1 Torts I Professor Nelson Introduction 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 the facts to the rules. !tate law will be the focus, because torts do not often become federal issues. "inally, public policy will li#ely play a very large factor in the court decisions, even if it is not even alluded to in the opinion. 1. $now the %lac# &etter &aw for intentional torts, negligence, and strict liability. Intentional Torts %attery 'ssault "alse Imprisonment Intentional Infliction of motional (istress Conversion Trespass to Chattels Trespass to &and Defenses to Intentional Torts Consent Insanity !elf)(efense (efense of Property *ecapture of Chattels Necessity Negligence Defenses to Negligence (and Strict Liability) Contributory Negligence 'ssumption of the *is# Comparative Negligence Traditional Strict Liability Actions 'nimals +ltraha,ardous or 'bnormally (angerous 'ctivities Private Nuisance Public Nuisance Recoverable Elements of ompensatory and !unitive Damages " #b$ectives of Tort La% orrective &ustice - to correct wrongs. The belief that payment of money damages by the ( to P will ma#e the in.ured P whole again. "airness for its own sa#e. vs. La% ' Economics (ovement - focus on incentives to reduce the costs of accidents

/ 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 imminent apprehension thereof c. Actual harmful or offensive contact directly or indirectly occurs /. 1tras:

a. %attery and intentional Torts, in general, are intended to narrow down fact patterns that have a higher level of culpability than mere carelessness. Negligence will facilitate needs in that area. b) Intent is the most ambiguous piece. ' person may have the best of motives 2fi1 a bro#en arm, clean their apartment by throwing out water from the fourth floor3 and still commit a battery. Intent also transfers. If I intended to hit %ill but missed and hit %ob with a shotgun, then I have assaulted and battered %ob. The 4uestion to as# is did the offender #now with substantial certainty the he would cause the harm or offense5 2 1. of this is the 6or#man7s Comp wor# around where the attorney proves that the employer #new with substantial certainty that removing a piece of safety e4uipment would result in an in.ury.3 Intent can also be described in terms of simple 2meant to intend the contact regardless of what the contact should have been assumed to produce3, actual 2hardly ever will admit to it though3, or implied 2substantial certainty3. *Prof. comments Intent is driven by policy concerns. How we define intent is determined by circumstances. c) -arm can basically be anything that physically impairs the body or causes physical pain or illness 2*estatement3 and, even if it is not harmful, it is still tortuous if it is offensive or would be offensive to a 8reasonable sense of personal dignity9 2*estatement3. The 4uestion is whether a reasonable person in that situation would be offended, and this ta#es into account social norms 2e1. Customs3 and relationships 2buddies that slap each other all the time, a prior course of contact3. d) ontact (volitional act) does not necessarily mean person to person or at that e1act moment 2po#es with a pole, sets up a trip wire3. The contact

: re4uirement also includes ob.ects intimately associated with the victim7s body, i.e. pulling coat lapels, yan#ing a boo# out of someone7s hands, hitting them while they7re in their car, etc. Conse4uences and contact are different, but the offender is liable for the conse4uences 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 if t+e actor %as substantially certain t+at t+e action %ould cause +arm or offense. :. 1tra: The court was concerned with %rian7s age regarding whether a five year old could 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 the offender in determining intent with regards to substantial certainty5 6hat if the guy was drun#, tired, elderly5 6ould that affect substantial certainty5 'lso, parents can be held liable for the torts of their #ids: limited liability 2only liable if they themselves were negligent in failing to supervise the children. ;'dults of diminished capacity have been held liable based on intent as long as they are capable 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 <=&(IN>: The court found that the boy was liable, despite his lac# of malicious intent. *+& : %oth intentionally and unintentionally harmful acts can be penali,ed 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 it wasn7t a criminal act. <e didn7t intentionally #ic# the boy to hurt him, therefore he can7t be liable. %ut the .ury believes the boy is liable because, even though he couldn7t foresee the harm he caused, he still caused serious harm by #ic#ing the child in the leg. *attery6 Intentional harmful or offensive contacts Assault6 'n apprehended offensive, harmful contact c) Talmage v) Smit+ 1. ' man threw a stic# at a couple of boys who were on his property. <e didn7t hit the boy he was aiming at but hit another, causing him to lose his eyesight permanently. Is

@ this battery when he did not intend to hit the boy he actually hit5 There is also a privilege to 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 target yet +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 the others. :. 1tra: Could this have been an assault on the boy he missed and battery on the other boy5 6hat if !mith had intended only to scare them off his property and not hit either boy5 In this case, throwing a stic# to scare the boys is probably reasonable since they are on his property. In order t+at a contact be offensive3 it must +ave been of a nature t+at %ould offend a 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. :. 1tra: This was also li#ely policy, given the year. The scope of employment issue may have gone either way. This might have also been intentional inflection of emotional damages. ;The court has held that there are some items so intimate that they are e1tensions of one7s person - clothing, a cane, or anything held in the hand. Alcorn v. Mitchell (p. 63) (Offensive Battery)) I!!+ : Is spitting on someone a battery. <=&(IN>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,CCC. 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 indirectly ma;e #NTA T 7 can be anyt+ing 7 a po;e

*) 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 imminent apprehension thereof c. the other or a third person is thereby put in such imminent apprehension 1tras: 'ssault is basically battery without or even before the contact, although there is not always an assault when there is a battery 2for e1ample, #issing someone while they7re sleeping, no imminent apprehension3. To constitute assault, it will be necessary to determine if a reasonable person would consider the contact +armful or offensive. If it would not have been either, then the plaintiff will have no claim for the imminent apprehension 2perception or anticipation of a blow3. Imminent Appre+ension is tric#y - it needs to be able to happen, not necessarily at that moment, but 4uic#ly. The *estatement advises: it is not necessary that one shall be within stri#ing distance of the other, or that a weapon pointed at the other shall be in a condition for instant discharge. It is enough that one is so close to stri#ing distance that he can reach the other almost at once, or that he can ma#e the weapon ready for discharge in a very short amount of time. The offended only needs to perceive the reality of the threat as a reasonable person would 2pulls a very real loo#ing plastic gun e1ample3. 4ords alone do not usually constitute assault unless they are together with acts or circumstances that would put the other in reasonable apprehension of an imminent harmful or offensive contact with his person 2*estatement3. Circumstances may mean some serious body language or threatening behavior. onditional T+reats vary on whether they constitute an assault but, generally, if the condition 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, 2your money or your life3 then it is probably assault. 6hat about future5 /.

) :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 or actually harmed /. 1tras: confinement is ambiguous and the big one here because often the person thin#s that the confinement in implied while the person who may be implying it 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 imprisonment 2intentional tort3 case into a case of negligence. If there was no statute, then the common law dictated to that the shop#eeper acted at their own peril and could be sued for false imprisonment if they guessed wrong. If the person is not conscious of the confinement it didn7t happen unless that person was actually harmed. Implied threat and not stated can be 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 threat to 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 %ay to establish willful 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. <e sues for false imprisonment. I!!+ : Is prohibiting a man from going in one direction, when he can go in other directions freely, false imprisonment5

F <=&(IN>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 him physically from leaving. 'N'&?!I!: The court didn7t want to ma#e false imprisonment so broad as to apply to any barring of a public right of way, specifically when there are other avenues of travel open. 'lso, they made it clear that the imprisoner must physically #eep the person from leaving 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 false imprisonment. Gust have confinement to have false imprisonment. *oblyn v. (ennedy+s, -nc. (p. 6') .6' /.$..d '60 (Mass. #12#) "'CT!: Coblyn was a FC)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. <e purchased a sport coat and left it for alterations. =n his way out, he too# his scarf bac# out of his poc#et and put it on. 't this point a security guard came up, grabbed him by the arm in front of several people, and told him he had 8better go bac# and see the manager.9 The trip up the stairs so winded the man he had to go to the hospital for heart problems. P*=C (+* : Coblyn brought suit, .ury awarded him B1/,DCC for false imprisonment. 'ppeals court overruled the def.7s e1ceptions. I!!+ : Can store security be charged with false imprisonment for detaining suspected thief, if person turns out not to be a thief5 <=&(IN>A*+& : Court holds that man was falsely imprisoned since guard grabbed him by the arm in front of several people and told him to go along with him. Court holds that shop#eepers have to have reasonable grounds to detain someone. 'N'&?!I!: There was no way the old man could have escaped. 'lso, to .ust wal# out of the store would ma#e the others in the store thin# he was a thief. Court also found there were no reasonable grounds for thin#ing the man was a thief. Court didn7t want to give store security more power than police by letting them act on reasonable suspicion. Police have to act on probable cause. !hop#eeper had to show reasonable grounds and honest suspicion that person is shoplifting before he can detain someone. Negligence standard. 2*easonable business3 Incentive for shop#eepers, security staff to not detain innocent people.

H %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. e1treme 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. /. 1tras: 'lso called the tort of 8outrage,9 the courts are very strict about granting damages of II ( by itself. %efore this tort was made independent, it was often a part of damages in other cases. E9treme and outrageous conduct means that 8it %oes beyond all bounds of human decency.9 Intentional or rec;less conduct means that it has to be intended to cause the stress, a person 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 to prove that the distress is severe and was caused by the conduct. Court differs on how to do this, some re4uire physical harm to occur 2vomiting3, some don7t. T+is tort does not re<uire any p+ysical contact3 but it is not intended for a simple insult. Exception6 T+e special carrier=utility rule: common carriers and public utilities have been held liable for gross insults that would not otherwise be actionable under the common law re4uirement of e1treme and outrageous conduct. *ace or gender harassment may be merely an insult and still constitute II ( and, in the event that a family member is around when it happens, the offender may also be liable to that person. Courts try to avoid hearing this in connection with marriage. Transferred intent does not apply to t+is tort. :. The Cases. 3il4inson v. 5ownton (p. 2.) !#'12" . 6.B. 2 "'CT!: (ownton went to 6il#inson7s residence and told her, falsely, that her husband had been seriously in.ured was lying at The lms at &eytonstone 2hospital3 with both legs bro#en, and that she should immediately fetch a cab and go to him. Pl.

I suffered severe emotional distress and became violently ill with worry. The effects 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 1CC lira for in.uries caused by nervous shoc#. (ef. claimed that pl. shouldn7t be able to recover for shoc# since at the time it wasn7t actionable. 'ppeals court affirmed trial court7s ruling for pl. I!!+ : Is mental distress actionable5 <=&(IN>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 no e1cuse. Pl. can recover for emotional distress though court notes that it is setting a precedent 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 too broad cause of action. Potts v. <ayes Printout Case <owell v. New ?or# Post Co.

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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.

