.

ISSUE: Was she herself negligent “contributory” in being there?

RULE: As to his physical characteristics, the reasonable man may be said to be identical with the actor. A person with disabilities is not required to exercise a higher degree of care in to avoid injury than is another person with no disabilities. He must take the precautions, be they more or less, which the ordinary reasonable man would take if he were blind.

HYPO: What if the city’s potential negligence for the raised sidewalk it at issue? Now, we’re talking about the external characteristic of who uses sidewalks. Not every sidewalk has to be totally smooth, necessarily, but it does mean that we have to take into account the fact that some people are blind.

In evaluating risks to a blind person, ask what amount of care a reasonably prudent blind person would take to avoid injury to himself or others under the circumstances.

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Roberts v. LAFACTS: The person who’s conduct we are evaluating is blind, and walks from one place to another w/o using a cane, and someone is injured.

ISSUE: Is the blind person negligent?

RULE: Evaluate this by determining what the risks are. “What he would normally do” suggests what his assessment of the risks was. Was the risk of going w/o the cane too great? This will depend on the distance, amount of people, familiarity with the place. The more familiarity,the less risk in not using the cane. The more people, … which way does the risk go? On the one hand, people could trip…. Argue this both ways.

(2) Mental CapacityWe will demand a certain minimum amount of mental capacity (likely ordinary intelligence, perceptiveness, etc.) regardless of whether ’s capacity is unusually low. However, if ’s capacity is unusually high, we will hold him to the standard demanded of someone with his capacity, giving the RPP his heightened capabilities.(a) Heightened Mental Capacity: Give to RPP

i. Outstanding mental capability in generalTo avoid breaching the duty of care, a person of extraordinary mental capabilities must exercise the same care to avoid injury to himself and others that a reasonably prudent person of extraordinary mental capabilities would exercise under similar circumstances.

COUNTRY ROAD HYPO: Driving down country road having been there 10 years before, average person wouldn’t remember. This person has a great memory, and is capable of remembering that at a certain point in the road, there is a sharp turn. Do we give this extraordinary characteristic of terrific memory to the reasonable person if our actor is the defendant? YES. Give the RPP the superior memory, and then apply the test.

The would be negligent (acting unreasonably) if they didn’t take precaution

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against curve.

ii. Previous experiences with similar circumstancesA defendant with previous experience in the circumstances is required to exercise the same care to avoid injury to himself and others that a RPP with his experience in the circumstances would exercise.

Hill v. Sparks “Higher level of RPP”FACTS: Guy who had years of experiences with earth mover runs over sister after telling her to stand on the side.

ISSUE: Do we individualize for his experience, or ought his conduct to be judged by the standard of the ordinary person (who presumably doesn’t know about earth movers?)

RULE: RPP here has the ’s characteristic of experience.

iii. PICKING AND CHOOSING: General knowledge?HYPO: Tire blows where doesn’t know anything about tires and lining was visibly worn through. Do we give our reasponably prudent person this characteristic of ignorance in the specific instance? NO.

…however…

HYPO: Car stalls on a street nearby, and somebody runs into them and the reason the car stalled was that the carborator blew. Allegation was that the carborator line was broken and he should have known. Does the RPP know about the carborator? Harder to say. The point is that at some point we make a value judgment on what things the RPP should know about. We could divide between “general” knowledge and “specialized”, but in a way that’s circular, because we’d just be asking what is general, and likely defining it by what a reasonable person knows. You know?

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(b) Diminished Mental Capacity: DON’T give to RPPAn internal circumstance, that by definition precludes someone from exercising RPP level reason will NOT be ascribed to the RPP even if it afflicts the .

To avoid breaching the duty of care, a person of diminished mental capabilities must exercise the same care to avoid injury to himself and others that a reasonably prudent person of ordinary mental capabilities would exercise under similar circumstances.

HYPO: Really dumb guy blows something up by lighting a cirgarette in a garage…he’s just truly major league dumb. Do we give our reasonably prudent person his characteristic of dumbness? NO. We will assume that the RPP has a certain minimal level of: attention, perception, intelligence, knowledge, memory. The objective standard now can’t be met by some people, but we’re just going to demand it. Otherwise, the thought is, it’s just unfair to the rest of the world in that instance.

i. Mental diseaseThe RPP does not have mental diseases; don’t ascribe a condition such as Alzheimer’s to the RPP despite the having it.Creasy v. RuskFACTS: Alzheimer’s patient kicks out and strikes a worker at his assisted living home.

ISSUE: Do we individualize for mental impairments?

HOLDING: NO. You can’t have a reasonable and prudent person with a characteristic that by definition takes away the ability to reason. Even if you’re insane, we expect you to act reasonably even though you can’t. Rationale is the same for why insanity is not a defense (see policy arguments below.) **This is a questionable rule.

Public policy reasons for mental deficiency liability

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1. Allocates losses between two innocents to one that caused the loss

2. Provides incentive to those responsible and have interest in their estates to help restrain there harmful actions

3. Removes inducements for alleged tortfeasors to fake a mental disability

4. creates efficiency by by passing the need to identify and assess the level of a disability

5. forces person with disabilities to pay for the damages they do

ii. Intoxication Don’t give RPP the characteristic of intoxication (here, it’s a voluntary impairment). Conduct for tort purposes is always evaluated as if the was perfectly sober. The reasonably prudent person is never drunk.

HYPO: What about the person who didn’t think they would have to drive and drank, and then HAD to drive to save a life. Here, do we give the RPP drunkenness? Again, we’re making an almost moral judgment here. Point is to ask the question of which characteristics here the RPP has. The black letter rule is that we don’t give the RPP the characteristic of drunkenness.

(3) Youth(a) GENERAL CHILD STANDARD:

For children, the RPP has the same age, intelligence, maturity, training and experience would exercise under the same or similar circumstances. Basically, in the case of a child, the RPP is going to look IDENTICAL to the defendant, unless the child is engaged in “inherently dangerous” behavior (below).

Robinson v. LindsayWe change the general rule b/c children mature differently; they are at various stages of reasonableness. There are some really bright kids, and dummies. It’s not unfair to hold some defendants to a standard they don’t have, but it

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would be unfair to a child, because they mature at different rates. Issue: Whether a minor operated a snowmobile “dangerous vehical” should be held to an adult standard?Holding: When a minor is engaged in a dangerous activity or in control of a dangerous machine, the level of reasonability should be raised to a proportionate standard. “Adult standard of care.”

(b) MODIFIED CHILD STANDARD: Kids engaged in an inherently dangerous activity (i.e.: operating motorized/mechanized vehicle) are held to an adult-type RPP standard. Robinson v. Lindsay

(c) **Point of this youth system is to let kids grow up and to make the kinds of mistakes kids make as they grow up.

2. Negligence (Breach of duty of care) as a rule of lawa. Common law rules of law

Sometimes, we take away the jury’s fact-finding and evaluating function when we conclude that no reasonable jury could convict on the evidence presented. This can happen in both individual cases, when judge feels the instant facts presented are inadequate, or in generic cases, where the “rule of law” has been set for applicable circumstances by an earlier court.

EX: Range of light rule (stopping at night), stop-look-listen rule (at RR Tracks)

However convenient, this rule of law strategy can be problematic when a future case comes up with circumstances that the court hadn’t considered. In creating a rule of law, a court is essentially saying that there was NO WAY a could act reasonably by doing what he did. However, what often happens is that later a court is presented with what hadn’t occurred to it: a situation where a WAS acting reasonably by doing whatever action the rule has said was per se negligent. Contrast the following:

Marshall case: court finds was contributory negligent. How? It says you have to be able to stop within range of lights when

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driving at night, and if you don’t do that, you are automatically negligent. This is a rule of law that is a court-made rule. Court is saying you are negligent if you can’t stop within range of lights. (Range of lights rule).

Chaffin case (one year after Marshall, same jdx.): Guy approaches a car, is dazzled by another car’s brights, plows into a stopped truck. If we apply rule from last case, guy is negligent. He’s driving a car at night, with lights on, and hits someone. Thus, he’s within the rule. Rule is negligent in hitting the truck if they weren’t able to stop within the range of their own lights. HOWEVER, court doesn’t apply the rule. Here, the driver slowed down and proceeded cautiously. This was a reasonable thing to do. Stopping suddenly would create a risk to people behind you. It’s reasonable to go forward while blinded.

This quick reversal illustrates that the “general rule” really was limited because there were people who violated it who we felt were acting reasonably. Thus, it’s not a very good general rule.

**POINT IS JUST THAT COURTS OUGHT TO BE WARY WHEN DECLARING RULES OF LAW.

b. Legislation (statutes/ordinances/regulation) as rule of law(1) Overview

(a) GENERAL (Majority) RULE: Violation of a statute is negligence per se. (Martin)- RATIONALE: Legislative process is very good at evaluating what conduct will be dangerous, and rules (EVEN INVALID IF B/C OF A TECHNICALITY), though non-binding, represent a persuasive definition of what is reasonable to the extent that we’ll take the fact-finding role out of the jury on the theory that no reasonable jury could find reasonable behavior that violated the distinguished opinion of the court. - PROBLEM: There are areas where this gets uncomfortable, just like with judge-made rules of law (i.e.: someone acts reasonably but violates statute, so finding them negligent based on the statutory violation seems bizarre). Thus, there are “ways around” this rule:

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i. Interpret the statute so that it doesn’t apply to the situation, either reading in an exception (or possibly construing it narrowly?) so that there is no statutory violation, and thus no per se negligence. (Tedla)

ii. Recognize Excuses: (Impson)- the violation is reasonable because of actor’s incapacity (sudden heart attack)- he neither does not know nor shouldn’t know of the occasion (taillights go out right after you check them...can’t always monitor them.)- Unable after reasonable diligence or care to comply (impossibility)- Emergency not due to own misconduct- Compliance would involve a greater risk of harm to the actor or others

**To work the excuse has to be in one of these categories. **Note that #5 may be only rarely applied b/c it seems like it’s taking away the finding of reasonableness from the legislature and giving it back to the jury just as though there were no statute.

iii. Minor excuses: General rule is don’t apply statutes to children (Rudes)For same reason as finding minors negligent in general is problematic, we can’t really expect minors to understand statutes. Thus, we ONLY apply statutes to children for negligence when the child is ACTUALLY aware of and understands statute (not asking whether a child of this age would know…children mature differently).

Remember that it’s possible that SOME jdx. use Rule of 7’s, where 0-7 is not capable, 15-21 is just like an adult, and 8-14 is a question of fact for the jury, but most jdx. don’t do this any more.

(b) Making sure the statute applies: Class of people + class of injury (Wright v. Brown)i. must be a member of the class of people

for whose protection the statute was enacted

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ii. ’s injury must be of the class that the statute was trying to protect.

iii. **This test is VERY flexible…we can broadly or narrowly construe statutes to either exclude or include persons or injuries. ON AN EXAM the point is to make a good argument, and use plain language meanings and legislative intent type theories.

**REMEMBER, if statute doesn’t apply, we just fall back to the default “RPP” standard.

(c) Minority rule: violation of a statute is evidence (to be weighed like all evidence) of negligence.

(d) CA rule: violation of a statute is used as a PRESUMPTION of negligence (operates like majority rule…don’t worry about it too much.)

(2) Miscellaneous- If a statute is invalid for a mere technicality (i.e.: gov. didn’t sign it in time), violation is still negligence per se. A statute is merely persuasive; most of these statutes are criminal regulations and are thus not binding on a court in a civil action. Thus, it doesn’t really matter that a statute doesn’t have the formal affect: it’s still persuasive as an expression of legislative wisdom.

- In general, violation of a licensing statute (i.e.: driving w/o a license) is not like violating a statute. Rationale is that not being licensed has no bearing on actual capability or the reasonableness of the action.

- Courts are less likely to find that violation of administrative regulation as negligence per se, more likely to find it as just evidence (b/c there is likely to have been less vetting than in a legislative enactment, so it’s less persuasive).

- local ordinances are just like statutes…no difference in vetting.

(3) Illustrations(a) In general, violation of a statute is negligence per

se.Martin FACTS: Guy crosses over center line, hits buggy () that doesn’t have light on in violation of statute.

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(Buggy violated the statute). Jury weighs violation along with other evidence.

ISSUE: Can recover?

HOLDING: No. Violation is negligence per se.

(b) Courts may reach “tortured” interpretations of statutes to avoid bizarre results when a violator in fact acted reasonably.TedlaFACTS: All pedestrians had to walk on left, and s were on the right when they were hit by a car. Pedestrians were supposed to face the traffic. They weren’t. If we apply the Martin rule, they’re negligent b/c they violated the statute, and the ’s case would end.

ISSUE: Negligence per se?

HOLDING: No. Where statute codifies common law it is construed to presume exceptions that were recognized under c/l even if it doesn’t. (HOLDING FOR THIS RULE ISN’T AS IMPORTANT AS AN ILLUSTRATION OF THE TORTURED ENDS COURTS MAY BE WILLING TO GO TO WHEN A STATUTE VIOLATOR SEEMS TO HAVE ACTED REASONABLY AND THUS ILLUSTRATES THE WEAKNESS IN THE STATUTE’S RULE).

(c) Excuses may be recognized if they fall within an established category. (see above for categories)ImpsonFACTS: violates passing within 100 feet of intersection rule. Did he violate statute? Yes. Here, court entertains excuses: he didn’t see the sign, he forgot the intersection in question, no lines indicating no passing, car in front of him distracted him. Each of these are excuses, but none are in the categories.

HOLDING: Negligence.

(d) In general, don’t apply per se violations to minors. Exception is when the minor ACTUALLY is aware of and understands the statute, which is probably going to be pretty rare.

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Rudes

(e) For a statute violation to lead have implications for the negligence determination (no matter which rule), the must have (1) been a member of a class for whose protection the statute was enacted and (2) have suffered an injury that the statute was enacted to prevent.Wright v. BrownFACTS: Dog in quarantine is released before quarantine period is up. Dog “attacks” and injures , who brings negligence claim based on violation of statute. Unclear whether was bitten.

ISSUE: Class of person and class of injury such that we can treat the violation of THIS statute as evidence of negligence or negligence per se?

HOLDING: Here, court says class of person protected is “members of the community.” Is this accurate? Is it really necessary to protect everyone from Lucky the Spaniel? Or is the protection just against rabid dogs? If then, we’re just trying to protect people who come into contact with rabid dogs.

What is the risk? Being bitten by the dog with rabies.

HaverFACTS: Injury was running over a child. Statute was to only park on right hand side of street. Kid was injured after crawling under car parked on wrong side of street (left side) when car drove away.

ISSUE: Class of person + class of injury?

HOLDING: Court says it’s just to protect traffic flow. Even if it’s to protect all people within street, it’s not clear that the accident with the child is within the class of risks since kid crawled under the car.

**Point is that this is susceptible to manipulation…broaden or narrow is going to be outcome determinative.

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3. Assessing the Reasonableness of ConductWe can only know whether the risks brought on by someone’s conduct were unreasonable if we are aware of the benefits of their conduct, which is often illustrated by the costs of alternative conduct.

Remember too that when someone is injured b/c of a reasonable risk (i.e.: no one was negligent), it is still possible to design a system that can compensate them outside of tort law. Workmans Comp, is an example.

a. Hand’s Risk Utility Formula

If Burden of taking precaution < Probability of Harm X Amount of harm, then was negligent.

(1) Explanation

Basically, as either probability or amount of harm increase, we expect more care in precaution for reasonable people.

Remember, “benefit” is also avoiding an alternative risk.

Also, the risks can’t have been unforeseeable or so remotely likely that they would be treated as unforeseeable by most people.

(2) List of factors: (a) Risk of current conduct: probability of harm

occurring(b) Amount of harm resulting: how bad would it be?(c) Social utility of conduct: (the benefit of the risky

behavior)(d) Alternatives usually it’s not a choice between doing

it and not doing it; it’s a choice between doing it in a somehow more “expensive” way (i.e.: paying additional money for the reinforced strcutrue)

(3) Limitations of the formula:(a) We don’t have the statistical data to plug in for

either:i. Probabilityii. Social utilityiii. Amount of harm

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(b) Hindsight

We’re asking jury to evaluate conduct at time that it occurred…not what we know in hindsight. We have to base injury on what we did at the time. Having said that, juries have the human nature to change mental calculus: it seems more probable looking back (Monday morning quarterback works to the benefit of the plaintiff b/c they get to say what happened to them, while has to say what they did at the time.)

b. Remember, we’re evaluating CONDUCT: you can have negligent action that is extremely well thought out. Of course, the more you think about it, the less likely you’ll do something unreasonable.

c. It’s possible for a risk to be so foreseeable that we wouldn’t expect a reasonable person to attempt to eliminate the risk because people themselves would avoid it. I.e.: we don’t have “don’t swallow” signs on fishhooks.

d. Illustrations(1) Unforseeable risks and risks that are so small that

reasonable people wouldn’t take precautions are excluded from negligence consideration. A person is negligent when the benefit of their choice is outweighed by the likelihood of a certain amount of harm resulting.Indiana Consolidated v. MathewFACTS: Brother pulls lawnmower out away from wall. Checks gas gauge, fills gas tank ¾ of the way. 20 minute gap. Returns, starts lawnmower. Sees flame in engine area, shuts engine off. Opens hood. Sees more flames. Tries to put flames out with towels. Looks for other things to start the fire. Can’t. Decides he can’t push away from garage or he’ll get burned. Goes home, calls 911. Returns, finds garage in flames.

