53198201 my big torts study guide

8/13/2019 53198201 My Big Torts Study Guide

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Torts IProfessor NelsonIntroduction to the Course: This course will cover three main types of torts: intentional,negligence, and strict liability. ach tort has elements, but the difficulty is applying thefacts to the rules. !tate law will be the focus, because torts do not often become federal

issues. "inally, public policywill li#ely play a very large factor in the court decisions,even if it is not even alluded to in the opinion.

1. $now the %lac# &etter &aw for intentional torts, negligence, and strict liability.Intentional Torts

%attery'ssault"alse ImprisonmentIntentional Infliction of motional (istressConversionTrespass to Chattels

Trespass to &and

Defenses to Intentional Torts

ConsentInsanity!elf)(efense(efense of Property*ecapture of ChattelsNecessity

Negligence

Defenses to Negligence (and Strict Liability)

Contributory Negligence'ssumption of the *is#Comparative Negligence

Traditional Strict Liability Actions

'nimals+ltrahaardous or 'bnormally (angerous 'ctivitiesPrivate NuisancePublic Nuisance

Recoverable Elements of ompensatory and !unitive Damages

" #b$ectives of Tort La%

orrective &ustice- to correct wrongs. The belief that payment of money damages bythe ( to P will ma#e the inured P whole again. "airness for its own sa#e.vs.La% ' Economics ovement- focus on incentives to reduce the costs of accidents

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I Intentional Tort

A *attery (intentional invasions of ot+er,s rig+t of personal

security)

1. The elements:

a. 0oluntary act

b. Intention to cause harm or offensive contact or imminentapprehension thereof

c. Actualharmful or offensive contact directly or indirectly occurs

/. tras:

a. %attery and intentional Torts, in general, are intended to narrow down fact patternsthat have a higher level of culpability than mere carelessness. Negligence will facilitateneeds in that area.

b Intentis the most ambiguous piece. ' person may have the best of motives 2fi abro#en arm, clean their apartment by throwing out water from the fourth floor3 and stillcommit a battery.Intent also transfers. If I intended to hit %ill but missed and hit %ob with a shotgun, thenI have assaulted and battered %ob.

The 4uestion to as# is did the offender #now with substantial certaintythe he would

cause the harm or offense5 2. of this is the 6or#man7s Comp wor# around where theattorney proves that the employer #new with substantial certainty that removing a pieceof safety e4uipment would result in an inury.3 Intent can also be described in terms ofsimple 2meant to intend the contact regardless of what the contact should have beenassumed to produce3, actual 2hardly ever will admit to it though3, or implied 2substantialcertainty3.

*Prof. comments Intent is driven by policy concerns. How we define intent is

determined by circumstances.

c -armcan basically be anything that physically impairs the

body or causes physical pain or illness 2*estatement3 and, even if it is not harmful, it isstill tortuous if it is offensiveor would be offensive to a 8reasonable sense of personaldignity9 2*estatement3. The 4uestion is whether a reasonable person in that situationwould be offended, and this ta#es into account social norms 2e. Customs3 andrelationships 2buddies that slap each other all the time, a prior course of contact3.

d ontact (volitional act)does not necessarily mean person toperson or at that eact moment 2po#es with a pole, sets up a trip wire3. The contact

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re4uirement also includes obects intimately associated with the victim7s body, i.e.pulling coat lapels, yan#ing a boo# out of someone7s hands, hitting them while they7re intheir car, etc. Conse4uences and contact are different, but the offender is liable for theconse4uences of the battery.

. The cases:

a .arrett v Dailey /011 (* page 23 4as+ S)

1. "ive year old boy moves chair and woman attempts to sit and damages her hip.

/. Regardless of t+e sub$ective motivation of t+e offender3 +e or s+e is still liable ift+e actor %as substantially certain t+at t+e action %ould cause +arm or offense .

. tra: The court was concerned with %rian7s age regarding whether a five year oldcould be substantially certain that moving the chair in the first place would result in harm,

not the reasonable man standard. !o are we concerned with the mental state of theoffender in determining intent with regards to substantial certainty5 6hat if theguy was drun#, tired, elderly5 6ould that affect substantial certainty5 'lso, parents canbe held liable for the torts of their #ids: limited liability 2only liable if they themselveswere negligent in failing to supervise the children.

;'dults of diminished capacity have been held liable based on intent as long as they arecapable of formulating in their mind intent.

b 5osburg v !utney

I!!+:

Is the boy liable for causing harm, even though he didn7t do it intentionally5: The court found that the boy was liable, despite his lac# of malicious intent.

*+&: %oth intentionally and unintentionally harmful acts can be penalied under the

law. If you intend to do an unlawful act, it7s a tort.'N'&?!I!:

(efendant contends that he shouldn7t be held liable for #ic#ing the boy because itwasn7t a criminal act.


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this battery when he did not intend to hit the boy he actually hit5 There is also a privilegeto run the boys off the property v. reasonable force applied element to this case.

/. Intent may be transferred in t+e event t+at t+e offender fails to +arm +is targetyet +arms anot+er 7 t+e act is $ust as culpable %+en t+e aim is bad as %+en it is

good

8Intent to commit one of five intentional torts 2battery, assault, false imprisonment,trespass to land, or trespass to chattels3 is sufficient to ma#e out intent for any of theothers.

. tra: Could this have been an assault on the boy he missed and battery on the otherboy5 6hat if !mith had intended only to scare them off his property and not hit eitherboy5 In this case, throwing a stic# to scare the boys is probably reasonable since they areon his property.

In order t+at a contact be offensive3 it must +ave been of a nature t+at %ould offenda reasonable person

A battery can e9ist even if t+e offender did not directly touc+ t+e offended3 as long

as t+e offender clearly invaded t+e person of t+e offended.. tra: This was also li#ely policy, given the year. The scope of employment issuemay have gone either way. This might have also been intentional inflection of emotionaldamages.;The court has held that there are some items so intimate that they are etensions of one7sperson - clothing, a cane, or anything held in the hand.Alcorn v. Mitchell (p. 63) (Offensive Battery))

I!!+: Is spitting on someone a battery.

A*+&: !ure is.

'N'&?!I!: It made it worse that the offense happened in court room. 'lso, defendant was rich, so udge said he7d have no problem paying the B1,. Court said act was purely malignant and deserved to be stiffly punished. Perhaps punishment was stiff to discourage people from fighting something out in

a duel.

:or *attery3 t+ere +as to be intent and actually directly or indirectlyma;e #NTAT 7 can be anyt+ing 7 a po;e

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* Assault (protects t+e victims rig+ts to be free of meaningful t+reats or

un%anted touc+ing)

1. The elements: 2*estatement /nd!ection /13

a. voluntary act

b. Intention to cause harm or offensive contact or imminentapprehension thereof

c. the other or a third person is thereby put in such imminentapprehension

/. tras:'ssault is basically battery without or even before the contact,

although there is not always an assault when there is a battery 2for eample,

#issing someone while they7re sleeping, no imminent apprehension3.

To constitute assault, it will be necessary to determine if areasonable person would consider the contact +armful or offensive. If it would not havebeen either, then the plaintiff will have no claim for the imminent apprehension2perception or anticipation of a blow3.

Imminent Appre+ensionis tric#y - it needs to be able to happen, not necessarily at thatmoment, but 4uic#ly. The *estatement advises: it is not necessary that one shall bewithin stri#ing distance of the other, or that a weapon pointed at the other shall be in acondition for instant discharge. It is enough that one is so close to stri#ing distance that

he can reach the other almost at once, or that he can ma#e the weapon ready for dischargein a very short amount of time. The offended only needs to perceive the reality of thethreat as a reasonable person would 2pulls a very real loo#ing plastic gun eample3.

4ords alone do not usually constituteassault unless they are together with acts orcircumstancesthat would put the other in reasonable apprehension of an imminentharmful or offensive contact with his person 2*estatement3. Circumstances may meansome serious body language or threatening behavior.

onditional T+reatsvary on whether they constitute an assault but, generally, if thecondition is something in the past 2if you hadn7t, I would harm you3 then it7s not assault

because there7s no imminent apprehension, however, if the condition is present, 2yourmoney or your life3 then it is probably assault. 6hat about future5

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:alse Imprisonment

1. The lements:

a. volitional act

b. intent to confine within boundaries

c. actual confinement within the boundaries

d. the person confined must be conscious of confinement oractually harmed

/. tras: confinement is ambiguous and the big one here because oftenthe person thin#s that the confinement in implied while the person who may be implyingit suggests that the other person was free to go at anytime. The shop#eeper7s privilege

comes up a good deal in terms of shop lifting, which often turn the false imprisonment2intentional tort3 case into a case of negligence. If there was no statute, then the commonlaw dictated to that the shop#eeper acted at their own peril and could be sued for falseimprisonment if they guessed wrong. If the person is not conscious of the confinement itdidn7t happen unless that person was actually harmed. Implied threat and not stated canbe a case of false imprisonment.

;!hop#eeper7s privilege has three components:1. *easonable belief person has stolen or is stealing something/. (etention for a reasonable time. (etention in a reasonable manner

. The Cases.