/. 1tras: 8=ne who intentionally enters land in the possession of another has committed the tort of trespass to land. ven one who mista#enly steps on another7s property, believing it to be his own, commits the tort.9 %utJnot when they didn7t have a choice 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 e1clusive possession. No damage is re<uired) Transferred Intent doctrine does apply to trespass to land. :. The Cases: 5ou%herty v. 7tepp (p.1) #' /.*. 32# (#'3 ) "'CT!: (ef. went onto Pl. land to do some survey wor#. <e didn7t mar# any trees or hurt anything, but he was on the Pl. land without permission. (ef. was also trying to claim the land as his. P*=C (+* : Pl. brings suit in Circuit Court saying that the (ef. should be penali,ed for venturing onto his land without permission. Kudge rules for def. Pl. appeals, and appeals .udge reverses decision and rules for Pl. I!!+ : Is it unlawful to be on someone else7s property, even if you do no harm to it5 <=&(IN>A*+& : It is unlawful to be on someone else7s property without permission whether or not you harm anything. 'N'&?!I!: The appeals .udge wanted the act of invasion on another person7s land to be the main issue, whereas the trial .udge got bogged down in whether or not harm was caused. <arm is beside the pointL it7s the invasion of private property that matters. Protecting private property titles. !trict liability5 /. Leaving a piece of property3 depending on t+e statute in t+at $urisdiction3 on someone,s land may constitute a trespass if t+e consent +as e9pired or been removed) :. Professor comment: Sometimes in t+ese intentional torts cases3 %e,re ma;ing it loo; li;e strict liability (trespass) and negligence (s+op;eeper) because %e,re stretc+ing) 11

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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 intermeddling with or using the property. /. 1tra: Trespass to Chattels deals with intentional interferences with the personal property of others. It7s the lighter version of conversion. The plaintiff may only recover the amount of harm done to the chattel in a dispossession case 2including rental fees or whatnot if the plaintiff suffered in its absence3. In an intermeddling case: No harm, no money. 1ample was ta#ing a boo# for an hour and spilling coffee on it, defendant should pay for the coffee spill. If she ta#es the boo# for an hour, it may be conversion and the M should pay the entire value. Transferred intent doctrine applies. :. Cases: a) ompuserve Inc) v) yber !romotions 1. Cyber promotions made a business of spamming compuserve7s email account holders and was persistent despite a re4uest to discontinue and technological attempts 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 intermeddling if t+e proper criteria is met) 8The court also assigns liability under the !econd *estatement because that chattel was 8impaired as to its condition, 8uality or values.9 -ntel *orp. v. 9amidi (p.#3) 2# :.3d .16 (*al. .003) "'CT!: <amidi is an Intel employee who sends out emails critici,ing the company to its employees on si1 separate occassions. <e removes anyone from the list who re4uests it. Intel gets pissed and files suit. mails didn7t hurt anything. P*=C (+* : Intel files suit against <amidi claiming he committed the tort of trespass to chattels by using company emails. Trial court allows pl. to have summary .udgment, silencing <amidi. !upreme Court disagrees. I!!+ : (oes sending emails within a company that the company doesn7t li#e constitute a trespass5 <=&(IN>: 1/

1: 'ppeals court holds that electronic communication doesn7t constitute an actual trespass to personal property. <e did nothing to harm the company, the computers, or the email system. 'N'&?!I!: There is no trespass against Intel since (ef. didn7t interfere with possessor7s possession of the personal property. (issent says that the real issue is that Intel7s networ# is personal property, and .ust because he didn7t crash the system didn7t mean that he wasn7t doing something harmful to the system. pstein wants it treated as real property. %ut the pl. has to prove actual damage if it7s treated as real property. !ame thing applies to personal property, must show harm. Court doesn7t want to get into the idea of free speech, but would prefer the legislature get into it.

.)

onversion
1. The lements: a. 0olitional 'ct b. Intention to perform the act that constitutes the trespass c. e1ercising dominion or control of the property d. serious interference with the other7s right to control

/. 1tra: The real difference is degree of interferenceL conversion is mar;et value or +arm caused %+ile trespass to c+attels is only t+e +arm caused3 if any) If the defendant destroys or materially alters a chattel, there is a conversion. 'n important factor is whether any harm to the chattel was caused by or during the improper use. %uying or selling stolen goods is still a conversion because the buyer still asserts ownership rights and deals with the chattel in a manner inconsistent with the rights of the true owner. ;%oo# definition - conversion is the intentional e1ercise of dominion or control over a chattel which so seriously interferes with the rights of another to control it that the actos may .ustly be re4uired to pay the full value of it. a. *estatement !econd of Torts ///' 2/3 says In determining the seriousness of the interference and the .ustice of re4uiring the actor to pay the full value, the following factors are important: 1. the e9tent and duration of the actor7s e1ercise of dominion or control /. the actor7s intent to assert a right in fact inconsistent with the other7s right of control. 1:

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:. the actor7s good fait+ @. the e9tent and duration of the resulting interference with the other7s right of control. D. the +arm done to the chattel. E. t+e inconvenience and e9pense caused to the other. :. Cases: insert from cb 1:):D 1amples: 13 If ' intentionally destroys %7s chattel, ' is liable for conversion. /3 If ' intentionally caused minor damage to %7s chattel, ' is not liable for conversion but would be liable for trespass to chattel. :3 If ' attempts to steal %7s chattel, but is caught within minutes, ' is liable for conversion because of the weight placed on '7s bad faith. @3 Purchasing stolen property even if purchaser is acting in good faith constitutes conversion by both the seller and the innocent buyer.

<. The +mbrella Intentional Tort N T+ird Restatement of Torts ?1L 'n actor who intentionally causes physical harm is sub.ect to liability for that harm. This would cover down on some of the intentional wrongdoings that are a stretch under other torts.

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II) !rivileges= Defenses

A) onsent
1. The Concept: consent means what it soundsL if the defendant can prove that the plaintiff consented either verbally, by a manifestation of actions, or another way, then this is an affirmative defense. E9ceptions including: if procured by fraud, if the act goes beyond the scope of consentL the person is consenting under a state of duressL the defendant presents a mista#e of fact or of lawL consent is not informed 2thin# medical here3L lac# of capacity to consent 2infant, drun#, etc.3, and 2differs by court but ma.ority 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 consent and informed consent. ' cause of action surrounding a legit valid consent 2a battery cause of 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 or negligence 2more common3 cause of action. %attery is easier to prove because there is no need for an e1pert testimony. 1. .eneral Rule: Consent is a defense to intentional tort liability. If the victim gives permission, the conduct that would be tortious is privileged. Consent is sub.ective. ;iolenti non fit in<uria: to one who consents, no wrong is done. Consent operates to eliminate the P7s prima facie case, the offensiveness of the contact, rather than operating as a separate affirmative defense. /. E9press onsent: Consent is a valid defense when it is ob.ectively manifested. 'n individual can e1press through words or gestures. :. Implied onsent: Consent is implied when, under the circumstances, the conduct of the individual reasonably conveys consent. @. Restatement3 Second3 of Torts ?@0") Geaning of Consent 213 A TAAL #NSENT: Consent is willingness in fact for conduct to occur. It may be manifested by action or inaction and need not be communicated to the actor. 2In the victim7s head there must be consent.3

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1E 2/3 A!!ARENT #NSENT: If words or conduct are reasonably understood by another to be intended as consent, they constitute apparent consent and are as effective as consent in fact.

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

:A TS: 6oman stood in line to be inoculated, held up arm. (idn7t want to be inoculated. RALE: If plaintiff7s behavior is such that it indicates consent, regardless of her actual feelings, defendant cannot be held liable for battery. D. ImpliedBInB:act onsent: ' continuing, informal pattern of interpersonal behavior may constitute implied)in)fact consent among those involved, for the behavior to continue. Consent tacitly given by one individual to another based on their shared history is implied)in)fact consent. 2patterns of practical .o#es may imply consent to continue with the .o#es or tenant #nowing that cars par#ed in front of apartment comple1 get towed implied consent for hers to be towed if par#ed there3 E. ImpliedBInBLa% onsent: !ome categories of conduct allow the courts to attach consent as a matter of law. These may include participating in professional football. Consent is also implied as a matter of 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 capacity due to insanity or retardation may not legally consent. Incapacity can also be invalidated due to drugAalcohol into1ication. 2/3 Action *eyond Scope of onsent: Consent is invalidated if it goes beyond the consent manifested.

-ac;bart v) incinnati *engals3 Inc)

:A TS: Pro football player hit after the play was over. !ued for battery. RALE: %y participating in the game, the player has not implied consent to tortious activity beyond the scope of the game and outside the rules which results in in.ury.

(o+r v) 4illiams

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1F Patient was anestheti,ed and the doctor decided that the left ear 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 ear5 <=&(IN>A*+& : 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, even though he did so with no evil intent. 'N'&?!I!: Court found that consent must be e1pressly given and cannot be implied in places where it wasn7t e1pressly given. Cennedy v) !arrot reverses t+is decision (N) ) /01D) 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
:A TS: (uring appendi1 operation, surgeon sees ovarian cysts, bursts them, causes woman to contract phlebitis. RALE: 6here an internal operation is indicated, a surgeon may lawfully perform and it is his duty to perform such operation as good surgery demands, even if it means an e1tension of the operation further than was originally contemplated, and for doing so he is not held liable for damages for an unlawful operation. 2:3 :raud: Consent is invalidated if it is induced by fraud that misrepresents an essential aspect of the interaction.

De (ay v) Roberts
:A TS: (r. brought stranger into patients home. <e helped with delivery even though he wasn7t a doctor or med student. Patient was under impression he was in the medical field. RALE: If plaintff gives consent as the result of deceit, the consent does not preclude the plaintiff from an action after finding out the truth of the circumstances. 2@3 Duress: Consent procured under physical threat is invalid. conomic pressure generally does not negate consent. 2D3 Lac; of apacity: Common law 8mature minor9 doctrine: courts measure a child7s age, ability, e1perience, education, training, and degree of maturity in order to determine consent. !ome states statutorily proscribe an age of consent. Illegality: Ga.ority of courts hold that a person cannot consent to a criminal act, that the consent is always invalid. The

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1H minority view and the *estatement Q EC, E1 hold that a person can consent to criminal acts for purposes of tort liability. 2E3 Informed onsent6 failure 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 involves having 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 the procedure and then another performs it, valid consent is not present and is a cause for battery lements: i. ii. 2a3 (uty

%reach of (uty: !rudent !atient Standard: 6hether a reasonable patients would want to be informed of these ris#s. 2=%K CTI0 3 This is the minority view. 2b3 !rofessional Standard: 6hether it is the standardAcustom of the profession to tell of these ris#s. This is the ma.ority view. iii. Causation 2a3 ounterfactual ausation: P would have chosen no treatment or a different course of treatment had the alternatives and material ris#s of each been made #nown to him 2P7s words only3. 2b3 Actual ausation: ' causal connection between the patient7s in.ury and the doctor7s breach of a duty to disclose e1ists only when the disclosure of material ris#s would have resulted in a decision against it 2re4uires e1pert testimony3. If the patient 2a reasonable person3 would have chosen to go ahead with the treatment had he been informed of the ris#s, the element of causation is missing. iv. (amages) The ris# must have materiali,ed and P must have been in.ured as a result of the treatment.

Scott v) *radford
:A TS: P says that doctor did not properly inform her of the ris#s of the operation. RALE: In a medical malpractice action a patient suing under the theory of informed consent must allege and prove 213 physician failed to inform him ade4uately of the ris#s 1H

1I 2/3 if patient had been informed he would not have had the surgery 2:3 the adverse conse4uences that were not made #nown did in fact occur and patient was in.ured as a result of submitting to treatment. The scope of a physician7s communications must be measured by his patient7s need to #now enough to enable him to ma#e an intelligent choice. "ull disclosure of all material ris#s incident to treatment must be made. ' ris# is material 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 materiali,ed and the patient was not informed of that ris# and counterfactual causation focuses on something that didn7t happen, what the patient would have done if he had #nown the ris# 2some courts use the plaintiff7s own sub.ective standard but the ma.ority use the reasonable man standard3. ' form does not always fly with consent, duress negates consent, but not economic duress, lac# of capacity also vitiates consent. Professor brought up hypothetical 4uestions where #ids fight 2can they consent, what about mature minor doctrine3, consenting in illegal situations, se1ual intercourse 2*ule of F Scan7t consentT, F)1@ Spresumed can7tT, 1@)1F Spresumed can consentT3.
/3 if he had been informed of the ris#s, he would not have consented to the treatmentL :3 the adverse conse4uences that were not made #nown did in fact occur and he was in.ured as a result of submitting to the treatment.

i. 1ceptions include: an1iety 2the patient would have been far too upset and refused the treatment and suffered as a result3, emergency 2applies to both valid consent and informed consent, maybe the patient is drun#, unconscious, a #id, etc.3, and common #nowledge 2patient should #now this anyhow.