Insurance company is suing Mathew…if insurance company pays on a policy, it now has the right to bring suit that the brother had.

ISSUE: Negligent? HOLDING: No.

ANALYSIS:

(a) Filling tank: company says that he “may” have spilled. This fails here because the facts are already decided by the jury at the trial level, not at the

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appellate level.

(b) Starting in garage: this fails because the risk of the mower starting on fire was an acceptable risk: small (VERY LOW) risk, and averting it would be a huge burden (pushing the car out of the garage, but it’s less of a penalty with the mower). foreseeable risk, but it’s reasonable to ignore a VERY VERY improbable risk. It’s not that there was NO risk, but that the risks were VERY low, so there was no reason why we wouldn’t do that, especially considering the alternative.

**Note that just b/c something is customary doesn’t mean it’s reasonable. It’s possible for the “average” person to be unreasonable in some cases.

(c) Failing to push the mower out after it was on fire.

Suppose: Risk of injury of garage catching flame if he calling fire department is 80%, loss of occurring is 20K, expectancy loss is 16K.

RISK of pulling it out and having it blow it up? (It can’t be 80% b/c that was the risk to the garage). Say 3%. What is the expected loss. Say harm is 3 mil.

IN MOST INSTANCES, YOUR EXPECTED LONG TERM DAMAGE IS MUCH HIGHER FOR HARM TO PERSON, SO THAT SUGGESTS WHAT IS REASONABLE. ECONOMIST WOULD SAY THIS WAS THE RIGHT CHOICE.

(2) Halek: the obviousness of a risk may make the likelihood of its materializing so slight that there is no need to try to eliminate that risk. This is because that when the risk becomes real, people will recognize it and protect themselves. In some instances, it may be perfectly reasonable to allow a risk to occur because the can rely on the other person to avoid the risk.

Hard to tell when this is the case.

(3) Other people’s foreseeable negligence is just one of the circumstances that you have to take into account. You have to treat other people’s negligence as a risk; you can’t assume the world doesn’t act in a negligent fashion.

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Bernier v. Boston Edison Co.FACTS: Old lady gets into an accident, hits sidewalk, post, and car. Two kids are severely injured. Only defendant is Boston Edison, the maker of the pole that hit the kids. These poles had fallen many times before and had it people. Reinforcement caused a small amount per pole.

ISSUE: Was Edison negligent in designing the pole?

ANALYSIS: Edison’s argument that pole was on sidewalk, not meant to be hit, fails. Other people’s negligence is a foreseeable risk that is just part of the circumstances.

One foreseeable risk is that a car will hit the pole. What is the risk that a pole will fall over? Depends on type of pole, how fast car is going. And, here, the pole is by a shopping area, which increases the amount of people. The more people there, the more likelihood that if someone hits the pole it will fall over and hit someone.

One argument might be that we shouldn’t have poles at all…falling poles is unreasonable. This argument fails: giving up the poles means giving up the light, which is a very high cost. We have weigh the costs of the alternative; the benefit of the light is too high to give up.

HOLDING: We’re weighing the alternative of a stronger pole that prevents injury and costs more money. We’re weighing utility of what they’re doing against cost of alternatives and cost of injury.

Here, the jury says it didn’t cost that much more to put hoops in, these were serious injuries, it was WORTH IT to invest in the pole, and to not do so is unreasonable. In essence, this is for the jury to decide.

(4) HYPO: sells a drum of gas to . removes cap and there’s an explosion caused by a spark produced by a condition of undercare in the thread of the cap (something in there that caused spark). Evidence was clear that this was an unusual, improbable occurrence. Could a jury still find that was negligent.

This isn’t a case of “unforeseeable” necessarily. There was some forseeability…it was a very low probability of occurrence. As a matter of law, can you find neg.?

What do we generally expect of when prob/consequences

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get higher? We expect a greater amount of care

HYPO: is working for hammering. doesn’t provide with goggles. Hammering a bolt out, the bolt chips, hits in eye, loses eye. Was negligent? Weigh all factors. Seems like a pretty low probability of harm, but a VERY high AMOUNT of harm, and the burden of precaution (i.e.: buying the goggles) is very low. Probably negligent.

HYPO: Same as above: is already blind in one eye, and it happens again. Here, the severity of harm is MUCH worse: now he’s much worse off b/c he’s blind. However, the probability is lower by half b/c he’s only got one eye now to hit.

(5) Giant Food case:

FACTS: Pursuing a thief, a shopkeeper is sued for negligence when another customer is hurt by the thief running into them

ISSUE: Is it negligent to pursue a thief? Assess risks inherent in how crowded the store is, what qualities the thief has, etc.

How can it be that it’s not negligent? Because the benefit in deterrence and possibility of recovery. We have to weigh the utility of the action that’s imposing the risk. There is a great benefit … in THIS case.

(6) The risk utility formula is just intended to be a description of the thought process that we go through in assessing reasonableness. Reasonableness is the essential jury function. Basically, though, we may feel that reasonableness is based on efficiency: if it would have been WORTH IT to avoid risks, then not avoiding them is unreasonable, and thus negligent.Carroll TowingFACTS: Allegedly negligent act was not having an attendant on the barge (b/c if he had been on the barge, the action would have been stopped)

HOLDING: Doesn’t really matter.

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4. Assessing Damages for Multiple Defendants **This isn’t really a breach topic…consider moving it to damages or causation

a. OverviewHYPO: P v. 1 (80%) 2 (20%). 10K damages to . Ask jury to find whether was negligent. Before we had comparative fault, we just ask jury to find if they were negligent.

Of course, it is the jury’s role to assign these percentages.

We can’t overcompensate by holding EACH liable for the full amount. So, we have to figure out how to share it among them.

There are competing priorities here: we don’t want to hold a defendant liable for more than they are really at fault for, but at the same time there is a sense that we don’t want a plaintiff to bear the risk of having one of the defendants be insolvent.

b. Competing systems for assessing damages:

(The difference between the two systems can be understood as shifting the allocation of risk of one being insolvent.)(1) Common law:

“PRO-RATA” sharing: Common law said split it 50-50 for 2 defendants, 33-33-33 for 3 (etc.).

(2) Joint and Several Liability:(a) Rule explanation

Under J&S liability, each who was negligent and caused is liable for the full amount of the injury to the . Thus, can collect 10K from EITHER 1 OR 2, or a combination of the two of them.

If collects 100% from 1 (who, remember, is only 80% at fault), 1 can sue 2 for “CONTRIBUTION.” Of course, if 2 is insolvent, then 1 is going to be out of luck.

(b) Implicationsi. This favors b/c if there’s an insolvent ,

you can go after the other.

ii. PROBLEM: It may be that 1 was far more responsible than 2. Assuming the 80/20 split here, there is a problem with the J&S system, b/c it can force one to pay more

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than their share if the other is insolvent. If 1 is 80% responsible but bankrupt, 2 would have to pay ALL of it. This problem is the argument in favor of Several Liability (below).

(3) Several Liability(a) Rule explanation

Under Several Liability, liability is ONLY proportionate to fault. Under this system, 1 is laible for 80% of damages, and 2 is liable for 20%.

(b) Implication

i. If 1 is insolvent, doesn’t collect any more. is out of luck re: the tort system.

ii. Here, there is NO possibility that a defendant will be held liable for more than what he is at fault for.

c. Don’t forget: we may also allocate some fault to the (i.e.: they could be 10% at fault).

5. Proving Negligence: Sufficient evidence of breachBurden of proving prima facia case is on . has to prove enough facts such that a jury could find that all the elements of the torts are met. Standard of proof is preponderance of the evidence: “more likely than not.” There needs to be EVIDENCE to do this.

a. Overview(1) Cases Illustrating General problems in Evidence:

(a) Insufficient evidence about ’s conduct to draw an inference

Factual circumstances have to be described in sufficient detail that a jury can take that and conclude by a preponderance of evidence that it’s more likely than not that acted unreasonably.Gift v. PalmerFACTS: Driver hits a kid.The following might show ’s negligence

- boy was hit by car- did it, saw the boy after it.

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- street was clear- No parked cars on the side he was driving

on.

The allegedly negligent act was the failure to observe the road upon which he was driving.

ISSUE: From these facts, can infer that the driver acted unreasonably (i.e.: that a RPP would have acted differently and been able to avoid hitting the kid.

HOLDING: NO. We aren’t sure how fast he was driving, whether anything other than cars could have obstructed his view, whether there was a glare from the sun, etc. THERE JUST ISN’T ENOUGH EVIDENCE TO MAKE AN INFERENCE ABOUT NEGLIGENCE.

**Jury has two roles: to find facts, and to use those facts to determine whether conduct was reasonable. Here, there weren’t enough facts to get to the jury.

(b) Conflicting evidenceCases can only deal with reasonable inferences from what is proven. If there is conflicting testimony, jury can (a) chose which side it believes, and (b), so long as there is sufficient for outcome, appellate court can’t overrule.Upchurchi. Case in favor of negligence:

(i) Some evidence of alcohol/drinking: smell of alcohol on her breath.

(ii) High speed during hitting tree…infer high speed on road then.

(iii) Fact: no skid marks. Inference: Appeared to have gone straight at the tree without trying to

avoid it.(iv) Tree was 160 from point where she

exited the road.

ii. Case against negligence:(i) Testimony at the time gave was

that she swerved to avoid something that came into road in front of her. (This tends to show reasonableness b/c: we’re in an emergency type situation: a reaosnalbe person

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would almost instinctively swerve, and thus they weren’t negligent in acting like a reasonable person.)

(ii) Car was traveling in a weird way, suggesting she wasn’t in control of car.

(c) Evidence that may be beyond the capability of the jury to interpret w/o helpForsyth: 129 feet before impact skids. At point of impact, speed was 55 mph. We might infer that if he hit the tree at the speed limit, he must have been going faster than that before trying to stop.

From the skid marks, we are inferring that he tried to stop? Does skid marks equal trying to slow down?

(d) Insufficient evidence about alternatives to ’s

Part of each factual scenario is an evaluation of whether enough information has been presented about alternatives to the ’s conduct.HYPO: Dark and stormy night, person walking down an alley. She hits a metal utility box that is 70 inches from the ground, 20 inches in height, and 10.5 inches in depth. Her eye is knocked out. sues utility company.

ISSUE: Is this enough evidence to prove utility was negligent (i.e.: acted unreasonably)?

i. Case for ‘NO’; we’d have to determine whether or not it was reoanslbe to put box in that location. We just don’t have enough evidence here. We don’t know structure of alley, location, etc.

ii. Case for ‘YES’: It’s a steel pointed box placed at a point where a good percentage of the population might hit it if shielding their eyes on a dark and stormy night.

iii.HOLDING: On these facts, jury has found negligence.

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(e) **Point in each of the above scenarios is that it’s a close call. Concentrate on the process.

(2) Expert testimonyExpert testimony is NOT admissible when factual circumstances are within the realm of common knowledge and everyday experience such that jury can decide it. It is ONLY admissible when factual circumstances are outside that realm.Shannon: Kid on slide gets thumb ripped off when it sticks in a hole. Jury needs more info to evaluate reasonableness, but not because of an insufficiency of facts; the information needed is necessary to allow jury to make inferences based on already known facts.

(3) General trial procedures

(a) Burden of Proofi. Burden is on to prove by prep of evidence

all five elements. By proving we mean proving enough facts that a jury could find that all five elements existed.

ii. Burden shifts to to prove defenses.

iii. Preponderance is: “such evidence that when weighed with that opposed to it has the more convnicning course and the greater probability is in favor of the party on which the burden rests.”

If Jury gets to point where it says it can’t decide, wins, b/c if it’s 50-50, you haven’t shown preponderance. You need more than 50%.

(b) Places where can say trial should end b/c as a matter of law can’t win:i. After ’s opening statement:

’s opening statement states what facts will try to prove. In describing those facts, the may omit facts that are critical to showing one of five elements. Theoretically, could dismiss here b/c even if they prove everything they’ve said, they won’t win. (RARE)

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ii. After rests. (Here, moves for non-suit for insufficient evidence.)

iii. rests, can move for a directed verdict.

(c) Types of Evidence:i. Direct evidence

Ex: witness says they saw car go through intersection, and light was red when it entered.

ii. Circumstantial evidence: Evidence from which you take one fact and make inferences (skid marks leading to inference that car was losing speed. Fact A leads to an inference of fact B). It’s the jury’s function to evaluate the testimony and decide which it accepts.

(d) Illustrations of inferences (circumstantial evidence)

In each of the following “Slip and Fall” cases, the question is whether there is enough evidence to get to the jury.

i. HYPO: slips on a banana peel. Outcome: Nonsuit. It’s not negligence every time someone slips on a banana peel: it has to be there for long enough to the person correct it. It would be unreasonable to ask someone to pick up every peel immediately (remember burden vs. mitigation balancing)

ii. HYPO: slips on a grungy, dirt peel. Outcome: Jury. From this, we can conclude that peel was on the ground long enough that it was negligent not to have picked it up.

iii. Constructive notice: they don’t actually know, but we pretend they do b/c they should have, and thus that it should have been cleaned up sooner than it was (as they knew about it.) Basically, this is just a reflection of the probability of harm INCREASING, which means that the AMOUNT of care to avoid negligence also

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increases. so any amount of time is enough to be unreasonable since the spill wasn’t prevented. HYPO: Pizza parlor has repeated spills in same area. Someone falls there after slipping on pizza.Outcome: Jury. Repeated spills could create “CONTSRUCTIVE NOTICE.”

iv. Thoma FACTS: alleges that she slipped on what appeared to be a LARGE puddle of water (or syrup/soda) in a restaurant area where there was lots of foot traffic from servers (infer from this that they were able to see it and thus that the spill was there past the amount of time where it would be reasonable). Someone saw the fall, but no one saw a spill for an hour (suggesting again it had been there.

alleges that he checked the area after the fall and there was no puddle.

ISSUE: For a slip and fall, has to show that the cause of the fall had been there for a “while;” we won’t demand (i.e.: it’s not reasonable to expect) that the store assume the burden of having a second employee making sure they don’t spill anything. The burden would be more than the probability/harm avoided.

So…question is whether there are enough facts for the jury to make a reasonable inference that the spill was there past a reasonable time?

HOLDING: This goes to jury. Really, the only problem is the contradiction from the manager, and his position raises credibility issues that are for the jury to decide.

**NOTE: the size of the puddle alone isn’t going to be enough to get to the jury b/c it doesn’t go to how long it was there. However, size + location might be enough.

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v. HYPO: falls in a snap bean in a store. Employee says: I mopped the area two minutes before the fell on the bean.

ISSUE: Enough to get to the jury? (Remember that has to show it was on the floor long enough…)

Jury could conclude the mopping job was bad.

HOLDING: This court says that’s not enough…still no evidence for how long the bean was down there.

**If there was evidence that the bean was dirty, that might do it.

**Consider constructive notice here as demanding a prevention entirely, possibly by putting down mats. To understand whether some prevention is required, we have to evaluate the lost utility too (here, it might make it prohibitively hard to push carts in the store, or it’s possible that mats would cause people to trip.)

vi. Remember, point is whether there is sufficient proof that negligence can be proven: i.e.: actual notice, constructive notice, or a situation where a risk is so high that you should prevent it to begin with.

b. Admissible Evidence of breach (not necessarily PROOF … just evidence)(1) Custom evidence

(a) Evidence that the violated customary safety precautions of the relevant community is usually sufficient to get the to the jury.Duncan: fell through a stair that was not pressure treated. Wants to admit evidence of industry custom to prove breach (that they usually used pressure treated).

(b) Custom evidence assumes that what people generally do is reasonable. If this is true, it would be a breach of the RPP to do something that is not customary. This isn’t the rule though,

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b/c customs aren’t always “reasonable”…it’s possible (i.e.: in the situation of a monopoly, where it was cost-effective not to take a safety precaution) that a custom would be unreasonable.TJ Hooper.: claim was that they didn’t have radio receiving sets on board in accordance to custom. Alleged custom was that there Evidence was that there WASN’T a general custom.

(c) General rule on effect of custom evidence: if there is custom evidence that goes to the action or inaction that is alleged to be negligent, that evidence is relevant and admissible, and is enough evidence to support a finding by the jury of negligence. Doesn’t matter which side is introducing it…either or . BUT…that evidence is not determinative.

(d) **Prof. Epstein suggests there might be times when is aware of custom and implicitly accepted the standard, but this thinking isn’t the law.

(2) Safety ManualsNot following a safety standard doesn’t necessarily mean you acted unreasonably. It’s not negligence per se like a statute, but what we are going to say is that a jury finding of breach based on ignoring safety is justifiable.McComish

(3) Res Ipsa Loquitur (“the thing speaks for itself”)Use this ONLY when it isn’t clear which act was responsible for an incident. If you KNOW what happened, you don’t need res ipsa loquitur. Also, the unknown facts (i.e.: those that aren’t introduced into evidence) must really be UNAVAILABLE to the ; we won’t allow Res Ipsa to get ’s off the hook in their burden of production.

(a) OverviewIt may be reasonable to infer from the fact that an injury occurred that the cause was negligence. This is res ipsa: the thing speaks for itself. We don’t have to be CERTAIN that the cause was negligence: just more likely than not.Byrne v. BoadleFACTS: was walking in road and lost all recollection. Other witnesses say that a barrel with flour fell on him and injured him, and ’s shop was

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there.

ISSUE: Apply Res Ipsa?