In order for a threatto mean detention3 t+e t+reat must provide a $ust fear of in$ury

to person3 reputation3 or property And t+e s+op;eeper must be reasonable in its

detention (in a reasonable manner for a reasonable time)

;The court said in this case that p+ysical restraint is not t+e only %ayto establishwillful detention.

Bird v. Jones (p. 6) !false imprisonment"

## $n%. &ep. 6'' (.B. #')"'CT!:Pl. could have gone any other way but the way he wanted to go.


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A*+&: The court held that it wasn7t false imprisonment since the man had other options

as to places to go. 'lso, the def. and his men didn7t threaten him or #eep himphysically from leaving.

'N'&?!I!:

The court didn7t want to ma#e false imprisonment so broad as to apply to anybarring of a public right of way, specifically when there are other avenues oftravel open.

'lso, they made it clear that the imprisoner must physically #eep the person fromleaving or threaten the person with harm if they try to leave.

The dissent found that preventing a man from going wherever he wants to is falseimprisonment.

Gust have confinement to have false imprisonment.

*oblyn v. ennedy+s, -nc. (p. 6')6' /.$.d '60 (Mass. #12#)

"'CT!: Coblyn was a F)year)old man who was shopping at $ennedy7s. In order to try on

some clothes, he too# off his scarf and put it in his poc#et.


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%ut, privilege still there, since shoplifting is bad.

Parents, guardians are able to do anything reasonably necessary to discipline children.'lso, can prevent children from damaging property. 2p. F13

D Intentional Infliction of Emotional Distress

1. The lements:

a. volitional act

b. etreme and outrageous conduct

c. intentional or rec#less

d. a causal connection between conduct and the severe

emotional distress

e. actually cause severe emotional distress.

/. tras: 'lso called the tort of 8outrage,9 the courts are very strict aboutgranting damages of II( by itself. %efore this tort was made independent, it was often apart of damages in other cases.E9treme and outrageous conductmeans that 8it %oes beyond all bounds of humandecency.9Intentional or rec;lessconduct means that it has to be intended to cause the stress, aperson would be substantially certain that it would cause it, or a person is rec#less and

disregards that the action will li#ely result in emotional distress. There has to be a way toprove that the distress is severe and was caused by the conduct. Court differs on how todo this, some re4uire physical harm to occur 2vomiting3, some don7t.T+is tort does not re


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suffered severe emotional distress and became violently ill with worry. Theeffects lasted a considerable amount of time past the actual day of the offense.

P*=C(+*: Pl. sued for fraud and deceit, cause of action. Trial ury ruled for pl. and awarded money it cost for the pl.7s friends to fetch a

cab to get her husband. They also granted 1 lira for inuries caused by nervousshoc#.

(ef. claimed that pl. shouldn7t be able to recover for shoc# since at the time itwasn7t actionable. 'ppeals court affirmed trial court7s ruling for pl.

I!!+: Is mental distress actionable5

A*+&: The court holds that the def,7s actions were full of malice, and that he intended to

cause distress, though perhaps not at the resulting level. This, of course, is noecuse. Pl. can recover for emotional distress though court notes that it is setting aprecedent by doing so.

'N'&?!I!: Court wanted to ma#e clear that intentionally imposing emotional distress is a

tort. Court awarded damages for mental distress, but don7t call it that - allow damages

as 8parasitic9 on fraud and deceit charge.

*estatement gives some rigorous re4uirements for emotional distress. (on7t want toobroad cause of action.

Potts v.


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E Trespass to Land

1. The elements:

a. 0olitional

b. Intent to perform the act that results in trespassing

c. nter the land of another person.

/. tras: 8=ne who intentionally enters land in the possession of anotherhas committed the tort of trespass to land. ven one who mista#enly steps on another7sproperty, believing it to be his own, commits the tort.9 %utJnot when they didn7t have achoice in the matter such as losing control of the vehicle and ending up in the front yard.' possessor of real property has a right to eclusive possession. No damage is re


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: Trespass to +attels

1. The lements:

a. 0olitional 'ct

b. Intention to perform the act that constitutes the trespass

c. dispossessing someone of personal property or intermeddlingwith or using the property.

/. tra: Trespass to Chattels deals with intentional interferences with the personalproperty of others. It7s the lighter version of conversion.

The plaintiff may only recover the amount of harm done to the chattel in adispossession case 2including rental fees or whatnot if the plaintiff suffered in itsabsence3.

In an intermeddling case: No harm, no money. ample was ta#ing a boo# for anhour and spilling coffee on it, defendant should pay for the coffee spill. If sheta#es the boo# for an hour, it may be conversion and the M should pay the entirevalue. Transferred intent doctrine applies.

. Cases:a ompuserve Inc v yber !romotions

1. Cyber promotions made a business of spamming compuserve7s emailaccount holders and was persistent despite a re4uest to discontinue and technologicalattempts to thwart the spam. Compuserve sued for trespass to chattels./. Electronic signals may constitute p+ysical contact in regards to trespass to

c+attels> under t+e Second Restatement3 recovery may be possible for intermeddlingif t+e proper criteria is met

8The court also assigns liability under the !econd *estatement because that chattel was8impaired as to its condition, 8uality or values.9

-ntel *orp. v. 9amidi (p.#3)2# :.3d 16 (*al. 003)"'CT!:


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'ppeals court holds that electronic communication doesn7t constitute an actualtrespass to personal property.


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. the actor7s good fait+

@. the e9tent and durationof the resulting interferencewith the other7s right of control.

D. the +arm doneto the chattel.

E. t+e inconvenience and e9pensecaused to the other.

. Cases: insert from cb 1)Damples: 13 If ' intentionally destroys %7s chattel, ' is liable for conversion./3 If ' intentionally caused minor damage to %7s chattel, ' is not liable for conversionbut would be liable for trespass to chattel.3 If ' attempts to steal %7s chattel, but is caught within minutes, ' is liable forconversion because of the weight placed on '7s bad faith.

@3 Purchasing stolen property even if purchaser is acting in good faith constitutesconversion by both the seller and the innocent buyer.


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II !rivileges= Defenses

A onsent

1. The Concept: consent means what it soundsL if the defendant can prove that theplaintiff consented either verbally, by a manifestation of actions, or another way, then thisis an affirmative defense.E9ceptionsincluding: if procured by fraud,if the act goes beyond the scope of consentLthe person is consenting under a state of duressLthe defendant presents a mista#e of fact or of lawLconsent is not informed 2thin# medical here3Llac# of capacity to consent 2infant, drun#, etc.3, and2differs by court but maority agrees3 if the consent is to a criminal act.Professor comment: If it7s an element of the case 2no consent3 then the burden is on the

O, if it7s an affirmative defense, the burden is on the M. Is there some ambiguity here5 T

/. The Professor7s ta#e: there are two types of consent: valid consentandinformed consent. ' cause of action surrounding a legit valid consent 2a battery causeof action3 is rare, while informed consent often does not do well but is more common.Informed consent often applies to the medical profession and can be either a battery ornegligence 2more common3 cause of action. %attery is easier to prove because there is noneed for an epert testimony.

1. .eneral Rule: Consent is a defense to intentional tort liability. If thevictim gives permission, the conduct that would be tortious is

privileged. Consent is subective. ;iolenti non fit in


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2/3 A!!ARENT #NSENT: If words or conduct arereasonably understood by another to be intended as consent, theyconstitute apparent consent and are as effective as consent in fact.

#,*rien v unard Steams+ip o (Apparent

onsent):ATS: 6oman stood in line to be inoculated, held up arm.(idn7t want to be inoculated.RLE: If plaintiff7s behavior is such that it indicates consent,regardless of her actual feelings, defendant cannot be held liablefor battery.

D. ImpliedBInB:act onsent: ' continuing, informal pattern ofinterpersonal behavior may constitute implied)in)fact consent among thoseinvolved, for the behavior to continue. Consent tacitly given by oneindividual to another based on their shared history is implied)in)factconsent. 2patterns of practical o#es may imply consent to continue withthe o#es or tenant #nowing that cars par#ed in front of apartment compleget towed implied consent for hers to be towed if par#ed there3

E. ImpliedBInBLa% onsent: !ome categories of conduct allow thecourts to attach consent as a matter of law. These may includeparticipating in professional football. Consent is also implied as a matterof law in emergency situations.

2 Invalidation of onsent6

213 Incapacity: Children generally do not have the capacity

to give consent. 'n individual without sufficient mental capacitydue to insanity or retardation may not legally consent. Incapacitycan also be invalidated due to drugAalcohol intoication.

2/3 Action *eyond Scope of onsent: Consent isinvalidated if it goes beyond the consent manifested.

-ac;bart v incinnati *engals3 Inc:ATS: Pro football player hit after the play was over. !uedfor battery.RLE: %y participating in the game, the player has not

implied consent to tortious activity beyond the scope of thegame and outside the rules which results in inury.

o+r v 4illiams

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Patient was anesthetied and the doctor decided that the leftear was more important to operate on than the right ear.Patient sued for battery and won.