*) Self Defense

1I

/C

1. The Concept: !elf (efense is an affirmative defense to an intentional tortL the focus seems to be the reasonableness and proportion of the force used. /. The Professor7s notes: <e made sure to emphasi,e the e1istence of a duty to retreat when not in the home =* when the home is .ointly owned by the person responsible for the threatening conduct when considering the use of force intending or li#ely to cause death. There is no duty to retreat when the force is reasonable and not li#ely or intending to cause harm.

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/1

@. The Cases: a) ourvoisier v) Raymond3 /@0D 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 re<uires t+at t+e defendant acted +onestly in using force and t+at +is fears %ere reasonable under t+e circumstances3 and also as to t+e reasonableness of t+e means made use of) I!!+ : Can self defense be claimed if the threat is only perceived5 <=&(IN>A*+& : The court finds that whether or not the threat is real, if a person feels his life is threatened and reacts with force, it is .ustified. It was a reasonable mista#e for the def. to thin# the cop was a rioter - cop was negligent to wal# up on an armed man. Negligence standard. 'N'&?!I!: The court wanted to ma#e clear that self defense is a defense as long as there is a perceived life)threatening situation. (oesn7t matter if the perceived aggressor is innocent. Defense of #t+ers6 'merican courts have e1tended a privilege to actors who intervene and use force to protect and defend others from threats and attac# by third persons. Professor7s hypo: ' 2old lady3 is being helped by % 2guy who7s carrying her purse3 and C intervenes and in.ures % thin#ing that he is attac#ing her. <ow does that wor#5 There is a mista#e of fact here. C and % are both good !amaritans here. Is C liable5 C uses reasonable force here. If you7re wrong here, you gotta pay even if the mista#e is reasonable under the circumstances. ;Gany states have enacted statutes against the common law right to resist an unlawful arrest.

) Defense of !roperty
1. Courts generally hold that law should place a higher value on life than on property. 28=ou can protect your property but you can+t use deadly force unless there+s threat to human life.>3 /. The Cases: a) Cat;o v) *riney3 /02/ 1. >uy 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!:

/1

// Pl. is a 1I)year)old who was as#ed by a maid to go into another man7s garden in the afternoon to retrieve a fowl that had escaped. <e climbed over the bac# of the garden wall and wal#ed into a trap. <e was shot in the leg above the #nee, presumably badly maimed. %oy had no idea there were spring guns set up, didn7t see them. The garden7s owner had set up a spring)gun trap because someone had stolen flowers and roots from the garden recently. !omeone as#ed the def. if he should put up a notice that the traps were there, but the def. was afraid that if he put up notice, he wouldn7t catch the thief. 2If his general thing was to deter, why not put up sign5 %ecause he wanted to in.ure and detain.3 I!!+ : Is def. liable for setting gun trap on his own land to hurt criminals5 <=&(IN>A*+& : The court holds that the setting of spring guns without giving notice, is an inhuman act, and the def. must yield redress to the sufferer for causing harm. 'N'&?!I!: It would seem that force is only .ustified when someone is trying to protect themselves or another human, not when someone is trying to protect chattels 2in this case tulips3 from being stolen. Kudge ma#es the point that boy was only a trespasser and if the def. had been physically present at the time of the trespass, he couldn7t have even lawfully ta#en him into custody, much less wounded him. Policy argument from defense: if you impose liability on defendant then it7s impossible for people to protect their property from a distance. CK mentions religion. The law and religion intertwine in this case. Notice re4uirement.

D) Recapture of +attels
The self help privilege allows chattel owners to use reasonable force to reclaim property from a dispossessor as long as there is a 8hot pursuit9 factor or sense of immediacy i.e. it was very recently discovered that the chattel has been dispossessed. =nce the sense of immediacy is lost, the privilege is gone. If the party is wrong, then they are liable under common law. The shop#eeper7s privilege is mentioned as, often, an e1ception outlined in statutes. *epossession is governed normally by the +CC. (irby v. ?oster (p. )6) .. A. #### (&.-. #'1#) "'CT!: Pl. $irby was an employee of a company where BDC was lost. The money was ta#en out of his paychec#. Then the boss gave him some money to distribute to the help. Pl. too# BDC out of it and #ept it for himself, giving the rest bac# to the boss. Pl. had as#ed advice from lawyer about it and thought that it wasn7t wrong

//

/: to ta#e the money. The boss got pissed that pl. poc#eted the money and he and his son tried to forcibly ta#e it from him. P*=C (+* : Kury filed for plaintiff in lawsuit, def. petitioned for new trial on e1ceptions to the rulings and refusals to rule of presiding .udge. I!!+ : Can someone use force to reta#e a chattel that was peaceably given5 <=&(IN>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 it was rightfully his, especially after see#ing counsel about it. %asically, it7s not =$ to hurt someone to ta#e something bac# from them that was peaceably 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 peaceful court channels to settle dispute. The self)help remedy of recapture is allowed when one person wrongfully obtained possession of the chattel either by force, fraud, or without claim of right. 'ny privilege of recapture must be e1ercised promptly - the so)called hot pursuit re4uirement - or else it will be lost. ' chattel can be recovered peacefully, no disturbance of public peace, do not harm, 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 in damage to the wharf. /. 4+en t+e defendant +as a c+oice to avoid damaging anot+er,s property and not and +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 to privilege one person to harm another7s property so as to merely safeguard his own possessions. P=&IC?UUUU ;The courts have generally not held liable the destruction of property to save a life or lives. :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 sloop when a storm came up. "or safety, the pl. moored his boat to the def.7s doc# on an island the def. owned in the la#e. The def.7s agent, a servant, then went and unmoored the ship, causing the ship to be destroyed and its occupants thrown into the water and onto the shore )) in.uries. I!!+ : 6as pl. .ustified in trespassing in order to save his life, those of his family and his property5 <=&(IN>A*+& : The court cites multiple cases that say yes, one can trespass on another7s land to save 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 someone trespasses to save property, as long as they do no harm, that7s o# too. 1ception 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 Aransportation *o. (p. #) #.) /.3. ..# (Minn. #1#0) "'CT!: The *eynolds was moored at a wharf in the harbor of (uluth unloading its cargo at about 1C p.m. Nov. /F, 1ICD. 'n e1tra severe storm rolled up shortly after all the cargo was offloaded, so the crew moored the boat to the doc# in order to #eep it from drifting away. The storm was too severe for it to go anywhere else, so the captain decided to weather the storm tied to the doc#, where it did BDCC in damage. 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 the doc# 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 damage the person7s land5 <=&(IN>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 the detriment of someone else7s. 'N'&?!I!:

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/D Court doesn7t want to put burden on in.ured party. %ecause sailors renewed ropes, court doesn7t really agree with dissent. Ga.ority really doesn7t loo# at contract between ship and doc#, letting ship moor to doc#. 'lso, BDCC damage to doc#, versus B1C,CCC boat was saved. (ef. profited, pl. lost out. (issent states that if the boat was lawfully moored to the doc# at the beginning of the storm, then it was inevitable that the boat would harm the doc#, since the storm prevented the ship from leaving.

!ublic necessity ' private or public individual isn7t liable for destroying public property for the greater good of society - complete privilege gives people incentive to act for the greater good. 2#eep fire from spreading, wartime - #eep things away from enemy.3 !ublic necessity and $ust compensation +.!. Constitution says government must pay for private land ta#en for public use. %ut doesn7t always wor# that way. +nited !tates v. Calte1 Inc. p.DF. In police power or regulatory cases, it seems the government doesn7t have to compensate. $ent !tate case. <. (isciplining Children 1. Courts have been reluctant to stri#e down span#ing children 2parents or teachers3 as longs as the punishment is 8reasonable in light of the seriousness of the offense, the attitude and past behavior of the child, the nature and severity of the punishment, the age and strength of the child, and the availability of less severe but e4ually effective means of discipline.9 ". Insanity Defense McBuire v. Almy (p.33) ' /.$..d 260 (Mass. #132) "'CT!: ' nurse, the pl., is hired to ta#e care of an insane woman around the cloc#. !he even sleeps in the room ne1t door to her for 1@ months. The def. had been violent at times, brea#ing things, but never doing any harm to the pl. 'pril 1I, 1I:/, the def. has a violent attac# and begins smashing things in her room. The def. then told pl. and the maid that if either one of them came in her room that she would #ill them. Pl. called for the def.7s brother)in)law for bac#up because they wanted to go into the room and ta#e the bro#en bits away from her before she hurt herself. I!!+ : Can an insane person be held liable for an assault and battery5 <=&(IN>A*+& : The court holds that the insane def. can be held liable, but mainly because the def. had the intent to harm the pl. !he verbally told the pl. that she would attac# if the pl. came into the room, showing intent to harm. 'N'&?!I!:

/D

/E Kudge is basing the entire ruling on the deranged woman7s intent to harm. <er being insane is irrelevant here because she clearly had a wrongful intent. Kudge also wanted .udgment to serve as a warning to the families of cra,y people: ta#e care of your cra,ies, because if they in.ure someone, they are at fault. Kudge wanted to limit insanity defense in civil cases. Insane person caused in.ury, therefore insano should pay for it. 2fairness3 Previous case law supports that an insane person is liable for his or her actions. In criminal law, you7re absolved of liability if you7re insane.

III) Negligence TimeE

'. The elements: 1. (uty 2determined by the court as a matter of law3 /. %reach of (uty 2determined by .ury, reasonable person standard3 :. Causation 2must have both types3 a. Cause)in)fact 2the plaintiff must prove a connection between the defendant7s conduct and the damage3 b. Pro1imate Cause 2a cause that is legally sufficient to result in liability, usually policy based decision. ' single negligent act may produce untold and unforeseeable conse4uencesJcourts will usually deny a duty once the cause becomes too remote3 @. (amages - there has to be some harm in order t recover %. 1tras:

1. Class: The elements of negligence, unli#e intentional torts, bleed into each other and are difficult to parse separately, and courts don7t necessarily follow these concepts rigidly. The concept of negligence is very fle1ible. Professor says that, although &earned <and7s *is#A+tility %alance is not really used a great deal, it does provide an economic approach to negligence. <e also thin#s that another way to loo# at it 2product liability #inds of negligence3 is for companies to consider damage that results from their conduct as a cost of doing business and to budget it in, maybe pass it on to the consumer. Gaybe that is another way of handling it economically because the companies that cannot profit because there are too many damages will go out of business.