HOLDING: Yes. Doctrine of Res Ipsa Loquitur is a form of circumstantial evidence, where we take fact A and infer fact B. Here, fact A is that the barrel fell out the window. Fact B is that the was negligent in letting the barrel fall. Remember, we have no evidence of what did, but by the nature of the accident itself, it is likelyt hat the accident was caused by ’s negligence.

** The evidentiary problem faced by this is bigger than the problem faced by the banana peel cases s b/c here, we don’t know anything about what the did or didn’t do. We can’t really infer what was not done. Thus, it might seem that can’t recover. BUT…we aren’t satisfied with that. We think ought to be able to recover b/c it was the ’s barrel. The fact that it fell says something: res ipsa loquitur; more likely than not there was some negligence that caused this barrel to fall. We don’t have to be CERTAIN there was negligence.

**Note that res ipsa is also solving the causation problem here. Since we don’t know what the negligent act was (which is WHY we’re using Res Ipsa), it’s harder to say but for the negligent act, the wouldn’t have been injured. The fact that we let people recover in res ipsa shows how broad res ipsa is: it shows that we can use it to prove breach and ACTUAL cause and PROXIMATE cause.

(b) Requirements to assert Res Ipsai. Is this is a situation that doesn’t normally

occur in the absence of negligence? (I.e.: Fact situation where the accident is MORE LIKELY THAN NOT caused by negligence.)

HYPO: Auto accident, and pedestrian was hit, can’t remember what happened. Can we use res ipsa? Probably not.

ii. The instrumentality that caused the accident was in the EXCLUSIVE CONTROL of .(I.e.: The cause of the accident must have

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been in the control of the defendant.)

However, the modern trend here is to de-emphasize the “exclusive” prong. “Exclusive” doesn’t mean ABSOLUTELY exclusive: it just has to be more likely than not that the was responsible for the incident than anyone else.GilesFACTS: Elevator operator was ascending to 12th floor. Chain outside elevator got caught, cab began to shake. She says she heard chain fall and hit the ground, and was scared. She then reversed the direction of elevator and stepped out. Company says that Giles was responsible…that she caused her own problem (arguing these things don’t happen w/o operator problem).

ISSUE: Despite failing the rigid exclusivity prong, can Res Ipsa be used to get this to the jury?

HOLDING: Yes. Just b/c might have had something to do with it, a jury can still find negligence. We’ve relaxed the normal proof standards for exclusive control.

**Note that although we probably don’t know about the technical aspects of elevators, we have a COMMON EXPECTATION that elevators will work. If there’s a common expectation like this, it’s really just a jury question. We don’t need expert testimony here since it’s not outside the realm of common knowledge.

iii. DID NOT CONTRIBUTE to the accident**If did contribute, then we can’t say it’s more likely than not that ’s negligence caused the injury. (Thus, really the third prong isn’t necessary.)

Modern trend: Of course, now that we have the advent of comparative fault, it’s

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not necessary that had no role whatsoever, b/c we can now just deduct their damages.

(c) Additional requirement: evidence that is not introduced must be UNAVAILABLE to .

If the information about whether the cause of an accident is ACCESSIBLE to , they have to try to get it. The whole point of res ipsa is for cases where has an INABILITY to find out what happened. It’s not a way of avoiding putting on available evidence.Car Rolling Back case (what’s the name?)FACTS: 3 allegations of negligence: failed to set brake, put car in park, maintain adequate brakes, but didn’t prove these. The car was available for inspection. Each of the Res Ipsa elements was there: cars don’t normally rollbackwards in the absence of negligence, and if we believe the kids, none of them touched it, making it more likely than not that the instrumentality was in the exclusive control of the , and didn’t contribute.

ISSUE: Can we use Res Ipsa?

HOLDING: No. if there is a means to put on evidence, can’t be lazy and avoid burden of proof.

**Be sure not to overgeneralize this ruling…this may be a sort of unique case where the evidence was VERY readily available by a quick professional inspection. Note also that in Byrne, the information was in the ’s control and thus unavailable (the court assumed), which could have been a function of the contemporary lack of discovery procedures. If Byrne were today, there would be discovery to find out why the barrel had fallen.

Don’t be fooled into thinking that Res Ipsa requires, though, that the have superior knowledge. It’s available whenever it’s unclear why an accident occurred, not just in situations where knows but doesn’t.Widmyer v. Southeast SkywaysFACTS: Plane takes off in good weather, hits snow storm. At 50-100 feet, they took a right turn, and they hit the turn. says pilot error, but if that won’t

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work, we’ll try res ipsa. says weather was the cause.

ISSUE: Res ipsa to get to the jury? i. Normally occur in absence of negligence?

No; even with bad weather, flying is safe and it normally takes negligence for an accidence to occur. As safety equipment got better, there was less chance of an accident w/o negligence.

ii. Outside of ’s control?

Here, there’s not really an exclusive control problem. Although it’s the defendant’s plane, there’s a chance manufacturer negligence did it, but isn’t it more likely than not. (Remember, Giles says we don’t need EXCLUSIVE exclusive control. Odds are it wasn’t a manufacturing problem so that won’t do it.)

And, it’s unlikely that a passenger caused it: there’s just a feeling that passengers wouldn’t do this. It’s just an opinion, but odds are that the passengers DON’T WANT to interfere with the plane.

Thus, no exclusive control problem.

iii. did not contribute? Same reasoning as exclusivity…there’s a chance that contributed, but it’s not more likely than not.

HOLDING: Use Res Ipsa to get to the jury.

**Here, had alternate explanations, and so did the . You can STILL rely on res ipsa so long as three requirements are met (UNLESS where there is a sure means of finding out what happened and that wasn’t undertaken, or there is a COMPLETE explanation for what happened – either by conclusive proof by the since they wouldn’t need it).

(d) Procedurei. Sequence at trial for Res Ipsa

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(i) First, judge will ask jury to make a determination on whether the foundational facts exist: was it more likely than not that the incident was caused by ’s negligence? Essentially, this is asking the jury to decide whether the proved enough evidence that if believed would let the jury use the res ipsa instruction.

(ii) Assuming there were enough foundational facts, the judge will give the jdx.’s res ipsa instruction: mandatory or permissive inference (see below for evidentiary effect)

ii. Evidentiary effect of Res Ipsa on jury(i) General (Majority?) rule:

Res ipsa evidence gives rise to an inference that was negligently (in causing the injury); it allos the to get to the jury w/o proving exactly what the negligent act was. Jury is NOT REQUIRED to draw the inference; they just CAN draw that inference. The point is that withstands a motion for nonsuit.

(ii) Minority approach: If there is res ipsa evidence, the jury MUST presume from that evidence that was negligent unless put some evidence on (in which case they can either find negligence or not find negligence.

**Effect of this approach is to tell that they better produce evidence that they weren’t negligent. If you produce none at all, jury will HAVE to find for . If you DO produce some, the presumption goes away, and what’s left of the evidence is just the inference. I.e.: the burden of production is on the here; if they don’t produce some, the jury must presume negligence. This isn’t the

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same as burden of proof.

(e) Illustrations of when Res Ipsa would be appropriate to replace actual evidence of negligence and get to the juryi. HYPO: Pepsi hypo I: person opens drink

and takes a big swig. Startled look, she pulls out a big bug. Can you use res ipsa and avoid having to prove what the negligent act was? Is this enough evidence to get to the jury?

YES: all elements met. would have been in exclusive control at point that bug could have gotten in.

ii. HYPO: Now, assume injury b/c of an exploding bottle. Here, there’s more potential for other folks’ involvement. CA case said to get to the jury here, just show that handling of bottle by OTHER people in the chain was proper. Point is that here there’s the possibility of intermediate handlers causing the problem. To get to the jury, you’d have to rule out the other handlers.

iii. HYPO: A & B collide in an accident. Headlight shatters and hits the who’s walking nearby. sues both drivers. Can use res ipsa to get to the jury? NO NO NO. Just b/c more than half of auto accidents are a result of negligence DOESN’T mean we can use res ipsa. Problem here is that here, the instrumentalities are in control of both defendants. We can’t say that one of those defendants was more likely than not negligent because of the exclusive control problem.

iv. HYPO: Farmer and wife at livestock auction upstairs. Woman is downstairs sitting in a chair in a circle talking with friends. Suddenly, there was a large commontion and noise upstairs, and bits of ceiling fell on , followed by a 600 lb. steer. Res ipsa here? YES. Do 600 lb steer fall through the ceiling in absence of

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negligence? No.

v. HYPO: Fertilizer plant explodes: YES…use it.

vi. HYPO: Human toe in chewing tobacco. Yes…use it.

vii. HYPO: Woman goes in for oral surgery and they use anaethetic gas on her. She wakes up after surgery with a horrible pain in her finger and goes to the doctor who says her finger is broken. She has no idea how it happened. Can she use res ipsa? Is this the kind of accident that is more likely than not the cause of negligence? Does this not normally occur in the absence of negligence? NO. Use res ipsa.

viii. HYPO: Burning TV starts burning, burns house down. sues to get damages for house burning down against manufacturer. Here, is it more likely than not it’s the manufacturer’s negligence caused it? No. Could have found out, and more likely than not was really at fault (maybe by more plugs in socket).

6. Breach of Professional Standards of care: Different than RPPa. Overview

If is charged with professional negligence, they have a duty to use the care and skill ordinarily used in like cases by reputable members of the profession.

Dr.’s are NOT held to the standard of care of a reasonably prudent person; we DO NOT talk about the Reasonable and Prudent Doctor. A professional is held to the standard of care of his profession: the jury’s role is to determine what the standard of care of his profession demanded he do under the circumstances. In essence, this means that we are leaving the definition of reasoanbleness to the PROFESSION; not to the jury. Under the RPP, the jury determines what the RPP would do. The idea is that we have an area of expertise when we’re talking about professionals, and we won’t leave it to the jury to judge reasonablness.

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However, in MOST cases, the jury will not be able to draw on its common knowledge (see above under expert testimony) to figure out what the professional standard of care IS. If this is the case, the jury will have to rely on expert testimony to determine what the standards of the profession demanded of the under the circumstances.

Unlike custom evidence, evidence on professional standards of care is CONCLUSIVE: the jury’s only role is to determine what the standard of care demanded in the situation, and then see if it was breached by ’s conduct in the situation.

b. Potential problems and Sub Issues(1) Sufficiency of expert testimony to prove a breach of the

professional standard of care(a) The testimony of an expert MUST go to the

standards of care of the profession; it may not simply be a personal opinion on what ought to have been done. Walski v. Tiesenga

(b) You don’t necessarily need to be a MEMBER of a profession in order to give expert testimony; the role of expert testimony is just to inform what the standards of the professional community are. If you’re qualified in some way to testify as to that, yet are not a member of a profession, you can do it. (i.e.: doctor might be able to testify about nurses’ professional standards.)

(c) The jury must be able to evaluate not only the care demanded by the profession under the circumstances, but also whether the deviated from that standard and whether the deviation thus caused injury (see causation more detailed later). In some cases, it may be so clear from the standard of care that deviated that no testimony on this fact is needed (i.e.: when the standard is to do a splint, and none was done), but in many cases expert testimony will be needed for deviation as well. Treatises, though admissible in most cases (no longer considered “hearsay”), are by definition general, and are thus RARELY going to be sufficiently revealing of the standard of the profession UNDER THE CIRCUMSTANCES to be illuminating enough to get to the jury.Smith v. Knowles

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FACTS: Smith claims Knowles was negligent in failing to make a timely diagnosis of wife’s pre-eclampsia and that she died because of his negligence. Allegation was that the Dr. didn’t give medication soon enough. Smith introduced evidence of a treatise that said: “a major aim of treating pre-clampsia is to prevent convulsions and the IMMEDIATE institution of appropriate treatment with the earliest signs.” Among other things, Knowles ordered medication 1:30hr after making the diagnosis.

ISSUE: Is the treatise sufficient to inform the jury as to the standard of care of the community and to describe whether breached?

HOLDING: No. Treatise says to give medication immediately; we don’t know what “immediately” means though, so that’s not enough. It doesn’t say what the doctor should have done at 11:45 given this set of circumstances.

Also, there was no element of causation: that the negligence if it existed in fact caused the death. We don’t know that there was anything he could have done even if he HAD complied to prevent this outcome. The jury ABSOLUTELY CANNOT make this determination…they REALLY need expert testimony on this…the jury doesn’t know anything about this drug on pre-eclampsia, the chances of recovery.

HYPO: What if an expert testified that it would have been 50-50 that she would have lived if she had been given medication sooner? Then we can’t say it would have been more likely than not that she would have died anyway, and we don’t have causation. It would have to be 51%.

HYPO: Would a treatise stating “as a general ruel, the best technique in thyroidectomies is to locate and isolate the nerves” solve the problem in the old nerve case? NO WAY. This isn’t specific enough: there is discussion of a general rule, but there is no consideration fo the circumstances.

(d) Res Ipsa (discussed in more detail below): Expert testimony may be needed to tell the jury an accident is more likely than not the result of

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negligence. (Really it could come up with other prongs too, but that’s not the main problem.

And, in a very sublte difference, expert testimony may be needed to show the jury that it doesn’t NEED expert testimony to determine whether an accident is more likely than not the result of negligence (e.g., to explain that an injury occurred in a different REGION where the jury wouldn’t have known otherwise)

(2) Conflicting professional standards (a) If there is conflicting testimony on what the

professional standard of care is, the role of the jury is to decide which expert is correct.

(b) If purportedly conflicting expert testimony reveals that there are different schools of thought on a subject, so long as one school of thought contains a substantial amount of members (i.e.: enough to make it a valid school of thought), then actions that are consistent with one of those schools of thought meet the professional standard of care.

(3) Remember, we aren’t evaluating whether the member of the profession BELIEVED he was acting correctly; we don’t care what they think, we just evaluate CONDUCT.

(4) Locality rule: There may be some question as to what community standard applies in cases when the professional is from a small area. Some jdx. had a locality rule where they were judged only by the standards of their community’s profession, though this evolved into a “modified” locality rule where they were jduged by the standards of SIMILAR community’s profession. Both have the effect of potentially allowing a standard of care below the national standard, and are premised on differences between areas in access to knowledge and information. As such, the question will likely evolve out as access to information and the ability to refer to another doctor (when one doctor has insufficient equipment) increase.Vergara v. DoanFACTS: Neglignece on the part of Doan during baby’s delivery caused him severe and permanent injuries.

ISSUE: Should the instruction to the jury be that the doctor

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must comply with standards of the doctors in the locality or similar localities, or is a national standard more appropriate?

HOLDING: The locality rules are problematic in that there is a difficulty in finding doctors to testify against each other in a small community as to what the standard of care is, and it might not reflect the reality of modern practice to have different standards based on geography. Thus,

Physician must exercise that degree of care, skill, and proficiency exercised by reasonably careful, skillful, and prudent practitioners in the SAME CLASS to which he belongs, acting under the same or similar circumstances. Rather than focusing on different standards for different communities, this standard uses locality as one of the factors in determining whether the doctor acted reasonably. Other relevant considerations would include advances in the profession, availability of facilities, and whether the doctor is a specialist or general practicioner.

**This ruling is problematic: does it mean locality is just another circumstance? Can an expert come from a big city here? This is a pretty vague standard. We don’t really know what role locale has. There’s a chance that a witness could be rejected because of where he’s from if it’s too big of a city. We have a question here about the qualifications of an expert to testify: do they need to know about what would be done in this locality?

HYPO: Expert witness testifies: “The standard of care, as defined from a medical standpoint, and from my understanding form a legal standpoint also, is the same throughout the country.” Has he met the locality rule or some version of it? This isn’t enough by itself: the locality idea is that you have to say what doctors in the specific locality do. Here, he’s just saying it’s the same, and this court says that’s not enough. On the other hand, we can say that he knows what the standard of care is in the locality and that it’s the same as the national standard.

HOWEVER, for specialists, the standard is a NATIONWIDE standard: no locality rule. It’s the community of specialists nationwide.

(5) Many states have Good Sumaritan statutes that absolve doctors who respond to an emergency; for these

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statutes, the key is to read the WHOLE thing to make sure it applies to see WHO it covers and WHAT CONDUCT is immune from liability.

The object of a good sumaritan statute is to encourage them to give emergency care w/o fear that if something goes wrong they will be subject to a lawsuit.

Ex: Hirpa: Good sumaritan statute: no person LICENSED under this chapter … who in GOOD FAITH renders EMERGENCY CARE AT THE SCENE OF THE EMERGENCY shall be liable for ANY CIVIL damages as a result of any ACTS OR OMISSIONS by such person in rendering the emergency care.

c. Res Ipsa in Medical CasesProblem for medical cases centers on the first prong of res ipsa: it’s hard to know that this was an accident that does not normally occur in the absence of negligence w/o expert testimony. This is not like the elevator case where common knowledge is enough.

(1) In a few GLARINGLY OBVIOUS cases the jury doesn’t have to rely on an expert to know that this is an accident that does not normally occur in the absence of negligence:

(a) Operation on the wrong part of the body. (An expert’s testimony to TELL US that it’s an injury in an unrelated part of the body isn’t quite the same as relying on expert testimony…it’s just giving information that will let the jury make a common sense determination that doesn’t require expert testimonySalathiel:FACTS: Expert testifies that the injury was “remote” to the surgery, and nothing further.

ISSUE: Enough to satisfy the “more likely than not caused by negligence” prong of res ipsa?