I!!+: Is it assault and battery if the pl. consented to the operation on the other ear5 Can

consent be implied to the left ear5A*+&: Consent cannot be implied, and assault and battery can be claimed in this

instance. (ef. touched pl. in such a way that was wrongful or unlawful, eventhough he did so with no evil intent.

'N'&?!I!: Court found that consent must be epressly given and cannot be implied in places

where it wasn7t epressly given. Cennedy v !arrot reverses t+is decision (N /01) No %ay to ;no% if

t+ere,s an e9tra problem until surgery (encourages doctor to loo; around

and see if t+ere are any problems +e or s+e can fi9) Also3 consent forms

Cennedy v !arrott:ATS: (uring appendi operation, surgeon sees ovarian cysts, bursts them, causeswoman to contract phlebitis.RLE: 6here an internal operation is indicated, a surgeon may lawfully perform and itis his duty to perform such operation as good surgery demands, even if it means anetension of the operation further than was originally contemplated, and for doing so heis not held liable for damages for an unlawful operation.

23 :raud: Consent is invalidated if it is induced by fraudthat misrepresents an essential aspect of the interaction.

De ay v Roberts:ATS: (r. brought stranger into patients home.


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minority view and the *estatement Q E, E1 hold that a person canconsent to criminal acts for purposes of tort liability.

2E3 Informed onsent6failure to tell the patient about the

ris#s and alternatives to the procedure and the nature of the

procedure. This is only a negligence cause of action. This involveshaving a duty, a breach of the duty, causation, and damages. '

patientRs #nowing choice about a medical treatment or procedure,

made after a physician or other healthcare provider discloses

whatever information a reasonably prudent provider in the medical

community would give to a patient regarding the ris#s involved in

the proposed treatment or procedure.

Consent does not transfer even to other doctors or

surgeons. If one consents for one person to perform theprocedure and then another performs it, valid consent isnot present and is a cause for battery

lements:

i. (uty

ii. %reach of (uty:2a3 !rudent !atient Standard: 6hether a

reasonable patients would want to be informed of these ris#s. 2=%KCTI03 This is theminority view.

2b3 !rofessional Standard: 6hether it is thestandardAcustom of the profession to tell of these ris#s. This is the maority view.

iii. Causation2a3 ounterfactual ausation: would have

chosen no treatment or a different course of treatment had the alternatives and materialris#s of each been made #nown to him 2P7s words only3.

2b3 Actual ausation: ' causal connectionbetween the patient7s inury and the doctor7s breach of a duty to disclose eists onlywhen the disclosure of material ris#s would have resulted in a decision against it 2re4uiresepert testimony3. If the patient 2a reasonable person3 would have chosen to go aheadwith the treatment had he been informed of the ris#s, the element of causation is missing.

iv. (amages) The ris# must have materialied and must have been inured as a result of the treatment.

Scott v *radford:ATS: says that doctor did not properly inform her of the ris#s of the operation.

RLE: In a medical malpractice action a patient suingunder the theory of informed consent must allege and prove

213 physician failed to inform him ade4uately ofthe ris#s

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2/3 if patient had been informed he would nothave had the surgery23 the adverse conse4uences that were notmade #nown did in fact occur and patient wasinured as a result of submitting to treatment.

The scope of a physician7s communications must bemeasured by his patient7s need to #now enough to enablehim to ma#e an intelligent choice. "ull disclosure of allmaterial ris#s incident to treatment must be made. ' ris# ismaterial if it would be li#ely to affect a patient7s decision.

Negligence has two causation factors: actual causation, a #nown or should have been#nown ris# of the procedure materialied and the patient was not informed of that ris#and counterfactual causation focuses on something that didn7t happen, what the patientwould have done if he had #nown the ris# 2some courts use the plaintiff7s own subective

standard but the maority use the reasonable man standard3. ' form does not always flywith consent, duress negates consent, but not economic duress, lac# of capacity alsovitiates consent. Professor brought up hypothetical 4uestions where #ids fight 2can theyconsent, what about mature minor doctrine3, consenting in illegal situations, seualintercourse 2*ule of F Scan7t consent, F)1@ Spresumed can7t, 1@)1F Spresumed canconsent3.

/3 if he had been informed of the ris#s, he would not haveconsented to the treatmentL

3 the adverse conse4uences that were not made #nown didin fact occur and he was inured as a result of submitting to

the treatment.

i. ceptions include: aniety 2the patient would have been far too upset and refused thetreatment and suffered as a result3, emergency 2applies to both valid consent andinformed consent, maybe the patient is drun#, unconscious, a #id, etc.3, and common#nowledge 2patient should #now this anyhow.

* Self Defense

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1. The Concept: !elf (efense is an affirmative defense to an intentionaltortL the focus seems to be the reasonableness and proportion of the force used.

/. The Professor7s notes:


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@. The Cases:

a ourvoisier v Raymond3 /@0

1. >uy thin#s he7s shooting someone who was possibly a threat to his life but ends up

shooting a cop, and he7s sued for battery./. T+e self defense3 defense reuy ties up a shotgun to a door in his abandoned house and a trespasser is shot./. #ne may use reasonable force in t+e protection of +is property but one may not

use suc+ means of force as %ill ta;e +uman life or inflict great bodily in$ury

Bird v. 9olbroo4 (p. 0)#30 $n%. &ep. 1## (*.:. #')"'CT!:

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Pl. is a 1)year)old who was as#ed by a maid to go into another man7s garden inthe afternoon to retrieve a fowl that had escaped.


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to ta#e the money. The boss got pissed that pl. poc#eted the money and he and hisson tried to forcibly ta#e it from him.

P*=C(+*: Kury filed for plaintiff in lawsuit, def. petitioned for new trial on eceptions to the

rulings and refusals to rule of presiding udge.

I!!+: Can someone use force to reta#e a chattel that was peaceably given5

A*+&: The court ruled that someone cannot ta#e a chattel that was peaceably given by

forceL breaching the peace is unacceptable in this instance.'N'&?!I!:

Court finds that pl. didn7t tric# them out of the money or steal it, and he thought itwas rightfully his, especially after see#ing counsel about it.

%asically, it7s not =$ to hurt someone to ta#e something bac# from them that waspeaceably given.

Important to note that this idea carries over into landlord disputes. &andlords

cannot violently evict tenants, even if they haven7t paid. Gust go through peacefulcourt channels to settle dispute.

The self)help remedy of recapture is allowed when one person wrongfullyobtained possession of the chattel either by force, fraud, or without claim of right.

'ny privilege of recapture must be eercised promptly - the so)called hot pursuitre4uirement - or else it will be lost.

' chattel can be recovered peacefully, no disturbance of public peace, do notharm, touch person. 2*epo rules3 No udicial proceeding necessary to do so.

E Necessity/. The Cases:a 5incent v La;e Erie Transportation

1. ' boat was tied off to a wharf in the middle of a transaction when a terrible storm hit.The boat was deliberately #ept on the wharf and prevented from drifting, resulting indamage to the wharf./. 4+en t+e defendant +as a c+oice to avoid damaging anot+er,s property and notand +e c+ooses to damage t+e property3 +e may be liable for damages3 even if t+e

c+oice +e ma;es is out of necessity and reasonable under t+e circumstances .

;The courts have held that it is contrary both to the principal of law and morality toprivilege one person to harm another7s property so as to merely safeguard his ownpossessions. P=&IC?UUUU;The courts have generally not held liable the destruction of property to save a life orlives.:loof v. :utnam (p. 1, necessity)2# A. #'' (;t. #10')"'CT!:

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Pl., his wife, and two minor children were sailing on &a#e Champlain in a sloopwhen a storm came up. "or safety, the pl. moored his boat to the def.7s doc# on anisland the def. owned in the la#e. The def.7s agent, a servant, then went andunmoored the ship, causing the ship to be destroyed and its occupants thrown intothe water and onto the shore )) inuries.

I!!+: 6as pl. ustified in trespassing in order to save his life, those of his family and his

property5A*+&:

The court cites multiple cases that say yes, one can trespass on another7s land tosave property, and most especially, human life.

'N'&?!I!: Court wants to uphold the fact that human life is more important than property

rights. If trespassing is necessary to save lives, so be it. 'lso, if someonetrespasses to save property, as long as they do no harm, that7s o# too.

ception to general rule that someone must have permission to go on another7s

property. Pl. could have used force to moor to doc# in order to save lives, property. (ef.

didn7t have to help.

.eneral average contribution- whenever property has to be thrown overboard,everyone on ship has to ma#e up for the loss.

;incent v. @a4e $rie ransportation *o. (p. #)# /.. # (Minn. #1#0)"'CT!:

The *eynolds was moored at a wharf in the harbor of (uluth unloading its cargo

at about 1 p.m. Nov. /F, 1D. 'n etra severe storm rolled up shortly after allthe cargo was offloaded, so the crew moored the boat to the doc# in order to #eepit from drifting away. The storm was too severe for it to go anywhere else, so thecaptain decided to weather the storm tied to the doc#, where it did BD indamage.