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/F Professor Comment: C/obody really, in trial court, uses this learned hand formula. -n a products case, you+re %oin% to be determinin% if there+s a reasonable alternative desi%n. Ahat 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. /. <ornboo#, The *easonable Person: *is#s are sometimes necessary but the reasonable person considers those ris#s in light of the utility of the conductL *P also considers the e1tent 2gravity3 of the ris#s, li#elihood 2probability3 of the ris#s, and costs 2burdens3 of the ris#. This is a bit cold blooded but there is an economic analysis to the formula. The .ury won7t li#e be instructed on the &earned <and formula, but they will consider whether the *P would have ta#en the ris# under the circumstances using the aforementioned criteria. a. Personal Circumstances 2sometimes relevant3: i. Physical disability counts, and we e1pect those #inds of people to need to ta#e ris#s to function in society 2blind guy wal#ing the streets3. ii. Gental capacity does not countL if it did the cases would be trying a person7s character and intelligence rather than their conduct. No e1ception for the dumb or mentally ill. iii. The *P child is measured by age, intelligence, and e1perience unless the child was participating in some dangerous, adult activity. b. 1ternal Circumstances 2always relevant3:

i. emergency doctrine - the fact that the offender had to ma#e a very 4uic# decision may be considered under the circumstances. ii. Customs are relevant, suggests that the conduct is acceptable under the circumstances, although it is not bulletproofL custom may lag behind for a number of reasons 2seat belt e1ample3 iii. statutory standards of care, the *P obeys the law iv. e1pert or professional status may be ta#en into consideration as a circumstance. v. facilities or resources available are circumstances to be ta#en into consideration when deciding what is reasonable 2>P litigating anti)trust in $ansas but not (.C.3.

/F

/H 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 for leaving the club in the bac#yard. b. T+e la% re<uires no duty to ;eep common t+ings out of t+e reac+ of c+ildren) ") Anited States v) arroll To%ing o) a. ' bargee left his tow tied down in the daylight hours. ' tug boat unfastened the barge and the re)fastened after moving some barges around. The bargee7s barge came loose and resulted in damage to a tan#er before sin#ing to the ground. b. Learned -and :ormula6 T+e court +olds t+at an o%ner,s duty to provide against resulting in$uries is a function of t+ree variables6 /) T+e :robability of t+e event +appening) ") T+e -n<ury+s gravity) G) T+e Burden of ade<uate precautions) B D :If t+e burden of ade<uate precautions is less t+an t+e gravity of t+e resulting in$ury multiplied by t+e probability of t+at occurring t+en t+ere is negligence) If t+e burden of ade<uate precautions is greater3 t+en no negligence) T+is is Ris;=Atility *alancing) G) 4as+ington v) Louisiana !o%er and Lig+t o) a. ' guy who owned a large C.%. *adio with a very tall antenna had previously come into contact with an uninsulated power line at this home and suffered some in.ury. ?ears later, his antenna hit the wire again, and he died as a result. b. ustom may +ave a significant impact on %+et+er a potential offender +as been negligent) In t+is case3 it %as t+e po%er company,s custom to +andle t+e %ires t+e %ay t+ey %ere +andling it) The court here, according to the professor, does a 8half)ass9 utility balance under &earned <and. (. The Vualities of the *easonable Person /) 5aug+n v) (enlove

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/I 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 increased it. veryone told him that he would be doing this, so the 4uestion becomes was he negligent when he truly believed that he was doing a good thing in spite of what other people #new to be true5 b. An offender,s actions must be $udged in lig+t of %+at a reasonably prudent person %ould do under t+e circumstances) #b$ective standard for mental capacity) ") Delair v) (cAdoo /0GD a. The plaintiff was passing the defendant in his vehicle and the defendant7s tire blew out resulting in damage to the plaintiff7s vehicle. Professor raised a lot of discussion over this case with 4uestions li#e, 8'm I supposed to chec# all of my car parts 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<uires drivers and o%ners of motor ve+icles to ;no% t+e condition of t+ose parts %+ic+ are li;ely to become dangerous %+ere t+e fla%s or faults %ould be disclosed by a reasonable inspection.9 :. !pecial $nowledge !tandard: Courts disagree as to whether someone7s e1pertise or special #nowledge should re4uire them to act more reasonably than the prudent person under certain circumstances and whether they could be held liable for not doing so. @. mergency !ituations and the *easonable Person a) ordas v) !eerless Transportation o)

i. ' criminal .umped into a cab driver7s vehicle and pointed a gun at him, telling him to drive. Instead of driving, he .umped out of the vehicle. The vehicle continued to move and struc# a woman and her two children. ii. T+e la% does not +old one in an emergency to e9ercise mature or reasonable $udgment under circumstances %+ere +e +as an opportunity for deliberate action) <ornboo#s says emergency doctrine is really about ta#ing the fact that the actor had to hurry up into consideration of the circumstances. iii. Classroom 1cerpt6 6as this an area of the city that was crowded5 !o was this .ust negligence or perhaps rec#lessness or maybe even an intentional tort5 Is this case the same as 0incent, in that case if you needed to use that property then you would have to pay for it. Is the court treating this as a self defense case then5 The court tal#s about the rescue doctrine 2you don7t have any duty to rescue somebody3. (idn7t he create the situation himself5 Prof says that this is a self defense

/I

:C thing here. Is there a privilege to use force against these people on the sidewal#5 <ow does this sudden emergency doctrine come into this5 6e ta#e the circumstances into account. Prof draws the hypo on the board with cliffs on each side of the roadJif he swerves either way he will endanger himself. /CC #ids are #illed as a result. The court in this case is pointing towards no duty to rescue. The issue is whether .uries should get special emergency instructions and even t+e courts t+at approve t+em %ill not if t+e actor,s prior negligence created t+e emergency) D. *easonable Person and Customary Practice a) Trimarco v) Clein i. !hower glass shattered and guy was in.ured. Custom was to begin replacing the shower glass with shatterproof glass. ii. ustom plays a part in determining standard of care because it reflects t+e $udgment and e9perience of t+e many> +o%ever3 it is still a part of t+e Hreasonableness under t+e circumstancesI 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 was ignored and that this departure was a pro1imate cause of the accident it may serve to establish liability. ;The court also established in the TK <ooper case 2tug owners not customarily e4uipping their tugboats with radios3 21I:/3 that 8there are precautions so imperative that even their universal disregard will not e1cuse omission.9 b) Roberts v) State of Louisiana i. ' blind guy did not bring his cane and bumped into an elderly man who fell and in.ured himself. ii. As to +is p+ysical c+aracteristics3 t+e reasonable man may be said to be identical %it+ t+e actor in <uestionJAt t+e same time3 t+e conduct of t+e +andicapped individual must be reasonable in lig+t of +is ;no%ledge of +is infirmity3 %+ic+ is treated merely as one of t+e circumstances under %+ic+ +e acts) E. Gental Incapacity: The courts will generally not consider mental incapacity a defense to failing to meet the reasonable person standard. ' policy decision here, incentive is to encourage careta#ers to ta#e more precaution and mentally ill people present more of a danger than physically challenged people. <owever, 8when the defendant was a competent negligent wrongdoer and the mentally ill plaintiff failed to act reasonably with regard to his own safety, there is good reason to allow the mentally

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:1 challenged person to recover.9 !oJsome courts have this sub.ective standard with regards to a mentally challenged plaintiff and contributory negligence. F. *eligious %eliefs and Negligence: The hot topic is whether a defendant should have to pay for the e1tra damages that result when a plaintiff does not get ade4uate treatment do to religious beliefs. Professor mentioned Eggs+ell S;ull Doctrine - if the in.uries are ten times worse .ust because someone has a s#ull as soft as an egg shell, oh wellJthe defendant is payingL no ob.ective standard for what #ind of damage would be li#ely, only sub.ective what #ind of damage occurred. Professor thin#s that this doctrine has something in common with religious beliefs in regards to e1acerbating 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 .udged as 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 in while driving, it is illogical to thin# that the danger lessens when they activity is underta#en by a minor with little or no e1perience. iii. Professor raises 4uestions li#e, 8what is an adult activity5 !houldn7t people see this #id coming in a driver7s ed vehicle59 b. *estatement Third or Torts: &iability for Physical <arm
10. Children (a) When the actor is a child, the actors conduct is negligent if it does not conform to that of a reasonably careful person of the same age, intelligence, and experience; except that (b) A child who is less than five years old of age is incapable of negligence; and (c) The special rule in ubsection (a) does not apply when the child is engaging in a dangerous activity that is characteristically underta!en by adults"

c. There is also something called the Illinois *ule which a minority of states follow: If the child is above 1@ then the presumption is that the child is able to reach the reasonable person standard. If between F and 1@, the presumption is that he or she is not, and under the age of F, the child cannot be negligent. I. The !tandard Care for Professionals

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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 to exercise 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 another doctor too# it out later, e1plaining 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 average physician 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 <e must have violated the recogni,ed standard of good medical practice in the community in which he is practicing. *ule /. may still be good in some instances but is more li#ely to be loo#ed at on a larger scale than .ust that community now. :3 The medical standard for the community must be proven. @3 No presumption of negligence is made simply because the patient suffered a negative result D3 ' medical e1pert is necessary unless a layman can determine that the physician breached a duty E3 There must be testimony from other physicians in the community saying that they doctor in 4uestion deviated from the standard. *ule : - E are all about e1pert testimony, and they are still relevant. 'n e1pert must testify as to the standards and reasonableness of those standards e1cept in cases were a layman may determine the what is reasonable 2sponge left inside someone3. iii. Professor e1plained that it is all about the custom and the %oyce case had a hard time because they had to get doctors from the 8community.9 Gost courts have dropped the 8average9 standard here.. . Kudicially (etermined !tandards of Care

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:: 1. *is#A+tility %alancing to set the !tandard of Care 2(oesn7t happen much3 a) -elling v) arey3 4as+) /02K i. The plaintiff7s eye doctors did not administer an eye pressure test, and she developed glaucoma and practically went blind. 1pert testimony revealed that the standard of medical care was to N=T conduct the test. The court made up it7s own rules. ii. Ad+ering to professional standards does not insulate t+e defendant from liability if a deviation from t+ose standards %ould be reasonable) iii. Professor went to some effort to demonstrate how wrong the court was here, even regarding the facts of the case. 1cerpt: 8This case scared fol#s because now they would #now what the standard was until the court told them so. Not only was the standard not binding, but the court would decide for itself and wouldn7t need e1perts. !ome say that this decision caused the malpractice crises of the mid 1IFCs.9 No court really followed this articulation of the court7s own standard of care. Professor also raised argument for the court7s actions in stepping in: customsAstandards might lag behind in certain areas, customs are different by locations and need to be uniform. 8&et7s distinguish between resources and techni4ue, we can e1pect techni4ue to be the same even though resources will not be.9 Professor states that the court didn7t #now what it was doing and .ust basically sympathi,ed with the young girl. ;;;Not a good case for precedent. /. Courts Interpretation of !tatutes and /e%li%ence :er 7eE If the statute or regulation mentions civil liability, it is not negligence per seJthe court has a choice as to whether it should implement the legislature7s standard. 6e need to determine what type of +arm the statute or regulation is trying to prevent and what class of people it is trying to protect to determine if it is relevant. 6e also need to determine if it is setting a standard of care. There is also a recognition that there is an 8e1cused9 violation of certain statutes. 'rguments abound under licensing re4uirements, e1cuses, type of harmAclass of people, and causal lin# between the violation and the damages. Courts will typically 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 designed to 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 <ypothetical: #ey in the ignition statute that imposes a fine on a driver for leaving a #ey in the car and thief hits a O can the O sue the guy that left the guy in his car5 'nother oneJa mental patient comes along - he7s escaped -steals the car and gets into the accident defending himself. <ow would you use the 8type of +armI or Hclass of persons t+at t+e legislature %as trying to protect59 <e li#es this analysis in this situation. a) (artin v) -erFog3 N)L) /0"M i. Gartin7s buggy was struc# by the defendant7s car. The plaintiff claimed negligence on the part of the defendant for failing to remain on the proper side of the road. The defendant claimed the plaintiff was negligent for failing to have her headlights on, which was also a violation of a New ?or# statute. ii. If a statute sets a standard of care and t+e offender breac+es t+e duty to maintain t+at standard3 t+ere still must be a causal connection bet%een t+at breac+ and t+e defendant,s damages) iii. Professor changed the facts into what if the buggy driver didn7t have a license5 There is an argument that it contributed to the damage because the person wouldn7t have been driving or the license really had nothing to do with the fact that the buggy hit the car. The Martin case set out three views as to the role the offense of a statute may play in negligence litigation. 1. =nly evidence of negligence - to be considered by the court when deciding whether there was negligence /. ' prima facie case of negligence - creates a presumption of negligence that can be rebutted by proof that a reasonable person would have acted the way the actor had 2Con its face absent other evidence>3 :. Negligence per se - the violation of a statute is negligence 28in, of and by itself>3 b) Re<ue v) (il%au;ee ' Suburban Transport3 4is) /010 i. Plaintiff sues the bus company here for negligence when she was in.ured getting off the bus because it was more than twelve inches from the curb, a violation of 6isconsin statute. ii. 2"". #hen Standard $f Condu!t %efined &y
'egislation $r (egulation #ill ot &e Ado)ted The court will not adopt as the standard of conduct of a reasonable man the re$uirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively (a) to protect the interests of the state or any subdivision of it as such, or (b) to secure to individuals the en*oyment of rights or privileges to which they are entitled only as members of the public, or (c) to impose upon the actor the performance of a service which the state or any subdivision of it underta!es to give the public, or