HOLDING: Yes. Though expert didn’t testify that it was more likely than not, we can use the common knowledge that a wound on an unrelated body part during a procedure is more likely than not the cause of negligence.)

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(b) - Instrumentalities left in the body.

(2) However, in most res ipsa cases, because of the technical nature of the subject matter (i.e.: it’s outside a jury’s common knowledge) proof will be insufficient to get to the jury without an expert who says that on the whole this is the kind of outcome that does not normally occur w/o medical negligence.Kelly v. HartfordFACTS: claims that it is within the common knowledge of a layman that rectal hematoma (blood coagulation) will not normally occur from an enema except in circumstances where the professional standard was not followed.

HOLDING: Whether the application of an enema will cause injury in the absence fo negligence isn not a matter of common knowledge. Thus, we would need to have expert testimony as to whether a hematoma during an enema was more likely than not b/c of negligence.

**This case discussed the patient’s previous history with anal problems to question whether it was more likely than not the the instrumentalities were in the ’s control, treating the health history as an instrumentality. Really, health history is probably more appropriate under the first prong where we are asking whether the outcome IN THESE CIRCUMSTANCES is more likely than not the result of negligence. **Note that this illustrates a general point about the first prong: The more specifically we describe the circumstances, we may change the odds: as you describe the factual circumstances, whether you conclude that the accident would occur w/o negligence changes. THIS IS ABOUT FRAMING. may try to frame it one way, will frame it in a way that makes it more clear it was negligence.

(3) Expansion of settled common law notions: In VERY LIMITED CASES, where the has submitted himself to the care of a group of medical personnel and is unable to testify as to the events (e.g.: becomes unconscious), and experiences an injury that is more likely than not the result of negligence, we may relax the requirement that the prove that a SINGLE was more likely than not in control of the instrumentalities and caused the injury (therefore getting others on respondeat superior), and place the burden on the GROUP of to explain who was at fault, threatening

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liability to each if there is no disclosure.Ybarra v. SpanguardFACTS: At start of surgery while on operating table, says he feels hard objects at his shoulder, protests. Prior to the operation (appendectomy), he never had shoulder problems, but it’s there afterwards. There’s a group of 6 medical staff named as defendants who were each present at some point during the procedure, as well as the hospital owner.

HOLDING: Despite not being able to meet the traditional res ipsa requirements for any ONE , (b/c can’t show that any one was more likely than not in control of the instrumentalities), “Every in whose custody the was placed for any period was boud to exercise ordinary care to see that no unnecessary harm came to him.” Thus, all of them had the responsibility to care for this guy, and if one of them didn’t, the burden is on them to explain.

**Drawback: when makes a motion for non-suit, the motion is denied b/c res ipsa has provided evidence to survive the non-suit. At a minimum in an inference jury, the jury is allowed to infer negligence. If the burden to explain is on the s, any one of them could deny responsibility. Then, as a result of using res ipsa, the trial court found against ALL of them. Since none of them explained it, the jury drew the inference that they were each responsible. This may be pretty unfair to the people who REALLY didn’t have anything to do with it. This could sort itself out in an action for contribution (assuming we’re under J&S liability???), but it’s not clear that there would be any different result there. All of them COULD have caused the injury, but there might be a non-defendant who is REALLY responsible. There is a slight possibility that all the people found liable weren’t the ones who did it.

d. Informed Consent: Negligence through non-disclosure

(1) Overview: similar to battery, but we use negligence theory(a) An surgery were there was not informed consent

technically may meet the requirements for battery.Schlendorff: “Every human being of adult years and sound mind has a right to determine what shall be done with his own body and a surgeon who performs an operation w/o his patient’s constent commits a battery.” It meets each element of battery.

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HYPO: Dr. decides they needs an operation, injects them and then operates.

(b) If a doctor’s FRAUDULENT information induces a patient’s consent, then we likely WILL have a battery.

Ex: Dr. says a surgery is no big deal, knowing that he’s going to have to amputate an ear.

(c) However, if a doctor fails to mention key risks and you then consent, where you would NOT have consented having known about the risks, then we proceed under negligence, for two reasons:i. it’s not really an intentional tort: it’s a

mistakeii. malpractice insurance doesn’t cover it, but

does cover negligence

(2) Competing approaches to determining what needs to be disclosed:

(a) “Patient standard”Harnish v. Children’s Hospital Physician owes to his patient the duty to DISCLOSE in a REASONABLE manner all significant medical information that the physician POSSESSES or REASONABLY SHOULD POSSESS that is MATERIAL to an intelligent decision by the patient whether to undergo a proposed procedure.

However, there is a PRIVILEGE of non-disclosure when sound medical judgment indicates that disclosure would complicate the patient’s medical condition or render him unfit for treatment.

Causation: Non-disclosure is only negligent when the non-disclosed risk in fact materializes, and where the proves that if proper disclosure were made, neither HE (subjective) nor a REASONABLE person (objective) would have undergone the procedure. REASONABLY SHOULD POSSESS = That information possessed by an average

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physician/specialist [NOT the same as professional standard…this really is about the AVERAGE physician]. This will require expert testimony in most cases.

MATERIAL = Things the doctor should reasonably recognize are material to patient’s decision: i.e.: significant to a reasonable person in what the doctor knows or should know to be the position of the patient. This does not require expert testimony.

Examples of material info:i. the nature of the patient’s condition, ii. the nature and probability of risks

involvediii. the benefits to be reasonably expectediv. any inability of the physician to predict

resultsv. any irreversibility of the procedurevi. the likely result of no treatmentvii. available alternatives’ risks and benefits

EXCEPTIONS TO INFORMED CONSENT: (3 Situations it isn’t required)

(1) PRIVILEGE: The “Theraputic” privilege applies only when the information disclosure ITSELF will have an adverse health effect, not when the disclosure might lead to a decision to decline treatment that the doctor feels is inappropriate; i.e.: we won’t let doctor substitute his judgment on what the patient should do for the patient’s by withholding information; the whole point of the rule is to give the patient the right to decide.

DISCLOSE = The rule doesn’t require the disclosure of all risks of a proposed therapy or (2) of information the physician reasonably believes the patient already has, such as the risk inherent in any operation (e.g., infection) or in a repeated surgery (the 6th time they get a tummy-tuck they don’t need to be told about the risks of tummy tucks assuming they haven’t changed), or (3) during an emergency surgery (because then we presume they would consent).

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Critique of this approach: i. The “reasonable person standard” for

causation seems inconsistent with protecting autonomy. Shouldn’t we protect the autonomy of the idiosyncratic?

ii. We’re asking the doctors to tailor the info to that patient. There is some uncertainty here: it imposes a high burden on doctors to figure it out. If they don’t ascertain the “position” of the patient, a patient may sue for lack of informed consent. We may be placing a demand on them that’s hard to meet.

(b) Woolley v. HendersonProfessional care standard alone: the physician must disclose only what the profession customarily discloses in these situations, proof of which will require expert testimony.

(2) Miscellaneous informed consent stuff(a) HYPO: claims no info about a MORE

DANGEROUS operation that required a full anaesthetic. Of course this is a hard sell maybe, but the bodily autonomy point may be strong enough. (Think general anesthetic where a patient wants it, but it’s not as safe as local.) Court says they have to tell of more dangerous. **Note that it’s a tougher sell with the jury that patient ACTUALLY and REAONSABLY would not have undergone the operation had they known about a MORE DANGEROUS alternative. Actuality might be doable, but in most cases the reasonable person might think twice about this. Of course, the RPP could have different priorities than just risk of death: avoiding pain during procedure, possibly even scars after might be something RPP would do.

(b) Informed “refusal”: If a patient indicates they are going to decline RISK-FREE test or treatment, the doctor has an additional duty of advising of all material risks of which a reasonable person would want to be informed.Truman v. ThomasFACTS: Patient died of cervical cancer that would

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have been discovered through a pap smear. Doctor repeatedly advised her that she should have a pap smear, but never warned her of the purpose or the dangers of not having one.

PP: Jury found for doctor.

HOLDING: Reverses.**This departs from the battery context of a touching that was “not consented to” of negligence to a negligence purely in the lack of disclosure of information.

HYPO: is coughing, doesn’t want an Xray that Dr. recommends saying he suspects bronchitis. Turns out it is lung cancer. Patient says that he should tell of consequences of not taking x-ray. (Of course, if x-ray wouldn’t have shown it, then no causation).Same result as Truman.

(c) Perceived limit of informed consent: Failure to provide information NOT ABOUT RISKS OF THE PROCEDURE yet still relevant is to be judged by the standard of practice in the medical community.Arato v. AvedonFACTS: Arato was diagnosed with cancer overwhelmingly likely to cause death quickly. Doctors performed surgery. Although Arato said he “WANTED TO KNOW THE TRUTH” the doctor did not tell him that death in a short time was statistically almost certain. Doctor recommended other post-operative experimental procedures that they hoped would help. (Arato’s heir) claims that Arato was given a false hope and did not arrange economic affairs before death.

PP: Jury found for , CA reversed. This reverses CA (affirms jury).

HOLDING: Not error to leave to jury the question whether all material info about risks had been given.

And, no duty to disclose statistical life expectancy information because it was not information about risks of the procedures. As to relevant information

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that is not about risks, the standard of disclosure is the “standard of practice in the medical community. Since no testimony was given on this, there could be no finding for . And, a request for “the truth” doesn’t chance the duty of disclosure.

C. Damages and Causation: prima facia elements1. Damages

a. Damages are an element of the prima facia case for negligence; you must prove by a preponderance of the evidence that the caused DAMAGES.Copeland v. ComptonFACTS: claimed injuries resulting from collision with . However, evidence of similar ailments which predated the accident contradicted ’s testimony. I.e.: he had previous accident in 1972 that resulted in chronic pain, had always been obese, and had suffered three previous accidents where he was in pain.

PP: appeals from loss at jury stage.

ISSUE: Is “fault” the same as liability? Is it possible to be at fault w/o liability?

HOLDING: Yes: if your negligence did not cause a legally cognizable injury. Here, he was just as bad as he already had been, so there were no damages.

**This can be looked at either causation or damages being lacking. On the one hand, if he was already bad off, anything caused by the ’s negligence didn’t make him any worse off, so there were no damages.

** Note that the term “negligence” can mean one of three things: All five elements of the tort, duty + breach, just breach. The ’s admitting to negligence here was very risky, because he intended it to mean only duty + breach, but could easily have been interpreted as admitting liability. DON’T DO THIS.

b. Types of actual damages:(1) Medical damages(2) Lost wages(3) Pain and suffering(4) Other specific damages as proven at trial

2. CausationCausation is both a factual and a policy question: we demand that the ’s

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conduct was the ACTUAL CAUSE (through the but-for test), but also that there was a legally significant relationship (PROXIMATE CAUSE).

a. ACTUAL CAUSEThe KEY to actual cause is the breach issue: we HAVE to know what is the specific negligent act. We have to look at benefits and alternatives and costs of alternatives: we can’t do that unless we know precisely what the allegedly negligent act was. We also need to know it for actual cause.

(1) But-for/counterfactual test

The jury must conclude that but-for the ’s negligence, the would not have been injured. This is essentially done by looking to see whether would still have been injured had acted as an RPP. If so, then there is no causation.Salinetro v. NystromFACTS: Auto accident, has x-rays of abdomen not knowing she’s pregnant. Doctor hadn’t asked whether she was pregnant, but if he had, she testifies that she would have said ‘no.’ He didn’t ask if she was late with period, but if he had it wouldn’t necessarily have indicated she was pregnant w/o further tests. Fetus was aborted, may have been killed b/c of x-rays.

ISSUE: Can the get a directed verdict for failure to state a prima facia case b/c of lack of causation? (The alleged specific act of negligence is not asking whether she was pregnant before the x-ray.)

HOLDING: Yes. Even if the Dr.’s conduct was below the medical standard of care in failing to ask whether was pregnant on the date of her last menstrual period (i.e.: was a breach), the omission was NOT the cause of injury. She says still would have taken the x-ray.

**Note that there is a parallel between breach and causation in that both use counterfactuals: we are speculating on what WOULD HAVE occurred in both cases. Under causation, we have to ask what would have happened if the reasonable and prudent person had acted. Even if the RPP did something different than you get the same injury to the , there is no liability b/c no actual cause; the would have been injured in exactly the same way even if had acted reasonably.

**Of course, with counterfactuals we will never be SURE in most cases what would have happened. In Salinetro, it’s

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certainly possible that being asked if she was pregnant would have caused to at least think about it and then lead the Dr. to ask further questions. We just don’t know. We’re really constructing fiction.

HYPO: gets into her car and backs out w/o looking in mirror. Her husband was squatting behind the car at the rear bumper. Not knowing he was there, she backed into him. Causation? Alleged negligent act is not looking in the mirror. Can we say that but for the failure to look in the mirror, the would not have been injured? No. Even if she had looked in the mirror, she would have seen NOTHING b/c he was crouched down, so the result is the same. No actual cause.

(2) Multiple causes: Alternatives to the But For test.In general, we require that prove by a preponderance of the evidence that EACH be an actual cause of injuries (exceptions are vicarious liability -- respondeat superior -- where employer is liable for employee’s tort as a matter of policy despite not meeting each element, and “acting in concert” where multiple defendents are collectively negligent in joint endeavor like a conspiracy theory)

(a) Sometimes the But for test works with multiple defendants:i. In cases where two defendants have

COMBINED to cause a single INDIVISIBLE (where we can’t apportion it between defendants) injury where one acting alone wouldn’t have been enough to cause the injury, the but-for test works: the negligent act of each is the ACTUAL cause of the ENTIRE injury:

(i) HYPO: Two ’s get in a car crash where both are negligent, piece of a car flies off and injures a pedestrian. How do we apply but-for test? It has to apply to each if they’re going to be liable. But for EITHER of these s negligent driving, the injury wouldn’t have occurred (if only ONE had driven negligently, the injury wouldn’t have occurred). Here, both of the negligent acts have caused a single INDIVISIBLE (we

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can’t apportion it) injury. Each is liable for the entire injury (at c/l, J&S liability).

(ii) HYPO: 1 hits a deer and leaves it negligently in the road. 2 runs over the deer and injures the negligently. But for test works for both of them here too. This is just the same as above.

ii. In cases where defendants cause DIVISIBLE injuries (injuries we can apportion; i.e.: but for 1, wouldn’t have broken his arm, but for 2, wouldn’t have broken his leg), each is simply liable for the damage they caused. Remember, for divisible injuries, we have to prove actual causation by a preponderance of the evidence for the given portion.

**Whether an injury is divisible or not depends on the INJURY: we can apportion injuries to different body parts, but not a death, e.g.

HYPO: Employee of R shoves negligently who falls to the floor and can’t move arms and legs. Police come and pick him up and throw him in paddy wagon. He has a severe injury to his head, unclear from whom. Is this an indivisible injury (both are J&S liable) or divisible (where one is liable for the portion.)

Court says indivisible, but we think it’s divisible. There’s enough evidence that we could get experts to say whether it was more likely that the head injury was caused at first. Remember, we’re just looking for some credible evidence to divide, b/c we don’t want to hold anyone liable for what they don’t cause.

(b) In other cases with multiple causes, the but-for test leads to a bizarre result, so we come up with alternatives.

i. Where two s negligently cause a divisible injury that is, as a practical matter, impossible to apportion because of imperfect knowledge of the incident, we

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will treat the injury as indivisible and thus hold them liable for having caused the ENTIRE injury. Landers v. East Texas Salt Water Co.FACTS: had a lake stocked w/fish. Pipelines of two companies leaked saltwater into the lake and ruined it. There are two allegedly negligent defendants, both of whom breached, but we don’t know who did it first.

PROBLEM: There is a problem with actual cause here. The but-for test fails for BOTH defendants b/c the injury is divisible: if we had perfect knowledge, we could apportion the injury (1 caused this much because he spilled in this area at this time, and 2 caused this much). But, we don’t have sufficient knowledge: we can’t say that but for either 1 or 2’s negligent act in allowing the leaking the damage to any given portion would not have occurred b/c we just don’t know that it wouldn’t have occurred w/o the other. Thus, can’t prove for either that the negligent leaking was an actual cause by a preponderance of the evidence, and is out of luck.

SOLUTION: treat the two defendants as having caused an indivisible injury even though in reality they didn’t since it’s almost impossible to divide it. Thus, each is liable for the entire amount. The net effect of this is that the two defendants will be found J&S liable (at c/l.) That means can collect from either, so the that paid could file an action for contribution against the other, where he had the burden of proof to show some divisibility.

**The alternative that we’re avoiding is being unable to prove causation under the but-for test for either defendant and wouldn’t recover.

**Remember, if there is a set of facts by which we could divide even if it’s rough, you have to divide it.

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HYPO: car crash that may have killed (we aren’t sure if it DID…it may have just seriously injured ), followed two-seconds later by another hit where afterwards is dead. If we were to treat that as divisible, really has no case since he can’t show which caused which part: we don’t know who killed him. So, we treat it as indivisible even though in theory it’s indivisible, and in doing so, we say that each is liable for the full injury.

ii. Where an indivisible injury occurs because of two s’ breaches, but would have occurred even if only one had breached (thus failing the but-for test for both), we will hold any liable whose breach was a “substantial factor” in causing the injury. CA uses this standard instead of but-for, so on exams we will use but-for and substantial factor in the causation section.AndersonFACTS: Prop. burns down when two negligently set fires converge and burn it.