P*=C(+*: Pl. claims leaving the ship moored to his doc# was negligent, and that the captain

should have moved the ship elsewhere. (ef. claims that because mooring to thedoc# was a necessity, he shouldn7t have to pay pl.

Trial court finds for pl. =rder affirmed.I!!+:

(oes trespasser, who trespasses out of necessity, have to pay up if they damagethe person7s land5

A*+&: The court held that if someone trespasses out of necessity and damages a person7s

land, then they should have to pay up. Can7t preserve one7s own property to thedetriment of someone else7s.

'N'&?!I!:

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Kudge is basing the entire ruling on the deranged woman7s intent to harm.


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Professor Comment: C/obody really, in trial court, uses this learned hand formula. -n aproducts case, you+re %oin% to be determinin% if there+s a reasonable alternative desi%n.hat opens up the ar%uments as to what+s reasonable as far as the burden.>

Poverty is not usually considerable in determining whether someone is negligent 2i.e.

they tried to ta#e reasonable precautions but couldn7t afford it, etc.3.

/.


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C. The >eneral !tandard of Care: Negligence 2*is#A+tility3 %alancing

/ LubitF v 4ells

a. "ather leaves golf club in bac# yard and boy, in his bac#swing,

hits another boy with it. The 4uestion is whether the father could be held negligent forleaving the club in the bac#yard.

b. T+e la% re


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a. ' less than intelligent guy built a chimney in a hay)ric#thin#ing he would reduce the li#elihood of a fire, even though is significantly increasedit. veryone told him that he would be doing this, so the 4uestion becomes was henegligent when he truly believed that he was doing a good thing in spite of what otherpeople #new to be true5

b. An offender,s actions must be $udged in lig+t of %+at areasonably prudent person %ould do under t+e circumstances #b$ective standard

for mental capacity

" Delair v cAdoo /0G

a. The plaintiff was passing the defendant in his vehicle and thedefendant7s tire blew out resulting in damage to the plaintiff7s vehicle. Professor raised alot of discussion over this case with 4uestions li#e, 8'm I supposed to chec# all of my carparts every time I get into the car5 6hat if something happens when I7m going down the

road5 Is this a strict liability standard here59

b. 8T+e la% re


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thing here. Is there a privilege to use force against these people on the sidewal#5 +o%ever3 it is still apart of t+e Hreasonableness under t+e circumstances standard for negligence3 and

it is for t+e $ury to decide %+at customs and actions are reasonable

8The court rules that when a customary practice is couple with a showing that it wasignored and that this departure was a proimate cause of the accident it may serve toestablish liability.

;The court also established in the TK


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challenged person to recover.9 !oJsome courts have this subective standard withregards to a mentally challenged plaintiff and contributory negligence.

F. *eligious %eliefs and Negligence: The hot topic is whether adefendant should have to pay for the etra damages that result when a plaintiff does not

get ade4uate treatment do to religious beliefs. Professor mentioned Eggs+ell S;ullDoctrine- if the inuries are ten times worse ust because someone has a s#ull as soft asan egg shell, oh wellJthe defendant is payingL no obective standard for what #ind ofdamage would be li#ely, only subective what #ind of damage occurred. Professor thin#sthat this doctrine has something in common with religious beliefs in regards toeacerbating damages.

H. Children and Negligence:

a Stevens v 5eenstra

i. ' 1@)year)old #id was driving a car and lost control,resulting in damage to the plaintiff7s vehicle. The issue was whether he should be udgedas a reasonable prudent man or 8child.9

ii. 4+en underta;ing adult activities3 minors may be+eld to t+e same reasonable standard as adults

8The court also reasons that, after considering the accidents that adults are involved inwhile driving, it is illogical to thin# that the danger lessens when they activity isunderta#en by a minor with little or no eperience.

iii. Professor raises 4uestions li#e, 8what is an adultactivity5 !houldn7t people see this #id coming in a driver7s ed vehicle59

b. *estatement Third or Torts: &iability for Physical


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229A. Undertaking Profession or Trade#nless he represents that he has greater or less s!ill or !nowledge, one who

underta!es to render services in the practice of a profession or trade is re$uired toexercise the s!ill and !nowledge normally possessed by members of that profession

or trade in good standing in similar circumstances"

a *oyce v *ro%n3 /0G@

i. =ne (octor put a screw in a woman7s an#le and anotherdoctor too# it out later, eplaining that the damage she suffered resulted from the screw,medical malpractice.

ii. ertain .eneral Rules for alpractice Laid #ut6

13 ' doctor should possess the s#ill of the averagephysician in that profession and use that s#ill.

*ule 1. is really no good anymore, because average means that half of the group

is dangerous/3


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1. *is#A+tility %alancing to set the !tandard of Care 2(oesn7t happenmuch3

a -elling v arey3 4as+ /02K

i. The plaintiff7s eye doctors did not administer an eyepressure test, and she developed glaucoma and practically went blind. pert testimonyrevealed that the standard of medical care was to N=T conduct the test. The court madeup it7s own rules.

ii.Ad+ering to professional standards does not insulatet+e defendant from liability if a deviation from t+ose standards %ould be

reasonable

iii. Professor went to some effort to demonstrate howwrong the court was here, even regarding the facts of the case. cerpt: 8This case

scared fol#s because now they would #now what the standard was until the court toldthem so. Not only was the standard not binding, but the court would decide for itself andwouldn7t need eperts. !ome say that this decision caused the malpractice crises of themid 1Fs.9 No court really followed this articulation of the court7s own standard ofcare. Professor also raised argument for the court7s actions in stepping in:customsAstandards might lag behind in certain areas, customs are different by locationsand need to be uniform. 8&et7s distinguish between resources and techni4ue, we canepect techni4ue to be the same even though resources will not be.9 Professor states thatthe court didn7t #now what it was doing and ust basically sympathied with the younggirl. ;;;Not a good case for precedent.

/. Courts Interpretation of !tatutes and/e%li%ence :er 7eE If the statuteor regulation mentions civil liability, it is not negligence per seJthe court has a choice asto whether it should implement the legislature7s standard. 6e need to determine whattype of +armthe statute or regulation is trying to prevent and what class of peopleit istrying to protect to determine if it is relevant. 6e also need to determine if it is setting astandard of care. There is also a recognition that there is an 8ecused9 violation ofcertain statutes. 'rguments abound under licensing re4uirements, ecuses, type ofharmAclass of people, and causal lin# between the violation and the damages. Courts willtypically hold that a lac# of a license doesn7t violate negligence per se.

"rom Professor: Two positions for reasonable care standard:

1. *easonable prudent position/. Customs

%estatement, Third, of Torts& 'iability for hysical arm 14. Statutory Violations as egligen!e Per Se

An actor is negligent if, without excuse, the actor violates a statute that is designedto protect against the type of accident the actors conduct causes, and if the accident

victim is within the class of persons the statute is designed to protect"


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Professor7s 3

. Negligence per se - the violation of a statute is negligence 28in, of and by itself>3

b Re


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(d) to protect a class of persons other than the one whose interests are invaded, or

(e) to protect another interest than the one invaded, or

(f) to protect against other harm than that which has resulted, or(g) to protect against any other ha+ards than that from which the harm has resulted"

c Stac+nie%icF v arBam orp

i. Plaintiff was involved in a bar room brawl and sufferedamnesia.


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Prof comment: If you invo#e this, it can get to the ury if there is no specific evidence ofwhat happened. !ome urisdictions say this a presumption, some say inference, some saydisappears altogetherL lement 2b3 has been dropped in most urisdictions because itreally isn7t fair, specifically regarding products liability cases. There can be too muchevidence to invo#e res ipsa. Gedical malpractice provides a bit of a different approach

because an epert is needed to testify when negligence may be inferred.

. The Cases:

a Eaton v Eaton3 N& /00M

i. "ather sues his daughter for the wrongful death of hiswife. (aughter crashed a car and there is no evidence that anything other than daughter7snegligence could have caused the accident 2car flew off a cliff3

ii. Court sets forth elements of res ipsa here.

b barra v Spangard3 al /0KK

i. ' guy goes under the #nife and wa#es up with a pain in anon)related site that gets worse over time. Plaintiff cannot prove who did it, when, oreven how, but invo#es res ipsa. veryone is pretty much sued.

ii. Prof thin#s this is the way of smo#ing out the guiltyparty, 8we #now somebody #nows.9 ourts may +ave t+e go a+ead to let a plaintiffHsue em all and let t+e $ury find at least one of t+em t+at is most responsible

c Sullivan v rabtree3 Tenn t App /01G

i. ' truc# driver let !ullivan ride with him and ended upgetting into an uneplainable wrec# which caused !ullivan7s death.

ii. There are degrees to which res ipsa may be invo#edLsome warrant an inference of negligence that the ury may decide, another may re4uire apresumption of negligence if the defendant does not provide sufficient evidence to rebut,and the other is a complete shift of the burden of proof to the defendant and re4uires thathe proof beyond a preponderance of the evidence that he was not negligent.