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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) (arB am orp) i. Plaintiff was involved in a bar room brawl and suffered amnesia. <e brought suit against the bar owner for negligence per se, as he violated a statute that prohibited him from serving alcohol to 8a person visibly into1icated.9 ii. ourts must loo; to t+e type of +arm and class of persons in a statute3 but also to t+e appropriateness of t+e standard it mig+t set in matters of civil litigation) d) Impson v) Structural (etals3 Inc)3 Te9) /02" i. ' truc# attempted to pass a car within 1CCm of an intersection, which was prohibited by a statute. The plaintiff claimed negligence per se under the violation of the statute. ii. 2""A. *+!used Violations (,) An excused violation of a legislative enactment or an administrative regulation is not negligence" (-) #nless the enactment or regulation is construed not to permit such excuse, its violation is excused when (a) the violation is reasonable because of the actor.s incapacity; (b) he neither !nows nor should !now of the occasion for compliance; (c) he is unable after reasonable diligence or care to comply; (d) he is confronted by an emergency not due to his own misconduct; (e) compliance would involve a greater ris! of harm to the actor or to others" ". Proof of Negligence: *es Ipsa &o4uitur 1. lements that need to be present: a. The accident which produced a person7s in.ury was one which ordinarily does not +appen unless someone was negligent. b. The instrumentality or agent which caused the accident was under the e9clusive control of t+e defendant, and c. The circumstances indicated that the untoward event %as not caused or contributed to by any act or neglect on t+e t+e in$ured person)

part of

/. %asic Concept: *es Ipsa comes into play when there is no evidence as to what caused an accident but it can reasonably be inferred that it was a breac+ of duty. :D

:E Prof comment: If you invo#e this, it can get to the .ury if there is no specific evidence of what happened. !ome .urisdictions say this a presumption, some say inference, some say disappears altogetherL lement 2b3 has been dropped in most .urisdictions because it really isn7t fair, specifically regarding products liability cases. There can be too much evidence to invo#e res ipsa. Gedical malpractice provides a bit of a different approach because an e1pert 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 his wife. (aughter crashed a car and there is no evidence that anything other than daughter7s negligence could have caused the accident 2car flew off a cliff3 ii. Court sets forth elements of res ipsa here. b) Lbarra v) Spangard3 al) /0KK i. ' guy goes under the #nife and wa#es up with a pain in a non)related site that gets worse over time. Plaintiff cannot prove who did it, when, or even how, but invo#es res ipsa. veryone is pretty much sued. ii. Prof thin#s this is the way of smo#ing out the guilty party, 8we #now somebody #nows.9 ourts may +ave t+e go a+ead to let a plaintiff Hsue em allI 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 up getting into an une1plainable wrec# which caused !ullivan7s death. ii. There are degrees to which res ipsa may be invo#edL some warrant an inference of negligence that the .ury may decide, another may re4uire a presumption 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 that he 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

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:F 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 harm would not have occurred. ngineer testifies, however, that it would have occurred. ii. 4+en t+e plaintiff,s +arm %ould +ave occurred even if 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 saw the accident. 6hen the crew members reali,ed that he disappeared, they attempted to rescue him. 6hen the crew finally reali,ed he was gone, there was a rescue attempt. Court said no negligence because there was no causal connection.

ii.

c) Lyons v) (idnig+t Sun i. 'nother speeding car wrec# case. If the truc# weren7t speeding, would the harm have occurred. d) Reynolds v) Te9as !acific Ry) i. &arge woman fell down stairs when she was hurried by the railroad company into a stairwell that had no rail and was not lit. (efendant argues that, even if the company were negligent for not lighting the stair, plaintiff might have fallen 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 <ave <appened59 <eeding Presumption a. "ailure to 6arn i. =bvious ris# - no duty to warn.

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ii. Not obvious but defendant was aware of the ris# - no duty 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 a warning if it had been presentedL defendant then has to prove the O would not have heeded 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 2birth defects, cancer, etc.3 that have some causal association with some things and not with others. 1 in DC people who smo#e for over twenty years get lung cancerJthis guy has it and is suing. 1 in DC of the people who get lung cancer got it because they smo#ed. <ow does this guy prove that smo#ing caused him to get lung cancer, and that he isn7t .ust a bac#ground case5 ven with epidemiological studies, there7s not way to definitively prove cause. It7s much easier with a mar#er disease 2Gesophelioma only happens when you are e1posed to asbestos3. /. The Cases: b. Daubert v) (errell Do% !+armaceuticals3 Inc) i. +.!. !upreme Court CaseJ'lleging birth defects from a drug called %endectinL plaintiffs introduce non)published e1pert testimony to demonstrate the potential for the drug causing the problem. Court overrules the "rye evidence test for the federal rules of evidence. The "rye test was that the evidence should have been generally inadmissible unless the techni4ue is generally accepted 2a#a peer reviewed at least3. ii. Evidence +as to be scientific (factorsJtested3 revie%ed3 rate of error3 general acceptance) and assist t+e tier of fact to understand or determine a fact in an issue (relevant to t+e case)) T+is is a fle9ible rule t+at +as actually made it +arder to get evidence into court) :rof commentF Ahere is a lot of time and effort that now %oes into 4noc4in% out the other side+s eGpert witnesses out. Ahese principles will need to be applied in a %iven case, or at least attempt to apply them. -f you 4noc4 the other side out, you %et summary <ud%ment. c) -ers;ovits v) .roup -ealt+ ooperative of !uget Sound i. Plaintiff alleged that >roup <ealth negligently failed to diagnose <ers#ovits7 cancer on his first visit to the hospital and pro1imately caused a 1@W reduction in his chances of survival. It is undisputed that he had less than a DCW chance of survival.

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:I ii. Loss of c+ance3 even if t+e defendant did not +ave greater t+an a 1MN c+ance of survival 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 or omissions 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 in bringing about harm. iii. The minority of courts refuse to allow recovery for loss of chance unless the plaintiff can establish causation under the traditional negligence standard. The ma.ority allow &=C claims to reach the .ury even when the plaintiff cannot 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 for less than 0H and the ar%ument is that it+s unfair, why should they recover the entire amountIbut then, if you %ive only a percenta%e, why should you have to pay all if it+s #HJ> %. 6hen Two 2or more3 Negligent 'ctors Concurrently 2or successively3 Cause the Plaintiff7s <arm 1. &oint and Several Liability: the doctrine applies where there7s more than one tortfeasor and the damages they each cause are indivisible. It means that the torfeasors are all .ointly liable for any resulting .udgment against them, and each of them is also individually liable for the whole .udgment 2in case the plaintiff sues any one of them instead of all of them3. a. applies when individuals acted independently but the harm is indivisible 2e1. two guys shooting a gun in the direction of the plaintiff and he7s hit with one bullet3. b. applies when there is a concert of action 2e1. drag racers and one hits a #id, but are liable3. c. Prof. comment: Cif you can fi%ure out who is responsible for what then no <oint and several liability.> d. 8%ut for9 test usually will not wor# in this case so gotta go with the *estatement, !econd, of Torts Q @:1)@:: 8an actor7s negligent conduct is a legal cause of harm to another ifJhis conduct is a substantial factor in bringing about the harm.9 /. The Cases: a) -ill v) Edmonds

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@C i. The owner of a tractor truc# on a stormy night left it par#ed without lights in the middle of a road where the car in which plaintiff was a passenger collided with it from the rear, but the plaintiff had enough room to see the car and avoid it. ;;;Gar#s the beginning of the phenomenon of indivisible harm. ii. 6hat if the street lights were off in the hill fact pattern and the city was negligent, would the city also be responsible5 Then we7d have three .oint tortfeasers. 6hat if the car lights were off due to the negligence of the mechanic and the lights contributed to the accident5 6ould that be four .oint tortfeasers5 Is there any arbitrary limit on how many .oint torfeasors you can have5 No, you can have lots of .oint tortfeasers. b) Cingston v) +icago i. Plaintiff7s property was destroyed by a large fire that was the 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 plaintiff7s property. The fire in the northwest was of un#nown origin. ii. 4+en you can,t divvy up t+e damages because it,s impossible3 everybody t+at contributed to it is responsible for all of t+e damages) The court does allude to a possible e1ception if the other tortfeasor had been mother nature. - if the other perpetrator was mother nature than the fire might have happened anyway, therefore no liability. c) Summers v) Tice i. !ummers and the two defendants were bird hunting together 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%ledgeI to apportion damage) 8The basis for a decision li#e this is that the court does not want to send a person who has been in.ured under no fault of their own empty handed. P=&IC?UUUUU iii. ?es, we should still hold them both liable even though one of them is completely innocent. Prof. gives hypo: guy shoots person in one eye and other guy shoots in other eye, is there an indivisible in.ury5 Possibly, blindness might be the whole in.uryJdepends on how you characteri,e the in.ury. d) Sindell v) Abbott Laboratories

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@1 i. The plaintiff is the child of a women who too# ( !, a drug intended to assist in the prevention of miscarriages. The plaintiff claimed to have developed a bladder tumor as a result of the drug and sued D out of /CC 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 plaintiff cannot prove which inflicted it, the burden or proof may shift to each defendant to prove he was not the one that inflicted the harm. /. enterprise liability - an entire industry can be held liable for a product7s shortcomings if the entire industry uses the same product, utili,ing the same tests and strategies for mar#eting of that product. ii. (ar;et S+are Liability T+eory ) If the O can7t prove who manufactured the ( !, the defendants may be responsible for their mar#et share at the time. The idea is that it will all even out over the long run. =ver time, every manufacturer will end up paying their fair share. Ahis has applied to 5$7 and pretty much nothin% else.