PROBLEM: Although this is an indivisible injury, the but-for test fails for both parties who were in breach: but-for one setting the fire, the property still would have burned because the other was there. Thus, is out of luck if all we have is the but-for test.

SOLUTION: the “substantial factor test.” Instead of asking but-for the act of setting the fire would have been injured, we ask if the ’s negligence was a substantial factor in causing the ’s injury.

**Determining whether a breach is a substantial factor in an injury is really a jury question that’s intuitive. Something that might not have been a substantial factor would be a single match combining with a HUGE conflagration.

** The substantial factor test works in every situation as the but for test, and it’s also good in the “twin fires” situation where the

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but for test fails to find either.

** Majority rule is to use substantial factor only where you need to. In CA, though, we use the substantial factor test ONLY … there isn’t a but for test.

HYPO: Say the fires came at the house from separate directions. Now, theoretically it’s divisible, but it may be impossible for the to prove, so we treat it like Landers.

iii. Dillon Rule: The state of the AT THE TIME ’s negligent act injures him is the baseline for calculating damages. If but for ’s breach, would still have been injured but not to the same degree, is liable only for the additional caused by his breach.Dillon v. Twin State G&EFACTS: Losing his balance (the court assumes about to fall to his death or serious injury) from a bridge, kid grabs electric wire and is electrocuted.

ISSUE: What liability to the Electric Co. assuming breach?

HOLDING: There’s only liability for the injury that the negligence ACTUALLY caused:

(1) If the fall would have killed him, then there’s only liability for 5 seconds shorter life-span and whatever additional pain (practically nothing, possibly even so little that no damages, thus no liability.

(2) If the fall would have just seriously injured him and decreased his earning power, the liability is for the DECREASED earnings (i.e.: the earnings he would have made if he was maimed rather than killed), not the earnings he could have made if completely healthy.

**Problem with all of this in this case is that we aren’t really sure that there should be a

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“diminished baseline”. The court has ASSUMED that he would have fallen regardless of the electrocution, but that may be unclear. It’s unclear what the specific breach was. We REALLY need to know what the act of breach was in EVERY actual cause question:

(1) If the breach was failing to insulate the wire, then we ask: but for the failure to insulate the wire, would have fallen (i.e.: been injured AT ALL)? Maybe not: it’s possible they could show by a preponderance that he could have held on and regained his balance if there wasn’t an electrocution.

(2) If the breach was putting the uninsulated wire IN THAT PLACE, we ask “but for the wire being there at all, would have fallen (i.e.: been injured AT ALL)?” It’s possible they can show by preponderance that he would have regained his balance just by waiving his arms had he not tried to grab the wire.

**Point is just that it may not be clear in THIS CASE whether the baseline should be something other than a full-quality life, but assuming he would have fallen (as the court did) the rule is good.

Note that the Dillon rule can be a tricky sell to the jury since it involves arguing that a life wasn’t worth that much. It applies in situations where the has a lower than normal life expectancy: is only liable for the injury they CAUSE.Kilmer: 20 y/o hemophiliac dies due to ’s negligence. Given his disease, he might not have lived for a long time…he wouldn’t have lived a full and complete life. has a right to show that…he’s already killed him, and now he’s trying to say it’s not worth all that much. Here, jury returned 300K. They ABSOLUTELY took his hemophilia into account…if he had a full life-span, the verdict is WAY higher.

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iv. Alternative liability: where it’s CLEAR that one and ONLY one of the defendants’ negligent act was the actual cause but it’s 50-50 as to which (i.e.: can’t prove preponderance for either one), we may shift the burden of proof for the actual cause element to the s, thus allowing to recover.Summers v. TiceFACTS: Kids hunting, two shot simultaneously, shot from one hits the eye of the third but they don’t know whose shot hit him. One of them clearly did, and not both of them. They have both breached the duty of care.

PROBLEM: Since it’s 50-50, can’t prove by preponderance that but-for one, the injury wouldn’t have occurred (if it’s 51-49, then no problem). Thus, is going to be out of luck.

SOLUTION: Court shifts burden of proof on actual cause. This asks each individual to prove by a preponderance of the evidence that he didn’t cause the accident. Since they have the burden of proof, and all they can show is that it’s equally likely that the other guy shot, the doesn’t meet the burden of proof, and they’re BOTH held liable.

**Note that in this case, but for, substantial factor, and acting in concert (this one is arguable) don’t work, but shifting the burden does.

**This case is less of a departure than Ybarra because there we didn’t know that all s were breaching OR causing. Here, we know they’re negligent…all we’re altering is causation rules.

v. Market share theory: in limited cases where there are many people injured by a totally fungible product (a product the same no matter who sells it), where it is impossible to know WHICH

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manufacturer caused ’s injury, but we do know what PRODUCT caused the injury, we may hold manufacturers liable to EACH injured in proportion to their share of the national market rather than letting them off since no will be able to show but-for causation. For s who no longer exist, will not be compensated for their share.HymowiczFACTS: doesn’t know which manufacturer bough the generic DES drug from – the injury took 20 years to manifest itself, and she just doesn’t remember who filled the prescriptions. Since she can’t prove which she bought it from, she can’t say but for this ’s negligence she would not have been injured. There are so many defendants that we can’t prove more likely than not for any one.

HOLDING: Hold each liable in proportion to their market share. Though this will have the effect of errors in most cases, since we will hold s liable when in fact they didn’t cause, we will hold them liable for proportional damages, and thus in the long run they will pay the same amount they would pay if we had perfect knowledge of exactly which injuries they caused.

**If no longer exists, we most likely won’t require remaining ’s to be liable for MORE than their market share in order to compensate fully: we will put the loss on here.

**Note that this is much different than J&S liability, because with J&S, by definition there is the possibility that one will be stuck with the entire tab, and that just wouldn’t be appropriate here when clearly they didn’t cause everyone’s injury.

vi. “Lost chance damages”: where the breach leads to the loss of a chance of survival that was less than 50% and thus that we can’t say that more likely than not the negligence caused DEATH since

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most people in the situation would have died regardless of the negligence, we will hold liable for the “LOST CHANCE OF SURVIVAL.” This has the practical effect of relaxing the “preponderance of the evidence” requirement for causation and making up for it in damages. Damages are computed by first asking what damages would be if we COULD have said by preponderance of the evidence there was actual causation of death, and then multiplying by the chance of survival.WollenFACTS: ’s situation just before the failure to diagnose his disease (which was breach – malpractice) was a 33% chance of survival if the diagnosis had been correct. 1/3 chance of survival means that 2/3 of people in the situation are going to die anyway regardless of the malpractice. And, since we have no way of identifying whether falls into the 1/3 category or the 2/3 category, can’t prove by a preponderance of the evidence that but for the failure to diagnose, would not have died, since he likely would have died anyway.

HOLDING: Despite the fact that we can’t say the misdiagnosis caused death, we are aware that the chance of survival was still very meaningful to the , and that the loss of that chance is a meaningful injury that was caused by the misdiagnosis. Thus, we will hold liable for the lost chance.

This has the effect of relaxing the requirement of proof of causation by preponderance of the evidence.

**Note that this approach builds in errors. For the 2/3 of s who would have died anyway, they will recover where they should not have if we had perfect information, and the 1/3 who would have survived but for the misdiagnosis will recover less than they should. This system just ensures that everyone will recover something.

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No lost chance rule in CA…reason courts are uncomfortable is b/c it’s a big expansion of liability and a big departure from traditional tort law that only allows recovery for physical injury.

Posner’s idea: Loves the idea of “lost chance” (it works well with L&E theory), but says that if we’re going to be intellectually honest we should do it even in cases where the chance for survival was MORE than 50% and that we thus COULD prove by preponderance of the evidence that a breach had caused death. The idea here is not to just treat 51% as a given: if someone caused a 51% person to die, to make them 100% liable is wrong. HOWEVER, no jdx. has adopted this theory.

Alexander: was injured through a decreased risk of long-term survival, but had not yet died at the time of suit. It’s a real injury, but it becomes virtually impossible to calculate damages. CHECK ON THIS.

b. Proximate cause: element of Prima Facia Case for Negligence(1) Overview

(a) Proximate cause is a policy determination. At some point the distance between the negligence and its result is so attenuated that we don’t WANT to hold liable. There HAS to be some way of cutting off liability other than just breach, otherwise we have an unending stream of causation.

We leave proximate cause to the jury, but really it’s a question of law. We have to remember that we’ve already determined breach. We’re just trying to decide when the liability is getting too great…it’s a policy determination.

HYPO: Dr. is supposed to take care of vasectomy, botches it. Guy has a kid, who six years later burns down the house. There was malpractice, the negligence was the but-for cause of the fire. Dr. was the but-for cause of the damage from the fire,

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but c’mon.

(b) Different courts mean different things when they refer to “proximate cause.”Some courts use it to include actual cause and the legal limits; other courts say proximate cause is a separate determination. Analytically, there is little similarity; better to consider them separately.

(c) Situations where proximate cause is raised on an exami. bizarre situations, ii. unforeseeable or unlikely harm … low

probability events.iii. D1-D2 scenario: D1 does something

negligently, and then D2 does something negligently (or intentionally), then is injured.

(d) Proximate cause questions usually come up when has failed to guard against a risk that should be foreseen, but harm occurs in an unanticipated way.

Remember, there is NOT going to be negligence where harm is unforseeable: if you can’t forsee a harm, you can’t guard against it, and by definition you can’t be unreasonable.

If fails to guard against a risk that should be foreseen, but harm occurs in unanticipated way? You may or may not be negligent: could be a foreseeable risk reasonable to impose (Carroll Towing balancing test: weigh risk—probability of harm—and AMOUNT of harm if it were to result against the burden in deterring the risk), but the harm occurring in an unanticipated manner is a proximate cause question.

(e) **Note the difference here to transferred intent: we don’t hold liable for all consequences b/c acting negligently is simply less wrongful.

(f) RULE STATEMENT WHEN INTUITIVELY PROXIMATE CAUSE IS NO PROBLEM: The resulting harm wasn’t too attenuated, or too outside of the scope of the unreasonable risk that made the act a breach.

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(2) Three different standards for determining proximate cause for CLASS OF RISK and CLASS OF PERSONS**remember, if the negligent act had no foreseeable risk to ANYONE, then we don’t get to proximate cause b/c there’s no breach.

(a) VAST MODERN MAJORITY APPROACH: Class of risk/class of persons rule:i. Rule statement

Proximate cause requires BOTH that the harm which occurred was of the same general class or nature as the FORESEEABLE risk created by the defendant’s breach (Medcalf) AND that the risk that made you negligent was a risk to the same CLASS OF PERSONS that ultimately was injured.

ii. Approach:(i) First, determine what the negligent

act (breach) was, and (ii) Second make sure there’s actual

cause(iii) Third, ask what risks made the act a

breach, and who was subject to those risks

(iv) Fourth, ask if the risks that resulted were to (1) The same class of people that made the act a breach(2) The same class of risk that made the act a breach

iii. Illustrations(i) Medcalf

FACTS: Alleged negligence was failure to properly maintain an intercom system. The failure was negligent (breach) b/c the reasonable and prudent person would have fixed it: the probabilities of harm (risks) in not fixing it are large (a bad guy could come in the building) and the AMOUNT of harm that would result is high; the cost of fixing it is low.

The breach was the actual cause of the injury: but for the ’s failure to fix the intercom, would not have

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been injured (or, was the ’s failure a substantial factor in the injury) by the guy clobbering her as she tried to get in. (Really, guy might have clobbered her anyway though…just assume actual cause.)

HOLDING: Here, there is a breach, but is not liable: the injury that happened wasn’t the risk that made them negligent to begin with. It wasn’t the risk of bad people getting in: the risk that materialized was bad people hitting them on the outside of the building.

(ii) Wagon Mound caseFACTS: negligent act on boat that pollutes bay with oil. Resulting harm was a DOCK burning when a sodderer on it dropped something into the water/oil, and started fire that no one thought was foreseeable.ANALYZE:

(1) The pollution is negligent b/c the risks of killing wildlife, messing up boats with oil far outweigh any benefit in polluting (there is NO utility in polluting).

(2) The risks of fire here was not within the scope of foreseeable risk: the risks that made the spill negligent were not in the same general scope of the risk that came to fruition. In fact, the fire was not foreseeable. If you can’t foresee it, you can’t be negligent for it.**The dock-owner doesn’t try to prove foreseeablitly b/c he would be contributorily negligent for the spark from the sodderer.

(iii) Wagon Mound II caseFACTS: negligent act on boat that pollutes bay with oil. Resulting harm was a BOAT burning when a sodderer on the dock it dropped

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something into the water/oil. HERE, proves that fire was foreseeable, though unlikely.

ANALYZE:

(1) Here, fire is part of the foreseeable risk that made act negligent: the risk of fire, though small, was not outweighed by any utility, because there was no utility.

(2) As fire was part of the class of foreseeable risk that made the act of polluting a breach, there is proximate cause.

(iv) PalsgrafFACTS: is standing on train platform. Two guys boarding train, one with a package. Guy with a package jumps on, guard tries to push him on, package falls, explodes b/c of fireworks inside, and she gets hit by the scales at the other end of the platform. Court estimates she’s about 25 feet away.

ANALYZE: (1) Here, the act of pushing the guy towards a moving train was negligent b/c the risk of him getting run over, and the risk of dropping/breaking the package outweigh the utility in making the earlier train.

(2) The negligent act was the but-for cause of the explosion: But for the pushing, the package doesn’t drop, there’s no explosion, there’s no scale to hit her.

(3) The foreseeable risks of the negligent act were physical injury to the passenger, breaking the package.

(4) Although the negligent act caused an INJURY in the same class

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as the foreseeable risk that made it breach (i.e.: physical injury was foreseeable, and physical injury resulted), it was not foreseeable that someone standing far away would be physically injured; the woman wasn’t in the class of persons that would be foreseeably harmed. Thus, no proximate cause.

HYPO: Palsgraf, but now the package is marked LOUDLY with “biohazard.”

Here, the woman standing 25 feet away is in the class of persons for whom the risk of foreseeable harm made the conduct a breach; the biohazard indicates a foreseeable risk of harming in a greater “zone of danger”

(b) Old rule: (NOT ON EXAM)Proximate cause can exist even for unforeseeable harms so long as they were DIRECT and no new tort by someone else intervened.

Polemis case: Famous case was with a ship docked w/ cargo of kerosene. Folks working on ship walking on it, and drop a plank into the hold. This was breach: there are risks: you could kill someone, damage property, etc. However, it WASN’T a foreseeable risk that the ship could blow up, probably.

Court here just said that there was direct cause: they dropped it, and that’s enough.

(c) Andrews dissent from Palsgraf: (NOT ON EXAM)Proximate cause is not limited by “zone of danger/class of people”: use additional criteria like space and time limitations.

Ex: this theory would find proximate cause with

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the woman 25 feet away in Plasgraf.

(3) MANNER (MECHANISM) OF HARM: Doesn’t necessarily matter

Though in some instances, unforeseeable MANNERS in which a FORESEEABLE CLASS OF RISK results to a FORESEEABLE CLASS OF PERSON are “merely a variant of the foreseeable” and will not be a problem for proximate cause, some situations have manners that are just SO BIZARRE that EVEN THOUGH it created a foreseeable injury to a foreseeable class of person, we won’t say it was proximate cause. ON AN EXAM, MAKE ARGUMENTS BOTH WAYS ABOUT WHETHER IT WAS TOO BIZARRE.

(a) UNFORESEEABLE MANNER BUT STILL PROXIMATE CAUSEHughes v. Lord AdvocateFACTS: Negligent act was leaving the manhole unattended while taking tea. This was negligent b/c of the risk that people could fall in, lamp was unattended, type of person placed at risk is likely children since they’re curious. Actual risk that came to fruition was boys emerging from the hole, lantern broke, kerosene vaporized in the hole. Kid was knocked down the hole and gets burned climbing out.

Risk rule: Class of person matches (kids), as does class of harm (burning).

Manner: here, the kerosene vaporizing wasn’t foreseeable, but court says that it was “merely a variant of the foreseeable”

(b) UNFORESEEABLE MANNER BUT NO PROXIMATE CAUSEDoughty case: negligent act was dropping the cover into the vat. The risk of injury is burns due to splashes. Here, the injury was a burning. However, the manner wasn’t from a splash caused by dropping, but from an eruption that was the result of a chemical reaction.

Court says no proximate cause…too bizarre.

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(4) PER SE RULES: THINGS THAT ARE FORESEEABLE AS A MATTER OF LAW(a) -RESCUE DOCTRINE: Rescuers are per se

foreseeable when danger is created; is liable for harm to rescuers who immediately respond, though rescuers acting negligently in their rescue (hard to do b/c of Emergency Doctrine) will have damages impacted/eliminated b/c of contributory negligence.Werner (Trestle rescues case where cousin rescuer acts irrationally, but it’s per se foreseeable)

(b) Thin Skull RuleIf is the proximate cause of an injury, he is liable for unexpected physical and psychological effects of that injury.

Said another way:If because of idiosyncratic , injuries resulting were more serious than was be foreseeable, there is still proximate cause so long as the underlying physical injury was part of the class of risk that made the ’s act a breach, and was a foreseeable . I.e.: s take victims as they find them. HammersteinFACTS: Breach of hotel was not repairing fire alarm: the risk was that an alarm going off would cause people to get trampled, falling down, injuries during exit. Here, injury during exit did occurred, and diabetic guy got gangrene from it.