I5 Actual ausation

'. 8%ut "or9 or substantial contribution 2useful for indivisible harm3 causation:(id the defendant7s negligence actually cause the plaintiff7s harm5

E


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1. The Cases:

a !er;ins v Te9as

i. Train is going faster than the speed limit and hits the

truc#. It is argued that if the train had not been negligently speeding, then the harmwould not have occurred. ngineer testifies, however, that it would have occurred.

ii. 4+en t+e plaintiff,s +arm %ould +ave occurred evenif t+e defendant +ad not acted negligently3 t+en t+e defendant,s negligence did not

legally cause t+e plaintiff,s +arm

b :ord v Trident :is+eries o

i. >uy was thrown overboard and no one heard or sawthe accident. 6hen the crew members realied that

he disappeared, they attempted to rescue him.6hen the crew finally realied he was gone, therewas a rescue attempt.

ii. Court said no negligence because there was nocausal connection.

c Lyons v idnig+t Sun

i. 'nother speeding car wrec# case. If the truc# weren7tspeeding, would the harm have occurred.

dReynolds v Te9as !acific Ry

i. &arge woman fell down stairs when she was hurried bythe railroad company into a stairwell that had no rail and was not lit. (efendant arguesthat, even if the company were negligent for not lighting the stair, plaintiff might havefallen anywayJthe failure to light the stairs was not a cause of the harm

iii 4+ere t+e negligence of t+e defendant greatly

multiplies t+e c+ances of accident to its

occurrence3 t+e mere possibility t+at it mig+t

+ave +appened %it+out t+e negligence is not

sufficient to brea; t+e c+ain of cause and effect

bet%een t+e negligence and t+e in$ury

/. 86hat 6ould


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ii. Not obvious but defendant was aware of the ris# - noduty to warn

iii. Not obvious and no warning label - may be a burden of

proof shift under the 8+eeding presumption,9 that the O is given credit for heeding awarning if it had been presentedL defendant then has to prove the O would not haveheeded the warning.

%. !pecial Problems of Proof - the Vuality of the vidence

1. Professor7s ta#e is that there are a ton of problems out there 2birthdefects, cancer, etc.3 that have some causal association with some things and not withothers. 1 in D people who smo#e for over twenty years get lung cancerJthis guy has itand is suing. 1 in D of the people who get lung cancer got it because they smo#ed.


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ii. Loss of c+ance3 even if t+e defendant did not +ave greater t+an a 1M c+ance ofsurvival may be c+aracteriFed as an in$ury for %+ic+ t+e plaintiff can recover

8The court says that once a plaintiff has demonstrated that the defendant7s acts oromissions have increased the ris# of harm to another such evidence furnishes a basis for

the ury to ma#e a determination as to whether that increased ris# was substantial inbringing about harm.

iii. The minority of courts refuse to allow recovery for lossof chance unless the plaintiff can establish causation under the traditional negligencestandard. The maority allow &=C claims to reach the ury even when the plaintiffcannot prove the defendant was, more li#ely than not, the cause of the plaintiff7s harm.

v. Prof. comment, Cyou now may be able to recover forless than 0H and the ar%ument is that it+s unfair, why should they recover the entireamountIbut then, if you %ive only a percenta%e, why should you have to pay all if it+s

#H>

%. 6hen Two 2or more3 Negligent 'ctors Concurrently 2or successively3 Causethe Plaintiff7s


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i. The owner of a tractor truc# on a stormy night left itpar#ed without lights in the middle of a road where the car in which plaintiff was apassenger collided with it from the rear, but the plaintiff had enough room to see the carand avoid it. ;;;Gar#s the beginning of the phenomenon of indivisible harm.

ii. 6hat if the street lights were off in the hill fact patternand the city was negligent, would the city also be responsible5 Then we7d have threeoint tortfeasers. 6hat if the car lights were off due to the negligence of the mechanicand the lights contributed to the accident5 6ould that be four oint tortfeasers5 Is thereany arbitrary limit on how many oint torfeasors you can have5 No, you can have lots ofoint tortfeasers.

b Cingston v +icago

i. Plaintiff7s property was destroyed by a large fire that wasthe product of two smaller fires that combined north of plaintiff7s property. The

defendant, a railroad company, initiated a fire by spar#s to the northeast of the plaintiff7sproperty. The fire in the northwest was of un#nown origin.

ii. 4+en you can,t divvy up t+e damages because it,simpossible3 everybody t+at contributed to it is responsible for all of t+e damages

The court does allude to a possible eception if the other tortfeasor had been mothernature. - if the other perpetrator was mother nature than the fire might have happenedanyway, therefore no liability.

c Summers v Tice

i. !ummers and the two defendants were bird huntingtogether when defendants shot at a 4uail that flew in between !ummers and themselves.!ummers was struc# in the eye and the upper lip.

ii In some circumstances3 %+en plaintiff cannot prove

%+ic+ defendant caused t+e in$ury3 t+e plaintiff may $oin defendants 7 even %it+out

a concert of action 7 and let t+em use t+eir Hsuperior ;no%ledge to apportion

damage

8The basis for a decision li#e this is that the court does not want to send a person who hasbeen inured under no fault of their own empty handed. P=&IC?UUUUU

iii. ?es, we should still hold them both liable even thoughone of them is completely innocent. Prof. gives hypo: guy shoots person in one eye andother guy shoots in other eye, is there an indivisible inury5 Possibly, blindness might bethe whole inuryJdepends on how you characterie the inury.

d Sindell v Abbott Laboratories

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i. The plaintiff is the child of a women who too# (!, adrug intended to assist in the prevention of miscarriages. The plaintiff claimed to havedeveloped a bladder tumor as a result of the drug and sued D out of / manufacturers.

;In addition to concert of action, the plaintiff relies on two theories for her case:

1. alternative liability - when two or more defendants that inflicted harm and the plaintiffcannot prove which inflicted it, the burden or proof may shift to each defendant to provehe was not the one that inflicted the harm./. enterprise liability - an entire industry can be held liable for a product7s shortcomingsif the entire industry uses the same product, utiliing the same tests and strategies formar#eting of that product.

ii. ar;et S+are Liability T+eory) If the O can7t provewho manufactured the (!, the defendants may be responsible for their mar#et share atthe time. The idea is that it will all even out over the long run. =ver time, everymanufacturer will end up paying their fair share. his has applied to 5$7 and prettymuch nothin% else.

5 !ro9imate ause B *rea;fast &urisprudence

'. Proimate cause, also #nown as legal cause, is mainly a 4uestion of policy.'lthough each can reach the same conclusion, there are generally two approaches by thecourts:

1. (irect Cause: loo#s bac#ward and determines if there are interveningfactors that should cut off responsibility. Popular in 4uestions of ggshell !#ull *uletheories, because it really isn7t foreseeable that the plaintiff has an eggshell s#ull.

/. "orseeability 2also called the ris# rule3: loo#s forward at what wasforeseeable at the time of the activity. !omething ust needs to be generally foreseeable,not specifically, unless the court is loo4in% for a way to find no proGimate cause that is.

;;;;;In Nelson7s opinion this is always a policy 4uestionU

>enerally, negligence that causes a delay to someone is not sufficient for recovery, mustbe personal inury. +nforseeable plaintiff is also a snay cop out when needed.

%. The


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) The cases distinguish unforeseeable conse4uences of a negligent act fromconse4uences that are foreseeable but ta#e place in an unusual way.

C. The Cases:

/ ars+all v Nugent

a. =il truc# ran a guy off the road in icy conditions. The guy washit by another vehicle when he was wal#ing up a hill to warn oncoming traffic about theoil truc#7s presence in the middle of the road. Is the oil truc# the proimate cause of theguy7s inuries5

b. Proimate cause is a fleible doctrine. As a general rule3 if t+edefendant causes a delay3 %+ic+ results in a plaintiff,s in$ury3 t+e defendant is not

liable 'lso,if you negligently in$ure someone and t+e person is +urt on t+e %ay tot+e +ospital3 in t+e +ospital3 etc t+e defendant is liable for t+e damages

;The court comments that foreseeablity is what determines if a situation is ongoing, suchas the negligence of the truc# resulting in net accident, and a situation where everythingis stabilied and returned to normal.

c. 6hat if other drivers got out and tried to help5 If they were,they wouldn7t be able to recover. 6hat if a burglar umped out of the bushes and shotGarshall5 6hat if you are in the vicinity of a prison and then there7s a sign up warningyou about this5 (oes that ma#e it more foreseeable5 6hat if an incoming vehicleswerves to avoid the vehicle, flies off a cliff, and lands on a school 2it is filled witheplosive material3 blows up and destroys school. Is there proimate cause here5

" ca+il v Ne% or;

a. !#ipped in class, support the 8ta;e your plaintiff as you find+im,9 eggshell s#ull theory with regards to what can properly be foreseen.