5) !ro9imate ause B *rea;fast &urisprudence

'. Pro1imate 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 the courts: 1. (irect Cause: loo#s bac#ward and determines if there are intervening factors that should cut off responsibility. Popular in 4uestions of ggshell !#ull *ule theories, because it really isn7t foreseeable that the plaintiff has an eggshell s#ull. /. "orseeability 2also called the ris# rule3: loo#s forward at what was foreseeable 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, must be personal in.ury. +nforseeable plaintiff is also a sna,,y cop out when needed. %. The <ornboo# 7ome notes from $K$ L ) The plaintiff can usually only recover for in.uries the defendant should have anticipated, or foreseen. If there is some foreseeable in.ury because of the defendant7s action, he is liable for that strictly, and not any further in.ury that results that is unforeseeable. 23a%on Mound, foreseeable oil spill would foul the doc# slips, but not catch fire - defendant liable for doc# slips alone3 ) If a particular type of in.ury is foreseeable, the defendant is liable for the in.ury sustained, even though it might be more severe than anticipated.

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@/ ) The cases distinguish unforeseeable conse4uences of a negligent act from conse4uences 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 was hit by another vehicle when he was wal#ing up a hill to warn oncoming traffic about the oil truc#7s presence in the middle of the road. Is the oil truc# the pro1imate cause of the guy7s in.uries5 b. Pro1imate cause is a fle1ible doctrine. As a general rule3 if t+e defendant 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 to t+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, such as the negligence of the truc# resulting in ne1t accident, and a situation where everything is stabili,ed 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 shot Garshall5 6hat if you are in the vicinity of a prison and then there7s a sign up warning you about this5 (oes that ma#e it more foreseeable5 6hat if an incoming vehicle swerves to avoid the vehicle, flies off a cliff, and lands on a school 2it is filled with e1plosive material3 blows up and destroys school. Is there pro1imate cause here5 ") (c a+il v) Ne% Lor; 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 to property5 (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 e1plosion. 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 ocean that was supposed to be basically non)flammable. The wharf repair crew was using acetylene torches and a spar# hit the water, ignited the oil, and blew up the wharfL the plaintiff7s don7t want a forseeability approach because they b. should have foreseen it also and would be contributorily negligent. ;The 3a%on Mound case in essence overrules :olemis, stating that there must be foreseeability 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 as precedent 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 in thatU53. +nder this logic, the cric#et activity should have been classified as hitting someone 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 specific 2couldn7t foresee blowing up the ship with a spar#3 and if they do, they are very general 2could have foreseen some harm, doesn7t matter what #ind or to what e1tent3. D) !alsgraf v) Long Island R)R) a. *.*. wor#er helped push a guy up on a train when he was trying to .ump on while it was moving and, as a result, he dropped a pac#age containing firewor#s that managed to cause some damage and #noc# over scales that in.ured the woman. The suit was trying to hold the railroad wor#er liable. b. T+e court +olds t+at !alsgraf is an unforeseeable plaintiff3 and t+at t+e RR breac+ed no duty it o%ed to +er) c. 2(issent3 factors of pro1imate cause: must be, at the least, something without which the event would not happen there was a natural and continuous se<uence between cause and effect 6as the one a substantial factor in producing the other5 6as there a direct connection between them, without too many intervening causes5

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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 e1ercise of prudent foresight, could t+e result be foreseen5 Is the result too remote from the cause ) for the greater the distance either in time or 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 the court 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 was wor#ing .ust off the side of the road. The contractors didn7t have a proper barrier in place so the 4uestion become whether the contractor7s negligence was the pro1imate cause of the plaintiff7s in.ury. ii. An intervening act may not serve as a superseding cause3 and 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 ' R)R) 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 was in.ured when a third party threw a match into a pool of the spilled gasoline and it e1ploded. Plaintiff claimed the defendant is liable for negligently spilling the gasoline regardless of the actions by the third party. ii. Court is saying that it,s unforeseeable as a matter of la% t+at a t+ird party %ill commit a criminal act) G) :uller v) !reis i. (r. was hit in an accident and suffered no apparent in.ury at the time, but later decided to #ill himself. ii. Suicide is not a superceding cause as a matter of la%L it does not bar recovery for loss of life. There is an argument that it may be contributory negligence. K) 4agner v) International Rail%ay

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@D i. Plaintiff fell from a bridge loo#ing for his brother who was negligently thrown from the railroad. ii. T+e rescue doctrine 7 defendant o%es a duty to t+e rescuerL If t+e rescue is not %anton=rec;less3 t+en t+e defendant is liable (even t+ird party)) =ne e1ception has been held that there is no liability if the rescuer has not deterred anyone else from rescuing. 'lso, the rescuer must be attempting to actually rescue. ;The defendant need not foresee that a rescuer would come. iii. "rom the Cardo,o perspective, this is carving out an e1ception to his unforeseeable plaintiff doctrine, that rescuers are still allowed to recover. . 8Playing the (uty Card9 /) -amilton v) *eretta A)S)A) orp. i. ' huge class action from victims of hand guns against manufacturers for negligence. ii. 's a general rule, a defendant is not liable for criminal acts of a third partyL Special relations+ip e9ception: there is a relationship either between M and third person tortfeasor that encompasses defendant7s actual control of the third person7s actions, or between defendant and plaintiff that re4uires defendant to protect plaintiff form the conduct of others. 2defendant controls a t+ird party or o%es a duty to protect plaintiff3.

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 e1ceptions: special relationships running between a common carrier and its passengers, a school and its students, and an employer and its in.ured 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 to prevent the ris# from ta#ing effect. /. The Cases: a) Lania v) *igan i. ' guys basically gets dared into .umping /Cft into a pool of water and drowns. The defendant .ust watched and did not help.

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@E 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 !aused such bodily harm to another as to ma!e him helpless and in 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 duty

here if you use this restatement and argue 8cause.9 b) Eerie R) o) v) Ste%art i. *ailroad company normally has a watchman out. =ne night he wasn7t out and a guy, who #new him to be there when danger was present and relied on him, moved out onto the trac#s and was #illed. ii. If t+e defendant +as caused t+e plaintiff to rely on a standard 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) L)S) Ayres ' o) v) -ic;s i. <ic#s, a si1 year old boy, was shopping at the defendant7s department store when he slipped on the escalator. The fall caused <ic#s to catch his fingers in the escalator. ii. there may be a legal obligation to ta#e positive or affirmative steps to effect the rescue of a person who is helpless and in a situation of peril, when the one proceeded against is a master or an invitor or when the in.ury resulted from use of an instrumentality under t+e control of t+e defendant) !uch an obligation may e1ist although the accident or original in.ury was caused by the negligence of the plaintiff or through that of a third person and %it+out any fault on t+e part of t+e defendant. iii. Prof. Comment: CAhe thin% to ta4e away is that it doesn+t matter whether the defendant was ne%li%ent or not. Ahe defendant is the only one available to assist the plaintiff and the defendant+s failure.> 7pecial relationship may %ive rise to a duty. d) &)S) and ()S) v) R)T)i. ' wife might have #nown that her husband was molesting children over a period of years. The issue was whether she had a duty to act on that #nowledge or not.

@E

@F ii. 6hen a spouse has actual #nowledge or special reason to #now of the li#elihood of his or her spouse in engaging in se1ually abusive behavior against someone, the spouse has a duty to ta#e reasonable steps to prevent or warn of the harm. ' person who has a measure of control over another has a duty to attempt to control them in certain situations. e) Tarasoff v) Regents of Aniversity of alifornia i. Case where the psychologist heard a guy say that he was going to #ill someone. <e told the cops and the cops determined that he was o#. Then he #illed the person. ii. Special relations+ip 7 an e9ception to t+e general rule t+at a defendant o%es no duty to %arn of is control over t+e conduct of a t+ird person) This relationship e1isted between the psychiatrist and the victim. iii. Professor comment: &emember in Aarasof the baseline rule is that you don t have a duty to prevent a third party from preventin! harm to another or prevent them from committin! suicide. Ahis is the %Mr. %. &imitations on *ecovery for Pure conomic &oss 1. >eneral Principles: 's a general 2bright line3 rule, you cannot recover for economic damages alone but can recover for them when there has been some personal or property in.ury. Vuasi property interests might be enough, li#e a fishing company that lost money because a chemical spill #illed off the fish supply. ?ou need to also loo# to whether 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 considerably economic damages. ii. court upholds the bright line rule 2no recovery for pure economic 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 losses incurred by a contractor that failed to completely timely repairs. ii) &,Aire :actors6

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213 the e1tent to which the transaction was intended to affect the plaintiff 2/3 the forseeability of harm to the plaintiff 2:3 the degree of certainty that the plaintiff suffered in.ury 2@3 the closeness of the connection between the defendant7s conduct and the in.ury suffered. 2D3 the moral blame attached the to the defendant7s conduct 2E3 the policy of preventing future harm c) !eople E9press Airlines3 Inc) v) onsolidated Rail orp) i. The defendants7 negligence resulted in lea#ing chemicals which caused the airlines to close down and suffer loss of business for a few days. ii. This court holds that economic losses are recoverable without 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 considering 8emotional distress9 as damages under negligence) Impact rule - there can be no recovery for distress without actual impact 2at one time was 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 victims 2i.e. those that are emotionally in<ured by ne%li%ent notification of death, ne%li%ent handlin% of corpses, ne%li%ent child birth cases !somethin% happens to the baby and the mother either witnesses it or finds out soon thereafter", ne%li%ent handlin% of %enetic material, cancer phobia cases, A-57 phobia, etc.) are usually allowed to recover. &iability is generally imposed for the mishandling of a loved one7s corpse. /. The Cases: a) Daley v) La roi9 i. ' vehicle struc# a utility pole which caused an e1plosion that in.ured the plaintiff7s property and 8emotionally distressed them.9 ii. Court overrules the impact rule. 6here a definite and p+ysical in$ury is produced as a result of emotional distress pro9imately caused by t+e defendant,s negligent conduct, the plaintiff may recover even though he did not suffer any physical impact. b) T+ing v) La +usa

@H

@I i. ' woman came upon a crash seen and saw that her son was badly in.ured. !he wasn7t impacted or in the ,one of danger but was emotionally distressed. 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$ury tot t+e victim (G) as a result suffers emotional distress beyond %+ic+ %ould be anticipated in a disinterested %itness) iii. 8These are bystander recovery casesJmy son was watching T0 when the challenger blew up and he was upset for a long timeJshould he have been able to recover under NI (59 ;+nder 5illion the elements for recovery are semi)feli1ble. +nder Ahin% they become strict. (. <arm to +nborn Children 1. >eneral Principles: a. 6rongful Conception: The doctor botched the sterili,ation and a woman gets pregnant. If the child is born, the courts will allow recovery for medical e1penses from birth but not child rearing e1penses unless the child is born with a handicap. b. 6rongful %irth: The doctor failed to warn of some defect, and the parents would have chosen to have an abortion if they had #nown. *oe v. 6ade #ic#ed this off, recovery for negligently 8ta#ing away the right to choose.9 !ome courts will allow recovery, some will not, some allow for general damages, some do not. A parent brings t+is claim. c. 6rongful &ife: T+is is a c+ild,s claim. Courts are reluctant to consider this complaint because it is almost li#e arguing over whether someone would have been better off not born at all. This occurs when a child has a defect or disability. /. The Cases: a) 4erling v) Sandy i. The plaintiff brought a complaint alleging that the doctors were responsible for their child7s stillborn birth. ii. Action for t+e deat+ of a fetus in utero or a stillborn infant is allo%able as long as t+e in$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 who failed 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 for e1traordinary medical e1penses until the #id reached the age of ma.ority and then he would receive the money. ;<ere the court reiterates its reluctance to allow recovery for impaired childhood and basically say that it would have been better for the #id to have never been born.