HOLDING: Although GANGRENE was not foreseeable, b/c of Thin Skull rule, takes victim as he finds them and is the proximate cause fo the injury. The ankle spraining was within the class of risk that made failure to repair the alarm a breach, and the was within the class of people (hotel guests) that were at risk for the harm.

HYPO: Weightlifter in top shape, gets in a car wreck, suffers a minor injury and has a strange psychological reaction since he’s not invinciple…realized his body wasn’t perfect. He literally physically deteriorates. is liable for the deterioration: take your victim as you find it.

HYPO: Running over Bill Gates. You’re liable for

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whatever wages he loses, which for him is lots. Take victim as you find him.

(c) Fire Scenarios (NOT ON EXAM): NY rule (urban) is one-house limit, Midwest rule (rural) is longer to get back at the railroads causing sparks. Just know fire raises proximate cause issues.

(d) Accident Aftermaths:If is the proximate cause of an accident, even if what occurs in accident aftermath is bizarre, the first can be liable until “the waters clear.”Marshall v. NugentFACTS: Accident was foreseeable, but not all the effects: car was pulled over, guy was going to get help, and was hit by another car. HOLDING: Goes to jury: could be proximate cause.

HYPO: Guy Back on the road, driving away, and then get in another crash. Here, no proximate cause for first . The idea is that there is a “termination of the risk.” (see “termination of risk”)

(e) Subsequent Medical NegligenceIf 1 is the proximate cause of ’s injuries, he also is liable for subsequent medical negligence in treatment of THOSE INJURIES or in transport to hospital.AnayaFACTS: 1 causes accident where child injured is airlifted out, and then helicopter crashes due to negligence and child dies.

HOLDING: 1 liable for negligence in the transport to hospital.

THOSE INJURIES : If Dr. chops off the wrong arm, or commits some sort of intentional tort, no proximate cause for 1.

**Of course, the negligent medical party is going to be liable for the injuries that they cause too. So, we would have some form of joint liability for the aggravation of the injuries, and just 1 liable for the initial injuries.

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(5) D1-D2 Intervening Causes(a) Rule: For the 1-2 scenario, the key is to

determine whether the increasing risk of an act like 2’s was a risk that made ’s act breach. If 1’s act was breach BECAUSE it exposed people like to acts of negligence or even criminal acts from people like 2, then 1 is the proximate cause.

(b) Termination of risk: (see above in accident aftermaths too)If 2 became “totally in control” of a situation (possibly shown by a large time gap, but not necessarily) and had the ability to entirely stop an injury actually caused by 1 but did not, liability “shifts” away from 1 and entirely to 2, and 1 is not the proximate cause.

Ex: 1 negligently lets dynamite lose where kids can find it. Exactly what is foreseen happens, and kid brings it home. Parent knows what it is, lets kid keep it, and gives it to who is hurt. sues original 1, but no liability. Idea is that mother is responsible…we have a “shifintg of responsibility” or termination of risk.

Ex: 1 negligently installs a light 25 years ago. 2 becomes the owner, and knowing that it’s faulty leaves it alone. Here, although 1 is negligent and is but for cause, 2 was totally in charge of the light, could have fixed it and didn’t , and responsibility has shifted to him.

(c) Strategy: (really no different than all than general proximate cause approach)First, identify 1’s negligent act.Second, characterize the class of risks/persons risk that made 1’s act a breach.Third, ask if part of the reason the act was negligent was that it exposed to the risk of the sort of negligent/intentional behavior from 2 that did occur. Fourth, ask whether the MANNER that ’s harm resulted in was not so bizarre or attenuated that we wouldn’t want to call it proximate cause. If YES, then 1 is proximate

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cause.sFifth, Consider “termination of risk”: did 2 have complete control of the situation such that she could have but did not prevent injuries? If YES, then 1 is not proximate cause.

**Terminology: D2 is an “intervening cause”. We call it this b/c of the temporal nature of what happens. If the intervening cause cuts off D1’s liability, it is a “superseding cause”; if not, it is a “concurrent cause.”

(d) Intervening forces of nature: 1-God scenarioReally, no problem:HYPO: 1 is negligent in installing sign, and then God creates a storm that causes sign to topple over and hit plaintiff. Idea is that this was out of anyone’s control.

i. One possibility is you put sign up negligently, and the storm would have put the sign down however it was built. Here, no liability b/c no actual cause: but-for the negligent act in putting the sign up, the STILL would be injured: even sign is up in a reasonable manner, it’s still coming down.

ii. Second possibility: sign is put up negligently, and storm knocks it over and hits . Then, we just have a mechanism problem. We have the same injury that was foreseeable to begin with, so we just have to decide if it was so bizarre that we won’t have liability.

(e) Illustrations:i. Watson:

FACTS: D1’s tort is negligence: derailing gas tank car. The tort was negligent because of the risk of environmental damage and fire from people throwing matches carelessly. D2’s tort is unclear: he may have intionally thrown match at gas spill (if so, conversion/trespass to chattle) or may have just been negligent.

OUTCOME: (1) 1’s negligent act was breach because it carried with it increased risk of fire if others

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negligently lit matches, but likely not because of an increased chance of arson. (2) 1 is only liable of 2 acted negligently.

ii. Hines v. GarrettFACTS: 1 (RR_ is negligent in going past the ’s station, leaves her back knowing that she would have to go back through a high-crime area. She did, she was attacked by criminals acting intetionally.

HOLDING: As the reason the risk was breach was that it was unreasonable to expose someone to the high-crime area since they could be attacked, and the actual risk that materialized is that she was attacked, RR is proximate cause.

iii. HYPO: 1’s negligent act is not maintaining a fire exit. 2 is an arsonist, whose fire injures victims when they can’t leave.OUCTOME: 1’s act was breach b/c it exposed people to risk of fires in general, regardless of the manner they were started. Court finds proximate cause.

iv. HYPO: D1 is negligent in car accident, hits a doctor, who starts to have a series of very bad seizures. On last day of his life he has five seizures. Kills himself. Family sues negligent driver. Here, killing himself was an intentional action. Is D1 liable, or does D2’s action cut off liability?

Cases split here, and with suicide watch for prison inmates. MAKE ARGUMENTS BOTH WAYS..

s argue that it should turn on whether was acting irrationally or rationally. If suicide was irrational, it’s thin skull rule and is liable per se. If suicide was “rational”, might have a chance to say it was not part of risk that made his act breach.

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v. DerdiarianFACTS: D1 is Felix Contracting Corp, who’s negligent act was not blocking construction site off from traffic sufficiently. D2 is driver who is having a seizure.

(1) Risk that made setup a breach was that someone could accidetnly hit the site, negligently or otherwise.(2) 2 did negligently hit the site.(3) Was the MANNER with which the harm occurred so bizarre or unlikely that we would intuitively not call it the proximate cause? NO. This is an EASY case.

Thus, there is proximate cause.

** Allegedly negligent act wasn’t having too few people warning traffic: the reason they couldn’t go for this is b/c the lack of the flagman isn’t the but-for cause. We can’t say but-for to put a flagman there there’s no accident…the seizure isn’t going to stop b/c of a warning man.

vi. VentricelliFACTS: D1 leases car w/ defective trunk. D2 is Moldonado, he negligently drove into guy a few car lengths on side of street in a parking spot.(1) 1’s act was breach b/c of the risk that trunk would obstruct rearview, cause to pull over and become vulnerable to passing traffic.(2) 2’s resulting harm was not within the scope of risk that made 1’s act negligent: this occurred in a parking space, not from passing traffic.

OUTCOME: No causation.

(f) Lawyering: note that this all really turns on how much detail with which we try to describe the risks that made s act a breach. The more detail we describe it with, the more we narrow the scope of resulting harms that we will consider

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breach.

Remember that s will try to describe with lots of detail, s will paint with a wide brush.

D. Defenses to Negligence1. Contributory Negligence & Apportionment of

Faulta. Rules

(1) C/l rule: ’s contributory negligence is a complete bar to his recovery

(2) Modern Comparative fault rules(a) Pure comparative fault:

If is contributory negligent, can recovery, but recovery is reduced by percentage of fault attributable to the .

(b) Modified comparative fault rulesi. If is contributory negligent, can

recovery ONLY if ’s fault is LESS THAN OR EQUAL TO ’s FAULT (i.e.: 50-50 can still recover), but recovery is reduced by percentage of fault attributable to the .

ii. If is contributory negligent, can recovery ONLY if ’s fault is LESS THAN ’s FAULT (i.e.: 50-50 CANNOT recover), but recovery is reduced by percentage of fault attributable to the .

b. Illustration of different approachesHYPO: ’s damages are 100k, B’s are 50k. is 60% at fault, B 40%.What damages for ?

(1) At common law: can’t recover b/c he’s contributorily negligent.

(2) Assuming a pure comparative fault:(a) A is responsible for 60% of his own damages, but

will recover 40% (40K) from B.

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(b) B is responsible for 20K of his own damages, but will recover 30K from A.

Thus, A owes B 40K, and B owes A 30k. (We don’t set them off and say A owes 10K or anything like that…they are INDEPENDENT payments b/c insurance is the one paying).

(3) Assuming modified comparative fault rule can’t recover b/c equal to or more than half at fault

HYPO: what if is only 50%? Then, some jdx. let him get his half.

Wassell case: The higher the cost of mitigating the risk, the lower the fault of the party who didn’t do so. This is at least some approach to comparing fault: we can compare the costs of avoiding.

c. Exam ApproachFirst, identify contributorily negligent act, then ask whether it was a breach: did the risks outweigh the benefits? It’s possible that ’s activity has some benefit, so it’s not negligent to run the risk. This is a quick job on the exam.

And, remember that the contributory negligence only reduces recovery if there is but-for causation (but for the ’s negligence, the wouldn’t have been injured) and proximate cause (the risk that made the negligent must be the risk that came to fruition).

HYPO: negligently is wandering in the dark, gets hit by negligently driving. Here, the risk that came to fruition was not in the same class of risks that made the negligent, so no proximate cause.

On an exam, don’t go through all of this for the ’s contributory negligent. Just analyze why action was unreasonable. Only talk about the but-for cause and proximate cause if there’s a big issue about it.

d. Problems raised by comparative fault approach(1) Last clear chance

(a) C/l rule before comparative fault:If has “last clear chance” to avoid accident and does not, ’s contributory negligence is no bar to

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recovery.

(b) Effect of comparative fault:No need for the last clear chance rule; just assess damages to and in proportion to their fault

(2) Rescue doctrine(a) C/l rule before comparative fault:

Rescue doctrine is about proximate cause: we will deem rescuer a foreseeable , so is proximate cause if he is proximate cause of injury that needed rescuing.

(b) Effect of comparative fault:SPLIT:i. Govich: Decrease rescuer’s damages if

contributorily negligentThis has the effect of forcing us to evaluate whether a rescuer was negligent, but note that it usually won’t be a problem b/c of the emergency doctrine, where a wide range of action is reasonable in an emergency.

ii. Ouellette: DO NOT decrease rescuer’s damages: i.e.: no comparative fault for rescuersIdea behind this is that we want to keep the policy of encouraging rescues, and that decreasing damages is a deterrent.

(3) ’s intentional or reckless behavior

(a) C/l rule before comparative fault:If ’s conduct was intentional or reckless, and was contributorily negligent, contributory negligence was not a bar to recovery.

**Theory here was that you couldn’t compare apples and oranges.

(b) Effect of comparative fault:Should we decrease ’s damages based on contributory nedligance when is intentional or reckless?

SPLIT; answer turns on statutes. i. If statute talks about comparative “fault,”

that might well include comparing

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intentional to negligent.

ii. Or, if it just refers to negligence or reckless, that would suggest don’t compare intentional.

Most likely, court isn’t going to be that comfortable comparing an intentional tort to a negligent plaintiff. And, not much practical effect anyway. Would jury really allocate fault to the rape victim? Vast majority of fault is going to go to the negligent .

(4) ’s illegal activity(a) C/l rule before comparative fault:

’s recovery barred if injured while engaged in illegal activity.Barker v. Kallash: pipe bomb case where guy bought fireworks from 9/yo and tried to sue.

(b) Effect of comparative fault:If the engages in a blantant, serious, illegal criminal activity, STILL can’t recover under comparative fault as at c/l.

However, if criminal activity is less serious (i.e.: the illegal left hand turn), then just decrease damages in proportion to fault.**This is just an arbitrary choice that courts will decide as a matter of law. They’ll ask whether the activity rises to a level where is barred. Ex: VA case where engaging in extramarital fornication was illegal, court ruled it was serious enough to bar recovery.

(5) Intervening cause: NO CHANGEIntervening causes may cut off 1’s liability. If there is two s, you might want to say that if we have comparative fault, since both are actual causes is get rid of the superseding/proximate cause bar and treat them both as causes of the injury, and go to comparative fault. That has not been done. We’ve kept this part of proximate cause intact.

(6) Res ipsa loquitorRes ipsa allows us to prove breach and causation when we don’t know what the negligent act was.

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This raises two problems with a comparative fault system

(a) In dividing the fault, we have to assign some amount to the where we don’t really know what to compare to since by definition we don’t know what s negligent act was

SOLUTION: Just throw it to the jury. Whatever they come up with is better than all or nothing.

(b) Third prong of res ipsa specifically barred use if was contributorily negligent.

SOLUTION: Get rid of prong three under comparative fault.

(7) Settlement CHECK ON THIS…what’s the point here?(a) Old settlement rules

i. One judgment rule: ’s claim is fully satisfied only once; you can’t recover from each defendant for the full amount twice.

ii. Releases: when settles with one , grants x a release from all liability for the cause of action.

c/l rule was that if released one , the release had the effect of releasing all s.

Thus: 3 negligent s cause injury, and you reach a deal with one for his share, and give a release, you can’t recover from the others…the cause of action was extinguished by a release.

Problem was that no one would settle.

Solution: covenants not to sue

iii. Covenants not to sue: not releasing from liability, just contracting not to sue. This had a good effect: it didn’t grant a release, and if you decided you needed further recovery from others, you could still do it.

(b) Settlement rules w/ comparative faultHYPO: is liable for 10%, 1 for 45%, 2 for

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45% of damages totaling 100K

settles with 1 for 10K. What damages from 2 at trial?

- At c/l, gets nothing b/c of contributory negligence defense- If J&S jdx., can get 80K from 2 (=100K total minus 10k from settlement, minus 10% liability).

**And, note that if 2 has to pay 80K, he can’t get contribution from 1. Otherwise, no one

would settle b/c there would be no point. Settlement precludes contribution.

HYPO: What if settles for a low amount? Starts to look like collusion.

Settlement precludes contribution SO LONG AS it is in good faith (question of fact).

- If several jdx., can only get 45K

(8) Contribution(a) C/l rule was pro-rata: if one was held liable for

all damages but there were 3 s, then could only bring action for contribution for the ¼ share

(b) Comparative fault: now, action for contribution can get the correct amount according to fault. Just do “comparative contribution”.

HYPO:-40%1-20%2-40%

Here, if 1 pays ALL of ’s damages (i.e.: 60% of total damages), he can get 2 to contribute the 40% that he owes.

Of course, this only comes up if we have J&S and one is found liable for all damages. If we have several liability, there will NEVER be a contribution issue b/c a given will never be liable for more than his share of an indivisible injury.

(9) Indemnity: NO CHANGE1 and 2: both are liable, but it’s not a situation where each was negligent and caused the injury; the non-negligent party can be COMPLETELY reimbursed (i.e.: receive

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indemnity from negligent ). (a) Vicarious liability

Ex: Auto accident, and sues driver and Domino’s Pizza. Basis of Domino’s liability is its employment of the driver.

(b) Retailer (can sue store where you bought the faulty product, but they can get FULL amount

These rules don’t change with comparative fault.

(10) J&S Liability(a) C/l rule: put risk of an insolvent on other

solvent s rather than on ; can recover entire amount from any one , who can then turn around and try to get contribution.Harder to justify when we have comparative fault, b/c we have the priority of only having pay for what he is at fault for.

(b) Effect of comparative fault:SPLIT: (illustrations are of: 25% negligent, 1 37.5%, 2 37.5%)i. American Motorcylcle jdx.: keep J&S

liability even after comparative faultIllustration: Here, can NEVER recover the 25% he’s at fault for, but can recover up to 75% from EITHER 1 or 2 (of course, not from both), and then whoever he sues will go after the other for contribution. If 1 is insolvent, 2 is out of luck.

ii. CA PROP 51 HYBRID SYSTEM: keep J&S for ECONOMIC (i.e.: quantifiable omney damages, like medical bills, lost wages), but go to Several Liability for NON-ECONOMIC (i.e.: pain and suffering) after comparative fault.Rationale for this is that we still want to be really sure they can recover their actual out of pocket expenses, but it’s a lower priority that they recover the suffering stuff, so put the risk of an insolvent on for non-economic damages.

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iii. Some jdx. may abolish J&S altogether, and go to several for all damages after comparative fault.Illustration: can NEVER recover the 25% he’s at fault for, and has to see each separately for his 37.5%. If a is insolvent, is out of luck.

(11) Subsequent medical negligence proximate cause rule: In MAJORITY, no change.HYPO: Accident attributable to 1’s negligence, post-accident medical accident excacerbates. (a) At c/l, 1 is liable for the aftermath malpractice too;

2 is not an intervening cause. So, at c/l, 1 is liable for all damages, and 2 (the medical worker) is liable for damages he causes.