. In re !olemis and :urness3 4it+y and o. - (irect Cause 'pproach

a. 's#s the 4uestion, should the eggshell s#ull theory apply toproperty5 (ropping a plan# on accident caused a spar# which blew up the entire ship.The defendant could not have anticipated that dropping the plan# would have caused an

eplosion.b. As long as t+e +arm is directly traceable to t+e defendant,s

negligent act (meaning no intervening cause)3 t+e plaintiff may recover so long as it

is foreseeable by a reasonable person t+at t+e act could cause S#E damage3 no

need to foresee %+at ;ind or to %+at e9tent

K 4agon ound O/, brought by the wharf owners

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a. (efendants owned a ship that spilt a type of oil into the oceanthat was supposed to be basically non)flammable. The wharfrepair crew was using acetylene torches and a spar# hit thewater, ignited the oil, and blew up the wharfL the plaintiff7s

don7t want a forseeability approach because theyb. should have foreseen it also and would be contributorilynegligent.

;The a%on Moundcase in essence overrules:olemis, stating that there must beforeseeability that the defendant7s action would cause damage.

1 4agon ound O", brought by the ship owners at the wharf

a. The court can use utility to s4uirmJthey use a cric#et case asprecedent and classify the activity as playing cric#etL in the wagon mound case they

classify the activity as spilling oil 2why not transporting oil, there7s plenty of utility inthatU53. +nder this logic, the cric#et activity should have been classified as hittingsomeone with a baseball.

b. "orseeability approach is popular for mas#ing another agenda,very malleable. If the court doesn7t want to find a defendant liable, they get very specific2couldn7t foresee blowing up the ship with a spar#3 and if they do, they are very general2could have foreseen some harm, doesn7t matter what #ind or to what etent3.

!alsgraf v Long Island RR

a. *.*. wor#er helped push a guy up on a train when he was tryingto ump on while it was moving and, as a result, he dropped a pac#age containingfirewor#s that managed to cause some damage and #noc# over scales that inured thewoman. The suit was trying to hold the railroad wor#er liable.

b. T+e court +olds t+at !alsgraf is an unforeseeable plaintiff3and t+at t+e RR breac+ed no duty it o%ed to +er

c. 2(issent3 factors of proimate cause:

must be, at the least, something without which the event would not happen

there was a natural and continuous se


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Is the effect of cause on result not too attentuated5

Is t+e cause li;ely, in the usual udgment of man#ind, to produce the result5

=r, by the eercise of prudent foresight, could t+e result be foreseen5

Is the result too remote from the cause ) for the greater the distance either in timeor space, the more surely do other causes intervene to affect the result

;:rof. *omment- 8The concept of foreseeablity is more of a tool to shape a decision thecourt has already or see#s to ma#e.9

(. !uperceding Causes

/ Derdarian v :eli9 ontracting orp

i. Construction wor#er was hit by an epileptic guy while he waswor#ing ust off the side of the road. The contractors didn7t have a proper barrier inplace so the 4uestion become whether the contractor7s negligence was the proimatecause of the plaintiff7s inury.

ii. An intervening act may not serve as a superseding cause3and relieve an actor of responsibility3 %+ere t+e ris; of t+e intervening act occurring

is t+e very same ris; t+at renders t+e actor negligent

" 4atson v Centuc;y ' Indiana *ridge ' RR

i. The defendant allowed gasoline to escape from a railroad tan#

car and flow into the streets, filing gutters and standing in pools. The plaintiff wasinured when a third party threw a match into a pool of the spilled gasoline and iteploded. Plaintiff claimed the defendant is liable for negligently spilling the gasolineregardless of the actions by the third party.

ii. Court is saying that it,s unforeseeable as a matter of la% t+ata t+ird party %ill commit a criminal act

G :uller v !reis

i. (r. was hit in an accident and suffered no apparent inury at the

time, but later decided to #ill himself.

ii. Suicide is not a superceding cause as a matter of la%L it doesnot bar recovery for loss of life. There is an argument that it may be contributorynegligence.

K 4agner v International Rail%ay

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i. Plaintiff fell from a bridge loo#ing for his brother who wasnegligently thrown from the railroad.

ii. T+e rescue doctrine 7 defendant o%es a duty to t+e rescuerLIf t+e rescue is not %anton=rec;less3 t+en t+e defendant is liable (even t+ird

party) =ne eception has been held that there is no liability if the rescuer has notdeterred anyone else from rescuing. 'lso, the rescuer must be attempting to actuallyrescue.

;The defendant need not foresee that a rescuer would come.

iii. "rom the Cardoo perspective, this is carving out an eceptionto his unforeseeable plaintiff doctrine, that rescuers are still allowed to recover.

. 8Playing the (uty Card9

/ -amilton v *eretta SA orp.

i. ' huge class action from victims of hand guns againstmanufacturers for negligence.

ii. 's a general rule, a defendant is not liable for criminal acts of athird partyL Special relations+ip e9ception: there is a relationship either between M andthird person tortfeasor that encompasses defendant7s actual control of the third person7sactions, or between defendant and plaintiff that re4uires defendant to protect plaintiffform the conduct of others. 2defendant controls a t+ird party or o%es a duty to protectplaintiff3.

5I Limited Duty Rules

'. &imitations under the (uty to *escue:1. >eneral Principles: +nder common law there is no duty to rescue but

there are some eceptions: special relationships running between a common carrier andits passengers, a school and its students, and an employer and its inured employee. 'lso,once someone has begun a rescue, they have a duty to go about it in a reasonable manner."urther, if you innocently or negligently create the ris#, you are under a duty of care toprevent the ris# from ta#ing effect.

/. The Cases:

a ania v *igan

i. ' guys basically gets dared into umping /ft into a poolof water and drowns. The defendant ust watched and did not help.

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ii T+ere is generally no duty to rescue T+e court +olds

t+at t+e defendant %as an adult in full possession of +is mental capacities

iii. / 0-- of the %estatement, econd, of Torts&

1f the actor !nows or has reason to !now that by his conduct whether tortuous or

innocent, he has !ausedsuch bodily harm to another as to ma!e him helpless andin danger or future harm, the actor is under a duty to exercise reasonable care to

prevent such future harm. Professor ma#es it a point to argue that there may be a dutyhere if you use this restatement and argue 8cause.9

b Eerie R o v Ste%art

i. *ailroad company normally has a watchman out. =nenight he wasn7t out and a guy, who #new him to be there when danger was present andrelied on him, moved out onto the trac#s and was #illed.

ii. If t+e defendant +as caused t+e plaintiff to rely on astandard of due care it must ma;e a reasonable effort to inform t+at t+e plaintiff

%+en t+e care is being discontinued If they did not, negligence as a matter of law.

c LS Ayres ' o v -ic;s

i.


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ii. 6hen a spouse has actual #nowledge or special reasonto #now of the li#elihood of his or her spouse in engaging in seually abusive behavioragainst someone, the spouse has a duty to ta#e reasonable steps to prevent or warn of theharm. ' person who has a measure of control over another has a duty to attempt tocontrol them in certain situations.

e Tarasoff v Regents of niversity of alifornia

i. Case where the psychologist heard a guy say that he wasgoing to #ill someone. eneral Principles: 's a general 2bright line3 rule, you cannot recoverfor economic damages alone but can recover for them when there has been some personalor property inury. Vuasi property interests might be enough, li#e a fishing company thatlost money because a chemical spill #illed off the fish supply. ?ou need to also loo# towhether the economic damages result from the damage to the person or property.

/. The Cases

a State of Louisiana e9 rel .uste v =5 Testban;

i. %oats collided and caused a navigation halt on the G!river. 's a result, the fishing, shrimping, and related industries suffered considerablyeconomic damages.

ii. court upholds the bright line rule 2no recovery for pureeconomic loss3 but there are concurring and dissenting opinions that lay out the

arguments against it.

b &,Aire orp v .regory

i. restaurant owner brought suit for economic lossesincurred by a contractor that failed to completely timely repairs.

ii &,Aire :actors6

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213 the etent to which the transaction was intended to affect the plaintiff2/3 the forseeability of harm to the plaintiff23 the degree of certainty that the plaintiff suffered inury2@3 the closeness of the connection between the defendant7s conduct and the inury

suffered.2D3 the moral blame attached the to the defendant7s conduct2E3 the policy of preventing future harm

c !eople E9press Airlines3 Inc v onsolidated Rail orp

i. The defendants7 negligence resulted in lea#ing chemicalswhich caused the airlines to close down and suffer loss of business for a few days.

ii. This court holds that economic losses are recoverablewithout damage to property or persons if the plaintiff is particularly foreseeable.

C. &imitations on *ecovery for motional (istress 2NI(3

1. >eneral Principles: Courts have tough standards for considering8emotional distress9 as damages under negligenceImpact rule- there can be no recovery for distress without actual impact 2at one timewas the clear weight of authority3.Pone of Danger rule 7 recovery without impact was allowed but needed to be in the

one of danger 2eventually replaced impact rule3.6hile impact and one of danger applies to bystanders, direct victims2i.e. those that areemotionally in


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i. ' woman came upon a crash seen and saw that her sonwas badly inured. !he wasn7t impacted or in the one of danger but was emotionallydistressed.

ii. +nder (illon, elements for NI(:

(/) closely related to t+e in$ury victim(") present at t+e scene of t+e in$uryBproducing event at

t+e time it occurs and is t+en a%are t+at it is causing in$ury tot t+e victim

(G) as a result suffers emotional distress beyond %+ic+

%ould be anticipated in a disinterested %itness

iii. 8These are bystander recovery casesJmy son waswatching T0 when the challenger blew up and he was upset for a long timeJshould hehave been able to recover under NI(59

;+nder5illionthe elements for recovery are semi)felible. +nder hin%they become

strict.