5II) #%ners and #ccupiers of Land

'. (uties =wed to ntrants on the &and 1. Trespassers: If the trespasser is un;no%n, there is a duty only to refrain from %anton or rec;less conduct) If the presence is ;no%n - or should be #nown - the land owner is under a duty of care to warn of hidden dangers or use reasonable care. Constant trespassers are afforded a higher duty of care, because the land owner has given implied consent 2unless they convert them to full trespasser with something li#e a 8no trespassers9 sign3. a. *estatement !econd of Torts, Children TrespassersL attractive nuisance doctrine:
,,9. Artifi!ial Conditions -ighly %angerous To Tres)assing Children A possessor of land is sub*ect to liability for physical harm to children trespassing thereon caused by an artifi!ial !ondition upon the land if (a) the place where the condition exists is one upon which the possessor !nows or has reason to !now that children are li!ely to trespass, and (b) the condition is one of which the possessor !nows or has reason to !now and which he reali+es or should reali+e will involve an unreasonable ris! of death or serious bodily harm to such children, and (c) the children because of their youth do not discover the condition or reali+e the ris! involved in intermeddling with it or in coming within the area made dangerous by it, and (d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the ris! to children involved, and (e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children"

/. &icensees: persons who are on the land with the e1press or implied consent of the owner but are there for their own purpose, i.e. social guests, entrants that DC

D1 use short cuts, distribute advertising leaflets, come to borrow tools, or solicit charitable contributions. Land o%ners generally +ave a duty to conduct activities on t+e land in a 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 the owner.> Ahe full reasonable care standard applies. *estatement !econd of Torts Q ::/ recogni,es two categories of invitees: 213 persons who are invited to come on the land for a purpose connected with the business dealings of the possessor and 2/3 persons who come on the land as a member of the public for a purpose for which the land is held open to the public. There are public invitees 2person entering a public library to borrow a boo#, a person entering a drugstore to use the public telephone3 and business visitors 2store customers, building constructors3. 'ccording to the horn boo#, a land occupier owes invitees a duty to use reasonable care to inspect and discover the presence of any dangerous natural or artificial conditions or activities and to e1ercise due care to %arn invitees of such dangers or ma;e t+e conditions or activities safe. @. =ther general principles: The statuses flip bac# and forth, one minute might be a licensee until they brea# out the Tupperware idea and then they become an invitee. The purpose for being in a public place matters 2sitting in the par#ing lot to sociali,e is not being there for invitee purposes3 as does a failure to ta#e action against consistent trespassers. :irefig+ters Rule - can7t ta1 twice in many states, fire fighters aren7t able to recover for in.ury on premises as a matter of public policies unless it is negligence ot+er t+an t+at %+ic+ causes t+e need for intervention by t+e plaintiff) Recreational Ase statutes often let people who open their land up to the public for no money 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 and doesn7t #now if he was thrown into or purposefully wal#ed into the section of the trac#s and was hit by a train. <e was severely in.ured. ii. T+e visitor +as t+e status of an invitee only %+ile +e is on part of t+e land to %+ic+ +is invitation e9tends) In t+is case3 +e %as not an invitee %+ile on t+e trac;s. The status of an accidental trespasser is still that of a trespasser. b) Ro%land v) +ristian i. ' social guest was at a woman7s apartment and cut her hand on the defendant7s faucet. The defendant #new the faucet was in a bad condition. The duty to licensees in California at the time was to refrain from willful or wanton misconduct. ii. The California duty to a licensee was to refrain from wanton or willful in.ury with two e1ceptions: 213 active conduct of negligence 2/3 hidden trap 2spring gun type of thing3. California could have stretched this case under the second e1ception or broadened the duty to a licensee. California court gets rid of categories altogether, most courts don7t follow. &ays out the 8*owland factors9 on p. :FD. ;The California court in this case was the first to get rid of the categories, stating that 8a man7s life and limb is not worth less because he is not on a property for a business purpose.9;;;P=&IC? c) get status as an invitee. ii. Court says nope. Prof. comment, 8In this situation, does the licensee category wor# well5 !o maybe this is a case where the categories wor# sort of an in.ustice.9 ;The court reiterates in this case that if an owner of land 8throws open its doors to the public9 everyone that enters is an invitee. arter v) Cinney i. >uy slips on ice while going to a bible study and tries to

D:

D@ %. (uties to Those =utside the Premises 1. >eneral Principles: +nder common law there are two categories of liability: natural 2no liability3 or artificial conditions 2reasonable care standard3 and activity. The boo# gives an e1ample of an artificial condition coming from the land as a baseball being hit and impacting someone outside the par# versus natural conditions li#e snow melting and flooding someone else7s yard, etc. There are tric#y areas to this rule when trees fall from land onto roads or sidewal#s. Gany courts ma#e a distinction between rural and urban trees. /. The Cases: a) Taylor v) #lson i. Plaintiff7s car ran into a tree that fell across the road into the en.oining highway. The tree was on the defendant7s land ii. (iscusses categories of duty between rural 2no opinion on a duty3 and urban 2due care3 areas and abandons the categories and says there was a duty to inspect and the .ury should decide whether that duty was breached. C. (uties =wed by &essors 1. >eneral Principles: Ga.ority of courts recogni,e this duty with these e1ceptions: +nless the vendor #nows of the dangerous condition and conceals it from the purchaser, he is not liable for in.uries 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. 1ceptions: i. ' hidden danger in the premises of which the landlord but not the tenant is aware. ii. Premises leased for public use. iii. Premises retained under the landlord7s control, such as common stairways. iv. Premises negligently repaired by the landlord /. The Cases: a) Sargent v) Ross i. Plaintiff7s four year old daughter fell to her death down defendant7s stairwell. The landlord was sued for negligent construction and maintenance

D@

DD of the stairway which was added to the building by the defendant about eight years before the accident. ;The court basically see#s to shift the 4uestion from 8who had control here59 to 8did both parties e1ercise due care under the circumstances59 ii. !crapped the categories. Prof comments, 8if the landlord repairs and someone is hurt than it meets an eGception and is liable so there are no incentives for the landlord to repair. Ahe renters really don+t have an incentive either, bMc it+s not their property.9 (. Premises &iability: !ecuring 'gainst Crime 1. >eneral Principles: Courts are reluctant to impose a duty of reasonable care to protect against criminal conduct, but there are e1ceptions. !ome courts do find that business owners have a duty to implement reasonable measures to protect their patrons from criminal acts when those acts are foreseeable. The ma.ority of courts do impose liability on lessors for failing to maintain reasonable security. /. The Cases: a) !osecai v) 4alB(art Stores3 Inc) i. 6oman was mugged in the !am7s store and had B1I,CCC of .ewelry on her. The plaintiff alleged that !am7s failed to e1ercise reasonable care to prevent crime in the par#ing lot and sued for negligence. ii. &oo#s closely at forseeability and a number of tests that were available to the court, adopting the 8balancing test9 and determining that crime was rare in the par#ing lot, so it was not foreseeable enough to put a security guard in the par#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 in.uries, and that falls below the standard to which she is re4uired to conform for her own protection. ;%asically does not allow recovery, not matter how small plaintiff7s fault was. The court thought this was a little too harsh, so it instituted e1ceptions: a. 1ceptions:

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DE i. Last lear +ance, if plaintiff was negligent but was in a position of peril unable to e1tricate herself from danger and the defendant discovered the plaintiff7s peril, then plaintiff7s contributory negligence was not a bar. In other words, the plaintiff7s negligence contributed to the in.ury but the defendant had the last chance to avoid the in.ury and, therefore, plaintiff was helpless. ii. (efendant7s conduct constituted an intentional tort or could be c+aracteriFed as rec;less or %anton, contributory negligence is not a defense. b. The Cases: i) *utterfield v) :orrester aa. Plaintiff was in.ured by a pole that defendant put up in the middle of the street. <e was thrown from his horse and severely. <e was speeding on his horse and should have seen the pole from 1CC yards away. bb. The court refused to allow the plaintiff to recover and set forth the doctrine of contributory negligence. /. omparative Negligence N6 2now adopted by virtually all states3 re.ects the notion that contributory negligence is always a complete bar to recovery by the plaintiff. Instead, the approach attempts to individuali,e accident recoveries by placing the economic Xsting9 on the parties in proportion to their fault. a. !ure omparative: is ICW at fault, then the he can still recover for 1CW of damages. c. (odified omparative: There are two types of .urisdictions for this: a. @IW ) plaintiff7s amount of fault can7t be over b. DCW ) plaintiff7s amount of fault can7t be over c. If there are multiple defendants, the vast ma.ority of courts allow a the defendants7 fault percentages to be aggregated when being compared to the plaintiff7s. i. (1 - 1CW, (/ /DW, (: /DW ) P@CW ii. 'bove is really - P@CW, (s7 ECW c. The Cases: i) (cIntyre v) *alenstine a. Plaintiff was into1icated when he was struc# in his truc# by the defendant who had also been drin#ing and was driving a tractor over the speed. This is a case showing the movement from contributory negligence to comparative negligence.

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ii) Alami v) 5ol;s%agen of American Inc) a. ' drun# guy rammed into a pole and died. The widow 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 criminal conduct - driving while into1icated - was a bar to recovery. b. Courts may not bar recovery if the plaintiff was in.ured while committing a crime if it is a matter of public policy.

d. The effect of the shift on other law: Gost court have abandoned last clear chance. !ome have abandoned .oint and several liability. Intentional torts and rec#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 a plaintiff that is more at fault than any one single defendant but less than the aggregate fault of all defendants. Gost will allow it. :. 'ssumption of the *is# a. E9press assumption of t+e ris;: 2still alive after comparative negligence3 This usually ta#es the form of e1culpatory clauses in a contract, but courts will apply it to sports at times. 'n e1culpatory clause may or may not be enforced by a court if the harmful conduct is negligent 2contract law play a part, e1. adhesion contracts3. <owever, intentional torts or rec#less or wanton conduct is N 0 * enforceable. i) &orst v) D,Ambrosio *ros) Investment o) aa. Plaintiffs signed a release for riding on a horse ranch and end up hitting a P0C pipe on the trac#. They sued, and the court considered whether the contract was enforceable. bb. "or a release to be enforceable, C' courts identified three elementsL 1. the release must have been clear and unambiguousL /. the act of negligence that caused the in.ury must have been reasonably related to the ob.ect or purpose for which the release is givenL :. the release must not be contrary to public policy. ii) Tun;l v) Regents of Aniversity of alifornia