(b) Modern approach after comparative faulti. MAJORITY RULE (assume vast b/c

Selmi didn’t mention a minority):NO change; we won’t have 1 only liable for a share of the medical negligence damages, he’s still liable for ALL damages, while 2 is liable for his.

(12) Allocating ALL fault to even though is negligent.(a) C/l rule:

No contributory negligence bar to ’s recovery when ’s negligent act was putting at risk of ’s own negligence and IS negligent in that way.BexigaFACTS: injured while operating manufacturing press in repetitive motion. He had to make a correction, but the repetition caused him to activate the machine while his hand was there. is negligent for not providing safety guards.

ISSUE: Is negligent too? If so, do we bar his recovery?

HOLDING: is clearly negligent: there was a high probability of harm, high amount of harm that would result if it did occur, and a very low utility. He’s clearly negligent too. However, from a policy standpoint, we won’t bar his recovery. At some point, this negligent action is not just foreseeable but INEVITABLE: sooner or later with the repetitive motion thing, you’re going to f-up. And,

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add in the fact that there is a certain pressure to maintain a rate of production, and there’s just no way that it’s fair to bar recovery.

(b) Modern approach after comparative faultISSUE: Should we DIMINISH ’s recovery, or should we allow full recovery as in Bexiga?i. Majority

Don’t diminish recovery for for comparative fault when ’s negligent act was putting at risk of his own negligence.McNamaraFACTS: Mentally ill person hanged herself while confined in state hospital.

HOLDING: Don’t reduce ’s (decedents of the dude) recovery.

ii. (small) MinorityDiminish recovery for for comparative fault when ’s negligent act was putting at risk of his own negligence.

e. Who to include in the comparison of fault: the impact on apportionment (regardless of whether the jdx. is J&S or several)(1) Immunity vs. Fault in multi-defendant case

General rule: Include ALL parties against whom fault is alleged in the comparison of fault, including those who are absent and immune from suit, and exclude parties who are without fault.

(a) Immunity If one is not at fault (b/c too young to qualify to be at fault), any apportionment of fault the jury gives to him is erroneous and will be spread to other defendants in proportion to their fault.Price v. KitsapFACTS: Jury assigned 80% fault to 4y/o, who was too young to be negligent, and 10% each to dad and bus company after 4y/o pulled brake on bus. HOLDING: Throw out 4y/o’s share as if it never existed. Since dad and bus co were each liable to the same extent, make them each share 50-50.

HYPO: what if Dad was 15% and bus co is 5%?

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Then it becomes dad 75% and bus co 25%.

(b) Fault If one is IMMUNE from liability (i.e.: sovereign immunity), their share is still included in apportionment consideration, but just can’t recover it.HYPO: Government is 75% liable, 2 is 25%. Does 2 become 100% since government is immune? NO. is still just 25%. So, if jdx. is J&S, bears the risk of an IMMUNE co-, but if it’s several, then bears the risk.

(c) If chooses not to include a , the included s will NOT be responsible for the omitted party’s fault. Choosing not to include an at fault party is like assuming that party’s fault and agreeing not to pursue it.HYPO: is in a car driven by best friend, accident is caused by three s. sues only 2 and 3. What do you do with 1’s negligence here? Include it in front of jury; if you don’t, then you’re going to allocate wrong. Don’t ignore fault just b/c one party isn’t there.

**I’M ASSUMING 2 AND 3 CAN’T GET CONTRIBUTION UNDER J&S HERE, RIGHT? THE IDEA IS THAT BY EXCLUDING SOMEONE FROM SUIT LIKE THIS, IS ASSUMING A PORTION OF THE FAULT.

(2) Including intentional tortfeasors in the comparison with negligent tortfeasors?SPLIT depends on comparative fault statutes.(a) Exclude the intentional tortfeasors from

comparison with negligent tortfeasors.TurnerFACTS: Nurse injured by violent patient, wasn’t warned by Dr. Dr. is clearly negligent.

ISSUE: Should we include the intentional tortfeasor?

HOLDING: NO

RATIONALEi. Comparing is like apples & oranages…you

just can’t do it.

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ii. The very negligent act is failing to protect from the intentional harm. If the negligent act is the failure to protect and you fail to do that and the harm occurs, you ought to be liable for all of that.

iii. Whether will recover less depends on if we have J&S liability.

- If there’s J&S, then can still recover complete amount from negligent tortfeasors, and THEY will be harmed by the lack of inclusion. Of course, they could sue the negligent tortfeasor for indemnity possibly.

- If it’s several, then can only recover the share of the included negligent tortfeasors.

iv. Although might recover less if we exclude the negligent in the NEGLIGENCE suit, he can still sue the intentional tortfeasor separately for the intentional tort. Although can’t recover his damages twice, he could get the actual damages in the negligence suit, and the punitive damages for the intentional tort.

(b) Include intentional tortfeasors in the comparison with negligent tortfeasors.Bassett (roadblock case)FACTS: Highway patrol, police, park service negligently allow two guys coming back from fishing to get near roadblock during highspeed chase. They are hit by the guy cops were chasing (Ortega).

Comparative fault statute says to apportion to all parties at “fault…INCLUDING negligence.” Legislature had rejected a proposal to say “negligent, reckless, intentional”

HOLDING: Court says statute demands comparing intentional b/c of the word INCLUDING, which suggests that it’s not just limited to negligence.

2. Assumption of RiskThink of this as the negligence analogue to consent in intentional torts

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a. Express Assumption of Risk(1) Overview:

Explicit assumption of risk is usually contractual, so it’s sort of governed by contracts principals. For instance, you would need to decide if the k was enforceable, and whether the term covered assumption of the risk that occurred.

(2) StrategyThe assumption of risk issue comes up lots with sports and medical type situations.(a) First, ask whether the k CLEARLY covers the

risk; we want people to know that they are giving up rights. If the k doesn’t CLEARLY cover it, we will interpret against express assumption of risk.

(b) Second, ask whether the court is likely to be influenced by public policy factors to override the k by applying the Tunkl factors.

Tunkl factors suggesting that k expressly assuming risk is going to be unenforceable, assuming the terms of the k are broad enough to cover the situation:i. Business suitable for public regulation:

The more public the business, the more appropriate to regulate for public policy reasons, so we’ll regulate the ability to induce waivers, and not enforce the k purporting to assume the risk.

ii. Service of great importance to the public:

Medical treatement is more important than working out at the gym.

iii. Open to any member of publicIf so, less likely to be able to get them to waive their rights

iv. Bargaining advantage: essential nature of service The more essential it is (medical) the less chance it will be upheld;

v. Adhesion k (really just overlaps with 4)I.e.: was this a take it or leave it proposition?

vi. under control of Ex: the medical situation…if so, less likely to uphold. This might be an argument for differentiating healthclub case from sky-

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diving case. At club, there was still some ability to avoid risks yourself.

(c) Third, remember that courts will be more favorably included to accept express assumption of NEGLIGENT risks than INTENTIONAL risks.

(3) Four Cases illustrating enforceability in contractual (express) assumption of risk(a) Enforceable assumptions of risk

i. Boyle: diagnosed w/ cancer, goes to alternate doctor. He says he can’t guarantee success, and that his stuff wasn’t approved. She understands it’s non-standard, consents to care.

ii. Ciofalo: Swimming at pool at ’s gym, banged head, k agreed to assume full responsibility for injuries including those from negligence.

iii. Jones: Skydiving, plane crashes just after takeoff, exculp in k exempts from liability for all liability while upon the premesis or in plane.**Note that this clause was drafted very broadly. There would at least be some argument though that it wasn’t broad enough to cover a non-sky-diving related accident. Point is just to consider whether clause is broad enough.

(b) Unenforceable assumptions of riski. Tunkl: Admitted to hospital on condition of

assuming all risks, including negligent or wrongful acts or omissions.Rationale: IN this situation the releaseing party does not really voluntarily release, and may not have had adequate consideration. Service is one where everyone might need it at some point and when they do it will be essential.

We don’t want the PUBLIC to have to assume the risk of another’s negligence when they are contracting for an ESSENTIAL service

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b. Implicit Assumption of Risk(1) C/l approach before comparative fault

Assumption of risk (both primary and secondary) is a complete defense and thus completely bars ’s recovery.(a) RULE: To have assumed the risk, the plaintiff

must have BOTHi. Had knowledge and appreciation of the

risk that came to fruition(i) Traditional common law rule is

SUBJECTIVE (actual) knowledge is required, and that actual knowledge is not enough.

(ii) Minority rule is that objective knowledge (in Crews case, e.g.) is enough. Argument in favor of this is that demands reasonable knowledge.**Really, it’s weird to allow for assumption of risk from objective knowledge. This is a minority view. If you’re not knowingly giving up right to bodily autonomy, then it’s problematic.

ii. Voluntarily encountered the risk that came to fruition

(b) Illustration of common law approach (with minority “objective knowledge” of risk):

CrewsFACTS: Company excavates land, strikes gas line. Crew comes to scene to repair. is foreman in charge who had worked there for 20 years. While working on it, gas line explodes. argues that there was negligence in striking the gas line. argues that he had assumed the risk, and thus completely barred.

HOLDING: Assumed risk; it’s a complete defense.

(1) Did the know/appreciate? Yes; he knows leak is dangerous. However, he testifies that he didn’t know. Court decides that he must have known, and even if he didn’t, objective knowledge is enough.(2) Yes, it was just part of his job.

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**Note of course that unlike express assumption of risk, implied assumption doesn’t depend on contractual relationship.**Rescue doctrine doesn’t get police and firefighters.

(2) Implicit assumption of risk AFTER comparative fault

(a) Growing majority of jdx.We don’t really need implied assumption of risk anymore; each of the three types of implied assumption can be handled doctrinally in other ways. ON THE EXAM, the job is to figure out which category the assumption of risk is in, and then point out that it can be dealt with another area of the doctrine w/o implied assumption of risk.

i. Primary assumption of risk/lack of duty: no recovery(i) Definition of primary assumption

of riskPrimary assumption of risk occurs when and enter into a SPECIAL RELATIONSHIP where acknowledges that there are some INHERENT RISKS risks that is not obligated (i.e.: has no duty) to mitigate EVEN BEFORE THEY OCCUR.SundayFACTS: Novice skier () hit bush hidden in the middle of the bunny trail. asserts implied assumption of risk.

ISSUE: Was there a knowing and voluntary assumption of the risk that came to fruition?

ANALYSIS (CLASS): What are the inherent dangers of ski? Falling, hitting a tree, falling off the list, being hit by other skiers. Is hitting a bush one of the risks? Not totally sure.

HOLDING: No assumption of risk.

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Since novice skiers aren’t as good at turning, there’s an obligation to keep the slopes they are on clear.

SPECIAL RELATIONSHIP = joining the basketball game, buying the lift ticket, etc.

INHERENT RISKS Basketball: = incidental contact like on a rebound,

≠ getting punched in the face

Skiiing: = Cold weather-related risks, getting hit by other skiers,

≠ faulty lift equipment(See below in (3) for more on the definition of what inherent risks are)

(ii) Doctrinal impact: Since the prima facia case is not met w/o a duty, ’s can’t recover if there has been a primary assumption of risk, which is the same result under the c/l, so we don’t need a separate doctrine.

ii. Secondary assumption of risk Definition: These are cases in which unquestionably owes a duty of care, and has breached that duty (acted unreasonably) and thus exposed the to the risk. THEN encounters the risk knowingly and voluntarily.

At c/l, this was barred even though was negligent.

(i) Unreasonable secondary assumptions of risk = partial recoveryChoosing unreasonably to assume risk is just ’s negligence, so instead of completely barring ’s recovery as under c/l contributory negligence, we just reduce

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damages through comparative fault.

(ii) Reasonable secondary assumptions of risk = full recoveryAlthough by definition, reasonably assuming risk wouldn’t qualify for comparative fault, it would seem unfair and anomalous to punish for acting reasonably by completely barring recovery when we let unreasonable assumptions get partial recovery. Thus, we give them FULL recovery.

HYPO: Apartment fire started by negligence of the landlord in not fixing a fire. You come home and see smoke coming out of apt. After looking at it, you rush in to save something. Have you impliedly assumed the risk at c/l? Yes: knowledge of the risk, voluntarily encountered it.

HYPO: You ran in to save the syllabus for torts. Was that reasonable? No.

HYPO: You ran in to save a 200 y/o family heirloom. Possibly.

(b) Minority of jdx. w/ comparative fault keep implied assumption of risk. CHECK ON THIS…is it still a complete bar?

**On the exam, the job is to first apply the Crews test for voluntary/knowing assumption of risks, and then ask what the outcome would be if the jdx. had moved to eliminating the doctrine b/c of comparative fault.

(3) Further illustrations of determining the scope of inherent risks to which has knowingly/voluntarily accepted by entering into the relationship with .(a) Really, what we are doing here by defining the

duty is making a policy determination with the priority of not having tort law change the essential character of competitive sports.

(b) Effect of trying to draw a line where duty stops:Courts are now guiding outcomes much more. By determining whether something is reckless as

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a matter of law, they are taking out of the hands of juries the determination as to whether something was unreasonable. There’s a credible argument to be made that this isn’t a good approach.

(c) Things that absolutely won’t be a good line:

i. Violations of rules of the game: these can be absolutely foreseeable (late hits on the quarterback) and definitely within the inherent risks.Turcote v. Fell: Just b/c jockey violated a rule of racing when he injured another jockey didn’t mean that he had committed an act that he had a duty to avoid.

ii. Intentional actions: jumping offsides and plowing over a guy is still an intentional act.Hockey stick case: butt-end wasn’t enough.

(d) Growing trend: by entering into a special relationship, reduces ’s duty to avoid actions that are reckless, willful or wanton. If a participant can’t prove that another acted r/w/w, then they can’t prove that there was a duty and they don’t have a prima facia case.

i. This approach, in CA, applies to BOTH coaches and co-participants. The rationale is that we have the same priority of leaving the essential nature of sport untouched by tort law. For co-participants, the potential chilling effect of liability would be less vigorous competition, while for coaches, the problem would be less ability to “push” athletes to teach them.Kahn: Coach accused of negligence when freshman hits head on bottom of the pool, will be liable only if found recklessly to have forced her to dive w/o supervision.

ii. However, in choosing this line, courts may be taking the strange step of going out of their way to say that behavior is reckless, possibly expanding the definition to situations we don’t think of as reckless

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(e.g., Kahn).

E. Duty (Analyze this first on the exam)1. Overview

a. Two types of duty cases(1) Some cases there is a narrow duty b/c of the status fo the

in relationship to the (i.e.: trespasser on property). (2) In other cases, has limited duty b/c court is trying to draw

a line that would limit liability (e.g.: negligent infliction of emotional distress…courts are unwilling to say there is a duty of care to avoid the negligent infliction of emotional distress.)

b. Duty can be either expanded or limited.Illustrations of traditional rules on their way out.(1) Illustration of expansion: Common carriers and

innkeepersDoser case: ’s bus was involved in an auto accident. “A carrier of passengers for hire must exercise MORE than ordinary diligence for their protection. It’s duty stops just short of ensuring their safety. It is liable for slight negligence.” Traditionally, bus drivers and innkeepers held to a higher standard. It wouldn’t take much on their part to find them liable.

**Just remember this with common carriers and innkeepers…it’s a traditional rule on its way out.

(2) Illustration of limitation: “Guest statutes”(a) Alabama code: Owners of motor vehicle have no

duty to exercise reasonable care to passengers who are riding for free.

HYPO: You’re in Alabama, driving with your friend. Friend rear-ends dude negligently…you’re the passenger. Can you sue? There’s only a duty to exercise conduct not willful or wanton. This is a “guest statute”: if you’re a rider, you can’t hold the driver liable unless either you paid them, or the driver acted willfully or wantonly.

(b) Statutes evolved as a policy decision…to encourage hitchhikers, but now we don’t really need this anymore.

(c) These statutes began to be ruled unconstitutional in Brown v. Merlo (CA) as Equal Protection violations since they treated similarly situated people

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differently.

2. Limiting Duty b/c is owner/rightful occupier of the property relating to a tortThese are unique situations b/c we want to tread lightly on landowners’ rights: holding them liable for torts would in a sense be an infringement of property rights.a. People on ’s land in general:

(1) Common-law: Categories of Trespassers, Licensees, Invitees(a) Trespassers:

i. Rule: Where a person is on another’s land WITHOUT PERMISSION, the landowner only owes them a duty to avoid reckless, willful or wanton conduct UNTIL they become AWARE that they are there or are PRESENTED WITH SIGNALS that indicate someone is there.

WITHOUT PERMISSION: To be a trespasser, you just need to be in an AREA of land w/o permission. There is no requirement that a “trespasser” for duty purposes actually INTEND to be on the land (unlike for tort of trespass). UNTIL: When landowner becomes aware that they are there, the duty changes to something akin to that owed to a licensee: basically, you don’t have a duty to inspect for defects, but you do have a duty to act on the information you do have.

PRESENTED WITH SIGNALS: There is no duty to inspect your property…the constructive “should have been aware” only comes into play when warning signs come in.

Exceptions to the “should have been aware”:

(i) “Footpath exception”: even if you’re unaware of a person on a frequently-used area of your property, most courts impose a full duty of care on the theory that you

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should have known it was being used. Most common example is a footpath.