(. eneral Principles:

a. 6rongful Conception: The doctor botched the steriliation anda woman gets pregnant. If the child is born, the courts will allow recovery for medicalepenses from birth but not child rearing epenses unless the child is born with ahandicap.

b. 6rongful %irth: The doctor failed to warn of some defect, andthe parents would have chosen to have an abortion if they had #nown. *oe v. 6ade#ic#ed this off, recovery for negligently 8ta#ing away the right to choose.9 !ome courtswill allow recovery, some will not, some allow for general damages, some do not. Aparent brings t+is claim.

c. 6rongful &ife: T+is is a c+ild,s claim. Courts are reluctant toconsider this complaint because it is almost li#e arguing over whether someone wouldhave been better off not born at all. This occurs when a child has a defect or disability.

/. The Cases:

a 4erling v Sandy

i. The plaintiff brought a complaint alleging that thedoctors were responsible for their child7s stillborn birth.

ii. Action for t+e deat+ of a fetus in utero or a stillborninfant is allo%able as long as t+e in$ury occurred %+en t+e fetus %as viable

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b !rocani; by !rocani; v illo

i. 'n infant brings suit for negligence against doctors whofailed to warn his mother that her measles during first trimester of pregnancy would result

in his disabilities. Gother claims she would have terminated the baby. 's a result,plaintiff was born with congenital rubella syndrome.

ii. Parents were allowed to recover special damages foretraordinary medical epenses until the #id reached the age of maority and then hewould receive the money.

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use short cuts, distribute advertising leaflets, come to borrow tools, or solicit charitablecontributions. Land o%ners generally +ave a duty to conduct activities on t+e land ina reasonable manner to %arn of +idden dangers (natural or artificial) ;no%n to

+im. T+ere is no duty to inspect.

. Invitees: Prof. comment, 8there for the economic interest of theowner.> he full reasonable care standard applies.*estatement !econd of Torts Q / recognies two categories of invitees:213 persons who are invited to come on the land for a purpose connected with thebusiness dealings of the possessor and2/3 persons who come on the land as a member of the public for a purpose for which theland is held open to the public. There are public invitees 2person entering a public libraryto borrow a boo#, a person entering a drugstore to use the public telephone3 and businessvisitors 2store customers, building constructors3. 'ccording to the horn boo#, a landoccupier owes invitees a duty to use reasonable care to inspect and discoverthepresence of any dangerous natural or artificial conditions or activitiesand to eercise

due care to %arninvitees of such dangers or ma;e t+e conditions or activities safe.

@. =ther general principles: The statuses flip bac# and forth, one minutemight be a licensee until they brea# out the Tupperware idea and then they become aninvitee. The purpose for being in a public place matters 2sitting in the par#ing lot tosocialie is not being there for invitee purposes3 as does a failure to ta#e action againstconsistent trespassers. :irefig+ters Rule- can7t ta twice in many states, fire fightersaren7t able to recover for inury on premises as a matter of public policies unless it isnegligence ot+er t+an t+at %+ic+ causes t+e need for intervention by t+e plaintiff

Recreational se statutesoften let people who open their land up to the public for nomoney get away will less liability or even no liability.

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D. The Cases:

a .ladon v .reater leveland Regional Transit Aut+ority

i. >uy was a passenger on a train and was beaten anddoesn7t #now if he was thrown into or purposefully wal#ed into the section of the trac#sand was hit by a train.


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%. (uties to Those =utside the Premises

1. >eneral Principles: +nder common law there are two categories ofliability: natural 2no liability3 or artificial conditions 2reasonable care standard3 andactivity. The boo# gives an eample of an artificial condition coming from the land as a

baseball being hit and impacting someone outside the par# versus natural conditions li#esnow melting and flooding someone else7s yard, etc. There are tric#y areas to this rulewhen trees fall from land onto roads or sidewal#s. Gany courts ma#e a distinctionbetween rural and urban trees.

/. The Cases:

a Taylor v #lson

i. Plaintiff7s car ran into a tree that fell across the road intothe enoining highway. The tree was on the defendant7s land

ii. (iscusses categories of duty between rural 2no opinionon a duty3 and urban 2due care3 areas and abandons the categories and says there was aduty to inspect and the ury should decide whether that duty was breached.

C. (uties =wed by &essors

1. >eneral Principles: Gaority of courts recognie this duty with theseeceptions: +nless the vendor #nows of the dangerous condition and conceals it from thepurchaser, he is not liable for inuries that occur after the vendee has ta#en possession."urthermore, once the vendee discovers the dangerous condition and has the opportunity

to correct it, the vendor7s obligation comes to an end.a. ceptions:

i. ' hidden danger in the premises of which the landlordbut not the tenant is aware.

ii. Premises leased for public use.

iii. Premises retained under the landlord7s control, such ascommon stairways.

iv. Premises negligently repaired by the landlord/. The Cases:

a Sargent v Ross

i. Plaintiff7s four year old daughter fell to her death downdefendant7s stairwell. The landlord was sued for negligent construction and maintenance

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of the stairway which was added to the building by the defendant about eight years beforethe accident.

;The court basically see#s to shift the 4uestion from 8who had control here59 to 8didboth parties eercise due care under the circumstances59

ii. !crapped the categories. Prof comments, 8if thelandlord repairs and someone is hurt than it meets an eGception and is liable so there areno incentives for the landlord to repair. he renters really don+t have an incentiveeither, bc it+s not their property.9

(. Premises &iability: !ecuring 'gainst Crime

1. >eneral Principles: Courts are reluctant to impose a duty of reasonablecare to protect against criminal conduct, but there are eceptions. !ome courts do findthat business owners have a duty to implement reasonable measures to protect their

patrons from criminal acts when those acts are foreseeable. The maority of courts doimpose liability on lessors for failing to maintain reasonable security.

/. The Cases:

a !osecai v 4alBart Stores3 Inc

i. 6oman was mugged in the !am7s store and had B1,of ewelry on her. The plaintiff alleged that !am7s failed to eercise reasonable care toprevent crime in the par#ing lot and sued for negligence.

ii. &oo#s closely at forseeability and a number of tests thatwere available to the court, adopting the 8balancing test9 and determining that crime wasrare in the par#ing lot, so it was not foreseeable enough to put a security guard in thepar#ing lot.

5III Affirmative Defenses

'. (efenses %ased on Plaintiff7s Conduct

1. ontributory Negligence: 2still around in a few states3 conduct on the

part of a plaintiff that is a contributing cause to her own inuries, and that falls below thestandard to which she is re4uired to conform for her own protection.

;%asically does not allow recovery, not matter how small plaintiff7s fault was. The courtthought this was a little too harsh, so it instituted eceptions:

a. ceptions:

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i. Last lear +ance, if plaintiff was negligent but was ina position of peril unable to etricate herself from danger and the defendant discoveredthe plaintiff7s peril, then plaintiff7s contributory negligence was not a bar. In otherwords, the plaintiff7s negligence contributed to the inury but the defendant had the lastchance to avoid the inury and, therefore, plaintiff was helpless.

ii. (efendant7s conduct constituted an intentional tort orcould be c+aracteriFed as rec;less or %anton, contributory negligence is not a defense.

b. The Cases:

i *utterfield v :orrester

aa. Plaintiff was inured by a pole that defendantput up in the middle of the street.


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ii Alami v 5ol;s%agen of American Inc

a. ' drun# guy rammed into a pole and died. Thewidow brought a products liability suit alleging that the vehicle was defected and, if it

weren7t, the her husband would have lived. The issue became whether his criminalconduct - driving while intoicated - was a bar to recovery.

b. Courts may not bar recovery if the plaintiff wasinured while committing a crime if it is a matter of public policy.

d. The effect of the shift on other law: Gost court have abandonedlast clear chance. !ome have abandoned oint and several liability. Intentional torts andrec#less conduct become circumstances for the court to assess under comparative fault.

' problem arises under modified comparative fault when there are multiple defendants.' small minority of states, under modified comparative fault, will deny recovery to aplaintiff that is more at fault than any one single defendant but less than the aggregatefault of all defendants. Gost will allow it.