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DH aa. Note case, professor comment, 8Ahis is a landmar4 case (si%nificant decision) which involved the patient that was in a hospital and si%ned a release. As lon% as the hospital was ne%li%ent in the selection of employees the hospital was not liable (contract). Ahe court set forth some factors but primarily loo"ed at the fact that it was an adhesion contract# ta"e it or leave it. 3hat about arbitration a%reementsJ -f you wanna come here you %otta a%ree to arbitration. -t can happen but doctors hardly lose in A@ so why would they.9 b. Implied Assumption of t+e Ris;: 2pretty much disappears after comparative negligence doctrine3 absent a contract, there may be implied assumption of the ris# if the plaintiff, by conduct, can be held to have voluntarily assumed the particular ris# involved. i. !rimary is a duty analysis, pretty much. 2%uy is in the bleachers and %ets hit by a ball, another way to say this is /O 5NA=Icomparative ne%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, pretty muchJin other words, there was a breach of a duty but the plaintiff7s confrontation of a ris# was negligent. (O voluntarily confronts a 4nown ris4, what about comparative dama%es, does secondary implied assumption of the ris4 surviveJ Often it does not because this doctrine is basically subsumed under comparative ne%li%ence, should no lon%er be a complete bar to recovery3 iii) *lac;burn v) Dorta aa. No facts. %asically loo#s at home many courts approach assumption of the ris#Jwe don7t have to call it that anymore, it is .ust merged into the concept of comparative negligence when the court is assessing whether the plaintiff was reasonable in her conduct. iv) Turcotte v) :ell aa. Professional .oc#ey in.ured during a race. The O charged foul riding and negligent maintenance of the premises along with several other things. bb. .eneral rule as to coBparticipants in sports6 t+eir conduct +as to be somet+ing more t+an negligence. Prof comment, 8the basic 8uestion is when should that no duty under assumption of the ris" concept bar A@@ recovery rather than reduce recovery.> @. 'voidable conse4uences: The plaintiff has a duty to mitigate the damages - the focus is after the in.ury. 'n in.ured party must act reasonably to minimi,e her loss or in.ury, and where the damages are unnecessarily aggravated or increased

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DI through her failure to do so, the additional damages are N=T recoverable. (= N=T C=N"+! T<I! 6IT< C=NT*I%+T=*? N >&I> NC . This affects only the damages and this failure to ta#e reasonable measures in no way contributed to the accident, e1. is not wearing a seatbelt. a) *ryant v) alantone i. ' guy had a heart murmur and was told to ta#e a certain amount of medicine before he had any dental wor# done. <e told the doctor that he was supposed the ta#e the antibiotics wee#s before the dental wor# and doctor said he didn7t need it and simply gave him a pill. The guy was fine until he suffered severely later on. The 4uestion became whether the guy failed to ta#e reasonable precautions by not as#ing for medication or a prescription afterwards. ii. Prof comment, 8the doctrine of avoidable conse8uences should have been char%ed to the <ury. Ahe doctrine proceeds on the theory that a plaintiff who has suffered an in<ury as the proGimate result of a tort cannot recover for any position of the harm that by the eGercise of ordinary care he could have avoided.9 iii. Potential test material - comparative negligence vs. avoidable conse4uences and damages in a modified comparative negligence .urisdiction. The #ey is to focus on 8post treatment9 for avoidable conse4uences. %. Non)Conduct %ased (efenses 1. Immunities a. Gost interfamily immunities have been dropped with two e1ceptions preventing a child from suing his or her parent: 213 where the negligence involved parental discipline over the child 2/3 where the negligence involved e1ercise of normal parental discretion over such matters as providing food, housing, and medical services. b. Charitable Immunities: 2some re.ected, some still around, some around with a cap on recovery3 reasons that support charitable immunities: 213 tort recoveries would invade 8trust fund9 2/3 tort claims would put charities at ris#L however, insurance has put somewhat of a cap on that. c. >overnmental immunity: Gost governments have limited immunities still. :ederal Tort laims Act (:T A) abolished tort immunity against the federal government with some e1ceptions: .=R t+e federal government is not liable for intentional torts unless it is committed by a la% enforcement officer. The discretionary function e1ception is made to prevent the government for being sued for policy reasons. T+e :eres doctrine 2landmar# !upreme Court military case3 prohibits an active duty military service member from suing the government from pretty much anything 2incident to service3.

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i. Tippett v) Anited States - Goose attac#ed a group of snow)mobile fol#s and they sued, but the government contended that it was immune under the "ederal Tort Claims 'ct 8discretionary function9 e1ception. :eople have to have 7OM$ choiceMdiscretion, almost alwaysIloo4 at the malpractice case mentioned in the notes. 9ow does it wor4 when you have a physician treatin% a patient or doin% sur%eryJ :hysicians ma4e choices. 3e will hold the %overnment liable for malpractice under the ?A*AI.the BonPaleP act says that when you sue a %overnment physician the N7 is also a party. Ahat is not deemed to be a discretionary function. *ase law is pretty clear that medical malpractice does /OA come under this eGception. d. Gunicipality immunity - Riss v) ity of Ne% Lor;: cra,y case where the woman sued the cops because they failed to protect her from her cra,y stal#er. !he ended up having lye sprayed in her eyes and nearly going blind. This case .ust demonstrates arguments on both sides for why the state should be immune. /. !tatutes of &imitation may prevent suit from being brought. :. !tatues of *epose limit liability within a number of years for specific groups 2architects, engineers, manufacturers, etc.3.

IQ) &oint Tortfeasors

'. Comparative negligence and uniform tort acts have had drastic impacts on .oint and several liability in the several states and there are many different ways of apportioning damages. %. 'ctors may be .ointly liable when: they are acting in concert, liability is opposed by operation of law 2doctrine of respondent superior3, and when there has been an indivisible in.ury occur.

Q) Strict Liability (no fault necessary)

'. Possession of 'nimals a. >eneral *ules i. Livestoc; - typically strict liability standard ii. Domestic Animal ) typically negligence standard unless the following strict liability elements are met. Note, however, that the focus is on the individual animal and not the class of animals such as dog or even rottweiler. 'lso, the damage must be related to the #nown vicious propensity:

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E1 aa. The defendant #ept the animal bb. The animal had vicious propensities 2every dog entitled to one bit idea3 cc. The defendant #new or had reason to #now 2scienter3 iii. 4ild Animal - typically strict liability standard as long as the harm 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 in.ured. ii. This case addresses whether contributory negligence can be established 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 dangerous condition or activity on his premises or engages in an activity that presents an unavoidable ris# of harm to the person or property of others may be liable for the harm caused even if the defendant has e1ercises reasonable care to prevent the harm. The issue is determining what constitutes an abnormally dangerous activity.
b" (estate.ent /19 i" 2ne who carries on an abnormally dangerous activity is sub*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, the possibility of which ma!es the activity abnormally dangerous"

c. *estatement factors to consider when determining if an activity is abnormally 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 e1ercise 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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E/ d. 1tras: (oesn7t have to be commercial, can be any activity. *is# not eliminated by due care. <eart of the test. 'lso, common usage. Cars aren7t abnormally dangerous because of their common use. %ut if operating a tan#, different. 'viation used to be an abnormally dangerous activity. Now, if plane falls on house, then strict liability. =r, if guy is doing stunts in a plane, strict liability - probably in a car too, for that matter. 'ssumption of the ris# may be a defense: any voluntary encountering of a #nown ris# may prevent the plaintiff7s recovery.

QI) Trespass to Land and Nuisance

'. >eneral Principles: the tort of nuisance protects one7s right to the use and en.oyment of property. +nli#e trespass, which protects against physical invasion of property by another, the tort of nuisance protects against intangible invasion of one7s land. It is fairly fle1ible. The distinction between nuisance and trespass is very important: 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 plaintiff7s interest in the use or en.oyment of her property the results in substantial and unreasonable +arm to plaintiff,s interest in the use and en.oyment of the land. a. !ubstantial means that a reasonable person would be offended by it, not .ust a grouchy neighbor. b. +nreasonable means that, ta#ing all the factors into consideration, the harm done by the interference out%eig+s .ustifications for the defendant7s conduct. /. ' public nuisance is an act by a defendant that obstructs or causes inconvenience or damage to the public in the e1ercise of rights common to all, or in the en.oyment or use of common property. :. ' plaintiff usually cannot bring an action for public nuisance unless he or she suffered an in.ury 8peculiar in ;indI 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 to O it if also bloc#s her driveway3. ' private Nuisance plaintiff must +ave possessory interest in t+e land meaning he or she is either in actual possession or has the right to immediate possession. lements of a private nuisance: 1. a basis for liability /. significant harm

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E: :. an unreasonable invasion of the plaintiff7s land C. (efendant7s Conduct 1. (estate.ent "22

3asis of liability may be& (a) unintentional and unreasonable (b) unintentional and otherwise actionable under the rules controlling liability for negligent or rec!less conduct, or for abnormally dangerous conditions or activities"

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

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YIII. ('G'> !
'. Compensatory (amages B. $K$ notes a. lements of Compensatory (amges i. Gedical e1penses -past, present and future medical bills are recoverable ii. &ost arnings and arning Capacity - the .ury wor#s to determine what loss of capacity is, especially in a situation where the person is not in the career they were always going to be doing. iii. Pain and !uffering - a catch)all term that in reality covers any sub.ective reaction to an accident iv. &oss of n.oyment of &ife - self e1planatory5 C. Case notes a. Primary instrument of recover in torts cases. 'im is to 8restore plaintiff to her pre)in.ury condition by paying an amount e4ual to the value of the interests that the defendant has diminished or destroyed.9 b. Cases i. Anderson v. 7ears, &oebuc4 K *o 1. ' sears heater blows up and burns down the house in.uring a mom, a dad, and their baby girl 2the latter being in.ured very badly and permanently3. /. The court loo#s at the amount of compensatory damages to decide if they are e1cessive. T+e court applies t+e Hma9imum recover ruleI %+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. *hapman 1. Two women are involved in a collision. =ne is paraly,ed and awarded a mother)load in awards. 's in last case, court loo#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$udice c) S+oc;s t+e $udicial conscience

c. Geasuring losses i. The court will sometimes modify awards

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EE ither they will calculate future inflation in economy and raise the award or /. They will reduce the award to a value that reflects the ability 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 was going to pursue a particular career 2person in.ured while in law school or med school3 then the court will factor in the average pay for that career specifically iii. Compensatory damages are not ta1ed as income, even if they represent lost waged d. Non)economic losses 2pain and suffering etc.3 i. Cases 1. Mc5ou%ald v. Barber a. &ady went into permanent comatose while delivering baby due to doctor7s malpractice b. The court was loo#ing at the rewarding for loss of en.oyment to a comatose person. T+e court decided for an a%ard for loss of en$oyment of life3 t+ere must be some cognitive a%areness prere<uisite) e. Geasuring economic losses i. Cases #. *oyne v. *ampbell a. (octor is in.ured in car wrec# and has in.uries in e1cess of /,CCC. <e got his doctor friends to fi1 him for free, but still tried to get the money from the defendant. b. The court says here that the doctor can7t recover because it would be, in effect the defendant paying the value of a gift. C=?N I! ' GIN=*IT? P=!ITI=N) ") (ost courts use t+e ollateral Source Rule3 %+ic+ says evidence t+at a plaintiff received some sort of compensation for +is in$uries from a t+ird party3 or anyone besides t+e defendant3 is inadmissible in court a. The idea here is not to give the plaintiff double the amount of money, but to still punish the defendant and not let the .udgment against him be less .ust because the plaintiff has, say, insurance.To ma#e sure the plaintiff doesn7t double dip, the court allows through subro%ation insurance companies 1.

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EF and other parties to collect finances they have paid out 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 the negligent defendant was liable for the further damage to her #nee. b) T+e court uses t+e Hreasonable prudent personI 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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