(ii) “Slight deviation exception”: (i.e.: you just barely are on there)…same thing as footpath

ii. Illustration:

Gladon: Guy on tracks drunk is a trespasser although he was at one point an invitee when he was on the platform. He’s a trespasser despite not having intent to be on the land. Until driver saw him, train co. thus only owed him a duty to avoid reckless conduct. After they saw him, the duty was the reasonable standard of care. Holding is that the driver could have been reckless in not slowing down after she saw him soon enough.

**Note again that the court seems to be stretching the definition of reckless…just like in Kahn.

(b) Licensees: someone has permission to be there, but they haven’t been invited.i. Who is a licensee:

Under c/l, social guests

ii. Duty of care owed to licensees:Not a full duty of reasonable care since there’s no duty to inspect the land, but there is a duty to act reasonably to information that you do have or should have.

- Some jdx. say these are just like trespassers who are discovered- Some say there’s a slightly higher duty than for trespassers

(c) Invitees: i. Who is an invitee

(i) Business visitors are invitees.(ii) If public is allowed to be on

property, they are also invitees.**NOT social guests

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ii. Duty of care owed to invitees is just the reasonably prudent person standard.

Note on Child trespassers: Kids just have less conception of personal property, so boundaries aren’t meaningful. This might be a reason to confine the doctrine only to young children, but there’s no absolute limitation necessarily.(a) C/l Attractive nuisance doctrine:

If child trespasser was attracted onto the property by the object on the property that injured them (e.g., the train turntable), they are deemed to have been invited onto the property and are thus owed the duty owed to invitees (the full duty of reasonable care).

Rationale:

HYPO: While trespassing, injured when they come upon a pool. Here, can’t use Attractive Nuisance Doctrine b/c the object that lured them wasn’t what injured them, so the land-owner only has a duty to avoid willful/wanton conduct.

Potential Exception: Common hazards rule (Not all jdx.)Common Hazards cannot be considered an attractive nuisance (e.g., irrigation canal, stock pond). Rationale is that they are just so important that we don’t want liability.

(b) Modern Rule:Reasonable duty of care owed to child trespassers when (EACH OF):i. Trespass by children is foreseeableii. Landowner knows or has reason to know

of the dangeriii. There is reason to think the child, by

reason of his age, will not be able to protect himself from this danger.

iv. **If these are met, it just means that there’s a reasonable duty of care. Don’t forget to analyze breach.

(2) CA rule:Categories of trespasser/licensee/invitee are not dispositive for limiting landowner’s duty of care. They are merely probative and are to be considered along with (Rowland factors):

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(a) Closeness of the connection between the injury and the s conduct (similarity w/proximate cause)

(b) Moral blame attached to ’s conduct(c) Policy of preventing future harm(d) Prevalence and availability of insurance(e) Foreseeability of the and foreseeability of the

injury (again, proximate cause)

**Main factor seems to be the foreseeability of the harm: this has the effect of taking foreseeability from the breach determination and putting it into the duty determination where the court will decide it.

**Factors just aren’t that useful, but we have to know them. The effect of the CA approach is that it is REALLY hard to convince courts that there is a limited duty for landowners as a matter of law, and thus things get fought out over breach.

b. Open and Obvious Dangers on s land(1) C/l rule

If danger on land is OBJECTIVELY open and obvious, land-owner doesn’t have a duty to protect ANYONE against that danger.O’SullivanFACTS: argues that the risks from diving into the shallow end of the pool were an open an obvious danger, and thus that he fits squarely within the open and obvious rule, and thus that he has no duty to warn against that risk. argues that since this is an open and obvious risk, we should just deal with it under assumption of risk, thus allowing a partial recovery given a comparative fault system.

HOLDING: Court declines to depart from the “duty” approach to open and obvious risks. They just call it a duty issue, and say there was none. Rationale for keeping duty approach, even though conceptually it could be an assumption of risk thing is that we want as a matter of law to protect landowners.

**Note that even if the court decides to treat this as assumption of risk, there’s a pretty good chance it’s primary assumption of risk, and that we just get right back to a situation with no duty under comparative fault, so couldn’t recover even if the court accepts his theory.

**Criticism: there are situations where it’s totally

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foreseeable that someone will be injured by an open and obvious injury: shopping and being distracted, being drunk at a bar, e.g.

(2) Modern ruleIf the landowner should anticipate that a person on their land will be harmed despite the fact that the danger is open and obvious, there is a duty to do “something more”

SOMETHING MORE: usually satisfied by a warning sign, but the growing trend is to say that warning signs aren’t “enough” more since if it’s foreseeable that you’re too distracted to see an open and obvious danger, then a warning sign is really meaningless.

c. People not on ’s land but harmed by something on the land.In RURAL AREAS, there is no duty of care to protect against NATURAL CONDITIONS, while there is a duty to protect against harm from ARTIFICIAL CONDITIONS; in URBAN AREAS, there is a duty to protect against both.

NATURAL CONDITIONS = tree, landslide, rock falling off…conditions inherent in properties itself, so it wouldn’t be fair to hold someone liable just for owning the property with these inherent conditions.

ARTIFICIAL CONDITIONS: In undertaking to create an artificial condition, an owner does something and thus owes a duty.

URBAN vs. RURAL: Just no reason not to protect against a rotting tree in an urban area…there’s a duty there.

d. Firefighters Rule (Some jdx.):Landowners owe no duty of care to a firefighter (or police, or EMT) who is on the property to fight a fire caused by the negligence of somebody on the property.

Exceptions (i.e.: places where there IS a duty to the fireperson.): (1) If negligent act that started fire violates statute or

ordinance, no firefighters rule (2) If risk that injures officer at the scene is not the risk

that is the reason that the officer was called TO the scene, no ff rule (i.e.: there is a duty to the fireperson)

Ex: called to the scene of a fire, ff injured by inhaling toxic substances.

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e. Recreational Uses Statutes: Just know that in some jdx. legislatures have adopted statutes that put a limited duty in place for (usually non-paying) recreational users. If paying, most likely it’s a business guest.

f. Landlords’ liability Though by definition landowners, landlords aren’t in possession, and more than that, they have granted an estate in land to another person. By doing that, they’ve ceded their right to enter…someone else is now rightfully occupying. So, we might treat them differently.

(1) C/l: lessor has no duty to exercise reasonable care to tenants or their guests.Exceptions to the c/l rule:(a) If there’s a common area that has not been

granted to someone else in a lease, landlord maintains duty of care since they haven’t given up their right to enter (e.g., a lobby of an apt.)

(b) If as part of lease, landlord took duty to repair, there would be a duty to do so under contract law.

(c) If landowner knows something needs to be fixed and fixes it negligently, they have a duty.

(d) If a landowner knows of a latent dangerous condition and doesn’t inform, liable until lessee discovers it himself.

(e) If property is being leased to someone who is going to hold it out for use to the public (dance hall, concert, eg), landlord continues to be liable.

(2) Paglesdorf jdx: Landlords owe a general duty of care in all circumstances.** Same things that would have been exceptions to the “no duty” approach are going to be factors to argue before the jury on the breach determination, but there won’t be an argument that there’s no duty. The most persuasive factors are likely to be the foreseeability of the injury and whether the landlord had a right to enter to make a repair at all.

(3) Short-lived CA approach (Lasted 10 years…overturned in 1995; now there’s the Pagelsdorf rule.)

Strict liability for defects in property for landlord.

Analogy is to product liability…a house is just a product.

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3. Limited Duty Because of Non-Feasance a. Overview

(1) In general, there is a no-duty rule for nonfeasance. You have to ACT to have a duty (unless duty comes from somewhere else).Yania v. BiganFACTS: Businessman jumps off a bridge and drowns. Other folks who had invited him onto the land and taunted him, just watch.

ISSUE: Did they owe him a duty of care?

HOLDING: This was non-feasance, so no duty.

**Note that the court narrowly constrains what their “conduct” was…if it had included the conduct in the formulation, then it’s mis-feance.**Note also that the court seems to ignore the potential for a duty to have arisen from this being a business invitee.

HYPO: D standing close to RR tracks and sees that a mother carrying a 1y/o baby walks across the facts trips, falls, and drops the baby. Person who tripped and fell is unconscious clear of the track, but baby has fallen on the track. Train is coming down the track. D knows train won’t be able to stop. All D has to do is take 3 steps, pick up the baby, with no danger to him. D thinks “If I do this, I’ll be late for torts”. Are you liable for negligence? No.

HYPO: D is not a heartless beast, but picks kid up, THEN decides to leave, and puts kid back.

Rule: If you put them back in same situation they were in, there is no duty either.

(2) Nonfeaseance/“misfeasance” distinctionNewton: alleged negligent act is failure to put lights around the hole. Here, this is part of the act of doing the job, not nonfeasance.

HYPO: Person comes, parks their car on a slight slant on the road. Sits there motionless, ready to get out when car starts to roll backward. Car rolls over the baby. N or M? M.

Really, the distinction is a policy one…the more narrowly we define “conduct”, the less likely there’s a duty, and vice

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versa.

As a shorthand way of thinking, misfeasance is doing something badly, while nonfeasance is not doing something at all.

**Note that misfeasance is a misnomer: we don’t assess the wrongfulness of an act until breach.

(3) Exceptions to the basic no duty rule for non-feasance.(a) There is a duty of care to those whom you injure.

South case: engineer following a train accident fails to cover victim b/c he didn’t want to get his coat bloody. Guy suffered further injury b/c there was no action taken.

Maldonado: injured by train’s employees, and they not only don’t help him but they prevent others.

**Note that in both of these cases, liability arises when DUTY arises. Thus, the s are only going to be liable for whatever exacerbation they cause (assuming of course that the initial act that caused the injury wasn’t negligent).

(b) There is a duty of care to those whom you put at risk of injury

HYPO: Lawyer driving home at night and hit a deer. Turns out to be a relatively small deer. You’re driving a Hummer. The Hummer is unscathed. You leave the flattened deer in the middle of the road. Another car comes and hits it.

Duty arose here b/c Lawyer put other people at risk of injury. He thus had a duty to act as an RPP (probably by staying behind and waving lights or something).

(c) There is a duty of care to those whom you’ve BEGUN to rescue (it’s an ACT) HYPO: car crash, car goes off road w/ pregnant woman in it. Officer appears immediately, calls fire dept., and begins directing traffic. Woman dies.

Is there a duty? He took multiple actions to address the situation, but court says no. Argument against

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duty is that there wasn’t enough action directed at her…he never did anything direcly attempting to pull her out of the car. Selmi disagrees.

Rst.: The duty of care that arose from a rescue can be relinquished if you leave the injured party in exactly the same place as they were before when you start to rescue them.

Krieg case: landlord didn’t take gun away from potentially suicidal guy…just put it on the shelf. She undertook a duty, but didn’t leave the person any worse off. If you undertake a duty, you can decide to no longer have the duty, but you can only do so if you leave them no worse off.

Two things that would leave someone worse off. i. Increase in injuryii. If you help, and other people forego helping

b/c they think you’re going to do it.

(d) Duties of care can arise out of special relationships between and i. Determinate relationships

(i) Carrier/passenger(ii) Innkeeper/guest(iii) Landowner-invitee(iv) Custodian/ward(v) Employer/employee(vi) Teacher/student

ii. Indeterminate relationships: no bright line, so argue both ways. Key is whether the expectation is that they will owe each other a duty.

If two parties are involved in a “common undertaking,” and implicit in such a common undertaking is the UNDERSTANDING THAT ONE WILL RENDER ASSISTANCE to the other when he is in peril if he can do so w/o endangering himself, then they owe each other a duty of reasonable care.FarwellFACTS: Out for a night on the town, two guys flirting w/girls get beat up. One finds the other unconscious under a car, and puts

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his friend in his car. Then leaves him at his grandparents and left him in the back of the car. He’s not found, and would have been saved if he were found sooner.

ISSUE: Assuming we are in a “relinquishment” of the rescue duty from putting the person back in the same position (realistic since he was going to be left under the car anyway), is there a duty of care?

HOLDING: Yes. The common undertaking was girl-chasing, and that’s enough for a duty here.

**Note that concert of action could have been applied too, but that isn’t usually done in the context of the actors themselves.

HYPO: Guy applies for a job, takes s pre-employment physical, not shown the results of the physical, later finds out he has cancer, and if he’d been told of the results of the physical, could have treated it. Is there a duty to disclose the results the test?

Outcome: By doing the test, they affirmatively acted, so by doing so they obligated themselves to tell him the results. This isn’t a special relationship duty…it arises out of the action of making him submit to the test.

(e) Duties of care can arise out of contractual relationshipsCourts will be wary of contradicting the financial expectations of contracting parties.

i. When the injured party is in privity of k with the . (1) If damages are NOT physical injuries and are instead just ECONOMIC losses (i.e.: lost business, Thorn, SW), then recovery is going to be in contract law; tort is about physical damages, so there will be no duty.

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(2) If you do have a k, and the k is intended to protect ONE OF THE PARTIES from certain PHYSICAL injuries, entering into that k can give rise to a duty. (Mobile, DCR)(3) Once the duty arises, the recovery is now in tort: you can’t use limitations that would only apply in k law to limit the tort recovery. The limitations have to be tort limitations. DCR

At C/l, a promise alone was not enough to create tort liability even if there was reliance on it.Thorne v. DeasFACTS: Alleged negligent act is failure to procure insurance as per his promise, and the ship is lost. There was no consideration for the promise. Damages are ECONOMIC b/c he is not the actual cause of the sinking (buying insurance has nothing to do with sinking), so the issue is whether there is liability for the loss of the insurance money.

ISSUE: Was there a duty?

HOLDING: No. Not only was the k unenforceable, these were economic damages more appropriate for k. No recovery in tort.

Leavitt: Promise to repair ceiling plaster in ’s house. suffers a physical injury (distinguishes Thorne) when plaster falls, and the k was enforceable (distinguish again). Holding: No duty under tort law… parties didn’t expect that the k entering would create liability for personal injury.

Mobile case: k was enforceable here, and physical injuries were there again. Under Leavitt, this would be no recovery. RULE: Lessor is liable…this is different. Difference is the expectation of the parties….changing conceptions of the role

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of the lessor. It goes along with implied warranty of habitability too. We just have different expecations (Mobile is 30 years later). So, here, entering into even the commercial lease gives duty, at least where there’s a duty to repair the property.

DCR v. Pink: party pleads the $50 limitation clause in the k to install a burglar alarm from failure to warn that alarm could be easily defeated. Damage here is physical damage from when the stuff got taken. This isn’t Thorne. ’s theory for recovery rests upon a non-feasance argument, since there was a failure to warn. The theory is that a duty comes from the ongoing contractual relationship. HOLDING: General duty of care accompanies the ongoing contractual relationship B/c it’s a safety-related k.

By entering there’s a tort duty; since it’s a tort case, and not a breach of k claim, the contractual limit doesn’t apply.

**The logic here is that there was a limitation on contractual liability. You can still limit your liability in tort by doing so explicitly.

ii. A duty of care to third parties can result from contractual relationships.

In THIRD PARTY to k cases, courts are even less willing to imply a duty than when one of the parties to the k is suing. It’s even possible that MISFEASANCE in performance of a k won’t lead to a duty of care to third parties.Winterbottom v. Wright FACTS: The injury is to a third party outside the k. Unclear whether there is misfeasance or non-feasance.

ISSUE: Is there a duty to the third party?

HOLDING: Court says no duty to the third party b/c of a lack of privity.

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HYPO: Smith takes his car to auto shop, leaves it, guy agrees to check his brakes. Smith leaves keys on front seat. He comes back, gets car from the keys on the front seat. Repair shop hadn’t ever even touched the car. Smith’s brakes fail, he hits (guy on sidewalk), who sues repair person. ISSUE: Did the repair shop owe a duty of reasonable care to the pedestrian?RULE: If the rule is Winterbottom, then non-feasance in performance of a contract does not give rise to a duty of reasonable care to parties with whom there is no privity of k.APPLICATION: Here, there was no privity of k b/t repair shop and third party, and this looks like .CONCLUSION: No duty.

There may be no duty of care to third parties even when the subject matter of a k clearly contemplates public safety.Moch FACTS: K is between water co. and city. failed to provide sufficient water: nonfeasance or misfeasance…it’s arguable. is guy who’s building was burnt down when a fire hydrant wouldn’t work. He’s a third party not in privity. K clearly contemplated providing water for safety since they were giving it to fire hydrants.

ISSUE: Is there a duty of care to the third party?

HOLDING: No duty. Moch doesn’t allow third party to bring an action in tort for failure to have water available.

** Cardozo might have missed the fact that there might not be liability here b/c no breach even if he found a duty. This case might be an overstatement…it implies that there can NEVER be a duty to**Note too that this looks like a misfeasance case, although it’s arguable: the water co.

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did a bad job in the performance of a contractual obligation: it wasn’t that they didn’t perform the obligation at all.

Straus: blackout, basement was site of injury to a third party when old guy went down there to get some water and got hurt. Court says no duty.

Where there is a high degree of expectation that someone in the same class of persons as the would be injured from failure to perform the k, when the k was clearly a safety k, and when there is a relatively small pool of potential ’s, courts may imply a duty b/c doing so would not do much to undermine the financial expectations of the parties.PalkaFACTS: Service k, hospital enters w/ service company to do services in the hospital. 3rd party not in privity gets physical injury. says no duty since no privity.

ISSUE: Despite the lack of privity, and the fact that this is nonfeasance, is there a duty of care to the injured party?

HOLDING: Yes.

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