. 'ssumption of the *is#

a. E9pressassumption of t+e ris;: 2still alive after comparativenegligence3 This usually ta#es the form of eculpatory clauses in a contract, but courtswill apply it to sports at times. 'n eculpatory clause may or may not be enforced by acourt if the harmful conduct is negligent 2contract law play a part, e. adhesion

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aa. Note case, professor comment, 8his is alandmar4 case (si%nificant decision) which involved the patient that was in a hospitaland si%ned a release. As lon% as the hospital was ne%li%ent in the selection of employeesthe hospital was not liable (contract). he court set forth some factors butprimarilyloo"ed at the fact that it was an adhesion contract# ta"e it or leave it. hat about

arbitration a%reements -f you wanna come here you %otta a%ree to arbitration. -t canhappen but doctors hardly lose in A@ so why would they.9

b. Implied Assumption of t+e Ris;: 2pretty much disappearsafter comparative negligence doctrine3 absent a contract, there may be impliedassumption of the ris# if the plaintiff, by conduct, can be held to have voluntarilyassumed the particular ris# involved.

i. !rimaryis a duty analysis, pretty much. 2%uy is in thebleachers and %ets hit by a ball, another way to say this is /O 5N=Icomparativene%li%ence has no effect at all hereE we should not really even be tal4in% about this,

because it+s a duty analysis3.

ii. Secondary is a comparative negligence analysis, prettymuchJin other words, there was a breach of a duty but the plaintiff7s confrontation of aris# was negligent. ( voluntarily confronts a 4nown ris4, what about comparativedama%es, does secondary implied assumption of the ris4 survive Often it does notbecause this doctrine is basically subsumed under comparative ne%li%ence, should nolon%er be a complete bar to recovery3

iii *lac;burn v Dorta

aa. No facts. %asically loo#s at home many courtsapproach assumption of the ris#Jwe don7t have to call it that anymore, it is ust mergedinto the concept of comparative negligence when the court is assessing whether theplaintiff was reasonable in her conduct.

iv Turcotte v :ell

aa. Professional oc#ey inured during a race. TheO charged foul riding and negligent maintenance of the premises along with several otherthings.

bb..eneral rule as to coBparticipants in sports6

t+eir conduct +as to be somet+ing more t+an negligence. Prof comment, 8the basic8uestion is when should that no duty under assumption of the ris" conceptbar A@@recovery rather than reduce recovery.>

@. 'voidable conse4uences: The plaintiff has a duty to mitigate thedamages - the focus is after the inury. 'n inured party must act reasonably to minimieher loss or inury, and where the damages are unnecessarily aggravated or increased

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through her failure to do so, the additional damages are N=T recoverable. (= N=TC=N"+! T&I>NC. This affects only thedamages and this failure to ta#e reasonable measures in no way contributed to theaccident, e. is not wearing a seatbelt.

a *ryant v alantone

i. ' guy had a heart murmur and was told to ta#e a certainamount of medicine before he had any dental wor# done.


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aa. The defendant #ept the animal

bb. The animal had vicious propensities 2every dog entitledto one bit idea3

cc. The defendant #new or had reason to #now 2scienter3

iii. 4ild Animal - typically strict liability standard as long as theharm that occurred is related to the animals dangerous propensities.

b Sandy v *us+ey

i. The plaintiff was #ic#ed by the defendant7s horse and inured.

ii. This case addresses whether contributory negligence can beestablished a defense to strict liability and the court determines that it may not, because a

standard higher than negligence must be established, %+T Nelson says, today,comparative negligence or even a defense of assumption of the ris# may be used.

%. 'bnormally (angerous 'ctivities

a. >eneral Principles: =ne who maintains an abnormally dangerouscondition or activity on his premises or engages in an activity that presents anunavoidable ris# of harm to the person or property of others may be liable for the harmcaused even if the defendant has eercises reasonable care to prevent the harm. The issueis determining what constitutes an abnormally dangerous activity.

b" (estateent /19

i" 2ne who carries on an abnormally dangerous activity issub*ect to liability for harm to the person, land,or chattels of another resulting from

the activity although he has exercised the utmost care to prevent the harm"

ii" trict liability applied only to the !ind of harm, thepossibility of which ma!es the activity abnormally dangerous"

c. *estatement factors to consider when determining if an activity isabnormally dangerous 2softening of strict liability3:

6hether the activity involves a high degree of ris# of harm The gravity of that ris# 6hether the ris# can be eliminated by the eercise of reasonable care 6hether the activity is a matter of common usage 6hether the activity is appropriate to the place where it is being carried onL and The value of the activity to the community

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d. tras: (oesn7t have to be commercial, can be any activity. *is# noteliminated by due care. eneral Principles: the tort of nuisance protects one7s right to the use andenoyment of property. +nli#e trespass, which protects against physical invasion ofproperty by another, the tort of nuisance protects against intangible invasion of one7sland. It is fairly fleible. The distinction between nuisance and trespass is veryimportant: trespass involves a p+ysical invasion of plaintiff,s land %+ile nuisance

protects t+e plaintiff against interference %it+ t+e use or en$oyment of t+e land .There are situations where %=T< occur at the same time.

%. Private Nuisance v. Public Nuisance:

1. ' private nuisance is a non)trespassory interference with the plaintiff7sinterest in the use or enoyment of her property the results in substantial andunreasonable +arm to plaintiff,s interest in the use and enoyment of the land.

a. !ubstantial means that a reasonable person would be offendedby it, not ust a grouchy neighbor.

b. +nreasonable means that, ta#ing all the factors intoconsideration, the harm done by the interference out%eig+sustifications for thedefendant7s conduct.

/. ' public nuisance is an act by a defendant that obstructs or causesinconvenience or damage to the public in the eercise of rights common to all, or in theenoyment or use of common property.

. ' plaintiff usually cannot bring an action for public nuisance unless heor she suffered an inury 8peculiar in ;ind apart from t+at common to t+e public

2e.g. an obstruction on a public road is a public nuisance, but it is a private nuisance as toO it if also bloc#s her driveway3. ' private Nuisance plaintiff must +ave possessoryinterest in t+e landmeaning he or she is either in actual possession or has the right toimmediate possession.

lements of a private nuisance:1. a basis for liability/. significant harm

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. an unreasonable invasion of the plaintiff7s land

C. (efendant7s Conduct

1. (estateent "22

3asis of liability may be&(a) unintentional and unreasonable

(b) unintentional and otherwise actionable under the rules controlling liabilityfor negligent or rec!less conduct, or for abnormally dangerous conditions or

activities"

/. %asically, liability can fall under an intentional tort, negligence, or evenstrict liability standard. Gost nuisances are intentional because the plaintiff hascomplained to the defendant and they7ve ignored the complaints.

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YIII. ('G'>!

'. Compensatory (amagesB. $K$ notes

a. lements of Compensatory (amges

i. Gedical epenses -past, present and future medical bills arerecoverable

ii. &ost arnings and arning Capacity - the ury wor#s to determinewhat loss of capacity is, especially in a situation where the personis not in the career they were always going to be doing.

iii. Pain and !uffering - a catch)all term that in reality covers anysubective reaction to an accident

iv. &oss of noyment of &ife - self eplanatory5C. Case notes

a. Primary instrument of recover in torts cases. 'im is to 8restore plaintiff toher pre)inury condition by paying an amount e4ual to the value of the

interests that the defendant has diminished or destroyed.9b. Cases

i. Anderson v. 7ears, &oebuc4 K *o-1. ' sears heater blows up and burns down the house inuring

a mom, a dad, and their baby girl 2the latter being inuredvery badly and permanently3.

/. The court loo#s at the amount of compensatory damages todecide if they are ecessive. T+e court applies t+eHma9imum recover rule %+ic+ states t+at t+e trial

$udge %ill determine %+et+er a $ury verdict e9ceeds t+e

ma9imum amount %+ic+ a $ury could reasonable find

and3 if it does3 t+e trial $udge may reduce t+e amount

ii. &ichardson v. *hapman1. Two women are involved in a collision. =ne is paralyed

and awarded a mother)load in awards. 's in last case, courtloo#s at this to determine whether this amount is too much.

" T+e court +olds t+at an a%ard of damages is e9cessive if

it is6

a #utside fair and reasonable range compensation

b Results from passion or pre$udicec S+oc;s t+e $udicial conscience

c. Geasuring lossesi. The court will sometimes modify awards

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1. ither they will calculate future inflation in economy andraise the award or

/. They will reduce the award to a value that reflects theability of the plaintiff to invest the award

ii. In determining future loss of wages for a person that has yet to

start a career, if the court has good reason to believe a person wasgoing to pursue a particular career 2person inured while in lawschool or med school3 then the court will factor in the average payfor that career specifically

iii. Compensatory damages are not taed as income, even if theyrepresent lost waged

d. Non)economic losses 2pain and suffering etc.3i. Cases

1. Mc5ou%ald v. arbera. &ady went into permanent comatose while

delivering baby due to doctor7s malpracticeb. The court was loo#ing at the rewarding for loss ofenoyment to a comatose person. T+e courtdecided for an a%ard for loss of en$oyment of

life3 t+ere must be some cognitive a%areness

prere


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and other parties to collect finances they have paidout from the money awarded in a civil case.

3. Qimmerman v. Ausland

a. Court loo#s at whether a plaintiff who failed to get a#nee surgery after an accident involving thenegligent defendant was liable for the furtherdamage to her #nee.

b T+e court uses t+e Hreasonable prudent person

test to determine if t+e plaintiff %as rig+t or

%rong in attempting to mitigate t+e damages of

an in$ury

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53198201 my big torts study guide

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